Delgamuukw v. British Columbia

No. 0843 Smithers

Registry

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IN THE SUPREME COURT OF BRITISH COLUMBIA

Between:

DELGAMUUKW, also known as KEN MULDOE,

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

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=

REASONS

FOR

JUDGMENT

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=

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No. 0843

Smithers Registry

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__

IN THE SUPREME COURT OF BRITISH COLUMBIA

Between:

DELGAMUUKW, also known as KEN MULDOE,

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

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__

Reasons for Judgment of The Honourable Chief Justice Allan

McEachern

Dates of Trial: 374 Days between May 11, l987 and June 30, 1990

Counsel:

Stuart Rush, Peter Grant, Louise Mandell, Michael Jackson,

Murray Adams, Stanley Guenther, Leslie Pinder, Michael Fleming

and David Paterson for the Plaintiffs

D.M.M. Goldie, Q.C., C.F. Willms, P.G. Plant, N.J. Prelypchan,

J.M. Mackenzie, T.A. Sigurdson, L.A. Fenlon, and D.J. O'Byrne

for the Attorney General of British Columbia

J.A. Macaulay, Q.C., M. Marvyn Koenigsberg, Loryl D. Russell,

Murray T. Wolf and Michael W. Frey for the Attorney General of

Canada

Date: Friday, March 8, 1991

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Index

i

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INDEX

Page

Summary of Findings and Conclusions

Part 1. Introduction

vii

1

Part 2. The Claim and the Territory: An Outline

8

Part 3. Definitions

1. Ownership

24

25

26

27

29

2. Aboriginal Rights

3. Indian Title

4. Jurisdiction

(a) Jurisdiction over land

(b) Jurisdiction over people

5. Aboriginal Interest

Part 4. An Historical Overview

1. The Pre-Historic Period

2. Early North American Exploration

3. The 1700's

30

31

37

42

46

51

54

4. The Proto-Historic Period

5. The Historic Period

6. The Colony of British Columbia

Part 5. The Plaintiffs

1. Present Social Organization

2. Band Councils

64

76

78

3. Tribal Councils

Part 6. The Nature of the Action

l. The Plaintiffs

81

90

91

2. The Plaintiffs' Claims against Canada

3. The Counterclaim of the Province

Part 7. Some Comments on Evidence

93

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Index

ii

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Part 8. The History of the Gitskan and

Wet'suwet'en People

111

1. General

111

114

2. Specific Kinds of Evidence

(a) Hearsay, and Declarations by

Deceased Persons

(b) Recollections of Aboriginal

Life

118

(c) Adaawk and Kungax

122

127

133

147

(d) Archaeological Evidence

(e) The Seeley Lake Medeek

(f) Genealogical Evidence

(Ms. Harris)

(g) Ms. Marsden's Evidence

(Origins and Migrations)

(h) Linguistic Evidence

(Dr. Rigsby and Dr. Kari)

(i) Historical Geography

(Dr. Ray)

150

151

162

168

3. Conclusions on the History of the

Gitksan and Wet'suwet'en People

Part 9. The Remaining Legal Issues (Short Form)

171

Part 10. The Creation of Aboriginal Interests

1. The Underlying Title of the Crown

2. The Province's Preliminary Position

3. In What Circumstances do Aboriginal

Interests Arise?

172

177

179

(a) By Long Time Aboriginal use

of specific Territory

179

(b) By the Royal Proclamation, 1763

181

184

192

203

218

(i)

Geography

(ii) History

(iii) Analysis

4. Conclusions

Part 11. The Relevant Political History of

British Columbia n the Pre-Colonial

and Colonial Period

219

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Index

iii

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Part 12. The Relevant Political History of the

Province from Union with Canada in

1871 to the Present

291

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Index

iv

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Part 13. The Authorities, and some Comments

1. Introduction

415

417

420

2. The Authorities

(1) R. v St. Catherine's Milling

and Lumber Company

(2) Calder v. Attorney-General

for British Columbia

(3) The Hamlet of Baker Lake v.

Minister of Indian Affairs

and Northern Development

(4) Guerin v. the Queen

(5) R. v. Sioui

431

438

443

448

454

464

(6) R. v. Sparrow

3. Summary of Authorities

Part 14. The Plaintiffs' Specific Claims for

Aboriginal Interests

468

469

472

1. The Status of the Plaintiffs in

this Action

2. Aboriginal Jurisdiction and

Ownership

(a) The Relevant Date

474

478

(b) Aboriginal Jurisdiction and

Ownership Before British

Sovereignty

(i)

Aboriginal Jurisdiction

or Sovereignty

482

(ii) Aboriginal Ownership

3. The Effect of British Sovereignty

4. Conclusions on Jurisdiction and

Ownership

495

500

504

5. Aboriginal Rights

507

(a) The Requirements for Aboriginal

Rights

(i)

Ancestors in an Organized

Society

508

510

511

(ii) The Occupation of Specific

Territory

(iii) The Exclusion of Other

Organized Societies

(iv) Occupation Established

at Time British

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Index

v

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Sovereignty Asserted

(v)

Long Time Aboriginal

Practices

511

(b) The Nature of Aboriginal Rights

(i) Generally

(ii) Commercial Activities

(iii) Exclusivity

6. Conclusions on Aboriginal Rights

512

514

517

520

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Index

vi

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Part 15. Extinguishment and Fiduciary Duties

521

1. General Principles

521

542

2. Extinguishment of Aboriginal Rights

of Jurisdiction and Ownership

(a) Aboriginal Jurisdiction

(b) Aboriginal Ownership of Land

3. Extinguishment of Aboriginal Rights

4. Fiduciary Duties

542

543

546

552

575

5. Conclusions

Part 16. Damages

577

581

Part 17. The Lands Subject to Aboriginal Rights

at the Date of British Sovereignty

1. General

581

588

599

2. The External Boundary

3. The Internal Boundaries

(a) General Discussion

(b) The Preparation of Territorial

Affidavits

(c) Discussion

4. Uncertainities

5. Evidence about Discrete Territories

6. The Details

7. Conclusions on Internal Boundaries

8. General Aboriginal Rights

(a) Alternative No. 1

600

610

611

614

627

630

633

637

639

640

(b) Alternative No. 2

(i)

Gitksan

(ii) Wet'suwet'en

(c) Alternative No. 3

(i)

(ii) Wet'suwet'en

9. Conclusion

Gitksan

Part 18. Abandonment of Aboriginal Rights

1. Discussion

644

649

2. Gitksan Territories

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Index

vii

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3. Wet'suwet'en Territories

4 Conclusions on Abandonment

660

665

Part 19. Other Defences

668

670

Part 20. The Counterclaim of the Province

Part 21. The Judgment in this Case

Part 22. Some Comments

673

675

Maps

Map 1. Generalized Map of British

Columbia showing Territories claimed

by Gitksan and Wet'suwet'en Peoples

(not to scale).

9

Map 2. Reduced copy of map of the Territory

showing an early version of External Boundary

with some principal features added (Ex. 1243).

10

11

Map 3. Reduced copy of Overlay Map

(Ex. 646-9A) showing Gitksan Internal

Boundaries.

Map 4. Reduced copy of Overlay Map

(Ex. 646-9B) showing Wet'suwet'en

Internal Boundaries.

12

Map 5. Further copy of Map 2 showing areas

subject to Plaintiffs' aboriginal rights at

time of British sovereignty.

643

Schedules

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Index

viii

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Schedule 1. Itinerary of view of territory

June, 1988

682

689

Schedule 2. Description of plaintiffs,

from Amended Statement of Claim

Schedule 3. Copy of Royal Proclamation, 1763

694

701

Schedule 4. Extract of submission of province

on oral histories

Schedule 5. Territorial Affidavit of William

Blackwater, (Ex.605)

745

784

Schedule 6. Summaries of Territorial Arguments

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Index

ix

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SUMMARY OF FINDINGS AND CONCLUSIONS

1. The last Great Ice Age, which lasted many thousands of

years, covered nearly all of British Columbia. It ended about

10,000 years ago.

2. The origins of the Gitksan and Wet'suwet'en and other

aboriginal peoples of the north-west part of the province are

unknown. It is generally believed they migrated here from Asia.

3. There is archaeological evidence of human habitation in

the territory as long as 3,000 to 6,000 years ago. This is

limited to village sites both at the coast at Prince Rupert

harbour and at a few locations alongside the Skeena and Bulkley

Rivers. The evidence does not establish who those early

inhabitants (or visitors) were.

4. The plaintiffs are 35 Gitksan and 13 Wet'suwet'en

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hereditary chiefs who have brought this action alleging that

from time immemorial they and their ancestors have occupied and

possessed approximately 22,000 square miles in north-west

British Columbia ("the territory"), and that they or the Indian

people they represent are entitled, as against the province of

British Columbia, to a legal judgment declaring:

(a) that they own the territory;

(b) that they are entitled to govern the territory by

aboriginal laws which are paramount to the laws of

British Columbia;

(c) alternatively, that they have unspecified

aboriginal rights to use the territory;

(d) damages for the loss of all lands and resources

transferred to third parties or for resources removed

from the territory since the establishment of the

colony; and

(e) costs.

5. No relief is claimed by the plaintiffs in this action

against Canada which was joined as a defendant for procedural

reasons. The action against Canada is dismissed. In this

Summary, "Crown" refers to the Crown in right of the Colony or

Province of British Columbia except where the context indicates

otherwise.

6. The plaintiffs allege the territory is divided into 133

separate territories (98 Gitksan, and 35 Wet'suwet'en), and each

of these separate territories is claimed by an hereditary chief

for his House or its members. Some chiefs claim several

territories, and some chiefs claim territories for other chiefs

who are not plaintiffs.

7. Map 1 on p.9 of the judgment is a generalized map of

the province showing the general location of the territory. Map

2 at p.10 is a reduction of a detailed map of the territory. It

shows the approximate external boundary of the territory. The

individual territories claimed by the Gitksan and Wet'suwet'en

chiefs are shown on maps 3 and 4, at pp.11 and 12.

8. Aboriginal interests arise (a) by occupation and use of

specific lands for aboriginal purposes by a communal people in

an organized society for an indefinite, long period prior to

sovereignty; or (b) under the Royal Proclamation, 1763.

9. Aboriginal rights under (a) above arise by operation of

law and do not depend upon statue, proclamation or sovereign

recognition. Such rights existing at the date of sovereignty

exist and continue at the Crown's "pleasure." Unless

surrendered or extinguished, aboriginal rights constitute a

burden upon the Crown's title to the soil.

10. The Royal Proclamation, 1763 has never applied to or

had any force in the Colony or Province of British Columbia or

to the Indians living here.

11. Linguistics, genealogy, history, and other evidence

establish that some of the ancestors of some of the plaintiffs

or the peoples they represent have been present in the territory

for an indefinite, long time before British sovereignty.

12. These early ancestors lived mainly in or near several

villages such as Gitanka'at, Gitwangak, Kitsegucla, Kispiox,

Ksun, Old Kuldo, New Kuldo, Gitangasx and possibly at Gitenmaax

(Hazelton) which are all on the Skeena River; at Kisgegas on the

Babine River; and at Hagwilget and Moricetown on the Bulkley

River. Each of these villages, six of which are now abandoned,

were strategically located at canyons or river junctions where

salmon, the mainstay of their diet, could most easily be taken.

Further, these early ancestors also used some other parts of the

territory surrounding and between their villages and rivers, and

further away as circumstances required, for hunting and

gathering the products of the lands and waters of the territory

for subsistence and ceremonial purposes.

14. Prior to the commencement of the fur trade these early

aboriginals took some animals by snares, dead falls and other

means, but there was no reason for them to travel far from their

villages or rivers for this purpose, or to take more animals

than were needed for their aboriginal subsistence.

15. There may have been sparse incursions of European

trade goods into the territory overland from the east or south,

or from unknown seaborne sources (perhaps from Asia) before the

arrival of Capt. Cook at Nootka on Vancouver Island in 1778.

That date, however, or more particularly the start of the sea

otter hunt on the north Pacific coast which started within the

following 5 years, was the likely start of European influences

in north-west North America.

16. The fur trade in the territory began not earlier than

the establishment of the first Hudson's Bay posts west of the

Rockies (but east of the territory), by Simon Fraser in 1805 -

06, and more probably a few years after that.

17. Trapping for the commercial fur trade was not an

aboriginal practice. Apart from commercial trapping, there were

no significant changes in aboriginal practices between first

contact with European influences within a few years on either

side of 1800 and the assertion of British sovereignty. The use

of modern implements such as mechanical traps and guns since the

time of contact does not change the nature of an aboriginal

right.

18. The law of nations and the common law recognize the

sovereignty of European nations which established settlements in

North America.

19. Great Britain asserted sovereignty in the territory not

earlier than 1803, and not later than either the Oregon Boundary

Treaty, 1846, or the actual establishment of the Crown Colony of

British Columbia in 1858. For the purposes of this case it does

not matter precisely when sovereignty was first asserted.

20. The title to the soil of the province became vested in

the Imperial Crown (Great Britain) by operation of law at the

time of sovereignty. The plaintiffs recognize this title, but

argue that their claims constitute an interest which is a burden

upon the title of the Crown.

21. The purpose of sovereignty and of creating the Colony

of British Columbia in 1858 was to settle the colony with

British settlers and to develop it for the benefit of the Crown

and its subjects.

22. The aboriginal interests of the post-contact ancestors

of the plaintiffs at the date of sovereignty were those

exercised by their own more remote ancestors for an uncertain

long time. Basically these were rights to live in their

villages and to occupy adjacent lands for the purpose of

gathering the products of the lands and waters for subsistence

and ceremonial purposes.

23. These aboriginal interests did not include ownership

of or jurisdiction over the territory. Those claims of the

plaintiffs in this action are dismissed.

24. But for the question of extinguishment, the

plaintiff's aboriginal sustenance rights would have constituted

a legally enforceable, continuing burden upon the title of the

Crown.

25. Upon the establishment of the colony, the Crown, both

locally and in London, enacted a number of laws providing: (a)

that all the lands of the colony belonged to the Crown (which

would be the Imperial Crown at that time); (b) that the laws of

England applied in the Colony,; (c) giving the Governor and

later a Legislative Council authority to grant the lands of the

colony to settlers; and (d) authorizing the Crown through the

Governor to make laws and exercise legal jurisdiction over the

colony including the territory.

26. The policy of the Colony of British Columbia was (a)

to allot lands to the Indians for their exclusive use, called

reserves, comprising their village sites, cultivated fields and

immediately adjacent hunting grounds; (b) to encourage

settlement by making land available for agriculture and other

purposes; and (c) to permit Indians, along with all other

citizens, to use the vacant Crown lands of the colony.

27. Part (a) of this policy did not usually work as well as

intended. Reserves were mainly allotted in the territory in the

1890's and they were "adjusted" by a Royal Commission in 1912-

14. Although reserves in the territory included most occupied

villages, they were very small because it was thought secure

access to strategic fishing sites was more important than

acreage. The evidence does not fully explain why the Indians of

the territory did not receive strategic sites and acreage except

that the Indians often failed or declined to participate in the

allotment process.

28. It is the law that aboriginal rights exist at the

"pleasure of the Crown," and they may be extinguished whenever

the intention of the Crown to do so is clear and plain.

29. The pre-Confederation colonial enactments construed in

their historic setting exhibit a clear and plain intention to

extinguish aboriginal interests in order to give an unburdened

title to settlers, and the Crown did extinguish such rights to

all the lands of the colony. The plaintiffs' claims for

aboriginal rights are accordingly dismissed.

30. At the same time, the Crown promised the Indians of

the colony, which applies also to the territory, that they

(along with all other residents), but subject to the general

law, could continue to use the unoccupied or vacant Crown land

of the colony for purposes equivalent to aboriginal rights until

such lands were required for an adverse purpose. Further, this

promise extends to any alienated lands which are returned to the

status of vacant Crown lands. Thus, lands leased or licensed

for logging, for example, become usable again by Indians and

others when such operations are completed.

31. The unilateral extinguishment of aboriginal interests

accompanied by the Crown's promise and the general obligation of

the Crown to care for its aboriginal peoples created a legally

enforceable fiduciary, or trust-like duty or obligation upon the

Crown to ensure there will be no arbitrary interference with

aboriginal sustenance practices in the territory.

32. When the colony joined the Canadian Confederation in

1871 the charge of Indians and Indian lands was assumed by

the Dominion (Canada); all colonial lands, subject to existing

"interests," accrued to the province; and the province agreed to

furnish whatever land was required for reserves. In 1924 Canada

acknowledged that British Columbia had satisfied its obligations

with respect to furnishing lands for Indian reserves.

33. The promise made and obligation assumed by the Crown

in colonial times, while not an "Interest" to which Crown lands

are subject, can only be discharged by the province and

continues to the present time as a duty owed by the Crown

subject to the terms mentioned above.

34. Since Confederation the province has had: (a) title to

the soil of the province; (b) the right to dispose of Crown

lands unburdened by aboriginal title; and (c) the right, within

its jurisdiction under s. 92 of the Constitution, to govern the

province. All titles, leases, licenses, permits and other

dispositions emanating from the Imperial Crown during the

colonial period or from the Crown in right of the province since

Confederation are valid in so far as aboriginal interests are

concerned. The province has a continuing fiduciary duty to

permit Indians to use vacant Crown land for aboriginal purposes.

The honour of the Crown imposes an obligation of fair dealing in

this respect upon the province which is enforceable by law.

35. The plaintiffs, on behalf of the Gitksan and

Wet'suwet'en people are accordingly entitled to a Declaration

confirming their legal right to use vacant Crown land for

aboriginal purposes subject to the general law of the province.

36. The orderly development of the territory including the

settlement and development of non-reserve lands and the

harvesting of resources does not ordinarily offend against the

honour of the Crown.

This is because the province has many

other duties and obligations additional to those owed to Indians

and because (a) the territory is so vast; (b) game and other

resources are reasonably plentiful: and (c) most Indians in the

territory are only marginally dependent upon sustenance

activities.

37. The right of Indians to use unoccupied, vacant Crown

land is an not an exclusive right and it is subject to the

general law of the province. The Crown has always allowed non-

Indians also to use vacant Crown lands.

38. For the reasons stated in the Reasons for Judgement,

it is not advisable to specify the precise rules that would

govern the relationship between the Indians and the Crown.

Instead, that question should be left to the law relating to

fiduciary duties which provides ample legal remedies.

39.

Part 15 of this judgment describes the circumstances

which the province and the Indians should take into

consideration in deciding whether any proposed Crown action may

constitute a breach of its fiduciary duty to Indians. Generally

speaking, the operative word is "reconciliation" rather than

"rights" or "justification."

40. As the Crown has all along had the right to settle and

develop the territory and to grant titles and tenures in the

territory unburdened by aboriginal interests, the plaintiffs'

claim for damages is dismissed.

41. If I have erred on the question of extinguishment, and

the plaintiffs aboriginal interests or any of them are not

extinguished, the evidence does not establish the validity of

individual territories claimed by Gitksan and Wet'suwet'en

Chiefs. Instead, therefore, the claim for aboriginal rights in

such circumstances would be allowed not for chiefs or Houses or

members of Houses, but rather for the communal benefit of all

the Gitksan and Wet'suwet'en peoples except the Gitksan peoples

of the Kitwankool Chiefs who did not join in this action.

42. These aboriginal interests, if any, would attach not

to the whole territory but only to the parts that were used by

the plaintiffs' ancestors at the time of sovereignty. The parts

so used by each of the plaintiff peoples are defined in Part 16,

and they are shown on Map 5 at p.643.

43. The Counter Claim of the province, which was

brought for procedural reasons, is dismissed.

44. Because of the importance of the matter, the divided

success the parties have achieved, and other reasons mentioned

in the judgment, no order is made for costs.

45. The specific judgment of the Court is detailed in Part

21.

46. In Part 22 I have made some comments about Indian

matters.

Part 1. Introduction

1

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PART 1. INTRODUCTION

This has been a long trial.

After numerous pre-trial proceedings, including taking the

commission evidence of many elderly plaintiffs, interlocutory

applications and appeals, the trial began in Smithers on May 11,

1987.

After 318 days of evidence, mainly at Vancouver but partly

at Smithers, the evidence was substantially completed on

February 7, 1990.

Legal argument began in Smithers on April 2, 1990 and

continued there for 18 days. Argument continued in Vancouver

for a further 38 days, and the trial ended there on June 30,

1990.

A total of 61 witnesses gave evidence at trial, many using

Part 1. Introduction

2

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translators from their native Gitksan or Wet'suwet'en language;

"Word Spellers" to assist the Official Reporters were required

for many witnesses; a further 15 witnesses gave their evidence

on Commission; 53 Territorial Affidavits were filed; 30

deponents were cross-examined out of Court; there are 23,503

pages of transcript evidence at trial; 5898 pages of transcript

of argument; 3,039 pages of commission evidence and 2,553 pages

of cross examination on affidavits (all evidence and oral

arguments are conveniently preserved in hard copy and on

diskettes); about 9,200 exhibits were filed at trial comprising,

I estimate, well over 50,000 pages; the plaintiffs' draft

outline of argument comprises 3,250 pages, the provinces' 1,975

pages, and Canada's over 1,000 pages; there are 5,977 pages of

transcript of argument in hard copy and on diskettes. All

parties filed some excerpts from the exhibits they referred to

in argument. The province alone submitted 28 huge binders of

such documents. At least 15 binders of Reply Argument were left

with me during that stage of the trial.

The Plaintiffs filed 23 large binders of authorities. The

province supplemented this with 8 additional volumes, and Canada

added 1 volume along with several other recent authorities which

Part 1. Introduction

3

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had not then been reported.

The evidence is intensely detailed which is why, in part,

this judgment is so inordinately long. I have had some

difficulty with the spelling of some unusual words for which the

material suggests there may be more than one correct version.

For example some writers such as Dr. Kari spell "Athabaskan"

thusly, while others spell it with a "p". I have adopted the

Dr. Kari's spelling. With most difficult words I have attempted

uniformity but I doubt if I have been completely successful.

I visited many parts of the territory which is the

principal subject of this case during a 3-day helicopter and

highway "view" in June 1988 which is described in Schedule 1 to

this judgment. I also took many automobile trips into the

territory during many of the evenings of the nearly 50 days I

sat in Smithers. These explorations were for the purpose of

familiarizing myself, as best I could, with this beautiful, vast

and almost empty part of the province.

Needless to say, this judgment has been a difficult one to

prepare. I hope the Summary is useful, but if there is any

Part 1. Introduction

4

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conflict between these Reasons for Judgment and the Summary then

the former must prevail.

I wish to record my sincere appreciation to all counsel and

their staffs who have laboured mightily to assist me to

receive, preserve, retrieve and understand such a huge quantity

of information. I greatly appreciate and admire their industry,

ingenuity and legal skill. I owe a great debt of gratitude to

the Official Reporters who laboured under numerous difficulties

but still prepared excellent transcripts. In this case, more

than with many others, the Official Reporters had the most

difficult job in the Courtroom.

This case is mainly about land. But there are also claims

for jurisdiction and damages. In a moment I shall endeavour to

describe the parties and the nature of the case. Before doing

so I wish to mention that this has also been a political trial.

The plaintiffs, the aboriginal people who now live in parts

of the territory I shall describe, sincerely believe that they

own and have a legal right to govern this vast territory by

reason of long use and possession. They harbour a great sense

Part 1. Introduction

5

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of injustice and resentment that they have waited so long for

their aboriginal interests in the territory to be decided while

non-natives have acquired title to much of this land, and while

its resources have been exploited by others. The plaintiffs

believe, passionately, that their claims are just.

I have heard much at this trial about beliefs, feelings,

and justice. I must again say, as I endeavoured to say during

the trial, that Courts of law are frequently unable to respond

to these subjective considerations. When plaintiffs bring legal

proceedings, as these plaintiffs have, they must understand (as

I believe they do), that our Courts are Courts of law which

labour under disciplines which do not always permit judges to do

what they might subjectively think (or feel) might be the right

or just thing to do in a particular case. Nor can judges impose

politically sensitive non-legal solutions on the parties. That

is what Legislatures do, and judges should leave such matters to

them.

Instead, cases must be decided on admissible evidence,

according to law. The plaintiffs carry the burden of proving by

a balance of probabilities not what they believe, although that

Part 1. Introduction

6

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is sometimes a relevant consideration, but rather facts which

permit the application of the legal principles which they

assert. The Court is not free to do whatever it wishes.

Judges, like everyone else, must follow the law as they

understand it.

What follows, therefore, is my best effort to determine

whether the plaintiffs have proven, by a preponderance of

admissible evidence, the facts which they have alleged in their

pleadings, and whether such facts establish legal rights which

are recognized by the law of this province.

I am sure that the plaintiffs understand that although the

aboriginal laws which they recognize could be relevant on some

issues, I must decide this case only according to what they

call "the white man's law," which has been changed considerably

by a number of judgments delivered by the Supreme Court of

Canada during the course of this trial. I am obliged to follow

those judgements to the extent they apply to this case, and I

must also accept the guidance and instruction they furnish.

I have no doubt that anything less than an award of

Part 1. Introduction

7

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complete ownership of and jurisdiction over the territory, along

with substantial damages, will be a great disappointment to the

plaintiffs. In my judgment the law does not permit such a

decision in their favour although I have reached the conclusion

they are entitled to succeed to a much lesser extent.

As will become apparent, the case is framed, as it had to

be, for strict legal remedies. This makes it impossible finally

to solve the real issues which exist between the plaintiffs and

the governments. But this case is at least an important step in

that direction.

The judgment which I must pronounce on legal issues does

not preclude an important political and social responsibility

that may only be discharged by the governments. I shall presume

to mention this from time to time in these Reasons for Judgment.

I have no doubt that what I am about to say will not be the

last word on this case and that this judgment will be appealed

to the Court of Appeal and perhaps to the Supreme Court of

Canada. With this in mind I shall endeavour, for the assistance

of the parties and the appeal process, to describe as best I can

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the facts and reasons upon which I have reached the conclusions

I am about to state.

The parties adduced such enormous quantities of evidence,

introduced such a huge number of documents, and made so many

complex arguments that I have sufficient information to fuel a

Royal Commission. Although I assured counsel that was not my

function, they apparently did not believe me.

As I am not a Royal Commission, and as I have no staff to

assist me, it will not be possible to mention all of the

evidence which took so long to adduce, or to analyze all of the

exhibits and experts' reports which were admitted into evidence,

or to describe and respond to all the arguments of counsel. In

these circumstances I must do what a computer cannot do, and

that is to summarize. In this respect I have been brutal. I am

deeply conscious that the process of summarizing such a vast

body of material requires me to omit much of what counsel and

the parties may think is important.

With the assistance of counsel I have tried my very best to

consider everything that is relevant, even if it is not

Part 1. Introduction

9

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mentioned in these Reasons for Judgment. As Counsel will be

quick to notice, I have left out a great deal of the information

which they went to such trouble to have admitted into evidence.

As it turns out, I find it unnecessary to include a great deal

of it in these Reasons for Judgment.

Part 1. Introduction

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PART 2. THE CLAIM AND THE TERRITORY: AN OUTLINE

In due course I shall endeavour to describe the precise

nature of this action and the parties. In this section I shall

outline what the case is about.

This action is mainly about land, 22,000 square miles of it

(58,000 square kilometres), which I shall call "the territory."

"Territory" in this judgment has at least 2 meanings. In its

usual sense, it means the geographic area lying within what is

called the "external boundary." This is a vast area almost the

size of New Brunswick.

On the next page is Map 1, which is a generalized map of

the province showing the territory claimed in this action. On

the following page is Map 2 showing an early version of the

external boundary. This boundary has since been amended

slightly as will later be explained. I have used this

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particular map because it best shows the important geographic

features of the Territory. Map 2 is Ex. 1243 (Mr. Macaulay's

Map), without any of its overlays except Ex. 1243D (Indian

reserves) and I have added larger labelling of some prominent

features.

MAP1

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MAP2

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MAP3

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MAP4

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The action is not brought as a typical collective or

communal claim. Instead, the 51 plaintiffs, as described in

Schedule 2, are all Gitksan or Wet'suwet'en "Hereditary Chiefs,"

who, individually or on behalf of their "Houses" or its members,

claim one or more separate specific portions of the territory.

Some of these specific areas are as large as a thousand square

miles or more and some are as small as a mountain top. Each

separate territory lies within what are called "internal

boundaries." There are 133 of these individual territories.

The sum of the areas within the internal boundaries equals

exactly the total area within the external boundary.

All the Gitksan Houses are divided into 4 clans which seem

to originate, or at least congregate, in different villages in

the territory. The Wet'suwet'en Houses are also divided into 4

clans. There is no Head Chief of a clan but there is an order

of precedence or seniority amongst the Hereditary Chiefs of the

Houses of each clan in each village.

No claim is advanced in this action on behalf of the clans.

The plaintiffs' position is that the Chiefs, Houses, or members

of Houses own the individual territories.

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Following Maps 1 and 2 are separate maps (Maps 3 and 4)

showing the final individual Gitksan and Wet'suwet'en

territories. These are down-sized reproductions of Exs. 646-9A

and 9B.

I shall be referring throughout this judgment to both the

territory within the external boundary, and to individual

territories within the internal boundaries.

The Gitksan are a Tshimshanic-speaking aboriginal people

who claim generally the watersheds of the north and central

Skeena, Nass and Babine Rivers and their tributaries within the

territory. They number 4,000 to 5,000 persons, most of whom now

live in the territory, mainly in villages alongside the Skeena

River.

The plaintiffs in this action do not represent all of the

Gitksan people because the l2 chiefs of the Kitwancool Houses of

the Gitksan people have expressly declined to join in this

action. I understand that these chiefs, described in the

Statement of Claim as the "Kitwancool Chiefs," have advanced

their own claim for areas allegedly owned by them or their

Houses in the drainage areas of the Cranberry and Nass Rivers

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between areas claimed by the Nishga and those claimed by the

plaintiffs.

The Wet'suwet'en are an Athabaskan-speaking aboriginal

people who claim areas mainly in the watersheds of the Bulkley

and parts of the Fraser - Nechako River systems and their

tributaries immediately east and south of the Gitksan. They

number about 1,500 to 2,000 persons. Most of the Wet'suwet'en

live in the territory, mainly in two villages alongside the

Bulkley River.

There are some areas of dispute between the plaintiffs and

other aboriginal peoples and although overlaps will later be

discussed, it is not necessary in this case to pronounce upon

the disputes between the plaintiffs and these other peoples.

The Gitksan and Wet'suwet'en peoples allege that they and

their ancestors or predecessors have, from time immemorial, and

well before the arrival of European influences or settlement,

(sometimes called "contact") lived in, owned, controlled,

possessed, and exercised jurisdiction over the territory. They

further allege that they and their ancestors or predecessors,

never having surrendered the territory by conquest or treaty,

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still enjoy aboriginal ownership of and the legal right to

govern the territory according to their aboriginal laws which

they claim are "paramount" to the law of British Columbia.

The plaintiffs, in what I understand they regard as a

matter of grace on their part, do not seek to recover pre-Writ

(1984) privately owned (fee simple) lands within the territory.

Instead, they claim compensation from the province for the value

of whatever territorial interests have been transferred to other

ownership. They claim the right to terminate all less than fee

simple legal interests in the territory, such as logging, mining

and other leases or licenses.

The plaintiffs also claim damages from the province for the

value of all resources removed from the territory since l858

(when the colony of British Columbia was established), as well

as damages for any harm to, or resources removed from, the

territory by or under the authority of the Crown since that

date. By agreement between counsel, the amount of damages to

which the plaintiffs are entitled, if any, has been severed from

the rest of the case, and was not dealt with at trial.

Many chiefs claim more than one territory and in some cases

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they also advance claims to specific territories for other

Houses. For example, Earl Muldoe, the first named plaintiff,

Delgamuukw, claims 2 territories for himself or for his House or

members of his House of Delgamuukw, and he also claims other

specific territories for the chiefs, Houses or members of the 2

Houses of Haaxw and Hage. This situation is common with many

chiefs. As I have mentioned, 51 plaintiff chiefs are claiming

133 separate territories.

There are a small number of Houses which do not claim any

territory, although those Houses, along with many others, claim

fishing sites along one or more of the major rivers within a

territory claimed by another chief. There seems to be no

conflict between the plaintiffs on this issue. Actually, most

fishing sites, though not all of them, are within Indian

Reserves, and are not in dispute.

Except for a declaration that fishing in their territories

or at their fishing sites is an aboriginal right, the plaintiffs

advance no discrete land claim to fishing sites in this case.

Instead, the plaintiffs claim ownership of the beds and banks of

the rivers and lakes within their territories which is said to

also carry the ownership of the fishery. In Sparrow v. the

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Queen, [1990] 46 B.C.L.R. (2nd) 1. (S.C.C.), which will be

discussed later, the Supreme Court of Canada deals extensively

with aboriginal fishing rights.

The total territory is a vast, almost empty area except in

the Highway 16 - C.N.R. corridor where most of the plaintiffs'

villages are located. This corridor follows the course of much

of the Bulkley and part of the Skeena Rivers from south-east to

north-west diagonally through the south half of the territory.

The territory measures about 275 miles in a north - south

direction, centred more or less upon the Hazelton-Smithers area,

and it is hour-glass shaped with a "Skeena bulge" in its west-

central area. The territory probably averages 100 miles in

width (east - west), although it is much wider in the extreme

north and south than in the centre.

The most westerly edge of the territory is about 15 miles

east of Terrace. It extends north almost to the northern

headwaters of the Skeena, south of Ootsa Lake, and east almost

to Babine Lake. The territory includes all of the present

Gitksan villages of Kitwangak, Kitseguecla, Gitenmaax

(Hazelton), Glen Vowell, and Kispiox, as well as the

Wet'suwet'en villages of Hagwilget and Moricetown.

It also

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includes the non-Indian locations of New Hazelton, Smithers,

Houston and Burns Lake which are populated mainly by "Euro-

Canadians" or other non-aboriginal persons.

To the north of the Bulkley-Skeena corridor the territory

includes much of the watersheds of the Upper Nass, Middle and

Upper Skeena and Babine Rivers, and Bear Lake, but not Babine

Lake. Generally speaking, the plaintiffs say this is Gitksan

country.

To the south of the corridor the territory includes all of

the lands to the height of land south of Ootsa lake, including

Morice Lake and most of Francois Lake. Generally speaking the

plaintiffs say this is Wet'suwet'en country.

In addition to about 5,000 to 7,000 Gitksan and

Wet'suwet'en persons, there are upwards of 30,000 others (mostly

of European extraction), who are living within the territory.

The territory is a rich agricultural area, (particularly

the Bulkley and lower Kispiox River valleys), and there are vast

forestry resources throughout much of the territory. Equally

important are the salmon and other fisheries of the Bulkley,

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Nass, Skeena and Babine Rivers. Most of the invaluable and

irreplaceable Skeena salmon stock pass through the territory by

way of the Skeena and Babine Rivers to their destiny in the

spawning grounds of Babine Lake.

One of the most encouraging things I heard at this trial,

of which there were very few, is that salmon stocks are at or

approaching historic high levels, presumably because of the

enhancement efforts undertaken at the Babine Lake salmon

spawning grounds such as the Fulton River and Pinkut Creek

hatcheries. On the other hand, the Wet'suwet'en allege that

their natural fishing advantages at Hagwilget and Moricetown

Canyons have been ruined or reduced by Federal Government

endeavours (rock removal and fish ladders respectively), which

they have much complained about. These issues are not raised by

the pleadings and as I have not heard the other side, I shall

not express any opinion on them.

While none of the wildlife evidence is unequivocal, I

understood Dr. Ray to say the early historic records indicate

that "game was never really plentiful" in the territory and that

fishing was the mainstay of the economy. He also said that the

exploitation of animals was pretty minimal "in terms of food,"

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and that trader Brown (of the Hudson's Bay Company), reported in

the 1820's that the Atnah's (any non-Carrier) regarded beaver as

unclean. Also, according to Dr. Hatler, moose and deer came

into the territory relatively recently, replacing caribou which,

in response to a warming trend which commenced about 1850, moved

away from the territory into other areas which they found more

hospitable.

I understand that wildlife generally prefer open skies to

forest canopies. Dr. Hatler said:

"Fires and clearing associated with early European

settlement almost certainly enhanced habitats for

the forest species, particularly moose, beaver and

black bear."

He also said that, of the nine species mapped, six have

maintained their general abundance and range since 1860.

I do not suggest that clear cut logging has been an

ecological advantage to the territory. That is for other

disciplines to ponder and to weigh against economics.

Aesthetically, Dr. Hatler's description of "moonscape" is

appropriate. I was encouraged to notice on my travels through

the territory that areas logged as recently as 3 to 6 years ago

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are starting to show signs of regeneration.

Although game animals may not be as plentiful in the

transportation corridor as they were at the time of European

contact, or before the railway was built, I am not persuaded

there is either a shortage or an excessive abundance of wildlife

in the territory.

There are some mining resources in the territory, including

the Equity Silver Mine which is reported to have limited

remaining ore reserves, but mining is not currently significant

when compared with agriculture and forestry which are the

economic mainstays of the region. There are, unquestionably,

immense forestry reserves throughout the territory which are of

great economic value.

The most striking thing that one notices in the territory

away from the Skeena-Bulkley corridor is its emptiness. I

generally accept the evidence of witnesses such as Dr. Steciw,

Mrs. Peden and others that very few Indians are to be seen

anywhere except in the large river corridors. As I have

mentioned, the territory is, indeed, a vast emptiness.

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This is largely because, over the last several decades, the

Indians of the region have gradually migrated into the villages

of the transportation corridor. This has been driven by

economics and an understandable wish on the part of the Indians

for a better standard of living. The plaintiffs' first witness,

Mrs. MacKenzie, said her people originally lived in the far

northern village of Gitangasx but moved first to Kuldo and

finally to Kispiox. She does not know when these migrations

occurred and suggested they may have been hundreds or thousands

of years ago. I believe they occurred much more recently.

No one lives today at the site of the former important

village of Kisgegas (near the confluence of the Babine and

Skeena Rivers), except for the two McLean brothers who are said

to live part-time in a dwelling which I saw on the south side of

the Babine River across from the old village. At the present

time at Kisgegas there are only deserted and crumbling dwellings

and an interesting, abandoned church. I understand there have

been few residents there since the 1930's or 1940's. Mr. Brodie

reported 300 residents in 1891, but only 65 in 1929 and 2

(possibly the McLeans), in the spring of 1985. The evidence

suggests that there are temporary residents there during the

annual summer salmon run.

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Similarly, no one lives at the former Gitksan village sites

of Gitanka'at, Ksun, Kuldoe, Old Kuldoe, and Gitangasx. Many

Wet'suwet'en locations such as Pack Lake and Sam Gosley Lake are

now deserted. Without question, the Indians have largely moved

out of the isolated locations and into the villages in the

transportation corridor.

This is not to say that some Indians do not return to these

areas for hunting and trapping about which I shall have more to

say later. The trapping industry fell into serious decline in

the early 1950's but although prices have improved there seems

to be little interest in pursuing that vocation on the part of

most Indians, particularly the young ones.

It is common, when one thinks of Indian land claims, to

think of Indians living off the land in pristine wilderness.

Such would not be an accurate representation of the present

life-style of the great majority of the Gitksan and Wet'suwet'en

people who, while possibly maintaining minimal contact with

individual territories, have largely moved into the villages.

Many of the few who still trap are usually able to drive to

their traplines, and return home each night.

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Similarly, it would not be accurate to assume that even

pre-contact existence in the territory was in the least bit

idyllic. The plaintiffs' ancestors had no written language, no

horses or wheeled vehicles, slavery and starvation was not

uncommon, wars with neighbouring peoples were common, and there

is no doubt, to quote Hobbs, that aboriginal life in the

territory was, at best, "nasty, brutish and short."

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PART 3. DEFINITIONS

In order to describe the claims which the plaintiffs are

advancing in this action it will be convenient to define some of

the legal terms which will be used in this judgment. I shall

not attempt in this part of my judgment to furnish exhaustive

definitions. I wish to emphasize that there are important

distinctions which must be kept in mind.

l. Ownership

In their pleadings and submissions the plaintiffs admit

that the underlying title to the soil of the territory is in the

Crown in right of the province of British Columbia. This is

sometimes called the allodial, underlying or radical title of

the Crown. Subject only to this underlying title, the plaintiff

chiefs say that by aboriginal right they or their Houses or

members own and are absolutely entitled to occupy and possess

the individual territories they claim. They say that their

aboriginal right is for all purposes equivalent to ownership in

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fee simple. However, they admit that they cannot alienate their

lands by sale, transfer, mortgage or other disposition except to

Canada by treaty concluded at a public assembly in accordance

with the requirements of the Royal Proclamation, 1763, which

they say applies to British Columbia, or at least re-states the

law.

I do not understand the plaintiffs to allege or claim any

"people-wide" collective or communal ownership interest in any

of the Gitksan or Wet'suwet'en territories, that is to say each

chief claims ownership of specific territory or territories, and

none of them claim any interest in any other territory.

2. Aboriginal Rights

In this judgment I propose to use the term "aboriginal

rights" to describe rights arising from ancient occupation or

use of land, to hunt, fish, take game animals, wood, berries and

other foods and materials for sustenance and generally to use

the lands in the manner they say their ancestors used them.

These are the kinds of "usufructuary rights" mentioned in St.

Catherines Milling and Lumber Co. Ltd v. Attorney General of

Ontario (1886) 13 S.C.R. 577 and which the plaintiffs claimed in

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Calder v. Attorney General of British Columbia, [1973] S.C.R.

313. These kinds of rights were awarded, in part, in Hamlet of

Baker Lake v. Minister of Indian Affairs, [1980] l F.C. 518

(F.C.C.).

There is no specific claim in the Statement of Claim in

this action for a declaration respecting such rights although

"aboriginal rights" are mentioned. Early in the trial,

plaintiffs' counsel said that the plaintiffs' claim was for

ownership and jurisdiction -- "all or nothing" as I believe it

was then described but that position was later modified. This

question of pleadings will be more fully discussed later in

these Reasons for Judgment.

3. Indian Title

Many authorities refer to "Indian title," which appears

frequently, for example, in the judgment of Hall J. in Calder.

In that case the claim was only for a declaration that

"aboriginal title, otherwise known as the Indian title of the

plaintiffs...has never been extinguished." There was in that

case no claim for ownership, jurisdiction or damages so there

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was no need in that case to use these terms precisely. Indian

title is commonly used interchangeably with aboriginal rights as

I have attempted to define them.

4. Jurisdiction

Jurisdiction has two important dimensions in the

plaintiffs' claim.

(a) Jurisdiction over land

The plaintiffs say that their ownership interest in the

territory entitles them, or their Houses or members, at their

option, to govern the territory free of provincial control in

all matters where their aboriginal laws conflict with the

general law. I understand the position taken by their counsel

to be that, upon a judgment granting them ownership and

jurisdiction over these lands, they, and not the government of

British Columbia, may control all land-related activities in the

territory.

(b) Jurisdiction over people

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As an examination of the transcript of my various exchanges

with counsel during argument will disclose, I have encountered

some difficulty understanding this claim. I shall discuss it in

greater detail later but I now understand this claim relates not

just to land but rather to partial self-government limited to

those areas where traditional Gitksan or Wet'suwet'en "laws"

conflict with laws enacted by British Columbia pursuant to s. 92

of the Constitution of Canada.

I do not understand the plaintiffs are seeking a judgment

striking down or declaring inoperative against them any present

British Columbia enactment or regulation. Instead, they wish

the court to make a declaration that some agency of the Gitksan

and Wet'suwet'en people, presumably their chiefs or some other

aboriginal body (although its identity was not made clear), are

entitled to govern Gitksan and Wet'suwet'en people in the

territory.

Then, their argument goes, they may decide which of the

general laws of the province, such as laws relating to

education, health, family matters and land use etc., conflict

with their own laws.

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They wish such a declaration so that, if they decide not to

obey any general laws of the province and proceedings are

brought to force compliance, they may plead their own laws and

the declaration of this court in their defence.

The plaintiffs argue that this right to jurisdiction over

people is confined to Gitksan and Wet'suwet'en persons within

the territory, and they say this is a right conferred upon them

by law. It appears, however, that the plaintiffs intend to

require non-Gitksan or Wet'suwet'en persons within the territory

to comply with aboriginal law relating to land.

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5. Aboriginal Interest

This is a term I shall use in a neutral, descriptive sense

to describe any unspecified aboriginal right. I do not believe

there is any aboriginal interest additional or different from

the other "interests" I have defined. It is merely a shorthand

term of convenience which I shall use when precision is not

required.

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PART 4. AN HISTORICAL OVERVIEW

It is not possible to discuss this case except in an

historical context. What follows, therefore, is a brief summary

of some of the history which emerges from the evidence. In

later parts of this judgment I have included greater detail

about some of these matters. The following is intended only as

I have described it--an overview.

There are many relevant, interfluent histories. They

include the origins of our native peoples, early European

discovery, exploration, settlement and development on the east

and west coasts of this continent; inland explorations,

particularly the western spread of the Hudson's Bay and North-

West Companies' activities originating from Hudson's Bay and

Montreal respectively; and the early political history of the

British and American colonies, Canada, and this province before

and within the Canadian Confederation, as well as settlement

within the territory.

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I cannot hope to do justice to these rich and fascinating

histories. Some of them are remarkably well documented.

Others, unfortunately, exist only in the memory of plaintiffs,

and some of them have received some scholarly attention. I

intend no disrespect to the fascinating work of Morice, Barbeau,

Beynon, Duff and others, but much remains to be done in order to

prove or disprove the authenticity of their conclusions. In

addition, the territory has only been scratched

archaeologically, and I suspect much remains to be found.

I can only mention the high points of all these less

precise classes of history and I must leave it to the social

scientists who are just beginning their journeys of discovery

into the vast and largely uncharted terra incognita of the

unwritten histories. I wish I could know what they will

discover.

In this overview I must paint with the broadest possible

brush, particularly in the early parts of these marvellous

histories and I shall attempt to treat them as just one

interrelated story. After this overview I shall return to deal

with the separate legal issues as lawyers and judges must, that

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is to examine the details.

I shall attempt to follow a general chronological format

although there will undoubtedly be huge gaps and omissions. It

will be convenient to insert a few headings into the text so as

to introduce a modicum of order which is so much to be desired.

1. The Pre-Historic Period

The evidence does not disclose the beginnings of the

Gitksan and Wet'suwet'en people. Many of them believe God gave

this land to them at the beginning of time. While I have every

respect for their beliefs, there is no evidence to support such

a theory and much good reason to doubt it.

It is known that the territory was largely if not entirely

covered by ice during the last great Ice Age which ended about

10,000 years ago. The ice extended southward into the state of

Washington. During that period there were, apparently, one or

more ice-free refugia in what is now part of the southern Yukon.

Most scientists believe the ancestors of our aboriginal

people migrated to this continent from Asia, probably after, but

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possibly before, the last great Ice Age. In the latter

alternative scientists believe that such people may have found

refuge in a northern refugia, or migrated south ahead of the

advancing ice and then returned to the north after the ice

retreated. Dr. Daly said the origin of these people was Asiatic

in "early pre-history." This suggests post-glacial migration,

but that is not a certainty.

The different languages of the Gitksan and Wet'suwet'en, as

well as their lingual affiliation with other speaker groups of

the same or similar languages, strongly suggest either a

different origin, or a very early separation.

The Gitksan speak a variation of the Tsimshian language

which is shared, with minor differences, with the coastal and

south Tsimshian and with the Nishga of the Nass River valley.

The Wet'suwet'en, on the other hand, speak an Athabaskan

language which they share, also with differences recognized by

specialists, with many Carrier people throughout North America.

These include the Beaver, Alchako-Chilkotin, and many more

distant Athabaskan-speaking groups who have spread southwards

into what is now the United States, such as the Hupa and Tolowa

of California and the Navaho of the American south-west. There

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is practically no difference between the language of the

Wet'suwet'en and that of their immediate neighbour, the Babine

people. The Babine dialect is itself distinct from some Carrier

languages.

Dr. Kari, who has studied these questions with distinction,

suggests a probable Wet'suwet'en separation from the source

Athabaskans about 2500 years ago but this is, admittedly, not a

precise opinion.

It is my conclusion, doing the best I can without the

assistance of very much evidence, that the plaintiffs'

ancestors, both Gitksan and Wet'suwet'en, migrated from Asia,

probably through Alaska, but not necessarily across the Bering

Straits, after the last Ice Age, and spread south and west into

the areas which they found liveable. As we shall see from the

evidence, however, there has been considerable mobility over the

centuries and it is unlikely, or at least not proven, that any

or all of the plaintiff groups have occupied the territory for

all of the time since these post-glacial migrations. There is

some reason to believe, for example, that the Wet'suwet'en, may

have migrated into the areas they claim from east of the Rocky

Mountains which could have occurred before or since the Ice Age.

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Another theory is that some of them sprung from the refugia

after the ice retreated, to follow the caribou until they

discovered salmon in the great rivers and adopted the culture of

other groups which preceded them from the refugia or otherwise.

Other possibilities are that they migrated to the territory

from the south, or that they came from the coast, or possibly a

combination of all the above. The categories of other

possibilities are not closed. For the purpose of this judgment

it really does not matter where the plaintiffs' earlier

ancestors came from.

The evidence of the archaeologist Sylvia Albright, and many

of the authors upon whom she relied or mentioned, such as K. M.

Ames and Dr. George MacDonald, establish that there was some

form of human habitation at some locations in the territory

particularly at Hagwilget and Moricetown and at surrounding

areas such as at Prince Rupert harbour and Kitsilas Canyon from

6,000 to 3,500 years ago. These studies confirm human presence

at these locations at various dates throughout the Pre-historic

Period, but there were probably discontinuances.

While I have considerable reservations about some of the

archaeological evidence, there is no reason not to accept the

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conclusions of Ames that there was intense occupation of the

Hagwilget Canyon site, near present day Hazelton, prior to about

4,000 to 3,500 B.P. ("Before Present;" "Present" in

archaeological terminology equals 1950 when carbon dating became

possible).

After that, Dr. MacDonald believes occupation was light and

sporadic, probably limited to fishing, which continued until

1820 when the locality was given by the Gitksan to the Carrier

(as the Wet'suwet'en were still called when Ames wrote in 1971),

because a rock slide blocked the Bulkley River and deprived the

natives at Moricetown of any source of salmon. This site has

remained ever since as a locality occupied by the "Hagwilget

Carrier," as Dr. Ames described them.

Ms. Albright has constructed a similar scenario for other

sites, inside and outside the claim area, which are found at

Ex.844, Table 5. There are some parts of Ms. Albright's

evidence in which I do not have confidence, as she seemed to

base some of her archaeological opinions on flimsy evidence.

There is, however, no reason to doubt that there was some human

habitation during some pre-historic periods at some of the sites

she described.

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According to Gitksan belief, based almost entirely upon

oral histories related to and collected by anthropologists such

as Barbeau, Beynon and Duff, the Gitksan people lived in some

form of social organization long before contact with European

influences. They believe there were always settlements at all

present village sites as well as at Gitangasx on the Upper

Skeena north and west of Bear Lake at Kisgegas on the Babine

River near its confluence with the Skeena, at Temlaxam (their

largest and most important ancestral village) on the north or

west side of the forks of the Skeena and Bulkley Rivers, and at

Gitanka'at downstream on the Skeena from Temlaxam, between Lorne

and Fidler Creeks, approximately opposite the fabulous Seven

Sisters Mountains.

Gitksan oral histories suggest that there were dispersals

to and from these ancestral villages to other locations within

the territory at some pre-historic time, possibly caused or

connected with some natural or supernatural phenomena. Their

belief is strong that their ancestors have always lived in the

territory.

There does not seem to be nearly as much oral history about

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the origins of the Wet'suwet'en people. I recall mention of

only one ancestral village, Dizkle, on the Bulkley South of

Hagwilget, and their history really begins with the observations

of the Hudson's Bay traders who came into the territory in the

1820's. No trace of Dizkle has ever been located, and there is

no objective evidence of pre-historic Wet'suwet'en occupation

south of Moricetown.

I would not wish it thought that by mentioning these

beliefs of the plaintiffs that I am making any specific

findings. There is much dispute about these matters, as there

is about much of the history I shall be mentioning in this

overview. Generally, my findings will be found not in this part

of my judgment, but later.

2. Early North American Exploration

It will not be necessary in this Judgment to pronounce on

the fascinating questions of Viking or other Norse-type

explorations on the north and east coasts of North America. For

my purposes it is sufficient to start with European expansion

into this continent after the voyages of various navigators such

as Columbus (1492), and Cabot, who according to Chief Justice

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Marshall, discovered North America in 1498 when he sailed as far

South as Virginia, and from whose discoveries "...The English

trace their title [to North America]": Johnson v. M'Intosh,

(1823) 8 Wheaton, 543 (U.S.S.C.) and, of course, the noted

French navigator-explorers such as Cartier, Champlain and many

others.

Following these and many other heroic efforts there were

gradual increases of populations in the Eastern Seaboard of the

United States, in the Maritimes, in Quebec, and in the Floridas,

with the English predominating in the former two areas, the

French in Quebec, and the Spanish in the south.

Early in this continuum other great explorations were under

way, principally from Europe west and southward. Magellan's

expedition circumnavigated the globe in 1519-22, and Drake

sailed into the Pacific landing at Drakes's Bay near the present

San Francisco in 1579, and then northwards but it is doubtful if

he landed on, or even saw the coastline of British Columbia.

With respect, my research differs from that of Hall J. in

Calder, (at p. 400) where he said Drake sailed as far north as

Cook did two centuries later. Cook, was forced far out to sea

by a fierce gale after leaving Nootka, and;

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"in the course of a long slant northwestward

[they] only saw the coast at a few points

before sighting (on May 4th) a snow covered

mountain which Cook identified with Bering's

Mount St. Elias, (roughly 1,000 miles

northwest from his anchorage at Nootka.

(R.T. Gould, Captain Cook, (1978))

I have not been able to locate Vol III of Hakluyt's

Voyages, but its sub-title refers to voyages "to all parts of

the new found world of America" and "...to California, Noua

Albion, and more northerly as far as 43 degrees...," including

the voyages of Sir Francis Drake around the world. I also find,

in an editors footnote to Hakluyt's Divers Voyages, (1582), J.W.

Jones ed.:

"Drake sailed as high as 40 [degrees] of

north latitude, with the bold design of

returning home by a north-east passage, and

still found an open sea before him; at this

point, however, the sufferings of his men

from cold obliged him to turn southwards

again."

I am unable to explain Hall J's reference, with respect to

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Drake, to lifeless trees, and natives living in houses covered

with earth. The snow covered ridges he mentions could be any of

the great volcanic mountains of the west coast of the United

States, such as Mounts Shasta, St. Helens, Hood, Ranier or even

Baker.

In the l580's or 90's, De Fuca, a Greek explorer in the

service of Spain, visited the same California coast as Drake.

We will never know whether he actually discovered a "widening

strait at 47 degrees 48"," which is approximately the location

of the great strait that now bears his name. That is what Lok

reported but Dr. Farley and other historians believe such

account is fictitious, although the geography is approximately

correct.

Meanwhile, back on the east coast Champlain in 1615 reached

Lake Huron, and was surprised to find that it was a fresh water

lake. Russian Cossacks and fur hunters reached their side of

the Pacific in 1639 and a trading expedition of 4 vessels out of

7 got lost and reached the Siberian Gulf of Anadyr, opposite the

mouth of the Yukon River in 1648.

While there was progressive movement westwards in North

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America, there was little activity in Siberia for the rest of

the 17th century as the principal Russian thrust was southwards

into China. Of greater importance, however was the incorporation

by Royal Charter of the Hudson's Bay Company in 1670, and the

establishment of the Forts on the west side of that bay which

gave its traders and explorers a great mileage advantage over

the French coureurs de bois heading out of Montreal for the

trapping areas of the Canadian north.

In 1673 Marquette and Jolliet entered the Mississippi River

by way of Green Bay (Wisconsin) and travelled down its course

nearly as far south as the Arkansas River when, fearing Spanish

interference, they turned homeward by way of the Illinois River

and then back to Lake Michigan. The source of the Mississippi,

however, remained unknown for more than one hundred years.

In 1690 interest was revived in Siberia and Russian traders

made their first visits to Kamchatka.

By the middle of the 1600's the French believed that

somewhere in the west there was a divide where one or more

rivers flowed westward to the Pacific. Their belief, however,

was that there was a large inland sea, known as "Mer de l'Ouest"

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or "Western Sea" which in turn drained into the Sea of the

South, or Pacific.

In 1670 Talon, the Intendant of New France instructed the

Sieur de Saint Lusson to proceed to the upper Great Lakes to

determine whether there was a route to the Sea, and to China.

Saint-Lusson, in 1671, met with a number of Indians at Sault St.

Marie, and proclaimed that he was taking possession of the upper

lakes, "and of all other territories discovered or to be

discovered."

At this time Jesuits travelling with Saint-Lusson

believed that it was no more than 300 leagues to the sea, and

not more that 1500 leagues to the Orient. A league equals 3

miles.

Of closer interest were the explorations of Henry Kelsey,

who, in the service of the Hudson's Bay Company travelled

westward from York Factory, wintered at the Pas, and in 1690 was

probably the first white person to see the Canadian prairies

reaching, probably, the area around present-day Saskatoon. For

unexplained reasons, few records are known to exist of Kelsey's

travels and although he remained in the service of the Company

for most of his life, his discoveries seem to have attracted

little attention.

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By 1700 there was little, if any, European influence in

western North America. Even horses were unknown to the plains

Indians until mid-century, or in the territory until the middle

of the 1800's. The maps collected by Professor Farley and those

produced on his cross examination disclose, generally, the state

of European knowledge at various dates. While the eastern and

southern parts of this continent were becoming understood, the

source of the Mississippi, the location of the Rocky Mountains

and the west coast north of California were all unknown. Most

maps show north-west America, including the territory, as "Terra

Incognita" or "These parts Entirely Unknown." This state of

relative ignorance about this part of the world remained that

way for almost another century.

This is not to say there was not some understanding in some

quarters about this largely unexplored part of the world. The

information known to those on the frontier, however, had not

reached the map-makers of Europe nor had the historical record

advanced the generally understood state of awareness beyond that

shown on the maps. It should be remembered that Cook reached

this coast only in 1778, 19 years after the capture of Quebec on

the Plains of Abraham in 1759, and that the earliest recorded

Russian sighting of the west coast of this continent (the

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volcano of Mount St. Elias in Alaska) by Bering's expedition was

not until 1741.

3.

The 1700's

In the 1730's and 40's, in the service of France, La

Verendrye and his sons established posts north-west of Lake

Superior at Rainy Lake and on Lake of the Woods and pushed

further west into what is now southern Manitoba, and southwards

into the drainage area of the Missouri River. In 1742, one of

his sons is reported to have achieved sight of the Rockies, but

Dr. Farley believes what he saw were more probably the Big Horn

Mountains of Wyoming. In an undated memorandum contained within

the La Verendrye papers in the National Archives of Canada one

of the La Verendryes noted:

"Upriver from the Brochets are the Gros

Ventres, then the Grandes Oreilles who live

at the height of land. After the latter

come the Gens du Serpent, who are said to be

much more numerous than all the other

nations and are their enemies, then come the

Noirs and after the Noirs, the Whites of the

Sea."

It is likely this information was obtained from Indians.

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The Gens du Serpent were the Shoshoni or Snakes who lived in the

present states of Wyoming, Montana and Idaho. The Blacks were

probably the Blackfoot of the Missouri and Saskatchewan Rivers

in present Montana and Alberta, and the Whites of the Sea may

have been the Spanish of California.

Other French reports, such as those furnished by

Bouganville, refer to a fort built 80 leagues further up the

Paskoia (Saskatchewan River) at Fort des Prairies in 1757.

Further, De Niverville may have established a short-lived "Fort

Lajonquiere," (the most westward of French penetration into what

is now Western Canada) in 1751 which has been variously located

"at the foot of the Rockies," or near the location of Calgary,

or possibly in what is now central Saskatchewan.

At this point, it is necessary to return to the East Coast

where major events were underway.

The War of Spanish Succession was ended by the Treaty of

Utrecht in 1713 by which France ceded Nova Scotia to Britain,

and Rupert's Land was returned to the Hudson's Bay Company. The

terms of the treaty, particularly the boundary between Rupert's

Land and New France were never finalized. For the next

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generation there was an uneasy peace on the frontier between

British and French settlements in North America, as well as

continuing competition between Hudson's Bay traders who operated

out of the Forts on that Bay, and the French who had a much

longer overland route, generally out of Montreal via the Ottawa

River, to the trapping grounds of the distant north and west.

For many reasons, not the least of which was concern about

the safety of settlers, and the fear of war with France, both

the British in London and the Governors in the Colonies were

persuaded to negotiate with the Indians. Numerous treaties of

peace and friendship were concluded partly with a view to

insuring the assistance, or at least the neutrality, of the Six

Nations which shared a common, westward-moving frontier with the

settlers from the colonies.

These treaties or agreements are of fundamental importance

to the understanding of the legal authorities which were so much

discussed at trial. They furnish the background for the

development of the law which applied to the eastern half of this

continent, and indeed, one of the central issues in this case

will be to determine whether that same law should be applied to

British Columbia which, as will be seen, has a completely

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different history.

Next came the Seven Years War, and the capture of Quebec by

General Wolfe in 1759, the surrender of Montreal in 1760 and the

Peace of Paris in 1763. By this Treaty, France ceded to Britain

all of her former possessions in New France including Quebec,

all of the coast and interior of Louisiana west of the

Mississippi, and East and West Florida.

Britain in turn

acknowledged France's claim to North America west of the

Mississippi but excluding Rupert's Land whose southern boundary

had never been settled but was often thought to be the 49th

parallel.

The British were anxious to keep peace on the frontier, and

for this and other mercantile reasons, Britain caused a Royal

Proclamation to be issued in 1763. This Proclamation, amongst

other things, established a huge hunting reserve for the Indians

generally east of the Appalachian Mountains but excluding the

existing colonies, the new colony of Quebec and Rupert's Land.

One of the interesting questions which I shall deal with

shortly concerns the reach of this Proclamation. The plaintiffs

say that even if the hunting reserve ended at the Mississippi,

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it squeezed north-westerly between the headwaters of that great

river (Lake Itasca in the present State of Minnesota at 47^o13'N;

95^o13'W) and the undefined south border of Rupert's Land, and

then fanned out across the Canadian prairies to the Pacific.

The defendants say it never applied west of the Great Lakes, or

more particularly in the present province of British Columbia.

More about that later.

Following the Peace of Paris, the inexorable pressure of

settlement continued to harass the Indian populations of North

America. The American colonies continued to negotiate with the

Indians and to enter into treaties with them. Quebec extended

its boundaries west to the Mississippi south of Rupert's Land,

and south into Ohio country in 1774. By the 1783 Treaty of

Paris the American colonies had gained their independence, and

the present boundary with the United States was established

through the centre of the Great Lakes. Quebec was then divided

into Upper and Lower Canada in 1791. During all of this period,

settlers were moving west in a continuing process. I suspect

activities "on the ground" were often quite different from the

political intentions and pronouncements of the statesmen,

usually to the disadvantage of the Indians.

At this point it is necessary to return to the territory.

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4.

The Proto-Historic Period

"Proto-historic" refers to the period before actual contact

with Europeans, but after European influences began to impact

upon an aboriginal people. From time to time in this judgment I

shall abbreviate "European Influences" to "contact." It is not

possible to speak with much confidence about the commencement of

this period in the territory but some historical facts are known

which at least permit informed estimates.

For the purposes of this case we can more or less ignore

the explorations of Drake and de Fuca for it is not believed

they reached our coast. Bering and Chirikov's expedition with

several ships sailed across the north Pacific in 1740-41 and the

latter sighted the volcanic activity of Mt. Elias in southern

Alaska. Their ships landed near Sitka, and sighted natives at 54

degrees North latitude thus commencing (or continuing) Russian

trading activities on the north Pacific coast. Russian presence

on this coast may have come earlier but I recall no specific

evidence of this.

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Captain James Cook R.N., on his 3rd voyage of discovery, in

search of a north-west passage, stopped at Nootka on Vancouver

Island in 1778. Although he then sailed further north before

returning to winter in Hawaii, and his vessel actually passed

through the Bering Straits after Cook's death, it did not land

on our north coast. We also know that at about the same time

numerous Spanish explorers visited our coast, as did Captain

Vancouver in 1793. Captain Vancouver and others such as Barclay

actually charted much of our coastline by 1794.

Those voyages, particularly Vancouver's, put to rest

forever the notion that there was a north-west Passage from sea

to sea, and also disproved the notions based upon de Font's

mythology that there was an Inland Sea. It is nevertheless,

entirely possible that the Straits of Georgia and Johnson

Straits had indeed been visited by some unknown navigator or

explorer who mistook such waters for an Inland Sea.

That same year Alexander Mackenzie, in the service of the

North West Company, reached tidewater near Bella Coola "from

Canada, by land, the 22nd of July, 1793."

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We also know that a cruel sea otter trade started in the

north Pacific in the 1780's with British, American, Russian and

possibly other nationals almost extinguishing the sea otter

until this trade fell into a sharp decline because of over-

hunting just after the turn of the century. This made it

necessary for traders to find other kinds of furs, and the

interior fur trade was their natural response. The fur trade,

of course, brought large quantities of trade goods to the north

coast some of which found a way into the interior. Duff

comments on how quickly coastal trade arose, stating in "The

Impact of the White Man" (1969, 2nd edition), that "within a

very few years after 1785 the entire coast was glutted with

trade goods".

By the early 1800's, Russian traders had established an

outpost at Sitka, and the Tsimshian and Carriers had established

trade networks with the Gitksan in the north and with the Bella

Coola people in the south. The Gitksan became middlemen for the

Tsimshian traders.

In 1805 Simon Fraser, also of the North West Company,

established Fort McLeod, the first fort west of the Rockies, and

also Fort St. James on Stuart Lake in 1806. He made his

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remarkable voyage to the sea on the river which bears his name

from Fort George to Point Grey and back in just 76 days between

May 22nd and Aug 6th, 1806.

But none of these explorers were in direct (or perhaps any)

contact with the Indian occupants of the territory. This seems

to have been the situation until after the merger of the

Hudson's Bay Company with the North West Company in 1821, at

which time the Company was given a monopoly over all British

North America except for the existing colonies (the Maritime

provinces, Upper and Lower Canada). In the same year the Czar

issued an Imperial Ukase asserting exclusive right of trade on

the Pacific coast north of the 51st parallel.

In 1822, however, William Brown of the Hudson's Bay Company

- one of our most useful historians - established Fort Kilmaurs

on Babine Lake. He and other agents of the company made

occasional journeys into parts of the territory. Brown himself

visited some Babine River Villages in the 1820's. MacGillvray

in 1833 was probably the first white person into the rest of the

area. Peter Skene Ogden visited Hotset (Hagwilget or

Moricetown) in 1836. Brown reports some minimal levels of

social organization but the primitive condition of the natives

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described by early observers is not impressive.

Fort Connolly was established at Bear Lake in the territory

in 1826, and the Hudson's Bay Company did not establish a post

at Hazelton until 1866.

Thus it would seem that the time of direct contact in the

territory was not earlier than the early 1820's which is a

reasonable date to select as the end of the proto-historical

period.

There is some conflict in the evidence about the start of

this period. Dr. Robinson believes that it was as early as 100

years before actual contact, mainly because of trade goods

filtering into the territory both from the east and south as

well as from known and unknown Russian (and possibly other)

Asiatic travellers or traders who may have visited our coast.

Other witnesses put the start of the proto-historical

period later than Dr. Robinson, possibly about the time of the

start of the sea otter trade in the last few years of the 18th

century or early 19th century.

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5.

The Historic Period

The difference between the pre-historic, proto- and

historic periods is relevant to the question of determining what

are

aboriginal as opposed to non-aboriginal practices. I shall

discuss this later.

It seems indisputable that the historic period began in the

territory with the establishment of Fort Kilmaurs on Babine Lake

by trader Brown in 1822. Although this is outside the

territory, it was close enough that his Journal provides the

first direct evidence of what was happening in the area. He

estimated the native population at around 1,000 but Dr. Ray

thinks it must have been closer to 7,000.

In 1822 Brown learned that the Atna (Gitksan, or any non-

Carrier) had barricaded the Babine River, and that the Gitksan

were apparently trading and fighting with the Sekani (Rocky

Mountain Indians) in the north-east.

In 1821 or 1822 there was a major slide in the Hagwilget

Canyon, near Hazelton which blocked the access of the salmon to

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the Bulkley River. The Babine Carriers, as they were then

described, at Hotset were then invited or permitted by the

Gitksan to occupy the canyon site at Hagwilget from where they

would have access to Skeena River salmon. Hagwilget has been a

Carrier, now Wet'suwet'en, village ever since.

The evidence suggests that the Indians of the territory

were, by historical standards, a primitive people without any

form of writing, horses, or wheeled wagons. Peter Skene Ogden,

the controversial trader-explorer visited Hotset in 1836 and

noted their primitive condition in his journal.

As already mentioned, McGillivray reached the Skeena-

Bulkley forks in 1833, and the same year Brown reports the first

indications of disease which from time to time ravaged the

aboriginal populations.

Fort Wrangel in present-day Alaska was established in 1825;

Fort Connolly, in 1826; Fort McLaughlin at Bella Bella in 1834;

Fort Simpson near Prince Rupert in 1835; and the new Fort,

called Fort Babine, was established in 1836 at the north end of

Babine Lake, replacing Fort Kilmaurs which was some distance

further south on the same lake.

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In 1825 Brown reported that in revenge for a killing, the

Gitksan had barricaded the river (presumably the Skeena or mouth

of the Bulkley) to prevent salmon from reaching Hotset. There

were other warlike barricades on the Babine River in this area,

but Brown was usually able to resolve such disputes.

In 1826 trader Brown visited the Gitksan people along the

Babine River but he did not, apparently, proceed as far as the

forks of the Babine and Skeena, nor did he ever visit the

Hazelton area, or the other Skeena villages in the territory.

Brown found some of the Atna, as he called them, wearing some

European clothing indicating that they had access to some

European trade goods.

During this period, or earlier, Legait, a Tsimshian,

enjoyed a trading monopoly on the middle Skeena which he or his

family maintained well into the 19th century. Throughout his

Journals Brown frequently recognized that he was having great

difficulty competing with the traders from the coast, and that

beaver returns were never what he hoped they would be. He had

great difficulty getting the Indians in his area to be as

industrious in their trapping as he wished they would be.

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It is now necessary to turn to the political history of the

province but I shall continue to make references to the

territory.

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6.

The Colony of British Columbia

Nothing of much political importance occurred in what is

now the province for some time following the voyages of Cook,

Vancouver, Dixon, Barkley and others. The Hudson's Bay Company

was headquartered near the mouth of the Columbia River where

James Douglas had been its Chief Factor since 1839.

Anticipating the loss of the Oregon Territory to the United

States, however, the Company prepared to move its operations to

Fort Victoria on Vancouver Island which Douglas had first

visited in 1843.

By the Treaty of Washington in 1846 Britain and the United

States settled the Oregon boundary dispute at the 49th parallel.

This was a serious blow to the Company which had been heavily

involved in the Oregon fur trade for many years.

In 1849 the Company was given a 5-year monopoly on the fur

trade on Vancouver Island on the understanding that it would

foster the settlement of the Island leading to the establishment

of a colony. In that same year the Colony of Vancouver Island

was established but Douglas was not immediately named Governor.

Instead, Richard Blanshard preceded him in that position, there

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being concern about appointing such a strong Company man as

Governor.

Douglas remained however as Chief Factor for the Company

and in that capacity he negotiated 11 of a total of 14 treaties

with

Indians on Vancouver Island, mainly in the vicinity of what is

now the City of Victoria. No treaties were ever negotiated on

the mainland.

Douglas became Governor of the Colony of Vancouver Island

in 1851.

As Douglas was a principal actor in setting the stage for

much of the misunderstanding about Indian rights which later

developed, it will be useful to mention that his policy for the

mainland, as described in several pronouncements and

correspondence with the Colonial Office in London, was that the

colony would be opened up for settlement quickly so as to

establish a British as opposed to an American community here.

Lands actually occupied by Indians for village sites, together

with their cultivated fields and adjacent hunting areas were to

be reserved for them and excepted from pre-emption by settlers.

Unlike the American experience where Indians were being confined

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by force to reserves, Indians in the Colony were entitled to the

free use of all unoccupied lands. Until 1866 Indians had equal

rights to pre-empt land for cultivation in the same way as all

other subjects of the Crown.

Returning to the chronology, gold was discovered on the

mainland in the mid 1850's and there was concern about the

influx of American miners and a possible migration of the Mormon

followers of Brigham Young into what is now British Columbia.

This led to discussions about establishing a further colony and

Douglas issued a proclamation (probably ultra vires but later

ratified), warning that his permit was required for gold mining

on the mainland.

It seems to be accepted by scholars that concern about

American influences, mainly miners and Mormons, was indeed the

principal reason for the establishment of a mainland colony, and

it is likely this province would have become a part of the

United States but for the measures taken by Douglas to ensure

continued British control of the colony.

An Act of the Imperial Parliament dated August 2, 1858

provided for the Government of the Colony of British Columbia

which was proclaimed November 19, 1958. Douglas was appointed

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Governor of the mainland colony as well as continuing as

Governor of the Colony of Vancouver Island. On the same day the

law of England as it then existed was introduced into British

Columbia, and on December 2 Douglas issued a further

Proclamation providing that the land of the colony could only be

granted by him in his capacity as Governor.

There was an interesting exchange of letters between

Douglas and the Colonial Office in London in 1861 when the

former requested funds for the purchase of Indian lands on

Vancouver Island but he was informed that such funds would have

to be obtained out of the revenues of the colony. Douglas,

however, instructed Col. Moody to mark out townsites for

settlers, and reserves for Indians which would not be available

for pre-emption. In 1863 the Legislative Council of Vancouver

Island voted $9,000 for the acquisition of lands from the

Cowichan and Chemainus Indians.

In the following year, 1864, a Legislative Council was

established for the mainland colony and Douglas then retired.

In 1866 the two colonies of Vancouver Island and British

Columbia were amalgamated into the Colony of British Columbia.

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In 1867 the four original Provinces, Nova Scotia, New

Brunswick, Lower and Upper Canada, formed the Canadian

Confederation. In the same year the United States purchased

Alaska from Russia.

The 1860's were also significant years in the territory.

There were continuing small pox and other epidemics, trapping

continued to be the principal commercial activity, and the

Collins Overland Telegraph arrived at Kispiox in 1866 and pushed

northwards for a few miles to Fort Stager where the line was

abandoned because of the success of the trans-Atlantic cable.

The Collins project, however, marked the introduction of horses

into the territory, and provided employment for the local

Indians as packers. In the same year the Hudson's Bay Company

established its short-lived post at Hazelton.

The years 1870-71 saw the start of the Omineca gold rush

and the commencement of the commercial salmon canning industry

at the coast. This industry quickly attracted the attention of

Gitksan men and women many of whom took annual employment at the

coast during the fishing season. This has continued to the

present time.

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In 187l British Columbia joined the Canadian Confederation.

Some of the provisions of the Terms of Union, particularly No.

13 relating to the provision of lands for Indian reserves have

led to a great deal of misunderstanding which will be more fully

considered later. Generally speaking, all public lands became

vested in the province which agreed to furnish adequate lands

for reserves. Responsibility for Indians and Indian lands was

assigned exclusively to Canada.

While some Indian reserves were established as early as the

1860's, the process was the subject of continuing correspondence

and debate. Part of this centred on whether Indian land rights,

which were never defined, should be extinguished by treaty as in

Ontario and the United States, or whether reserves should be

"adjusted." British Columbia consistently suggested the latter

while Canada originally supported the former but gradually came

to accept the position of the province.

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Generally speaking, Canada at this time was negotiating

treaties with nomadic or semi-nomadic Indians on the prairies

which included the surrender of aboriginal "title," the payment

of annuities or other payments, and Indian Reserves comprising

hundreds and thousands of acres. Canada originally believed the

same procedure should be followed in British Columbia.

The province, on the other hand believed Canada's position

was unrealistic, and that its own policy, as first established

by Governor Douglas, was entirely adequate given the different

history and geographic circumstances of the province.

There were allegations that Canada had been deceived or

mis-informed about the Indian policy of the Colony before

Confederation, but that was denied by the province. That entire

question will be examined later in this judgment.

This dispute continued for many years. In 1874 Lord

Dufferin, the Governor-General reported to Lord Carnarvon, the

Colonial Secretary, that British Columbia was behaving badly. A

British Columbia Land Act was disallowed by the federal

government and the Governor-General made a memorable public

attack on the government of British Columbia.

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The 1870-80's were turbulent times in the territory with

some difficulty and much hard feeling. Specific incidents, such

as the accidental burning of Kitsegeucla in 1872, Youman's

murder in 1884, the killing of Kitwankool Jim (sometimes called

the Skeena uprising) in 1888, and other incidents are examples

of strained relations between the old and the new cultures. For

reasons which seemed sufficient at the time, but which have

caused great resentment, the federal government made the Indian

potlatch illegal in 1884 and this provision was not repealed

until 1951.

Although Surveyor Dewdney may have laid out some reserves

in the territory as early as 1871, the first reserve

commissioner to arrive there after Confederation was A.W. Vowell

in 1890, but he did not actually create any reserves. In the

following year, however, O'Reilly established reserves at many

of the Skeena villages amid some hostility, particularly at

Kispiox. At this time the population of Kisgegas, for example

was only about 300 persons.

During all this period the Indians were leaving the distant

areas of the territory to live in the villages in the

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transportation corridor.

The first farmers moved into the area around 1900 and there

was much resentment, which continues to this day, about pre-

emption of land occupied by Indians and over the issue of land

script for veterans of the Boer War. This script was used to

dispossess some individual Indians from land which they had been

occupying, especially in the Bulkley Valley.

The construction of the Grand Truck Pacific Railroad from

1908 to 1914 provided some employment for the Indians, but also

opened up this inviting country to further settlers.

In the meantime the dispute about Indian rights continued

to simmer. The federal government was anxious to resolve the

"rights" issue but the province was adamant that no such rights

existed except claims to village sites and cultivated fields.

In order to deal with reserves, the representative of the

federal government, McKenna, agreed to "drop" the question of

title, believing that the Courts, by an anticipated reference to

the Exchequer Court (to which the province never agreed), would

settle the rights problem in due course. Unfortunately, it

never did.

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As a result a Royal Commission known as the McKenna-McBride

Commission was established in 1913 to adjust Indian reserves in

the province. The commissioners unquestionably gave assurances

to the Indians in the territory that the reserve adjustment

process in which they were engaged could not deal with

aboriginal rights or prejudice their claims which, the

commissioners said, would be looked after by other means, more

particularly by the proposed reference to the Exchequer Court.

The province and Canada each accepted the report of the

Royal Commission but it dealt only with reserves and did not

mention aboriginal interests.

By Order in Council P.C. 1265 dated July 19, 1924, Canada

acknowledged that British Columbia had satisfied all the

obligations of the Terms of Union respecting the furnishing of

lands for Indian reserves and described the process as a

"...full and final settlement of all differences between the

governments of the Dominion and the Province...."

As the

Dominion represented the Indians in this process, the province

pleads P.C. 1265 as a release.

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In 1927 a Special Joint Committee of the House of Commons

and Senate enquired into "Indian affairs" and rejected all the

claims of the Indians of British Columbia to anything except the

reserves which had been allotted to them.

In 1938 British Columbia formally transferred to Canada all

the lands which had been set aside as reserves for Indians.

Indians were given the right to vote in provincial

elections in 1947. There were major revisions to the Indian Act

in 1951 which repealed some of its most restrictive and

offensive provisions particularly the prohibition against feasts

and against claims related activities. The prohibition against

pre-emption was not removed until 1953.

I do not find it necessary to discuss various policy

statements made by Canada since Calder reflecting a changed

federal attitude to Indian land claims, or indeed the recent

statements made by the province in that connection, for these

are political matters which do not bear upon the resolution of

the legal issues which arise in this case.

In the foregoing overview, I have touched only briefly on

matters which will be considered in greater detail in this

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judgment.

It now falls to this Court to pronounce on the important

"rights" questions which the Indians say have been outstanding

for so long, and which rights the province says have never

existed or have been extinguished or settled with the

constitutional representatives of the Indians.

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PART 5. THE PLAINTIFFS

1. Present Social Organization

An understanding of the plaintiffs' case requires a brief

description of the present social organization of the Gitksan

and Wet'suwet'en people. This is necessary because one of the

ingredients of aboriginal land claims is that they arise from

long term communal rather than personal use or possession of

land. In Baker Lake, to which I shall return in due course,

Mahoney J. in Baker Lake said that plaintiffs asserting

aboriginal interests must show, amongst other things:

"That they and their ancestors were members

of an organized society...,"

One of the plaintiffs' fundamental positions on this

question is that the present social organization of their

peoples is the result of evolution from what has existed in the

territory from time immemorial. Thus, they say, it is possible

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to establish their case, in part, by inference from their

present highly structured social organization.

The picture painted by the Indian witnesses and their

anthropological experts suggested that all aboriginal life

revolves around the Chief, Clan and House system, and around

aboriginal use of, and connection with, House territories.

I do not question the social importance of these

institutions but I regret to say that I believe the plaintiffs'

evidence in this connection was overstated. I would not go so

far as to characterize these institutions as a club, as one

counsel incautiously did, but there are far too many instances

disclosed in the evidence where the Indians themselves did not

act in accordance with the crest system for me to elevate it to

the high levels attempted at trial.

The requirement of social organization in the test for

aboriginal interests is not a high one as I shall demonstrate

when I discuss the authorities: Re Southern Rhodesia, (1918)

A.C. 211 (J.C.P.C.).

In their opening, counsel for the plaintiffs asserted that

the plaintiffs have formed a distinctive form of confederation

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between their Houses and clans and that they have always enjoyed

a level of civilization which is at least equal to many others

which have received much greater prominence. The defendants, on

the other hand point to the absence of any written history,

wheeled vehicles, or beasts of burden, and suggest the Gitksan

and Wet'suwet'en civilizations, if they qualify for that

description, fall within a much lower, even primitive order.

I have no doubt life in the territory was extremely

difficult, and many of the badges of civilization, as we of

European culture understand that term, were indeed absent.

Because of the low threshold, however, it will be not be

necessary for me to quantify the level of aboriginal social

organization in the territory at any particular time.

I agree

that "feasting," and the House and clan system are important

parts of the social organization of the Gitksan and Wet'suwet'en

people, and that the Chiefs play an important role in those

activities.

What follows is a brief recital of the most significant

features of Gitksan and Wet'suwet'en cultural organization. At

this stage I am merely summarizing what the Indian witnesses

said on this question without attempting an exhaustive analysis.

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I can say, however, that the descriptions I heard tended to be

both idyllic and universal, neither of which terms, in my view,

accurately describe what "happened on the ground" in the day to

day life of these people. Life for the Gitksan and Wet'suwet'en

has never been idyllic, and universality in practice was seldom

seen.

On the evidence, there are some, but not many, differences

between the present social organization of the Gitksan and

Wet'suwet'en people. This may well be because it is common for

adjacent aboriginal people to "adopt" customs and practices from

each other. That different people would have so many similar

institutions and practices almost demonstrates the borrowing

theory. Most of the experts believe the Wet'suwet'en adopted

much of the culture of the Gitksan, but culture, like their

languages, may well have travelled in both directions.

The fundamental premises of each people are firstly that

persons must marry outside their clan (exogamy), and secondly,

that all their people are divided by matrilinear descent into

clans and Houses. Thus, every person born of a Gitksan or

Wet'suwet'en woman is automatically a member of his or her

mother's House and clan.

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The interaction of these fundamental principles means that

a father is always a member of a different House and clan than

his children, and House property devolves always to the mother's

side. The father's side (wilxsi'witxw in Gitksan, haldza in

Wet'suwet'en), however, also plays an important role in this

social order and has important responsibilities particularly in

connection with funerals. Also, each person has rights

(amnigwootxw, in Gitksan, neg'edeld'es in Wet'suwet'en) to the

use of a father's House lands for a variable period of which

there are several versions.

According to plaintiffs' counsel there are four Gitksan and

four Wet'suwet'en clans which have some closely common names.

The Gitksan clans are:

Ganeda or Lax See'l, (Frog Clan)

Lax Gibuu, (Wolf Clan)

Giskaast, (Fireweed Clan)

Lax Xskiik (Eaqle Clan).

The Wet'suwet'en clans are:

Laksilyu, (Small Frog Clan)

Gilserhyu, (Frog Clan)

Gitdumden, (Wolf Clan)

Laksamshu, (Fireweed Clan)

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The plaintiffs' Outline of Argument lists 35 Gitksan chiefs

of Houses claiming 98 separate territories, and 13 Wet'suwet'en

chiefs of Houses claiming 35 separate territories.

The Gitksan recognize associations between Houses which

have long-standing relations or common origins called

"wil'nat'ahl."

For example, Mrs. MacKenzie, Hereditary Chief

of the House of Gylogyet claims the people of eight Houses

(Kuamoon, Madik, Hlo'oxs, Luus, Wee Eeelasst, Haaluus and

Amagyat) as her wil'nat'ahl (people with whom she is connected,

or "people who are closely woven together"). There are many

other examples.

The evidence discloses that Houses have the capacity to

merge or divide, so as to create amalgamated or new Houses.

This sometimes happens when a House gets too large or too small.

As House membership depends upon female members who alone can

populate a House, it is sometimes necessary to take new members

into a House by adoption, usually but not always females.

requires the approval of the Head Chiefs. Similarly, if a

This

member marries an outsider, or within his or her own clan, then

compliance with Gitksan and Wet'suwet'en law is sometimes

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achieved by the adoption process.

Each House has one or more "Hereditary Chief" as its

titular head. Actually, however, the chiefs, one of whom is

generally called the Head Chief ("Simoighet" in Gitksan,

"Diniizee" in Wet'suwet'en) and lesser chiefs, "Wings of the

Chief," are not truly "hereditary" by Euro-Canadian

understanding because the office of chief does not automatically

devolve to the next of kin upon the death or retirement of the

old chief.

Instead, the Head Chief of a House is selected, sometimes

at a very young age for future chieftainship, and sometimes for

purely practical or political reasons. The selection process is

a flexible one, involving the elders of the house, and sometimes

the Head Chiefs of the other Houses of the clan.

For example, when Jeffrey Johnson (Hanamaxw) was alive it

was generally believed that his niece, Mrs. Olive Ryan (Gwaans),

would succeed him as chief of his House of Hanamaxw. When he

died in 1966, however, Mrs. Ryan was not well so her daughter,

Joan Ryan, who has lived and taught school in Prince Rupert

since 1965, and still lives there, was selected to be head

chief. She says she is able to discharge her chiefly duties

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notwithstanding her residence in Prince Rupert.

Similarly, James Morrison, who lived most of his life

either in Kitwangak or on the northern territories of the House

of Wiigyet, was made chief of a Kitwancool House as a result of

some domestic politics that arose after the death of the former

chief.

Lastly by way of example, Peter Muldoe was a senior chief

in the House of Wiigyet, having the chiefly name of Wii Seeks.

The Head Chief of the House of Gitludahl was Moses Morrison. In

1971 Mr. Morrison decided his chiefly name should be passed to

Mr. Muldoe. When Mr. Morrison died in 1985 there was a family

meeting which confirmed this selection. It was also decided

that the related Houses of Waiget, Wii Seeks, Wiigyet and

Gitludahl, all of the Fireweed Clan, would combine into the

House of Gitludahl of which Mr. Muldoe became, and he still is,

its Simoighet. Thus Mr. Muldoe, Gitludahl, claims to be the

owner of a number of territories which, on the plaintiffs'

theory of this case, have from time immemorial belonged to a

House of which he was not a member until very recently. His

children, of course, belong to their mother's House and his son

Earl Muldoe is Delgamuukw, the first named plaintiff.

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The members of a House are not always blood relatives,

though they usually are.

There is no head chief for the clans but there is a ranking

or order of precedence within certain communities or villages

where one House or clan may be more prominent than others.

In addition, some Houses are associated together through

family or other relationships brought about by separations,

mergers or amalgamation of Houses. Thus, what may sometimes

appear to be just one House may really be two or more Houses,

and the opposite may also be true. For example, Mrs Olive Ryan,

whose chiefly name is Gwaans, is a Gitksan matriarch in the well

known House of Hanamaux, but she claims she has territory of her

own. Similarly, Mrs. MacKenzie is head chief of the House of

Gylogyet, but she recognizes 4 sub-chiefs of her House whose

ancestors were, in earlier days, the chiefs of separate Houses.

On this question, as on many others, there seems to be

considerable flexibility.

Next, I wish to discuss the particular role of House

territories in the social organization of these people. It is

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the plaintiffs' position that each House "owns" one or more

territories and most Houses "own" one or more fishing sites

which they say have been used by them and their ancestors from

time immemorial. Moreover, in a very few cases some chiefs

claim they "own" other territories which their ancestors

acquired from other Houses or other aboriginal peoples by

settlement or peace treaty. For the purposes of this action, I

regard such territories recently acquired territories as

indistinguishable from other "owned"

territories.

Although most House chiefs and members now live in or near

the transportation corridor which I described earlier, their

position is that these territories belong to them by aboriginal

(and common) law by reason of use, possession and occupation

from time immemorial, that they still use these territories

(sometimes), and that they retain an actual and spiritual

association or connection with these territories which preserves

their entitlement.

Each House has some physical and tangible indicators of

their association with their territories. For example, some

Houses have totem poles on which are carved the crests of their

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Houses, while others have distinctive regalia.

Most if not all

Gitksan Houses have oral histories and an "adaawk" which is a

collection of sacred oral reminiscences about their ancestors,

their histories and their territories.

The Wet'suwet'en Houses do not have a true equivalent of an

adaawk, but they each have a "kungax" which is a spiritual song

or songs or dance or performance which ties them to their lands.

The spiritual connection of Houses with their territory is

most noticeably maintained in the feast hall, where, by telling

and re-telling their stories, and by identifying their

territories, and by providing food or other contributions to the

feast from their territories, they remind themselves over and

over again of the sacred connection that they have with their

lands.

Dr. Daly, one of the plaintiffs' anthropological witnesses

added a perspective to the feast which I did not understand from

the lay witnesses. I understood the witnesses to place greatest

emphasis on having feasts for ceremonial purposes and for the

purpose of making important decisions.

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Dr. Daly suggested the underlying purpose of the feast was

also to clear a person or family of debt or obligation. Other

writers stress the re-distribution of wealth by a complicated

system of contributions and gifts.

I suspect all these perceptions may be partly right

although the emphasis I perceived from the lay witnesses was

certainly different from that of the experts.

Dr. Daly's evidence brings up a painful subject.

Historically, feasts often led to the actual or assumed

obligation to give away property, and this sometimes produced

exaggerated results when some Indians were persuaded or felt

obliged to give away all or much of their property. This

practice was not confined to the Indians of the territory but

was widespread throughout the province.

As is so often the case in these matters there are two

sides to the story. The Indians believe this aspect of feasting

was and is a part of their tradition. The authorities regarded

it differently. I do not find it necessary to attempt to

pronounce on this question.

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There were also some aboriginal practices associated with

feasting which some persons of different cultural background

classified as barbaric. These were some of the causes of an

insult suffered by Indians which is still deeply resented.

These alleged excesses in feasting practices during the

last century attracted the critical attention of both the clergy

and the federal civil authorities. The clergy reacted

predictably to what they regarded as heathenism; the civil

authorities, on the other hand, found the practice of giving

away all or most of one's property harmful to the indians and to

the community generally. Each authority, for different motives,

sought without success to eliminate feasting. As a result, the

federal government imposed a legislative ban on feasting which

is seldom a useful way to control or reform cultural practices.

This prohibition continued in the Criminal Code until 1951 but

it was no more successful than the American experience with a

different kind of prohibition.

The plaintiffs allege that their Head Chiefs are the

custodians of the names, crests and territories of the Houses.

On the death of a chief a new chief is chosen, usually a niece

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or nephew but sometimes a brother or sister of the old chief.

The succession of the new chief carries with it the name,

regalia, territory and authority of the old chief.

Occasionally, if there is no suitable successor, a caretaker

chief from outside the House takes the chiefly name and keeps it

until a new chief is ready to assume his rightful place. Steve

Robinson, Spookw, of the House of that name, is an influential

Gitksan chief who has been the caretaker chief of that House for

many years.

It is the plaintiffs' position that these social and

cultural practices have been firmly in place governing these

people, their communities, and their lands, from time

immemorial.

I turn next to describe other forms of Gitksan and

Wet'suwet'en organization.

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2. Band Councils

Band councils were first established by an early Indian

Act, and they have been continued under successive revisions..

Under this legislation various bands councils have been

established, usually associated with Indian reserves and

geographic locations such as each of the Gitksan Skeena villages

and the Wet'suwet'en villages of Hagwilget and Moricetown.

These councils are elected by the registered members of the

bands. Band membership is determined objectively under the

Indian Act.

Many Indians object to the Band system, mainly because it

was imposed upon aboriginal people arbitrarily. I gained the

impression the Gitksan and Wet'suwet'en Band Councils are

probably doing a fairly good job looking after their members but

this may not be a universally held view. As very few non-chiefs

gave evidence, I am not in a position to express any opinion on

this question.

Many hereditary chiefs are elected to band councils, but

they are not automatically councillors or chief councillors.

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Thus, Henry Alfred (Wah tah keg'ht) is Hereditary Chief of the

House of that name which claims to own a large territory in

which the village of Moricetown is situated. At the time of

trial he was not a member of the Moricetown Band Council. On

the other hand, Alfred Joseph (Gisday'wa) is a Wet'suwet'en

hereditary chief claiming a large territory near Houston yet he

has lived most of his life at Hagwilget where he was for many

years a member of its band council and, until quite recently,

its Chief Councillor.

The band councils usually maintain offices with a paid

staff in their respective villages. Doris Wilson-Kenni, a sub-

chief in the House of Spookw, and a prominent witness at trial,

is the manager of the Hagwilget Band Council.

Generally speaking, the band councils concern themselves

with municipal-type functions including welfare, health and

education, but they have gradually assumed municipal

responsibilities. They negotiate for and administer funds

provided by Canada, and they administer Indian reserves

established under the Indian Act.

It was suggested in the evidence, and in argument, that the

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band councils are the alters ego of the Hereditary Chiefs but I

am also unable to express any opinion on that question. Some

very senior hereditary chiefs are heavily involved in the Band

system, and I suspect the elected Band Councils are as

representative of the total Indian populations in their areas as

the Hereditary Chiefs. I believe these councils are independent

of the chiefs although I have no doubt they respect the chiefs

in the sense that one renders unto the holder of an office that

which is appropriate.

3.

Tribal Councils

Quite recently, tribal councils have been established by

the Indians as coordinating agencies. Originally, the tribal

council operating in the territory was called the Gitksan-

Carrier Tribal Council. It first advanced a comprehensive land

claim for most of the territory in 1977. Then in 1978 the

present Gitksan-Wet'suwet'en Tribal Council was incorporated and

I am aware that there are other tribal councils in other areas

of the province such as the Carrier-Sekani Tribal Council and

others.

In addition to its coordinating function, the Gitksan-

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Wet'suwet'en Tribal Council could be described as the political

arm of these Indian peoples, particularly in connection with

land claims. Most of the territorial and "expert evidence"

research for this case has been the responsibility of the tribal

council. Mr. Neil Sterritt, Jr., the past president of the

tribal council, has been particularly active in the collection

of territorial evidence. I have no doubt this litigation has

been largely directed by the tribal council. This is not to say

that the chiefs have not played a role in the conduct of this

case although they have complained about a lack of consultation

about it.

The by-laws of the Gitksan-Wet'suwet'en Tribal Council

specified that the members of the council would be elected by

the 7 villages of Gitwangak, Gitseguecla, Glen Vowell, Kispiox,

Gitenmaax (Hazelton), Hagwilget and Moricetown. The Gitksan

village of Kitwancool did not join the tribal council. The

legally incorporated Gitksan-Carrier Tribal Council was

dissolved for unexplained political, tactical or other reasons

during the course of this litigation, but it carries on the same

functions as an unincorporated society with its office and staff

at Hazelton.

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It was also suggested that the tribal council is the alter

ego of the hereditary chiefs, but again I cannot be sure about

that. The tribal council, in my view, is the political

instrument of the band councils. Most members of the tribal

council are hereditary chiefs but not necessarily simoighet.

The current president of the tribal council is Mr. Don Ryan

whose sister, Joan Ryan, is the hereditary chief of the House of

Hanamaxw. Although Mr. Ryan has a chiefly name in that house, I

do not accept that Ms. Ryan and the other hereditary chiefs

directly or indirectly control the operations of the tribal

council although they undoubtedly have influence. The tribal

council seems to have far more direct political power and

authority than the hereditary chiefs.

I conclude there are, as might be expected, several layers

of social organization of which the band councils, the tribal

councils and the hereditary chiefs of the Houses are all

significant participants. It is difficult for a cultural

outsider accurately to assess the real and present interaction

of these organizations. Because of the view I have of this

case, it will not be necessary for me to do so.

I wish to say, however, that I shall leave this case with

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the settled conviction that, in the long run, the greatest value

of this case, apart from being the first stage in the settlement

of legal rights, may well be the enhancement of interest in

Gitksan and Wet'suwet'en languages, traditions and cultures.

This is because the evidence satisfies me this case has been a

"Battle of Britain" for these peoples and it has inspired them

to renew (an accurate word, in my view) what was a declining

interest in their aboriginal heritage. The interest and

activity generated by this law suit assures the survival of

these peoples as distinct societies. This may at one time have

been doubtful but I now believe it is a certainty. I accept

that the chiefs or the band councils started this process, but

the tribal council has provided the energy and leadership to see

it through to the end for which the Gitksan and Wet'suwet'en

people should be grateful.

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PART 6. THE NATURE OF THE ACTION

1. The Plaintiffs

Instead of bringing this action in the name of the Tribal

Council, or Bands on behalf of the Gitksan and Wet'suwet'en

people, the actual plaintiffs in this action are 39 hereditary

Gitksan and 12 Wet'suwet'en (total 51) chiefs for all or most of

the Houses of the Gitksan and Wet'suwet'en peoples, except of

course, the 12 Kitwancool chiefs.

The theory of the plaintiffs is that their chiefs are

themselves, as well as on behalf of Houses or members, entitled

to a judgment declaring their ownership, under Canadian, Gitksan

and Wet'suwet'en law of the individual territories they claim.

There is no specific alternative claim pleaded by the plaintiffs

collectively for the territory or any part of it on a communal,

people-wide basis.

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The Statement of Claim alleges that these hereditary chiefs

individually bring this action on behalf of themselves and on

behalf of their House or its members. As mentioned, some

plaintiff-chiefs purport also to represent other named Houses.

Thus there are 51 named plaintiff-chiefs who purport to

represent a total of 71 Houses, although that may not be

strictly accurate because the House of Wiigyet is included in

both

paragraphs 32 and 48 and there may be other anomalies. Mr.

Grant told me there are 133 separate territories. Many chiefs

claim more than one territory for their own Houses. For

example, Hagwilnegh claims 5 widely separated territories.

In the early stages of the trial plaintiffs' counsel

indicated that this case, unlike Calder, was "all or nothing,"

that is the claim was for ownership and jurisdiction, and the

plaintiffs were not seeking any lesser relief. This position

was wisely moderated later in the trial when Mr. Grant made it

clear that the plaintiffs were also seeking a declaration of

their aboriginal rights. He said that while ownership and

jurisdiction were the plaintiffs' primary claims, they wished

the Court to grant them whatever other rights they may be

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entitled to.

This statement was made on February 12, 1988 during the

argument leading to unreported Reasons for judgment on this and

other questions dated February 18, 1988 in which I said:

"In my view it is highly doubtful if

the plaintiffs have sufficiently pleaded

Calder type or other alternative claims to

aboriginal rights additional to the claim to

ownership and jurisdiction. Such claims are

pleaded, if at all, obliquely such as in

paragraphs 57 and 75 and by reference to

aboriginal rights in

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paragraph s 74, 74(a) and in Prayers to

Relief 6 and 9.

It is not for me to suggest or require

amendments and it may be that the course of

the trial, including the clear statement

made by Mr. Grant on February 12th, 1988

will be sufficient to permit the plaintiffs

to assert alternative claims additional to

ownership and jurisdiction. I leave that

question for the time being to counsel."

Since that time we have heard a great deal of evidence and

argument, and although there have been 8 Amended Statements of

Claim, no amendment in this connection has been sought. Because

of the course of the trial, and notwithstanding the consistent

and firmly stated position of the province to the contrary, I

find that a claim for aboriginal rights other than ownership and

jurisdiction is also open to the plaintiffs in this action.

That being so, it is probably unnecessary to review the

Statement of Claim. However, those reading these Reasons may be

curious to know precisely what has been alleged so I shall set

out a brief narrative summary of the allegations subsequent to

Part 7. Some Comments on Evidence

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the first paragraphs of the finally Amended Statement of Claim.

The early paragraphs only identify the plaintiffs. That part of

the Statement of Claim is reproduced in Schedule 2.

Part 7. Some Comments on Evidence

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The Statement of Claim alleges:

(1) The plaintiffs represent all the Gitksan people

(except those in the Houses of the Kitwancool Chiefs), and all

the Wet'suwet'en people, and each nation shares a common

territory, language, laws, spirituality, culture, economy and

authority (paras. #52 and #54);

(2) The plaintiffs are descendants of and successors to

the hereditary Gitksan and Wet'suwet'en chiefs and were so on

October 23, 1984, the day on which the Writ in the action was

issued (para. #55);

(3) The plaintiffs have owned and exercised jurisdiction

over the lands described in Schedule A and B which are called

"the Territory" (para. #57). (This "Territory" has been amended

a number of times as will be discussed later.)

(4) Since time immemorial the plaintiffs and their

ancestors have:

(a) lived within the Territory;

(b) harvested, managed and conserved the resources

within the Territory;

Part 7. Some Comments on Evidence

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(c) governed themselves according to their laws;

(d) governed the Territory according to their laws

and

spiritual beliefs and practices;

(e) exercised their spiritual beliefs within the

Territory;

(f) maintained their institutions and exercised their

authority over the Territory through their

institutions;

(g) protected and maintained the boundaries of the

Territory;

(h) expressed their ownership of the Territory

their regalia, adaawk, kungax and songs;

through

(i) confirmed their ownership of the Territory

their totem poles;

(j) asserted their ownership of the Territory by

specific claims. (para. #57)

(5) The right to own and exercise jurisdiction over the

territory of the Gitksan and Wet'suwet'en Chiefs, and the

resources thereon and therein was at all material times a right

enjoyed by the Gitksan and Wet'suwet'en chiefs and the members

of their Houses (paras. #59 and #60);

(6) The plaintiffs and their ancestors exercised a

jurisdiction over the territory as against other aboriginal

people (para. #61);

Part 7. Some Comments on Evidence

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(7) The plaintiffs have enjoyed and still enjoy their

aforementioned rights as recognized and confirmed by the Royal

Proclamation of 1763 which, the plaintiffs say, applies to

British Columbia (paras. #63 and #64);

(8) Alternatively, by virtue of the Royal Proclamation,

the plaintiffs enjoy rights of ownership and jurisdiction to the

territory (para. #66);

(9) The Constitution Act, 1867, s.91(24), gave the

Sovereign in Right of Canada the exclusive right to obtain the

surrender of the plaintiffs' rights in respect of their lands

and that any rights of the defendants thereto under s.109 are

subject to the plaintiffs' ownership and jurisdiction (para.

#67);

(10) That the Terms of Union of British Columbia, 1871 and

the Constitution Act, 1982 ss. 25, 35, 37 and 52 preserve the

plaintiffs' aboriginal rights to the territory including

ownership and jurisdiction which are paramount to all

enactments, past and present, of the Province of British

Columbia (paras. #68 and #69);

Part 7. Some Comments on Evidence

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(11) That no part of the territory, no resources thereon,

nor the jurisdiction thereover of the plaintiffs' chiefs have

ever been surrendered, ceded to or purchased by the Imperial,

Federal or Provincial Crown or by any person on behalf of any

Crown at a meeting of assembly or otherwise (para. #70);

(12) Customary and conventional international law requires

the provincial defendant to recognize and confirm the right of

the plaintiffs to ownership and jurisdiction over the territory

(para. #71);

(13) The plaintiffs have never ceased to assert their

aboriginal title, ownership and jurisdiction and right of

possession of the territory in accordance with their aboriginal

laws and practices (para. #72);

(14) The laws of British Columbia are subject to the

plaintiffs' aboriginal title, ownership and jurisdiction (para.

#73);

(15) The aboriginal title, jurisdiction and ownership of

the plaintiffs has not been and cannot be extinguished without

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their consent (para. #74);

(16) Alternatively, that no notice of extinguishment has

ever been given (para. #74(a));

(17) That the provincial defendant has wrongfully alienated

lands within the territory and deprived the plaintiffs of the

right of ownership and jurisdiction, causing the plaintiffs loss

and damage (paras. #75, #76 and #77).

(18) As a result, the plaintiffs claim relief which appears

in the Statement of Claim as follows:

I.

THE CONTENT OF ABORIGINAL RIGHTS

1.

A declaration that the Plaintiffs

have a right to ownership of and

jurisdiction over the territory.

2.

A declaration that the Plaintiffs'

ownership of and jurisdiction over

the Territory existed and

continues to exist and has never

been lawfully extinguished or

abandoned.

3.

A declaration that the Plaintiffs'

rights of ownership and

jurisdiction within the Territory

include the right to use, harvest,

manage, conserve and transfer the

lands and natural resources, and

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106

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make decisions in relation

thereto.

4.

A declaration that the Plaintiff's

rights to jurisdiction includes

the right to govern the Territory,

themselves, and the members of the

Houses represented by the

Plaintiffs in accordance with

Gitksan and Wet'suwet'en laws,

administered through Gitksan and

Wet'suwet'en political, legal and

social institutions as they exist

and develop.

5.

A declaration that the Plaintiffs'

rights to ownership of and

jurisdiction over the Territory

include the right to ratify

conditionally or otherwise refuse

to ratify land titles or grants

issued by the Defendant Province

after October 22, 1984, and

licences, leases and permits

issued by the Defendant Province

at any time without the

Plaintiffs' consent.

6.

A declaration that the aboriginal

rights of the Plaintiffs including

ownership of and jurisdiction over

the Territory are recognized and

affirmed by Section 35 of the

Constitution Act, 1982.

II. RESTRICTIONS ON THE DEFENDANT, HER MAJESTY

THE QUEEN IN RIGHT OF THE PROVINCE OF

BRITISH COLUMBIA

7.

A declaration that the Defendant

Province's ownership of lands,

mines, minerals and royalties

within the Plaintiffs' Territory

is subject to the Plaintiffs'

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rights of ownership and

jurisdiction pursuant to Section

109 of the Constitution Act, 1967.

8.

9.

A declaration that the Defendant

Province's jurisdiction over the

Territory, the Plaintiffs and

members of the Houses represented

by the Plaintiffs is subject to

the Plaintiffs' right to ownership

and jurisdiction.

A declaration that the Defendant

Province is not entitled to

interfere with the aboriginal

rights and title, ownership and

jurisdiction of the Plaintiffs.

10. A declaration that the Defendant

Province cannot appropriate any

part of the Territory through

grants, licences, leases, permits

or in any other manner whatsoever.

11. A declaration that the Defendant

Province cannot issue or renew

grants, licences, leases or

permits authorizing the use of any

resources within the territory of

the Plaintiffs by the Defendant

Province, its agents or by third

parties without the consent of the

Plaintiffs.

III. DAMAGES

12. A declaration that the Plaintiffs

are entitled to damages from the

Defendant Province for the

wrongful appropriation and use of

the Territory by the Defendant

Province or by its servants,

agents or contractors without the

Plaintiffs' consent.

Part 7. Some Comments on Evidence

108

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IV. TRANSITIONAL RELIEF

13. A lis pendens against the

Defendant Province over the

Territory described in Schedule

'A' and delineated in the map

which is set out in Schedule 'B'.

14. A declaration that this Honourable

Court shall retain jurisdiction to

resolve all outstanding disputes

between the parties as to the

implementation of the Declarations

and Orders of this Honourable

Court.

15. The costs of this action.

16. Such further and other relief as

to this Court may seem just.

2. The Plaintiffs' Claims against Canada

The plaintiffs did not include the Attorney General of

Canada as a defendant in this action. He was added as a

defendant on the application of the province largely for the

purpose of binding Canada to the result of this trial, possibly

for the purposes of proceedings in another court.

At the time of the argument in February, 1988, the

plaintiffs asserted the paramountcy of their aboriginal

Part 7. Some Comments on Evidence

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interests over the laws of Canada. After hearing argument on

the pleadings I said this:

"But I agree with Mr. Macaulay that the

Statement of Claim does not sufficiently

allege the "paramountcy" of the plaintiffs'

alleged rights over federal legislation such

as that relating to fisheries and

transportation. I do not think, in the

present state of the pleadings, that the

plaintiffs, even if entirely successful

against the province, would be entitled to a

Judgment that would not be subject to

federal legislation relating to such matters

as fisheries, railways, airports, and other

activities authorized by federal

legislation."

No amendment was sought on this question, and no arguments

was made by the plaintiffs to the contrary. I now confirm that,

on the pleadings and the applicable law, the plaintiffs are not

entitled to any relief against Canada and the action against

Canada must be dismissed.

3. The Counterclaim of the Province

Without pleading any facts additional to those alleged in

its Statement of Defence, the province claims a declaration only

against the plaintiffs, and not against Canada. It claims:

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"1. A declaration that the Plaintiffs have no right, title

or interest in and to the Claim Area, and the resources

thereon, thereunder or thereover;

2.

Alternatively, a declaration that the Plaintiffs'

cause of action, if any in respect of their alleged

aboriginal title, right or interest in and to the Claim

Area and the resources thereof, thereunder or thereover is

for compensation from Her Majesty the Queen in right of

Canada."

I shall discuss this Counter Claim further in due course.

Part 7. Some Comments on Evidence

111

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PART 7. SOME COMMENTS ON EVIDENCE

I have said this case is largely about land. The

plaintiffs seek a declaration of title or ownership,

jurisdiction and other aboriginal rights. The title they seek

is not the conventional fee simple well known and understood in

our law. While admitting that the underlying, or allodial or

radical title is in the Crown, the plaintiffs say their

aboriginal title is a burden on the title of the Crown which

entitles them, at least with respect to unalienated land (and

compensation for everything else), to ownership and possession

of, and jurisdiction over the territory. This is said to arise

from continuous and uninterrupted occupation and possession of

the territory by the plaintiffs and their ancestors in an

organized society. They say this has continued to the present

from time immemorial, or for an indefinite, long time prior to

their first contact with members of a European or any foreign

civilization, and prior to the assertion of Sovereignty by the

Crown.

Part 7. Some Comments on Evidence

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The plaintiffs seek to establish their case in a number of

ways.

Firstly, they say their ancestors, in an organized society,

have occupied, used and managed the territory from time

immemorial and certainly before contact with European

civilizations.

Secondly, they say they are presently an organized society

with common languages, traditions and cultures similar in all

important respects with the kind of social organization enjoyed

by their ancestors.

Thirdly, the plaintiffs say the proof of the connection

between pre-contact and present Gitksan and Wet'suwet'en

societies is found in their languages, genealogies, customs and

oral histories. They say these features establish the

continuation of their particular and unique societies forward in

time from pre-contact to present, and backward in time from the

present to the pre-contact era.

They say their oral histories have other uses and that

their case does not depend merely upon the literal accuracy of

these histories to establish a connection with past societies.

Part 7. Some Comments on Evidence

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The oral histories are also relied upon by social and other

scientists as evidence supporting and confirming their theories

or findings which indicate a genuine connection between present

and past aboriginals, and in this way the plaintiffs seek to tie

the two societies together. These sciences include archaeology,

linguistics, anthropology, history, and many other disciplines.

There is another dimension to the oral histories relied

upon by the plaintiffs and that is the Gitksan adaawk and the

Wet'suwet'en kungax. In one sense these adaawk and kungax are a

special kind of oral history, but the plaintiffs say they are

more than that. They are a sacred "official" litany, or

history, or recital of the most important laws, history,

traditions and

traditional territory of a House which is repeated, performed

and authenticated at important feasts. It is an official

statement of the sacred culture of a House. As it is said to

contain a statement or description of the territory of a House,

the plaintiffs contend that it constitutes an admissible

declaration of title and an exception to the Hearsay Rule.

There is a distinction to be kept in mind between an

adaawk, which is the "official" or sacred statement of the

Part 7. Some Comments on Evidence

114

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history, law, customs, and traditional territory of a house,

with what Mrs. MacKenzie called the "antimahlaswx" or collection

of stories or folklore of a house. I have great difficulty, as

did many witnesses, separating histories and declarations of

aboriginal interests from stories.

At an early stage of the trial I expressed the hope that I

could make a convenient but simplistic distinction between what

European-based culture would call mythology and "real" matters.

This was because some Indian witnesses included some material

which might be classified as mythology within their adaawk,

possibly because some of these events are believed to have

occurred within territories they claim, and possibly because

their Houses have adopted crests inspired by these events or

beliefs which are integrated into their adaawk. I have

concluded that it would be overly simplistic to attempt such a

distinction, and I must accordingly reject mythology as a valid

distinction between what is and what is not part of an adaawk or

kungax.

This distinction between the authenticity of an adaawk and

matters of folklore has not, so far as I can ascertain, been

recognized or applied by any of the scientists who gave evidence

at trial. The late Marius Barbeau, who was described as an

Part 7. Some Comments on Evidence

115

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excellent collector and historian of aboriginal culture, and

whose work is highly regarded, has produced useful collections

of adaawk and oral histories which include much "supernatural"

material.

The Wet'suwet'en kungax seems to be quite different from an

adaawk. A kungax is more in the nature of a song or "trail of

songs" or dance or performance which is intended to represent

the special authority and responsibilities of a chief, and the

connection of the House with its territory.

Later in this judgment I shall deal specifically with a

number of classes of evidence (including adaawk and kungax),

upon which the plaintiffs rely for the proof of this connection

with the past.

and kungax.

As I have said, many social and other scientists whose

evidence was adduced by the plaintiffs, have relied in part upon

oral histories, adaawk and kungax to buttress the sparse

evidence which exists about the social order and identity of the

occupants of the territory prior to and in the early period

after contact. Again, I have found this kind of evidence

Part 7. Some Comments on Evidence

116

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admissible but subject to considerations of weight.

In an earlier judgment in this case, reported incorrectly

as Uuke v. R. (1987) 15 B.C.L.R. (2nd) 326 (B.C.S.C.), I

expressed some views I then entertained about the admissibility

of out of court declarations of deceased persons about the

ownership and use of the territory. I admitted most of such

evidence, subject to objection and weight, and I also mentioned

that I would try to deal more specifically with such matters at

the end of the trial. As so often happens in such

circumstances, most of these evidence questions have been

subsumed into larger and more difficult issues. Subject to what

follows in this judgement, I see no reason to change the views I

stated in 1987.

I remain persuaded that oral declarations of a reputation

of ownership made by deceased persons, whether included in an

adaawk or otherwise, is admissible on a question of an interest

related to land. But I would be going outside the confines of

the law if I were to accept, as proof of ownership or title,

evidence of statements:

(a) made or imputed to deceased

Part 7. Some Comments on Evidence

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persons who purported to pronounce upon this

question of title or ownership instead of

giving evidence of a reputation of

ownership; or

(b) made by presently living persons

either in the form of a pronouncement or of

a reputation.

There is a great deal of evidence which falls into each of

these categories and I cannot possibly identify it all.

As

best I can, I must decide these questions relying only upon

admissible evidence. Probably because of my ruling on

admissibility and weight, counsel in argument did not

specifically direct my attention to many such matters.

I also believe I may rely upon oral, historical and other

cultural "material" including treatises in accordance with the

judgments I delivered in this case, reported as Delgamuukw

(Muldoe) v. A.G. for B.C., (1989) 38 B.C.L.R. (2nd) 165 and 176

from which I see no reason to depart.

Before and since those judgments, however, I have heard the

evidence of numerous scientists who, for the purpose of their

disciplines, have relied to some extent upon oral "material" (a

neutral word) even though some of it has now been reduced to

writing by anthropologists and others which adds still another

Part 7. Some Comments on Evidence

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dimension of difficulty to the weighing process. As an example,

the plaintiffs' archaeologist Sylvia Albright relied to some

extent upon on what she called ethnoarchaeology. The adaawk of

the "Seeley Lake Medeek," which I shall describe later, is an

example of the plaintiff's attempt to connect a scientific

finding to a pre-historic event.

There are differences of academic opinion on many of theses

questions. For example, Phillip Drucker in Cultures of the

North Pacific Coast, 1955, believes oral histories on the north

coast are usually correct, while Dr. Bruce Trigger in Time and

Traditions, Essays in Archaeological Interpretation says, at p.

126:

"Another source of information about

the past is the stories living peoples tell

about their own history. This is often

referred to as oral tradition (Vansina 1965:

1-18; McCall 1964: 37-61). Such traditions

frequently reflect contemporary social and

political conditions as much as they do

historical reality and even in cultures

where there is a strong desire to preserve

their integrity, such stories unconsciously

may be reworked from generation to

generation. The oral traditions of

Polynesia, which were famous for the

fidelity with which they were supposed to be

transmitted, are now known to be out of line

with archaeological and other sorts of

evidence. (Suggs 1960: 47-56). Hence it is

no wonder that many anthropologists doubt

the historical reliability of all oral

Part 7. Some Comments on Evidence

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traditions. Murdock (1959a: 43) has claimed

(without documentation) that African oral

traditions concerning the origins of a tribe

that are over a century old are correct less

than 25 percent of the time.

The scientific study of oral traditions is

obviously an exacting task and requires a

careful evaluation of the reliability of

sources, the identification of stereotyped

motifs that may distort historical evidence,

the checking of the stories told by one

group against comparable information

supplied by others, and, finally, the

checking of these stories against

independent sources of information such as

archaeological evidence.

Used in this way, oral traditions may supply

valuable information about the not too

distant past. Used uncritically, however,

they can be a source of much confusion and

misunderstanding in prehistoric studies.

(my emphasis)

The small populations of tribal

societies, and their general lack of concern

with the inheritance of private property,

tend not to produce the systematic

variations in oral traditions that are

useful for evaluating their historical

authenticity.

The recording of oral traditions as

well may be suspect. The few committed to

writing in eastern Canada prior to the late

nineteenth century were done in an extremely

cursory fashion and from poorly identified

sources (Trigger 1972: 71-83). At least some

of these oral traditions appear to have been

heavily influenced by White historical

narratives, missionary propaganda, and even

anthropological publications (Hamell 1982:

45). They also frequently reflect knowledge

of periods later than those to which they

are alleged to refer. In general, some kind

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120

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of independent verification is required

before such traditions can be accepted as

accurate historical accounts.

There have been many doubts expressed as to

the archaeologist's abilities to attribute

ethnic identity to archaeological

assemblages. Some of these doubts have been

aired in connection with the problem of

identifying Plateau Athapaskans. For

example, Fladmark has stated:

The "Athapaskan

Question" in the end, is the

question whether archaeologists

can distinguish any historic

ethnolinguistic group in

millennia-old simple stone tool

kits...the answer must be "no" at

least until we seriously reassess

our methods and realistically

evaluate the true resolving power

of archaeological data. (l979:

253-254).

In a similar vein, Donahue remarked on the

state of research into antiquity of

Athapaskan cultures on the Plateau '...the

isolation of historic material culture sets

by language group would be extremely

difficult if not actually impossible.'

(1977: 108)

This paper is an attempt to show that with

continued refinement of our analytic

methods, archaeological ethnicity can be

realized."

Notwithstanding these warnings, many writers seem to

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believe that, with proper care and much verification,

ethnoarchaeology, for example, may well provide useful

information "to fill in the gaps" left at the end of a purely

scientific investigation.

I am disposed, with considerable hesitation, and with due

allowances for weight, to recognize that culture, in a generic

sense, may have a role in the formulation of opinions in these

sciences. In a case such as this, however, where the plaintiffs

and their ancestors are the only sources of these histories, the

Court may not be the best forum for resolving such difficult and

controversial academic questions.

One cannot, however,

disregard the "indianness" of these people whose culture seems

to pervade everything in which they are involved. I have no

doubt they are truly distinctive people with many unique

qualities.

For example they have an unwritten history which they

believe is literally true both in its origins and in its

details. I believe the plaintiffs have a romantic view of their

history which leads them to believe their remote ancestors were

always in specific parts of the territory, in perfect harmony

with natural forces, actually doing what the plaintiffs remember

Part 7. Some Comments on Evidence

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their immediate ancestors were doing in the early years of this

century. They believe the lands their grandparents used have

been used by their ancestors from the beginning of time. They

believe their special relationship with land has always been

enlightened. And they believe Indian social organization in the

territory has always been more or less as it is now.

Indian culture also pervades the evidence at this trial for

nearly every word of testimony, given by expert and lay

witnesses, has both a factual and a cultural perspective. For

example, when a witness described how his grandparents were

dispossessed by pre-emptors in the early years of this century

from land they were using in the Bulkley valley they described a

specific event which is relatively easy to analyze. I can

regret the occurrence, but I must categorize it as a wrong not

actionable in a communal claim. I am left to consider what

weight the event deserves on issues such as use and occupancy of

land and, possibly, internal boundaries and other issues. I can

separate this event into different legal issues. To the

plaintiffs it was an indivisible wrong which cries out for

redress.

When I come to consider events long past, I am driven to

Part 7. Some Comments on Evidence

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conclude, on all the evidence, that much of the plaintiffs'

historical evidence is not literally true. For example, I do

not accept the proposition that these peoples have been present

on this land from the beginning of time. Serious questions

arise about many of the matters about which the witnesses have

testified and I must assess the totality of the evidence in

accordance with legal, not cultural principles.

I am satisfied that the lay witnesses honestly believed

everything they said was true and accurate. It was obvious to

me, however, that very often they were recounting matters of

faith which have become fact to them. If I do not accept their

evidence it will seldom be because I think they are untruthful,

but rather because I have a different view of what is fact and

what is belief.

As with so many cases, this one sorts itself out in such a

way that the legal issues fall to be decided not on the validity

of the plaintiffs' beliefs but rather by the application of

legal principles to what they actually say within the totality

of all the evidence. I do not find it necessary to reflect in

any way upon the bona fides of the plaintiffs.

This does not mean that I accept all of their evidence. As

Part 7. Some Comments on Evidence

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I shall endeavour to explain, much evidence must be discarded or

discounted not because the witnesses are not decent, truthful

persons but because their evidence fails to meet certain

standards prescribed by law. For example, the fact that the

plaintiffs' claim has been so much discussed for so many years,

and the further fact that so much of the evidence was assembled

communally in anticipation of litigation, or even during this

litigation, is a fact which must be taken into account.

Further, when so much evidence is collected as in this case,

there are bound to be contradictions and inconsistencies which

also must be taken into consideration. In this case, the legal

principle that a single inconsistent fact may destroy an

hypothesis must not be given undue weight and I have attempted

not to be swayed by minor inconsistencies. Unfortunately,

however, as will appear, some of these inconsistencies, alone or

in the context of all of the evidence, are too great to be

disregarded.

As will be shown, I do not accept that the immediate and

more remote ancestors of some of the plaintiffs were eking out

an aboriginal life in all parts of the territory for a long,

long time. In fact, I am not able to find that ancestors of the

plaintiffs were using all of the territory for the length of

Part 7. Some Comments on Evidence

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time required for the creation of aboriginal rights, and I shall

give my reasons in due course.

I must briefly discuss the evidence of Drs. Daly and Mills

and Mr. Brody because of the importance attached to it by the

plaintiffs.

These anthropologists studied the Gitksan and

Wet'suwet'en people intensively. Drs. Daly and Mills actually

lived with the Gitksan and Wet'suwet'en for 2 and 3 years

respectively after the commencement of this action. Their type

of study is called participant observation but the evidence

shows they dealt almost exclusively with chiefs which, in my

view, is fatal to the credibility and reliability of their

conclusions.

This evidence was seriously attacked on various grounds,

particularly that they were too closely associated with the

plaintiffs after the commencement of litigation, that Dr. Daly

produced no notes of his "observations," that Dr. Mills was more

interested in reincarnation than Wet'suwet'en culture, and that

they did not conduct their investigations in accordance with

accepted scientific practices.

With regard to Dr. Daly, he made it abundantly plain that

Part 7. Some Comments on Evidence

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he was very much on the side of the plaintiffs. He was, in

fact, more an advocate than a witness. The reason for this is

perhaps found in the Statement of Ethics of the American

Anthropological Association which Dr. Daly cites at p. 29 of his

report, as follows:

"Section 1. Relations with those

studied; In research, an anthropologist's

paramount responsibility is to those he

studies. When there is a conflict of

interest, these individuals must come first.

The anthropologist must do everything within

his power to protect their physical, social

and psychological welfare and to honour

their dignity and privacy.

Honestly held biases were not uncommon with many of the

professional witnesses which is not unusual in litigation. I do

not think it is necessary to analyze the evidence of all the

witnesses, and I shall not even mention some of them. As Dr.

Daly was an important witness, however, I am constrained to say,

with respect, that I have considerable difficulty with his

evidence for a number of reasons. Throughout his long report,

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691 pages, about which he gave evidence for about 10 days, he

seems to be describing a society I do not recognize from the

evidence of the lay witnesses, In fact, I felt constrained to

comment during his evidence that one would almost think the

motor vehicle had not been invented. Many of his propositions

are based on facts not proven in evidence.

First, he placed far more weight on continuing aboriginal

activities than I would from the evidence although he recognized

the substantial participation of the Indians in the cash

economy. For example, at p. 95 he mentioned that Gitksan and

Wet'suwet'en persons regarded their land as "their food box and

their treasury" and young persons going hunting often say "we

are going to the Indian supermarket, to our land," yet many

witnesses said the young people are not interested in aboriginal

activities. At on p. 118 he recognized "Country food may not at

all times be a major source of food for all families." I find

it is seldom a major source.

Secondly, at p. 145 Dr. Daly said the House group, through

its chief or senior matrons "ensure[s] that a substantial

portion of House members' income from small enterprises and wage

labour is devoted to the proper conduct of House affairs." With

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respect, I think this confuses the practice of chiefs making

substantial contributions to feasts in which they are

particularly interested with the day to day life of these

people. While I assume they regularly take part, it was not

proven the non-chiefs, of which only 1 or 2 gave evidence, are

supporting the feast as Dr. Daly suggests. The general practice

of which he spoke was not proven at trial.

Thirdly, on p. 139 Dr. Daly said:

"in economic terms the Houses own the

rights to the labour of their sons and

daughters, and of their daughters'

offspring, and they of course own lands and

river sites as well.

This was not proven at trial and I have no reason to

believe it is true.

Fourthly, I found Dr. Daly's report exceedingly difficult

to understand. It is highly theoretical and, I think, detached

from what happens, "on the ground." There are many passages

which I do not understand, such as this one from p. 247:

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The world view of those living close to

nature in a non-centralized, kinship

society, reflect the basic reciprocal

principle which governs day-to-day social

relations in the society itself. On one

hand, nature's life force is seen to nurture

the people; on the other, nature exacts its

price from the people, its life force

feeding in turn, upon the people and their

society, consuming them, causing death so as

to nurture rebirth. The House group's

proprietary representative, its leader or

chief, exercises a reciprocal stewardship

vis-a-vis the land, and at the same time, a

proprietary right toward this land vis-a-vis

the claims of other groups or nations. On

one hand, the land is dealt with as a

property object between two potentially

competitive groups. As such it is subject

to ownership. On the other hand, the land

is non-property when it is viewed in terms

of the people's relationship to the life

force in the natural world.

Most significantly, Dr. Daly lived with these people for 2

years, while this litigation was under way making observations

on their activities, listening, and, I think, accepting

everything they said, without keeping any notes. Further, he

was not aware of a comprehensive survey of over 1,000 persons

conducted by the Tribal Council in 1979 which achieved an 80%

return. This survey disclosed, for example, that 32% of the

sample attended no feasts, and only 29.6% and 8.7% engaged in

hunting and trapping respectively.

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A question arose about the admissibility of this survey. I

doubt if the plaintiff's could have adduced it without proving

it was conducted scientifically, but it was admissible in cross-

examination particularly for the purpose of testing the

sufficiency of an expert's data base.

Apart from admissibility as evidence of its contents (for I

have no way of knowing if the survey is accurate or

representative, although some of its results tend to confirm the

view I obtained of present Indian life), its significance is

more in the fact that it was kept from Dr. Daly. Many of his

views of Indian life may have been markedly different if he had

access to this substantial body of information in the possession

of his clients. For these reasons, I place little reliance on

Dr. Daly's report or evidence. This is unfortunate because he is

clearly a well qualified, highly intelligent anthropologist. It

is always unfortunate when experts become too close to their

clients, especially during litigation.

Dr. Mills, the plaintiffs' other principal anthropologist,

also showed she was very much on the side of the plaintiffs.

She has almost completely changed her opinion from that

contained in her June 1986 draft where she attributed almost all

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Wet'suwet'en social organization, including the kungax, to

borrowings from the Gitksan or other coastal Indians. This is a

startling departure from a large body of professional opinion on

the part of a witness closely associated with the beneficiaries

of her new opinion.

Again, however, apart from urging almost total acceptance

of all Gitksan and Wet'suwet'en cultural values, the

anthropologists add little to the important questions that must

be decided in this case. This is because, as already mentioned,

I am able to make the required important findings about the

history of these people, sufficient for this case, without this

evidence.

Lastly, I wish to mention the historians. Generally

speaking, I accept just about everything they put before me

because they were largely collectors of archival, historical

documents. In most cases they provided much useful information

with minimal editorial comment. Their marvellous collections

largely spoke for themselves. Each side was able to point out

omissions in the collections advanced on behalf of others but

nothing turns on that. I do not accept that part of the evidence

of Mr. Williams which suggests legal consequences from Gitksan

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or Wet'suwet'en compliance with Canadian law.

The exception to the above was Dr. Farley who was not just

a collector and explainer of history by the use of interesting

maps. He also offered numerous useful opinions which I

generally accept although I do not find it necessary to express

an opinion on his conclusions about which east-coast rivers

"fall into the sea."

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PART 8. THE HISTORY OF THE GITSKAN AND WET'SUWET'EN PEOPLE

1.

General

In this section I shall endeavour compendiously to discuss

a number of issues that took a great deal of time at trial. At

the end of this section I shall state an important finding which

will permit me then to confront the legal issues which arise in

this case.

I shall first discuss some further evidence problems, and

then examine the different ways by which the plaintiffs have

sought to prove their history, and their connections with the

territory.

The history of the association of these people with the

territory is a crucial part of their case and its proof is

replete with difficulties. The plaintiffs undertook to prove

amongst other things, the state, 200 years ago, of two separate

people who had different, wholly unwritten languages and

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cultures, who kept no records, and who lived in adjacent parts

of a vast, remote and virtually inaccessible territory. They

must also prove the then and continuing use by these peoples of

the lands they claim (if such was the case), and they must do

all this within the laws of evidence which apply in this

province.

The plaintiffs began by describing the present social

organization of the Gitksan and Wet'suwet'en which I have

already briefly mentioned, and their attachment to the lands

they claim. To this end they first called a number of senior

chiefs, Mrs. MacKenzie, Mrs. Johnson and Mrs. Ryan, who are

Gitksan, and then Alfred Joseph, Madeleine and Henry Alfred,

Alfred Mitchell, Dan Michael, and Sarah Leighton who are

Wet'suwet'en, and many others from both these peoples for the

purpose of attempting to establish that their present society is

a continuation of what has been in place for a long, long time.

They also gave evidence about the boundaries of the territories

they claim.

The plaintiffs also called many other interesting lay

witnesses who described much of their oral history, customs and

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traditions some of which I have already described, and they also

adduced a considerable body of scientific opinion evidence in

many disciplines.

In a nutshell, they sought first to establish both the

present social organization of the Gitksan and Wet'suwet'en;

secondly, that it exists today in the same or nearly the same

form as at the time of contact; thirdly, that at that time, and

since, the plaintiffs have used and occupied all of these

separate and remote territories for aboriginal purposes; and

fourthly, because of the way the plaintiffs have framed their

case, they undertook also to prove the boundaries of these 133

separate territories and the distinct use made of them by the

plaintiffs and their ancestors.

Their history, either as peoples, or in smaller groups, is

but a part of the plaintiffs' evidence burden, and in this

section I shall endeavour to describe the kinds of evidence

adduced by the plaintiffs. It is important to keep in mind that

evidence may fail for one or more reasons to prove very much,

but it may still contribute along with other evidence, to the

proof of all or a part of the plaintiffs' case.

I announced

early in the trial, and frequently throughout its duration, that

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I would attempt to err, if at all, on the side of admissibility,

rather than exclude anything that might be relevant.

It is not possible to consider the factual, cultural and

scientific evidence separately, although I shall attempt for

convenience to group it that way.

The role of history in this kind of case has been mentioned

by the Supreme Court of Canada in a number of cases.

In Kruger v. R. 1 (1978) 1 S.C.R. 104 Dickson J.. as he

then was, said at p. 109:

"Claims of aboriginal title are woven

with history, legend, politics and moral

obligations. If the claim of any Band in

respect of any particular land is to be

decided as a justiciable issue, and not a

political issue, it should be so considered

on the facts pertinent to that Band and to

that land, and not on any global basis."

In R. v. Simon, (1985) 24 D.L.R. (4 th) 390 (S.C.C.) the

same learned judge said that the oral history of a people based

upon successive declarations of deceased persons may be given in

evidence as a matter of admissibility, for it could not

otherwise be proven.

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In neither of these cases was the court dealing with a case

that bears any resemblance to this one, but they provide useful

indications of the approach which should be taken.

