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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1987-06-12] British Columbia. Supreme Court Jun 12, 1987

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 1142  1 JUNE 12, 1987  2 SMITHERS, B.C.  3  4 THE COURT:  Mr. Grant?  5 MR. GRANT:  Yes, My Lord.  Before we proceed, I intend to  6 utilize the video at this point, and I understand that  7 at least Mr. Macaulay has objections, I haven't heard  8 from Mr. Plant respecting that, and I wonder if we  9 could deal with that now.  I don't know what the nature  10 of the objection is.  They have the video, the  11 transcript of the speech given in the video.  12 THE COURT:  Well, perhaps you could just state briefly for the  13 record what it is you propose to do or what it is the  14 video purports to represent.  15 MR. GRANT:  Yes.  You have heard evidence from this witness with  16 respect to the k'ots gan or the cutting ceremony, and  17 this video is an 18 minute video of that actual  18 ceremony.  It's my submission that it is the best  19 evidence of the actual event that occurred.  During the  20 course of this video --  21 THE COURT:  I'm sorry, what is the event again?  22 MR. GRANT:  It's the k'ots gan or the pole — it's the first cut  23 of the pole.  24 THE COURT:  Oh, yes, yes.  25 MR. GRANT:  And this is with respect to the pole of Hanamuxw.  26 You have heard evidence about what occurred there, and  27 this is the actual event with the participants there,  28 which was recorded by way of video.  The video --  2 9 THE COURT  3 0 MR. GRANT  31 THE COURT  32 MR. GRANT  33 THE COURT  34 MR. GRANT  And that took place when again please  9  It took place on April 19th of this year.  And whereabouts?  In Hazelton --  Yes.  All right.  -- where the pole was located, new pole that is  35 being carved.  The video, I will say, has two parts.  36 One is a -- one is the actual -- a scan of the poles,  37 and at that point the sound is -- there is no sound  38 accept background sound.  And then the second part is  39 the chiefs and what they do in front of the pole, and  40 three chiefs speak and two sing songs, and the three  41 that speak, those speeches are recorded -- have been  42 translated and transcribed and transcripts have been  43 provided to my friends.  And the songs have not been  44 transcribed, although I certainly don't object to  45 having them transcribed.  The reason why is that songs  46 were -- were done during some of the commission  47 evidence, and at no time up to now has -- none of those 1143  1 times did either of the defendants request translations  2 of those songs, but the -- and then the ending of the  3 ceremony is with respect to the giving out of the  4 implements.  5 THE COURT:  Do the persons portrayed on the video speak in  6 English or in --  7 MR. GRANT: In Gitksan.  And the — it's been translated and  8 transcripts have been provided of their speeches, and  9 they -- it's, of course, the event -- the video is  10 being tendered to show what actually occurred at the  11 event, and it's my submission that it's the best  12 evidence of the event in fact because it's -- and it  13 also -- and I want to make this comment, My Lord, is  14 that -- that in earlier evidence I considered the  15 utilization of videos of actual events that were  16 described by the witness, but made a judgment, as  17 counsel, that it would be easier and not that -- not  18 that much more assistance to the court just to have the  19 witness describe the event.  So as counsel, I have gone  20 through an editing process, in terms of presentation,  21 and this is one of the few where this actual event is  22 recorded.  It's brief, and I submit that it would be --  23 it will ultimately give the Court an insight into what  24 this witness has described.  25 THE COURT:  All right.  For what purpose is the evidence  26 tendered?  27 MR. GRANT:  The evidence is being tendered as evidence of what  28 occurred at the actual event, as evidence of the event.  29 THE COURT:  What does -- for what purpose is the evidence of the  30 actual event tendered?  31 MR. GRANT:  The evidence of this event is tendered to show the  32 present practise and to demonstrate the method of  33 instilling the dax gyet into the pole, which is an  34 important part of the evidence of this witness and also  35 an important part of her ultimate evidence, as the  36 whole is a central aspect of the Gitksan system and a  37 central aspect of the use of the issues in the case,  38 that is with respect to the jurisdiction of the chiefs.  39 And I think that the evidence has shown the centrality  40 of the pole as one key component, and this witness has  41 given extensive evidence of the pole raising itself.  42 THE COURT:  It is your intention, if I decide to see the  43 presentation, that it will be run without  44 explanation -- without extraneous explanation by  45 counsel or witness?  46 MR. GRANT:  What I intended to do, and we have practiced with  47 the system here, was I was hoping at one point to have 1144  1 it be able to be paused, for example, when the people  2 first are there, so that the witness could identify the  3 people, who they were, but because system is one that  4 you can't see when it's put on pause, so I think the  5 best way probably will be to show it in its entirety  6 and then to ask the witness about it.  7 THE COURT:  All right.  I'll hear from your friends.  I'm sorry,  8 if you're finished, I'll hear from your friends.  9 MR. GRANT:  Subject to what they have to say.  I'm not sure what  10 their position is.  11 THE COURT:  All right.  Mr. Plant or Mr. Macaulay?  12 MR. PLANT:  My Lord, I object to the introduction of this  13 evidence for two reasons.  First, because it is hearsay  14 and it lies outside the category of any exception to  15 the hearsay rule; and secondly, because -- and I am  16 going to be enlarging on that point in a moment --  17 secondly, because the video has not been produced for  18 discovery or on discovery in accordance with the  19 provisions of Rule 26, and therefore may not be used at  20 the trial.  I propose to enlarge briefly on those two  21 points.  22 The video consists primarily of statements by three  23 persons.  One of them, Mr. Fred Johnson, has been in  24 attendance in court all week and was identified by this  25 witness, Mrs. Ryan, earlier in her testimony as being  26 present in court.  The second, Mr. Solomon Marsden,  27 will, we are told, also be called as a witness in due  28 course.  The third individual, Mr. Stanley Williams,  29 appears, from the -- my viewing of the tape at any  30 rate, to be perfectly competent to testify.  There is  31 no suggestion of incompetence or incapacity raised in  32 respect of the other two individuals, and therefore, in  33 my submission, the test of necessity, which is an  34 important component of any exception to the hearsay  35 rule, is not met.  36 THE COURT:  Well, Mr. Plant, if I revert to my example about the  37 horse race, on the basis you have just submitted,  38 seeing the event in video would have been precluded by  39 the possibility that the riders themselves would be  40 called as witnesses, wouldn't it?  41 MR. PLANT:  Yes.  Unless it could be demonstrated that the  42 recording of the video was -- that the information in  43 the video was sufficiently valuable to override the --  44 well, no, I suppose the problem I have is this, that if  45 my friend is tendering it for the evidence that the  46 event occurred, then that's not the -- that doesn't, in  47 my submission, constitute the hearsay problem. 1145  1 THE COURT:  I wouldn't have thought so.  2 MR. PLANT:  The hearsay lies with the statements that were made,  3 and my reading of those statements, as provided to me  4 in the translation of the statements which my friend  5 has given to me.  If my friend -- I assume my friend  6 is -- part of his purpose here is to tender this for  7 the truth of the statements which are being made by the  8 individuals.  If it's only being tendered to show that  9 the event occurred, we already have that evidence.  And  10 my submission, the video will add nothing to Your  11 Lordship's determination of that event.  12 My concern is that the -- there are three witnesses  13 who are being asked to speak, or rather who will speak  14 on this video who will make certain statements about  15 the laws and the customs of the people.  Those  16 statements cannot be tested under cross-examination, if  17 what we get is the video, because the witnesses  18 themselves are not before the Court.  Now, maybe that  19 one solution to that problem would be to play the video  20 without any sound, and that is -- if my friend is  21 prepared to do that, then subject to Your lordship's  22 determination of the question of whether it would be of  23 any assistance to the court, I would have no objection  24 to it.  My principle concern with -- is the statements  25 that are made by the three individuals who speak during  26 the course of the presentation.  27 THE COURT:  Well, perhaps I can cut through the difficulty here.  28 I don't know if I can.  Very often when I interrupt  29 counsels' submissions I found it better if I hadn't.  30 But maybe I can ask Mr. Grant if he is tendering the  31 evidence, including the statements made in the  32 presentation, for -- as proof of the truth of the fact  33 stated.  34 MR. GRANT:  I am tendering the evidence of the video for -- to  35 show -- to prove the actual event that occurred.  With  36 respect to the statements, the video will only show  37 that those statements are made.  3 8 THE COURT:  Yes.  39 MR. GRANT:  I will be asking this witness about the -- those  40 statements, as far as she is concerned, that is -- but  41 only -- but she -- that is what -- if she has anything  42 to say about what was said there, but that's only as  43 far as she is concerned.  With respect to the persons  44 that make the statements, two of those persons will be  45 on the stand and will be giving evidence, but it's not  46 for the -- I agree that -- I can't put this video in to  47 prove the truth of the statements made in the video and 1146  1 bypass cross-examination, I am not trying to do that.  2 It's like, as you say, the horse race, is that -- and  3 is that it's the event, and if somebody says something  4 on the video, then it shows they said something and  5 that's as far as I can go with the video.  6 THE COURT:  All right.  Thank you.  Mr. Plant.  7 MR. PLANT:  On the basis of my friend's statement, I take it he  8 would have no concern about turning the sound off.  9 MR. GRANT:  Well, of course I do.  It's part of the event.  It  10 is like if —  11 MR. PLANT:  Exactly, My Lord.  12 THE COURT:  Just a moment, just a moment.  Let's refine the  13 question even more.  Is it part of your case, Mr.  14 Grant, that I should know the translation?  15 MR. GRANT:  Yes.  16 THE COURT:  Of the words used?  17 MR. GRANT:  Yes, you should know what is said.  18 THE COURT:  I should know what is said.  Why should I know what  19 is said, if it doesn't prove anything?  20 MR. GRANT:  Because it is part of the event.  It is a very  21 important part of the event, what is said.  22 THE COURT  2 3 MR. GRANT  2 4 THE COURT  I see.  It is like if --  Well, the example, if there had been a microphone in  25 the jockey's lapel as the race reached it's denouement  2 6 and he had said "He's crowding me.  He's crowding me  27 into the rail", that obviously wouldn't be admissible  28 for any purpose, would it?  29 MR. GRANT:  Let me put it more on the context of what I think  30 would happen.  If on the video of the horse race -- and  31 not knowing exactly the event -- there was the sound of  32 a crash or something, a smashing sound, that would be  33 part of the event, and it would be important for you to  34 hear that sound.  35 THE COURT:  Even if he is crowding him over, it might have been  36 admissible as an excited utterance.  Yes.  As the hearsay rule continues to be refined.  So what I don't want is that the Court is required  to effectively, by turning the sound off, plug its  ears, but I must say that at the beginning I will want  the sound turned off because it's a loud buzzing noise  which I think will be irritating.  :  Your friend wasn't so unkind to suggest that I  should sit here like one of the mythical monkeys with  my hands over my ears with my eyes wide open.  :  What I am worried about is that's the implication of  37  MR.  GRANT  38  THE  COURT  39  MR.  GRANT  40  41  42  43  44  THE  COURT  45  46  47  MR.  GRANT 1147  1 turning the sound off.  2 THE COURT:  Yes.  Mr. Plant.  3 MR. PLANT:  Well, with respect, as I understand my friend's  4 submission, is he wants to hear the statements made  5 because they are important, and I read that as being  6 evidence being introduced in some respect because  7 content of the statements is important; in other words,  8 he wants Your Lordship to hear what the chiefs have  9 said on this occasion, and the proper way to do that,  10 in my submission, is to call those individuals.  11 If Your Lordship hears the statements made on the  12 video, we are not given an opportunity to test the  13 circumstances under which they were made or any other  14 aspect of the evidence, and there is no, if I may put  15 it, a subsidiary problem, and that is that on my  16 reading -- and I'm in a difficult position, in that my  17 friend hasn't indicated to Your Lordship how he  18 proposes to prove the translation -- but as I follow  19 the video, the translation is incomplete.  That is to  20 say only part of the statements made are translated in  21 the script that was provided to me; and secondly, it  22 also appears to me that there are statements made by  23 persons at the gathering which are not picked up  24 because of the microphone.  I might add for Your  25 Lordship that this is entirely self-serving evidence.  