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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1988-09-19] British Columbia. Supreme Court Sep 19, 1988

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 7937  Proceedings  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  SEPTEMBER 19, 1988  VANCOUVER, B.C.  THE REGISTRAR:  In the Supreme Court of British Columbia, this  Monday the 19th day of September, 1988, in the matter  of Delgamuukw versus her Majesty The Queen continuing,  My Lord.  Mr. Sterritt, I remind you you are still under oath.  THE WITNESS:  Thank you.  THE REGISTRAR:  Thank you.  THE COURT:  Would it be convenient to mention the question of  scheduling?  MR. GRANT:  In terms of the cross-examination?  THE COURT:  Yes.  MR. GRANT:  Yes.  THE COURT:  Well, I regret to say that at the moment in view of  the Council that I am expected to attend, it is still  scheduled for the 26th of November, which is the end  of the first week that I think you were suggesting we  should sit in Smithers.  MR. GRANT:  That would be the weekend before the first.  THE COURT:  Yes.  MR. GRANT:  I would propose that they commence on the Monday the  28th or 29th.  THE COURT:  All right.  Well, I have one other problem, and that  is that if for any chance that meeting in Ottawa  should be cancelled, there is some possibility of  that, there is another matter that I have as a back-up  that I must attend, if it's -- if I could possibly be  free on the 25th.  Which would mean that I would have  to leave Smithers on the 24th at the end of the day,  if the plaintiffs are still roughly at the same  scheduling as they were before.  MR. GRANT:  I think, My Lord, that's no difficulty, because  again I am proposing the 28th would be the first day,  because the plaintiffs would need that week before,  the week of the 21st --  THE COURT:  Yes, of course.  MR. GRANT:  -- to prepare, so we could actually do two in a row.  THE COURT:  Well, subject to only then to my forbearing the  pleasures of Ottawa cold for Smithers cold on the  27th, I think you should schedule the  cross-examinations to start on the 28th.  MR. GRANT:  On the basis of in court and out of court.  THE COURT:  Yes.  If that's what everyone is talking about now.  MR. GOLDIE: That's satisfactory, My Lord.  THE COURT:  So that would be the first two weeks in December 793?  Proceedings  1 would expect --  2 MR. GRANT:  Yes, that's right.  And then any to be completed  3 will be completed out of court the following week.  4 THE COURT:  You would expect to run two teams, one in court and  5 one out of court?  6 MR. GRANT:  In order to complete them in three weeks, that would  7 be the best way to do it, and that's what we propose.  8 MR. KOENIGSBERG: My Lord, there is a matter that arises out of  9 the concern about scheduling, and we are in agreement,  10 I don't have any difficulty with running the two  11 cross-examination teams at the same time, but a matter  12 was brought up last week that relates again to  13 production of materials relating to the experts, which  14 if we are unable to resolve, it could impact rather  15 greatly on what is now a very tight schedule on  16 attempting to get through a large number of expert  17 witnesses.  18 That is that my -- the plaintiffs' counsel are  19 taking the position, as I understand it, that  20 interviews, notes and other data of that sort which  21 any expert may have relied upon in coming to their  22 conclusions in the reports is not producible until the  23 witness appears in court; in other words, do not fall  24 within the section of the Evidence Act which says that  25 you must produce the summary of the opinion and the  26 facts which are relied upon.  27 It is our position that data relied upon, such as  28 interviews and surveys and questionnaires or anything  29 of the like does fall within that section, and we have  30 been unable to resolve that issue between us.  I would  31 ask that a time be reserved this week, if possible, in  32 which Your Lordship could hear argument on that point  33 and we could have a ruling, and then we will both know  34 or all know where we are, because if -- if our  35 position is correct, we could come up against an  36 expert witness where we don't have a substantial  37 amount of the data, and we would be into a need for an  38 adjournment.  If that can be avoided, it should be  39 done.  40 THE COURT: What are you suggesting as the time for the argument?  41 MS. KOENIGSBERG: Friday morning is — the first thing is fine  42 with me, if that's agreeable to my friends.  It could  43 be at any time.  Friday morning would probably be the  44 best time.  45 THE COURT: Mr. Rush and Mr. Grant, do you have —  46 MR. GRANT: Yes, My Lord, in terms of that argument.  I just want  47 to state that we have indicated that we do not want 7939  Proceedings  1 to -- notwithstanding the position we take, that we  2 don't want to lead to an adjournment, and we are  3 making investigations as to the inquiries that are  4 being sought of us.  5 In any event, I would propose that if it is going to  6 be Friday morning, that it be -- if it's possible,  7 that it be before the regular session start.  Mr. Rush  8 and I do not really want to interrupt the time  9 required --  10    THE COURT  11 MR. GRANT  12 THE COURT  Can the argument be done in an hour  9  I certainly -- I would certainly believe --  All right.  Well, unless -- I'm sorry, I haven't  13 heard from you, Mr. Goldie.  14 MR. GOLDIE: I am a passenger in this one.  15 THE COURT:  Unless counsel tell me otherwise, we will set this  16 argument for 9 o'clock on Friday morning.  17 THE COURT: All right.  Mr. Rush.  18 MR. GOLDIE: Before my friend resumes his cross-examination,  19 there is a matter about production which is -- has got  20 a bearing on Mr. Sterritt's cross-examination.  On  21 September 14th Ms. Sigurdson wrote to my friends  22 reminding them of a request made on November 9th,  23 1987.  She said on November 9th, 1987:  24  25 "I asked that you provide us with copies of a  26 number of audio tapes listed on the  27 plaintiffs' list of documents.  We have not  28 yet received copies of the following items."  29  30 And then there follows a number of numbers which are  31 numbers from the plaintiffs' list of documents.  I am  32 concerned here only with five of those, and they are  33 interviews conducted by Mr. Sterritt, one with Chris  34 Harris, and that's document number -- I shouldn't say  35 document number.  It's a number allotted in the list  36 of documents to these cassettes.  5557, that is, as I  37 say, is an interview with Mr. Harris.  5594, which is  38 an interview with Mr. Blackwater, and then a group of  39 three tapes, 5629, 5630 and 5630, which are tapes of  40 interviews with members of the Tahltans.  And there  41 have been privilege claimed in respect of some of  42 these.  43 We have advised our friends that we do not accept  44 that, and indeed one of the tapes was produced to Mr.  45 Mackenzie and he made notes of what he listened to  46 when he was inspecting documents at Hazelton, and the  47 notes that he made indicate that these interviews are 7940  Proceedings  1 highly relevant to the question of the jurisdiction  2 being claimed or ownership being claimed of  3 territorial lands.  He did not hear the ones related  4 to interviews with Mr. Chris Harris or Mr. Blackwater,  5 but those names have been heard often.  But the other  6 ones he did, and there was no privilege claimed when  7 the tapes were handed to him in Hazelton.  The notes I  8 have read of his notes indicate that these are highly  9 relevant, and of course they lose their relevance if I  10 don't have them before Mr. Sterritt's  11 cross-examination is completed.  12 Now, we did make another request at the same time,  13 and that was for the tape of an interview with Mr.  14 David Gunanoot, and the number for that is 5602, and  15 that too I submit has become relevant.  16 Ms. Sigurdson advised my friends that a local audio  17 visual company could pick up these cassettes and have  18 copies made within two days, and I would -- I raise  19 this now because I have come to a point in my  20 preparation where I would like to have this -- have  21 those tapes produced at this time.  22 MR. GRANT:  I can speak to this matter, My Lord.  Two tapes,  23 5629 and and 5630, were viewed by Mr. Mackenzie on  24 April 7th, 11th and 12th when they were up north in  25 Hazelton.  The request for those tapes was, as I  26 understand, September 14th of '88.  That was the first  27 request from my recollection after the opportunity of  28 viewing.  No privilege is being claimed at this time  29 with respect to them.  As you can appreciate, once Mr.  30 Sterritt was deemed to be an expert witness, our  31 argument on that point -- we withdrew it.  32 I have Mr. Adams, one of the counsel involved in on  33 a case -- I spoke with him this morning, and, of  34 course, we did not know until just now that my friend  35 is most concerned with these six.  