It is obvious that the basic facts of the plaintiff's

histories cannot be proven through documents or by the personal

knowledge of living witnesses. Accordingly, the plaintiffs

found it necessary to prove parts of their case indirectly by a

number of different means which necessarily involved the

reputation exception to the hearsay rule of evidence.

2.

Specific Kinds of Evidence

(a) Hearsay, and Declarations by Deceased Persons

I have already mentioned the 3 judgments I delivered in

this case during the course of this trial. I have now lived

with this case for over 3 years, during which I have had to make

a great many rulings on evidence. Those judgments and rulings

were not seriously attacked during counsel's final arguments

even though they had a great deal to say for and against the

quality and effect of the evidence which was admitted under

those rulings.

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Starting at p. 341 of my first Reasons for Judgment, I

dealt with evidence relating to English land title which I

equate for the purpose of admissibility to the kind of claim the

plaintiffs are making in this action. I concluded that out of

court declarations relating to the ownership or use of land by

living persons are not admissible, but declarations made by

deceased persons in proper circumstances giving rise to a

reputation of ownership or use could be admissible.

At p. 343 of my first reasons I said about reputation

evidence:

"...I mention this only to illustrate

the difficulty of the matter and it may be

that the only proper question to ask in

chief about these matters is along the lines

suggested by Wigmore, para 1584, 'What have

you heard old men, now deceased, say as to

the reputation on this subject." It is not

of course necessary to use that precise

language, as the law does not favour magic

words, but it is important to remember that

the question is not, 'What is the reputation

in the community?' as such a reputation may

not be based on grounds (declarations by

deceased persons) which alone make the

evidence admissible."

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With respect, it now appears to me that this is impossible

to apply strictly in the course of a long trial especially with

witnesses who are giving evidence in their second language or

through interpreters. Experience in many trials before and

during this one has convinced me that witnesses do not respond

easily to the concept of reputation evidence, and they have

great difficulty accommodating themselves to it. This is most

frequently noticed in character evidence in sentencing

proceedings where counsel is required to ask questions in terms

of reputation. Conventional wisdom leads most trial judges to

accept the answer, even if it must be discounted appropriately,

when the witness persists in giving specific examples of good

character.

I have given this question much worried thought as it is

impossible in the course of such a long trial to expect counsel

to object every time a witness gives specific rather than

general evidence from which a reputation may be inferred. In

fact, Mr. Goldie made a blanket objection to all inadmissible

hearsay of which there was, unfortunately, a great deal. It is

also too much to expect the Court, after having made a ruling,

constantly to interrupt the proper flow of the evidence to

remind counsel of the obvious.

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I have concluded with some hesitation that I should not

disregard all the viva voce evidence which fails to comply

strictly with the form of my reputation ruling, but in fairness

I cannot amend the substantive requirements of the law.

While the foregoing applies generally to the plaintiffs'

evidence regarding the ownership, occupation or use of land, it

seems to me the same also applies to proof of genealogy which is

also incapable of proof by personal knowledge. Again, properly

discounted reputation evidence must be admitted for the

plaintiffs could not otherwise embark upon the proof of their

case.

As to historical facts, there was evidence of dramatic

events such as the rock slide at Hagwilget Canyon, which I call

general history, as well as personal history. By the latter I

mean, for example, what the deceased grandparent of a witness

said about his life, or the life of his grandparents or other

identified elders in relation to a relevant fact such as the

tradition or culture of a House or people or the use and

occupation of land. These matters, it seems to me must, as a

matter of necessity, be equivalent to a declaration of land use,

and must be admissible under the rubric of reputation evidence,

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or discounted reputation evidence. This kind of evidence must,

of course, be weighed and tested for trustworthiness.

In addition, an important distinction must be recognized

between what a deceased elder said he or his elders did, and

what they believed. Only the former can have value as evidence.

There is also a distinct difference between folklore

("antimahlaswx" in Gitksan), and their laws and traditions.

Both are passed on orally from generation to generation, often

it seems, by grandmothers who tell these things to their

grandchildren often as "an everyday thing". This distinction

was recognized by the witness Mary MacKenzie who is one of the

plaintiffs' principal and most articulate and comprehensive

witnesses. In my earlier ruling I attempted to draw a

distinction between folklore and traditions, laws and histories.

Of these, folklore is clearly not admissible as proof of the

facts stated; the others may be admissible, subject to

appropriate deductions for weight whenever they meet Wigmore's

great tests of necessity and trustworthiness.

As I have said, it is difficult to treat different classes

of evidence separately, as they often overlap. I shall, however

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group them into the three classifications which I have already

mentioned, factual, cultural, and scientific.

(b)

Recollections of Aboriginal Life

The most that the lay witnesses could tell me on this

question, either in the witness box or by territorial

affidavits, related to the use of land by their families and

others within their personal knowledge, and declarations of

deceased persons. This evidence establishes, without question,

that the plaintiff's immediate ancestors, for the past 100 years

or so, having been using land in the territory for aboriginal

purposes. Beyond that, notwithstanding almost by rote

assurances that every ancestor spoke of unchanging generations

of similar use, I am not persuaded the evidence is sufficiently

precise and cogent, when weighed against the cautions of the

anthropologists, to establish specific land use, as opposed to

general land use, far enough back in time to permit the

plaintiffs to succeed on issues such as internal boundaries.

In fact, some of this evidence had an decided complexion of

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unreality about it, as if nothing has changed since before

contact. This affects the credibility of statements which were

often repeated that ancestors had been using these specific

lands from the beginning of time, or similar expression.

Aboriginal life, in my view, was far from stable and it

stretches credulity to believe that remote ancestors considered

themselves bound to specific lands.

This has continued to the present. There is no doubt, as I

have said, that many of the present male and female population

trapped and hunted for economic reasons in their youth.

However, most of them discontinued trapping years ago before or

at the time the price of furs collapsed in the 1950's, and they

have gradually moved into other segments of the cash economy

even though the price of furs has recovered. There is very

little, and decreasing, interest in pursuing these activities at

the present time.

The evidence satisfies me that most Gitksan and

Wet'suwet'en people do not now live an aboriginal life. They

have been gradually moving away from it since contact, and there

is practically no one trapping and hunting full time, although

fishing has remained an important part of their culture and

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economy. As early as the 1850's the Gitksan, who had not

previously seen a horse, quickly became adept at packing for the

construction of the Collins Overland Telegraph, for the Yukon

Telegraph, for the Omineca and Cassiar Gold Rushes, and for the

construction of the Grand Trunk Pacific Railroad in the first

decade of this century. At the same time the Indians

increasingly participated in commercial fishing at the coast,

and in the logging and lumbering industries which became the

economic mainstays of the region.

Witness after witness admitted participation in the wage or

cash economy.

Art Mathews Jr., (Tenimyget) for example, is an

enthusiastic, weekend aboriginal hunter. But at the time of

trial, he was also the head saw filer at the Westar sawmill at

Gitwangak where he had been steadily employed for 15 years, a

graduate of the B.C. Institute of Technology, a shop steward,

and a member of the Negotiating Committee of the Industrial

Woodworkers of America.

Pete Muldoe (Gitludahl) has followed a

variety of non-aboriginal vocations including logging on the

lands claimed by another chief; Joan Ryan (Hanamuxw) teaches

school in Prince Rupert; and many, many Indians and chiefs have

found seasonal or full-time employment in the forest products

and coast commercial fishing industry although unemployment

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remains a serious problem for both these peoples.

Even in their aboriginal pursuits, however, the plaintiffs

do not seem to consider themselves tied to particular

territories. I need only mention witnesses such as Pete Muldoe,

Stanley Williams and Alfred Mitchell who described hunting and

trapping, when they were young, and more recently on many, many,

different territories.

I conclude that the lay witnesses establish substantial

land dependency when the present elders were young and that by

that time families or Houses had established some traditional

associations with preferred hunting and trapping areas probably

with relation to traplines. It is reasonable to assume land

dependence was even greater in more remote times. But such

evidence does not establish the time depth or details with

specific lands beyond contact. I have no doubt such dependence

has been decreasing for many decades and there is an

understandable confusion of belief and fact on this important

issue.

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(c) Adaawk and Kungax

The witnesses say each Gitksan and Wet'suwet'en House has

an "adaawk" or "kungax" which in a very general sense might be

said to represent an unwritten collection of important history,

legend, laws, rituals and traditions of a House including a

description of its territories.

When asked to state the adaawk of her House of Gyolgyet

Mrs. MacKenzie said that it contains a description of the

territories of her house, but she added that Albert Tait, the

late Delgamuukw, knows a lot about the adaawk of her House and I

understood her to mean that he knew more about the boundaries of

her House than she did. On the other hand, she seemed familiar

with the history of her House. She related the legends of the

warrior Suuwiigos who "hundreds or thousands of years ago"

repelled an invasion or raid by the unfriendly Tsitsawit people

from the north. From the legend of Suuwiigos the House of

Gyolguyet obtained some of its crests such as the ram, the giant

man in the trees, the half-grizzly, and the image of the people

in trees reflecting on a lake.

Mrs. Johnson, another significant witness, did not have a

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clear understanding of the boundaries of her House, but she

spoke comprehensively about its legends. When asked about the

adaawk of her House of Antgulilibix she related several stories

which I would have classified generally as mythology. These

stories described supernatural grizzly bears, unseasonable

snowstorms and the migration of her people in ancient times from

Kitseguecla or Kitwanga to a clearing where there is now a

vegetable farm near Kispiox, and eventually to the Gitksan

village of Kispiox where several Gitksan Houses have been

located for many years.

Many other Gitksan witnesses spoke of the adaawk of their

Houses but in most cases the descriptions were extremely vague

and lacking in the particularity which later appeared in the

Territorial Affidavits. There were also major inconsistencies

in their evidence which will be more particularly described

later.

There was very little first hand evidence given at trial

about the kungax of the Wet'suwet'en. Mr. Joseph described it

as a song, or songs about trails between territories. It was

briefly touched upon by Madeline Alfred who referred to one

location where bears were snared "near Moricetown" but no other

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detail. In fact, there seemed to be some confusion about what a

kungax really is. I gather it is a song associated with a dance

or ceremony similar to the Gitksan nox nox performed only during

headstone and pole raising ceremonies or feasts.

Other Wet'suwet'en witnesses such as Elsie Quaw and

Florence Hall referred to the kungax during Commission or cross-

examination evidence on Territorial Affidavits.

As I have said, unwritten oral history and traditions of a

House, and the culture of a people are admissible out of

necessity as exceptions to the Hearsay Rule because they cannot

be proven in any other way. The plaintiffs assert that

references to their territory in their adaawk are powerful

evidence establishing occupation and use of land over many, many

years. The weight to be given to this kind of evidence depends,

of course, upon its trustworthiness. The plaintiffs argue that

adaawk or kungax are particularly trustworthy because of their

antiquity and because they are authenticated by public statement

and restatement in accordance with the practice that what is

stated at a feast must be challenged then and there, at once, or

not at all.

The difficulty with this kind of evidence is the fact that

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the defendants, by cross-examination, have raised serious

questions about many of the basics tenants of Gitksan and

Wet'suwet'en life and history and about the authenticity of the

adaawk and kungax. In fact, as the trial progressed I noticed

the plaintiffs seemed to place less and less importance on

adaawk and kungax, possibly because they are highly equivocal,

or perhaps because the plaintiffs focused more on feasting and

scientific evidence.

Except in a very few cases, the totality of the evidence

raises serious doubts about the reliability of the adaawk and

kungax as evidence of detailed history, or land ownership, use

or occupation. I say this reluctantly, without intending any

affront to the beliefs of these peoples, but I am reminded by

many learned authors to be cautious. Trigger warns that tribal

societies have little interest in conserving an accurate

knowledge of the past over long periods of time. Drs. Bishop

and Ray, historical geographers, said in Ex. 1076:

"Even when employed carefully, memory

ethnography can only provide totally

accurate information for relatively short

time spans, usually one hundred years at the

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very most."

Admissibility and weight of evidence are two completely

different concepts. While I have not been troubled by the

former, the doubts I have about the latter preclude me from

treating the adaawk and kungax as direct evidence of facts in

issue in this case except in a few cases where they could

constitute confirmatory proof of early presence in the

territory. My reasons are principally threefold.

First, I am far from satisfied that there is any consistent

practice among the Gitksan and Wet'suwet'en Houses about these

matters. The early witnesses suggested that the adaawk are well

formulated and the contents constantly sifted and verified. I

am not persuaded that this is so. There is evidence that an

adaawk is seldom told at feasts; that some Chiefs never tell

their adaawk; that some Chiefs never tell them outside their

Houses; that there is little likelihood of dissent; and that the

verifying group is so small that they cannot safely be regarded

as expressing the reputation of even the indian community, let

alone the larger community whose opportunity to dispute

territorial claims would be essential to weight.

Secondly, the adaawk are seriously lacking in detail about

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the specific lands to which they are said to relate. In this

case, as I shall have occasion to mention again, the plaintiffs

are seeking exclusive rights to specific lands. Specificity far

in excess of what the adaawk provide would be required to

support an interest in land. Many adaawk and kungax could

relate to any number of locations.

Thirdly, the plaintiffs sought to authenticate their adaawk

by reference to the work of authors such as Will Robinson's Men

of Medeek (as told by Walter Wright), Parts I and II, and

several works of the noted anthropologist Marius Barbeau

including Temlarh'am: The Land of Plenty of the North Pacific

Coast and Raven-Clan Outlaws on the North Pacific Coast, and The

Gwenhoot of Alaska: In Search of a Bounteous Land. Many of

these adaawk do not relate to the territory but they demonstrate

the weakness of this kind of evidence.

These adaawk are sprinkled with historical references

making them suspect as trustworthy evidence of pre-contact

history. They refer to such matters as guns, moose, The

Hudson's Bay Company and other historic items. Rather than

quote from these references I have added as Schedule "3" a

critique prepared by counsel for the province and included in

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their Outline of Argument. Many of these adaawk relate to areas

and people from outside the territory but they are a part of a

body of evidence upon which the plaintiffs rely. The

collections demonstrate to my satisfaction that many adaawk are

of dubious value as detailed proof of specific events (or

locations) which are believed to have occurred before contact.

The same applies to the kungax of the Wet'suwet'en.

This in no way reflects upon adaawk and kungax for the

spiritual use or value they have to Gitksan and Wet'suwet'en

people. I do not purport to pass on that question in any way.

All I say is that I do not find them helpful as evidence of use

of specific territories at particular times in the past,

Fortunately, as will be seen, it is not necessary to rely upon

adaawk and kungax in order to find that some ancestors of some

of the plaintiffs have been present in the territory for a very

long time.

(d) Archaeological Evidence

The plaintiffs also rely upon archaeological evidence to

establish their long time occupation of the territory. I do not

find it necessary to describe this evidence in detail as it can

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conveniently be summarized.

There is no doubt, in my view, that there has been human

habitation at locations on the lower and middle Skeena River

region extending at least from Prince Rupert harbour in the west

to Hagwilget Canyon, and at Moricetown, for at least 3,000 years

or more. This has been established by the findings and

conclusions of several reputable archaeologists. Ms. Albright,

an archaeologist employed by the plaintiffs also described

mostly undated findings at Gitanka'at, Hagwilget, Moricetown,

Kisgegas and Gitangasx, but they consist largely of cache pits

and house remains some of which are just as likely of historic

rather than pre or proto-historic origin. There is also the

great fortress, Ta'otsip, at Kitwangak about a mile from the

Skeena. Its location and fairly recent dating (1700's) adds

little to what seems already recognized.

The difficulty from the plaintiffs' point of view, is that

none of this evidence, except the Seeley Lake event which I

shall describe in a moment, relates distinctively to the

plaintiffs. Any aboriginal people could have created these

remains. One of the notable gaps in the plaintiffs' case is the

absence of any significant archaeological findings at the

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believed sites of either Temlaxam, or Dizkle which the Gitksan

and Wet'suwet'en respectively believe were the sites of their

most important ancestral villages and which are frequently

mentioned in adaawk and kungax.

In fact, there is no evidence of any archaeological

findings away from the Skeena anywhere in the Gitksan area

except at Hagwilget which is on the Bulkley River just a few

miles from its confluence with the Skeena. The only findings in

Wet'suwet'en country are at Moricetown which is situated on the

Bulkley River.

Sprinkled throughout the evidence are indications that

there has been considerable mobility among all the aboriginal

peoples of the north-west, and, of course, the Wet'suwet'en are

almost indistinguishable from the Babine. The archaeological

and anthropological evidence confirms this. For example, the

archaeologist Dr. George MacDonald, after considering the

archaeological evidence at locations such as Prince Rupert

Harbour, Kitselas Canyon, Kitwanga and Hagwilget, concluded in

his Epic of Necht, (Ex. 847, Tab 19 pp. 79-80) that a period of

relative stability prevailed on the north-west coast and

interior from the first millennia B.C. which lasted until the

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early 1700's. Dr. MacDonald says: "By that time there is

evidence for a widespread destabilization of populations

throughout much of the north-west coast." He goes on to

describe how warfare became common, resulting in part from the

desire of some tribes, particularly the Haida and Tsimshian, to

control the spread of the new trade goods that were starting to

"filter through from Siberia."

Warfare was by no means confined to the coast. MacDonald

mentions a struggle to control trade between the Chilcotin and

the Carrier, and trader Brown mentions a Carrier raid as far

east as Fort George in the 1820's.

With warfare came slavery and continued dislocation during

which trade ties were developed, often with the Gitksan acting

as middle persons between the aggressive Tsimshian who had the

easiest access to trade goods at the coast. It seems common

ground that Tsimshian traders continued to be a significant

force in the lower and middle Skeena well into the middle of the

last century. Reputable scholars such as Dyen and Aberle have

concluded in Lexical Reconstruction: The case of the Proto-

Athapaskan Kinship System:

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"Such an impact from the Northwest

Coast could have resulted from trading

relationships and inter-marriage predating

the fur trade, but the relative recency of

these innovations may indicate that the

impact of the Northwest Coast was more

recent and resulted from the fur trade,

which impelled the Northwest Coast tribes to

strengthen ties with the interior and in

some instances to expand into the interior."

There is other evidence. For example, it was reported in

historic times that a majority of the inhabitants of the Gitksan

village of Gitseguecla were Wet'suwet'en, and there are Babine

and Cheslatta Indian Reserves within the territory claimed by

the Wet'suwet'en.

There is convincing evidence of a not very gradual movement

of aboriginal people out of the distant parts of the territory

towards the larger villages in the main river corridors. I have

already mentioned Mrs. MacKenzie, who said the history of her

House, as it was taught to her by her ancestors, was that they

originally lived at the "wild rice" village of Gitangasx on the

upper Skeena which is now deserted, and that they migrated

"hundreds or thousands of years ago" to Kuldo on the middle

Skeena (also now deserted) and then, many, many years ago they

moved further south to Kispiox.

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Loring, the Indian Agent at Hazelton from 1890 to 1920,

reported in 1890 that Ksun, about 30 miles up river from

Hazelton, was the principal fishing village of the Gitksan on

the Skeena yet Ksun was not even mentioned as a village site in

the plaintiffs evidence.

There is also evidence of movement of Gitksan persons to

live with the Nishga on the Nass, and I have no doubt this kind

of migration was in both directions.

More significantly, independent archaeological evidence

suggests the Hagwilget Canyon site, in Gitksan country, has a

curious history. Dr. Kenneth Ames identified 3 different

archaeological zones. The first indicates relatively intense

use for a period ending between 4,000 and 3500 B.P.; the second

zone

indicates light and sporadic use probably limited to fishing

which continued until 1820 A.D. when, Dr. Ames says:

"...the locality was given or loaned by

the Gitksan to the Carrier, (as the

Wet'suwet'en were still called when Ames

wrote in the 1970's). The site has been

used since as a village and most recently as

a fishing locality by the Hagwilget

Carrier."

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The reason for this was that in 1820 a rock slide (Rocher

de Boule) in the Hagwilget Canyon blocked access of spawning

salmon into the Bulkley River depriving the "Carrier" Indians at

Moricetown of their usual source of food. As a consequence they

were invited or permitted by the Gitksan to occupy the canyon

site at Hagwilget, only few miles from the forks with the Skeena

and it has remained a Wet'suwet'en village ever since.

In my view, the archaeological evidence establishes early

human habitation at some of these sites, but not necessarily

occupation by Gitksan or Wet'suwet'en ancestors of the

plaintiffs. It is highly significant that there is no physical

evidence supporting the plaintiffs claims at other than a few

Skeena village sites and at Hagwilget and Moricetown Canyons.

Moreover, much of this evidence is highly equivocal with

findings of white man's garbage mixed with possible

archaeological features, and similar findings of both

kinds have been found at many locations throughout the region

outside the territory.

The archaeological evidence is helpful to the plaintiffs

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because it establishes human habitation at a few locations along

the Skeena and at two locations on the Bulkley for a long, long

time before the date of contact. However, such evidence is not

directly connected to the ancestors of the plaintiffs. The

absence of any significant archaeological findings at the

supposed sites of Temlaxam and Dizkle casts doubt upon the

authenticity of some of the adaawk and kungax, and upon the

migration theory of Ms. Marsden which I shall discuss shortly.

(e) The Seeley Lake Medeek

In some of the Gitksan adaawk there are accounts of a

supernatural event which is said to have occurred at Seeley

Lake, which is on the highway side of the Skeena River a few

kilometres down river from present day Hazelton, and about 2

kilometres from the river. This lake is across the Skeena from

one of the suggested sites of the unproven ancestral Gitksan

village of Temlaxam.

This event was described by the witness Mary Johnson during

her evidence about the adaawk of her house. This is what Mrs.

Johnson said at trial.

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"A: After all the fishing is finished and all the

hunting for -- for mountain goats and groundhogs and

the mountain and all the berry picking is finished,

then they got nothing to do, so the maidens would go

and make the camp at the lake, at the foot of

Stekyooden, and they caught some grouse.

THE COURT: At the foot of which?

MR. GRANT: Stekyooden, number 29 on the list, My

Lord, the

list provided today.

THE COURT: Yes.

MR. GRANT:

Q

And I don't know if -- I was watching the

reporter but the word she said was "maidens". I don't

know if you caught that, it wasn't a Gitksan. You

were saying the foot of Stekyooden?

A

They -- as they were caught -- after they were

caught many trouts, they cut out the back bone of the

skin, and tails are still on the back bone. And

as they was

of the people

staying there, they learned the dances

and all the songs, and the way they

were -- they move

time, one young lady

when they were dancing. So one

cut one of these back bone

and put it on her head as a

dancing. And she would happen to be

decoration while

near the --

near the lake, and she look at herself at

of the lake, and she saw it was the bone

really, really beautiful and why she dances

the edge

looks

gracefully. So she ran and told the others what she

have found, and show them. Then they all got back

bones and decorated their heads with it and some of

the people used to come over and watch them and they

didn't put a stop to it, and they smiled at what's

going on. So after they all went home when it's time

to go home, the people of T'am Lax amit heard a

terrible noise, and they --

Q

A

Can I stop you a moment. You said they went home?

Yeah.

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Mary Johnson (for Plaintiffs)

In chief by Mr. Grant

Q

Is that -- they returned from the lake to T'am Lax

amit?

A

Yeah. They left the lake and the people watched

where the noise comes from, and they've seen some

great big trees were throwing about the top of the

rest of the tall trees, and they just stood there

wondering what happened, until it comes -- there is a

little stream that runs from the lake and goes into

the Skeena

followed the

trees. And finally

River, and that's -- and this thing

little stream, tramping down the

they see this great huge bear,

grizzly bear that they

have never seen before. And

the chiefs sent messengers through the village to --

after warriors, to have the warriors ready, which they

did. And not long after the messenger went out, all

the warriors came out with their spears and arrows and

bow and arrow, and hammers that are made with stone,

all those from weapons that strong young men use, they

all come out bravely to meet this great grizzly bear.

And he gets to the water and swam across and -- and

they went in front, they all went in front of him, but

he is -- he is a supernatural grizzly bear, they call

him Mediik, and whenever they are shot him with an

arrow, the arrow flies way up high instead and fall

back down again and it hit the warriors, and they were

wounded. And this grizzly bear tramped them until

they were crushed to the ground, and goes through the

village and kills a lot of people. And after that he

-- he

again, follow

first place. So the

see where he went, and it

disappeared into the lake. That's

elders told the young people not to play

came -- he turned and go into the water

the stream where he came from the

brave warriors went to -- to

goes into the lake,

why the wise

around

with fish or meat or anything, because the --

because the Sun God gave them food to eat and those

who -- just they should just take enough to eat and

not to play with it, that's why this tragedy happens

to them.

Q

Did any of the people go back up the trail that

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this grizzly bear followed down the mountain

afterwards?

A

Yeah. They went -- they went to follow the trail

and that's when they see that he disappeared, his

track disappeared into the lake. So they

believed that it's

because they played

the revenge of those trouts,

around with their bones.

Q

And is that lake -- do you know what that lake is

known to the non-Indian today, the name of that lake?

A

They call it see Seeley Lake.

This event, without reference to the fight with the giant

bear, is also described in Walter Wright's Men of Medeek, which

is a collection of oral histories. In this collection is also

found the adaawk of Izaac Tens (Nikadeen) where the lake is said

to rise, and he also describes the slaying of the Medeek in the

lake.

The plaintiffs' position is that the adaawk and other

historical references to this grizzly bear event is in part an

oral historical description of the great Seeley Lake slide. A

part of this slide is scientifically dated at around 3500 years

ago, so the plaintiffs say Gitksan persons must have been in the

area at that time.

With a view to establishing a scientific explanation for

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this legend consistent with the ancient presence of Gitksan

people in the region of Temlaxam and its environs, the

plaintiffs engaged Dr. Allen S. Gottesfeld and Dr. Rolf

Mathewes. Dr. Gottesfeld is learned in geomorphology which is

the study of existing land forms and the processes that cause

them.

Dr. Mathewes is learned in palaeobotany and in

particular pollen analysis and environment reconstruction.

It will be convenient to describe Dr. Gottesfeld's evidence

first. He studied the landslides in the Chicago Creek basin

which drains Seeley Lake into the Skeena.

Dr. Gottesfeld explained that all of British Columbia was

covered by ice during the last Ice Age but beyond its margins

somewhere in the State of Washington the soils are much deeper

and more developed. They have redder colours and the breakdown

of rock is much greater, leading to the conclusion that there

has been a lot more time for soil development processes to occur

south of the glaciers. Relative soil development has become a

standard technique for describing the sequence of glacial

deposits in North America. With younger deposits in areas

undisturbed since the last Ice Age (about 10,000-11,000 years

ago), one finds less soil development. Deposits which have

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intermediate levels of soil development show signs of incipient

soil development, slight reddening, and breakdown of feldspar

materials to clay and textural changes suggesting intermediate

development. Deposits found in the Hazelton area formed in the

last 100 or 200 years have essentially no soil development.

Radiocarbon dating is a technique which produces absolute

dates but it requires the collection of organic material like

pieces of wood, peat, pollen or other material. Such samples

are often difficult to find.

Following three days of fieldwork in July 1985, Dr.

Gottesfeld furnished a draft report and then entered into a

contract with the plaintiffs which included a specific

assignment to:

"a) conduct geological fieldwork and

review published data on the post-glacial

deposits of Stekyooden between Mudflat Creek

and Carnaby that will;

(i) confirm the Carnaby

and Chicago Creek slides correlate

with the Adaawk descriptions

supplied to you with respect to

type of event, size of event and

the blocking of the Seeley Lake

outflow...

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ii) date the above

noted events by identifying major

slide deposits and obtaining and

testing suitable carbon

samples..."

Dr. Gottesfeld said he was asked to correlate these slide

areas with the Adaawk descriptions he had been given.

After entering into his consulting contract, Dr. Gottesfeld

undertook intensive fieldwork in the Chicago Creek slide areas,

dug some test holes and looked for samples suitable for carbon

dating.

He identified the Chicago Creek landslide areas as a debris

torrent or avalanche which is one which occurs outside stream

channels and accordingly tends to cover greater land surface

areas. He identified two slide areas, one in the Chicago Creek

basin and one just to the east, the latter being a very active

slide area, the age of which was not determined because recent

slides in the last decade or two cover older parts of it.

The second debris fan originates in a contour valley just

east of Chicago Creek but spreads both east and west as it moved

north and its western extremity impinged on Chicago Creek. All

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is shown in Figure 2 of Dr. Gottesfeld's report (Exhibit 785).

Dr. Gottesfeld said that the bulk of that slide is active

and has a 20th century age. Sticking out from under the edges

of this modern debris fan are lobes of older material which,

when examined and dated by soil development, indicate they were

formed at the end of the Ice Age about 10,000 years ago. On the

westerly edge there appears to be a mid-holocene deposit. This

lobe appears to dam the Seeley Lake outfall.

He says this debris (mid-holocene) was formed from 3,000 to

6,000 or perhaps 8,000 years ago.

From test hole 13, which is shown on Figure 11 to be on the

northeast edge of the Chicago slide area, samples showed an age

of 1930 plus or minus 80 years B.P. From test hole 14, samples

yielded a date of 3580 plus or minus 150 B.P.

Dr. Gottesfeld rationalized the discrepancy between the two

dates by reference to the different composition of the areas in

which they were found. His conclusion is that the date of the

westerly edge of the slide in the Seeley Lake marsh area is more

accurate and "...3580 dates a time within a few years of the

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appearance of the landslide...,"

He said that although a large part of the westerly edge is

covered by newer slides, the underlying 3580 year feature is the

largest geomorphological event in the area.

From this basis Dr. Gottesfeld concluded that this debris

lobe diverted Chicago Creek and dammed the outlet of Seeley

Lake.

In his evidence he said that when this event occurred:

"...there would be a tremendous noise,

overwhelming loud noise, a great cloud of

material, swaths of forests being cleared as

the debris slide came down across the

Chicago Creek fan...I envisaged the debris

tarring where lots of water was incorporated

and debris and there would be this great

mud-charged mess of material coming down the

valley, a great rolled wall of brown

material, trees tossed around, just a swath

of countryside being cleared that would come

towards you, I am sure you would be

frightened and run away..."

I agree with his last statement.

Dr. Rolf Mathewes was qualified as an expert in the field

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of palaeobotany and in particular pollen analysis and

environmental reconstruction. "Paleo", as everyone knows,

refers to the past. A subdiscipline of palaeobotany is

palynology which specifically refers to the study of microscopic

pollen grains and spores which are the most abundant fossil

remains and are widely used in paleoenvironmental

reconstruction, particularly in the last few million years. It

is sometimes called pollen analysis.

Dr. Mathewes took 4 1/2 metres of 4.5 cm. diameter core

from the bed of Seeley Lake. This shows a layer of clay about 1

1/2 metres below the lake bed. This clay band is shown in the

photographs shown as Figure 5 in Dr. Mathewes' report (Exhibit

780). At vol. 143-9078 Dr. Mathewes gave the following

evidence:

"Q: And when you saw that clay band

that's indicated there, what did

that band indicate to you?

A: Well, such bands do occur in lake

sediments and they usually

indicate some form of disturbance.

It's a--usually an inwashing of

mineral matter. The lighter

colour is due to portions of silt

and clay which are lighter in

colour than the dark organic

residues. Therefore this

suggested input of mineral matter

would suggest some sort of

disturbance in the immediate

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watershed. That's reflected in

the bottom sediments accumulating

on the lake."

With carbon dating of macrofossil and pollen analysis of

samples taken on either side of the clay band, Dr. Mathewes

established the sample to be 3380 plus or minus 90 years B.P. A

deeper clay band was found to be 6330 plus or minus 160 years

B.P. while deeper gravel deposits were found to be 9230 plus or

minus 130 B.P. At 143-9081 Dr. Mathewes said:

"...There are a number of possibilities

for such clay bands in the lake, but looking

at all the evidence that I could find, I

would feel very strongly that this clay band

was formed by a sudden rise in water level

at the time of around 3380 years ago, which

caused mineral matter to be washed into the

lake and deposited as part of [the first

clay band]."

Dr. Mathewes also described a very abrupt increase in the

number of seeds and pollen above the clay band. Right above the

clay band is the largest collection of birch seeds in the whole

core with the exception of the early stages around 9,000 years

ago. This heavy concentration of birch seeds found right on top

of the clay band is from trees that would be expected to grow

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around the lakeshore. This influx of seeds was suggested by Dr.

Mathews to be caused by rising water levels which washed these

seeds from the forest floor and deposited them in the lake.

In addition, he found no macrofossil remains of the water

plant, ceratophylium (coon tails), below the clay band but a

huge concentration of this plant remains immediately above the

clay band. This suggested to Dr. Mathews that something was

bringing a lot of plant debris and detritus into the lake and

such plant remains eventually settled on the bottom. He says

this is consistent with a landslide disturbance of the water.

Dr. Mathews considered and discarded alternative causes

other than the landslide blockage of the stream outlet as

possible causes for the clay band found beneath Seeley Lake.

These included fire, storms and the activities of beavers. He

eliminated fire because of the lack of any increase in carbon

content in the samples taken throughout the depth of the core.

Similarly, he found no reason to think there was any

relationship between the older clay layer and the newer one.

There are numerous difficulties with this, not the least of

which are that there is no evidence of a village at Temlaxam;

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that there have been many major slides in the vicinity of Seeley

Lake, some in the historic era; and it is difficult to equate a

massive land slide to a grizzly bear. On the other hand, the

appearance of a bear in the course of such a slide may be

understandable post hoc reasoning which does not affect the

dating of the event.

I do not doubt a gigantic slide caused a blockage of

Chicago Creek 3500 years ago, but the portion of the slide

identified by the scientists to be of that date is only a

portion of the many slides in the area, and I am troubled that

its intersection with the course of Chicago Creek may be well

below the level of the lake. If this were so, it would have

been unlikely to raise the level of the lake because backed up

water would probably have found another downhill course to the

river.

The evidence on this question is uncertain. I rather

thought, when listening to the evidence of Dr. Gottesfeld, that

he was describing an intersection at an elevation lower than

Seeley Lake, and I think his report suggests this. At the end

of his evidence, however, I asked these questions:

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Q

And is it your evidence that the slide caused a

damming or backing up Chicago Creek and that in some

way brought the clay deposit to the underbed of Seeley

lake?

A

I think it's very likely. As I read Dr. Mathews'

report the lithology of his clay pan one match the

lithology of the clay deposit that I dated from among

the boulders at the edge of the Seeley swamp. I think

it is the same layer.

Q

What is the mechanism that causes -- that

explains the presence of clay pan from damming

of the creek and the possible raising of the

water level?

A

Well, what I would imagine happened was there

was this great bulge, this big massive deposit

came in and filled the valley, that Chicago Creek was

then running all over the deposit, or quite

disorganized fashion across the top of the deposit,

numerous channels washing out the fine crushed rock

material from among the boulders and making the lake

white with white ground up granite material that came

from the debris -- from

the debris flow and

placement, and then that clay and silt would be

distributed throughout the lake and gradually settle

down and be incorporated in sediments throughout the

lake.

I cannot believe such an eminent scientist would have given

that evidence if there was such a basic flaw in his theory. I

therefore conclude that the slide probably did cause the level

of the lake to rise as postulated.

The plaintiffs say this adaawk describes a land slide

actually experienced by Indian persons who have preserved it

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orally as part of their history. On this basis they ask me to

infer that Gitksan persons have been in the area of Chicago

Creek since at least the time of the slide.

The Medeek or supernatural portion of these adaawk is a

matter of belief, or faith, rather than rational inference.

That portion of the adaawk is not necessary for the purposes for

which the adaawk is tendered in evidence.

Assuming these

adaawk describe a landslide, I believe it could be reasonable to

regard them as confirmatory of other evidence of aboriginal

presence in the area at that time.

If these adaawk stood alone, I could not infer much more

than human presence. Particularly, I could not conclude those

present at the time of this event were necessarily ancestors of

any of the plaintiffs. It is just as probable, in my view, that

the story rather than the ancestors remained in (or returned to)

the area.

This demonstrates the difficulty of inferring details from such

a generalized account.

If supported by other facts, and subject to the assumption

just mentioned, I would not exclude these adaawk as evidence

confirming early Gitksan and Wet'suwet'en presence in the area

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which was, incidentally, immediately adjacent to the Skeena

River just a few miles west or south of the forks of the Skeena

and Bulkley Rivers. As it turns out, however, I am able to

infer Gitksan and Wet'suwet'en presence in that general area for

the required time-depth on other evidence, particularly

archaeology, linguistics and genealogy without having to decide

whether these adaawk actually describe a land slide.

In the result, I do not reject the possible connection

between the landslide and Gitksan presence, but I do not find it

necessary to rely upon it.

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(f) Genealogical Evidence (Ms. Harris)

Ms. Harris is a Gitksan person by adoption with a chief's

name. She has done graduate student work towards her Master's

degree in anthropology, but she has not written her thesis. She

has undertaken the enormous task of constructing genealogical

charts for the Gitksan Houses.

Ms. Harris is not really qualified for this project. She

admits she did not follow research guidelines which have been

established for this kind of work, she did not submit her work

to adequate testing or scrutiny, and she is, of course, a

plaintiff interested in the outcome of the very litigation for

which this work was done. It would have been better if this

work had been done by a disinterested person, but considering

the only data sources were other Gitksan persons, it may also be

the case that an outsider would not have received the

cooperation which was so essential to the project.

There are obvious difficulties with this evidence, which,

even when confirmed by witnesses, is in one sense just a

collection of hearsay statements organized by Ms. Harris to

demonstrate matrilinear organization of Houses. No verification

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of her conclusions is possible because there are no records.

Even headstones do not disclose House membership. The

reputation upon which she relies, if any, is limited to the

Gitksan community which has an obvious interest in the outcome

of the case for which these charts were prepared. Also, the

genealogical charts furnish very little evidence about Gitksan

populations or organization beyond the late years of the last

century. In addition, it is generally held to be difficult,

even with records, to have much understanding beyond 3

generations.

Notwithstanding the above, and many admitted errors and

inconsistencies, I have a favourable impression of the

competence and industry of Ms. Harris, and there is no reason

why I should not accept her charts as generally reliable

evidence of genealogy from which House membership may be

inferred even though Houses are rarely mentioned in writings

about her people.

Doing the only thing that could be done, that is talk to

elders who alone have the information required for the formation

of charts, Ms. Harris has done her best to furnish a workable

understanding of the family lineages she was investigating. The

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only general discount I would apply to her work relates to the

reliability of her informants, particularly those who spoke

beyond the 3 generations or the one hundred years mentioned

above.

I was not nearly so impressed with the Wet'suwet'en

genealogical charts, as they were prepared piecemeal. The

original research was started by Ms. Harris, but she then

concentrated on Gitksan genealogies and her files were turned

over to Dr. Antonia Mills who is an anthropologist retained by

the plaintiffs in this case. Dr. Mills has no qualifications in

this specialized kind of work and she left before the genealogy

project was completed. The Wet'suwet'en charts were actually

prepared by Mr. Victor Jim who also has no qualifications in

this area. It was finally left to Ms. Wilson-Kenni, a Gitksan

person employed by a Wet'suwet'en Band Council, to adduce these

charts in evidence.

Again, the Wet'suwet'en charts do not explain or

demonstrate social organization.

Notwithstanding all these difficulties, I have the view

that most of these charts are fair indicators of the various

lineages, and I believe some of them are generally reliable for

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3 or 4 generations. They are, however, one dimensional, in that

they only disclose kinship. Matrilinear organization upon which

House membership depends has been imposed arbitrarily on these

charts.

Although I have no doubt their charts contain much useful

information, particularly those which have been confirmed by

witnesses, they are largely hearsay sometimes lacking the

verification of a reliable, qualified opinion. They do not

establish House membership as an active force in the lives of

the persons listed. Again, in the view I have of this case, it

does not matter if they are strictly correct, although I think

most of them are probably accurate.

(g) Ms. Marsden's Evidence (Origins and Migrations)

Ms. Marsden holds a minor chief's name in a Gitksan House

consequent upon her adoption into a House. She has a Bachelors

degree in Anthropology but no other academic qualifications.

She has undertaken a study of the adaawk of the Gitksan

including that of the grizzly bear I have already mentioned.

From these sources she has constructed a theory of Gitksan

origins and migrations in which she dates many events described

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in the oral histories and ties them into locations such as the

legendary village of Temlaxam which is featured extensively in

her theory.

In fact, it appears to me that the existence of Temlaxam is

central to her theory, and, as I have said, there is no

objective evidence it ever existed.

Ms. Marsden does not say that each adaawk is literally

correct, and she acknowledges that many of the events which they

describe are in the historic period, but her fundamental

proposition is that some Gitksan histories can be dated back to

10.000 years ago even though they include many obviously

historical events.

I am unable to accept Ms. Marsden theory. I have no doubt

it is put forward honestly and in good faith, but her

qualifications are not adequate for such a study, it has not

been published or subjected to academic or other learned

scrutiny, she is an interested party, and she has ignored some

verified facts and other learned opinions such as those of Drs.

Kari and Gottesfeld because they "they do not fit her

chronology."

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(h) Linguistic Evidence (Dr. Rigsby and Dr. Kari)

As mentioned earlier the Gitksan and Wet'suwet'en speak

Tsimshian and Athabaskan languages or dialects respectively. By

a mysterious process only properly understood by very learned

persons, it is possible to make estimates of when the speakers

of a particular dialect "separated" from speakers of other

dialects. The plaintiffs adduced the evidence of Drs. Rigsby

and Kari who have studied this question.

Drs. Kari and Rigsby are specialists in languages each

having a Doctorate in that discipline. Both were born in the

United States and each has studied and worked in various

languages and locations. Dr. Rigsby is now employed at the

University of Queensland, Australia, while his former pupil, Dr.

Kari, is at the University of Fairbanks in Alaska.

They collaborated on a joint report which is Exhibit 877.

It comprises 80 pages including a bibliography and there are

numerous appendices. They purport to have jointly written a

short introduction but cross-examination established that it was

partly authored by the plaintiffs' evidence coordinator. There

is a section on linguistic methods which was apparently written

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by Dr. Rigsby who also furnished a major report on Gitksan

Linguistic Relations while Dr. Kari wrote sections on

Wet'suwet'en Linguistic Relations. A final section on the

relationship of Gitksan and Wet'suwet'en languages was jointly

prepared.

Dr. Rigsby's portion of the report was filed as evidence

and the defendants did not require him to be cross-examined.

Dr. Kari was extensively cross-examined.

The introduction to the report is relatively innocuous.

Because of doubts I have about who wrote it, I do not propose to

consider it. While the discovery of an intrusion into the

authorship of this report was embarrassing, and produced some

mild drama at trial, I was agreeably satisfied with the

explanation offered by Dr. Kari who did not seek to refute the

obvious. I do not think this minor contretemp affects the

balance of the report.

Generally speaking, Dr. Rigsby says the Gitksan have a

distinctive language which is generically within a group of

languages called Tsimshian which is spoken on the north-west

coast around Prince Rupert and in the lower Nass and Skeena

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Valleys. Each of these three species or dialects of Tsimshian,

and a newly discovered South Tsimshian, is a distinctively

different but related language.

Early linguists such as Boaz (1888) and Dorsey (1897)

regarded Nishga as the oldest and purest dialect of which

Gitksan was a part, and Tsimshian was regarded as a different

dialect.

In fact, Gitksan and Nishga people understand each other

readily but they do not immediately understand Coast Tsimshian

although they are quite easily able to learn and understand it.

Coast Tsimshian speakers are able to understand Nishga more

easily than Gitksan.

South Tsimshian is a recently discovered dialect which is

spoken in the vicinity of Hartley Bay and also at Metlakatla.

It is related to, but different from, Coast Tsimshian.

Dr. Rigsby believes Gitksan and Nishga languages are more

closely related to each other than either is related to Coast

Tsimshian or South Tsimshian. Thus, he says, they are descended

from a common ancestral language which he calls Proto-Interior

Tsimshian. He thinks Gitksan and Nishga are sister languages

and that they may be said to be cousin languages to Coast and

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Southern Tsimshian.

On the Swadish 100 Word Basic Test, Gitksan and Nishga

share a remarkably high number of 97 items, but are lower rated

in non-basic or "cultural" vocabulary. This test permits an

estimate to be made for the likely date of separation which

suggests a 100 year likelihood between Nisgha and Gitksan

against a likely 500 to 2000 years for Coast and Southern

Tsimshian. Partly for geographic reasons, Coast Tsimshian was

probably the lingua franca of the north-west coast region.

Dr. Rigsby believes "...the linguistic ancestors of the

Tsimshianic speaking people lived in the lower and middle Skeena

Valley and probably also in the inlets and islands along the

coast." These languages are said to contain a marine influence,

and thus are not the languages of recent migrants from the

interior as Boaz has suggested. The recent discovery of South

Tsimshian supports the belief that the ancestral Tsimshian had a

more southerly sociocultural orientation prior to more recent

interaction with Haida and Tlingit.

Dr. Rigsby says in his Report at pp.40-41:

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"Within the Tsimshianic language

family, we believe that the split between

Interior Tsimshianic (Gitksan and Nishga),

Coast Tsimshian and Southern Tsimshian may

relate to the natural boundary of the canyon

of the Skeena River at Kitselas. The time

depth involved in the split between the two

Interior Tsimshian languages and Coast

Tsimshian is certainly greater than five

hundred years, but given that there was

continuing and regular interaction among the

speakers of the several languages over time,

it could go back more than two millennia.

However, I hasten to say that this is

strictly an estimate, based on my knowledge

of change in other language families. It

does, of course, predate the divergence of

Gitksan and Nishga, whenever that might have

occurred. And geographically, we may be

reasonably sure that as the Proto-Tsimshian

speech community broke up, the linguistic

ancestors of the Southern Tsimshian were at

the southern end of its territory, while

those of the Proto-Interior Tsimshian were

near its northern extreme.

The latter split between Gitksan and Nishga,

on the other hand, resulted from a movement

overland out of the Middle Skeena Valley and

intrusion into the Nass Valley by the

linguistic ancestors of the Nishga. The

Nishga then absorbed the Tlingit as they

moved into the Nass Estuary, as well as some

Athapaskan groups in the uplands. The rich

Nass Estuary remained a disputed area

between the Nisgha and the Coast Tsimshian

into recent times."

Dr. Rigsby postulates that after separation from Coast

Tsimshian, the Gitksan language of the Middle Skeena, east or

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north of Kitselas Canyon, began to be used further up the river

borrowing Athabaskan words particularly for interior

characteristics such as "moose" and other animals not found on

the coasts.

There is also a difference between the western Gitksan

dialect spoken in the western villages of Gitwangaak, Kitwancool

and Kitseguecla and that spoken in the upper Skeena villages of

Gitenmaax, Glen Vowell, Kispiox or the even the more distant

locations such as Kitgegas, Kuldo and Bear Lake, with the

principle differences being phonological.

I turn now to the portion of the report written by Dr. Kari

regarding the language of the Wet'suwet'en.

Dr. Kari says that there are about forty closely related

Athabaskan (or Dene) languages spoken in northern and western

North America. It is found in three main regions: Central

Alaska and north and north-west Canada; the pacific coasts of

Oregon and California (now almost extinct) and south-west United

States formerly extending into northern Mexico (Navaho). The

language is sometimes called Na-Dene.

No ones knows with certainty where the Athabaskan language

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originated, but Dr. Kari posits a disbursal probably from an

ice-free refugium in the vicinity of the Yukon-Alaska border as

that is the point of deepest divergence within the language

family. He agrees with Sapri (1921) who describes a clearly

unified group of languages over a widespread area, indicating

separation not too long ago because of the striking homogeneity

of the modern languages.

Dr. Kari estimates a proto-Athabaskan language immediately

ancestral to the modern languages was spoken as recently as 200

- 225 years ago, but he admits this is a sophisticated estimate

lacking the certainty of carbon dating. In fact, his estimate

is based largely on the comparisons with language diffusions in

Europe, which is a doubtful basis for such an estimate.

Father Morice, who resided at Stewart Lake from 1885 to

1904, was uncertain about the language of the people living in

the Bulkley and Babine drainage areas. They were regarded

generally as Carrier or Western Carrier, but Morice recognized

their distinctiveness in his 1892-93 writings. He identified

subdivisions within the general classification of "Babines"

particularly the 310 souls inhabiting the north half of Babine

Lake in three villages and the Hwotsu'tinni (Wetsoo Wet-een, or

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"people of the river Hwotsutan" (Bulkley)) living in two

villages, Tse-teah "down against the rock" (probably Hagwilget)

and Keyyarhwotgag ("old village") and two smaller places "now

organizing" (Tse-'Kaz-Kwoh,) and Moricetown on the Bulkley all

of which were on the Telegraph Trail. Morice said this group

numbered about 300 some of whom were related by blood to their

neighbours the Gitksan. Morice added this:

"The language of these different

branches of the Carrier tribe, while

remaining essentially the same, undergoes

however marked variations corresponding to

its ethnographical subdivisions. Upon that

ground I have even sometimes asked myself

whether distinct individuality as a tribe

should not be granted to the Babines whose

linguistic or even psychological

peculiarities are so glaring that they

cannot escape detection even by the most

careless observer. Much of their dialect

would indeed be 'greek' to an thau'ten

(Central Carrier) visitor".

In the map accompanying his 1892 article, Morice labelled

the Hwotso'tenne as part of the north-west Carrier area and

their language as a Carrier dialect.

But in his later classification (1906-1910) Morice

described the western Dene (Athabaskan) language as having three

languages, Babine, Carrier and Chilcotin.

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In his 1932 study of "The Carrier Language" Morice said the

grammatical terminological and morphological peculiarities of

the Babine are perhaps enough to make it a really distinct Dene

dialect.

Dr. Kari says other researchers such as Jenness, Goldman,

Steward and Kobrinsky do not directly address this question of

language or dialect. Nevertheless, Dr. Kari, supported by some

other modern researchers (particularly Allaire) is satisfied

there is a linguistic distinctiveness which entitles it to be

called North West Carrier partly because he thinks its range

extends to Tatla Lake (even though its inhabitants may have

moved there in this century) and is therefore both north and

west of the neighbouring Central and Southern Carrier.

Dr. Kari says the geographic area of this language group

includes:

(a) Wetsoo Wet'een ("people below, towards the

stream") or Bulkley River group;

(b) Xu'en Wet'een ("people off in this

distance") or Nii Duut'een ("people of

Niiduu Babine Lake") or Babine Lake group;

(c) Tatl'aht'een ("head waters people") or Tatla

Lake group; and

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(d) the south side of Francois Lake.

In the draft of a paper being prepared for publication, Dr.

Kari re-names the North-West Carrier language as Babine-

Wet'suwet'en and describes its geographical reach as follows:

"We estimate that the B-W language area

is approximately 10,000 sq. miles in area

(Marvin George, p.c.). It encompasses in

the Skeena drainage 1) the Bulkley River,

Babine Lake and Upper Babine River; in the

Fraser drainage 2) most of Francois Lake

and Ootsa Lake and upland areas to the west;

also in the Fraser drainage 3) the west

side of Takla Lake north of the narrows as

well as the lower portion of the Driftwood

River drainage at the head of Takla Lake.

Externally, the B-W language area meets or

overlaps the following native language

areas: 1) Sekani, an Athapaskan language,

meets B-W at Driftwood River and the east

side of Takla Lake; 2) Carrier, also an

Athapaskan language, borders B-W to the east

and southeast between the lower end of Takla

Lake and Eutsuk Lake; 3) Haisla, a Wakashan

language, is west of the coast mountains

west of Morice Lake and Tahtsa Lake; 4) the

Kitselas dialect of Coast Tsimshian borders

B-W west of Telkwa Pass; 5) Gitksan, a

Tsimshianic language, borders B-W to the

west between upper Copper River in the south

and upper Driftwood River in the north."

Because of language separation, Dr. Kari postulates the

arrival of Athabaskans in the Wet'suwet'en-Babine area 1500 to

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2000 years ago, the disbursal of some to California and Oregon

and the south-west later, and the arrival of the Central-

Southern Carrier separately and later from the east. The

Sekani, for example, are thought to have been relatively recent

migrants from east of the Rockies.

Dr. Kari and Dr. Rigsby collaborated on a section of the

report entitled "The Relationship of Gitksan and Wet'suwet'en".

Generally speaking, it is thought Athabaskan speakers do

not usually borrow freely from other languages. Recent

investigations however suggest there has been some borrowing

back and forth between Gitksan and Wet'suwet'en even though the

two languages are radically different in structure and belong to

different language families that are not closely related. There

are however some exceptions particularly the Gitksan adoption of

names of animals such as beaver, caribou and moose which are

specific to the interior, while the Wet'suwet'en have adopted

some Gitksan words such as red cedar, fireweed, clam, crab and

killer whale which are coastal words.

Of particular interest however is the Wet'suwet'en adoption

of words of social organization, especially in relation to

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feasts. These authors sum up as follows:

"To begin to sum up, the phonological

evidence indicates that it was Gitksan which

exercised a conservative influence on

Wet'suwet'en and blocked the diffusion

westward of the palatal-to-alveopalatal

sound shift. There is no evidence that

Wet'suwet'en influenced any of the sound

changes that can be observed in process or

completed in Gitksan. The vocabulary

evidence clearly shows that Gitksan borrowed

many fewer words from Wet'suwet'en than the

latter did from the former, and the

Athapaskan loans for animals into Gitksan

(and Nisgha) may be reasonably interpreted

as evidence for the arrival of Gitksan (and

Nisgha) speech in the upriver Interior areas

after Athapaskan speech was already

established there. The Tsimshianic

loanwords for plants and animals into

Wet'suwet'en reflect the middleman position

of the Tsimshianic-speaking peoples in the

regional trading system, as well as their

mediating role in introducing the

Wet'suwet'en to coastal species. The

Tsimshianic loanwords pertaining to features

of social organization and items of material

culture are consistent with the view that

the Wet'suwet'en have adapted their social

organization and expanded their

technological inventory more than the

Gitksan have. In particular, the

Wet'suwet'en adapted the feast complex from

the Gitksan, as evidenced in loanwords. And

the borrowing of the Gitksan vocative form

of father indicates that it was common in

the past for Gitksan men to marry

Wet'suwet'en women."

In his evidence however, Dr. Kari mentioned the above may

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be overly simplistic, and while many writers use a "dominant

theory" he does not know which of these two were dominant, if

either one was, although it is ethnologically common to think of

Tsimshian as "upscale" and Athabaskan as "down scale".

The evidence of these language specialists supports Gitksan

and Wet'suwet'en identity as distinct peoples for a long, long

time.

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(i) Historical Geography (Dr. Ray)

Dr. Arthur Ray is an historical geographer and senior

professor in the Department of History at the University of

British Columbia. He has excellent qualifications in his

special areas of expertise which includes the study of the

records of the Hudson's Bay Company, in particular those of

William Brown who was the first trader into the area,

establishing Fort Kilmaurs on Babine Lake in 1822.

Brown was a Scot who had served the Company or its

predecessor before he was assigned to New Caledonia, as the area

west of the Rockies was called. His assignment was to expand

the fur trade. After the establishment of Fort Kilmaurs on

Babine Lake he made infrequent trips into what we now regard as

Gitksan country along the Babine River. Unfortunately, he did

not journey even as far as the forks of the Babine and Skeena

Rivers or into the north or south areas of the territory.

As required by his employer, trader Brown filed numerous

reports which are a rich source of historical information about

the people he encountered both at his fort and on his travels.

I have no hesitation accepting the information contained in

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them.

At p. 55 of his opinion report Dr. Ray summarized some of

the conclusions he has reached, mainly from the records of

trader Brown, but Dr. Ray's wide experience in these matters

undoubtedly also contributed to this evidence. Dr. Ray says:

When Europeans first reached the middle and

upper Skeena River area in the 1820s they

discovered that the local natives were

settled in a number of relatively large

villages. The people subsisted largely off

their fisheries which, with about two months

of work per year, allowed them to meet most

of their food needs. Summer villages were

located beside their fisheries. Large game

and fur bearers were hunted on surrounding,

and sometimes, on more distant lands.

Hunting territories were held by "nobles" on

behalf of the lineages they represented and

these native leaders closely regulated the

hunting of valued species. The various

villages were linked into a regional

exchange network. Indigenous commodities

and European trade goods circulated within

and between villages by feasting, trading

and gambling activities."

The foregoing represents the strongest statement supporting

the plaintiffs' basic position which is to be found in any of

the independent evidence adduced at trial. It is worth noting

that Dr. Ray believes the natives were located in villages, that

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they lived off the land, principally the fishery, and hunted in

the surrounding lands which were partly controlled by nobles or

chiefs, or on some more distant unidentified lands, and that

they had established trade patterns or relations with other

villages.

The foregoing must be considered in the context of the

larger picture which emerged from the evidence. First, it would

be incorrect to assume that the social organization which

existed was a stable one. Warfare between neighbouring or

distant tribes was constant, and the people were hardly amenable

to obedience to anything but the most rudimentary form of

custom. Brown held them in no high esteem, partly because of

their addiction to gambling, and Ogden, about whom there are

different views (Dr. Sage called him "kindly," while others

refer to his "scorched earth policy in Oregon country"),

described them most unkindly.

I conclude from the foregoing, however, that there was

indeed a rudimentary form of social organization in the Babine

area, and it is reasonable to infer that similar levels of

organization then existed in the territory.

The early historic records appear to indicate that "game

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was never really plentiful" in the territory; "that fishing was

the mainstay of the economy;" and the exploitation of animals by

the Atnahs or the Carrier was pretty minimal "in terms of food."

The plaintiffs' expert evidence indicates two things:

First, moose and deer came into the Claim Area relatively

recently.

Secondly, there are references in the journals and reports

of Brown that suggest the chief's control of territories was not

exclusive, but was limited in some cases to beaver exploitation

which was used for ceremonial purposes by the Carrier, but was

not nearly so well regarded by the Gitksan in whose country that

animal was not nearly so plentiful. In fact, Stuart, writing in

New Caledonia in the early 1800's, said that Carriers did not

eat meat in nine out of ten years, except at feasts for the

dead.

Dr. Ray says at P. 24 of his Report (Ex 960):

"In contrast to beaver, some other

resources were not as carefully husbanded

and the 'nobles' do not appear to have had

first claim on them. For example, men who

did not have what Brown referred to as a

'land stake' were allowed to trap martin,

the other fur that was in strong demand from

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the area by Europeans. No mention is made

about prohibitions concerning the hunting of

large game or the taking of fish.

Presumably commoners could exploit the

territory of their house for subsistence

needs as required."

Thirdly, I heard so much evidence, and I was given so much

literature, that it is impossible to do more than extract from

it an impression of what was going on in the Babine territory

before and during trader Brown's time there.

Doing the best I can, it appears to me that after a period

of unknown duration prior to about 1700, during which there were

probably villages at the sites we now know about (although there

is evidence questioning most of them, eg. Brown never mentioned

Kisgegas although he describes some smaller nearby villages on

his journeys to that location); major population destabilization

began to occur at the coast which probably spread to the

interior; warfare became common, if it had not always been

present; and within about 10 years of Cook's arrival at Nootka

and his discovery of the potential for an ocean fur trade in

1778, the entire coast became, according to Wilson Duff,

"glutted with trade goods."

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At the same time, there were opportunities for trade goods

to reach the interior from the east and south, possibly via the

Mississippi (in 1806 Simon Fraser found Indians on his river in

possession of a copper kettle "made in England").

By the time trader Brown arrived at Babine Lake in 1822 the

coastal sea otter trade was finished but the taste for trade

made new initiatives necessary, and the great Tsimshian trading

family of Legaic was consolidating its control the lower and

middle Skeena.

Also by this time, Alexander Mackenzie had travelled to

Bella Coola "overland from Canada"; Captain Vancouver and others

had charted most of the north coast in 1794; Simon Fraser had

established forts in New Caledonia before 1806; and we may never

know precisely what influence Russian traders had on our coast,

and inland, but they may have been present and active in trade

before they established Fort Wrangle in 1825. In fact, active

trade was underway at the coast and spreading inland for at

least 30 years before trader Brown arrived at Babine Lake,

probably converting a Gitksan and Wet'suwet'en aboriginal life

into something quite different from what it had been.

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It is significant that trader Brown does not mention Indian

Houses in his records. He seems to use the terms tribe, band,

clan and family interchangeably, or perhaps imprecisely, but I

am left in considerable doubt about the antiquity of the House

system. Ogden describes 700 Indians in 28 "houses" in Hotset

with 20 ranked chiefs, which doesn't resolve this question.

I find the weight of evidence supports the view that the

fur trade materially changed aboriginal life before or around

the time trader Brown was making his records at Fort Kilmauers.

That does not prevent me from accepting Dr. Ray's opinion that

Indian social organization did not all arise by reason of the

fur trade. I think the evidence supports that by 1822 the

Indians of the Babine Lake region had a structure of nobles or

chiefs, commoners, kinship arrangements of some kind and

priority relating to the trapping of beaver in the vicinity of

the villages.

There is no reason to believe the neighbouring Indians of

the territory had any lesser degree of social organization at

the same time.

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3.

Conclusions on the History of the Gitksan and Wet'suwet'en

The scientific evidence, particularly the archaeological,

linguistic and some historical evidence persuade me that

aboriginal people have probably been present in parts of the

territory, if not from time immemorial, at least for an

uncertain, long time before the commencement of the historical

period. I base this conclusion mainly on the evidence of the

archaeologists, particularly Drs. Ames and MacDonald: the

linguists, Drs. Rigsby and Dr. Kari: Ms. Harris' genealogical

evidence; and trader Brown's records as explained by Professor

Ray.

In other words, I think it reasonable to infer from this

evidence that before the commencement of the fur trade some

aboriginals were living in villages on Babine Lake and along the

Babine River, as described by Brown. It is also reasonable to

infer, as I do, that the situation in the Skeena and Bulkley

Valleys was not dissimilar.

While I generally accept the genealogical evidence of Ms.

Harris, it does not intrude far enough back into history to

establish a time-depth of presence in any specific part of the

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territory. As there was no evidence of a population dispersal

since Brown's time, however, it is reasonable to infer that some

of the kinship relations Ms. Harris has identified would have

extended back further in time to and a long time beyond the

1820's when I find that some of the plaintiffs' ancestors were

present in the territory.

I am unable to accept adaawk, kungax, and oral histories as

reliable bases for detailed history but they could confirm

findings based on other admissible evidence.

I therefore infer that the ancestors of a reasonable number

of the plaintiffs were present in parts of the territory for a

long, long time prior to sovereignty.

I reach this conclusion mainly on the specific evidence

mentioned above, which persuades me it is reasonable to infer

that some of the people living in this territory during the last

100 years or so, with their present culture, history, known

ancestry and language are probably descended from more remote

aboriginals who,in my view, must have been present in parts of

the territory well before contact with European influences.

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In a communal claim of this kind I do not consider it

necessary for the plaintiffs to prove the connection of each

member of the group to distant ancestors who used the lands in

question before the assertion of sovereignty. It is enough for

this phase of the case, subject to the other difficult questions

I must consider, for the plaintiffs to prove, as they have, that

a reasonable number of their ancestors were probably present in

and near the villages of the territory for a long, long time.

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PART 9. THE REMAINING LEGAL ISSUES (SHORT FORM)

Having decided that the ancestors of some of the plaintiffs

were present in parts of the territory for a long, long time

before sovereignty, the remaining legal questions may

compendiously be stated simply:

1. Are the plaintiffs entitled to an aboriginal

interest in the territory?

2. If so, what is the nature of the aboriginal

interest to which the plaintiffs are entitled? and,

3. To which lands of the territory do such

aboriginal interests attach?

As will be seen, each of the foregoing have many sub-

questions, and many difficulties.

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PART 10. THE CREATION OF ABORIGINAL INTERESTS

1.

The Underlying Title of the Crown

In their pleadings and argument the plaintiffs admit that

the underlying or radical or allodial title to the territory is

in the Crown in Right of British Columbia. This reasonable

admission was one which the plaintiffs could not avoid. It sets

the legal basis for any discussion of title.

Counsel seem to be agreed that this underlying title, at

least from the establishment of the colony in 1858 until

Confederation, was in the Imperial Crown, and was never in the

Crown in Right of Canada.

There is limited jurisprudence relating to the title to

land actually used or occupied by aboriginals prior to the

assertion of sovereignty by a European nation.

Counsel for both the plaintiffs and the province treated me

to the writings of scholars who have considered these questions.

The plaintiffs referred particularly to early Spanish authors

such as Bartolome de las Casas and Franciscus de Vitoria, who

wrote in the 16th century. The province referred me to the

Swiss writer, Vattel, whose principal work was published in

1844.

The Spanish writers, both Dominicans, denied any right of

possession of land by discovery or conquest.

De Vitoria said:

"Now the rule of the law of nations is that

what belongs to nobody is granted to the

first occupant, as is expressly laid down in

[Justinian] Institutes. And so, as the

object in question was not without an owner,

it does not fall under the title which we

are discussing... By itself it gives no

support to a seizure of the aborigines any

more than if it had been they who had

discovered us."

(Williams, p. 71; F. Vitoria, de Indies et

De Iure Belli Relectiones, Classics of

International law, ed. E. Nys. (1917))

Vattel, on the other hand, said:

"There is another celebrated question to

which the discovery of the new world has

principally given rise. It is asked whether

a nation may lawfully take possession of

some part of a vast country in which there

are none but erratic nations, whose scanty

population is incapable of occupying the

whole? We have already observed, in

establishing the obligation to cultivate the

earth, that these nations cannot exclusively

appropriate to themselves more land than

they have occasion for, or more than they

are able to settle and cultivate. Their

unsettled habitation in those immense

regions, cannot be accounted a true and

legal possession, and the people of Europe,

too closely pent up at home, finding land of

which the Savages stood in no particular

need, and of which they made no actual and

constant use, were lawfully entitled to take

possession of it and to settle it with

Colonies. The earth, as we have already

observed, belongs to mankind in general, and

was designed to furnish them with

subsistence. If each nation had from the

beginning resolved to appropriate to itself

a vast country, that the people might live

only by hunting, fishing and wild fruits,

our globe would not be sufficient to

maintain a tenth part of its present

inhabitants. We do not, therefore, deviate

from the views of nature, in confining the

Indians within narrower limits. However, we

cannot help praising the moderation of the

English Puritans, who first settled in New

England, who, notwithstanding their being

furnished with a charter from their

Sovereign, purchased of the Indians the

lands of which they intended to take

possession. This laudable example was

followed by William Penn, and the Colony of

Quakers that he conducted to Pennsylvania."

Vattel's principle seems to have been accepted by Marshall

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C.J., in Johnson v. M'Intosh, at p. 572-3 when he said:

"On the discovery of this immense continent,

the great nations of Europe were eager to

appropriate to themselves so much of it as

they could respectively acquire. Its vast

extent offered an ample field to the

ambition and enterprise of all; and the

character and religion of its inhabitants

afforded by apology for considering them as

a people over whom the superior genius of

Europe might claim an ascendency. The

potentates of the old world found no

difficulty in convincing themselves that

they made ample compensation to the

inhabitants of the new, by bestowing on them

civilization and Christianity, in exchange

for unlimited independence. But, as they

were all in pursuit of nearly the same

object, it was necessary, in order to avoid

conflicting settlements, and consequent war

with each other, to establish a principle

which all should acknowledge as the law by

which the right of acquisition which they

all asserted, should be regulated as between

themselves. This principle was that

discovery gave title to the government by

whose subjects, or by whose authority, it

was made, against all other european

governments, which title might be

consummated by possession.

...

No one of the powers of Europe gave its full

assent to this principle more unequivocally

than England. The documents upon this

subject are ample and complete. So early as

the year 1496, her monarch granted a

commission to the Cabots, to discover

countries then unknown to Christian people,

and to take possession of them in the name

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of the King of England. Two years

afterwards, Cabot proceeded on this voyage,

and discovered the continent of North

America, along which he sailed as far south

as Virginia. To this discovery the English

trace their title."

Subsequent authorities make it clear that such sovereignty

exists not just against other "civilized" powers but extends as

well to the natives themselves: St. Catherine's Milling and

Lumber Company v. the Crown (Ont.), (1887) 13, S.C.R. 577 per

Taschereau J. at p. 643. (aff'd), (1889) 14 AC. p. 46

(J.C.P.C.).

Apart from St. Catherine's Milling just mentioned, there

are many other authorities. They include a number of American

cases, such as Johnson v. M'Intosh; cases in the Privy Council

such as Re Southern Rhodesia, [1919] A.C. 211 and Amodu Tijani

v. The Secretary, Southern Nigeria, (1921) 2 A.C. 399

(J.C.P.C.); The Queen v. Symonds, (1847) N.Z.P.C. Cases, 387 in

New Zealand; and Milirrpum v. Nabalco Pty Ltd. [1972-73] A.L.R.

65 in Australia, and many others. None of them suggest that the

Crown, upon asserting sovereignty, does not acquire title to the

soil.

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I think it unnecessary to continue this debate. In my view,

it is part of the law of nations, which has become part of the

common law, that discovery and occupation of the lands of this

continent by European nations, or occupation and settlement,

gave rise to a right of sovereignty. Such sovereignty in North

America was established in part by Royal grant as with the

Hudson's Bay Company in 1670; by conquest, as in Quebec in l759;

by treaty with other sovereign nations, as with the United

States settling the international border; by occupation, as in

many parts of Canada, particularly the prairies and British

Columbia; and partly by the exercise of sovereignty by the

British Crown in British Columbia through the creation of Crown

Colonies on Vancouver Island and the mainland.

Aboriginal persons and commentators often mention the fact

that the Indians of this province were never conquered by force

of arms, nor have they entered into treaties with the Crown.

Unfair as it may seem to Indians or others on philosophical

grounds, these are not relevant considerations. The events of

the last 200 years are far more significant than any military

conquest or treaties would have been. The reality of Crown

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ownership of the soil of all the lands of the province is not

open to question and actual dominion for such a long period is

far more pervasive than the outcome of a battle or a war could

ever be. The law recognizes Crown ownership of the territory in

a federal state now known as Canada pursuant to its Constitution

and laws.

In my judgment, the foregoing propositions are absolute.

The real question is whether, within that constitutional

framework, the plaintiffs have any aboriginal interests which

the law recognizes as a burden upon the title of the Crown.

Needless to say, the parties have widely differing views on this

question.

2.

The Province's Preliminary Position

The province takes the position that the new British

colonies of Vancouver Island and British Columbia, established

in 1846 and 1858 respectively, and amalgamated into the merged

Colony of British Columbia in 1866, are classified not as

conquered or ceded but rather as settled colonies because

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British subjects settled here partly under the sponsorship of

the Hudson's Bay Company. From that beginning, it was argued,

British law followed its subjects, and no one can claim any

lands or interests in lands except through the Crown. Then, the

argument goes, the only title or rights which can exist are

those granted or recognized by the Crown.

Counsel for the province asserts that the policy of the

colonies, as pronounced on a number of occasions by Governor

Douglas and which was never rescinded, was that the whole of the

province would be opened up for settlement except village sites

occupied by Indians together with their cultivated fields and

surrounding hunting grounds. These occupied lands, later called

reserves, were not available for pre-emption or alienation.

Furthermore, the Indians had the right, in common with everyone

else, to use all of the rest of the vacant public lands of the

colony. In this scheme there was, counsel argues, no room for

other aboriginal interests.

I can dispose of this submission quickly. There are a

number of recent Canadian decisions which suggest aboriginal

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interests arise by operation of law (perhaps borrowed from the

amorphous law of nations), and do not depend upon a grant from

the Crown.

First, in Calder, none of the judges found it necessary to

state the precise nature of aboriginal interests but they

clearly had the view that aboriginal rights did not depend upon

treaty or statute (per Judson J. at p. 334 and Hall J. at p.

390).

Second, in Baker Lake, Mahoney J. made it clear that, in

his opinion, aboriginal rights may arise at common law.

Thirdly, in the judgment of the Supreme Court of Canada in

Guerin, Dickson J. (as he then was), said at p. 378:

"...That principle supports the assumption implicit in

Calder that Indian title is an independent legal right

which, although recognized by the Royal Proclamation

of 1763, nonetheless predates it."

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The statement just quoted from Guerin was not necessary for

the decision in that unusual case, which bears no resemblance to

this case. It holds that aboriginal "title", if it exists in

particular circumstances, arises apart from constitutional or

statutory arrangements or even, I suppose, Acts of State.

Court in Guerin, however, did not deal with the nature of

aboriginal interests to which I shall return in due course.

The

Mr. Goldie sought to nullify the above pronouncement in

Guerin by reference to what appears to be a misunderstanding of

the facts in A.G. Canada v. A.G. Quebec, [1921] l A.C. 401,

(J.C.P.C.), (sometimes called The Star Chrome Case), to which

the Court in Guerin refers. It does appear that the lands in

Star Chrome were indeed within the boundaries of the old

province of Quebec at the time of the Royal Proclamation, 1763.

Notwithstanding this, the authorities must now be considered to

have settled the law that, under present Canadian jurisprudence,

aboriginal interests arise by operation of law out of long time

aboriginal use of specific territory and do not depend upon

Crown creation or recognition.

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3. In What Circumstances do Aboriginal Interests Arise?

(a) By long time aboriginal use of specific territory

In their Statement of Claim, the plaintiffs allege they

have "...since time immemorial...owned and exercised

jurisdiction over the lands ...," etc. (paras. 56 and 56 (A)),

and in their particulars they allege they have, from time

immemorial, "lived within the Territory" and have "...harvested,

managed and conserved the resources within the Territory"

(paras. 57 (a) and b)).

While all or most of the plaintiffs' allegations are framed

in terms of ownership and jurisdiction, I have already said that

I understand such claims also include lesser aboriginal

interests.

I am not able to conclude on the evidence that the

plaintiffs' ancestors used the territory since "time immemorial"

(the time when the memory of man "runneth not to the contrary").

"Time immemorial," as everyone knows, is a legal expression

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referring to the year 1189 (the beginning of the reign of

Richard II), as specified in the Statute of Westminster, 1275.

In any event, I think a plea of "time immemorial" imposes too

high a burden upon the plaintiffs.

What the law requires, as the time-depth component of

aboriginal interests, is use for aboriginal purposes for a long

and indefinite time prior to the assertion and exercise of

European-type sovereignty. Thus if it were shown, for example,

that the plaintiffs' ancestors started to use the territory for

aboriginal purposes shortly before European contact, or had

recently acquired it through conquest of another aboriginal

tribe or people, then an aboriginal interest would probably not

be recognized.

I do not think it is necessary to dwell unduly on this

question. I have already concluded that the ancestors of some

of the plaintiffs have been using at least some parts of the

territory for a long, long time before the assertion of British

sovereignty.

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(b) By the Royal Proclamation, 1763

One of the most interesting parts of the evidence and

argument in this case concerned this famous Proclamation which

was issued by George III, on the advice of his Ministers, on

October 7, 1763 following the completion of the Peace of Paris

on February 10 of that year. A great deal of interesting

evidence was adduced about this Proclamation and I estimate

almost one-quarter of the arguments of counsel was devoted to

this question. Canada adopted the argument of the province on

this question.

As a result, the history of the American Colonies and of

Quebec (or Canada) before, during and after the Seven Years War

was investigated at trial, including the circumstances of the

preparation of the Proclamation; we minutely examined the

headwaters of the Mississippi and its tributaries; we studied

the "opening up" of the west both from Hudson's Bay, Quebec, and

the American Colonies; and we explored the discovery of the

Pacific Coast by many intrepid navigators from Europe and Asia.

Much of this was done through historical records, of which there

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are a great many, and by maps prepared during the 15th to 19th

centuries which tell the fascinating story I was honoured to

hear described by such eminent and knowledgeable scholars.

It is therefore with much hesitation, and with the greatest

possible respect both to the witnesses and to counsel who

expended so much skill and energy on this question, that I find

myself able to dispose of it quite summarily. For reasons which

I shall endeavour to state, I do not find it necessary to do

more than outline the principal facts and to state my

conclusions which result mainly from the language of the

Proclamation construed in its historical setting. It is only

because the Royal Proclamation has received so much unfocused

attention in authorities dealing with both Proclamation and non-

Proclamation lands, and with Indians generally, that I find it

necessary to deal with it as extensively as I do.

In their Statement of Claim the plaintiffs plead that the

Royal Proclamation recognizes and confirms their aboriginal

rights, that is to say that the Proclamation applies to preserve

and protect aboriginal rights in British Columbia. The

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plaintiffs' pleading is in the following terms:

"64. The Plaintiffs have enjoyed and still

enjoy their aforementioned rights as

recognized and confirmed by the Royal

Proclamation made by His Majesty King George

the Third on the 7th of October, 1763

(hereinafter called the 'Royal

Proclamation').

65. The Royal Proclamation applies to

British Columbia and is part of the

Constitution of Canada. The Plaintiffs'

ownership and jurisdiction over the

Territory thereby includes without

restricting the generality of the foregoing:

1.

A right that the

Territory be reserved to the

benefit of the Plaintiffs until by

the Plaintiffs' informed consent

the said rights are surrendered to

the Imperial or Federal Crown.

2.

A recognition of

the Plaintiffs' aboriginal title,

ownership and jurisdiction and the

special relationship of the

Plaintiffs as Indians to the

Imperial or Federal Crown.

66. In the alternative, by virtue of the

Royal Proclamation of 1763, the Plaintiffs

enjoy the rights hereinafter set out:

1.

A right of

ownership of all lands within the

Territory and to territorial

waters and to the resources

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thereon and therein, and

2.

A right to

jurisdiction over the Plaintiffs

and the members of their Houses

and all the land, territorial

waters and resources within the

Territory, and

3.

A right to the

Imperial or Federal Crown's

protection in reserving the

aforementioned rights to the

benefit of the Plaintiffs until,

through the informed consent of

the Plaintiffs, the said rights

are surrendered to the Imperial or

Federal Crown."

The Province, on the other hand, takes the position that

the Proclamation has never applied to the lands or Indians of

British Columbia and has no legal or other effect in this

province.

It will be convenient to divide this part of my judgment

into three parts: (i) geography; (ii) history; and (iii)

analysis.

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(i) Geography

The treaty which formally brought the Seven Years War to an

end included as one of its principal parts the cession by France

to Great Britain of all of France's North American possessions

west of the Mississippi River including her claims to Cape

Breton and Nova Scotia (Acadia), Quebec (Canada) and the Island

of Grenada.

At this time, Great Britain already possessed Labrador,

Newfoundland, the 13 American colonies, and the territories

granted in 1670 to the Hudson's Bay Company the boundaries of

which were supposed to be settled as between Britain and France

by the Treaty of Utrecht, 1707. That settlement, however, was

never achieved.

Great Britain, on the other hand, recognized the claims of

France in North America west of the Mississippi (Louisiana

Territory), which France retained until purchased by the United

States in 1803.

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One of the major issues at trial, relating to the

geographic reach of the Royal Proclamation to British Columbia,

was whether the cession by France of "Canada and all its

dependencies" in the Treaty of Paris constituted a transfer of

all of North America north of a line drawn west from the

headwaters of the Mississippi in the present State of Minnesota,

just south of the 49th parallel. The plaintiffs argue that it

did, as St. Lusson had claimed all of the west for France at

Sault Ste. Marie in 1671, and France had established the Posts

of the Western Sea before 1763. These posts achieved that

unusual name because it was then thought there was an inland sea

or "Mer de L'Ouest" somewhere between the Great Lakes and the

great South Sea we now know as the Pacific.

The province denied that Canada in 1763 extended beyond the

Great Lakes. Counsel for the province argued that, if it did

extend further, the most westerly of these posts was Fort La

Corne at the forks of the Saskatchewan River (near Prince

Albert). In contrast the plaintiffs asserted that there was a

Fort, known as La Jonquiere, near the Rocky Mountains. If there

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was such a fort, which is possible, it existed for only a very

short time and was, admittedly, east of the Rockies. It appears

that even the location of those great mountains was much

misunderstood in Europe at the time of the Proclamation.

From this, the plaintiffs argue, Great Britain acquired

from France all of north-western North America north of the

headwaters of the Mississippi. She already had sovereignty over

Rupert's Land with its unsettled southern and western

boundaries. In short, the plaintiffs say the Proclamation

accordingly applied not just to the lands between the original

colonies and the Mississippi, but also to all of north-west

North America.

The province argues that, at the time of the Treaty of

Paris, Canada extended no further west than the area around the

Great Lakes, or to Fort La Corne at the very most. Certainly,

the province says, it did not apply to the terra incognita west

of the Rockies as 1763 was 15 years before Cook's landfall at

Nootka in 1778. In fact, there had been no significant

exploration of the west coast of North America from the time

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Drake visited the West-Coast in 1579 and the Spanish reached

Cape Blanco (43 degrees north) in 1603, until Bering and

Chirikov made landings on the north-west coast north of the 56th

parallel in 1741. Mueller's 1754 map shows only a broken line

for the coastline and practically no detail for the north-west

coast. Spanish interest in this coast was not revived until the

arrival of Perez on our coast in 1774. Moreover, Cook only

visited Nootka momentarily in 1778 before he headed north to

Alaska in search of the North West Passage and he did not

further visit this coast except on what is now the coastline of

Alaska. He was, of course, killed in Hawaii that winter, and

although his expedition returned to Alaskan waters the next

year, it did not sight our coast again.

Insofar as overland exploration is concerned, La Verendrye

may have travelled to within sight of the Rockies in 1741, but

more probably what he saw were the Big Horn Mountains of

Wyoming. Mackenzie's and Fraser's travels west of the Rockies

did not occur until 1791 and 1806 respectively. Both of these

intrepid explorers crossed the province south of the territory,

and it is thought that either Brown or MacGillvray in the 1820's

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was the first European in the territory.

While there can be no certainty in most of these

matters, the best evidence of what was understood about "Canada"

and the lands west of the Rockies can be extracted from

contemporary maps and documents. In selecting a few examples I

do not intend to suggest that those I have chosen are the only

ones I could refer to or that they are conclusive. I think they

probably furnish the best view of what was known in 1763 about

what is now British Columbia.

In 1754, 9 years before the Peace of Paris and the Royal

Proclamation, a French administrator in New France wrote a

report stating that Canada comprised the lands abutting on the

St. Lawrence from its mouth to its source, and all the other

tributaries that discharge into it (Ex. 1163-181 p. 11; T. 276

p. 20,532 - 20,533).

This would put the western reach of

Canada not west of the heights of land west of Lake Superior

which divides the St. Lawrence drainage from those of the

Mississippi River and Hudson's Bay.

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Shortly after the capitulation of Montreal, and in response

to British inquiries about the extent of Canada, Vaudreuil, the

Governor of New France, described its boundaries to Colonel

Frederick Haldimand on a map of North America (the Vaudreuil-

Haldimand map). That map and Haldimand's account of Vaudreuil's

instructions show Canada extending as far west as Lac Rouge,

which appears on the map to be the headwaters of the River

Mississippi and which was then thought to be considerably east

of its real location. The Vaudreuil-Haldimand map was sent by

Commander-in-Chief Amherst to First Minister Pitt, who was

responsible for the negotiations with the French, and it was

used by the British in negotiating the Treaty of Paris. During

the initial stages of the peace negotiations in 1761 the French

attempted to expand, at the expense of Canada, the limits of

Louisiana which they were to retain. Even in those descriptions

of French holdings, France did not extend Canada much beyond

Lake Superior.

Maps prepared at the time show how little was known about

the western parts of North America. Vaugondy's 1750 map shows

"Terra Inconnues" for all of the area west of Hudson's Bay north

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of the 45th parallel and no coastline north of that latitude.

De L'isle's map of 1752 is totally confused with large

inland lakes, including a "Mer de l' Ouest" opening from de

Fuca's alleged discovery (now thought to be imaginary) and a

recognition of the myths of the fictitious Admiral de Fonte and

La Honta whose imaginary exploits seem to have misled many map-

makers.

Bellin's 1755 map shows a gap in the west coast between

48th and 54th parallels, and then a hand drawn coastline is

shown from the 54th to about the 59th parallel with a notation,

"one does not know if these are islands or the continent."

There is a further notation in a large blank area to the east,

"No one knows if these parts are land or sea." To the north and

east of this it is stated, also in a large area without any

detail, "these parts entirely unknown." In fact, there is no

detail on the 60th parallel from the coast to Hudson's Bay, none

on the 55th from the coast to Lake Winnipegosis, and none on the

50th from the coast to the Assiniboine River (which is shown in

an east-west attitude, with a notation suggesting "it is

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possible to believe flows to the Western Sea"). There is

however, a large note, covering what is now southern British

Columbia stating "La MER De L'OUEST," suggesting that much of

that province was a large inland sea.

The Bowen Map, dated February 1763, which was probably

attached by the Board of Trade to the draft of the Royal

Proclamation, shows hardly any detail of north-west North

America west of Lake Superior; it states the headwaters of the

Mississippi are unknown but were thought to be at about 50

degrees of latitude; the West coast is not shown much north of

the head of the Gulf of California; and the entire north-west is

displaced on one copy by a crude inset map of Hudson's Bay and

the islands to the north and east. The Canadian west, including

British Columbia, is just left blank on a generalized version.

I accept Dr. Farley's evidence that map-makers would show any

detail they knew about the north-west as it would make their map

more saleable.

In 1777 a further map was produced by Jeffries, which is

largely copied from Bowen, but there are a few changes. It is

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described in its cartouche as:

"A New and Correct Map of North America with

the West India Islands Divided According to

the Last Treaty of Peace, Concluded at Paris

10th, Feb. 1763...Laid Down according to the

Latest Surveys and Corrected from the

Original Material of Gover. Pownall, Mem. of

Parlia'mt."

This map shows "the course of all these rivers [flowing

from the north into Lake Superior] is not discovered yet"; the

Mississippi, "whose head is unknown"; no coastline north of the

head of the Gulf of California; and the whole of the Canadian

west is blocked out by an insert of Hudson's Bay. This was one

year before Cook landed at Nootka and 14 years after the Royal

Proclamation.

Lastly, even Arrowsmith's 1790 map gives practically no

detail of the interior of the province, and shows Vancouver

Island as a part of the mainland.

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While the evidence is not conclusive, and I have no doubt

Mr. Rush is right when he argues more was known on the ground,

it is my conclusion that precious little was known by

governments in Europe in 1763 about the western half of North

America. The plaintiffs argue for French sovereignty over all

of Northern America, other than Rupert's Land, based in part on

the 1671 Sault Ste. Marie Proclamation of Saint-Lusson, the

establishment of the Posts of the Western Sea in the early to

mid 1700's, and the travels of La Verendrye in the 1730's and

1740's. But the fact remains, unquestionably, that there was no

French or British discovery, let alone occupation or other

assertion of sovereignty over any part of what is now British

Columbia prior to 1763.

The French may have had a better claim to (but practically

no presence on) the Canadian prairies based upon exploration or

discovery even though Kelsey in the service of the Hudson's Bay

Company seems to have been the first European to visit the real

west, reaching present day Saskatoon in 1690. I am unable to

conclude that France ceded the prairies or anything west of the

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Mississippi, let alone British Columbia, to Great Britain by the

Peace of Paris in 1763.

For these reasons it cannot be said that those vast areas

were British possessions at the time of the Royal Proclamation,

1763.

(ii) History

I turn next to consider the historical context and the

documentation created in conjunction with the preparation of the

Royal Proclamation. While counsel spent a great deal of time on

this, I shall only summarize it briefly.

There is no doubt that prior to the Seven Years War there

was great rivalry between the French and the British in North

America. The British Forts or "Factories" on Hudson's Bay

changed hands with the fortunes of war but, as mentioned

earlier, neither the westerly nor southerly boundary of Rupert's

Land was ever settled in those early days.

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France was well established in Canada (Quebec), while the

British maintained parts of the maritime provinces and 13

colonies on the Atlantic seaboard. Both coveted the Ohio

country and both needed the support and assistance of the

Indians. The British seemed to be more active in securing their

friendship, obtained in part by a series of treaties sometimes

called the Covenant Chain with the Six Iroquois Nations. During

such treaty negotiations, the various British negotiators

constantly gave assurances that Indians would be protected in

their hunting lands. There is no doubt, however, that what was

actually happening on the ground was the constant westward

spread of settlers.

The ultimate British success in the capture of Quebec in

1759 was accomplished without Indian assistance, but in the

subsequent campaign leading to the surrender of Montreal the

British Commander Amherst had almost 1,000 Indian warriors in

his ranks. This Indian involvement contributed substantially to

the result because such support made continued Indian adherence

to the French cause improbable. The French Commander,

Vaudreuil, had only 2,000 civilians and regular soldiers at his

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disposal against Amherst's 10,000, giving the former no

alternative but to surrender on September 8, 1760, turning over

all of Canada to the British. Although the European phase of

this war continued until the signing of the Peace of Paris in

February 1763, the struggle between Britain and France in North

America was largely over.

The plaintiffs argue, correctly I think, that for 150 years

prior to the Peace of Paris, Indian trade, politics and land had

been a central factor in the economic, military and political

fabric of North America. It is apparent that the support of the

Indians contributed substantially to the successful outcome of

the struggle for North America. The plaintiffs argue that the

British acknowledgment of Indians' rights to their territories

and that Indians could not be deprived of their lands without

their consent was fundamental to the survival and expansion of

British interests in North America. The plaintiffs argue that:

"These principles form part of the

bedrock of Canadian history and nationhood."

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In their outline of argument, the plaintiffs say:

"Underlying this review of the covenant

chain of treaties and conferences is the

Indian insistence of and the British

recognition that the Indian-Crown

relationship be grounded in 'justice'. The

word crops up again and again in both the

exchanges between the Iroquois and the

colonial authorities and in the Imperial

instructions to the colonial authorities.

The Six Nations and the Crown came to agree

that justice involved the recognition of the

rights of the Indian Nations as the original

proprietors of the soil, that their rights

to their territories could not be changed

without their consent expressed in public

council through the treaty protocol; and

that the Crown assumed the obligation of

protecting the Indian Nations from frauds

and abuses in relation to their territorial

rights."

The end of hostilities in North America with the surrender

of Montreal in 1760 did not end Indian apprehension about the

future of their hunting lands, (and I have no doubt they were

given many assurances). As was inevitable, there were incidents

of Indian uprisings and dissension. British authorities had

good reason to maintain good relations with the Indians because

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white settlers were still heavily outnumbered, particularly in

the still distant Ohio where an Indian uprising continued to be

a matter of great concern.

During a tour in 1761 Sir William Johnson, the British

official responsible for Indian affairs in the northern part of

the colonies, heard many stories about a possible uprising, and

of dissension on the frontier. At Detroit he met with

representatives of many Indian nations and he again gave them

many assurances which were well received. Tension continued to

build, however, largely because of increasing pressure from

settlers and many allegations of unfair means used in obtaining

deeds from Indians for their lands. In a 1761 letter to

Governor Colden, Johnson said:

"...nothing can tend more to alienate their

affection and attachment from His Majesty's

interest, than the pressing them to dispose

of their lands...,"

and he went on to:

"entreat you not to pass patents to any

lands, that were not given, or sold with the

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consent of their whole Castle as they say

that their Brethren the white people, often

make a few of their foolish people drunk,

then get them to sign deeds, while the rest,

and those, even whose property it is, know

nothing at all of the affair."

These problems on the frontier led the Lords of Trade in

London to be continually concerned about the safety and security

of the American colonies, particularly when they learned General

Amherst proposed to make land grants to his soldiers at Fort

Niagara. This led Pitt, the Secretary of State, to send a note

to the General warning him of the dangers inherent in making

grants on lands claimed by Indians.

A report prepared for the Lords of Trade was forwarded to

the Privy Council on November 17, 1761 with recommendations

which were approved by the Cabinet and the King. The Privy

Council directed that the Lord's recommendations be incorporated

into instructions to the non-proprietary colonies. These Royal

Instructions constitute the most comprehensive statement on

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Indian territorial integrity which had been made up to that

time. Recitals referred to the necessity to "...support and

protect the said Indians in their just Rights and Possessions

and to keep inviolable the Treaties and Compacts which have been

entered into with them." The actual instructions provide:

"[We] Do hereby strictly enjoin and covenant

neither yourself nor any lieutenant

governor...do upon any pretence whatever

upon pain of Our highest Displeasure and of

being forthwith removed from your or his

office, pass any Grant or Grants to any

persons whatever of any lands within or

adjacent to the Territories possessed or

occupied by the said Indians or the Property

Possession of which has at any time been

reserved to or claimed by them."

Johnson continued to be concerned about the number of

incidents which were occurring on the frontier, and Dr. Jack

Stagg, in his Anglo-Indian Relations, (Transcript, p. 23810)

concludes that "British-Indian relations had deteriorated to the

point of what appeared to be no return. One spark seemed to be

the only thing separating a tense situation from an explosion."

The Preliminary Articles of Peace were signed in Paris on

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November 6, 1762 leaving colonial officials both in London and

in America with a large basket of problems, such as how to

administer and govern the large French-Canadian population, what

security measures were required to protect British possessions,

and what policies were to be employed in managing the

relationship between the colonies and the Indian nations.

On December 6, 1762, Henry Ellis, Governor Designate of

Nova Scotia and a trusted advisor to the Earl of Egremont,

Secretary of State for the Southern District, submitted a

lengthy report on previous relations between the colonies and

some southern tribes with which he was familiar in his former

posting as Governor of Georgia.

Ellis recommended, amongst other things, that guarantees

should be given that no settlements were planned on Indian

lands. Egremont concurred with this and instructed action

accordingly. That a plan was in the preparation is demonstrated

by correspondence between Egremont and General Amherst. In a

letter, dated January 27, 1763, the former expressed his

concerns about the dangers of conflict over a questionable

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purchase of land in the Wyoming Valley at the time of the Albany

Conference in 1754, and went on to say:

"The King trusts, that you will, at least,

be able to prevail with the people concerned

in this pretended purchase, to suspend, for

the present, the making the settlement in

question, til you shall have reported to me,

for the King's information, a true state of

this matter...His Majesty having it much at

heart to conciliate the affection of the

Indian Nations, by every act of strict

Justice, and by affording them His Royal

Protection from any encroachment on the

Lands they have reserved to themselves for

their hunting grounds, and for their own

support and habitation: and I may inform you

that a plan, for this desirable end, is

actually under consideration."

Ellis is generally credited as the author of what has

become known as the "Hints" document which is unsigned and

undated, entitled "Hints Relative to the Division and Government

of the Conquered and Newly Acquired Countries in America." In

these Hints, it is stated:

"It might also be necessary to fix upon some

Line for a Western Boundary to our ancient

provinces, beyond which our People should

not at present be permitted to settle, hence

as their Numbers increased, they would

emigrate to Nova Scotia, or to the provinces

on the Southern Frontier, where they would

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be useful to their Mother Country, instead

of planting themselves in the Heart of

America, out of the reach of government, and

where, from the great difficulty of

procuring european Commodities, they would

be compelled to commence Manufactures to the

infinite prejudice of Britain."

On May 5, 1763 Egremont wrote to the Lords of Trade

requesting a report on the various problems associated with the

newly-acquired territories in America. He framed one of his

principal questions in the following terms:

"The second question, which relates to the

security of North America, seems to include

two objects to be provided for; the first

is, the security of the whole against any

European Power; the next is the preservation

of the internal peace and tranquillity of

the country against any Indian disturbances.

Of these two objects, the latter appears to

call more immediately for such regulations

and precautions as your Lordships shall

think proper to suggest."

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Egremont offered the Lords the following suggestion which

he called "Lights":

"Tho' in order to succeed effectually

in this point, it may become necessary to

erect some Forts in the Indian Country, with

their Consent, yet His Majesty's Justice and

Moderation inclines him to adopt the more

eligible Method of conciliating the minds of

the Indians by the Mildness of his

Government, by protecting their Persons and

Property and securing to them all the

Possessions, Rights and Privileges they have

hitherto enjoyed, and are entitled to, most

cautiously guarding against any Invasion or

Occupation of their Hunting Lands, the

Possession of which is to be acquired by

fair Purchase only and it has been thought

so highly expedient to give them the

earliest and most convincing Proofs of His

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Majesty's Gracious and Friendly Intentions

on this Head, that I have already received

and transmitted the King's Commands to this

Purpose to the Governors of Virginia, the

Two Carolinas and Georgia...."

It is not difficult to recognize the foregoing as one of

the sources of some of the thoughts and language of the Royal

Proclamation.

The initial task of drafting the requested report was given

to John Pownall, the Permanent Secretary to the Lords of Trade.

His draft, called a "Sketch," endorses the idea of restraining

westward expansion of the old colonies.

In his "Sketch" Pownall said permitting the colonies to

"extend their settlements" too far would:

"...probably induce a necessity for

such remote settlements (out of reach of

navigation) to engage in the production and

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manufacture of those articles of necessary

consumption which they ought, upon every

principle of true policy, to take from the

mother country..." (Ex. 1026-23, Morrison,

Transcript, vol 222, p. 16,166)

The Report of the Lords of Trade was submitted to Egremont

on June 8, 1763. It contains much economic advice, including a

statement that the region around the Great Lakes "...which

avowedly belonged to the Six Nations of Indians" was potentially

the richest fur trading area, and it also recommended a

mercantilist approach to settlement which would concentrate

populations near the sea coast and so they would be available to

English markets.

With regard to the Indian problem, the Board recommended:

"...that Territory in North America which in

Your Majesty's Justice and Humanity as well

as sound Policy is proposed to be left under

Your Majesty's immediate Protection, to the

Indian Tribes for their hunting grounds,

where no Settlement by planting is intended

immediately at least, to be attempted and

consequently where no particular form of

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Civil Government can be established. In

such Territory we would propose, that a Free

Trade with the Indian Tribes should be

granted to all Your Majesty's Colonies and

Subjects under such Regulations as shall be

judged most proper for that End, and under

the protection of such Military Force, to be

kept up in the different Posts and Forts in

the Indian Country as may be judged

necessary, as well for the Protection of

Trade and the good Treatment of the Indians

as the Maintenance as Your Majesty's

Sovereignty and the general defence of North

America."

In terms of the boundaries of the proposed Indian country,

the Board recommended:

"leaving a large Tract of Country around the

Great Lakes as an Indian Country, open to

Trade, but not to Grants and Settlements,

the Limits of Such Territory will be

sufficiently ascertained by the Bounds to be

given to the Governors of Canada and Florida

on the North and South, and the Mississippi

on the West; and by the strict Directions to

be given to Your Majesty's several Governors

of Your ancient Colonies for preventing

their making any new Grants of Lands beyond

certain fixed Limits to be laid down in the

Instructions for that purpose....

It is needless to state with any degree of

precision the Bounds and Limits of this

extensive Country for We should humbly

propose to Your Majesty that the new

Government of Canada should be restricted,

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so as to leave on the one hand, all the

Lands lying about the great Lakes and beyond

the Sources of the Rivers which fall into

the River St. Lawrence from the North to be

thrown into the Indian Country...." (Pltf.

Vol. III, p. 207)

With its Report, the Lords of Trade probably included a

copy of the Bowen Map of 1763 which I have already mentioned.

In July 1763 Egremont responded to the Report, advising it

had been laid before the King who had expressed approval of the

plan to establish three new colonies of North America--Canada

and East and West Florida--and he stated:

"His Majesty entirely concurs in your

Lordship's Idea, of not permitting any Grant

of Lands or New Settlements, beyond the

Bounds proposed in your Report; And that all

the Countries, beyond such Bounds, be also,

for the present, left unsettled, for the

Indian Tribes to hunt in; but open to a free

Trade for all the Colonies." (Pltf. Vol.

III, p. 208)

Lord Egremont, however, disagreed about civil jurisdiction

in the Indian country for fear of fugitives taking refuge there,

and out of concern that foreign countries might otherwise regard

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it as "derelict lands." The Lords of Trade agreed with this but

advised against adding the new territory to Canada as that would

give it an unfair trading advantage over other colonies. The

Lords suggested a commission should be given to the military

Commander-in-Chief of North America for the governance of the

new trade. The Lords also suggested further information should

be obtained, not apparently then knowing that most of the

military forts in the interior, except Detroit, had been

captured by Indians in Pontiac's Rebellion. The Lords concluded

their response:

"In the meantime, we humbly propose that a

Proclamation be immediately issued by Your

Majesty as well on Account of the late

complaints of the Indians, and the actual

Disturbances in Consequence, as of Your

Majesty's fixed Determination to permit no

grant of lands nor any settlements to be

made within certain fixed Bounds, under

pretence of Purchase or any other Pretext

whatever, leaving all that territory within

it free for the hunting Grounds of those

Indian Nations Subjects of Your Majesty, and

for the free trade of all your Subjects, to

prohibit strictly all Infringements or

Settlements to be made on such Grounds..."

(p. 211)

The Earl of Egremont died suddenly on August 21, 1763, and

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was replaced by Lord Halifax who advised the Lords of Trade, on

September 19, 1763, that the Government endorsed the idea of

issuing a Proclamation "to prohibit for the present any Grant or

Settlement with the Bounds of the Countries intended to be

reserved for the Use of the Indians," and he made other

comments.

After some amendments, the Royal Proclamation was issued on

October 7, 1763.

(iii) Analysis

In this part of my judgment I shall furnish a brief summary

of the language of the Royal Proclamation, with some Comments.

I shall intermix quotations with paraphrasing.

Part I The Proclamation is styled "[Establishing New

governments in America]" and it is dated "1763, October 7." It

goes on to assert that His majesty (George III) has taken into

his "Royal Consideration" the extensive and valuable acquisition

in America secured to his Crown by "the late Definitive Treaty

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of Peace" at Paris, and "being desirous" that all his loving

subjects, Crown and Kingdom, including the Colonies of America,

may avail themselves of the great Benefits and Advantages which

must accrue to their Commerce, Manufactures, and Navigation:

(1)

"We have thought fit to issue this Proclamation to

declare that we have granted Letters Patent to erect within the

Countries and Islands ceded to us Four distinct and separate

Governments called Quebec, East Florida, West Florida and

Grenada with boundaries as follows:

(2)

"First, the Government of Quebec, bounded on the

Labrador Coast by the River St. John, and from thence by a Line

drawn from the Head of that river through the Lake St. John to

the South End of the Lake nigh Pissin [Nipissing], from whence

the said Line crossing the river St. Lawrence and the Lake

Champlain in forty five Degrees of North Latitude, passes along

the High Lands which divide the rivers that empty themselves

into the said River St. Lawrence, from those which fall into the

Sea; and also along the North Coast of the Baye des Chaleurs,

and the Coast of the Gulph of St. Lawrence to Cape Rosieres, and

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from thence crossing the Mouth of the River St. Lawrence by the

West end of the Island of Anticosti, terminates at the aforesaid

River of St. John."

[Comment: This, of course, is but a small part of what we

now know as the Province of Quebec. The Quebec delineated by

the Proclamation consisted only of the Labrador coastline south

of St. John's River, a strip measuring less than 100 miles in

width along the north shore of the St. Lawrence River extending

as far west as Lake Nipissing and a narrower strip along the

south shore and the Gaspe peninsula. The rest of what is now

Quebec south of the St. Lawrence was part of either Nova Scotia

or of the original American colonies. The boundaries of Quebec

were greatly enlarged in 1774 to include most of the Great Lakes

drainage and the Ohio country, much of which was ceded to the

United States in 1783 after the Revolutionary War. Quebec was

then divided into Upper and Lower Canada in 1791, renamed

Ontario and Quebec at Confederation in 1867, and in 1912 assumed

more or less her present dimensions, but including most of

Labrador. Labrador was carved out of Quebec in a "settlement"

imposed by the Imperial Privy Council in 1927.]

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(3), (4) and (5) of the Proclamation define the territories

of East and West Florida and the Island of Grenada.

6) To promote fishing, all of the coastline of Labrador

from the River St. John to "Hudson's Straights," together with

the Islands of Anticosti and Madelaine, and all other smaller

Islands lying upon the said Coast, were placed under the care of

the Governor of Newfoundland.

7) The Islands of St. John's (now Prince Edward Island),

and Cape Breton or Isle Royale, with the lesser Islands adjacent

thereto, were transferred to Nova Scotia.

8) Deals with certain lands which were annexed to the then

Province of Georgia.

Part II "Our said new Governments" were:

1) given express Power and Direction to summon and call

General Assemblies within the said Governments respectively in

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such Manner and Form as is used and directed in those Colonies

and Provinces in America;

2) given power to "make, constitute, and ordain Laws,

Statutes, and Ordinances for the Public Peace, Welfare, and Good

Government of Our said Colonies, and of the People and

Inhabitants thereof, as near as may be agreeable to the Laws of

England, and under such Regulations and Restrictions as are used

in other Colonies: And in the mean Time and until such

Assemblies can be called as aforesaid, all Persons inhabiting

in, or resorting to Our said Colonies, may confide in Our Royal

Protection for the Enjoyment of the Benefit of the Laws of Our

Realm of England;"

3) given power to erect and constitute "Courts of

Judicature and Public Justice... for the hearing and determining

all Causes, as well Criminal as Civil, according to Law and

Equity, and as near as may be agreeable to the Laws of England,

with Liberty to all Persons who may think themselves aggrieved

by the Sentences of such Courts, in all Civil Cases, to appeal,

under the usual Limitations and Restrictions, to [the] Privy

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Council."

4) to give to the said Three New Colonies upon the

Continent, full Power and Authority to settle and agree with the

Inhabitants of Our said New Colonies, or with any other Persons

who shall resort thereto, for such Lands etc. "...as are now, or

hereafter shall be in Our Power to dispose of..." under such

conditions as shall be necessary and expedient for the Advantage

of the Grantees, and the Improvement and Settlement of the said

Colonies.

Part III testifies to the concern of the Sovereign for

officers and soldiers who fought for Britain, and directed the

Governors of the said Three New Colonies and other Governors on

the Continent to grant, without Fee or Reward, to such officers

and soldiers actually living in the colony, up to 5,000 acres of

land for field officers, 3,000 for Captains, etc., down to 50

acres for "every Private man," and there was a similar direction

for "sailors [who] served on Board Our Ships of War in North

America at the Times of the Reduction of Louisbourg and Quebec

in the late War...".

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Part IV The Preamble is significant and recites as follows:

"And whereas it is just and reasonable, and

essential to Our Interest and the Security

of Our Colonies, that the several Nations or

Tribes of Indians, with whom We are

connected, and who live under Our

Protection, should not be molested or

disturbed in the Possession of such Parts of

Our Dominions and Territories as, not having

been ceded to, or purchased by Us, are

reserved to them, or any of them, as their

Hunting Grounds;" (my emphasis).

This Part of the Proclamation goes on to declare it to be

"Our Royal Will and Pleasure":

(1) "that no Governor or Commander in Chief in

any of Our Colonies of Quebec, East Florida,

or West Florida, do presume, upon any

Pretence whatever, to grant Warrants of

Survey, or pass any Patents for Lands beyond

the Bounds of their respective Governments,

as described in their Commissions; as also,

that no Governor or Commander in Chief in

any of Our other Colonies or Plantations in

America, do presume, for the present, and

until Our further Pleasure be known, to

grant Warrants of Survey, or pass Patents

for any Lands beyond the Heads or Sources of

any of the Rivers which fall into the

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Atlantic Ocean from the West and North-West,

or upon any Lands whatever, which, not

having been ceded to, or purchased by Us as

aforesaid, are reserved to the said Indians,

or any of them."

(2) "for the present as aforesaid, to reserve

under Our Sovereignty, Protection, and

Dominion, for the Use of the said Indians,

all the Lands and Territories not included

within the Limits of Our said Three New

Governments, or within the Limits of the

Territory granted to the Hudson's Bay

Company, as also all the Lands and

Territories lying to the Westward of the

Sources of the Rivers which fall into the

Sea from the West and North West, as

aforesaid; and We do hereby strictly forbid,

on Pain of Our Displeasure, all Our loving

Subjects from making any Purchases or

Settlements whatever, or taking Possession

of any of the Lands above reserved, without

our especial Leave and Licence for that

Purpose first obtained.

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[Comment: this language has understandably caused a great

deal of learned discussion. The Preamble makes it clear these

lands are reserved to Indians "as their Hunting Grounds," and

Clause 1 precludes the Governors, etc. "for the present" not to

sell the said lands to others.]

Clause 2, clearly establishes a hunting reserve for the use

of the Indians.

The Proclamation then goes on to "further strictly enjoin

and require" everyone to vacate all lands reserved to the said

Indians as aforesaid. Then, after reciting that "great Frauds

and Abuses have been committed in the purchasing Lands of the

Indians," and in order to prevent such frauds in the future, and

"to the End that the Indians may be convinced of Our Justice and

determined Resolution to remove all reasonable Cause of

Discontent," gave certain directions which may be summarized as

follows:

(1) all private persons were strictly enjoined

from "purchasing" any land reserved for the

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Indians;

(2) if, at any time, any Indians should be

inclined to dispose of the said Lands, the

same shall be "purchased" only for the Crown

at a public meeting or Assembly held for

that purpose by the Governor or Commander in

Chief conformable to such Directions and

Instructions as they shall be given.

Notwithstanding the St. Catherine's Milling case and some

uncertain language such as "for the present, and until our

further Pleasure be known," and "dispose" rather than "sell" or

"convey" or "transfer," some commentators view the Proclamation

as creating a proprietary interest in the hunting ground.

While it is not necessary for my decision, it is my view

that the Proclamation, at most, created a right determinable at

the pleasure of the Crown to use Proclamation lands as "hunting

grounds." This was a right they could "dispose of," presumably

to a "purchase[er]" only by first transferring their interest to

the Crown in the manner required by the Proclamation. This was

obviously to ensure no private deals would be made for the lands

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of the hunting ground.

For the reasons which follow, however, it is not necessary

for me to decide this interesting question but I must observe

that this question was the subject of a an important comment by

the Privy Council in St. Catherine's Milling.

It was also declared that trade with the Indians should be

free and open to all Subjects, provided that everyone doing so

should take out a Licence for such purpose giving security to

observe such Regulations as may be imposed.

The last clause in the Proclamation required all officers

of the Crown to seize and apprehend all persons who, standing

charged with any offence, takes refuge in the said reserved

Territory, and to send them under a proper Guard to the Colony

where the Crime was committed "in order to take their Trial for

the same."

I have attached as Schedule 3 the generally approved copy

of the Royal Proclamation to which I have added paragraph

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letters and numbers which were used by Mr. Rush and Mr. Goldie

respectively.

I have no doubt that, apart from setting up governments for

the new colonies, the underlying purposes of the Proclamation

were firstly to pacify the frontier for defensive or military

purposes, and secondly to secure the markets of the North

American colonies for the manufactured products of the mother

country.

For the purposes of this case two questions arise: to what

lands, and to which Indians, does the Proclamation apply?

The territorial reach of the Royal Proclamation was the

subject of a great deal of evidence and argument at trial.

There seems to be little doubt that the eastern and western

boundaries of the affected lands were the Appalachians and the

Mississippi respectively. I am not concerned with the north-

east, that is north and east of Quebec, but there is controversy

about the north-west. In 1763 neither the northern limit or

headwaters of the Mississippi nor the southern boundary of

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Rupert's Land were known.

It was generally understood that the headwaters of the

Mississippi were situated in marshy ground between the 47th and

51st degrees of north latitude, and contemporary maps showed the

southern boundary of Rupert's Land west of the Great Lakes was

the 49th parallel. It was assumed that the Mississippi and the

49th intersected, or came so close as to make no difference. The

Historical Atlas of Canada, 1980, compiled by many of Canada's

leading historians and geographers adopts this assumption in its

Plate 42, which limits the territory of the Proclamation to the

St. Lawrence watershed and to other lands east of the

Mississippi.

Mr. Rush argues, however, that Rupert's Land should be much

more closely restricted to the immediate area of Hudson's Bay,

and he rejects the suggestion that it extended as far west as

the Mississippi. His argument leaves the western reach of the

Proclamation north of the headwaters of the Mississippi open-

ended either because Canada extended to the Pacific Coast, or

because the Proclamation extend that far.

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I do not propose minutely to consider every word of the

Proclamation because I am satisfied its language demonstrates

beyond any question that it applied only to the benefit of

certain lands and specified Indians.

As to lands, I have no doubt the lands of North America

north and west of the headwaters of the Mississippi were not

lands over which the British Crown had any authority in 1763,

except for Rupert's Land which was not within the reach of the

Proclamation.

The first mention of Indians in the Proclamation is in the

Preamble to Part IV which describes "the several Nations or

Tribes of Indians, with whom We are connected and who live under

Our Protection." Every reference to Indians in the balance of

the Proclamation refers to "the said Indians" indicating that

the only Indians embraced by the Proclamation are those with

whom the Crown was "connected" and who lived "under the

protection" of the Crown.

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Shortly before the date of the Royal Proclamation, Lord

Halifax, who succeeded Egremont as Secretary of State for the

Colonies, requested the Lords of Trade to prepare a plan for

Indian trade in North America. The Board sent a draft plan to

Sir William Johnson, presumably for his consideration, but the

plan was never implemented because of objections from traders

about its impracticability. For example, the plan required the

Indians to come to the forts in order to trade while it was

often found necessary, for the traders to go to the Indians. Ad

hoc arrangements were made in the field, but the idea of a plan

was revived after the extension of the Quebec Act of 1774 which

gave Quebec control of the fur trade and exempted that province

from the operation of the Royal Proclamation.

In 1777 a Plan was enacted in Quebec by Ordinance which

included the following terms:

(a) "1. That the Trade and Commerce with the several Tribes

of Indians in North America under the protection of His

Majesty shall be free and open to all His Majesty's

subjects, under the several Regulations and Restrictions

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hereafter mentioned so as not to interfere with the Charter

of the Hudson's Bay Company."

(b) "2. That for the better Regulation of this Trade, and

the Management of Indian Affairs in general, the British

Dominions in North America be divided into two Districts,

to comprehend and include the several Tribes mentioned in

the annexed Lists A. and B."

The Lists A. and B. include 54 tribes, 12 in the Southern

District and 42 in the Northern District. Of those in the

Northern District, all but the Sioux lived East of the

Mississippi. Many contemporary maps showed the Sioux living on

both sides of that river, and in a report dated August 13, 1763

Sir William Johnson identified them as residing westward of the

Mississippi, but of unknown numbers and much addicted to

"wandering." He also said they "...are little known to us" but

they had promised to send Deputies to him "in the Spring."

None of the tribes living in Rupert's Land (or on the

Canadian prairies or in British Columbia) were mentioned in the

Lists. In 1764 Sir William Johnson, in a letter to Thomas Gage,

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referred to the "Christeneaux" (Crees) North West of Lake

Superior who "had no hand in the War, [and] are rather remote to

give us much trouble...,"

I have given this question much careful thought,

particularly the plaintiffs' arguments that the Royal

Proclamation should be given a prospective construction so as to

include tribes of Indians with whom the Crown later became

"connected" or who later found themselves under its protection.

I am unable to accept this submission. The tenor of the

Proclamation in its historical setting clearly relates to the

practical problems facing the Crown in its then American

colonies. Two of the Indian clauses of the Proclamation

actually state that they are prescribed for "the present," and

a fair reading of the document makes it clear that it relates to

and applies for the use of the said Indians, who are those with

whom the Crown was connected, etc., and over whom the Crown then

exercised sovereignty. It must be remembered that Britain had

just obtained sovereignty of all of North America east of the

Mississippi, but its new and old colonial governments had

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jurisdiction over peoples and territories which were much more

limited. It is the Indians in these extra lands which were

included within the reach of the Proclamation. The Crown had no

connection with the Indian people west of the Rockies who owed

the Crown no actual or even notional allegiance, and were in no

way under its protection.

I have also considered recent jurisprudence such as

Nowegijick v. The Queen and many others which establish a contra

proferentes approach favourable to Indians. Nowegijick has

recently been considered by the Supreme Court of Canada in

Mitchell et al v. Peguis Indian Band, (1973) S.C.R. 577 where

LaForest J. suggests different principles may apply as between

treaties and statutes. He expressly disagrees that statutory

interpretations favourable to Indians must always be reached.

In a proper case I think it is appropriate to apply a

purposive approach to the language of an instrument such as the

Royal Proclamation which is much closer to a statute than to a

treaty. As I have said, its principal purposes were to

establish new governments, to settle present and anticipated

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difficulties on the frontier, and to encourage British

mercantilism by limiting the spread of settlement too distant

from coastal trade. The extension or application of the

Proclamation to unknown Indians in unknown lands beyond or

north-west of the Mississippi, particularly to the terra

incognita of the "Canadian West," in no way served those

purposes.

I am further satisfied beyond any doubt that the Crown was

not "connected" in any way with the Indians of the Canadian west

in 1763. They did not live under the Crown's protection, and

they owed the Crown no actual, legal or notional allegiance.

There is nothing which persuades me that this Proclamation,

either by its language or by the intention of the Crown, applies

to the benefit of the plaintiffs or to the lands of present day

British Columbia.

It is then argued that if the Royal Proclamation does not

apply to British Columbia, it is at least a statement of the

policy of the Crown calling for liberal and generous treatment

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of Indians. With respect, I do not understand how the

Proclamation, in areas beyond its reach, can be applied to

displace the common law which recognizes the right of the Crown

to create colonies and to settle them with its subjects. The

law, in my view, required the preservation of village sites

etc., and the policy of the Crown was from the beginning to

permit Indians the free use of all vacant Crown lands. In fact,

it was thought the policy of the new colony of British Columbia

was a liberal and generous one as will be shown although it did

not always work out that way. It is not always possible to

compare policies to determine which one is the most liberal.

4.

Conclusions

My first conclusion on this question, for the purposes of

this case, is that aboriginal interests arise by operation of

law upon indefinite, long aboriginal use of lands. Plaintiffs'

counsel referred to this as a common law right. It is probably

now convenient to so describe this kind of aboriginal right.

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Secondly, I have concluded that the Royal Proclamation,

1763 has never had any application or operation in British

Columbia.

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PART 11. THE RELEVANT POLITICAL HISTORY OF BRITISH COLUMBIA

IN THE PRE-COLONIAL AND COLONIAL PERIOD

Having discussed the creation of aboriginal interests, I

propose next to explore the history of the province in some

considerable, but by no means complete, detail. This is

necessary because, as Chief Justice Dickson has said, these

questions must be decided in an historical setting. Much of

what appears in this and the next art of this judgment have

already been touched upon in Part 4, but not in such detail as I

now propose.

I cannot deny that I shall omit a great deal of what others

may think is important. It is remarkable that so much of the

written record of these events has been preserved. Many

excellent histories have been written about the province but it

was not until recently have historians and other writers have

turned their attention specifically to Indian and land claim

matters.

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While it is not usually good practice, I propose to adopt a

"scissors and paste" format because I think it will be useful to

allow the participants -- those who were actually on the scene

dealing with these problems -- to be judged by their own words,

rather than by the reconstruction of writers. I shall, however,

interject myself into the narrative to offer comments as I think

necessary.

History has largely ignored Spanish and Russian exploration

of the Pacific coast of what is now British Columbia. I propose

to do the same although there can be no doubt some trade and

other goods started to arrive on the coast before contact and

some filtered into the interior. However, I do not recall any

evidence of Russian settlements on our coast prior to the

arrival of Capt. Cook in 1778.

The convenient starting point, therefore, must be Captain

Cook's visit to Nootka in 1778. His reports reached London in

1780. That really started the North Pacific sea otter trade

which exploded in the middle years of that decade. At about the

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same time, or in quick succession after Cook, came (a) other

Spanish and British exploration of the coast (which was,

incredibly, all explored by 1794); (b) the overland voyage to

the coast by Alexander Mackenzie in 1791 (he missed meeting

Vancouver in Dean Channel by less than a month); and (c) the

exploits of Simon Fraser in establishing posts at Fort MacLeod

in 1805, at Fort St. James and Fort Fraser in 1806, and his

remarkable trip down his river to its mouth and back also in

1806.

These endeavours all foreshadowed eventual British

sovereignty. Its first legal manifestation was probably An Act

for Extending the Jurisdiction of the Courts, 1803, 43 Geo. III,

c. 138 (the "1803 Act"), and the later An Act for Regulating the

Fur Trade and Establishing a Criminal and Civil Jurisdiction

Within Certain Parts of North America, 1821, 1 & 2 Geo. IV, c.

66 (the "1821 Act"). Both of these statutes were repealed by

the Act establishing the colony of British Columbia in 1858.

Both the 1803 and 1821 Acts conferred upon the Courts of the

provinces of Upper and Lower Canada extra-territorial

jurisdiction to deal with Crimes and Offenses committed "...

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within any of the Indian territories, or other parts of America

not within the limits of either of the said provinces...," and

within Rupert's Land.

Captain Vancouver actually explored the lower reaches of

the Columbia River in the 1790's and the Oregon country later

attracted traders both from Britain's North American colonies as

well as from the United States, who in 1819 took over all of

Spain's "pretensions" to the coast.

After the war of 1812, a Convention was reached in 1818

which settled the 49th parallel as the boundary between Great

Britain and the United States west of Lake of the Woods to the

"Stony Mountains," as the Rockies were then known.

This Convention included a "stand still" agreement to last

for 10 years (which was extended indefinitely in 1827) for any

country that might be claimed by either of them on the north-

west coast of America westward of the Stony Mountains. It was

agreed that the citizens of each country would have free access

to such country without prejudice to the claims of the other.

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In 1821 the Czar of Imperial Russia issued a Ukase claiming

exclusive rights to trade on the Pacific coast as far south as

the 51st parallel. This "pretence" was disputed by both the

United States and Great Britain and in 1825 Britain and Russia

agreed on the present boundary between Canada and Alaska as the

northerly limits of Great Britain's possessions.

Because of the 1818 and 1827 standstill agreements, it must

be recognized that Great Britain did not have exclusive

sovereignty over southern British Columbia until the Oregon

Boundary Treaty of 1846.

As to northern British Columbia, Great Britain granted a 21

year monopoly (renewed in 1838) over her possessions north and

west of the United States but disputes continued with the United

States until the Oregon Boundary Treaty in 1846.

Also in 1821 the Company assigned James Douglas to its New

Caledonia operations. Douglas served there until 1830 when he

was transferred to Fort Vancouver on the Columbia River and

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became its Chief Trader in 1834 and Chief Factor in 1839.

Anticipating an unfavourable outcome of boundary negotiations,

the Company sent him in 1842 to reconnoitre Vancouver's Island

(as it was then known), where the Company planned to relocate

its operations. The "Introduction" to the Fort Victoria Papers,

1846 - 1851, suggests that as late as 1852 even the Indians knew

"little about the interior" of the Island, and the Cowichan

Valley was not "discovered" until 1851. Under the directions of

Douglas, the Fort at Victoria was completed in 1843.

It is significant, chronologically, to note that in 1844 a

Select Committee of the Imperial House of Commons published a

Report dealing with the Treaty of Waitangi, 1840 which raised

many questions about aboriginal rights to lands in New Zealand.

This was mentioned in the evidence and argument in this case and

it will be discussed later. I mention it here only because it

may have influenced Douglas in the views he later expressed

about Indian matters.

In 1846 the Oregon Treaty divided the United States and

British territory west of the Rockies at the 49th parallel, but

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the Treaty left Vancouver's Island in British hands (although

the actual boundary through the inland sea was not settled until

1898).

The Oregon Boundary Treaty, 1846 has been judicially

accepted as establishing, conclusively, British sovereignty over

what is now British Columbia: Reference re Ownership of the Bed

of the Straight of Georgia, [1984] 1 S.C.R. 388, p. 402 to 406.

Occupation of sorts started in New Caledonia, as has been

mentioned, in 1805 - 06 with the establishment of Posts by Simon

Fraser. This process continued with posts at Fort Langley in

the Fraser Valley in 1827, at Fort Kilmaurs on Babine Lake in

1822, Fort Connolly on Bear Lake in 1826, Fort McLaughlin at

Bella Bella in 1834, Fort Simpson near Prince Rupert in 1835,

and the new Fort Babine was established in 1836 at the north end

of Babine Lake, replacing Fort Kilmaurs which was some distance

further south on the same lake. As just mentioned, the Fort at

Victoria was completed in 1843.

In 1849, Douglas actually moved the headquarters of the

Company to Fort Victoria with its gold and "collected treasures"

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valued at about £30,000, upon which Fort Victoria superseded

Fort Vancouver as the Company's Pacific headquarters.

Because of the view I have of this case, I do not think it

is necessary to make a specific finding about a date of British

sovereignty over the northern part of the province. No specific

argument was made by counsel on this question. For practical

purposes, especially in the territory it could well have been as

early as the 1820's but legally it may not have been until the

creation of the colony in 1858. 1846 was the date chosen by

Judson J. in Calder. In my view the actual date of British

sovereignty, whether it be the earliest date of 1803 or the

latest date of 1858, or somewhere in between makes no

difference.

Fearing an influx of Americans, and probably influenced

greatly by the Company, the Imperial Government decided to

create a Colony of Vancouver Island. This was done in an

unusual way. First, by Royal Grant dated January 13, 1849, the

Crown conveyed Vancouver's Island to the Company. Its recitals

and operative parts make its intention clear. These recitals

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mention the Royal Charter of 1670 for Rupert's Land; the 1803

Act; the 1821 Act; the 1838 Exclusive Licence for trade with the

Indians; the Oregon Boundary Treaty of 1846; the fact that lands

and territories of the Crown lie westward and northward of

Rupert's Land and eastward of the territories defined by the

Oregon Boundary Treaty; the trading of the Company beyond the

limits of its Charter and licence; the erection of forts and

posts on Crown lands (including Vancouver's Island); and the

benefits to peace, advancement of colonization, the promotion

and encouragement of trade, and the protection and welfare of

the Indians residing within Vancouver's Island if such island

were colonized. In other words, the Crown wished the island to

be settled by British settlers.

Secondly, in the same year of 1849 the Imperial Crown

established the Colony of Vancouver Island. It had been

understood that Douglas would be appointed Governor while

continuing as Chief Factor of the Hudson's Bay Company. It was

thought better, however, to appoint a non-Company man as

Governor, so the first incumbent was Richard Blanshard. His

Commission, as with Douglas's subsequent Commission, was

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entirely silent on the question of Indian matters.

The Grant conveyed Vancouver's Island to the Company to be

held on the same terms as it held Rupert's Land ("... in free

and common soccage ...") which is almost, but not quite, fee

simple. The Grant clearly contemplated settlement, for it

included a proviso that the Grant could be revoked if a

settlement of resident colonists had not been established within

five years. There is an anonymous document, perhaps a briefing

paper, dated March 1849, which suggests a recognition of

aboriginal interests. It states in part:

"With regard to the Indians it has

been thought on the whole the better course

to make no stipulations respecting them in

the grant. Little is in fact known of the

natives of this island, by the Company or by

any one else. Whether they are numerous or

few, strong or weak: whether or not they use

the land for such purposes as would render

the reservation of a large portion of it for

their use important or not, are questions

which we have not the full materials to

answer. Under these circumstances, any

provisions that could be made for a people

so distant and so imperfectly known might

turn out impediments in the way of

colonization, without any real advantage to

themselves. And it is thought the more safe

to leave this matter to the Company,

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inasmuch as its dealings with and knowledge

of the North American Indians are of course

very extensive; and inasmuch as,

notwithstanding the many accusations of

which that Company has been the object, no

distinct charges of cruelty or misconduct

toward the Indian tribes under its control

have been made out by reasonable evidence;

while every year brings painful account of

mutual wrongs and mutual revenge between

Indians and whites from the neighbouring

regions not under their control. It must

however be added that in parting with the

land of the island Her Majesty parts only

with her own right therein, and that

whatever measures she was bound to take in

order to extinguish the Indian title are

equally obligatory on the Company."

(Ex.1039-16)

The meaning of this is difficult to discern because of a

lack of precision in the language which is of crucial importance

in this case. It could mean either that the Indians had a claim

of ownership to, or some lesser interest in the entire Island,

or only with respect to the parts actually used by them. It is

apparently an incomplete document, probably intended for the use

of the Colonial Secretary, Lord Grey, who had the responsibility

of defending the grant in the debate that took place in

Parliament in 1848. In 1846, in connection with New Zealand, he

expressed the following views in writing:

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"The Queen, as entitled in right of her

Crown to any waste lands in the colony, is

free to make whatever rules Her Majesty may

see fit on the subject. The accompanying

Charter accordingly authorizes the Governor

to alienate such land. The accompanying

instructions direct how that power is to be

used. I proceed to explain the motives by

which those instructions have been dictated.

The opinion assumed, rather than

advocated, by a large class of writers on

this and kindred subjects is, that the

aboriginal inhabitants of any country are

the proprietors of every part of its soil

which they have been accustomed to make any

use of, or to which they have been

accustomed to assert any title. This claim

is represented as sacred, however ignorant

such natives may be of the arts or of the

habits of civilized life, however small the

number of their tribes, however unsettled

their abodes, and however imperfect or

occasional the uses they make of the land.

Whether they are nomadic tribes depasturing

cattle or hunters living by the chase, or

fishermen frequenting the sea-coasts or the

banks of rivers, the proprietary title in

question is alike ascribed to them all.

From this doctrine, whether it is maintained

on the grounds of religion or of morality,

or of expediency, I entirely dissent. What

I hold to be the true principle with regard

to property in land is that which I find

laid down in the following passage from Dr.

Arnold...

Men were to subdue the earth: that is, to

make it by their labour what it would not

have been by itself; and with the labour so

bestowed upon it came the right of property

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in it. Thus every land which is inhabited

at all belongs to somebody; that is, there

is either some one person or family, or

tribe, or nation who have a greater right to

it than any one else has; it does not and

cannot belong to everybody. But so much

does the right of property go along with

labour, that civilized nations have never

scrupled to take possession of countries

inhabited only by tribes of savages--country

which have been hunted over, but never

subdued or cultivated. It is true, they

have often gone further and settled

themselves in countries which were

cultivated, and then it becomes a robbery;

but when our fathers went to America and

took possession of the mere hunting-grounds

of the Indians--of lands on which man had

hitherto bestowed no labour--they only

exercised a right which God has inseparably

united with industry and knowledge..." (Ex.

1251-5)

It is argued by the province that the grant of Vancouver's

Island to the Company for the purposes of settlement, and

without any mention of Indians, is inconsistent with the

existence of any aboriginal interests. Authorities such as

Guerin make it impossible for me to accept that submission, but

the foregoing passage seems to limit such interests to

cultivated areas.

There is no doubt that Douglas, from the very beginning of

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his tenure first as Chief Factor and later as Governor of the

new Colonies, was concerned about the question of Indian

interests. As early as 1849, in a letter to Barclay, who was an

officer of the company in London, he said:

"Some arrangement should be made as

soon as possible with the native Tribes for

the purchase of their lands, ..."

He added:

"I would also strongly recommend,

equally as a measure of justice, and from a

regard to the future peace of the colony,

that the Indians' Fisheries, Village Sites

and Fields, should be reserved for their

benefit and fully secured to them by law."

(Ex. 1039-21)

As will be seen, much difficulty arises from the lack of

precise terminology. In reply, for example, Barclay stated:

"The natives will be confirmed in the

possession of their lands as long as they

occupy and cultivate them themselves, but

will not be allowed to sell or dispose of

them to any private person, the right to the

entire soil having been granted to the

Company by the Crown." (Ex. 1039-22)

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Even a literal reading of this is inconclusive but it

indicates some form of Indian interest existing alongside the

ownership of the soil in the Crown. Barclay's viewpoint was

undoubtedly shaped in part by the Report of the Select Committee

of the House of Commons, to which Report he actually referred

when he stated:

"With respect to the rights of the

natives you will have to confer with the

Chiefs of the tribes on that subject, and in

your negotiations with them you are to

consider the natives as the rightful

possessors of such lands only as they

occupied by cultivation, or had houses built

on at the time when the Island came under

the undivided sovereignty of Great Britain

in 1846. All other land is to be regarded

as waste, and applicable to the purposes of

colonization. ...

A Committee of the House of Commons, which

sat upon some claims of the New Zealand

Company, reported in reference to native

rights in general that 'the uncivilized

inhabitants of any country have but a

qualified Dominion over it, or a right of

occupancy only, and that until they

establish a settled form of Government and

subjugate the ground to their own uses by

the cultivation of it, they cannot grant to

individuals, not of their own tribe, any

portion of it, for the simple reason that

they have not themselves any individual

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property in it."

The plaintiffs take issue with much of this, referring to

the decision of the United States Supreme Court in Mitchell v.

U.S. (1834) 9 Pet. 711 , where it was stated at p. 746:

"Indian possession or occupation was

considered with reference to their habits

and modes of life; their hunting grounds

were as much in their actual possession as

the clear fields of the whites."

Blackburn J. in Milirrpum, at p. 134 called this statement

in Mitchell the "high water mark of support for the status of

Indian occupancy" but he goes on to comment that,

notwithstanding the eloquence of the dicta, there are no cases

where Indians were able to uphold their right as if it were a

fee simple.

By his Commission and Instructions Governor Blanshard was

authorized to establish a General Assembly of the inhabitants

"owning twenty or more acres of freehold land." In point of

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fact, however, control of the land of the colony rested with the

Company which regarded itself as the agent or the Crown for such

purpose.

Between 1850 and 1854, with the approval of the Committee

of the Company in London, Douglas entered into several

agreements (some of them on one memorable all-night

negotiation), which qualify as treaties with several Indian

tribes or bands mainly in the vicinity of Victoria but also

extending up-Island. The first 11 treaties were completed in

1850 and 1852 which was before Douglas became governor of the

Colony. There is no indication he was acting on instructions

from the Colonial Office, or that it was informed of his

activities in this connection. The following is typical of the

language of these treaties:

"Swengwhung Tribe -- Victoria Peninsula,

South of Colquitz Know all men that we, the

chiefs and people of the family of

Swengwhung, who have signed our names and

made our marks to this deed on the thirtieth

day of April, one thousand eight hundred and

fifty, do consent to surrender, entirely and

for ever, to James Douglas, the agent of the

Hudson's Bay Company in Vancouver Island,

that is to say, for the Governor, Deputy

Governor, and Committee of the same, the

whole of the lands situate and lying between

the Island of the Dead, in the Arm or Inlet

of Camosun, where the Kosampsom lands

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terminate, extending east to the Fountain

Ridge, and following it to its termination

on the Straits of Juan de Fuca, in the Bay

immediately east of Clover Point, including

all the country between that line and the

Inlet of Camosun. The condition of our

understanding of this sale is this, that our

village sites and enclosed fields, are to be

kept for our own use, for the use of our

children, and for those who may follow after

us; and the land shall be properly surveyed

hereafter. It is understood, however, that

the land itself, with these small

exceptions, becomes the entire property of

the white people forever; it is also

understood that we are at liberty to hunt

over the unoccupied lands, and to carry on

our fisheries as formerly. We have

received, as payment, Seventy-five pounds

sterling. In token whereof, we have signed

our names and made our marks, at Fort

Victoria, on the thirtieth day of April, one

thousand eight hundred and fifty. (Signed)

Snaw-nuck his x mark, and 29 others."