26 The event itself occurred approximately two and-a-half  27 years after the action was commenced, and although that  28 may go to the question of weight rather than the  29 question of admissibility, the -- if the evidence is  30 incapable of having any probative effect, then it not  31 ought to be admitted.  32 There is a second aspect of my position, which I  33 would like to state, and Your Lordship is aware of the  34 provisions of Rule 26(14) and the consequences where a  35 party fails to disclose a document in a timely manner,  36 but my concern is this:  I say that under that rule  37 that leave should be granted to adduce evidence where  38 there is a cogent reason offered for non-disclosure in  39 a timely way, and none has been offered here.  And  40 secondly, where the evidence is of such importance that  41 if leave were refused, it would seriously prejudice the  42 plaintiff's case.  I say that that hasn't been  43 demonstrated here either.  The witness has testified as  44 to the events which occurred, and in my submission the  45 video will add little or nothing to that evidence,  46 other than in some respect to insulate certain parts of  47 the event from cross-examination and really to subvert 1148  1 the hearsay rule in the following way.  The witness  2 right now would be unable to say what the three chiefs  3 said at the ceremony, so my friends propose to  4 circumvent that difficulty by placing a video camera at  5 the event and then playing the video tape.  6 There is the real possibility of prejudice to the  7 defendants.  We haven't taken a position on any of the  8 documents which my friend has produced to date,  9 although with the exception of some of the photographs,  10 none of the documents which the plaintiffs have  11 produced on this trial were disclosed prior to the  12 trial.  This, however, is an instance where prejudice  13 may be real.  In the first place, we don't have any way  14 yet of testing the accuracy of the transcript; and in  15 the second place, the transcript is incomplete; and in  16 the third place, the tape has been edited and we  17 haven't been yet offered an explanation for the gaps in  18 the sequence that appear when you look at the video.  19 The question is, where do you draw the line in  20 that -- in Your Lordship's exercise of your discretion  21 under Rule 26(14).  The only sanction for  22 non-disclosure is non-admission, and I invite Your  23 Lordship also to consider that in terms of prejudice,  24 the only statement made in the witness -- the summary  25 of evidence which was delivered to us concerning the  26 evidence of Mrs. Ryan, was that Mrs. Ryan -- I quote:  27 "Mrs. Ryan will testify about Hanamuxw' pole raising in  28 1987."  Well, that's Mrs. Ryan who is going to give the  29 evidence, and there is no suggestion there that we are  30 going to be asked to see a TV show.  So I am reluctant  31 to push the point about Rule 26(14), but I will do  32 this.  I will leave it for Your Lordship's  33 consideration because at some point the line is going  34 to be crossed where the prejudice to the defendants or  35 at least to my client, the Province, becomes, if not  36 overwhelming substantially.  37 So I stand by the position I expressed earlier,  38 that if my friend is prepared to turn the sound off, I  39 have no objection to seeing the video, although I think  40 it -- I can say it adds nothing to the evidence which  41 has already been given.  But if, as I understand my  42 friend's position, he wishes to have the sound on  43 because it's important to hear what the chiefs said,  44 then I stand by the objection.  45 THE COURT:  Thank you.  Mr. Macaulay?  46 MR. MACAULAY:  My Lord, our objection in this is of a similar  47 nature as the objection expressed by the Province.  It 1149  1 is not to the video itself, that is the picture, it's  2 to the statements, the assertions made.  Now, we have a  3 translation, and I didn't realize 'til my friend spoke  4 this morning that the translation wasn't a translation  5 of the whole event because I wasn't able to follow,  6 while I watched it, what was being said.  Such  7 translation as we have contains assertions of laws and  8 the effect of laws that go to the very root of the  9 questions that are -- will have to be decided by Your  10 Lordship at the end of the trial.  There is no rule of  11 evidence that I know of that could possibly permit that  12 kind of evidence to go in.  This is not -- it's very  13 much unlike the horse race.  This is not a film done  14 ante motam litem, to use the words referred to in  15 Wigmore, this is a -- the whole thing is an assertion  16 of jurisdiction and of ownership and the like.  In  17 rather broad terms, but it's there.  18 Now, if my friend seeks only to prove that the  19 event took place, that fact isn't contested.  I am  2 0 prepared to admit that the event -- the ceremony did  21 take place and in the presence of certain chiefs, and I  22 am prepared to admit which chiefs were present, but the  23 assertions by the chiefs in those circumstances aren't  24 admissible.  There is no exception to the hearsay rule  25 under which Mr. Grant was able to bring this in.  26 Perhaps it might be different if the three speakers  27 were to give evidence, it might then be in a different  28 position, but if those three speakers do give evidence,  29 the fact of their having made the statement at some  30 earlier time, that is earlier this year, isn't really  31 relevant.  32 THE COURT:  Thank you.  Mr. Grant?  Before you start, let me  33 just tell you that I'm -- I have in the back of my mind  34 that the problem that you will have to deal with -- why  35 is the -- what is your answer to Mr. Plant's statement  36 that the film in the audio seems to have been edited?  37 MR. GRANT:  With respect to the film itself, the entire video  38 was 26 minutes long.  I had requested both of my  39 learned friends, if they would reach me last night, as  40 to the grounds of their objection, and the rest -- the  41 other eight minutes is -- is scenes of people getting  42 out of cars -- it's -- and this kind of thing, and  43 there is one point where he made note that there was an  44 edit where the speaker handed the microphone to someone  45 and then took it back, and I think it was a little --  46 it probably was a jog there, but the -- there was eight  47 minutes taken off, which was basically panoramas, you 1150  1 know, around, and just was not part of the event.  2 THE COURT:  Was it —  3 MR. GRANT:  The entire event itself was filmed.  4 THE COURT:  Was the editing done by counsel, in the sense of the  5 decision as to what part to excise and what part to  6 leave in?  7 MR. GRANT:  Yes, counsel reviewed the film, and it was only  8 because I didn't want the Court to spend five minutes  9 watching people get out of cars.  10 THE COURT:  And you are satisfied that nothing of substance has  11 been deleted?  12 MR. GRANT:  Nothing of substance has been deleted in the video  13 version, and the full -- the extra eight minutes is  14 available for either of my friends to see, if they wish  15 to.  The other -- but of course that was -- I didn't  16 know that that was a concern they had until this  17 morning.  The other problem --  18 MR. PLANT:  Well, I didn't get a chance to see the video until  19 last night.  It's a very strange business to be --  20 THE COURT:  — it's your friend who is late, Mr. Plant, not you.  21 MR. GRANT:  Yes.  With respect to the — that's, of course, why  22 I was concerned.  If there was any other grounds for  23 objection, that I ask them to reach me, and I was  24 available last night.  But in any event, with respect  25 to the sound, that the translation, on a review of it  26 there are -- as I said, there are the songs which  27 nobody -- no counsel -- although songs have been given  28 by witnesses on commission evidence, no one has ever  29 requested a translation of the songs before.  30 The second point is that at the end, where the --  31 where these things are given out, there is some --  32 where these gifts are handed out, there is some  33 conversation.  I have absolutely no -- my view is that  34 that conversation is -- it's sort of -- it's not really  35 relevant to the event.  It's the event that I am  36 concerned the Court sees.  But, if my friends are  37 concerned, I have absolutely no difficulty with  38 ensuring that that -- those comments are translated.  I  39 don't need them for the direct evidence.  I could have  40 them available before any cross-examination starts, and  41 I have no problem with that at all.  I thought that  42 they had been transcribed originally, and I just -- it  43 came to my attention later on that they hadn't been.  44 But that's, you know, statements of people giving  45 this -- and I'll just tell you what the principle part  46 of it is.  One of the chiefs is a man who is blind and  47 he felt the gift and he commented on what it was. 1151  1 That's the kind of thing, and it was explained to me,  2 and again I didn't feel that that was a relevant part  3 of the event, but again I have no problem with  4 arranging for that to be translated, and there is no  5 attempt here to edit out the substance.  The concern  6 about -- of course the purpose of it is that I think  7 there is no better way than for the Court to see the  8 event, and the event is what I am asking the Court to  9 see.  10 THE COURT:  All right.  Well, why wasn't this given to your  11 friends in a timely way?  12 MR. GRANT:  Well, as I indicated to the Court eariler, this  13 individual video tape -- I had not seen this video tape  14 until early this week.  There is an  -- there has been  15 an agreement and there has been an ongoing exchange of  16 document lists by all counsel right up, actually,  17 through the last four weeks, and this -- what I was  18 concerned about, when I raised it, was that did I get  19 the video to them, and counsel indicated that they  20 didn't want -- they weren't going to look at the video  21 until they had the transcript, so I -- which was --  22 counsel for the Province and Federal government --  23 which was reasonable, as far as I was concerned.  So I  24 endeavored to expedite getting that transcript -- that  25 translation done for them so that they could see the  2 6 video.  27 THE COURT:  When did you offer the tape to your learned friends?  28 MR. GRANT:  I mentioned this, I believe -- it was on Wednesday  29 morning I advised the the Court, and I had copies  30 delivered to them on Wednesday evening.  31 THE COURT:  But the rule requires — is it 14 days?  32 MR. GRANT:  As I say, I hadn't seen the video until the  33 beginning of this week, and, I mean, the -- and the  34 other point is this, is that the persons that are in --  35 THE COURT:  Did you know about it, Mr. Grant?  36 MR. GRANT:  Did I know of its existence?  37 THE COURT:  Well, when did you decide you were going to adduce  38 it?  39 MR. GRANT: Well, in the review of this witness's evidence, with  40 this witness, is when I decided I would do so.  41 THE COURT:  Well, can you put a time or —  42 MR. GRANT:  I was working continually with this witness both  43 before and during the last week, but it was during the  44 latter part of last week that --  45 THE COURT:  What is the the time limit, Mr. Plant, under the  46 rule?  47 MR. PLANT:  I'm not — I was looking for the rule last night, I 1152  1 couldn't find it.  2 MR. GRANT: 7 days.  3 MR. MACAULAY:  If it's classified as a photograph or diagram, it  4 is, but we have something a little different here.  5 THE COURT:  Yes.  6 MR. GRANT:  Videos, I think, generally come under the  7 photograph.  8 THE COURT:  Oh, yes, I would think so.  Well, I have heard lots  9 of arguments by lots of lawyers that say that if there  10 is the slightest failure to comply with those kinds of  11 requirements, that the only sanction is  12 non-admissibility, and certainly that's the position  13 that's been taken frequently with respect to Charter  14 rights and things like that, that the response to  15 non-compliance with those sorts of requirements is to  16 reject the evidence.  Is there anything else that you  17 think you want to say about that, Mr. Grant?  18 MR. GRANT:  Well, yes, the -- there is a couple of points I want  19 to say about it.  The reason I wish to -- I mean, the  20 reason I wish to adduce this individual video now,  21 while --  22 THE COURT:  I'm not suggesting this is an analogous to a Charter  23 case or anything like that.  24 MR. GRANT:  Yes.  It is with respect to the pole raising that  25 this witness has described it.  The reason I take  26 exception to the concern my friends say -- or I  27 disagree, I say, with respect to the position taken  28 that this prejudices them because as I have said, two  29 of the three persons who are speaking will be on the  30 stand, and given that the next space of evidence is  31 Wet'suwet'en evidence, they will be on the stand some  32 months from now.  Both counsel have the transcript and  33 the video and will have ample opportunity to either  34 have it reviewed, to see if they disagree with the  35 translation and/or to cross examine those witnesses  36 when they are on the stand, but within the context of  37 it -- of this witness's evidence, I -- it appears to me  38 that it's most appropriate that this depiction of this  39 event be provided to the Court at this time, while this  40 witness is on the stand, and that's the submission I  41 wish to make.  42 You know, as I say -- I wish to say that with  43 respect to documents there is ongoing lists and  44 production of documents going on now.  These include,  45 for example, photographs that -- copies of which are  46 provided to my friend, which again came to my attention  47 more recently, that are in a supplementary photo book 1153  1 and on other like documents.  