There was a larger  36 number of tapes that they requested, and we have  37 people up north and in Vancouver determining where  38 they are and putting them all together.  Mr. Adams was  39 hopeful that by tomorrow morning they would all be in  40 his hands.  Once that is done, then we can arrange for  41 the copying as proposed by Ms. Sigurdson September  42 14th.  43 I can at the break contact Mr. Adams and have him  44 follow through, and that in fact my friend has a  45 specific concern with only six of them, but as there  46 were a large number, we didn't select.  47 THE COURT:  It sounds like Mr. Goldie wants to concentrate on 7941  Proceedings  1 the six at the moment in any event.  2 MR. GRANT:  Yes.  That may — I'm not certain what that would  3 require now in determining which -- it may not mean a  4 delay of getting all of them together in order to get  5 these six, but I don't know the status of that, and  6 I'll review it with Mr. Adams, but I think we will try  7 and get those to him tomorrow.  8 THE COURT:  It sounds to me that the only problem between you  9 now is logistical, and I don't know when the  10 cross-examinations are to start, but I understand Mr.  11 Goldie's anxiety about getting his preparation  12 completed.  So perhaps you can speak to the matter  13 again Mr. Goldie.  14 MR. GOLDIE:  Thank you.  My friend — I do wish to make it clear  15 it was in November that we asked for copies of these.  16 THE COURT: Yes.  17 MR. GOLDIE:  And while I am asking that certain of them be  18 produced now, we in fact want them all.  19 THE COURT:  Yes.  20 MR. GRANT:  I appreciate that, but I'll see if we can focus on  21 the six that he has raised as the first priority.  22 THE COURT:  May we go back to the other matter for a moment.  It  23 just crossed my mind that Chief Justice McLachlin is  24 being sworn in on Friday morning, and I should like to  25 be there, and I wonder if we can move the argument to  26 Thursday at 9 o'clock.  27 MR. GRANT:  That's fine for the plaintiffs.  2 8 MS. KOENIGSBERG: Yes.  2 9 THE COURT: Mr. Goldie?  30 MR. GOLDIE:  Yes, My Lord.  31 THE COURT:  Yes, all right.  Thursday please.  All right.  Thank  32 you.  Will counsel remind me Wednesday afternoon that  33 we are starting at 9:00 on Thursday?  Thank you.  Mr.  34 Rush.  35 MR. RUSH:  Thank you.  36 MR. GOLDIE:  There is one further matter, My Lord.  There was a  37 discussion on Friday afternoon of the book of -- the  38 collection of feast notes.  39 THE COURT:  Oh, yes.  40 MR. GOLDIE:  And it was suggested that perhaps my friend might  41 let me know what his -- he wanted in the way of an  42 admission, because at the present time it's in limbo.  43 I haven't heard from my friend, but I am prepared to  44 indicate the nature of the admission I will make.  45 THE COURT: All right.  46 MR. RUSH:  Well, we've been considering two options:  Speaking  47 directly to my friend through correspondence, or by 7942  Proceedings  1 providing him with a Notice to Admit.  And we want to  2 encompass a general Notice to Admit that will cover  3 all of the feasts.  It seems that if we can't do that,  4 then we may well have to do one in respect of each one  5 of the entries.  So that's the reason I didn't get  6 back to him.  And we'll try to do that this week, see  7 if we can put it in some summary form, the admission.  8 THE COURT: Thank you.  9 MR. RUSH:  My Lord, I am going to show Mr. Sterritt certain of  10 the linen trapline maps that have been referred to  11 occasionally in the evidence.  You may recall that one  12 of the concerns that we had about these maps was that  13 we did not want to see them leave the possession of  14 the plaintiffs.  We've thought about how to resolve  15 this, and we understand the difficulties that we are  16 going do be faced if we want to present these to Mr.  17 Sterritt and not be able to present him with copies.  18 We don't have copies, and we are going to -- we would  19 like to propose the resolution to be this, that we  20 would seek leave of Your Lordship to have the maps  21 released to us for the purposes of photo reproduction  22 at some point in the future.  I am going to be showing  23 three of these to Mr. Sterritt.  24 THE COURT:  They are not in evidence yet?  25 MR. RUSH:  They are not in evidence.  And when I show them to  26 Mr. Sterritt he will be able to identify them, but the  27 point of my interjection at this juncture is to say  28 that we want to be able to have them released -- with  29 Your Lordship's permission, we would like to have them  30 substituted for the photo reproduction which we hope  31 to be able to obtain some time in the future.  As I  32 indicated before, the cost of the photo reproduction  33 is quite substantial, and we would seek to do that at  34 some point in the future.  So with that, I'll be  35 showing three of these to Mr. Sterritt.  On that basis  36 I would like to proceed with them.  37 MR. GOLDIE:  My Lord, I should say that these are three of the  38 maps that I requested production of, and in respect of  39 which my friend said that they were too fragile to  40 travel.  I did inspect them in Smithers, as it turned  41 out, and I -- we went to the trouble of having a man  42 from the provincial museum there to make  43 recommendations with respect to their travel.  I am  44 delighted to see them here.  I assume the balance of  45 those which I have requested will also be available  4 6 now.  47    MR. RUSH:  That is so.  And — yes, that's right. 7943  Proceedings  1 Q   Mr. Sterritt, I wonder if you would just look at this  2 document which is -- appears to be a map to my eyes.  3 A   Yes.  4 THE COURT:  Is that one map?  5 MR. RUSH:  There are two here.  6 THE WITNESS: There are two maps in front of me.  7 MR. GOLDIE:  Would you give us the names please.  8 MR. RUSH:  9 Q   I'll ask the questions, Mr. Sterritt.  10 Now, I want you to just separate the two here.  11 We'll deal with them one by one please.  Take the top  12 one that you have just been looking at please.  Now,  13 you have one map in front of you, and is there some  14 way of identifying this map, Mr. Sterritt, by  15 reference to a number?  16 A   Yes.  On the rolled map out on the edges is a number  17 handwritten 38C, and there is no other distinguishing  18 feature on this map, other than the information on it,  19 as well as the material which is -- which is a  20 polished linen.  That's the only way I can describe  21 this map.  22 Q   Have you seen this map before?  23 A   Yes, I have.  24 Q   And where did this map come from?  25 A   From the Department of Indian Affairs in Hazelton.  26 Q   Was this one of the maps that you made reference to  27 earlier in your testimony as having come from the  28 Department of Indian Affairs in Hazelton?  29 A   Yes, it is.  30 Q   All right.  And the area that is depicted on this map,  31 are you able to identify it by visual review of this  32 map?  33 A   Yes.  It includes a good part of the upper Skeena  34 River from Sicintine River.  That's S-i-c-i-n-t-i-n-e.  35 Around Tommy Jack Creek and east to the Nass River,  36 north to near the head of the Nass River, and the --  37 and near the head of the Skeena River at Table  38 Mountain.  39 Q   All right.  And there is handwriting or printing on  40 this map.  Do you recognize any of that -- the maker  41 of that handwriting or printing?  42 A   No, I don't.  43 Q   Now, I would like you, if you will, Mr. Sterritt, to  44 just look to the upper right-hand quadrant of this  45 map, and I would ask you if there are any geographic  46 features which you would recognize on the map first as  4 7 named on the map? 7944  N. Sterritt (for Plaintiffs)  In chief by Mr. Rush  1 A   Yes, there are English spellings of topographic names  2 on the maps, such as Mosque River, M-o-s-q-u-e, Duti  3 River, D-u-t-i -- or pardon me, on this map it's Duti  4 Creek.  And there are also handwritten names which  5 appear to be in phonetic and appear along -- on  6 various tributaries of the Skeena River going north of  7 the Mosque River.  8 Q   All right.  I would like you to direct your attention  9 to some of those tributaries, and I would ask you if  10 you can recognize the names that are there handwritten  11 in respect of those tributaries.  12 A   Yes.  The -- there is a creek -- two tributaries north  13 of the Mosque River spelled L-o-o-s-o-o-k-s-i-t space  14 C-r.  15 THE COURT: K-s-i-t?  16 THE WITNESS:  Yes.  Space C-r.  And —  17 MR. RUSH:  18 Q   Now, is that name to the -- just to the right of the  19 second "E" in Skeena?  20 A   Yes, it is.  21 Q   All right.  And when you sound that out, what is  22 that -- how does that sound out to you?  23 A   Loosooksit.  24 Q   Now, do you know a Gitksan topographical feature by  25 that name?  26 A   Yes.  There is a creek called Xsi Luu Suuxsit, and  27 also the short form Luu Suuxsit.  28 Q   And how is that spelled?  29 A   The first is X-s-i space L-u-u space S-u-u-x-s-i-t.  30 Q   All right.  