(Ex. 1039-23, p.6)

By this time Governor Blanshard had arrived in the

colony. No laws relating to Indians were enacted during his

tenure which lasted until May, 1851 when Douglas was appointed

Governor. Douglas remained, however, also as Chief Factor for

the Company, and he continued in both capacities until 1858. He

continued, after becoming Governor, to make treaties or

agreements on Vancouver Island with various Indian bands,

including 6,000 acres of coal-bearing lands near Nanaimo in

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1852. Meanwhile, land sales, presumably to settlers, must have

been brisk as Douglas stated in the fall of 1851 that the colony

had a large surplus arising from the sale of land.

During this period as well, settlement was beginning on the

Mainland where Douglas, of course, had considerable influence in

his capacity with the Company. In addition, there was great but

short-lived excitement following the discovery of gold in the

Queen Charlotte Islands which led to Douglas' appointment as

Lieutenant-Governor for those islands in 1853. This permitted

him to license miners which was good experience for what was to

come a few years later.

In 1853 Douglas reported that the colony "continues in

a state of profound tranquillity." In 1854, however, he

reported on the outbreak of serious hostilities in Oregon

between Indians and settlers, including several massacres of

American troops and settlers. These uprisings concerned him

greatly both because of his long and continuing association with

the Hudson's Bay Company in Oregon, where it still had

establishments, and because of the possibility of these kinds of

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difficulties spreading northwards. This uneasy state continued

through the 1850's although in January 1857 Douglas reported:

"Peace and plenty reign throughout the

settlements. Trade is rather dull, yet

there is no want of employment for the

labouring classes in the Colony. The native

Indian Tribes are quiet and friendly in

their deportment and intercourse with the

settlers. In fact not a single complaint

has been made against any Indian of this

Colony, for the last two months."

In 1857 however, gold was discovered on the Thompson River

which, Douglas wrote, was causing much excitement in Washington

and Oregon, and he had no doubt "a great number of people from

those territories will be attracted thither with the return of

the fine weather in the spring." Accordingly he issued a

proclamation dated December 28, 1857 "...declaring the rights of

the Crown in respect to gold ... and forbidding all persons to

dig or disturb the soil in search of Gold until authorized on

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that behalf by Her Majesty's Colonial Government," and he sent a

draft to London for approval. As the mainland was not then a

part of the colony, there was no local authority to make this

Proclamation, but Douglas did it anyway and his actions were

quickly ratified.

In February 1858 there was concern that some of the

followers of Brigham Young might be intending to immigrate to

British Columbia. Douglas was instructed:

"Should they apply for admission to

occupy any portion of the North Western

Territory peacefully and as a community or

in scattered communities; you will remember

that the soil of this territory belongs to

the Crown subject only to such rights as may

be recognized in the Indian tribes (who are

not authorized to part with the soil without

permission of the Crown) and to the trading

rights of the Company." (Ex. 1039-39)

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In the same dispatch, however, Douglas was instructed that

while no rights of occupation whatsoever were to be granted to

Mormons as a group, it was added:

"If, however, individuals or families,

flying from Utah, should peacefully apply

for admission into Vancouver's Island, the

case is different... The acquisition of land

for purposes of settlement under the

ordinary rules (and subject of course to the

law of the islands to naturalization) is not

in the view of Her Majesty's Government to

be refused, merely because the parties

applying have been members of that

territorial community against which the arms

of the United states are now

directed...Polygamy is not tolerated etc.."

It seems clear that, in the view of the Colonial office,

the rights of the Indians, whatever they may have been, did not

preclude opportunities for settlement upon the lands of the

Colony.

In April, Douglas reported more fully, explaining that most

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of the gold from the Thompson River findings had been discovered

and exploited by Indians who had produced about 800 ounces, and

who, by force of numbers, had been able to keep most whites out

of this activity. Douglas reported that he expected "affrays

and collisions with the whites" as their numbers increased,

particularly "adventurers from Vancouver's Island and the United

States." He predicted that sooner or later the intervention of

Her Majesty's government would be required to maintain peace.

Douglas also reported the Indians had recently discovered a

valuable deposit of gold on the banks of the Fraser above and

below the "forks" (presumably the forks of the Fraser and

Thompson Rivers).

In May 1858 a command of about 400 United States soldiers

was attacked while crossing a river and routed with a loss of 53

troops by a group of 1,500 Indians near the junction of the

Snake and Columbia Rivers. This came to Douglas's attention at

a time when he experienced some similar and potentially

dangerous circumstances at Hill's Bar. His report to Lord

Stanley on June 10, 1858 said:

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"My own opinion is, that the stream of

immigration is setting so powerfully towards

Fraser's River that it is impossible to

arrest its course, and that the population

thus formed will occupy the land as

squatters, if they cannot obtain a title by

legal means.

I think it therefore a measure of obvious

necessity that the whole country be

immediately thrown open for settlement, and

that the land be surveyed, and sold at a

fixed rate, not to exceed twenty shillings

an acre. By that means, together with the

imposition of a Customs' duty on imports, a

duty on licences to miners, and other taxes,

a large revenue might be collected for the

service of Government." (Ex. 1039-1, p. 13)

Possibly because he had just received a copy of an American

newspaper report of the difficulties just mentioned, he wrote

again on June 15:

"On the arrival of our party at 'Hill's

Bar,' the white miners were in a state of

great alarm on account of a serious affray

which had just occurred with the native

Indians, who mustered under arms in a

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tumultuous manner, and threatened to make a

clean sweep of the whole body of miners

assembled there.

The quarrel arose out of a series of

provocations on both sides, and from the

jealousy of the savages, who naturally feel

annoyed at the large quantities of gold

taken from their country by the white

miners.

I lectured them soundly about their conduct

on that occasion, and took the leader in the

affray, an Indian highly connected in their

way, and of great influence, resolution, and

energy of character, into the Government

service, and found him exceedingly useful in

settling other Indian difficulties.

I also spoke with great plainness of speech

to the white miners, who were nearly all

foreigners, representing almost every nation

in Europe. I refused to grant them any

rights of occupation to the soil, and told

them distinctly that Her Majesty's

Government ignored their very existence in

that part of the country, which was not open

for the purposes of settlement, and they

were permitted to remain there merely on

sufferance; that no abuses would be

tolerated; and that the laws would protect

the rights of the Indian, no less than those

of the white man.

....

The recent defeat of Colonel Steptoe's

detachments of United States troops,

consisting of dragoons and infantry, by the

Indians of Oregon territory, has greatly

increased the natural audacity of the

savage, and the difficulty of managing them.

It will require, I fear, the nicest tact to

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avoid a disastrous Indian war." (Id. p. 16)

Needless to say, colonial officers regarded much of the

foregoing as "a dangerous state of things." They would have

preferred to issue a Lieutenant-Governor's Commission but there

was a legal impediment to that course which required the passage

of a Bill which was before Parliament. On July 1, 1858 Lytton

wrote to Douglas, with reference to the influx of miners, and

the interest of the Hudson's Bay Company, that nothing must be

done which would be:

"...prejudicial to the establishment of

Civil Government in the country lying near

the Fraser's River, and...All claims and

interests must be subordinated to that

policy which is to be found in the peopling

and opening up of the new country, with the

intention of consolidating it as an integral

and important part of the British Empire."

(Id. p. 41)

By this time a decision had been made to create a new

colony. In the proceedings of the House of Commons on July 8,

1858, the Colonial Secretary made it clear that the purpose was

"...to establish a settled form of government in that part of

British North America to which circumstances were directing the

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steps of large bodies of men." It was further stated that,

"there [was] now a stream of adventurers setting in towards that

part of the world, and therefore it was indispensable that some

steps should be taken to establish a settled form of law."

Some fairly strong language was used in Parliament to

describe these:

"...settlers so wild, so miscellaneous,

perhaps so transitory, and in a form of

society so crude...a motley inundation of

immigrant diggers, of whose antecedents we

are wholly ignorant, and of whom perhaps,

few, if any, have any intention to become

resident colonists and British subjects."

...

"It was most important there should be

a strong Executive to control the Indians,

and to prevent the white settlers from

molesting them. The right Hon. Gentleman

had adverted to the soil and climate of the

country, the excellence of which is was

impossible to deny, and he (Mr. Labouchiere,

a former Colonial officer) believed that in

the course of time Vancouver's Island and

the adjacent territories were destined to be

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the homes of a large, industrious and

flourishing population." (Hansard, July 8,

1858, p. 1102-08).

In a Dispatch dated July 16, 1858, Lord Lytton advised

Douglas that a bill was in progress through Parliament to remove

obstacles to the creation of a "Government suited to the

exigencies of so peculiar a case, over the territory now

resorted to...by multitudes whom the gold digging on Fraser's

River have attracted." The bill was proposed to appoint him

Governor "in conjunction with your separate Commission as

Governor of Vancouver's Island", and that the Crown proposed to

sever its connection with the Hudson's Bay Company and to resume

the "grant of the soil."

In the meantime, Douglas was acting almost on his own by

issuing Regulations described in his July 26, 1858 dispatch

designed to control, if possible, "the practice of squatting on

Crown land, or the lawless occupation of a country."

On July 31, 1858, anticipating the passage of the enabling

legislation creating a new mainland colony, Lord Lytton sent an

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important dispatch to Douglas informing him that the Queen had

been pleased to name her new colony "British Columbia" and he

went on to express a number of views, two of which are

significant indicators of the views the Imperial Government took

towards its new colony.

First he commented upon the prospects for settlement. He

said:

"This territory combines, in a remarkable

degree, the advantage of fertile lands, fine

timber, adjacent harbours, rivers, together

with rich mineral products. These last,

which have led to the large immigration of

which all accounts speak, furnish the

Government with the means of raising a

Revenue which will at once defray the

necessary expenses of an establishment.

....

The disposal also of public lands, and

especially of town lots, for which I am led

to believe there will be a great demand,

will afford a rapid means of obtaining funds

applicable to the general purposes of the

Colony.

....

I have informed you in my Dispatch of 30th

instant, that a party of Royal Engineers

will be dispatched to the Colony

immediately. It will devolve upon them to

survey those parts of the country which may

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be considered most suitable for settlement,

to mark out allotments of land for public

purposes, to suggest a site for the seat of

Government, to point out where roads should

be made, and to render you such assistance

as may be in their power, on the distinct

understanding, however, that this force is

to be maintained at the Imperial cost for

only a limited period, and that, if required

afterwards, the Colony will have to defray

the expense thereof."

Secondly Lord Lytton spoke of the humane treatment of the

Indians. He said:

"I have to enjoin upon you to consider

the best and most humane means of dealing

with the Native Indians. The feelings of

this country would be strongly opposed to

the adoption of any arbitrary or oppressive

measures towards them.

....

Let me not omit to observe, that it should

be an invariable condition, in all bargains

or treaties with the Natives for the cession

of lands possessed by them, that subsistence

should be supplied to them in some other

shape, and above all, that it is the earnest

desire of Her Majesty's Government that your

early attention should be given to the best

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means of diffusing the blessings of the

Christian Religion and of Civilization among

the Natives." (my emphasis) (Ex. 1039-40)

I add the emphasis to the above quote because it raises

again the ambiguity and problem of definition that is so

important in this connection regarding what lands are to be

considered in possession of the Indians. Hall J. in Calder

raised this question and answered it by suggesting that these

words mean the Indians must have had something to cede. But

with respect, that does not identify the lands which were in the

possession of the Indians, nor the nature of their interest, if

any. It could hardly refer to the whole country or to an

interest which would interfere with the ongoing settlement of

the proposed new colony.

In his reply dated October 11, 1858, before he received his

Commission and Instructions which I shall mention in a moment,

Douglas wrote:

"I shall not fail to give the fullest

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scope to your humane consideration for the

improvement of the native Indian tribes, and

shall take care that all their civil and

agrarian rights be protected. I have in

fact already taken measures, as far as

possible, to prevent collisions between

those tribes and the whites, and have

impressed upon the miners the great fact

that the law will protect the Indian equally

with the white man, and regard him in all

respects as a fellow subject. That

principle being admitted will go far towards

the well-being of the Indian tribes, and

securing the peace of the country." (Ex.

1184-16).

On Aug. 14, 1858 Lord Lytton sent still another dispatch in

which he authorized Douglas to sell land for agricultural

purposes "wherever a demand for it shall arise," but he

cautioned against selling land for town purposes until it has

been surveyed, or ready for survey, and then only at a high

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upset price of at least £1 per acre so as to discourage

speculation.

Some time prior to September 2, 1858 Lord Lytton received a

communication from the Aborigines Protection Society (of

England) expressing serious concern about the possibility of

hostilities between Indians and American miners on Fraser's

River, and asserting Native title greater than that of the

"English Government or foreign adventurers." Without adopting

the views of the Society, this communication was sent to Douglas

for his comments.

In view of these and other pronouncements from both sides

of the world, and in view of the obvious intention of the Crown

to encourage the early settlement of the proposed new colony, I

conclude that these references must be construed to refer to

lands actually possessed by the Indians, (that is their villages

and cultivated fields, etc.).

In these circumstances, Douglas was made Governor of the

new colony while continuing in that post on Vancouver Island

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with extraordinary powers to make laws. In A.G.B.C. v. A.G.

Can., (Deadman's Island Case) [1906], A.C. 552 (J.C.P.C.),

Viscount Dunedin said on this question:

"...As to his powers, it may at once be

said they were absolutely autocratic; he

represented the Crown in every particular,

and was, in fact, the law. At the same time

careful dispatches were sent to him by the

Colonial Minister of the day laying down in

explicit terms the methods of administration

which it was desired he should follow."

The foregoing reflects the language of the Imperial Act to

Provide for the Government of British Columbia, dated August 2,

1859 which provided:

"It shall be lawful for Her Majesty, by any

Order or Orders to be by Her from time to

time made, with the advice of Her Privy

Council, to make, ordain, and establish, and

(subject to such conditions or restrictions

as to Her shall seem meet) to authorize and

empower such officer as She may from time to

time appoint as Governor of British Columbia

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to make provision for the administration of

justice therein, and generally to make,

ordain, and establish all such laws,

institutions, and ordinances as may be

necessary for the peace, order, and good

government of Her Majesty's subjects and

others therein; provided that all such

Orders in Council, and all laws and

ordinances so to be made as aforesaid, shall

be laid before both Houses of Parliament as

soon as conveniently may be after the making

and enactment thereof respectively."

That Act also empowered the Crown to constitute a

legislature "to make laws for the peace order and good

government of [the colony]," which did not occur until 1864.

The Act creating the colony is dated August 2, 1858 but the

Governor's Commission and Instructions are not dated until

September 2, 1858. These important documents make no mention of

Indians or Indian lands even though it was believed from the

evidence of Sir George Simpson in Parliament the previous year

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that they were warlike and difficult to manage, and numbered

about 80,000 west of the Mountains.

Mr. Rush offered an interesting argument based not on the

Governor's Instructions but rather upon his Commission which

precluded him from making "...any law of an extraordinary nature

and importance whereby our prerogative, or the rights and

property of our subjects residing in our said colony ... may be

prejudiced." He argues from this that the Governor had no power

to make any law which would extinguish aboriginal interests of

the Indians who were subjects of the Crown.

This argument presupposes aboriginal interests are not

subject to extinguishment whereas it seems incontestable that

they were extinguishable at the option of the Crown. The

contrary has never been suggested in any of the Canadian

authorities such as St. Catherine's Milling, Calder and Sparrow.

In any event, as will be shown, most of the Colonial legislation

was also enacted by the Imperial Parliament.

Upon receiving Lytton's July 1st dispatch, Douglas

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responded on October 12, 1858 about what he had done at Fort

Hope with a view to settlement. He said:

"Having just ascertained, from your

Dispatch of the lst of July last, that it

was the wish of Her Majesty's Government to

colonize the country and develop its

resources, I proposed to the inhabitants of

the place to lay out certain lands as a town

site, and to grant a right of occupation for

town lots, under a lease terminable at the

pleasure of the Crown, and to be held at a

monthly rental of 4ls. 8d. sterling, payable

in advance, and with the understanding that

the holder would be allowed a pre-emption

right of purchase when the land is sold, in

which case the sum of monthly rent paid

would be considered as part of the purchase

money."

In another dispatch dated Oct. 12, 1858, Douglas described

difficulties encountered on a visit to Hope where he found the

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Indians "much incensed" against the miners, and after hearing

their complaints, "irresistibly [concluded] that the improper

use of spirituous liquors had caused many of the evils they

complained of."

He accordingly issued a proclamation establishing the

offence of giving or selling spirituous liquors to Indians which

he said he thought would be "of great advantageous to the whites

and Indians." We shall never know if this was a wise or unwise

decision. Certainly he thought it salutary, but it was also

patronizing and discriminatory, and a foreshadowing of things to

come.

In the same dispatch Douglas also reported on his

activities at Yale as follows:

"We found a large assemblage of people

at Fort Yale expecting our arrival with some

anxiety, in order to ascertain the views of

Her Majesty's Government.

According to their earnest request I met

them the following day at a public meeting,

and delivered a short address, in which I

announced the instructions I had received

from Her Majesty's Government, as contained

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in your Despatch of the lst of July last,

and the tidings were received with

satisfaction.

The same process of organization was gone

through here as at Fort Hope. The Indians

were assembled, and made no secret of their

dislike to their white visitors. They had

many complaints of maltreatment, and in all

cases where redress was possible it was

granted without delay. One small party of

those natives laid claim to a particular

part of the river, which they wished to be

reserved for their own purposes, a request

which was immediately granted, the space

staked off, and the miners who had taken

claims there were immediately removed, and

public notice given that the place was

reserved for the Indians, and that no one

would be allowed to occupy it without their

consent.

A town site was also marked out at Fort

Yale, and leases of town lots issued to all

persons desirous of settling and building

there, upon the same conditions and at the

same charge as the town lots disposed of at

Fort Hope.

Several spirit licences were also issued, to

check the profuse and illegal sale of ardent

spirits....

Information was received from Victoria,

during my stay at Fort Yale, that some

speculators, taking advantage of my absence,

had squatted on a valuable tract of public

land near the mouth of Fraser's River,

commonly known as the site of old Fort

Langley, and employed surveyors at a great

expense to lay it out into building lots,

which they were offering for sale, hoping by

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that means to interest a sufficient number

of persons in the scheme as would overawe

the Government and induce a confirmation of

their title. To put the public upon their

guard, and to defeat a swindling scheme,

which, if tolerated, would give rise to

other nefarious transactions of the same

kind, I thought it necessary to issue a

proclamation, of which a copy is

transmitted, warning all persons that the

Crown lands in that part of the country had

not been alienated or in any way encumbered,

that any persons making fraudulent sales of

land appertaining to the Crown, would be

punished as the law directs, and persons

holding such lands would be summarily

ejected.

That proclamation was immediately

forwarded to Victoria and published, with so

decided effect on the public mind as

entirely to break up the scheme, and we are

now laying off the site of Old Fort Langley

in town lots, to be sold for account and for

the benefit of the public revenue."

(Transcript, p. 27,695 to 27,696)

On November 5, 1858 Douglas responded to the letter of the

Aborigines Society which had been sent to him by Lord Lytton on

September 2nd. He replied:

"While you do not wish to be understood

as adopting the views of the Society as the

means by which that may be best

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accomplished, you express a wish that the

subject should have my prompt and careful

consideration, and I shall not fail to give

the fullest effect to your instructions on

that head, as soon as the present pressure

of business has somewhat abated. I may,

however, remark that the native Indian tribe

are protected in all their interests to the

utmost extent of our present means." (Ex.

1039-2 p. 23)

Upon receipt of his Commission and Instructions Governor

Douglas quickly issued three Proclamations, which is the way he

was able to legislate. First he revoked the exclusive license

of the Hudson's Bay Company; secondly he granted an indemnity to

Colonial Officers for acts previously done; and thirdly he

declared, effective November 19, 1858, that the Laws of England

except where inapplicable because of local circumstance, were to

be the laws of the Colony.

Apparently relating his views to the law of England where

all land belongs to the Crown, Begbie J. (as he then was)

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advised the Governor:

"...the title of the Crown can only be

conveyed by Letters Patent under the Great

Seal, or under the authority of an Act of

Parliament." He accordingly advised a

proclamation empowering some person or

persons to convey the legal estate in Crown

Lands."

This was done on December 2, 1858 when by proclamation

Douglas authorized "the Governor, for the time being of the

Colony...to grant to any person or persons any land belonging to

the Crown in the said Colony". This Proclamation (Calder I, Ex.

1185-1) is the first of 13 colonial enactments upon which the

province relied in Calder as evidence of the extinguishment of

all Indian interests which may have existed at the time the

colony was established. I shall discuss the question of

extinguishment as a separate subject later.

On December 30, 1858 Lytton enquired of Douglas whether

"...it might be feasible to settle [the Indians] permanently in

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villages; [where] civilization at once begins". He pointed out

that such had been accomplished with the Kaffirs at the Cape.

Governor Douglas was not able to reply to this enquiry

until March 14, 1859 when he made these remarks:

"The plan followed by the Government of

the United States, in making Indian

settlements, appears in many respects

objectionable; they are supported at an

enormous expense by Congress, which for the

fiscal year ending June 30, 1856, granted

the sum of 358,000 dollars for the support

and maintenance of the Indians of California

alone, and for the four years ending with

the 30th June 1858, the total expenditure

for that object came to the large sum of

1,104,000 dollars, and notwithstanding the

heavy outlay, the Indians in those

settlements are rapidly degenerating;

neither would I recommend the system pursued

by the founders of the Spanish missions in

California.

Their objects, though to a certain extent

mercenary, were mainly of a benevolent kind;

the Indians were educated and trained in the

Roman Catholic faith; they were well fed and

clothed, and they were taught to labour; but

being kept in a state of pupillage, and not

allowed to acquire property of their own,

nor taught to think and act for themselves,

the feeling and pride of independence were

effectually destroyed; and not having been

trained to habits of self-government and

self-reliance, they were found, when freed

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from control, altogether incapable of

contributing to their own support, and

really were more helpless and degraded than

the untutored savages.

With such beacons to guide our steps, and

profiting by the lessons of experience so

acquired, we may perhaps succeed in escaping

the manifest evils of both systems; the

great expense and the debasing influences of

the American system, by making the Indians

independent and the settlements self-

supporting; and to avoid the rock on which

were wrecked the hopes of the Spanish

missions, I think it would be advisable

studiously to cultivate the pride of

independence, so ennobling in its effects,

and which the savage largely possesses from

nature and early training.

I would, for example, propose that every

family should have a distinct portion of the

reserved land assigned for their use, and to

be cultivated by their own labour, giving

them however, for the present, no power to

sell or otherwise alienate the land; that

they should be taught to regard that land as

their inheritance; that the desire should be

encouraged and fostered in their minds of

adding to their possessions, and devoting

their earnings to the purchase of property

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apart from the reserve, which would be left

entirely at their own disposal and control;

that they should in all respects be treated

as rational beings, capable of acting and

thinking for themselves; and lastly, that

they should be placed under proper moral and

religious training, and left, under the

protection of the laws, to provide for their

own maintenance and support." (Ex. 1039-2 p.

69).

In the meantime, on February 5, 1859 Douglas informed the

House of Assembly that the Indians:

"...were to be protected in their

original right of fishing On the coasts and

in the Bays of the Colony, and of hunting

over all unoccupied Crown lands; and they

were also to be secured in the enjoyment of

their village sites and cultivated fields.

These rights they have since enjoyed in

full and the Reserves of land covering their

Village sites and cultivated fields have all

been distinctly marked on the maps and

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surveys of the Colony, and the faith of

Government is pledged, that their occupation

shall not be disturbed. (Ex. 1039-37)

It is difficult to read these words without wondering what

went wrong for one would think that such a policy, if fairly

implemented, would result in Indians having a safe haven in

their village and reserves, the use of all vacant Crown land,

and opportunities for betterment in the new economy that would

place them in a preferred position to enjoy the best of both

their own and the white civilization. I shall continue to

wonder what went wrong throughout the course of this judgment.

On February 14, 1959, Governor Douglas issued a

Proclamation, (Calder II, Ex. 1185-10), being Regulations

"...respecting the alienation and possession of agricultural

lands, and lands proposed for the sites of towns in British

Columbia..." etc. in which it is declared, in s. 1:

"1. All the lands in British Columbia,

and all the Mines and Mineral therein,

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belong to the Crown in fee."

The province relies upon these provisions as the clearest

possible evidence that the Crown had in fact and in law taken

title to and full control of all of the lands of the colony.

Lord Lytton, in a dispatch dated April 11, 1859, said:

"...In the case of the Indians of

Vancouver's island and British Columbia, Her

Majesty's Government earnestly wish that

when the advancing requirements of

colonization press upon lands occupied by

members of that race, measures of liberality

and justice may be adopted for compensating

them for the surrender of the territory

which they have been taught to regard as

their own."

This suggests again, that the Colonial Office did not

consider the Indians entitled to interests which were

incompatible with the orderly development of the colony. I am

not able to say whether Lord Lytton expected the colony to make

cash payment for the surrender of interests, or merely the

allotment of reserves, or both.

The Governor also issued new (or revised existing) mining

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laws, Customs and an Aliens Act. In a report to London dated

June 18, 1859, he enclosed a Report made by Begbie J., who had

just returned from the circuit he had just undertaken via the

Fraser as far as the Fountains near Lillooet and returning by

way of the Harrison River to Langley. He reported a great

preponderance of California or "Californianized" elements of the

population and a ready submission of the populace to the will of

the Executive when such was expressed clearly. He also noted

the great riches of the country, both auriferous and

agricultural, and the great want for "... fixity of tenure for

agricultural purposes".

In June 1859 the Duke of Newcastle succeeded Lord Lytton as

Colonial Secretary.

On July 4, 1859 Governor Douglas made his intention plain

in a dispatch to London. He said:

"The regular settlement of the country

by a class of industrious cultivators is an

object of the utmost importance to the

colony, which is at present dependent for

every necessity of life, even to the food of

the people, on importation from abroad....

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We are for that reason most anxious to

encourage the actual settlement of the

country, and that the process should

commence on the sea coast, and spread from

thence, as much as possible, continuously

along the course of the great rivers into

the interior...

Colonel Moody is making great efforts to

bring surveying parties rapidly into the

field, but the survey of the site of

Queensborough, and other necessary work, has

led to unavoidable delays, and no country

land has as yet been brought into market.

There is much popular clamour on that

account, and should the pressure for land be

great, I think it will be advisable to meet

the emergency by establishing some temporary

system of occupation, which would enable

settlers to hold and improve certain

specified tracts of land under a pre-emption

right until the surveys are completed, when

it might cease to be in force." (Ex 1039-

41).

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The Governor said more or less the same thing over and

over again, with a view to persuading his superiors in London

that it was not feasible in this new country to hold land back

from settlers until after it had been surveyed.

In the summer of that year Governor Douglas made a tour

into the interior and in a report to London dated October 18,

1859 he stated that the entire white population of British

Columbia probably did not exceed 5,000 men, with few families,

and that there were neither wives nor children "to refine and

soften by their presence, the dreariness and asperity of

existence." He also commented upon the lack of interest in

country land, as it was called, but he encountered settlers at

Hope and Yale who were interested in unsurveyed land but

required some security. Douglas accordingly proposed to London:

"...to permit all persons being at the

time British subjects, and all persons who

have recorded their intention of becoming

British subjects, to hold tracts of

unsurveyed Crown land, not being town sites,

nor sites of Indian villages, and not

exceeding 160 acres in extent, with a

guarantee that the same would be fully

conveyed to the holder when the land is

surveyed, at a price not to exceed 10s. an

acre." (My emphasis).

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It is apparent that the differing opinions of Douglas and

the Colonial Office about selling unsurveyed land was impeding

settlement in the mainland colony. His original instructions

had been not to alienate land without prior survey, but those in

London did not understand or appreciate the difficulties of

surveying such a vast and difficult country. Douglas believed

that he had tacit permission to proceed with arrangements

permitting occupation without survey.

On January 4, 1860 the Governor issued a further land

Proclamation (Calder III, Ex 1187-1), to permit the pre-emption

of unsurveyed agricultural land by British subjects "...not

being the site of an existent or proposed town, or auriferous

land available for mining, or an Indian Reserve or

Settlement...." S. 17 permitted any magistrate to summarily

resolve any disputes about any land so taken. (My emphasis).

This Proclamation was sent to London on January 12, 1860

with a dispatch in which Douglas said:

"The object of the measure is solely to

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encourage and induce the settlement of the

country; occupation is, therefore, made the

test of title, and no pre-emption title can

be perfected without a compliance with that

imperative condition.

The Act distinctly reserves, for the benefit

of the Crown, all town sites, auriferous

land, Indian Settlements..., and public

rights whatsoever; the emigrant will,

therefore, on the one hand, enjoy a perfect

freedom of choice with respect to

unappropriated land, as well as the

advantage, which is perhaps of more real

importance to him, of being allowed to

choose for himself and enter at once into

possession of land without expense or delay;

while the rights of the Crown are, on the

other hand, fully protected, as the land

will not be alienated nor title granted

until after payment is received.

...

Other good effects are expected to result

from the operation of the Act; there is, for

example, every reason to believe that it

will lead to the more rapid colonization of

the country, and to greater economy in its

survey, which can be effected hereafter,

when roads are made, at a much smaller cost

for travelling and conveyance than at the

present time." (My emphasis). (Ex. 1187-

13).

This Proclamation did not receive easy or early approval in

London as had been the case with Calder I and II. The reasons

for this included the fact that the Colonial Office had

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experienced bad results in other colonies allowing settlers onto

unsurveyed land and it accordingly referred the Governor's

proposal to the Land and Immigration Commissions for study. In

addition, a Captain Clark, who had some experience in Australia,

had sent a letter to the Colonial Office making suggestions for

the disposition of land in British Columbia. Captain Clark

assumed that "...no claims have arisen to the soil of British

Columbia excepting isolated claims of the Hudson's Bay Company

... and that no Indian title exists of if any that it has been

extinguished, and separate provision made for them."

The Duke of Newcastle, after receiving the reluctant

approval of the Land and Immigration Commissions allowed the

Proclamation to be laid before Parliament, but declined to

proceed with it pending a reply from the Governor regarding

Captain Clark's proposal.

In April 1860, in response to a request for a grant of land

for the establishment of a mission near present Prince Rupert,

the Governor suggested in a dispatch to the Duke of Newcastle a

policy which may have been his own idea or which he may have

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borrowed from the Royal Proclamation, 1763. This policy was

that mission lands and Indian reserves should be conveyed to the

Governor in trust so that they could not sell them.

The Duke of Newcastle replied on May 25 approving the

grant, including the suggestion that the mission land be

conveyed to the Governor in trust, but he did not comment on the

Indian question.

Meanwhile, also in April 1860, Begbie J. had submitted a

long report with some interesting observations about the state

of the colony, and about land matters which may be summarized as

follows:

(1) the [white] population was "nearly all

aliens," with perhaps one-sixth probably

British subjects from Britain or the other

provinces, and the remainder adopted

citizens of the United States, having been

born in Europe and a total varying from

1,200 to 6,000 or 7,000. He commented that

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there was, in addition to the Indians, two

diverse ethnic groups, "Chinamen" and

negroes, "both despised...by the prevalent

white races, who are most strongly imbued

with the Unites States notions on the score

of colour and race."

(2) "The native Indian tribes are numerous very

brave very patient and very intelligent;

willing to work hard at some description of

labour."

(3) that any land law would have to be designed

with a view to the multifariousness of the

various races "who are to be governed by one

rule...to which they will all submit: for if

they refuse, or are disgusted, it would be

difficult to coerce, and plainly impossible

to detain them."

(4) the present system, described as the law

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proclaimed January 4, 1860, with which

Begbie J. said he did not wholly agree was

described as follows:

"l. Town lands and

suburban lands can only be sold by

auction: or after having been

offered at auction in vain, then

to any applicant, at the upset

price and on the terms and

conditions &c of the auction:

treating in fact the subsequent

purchaser as a bidder on the day

of auction.

2. All other lands

except Indian and Government

reserves may before survey be sold

either (a) to pre-emptors, staking

out such a parcel as they may

select, not exceeding 260

acres...."

(5) Begbie J. went on to say that he preferred

to codify the land system in many respects,

particularly to define town and suburban

sites and "...what are the definite

situation of Government and Indian reserves.

Until this is done, (and all but the Indian

may be very shortly defined) nobody can be

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quite certain what unsurveyed lands are

open..."

(6) with respect to S. 1. he said "I may also

observe that the Indian title is by no means

extinguished. Separate provision must be

made for it, and soon: though how this is to

be done will require some consideration.

From the friendly intercourse with the

natives, however, no serious difficulty is

to be apprehended."

(7) that he had completely changed his mind

since coming to the colony, from believing

that land should not be opened up for

occupation before survey and sale to the

view that such a scheme was impossible and

impolitic.

(8) After describing "boundless" grazing lands

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both east and west of the Cascades, he also

expressed the view that:

"The absolute right of

the Crown in all these lands is

perfectly recognized and I am

happy to say that great confidence

in the honour of the Government is

shown by all parties." (Ex. 1187-

30) (my emphasis)

This leads me to conclude that Begbie J. could not have

believed the Indians of the Colony owned the soil of the

province, nor did they have an interest which stood in the way

of settlement even though he believed some accommodation should

be made with them. I am puzzled by his suggestion that he

apprehended no serious difficulty in connection with "Indian

title." He was not ordinarily given to naivety and he

recognized some consideration would be required.

On August 24, 1860, the Governor damned the Clark Memo with

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faint praise but he did not mention the question of Indian

"title" although he included a copy of the report of Begbie J.

Briefly, Governor Douglas recommended against any change in his

January 4, 1860 "Pre-Emption Act" until it had been tested.

Immediately after that Douglas embarked upon a tour of the

interior. In a dispatch dated October 9, 1860 he described a

visit to the Lillooet area where he noted an Indian reserve had

been established. He received an "address" at Cayoosh (near

Lillooet) the object of which was "...to urge the early sale of

town lots...protection for the Chinese miners, and the removal

of stake nets and all obstructions ...preventing the ascent of

salmon...,"

In the same dispatch the governor advised:

"I had an opportunity of communicating

personally with the native Indian tribes,

who assembled in great numbers at Cayoosh

during my stay. I made them clearly

understand that Her Majesty's Government

felt deeply interested in their welfare, and

had sent instructions that they should be

treated in all respects as Her Majesty's

other subjects; and that the local

magistrates would attend to their

complaints, and guard them from wrong,

provided they abandoned their own barbarous

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modes of retaliation, and appealed in all

cases to the laws for relief and protection.

I also forcibly impressed upon their minds

that the same laws would not fail to punish

offenses committed by them against the

persons or property of others.

I also explained to them that the

magistrates had instructions to stake out,

and reserve for their use and benefit, all

their occupied village sites and cultivated

fields and as much land in the vicinity of

each as they could till, or was required for

their support; and that they might freely

exercise and enjoy the rights of fishing the

lakes and rivers, and of hunting over all

unoccupied Crown lands in the colony; and

that on their becoming registered free

miners they might dig and search for gold,

and hold mining claims on the same terms

precisely as other miners: in short, I

strove to make them conscious that they were

recognized members of the commonwealth, and

that by good conduct they would acquire a

certain status, and become respectable

members of society. They were delighted

with the idea, and expressed their gratitude

in the warmest terms, assuring me of their

boundless devotion and attachment to Her

Majesty's person and crown, and their

readiness to take up arms at any moment in

defence of Her Majesty's dominion and

rights.

....

The Indians mustered in great force during

my stay at Lytton. My communications with

them were to the same effect as to the

native tribes who assembled at Cayoosh, and

their gratitude, loyalty, and devotion were

expressed in terms equally warm and

earnest."

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(My emphasis). (Ex. 1142-4).

From Lytton the Governor travelled on to the Similkameen

and then to Rock Creek, a mining centre near Midway. In a later

dispatch dated October 25, 1860, Governor Douglas reported on

meetings and other matters at various locations during his

journey. He said:

"With the exception of the miners

assembled on Thompson River at Rock Creek

and Similkameen, the part of British

Columbia through which my route lay, is

still exclusively occupied by the native

Indian tribes, a race of bold and active

hunters, forming, when mustered in force on

their hardy native horses, an imposing

array. I fell in with detachments at

different points of the route, where they

had assembled to offer a rude but cordial

welcome...

There was one subject which especially pre-

occupied their minds, as I discovered by the

frequent allusions they made to it, namely,

the abject condition to which the cognate

native tribes of Oregon have been reduced by

the American system of removing whole tribes

from their native homes into distant

reserves, where they are compelled to stay,

and denied the enjoyment of that natural

freedom and liberty of action without which

existence becomes intolerable. They

evidently looked forward with dread to their

own future condition, fearing lest the same

wretched fate awaited the natives of British

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Columbia.

I succeeded in disabusing their minds of

those false impressions by fully explaining

the views of Her Majesty's Government, and

repeating in substance what I have in a

former part of this report informed your

Grace was said on the same subject to the

assembled tribes at Cayoosh and Lytton.

...

An appalling Indian outrage committed in the

neighbouring State of Oregon, as related

with its attendant horrors in a slip

enclosed herewith from the 'Vancouver

Chronicle,' will show better than comment

the impolicy of the American system, and how

careful we should be in guarding against the

contagion of evil example, by treating the

natives with justice, and removing when

necessary, every cause of distrust as to the

ultimate views and policy of Her Majesty's

Government with respect to them." (Ex 1142-

4, p. 27).

The "outrage" in Oregon referred to an Indian massacre of a

wagon train where 45 of 46 men, women and children were said to

have been "butchered" with only one man managing to escape. In

his acknowledgment of these reports dated February 1, 1861, the

Duke of Newcastle expressed no disagreement with anything the

Governor had said.

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On December 6, 1860 the Duke of Newcastle conveyed approval

of the Act, and it was subsequently passed by the Imperial

Parliament and received Royal Assent.

The province argues that this Act (Calder III) is the most

comprehensive land law proclamation made during the colonial

period (1858 until Federation with Canada in 1871). Its

provisions made it impossible to conclude the officials in the

colony and in Great Britain believed there was any "Indian"

impediment to the settlement of the Colony.

There was, however, agitation on Vancouver Island to

extinguish aboriginal "title." In March 1861 Douglas forwarded

to the Duke of Newcastle a petition from the House of Assembly

in Victoria requesting funds to extinguish these interests in

certain lands in the Colony of Vancouver Island. In his letter

of transmittal Douglas noted that the natives expected

settlement would proceed only with their consent, and that

failure to make proper arrangements might result in a clear and

imminent public danger:

"...As the native Indian population of

Vancouver Island have distinct ideas of

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property in land, and mutually recognize

their several exclusive possessory rights in

certain Districts, they would not fail to

regard the occupation of such portions of

the Colony by white settlers, unless with

the full consent of the proprietary Tribes,

as national wrongs; and the sense of injury

might produce a feeling of irritation

against the settlers, and perhaps

disaffection to the Government, that would

endanger the peace of the Country...

"3 - Knowing their feelings on that subject,

I made it a practice up to the year 1859, to

purchase the native rights in the land in

every case prior to the settlement of any

district; but since that time in consequence

of the termination of the Hudson's Bay

Company's Charter and the want of funds, it

has not been in my power to continue it.

Your Grace must indeed be well aware that I

have since then had the utmost difficulty in

raising money enough to defray the most

indispensable wants of government.

...

"6 - I will not occupy Your Grace's time by

any attempt to investigate the opinion

expressed by the House of Assembly as to the

liability of the Imperial Government for all

expenses connected with the purchase of the

claims of the aborigines to the public land,

which simply amounts to this, that the

expense would in the first instance be paid

by the Imperial Government, and charged to

the account of proceeds coming (?) from the

sales of public land. The land itself would

therefore be ultimately made to bear the

charge.

"7 - It is the practical question as to the

means of raising the money that at this

moment more seriously engages my attention.

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The Colony being already severely taxed for

the support of its own government, could not

afford to pay that additional sum; but the

difficulty may be surmounted by means of an

advance from the Imperial Government to the

extent of 3,000 pounds, to be eventually

repaid out of the Colonial Land Fund...

And I shall carefully attend to the

repayment of the sum advanced in full as

soon as the land fund recovers in some

measure from the depression caused by the

delay which Her Majesty's Government has

experienced in affecting a final arrangement

with the Hudson's Bay Company for the

reconveyance of the Colony, so there is

little doubt when our new system of finance

comes fully into operation that the revenue

will be fully adequate to the expenditure of

the Colony.

The request for aid in financing purchase of aboriginal

interests was reviewed by the Emigration Office in London. Every

one of the written minutes concerning this matter expressed

concurrence with Douglas and the House of Assembly in Victoria

regarding the advantages of purchasing aboriginal "title".

Further, it is clear that the need to purchase these interests

was seen as necessary not only in the Colony of Vancouver

Island, but in the mainland colony of British Columbia, as well.

The following minute of the Colonial office illustrates the

point:

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"Mr. Elliot. The early settlement of this

matter is of much importance. I frequently

am called upon to see at this office persons

of all classes, desirous of settling in V.C.

lsld. or B. Columbia, and one of the

questions proposed to me is generally how

the claims of the natives to land were

arranged; to which I have had to ans. that I

concluded they wd. have to be bought up. But

this has not been quite satisfactory to an

enquiring settler, who, before he leaves

these shores naturally desires to know

exactly & positively what he may expect in

the acquisition of land in the Colony he has

selected as his residence. Therefore if

these Indian claims cd. be fairly

extinguished the arrangement wd. facilitate

immigration. But buying them by means of a

loan from the British Exchequer is probably

questionable. I do not see why a loan sh.

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not be raised in the Colony, the amount

wanted being only £3000. It is, however, to

be observed that the Colony has lately

borrowed £1O,000 for harbour improvements.

The transmittal letter from Helmcken, speaker of the House

of Assembly, to Governor Douglas refers to the Petition:

"Praying for the extinction of the aboriginal title" passed by

the House of Assembly.

The Petition sent to the Colonial Office provided in part:

"We, Her Majesty's faithful and loyal

subjects, the members of the House of

Assembly of Vancouver Island in Parliament

assembled would earnestly request the

attention of your grace to the following

considerations:

1. That many colonists

have purchased land at the rate of

one pound sterling per acre in

districts to which aboriginal

title has not yet been

extinguished.

2. That in consequence

of the non-extinction of this

title, these persons though most

desirous to occupy and improve,

have been unable to take

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possession of their lands

purchased in most cases, nearly

three years ago and of this they

loudly and justly complained. ...

3. That the House of

Assembly respectfully considered

that the extinction of the

aboriginal title is obligatory on

the Imperial Government."

The disagreement between London and Victoria concerned

which government should finance this cost. The government in

England declined to place this burden on the British taxpayer,

claiming that the local government should raise the revenue.

The local government claimed that it could not do so. The House

of Assembly alleged that fiscal responsibility rested with the

Home Government. Douglas, however, promised that the funds

would be a loan to be repaid out of Colonial land revenues when

settlers were able to pay for the land. The Emigration Office

in Britain was concerned that every Colony could make a similar

claim on the Home Government for assistance. There was also

concern that a loan from the Treasury or the money market could

only be made at disadvantageous rates at that time. There was

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concurrence that eventually the loan would have to be repaid by

the Colony, but there was little information available regarding

the status and future of land revenues in the Colony.

Part of the correspondence that was generated by the

Petition was a letter from a Mr. Murdoch, one of the Land and

Immigration Commissioners in London, to Sir Frederick Rogers.

This acknowledges the dispatch from the Governor of Vancouver

Island as well as the Petition on the subject of the extinction

of the native title to lands in the Colony:

"The Assembly represents that nearly

three years ago many colonists purchased

land over which the native title had not yet

been extinguished, at the rate of one pound

per acre: that the natives being well aware

of the sums paid to other natives for the

extinction of their title refused to allow

the colonist to take possession of the land.

That any attempt to do so by force would

produce collision and render the native, who

are numerous and war-like, hostile to

settlers, and that the existence of the

native title has deterred many persons from

settling on the Island."

Murdoch went on to say:

"The only question is the source from which

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the money should in the first instance be

obtained. This apparently must be either

from the Imperial Treasury or by a loan in

the money market. But a loan for so small a

sum and for a Colony so little known as

Vancouver's Island, could not probably be

obtained without an Imperial guarantee,

except under very disadvantageous terms.

Whether the money should be advanced from

the Imperial Treasury is a question which

belongs to the Lord Commissioners of the

Treasury and I would suggest that it should

be submitted to them. There cannot, of

course, be a doubt that from whatever source

the money is in the first instance drawn, it

must eventually be paid out of land revenue

of Vancouver's Island."

The opinion at the Emigration Office that the aboriginal

interests should be purchased resulted in an appeal to the

Treasury for fiscal assistance. This however, was turned down

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because of the assertion of the Victoria Legislature that the

Home Government was liable for the cost of extinguishing

"aboriginal title." In view of this assertion, the Lords of the

Treasury took the position that the application was not for a

loan, but for an outright grant.

Correspondence between Stephen Walcott (second Commissioner

of the Emigration Office) and Sir Frederic Rogers (permanent

Under-Secretary of State for the Colonies) dated 4th October,

1861, makes it clear that the failure to acquire funds from the

Treasury was not an expression of opinion that "indian title"

should not be purchased. Rather it was an assertion that the

Colony was liable for the costs. Walcott reviewed the matter

and proposed an alternate means of raising the needed funds:

1. "I have to acknowledge your Letter

of the 28th ultimo on the subject of the

application from the Governor of Vancouver

Island for an advance of £3000 from the

Imperial Government for the purpose of

extinguishing the native Title to certain

lands in the Colony.

2. The circumstances of the case and

the importance and practical economy of

extinguishing the aboriginal title on the

lands in question as early as possible, are

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fully set forth in Mr. Murdoch's report of

the 12th of June last, who recommended that

the application should be submitted to the

Lords Commissioners of the Treasury, as the

Only question which appeared to remain open

was the source from which the money should

in the first instance be obtained.

3. From Mr. Peel's letter of the 25th

ultimo which accompanies your Letter it

appears that the Lords Commissioners of the

Treasury to whom the matter had been

submitted, are not prepared to purchase up

the native Title at the expense of this

Country, and do not view the present

application as one for a loan, since the

House of Assembly had asserted the liability

of the Home Government to bear the charge of

extinguishing the Title. Their Lordships

moreover consider that the Governor's best

course would be to follow his previous

practice of purchasing the native rights

over such land only as was immediately

required for settlement, and not on so large

a scale at once as to require that a loan

should be raised for the purpose.

4. The Governor has however explained

in his Despatch of the 25th of March, his

inability to continue the practice of

purchasing the Native title, and the great

difficulty he experiences in raising

sufficient money to defray the most

indispensable wants of his Government. As

the matter therefore now stands the Colony

cannot provide the required sum, and the

Home Government declines to make a grant of

it. The result will be that the opportunity

will be lost of extinguishing the Native

Title on very moderate terms, and that faith

cannot be kept with the persons to whom the

Government sold the land 3 years ago without

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endangering the peace of the Country.

5. The only alternative which seems

left that offers a prospect of solving the

difficulty is that the Governor should be

invested by the Local Legislature with full

powers to raise a loan on the best terms he

can on the security of the land and general

Revenues of the Colony. This security, and

distinct admission of Colonial liability,

may possibly remove the objection of the

Treasury (which I understand is not so much

to a loan as to a grant) to guarantee so

small a sum as 3000 -- or if not some

capitalist may be found willing to lend it

on terms which, looking at the object to be

obtained, it may be well worth the Colony's

while to give."

Mr. Murdoch, referred to in the second paragraph above, was

Chairman of the Colonial Land and Emigration Commissioners.

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In the fall session of 1861 the Vancouver Island House of

Assembly reopened discussion on the need to purchase aboriginal

interests. No response had been received to the petition for

funds which had been sent to England in March. In September,

Mr. Tolmie suggested that a renewed application be made to the

Home Government for funds to extinguish aboriginal interests in

certain districts where settlement was proceeding.

Newcastle's response to the March petition is dated October

19, 1861. He wrote to Douglas concurring in the need to

extinguish native interests, but directed that the House of

Assembly would have to vote funds for that purpose:

"I have had under my consideration your

despatch No. 24 of the 25 of March last,

transmitting an address from the House of

Assembly of Vancouver Island in which they

pray for the assistance of H.M. Government

in extinguishing the aboriginal title to the

Public Lands in the Colony and set forth the

evils that may result from a neglect of this

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precaution. I am fully sensible of the

great importance of purchasing without loss

of time the native title to the soil of

Vancouver Island but the acquisition of the

title is a purely Colonial Interest and the

Legislature must not entertain any

expectation that the British Taxpayer will

be burdened to supply the funds or British

Credit pledged for the purpose. I would

earnestly recommend therefore to the House

of Assembly that they should enable you to

procure the requisite means but if they

should not think proper to do so, Her

Majesty's Government cannot undertake to

supply the money requisite for an object

which, while it is essential to the

interests of the people of Vancouver Island,

is at the same time purely Colonial in its

character, and trifling in the charge that

it would entail."

In 1863 the Legislative Council of Vancouver Island voted

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$9,000 for the acquisition of lands from the Cowichan and

Chemainus Indians.

While there are references in the correspondence written by

officials in the Colonial Office to the question of

extinguishing aboriginal interests in British Columbia as well

as on Vancouver Island, Governor Douglas made no further mention

of it and there never was, so far as the evidence shows, any

expectation or intention to do so. Agitation for treaties was

limited to the separate colony of Vancouver Island.

The plaintiffs argue that the willingness of the Crown, the

Hudson's Bay Company, Governor Douglas, and the Legislative

Assembly of Vancouver Island to purchase aboriginal lands or

interests is evidence of the existence of Indian ownership of

the entire province.

With respect, I think too much has been made of these

treaties as there is no clear understanding of what was

involved, and the reasons which motivated the parties to act as

they did. The Hudson's Bay Company apparently decided to

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acquire aboriginal interests in land in which it was interested,

and obtained such land for a few blankets. It is not clear

whether the acquired lands included village sites, or cultivated

fields or surrounding hunting grounds. It did not include the

whole territory. The Colony made a few additional acquisitions

under obvious pressure from settlers who were concerned not just

about an uncertain title, but also about their safety.

At the same time, however, (and more particularly on the

mainland), the Crown was proceeding rapidly with the sale of

what was styled Crown or waste or vacant land which did not

include village sites, etc. Village sites were preserved for

the exclusive use of Indians and it seems to have been clearly

the intention of the Crown that the Indians' interest in

whatever sites as they were actually using would indeed be set

aside as permanent reserves.

The treaties, by their terms, are sales of land except for

village sites and cultivated fields which are reserved to the

Indians who also reserved the right "...to hunt over the

unoccupied lands and to carry on our fisheries as formerly. I

do not know if it was thought the Indians were actually in

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possession of those lands as adjacent hunting lands.

If they

were, then the treaties add nothing to the reserve system. The

correspondence about "native title" on the other hand is even

less precise but it certainly did not amount to a recognition of

any disability on the part of the Crown to promote settlement in

the colony which was well under way at the time of these

exchanges, and continued after that time without abatement.

The Vancouver Island treaties may represent no more than

the surrender of the Indians of whatever rights they had in

exchange for the modest consideration they received together

with the substitution of a treaty right to continue to use the

land. It cannot be inferred that the Indians owned the land or

that the Crown was obliged by law to enter into these or further

treaties.

This is all so uncertain and equivocal that I am unable to

attach any legal consequences to these treaties. It is not

surprising, when one comes so late in the day to reconstruct

history, to uncover questions to which there is no obvious

answer or explanation. Such matters can neither be ignored nor

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assumed to have a greater significance than they deserve. I am

more impressed by the unequivocal fact that the Crown, while

recognizing aboriginal possession of village sites, was both

setting aside reserves and marketing the unoccupied balance of

the colony.

Returning to the colonial legislation, Calder IV to IX were

enacted by the colonial government, (Douglas alone until 1864

and by the Governor and Legislative Council thereafter), which

were also enacted by the Imperial Parliament. I shall mention

them briefly, all of which are in Ex. 1185.

Calder IV, (Ex 1185) dated January 20, 1860, was a

proclamation providing for the sale of town and suburban lots

and surveyed agricultural lands. This was sent by Douglas to the

colonial office on January 27, 1860. It was laid before the

Imperial Parliament, and Douglas was informed of Her Majesty's

approval on May 8, 1860.

Calder V, (Ex. 1185), The Pre-Emption Amendment Act, dated

January 19, 1861, amended the January 4, 1860 proclamation

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(Calder III). Douglas was informed of the Queen's approval by

letter dated December 30, 1861.

Calder VI, (Ex. 1185), dated January 19, 1861, is sometimes

called the Country Land Act. It reduced the price of country

land on pre-emption from ten shillings an acre to four shillings

2 pence per acre. Douglas was informed by letter dated December

30, 1861 of the Queen's approval.

Calder VII, (Ex. 1185), dated May 28, 1861, has been called

the Pre-Emption Purchase Act, 1861. It was intended to limit

speculation in pre-empted land by reducing the amount of land

that a settler could hold by pre-emption to 160 acres although

bona fide settlers could also purchase other lands. Douglas was

informed of Her Majesty's approval on December 30, 1861.

Calder VIII (Ex. 1185), is dated August 27, 1861. It was

called the Pre-Emption Consolidation Act, 1861. In his dispatch

to the Colonial Office Douglas explained that its purpose was to

bring within the compass of one general Act all of the several

proclamations regulating the pre-emption of land, and to

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simplify procedures for the acquisition and registration of land

by settlers. Douglas was informed of the Queen's approval by

letter dated March 17, 1862.

Calder IX (Ex 1185), was dated May 27, 1863, and was called

the Mining District Act, 1863, but no documentation relating to

it has been found.

Governor Douglas remained in office long enough to meet the

first Legislative Council of British Columbia on January 21,

1864 and he was then succeeded by Frederick Seymour. In his

address to the new Council the old Governor restated his policy

of encouraging settlement "of the waste lands of the Crown," and

he said:

" I have thought it incumbent on my

Government to pursue, as a fixed policy, a

course that would tend to the increase of

population and encourage the settlement of

the waste lands of the Crown, which are now

unproductive alike to the Sovereign and to

the people.

....

The Native Indian Tribes are quiet and well

disposed; the plan of forming Reserves of

Land embracing the Village Sites, cultivated

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fields, and favourite places of resort of

the several tribes, and thus securing them

against the encroachment of Settlers, and

for ever removing the fertile cause of

agrarian disturbance, has been productive of

the happiest effects on the minds of the

Natives.

The areas thus partially defined and set

apart, in no case exceed the proportion of

ten acres for each family concerned, and are

to be held as the joint and common property

of the several tribes, being intended for

their exclusive use and benefit, and

especially as a provision for the aged, the

helpless, and the infirm.

The Indians themselves have no power to sell

or alienate these lands, as the Title will

continue in the Crown, and be hereafter

conveyed to Trustees, and by that means

secured to the several Tribes as a perpetual

possession.

That measure is not however intended to

interfere with the private rights of

individuals of the Native Tribes, or to

incapacitate them, as such, from holding

land; on the contrary, they have precisely

the same rights of acquiring and possessing

land in their individual capacity, either by

purchase occupation under the pre-emption

Law, as other classes of her Majesty's

subjects; provided they in all respects

comply with the legal conditions of tenure

by which land is held in this Colony.

I have been influenced in taking these steps

by the desire of averting evils pregnant

with danger to the peace and safety of the

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Colony, and of confirming by those acts of

justice and humanity, the fidelity and

attachment of the Native Tribes to Her

Majesty's rule." (My emphasis). (Ex. 1184-

27).

While I accept the foregoing as an accurate statement of

colonial policy, approved in all respects by the Crown, I tend

to doubt the correctness of the Governor's views about the

satisfaction of the Indians, although he may be partly correct

in the optimistic and almost romantic view he often expressed

about the Indian attitude towards the arrangements being made

for their accommodation. By this time the disease epidemics had

occurred and were continuing, and alcohol had become a serious

problem.

Douglas was succeeded as Governor of the Colony of

Vancouver Island by Arthur Kennedy who served until the 2

colonies were united in 1866.

Calder X, (Ex. 1186-63), dated April 11, 1865, was, of

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course, enacted by the Governor, "by and with the advice and

consent of the Legislative Council," and was entitled An

Ordinance for regulating the acquisition of land in British

Columbia. It re-enacted the principal provisions of previous

land Ordinances but is a much more detailed code of pre-emption.

It provides by s. 3:

"All the lands in British Columbia, and

all the mines and mineral therein, not

otherwise lawfully appropriated belong to

the Crown in fee."

S.12 provided that "all" unoccupied and unsurveyed and

unreserved Crown lands, "not being the site of an existent or

proposed town, or auriferous land available for gold or silver

mining purposes, or an Indian reserve or settlement...," would

be available for pre-emption. It was duly submitted to the

Imperial Parliament and given Royal Assent. (my emphasis)

Calder XI, (Ex. 1186-68), dated March 31, 1866, was An

Ordinance further to define the law regulating the acquisition

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of land in British Columbia." Prior to this enactment Indians,

along with aliens who took an oath of allegiance, were qualified

to pre-empt land. This Ordinance provided that such right would

not extend to "...Companies...or, without the permission

aforesaid, to or on any of the Aborigines of the Colony...,"

The historical explanation for this is that speculators were

unfairly accumulating land pre-empted by Indians. Special

permission was given for Indian pre-emptions in some, but not

many cases, but it is not known how many applied.

This provision remained in the law until 1953. Indians

continued to have the same access as anyone else to the

unalienated lands of the Crown.

This, of course, marked an unfortunate departure from the

policy established by Governor Douglas, which had contemplated

Indians having the same rights and privileges, except for their

protected reserves, as everyone else. This undoubtedly

illustrates the difficulties then encountered, (and which

continue), in accommodating the two cultures.

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I interrupt this review of the Calder XIII (land

Ordinances) to mention that on August 6, 1866 the Imperial

Parliament enacted the British Columbia Act, 1866, providing for

the Union of the colonies of Vancouver Island and British

Columbia, under the name of the latter. This Act was proclaimed

into law in the Colony on November 17, 1866.

Calder XII, (Ex. Ex. 1186-73), dated March 10, 1869,

related only to the payment of the purchase price of pre-empted

lands.

Calder XIII, (Ex. 1186-80), was passed by the Legislative

Council April 22, 1870. It was a substantial re-enactment and

consolidation of much of the above Ordinances. It repealed

Calders II to XII inclusive, but provided that such repeal would

not prejudice or affect any rights acquired under any of them.

Clause III provided that any male British Subject of the age of

18 years could acquire the right to pre-empt "any" of the

"...unoccupied, unsurveyed, and

unreserved Crown lands (not being an Indian

Settlement) not exceeding [320 acres east of

the Cascades and 160 acres to the

west]...Provided that such right of pre-

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emption shall not extend to any of the

Aborigines of this Continent, except as

shall have obtained the governor's special

permission in writing to that effect." (My

emphasis).

In his reports to Governor Musgrave on the passage of this

new law, the Attorney-General Mr. Crease did not comment on this

restriction. However, that may be culturally understandable

because he also did not comment upon the restriction of pre-

emption rights to male persons.

In addition to the Calder XIII instruments, the province

relies upon further colonial proclamations or Ordinances which

were referred to London for approval and which in most cases

received Royal Assent. These include enactments having the

force of law which dealt with subjects corollary to the land

laws already detailed, and other matters such as the

constitution of the courts of the province, a code for gold

mining without limiting the right of the Crown to make reserves

for Indian settlements, telegraph lines on lands "not reserved

for Indians," the sale or barter of game, the protection of

Indian graves, the settlement by magistrates of disputes about

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the boundaries of reserves or with whites, and land registration

which provided for the granting of a certificate of title which

was:

"...conclusive evidence in all courts

of justice that the person named therein is

the absolute owner of an indefeasible fee

simple in real estate therein mentioned

against the whole world..." (except the

Crown)

The province also relies upon what it calls "Miscellaneous

Statutory Instruments." These are very extensive, comprising

Tabs 17 to 124 in Ex.'s 1200-1 and 1200-2. They are described

by counsel for the province in his written outline of argument

as consisting "...of a collection of Colonial regulations,

proclamations, ordinances and enactments but without the

underlying documents (which were furnished for the Calder XIII

instruments indicating transmittal to London, consideration

there and approval thereafter). They touch upon almost every

part of life in the colony."

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The province argues, as it did in Calder, that these 13

colonial Ordinances and, in this case, the other enactments or

regulations which all became law prior to the transfer of

jurisdiction respecting Indians and Indian lands to Canada in

1871, effectively extinguished any common law aboriginal

interests which might have existed upon the establishment of the

colony in 1858. I shall return to this question later.

Summary

After confederation with Canada a dispute arose between

Canada and the province about Indian matters and Mr. Walkem, the

provincial Attorney-General wrote a report dated August 17, 1875

which was adopted by the Executive Council. In his report the

Attorney-General described the policy of the Colony relating to

Indians. He wrote:

"The policy of the Dominion aims at a

concentration of the Indians upon Reserves,

while that of the Crown Colony, besides

granting Reserves in cases where the Indians

preferred them, courted rather an opposite

result. The Colonial Policy was first

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inaugurated under the auspices of the

Imperial Government in 1858, the date of the

foundation of the Crown Colony. Under this

policy the Natives were invited and

encouraged to mingle with and live amongst

the white population with a view of weaning

them by degrees from savage life, and of

gradually leading them by example and

precept to adopt habits of peace, honesty

and industry. It is true that this step was

not unattended with some of the well known

evils which are unfortunately inseparable

from the attempted fusion of savage and

civilized races, but these defects it was

believed would in time have been largely

removed by the application of proper

remedies. (Walkem's emphasis, Ex. 1182, p.

21 [2nd pagination]).

By to-day's morality, the foregoing will be regarded by

many as an attempt to destroy Indian culture and identity. By

the standard of the day, compared with the rest of the world, it

was probably enlightened. I need not pronounce on that

question.

Although Governor Douglas intended the Indians would be

treated equally with white settlers, it did not work out that

way. Indian reserves were established in or near the settled

areas (not including "the territory" where settlement and

reserves came later), and the Indians had free access to all

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unoccupied Crown lands instead of being confined to reserves.

Otherwise, the Indians were, as later stated by Trutch, more or

less left alone. Being reticent people, and benefiting in some

respects from the industry and trade goods of the settlers, they

often did not object to the inroads made into the geography of

the Colony. There seemed to be room enough for everyone.

In fact, white and immigrant populations in the province

grew from the 5,000 mentioned by Governor Douglas in 1859 to

perhaps 12,000 at the time of Confederation, while the Indian

population probably remained more or less the same, estimated

from 25,000 to 40,000 with the great majority of them on or

near the coast living off the sea, rivers and land to which they

had free access. They were often thought not to have any need

for reserves much larger than their village sites.

For reasons which can only be answered by anthropology, if

at all, the Indians of the colony, while accepting many of the

advantages of European civilization, did not prosper

proportionately with the white community as expected.

Notwithstanding the policy enunciated by Governor Douglas, the

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anticipated equality of life and opportunity with the white

community quickly turned (even before Confederation) into the

same depressing, continuing and paternalistic inequality

experienced in most areas of North America. The prohibition of

Indian pre-emption of land is but one example, but possibly not

a significant one because they probably would have sought only

infrequently to obtain land in this way. Also, I doubt if they

would have long retained any land they might have obtained by

pre-emption because their culture had not prepared them for the

disciplined life of a tax paying agriculturalist.

No one can speak with much certainty or confidence about

what really went wrong in the relations between the Indians and

the colonists. As will be shown in the next Part of this

judgment, there was, and there is still continuing, much

recrimination against the way the Indians were treated here and

in the rest of the Dominion, yet the result seems to be more or

less the same throughout North America. I suspect Woodcock is

correct in his recent History of British Columbia, 1990, when he

suggests Indian dependence upon the white society was one of

their greatest problems. In my view the Indians' lack of

cultural preparation for the new regime was indeed the probable

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cause of the debilitating dependence from which few Indians in

North America have yet escaped.

It would be overly simplistic, and probably inaccurate, to

say that the white settlers were either too kind or too cruel,

and that the Indians should either have been given more support,

and the dependence increased, or no support at all so that a

dependence would not have arisen. So long as Indians had access

to white communities there was bound to be a mixing of

incompatible cultures.

Being of a culture where everyone looked after himself or

perished, the Indians knew how to survive (in most years). But

they were not as industrious in the new economic climate as was

thought to be necessary by the newcomers in the Colony. In

addition, the Indians were a greatly weakened people by reason

of foreign diseases which took a fearful toll, and by the

ravages of alcohol. They became a conquered people, not by

force of arms, for that was not necessary, but by an invading

culture and a relentless energy with which they would not, or

could not compete.

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Many have said with some truth, but not much understanding,

that the Indians did not do as much for themselves as they might

have done. For their part, the Indians probably did not

understand what was happening to them. This mutual solitude of

misunderstandings became, and remains, a dreadful problem for

them and for everyone.

What seems clear, however, is that the source of Indian

difficulty was not the loss of land for aboriginal purposes. So

far as the evidence shows, they were largely left in their

villages and an aboriginal life was available to them for a long

time after the "Indian problem" was identified. The first

settlers did not enter the territory until about 1900 by which

time serious hardship had already been identified, and they were

already starting to congregate in the Skeena and Bulkley River

villages.

Preoccupied with the business of getting a new colony

started, and of scratching out a hard life in a hard land, the

new white settlers, and particularly their leaders, did not pay

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sufficient attention to the real and potential sociological,

cultural and economic difficulties the Indians were

experiencing. They became a problem seen through European eyes

to be dealt with bureaucratically -- an Ordinance here, a

dollar there, and tragedy almost everywhere. I suspect the

white community understood what was happening to the Indians but

did not have the resources, or the knowledge, to respond

appropriately.

Even to-day, it is difficult to say what should have been

done short of abandoning the settlement of the colony. There is

an obvious down-side to every possible alternative. Even a

division of the colony between settlers and Indians was not

possible for there was no part of the colony where Indians did

not have a presence. Much larger reserves may have helped, but

probably not without segregation which would have been severely

criticized on other grounds. As in so many other parts of the

world, the seeds of present difficulties were sown, not

intentionally I am sure, but by mixing two cultures, and by

indifference, during the colonial period.

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PART 12. THE RELEVANT POLITICAL HISTORY OF THE PROVINCE

FROM UNION WITH CANADA IN 1871 TO THE PRESENT

There were numerous communications from Governor Musgrave

to the Colonial Office in the late 1860's about the troubled

demographic state of the colony caused by the presence of so

many migratory Americans and Indians, and the Governor warned of

the need for a strong Executive and a settled policy in order to

"govern and protect" the Indians. A reasonable place to start

is a Memorandum written in 1870 by Joseph W. Trutch because he

became such a prominent person before and after Confederation,

and the plaintiffs' principal bete noir in this case.

This came about because of an 1869 letter written by a Mr.

W. S. Seabright-Green to the secretary of the Aborigines

Protection Society in London on "The miserable condition of the

Indians in Vancouver Island," making many serious complaints

against the local government. This found its way by way of the

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Colonial Office to Governor Musgrave who in turn referred it to

Mr. Trutch, the Commissioner of Lands and Works and Surveyor-

General of the Colony.

In his 1870 reply to Mr. Seabright-Green's letter, Trutch

reviewed the Indian policy of the colony and unreservedly

refuted many of the allegations made by Mr. Seabright-Green.

Trutch said:

"It is not true, as he avers, that in this

Colony we have 'no Indian Policy whatever;'

that 'there are no Indian Agents;' and that

'the only friends the Indians have in the

Colony are the Missionaries.' On the

contrary, for the past ten years at least,

during which I have resided in this Colony,

the Government appears to me to have striven

to the extent of its power to protect and

befriend the Native race, and its declared

policy has been that the Aborigines should,

in all material respects, be on the same

footing in the eye of the law as people of

European descent, and that they should be

encouraged to live amongst the white

settlers in the country, and so, by their

example, be induced to adopt habits of

civilization. In the more settled districts

the Indians now reside mostly in the

settlements, working for the white settlers,

eating similar food, and wearing similar

clothing, and having, to a great extent,

relinquished their former wild, primitive

mode of life. In these respects the native

race has undoubtedly derived very material

benefit from their contact with white

people, whilst it is undoubtedly equally

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certain that it has thence contracted a

large share of the vices, and attendant

disease which have ever been inevitably

entailed by European races, on the Indians

of this continent amongst whom they have

settled.

This policy towards the Indians has been

consistently carried out, so far as I am

aware, by successive Governors, and under it

the Indians have assuredly, as Mr. Green

states, 'been made amenable to English

laws;'...

The Indians have, in fact, been held

to be the special wards of the Crown, and in

the exercise of this guardianship Government

has, in all cases where it has been

desirable for the interests of the Indians,

set apart such portions of the Crown lands

as were deemed proportionate to, and amply

sufficient for, the requirements of each

tribe; and these Indian Reserves are held by

Government, in trust, for the exclusive use

and benefit of the Indians resident thereon.

But the title of the Indians in the fee of

the public lands, or of any portion thereof,

has never been acknowledged by Government,

but, on the contrary, is distinctly denied.

In no case has any special agreement been

made with any of the tribes of the Mainland

for the extinction of their claims of

possession; but these claims have been held

to have been fully satisfied by securing to

each tribe, as the progress of the

settlement of the country seemed to require,

the use of sufficient tracts of land for

their wants for agricultural and pastoral

purposes."

(Ex. 1203-1; s. I, Tab 7, p.2)

The foregoing views of Trutch are important because he was

the colony's principal negotiator of the Terms of Union with

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Canada, and later the first Lieutenant-Governor of the province.

In their argument plaintiff's counsel make serious

allegations against many Colonial officials including Trutch,

Robson, Crease and Governor Musgrave. They allege Trutch

"purposely lied" (in the discussions on Confederation) and that

he participated in a scheme of misinformation which led to the

"impoverishment of the people." Counsel allege a "perversion of

history," and refer particularly to an incident in the

Legislature on March 25, 1870 when discussion about a motion

brought by Mr. Holbrook, "...to protect the Indians during the

[proposed] change of government..." was suppressed and defeated

by a vote of 20 to 1.

What is missing in the Trutch memorandum, of course, is

specific mention of the early land treaties on Vancouver Island

but there is no direct misstatement in what he says about

"special arrangements". Historians have not generally treated

Trutch as unkindly as plaintiff's counsel. Dr. Margaret Ormsby,

in her British Columbia: A History, Evergreen Press, 1958, calls

him the saviour of Confederation. Robert Cail in Land, Man, and

the Law; The Disposal of Crown Lands in British Columbia, 1871 -

1913, University of British Columbia Press, 1974 says it is

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possible that neither Trutch nor the other Dominion and Colonial

officials negotiating the terms of Union "...intended to be

anything less than candid..." (p. 185) But Cail also says at p.

191:

"The evidence does not prove that

Trutch himself was not convinced that the

Indian policy of the province was anything

but in the best interests of both the

Indians and the white settlers, but it does

suggest that he was not anxious to have the

details of that policy known to the dominion

authorities."

Even though Trutch clearly set out his understanding of the

Indian policy of the colony in his 1870 memorandum, the evidence

about the character of Trutch is equivocal and, there being no

need to do so, I think it best not to enter into that

controversy. Such matters are better left to historians.

I suspect, however, that the views Trutch expressed in the

foregoing passages may not be representative of what was

happening to Indians throughout the province. Undoubtedly there

was a measure not of assimilation, but rather of conformity on

the part of many Indians with the growing white population.

This was particularly evident in the larger centres such as

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Victoria and New Westminster and in the various mining camps

throughout the limited areas affected by mining activity or

settlement. Even in the territory the Indians were

understandably taking whatever advantage they could of the white

economy, particularly by utilizing its market for their furs and

by working for wages. It is impossible to say if they were

better or worse off as a result of these changes. I suspect

they would hardly be aware of the policies described by Mr.

Trutch.

Reserves were, however, being allocated, most probably on a

unilateral basis in the sense that the Indians took little part

in the process. They were free, as they had always been, to use

unoccupied land as they chose, and as a result land use probably

changed hardly at all in the territory, at least until the

settlers started arriving in the early years of this century.

I digress for a moment to mention a few excerpts from

history, not related to British Columbia, to illustrate that

there was a variety of views about aboriginal interests in the

common law world which were far from unanimous or consistent,

and which provided the background for the controversies which

arose between British Columbia and Canada after Union was

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achieved.

The first example I shall mention relates to the situation

in New Zealand which resulted in the case of R. v. Symons [1847]

N.Z.P.C.C. 387 (N.Z.S.C.). It is not necessary to detail all

the circumstances which arose in that colony as a result of the

Treaty of Waitangi, 1840, but there was a Report of a Select

Committee of the Imperial House of Commons enquiring into the

state of the Colony of New Zealand in 1841. This report seems

never to have been formally accepted by Parliament. Some very

strong statements were made in that Report of which I shall give

just one example. I do this because it may have influenced many

other colonial officials in the period that I am considering.

The Committee quoted with approval the statement of Sir George

Gipp, the Governor of New South Wales:

"...the uncivilized inhabitants of any

country have but a qualified dominion over

it, or a right of occupancy only; and that,

until they establish amongst themselves a

settled form of government, and subjugate

the ground to their own uses, by the

cultivation of it, they cannot grant to any

individuals not of their own tribe any

portion of it, for the simple reason, that

they have not themselves any individual

property in it..."

(Ex. 1184-3, p. iii

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For an interesting discussion of the situation in New

Zealand, see a recent Article of Professor Hamar Foster

published in 1988-89 U.B.C. Law Review, p. 629.

What is missing in these discussions is the absence of a

precise definition of terms. In New Zealand the Treaty

guaranteed to the Maori "...full, exclusive, and undisturbed

possession of their lands and ...fisheries...so long as it is

their wish and desire to retain the same in their possession."

This led to an understandable dispute about whether this meant

all lands claimed by the Maori (which included 95% of the

Colony), or lands actually occupied and cultivated by them. The

Colonial Office, reluctantly, decided it had to support the view

most favourable to the Maori although it thought the drafters of

the Treaty had greatly exceeded their authority. This

favourable view, for the Maori, was accepted by the Court in R.

v. Symons upon its construction of the Treaty.

In giving his judgment in Symons, Chapman J. suggested that

this view "did not assert either in doctrine or in practice

anything new and unsettled." Chapman J. referred to "the Common

Law of the British Colonies" but I am not satisfied his views

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ever were the law in colonial North America, particularly in the

original colonies, prior to the Royal Proclamation.

There was, of course, no treaty similar to the Treaty of

Waitangi in this province.

Secondly, before its division into Upper and Lower Canada,

the Province of Canada in 1857 sent a representative to London

as an observer at proceedings of a Select Committee of the House

of Commons on the Hudson's Bay Company. There he spoke of

earlier treaties and of the need to deal justly with the Indians

by not depriving them of their property "...without a reasonable

compensation." When asked about extinguishing Indian title to

Lord Selkirk's land, Edward Ellice, M.P., a shareholder in the

Company, said:

"We are getting into a question about Indian

title, which is very difficult altogether.

The English Government never extinguished

the Indian title in Canada when they took

possession; the Americans, while they have

been extending their possessions, have

extinguished the Indian title, but in Canada

there has never been any treaty with the

Indians to extinguish the title; the Crown,

retaining certain reserves for the Indians,

has always insisted upon the right to occupy

the lands, and to grant the lands."

(Ex. 1183 p. 347)

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In response to a letter from a clergyman from the Red River

Settlement, who argued for land cession treaties with the

Indians, Herman Merivale, the Permanent Under Secretary of State

for the Colonies wrote in 1858:

"This letter alludes to one matter which is

new to me...I mean the claims of Indian

tribes over portions of Lord Selkirk's land

& generally over the territories comprised

in the [Hudson's Bay Company] Charter - The

Americans have always taken care to

extinguish such rights however vague - We

have never adopted any very uniform system

about them. I suppose the H.B.C. have never

purchased from such claimants any of their

land. And I fear (idle as such claims

really are, when applied to vast regions of

which only the smallest portion can ever be

used for permanent settlement) that the

pending discussions are not unlikely to

raise up a crop of them."

Tab 1 p.261)

(Ex. 1056-25,

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In reply to another inquiry about the Red River Settlement,

particularly "whether the Imperial government intended to

recognize the proprietary rights of the Indians in the soil,"

Merivale said:

"...In the old days no one ever thought of

recognizing 'territorial rights' in Indians.

Charles the Second simply made over to the

Bay Company the freehold of the soil in

their Charter territory. According

therefore to English real property notions,

the Indians had no 'territorial rights'

within that territory at all...

I think it might be pretty safely assumed,

that no right of property would be admitted

by the Crown as existing in mere nomadic

hunting tribes over the wild land adjacent

to the Red River Settlement. But that

agricultural Indian settlements (if any such

exist) would be respected and that hunting

ground actually so used by the Indians would

either be reserved to them or else

compensation made." (Ex. 1201-1, Tab 2, p.

201d)

There are, of course, many other comments to the opposite

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The Authorities, And Some Comments

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effect but it is impossible to know whether the authors were

writing of village sites, or the whole country. Even in the

quotation from Merivale, there is a lack of definition of

"hunting grounds."

Upper Canada, being Royal Proclamation country, entered

into the Robinson-Huron and Robinson-Superior treaties of 1850,

and the Manitoulin Island Treaties of 1862 with Indians to which

aboriginal interests were ceded in exchange largely for Reserves

although some minor annuities were also paid.

After Confederation in 1867 Parliament by a Joint Address

to the Imperial Parliament requested that steps be taken to

unite Rupert's Land and the North West Territory with Canada.

By this time the boundaries of British Columbia had been clearly

settled, and what they were talking about was all of the

Canadian west and north-west except Manitoba and British

Columbia. Parliament represented that:

"...upon the transference of the territories

in question to the Canadian Government, the

claims of the Indian tribes to compensation

for lands required for purposes of

settlement will be considered and settled in

conformity with the equitable principles

which have uniformly governed the British

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Crown in its dealings with the

aborigines...."

(Ex. 1203-1; s. I, Tab l, Sched. A, p. 264)

In fact, however, the terms by which Rupert's Land was

transferred to Canada imposed no obligation upon Canada, only

that:

"8. It is understood that any claims of

Indians to compensation for lands required

for purposes of settlement shall be disposed

of by the Canadian Government, in

communication with the Imperial Government,

and that the Company shall be relieved of

all responsibility in respect of them."

(Ex. 1203-1; s. I, Tab 1, Sched. B, p. 267)

But in accepting the terms agreed upon, Parliament only

resolved in 1869:

"That upon the transference of the

territories in question to the Canadian

government, it will be the duty of the

Government to make adequate provision for

the protection of the Indian tribes whose

Interests and well-being are involved in the

transfer."

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At just this time there was considerable disquiet in a part

of Rupert's Land called the Red River Colony which delayed the

completion of these arrangements for nearly a year. Some

residents of mixed blood were opposed to union with Canada,

fearing they would lose existing independence. Canada sent a

Commissioner, and later Lord Strathcona, both of whom gave many

assurances.

It is apparent that a theory of history was operating at

this time to create a mind-set in the Government of Canada which

was, to say the least, different from what some colonial

officials in British Columbia then believed about Indian

interests. Neither was entirely consistent and neither was

necessarily right or wrong. The existence of these different

views became a source of considerable controversy shortly after

British Columbia joined the Canadian Confederation. Some modern

jurisprudence, (particularly cases such as Guerin and Sparrow)

might not have completely surprised many of these early colonial

officials because it was not really disputed that the Indians

did indeed have aboriginal interests of some sort in the lands

and waters which they actually used for subsistence. On the

other hand, I believe the plaintiffs' claim for ownership,

except as to village sites, etc., and their claim for

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jurisdiction would have shocked them greatly.

Discussions about a possible union with Canada began in

earnest with a communication dated August 14, 1869 from the

Colonial Secretary, Lord Granville, advising that, as

arrangements with the Hudson's Bay Company seemed to be nearing

completion, the union of British Columbia with Canada should be

considered. He mentioned, however, that it would be necessary

for the Governor "...to enter personally upon many questions,

[such] as the condition of Indian tribes..."

The foregoing, and many other dispatches back and forth

between officials of the colony, Canada, and the Colonial

Office, make it abundantly clear that the attitude of the

provincial officials was clearly understood in Ottawa and

London. For example, on February 20, 1870 Governor Seymour sent

a copy of his opening statement to the Legislature to the

Governor-General of Canada in which he stated:

"In Lord Granville's Despatch No. 84 of 14th

August which was communicated to Your

Excellency he mentioned the condition of the

Indian Tribes as among some questions upon

which the constitution of British Columbia

will oblige the Governor to enter

personally. I have purposely omitted any

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reference to this subject in the terms

proposed to the Legislative Council. Any

arrangements which may be regarded as proper

by Her Majesty's Government can I think best

be settled by the Secretary of State, or by

me under his direction, with the Government

of Canada. But 'Indians' and 'Lands

reserved for Indians' form the twenty fourth

of the classes of subjects named in the 71st

Section of the Union which are expressly

reserved to the Legislative authority of the

Parliament of the Dominion." (Ex. 1201-1

Tab 13)

I do not find it necessary to detail the negotiations for

the Union of British Columbia with Canada which became effective

on July 20, 1871, for there is a singular lack of a written

record of these discussions which were conducted in Ottawa

except for Dr. Helmcken's brief diary entries, one of which

states:

"The clause about Indians was very fully

discussed. The Ministers thought our system

better than theirs in some respects, but

what system would be adopted remained for

the future to determine. I asked about

Indian Wars and Sir G. Cartier said that it

depended upon the severity, as a rule the

expense would have to be borne by the

Dominion Govt."

(Ex. 1201-1, Tab 19, p. 357)

I have no reason to doubt that the policy mentioned by Dr.

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The Authorities, And Some Comments

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Helmcken was the policy established by Governor Douglas as

already described.

It may be significant to note that, at the same time,

Canada was negotiating for union with the "province" of

Assiniboia, later a much enlarged Manitoba, and there was much

discussion about buying up the "Indian title," although that

term seems not to have been specifically defined. Canada also

commenced the negotiation of the Numbered Treaties, the first

two of which were completed in 1871. In the House of Commons

debates on the Manitoba Bill, Sir John A. Macdonald said in

connection with "Metis":

"...With respect to the lands that are

included in the Province, the next clause

provides that such of them as do not now

belong to individuals, shall belong to the

Dominion of Canada...There shall, however,

out of the lands there, be a reservation for

the purpose of extinguishing the Indian

title, of 1,200,000 [later amended to

1,400,000] acres...This reservation, as I

have said, is for the purpose of

extinguishing the Indian title and all

claims upon the lands within the limits of

the Province...It is, perhaps, not known to

a majority of this House that the old Indian

titles are not extinguished over any portion

of this country, except for two miles on

each side of the Red River and the

Assiniboine [this exception is a reference

is to the Selkirk Treaty of 1817]."

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(Ex. 1203-1; s. I, Tab 10, col. 1292-93)

There was, of course, no similar provision in the Act of

Union with British Columbia. In the House of Commons debate on

union with British Columbia, Cartier stated that while certain

lands had been reserved for Indians in the province, "...the

only guarantee that was necessary for the future good treatment

of the Aborigines was the manner in which they had been treated

in the past."

The plaintiffs argue that the Dominion's officials were

misled by the province but it is impossible to reach any

conclusion on that question. Later views expressed by Dominion

officials indicate that there may have been a misunderstanding

but even that is difficult to describe accurately. The

disagreement which later arose centred largely around the size

of reserves and the question of extinguishing "Indian title,"

not about the actual conditions of the Indians. I doubt if

there could have been what Dr. Helmcken described as a "very

full" discussion, without the Dominion officials learning that

the colony did not admit the existence of any "Indian title".

The Terms of Union with Canada, of course, included, (a)

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Term 13, and (b) the adoption of ss. 91 and 92 of the then

British North America Act, 1867, and (c) s. 109 of that Act

which placed all the public lands of the [province] under the

control of the Local Government subject to existing "Interests".

Term 13, which is a part of the Constitutions of Canada and

British Columbia provides:

"13. The charge of the Indians, and the

trusteeship & management of the lands

reserved for their use and benefit, shall be

assumed by the Dominion Government, and a

policy as liberal as that hitherto pursued

by the British Columbia Government, shall be

continued by the Dominion Government after

the Union. To carry out such policy tracts

of land of such extent as it has hitherto

been the practice of the British Columbia

Government to appropriate for that purpose,

shall from time to time be conveyed by the

local Government to the Dominion Government

in trust for the use and benefit of the

Indians on application of the Dominion

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Government; and in case of disagreement

between the two Governments respecting the

quantity of such tracts of Land to be so

granted, the matter shall be referred for

the decision of the Secretary of State for

the Colonies."

Sec 91 (24) provided, and still provides:

It shall be lawful for the Queen, by

and with the Advice and Consent of the

Senate and House of Commons, to make Laws

for the peace, Order, and good Government of

Canada, in relation to all Matters not

coming within the Classes of Subjects by

this Act assigned exclusively to the

Legislatures of the Provinces; and for

greater Certainty, but not so as to restrict

the Generality of the foregoing Terms of

this Section, it is hereby declared that

(notwithstanding anything in this Act) the

exclusive Legislative Authority of the

Parliament of Canada extends to all Matters

coming within the Classes of Subjects next

herein-after enumerated: that is to say:

...

24. Indians, and Lands reserved for

the Indians...

In view of what later occurred, it is my view that there

was at most a misunderstanding between Dominion and British

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Columbia officials about the Indian problem in the province.

Dr. Helmcken's diary, which is the only real evidence on this

question, supports the province but there are always

opportunities for misunderstanding when strong-willed men sit

down to discuss a great number of vast, multi-dimensional

problems. In such a milieu one's understanding is often

conditioned by what he thinks others mean rather than by what

the speaker actually says or means. There is no profit in

attributing blame or bad intentions on anyone from this great

distance.

In any event, Canada soon became aware of the situation

because of the visit of Canada's Minister of Public Works,

Hector Langevin, who came to British Columbia in 1871. His

report includes a section on Indians, including a report from

Chief Justice Begbie. After mentioning the great number of

tribes which would make a general treaty impossible, Chief

Justice Begbie said:

"They are in that state of powerlessness and

respect for the superior power, numbers, and

arrangements which that race would,

consistently with self-respect and humanity,

think proper, would readily be adopted by

the natives.

"Their chief anxiety always is about their

reserves of land which, perhaps necessarily,

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have not always been made in accordance with

their wishes. The manner in which they hold

and occupy land (village communities

frequently occupying and cultivating

irregularly detached plots) is a tenure

scarcely intelligible to English notions of

property in land at all; and they have an

affection for particular little bits of land

(which seems a feeling common to humanity,

savage or civilized), which, probably is

exceedingly inconvenient to a surveyor, and

is not always, in our view, very

reasonable."

(Ex. 1203-1: s. II, Tab 1, p. 26-27)

Langevin declined to make any recommendations regarding the

future treatment of Indians, but he attached to his report both

the 1870 memorandum prepared by Trutch which denied any Indian

title, and a second critical memo prepared by the Anglican

Bishop of British Columbia which recommended treaties to

extinguish Indian title. Langevin further advised strongly

against adoption of the American system of confining Indians to

reserves.

By this time Trutch had been appointed Lieutenant-Governor.

On September 26, 1871 he wrote to the Secretary of State for the

Provinces in Ottawa in response to an enquiry about a grant of

funds to the Anglican Church for Indian purposes. After

expressing the view that the charge of the Indians was

"...amongst the most critical and direct responsibilities" of

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the Dominion, and after advising against grants to third parties

for Indian purposes, he said:

"As to the Indian policy hitherto of the

Government of British Columbia, for,

although not a written code based on

legislation, the policy of the Government in

Indian affairs has been 'definite and

tangible' - a well considered system, ably

devised by experienced men specially

interested in favour of the Indians, to suit

the circumstances of this Country, and

consistently carried out so far as the

pecuniary means at command would admit of

(as proof of which I need only point to the

remarkable freedom from Indian disturbances,

few in number as we have seen, scattered

through this immense territory among some

fifty thousand Indians.) I would observe,

that in direct contrast with the Indian

system of the United States, [which proposed

that all Indians would live on reserves]

...the one adopted in this Province does not

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appear to me to require reform, but greater

development..." (Ex. 1182, p. 99-100)

The Bishop's report, however, included some specific

charges of neglect. In partial answer, Trutch sent to the

Secretary of State for the Provinces a copy of his January 1870

Memorandum mentioned above, and then concluded:

"But I contend that the policy which has

prevailed in British Columbia since its

settlement by Europeans, has been

essentially benevolent towards the Indians;

that the degree of civilization which we

have introduced into their country has in

fact conferred infinite benefits upon them,

although bringing with it all the evils

incidental to its vices; and that this

system needs not change or reform, but only

increased means to bring out its real merits

and capabilities. And chiefly I urge that

the grave responsibility which the

Government of the Dominion has undertaken

towards these Indians and to the people of

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the Province in general respecting them,

should not be devolved on others from any

consideration whatever." (Ex. 1201-1, Tab

33, p. 101)

This typical Canadian dichotomy became manifest in the

Dominion Lands Act, 1872, which by s. 42 made the Act

inapplicable with respect to the settlement of agricultural land

or the granting of mineral or timber leases in any territory

"...the Indian title to which shall not at the time have been

extinguished." This provision remained in the Act until 1908 by

which time all or nearly all of the Canadian west, except for

British Columbia west of the Rockies, had been ceded by the

various prairie and northern tribes to Canada by numbered

treaties. I do not find it necessary to determine if this was

done in discharge of an obligation assumed under the agreement

with the Hudson's Bay Company, or whether those responsible for

Canada's policy at that time actually believed the prairie

Indians did indeed have some kind of aboriginal interests both.

This difference of opinion between the Dominion and British

Columbia is illustrated by the treatment of the British

Columbia "Railway Lands."

One of the costs of Confederation to

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the province was the huge block of land ceded to Canada for

railway purposes. Much of this land was transferred to the

Canadian Pacific Company and the balance returned to British

Columbia without any recognition that it was burdened in any way

by aboriginal rights. This is perfectly consistent with the

view of the province that there were no aboriginal rights, or

that they had been extinguished by colonial enactments. This

was later mentioned by Judson J. in Calder as an argument in

favour of extinguishment.

This transaction was inconsistent with the view generally

expressed by the Dominion because it transferred most of these

lands to the railway company as if they were free of Indian

claims.

In 1872 there was an incident at Kitseguecla, one of the

Skeena villages in the territory, where the village was burned

by an accidental fire, causing much apprehension and hostility.

On July 16 of that year Trutch wrote to Sir John A. Macdonald

mentioning the "troubles at Skeena" and urging the early

appointment of a Special Agent to take charge of Indian affairs

in the province. He said that the Indians, having learned that

a new system was to be adopted, were becoming restless and

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dissatisfied "...at having to wait so long for the good things

which they are told are in store for them," and that they

"appear to have of late become possessed with a spirit of

agitation which was not exhibited under our old Colonial form of

Government."

In October, 1872, after Canada appointed I.W. Powell to the

post of Indian Superintendent for British Columbia, Trutch again

wrote to the Prime Minister offering advice:

"...as to Indian policy I am fully satisfied

that for the present the wisest course would

be to continue the system which has

prevailed hitherto only providing increased

means for educating the Indians - and

generally improving their condition moral

and physical. The Canadian system as I

understand it will hardly work here - We

have never bought out any Indian claims to

lands nor do they expect we should - but we

reserve for their use and benefit from time

to time tracts of sufficient extent to

fulfil all their reasonable requirements for

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cultivation or grazing. If you now commence

to buy out Indian title to the lands of B.C.

you would go back of all that has been done

here for 30 years past and would be

equitably bound to compensate the tribes who

inhabited the districts now settled and

farmed by white people equally with those in

the more remote and uncultivated portions.

Our Indians are sufficiently satisfied and

had better be left alone as far as a new

system towards them is concerned - only give

us the means of educating them by teachers

employed directly by government as well as

by aiding the efforts of the missionaries

now working among them." (Ex. 1203-1; s.II,

Tab 6)

The Prime Minister replied:

"...I quite agree with you in your view

as expressed in your letter [of 14th] Oct

last respecting Indian matters generally,

and I hope to inaugurate a system for the

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management of the Indians both in British

Columbia & the North West which will be

satisfactory..." (Ex. 1203-1; s. II, Tab 7)

The Prime Minister also proposed establishing three-member

Indian Boards of Indian Commissioners to establish and direct

policy in the provinces and territories.

Canada's ambivalence continued when it printed a Bill

"respecting Indians and Indian Affairs" to be applicable in

British Columbia, Manitoba and the North West Territories, the

preamble of which recited the desirability of a uniform system

and practice. This Bill impliedly recognized a form of

aboriginal right because it provided that all lands

unsurrendered and unconveyed to the Crown and claimed by any

Indians would be placed in the care of the Superintendent. It

also invalidated any deed, lease or instrument purporting to

affect such lands. Other sections contemplated the negotiation

of treaties of cession and the payment of annuities.

This Bill was not enacted in 1872, or in 1874 when it was

reconsidered, probably because it was obviously beyond the power

of Canada to deal in this way with provincial Crown lands. In

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fact, on January 4, 1873 Mr. Powell was instructed that pending

the enactment of Dominion legislation his powers were limited by

the laws of the province. This marked the end of the search for

a uniform policy.

In June of 1873 Canada proposed to deal with the question

of aboriginal rights by the establishment of a Board of

Commissioners in the new Province of British Columbia. Order-in-

Council 860A, approved by Lord Dufferin (Governor-General of

Canada) and dated June 16, 1873, provided:

"On a memorandum dated 6 January 1873 from

the Secretary of State of the Provinces

calling the attention of your Excellency to

the expediency of some more efficient

organization of the management of Indian

Affairs in the Province of British

Columbia...

That this Board under the direction of the

Superintendent General of Indian Affairs at

Ottawa would suggest that general principles

under which the Indians are to be dealt

with, arrange under the directions of the

Superintendent General all negotiations and

treaties with the Indian tribes and report

from time to time the basis upon which all

questions of general policy re Indian

Affairs should be settled.

The Secretary of State recommends that a

Board of similar powers should be

constituted in British Columbia consisting

of the Lt. Governor and two subordinate

Commissioners - one of those to be a

Protestant the other a Roman Catholic - that

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they should be jointly the executive

officers, and should so alternate their

duties that one would always be at the head

office of Victoria ..."

(Ex. 1203-2; s. III, Tab 26)

These Boards were constituted for the western provinces and

territories but each with different instructions and

composition. In British Columbia the Board consisted of the

Lieutenant-Governor plus one Protestant and one Roman Catholic,

and there were no instructions given to them to negotiate

treaties as in the other regions. The British Columbia Board

never functioned and it was cancelled in 1875.

In a letter to Trutch dated April 9, 1874, the Prime

Minister expressed the view that the Lieutenant-Governor should

be involved if "...treaties or important negotiations were made

or entered upon..."

In 1874, however, while the Boards were still in place,

Canada passed an Order-in-Council dated May 19, 1874 purporting

to instruct the Commissioners for British Columbia, in which it

was:

"... assumed that the Government does not

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contemplate giving the Indians of British

Columbia any compensation for their lands,

as has been done with the Indians of the

North West, and he the Minister submits that

in view of the general discontent now

prevailing amongst the former, it would be

advisable to spend a small sum annually in

the distribution amongst them of useful

presents..." (Ex. 1203-1; s. III, Tab 7, p.

1)

The Governor-General, Lord Dufferin, while approving this

Order-in-Council, appended a note: "Why is a different system

pursued in B.C. with regard to Compensation to Indians from that

in the N.W. Territories?" There were, of course, many reasons

why there could be a different policy on the prairies as

compared with British Columbia. The prairie Indians were

nomadic hunters; the British Columbia Indians lived in villages

near great rivers and subsisted mainly on the steady supply of

salmon which they harvested each year. There is no evidence the

Indians of the territory were nomadic, indeed there is much

evidence they were not. In addition, there were vast unused

regions of the prairies, while usable land in British Columbia

has always been extremely scarce. It was possible for Canada to

make payments had it chosen so to do, and this illustrates,

again, the difficulties of a divided responsibility.

Just one week later Royal Assent was given to a Dominion

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Act to amend certain Laws respecting Indians, and to extend

certain Laws relating to matters connected with Indians to the

provinces of Manitoba and British Columbia (1874) 37 Vict. C. 21

which precluded furnishing liquor to Indians. However, most of

the Act could not be applied to this province because it tied

the definition of an Indian to a person who was receiving

annuities, none of which were payable here. As a consequence,

there was an amendment in August, 1874 making the Act

inapplicable to British Columbia. This was another difficulty

caused by divided jurisdictions.

In correspondence regarding the functions of the Indian

commissioners in June 1874, the Dominion Minister of the

Interior advised by telegram "...no treaties or special

negotiations now necessary."

It was at this point that a serious dispute arose between

British Columbia and Canada on several questions including the

size of Indian Reserves. These matters are largely covered in

Exhibit 1138, entitled "Indian Land Question, 1850 - 1875, 1877"

printed in 1875 by British Columbia.

On October 12, 1874, in response to a letter from Mr.

Lenihan, one of the Commissioners, the Provincial Secretary

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wrote that:

"...all that is 'reasonable and just' to

demand of the Provincial government is that

the 13th section of the Terms of Union

should be faithfully observed. Should the

dominion Government be of opinion that

concessions beyond those provided for in the

said Section are necessary, it becomes the

duty of that Government to make provisions

accordingly." (Ex. 1182, p. 184)

Also that month James Douglas, the former governor, wrote

in reply to an enquiry from the Commissioners:

"...in laying out Indian Reserves, no

specific number of acres was insisted on.

The principle followed in all cases was to

leave the extent and selection of the land

entirely optional with the Indians who were

immediately interested in the Reserve; the

surveying officers having instructions to

meet their wishes in every particular, and

to include in each Reserve the permanent

village sites, the fishing stations and

burial-grounds, cultivated land, and all the

favourite resorts of the tribes, and, in

short, to include every piece of ground to

which they had acquired an equitable title

through continuous occupation, tillage, or

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other investment of their labour. This was

done with the object of securing to each

community their natural or acquired rights;

of removing all cause for complaint on the

ground of unjust deprivation of the land

indispensable for their convenience or

support, and to provide as far as possible

against the occurrence of agrarian disputes

with the white settlers." (Ex. 1203-2; s.

III, Tab 16, p. 36)

Some writers have suggested Douglas was incorrect in

this statement for in his last address to the Legislature he

stated that reserves did "...in no case exceed the proportion of

ten acres for each family." Some writers suggest that Douglas

was generous about reserves while others disagree. Again, I do

not find it necessary to pass on this question except to say

that I find no necessary inconsistency in the two statements

attributed to him.

As a consequence of this and other information the Minister

of the Interior, David Laird, prepared an extensive memorandum

dated November 2, 1874 which was printed in two different

versions. One copy was sent to the province on November 14,

1874, and is found in the British Columbia Papers just

mentioned. The other version, with alterations made by Lord

Dufferin, was sent to the Colonial Office in London.

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The most important differences between the two versions are

in the paragraph which purports to describe the understanding

between the two governments with respect to Term 13 of the Terms

of Union. This is what was sent to the Lieutenant Governor of

British Columbia:

"When the framers of the Terms of

admission of British Columbia into the Union

inserted this provision [Term 13], requiring

the Dominion Government to pursue a policy

as liberal towards the Indians as that

hitherto pursued by the British Columbia

Government, they could hardly have been

aware of the marked contrast between the

Indian policies which had, up to that time,

prevailed in Canada and British Columbia

respectively."

(Ex. 1182, p. 152)

As altered and sent to the Secretary of State for the

Colonies, the paragraph reads:

"When the framers of the terms of

admission of British Columbia into the Union

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inserted this provision requiring the

Dominion Government to pursue a policy as

liberal towards the Indians as that hitherto

pursued by the British Columbia Government,

they could hardly have been aware of the

marked contrast between the Indian policy

which has always been pursued in Canada and

the policy which is sought to be enforced in

British Columbia." (Ex. 1203-2; s. III Tab

16, p. 7)

Mr. Laird was not a member of the Government which

negotiated the Terms of Union, and he was probably not aware of

Dr. Helmcken's assertion that the clauses relating to Indians

were fully discussed. It is not known if Mr. Laird was aware of

Trutch's January 1870 report which described the position of the

province and which was sent to the Colonial Office and would

probably have been distributed to the appropriate officials in

Ottawa.

The first version of Mr. Laird's memorandum recognized that

the Indian policy in the Colony of British Columbia was

different from Canada's at the time of Union. The altered

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version suggests otherwise.

There was another alteration -- also unfavourable to the

Province, and also suggesting that it sought to adhere to a

policy different from that pursued by the Colony. It occurs in

the paragraph following the one discussed above. The version

sent to the Lieutenant Governor of British Columbia was:

"Whereas in British Columbia, ten acres of

land was the maximum allowance for a family

of five persons, in old Canada the minimum

allowance for such a family was eighty

acres: and a similar contrast obtained in

regard to grants for education and all other

matters connected with Indians under the

respective Governments. Read by this light,

the insertion of a clause guaranteeing the

aborigines of British Columbia the

continuance by the Dominion Government of

the liberal policy heretofore pursued by the

Local Government, seems little short of a

mockery of their claims."

(Ex. 1162, p. 152)

The version sent to the Secretary of State for the Colonies

says:

"...Read by this light, the insertion of a

clause guaranteeing the aborigines of

British Columbia the continuance by the

Dominion Government of a policy as liberal

as now pursued by the Local Government,

seems little short of a mockery of their

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claims." [Altered passages emphasized].

(Ex. 1203-2; s. III, Tab 16, p. 7)

The documents disclose: "These changes in the original

draft were made on the copy sent by H. E. [His Excellency] the

GG [Governor General] to the Colonial Secy - at His Excy's

request. 4/12/74 EAM."

The changes in the Privy Council document made at the

instance of Lord Dufferin would seem to suggest that a change of

policy occurred when British Columbia became a province -- that

is, after the Colonial Office ceased to have direct

responsibility for the supervision of the Colony's handling of

Indian Affairs. I mention these matters only because they may

be useful in considering the weight to be attached to some later

remarks of the Governor-General which will be mentioned in due

course.

As already mentioned, comparisons with grants of acreage

for reserves must reasonably be expected to vary between

provinces. In mountainous areas of British Columbia where

usable land is scarce, and in areas where the Indian diet

consisted almost exclusively of salmon taken from the sea or the

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great rivers, there was less need for large reserves. As a

result, numerous small reserves were allocated. On the

prairies, on the other hand, where the Indians were more nomadic

and lived off the hunt, much larger reserves were required and

allocated. Presumably Mr. Laird understood this reality, but

his memo gives no such indication. It should be noted further

that no quota had been established by Canada at the time of the

Terms of Union, and that none of the pre-Confederation land

cession treaties were based upon such a quota. Acres per family

were first used in a treaty on the prairies after British

Columbia united with Canada.

Mr. Laird's comparison for the purposes of grants for

education, however, may be more appropriate. Such grants were

then a matter for Canada which had jurisdiction to enrich the

former policy of the province.

Mr. Laird recited the attempt, by an Order-in-Council dated

March 21, 1873, to impose a policy of 80 acres for every head of

a family of 5. This was rejected by the province which

countered with an allowance of 20 acres. This was confirmed by

a provincial Order-in-Council. Mr. Laird complained that the

province then attempted to limit such largesse to new reserves

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only, and not to use it as a policy for enlarging reserves

already established at the time of confederation.

Mr. Laird went on to explain that the Commissioners, not

being satisfied with 20 acres, suspended surveys which he

described as a

"...step calculated to aggravate

the discontent and alarm of the

Indians...and will in a great

measure, help to keep open the

long pending dispute between the

white settlers and the

Indians...which, in the summer of

1873, nearly led to an outbreak of

the Indian population of the

province...."

I assume Mr. Laird was referring to the incidents at

Kitseguecla and in the Chilcotin. Mr. Laird quoted Commissioner

Powell as saying, "If there has not been an Indian War, it is

not because there has been no injustice to the Indians, but

because the Indians have not been sufficiently united."

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He also said that, "To the Indian, the Land Question far

transcends in importance all others, and its satisfactory

adjustment in British Columbia will be the first step towards

allaying the widespread and growing discontent now existing

among the native tribes of that Province."

Mr. Laird also alluded to complaints by Indians that lands

used by them had been pre-empted, and that grazing lands had

been leased to settlers. Then, after complimenting the Dominion

Government for the liberality of its treatment of the Indians,

(including the allocation of $54,000 expected to be spent that

year), and urging the Government to "...look beyond the terms

[of Union], and be governed in their conduct towards the

aborigines by the justice of their claims, and by the

necessities of the case," Mr. Laird recommended:

"The undersigned would therefore

respectfully recommend that the Government

of the Dominion should make an earnest

appeal to the Government of British

Columbia--if they value the peace and

prosperity of their Province, if they desire

that Canada, as a whole, should retain the

high character she has earned for herself by

her just and honourable treatment of the red

men of the forest--to reconsider, in a

spirit of wisdom and patriotism, the Land

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grievances of which the Indians of that

Province complain, apparently with good

reason; and take such measures as may be

necessary, promptly and effectually, to

redress them." (Ex. 1203-1; s. III, Tab 14)

This memorandum and the above recommendation were approved

by Order-in-Council passed 2 days later. It recommended that a

copy of Mr. Laird's Report be sent to Lord Carnarvon, the

colonial Secretary, so that he might understand, "...in all its

bearings, the great national question now seeking solution at

the hands of the Dominion and British Columbia Governments."

I have already mentioned the different texts of Mr. Laird's

Report. Lord Dufferin immediately sent the version most

unfavourable to British Columbia to Lord Carnarvon with a

covering memorandum "invoking your Lordship's interference."

His Excellency, in language undoubtedly drafted for him by

his advisors, described the two policies:

"In Canada the accepted theory has been,

that while the sovereignty and jurisdiction,

over any unsettled territory is vested in

the Crown, certain territorial rights, or at

all events rights of occupation, hunting and

pasture, are inherent in the aboriginal

inhabitants.

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As a consequence, the Government of Canada

has never permitted any lands to be occupied

or appropriated, whether by corporate

bodies, or by individuals, until after the

Indian title has been extinguished, and the

districts formally surrendered by the tribes

or bands which claimed them, for a

corresponding equitable consideration.

In British Columbia this principle seems

never to have been acknowledged. No

territorial rights are recognised as pre-

existing in any of the Queen's Indian

subjects in that locality. Except in a few

special cases dealt with by the Hudson Bay

Company before the foundation of the Colony,

the Indian title has never been extinguished

over any of the territories now claimed as

Crown property by the Local Government, and

lands have been pre-empted and appropriated

without any reference to the consent or

wishes of their original occupants."

(Ex. 1203-2; s. III, Tab 16, p. 1-5)

He went on to refer to the letter from Sir James Douglas

just mentioned and concluded that it would be manifestly unfair

to treat the Indians of British Columbia differently from those

of the rest of Canada. There can be no doubt that the Governor-

General was motivated by the highest morality but he seems to

have confused the question of extinguishing aboriginal interests

with the size of reserves.

Lord Dufferin also sent two private letters to the colonial

Secretary dated November 26 and December 21, 1874 in which he

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expressed some very strong opinions on the conduct of the

province. In the first one he said he would be sending:

"...a very important Despatch covering an

Order in Council relative to the

unsatisfactory position of the Indian

question in British Columbia. That Province

appears to be treating its Indian subjects

with great harshness. It does not recognize

any obligation to extinguish the Indian

title, before dealing with the Crown Lands."

(Ex. 1040-86)

In the second letter to Carnarvon, Dufferin wrote:

"I don't think I have written to you

privately on the subject of the long

'British Columbia

Indian' Despatch I had

to send you. I don't think that there is

anything to add to the case set forth in the

official papers. The B.C.'s have evidently

been behaving very badly, and they certainly

should be required to extinguish the Indian

title before assuming possession of the

lands, which is the universal principle

observed in every province of the Dominion,

but the truth is British Columbia is hardly

a large enough Community to have as yet

developed a conscience."

(Ex. 1203-2; a. III, Tab 17, p. 125)

Lord Carnarvon, however, declined to interfere or even

comment on His Excellency's suggestions, preferring to await a

response from the province which did not arrive until August 18,

1875 when the Attorney-General Mr. Crease made a long report

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which I shall mention in a moment. In the meantime, however,

other events were occurring.

The province passed a new "Land Act" in March 1874 which

repealed the Land Ordinance, 1870. This new Act was the subject

of a Report dated January 19, 1875, prepared by Mr. Hewitt

Bernard, the Deputy Minister of Justice. He observed that there

was not in the Act "...any reservation of lands in favour of the

Indians or Indian tribes ...nor are the latter thereby accorded

any rights or privileges in respect to lands or reserves or

settlements."

He also mentioned the November 4, 1874 Order-in-Council and

then said:

"But, having regard to the known existing

and increasing dissatisfaction of the Indian

tribes of British Columbia at the absence of

adequate reservations of lands for their

use, and at the liberal appropriation for

those in other parts of Canada upon

surrender by treaty of their territorial

rights, and the difficulties which may arise

from the not improbable assertion of that

dissatisfaction by hostilities on their

part, the undersigned deems it right to call

attention to the legal position of the

public lands of the Province.

The undersigned believes that he is

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correct in stating that, with one slight

exception as to the land in Vancouver's

Island surrendered to the Hudson's Bay

Company (which makes the absence of others

the more remarkable), no surrenders of lands

in that Province have ever been obtained

from the Indian tribes inhabiting it, and

that any reservations which have been made

have been arbitrary on the part of the

Government, and without the assent of the

Indians themselves; and though the policy of

obtaining surrenders at this elapse of time

and under the altered circumstances of the

Province may be questionable, yet the

undersigned feels it his duty to assert such

legal or equitable claim as may be found to

exist on the part of the Indians.

There is not a shadow of doubt that from

the earliest times England has always felt

it imperative to meet the Indians in

Council, and to obtain surrenders of tracts

of Canada as from time to time such were

required for the purposes of settlement.

(Ex. 1203-2; s. III, Tab 16, p. 46-50)

Mr. Bernard then referred to the Treaty of Capitulation of

Montreal in 1760 and the Royal Proclamation, 1763, but concluded

that it was not necessary to determine if the latter applied to

British Columbia as "...it was sufficient...to ascertain the

policy of England in respect to the acquisition of the Indian

territorial rights, and how entirely that policy has been

followed...except in the instance of British Columbia."

Although there had not been any land cession agreements

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between Indians and the Crown either in right of Great Britain

or Canada in Labrador, the Maritime provinces or in Quebec at

that time, the Minister of Justice joined in the recommendation

that the British Columbia Act be disallowed by Canada on the

grounds, as stated on p. 51 of the Report, that the title of the

province to its public lands was subject to s. 109, and:

"That which has been ordinarily spoken of as

the 'Indian Title' must of necessity consist

of some species of interest in the lands of

British Columbia. If it is conceded that

they have not a freehold in the soil, but

that they have an usufruct, a right of

occupation or possession of the same for

their own use, then it would seem that these

lands of British Columbia are subject, if

not to a 'trust existing in respect

thereof,' at least 'to an interest other

than that of the Province alone.'" (Ex.

1203-2; s. III, Tab 20, p. 51)

Notwithstanding these reasons, the Report went on to

suggest that such disallowance would not cause any great

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inconvenience in the disposal of public lands as the former Act

could be used for that purpose. This seems quixotic. The

British Columbia Act was accordingly disallowed by Order in

Council dated January 23, 1875. As counsel pointed out in

argument, the two main issues between the governments relating

to Indians, that is title and acreage, were truly engaged.

But there was more, for on April 8, 1875 Canada extended

its Dominion Land Acts, l872 and 1874 to all lands to which

Canada was, or might become, entitled to in British Columbia

which referred to the 40-mile wide "Railway Belt" the province

was required to transfer to Canada for railway purposes, plus

the 3 1/2 million acres (the Peace River Block) which was

compensation for lands within the belt which had been alienated

while the decision was being made on the route of the railway.

The significance of this, of course, was s. 42 of the 1872 Act,

which provided:

"None of the provisions of this Act

respecting the settlement of Agricultural

lands, the lease of Timber Lands, or the

purchase and sale of Mineral lands, shall be

held to apply to territory the Indian Title

to which shall not at the time have been

extinguished."

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The application of this section to British Columbia had a

short shelf-life for it was repealed in 1780. Moreover Canada

had disposed of large portions of these lands without regard to

the existence of any aboriginal interest in them, and reconveyed

the residue to the province in 1930, again without any provision

for Indians.

In order to respond to the Dominion, the Attorney-General,

Mr. Walkem prepared a report dated August 17, 1875, which I have

already mentioned. To this report were attached the 1870 Report

of Mr. Trutch and two letters from William Duncan, a missionary,

who will be mentioned later.

After defining the question as, "What assistance in land

shall British Columbia now give to enable the Dominion to carry

out her Indian policy?" the Attorney thought it necessary to

give a brief sketch of the Indian policy of the Crown Colony

"with a view of removing the very unjust impressions respecting

it which have been created in the public mind by the publication

of the Report of the Minister of the Interior."

He then stated, perhaps incorrectly, that "...the policy of

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the Dominion aims at a concentration of the Indians upon

Reserves, while that of the Crown Colony, besides granting

Reserves in cases where the Indians preferred them, courted

rather an opposite result."

He continued:

"...Under this policy the Natives were

invited and encouraged to mingle with and

live amongst the white population with a

view of weaning them by degrees from savage

life, and of gradually leading them by

example and precept to adopt habits of

peace, honesty, and industry. It is true

that this step was not unattended with some

of the well-known evils which are

unfortunately inseparable from the attempted

fusion of savage and civilized races, but

these defects it was believed would in time

have been largely removed by the application

of proper remedies....

Such is but an imperfect sketch of the

Colonial Indian Policy which was founded in

1858 and determined in 1871. It was based

on the broad and experimental principle of

treating the Indian as a fellow subject.

The principle was, at least, a lofty one,

and worthy of an enlightened humanity. Like

others of its kind, it had its trials; but

it also had its rewards, for, through its

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influence, the Colony was enabled on the day

of Confederation to hand over to the

trusteeship of the Dominion, a community of

40,000 Indians--loyal, peaceable, contented,

and in many cases honest and industrious.

This fact is in itself the best commentary

that can be offered upon the policy pursued

towards the Indians during the 13 years

preceding Confederation." (Ex. 1182, p. 2)

In his report the Attorney-General referred to the

disagreement with Canada on the size of reserves, mentioning

that 10 acres for a family of five, which was not uncommon in

the Colony at the time of Confederation would require about

80,000 acres for an assumed Indian population of 40,000, whereas

the Dominion was requesting 80 acres per family or 640,000

acres. The compromise then offered by the Dominion was 20 acres

per family or a total of 160,000 acres.

Urging that the province not be expected to agree to a

formula which did not take into account "the habits and

pursuits" of the Indians, and the physical characteristics of

the province, the Attorney offered a solution which was

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suggested by the missionary Duncan.

Mr. Duncan later became a controversial figure in the

history of the Indian question of the province, and he is

sometimes alleged to be the "inventor" of aboriginal ownership

of the province. He showed considerable foresight when he said,

on May 15, 1875:

"Let me then first assure the Government

that I believe the present organization of

the Indian Department in British Columbia

can never work successfully, and that

however sincerely desirous those who now

exercise the management of Indian affairs

may be to do their duty, to my mind so

palpably defective and misdirected are their

labours, that I fear when the Government and

the public come to look for results, they

will be sorely disappointed." (Ex. 1182, p.

18)

One hundred and fifteen years later, some believe the same

may still be stated with considerable confidence.

Mr. Duncan called for decentralization of authority;

resident superintendents with each of the main tribes; native

constables; native councils; one large reserve for each language

group plus traditional fishing stations, all as far removed from

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white settlements as possible; the abolition of money gifts to

Indians as money spent on them tends to alienate them, although

small sums wisely spent will yield much good. In this regard he

said:

"To treat Indians as paupers is to

perpetuate their baby-hood and

burdensomeness. To treat them as savages

whom we fear and who must be tamed and kept

in good temper by presents, will perpetuate

their barbarism and increase their

insolence" and that gifts should be given

"only to assist those who are endeavouring

to rise higher in social life and are law-

abiding subjects of her Majesty." (Ex. 1182,

p. 15)

Nowhere in either of the two letters of Mr. Duncan was

there any mention of Indian title, although he later became a

strong advocate of enhanced Indian legal rights.

The Attorney accordingly recommended that there be no fixed

acreage formula for reserves; that the Dominion appoint an agent

for the "proper adjustment of Indian claims"; that reserves,

including agricultural, wild, and forest land be set aside for

each "Nationality of Indians"; that the reserves be adjusted

from time to time by increase or decrease according to

population with excess land being returned to the province; and

that present local reserves be conveyed to the province.

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Accordingly, on August 18, 1875 the province responded to

Canada by an Order-in-Council of that date, which:

"...concur[s] with the statements and

recommendation contained in the Memorandum

of the [Attorney-General]...dated Aug. 17,

1875, and advise that it be adopted as the

expression of the views of this Government

as to the best method of bringing about a

settlement of the Indian Land Question."

In response, by Order in Council dated November 10, 1875,

Canada proposed alternatives, none of which mentioned Indian

title:

1)

2)

That a three-member Commission, consisting

of representatives of both governments and a

Joint Commissioner, be appointed.

The Commission would "fix and determine for

each Indian nation (i.e. all tribes speaking

the same language), separately, the number,

extent, and locality of the Reserve or

Reserves to be allowed to it."

3)

4)

There would be no fixed basis for

determining acreage.

The Commissioners would be "guided generally

by the spirit of the Terms of Union...which

contemplated a 'liberal policy' being

pursued," and they were to consider "the

habits, wants and pursuits" of each nation,

"the amount of territory available in the

region occupied by them," and "the claims of

the white settlers."

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5)

6)

Each reserve would be held in trust for the

use and benefit of the nation concerned, to

be enlarged or diminished as population

fluctuated. Additional lands would be

allotted from Crown lands, and lands no

longer required would revert to the

Province.

Certain existing reserves would be

surrendered to the Crown. (Ex. 1203-2; s.

III, Tab 24)

British Columbia accepted this proposal and Canada

abolished the Boards formerly established, and two new

"superintendencies" (particularly Victoria and Fraser) were

created. At the same time Canada approved a new British

Columbia Land Act, enacted April 22, 1875 after Canada had

disallowed the earlier Act in March of that year. The new Act

was in most respects the same as the old Act, but it included a

provision authorizing the reserve of unalienated lands for

Indian, railway or other purposes.

The Minister of Justice, Edward Blake, had grave

reservations about the constitutionality of the new Act. He

wrote that he could not concur in the view that the Dominion's

objections had been removed entirely by the agreement to

establish an Indian Reserve Commission. He thought there were

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still:

"...serious questions as to whether the

Act...is within the competence of the

Provincial Legislature, yet since according

to the information of the undersigned the

Statute under consideration has been acted

upon, and is being acted upon largely in

British Columbia, and great inconvenience

and confusion might result from its

disallowance and considering that the

condition of the question at issue between

the two Governments is very much improved

since [November 1875], the undersigned is of

opinion that it would be the better course

to leave the Act to its operation."

But he added:

"...that this procedure neither

expressly nor impliedly waives any right of

the Government or Parliament of Canada to

insist that any of the provisions of the Act

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are beyond the competence of the Local

Legislature, and are consequently

inoperative."

(Ex. 1203-2; s. III, Tab 28)

No further steps were taken to disallow the 1875 Act.

The three Commissioners were duly appointed in the summer

of 1876 with Mr. Sproat as Chairman. In his Annual Report for

the year ending June 30, 1876, David Mills, Laird's replacement,

said:

"The question of the rights of the

Indians in all the lands in British Columbia

in which their rights have not been

extinguished by treaties between themselves

and the Crown is still unsettled." (Ex

1203; Sec. III, Tab 41, p. xvii)

This was contrary to the view of the province that the

"Indian Land Question" had been settled by the agreement to

appoint Commissioners which, the province believed, would

discharge its obligations under the Terms of Union by furnishing

whatever additional land was required for reserves.

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In September Lord Dufferin paid a visit to British Columbia

and caused quite a stir by making some public pronouncements on

the current Indian Land Question. Most of his speech was

directed to the railway question. But at the end of his remarks

he said that it had always been Imperial policy to recognize

aboriginal title in Canada and that treaties with Indians were

at that moment being negotiated by the Lieutenant Governor of

Manitoba. He referred to the post-Douglas refusal of British

Columbia governments to recognize aboriginal title as an

"error." The following passages are taken from his address

dealing with aboriginal title:

"... From my first arrival in Canada I have

been very much preoccupied with the

condition of the Indian population in this

Province. You must remember that the Indian

population are not represented in

Parliament, and consequently that the

Governor-General is bound to watch over

their welfare with special solicitude. Now,

we must all admit that the condition of the

Indian question in British Columbia is not

satisfactory. Most unfortunately, as I

think, there has been an initial error ever

since Sir James Douglas quitted office, in

the Government of British Columbia

neglecting to recognize what is known as the

aboriginal title. In Canada this has always

been done; no Government, whether provincial

or central, has failed to acknowledge that

the original title to the land existed in

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the Indian tribes and communities that

hunted or wandered over them. Before we

touch an acre we make a treaty with the

chiefs representing the lands we are dealing

with, and having agreed upon and paid the

stipulated price, often times arrived at

after a great deal of haggling and

difficulty, we enter into possession, but

not until then do we consider that we are

entitled to deal with an acre. The result

has been that in Canada our Indians are

contented, well affected to the white man,

and amenable to the Laws and Government. At

this very moment the Lieutenant-Governor of

Manitoba has gone on a distant expedition in

order to make a treaty with the tribes to

the northward of the Saskatchewan. Last

year he made two treaties with the Sioux and

Crows; next year it has been arranged that

he should make a treaty with the Blackfeet,

and when this has been done the British

Crown will have acquired a title to every

acre that lies between Lake Superior and the

top of the Rocky Mountains. But in British

Columbia, except in a few cases where, under

the jurisdiction of the Hudson Bay Company

or under the auspices of Sir James Douglas,

a similar practice has been adopted, the

British Columbia Government has always

assumed that the fee simple as well as the

sovereignty resided in the Queen. Acting

upon this principle they have granted

extensive grazing leases and otherwise so

dealt with various sections of the country

as greatly to restrict or interfere with the

prescriptive rights of the Queen's Indian

subjects. As a consequence there has come to

exist a very unsatisfactory feeling amongst

the Indian population. Intimations of this

reached me at Ottawa two or three years ago,

and since I have come into the Province my

misgivings on the subject have been

confirmed. Now, I confess I consider that

our Indian fellow-subjects are entitled to

exactly the same civil rights under the law

Part 13.

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as are possessed by the white population,

and that if an Indian can prove a

prescriptive right of way to a fishing

station, or a right of way of any other

kind, that right should no more be ignored

than if it was the case of a white man. I am

well aware that among the coast Indians the

land question does not present the same

characteristics as in other parts of Canada,

or as it does in the grass countries of the

interior of the Province, but I have also

been able to understand that in these latter

districts it may be even more necessary to

deal justly and liberally with the Indian in

regard to his land rights even than on the

prairies of the North-West. ..." (Ex. 1203-

4; s. 8, p. xxvi)

The province takes great exception to these remarks,

alleging that the Governor-General was misinformed about a

number of matters upon which he spoke, and that he was exceeding

his authority since he acknowledged in his speech that he:

"...had not come on a diplomatic mission, or

as a messenger, or charged with any

announcement, either from the Imperial or

from the Dominion Government...nor should it

be imagined I have come either to persuade

or coax you into any line of action which

you many not consider conductive to your own

interests..." (Ex. 1203-2; s. III, Tab 38,

p. 409)

Later, Prime Minister MacKenzie confirmed:

Part 13.

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423

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"...it was quite understood that he should

not and could not, have any mission from the

Dominion govt. of any ambassadorial function

even as an Imperial Officer which might

conflict with his Vice Regal duties here,

and that his visit therefore was strictly a

progress as Governor."

Nevertheless, the Governor-General's remarks probably

expressed the view of at least some of the officials of the

Dominion Government and there is a private minute dated November

2, 1877 in which Lord Carnarvon described His Excellency's

speech as admirable "...in temper, taste, language and deserves

every praise," but neither Lord Carnarvon nor any colonial

official ever responded publicly or officially.

On September 26, 1876 Mr. Sproat wrote a long report to the

Minister of the Interior. In his covering letter, dated 30

September, 1876, he noted that the first part of his Memorandum

concerned "the question of the full Indian title to the Country

[sic] and the supposed necessity of extinguishing such full

title," a question that the Governor General had referred to

"several times...in conversation and also publicly."

Part 13.

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424

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Sproat told the Minister of the Interior that the question

should not have been raised in British Columbia, because there

was little hope that "the Canadian Parliament" would vote the

"enormous sum of money" which would be required for treaties,

and because it raised the difficulty that the Indians, who were

now aware of "the new principle," would ask the Reserve

Commissioners about it as they went around the Province. Sproat

asked for instructions in the matter. It was, he wrote:

"...therefore necessary that the

Commissioners should know what the Dominion

really require, looking to these facts and

to the non-existence of any treaty Indians

at all in British Columbia at present. If

the Indians ask about this new principle

what are the Commissioners to do?"

(Ex. 1203-2; s. III, Tab 35, P. 14-16)

In his report Sproat described the "Indian Problem" as

"almost insoluble," and he suggested that it might be necessary

to "...persevere, if need be, through a succession of failures."

He posed this question:

"The practical question now is, does Canada

propose to apply this principle of the full

Indian title, in the land, to the Indians of

British Columbia. If so, it is necessary

that the Reserve Commissioners be instructed

Part 13.

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425

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immediately to make treaties for the cession

of the lands and as to what is to be given

to the Indians for them..."

At the beginning of his Memorandum, Sproat adverted to the

Governor-General's view "that Canada should not touch an acre of

the soil of any acquired Territory, peopled, however scantily,

by Indians, without having previously extinguished the Indian

Title in a formal and satisfactory manner..." Sproat added that

he would:

"...carefully refrain from expressing any

opinion as to this policy, for my mind is

open on the subject, but I rather think this

policy considerably differs from the policy

of the Imperial Government with respect to

the presumed title of the Indians of British

North America to the whole of the soil of

the Country which they inhabit."

As for what might be recognized by law, he observed:

"...The law of nations and also, I imagine,

the common law of England (in English

colonies where it operates) would, if they

could sue, be sufficient to secure to the

Indians their cultivated fields, their

constructed habitations, the amenities of

their dwellings, also whatever they had

annexed to themselves by personal labour."

(Mr. Goldie says Indians did have the

capacity to sue in 1876: S.C. 1876, c. 18,

Part 13.

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426

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s. 67).

Commenting upon some of the same legislation and documents

which are in evidence in the case at bar, Sproat observed that

the Colonies of Vancouver Island and British Columbia had been

created

"...without a word being said about

any Indian title to the soil,"

Sproat noted in particular:

"...that Sir E.B. Lytton did not recognise

any Indian title to the soil in his acts and

speeches connected with the establishment of

the Colony. Nor does it appear that Lord

Carnarvon, his then under Secretary, did so

in any of the Despatches which he wrote at

that time, nor has an Indian title to the

soil been admitted by any of Sir E B

Lytton's successors, except of course their

rights as English subjects above mentioned,

which I presume the Indians might claim

under the English Common law in British

Columbia whether the English Crown

recognised them or not."

Moreover, he observed:

"...the British Parlt., in sanctioning

the Union of British Columbia with Canada in

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The Authorities, And Some Comments

427

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1871, did not declare that there was any

full Indian title to be extinguished, and

Canada herself, at that time, appears to

have omitted to do so, tho' expressly

agreeing, in the terms of Union, that the

land should belong to the Province.

Moreover, Canada stipulated for the grant of

a large tract of land in British Columbia

for railway purposes, but did not mention

that there was any Indian title to such

tract to be extinguished by the Crown, or by

the Province. If I am right in my

recollection of these several matters, it

follows that England does not appear to have

recognised any particular title, on the part

of the Indians to the soil of the Western

portion of the Continent, other than the

right which subjects of the Crown may

generally possess....The regions above

described were dealt with by the Crown

without any reference to the Indians..."

Sproat also said:

Part 13.

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428

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"...that the Governments of England and

of Canada differ considerably in their views

of this question of the full title of the

Indians to the soil, so far at least as the

central and western portions of the North

American continent are concerned...

The Indian policy of the Governments of

British Columbia [sic] with respect to the

Indian title to lands, has naturally been

the same as the Home Government - the

country having been mainly governed from

England until 1871 when the Colony joined

Canada."

Sproat concluded the Indians':

"... legal rights of occupancy and

possession of particular portions [sic] have

been fully admitted, as also their equitable

claim to an ample sufficiency of land for

reasonable subsistence and progress."

The Dominion never issued instructions to the Indian

Reserve Commissioners to enter into treaties, despite concerns

expressed by the Minister of Finance that title to Pacific

railway lands in British Columbia would be burdened by

unextinguished "Indian title."

It appears from the Annual Report of the Department of the

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429

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Interior for the year ending June 1877 that the Reserve

Commission busied itself in 1866 and 1867 allotting reserves

throughout the province, though there was some unrest in the

interior awaiting the arrival of the Commissioners.

In July, 1877 Lord Dufferin was obviously apprehensive. He

sent a private communique to Carnarvon:

"I am sorry to say we have had rather

uncomfortable news about the British

Columbia Indians.

As I have often had occasion to mention to

you in my public and private correspondence,

the B.C. Government has never dealt properly

with its Indians. Instead of following the

example of Canada, and buying up the

aboriginal title, the whites in British

Columbia have simply claimed the land as

their own, and though they have made certain

Indian reservations in various places a

great deal of injustice has been perpetrated

both in regard to their allotment, and the

subsequent resumption of portions of them.

Unfortunately, the Dominion Government have

no legal power of interference, but by dint

of a considerable amount of moral pressure

exercised privately by myself, and 'semi'-

officially by Mackenzie, we got them to

agree to the appointment of joint

commissioners who were to settle all

disputes upon equitable terms.

These gentlemen entered upon the discharge

of their duties this spring, but of course,

it is a long and tedious business, and

though I understand they have dealt

satisfactorily with some of the Indian

bands, there are many others whose

Part 13.

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430

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complaints they have not yet had an

opportunity of examining. In the meantime

the Yankee Indians in Idaho and to the south

of our line, have risen into open rebellion,

and have begun murdering and ravaging and

the British Columbia Govt. have written to

inform us that our own Indians are

endeavouring to confederate with them.

Consequently the isolated white population

in the neighbourhood of Kamloops &c, and to

the eastwards, is in considerable danger,

and they suggest that we should send a

hundred of our mounted police from the North

West into British Columbia for their

protection. This however it is impossible to

do. In the first place our North West Police

have more than they can manage where they

are, what with Sitting Bull and his 8000

associates, and in the next we are going to

make a most important Treaty with the

Blackfeet in the Autumn, and it is necessary

that our police should be in the

neighbourhood where our red friends are

about to congregate. Altogether the

situation is very unpleasant, so far as our

scanty information enables us to judge of

it. Mackenzie moreover seems inclined to

wash his hands of the whole affair,

intimating that the B.C. Government have

only themselves to thank for what is likely

to happen. ...

All this is very uncomfortable, but I do not

see that I can do anything more than I have

done. I am sure I spoke out strongly enough

to the B.C.'s themselves, when I was there

last year, warning them publicly in my

speech of what the consequences would be if

they did not deal more justly by the native

population." (Ex. 1203-3; s. III, Tab 44)

Concern was also present in Ottawa, for on August 2, 1877

the Minister of the Interior (Mills) sent a telegram to the

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The Authorities, And Some Comments

431

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Indian Superintendent in Victoria:

"Indian rights to soil in British Columbia

have never been extinguished. Should any

difficulty occur steps will be taken to

maintain the Indian claims to all the

country where rights have not been

extinguished by Treaty. Don't desire to

raise the question at present, but Local

Government must instruct Commissioners to

make reserves so large as to completely

satisfy Indians. Present condition

necessary consequence of British Columbian

policy. Write you today. Send Governor

Richards copy of this telegram." (Ex. 1203-

3; S. III, Tab 45)

In his letter to Superintendent Powell of the same date (as

evidenced by a draft), the Minister wrote that his telegram had

indicated:

"...the line which I believed the Government

of Canada would feel themselves obliged to

take if the Land Commissioners do not deal

with the Indians of British Columbia in the

most liberal spirit, completely satisfying

them as to the extent of land set apart as

reserves."

He then made several comments as follows:

" In reading over some of the

communications which you formerly sent to

this Department, I observe that a policy has

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been pursued towards the Indian population

of British Columbia wholly at variance with

the course that it has been thought

necessary to pursue towards the aboriginal

inhabitants in every other part of the

Dominion....

Should anything so disastrous as an

Indian war overtake the Province of British

Columbia, I do not believe that the

Provincial authorities would be permitted to

deal with any portion of the lands claimed

by the Indians until the Indian title had

been first extinguished by making them

reasonable compensation....