Also, of course, I don't  2 anticipate -- given the nature of the application this  3 afternoon, I anticipate I will be finished direct on  4 Monday of this witness, and so that they will have more  5 opportunity to review it for cross.  6 So effectively they would have had -- by that time  7 they would have had not the 7 days but they would have  8 had disclosure of the video, I think, about five days  9 ahead.  And I am going from memory of their  10 cross-examination.  11 THE COURT:  All right.  Thank you.  12 Well, I'm not persuaded by Mr. Plant on the hearsay  13 aspects of the matter.  I think if the video is  14 admissible at all, it's to depict the event and the out  15 of court statements made by persons shown in the video  16 is not admissible to prove the truth of any of the  17 facts they state, but it may be that the way they speak  18 and the time they speak in relation to the ceremony  19 could have some evidentiary value, apart from the  20 meaning of the words actually uttered, and for that  21 reason it's my view that the hearsay rule does not  22 preclude the admission of the tape or the showing of  23 the tape.  24 I think that I am able to disregard the literal  25 meaning of the words used, and it's for that reason  26 that I would not require the sound to be turned down so  27 as to be inaudible.  I'm not sure that there is any  28 value in having a translation of the words that are  29 used.  I am going to allow the transcript to be filed  30 along with the tape but only for identification, in  31 case I am in error in the conclusion I have reached.  32 The literal meaning of the words is not an  33 admissible -- is not of any evidentiary value.  34 I am much more troubled by the failure to furnish  35 this tape and translation timiously.  It seems to me  36 that there is a distinction between ongoing production  37 of documents, which is much to be desired, because it  38 affects the immediate conduct of a case, and I think  39 that the greatest care must attend that important  40 function.  That is a function that transcends counsels'  41 responsibility to his client.  It's part of the  42 function of the court that there will be a timely  43 exchange of those documents, and then it's part of  44 counsels' responsibility to see that that rule is  45 followed.  Notwithstanding that, and on this occasion  46 I'm not going to stand or I'm not going to give effect  47 to counsel's objection on delay in the production of -- 1154  1 or disclosure of the document.  I think that I should  2 say, however, in the strongest possible terms that I  3 would not look so leniently on a second failing of this  4 kind on either side, and I think that now that this  5 trial is well underway, there should not be that kind  6 of delay in the production of either in the decision  7 about what evidence will be adduced or in the  8 production of the documents.  9 I reach this conclusion reluctantly because counsel  10 generally, not just in this case, are forever  11 criticizing the Court for being lenient in the  12 enforcing of the rules, and when they make those  13 statements, of course, they are not dealing with the  14 need to try and keep an even balance between parties at  15 trial, but I think I can bear the criticism of the bar  16 about the failure of the court to enforce the rules as  17 strictly as some counsel think we should when we are  18 dealing outside the heat of battle -- dealing with the  19 question outside the heat of the battle.  20 I am going to allow the transcript to be filed as  21 an exhibit for discovery, the tape to be filed as an  22 exhibit, and the presentation, in its present form, to  23 be shown.  I think it should be shown without  24 interruption or extraneous comment by witness or  25 counsel, and counsel can then decide whether it's  26 necessary to show any part of it again and to stop the  27 tape for viva voce evidence from the witness.  Are you  28 ready to proceed with that now, Mr. Grant?  29 MR. GRANT:  Yes, I am.  30 THE COURT:  All right.  Let's get on with that please.  31 MR. GRANT:  The copy of the transcript provided to —  32 THE COURT:  I don't need to see it.  33 MR. GRANT:  I'll have the casing marked.  And just for the  34 record, it's labelled "Hanamuxw Pole 1987 first cut  35 ceremony, April 1987".  36 THE COURT:  Is it possible for you to tell me in advance, Mr.  37 Grant, who the people are that I will see in this  38 statement?  39 MR. GRANT:  Yes.  I am trying to remember the order.  The order  40 of speaking, the first person that will speak is Fred  41 Johnson, whose chief name is Lelt, L-e-l-t.  He speaks  42 and then sings a song.  Number 40 on the plaintiff's  43 list.  4 4 THE COURT:  Thank you.  45 MR. GRANT:  The second person to speak is Solomon Marsden, whose  46 chief name is Xamlax yeltxw.  47 THE COURT:  He just speaks? 1155  1  MR.  GRANT  2  3  4  THE  COURT  5  MR.  GRANT  6  7  THE  COURT  8  MR.  GRANT  9  10  THE  COURT  11  MR.  GRANT  12  THE  COURT  13  14  15  MR.  GRANT  16  THE  COURT  17  THE  TRANS  18  THE  COURT  19  MR.  GRANT  20  21  22  23  THE  COURT  24  MR.  GRANT  25  THE  COURT  26  MR.  GRANT  27  28  THE  COURT  29  MR.  GRANT  30  THE  COURT  31  32  33  MR.  GRANT  34  35  36  THE  COURT  37  MR.  GRANT  38  39  40  THE  COURT  41  MR.  GRANT  42  THE  COURT  43  44  MR.  PLANT  45  46  THE  COURT  47  :  He speaks, he sings a song.  He speaks further and  he sings a second song.  And the third person to speak  is Stanley Williams, Gwis gyen, number 22.  :  Just a moment please.  :  The witness is visible as well.  She's on -- she was  present.  :  She doesn't speak or take any part in the ceremony?  :  She stands behind -- is standing behind these  persons.  I didn't get Stanley Williams name.  22, Gwis gyen.  Wait at minute.  I have that.  That's -- no, I  don't.  How is that spelt please?  I don't have my list  for some reason.  I don't know where it went.  :  G-w-i-s.  :  G-w-i-s.  LATOR: G-y-e-n.  :  G-y-e-n.  All right.  Thank you.  :  And the last person doesn't -- Stanley Williams does  not sing a song, and then the next part of it you will  see will be the presentation of these -- what's called  dax 'winsxw, like a carving tool.  Of a gift?  They are given to each of these chiefs.  And presented by?  Not by the witness but by a member of the witness's  House.  All right.  Thank you.  All right.  Thank you.  I'm not sure if I --  What have you arranged?  Viewing on the large screen  for counsel and the body of the court and another one  for myself?  :  I understand from the clerk that both television  units are hooked up to this machine, so you will see it  and as will counsel.  :  Right.  : And I'm wondering, if possible, I could have -- I'll  maybe move my chair around and the witness can then see  it here.  Yes.  And the interpreter.  The witness can position herself any place that is  is comfortable for her.  :  If the witness would like to sit at the end of this  table, I can move.  :  She can join the table of the Attorney General.  Mrs. Ryan, do you want to sit over there where you can 1156  1 see the screen?  You go over and sit over there, Mrs.  2 Ryan.  You too, Mr. Interpreter, you are excused if you  3 wish.  Madam Translator, do you want to go?  4 You can come over here if you want or I can turn it  5 slightly.  6 Should we dim the house lights, Mr. Grant?  7 MR. GRANT:  I would be leery of that.  It is in Gitksan and  8 sometimes when Gitksan is spoken, those who don't  9 understand it, it's hard to stay awake.  10 THE COURT:  Common problem in some of these trials.  11 MR. GRANT: Now, as I say, maybe the sheriff can be sure the  12 sound, as I say, at the beginning is off.  I don't know  13 if the others can see it.  14 THE COURT:  Well, anyone who can't see it can move to a new  15 position.  16 MR. GRANT:  Well, I mean with the lights.  17 THE COURT:  These things never work the first time.  18 One other thing.  Madam Reporter, you are not  19 required to take any of this down, even if you could.  20 MR. GRANT:  I'm afraid to go fast forward, should the sound be  21 turned up.  I was afraid of the buzzing, but maybe it's  22 just the machine we were watching on.  It seems to be  23 all right on this copy here.  24  25 (VIDEO TAPE PLAYED)  26  27 MR. GRANT:  My Lord, I think it may be appropriate -- you can  28 stay there, Mrs. Ryan, for a minute.  You can stay  29 where you are, okay.  It may be appropriate if I just  30 ask the witness as to who the other persons were that  31 were present.  32 THE COURT:  All right.  And I'll stop it at a certain point.  33  34 (VIDEO TAPE PLAYED)  35  36 MR. GRANT:  Now, what I propose is possibly I could pause at a  37 certain point and then I could ask the witness a  38 question about that, if that's appropriate.  39 THE COURT: Okay.  4 0 MR. GRANT:  41 Q  Just ask if you -- I'll stop it and then ask you  42 questions about certain parts of it, okay?  43 A  Yes.  44 MR. GRANT:  I wonder if there is any problem with that, Madam  45 Reporter.  46 MR. GRANT:  I'll just ask you — I'll stop it and then I'll ask  47 certain questions about it, okay? 1157  1 THE COURT:  I wonder, Mr. Grant, if there is any problem with  2 this, when you reach the place -- I wouldn't  3 think there would be much difficulty or dispute about  4 this, if your learned friends don't object -- you could  5 perhaps state who they are.  6 MR. GRANT:  Well, I'll start at this point.  7 Q   This scene here is the new pole that is being carved?  8 A   Yes.  And this is the old pole that you described yesterday?  Yes.  In this scene here, this is a -- the opening scene of  the -- on the video.  The person speaking is Fred  Johnson, is that right?  Yes.  Lelt.  The other man in the blanket is Solomon Marsden?  Xamlax yeltxw.  The man behind on the far left of the screen, that is  Gwis gyen?  Gwis gyen.  And the younger man in front is your grandson?  Yes.  Andy Clifton?  Yes.  And he's a member of the Hanamuxw House?  Yes.  And the other -- the man with the microphone is your  son, Don Ryan?  Yes.  Who is 'Maas?  'Maas gaak is in your House?  Yes.  And you are also in this scene behind Fred Johnson?  Yes.  There are other persons in here that I wish to  identify.  This person on the far right of the screen,  who becomes visible later, a man with a white hat, who  is that?  Hak'w.  And that is?  Roy.  Roy Harris?  Harris.  Just getting this system down. Do you recall when  the -- the video shows the bottom of the new pole?  Yes.  Is Solomon then speaking about that part of the pole?  Yes.  The woman in the red coat behind Gwis gyen when he is  9  Q  10  A  11  Q  12  13  14  A  15  Q  16  A  17  Q  18  19  A  20  Q  21  A  22  Q  23  A  24  Q  25  A  26  Q  27  28  A  29  Q  30  A  31  Q  32  A  33  Q  34  35  36  37  A  38  Q  39  A  40  Q  41  A  42  Q  43  44  A  45  Q  46  A  47  Q 115?  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  MR.  THE  MR.  THE  MR.  A  Q  A  Q  A  speaking, Stanley Williams, is that your daughter,  Barbara?  Yes.  And she's a member of the Hanamuxw House as well?  Yes.  Now, the two other women in the picture at the far  right, just briefly shown, the one in the red blanket  is?  Xam lax yeltxw, Kathleen Marsden, Solomon Marsden's  wife?  Yes.  And the other woman is Hak'w?  Fanny Williams.  And she is?  Of the Frog clan.  Of the Frog clan.  What's the name please?  Fanny Williams, Sinankxws.  Have you finished, Mr. Grant?  I have finished with the video itself.  Well, perhaps we should take the morning  adj ournment.  GRANT:  Yes, okay.  (PROCEEDINGS ADJOURNED)  I HEREBY CERTIFY THE FOREGOING TO BE  A TRUE AND ACCURATE TRANSCRIPT OF THE  PROCEEDINGS HEREIN TO THE BEST OF MY  SKILL AND ABILITY.  LORI OXLEY  OFFICIAL REPORTER  UNITED REPORTING SERVICE LTD.  A  Q  A  Q  A  Q  COURT  GRANT  COURT  GRANT  COURT 1159  1 THE REGISTRAR:  Order in Court.  2 THE COURT  3 MR. GRANT  4 THE COURT  5 MR. GRANT  9  Mr. Grant, have you tendered the tape  Yes.  I tendered the tape.  All right.  And the transcript, and I would suggest that the  6 tape -- I think it's Exhibit 30.  7 THE COURT:  Yes.  All right.  8 MR. GRANT:  And the transcript be Exhibit 30A.  9 THE COURT:  All right.  The tape will be Exhibit 30 and the  10 transcript 30A for identification.  11 (EXHIBIT 30:  Video tape)  12 (EXHIBIT 30A FOR IDENTIFICATION:  Transcript of video  13 tape)  14 MR. GRANT:  A for identification.  The tape is an exhibit  15 proper.  16 THE COURT:  All right.  Thank you.  17 MR. PLANT:  I wonder if my friend's in a position to advise the  18 Court as to who did the translation.  It's sort of hard  19 to --  20 MR. GRANT:  Yes.  It was supposed to be on the transcript.  I  21 believe it is Kate Ludwig.  I will confirm that at noon  22 hour.  She is one of the proposed translators.  2 3 THE COURT:  Thank you.  2 4 MR. GRANT:  25 Q   I believe the tape is in the machine.  I can't get it  26 out.  What I'd like to ask you, I'd like to ask you a  27 few questions about that event.  That occurred on April  28 19th of this year; is that right?  29 A   Yes.  30 Q   And why was Lelt or Fred Johnson the first speaker?  31 A   Fred Johnson, that's Hanamuxw's wil xsi witxw on  32 father's side.  33 Q   And on the tape he -- at the event he hit the pole as  34 he was speaking.  Can you tell the Court why he did  35 that, what he was doing there?  36 A  Well, he was preparing that pole for the carvers, and  37 that's -- he's the one that -- first one use the axe.  38 That's why they give to him.  They call it -- they call  39 this time xhluuhli gyootxw wilxsi'witxw Hanamuxw.  All  40 frog clan.  You see maskings on it.  And Hak'w was  41 there too and Sinankxws was there, Fanny Williams.  42 MR. GRANT:  You got all those names?  43 THE TRANSLATOR:  Um-hum.  4 4 MR. GRANT:  45 Q   And all of those people are of the frog clan?  46 A   Yes.  47 Q   And what -- what were -- why was Gwis gyen, Stanley 1160  1 Williams, speaking there?  2 A  Well, that's the the law.  