And the place on the map where that Luu  31 Suuxsit is written, is that a place which you know to  32 have any relationship to the Gitksan name which you  33 have just spelt for us?  34 A   Yes.  There is another creek right under it with the  35 word "goat", g-o-a-t, and the two creeks, the two main  36 creeks north of the Mosque River are -- that have been  37 identified to me by hereditary chiefs are Xsi Andap  38 Matx, X-s-i space A-n-d-a-p space M-a-t-x.  And that's  39 what Xsi Andap Matx means.  It refers to a mountain  40 goat.  And then the next creek that has been  41 identified to me is Luu Suuxsit, L-u-u space  42 S-u-u-x-s-i-t.  43 Q   And is that above or north of the creek that's there  44 identified as goat?  45 A   Yes, it is.  46 Q   Are there any other tributaries of the Skeena that you  47 see there identified that you recognize? 7945  N. Sterritt (for Plaintiffs)  In chief by Mr. Rush  1 A   Two more tributaries up from Luu Suuxsit, L-u-u space  2 S-u-u-x-s-i-t, is the spelling M-a-h-h-a-1-o-a-b-i-t.  3 THE COURT: B-i-t?  4 THE WITNESS: Yes.  5 MR. RUSH:  6 Q   And is that handwritten or printed?  7 A   It's hand printed.  8 Q   All right.  And what feature -- or excuse me, what  9 letter or reference points on the map is that feature  10 adjacent to or close to?  11 A   The name Simon Morrison appears there, and it's  12 written right under the "on" of Simon.  13 Q   All right.  14 A   James Morrison has identified a creek in that area for  15 me by the name of Luu Max Loobit.  It's spelled L-u-u  16 space M-a-x space L-o-o-b-i-t.  And on the map that  17 is -- I believe it's -- I have forgotten the English  18 name of the creek on the map.  19 Q   When you refer to the map, you mean the NTS  20 topographic map?  21 A   Yes, updated topographic map.  22 Q   Is there any English name given for the feature you  23 see described by handwriting on the map that's in  24 front of you?  25 A   No.  No, there is isn't, but I recall now it's Alma  26 Creek, A-l-m-a.  27 Q   Just ask you to go upstream, follow the upstream  28 designation of the Skeena River.  Do you see any other  29 names that you are -- that you can identify as  30 describing -- or apparently describing a feature on  31 the map?  32 A   Yes, the next creek up from Alma Creek has printing  33 M-u-s-k-a-k-h-a-b-1-e space C-r.  34 Q   Is there -- how does that sound out to you?  35 A  Well, that would -- if I pronounced it exactly the way  36 it's spelled, would be Muskakhable or something like  37 that.  But that creek, there is also a bracket behind  38 it with another handwriting, "Has gravel in it".  39 Q   Is that gravel?  40 A   G-r-a-v-e-1.  41 Q   Yes.  42 A  And that creek has been identified to me by hereditary  43 Chief James Morrison as Maxhla Saa Giiblax.  That's  44 M-a-x-h-1-a space S-a-a space G-i-i-b-1-a-x.  And  45 Giiblax is fine gravel, G-i-i-b-1-a-x.  46 Q   Now, are there any other handwritten names on this  47 map, as you review it, that appear to be Gitksan 7946  N. Sterritt (for Plaintiffs)  In chief by Mr. Rush  1 names?  2 A   Yes, there are.  3 Q   Can you identify those by some reference point on the  4 face of the map?  5 A  Well, farther north there is a creek in mechanical  6 lettering, capital M-a-1-l-o-c-h.  7 THE COURT:  I'm sorry, again.  8 THE WITNESS: Capital M-a-1-l-o-c-h.  That's a name that appears  9 on topographic maps as Malloch Creek.  And under it is  10 written or printed L-o-o-m-a-h-s-a-y-k-s-u-t.  11 MR. RUSH:  12 Q   Is that hand printed or mechanically printed?  13 A   That's hand printed.  14 Q   And do you recognize the name that that spelling would  15 indicate?  16 A   Yes, that creek has been identified to me as Xsi Luu  17 Mah Seexit.  That's X-s-i space L-u-u space M-a-h  18 space S-e-e-x-i-t.  And Martha Sinclair, James  19 Morrison, Sam Morrison, David Gunanoot have identified  20 that creek.  21 Q   All right.  And when you say "that creek", are you  22 there referring to Malloch Creek, or the creek that's  23 located in the place as it's shown on this map?  24 A   I'm referring to the creek that's shown in that  25 location.  2 6 Q   All right.  27 A   It was described to me as coming off the -- off  28 Chipmunk Peak, and that Gravel Creek or Xsi Maxhla Saa  29 Giiblax, X-s-i space M-a-x-h-1-a space S-a-a space  30 G-i-i-b-1-a-x, comes off the other side and flows into  31 the Skeena.  32 Q   All right.  You made reference to the Duti Creek.  33 There is indicated on this map a Duti Cr., which I  34 mean to be creek.  Do you know from your own  35 understanding of topographic maps of a creek by that  36 name and that location?  37 A   Yes, I do.  38 Q   All right.  Now, do you just want to review other  39 portions of the map that's in front of you, if you can  40 identify any other names which appear to be Gitksan  41 names to you on topographic --  42 A   Yes, there are a number of other names hand printed  43 either in pencil or in pen which are phonetic  44 spellings of Indian names.  Another one on the west  45 side of the Skeena not far north off the Mosque River,  46 M-o-s-q-u-e, is S-h-a-n-h-t-k-a-1-a-k space Cr., and  47 that is in the area of Xsi Ant Gilek, the creek that's 7947  N. Sterritt (for Plaintiffs)  In chief by Mr. Rush  1 been identified to me as Xsi Ant Gilek by hereditary  2 chiefs.  Xsi Ant Gilek is X-s-i space A-n-t space  3 G-i-1-e-k.  4 Q   And where is that in relation to the word Skeena  5 that's printed on the map?  6 A   It's on the west side of the Skeena River and between  7 the letters "k" and "e" on Skeena.  8 Q   All right.  And are you able to -- all right.  That's  9 fine.  Is there anything else that you would refer us  10 to in this respect, Mr. Sterritt, on this?  11 A  Well, only that there is other printing.  On here it's  12 generally in blue coloured pencil which identifies  13 persons given areas.  For example, near the Mosque  14 River is Ernest Angus, A-n-g-u-s.  15 Q   Do you know that person to be or was a Gitksan person?  16 A   Yes, he was a member of the House of Wii Minosik,  17 W-i-i space M-i-n-o-s-i-k.  And below the Mosque River  18 is the word Wright, W-r-i-g-h-t, Simon and Company,  19 and Simon Wright was Wii Gaak, W-i-i space G-a-a-k.  2 0          Q   And there are other names on this map that you  21 recognize, are there?  22 A   Yes.  23 Q   There are names of people, Gitksan people, and you  24 have identified some there.  Now, I would like --  25 MR. GOLDIE:  Excuse me, is the witness saying that all of the  26 names on that map are Gitksan people?  27 MR. RUSH:  No, he didn't say that.  28 MR. GOLDIE:  I'm sorry, I misunderstood him.  29 MR. RUSH:  May that be an exhibit please.  30 MR. GOLDIE:  For identification, My Lord.  It's certainly not  31 proven by this witness.  32 THE COURT: Well, it's proven that it's a document that has the  33 notations on it.  34 MR. GOLDIE:  That's correct, but he didn't put them there.  He  35 doesn't know who put them there.  It's not a map  36 produced by him or by anybody that he's related to.  37 When I say related, to whom he gave instructions or  38 with whom he worked.  39 THE COURT:  What do you say Mr. Rush?  40 MR. RUSH:  I say that it's true that the authorship of the map  41 has not been identified.  On the other hand, it is  42 clear that it is a document that has come from the  43 files of one of the defendants, and is a document to  44 which this witness made reference.  And for the  45 limited purpose of the identifications that he made, I  46 think it's a document that can be identified.  It may  47 not carry the weight that all of the features on the 794?  N. Sterritt (for Plaintiffs)  In chief by Mr. Rush  1 map and the places where they are located on the map  2 can be proved on the basis of what he says, but I  3 don't think -- that's not the purpose for which I am  4 entering the exhibit.  5 THE COURT:  Is it agreed that it's a map that came from the  6 possession of the provincial defendant in the form in  7 which it now appears to be?  8 MR. RUSH:  It's from the Federal —  9 MR. GOLDIE:  Not from the provincial defendant.  My instructions  10 are -- is that this was one of a group of maps which  11 were either abandoned by the Department of Indian  12 Affairs or somehow came into the possession of the  13 plaintiffs.  14 THE COURT:  Is it agreed that it's a document that came from the  15 possession of the federal defendant?  16 MR. MACAULAY: I will have to show those maps to the appropriate  17 people in order to --  18 THE COURT: But physically at some point, as I recall somebody  19 said, that they were discovered, and I don't know that  20 it is this witness that discovered them.  21 MR. MACAULAY:  Nor do I.  I don't know where they were  22 discovered or when.  23 THE COURT:  Will there be more evidence about these maps, Mr.  24 Rush?  25 MR. RUSH:  There may be, yes.  26 THE COURT:  Well, I don't think its been proven that these  27 documents were in the possession of the federal  28 defendant in precisely the form in which they now are.  29 I expect that's the case, but I'm not sure that's  30 proven, and I think that in the course of caution it  31 might be to mark them for identification.  