I do not know whether the Government of

Canada were fully aware of the condition of

things at the time British Columbia was

admitted into the Union whether they were

aware that the Government of British

Columbia had undertaken to deal with the

public lands of that Province without first

having extinguished the Indian title. But,

however this may be, there can be no doubt

whatever that no arrangement between the

Govt. of Canada and the Govt. of British

Columbia could take away the rights which

the Crown has always recognized as belonging

to the Indian natives.

So far as I know, in no colony that the

Government of Great Britain has established

upon this Continent, with the single

exception of British Columbia, has it been

undertaken to dispose of the public domain

without first having treated with the

Indians for its possession. In the various

colonies of New England, in Virginia, in New

York, and in all the Southern Colonies, as

well as those (with the exception named)

which now form the Dominion of Canada, the

proprietary rights of the Indians in the

soil have invariably been respected.

Part 13.

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The Government have no desire to raise

this question if it can be avoided; and, in

my opinion, if the Government of British

Columbia will instruct their Commissioner to

deal with the Indians in the same liberal

spirit that the Indians on the East side of

the Rocky Mountains have been dealt with by

the Government of Canada, there will be no

necessity for raising it....

The Government of British Columbia have

retained possession of the waste lands of

the Crown within the limits of the Province,

but they have never extinguished the Indian

title, nor have they made any provision for

annuities to the Indian population. I have

no doubt whatever, that as guardians of the

aboriginal inhabitants of the Dominion the

Government of Canada have the right to

insist upon the extinguishment of their

title before the Provincial Govt. assume

absolute control of these lands; and if it

becomes necessary, in order to prevent an

Indian war, to assert this right on behalf

of the Indians, there can be no doubt as to

the course which it will be the duty of the

Federal Government to pursue." (Ex 1203-3;

s. III, Tab 46)

Part 13.

The Authorities, And Some Comments

434

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Finally, the Minister told Powell that he had not discussed

the matter with his colleagues "with a view to entering into any

discussion with the Local Govt. as to the Indian title to the

Crown Domain in British Columbia," that he hoped it would not be

necessary to do so, and that, moreover, he wanted Powell to

ascertain British Columbia's views informally.

The Minister sent similar views to the Commissioners who

had just settled with the "Shuswaps" and were then dealing with

the "Okanagans." These Commissioners sent copies to the

Lieutenant-Governor advising that the Indians had not raised the

question of "title to the soil." Sproat commented:

"...as the question [of title] was not

mentioned in our instructions from either

Government, and I do not consider the above

letter of the Minister as an Amended

Instruction, but as an intimation of his

opinion on a matter of great magnitude and

importance in case events should bring it to

the front." (Ex. 1203-3; s. III, Tab 51)

The Provincial Secretary replied to Sproat expressing the

Government's wish that the Indians should be treated "justly but

generously" and then added:

Part 13.

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435

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"It is the most earnest wish of the

Provincial Government that the Indians of

British Columbia should be dealt with not

only justly, but generously. The

instructions issued to Mr. McKinlay, the

Provincial Commissioner, conclusively prove

that fact, - but at the same time justice

requires that the interests of the old

settlers of the Province should not be

sacrificed.

The Hon. Minister of the Interior

gratuitously assumes throughout his letter

that the Indian population of British

Columbia has been treated, not only

ungenerously, but, unjustly. The history of

the Province however tells a very different

tale, and it is undoubtedly the case that in

no portion of Her Majesty's dominions has

the native race benefitted so much by

contact with the whites as in this Province:

it may be added that the Indians in the

neighbourhood of white settlements are

better off, and receive higher wages when

they work, than the ordinary European

labourer.

Before Confederation a discontented Indian

could hardly be found in British Columbia,

and the Indian title question, as you are

aware, had no existence until raised during

the past year by His Excellency the Governor

General.

It would be easy for the Province to

charge the present discontent among the

Indians to the policy of the Dominion

Government, or at least to the manner in

which that policy is put in operation, for

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it is an incontrovertible fact that the

discontent and dissatisfaction have

originated since the Dominion Government

took charge of Indian Affairs in this

Province." (Ex. 1203-3; s. III, Tab 54)

There were further communications, including one where

Superintendent Powell reported that the province would prefer to

convey all its public lands to the Dominion rather than to face

the expense of following the policy advocated by it. Finally,

at the end of 1877, Mr. Mills proposed that Sproat be appointed

sole Commissioner, and this was done. He was eventually

succeeded in that role by O'Reilly and then by Vowell.

In its report to the end of June 1877, the Department

reported that "all causes of apprehension which existed in the

early portion of the summer have now entirely disappeared, at

least among those tribes whose land grievances have been

considered and settled."

I pause to comment on the dialogue I have just recounted

about "Indian title." Near the end of the colonial period, Mr.

Trutch in his 1870 response to Mr. Seabright-Green's letter

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expressly denied aboriginal title. I cannot say if this was

because he believed it was not a part of English colonial law,

as Sproat later questioned, or whether he believed it had been

extinguished by colonial legislation. It is possible he was

just being stubborn, but that would not make him right or wrong.

It is one of the remarkable historical facts that the

question was not resolve in all of the Confederation documents,

and only s. 109 of the British North America Act, 1867, can be

construed to touch on it, and then almost invisibly.

After that, the position of the province was consistently

that there was no "Indian title," and confined itself to

discussions about the size of reserves.

The Dominion and the Governor-General, on the other hand,

with their experience confined to Royal Proclamation country,

probably and understandably assumed that the British Columbia

history was the same as Ontario, and accordingly pressed for

treaties which for good reason is what had always been done

there starting in the late 1700's and pursued more vigorously in

the Robinson era commencing around 1850. I find it easily

understandable that the Dominion officials, with their

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experience, would naturally assume that the Ontario regime

should be imposed upon the Canadian west.

The authorities make it clear that aboriginal land claims

must be considered in their historical context. I conclude it

would not be safe to assume that confident statements made by

Dominion officials about "Indian title" should always be

accepted as correct statements of law.

Similarly, Mr. Trutch's denial cannot be so construed.

These gentlemen were defending positions to which they were

committed. I find their statements helpful because they create

the historical context, but none of them are binding

pronouncements.

Chronologically, I wish to mention the arrangements for the

construction of the trans-continental railway which was

commenced during Sir John A. Macdonald's second administration

from 1878 to 1891. This has already been mentioned, and I do

not propose to discuss it further.

Continuing the narrative during this historical period, I

turn to activities in the territory. As mentioned earlier,

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439

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trade goods began to flow into the territory from both the east

and the west perhaps as early as 1800 but probably later than

that. Trader Brown of the Hudson's Bay Company established Fort

Kilmaurs on Babine Lake, outside the territory in 1822, and he

actually made one or more visits towards the forks of the Skeena

and Babine, but no further; Peter Skene Ogden travelled overland

from the Company's establishments in the east to Moricetown in

1836; the Collins Overland Telegraph Company reached Fort Stager

just north of Kispiox in 1866; the Hudson's Bay Company opened a

post, briefly, at what is now Old Hazelton at the forks of the

Skeena and Bulkley Rivers in 1866; and there was undoubtedly

some, though not much, "European" traffic, through the main

river valleys which were largely the preserve of the Indian

traders such as the legendary Legaik and his successors who more

or less controlled the middle Skeena up to at least mid-century.

All that started to change at that time, partly because of

the Omineca gold rush which provided employment for the Indians

as packers at which they had become proficient even though

horses were unknown in the territory until telegraph

construction in 1865. Also in 1871 the government in Victoria

sent surveyor Edgar Dewdney into the heart of the territory with

instructions to:

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"...post notices on all lands occupied or

claimed by the Indians in the country

through which your explorations may lead you

and take such notes of them as will enable

you to lay them down roughly on your plan."

Dewdney planned a small townsite at the forks of the Skeena

and Bulkley Rivers. There is a dispute about whether he

actually laid out a reserve for Indians, and I do not think it

matters much. He said in his report, "a portion of it I have

reserved as a townsite, the remainder as an Indian Reserve for a

tribe called Kit-en-macs." It is likely that the usual follow-

up work was not done, and records are incomplete, but a reserve

was later definitely established at more or less the same

location. In 1891 O'Reilly saw a reserve noted on the north end

of Dewdney's townsite plan, so he laid out a reserve with

specific boundaries.

O'Reilly's letter of instructions as an Indian Reserve

Commissioner, dated August 9, 1880, suggests that Dewdney may

have been acting informally in 1871. O'Reilly's instructions

were in the following terms:

"I have the honour to enclose, herein a

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copy of an Order in Council of the 19 Ulto.

appointing you to the position of Indian

Reserves Comr for the Province of British

Columbia....In allotting Reserve lands to

each Band you should be guided generally by

the spirit of the terms of Union between the

Dominion and local Governments which

contemplated a 'liberal policy' being

pursued towards the Indians. You should have

special regard to the habits, wants and

pursuits of the band, to the amount of

territory in the Country frequented by it,

as well as to the claims of the White

settlers (if any).

You should assure the Indians of the anxious

desire of the Government to deal justly and

liberally with them in the settlement of

their Reserves as well as in all other

matters; informing them also that the aim

and object of the Government is to assist

them to raise themselves in the social and

moral scales so as ultimately to enjoy all

the privileges and advantages enjoyed by

their white fellow subjects...

The Government considered of paramount

importance that in the settlement of the

land question nothing should be done to

militate against the maintenance of friendly

relations between the Government and the

Indians, you should therefore interfere as

little as possible with any tribal

arrangements being specially careful not to

disturb the Indians in the possession of any

villages, fur trading posts, settlements,

Part 13.

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clearings, burial places and fishing

stations occupied by them and to which they

may specially attached..." (Ex. 1266-3; Tab

67)

I pause to mention that this kind of liberal language is

found in many documents which I have examined. It appears that

in their paperwork, at least, the provincial officials were

seeking to observe the spirit of the Terms of Union, but there

is considerable doubt about whether such instructions were

always carried out on the ground.

In the meantime, there was considerable unrest and

agitation on the Skeena. I have already mentioned the

accidental fire at Kitsegukla in 1872 which led to threats of

reprisal by the Indians and their being summonsed to attend

before the Lieutenant-Governor, the killing of Youmans over a

misunderstanding at Hazelton in 1884, and the killing of

Kitwankool Jim, leading to the short-lived "Skeena Uprising" in

1888.

These somewhat dramatic events are probably not as

significant as what was happening in the area generally. I have

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already mentioned the missionary Duncan. He established a

Mission amongst the Tsimshian Indians of the coast at Metlakatla

in 1862. In 1864 he was given notice of a "Government Reserve"

for mission purposes of 5 miles on either side of Mission Point,

and 5 miles back from the shoreline of which the 2 acres at the

Point were to be held in trust by the government for the Church

Missionary Society.

In 1882 J.W. MacKay, a Dominion Agent appointed to live at

Metlakatla, and his Superintendent Powell arrived there to apply

the Dominion Indian Act, but they were told by Duncan that the

Indians wanted nothing to do with the government. Duncan told

Powell, according to Powell's report:

"...their [Indian's] rights were long prior

to the Indian Act - in fact to the title of

the soil, they had never been conquered, nor

had they disposed of their rights to the

land by treaty or otherwise..." (Ex. 1203-

4)

Although Superintendent Powell was aware of a dispute

between Mr. Duncan and Bishop Ridley, he was surprised by the

information that he received from Mr. Duncan. There was a

hurried exchange of written messages in which the Indians

Part 13.

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444

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confirmed Mr. Duncan's statements that the Indians claimed to

own these lands, and Powell replied that the title to all public

lands was vested in the Queen and that he would enforce the

Indian Act, etc.

During their conversation Mr. Duncan also informed Powell

that O'Reilly, the Reserve Commissioner, "...would find serious

opposition when he began work again on the Skeena." In fact,

Mr. Tomlinson, an adherent of Mr. Duncan working among the

Gitksan, had made the same suggestion to Mr. Vowell in a letter

dated February 27, 1884.

The Provincial Government directed Commissioners to inquire

into the "disturbances and breaches of the law at Metlakatla"

and their report, dated October 28, 1984 assigned four causes of

"disquietude":

1.

2.

3.

The claim of the Indians to have recognized

their title to all the land;

The severance between Mr. Duncan and the

Church Missionary Society;

The fact that the two acres at Metlakatla,

known as Mission Point, is not part of the

Tsimpsean Indian Reserve; that it is at

present in the occupation of Bishop Ridley

as temporary agent for the Church Missionary

Society, to which Society it was promised

some twenty years ago by Governor Douglas,

Part 13.

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445

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at the instance of Mr. Duncan;

4.

The Indian Council at Metlakatla. (Ex.

1203-4)

Noting that "the question of Indian lands is

constitutionally settled by the British North America Act, 1867

(an Imperial statute) and the Terms of Union between British

Columbia and Canada," the Commissioners' view was that:

"...the idea of the existence of an

Indian title and of its non-extinguishment

in British Columbia originated in remarks

made by Lord Dufferin when, as Governor-

General, he visited British Columbia in 1876

to discuss the claims of British Columbia

against the Dominion.

Those remarks, which

the Commissioners believe were wholly

foreign to the mission of the Governor-

General, have been sedulously inculcated in

the Indian mind by some of the missionaries,

who appear to have been ignorant of the

constitutional law upon the subject."

1035-80)

(Ex.

The Commissioners considered that a "great and perhaps an

original impetus to the notion of Indian title" had arisen from

the dispute between Duncan and the Church Missionary Society,

and observed that "...there were no such troubles for the

nineteen or twenty years previously to the severance..."

Part 13.

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446

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Furthermore, the Commissioners stated:

"...the Nass Indians and the Skeena

Indians have been moved to take the stand

they have regarding the lands, by reason of

the example set at Metlakatla; and while

expressing this opinion, the Commissioners

do not forget Lord Dufferin's utterances,

and the communication of them to the

Indians." (Ex 1203-4)

They recommended that the two-acre reserve at Metlakatla

should be surveyed as government land. Such a survey, they

thought, would "be recognized by the native mind as the

assertion of the right of the Queen, as represented by the

British Columbia Government, to the lands of the Province..."

In 1884 Mr. Tomlinson delivered a petition from "the Chiefs

and principal men of Kitwingach (Kitwanga) alleging:

"From time immemorial the limits of the

district in which our hunting grounds are

have been well defined. This district

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447

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extends from a rocky point, called

'Andemane' (Andimal) some two and a half or

three miles above our village on the Skeena

river to a creek called 'She guin-khaat'

[Chig-in-kaht], which empties into the

Skeena about two miles below Lorne Creek.

We claim the ground on both sides of the

river, as well as the river within these

limits; and as all our hunting, fruit

gathering and fishing operations are carried

on in this district, we can truly say we are

occupying it." (Ex. 1033-8)

In April 1885 Mr. Tomlinson wrote a long letter to Sir John

A. Macdonald suggesting there was a risk of an Indian outbreak

because of, amongst other reasons, some statements made by

O'Reilly in 1881 at the "mouths of the Nass and Skeena that the

government would not recognize an Indian or family title except

by way of reserves." The government sent Mr. Tomlinson's letter

to the province for its information. The Superintendent was in

receipt of a number of similar communications in that year 1885

which sound remarkably familiar these 105 years later. The

province has collected some of these communications in its

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The Authorities, And Some Comments

448

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argument as follows:

(1) One, dated April 27, was from Port Simpson

Indians who noted that they had previously

sent letters to the Dominion Government

about their land through Superintendent

Powell, but that they were now sending a

representative directly to Ottawa. They

wanted to know "...if the Government says we

have no land...," and if so, when and how

the government got it. (Ex. 1203-4; s. V.,

Tab 16)

(2) Another, dated May 15, was written on behalf

of the Metlakatla Indians, who also

complained that no answer had been received

to earlier letters sent through Powell, and

noted that they were sending two

representatives to Ottawa. The letter

referred to Lord Dufferin's speech in

Victoria, and asked if government considered

that they had no rights in land outside

their reserves. They had heard about

treaties elsewhere in Canada, and asked for

similar treatment: "We want the Government

to treat with us about our land."

17)

(Id. Tab

(3) A letter dated 18 May, written by William

Duncan on behalf of the Metlakatla Indians,

was concerned almost entirely with

complaints about unfair treatment by the

Church Missionary Society, Bishop Ridley,

and the Inquiry Report. The Dominion's

interference and protection was invoked in

respect of British Columbia's attempt to

survey the two-acre reserve at Mission

Point: "We have therefore concluded in

vindication of our rights to bring the

subject of our land claims before you,

trusting that the Dominion Government will

see justice done us"; and, "We are anxious

to have this question settled. We are also

Part 13.

The Authorities, And Some Comments

449

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waiting to hear if we have a sure foot-hold

on the land of our fathers, and if the law

of England and the British law and people

will sanction the recent act of the

Provincial Government or not." (Id. Tab 18)

(4) Duncan himself wrote to the Superintendent

General of Indian Affairs on June 19, noting

that 3 northwest coast Indians had been sent

as delegates to the Dominion Government to

ask for its assistance with various

complaints, including the village site at

Metlakatla. He pointed out that the Indians

had "no treaty with the Government in

reference to their lands." With respect to

lands outside the reserve, he wrote: "These

lands the Indians are willing to surrender

to the Government as other Indians in other

places have done. And they desire to be

treated with by the Government as other

Indians have been treated..." (Id. Tab 19)

(5) In a later letter to the Deputy

Superintendent General of Indian Affairs,

dated 20 July 1885, Duncan attempted to

bring into focus one of the actual questions

at issue in this case.

Describing the

Indian land question in British Columbia as

"anomalous," Duncan first addressed the

question of Indian reserves, citing:

a)

b)

c)

the 18 August 1875 Report of the Attorney

General of British Columbia concerning the

allotment of reserves;

the 19 January 1875 Memorandum of the Deputy

Minister of Justice respecting Crown lands

in the province; and

the 2 November 1874 Memorandum of the

Minister of the Interior on the subject of

the allotment of reserves. (Id. Tab 21)

Part 13.

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450

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Mr. Duncan did not refer to the Joint Indian Reserve

Commission agreement embodied in the Dominion Order in Council

of November 10, 1875 and British Columbia Order-in-Council of

January 6, 1876.

As for lands outside reserves, Duncan urged

the Dominion to contest the position taken by the Government of

British Columbia, saying that, "All the Dominion Government will

have to do in such case...is to fall back upon Constitutional

and Imperial Edicts and usages."

After citing Trutch's January

1870 Memorandum which denied that Indians in British Columbia

owned the "fee" in the lands, and Bernard's January 1875

Memorandum asserting that Indians had "some species of interest"

in the lands of British Columbia, Duncan closed by asserting:

"It must be now very evident to the Dominion

Government that the Provincial Government

will grant nothing to the Indians they are

not compelled to grant....It is to be hoped

this very vital land question involving

Indian title will be frankly met and settled

at once by the action of the Dominion or if

necessary Imperial authority, in the

interests of peace and prosperity of the

Province."

In 1886 the Dominion Government received representations

from the Aborigines Protection Society in London questioning the

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The Authorities, And Some Comments

451

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claim of the province to control all of the land in the

province. The Governor General in Council responded by

approving a Report by the Superintendent General of Indian

Affairs who stated:

"...the Government of British Columbia, both

while it was a Crown Colony and since, has

always dealt with the lands in that Province

as belonging to the Crown, the Indians being

as little disturbed as possible and allowed

to pursue their accustomed avocations. That

when British Columbia joined the Dominion

the General Government assumed the charge of

the Indians, and an arrangement was made by

which sufficient reserves should be set

aside for the native tribes. That in

accordance with this arrangement

Commissioners have been appointed and many

reserves have been laid out and sanctioned

by the Government of British Columbia. That

every disposition has been shown by both

Governments to protect the rights of the

Indians, although in some cases the central

Government felt itself bound to differ from

that of the Province, but these cases have

been or will be, the Minister has no doubt,

satisfactorily adjusted, and the Aborigines

Protection Society may rely upon it that

sufficient areas will be provided for the

use and comfort of the Indian Bands."

(Ex. 1203-4; s. V., Tab 27)

In September 1886 attempts were made to survey the reserve

at Metlakatla but the surveyors met with passive resistance from

Indians and a gunboat was dispatched to ensure that the survey

could be completed. In response to Dr. Helmcken's suggestion

Part 13.

The Authorities, And Some Comments

452

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that the difficulty be resolved by appointing Duncan the

Dominion's Agent at Metlakatla, Sir John A. Macdonald, who had

earlier insisted that the survey be completed, said that because

Duncan was:

"...resisting the law and claims the whole

country for his Indians, it is impossible to

appoint him. No one more highly appreciates

Mr. Duncan's great service to the Indians

than I, but like Oliver Cromwell and other

great men, he seems to have lost his head

and aspires to unrestricted dominion."

(Id. Tab 31)

As a consequence of the difficulties at Metlakatla the

province immediately appointed a further Inquiry Commission (the

Cornwall-Planta Commission) on which the former was appointed by

the Dominion and the latter by the province. The Attorney-

General instructed the province's representative not to discuss

the title question and sent a copy of his instructions to

Cornwall.

Complaints continued on a regular basis, and the Dominion

government seems to have resigned itself to the provincial

position. For example, in February 1887 the Prime Minister

wrote to a Toronto clergyman:

Part 13.

The Authorities, And Some Comments

453

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"The position of the Indians in that

Province is in a very unsatisfactory state.

The British Government, when B.C. was a

Crown Colony, treated the Indians with

liberality, but did so merely as a matter of

grace. The Indian title to the soil had

never been admitted there, and before and

since the union with Canada Reserves were

laid out by the Government there for various

tribes or Bands of Indians according to the

Government's discretion. I believe that on

the whole these Reserves were granted on a

liberal scale, more in fact than the Indians

could use or occupy, though I am personally

cognizant of instances to the contrary. By

the Land Laws of the Province all the lands

undisposed of to private individuals belong

to the Crown - that is to the Provincial

Government - and their legislation has given

certain rights to Whites in the way of pre-

emption, Explorers rights &c, without any

regards to whether the lands were occupied

by Indians or not. It was in order to

prevent an unscrupulous horde of American

miners pouring into British Columbia and

taking possession of the Mining districts

with a strong hand and with the connivance

if not the assent of the Provincial

Government, that the Indian Dept. has

endeavoured to secure sufficient tracts of

country for the Indians before they are

squatted on by Whites. The setting aside of

a reserve if it be of a sufficient area is

the only protection the Indians have. By

the arrangements with the Province at the

time of the Union, which arrangement has the

force of law, sufficient reserves were to be

set aside by agreement between the two

Governments, and after the surveys were

confirmed, the land laws of British Columbia

would cease to have effect and no settler

could gain any claim or right under them.

In several cases where White men had

acquired rights before the establishment of

a reserve the Government had either to buy

Part 13.

The Authorities, And Some Comments

454

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them out or leave them in possession to the

great injury of the Indians who are apt to

be corrupted by these interlopers.

Hitherto there has been comparatively

little trouble with respect to Indian

Reserves except at Mettakahtta....The

Provincial Courts will doubtless maintain

the legality of the land laws and the letter

obtained under them, and I am satisfied

their judgment will be upheld on appeal, so

that Mr. Duncan has done great disservice to

the people he wishes to protect by his

resistance to the law. The whole subject is

one of great importance and must be dealt

with very carefully. Unfortunately the

administration of law, civil and criminal,

rests with the Provincial Government, and as

the Indians are under the guardianship of

the Dominion Government the former slights

its duties and endeavour to throw the burden

of the management of the Indians on us here

and cares only to sell as much land to the

Whites as possible, without any real regard

to the injustice which may thereby be done

to the Indians. Before Spring opens this

subject must be dealt with, and the only

solution which is apparent just now is the

acceptance by the Indian Bands of sufficient

Reserves to which they will then have an

inalienable title, in the same way for

instance as the Six Nation Indians have in

Ontario."

(Ex. 1203-5; s. V., Tab 36)

Again, it seems to me, the issues of law arising in

this case cannot be decided by the opinions of the Prime

Minister, or anyone else. Nor can it be assumed that, because

the two governments reached agreement on eight other questions,

Part 13.

The Authorities, And Some Comments

455

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that the underlying question of "Indian title" was not still

outstanding.

On July 8, 1887 a Dominion Order-in-Council referred to

several important questions remaining unsettled and invited

British Columbia to send a representative "clothed with full

powers to settle all such outstanding questions." The specified

"questions" were:

1) the allotment of reserves where Crown

land had all been taken up by settlers, such

as at Soda Creek, Douglas Portage and the

Old Caribou Road;

2) the right of Indians to natural water for

irrigation on their reserves;

3) the sale by the province of lands which

had been allotted to Indians;

4) the title of the Dominion to reserves

allotted by the Commission;

5) the use of provincial constables and

goals for those convicted under the Indian

Act;

6) the disposition of fines collected for

infractions of the same Act;

7) the construction of lockups in isolated

locations; and

8) the payment of expenses for preserving

the peace on reserves. (Ex. 1203-5; s. V.,

Tab 40)

Part 13.

The Authorities, And Some Comments

456

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The province argues significance in the fact that Indian

title was not one of the questions mentioned. The province

appointed John Robson, its provincial Secretary, to settle these

questions. Agreement on most of them was reached.

The Cornwall-Planta Commission reported its findings on

November 30, 1887 by which time Duncan had removed himself and

some members of his congregation to Alaska. The Commission

found that the title question was of interest only to some

Indians, and suggested that such interest depended upon exposure

to certain religious persons. They reported that such claims

"...require attention by Government, and the sooner the better."

Mr. Cornwall, the Dominion's Commissioner sent a copy of

the Report to the Superintendent General of Indian Affairs, and

expressed his confidential opinions in an accompanying letter.

After reciting the events which led to the split between the

Church Missionary Society and Duncan, Cornwall wrote:

"...ever since the dismissal of Duncan by

the C.M.S. - (Church Missionary Society)

there has been neither rest or peace, but

that on the other hand the Indians following

Part 13.

The Authorities, And Some Comments

457

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Duncan...became imbued with ideas which

before were unknown to them....And the whole

affair is disastrous in its consequences.

It has unsettled Indian's minds throughout

the whole of the N.W. of British Columbia.

It has led to any amount of so called

religious animosity and strife even between

members of the same tribe. The idea first

started at Metlakatla during the contest

between the Bishop and Duncan that the title

to all Provincial lands was vested in the

Indians has spread to an alarming extent,

and is now really the basis upon which the

natives found their complaints and demands.

That is to say the disaffected ones, and

they are numerous, do so; but it is

encouraging to note that such is not the

case with all..."

(Ex. 1203-4; s. V., Tab 32)

Cornwall went on to suggest that claims to aboriginal title

seemed to depend upon which religious group influenced the

Indians. He mentioned, in particular, Robert Tomlinson, who was

"about to establish himself on the Skeena River," and "...who

is a great mischief maker and who under the guise of religion

has done much to foment the difficulties and disaffections which

have sprung up."

On the question of Indian title, Cornwall wrote:

"...It has long been determined that

Government cannot in any way allow this.

There is no ground for the assertion that

Part 13.

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the fee of the lands ever rested in the

natives. Although in many parts of the old

Province of Canada the Indian title was, as

it is called, extinguished by the farce of

purchasing the same for infinitesimally

small sums, and a like course has been

pursued in the North West Territories, yet

it has not by any means been done all over

those provinces, and where it has been done

it was only, I conceive, because it was

deemed politic and expedient to do so. No

doubt it would have been politic and

expedient so to do in the Province years

ago, but it was not done, and now, one would

say, it is impossible to do it. The mere

idea of the necessity of such a course

invalidates at once every title to real

property in the country, although these

titles have been granted by the Crown..."

As to the nature of the Indian interest in lands, he

observed:

Part 13.

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"The Indian in his wild state has no

idea of property in or title to land. He

only knows his right to live on it in common

with others. He has and makes only a very

partial use of it. He has no definite

boundaries within which he claims. His

ideas with reference to it are of the most

vague description. He believes in his right

to his own house and improvements of

whatever kind and personal property

generally but beyond that the beasts of the

field have as much ownership in the land as

he has. The present method of dealing with

the Indians in this respect is as proper and

fair a one as can be devised. Give them

their proper reservations, their village

sites - the lands which they can utilize now

and in time to come - their fishing stations

- their parcels of ground commanding wild

hunting ranges - but as far as the land is

concerned it is impossible to go beyond

this. Let them so understand..."

Part 13.

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In Cornwall's view:

"...the Dominion and Provincial Governments

should confer together on this matter,

considering it really of the utmost

importance, and, in their wisdom, determine

on some course which shall have the effect

of allaying the discontent and

misconceptions on the part of the Indians

above alluded to.

Most of the other

matters brought before the commissioners

were of a more local nature, having

reference to size of reserves &c: and will

fall more within the competence of the local

government and the Indian reserve

Commissioner."

I pause to mention that Mr. Cornwall would be severely

criticized today for his comparison with the "beasts in the

field" which is so clearly unacceptable by today's standards,

but I am persuaded that he was completely correct in describing

the historical "farce" of buying peace for "infinitesimally

small sums," which was common in other parts of the country.

Part 13.

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I mention these matters about Mr. Duncan and the

difficulties at Metlakatla not to raise an ad hominum argument,

for it does not matter how Mr. Duncan or those with whom he

interacted chose to characterize aboriginal interests, but

merely to provide a chronological framework for this historical

review.

During the year 1887 J.S. Helmcken, one of British

Columbia's three Confederation delegates wrote 2 discourses

about events in the early days of the colony which put an

interesting light on some of the early events, particularly that

Douglas got assent for 6 of his early "treaties" in one

"compulsive-impulsive" session with a group of chiefs; that the

Governor had nothing to do with these treaties; and he described

the early policy of the colony in the following terms:

"It was the 'policy' of the Govt. of

Vancouver Island not to remove any tribe or

family from their village sites - but to

make reserves of land immediately around and

including their habitations. The Indians

to-day occupy the same sites as they did

when I first arrived in 1850. None have

ever been removed and so by the same token

have never been removed to 'reserves', using

this term in the Canadian or American sense.

It was never intended that the Indians

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should be a separated community. It was

hoped that by living in the proximity of the

whites and under the same law, they would

learn from their civilized neighbours how to

work[,] how to get work and generally to

become civilized and to a considerable

extent this happened.

It must therefore be evident that the

Indian policy of Vancouver Island differed

altogether from that of Canada. In fact it

was knowingly framed seeing the great

disadvantages of that system. There was no

intention whatever of subsidizing these

Indians and making them paupers and

mendicants. The object was to make them

earn their living..." (Ex. 1203-5; s. V.,

Tab 33)

In the Report of the Dominion Department of Indian Affairs

for the year 1887 it was stated with respect to the negotiation

of "certain questions" with the Provincial Secretary:

"Several unsettled matters affecting the

Indians of this Province which required the

co-operation of the Governments of the

Dominion and of the Province to bring them

to a satisfactory conclusion formed subjects

for consideration and adjustment last

autumn, the Government of British Columbia

having, at the suggestion of the Dominion

Government, dispatched a delegate to Ottawa

to confer in respect to all such matters.

The Honourable John Robson, the Provincial

Secretary, was appointed delegate for the

above purpose and he came vested with the

necessary authority to act for his

Government in arranging a final settlement

of all questions at issue, and this was

effected in a manner satisfactory to both

Governments. It may, therefore, be stated

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that there are now no outstanding questions

which have not either been settled or which

are not in course of settlement on a basis

agreed to by the Dominion and the Provincial

Governments."

(Ex. 1203-5; s. V., Tab 48)

Nevertheless communications of complaints continued to be

received both by the province and the Dominion. In August 1887

Commissioner O'Reilly of the Indian Reserve Commission went to

the north-west coast and met with Indians at various locations

including the Nass fishery at Stoney Point, Kit wil luc shilt,

Iayennis (now, probably, Ainainish), Metlakatla, Fort Simpson,

and other locations. His notes (Ex. 1203-6) make fascinating

reading, particularly his repeated request to the Indians to let

him know what lands they wished; but generally the story was the

same. The Indians claimed either huge reserves and payment for

all lands outside their reserves, or just the former, and

declined to participate in the process if they did not receive a

favourable response. Mr. O'Reilly repeatedly urged the Indians

to tell him what they required in the way of land, forestry

resources and fishing stations, but often to no avail.

As is so often the case, however, the two cultures do not

always communicate well with each other. This is demonstrated

by the fact that the Indians had asked for a commitment from the

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government about the Indian title question in the Cornwall -

Planta proceedings. In a letter to Mr. Powell dated August 17,

1888, Mr. Planta described this as follows, saying that he:

"...emphatically and definitely refused to

entertain the Indian claims to ownership of

the whole country, and in this the

honourable Mr. Cornwall on behalf of the

dominion Government fully concurred and so

expressed himself to the Indians so that on

that question, or grievance the Indians have

received an unmistakeable [sic] answer from

both governments but certain Indians

demurred to it and reiterated their claims

of 'Indian title,' and these are probably

awaiting a further and what they may regard

as a more direct answer from the

Government."

(Ex. 1203-6; s. V., Tab 53)

Mr. O'Reilly found Mr. Planta's comments to be true, for

several Indians told him they did not wish to say or do anything

until they heard from the government, even though Mr. O'Reilly

told them he was giving them the government's answer. In

addition, of course, there is always a wide gulf of

misunderstanding in these matters, and it is not possible, just

from reading Mr. O'Reilly's notes, to know precisely how each of

them were being understood, or misunderstood, by the other.

The Dominion did ultimately make a written response to the

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Indians, under date of October 23, 1888, which was simply that

the Dominion,

"...did not propose to recede from the agreement

entered into with the Govt. of British Columbia [at

Confederation], in accordance with which agreement

suitable Reserves were to be allotted to [the various

bands], and the residue of the public lands was to be

handed over to the Provincial Govt to be disposed of

in such manner as by that Govt might be considered

proper." (Ex. 1203-6; s. V., Tab 55)

In July 1889 the Dominion, at the request of the province

(which had received such a request from the Indians), appointed

an Agent to reside at Hazelton on what was called the Upper

Skeena. The first incumbent was R. E. Loring who was then in

the service of the province in the area. He seems to have been

nominated for this position either by the Indians or by Mrs.

Hankin, the widow of the first merchant at Hazelton whom Mr.

Loring later married. She, being either an Indian woman or at

least fluent in their language, acted as his translator. His

many reports present a useful account of the Indians of the

territory during his service there which continued until about

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1920. In many cases, his reports present a far more realistic

picture of what was happening on the ground than the careful

language of government reports and diplomatic exchanges.

Loring's 1889 reports describe a society in transit from

what he regarded as "heathen," such as eating dogs and

potlatching, and many disputes. He wrote:

"Destitution is very prevailing among

the Indians of all the villages I have

visited. In some cases actual distress, and

pitiful to see." (Ex. 1209-A4)

In the winter of 1889-90 Loring found the Indians of

Hagwilget and Kisgegas in their winter villages in the woods a

few miles from the river. He understood this site was selected

for defensive purposes following a massacre of the villagers by

the Nishga, though no date was given. He reports that he was

able to assure them that their best land was not going to be

taken away from them as they believed. To bring reality into

this account it should be mentioned that the temperature was 20

degrees below zero F. His early 1890 Reports on visits to Kuldo

detail serious shortages of food, all dried salmon stocks having

Part 13.

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been exhausted, and the populace living on their cache of

potatoes, with violent cases of diarrhoea, as well as reference

to many disputes about fishing stations with the fortunate

Indians prohibiting others from getting any salmon. It is

difficult to believe their condition would have been any better

in a completely aboriginal society, but we shall never know the

answer to that question.

Also in 1889, the Church Missionary Society enquired

further about the question of Indian title to which the Deputy

Superintendent General (a Dominion official) replied under date

of July 3, 1889, stating in part:

"In connection with the land question,

which involves the Indian title to the lands

generally in the Northern part of British

Columbia, the letter from the Missionary

Society quotes as authority for the

recognition of the Indian title the purchase

made by Sir James Douglas of tracts of land

from various tribes of Indians. Upon

reference to these purchases, which are

entered at large in the book compiled by the

Hon. Mr. Trutch containing papers in

connection with the Indian land question

from 1850 to 1875, it is found that Sir

James Douglas negotiated these purchases

with the Indians not as Governor of the

Colony but as Agent of the Hudson's Bay Co.

with a view no doubt to facilitate the

trading relations of that Company with the

aborigines of the country...

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In regard to the question of the Indian

title to the lands generally of the Province

the Commissioners' report [Cornwall-Planta]

contains the following remarks:-

'The idea of the

existence of an Indian title and

of its non-extinguishment in

British Columbia originated in the

remarks of Lord Dufferin when as

Governor General he visited

British Columbia in 1876 to

discuss the claims of British

Columbia against the Dominion.

Those remarks which the

Commissioners believe were wholly

foreign to the mission of the

Governor General, have been

sedulously inculcated in the

Indian mind by some of the

Missionaries who appear to have

been ignorant of the

constitutional law upon the

subject.'" (Ex. 1203-40; s. V-3,

p. 8-11)

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The Deputy went on to point out that ample reserves had

been established for the "Tsimpshean" Indians by Mr. O'Reilly

and that the allotment of reserves was "as practical an answer

as could have been given to the Indians...claiming additional

territory."

Some witnesses said that 1890, approximately, was the

beginning of the coastal canning industry which attracted a

great many of the Gitksan and Wet'suwet'en to the coast for

summer employment. Loring's first annual report dated 30 June

1890 shows the population and occupations by village as follows:

Kitwanga - population 140 (39

dwellings) - freighting, coastal canneries,

and trapping

Kitsegukla - population 83 (21

dwellings) - no occupations given - there is

a note that 41 younger band members moved to

New Kitsegukla

Gitanmaax (Hazelton) - Band Population

- 61

Total Population - 233 (55

dwellings) - freighting, packing, mining,

logging, coastal canneries

Kispiox - population 236 (34 dwellings)

- freighting, packing, coastal canneries

Kisgegas - population 260 (23

dwellings) - hunting and trapping

Part 13.

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Kuldo - population 33 (6 dwellings) -

hunting and trapping (Exhibit 1209-A-10)

The first representative of the Reserve Commission, A. W.

Vowell, arrived in the territory in August 1890. He found that

the Indians were expecting to have their lands taken away by the

government and he learned at Hazelton that the Indians had been

advised not to let surveyors or government officials come up the

river. He had a meeting with Chief Gyetum Galdoo, one of whose

descendants is a named plaintiff in this action. Vowell

explained how they had been misled, and he noted that this "more

than pleased them." He was able also to quieten the Kispiox

Indians and he says they promised to give Mr. O'Reilly and his

staff, who were on their way up the Skeena, a good reception and

every possible assistance in laying out their reserves.

Later that month or possibly the next year (the documents

are confusing) it rather appearing O'Reilly was in the mid-

Skeena in both years), Commissioner O'Reilly laid out reserves

at Gitenmaax (Hazelton), Hagwilget, Moricetown, Babine Lake,

Kispiox, Kitsegukla and Kitwanga, but many of the people were

absent fishing and he stayed in each location for only a brief

period. There are notes of meetings at several centres where

Part 13.

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Mr. O'Reilly explained his function, and various chiefs made

representations about particular lands which they wished to have

reserved. In an exchange at New Kitsegukla where he laid out 3

reserves, O'Reilly, on September 30, 1891, said the government:

"...have not allowed pre-empt to be taken in

the neighbourhood of villages least it

sh[oul]d interfere with the rights of the

Indians, but after the reserves are defined

this prohibition will no longer exist,

therefore I wish you to tell me where your

fisheries, timber, and village sites are. I

will include their principal fisheries, in

the immediate neighbourhood, but there is a

special Act which prohibits white men from

fishing in fresh water therefore the

fisheries are virtually all the Indians',

and it is not necessary to make a reserve of

every little place where an Indian fishes.

I hope you will not ask an unreasonable

extent of country, but only for that which

would be useful to you. It is not necessary

that the berrying or hunting grounds should

be reserved. It would be an impossibility

to define them as you go over hundreds of

miles. You will not be confined to the

reserves, but can hunt fish or gather

berries where you will as heretofore." (Ex.

887-10)

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472

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Apparently O'Reilly had difficulty at Kispiox where some

Indians wanted a reserve 35 miles in length following the course

of the river and including the mountain ranges on either side,

and I gather his work was not allowed to be continued there. He

warned them that if a white man took possession of their lands,

presumably by pre-emption, "they would have no one to blame for

it but themselves."

He also had some difficulty at Kitwanga where the claim was

repeated for 35 miles of river (for 141 people), and there were

very few Indians present but those who spoke included one who

expressed fear that they expected to be confined to reserves for

a few years and then be driven off "and the land taken by the

whites." O'Reilly gave strong assurances that such would not

occur. He defined four reserves but he did not consider that he

had finally dealt with this band and he returned in September

1893 and created 3 further reserves.

On the other hand, at least one band was expecting a

railway to be built and urged him, in 1892, to have their lands

surveyed without delay.

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In 1891 Loring reported the population of Hazelton had

increased to 237 with 62 dwellings, compared with only 7

buildings in 1871. He said Hazelton was "swelling by the

conflux of members of other bands, who through the inducements

of the facilities in finding employment, settled," and that the

entire village of Moricetown was planning to move there but he

was able to persuade them not to do so.

Also that year Loring reported:

"As far as I know, all the Bands are

satisfied in respect to the defines of their

Reserves, with the exception of that of

Kiss-pioux. There has been a report spread,

that a movement is on foot, to make the

Indians buy the land. This greatly excited

even those, who are very well satisfied on

the Reserve question. I am overwhelmed with

interrogatories on the subject. This

emanates from intermeddling. As far as I

can find out, it is the old Met-la-Kat-la

spirit propagated to the Skeena, lacking

entirely in force, yet serving as a means to

Part 13.

The Authorities, And Some Comments

474

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confuse the Indians." (Ex. 1209-A-17)

Again, I tend to doubt the accuracy of Loring's conclusion

that most Indians were "satisfied" with the reserves that had

been allocated to them, but it may be true that they did not

communicate their dissatisfaction to him, or perhaps to anyone.

Until recently they tended to keep such matters to themselves.

The Report of the Superintendent General of Indians Affairs

for 1891 reported:

"From one end of the province to the

other prosperity and contentment reigned

among the Indians during the past year.

Even on the north-west coast, where but a

few years since considerable difficulty was

experienced in managing the Indians, owing

to exaggerated ideas instilled into their

minds as to their land rights by evil

counsellors and mischief-makers, actuated no

doubt by sinister motives, the Indians

having become pacified and assured that the

Department was doing all it could for them,

tranquillity undisturbed prevailed during

the year."

(Ex. 1203-6; s. V., Tab 67)

In September 1893, O'Reilly returned to the Upper Skeena

where, at Kitwanga, "the usual extravagant demands were made",

vis. "fr. Kitsequkla to below Lorne Creek," but there were only

Part 13.

The Authorities, And Some Comments

475

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19 persons present and I doubt whether anyone was satisfied with

the process. O'Reilly's Reports make it clear, however, that he

did establish quite a few reserves, 12 for the Hagwilgets, 3 for

the "Kissequklas", 4 at Hazelton, etc.

In 1896 O'Reilly received 2 letters from Kispiox Indians

apologizing for the way he was treated and asking him to return

to enlarge their reserve. It does not appear this was done as

Mr. Loring replied that a large reserve of over 200 forested

acres plus the townsite had already been laid out, and he

recommended against a further visit.

The reserve allocation process continued at least until

1911 when the province adopted a temporary policy of not

establishing any further reserves.

Throughout the 1890's Loring's reports contain many

accounts of his efforts to settle disputes between Indians over

hunting and fishing opportunities at many locations.

As in many kinds of litigation, it is almost as if the

parties were leading evidence in different lawsuits. The

plaintiffs endeavoured to show that the social structure of the

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The Authorities, And Some Comments

476

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Indians, particularly the chiefs and the feast hall, governed

the lives of the Indians, yet there is much evidence, including

Mr. Loring's reports, which indicates otherwise. It is

impossible to conclude that the hereditary chiefs were the sole

arbiters of grievances in the face of Mr. Loring's reports which

have the advantage of being prepared long before there was any

thought of litigation.

Loring reports visiting the Gitksan fishing village of Ksun

a total of 31 times starting in 1894. It is up-river from

Kispiox, but south of Kisgegas. He reported it was the

"congregation centre" for fishing of the Gitenmaax and Kispiox

where many disputes arose requiring his attention. In 1897

Loring predicted:

"the time is not far off when Ksun will be

abandoned altogether. The Indians are

steadily improving their ways of living, in

conformity to which the present mode of

inhabiting it will prove inconsistent."

(Ex. 1209-A-77)

In 1913 Loring wrote:

"Regarding the Kit-Ksuns on the Skeena above

Kis-piox, I here must mention, that

commencing the winter before last, not a few

Part 13.

The Authorities, And Some Comments

477

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of Kuldoe and of Kis-ge-gas began

gravitating towards Kis-piox, and

indications present the semblance of their

eventually becoming habitants of the latter

village.

If such practice should continue a natural

process of concentration of those Indians

nearer to Hazelton will come about, and am

inclined to the opinion, that for obvious

reasons the result become much desirable.

The facilities of profitable employment, -

both summer and winter, - which nearer here

afford, is the factor.

The deductions are that as by degrees

those increase as expedients, hunting and

trapping as resources, will wane

correspondingly.

These conditions are approaching by bounds

and will more than all else prove the

remarkable acquisitiveness and fertility of

ready recourse with which the Kit-Ksuns are

possessed for the better."

Notwithstanding this, in 1913, he described Ksun as the

"principal fishing centre", and in 1916 as the "principal stock

of fish for the winter supply" and that "upon these fisheries

the people of several villages depend for their winter

supplies." In his last report on Ksun, however, he mentions

that the inhabitants were mostly older people, and the quality

of fish caught and cured was 80% less than in earlier times

owing to a change in diet. I do not recall Ksun being mentioned

as a village in the plaintiffs' evidence nor do I recall it

Part 13.

The Authorities, And Some Comments

478

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identified on Mr. Morrell's maps, even though he and his staff

interviewed most of the elders. This movement towards the

population corridor is consistent with the impression I have of

the emptiness of the territory.

In 1898 interest quickened in reaching a treaty with the

Indians of the North West Territories. This first arose in 1891

upon the discovery of "immense quantities of petroleum" and

other minerals but British Columbia was not included in the

contemplated area to be settled. Interest revived in 1898 when

the Indian Commissioner of the North West Territories

recommended a treaty covering the "Provisional District of

Athabasca and North Western British Columbia." To this the

Secretary of the Department of Indian Affairs noted in the

margin "Indians of B.C. already dealt with by arrangement with

BC Govt. in 1876," referring, I suppose, to the agreement to

establish a joint Indian Reserve Commission.

It was then decided that it would be impractical to exclude

the Indians of north-east British Columbia east of the Rockies,

and although the province was notified of the intentions of the

Dominion, it never formally acquiesced in the treaty although it

did not object, and Treaty No. 8 was signed in 1898. The

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The Authorities, And Some Comments

479

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"adhesion" of British Columbian Indians east of the Rockies to

the treaty was obtained from time to time, the last ones

probably being the Fort Nelson Indians in 1909. I do not find

it safe to draw any inferences from this sub-history. It was a

practical accommodation - another anomaly - and it bears little

relevance to the questions I have to consider in this case. The

land required for reserves was furnished by the Dominion out of

the Railway Block which it had received as part of the Railway

arrangements, and the province did not contribute any land.

Also, in 1898, Vowell replaced O'Reilly as reserve

commissioner. In that year Vowell established reserves at

Kuldo, Kisgegas (229 persons), and further reserves at Kispiox.

Vowell's minutes show that at Kisgegas on July 28, 1898 he said:

"...the reason that reserves are made is

that no white man can take them from you.

You are not confined to your reserves and do

not interfere with your liberty. You can

hunt and shoot everywhere." (Ex. 1040-118)

The economy of the area changed greatly with the survey for

and construction of the Grand Trunk Pacific Railway in the late

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The Authorities, And Some Comments

480

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1890's and early 1900's. Many Indians obtained employment on

these projects. Prior to the railway, the traditional seasonal

round was gradually disappearing to be displaced over time by a

cash or wage economy. This happened first among the central

Gitksan, and slightly later at more distant locations such as

Kuldo, Kisgegas, and with the Wet'suwet'en. Trapping continued

as an important, but decreasing, part of the economy of the area

until the failure of the fur market in 1950. Prices soon

recovered but few Indians are presently engaged in that vocation

although they have largely maintained their trapline ownership.

Loring started to comment in 1900 about the trend away from

the old communal longhouses to single family residences.

In 1891 or 1892 O'Reilly reported on reserves for the

Hagwilgets, as they were sometimes known, saying that as they

occupied "scattered settlements from the Hagwilget river to Fort

George, on the Frazer [sic] river, a distance of about two

hundred miles, the greater number of the reserves for these

Indians have not therefore been dealt with."

He mentioned some Hagwilget reserves:

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The Authorities, And Some Comments

481

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No. 1., Moricetown, "...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 also said, "The

most important fishery of the band is

immediately in front of the village; here

great quantities of salmon are annually

taken," and "Although there is a

considerable extent of good land on this

reservation, nothing has been done for its

improvement, or utilization, excepting only

that a few potatoes and vegetables are grown

in isolated patches."

No.2: "...about two miles from

Moricetown; and is used by the Indians as a

winter run for horses.

No. 3: "...situated on the Frazer Lake

trail, about five miles south of Moricetown,

contains 160 acres, the [larger] portion of

which is good hay land." (Ex. 1239B-93)

He went on to describe the excellent hay lands to the

south, but I conclude from his failure to allot reserves that

they were substantially unoccupied, although he added that he

expected they would some day be brought under cultivation.

I pause to mention that Cail on p. 226 reports total

reserve allotment in the province, by 1897, of 718,568 acres

Part 13.

The Authorities, And Some Comments

482

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(compared with 28,437 at Confederation) of which only 44,631

were in the Babine Agency which included more than just the

territory. This 715,568 acres exceeds the total amounts

mentioned in Walkem's 1875 Memorandum, but only 197 of these

Babine acres was said to be under cultivation.

The most significant development in the territory occurred

in the first few years of this century when the white settlers

started to take up some of the best agricultural land in the

territory, particularly in the Bulkley and Kispiox valleys.

This resulted partly, from the railway, and partly from the

issue of Boer War script which permitted returning soldiers to

pre-empt land, some of which was used or occupied by Indians. I

have no doubt some serious injustices were perpetrated upon some

Indians who were dispossessed from land they were using, often

by speculators who were permitted to take assignments of script

from soldiers for nominal amounts.

In 1905 Loring reported the southern area of the territory

was virtually empty, with no one living on Francois or Ootsa

Lake and scattered families at Cheslatta Lake, which is outside

the territory.

Part 13.

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483

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The absence of evidence of villages in the Wet'suwet'en

area is surprising. While there were at least 8 named villages

in Gitksan areas, I only recall mention of 2 named Wet'suwet'en

villages. These are Hagwilget, which is in Gitksan territory,

and Moricetown. In addition there was mention of a few

settlements such as Barratt Lake near Moricetown and other

settlements further south on the Bulkley River. There were also

villages on Babine Lake which is outside the territory.

It is apparent, however, that the Indians, while accepting

whatever benefit they found in the reserves, never ceased

claiming a much larger land interest. Some hearings were held

in July 1909 in Smithers, and a July 15, 1909 "Victoria Times"

account of some of those proceedings, read into evidence by Mr.

Galois, probably records the position of the Indians of the

territory:

"Commissioner Stewart of Ottawa who

came here accompanied by Superintendent

Vowell of Victoria, and Chief Constable

O'Connell of the Dominion force, to inquire

into the grievance of the local Indians

arising out of the settlement by white

settlers of Crown lands outside of the

Part 13.

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484

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Indian reserves, which the Indians had been

using for themselves for generations,

completed the hearing of the trouble last

night after a two day session. The

proceedings were confined to a hearing of

the Indian grievances and their demands for

redress. Each tribe was represented by a

spokesman, who presented each tribe's

troubles and demands in turn, each spokesman

practically repeated what the first one set

forth. Basing their contention on the

assumption that all the land belonged to

them to be hereditary and that whites had

taken it without conquest or remuneration

they practically asked that the whole

country be surrendered to them. This would

involve dispensing with the present system

of reserve, the establishment of their

ancient tribal laws and customs for the

government of the territory and the

forfeiture of all rights, claims and

interests of the whites, et cetera,

practically the establishing of the

Part 13.

The Authorities, And Some Comments

485

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conditions existing before the white man

came among them. While the claims were made

separately for the surrender of each tribal

chief's lands of his forefather's,

collectively it would involve the entire

country." (Ex. 1026-298)

Similar claims were advanced periodically, and there are

conflicting reports from Loring of tension and agitation

increasing and decreasing. There was a serious incident in 1909

centred upon Kispiox with a threat of an attack on Hazelton,

which led to the "Kispiox Raid" (by 50 police officers who made

8 arrests). Another incident was recorded where McDougal was

unable to conduct surveys at Andimaoul and Kitwankool in 1910 as

some of the tribes agreed "...to accept no reservations until a

decision had been arrived at as to their claim to the whole

country. They are afraid that the acceptance of a reserve would

invalidate their claim." Commissioner Green returned to the

Skeena and Kispiox valleys in 1911 and reported that the

Indians:

"...were unanimous in refusing to have

any reserves defined for them; their claim

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486

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that the whole country belongs to them and

that they would not accept anything less,

was a repetition of the argument advanced by

the Indians at Andimaul last year."

(Transcript, p. 31,443, l. 27-33)

This particular problem was sought to be resolved in 1912

by Green being authorized to give an assurance "...that whatever

outcome there may be to their claims for the whole territory

that in any case the chosen spots which are necessary for their

use should be secured to them." These are undoubtedly white

persons' words which may not have meant much to the Indians.

By 1910 Loring reported that land claim agitation had died

down but the old people had not abandoned the idea, and by 1916

he wrote that "...in general, the situation regarding the land

question has entirely subsided." I think Mr. Macaulay was

correct when he submitted that the following conclusions can be

extracted from the Loring reports:

(1) The Gitksan traditional economy was not

providing adequate subsistence for the

population of the central and western

villages by 1890.

(2) The northern villages, Kisgegas and Kuldo,

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487

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where the traditional economy was still in

place, were starting to lose their

population by 1902. The winter hunting and

fishing villages, and the outlying canyon

fisheries were abandoned.

(3) The traditional economic activities,

fishing, hunting, and trapping, were losing

their central position in the lives of the

Gitksan and Wet'suwet'en as other economic

alternatives were taken up.

(4) Disputes between families and crests over

fishing stations and trapping and hunting

grounds were frequent and continued

throughout the period of Loring's tenure as

Indian Agent.

(5) Traditional methods of dealing with

ownership and claims to ownership of fishing

stations, smokehouses, trapping and hunting

grounds, if any, were no longer employed.

(6) The Gitksan of central and western Skeena,

particularly Gitenmaax, Kispiox, Kitsegukla,

Kitwanga and later the Wet'suwet'en, started

joining the cash/wage economy in the later

years of the last century.

(7) Society in the central and western villages,

and later in Hagwilget and Moricetown, were

increasingly based on family units, housed

in single family dwellings.

Meanwhile, paper continued to fly between Ottawa and

Victoria regarding the treatment of the Indians. The Dominion

government supported the province, particularly in matters of

law and order, such as when Indians prevented surveys, and in

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connection with the Kispiox Raid, but it continued to seek a

solution to the ongoing agitation. One suggestion was to have

the Supreme Court of Canada settle the issue of Indian

ownership, but the province declined to participate in that

plan.

In response to a 1911 delegation in which the government

received a memorial signed by the "Chiefs and representatives of

nearly all the tribes throughout the province," Premier McBride

told the delegation "...the Indians had no title to the

unsurrendered lands..." and that there was no question to submit

to the Courts.

The Prime Minister and his Ministers were also under heavy

pressure from the Indians and others. In response to another

1911 delegation Sir Wilfrid Laurier said:

"...the Dominion Government is in the

position of guardian of the Indians," and,

"If the rights of the Indians are impaired

it is for the Dominion Government to look

after them and protect them."

Part 13.

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But he added:

"The matter for us to immediately

consider is whether we can bring the

Government of British Columbia into Court

with us. We think it is our duty to have

the matter enquired into. The Government of

British Columbia may be right or wrong in

their assertion that the Indians have no

claim whatever. Courts of Law are just for

that purpose, - where a man asserts a claim

and it is denied by another. But we do not

know if we can force a Government into

Court. If we can find a way I may say we

shall surely do so, because everybody will

agree it is a matter of good government to

have no one resting under a grievance. The

Indians will continue to believe they have a

grievance until it has been settled by the

Court that they have a claim, or that they

have no claim." (Ex. 1203-7; s. VIII., P.

73-74)

Part 13.

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490

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The Dominion then caused the Exchequer Court Act to be

amended even though Indians had status to bring proceedings

since 1876, and the government resolved to bring proceedings but

did not do so and matters rested there for nearly a year. Then,

in May 1912, the Dominion appointed a Special Commissioner,

J.A.J. McKenna, to investigate claims by Indians in British

Columbia and all other questions at issue between the two

governments. He undertook an extensive study of the problem and

wrote a long letter to Premier McBride dated July 29, 1912.

After defining the Indians' claims ("aboriginal title") he made

a significant concession. He said:

"As to the first claim, I understand

that you will not deviate from the position

which you have so clearly taken and

frequently defined, i.e., that the

Province's title to its land is unburdened

by any Indian title, and that your

Government will not be a party, directly or

indirectly, to a reference to the Courts of

the claim set up. You take it that the

public interest, which must be regarded as

paramount, would be injuriously affected by

such reference in that it would throw doubt

upon the validity of titles to land in the

Province. As stated at our conversations, I

agree with you as to the seriousness of now

raising the question, and, so far as the

present negotiations go, it is dropped."

(Ex. 1203-8; s. VIII., Tab 14)

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The Authorities, And Some Comments

491

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McKenna reviewed the history in a way not unfriendly to the

province, pointing out that aboriginal claims had been settled

differently in different parts of Canada, and he observed:

"The records of the Reserves Commission

prove that the policy of the Thirteenth

Article of the Terms of Union, and not that

of the Agreement of 1875-76, was followed in

allotting reserves. The wishes of the

Indians were consulted, as they had been in

the days before the Union; their village

sites and enclosed fields and their fishing

places, were, as had always been the

practice, secured to them. Their reasonable

wishes and ascertained requirements formed,

as it had thereto formed, the measure of the

further land allotted."

Ex. 1203-8; s. VIII., Tab 14, p. 30)

While it was McKenna's original view that a new Commission

was unnecessary, on September 24, 1912 he signed an Agreement

with the Premier for a 5-member Commission to "adjust the

acreage of Indian Reserves in British Columbia" (plus or minus,

or entirely new reserves), and for the ultimate conveyance of

reserves to the Dominion which had always been a difficult point

of contention between the governments.

In his Report to the Dominion on his agreement with the

Premier, McKenna pointed out:

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"There have been reserved for Indians in

British Columbia some seven hundred and

fifteen thousand acres of land. Taking the

Indian population as shown by the report of

1911, viz., 21,600, the allotments average

about thirty-three acres per capita. There

is, however, a very striking inequality of

allotment, the per capita allotment in one

Indian Agency being under two acres, in

another over one hundred and eighty four.

And the difference in acreage of allotment

is apart altogether from difference in

values of lands allotted...

The undersigned considers the agreement to

be in the best interest of the Indians of

British Columbia as well as to the public

advantage." (Ex. 1203-8; s. VIII., Tab 15,

p. 5)

One of the important terms of the Agreement was the

abandonment by the province of its claim to the reversionary

interest in reserves no longer required for Indian purposes.

Such term had been a serious impediment to all discussions with

the Indians and with the Dominion.

There can be no doubt the Agreement, which was accepted by

both governments, was directed to Term 13 of the Terms of Union,

not to the "title" question which, as Mr. McKenna said, had been

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"dropped." In fact, a subsequent Dominion Order in Council

dated June 1913 made it clear that "...the agreement...does not

contemplate an investigation and settlement of matters

appertaining to general Indian policy in British Columbia...It

is confined to matters affecting Indian lands which require

adjustment between the parties."

The limited scope of the McKenna-McBride Agreement did not

go unnoticed. In 1913 the Nishga Indians adopted a statement

asserting their intention to persist in making a claim against

the province for past alienation, and to control unalienated

portions of the province. Later that year they addressed a

Petition to the Imperial Privy Council claiming exclusive

possession, occupation, use and sovereignty over lands in the

Nass valley. They alleged that nothing in the Terms of Union or

the McKenna-McBride Agreement took away any of their rights.

The Nishga petition eventually found its way to the

Dominion Government which agonized over what to do with it, and

with the continuing problem. The Deputy Superintendent-General

Duncan Campbell Scott, who regarded the Nishga claims as

"fancies" and "exaggerated," proposed that the claim be referred

to the Exchequer Court, with a right of appeal to the Privy

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Council, on four conditions:

"1. The Indians of British Columbia shall,

by their Chiefs or representatives, in a

binding way, agree if the Court, or, on

appeal, the Privy Council decides that they

have a title to lands of the Province, to

surrender such title, receiving from the

Dominion benefits to be granted for

extinguishment of title in accordance with

past usage of the Crown in satisfying the

Indian claim to unsurrendered territories,

and to accept the finding of the Royal

Commission on Indian Affairs in British

Columbia, as approved by the Governments of

the Dominion and the Province as a full

allotment of Reserve lands to be

administered for their benefit as part of

the compensation.

2. That the Province of British Columbia by

granting the said reserves as approved shall

be held to have satisfied all claims of the

Indians against the Province.

That the

remaining considerations shall be provided

and the cost thereof borne by the Government

of the Dominion of Canada.

3. That the Government of British Columbia

shall be represented by counsel, that the

Indians shall be represented by counsel

nominated and paid by the Dominion.

4. That, in the event of the Court or the

Privy Council deciding that the Indians have

no title in the lands of the Province of

British Columbia the policy of the Dominion

towards the Indians shall be governed by

consideration of their interests and future

development." (Ex. 1203-8; s. IX., Tab 9, p.

5)

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This proposal was adopted by the Dominion Government by

Order- in-Council PC. 751 on June 20, 1914. Various

communications within government make it evident there was

concern about the cost of extinguishing all claims. Moreover,

it was realized the Nishga believed "...the disposal of the

provincial lands would be in their hands if the case were

decided in their favour by the Courts."

It is difficult to understand how the Indians could have

been expected to accept this process because it required them to

agree to litigation which, if they succeeded, would be

compromised by the reserves then being adjusted by the McKenna-

McBride Commission. Apparently they saw it that way and

rejected it in a prepared statement delivered in February 1915.

Their response is interesting because it included a counter-

proposal which shows they based their thinking very much upon

the Royal Proclamation, 1763, and upon the terms and conditions

of every treaty made by the Crown with all other Indians in

Canada. Their counter-proposal was stated in the following

terms:

"1. That when the findings of the Royal

Commission are known, each tribe that may

consider such findings insufficient shall

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have opportunity of making application for

additional lands to be reserved for the use

and benefit of the Tribe for reasons to be

stated in such application, and every such

application which cannot be dealt with by

conference between the Tribe and the two

Governments shall be decided by His

Majesty's Imperial Minister, the Secretary

of State for the Colonies, in pursuance of

the principle embodied in Article 13 of the

'Terms of Union.'

2. That in fixing compensation regard shall

be had to all the terms and provisions of

any treaty made between the Crown and any

Tribe of Indians in Canada.

3. That in fixing compensation regard shall

also be had to all restrictions and

disabilities imposed upon Indians by

Provincial Laws and those imposed by

Canadian regulations relating to the

fisheries.

4. That all remaining matters, including an

equitable method of fixing compensation,

shall be adjusted by enactment of the

Parliament of Canada." (Ex. 1203-8; s. XV.,

p.23)

The usual discussions ensued between the Indians and the

Dominion Government without any progress being made, and after

receiving a joint memorandum from the Minister of Justice and

the Superintendent-General which began by noting that "ample

opportunity for discussions had been afforded," and that the

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question was "thoroughly debated," the Government rejected the

Indians' counter-proposal and resolved:

"...after due and careful

consideration, that the terms of the order

in Council of 20th June, 1914 [PC 751] be

not modified or altered." (Ex. 1208-8)

But the Indians were advised that the proposals of P.C. 751

"remained open."

It is apparent from the documents that P.C. 751 remained

the policy of the Dominion at least until 1927, although efforts

were made to negotiate fresh arrangements without success. In

most of the proceedings of the McKenna-McBride Commission the

Indians attempted to raise the question of Indian title, but the

Commissioners were instructed not to discuss it. Instead they

often gave assurances that participation in the reserve process

would not prejudice such claims which would, they said,

ultimately be resolved in Court. Notwithstanding such

assurances, many Indian tribes, including some in the territory

and the Kitwankool Indians, participated indifferently, if at

all, in the adjustment process.

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The Report of the McKenna-McBride Commission adjusting the

reserves throughout the province was accepted by both the

provincial and Dominion governments in almost identical

statutory language. The provincial enactment, S.B.C. 1919, c.

32 provided:

"1. This Act may be cited as the 'Indian

Affairs Settlement Act.'

2. To the full extent to which the

Lieutenant-Governor in Council may consider

it reasonable and expedient, the Lieutenant-

Governor in Council may do, execute, and

fulfil every act, deed, matter, or thing

necessary for the carrying-out of the said

Agreement between the Governments of the

Dominion and the Province according to its

true intent, and for giving effect to the

report of the said Commission, either in

whole or in part, and for the full and final

adjustment and settlement of all differences

between the said Governments respecting

Indian lands and Indian affairs in the

Province.

3. Without limiting the general powers by

this Act conferred, the Lieutenant-Governor

in Council may, for the purpose of

adjusting, readjusting, or confirming the

reductions, cut-offs, and additions in

respect of Indian reserves proposed in the

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said report of the Commission, carry on such

further negotiations and enter into such

further agreements, whether with the

Dominion Government or with the Indians, as

may be found necessary for a full and final

adjustment of the differences between the

said Governments."

The results of these adjustments in the territory were not

significant.

There followed further serious efforts by the Dominion to

obtain the agreement of the Indians to the Report, including a

series of unsuccessful meetings in Victoria in 1923 in which the

province declined to participate. The Indians were then

standing firm on a proposal they had made in 1920 which the

Dominion had found unacceptable. As a consequence, Scott felt

constrained to recommend the acceptance of the McKenna-McBride

Report. He wrote:

"With reference to the question of

litigation, they wish to be considered as

willing to have a settlement out of Court,

but if it seems impossible to get a fair and

equitable settlement they wish to 'press on

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to the Judicial Committee of the Privy

Council.'

In spite of this vigorous protest from

the Indians as to the acceptance of the

report of the Royal Commission, I cannot,

with a due sense of responsibility and

having the best interests of these people at

heart, recommend any other action but the

adoption of the report. The Indians will

receive in the aggregate a large acreage of

reserve lands free from any vexatious claims

of the Province, such as the so-called

'reversionary interest' has been in the

past. While it is true that in some

districts it would have been more

satisfactory if larger reserves could have

been set aside for them, conditions peculiar

to British Columbia rendered that almost

impossible, but the report of the Royal

Commission provides reserves for these

Indians which can be developed and utilized

by them. Over against their complaint that

they have not sufficient lands, we must set

the statement, often well founded on fact,

that they are not making good use of the

lands provided for them." (Ex. 1203-13, p.

71)

The Dominion Government then by Order in Council P.C. 1265,

approved July 19, 1924, confirmed the McKenna-McBride Report in

the following terms:

"...the Royal Commission, as set out in

the annexed schedules, be approved and

confirmed as constituting full and final

adjustment and settlement of all differences

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in respect thereto between the Governments

of the Dominion and the Province, in

fulfilment of the said Agreement of the 24th

day of September, 1912, and also of Section

13 of the Terms of Union, except in respect

to the provision for lands for Indians

resident in that portion of British Columbia

covered by Treaty No. 8..." (Ex. 1203-12;

Tab 14, p.3)

The Province also implemented the Report by an appropriate

Order-in-Council.

In 1926 Parliament received yet another Petition, this one

from the Allied Indian Tribes of British Columbia, which

requested steps be taken for defining and settling all issues

required to be decided between the Indian tribes and the

governments by the Imperial Privy Council. The Indians

requested that their petition be referred to a Select Committee

for consideration.

There was a reference to a Select Committee which held some

hearings and submitted its report to Parliament in June 1926.

The Committee concluded:

"Having given full and careful consideration

to all that was adduced before your

Committee, it is the unanimous opinion of

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the members thereof that the petitioners

have not established any claim to the lands

of British Columbia based on aboriginal or

other title, and that the position taken by

the Government in 1914, as evidenced by the

Order in Council and Mr. Doherty's letter

above quoted, afforded the Indians full

opportunity to put their claim to the test.

As they have declined to do so, it is the

further opinion of your Committee that the

matter should now be regarded as finally

closed."

(Ex. 1209-3; s. XII, p. x)

I understand the reference to 1914 refers to P.C. 751 of

that year.

In addition, however, the Committee recommended that, in

lieu of a treaty under which subsidies are paid to many tribes

in Canada, the British Columbia tribes should receive an annual

payment of $100,000, (increased in 1979 to $300,000),

distributed per capita, and this payment has been paid by Canada

to British Columbia Indians each year since 1926. The Report of

the Select Committee was approved by resolutions of both the

House of Commons and the Senate in 1927 but, not having been

passed in statutory form with Royal Assent, these resolutions

express only the view of Parliament and do not have the force of

law.

After 1927, and probably from P.C. 1265 in 1924, Canada

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treated all questions as between British Columbia and itself as

finally settled. This was demonstrated by the fact that Canada

has actually purchased additional lands required for reserves

from the province.

In response to a further petition from the Kitwankool

Indians in 1934 asserting "aboriginal title", the Assistant

Indian Commissioner for B.C. wrote to the Hazelton Indian Agent,

under date of February 19, 1934, as follows:

"...any question relating to Indian lands in

British Columbia was dealt with by

Parliament as a result of an investigation

made by a Special Joint Committee of the

Senate and House of Commons appointed to

enquire into the claims of the Allied Indian

Tribes of British Columbia as set forth in

their petition submitted to Parliament in

June, 1926.

The Report and evidence of the Special Joint

Committee submitted to Parliament was

printed by Order of Parliament by the King's

Printer in 1927 and copies were subsequently

sent to all Indian Agents and to all leading

Indians in British Columbia wherever these

were found to have shown an interest in the

proceedings reported on. Each Indian Agent

was requested by the late Commissioner to

make known to the Indians the contents of

this Report and explain to the Indians who

received copies anything therein which might

seem to be ambiguous or calling for

explanation. I have no record as to whether

or not the late Agent carried out the

instructions of the Commissioner but in

reply to the present enquiry I would refer

you, as well as the Kitwancool Indians, to

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the Report above mentioned, and would state

that so far as this office may be concerned,

the Indian Land Question, so called has been

finally disposed of by legislation in the

Parliament of Canada as a result of the

Report of the Joint Committee, such action

having been taken by Parliament under

authority vested in the Parliament by virtue

of its powers under the British North

America Act.

The Royal Commission on Indian Affairs dealt

with the land situation of the Kitwancool

Indians to the very best of their ability

but they did not get the full support of the

Indians...

Kindly advise the Kitwancool Indians if

necessary that it will be useless for them

to submit petitions to this office along the

same lines as those which they have

submitted in the [p]ast for if they do they

will be referred to the action taken as

above stated by which their aboriginal

claims are considered to have been

reasonably met."

While the foregoing is not strictly accurate, for there was

no legislation confirming the Select Committee Report, it

probably represents the position Canada has taken on the ground,

although Canada has not always asserted, and did not argue in

this case, that all aboriginal interests have been extinguished.

So firm was the Dominion, however, that all questions had

been resolved, the Parliament in 1927 actually passed

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legislation aimed at prohibiting anyone from assisting in the

financing of Indian Land Claims. This provision was not

repealed until 1951 with the passing of The Indian Act (1951)

S.C. c.29.

I do not consider it necessary to mention anything else

which occurred between 1927 and the commencement of this action

in 1984, except that the reserves in British Columbia were

ultimately conveyed to Canada, after all had been surveyed, by

B.C. Order-in-Council #1053 dated July 29, 1938 (the Peace River

and Railway Belt lands and reserves were conveyed earlier).

Particularly, I do not find it necessary to discuss

various policy statements made by Canada since Calder reflecting

a changed Federal attitude to Indian land claims, or indeed the

recent statements made by the province in that connection.

These are political matters which do not bear upon the

resolution of the legal issues which arise in this case.

Summary

I have by no means covered the historical record with the

thoroughness of counsel who furnished much more extensive detail

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than I have attempted to describe. I have included enough to

provide an historical background for the discussion ofnthe law

which follows.

It seems to me that there has always been much uncertainty

about the true nature of "Indian title" in the province. Even

some Indians have not always been completely consistent because

there are references in the historical record to suggestions

that enlarged reserves were their primary concern. In this

respect, of course, the speakers, whoever they may have been,

did not speak for anyone but themselves.

I think it is fair to

conclude that the basic position of most Indians, at least since

about 1880, was that the various Indian tribes or peoples owned

all or most of the province.

As I have pointed out, the Imperial and colonial officials,

while recognizing aboriginal interest in village sites, etc. did

not believe there was any impediment to the settlement and

development of the colony.

After Confederation, Dominion officials also seemed to

recognize an aboriginal interest less than ownership but its

dimensions were not clearly articulated. Certainly it did not

prevent the Crown, as advised by Dominion officials, from

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accepting transfer from the province of immense blocks of land

for railway purposes. I can only conclude, even prior to the

decision in the St. Catherine's Milling case in 1888, that the

Dominion officials believed Indian interests were subject to the

pleasure of the Crown, but they also though the province

"should" buy up such interests. They seemed to think such could

easily be accomplished, perhaps because of the success they were

experiencing in Ontario and on the prairies.

Eventually, in 1912, the Dominion officials agreed to

"drop" the question of "Indian title" during the negotiations

about reserves, but continued thereafter to seek the agreement

of the province to have the larger question resolved by

litigation.

It is difficult to summarize the position of the province.

Before and after the creation of the colony of Vancouver Island

the Hudson's Bay Company and the Colony acquired some lands by

treaty. This was confined to Vancouver Island, may have been

confined in some cases to lands adjacent to villages, and may

have been motivated in part by concern for the safety of the

settlers. Since Confederation, the position of the province has

been consistent, even unyielding, on the question of "Indian

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title," but less unyielding about reserves.

In my view there is no profit in seeking to assign blame

from such a great distance. It is timely and appropriate that

all these questions should now finally be resolved. This

judgment is the necessary first step in that process.

As already mentioned, I do not consider myself bound by

historical statements made either by Indians or Crown officials

about questions of law.

I am not persuaded any of them spoke

with a complete understanding of either the law or the facts,

and the law to-day is much different from what it was just a few

years ago. For example, these men all spoke without the

assistance of authorities such as Calder, Guerin and Sparrow.

Also Indians and officials could honestly have been wrong, or

even wrong-headed in some of the statements they made while

still having an honest belief in what they said. I find no need

to judge the conduct or the bona fides of any of the

participants in this history.

My responsibility is to apply the present law to the facts

as I understand them. I do not propose to attempt a

reconciliation of all the different views and activities of the

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Indians and historical actors who shaped the course of the

province before and since Confederation. Further, it is not my

responsibility to fix blame although I shall continue to express

views about the consequences of some of the policies and

activities of both the Indians and the officials.

This period also saw the continuation by the Indians of a

claim of some kind of Indian interest; the allotment and

adjustment of reserves; some specific injustices; the gradual

confrontation by the Indians of the cash and wage economy; and

the efforts of the two governments to settle the "Indian

question."

It does not really matter whether the missionaries inspired

the dispute, and Loring's reports and observations have only

historical, not legal importance. What is important is that a

serious legal question which had been identified in the colonial

period continued to be pressed by the Indians while the

governments could not agree on a solution and made alternative

arrangements by the use of successive reserve commissions.

Looking at the "Indian Land Question" only from the

perspective of reserves, it is necessary at this late date to be

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careful in assessing the fairness of the result of the reserve

allocation process. As shown, Indian populations in the

territory were small, and although some fairly large reserves

were established, (some being hundreds of acres), most were

quite small particularly where access to the fishing sites was

the primary consideration. The reserves did, however, include

village sites and some surrounding areas including the crucial

canyons where fishing was most productive. In addition, the

Indians were assured that they were not required to live on

reserves and could hunt and fish anywhere they wished.

Having regard to the fish economy which furnished most of

the subsistence requirements of the Indians, it was thought

small reserves at village and canyon sites were sufficient, and

the policy was to give Indians whatever other land they were

actually using. I suspect the process may not have been

sufficiently understood to be translated into actual fairness,

as many of the Indians were away fishing when the commissioners

came to their villages. There were at least 20 known cases of

real injustice through pre-emption dispossession in the

territory, some of which are still remembered by elders who gave

evidence at trial.

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The actual reserves, at the present time, are shown on Ex.

1243-D, (Map 2). There are said to be 62 reserves in the

territory. Most of the Skeena River from Kitwangak to

Kitsegukla is included in Reserves, as is much of the Skeena

from Hazelton to several miles north of Kispiox. There is quite

a large reserve at Kisgegas, but nothing north of Kuldo on the

Skeena. There are several reserves in the Bear Lake area and

upwards of 30 reserves in the south-east. Many of the reserves

in these two last-mentioned areas are administered by Bands

other than the Gitksan or Wet'suwet'en.

In such a huge land much larger reserves should have been

set aside for the use of these indigenous peoples but there are

many suggestions that, at the time of the McKenna-McBride

Agreement, they were not always using the land they already had.

After the adjustments brought about by the McKenna-McBride

process, which were not significant in the territory, the

plaintiffs' total reserves comprise about 45 square miles.

I suspect Wilson Duff is correct in his Indian History of

British Columbia, when he said at p. 61, that the Indians

"...not being farmers...did not ask for very much..." He even

suggested that in no case did they ask for more that 10 acres

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per family but that may not be strictly correct because some

Indians in the territory claimed reserves stretching for 35

miles or so along the Skeena. In addition to reserves, however,

it is necessary to keep in mind the annual substantial cash and

service payments and allowances which have been paid to or for

Indians. The Indians deeply resent both the form and the

quantum of these "benefits" which, both provincially and

nationally, amount to billions of dollars annually.

While I have the sense that the Gitksan and Wet'suwet'en

may be substantially better off than many aboriginal people in

British Columbia, (largely because of the generally prosperous

local economy based mainly upon fishing and the forest industry

in which many of them have worked), they remain socially and

economically disadvantaged.

I recently recall hearing Mr. Miles Richardson, a spokesman

for the Haida nation being interviewed. He was asked why his

people have become so active in land claims and he only replied

"Have you seen how my people live?"

Without intending any offence, I have driven through some

of the reserves which demonstrate disadvantages, and I have

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witnessed first-hand how some of them live. It is interesting

to note that housing on reserves seems to be much better where

there is (or was) a payroll such as from the sawmill at

Kitwangak.

The most distressing evidence I heard during the entire

trial was firstly the evidence of young Chief Glen Williams (Ax

Gwin Desxw) of Kitwangak who said that the High School drop-out

rate for his people, that is the percentage of students who do

not complete High School, is 80%, and secondly that the saw

mills at Hazelton and Gitwangak are closed or closing.

The latter is ruinous in the near term which may somehow be

overcome; the former is ruinous in both the near and long term,

and irremediable. Mr. Williams also mentioned other priorities

such as housing, a treatment centre for alcohol and drugs, and a

fishing by-law as well as education.

The most obvious wisdom I heard was from Mr. R. M.

McIntyre, who has been employed by Canada working with Indians

since 1956. He said:

" ...in my opinion I would say that the

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biggest -- that the biggest problem facing

these people today is one of lack of

economic opportunity, and I think if they

had a -- if they had an improved economic

circumstance that many of their -- of their

social problems might be lessened.

THE COURT: I have heard in this evidence --

in this case evidence about employment,

which I gather would be included within your

category of economic opportunity. I have

heard about education, housing, alcohol and

drugs, health, gambling. I dare say there

are others. Could you rate them as degrees

of seriousness, or is that a reasonable

request to make?

A. Well, bearing in mind that the last

several years of my career have been

oriented to things of an economic

development nature, I don't know as I'm now

really that qualified to comment on their

social circumstance. I observe what appears

to be considerable

improvement of that. For instance, I

see a number of good quality homes that have

sprung up. I see -- I see community halls

and recreation facilities that have come

into existence, I am aware that band

councils are apparently taking on greater

responsibility, I see a decline in the

number of offices of the Department of

Indian Affairs, and I sense from my

discussions with my former colleagues and

acquaintances over in that department that

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their roles have substantially changed. But

my own recent experience is that there is

still -- still room for economic

development, and in my interests in dealing

with Indian people in the last few years,

and indeed my motivation for leaving the

Department of Indian Affairs, was because I

was personally more enthusiastic about

working in an economic development area than

I was in social and other areas of which

Indian Affairs at the time concerned itself.

I don't know whether I've given you a very

good answer."

Superimposed upon this social and economic inequality is a

growing impatience on the part of the Indians for a new

arrangement with the non-Indian community whose members have

ample problems of their own. It is apparent the differences

between the Indians and the other community are as great, or

perhaps greater, than they ever were. Neither community has

formulated reasonable expectations of the other. The situation

cries out for realism on all sides.

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PART 13. THE AUTHORITIES, AND SOME COMMENTS

l. Introduction

The plaintiffs' claims are set out in their Statement of

Claim. In addition to its primary defences that there never

were any aboriginal interests in British Columbia, or that they

have been extinguished, the province pleads a number of

constitutional and legal defences.

The province argues that, apart from extinguishment which I

shall reach eventually, there cannot be valid aboriginal claims

in British Columbia. The province says, further, even if there

ever were such rights, they have been settled by the allocation

of reserves I have already described in which Canada represented

the Indians. Also, the province says that the plaintiffs, by

accepting and using reserves and subsidies in lieu of a treaty,

have released all aboriginal rights. The province also pleads

and relies upon conventional defences such as limitation of

actions, both for the land and damages claims, and the Crown

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Proceeding Act, R.S.B.C. 1979, c. 86. It was also argued that

many aboriginal territories have been abandoned.

I propose to set aside for later attention all these

conventional defences and I shall first struggle with the

substantial questions of creation and extinguishment of

aboriginal interests.

I do not think it is necessary to cite the various

constitutional provisions, but the constitutional scheme is

clearly that each of Canada and the provinces may legislate only

with respect to the classes of subjects assigned to them by s.

91 and 92 of the Constitution Act; Canada has the charge of

Indians and lands reserved for Indians; the fee in all

ungranted, non-reserve lands belongs to the Crown in right of

the province, subject to trusts and other interests existing at

the date of Union in 1871; and aboriginal rights existing as of

April 1, 1983 are recognized and confirmed by Sec. 35 of the

Constitution Act, 1982.

Subject to what I shall later say about these lesser

defences, I propose to continue my analysis on the basis that

arrangements made between Canada and the province, such as P.C.

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751 and P.C. 1265, do not directly affect whatever aboriginal

claims the plaintiffs may have. Also, I do not propose, for

now, to consider the conduct of the plaintiffs either in

participating in or using

reserve allocations or other benefits as legal releases or

waivers of rights.

In other words, I propose to consider aboriginal interests

in the historical setting I have described, after which I shall

return to consider the other defences.

2. The Authorities

Learned counsel for the plaintiffs furnished 23 volumes of

authorities and treatises; counsel for the province supplemented

the plaintiffs' collection with 8 additional volumes of cases

and statutes; counsel for Canada relied upon the foregoing, but

added several additional authorities.

I do not propose to refer to very many cases. This is

because, although this is a unique case, it is not one of first

impression in so far as many of its issues are concerned. In

fact, the law relating to many of these issues has carefully

Part 13.

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been considered in a number of judgments of the highest

authority from which the governing principles may be extracted.

These cases, and the decisions I shall make in conformance with

these principles will lead me inevitably to some difficult new

questions which have not previously been considered.

In fact, it is seldom that a case as important as this one

has been preceded by such a remarkably similar case. I refer,

of course to Calder, where some of the very same questions were

actually considered by a number of learned judges at all three

levels of the judicial hierarchy.

In that case Davey C.J.B.C. at (1970) W.W.R. 481 commented

upon this question of authorities at p. 485 as follows.

"I am aware that the Supreme Court of the

United States has not so restricted the

application of the Proclamation and has

applied it in some degree to Western

Indians. Moreover, that the Court has

developed from the course of dealing with

Indians and Indians lands in the eastern

part of North America from the Proclamation

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and from the liberal political philosophy of

the Revolution a body of law dealing with

indian rights that incorporates as a matter

of principle the practice that the Crown had

followed as a matter of policy on the

eastern part of the continent. In addition

to the comment made by Lord Davey in Nireaha

Tamaki v. Baker, [at p. 579] about the

American cases, in my opinion the decisions

of the Privy Council, by which we are bound

until the Supreme Court of Canada speaks,

have diverged from the principles laid down

and applied by the Supreme Court of the

United States to Western Indians. For these

reasons the judgments of the Supreme Court

of the United States have to be applied with

caution to the claims of the British

Columbia Indians to aboriginal rights in

their ancient lands.

I too am dubious about the usefulness of American

authorities because they arose in an historical context so

different from this province. The early American cases were

Part 13.

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521

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largely decided in the practical context of defensive treaties

with warlike peoples on the frontier, and the Royal Proclamation

figures in some of the important ones.

American authorities are also concerned largely with

treaties which are absent here. Furthermore, and most

importantly, some of the great decisions of Chief Justice

Marshall's Court, upon which the plaintiffs rely so heavily,

treated the Indian peoples with whom they were concerned as

"diminished sovereign nations" or "domestic dependent nations."

Whether that categorization was adopted in order to give

jurisdiction to the United States Supreme Court or otherwise, is

of no particular importance. The fact is that the law never

granted aboriginals that status in this country or province.

The authority of American cases is also weakened by

statutory provisions such as the Act to Regulate Trade and

Intercourse with the Indians, 1790, and the statutory

substitution of compensation for land claims. In a case such as

this I am reluctant to rely upon American cases except to the

extent they have been adopted by binding authority in this

country.

Part 13.

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More importantly, however, is the fact already mentioned

that these question have already been litigated an in some cases

actually decided in this country, and it is largely unnecessary

to refer to cases from other jurisdictions. I believe I should

attempt to confine myself as much as possible to relevant

Canadian authorities.

I recognize that many Canadian cases, including decisions

of the Supreme Court of Canada, have often referred to decisions

from other countries.

I regard those cases unhelpful to the

extent they rely upon treaties, statutes, proclamations or

recognization of Indian peoples as sovereign or semi-sovereign

nations. I shall, of course, extract from them what I think is

relevant or persuasive, but I consider myself bound only by the

ratio of binding authorities or dicta of the Supreme Court of

Canada or the Privy Council in Canadian appeals.

I turn to a consideration of the leading cases from which I

believe it is possible to extract the principles which govern

this case.

1.

R. v. St. Catherine's Milling and Lumber Company (1885) 10

O.R. 196; aff'd. 13 Ont. App. R. 148; aff'd (1886) 13 S.C.R.

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577: Aff'd (1888) 14 H. L. 47, (J.C.P.C.).

In 1873 the Salteaux tribe of Ojibbway Indians released and

surrendered to Canada all their rights to upwards of 50,000 sq.

miles of country of which approximately 32,000 sq. miles were in

Ontario. This surrender was subject to the right of the Indians

to hunt and fish throughout the surrendered territory except

those portions taken up for settlement, mining, lumbering or

other purposes.

Acting upon the assumption that the beneficial interest in

these lands had passed to Canada, it granted a licence to the

St. Catherine's company to cut and carry away one million feet

of timber from a specified part of such territory. When the

company sought to do this it was sued by Ontario for an

injunction and damages.

The case to a large extent turns upon the terms of the

Royal Proclamation, 1763, and ss. 91 (24), 109 and 117 of the

British North America Act, 1867, which provide:

"91. It shall be lawful [for Canada] to

make laws...

[within classes of subjects], that is to

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say;...

(24) Indians and lands reserved

for the Indians...

109. All Lands, Mines, Minerals, and

Royalties belonging to the several Provinces

of Canada, Nova Scotia, and New Brunswick at

the Union, and all Sums then due or payable

for such Lands, Mines, Minerals, or

Royalties, shall belong to the several

Provinces of Ontario, Quebec, Nova Scotia,

and New Brunswick in which the same are

situate or arise, subject to any Trusts

existing in respect thereof, and to any

Interest other than that of the Province in

the same...

117. The several Provinces shall retain all

their respective public property not

otherwise disposed of in this act, subject

to the right of Canada to assume any lands

or public property required for

fortifications or for the defence of the

country."

Ontario was successful throughout.

The appeal to the Supreme Court of Canada was heard by 6

judges who divided 4 to 2 in favour of Ontario, with Strong and

Gwynne JJ. dissenting. It is only necessary to consider the

conflicting judgments of Strong J. (dissenting) and Taschereau

J., who sided with the majority in the Supreme Court of Canada

before I refer to the opinion of the Privy Council.

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Strong J. who reached the same dissenting conclusion as

Gwynne J. referred extensively to United States authorities and

concluded at p. 612:

"It thus appears, that in the United States

a traditional policy, derived from colonial

times, relative to the Indians and their

lands has ripened into well established

rules of law, and that the result is that

the lands in the possession of the Indians

are, until surrendered, treated as their

rightful though inalienable property, so far

as the possession and enjoyment are

concerned; in other words, that the dominium

utile is recognized as belonging to or

reserved for the Indians, though the

dominium directum is considered to be in the

United States. Then, if this is so as

regards Indian lands in the United States,

which have been preserved to the Indians by

the constant observance of a particular rule

of policy acknowledged by the United States

Courts to have been originally enforced by

the Crown of Great Britain, how is it

possible to suppose that the law can, or

rather could have been, at the date of

confederation, in a state any less

favourable to the Indians whose lands were

situated within the dominion of the British

Crown, the original author of this

beneficent doctrine so carefully adhered to

in the United States from the days of the

colonial governments? Therefore, when we

consider that with reference to Canada the

uniform practice has always been to

recognize the Indian title as one which

could only be dealt with by surrender to the

Crown, I maintain that if there had been an

entire absence of any written legislative

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526

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act ordaining this rule as an express

positive law, we ought, just as the United

States Courts have done, to hold that it

nevertheless existed as a rule of the

unwritten common law, which the Courts were

found to enforce as such, and consequently,

that the 24th sub-section of section 91, as

well as the 109th section and the 5th sub-

section of section 92 of the British North

America Act, must all be read and construed

upon the assumption that these territorial

rights of the Indians were strictly legal

rights which had to be taken into account

and dealt with in that distribution of

property and proprietary rights made upon

confederation between the federal and

provincial governments...

To summarize these arguments, which appear

to me to possess great force, we find, that

at the date of confederation the Indians, by

the constant usage and practice of the

Crown, were considered to possess a certain

proprietary interest in the unsurrendered

lands which they occupied as hunting

grounds; that this usage had either ripened

into a rule of the common law as applicable

to the American Colonies, or that such a

rule had been derived from the law of

nations and had in this way been imported

into the Colonial law as applied to Indian

Nations...,"

At p. 623 Strong J. turned to the Royal Proclamation, 1763,

which he relied upon as furnishing an even stronger argument in

favour of the company's grant from Canada. He regarded the

Proclamation as a "legislative act" assuring to the Indians the

right and title to possess and enjoy these lands until they

Part 13.

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527

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thought fit of their own free will to cede or surrender them to

the Crown. He said the Proclamation operated at the time of

confederation as an express legislative appropriation of the

land for the use and benefit of the Indians by the designation

of "lands reserved to the Indians," in the Proclamation which

brought them within s. 91 (24).

Taschereau J., who gave one of the majority judgments,

clearly disagreed with the views of Strong J., believing the

United States' practice of treating with the Indians arose

because the settlers or the King himself "...deemed it cheaper

or wiser to buy their rights than fight them, but that was never

construed as a recognition of their right to any legal title

whatsoever. The fee and the legal possession were in the King

or his grantees."

At p. 647 Taschereau J. said:

"Did the sovereign thereby divest himself of the

ownership of this territory? I cannot adopt that

conclusion, nor can I see anything in that

Proclamation that gives to the Indians forever

the right in law to the possession of any lands

as against the Crown. Their occupancy under that

document has been one by sufferance only. Their

possession has been, in law, the possession of

the Crown. At any time before confederation the

Crown could have granted these lands, or any of

them, by letters patent, and the grant would have

Part 13.

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528

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transferred to the grantee the plenum et utile

dominium, with the right to maintain trespass,

without entry, against the Indians. A grant of

land by the Crown is tantamount to conveyance

with livery of seisin. This Proclamation of 1763

has not, consequently, in my opinion, created a

legal Indian title...

It was further argued for the

appellants that the principles which have

always guided the Crown since the cession in

its dealing with the Indians amount to a

recognition of their title to a beneficiary

interest in the soil. There is, in my

opinion, no foundation for this contention.

For obvious political reasons, and motives

of humanity and benevolence, it has, no

doubt, been the general policy of the Crown,

as it had been at the times of the French

authorities, to respect the claims of the

Indians. But this, though it unquestionably

gives them a title to the favourable

consideration of the Government, does not

give them any title in law, any title that a

Court of justice can recognize as against

the Crown. If the numerous quotations on

the subject furnished to us by appellants

from philosophers, publicists, economists

and historians, and from official reports

and despatches, must be interpreted as

recognizing a legal Indian title as against

the Crown, all I can say of these opinions

is, that a careful consideration of the

question has led me to a different

conclusion.

The necessary deduction from such a

doctrine would be, that all progress of

civilization and development in this country

is and always has been at the mercy of the

Indian race. Some of the writers cited by

the appellants, influenced by sentimental

and philanthropic considerations, do not

hesitate to go as far. But legal and

constitutional principles are in direct

Part 13.

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529

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antagonism with their theories. The Indians

must in the future, every one concedes it,

be treated with the same consideration for

their just claims and demands that they have

received in the past, but, as in the past,

it will not be because of any legal

obligation to do so, but as a sacred

political obligation, in the execution of

which the state must be free from judicial

control." (pp. 647-9)

As a result, Taschereau, J. and the other majority judges

concluded that these were Crown lands at the time of

Confederation and belonged to Ontario under s. 109 and 117 of

the British North America Act, 1867.

It is significant that the views of Strong J., which

largely parallel the arguments of the plaintiff in this case,

and the contrary views of Taschereau J., were so clearly before

the Judicial Committee in the appeal which followed.

In the Privy Council the judgment was given by Lord Watson.

At p. 52 he said the case related exclusively to the right of

Canada to dispose of the timber, but added that it necessarily

involved the determination of the larger question between the

governments with respect to the legal consequences of the Treaty

of 1873. After reciting several portions of the Royal

Proclamation, Lord Watson said the territory in dispute had been

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530

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in Indian occupation from 1763. I assume this means the Indians

had been there before 1763. In any event, it is obvious Lord

Watson chose to relate the Indian interest in the lands only to

the Proclamation. At p. 54 he said:

" Their [Indian] possession such as it was,

can only be ascribed to the Royal

Proclamation in favour of all Indian tribes

then living under the sovereignty and

protection of the British Crown."

As was later pointed out in Calder, this does not mean the

Proclamation was the only source of title, only that Lord Watson

chose to rely upon it exclusively.

In a passage most often cited, Lord Watson at p. 55 said

that under the terms of the Proclamation:

"...[the] tenure of the Indians was a

personal and usufructuary right, dependent

upon the good will of the Sovereign. The

lands reserved are expressly stated to be

'parts of Our dominions and territories;'

and it is declared to be the will and

pleasure of the sovereign that, 'for the

present,' they shall be reserved for the use

of the Indians. There was a great deal of

learned discussion at the Bar with respect

to the precise quality of the Indian right,

but their Lordships do not consider it

necessary to express any opinion upon the

point. It appears to them to be sufficient

for the purposes of this case that there has

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531

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been all along vested in the Crown a

substantial and paramount estate, underlying

the Indian title, which became a plenum

dominium whenever that title was surrendered

or otherwise extinguished."

His Lordship then turned to s. 109 which he said was:

"...sufficient to give to each province,

subject to the administration and control of

its own Legislature, the entire beneficial

interest of the Crown in all lands within

its boundaries, which at the time of the

union were vested in the Crown." (p. 57)

It was pointed out that if the Indians had the fee at the

time of the treaty, which came after Confederation, Ontario

could have obtained no benefit. It was, however, judicially

determined that:

"The Crown has all along had a present

proprietary estate in the land, upon which

the Indian title was a mere burden. The

ceded territory was at the time of the

union, land vested in the Crown, subject to

'an interest (the Indians) other than of the

Province in the same' within the meaning of

s. 109; and must now belong to Ontario..."

(p. 58)

Canada argued in St. Catherine's Milling that its exclusive

jurisdiction under s. 91(24), that is, "Indians, and lands

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532

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reserved for the Indians," carried with it any "patrimonial

interest" of the Crown in these lands. Their Lordships held

against this on the basis of the statutory language which,

despite legislative control, did not deprive the province of its

beneficial interest in these lands when they became

disencumbered of the Indian title.

As a consequence it was held that even though Canada had

exclusive power to regulate the Indians' privilege of hunting

and fishing, that right did not confer upon Canada the power to

alienate, the beneficial interest in the timber having passed to

Ontario at Confederation subject to the "Interest" of the

Indians which had been released.

Comment

The St. Catherine's Milling case is of fundamental

importance. It is one of the few Canadian appellate cases which

makes any comment upon the nature of aboriginal rights. The

extreme views of Strong and Gwynne JJ. were fully argued by

counsel for Canada but not accepted in the Privy Council.

Instead Lord Watson expressed himself in terms far closer to the

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533

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views of Taschereau J., particularly the passage on p. 54 that

"the tenure of the Indians was a personal and usufructuary

right, dependent upon the good will of the Sovereign."

Although Lord Watson expressly stated that it was not

necessary to express any opinion upon the precise quality of

"the Indian right," the description of being a "burden" on the

Crown's title is hardly descriptive of a proprietary interest in

the Indians. Standing alone, St. Catherine's Milling is

authority against aboriginal ownership and jurisdiction and it

establishes that aboriginal rights exist "at the pleasure of the

Crown." Those are judicial pronouncements of fundamental

importance.

Lord Watson's language has been commented upon in some

subsequent cases. In Calder, Judson J. said it did not help to

refer to Indian rights as "personal or usufructuary." Instead,

he referred to the right of Indians to occupy or live on their

lands as their forefathers had done which, translated to this

case, relates at least to village sites and surrounding areas,

and a right of possession or occupancy for use of a larger area.

Judson J. added, however, "There can be no question that this

right was "dependent on the goodwill of the Sovereign" which is

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534

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the same expression used by Lord Watson.

Lord Watson's language has often been approved by the Privy

Council as in Attorney-General for Quebec v. Attorney-General

for Canada, [1921] 1 A.C. 401 and it was expressly approved by

the Supreme Court of Canada as recently as Smith v. the Queen,

[1983] 1 S.C.R. 554, and by Wilson J. in Guerin, at p. 349. In

the latter case Dickson J., in obiter at p. 379, suggests there

may be distinction where, as in Guerin, there was no

constitutional issue, but even then he quoted Chief Justice

Marshall in Johnson v. M'Intosh, at p. 588, that: "All our

institutions recognize the absolute title of the Crown subject

to the Indian right of occupancy" which that learned judge later

found were subject to extinguishment.

While St. Catherine's Milling was a case of rights arising

under the Royal Proclamation, I have no doubt from later

authorities that the plaintiffs' aboriginal rights, if any,

could not be any greater than they would have been under the

Proclamation. I do not believe it was suggested otherwise in

argument. The principles this case states are too well

established for me to challenge or question at this late date.

Part 13.

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535

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I can only conclude on the existing authorities, that St.

Catherine's Milling is powerful authority, binding on me, that

aboriginal rights, arising by operation of law, are non-

proprietary rights of occupation for residence and aboriginal

user which are extinguishable at the pleasure of the Sovereign.

2.

Calder v. Attorney General of British Columbia [1973]

S.C.R. 313

The plaintiffs were members and officers of the Nishga

Nation or its Tribal Council. They sued for a declaration:

"That the aboriginal title, otherwise known

as the Indian Title, of the Plaintiffs to

their ancient tribal territory, hereinbefore

described, has never been lawfully

extinguished."

Although some evidence was called, the case was largely

tried on admissions. For the purposes of the case the Attorney

General admitted that the territory in question, consisting of

1,000 square miles in and around the Nass River Valley,

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Observatory Inlet, Portland Inlet and Portland Canal, had been

inhabited from time immemorial by the plaintiffs' ancestors

where they"...hunted, fished and roamed".

The plaintiffs claimed their title arose out of aboriginal

occupation and is not dependent upon treaty, executive order or

legislative enactment. Alternatively, the plaintiffs argued

that if executive or legislative recognition was required, it

could be found in the Royal Proclamation, 1763.

The Defendant relied entirely upon colonial enactments (the

Calder XIII) and related documents in support of its defence

that aboriginal rights never arose in the province without

express Crown recognition, or alternatively, that such rights,if

any, had been extinguished by colonial enactments.

The trial judge found aboriginal rights never arose in this

province, and further that, if they did, they had been

extinguished. The Court of Appeal (Davey C.J.B.C., Tysoe and

McLean JJA.) reached the same conclusions.

The agreements and admissions made in Calder made it

unnecessary for the Court to try all the factual issues that I

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537

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have struggled with in this case.

In the Supreme Court of Canada, Judson J., with whom

Martland and Ritchie JJ. agreed, found that the Royal

Proclamation had no bearing upon the question of Indian title in

British Columbia. He based this finding upon the language of

the Proclamation, the definition of its geographical limits and

the history of the province. He specifically found that the

"...

Nishga bands...were not any of the several

nations or tribes of Indians who lived under

British protection and were outside the scope of

the Proclamation."

After adverting briefly to the history of the colony,

Judson J. said at p. 328:

"Although I think that it is clear that

Indian title in British Columbia cannot owe

its origin to the Proclamation of 1763, the

fact is that when the settlers came, the

Indians were there, organized in societies

and occupying the land as their forefathers

had done for centuries. This is what Indian

title means and it does not help one in the

Part 13.

The Authorities, And Some Comments

538

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solution of this problem to call it a

'personal or usufructuary right'. What they

are asserting in this action is that they

had a right to continue to live on their

lands as their forefathers had lived and

that this right has never been lawfully

extinguished. There can be no question that

this right was 'dependent on the goodwill of

the Sovereign'.

This passage, with which I respectfully agree, satisfies me

that the plaintiffs' position at law in British Columbia cannot

be greater than it would be if the Royal Proclamation applied in

this province except perhaps with respect to village sites.

Judson J. did not find it necessary to deal with the first

ground of decision which found favour with the Court of Appeal.

Relying upon the agreements of counsel and the admissions of

fact, he went right to the question of extinguishment. With

regard to the Calder XIII enactments, Judson J. agreed with the

conclusion of the trial judge which were quoted (in Calder) at

p. 325:

Part 13.

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539

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"'The various pieces of legislation referred

to above are connected, and in many

instances contain references inter se,

especially XIII. They extend back well

prior to November 19, 1866, the date by

which, as a certainty, the delineated lands

were all within the boundaries of the Colony

of British Columbia, and thus embraced in

the land legislation of the Colony, where

the words were appropriate. All thirteen

reveal a unity of intention to exercise, and

the legislative exercising, of absolute

sovereignty over all the lands of British

Columbia, a sovereignty inconsistent with

any conflicting interest, including one as

to "aboriginal title, otherwise known as the

Indian title", to quote the statement of

claim. The legislation prior to November

19, 1866, is included to show the intention

of the successor and connected legislation

after that date, which latter legislation

certainly included the delineated lands.'"

Judson J. also quoted with approval the following passage

from the judgment in U.S. v. Santa Fe Ry. Co. (1941) 3l4 U.S.

339 at 347:

"'Nor is it true, as respondent urges, that

a tribal claim to any particular lands must

be based upon a treaty, statute, or other

formal government action. As stated in

Cramer v. U.S. (1922), 261 U.S. 219 at 229,

43 S. Ct. 342, 67 L. ed. 626, "The fact that

such right of occupancy finds no recognition

in any statute or other formal governmental

action is not conclusive."

Extinguishment of Indian title based on

aboriginal possession is of course a

Part 13.

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540

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different matter. The power of Congress in

that regard is supreme. The manner, method

and time of such extinguishment raise

political, not justiciable, issues. Buttz

v. Northern Pacific Railroad, 119 U.S. 55,

66 S. Ct. 100, 30 L. ed. 330. As stated by

Chief Justice Marshall in Johnson v.

McIntosh [supra] at p. 586, "the exclusive

right of the United States to extinguish"

Indian title has never been doubted. And

whether it be done by treaty, by the sword,

by purchase, by the exercise of complete

dominion adverse to the right of occupancy,

or otherwise, its justness is not open to

inquiry in the Courts. Beecher v. Wetherby

(1877), 95 U.S. 517 at 525, 24 L. ed. 440 at

441.'"

Judson J. then referred to the Terms of Union between

British Columbia and Canada and the legislation passed

consequent upon the McKenna-McBride Commission and Report and

concluded that in adjusting reserves, including those set aside

for Nishga Indians, the federal authority "...did act under its

powers under s. 9l(24) of the B.N.A. Act" and "agreed, on behalf

of the Indians, with the policy of establishing these reserves."

He also commented upon the establishment of the Railway

Belt which he said was inconsistent with the recognition and

continued existence of Indian title. He found the 14 Vancouver

Island treaties and Treaty 8 had nothing to do with the question

of whether any Indian title was extinguished in the colonial

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541

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period.

The ratio of Judson J.'s judgment is found at p. 344 where

he said:

"In my opinion, in the present case,

the sovereign authority elected to exercise

complete dominion over the lands in

question, adverse to any right of occupancy

which the Nishga Tribe might have had, when,

by legislation, it opened up such lands for

settlement, subject to the reserves of land

set aside for Indian occupation."

It is apparent that Judson J. did not think an express

statutory statement of an intention to extinguish was required.

Inconsistency in his view was sufficient.

He accordingly would have dismissed the appeal on the

ground of extinguishment, but he also agreed with the judgment

of Pigeon J., which I shall mention in a moment.

In a long judgment in which Spence and Laskin JJ.

concurred, Hall J. reached different conclusions. He briefly

touched on the nature of aboriginal rights at p. 352, but found

it unnecessary precisely to state their exact nature and extent

as he considered the real issue was whether such rights were

extinguished by the Calder XIII enactments.

Part 13.

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542

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Hall J. dealt extensively with the test for extinguishment,

suggesting that:

"...if the right is to be extinguished it

must be done by specific legislation in

accordance with the law." (p. 353)

and at p. 393 he quoted with approval a pronouncement in

Lipan Apache Tribe vs. U.S. (1967) 180 Ct. Cl. 487:

"'While the selection of a means is a

governmental prerogative, the actual act (or

acts) of extinguishment must be plain and

unambiguous. In the absence of a "clear and

plain indication" in the public records that

the sovereign "intended to extinguish all of

the [claimants'] rights" in their property,

Indian title continues."

Hall J. found that the Royal Proclamation, did apply to the

benefit of the Nishga Indians in British Columbia. But at p.

401 Hall J. recognized that his finding about the operation of

the Royal Proclamation did not assist in answering the question

of extinguishment.

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543

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In the view of Hall J. the burden of establishing

extinguishment falls on the government. He found there was no

evidence of a "clear and plain indication" to extinguish the

Indian title. At p. 404 he said: "There is no such proof in

the case at bar; no legislation to that effect." He then

proceeded to discuss the powers of Governors Douglas and Seymour

and their councils in which he quoted extensively from some of

the historical material I have discussed and concluded at p. 413

that:

"...if any attempt was made to extinguish

the title it was beyond the power of the

Governor or of the Council to do so, and,

therefore, ultra vires."

For these and other reasons Hall J. allowed the plaintiffs'

action in full.

Pigeon J., however, with whom Judson, Martland and Ritchie

JJ. agreed, concluded that the absence of a fiat deprived the

trial Court of jurisdiction to adjudicate. As a result, the

action was dismissed leaving all question more or less at large

but with much useful instruction.

Part 13.

The Authorities, And Some Comments

544

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Comment

While there are many exceedingly interesting passages in

both judgments, the case went off on a technical point which is

unfortunate because it dealt with precisely the same issue of

extinguishment which arises again in this case.

The case is instructive on another point. Notwithstanding

their disagreement on the application of the Royal Proclamation,

both judgments assume a right of the Crown to extinguish

aboriginal interests which supports the conclusions of the St.

Catherine's case that aboriginal rights are subject to the

pleasure of the Crown.

Because of the importance of Calder, I shall discuss it

further when I come to consider extinguishment in due course.

3.

The Hamlet of Baker Lake v. Minister of Indian

Affairs, and Northern Development [1980] 1 F.C 518

(F.C.C.).

The plaintiff Inuits, or their representatives, brought

Part 13.

The Authorities, And Some Comments

545

__________________________________________________________________

this action in the Federal Court of Canada asserting "aboriginal

title" over an undefined portion of the Northwest Territories

including approximately 78,000 sq. km. surrounding the community

of Baker Lake in the District of Keewatin. The plaintiffs

claimed relief under several heads additional to aboriginal

title, particularly injunctions restraining the Crown from

issuing land use permits, and mining companies from mining, and

a declaration that the claimed lands are not public or

territorial lands.

The defendants were representatives of the Crown in right

of Canada and certain mining companies carrying on operations in

the area, which operations were alleged by the Inuit to be in

breach of their aboriginal rights.

The Inuit obtained an interim injunction restraining the

defendants, pending the trial, from exploration or other

activities inconsistent with their aboriginal rights.

The Baker Lake area is within what are called the "barren

lands" lying north and east of the tree line which meanders from

Hudson Bay north of Churchill to the Mackenzie River delta north

of Inuvik. The Hamlet of Baker Lake is on the north shore of

Part 13.

The Authorities, And Some Comments

546

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the lake a few kilometres from the mouth of the Thelon River in

about the centre of these Barren Lands. While there are other

food resources, survival of the plaintiffs' ancestors depended

upon the availability of caribou.

The Baker Lake area was part of Rupert's Land granted to

the Hudson's Bay Company in 1670 and was a settled colony,

rather than a conquered or ceded colony, and was admitted into

Canada in 1870. Inuit persons were observed in the area as

early as 1762 but there was no white settlement at Baker Lake

until the Company established itself there in 1914.

While the plaintiffs' ancestors lived a nomadic existence

off the land for a long, long time, starvation became so serious

in the 1950's that the Inuit were actively encouraged by the

government to settle in the Hamlet which, at the time of trial,

was a fairly modern community of about 1,000 Inuit, an increase

from 150 - 200 in 1960. It was found, however, that

notwithstanding this resettlement, the Inuit continued to range

far and wide over their traditional pre-settlement territory

hunting caribou as they always had but now by snowmobile.

Mahoney J., (as he then was), found the Royal Proclamation,

1763, never applied to the barrens. He concluded, however, on

Part 13.

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the authority of Calder, that aboriginal rights arise as well at

common law. He then held that the elements which must be proven

to establish "an aboriginal title cognizable at common law" are:

"l. That they and their ancestors were

members of an organized society.

2. That the organized society occupied the

specific territory over which they assert

the aboriginal title.

3. That the occupation was to the exclusion

of other organized societies.

4. That the occupation was an established

fact at the time sovereignty was asserted by

England."

Relying upon a number of authorities, Mahoney J. held that

the required level of social organization depends upon the needs

of its members, and that the Inuit society, while primitive, did

not change significantly from well before 1610 when Henry Hudson

claimed sovereignty for Britain. He held that their primitive

social organization was sufficient in the circumstances.

There was no real dispute about most of the territory which

the Inuit had always roamed over without competition from other

societies, except in the south-west which Mahoney J. concluded

was not Inuit territory.

Part 13.

The Authorities, And Some Comments

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As a result, Mahoney J. had no difficulty concluding that

the plaintiffs had a common law "aboriginal title to that

territory, carrying with it the right freely to move about and

hunt and fish over it."

He then turned to the question of extinguishment. It was

argued that the plaintiffs' aboriginal "title" was extinguished

by the Royal Charter of 1670 granting the barren lands to the

Company. This argument was rejected on the ground that the

Company's ownership was notional, analogous to that of the

Crown, and that there was no inconsistency between an aboriginal

right superimposed upon the radical title of the Crown.

Mahoney J. also rejected the further argument that the

plaintiffs' right had been extinguished since the admission of

Rupert's Land into Canada by land legislation said to be

inconsistent with aboriginal rights. He concluded that the

clear and plain intention of the Crown to extinguish aboriginal

rights had not been shown, particularly as the said right was

found not to be proprietary or equivalent to surface rights. At

p. 576 he held:

"With the exception of a number of parcels

Part 13.

The Authorities, And Some Comments

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in the hamlet itself, I am entirely

satisfied that the entire territory in issue

remains 'territorial lands' within the

meaning of the Territorial Lands Act and

'public lands' within the meaning of the

Public Lands Grants Act. They are subject

to the Canada Mining Regulations. To the

extent that their aboriginal rights are

diminished by those laws, the Inuit may or

may not be entitled to compensation. That

is not sought in this action. There can,

however, be no doubt as to the effect of

competent legislation and that, to the

extent it does diminish the rights comprised

in an aboriginal title, it prevails."

In the final result, the Inuit were granted a declaration

that the specified lands were "...subject to the aboriginal

right and title of the Inuit to hunt and fish thereon," but

their other claims were dismissed and the injunction granted to

the Indians against the mining companies was dissolved.

Comment

It is difficult to imagine a clearer case for aboriginal

rights than Baker Lake because the plaintiffs' ancestors had

exclusively used these lands for aboriginal purposes for a long,

long time before contact or sovereignty.

Part 13.

The Authorities, And Some Comments

550

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While the plaintiffs did not claim ownership or

sovereignty, they made claims at least equivalent to ownership

which were all dismissed. The mining companies were permitted

to continue their operations on the same lands under legislative

authority. That clearly diminished the exclusivity of the

aboriginal interests of the Inuit. This suggests a

reconciliation which also appears in subsequent cases.

The case is significant because it suggests there is room

for both aboriginal rights and settlement or development.

4. Guerin v. the Queen, [1984] 2 S.C.R. 335.

The Musqueam Band, on the advice of the Department of

Indian Affairs, surrendered 162 valuable acres in their reserve

to the Crown "...forever in trust to lease...upon such terms as

the Government of Canada may deem most conducive to our Welfare

and that of our people."

This surrender followed a series of meetings at which the

proposed terms of lease were discussed with the band members,

but the trial judge found the terms of the lease ultimately

Part 13.

The Authorities, And Some Comments

551

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entered into bore little resemblance to what was discussed and

approved by the Band at the surrender meeting. He also found

the Indians would not have surrendered their land on the basis

contained in the lease. He found liability against the Crown

and assessed damages at $10 million.

Wilson J., speaking for herself, Ritchie and McIntyre JJ.,

said the Crown did not hold the land in trust for the bands.

Although the Indians had no fee in the lands their limited

interest gave rise to a fiduciary obligation of which s. 18 of

the Indian Act is a statutory acknowledgement. She then

concluded that there had been a breach of that fiduciary duty.

Her judgment is based entirely on that concept. The only

reference she makes to the nature of Indian rights generally is

at p. 349 where she said:

" While I am in agreement that s. l8 does

not per se create a fiduciary obligation in

the Crown with respect to Indian reserves, I

believe that it recognizes the existence of

such an obligation. The obligation has its

roots in the aboriginal title of Canada's

Indians as discussed in Calder v. Attorney

General of British Columbia, [1973] S.C.R.

313. In that case the Court did not find it

necessary to define the precise nature of

Indian title because the issue was whether

or not it had been extinguished. However,

in St. Catherine's Milling and Lumber Co. v.

Part 13.

The Authorities, And Some Comments

552

__________________________________________________________________

The Queen (1888), 14 App. Cas. 46, Lord

Watson, speaking for the Privy Council, had

stated at p. 54 that 'the tenure of the

Indians...[is] a personal and usufructuary

right'. That description of the Indian's

interest in reserve lands was approved by

this Court most recently in Smith v. The

Queen, [1983] 1 S.C.R. 554."

Dickson J., as he then was, speaking for himself and three

other judges, noted that a surrender may be absolute or

qualified, conditional or unconditional, and he found a breach

of an equitable obligation or fiduciary duty. In his judgment,

however, he explored "the basis of aboriginal title and the

nature of the interest in land which it represents."

He then briefly reviewed a number of Canadian, American and

Commonwealth decisions and concluded at p. 378 that a change in

sovereignty over a particular territory does not in general

affect the "presumptive title" of the inhabitants, and that:

"That principle supports the assumption

implicit in Calder that Indian title is an

independent legal right which, although

recognized by the Royal Proclamation of

1763, nonetheless predates it...

It does not matter, in my opinion, that

the present case is concerned with the

interest of an Indian Band in a reserve

rather than with recognized aboriginal title

in traditional tribal lands. The Indian

interest in the land is the same in both

Part 13.

The Authorities, And Some Comments

553

__________________________________________________________________

cases: see Attorney-General for Quebec v.

Attorney-General for Canada, [1921] 1 A.C.

401, at pp. 410-11 (the Star Chrome case).

It is worth noting, however, that the

reserve in question here was created out of

the ancient tribal territory of the Musqueam

Band by the unilateral action of the Colony

of British Columbia, prior to

Confederation." (pp. 378-9)

As can be seen from the above, the authority relied upon is

the Star Chrome case, where the Privy Council fell into the

error of thinking the lands in question were subject to the

Royal Proclamation, when they were not. In any event, a

conditional surrender of interests in either class of lands

would impose the same quality of obligation or duty upon the

Crown.

Dickson J. then went on to express a number of views about

the nature of Indian title, suggesting the St. Catherine's

terminology is not useful although it had been accepted in the

unanimous decision in Smith in the previous year. His last

paragraph on page 382 causes me some difficulty. He said:

"Indians have a legal right to occupy and

possess certain lands, the ultimate title to

which is in the Crown. While their interest

Part 13.

The Authorities, And Some Comments

554

__________________________________________________________________

does not, strictly speaking, amount to

beneficial ownership, neither is its nature

completely exhausted by the concept of a

personal right. It is true that the sui

generis interest which the Indians have in

the land is personal in the sense that it

cannot be transferred to a grantee, but it

is also true, as will presently appear, that

the interest gives rise upon surrender to a

distinctive fiduciary obligation on the part

of the Crown to deal with the land for the

benefit of the surrendering Indians. These

two aspects of Indian title go together,

since the Crown's original purpose in

declaring the Indians' interest to be

inalienable otherwise than to the Crown was

to facilitate the Crown's ability to

represent the Indians in dealing with third

parties. The nature of the Indians'

interest is therefore best characterized by

its general inalienability, coupled with the

fact that the Crown is under an obligation

to deal with the land on the Indians' behalf

Part 13.

The Authorities, And Some Comments

555

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when the interest is surrendered. Any

description of Indian title which goes

beyond these two features is both

unnecessary and potentially misleading."

As Guerin was a case about a breach of duty in the

negotiations for a lease of a portion of an established reserve,

the "certain lands" quoted in the above passage probably refers

to reserve lands, particularly when the cases cited, except

Calder, were cases about reserves. This view gains some

strength from the reference to the "Crown's original purpose in

declaring the Indians' interest to be inalienable," because

apart from the Royal Proclamation, which I have found

inapplicable in British Columbia, the Crown has made no

"declaration" of inalienability except with respect to reserves.

I also have some difficulty with the suggestion that, upon

the surrender of "a pure aboriginal right", the Crown would

nevertheless be required to deal with it for the benefit of the

Indians. I can only conclude that Dickson J. was saying that

the principles dealing with breaches of duties owed to

aboriginals would be the same whether the lands in question were

reserve lands or other lands charged with unextinguished

Part 13.

The Authorities, And Some Comments

556

__________________________________________________________________

aboriginal rights.

Dickson J. then went on to agree that the Crown's

obligation to the Indians was not a trust but rather a fiduciary

duty which was breached by entering into a lease upon less

favourable terms than were approved by the Indians.

Estey J., the eighth judge (as Laskin C.J.C. took no part

in the judgment), declined to "resort" to what he called the

"...technical and far-reaching doctrines of the law of trusts

and to concomitant law attaching to the fiduciary." He decided

the case favourably to the Indians on the law of agency.

Comment

Guerin is not a case about common law aboriginal interests,

but rather about a breach of a fiduciary duty relating to

reserve lands and it is not a case about extinguishment. It

clearly supports the view that aboriginal interests arise at law

and do not depend upon statutory enactment or Executive

recognition. The province was not a party.

Part 13.

The Authorities, And Some Comments

557

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5. R. v. Sioui (1990), 70 D.L.R. (4th) 427 (S.C.C.)

Indians of the Lorette Indian Reserve were convicted of the

offenses of cutting down trees, camping and making fires in

places not designated for such purposes in Parc de la Jacques-

Cartier contrary to ss. 9 and 37 of the Regulation respecting

the Parc de la Jacques-Cartier, which had been adopted pursuant

to the Quebec Parks Act. They admitted committing the acts of

which they were charged in the park outside the boundaries of

their reserve, but defended on the ground that they were

practising certain ancestral customs and religious rites which

are the subject of a treaty dated September 5, 1760 between the

Hurons and the British. The treaty is in these terms:

"THESE are to certify that the CHIEF of

the HURON tribe of Indians, having come to

me in the name of His Nation, to submit to

His BRITANNIC MAJESTY, and make Peace, has

been received under my Protection, with his

whole Tribe; and henceforth no English

Officer or party is to molest, or interrupt

them in returning to their Settlement at

LORETTE; and they are received upon the same

terms with the Canadians, being allowed the

free Exercise of their Religion, their

Customs, and Liberty of trading with the

English: -- recommending it to the Officers

commanding the Posts, to treat them kindly.

Part 13.

The Authorities, And Some Comments

558

__________________________________________________________________

Given under my hand at Longueil, this 5th

day of September, 1760.

By the Genl's Command, JOHN COSNAN, Adjut.

Genl.

JA. MURRAY."

At that date in 1760, 3 days before the surrender of

Montreal, the Hurons were settled at Lorette and made regular

use of the territory which is now the said park. The Court of

Appeal found that the 1760 document was a treaty, and that the

customary activities or religious rites practised by the Hurons

in the park were protected by the treaty. Section 88 of the

Indian Act was found to make the accused immune from this

prosecution. Section 88 provides:

"88. Subject to the terms of any treaty and

any other Act of Parliament, all laws of

general application from time to time in

force in any province are applicable to and

in respect of Indians in the province,

except to the extent that those laws are

inconsistent with this Act or any order,

rule, regulation or by-law made thereunder,

and except to the extent that those laws

Part 13.

The Authorities, And Some Comments

559

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make provision for any matter for which

provision is made by or under this Act." (my

emphasis)

The appeal came to the Supreme Court of Canada for

decisions on constitutional questions, namely whether the

document is a treaty, whether it was still in force and, if so,

whether the said regulations are unenforceable with respect to

the accused. The Indians based their whole case upon the treaty

and "...have at no time based their argument on the existence of

aboriginal rights protecting the activities with which they are

charged."

Lamer J. (now C.J.C.) gave the judgment of the Court.

After an extensive historical analysis, and applying

liberal principles of construction, Lamer J. determined that the

1760 document was indeed a treaty which "must in turn be given a

just, broad and liberal construction." He also concluded that

the treaty had not been extinguished.

The importance of the case, for the purposes of this case,

is the part dealing with the interaction of treaty protection

Part 13.

The Authorities, And Some Comments

560

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with provincial regulations.

The Indians argued that they were entitled to carry on

their customs and religion in the park because it is part of a

larger territory frequented by the Hurons in 1760, while the

Crown alleged the operation of the treaty was limited to the

definable Lorette territory which is mentioned in the treaty.

In any event, the Crown argued, these rights should be limited

in accordance with the legislation designed to protect the park

and its users.

Counsel for Canada, an intervenor, argued that the Indians'

claim was really a territorial one and that they would have to

establish a connection between the rights claimed and their

exercise of these rights in a given territory. At p. 49 Lamer

J. said:

"...the problems raised by the territorial

question should be briefly stated. There

are two rights in opposition here: the

provincial Crown's right of ownership over

the territory of the park and the Hurons'

right to exercise their religion and

Part 13.

The Authorities, And Some Comments

561

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ancestral customs on this land. The

ownership right suggests that ordinarily the

Crown can do whatever it likes with its

land. On the other hand, a very special

importance seems to attach to territories

traditionally frequented by the Hurons so

that their traditional religious rites and

ancestral customs will have their full

meaning. Further, the Hurons are trying to

protect the possibility of carrying on these

rites and customs near Lorette on territory

which they feel is suited to such purposes."

Lamer J. disagreed with the majority of the Court of Appeal

that the only territorial limitation should be the area the

Hurons frequented in 1760 because that might include a vast

territory and it would permit trees to be cut and fires to be

started on private property. He said:

"...Even a generous interpretation of the

document...must be realistic and reflect the

intention of both parties, not just that of

the Hurons. The Court must choose from

among the various possible interpretations

of the common intention the one which best

reconciles the Hurons' interests and those

Part 13.

The Authorities, And Some Comments

562

__________________________________________________________________

of the conqueror.

....

The interpretation which I think is called

for when we give the historical context its

full meaning is that Murray and the Hurons

contemplated that the rights guaranteed by

the treaty could be exercised over the

entire territory frequented by the Hurons at

the time, so long as the carrying on of the

customs and rites is not incompatible with

the particular use made by the Crown of this

territory."

Lamer J. then undertook an analysis of the competing

interests of the Indians and the British in 1760. He mentions

that the British were not likely to have intended to grant

rights which might paralyse the Crown's use of its newly

conquered territories, and he assumed the parties:

"...intended to reconcile the Hurons' need

to protect the exercise of their customs and

the desire of the British conquerors to

expand. Protecting the exercise of the

customs in all parts of the territory

frequented when it is not incompatible with

its occupancy is in my opinion the most

reasonable way of reconciling the competing

interests....This gave the English the

necessary flexibility to be able to respond

Part 13.

The Authorities, And Some Comments

563

__________________________________________________________________

in due course to the increasing need to use

Canada's resources....The Hurons, for their

part, were protecting their customs wherever

their exercise would not be prejudicial to

the use to which the territory concerned

would be put. The Hurons could not

reasonably expect that the use would forever

remain what it was in 1760...The Hurons were

only asking to be permitted to continue to

carry on their customs on the lands

frequented to the extent that those customs

did not interfere with enjoyment of the

lands by their occupier...I cannot believe

that the Hurons ever believed that the

treaty gave them the right to cut down trees

in the garden of a house as part of their

right to carry on their customs."

In conclusion, therefore, Lamer J. found that the park was

occupied by the Crown since its establishment by legislation,

but he thought the important question was whether the Crown's

type of occupancy was incompatible with the exercise of the

Indians' customs. He found that some limitation of the exercise

Part 13.

The Authorities, And Some Comments

564

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of rights protected by the treaty must be assumed since 1760,

but although the Crown called evidence on the question he was

not persuaded that the exercise of the rites and customs was

incompatible with the Crown's rights.

The appeal was accordingly dismissed.

Comment

This case is about a treaty, not about aboriginal rights,

but it suggests an approach not different from what was employed

in Baker Lake. This approach seeks to reconcile conflicting

rights so that they may operate together sometimes by limiting

one or both rights reasonably. This approach is also seen in a

different context in Sparrow, which follows next.

6. R. v. Sparrow, [1990] 4 W.W.R. 410 (S.C.C.)

Mr. Sparrow, a Musqueam Indian, was charged under the

Fisheries Act R.S.C. 1970, c. F-14 for fishing with a drift net

longer than permitted by the terms of his Band's food fishing

Part 13.

The Authorities, And Some Comments

565

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licence. He admitted the facts alleged to constitute the

offence but defended on the ground he was exercising an existing

aboriginal right to fish and that the net length restriction was

invalid because it was inconsistent with s. 35(1) of the

Constitution.

This impugned fishing took place in Canoe Pass within the

area of the Musqueam band's food licence and within an area of

the Fraser River where the Musqueam and other bands of Indians

have fished from time immemorial. The licence restricted drift

nets to 25 fathoms in length. Mr Sparrow was using a 45 fathom

net.

Mr. Sparrow was convicted at trial. The Court of Appeal

found Mr. Sparrow was fishing in the ancient tribal territory

where his ancestors had always fished, but concluded that

Parliament retained the power to regulate fishing and to control

Indian lands under ss. 91(12) and (24) of the Constitution Act,

1867. The Court concluded however, that the facts found at

trial were not sufficient to support a defence based upon the

Constitution and dismissed the appeal.

Both Mr. Sparrow and the Crown appealed to the Supreme

Part 13.

The Authorities, And Some Comments

566

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Court of Canada and a constitutional question was stated:

"Is the net length restriction contained in

the Musqueam Indian Band Indian Food Fishing

Licence dated March 30, 1984, issued

pursuant to the British Columbia Fishery

(General) Regulations and the Fisheries Act,

R.S.C. 1970, c. F-14, inconsistent with s.

35(1) of the Constitution Act, 1982?"

Generally speaking, the Fisheries Act gives the Governor in

Council power to make regulations for the proper management of

the coastal and inland fisheries, conservation, commercial and

Indian food fishing, gear and equipment, and licensing.

Under these powers the Governor in Council enacted the

Regulations mentioned in the question, under which the Musqueam

Band was on March 31st issued an Indian food fishing licence, as

it had each year since 1978, "to fish for salmon for food for

themselves and their family" in the specified areas where the

alleged offence occurred. The licence contained time

restrictions as well as the type of gear to be used, notably,

"One drift net twenty-five (25) fathoms in length."

The judgment of the Court was delivered by Dickson C.J.C.

and LaForest J. with whom all the other member of the Court

Part 13.

The Authorities, And Some Comments

567

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concurred. The judgment includes a discussion of the operation

of s. 35 (1) of the Constitution Act, 1982 which provides:

"Rights of the Aboriginal Peoples of Canada"

35 (1) The existing aboriginal and

treaty rights of the aboriginal peoples of

Canada are hereby recognized and affirmed...

"

The Court first considered the word "existing" and

concluded that such rights are those that were in existence when

the Constitution Act, 1982 came into force, and this must be

interpreted flexibly "...so as to permit their evolution over

time." "Existing rights," the Court held, are "affirmed in a

contemporary form rather than in their primeval simplicity and

vigour." The Court rejected the concept of "frozen" rights

which, for example, might have limited present-day Indians to

fishing by aboriginal methods, and without modern gear.

The Court then turned to the aboriginal right in question,

and accepted the correctness of the Court of Appeal's finding

that:

Part 13.

The Authorities, And Some Comments

568

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"...Mr. Sparrow was fishing in ancient

tribal territory where his ancestors had

fished from time immemorial in that part of

the mouth of the Fraser River."

The Court noted the gradual increased stringency of the

Indian right to fish starting in 1878 until 1977 when, except

for those holding a commercial licence, as many did, they could

only fish for food under a special licence. This stringent

regulation, the Crown argued, constituted extinguishment. The

Court rejected that argument, suggesting it confused regulation

with extinguishment. The Court added:

"The test of extinguishment to be adopted,

in our opinion, is that the Sovereign's

intention must be clear and plain if it is

to extinguish an aboriginal right."

The Crown, having only relied upon past regulation as

evidence of extinguishment, was found to have failed to

discharge its burden of proving extinguishment.

The scope of the existing Musqueam aboriginal right to

fish, however, was limited to the right to fish for food, or for

ceremonial and social occasions, their case at trial not having

Part 13.

The Authorities, And Some Comments

569

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been presented on an evolving aboriginal right to fish for

commercial or livelihood purposes. The ingredients of the

plaintiffs' aboriginal rights were not further discussed.

For example, there is no discussion of the important

question of exclusivity mentioned in Baker Lake, even though

there was evidence mentioned by the Court that upwards of 20,000

Indians (compared with only 640 Musqueam), comprising 91 other

tribes, obtain their food fish from the Fraser River, "...some

or all of [whom] may have an aboriginal right to fish there." I

conclude, therefore, that the Court did not intend its comments

in this case to represent a final, comprehensive pronouncement

on the ingredients of aboriginal rights. This must, of course,

be so as the Court was only dealing with the regulation of tidal

fishing which is relatively easy to regulate compared with

multiple land use which I have to consider in this case.

The Court expressly limited its judgment when it adopted

the Court of Appeal's characterization of the right "for the

purpose of this case," and said it would confine its reasons to

the meaning of s. 35 recognition and affirmation of an existing

right "to fish for food and social and ceremonial purposes," and

the impact of s.35 on the regulatory power of Parliament.

Part 13.

The Authorities, And Some Comments

570

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The Indians' position on s. 35 was simply that almost any

regulation of their participation in the fishery would be

"inconsistent" with their right, and a contravention of s. 52(1)

of the Constitution. They argued their right should be subject

only to exceptional circumstances (the onus of which would be on

the Crown) to preserve the aboriginal right for future

generations whenever restricting fishing by others would not

suffice, and when the aboriginal users were unwilling to

implement necessary conservation measures.

Without expressly saying so, the Court rejected this

extreme view, but concluded that, "...over the years the rights

of Indians were often honoured in the breach". In addition, the

Court contrasted the differing federal policies stated in 1969

and 1973, the latter being described as an "expression of

acknowledged responsibility," which included the federal

government's willingness to negotiate regarding claims of

"aboriginal title," specifically in British Columbia, Northern

Quebec and the Territories without regard to formal supporting

documents. The Court quoted the federal government's 1973

statement, saying it:

Part 13.

The Authorities, And Some Comments

571

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"...is now ready to negotiate with

authorized representatives of these native

peoples on the basis that where their

traditional interest in the lands concerned

can be established, an agreed form of

compensation or benefit will be provided to

native peoples in return for their

interest."