Well, Stanley was higher  3 than Hanamuxw when he was supposed to be there.  4 Q   In part of the video the camera went to the bottom of  5 the pole when Solomon was speaking.  When I went back  6 over it, you said he was talking about the bottom of  7 the pole at that point?  8 A  Well, that's the law.  You know, they used a Hak'w's  9 design on the pole.  They called it spagim ganaa'w.  10 There's three frogs in a row.  That's spagim ganna'w.  11 That's Hak'w's pole.  That's Hak'w's ayuuks.  12 Q   Okay.  13 A   Because Joan decided to put -- her wilxsi'witxw was on  14 that pole too.  That's what they -- the law is.  15 THE COURT:  Hanamuxw wasn't at the ceremony, was she?  16 THE WITNESS:  No.  She was absent that time.  17 MR. GRANT:  18 Q   And can you tell the Court why Hanamuxw wasn't there?  19 A  Well, she was coming up on the way up and he had an  20 accident and she lost the car and broke her arm.  21 Q   And she -- she lives in Prince Rupert and she was  22 coming up from Rupert --  23 A   Yes.  24 Q   -- for this event when the accident happened?  25 A   Yes.  2 6 Q   Your grandson Andy gave out the --  27 A   The xhluuhli gyootxw t'ax 'winst.  2 8 Q   T'ax 'winst.  Why was he the one giving them out to  29 the other children?  30 A  Well, he's the member in the house.  31 Q   And his mother Barbara was giving them out as well?  32 A   Yes.  33 Q   Were those given to those chiefs to keep?  34 A   Yes.  35 Q   Were they specially made for that event?  36 A   Yes.  37 Q   And who made them?  3 8 A   I made them.  39 Q   Lelt sang a song.  Whose song was it that he sang and  40 why did he sing it?  41 A   That's his own song.  42 Q   Is -- is this a Limx oo'y?  43 A   Yes.  44 Q   Why did he sing that song?  45 A  Well, that's the chiefs.  That's what the chiefs do  46 when they -- the pole is like that.  They ready to --  47 carvers to do the work on the pole, and that's what the 1161  1 Simmogit did.  YOu know, they invited the father's side  2 to come and see the pole.  They said -- they call it  3 ama skitdithl gan.  4 THE COURT:  Do you have a translation for that, Madam Reporter?  5 THE TRANSLATOR:  Do you want to spell it?  6 THE COURT:  I don't need it, but I want the reporter to have it  7 on the record.  I don't know how she can do it if  8 somebody doesn't give it to her.  9 MR. GRANT:  What, the word or the translation?  10 THE COURT:  The Gitksan phrase that the witness just used.  11 MR. GRANT:  Oh, okay.  Can you translate that, Mr. Translator?  12 THE TRANSLATOR:  They moved the pole.  13 MR. GRANT:  14 Q   And Solomon Marsden sang two songs.  Whose was the  15 first song?  16 A   The last one is Gwash lam song and the second one, you  17 know -- Fred Johnson was the first one and Marsden and  18 then Gwash lam.  19 Q   So there were three songs sung?  20 A   Yes.  21 Q   Fred Johnson sang Lelt's song?  22 A   Um-hum.  23 Q   Solomon Marsden sang his own song?  24 A   Yes.  25 Q   And then he sang Gwashl am's song?  26 A   Yes.  27 Q   And why was Solomon -- did Solomon Marsden sing his  28 own song?  29 A  Well, that's wilxsi'witxw, Hanamuxw's wilxsi'witxw.  30 Q   Yes.  And Gwash lam was Fanny Johnson's?  31 A   No.  Jeffrey.  32 Q   Jeffrey Johnson's wilxsi'witxw?  Does -- did this  33 event involve the dax gyet?  34 A   Yes.  35 MR. GRANT:  Can you explain that to the Court?  36 THE COURT:  Before she does that, Mr. Grant, I'm sorry, but I've  37 forgotten the definition of dax gyet.  3 8 MR. GRANT:  39 Q   Dax gyet is the power of the chiefs and the power of  40 the pole; is that right?  41 A   Yeah.  42 THE COURT:  Thank you.  43 MR. GRANT:  And I'll just tell the Court.  The reason I use that  44 term is because I think that is significant.  It's more  45 understandable to the witness and hopefully your  46 explanation, and also you will get more explanations of  47 what it is. 2  3  MR.  GRANT  4  THE  COURT  5  MR.  GRANT  6  Q  7  8  A  9  Q  0  A  1  MR.  GRANT  2  1162  1 THE COURT:  I'll get nothing whatsoever from it if I don't know  what it means.  No.  I agree.  I agree.  What's your question again now, please?  You said that this ceremony involved the dax gyet and  the pole?  Yeah.  Can you explain how?  It's hard to.  :  If you wish in Gitksan.  Can you translate what she just said?  13 THE TRANSLATOR:  That's what they do when they're cutting the  14 pole.  They bring over their wilxsi'witxw.  They stand  15 there to view the pole.  16 MR. GRANT:  I didn't — I didn't hear you.  They stand there to?  17 THE COURT:  View the pole.  18 THE TRANSLATOR:  View the pole.  19 MR. GRANT:  Do the wilxsi'witxw, the father's side, do they have  dax gyet?  Yes.  And when your pole is raised, will it include part of  the power of the wilxsi'witxw?  Yes.  Yesterday I was asking you about the berry -- about  the -- how the berries were dried, and I'd like to ask  you a few questions today about the use of trees by the  Gitksan.  Yes.  And, first of all, I'd like to know if you have seen  the Gitksan use the trees for different purposes?  Yes.  And did your grandmother teach you how to use them?  Yes.  And from what your grandmother described, did she tell  you how the trees were used in earlier times?  Yes.  And was this part of your training by your  grandmother?  Yes.  Well, I'd like you to -- if you could tell the Court  some of the things that you have seen cedar used for  within your lifetime?  They use cedar barks for making basket and mat, and  they use when they drying the fish.  That's what they  use.  20  Q  21  22  A  23  Q  24  25  A  26  Q  27  28  29  30  A  31  Q  32  33  A  34  Q  35  A  36  Q  37  38  A  39  Q  40  41  A  42  Q  43  44  45  A  46  47 1163  1  Q  2  A  3  4  5  Q  6  A  7  MR.  GRANT  8  THE  COURT  9  10  MR.  GRANT  11  THE  COURT  12  MR.  GRANT  13  Q  14  15  A  16  Q  17  A  18  19  20  Q  21  A  22  Q  23  A  24  THE  COURT  25  THE  WITNE  26  MR.  GRANT  27  Q  28  A  29  Q  30  A  31  32  33  34  Q  35  36  A  37  38  Q  39  40  A  41  THE  COURT  42  MR.  GRANT  43  THE  COURT  44  45  THE  WITNE  46  THE  COURT  47  How do they use it when they're drying the fish?  Well, that's the string they use.  They use it for the  string, to move the -- help dry up, and they tie it up  and they put it up.  This is to tie it up in the smokehouse?  Yes.  They call it gahl goosxw.  :  And do they use --  :  I'm sorry.  Have you got that word, Madam Reporter?  Thank you.  I'll try to keep one eye there.  All right.  Thank you.  And do they have the poles that they use in the  smokehouse?  Yes.  Are those cedar?  That's what they used when they tie the pole.  The  salmon was on the pole and that's what they used to tie  it up.  Was cedar used for roofs?  Yes.  What part of the tree would they use for the roofs?  Well, they -- the barks.  :  I'm sorry.  The bark?  SS:  Yes.  And was cedar used for building the houses?  Yes.  And how would they use the cedar for the house?  The first one is the barks for the roof, and they use  the -- the post and the centre.  That's the red cedar.  And the red cedar is built and they use it for the  wall.  And was this -- would they use it like planks or like  logs?  No.  Just stand them up around it and they -- the pole  was holding together the bottom and the top.  And were those -- when they used those poles standing  together, were they like planks?  Yes.  Well, I gather she said they were poles.  Well, she said they were standing up like poles.  I thought she said that poles -- I took it that  she -- I may be wrong.  I took it that she --  SS:  Well, the post was there.  :  The poles were used vertically, is what I took her  to mean, but maybe she meant they were cutting the 1  2  3  4 MR.  GRA1  5  Q  6  7  8  A  9  Q  10  A  11  Q  12  13  A  14  Q  15  A  16  17  Q  18  A  19  20  Q  21  22  A  23  Q  24  25  A  26  27  28  Q  29  A  30  31  Q  32  A  33  Q  34  35  A  36  37  Q  38  A  39  40  Q  41  42  A  43  Q  44  A  45  Q  46  47  A  1164  planks and stood like poles.  That's not the meaning I  took from what she said.  Perhaps you can straighten  that out.  r:  Okay.  Can you just -- just explain how -- what --  what was the wood like that was standing up?  Was it  round like -- was it like --  No, no.  Half.  It was cut in half?  Okay.  And it was standing up?  Yes.  Okay.  And you said there was something along the  bottom?  Yes.  Can you explain how that was done?  Well, they just tied it, you know, used the red cedar  barks and a rope, a string, like.  Like a rope?  And they tie it on so it wouldn't move.  They never  moved after they tied it.  And so you had these posts standing vertically -- or  these planks standing vertically?  Yes.  Was there anything along the bottom aside from the  rope?  There's a long pole there.  There's two.  One is  outside and one is inside and the -- they were tied  together.  And what about along the top?  Well, it's -- they call it gan nilp.  There's a big  pole right in the centre.  That's under the roof?  Yes.  Was there anything along the top of the planks on the  walls?  There's a few along to hold the rope up.  That's all  red cedar.  And all of this was red cedar?  Yeah.  It's lighter.  Red cedar's lighter than the  rest of the tree.  That's why they used red cedar.  You described yesterday how the young people carried  the berries down in boxes?  Yes.  What were the boxes made of?  Red cedar.  And you also described that there were boxes that were  used to cook the berries in?  Yes. 1165  And were they red cedar?  Yes.  Would they use different boxes for carrying than they  would use for cooking?  Well, there's some, not -- well, they just use spruce.  That's what they used. And I can't pronounce the other  one.  Is there a Gitksan word for the other one?  Am geekxw.  Am geekxw.  Is that hemlock?  Yes.  Now, when I was asking you -- you said the boxes they  carried things in were made of red cedar?  Yes.  And they cooked things in boxes made of red cedar?  Yes.  Would they use the cooking box to carry things in?  No.  They'd have different ones?  Different ones, clean ones.  You described how oolichan grease was obtained and  it's still obtained?  Yes.  And how --  They use the clean box.  For grease?  Yes.  To carry it in?  Um-hum.  Now, you describe -- you started to refer to -- you  referred to spruce.  What was the spruce used for?  Soo'  Soo' ?  Yeah.  35 MR. GRANT:  Okay.  Can you translate that, Mr.  Interpreter?  36 THE COURT:  Sorry?  37 THE TRANSLATOR:  I asked what — it's the edible part of the —  38 underneath the bark of the spruce.  They scrape that  39 off and they cook it.  40 MR. GRANT:  Okay.  41 THE TRANSLATOR:  They soften it up by pounding on it.  And they  42 dry it.  4 3 MR. GRANT:  44 Q   Okay.  Before we go further, is this the -- is this  45 from the tree that in Gitksan you refer to as am  4 6          geekxw?  47       A   Yes.  1  Q  2  A  3  Q  4  5  A  6  7  8  Q  9  A  10  Q  11  A  12  Q  13  14  A  15  Q  16  A  17  Q  18  A  19  Q  20  A  21  Q  22  23  A  24  Q  25  A  26  Q  27  A  28  Q  29  A  30  Q  31  32  A  33  Q  34  A 1166  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  MR.  Q   And is that a hemlock?  A   Yes.  COURT:  This isn't spruce?  GRANT:  THE  No.  It's not spruce.  MR.  I think there was a  misunderstanding of the witness of the tree we're  referring to.  And you saw that done?  Yes.  And you ate it yourself?  Yes.  Was this dried, this inside?  Yes.  And then when you wanted to eat it, would you -- was  it left eaten dried or --  No, no.  It's hard, like biscuit.  You have to soak it  before you use it.  What time of year would you get that --  This time of the year, around second week of June.  And would you store it over the winter?  Yes.  How did the people store things?  Well, they would put it in a wooden box.  Was there a way to keep the mice and the rodents away  from it?  Well, that's why they keep it in the wooden box.  They  call it xtsii hapt.  That's the name of the box?  Yeah.  And were these different wooden boxes than they use  for cooking or for oolichan grease?  Well, that's cedar, red cedar.  Do you have that spelling?  Okay.  How -- how were the  trees -- you said that the houses were built with  planks, but that they would cut in half for these posts  on the houses earlier.  How would -- how were the  planks cut?  Well, they used rocks.  That's what they do, t'ax  winst, da wiis.  COURT:  One of the problems with leading, Mr. Grant, is that  the evidence sometimes gets distorted.  The witness has  never said anything about planks.  She said poles first  and then she said half poles.  There could be a vast  difference between half poles and planks, especially if  you're cutting them with rocks, and I really don't know  what her evidence is at the moment in that regard.  GRANT:  Okay.  A  Q  A  Q  A  Q  A  Q  A  Q  A  Q  A  Q  A  Q  A  Q  A  Q  A 1167  1 MR. MACAULAY:  Is the witness saying that she — this is from  2 her own experience with the stone?  3 THE COURT:  Well, Mr. Grant will get to it.  We'll get the  4 witness to tell us that, Mr. Macaulay.  5 MR. GRANT:  6 Q   I will ask the witness about that.  7 I've used the term "planks", and as the Court said,  8 you've talked about -- they were standing up, I think,  9 like poles or like posts?  10 A   There's no sawmill that time.  11 Q   There's no what?  12 A   No sawmill that time.  13 Q   There's no sawmill?  14 A   Yes.  The old people don't use chain saw.  15 Q   But did they cut the trees --  16 A   Yes.  17 Q   -- when they used them?  18 A   They used da wiis when they cut the trees.  19 Q   That's a —  20 A   They have to be tough when you use the da wiis.  21 Q   Okay.  And can you describe what the da wiis was?  22 A  Well, Norman's going to explain.  23 MR. GRANT:  Can you translate da wiis?  24 THE TRANSLATOR:  That is — that is what the natives used as  25 axes.  26 THE WITNESS:  Da wiis.  2 7 MR. GRANT:  28 Q   When they built their houses, they used the -- the  29 trees?  