At most  32 they would prove that this witness can relate some  33 Gitksan names to some markings that he now sees on the  34 map.  35 MR. GOLDIE:  Yes, I agree, My Lord.  There is of course the  36 major question to which Your Lordship has just  37 alluded, and that is were those names pencilled in  38 there at that time when the map was in the possession  39 of the plaintiffs or the federal defendant.  40 THE COURT:  I don't think that's proven, Mr. Rush.  I think it's  41 assumed, isn't it, on your part?  42 MR. RUSH:  I can't prove that the federal defendant or one of  43 its agents wrote those -- any of the lettering on the  44 map.  I cannot go any farther than what Mr. Sterritt  45 just did.  But Your Lordship should remember that Mr.  46 Sterritt indicated that he obtained these maps from  47 the Department of Indian Affairs. 7949  N. Sterritt (for Plaintiffs)  In chief by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT:  Well, I wasn't sure whether he said that or not.  MR. RUSH:  Yes, that was his evidence.  THE COURT:  You personally Mr. Sterritt?  THE WITNESS:  Yes.  MR. RUSH:  And that was from the Department of Indian Affairs  office in Hazelton.  THE COURT: Is Mr. Sterritt able to say that at the time he  obtained them that these markings were on them?  MR. RUSH:  I think so.  If it needs to be said, we'll say it.  Let me see that map please.  Q   I'm just showing you the map again, Mr. Sterritt.  Please look at all the writing in blue, and in fact  the lines that are apparently in red and other  handwritten lettering, and indeed any of the lettering  on the map.  And I would ask you if you can advise His  Lordship whether or not those lines and that lettering  and those handwritten words were on the map at the  time that you received it from the Department of  Indian Affairs in Hazelton?  A   This map is in the same condition that it was when I  received it from the Department of Indian Affairs in  Hazelton.  There has been -- the printing and --  that's on the map is what was there when I received  it.  MR. RUSH:  All right.  THE COURT:  Well, in the face of that, unless counsel want to  make a serious submission or any submission, I think  they can be marked as exhibits.  It's a matter of law  as to what the evidence establishes, and be argument  on that as well, but I think the most recent evidence  takes --  MR. GOLDIE:  If the witness says this is the condition in which  they got them, I agree with that.  THE COURT:  Yes.  All right.  MR. GOLDIE:  I was going to ask those questions on  cross-examination, so --  THE COURT:  All right.  So this will be 718, I think.  THE REGISTRAR:  Exhibit 718, My Lord.  (EXHIBIT 71?  MAP 38C  1)  MR. RUSH:  THE COURT  While it may not be necessary to say again, My Lord,  we do wish to have these maps reproduced  photographically at some future point, and would like  Your Lordship's leave to have them substituted for the  photographic --  Any problem with that Mr. Goldie and Mr. Macaulay? 7950  N. Sterritt (for Plaintiffs)  In chief by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR.  THE  MR.  MR.  MR.  THE  MR.  COURT:  RUSH:  COURT:  RUSH:  THE COURT  MR.  THE  RUSH:  COURT:  MR.  MR. RUSH  THE  MR.  GOLDIE:  No, My Lord.  The only comment I make now is that I  anticipate asking Your Lordship to release these maps  for the commission evidence of Mr. Boys, who is a  retired Indian Agent --  And that will be -- that will be in early December?  Yes, or early November.  MACAULAY: First week of November I would hope.  GOLDIE:  And I would anticipate asking they be released for  examination.  Will you have them out and back by then, Mr. Rush?  My Lord, right now we are not in a position to do  what I have just indicated, and I don't think we could  do it prior to the commission of Mr. Boys.  I see.  All right.  Well, is there any reason why  they shouldn't be taken to the commission evidence of  Mr. Boys?  I don't object to that.  All right.  And you may have leave to take them when  you are ready to do what you said you were going to do  with them, Mr. Rush, on the assumption that all  dealings with them will be non-destructive, and they  will be returned in the same shape as they now appear  to be.  Thank you.  Going to show you another map which seems to be a  similar kind as the previous map you were shown, Mr.  Sterritt.  Yes.  All right.  What's -- is there an identifying marking  or number on this map?  There is a 38C on the back side of the map and some  old tape that is fraying as well, and it's more of a  linen -- it's not polished.  It's more of a paper on  one side with a linen backing than the other 38C that  we looked at.  My Lord, it appears that the three maps that I am  going to be showing the witness are all 38C's.  All right.  And I would suggest that we mark them one, two and  three.  Yes, I think they should be.  Perhaps -- Mr.  Sterritt is the experienced map maker.  Can he mark  them maybe one, two and three in some way that might  be more professional than what lawyers can be.  Can  you put a more distinctive mark on it so that we can  identify it?  It says 38C.  You are going to put a "1"  there or something like that?  RUSH:  Q  A  Q  A  COURT:  RUSH:  THE COURT 7951  N. Sterritt (for Plaintiffs)  In chief by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  THE  THE  MR.  THE  THE  MR.  WITNESS: I'll put a "1" in a circle.  COURT:  All right.  WITNESS:   Right underneath it.  RUSH:  Q   All right.  Thank you.  That was the first exhibit.  Now, in reference to the map that I am now showing  you, Mr. Sterritt, also labelled 38C, you are going to  mark a "2" in a circle below the 38?  A   Yes.  Q   Now, is this similarly, Mr. Sterritt, one of those  maps which came from the Department of Indian Affairs?  A   Yes, it is.  Q   And did you receive this map at a time -- at the same  time as the previous exhibit?  A   Yes, I did.  Q   All right.  And if you'll just review the condition of  this map and the markings on the map.  A   It's -- the condition is that it's frayed, ripped in a  couple of places, and also is creased.  Also this map  has less geographic features on it, particularly north  of the Sustut, S-u-s-t-u-t, River along the Skeena.  There are -- the Skeena and the Duti River are the  main features, and there are -- from the Skeena to the  Duti there are no other creeks other than some that  have appeared to have been added in ink by someone  subsequent to the production of the map.  Q   Okay.  Just have a look on the west side of the area  depicted in the map.  And if you will look at the  printing on the map as well as the lines that are  drawn on the map.  A   This has an entire river.  It's spelled on here  Q-u-i-n-a-g-e-s-e.  COURT:  Q-u-i —  WITNESS:  -- n-a-g-e-s-e River.  And that I would take to be  the Kwinageese River.  It flows into the Nass River.  And there is a considerable amount of ink and  sketching to draw in the features in that area.  RUSH:  Q  A  Q  A  Q  A  Now --  This is in the lower left quadrant.  What you have just identified is a river that has been  hand drawn in the lower left quadrant, is that right?  Yes.  All right.  And there appear to be tributaries of that  river.  Do they appear to be hand drawn as well or  inked in?  Yes. 7952  N. Sterritt (for Plaintiffs)  In chief by Mr. Rush  1 Q   And there appear to be names attributed to those lines  2 indicating tributaries?  3 A   Yes.  4 Q   All right.  Now, the condition of this map, what can  5 you say about the condition of this map in relation to  6 the time that you received it from the Department of  7 Indian Affairs?  8 A   The writing that appears on this map -- or I should  9 put it this way.  No additions have been made to this.  10 This map is as it was received from the Department of  11 Indian Affairs.  12 Q   Okay.  13 THE COURT: You mean no additions made since you obtained it?  14 THE WITNESS:  That's right.  15 THE COURT:  Some additions handwritten on it?  16 THE WITNESS:  Yes.  17 THE COURT:  Yes.  How do you spell Kwinageese, Mr. —  18 THE WITNESS:   On the map it's K-w-i-n-a-g-e-e-s-e.  19 THE COURT:  All right.  2 0 MR. RUSH:  21 Q   Now, just before you leave that, Mr. Sterritt, I  22 wanted to ask you if there are features that you  23 recognize on this map that are indicated in Gitksan.  24 A   Yes, there are.  25 Q   Could you just indicate where they are located.  26 THE COURT:  Are these additions handwritten additions?  27 THE WITNESS:  Yes, they are.  2 8 THE COURT:  Thank you.  29 THE WITNESS: They are primarily on the lower half of the map.  30 For example, just south of the Sustut River is a -- is  31 the writing K-s-i-m-o-r -- pardon me -- that's m-o-t -  32 T-i-s - K-w-i-t.  In brackets underneath it is the  33 word "Milking".  That would be M-i-1-k-i-n-g — or  34 L -- yes, L period.  Referring to Milking Lake.  