I suppose the federal government stated its position as it

did, implying a surrender of aboriginal rights in exchange for

"compensation or benefit" because the federal government has no

jurisdiction in matters such as land assigned exclusively by the

Constitution to the provinces and, the federal authority could

not offer more than compensation.

Returning to Sparrow, the Court, after referring to the

Nowegijick principle, quoted with approval the language of

MacKinnon A.C.J.O. in R. v. Taylor and Williams (1981), 34 O.R.

(2d) 360 (Ont. C.A.), quoted by Blair J.A. in R. v. Agawa,

(1988), 28 O.A.C. 201 at 215-16, as follows:

"The second principle was enunciated by the

late Associate Chief Justice MacKinnon in R.

v. Taylor and Williams (1981), 34 O.R. (2d)

360. He emphasized the importance of Indian

history and traditions as well as the

perceived effect of a treaty at the time of

its execution. He also cautioned against

determining Indian right "in a vacuum." The

Part 13.

The Authorities, And Some Comments

572

__________________________________________________________________

honour of the Crown is involved in the

interpretation of Indian treaties and, as a

consequence, fairness to the Indians is a

governing consideration. He said at p. 367:

"The principles to be applied to

the interpretation of Indian

treaties have been much canvassed

over the years. In approaching

the terms of a treaty quite apart

from the other considerations

already noted, the honour of the

Crown is always involved and no

appearance of 'sharp dealing'

should be sanctioned."

This view is reflected in recent judicial

decisions which have emphasized the

responsibility of Government to protect the

rights of Indians arising from the special

trust relationship created by history,

treaties and legislation: see Guerin v. the

Queen, [1984] 2 S.C.R. 335; 55 N.R. 161; 13

D.L.R. (4th) 321.'" (pp. 23-4)

The Court (in Sparrow) said the general guiding principle

for s. 35(1), is that:

"...the government has the responsibility to

act in a fiduciary capacity with respect to

aboriginal peoples. The relationship

between the government and aboriginals is

trust-like, rather than adversarial, and

contemporary recognition and affirmation of

aboriginal rights must be defined in light

of this historic relationship."

But, the Court also said that every law or regulation that

Part 13.

The Authorities, And Some Comments

573

__________________________________________________________________

affects an aboriginal right is not automatically of no force or

effect. Rather, "Legislation that affects the exercise of

aboriginal rights will nonetheless be valid, if it meets the

test for justifying an interference with a [recognized]

right...."

The Court said, "Rights that are recognized and affirmed

are not absolute. Federal legislative powers continue..." but

they must now be read together with s. 35(1). The Court also

said:

"In other words, federal power must be

reconciled with federal duty and the best

way to achieve that reconciliation is to

demand the justification of any government

regulation that infringes upon or denies

aboriginal rights. Such scrutiny is in

keeping with the liberal interpretive

principle enunciated in Nowegijick, supra,

and the concept of holding the Crown to a

high standard of honourable dealing with

respect to the aboriginal peoples of Canada

as suggested by Guerin...

...

The constitutional recognition afforded by

the provision therefore gives a measure of

control over government conduct and a strong

check on legislative power. While it does

not promise immunity from government

Part 13.

The Authorities, And Some Comments

574

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regulation in a society that, in the

twentieth century, is increasingly more

complex, interdependent and sophisticated,

and where exhaustible resources need

protection and management, it does hold the

Crown to a substantive promise. The

government is required to bear the burden of

justifying any legislation that has some

negative effect on any aboriginal right

protected under s. 35 (1)." (pp. 25-26)

In furnishing an analysis of the s. 35(1) process for

food fishing regulation, the Court suggested two stages, first

to determine if there is interference, and secondly whether such

interference can be justified by reference to the legislative

purpose of the law or regulation, such as conservation. If the

purpose is permissible it is necessary to go to the second stage

of the justification question which relates to the honour of the

Crown which "...must be the first consideration in determining

whether the legislation or action in question can be justified."

On this basis the Court held that first priority, after proper

conservation measures have been taken, must be in satisfaction

of aboriginal food requirements.

Part 13.

The Authorities, And Some Comments

575

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The Court then added further factors to this justification

inquiry, as follows:

"...whether there has been as little

infringement as possible in order to effect

the desired result; whether, in a situation

of expropriation, fair compensation is

available; and, whether the aboriginal group

in question has been consulted with respect

to the conservation measures being

implemented. The aboriginal peoples, with

their history of conservation-consciousness

and interdependence with natural resources,

would surely be expected, at the least, to

be informed regarding the determination of

an appropriate scheme for the regulation of

the fisheries."

Finally, the Court turned to the question of the net length

in this case and concluded there was not sufficient evidence to

permit a s. 35(1) analysis, so a new trial was ordered at which

Mr. Sparrow would have the onus of proving the net restriction

was a prima facie infringement of a collective aboriginal right

to fish for food, and if so, the Crown would have to demonstrate

the regulation is justifiable.

Comment

Part 13.

The Authorities, And Some Comments

576

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Sparrow is obviously a very important case which was

delivered during argument in this case. This gave counsel

limited time to prepare their submissions although they all rose

to the occasion and each claimed to find it helpful. As the

most recent pronouncement of our highest Court on aboriginal

rights, albeit fishing rights under federal jurisdiction and

regulation, and on the impact of s. 35(1), Sparrow is really

about the permissible limits of government regulation. It

builds on the "honour of the Crown" contained in Guerin and

introduces the important question of priority.

Clearly Sparrow adds dimensions to the concept of

aboriginal rights but it follows the trend started in Baker Lake

and Sioui that limits conflicting rights reasonably by a

reconciling process. The full implications of Sparrow cannot be

understood until it has been tested in a number of different

factual contexts. It adds substantially to the jurisprudence,

settles the test for extinguishment, and provides much useful

guidance.

What is lacking in Sparrow, because it was not necessary

for the decision, is any discussion about the interaction of

competing historic principles such as the right of the Crown to

Part 13.

The Authorities, And Some Comments

577

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extinguish aboriginal rights "at its pleasure" and aboriginal

user rights of land.

3.

Summary of Authorities

I apologize to counsel for dealing so briefly with the

many authorities to which they referred in their excellent

arguments. However, I do not find it necessary to analyze more

than those I have just discussed and those already or later

mentioned in this judgment.

Amongst the wisest dicta ever delivered was that of the

judge (unknown to me) who said every case depends upon its

particular facts. With that wisdom in mind, I nevertheless

propose to attempt the dangerous task of summarizing the basic

law. What follows is not intended to be exhaustive.

The above cases provide authoritative answers to some, but

not all of the questions which arise in this case. This case

raises subtle issues not discussed in any of them.

The

authorities deal with the test for extinguishment, but not with

the application of that test in specific circumstances.

Further, as Sparrow was a case within federal jurisdiction

Part 13.

The Authorities, And Some Comments

578

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(fishing), it mandates a reconciliation process which can be

used as a guide to matters within provincial jurisdiction, but

its rigid justification process can hardly be applied strictly

to land use within such a huge territory or to an entire

province.

1. Aboriginal interests arise out of occupation or

use of specific land for aboriginal purposes for a indefinite or

long, long time before the assertion of sovereignty.

2. Aboriginal interests are communal, consisting of

subsistence activities and are not proprietary.

3. Common law aboriginal rights exist at the pleasure of

the Crown and may be extinguished when the intention of the

Crown is clear and plain. This power reposed with the Imperial

Crown during the colonial period. Upon Confederation the

province obtained title to all Crown land in the province

subject to the "Interests" of the Indians. A central question

is this case is whether the plaintiffs' aboriginal rights were

extinguished during the colonial period.

4. Unextinguished aboriginal rights are not absolute.

Part 13.

The Authorities, And Some Comments

579

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Crown action and aboriginal rights may in proper circumstances

be reconciled. Generally speaking, aboriginal rights:

(a) may be regulated by the Crown only when

(b) such regulation operates to interfere with

aboriginal rights pursuant to:

(i) legitimate Crown objectives which can

honourably be justified; without

(ii) undue interference with such rights; and

(iii) with appropriate priority over competing,

inconsistent activities.

The foregoing is, of course the briefest possible

summary of my understanding of the authorities and it does not

include every aspect of aboriginal rights. I shall now attempt

to apply them to the facts of this case. Additional concepts

must also be considered which arise out of the authorities. If

there are conflicts between this summary and what follows then

the latter must prevail.

Part 13.

The Authorities, And Some Comments

580

__________________________________________________________________

Part 13.

The Authorities, And Some Comments

581

__________________________________________________________________

PART 14. THE PLAINTIFFS' SPECIFIC CLAIMS FOR ABORIGINAL

INTERESTS

The plaintiffs have conveniently classified their claims

under three heads, ownership, jurisdiction (sovereignty) and

aboriginal rights and I shall deal with them on that basis

although, as will be seen, the first two require quite different

treatment from the third. In this Part of my judgment I shall

make a number of findings for the assistance of the parties and

the appeal courts even though some of these findings may turn

out to be unnecessary for the final decisions I shall eventually

reach in this case.

Claims for aboriginal interests must be unique -- sui

generis -- to particular Indians in relation to specific

territory in their historical, social, legal, and political

context. I repeat what Dickson J. said in Kruger and Manuel v.

The Queen (1978) 1 S.C.R. 104 (S.C.C.)

Part 15.

Extinguishment and Fiduciary Duties

582

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"Claims to aboriginal title are woven with

history, legend, politics and moral

obligations."

It is the law and the evidence with which these concepts

must be woven and I understand the foregoing includes not just

Indian history and politics. What has happened both in the

territory and in the province before and since the time of

contact must also be considered.

cannot be ignored.

Two hundred years of history

Before I consider these claims I must first deal with an

important question of status.

(1) The Status of the Plaintiffs in this action

I have attempted to organize this judgment so that I shall

deal with the substantive questions of aboriginal interests

before I consider the lands which could be subject to such

interests. Anticipating the conclusion I have expressed in Part

17 that the plaintiffs have not established their internal

boundaries, it will be convenient now to consider the nature of

the aboriginal interest to which they would be entitled but for

the question of extinguishment.

Part 15.

Extinguishment and Fiduciary Duties

583

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I have already described the form of this action where some

of the hereditary chiefs are advancing these claims for

aboriginal interests on behalf of themselves or on behalf of

their Houses or members.

The authorities satisfy me that a claim for an aboriginal

interest is a communal claim. Counsel for the Nishga in Calder

(at p. 352) described it as "a tribal interest" and Hall J. (at

pp. 401-402) said it was a "communal right." In Sparrow there

are references to a collective rather than an individual, or

sub-group interest. Although Sparrow was a prosecution which

can only be a personal proceeding, most of these cases are

brought on behalf of peoples, bands or tribes: see Martin v. R.

in Right of B.C. (1986) 3 B.C.L.R. (2nd), 60 (B.C.S.C.). The

Crown's "promise" of fair dealing must be classified as a

communal or collective promise rather than separate or divided

promises to a variety of individuals or sub-groups.

While no claim may be defeated by misjoinder or non-joinder

of parties, the question is an important one because it bears

directly upon the identity of the Indians who may participate in

the enjoyment of what, in my view, can only be a communal right.

Part 15.

Extinguishment and Fiduciary Duties

584

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While a claim by a chief for himself could not, and a claim by a

Chief for the members of his House could, be viewed as a

communal claim, the law cannot conveniently recognize discrete

claims by small or sub groups within an aboriginal community.

The plaintiffs' case as pleaded, if established, could

result in some Gitksan and Wet'suwet'en persons being treated

substantially differently from other members of the larger

aboriginal collective. The absence of the Kitwankool people

must also be noted in the formal judgment of the Court.

In addition, the exercise of any aboriginal right by an

individual or sub-group, including the rights of children not

separately represented in this action, could be defeated by

arbitrary or artificial socio-political arrangements by which,

as the evidence shows, non-members have been able to gain

control of Houses with substantial territorial claims through

processes which, although permitted by aboriginal custom, would

make the performance of the Crown's promise almost impossible.

Notwithstanding the failure of the plaintiffs to prove

their internal boundaries, as hereafter explained, there is no

reason why the named plaintiffs should not represent the Gitksan

Part 15.

Extinguishment and Fiduciary Duties

585

__________________________________________________________________

and Wet'suwet'en people on whose behalf this action has been

brought. But any judgment to which they are entitled must be

for the benefit of these peoples generally, and not piecemeal

for the Hereditary Chiefs, their Houses, or their members. It

will be for the parties to consider whether any amendment is

required in order to make the pleadings conform with the

evidence, the Courts findings, and the law as I understand it.

As presently advised, I would consider it sufficient to make the

named plaintiffs' representation "clear and plain" by recitals

in the formal judgment of the Court. I shall leave that

question to counsel.

There is no reason, of course, why an aboriginal people

cannot agree among themselves to allocate the exercise of

aboriginal benefits or practices in any way they wish. That

must be a matter of consent which may or may not be enforceable

in the Court depending upon how it is done and how other

interests are protected. Such agreements would not, of course,

bind either the Crown or anyone not a party to such an

arrangement.

2. Aboriginal Jurisdiction and Ownership

Part 15.

Extinguishment and Fiduciary Duties

586

__________________________________________________________________

With respect, it is difficult to find much legal merit in

these parts of the plaintiffs' claims because success seems to

be foreclosed by powerful pronouncements of high authority. As

to aboriginal sovereignty, there is a clear statement by Dickson

C.J.C. and LaForest J., speaking for a unanimous Supreme Court

of Canada, in Sparrow, at p. ll03 that:

"...there was from the outset never any

doubt that sovereignty and legislative

power, and indeed the underlying title to

such lands vested in the Crown."

The text of the above suggests the Court was speaking as of

the date of British sovereignty but I shall nevertheless

consider the aboriginal position prior to that time.

As to ownership, there is binding legal authority,

particularly the St. Catherines Milling case that seems to be

directly against the plaintiffs on this issue. In that case the

Privy Council at p. 54 made it clear that even under the Royal

Proclamation:

"...the tenure of the Indians was a

Part 15.

Extinguishment and Fiduciary Duties

587

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personal and usufructuary right, dependent

upon the good will of the Sovereign. The

lands reserved are expressly stated to be

"parts of Our dominions and territories:'

and it is declared to be the will and

pleasure of the sovereign that, "for the

present" they shall be reserved for the use

of the Indians, as their hunting grounds,

under his protection and dominion...."

This statement, also by its terms relates to the period

after British sovereignty, and it makes it clear that aboriginal

interests, if any, are not proprietary. As I have stated

elsewhere, I do not understand it to be contended that the

plaintiffs aboriginal interests could be greater than they would

be under the Royal Proclamation.

As mentioned earlier, a number of judges have commented

upon and even restated the above language of the Privy Council

but they have not suggested that aboriginal interests are

proprietary.

I must say, with respect, that in my judgment these

Part 15.

Extinguishment and Fiduciary Duties

588

__________________________________________________________________

authorities are conclusively against the plaintiffs' claims for

sovereignty and ownership. As with jurisdiction, I shall

consider the nature of the ownership, if any, of the plaintiffs'

ancestors prior to British sovereignty.

It will be convenient to deal with these two classes of

claims together in the first instance although I shall later

discuss them in greater detail separately. In this context I

equate jurisdiction to aboriginal sovereignty. In their

argument, plaintiffs' counsel tended to refer to it as

"jurisdiction."

It is obvious that British sovereignty, could not have been

earlier than, say, 1803 when criminal jurisdiction was extended

over the so called "Indian Territories." There are later, more

likely possibilities such as 1805-06 when Simon Fraser

established forts to the east of the territory, or 1822, when

Fort Kilmaurs was opened on Babine Lake, or 1846 when the Oregon

Boundary Treaty was completed, or 1858 when the Mainland Colony

of British Columbia was established. I have concluded that it

does not really make any difference which date is chosen. I

shall next explain why I have that view.

Part 15.

Extinguishment and Fiduciary Duties

589

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(a) The Relevant Date

The plaintiffs' claims for aboriginal interests must depend

upon indefinite, long aboriginal use of specific territory.

I have found some of the ancestors of some of the

plaintiffs have used some of the territory in an aboriginal

setting for a long, long time. I shall discuss the true nature

of this "presence" shortly, but the foregoing satisfies the

threshold "time-depth" requirement for aboriginal interests.

Prior to the arrival of European influences in the

territory, aboriginal practices were probably confined

reasonably close to village sites where salmon could most easily

be obtained, and probably included trapping some animals by

snares and deadfall traps and other means. There was no reason

for them to travel other than between the villages or far from

the great rivers for these or other aboriginal purposes, or to

take more animals than were needed for subsistence although it

is also reasonable to assume they would have travelled as far as

was necessary for such purposes. I consider it highly

significant that there is no evidence of village sites in the

territory north of Gitengasx or south of Moricetown as I would

Part 15.

Extinguishment and Fiduciary Duties

590

__________________________________________________________________

have expected if those areas were populated before contact.

I find that the aboriginal practices of the plaintiffs'

ancestors were, first residence, and secondly subsistence -- the

gathering of the products of the lands and waters of the

territory for that purpose and also for ceremonial purposes.

These both pre-dated the historic period for a long, long time,

and continued into the historic period (with new techniques) up

to the time of sovereignty and since that time but with

decreasing frequency.

I doubt if the commencement of European influence in the

territory was earlier than Cook's landfall in 1778 and it was

more probably around or after the turn of the century. There may

have been isolated intrusions of trade goods from unknown

directions at a slightly earlier period but not in any

significant quantity.

I also doubt if commercial trapping started in the

territory before the 1805 or 1806 and probably a few years later

than that time. Then, with the introduction of metal or

mechanical traps and a market for excess furs, I believe some of

the ancestors of the plaintiffs found it advantageous to spread

out from their villages into distant territories for the purpose

Part 15.

Extinguishment and Fiduciary Duties

591

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of commercial trapping. Apart from this, and the gradual

accommodation of Indians to European trade goods and

civilization (which did not change the nature of aboriginal

activities), I doubt whether anything relevant to this action

occurred in the territory between early European influences and

the assertion of British sovereignty whenever that may have

been.

Thus I find that the plaintiff's ancestors probably lived

an aboriginal lifestyle mainly in the vicinity of and during

travel between their villages and this continued until

sovereignty. Without doubt, however, those lands were also used

after contact for commercial trapping.

In my view, commercial trapping was not an aboriginal

practice prior to contact with European influences and it did

not become an aboriginal practice after that time even if lands

habitually used for aboriginal purposes were also used for

commercial trapping after contact. No question of abandonment

of aboriginal rights would arise so long as those lands were

also used for sustenance, as I am sure they were, although with

modern techniques. For these reasons, commercial trapping is a

neutral fact in the definition of aboriginal lands habitually

Part 15.

Extinguishment and Fiduciary Duties

592

__________________________________________________________________

used by the plaintiffs' ancestors, that is lands near and

between villages and great rivers.

With regard to new lands used after contact for commercial

trapping, particularly in the far north and south extremities of

the territory, it is my view that such would not be an

aboriginal use and those new lands would not be aboriginal lands

even if they were also used for sustenance after contact. This

is because, firstly, commercial trapping is not an aboriginal

practice, and secondly because the use of these new lands, even

partly for aboriginal purposes under European influences after

contact, does not constitute the kind of indefinite long time

use which is required for aboriginal rights. In such matters a

user period of 20 to 50 years or so is of no importance.

Since the only significant development between first

contact with European influences and the date of sovereignty was

the commencement and spread of commercial trapping, and as that

is a neutral fact for the reasons I have just stated, I do not

believe there is any material difference, for the purposes of

this case, between the date of contact and the date of

sovereignty.

In other words, it is only the lands used for a

long time for aboriginal purposes at the time of sovereignty,

Part 15.

Extinguishment and Fiduciary Duties

593

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that qualify as aboriginal lands.

Lands first used for any purpose, such as in the far north

and south, after the date of contact, but before British

sovereignty would not be aboriginal lands because they had not

been used for the requisite long time prior to sovereignty.

(b) Aboriginal Jurisdiction and Ownership Before British

Sovereignty

It is obvious that these two legal concepts were subject to

profound change at the time of British sovereignty while

aboriginal rights could more easily survive sovereignty. In

addition, the principle of extinguishment may operate

differently upon aboriginal ownership and jurisdiction on the

one hand and aboriginal rights on the other hand. Thus I shall

deal with aboriginal jurisdiction and ownership first, and

return to aboriginal rights later.

It will be useful to refer to what the plaintiffs have

alleged as the basis for their claims to jurisdiction and

ownership, and to comment briefly on each of them. These

allegations, from par. 57 of the Statement of Claim, are that

Part 15.

Extinguishment and Fiduciary Duties

594

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the plaintiffs and their ancestors have:

"(a) lived within the territory." This is a correct

statement as to village sites but presence is only one aspect of

aboriginal interests.

"(b) harvested, managed and conserved the resources within

the Territory." While there is no doubt the Indians harvested

their subsistence requirements from parts of the territory, it

is impossible to conclude from the evidence that these three

activities, to the extent they were practised, were anything

more than common sense subsistence practices, and are entirely

compatible with bare occupation for the purposes of subsistence.

The evidence does not establish either a policy for management

of the territory or concerted communal conservation.

"(c) governed themselves according to their laws." I have

no difficulty finding that the Gitksan and Wet'suwet'en people

developed tribal customs and practices relating to chiefs, clans

and marriage and things like that, but I am not persuaded their

ancestors practised universal or even uniform customs relating

to land outside the villages. They may well have developed a

priority system for their principal fishing sites at village

Part 15.

Extinguishment and Fiduciary Duties

595

__________________________________________________________________

locations.

"(d) governed the Territory according to their laws." I

have covered this item in the previous paragraph.

"(e) exercised their spiritual beliefs within the

territory." I expect that this is probably so, but the evidence

does not establish that these beliefs were necessarily common to

all the people or that they were universal practices. I suspect

customs were probably more widely followed.

"(f) maintained their institutions and exercised their

authority over the Territory through their institutions." The

plaintiffs have indeed maintained institutions but I am not

persuaded all their present institutions were recognized by

their ancestors. The evidence in this connection was quite

unsatisfactory because it was stated in such positive, universal

terms which did correspond to actual practice. I do not accept

the ancestors "on the ground" behaved as they did because of

"institutions." Rather I find they more likely acted as they

did because of survival instincts which varied from village to

village.

Part 15.

Extinguishment and Fiduciary Duties

596

__________________________________________________________________

"(g) protected and maintained the boundaries of the

Territory." This is unproven. There seemed to be so many

intrusions into the territory by other peoples that I cannot

conclude the plaintiffs' ancestors actually maintained their

boundaries or even their villages against invaders, although

they usually resumed occupation of specific locations for

obvious economic reasons. As recently as the 1890's Loring

found Indians in defensive, winter locations away from their

villages and I am completely uncertain the plaintiffs' ancestors

maintained any boundaries.

"(h) expressed their ownership of the Territory through

their regalia, adaawk, kun'gax and songs." I do not find these

items sufficiently site specific to assist the plaintiffs to

discharge their burden of proof.

"(i) confirmed their ownership of the Territory through

their crests and totem poles." There is considerable doubt

about the antiquity of crests and totem poles upon which I find

it unnecessary to express any opinion.

"(j) asserted their ownership of the Territory by specific

claim. This was not pressed in argument and does not assist the

Part 15.

Extinguishment and Fiduciary Duties

597

__________________________________________________________________

resolution of these issues.

"(k) confirmed their ownership of and jurisdiction over the

Territory through the Feast system." I do not question the

importance of the feast system in the social organization of

present-day Gitksan and I have no doubt it evolved from earlier

practices but I have considerable doubt about how important a

role it had in the management and allocation of lands,

particularly after the start of the fur trade. I think not

much, for reasons which I have discussed in other parts of this

judgement. Perhaps it will be sufficient to say that the

evidence about feasting is at least equivocal about its role in

the use or control of land outside the villages.

(i) Aboriginal Jurisdiction or Sovereignty

The plaintiffs adduced a great deal of evidence directed

towards establishing actual control of the territory. This

evidence consisted largely of historical reminiscences by elders

of events in their lifetime, and the recitation of the

declarations of their immediate, deceased ancestors. The

plaintiffs ask me to infer that the practices they describe were

a continuation of long standing, pre-existing aboriginal

ownership of and jurisdiction over territory.

Part 15.

Extinguishment and Fiduciary Duties

598

__________________________________________________________________

In fact, however, the plaintiffs seemed to have

considerable difficulty with this claim for aboriginal

sovereignty. Mr. Neil J. Sterritt is a Gitksan hereditary chief

and a former President of the Gitksan-Wet'suwet'en Tribal

Council. He is perhaps the most knowledgeable of the Gitksan

chiefs on their claim in this action as he was, until 1988,

involved directly with the preparation of the case for several

years.

In a brief submitted to the Penner Commission in 1983, Mr.

Sterritt submitted:

"Now, I want to talk to you about the

Indian government of the past...So I can

give you something maybe you can relate

to...to understand what Indian government

was for us in 1850 or even more recently...

I want to tell you that the feast hall was

our seat of government. It filled a

legislative and judiciary function. It

taught us how and why to govern...

The feast filled many functions. One of the

functions was settling disputes. It was a

place to do something about succession,

passing on what was being done, passing on

property, passing on title...

Remember, the feast hall is an oral

Part 15.

Extinguishment and Fiduciary Duties

599

__________________________________________________________________

tradition, not written. So how do you

record the official events to be sure there

is truth in the event and that the community

understands it? You call a feast..."

Brown's reports in the 1820's and Mr. Loring's reports,

starting in about 1890, hardly mention the feast, particularly

as a legislative body. In fact, one of Loring's principal

functions seemed to have been the settlement of disputes, and

the evidence strongly suggests that it was he who "governed" the

territory. I do not suggest the Indians have not always

participated in feasting practices, and I accept that it has

played, and still plays, a crucial role in the social

organization of these people. I am not persuaded that the feast

has ever operated as a legislative institution in the regulation

of land. There are simply too many instances of prominent

Chiefs who have conducted themselves other than in accordance

with the land law system for which the plaintiffs contend. I

shall discuss these inconsistencies when I come to deal with

internal boundaries in Part 17.

The plaintiffs' position on jurisdiction was described at

trial, somewhat tortuously, by Mr. Sterritt. Under cross-

Part 15.

Extinguishment and Fiduciary Duties

600

__________________________________________________________________

examination, he was asked about jurisdiction. He gave the

following evidence at vol. 134. p.8282:

MR. GOLDIE:

Q:

Mr. Sterritt, I'll put the question that I

put to you a minute ago, and with the assistance of my

friend's concern, you can answer it as best you see

fit and then we can go from there. Do the plaintiffs

claim that such laws, that is to say the laws and

customs of the Gitksan, supersede the laws of the

province if the two are in conflict?

A:

I don't know.

Q:

Is it your understanding that the plaintiffs

claim that such laws supersede the laws of the

province if the two are in conflict?

A:

Q;

I don't know.

Do you, as a plaintiff, assert that the laws

of the Gitksan supersede the laws of the province

if the two are in conflict?

A:

Q:

A:

Q:

That's fairly complex, and I'm unable to answer

that question.

You have no opinion or you have not given any

consideration to that at all?

No, not -- no, I haven't. Not detailed

consideration.

Well, whether detailed or otherwise, have you

given it sufficient consideration to answer the

question whether it is your position as a

plaintiff in this case that the laws of the

Gitksan and the customs of the Gitksan supersede

the laws of the Province of British Columbia if

the two are in conflict?

A:

No, I haven't.

Part 15.

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601

__________________________________________________________________

In Re-examination by Mr. Rush, Mr. Sterritt was asked this:

Q:

"Mr. Sterritt, you answered this, that

you did not know if the laws and

customs of the Gitksan supersede the

laws of the province if the two are in

conflict. Now, my question to you is

what is your understanding of the

extent of the application of Gitksan

and Wet'suwet'en laws?"

This led to an objection and some argument, but finally the

re-examination continued at Volume 142, p. 8987 L. 16:

MR. RUSH:

Q:

All right. Just let me reframe the question

again for you Mr. Sterritt. You indicated in

your evidence that you hadn't thought about the

question of whether the province could make laws

in respect of the resources of the Gitksan

people, and then, as you have just heard me

relate, you indicated that Canada and British

Columbia do not have sovereignty in the Gitksan

and Wet'suwet'en area. My question is can you

explain what you meant by the two statements?

A:

The Gitksan and the Wet'suwet'en have sovereignty

within that territory, within their territories.

The Gitksan-Wet'suwet'en have their laws within

those territories and the power to make laws

within those territories and the power to make

laws within those territories. And the --excuse

me -- the Gitksan and Wet'suwet'en laws prevail

over the laws of the province within that

territory -- within the territories.

Q:

A:

Is that what you meant by sovereignty or is that

what you mean by sovereignty?

Yes.

Part 15.

Extinguishment and Fiduciary Duties

602

__________________________________________________________________

THE Court: Well, Mr. Sterritt, what do you want me to

understand you mean when you say that the Gitksan

and Wet'suwet'en have sovereignty and the power to

make laws for the territories? Who makes the laws,

the chiefs, the Houses, the clans, the tribal council,

band councils, who?

THE WITNESS: The hereditary chiefs.

THE Court: Each for his own territory?

THE WITNESS: On behalf of the Houses.

THE Court: But by that answer do you presuppose the

possibility of 50 or 60 different laws within --

separate laws for each territory?

THE WITNESS: No, there are -- based on the past there have

been --

laws have evolved over

time for the Gitksan and Wet'suwet'en, and they -

- they are similar laws from one House to the

next. They apply throughout the territory. And

in a similar way laws passed by the Gitksan and

Wet'suwet'en would be common throughout the

territory. And there may be unusual

circumstances in a given area or situation, but

those would have to be dealt with as they arise,

but the laws would apply throughout the

territory.

THE Court: Well, what is the mechanism that you foresee

for

the making of these laws? Just

hereditary chiefs?

THE WITNESS:

The hereditary chiefs would have to --

ther

e

migh

t be

a

situ

atio

n

aris

Part 15.

Extinguishment and Fiduciary Duties

603

__________________________________________________________________

es

wher

e a

law

has

to

be

deve

lope

d.

In

the

--

they

migh

t

outl

ine

the

para

mete

rs

for

whic

h

they

wish

to

cons

ider

that

law,

but

in

the

pres

ent

time

s I

thin

k

they

woul

d

reso

Part 15.

Extinguishment and Fiduciary Duties

604

__________________________________________________________________

rt

to a

secr

etar

iat

of

advi

sors

,

who

woul

d

prov

ide

them

with

info

rmat

ion

base

d on

whic

h

they

woul

d

make

a

deci

sion

abou

t

the

law

that

--

that

is

to

be

inco

rpor

ated

.

THE Court: Well, if, for example, they decide that there

Part 15.

Extinguishment and Fiduciary Duties

605

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is

some very choice timber that they

want to log in the upper reaches of the Skeena,

would the Wet'suwet'en chiefs have a say in that?

THE WITNESS: Not necessarily, but I wouldn't exclude that

possibility. Similarly for the Gitksan

and the Wet'suwet'en territories. They wouldn't

necessarily, but it's possible that Gitksan and

Wet'suwet'en chiefs, hereditary chiefs, would all

be at the meeting in which they laid out the --

the general concerns and general goals and

objectives that they want a secretariat to work

on and to bring back and advise in terms of the

details that they could make a decision on.

THE Court: I take it there is no such mechanism in place at

the moment, no secretariat or

equivalent?

THE WITNESS: Well, no.

THE Court: Other than the tribal council?

THE WITNESS: The closest we come to it is the staff of the

tribal council. But there --

there is a recognition of a need for such a

group, and what form that takes officially or

otherwise is -- you know -- has not been

discussed in detail, but it is such a -- there is

a necessity based on all of the information

coming in to -- that affects a given goal or

direction or circumstance, that there is a need

for this information and advice to come to the

hereditary chiefs for them to weigh in terms of

their own positions and their own -- their own

authority and in relation to their Houses?

THE Court: Mr. Sterritt, so there will be no unnecessary

misunderstanding, when you say the

staff of the tribal council, do you exclude the

elected members when you say staff? Some people

might say staff means the paid employees. Others

might say it includes the elected members. What

did you intend by saying staff?

Part 15.

Extinguishment and Fiduciary Duties

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__________________________________________________________________

THE WITNESS:

Well, I should point out, I guess, to a

certain extent how it worked while I

was president. The hereditary chiefs may have

had an issue or a problem that they were working

on, and they outlined what they wanted done, and

then as president either I or the executive

director took that to the people that were

available to us within the tribal council staff

and worked out information, took that information

back to the hereditary chiefs, and they reviewed

it and -- but it doesn't mean that there would be

a tribal council. There could be a secretariat

of some other form that would fulfil that

function in a -- in a way to be defined yet. But

that would be the objective of that secretariat.

THE Court: All right. Thank you.

Q:

Now, Mr. Sterritt, in what you have just

described,in the view that you have just

expressed, the secretariat, what relationship

would that have, if any, to the feast?

A.

The -- well, there are feasts right now for a

number of purposes, and we've talked about what

they are. There are also feasts in which the

hereditary chiefs could meet as similar to

meeting in -- in parliament, where they would --

it would not be a feast necessarily put on by a

House. It could be a feast put on by a number of

hereditary chiefs to lay out this direction, to

lay out what it is they're concerned about and

how it would go forward. The Houses themselves

who are directly affected, if it was their

territory in their area, would have input into

that and advise the hereditary chiefs about their

concerns and their needs, and then they would set

out a direction that would go to a secretariat.

It would then go back through the same process

and probably through the House to the hereditary

chiefs where they gather. Those -- that's a

possibility. It's not something that's fixed,

but it's one consideration that we've given. But

the House that is directly affected in a given

Part 15.

Extinguishment and Fiduciary Duties

607

__________________________________________________________________

area would play an important role in terms of how

they see the future of their territory and how it

relates to the other territories ...

THE WITNESS:

Maybe I should, just before we do break, go

back to one thing on that other. If a

law was applied by Canada or the province in that

area, say, then the House and -- I don't know

whether I should use the word assembly of chiefs,

but where the chiefs meet would have a veto power

over any other laws that may be applied or

considered. They could stop that because of the

decisions that the hereditary chiefs and their

goals for that given House territory in a given

area.

THE Court: When you say laws of Canada, you mean laws

of Canada or British Columbia or

just Canada?

THE WITNESS: Yes, either or both...,

It is apparent that on this issue the plaintiffs' thrust is

directed not to historical practices and customs, but rather to

undefined, unspecific forms of government which some of the

chiefs are just beginning to think about. With respect, they

have put the cart before the horse. This remedy could only be

based on pre-contact practices, not upon the political wishes of

a people seeking to establish a new form of government.

In argument Mr. Grant put the plaintiffs' case on

jurisdiction as follows at vol. 337, p.p. 26421-26425:

Part 15.

Extinguishment and Fiduciary Duties

608

__________________________________________________________________

"Now, we are saying that the provincial laws do

not apply to the plaintiffs and their land only

insofar as they are inconsistent or repugnant with the

ownership and jurisdiction of the plaintiffs. The

laws of the Province do apply to non-Indians within

the territory insofar as they are not inconsistent

with the plaintiffs' ownership and jurisdiction.

And I'm going to in the course of that

articulation I'll come back to that, but in my

argument when we deal with the jurisdiction as it

relates to issues not connected to land and resources

I'm coming to, the second arm of it though was a

question raised whether the provincial laws have

application to Gitksan and Wet'suwet'en people who are

residing outside the boundaries. And, yes, they do.

The provincial laws would apply outside the boundaries

to Gitksan and Wet'suwet'en people. And the

declarations aim only at the application of provincial

laws within the territorial boundaries....

THE Court: Well, what you're really saying is

you want jurisdiction over matters of a local or

private nature, civil rights and matters of a private

nature within the territories. You want the same

rights within the territory the Province has under

Section 92, don't you?

MR. GRANT: Vis-a-vis the plaintiffs, not vis-a-

vis non-Indian people in the territory. The

provincial laws would still apply to non-Indians. But

let me -- I'd like to --

THE Court: Well, then you say what I have just

stated is far too broad?

MR. GRANT: Well, if you say what I'm seeking is

-- what we are seeking is jurisdiction -- is to move

the Section 92 from the Province to the plaintiffs for

all purposes within the territory for anybody that

happens to be there, yes, that is broader than what

we're seeking....

Now, the intent of the declaration of the right

is intended to restrict the conduct of the provincial

defendant from impeding the aboriginal right to govern

Part 15.

Extinguishment and Fiduciary Duties

609

__________________________________________________________________

themselves....

A further example with respect to the education

system could be considered if a Gitksan or

Wet'suwet'en House, and I say House or House member.

It could be a member of a House. Okay. It doesn't

have to be the whole House, of course. Decided to

withdraw their children from the school and educate

them on the territory. They decided this was the

appropriate way consistent with traditional training

to take them out of school. Such a situation would be

in conflict with the requirement that the children

must attend school for a certain number of days of the

year. The effect of the order of a declaration of

self-government made by this Court would be that if

the provincial defendant prosecuted that family or

those families for violation of the School Act they

could raise a defence they were educating their

children in accordance with their aboriginal right of

self-determination regarding education....

The onus in such an application by the Gitksan

would be to establish the right to educate their

children outside the school system was part of the

aboriginal self-government. That issue would have to

be decided on a specific basis with the specific

facts.

But the effect of the order we're asking your

lordship to make would be that the declaration of the

recognition of self-government as one of the

aboriginal rights of the Gitksan and Wet'suwet'en,

leads to the result that the plaintiffs or petitioners

once they demonstrated that the alternative education

formed an aspect of self-government in particular

circumstances, the provincial law would not prevail.

Once they overcame that hurdle on the particular facts

on the particular case then the implication of the

order we're seeking from this Court would apply.

But this is the important point. Until the

Gitksan and Wet'suwet'en exercise their authority in

relation to education in a manner which conflicts with

the provincial School Act, that act continues to

apply. In other words, there is no point in

Part 15.

Extinguishment and Fiduciary Duties

610

__________________________________________________________________

theorizing about multiple challenges when there is no

conflict....

Just as the Province has been constrained from

passing legislation contrary to the Charter of Rights

and Freedoms, so is the Province constrained from

passing legislation contrary to the aboriginal rights

of the Gitksan and Wet'suwet'en to govern themselves

and their people. I've already reiterated that the

context of each -- analysis of each legislation and

consideration they contravene the rights of the

plaintiffs is an issue that can only be considered in

the context of that particular piece of legislation.

In fact, my lord, it would still not resolve the issue

if every section of every statute of the Province in

existence today was analyzed and said this conflicts,

this doesn't conflict."

Mr. Grant was obviously describing a new theory of

government -- a rationalization -- unrelated in any way to

aboriginal practices. I have never heard of it before, and it

is certainly not mentioned in any authorities binding upon this

Court.

Part 15.

Extinguishment and Fiduciary Duties

611

__________________________________________________________________

It became obvious during the course of the trial that what

the Gitksan and Wet'suwet'en witness describe as law is really a

most uncertain and highly flexible set of customs which are

frequently not followed by the Indians themselves. I heard many

instances of prominent Chiefs conducting themselves other than

in accordance with these rules, such as logging or trapping on

another chiefs territory although there always seemed to be an

aboriginal exception which made almost any departure from

aboriginal rules permissable. In my judgment, these rules are

so flexible and uncertain that they cannot be classified as

laws.

For example, I was furnished with an analysis of the

evidence of a number of witnesses who gave different versions of

the "law" alleged to govern the use of a father's House

territory. This was called "amnigwootxw" by the Gitksan and

"neg'edeld'es" by the Wet'suwet'en. This is what some of the

witnesses said about this alleged "law:"

(a) "Amnigwootxw is when the son travels with

his father on the territory, he will be with

his father until his father dies. But after

his father dies he does not say he owns this

territory. He leaves and if he wants to go

back there he has to get permission from the

head chief of that territory before he goes

Part 15.

Extinguishment and Fiduciary Duties

612

__________________________________________________________________

back on to the territory where him and his

father were before": Solomon Marsden,

Tr.94, p. 5948, ll. 22-29.

(b) Neg'edeld'es rights extend to

grandchildren: Henry Alfred, Tr.51, p. 3130,

l.45 to p.3131, l.7.

(c) Neg'edeld'es rights last during the lifetime

of the father only: Henry Alfred, Tr.51,

p.3130, ll. 39-44.

(d) Neg'edeld'es rights last forever: Elsie

Quaw, Ex.673A, p.19, ll.9-17.

(e) Neg'edeld'es rights can be extended beyond

the life of the father but only with

permission: Alfred Joseph, Tr.24, p.1597,

l.29 to p.1598, l.7.

(f) Neg'edeld'es can be extended without

permission, at least until the "name is

taken up": Warner Williams, Ex.677A, p.36,

ll.31-42.

(g) It is the son's privilege to trap on his

father's land, even where the son did not

ask permission: Vernon Smith, Tr.91, p.5800,

l.46 to p.5801, l.11 and p.5813, ll.35-41.

(h) Amnigwootxw can only be extended by

permission, but permission cannot be denied.

"... this person could not be refused if he

goes to the chief and asks permission. He

would not be refused, because when his

father dies all the deceased person's

children are taken by the Wil' na t'ahl as

their own children and this is why they

don't refuse them to go on to the

territory": Solomon Marsden, Tr.94, p.5948,

ll.39-44. See also Art Mathews Jr., Tr.77,

p. 4777, ll.27-32.

(i) Sarah Layton (Knedebeas) and her grandmother

refused to give Roy Morris permission to

Part 15.

Extinguishment and Fiduciary Duties

613

__________________________________________________________________

trap on Knedebeas' territory. (But Mr.

Morris continued to trap there).

(j) Neg'edeld'es rights can be acquired to the

mother-in-law's territory: Stanley Morris,

Ex.669-1-A, p.5,l.43 to p.6, l.11.

(k) Neg'edeld'es gives one rights to use a

spouse's territory: Elsie Quaw, Ex. 673A,

p.18, l.46 to p.19, l.8.

(l) Neg'edeld'es rights are limited:

"...like

my children would be allowed to go there as

Neg'edeld'es, but they don't inherit the

territory like on the mother's side": Dan

Mitchell, Tr.60, p.3644, ll.43-46.

(m) Neg'edeld'es rights are quite extensive.

Johnny David claimed the rights were

equivalent to caretaker rights, and

accordingly he had the right to choose the

successor (Tr.156, p.10009, ll.8-32 and Ex.

74-D, p.44) and to challenge the head

chief's (according to Ex. 646-9B) authority

over the territory. "Leonard George is

Smogelgem and also I can't agree with him

taking the territory, but he can utilize

it." (Tr.156, p. 10009, ll. 43-45)

(n) The right may extend to the territory of the

father's house or clan:

Henry Alfred,

Tr.51, p.3130, ll.39-44.

It is my conclusion that Gitksan and Wet'suwet'en laws and

cust

oms

are

Part 15.

Extinguishment and Fiduciary Duties

614

__________________________________________________________________

not

suff

icie

ntly

cert

ain

to

perm

it a

find

ing

that

they

or

thei

r

ance

stor

s

gove

rned

the

terr

Part 15.

Extinguishment and Fiduciary Duties

615

__________________________________________________________________

itor

y

acco

rdin

g to

abor

igin

al

laws

even

thou

gh

some

Indi

ans

may

well

have

chos

en

to

foll

ow

Part 15.

Extinguishment and Fiduciary Duties

616

__________________________________________________________________

loca

l

cust

oms

when

it

was

conv

enie

nt

to

do

so.

Doing the best I can with this evidence, and I have tried

to take into consideration all that I heard, I conclude that

prior to British sovereignty the ancestors of the plaintiffs

lived in their villages at strategic locations alongside the

Skeena and Bulkley Rivers and they probably organized themselves

into clans and houses for social purposes, but they had little

need for what we would call laws of general application. While

peer pressure in the form of customs may have governed the

Part 15.

Extinguishment and Fiduciary Duties

617

__________________________________________________________________

villages, there was, in my judgment, no difference between

aboriginal sovereignty or jurisdiction in the empty lands of the

territory on one hand, and occupation or possession of the same

empty lands for aboriginal sustenance on the other hand.

I also incorporate into this section the conclusions I

expressed earlier regarding the relationship between land use

and fur trapping which only started after contact. Before that

time there was no reason for the plaintiffs' ancestors,

individually or communally, to purport to govern the wilderness

beyond the areas surrounding their villages even though they may

have used such areas from time to time for aboriginal purposes.

(ii) Aboriginal Ownership

I digress to discuss the question of village sites.

The distinction between village sites and other lands was

recognized in one form or another in the Report of the

Parliamentary Committee inquiring into New Zealand, by Herman

Merivale, Governor Douglas, Begbie J. and even Mr. Trutch. In

fact, the legislation of the Colony exempted village sites or

Part 15.

Extinguishment and Fiduciary Duties

618

__________________________________________________________________

settlements from pre-emption and they were protected from all

other intrusions. This distinction was probably the reason for

the creation of reserves.

In both the colony and province of British Columbia it was

intended that village sites would be included within reserves

and permanently set apart for the use of Indians. I know of no

occupied village in the territory that was not included within a

reserve except Gitanka'at and Gitangasx which are now abandoned,

and may have been abandoned at the time reserves were

established. I recall no evidence of when they were deserted.

There are small reserves in the area of Gitanka'at. Both of

these locations should have been designated as reserves in the

1890's if they were then occupied as villages.

I do not think it is necessary to enquire into the legal

status of Indian reserves. Indian interest in reserves is now

statutory and I have no jurisdiction to adjust reserves. In

fact, it was not argued that I should.

It seems clear that some hunting grounds adjacent to

villages were not included in reserves notwithstanding the

instructions given to the reserve commissioners both in colonial

Part 15.

Extinguishment and Fiduciary Duties

619

__________________________________________________________________

and provincial times. It is regrettable that this question was

not resolved at the time of the McKenna-McBride Commission which

did have jurisdiction to adjust reserves. It is equally

regrettable that the Indians themselves did not take more

effective steps to secure larger reserves if they really wished

to have larger tracts of land allotted to them.

Even if I had jurisdiction to adjust reserves, the parties

advanced no evidence or argument for special status for any

specific lands surrounding Indian villages although it seems

obvious some reserves should be larger than they are. It was

mentioned at trial that all Indian reserves in the territory

total only about 45 square miles although it is significant that

many of them are strategically located, and most of the fishing

sites identified by the plaintiffs are within reserves.

I do not, therefore, propose to make any special order

regarding village sites, or surrounding hunting lands. They are

either already included in Indian reserves or they must be

considered on the same footing as the other lands of the

territory. No doubt the province will wish to correct this

historical anomaly, but not necessarily by "adjusting" reserves.

I say this because there may be better ways to adjust this

Part 15.

Extinguishment and Fiduciary Duties

620

__________________________________________________________________

grievance.

In my judgement, what happened on the ground before British

sovereignty was equally consistent with many forms of occupation

or possession for aboriginal use as for ownership. It is true

that trader Brown referred to some Indians as men of property

and other similar terms but that is equivocal. He also suggested

exclusive use of some undefined land was restricted to trapping

for beaver.

In this century, long-time settlers such as Mr. Shelford

were, until very recently, unaware of any claim to aboriginal

ownership or control of the territory or of any claim to an

interest inconsistent with the activities of himself and other

white settlers. When there were disputes with settlers or

governments, of which there were not many, the Indians often

accepted solutions which denied aboriginal ownership. Apart

from village sites, and political statements which have

frequently been repeated by Indians, I cannot infer from the

evidence that the Indians possessed or controlled any part of

the territory, other than for village sites and aboriginal use

in a way that would justify a declaration equivalent to

ownership. Further, I find that, except for occasional

Part 15.

Extinguishment and Fiduciary Duties

621

__________________________________________________________________

political statements, the plaintiffs in the post-sovereignty

period seldom conducted themselves as if they believed they were

owners of such vast areas.

I was also treated to extensive arguments about the legal

ingredients of ownership. Most of these authorities were

American cases which were decided in a totally different legal

and factual context from the situation in British Columbia and

they do not overcome the binding authority of St. Catherines

Milling about the nature of non-proprietary aboriginal

interests. It seems to me, with respect, that the Privy Council

got it right when it described the aboriginal interests as a

personal right rather than a proprietary one.

In this respect, I note the Privy Council had an

opportunity to comment on this question again in 1921, more than

30 years after St. Catherines Milling, in Amodu Tijani v. The

Secretary, Southern Nigeria, [1921] 2 A.C. 399, particularly at

p. 404 where their Lordships continued to refer to "native

title" as a "possessory title" and as a "usufruct" with variable

customs in different countries.

I am satisfied that at the date of British sovereignty the

Part 15.

Extinguishment and Fiduciary Duties

622

__________________________________________________________________

plaintiffs ancestors were living in their villages on the great

rivers in a form of communal society, occupying or possessing

fishing sites and the adjacent lands as their ancestors had done

for the purpose of hunting and gathering whatever they required

for sustenance. They governed themselves in their villages and

immediately surrounding areas to the extent necessary for

communal living, but it cannot be said that they owned or

governed such vast and almost inaccessible tracts of land in any

sense that would be recognized by the law. In no sense could it

be said that Gitksan or Wet'suwet'en law or title followed (or

governed) these people except in a social sense to the far

reaches of the territory.

To put it differently, I have no doubt that another people,

such as the Nishga or Talthan, if they wished, could have

settled at some location away from the Gitksan or Wet'suwet'en

villages and no law known to me would have required them to

depart.

While these are my findings, I am prepared to assume for

the purposes of this part of my judgment that, in the legal and

jurisdictional vacuum which existed prior to British

sovereignty, the organization of these people was the only form

Part 15.

Extinguishment and Fiduciary Duties

623

__________________________________________________________________

of ownership and jurisdiction which existed in the areas of the

villages and surrounding territories. I would not make the same

finding with respect to the rest of the territory, even to the

areas over which I believe the ancestors of the plaintiffs

roamed for sustenance purposes.

(3) The Effect of British Sovereignty

Upon the Crown through the Imperial Parliament establishing

the Colony of British Columbia in 1858, it authorized the

appointment of a Governor, made arrangements for a Legislative

Council, imposed English law, and embarked upon the construction

of a legal regime for the ownership and governance of the

Colony. This, in my view, is what sovereignty is all about, but

Professor Dicey has a more complete definition in his Law of the

Constitution, (10th edition), 1959 at p. 39:

"The principle of Parliamentary sovereignty

means neither more nor less than this,

namely, that Parliament thus defined has,

under the English constitution, the right to

make or unmake any law whatever; and,

further, that no person or body is

recognised by the law of England as having a

right to override or set aside the

legislation of Parliament. "

Part 15.

Extinguishment and Fiduciary Duties

624

__________________________________________________________________

A law may, for our present purpose, be

defined "any rule which will be enforced by

the courts". The principle then of

Parliamentary sovereignty may, looked at

from its positive side, be thus described:

Any Act of Parliament, or any part of an Act

of Parliament, which makes a new law, or

repeals or modifies an existing law, will be

obeyed by the courts. The same principle,

looked at from its negative side, may be

thus stated: There is no person or body of

persons who can, under the English

Constitution, make rules which override or

derogate from an Act of Parliament or which

(to express the same thing in other words)

will be enforced by the courts in

contravention of an Act of Parliament. (my

emphasis)

This, in my view, is what the Court meant in Sparrow when

it said, as quoted above:

Part 15.

Extinguishment and Fiduciary Duties

625

__________________________________________________________________

"...there was from the outset never any

doubt that sovereignty and legislative power

and indeed the underlying title to such

lands vested in the Crown..."

Although not binding upon me but deserving deference, is

the opinion of the Privy Council in Re Southern Rhodesia, [1919]

A.C. 211, at p. 224:

"... According to the argument the natives

before 1893 were owners of the whole of

these vast regions in such a sense that,

without their permission or that of their

King and trustee, no traveller, still less a

settler, could so much as enter without

committing a trespass. If so, the

maintenance of their rights was fatally

inconsistent with white settlement of the

country, and yet white settlement was the

object of the whole forward movement,

pioneered by the Company and controlled by

the Crown, and that object was successfully

accomplished, with the result that the

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aboriginal system gave place to another

prescribed by the Order in Council."

That, in my view, is what happened in the territory, that

is the aboriginal system, to the extent it constituted

aboriginal jurisdiction of sovereignty, or ownership apart from

occupation for residence and use, gave way to an new colonial

form of government which the law recognizes to the exclusion of

all other systems. This process was described in Attorney

General for British Columbia v. Attorney General for Canada,

[1906] A.C. 552, (J.C.P.C.), (the Deadman's Island Case), where

it was suggested that matters had begun in the colony:

"...by the indiscriminate squatting of

adventurous settlers in a wild country.

The initiation of the reign of law may be

taken to date from the advent of Governor

Douglas in 1858. By an Act of Parliament

passed in that year British Columbia was

erected into a separate territory, and power

was given to Her Majesty by Order in Council

to appoint a governor and make such

provisions for the laws and administration

of the new Colony as to her should seem fit.

"Accordingly Sir james Douglas was in 1858

appointed governor by letters patent, and an

Order in Council was made defining his

powers and duties. As to his powers, it may

be said at once that they were absolutely

autocratic; he represented the Crown in

every particular, and was, in fact, the law.

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At the same time careful despatches were

sent to him by the Colonial minister of the

day laying down in explicit terms the

methods of administration which it was

desired he should follow."

After that, aboriginal customs, to the extent they could be

described as laws before the creation of the colony became

customs which depended upon the willingness of the community to

live and abide by them, but they ceased to have any force, as

laws, within the colony.

Then, at the time of Union of the colony with Canada in

1871, all legislative jurisdiction was divided between Canada

and the province and there was no room for aboriginal

jurisdiction or sovereignty which would be recognized by the law

or the courts.

In 1888 the Privy Council in St Catherines Milling, decided that

aboriginal interests in Ontario existed only at the pleasure of

the Crown, and the same was recognized for British Columbia in

Calder. Rights which are subject to extinguishment can hardly

be absolute, as jurisdiction and ownership would be expected to

be.

Even after the addition of s. 35 of the Constitution Act,

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1982, which recognized aboriginal rights, it was held in

Sparrow, at p. 1109 that:

"...We find that the words 'recognition

and affirmation' incorporate the fiduciary

relationship referred to earlier and so

import some restraint upon the exercise of

sovereign power. Rights that are recognized

and affirmed are not absolute. Federal

legislative powers continue, including, of

course, the right to legislate with respect

to Indians pursuant to s. 91 (24)..."

(my emphasis)

If there was aboriginal sovereignty it would be valid

against Federal as well as provincial jurisdiction, but it

clearly is not.

(4) Conclusions on Jurisdiction and Ownership

After much consideration, I am driven to find that

jurisdiction and sovereignty are such absolute concepts that

there is no half-way house. No Court has authority to make

grants of constitutional jurisdiction in the face of such clear

and comprehensive statutory and constitutional provisions. The

very fact that the plaintiffs recognize the underlying title of

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the Crown precludes them from denying the sovereignty that

created such title.

I fully understand the plaintiffs' wishful belief that

their distinctive history entitles them to demand some form of

constitutional independence from British Columbia. But neither

this nor any Court has the jurisdiction to undo the

establishment of the Colony, Confederation, or the

constitutional arrangements which are now in place. Separate

sovereignty or legislative authority, as a matter of law, is

beyond the authority of any Court to award.

I also understand the reasons why some aboriginal persons

have spoken in strident and exaggerated terms about aboriginal

ownership and sovereignty, and why they have asserted exemption

from the laws of Canada and the province.

They often refer to the fact they were never conquered by

military force. With respect, that is not a relevant

consideration at this late date if it ever was. Similarly, the

absence of treaties does not change the fact that Canadian and

British Columbian sovereignty is a legal reality recognized both

by the law of nations and by this Court.

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The plaintiffs must understand that Canada and the

provinces, as a matter of law, are sovereign, each in their own

jurisdictions, which makes it impossible for aboriginal peoples

unilaterally to achieve the independent or separate status some

of them seek. In the language of the street, and in the

contemplation of the law, the plaintiffs are subject to the same

law and the same Constitution as everyone else. The

Constitution can only be changed in the manner provided by the

Constitution itself.

This is not to say that some form of self-government for

aboriginal persons cannot be arranged. That, however, is

possible only with the agreement of both levels of government

under appropriate, lawful legislation. It cannot be achieved by

litigation.

In view of the foregoing, it is not necessary for me to say

anything about the absence of representation by Gitksan or

Wet'suwet'en persons (or children or persons under legal

disability) who may not wish to have aboriginal jurisdiction and

authority imposed upon them.

As to ownership, I have concluded that the interest of the

Part 15.

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plaintiffs' ancestors, at the time of British sovereignty,

except for village sites, was nothing more than the right to

live on and use the land for aboriginal purposes and I shall

consider that question more fully in this next section of this

Part.

It follows, therefore, that the plaintiffs' claims for

aboriginal jurisdiction or sovereignty over, and ownership of,

the territory must be dismissed.

(5) Aboriginal Rights

As already mentioned, the plaintiffs' claims for aboriginal

rights must depend upon indefinite, long aboriginal use of

specific territory before sovereignty.

(a) The Requirements for Aboriginal Rights

It will be convenient to repeat the requirements for

aboriginal rights described by Mahoney J. in the Baker Lake case

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at pp. 557-558. They are:

"l. That they [plaintiffs] and their

ancestors were members of an organized

society.

2. That the organized society occupied the

specific territory over which they assert

the aboriginal title.

3. That the occupation was to the exclusion

of other organized societies.

4. That the occupation was an established fact at the

time sovereignty was asserted by England."

I am uncertain about the requirement for exclusivity. Such

would certainly be essential for ownership and jurisdiction but

I suspect there are areas where more than one aboriginal group

may have sustenance rights, such as in the areas between the

closely related Wet'suwet'en and Babine peoples at Bear Lake and

along the Babine River, and possibly in other peripheral areas.

I cannot accept that two aboriginal peoples who both used land

for sustenance would not each have aboriginal rights to continue

doing so although they would not be exclusive rights.

I also think a further requirement must be added to the

tests formulated by Mahoney J. What the law protects is not

bare presence or all activities, but rather aboriginal practices

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carried on within an aboriginal society in a specific territory

for an indefinite or long, long time. This relates to what I

have just said about commercial trapping.

Subject to the above and to the other considerations

mentioned in this judgment, I am satisfied that the tests stated

by Mahoney J. accord generally with the authorities and I am

content to adopt them. I shall discuss them individually, and I

shall add some further comments.

(i)

Ancestors in an organized society

I suspect the requirement of social organization comes from

dicta in cases such as Calder where Judson J. referred to the

Nishga as "organized in societies and occupying the land as

their forefathers had done for centuries..."

If it were necessary to find that the Gitksan and

Wet'suwet'en, as aboriginal peoples rather than villagers had

institutions and governed themselves, then I doubt if this

requirement has been satisfied. I have already discussed this

earlier in this Part.

Part 15.

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I think, however, there is much wisdom in the dictum of the

Privy Council in Re Southern Rhodesia, [1919] A.C. 211 at pp.

233-234,

"The estimation of the rights of

aboriginal tribes is always inherently

difficult. Some tribes are so low in the

scale of social organization that their

usages and conceptions of rights and duties

are not to be reconciled with the

institutions or the legal ideas of civilized

society. Such a gulf cannot be bridged. It

would be idle to impute such people some

shadow of the rights known to our law and

then to transmute it into the substance of

transferable rights of property as we know

them. In the present case it would make

each and every person by a fictional

inheritance a landed proprietor 'richer than

all his tribe.' On the other hand, there

are indigenous peoples whose legal

conceptions, though differently developed,

are hardly less precise than our own. When

Part 15.

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635

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once they have been studied and understood

they are no less enforceable than rights

arising under English law. Between the two

there is a wide tract of much ethnological

interest, but the position of the natives of

Southern Rhodesia within it is very

uncertain; clearly they approximate rather

to the lower than to the higher limit."

I am quite unable to say that there was much in the way of

pre-contact social organization among the Gitksan or

Wet'suwet'en simply because there is so little reliable

evidence. Based upon Re Southern Rhodesia, however, I find that

no particular level of sophistication should be required. I

adopt the view of Mahoney J. at p. 559 of Baker Lake that

"...the relative sophistication of the

organization of any society will be a

function of the needs of its members, [and]

the demands they make of it."

Assuming Gitksan and Wet'suwet'en village customs furnished

whatever social organization the law requires, I accept the

Part 15.

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636

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opinion of Professor Ray that the minimal social organization

described by trader Brown at Babine Lake in the 1820's could not

have been borrowed or developed just since contact. This, and

the further facts that there were villages in the vicinity of

Kisgegas and reports of larger Skeena villages to the west, and

the probability I have already expressed that some of the

ancestors of the plaintiffs have been present in the territory

for a long, long time, persuade me this requirement has been

satisfied.

(ii) The occupation of specific territory

I shall deal with this question in greater detail later but

for the moment it will be sufficient to say that there is

evidence of Indians living in villages at important locations in

the territory. I infer they would have used surrounding lands,

and other lands further away as may have been required. This is

sufficient to satisfy this part of the test for the areas

actually used.

(iii) The Exclusion of Other Organized Societies

While I have the view that the Gitksan and Wet'suwet'en

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were unable to keep invaders or traders out of their territory,

there is no reason to believe that other organized societies

established themselves in the heartland of the territory along

the great rivers on any permanent basis, and I think this

requirement is satisfied for areas actually used.

(iv) Occupation Established at Time British Sovereignty

Asserted

I have already decided there is no practical difference in

this case between the date of contact and the date of

sovereignty. For the purposes of this test, I find some Gitksan

and Wet'suwet'en had been present in their villages and occupied

surrounding areas for aboriginal purposes for an uncertain, long

time before British Sovereignty.

(v) Long Time Aboriginal Practices

This brings me to the additional test for aboriginal rights

which I have added to those mentioned by Mahoney J. in Baker

Lake. I have already discussed this generally, and I have

concluded that the aboriginal activities recognized and

Part 15.

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protected by law are those which were carried on by the

plaintiffs' ancestors at the time of contact or European

influence and which were still being carried on at the date of

sovereignty, although by then with modern techniques. I have

already decided that trapping for the fur trade was not an

aboriginal activity.

(b) The Nature of Aboriginal Rights

(i) Generally

Having decided that aboriginal rights are residential and

sustenance gathering rights, it is unnecessary and probably

unwise, to attempt a precise definition. This was attempted in

Attorney-General of Ontario v. Bear Island Foundation (1984) 15

D.L.R. (4th) 321 where Steel J., for the purposes of that case,

offered the following at p.360:

"Bearing in mind the decisions in the

Calder and Smith cases, I find that the

aboriginal rights in these lands existing at

the relevant date are as follows: To hunt

all animals for food, clothing, personal use

Part 15.

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and adornment, to exclusively trap fur

bearers, which right was enjoyed by the

individual family, and to sell the furs, to

fish, use herbs, berries, maple

other natural products for food,

sugar and

medicines and dyes, to use ochre and

vermilion for dyes, to use turp, quartzite

for tools and other implements but not

extensive mining, to use clay for pottery,

pipes and ornaments, to use trees, bark and

furs for housing but not

lumbering, and to

use trees and bark for fires, canoes,

sleighs and snowshoes. All of the above are

traditional uses for basic survival and

personal ornamentation existing as of 1763."

I quote the foregoing only as an example of what was held

to be included as generic "aboriginal rights" in that case. I

do not accept such definition except as an example, firstly

because 1763 is not an appropriate date for determining what was

an aboriginal right in this case, and because I respectfully

disagree that trapping fur bearing animals for the sale of furs

was ever an aboriginal activity in the territory.

Part 15.

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In my view, the aboriginal rights of the plaintiffs'

ancestors included all those sustenance practices and the

gathering of all those products of the land and waters of the

territory I shall define which they practised and used before

exposure to European civilization (or sovereignty) for

subsistence or survival, including wood, food and clothing, and

for their culture or ornamentation -- in short, what their

ancestors obtained from the land and waters for their aboriginal

life.

As I have said, the date of British sovereignty for this

purpose is equivalent to the date of contact because although

modern techniques must clearly be recognized, the nature and

extent of aboriginal rights did not change in that period.

(ii) Commercial Activities

This requires me to consider the comments of the Supreme

Court of Canada on this question in Sparrow where the Court

declined to discuss the question of commercial aboriginal

rights. At p. 20 it said:

"In the Courts below, the case at bar was

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641

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not presented on the footing of an

aboriginal right to fish for commercial or

livelihood purposes. Rather, the focus was

and continues to be on the validity of a net

length restriction affecting the appellant's

food fishing licence. We therefore adopt

the Court of Appeal's characterization of

the right for the purpose of this appeal,

and confine our reasons to the meaning of

the constitutional recognition and

affirmation of the existing aboriginal right

to fish for food and social and ceremonial

purposes."

While the Supreme Court of Canada will ultimately be called

upon finally to settle this important question, I am not able to

avoid expressing an early judicial opinion. In my view the

purpose of aboriginal rights was to sustain existence in an

aboriginal society, that is to hunt and fish and collect the

products of the land and waters for the survival of the communal

group. There would undoubtedly be some bartering but that would

be in sustenance products likewise obtained by aboriginal

practices.

Part 15.

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As I understand the authorities, subject to what I shall

say later in this judgment, and subject to the requirements I

have already described, the law has protected the right of

aboriginal groups to continue to use "traditional" lands for

these purposes.

In my view, using fishing as an example, it would be

contrary to the rational evolution of aboriginal rights, and

contrary to principle, to enhance an aboriginal right by

providing priority over all other users (after justified

conservation), and then to enlarge or extend the prioritized

aboriginal right to commercial activities when many aboriginals

are already employed in this industry. It would be foolish to

suggest, for example, that the prioritized aboriginal rights of

an Indian participating in the commercial fishing industry would

be exempt from the regulations which govern non-Indian

licensees.

I digress from this discussion of aboriginal rights to

recognize that Sparrow was written in the context of tidal

fishing, while the plaintiffs, particularly the Gitksan, are

most anxious to establish what they call a commercial, inland

fishery at Gitwangak, and possibly at other Skeena locations.

Part 15.

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As I understand the evidence, particularly that of Mr. Glen

Williams, salmon stocks have risen to levels not seen since the

early years of this century. This is because of salmon spawning

enhancement programs in the Babine system. As a result, Mr.

Williams says upwards of one million salmon are unable some

years to enter the spawning streams. Some of the plaintiffs

wish to take quantities of salmon from the Skeena River at

Gitwangak or other locations for commercial purposes in order to

raise much needed funds for Band purposes.

Not having heard the other side of this question from the

officials of the Department of Oceans and Fisheries (Canada), I

am unable to express any views on the merits of this proposal.

In my view, however, such an enterprise could not be conducted

as an aboriginal right and would have to be arranged, if at all,

by agreement with the Crown.

There is another reason for my conclusion that land-based

commercial enterprise cannot be regarded as an aboriginal right.

From the beginning of the colony, Indians have had equal rights

with everyone else to use the unoccupied land of the Crown.

This user right has not been restricted to "traditional" lands

either for aboriginal sustenance or for commercial purposes

Part 15.

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pursuant to the general law. Now, as pointed out in Sparrow, we

live in a society which is becoming "increasingly more complex,

inter-dependent and sophisticated."

Many aboriginals are directly engaged in the wage economy,

and a few -- not enough, but some -- participate as

entrepreneurs. Mr. Pete Muldoe, a prominent Gitksan hereditary

chief, has engaged in logging and sawmilling in the territory,

as has the Moricetown Band Council. The aboriginal communities,

like the provincial community, have their economic successes and

failures.

Notwithstanding the complexity of mixed land use in the

province, I think aboriginal rights, to the extent recognized by

law, have always been sustenance user rights practised for a

very long time in a specific territory. These rights do not

include commercial activities, even those related to land or

water resource gathering, except in compliance with the general

law of the province.

(iii) Exclusivity

Aboriginal rights have never been absolute. As long ago as

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Johnson v. M'Intosh, and as confirmed by the Privy Council in

St. Catherines Milling Co., in the absence of contract or

treaty, such rights have been recognized to exist merely at the

Crown's pleasure. In Sparrow, aboriginal rights were expressly

stated not to be absolute.

The aboriginal right to fish for food discussed in Sparrow

was clearly not exclusive to the Musqueam. As Dr. Suttle (a

witness) said in Sparrow:

"No tribe was wholly self-sufficient or

occupied its territory to the complete

exclusion of others" (at p. 1094).

In addition to the Musqueam, many other Indians and non-

Indians share the Fraser River fishery. The evidence in this

case shows parts of the territory are shared with other Indians,

particularly the Babine people at Bear Lake, along the Babine

River, and in the south.

The question whether an aboriginal right, when established,

is exclusive as against the Crown and others has not been

decided authoritatively because it was not until quite recently

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that a claim for such rights has ever been maintained against

the Crown.

The law is clear that both Canada and the province, in the

exercise of their undoubted sovereignty, may enact legislation

which affects Indians and lands reserved for Indians. Canada,

within its jurisdiction, may legislate directly, while British

Columbia's laws of general application may in many circumstances

vitally affect Indians. In this respect, Martland J. speaking

for the majority said in Cardinal v. Attorney General of

Alberta, [1974] 2 S.C.R. 695 at 703:

"A Provincial Legislature could not

enact legislation in relation to Indians, or

in relation to Indian Reserves, but this is

far from saying that the effect of s. 91(24)

of the British North America Act, 1867, was

to create enclaves within a Province within

the boundaries of which Provincial

legislation could have no application. In

my opinion, the test as to the application

of Provincial legislation within a Reserve

is the same as with respect to its

application within the Province and that is

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that it must be within the authority of s.

92 and must not be in relation to a subject-

matter assigned exclusively to the Canadian

Parliament under s. 91. Two of those

subjects are Indians and Indian Reserves,

but if Provincial legislation within the

limits of s. 92 is not construed as being

legislation in relation to those classes of

subjects (or any other subject under s. 91)

it is applicable anywhere in the Province

including Indian Reserves, even though

Indians or Indian Reserves might be affected

by it. My point is that s. 91(24)

enumerates classes of subjects over which

the Federal Parliament has the exclusive

power to legislate, but it does not purport

to define areas within a Province within

which the power of a Province to enact

legislation, otherwise within its powers, is

to be excluded."

It goes without saying that the foregoing, relating to

reserves, must apply with at least equal force to non-reserve

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lands which are subject to an aboriginal sustenance right. Many

cases such as Cardinal, Dick v. the Queen, (1985) 22 C.C.C. (3d)

129 (S.C.C.); and R. v. George, [1966] S.C.R. 267 have found

provincial laws regulating such basic aboriginal practices as

hunting for moose, deer and migratory birds to be valid.

In the face of this, and in view of the fact that Indians

have always had access to all vacant Crown land, it is difficult

to understand how, apart from the question of priorities, an

aboriginal sustenance right in such a remote land could be an

exclusive right. If it was exclusive originally, it has been

changed throughout history in the same way the Fraser River

fishery is no longer exclusively an aboriginal fishery.

The question of exclusivity is, of course, subject to the

principles discussed in Sparrow regarding reconciliation and

priorities etc. which I need not discuss at this time.

(6) Conclusions on Aboriginal Rights

Subject to what follows, the plaintiffs have established,

as of the date of British sovereignty, the requirements for

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continued residence in their villages, and for non-exclusive

aboriginal sustenance and ceremonial rights within those

portions of the territory I shall later define. These

aboriginal rights do not include commercial practices.

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PART 15. EXTINGUISHMENT AND FIDUCIARY DUTIES

1.

General Principles

In its Statement of Defence the province pleads the

plaintiffs' aboriginal rights or "title", if any, was

extinguished by the operation of the "Calder XIII" enactments

passed during the colonial period and by many other colonial

regulations, proclamations, ordinances and enactments (included

in Ex. 1200-1 and 1200-2) as well as "administrative actions

pursuant to [the] statutes and statutory instruments." These

were all introduced into evidence.

In addition the province, by its "alienations project,"

introduced a large collection of documents which together with

the earlier documents mentioned record pervasive colonial and

provincial Crown presence in the territory at the date of the

writ.

All this documentation demonstrates colonial and provincial

dominion over the territory before and since Confederation by

such diverse governmental and administrative activities as

surveying, grants of land, leases and other tenures, land

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registry, schools and hospitals, rights of way for highways,

power and pipe lines, grants in fee simple, forestry, mining,

and guide outfitting permits, various public works, the creation

and governance of villages and municipalities, water and other

placer rights and licences, trapline registration for all or

almost all of the territory, fish and game regulation and

conservation, and a host of other legislatively authorized

intrusions into the life and geography of the territory. Some

of this material, of course, related only to post-confederation

British Columbia.

The province also established by documentary evidence that

most of the Calder XIII legislation was actually enacted not

just in the colony, but also by the Imperial Parliament.

For its part, Canada also adduced extensive evidence of the

federal presence in the territory, including the right of way

and installations for the main line of the Grand Trunk Pacific

Railway (now the northern branch of the C.N.R.), airports,

fishery and police establishments and, of course, Indian

reserves.

A sampling of this volume of documents and other exhibits

Part 15.

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652

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demonstrates that the evidence in this case goes far beyond the

Calder XIII enactments which were more or less the extent of the

extinguishment evidence which was before the Court in that case.

It seems unlikely that the enactment of the Calder XIII

Ordinances by the Imperial parliament was proven in that case

because Hall J. said he doubted the jurisdiction of the colony

to pass enactments that could extinguish aboriginal rights. He

appears not to have been aware that some of this legislation had

also been enacted by the Imperial Parliament.

The province argues that it cannot rationally be asserted

that, standing alongside this all-embracing governmental

structure, there are many parallel aboriginal governments and

separate systems of ownership or rights to use a substantial

portion of the province by what is now such a small segment of

the population. The plaintiffs counter that their rights are

unchanged from what they were at the date of sovereignty.

The underlying purpose of exploration, discovery and

occupation of the new world, and of sovereignty, was the spread

of European civilization through settlement. For that reason,

the law never recognized that the settlement of new lands

depended upon the consent of the Indians. However, as mentioned

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by Taschereau J. in St. Catherine's Milling, and by others, many

of the original North American colonies, for reasons of

practicality or necessity, entered into treaties with their

sometimes unfriendly aboriginal neighbours. That situation did

not arise in this province except briefly in the Colony of

Vancouver Island.

Even the language of the Royal Proclamation, 1763 makes it

plain that the Crown did not consider it necessary to obtain the

consent of the Indians to exclude their interests. Although the

Crown set aside vast areas for hunting grounds at the Crown's

"pleasure," the lands east of the Alleghenies, the old province

of Quebec and Rupert's Land were all excluded from the

Proclamation and these regions were all appropriated to

different regimes, although some of such lands may have been the

subject of a treaty. Rupert's Land later became the subject of

the numbered treaties under a completely different regime

because of a completely different history from British Columbia.

There were a number of different experiences in various parts of

what is now the United States. There is, in fact, no uniform

history for all of the regions of North America, and none of

them had a history similar to British Columbia.

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It will be useful to mention that, because of the division

of powers between Canada and the provinces at the time of

Confederation (1871 for British Columbia), it has been

convenient to consider these matters from the perspective of

Colonial times. That is because Crown authority in those days

was undivided. Thus no division of powers question can arise

about the authority of the Crown to extinguish aboriginal rights

in the colonial period.

It will not be necessary for me to trouble myself with the

question of whether, since Confederation, the province has had

the capacity to extinguish aboriginal interests. This is a vast

legal and constitutional question which has not been fully

explored, although it has been decided in a number of cases that

some provincial legislation applies to Indians and can diminish

their rights to engage in aboriginal activities.

It will also be unnecessary for me to consider the full

meaning and effect of s. 35 of the Constitution Act, 1982

although there is language in the judgment of the Supreme Court

of Canada in Sparrow from which it might be argued that

aboriginal interests which could be extinguished before 1982 may

also be extinguished after that date.

Part 15.

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The reason I do not have to consider those questions is

because of the conclusions I shall express in this Part about

the effect of pre-Confederation colonial legislation.

The right of the Imperial Crown to proceed with the

settlement and development of North America without aboriginal

concurrence was confirmed by the Privy Council in the St.

Catherine's Milling case. This was expressed in practical terms

by stating that "Indian title" existed at the pleasure of the

Crown.

I have already described the considerations which governed

the thinking of those responsible for the establishment of the

Colony of British Columbia, and it would certainly have come as

a surprise to Governor Douglas and his colleagues, and to the

Colonial Secretaries and the Imperial Privy Councillors if it

had been suggested to them that the consent of the Indians was

required before the settlement of any part of the colony could

be undertaken. Some of them thought the so-called "Indian

title" (which I equate to aboriginal rights), except with

respect to village sites, "should" be extinguished by treaty,

but they obviously did not believe that was a pre-condition to

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the settlement of the colony.

It would be wrong to attribute legal understanding to these

men on the basis that they were familiar with the law relating

to aboriginal rights as we know it today from cases such as

Calder, Guerin and Sparrow. Even St. Catherine's Milling was 30

years into the future. The proceedings of the Parliamentary

Committee on New Zealand would more likely be the authority they

would have in mind.

Because of experiences in Ontario, some of them believed

"Indian title" should be extinguished by treaty and the payment

of annuities, but even on Vancouver Island where some treaties

had been arranged, the colonial officers obviously considered

themselves under no obligation to do so. There was much

settlement there without treaties. No treaties of any kind were

arranged on the mainland.

It would not be accurate to assume the colonial officials,

or their masters in London, chose wilfully to ignore aboriginal

interests. As the evidence shows, their intention was to allot

generous reserves, and to satisfy the requirements of the

Indians in that way, and to allow Indians to use vacant Crown

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land.

Their policy, which was the Crown's policy, was clearly

expressed. It was that village sites, cultivated fields and

reasonable surrounding hunting grounds would be secured to the

Indians by reserves, but the rest of the colony belonged to the

Crown and would be made available for settlement.

I have no reason to find these colonial officials, both on

the ground here in British Columbia and in London, did not

believe the Indians should be treated fairly in a way consistent

with the settlement of the colony. The writings of Governor

Douglas on this question clearly disclose not just an intention,

but also instruction to his officers, that reserves were to be

allotted generously.

At the same time, it is obvious none of these colonial

officers believed the settlement of the colony depended in any

way upon Indian consent. Neither did they believe Indian

presence on non-reserve land precluded settlement. In fact,

they believed that in most cases the Indians would secure the

lands they wished in the form of reserves and that they would

not be harmed by settlement.

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While the foregoing describes the state of mind of colonial

officials at the start of the colonial period, the social

disadvantage of the Indians was ongoing and largely but not

entirely unrecognized. For this reason it is difficult, but

necessary, to keep the difference between legal rights and

social wrongs very much in mind. However much one may regret

the failure of the colonists to recognize or react to the

differences between the two communities, the legal consequences

arising from the rights of the parties must be determined

objectively from the constitutional and legal measures taken in

that period rather from social and economic failures.

It was in this context that the Calder XIII and other

legislation was enacted by the colony and in some cases by the

Imperial Parliament.

I now propose to discuss the law relating to the question

of extinguishment of aboriginal interests. After that I shall

attempt to apply this law to the plaintiffs' claims in this

action.

I must start with the proposition that the plaintiffs'

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aboriginal rights in the territory at the time of sovereignty

existed during the "pleasure of the Crown." That, in my view,

is established by binding Privy Council and Canadian

jurisprudence of which St. Catherine's Milling is the leading

authority. It is possible the officers of the Crown did not

have that precise language in mind in the 1850's and 1860's but

that seems to have been the law, as it was then understood, and

as it was later stated to be in St. Catherine's Milling.

This brings me to Calder, which was the principal authority

on extinguishment until Sparrow. As I have said, Calder was an

unusual case because of the way it was argued. Counsel agreed

to facts from which an entitlement to common law aboriginal

rights to over 1,000 square miles in the lower Nass valley could

be inferred. The principal issue considered by all the judges

of the Supreme Court of Canada (except Pigeon J.) was whether

the Calder XIII and other enactments extinguished all those

rights.

There was another issue which was considered at the trial

in Calder and on the appeal to the Court of Appeal. It related

to the question of whether there could be aboriginal rights

without a Crown grant or recognition. The Crown's argument on

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that question found favour with both the trial judge and all

three members of the Court of Appeal but it was not accepted in

the Supreme Court of Canada. Since that time it has been

decided by Guerin and other authorities that aboriginal rights

arise by operation of law from indefinite, long time use of

specific lands for aboriginal purposes. I have accepted that

and I do not propose to consider it further.

The trial judge and all three judges of the Court of Appeal

in Calder also dealt with the question of extinguishment as did

six of the seven judges who heard the appeal in the Supreme

Court of Canada.

At (1969) 8 D.L.R. (3rd) 59, the trial judge, Gould J. said

at p. 82:

"All (Calder) thirteen reveal a unity

of intention to exercise, and the

legislative exercising, of absolute

sovereignty over all the lands of British

Columbia, a sovereignty inconsistent with

any conflicting interest, including one as

to "aboriginal title, otherwise known as the

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Indian title", to quote the statement of

claim."

In the Court of Appeal, Tysoe J.A. with whom the Chief

Justice agreed, gave the majority judgment. On the question of

extinguishment he referred to many of the same dispatches I have

mentioned and from that source he extracted the policy of the

Crown to open the colony for settlement. At (1970) 74 W.W.R.

481, at p. 500, he said that such policy "...necessarily

involved the extinguishment of Indian title."

Then, after reciting the colonial enactments, and some of

the dispatches which I have already cited, Tysoe J.A. said at p.

518:

"...The remainder of the unoccupied lands

were thrown open for settlement. Thus

complete dominion over the whole of the

lands in the Colony of British Columbia

adverse to any tenure of the Indians under

Indian title was exercised. The fact is

that the white settlement of the lands which

was the object of the Crown was inconsistent

with the maintenance of whatever rights the

Indians thought they had."

At p. 533, Maclean J.A. said:

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"It is not disputed that the old Colony

of British Columbia had complete legislative

jurisdiction to extinguish the so-called

"Indian title", if in fact any such "title"

ever existed.

To use the words of Douglas J. of the United

States Supreme Court in U.S. v. Sante Fe

Pac. Ry, supra, at p. 347, the title of the

Indians, if it ever existed, was

extinguished when the pre-Confederation

governments of British Columbia exercised

"complete dominion adverse to the right of

occupancy" of the Indians..."

I turn now to the judgments in the Supreme Court of Canada.

There is nothing in the judgment of Judson J. in the

Supreme Court of Canada suggesting that extinguishment depended

upon the consent or agreement of the Indians. Hall J. seems to

agree that aboriginal rights were extinguishable but he

suggested at p. 402 that this could only be accomplished by

surrender or express legislation. I observe that consent would

not be required for the latter.

Judson J., speaking for himself and two other judges, found

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the Calder XIII enactments did indeed extinguish the aboriginal

rights of the Nishga. At p. 333 he agreed with the passage I

have quoted above from the summary of the trial judge

Then, at pp 334-335 Judson J. quoted from U.S. v. Santa Fe

Pacific Ry. Co., (1941), 314 U.S. 339 at p. 347:

"'Extinguishment of Indian title based on

aboriginal possession is of course a

different matter. The power of Congress in

that regard is supreme. The manner, method

and time of such extinguishment raise

political, not justiciable, issues. Buttz

v. Northern Pacific Railroad, 119 U.S. 55,

66 S. Ct. 100, 30 L. ed. 330. As stated by

Chief Justice Marshall in Johnson v.

M'Intosh [supra] at p. 586, "the exclusive

right of the United States to extinguish"

Indian title has never been doubted. And

whether it be done by treaty, by the sword,

by purchase, by the exercise of complete

dominion adverse to the right of occupancy,

or otherwise, its justness is not open to

inquiry in the Courts. Beecher v. Wetherby

(1877), 95 U.S. 517 at 525, 24 L. ed. 440 at

441.'" (my emphasis)

Judson J. also referred to Re Southern Rhodesia, [1919]

A.C. 221 (J.C.P.C.), which he said was to the same effect.

The view of Judson J. is best captured in the following

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passages from his judgment at p. 344 where he quoted from the

American case Tee-Hit-Ton Indians v. U.S., (1955) 348 U.S. 272

(U.S.S.C.) as follows:

"'This is not a property right but amounts

to a right of occupancy which the sovereign

grants and protects against intrusion by

third parties but which right of occupancy

may be terminated and such lands fully

disposed of by the sovereign itself without

any legally enforceable obligation to

compensate the Indians.'"

Judson J. then continued with his own conclusion at the same

page:

"In my opinion, in the present case,

the sovereign authority elected to exercise

complete dominion over the lands in

question, adverse to any right of occupancy

which the Nishga Tribe might have had, when,

by legislation, it opened up such lands for

settlement, subject to the reserves of land

set aside for Indian occupation."

Hall J. reached a different conclusion. He first decided

that aboriginal rights arose either by operation of law or by

reason of the Royal Proclamation, 1763, (which he found to apply

to British Columbia), and secondly he considered the test to be

applied for the extinguishment of such rights. He concluded

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that the onus of establishing extinguishment rested upon the

Crown, and then, citing Lipan Apache Tribe v. U.S. (1967) 180

Ct. Cl. 487 (Court of Claims) that:

"...in the absence of a 'clear and plain

indication' in the public records that the

sovereign 'intended to extinguish all of the

[claimants'] rights' in their property,

Indian title continues..." (my emphasis)

Hall J. at p. 404 found:

"...There is no such proof in the case

at bar; no legislation to that effect."

Thus the judgment of Judson J. for himself, Martland and

Ritchie JJ. allowed "inconsistency" between the claimed Indian

rights and the expression of sovereign intent to be sufficient.

They did not insist upon "clear and plain" language. For

example, Judson J. found:

"...the establishment of the railway

belt under the Terms of Union is

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inconsistent with the recognition and

continued existence of Indian title."

On the other hand, Hall J. for himself, Spence and Laskin

JJ. found that the Sovereign's intention to extinguish must be

made "clear and plain," and I have already mentioned his other

comment about a requirement for either surrender or express

legislation.

In Canadian Pacific Limited v. Paul, (1988) 2 S.C.R. 654,

the Supreme Court of Canada seems to accept the proposition that

a grant of a fee simple interest in land without mention of

aboriginal rights would extinguish those rights, and that grants

of lesser interests, such as a right of way, might not

extinguish those rights but would nevertheless create a valid

interest.

On the question of express statutory language I note the

recent finding of Cory J., speaking for the majority in Horseman

v. the Queen, (1990) 1 S.C.R. that:

"...the onus of proving either express

or implicit extinguishment lies upon the

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Crown." (my emphasis)

This question of extinguishment was considered again in a

unanimous judgement of the Supreme Court of Canada in Sparrow

which is the most recent authoritative statement on the

question. At p. 1109 the Court recognized the power of the

Crown to extinguish aboriginal rights. Speaking of tidal

fishing the Court said:

"There is nothing in the Fisheries Act or

its detailed regulation that demonstrates a

clear and plain intention to extinguish the

Indian aboriginal right to fish. The fact

that express provision permitting the

Indians to fish for food may have applied to

all Indians and that for an extended period

permits were discretionary and issued on an

individual basis rather than a communal

basis in no way shows a clear intention to

extinguish. These permits were merely a way

of controlling the fisheries, not defining

underlying rights."

I conclude from this passage that the aboriginal right to

fish for food would indeed be extinguished if the legislation

showed a clear and plain intention to do so.

At the same page, the Court settled the test for

extinguishment when it said:

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"The test of extinguishment to be adopted,

in our opinion, is that the Sovereign's

intention must be clear and plain if it is

to extinguish an aboriginal right."

It is significant, in my judgment, that the Court made this

pronouncement regarding the test for extinguishment in the

context of a discussion of Calder, which was concerned with the

colonial period, and also that the Court did not include express

statutory language as a part of its test. I therefore conclude

that express statutory language is not a requirement for

extinguishment.

The unanimous decision of all the judges (in Sparrow) so

long after these historical events, to regard intention at a

time of uncertain law and understanding as the governing factor

in extinguishment persuades me that intention in this context

must relate not to a specific, isolated intention on the part of

the historical actors, but rather to the consequences they

intended. In other words, the question is not did the Crown

through its officers specifically intend to extinguish

aboriginal rights apart from their general intention, but rather

did they plainly and clearly demonstrate an intention to create

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a legal regime from which it is necessary to infer that

aboriginal interests were in fact extinguished.

There are two further reasons why I have reached the

conclusion just expressed. First, the governing intention is

that of the Crown in the 1850's and 1860's. It surely cannot be

the intention of Her Majesty that is relevant, but rather that

of her Ministers, Governors, and other officers, in short, an

amalgam of thought, belief, planning and intention on the part

of a number of officials who may all have had different

knowledge, understanding and priorities. Intention, in this

context, must be a matter of implication.

Secondly, the colonial period lasted for nearly 13 years,

from l858 to 1871. Those were busy times in the Colony and it

would be unrealistic to think that this question of

extinguishment should be focused narrowly upon single moments or

isolated events.

For example, the last of the Calder XIII, (Ex. 1186, Tab 80

is dated June 1st, 1870, near the end of the colonial period.

It is entitled An Ordinance to amend and consolidate the Laws

affecting Crown Lands in British Columbia. It repeals,

consolidates and re-enacts most of the earlier Calder

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enactments, and it is a comprehensive restatement of the land

law of the colony.

Prior to the enactment of this Ordinance, the Attorney

General wrote to the Governor, on April 27, 1870, for his

information, explaining this new measure in which it was

described as "...one uniform or rather general Crown land system

over the entire Colony."

The Attorney explained that there

were different systems in force on the Mainland and on the

Island, and it was explained, in great detail, how these matters

were to be managed in a uniform system. One cannot read this

report, (Ex. 1186, Tab 81), which contains no mention of Indians

except in the prohibition against pre-emption, without

concluding that there was indeed an intention to manage Crown

land throughout the colony by a system that was inconsistent

with continuing aboriginal rights.

In closing his Report, the Attorney General said:

"The vital importance of the subject - the

necessity of having one system of land laws

for the Colony, after the Country has

suffered for so many years from the loose

diversity, discordant, oft-times

antagonistic legislation that has taken

place in different sections of the Colony

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before Union on the subject - the anxious

care which has been bestowed upon the

measure - to introduce no innovation or

alteration which experience has not

justified, compel the expression of an

earnest hope that the Ordinance in its

present shape may ere long receive that

confirmation at the hands of her Majesty

which will establish it as a permanent

consolidated law for the regulation and

settlement of the Crown Lands of British

Columbia."

The Ordinance provides in s. III:

" From and after the date of the

proclamation in this Colony of Her Majesty's

assent to this Ordinance, any Male person

being a British Subject, of the age of

eighteen years or over, may acquire the

right to pre-empt any tract of unoccupied,

unsurveyed, and unreserved Crown Lands (not

being an Indian settlement), not exceeding

Three Hundred and Twenty Acres in extent in

that portion of the Colony situated to the

Northward and Eastward of the Cascade or

Coast Range of Mountains, and One Hundred

and Sixty Acres in extent in the rest of the

Colony. Provided that such rights of pre-

emption shall not be held to extend to any

of the Aborigines of this Continent, except

to which as shall have obtained the

governor's special permission in writing to

that effect."

This was not an entirely new provision as similar but less

detailed provisions for pre-emption, but with different

acreages, had been enacted as early as 1859. Also, and as

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mentioned earlier, the prohibition against aboriginal pre-

emption was first enacted in 1866. This was, however, a

comprehensive land ordinance which, when it came into force,

confirmed again that a separate system of land interests could

not stand alongside this one in any part of the colony.

This 1870 Ordinance comprised 55 sections, and made

provision not just for a comprehensive system of pre-emption,

but also for leases for pastoral, hay and timber lands, actions

for ejectment (by jury trial if requested), appeals, Crown

reserves and surveys, water privileges, Free Miners licenses,

Crown Grants "for the encouragement of Immigration", and other

matters.

On May 11, 1870 the Attorney General wrote a very long

report to the Governor (Ex. 1189, Tab 81) explaining the

operation not just of the this Ordinance, but also two other

Ordinances passed by the Legislative Council that year entitled

"An Ordinance to assimilate the Law relating to the Transfer of

Real Estate and to provide for the Registration of Titles to

Land throughout the Colony of British Columbia" and "The Crown

Grants Ordinance, 1870. I mention these other 2 measures, even

though they have not been accorded "Calder" status, because they

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compliment the 1870 Land Ordinance, and because the description

given to them by the Attorney General is a useful description of

the complete land system of the colony which again does not

mention Indians. It is so thorough and comprehensive that it

illustrates the pervasive intrusion of the Crown into the land

law of the Colony.

Also, notice of Royal approval for these three measures was

given in one communication from the Colonial Secretary, Lord

Kimberley on Sept. 5, 1870 whose letter (Ex. 1186, Tab 85),

shows they were carefully considered in London, and a suggestion

was made that the Land Registration statute be amended by adding

provisions for compensating parties wrongfully deprived of land

from erroneous registration.

I think I should mention that I am not presently satisfied

that each of the Calder XIII were all enacted by the Imperial

Parliament, as I first thought. I believe most of them were,

and there was no challenge to this in counsel's arguments, but I

am not sure "Her Majesty's gracious confirmation and Allowance,"

as for the 1870 Land Ordinance necessarily indicates

Parliamentary enactment. Confirmation and Allowance may be just

a diplomatic way of confirming the approval of the Colonial

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Office, and its Secretary, but in a colonial milieu it adds

credibility to the formal Proclamation of the Ordinance in the

colony which appears in Ex. 1186, Tab 86, dated October 20,

1870.

Thus, in my judgment, intention sufficient to establish

extinguishment must be examined broadly and need not be confined

to a specific act or decision at a particular moment in colonial

history. Instead, intention may more properly be discerned from

a course of conduct over the whole of the colonial period.

I conclude that an intention to extinguish aboriginal

rights can be clear and plain without being stated in express

statutory language or even without mentioning aboriginal rights

if such a clear and plain intention can be identified by

necessary implication. An obvious example would be the grant of

a fee simple interest in land to a third party, or the grant of

a lease, license, permit or other tenure inconsistent with

continued aboriginal use. I shall consider this question again

in a moment when I come to discuss extinguishment in relation to

aboriginal rights.

The unanimous decision of all the judges (in Sparrow) so

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long after these historical events to regard intention at a time

of uncertain law and understanding as the governing factor in

extinguishment persuades me that intention in this context must

relate not to a specific or precise state of mind on the part of

the historical actors, but rather to the consequences they

intended for their actions. In other words, the question is not

did the Crown through its officers specifically address the

question of aboriginal rights, but rather did they clearly and

plainly intend to create a legal regime from which it is

necessary to infer that aboriginal interests were in fact

extinguished.

As the plaintiffs have advanced three separate classes of

aboriginal claims, ownership, jurisdiction and aboriginal

rights, I shall deal with extinguishment in relation to each of

them.

2.

Extinguishment of Aboriginal Rights of Jurisdiction and

Ownership

(a) Aboriginal Jurisdiction

I discussed this claim in Part 14 of this judgment and I

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concluded that aboriginal sovereignty did not survive the

assertion of British sovereignty. I do not find it necessary to

consider or decide whether the establishment of the Colony of

British Columbia, for example, should be classified as a

displacement of one sovereignty by a different one which the law

recognizes, or whether the legal arrangements which were put in

place during the colonial period amounted to an extinguishment

of the earlier sovereignty.

I tend to think the former more correctly describes the

historical reality, but if I am wrong in that regard, then it

would be my judgment that the Crown clearly and plainly

intended, in the sense I have mentioned, to extinguish any

aboriginal jurisdiction or sovereignty which survived the

assertion of British sovereignty. This, of course, was

accomplished by the governmental arrangements the Crown put in

place during the colonial period which were clearly intended to

apply throughout the colony and to bind everyone who lived

there. It is inconceivable in my view, that another form of

government could exist in the colony after the Crown imposed

English law, appointed a Governor with power to legislate, took

title to all the land of the colony and set up procedures to

govern it by a Governor and Legislative Council under the

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authority of the Crown.

In addition, in my view, the enactment of the British North

America Act, 1867 and adherence to it by the Colony of British

Columbia in 1871, which was accomplished by Imperial, Canadian

and Colonial legislation confirmed the establishment of a

federal nation with all legislative powers divided only between

Canada and the province. This also clearly and plainly

extinguished any residual aboriginal legislative or other

jurisdiction, if any, which might have existed in the colonial

period.

(b) Aboriginal Ownership of Land

If I have erred in the conclusion I have already stated

about aboriginal ownership, and if such an interest, or anything

equivalent to it (additional to aboriginal rights), survived the

assertion of British sovereignty then I must deal with that

question at this time. My judgment is that any aboriginal

interests in land that survived sovereignty were included within

the rubric of aboriginal rights which I shall consider in a

moment. As I understand the authorities, there is no

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jurisprudence binding on me which suggests the aboriginal

interests of the plaintiffs' ancestors after the assertion of

sovereignty constituted anything more than a user burden on the

underlying title of the Crown.

If that is not so, I find the evidence establishes beyond

question that the Crown, in the colonial period, clearly and

plainly intended to, and did, extinguish any aboriginal right of

ownership which existed in the colony. I say this because the

colonial legislation so clearly appropriated all the land of the

colony to the Crown and made provision for its alienation

firstly on the authority of the Governor according to English

law and subsequently pursuant to legislation. That, in my

judgment, is completely inconsistent with any continuing

aboriginal ownership interest.

As to intention, the dispatches passing between the

Governor and the Colonial Secretaries in London, and legislative

action taken, make it clear and plain first that the colony was

to be thrown open for settlement; secondly that all the land of

the colony belonged to the Crown in fee, and thirdly that only a

grant from the Crown could create an ownership or proprietary

land interest in the colony.

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I cannot imagine a any clearer statement of intention than

the Proclamation dated February 14, 1959, (Calder II, Ex. 1185-

10), in which it was declared, in s. 1:

"1. All the lands in British Columbia,

and all the Mines and Mineral therein,

belong to the Crown in fee."

After 1858 the Crown embarked upon numerous legislative

arrangements and participated in innumerable transactions

relating to the land of the province which clearly and plainly

exclude any possibility of any other ownership regime. In fact,

Calders III and XIII enacted in 1860 and 1870 respectively were

comprehensive statements of the intention of the colonial Crown

completely to control both the ownership and use of all the land

in the colony. As I have said, the grant of fee simple or

lesser interests are, by themselves, the clearest and plainest

possible expressions of an intention to extinguish any other

ownership interest, and there are many other examples.

To put it in a nutshell, I find that legislation passed in

the colony and by the Imperial Parliament that all the land in

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the colony belonged to the Crown in fee, apart altogether from

many other enactments, extinguished any possible right of

ownership on the part of the Indians.

The question of whether the Crown's ownership was burdened

with aboriginal rights is, of course, a separate question which

I shall now turn to consider.

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3.

Extinguishment of Aboriginal Rights

After the Queen's Ministers clearly expressed their

intention to create a new colony on the Mainland, the Imperial

Parliament, by the statute dated Aug. 2nd, 1858, established the

Colony of British Columbia and authorized the Crown to appoint a

Governor:

"...to make provision for the

administration of justice [therein] and

generally to make, ordain, and establish all

such laws, institutions, and ordinances as

may be necessary for the peace, order, and

good government of Her Majesty's subjects

and others therein;..."

Then the Crown appointed James Douglas as Governor. There

can be no doubt about his intention or that of his Imperial

masters. On July 1, 1858 Lord Lytton wrote to Douglas:

"...All claims and interests must be

subordinated to that policy which is to be

found in peopling and opening up of the new

country with the intention of consolidating

it as an integral and important part of the

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British Empire."

In reply, on Oct. 12, 1858, Douglas wrote:

"Having just ascertained, from your Dispatch

of the 1st of July last, that it was the

wish of Her Majesties Government to colonize

the country and develop its resources, I

propose..."

In reference to Calder III, the Governor on January

12, 1860 said:

"The object of the measure is solely to

encourage and induce the settlement of the

country: occupation is, therefore, made the

test of title, and no pre-emption title can

be perfected without a compliance with that

imperative condition..."

The Act distinctly reserves, for the benefit

of the Crown, all town sites, auriferous

land, Indian Settlements..., and public

rights whatsoever; the emigrant will,

therefore, on the one hand, enjoy a perfect

freedom of choice with respect to

unappropriated land, as well as the

advantage, which is perhaps of

more real

importance to him, of being allowed to

choose for himself and enter at once into

possession of land without expense or delay;

while the rights of the Crown are, on the

other hand, fully protected, as the land

will not be alienated nor title granted

until after payment is received.

...

Other good effects are expected to result

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from the operation of the Act; there is, for

example, every reason to believe that it

will lead to the more rapid colonization of

the country, and to greater economy in its

survey, which can be effected hereafter,

when roads are made, at a much smaller cost

for travelling and conveyance than at the

present time." (My emphasis). (Ex. 1187-

13).

There are, in addition, innumerable other references to the

clear and plain intention of the Crown, represented by its

Ministers and other officials, to settle the colony.

Immediately upon his appointment, Governor Douglas

proclaimed the laws of England to be in force in the colony. He

also issued a Proclamation (which is the way he legislated),

authorizing the Governor of the colony from time to time to

grant to any person any land belonging to the Crown. This is

the scheme that was implemented in Calder I, which was enhanced

and refined in the subsequent colonial legislation most of which

was duly re-enacted by the Imperial Parliament. This policy was

supplemented by many other statutory instruments passed during

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colonial times.

The Crown also proceeded to have surveys completed and land

sales were undertaken. The Crown also embarked upon the

development of the province in many other ways besides straight-

forward grants of land, some of which have already been

described.

The process leading to the enactment of Calder III is

particularly instructive. It will be recalled that a question

had been raised by Capt. Clark about "aboriginal title" and

Begbie J. had expressed an opinion that it had not been

extinguished. I am satisfied he was referring to treaty

extinguishment, and he was not addressing himself to the

question I am considering. This opinion and all other material

was sent forward to London where it was considered for some

months and the legislation was then enacted. The province

summarizes the chronology in its summary of argument as follows:

"a. The sole purpose of the

Proclamation was to provide a means whereby

title to land could be vested in a Crown

grantee.

b. The Proclamation was under

consideration by the Colonial Office from

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March 5, 1860 until December 6, 1860 when

the Queen's sanction was recorded in a

dispatch of that date.

c. The question of aboriginal title had

been expressly raised in October 1859 by

Captain Clarke in his elaborate scheme for

the disposition of Crown lands in British

Columbia on the assumption that Indian title

"... had been extinguished or separate

provision made for them ..."

d. The scheme was forwarded to Douglas

for comment on January 7, 1860 but, more

importantly, he was later told that approval

of his land proclamation would be withheld

until his comments were received. This was

done in May, 1860.

e. Douglas' comments were forwarded in

August 1860 (Ex. 1142-29) and under separate

cover of the same date he sent those of

Begbie, J., who expressly denied Clarke's

assumption that Indian title had been

extinguished and that "... Separate

provision must be made for it, and soon ..."

f. These dispatches were received

October 8, 1860. The Emigration Board saw

nothing in Begbie J.'s paper to overrule the

recommendations of Douglas - that the

Proclamation (Calder III) be allowed to

operate..."

There is, as described in Part 11, a great deal of evidence

demonstrating that the Crown with full knowledge of the local

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situation fully intended to settle the colony and to grant

titles and tenures unburdened by any aboriginal interests. The

Crown must be taken to have known that it could not free the

land from this burden without extinguishing these aboriginal

interests. This probably did not trouble the Crown because it

also intended to allot generous reserves, and to allow the

Indians to use vacant lands. The primary intention however, was

obviously to settle the colony by granting unburdened interests

to settlers.

In view of this history, I respectfully agree with the

views of the seven judges who reached the same conclusion in

Calder. I find the constitutional and legal arrangements put in

place in the colony were totally inconsistent with aboriginal

rights the continuation of which would have prevented the Crown

from the settlement and development of the colony. As the

intention of the Crown must be ascertained objectively from a

consideration of all the circumstances in their historical

setting, I find the Crown clearly and plainly intended to, and

did, extinguish aboriginal rights in the colony by the

arrangements it made for the development of the colony including

provision for conveying titles and tenures unencumbered by any

aboriginal rights and by the other arrangements it made for

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Indians.

I test this conclusion by reference to a hypothetical

parcel of non-reserve land which, before the creation of the

colony, had been used for a long time for aboriginal sustenance.

After the enactment of even Calder I, and more so after all the

Calder legislation, such parcel was subject to Crown grant, pre-

emption or other disposition to third parties. Upon such

disposition this parcel became the property of a stranger under

circumstances which exclude the continuation of aboriginal use.

On the authorities I have mentioned, I see no answer to the

conclusion that the Crown in colonial times clearly and plainly

intended not to recognize, and to extinguish, aboriginal rights

which might otherwise have prevented it from transferring title

to its settlers. This, of course, is completely consistent with

the reality already mentioned that (except for village sites),

aboriginal rights existed only at the pleasure of the Crown. I

have no doubt the Crown's grantees during colonial times

obtained title to or interests in land obtained from or through

the Crown unburdened by aboriginal rights.

I have also considered whether the intention of the Crown

to extinguish aboriginal rights could be limited just to the

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lands it actually transferred to third parties, but I reject

that as did all of the seven judges who reached the same

conclusion in Calder. I find that was not the intention of the

Crown. This is shown in many different ways, including the fact

that the Crown took title to all the land in the Colony and

enacted comprehensive land law legislation for that very

purpose. The Crown's intention was clearly ongoing with Indian

interests looked after by reserves and the right to use vacant

land and all the rest of the colony thrown open for settlement.

The colonial legislation must be taken to have extinguished

aboriginal rights as they existed in the colony at the date of

sovereignty except for Indian reserves.

I pause to say that I do not intend the foregoing to extend

beyond aboriginal rights to land. Specifically, I do not intend

it to apply to fishing as it was not suggested in argument that

I should pronounce in any way on fishing rights and, of course,

no claim was made in this case against the federal Crown.

It follows, in my judgment, that when the Colony united

with Canada in 1871, the province obtained all of the Crown

lands of the colony under s. 109 of the British North America

Act, 1867, free of any Trust or Interests of Indians. The

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province was thereafter able to transfer title or other tenures

to Crown grantees.

In addition to extinguishing aboriginal rights, however,

the Crown also intended that the Indians would be furnished with

"generous" reserves, and legislative arrangements were made for

that purpose. I have already expressed my views on that

process.

4.

Fiduciary Duties

During colonial times, and subsequently, the Crown also

agreed, for the time being, that the Indians and every other

person in the colony could use or continue to use vacant Crown

lands for lawful purposes. For example, on February 5, 1859

Governor Douglas informed the House of Assembly that the

Indians:

"...were to be protected in their

original right of fishing On the coasts and

in the Bays of the Colony, and of hunting

over all unoccupied Crown lands; and they

were also to be secured in the enjoyment of

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their village sites and cultivated fields.

In a dispatch dated October 9, 1860 Governor Douglas wrote:

"...I also explained to them that the

magistrates had instructions to stake out,

and reserve for their use and benefit, all

their occupied village sites and cultivated

fields and as much land in the vicinity of

each as they could till, or was required for

their support; and that they might freely

exercise and enjoy the rights of fishing the

lakes and rivers, and of hunting over all

unoccupied Crown lands in the colony;"(my

emphasis).

This promise was often repeated both during colonial and

provincial times. This permitted use, apart from reserves, was

not limited to specific areas for specific Indians, nor were any

priorities established. Thus Indians from one part of the

colony were entitled to use vacant land in any other part of the

colony.

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I have considered whether this permitted use should be

construed as an amended aboriginal right. I have concluded that

this would not be proper: firstly, that is not how aboriginal

rights are created; secondly, the "permission" was extended to

both Indians and non-Indians which is not an aboriginal right;

and thirdly, the lack of identified or specific lands is

inconsistent with aboriginal rights. In this last-mentioned

connection, I have held that aboriginal rights are not

necessarily exclusive where more than one Indian people have

used the same land, but aboriginal rights attach only to the

specific lands which aboriginal ancestors have used for an

indefinite long time.

Rather, I find that this kind of permission may more

closely be related to the arrangements included in the Douglas

treaties, one of which I quoted in Part 11. Included in some of

those treaties was the assurance given to the Indians:

"... it is also understood that we are at

liberty to hunt over the unoccupied lands,

and to carry on our fisheries as formerly.

..."

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I do not recall any argument on the construction of this

language, but it is clear from the historical context that the

permitted use was limited to the time the particular land

remained vacant. Such was the conclusion expressed by Lambert

J.A. in R. v Bartleman, (1984) 55 B.C.L.R. 78 @ p. 97.

(B.C.C.A.) with which I respectfully agree.

Doing the best I can to characterize the agreement or

permission of the Crown to its aboriginal peoples, I conclude

that it amounted at least to a promise that vacant lands could

be used for aboriginal purposes, subject to the general law, so

long as such lands were not dedicated to an adverse purpose.

This was a valuable right because it was never the intention of

the Crown that the Indians would be required to live or stay on

their reserves.

Attorney-General Walkem said as much about the colonial

period in his 1875 Report:

"...Under [Colonial] policy the Natives were

invited and encouraged to mingle with and

live amongst the white population..."

(Ex. 1182, p.2)

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As I understand the history, the Indians of the colony and

province have indeed used vacant Crown land and are continuing

to do so. This leaves me with the question whether the Crown's

promise has any legal effect at this time. While no specific

argument was addressed to this question at trial, the arguments

of counsel were so comprehensive about duties and obligations

that I consider it open to me to consider. Certainly I was

furnished with all the authorities I require for this purpose,

and counsels' excellent submissions dealt extensively with all

the principles upon which I propose to rely. As in other

matters mentioned earlier, I shall leave it to counsel to

consider whether an amendment is required.

In my judgment, s. 35 of the Constitution Act, 1982, does

not apply to the question I am now considering because it only

recognizes and affirms aboriginal rights which I have excluded

in this case.

The relationship between the Crown and Indians is, however,

an emerging area of law which is only now starting to be

explored, and several recent cases have established that special

duties and obligations arise out such relationships. I need

only mention that, prior to extinguishment, the Indians of the

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territory had undoubted aboriginal rights to parts of the

territory. Until extinguished, these were legal rights which

could have been enforced in the courts although that might not

have been recognized at that time.

Prior to extinguishment the Crown had already recognized

its comprehensive obligation regarding the welfare of the

Indians. The dispatches include many such references. When the

Crown extinguished these legal rights it made the promise I have

already described. How should the law classify that promise?

Guerin is a difficult case to apply in the circumstances of

this case because its facts were so completely different. As

already mentioned, it was concerned with a surrender under the

Indian Act, and the duty found in that case arose from a

surrendered interest in a reserve. Nevertheless, the judgments

provide useful instruction.

Wilson J., at p. 348-49 in Guerin, found that s. 18 of the

Indian Act does not expressly impose a fiduciary obligation on

the Crown, but she thought the section recognized the existence

of such a [fiduciary] obligation which had its "...roots in the

aboriginal title of Canada's Indians..."

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Dickson J. at p. 376 expressed the same view about the root

of the Crown's duty, but he went on to describe the nature of

the obligation owed by the Crown. At p. 375, after finding that

the Crown's obligation could not be regarded as a trust he said:

"...That does not, however, mean that the

Crown owes no enforceable duty to the

Indians in the way in which it deals with

Indian land.

In Guerin, Indian interests in the subject land were not

extinguished. Instead some reserve land was surrendered for the

intended benefit of the Indians. In this case, aboriginal

rights were extinguished for the purpose of becoming available

for settlers, and a different remedy is required, perhaps by the

same route.

Then, on p. 376 Dickson J. went on to confirm that the

statutory scheme [of the Indian Act] "...places upon the Crown

an equitable obligation, enforceable by the courts to deal with

the land for the benefit of the Indians." He also said this

obligation did not amount to a trust, but rather a fiduciary

duty.

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He then adverted to the Royal Proclamation which he said is

recognized in the surrender provisions of the Indian Act and he

added, at p. 376:

"The surrender requirement, and the

responsibility it entails, are the source of

a distinct fiduciary obligation owed by the

Crown to the Indians."

Then, after discussing aboriginal rights generally, based

largely upon the assumed application of the Royal Proclamation,

Dickson J. said at p. 385:

"Public law duties, the performance of which

requires the exercise of discretion, do not

typically give rise to a fiduciary

relationship....The mere fact, however, that

it is the Crown which is obligated to act on

the Indians' behalf does not of itself

remove the Crown's obligation from the scope

of the fiduciary principle. The Crown's

obligation to the Indians with respect to

that interest is therefore not a public law

duty. While it is not a private law duty in

the strict sense either, it is nonetheless

in the nature of a private law duty.

Therefore, in this sui generis relationship,

it is not improper to regard the Crown as a

fiduciary. ...

"...When, as here, an Indian Band

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surrenders its interest to the Crown, a

fiduciary obligation takes hold to regulate

the manner in which the Crown exercises its

discretion in dealing with the land on the

Indian's behalf.

It is often dangerous to apply principles found in one case

to the facts of a different case, but there are similarities

between Guerin and this case. In both cases the Indians had a

legal right, both with their roots in aboriginal rights. In

both cases they lost that right, in Guerin by surrender, and in

this case by extinguishment. In the former, the Court imposed a

fiduciary duty upon the Crown; in this case the Crown promised

the Indians they could use the land of the colony and province

for aboriginal purposes until it was required for other

purposes. Keeping in mind the general obligation of the Crown

towards Indians, and that "the categories of fiduciary, like

those of negligence should not be considered closed," (Guerin,

p. 384), it is my view that a unilateral extinguishment of a

legal right, accompanied by a promise, can hardly be less

effective than a surrender as a basis for a fiduciary

obligation.

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While the document in question in Sioui was found to be a

treaty, it was hardly more than a permit in writing to conduct

aboriginal activities and it was enforced with qualifications

which recognized competing Crown interests.

In Sparrow, the Court at p. 1108 referred to Guerin, and R.

v. Taylor and Williams, and said:

" ... the Government has the responsibility

to act in a fiduciary capacity with respect

to aboriginal peoples. The relationship

between the Government is trust-like, rather

than adversarial, and contemporary

recognition and affirmation of aboriginal

rights must be defined in light of this

historic relationship.

The foregoing passage from Sparrow must be limited by its

context as the Court was considering an alleged interference

with an unextinguished, fairly obvious existing aboriginal

right. Further, this statement cannot be used to impose a

general comprehensive fiduciary duty in every situation. In a

case such as this, however, where a general obligation has been

recognized, a promise made and acted upon for well over 100

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years is sufficient to support an enforceable, fiduciary or

trust-like obligation upon the Crown.

The Crown's obligation, in my judgment, is to permit

aboriginal people, but subject to the general law of the

province, to use any unoccupied or vacant Crown land for

subsistence purposes until such time as the land is dedicated to

another purpose. The Crown would breach its fiduciary duty if

it sought arbitrarily to limit aboriginal use of vacant Crown

land.

As aboriginal rights were capable of modernization, so

should the obligations and benefits of this duty be flexible to

meet changing conditions. Land that is conveyed away, but later

returned to the Crown, becomes again usable by Indians. Crown

lands that are leased or licensed, such as for clearcut logging

to use an extreme example, become usable again after logging

operations are completed or abandoned.

I have also considered whether, by analogy to Sparrow, I

should mandate a justification process in order to provide a

formula for the settlement of disputes arising out of the

foregoing. I have decided I should not, both for the reasons

which follow and because the fiduciary duty the Crown assumed

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upon the extinguishment of aboriginal rights is not a

constitutionally recognized or affirmed right and is therefore

subject to the general law of the province.

Sparrow was a case where the constitutionality of a

specific net length regulation was challenged in the context of

a closely regulated industry. The issues were enviably narrow

ones: whether food fishing was an aboriginal right (the Court

of Appeal and Supreme Court of Canada found that it was), and

whether, in the federal Crown's regulation of this annual

fishery, a restriction of net length to 25 fathoms interfered

unconstitutionally with aboriginal rights, (regular gill nets

are 200 fathoms).

The Court found it could not answer the second question

because of a lack of evidence and a new trial was ordered. I

have already mentioned that the justification process mandated

by the Court for the reconciliation of the Crown's power of

regulation with the aboriginal right required, amongst other

things, legitimate Crown objectives, minimal interference with

aboriginal rights, consultation, and priorities for Indians in

the fishery subject to conservation measures. It must be

remembered, however, that the Fisheries Act and regulations

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already recognized Indian priorities.

In this case I am dealing with a situation where the

province, in the ordinary discharge of its s. 92 powers, has

been lawfully and necessarily making Crown grants of land and

issuing licenses etc., and therefore diminishing user

opportunities, on an ongoing basis since Confederation. If

Sparrow is the model then reconciliation in this case must be

more of a two way street than it was in that case.

The new trial Court (in Sparrow), will have to determine

whether this particular net length survives the particular

justification process described in the judgment. If it does,

subject to other defences, Mr. Sparrow will presumably be

convicted. If it does not, then Mr. Sparrow will be acquitted

and the Crown will either prescribe a different net length or

adopt a different form of regulation, or abandon regulation

entirely. Having regard to the other Indian and non-Indian

interests in this fishery, it is unlikely all such regulation

will be abandoned.

Whatever net length the Crown decides upon (and presumably

all its other regulations), can be challenged under the

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justification process, possibly serially, and one or more Courts

may have to measure the constitutionality of successive net

length and other regulations against the specific justification

process and possibly also measure the constitutionality of the

priorities fixed for each aboriginal group engaged in the

fishery.

This is an awkward, possibly endless, process but one which

should eventually provide an answer and fishing will continue

under current regulations while their constitutionality is being

debated because, with good management, the fish will return each

year. I doubt if the same may be said for multiple land use in

the territory where there are so many regulated and unregulated

activities and the growing cycle is so much longer even though

useable regeneration is usually measured in years rather than

decades. I do not think all these activities can be measured

and remeasured by a specific test against relatively limited

hunting, fishing, berry picking and other aboriginal gathering

activities at countless locations at all times of the year.

Considering the many opportunities which exist for conflict

in the territory, it is not possible to do much more than state

the principles which should govern the Crown's duty. What

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follows is intended to assist the parties to understand the kind

of reconciliation I believe the law expects. I shall not

presume to describe my efforts in this connection as a

justification process because I cannot be nearly as specific as

was attempted in Sparrow. What follows would be the framework

for a justification and reconciliation process I would specify

if I found the plaintiffs had continuing aboriginal interests.

As counsel will explain to the parties, the Court speaks

only through a formal written Order or Judgment which should

leave no doubt about its meaning. It is not possible to define

a complex and multi-dimensional relationship either in Reasons

for Judgment or in a formal Judgment of the Court, or to impose

such a relationship upon the parties. Nor is it generally a

judicial function to specify the terms of an ongoing complex

relationship. After the Court has identified the principles, the

parties must honourably work out their differences as best they

can.

In considering what the law expects in the circumstances of

this case, it is necessary to remember what has really happened

in the territory and what is happening now. I do not pretend

that I have precisely captured all the social and economic

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dynamics which are operating within the Gitksan, Wet'suwet'en

and non-Indian communities, nor do I expect that every observer

would necessarily reach the same conclusions as I do. I also

recognize that a trial may not always be the best way to

investigate these matters, but the evidence is the only

information I have.

In British Columbia the responsibility of the Crown has

always been a difficult one to discharge with actual conflicts

between settlers and Indians not as obvious as in other parts of

North America even though the potential for conflict was always

present because of limited agricultural land. Compared with

other jurisdictions where Indians were confined to reserves, or

their rights were purchased for a pittance, British Columbia

land policy in the territory did not usually interfere seriously

with Indian land use. Settlement, which did not begin in the

territory until the beginning of this century, was initially

confined to the Bulkley and Kispiox valleys where land

cultivation had not been pursued vigorously by many Indians.

There were no large railway land grants in the territory, and

even the pre-emption of most agricultural land did not impinge

seriously upon many aspects of aboriginal life.

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Yet there were some dispossessions and almost from the

beginning of the colony, and from the time of settlement in the

territory, it must have been obvious that the Indian population

was falling into disadvantage when compared with the then white

non-Indian community. The condition of the Indians in the

territory throughout the entire history of their association

with the European settlers has been an unhappy one with alcohol

abuse, disease, infant mortality, poverty, and a lack of many of

the benefits of civilization, particularly health, education and

economic opportunities, and the ubiquitous dependence being

usually the most serious social problems.

Indian misfortune, or at least disadvantage comparable to

present day conditions, and probably much worse, was described

by early visitors to the territory such as Brown and Ogden in

the 1820's and 30's and by Loring in the 1890's. Disease and

other misfortune arrived in the territory 70 years or so before

the settlers or the railway.

The evidence suggests the land was seldom able to provide

the Indians with anything more than a primitive existence.

There was no massive physical interference with Indian access to

non-reserve land sustenance in the territory, and there was no

forced or encouraged migration away from the land towards the

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villages. Migration away from the land has been an Indian

initiative and it started before there was any substantial

settlement in the territory.

The introduction of alcohol, disastrous epidemics and

limited economic opportunities did not result from a lack of

access to land. Loring's reports, starting about 1890 before

settlement began, describe much hardship when the Indians were

still living "on the land" even though by that time they had

access to many European trade goods which must have made life to

some degree more bearable. The acquisition of firearms, for

example, made hunting a far less random and hazardous exercise

than it had always been.

This is not to say that European influences upon Indian

life were not pervasive, but when I consider the effects of

disease, alcohol and other social insults upon the Indian

community, it is apparent that interference with aboriginal uses

of land, except for actual dispossessions, was not a principal

cause of Indian misfortune.

Further, I believe the Indians of the territory are

probably much more united and cohesive as peoples, and they are

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more culturally sensitive to their aboriginal birthright than

they were when life was so harsh and communication so difficult.

I cannot find lack of access to aboriginal land has seriously

harmed the identity of these peoples.

There is a further dimension to this question, however,

which must also be considered. I refer to the obvious spiritual

connection some Indians have with the land. I accept this as a

real concern to the plaintiffs worthy of as much consideration

as actual sustenance use. At the same time, this important

feature cannot completely be separated from sustenance because

the products of the land and waters of the territory are an

integral part of that spiritual attachment.

Except in rare cases, there should be no difficulty

obtaining sufficient fish, game and other products from most

areas of the territory not just for desired levels of sustenance

but also for spiritual purposes. In this respect I pause to

mention that the salmon of the great rivers pass right alongside

the principal villages and one need not travel far from the

villages to reach wilderness areas where game can usually be

taken. There is much wood left in the territory and it can be

obtained far more easily with chain saws, snowmobiles and 4 x

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4's than in earlier days. Anyone can now travel with much

greater ease to whatever parts of the territory he or she may

wish for the purpose of gathering what is required for

sustenance or ceremonial purposes.

I appreciate that it may be difficult or impossible to

obtain game and other resources at every exact place from where

they were formerly obtained, particularly in built-up areas such

as New Hazelton, Smithers, Houston and Burns Lake which are

occupied principally by non-Indians and which were not

prominently the sites of native villages. This is unfortunate,

but the same applies, I am sure, near the Indian's own villages

particularly as Indian populations increase. Fortunately, it is

a very large country with enormous wilderness areas.

What has been lost, perhaps, is the spiritual connection

not with land, but with control or belief in ownership of land.

I say this because access to land has usually been available to

the Indians, and much of it still is, or will be again. For

this purpose, the loss of ownership or belief in ownership

includes the spiritual connection these peoples have with the

land. This loss occurred at the time of sovereignty. For the

reasons I have already given, it is not a matter for which the

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Court can provide a remedy. It is, however, a matter the Crown

should take into consideration in deciding how it will proceed

with the development of the province and its resources.

I recognize that some Indians greatly regret that they no

longer live off the land. Most of them, however, particularly

the young people, no longer wish to do that. When the price of

furs dropped in 1950 those still on the land moved to the

villages. Most Indian sustenance and ceremonial requirements

are almost as conveniently available as they ever were. In

addition, they have access to a great many advantages which were

not formerly available to them.

The plaintiffs are also troubled because they have not

progressed equally with some of the "newcomers," and because

they have not been able, for many real and intangible reasons,

to share the opportunities they think they should have to the

commercial use of the land and to the prosperity they think

should accrue to them from the land they truly believe is their

own. There is evidence which satisfies me the plaintiffs, if

completely successful in this action, would seek to exploit the

resources of the territory for their own account. They say they

would do this better than it is presently being done but I

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cannot express any opinion on that question. There is a

relentless correlation between economics and environmental

sensitivity and one must have all the factors of the equation

before any opinion can be expressed on that difficult question.

It was not an easy decision, I am sure, when the Moricetown Band

was advised to clear cut its timber lands in order to provide

economic employment for its members.

These understandable aspirations to control the development

of the territory do not fall within the rubric of the

plaintiffs' continuing use of the territory as might have been

the case if they had succeeded on the issues of ownership and

jurisdiction. At the same time, the Indians must realize the

importance of creating public wealth from the territory as they,

like so many members of the non-Indian community, are heavily

dependent upon public funding for every day sustenance.

Having stated some of the factors I would have included

in a justification process, I propose to state some propositions

for the assistance of the parties considering their positions on

the fiduciary duty I have identified.

First, the federal and provincial Crown, each in its own

Part 15.

Extinguishment and Fiduciary Duties

711

__________________________________________________________________

jurisdiction, always keeping the honour of the Crown in mind,

must be free to direct the development of the province and the

management of its resources and economy in the best interests of

both the Indians and non-Indians of the territory and of the

province. I reach this conclusion because firstly, it states no

more than I have already established as a principle that the

province has the legal right to alienate interests in the

territory; and secondly because even in the case of a continuing

aboriginal right the Court in Sparrow specifically stated that

the objective of the justification process:

"...is not to undermine [the Crown's]

ability and responsibility with respect to

creating and administering overall

conservation and management plans regarding

the salmon fishery." (my emphasis)

It would seriously undermine the ability of the Crown to

manage the resources of the territory if, subject to what

follows, it did not have the ongoing right to develop or

alienate the land and resources of the province.

Secondly, the Ministers of the province and their officers

Part 15.

Extinguishment and Fiduciary Duties

712

__________________________________________________________________

should always keep the aboriginal interests of the plaintiffs

very much in mind in deciding what legislation to recommend to

the legislature, and what policies to implement in the

territory. There should be reasonable consultation so that the

plaintiffs will know the extent to which their use might be

terminated or disturbed. A right of consultation does not

include a veto, or any requirement for consent or agreement,

although such is much to be desired.

Thirdly, the province should make genuine efforts to ensure

that aboriginal sustenance from and cultural activities upon

unoccupied Crown land are not impaired arbitrarily or unduly.

If that should occur from time to time then suitable alternative

arrangements should be made. It must be assumed there will

often be interference because the most likely tension will be

between forestry operations and sustenance rights. Most of such

interference should not be permanent in any particular area of

the territory and these competing interests must be reconciled.

I do not suggest these are the only tensions which will

arise for there are also conservation and environmental

questions. Those are matters in which the plaintiffs along with

the rest of the public have a vital interest. The plaintiffs'

Part 15.

Extinguishment and Fiduciary Duties

713

__________________________________________________________________

conservation and environmental concerns are not sufficiently

distinct from their subsistence activities to make it necessary

for me to deal with them separately. I wish unequivocally to

state that I do not regard general conservation and

environmental matters to be an issue in this case, and I do not

wish to be taken to be pronouncing upon them in any way.

Fourthly, whether any proposed or resulting interference

offends unduly upon aboriginal activities and brings the honour

of the Crown into question will in large measure depend upon the

nature of the aboriginal activity sought to be protected and the

extent it is ordinarily exercised; the reasonable alternatives

available to all parties; the nature and extent of the

interference; its duration; and a fair weighing of advantages

and disadvantages both to the Crown representing all the

citizens and to the Indians. While the Court in Sparrow gave

the Crown a clear message that it must take aboriginal rights

seriously, (which admonition, translated to user rights, should

also be read into this judgment), the plaintiffs' aboriginal

activities in the territory, which they have exercised only

marginally for many years, will seldom be the only

responsibility the Crown has to discharge.

Part 15.

Extinguishment and Fiduciary Duties

714

__________________________________________________________________

In this connection, I must respectfully depart from what

was said in Sparrow about the public interest. Food fishing for

salmon is critical to aboriginal sustenance and in such a narrow

area of activity the Court considered that the public interest

was either too uncertain, or it was necessarily sublimated to

the particular aboriginal interest the Court was defining. This

case is quite different because of the multi-dimensional

activities operating in the territory and their breadth, both in

area, time and range of activities is so much greater than the

operation of a seasonal, localized fishery.

Fifthly, notwithstanding what I have just said, I would

expect the province to provide some sustenance priority to

Indians in the use of vacant land to the extent permitted by The

Charter. Perhaps it already does. This will become most

important if shortages of game arise not just in specific areas,

but in the area generally. If that should occur then Indians

should have priority for such game and other sustenance items

over non-Indians after the requirements of reasonable

conservation have been satisfied. This is not to say the

plaintiffs will always have priority over other Crown authorized

activities in the territory. Those kinds of conflicts may well

arise from time to time, and they must be resolved honourably

Part 15.

Extinguishment and Fiduciary Duties

715

__________________________________________________________________

and reasonably. A reasonable decision is usually an honourable

decision.

Sixthly, while I would not purport to define what legal

proceedings may be brought to challenge Crown activities

authorized by provincial legislation, I am satisfied it would

not have been the expectation of the Supreme Court of Canada, if

it had dealt with this case, that Crown authorized activities in

such a vast and almost empty territory would often give rise to

legal proceedings.

In fact, unlike Sparrow which dealt only with a single

issue in a regulated fishery, challenges regarding conflicts

between Indian use and competing activities should be confined

to issues which call the honour of the Crown into question with

respect to the territory as a whole. Local operating decisions

such as to log a block here, or build a road there, should

surely not call for judicial intervention.

This is because it is not the law, or common sense, nor is

it in the interest of the people of the province or of the

plaintiffs that the development, business and economy of the

province and its citizens should constantly be burdened by

Part 15.

Extinguishment and Fiduciary Duties

716

__________________________________________________________________

litigation or be injunctioned into abeyance by endless or

successive legal proceedings. Proper planning and appropriate

consultation with, or disclosure to, the plaintiffs or their

advisors, and reasonable accommodations on all sides, should

make the difficulties I have just mentioned unnecessary.

Because of all the foregoing, I do not think it will be

wise for me to construct a justification process. In my

judgment the range of potential competition is too vast for a

pre-determined procedure. I believe the law relating to

fiduciary duties is better able to resolve these questions than

any specification I could devise. The operating word must be

reconciliation rather than justification.

5.

Conclusions

(1) In my judgment the plaintiffs' aboriginal interests in

the territory were lawfully extinguished by the Crown during the

colonial period.

(2) It follows that non-reserve Crown lands, titles and

tenures granted by the Crown in the territory since the creation

Part 15.

Extinguishment and Fiduciary Duties

717

__________________________________________________________________

of the Colony of British Columbia in 1858 are unencumbered by

any claim to aboriginal interests.

(3) The plaintiffs are entitled to a declaration that the

Gitksan and Wet'suwet'en peoples are entitled, as against the

Crown but subject to the general law, to use unoccupied, vacant

Crown lands within the territory for aboriginal sustenance

activities until it is required for an adverse purpose. I limit

this declaration to the territory because that is the only land

which is in issue in this action but I see no reason why it

should not apply to the province generally.

Part 15.

Extinguishment and Fiduciary Duties

718

__________________________________________________________________

PART 16. DAMAGES

The plaintiffs, hunting for much larger game, did not

directly attack any specific provincial legislation or

regulation affecting aboriginal interests in the territory.

Instead they sought declarations of ownership and jurisdiction

to which I have added ongoing aboriginal rights. If the

plaintiffs had succeeded in obtaining such declarations on their

first three heads of claim they would have contended they are

entitled to damages for the consequences of all interference

with the territory although that would not follow automatically

as the province advanced other defences which would then have to

be considered.

These broad issues were undoubtedly the ones the plaintiffs

wished to have tried in this action, and I well understand why

they advanced their claim in that way.

As the plaintiffs have failed on these issues, and as I

have reached the opinion that the province has all along had the

authority reasonably to terminate or diminish user rights in the

Part 17.

The Lands Subject to Aboriginal Rights at the

Date of British Sovereignty

719

__________________________________________________________________

territory, it follows that the plaintiffs' claims for communal

damages must be dismissed.

Although this claim for damages is a communal claim, it has

been brought by individuals and personal claims could be

included although they are not specifically pleaded. I do not

recall any individual claims other than general complaints about

reduced hunting and fishing opportunities and some

dispossessions in the early years of this century. The

plaintiffs did not press these claims in argument and I

understand the rights asserted against the Indians arose under

what I must assume was valid Canadian or British Columbia

legislation. I am satisfied the plaintiffs have not established

any claims for damages in this action.

It is accordingly unnecessary to deal with the defences

raised by the province under the Crown Proceeding Act, 1974,

S.B.C. c. 24 (which would have precluded recovery for damages

incurred prior to the effective date of that enactment on Aug.

1, 1974), or under the Limitation Act, 1979, B.S.B.C. c.236

(which would have precluded damages except perhaps those

incurred within 2 years of the date of the Writ in 1984 of which

Part 17.

The Lands Subject to Aboriginal Rights at the

Date of British Sovereignty

720

__________________________________________________________________

there is no specific evidence.

Although it was not argued, I have considered whether any

compensation should be payable to plaintiffs either for reduced

reserves, or for interference with Indian use of vacant Crown

land. With regard to the former, I am aware of many aboriginal

complaints throughout the province about reductions in reserves,

but no such claims were advanced in this case. Instead, I refer

to the failure to allot larger reserves. Again, no such claims

were pleaded, and no evidence or argument was directed to that

question.

The evidence is that reserves were allotted and furnished

by the province pursuant to its obligation under the 13th of the

Terms of Union with Canada, and Canada has acknowledged that

British Columbia has satisfied its obligations in that

connection. Apart from that, there is no evidence that any

particular reserve should have been allotted or increased in

size, and no basis has been shown upon which I could make an

award of damages.

I have already offered the comment that larger reserves

Part 17.