30 A   Yes.  31 Q   And you described it as red cedar?  32 A   Yes.  33 Q   You described how the houses -- they would stand up  34 the walls?  35 A   Yes.  36 Q   Would they use one whole tree or would they cut it  37 before they used it?  38 A   No.  The whole one.  That whole tree used in front of  39 the house and the back.  That's where the gan nilp was  40 on it, the centre.  41 Q   And for the walls, there's some confusion, maybe by my  42 questioning about the walls.  Did they use the whole  43 tree for the walls or did they cut them?  44 A   No.  Cut in half.  45 Q   They were cut in half?  46 A   Yes.  47 Q   And the use of these, I think you said da wiis, 1  2  A  3  Q  4  A  5  Q  6  7  A  8  Q  9  A  10  Q  11  A  12  13  14  Q  15  A  16  Q  17  18  19  A  20  Q  21  22  A  23  Q  24  A  25  Q  26  A  27  Q  28  29  A  30  Q  31  A  32  Q  33  34  A  35  Q  36  A  37  Q  38  39  40  A  41  42  4 3 MR.  GRA1  44  45  46  47  1168  these -- what was used for axes --  Yes.  -- did you see this in your lifetime?  Yes.  Now, you were talking about the -- the bark or the  inside of the hemlock tree that was used for food?  Yes.  And was it dried in the same way as the berries?  Yes.  Do your people still collect this bark of the hemlock?  No, because of the forester get after the Gitksan  when they go out and get the soo'.  They don't allow us  to do the things to the tree.  And that has happened to you?  Yes.  I'd like to move into an area of access to the  territories.  In the Feast in 1945 did Hanamuxw say who  could go on his territory?  Just his family, that whole clan in the house.  Okay.  When you say "his family", you mean the people  in the House of Hanamuxw?  Yes.  What about the people in Guxsan's house?  Well, they get their own.  Did he say that at the 1945 Feast?  At the Feast.  Can -- if a -- does a woman who marries a man in your  house have any rights to use the territory?  Yes.  Is there a Gitksan term for those rights?  Yes.  And can you explain what those rights -- what her  rights are, how long they last?  Well, if the woman died, then that's the end.  It's just for her lifetime?  Yes.  Could -- under Gitksan law could others use Hanamuxw's  territory, for example your berry grounds, without your  permission, persons outside your house?  Well, Hanamuxw was generous to the others, you know,  all the others, and they let them go there when they  ask them permission.  P:  I'd like to ask you questions about the fishing  sites.  And for the record, at Tab 5 of Exhibit 29 is  the fishing sites, and I want to set out for the Court  and my friends this map is prepared as an aid to the  Court. 1  THE  COURT  2  MR.  GRANT  3  4  5  6  7  8  9  10  11  12  THE  COURT  13  14  MR.  GRANT  15  Q  16  17  18  19  A  20  MR.  GRANT  21  22  MR.  PLANT  23  THE  COURT  24  MR.  GRANT  25  Q  26  27  A  28  Q  29  30  31  32  33  A  34  Q  35  36  37  A  38  MR.  GRANT  39  40  THE  COURT  41  MR.  GRANT  42  Q  43  A  44  Q  45  A  46  Q  47  A  1169  :  Which map, please?  :  It's at Tab 5, to be able to follow what the witness  is saying, and that this witness -- I'm not going to  put the map to this witness as this witness is unable  to read maps herself but can describe these places from  her knowledge.  And to also assist the Court, at Tab 19  is the names of the places.  They're also marked on the  map itself.  And I have not co-ordinated -- they're in  alphabetical order in Tab 9, but I haven't co-ordinated  Tab 19 with the map itself by putting numbers on the  map.  :  Is Tab -- sorry.  Is Tab 19 exclusively a list of  fishing sites?  It's -- the majority of it is fishing sites.  There's  some territory place names there as well.  You know the -- do you know the fishing sites of --  of the chiefs of Kitsegukla?  Yes.  :  And you were taught about those fishing sites by  your grandmother?  I ask that my friend not lead in this area.  All right.  Have you been to Hanamuxw's fishing sites?  Have you  been to Hanamuxw's fishing sites?  Yes.  Okay.  I'd like you to start on the Skeena River  upstream of Kitsegukla and tell the Court the name of  the first site of Hanamuxw, and you can refer to the  side of the river by referring to the highway side and  the other side of the river as the railway side, okay?  Yes.  Can you tell the Court the name of Hanamuxw's fishing  site which is closest to Hazelton from Kitsegukla on  the highway side?  Yes.  Ansibilaa.  :  348.  And, my lord, I refer you to the triangles on  this map.  :  Yes.  I found it.  You found it.  And what does that name mean?  Bilaa's an abalone shell.  Abalone shell?  Yes.  What is the next site of Hanamuxw on the river there?  An gwadixsxw. 1170  1  THE  VOICE  2  THE  WITNE  3  MR.  GRANT  4  Q  5  A  6  THE  COURT  7  MR.  GRANT  8  9  10  THE  COURT  11  MR.  GRANT  12  13  14  THE  COURT  15  MR.  GRANT  16  17  18  THE  COURT  19  MR.  GRANT  20  Q  21  22  A  23  24  Q  25  A  26  Q  27  A  28  Q  29  A  30  Q  31  A  32  THE  VOICE  33  MR.  GRANT  34  Q  35  A  36  Q  37  A  38  THE  VOICE  39  THE  COURT  40  MR.  GRANT  41  Q  42  A  43  Q  44  A  45  46  THE  VOICE  47  MR.  GRANT  :  349.  SS:  That's a frog clan.  That's Duubisxw fishing site.  What side of the river is that on?  On the highway side.  :  What did she call it again?  :  An gwadixsxw.  It's 349, and if the Court looks,  there's the faint outline of the Hanamuxw name on the  right side of the map.  :  Yes.  :  And then there's a name of a fishing site,  Gwinxts'aa'lisxw, and then there's another name,  Angwadixsxw.  That's the site that she's referring to.  :  She skipped one according to the map, did she not?  :  Yes.  Not only that, it's my understanding that the  map is in error with respect to the location of that  second site.  :  All right.  But that's -- that's the next site, and that's -- you  said --  Ansibilaa is really close to An gwadixsxw on the  highway side.  What's it called?  An gwadixsxw.  That's Duubisxw's fishing site.  And she's Ganeda?  Ganeda, yes.  What's the next fishing site on the highway site?  Gwin ap.  Whose fishing site?  Hanamuxw.  :  361.  And the next fishing site?  Right across the Ansibilaa is Win 'yaga gidax.  That's on the other side of the river?  Yes.  Number 389.  The number again is?  389.  And whose site is that?  Hanamuxw.  The next one on the other side?  Gwin di sahasxw, Gwin di sahasxw.  Win Xsidahix.  :  That was 362.  :  That's Gwin di sahasxw is 362.  And the next one is 1171  1 THE VOICE:  Yes.  I didn't hear the second one.  2 THE TRANSLATOR:  388.  3 MR. GRANT:  38 8.  4 THE COURT:  I'm sorry.  I've got 389 and 362.  Where does 388  5 come in?  6 MR. GRANT:  She gave a third fishing site.  7 THE COURT:  All right.  388.  What is it called, please?  8 THE TRANSLATOR:  388?  9 THE COURT:  Yes.  10 THE TRANSLATOR:  Win Xsidahix.  11 MR. GRANT:  Who does -- who owns Win Xsidahix?  Hanamuxw.  And Gwin di sahasxw?  Hanamuxw.  :  And continuing down that side of the river, what is  the next site?  That side being the railway side?  Yes.  It isn't yet the railway side, but yes.  Gwin di sahasxw is on the other side of the railway.  Win Xsidahix is on the other side of the river too.  That being not the highway side but the other side?  Yeah.  What's the next site, fishing site on that side of the  river?  Wilsa k'awts.  :  387.  And who owns that?  Hanamuxw.  Now, earlier you mentioned An gwadixsxw.  Is that  across from any of the fishing sites you just  mentioned?  Gwin di sahasxw, right across from Gwin di sahasxw.  :  And I -- just for the Court, that arrow that goes  down, I -- from that name, I would move it up and I  suggest maybe a marking be made on that across from  there, just for the court's -- across from the --  I don't follow.  I don't either, but perhaps the easiest thing would  be to have Mr. Grant and watch what he's saying and  know at least what -- what it is that's being  suggested.  I'll mark it with a red pen and then show it to my  46 friends.  Perhaps I should mark it on the exhibit here.  47 THE COURT:  Well, are you suggesting, Mr. Grant, that — that  12  Q  13  A  14  Q  15  A  16  MR.  GRANT  17  18  THE  COURT  19  MR.  GRANT  20  Q  21  A  22  i  23  Q  24  A  25  Q  26  27  A  28  THE  VOICE  29  MR.  GRANT  30  Q  31  A  32  Q  33  34  ]  35  A  36  MR.  GRANT  37  1  38  39  40  MR.  PLANT  41  THE  COURT  42  43  44  45  MR.  GRANT 6 THE COURT  7 MR. GRANT  8 THE COURT  9 MR. GRANT  1172  1 the arrow that's originally shown from An gwadixsxw  2 should remain and there should just be another arrow as  3 well?  4 MR. GRANT:  No.  Actually, you're quite correct.  The other part  5 of that would be to take that arrow out.  And the fishing site as well.  Yes.  And that site.  Yes.  Well, if that's —  I'm just trying to make the exhibit consistent with  10 what the witness is saying, that's all.  11 THE COURT:  All right.  Well, then I think the — the Court  12 exhibit should be amended in the same way, but in -- in  13 such a way that -- that the change can be -- can be  14 seen so that if there's an argument about it, we can  15 identify what the map originally showed and what the  16 change is.  17 MR. GRANT:  I would propose to mark it in red just as I have on  18 the court's copy.  19 THE COURT:  Yes.  And mark -- and strike out the original arrow  20 just -- and fishing site by rubbing -- putting a wiggly  21 line through it.  That's right.  So that it can still be seen.  All right.  You're doing that in red as well.  I will do both in red.  And just for the record, I'm  25 going to just leave the triangle in at the end of that  26 other arrow.  But it's taken to be scratched.  The arrow is scratched.  And then the triangle for the fishing site is struck  30 as well, is it?  31 MR. GRANT:  The which?  32 THE COURT:  The triangle indicating the original and indicating  33 the fishing site as originally shown is also struck, or  34 are you saying the --  35 MR. GRANT:  I just would leave that triangle in.  I'm sorry, my  36 lord.  All right.  I'd leave that.  I don't have any problem with the marking.  I'm  40 troubled by the fact that this document is being  41 referred to as an exhibit.  It is part of Exhibit 29  42 for identification.  4 3 THE COURT:  Yes.  44 MR. PLANT:  But that's the only status it has right now, in my  4 5 submission.  4 6 THE COURT:  Yes.  47 MR. GRANT:  It's an exhibit for identification.  22 MR. GRANT  2 3 THE COURT  2 4 MR. GRANT  2 7 THE COURT  2 8 MR. GRANT  2 9 THE COURT  37 THE COURT  3 8 MR. GRANT  3 9 MR. PLANT 1  MR.  PLANT  2  3  THE  COURT  4  MR.  GRANT  5  6  7  THE  COURT  8  MR.  GRANT  9  Q  0  1  2  3  4  A  5  Q  6  A  7  Q  8  A  1173  :  My friend has said he's offering it as an assistance  to the Court.  :  Yes.  That's correct.  :  It will ultimately, I think, become an exhibit  proper, but it's only for an exhibit for identification  right now.  :  Yes.  Thank you.  Okay.  Now, the last fishing site that we left at  before I just made some markings on the map was Wilsa  k'awts on the side of the river opposite the highway.  Can you just continue down river and tell the Court  what the next fishing site is?  Gwin xts'aa'lixsxw.  And which side of the river?  On the highway side.  And whose is that?  That's Duubisxw.  19 THE VOICE:  390, I believe.  20 THE TRANSLATOR:  I think it's 363.  21 THE VOICE:  Yes.  You're right.  363.  22 MR. PLANT:  I don't see that on the — 390, Winx ts'alok.  I  don't see that word on the map.  It's 363.  Oh, I'm sorry.  The next site going downstream?  Mol'xan, An woowaxhl gaak.  :  345.  And which side of the river?  On the highway side.  And you gave the name An woowaxhl gaak?  An woowaxhl gaak.  And that belongs to Mool'xan?  Mool'xan.  And is Mool'xan related to Haak asxw?  Yes.  And they're the frog clan?  Yes.  Okay.  What is the next site?  That's Gwagl'lo fishing site.  Gwagl'lo's fishing site?  Yes.  What is the name of it?  Winx ts'alok.  On which side of the river?  23  24  MR.  GRANT  25  MR.  PLANT  26  MR.  GRANT  27  Q  28  A  29  THE  VOICE  30  MR.  GRANT  31  Q  32  A  33  Q  34  A  35  Q  36  A  37  Q  38  A  39  Q  40  A  41  Q  42  A  43  Q  44  A  45  Q  46  A  47  Q 1174  1 A   On the highway side.  2 THE VOICE:  That should be 390.  3 THE WITNESS:  We missed one of the fishing site in Mool'xan's  4 fishing site and An gildiptsim k'o'lasxw, An gildiptsim  5 k'o'lasxw.  6 MR. GRANT:  7 Q   Where is that in relation to An woowaxhl gaak?  8 A   Right below the fishing -- you know, that smokehouse.  9 The highway is on it right now and there used to be a  10 smokehouse there.  That's An woowaxhl gaak.  That's  11 Mool'xan and Haakasxw's smokehouse there before and  12 there's two fishing site by the river.  One is An  13 gildiptsim k'o'lasxw and one is An Woowaxhl gaak.  14 MR. GRANT:  The reference you already have there.  It's the same  15 If you see -- if you have the 345, An Woowaxhl gaak,  16 there's a name immediately following it, which is at  17 347, the name the witness has just given.  So there's  18 two names and one triangle on the map.  19 THE COURT:  Yes.  All right.  2 0 MR. GRANT:  21 Q   And you mentioned Winx ts'alok, Gwagl'lo's site.  What  22 is the next site below that?  23 A  Well, An gildipyee.  24 Q   Yes.  And whose is that site?  25 A   That's Xsgogimlaxha.  26 THE VOICE:  346.  27 THE COURT:  We're still on the highway side.  28 THE WITNESS:  On the highway side.  2 9 MR. GRANT:  30 Q   And what clan is Xsgogimlaxha?  31 A   Giskaast.  32 MR. GRANT:  Okay.  Could you give the number for Xsgogimlaxha?  33 THE TRANSLATOR:  Number 87.  34 MR. GRANT:  Again, that site refers on the map to Guxsan  35 underneath it.  It's -- has the Court found it?  3 6 THE COURT:  Yes.  37 MR. GRANT:  And the witness' evidence is Xsgogimlaxha, which is  38 43, did you say?  39 THE TRANSLATOR:  87.  40 MR. PLANT:  Is that the site An gildipyee?  41 THE WITNESS:  Yes.  