And  35 that is in the general location of a map -- pardon  36 me -- a feature that appears on the national  37 topographic series as Motase, M-o-t-a-s-e, Lake, which  38 has been identified to me by various hereditary chiefs  39 as Dam Xsi Mootixswit, D-a-m space X-s-i space  40 M-o-o-t-i-x-s-w-i-t.  41 THE COURT:  I'm sorry, M-o-o-t —  42 THE WITNESS:  — i-x-s-w-i-t.  And that means milky.  43 Q   Okay.  Do you see other names that appear to you to be  44 Gitksan -- the features named in the Gitksan language?  45 A   Yes.  On the Nass River near the words on this map  46 printed mechanically Vile Creek, V-i-l-e space C-r  47 period, are the words S-a-1-l-y-s-o-u-t space C-r 7953  N. Sterritt (for Plaintiffs)  In chief by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  period, which is on the NTS maps as Sallysout, and is  the area identified by various hereditary chiefs to me  as Xsi Galliix Awit, X-s-i space G-a-1-l-i-i-x space  A-w-i-t.  THE COURT: A-w-i-t?  THE WITNESS:  Yes.  THE COURT:  Okay.  MR. RUSH:  All right  be the next exhibit.  THE REGISTRAR:  Exhibit 719, My Lord  THE COURT:  Yes.  MR.  That's fine, Mr. Sterritt.  If that can  (EXHIBIT NO. 719 - MAP 38C  2)  THE COURT:  Are you waiting for me, Mr. Rush?  MR. RUSH:  I was waiting for Mr. Goldie.  MR. GOLDIE:  Go ahead.  MR. RUSH:  Thank you.  Q   Now, I'm showing you a third map which appears to be a  linen map.  Can you identify this map?  A   Yes, I can.  THE COURT:  This is another 38C?  MR. RUSH:  It is, My Lord.  And with your permission we'll mark  it as the 3.  THE COURT: Yes.  Thank you.  RUSH:  Q  A  Q  THE COURT  MR. RUSH:  Q  A  Q  A  Q  '38C".  Sterritt just to  (EXHIBIT NO. 720 - MAP 38C - 3)  On this map it's marked "B17" and then there is a  stroke --  No, "BA".  I 'm sorry, "BA".  :  "BA"?  "BA" and then a stroke and then  All right.  I am going to ask Mr.  mark under the 38C, 3.  Yes.  Did you obtain this map from the Department of Indian  Affairs in Hazelton at the same time as you obtained  the two previous maps?  Yes, I did.  And if you will just review the markings on it, the  lines and the letterings, words on it, and I would ask  you if you can tell me what the condition of this map  was at the time that you got it in relation to how it  appears now. 7954  N. Sterritt (for Plaintiffs)  In chief by Mr. Rush  1  A  2  3  Q  4  5  A  6  7  8  9  10  11  12  13  14  15  16  17  Q  18  THE  COURT  19  MR.  RUSH:  20  THE  COURT  21  22  MR.  RUSH:  23  Q  24  A  25  26  Q  27  28  A  29  30  31  32  33  34  Q  35  A  36  Q  37  A  38  39  Q  40  41  42  A  43  44  45  46  47  THE  COURT  This map is in the same condition as it was when I  received it.  All right.  Now, there appear to be notations on this  map, Mr. Sterritt.  Yes.  This 38C-3 appears to be on the same base as  38C-2, because once again there -- apart from  tributaries that have been added in ink along from the  Sustut River to the Duti River, there are no  tributaries that appear on this map, so -- but there  is different writing, printing, more creeks added  along the east side of the Skeena as pencil lines and  English names, like Gravel Creek, Stoney Creek, Goat  Creek and Moose Creek.  There are also creeks that  have phonetic spellings of places that I have -- that  hereditary chiefs have shown me, and they correspond  to the names that have been given to me.  What's an example of that?  : Are there a number of these, Mr. Rush?  There are one or two.  :  We'll do those and then we'll take the adjournment.  Thank you.  Go ahead, Mr. Sterritt.  We'll do those now.  Okay.  The spelling is M-a-h-1-e - D-a - D-a-h-t space  C-r period.  And where is that located on the map?  Is there a  reference point that you can --  It is -- the name Jack, J-a-c-k, coma Tommy appears on  the map at the bottom, and this creek runs right  through it.  And the lettering is right by the "C" of  Jack.  And that creek, there is a creek identified in  that area as Max Hla Didaat.  That's M-a-x space H-l-a  space D-i-d-a-a-t.  And who identified that for you?  Solomon Jack, the nephew of Tommy Jack.  Tommy Jack you know to be a Gitksan person?  Yes.  His Gitksan name was Gwinin Nitxw, G-w-i-n-i-n  space N-i-t-x-w.  Is there another inked or pencilled in name to a  topographic feature that you recognize close to the  word Jack that you have just referred to?  Yes, about three inches to the left of the last creek  is M-a-h-1 - S-k-a - M-o-a-t space C-r.  And there is  a creek that has been identified not there but in that  general area as Maxhla Ska Moogit, M-a-x-h-1-a space  S-k-a-m-o-o-g-i-t.  :  That's not the same word as head chief, is it, 7955  N. Sterritt (for Plaintiffs)  In chief by Mr. Rush  1 Samoogit?  2 THE WITNESS:   It's close but it's not the same.  3 THE COURT:  The other one wasn't "s-k", was it?  4 THE WITNESS: S-i.  5 THE COURT:  Yes.  6 MR. RUSH:   I'll be asking him a few more questions on the map,  7 so if you want to take the adjournment, we could do so  8 now.  9 THE COURT:  Yes.  10  11  12 (PROCEEDINGS ADJOURNED FOR A SHORT RECESS)  13  14 I HEREBY CERTIFY THE FOREGOING TO  15 BE A TRUE AND ACCURATE TRANSCRIPT OF THE  16 PROCEEDINGS HEREIN TO THE BEST OF MY SKILL  17 AND ABILITY.  18    19 LORI OXLEY  2 0 OFFICIAL REPORTER  21 UNITED REPORTING SERVICE LTD.  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  4 7 (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT) 7956  N. Sterritt (for the Plaintiffs)  In chief by Mr. Rush  1  2  THE COURT  3  MR. RUSH:  4  Q  5  6  7  8  9  10  A  11  Q  12  A  13  14  Q  15  16  17  18  19  20  A  21  Q  22  23  A  24  Q  25  26  27  28  29  30  A  31  Q  32  A  33  Q  34  35  36  37  38  A  39  Q  40  41  42  A  43  44  45  Q  46  47  A  :  Mr. Rush.  Thank you.  Now, Mr. Sterritt, referring you back to 38C-3, and I  ask you if you would look into the upper right-hand  quadrant of this map, and I'd ask you if there appear  to be notes -- indeed, in the upper half of the map  are there notes that appear on this map that were not  on the two previous maps that were marked?  Yes.  Okay.  And I want to --  Throughout the map there are notes that do not appear  on the other one.  Okay.  Now, I'd like you, if you will, to look to a  note in the upper right-hand corner of this map, and  it's just to the lower left of a feature marked  Thutade, T-h-u-t-a-d-e.  Is that a feature that you  know to be located in a similar place on the National  Topographic Series Maps?  Yes.  All right.  Is that the Thutade that you have made  reference to throughout your testimony?  Yes, it is .  All right.  Now, the note that appears to the lower  left of that feature indicates, and I'm quoting,  "Maggie Louie says this belong to her mother's uncle,  it looks like old Nii Kyap."  That's the end of the  quote of the first sentence.  Do you know a Maggie  Louie?  I'm aware of the name Maggie Louie.  Is this person living?  No.  Deceased.  All right.  And it goes on to say, and I'm quoting, in  the second sentence, "Mrs. Louie has one living sister  at Bear Lake.  Sophia Jack who has four living  children", and I'm just going to pause there.  That's  the end of the quote.  Do you know Sophia Jack?  I know of Sophia Jack.  She's deceased.  All right.  And continuing on, "Namely Eric, Paul,  Mary Jack and Mrs. Bob Patrick."  Do you know an Eric  Jack?  No.  There is an Alec Jack.  There are four children  of Sophia that I'm aware of.  It's Alec, Paul, Mary  and Eliza.  Eliza Jack.  And is there any relationship between  Eliza Jack and Mrs. Bob Patrick?  That's the same person. 7957  N. Sterritt (for the Plaintiffs)  In chief by Mr. Rush  1  Q  2  3  MR.  GOLDIE  4  MR.  RUSH:  5  Q  6  7  8  MR.  GOLDIE  9  10  MR.  RUSH:  11  Q  12  A  13  Q  14  15  A  16  Q  17  A  18  Q  19  20  21  A   I  22  23  Q  24  A  25  MR.  GOLDIE  26  27  28  ]  29  MR.  RUSH:  30  31  Q  32  33  A  34  THE  COURT:  35  MR.  RUSH:  36  MR.  GOLDIE  37  MR.  RUSH:  38  MR.  GOLDIE  39  THE  COURT:  40  1  41  A  42  THE  COURT:  43  A  44  MR.  RUSH:  45  Q  46  47  A  All right.  And it goes on to say, "Bob Patrick  apparently from Fort Graham."  :  Graham.  That's what I said.  "And has no claim to this T/L except through his  wife."  Now, do you know the relationship of Bob  Patrick and Eliza Jack?  :  Does he know a Bob Patrick, I think that's the  first question.  Do you know a Bob Patrick, Mr. Sterritt?  I know of Bob Patrick.  And you have -- is there a relationship between Bob  Patrick and Eliza Jack?  They were husband and wife.  Are they living or deceased?  They are both deceased.  All right.  Now, Mr. Sterritt, are the children, Alec,  that you've identified, Paul and Mary Jack, are they  living or deceased?  Mary Jack died in the last two years -- within the  last two years, and Alec and Paul are still alive.  Okay.  And do you know what house they are in?  In —  :  Excuse me.  I think that assumes something.  The  statement on the map is that Patrick is from Fort  Graham.  That implies to me that he's not a Gitksan,  my lord.  That's correct, my lord, and I'm not asking about  him.  I'm asking about the children.  And do you know if the children are Gitksan persons or  not?  They are Gitksan persons.  