The Lands Subject to Aboriginal Rights at the

Date of British Sovereignty

721

__________________________________________________________________

should have been allotted, but I have also commented that the

Indians did not always help their own cause. The evidence does

not permit me to make an award in this matter. It is my view,

as I have no jurisdiction to create reserves, that the

plaintiffs' claims for larger reserves or compensation in their

place is a matter for the Crown, and not for the Courts. There

is no legal basis upon which I can assist the plaintiffs in this

connection.

With regard to interference with aboriginal life, the

evidence is similarly sparse. There were dispossessions, and

interferences, such as when beaver dams were destroyed in the

Bulkley Valley, and there were other incidents. The evidence

does not disclose, however, whether such interference was by the

Crown or by private citizens, or under statutory authority, nor

was any arbitrary interference as I have defined it established

by evidence. Apart altogether from the strictly legal defences,

there is insufficient evidence to conclude that the plaintiffs

have established a cause of action for damages or compensation.

I am satisfied that it would not be proper to make any

award of damages in this case and that claim is dismissed.

Part 17.

The Lands Subject to Aboriginal Rights at the

Date of British Sovereignty

722

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Whether the plaintiffs should be compensated for any of the

matters mentioned in the evidence is a matter for the Crown, not

for the Court.

Part 17.

The Lands Subject to Aboriginal Rights at the

Date of British Sovereignty

723

__________________________________________________________________

PART 17. THE LANDS SUBJECT TO ABORIGINAL RIGHTS AT THE

DATE OF BRITISH SOVEREIGNTY

1. General

It is now necessary to delineate the areas within the

territory which were subject to aboriginal rights at the date of

British sovereignty and prior to extinguishment. This is

necessary in case I am wrong in the conclusions I have expressed

in Part 15 of this judgment.

2. The External Boundary

In their original Statement of Claim dated October 23,

1984, the plaintiffs alleged:

"56. The Plaintiffs have owned and

exercised jurisdiction over the lands

described in Schedule "A" and set out on the

map attached as Schedule "B" (hereinafter

Part 17.

The Lands Subject to Aboriginal Rights at the

Date of British Sovereignty

724

__________________________________________________________________

referred to as "the Territory").

Schedule "A" to the original Statement of claim was a 19

page single spaced metes and bounds description of the external

boundary as the plaintiffs then believed it to be. The

description of the territory was changed several times before

and during the trial. The metes and bounds description was

changed once or twice during the pre-trial period, but I do not

believe it was changed with every subsequent alteration of the

external boundary. I do not propose to comment further upon the

metes and bounds description as nothing turns on it and the

amended maps exhibited at trial more conveniently explain the

subject matter of plaintiffs' para. 56. allegations.

Before I describe the various amendments to Schedule B, I

should mention that prior to this action, the Gitksan-Carrier

Tribal Council made a submission to the Honourable Hugh

Faulkner, Minister of Indian Affairs, dated November 7, 1977, to

which was attached a map showing the alleged external boundary

of the lands they claimed including the lands alleged in this

action to belong to the Kitwankool chiefs. This map is Ex. 113,

and Ex.646-1. It generally conforms to the later maps but is

Part 17.

The Lands Subject to Aboriginal Rights at the

Date of British Sovereignty

725

__________________________________________________________________

different in detail. For example, the south external boundary

is north of Ootsa Lake and Tahtsa Reach.

Schedule "B" to the Statement of Claim was prepared from

information collected by Mr. Neil B. Sterritt and others. On

the basis of this information Mr. Marvin George, a qualified and

competent cartographer, actually prepared the Schedule "B" map.

It showed only the then alleged external boundary of the

territory and it excluded the Kitwankool lands.

Schedule "B" was generally conformable to the outline of

the 1977 map, except for many adjustments and the two boundaries

hardly coincide except in the north-east and north-west.

Substantially less land is claimed in the coast mountains of the

south-west, and substantially more is claimed in the south and

south-east. As mentioned, the 1977 boundary ran north of Ootsa

Lake and Tahtsa Reach and it only included the west half of

Francois Lake. The Schedule "B" boundary was at the height of

land south of Ootsa Lake and included nearly all of Francois

Lake. As will appear later, there are many inconsistencies in

the plaintiff's territorial evidence. I would not have thought

there would ever have been any doubt about the question of

Part 17.

The Lands Subject to Aboriginal Rights at the

Date of British Sovereignty

726

__________________________________________________________________

whether Wet'suwet'en lands included such prominent and enormous

features as Ootsa and Francois Lakes.

Also, there was a substantial adjustment in the Bear Lake

area which had been partly excluded from the 1977 territory but

was included in Schedule "B." Bear Lake is another extremely

prominent geographical feature.

Neither of these two maps purported to show internal

boundaries.

On April 1, 1985, the plaintiffs amended Schedule "B" by

producing a fresh map which generally conformed to the original

Schedule "B" but with many minor adjustments. The most

substantial difference was the inclusion of a large enclave

claimed by Geel on the northern boundary which had been excluded

in the earlier two maps. This change was satisfactorily

explained on the basis that Geel was unable to get instructions

from House members in Vancouver in time to join in the earlier

claims. This map showed no internal boundaries.

There is another map dated October 17, 1985, which became

Part 17.

The Lands Subject to Aboriginal Rights at the

Date of British Sovereignty

727

__________________________________________________________________

Ex. 646-4 which showed some internal boundaries.

In 1986 Mr. Marvin George prepared a large map (Ex. 101,

adapted from Ex. 100) which purported to show overlaps in the

lands claimed by the plaintiffs and by the Carrier-Sekanni

Tribal Council. This was for the purposes of an All Clans feast

at Moricetown on April 6, 1986. The Wet'suwet'en chiefs relied

upon this map as an accurate representation of their

territories. It shows substantial overlap claims alleged on

behalf of the Carrier-Sekanni, including much of the southern

territory claimed by the Wet'suwet'en chiefs in this case as

well as other disputed areas along the north-east boundary of

the territory, particularly at Chapman and Bear Lakes, and

further north.

During the pre-trial period the province delivered

interrogatories to all or a great many plaintiffs requiring a

description of the lands claimed by the plaintiff to whom the

Interrogatory was delivered. Many of the plaintiffs answered

such question under oath by reference to sketches marked

"Draft," attached to their answers. Neil Sterritt testified

that in 1987 he believed these interrogatory sketches accurately

Part 17.

The Lands Subject to Aboriginal Rights at the

Date of British Sovereignty

728

__________________________________________________________________

described internal boundaries.

Few, if any, of these sketch maps accorded closely to the

evidence adduced by or on behalf of these plaintiffs at trial,

and some were markedly different. The plaintiff's explanation

was that these were preliminary drafts prepared before detailed

research was completed.

In March, 1987 Mr. Sterritt caused a further map to be

prepared which became Ex. 646-6 at the trial. It shows internal

boundaries and, (a) substantially reduced land claims on the

north boundary; (b) an addition in the Kwinageese area on the

north-west boundary; and (c) a deletion at Chapman Lake

apparently agreed upon at the All Clans Feast. Many of these

internal boundaries were later amended. This map was not

tendered as an amended Schedule B.

At the opening of the trial the plaintiffs tendered an

amended Schedule "B" which became Ex 681. It confirmed the

changes shown on Ex. 647-6 just mentioned, and also deleted a

large area, know as Nii Kyap's territory at the north-east

corner of the territory. It also adjusted the central easterly

Part 17.

The Lands Subject to Aboriginal Rights at the

Date of British Sovereignty

729

__________________________________________________________________

boundary by adding a small area just north of the Chapman Lake

deletion. The plaintiffs also produced a colour coded draft map

of the individual territories claimed by the plaintiffs, which

were later substantially changed. This map, originally

designated as Ex. 5 for identification, became Ex. 646-8 in the

plaintiff's collection of maps which were admitted into evidence

at trial. Although the plaintiffs believed it accurately

described their internal boundaries at the commencement of the

trial, it was stated to be a draft and these internal boundaries

underwent substantial revision as the trial progressed. The

plaintiffs say it should be considered only as a draft.

Shortly after the commencement of the trial, when it became

obvious that it would take almost forever for the plaintiffs to

prove all their internal boundaries by oral testimony, although

some witnesses had attempted to do so, the plaintiff's sensibly

proposed that they would adduce most of their internal boundary

evidence by what became known as Territorial Affidavits sworn by

chiefs respecting their own territories or territories with

which they were familiar. This was done and 53 of these

affidavits were filed some of which sought to establish the

boundaries of several individual territories. 30 of these

Part 17.

The Lands Subject to Aboriginal Rights at the

Date of British Sovereignty

730

__________________________________________________________________

deponents were cross-examined out of Court. Several more were

cross-examined in Court.

Finally, after the completion of their territorial

affidavit project the plaintiffs filed Exs. 646-9A and 646-9B

which purport to describe the final internal and external

boundaries of the Gitksan and Wet'suwet'en chiefs respectively.

The Statement of Claim was also amended to substitute these 2

maps for Schedule "B."

As the final external boundary is merely the result of all

the internal boundaries, it is changed somewhat from the

previous maps, the most significant change being the re-

instatement of the Nii Kyap territory and other adjustments on

the east border of the Gitksan territories.

The foregoing is a very brief, incomplete and general

description of the external boundaries advanced from time to

time by the plaintiffs during the course of these proceedings.

It is not at all surprising that there would be changes in the

presentation of such a vast concept, but where the validity of

the claim depends upon a reputation of title, or its equivalent,

substantial changes raise serious questions about whether a

Part 17.

The Lands Subject to Aboriginal Rights at the

Date of British Sovereignty

731

__________________________________________________________________

reputation has been proven to the extent required by law.

3.

The Internal Boundaries

Internal boundaries, as shown of Exs. 646-9A and 9B, are

far more significant. With them, as well, there have been

significant changes which I must now proceed to consider in much

greater detail.

I find this a most difficult part of this case. This is

because, in addition to considering counsel's analyses, I have

had to consider not just the details, where legal truth may

usually be found, but also the broad sweep of the evidence. At

the end of the process I am left in a state of much uncertainty.

(a) General Discussion

As I have said, the plaintiff's final position on their

internal boundaries is depicted on Exs. 646-9A and 9B, which are

Part 17.

The Lands Subject to Aboriginal Rights at the

Date of British Sovereignty

732

__________________________________________________________________

reproduced earlier in this judgment (Maps 3 and 4). It can

readily be seen that this patchwork covers every square foot of

the territory. This result was obtained by a long and tortuous

process which I shall detail in a moment.

As I have mentioned earlier, there is evidence that Brown,

Ogden and other early traders in the territory found or heard

about Indians living in villages on the great rivers. These

probably included, with reasonable but not absolute certainty,

the Skeena villages of Kitwangak, Kitseguecla, Kispiox, Kisgegas

(or nearby villages), Old and New Kuldo, and the Bulkley

villages of Hagwilget and Moricetown.

There is less certainty about Gitanka'at, Gitenmaax

(Hazelton), K'sun and Gitangasx. Temlaxan and Dizkle, which

feature so prominently in Gitksan and Wet'suwet'en oral

histories, were not proven to have existed. They had

disappeared by the time the early traders arrived in the

territory and archaeologists have found no convincing evidence

about them.

I believe Indian villages once existed at all these sites

Part 17.

The Lands Subject to Aboriginal Rights at the

Date of British Sovereignty

733

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except Temlaxan and Dizkle. I have seen the clearings where

Gitangasx, and Old and New Kuldo were located, and Loring's

reports demonstrate the existence of K'sun in the 1890's.

Equivocal, undated archaeological findings (mostly cache pits)

have been made at or near several of these sites including

Gitanka'at and Gitangasx. There is no reliable evidence of any

other substantial villages and practically no evidence of

villages except Hagwilget and Moricetown in Wet'suwet'en

territory.

I am not able on the evidence to find when these locations

became village sites or precisely when some of them were

abandoned. Certainly there were villages in the vicinity of

Kisgagas in the 1820's, but that name, Kisgagas, does not appear

in Brown's reports. He heard of villages up river of the

Babine-Skeena forks, probably the Kuldos or possibly the more

distant Gitangasx. He also heard reports about larger villages

to the west which could have been Kispiox, Kitseguecla and

Gitwangaak. Certainly those villages existed in the mid 1800's

and I suspect long before that. There are few reliable

references to Hazelton until the mid 1800's.

Apart from Kitseguecla, where fishing seems to be good, the

Part 17.

The Lands Subject to Aboriginal Rights at the

Date of British Sovereignty

734

__________________________________________________________________

other villages are strategically located at canyons where

fishing is easiest, or at important river forks. There seems to

be good reasons for villages to be situated at these locations.

I am constrained to conclude that there probably were

villages at most of these sites for a long, long time before the

arrival of European influences in the territory but I wish to

make a few comments. First, I do not find it necessary to

review the conflicting evidence about Hazelton. It is so close

to the canyon at Hagwilget that Indians may well have preferred

the latter as a fishing site. Its proximity to such a proven

location makes a specific finding unnecessary.

Secondly, it appears that the main reasons for these

villages, except possibly for defensive or strategic reasons,

was probably easy access to a principal food resource which was

salmon. Neither people were particularly fond of game animals

for food, and beaver was not plentiful. Every village is

situated within a territory alleged to belong to a specific

chief or House. For example Hagwilget is within the territory

of Spooke; Kisgegas is in the territory of Tsa Bux; and

Part 17.

The Lands Subject to Aboriginal Rights at the

Date of British Sovereignty

735

__________________________________________________________________

Moricetown is in the territory of Wah Tah Keg'ht. These and the

other villages are also within Indian reserves. These reserves

sometimes includes portions of territories allegedly owned not

just by the village chief, but also by one or more other chiefs

or Houses. I find it incomprehensible that these reserves could

have been established, and reviewed by the McKenna-McBride

Commission without, so far as I can ascertain, it ever being

suggested that these lands were the private preserve of just a

few of these peoples.

Thirdly, there are some references in the oral histories

collected by Barbeau, Baynon and others, which, in the

plaintiff's submissions, suggest long time use and occupation of

specific lands. Sometimes this includes associations with

crests and other circumstantial connections with land. The

evidence of Art Mathews Jr. (Tenimgyet) about the bears in his

House crest is an example of this and there are others. In my

view these are not sufficiently precise as to location to found

a conclusion of specific long time occupation. In many cases

what is described in these histories could have occurred almost

anywhere in the territory.

Part 17.

The Lands Subject to Aboriginal Rights at the

Date of British Sovereignty

736

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Fourthly, although the Gitksan and Wet'suwet'en had well

established trails permitting visiting with other villages and

people, as evidenced by the trail maps marked in evidence, there

was little reason for the Gitksan to stray far from their

villages or principal rivers in the Skeena, Kispiox and Babine

River Valleys except to visit other villages and for journeys

along the grease trail through the Kispiox or Cranberry Valleys

to the Nass to get oolichan oil.

Similarly, the Wet'suwet'en also had contacts with

adjoining people in all directions, particularly the Babine, but

they were known as the people of the Morice and lower Bulkley

Rivers. There was little reason for them to stray far from

their canyon fisheries at Hagwilget, (which they only occupied

in the early 1820's), or Moricetown which was then called Kyah

Wiget. It is just as likely the Babine would visit them where

fish was more plentiful. There is a singular lack of any

reliable evidence of pre or proto-historic Wet'suwet'en living

in or occupying sites in the southerly part of the territory and

no particular reason for them to have done so. There is

evidence of occupation at places like Pack Lake, and Sam Goosley

Lake in the early years of this century, but no objective

Part 17.

The Lands Subject to Aboriginal Rights at the

Date of British Sovereignty

737

__________________________________________________________________

evidence of when such occupation commenced. There was, in fact,

little reason for the Wet'suwet'en to have lived far from the

Bulkley villages with which they all seemed to have connections.

There is anthropological evidence that the Wet'suwet'en were a

"one village people", presumably at Moricetown.

Fifthly, as I have already mentioned, there is a strong but

not unanimous body of anthropological opinion including Goldman,

Steward, Kobrinski, Jenness, Robinson and Father Morice that the

social and economic organization of these peoples was likely a

response to the fur trade which I have already discussed.

Earlier, I mentioned the opinion of Dr. McDonald that there was

much destabilization in the area in the 1700's. Even Dr. Ray at

one time agreed with these experts but changed his opinion

because of the information he gained from the Hudson's Bay

Company records. That there are differing opinions is not

surprising.

While I am happy to leave these fascinating questions to

the academic community, I conclude the evidence raises serious

doubts about the time-depth of particular Indian presence in

distant territories, that is away from the villages. It is

unlikely that the plaintiffs' ancestors, prior to the fur trade,

Part 17.

The Lands Subject to Aboriginal Rights at the

Date of British Sovereignty

738

__________________________________________________________________

would occupy territories so far from the villages, particularly

in fierce Canadian winters.

This theory is well supported by a large number of

reputable experts and casts doubts upon the plaintiff's position

that many of the far north and far south territories claimed by

many chiefs were used for as long as they allege.

Sixthly, there is evidence that at an early stage of the

preparation of their boundary evidence the plaintiffs themselves

decided to base their claims upon trapline information. An

examination of the trapline boundaries, such as those shown on

Ex. 1243-G, and other trapline information, of which Tsabux

Namox - Goosely Lake, Kweese - Burnie Lake, Gisdaywa - Owen

Lake, Antegiliubx North - Upper Kispiox River, Wiigyet -

Chipmunk Creek, Nii Kyap - Malloch Creek, Samooh - Tahtsa Lake,

Knedebas, and others show a remarkable correlation with trapline

boundaries.

I appreciate that the trapline information is taken from

metes and bounds descriptions, and lacks some precision, but I

am satisfied the efforts to translate these descriptions onto

Part 17.

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maps is sufficiently accurate to demonstrate striking

similarities between internal boundaries and trapline

registrations.

It is true that trapline registrations only began in 1926

when Indians were encouraged to register the traplines they were

using so as to avoid the fur trade equivalent of claim jumping.

Mr. Sterritt, in Ex. 384 concedes this correlation, stating that

"...Gitksan traplines became a sort of official provincial

register of the Gitksan hereditary system of land ownership that

exist to this day." It is far more probable, in my view, that

the internal boundaries advanced in this case arose from the

traplines rather than the other way around. The existence of so

many non-Indian owned traplines in the area, and the failure,

until recently, of some Indians to retain these traplines for

their Houses raises serious questions about the claims of Houses

to specific lands.

While there are many differences between internal

boundaries and trapline registrations, there are also so many

similarities that I am driven to conclude, on this ground, as

well as on other grounds, that the source of many internal

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boundaries was not indefinite, long use prior to European

influences, but rather from fur trade user which began after the

arrival of European influences in the territory. It cannot be

said that the balance of probabilities on this issue favours the

plaintiffs.

Lastly, in this series of observations about the internal

boundaries, I listened with the greatest possible care to the

evidence and arguments of counsel but when I look at Exs. 646 -

9A and 9B, I am unable to accept that such a complete and

intricate Balkinization of this vast area could probably be

accurate. There was no reason, until the fur trade, for these

people to have any boundaries, and the unusual shape of some of

the territories leads me to doubt their authenticity. As

examples, I need only mention the Wiigyet - Kuldo and Deep Canoe

Creek Territory in the north central part of the territory, and

Goohlaht in the south-west. They and many others appear to be

excessively gerrymandered or artificial which seems

inappropriate for an aboriginal society.

Further, I am troubled by the fact that so many chiefs

claim so many different, widely scattered territories.

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Gyologyet's 3 territories span over 80 miles in a north-south

direction but at least they are adjacent. Wiigyet claims 5

territories; Wii Minosik claims 4 widely scattered territories;

Miluulak claims 4 territories; Hagwinlegh claims 5 territories

stretching from west of Smithers to south of Burns Lake; and

Ghoohlaht's 3 territories almost cross the southern part of the

territory, a distance in excess of over 100 miles and he also

claims one territory east of Moricetown.

It would not be fair for me to conclude that the above is

inconsistent with Indian custom or practice for there is no

evidence to that effect, and I must not see with uncultured eyes

what may not be there. Viewed with judicial eyes, however,

these considerations alert me to be cautious, and to scrutinize

the evidence with great care. I am left, as I have said, with

much uncertainty about these internal boundaries, particularly

when the process in which they were prepared has not been

objective.

I turn to another series of arguments which also lead me to

conclude that the internal boundaries are not reliable

indicators of aboriginal use. First, however I wish to mention

the great emphasis placed by the plaintiffs upon the importance

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of these internal boundaries and the steps taken by the

plaintiffs to collect the evidence necessary for the proof of

these boundaries.

In his opening, Mr. Rush stressed the detailed knowledge of

the chiefs about their individual territories. He said,

"In order for Chiefs to perform their

role as witnesses to this distinctive form

of public acknowledgement of land title,

they are trained by their predecessors in

the boundaries of their own House's

territories, and the boundaries of the

territories of their neighbours, and those

with whom they are socially closest."

On this basis it would be reasonable to assume that the

evidence necessary for this case, although voluminous, could be

assembled without undue uncertainty.

What happened is that, beginning in 1973, following the

Calder case, the plaintiffs began thinking about their

boundaries, and they employed Mr. Sterritt to start collecting

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information by looking at maps prepared by Chris Harris (who

died in 1975), and by talking to chiefs, and making notes of

their evidence.

Gradually, information was collected from interviews and

casual conversation, (without regard, I am sure, to the hearsay

rule of evidence), and by numerous field trips. This

information was transferred to Marvin George, a skilled

cartographer, who prepared most of the maps I have already

mentioned and a great many others.

This process eventually led to the preparation of the

internal and external boundary maps presented or disclosed prior

to the commencement of the trial.

The trial started in May of 1987 in Smithers and continued

there for 6 weeks ending in June, 1987. It was then adjourned

to be continued in Vancouver. During the time in Smithers the

plaintiffs were only able to complete the evidence of 3

principal witnesses, Mary MacKenzie (Gyolugyt), Mary Johnson

(Antgulilbix), and Olive Ryan (Gwaans, of the House of

Hanamaxw). In addition, during that 6 week period, some of the

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evidence in chief of Alfred Joseph (Gisdaywa), was taken, but

his evidence could not be completed before the end of June.

Each of these 4 witnesses gave detailed evidence about the

internal boundaries of their territories, or the territories of

their Houses even though some of them had little personal

knowledge, but it was apparent, if the internal boundaries of

all of the territories of all of the Houses were to be proven by

viva voce evidence, that the trial would be much longer than was

then anticipated. The estimated length of the entire trial was

then estimated to be 13 months.

For this reason, and as mentioned above, the plaintiffs

responsibly agreed to prepare Territorial Affidavits for most of

the Chiefs which is a process authorized by Rule 40 (44).

It will be useful to quote the precise order made in this

connection, dated Oct. 23, 1987"

"THIS Court FURTHER ORDERS that the

Plaintiffs be at liberty to adduce, by

affidavit, evidence of facts or documents

relating to the location, boundaries and

geographic landmarks of the territories

claimed by the Plaintiffs and their Houses,

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but that the Plaintiffs not be precluded

from arguing from such facts, or based upon

such facts, that an inference of ownership

be drawn.

THIS Court FURTHER ORDERS that the

deponents be available for cross-examination

at trial or on commission, as may be agreed

upon, or as may be ordered in due course."

The defendants did cross-examine some territorial deponents

on their affidavits. I have no doubt this process saved a great

deal of time at trial. The plaintiffs reserved the right to

adduce internal boundary evidence from some witnesses and they

did so in some cases.

(b) The Preparation of Territorial Affidavits

These Territorial Affidavits were prepared under the

direction of Neil Sterritt, Marvin George and other researchers.

They are largely in the same form. An example is Schedule 5, a

photo copy of Ex. 605, which is the Territorial Affidavit of

Walter Blackwater, (Diisxw). It describes 8 territories claimed

by 7 different chiefs who, for convenience, did not submit

separate affidavits or give evidence at trial. I believe Ex.446

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the Territorial Affidavit of Stanley Williams (Gwis Gyen), which

covers 24 territories claimed by 11 different chiefs, is the

most comprehensive of all of the Territorial Affidavits.

I have no doubt the Territorial Affidavits represent the

best efforts of the plaintiffs to prove a vast collection of

facts from which they argue I should infer exclusive long time

use by individual Houses of the specific lands described in the

affidavits and depicted on Exs. 646 - 9A and 9B. I accept that

the plaintiffs have done their very best in this endeavour, and

that these affidavits constitute the best evidence they could

adduce on this question of internal boundaries.

Unfortunately, the task seems to have been too much for

them. In the analysis which follows I shall not find it

necessary to refer to all of the many arguments advanced by all

the parties or to discuss them in nearly the same detail as they

did.

(c) Discussion

Firstly, the defendants attack the process by which these

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affidavits were prepared. The plaintiffs purport to rely

heavily upon declarations made by deceased persons, yet it is

obvious that Mr. Sterritt and others had been engaged for over

10 years collecting information from a mixture of witnesses some

deceased and some still alive at the time of the affidavit

project. During this process, there has been much intense

discussion within the Indian communities about the collection of

this information for land claim purposes. This deprives the

process of the objectivity which would have added confidence to

it.

As mentioned, many maps and draft interrogatory sketches

were prepared before the affidavit project began. Many of these

documents are markedly at variance with the later maps and it is

impossible to be confident the affidavits are all based upon

information obtained only from personal knowledge or deceased

declarants. Further, of course, the credibility of later

alleged reputations is seriously weakened by earlier, different

assertions of ownership or use.

Thus Antgulilbix, in her Interrogatory Sketch, and in all

the maps prepared before the start of the trial, alleged her

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House was the owner of territory near Kispiox while at trial she

agreed a part of it was owned by a different chief, and there

are many similar instances of changed reputations.

Also, it is obvious that living witnesses cannot prove long

time use from personal knowledge. It accordingly became

necessary for the plaintiffs to rely upon the reputation

exception to the hearsay rule to prove a reputation for long

time use or occupation by declarations made by deceased persons.

The defendants attack this process by reference to the fact

that most deceased declarants known to living witnesses could

not likely prove a reputation for long time use of specific

territory far enough back in time to establish the plaintiff's

case. In this respect the defendants rely upon the evidence of

anthropologists who tend to doubt knowledge of genealogy, let

alone specific land use, beyond 100 years or so.

An example of the difficulty in this connection is Ex. 605,

the Territorial Affidavit of Walter Blackwater (Diisxw), of the

House of Niist, relating to the Galaanhl Giist territory, known

as Slamgeesh River, in the north central portion of the Gitksan

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territory. According to Mr. Blackwater, he was told about this

territory and its boundaries by his grandfather, the late Moses

Stevens (Dawamuxw), by his grandmother Esther Stevens (Asgii),

by his mother Mary Blackwater (Diisxw), and by several others.

They all told him "...this territory belongs to Gwinin Nitxw."

I overlook for the moment that this is not reputation evidence.

This and other affidavits go on to describe the various

territories by reference to prominent geographical features, and

each section of an affidavit dealing with a specific territory

ends with the following or equivalent statement:

"43. The boundary of the Galaanhl

Giist territory described above has remained

the same through my lifetime and the persons

mentioned in Paragraph 39 told me that it

has remained the same since long before the

arrival of European people here. They told

me that the members of the House of Gwinin

Nitxw had owned, harvested and looked after

the Galaanhl Giist territory from generation

to generation.

"44. I have heard the Galaanhl Giist territory

described in the Gitksan feast as being owned by the

House of Gwinin Nitxw."

The format of all the Territorial Affidavits is more or

less the same. In some affidavits, the format is changed

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slightly, such as in the same affidavit, with respect to the

territory of the Dam Tuutswwhl territory claimed by Wii Minosik,

where it is also said that the deponent's informants also told

him the information about that particular territory had been

passed on to them by the former Wii Minosik, "who is now

deceased." Similar language appears in many affidavits. So far

as I can ascertain, nothing turns on different language in any

of the affidavits and I do not recall any arguments being

advanced on that basis.

Returning to Mr. Blackwater's affidavit, Moses Stevens was

born in 1861, and he died in 1971. Walter Blackwater was born

in 1923 but we do not know when the declaration was made. It

must have been made between, say, 1928 and 1971. I do not know

what Moses Stevens, or any of the declarants said. The

plaintiffs case, of course, is that if this territory belonged

to Gwinin Nitxw at any time then it must have been in his House

for a very long time. The affidavits could have been more

explicit. Unless they state what the declarants actually said

it may represent a conclusion based upon belief rather than upon

the fact of reputation or other knowledge. I discussed all this

in my earlier judgment.

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One of the plaintiff's maps of internal boundaries, dated

October 17, 1985 (Ex 646-4) shows part of this territory was

claimed by Dawamuxw, and others, while Ex. 647-9A, based upon

Territorial Affidavits, attributes it to Gwinin Nitxw.

This poses a serious difficulty for the plaintiffs, as it

is impossible to conclude that a reputation of long time use of

this specific territory exists in favour of Gwinin Nitxw when as

recently as 1985 it was attributed to others. The plaintiffs

assert mistake or misunderstanding.

Thirdly, the defendants question the reputation upon which

the plaintiffs rely. The reputation alleged by the plaintiffs

is confined to the community of the plaintiffs themselves. The

plaintiff's aboriginal neighbours have been excluded from this

process although they have an interest in some of these areas

where there are overlapping claims, and inconsistent land claim

disputes still exist even after numerous efforts to arrange

settlements. Chapman and Bear Lakes areas are specific examples

of this, and the overlap claim of the Carrier-Sekanni, as

recently as 1987, includes almost one-half of the territory

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claimed by the Wet'suwet'en.

Even within the plaintiff's community, details of

boundaries were not widely known. Alfred Joseph said chiefs are

very reluctant to talk to other Wet'suwet'en about their

territory; Art Mathews Jr. said it is hard to follow a chief's

boundary descriptions because "they have a language unique of

their own" (sic); and several witnesses said they had seldom, if

ever, heard their own boundaries described in the feast hall.

There has been no reputation proven in the non-Indian community.

Fourthly, the plaintiffs and their ancestors have been

actively discussing land claims for many years, long before the

McKenna-McBride Commission in 1914. This has been a very

current issue with the plaintiffs for a very long time. The

collection of evidence in such a climate deprives it of the

independence and objectivity expected for reputation evidence.

It may even render the declarations inadmissible for the

authorities suggest the declaration, not just the reputation,

must have been made before the controversy in question arose:

Phipson, (13th ed.) para 24 - 28.

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In the Berkley Peerage Case, (1811) 4 Camp, 401; 171 E.R.

128, Chief Justice Mansfield at p.135 (E.R.) stated:

"General rights are naturally talked of

in the neighbourhood.... Therefore, what is

thus dropped in conversation upon such

subjects, may be presumed to be true. But

after a dispute has arisen, the presumption

in favour of declarations fails; and to

admit them, would lead to the most dangerous

consequences. Accordingly, I know of no

rule better established in practice than

this, that such declarations shall be

excluded.

...

I have now only to notice the

observation, that to exclude declarations

you must show that the lis mota was known to

the person who made them. There is no such

rule. The line of distinction is - the

origin of the controversy, and not the

commencement of the suit. After the

controversy has originated, all declarations

are to be excluded, whether it was or was

not known to the witness." (p.136, (E.R.))

This is a particularly significant limitation on the value

of reputation evidence as an exception to the hearsay

prohibition against out of Court declarations particularly when

those asserting such reputation and their ancestors have so

thoroughly convinced themselves about the absolute correctness

of their beliefs during over 100 years of dialogue.

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Fifthly, the authorities suggest the reputation which is

the subject of the declaration must be undisputed, that is a

settled public consensus, after the sifting of claims and

counterclaims; Wigmore, vol. 5, paras 1583, 1588.

It can hardly be said that the plaintiffs claims are

undisputed, particularly on the external boundaries which are

the subject of numerous overlapping claims by other Indian

peoples. A claim to an exclusive interest in land against the

Crown, based upon reputation for long time use would require

very strong evidence.

With regard to overlapping claims by other Indian peoples,

the evidence discloses conflicting claims both along the

external boundary, and indeed into the very heartland of the

territories claimed by the Gitksan and Wet'suwet'en peoples in

this action. These claims are advanced by Tsimshian, Nishga,

Kitwankool, Tahltan/Stikine, Tsetsaut, Kaska-Dene, and Carrier-

Sekanni peoples. It was not made clear to me what position the

Babine people take with respect to this matter but there seems

to be much uncertainty about the Bear Lake area. The position

of the Cheslatta Bands is also uncertain, but they and the

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Babine Indians have many reserves in the southern part of the

territory claimed by the Wet'suwet'en. The validity of these

conflicting claims has not been proven, but the very fact such

claims have been made cannot be overlooked in any discussion

about a certain reputation for "undisputed" ownership or

occupation of lands.

As for non-Indians, Mr. Shelford, for example, has been

living near the west end of Francois Lake since the 1920's.

Much of this area is known as the Shelford Hills. He did not

know until recently that the few Indians in his neighbourhood,

with whom he was always on friendly terms, claimed to be the

owners of both his trapline as well as their own and all the

other lands in the area. This seriously questions the existence

of an undisputed, settled reputation sufficient to found a

declaration of any kind of interest in land.

Again it is impossible to infer a community reputation for

an interest in land when a prominent, life long resident in the

area like Mr. Shelford, a Member of the Legislature for many

years, and a Cabinet Minister for a time, who acknowledges

hearing about general land claims for a long time, has never

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heard until very recently of claims of ownership or

jurisdiction, or claims to specific lands, including his own, by

Chiefs whose families he has known personally for most of his

life.

I do not say the Territorial Affidavits are not admissible,

for they contain much that is properly receivable as evidence.

What is inadmissible, according to the authorities, are the

declarations of ownership or use which would have been

inadmissible whether given orally in court or by affidavit. I

regret this finding greatly because the affidavits probably

represent the best the plaintiffs can do in this connection. It

does not appear to me, however, that the Supreme Court of Canada

has decided that the ordinary rules of evidence do not apply to

this kind of case. I do not understand the authorities to

permit a court to suspend the laws of evidence even in a

special, difficult case like this one.

Applying the same principle I mentioned earlier, that

witnesses do not take easily to the concept of reputation

evidence, I believe it is open to me to treat these inadmissible

statements as the deponent's description of a reputation in the

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feast hall. I believe that is what was intended, and to that

limited extent I have taken these affidavits into consideration.

That, however, does not get over the hurdle that reputation is

just the reputation of the feast hall and is not the reputation

of the community. The community in question is surely much more

than those who attend feasts.

On this basis, it is my conclusion that the plaintiffs have

not established the kind of reputation the law requires as proof

of this ingredient of their case. As I see the matter, however,

there is a much more serious problem with the proof of this part

of the plaintiffs' case.

4.

Uncertainties

Apart from the foregoing, the plaintiffs would still fail

on this issue of internal boundaries.

This is because, after making what I believe are

substantial and appropriate discounts for the difficult task the

plaintiffs have undertaken, and due allowances for human

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frailty, faulty memories, imperfect communication, erroneous

assumptions, incorrect inferences and other error-inducing

processes, I have concluded there are far too many

inconsistencies in the plaintiff's evidence to permit me to

conclude that individual chiefs or Houses have discrete

aboriginal rights or interests in the various territories

defined by the internal boundaries.

To put it another way, it has not been established that the

internal boundaries represent valid subdivisions of Gitksan and

Wet'suwet'en aboriginal lands accruing just to chiefs or Houses.

To make this finding, it has been necessary to consider all the

evidence in great detail. Fortunately, counsel have assisted me

greatly in this connection by useful summaries of the evidence

relating to the individual territories claimed by the

plaintiffs.

5.

Evidence about Discrete Territories

In their Summary of Argument the plaintiffs furnished a

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synopsis of the evidence relating to each of the 133

territories. This is found in Vol VI of the plaintiff's

outline, and comprises about 489 pages. The note I made at the

conclusion of their submissions on this question, records

plaintiff's counsel submitting that the evidence demonstrates:

1. knowledge by the people of land and

House Territories;

2. knowledge of names and places by

which their lands are known;

3. knowledge of lands came from their

ancestors and is known in the community and

passed along:

4. the connection of chiefs and House

members to their history and crests and to

their names and territories;

5. the use of the territories and

resources such as moose, bear, etc. as well

as berries, trees and all resources;

6. management by chiefs and Houses of

resources and harvesting of them;

7. in short, plaintiff's counsel

submitted the evidence supports their claims

to ownership as claimed.

The province, on the other hand, submitted the evidence

falls far short of establishing the credibility of the internal

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boundaries. The province attacked the admissibility, form and

content of the plaintiff's evidence, particularly the

Territorial Affidavits, and embarked upon a detailed analysis of

the evidence regarding 5 specific territories said to be

representative of all the territories. The province's Summary,

preceding such analysis is in these terms:

A. Gyolugyt

Map 9A conflicts with the Benson

territorial affidavit and with other maps

identified by Mary McKenzie as showing the

correct boundaries. The territorial

affidavit contains false statements and

conflicts with the affiant's evidence on

cross-examination.

B. Antegiliubx South

Map 9A conflicts with other maps

identified by Mary Johnson as showing the

correct boundaries. There is no evidentiary

basis for much, if not all, of the

boundaries on Map 9A.

C. Gwinin Nitxw - Slamgeesh

Map 9A conflicts with several other

maps in evidence. There is considerable

evidence that until 1988 most of the

territory was attributed to Dawamuxw or

possibly Niist.

D. Samooh - Tahtsa Lake

There is much evidence that this is

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Cheslatta territory which should not be

included in the Claim Area.

E. Madik (Kanoots) - Buck Creek

On cross-examination, the affiant

testified that the territorial boundary

description was false. There is no basis in

the evidence for the precise western

boundary shown on Map 9B.

There followed, a 94 page analysis of these 5 territories

demonstrating many inconsistencies. The province alleged the

same exercise could be done for each House territory, but

submitted on the "house of cards" theory that the plaintiffs

must fail on all territories if they failed on these 5

territories. In other words, the province submitted that the

integrity of the network of internal boundaries shown on Maps 9A

and 9B depends upon the validity of each of its parts.

It may have been something I said about doubting the house

of cards theory that led the province then to submit a Table of

Inconsistencies relating to the evidence of 69 further

territories and a detailed analysis of 3 further Gitksan

territories (Spookw, Wiigyet - Skayanst, and Wii Minosik -

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Gwindak (Shedin Watershed), and 2 Wet'suwet'en territories (Wah

Tah Keght and Hagwilnegh).

Counsel for the province asserted, correctly I think, in so

far as Gitksan and some Wet'suwet'en territories are concerned,

that if these analyses are accepted in any substantial way, the

plaintiff's network of internal boundaries would indeed collapse

as the boundaries of many adjacent territory would likewise be

inaccurate.

In Part IX of its Summary of Argument Canada furnished a

298 page analysis of the plaintiff's territories which is

largely dedicated to a review of the evidence of use of the

territories showing in many cases the absence or minimal use of

many of the territories for many years.

In Reply, the plaintiffs submitted a 12 page response to

the province's analyses of the first five territories, alleging

in the main that the evidence about common boundaries of

adjacent territories answered the criticism's of the province.

The plaintiffs also replied to Canada's submission on

territories (46 pages), but does not seem to have furnished a

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written Reply to the analyses of the 69 and 5 territories

furnished by the province.

All these summaries and analyses of territorial evidence

were, of course, the subjects of intense oral submissions during

argument.

6.

The Details

It will not be necessary for me to undertake a further

detailed analysis of all the evidence. Counsel have done that

admirably, and I would be walking over well ploughed ground if I

were to do it again. But it is not a question of choosing one

analysis over another, for broad judicial judgment is also

required in this exercise. This is because in the case of most

territories there is some evidence or testimony to support the

separate claim of some chief, House or sub group. But this

evidence is so intermixed with and subsumed by trapping

practices, anecdotal history and wishful belief that counsel's

detailed arguments become mainly useful as references to

evidence. This evidence, in total, is so contradictory and

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inconsistent that it would not be safe to make a declaration of

exclusive interest for any of these many territories. That this

is so is demonstrated by the extracts of argument which I have

included in Schedule 6.

I believe reference to some of the evidence about a few

individual territories will support the conclusion I have

reached on internal boundaries. I do not intend these examples

will necessarily be completely representative as each territory

is sufficiently unique that they must all be considered

individually. I have tried to do that, and what follows is

intended, as I have said, merely to illustrate the basis upon

which I have reached my conclusions.

In this respect I have not confined myself to territories

within the area to which I believe aboriginal rights attached

before sovereignty because I am presently considering the

reliability of the plaintiffs' process.

I do not pretend that I have checked each reference to

evidence in the summaries, but I have sampled enough of them,

and I have examined references to related territories

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sufficiently to satisfy myself that the internal boundaries are

not reliable bases for declarations of chief or House rights to

individual territories. It is mainly the uncertainties and

inconsistencies in all of the evidence, viewed together with all

of the facts and circumstances of the case, that persuades me to

that conclusion. The examples I have chosen and the extracts

from Counsel's arguments illustrate the magnitude and difficulty

of this exercise.

There are serious inconsistencies about so many territories

that the process is unreliable. This leads me to conclude that

this part of the plaintiffs' case is not proven.

I do not question that some of the plaintiffs, and some of

their immediate ancestors had associations with many of areas

they now claim. In a general way I accept that proposition as

to most of these areas. It is the nature of that association

and the details of precise boundaries that precludes me from

accepting the internal boundaries as proven facts in this case.

(a) Galaanhl Giist (Slamgeesh River) Territory

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This territory is claimed by Solomon Jack, (Gwinin Nitxw),

who claims 2 specific territories on either side of the Skeena

River. It is the northerly Gwinin Nitxw territory located in

the north-central Skeena area near the ancient, now deserted

Indian village of Gitangasx. On our view of the territories in

1988 we had lunch on this territory which is on the old

telegraph trail leading to the Yukon. Mr. Blackwater was with

us and the trail could be seen when he pointed it out. The

plaintiffs say this is the most intensely investigated territory

in the analysis of the province.

The plaintiffs sought to establish the details of this

territory, in part, by the Territorial Affidavit of David

Blackwater, Ex. 605, Sec. E, which is Schedule 5 to these

Reasons for Judgment. This territory was much discussed in the

evidence of several witnesses.

I have attached as Schedule 6 (Part 1, (a), (b) and (c)),

the written submissions of the parties regarding this territory

which were fully supplemented by oral argument.

It is apparent there is much confusion about the reputation

of this territory. The plaintiffs argue that all this

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difficulty arises over a misunderstanding about the basis upon

which Moses Stevens used the territory in this century, but even

if that is so, the plaintiff's evidence of a special interest in

the territory of Gwinin Nitxw, or its boundaries, falls far

short of proof which would support a declaration of exclusive

aboriginal rights either against the Crown, other interests, or

even other Indians.

(b) Gyolugyt, (Mary McKenzie)

Mary McKenzie is the current holder of the name of

Gyoluugyt and on behalf of her House she claims a very large

area in the north-east portion of the territory. It is one of

the largest territories claimed by a Gitksan chief, and includes

3 distinct territories. Mrs. McKenzie, who was 68 years when

she gave her evidence in 1987, said that her family originated

in the "Wild Rice" village of Gitangasx but moved to Kuldo and

later to Kispiox, "hundreds or thousands of years ago." The

pole of her House is said to be at Kuldo which is now deserted.

She has never been on the territories of her House, although she

said her husband and others have trapped there with her

permission.

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I have set out in Schedule 6 (Part 2, (a), (b) and (c)),

the written submissions of the 3 parties on these territories.

The evidence falls far short of establishing long time use

of much of this territory before the arrival of European

influences. It establishes that in the believed history of

these people they migrated from a village considerably east of

the Gyolugyt territories to Kuldo which is closer to the

territories, but then moved further south, away from the

vicinity of these territories at some unknown date before the

birth of her mother. Neither Mrs. McKenzie nor her son have

been to Kuldo, although she said her husband went there in 1947

or 1948 and trapped on her territory. Much of Mrs. McKenzie's

information about these territories has been acquired quite

recently, no doubt in connection with this action.

What little use has been made of this territory was by

others, and it is obvious Mrs. McKenzie does not have any

precise understanding of the boundaries of the territory she

claims. It fell to Richard Benson, a member of the House of

Luus, to swear the Territorial Affidavit for her House, and he,

also, was unsure of its boundaries. He admitted parts of his

affidavit were not correct.

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The discrete claim of this House to this territory was not

established in the evidence.

(c) Antgulilbix - South, (Mary Johnson)

This Gitksan territory is one of 2 claimed by this Chief

and House, and is located in the Date Creek area near Kispiox

where Mrs. Johnson was born and still resides. She was 80 years

when she gave her evidence, but seemed reasonably alert for a

woman of such age.

There is no Territorial Affidavit for this territory.

Instead, the plaintiffs rely upon evidence at trial, including

evidence about surrounding territories.

I have set out in Schedule 6 (Part 3, (a), (b) and (c)) the

written submissions of the parties on this territory which were,

of course, fully argued at trial.

I regard it highly significant that Mrs. Johnson, who was

born and lived all her life in Kispiox, in the immediate

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vicinity of this territory, did not have an understanding of her

alleged boundaries. I have already mentioned her age, but I do

not attribute her misconceptions to her age.

It is obvious that the boundaries of her territory, as

shown on Map Ex 646-9A, were reconciled prior to and during the

litigation. The final result is more an accommodation to views

contrary to her own than to the kind of oral history for which

the plaintiff's contend. I find it incomprehensible she would

not earlier have been aware of the boundaries of her territory

if there was any reputation in that connection and if the feast

system had been functioning in this respect as the plaintiffs

allege.

(d) Gisdaywa - Bewennii Ben (Owen Lake), Alfred Joseph

This large, irregular shaped Wet'suwet'en territory is in

the south central part of the territory south of the non-Indian

village of Houston. Mr. Alfred Joseph (Gisdaywa) is chief of

the House of Kaiyexweniits (about 30 members), and he recited

its boundaries from memory in his evidence, but he has had very

little connection with the territory. He was born in 1927 and

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he remembers being on the territory when he was a small boy, but

his family moved to Hagwilget in 1931, and he had little

association with the territory even after he took the name

Gisdaywa and became chief of his House in 1974.

He continued to reside in Hagwilget, where he has been a

long serving and distinguished Chief Band Councillor. Apart

from occasional visits, he has spent little time on the

territory. He said he was always aware that some members of his

family were trapping on the territory particularly his cousins

who had a trapline in the south west part of the territory. It

is from these cousins that he has learned a great deal about the

territory. He adds, however, that he also learned a great deal

about the territory from his parents and grandparents.

Mr. Joseph has been the most visible of all the

Wet'suwet'en chiefs in the preparation of evidence for this

case, having been employed full time, or almost full time, on

the case for the past several years.

Probably because there is no discernable difference in the

Interrogatory sketch, internal boundary map (Ex. 5) and map 9B,

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the province has not advanced a detailed analysis of the

evidence about this territory. I have set out in Schedule 6,

(Parts (a) and (b)) the detailed submissions of the plaintiffs

and Canada.

The province instead relied mainly upon the unlikelihood of

the whole scenario portrayed by Mr. Joseph, which was really

that of an absentee becoming chief of a territory with which

members of his family had been associated in the early years of

this century, applying for pre-emption, Indian Reserve lands,

and traplines, and substantially abandoning it in the early

1930's.

It was pointed out that when he as asked to estimate the

size of his territory he replied 40 sq. miles when it is

actually 315 sq. miles. The explanation was that he was

referring to the area used for trapping which I regard as

confirmatory of the view that traplines are often equated to

territories. A neighbouring Wet'suwet'en chief, Christine

Holland (Knedebeas), had a trapline on his territory under

circumstances he could not explain, except perhaps that some

arrangement had been made with an earlier chief.

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During recent years the territory has been partly logged,

and subdivided probably in connection with the growth of the

nearby village of Houston. When asked about the areas where his

grandmother picked berries he said:

"A

I have not seen it lately. But

the areas that my grandmother

picked are all today subdivided

and

towns are -- there are

buildings on it and some

commercial building on that area

so it's -- so if one is going to

pick those berries you have to go

quite a ways out."

There is no real evidence about when the ancestors of the

members of this House first started to use this territory.

There is only the evidence of what Mr. Joseph's grandparents,

parents and uncles told him about use of the territory which is

vague as to boundaries. Even the poles or poles of his House

are located at Hubert, near Telkwa, 30 or so miles north-west of

the territory at the home of his uncle Thomas George who was a

former Gisdaywa.

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I consider it significant that when his ancestors were

allotted an Indian Reserve at Owen Lake, it was attributed

either to the Ominica or Broman Lake Bands, confirming the

conclusion I have reached that in many of these matters the

Wet'suwet'en and Babine peoples are indistinguishable.

The evidence is not sufficient to support a discrete and

exclusive right to this territory by just the members of this

House.

(e) Spookw - Stekyawdenhl, or Rocher de Boule

Steve Robinson (Spookw) is the chief of the House of

Spookw. He has been a caretaker chief for many years even

though he is a member of the House of Yogosip, and a chief of

both that House and of the House of Guuhaadk. For the House of

Spookw, he claims a territory which includes the forks of the

Skeena and Bulkley Rivers, the villages of Hazelton (Old and

New), as well as the magnificent Rocher de Boule, also known as

Hagwilget Peak or Stekyawdenhl.

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Basically, the province asserts discrepancies regarding the

boundaries of this territory in various maps and other documents

including Mr. Robinson's Interrogatory Sketch and various maps

including Exs. 5, 102, 335, 336 and 646-9A.

I have set out in Schedule 6, (Part 5 (a), (b) and (c)),

the written submissions of the parties on this territory.

I am particularly impressed by the submission that this

territory is in the very heartland of Gitksan country. I would

not have though that there would have been any doubt about its

boundaries having regard to the tremendous importance the

plaintiffs have attached to that question.

I am left in the position where I simply cannot say whether

the members of the House of Spookw have the sole right to the

use of this territory to the exclusion of all other Indian and

non-Indian persons.

(f) Hagwilnegh - Keel Weniits (McDonell Lake- Telkwa River)

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This immense Wet'suwet'en territory is one of 5 separate

territories claimed by the chief and House of Hagwilgenegh.

These 5 territories are situated at various locations between

Smithers and Burns Lake, a distance in excess of 100 miles.

I consider this Keel Weeniits territory significant because

its eastern boundary is only about 5 miles west of the town of

Smithers which the largest non-Indian settlement in the

territory. This territory is also close to the edge of the

Smithers ski and recreation area on Hudson's Bay Mountain which

towers over Smithers. As with Spookw, I would have thought

there would be no uncertainty about the ownership and boundaries

of such a large territory located so close to a major population

centre.

I have included in Schedule 6, (Parts (a), (b) and (c)) the

written submissions of the parties which disclose that until

quite recently it was suggested that at least part of this

territory was owned by another Wet'suwet'en chief.

I am not persuaded the chief or House has an exclusive

right to the use of this territory.

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(g) Samooh, Tsee Cul Dleez Ben (Tahtsa Lake) Territory.

This mountainous territory near the south-west corner of

the territory is about 100 miles south of Moricetown. It is not

understandable that it was not included in the plaintiff's early

maps. This claim was in progress of preparation for so long I

would have thought the Wet'suwet'en chiefs, would have known

from the very beginning of the process whether the people of

associated Houses and clans occupied lands so far south as this

territory. This territory was not claimed on the 1977 map.

But the evidence, as set out in the arguments of counsel,

which I have included in Schedule 6, (Part 6 (a), (b), and (c))

persuade me this land is just as likely Cheslatta as

Wet'suwet'en territory. Mrs. Jack, who swore the Territorial

Affidavit was herself a member of a Cheslatta Clan as was her

father. There is no reality to the plaintiff's claim to this

territory.

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7.

Conclusions on Internal Boundaries

I do not think it necessary to explore further examples.

The weight of evidence is overwhelmingly against the validity of

these internal boundaries as definitions of discreet areas used

just by the ancestors of the present members of the various

Houses. As I have said, I think they more likely represent

trapping areas which ancestors of the present claimants have

probably used for trapping and aboriginal purposes for the past

one hundred years of so.

On balance, however, the evidence is not sufficiently

specific and convincing to permit me to make a declaration or

judgment that would award user rights to the present claimants

to the exclusion of other Gitksan and Wet'suwet'en persons in

preference to other Indian and non-Indian citizens.

8.

General Aboriginal Rights

The foregoing leaves untouched the conclusion I

expressed earlier that, subject to extinguishment, the

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plaintiffs were entitled to aboriginal rights to some parts of

the territory for the benefit of all of these peoples. The

external boundary is now artificial, but it fixes the outermost

extent of the lands to which I could make a declaration of

aboriginal rights in this case.

I pause to say that if I were defining an area of

aboriginal ownership or sovereignty it would be limited to the

areas surrounding the villages I have mentioned. As no evidence

or argument was advanced in this connection I do not propose to

say anything further about that question. What follows relates

to aboriginal rights.

The question is where to draw the line.

In this respect it will be necessary to be arbitrary.

The

most helpful evidence is geographical, particularly the great

rivers and the location of the villages where the ancestors of

the plaintiffs obviously lived and gathered the products they

required for subsistence. There is hardly any objective

evidence of early aboriginal presence based other than in the

villages.

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I start with the certainty that aboriginals have lived for

a very long time at or near present day Hagwilget and

Moricetown, as they probably also lived at Kitsilus Canyon

(outside the territory), and at or near Ksun, Kisgegas and the

Kuldos inside the territory. The reason, of course is that

geographical features, such as canyons or other river conditions

were advantageous for salmon fishing.

I am not so certain about Gitanka'at, Kitwangak,

Kitseguecla, Kispiox and Gitangasx, but as villages were found

by the early explorers at most of those locations, it is likely

there were villages there in pre-European times.

Next, it is likely, in my view, that the Indians in those

early times would have searched for food and other products in

the vicinity of their villages. There was no need for them to

go very far for such purposes, and I know of no reason to

suppose they did.

It is likely that they visited, or made war with each other

or with other peoples, using both the trails shown in some of

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the sketches adduced at trial, and by way of the great rivers

both in summer and winter although there is little evidence they

possessed boats. They must have had a way to cross rivers which

would have been a formidable undertaking. I am sure they used

some of the frozen rivers as cold weather sidewalks. It seems

likely these early aboriginals would also have used the lands

alongside the great rivers, between their villages, for

aboriginal purposes.

I do not question that some of these ancestors may well

have lived and survived considerable distances from the villages

and great rivers but they would be hardy, generational recluses

whose personal preference to absent themselves from villages

even for

their lifetimes would not create aboriginal rights based upon

indefinite, long time use.

It seems to me there are three reasonable alternatives:

(a) Alternative No. 1

Having regard to the difficulties of pre-contact travel in

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the territory it might be argued (I do not believe it was), that

both the Gitksan and Wet'suwet'en would not have used lands and

waters any great distance from their villages. Perhaps an area

of 20 or 25 miles around their principal villages would be

appropriate for this alternative.

I reject this alternative because it does not give proper

weight to the evidence of trails between villages and throughout

the territory, and the evidence is that both plaintiff groups

are peoples with common clans, languages, and customs. I cannot

assume they would not travel between villages and use the land

in between. Applying this formula to the Wet'suwet'en, of

course, would limit their zone to an area around present day

Moricetown, for there is no evidence of any other Wet'suwet'en

village.

(b) Alternative No. 2

(i) Gitksan

In this alternative I have assumed the lands and waters

which the plaintiffs used for aboriginal purposes would be

defined by reference to a reasonable distance from their

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villages, and from their principal rivers which, together,

constitute the heartland of their aboriginal territories. These

areas must be within the territory.

It is easy, when being arbitrary, to draw a line on a map.

I prefer to relate my conclusions to the evidence as much as

possible. Mr. James Morrison (Txaax Wok) mentioned that, when

he was a boy, the chiefs established a common hunting area at

Kisgegas measured by two hours walking distance from the

village. On level ground this might be between 8 and 10 miles

but probably less than that in the Kisgegas area.

On the other hand, a hunter in reasonable country could

comfortably walk 20 or 25 miles in a day. In this territory I

think 20 miles would be reasonable and I doubt if many Indians

would have found it necessary to travel that far from their

villages or rivers to obtain what they required for subsistence.

On this basis it would be reasonable to define an

aboriginal rights area measuring, say, 20 miles from the centre

of each of the villages mentioned above and also on each side of

the Skeena south of Gitangasx; on each side of the Kispiox and

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Babine Rivers within the territory; and on the south or west

sides of the Sustat and Bear Rivers.

Such a definition might not be completely practical because

there would be substantial overlaps and it might omit some

likely used areas. It would also exclude some very large areas:

(a) the north-west, generally in the watersheds of the

Nass and Bell Irving Rivers. I do not recall evidence about

Indian villages in all of these vast areas and I know of no

reason for Gitksan ancestors to use such lands on a permanent or

even semi-permanent basis prior to the beginning of the fur

trade;

I believe some Gitksan moved into these areas after the

start of the fur trade, or later, particularly in the last 150

years when there was a reason to be there, but as we have seen

since 1950, when the reason to be in a location disappeared then

the land quickly became empty. If the land is substantially

empty now, as I believe it is except for non aboriginal purposes

such as commercial trapping, mining or logging, then I believe

it was also empty for aboriginal purposes at the time of

contact;

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(b) The north-east and east side of the area claimed by

the Gitksan. What I have said about the north-west applies also

for the north-east. In addition the Nii Kyap corner is

doubtfully Gitksan. Further, I am not persuaded the heavily

mountained areas of the Tatlatui and Slamgeesh Ranges were

likely used for the long periods necessary for aboriginal

purposes.

(c) This definition would exclude some areas south of

Gitangasx, including many mountainous areas where mountain goat

may have been hunted, and I am aware that part of the Babine

Trail from Hagwilget to Babine Lake might be excluded. It is

not possible to achieve perfection in an arbitrary award.

(ii) Wet'suwet'en

The situation with respect to the Wet'suwet'en is much more

difficult. As mentioned, there was periodic, pre-historic

habitation of some kind at Hagwilget and Moricetown, but the

former was only occupied by the Wet'suwet'en in the 1820's. This

would not qualify for Wet'suwet'en aboriginal interests even

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though it has become one of their principal centres. Hagwilget,

however, would be within the Gitksan area I have defined.

It seems apparent the Bulkley River did not attract

villages as did the Skeena. This is probably because it was not

the great salmon river the Skeena has always been. I have

searched for evidence of Wet'suwet'en villages other than

Hagwilget, Moricetown, the Babine River villages (which are

alleged in this case to be Gitksan), and in the Francois - Ootsa

Lake areas. A search of the written outlines of all the parties

identifies only Lhe Tait and Barrett Lake near Moricetown and

mention of settlements of families living on land in the Bulkley

Valley from which they were dispossessed in this century.

Although I believe it likely that ancestors of some present

Wet'suwet'en lived in the area, I am left in a state of much

uncertainty about where they were located either at the start of

the fur trade or at the time of sovereignty. The evidence is

that they were not nomadic. Most of the genealogies take us

back only 3 or 4 generations, which is not much more that 100

years.

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It is true there are now numerous settlements along the

Bulkley transportation corridor, but there is no evidence of

when they were first populated, and they are likely a function

of the facilities which have all been built in this century.

Similarly, I am uncertain when the villages in the Francois and

Ootsa Lakes areas became inhabited by Wet'suwet'en if that has

ever occurred.

The Hudson's Bay Company never established a post in this

part of the territory. I suspect this was because it was

largely an empty country. As it is empty now, it was probably

empty both at the time of contact and, except possibly for some

limited commercial trapping, at the time of sovereignty.

Indian reserves in this area are not helpful indicators of

Wet'suwet'en habitation because there are so few of them apart

from Hagwilget and Moricetown. Actual reserves are shown on Ex.

1243-D and on the map exhibited earlier in this judgment. Felix

George No. 7 reserve, on the territory claimed by Gisdawya was

established in this century by request of one of his immediate

ancestors not because of long time use, but as a second choice

when he learned that his first choice in the south was not

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available. There seem to be only 2 small reserves in the central

area of the Wet'suwet'en territory. On the other hand there are

a great many reserves in the south-east portion of the territory

which are administered by non-Wet'suwet'en Bands.

Moricetown and Hagwilget are the centres these people

turned to in this century when they left the land, but in the

1920's and 30's there seemed to be as many non-Indians as

Indians on the land. There are Cheslatta people around the

southern lakes now but some of them were moved there because of

the flooding of their own land by the Kenny Dam which was built

in the 1950's.

Over hanging the Wet'suwet'en claim is the Carrier-Sekanni

claim to at least one half of this country (and some of the

north-east corner of the Gitksan territories), as shown on Ex.

101. I am much impressed by the apparent similarity of the

Wet'suwet'en with the Babine and I doubt if there was any real

difference between these two peoples at the time of contact or

sovereignty. They are both Athabaskan peoples who speak the same

distinctive language. Until quite recently, it was the Carrier

(which includes the Babine), rather than the Wet'suwet'en who

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were joined with the Gitksan in this land claim.

Mr. Joseph (Gisdaywa) said the Wet'suwet'en people are

those who lived in the area of the Morice and lower Bulkley

Rivers. This accords with the impression I have that the

Wet'suwet'en homeland is more in the north and west than in the

south and east of the south half of the territory. The latter

areas, in my view, are just as likely to be Babine or Cheslatta

as Wet'suwet'en areas.

I do not for a moment suggest that many Wet'suwet'en

families such as the Hollands, Laytons, Alfreds, Michaels,

Josephs and others were not on the land they now claim during

the last part of the 1800's and the early years of this century.

What is lacking is sufficiently precise evidence to permit me,

other than arbitrarily, to define which areas of this vast

territory should be charged with Wet'suwet'en aboriginal

interests.

I am also reluctant to create a legal boundary when it is

likely, in my view, that there was no fixed boundary in

aboriginal times. I believe there were grey areas between

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groups of people, particularly the Wet'suwet'en and Babine, upon

which aboriginal interests were probably exercised by more than

one people or family. I have already pointed out that I do not

accept the view that absolute exclusivity is an essential

ingredient required for aboriginal user rights.

Doing the best I can in this alternative, and accepting the

evidence of Mr. Joseph on this question, I think a 20 mile zone

on each side of Morice Lake and the Morice River north-east to

its forks with the Bulkley River, and thence northerly on each

side of that river to its confluence with the Skeena River

captures the heartland of the Wet'suwet'en people.

(c) Alternative No. 3.

(i) Gitksan

The second alternative, although arbitrary, is based upon

inferences from evidence, and complies with the well known

judicial dictum that in many situations, where the evidence and

inferences do not furnish a completely satisfactory answer, the

judge must do the best he can.

The foregoing probably

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represents a substantial extension of the principle expressed in

cases such as Chapman v. Hicks, [1911] 2 K.B. 786 (C.A.) but

sometimes the law affords no other process.

This alternative paints with a much broader brush and

concludes that some of the ancestors of some of the plaintiffs

sometimes used lands for aboriginal purposes more distant from

the villages and great rivers than one would think at this time.

On this basis, it becomes necessary to draw a line on a map

which, as I suggested in an earlier procedural judgment, seems

hardly a judicial function: something more appropriate for the

Senate in Rome.

The evidence does not persuade me that the areas described

above in the north-west and north-east, north of Gitangasx were

probably used for aboriginal purposes by the ancestors of the

plaintiffs at the relevant time.

I would fix the north boundary of the lands over which the

Gitksan have aboriginal rights by drawing a line across the

territory through the centre of the Skeena River where it flows

past the village of Gitangasx, the Gitksan's most northerly

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village. This line would be extended westerly from the point

where the Skeena turns south (near the outfall from Canyon Lake)

and I would project the line more or less along the heights of

land between the Nass-Kispiox and Nass- Skeena drainages to the

external boundary in about the centre of the Kwinageese

territory claimed by Delgamuukw. The line would be extended

easterly from Gitangasx along the Skeena to its junction with

the Sustut River, and along the Sustat to the external boundary.

If I stopped there the aboriginal area would not extend

north of the Skeena at Gitangasx. To be consistent, however, I

must assume some of the villagers at that location would have

used some of the lands around their village, and I particularly

noted the village site was on the north side of the river. I

would therefore add an area north of the river within a radius

of 20 miles from the village. The boundary of this area will

intersect the line I previously designated. In an attempt to be

tidy, I would not include any area east of the Skeena and north

of the Sustat Rivers.

I would use the agreed boundary between the Gitksan and

Wet'suwet'en, as shown on Exs. 646-9A and 9B, as the southern

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boundary of the Gitksan aboriginal lands.

(ii) Wet'suwet'en

I have, in the previous paragraph, already fixed the north

boundary of the Wet'suwet'en aboriginal lands.

The Wet'suwet'en southern boundary is much more difficult

to create, and it must be even more arbitrary. Using internal

boundaries only for convenience and because they generally

follow heights of land or other natural features, I would draw

the line along boundaries shown in Ex 646-9B as follows.

Starting on the south-westerly external boundary opposite the

west end of Morice Lake, the extended line would run easterly

along the south boundary of the Lootdzes Ben (McBride Lake)

territory of Woos; then along the south boundary of the Bewenii

Ben (Owen Lake) territory of Gisdaywa; then north-east along the

west boundary of the territory claimed by Namox; then along the

south boundary of Hagwilnegh's northern territory (at this

location), the south boundary of Samooh; the south and east

boundary of Satsan; and the south boundary of Hagwilnegh's

"Topley" territory to the external boundary.

Part 17.

The Lands Subject to Aboriginal Rights at the

Date of British Sovereignty

794

__________________________________________________________________

9.

Conclusion

Making a choice between these 2nd and 3rd alternatives must

necessarily be a matter of judgment based upon the best

consideration I am able to give to all of the facts and

circumstances of this case. For reasons which I am not able to

articulate with much confidence, I have the view that the

Wet'suwet'en were less concentrated in the great river valleys

than the Gitksan, and more spread out in the relatively gentler

country in the Bulkley valley than the Gitksan in the Skeena

watershed.

This leads me to conclude that unfairness might result from

the adoption of the 2nd alternative for the Wet'suwet'en. I do

not have quite the same misgivings about the Gitksan because

they have more village reference points. It is not essential

that I choose the same alternative for both peoples.

But the Gitksan have always been much more numerous than

the Wet'suwet'en, and there may have been more of them living

away from villages and rivers than might be inferred from the

Part 17.

The Lands Subject to Aboriginal Rights at the

Date of British Sovereignty

795

__________________________________________________________________

evidence. I am also concerned that these are people without a

written history and some of the unspecific references in the

anthropologist's collections may well refer to events further

away from the villages than I have suggested.

I believe there is a greater risk of unfairness for both

Gitksan and Wet'suwet'en under the 2nd alternative. I would

apply the 3rd alternative for both Gitksan and Wet'suwet'en

peoples.

At the end of this part is another copy of Mr. Macaulay's

map upon which I have crudely endeavoured to describe the

aboriginal areas I have attempted to define in the 3rd

Alternative.

It will be obvious from the foregoing that I do not have

confidence in early Gitksan and Wet'suwet'en presence north and

south of the lines I established. They will understand, subject

to the general law, that they are free to use the other lands of

the territory along with every other citizen of the province. I

am not, of course, validating or extinguishing any trapline

registrations.

Part 17.

The Lands Subject to Aboriginal Rights at the

Date of British Sovereignty

796

__________________________________________________________________

The foregoing boundary creations are admittedly

approximate. Perhaps counsel will prepare a better map, giving

effect to what I have endeavoured to describe. If they agree,

they could even draw a line across the territory with a ruler.

I would not wish to be understood by any of the foregoing to be

authenticating the internal or external boundaries in any way.

In addition, as I do not regard exclusive use of the areas

to be an essential requirement for aboriginal rights, I would

not wish the foregoing reliance upon external boundaries finally

or conclusively to settle any overlap questions between the

plaintiffs and their aboriginal neighbours. Those are questions

which may only be settled by negotiation between these peoples

or by litigation between them.

If I have erred in my disposition of the questions of

jurisdiction, ownership or aboriginal rights, any declaration to

which the plaintiffs would be entitled would be against the

province only. I do not purport in this judgment to affect the

aboriginal or other rights of any person not a party to this

action.

Part 17.

The Lands Subject to Aboriginal Rights at the

Date of British Sovereignty

797

__________________________________________________________________

MAP5

Part 17.

The Lands Subject to Aboriginal Rights at the

Date of British Sovereignty

798

__________________________________________________________________

PART 18. ABANDONMENT OF ABORIGINAL RIGHTS

It will be useful for the Appellate Courts to have my views

on this defence in the event it is found that I have erred in

the conclusions I have reached on the question of aboriginal

rights.

1.

Discussion

The defendants take the position that many of the areas

claimed by the plaintiffs have been abandoned by long term non-

aboriginal use. In advancing this argument Canada, for

convenience, used the areas contained within the internal

boundaries shown on Exs. 646-9A and 9B and I shall follow the

same format because that is it way counsel organized their

submissions. I do not resile in any way from the findings I

have already made about internal boundaries.

Part. 19

Other Defences

799

__________________________________________________________________

Abandonment is a superficially attractive argument because

it reflects current realities arising out of the historic

movement of the people away from their historic villages to the

larger centres in the transportation corridor. This started

before Loring's time. He predicted, correctly, that this trend

would continue. Thus, the defendants argue, it is anomalous

that the Indians who abandoned Gitangasx, the Kuldo's, and Ksun

many years ago, and more recently Kisgegas, except for seasonal

fishing, should maintain aboriginal rights over vast areas of

surrounding territory.

The situation is less dramatic in the Wet'suwet'en areas

because there were so few villages; but even there, no less than

in the north, the land is virtually empty of Indians and has

probably been so for upwards of 40 years since fur prices

crashed in the early '50's.

Steele, J. in Attorney General for Ontario v. Bear Island

Foundation v. Bear Island Foundation (1984) 15 D.L.R. (4th) 321

(Ont. H.C.); aff'd (on other grounds) (1989) 58 D.L.R. (4th) 117

(Ont. C.A.), (currently on appeal to the S.C.C.), held at p.404:

Part. 19

Other Defences

800

__________________________________________________________________

"Finally, from the coming of the railway in

1905, major changes in location of the

defendants have taken place, and the

evidence indicates that, since approximately

1950, the defendants reside either outside

the Land Claim Area, or within the Land

Claim Area, on Bear Island or in established

white settlements such as the Town of

Temagami. The last person to live in the

Land Claim Area, other than on Bear Island

or in established white communities, lived

at Obabika Lake, in 1962, although it is

possible Jack Pierce seasonally occupied a

cabin on Duncan Lake until 1963 or 1964.

Under these circumstances, even if it were

found that the Province of Canada, and

subsequently Ontario, exercised complete

dominion over the lands in issue and enacted

legislation allowing for settlement but

erred in law in failing to expressly state

its intention to extinguish aboriginal

title, I find that such title was in fact

extinguished because the Indians have

Part. 19

Other Defences

801

__________________________________________________________________

abandoned their traditional use and

occupation of the Land Claim Area. In other

words, there is no evidence of exclusive

aboriginal use of any of the lands except

the Bear Island Reserve continuing to the

date of the commencement of the action."

This makes good sense because aboriginal rights depend upon

long time and, I think, regular if not continuous use of

territory for aboriginal purposes. The difficulty is not with

the principle, but rather in its application in particular

cases. In this connection I respectfully disagree with some

academics who suggest aboriginal rights can be ignored for long

periods and then revived. It largely depends on how complete

the abandonment is, and for how long the territory has been

unused.

Canada argues that disuse for a generation, which is

usually 20 - 25 years, is sufficient to constitute abandonment.

With respect, I think the circumstances are probably more

important than any specific number of years in the first stages

of disuse, and these matters are seldom absolute in the sense

that all aboriginal use may not cease even though the territory

Part. 19

Other Defences

802

__________________________________________________________________

has been largely abandoned.

I have in mind, for example, the 1951 crash in fur prices.

If aboriginals were using a territory for aboriginal purposes,

as well as for commercial trapping, and left the land because of

a sharp drop in price, fully intending to return when prices

improve, or intending to continue using the land periodically

for aboriginal purposes although residing elsewhere, then the

law would be very slow indeed to regard aboriginal user rights

to be abandoned.

I think the foregoing describes this case, for I believe

the Indians were probably using the lands I have identified for

aboriginal purposes both before and after the start of the fur

trade. Perhaps they stayed on the land for non-aboriginal

purposes after the start of the fur trade, or gradually used the

land less and less for aboriginal purposes. But there is no way

of establishing precise categories of land abandoned, and

"other."

closed.

I doubt if it is possible to consider the categories

Gradually, the Indians of this territory have been leaving

the land and migrating to the villages for upwards of 90 years

Part. 19

Other Defences

803

__________________________________________________________________

or more. Some of them have continued to use the land, some much

more, and some much less, than others. I do not think I should

be quick to treat aboriginal use as abandoned, but common sense

dictates that abandoned rights are no longer valid and land must

be used or lost.

I must also be careful not to treat abandonment as

extinguishment, as each of these principles is different. Even

with abandonment, however, the honour of the Crown is involved

because it is the Crown that asserts this legal consequence.

The Court cannot permit the Crown to pounce too quickly when

there are gradually changing circumstances by treating every

absence as an abandonment.

What I must do is look at the evidence and decide whether,

as a question of mixed fact and law, aboriginal use in a

particular area has been abandoned.

I shall, of course, only

consider the territories within the areas defined in Part 17,

and I shall only mention those for which I think the evidence

requires consideration of this question of abandonment.

So counsel will know how I have proceeded in this part of

the case I wish to explain that I first read the descriptions of

the territories in Canada's Outline of Argument, s. IX. For

Part. 19

Other Defences

804

__________________________________________________________________

those territories that admitted an argument of abandonment I

then re-read the plaintiff's summary of the territories in their

Outline, Vol. VI, and their submissions. As plaintiff's summary

was written before Canada's, I also read the plaintiff's Reply

even though Mr. Macaulay objected that this Reply was case

splitting. I have decided that in fairness I should consider

the plaintiff's Reply as they prepared their summaries of the

territories for the purpose of establishing internal boundaries,

not in answer to an argument on abandonment. The plaintiffs

dealt specifically with abandonment only in their Reply. Mr.

Macaulay's objection is accordingly disallowed.

Part. 19

Other Defences

805

__________________________________________________________________

2.

Gitksan Territories

1. Wiigyet - Kuldo and Deep Canoe Creek

Canada says this territory was used until the 30's or 40's,

and the southern portion is now being used for some hunting and

trapping, but there is no evidence the part north of Kuldo has

been used since the mid-50's.

The plaintiff's do not really answer this, but stress that

this is an ancient territory parts of which have been used from

time to time, and that there has never been any intention to

abandon it.

What troubles me about this territory is that its

classification as "used" aboriginal land depends upon the

evidence of, and use by, Mr. Peter Muldoe (Gitludahl) who seems

to be the only source of evidence of aboriginal use of a great

number of territories. It will be remembered that quite

recently he was the central figure in the amalgamation of 5

houses, including this one of Wiigyet, and it is understandable

that he would have little occasion to use this territory now

that he has acquired rights to other territories much closer and

more convenient to Kispiox. The evidence rather suggests the

Part. 19

Other Defences

806

__________________________________________________________________

burden of aboriginal use depends upon the activities of a few

chiefs.

2. Wiigyet- Baskyatsinhlikit Territory

This small territory is across the Skeena River from the

one just mentioned. There is no evidence this territory has

been used except for one occasion when Mr. Muldoe shot one or

more moose on it prior to 1954.

3. Wiigyet - Miinhl Gwogood (Mount Horetsky) Territory

This is an small territory which includes only the

magnificent Mount Horetsky, elevation 5330', which rises in

solitary splendour out of broad, verdant valleys and is a

landmark visible for great distances. There is no specific

evidence it has ever been used for aboriginal purposes.

4. Luus - Xsi Duutswit Territory

This is another territory in the Kuldo area which was

described by Mr. Muldoe who says he hunted and trapped on this

territory with Abel Tait (Luus) who died in 1946.

5. Gwiiyeehl - Xsi Git Gat Gaitan (Cullon Creek)

This territory is 12 miles north west of Kispiox. It was

Part. 19

Other Defences

807

__________________________________________________________________

also described by Mr. Muldoe. There is no evidence of

aboriginal use except some hunting by Mr. Muldoe. Some members

of the house of Guiiyeehl have cabins on this territory, but

there is no evidence what they do there.

6. Gwiiyeehl - Lip A'Heetxwit (Baldy Mountain)

This small territory is located about 30 miles north of

Kispiox. Its circumstances are about the same as for the last

mentioned territory of this House except there are no cabins

here. Again, Mr. Muldoe has made one or two hunting trips into

this area.

7. Wii Elaast - Giist Territory

This small territory is about 5 miles south of Kuldo. Mr.

Muldoe says he has hunted on it, and passed over it on his way

to Kuldo. It is unlikely the territory has been used since the

1950's.

8. Wii Elaast - Waulp Territory

This small territory is located about 11 miles north of

Kispiox. Mr. Muldoe says it was used for hunting and some

trapping years ago. He has not been on the territory for over

15 years, and it is unlikely it has been used for aboriginal

Part. 19

Other Defences

808

__________________________________________________________________

purposes for upwards of 30 years.

9. Geel - Lax Didax Territory

This territory is located about 45 miles north of Kispiox

in the Kispiox River valley. The evidence is inconclusive,

based largely upon hearsay repeated by Mr. Muldoe who has not

used the territory. It appears that large parts of this

territory have not been used for upwards of 30 years.

10. Geel - Luu Andilgan Territory

There is evidence from Mr. Muldoe of occasional hunting and

trapping on this territory which is about 40 miles north of

Kispiox, but there is no detail as to when these activities took

place.

11. Antgulilbix - Xsi Wis An Skit (Upper Kispiox River)

This territory is about 50 miles north of Kispiox on the

Upper Kispiox River. Mr. Muldoe gave evidence about this

territory as did Mary Johnson (Antgulilbix). Mr. Muldo has no

personal knowledge of trapping on the territory since the 1930's

although he was there once via small aircraft about 15 years ago

when he saw a small cabin which no longer exists. Mary Johnson

said she was there before she retired. She was 80 years when

Part. 19

Other Defences

809

__________________________________________________________________

she gave her evidence in 1987. She says a part of this

territory was given to her House as compensation for the murder

of an earlier chief, Yeel, which, according to legend, occurred

many years before the arrival of the white man.

12. Antgulilbix - Andamhl Territory

This territory was discussed in Part 17. It is located

immediately west of the village of Kispiox. Indian legend

describes a village called Wilt Gallii Bax on the mountain at

Andamhl which was abandoned before Mrs. Johnson was born. There

is evidence of occasional hunting, trapping and berry picking

etc.

13. Wii Minosik - Dam Sgan Djixit (Smokee Lake) Territory

This small territory, northwest of Kuldo was described by

Mr. Muldo although he seems never to have been on the territory.

His travels in the vicinity were with Abel Tait who died in

1946. The old telegraph trail passes through this territory and

there was a campsite, but there is no evidence of serious

trapping or hunting.

14. Wii Minosik - Gwin Dak Territory

This territory is approximately 10 miles northwest of

Part. 19

Other Defences

810

__________________________________________________________________

Kisgegas. It was described by James Morrison who has

occasionally, and as recently as 1986, hunted goats in this

area. While Mr. Morrison was formerly in a House claiming

territories in this area, he is now a Kitwankool chief.

15. Wii Gaak - An Gil Galanos And Xsu Wiki As (Sustat

River)

This huge territory stretches about 70 miles from east of

Kisgegas to well north of the Sustat River. There is evidence

of hunting and trapping prior to the mid 30's and hardly nothing

since then except for an apparent revival of interest since the

commencement of this action. Mr. Sterritt gave evidence about

the northern part of this territory but said he was not on it

between 1930 and 1984. Thomas Wright said he had been on the

territory when he was about 12 years old, and that old houses

there had all "rotted down."

There is some evidence of trapping by Thomas Jack at some

time along the northern edge of the central area, and some

second hand evidence about other minimal activities.

James Morrison trapped in the southern area as recently as

1956 or 1957 and Mr. Sterritt started to trap there in 1984.

Part. 19

Other Defences

811

__________________________________________________________________

There is also scattered evidence of other activity on this

territory "a long time ago."

16. Tsabux - Tsim Gwi Dagantwit

This is a small, mountain top territory (Shedin Peak,

elevation 8250') 25 miles north of Kisgegas. There is only

evidence of one mountain goat hunting expedition in 1957 or

1958.

17. Tsabux - Lax An Hakw (Shelf Ridge) Territory

This territory is immediately north of Kisgegas. There is

no evidence this territory has been used except for hunting in

the mountains prior to the 1960's. Mr. Morrison, however, said

he had hunted on this territory in the 1980's.

18. Tsa bux - Xsu Ahl Masxw (Red Creek) Territory

Only the southernmost portion of this territory is within

the aboriginal area I have defined. There is evidence that when

Abel Sampson was 13 - 15 years old he hunted and trapped on some

part of this territory with his father. This would have been in

the late 1940's. The entire Bear Lake community was abandoned

in the early 1950's. Mr. Sampson moved to Hazelton when he was

15 years and has not returned the territory since then. When

Part. 19

Other Defences

812

__________________________________________________________________

asked why he left Bear Lake he replied:

"The only reason how we can stay up there is

from trapping. The trapping got so poor that they had

a store up there, and pretty soon you can't afford to

get the airplane in to pay for stuff and we had to

move into town." (Exhibit 600A, pp. 23-4).

19. Nii Kyap - Xsu Gwin Gyila'a (Squingula River)

This territory is west of Bear Lake. There was trapping on

this territory prior to 1950. Mr. Jack testified that he and

others trapped there before they moved to Burns Lake in 1950.

After that he returned for only two years and has not been back

since. Joshua MacLean is the current holder of this name but he

has never been to this territory.

20. Miluulak - Xsi Adee'a (Sam Green) Territory

Aboriginal activities on this territory, located near

Kisgegas, depend upon the evidence of Robert Jackson Sr. who

moved away from Kisgegas when he was 17 years and lived in

Prince Rupert for many years, returning to Hazelton in 1979.

While he was living at the coast he returned regularly to trap

and hunt and he has done so since his return.

21. Haiwas - Djil Djila (Driftwood Range) Territory

Part. 19

Other Defences

813

__________________________________________________________________

What I said in No. 18 above, applies also to this

territory.

22. Gyologyet - Xaagan Gaxda (Kuldo Creek) Territory

There is no evidence of activity on this territory since

1951. The chief claiming this territory, Mary MacKenzie, has

never been on this or on the other 2 territories she claims.

23. Gyologyet - Xsana Lo'op (Shanalope Creek) Territory

Only part of this territory is in the aboriginal area.

There is no specific evidence of use of this territory.

24. Djogaslee - Sagat Territory

This territory is about 10 miles south east of Hazelton.

It is partly in an Indian Reserve. There is an old, abandoned

Indian village on the territory, and there has been occasional

berry picking but very little other activity.

25. Gwinin Nitxw - Maxhla Dida'at Territory

This large territory stretches from about 15 miles north

east of Kuldo all the way north to the Skeena. Apart from some

trapping prior to 1940, and some subsequent hunting in about

one quarter of the territory, there is little, if any, evidence

Part. 19

Other Defences

814

__________________________________________________________________

of aboriginal use.

26. Baskyelaxha - Angodjus (Poison Mountain) Territory

This territory is on the Skeena River 15 miles north of

Kuldo. There is no evidence of aboriginal use.

27. Ma'uus - Gwiis Xsagan Gaxda (Kuldo Creek) Territory

There is evidence of use of this territory around 1916 or

1917, and subsequently, but nothing since about 1930.

28. Ma'uus - Xsa Gay Laaxan Territory

There is no evidence of aboriginal use of this territory

apart from Martha Brown seeing Henry Brown trap on it before

there was a farm there. Henry Brown was born in 1896 so it is

likely his trapping occurred many years ago.

29. Gutginuxw - Lax Xsan Djihl Territory

There is an abandoned village site on this territory,

possibly on an Indian reserve close to Kispiox. There is

general evidence of undated fishing and berry picking, but

little else.

30. Gyetem Galdoo - An Djam Lan Territory

Part. 19

Other Defences

815

__________________________________________________________________

At most, there is evidence of occasional hunting on this

territory which is 15 miles east of Hazelton on the Suskwa

River.

31. Spookw - Stekyawdenhl (Rocher de Boule) Territory

I discussed this territory in Part XVI. It is located

about 3 miles east of Hazelton. There is hardly any evidence of

aboriginal use. Perhaps its proximity to Hazelton explains

this, but there are substantial forested areas on the lower

slopes of Stekyoodem which could be used for this purpose. I

suspect many Indians living in the Skeena villages might use

this territory for hunting regardless of House claims to

ownership.

32. Yagosip - Max Hla Gandit Territory

There is hardly any evidence of aboriginal use of this

territory which is also situated close to Hazelton and

Hagwilget.

33. Yagosip - An Guuxs Di Gehlx Territory

This territory is located about 15 miles north of Kispiox.

There is no specific evidence of aboriginal use.

34. Nika Teen - Lax Lix Hatwit (Mount Glen) Territory

Part. 19

Other Defences

816

__________________________________________________________________

This is a small territory very close to Hazelton. It is

unlikely that there would be aboriginal activities on this

territory, and there is no evidence in that regard.

35. Nika Teen - Dam Gan Gyuuxs Territory

The same comments as made about the proceeding territory

apply here.

36. Wii Goob'l - Sxa Galliixanwit (Sallysout Creek)

This territory is located about 30 miles north west of

Kuldo. There is evidence of activity on this territory in the

30's, but no admissible evidence of any subsequent activities.

37. The Gitksan "Skeena Bulge"

There are 24 territories in what I call the "Skeena Bulge,"

which were all verified in the Territorial Affidavit of Stanley

Williams (Gwis Gyen). Mr. Williams, like Mr. Muldoe was one of

the most prominent Gitksan Chiefs. Unfortunately Mr. Williams

was one of a number of Gitksan and Wet'suwet'en chiefs, who died

during the course of the trial. He had previously given his

evidence on Commission, and he was cross-examined on his

Territorial Affidavit.

Part. 19

Other Defences

817

__________________________________________________________________

There are other territories in the "bulge" verified by

other chiefs, but I think it will be convenient to group most of

them together. To a large extent, the evidence about these

territories was also given by Mr. Williams about his own

activities much of which occurred a long time ago, although he

remained very active as a hunter up to the time of trial. His

evidence is sprinkled with references to hunting with persons

long since deceased, such as with William Holland on one of the

territories of Haalus. William Holland died in 1932. In the

case of the Gasa Lax Lo'Obit Territory, counsel for Canada says:

"There is no evidence before the Court

of any Plaintiffs' presence on the territory

after Simon Turner died in 1947."

The evidence about use of Lelt's Xsu Gwin Aaxwit (Quill

Creek) Territory seems to be confined to the period prior to the

death of Solomon Harris in 1938. There is evidence of trapping

on Gwag'lo's Miinhl Deekwit Territory prior to 1947. The

evidence about use of Gwag'lo's Xsi Noon (Deep Canyon Creek)

Territory is limited to a statement by Mr. Hyzims that Henry and

Albert Wilson trapped there, but Mr. Hyzims has not been on the

territory.

Part. 19

Other Defences

818

__________________________________________________________________

38. Hanamuxw - Xsuwii Luu Negwit (Kitsuns Creek) Territory

This territory is about 4 miles south of Kitsegukla. Mrs.

Ryan (Gwans) described this territory on behalf of this House of

which she is a prominent member. She has not been on this

territory since she was 10 years old. She was 72 when she gave

her evidence at trial. She said others had used the territory.

The foregoing are by no means all of the Gitksan

territories. I have not mentioned those which are north of the

aboriginal boundary line I have drawn across the northern part

of the territory, and I have not included those territories

where there is some evidence of recent aboriginal activities.

Even in the case of many of those territories, the evidence is

sparse confirming my impression that this is a very empty land.

3.

Wet'suwet'en Territories

1.

Gisdaywa - Benwenii Ben (Owen Lake) Territory

Most of this territory seems to have been abandoned around

1931 when the Joseph family moved to Hagwilget. Since then

there has only been some trapping by cousins (in the south-

Part. 19

Other Defences

819

__________________________________________________________________

west), and occasional visits since Mr. Alfred Joseph became

chief in 1974. Mr. McIntyre of the Department of Indian

Affairs, who had responsibility for the Felix George Indian

Reserve on this territory said he never saw anyone living at

Owen lake or on the reserve.

2.

Madeek - Bex C'Ediil Yiiz Territory

This territory is about 25 miles south of Smithers. There

is no evidence it has been used for aboriginal purposes. There

was evidence, however, about a cabin on this territory occupied

by Houston Tommy who was there when Mr. Alfred Joseph was very

young. It is not know how long Houston Tommy remained on the

territory.

3.

Woos - Woos (Smithers Area) Territory

This area includes the village of Smithers which is the

largest non-Indian community in the territory. There is a large

registered trapline in the territory south of Smithers which was

once used by Jean Baptiste but it has not been used since 1951.

Considering the development of Smithers, a substantial reduction

of aboriginal activity in the are is not surprising, but it is a

very large territory with much unoccupied land.

Part. 19

Other Defences

820

__________________________________________________________________

4.

Woos - Xeel Tats'Eliiyh (Upper Harold Price Creek)

This area is about 15 miles north east of Smithers. The

evidence suggest Alfred Mitchell hunted in this area up to 3 or

4 times prior to 1955.

5.

Kweese - Taldzee Weyeez (Shea lake) Territory

This mountainous territory is on the westerly external

boundary about 30 miles south west of Smithers. It was once used

for hunting and trapping by Mooseskin Johnny, an ancestor of the

present chief Florence Hall (Kweese). There is limited evidence

of aboriginal use since the death of Mooseskin Johnny in 1930,

or at least after 1937. Mrs. Hall was not on the territory from

1937 to 1962, and only infrequently since then.

6.

Kweese - Sdeets'Eneegh (Elwyn Lake) Territory

The last known resident on this territory was August Pete

who died in 1952. He operated a farm on a part of this

territory which may not have been an aboriginal activity, but he

undoubtedly did some hunting and fishing if not trapping in

addition to running his farm. Florence Hall and her family

lived here until August Pete pre-empted some land. Her father

worked as a section hand on the CNR until he was laid off many

years ago and the family returned to live at Walcott which is

Part. 19

Other Defences

821

__________________________________________________________________

between Telkwa and Houston.

7.

Smogelgem - Cees Ng'Heen (Harold Price Creek)

There has been no trapping on this territory for about 25

years, but some moose hunting.

8.

Smogelgem - C'Edii Toostaan (McQuarrie Lake) Territory

This territory is just south of Smithers. There was

trapping on this territory prior to 1953, and there are

traplines on this territory but they do not seem to be in active

use.

9.

Smogelgem - Mesdzii Kwe (Parrott Creek) Territory

This territory is about 45 miles south of Smithers. There

is no evidence it has been used for aboriginal purposes.

10.

Smogelgem - Gguusgii Bewenii (Perow) Territory

This territory is also south west of Smithers. There is

only general evidence from which an inference of recent

aboriginal use could not easily be made.

11. Smogelgem - Loox Kwe (Uyenii) (Clore Creek) Territory

This relatively small territory includes the easterly edge

Part. 19

Other Defences

822

__________________________________________________________________

of the coastal mountains and the south westerly external

boundary about 50 miles from Smithers. There was only one trap

line on this territory which an Indian woman sold in 1940. A

non-Indian has held this trap line since 1945. The Territorial

affiant had only been on the territory once, in 1938. He

deposed that this territory is sometimes said to belong to Klo

Um Khun who is a chief of the same clan as Smogelgem and he

believes the territory belongs to the latter.

12. Samooh - Guzeyh Keeyex (Gilmour Lake) Territory

This small territory is 35 miles south-east of Smithers.

There is only meagre evidence about it, but it seems a portion

of a trap line covering part of this territory was sold by an

Indian to a white person in the 1930's. There is no specific

evidence of recent use. It is interesting that, in addition to

claiming this small territory, Samooh also claims a large

territory in the far south west corner of the territory.

13. Hagwilnegh - Tsee Zuul (China Nose Mountain) Territory

The only evidence of aboriginal use of this territory is

the statement of Johnny David that he and his father trapped in

this general area. His father died in 1908.

Part. 19

Other Defences

823

__________________________________________________________________

14. Wah Tah Kwets - Coos Tl'aat (Round Lake) Territory

This territory is just south of Telkwa, and is bisected by

the transportation corridor. There is remarkably little

evidence of aboriginal use. Round Lake Tommy moved away years

ago to farm at Barrett Lake, and there is a decided conflict in

the evidence about presence on the territory. Canada says Pat

Namox, brother of John Namox (Wah Tah Kwets), said he had not

been on this territory for about 60 years, while the plaintiffs

say in argument that he has travelled on the territory recently.

Peter Jim, a member of the House holds a trap line on the

territory but there is no evidence of when it was last used.

15. Wah Tah Kwets - Neeldzii Ciik (Houston) Territory

This territory surrounds the non-Indian village of Houston.

Lucy Bazil described how her parents used this land before her

father died and her mother moved to Moricetown in 1941. Even

before that time she said she could not remember "anyone being

there" Later, however, she said "just anybody" used the

territory but this was again qualified to members of the House,

although there were exceptions. The plaintiff's point out that

the development of the Village of Houston, where there is a very

large sawmill, may be the cause of the limited use of this

territory.

Part. 19

Other Defences

824

__________________________________________________________________

As with the Gitksan, I have only commented on those

territories within the aboriginal area where an argument could

be made that the territory has been abandoned.

I have no doubt aboriginal activities have fallen very much

into disuse in many areas. This was admitted by several Indian

witnesses who observed that many of their young people have very

little interest in aboriginal pursuits. The aboriginal

activities that are being pursued now may be indistinguishable

in many cases from the wilderness activities enjoyed by many

non-Indian citizens of the province.

4.

Conclusions on Abandonment

While recognizing that a right which is not used can be

treated as abandoned, the law does not like the principle

because it lacks certainty. It also requires the Court to look

objectively at what may well be a subjective state of mind.

Have the plaintiffs abandoned use in the sense that they must be

taken by their actions, or inactions, to have given it up?

Part. 19

Other Defences

825

__________________________________________________________________

While this case is very close to the line, and I do not

think there is very much aboriginal activity in the territory, I

do not think I can safely conclude that the intention to use

these lands for aboriginal purposes has been abandoned even

though many Indians have not used them for many years. This is

an issue where the onus of proof rests upon the defendants, and

I cannot overlook the facts, firstly, that there are several

thousand Gitksan and Wet'suwet'en persons in the territory, and

secondly my understanding of these peoples, as I have come to

know them, is that many of them do indeed still hunt and fish

and pick berries in season.

Understandably, they were not all called to give evidence

at the trial, and although some of the elders and chiefs who

have been managing this litigation may be resting in the

villages where they live, others such as Art Mathews Jr. are

still participating in aboriginal activities. On the occasion

of my visit to Tenimgyet's smoke house in June 1988 I noticed

his elderly father Art Mathews Sr. had a small gill net out in

the Skeena with several sockeye salmon already caught. On the

same trip I visited Glen William's smoke house at the back of

his modern home in Kitwangak where I had an opportunity to

sample the salmon he was curing.

Part. 19

Other Defences

826

__________________________________________________________________

The proper application of the principle of abandonment

would require me specifically to delineate the precise areas

abandoned. This would create an unworkable patchwork even more

unrealistic than the internal boundaries. I do not think the

evidence of abandonment is sufficiently precise to permit so

many fine distinctions.

In my view, it would be unsafe, and contrary to principle,

to apply the principle of abandonment to such an uncertain body

of evidence. It may be noted, however, that limited use of the

territories bears on the question of honourable reconciliation

which I have already mentioned in Part 15.

Part. 19

Other Defences

827

__________________________________________________________________

PART 19. OTHER DEFENCES

The province argued that the plaintiffs, by accepting and

using reserves, and by conforming generally with the law of the

province, have given up their aboriginal rights. Alternatively,

it was argued that throughout this entire history Canada has, on

behalf of the Indians, bound them by constitutional arrangements

and agreements with the province. The province, particularly

relies upon the 1924 full and complete settlement mentioned in

PC 1265 which acknowledges the "... full and final adjustment

and settlement of all differences between the [said] governments

respecting Indians and Indian lands in the province." The

province argues this constitutes a Release in favour of the

province of all of the plaintiffs' claims.

That this is so could be argued from the dicta of Judson J.

in Calder where, he said:

"Nevertheless, the federal authority

did act under its powers under s. 91 (24) of

Part. 19

Other Defences

828

__________________________________________________________________

the B.N.A. Act. It agreed, on behalf of the

Indians, with the policy of establishing

these reserves." (my emphasis)

With respect, it is not necessary to disagree with the

foregoing to conclude, as I do, that the consideration for

reserves, at best, was village sites, not user rights to lands

beyond the villages. Further, the agreement between the

province and the federal authority to adjust reserves in this

century was clearly recognized by the parties themselves as an

agreement only about reserves, and the Commissioners, who

represented both levels of government, made representations to

the Indians of the territory that their rights additional to

reserves, if any, were not the subject of their proceedings. In

fact, it was expressly stated those questions would be resolved

in Court where we now are.

The honour of the Crown precludes

me from giving effect to this defence. In my judgment, the

plaintiffs have not directly or indirectly released their causes

of action.

Similarly, I do not find, as a matter of law, that the

acceptance by the plaintiffs of British Columbia law, or

conformity with it, precludes them from advancing their claims

for aboriginal interests. In my view, the Indians' claims have

Part. 19

Other Defences

829

__________________________________________________________________

not been discharged by any conduct on their part.

Part. 19

Other Defences

830

__________________________________________________________________

PART 20. THE COUNTERCLAIM OF THE PROVINCE

The dismissal of all the plaintiffs' claims except the

declaration of fiduciary duty greatly reduces the scope of the

Counterclaim.

Relying upon the provisions of the Constitution, the Terms

of Union and subsequent arrangements between Canada and the

province such as PC 1265, the province argues that the

plaintiffs' claims are the responsibility of Canada under Clause

1 of the Terms of Union by which Canada assumed responsibility

"...for the debts and liabilities of British Columbia existing

at the time of Union."

From this, the province argues, the plaintiffs' only

possible claim is against Canada for compensation.

I shall deal with the two parts of the Counterclaim

separately.

Part 21.

The Judgment in this Case

831

__________________________________________________________________

First, the province claims a declaration against the

plaintiffs that they have no right or interest in and to the

territory. While I agree that the benefit of the fiduciary

obligation I have found may not be a right or interest in the

land of the territory, that does not entitle the province to the

declaration it seeks. The dismissal of all of the plaintiffs'

claims except for the declaration of fiduciary duty makes such

relief under this paragraph of the Counterclaim unnecessary.

Secondly, the province claims a declaration that the

"...plaintiffs' cause of action, if any, in respect of their

alleged aboriginal title, right or interest in and to [the

territory] is for compensation from ... Canada." This result,

the province argues, flows from the constitutional instruments.

What the province is saying is that the plaintiffs cannot

succeed against the province in any respect, and that if they

had such a claim at the date of Confederation it must, because

of the constitutional arrangements between Canada and the

province, be pursued as a claim for compensation from Canada.

With respect, I cannot accept that submission. The

Part 21.

The Judgment in this Case

832

__________________________________________________________________

plaintiffs' claim is not for compensation but for the right to

require the Crown to keep its promise to permit them to use the

vacant land of the territory. It has the Crown's promise to

that effect which can only be enforced against the province. If

the province wishes to be indemnified with respect to this

liability, or to seek contribution from Canada, it must do so in

proceedings against Canada, not by directing the plaintiffs into

new causes of action.

I would dismiss the Counterclaim.

Part 21.

The Judgment in this Case

833

__________________________________________________________________

PART 21. THE JUDGMENT IN THIS CASE

The foregoing answers the legal issues arising for

decision in this case. It remains only to state my conclusions

in more precise form and to add some comments. Nothing I have

said applies in any way to any lands set aside as Indian

reserves.

(1) The action against Canada is dismissed.

(2) The plaintiffs' claims for ownership of and

jurisdiction over the territory, and for aboriginal rights in

the territory are dismissed.

(3) The plaintiffs, on behalf of the Gitksan and

Wet'suwet'en people described in the Statement of Claim (except

the Gitksan people of the Houses of the Kitwankool chiefs), are

entitled to a Declaration that, subject to the general law of

the province, they have a continuing legal right to use

unoccupied or vacant Crown land in the territory for aboriginal

Part 21.

The Judgment in this Case

834

__________________________________________________________________

sustenance purposes as described in Part 15 of these Reasons for

Judgment.

(4) The plaintiffs' claims for damages are dismissed.

(5) The Counterclaim of the province is dismissed.

(6) In view of all the circumstances of this case,

including the importance of the issues, the variable resources

of the parties, the financial arrangements which have been made

for the conduct of this case (from which I have been largely

insulated), and the divided success each party has achieved,

there will not be any order for costs.

Part 21.

The Judgment in this Case

835

__________________________________________________________________

PART 22. SOME COMMENTS

Having spent nearly four years considering these important

questions I hope I may be forgiven for adding these brief

comments.

I have already said that I do not expect my judgment to be

the last word on this case. I expect it to be appealed and I do

not presume to suggest what course the parties should follow

from this point forward.

Assuming that discussions between both governments and the

Indians will continue, I respectfully offer the following for

their consideration.

The parties have concentrated for too long on legal and

constitutional questions such as ownership, sovereignty, and

"rights," which are fascinating legal concepts. Important as

these questions are, answers to legal questions will not solve

Index of Schedules

836

__________________________________________________________________

the underlying social and economic problems which have

disadvantaged Indian peoples from the earliest times.

Indians have had many opportunities to join mainstream

Canadian economic and social life. Some Indians do not wish to

join, but many cannot. They are sometimes criticized for

remaining Indian, and some of them in turn have become highly

critical of the non-Indian community.

This increasingly cacophonous dialogue about legal rights

and social wrongs has created a positional attitude with many

exaggerated allegations and arguments, and a serious lack of

reality.

Surely it must be obvious that there have been

failings on both sides. The Indians have remained dependent for

too long. Even a national annual payment of billions of dollars

on Indian problems, which undoubtedly ameliorates some hardship,

will not likely break this debilitating cycle of dependence.

It is my conclusion, reached upon a consideration of the

evidence which is not conveniently available to many, that the

difficulties facing the Indian populations of the territory, and

probably throughout Canada, will not be solved in the context of

legal rights. Legal proceedings have been useful in raising

awareness levels about a serious national problem. New

Index of Schedules

837

__________________________________________________________________

initiatives, which may extend for years or generations, and

directed at reducing and eliminating the social and economic

disadvantages of Indians are now required. It must always be

remembered, however, that it is for elected officials, not

judges, to establish priorities for the amelioration of

disadvantaged members of society.

Some Indians say they cannot live under the paternalism and

regulation of the Indian Act, but neither can many of them live

without the benefits it provides. Some Indians object to the

imposed Band structure created by the Act but it would be

foolish to discard it until something acceptable to a majority

of the Indians has been fashioned to take its place.

Clearly a new arrangement is required which should be

discussed between both levels of government with the Indians

other than in the context of land claims. The first priority

should be for the two communities to find out what they expect

of each other. In a successful, ongoing relationship, there

must be performance on both sides.

This, however, should not be considered an endorsement for

"self government" because details are required before any

Index of Schedules

838

__________________________________________________________________

informed opinion may be given. Too often, catchy phrases gain

quick recognition, momentum and even acceptance without a proper

understanding of the real meaning or consequences of these

sometimes superficial concepts. Also, different arrangements

might be appropriate for different areas and the desired result

may sometimes best be attained in stages.

Compared with many Indian Bands in the province, the

Gitksan and Wet'suwet'en peoples have already achieved a

relatively high level of social organization . They have a

number of promising leaders, a sense of purpose and a likely

ability to move away from dependence if they get the additional

assistance they require.

I cannot, of course, speak with

confidence about other Indian peoples because I have not studied

them. I am impressed that the Gitksan and Wet'suwet'en are

ready for an intelligent new arrangement with both levels of

government.

I am not persuaded that the answers to the problems facing

the Indians will be found in the reserve system which has

created fishing footholds, and ethnic enclaves. Some of these

reserves in the territory are so minuscule, or abandoned, that

they are of little or no use or value. On the other hand, it is

Index of Schedules

839

__________________________________________________________________

obvious that some village reserves should have been larger but

there is no profit in trying to assign blame for this. The

solution to problems facing Indians will not be solved by

another attempt to adjust reserves because that system has been

tried and it has failed, and there are other ways to correct

that historical failure.

It must be recognized, however, that most of the reserves

in the territory are not economic units and it is not likely

that they can be made so without serious disruption to the

entire area which would not be in the best interest of anyone,

including the Indians. Eventually, the Indians must decide how

best they can combine the advantages the reserves afford them

with the opportunities they have to share and participate in the

larger economy, but it is obvious they must make their way off

the reserves. Whether they chose to continue living on the

reserves is for them to decide. Care must always be taken to

ensure that the good things of communal life are not sacrificed

just on economic grounds. As Mr. Sproat predicted in 1876, it

may still be necessary to "...persevere, if need be, through a

succession of failures."

In any new arrangement, some failures must be expected but

we should at least be able to identify them. The worst thing

Index of Schedules

840

__________________________________________________________________

that has happened to our Indian people was our joint inability

to react to failure and to make adjustments when things were not

going well. As social improvement can only be measured in

generations, the answer to these social questions, ultimately,

will be found in the good health and education of young Indian

people, and the removal of the conditions that have made poverty

and dependence upon public funding their normal way of life.

There must, of course, be an accommodation on land use

which is an ongoing matter on which it will not be appropriate

for me to offer any comment except to say again that the

difficulties of adapting to changing circumstances, not limited

land use, is the principal cause of Indian misfortune.

Lastly, I wish to emphasize that while much remains to be

done, a reasonable accommodation is not impossible. After the

last appeal, however, the remaining problems will not be legal

ones. Rather they will remain, as they have always been, social

and economic ones.

Smithers, and

Index of Schedules

841

__________________________________________________________________

Vancouver, B.C.

March 8, 1991

Index of Schedules

842

__________________________________________________________________

Index of Schedules

Page

Schedule 1.

Schedule 2.

Itinerary of View of Territory June, 1988

682

689

Description of Plaintiffs, from Amended

Statement of Claim

Schedule 3.

Schedule 4.

Copy of Royal Proclamation, 1763

694

701

Extract of Submission of Province on

Oral Histories

Schedule 5.

Schedule 6.

Territorial Affidavit of William Blackwater, 745

(Ex. 605)

Summaries of Territorial Arguments

784

Index of Schedules

843

__________________________________________________________________

SCHEDULE 1.

ITINERARY OF VIEW OF TERRITORY JUNE, 1988

I took the first six weeks of evidence in May-June 1987 at

Smithers, a community situated in the Bulkley Valley in

approximately the centre of the territory. Smithers is a

community of about 7,000 persons, mainly of European descent,

who have made the Bulkley Valley into a fertile farming and

dairy region. Smithers is on the main line of the northern

transcontinental C.N.R. Railway and it is also on Highway 16

which is sometimes known as the Yellowhead Highway which

traverses generally westerly from Edmonton through the Rocky

Mountains by the Yellowhead Pass to Prince George and then

northwesterly through Burns Lake, Smithers, Hazelton, Terrace

and ultimately to the Pacific coast at Prince Rupert. During my

six weeks in Smithers in May and June of 1987 I usually took

advantage of the long spring evenings to visit various areas in

the territory including several trips to each of Kitwancool,

Gitwangaak, Kitsegulka, Kispiox, the Hazeltons and Houston, plus

Schedule 2.

844

__________________________________________________________________

evening trips by private logging roads to Smithers Landing on

Babine Lake, Fulton and Topley Landing, and a single trip to

Burns Lake. In this way I gained a good appreciation of the

Bulkley and Skeena River corridors and their villages where at

least 90% of the residents of the area, including most of the

Gitksan and Wet'suwet'en, make their homes.

During the course of the trial I have, of course, been

exposed to countless maps and photographs which describe the

topography and important landmarks in the territory.

Then, on June 6 and 7, 1988, at the request of and

accompanied by counsel in one helicopter, and by three Chiefs

and a forester representing the Provincial Department of

Forestry in a second helicopter, I was taken to and shown many

of the remote northerly and southerly portions of the territory.

On June 6th we visited the northern territories claimed by the

Gitksan people and Mr. Neil Sterritt, a Gitksan Hereditary

Chief, provided us with a running commentary on the important

landmarks. On June 7th we visited the areas claimed by the

Wet'suwet'en people and Mr. Alfred Joseph, a Wet'suwet'en

Hereditary Chief, was our principal tour guide.

Schedule 2.

845

__________________________________________________________________

On June 8, 1988, again accompanied by counsel, I motored

down the Skeena River from K'san (Old Hazelton) to Kitwanga and

beyond where many of the fishing sites I heard about in the

evidence were pointed out to me.

Before I describe the magnificent country we viewed, I wish

to say that no one can gain a proper appreciation of the

overwhelming vastness and isolation of this magnificent but

almost empty territory without spending at least the amount of

time I spent there. I also wish to add that I wish I could have

spent more time in the territory but helicopter travel is very

expensive and although logging roads are pushing further and

further into the territory, they are not always available for

private traffic, and exploration by land in such country is a

long, slow, tedious and often uncomfortable enterprise.

On June 6th we started at Smithers and after a short detour

to the west to avoid clouds in the Debenture Peak area, we

travelled north about 10 miles east of the westerly external

boundary of the territory, past French Peak and Mt. Horetzky

(where we were unable to land because of bad weather) to Kotsine

Mountain, where we stopped near its peak in a driving rainstorm

to make observations of the Babine Range to the southeast and

Schedule 2.

846

__________________________________________________________________

other landmarks of interest. We swung east along the Kotsine

River around the south end of the Driftwood Range and then

turned north along the right-of-way of the Dease Lake extension

of the B.C. Railway (where track is said to be in ``horizontal

storage'' as this line has been abandoned for some years) until

we landed again at The Thumb west of Comb Peak which overlooks

Bear Lake. We then flew north-westerly to an abandoned airstrip

of a B.C. Rail contractor just north of the Sustut River where

there was a fuel cache. We then proceeded generally in a

westerly direction along the Sustut to its confluence with the

Skeena where we left the B.C. Rail right-of-way, which continues

north towards its unfortunate destiny at Dease Lake. We

continued westerly along the Skeena. On this leg of our voyage

of exploration we passed but did not stop at the ancient but now

totally deserted village of Gitengas where there are no

buildings still standing. We then left the Skeena and went north

up the Slamgeesh River where we stopped for lunch at a point on

the old Telegraph Trail where Chief William Backwater was born

and grew up. There are no residents there now and only a few

grave buildings and one small, totally uninhabitable building

remains. We then flew south to rejoin the Skeena and then

westerly along Steep Canyon Creek over the height of land at its

source and then northward along Vile Creek, the Nass and Bell-

Schedule 2.

847

__________________________________________________________________

Irving Rivers into the northwest corner of the territory where

we were within 20 miles or so of Stewart on the Alaska border.

After stopping there we turned south along the other side of the

wide valley that accommodates Highway 37, crossing Bowser Lake,

which has the same glacial colour as Lake Louise, and stopped

for fuel in the land of the Kitwancool chiefs and Meziadian

Lake.

We then proceeded south through the lake area to the west

of Fred Wright Lake and then east along Canoe Creek and then

north along the Skeena past New Kuldo which is a completely

deserted clearing on the banks of the Skeena with no visible

buildings. A few miles further north we stopped at Old Kuldo to

examine the site of this ancient village. Old Kuldo, also a

clearing on the west bank of the Skeena, is now completely

deserted with no visible buildings but we were shown what

appears to be a man-made canal by which water from a mountainous

stream was diverted past the village into the Skeena.

We then flew a short distance east and then swung south

down Shedin Creek to the confluence of the Babine and Skeena

Rivers, which is the site of the ancient village of Kisgegas,

which was once the largest of the Skeena villages. It is a large

Schedule 2.

848

__________________________________________________________________

cleared area with the remains of a number of buildings including

an almost fallen-down church built around 1930 but all the

residents have left here although there are a few cabins on the

other side of the river which I understand are occupied for part

of the year by Josuah McLean. Access to Kisgagas is now possible

by logging road from Kispiox but, except for the fish runs in

the summer, the village has been largely empty since the 1940's.

We then flew a short distance east along the Babine River

which is said to be prime steelhead and salmon territory, and

then west back to the Babine's confluence with the Skeena, whose

course we followed southward past Kispiox (which is situated at

the confluence of the Kispiox and Skeena Rivers) and then we

continued southward along the Skeena to its confluence with the

Bulkley River at Hazelton (K'san) and then further south along

the east bank of the Skeena in the shadow of Rocher de Boule

Mountain (Stickyotum) where we were able to observe the alleged

site of the ancient historical village of Tamlehamid where Mr.

Neil Sterritt now has a farm. When we reached the native village

of Kitsequecla we stopped for fuel. We then proceeded southeast

up the Kitsequecla River behind Rocher de Boule, past the

magnificent Secugla Mountain, and past Kitsequecla Lake until we

re-entered the rich Bulkley Valley on the south side of mighty

Hudson Bay Mountain where the Bulkley River flows north, but we

Schedule 2.

849

__________________________________________________________________

turned south up the valley to Smithers where we terminated a

fascinating voyage of exploration and discovery.

We began our tour of the Wet'suwet'en country on June 7,

1988, using the same format as the previous day except that Mr.

Alfred Joseph was the principal tour guide. We started again at

Smithers and flew south-easterly along Highway 16 past Round

Lake and along the north edge of the Bulkley Valley to Tachak

Mountain where we were unable to land because of low cloud. We

then turned south over Bowman Lake and then further south and

then westerly to Sam Goosely Lake where we stopped and examined

the remains of the cabin built in 1933 by Pat Namox which, even

at this time, was the only habitation left at the village on the

lake. We observed the ``footprints'' described in the evidence

of Albert Mitchell. We then flew south and west, crossing

Francois Lake and then across the rolling hills of the Grassy

Plains area to Ligiliyvz where we turned west and flew past Skin

Lake to the north shore of Ootsa Lake which we followed to the

spillway where we stopped for lunch. We then proceeded westerly

along the north shore of Ootsa Lake to Windy Point where the

lake swings south into the Whitesail Reach but we proceeded west

past the Shelford Hills to the north of Shibola Peak where we

were unable to land. We then swung northeast, past Nadina

Schedule 2.

850

__________________________________________________________________

Mountain, and landed at Pack Lake, where the Holland family had

their cabins, but which have been deserted since the late

1940's, although they still return there for camping and

trapping.

We then flew north-westerly between Owen Lake on the east

and the magnificent Nadina Mountain on the west over the Equity

Silver Mine to the Morice River where we swung south past

McBride Lake and then west to the north end of Morice Lake where

we stopped at the fire lookout station at the very top of Nanika

Mountain. From there one obtains a magnificent view of the north

end of Morice Lake, the verdant Morice Valley to the west and

Telkwa Mountains to the north. All of the territories we visited

and flew over are claimed by the various Houses of the

Wet'suwet'en.

After leaving Nanika Mountain we flew west over to Herd

Dome Mountain and then north past Burnie Lake and over the top

of the incredible Telkwa Range, across the Telkwa River and then

further to the north between McDonell Lake and Hudson Bay

Mountain and then around that magnificent peak swinging east and

south back to Smithers.

Schedule 2.

851

__________________________________________________________________

I am informed we were able to see about two-thirds of the

territory on these three days of travel.

Schedule 2.

852

__________________________________________________________________

SCHEDULE 2.

DESCRIPTION OF PLAINTIFFS, FROM AMENDED

STATEMENT OF CLAIM

FURTHER AMENDED STATEMENT OF CLAIM

1. The Plaintiff, DELGAMUUKW, is the hereditary Chief of the

House of DELGAMUUKW, and is bringing this action on behalf of

himself and the members of the Houses of DELGAMUUKW and HAAXW.

2. The Plaintiff, GISDAY WA. is the hereditary Chief of the

House of GISDAY WA, and is bringing this action on behalf of

himself and the members of the House of GISDAY WA.

3. The Plaintiff, NII KYAP in the hereditary Chief of the House

of NII KYAP, and is bringing this action on behalf of himself

and the members of the House of NII KYAP.

4. The Plaintiff, LELT, is the hereditary Chief of the house of

LELT, and is bringing this action on behalf of himself and the

members of the Houses of LELT and HAAK'W.

5. The Plaintiff, ANTGULILBIX, is the hereditary Chief of the

House of ANTGULILBIX, and is bringing this action on behalf of

herself and the members of the House of ANTGULILBIX.

6. The Plaintiff, TENIMCYET, is the hereditary Chief of the

House of TENIMGYET, and is bringing this action on behalf of

himself and the members of the House of TENIMGYET.

7. The Plaintiff, GOOHLAHT, is the hereditary Chief of the House

of GOOHLAHT, and is bringing this action on behalf of herself

and the members of the Houses of GOOHLAHT and SAMOOH.

8. The Plaintiff, KLIIYEM LAX HAA, is the hereditary Chief of

the House of KLIIYEM LAX HAA, and is bringing this action on

Schedule 2.

853

__________________________________________________________________

behalf of herself and the members of the Houses of KLIIYEM LAX

HAA and WII'MUGULSXW.

9. The Plaintiff, GWIS GYEN, is the hereditary Chief of the

House of GWIS GYEY and is bringing this action on behalf of

himself and the members of the House of GWIS GYEN.

10. The Plaintiff, KWEESE, is the hereditary Chief of the House

of KWEESE, and is bringing this action on behalf of herself and

the members of the House of KWEESE.

11. The Plaintiff, DJOGASLEE, is the hereditary Chief of the

House of DJOGASLEE, and is bringing this action on behalf of

himself and the members of the House of DJOGASLEE.

12. The Plaintiff, GWAGL'LO, is the hereditary Chief of the

House of GWAGL'LO, and is bringing this action on behalf of

himself and the members of the House of GWAGL'LO and DUUBISXW.

13. The Plaintiff, GYOLUGYET, is the hereditary Chief of the

House of GYOLUGYET, and is bringing this action on behalf of

herself and the members of the House of GYOLUGYET.

14. The Plaintiff, GYETM GALDOO, is the hereditary Chief of the

House of GYETM GALDOO, and is bringing this action on behalf of

himself and the members of the houses of GYETM GALDOO and

WII'GOOB'L.

15. The Plaintiff, HAAK ASXW, is the hereditary Chief of the

House of HAAK ASXW, and is bringing this action on behalf of

himself and the members of the House of HAAK ASWX.

16. The Plaintiff, GEEL, is the hereditary Chief of the House of

GEEL, and is bringing this action on behalf of himself and the

members of the House of GEEL.

17. The Plaintiff, HAALUS, is the hereditary Chief of the House

of HAALUS, and is bringing this action on behalf of himself and

the members of the House of HAALUS.

18. The Plaintiff, WII HLENGWAX, is the hereditary Chief of the

House of WII HLENGWAX, and is bringing this action on behalf of

himself and the members of the House of WII HLENGWAX.

Schedule 2.

854

__________________________________________________________________

19. The Plaintiff, LUUTKUDZIIWUS, is the hereditary Chief of the

House of LUUTKUDZIIWUS, and is bringing this action on behalf of

himself and the members of the House of LUUTKUDZIIWUS.

20. The Plaintiff, MA'UUS, is the hereditary Chief of the House

of MA'UUS, and is bringing this action on behalf of himself and

the members of the House of MA'UUS.

21. The Plaintiff, MILUU LAK, is the hereditary Chief of the

House of MILUU LAK, and is bringing this action on behalf of

herself and the members of the Houses of MILUU LAK and HAIWAS.

22. The Plaintiff, NIKA TEEN, is the hereditary Chief of the

House of NIKA TEEN, and is bringing this action on behalf of

himself and the members of the House of NIKA TEEN.

23. The Plaintiff, SKIIK'M LAX HA, is the hereditary Chief of

the House of SKIIK'M LAX HA, and is bringing this action on

behalf of himself and the members of the House of SKIIK'M LAX

HA.

24. The Plaintiff, WII MINOSIK, is the hereditary Chief of the

House of WII MINOSIK, and is bringing this action on behalf of

himself and the members of the House of WII MINOSIK.

25. The Plaintiff, GWININ NITXW is the hereditary Chief of the

House of GWININ NITXW, and is bringing this action on behalf of

himself and the members of the House of GWININ NITXW.

26. The Plaintiff, GWOIMT, is the hereditary Chief of the House

of GWOIMT, and is bringing this action on behalf of herself and

the members of the Houses of GWOIMT and TSABUX.

27. The Plaintiff, LUUS, is the hereditary Chief of the House of

LUUS, and is bringing this action on behalf of himself and the

members of the House of LUUS.

28. The Plaintiff, NIIST, is the hereditary Chief of the House

of NIIST, and is bringing this action on behalf of himself and

the members of the Houses of NIIST and BASKYELAXHA.

29. The Plaintiff, SPOOKW, is the hereditary Chief of the House

of SPOOKW, and is bringing this action on behalf of himself and

the members of the Houses of SPOOKW and YAGOSIP.

Schedule 2.

855

__________________________________________________________________

30. The Plaintiff, WII GAAK, is the hereditary Chief of the

House of WII GAAK, and is bringing this action on behalf of

himself and the members of the House of WII GAAK.

31. The Plaintiff, DAWAMUXW, is the hereditary Chief of the

House of DAWAMUXW, and is bringing this action on behalf of

himself and the members of the House of DAWAMUXW.

32. The Plaintiff, GITLUDAHL, is the hereditary Chief of the

House of GITUDAHL, and is bringing this action on behalf of

himself and the members of the Houses of GITLUDAHL and WIIGYET.

33. The Plaintiff, GUXSAN, is the hereditary Chief of the House

of GUXSAN, and is bringing this action on behalf of himself and

the members of the House of GUXSAN.

34. The Plaintiff, HANAMUXW, is the hereditary Chief of the

House of HANAMUXW, and is bringing this action on behalf of

herself and the members of the House of HANAMUXW.

35. The Plaintiff, YAL, is the hereditary Chief of the House of

YAL, and is bringing this action on behalf of himself and the

members of the House of YAL.

36. The Plaintiff, GWIIYEEHL, is the hereditary Chief of the

House of GWIIYEEHL, and is bringing this action on behalf of

himself and the members of the House of GWIIYEEHL.

37. The Plaintiff, SAKXUM HIGOOKX, is the hereditary Chief of

the House of SAKXUM HIGOOKX, and is bringing this action on

behalf of himself and the members of the House of SAKXUM

HIGOOKX.

38. The Plaintiff, MA DEEK, is the hereditary Chief of the House

of MA DEEK, and is bringing this action on behalf of himself and

the members of the House of MA DEEK.

39. The Plaintiff, WOOS, is the hereditary Chief of the House of

WOOS, and is bringing this action on behalf of himself and the

members of the House of WOOS.

40. The Plaintiff, KNEDEBEAS, is the hereditary Chief of the

House of KNEDEBEAS, and is bringing this action on behalf of

herself and the members of the House of KNEDEBEAS.

Schedule 2.

856

__________________________________________________________________

41. The Plaintiff, SMOGELGEM, is the hereditary Chief of the

House of SMOGELGEM, and is bringing this action on behalf of

himself and the members of the House of SMOGELGEM.

42. The Plaintiff, KLO UM KHUN, is the hereditary Chief of the

House of KLO UM KHUN, and is bringing this action on behalf of

himself and the members of the House of KLO UM KHUN.

43. The Plaintiff, HAG WIL NEGH, is the hereditary Chief of the

House of HAG WIL NEGH, and is bringing this action on behalf of

himself and the members of the House of HAG WIL NEGH.

44. The Plaintiff, WAH TAH KEG'HT, is the hereditary Chief of

the House of WAH TAH KEG'HT, and is bringing this action on

behalf of himself and the members of the House of WAH TAH

KEG'HT.

45. The Plaintiff, WAH TAH KWETS, is the hereditary Chief of the

House of WAH TAH KWETS, and is bringing this action on behalf of

himself and the members of the House of WAH TAH KWETS.

46. The Plaintiff, WOOSIMLAXHA, is the hereditary Chief of the

House of WOOSIMLAXHA, and is bringing this action on behalf of

himself and the members of the House of GUTGINUXW.

47. The Plaintiff, XSGOGIMLAXHA, is the hereditary Chief of the

House of XSGOGIMLAXHA, and is bringing this action on behalf of

himself and the members of the House of XSGOGIMLAXHA.

48. The Plaintiff, WIIGYET, is the hereditary Chief of the House

of WIIGYET, and is bringing this action on behalf of himself and

the members of the House of WIIGYET.

49. (A) The Plaintiff, WII ELAAST, is the hereditary Chief of

the House of WII ELAAST, and is bringing this action on behalf

of himself and the members of the Houses of WII ELAAST and

AMAGYET.

49. (B) The Plaintiff, GAXSBGABAXS, is the hereditary Chief of

the House of GAXSBGABAXS, and is bringing this action on behalf

of herself and the members of the House of GAXSBGABAXS.

49. (C) The Plaintiff, WIGETIMSCHOL, is the hereditary Chief of

the House of NAMOX and is bringing this action on behalf of

himself and the members of the House of NAMOX.

Schedule 2.

857

__________________________________________________________________

SCHEDULE 3.

COPY OF ROYAL PROCLAMATION, 1763

1763, October 7

[Establishing New Governments in America]

BY THE KING

A PROCLAMATION

George R.

PART I A Whereas We have taken into Our Royal Consideration the

PREAMBLE extensive and valuable Acquisitions in

America, secured to Our Crown by the late Definitive

Treaty of Peace,

B

concluded at Paris the Tenth Day of February last; and

being desirous, that all Our loving Subjects, as well

of Our Kingdoms as of Our Colonies in America, may

avail themselves, with all convenient Speed, of the

great Benefits and Advantages which must accrue

therefrom to

1)

their Commerce, Manufactures, and Navigation; We have

thought fit, with the Advice of Our Privy Council, to

issue this Our Royal Proclamation, hereby to publish

and

C

declare to all Our loving Subjects, that We have, with

the Advice of Our said Privy Council, granted Our

Letters Patent under Our Great Seal of Great Britain,

to erect within the Countries and Islands ceded and

confirmed to Us by the said Treaty, Four distinct and

Schedule 3.

858

__________________________________________________________________

separate Governments, stiled and called by the Names

of Quebec, East Florida, West Florida, and Grenada,

and limited and bounded as follows; viz.

2)

D

First. The Government of Quebec, bounded on the

Labrador Coast by the River St. John, and from thence

by a Line drawn from the Head of that River through

the Lake St. John to the South End of the Lake nigh

Pissin, from whence the said Line crossing the River

St. Lawrence and the Lake Champlain in Forty five

Degrees of North Latitude, passes along the High Lands

which divide the Rivers that empty themselves into the

said River St. Lawrence, from those which fall into

the Sea; and also along the North Coast of the Baye

des Chaleurs, and the Coast of the Gulph of St.

Lawrence to Cape Rosieres, and from thence crossing

the Mouth of the River St. Lawrence by the West End of

the Island of Anticosti, terminates at the aforesaid

River of St. John.

3)

E

Secondly. The Government of East Florida, bounded to

the Westward by the Gulph of Mexico, and the

Apalachicola River; to the Northward, by a Line drawn

from

that

Part

of

the

said

River

where

the

Chatahouchee and Flint Rivers meet, to the Source of

St. Mary's River, and by the Course of the said River

to the Atlantick Ocean; and to the Eastward and

Southward, by the Atlantick Ocean, and the Gulph of

Florida, including all Islands within Six Leagues of

the Sea Coast.

4)

F

Thirdly. The Government of West Florida, bounded to

the Southward by the Gulph of Mexico, including all

Islands to Lake Pentchartrain; to the Westward, by the

said

Lake,

the

Lake

Mauripas,

and

the

River

Mississippi; to the Northward, by a Line drawn due

East from that Part of the River Mississippi which

lies in Thirty one Degrees North Latitude, to the

River Apalachicola or Chatahouchee; and to the

Eastward by the said River.

5)

G

Fourthly. The Government of Grenada, comprehending the

Schedule 3.

859

__________________________________________________________________

Island of that Name, together with the Grenadines, and

the Islands of Dominico, St. Vincents, and Tobago.

6)

H

And, to the End that the open and free Fishery of Our

Subjects may be extended to and carried on upon the

Coast of Labrador and the adjacent Islands, We have

thought fit, with the Advice of Our said Privy

Council, to put all that Coast, from the River St.

John's to Hudson's Streights, together with the

Islands of Anticosti and Madelaine, and all other

smaller Islands lying upon the said Coast, under the

Care and Inspection of Our Governor of Newfoundland.

7)

8)

I

J

We have also, with the Advice of Our Privy Council,

thought fit to annex the Islands of St. John's, and

Cape Breton or Isle Royale, with the lesser Islands

adjacent thereto, to our Government of Nova Scotia.

We have also, with the Advice of Our Privy Council

aforesaid, annexed to Our Province of Georgia all the

Lands lying between the Rivers Attamaha and St.

Mary's.

PART II K

PREAMBLE And whereas it will greatly contribute to the speedy

settling Our said new Governments, that Our loving

Subjects should be informed of Our Paternal Care for

the Security of the Liberties and Properties of those

who are

1)

L

and shall become Inhabitants thereof; We have thought

fit to publish and declare, by this Our Proclamation,

that We have, in the Letters Patent under Our Great

Seal of Great Britain, by which the said Governments

are constituted, given express Power and Direction to

Our Governors of Our said Colonies respectively, that

so soon as the State and Circumstances of the said

Colonies will admit thereof, they shall, with the

Advice and Consent of the Members of Our Council,

summon and call General Assemblies within the said

Governments respectively, in such Manner and Form as

is used and directed in those Colonies and Provinces

in America, which are under Our

Schedule 3.

860

__________________________________________________________________

M

immediate Government; and We have also given Power to

the said Governors, with the Consent of Our said

Councils, and the Representatives of the People, so to

be summoned as aforesaid, to make, constitute, and

ordain Laws, Statutes, and Ordinances for the Publick

Peace, Welfare, and Good Government of Our said

Colonies, and of the People and Inhabitants thereof,

as near as may be agreeable to the Laws of England,

and under such Regulations and Restrictions as are

used in other Colonies: And in the mean Time and until

such Assemblies can be called as aforesaid, all

Persons inhabiting in, or resorting to Our said

Colonies, may confide in Our Royal Protection for the

Enjoyment of the Benefit of the

N

Laws of Our Realm of England; for which Purpose, We

have given Power under Our Great Seal to the Governors

of Our said Colonies respectively, to erect and

constitute, with the Advice of Our said Councils

respectively,

Courts

of

Judicature

and

Publick

Justice, within Our said Colonies, for the hearing and

determining all Causes, as well Criminal as Civil,

according to Law and Equity, and as

O

near as may be agreeable to the Laws of England, with

Liberty to all Persons who may think themselves

aggrieved by the Sentences of such Courts, in all

Civil Cases, to appeal, under the usual Limitations

and Restrictions, to Us in Our Privy Council.

2)

P

We have also thought fit, with the Advice of Our Privy

Council as aforesaid, to give unto the Governors and

Councils of Our said Three New Colonies upon the

Continent, full Power and Authority to settle and

agree with the Inhabitants of Our said New Colonies,

or with any other Persons who shall resort thereto,

for such Lands, Tenements, and Hereditaments, as are

now, or

Q

hereafter shall be in Our Power to dispose of, and

them to grant to any such Person or Persons, upon such

Schedule 3.

861

__________________________________________________________________

Terms, and under such moderate Quit-Rents, Services,

and Acknowledgments as have been appointed and settled

in Our other colonies, and under such other Conditions

as shall appear to Us to be necessary and expedient

for the Advantage of the Grantees, and the Improvement

and Settlement of our said Colonies.

PART III R PREAMBLE

And whereas We are desirous, upon all Occasions,

to testify Our Royal Sense and Approbation of the

Conduct and Bravery of the Officers and Soldiers of

Our Armies,

1)

and to reward the same, We do hereby command and

impower our Governors of Our said Three New

Colonies, and all other Our Governors of Our

several Provinces on the continent of North

America, to grant, without Fee or Reward, to such

Reduced Officers as have served in North America

during the late War, and to such Private Soldiers

as have been or shall be disbanded in America,

and are actually residing there, and shall

personally apply for the same, the following

Quantities of Lands, subject at the Expiration of

Ten Years to the same Quit-Rents as other Lands

are subject to in the Province within which they

are granted, as also subject to the same

Conditions of Cultivation and Improvement; viz.

2)

To every Person having the Rank of a Field

Officer, Five thousand Acres. -- To every

Captain, Three thousand Acres. -- To every

Subaltern or Staff Officer, Two thousand

Acres. -- To every Non-Commission Officer,

Two hundred Acres. -- To every Private Man,

Fifty Acres.

We

do

likewise

authorize

and

require

the

Governors and Commanders in Chief of all Our said

Colonies upon the Continent of North America, to grant

the like Quantities of Land, and upon the same

Conditions, to such Reduced Officers of Our Navy, of

like Rank, as served on Board Our Ships of War in

Schedule 3.

862

__________________________________________________________________

North America at the Times of the Reduction of

Louisbourg and Quebec in the late War, and who shall

personally apply to Our respective Governors for such

Grants.

PART IV S

PREAMBLE And whereas it is just and reasonable, and essential

to Our Interest and the Security of Our Colonies, that

the several Nations or Tribes of Indians, with whom We

are connected, and who live under Our Protection,

should not be molested or disturbed in the Possession

of such Parts of Our Dominions and Territories as, not

having been ceded to, or purchased by Us, are reserved

to them,

1)

T

or any of them, as their Hunting Grounds; We do

therefore, with the Advice of Our Privy Council,

declare it to be Our Royal Will and Pleasure, that no

Governor or Commander in Chief in any of Our Colonies

of Quebec, East Florida, or West Florida, do presume,

upon any Pretence whatever, to grant Warrants of

Survey, or pass any Patents for Lands beyond the

Bounds of their respective Governments, as described

in their

U

Commissions; as also, that no Governor or Commander in

Chief in any of Our other Colonies or Plantations in

America, do presume, for the present, and until Our

further Pleasure be known, to grant Warrants of

Survey, or pass Patents for any Lands beyond the Heads

or Sources of any of the Rivers which fall into the

Atlantick Ocean from the West and North-West, or upon

any Lands whatever, which, not having been ceded to,

or purchased by Us as aforesaid, are reserved to the

said Indians, or any of them.