That's Xsgogimlaxha's fishing site.  42 MR. GRANT:  43 Q   And possibly I should mark the exhibit accordingly to  44 be consistent with what she says.  45 And the next fishing site?  4 6       A   Gwin ahluut'axhlxw  47       Q   And whose site is that? 1175  MR.  THE  MR.  MR.  THE  9  10  11 MR.  12 THE  13 MR.  14  15  16 THE  17 MR.  18  19  20  21  22  23 THE  24  2 5 MR.  2 6 THE  2 7 MR.  2 8 THE  2 9 MR.  30 THE  31 MR.  32 THE  33 MR.  34  35  36 THE  37 THE  38 THE  3 9 MR.  40  41  42 THE  4 3 MR.  44  45  4 6 THE  THE  A   Guxsan.  GRANT:  What number is that?  VOICE:  Say it again.  GRANT:  Q   366.  And the next fishing site?  Oh, that's on the  highway side?  A   On the highway side.  GRANT:  The next fishing site?  COURT:  I'm sorry.  I'm looking at the tip of the map.  I  missed a number.  366.  366.  Thank you all right.  47  GRANT:  COURT:  GRANT:  Q   The next fishing site on the highway side?  A  Win 'nahaast.  VOICE:  391.  GRANT:  Q   And who owns that site?  A   Xsgogimlaxha.  Q   And I think I missed Gwin ahluut'axhlxw.  Who owns  that site?  could you pronounce that?  A   That's Guxsan.  COURT:  I'm sorry.  I had that marked as 366.  That's not  it, I take it?  GRANT:  Yes.  That's right.  That's 366.  COURT:  I didn't think you did miss it.  GRANT:  I thought I missed who was the owner of it.  COURT:  I see.  All right.  GRANT:  She said Guxsan was.  What number is Guxsan?  TRANSLATOR:  Guxsan is number 16.  GRANT: For use of the Court, the names are underneath.  COURT: Yes. I have it. I'm following it. Thank you.  GRANT:  Q   Now, on the other side of the river --  A   Git an yuusxw.  VOICE:  367.  COURT:  Sorry?  VOICE:  367.  GRANT:  Q   Git an yuusxw, 367.  A   That's Wiigyet.  TRANSLATOR:  Number 75.  GRANT:  Q   And —  A   Git an xsa huntxw.  VOICE:  368.  COURT:  I'm sorry?  And who owns that site?  That's Wiigyet. 1176  MR.  THE  MR.  1  2  3  4  5  6 THE  7 THE  8 MR.  9 THE  10 MR.  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33 THE  GRANT  COURT  GRANT  Q  A  COURT  368.  Yes, but where is it?  Could you say it again for me?  Git an xsa huntxw.  Are we going into the inset?  THE  MR.  34 MR.  35 THE  3 6 MR.  37 THE  38  39  4 0 MR.  41 THE  42  4 3 MR.  44 THE  4 5 MR.  4 6 THE  47  WITNESS:  GRANT  COURT  GRANT  Q  That's on the railway side.  Just one moment, my lord.  They're on the --  A  Q  A  Q  A  Q  A  Yes.  Where is that in relation to Git an yuusxw site,  to the Git an yuusxw?  That's Wiigyet's fishing site on the railway side.  And the other one, Git an xsa huntxw, is that -- is  that near --  Wiigyet, yeah.  Is that near the other side?  The same, the same place.  It's the same place?  Okay.  Now, just going upstream,  or -- or if we -- if we stay on that side of the river,  and the last site you referred to on the -- on the side  opposite the highway was Wilsa k'awts?  That's Guxsan's.  COURT:  I'm sorry, Mr. Grant.  We're going down there, which  I think that I identify.  You missed the three sites on  the railway side and there are -- are you trying to  skip the inset?  GRANT:  No.  I'm not skipping the inset.  There's a number  of sites.  There's three sites on the railway side that  she hasn't referred to yet that are upstream of the  site she just gave, and I just wanted to cover those  sites first.  COURT:  So you're going to come back to the inset?  GRANT:  Oh, yes.  COURT:  All right.  Should we do that after lunch?  GRANT:  Yes.  And we can complete that, certainly.  COURT:  Perhaps we should complete this when we come back  after lunch before we have the argument that we  scheduled for that purpose.  GRANT:  Yes.  Complete this map or —  COURT:  Yes.  I was told counsel wanted to see me privately.  Is that so?  MACAULAY:  Yes.  COURT:  Would you want to do that at two o'clock or before?  MACAULAY:  Perhaps just before two o'clock.  COURT:  I'll be back at quarter to two and counsel can let  me know when they're ready. 1177  1 THE REGISTRAR:  Order in Court.  2  3 (PROCEEDINGS ADJOURNED)  4  5  6  7 I hereby certify the foregoing to be  8 a true and accurate transcript of the  9 proceedings herein to the best of my  10 skill and ability.  11  12  13  14 Kathie Tanaka, Official Reporter  15 UNITED REPORTING SERVICE LTD.  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 1178  1        (PROCEEDINGS RECOMMENCED AFTER A SHORT RECESS)  2  3 THE REGISTRAR:  Witness, I remind you, you are still under oath.  4 MR. GRANT:  I intend to complete the description of sites on  5 this map.  6 THE COURT:  Yes, thank you.  The last thing I had noted was 367.  7 MR. GRANT:  Yes, I'm going to go back upstream.  8 Q   Is there a fishing site across the river from An  9 woowaxhl gaak?  10 A  An woowaxhl gaak.  11 Q   An woowaxhl gaak.  Is there a fishing site across the  12 river from there?  13 THE COURT:  What number is the one she just mentioned?  14 MR. GRANT: 345.  15 A  An woowaxhl gaak, and is across the river is Gwin hat'.  16 That's 'Wiis T'is's fishing site.  17 MR. STERRITT: 364.  18 MR. GRANT:  That's 364.  19 THE WITNESS:   And the two fishing sites, Mool'xan's fishing  20 site, right on the highway side by An woowaxhl gaak.  21 Q   And is 'Wiis T'is related to Gaxsbgabaxs?  22 A  Well, they get their own house.  23 Q   I'm sorry, 'Wiis T'is is in the same House or has their  24 own House separately?  25 A   Own house.  26 Q   Before the lunch break you referred to Gitan yuusxw?  27 A   Yes.  28 Q   Is there a fishing site upstream of Gitan yuusxw?  29 A   Little ways down across the village.  Tsim tka lo'op,  30 Win luu'nu'u, Gwin T'eegan.  31 Q   Yes.  32 A  And Win 'na wan.  33 Q   I refer the Court to the inset.  34 THE COURT:  Yes.  35 MR. GRANT:  36 Q   The first one you said was Tsim tka lo'op?  37 A   Yes.  38 MR. STERRITT: 386.  3 9 MR. GRANT:  4 0      Q   And who owns that site?  41 A   Gwis gyen.  42 THE COURT:  Just a minute.  386?  4 3 MR. GRANT:  38 6.  44 THE COURT:  And that's the one on the extreme right of the  45 inset.  4 6 MR. GRANT:  47      Q   The next one you referred to was? 1179  1 A Win luu'nu'u.  2 Q Win luu'nu'u.  And who owns that fishing site?  3 A Gwis gyen.  4 MR. STERRITT: 392.  5 MR. GRANT:  6 Q 392.  And the next one you referred to was Gwin  7 T'eegan?  8 A Gwin T'eegan, yes, the same.  9 MR. STERRITT: 369.  10 A Gwis gyen.  11 Q Gwis gyen holds that site?  12 A Yes.  But somebody who destroyed when they -- before  13 the riverboat coming up the river.  14 Q Were any of these three sites destroyed then?  15 A Yes.  No, no, that's still -- the two of them are  16 destroyed before the boats coming up, but the three of  17 them still there.  18 Q So there used to be 5 sites there?  19 A Yes.  20 Q And when you say they were destroyed by the riverboats  21 coming up, how were they destroyed?  22 A Well, they -- they came up -- there is a way in the  23 river, before the riverboat, and they worried about --  24 the village burn down because of -- the riverboat is  25 coming up the river.  26 MR. PLANT:  Is the witness testifying now to something she was  27 told by her --  2 8 MR. GRANT:  29 Q I was just about to ask that question.  30 This is something that -- is this something that your  31 grandmother told you about?  32 A Yes.  33 Q And this happened before you were born?  34 A Yes.  35 Q Across from those three sites you have referred to, is  36 there a fishing site on the highway side, across from  37 Tsim tka lo'op?  38 A There is no fishing site on the Kitsegukla side.  You  39 are talking about the -- on the highway side, eh?  40 Q Yes.  41 A No, there is none there until the -- across the -- what  42 they call -- across Anasa kawts.  They call this  43 fishing site Gwin gas k'ots jaxt.  44 Q That's on the railway side?  45 A That's on the highway side.  46 Q Highway side.  47 MR. STERRITT: That's number 370. 1180  1 THE COURT:  I haven't found it yet.  2 MR. GRANT:  Just a moment, My Lord.  That would be the name —  3 it's marked on the bottom.  And the triangle refers to  4 on the railway side.  5 THE COURT:  Well, she says it's on the highway side.  6 THE WITNESS:  On the highway side is Gwin gas k'ots jaxt.  7 MR. GRANT:   Yes, I'm just referring the Court to the name.  8 THE COURT:  I think I found the name.  That's a Guxsan site?  9 MR. GRANT:  10 Q   And that belongs to Guxsan?  11 A   Yes.  12 THE COURT:  The suggestion is that the witness says it's  13 improperly located on the map, and it should be on the  14 highway side.  15 MR. GRANT:   I am just going to clarify.  16 THE COURT:  All right.  17 MR. GRANT:  18 Q   Is that -- when you say it's on the highway side, can  19 you describe where it is in relation to the village?  20 How far is it from the village?  21 A  A little ways down, about half a mile.  22 THE COURT:  There is no fishing site right at the junction of  23 the Skeena River and the Kitsegukla River?  24 THE WITNESS:   There is one there.  It's on the highway side.  2 5 THE COURT:  Yes.  26 THE WITNESS:  It's Ant kii 'min.  27 MR. STERRITT: 352.  2 8 MR. RUSH:  29 Q   And who owns that side?  I'm not asking you what it  30 means, I'm asking you who owned it.  31 A  Well, Xsgogimlaxha using it right now.  32 Q   Which House owns that site?  33 A   It used to be Hanamuxw.  34 Q   Going downstream from Kitsegukla, what are the next  35 sites after Gwin gas k'ots jaxt?  36 A  Ansa k'awts you mean?  There is a lot of fishing site  37 on the railway side, Win 'na wan, Win oxws tka ski.  38 Q   Just a moment.  Does the Court follow that?  3 9 THE COURT:  Nope.  40 MR. GRANT:   The triangle — the line going to the triangle just  41 beside the "x" on the map of the railway side.  42 THE COURT:  Oh, yes, I have it.  What number is that please?  43 MR. GRANT:  394 is Win 'na wan and 393 is the other one, Win  44 oxws tka ski.  45 Q   Is there any other fishing sites on that side of the  46 river near those sites?  47 A  Miinhl am 'mal on the highway side. 1181  1  MR.  STERRITT: 381.  2  MR.  GRANT:  3  Q  Yes.  4  A  Miinhl seeks.  5  Q  Which side?  6  A  Highway side.  7  MR.  STERRITT: 382.  8  THE  WITNESS:   Are you going  9  is a few fishing si  10  MR.  STERRITT: Number 350, An  11  MR.  GRANT:   Oh, this is on  12  THE  COURT:  She's across the  13  MR.  GRANT:  14  Q  Across the river?  15  A  Yes.  16  Q  Okay.  You have des  17  downstream of Ansa  18  A  There is one fishin  19  Q  What's that called?  20  THE  COURT:  You can lead her  21  MR.  GRANT:  22  Q  Lax owst?  23  A  Lax owst, yes, Lax  24  MR.  STERRITT: 379.  25  MR.  GRANT:  26  Q  Now, with respect t  27  and Win oxws tka sk  28  A  Yes, Guxsans.  29  Q  With respect to Gwi  30  'mal.  31  A  Miinhl am 'mal.  32  Q  Miinhl am 'mal.  Wh  33  A  That's Guxsan.  34  THE  COURT:  I don't think sh  35  THE  WITNESS:   That's Gwin s  36  MR.  GRANT:   I'm sorry, My L  37  THE  COURT:  I don't think sh  38  MR.  GRANT:   What number is  39  MR.  STERRITT: 371, Gwin suuk  40  MR.  GRANT:  41  Q  Just going up to --  42  the Skeena crossing  43  highway.  44  A  Win 'nahaast, that'  45  Q  Which one are you s  46  A  Win 'nahaast.  47  MR.  STERRITT: 391.  to go back to Ansa k'awts?  There  te on there,  sa k'awts.  the —  river.  cribed -- is there any others  k'awts on that side of the river?  g site there.  on it.  owst.  o Lax owst, Ansa k'awts, Win 'na wan  i, who --  n suuks, Miinhl seeks and Miinhl am  o owns those sites?  e said the last one.  uuks on the highway side.  ord, I did't realize she hadn't.  e did.  that?  s .  just for a moment, back up above  bridge on the side opposite the  s Xsgogimlaxha' fishing site.  aying  9 1182  1 THE COURT:  I haven't found it.  How far above — is that  2 g-i-t-a-n-y-u-u-s-x-w?  3 MR. GRANT:   It's 391.  It's the one — if you see the words  4 "Skeena crossing", it's the one that's referred to just  5 to the right of it and above, Win 'nahaast, Giskaast  6 and Xsgogimlaxha.  7 THE COURT:  Well, I thought she said — I'm sorry, she said on  8 the highway side.  That's 391.  Yes, she said that this  morning.  Just upstream of that, just on that railway side is --  above Git an yuusxw is there another fishing site?  Which side, up or down?  Up the river on the side opposite the highway.  I'm not  asking you for the name, I just wonder if you know of  the site.  A lot of fishing site, you know, destroyed, about  the -- for the boat, riverboat.  The name was still but  it's not used anymore after that.  :  You can direct her attention to the particular one  you want.  Okay, yes.  I am referring you to -- is there a site  that belongs to Guxsan that's upstream of Git an yuusxw  on the railway side of the river?  That's one fishing site there.  By the Git an yuusxw  you are talking about?  Yes, above it.  Yes, that's Gwin ga Laagintxu's fishing site.  That  belongs to -- Gwin ga Laagintxu was from Guxsan's  House.  And that's further up the river from Git an yuusxw?  Yes.  That's -- it's a site marked with no name but a  35 reference on it.  3 6 THE COURT:  Yes.  37 MR. GRANT:  38 Q   You can't recall the name of that site right now, that  39 last site?  You can't remember the name right now of  40 that site?  41 MR. PLANT:  I thought she just gave a name.  42 THE WITNESS:   Gwin ga Laagintxw's fishing site.  4 3 MR. GRANT:  44 Q   That's the person who uses the site, isn't it?  45 A   Yes.  I thought you talking about going to the Gwin  46 suuks on the highway side.  That's one of Guxsan's  47 fishing site.  9  10  MR.  GRANT  11  Q  12  13  A  14  Q  15  16  17  A  18  19  20  THE  COURT  21  22  MR.  GRANT  23  Q  24  25  26  A  27  28  Q  29  A  30  31  32  Q  33  A  34  MR.  GRANT 1  Q  2  3  A  4  Q  5  6  THE  COURT  7  8  MR.  GRANT  9  10  THE  COURT  11  12  13  14  MR.  GRANT  15  16  17  18  19  MR.  PLANT  20  21  22  23  THE  COURT  24  MR.  GRANT  25  MR.  PLANT  26  THE  COURT  27  MR.  GRANT  28  29  30  THE  COURT  31  MR.  GRANT  32  33  34  THE  COURT  35  36  MR.  GRANT  37  THE  COURT  38  39  MR.  GOLDI  40  41  42  THE  COURT  43  44  MS.  KOENI  45  46  47  THE  COURT  1183  Oh, yes.  