These are the children of --  Sophia Jack.  :  Sophia or Eliza?  Sophia.  Eliza is one of the daughters.  :  Yes, that's correct.  Thank you.  So the question is are the children of Sophia Jack  Gitksan?  Yes.  And the answer is yes, they are?  Yes.  And do you know the house that the children of Sophia  Jack are in?  The House of Nii Kyap. 7958  N. Sterritt (for the Plaintiffs)  In chief by Mr. Rush  1  Q  2  3  4  1  5  A  6  Q  7  A  8  9  MR.  GOLDIE  10  11  THE  COURT:  12  13  MR.  RUSH:  14  THE  COURT:  15  16  MR.  RUSH:  17  18  ]  19  THE  COURT:  20  MR.  RUSH:  21  THE  COURT:  22  MR.  GOLDIE  23  24  MR.  RUSH:  25  MR.  GOLDIE  26  MR.  RUSH:  27  MR.  GOLDIE  28  THE  COURT:  29  MR.  GOLDIE  30  31  32  i  33  MR.  RUSH:  34  THE  COURT:  35  THE  regist:  36  MR.  RUSH:  37  38  39  40  41  THE  COURT:  42  MR.  RUSH:  43  THE  COURT:  44  MR.  RUSH:  45  Q  1  46  47  All right.  And the area -- are you able to say, Mr.  Sterritt, the area where the printing is located there  on the map, what is your knowledge about which of the  Gitksan hereditary chiefs own an area?  You mean the mechanical printing?  No.  The handwritten printing.  That -- that is in the area of the Territory of Nii  Kyap.  :  As now claimed, my lord.  That's in the area that  was dropped.  Mr. Rush, I haven't looked at those maps, but are  all three of them the same portion of the territory?  Yes.  And one -- they appear to be copies of each other.  They're all copies of the same thing?  They aren't, my lord.  There are certain base  features in the map that are the same, but each of the  maps is different, but they depict the same area.  All for the same claim area?  Yes.  Thank you.  :  I think, my lord, they are different editions of  the same map.  I don't think we could go that far.  :  Well, when I say --  Unless my friend knows something I don't.  :  I'm going by what I see.  It will be a matter of argument.  :  It looks like they're subsequent with additional  information printed on it, and that's all I'm talking  about it.  They look to me to be different editions.  Well, indeed -- I can make a submission on that later.  May that be the next exhibit, please.  Yes.  RAR:  Exhibit 720, my lord.  My lord, I have another document book which I want to  refer the witness to.  I have only one copy for your  lordship.  I wasn't able to have the bench copy ready  for today's court, but I will get that and provide  your lordship with another copy.  You need this for the witness, do you?  I need one for the witness, and he can refer to mine.  Yes.  All right.  Mr. Sterritt, I'm showing you a binder with a number  of notes contained in the binder, and it's -- the  index page is entitled "Notes of Interviews with the 7959  N. Sterritt (for the Plaintiffs)  In chief by Mr. Rush  1  2  3  4  5  6  A  7  Q  8  9  A  10  Q  11  12  13  14  15  16  A  17  Q  18  19  20  A  21  Q  22  23  24  25  26  27  A  28  Q  29  30  31  A  32  Q  33  34  35  36  37  A  38  Q  39  40  41  A  42  43  Q  44  A  45  THE COURT  46  A  47  MR. RUSH:  Deceased Chiefs Re Territories", and the binder is  organized according to the name of the deceased chief  running from tabs 1 through to 19 beginning with David  Gunanoot and ending with Albert Tait.  Now, you've had  an opportunity of reviewing this binder, Mr. Sterritt?  Yes, I have.  All right.  And were you the author of the notes that  are contained in this binder?  Yes, I am.  All right.  And the notes appear to be broken into  various types of places where the information is  recorded.  Firstly in a journal.  It refers to journal  A and journal B.  Are those the journals in which  you've made reference during the course of your  testimony?  Yes, they are.  And then it makes reference to field books and  numbered field books.  Are those the field books to  which you've made reference throughout your testimony?  Yes, they are.  And then there is a sub-category under the name of the  first and foreman David Gunanoot entitled Topo, that's  T-o-p-o, Sheets.  You've made references to a number  of those sheets throughout your testimony.  Are these  sheets taken from the group of topo sheets that you've  made reference to?  Yes.  And is that the case throughout the notes that are  contained first referenced in the index and contained  in the tabs that are in this book?  Yes.  Okay.  And there are sub-headings.  This is the third  sub-heading entitled "Loose-Leaf Notes".  The notes  that appear in this binder, do these notes come from  the group of loose-leaf notes that you've made  reference to in your testimony?  Yes, they do.  All right.  Now, the informants that are tabulated or  referenced by tabulation 1 to 19 in this binder, Mr.  Sterritt, are those informants deceased?  Yes, they are.  But on page four it appears as Pat  Cusick and it should be Art Cusick.  I see.  Number 18 on page four.  :  Pat Cusick?  Yes. 7960  N. Sterritt (for the Plaintiffs)  In chief by Mr. Rush  1 Q   And Pat is —  2 A   It's a typo.  3 Q   It should be Art?  4 A   Yes.  5 Q   And is Art deceased?  6 A   Yes, he is.  7 Q   And were the notes recorded on the dates in the  8 entries as indicated beside the name of the deceased  9 person?  10 A   Yes.  11 Q   And the people that are the informants reported in the  12 index, are those people hereditary chiefs?  13 A   Yes.  Martha Himadim, I'm not sure of the status of  14 her name.  She was a knowledgeable person but whether  15 her name was a hereditary chief's name I'm not sure,  16 or at what stage that name was.  17 Q   Apart from Martha Himadim the other chiefs were  18 hereditary chiefs of the Gitksan?  19 A   Yes.  2 0 Q   And you have reviewed the notes that are contained  21 within this volume.  Do those notes reflect the  22 information provided to you by those hereditary  23 chiefs?  24 A   Yes.  25 Q   And are there included within those notes sketches  2 6 which were made by you from the notes?  27 A   Yes.  I should add also Henry Wright did not have a  28 high chiefs name, but he was elderly and  2 9 knowledgeable.  30 Q   All right.  He carried a chief's name?  31 A   No.  32 Q   He didn't?  33 A   No, he didn't.  34 Q   I see.  Now, the type of entries which are indicated  35 here, are they examples of the entries to be found  36 elsewhere in your field books and your journals and  37 loose-leaf notes?  38 A   Yes, they are.  39 MR. GOLDIE:  Excuse me, my lord.  May I ask my friend a question  40 to clarify this.  Does he mean that these are examples  41 of interviews with the people named, or are these  42 exhaustive of the number of times of the interviews  43 with the people named?  I'm not quite sure.  44 MR. RUSH:  Well, I wasn't getting at either of those.  I was  45 asking the witness if notes like these are notes which  46 Mr. Sterritt took in respect of discussions or  47 interviews with other hereditary chiefs or 7961  N. Sterritt (for the Plaintiffs)  In chief by Mr. Rush  Submissions by Counsel  1 knowledgeable people.  2 THE COURT:  Who are not deceased?  3 MR. RUSH:  Who are not deceased, or who may be deceased.  4 THE COURT:  Yes.  5 A   Yes, they are.  6 MR. GOLDIE:  Well, I wonder if my friend could assist me though  7 by telling me whether these purport to be exhaustive  8 of the interviews with these people.  That is to say,  9 are the interviews attributed to David Gunanoot  10 exhaustive of all his interviews?  11 MR. RUSH:  12 Q   Are you able to say, Mr. Sterritt, whether or not the  13 notes that are contained here are in respect of all of  14 the interviews or discussions, information you  15 obtained from Mr. Gunanoot and the other chiefs?  16 A   Not necessarily.  17 MR. RUSH:  Okay.  I'd like to mark that as the next exhibit, my  18 lord.  19 MR. GOLDIE:  My lord, I take it this is tendered under the  20 exception to which your lordship has made a ruling,  21 that is to say as reputation.  In my submission, if my  22 friend is going to submit these then there should be  23 included all of the interviews -- since we are dealing  24 with reputation all of the interviews with the people  25 that he has selected.  It seems to me that it -- it is  26 a necessary corollary if you're going to talk about  27 reputation and you're going to rely upon these notes  28 for the purpose of admitting them that it's incumbent  29 upon the person tendering the notes that everything  30 that falls into the category of an interview with a  31 deceased chief should be included in what is tendered.  32 MR. RUSH:  Well, my lord, firstly, I'm not sure that Mr.  33 Sterritt can say that every piece of information that  34 he has obtained, that he's been able to access, and  35 can say that those are -- that that is in respect of  36 information of these deceased chiefs.  37 But, secondly, the focus here of the notes is in  38 respect of territory, and there are some notes that do  39 not relate to questions of territory, but may relate  40 to questions of genealogy or some cultural feature  41 such as the making of snowshoes or berry cakes which  42 may not be included in this.  