2)

V

And We do further declare it to be Our Royal Will and

Pleasure, for the present as aforesaid, to reserve

under Our Sovereignty, Protection, and Dominion, for

the Use of the said Indians, all the Lands and

Territories not included within the Limits of Our said

Three New Governments, or within the Limits of the

Schedule 3.

863

__________________________________________________________________

Territory granted to the Hudson's Bay Company, as also

all the Lands and Territories lying to the Westward of

the Sources of the Rivers which fall into the Sea from

the

W

X

West and North West, as aforesaid; and We do hereby

strictly forbid, on Pain of Our Displeasure, all Our

loving

Subjects

from

making

any

Purchases

or

Settlements whatever, or taking Possession of any of

the Lands above reserved, without Our especial Leave

and Licence for that Purpose first obtained.

3)

And We do further strictly enjoin and require all

Persons

whatever,

who

have

either

wilfully

or

inadvertently seated themselves upon any Lands within

the Countries above described, or upon any other

Lands, which, not having been ceded to, or purchased

by Us, are still reserved to the said Indians as

aforesaid, forthwith to remove themselves from such

Settlements.

4)a) Y

And whereas great Frauds and Abuses have been

committed in the purchasing Lands of the Indians, to

the great Prejudice of Our Interests, and to the great

Dissatisfaction

of

the

said

Indians;

in

order

therefore to prevent such Irregularities for the

future, and to the End that the Indians may be

convinced of Our Justice, and determined Resolution to

remove all reasonable Cause of Discontent, We do, with

the Advice of Our Privy Council, strictly enjoin and

require, that no private Person do presume to make any

Purchase from the said Indians of any Lands reserved

to the said Indians, within those Parts of Our

Colonies where We have thought proper to allow

Settlement; but that if, at any Time, any of the said

Indians should be inclined to dispose of the said

Lands, the same shall be purchased only for Us, in Our

Name, at some publick Meeting or Assembly of the said

Indians to be held for that Purpose by the Governor or

Commander in Chief of Our Colonies respectively,

within which they shall lie: and in case they shall

Schedule 3.

864

__________________________________________________________________

lie within the Limits of any Proprietary Government,

they shall be purchased only for the Use and in the

Name of such Proprietaries, conformable to such

Directions and Instructions as We or

4)b)

they shall think proper to give for that Purpose: And

We do, by the Advice of Our Privy Council, declare and

enjoin, that the Trade with the said Indians shall be

free and open to all our Subjects whatever, provided

that every Person, who may incline to trade with the

said Indians, do take out a Licence for carrying on

such Trade from the Governor or Commander in Chief of

any of Our Colonies respectively, where such Person

shall reside; and also give Security to observe such

Regulations as We shall at any Time think fit, by

Ourselves or by Our Commissaries to be appointed for

this Purpose, to direct

Z

and appoint for the Benefit of the said Trade; And We

do hereby authorize, enjoin, and require the Governors

and

Commanders

in

Chief

of

all

Our

Colonies

respectively, as well Those under Our immediate

Government as those under the Government and Direction

of Proprietaries, to grant such Licences without Fee

or Reward, taking especial Care to insert therein a

Condition, that such Licence shall be void, and the

Security forfeited, in Case the Person, to whom the

same is granted, shall refuse or neglect to observe

such Regulations as We shall think proper to prescribe

as aforesaid.

5)

AA

And We do further expressly enjoin and require all

Officers whatever, as well Military as those employed

in the Management and Direction of Indian Affairs

within the Territories reserved as aforesaid for the

Use of the said Indians, to seize and apprehend all

Persons whatever, who, standing charged with Treasons,

Misprisions of Treason, Murders, or other Felonies or

Misdemeanors, shall fly from Justice, and take Refuge

in the said Territory, and to send them under a proper

Guard to the Colony where the Crime was committed of

which they stand accused, in order to take their Tryal

Schedule 3.

865

__________________________________________________________________

for the same. Given at Our court at St. James's, the

Seventh Day of October, One thousand seven hundred and

sixty three, in the Third Year of Our Reign.

GOD SAVE THE KING

Schedule 3.

866

__________________________________________________________________

SCHEDULE 4.

EXTRACT OF SUBMISSION OF PROVINCE ON ORAL

HISTORIES

MEN OF MEDEEK, PART I. (pages 3-132) -- Ex. 898

(by Will Robinson (Medeek), as told by Walter Wright)

[narratives listed here refer to moose and Legaic

and other historic indicators]

#12. Success and Hardship

37: ``. . . the nephew of Neas Hiwas returned with joyous news

of a land of plenty . . . he told of the beaver meadows, the

moose and caribou . . .''

#13-#18, all related to #12, as these all appear to concern the

same body of people migrating.

#19-#22 -- these stories are all related, and tie into #17. In

#19, the men of Medeek dream of revenge for the treatment of the

Schedule 5.

867

__________________________________________________________________

body of the Bear chief by Steehow (in #17, p. 51) Neas Hiwas

decides that it is time for retribution, and tells his people to

prepare for battle -- Klew-na will be destroyed. In #20,

preparation for battle. In #21, Klew-na is attacked, and many

people are killed. In #22, years of prosperity followed, but the

decision to go on a great raid is made.

#22-#37 seem all to relate to the same individuals and time

periods. In #23, Kitlope is successfully attacked, but a nephew

of Neas Hiwas is killed. In #24, more booty is taken, girls are

ransomed, and then the warriors head homeward. In #25, Neas

Hiwas and the other Medeek men are insulted, but they decide not

to attack. In #26, some Medeek men decide to stay and live in

Kitkatla. In #27, two more men decide to stay at the mouth of

Gitnidox. #28 finds the men of Medeek home at Kitselas, and

making the decision to vindicate an old feud. (relates back to

#14) In #29, there is preparation for a feasting month. In #30,

Neas Hiwas (Medeek chief -- Bear) goes to the Kitwanga Eagles

chief Coor, and invites him to a feast. In #31, Coor's people

come for a feast, it is a trap, and most chiefs are killed. Only

one escapes. In #32, the new chief Coor comes to Neas Hiwas

three years later, desiring a peace making, asks for Neas Hiwas'

daughter in marriage, throws maiden in fire in retaliation for

Schedule 5.

868

__________________________________________________________________

the death of his uncles. In #33, Neas Hiwas comes to visit his

daughter, and ends up being murdered by Coor's men as are most,

but not all of his men. ``two years later'' (p. 101) #34, the

new Neas Hiwas instructs his people to prepare for retaliation.

In #35, Neas Hiwas' people attack Coor's village. In #36, more

about the attack, and then there is a peace agreement between

Coor and Neas Hiwas. #37 describes a feasts of triumph.

MEN OF MEDEEK, PART II. (pages 134-192) -- Ex. 898

(by Will Robinson (Medeek), as told by Walter Wright)

Chapter 1. The Feud (134-146)

(How a feud started between the Kitselas Eagles and the Kis

Po Lockts Eagles while they were eulachon fishing at the mouth

of the Nass River and how that feud continued as the latter

pressed their claims to rights to trade up-river from Kitselas.

References to Legaic throughout, who was uncle to the

Gispaxloats protagonist, suggest that events described in the

chapter took place in protohistoric or historic times.)

134: the Tsimshian prince (who became Whiick Haalkt) was

Legaic's nephew.

Schedule 5.

869

__________________________________________________________________

137: ``[T]he Tsimshian chief came to pay for the body of the

Kitselas chief whom he had killed'' . . . with buckskins.

138: ``Whiick Haalkt proceed to pay for the body of Neas

Haloopskt. He paid with eight men of buckskins and with one

little aiatesk [?] that was equal to two men of buckskins. Each

buckskin was worth $70.00 so the Tsimsean chief paid $14,000 for

the body.''

139: ``It was the custom for the Kitselas people to trade with

the people of the interior three times a year. Neas-D-Hok and

those who held his power were the first canoe to go up-river,

and after him came the other people of Kitselas. They traded in

the spring for furs, in the summer for food, and in the fall

again for furs. It was also the custom that after the Kitselas

people had finished their trading to allow Legaic and the other

Eagles to go up-river to trade.'' . . . paying for the body

allowed the nephew of Legaic to continue (after a lapse of three

years) going up river past Kitselas ``to the up-river country of

Kitetsan.''

Chapter 2. The first war between the Kitselas and the

Schedule 5.

870

__________________________________________________________________

Tsimshians

(pages 147-158)

This narrative starts (p. 147) with: ``At the time of the

feud Legaic was the head of ten chiefs who ruled over the

Tsimpseans.'' Legaic is the chief who mounts the attack against

the Kitselas. On p. 153 it is said that ``many thousands of

Tsimpseans opposed the Kitselas warriors.'' On p. 155 Legaic's

men described as ``the people of Dudoward, Kinatoix,

Gitwilgoitks, Kitlan and Gitlakarkts''. Legaic's people are

defeated after a long battle, and forced to retreat to the

coast. [see M. Robinson, Garfield and Rosman/Rubel re the

protohistoric/historic emergence of the Tsimpshian

``superchiefs'']

147-: preparation of a large fortress at Kitselas ``Medegam

Doktz''

150: buckskin tents

Chapter 3. The second war against the Tsimpseans (158-166)

Two years after the first war, the elders at Kitselas

decided to line up the support of ``people from the other towns

Schedule 5.

871

__________________________________________________________________

on the river'' by holding a feast. They instructed chief Neas-D-

Hok (p. 158): ``Make an agreement with them that they will help

us if the people of the coast make war on us again.'' The people

invited were the people of Kitsumgallum, Kitseukla, Kitwanga,

Kitwancool, Git-lac-Damix, Hagwilget and Kispiox, and, (p. 159)

``[i]n this manner the people of the river became united, a

federation of villages banded together to protect one another.''

Legaic hears of this, and decides to mount an even bigger attack

than he had the previous time, this time calling the people from

the south: Kitimat, Kitlop, Bella Bella, Bella Coola, Noickt

Stor and Temnkt Whilk across Queen Charlotte Sound and on the

west coast of Vancouver Island. Legaic's messenger explained

``that Legaic asked for their help and that he had sent gifts of

buckskins and other goods to pay for their assistance . . .''

(p. 159-60) Legaic eventually gathered his many attackers

together. ``How many warriors gathered is not known but they are

in the thousands. Later when they came up the river the waters

of the Skeena swarmed with canoes from Kwinitza to eight miles

upstream.'' (p. 161) Legaic's men are unable to find the people

of Kitselas, they burn down the village, but then retreat. Peace

lasted for some time (p. 166): ``The little girl who had seen

the many warriors became an old woman and still there was

peace.''

Schedule 5.

872

__________________________________________________________________

161: a totem pole breaks at Kitselas while the defenses are

being prepared, and ``The people remembered another time that a

totem pole had broken and a great sickness had come to Kitselas,

killing many people.'' [reference to an epidemic of an

introduced disease?]

Chapter 4. The Slaying of Neas Kitlop (pages 167-171)

167: a feast held with a plentiful supply of food and buckskins

169: large quantities of buckskins used for ransom

169: [EXCHANGE] ``In the early days a high-ranking Kitselas

woman . . . adopted a boy of Legaic's people.''

171: the ranking Kitselas chief was killed by Legaic during an

attack, but the Kitselas people were not strong enough to

retaliate, and the peace continued.

Chapter 5. The war against the Haidas (172-183)

Leaving the Nass after a season of eulachon fishing, Legaic

Schedule 5.

873

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was attacked by some Haida people, ``led by Chief Weijhuhuns and

his nephew Nass Stowe.'' (p. 172) The women and children were

captured for slaves, but the men escaped back to the Nass River,

where they warned the Kitselas people of the attack. ``The

following winter Legaic sent messengers to Neas-D-Hok (of

Kitselas) ordering him to give assistance in a war against the

Haidas in September when the fishing season had ended.'' (page

172) ``When September came Neas-D-Hok gathered a fleet of twenty

canoes and four hundred men from his side of the canyon. He

gathered twenty canoes from the other side of the canyon and

another twenty from Legaic's up-river people.'' Legaic and his

allies take their canoes across to the Charlottes. ``[T]he

upper-river men used arrows of saskatoon wood, tipped with bone

and barbed with two or three barbs so they could not be

withdrawn. But when the Haidas heard that shankes were sued as

arrows they were terrified, all eighteen tribes, from one end of

the islands to the other.'' (p. 176) [Legaic chased the Haida

back in the last war, 1831] On page 179, the senior Haida chief

``sent word to the people of the islands of lower Alaska and

called on them to come and help him fight against the invaders.

He summoned, in all, the people of eighteen towns.''

179 -- armour of highly decorated, light buckskin.

Schedule 5.

874

__________________________________________________________________

181 -- the Tsimshian capture many of the young Haida men ``to be

used as slaves,'' and also take the old, important chief

prisoner.

183 -- Legaic demands an aiatesk in payment, but the Haida chief

dies.

Chapter 6. The final conflict (pages 184-192)

184: ``A new generation of people had grown up since the war

with the Haidas . . . Then came the day when guns came into the

land, old flintlocks from the east . . . One year a trading

schooler came to Kitimat from the new colony that is now

Victoria'' . . . whisky and barrels of gunpowder. the chief Kit

Houn purchases and hides barrels of gunpowder, then urges his

people to get guns and gunpowder from wherever they can --

mention of Hagwilget and Babine. This chief's successor dies of

an ailment similar to smallpox which carried off many of the

Kitselas people. (1862/63 epidemic?)

185: the chief Kit Houn after this one was the informant's

father's brother

Schedule 5.

875

__________________________________________________________________

185-6: ``In those days it was still the custom for my father's

house to trade with the people of Hagwilget and the upper river.

After my father's house had returned the people of Legaic would

ask permission to go up-river so that they too might trade. If

their request was viewed with favour they were allowed to pass,

but if there was reason to refuse they had to return to the

coast.''

188: RE MARRIAGE AS A BASIS FOR ESTABLISHING A TRADING

PARTNERSHIP. When the Tsimpseans returned to their town Legaic

called a great council. He was eager to fight against the

Kitselas and the council agreed to waging a war the following

year. Now many of the Kitselas men were married to women of the

Tsimpseans.

TEMLARH'AM: THE LAND OF PLENTY ON THE NORTH PACIFIC COAST

by Marius Barbeau

[narratives listed here contain descriptions of historic

indicators such as copper, guns, Legaic, Haimas, and so on.]

Ex. 1047-14

#14. The Ska'waw myth (366-67) p. 367 a two story house (see

Schedule 5.

876

__________________________________________________________________

also #15)

Ex. 1047-15

#15. The young daughter Ska'waw (368-374) p. 373 shears, large

house

Ex. 1047-20

#20. A history of the Gitlaen tribe (393-396) p. 394 ``The woman

and her husband had a daughter . . . very fair, with light

hair.''

Ex. 1047-21

#21. The origin of the Gitlaen (399-412) [a similar narrative to

#13, Beynon's comment about a gesture is that it could be a

Catholic symbol --check]

Ex. 1047-51

#51. A feast sponsored by Harhpegwawtk (546-553) Beynon in 1954:

``some fifteeen years ago, I . . . was invited to accompany a

party of Gitrhahla people to a feast . . .''

Ex. 1047-61

#61. The ginarhangik raid the Dedaw (Nootka) (595-597) p. 596

Schedule 5.

877

__________________________________________________________________

``It was just at the time when guns first came into use.''

recorded in 1939.

Ex. 1047-62

#62. the Tsimsyan way of fighting (598-600) p. 598 Hai'mas

Ex. 1047-63

#63. The ginarhangik at war on the Sitka (601-605) p. 601

Hai'mas, moose hides p. 603 ``This was at the time when guns

were first introduced in the country.'' p. 604 confederacy for

war . . . p. 605 guns p. 605 Tsimshian mercenaries

Ex. 1047-65

#65. Gyaemk's trading experiences (609-612) p. 609 Informant

(aged 73 in 1952) said: ``Gyaemk told me this narrative

Ex. 1047-66

#66. The Tsimsyan attack the Qutaerh (Aleutians)(613-615) p. 613

informant (aged 72 in 1952) ``said that his grandfather had seen

the following events.'' mention of HBC/Nass post/Kennedy

Ex. 1047-67

#67. The Qutaerh chased away (616-617) p. 616 ``The Hudson's Bay

Company had just left the Nass River . . .''

Schedule 5.

878

__________________________________________________________________

Ex. 1053-24

#68. A standing up or cleansing feast (618) event occurred in

1914, recorded by Beynon

Ex. 1053-25

#69. ``Weesaiks now invites you'' (619-620) Beynon witnessed

this, and recorded it in 1947-48

Ex. 1053-26

#70. The purchase of the Nahuhulk (621-647) story about

acquisition of copper shield, the Hahulk copper (p. 641) p. 625.

moose hides and caribou hides

Ex. 1053-27

#71. The origin of the Ginarhangik copper shield (648-656) p.

651 much of this like #69 ``three scores of copper shields''

Ex. 1053-28

#72. The great copper shield of the Ginarhangik (657-660)

Ex. 1053-29

Schedule 5.

879

__________________________________________________________________

#73. How the Ginarhangik copper shield was acquired (661-662)

Ex. 1053-30

#74. The copper shield of the Ginarhangik (663-665) p. 663 moose

hides, and valuable furs used for cloaks

Ex. 1053-31

#75. The Ginarhangik go down in rank (666-669) copper shields

Ex. 1047-77

#77. The female head-chief of the Giludzqeu tribe (674-676) p.

674 [Victoria Young] ``had received the ties of the new mission

church established by Wm. Duncan

Ex. 1047-78

#78. The controversy between "Neeshlkumik and Rapligidaehl (677-

682) p. 677 more about Victoria Young

Ex. 1047-79

#79. The resentment of the Giludzaeu chief against the Git'andaw

more about Victoria Young

Schedule 5.

880

__________________________________________________________________

Ex. 1047-80

#80. The murder of two chiefs (685-686) trading trip to Victoria

Ex. 1047-94

#94. The murder of Maws (749-756) p. 749 gun

Ex. 1047-95

#95. The tradition of Kwiyaihl, of Kispayaks (757-771) p. 760

smallpox, cholera

Ex. 1047-110

#110. Weeyawn of Gitrhadeen, on the Nass (802- another location

for Temlarh'am p. 803 copper shield

RAVEN-CLAN OUTLAWS ON THE NORTH PACIFIC COAST, by Marius Barbeau

[narratives selected for their historic features or other

unusual elements -- such cedar bark sails . . . also references

to people such as Hai'mas, Legaic, Weesaiks . . . some passages

concerning territories]

SECOND PART: TRUE NARRATIVES (ADAORH)

Ex. 1051-9

#6. Hai'mas and his Wudzen-aleq band (84-88) [Charles Barton,

Schedule 5.

881

__________________________________________________________________

Kincolith/Interp. Charles Barton, 1927] reference to red hair,

p. 84. ``These boys were red-headed (reddish hair). So the old

Alimlarhae gave an order to bring all the other boys in other

tribes, whose hair was like the Hai'mas boys, that is only

Kanhada (Raven-Frog) children.'' [SR -does the red hair indicate

contact with people other than Indians?]

p. 84 name for child ``bark case of a copper''

p. 88 ``Note: The informant learned this narrative from one of

the leading Wudzen'aleq named Qaugyaehl, who was a much older

man and who died at Kincolith. He never left the Nass, and was

one of their leaders. He (Barton) also heard this story from

Alimlarhae of the Ginarhangik many times. [P] The career of

Hai'mas cannot have happened very long ago, although I (Barton)

have not seen these very warriors, who were in the fight. But

the people who told me about him had seen him. It is not a very

old story. Hai'mas and his "aleque remained in power for many

years before they got broken up. It was a reckless act of him to

try and kill those Tsimsyan chiefs. It was what broke him up in

the end. Without it, they would not all have ganged up together

against him. He could have stood up against any one tribe. But

that time there were too many tribes.''

Schedule 5.

882

__________________________________________________________________

Ex. 1051-11

#8. Hai'mas and his Kanhada Warriors (95-104) [Mr. and Mrs.

Peter Ryan, both 70+, Metlakatla/Interpre. Beynon, 1952]

reference to a woman being very fair, with reddish hair, p. 96 -

- one of Hai'mas' Ganhade sisters (mink anus/flatulence/she is

burnt on a pyre) -- the man closest to Hai'mas, Mawkskembaen

(Gitsees)

Ex. 1048-17

#17. The razing of Ksemateen (135-136) [Herbert Wallace,

Gitsees/Interp. Beynon 1926] Hai'mas

Ex. 1048-18

#18. Retaliation of the Tlingit (137-139) [Herbert Wallace,

Gitsees/Interp. Beynon, 1926] Hai'mas

Ex. 1048-22

#22. "Ayairansk, the great Kanhada warrior (157-159) two nephews

of Legaic, moose skins

Ex. 1048-23

#23. "Ayairansk of Gitrhahla outwitted (160-161) parallel to #22

Schedule 5.

883

__________________________________________________________________

Ex. 1048-24

#24. The pearled bow of "Ayairansk, mouldy ear (163-165) coppers

Ex. 1048-25

#25. Origin of the name of Sabaen (167-169) [George McCauley,

gitrhahla/Interp. Beynon, 1916] ship with sails, ``soap'',

biscuits, molasses, rice, etc.

Ex. 1048-26

#26. Gidaranits and Tsimsyan raids (170-3) p. 172, Hai'mas

Ex. 1048-27

#27. Tlingit and Tsimsyan warfare (174-7) one of the myths cited

above refers to this style of warfare

Ex. 1053-17

#29. A Tlingit Humiliation Pole (180-183) [James Peel, Kaigani,

age 71/Recorder Beyon, 1952]

p. 183 ``The informant . . . was told this story by his

grandfather, who had witnessed the incident.'' ``There had been

several raids on the Haida by the Tlingit people from Tongas . .

.'' the narrative is about a Haida woman who became pregnant

while she was a captive of the Tlingit . . . how she was

Schedule 5.

884

__________________________________________________________________

redeemed but how it took some time to redeem her son.

Ex. 1048-34

#34. The Tsimsyan at Metlakatla (196-198) informant William

Beynon. notes about the history of Metlakatla written in 1952

Ex. 1048-36

#36. The Gitwilksebae tribe of the Tsimsyan (204-7) p. 205

copper shield

Ex. 1048-37

#37. A Gitsalas war upon the Haida (208-210) [Charles Abbott

(Port Simpson)/Beynon 1927]

p. 210 ``sails in the distance'' No prehistoric use of sails on

the coast [see Narrative 46, below]

p. 209 moose skins p. 210 Hai'mas

Ex. 1048-38

#38. Gitrhahla feud with the Haida (211-213) p. 213 one native

successfully usurps the ``traditional'' fishing rights of

another by using the Government Registration system. p. 212 a

Schedule 5.

885

__________________________________________________________________

sail of cedar mat

Ex. 1048-41

#41. Haida invasion of Knemaes (219-20) page 220, groups

mentioned shooting at each other

Ex. 1048-42

#42. Niskae and Haida Wars (221-224) -- part I, ``in those days

there were no guns: part IV, p. 223, ``guns had arrived then.''

Ex. 1048-44

#44. Captivity of Haida Princesses among the Niskae (227-231)

[Robert Stewart (Niskae)/ Beynon, 1952 p. 227 ``There was a time

when the Haida made very frequent raids upon the Niskai and even

came up to the canyon, Gitwenksihlk. This was when the Hudson's

Bay Co., had its trading post at the mouth of the Nass River.''

maiming the Haida men p. 230 Haida compensation gifts paid to

the Niskae (p. 230) ``canoes, furs, foods, slaves, and copper

shields.''

Ex. 1048-45

#45. The last Haida Invasion on the Niskae (232a-237) [Robert

Stewart (Niskae)/ Beynon, 1948-9 p. 232a. ``This happened at the

Schedule 5.

886

__________________________________________________________________

time when the white traders arrived on the coast . . . The

informant [age 70] heard this from an uncle who was a young

child at the time.''

Ex. 1048-46

#46. Lutrhaisu and Naeqt, her son (239-248) [Salomon Johnson,

Kispayaks/ Interp. Constance Cox, 1920]

p. 243 ``. . .the canoe will be under sail''

Ex. 1048-47

#47. The epic of Naeqt (249-254) a man was starved so he sold

his name p. 249 moose skins at Qaldo p. 251 Kitwanga attacked by

Kitimat p. 253 paid mercenaries

Ex. 1048-48

#48. Naeqt the warrior (255-7) p. 256 copper shield p. 257 loss

of territory in compensation payment

Ex. 1048-50

#50. The tradition of the household of Naerhl (265-274) [Isaac

Taens, Gitenmaks/ Beynon 1920]

p. 274. ``shot him, [with a gun, one of the first used in the

Schedule 5.

887

__________________________________________________________________

country].''

Ex. 1048-51

#51. The Eagle Crest on a Kanhada Pole (275-6) [Beynon, 1952]

Naequt leading a raiding group from the Gitksan against the

Kitimat chief Senarhaet, gets two-eagle crest as trophy. p. 275

``There was a great controversy between the Kanhada (Raven-Frog)

house of Wistis of Gitsegyukla and the Hlengwarh of Gitwengaeh

[both Gitksan tribes] as to whether Wistis had the right to

erect a pole which Hlengwarh claimed was his. The question was

submitted to the Indian Agent [at Hazelton] . . .''

Ex. 1048-52

#52. The origin of Weehlaingwerh, Earthquake (277-94) p. 279

Hai'mas --one of the main players in the ``after the floods

redistribution of population p. 280 mother of Naeqt, Naeqt's

house has moose hoofs long passages on territory

Ex. 1048-51

#53. Person-of-the-lake (295-8) this one is historic if first

line is taken literally

Schedule 5.

888

__________________________________________________________________

Ex. 1048-54

#54. Origin of Gitwinhlkul (299-305) ``Native Brotherhood''

Ex. 1048-55

#55. The origins of the Gitwinlkul tribe (306-310) p. 306 many

copper shields (otherwise, very similar to #54) p. 309, smallpox

Ex. 1048-56

#56. Origin of family of Lurhawn (312-316) [George Derrick,

Gitwinlkul/ 1954]

``(313) In the pack which these brothers brought from the Nass,

they had leafed a tobacco (mi'yaen: to smoke).'' Smoking is part

of a relatively recent tobacco use complex, and more common to

the southern part of interior B.C. Smoking tobacco in this

context, therefore, suggests that it is of European derivation.]

pp. 312, 314, 315 guns and firearms

Ex. 1048-57

#57. Origins of Lurhawn in the Groundhog country (317-337) p.

330 miniature coppershields p. 335 moose hide moccasins

Ex. 1048-62

Schedule 5.

889

__________________________________________________________________

#62. 'Ahlawals family at Angyedae (349-50) [Charles Barton,

Kincolith/ 1927]

p. 349 ``guns of medium size''

Ex. 1048-64

#64. The ta'awdzep of the Gidzarhlaethl (354-7) p. 354-5, sails

of cedar mat

Ex. 1048-66

#66. Hunting territories of the Git'andaw (360-5) p. 364-5,

moose skins

Ex. 1053-18

#67. The bad waters of Cape Mudge (366-7) [Heber Clifton/

recorded Beynon, 1952]

p. 367 reference to a whisky feast, gun

Ex. 1048-68

#68. the Ginarhangik go down in rank (368-73) large copper

shield, moose skins, Haimas

Schedule 5.

890

__________________________________________________________________

Ex. 1048-70

#70. Origin of Neesksehnaet (376-82) p. 378 Legaic and nephew

several crest origins described

Ex. 1048-71

#71. War between the Gisparhlaw'ts and the Gitsees (383-93) p.

389 Hai'mas p. 391 copper shields

Ex. 1048-72

#72. The Niskae invasion of Gitsalase Territories (395-400)

[John Tate, Gisparlaw'ts/ Beynon, 1948]

p. 396 ``When the white traders came, the demand for furs was

very keen.''

Ex. 1048-73

#73. The story of Gitsemraelen (402-5) p. 403, reference to a

humanoid carving about 40 years old

Ex. 1048-75

#75. The last raid of the Niskae against Kispayaks (409-411)

[Jimmy Williams, Kispayaks/ Interp. Beynon, 1920]

Schedule 5.

891

__________________________________________________________________

p. 410 ammunition, ``heard the shots''

Ex. 1048-76

#76. The Larhsai'l of Kwanradalh (413-9) p. 413 plague p. 415

copper

Ex. 1048-79

#79. Secret Societies among the Gitksan (428-431) Arthur Mowatt,

Kispayaks and two others, also about 70/ recorded by Beynon,

1953. ``Moricetown people who were the Hagwelget''

Ex. 1048-80

#80. The Niskae and the Tsetsaut (432-3) EXHIBIT 902-9/collected

by James Teit for the National Museum, ca. 1915 p. 432 Over one

hundred years ago, it is not known how long ago, one of the

Tsetsaut killed a Niskae near Miziadin Lake.''

Ex. 1048-81

#81. Peace between Qaldo and the Niskae (435-9) [John Brown,

Kispayaks and Cox/ Interp. Constance Cox, 1920]

guns and white ladies' stockings

Schedule 5.

892

__________________________________________________________________

Ex. 1048-83

#83. Tsetsaut raid on Maluleq (443-9) Ex. 1055-1 [John Brown,

Kispayaks/ Interp. Beynon, 1920] p. 443 ``[In the lifetime of

his grandmother, John Brown heard her tell the following story

of another Tsetsaut raid of which she had been witness when

young.]'' references to white people

Ex. 1048-84

#84. Indian Frontiers at Kisgagas and Babine (450) [Arthur

Hankin, Hazelton/ 1923]

after the Hudson's Bay Company had arrived

Ex. 1053-19

#87. The Murder of a Khlawak by Pahl (454-5) [Elliott (Nass

River)/ narrative recorded by Beynon]

money, police, sails, round-bottomed boat, steamer

Ex. 1048-88

#88. The Massacre of white traders by Kamtsoop (456-8) [John

Tate, Gisparhlaw'ts/ Beynon, 1948]

Schedule 5.

893

__________________________________________________________________

p. 456 trading ship, sea otters

Ex. 1048-89

#89. when metals were first introduced among the Tsimsyan (459-

62) a Tlingit canoe maker uses copper tools -- ``this is the

first time that metal was found in use for the making of canoes

and other things.

Ex. 1048-90

#90. Early traders with the Tsimsyan (464-6) [Beynon, present

and narrating at a feast in 1949]

Japanese.

THE GWENHOOT OF ALASKA: IN SEARCH OF A BOUNTEOUS LAND, by Marius

Barbeau (1959) -- references which can be associated with dates.

PART II. THE ADAORH OR TRUE TRADITION OF THE TSIMSYAN

These are Barbeau's summaries (with some interpretation) of

narratives he was told. where the adaorh in Part II are

correlated with narratives in Part III, this is indicated in

Schedule 5.

894

__________________________________________________________________

square brackets, as in ``[cf. III 29]''. almost all of the

narratives in Part II can probably be linked to an historical

context, that is, if it is assumed that references to copper

and''Legaic'' are historic and protohistoric.

Ex. 1054

#8. The Gwenhoot on the march southwards (67-73) p. 73 ``They

also saved their large copper shields . . .''

Ex. 1054-9

#9. Strife between the Eagles and the Wolves (74-76) p. 75

copper shields p. 75 double-bladed dagger

Ex. 1054-12

#12. Six Canoes once landed at Klawaq (p. 84-91) p. 85 copper

shield This tale contains many elements which Barbeau considered

to be recent. It describes a young man who is trapped and

drowned by a giant clam, after being attacked by a giant

devilfish. It also refers to a giant man-eating halibut. There

is (p. 86) a young man who wears a stuffed eagle's head as a

crest. Barbeau, p. 90-91: ``The Thunderbird or Eagle clan system

among the Tlingit, the Tsimsyan, and the Haida, is of recent

adoption -- the latest of all social developments. Among the

Schedule 5.

895

__________________________________________________________________

Kwakiutl, of Alert Bay on the Northwest coast, it is less than a

hundred years old and goes back to the fur-trading activities of

the Russians and the British.'' re: the devilfish and the giant

clam, Barbeau writes: ``How the Na'a in the neighborhood of Cape

Fox and Portland Canal . . . could have secured actual knowledge

of these two monsters of the tropical seas is a question that

cannot be definitely answered because of two alternatives.'' one

is information may have come from Kanakas (Sandwich Islanders),

brought to the coast by white traders -- or some of the Indians

from southern Alaska may have been taken south aboard maritime

fur trade/sea-otter hunting European vessels. [see also: #19,

#23] cf. Alaska Beckons, 84-90

Ex. 1054-17

#17. The Tahltan ``slaves'' of the Sarau'wan (pp. 111-3) p. 113

``This all happened about the time the white people made their

appearance.'' [= kin may have disappeared when passing under the

glacier -- they (wolves) passed under the glacier. -- Tsetsaut

from Laxwiiyip were slaves -- the masters traded with whites]

cf. III 38

Ex. 1054-18

#18. On their way past the glacier to Leesems (pp. 114-6) p.

Schedule 5.

896

__________________________________________________________________

115: ``[the Russian Imperial Emblem]'' Barbeau's interpretation

of a crest described in the tale. p. 115 reference to copper

shield p. 119 copper shields [Stikine glacier -- huge monster on

the shore] cf. III 39,40,41

Ex. 1054-19

#19. The Flight of the Gwenhoot from Na'a southwards (pp. 117-

120) p. 117 copper shields, supernatural halibut p. 119 copper

shields caught by huge shellfish -- name ``Anchor of Copper''

[see also #12, #23]

Ex. 1054-22

#22. The Gwenhoot Eagles of the House of Neeswa'mak (127-131) p.

130 large coppers cf. III 47,48, see also III 63

Ex. 1054-23

#23. Migrating south from Lahrsail (pp. 132-4) p. 133 ``It is

here that they lost their Prince to a sea monster, Devil-Fish

and the Rock-Oyster Kahl'awn, which caught him while he was

swimming.'' [see #12, #19] cf. III 51,52

Ex. 1054-24

#24. How the Gitsemraelem Eagles Originated (135-138) p. 135

Schedule 5.

897

__________________________________________________________________

copper shields p. 137 copper shields cf. III 55,63

Ex. 1054-29

#29. How Legyaerh originated at Bella-Bella to the south (151-

154) p. 151 copper shields p. 151 Legaic

Ex. 1054-30

#30. The Origin of Neeswa'mak and Legyaerh (155-157) p. 155

Legaic cf. III 63

Ex. 1054-31

#31. The Bella-Bella origin of Legyaerh (158-161) p. 158 Legaic

(throughout) p. 160 copper shields cf. III 65

Ex. 1054-32

#32. The Rock Painting of Legyaerh on the Nass (162-165) p. 162

Legaic (throughout) p. 163,164,165 copper shields p. 165 moose

skins cf. III 67

Ex. 1053-8

#34. Raids of Legyaerh upon the Wudstae (pp. 169-74) p. 169:

``The following raid happened [a little over one hundred years

ago] . . .'' at the time the first white men came to Tsimsyan --

Schedule 5.

898

__________________________________________________________________

copper shields

Ex. 1053-9

#38. The Gisparhlaw'ts at war with the Masset Haida (pp. 189-92)

p. 192: copper shields cf. III 80

Ex 1053-10

#40. Tsimsyan Raid upon the Gitraitz Haida (pp. 196-7) p. 196:

``sailing ships'', trade with ``white seamen'', ``cloth'', etc.

gun, pre-post at Port Simpson -- guns cf. III 83

Ex 1053-11

#41. A fight between the Haida and the Tsimsyan, at Port Simpson

(198-201) pp. 198-201: ``The Haida used to come in large dugouts

to Port Simpson [after 1833] for trading.'' ``The missionary and

officials of the Hudson's Bay Company intervened and stopped the

fight.'' muskets, guns cf. III 84, 85a, 80 (latter part)

Ex 1053-12

#42. Legyaerh tried to conquer the Nass (pp. 202-3) p. 202: ``at

the time when the Kincolith Mission was established'' copper

shields cf. III 86

Schedule 5.

899

__________________________________________________________________

Ex. 1054-43

#43. A trading incident between the Niskae and the Gisparhlaw'ts

(pp. 204-208) p. gun p. 208 (on last page, in reference to

another version of the story): ``The upper Skeena was a very

rich district for the native trade, as this country was

bountiful with fruits, furs, and moose hides used for coats and

winter rainments. The white traders had now arrived on the coast

and were trading with the Tsimsyan.'' cf. 87, 89b

Ex. 1054-44

#44. Legyaerh's trading privileges on the upper Skeena (p. 209-

219) p. 209: ``The Gisparhlaw'ts had trading privileges with the

upper Skeena River tribes. These were further expanded through

the close association between Legyaerh, the Eagle head-chief,

with the Hudson's Bay Company, who established their post (1833)

on his camping grounds at what became known as Fort Simpson and,

later, Port Simpson. The Gisparhlaw'ts travelled up the Skeena

in their large Haida canoes carrying as much as ten tons of

freight and a crew of ten to twelve men. Legyaerh thus gained

great powers [as a middle man between the traders and the inland

natives], and was able to establish a monopoly in favour of

himself and his tribe.'' p. 209 umbrella [cf. Narratives III 88,

Schedule 5.

900

__________________________________________________________________

88a, 88b, 89a, 90, 91, 93, 95, 97, 98a, [notes of interest: p.

214, moose hides used ``as currency in the feasts'', and ``[In a

briefer narrative, we learn that (No. 90)] Legaerh regarded the

Skeena his own property and that of his tribe, the

Gisparhlaw'ts. The other tribes, but not his own, enjoyed the

possession of hunting and wild-berry territories, also fishing

stations. [``This was due to the late arrival of Legyaerh into

this tribe which was "parvenue', so to speak.''] p. 210 The

Kitselas had learned a new defence from Naeqt's experience when

raiding the Git'amat -- tie logs, then release. p. 211 gold rush

increased demand for Legaic

Ex. 1053-13

#47. The Last Big Iyaok of Legyaerh (p. 224-7) p. 225: Barbeau's

footnote describes this particular feast of Legyaerh as having

``happened after the establishment of the Hudson's Bay

Companies' post at Port Simpson. p. 225 moose skins p. 226 moose

skins, copper shields cf. Narratives III 100, 101

Ex. 1053-14

#48. Controversy over the Shark-fin and Gnawing-beaver crests

(p. 228-229) p. 228 ``This happened at Port Simpson, after the

Hudson's Bay Company had built its fort.'' copper shield p. 228

Schedule 5.

901

__________________________________________________________________

copper shield [Gisparhlaw-ts v. Hawelgyets -- Tom Hankins store

-- see #50] cf. III 102

Ex. 1054-50

#50. The Gisparhlaw-ts fight the Hagwelgyet (pp. 232-233) p.

232: ``Long after firearms had made their appearance in this

country . . .'' Tom Hankins' store at Gitenmaks, powder, shot, a

barrel of whisky cf. III 105

Ex. 1054-51

#51. The Establishment of Fort Simpson (234-6) p. 234 HBC fort,

Dr. Kennedy married Legaic's granddaughter [In III 107, Kennedy

marries Legaic's daughter. ``Until then all trading took place

on board of ships at anchor in the area between the Nass and the

Skeena Rivers.'' (p. 234) p. 235 ships, Russians, Aleuts, negro,

canon cf. III 106, 107

Ex. 1053-12

#52. A Cargo of Liquor from Victoria (237-8) p. 237 liquor cf.

III 108

Ex. 1054-53

#53. Legyaerh's conflict with Mr. Duncan (pp. 239-40) p. 239 cf.

III 109

Schedule 5.

902

__________________________________________________________________

Ex. 1054-54

#54. The Burial of the Last Legyaerh (pp. 241-2) p. 241: ``the

last Legyaerh died in 1934 . . .'' p. 241 Legyaerh had a

daughter whose name was Sarah cf. 110-111

Ex. 1054-55

#55. The End of a Long Trail (pp. 243-246) p. 243 (this

narrative deals with several time periods, including historic)

competing Tsimshian-Niskae claims to territories

PART III. TRADITIONAL NARRATIVES (ADAORH)

(narratives 1-28, see references above -- c.f.)

Ex. 1046-33

Narrative 33. Gitrhawn's trading privileges on the upper Skeena

(275-283) p. 278 Legaic (and throughout) p. 279 moose skins --

``Many years later, now that a new Legyaerh was chief of the

Gisparhlaw'ts, he wanted to overcome the Gitsalas, and to again

have the privilege of trading with the upper Skeena tribes and

also the Hagwelgyet tribe. It was from these people that the

Schedule 5.

903

__________________________________________________________________

most important skins or hides of moose and caribou were

obtained. These were valuable gifts for distribution among the

chiefs during the ylaeoks, and were very much in demand among

the coast tribes.''

Ex. 1046-36

Narrative 36. Sarau'wan, chief Mountain (296-299) p. 298 when

the body of the man who had been swallowed by the giant halibut

was found, he had a copper ring around his neck.

Ex. 1046-37

Narrative 37. Tsetsaut tribe, at the head of Portland Canal

(300-301) p. 301 a chief called Sarau'waeen made the Tsetsaut

his vassals, ``just at about the time the [white] traders began

to arrive at the Nass.''

Ex. 1046-38

Narrative 38. How the Tsetsaut Band came to the Niskae (302-306)

p. 305-6 ``One day, Sarau'wan, chief of the Larhskeek among the

lower Niskae village at Gitiks, was looking for a new hunting

territory, as the territories on the Nass (Leesems) River were

crowded, and he wanted more hunting grounds. They . . . came

upon the Larhkibu village of Sa'niq . . . Here they met with the

Schedule 5.

904

__________________________________________________________________

Larhkibu chief, and, seeing his great supply of fur and dried

fish and meats. They thought that it would be profitable to

trade with them who had no canoes and were living out of the way

and unbeknown to other people. The white seamen were now

arriving at the mouth of the Nass River to trade with the Niskae

and Sarau'wan quickly realized the advantage of keeping these

people here as a source of supply. He would retrade their

products to the white traders, and so for/many years he did

this. Thus it became generally said, these Tsetsaut people, who

were actually Larhkibu from Larh'wyip, the headwaters of the

Stikine River from the Tahltan, became known as the Tsetsaut

slaves of Sarau'wan.''

Ex. 1046-39

Narrative 39. The great Glacier of the Stikine (307-309) origin

of the name for a copper shield ``Down-lay-the-Copper-Shield''

Ex. 1046-41

Narrative 41. Person of the tree, a Larhskeek (311-313) p. 313

moose skins

Ex. 1046-42

Narrative 42. The flight of the Gwenhoot from Na'a southwards

Schedule 5.

905

__________________________________________________________________

(314-319) p. 317 copper anchor, copper shields, copper anchor

trapped by a huge shellfish

Ex. 1046-47

Narrative 47. The Gunhoot Larhskeek (332-335) p. 332 ``. . .

they used coppers for an anchor.''

Ex. 1046-48

Narrative 48. The conflict at Larhsail, Alaska (336-338) p. 337

coppers

Ex. 1046-49

Narrative 49. Why the Thunderbirds and the Wolves fought at

Larhsai'l, Alaska (339-341) p. 341 ``they used large coppers to

anchor the canoes . . .''

Ex. 1046-50

Narrative 50. The Thunderbird clansmen fleeing southwards (342-

344) p. 342 a man's hand is caught in a large shellfish

Ex. 1046-53

Narrative 53. The Gidaranits Discovery of Ktsem'ateen (348-351)

p. 348 The Prince is caught by a giant clam p. 350 copper tools

Schedule 5.

906

__________________________________________________________________

p. 351 moose skin

Ex. 1046-54

Narrative 54. The fight at Na'a (Alaska) (352-354) p. 352 using

a copper as an anchor p. 352 Prince is caught by a giant clam p.

352 reference to Legyaerh p. 354 the Gwenhoot fugitives lose

their copper anchor see page 134 in II No. 23

Ex. 1046-55

Narrative 55. The flight of the Gwenhoot from the North (355-9)

pp. 356, 358, 359 copper shield

Ex. 1046-56b

Narrative 56b. The Stone Eagle crest of Gitsemraelem (362)

mention of this crest being transferred to Legaic

Ex. 1046-56c

Narrative 56c. The Stone Eagle of Legyaerh (363)

Ex. 1046-62

Narrative 62. Lagyaerh of the Gisparhla'ts tribe (385-6) p. 385

``The moment Neeswa'mak died, Legyaerh put coppers (hayaets) on

the body of the dead chief and distributed furs and other goods

to all the clans, except the Eagle clansmen, of the Tsimsyan

Schedule 5.

907

__________________________________________________________________

tribes. So that nobody could dispute Legyaerh's title as chief

of the Gisparhlawts.''

Ex. 1046-63

Narrative 63. The origin of Legyaerh and Neeswa'mak (387-392)

Legaic origin throughout (several versions) p. 392 large copper

Ex. 1046-65

Narrative 65. The Bella-Bella origin of Legyaerh (397-405) p.

403 Legaic had ``a face which was to symbolize Legyaerh and

twelve copper shields, each of which had a name and were very

valuable'' painted on a rock. ``There were many countries where

these came from, and Legyaerh had traded many slaves and many

moose hides for these shields.''

Note opening lines of #67, and the following from #65, p. 501,

suggest the recency of this action: ``(401) The rock painting

was still visible there is 1914, when it was indicated to him

(Beynon) as being Welgyilks-galtemhlk, Face-of Picture. The

paintings as Beynon remembers it was about 6 feet high, and the

coppers, about 3 feet and 2 feet in width. "When I first saw it,

it was very plain. But it has now completely washed away.''

Schedule 5.

908

__________________________________________________________________

Ex. 1046-66

Narrative 66. The royal Gwenhoot among the Git'andaw (406)

Legaic assumes head-chieftainship of the Git'ansdaw, as well as

remaining head-chief of the Gisparhlaw'ts

Ex. 1046-72

Narrative 72. The last invasion of the Wudstae upon the Tsimsyan

(429-437) Legaic throughout

Ex. 1046-76

Narrative 76. Legyaerh's attack on the Haida and their reprisal

(459-466) p. 461 Legaic taken captive.

Ex. 1046-81

Narrative 81. Haida invasion of the Tsimsyan (498-502) p. 498

Legaic throughout

Ex. 1046-82

Narrative 82. The households of Lutkudzemti, a Thunderbird (503-

508) traditions of the house -- historic references. eg. p. 505

re: the myth of the Wooden-Eagle: ``When the Stone Eagle was

cast as an anchor into the sea and was lost, the royal chiefs

Trahlarhaet and Nees'wamak wanted the Wooden-Eagle from

Schedule 5.

909

__________________________________________________________________

Lutkudzemti, but could not get it, even for their offer to pay

with slaves, canoes, and coppers. Lutkudzemti would not sell it.

Guhlrairh, chief of the Git'andaw tribe of the Tsimsyan also

wanted to buy it, just before the white people arrived in this

country, but without success.''

Ex. 1046-85b

Narrative 85b. Clah's reminiscences on Legyaerh (pp. 519-521) p.

519 ``One day -- date about 1840 -- I went, a naked little

fellow, into the chief's house . . .'' (three brief versions of

three separate events, each dated) p. 519 Legaic's nephew shot

in the eye with a bullet, which comes out the back of his head.

Kennedy, Legaic p. 521 young Legaic

Ex. 1046-87

Narrative 87. A trading incident between the Niskae and the

Gisparhlaw'ts (526-537) p. 526 moose hides, reference to

Legyaerh, p. 531 cooking boxes with iron bottoms pp. 532, 533,

guns p. 533 bright red shirt

Ex. 1046-88a

Narrative 88a. Trading Ventures of Legyaerh (pp. 538-46) p. 538

Schedule 5.

910

__________________________________________________________________

``Legyaerh, through his daughter's marriage [to Dr. Kennedy],

had a great deal of influence with the Hudson's Bay Co.'' [new

defence, fortress, logs]

Ex. 1046-88b

Narrative 88b. The war club representing a women (547-548)

Legaic throughout

Ex. 1046-89a

Narrative 89a. Legyaerh's trading privileges (549) moose skins

and hides, trade with the upriver people three times a year

Ex. 1046-89b

Narrative 89b. Legyaerh's last raid on the Upper Skeena (pp.

550-3) p. 550, re Legaic's privileged trade with upriver people.

``The Upper Skeena was a very rich district for the trade, as

you traded with the Git'wenraerh, the Git segyukla, the

Gitwinhlkul, the Git'enmaks, the Kispayaks, and the Hagwilgyet

tribes. This country was bountiful in furs and with fruits, and

above all, moose hides (Wiyawn) used for coats and winter

rainments. The white traders had now arrived on the coast and

were frequently coming to trade with the Tsimsyan and the

Niskae.'' umbrellas

Schedule 5.

911

__________________________________________________________________

Ex. 1046-90

Narrative 90. Legyaerh's trading claims (554)

Ex. 1046-92

Narrative 92. The last fight of Legyaerh and the Kispayaks (pp.

557-9) p. 557 moose hides (hliyawn) p. 558 ``Now Legyaerh had a

new narhnok which he exhibited and called Wil-dedagiltk-el-

larhae: ``Where-folds-(plural)-the-Sky.'' It was an umbrella

which was made of very bright colours. He had acquired it from a

coast trader.''

Ex. 1046-93

Narrative 93. Legyaerh's attack on the Kispayaks tribe (560-562)

p. 560 umbrella, daaq house. Informant chief Semedeek, Beyon

interpreter in 1924. Informant stated (p. 562): ``I heard this

narrative from that woman herself, when she gave it out among

the women of the household. I was small, just able to remember,

a small boy.''

Ex. 1046-94

Narrative 94. Legyaerh at Kispayaks with his umbrella (pp. 563-

4) p. 563 Legyaerh and his umbrella

Schedule 5.

912

__________________________________________________________________

Ex. 1046-95

Narrative 95. The Gisparhlawt's raid on the Kispayaks (pp. 565-

7) [subtitle: or the raid by Legyaerh at the time of the cholera

epidemic] p. 565 ``one of the Kisparhlaw'ts opened an umbrella''

p. 566 mention of an epidemic

Ex. 1046-96

Narrative 96. Legyaerh's raid upon the Git'enmaks (568)

Ex. 1046-97

Narrative 97. Raid of the Tsimsyan with Legyaerh, against

Kispayaks (pp. 569) p. 569 umbrella ``Civilization came and it

prevented these war debts being paid back. The Gov't sent a man

of war and it stopped Legyaerhs from ruling the river again.'

Mrs. Cox, who was interpreter for this story in 1924 (told by

Simon Gamanoot) said that this had happened in her mother's

lifetime.

Ex. 1046-98a

Narrative 98a. Raiders disguised as wolves (pp. 570-) p. 570

Legyaerh and his umbrella

Schedule 5.

913

__________________________________________________________________

Ex. 1046-105

Narrative 105. the Gisparhlaw'ts fight the Hagwelgyet (pp. 595-

6) (p. 595) ``The following event happened long after firearms

had made their appearance in this country. There had been bad

feelings for some time between the Gisparhlaw'ts tribe and the

Hagwilgyet "a Dene tribe], at the Bulkley canyon, near the

present Hazelton. Threats passed between them as to their power

in warfare. These feelings grew very tense, as the Hagwelget

recently had returned from an interior raid which was

successful. They were looking for other tribal lands to

invade.''

p. 595, shot with guns, Tom Hankin, powder, shot, guns, barrel

of whisky

F.1 ``this happened about seventy-five years before 1927,

according to informant. Among those that were there, was Tamks,

who was then a young man. It happened before Legyaerh's burning

of the Kispayaks village.''

Ex. 1046-106

Narrative 106. The establishment of Fort Simpson (p. 597) how

Schedule 5.

914

__________________________________________________________________

Legaic gave a place to the Hudson's Bay Company for them to

build the second Fort Simpson and how he then brought his people

to live permanently at this site.

Ex. 1046-107

Narrative 107. The Hudson's Bay company moves away from the Nass

River (pp. 598-601) [see also #122 re white traders at the Nass

prior to est. of Fort Simpson]

p. 598 ships' canons, traders ``anchored in the area between the

Skeena River and Nass River coastline.''

p. 599 [traders with Aleut hunters] ``the traders established

themselves on the many small islands near Keraw'e (now known as

Big Bay, close to Port Simpson). -- the village sites of L.'s

people were being taken by the Aleuts after L.'s people moved to

Fort Simpson.

copy of this whole story -- it mentions Aleut sea otter hunting

around Fort Simpson

Ex. 1046-109

Narrative 109. When Legyaerh tried to murder Mr. Duncan (pp.

606-11)

Schedule 5.

915

__________________________________________________________________

Ex. 1046-111

Narrative 111. Sarah Legyaerh (pp. 613-4) p. 613 ``Legyaerh . .

. had many slaves, whom he kept in two villages. It took three

weeks to free them, when the man-of-war came [to the mouth of

the Skeena] for that purpose [in 1872?].

Ex. 1046-117

Narrative 117. The destruction of Gisramawen by Legyaerh (628)

Legaic throughout

Ex. 1046-118

Narrative 118. The Gisparhlaw'ts attack the Gitsalas fortress

(629-631) Legaic throughout p. 631 small copper shield

Ex. 1046-119

Narrative 119. Legyaerh and Laelt of Kitwanga (631?)

Ex. 1046-120

Narrative 120. How Taimks saved William Duncan's life. (pp. 632-

6)

Ex. 1046-122

Schedule 5.

916

__________________________________________________________________

Narrative 122. Duncan usurped Saru'wen's trading privilege (pp.

639-40)

Ex. 1046-126

Narrative 126. The Larhskeek of Gitsemraelem (661-666) p. 661

copper shields p. 661 copper shields

Schedule 5.

917

__________________________________________________________________

SCHEDULE 5.

TERRITORIAL AFFIDAVIT OF WILLIAM BLACKWATER

No. 0843

SMITHERS REGISTRY

IN THE SUPREME COURT OF BRITISH COLUMBIA

BETWEEN:

DELGAMUUKW also known as KEN MULDOE, 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 THE RIGHT

OFTHEPROVINCE OF BRITISH COLUMBIA and THE

ATTORNEY GENERAL OF CANADA

DEFENDANTS

AFFIDAVIT

I, Walter Blackwater, hereditary Chief of the Village of

Kispiox, in the Province of British Columbia, MAKE OATH AND SAY

AS FOLLOWS:

Schedule 5.

918

__________________________________________________________________

1.

I am a Gitksan Hereditary Chief and as such have personal

knowledge of the matters and facts hereinafter deposed to

except where they are stated to be on information and

belief, in which case I verily believe them to be true.

2.

My Gitksan chief name is Diisxw. I am a Chief in the House

of Niist, of the Lax Gibuu (Wolf) Clan.

A. KSI LUU WIT WIIDIT TERRITORY (Kotsine Creek)

3.

I have obtained permission from Niist (David Blackwater), a

plaintiff in this action, to describe and speak in respect

of the Xsi Luu Wit Wiidit and Luu Siigim Baad Txemsem

territory claimed by the House of Niist. This territory is

located on Xsitxemsem (Nass River) about 90 miles north of

the Village of Kispiox.

4.

I was instructed about the Xsi Luu Wit Wiidit and Luu

Siigim Baad Txemsem territory by: the former Niist (Charles

Sampson), and the former Gibeumget (Thomas Sampson), the

former Diisxw (my mother Mary Blackwater), the former

Gaiyimiaxhaa (Charles Stevens), the former Gwiniiha'osxw

(Peter Shanoss), the former Gas Aguun (Alfred Shanoss), the

Schedule 5.

919

__________________________________________________________________

former Hliikatxw (Sam Hope), and the former Asgii (Ester

Stevens, my grandmother), all members of the House of

Niist; the former Wil Minosik (Jimmy Blackwater, my

father), a member of the House of Wii Minosik; and the

former Dawamuxw (Moses Stevens, my grandfather), a member

of the House of Dawamuxw, all of whom are now deceased.

They pointed out the boundary and major landmarks to me

when we travelled within the Xsi Luu Wit Wiidit and Luu

Silgim Baad Txemsem territory. They told me this territory

belonged to Niist.

5.

The boundary of the Xsi Luu Wit, Wiidit and luu Silgim Baad

Txemsem territory can be described as follows:

Starting on the north side of Xsitxemsem (Nass River)

opposite the mouth of Xsi Galliixawit (Sallysout Creek),

the boundary runs north to Lip Sganist (un-named mountain

on government maps), the boundary then runs northwest along

the height of land west of Xsi Luu Wit Wiidit (Kotsine

River) to the height of land at the head of Shanoss Creek,

here the boundary runs west along the height of land to

Xsihl Guugan (Taylor River) near the confluence of Xsu Wii

Luu Dagwigit (Upper Taylor River) and Xsihl Guugan (Taylor

Schedule 5.

920

__________________________________________________________________

River), here the boundary runs southwest to the height of

land west of Xsu Wii Luu Dagwigit (Upper Taylor River),

then runs north along the height of land west of Xsu Wii

Luu Dagwigit, here the boundary runs west along the height

of land to Sto'ot Xsitxemsem (Bell Irving River) opposite

the mouth of Xsi Guut Gwinuuxs (Owl Creek) here the

boundary runs northeast to the height of land west of Xsi

Maxhia Biluust Maawxs (Konigus Creek), here the boundary

runs north to Xsi Maxhia Biluust Maawxs, this point being

about 20 miles from the mouth of Xsi Maxhia Biluust Maawxs,

the line them runs southeast along the center of Xsi Maxhla

Biluust Maawxs (Konigus Creek), to Xsitsemsem (Nass River),

here the boundary runs south along the height of land to

Wil Maxhla Dox Hla Genx Wii Gwiik (un-named mountain on

government maps), the boundary then runs southeast along

Wil Maxhla Dox Hia Genx Wii Gwiik and continues southeast

along the height of land to the confluence of Luu Silgim

Baad Txemsem (Muckaboo Creek) and Xsitxemsem (Nass River),

here the boundary crosses Xsitxemsem and runs northeast

along the height of land to Loop Guu Hanak (un-named

mountain on government maps), here the boundary runs

southeast along Loop Guu Hanak for about eleven miles to

the head of an un-named creek which flows southeast into

Schedule 5.

921

__________________________________________________________________

Xsitxemsem (Nass River), this creek being just north of the

confluence of Xsitxemsem and Xsi Tuutsxwhl Ax (Damdochax

Creek), the boundary then runs southwest to and down the

west bank of this un-named creek to Xsitxemsem, here it

runs south along the center of Xsitxemsem back to the

starting point.

6.

Other Gitksan Head Chiefs have territories which border on

the Xsi Luu Wit Wiidit and Luu Silgim Baad Txemsem

territory. Gyolugyet and Skiik'm Lax Ha own territories to

the west. Kliiyem Lax Haa and Wii Minosik own territories

to the east. Luus and Baskyelaxha own territories to the

southeast and south. The Tahltan people own the territories

to the north.

7.

Geographical features on the boundary and within the

territory are:

LAKES

1. Dam Sabaiya

(Un-named on government maps, locally known as Dolly Varden

Lake)

Schedule 5.

922

__________________________________________________________________

RIVERS AND CREEKS

1. Luu Silgim Baad Txemsem

(Muckaboo Creek)

2. Xsu Wii Luu Dagwigit

(is head-waters portion of the Taylor River)

3.

4.

5.

Xsi Luu Wit Wiidit

(Kotsine River)

Xsitxemsem

(Nass River)

Sto'ot Xsitxemsem

(Bell Irving River)

6.

Xsi Maxhla Biluust Maawxs

(Konigus Creek)

MOUNTAINS

Schedule 5.

923

__________________________________________________________________

1. Maxhla Biluust Maawxs

(un-named on government maps)

2.

3.

4.

8.

Wil Maxhla Dox Hia Genx Wii Gwiik

(un-named on government maps)

Lip Sganisit

(un-named on government maps)

Loop Guu Hanak

(un-named on government maps)

The boundary of the Xsi Luu Wit Wiidit and Luu Silgim Baad

Txemsem territory described above and its ownership by the

House of Niist has remained the same through my lifetime

and I have been told by the people mentioned in Paragraph

4, above, that it has remained the same through previous

generations.

B. TAAX TSINIHL DENDEN TERRITORY

10. I have obtained permission from Niist (David Blackwater), a

Schedule 5.

924

__________________________________________________________________

plaintiff in this action, to describe and speak in respect

of the Taax Tsinihl Denden territory claimed by the House

of Niist. This territory is located sixteen (16) miles

north of the village of Kuldo.

11. I was instructed about the Taax Tsinihl Denden territory

and its boundary by the former Baskyelaxha (Jack Tate) a

member of the House of Baskyelaxha, the former Gibeumgyet

(Thomas Sampson), and the former Diisxw (my mother, Mary

Blackwater) all members of the House of Niist. Jack Tate

and Thomas Sampson pointed out the boundary and major

landmarks to me when we travelled within the Dam Tsinihl

Denden territory. They told me this territory belongs to

Niist.

12. The boundary of the Taax Tsinihl Denden territory can be

described as follows:

Starting on the west bank of Xsan (Skeena River), about a

mile and a half south of Tsinihl Denden (Canyon Creek), the

boundary follows along the center of Xsan north to the

height of land immediately south of Xsisga Maldit Angii'i

(Tally Creek), here the boundary runs northwest along the

Schedule 5.

925

__________________________________________________________________

height of land north of Xsi Tsinihl Denden (Canyon Creek),

and Xsi Tsinihl Denden Ando'o (Vile Creek) to the height of

land south of Xsi Lax Uu Ando'o (un-named creek on

government maps), here the boundary runs west along the

height of land to Xsitxemsem (Nass River), about a quarter

of a mile south of the confluence of Xsi Lax Uu Ando'o and

Xsitxemsem, here the boundary runs south along the center

of Xsitxemsem to the confluence of Xsi Tsinihl Denden

Ando'o (Vile Creek). From here the boundary runs south-east

along the height of land south of Xsi Tsinihl Ando'o and

crosses Xsi Andap Matx (upper Canyon Creek) about seven

miles upstream from Taax Tsinihl Denden (Canyon Lake). Here

the boundary continues east along the height of land to

Xsan at point of commencement.

13. Other Gitksan Head Chiefs have territories which border on

the Taax Tsihihl Denden territory. To the north is another

territory owned by Niist, to the northwest is a territory

owned by Luus; to the east and south is a territory owned

by Gwinin Nitxw; and to the southwest and west is the

territory owned by Baskyelaxha.

14. Geographical features on the boundary and within the

Schedule 5.

926

__________________________________________________________________

territory are:

LAKES

1. Taax Tsinihl Denden

(Canyon Lake)

2.

3.

Dam Ansa Axws

(un-named on government maps)

Dam Angya Ge'en

(un-named on government maps)

RIVERS AND CREEKS

1.

2.

3.

Xsitxemsem

(Nass River)

Xsan

(Skeena River)

Xsi Tsinihl Denden

(Canyon Creek)

Schedule 5.

927

__________________________________________________________________

4.

5.

6.

7.

8.

9.

Xsi Tsinihl Denden Ando'o

(Vile Creek)

Wil Skaneexhl Ho'oxs

(un-named on government maps)

Xsi Luu Lak Leexs

(un-named on government maps)

Xsu Luu Masaawit

(un-named on government maps)

Xsi Luu Maa Skeexit

(un-named on government maps)

Xsi Luu Lax Loobit

(un-named on government maps)

10. Xsi Genuu Djap

(un-named on government maps)

11.

Xsi Andap Matx

Schedule 5.

928

__________________________________________________________________

(Canyon Creek above Canyon Lake)

12. Xsisga Maldit Ando'o

(un-named on government maps)

13. Gasa Lax Loobit

(un-named on government maps)

14. Xsan Luu Skeexs

(un-named on government maps)

MOUNTAINS AND HILLS

Andap Matx

(un-named on government maps)

15. The boundary of the Taax Tsinihl Denden territory described

above has remained the same through my lifetime and Jack

Tate and Thomas Sampson told me that it has remained the

same since long before the arrival of European people here.

Jack Tate and Thomas Sampson told me that the House of

Niist had owned, harvested and looked after the Taax

Tsinihl Denden territory from generation to generation.

Schedule 5.

929

__________________________________________________________________

16. I have heard the Taax Tsinihl Denden territory described in

Gitksan and the territory of Niist.

C. DAM TUUTSXWHL AX TERRITORY (Blackwater Lake)

17. I have obtained permission from Robert Stevens (Wii

Minosik), a plaintiff in this action, to describe and speak

in respect of the Dam Tuutsxwhl Ax territory claimed by the

House of Wii Minosik. This territory is located about

fifty-five miles north of the village of Kisgagaas.

18. I was instructed about the Dam Tuutsxwhl Ax territory and

its boundary by: the former Wii Minosik (my father, Jimmy

Blackwater), a member of the House of Wii Minosik, by the

former Dawamuxw (my grandfather Moses Stevens), a member of

the House of Dawamuxw, by the former Asgil (my grandmother,

Esther Stevens), by the former Gaiyimiaxha (Charles

Stevens), by my mother the former Diiswx (Mary Blackwater),

all members of the House of Niist, all of whom are now

deceased. They pointed out the boundary and major landmarks

Schedule 5.

930

__________________________________________________________________

to me when we travelled within the Dam Tuutsxwhl Ax

territory. They told me this territory belongs to Wii

Minosik.

19. The boundary of the Dam Tuutsxwhl Ax territory can be

described as follows:

Starting at Wil Skaiyip (Martins Flats), the boundary runs

west then south along the height of land to An Damhl (un-

named on government maps), here the boundary runs northwest

along the height of land north of Xsi Lax Uu (Shilahou

Creek) and continues west along the height of land north of

Xsi Lax Uu Ando'o (un-named on government maps) to the

confluence of an un-named tributary which flows southwest

into Xsi Uu Ando'o from an un-named lake, the boundary then

runs north to the height of land north of Xsi Lax Uu Ando'o

then runs southwest to a point on Xsitxemsem (Nass River),

this point being about seven miles south of the confluence

of Xsi Tuutsxwhl Ax (Damdochax Creek) the boundary then

runs north up the center of Xsitxemsem to the first creek

on the east bank of Xsitxemsem (Nass River), just north of

Xsi Tuutsxwhl Ax, it then runs north east along the east

bank of this un-named creek to Loop Guu Hanak (un-named

Schedule 5.

931

__________________________________________________________________

mountain on government maps), here it runs northwest along

Loop Guu Hanak to the height of land at the head of the Naa

Baad Xsi Luu Am Maldit (Yaza Creek), it then runs east

along the height of land to Dim Geiss Hanni Jok (Panorama

Mountain) here the boundary continues east along the height

of land north of Xsi Luu Am Maldit (Slowmaldo Creek) to

Tsaphl Gwiikw (Groundhog Mountain), the boundary then runs

south along the height of land to the west bank of the un-

named tributary of Xsi Miin Anhl Gii (Barker Creek) to Xsi

Miin Anhl Gil and crosses the creek here and runs south

along the height of land to Miin Anhl Gii (un-named

mountain on government maps), the boundary continues

southeast along the height of land west of Xsan (Skeena

River),

to

Wil

Luu

Skeexwit

(un-named

mountain

on

government maps), at head of Foster Creek, and continues

southeast along the height of land at the head of Xsan Six

Moohl (Sansixmor Creek) to the east end of Wil Luu Skihl

Get (un-named mountain on government maps), here the

boundary runs west then south along the height of land

south of Xsan Six Moohl (Sansixmor Creek) and Xsu Wil

Skaiyip (Damshilgwit Creek) back to Will Skaiyip.

20. Other Gitksan Head Chiefs have territories which border on

Schedule 5.

932

__________________________________________________________________

Wii Minosik's territory. To the north is Geel; to the east

is Wii Gaak (Ax Moogwasx); to the southeast is Wiigyet; to

the south is Gwinin Nitxw; to the southeast is Luus; to the

west is Niist; to the northwest is Kliiyem Lax Haa.

21. Geographical features on the boundary and within the

territory are:

LAKES

1.

2.

Dam Tuutsxwhl Ax

(Blackwater Lake)

Dam Uumxswit

(Wiiminosik Lake)

RIVERS AND CREEKS

1.

2.

Xsitxemsem

(Nass River, a.k.a. Luu Legax Baad Txemsem)

Xsi Luu Am Maldit

(Slowmaldo Creek)

Schedule 5.

933

__________________________________________________________________

3.

4.

5.

6.

Naa Baad Xsi Luu Am Maldit

(Yaza Creek)

Xsi Tuutsxwhl Ax

(Damdochax Creek)

Xsu Guuhiilin

(un-named on government maps)

Xsi Genuu Tsap

(Deadfall Creek)

7.

8.

9.

Xsi Luu Lax Loobit

(un-named on government maps)

Xsi Miin Anhl Gii

(upper Barker Creek)

Xsan Six Moohl

(Sansixmor Creek)

10. Xsu Wil Skaiyip

Schedule 5.

934

__________________________________________________________________

(Damshilgwit Creek)

11. Xsi Gelt Sagat

(un-named on government maps)

MOUNTAINS

1.

2.

An Damhl

(un-named on government maps)

Lo'op Guu Hanak

(un-named on government maps)

3.

4.

5.

6.

Dim Geiss Hanil Jok

(Panorama Mountain)

Tsaphl Gwiikw

(Groundhog Mountain)

Miin Anhl Gii

(un-named on government maps)

Guu Hiilin

Schedule 5.

935

__________________________________________________________________

(Slowmaldo Mountain)

7.

8.

9.

Skanisim Xsan Six Moohl

(Part of Slowmaldo Mountain)

Sas Mihla

(Part of Slowmaldo Mountain)

Galax Uu Dam Tuutsxwhl Ax

(un-named on government maps)

10. Miin Anhl Gii

(un-named on government maps)

11. Wil Luu Skeexwit

(un-named on government maps)

12. Maxhla An Muuxws

(un-named on government maps)

OTHER FEATURES

Wil Skaiyip

Schedule 5.

936

__________________________________________________________________

(Part of Martins Flats(*), as located on government maps)

*Martins Flats is misplaced on government map. Should be

at Fifth Cabin, south side Damshilgwit Lake.

area

22. The boundary of the Dam Tuutsxwhl Ax territory described

above has remained the same through my lifetime and the

persons mentioned in paragraph 18 above told me that it has

remained the same since long before the arrival of European

people here. They told me that the members of the House of

Tuutsxwhl Ax territory from generation to generation. They

told me that the information on the Dam Tuutsxwhl Ax

territory was passed on to them by the former Wii Minosik

who is deceased now.

23. I have heard the Dam Tuutsxwhl Ax territory described in

the Gitksan feast as being owned by the House of Wii

Minosik.

D.

MIIN LAX MIHL TERRITORY

24. I have obtained permission from Kliiyem Lax Haa (Eva

Sampson), a plaintiff in this action, to describe and speak

Schedule 5.

937

__________________________________________________________________

in respect of the Miin Lax Mihl territory claimed by the

House of Kliiyem Lax Haa. This territory is located on

Xsitxemsem (Nass River) about one hundred (100) miles north

of the village of Kispiox.

25. I was instructed about the Miin Lax Mihl territory and its

boundary by the former Wii Minosik (my father, James

Blackwater), a member of the House of Wii Minosik; by the

former Niist (Charles Sampson), the former Hliikatxw (Sam

Hope), the former Gwiniho'osxw (Peter Shanoss), the former

Gas Aguun (Alfred Shanoss), the former Gaiyimlaxhaa

(Charles Stevens), the former Diisxw (my mother, Mary

Blackwater), the former Asgii (Esther Stevens), all of whom

are members of the House of Niist; and by the former

Dawamuxw (my grandfather, Moses Stevens); all of whom are

now deceased. They pointed out the boundary and major

landmarks to me when we travelled within the Miin Lax Mihl

territory. They told me this territory belongs to Kliiyem

Lax territory. They told me this territory belongs to

Kliiyem Lax Haa.

26. The boundary of the Miin Mihl territory can be described as

follows:

Schedule 5.

938

__________________________________________________________________

Starting at the confluence of Luu Silgim Baad Txemsem

(Muckaboo Creek) and Xsitxemsem (Nass River), the boundary

runs northwest along the height of land west of Xsitxemsem

(Nass River), to Wil Maxhla Dox Hla Genx Wii Gwook (un-

named mountain on government maps), the boundary continues

northwest along Wil Maxhla Dox Hla Genx Wii Gwiik then runs

north along the height of land to the confluence of Xsi

Maxhla Biluust Maawxs (Konigus Creek) and Xsitxemsem (Nass

River), the boundary then runs north along the center of

Xsitxemsem (Nass River), for about

3

miles to the

confluence of the un-named creek flowing west into

Xsitxemsem (Nass River), the boundary then runs northeast

along the center line of this un-named creek to the height

of land at its headwaters, here the boundary runs southeast

along the height of land east of Xsitxemsem (Nass River),

to Dim Geiss Hanni Jok (Panorama Mountain), here the

boundary runs west and south along the height of land at

the head of Naa Baad Xsi Luu Am Maldit (Yaza Creek) to Loop

Guu Hanak (un-named mountain on government maps), the

boundary then runs southwest back to the starting point.

27. Other Gitksan Head Chiefs have territories which border on

Schedule 5.

939

__________________________________________________________________

the Miin Lax Mihl territory. To the east lies the territory

of Geel, while to the south lies the territory of Wii

Minosik. To the west is the territory of Niist. To the

north is the territory belonging to the Stikines (Tahltan

nation).

28. Geographical features on the boundary and within the

territory are:

RIVERS AND CREEKS

1.

2.

3.

4.

Xsitxemsem

(Nass River)

Luu Silgim Baad Txemsem

(Muckaboo Creek)

Xsi Wil Luu Skihl An Malgwa

(un-named on government maps)

Xsi Maxhla Biluust Maawxs

(Konigus Creek)

Schedule 5.

940

__________________________________________________________________

MOUNTAINS

1.

2.

3.

Dim Geiss Hanni Jok

(Panorama Mountain)

Lo'op Guu Hanak

(un-named on government maps)

Wil Maxhla Dok Hla Genx Wii Gwiik

(un-named on government maps)

MOUNTAIN AREA

1.

2.

Miin Lax Mihl

(un-named on government maps)

Wil Luu Skihl An Malgwa

(un-named on government maps)

29. The boundary of the Miin Lax Mihl territory described above

has remained the same through my lifetime and the people

mentioned in paragraph 25 told me that it has remained the

same since long before the arrival of European people here.

They told me that the members of the House of Kliiyem Lax

Schedule 5.

941

__________________________________________________________________

Haa had owned, harvested and looked after the Miin Lax Mihl

territory from generation to generation.

30. I have heard the Miin Lax Mihl territory described in the

Gitksan feast as being owned by the House of Kliiyem Lax

Haa.

E. XSI LAX UU ANDOO'O TERRITORY

31. I have obtained permission from Jeff Harris Sr. (Luus), a

plaintiff in this action, to describe and speak in respect

of the Xsi Lax Uu Andoo'o territory claimed by the House of

Luus. This territory is located about forty-two miles

northwest of the Village of Kuldo.

32. I was instructed about the Xsi Lax Uu Andoo'o territory and

its boundary by the former Luus (Abel Tait), a member of

the House of Luus, Kuldo Lax Gibuu Clan, who is now

deceased. Abel Tait pointed out the boundary and major

landmarks to me when we travelled within the Xsi Lax Uu

Andoo'o territory. He told me this territory belongs to

Luus.

Schedule 5.

942

__________________________________________________________________

33. The boundary of the Xsi Lax Uu Andoo'o territory can be

described as follows:

Starting at the confluence of Xsi Lax Uu Ando'o (un-named

creek on government maps, runs west to Nass River opposite

the head of Shilahou Creek) and Xsitxemsem (Nass River),

the boundary runs north along the center of Xsitxemsem

(Nass River) for about one and a half miles, here the

boundary runs east along the height of land north of Xsi

Lax Uu Ando'o (un-named creek on government maps) to

Blackwater Peak, here the boundary runs southwest and west

along the height of land east and south of Xsi Lax uu

Ando'o to Xsitxemsem, about a quarter mile south of the

confluence of Xsi Lax uu Ando'o and Xsitxemsem (Nass

River), here the boundary runs north along the center of

Xsitxemsem (Nass River) back to the starting point.

34. Other Gitksan Head Chiefs have territories which border on

Luus' Xsi Lax Uu Andoo'o territory. To the north is Wii

Minosik, to the south is Niist, and to the west is another

territory of Niist, to the east is the territory of Gwinin

Nitxw.

Schedule 5.

943

__________________________________________________________________

35. Geographical features on the boundary and within the

territory are:

1.

Xsitxemsem

(Nass River)

2.

Xsi Lax Uu Andoo'o

(un-named on government maps)

36. The boundary of the Xsi Lax Uu Andoo'o territory described

above has remained the same through my lifetime and Abel

Tait told me that it has remained the same since long

before the arrival of European people here. Abel Tait told

me that the members of the House of Luus had owned,

harvested and looked after the Xsi Lax Uu Andoo'o territory

from generation to generation. He told me that the

information on the Xsi Lax Uu Andoo'o territory was passed

on to him by the former Luus who is also deceased.

37. I have heard the Xsi Lax Ando'o territory described in the

Gitksan feast as being owned by the House of Luus.

Schedule 5.

944

__________________________________________________________________

E. GALAANHL GISST TERRITORY (Slamgeesh River)

38. I have obtained permission from Solomon Jack (Gwinin

Nitxw), a plaintiff in this action, to describe and speak

in respect of the Galaanhl Giist territory claimed by the

House of Gwinin Nitxw. This territory is located about

twenty-eight miles north of the village of Kuldo.

39. I was instructed about the Galaanhl Giist territory and its

boundary by the former Dawamuxw (my grandfather, Moses

Stevens), a member of the House of Dawamuxw; the former

Asgii (my grandmother, Esther Stevens); the former Diisxw

(my mother Mary Blackwater), the former Gaiyimlaxha (my

uncle, Charles Stevens), all of whom are members of the

House of Niist; and by the former Wii Minosik (my father,

Jimmy Blackwater), a member of the House of Wii Minosik,

all of whom are now deceased. They told me this territory

belongs to Gwinin Nitxw.

40. The boundary of the Xsi Galaanhl Giist territory can be

described as follows:

Starting at a point immediately south of the confluence of

Schedule 5.

945

__________________________________________________________________

Xsisga Maldit Angii'i (Tally Creek) and Xsan (Skeena

River), the boundary runs west along the height of land

south of Xsisga Mal'dit Angii'i (Tally Creek) then runs

northwest along the height of land north of Xsi Tsinihl

Denden (Canyon Creek) and Xsi Tsinihl Denden Ando'o (Vile

Creek) to the height of land at the head of Xsi Lax Uu

(Shilahou Creek), here the boundary runs northwest along

the height of land at the head of Xsi Lax Uu to Blackwater

Peak, here the boundary runs southeast along the height of

land north of Xsi Lax Uu (Shilahou Creek) to An Damhl (un-

named mountain on government maps), here the boundary runs

north then east along the height of land to Wil Skaiyip

(Martins Flats), here the boundary runs east to the height

of land west of Xsu Gwasak (upper Slamgeesh River), it then

runs north then east along the height of land west and

north of Xsu Gwasak (upper Slamgeesh River) to the height

of land west of Xsan (Skeena River), the boundary then runs

south along the height of land west of Xsan to Maxhla Lax

Uut (un-named mountain on government maps), from Maxhla Lax

Uut the boundary continues south to the Xsan (Skeena River)

west of Gitangas (Village un-named on government maps),

here the boundary runs west along the centre of Xsan

(Skeena River) back to the starting point.

Schedule 5.

946

__________________________________________________________________

41. Other Gitksan Head Chiefs have territories which border on

Niist's territory. To the north is Wii Minosik; to the

northeast is Wiigyet, to the east is Wii Minosik; to the

south is another area of Gwinin Nitxw; to the west is

Niist; and to the northwest is Luus. Wii Minosik also has

privileges along Xsugwa Sak, upper Slamgeesh River.

42. Geographical features on the boundary and within the

territory are:

LAKES

1.

2.

3.

Dam Galaanhl Giist

(Slamgeesh Lake)

Da'm Xsilgwit

(Damshilgwit)

Dam Dagaiy

(un-named on government maps)

Schedule 5.

947

__________________________________________________________________

4.

Dam Sililoo

(un-named on government maps)

RIVERS AND CREEKS

1.

2.

3.

4.

5.

6.

7.

Xsan

(Skeena River)

Xsi Galaanhl Giist

(Slamgeesh River, below Slamgeesh Lake)

Xsu Gwasak

(Slamgeesh River, above Slamgeesh Lake)

Xsisga Mal'dit Angii'i

(Tally Creek)

Xsigisga Maal't

(un-named on government maps)

Sxi Gisa Genx

(Kitlangus Creek)

Xsi Anmaiyhl Gwiikw

Schedule 5.

948

__________________________________________________________________

(un-named on government maps)

8.

9.

Xsi Luu Skihl Get

(un-named on government maps)

Xsi Luu Djekwit

(un-named on government maps)

10. Xsu Wil Skaiyip

(un-named on government maps)

11. Xsi Dam Xsilgwit

(un-named on government maps)

12. Xsi Ansa Biins

(un-named on government maps)

13. Xsi Lax Uu

(Shilahou Creek)

14. Xsigisk'amaaldim Ts'im Giist

(Shasiomal Creek)

Schedule 5.

949

__________________________________________________________________

15. Xsiwilp Laxs

(un-named on government maps)

16. Xsiwil'naa'aat'ixsxw

(un-named on government maps)

17. Xsiwil'minhitxwhl Gan

(un-named on government maps)

MOUNTAINS

1.

Am Bax Yuua

(Babiche Hill, locally known as S.O.B. Mountain)

2.

3.

4.

An Damhl

(un-named on government maps)

Miin Anhl Gil

(un-named on government maps)

An Maiyhl Gwiikw

(un-named on government maps)

Schedule 5.

950

__________________________________________________________________

5.

6.

7.

Galaanhl Xsi Gisa Genx

(un-named on government maps)

Sganisim Am Nax

(Part of Babiche Hill)

Maxhla Lax Uut

(un-named on government maps)

OTHER FEATURES

1.

2.

3.

Luu Unksit

(Fourth Cabin)

Anx'miigunt

(un-named on government maps, locally known as Strawberry

Flat)

Maxhla Sk'a "Maalt

(un-named on government maps)

Schedule 5.

951

__________________________________________________________________

4.

5.

6.

7.

8.

9.

Wisin Laxmihl

(un-named on government maps)

Gisa'an'maldit

(un-named on government maps)

Ganeexsim K'abalakw

(un-named on government maps)

Wil'Naa Aat'ixswxw

(un-named on government maps)

Lax'andilgan

(un-named on government maps)

Wil Sk'a "Malhl Wit

(un-named on government maps)

10. Tsilaasxum Wiigwalkw

(un-named on government maps)

11. Galaa'nhl Giist

(Fifth Cabin)

Schedule 5.

952

__________________________________________________________________

12. Lax Amaawx An Maiyhl Gwiikw

(un-named on government maps)

13. Andaahl Noxsim Txihlxw

(un-named on government maps)

14. Gitangwalkw

(un-named on government maps)

15. Gitangas

(Village, (un-named on government maps)

43. The boundary of the Galaanhl Giist territory described

above has remained the same through my lifetime and the

persons mentioned in paragraph 39 told me that it has

remained the same since long before the arrival of European

people here. They told me that members of the House of

Gwinin Nitxw had owned, harvested and looked after the

Galaanhl Giist territory from generation to generation.

44. I have heard the Galaanhl Giist territory described in the

Gitksan feast as being owned by the House of Gwinin Nitxw.

Schedule 5.

953

__________________________________________________________________

G. ANGODJUS TERRITORY (Poison Mountain)

45. I have obtained permission from Baskyelaxha (William

Blackwater), who is the hereditary chief of the House of

Baskyelaxha to describe and speak in respect of the

Angodjus territory claimed by the House of Baskyelaxha.

This territory is located about thirteen (13) miles north

of the Village of Kuldo.

46. I was instructed about the Angodjus territory by the former

Baskyelaxha; the former Gibeumgyet (Thomas Sampson), and

the former Diisxw (Mary Blackwater, my mother), both of

whom are members of the House of Niist, and both of whom

are now deceased. They pointed out the boundary and major

landmarks to me when we travelled within the Angodjus

territory.

They

told

me

this

territory

belongs

to

Baskyelaxha.

47. The boundary of the Angodjus territory can be described as

follows:

Starting on the west bank of the Xsan (Skeena River), about

Schedule 5.

954

__________________________________________________________________

a mile and half north of Xsa'anhlimox (O'Dwyer Creek), the

boundary runs west along the height of land north of

Xsa'anhlimox to cross Xsi Andap Matx (Canyon Creek upstream

of Canyon Lake) about seven miles upstream from Taax

Tsinihl Denden (Canyon Lake), the boundary then continues

northwest along the height of land south of Xsi Tsinihl

Denden Ando'o (Vile Creek) to Xsitxsmsem (Nass River, as

its confluence with Xsi Tsinihl Denden Ando'o, the boundary

then runs down the center of Xsitxemsem (Nass River) to Xsa

Galliixawit (Sallysout Creek). Here the boundary runs

southeast to the height of land south of Xsi Andap Matx

(Canyon Creek, west of Canyon Lake) and Xsi Bagaiyt

Xsiisigit (Poison Creek, to the Xsan (Skeena River) about a

mile south of Xsi Bagaiyt Xsiisigit, and then continues up

the center of Xsan (Skeena River) to where this description

began.

48. Other Gitksan Head Chiefs have territories which border on

Angodjus territory. To the north is Niist; to the east is

another area of Niist's' to the southeast is Gwinin Nitxw;

to the south is Wiigyet; to the west is Wii Goob'l.

49. Geographical features on the boundary and within the

Schedule 5.

955

__________________________________________________________________

territory are:

RIVERS AND CREEKS

1.

2.

Xsan

(Skeena River)

Xsitxemsem

(Nass River)

3.

4.

Xsa'anhlimox

(O'Dwyer Creek)

Xsi Bagaiyt Xsiisigit

(Poison Creek)

5.

6.

7.

Xsi Andap Matx

(Canyon Creek)

Xsi Galliixawit

(Sallysout Creek)

Xsi Tsinihl Denden Ando'o

(Vile Creek)

Schedule 5.

956

__________________________________________________________________

MOUNTAINS

1.

2.

3.

4.

Angodjus

(Poison Mountain)

Bagaiyt Xsiisigit

(un-named on government maps)

Miinhl Ganu'aloo

(un-named on government maps)

Andap Matx

(un-named on government maps)

50. The boundary of the Angodjus territory described above has

remained the same through my lifetime and the people

mentioned in paragraph 46 above, told me that it has

remained the same since long before the arrival of European

people here. They told me that the members of the House of

Baskyelaxha had owned, harvested and looked after the

Angodjus territory from generation to generation.

Schedule 5.

957

__________________________________________________________________

51. I have heard the Angodjus territory described in the

Gitksan feast as being owned by the House of Baskyelaxha.

H. XSI MIIN ANHL GII TERRITORY (Barker Creek)

52. I have obtained permission from Geel (Walter Harris), a

plaintiff in this action, to describe and speak in respect

of the Xsi Miin Anhl Gii territory claimed by the house of

Geel. This territory is located about eighty-five (85)

miles north of the Village of Kisgagaas.

53. I was instructed about the Xsi Miin Anhl Gil territory and

its boundary by the former Wii Minosik (James Blackwater,

my father), a member of the House of Wii Minosik, Kisgagaas

Lax Seel (Frog) Clan; my mother, the former Diisxw (Mary

Blackwater), a member of the House of Niist, Kisgagaas Lax

Gibuu (Wolf) Clan, both of whom are now deceased. They

pointed out the boundary and major landmarks to me when we

travelled within the Xsi Miin Anhl Gii territory. They told

me this territory belongs to Geel.

54. The boundary of the Xsi Miin Anhl Gii territory can be

Schedule 5.

958

__________________________________________________________________

described as follows:

Starting at the confluence of Xsi Miin Anhl Gii (Barker

Creek) and Xsan (Skeena River), the boundary runs north up

the center of Xsan (Skeena River) to the confluence of

Biernes Creek, here it runs west up the center of Biernes

Creek to its head, here it runs southwest along the height

of land between the Xsan (Skeena River) and Xsitxemsem

(Nass River) drainages to Dim Geiss Hanil Jok (Panorama

Mountain), here the boundary continues east along the

height of land south of the creeks draining east into the

Xsan (Skeena River) to Tsaphl Gwiikw (Groundhog Mountain),

it then runs south along the east bank of an un-named

tributary of Xsi Miin Anhl Gii (Barker Creek) to Xsi Miin

Anhl Gii, this point being about 7.5 miles upstream from

its confluence with Xsan (Skeena River), here it runs east

along the north bank of Xsi Miin Anhl Gii back to the

starting point.

55. Other Gitksan Head Chiefs have territories which border on

the Xsi Miin Anhl Gii territory. They are Kliiyem Lax Haa

to the west, Wii Minosik to the south and Niikyap and

Miluulak to the east. The Tahltan people own territories to

Schedule 5.

959

__________________________________________________________________

the north and northwest.

56. Geographical features on the boundary and within the

territory are:

RIVERS AND CREEKS

1.

2.

Xsan

(Skeena River)

Xsi Miin Anhl Gii

(Barker Creek)

MOUNTAINS

1.

2.

Dim Geiss Hanii Jok

(near Panorama Mountain)

Tsaphl Gwiikw

(Groundhog Mountain)

FEATURES

Gal Tsaphl Hasiiyeeks

Schedule 5.

960

__________________________________________________________________

(Jackson Flats)

57. The boundary of the Xsi Miin Anhl Gii territory described

above has remained the same through my lifetime and my

father and mother told me that it has remained the same

since long before the arrival of European people here. They

told me that the members of the House of Geel had owned,

harvested and looked after the Xsi Miin Anhl Gii territory

from generation to generation. They told me that the

information on the Xsi Miin Anhl Gii territory was passed

on to them by former Geels (Abraham Geel and Walter Geel)

who are now deceased.

58. I have heard the Xsi Miin Anhl Gii territory described in

the Gitksan feast as being owned by the House of Geel.

59. I know the boundary and the geographical points in the

territory by their Gitksan names. I know some of these by

their English names. I do not know all of the English

names, directions or mileages which appear in brackets

after the Gitksan names in this affidavit. I have been

advised by our legal counsel and verily believe that the

English names, directions or mileages have been placed in

Schedule 5.

961

__________________________________________________________________

the affidavit on their advice and with the assistance of

Neil Sterritt.

SWORN BEFORE ME at the Village

of Hazelton, Province of British Columbia

this 13th day of May, 1988.

_____________________________

_____________________

A Commissioner for taking

WALTER BLACKWATER

Affidavits in British Columbia

Schedule 5.

962

__________________________________________________________________

SCHEDULE 6.

Index

SUMMARIES OF TERRITORIAL ARGUMENTS

Page

Part 1. Gwinin Nitxw

785

801

824

(a) Plaintiff's Written Summary

(b) Province's Written Summary

(c) Canada's Written Summary

Part 2. Gyolgyet

828

845

853

(a) Plaintiff's Written Summary

(b) Province's Written Summary

(c) Canada's Written Summary

Part 3. Antgulilbix

858

873

881

(a) Plaintiff's Written Summary

(b) Province's Written Summary

(c) Canada's Written Summary

Part 4. Gidsdaywa

883

902

(a) Plaintiff's Written Summary

(b) Canada's Written Summary

Part 5. Spookw

(a) Plaintiff's Written Summary

906

909

913

915

918

922

(b) Province's Written Summary

(c) Canada's Written Summary

Part 6. Hagwilnegh

(a) Plaintiff's Written Summary

(b) Province's Written Summary

(c) Canada's Written Summary

Part 7. Samooh

924

927

942

(a) Plaintiff's Written Summary

(b) Province's Written Summary

(c) Canada's Written Summary

1. Gwinin Nitxw, (Galaanhl Giist (Slamgeesh Lake) Territory)

(a) Plaintiff's Written Summary

Walter Blackwater testified as to the Slamgeesh River

territory in his territorial affidavit, Exhibit 605. He was

given permission by Solomon Jack to do so. He was instructed

about this territory by his grandfather, Moses Stevens, the

former Dawamuxw, from the House of Dawamuxw; by his grandmother,

Esther Stevens, the former Asgii; by his mother, Mary

Blackwater, the former Diisxw; by his uncle Charles Stevens, the

former Gaiwimalxa; all of whom are members of the House of

Niist; and also by his father, Jimmy Blackwater, who was the

former Wii Minosik. All of these Chiefs are now deceased. They

told him that this territory belonged to Gwinin Nitxw. The

territorial boundary is described in paragraph 40 of his

affidavit.

Mr. Blackwater identified and described 43 geographic

features on the the boundary and within the territory of

Slamgeesh by their Gitksan names. Included within this territory

is the Gitksan village of Gitangas, named by Mary McKenzie in

the description of her adaawk and identified in his evidence by

James Morrison.

In his cross, Mr. Blackwater confirmed that the Slamgeesh

territory is owned by Gwinin Nitxw. He testified: ``He said that

was Solomon Jack's territory'' (p. 20).

Mr. Blackwater also explained the earlier mapping confusion

regarding the ownership of this territory, previously described

as belonging to his grandfather, Moses Stevens, Dawamukw.

I'll try to make it clear to you what went on on this

territory here. To begin with it all started with my grandmother

who is known as Esther Stevens. Asgii is her Gitksan name.

Esther and Gwinin Nitxw were just like sisters back then, and

she took Esther and her husband to be caretakers of this

territory as long as they want to be, and this is what happened.

Esther stayed there until -- as long as she could, and when she

passed on that territory was given back to Gwinin Nitxw and the

reason why I am telling you is because I want it made clear,

real clear to you, what that -- that this happened and this is

why that land returned back to Gwinin Nitxw, because it was his

to begin with or hers to begin with.

(p. 21).

He confirmed that Charles Stevens did not claim ownership

of the Slamgeesh territory (p. 21).

The Provincial Defendant has focused on this territory in

their Argument to challenge the reputation in the community as

to the boundaries and the ownership of the House Territories.

The evidence presented shows there was apparent confusion with

respect to this territory because of the distinction between

registered traplines and House territories. There are also other

rights within the Gitksan system which led to an apparent

confusion as to the ownership of the territory. These rights

have already been explained and include:

1.

2.

3.

Yugwilaatxw Rights (spousal);

Amniyetxw and House Ownership;

Use Rights and House Ownership.

The real issue raised by the Defendants is whether this

territory belongs to Dawamukw or Gwinin Nitxw. There is no

suggestion by the Defendants or in the evidence that it is not

Gitksan territory.

The 1982 statement of Art Kusick, the former Gwinin Nitxw,

explains the apparent confusion:

``We got this land from the Stikine way

before my grandfather's time. We owned

Blackwater area but they used it so long

they kept it.''

Ex. 759 (emphasis added)

Mr. Sterritt clearly explained to the Court why this

territory had earlier been referred to as Dawamukw's territory:

THE Court: But you have said the members of this House, some of

them, at least the leading ones, were born and raised up in the

Slamgeesh area?

A. No, that's not what I said. What I said was the grandchildren

of -- who are on one side are Wolf and on another side are Frog,

were born and raised up at well, Blackwater-Slamgeesh.

THE Court: Yes?

A. And that they're the ones who were very knowledgeable about

the ter ritories and are the ones who were informing me about

this relationship.

THE Court: Did I not understand correctly that the -- that

people from the House of Dawamuxw were there because of this

right acquired through marriage and in the Blackwater-Slamgeesh

area?

A. Yes. That was the husband.

THE Court: The husband, yes.

A. He was married to the Wolf side, who were parents of or

grandparents of Walter Blackwater and David Blackwater.

THE Court: Well, was there only the one person that was in that

area by way of -- by rights acquired through marriage?

A. Moses Stevens.

THE Court: Just Moses Stevens? And his descendants, where did

they live?

A. Well, Moses Stevens' children would be in the House of -- of

Niist.

THE Court: I see, all right.

A. His descendants -- well, his nephews and nieces or his

brothers and sisters would be in the House of Dawamuxw.

THE Court: Was this territory originally assigned to Dawamuxw

merely because of the presence on the land of Moses Stevens?

A. Yes.

THE Court: I see.

A. That was the reason.

N.J. Sterritt, V. 133, p. 8231

Thirteen dayd recalled the names during a field trip with

Nancy [Supernault], David [Blackwater] and Sterritt in 1986

(Tr.137, p.8606, ll.23-40). Blackwater had also forgotten the

name of Vile Creek which flowed out of the Canyon Lake area into

the Nass River (Tr.137, p.8608, 1.44 to p.8610, 1.28). In his

1988 affidavit, however, he deposed that he knew Vile Creek and

he had travelled it (Tr.137, p.8610, ll.29-35). Sterritt agreed

that as far as he had heard the tape, the transcript, Ex.745,

was a fair reproduction of the interview (Tr.138, p.8619, ll.4-

11). Mary Blackwater, Blackwater's mother and one of his

informants with respect to the Slamgeesh territory, died in 1974

(Tr.138, p.8634, ll.32-42; Ex.774, Tab 12, p.29 [d.1973]).

Charles Stephens died in the late 1960s (Tr.138, p.8637, ll.5-

8). Jimmy Blackwater died in 1966 (Tr.138, p.8637, ll.21-27;

Ex.774, Tab 12, p.29 [d.1964 or 1966]).

During the 1983 interview, Sterritt was seeking to revive

Blackwater's memory of both the boundary of Dawamuxw and the

boundary between Dawamuxw and Luus (Tr.138, p.8642, 1.11 to

p.8644, 1.42). As

a

result of Sterritt's interview with

Blackwater in 1983, Sterritt coloured in purple the territory of

Dawamuxw as shown on the topographical map, Ex.725 (Tr.138,

p.8645, ll.25-38). On the left-hand margin of Ex.725, Sterritt

identified the southern boundary of the Slamgeesh territory as

Dawamuxw (Tr.138, p.8645, ll.42-46). On the left-hand margin of

Ex.725, Sterritt printed a note: ``December 15, 1982, at Sam

Hope Feast. Walter Blackwater says Dawamuxw comes up creek to

main [branch] and Gwinin Nitxw on other side.'' Tr.138, p.8646,

ll.1-4; Ex.725 Sterritt also drew a small sketch illustrating

this information in the left-hand margin of Ex.725 (Tr.138,

p.8646, ll.7-10). That sketch on Ex.725 shows Dawamuxw as owning

territory on Slamgeesh Creek (Ex.725).

In 1982 Blackwater was consistent in his recollection with

the information he gave to Sterritt in May 1983 (Tr.138, p.8646,

ll.11-14). The informants upon which Blackwater relies in his

1988 affidavit (Ex.605) with respect to the territory which is

identified as Dawamuxw's territory on Ex.725 were all dead by

1982 (Tr.138, p.8646, ll.22-27). They cannot be the source of

information

between

1983

and

1988.

On

Ex.726,

another

topographical map, Sterritt has written on the right-hand margin

the word ``Dawamuxw'' identifying the territory of Dawamuxw

(Tr.138, p.8646, ll.33-42). The boundary of the Dawamuxw

territory as shown on Ex.726 reflects Sterritt's understanding

of what Blackwater was saying in 1983 (Tr.138, p.8646, 1.43 to

p.8647, 1.4). Sterritt agreed that the boundary annotations

which Sterritt put on Ex.725 and 726 were his interpretation of

what Blackwater was saying during the interview in 1983 (Tr.138,

p.8648, 1.42 to p.8649, 1.24). Sterritt indicated on Ex.725 and

726 the point on the map referred to during the interview in

1983 when Sterritt said at Ex.745, p.50: ``O.K and then um . . .

I'm wondering which way he comes down . . . where him and Luus

have the boundary . . . hmm . . . it's . . . must come down

through (unintelligible) Xsisga Mal'dit, eh?'' Tr.138, p.8650,

1.35-38. During the 1983 interview Sterritt referred Blackwater

to what other informants had said (Tr.138, p.8652, ll.3-40).

Sterritt also had a map there to assist in the 1983 interview

(Tr.138, p.8652, 1.37 to p.8655, 1.13). Sterritt utilized

information he received from Blackwater in 1983 and passed it

onto Marvin George who drew Ex.102 (Tr.138, p.8663, ll.16-18) on

which Dawamuxw was identified as claimant of the Slamgeesh

territory (Tr.138, p.8664, ll.4-10). Some changes were made to

the boundaries of the Slamgeesh territory between Ex.102 dated

October 1985 and Ex.5 dated May 1987. For example, Slamgeesh

became Niist-Gaiyemlaxhaa. That is the name of Charles Stephens,

the son of Moses Stephens who held the name Dawamuxw (Tr.138,

p.8664, ll.20-39). Subsequently as between Ex.5 and map 9A, the

Slamgeesh territory is now attributed to Gwinin Nitxw (Tr.138,

p.8665, ll.11-19). In preparing the Blackwater affidavit,

Ex.605, Sterritt followed his normal procedure of drafting the

affidavit, taking it to Blackwater, discussing it with him, and

producing subsequent drafts until Blackwater was satisfied with

the affidavit (Tr.138, p.8666, ll.12-15). In Sterritt's cross-

examination, a number of places were identified where Blackwater

in his interview in 1983 differed from his affidavit of 1988.

These are the differences between the interview in 1983 which

formed part of the material for Ex.102 and the affidavit,

Ex.605, of May 1988 which formed the basis of map 9A (Tr.138,

p.8666, ll.16-26). Blackwater and Sterritt had certain views

about territorial boundaries in May 1983 which found their way

into Ex.102 (Tr.138, p.8666, ll.35-42). Sterritt and Blackwater

had different views of the territorial boundaries in May 1988

than they had in May 1983 (Tr.138, p.8667, ll.22-27). In May

1983 the informants to which Blackwater refers in his 1988

affidavit (Ex.605) had passed away (Tr.138, p.8668, ll.9-12).

The Blackwater affidavit, Ex.605, was put forward as based upon

information Blackwater had received from deceased persons

(Tr.138, p.8668, ll.22-36). None of the informants to whom

Blackwater refers in his 1988 affidavit, Ex.605, was a Sterritt

informant (Tr.138, p.8668, ll.30-38). For every territorial

affidavit, the informants upon whom the deponent relied had to

be deceased at the time the affidavit was sworn (Tr.138, p.8669,

ll.42-46). The reason for the reliance upon deceased informants

was that information from living informants would be treated as

hearsay (Tr.138, p.8669, ll.5-26).

Sterritt did not know to what extent Blackwater might have

talked to other people but that was a process that all of the

hereditary chiefs liked to engage in, to go to other people to

confirm and verify what they know or what they understand

(Tr.138, p.8670, ll.36-44). Sterritt confirmed that he prepared

the first draft of the Blackwater affidavit and brought it to

Blackwater for review (Tr.138, p.8670, ll.36-37; p.8671, ll.42-

46). Sterritt made notes of his interview with Art Kusick, a

former Gwinin Nitxw, on November 2, 1982. Kusick stated: ``We

got this land from the Stikine way before my grandfather's time.

We owned Blackwater area but they used it so long they kept

it.'' Tr.139, p.8711, ll.25-29; Ex.759: Sterritt says Kusick is

speaking generally about the area to the east of the Skeena and

also about the Slamgeesh Lake territory. The first map Ex.102 of

October 1985 attributes the Slamgeesh area to Dawamuxw, code

3F25 (Tr.139, p.8712, ll.4-21). Art Kusick died about 1985

before Walter Blackwater explained to Sterritt that the

Slamgeesh area should be attributed to Gwinin Nitxw (Tr.139,

p.8713, 1.36 to p.8714, 1.10). Sterritt says that Walter

Blackwater ``not that long ago sat down and explained the whole

relation there and said that it was Gwinin Nitxw.'' (Tr.139,

p.8713, ll.15-18). On November 18, 1982, Sterritt interviewed

Jack. On the tape, which was played in Court, Solomon Jack said

that Gwinin Nitxw traps to the east side of Slamgeesh and that

Dawamuxw is on the west side. Sterritt continued: ``NJS:

Dawamuxw has a lot of ground in here. SJ: Might be him. NJS: I

think he was.'' Tr.139, p.8714, ll.44-47 The tape continued as

follows:

``NJS: Okay. So the boundary would be where the Slamgeesh

entered the Skeena, is that right? He wouldn't go anywhere up

the Slamgeesh? SJ: No. NJS: So you would have the watershed of

Gitangus and all the creeks between there and the Skeena? SJ:

M'hm. NJS: Okay. Now, that's good.'' Tr.139, p.8716, ll.32-42

Jack states that Gwinin Nitxw traps to the east side of the

Slamgeesh and Dawamuxw to the west side and that Gwinin Nitxw

does not go west (Tr.139, p.8717, ll.10-13). Jack's evidence is

consistent with the diagram which Sterritt drew on Ex.725 based

on Walter Blackwater's information at Sam Hope's feast on

December 15, 1982 (Tr.139, p.8717, ll.14-28). In 1986 Nancy

Supernault told Sterritt that the Slamgeesh area belonged to her

father, Charles Stephens, Gaiyemlaxhaa (Tr.139, p.8719, 1.11 to

p.8720, 1.15). On February 16, 1988, Supernault told Sterritt

again that Slamgeesh was her father's territory (Tr.139, p.8720,

1.32 to p.8722, 1.13). On Ex.5 the Slamgeesh territory is

attributed to Niist, Gaiyemlaxhaa, in accordance with Nancy

Supernault's advice to Sterritt. Sterritt noted the interview

with Solomon Jack on November 18, 1982 in his field notes. He

recorded Jack as stating that Gwinin Nitxw traps to the east

side of Slamgeesh and Moses Stephens to the west side. Sterritt

recorded this accurately. (Tr.141, p.8922, ll.19-42; Ex.774, Tab

4, p.132). Sterritt also noted information received from Peter

Muldoe and Albert Tait on July 4, 1983. Albert Tait said that

``Luus owns from fifth cabin, just for the winter, along

Shilahou to Xsi lax uui, otherwise Dawamuxw owns Shilalou.''

Tr.141, p.8930, 1.45 to p.8931, 1.2 Sterritt says that this is

consistent with Walter Blackwater's information about where Luus

is at the end of Shilahou or Xsi lax uu (Tr.141, p.8931, ll.4-

7). However Blackwater's 1988 affidavit, Ex.605, Section F,

stated that Shilahou is in the Gwinin Nitxw territory (Ex.605,

p.13, Rivers and Creeks Item 13).

Sterritt noted information received from Walter Blackwater

that ``Dawamuukw got Galaanhl Giist by Xsiisxw, it used to

belong to Gwinin Nitxw.'' That was the basis for Dawamukw's

ownership of the Galaanhl Giist territory. Dawamukw got the

territory by virtue of a peace settlement. That is what

Blackwater told Sterritt at the time (Tr.141, p.8935, ll.19-38;

Ex.774, Tab 12, p.28). On a topographic survey data sheet dated

April 2, 1979, Mike Morrell recorded information received from

David Blackwater identifying an alpine area in the Slamgeesh

Range about five miles east of Slamgeesh Lake known as Wulam in

the territory of Dawamuxw (Tr.142, p.8962, ll.24-39; Ex.774, Tab

22, p.4-213). On the next topographic data sheet there is

another note by Morrell on April 2, 1979 with informants

identified as David Blackwater and Bobby Stephens. Lakandilgan,

an area on the Slamgeesh River, belongs to Dawamuxw (Tr.142,

p.8962, 1.40 to p.8963, 1.18; Ex.774, Tab 22, p.4-214). This

area is also referred to as Number 29 on Ex.725 and Ex.725A as

Dawamuwx but in Ex.605 as Gwinin Nitxw (Ex.605, para. 42, p.13,

Other Features, Item 8). On April 7, 1979, Morrell also recorded

information from David Blackwater that a lake called Da'm Dakai

about two miles upstream northeast of Damsilgwit in the

Slamgeesh River system was in the territory of Dawamuxw (Tr.142,

p.8963, 1.1-3; Ex.774, Tab 22, p.4-217). This feature is also

referred to as Number 32 in Ex.725 and 725A but in Ex.605 as

being in Gwinin Nitxw (Ex.605, para. 42, p.12, Lakes, Item 3).

On April 1, 1979, Morrell noted information from David

Blackwater and Bobby Stephens that a creek called Xsugwasak

which entered Slamgeesh River about one mile below the lake is

in Dawamuxw territory (Tr.142, p.8963, ll.12-18; Ex.774, Tab 22,

p.4-218). This feature is referred to as Number 33 on Ex.725 and

725A and in Ex.605 (Ex.605, para. 42, p.13, Rivers and Creeks,

Item 3). Other Sterritt notes identifying the Slamgeesh

territory as owned by Dawamuxw are the two pages recorded

following Sterritt's interview with Blackwater on May 22, 1983.

These notes identify Dawamuxw's boundary at Slamgeesh and

Babiche Hill (Skanism am nax) in Dawamuxw's territory (Tr.142,

p.8963, ll.30-33; Ex.774, Tab 22, p.4-220 and 4-221). The latter

feature is Number 77 on Ex.725 and 725A and is also in Ex.605

(Ex.605, para. 42, p.13, Mountains, Item 6). On April 2, 1979

Morrell recorded further information from David Blackwater.

Slamgeesh Lake and River, known as G'alaanhlgiist, are in

Dawamuxw territory. Morrell records that a cabin was built here

by Moses Stephens before 1914. That cabin burned down and the

present one was built by Charles Stephens. David Blackwater

lived here with Moses Stephens and his wife until they moved to

Kispiox about 1943 (Tr.142, p.8963, ll.34-40; Ex.774, Tab 22,

p.4-226). These features are items 26 and 84 on Ex.725 and 725A

and in Ex.605F (Ex.605F, para. 42, p.12, Lakes, Item 1; p.13,

Rivers and Creeks, Item 2). On November 18, 1982 Sterritt noted

information received from Solomon Jack that the Slamgeesh River

formed the boundary between Gwinin Nitxw territory on the east

and Dawamuxw territory on the west (Tr.142, p.8965, 1.39 to

p.8966, 1.2; Ex.774, Tab 22, p.3-77). In the upper right-hand

corner of the data sheet is a sketch map showing Moses Stephens

to the west of what appears to be lower Slamgeesh River and

Gwinin Nitxw to the east (Ex.774, Tab 22, p.3-77).

Walter

Blackwater

Cross-examination.

On

his

cross-

examination, Blackwater agreed that a creek, Xsu Wil Skaiyip

flows down to Dam Silgwit, to Slamgeesh and to the Skeena

(Ex.605A, p.28, ll.20-35). Dam Xsilgwit and Xsu Wil Skaiyip are

two geographical features said to be within the Slamgeesh

territory claimed by Gwinin Nitxw in Blackwater's 1988 affidavit

(Ex.605, para. 42). Blackwater testified that Moses Stephens

lived at Slamgeesh Lake with Blackwater's grandmother (Ex.605A,

p.20, ll.1-17). Moses Stephens, whose chief's name was Dawamuxw,

was

Blackwater's

grandfather

(Ex.605A,

p.20,

ll.19-22).

Blackwater said that Dawamuxw did not own the territory at

Slamgeesh; it was owned by Gwinin Nitxw (Ex.605A, p.20, ll.23-

45). Gwinin Nitxw is Kisegegas Wolf Clan and Dawamuxw is

Fireweed Clan (Ex.650A, p.21, ll.2-7). Blackwater explained that

his grandmother Esther Stephens and Gwinin Nitxw were just like

sisters. Gwinin Nitxw permitted Esther and her husband to be

caretakers of the territory as long as they wanted to be. Esther

stayed there as long as she could and when she passed on, the

territory was given back to Gwinin Nitxw (Ex.605A, p.21, ll.8-

22). Moses and Esther Stephens' son was Charles Stephens whose

chief's name was Gaiyemlaxhaa. Blackwater stated that Stephens

did not claim ownership of the Slamgeesh territory (Ex.650A,

p.21,

ll.23-43).

The

map

attached

to

Robert

Stephens'

interrogatories affidavit sworn August 7, 1986 showing the Wii

Minosik territory at Blackwater Lake identifies the Slamgeesh

area as being claimed by Dawamuxw (Ex.605-2). Blackwater did not

agree that Dawamuxw claims the Slamgeesh area (Ex.605A, p.35,

ll.23-27). The Wii Minosik (Robert Stevens) interrogatories map

shows the boundary between the Blackwater/Damdochax Lake

territory (Wii Minosik) and the Slamgeesh territory (Dawamuxw)

running along the height of land (Ex.605-2). Exhibits 102 and 5

show this boundary in this location. Blackwater also agreed on

his cross-examination that ``on one side of the boundary all the

creeks go to the Nass and the other side of the boundary all the

creeks go to the Skeena.'' Ex.605A, p.31, ll.4-7 It is submitted

that the Blackwater Lake/Slamgeesh boundary description in

Blackwater's 1988 affidavit (Ex.605, para. 40) and the boundary

on map 9A do not follow the height of land and are inconsistent

with Ex.650-2, Ex.102 and Ex.5 and with Blackwater's evidence on

cross-examination. Marvin George referred to

a

``drafting

error'' in this area (Tr.217, p.15773, ll.18-43). That does not

explain the difference between Blackwater's metes and boundary

description

and

In

his

answer

to

interrogatory 59(c) attached to his affidavit sworn August 21,

1986, Solomon Jack stated: ``See map which is attached as

Schedule ``B''. It sets out the approximate boundary of my

territory.'' (Ex.420; Ex.605A, p.41, ll.40-47). The map produced

with Jack's interrogatories identifies the Slamgeesh territory

as claimed by Dawamuxw. Blackwater did not agree with that

attribution (Ex.420; Ex.605A, p.41, ll.35-39). In his cross-

examination, Blackwater did not recall the mountain known as

Maxhla Lax Uut, referred to as being in the Slamgeesh territory

on p.13, No. 7 under Mountains in his 1988 affidavit, Ex.605

(Ex.605A, p.43, ll.24-30).

Solomon Jack Cross-examination. Jack testified that he had

trapped on only part of the Slamgeesh territory presently

claimed by Gwinin Nitxw (Ex.597A, p.5, ll.22-30). That is part

of the Slamgeesh area (along the Skeena) from approximately a

mile above the Sustut River to the Slamgeesh River (Ex.597A,

p.7, ll.1-15). Jack had only been on the southern part of the

Slamgeesh territory (Ex.597A, p.5, ll.22-43). He went ``from Xsi

Naah T'aa'da down to Slamgeesh.'' (Ex.597A, p.5, ll.44-47; p.6,

26-34; p.7, ll.11-15). It is submitted that this description is

consistent with the boundaries of the Slamgeesh territory on

Ex.420 but not with the changed boundaries on map 9A. The map 9A

boundaries for northern Gwinin Nitxw extend west of the

Slamgeesh. According to Jack's evidence, he went only as far as

the east bank of the Slamgeesh. It is submitted that the

description of the area where Jack trapped appears to be the

same as the area identified on the sketch which Sterritt drew on

the left-hand margin of Ex.725 based upon information received

from Walter Blackwater in 1982. That sketch shows Gwinin Nitxw

territory east of the lower Slamgeesh River with Dawamuxw to the

west (Ex.725). Jack stated in answer to interrogatory 59(e)

attached to his affidavit sworn January 30, 1987 with respect to

the Gwinin Nitxw territory as follows: ``We lost part of our

territory through my House allowing someone else to use it

because the territory was so large. It was then registered under

white man's law. The white man's registration caused a lot of

problems because the territory is not supposed to go to the

father's son, it's supposed to stay with the clan.'' Ex.597A,

p.27, ll.35-41 Jack was referring to the Slamgeesh Lake area in

this passage (Ex.597A, p.28, ll.25-32). Jack heard that Moses

Stephens registered the territory. Gwinin Nitxw lost the

territory through the White man's law (Ex.597A, p.28, 1.45 to

p.29, 1.5). Jack said that Moses Stephens' father came from the

Gwinin Nitxw House and he wanted to trap on the Gwinin Nitxw

trapline. They told him to use Slamgeesh Lake. The area was so

big that Gwinin Nitxw couldn't use it all the time. Moses

Stephens then registered his trapline in that area. Accordingly,

Jack thought that under the White law, Gwinin Nitxw had lost the

territory

(Ex.597A,

p.29,

ll.15-32).

Jack's

territorial

affidavit, Ex.597, does not refer to the Slamgeesh territory. It

also does not refer to the Slamgeesh territory as a Gwinin Nitxw

territory bordering the area described in the affidavit, Ex.597.

Jack's interrogatories map, Ex.420, shows the Gwinin Nitxw

territory as extending north of the Skeena River covering only

the southwestern corner of the present Slamgeesh territory. The

boundary as shown on Ex.420, in this area, follows the lower

part of the Slamgeesh River north and then cuts northeast as the

Slamgeesh River turns west (Ex.420). The rest of the Slamgeesh

territory is attributed to Dawamuxw (Ex.420). Several of the

geographical features noted on Ex.725 and 725A are identified as

being in the Dawamuxw territory on the interrogatories map,

Ex.420. Conclusions. Blackwater's territorial affidavit evidence

as to the ownership of the Slamgeesh territory and as to the

location of the boundaries of the territory are contradicted by

his earlier statements to Neil Sterritt in 1982 and 1983 as well

as by information provided by David Blackwater (Niist) and

Robert Stephens (Wii Minosik) to Mike Morrell in April 1979. The

Blackwater information is contradicted also by Solomon Jack's

(Gwinin Nitxw) affidavit in 1986 to which were attached answers

and interrogatories stating that Gwinin Nitxw had lost part of

the Slamgeesh territory. The answers referred to an attached map

of Gwinin Nitxw territory showing part of the Slamgeesh area

owned by Gwinin Nitxw and the remainder owned by Dawamuxw.

Jack's interview with Sterritt on November 18, 1982 also

conflicts with the Blackwater evidence as does Albert Tait's

(Delgamuukw) information on July 4, 1983. All the maps referred

to above conflict with Black water's affidavit and the map 9A

boundary evidence. David Blackwater (Niist) and Albert Tait

(Delgamuukw) are chiefs very high in the Gitksan hierarchy.

Their conflicting evidence, it is submitted, corroborates the

conclusion that little, if any, credence can be given to the

Blackwater affidavit evidence. It is submitted that David

Blackwater's conflicting evidence is particularly damaging.

Blackwater lived with Moses Stephens and his wife at Slamgeesh.

It is unlikely that there was any doubt in Stephens' or

Blackwater's mind who claimed Slamgeesh. The explanations for

the change in attribution from Dawamuxw to Gaiyamlaxhaa to

Gwinin Nitxw are conflicting and confusing. There appears to

have been no discussion about this with current Dawamuxw

members. Various witnesses and informants attribute Moses

Stephens'

presence

at

Slamgeesh

to

Yugwilaat;

a

peace

settlement; friendship between Esther Stephens and Gwinin Nitxw;

Moses Stephens' father's membership in Gwinin Nitxw. The process

by which the affidavit was prepared is unreliable because

Sterritt drafted the affidavit based on information he received

from other sources and brought it to Blackwater for review. It

is

submitted

that

Sterritt's

interview

techniques

are

illustrated by the 1983 interview in which he suggested boundary

locations to Blackwater and referred to other informants. The

only informants referred to in the affidavit are deceased

informants whereas there may be other living informants who

provided this information to Sterritt and Blackwater. It is

submitted that Sterritt's topographic maps and data sheets

disclose that the boundary and other geographical information

contained in the Blackwater 1988 affidavit probably came from

living informants other than Walter Blackwater. The affidavit

information therefore does not comply with the reputation

evidence criteria, is inadmissible and in any event is

unreliable. Several high chiefs believed in 1979, 1982, 1983 and

1986 that Dawamuxw owned the Slamgeesh area. By 1982 all

informants to which Blackwater refers in his 1988 affidavit were

deceased. They could provide no further new information to him.

Nevertheless, Blackwater changed his views as to the ownership

of the Slamgeesh territory about 1988. Sterritt testified that

Blackwater had participated in a field trip to the Slamgeesh

area with Sterritt, David Blackwater and Nancy Supernault in

1986, but he did not advise Sterritt of the change in ownership

until 1988. Sterritt also testified that many of the chiefs

discussed their territories with other living persons although

he could not say whether Walter Blackwater had done this or to

whom he might have spoken. It is submitted, therefore that the

Slamgeesh area information in the Blackwater territorial

affidavit, as well as the remainder of the affidavit, is

inadmissible and if admissible, unreliable. There is no evidence

upon which the Slamgeesh area ownership and boundaries as shown

on map 9A can be based. As with other territories, once the

Slamgeesh territory information becomes unreliable, it destroys

the evidence as to territorial boundaries of neighbouring

territories. The entire process by which the Blackwater

affidavit was prepared renders unreliable all the evidence in

the affidavit relating to the territories, thereby eliminating a

large part of the evidence for the territorial boundaries in the

northwest part of the Claim Area.

(c) Canada's Written Summary.

This territory lies approximately 30 miles northeast of

Kuldo in the north central part of the Gitksan claim area. Major

features of the area include the Slamgeesh and Skeena Rivers and

Shilahou and Kitlangas Creeks. The territory is described in the

affidavit of Walter Blackwater (Exhibit 605, Section F). The

Plaintiffs' submissions on this area are found at pages 173 to

178-8 of Volume VI of their final argument.

CONCLUSION 2

There is evidence before the Court that this territory was

used for hunting and/or trapping at some point prior to 1956.

There is insufficient evidence to establish when the territory

was in fact last used for those purposes, but there is evidence

of whites using the area in the late 1930's and after 1978.

These non-Indian users did not encounter Indians using this

territory. Therefore, the Plaintiffs have not established that

this territory has been continuously used for hunting and

trapping. It is probable in fact that this territory has been

abandoned for at least 30 or 40 years.

EVIDENCE 3

Solomon Jack, who gave evidence concerning the adjacent

Gwinin Nitxw territory to the south, testified that he had been

on part of the Slamgeesh River territory, although he had never

``trapped on the whole works.'' (Exhibit 597A, p. 5). Mr. Jack

testified that he had been from Xsi Na'ahl T'aa down to the

Slamgeesh River and that he used to trap some beaver there

(Exhibit 597A, pp. 5 and 25-6). He further described this area

as ``from a mile above the Sustut River to the Slamgeesh'' but

also on the telegraph line and the old mountie trail (Exhibit

597A, p. 7). Mr. Jack appears to have last trapped in this

northern area approximately 1940 (Exhibit 597A, p. 36).

4.

Walter Blackwater testified that when he was living at

Damdochax Lake, Moses Stevens was living at Slamgeesh Lake

(Galaanhl Giist) with Walter Blackwater's grandmother (Exhibit

605A, p. 20). Walter Blackwater last lived at Damdochax Lake in

1956 (Exhibit 605A, p. 19). Victor Giraud also provided some

evidence concerning Moses Stevens.

5. Victor Giraud, a former trapper and federal fisheries

officer, testified that he and Lou Gelley bought a trapline from

Jim Hodder located on Yukon telegraph line from third to sixth

cabin (Exhibit 1214A, p. 4 and Exhibit 1214C, p. 72). Fifth

cabin is located near Slamgeesh Lake (Exhibit 1214-40; Sterritt

testimony, v. 120, p. 7488; Steciw testimony, v. 250, p. 18484).

Gelley and Giraud trapped the line for two years in the late

1930's (Exhibit 1214A, p. 4). Lou Gelley trapped the northern

part of the line from fourth to fifth cabin while Giraud trapped

generally below that (Exhibit 1214A, p. 6, 1214D, p. 130).

6.

Mr. Giraud stated that they frequently encountered Moses

Stevens who was living in a cabin near second cabin on the Yukon

telegraph line, south of where they were trapping (Exhibit

1214A, pp. 6-7). Mr. Giraud described Moses Stevens as an ``old

gentleman'' (Exhibit 1214D, pp. 127-9). The genealogy of

Dawamuxw states that Moses Stevens was born in 1861 and died in

1971 (Exhibit 853(4), p. 1). Given this information, it is

unlikely that Mr. Stevens was living or trapping in the

Slamgeesh Lake area after the mid to late 1930's.

7.

Walter Blackwater testified that the Department of Indian

Affairs bought the registered trapline which covers part of this

territory for him in 1951 (Exhibit 605A, p. 46). The description

of this trapline includes the western half of the Slamgeesh

River territory of Gwinin Nitxw (see Exhibit 605A-3). Mr.

Blackwater testified with respect to this trapline that ``I

don't hardly go over there'' (Exhibit 605A, p. 46).

8.

Igor Steciw testified that he made a number of trips into

the Slamgeesh Lake area in 1978 and after. He testified that he

went to the Slamgeesh Lake area to clean up a guide outfitter's

cabin that he had purchased and freshen up the local trails for

the purpose of guiding hunters (v. 250, p. 18482; v. 251, p.

18579-80). He testified that the Yukon telegraph trail was

virtually unrecognizable. It was an ``alder thicket'' (v. 251,

p. 18536).

9.

When Mr. Steciw was in the area in 1978, 1979, 1984 and

1985, he saw no sign of other current human activity (v. 250,

pp. 18483-4, 18486, and 18490-2). When Mr. Steciw was in the

area he found the ruins of two old cabins at Dam Shilgwit Lake

and old blazes on trees (v. 250, pp. 18484-5). It is clear from

Mr. Steciw's evidence that the Slamgeesh River area has not been

used for trapping, at least from the late 1970's and probably

from much earlier.

Part 2. Gyolgyet (Mary McKenzie)

(a) Plaintiff's Written Summary.

Gyologyet's territory is a big area and each of the Chiefs

of her House share a portion of the territory. The Chiefs of her

House are Madeek, Hla'oxs, Kwamoon and Gadilo'o (V. 4, p. 276).

Mrs. Mary McKenzie, the present holder of the name of

Gyologyet, testified that Kwamoon's territory was described in a

feast in 1942 (V.5, p.324). Gyologyet's territory was described

in feasts and most recently was described at the funeral feast

of Marion Jack in 1959 (V. 7, p. 417 and V. 8, p.440). There has

never been a feast where any Chief has ever raised a question as

to whether Gyologyet's territory or any part of it does not

belong to Gyologyet (V. 8, p. 440).

Mary McKenzie received the name of Gyologyet in 1959 at a

pole-raising feast. Before that she held the Chief name of

Kwamoon, which had been formerly held by Peter Robinson, who

died in 1935 (V. 3, p. 163). Gyologyet was originally from

Gitangasx and more recently from the village of Kuldo (V. 3, p.

184). When at Kuldo each of the Chiefs original had their own

House (V. 3, p. 193). Ggologyet's totem pole is still at Kuldo

because that is where the strength of the House is (V. 7, p.

406).

The location of Gyologyet's territory is described at V.3,

p. 186 and 194 -195.

The House of Gyologyet protected and maintained the

boundaries of the territory:

Because there are witnesses there, the Head Chief is there

to witness it and another thing too, where our territory is,

there are other territories that he has to go through to get to

our territory. So this has to be explained in the feasting that

the people up there, my neighbours, our neighbours around our

territory if they see him they know where his destination is,

where he is going to go and trap.

(V.5, p. 322).

In 1978 Albert Tait talked to Mrs. McKenzie specifically

about the mountains, creeks and rivers on Gyologyet's territory

(V. 10, pp. 651 - 562). In 1983 Albert Tait told Mrs. McKenzie

that he wanted to leave her with everything he knew and

understood of his territory from his father Luus (V. 10, p.

598).

Mrs. McKenzie described the importance of the adaawk as it

relates to her knowledge of her territory:

Because the adaawk tells, in a feast hall, that who are the

holders of fishing places, creeks and mountains that belong to

each House of the Chiefs, where they get food, like berry

picking, they have -- they tell the owner and the location and

the feast House, so, through this, this is how I have my

knowledge now is by attending the feasting of any Chief, even if

it is my own feasting, I hear the Chiefs repeat or tell of the

adaawk of theirs and ours. This is the importance of the

feasting, that these adaawk's are told.

(V. 3 p. 190).

Gyologyet's territory is located three miles from old Kuldo

(V. 4, p. 232). Mrs. McKenzie consults with the other Chiefs of

her House with regard to others using Gyologyet's territory (V.

6, p. 372).

Mrs. McKenzie has never been out on the territory of

Gyologyet, but her husband has been there and she is familiar

with the names. She spent her time on her husband's territory

(V. 7, p. 426). It is a common occurrence for wives to spend

time on the hunting and trapping grounds of their husbands.

Mrs. McKenzie's husband has trapped on the territory and so

has another member of the House, Marianne Jack (V. 8, p. 445).

Marianne trapped on this territory until 1958, the year before

she died (V. 8, p. 443).

Mrs. McKenzie has maintained contact or been kept informed

about what's happening on the territory in the last 20 years.

The neighbours protect the territory. If they see a trespasser

they report it. Neighbours like Delgamuukw and Djogaslee have

gone through her territory to get to their own (V. 8, p. 447).

Marianne Jack was allowed to go through the territory

because she knew it and she blazed trails for traplines. Mary

McKenzie's son, Bennie, and her grandson, Johnny, have decided

to go out on the territory (V. 8, p. 450).

Mary McKenzie knows the adaawk of the territory and told

the adaawk of her House. One of the reasons the adaawk of the

territory is told is to protect the territory and when the

Gitksan Chiefs tell the adaawk of their territory they are

really saying that this is Gitksan land and not white man's land

and the other Chiefs sitting there agree. This has been the case

for as long as Mary McKenzie has been going to feasts. She has

told her adaawk at feasts and the head Chief of the House is the

proper person to tell the adaawk. The boundaries of the

territory have not changed despite the introduction of the

trapline registration system (V. 9, p. 536).

Mrs. McKenzie identified Exhibit 7 as a map of the

Gyologyet territory.

Richard Benson was given permission by Mrs. McKenzie to

describe and speak in respect of the Gyologyet territories. Mr.

Benson was a Gitksan Chief who held the name of Gla Ee'yiw. He

was a member of the House of Luus, Lax Gibuu (Wolf) Clan from

the village of Kuldo. Mr. Benson described the Gyologyet

territory in a territorial affidavit marked as Exhibit 661-2 in

his commission evidence. The Gyologyet territory is divided into

three parts and each part was described separately in the

affidavit.

Mr. Benson was born in 1909 and at the time of his giving

evidence he was 78 years old. His mother's name was An Hlo'o in

the House of Luus. Her brother was Abel Tait, Luus, (X. 661, p.

3). Mr. Benson's mother was raised by Marianne Jack. Mr. Benson

lived at Meziadan Lake until 1935 when he got married at which

time he moved to Glen Vowell and went out trapping with his aunt

Marianne Jack (p. 8).

In 1935 Mr. Benson trapped with Marianne Jack on the

territories of Gyologyet. At that time he also travelled with

her husband, Tommy Jack, as well as Jasper Jack and David Jack.

They travelled to the territory by dog team and toboggan along

the ice on the river. Mr. Benson described the route that they

follow to their camping point on Gyologyet's territory at Win

Skahl Guuhl, which is a canyon on the Nass River (X. 661, p.21).

i.

Xsagan Gaxda (Kuldo Creek) Territory

This territory is located three miles from the village of

Kuldo and is the most southerly area of the territory of the

House of Gyologyet. Mr. Benson was instructed about this

territory by Abel Tait, the former Luus, by Philip Brown, a

member of the House of Gutginuxw. Philip Brown pointed out the

boundary points and major landmarks to Mr. Benson when they

travelled in the territory.

Mr. Benson identified and named in Gitksan eight land

features including Andap Matx, Gologet Mountain and Ansa Gan

Djap, which is Kuldo Mountain. He testified that to the west of

this territory is the territory of Angulilbix.

In cross-examination Mr. Benson corrected his affidavit to

say that the territory of Gyologyet is on both sides of Xsagan

Gaksda and that the boundary is on the mountains on the left

side (p. 148). Mr. Benson learned about the territory at Kuldo

Creek from Mathias Wesley and not from Philip Brown, however,

Philip Brown told him that the territory belonged to Gyologyet

(p.150).

The Provincial Defendants focus on the southern territory

of Gyolugyet and the apparent discrepancy in the evidence

between Mary McKenzie and Richard Benson.

Mary McKenzie described her territory with reference to

certain geographic place names. The first creek that she

referred to was Kuldo Creek or Xsagan Gaksda.

M. McKenzie, V. 7, p. 414

She went on to explain that all of these creeks, including

Kuldo Creek, are inside her territory.

Mrs. McKenzie explained that the territory goes with the

Adaawk. She did not describe the Adaawk in detail in her

evidence. However, the Court subsequently heard the detail of

the Adaawk and it's connection to the territory in the evidence

of Art Mathews, Jr. Mrs. McKenzie confirmed that when her

grandmother taught her the Adaawk, she described the territory

by the creeks and the mountains. These were the same creek and

mountains described by Mrs. McKenzie in her own evidence. (M.

McKenzie, V. 9, pp. 531-532).

Mrs. McKenzie went on the explain that this very large

territory was actually divided up between three sub-Chiefs

within the House. Hlo'ox utilized and managed the territory

around Kuldo Creek. Madeek utilized the territory around Xsa'an

Lo'op. Kwamoon utilized the territory around Sankisoots.

Therefore, although this territory is very large, it was sub-

divided between the three Chiefs. This is reflected in Exhibit

646-9A.

M. McKenzie, V. 7, p. 416

The Provincial Defendants in there Argument make a major

issue of the boundary at Kuldo Creek. The affidavit of Mr.

Benson appears to be different from his evidence. Mr. George did

not rely on the affidavit but relied on the evidence to map

Exhibit 646-9A. Mr. Sterritt explained his misunderstanding with

respect to the mapping of the boundary at Kuldo Creek:

``Q . . . Now, Mr. Sterritt, if you'll look to the southern

portion of the territory, and I would ask you if you see any

adjustment in the boundary referred -- in the southern portion

as a result of information that came to you after that map was

prepared?