That's the one that's down at the bottom just  before Andimaul?  Yes.  How far you going now?  That's all I am going to.  I am not going any father  today.  :  Is the town of Kitsegukla not at the junction of the  river?  :  Yes.  You see the word "Kitsegukla" there.  It's on  the south side of the --  :  Just downstream from where you replace one of the  fishing sites, the word "Kitsegukla" appears in quite  large letters across the river.  That's not where the  village is, is it?  :  No, the village would be -- the highway actually  bisects the village there, so the village would be --  it would be there or at least the first part of that  word is, and it would be also on the other side of the  highway, between the highway and the river.  :  I believe that the word Your Lordship is looking at  is the first word of the description of the Indian  reserve, the boundaries of which are -- may be  described on the map.  I see.  Oh, yes.  That's the word that's entirely in capital letters.  Yes, that's right.  Yes, that's -- and that's spread down.  Indian is  across the river and reserve is down below, about --  below Win oxws tka ski.  :  All right.  : Thank you, Mrs. Ryan. Those are my questions for  you for now. I assume we'll allow this motion to go  ahead.  So the witness can step down.  :  Yes.  Thank you, Mrs. Ryan.  Do you remember which  tab this was, Mr. Grant?  : Tab 5.  :  All right.  Mr. Goldie, have you finished your  submission on the map alienation project?  E:  I had made -- I had completed my submission with  respect to the documents that were tendered in the  course of Mrs. Johnson's cross-examination.  :  Yes.  All right.  Mr. Macaulay, do you have any  submission?  GSBERG:  I believe we already made the submission that  we supported the motion and that we had in fact already  admitted, as requested, all of the maps.  :  Thank you.  Mr. Rush. 1184  1 MR. RUSH:  Yes, My Lord, I have a book of authorities that I  2 want to hand up to you and I also have a written  3 argument that I want to pass to you.  4 THE COURT:  All right, Mr. Rush.  5 MR. RUSH:  And I think you should probably get the grey books  6 back.  7 This application is brought by the Provincial  8 Defendant pursuant to two rules, rule 40(41) and  9 40(42).  They are found at my friend's blue book at tab  10 4.  11 40(41) provides that a trial judge may allow  12 evidence and I quote "of a particular fact or document"  13 to be proved by affidavit "for the purpose" of proving  14 the fact or document and this rule allows for  15 cross-examination of the deponent.  The rule raises the  16 issue of the appropriateness of proving facts or  17 documents by way of an affidavit, a chosen method here.  18 The Rule 40(42) deals with the "manner" by which a  19 "fact or document may be presented" as evidence, and I  20 have set the section out there.  And it illustrates  21 some of the types of ways or types of manners by which  22 a fact or document may be presented.  It does not, in  23 my submission, imply anything about the admissibility  24 or sufficiency of such evidence.  25 Now, our submission is that the alienation maps and  26 the supporting documentation should not be admitted  27 into evidence by way of affidavit proof.  28 A major part of the Defendant Province's case here  29 is sought to be proved by the expedient of the  30 alienation maps tendered through affidavits based on  31 hearsay and lay opinion without the benefit of  32 cross-examination.  33 Sub-paragraph 36(d) and (e) of the Further Amended  34 Statement of Defence illustrates the importance to the  35 Defendant of their extinguishment-by-alienation  36 alienation argument.  36(d) provides in part that the  37 plaintiff's right to title ownership or jurisdiction  38 over any part of the Province of British Columbia were  39 reduced, diminished or extinguished by administrative  40 actions pursuant to the statute and statutory  41 instruments referred to in sub-paragraphs (a), (b) and  42 (c), that is of paragraph 36.  And then sub paragraph  43 (e) provide the actions of third parties in the  44 exercise of rights and privileges conferred by the said  45 statutes in statutory instruments.  46 Now, the defendants have provided us with  47 particulars and they are set out here at the bottom of 1185  1 page 2.  The administrative actions referred to in this  2 paragraph include, they say, the granting of all forms  3 of tenure pursuant to all proclamations, ordinances,  4 statutes and regulations of the Colony and Province of  5 British Columbia.  Administrative actions also include  6 actions by officers, servants, agents and employees of  7 the Crown, whether in right of the Province of British  8 Columbia or whether in rights right of Canada.  And  9 then (e), particulars of the actions of third parties  10 which are alleged to have reduced, diminished or  11 distinguished the plaintiff's aboriginal or other  12 title, if any, include the acts within the Territory of  13 all those upon whom rights or privileges have been  14 conferred by the laws of general application or  15 administrative actions as aforesaid.  It's evidence, in  16 our submission, that the defendant places some  17 considerable importance on these alienations.  18 The Province pleads, in effect, that by the simple  19 making of laws which permitted alienations, the title  20 and ownership and jurisdiction of the plaintiffs was  21 extinguished or reduced.  In a like abstraction, they  22 say their alienations have been proved by the affidavit  23 of one of their counsel.  None of the information  24 contained in that affidavit can be tested and the  25 exhibits and appendices attached thereto are provided  26 without any direct statements or affirmations of the  27 proper custodians and knowledgeable people in the  28 Ministries.  29 Mr. Prelypchan, the person, counsel, who swore this  30 affidavit, is to be found at tab two of the blue book.  31 His affidavit, we say, is filled with statements made  32 on information and belief, about facts and on matters  33 which he states are true.  Mr. Prelypchan has no direct  34 knowledge, he simply went to people in the Ministries  35 and obtained their information and put it in as direct  36 hearsay, and I would point out, My Lord, that  37 paragraphs 3, 6, 7 and 8 of the Prelypchan affidavit  38 attest to this, and I will just read one of them, and  39 that's paragraph 3.  40 THE COURT:  Excuse me.  Just a moment, Mr. Rush.  Madam  41 Registrar would you go in my Chambers and find my copy  42 of the blue book.  43 MR. RUSH:  And it says this:  "Attached as Exhibit A to this my  44 affidavit is a copy of a memorandum entitled  45 alienations map and project dated April 13th," and that  46 memorandum was in fact prepared by counsel themselves.  47 "To the best of my information and belief", he says, 1186  1 "the facts and matters stated therein are true.  I have  2 confirmed with the signers thereof that each of the  3 letters constituting Attachment D to Exhibit A is an  4 accurate statement of the facts recited therein and I  5 verily believe that the contents of the same are true."  6 So he simply goes to the signers and he says to them,  7 what's contained in your letter.  He asked them if it's  8 true, they say yes and he deposes it to be true.  And  9 if you look at attachment D to Exhibit A --  10 THE COURT:  Excuse me, Mr. Rush, again, the first memorandum is  11 Mr. Prelypchan's affidavit the only affidavit tendered.  12 MR. RUSH:  It's the only material affidavit.  There is another  13 affidavit of Mr. McKinnon which is found at tab 3.  And  14 Mr. McKinnon is the manager of land surveys and  15 inventories of Public Works Canada, presumably -- he  16 has been requested by the Department of Justice of the  17 Government of Canada to provide technical assistance in  18 the production of maps, and so he deposes that certain  19 people under his supervision, including draft persons,  20 land surveyors, have cause to prepare 12 sets of the  21 following maps.  22 THE COURT:  Yes, all right.  23 MR. RUSH:  And then he enumerates them, and then he deposes on  24 page three a similar hearsay deposition, in my  25 submission, "In each case the map prepared under my  26 supervision is to the best of my ability a true  27 representation of the maps and information provided to  2 8 me."  29 Now, My Lord, we say the affidavits -- principally  30 that of Mr. Prelypchan -- is flawed for several  31 reasons.  Mr. Prelypchan cannot say anything about the  32 facts deposed to without considerable expertise and  33 intimate knowledge of the Ministries referred to.  He  34 relies solely on the unsworn letters of various  35 officers of the Ministry.  And I should point out that  36 that doesn't mean for one moment that we accept that  37 any of those letters are by -- even come close to the  38 kind of content that would be necessary to approve the  39 assertions that are contained in them.  40 The second point is that Mr. Prelypchan relies on a  41 memo of counsel for the defendant for the assertion  42 that -- in other words, he relies on himself for the  43 assertion that:  44  45 The accuracy of the maps is established by  46 means of letters which are attached to the  47 original Ministry returns, copies of which 1187  1 appear as attachments "D".  Where necessary,  2 the authenticity of the source documentation  3 is certified."  4  5 In the case of the traplines, My Lord, Mr. Bandy  6 confirms that to the best of his knowledge the map is  7 an accurate and a complete duplication of the official  8 map showing the registered traplines.  And there is a  9 series of these letters, and they represent attachment  10 D.  11 The first one is, I think, a letter from Mr.  12 McKinnon to Mr. Prelypchan dated February 13th.  The  13 second in line is the letter of Mr. Bandy, and it's to  14 a whom it may concern letter and it's a letter which  15 says, "this confirms, to the best of my knowledge, that  16 the map shows the status of the trapline".  17 In the case of the UREP's, if I may use that  18 acronym, Mr. Duffy certifies that it is a true copy of  19 a map prepared by his office and that the UREP's appear  2 0 on the map.  21 In the case of the water licenses, Mr. Bandy again  22 confirms that the map is an accurate and a complete  23 duplication of a map in his office.  Mr. Prelypchan  24 relies on the confirmations and certifications, if you  25 can call them that, of the Ministry officials.  And I  26 should say that in each case it appears that the -- you  27 have some supervising official who takes information  28 from other people in his department.  29 The confirmations and certifications themselves  30 depend on hearsay information, i.e. reliance on  31 in-house maps and specialized knowledge.  There is no  32 indication that those officials of the Departments are  33 in a position to express the hearsay and to attest to  34 the specialized information implicit in the statements.  35 The officials of the Departments and by extension  36 Mr. Prelypchan, make statements of opinion, that is to  37 say, as to what a map shows and we are asked to accept  38 them on the basis of their bald assertions.  39 None of the knowledgeable people who may be classed  40 as experts about the departmental information provided  41 Mr. Prelypchan with material nor themselves filed  42 affidavit material.  43 And then as to Mr. McKinnon's affidavit, we have no  44 information that he was someone who has special or  45 expert knowledge to give the opinions that the maps  46 presented are true representations of what they purport  47 to depict.  Again he relies, I think it is clear from 1188  1 his affidavit, on numerous officials in his Department  2 for his opinion.  3 Now, this process of expressing opinions on maps  4 without the right to examine the deponents is to be  5 contrasted with the procedures adopted by the  6 plaintiffs where we tender two expert opinion reports  7 and there is supporting material to verify the  8 boundaries and territorial areas of the Plaintiffs  9 contained in the maps presented in evidence.  One of  10 these experts, Mr. Sterritt, has been examined in  11 discovery at length on his opinions and supporting  12 documentation.  On a matter of such importance, the  13 Provincial defendant, we say, cannot rely on hearsay  14 and double hearsay to support matters of opinion  15 contained in their alienation maps without proof in the  16 proper manner.  17 As a general matter, as to whether the material  18 contained in the document source books could possibly  19 support the opinions asserted by the depiction of the  20 maps, I say that you cannot make this determination  21 based on the documentation or on the accuracy of the  22 maps.  For example, if you were to adjudicate a placer  23 mining claim dispute based on the assertions of what is  24 said to be in the government records, surely you would  25 demand that each claimant would have to prove where he  26 says his claim is located.  It would be as to the  27 evidence led that you would make the adjudication.  You  28 cannot make any assumptions based on what is said to be  29 true boundaries of the mineral tenures depicted on the  30 map.  I say there is no unqualified description of a  31 boundary and they should not be accepted as true.  32 Now, My Lord, I turn now in this argument to an  33 evaluation of the five maps sought to be admitted by  34 the Province.  The general point I make about them all  35 is that what is depicted on the map has no relation to  36 what exists on the ground.  There is a strong  37 implication which we are asked to accept that because  38 the maps show a particular boundary or area or marking,  39 that these exist in reality on the ground.  We don't  40 accept this and neither should the court.  The  41 Defendant has burrowed through its files and from its  42 paper record, has constructed a series of maps said to  43 correspond to the physical reality on the ground.  