And for my purposes I do  43 not think it's necessary in respect of the question of  44 territory to include all of the notes of the deceased  45 chief in order to satisfy the requirements of my  46 learned friend and of your lordship's ruling.  The  47 particular focus is on the question of the territory. 7962  N. Sterritt (for the Plaintiffs)  Submissions by Counsel  1 As far as I'm aware all notes relating to the  2 identification of names, the determination of  3 boundaries, and ownership that relate to territory are  4 included.  5 THE COURT:  Well, if — if one of these witnesses — take the  6 first one, David Gunanoot told them all the things  7 that are in these exhibits, but that in another  8 conversation not exhibited he said, of course, there  9 is a lot of people that don't agree that Gunanoot owns  10 this territory, that would -- that would question the  11 reputation upon which this evidence or the reputation  12 under which this reputation is adduced.  I wouldn't  13 begin -- the question I suppose I have to ask you,  14 gentlemen, is whether that's a matter that falls  15 within the plaintiff's burden or whether it's  16 something that can be left for cross-examination.  17 MR. RUSH:  Well, my lord, it's our position here that the notes  18 here relate to the question of territory.  The notes  19 here in the various catagories of the field books and  20 the journals and the field note or the loose-leaf  21 notes have been disclosed, and it's, in my submission,  22 if my learned friends find that there's a note of the  23 kind that your lordship indicates they can put that to  24 him in cross-examination.  But in my submission we  25 have satisfied the obligations that are on the  26 plaintiffs with respect to satisfying the hearsay  27 exception that has been ruled upon by your lordship.  2 8    THE COURT:  Thank you.  Mr. Goldie.  29 MR. GOLDIE:  I was going to say tentatively ruled upon.  There  30 is a general reserve over the question of reputation  31 evidence.  But my submission simply is that if people  32 are going to rely upon the statement of a person  33 deceased as reputation then it's incumbent upon them  34 to bring forward everything which relates not only to  35 the reputation in terms of the -- of the territory,  36 but everything in relation to even the reputation of  37 the person themself.  I take another example.  Suppose  38 one of these people said in a conversation I am no  39 longer heard at the feast, that would in my submission  40 have a bearing on the weight to be given his evidence  41 of something which is supposed to be generally known  42 throughout the community, but that -- the selection by  43 my friend is limited in the way that he has stated  44 does not in my submission deal with it adequately, and  45 in my submission the burden is on him adequately with  46 the nature with the exception to the rule.  47 THE COURT:  Mr. Macaulay. 7963  N. Sterritt (for the Plaintiffs)  Submissions by Counsel  1 MR. MACAULAY:  I have to support the submissions made by Mr.  2 Goldie, my lord.  It seems to me that one can't make a  3 selection invoking this rule, leaving it to the  4 parties opposed in interest to try to ferret out the  5 missing pieces.  6 THE COURT:  Well, the problem I have with that, Mr. Macaulay,  7 you can help me on this, there may be a huge mass of  8 material and management requires a selection be made,  9 but I don't know if that's this case, but I suspect it  10 may well be, are you saying that the plaintiff can't  11 make a selection at all?  12 MR. MACAULAY:  I'm addressing the 19 people here.  13 THE COURT:  Yes.  14 MR. MACAULAY:  I'm not saying that all notes for all deceased  15 hereditary chiefs, or anything like that, need be  16 made, but if there are -- there's a selection from  17 Albert Tait of 11 items if there is seven or eight  18 more they should be produced.  19 THE COURT:  I understand they have been produced for inspection,  20 it's just they are not included in this collection.  21 MR. MACAULAY:  Yes.  I'm talking about this collection.  22 THE COURT:  My problem is, as I've said, is it seems to me Mr.  23 Gunanoot may have been an old man or he may have been  24 talkative and he may have rambled and there may be all  25 kinds of notes that wouldn't advance this case in any  26 way and counsel have made a responsible selection,  27 which it seems to me they ought to be encouraged to  2 8 do.  29 MR. MACAULAY:  If Mr. Gunanoot in his advanced age started to  30 ramble his ramblings would not be relevant, and  31 therefore not admissible.  32 THE COURT:  Well, it may go to weight.  Is that not a matter  33 that can be brought forward in cross-examination?  34 MR. MACAULAY:  This is going to be put in as an exhibit and  35 relied on as proof.  36 THE COURT:  It's going to be an exhibit, and it's going to be  37 relied upon, but it will only be probative if it meets  38 the test of admissibility.  If I admit this as an  39 exhibit it wouldn't be, and I agree, if any, to which  40 it has any probative value, because it seems to me in  41 order to do that I would have to read every one of  42 these pages and decipher them before I could allow  43 them to be marked, and I don't think that would be a  44 very useful or efficient way to do it.  You see, it  45 may be that -- it may be that none of this has  46 probative value, and it might be the case a great deal  47 more may have less probative value. 7964  N. Sterritt (for the Plaintiffs)  Submissions by Counsel  1 MR. MACAULAY:  I don't think we'll find the answer in this  2 particular thing in any of the text.  3 THE COURT:  No, I don't either.  4 MR. MACAULAY:  But if a selection of chiefs is made up and then  5 every one of those in turn is just a selection  6 throughout the body of material then that process  7 makes the document virtually useless from a probative  8 point of view, because there are two forms of  9 selection.  This isn't all.  My friend doesn't say  10 obviously it isn't every note made of every  11 conversation with every now deceased hereditary chief,  12 and other reliable informant.  13 THE COURT:  I can imagine a trial judge would criticize him if  14 he did that.  15 MR. MACAULAY:  Yes.  And that's not what my submission  16 addresses.  It's the further sifting that makes it not  17 difficult to deal with in cross-examination, because I  18 suppose if there are many things missing we'll find  19 them and in the course of cross-examination it will  20 come out, but material like this as a practical matter  21 will just serve no useful purpose at all if it's  22 refined in two ways rather than one.  That is you  23 select the people and then you select the --  24 THE COURT:  It seems to me the plaintiff is clearly entitled to  25 select people.  I'm not putting any evidence of this,  26 I'm not going to put that evidence at all.  It seems  27 to me with respect to that the only question raised is  28 is the plaintiff entitled to that.  It seems to me --  29 does the plaintiff when he does this process put all  30 the notes in or can he make a selection of this and  31 the ones he thinks are relevant and probative and  32 leave out the ones he thinks are not relevant or not  33 probative, or leave them out for any other reasons?  34 MR. MACAULAY:  If they're not relevant.  35 THE COURT:  If they take it out —  36 MR. MACAULAY:  I agree with my friend a statement is not  37 relevant to what he's trying to prove.  That goes to  38 relevance.  If they have no probative value -- if a  39 statement has no probative value then it's not  40 admissible at all.  I'm addressing the other kind of  41 statement that is both relevant and has probative  42 value, assuming that these are admissible at all, but  43 for some reason, because perhaps they aren't useful to  44 the plaintiffs, are left out.  I don't know if there  45 are any statements like that.  46 THE COURT:  No, I don't either.  47 MR. MACAULAY:  But that's all I'm addressing, that narrow point. 7965  N. Sterritt (for the Plaintiffs)  Submissions by Counsel  1 THE COURT:  I think Mr. Rush has made it clear that he has not  2 included everything, and it may be that he has  3 attempted to exclude material on the grounds of  4 relevancy, but lawyers of goodwill could disagree with  5 what's relevant too, and there may be something in one  6 of my analogies of the witness who was shown to be  7 rambling and perhaps not too reliable.  It seems to me  8 that also is a matter of cross-examination.  That Mr.  9 Rush, if he doesn't think it helpful, surely doesn't  10 have to put it in just to be helpful to the other  11 side.  12 MR. MACAULAY:  I'm really trying to address the other kind of  13 statement.  If somebody was not rambling and comes to  14 Mr. Sterritt later, if there is such a statement  15 later, I was wrong about all that.  I know I told you  16 that.  That's what I told you at the time, but I know  17 now that isn't so.  I'll use an example -- an example  18 of a territory that disappeared.  