A. Yes. Here is where I was having -- personally was having a

great deal of difficulty in getting this straight, partly

because of the name of the creek, Xsagan Gaksea . . . Which is

Kuldoe Creek. It was -- as you go up that creek and swing around

to the left, that's what's known on the map as Kuldoe Creek, and

it's what I talked about this morning in relation to Mary

Johnson's, the map of Antgulibix and Tsibasaa, Dam Ansa Angwas .

. . Richard Benson had clarified that there was a name change at

the junction downstream from that river -- or from that creek

when it entered Xsagan Gaksea . . . In any event, I was having

trouble determining where the boundary of Gyolugyet went in this

area, and subsequently, during the commission of Richard Benson,

he identified that the boundary continued along the height of

land south of Kuldoe Creek, down to the junction of Kuldoe Creek

and what is locally known as Little Kuldoe Creek or Gwiis Xsagan

Gaksea . . . And that's under the name Mauus . . . on the map.

Q. That is on the map that's in front of you?

A. Yes. So there is a change to go approximately through the

name Mauus and on down to the junction of Little Kuldoe Creek

and Big Kuldoe Creek.

Q. And did that change conform to the evidence of Richard

Benson?

A. Yes, it did.

Q. All right.

A. And the other change is that the line should go through the

lake at the head of Kuldoe Creek, which I described this

morning.

Q. All right. Apart from the evidence of Richard Benson on

commission, was there any other information about that change

which you had received from another source?

A. Yes. From Pete Muldoe and from Jeff Harris Senior, and those

notes are in the spring of 1988.

Q. Now, if you'll just step off the witness stand for a moment

and look at overlay map 9-A, please. Look at the black line.

Does the black line on 9-A reflect the changes about which you

were informed?

A. Yes. The area that we are talking about is very close to New

Kuldoe, and this black line of 9-A corresponds to the changes

that I'm talking about, as well as the change in Gyolugyet's

territory to exclude Xsu Wii Luu Dagwigit. . . . at the head of

Taylor River.''

N. J. Sterritt, V. 126, pp. 7773-7774

Mr. Sterritt clearly delineated the distinctions in the

mapping process. The evidence of Mr. Benson and Mrs. McKenzie is

not inconsistent on this point. Mrs. McKenzie indicated that

Kuldoe Creek was one of the principal creeks within her

territory. Mr. Benson clarified in his evidence on cross-

examination that the boundary followed the height of land to the

west of Kuldoe Creek. This is the evidence which was relied upon

by Mr. George in depicting the territory on Exhibit 646-9A. It

is important at this point to note that Mrs. McKenzie gave her

evidence in May 1987. Mr. Benson, now deceased, gave his

evidence in November and December 1987. Mr. Sterritt gave his

evidence on this point on September 14, 1988.

The Defendants did not cross-examine Mr. Jeff Harris Sr.

who testified as to the territory at Mauus at Kuldoe Creek on

this boundary. Mr. Harris' affidavit is consistent with the

evidence of Mrs. McKenzie, Mr. Benson and Mr. Sterritt. In fact,

the Provincial Defendant raised nothing in cross-examination

with respect to the Kuldoe Creek territory of Mauus.

J. Harris, V. 158, pp. 10085-10086

It is significant that Mr. Sterritt obtained information on

this boundary from Jeff Harris Sr. This was known to the

Defendants when they cross-examined Mr. Harris.

N. J. Sterritt, V. 126, p. 7774

Mrs. McKenzie identified the territory of Gyologyet as

mapped on Exhibit 5 in the proceedings.

After 1944, Mr. Benson trapped with Abel Tait, Luus, on

this territory. They were given permission by Gyologyet to trap

there. Mr. Benson was told the names of this territory by

Marianne Jack (X.661, p. 36). He was also told by Peter

Robinson, who held the name of Kwamoon. Mr. Benson trapped for

several years on this territory. First in the late fall and then

in the spring. While on the territory they stayed at a cabin in

a ``great big open place'' called Luu Lax Mihlit (p. 37). He was

also there with Steve Morrison, Charlie Hillis, Pete Muldoe and

Jeff Harris (p. 38). On occasion he stayed at his uncle's House

in Kuldo and then went over trapping in the Gyologyet territory.

The last time that Mr. Benson trapped on this territory was in

1951. He also hunted on this territory. He hunted for moose and

goat (p. 49-50). There were trails on the territory which had

been built by Gyologyet's relatives and when they went through

they cleared away the wind falls. They kept the trails up by

blazing them as well (p. 51).

ii. Xsana Lo'op (Shanalope Creek) Territory

This is the second territory owned by Gyologyet and it is

located northwest of Gologet Mountain, 30 miles northwest of the

village of Kuldo.

Mr. Benson, who testified to this territory

in Exhibit 2 was instructed about the territory by the former

Kwamoon of the House of Gyologyet, Mary Ann Jack.

Mary Ann pointed out the boundary locations and landmarks

when they travelled in the territory and said that this belonged

to Gyologyet and Kwamoon. The territory of Delgamuukw is located

to the south and west of this territory. In his affidavit, Mr.

Benson gave the Gitksan meaning to the Gitksan boundary

locations which he identified.

Mr. Benson testified that Xsa'an Lo'op is Gyologyet's

territory (X. 661, p. 185). He named the main mountain on the

western side of the territory being Kologet Mountain.

iii. Xsihl Guugan (Taylor River) Territory

This territory belonging to Gyologyet is located 45 miles

northwest of the village of Kuldo on the north side of the Nass

River. Mr. Benson, who testified to this territory in his

affidavit as well, was told about the territory by Mary Ann

Jack, the former Kwamoon. She pointed out the boundary points

and landmarks on the territory. Mr. Benson pointed out the creek

called in Gitksan, Xsan Yam, which on the maps is Sanyan Creek.

He also identified a canyon on the Nass River near Mike Creek

called Win Skahl Guuhl. To the north of the Gyologyet territory

Mr. Benson identified the House of Niist as being the owner of

that territory. Skiik'm Lax Haa and Djogaslee own the

territories to the west.

Neil Sterritt, in cross examination explained the difference

between the draft interrogatory map and the boundary as depicted

on Exhibit 646-9A. With reference to the interrogatory map he

stated as follows:

``Q . . . Now, Mr. Sterritt, I just want you to look at this map

and ask you if you received subsequent information from a

hereditary chief or hereditary chiefs, which led you to conclude

there was a change in the boundary as it's described in this

map?

A. Yes. I had always been told that the creek, Xsihl Guugan . .

. which appears on topographic maps as Taylor River, that that

belonged to Gyolugyet. And the extrapolation that I made was

that the territory of Gyolugyet went to the very headwaters of

the Taylor River.

Q. And that's what is shown here on this exhibit?

A. Yes.

Q. Did subsequent information you received alter that boundary?

A. Yes, it did. I had been told about a creek named Xsu Wii Luu

Dagwigit . . . . A creek named Xsu Wii Luu Dagwigit was

somewhere in the north end of this territory, and David Gunanoot

actually first described that creek to me as a trail route that

he had taken from the Bell-Irving River over to the Upper Nass

River. And in -- I eventually located where that was, and in

doing that, I also had discussions, subsequently, that explained

that Xsu Wii Luu Dagwigit was the territory of the House of

Niist.

Q. And from whom did you obtain those instructions?

A. Walter Blackwater.

Q. Niist is the hereditary chief who has territory north of

Gyolugyet?

A. And east.

Q. All right.

A. Yes. Also, Richard Benson and I talked to Daisy Olsen, she

was the daughter of Alfred Shanoss . . . . and she mentioned

that -- that creek. And Abel Brown, I believe, mentioned that

creek as being -- he had mentioned it, I think he mentioned that

it was part of that -- of the territory of Peter Shanoss, but

I'm not sure if he said that, but certainly the others did.

Q. And Peter Shanoss was in the House of Niist?

A. Yes.

Q. Now, in -- was there a change in the boundary in the northern

portion of Gyolugyet's territory that borders with Niist?

A. Yes. The boundary followed the height of land south of Xsu

Wii Luu Dagwigit until it crossed where -- just below where Xsu

Wii Luu Dagwigit entered the main Taylor River.

Q. All right. And can you tell us at about what time it was that

you received the information that led to that change?

A. In 1987.

N. J. Sterritt, V. 126, pp. 7771-7772

This change from the interrogatory map is reflected in

Exhibit 646-9A. It is apparent from the description given by Mr.

Sterritt that the reason for the discrepancy between the

interrogatory map and Exhibit 646-9A at this point is as a

result of a misunderstanding by Mr. Sterritt in which he

extrapolated with respect to the Taylor River belonging to

Gyolugyet. This mistake was rectified and is reflected in the

final map.

Richard Benson testified that he hunted and trapped

throughout all of the three Gyologyet territories during the

30's and 40's and he travelled on the territory with Mary Ann

Jack and this is how he learned about the territory.

In 1935 Mr. Benson trapped with Marianne Jack in the

northern territory at Xsihl Guugan (Taylor River). At this time

he was shown the trail and told where to find the traps and to

go trapping. Marianne Jack told him where to trap and he trapped

up the Taylor river on the north side of the Nass (X. 661, p.

23). He trapped up the right side of the river and Marianne

trapped up the left side going north. On this occasion Marianne

told Mr. Benson about the names of the places and the boundary

of the territory. She also told him the stories of the territory

(p. 25). On that occasion they hunted for moose for food and

they saw no non-Indian people. (p. 26).

Mr. Benson testified that in 1935 he walked about four days

up the right side of Taylor River with Jasper Jack, camping

along the way. And they went a further day north to look around

and then they returned to pick up the furs on the way back. (X.

661, p. 110-111). They met Marianne Jack and her husband, Tommy,

back at the canyon camp. Mr. Benson's estimate of the distance

he travelled was about thirty-five miles. He testified that

Marianne told her that this territory belonged to Gyologyet and

``she told all the stories in all the trail.'' (p. 112). She

also said that Gyologyet had so much territory there because he

had so many relatives (p. 112).

Mr. Benson was cross-examined about his knowledge of who

owned the territory on the north side of Xsihl Guugan today and

he replied it was Charlie Sampson:

That's Niist territory . . . Marianne and Charlie Sampson

himself, Niist himself, (told him). That's when Niist told me

that that's when I was trapping with Marianne at T'am Nihl

Janda. You see, we camped together there. That's when he started

telling me

(X. 661, p. 115).

Mr. Benson went on to identify the lake known as T'am

Saabaaya as belonging to Alfred Saanoos, who is also in the

House of Niist. He heard this from his wife, who with her mother

and Saanoos, spent a winter there on the Charlie Sampson (Niist)

side (p.116).

When questioned further about the places in Gyologyet's

territory, Mr. Benson replied:

That's true, you know, because, you see, I travel all the

way through these place. Nobody just -- what I travel through,

that's what I am telling. You see, I walk through, I trap

through here. I walk all the way through and I know all these

place and these mountains and you see, what they told me, that's

what I really like to tell, you see, because I supposed to tell

the truth. That's what you said when I began. Nothing but the

truth. That's what -- that's what I am doing . . . I am telling

what I already been -- I walk through and I see these creeks and

I walk through there and I know where they are and I know who it

belongs to. They tell me right beginning before I start even my

uncle. Well, they had a story what spread out, you know, about

Gyologyet and they start telling me, but I can't remember them

all. But the only thing that I remember, that's when I go on it

and trap through there and I really been many times on it. And

just that the one I really know, that's what I am trying to tell

the truth about it and nothing but the truth. That's true.

That's what I am -- I'm doing the best I could.

(b) Province's Written Summary

The territory claimed by the House of Gyolugyet is one of

the most extensive, a huge area reaching from just northwest of

the Kuldo Indian Reserve to the head of the Taylor River north

of the Nass River, including the watersheds of Kuldo Creek,

Shanalope Creek and the Taylor River. Marvin George prepared map

9A based upon information from various sources (Tr.217,

pp.15767-15769). He did not refer to McKenzie's trial testimony.

He did refer however to the territorial affidavit of Richard

Benson Ex.661E (Tr.217, pp.15768, 1.25 to p.15769, 1.12). The

Benson affidavit, sworn November 16, 1987, refers to the

boundaries for the three Gyolugyet territories, Kuldo Creek

(Section A), Shanalope Creek (Section B), and the Taylor River

(Section C). Benson testified on commission in Hazelton on

November 24, 25, 26 and December 7, 1987. Mary McKenzie.

McKenzie identified the Gyolugyet territorial boundaries on Ex.5

as being accurate (Tr.7, p.410, 1.26 to p.411, 1.10). Counsel

for the Plaintiffs also confirmed that Ex.5 showed the

boundaries of the Plaintiffs' territories (Tr.7, p.410, ll.26-

32). The boundaries on Ex.5 differ from those on Ex.646-9A,

particularly in the Kuldo Creek area. McKenzie identified a

large scale map of the territory, Ex.7, as being accurate (Tr.7,

p.415, 1.30 to p.416, 1.1). Exhibit 7 bears the initials

``MFG/NJS'' in the lower right-hand corner. According to

McKenzie, Sterritt drew the map (Tr.7, p.416, ll.42-47). The

Ex.7 boundaries are the same as Ex.5. McKenzie stated that she

was very familiar with certain geographic features in the claim

area especially after her husband had made two trips there

(Tr.7, p.414, ll.13-18). Her husband had drawn a map for her

(Tr.7, p.426, ll.18-20). She referred to seven creeks and some

other geographic features on the territory (Tr.7, p.414, 1.21 to

p.415, 1.24).

McKenzie said that she had learned the names of the places

on the territory from her grandmother and her mother. The names

had also been described in the feasts (Tr.7, p.426, ll.2-9).

McKenzie had never been to the Gyolugyet claim area (Tr.7,

p.426, ll.16-18; Tr.9, p.549, ll.6-8). Because the ``feeling''

of the people in Court was not like that of the Gitksan,

McKenzie could not give any further details from the adaawk

about the claim area (Tr.9, p.531, 1.23 to p.532, 1.2). McKenzie

swore an affidavit on January 23, 1987 exhibiting answers to

Interrogatories. At that time, she knew where the boundaries of

her territory were but she said that she had learned more about

the boundaries since January 1987 (Tr.9, p.538, 11.12-35). She

learned there was an overlap in a couple of places, one being on

Djogaslee and the other being one of the Blackwaters (Tr.9,

p.538, 1. 38 to p.539, 1.6). McKenzie's Interrogatories map

(Ex.661I) was noted as showing the ``approximate boundaries of

her territory'' (Tr.9, p.537, ll.20-29). The Ex.661I boundaries

differ from Ex.5, Ex.7 and Ex.646-9A, particularly in the Kuldo

Creek and Upper Taylor River areas.

Counsel for the Province referred to the creeks and other

geographical features which McKenzie had mentioned. McKenzie

said that those were all the place names that her grandmother

had told her (Tr.9, p.539, 1.9 to p.540, 1.38). McKenzie said

that the creeks are all in the adaawk. The chief's territories

are described by reference to the creek. When the names of the

creeks are called out, ``we exactly know who-what chief's

territory is in that whole territory'' (Tr.9, p.540, 1.39 to

p.541, 1.20). The Nass River does not belong to Gyolugyet

although the House's alleged territory extends north and south

of the river (Tr.9, p.541, 1.39 to p.542, 1.7). McKenzie agreed

that Chris Harris would have been knowledgeable about the House

of Gyolugyet and the territory because he was in Luus' House and

he was Chief Luus at that time (Tr.9, p.547, ll.21-30). The

Gyolugyet boundaries on Ex.661I, Ex.5, Ex.7 and Ex.646-9A all

differ from the Gyolugyet boundaries on the Chris Harris map,

Ex.22.

McKenzie stated that she went to Albert Tait to obtain

information about the Gyolugyet adaawk and the territory (Tr.9,

p.521, ll.3-28). Tait was not in the House of Gyolugyet; he was

from another clan (Tr.9, p.522,11.18-21). McKenzie wrote notes

of conversations with Albert Tait in her diary (Ex.11). An entry

dated May 1978 read ``Albert Tait came to my House, he wanted me

to know the mountains, creeks and rivers on Gyolugyet's land''

(Tr.10, p.561, ll.36-44). In another entry dated November 1983,

she wrote that Albert Tait came to her House again. He told her

that he had been up to view the Gyolugyet territory with Neil

Sterritt Jr. The head chiefs had asked Sterritt to prepare maps

of these areas, including traplines. Tait said that he would

help Sterritt make the maps. ``He said he mentioned to me

already before the names of chiefs and creeks on our territory''

(Tr.10, p.562, ll.7-30). McKenzie was vague about the location

of Win skahl guuhl where Wallace Danes had registered a trapline

without her permission (Tr.9, p.549, ll.2-37). McKenzie also

could not locate her registered trapline on Ex.7 (Tr.10, p.569,

1.26 to p.570, 1.10).

Richard Benson. The Kuldo Creek territory boundaries

described in Benson's territorial affidavit (Ex.661E) differ

from the boundaries in Ex.5 and Ex.7 identified as correct by

McKenzie and in Ex.661I. The boundaries on Ex.646-9A also do not

follow the description in the Benson's territorial affidavit.

For example, the boundary of the Kuldo Creek territory as set

out in paragraph 5 of the Benson affidavit differs from the

boundary as shown in map 9A. In Benson's affidavit paragraph 5

the description reads ``The boundary runs up Xsagan Gaxda (lower

Kuldo Creek) and up Xsi Ansa Angwas (upper Kuldo Creek) to the

lake called Dam ansa Angwas (un-named on government map).''

Ex.661E, para. 5 The southern boundary of the Kuldo Creek

territory on map 9A is significantly different from that

boundary description.

Statements in paragraph 4 of the Benson affidavit are

false. The affidavit says that Benson was instructed about the

Kuldo Creek territory by Abel Tait and Philip Brown. Benson

agreed that he did not learn about the territory from Abel Tait

or Philip Brown and that paragraph 4 was wrong (Ex.661, p.147,

ll.6-23). Paragraph 5 is also false. The boundary of the Kuldo

Creek territory does not run up Kuldo Creek. According to

Benson, it goes along the mountains along the left side of the

creek. (Ex.661, p.147, 1.37 to p.148, 1.12). Benson further

agreed that paragraph 8 of the affidavit is false since Philip

Brown had never told Benson anything about the Kuldo Creek

territory boundaries (Ex.661, p.149, 1.16 to p.150, 1.21).

Benson did not recognize McKenzie's Interroga tories map

(Ex.661I) but he said that Sterritt had shown him a map of the

Gyolugyet territories. At that time Benson was placing the names

of the creeks on the map (Ex.661, p.148, ll.26-43; p.201, 1.23

to p.203, 1.10).

Neil Sterritt. Sterritt stated that he obtained information

about the Gyolugyet territory from Peter Muldoe, Richard Benson,

Albert Tait, David Gunanoot, Walter Blackwater, Chris Harris and

Steve Morrison. He extrapolated from this information to draw

the upper Taylor River boundaries. He provided the information

to Marvin George who drew Ex.661I, the McKenzie Interrogatories

map (Tr.126, p.7771, ll.1-29). Sterritt said that he received

further

information

which

led

to

a

change

in

his

``extrapolated'' boundaries in the upper Taylor River area. On

Ex.661I the boundary went to the very headwaters of the Taylor

River (Tr.126, p.7771, 1.34 to p.7772, 1.2). He changed this

boundary in 1987 after receiving information from Walter

Blackwater, Abel Brown, Richard Benson and Daisy Olsen between

January and June 1987 (Tr.126, p.7772, 1.3 to p.7773, 1.12).

This change is reflected on Ex.7, Ex.5 (Tr.126, p.7772, 1.47 to

p.7773, 1.7) and Ex.646-9A (Tr.126, p.7774, ll.24-28). Sterritt

further said that the Kuldo Creek territory boundary on Ex.5

(and Ex.7) had been subsequently changed to conform to Benson's

evidence on his commission (Tr.126, p.7773, 1.19 to p.7774,

1.8). That change resulted in the Ex.646-9A boundary. Another

change was that the line should go through the lake at the head

of Kuldo Creek. Sterritt obtained information about that latter

change from Peter Muldoe and Jeff Harris Sr. in the spring 1988

(Tr.126, p.7774, ll.10-18). Walter Wilson (Djogaslee) owns a

trapline including the first big lake south of the Nass River

and west of Xsan gehl Tsuuts (Sanskisoot Creek). He derived

these rights from Daniel Skawill. Sterritt received this

information from Albert Tait. These rights are not recorded in

the Gyolugyet territory on map 9A (Tr.141, p.8933, 1.46 to

p.8934, 1.36; Ex.774, Tab 11, p.22). Sterritt's Land Use

Reference Data sheets show Kuldo Creek as the boundary between

Gyolugyet and Mauus (Ex.724A, Item 202). That is inconsistent

with Benson's testimony and Ex.646-9A. It is consistent with

Benson's affidavit (Ex.661E), Ex.661I, Ex.7 and Ex.5. This

appears to be the information which Sterritt used when drafting

Benson's affidavit and which he gave to Marvin George to draw

Ex.661I, Ex.5 and Ex.7.

Walter

Wilson.

Wilson

signed

a

registered

trapline

application for a trapline that extends south across the Nass

River into Gyolugyet territory (Ex.602A, p.21, ll.10-18). He

said that his great uncle Daniel Skawill had a cabin at An Tsok

on the east bank of the Kwinageese River near its confluence

with the Nass River (Ex.602A, p.32, ll.25-46). That location is

in the Gyolugyet claim area on Ex.646-9A. He also said that

Gyolugyet did not own An Tsok since it was a common area

(Ex.602A, p.72, ll.31-36).

Conclusions

Ex.646-9A conflicts with the Kuldo Creek claim area

boundary description in the Benson affidavit, Ex.661E. Exhibit

646-9A conflicts also with Ex.661I, McKenzie's Interrogatories

map. It conflicts as well with Ex.5 and Ex.7 which were

identified by McKenzie as showing the correct boundaries of her

House's claim area. Sterritt obtained conflicting information

from several hereditary chiefs, some of whom were living at the

date of Benson's affidavit. That information conflicted with

Benson's testimony as to the Kuldo Creek territory and the

Taylor River territory boundaries. Sterritt relied upon this

accumulated conflicting information from sources not identified

in the Benson affidavit. Several of these chiefs were not

available for cross-examination on this issue. Sterritt probably

followed his standard procedure when drafting the Benson

affidavit. He probably prepared a first draft including a list

of geographical features for review by Benson, as he did with

other affiants. The Benson affidavit is therefore probably based

upon information received from Sterritt's informants not

identified in the affidavit. The boundary description also

conflicts with other sworn testimony of Mary McKenzie, the Chief

of the House claiming the territory. It cannot be regarded as

reputation evidence in these circumstances. It is submitted also

that Ex.646-9A is based largely upon Sterritt's working maps

information

which

he

accumulated

over

the

years,

his

extrapolations and rationalization of conflicting information.

The fact that there are several false statements in the Benson

affidavit furthermore supports the conclusion that either those

are not the words of Richard Benson or his evidence is

unreliable, or both. The affidavit is not reliable. The Ex.646-

9A Gyolugyet boundaries therefore have no basis in reliable

evidence. The unreliability of the Gyolugyet boundary evidence

adversely affects the boundary evidence for all neighbouring

House territories.

(c) Canada's Written Summary

GYOLOGYET -- XSAGAN GAXDA (KULDO CREEK) TERRITORY

INTRODUCTION 1:

This territory is located approximately 5 miles northwest

of Kuldo. This area is described in the affidavit of Richard

Benson (Exhibit 661-EW, Section A). The Plaintiffs' submissions

on this area are found at pages 152 to 157 of Volume VI of their

final argument.

CONCLUSION 2:

There is evidence that this territory was used for hunting

and trapping between 1935 and 1951. It is clear that the

territory has not been used since 1951, or over 30 years, which

constitutes proof of abandonment.

3. At page 150 of Volume VI of their final argument, the

Plaintiffs' submissions refer to the evidence of Mary McKenzie

concerning this territory. Mrs. McKenzie's testimony concerning

trips her husband Ben McKenzie and Marian Jack made to this

territory are inadmissible hearsay. Mrs. McKenzie stated that

she had never been on her own territory (v. 7, p. 426). Mrs.

McKenzie stated that she went to her husband's trapline because

he was prepared for trapping, he had cabins on the territory,

that trapline was closer to Gitanmaax, and as a result ``our

territory, it hasn't been used'' (v. 7, p. 426).

4. Richard Benson testified that after 1944 he trapped with Abel

Tait on this territory (Exhibit 661, pp. 35-6). He trapped on

the territory for several years, both in the late fall and in

the spring (Exhibit 661, p. 37). While they were trapping they

camped at an ``big open place'' called Luu Lax Mihlit (Exhibit

661, p. 37). In addition to Abel Tait, Mr. Benson was on the

territory with Steve Morrison, Charlie Hillis, Pete Muldoe and

Jeff Harris (Exhibit 661, p. 38). Mr. Benson trapped fisher,

marten, beaver and mink on the territory (Exhibit 661, pp. 37,

39). While trapping he went up to the head of Kuldo Creek

(Exhibit 661, p. 37).

5. Mr. Benson last trapped on this territory in 1951 because fur

prices collapsed (Exhibit 661, pp. 39-40, 184). 1951 was in fact

the last year that Mr. Benson trapped anywhere.

6. It appears that when Mr. Benson was on this territory

trapping, he also hunted for moose and goat (Exhibit 661, pp.

49-50). Mr. Benson maintained the trails while he was on the

territory (Exhibit 661, p. 51).

GYOLOGYET -- XSANA LO'OP (SHANALOPE CREEK) TERRITORY

INTRODUCTION 1:

This territory is located northwest of Gyologyet's Kuldo

Creek territory along the Nass River. Major features include

Shanalope, Sanskisoot, Santolle and Mike Creeks, and the

Kwinageese River. The territory is described in the affidavit of

Richard Benson (Exhibit 661-E, Section B). The Plaintiffs'

submissions concerning the area are found at page 158 of Volume

VI of their final argument.

CONCLUSION 2:

There is no evidence before the Court that this territory

was used or occupied by the Plaintiffs. Therefore, the

Plaintiffs have not established that they have any aboriginal

rights to this area.

EVIDENCE 3:

Although Richard Benson swore an affidavit concerning this

territory, it appears that he never hunted or trapped on it

(Exhibit 661, pp. 144-5). It appears that Richard Benson gained

his knowledge about this territory when he was travelling in the

area and going up to the Taylor River territory of Gyologyet. He

testified that he met Joe Danes, the former Gyologyet, at a

place called Win Skahl Guuhl in 1936 (Exhibit 661, p. 28). Win

Skahl Guuhl is a canyon on the Nass River near Mike Creek

(Exhibit 661E, p. 5). Benson testified that the Joe Danes party

was trapping in Gyologyet's territory which, given the location

of the camp, was probably the Shanalope Creek territory. Joe

Danes was said to have a cabin at Xsa'an Lo'op (Exhibit 661, pp.

112 and 129). Joe Danes died in 1934 (Exhibit 853 (19), p. 1).

4.

Walter Wilson testified that there was a place near the

junction of the Kwinageese and Nass Rivers, on the east bank of

the Kwinageese, where trappers from three clans would go in the

fall to catch fish for their winter supply (Exhibit 602A, p.

32). This place was called An Tsok. Mr. Wilson also testified

that he flew to that area two years ago and found that the

cabins there had all collapsed (Exhibit 602A, p. 32-3). There is

no evidence that Wilson was at this area when it was actually

being used for the purpose he described.

GYOLOGYET -- XSIHL GUUGAN (TAYLOR RIVER) TERRITORY

INTRODUCTION 1:

This territory is located along the Nass River in the

northwest corner of the Gitksan claim area. Major features of

the area include the Nass and Taylor Rivers. The territory was

described in the affidavit of Richard Benson (Exhibit 661-E,

Section C). The Plaintiffs' submissions on this area are found

at pages 158 to 163 of Volume VI of their final argument.

CONCLUSION 2:

The only evidence of use of this territory is Richard

Benson's testimony about his one trip into the area in 1935.

This evidence is insufficient to establish that the Plaintiffs

have continuously used and/or occupied this territory.

3.

Richard Benson testified that he trapped along the Taylor

River in 1935 with Marianne, Tommy, and Jasper Jack (Exhibit

661, p. 19). Benson trapped the right side of the Taylor River

travelling north with Jasper Jack for four days (Exhibit 661,

pp. 110-1). Marianne and Tommy Jack trapped the other side of

the creek and Benson estimated that he travelled 35 miles from

the mouth of the Taylor River (Exhibit 661, p. 111). On this

trip, the Benson party hunted moose for food and trapped beaver

and marten (Exhibit 661, pp. 26 and 107-8). Mr. Benson testified

this was the only trip he ever made to the Taylor River

territory (Exhibit 661, p. 114).

Part 3. Antgulilbix -- South, (Andamhl)

(a) The Plaintiff's Written Summary

Mary Johnson testified to this territory in her evidence at

trial.

Territorial name and territory are referred to in the

telling of the ancient adaawk. The Gitksan trace their ownership

rights to these adaawk. This more evident in the evidence of

Mary Johnson.

Mrs. Johnson told the adaawk of the one-horn goat. In this

adaawk, the people found a great fireweed and called it

G'ilhaast and this is the name of the Fireweed Clan, Giskaast,

today. (V. 11, p. 675). The one-horn goat was taken as a crest

of the Giskaast Clan and according to Mrs. Johnson was used by

her uncle, George Williams, previously the holder of Tsibessa.

In telling this adaawk, Mrs. Johnson explained how when the

people left T'am Lax Amit in ancient times Antgulilbix split off

from Hax Bagwootxw and the Clan formed a village on a mountain

behind:

Glen Vowell Village and they call this mountain ``where the

moon shines on'', that's andamhl.

M. Johnson, (V. 11, p. 678).

Mrs. Johnson described the name of Andamhl as the ``ancient

name of that mountain'' (V. 11, p. 678). The village on that

mountain in the adaawk was called Wilt Gallii Bax. The House of

Antgulilbix and Tsibesaa owns the territory where Wilt Gallii

Bax is located (V. 11, p. 679). The ancient village of Wilt

Gallii Bax where they hunted for groundhogs is on the mountain

called Andamhl (p. 679).

In the adaawk, Mrs. Johnson gave the names of two features

of her territory at Andamhl. In this way her House asserts its

ownership and authority over the territory in respect of other

Chiefs and Houses.

Mrs. Johnson's great great grandmother and her grandmother,

Edith Gawa, told her about the village of Wilt Gallii Bax:

They said it was a village and they also got feast Houses

there, they said, and they used to invite the village --

surrounding villages for the feast, for their feast.

M. Johnson, V. 11, p. 680, 1. 19-22

This, they said, was in very ancient times. Mrs. Johnson

also went with her grandmother through the very small trails to

where the village used to stand on the mountain (V. 11, p.680).

Mrs. Johnson has heard the adaawk of the one-horn goat

given in the feast (V. 11, p. 699). This adaawk was given

publicly so that the other Chiefs could hear them:

. . .so they can understand and they never forget because, like

Gyolugyet says, the Indians are not supposed to use any other

crest besides your own crest. That's why they tell the adaawk in

the feast House and they know, everybody knows whose crests they

are.

M. Johnson, V. 11, p. 700

This adaawk is known within the Gitksan community and she

was taught it in particular by her grandmother and her great

great grandmother. Similarly other adaawk, including that of the

grouse, and Madiik, are known among the Gitksan because their

grandmothers and uncles recounted them (V. 11, p. 700).

The histories of the crests and the relationship of those

crests to the territories underly the territorial ownership of

Antguililbix's House. Public telling of the adaawk and community

knowledge are essential aspects of the adaawk.

Crests and territory are also referred to in the songs of

the Gitksan. Mrs. Johnson spoke about the importance of songs to

the Gitksan:

Well, they are so important because it's about their

hunting ground and all their crests and all the names, all the

crests are their power, everything is their power . . . Dax

Gyat. It will be passed from generation to generation. It won't

be forgotten until the end of the world.

M. Johnson, V. 12, p. 763, 1. 1 - 11

The song sung by Mrs. Johnson in Court was a very ancient song:

It's about the ancient history that they will tell another

Chief, then the Chief will compose the song about their adaawk.

V. 12, p. 769

The fishing site of Antgulilbix at Gwin Disygenn was

located in close proximity to her House hunting territory. There

used to be a smokeHouse located at this fishing site. It used to

be located at the point where the road turns into Glen Vowell.

(p. 771).

Mrs. Johnson identified the Andamhl site as being a

mountain behind Glen Vowell village (V. 12, p. 780). Mrs.

Johnson identified Exhibit 17-9-A as a map of Antgulilbix's

territory owned by her House. (p. 780-81). On the map she

pointed out the mountain called andamhl and the creek called Xsu

Wil Gall Bax (p. 781). Mrs. Johnson also identified the creek of

Xsan Max Hlo'o as a boundary. (p. 786). On the other side of

that boundary the territory belonged to Ma'uus.

The presence of House members on the territory is an

element pertaining to the House's knowledge of the territory.

Mrs. Johnson said that her great great grandmother used cedar

bark for dye from the territory. Her aunt Emily Latz hunted and

trapped on the mountain in the territory (p. 792). She was told

about the territory from her great great grandmother. She was

told that it passed from generation to generation, like the

rest, like all the mountains (p. 792).

As to the ownership of this territory, Mrs. Johnson said,

they call this mountain ``Antgulilbix's hunting ground'' (V. 13,

p. 794).

Mrs. Johnson used to pick blueberries behind the vegetable

farm where a little creek runs backwards and this is how the

creek got its name ``Wilt Gallii Bax'' (V. 13, p. 795).

Mrs. Johnson testified as well that her brother Stanley of

the same House, trapped on this mountain and hunted groundhogs

on the top of the mountain (V. 13, p. 796).

Mary Johnson took the name of Antgulilbix in 1982 when her

aunt, Emily Latz, died (V. 10, p. 624). One of the crests of her

House was carved on a pole belonging to Antgulilbix. It is a

pole in Kixpiox with the crest of a whale. Mrs. Johnson told of

the adaawk belonging to the House and how Antgulilbix received

the crest of the whale. This adaawk also tells the history of

Gwin Lax Nisims (V. 12, p. 747).

Mrs. Johnson also testified that the names of people in her

House are the names referred to in the adaawk. For example, the

history of the man Gyadim Lax Tsinaast, is the name for a

clearing on the mountain in the territory at Andamhl. The story

attached to the name is the story of a man who lived in the

hills and who was very ugly. And when he arrived at a feast they

threw a blanket over him. They then made a mask of him, which

was very funny. (V. 13, pp. 792-793).

Mrs. Johnson testified on cross-examination that she was

told a few days before testifying that the territory on the

other side belonged to Jonathan Johnson, Ma'uus (p. 787). Her

grandfather never mentioned this territory to her, but she

believed what Jonathan Johnson said (p. 790). Mrs. Johnson also

identified another large creek on her territory called Xsu Wil

Masxwit (p. 790). That creek flows from the mountain on the

territory called Wil Masxwit.

Mrs. Johnson was cross-examined about the difference

between her evidence and her interrogatory affidavit, August 7,

1986, and it was suggested that she was not aware that Ma'uus'

boundary was different and she replied:

No. I was told by my grandmother and Aunty Emily, later,

that our boundary is -- is Xsan Max Hlo'o. That's the creek and

we didn't claim Ma'uus territory.

(V. 13, p. 843).

Later in her cross, Mrs. Johnson verified:

No, we didn't say we owned the whole mountain, we said that

-- that there is a clearing where Gyadim Lax Ts'inaast lives.

But right on top of the mountain is Ma'uus, they showed me on

the map. But . . . is where this mean man lives, and that's

where Xsan Max Hlo'o runs down, that's our boundary.

(V. 13, p. 850).

On this point, the evidence of Mrs. Johnson is consistent

that on the other side, i.e. to the north of Xsan Max Hlo'o

shown as number 320 on Map Exhibit 17-9-A, dated May 13, 1987,

is the territory of Ma'uus.

On re-examination, Mrs. Johnson was asked about the

territory to the north of andamhl, and she said:

It's so plain, sir, this Wil Masxwit. The mountain is

called Wil Masxwit. That's where our ancestors got the mountain

goat, main food, and groundhog that they used the skin for the

feasts, and this Wil Masxwit and Xsu Wil Masxwit comes from Wil

Masxwit and runs into Kispiox River. So they call this Xsu Wil

Masxwit -- Antgulilbix' Genip Jap. That means that Antgulilbix'

hunting territory in the ancient time. So next to Xsu Wil

Masxwit is Ma'uus' boundary. . . .

(V. 15, p. 989).

Following this, Mrs. Johnson was asked if, before talking

to Mr. Neil Sterritt, did she know where Ma'uus' territory was

and she said: ``Yes.'' (p. 989). She said that she knew where

Ma'uus' territory was before she spoke to Mr. Sterritt about the

map: ``Ever since I was small.'' (V.15, p. 990).

Mr. Marvin George testified that he drew Ex-17-9-A and

dated it May 13, 1987 (V. 218, p. 15840). He said:

This is a map of Antglilibix and it's on a scale of

1:50,000 also, and again a topographic series, and

again from a base that was prepared for me by Terra

Surveys. And the boundaries from -- on this particular

map differ from the boundaries on the previous map (X-

19) and would be based on information that was brought

to me by Neil Sterritt.

(V. 218, p. 15840)

Mr. George explained what led him to make the change:

It would be previous to May 13, the date May 13 on this

map, which would indicate that's the day that I finished

preparing this actual map, but the information would have come

to me before that. . . . Again information from Neil Sterritt,

his understanding of where Xsu Wil Masxwit was. It was

identified as Date Creek, and the location of Date Creek is the

-- where Xsu Wil Masxwit as labelled. It's -- Xsu Wil Masxwit.

Date Creek on the NTS series is where this particular feature is

labelled on this map. (X-17-9-A) (V. 218, p. 15841)

As a result Mr. George made the alteration which was

depicted on Exhibit 646-9A.

Mary Moore testified as to the territory, owned by the

House of Luutkudziiwus, immediately to the south of the

Antgulilbix territory: Ex. 593. In the portion of her

description of the boundary which abuts to the Antgulilbix

territory she said:

. . . Here it runs east about two miles along the height of land

to Andamahl (Hazelton Peak) and it continues east to the source

of Xsi Moolaa (Alipakh Creek). It then runs down Xsi Moolaa to

Xsan (Skeena River), it then runs down the center line of Xsan

to the starting point.

M. Moore, Ex. 593, para. 5

Mrs. Moore stated in her affidavit that Antgulilbix's

territory was to the north. When examined on her affidavit Ms.

Moore said that the creek Xsi Moolaa is also called Sika Doak

Creek:

M. Moore, Ex. 593-A, p. 10, 1. 32 - 33.

She said that this creek was the boundary between

Antgulilbix and Luudkuziiwus.

Ex. 593-A, p. 11, ll. 1 - 8.

She also said on the other side of the mountain bordering

her territory was the territory of the Kitwancool people and the

name of the mountain is Andamahl: Ex. 593-A, pp. 12-13, 1. 39 -

2 This examination occurred on November 30, 1988. There were no

other questions put to Mrs. Moore concerning the location of the

boundary with Antgulilbix or the fact that Antgulilbix owned the

territory to the north of the described boundary.

Mr. Jeffrey Harris, Sr. spoke to the Ma'uus territory to

the north of the Antgulilbix territory in Ex. 610. In paragraph

12 of the affidavit he said that ``to the south lies the

territory of Antgulilbix''.

In the boundary description given by Mr. Harris, Sr., of

the Xsa Gay Laaxan territory (Ma'uus) he said in part:

. . . From Wil Gwil the line runs south along the height of land

to the height of land near the head of Xsu Wil Maxswit (main

tributary of Lower Date Creek, un-named on government maps), and

then down and along Xsu Wil Maxswit (un-named creek on

government maps) to its confluence with Lower Date Creek, here

the boundary runs up Date Creek, about two miles, then the

boundary runs east, south of Ansa Luu Hlo'os (un-named mountain

on government maps), to Xsi Anspayaxw (Kispiox River) near the

Kispiox Bridge . . .

J. Harris, Sr., Ex. 610, para. 11

Mr. Harris, Sr. was cross-examined on his affidavit on

December 6, 1988. He stated that Henry Brown had a trapline on

the Ma'uus territory and he belonged to the House of Ma'uus. J.

Harris, Sr., V. 158, p. 10074, 1. 25, Cross.

Mr. Harris was asked no questions about the boundary

description between Ma'uus and Antgulilbix. He was not examined

about the ownership of the territory to the south being in the

House of Antgulilbix.

On both the south and the north of the Antgulilbix

territory at Andamahl, the Defendants chose not to examine on

the boundary description. Hence, they must now be taken to have

accepted those descriptions.

As to the mapping, Marvin George prepared Exhibit 19, the

map of the traditional territory of Antgulilbiiksxw, on a scale

of 1:50,000, ``based on the information on the original coded

map'': M. George, V. 218, p. 15840, ll. 25 - 28. As to Exhibit

17-9-A, Mr. George prepared this map entitled ``Territory of

Antgulilbix'', dated May 13, 1987 on the basis of information

``brought to me by Neil Sterritt'': M. George, V. 218, p. 15840,

ll. 35 - 41. Exhibit 17-9-A was prepared by Mr. George before

May 13, 1987, but on what exact date Mr. George could not say:

V. 218, p. 15841.

Subsequent to the mapping of the boundary of the territory

of Antgulilbix shown in Exhibit 17-9-A, there was a further

change to the boundary of the territory. This resulted:

Information from Neil Sterritt, his understanding of where

Xsu Wil Masxwit was. It was identified as Date Creek, and the

location of Date Creek is the -- where Xsu Wil Masxwit is

labelled. It's -- Xsu Wil Masxwit is Xsu wil Masxwit. Date Creek

on the NTS series is where this particular feature is labelled

on this map.

M. George, V. 218, p. 15841, ll. 17-23

As a result of this additional information an alteration

was made to the boundary of the territory and that was shown on

overlay map (646) 9-A: V. 218, p. 15841, 1. 24 - 27.

Mr. Sterritt testified that he provided the information

upon which Exhibit 19 was drawn: N.J. Sterritt, V. 126, p. 7738,

ll. 33-41. He testified that he received the information from

this map ``from various people''. He named David Gunanoot as one

of those who ``in the 1970's'' provided him with information

about this territory. He also received information from his

father, Percy Sterritt (uncle), Albert Tait, and others: V. 126,

p. 7739, ll. 6 -15.

Mr. Sterritt went on to explain how the assumption that he

had operated on that Date Creek was Xsu Wil Masxw was wrong:

. . . It was -- while listening -- and I had gone through

interviews with Mary Johnson under that assumption, and it was

while listening to the cross-examination of Mary Johnson in

Smithers, I was in the Court and listening, and I realized that

there was something wrong, something wasn't fitting with -- and

I didn't know what it was. There was just something didn't seem

right in terms of what she was explaining, because she was

saying it correctly, but what she was saying and what my

understanding was. So I did not talk to her, I went to my Uncle

Percy, and I asked him, ``Can you tell me which way -- or where

Xsu Wil Masxw is?'' And he said, ``Yes. It's Date Creek, but it

turns right when you go farther up Date Creek.'' And I confirmed

that, I talked to Jeff Harris as well, and I asked him if he

could show me where Xsu Wil Masxw went. So if you -- in fact, if

you come up Date Creek.

Q. Okay. Now, just let's -- to assist us here, if we can start

at the Kispiox river, where does Date Creek, the creek that's

named Date Creek start?

A. You see on the map Agwedin Reserve, A-g-w-e-d-i-n, and I'll

just show you where Date Creek goes. Date Creek follows this

line all the way up to the mountain tops to its source. Xsu Wil

Masxw is the creek from here on up here. And the first time that

I knew that, was after I went to my uncle and then to -- or to

Jeff Harris and then to my uncle, and determined that Mary

Johnson was describing her territory right, but I -- what I

couldn't get straight is what she was trying to say about the

mountain when she was on the stand, and it just didn't fit. So

then when I established that in fact the boundary runs up Date -

- or Xsu Wil Masxw, to the mountains here, and Wil Maxsw is this

mountain in this area, and then everything made sense, I was

able to sort that out.

So that was a major assumption that I made, and a problem -

- I've encountered that kind of a problem before but not to this

degree where one creek can have over its length, three different

names. And I was unable to determine what the balance of the

name of the creek was, of Date Creek, but I established that

Xsdu Wil Masxw continued on up to the north-west.

Q. All right. And do you recall about when it was that you had

the conversation with Percy Sterritt regarding the positioning

of Xsu Wil Masxw?

A. Well with Jeff Harris, I went to see him right away that

weekend. I believe that was a Friday, and so on the following

Saturday, that would be about June the 30th, I went and saw Jeff

Harris, and either the same day or within a very short period of

time I saw -- I went and asked Percy as well, my uncle, Percy

Sterritt.

N. Sterritt, V. 126, pp. 7739 - 740.

As a result of Mrs. Johnson's testimony, Mr. Sterritt came

to understand that the Xsu Wil Masxw is only that portion of

Date Creek on the northern run of the creek to the mountain

tops. This he was told by Jeff Harris and Percy Sterritt. The

boundary was described by Jeff Harris in his affidavit. It was

this piece of information which Mr. Sterritt subsequently passed

on to Mr. George and which Mr. George mapped on Exhibit 646-A.

The information spoken about in testimony by Mrs. Johnson

was correct. Mr. Sterritt and Mr. George misunderstood the

description and incorrectly mapped it. This was not a weakness

in the source or body of the information, but a weakness in the

mapper's comprehension.

(b) The Province's Written Summary

The House of Antgulilbix claims two territories, one near

Kispiox in the Date Creek area, referred to herein as

Antgulilbix South, and the other on the Upper Kispiox River

referred to as Antgulilbix North. Unlike most other territories,

the Date Creek territory boundaries are not set out in a

territorial affidavit. Marvin George stated that the boundaries

for this area were based: ``. . . on the affidavits that

described the territories to the north and to the south of them,

and the affidavits that surrounded their [Mary Johnson, Olive

Ryan] territories, and I relied on the information as given in

the proceedings at trial. Q:That was -- by that do you mean the

testimony which they [Mary Johnson, Olive Ryan] gave at trial?

A:Yes.'' Tr.217, p.15771, ll.18-25

The Antgulilbix South boundaries on map 9A differ from

those on all the other maps exhibited at the trial relating to

the territory as follows: Ex.19 (May 23, 1985), Ex.102 (October

1985), Ex.5 (May 2, 1987), and Ex.17-9-A (May 13, 1987).

Evidence: Mary Johnson. In January 1987, Johnson swore an

affidavit to which were attached answers to interrogatories

indicating in Answer 59(c) that the attached map of the Date

Creek territory (Ex.19), depicted her House's territory in that

area (Tr.13, p.840, ll.1-24). On her Examination for Discovery

in April 1987, she testified that Ex.19 was an accurate

depiction of her territory (Tr.13, p.842, ll.6-12). On May 28

and 29, 1987 Johnson stated that her territory was accurately

shown on another map (Ex.17-9-A) (Tr.12, pp.781, ll.6-11; Tr.13,

p.785, 1.39 to p.786, 1.8; p.838, ll.9-17). The boundaries on

Ex.17-9-A are significantly different from those on Ex.19.

Johnson agreed that there had been a significant change in the

location of the northern boundary of the territory between Ex.19

and Ex.17-9-A. A mountain known as Ansa Luu Hlo'os, a prominent

landmark in the area, appeared in her territory on Ex.19 but was

outside her territory on Ex.17-9-A and was in the territory of

Mauus, Frog clan (Tr.13, p.848, 1.39 to p.850, 1.13). Johnson

explained that one week before her testimony, Sterritt had shown

her an old map indicating that, according to Jonathan Johnson,

the territory north of Date Creek (Xsu Wil Masxwit) was the

territory of Ma'uus (Tr.13, pp.787, ll.3-9; p.788, 1.46 to

p.789, 1.3; p.842, 1.37 to p.843, 1.11; p.851, ll.14-22).

Counsel for the Province requested production of the map to

which Mary Johnson was referring. Counsel for the Plaintiffs

advised the Court that according to Sterritt, the map in

question had been Ex.17-9-A (Tr.13, p.850, ll.44-47; Tr.14,

p.864, ll.1-14). One of the results of the change from Ex.19 to

Ex.17-9-A was to decrease the northern part of Johnson's

territory and to increase the Ma'uus territory. One result of

further changes between Ex.17-9-A and Ex.646-9A is the addition

of a substantial area to the northwest section of Johnson's

territory. This added area also has a boundary adjoining the

Kitwancool claim area. There is no evidence to prove the

boundaries of this additional portion of the territory. There

are no neighbours' territorial affidavits to prove the boundary

adjoining the Kitwancool claims. Jeffrey Harris Sr. swore a

territorial affidavit in June 1988 which deals with the Ma'uus

and Wii Elaast territories to the northeast of Antgulilbix

South, but it does not describe Johnson's western or any of her

House's territorial boundaries (Ex.610).

Neil Sterritt. Sterritt stated that Ex.19 reflected

information which he gave to Marvin George. Sterritt obtained

the information from David Gunanoot in the 1970s, Neil Sterritt

Sr., Percy Sterritt and Albert Tait -- ``many, many people.''

Sterritt made a mistaken ``assumption'' that Date Creek was Xsu

Wil Masxw for its whole length. Percy Sterritt later corrected

this mistake (Tr.126, p.7738, 1.33 to p.7740, 1.26).

Sterritt asserted that Ex.19 was produced in response to

demands for interrogatories. (Tr.135, p.8396, ll.13-18). Exhibit

19 however was dated May 23, 1985 before any interrogatories had

been delivered (Tr.135, p.8398, ll.16-39) and at a time when

there was no pressure created by interrogatories (Tr.135,

p.8399, ll.5-9). Sterritt stated that Ex.19 was ``based on the

information that he had at the time'' (Tr.135, p.8399, ll.22-

34). Sterritt agreed that the information he obtained from the

hereditary chiefs was the basis for Ex.19, ``but it wasn't very

much information'' (Tr.135, p.8414, ll.32-37; Marvin George:

Tr.219, p.15955, 1.45 to p.15956, 1.4). Sterritt said he learned

about the change to Ex.19 altering the northern boundary just

before Johnson testified (Tr.135, p.8401, ll.21-26). Sterritt

did not recall that he had shown a Jonathon Johnson map or

Ex.17-9-A to Mary Johnson prior to her testimony. He said: ``. .

. Mary mentioned that area, I said, 'I understand' or something

to the effect, 'that Jonathon Johnson has said the Gitsum Ganao

own Ansa Luu Hlo'os', and then she in turn said, 'That must be

what my Auntie Emily is referring to, that the boundary goes

down Xsan Max Hlo'o''' (Tr.135, p.8410, ll.21-28). Sterritt

continued, ``What I recall is that as a result of that

discussion, I went away with -- and Marvin redrafted it [the

map] and we brought it back'' (Tr.135, p.8410, ll.31-33; p.8420,

1.17

to

p.8421,

1.42).

Jonathan

Johnson

provided

this

information in 1965 to Wilson Duff. Sterritt did not pass this

information to Marvin George. He agreed that ultimately it was

an important piece of information. ``It wasn't something that

had gone into the preparation of the maps. It was information

that was available to me, and I preferred to work with the

hereditary chiefs and get the information from them'' (Tr.135,

p.8414, ll.12-31). Sterritt said further: ``. . . [T]here was

some information that I discovered later while Mary was on the

stand that made me realize that I misunderstood which creek was

Xsu Wil Masxw . . . [I]t wasn't until in trial while listening

to Mary that I realized that there was something wrong with the

information that I had.'' Tr.135, p.8397, ll.37-40; Tr.135,

p.8398, ll.4-6.

While Sterritt was sitting in the Courtroom during

Johnson's testimony, he came to the conclusion that he hadn't

understood what people had told him with respect to Date Creek.

He then discussed the boundary with Jeff Harris Sr. (Tr.126,

p.7738, 1.33 to p.7740, 1.26; Tr.135, p.8400, ll.28-32; p.8418,

ll.19-29). In September 1988, Sterritt still did not know the

name of Date Creek beyond the junction of the northwest

tributary (Tr.126, p.7740, ll.23-26; Tr.135, p.8416, ll.21-33).

After Johnson approved Ex.17-9-A at trial, Sterritt had further

changes made to the boundaries based on his subsequent

information about Date Creek. These changes are reflected on

Ex.646-9A. As a result of the latest changes to the boundaries,

Wii Elaast and Amagyet obtained a slice of territory between two

parts of Ma'uus. Johnson's territory was enlarged at the expense

of Ma'uus. (Tr.135, p.8416, 1.34 to p.8417, 1.9). These changes

between Ex.17-9-A and Ex.646-9A occurred after Johnson gave her

evidence and identified her territory as that shown between the

heavy lines on Ex.17-9-A (Tr.135, p.8417, ll.10-15).

It was Sterritt's own assumption that Date Creek was Xsu

Wil Masxw beyond the northwest tributary. He did not consider

this to be an ``extrapolation''. Sterritt used the term

``extrapolation'' in the sense that:

``early on when I was -- had a certain amount of information and

not necessarily complete information, attempting to determine

where the boundary might be between those two points I would

extrapolate and draw a boundary that may or may not have been an

accurate boundary.''

Tr.135, p.8418, ll.13-18

Sterritt agreed that Mary Johnson was a chief and a person

with authority (Tr.135, p.8421, 1.46 to p.8422, 1.12). He agreed

also that the Ex.646-9A boundaries were not based upon a

territorial affidavit sworn by Johnson:

``Q: . . . [T]he boundaries on map 9A of her territory have been

spoken to by others than Mrs. Johnson?

A:

There are neighbours, yes, who have, for which affidavits

have been done.

Q: Yes. But not Mrs. Johnson?

A: No.'' Tr.135, p.8423, ll.17-23

Conclusions

The northwestern portion of the Johnson territory on

Ex.646-9A

is

not

based

on

any

evidence.

This

applies

particularly to the part of the boundary adjoining the

Kitwancool claim area. The territory has been extended to cover

that gap and to fill in the boundaries. George has ignored

Johnson's evidence that her House's territory was accurately

depicted on Ex.17-9-A. Exhibit 646-9A, Ex.19 and Ex.17-9-A all

show different boundaries. Johnson also confirmed the accuracy

of Ex.19. Sterritt obtained information on the boundaries from

persons other than Mary Johnson. He extrapolated from that

fragmentary information and had Marvin George prepare Ex.19.

Johnson must have been relying on Sterritt when, on her

Examination for Discovery in April 1987, she said Ex.19 was

accurate. Sterritt contributed further information from Wilson

Duff's 1965 notes which led to a change in the Ex.19 boundaries

and to George drawing Ex.17-9-A. Johnson then stated that Ex.17-

9-A was correct. After Johnson's evidence on cross-examination,

Sterritt conducted further research and spoke to at least one

other chief which led to another alteration in the boundary.

This latest information, not based on any admissible trial

evidence, led George to draw Ex.646-9A boundaries of Johnson's

territory after her testimony and in conflict with her sworn

evidence. Much of Sterritt's information upon which Ex.19,

Ex.17-9-A and Ex.646-9A are based was obtained from people who

were living at the time of Johnson's cross-examination. They

were not identified as informants for Johnson's territorial

boundaries. The Defendants did not learn about the role of these

other Sterritt informants until Sterritt's testimony in 1988. By

that time, Albert Tait and David Gunanoot had passed away; Neil

B. Sterritt Sr.'s cross-examination had been completed and the

Plaintiffs

had

not

produced

Percy

Sterritt

for

cross-

examination. The boundaries were also based on Sterritt's

mistaken assumptions about Date Creek and probably upon his

extrapolation from sparse data. Johnson knew very little about

her boundaries. She relied on Ex.19 and Ex.17-9-A. Johnson's

evidence as to her boundaries on Ex.17-9-A and Ex.19 is not

reputation evidence. It is hearsay and is not admissible. It

conflicts with her prior testimony. Even if admissible, her

evidence conflicts with the Ex.646-9A boundaries. The Ex.646-9A

boundaries for Antgulilbix South are not based upon admissible

or any evidence and therefore are inadmissible. If the

boundaries of Antgulilbix South are unreliable, those of the

neighbouring territories must follow, carrying with them in turn

their neighbouring territories. Alternatively, a gap is created

in the Claim Area belying the Plaintiffs' claims to ownership

and jurisdiction of the entire Claim Area.

(c) Canada's Written Summary

This territory is located immediately west of the village

of Kispiox. Major features on the territory include the Skeena

River, the Kispiox Range of mountains and Upper Date Creek. The

territory was described by Mary Johnson in her testimony. Jessie

Sterritt also appears to have testified about this area. The

Plaintiffs' submissions concerning the territory are found at

pages 81 to 94 of Volume VI of their final argument.

CONCLUSION 2

The evidence is clear that the village called Wilt Gallii

Bax located on the mountain of Andamhl was abandoned long before

Mary Johnson was born. There is minimal evidence of hunting,

trapping, berry picking and fishing on this territory. This

evidence is insufficient to establish any aboriginal rights to

the area. Furthermore, there is no evidence that the territory

has been used for any of these purposes within recent decades.

EVIDENCE 3

Mary Johnson testified that the adaawk of her House stated

that in ancient times there was a village on the mountain behind

Glen Vowell (v. 11, p. 678). The village is identified by the

name of Wilt Gallii Bax. When she was younger Mrs. Johnson was

taken by her grandmother to the place on the mountain where the

village is said to have stood (v. 11, p. 680). It is evident

that this village was abandoned long before Mary Johnson's

lifetime.

4.

Mrs. Johnson also identified a fishing site at Gwin

Disygenn. There used to be a smokeHouse at this site (v. 12, pp.

770-1). This site is depicted on Exhibit 358-22. It is located

on the Skeena River near the village of Glen Vowell. It may, or

may not be, located on the Sik-e-dakh I.R. #2.

5.

Mrs. Johnson testified that her great-great-grandmother

used cedar bark from the territory and that her aunt trapped at

Xsu Wil Maxxwit (Date Creek) (v. 13, pp. 790-1).

6.

Mrs. Johnson also testified that she used to pick

blueberries behind the ``vegetable farm'' near the creek Wilt

Gallii Bax (v. 13, p. 795). This creek is depicted on Exhibit

17-9-A. That map indicates that the creek flows through the Sik-

e-dakh Reserve before it enters the Skeena River. It is unclear

whether Mrs. Johnson was picking berries on the reserve, on

private land, or on Crown land.

7.

Mrs. Johnson also testified that her father took her

brother Stanley Wilson onto the territory when he was young and

showed him where to set traps (v. 13, p. 796). Mrs. Johnson's

statements that her brother trapped on the mountain and hunted

groundhogs on the top of the mountain must have been based on

hearsay because it appears that Mary Johnson did not accompany

her brother on these trips (v. 13, pp. 796-7). The same

submission applies with respect to Mary Johnson's statement that

Fred White went to the territory before Stanley did (v. 13, pp.

797-8).

Part 4. Gidsdaywa, House of Kaiyexweniits, (Alfred Joseph)

(a) Plaintiff's Written Summary

The holder of the name of Gisdaywa is Alfred Joseph.

Gisdaywa is in the Gitumden Clan. There is one territory owned

by the House (named Kaiyexweniits) and that is located at

Bewenii Ben (Owen Lake). Alfred Joseph testified about this

territory in his evidence.

i.

Bewenii Ben (Owen Lake) Territory

(a) Succession of the Territory in the Feast

Alfred Joseph succeeded to the name of Gisdaywa in 1974 at

the headstone feast for Thomas George. Prior to this feast, at

the funeral feast, it was announced by Woos and Kanoots that

Alfred would be the successor to the name of Gisdaywa. At this

feast as well it was announced that the territory at Bewenii Ben

belonged to Gisdaywa (v. 22, p. 1517). A year later when he took

the name the territory was mentioned at the feast and the place

names on the territory including the boundary were spoken of at

the feast and his aunt, Mary George, spoke of the names there

(p. 1517). It was at this feast as well that Alfred performed

Gisdaywa's kungax.

The critical importance of the feast for the sucession of

territory and names is also shown by what Mr. Joseph paid for

the name of Gisdaywa. He contributed $1,400.00 in cash and about

$1,400.00 in goods at the three feasts including the headstone

feast at which he got the name. In total, members of his House

and the members of the Gitumden Clan contributed $6,000.00 at

each of those feasts (V. 22, p. 1516).

(b) Crests

The ownership of territory by Gisdaywa and his House is

evidenced in one of the crests of their House, the House of

Kaiyexweniits. The black bear and bear cub is that crest. This

crest came from an event that occurred on the territory and it

is acted out today:

It is the dance that my grandfather, Joseph George, who was

Gisdaywa at the time, used.

Mr. Joseph went on to say in his evidence that there was a

song that went with that dance:

(It) is acted out like when they see a bear on the side of

the hill and the movements that this bear goes through when he

is up there, how he moves.

Mr. Joseph said that the song was composed to reflect the

way the bear moved. The movements of the bear were the same as

the beat of the sound that was made for his grandfather. Mr.

Joseph testified that the event was known by his grandfather and

the dance is called the ``black bear walk.'' (V. 23, p. 1591).

Gisdaywa also has a personal crest. The crest is the bow

and arrow. Mr. Joseph pointed out in the photograph, Exhibit 62,

Tab 5, the crest figure at the top of the pole, which is the

crest of the bow and arrow. The figure on the pole faces east

because:

The song of Gisdaywa involves the people of the east, and

that is something that happened between Wet'suwet'en and the

people of Nascoteen.

The figure on the bottom of the pole is the man with the

pack, also a crest. There is a burl sitting beside the fence and

on the original pole at Hagwilget there was a burl on the ground

beside the pole and whenever the Gitumden Clan put on a feast

they put that burl on the back of a man as though he is packing

and when the feast is over they took the pack off. The name of

the pole is Esghel (V. 24, pp. 1607 - 1614).

Mr. Joseph recounted the history of the bow and arrow crest

which goes with the performance of the kungax of Gisdaywa:

``It's about a village where the whole population is wiped out

by enemies that came in to raid the territory and there is only

a girl that is spared, and she is the only one that is left in

the village. And when she came out of hiding, back to the

village, she started to cry and her teardrops turned into human

eyes. And she picked up these human eyes and rubbed it on her

bosom and out of that she became pregnant and had a boy. So she

repeated the process and had another boy. The third time she

done that she had a girl and the girl came out to be lame. And

when the lame girl grew up she became very smart. And then they

had a visitor and the visitors came and gave them presents. They

gave them a small box and in the small box was two arrows and he

gave one of those arrows to one of the boys and the other boy he

gave another arrow. And the other present to the girl was a

shovel.

And the man told them that they were his children and he

said that whenever there was any problem you can destroy

anything with this arrow. So they hit the mountain with it and

let the mountain burst.

It is the same thing with the girl. The girl's present was

that when she got that shovel the promise was made to the girl

that all the lame girls that were born would be smart.

And then the man built them a House and that is how the two

boys and the arrow protected the people as the village grew.

They protected them from all of the enemies by using this arrow

that the man gave them. So this is the story of the arrow of

Gisdaywa.''

A. Joseph, V. 24, p. 1603

This story is the history of the crest of Gisdaywa and as

it relates to Gisdaywa's House so it relates to his land.

The crest of a bear is worked onto Alfred Joseph's blanket.

He wore this blanket when he performed the kungax in 1974 when

he received the name of Gisdaywa. Mr. Joseph also wore this

button blanket at the All-Clans Feast on April 6, 1986 in

Moricetown when the Chiefs and elders were present at the

meeting (V. 22, p. 1518; V. 24, p. 1615; V. 33, p. 2115).

(c) Training about Feast, Crest and Territory

The Chief's training and knowledge about the feasts and the

role of the House and Clans in the feast was addressed by Mr.

Joseph:

``There is always feasts happening in

the Reserve and the Hagwilget Moricetown.

And there is times that they were invited to

other villages and whenever what happened

after they came home, they always -- they

analyzed what happened. They talked about a

new chief, someone getting a new name and

there is always talk about -- they always

had discussions about feasts and so you

always knew what clan they were talking

about because of the four clans that are

living in each Reserve.

A. Joseph, V. 22, p. 1515

Mr. Joseph also testified about how he learned about the

territory belonging to Gisdaywa. He travelled into the territory

with the (Thomas) Georges. They passed through Houston Tommy

Creek which is located on Gisdaywa's territory. Alfred knew this

because:

``My grandfather and uncle have both used the territory and

talked about it. And as we were passing through my aunt told me

that that was part of our territory.

A.

Joseph, V. 23, p. 1550

Mr. Joseph said he knows the territory and place names:

``The names that I knew along were told to me by my parents

and grandparents and uncles. And travelling within the territory

we were always told where to stop in case we were up ahead and

someone is behind you so that you don't just keep going. There

is always -- you are always told if you are going to pick up

something at a certain place, so that's why you have to learn

all the names of places.''

A. Joseph, V. 23, p. 1585

Mr. Joseph described that he first heard about the

territory from his grandparents when they were travelling up to

the territory:

``You were told that this is our land

which we are travelling on now. And if we

leave it we give another one, they tell you

that this is that person's land."

A. Joseph, V. 37, pp. 2423-24

The genealogy of Gisdaywa's House, Ex. 62-1 shows that the

chiefly titles of the House and the property that attaches with

it flow in the matriline. Alfred confirmed that the genealogy

demonstrated the passing of the name from the previous name

holders to Alfred and that this was done in accordance with

Wet'suwet'en law (V. 23, pp. 1528-30). The genealogy indicates

as well the previous name holders (now deceased) from whom

Alfred learned about the territory.

Alfred also learned about the poles and history of

Gisdaywa's House from his grandfather and grandmother (V. 33, p.

2155). Mr. Joseph identified the crests on the poles of his

House in the photographs marked Exhibit 62-4,5,6 & 7 (V. 38, p.

2466).

Mr. Joseph himself was trained on the territory and he has

a long history of connection to the territory. His first

recollection was being around Bewenii C'eek, when his mother was

taking water from the stream in winter time and he remembers

worrying about his baby brother (V. 23, pp. 538-59). When he was

on the territory with his family, his family members were mostly

hunting, trapping and doing some fishing. His grandfather,

Joseph Nahlooch, and his uncle, Thomas George, and his family,

spent their time around Owen Lake. Alfred lived there until 1931

when his father died at which time he moved to Hagwilget with

his grandparents. In 1936 Alfred recalls visiting Antoine

Jimmy's family who were living in a log cabin on Gisdaywa's

territory at the outflow of Owen Lake, called Biiwenii Teez

Dlii. At that time his cousins, Thomas and Andy George, were

trapping on the territory (V. 23, pp. 1539-41). Alfred recounted

an occasion in 1936 when the former Noostel (House of Knedebeas)

was returning from Pack Lake with a sled full of furs. There is

a number of people, including Alec Sam, Sarah Seymour (Layton)

and their younger sisters who were there (V. 23, p. 1542).

Gisdaywa returned to the territory again in 1946 and helped

Leonard George and his son take supplies into the territory by

wagon. They went in to trap (p. 1545). Alfred was hunting again

on the territory in 1950 with his cousin, Peter Gray (p. 1552).

During 1950, his uncle Thomas George, was hunting and trapping

on the territory with his sons and when they visited Alfred,

they always talked about the territory (V. 23, pp. 1552-53). In

1967 Alfred drove to the territory to visit the place where his

grandfather lived. In 1981 he went to the territory with Leonard

George. And in 1982 he visited the territory with Johnny David

(V. 23, p. 1553).

(d) Caretakers -- Sons of former Gisdaywa

The importance of the caretaker relationship was expressed

in Mr. Joseph's testimony. He indicated that he had been kept

informed about what was going on in the territory and how the

territory was being used by his cousins, Andy George, Leonard

George and Jimmy George. The sons of the former Gisdaywa, Thomas

George, have ``always been in the area'' and they would tell

Alfred what was going on on the territory (V. 23, p. 1555).

After the former Gisdaywa passed on Alfred gave permission to

Andrew, Leonard and Jimmy to continue to hunt and trap on the

Bewenii Ben territory. And even though he was unable to be there

regularly himself, the territory was used by members of his

House and by Andy and Leonard George (V. 33, p. 2138).

Alfred also gave permission to other people in his clan

(Gitumden) to hunt and trap on his territory, those included

Matt Michell and Houston Tommy (V. 33, p. 2135). Matt Michell

travelled with Alfred on his territory in 1983 and pointed out

the parts of the territory he was using. (p. 2136).

Mr. Joseph was asked in cross-examination what activities

House members were doing on the territory with his permission

and to this he responded:

``There are people from my House that

are on there hunting, fishing or trapping.''

A. Joseph, V. 34, p. 2212

He said:

``There

is

always

some

member

of

Kaiyexweniits on the territory for trapping

purposes during the winter.''

Alfred went on to say he gets fish from the territory from

Leonard or Andy and

``Whenever we are on the territory we

always do fishing''

A. Joseph, V. 35, p. 2237

(e) Ownership determined by Name and Succession

Alfred Joseph expressed the basis for his House's claims to

ownership of its territory:

``Because my uncle, who was Gisdaywa

before me, used and his family used it, and

it's -- it was said that it was their House

territory. And my grandfather also used it.

And when I was given the name, I took the

name of Gisdaywa, I was told that it is

where my territory was, so it just came with

the name.

A. Joseph, V. 23, p. 1589

In these words Mr. Joseph expressed the fundamental basis

by which his House and the Chiefs of the Wet'suwet'en claim

ownership to their territories. In response to the question how

long Gisdaywa's territory has belonged to his House, he replied:

``Our people say that it has been here

as long as they remember. As long as the

land was there, their territory was there.''

A. Joseph, V. 23, p.1551

Alfred Joseph spoke of the rights of the members of the

House of Kaiyexweniits to the territory at Owen Lake:

``They

have

a

right

to

use

the

territory as long as they are members of the

House of Kaiyexweniits still because at

feasts we all together in the feast House

and we have to share the territory. He has

given permission to others to use the

territoy such as Andy and Leonard George,

who are not members of the House, but

members of the House of Smogelgem (mother's

House).''

A. Joseph, V. 23, p. 1590

Alfred described his knowledge of the territories which

bordered on the Owen Lake territory. He pointed out the points

on the boundary of the territory at feasts (V. 23, pp. 1585 -

90). He testified that there had been no changes in the boundary

of Gisdaywa's territory (p. 1594).

(f) Description of the boundaries of Bewenii Ben

Mr. Joseph proved the territorial boundary of the Owen Lake

territory by reference to the geographical features of that

territory. His description was consistent with the map of the

territory, Exhibit 62-3, dated May 12, 1987. Mr. Joseph started

his description of the boundary at a point seven miles west of

the junction of Owen Creek and Morice Lake, a place called

Biiwenii C'eek (V. 23, p. 1574). The boundary point was a

location called ``Oonus Yex'' and on the north side of the

Morice River a hill called ``Tse Mii A'eec'en'' (p. 1574, 1. 14-

21). Mr. Joseph proceeded in his description south from the

Morice River to the next geographic feature, Pimpernel Mountain,

Tse Gheeweliiyh. From there Mr. Joseph described the boundary

moving to Poplar Mountain in a southerly direction, Tse Kaal

Wediintaan. From there, the boundary moved to just south of

Biiwenii Ben to a place called Tsee Coh C'oo, which is a

deadfall place. From there, he testified, the boundary moved to

a range of mountains they called Dek'aay Zii Yes(p. 1575). And

from there the boundary moved up to but below Parrot Lake

running between the upper and lower Parrot Lake. From there, the

boundary ran to a ridge north of Tsenii Yes. From this point the

boundary ran west to a place called Guunyee T'aan Weediil Taan,

which is a high point or ridge. From there the boundary runs to

Taniits C'ekeen S'aay, which is the boundary between the

territory of Kanoots (Madeek) and Dzel Teel (Morice Mountain).

Mr. Joseph said it takes the south slope called Dzel Tel Tai,

which is a trail (p. 1577). He then testified that the boundary

crosses the Morice River where Houston Tommy Creek and where

Antoine Jimmy had his cabin at the mouth of Houston Tommy Creek

(pp. 1578-79). After crossing the Morice River, the boundary

follows the valley of Houston Tommy Creek running northwest

towards the peak called Seslii T'oogh, which is the headwaters

of Houston Tommy Creek, or C'l Tay Toostaan Kwe, (p. 1579).

Having reached the peak of that mountain, the boundary moves

south toward Taniits Tsezel on that ridge and then from there

moves back towards Tse Mii K'eec'en, where it started and moves

across the Morice River.

In addition to describing the boundary of the Owen Lake

territory, Mr. Joseph identified and named other geographical

points within Gisdaywa's territory: V. 23, pp. 1581-84. Mr.

Joseph was told about these places by the former Gisdaywa,

Thomas George, and by his aunt, Mary George. They told him about

the names and places on the territory. And these names and

geographic points were also mentioned in the feast (V. 23, p.

1585). The rivers and lakes referred to as being places in

Gisdaywa territory owned by Gisdaywa are fishing places where

members of the House of Kaiyexweniits fish, (V. 33, p. 2105).

Mr. Joseph was cross-examined about the boundaries spoken

of by him in his evidence. Despite the suggestion, there were no

contradictions between the boundaries as described and the way

that the boundaries were described at the All Clans Feast in

Moricetown in April, 1986, (V. 36, p. 2337). When asked whether

or not the people from Sarah Layton's (Knedebeas') House would

have a right to come up to Peter Alec Creek, Alfred testified

that they could not because they would stay on the other side of

the ridge (V. 37, p. 2391).

Mr. Joseph was asked in cross-examination about traditional

claims of ownership and jurisdiction and it was suggested that

they were limited to hunting and trapping. To this, he replied:

"When they (the people from his House)

talk of their land they also put in the word

Wa Ts'a Id'egh, which means ``everything

that came from the territory.''

A. Joseph, V. 38, pp. 2510-11

Mr. Joseph pointed out in cross, that Morice Mountain (in

the North East) is the boundary between Gisdaywa and Kanoots

(Madeek), part of it in Gisdaywa's territory and part of it in

Kanoots'. (V. 41, p. 2680).

Mr. Joseph explained the reasons for the difference between

the

interrogatory

map

description

and

his

territorial

description. He stated that he had come by further knowledge

which helped him to further clarify certain points of the

boundary. He had discussed this with Andy and Leonard George and

came to a clearer understanding of the boundary at certain

places along the description. (V. 24, pp. 1594-97).

(g) Decisions About the Territory

Management decisions are made about use of the territory by

the House members. Decisions are made within the House by the

members themselves outside of the feast and then announced at

the next feast (V. 33, p. 2139). The House members meet about

whatever is happening on the territory. Alfred consults with his

uncles for advice. With this advice the Chief decides who goes

on to the territory (V. 34, pp. 2195-97). Because the Chief of a

House has the authority to determine who has access to the

territory, Gisdaywa has exercised that authority to permit

others to use his territory. A case in point is his having

authorized Leonard and Andy George to continue to trap on the

territory (V.23, p. 1526 and V. 34, p. 2226). One of the cousins

he authorized to trap on the territory, Jimmy George, died on

the territory (V. 23, p. 1526).

(h) Resources From the Territory

Alfred described the extensive presence of members of his

House and others with permission on the territory. In the past,

Gisdaywa lived at the mouth of Owen Creek as his home place, or

he had a camp wherever he went every winter and spring to trap

for beaver (V. 34, p. 2219).

There was also a berry site at Morice Mountain where

members of the House of Kaiyexweniits harvested berries:

``Any place there was a burn, they

become

berry

sites.

Berry

sites

on

Gisdaywa's territory were not common sites,

but were Gisdaywa's berry sites.''

A. Joseph, V. 33, pp. 2158-60

The berries from Gisdaywa's territory have also been used

in trade with other nations. They traded berries with the Nishga

for oolichan. They traded as well for seaweed, herring eggs,

abalone shells and dried clams. And this trading practice

continues to the present day. Mr. Joseph testified that abalone

shells are used for jewellery or inlay on different carvings,

the oolichan grease is used as food and they mix it with

berries, with vegetable or meat. (V. 23, p. 1557). Skunk cabbage

is also taken from the territory and traded. It is used in the

tieing and rolling of soapberry cakes. The Wet'suwet'en trade

for yellow cedar for use in making special carvings.

A. Joseph, V. 23, p. 1559

Willy George hunts on Gisdaywa's territory and gives meat

from the territory to Alfred. He also provides meat to Sylvester

George and Joseph George, his uncles. In the spring, he gets dry

beaver meat which is also given to his uncle. Sylvester George

is not able to work so they make sure he gets things off the

land which he would need to use. Alfred also receives these

things from Andy and Leonard George.

V. 23, p. 1526

Alfred ensures that conservation practices are utilized by

those using the territory by always moving to a different place

to hunt or trap:

``You don't use one area like all

winter. You go into one valley and you use

that for awhile and then you move to another

area.''

A. Joseph, V. 23, p. 1528

Alfred described the different places on the territory

where members of the House had cabins in the past and where

there are presently cabins located. For example, there is a

trapping cabin located at Xeet Yex on the trail from Parrott

Lake to Owen Lake (V. 23, p. 1583).

There was a House at Biiwenii C'eek used by the former

Gisdaywa and it was also known as a gathering place of the

Wet'suwet'en

people.

It

was

a

winter

village.

Alfred's

grandfather, Joseph Nachloch, trapped there and Thomas George

lived there. This was known as the last place the trappers met

before leaving to the various hunting and trapping territories

to the southwest and south. (V. 33, p. 2153).

On cross, in response to the question, ``What activities do

your House members carry on in the territory with his

permission?'' Alfred said:

``There are people from my House that

are on there hunting, fishing or trapping.''

A. Joseph, V.34, p. 2212

It was suggested to Mr. Joseph that the territory as

defined in Exhibit 62 was 315 square miles and that Gisdaywa's

House only used 40 square miles. But Mr. Joseph explained on re-

examination:

``The valleys and the lakes are used

for fishing year round . . . our people go

hunting,

berry

picking

in

the

summer,

gathering material, putting up fish and

gathering material to make snares, ropes . .

. and for trapping.''

A. Joseph, V. 39, pp. 2559-2560

He went on to say that the mountains are used for hunting

groundhogs and goats. The plateau is used for berries and

gathering food that grow on the summit. Apart from the part of

territory that's not comprised in the valley, lakes, plateaus

and mountains are used. The meadows and open areas are used by

members of his House (V. 39, p. 2560).

Mr. Joseph's evidence shows a long connection of the Chiefs

and members of his House and the ancestors of those Chiefs to

the land and territory at Bewenii Ben. It is evidenced in the

crests, kungax and songs of the House. It has been passed along

the matriline from past generations to Mr. Joseph. There is

historical and contemporary management and harvesting of the

resources on the territory. Mr. Joseph spoke to the many words

in Wet'suwet'en referring to ownership of land, trespass and

boundary. These were old words and clearly indicate the long-

standing ownership of his and the other Wet'suwet'en House

territories.

A. Joseph, V. 23, pp. 1571 - 1572

The evidence about the territory at Owen Lake illustrates

that exclusive possession is in Gisdaywa's House, that the

boundaries are capable of definition, that the boundaries were

known by place names for land features passed to the present

chief through the feast and by on-the-ground description and

that the transfer of the territory was legitimized and

maintained through the feast, crests, poles and oral history of

the House.

(b) Canada's Written Summary

The northern boundary of this territory is approximately 25

miles south of Smithers. Owen Lake is located approximately 60

miles south of Smithers. Alfred Joseph described the territory

during his evidence at trial. The Plaintiffs' submissions

regarding this territory are found at pages 308 to 324 of Volume

VI of their final argument.

CONCLUSION 2

This territory appears to have been abandoned by the

Plaintiffs by 1940. There is little, if any, admissible evidence

that the Plaintiffs used this territory for hunting or trapping

after the 1930's. Furthermore, Mr. Joseph's evidence indicates

that his family only claims to use a small fraction of the

Gisdaywa territory depicted on Exhibit 646-9B. The Plaintiffs

have not established that they continuously used this territory.

EVIDENCE 3

Historical documents show that Mr. Joseph's grandfather,

Felix George, appeared before the McKenna-McBride Commission on

May 25, 1915 (Exhibit 264B, pp. 48-50) requesting land for

himself and his family. Originally, Felix George requested land

in the Ootsa Lake area. This land was unavailable. As an

alternative Lot 3417, Range 5 Coast District was constituted a

reserve for Felix George. This lot is located on the north end

of Owen Lake in the Gisdaywa territory. Historical documentation

also indicates that Felix George had already applied to pre-empt

this same lot (Exhibit 1204-2, p. 781, item29, pp. 823-24;

Exhibit 1203-8, X-14, letter dated 27 March, 1923, p. 7). Felix

George's son, Thomas George, Mr. Joseph's maternal uncle, also

pre-empted land at Owen Lake, which he subsequently sold in 1937

(Exhibit 996-5). This is the first known and recorded presence

of any ancestors of the Plaintiffs in this area. Mr. Joseph

claimed to have no specific knowledge of this history and that

it was not reflected in the crest, songs and traditions of the

House of Gisdaywa (v. 35, pp. 2258-64).

4.

During his cross-examination, Mr. Joseph acknowledged that

the Felix George I.R. #7 reserve on the Bewenii Ben territory is

currently allotted to the Broman Lake Band (v. 35, p. 2257). Mr.

Joseph stated that to his knowledge there was only one person,

Rita George, who was both a member of the House of Kaiyexweniits

and the Broman Lake Band (v. 35, pp. 2268-69).

5.

Mr. Joseph testified that he remembered being at Owen Lake

as a child with his family. After 1931, however, his family

moved to Hagwilget and did not return to Owen Lake (v. 23, p.

1539). Mr. Joseph made intermittent trips through (v. 23, pp.

1539, 1545, 1552-54). There is no evidence he hunted or trapped

on this territory. Mr. Joseph's knowledge of the area has, by

his own admission, been acquired largely from Andrew and Leonard

George, sons of Thomas George, who he said use a trapline within

the area (v. 23, pp. 1526-27, 1555; v. 33, pp. 2137-38; v. 36,

pp. 2335-36). Mr. Joseph also said that there is always someone

on the ``territory''. It is obvious however that much of Mr.

Joseph's knowledge of hunting, trapping and fishing in the area

is based on inadmissible hearsay.

6.

With respect to berry-picking, Mr. Joseph testified that

there were some berry-picking sites on the Owen Lake territory

near Morice Mountain (v. 23, p. 1556; v. 33, pp. 2159-60).

During

cross-examination,

however,

he

admitted

that

his

grandmother, Cecilia George, picked berries around the village

of New Hazelton. He further admitted that it was not necessarily

travelling to the territory to pick berries that was important,

but rather to go to an area where there had recently been a burn

(v. 35, p. 2239).

7.

Mr. Joseph's perspective about the size of this territory

did not coincide with the area depicted on maps provided by the

Plaintiffs which were marked as Exhibits 5 and 646-9B. Mr.

Joseph was cross-examined about his territory as it was depicted

on Exhibit 5 which at the time of his evidence provided the

latest depiction of the ``final'' boundaries of his territory.

The territory as mapped on Exhibit 5 is approximately the same

size and shape as the mapping of the area on Exhibit 646-9B

(compare Exhibits 1243-E and 1243-H on 1243). When asked the

approximate size of the Bewenii Ben territory, in square miles,

Mr. Joseph responded it was approximately 40 square miles in

size. In cross-examination it was suggested to Mr. Joseph that

this territory was 315 square miles in size. When this figure

was put to Mr. Joseph he stated that this could be the total

size, but that his House used approximately 40 square miles (v.

34, p. 2193). This evidence, taken in conjunction with later

evidence regarding the speech made at the Moricetown all-clans

feast by Leonard George suggests that the area used by the House

of Gisdaywa is synonymous with the trapline registered by

Leonard and Andrew George (v. 36, pp. 2335-44; v. 33, pp. 2137-

39). This trapline is located in the southwest portion of the

territory and comprises less than a quarter of its total area.

8.

Mr. Joseph testified that there has been considerable

logging and clear cutting on the Bewenii Ben territory, which

has affected the ability to trap and destroyed trails (v. 23,

pp. 1527-28; v. 25, pp. 1658-59; v. 39, pp. 2609-10).

9.

Mr. Rae McIntyre, a former employee of the Department of

Indian Affairs, who held the position of Superintendent of the

Burns Lake sub-Agency during the late 1960's, testified that

during his tenure with the Department of Indian Affairs, Felix

George I.R. #7 was held by to the Omineca Band (v. 304, p.

23020). He testified that in the course of his duties he

travelled to Owen Lake. He did not see any Indian people living

on the reserve, nor any signs of old habitations (v. 304, p.

22975). He further testified that he never went to Owen Lake

unless there was a lease application. He reiterated, ``There was

no one living there.'' (v. 304, pp. 23008, 23022). Mr. McIntyre

was, however, aware that the reserve ``was at one time a home

site of an Indian person or persons and their families.'' (v.

304, p. 23021). This evidence undermines Mr. Joseph's assertion,

as put forward in the Plaintiffs' argument, that there is

ongoing use by the Plaintiffs of this territory.

Part 5.

Spookw, Stekyawdenhl (Roche de Boule) Territory

(a) The Plaintiff's Written Summary

Steve Robinson, as the head Summary of the House of Spookw,

testified to this territory in his territorial affidavit,

Exhibit 592. He was instructed about this territory by his

father, Bob Robinson, and his mother, Molly Robinson. His father

was from the House of Nikateen. He was also instructed about

this territory by Mary Johnson, the former Yagosip and by Frank

Clark, the former Spookw. All these Chiefs are now deceased.

They pointed out the boundaries and major land marks while

travelling on this territory with Mr. Robinson and they told him

this territory belonged to Spookw. Mr. Robinson identified 17

geographical features on the Spookw territory by their Gitksan

names.

There is a place within this territory known as Daxso'op

which is a pond at the outlet of Seeley Lake. This belongs to

the House of Wii Goob'l. This outlet pond is also known as Wii

Gidii Sitax.

As to whether the ownership or boundary of Spookw's

territory had changed, in cross-examination Mr. Robinson said:

The maps can change, you see, you can draw a map here and

they say cut it in half and then -- but Spookw's territory has

its own boundaries from the time that they were here. You see,

this is what I mean, I'm going to explain to you . . . maps can

change, but the territory itself stays, and we know.

(V. 153, p. 9824, 1. 15 - 29).

Mr. Robinson said that it was a mistake in Mr. N. J.

Sterritt's note that the feature Lax An Daahlw (a berry area)

belonged to Gyetm Galdoo. This note in Exhibit 808 was a mistake

because this area belongs to Spookw (V. 153, p. 9830).

Mr. Robinson explained that the reason why Lost Lake is

Yagosip is that it was claimed by Yagosip quite a few years

``before our time'' but the area around it belongs to Spookw.

(V. 154, p. 9916).

Mr. Robinson made it clear in his testimony that Seeley

Lake itself belonged to Spookw but that the outlet pond at the

northeast end of the lake was owned by Gyetm Galdoo ``because

Gyetm Galdoo had a fishing site right in the mouth of --right at

the mouth of Station Creek, coming out there.'' (p. 9839)

Mr. Robinson learned about Spookw's territory from his

parents and the Chiefs of that territory still maintain it. And

he learned a lot about it from the feast hall (V. 153, p. 9843).

He said:

There are people who are knowledgeable about these areas,

and they pass it on because maybe one time or another in the

past in some of the other areas that there -- that are talked

about in the feast hall. In the feast hall most of the stuff

come up, and if I should stand up and claim an area, a territory

that shouldn't be changed, and the witness in the feast hall

would get up and he would say to me, Your Honour, ``You are

wrong'', and I have to -- have to step back from it, because one

or two witnesses in the feast hall will say that I am wrong.

(p. 9844).

When Mr. N. J. Sterritt wrote in his note of December 31,

1981 that ``Spookw has no land'', that was an error; ``that's

unintentional'' said Mr. Robinson. This note was found in

Exhibit 818 (V. 154, p. 9869) and was part of the process of Mr.

Sterritt's early research to determine the names of the

territories and the ownership of those territories.

Mr. Robinson also indicated that the claim to the Spookw

territory is greater than what was indicated in the map attached

to the interrogatory answers, Exhibit 335 (V. 154, p. 9862).

Mr. Mackenzie in cross suggested that the territories were

a ``re-creation, a creation that you prepared for the Court

case. To this Mr. Robinson said:

It's not a creation, its there and then we know what our

land is. We didn't create -- I'm not -- I'm not a magician to

create anything, to do anything like that -- -- -- -- but we are

talking about land and all get together and then we were denied

by the B.C. Government, they wouldn't recognize us as people of

this country.

(b) The Province's Written Summary

The Spookw claim area boundary on Map 9A is said to based

upon the boundary description in Steven Robinson's territorial

affidavit (Ex.592). (M. George, Tr.217, p.15768). There are

several maps of this claim area prepared by the Plaintiffs that

are inconsistent with Spookw boundaries and ownership shown on

Map 9A as follows: Ex.335, Ex.336, Ex.102 and Ex.5. Exhibit 335

is Steven Robinson's response and Spookw claim area map in

answer to Interrogatory 59(c). Exhibit 336 is another version of

Ex.335 with some amendments. These exhibits show only a portion

of the western half of the Map 9A area presently claimed by

Spookw. Robinson stated in his response to Interrogatory No.

59(c) that the map showed the approximate boundaries of Spookw's

claim area. Exhibit 335, however, is very inconsistent with

Spookw boundaries on Map 9A. (S. Robinson, Tr.154, pp.9861-

9866). Exhibit 102 shows three claim areas jointly claimed by

Spookw and Yagosip. The boundaries and ownership of these claim

areas are inconsistent with the Spookw boundaries and ownership

shown on Map 9A. (S. Robinson, Tr.154, pp.9870-9872). Exhibit

102 and Ex.335 were prepared by M. George from Neil J.

Sterritt's working map. Both maps reflect information in Mr.

Sterritt's working maps, field notes and data sheets obtained by

Mr. Sterritt from the hereditary chiefs. (M. George, Tr.216,

p.15738). Exhibit 5 is also significantly inconsistent with Map

9A Spookw boundaries and ownership. Exhibit 5 was described by

Plaintiffs' counsel on May 20, 1987 as showing the Plaintiffs'

``internal boundaries''. (M. McKenzie, Tr.7, p.410). Neil J.

Sterritt's field notes indicate that on several occasions prior

to the date of Robinson's territorial affidavit, Mr. Robinson

and other informants provided to Mr. Sterritt information

inconsistent with Spookw ownership and boundaries as described

in Mr. Robinson's territorial affidavit and on Map 9A. (S.

Robinson, Tr.153, pp.9824-9828). For example, Mr. Robinson told

Mr. Sterritt that Dam Similoo, a lake southeast of Seeley Lake,

was owned by Gytem Galdoo. (Tr.153, p.9826). Henry Wright told

Mr. Sterritt on April 24, 1979 that Station Creek was owned by

Gytem Galdoo. (S. Robinson, Tr.153, pp.9839-9841; Ex.810). David

Green confirmed that Gytem Galdoo owned Station Creek. (Ex.595A,

p.8).

Mr. Robinson further advised Mr. Sterritt that Spookw had

once owned land in the Mosquito Flats area. (Tr.153, p.9820).

David Green confirmed this. (Ex.595A, p.21). Mr. Robinson also

is noted as having advised Mr. Sterritt that Yagosip and Spookw

jointly owned the claim areas. (Tr.154, pp.9867-9868). All this

information in Mr. Sterritt's notes is inconsistent with

Spookw's present claims as indicated in Mr. Robinson's

territorial affidavit and on Map 9A. Mr. Robinson's territorial

affidavit identifies Seeley Lake as being in Spookw's claim

area. Mr. Robinson testified that Spookw owns Seeley Lake. (S.

Robinson, Tr.153, p.9836). In her commission evidence, Jessie

Sterritt, the former Wii Goobl, testified that Wii Goobl owned

Seeley Lake. (J. Sterritt, Ex.770B, pp.64-65). In the Wii Goobl

response to interrogatory 59(c), Martha Ridsdale deposed that

Seeley Lake was referred to as Wii Goobl's lake. (Ex.811, S.

Robinson, Tr.153, pp.9837-9838). David Green, on the other hand,

stated that Gytem Galdoo owns Seeley Lake. (Ex.595A, p.8). All

this evidence about ownership of Seeley Lake by Houses other

than Spookw is contrary to Mr. Robinson's territorial affidavit

and Map 9A.

Mr. Robinson further advised Neil J. Sterritt in 1979 that

Lost Lake was in Yagosip's claim area. Lost Lake is identified

in Mr. Robinson's territorial affidavit (Ex.592), as being

within the Spookw claim area. Mr. Robinson on cross-examination

agreed that Yagosip owned Lost Lake. (S. Robinson, Tr.153,

pp.9830-9835; Ex.809). This alleged ownership of Lost Lake by

Yagosip contradicts Mr. Robinson's territorial affidavit and Map

9A. Cecilia George, the mother of Thomas George (the former

Gisdaywa), had a registered trapline near Lost Lake within the

Spookw territory. Mrs. George was a member of the Wet'suwet'en

Gitdumden clan. (S. Robinson, Tr.153, pp.9833-9834; Ex.94D).

That fact is inconsistent with Spookw's ownership of this claim

area. Mr. Robinson is also noted by Neil Sterritt to have stated

that Dam Similoo Lake and the berry picking area above Dam

Similoo Lake are owned by Gytem Galdoo. (Ex.808). The Sterritt

data sheet information conflicts with Mr. Robinson's territorial

affidavit and Map 9A. (S. Robinson, Tr.153, pp.9824-9828;

Ex.807;

Tr.153,

pp.9829-9830;

Ex.808).

There

is

much

inconsistent evidence as to the ownership and boundaries of the

Spookw claim area. Mr. Robinson's interrogatories map and the

information which he provided to Neil Sterritt conflict with his

territorial affidavit and Map 9A. There is much other evidence

as well contradicting Map 9A Spookw ownership and boundaries. In

view of these many serious inconsistencies, Mr. Robinson's

territorial affidavit is unreliable. It follows that there is no

reliable foundation and no reputation for the Spookw territorial

boundaries and ownership as shown on Map 9A. The lack of

reliable evidence and reputation as to the Spookw boundaries and

ownership affects the boundary evidence for all claim areas

which have common boundaries with this claim area. These claim

areas on Map 9A include Nikateen, Yagosip -- Nine Mile Mountain,

Djogaslee (Axtii Dzeek), Gwis Gyen, Hanamuxw -- Juniper Creek

and Luutkudziiwus -- Hazelton Creek. The final point should be

made that the Spookw claim area is in the Gitksan heartland.

This is not a remote wilderness claim area. The many serious

inconsistencies as to Spookw claim area boundaries and ownership

illustrate the lack of any settled reputation as to the location

and ownership of this and all the Plaintiffs' claim areas.

(c) Canada's Written Summary

This territory is located about 3 miles south of the

village of Hazelton. Major features of the territory include the

Skeena River, the Bulkley River, and Roche de Boule Mountain.

The territory is described in the affidavit of Steve Robinson

(Exhibit 592, Section A). Jessie Sterritt and Alfred Joseph also

gave some evidence about the territory. The Plaintiffs'

submissions concerning the area are found at pages 178-25 to

178-28 of Volume VI of their final argument.

CONCLUSION 2

There is virtually no evidence of hunting or trapping on

the territory and the Plaintiffs have not established that they

used this territory for those purposes. There is evidence that

``an outlet pond'' at Seeley Lake was used for fishing at some

undefined point in the past but that site appears to have been

abandoned as a fishery or incorporated into a provincial park.

EVIDENCE 3

Jessie Sterritt stated that she used to go to Seeley Lake

with Sam Hope and his daughter and they used a fish trap in the

stream between the two lakes (Exhibit 70B, pp. 64-5). She also

stated that there was a smoke house at the edge of the small

lake (Exhibit 70B, p. 65). Mrs. Sterritt said that ``all the

people, Biiniks and Gyetem Galdoo'' lived in that area in the

fall while they fished and they also set traps at the foot of

the mountain: ``that is where Wii Goobl trapped'' (Exhibit 70B,

pp. 65-7).

4.

There is no clear evidence as to the dates of the events

that Mrs. Sterritt described. Two Sam Hopes appear on the Wii

Gaak genealogy (Exhibit 591, p. 18). Exhibit 45A indicates that

there is a provincial park at Seeley Lake which was established

in 1956. In light of these facts, it is unlikely that the fish

trap and smoke House which Jessie Sterritt describes were used

for many years.

5.

Steve Robinson does not appear to have hunted or trapped on

this territory. He stated that as a boy he trapped with his

father on Nikate'en's territory and since then has only trapped

infrequently in and around the Gitanmaax Reserve (v. 154, p.

9904). He testified that he hunts occasionally but the areas he

describes are nowhere near his territory (v. 154, pp. 9902-4).

6.

Steve Robinson did however describe a berry picking place

on his territory. He said that ``we'' pick berries at a place

called Lax An Daahl Tse Yetswit on the mountain above the lake

known as Dam Similo'o which is located on Lot 2384 in the

southwestern part of the territory (v. 153, pp. 9828-30). There

is no evidence of how frequently this site has been used.

7.

Alfred Joseph testified that he knew that his grandmother

Cecilia George, the wife of Felix George, had a trapline in the

Hazelton area (v. 37, pp. 2398-9). Steve Robinson also testified

that Cecilia George was given permission to use Lost Lake which

is located in the eastern end of this territory (v. 153, pp.

9833-4). However, there is no evidence that this trapline was

actually used.

30(A). YAGOSIP -- MAX HLA GANDIT TERRITORY

Part 6.

Hagwilnegh, Keel Weniits, (McDonell Lake, Telka River)

(a) Plaintiff's Written Summary

This territory was testified to by John David in his

territorial affidavit, Exhibit 665. Mr. David holds the

Wet'suwet'en Chief name of Max Lax Lex and is a member of the

House of Hagwilnegh, Laksilyu clan. Mr. David is over 90 years

old having been born in 1896 (V. 156, p. 10020).

Mr. David is

Wet'suwet'en.

a

senior hereditary chief among the

Mr. David was instructed about the Keel Weniits territory

by his uncle the former Max Lax Lex, Old Sam, a member of the

House of Hagwilnegh. He told Mr. David that the territory

belongs to Hagwilnegh of the Laksilyu clan.

Mr. David described the Keel Weniits territory in his

affidavit and he identified 54 geographical features on the

boundary and within the territory by their Wet'suwet'en names.

Among these features is a lake called Johnny David Lake on the

map and in Wet'suwet'en he said was Neigii T'aat. Mr. David said

his uncle had told him that the boundary of the territory had

remained the same throughout his lifetime and since long before

the arrival of Europeans and that the House of Hagwilnegh had

owned, harvested and looked after the territory from generation

to generation. He had heard this territory described in a feast.

When cross-examined about the English names referred to in

his affidavit, Mr. David said:

Yes I told them place names and landmarks and they in turn

told me the miles, approximate miles. I told them about the

landmarks where I had been on the territory.

He then went on to say about the affidavit:

It was -- all my words were put on this paper.

(V. 156, p. 10000).

As to the ownership of the territory, Mr. David described

the Houses of Wah Tah Kwets and Wah Tah K'eght as being two

other Houses, in addition to the House of Hagwilnegh, in the

Laksilyu clan. Mr. David described the territory as being his

clan's territory. He said that a long time ago the territory

belonged to him and the previous Max Lax Lex and when he passed

on the territory was passed on to him. Mr. David said further:

It's a long time ago, Hagwilnegh and them were as a

company, took care of that territory, and then I am -- I am a

caretaker and I look after it now as a successor to the deceased

people

(V. 156, p. 10002)

Mr. David said that Wah Tah Kwets of his clan holds that

territory within the Keel Waniits territory from McDonell Lake

to Beaver Creek. Dennis Lake belongs to all the Keel Waniits

people (p. 10003-4).

In respect of the boundary of the Keel Waniits territory

Mr. David said ``that the old traditional boundary line was

about a mile or two miles down river, that was the old

traditional boundary line.'' (p. 10005). Mr. David's affidavit

placed the boundary at Pine Creek, but about this Mr. David

said:

They use Pine Creek as a boundary line these days but the

traditional boundary line is just a bit down river, a long time

ago. A long time ago that peak wasn't the boundary. There is a

place called Four Mile Hill up and Old Sam, long time ago, told

me not to go beyond that and because I trapped in there a long

time ago was when he told me that. And that's where the line

goes.

(V. 156, p.10006)

The evidence discloses that in more recent times the

boundary was set by his House and clan at Pine Creek.

(b) The Province's Written Summary

The boundaries of the Hagwilnegh claim area at McDonell

Lake shown on Map 9B are said to based upon the territorial

affidavit of Johnny David. (M. George, Tr.217, pp.15788-15790).

On Map 9B Hagwilnegh claims a large area extending from north of

McDonell Lake south across the Telkwa River to Howson Creek.

There is much inconsistent evidence as to the ownership and

boundaries of this claim area near McDonell Lake. On the basis

of this inconsistent evidence, it is submitted that no

``settled'' reputation has been established for the ownership

and boundaries of this claim area as depicted on Map 9B. Several

witnesses testified that the House of Wah Tah Kwets owns this

claim area. Lucy Bazil, a member of Wah Tah Kwets, testified

that McDonell Lake was in Wah Tah Kwets' claim area. (L. Bazil,

Ex.99, p.129) She said that several members of the House had a

registered trapline at McDonell Lake. (L. Bazil, Ex.99, p.156).

Pat Namox, another member of Wah Tah Kwets, testified that

McDonell Lake was in Wah Tah Kwets' claim area. (P. Namox,

Ex.672A, p.4). John Namox, Chief Wah Tah Kwets, swore an

Affidavit attaching interrogatories answers referring to an

attached map covering the McDonell Lake area. He stated in

Interrogatory answer 59(c) that the map showed the approximate

boundaries of Wah Tah Kwets' claim area. (Ex.828, 828A). The map

also includes Dennis Lake within the territorial boundaries. The

Namox interrogatories map was prepared by Marvin George. (M.

George, Tr.216, p.15742). John Namox swore an Affidavit deposing

that the information set out in the interrogatories answers was

true. The attached map represented his best personal knowledge

of the location of Wah Tah Kwets' claim area at McDonell and

Dennis Lakes. The evidence of Pat Namox, John Namox and Lucy

Bazil conflicts with Johnny David's territorial affidavit and

Map 9B. Johnny David did agree that John Namox owned the area

around Beaver Creek near McDonell Lake. (J. David, Tr.156, p.45)

That evidence conflicts with David's territorial affidavit and

Map 9B. Hagwilnegh's interrogatories response to Question 59(c)

does not mention McDonell Lake or the Keel Weniits claim area.

(Ex.243) The present Hagwilnegh area on Map 9B consists of three

areas depicted as separate claim areas on Ex.5 as follows: Wah

Tah Kwets -- McDonell Lake, Hagwilnegh (Skokumwasas) -- Telkwa

River and Wah Tah Kwets (K'hay La'h) --Howson Creek. Exhibit 5,

on which certain claim areas were identified as correct by Mary

McKenzie and Mary Johnson, is inconsistent with Johnny David's

territorial affidavit and Map 9B. In his testimony, Alfred

Joseph (Gisdaywa) stated that Wah Tah Kwets owned the claim area

adjoining the northwest boundary of the Gisdaywa claim area. (A.

Joseph, Tr.23, p.1587). That was in accordance with Ex.5. That

area to the northwest is the Howson Creek territory now claimed

on Map 9B by Hagwilnegh. Alfred Joseph's evidence therefore is

inconsistent with Johnny David's territorial affidavit and Map

9B.

On Ex.102 (Ex.646-4), the McDonell Lake area is attributed

to Wah Tah Keght with boundaries similar to those in John Namox'

interrogatories map, Ex.828A. Exhibit 102 has the area around

Moricetown now claimed on Map 9B by Wah Tah Keght attributed to

Wah Tah Kwets. The Howson Creek area on Ex.102 is attributed to

Wah Tah Kwets -- Kaylah. Exhibit 102 was prepared by Marvin

George in October 1985 on the basis of researchers' working

maps, field notes and data sheets. The information was obtained

from the hereditary chiefs. (M. George, Tr.216, p.15738).

Exhibit 102 is inconsistent with Johnny David's territorial

affidavit and Map 9B. On Ex.101 also, the McDonell Lake area is

attributed to Wah Tah Kwets. The Wet'suwet'en chiefs displayed

Ex.101 as a depiction of their claim areas at the Moricetown All

Clans Feast with Carrier Sekani chiefs on April 6, 1986. Johnny

David and John Namox were prominent participants in that All

Clans Feast. Exhibit 101 is inconsistent with Johnny David's

territorial affidavit and Map 9B. Trapline ATN 0609T037 is

located southwest and west of McDonell Lake. The trapline is

registered to Jean (John) Namox. It is now held by Pat Namox.

Pat Namox testified that he continues to hunt and trap in this

territory. (P. Namox, Ex.672A, p.6, 7, 11). That evidence

corroborates the evidence that part of this area was claimed

until recently by the House of Wah Tah Kwets contrary to Johnny

David's territorial affidavit and Map 9B. In conclusion, until

at least 1989 when Map 9B was produced, the Plaintiffs regarded

McDonell Lake as being within the claim area of Wah Tah Kwets.

The Howson Lake area was also thought to be within Wah Tah

Kwets' claim area. This is inconsistent with the claim area

boundaries and ownership in Johnny David's territorial affidavit

and on Map 9B. It is submitted, therefore, that there is no

reliable basis in the evidence for reputation as to boundaries

and ownership of the McDonell Lake area or the entire Hagwilnegh

claim area as indicated on Map 9B. The unreliability of the

evidence for the ownership and boundaries of the Hagwilnegh

claim area adversely affects all the neighbouring claim areas,

namely Duubixsw, Wah Tah Keght, Woos, Gisdaywa, Knedebeas and

Kweese.

(c) Canada's Written Summary

The

eastern

boundary

of

this

territory

is

located

approximately 5 miles west of Smithers. McDonell Lake, Dennis

Lake and the Telkwa River are important topographical features

of the territory. McDonell Lake is approximately 10 miles

northwest of Smithers. Johnny David described the area in his

affidavit (Exhibit 665, Section C). Pat Namox and Lucy Bazil

also gave evidence about the McDonell Lake-Dennis Lake area. The

Plaintiffs' submissions on this territory are at Volume VI,

pages 422-424.

CONCLUSION 2

The Plaintiffs have not established that they have

consistently used this territory, especially in the last few

decades.

Lucy

Bazil's

evidence

of

use,

we

submit,

is

inadmissible hearsay. John and Pat Namox have not consistently

used the territory. Indeed, it is only within the last two years

that Pat Namox has gone to the area. There is insufficient

evidence for the Court to make a finding of aboriginal rights to

this territory.

EVIDENCE 3

In his commission evidence, Johnny David testified that

people from Moricetown and Hagwilget hunted in the Kilwoneets-

Telkwa river area. He identified Old Sam, Old Dennis, Joe Nass

and Thomas, Julia, Basil and David Holland as people who used

the area (Exhibit 74A, pp. 6-7). From the Hagwilnegh genealogy

(Exhibit 1067), approximate dates of birth can be obtained: Old

Sam -- @1855; Old Dennis -- unknown; Joe Nass -- @1886, Thomas

Holland -- @1876, died 1924; Julia Holland -- not found; Basil

Holland -- @1881; David Holland -- not found. Mr. David

described these people as Kilwoneetzen -- people of Kilwoneets.

4.

Johnny David testified that there was fishing in McDonell

Lake. It was not exclusively Wet'suwet'en fishing; Gitksan

people also fished there (Exhibit 74H, pp. 50, 52; Exhibit 74C,

p. 48-49). In addition to salmon, the people fished for trout

and dolly varden (Exhibit 74H, p. 63). He stated that some

people still fish there, although he did not say who (Exhibit

74H, p. 64).

5.

Mr. David also said that huckleberries were picked in the

area (Exhibit 74H, pp. 64-65).

6.

Lucy Bazil testified that her uncles Jack Joseph and Pat

Joseph ``used'' and held the territory at McDonell Lake (Exhibit

99, pp. 16-17). Mrs. Bazil said that her first husband, Frank

Basil, trapped on this territory for her (Exhibit 99, pp. 72-

73). She also testified that George Joseph, brother to Jack and

Pat, had a trapline at McDonell Lake (Exhibit 99, pp. 110-111).

Mrs. Bazil's son, Roger, was a member of the trapline at

McDonell Lake, and she stated that both Pat Namox [a.k.a. Jean

Baptiste Namox (Exhibit 672A, p. 12)] and John Namox went out to

the area (Exhibit 99, pp. 156, 72). There is no evidence however

that Mrs. Bazil was ever on the territory. This testimony

therefore is almost certainly based on hearsay and is

inadmissible.

7.

Pat Namox testified that he had trapped out in the McDonell

Lake area in 1987 and 1988 (Exhibit 672A, p. 6). He further

testified that he had hunted around the McDonell Lake area for

moose, although he did not say when (Exhibit 672A, p. 7).

Part 6. Samooh, Tsee Cul Tes Dleez Ben (Tahtsa Lake) Territory

(a) Plaintiff's Written Summary

Elizabeth

Jack

testified

to

this

territory

in

her

territorial affidavit, Exhibit 666. The territory is located

south of Morice Lake a hundred miles southwest of the village of

Moricetown.

Mrs. Jack was instructed about this territory by her

father, Batise Louie and her uncle, the former Chief Louie, who

is a member of the House of Kloum Khun. Both are now deceased.

Chief Louie pointed out the boundary and major landmarks on this

territory when Mrs. Jack travelled with him there.

Mrs. Jack was born at Ootsa Lake, but was raised at

Cheslatta. Mrs. Jack was shown a map of the Tahtsa Lake

territory by Marvin George and the boundaries on that map

correctly showed the territory (Exhibit 666-A, p. 4).

In her cross-examination Mrs. Jack testified that Chief

Louie was a member of the House of Kloum Khun and a member of

the Tsayu Clan (p.5, 1. 3 - 12). She testified that she always

went with her father to the Tahtsa Lake territory to do their

hunting: ``I was raised on there and we always go down there''.

(p. 6) She hunted with both her father and Chief Louie. She

travelled with Keom Morris, a Wet'suwet'en, on the territory as

well.

Mrs. Jack testified that Chief Louie and her father were

Cheslatta people and not Wet'suwet'en (p. 10). She discussed

with Marvin George about the Tahtsa Lake territory belonging to

a Wet'suwet'en Chief, but she did not know who the territory

belonged to. (Exhibit 666-A, p. 12, 1. 41 - 45).

Mr. Johnny David gave evidence that the Tahtsa Lake

territory was owned by Samooh. Mr. David was cross-examined on

his territorial Affidavit, Ex. 665, on December 1, 1988: Vol.

156, p. 9998. During that examination it was pointed out to him

that he referred to the fact that ``the affidavit of Elizabeth

Jack (Ex. 666) sworn on July 19th, 1988 was read to him . . .''

despite the fact that he swore his affidavit 6 days earlier on

July 13th. As a result, the Court indicated that it would

disregard the sentence containing the reference to the date on

which the affidavit was read to him: Vol. 156, p. 9999, ll. 7 -

9.

Mr. David's affidavit continued:

``The territory known as Tsee Cul Tes Dleez Ben (Tahtsa

Lake-Samooh) is Wet'suwet'en territory. I knew Chief Louie. He

informed me that this territory belongs to Samooh, and has

belonged to him since long before the arrival of Europeans.''

Ex. 665, para. 32

On re-examination Mr. David said the following:

Q.

The day that the woman lawyer came to your House to sign

the affidavit with Victor Jim who translated, do you remember

one other affidavit being read to you besides yours?

A.

Q.

A.

Q.

Yes, I remember that.

Do you know a woman named Elizabeth Jack?

Yes, I know her.

Was it her affidavit which was read to you?

A.

J.

Yes.

David, Vol. 156, p. 10015

The evidence is clear: Samooh owns the territory at Tahtsa

Lake.

No other questions were asked of Mr. David either in cross-

examination or in re-examination concerning his statement that

the Tsee Cul Tes Dleez Ben (Tahtsa Lake) territory was owned by

Samooh.

In spite of this, the Province argues that a previous

commission statement to the effect that half of Sebola Mountain

(outside of Tahtsa Lake territory) belonged to Chief Louie, Ex.

74E -- p. 525; ll. 1-8, January 30th, 1986 was a previous

inconsistent statement and therefore his evidence on December

1st, 1988 should not be given any weight.

The difficulty with this argument is that Mr. David was

never cross-examined about the territorial ownership of the

Tahtsa territory, let alone about previous statements made about

Chief Louie. To impeach his evidence on the affidavit, he would

have to be examined directly on the alleged inconsistency.

Mr. David identified Chief Louie, now deceased, himself as

the source of the reputation that the territory is Wet'suwet'en

belonging to Samooh.

This evidence is confirmed by the uncontradicted and

unchallenged evidence of Jimmy Morris and Stanley Morris who

testified to the ownership of the territory at Nanika Lake, to

the North of Tahtsa Lake: Ex. 669-1. Mr. Morris said that the

territory to the South was owned by the Gilsehya, Frog, which is

the clan of Samooh: Ex. 669, para. 13. There is no claim by

Goohlaht of the Gilsehya to the territory there.

(b) Province's Written Summary

The Samooh-Tahtsa Lake territory is located in the

southwest corner of the claim area. It includes Tahtsa Lake and

Troitsa Lake. The boundaries of this territory appear on map 9B.

Marvin George stated that he relied upon the affidavit of

Elizabeth Jack (Ex.666) to draw the boundaries of this territory

(Tr.218, p.15864, 1.42 to p.15865, 1.3). There is conflicting

evidence about the ownership about this territory and whether it

should be included in the Claim Area. Evidence. Elizabeth Jack

Affidavit. In her affidavit, Elizabeth Jack, a Cheslatta person,

deposes that she was instructed about the territory by her

father, Batise Louie and her uncle, Chief Louie. The affidavit,

paragraph 4 contains a detailed metes and bounds description of

the boundary and paragraph 5 refers to geographical features on

the territory. The affidavit says nothing about ownership about

the territory. Johnny David Affidavit. In Johnny David's

affidavit, Ex.665, sworn July 13, 1988, he refers to this

territory in paragraph 32 as follows: ``I have had translated to

me the affidavit of Elizabeth Jack sworn on July 19, 1988. The

territory known as Tsee Cul Tes Dleez Ben is Wet'suwet'en

territory. I knew Chief Louie. He informed me that this

territory belongs to Samooh, and has belonged to him since long

before the arrival of the Europeans.'' Johnny David Cross-

Examination. Reference was made to paragraph 32 of Ex.665 at the

time that Johnny David was cross-examined on his affidavit on

December 1, 1988. Mr. David could not explain how he could have

translated to him an affidavit on July 19, 1988 after the date

he swore his own affidavit, July 13, 1988. In reference to this

conflict, the Court stated: ``I would think the way it stands I

would have to disregard that sentence of this affidavit but

that's as far as it would take us.'' Tr.156, p.9999. ll.7-9.

That would leave the last two sentences of paragraph 32

intact constituting apparent evidence to support the attribution

of territory ownership to Samooh. Elizabeth Jack Cross-

Examination.

On

the

cross-examination

on

her

affidavit,

Elizabeth Jack agreed that this was Chief Louie's territory and

that if someone else wished to trap there, they would have to

ask for Chief Louie's permission. She also agreed that Chief

Louie and Elizabeth Jack's father, Batise Louie, were Cheslatta

Indians (Ex.666A, p.9, 1.47 to p.10, 1.17). Mrs. Jack's re-

examination reads as follows:

``Q: Now, you were asked a question about the Tahtsa Lake

territory and you were asked whether that was Chief Louie's

territory and you said that it was. My question is: Was that

Chief Louie's territory because he had a government registered

trapline there or was it Chief Louie's territory because it was

his traditional Indian territory?

A: They own territory in Indian way.'' Ex.666A, p.13, 1.44 to

p.14, 1.4.

The only evidence that the territory belonged to Samooh,

therefore, is paragraph 32 of the David affidavit. This should

be accorded no weight because Johnny David's earlier testimony

contradicts paragraph 32. Johnny David Commission. In his

commission evidence, Johnny David agreed that Chief Louie was

from Cheslatta (Ex.74E, p.5-23, ll.7-13; p.5-25, ll.24-25;

Ex.74G, p.7-91, ll.14-15). He said further that half of Sebola

Mountain belonged to Chief Louie. (Ex.74E, p.5-24, 1.47 to p.5-

25, 1.2). On map 9B, Sebola Mountain is not within or on the

Tahtsa Lake territory boundaries. It is well within the Goohlaht

territory to the east of the Tahtsa Lake area. It is submitted

that David's statement is consistent with the exclusion of this

area from the Wet'suwet'en claim area on Ex.113 (1977) approved

by the Wet'suwet'en chiefs in October 1977. David's statement is

not consistent with map 9B boundaries in the southwestern region

of the Wet'suwet'en claim area.

David said that the only name he knew on the Nutsenii side

of the boundary was Big Louie (Ex.74E, p.5-30, ll.37-40). Johnny

David's examination-in-chief continued:

``Q: Was Chief Louie Nutseni?

A: Yes.

Q: Was he the Nutseni chief whose territory bordered on the

Wet'suwet'en territory?

A: Yes, he was . . .

Q: Is Sebola Mountain on the boundary between the Wet'suwet'en

people and the Nutseni people?

A: The Sebola Mountain half is Wet'suwet'en territory and half

is Nutseni territory . . .'' Ex.74E, p.5-25, ll.35-45

This evidence is also consistent with Ex.113 and inconsistent

with map 9B.

Further in his examination-in-chief, Johnny David spoke about

Skin Dyee's territory at Skins Lake. The examination-in-chief

relating to this territory was as follows:

``Q: Earlier this morning or just a few moments ago we were

talking about Skin Dyee's territory, is that the same as

Samooh's territory or is it different?

A: Yes, it is the territory of Samooh.

Q: Does Samooh also have other territories?

A: No.'' Ex.74E, p.5-33, ll.25-30

That evidence is inconsistent with the alleged claim by

Samooh to the Tahtsa Lake area. According to David's evidence,

therefore, Samooh had only one territory, that claimed by Skin

Dyee at Skins Lake. Moses David, Johnny David's son, also held

the name Samooh (Ex.74E, p.5-31, ll.3-6). Chief Louie's

territory, furthermore, was outside the Wet'suwet'en boundaries.

Neil Sterritt. Sterritt testified that he drew the boundary on

Ex.113

on

the

basis

of

information

received

from

the

Wet'suwet'en hereditary chiefs (Tr.113, p.7088, 1.43 to p.7089,

1.13). He had meetings with the Carrier chiefs in October 1977

in Moricetown at which time they defined the Wet'suwet'en

boundaries (Tr.113, p.7089, ll.29-38; Tr.115, p.7233, ll.5-15).

Exhibit 113 does not include the Tahtsa Lake territory.

Sterritt testified further that, among the 15 chiefs

present at the Moricetown meeting in October 1977, were Johnny

David and his son, Moses David, who at that time held the title

Samooh (Tr.113, p.7089, 1.41 to p.7090, 1.1). Johnny David was

also present when the map, Ex.113, was presented to the federal

Minister of Indian Affairs at a special ceremony at Kispiox in

November 1977 (Tr.113, p.7084, 1.4 to p.7085, 1.4; p.7086, 1.3).

Sterritt later referred to the difference between Ex.113

(1977) and Ex.648 (1984) with respect to the southern boundaries

of the land claim area. He stated that the southern boundary had

been extended to include, among other areas, Tahtsa Lake, as a

result of field trips that Alfred Joseph made to that area

(Tr.115, p.7257, ll.36-42).

Marvin George. George identified Ex.1003 as Leonard

George's working map (Tr.216, p.15708, 1.24 to p.15709, 1.30).

The name ``Chief Louie'' was written in the Tahtsa Lake area

when Marvin George received Ex.1003. The boundary in the Sibola

Mountain area on Ex.1003 which George transferred to Ex.101 and

Ex.102, differs from map 9B boundaries for the Tahtsa Lake area.

Ex.1003, Ex.101, Ex.102 include part of Sibola Mountain in the

claim area, whereas map 9B excludes that mountain. Exhibit 1003,

Ex.101 and Ex.102 are consistent with Johnny David's commission

evidence in this respect. map 9B is inconsistent with the David

evidence. George stated that the source of the information for

the maps he prepared was the Leonard George and Alfred Joseph

data sheets. That information came originally from interviews

with the hereditary chiefs (Tr.216, p.15714, 1.21 to p.15715,

1.37). For the Tahtsa Lake territory, Leonard George's land use

reference data sheet indicates ownership by Chief Louie (Ex.998-

3, p.9, No.24; Tr.216, p.15694, 1.4 to p.15695, 1.32). The

number 24 corresponding to this entry on the data sheet also

appears on Tahtsa Lake on Leonard George's working map, Ex.1003.

That is inconsistent with Samooh's claim to the territory.

Leonard George also recorded that the south side of Sibola

Mountain was the territory of Chief Louie. His informants were

Moses David (Samooh) on September 9, 1982 and Johnny David on

March 17, 1983 (Ex.998-3, pp.14-15). That is inconsistent with

Samooh's claim to Tahtsa Lake and with map 9B. Leonard George

recorded that Steve Morris advised him on April 6, 1983 that the

south half of Ndeh'da teste, between Nanika and Tahtsa Lake, was

the territory of the Tsayu (Ex.998-3, p.16). On the Land Use

Reference Data sheet, George recorded Sibola or Ndeh'da teste as

a mountain owned by Chief Louie (Ex.998-3, p.10, No.48). On

George's working map, this information is reflected by Number 48

in the Sibola Range north of Tahtsa Lake (Ex.1003) (Tr.216,

p.15708, ll.24-37). This information is inconsistent with

Samooh's (Frog clan) claim to the Tahtsa Lake territory. Leonard

George recorded that Steve Morris advised him on April 6, 1983

that Tahtsa Lake was in the territory of Chief Louie (Ex.998-3,

p.55). That is inconsistent with Samooh's claim to the Tahtsa

Lake territory. Marvin George agreed that Elizabeth Jack's

affidavit does not state that this is Samooh's territory

(Tr.218, p.15866, ll.43-46). He agreed further that the area had

been identified as owned by Chief Louie in the map of April

1986, Ex.101 (Tr.218, p.15867, ll.2-12). Exhibit 102 (October

1985) had the same external boundaries as Ex.101 and also

identified this as Chief Louie's territory. Ex.101 was used by

the Wet'suwet'en chiefs to explain the Wet'suwet'en boundaries

at the All Clans Feast with the Carrier-Sekani chiefs at

Moricetown in April 1986. Johnny David was

a

prominent

participant in this feast (Ex.82, pp.2, 3, 25-27). In response

to Elizabeth Jack's sworn testimony that Chief Louie owned the

area in the Indian way, Marvin George made several references to

notes of his interviews with Jack and Michael Charlie (Tr.218,

p.15867, ll.21-36). However, he agreed that these notes had all

been taken before Elizabeth Jack swore her affidavit and before

she was cross-examined on her affidavit (Tr.218, p.15867, ll.37-

42).

Marvin George stated that Elizabeth Jack had told him on

one occasion that Chief Louie owned the territory and on another

occasion that she did not know who owned the territory (Tr.218,

p.15870, ll.22-37). Marvin George then stated:

``So I have this information, and I

have information based on sworn affidavits,

and

it's

information

from

the

sworn

affidavits that I used to identify that area

as being Samooh.''

Tr.218, p.15870, ll.44-47.

When asked whether he had ignored Elizabeth Jack's sworn

testimony, Marvin George said there were contradictions between

what Elizabeth Jack was saying, what she had told him when she

had first met with him and with other affidavits. Marvin George

denied that he had exercised judgment in selecting evidence. He

stated that ``there was no judgment call and no need for a

judgment call. It's identified in the affidavits of what

territory it is.'' (Tr.218, p.15871, ll.1-11). It is submitted

that George chose the evidence which supported the Wet'suwet'en

claim. He clearly ignored Leonard George's data sheets and

working map information on Sibola Mountain and Tahtsa Lake.

George interviewed Michael Charlie, a Cheslatta Indian, on July

6, 1988. Charlie is said to have stated that the area was

Wet'suwet'en. However, Charlie did not swear an affidavit

(Tr.218, p.15871, ll.16-39). George noted that Jimmy Morris, a

member of the Gitdumden clan, said that the area to the south of

his territory at Morice Lake was Gilserhyu (Frog Clan) (Tr.218,

p.15871, 1.40 to p.15872, 1.4). Chief Louie was Tsayu (Beaver

Clan) according to Elizabeth Jack (Ex.666A, p.5, ll.7-8) and

Johnny David (Ex.74E, p.5-24, ll.9-11). As to the identification

of the territory on Ex.101, George testified as follows:

``Q: . . . [I]t was identified as Chief Louie by you in Exhibit

101?

A: Because that's the information that I had, yes.

Q: Yes.

A: I told you that the information that I had based on the

research that was provided to me is information that went on

those maps.'' Tr.218, p.15872, ll.19-25.

George was referring to the information obtained by Leonard

George and Alfred Joseph and noted in their data sheets and

working maps.

George referred also to the questions he had in his notes as

follows:

``A: I had developed this set of questions based on information

that was provided to me, the contradictions that identified the

ownership of that particular territory.'' Tr.218, p.15873, ll.4-

7.

George's notes stated that Johnny David says Chief Louie's

wife was from the House of Samooh (Tr.218, p.15872, ll.8-9).

George interviewed Michael Charlie on May 12, 1988 (Ex.998-51).

That meeting took place before George's interview with Elizabeth

Jack and before her affidavit was sworn. Charlie told George

that Chief Louie was Cheslatta, Tsayu clan, and that Chief

Louie's wife was also Cheslatta (Tr.218, p.15874, ll.6-40). At

the end of his notes on his interview with Charlie, Marvin

George wrote:

``This trip has only left us with more unanswered questions''

(Ex.998-51).

At Ex.998-21, p.2 is a note in Peter Grant's handwriting

stating that Johnny David says that the territory is owned by

Samooh (Tr.218, p.15876, ll.14-18). George testified that this

was the information on which he relied when plotting this

territory:

``Q: . . . And so it's Johnny David that says that it's Samooh's

territory?

A: Uh-huh.

Q: And this is the information that you relied on in plotting it

on 646-9B as Samooh territory?

A: The information is in the affidavit of Johnny David. That's

the information that I relied on and identified and labelled

that territory as being the territory of Samooh.'' Tr.218,

p.18576, ll.36-44.

George stated further on this point:

``Q: And it's that note [re Johnny David] that you rely on in

contrast to the sworn testimony?

A: It's the affidavit that I rely on which described that area

being Samooh.'' Tr.218, p.15877, ll.42-45.

George said also that he relied on the information in the

affidavits in preference to the chiefs' statements in his notes

when the two sources were in conflict:

``Q: But you will agree with me this far, won't you, that when

you have an interview note with a hereditary chief about his

territory and that interview note conflicts with an affidavit,

the interview note is probably right?

A: No, the affidavit is right.'' Tr.220, p.15993, ll.31-36.

Conclusions

In conclusion, Elizabeth Jack's sworn testimony is that

this territory was owned by Chief Louie, a Cheslatta chief of

the Tsayu clan, in the Indian way. Johnny David, in his

commission evidence, said that Chief Louie was a Cheslatta or

Nutseni chief whose territories lay outside the Wet'suwet'en

territories. He said also that the only area claimed by Samooh

was the Skins Lake territory. Johnny David and his son, Moses

David, who held the title Samooh, were among the chiefs who

described to Neil Sterritt the boundaries of the Wet'suwet'en

claim during the meeting in Moricetown in October 1977. Johnny

David was present when the map, Ex.113, whose southwestern

boundary excluded the Tahtsa Lake area, was presented to the

Federal

Minister

of

Indian

Affairs.

Johnny

David

also

participated at the April 1986 All Clans Feast when Ex.101,

indicating that this area was claimed by Chief Louie, was

displayed to the Carrier-Sekani chiefs. The only basis for

alleging that this territory belongs to Samooh is the last

sentence in paragraph 32 of Johnny David's affidavit, Ex.665.

The Court has ruled that the first sentence in that paragraph is

to be disregarded due to its reference to an affidavit sworn

after the date of Johnny David's affidavit. The second last

sentence is consistent with David's earlier evidence. The last

sentence conflicts with Johnny David's earlier sworn evidence on

commission, with Leonard George's data sheets and working map

(Ex.1003), and with the maps Ex.113, Ex.101 and Ex.102.

Furthermore the last sentence should not be admitted as

reputation evidence since it relates to a subject covered during

Johnny David's commission. The evidence to which Marvin George

refers in his notes of an interview with Michael Charlie is

hearsay and is inadmissible. Charlie was a living Cheslatta

informant who did not swear an affidavit. In any event Charlie

did not know who owned the territory. Jimmy Morris' statement

that the area to the south of his territory was Frog Clan should

be accorded little weight when compared with the Jack evidence,

Leonard George's data sheets and the David commission evidence.

Furthermore, he does not say which House owned the territory so

his evidence is of little assistance to the Plaintiffs in any

event. The Court is left therefore with a conflict between

Elizabeth Jack's sworn testimony on cross-examination and re-

examination and the evidence in Johnny David's affidavit,

paragraph 32, if it is admissible. In view of the serious

conflict with David's earlier commission evidence, the last

sentence in paragraph 32 of the David Affidavit, if admissible,

should be accorded little or no weight. Elizabeth Jack's

evidence should be preferred. She had personal contact with her

uncle and father while living and trapping on the territory. The

overwhelming weight of the evidence is that this territory is

not Wet'suwet'en and must be excluded from the Claim Area.

Alternatively, the evidence of ownership is so conflicting that

it cannot be relied upon and therefore for that reason the

territory must be excluded from the Claim Area, since there is

no evidentiary basis for inclusion.

There is a conflict between the Claim Area boundaries as

depicted on Ex.1003, Ex.101, Ex.102 on the one hand and Ex.646-

9B on the other. Since Leonard George gathered the information

on Ex.1003 from hereditary chiefs, according to Marvin George,

there is no common reputation for these boundaries (Tr.216,

p.15714, 1.21 to p.15715, 1.37). The exclusion of this territory

calls into question not only certain portions of the external

boundary in this area but also the boundaries of the allegedly

adjoining territories. The fragile evidentiary basis for these

boundaries is reputation, but there is no evidence of reputation

for the whole community (if there is one) on both sides of these

boundaries.

There is no evidence of reputation as to the location of

these boundaries from communities on both sides of these lines.

As the evidence stands, taken at its strongest, it relates only

to fragments of one side of these boundaries.

Marvin George's interviews also reflect the unreliable

character of much of this boundary evidence and show conflicting

views, not a common reputation as to the ownership of this

territory. His technique of preparing a ``draft'' map, and list

of geographical features, based on other researchers's data and

working maps, in advance of his interview with Elizabeth Jack,

as well as with other affiants, illustrates the serious problems

with his research techniques.

(c) Canada's Written Summary

This territory is located approximately 75 miles southwest

of Smithers. The main topographical feature on the territory is

Tahtsa Lake. The territory is on the southwest corner of the

claim area. Elizabeth Jack swore a territorial affidavit on this

territory (Exhibit 666). Johnny David also referred to the area.

The Plaintiffs submissions on this territory appear in Volume

VI, pages 418-421.

CONCLUSION 2

There is no evidence that the Plaintiffs hunted or trapped

on this territory. There is evidence that Cheslatta Indians used

this territory. There is no evidence to support the Plaintiffs'

claim of aboriginal rights to this territory.

EVIDENCE 3

Mrs. Jack is the daughter of Batise (a.k.a. Baptiste) Louie

and a niece of Chief Louie (Exhibit 666A, p. 4). By her own

admission, both her father and Chief Louie were Cheslatta

Indians (Exhibit 666A, p. 10). Mrs. Jack is also Cheslatta

(Exhibit 666, para. 1). She testified she was raised on the

Tahtsa Lake territory, but had not been there since 1950-52

(Exhibit 666A, pp. 6, 10). Currently none of Mrs. Jack's

children or grandchildren live on or use the territory (Exhibit

666A, p. 5).

4.

With regard to hunting, Mrs. Jack stated the family always

did the hunting on the territory. No specific area was cited.

She testified that she went hunting on the territory with her

father and Chief Louie, but she could not remember the last time

she went hunting with Chief Louie, who died in 1951 (Exhibit

666A, p. 6).

5.

When Mrs. Jack was asked whether the Tahtsa Lake territory

was Chief Louie's, she responded,

``It is their territory but I don't

know where --

trapline is''

I

don't know where his

(Exhibit 666A, pp. 9-10).

When she was asked about hunting on the territory, she

responded,

``They all go trap in that territory . . .'' (Exhibit 666A, p.

9).

6.

Mrs. Jack stated she never trapped in the area near Mt.

Sweeney, otherwise known as Sibola Mountain (Exhibit 666A, p.

7). Yet when she was asked who taught her the territory

boundaries, she stated,

``Ever since I was a little kid we go out trapping all the time

and I know the territory'' (Exhibit 666A, p. 11).

Mrs. Jack did not know if anyone had trapped the area since 1952

(Exhibit 666A, p. 11).

7.

Alfred Mitchell testified there were Wet'suwet'en hunters

and trappers from the Ootsa Lake area who used this territory,

including Chief Louie's son (v. 59, p. 3583). It appears Mr.

Mitchell has never been to this territory. Therefore this

information is hearsay and is inadmissible.

8.

Mrs. Jack was asked during re-examination if she had ever

fished on the Tahtsa Lake territory. She said that between 1951

and 1952 she fished for trout in the area (Exhibit 666A, p. 13).

9.

During re-examination Mrs. Jack was asked if she had ever

picked berries on the Tahtsa Lake territory and she replied she

had picked huckleberries when she had lived there (Exhibit 666A,

p. 13).

10. Mrs. Jack admitted that in 1952 she asked Keom Morris to

come with her to the territory so that she would know that she

was on the right territory. This was the last time she went to

the territory (Exhibit 666A, pp. 10-11). She admitted that she

did not know where her father's ``place'' was (Exhibit 666A, p.

9). There was no evidence as to where they specifically went on

the territory.