Your lord, there was  19 a little island that was supposed to be somebody's  20 territory that was described in a territorial  21 affidavit.  Well, that island was found to be based on  22 the existence of a fishing site and a cabin, and it  23 turned out there was no territory there at all.  Well,  24 I assume that, you know, if the chief relied on was  25 one of these you would have to include his earlier  26 statement, whatever that may have been, that induced  27 him to swear that affidavit, and then presumably his  28 subsequent statement to the effect no, I was mistaken.  29 That's not really a hereditary territory of mine.  30 That may have straightened out what is stated.  What  31 I'm trying to get at is better than -- that kind of  32 relevant, very relevant statement by the same  33 informant.  These are deceased people.  We can't get  34 at -- you know, we have no way of testing these  35 statements.  36 THE COURT:  Well, I'd be with you, I think, Mr. Macaulay, if the  37 notes hadn't been produced for inspection so that you  38 have seen the other documents.  39 MR. GOLDIE:  Well, the production is very late, as your lordship  40 has heard, and according to my note two of the  41 documents produced on September 2nd appear -- which  42 relate to David Gunanoot appear to relate to territory  43 and aren't on this list, so.  44 THE COURT:  I'm sorry.  It appears to relate to a territory?  45 MR. GOLDIE:  No.  So far what I have with respect to the  46 material obtained in September, we have a mechanical  47 listing now of who makes the statement and the date of 7966  N. Sterritt (for the Plaintiffs)  Submissions by Counsel  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. RUSH:  the statement and the date when the document was  delivered and one or two comments.  And there's a  document that purports to be a note of a meeting with  Mr. Gunanoot on the 23rd of September, 1987 re field  trip to Bell-Irving second crossing.  Well, that  doesn't appear on the list we have been given so the  advantage of having had these documents produced in  dribs and drabs is not as apparent as the -- as the  rather tidy looking listing on the page one of the  index; journal A, journal B, field book 1, and so on  and so forth.  Initially we just got a lot of loose  pages, and the material delivered in September  includes material that is part of what was delivered  in April but was omitted so it's -- I don't want to go  into this in any great detail, my lord, because I may  have to make a submission to your lordship on the  question of completing Mr. Sterritt's  cross-examination.  All I'm saying is that -- I'm now  repeating myself -- is if this is tendered as an  exception to the hearsay rule on the basis of  reputation then we have to have everything which the  deceased deponent is alleged to have stated in any  form.  And they can make their selection of how many  they want to tender, but if they are going to have a  witness who's going to support the truth of some  matter stated and he's not available for  cross-examination then I say there's a burden on the  plaintiff to produce every statement that it knows of  it.  They may have done so.  We'll do our best to find  out, but my submission is they ought to do it.  The  burden is on them to do it in the first instance.  :  Mr. Rush.  Well, the question of the belated delivery of the  loose-leaf notes has been referred to, and we have  explained the reason for that, but what should be  evident to your lordship is that those notes were  organized by informant and by date, and that is in  respect of all of those notes, and there was a vast  number of those notes that appear in that volume that,  in fact, were disclosed 14 months ago in the form of  the field notebooks, and it doesn't, at least in  respect of my learned friend who now says he has  mechanical aid to assist him to find his way through  each of the entries, doesn't seem to have been so  disadvantaged in respect of those that he is not able  to find and determine which ones on his list are not  included within the volume.  But I say, my lord, that 7967  N. Sterritt (for the Plaintiffs)  Submissions by Counsel  Ruling by the Court  1 we are entitled to make selections in respect of the  2 notes in the various forms in which the notes came  3 based upon our judgment as to the relevance on the  4 question of territory and whether or not it -- there  5 is any value in respect of -- probative value in  6 respect of this aspect of the evidence which is  7 directed to the question of territory.  This is what  8 was done.  There was a sifting, and I can tell your  9 lordship that there are very few notes not included in  10 this volume.  And we made judgments, and I think we  11 were entitled to do that, and if my friend with his  12 aid is -- feels that those judgments bear on the  13 weight of the evidence to be given to the reputation  14 that we say speaks through these notes then he can  15 raise that in cross-examination.  But the task that my  16 friend sets up for the plaintiffs is a task that can  17 never be met.  That's really what he's posing here.  18 And that is that every communication, no matter of how  19 minute a detail, whether it happens by way of an  20 informal personal communication to Mr. Sterritt in  21 respect of a discussion in an automobile or through a  22 second source through another deceased chief be  23 disclosed, it's a task that the plaintiffs can never  24 meet.  And in my submission do not have to meet,  25 because the body of information here submitted on the  26 basis of your lordship's ruling, and on the basis of  27 the Milirrpun decision, in my submission comes within  28 the exception of the hearsay rule.  And we're  29 obligated to bring information to you through, and I  30 think we have done it in a way that, in my submission,  31 is designed to address the hearsay issue on the  32 question of territory.  And, as I say, if my friends  33 wish to cross-examine Mr. Sterritt on their version of  34 the notes, on what they say these notes do not  35 contain, then they can do so.  In my submission this  36 is admissible.  37 MR. GOLDIE:  I should make it clear, my lord, that we don't --  38 we are not talking about every communication.  We are  39 talking about those things which my friend sifted out.  40 THE COURT:  What I am not going to decide is whether these notes  41 are probative of anything.  That will depend upon a  42 consideration of the context of the notes and the  43 circumstances under which the communications were  44 made.  I have tried to make it clear that everything a  45 deceased person may have said about land is not  46 necessarily admissible under the exception to hearsay  47 rule which we are operating under, and I wish 796?  N. Sterritt (for the Plaintiffs)  Ruling by the Court  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR. RUSH:  THE COURT  therefore it to be made clear at this time  essentially, if necessary, that I am not reaching any  conclusions on the relevance or probative value of  these statements, and I will admit them, if at all,  only as evidence of what Mr. Sterritt says these  informants said to him.  And the question of their  usefulness will be for another day.  Having said that, I am with Mr. Rush on this  issue.  I think that he could be criticized if he did  not exercise counsel's judgment in deciding what  should be put in and what should not.  If there are  communications recorded in the form of these notes or  topographic sheets or loose-leaf notes which don't  advance the case in any way then he would be wrong, in  my view, in tendering it.  If he has left out  communications recorded this way which are hurtful to  his case then he will pay the price by having that  kind of selectivity demonstrated on cross-examination.  I think the fact that counsel has to make choices, at  least along the lines I have indicated, is enough to  satisfy me that the plaintiff is not required to put  into evidence every communication that is recorded in  this way, and that cross-examination, as I have said  on a number of occasions, is the greatest machine ever  invented for discovering the truth, will bring to the  light of day anything recorded in this way which has  not been produced.  And I think it might be better if  we proceeded that way rather than on the assumption  that everything that is here -- everything here is --  I'm sorry, on the basis that everything that was  communicated in this way has been included in this  brief.  I think it now being four o'clock we should  adjourn, and you may pursue this matter further when  we resume, Mr. Rush.  Thank you.  :  Thank you.  THE REGISTRAR:  Order in court.  This court stands adjourned.  (PROCEEDINGS ADJOURNED TO SEPTEMBER 20, 1988 AT 10:00 a.m.)  I hereby certify the foregoing to be 7969  1  transcript of the  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  true and accurate  proceedings herein to the best of my  skill and ability.  Peri McHale, Official Reporter  UNITED REPORTING SERVICE LTD.


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