This  44 assumption is not proved in the material and indeed  45 there are strong reasons to suggest that it is  46 otherwise.  47 I want to turn first to the registered trapline 1189  1 map.  2 We are advised by way of a procedures memo from Mr.  3 Bandy, dated January 5, '87, and that's to be found at  4 tab A of the supporting documentation from map 2, and I  5 am quoting from that tab, that the trapline map was  6 prepared in the following way:  7  8 "For the trapline maps, it was first  9 necessary to reduce the scale of the  10 original maps to the same scale as that of  11 the lis pendens map.  This was done  12 photographically and the individual sheets  13 were taped together to form a trapline map  14 of the entire lis pendens area."  15  16 At Tab C Mr. Marshall, one of the officials in that  17 particular department, says that the "trapline  18 boundaries are shown on 1:126,000 scale maps and the  19 appropriate map reference number is shown after the  20 trapper's address."  Exhibit 24A is therefore a  21 composite map of all the separate trapline maps in the  22 Skeena sub-region.  If the trapline was registered with  23 the old license form, an example of which is at map two  24 supporting documentation at Tab D, which is page 35 in  25 the material, a legal description is provided on the  26 application form.  It has been our experience that in  27 many cases the legal description does not match the  28 maps that are the basis of Map 2.  These discrepancies  29 are readily admitted by the Ministry of Environment  30 officials and as a result a new license system and form  31 had been introduced, and that's to be shown as an  32 example at Tab D.  Now, if I may just refer Your  33 Lordship to that at Tab D.  There is an application for  34 registration after a trapline at page 35 and there  35 contained is a description.  36 Now, that description is said to correspond or we  37 are led to believe that it is said to correspond with  38 the outlines of the boundary of the trapline, or does  39 it.  And then you will see on the next page, on page  40 36, a British Columbia trapline registration document,  41 which is dated October 23rd, '86 to a Mr. Mason, and  42 there it is said that the boundaries of which are  43 approved by the Regional Manager pursuant to the  44 Wildlife Act and Regulations and outlined on the  45 attached map is registered to the registered holder.  46 There is no indication whether or not the application  47 of the geographical description of the trapline is the 1190  1 same as that which is said to be described in the  2 apended map.  3 In this procedure, in this new procedure dated  4 1986, the boundaries are determined not by the trapper  5 but by the Ministry of Environment Regional Manager.  6 The trapper, apparently, is presented with a copy of  7 the relevant part of the Ministry's trapline map after  8 his registration has been approved.  Section 3.13 of  9 the Wildlife Act provides that "the boundaries of a  10 registered trapline shall be defined by the regional  11 manager".  Thus, even after the application has been  12 made, the discretion rests with the regional manager to  13 plot the map.  14 Now, in our submission there is no indication that  15 in signing this registration, the trapper is attesting  16 to the accuracy of the map or indeed to anything other  17 than his name, address and a trapline number.  There is  18 no evidence that any of the government officials went  19 out on the ground with the trapper or even reviewed the  20 boundaries with him on an appropriately accurate and  21 clear map in the office prior to registration.  Also  22 there is no indication in the supporting documents  23 which of the traplines are registered under the old  24 license forms and which under the new ones.  25 How then did the boundary containing the trapline  26 area get created?  In our submission, there is no way  27 of knowing that the roughly drawn lines on the boundary  28 maps correspond with any trapline description or with  29 any recognizable physical features on the ground.  30 Also, it is clear that different maps produced at  31 different times, dependent on different legal  32 descriptions, may well result, obviously, on quite  33 different maps.  34 Now, these boundaries, we say, have direct bearing  35 on the case.  In the cross-examination of Mary Johnson,  36 the overlap between the boundaries of the trapline  37 territory and the witness's territory was put to the  38 witness, we gather, because the Province wishes to  39 later argue that the traplines have superceded Chief's  40 territories or jurisdiction over such territories.  The  41 accuracy of these trapline boundaries is a matter of  42 some importance.  43 Based upon the total lack of supporting information  44 to show the accuracy of the boundaries as reflecting  45 trapline applications, we cannot accept the boundaries  46 description of the traplines as asserted.  Nor, we say,  47 should the Court accept their descriptions. 1191  1 It is said further, in the supporting documentation  2 book, that the information contained in the book are  3 documents kept in the ordinary course of business of  4 the Ministry of Environment and Parks.  This is a  5 certification to Mr. Goldie.  It is unsworn and made by  6 someone whose signature, in this case, is  7 indecipherable.  With respect, I say this is not  8 sufficient.  9 Without considerably more evidence the court cannot  10 accept this bald statement that the documents were kept  11 in the ordinary course of business of the Ministry.  12 And this brings into place Section 48(1) .  This section  13 allows business records to be admitted in certain  14 situations.  We cannot presume that in every situation  15 government activity constitutes a business for the  16 purposes of this section.  And I have set out this  17 section at the bottom of page 10.  18 Now, My Lord, in our submission, Section 48(1) does  19 not permit evidence that entries or records were made  20 in the usual and ordinary course of business by way of  21 an affidavit nor by a certifying letter made to  22 counsel.  The case that's relevant on this is the case  23 of Meier and Hazelwood, a decision of Mr. Justice Toy,  24 and I have provided you with that case at Tab 1.  This  25 is a decision involving the application of Section 30  26 of the Canada Evidence Act.  And in this case counsel  27 for the State of Victoria -- excuse me, State of  28 California, sought to admit -- have admitted into  29 evidence an affidavit concerning the records of birth  30 and death of one, Ivor Robertson.  And you can see at  31 the bottom of the page, 297, that Mr. Simons in that  32 case deposed to the fact that it was not possible to  33 produce the original records, that he made copies of  34 the original records and that the copies prepared are  35 authentic, and that the affidavit was admissible under  36 30(3) of the Canada Evidence Act.  Mr. Justice Toy then  37 set out Section 30(1), and I'll read it:  38  39 "Where oral evidence in respect of a matter  40 would be admissible in a legal proceeding, a  41 record made in the usual and ordinary course  42 of business that contains information in  43 respect of that matter is admissible in  44 evidence under this section in the legal  45 proceeding upon production of the record."  46  47 Now, in my submission that is similar, if not 1192  1 identical to the language as set out in Section 40(1)  2 of the B.C. Evidence Act.  And he goes on to say:  3  4 "Unlike in subsection (3) of s. 30, I find  5 no authority in s. 30(a) to permit evidence  6 that the entries or records were made in the  7 usual and ordinary course of business by way  8 of deposition or affidavit."  9  10 He then sets out subsection six and continues in  11 this way:  12  13 "My examination of the preceding sections of  14 the preceding subsections of s. 30 suggests  15 that subsections (1) and (2) must be  16 satisfied by the calling of oral evidence,  17 and subsections (3) and (4), if the  18 pre-conditions therein specified are met,  19 permit the use of affidavit evidence.  In my  20 judgment, it is for that reason that the  21 legislation was drafted permitting the two  22 alternate modes of supplying the evidence  23 and not for the purpose of allowing proof by  24 way of an affidavit of all matters of  25 admissibility envisaged in s. 30."  26  27 And then he concludes by saying, having recited  28 again subsection two:  29  30 "Those words, unlike the combined effect of  31 s. 30(1) and (6) make it crystal clear that  32 the manager or accountant may orally or by  33 affidavit depose inter alia to the fact that  34 'the entry was made in the usual and  35 ordinary course of business'.  Accordingly,  36 insofar as the admissibility of the copies  37 of entries of birth and death records are  38 concerned, unless satisfactory oral evidence  39 is subsequently received or other argument  40 advanced that I have not yet heard, they  41 will not be admissible in evidence at this  42 hearing."  43  44 Now, it's my submission, My Lord, that this case  45 applies with equal force to the fact pattern here,  46 where the assertions that documents, voluminous numbers  47 of documents are kept in the usual and ordinary course 1193  1 of business made by counsel is not sufficient to  2 satisfy Your Lordship that in fact the prerequisites of  3 Section 48(1) have  been complied with.  4 THE COURT:  Is there any distinction to be made in a case such  5 as the one before Mr. Justice Toy which was extradition  6 and the liberty of the subject was at stake, and it was  7 in the nature of criminal or quasi criminal proceedings  8 to which Rule 40 wouldn't apply, and in this case which  9 is a pure civil action to which Rule 40 does apply?  10 MR. RUSH: I can see none, My Lord.  I think it's a matter of  11 principle.  I think Mr. Justice Toy addressed the  12 principle issue and that it is not to be distinguished  13 by the fact of the nature of the proceedings.  I think  14 that case would apply with similar force in respect of  15 of any civil proceeding under a federal statute.  And  16 in my submission, it is the words in proceedings where  17 direct oral evidence of a fact, and that is the similar  18 language that was relied upon by Mr. Justice Toy under  19 Section 30 (1) of the Canada Evidence Act.  Those are  20 the operative words, and I think there are good reasons  21 why that is so, because the simple assertion by  22 somebody that documents are kept in a manner so  23 asserted is not good enough to satisfy Your Lordship  24 that the procedure, the shortcut procedure of Section  25 48(1) should be invoked.  26 And furthermore, My Lord, I want to point out that  27 in the evidence of this case, it is clear that from the  28 documents sought to be admitted by the counsel for the  29 Provincial Defendant in the cross-examination of Mary  30 Johnson as to her trapline, that there is considerably  31 more information in the trapline files which may not  32 have been collected in the usual and ordinary course of  33 business, and as such, although a dossier of documents  34 was presented to or admitted because they were  35 identified by the witness, in my submission we just  36 cannot accept as a given that because something happens  37 to be in a government file that therefore it is kept in  38 the usual and ordinary course of business.  39 Further, it is by no means clear that it was in the  40 usual and ordinary course of business, that a statement  41 of fact contained in the document was intended to be  42 made in the course of business.  Hence, it is our  43 submission that the documents and facts contained in  44 those documents cannot be accepted for the accuracy or  45 truth of the matters for which they purport to speak.  46 Now, Mr. Justice Taylor in another case, the  47 Canadian Imperial Bank of Commerce case, which is to be 1194  1 found at tab 2, deals with the nature of the operation  2 of Section 48(1) of the Evidence Act.  Now, he found  3 that records of a bank -- I should point out, My Lord,  4 that that appears -- the relevant portion is at Tab  5 2wo.  6 THE COURT:  Yes, I have it.  7 MR. RUSH:  That the records of a bank kept in respect to a  8 running account of a customer cannot be accepted as "a  9 statement of fact" and as such is intended by the  10 statute for there remain in the absence viva voce  11 evidence of such person concerned with the keeping of  12 the account, too many doubts of accuracy.  13 I just want to refer you to the relevant passage  14 setting out the facts, appears on page 2 at lines 13 to  15 21.  I think there is some analogies to be drawn  16 between what faced Mr. Justice Taylor and what faces  17 Your Lordship.  18  19 "The only evidence of the principal  20 indebtedness tendered, if it is indeed  21 evidence, consists of the account cards kept  22 at that branch in question.  These show  23 credits, debits and a running balance, as  24 entered daily by some members of the bank  25 staff.  The sole witness for the plaintiff,  26 the branch manager, had no knowledge of the  27 transactions recorded.  He said he could  28 only assume that credits were properly  29 recorded and that the debits shown  30 represented cheques, and other withdrawals  31 properly made on behalf of the customer by  32 his authorized signing officer.  He has no  33 more knowledged than the defendants of these  34 transactions.  35  36 THE COURT:  But the running accounts records were admitted.  37 MR. RUSH: He gave evidence.  He was there providing oral  38 evidence.  39 THE COURT:  All right.  40 MR. RUSH:  At the bottom of the page three, the issue is  41 proposed by by Mr. Justice Taylor:  42  43 "Can a plaintiff prove the existance and  44 amount of a debt simply by entering its own  45 books of account in evidence under Section  4 6 4 8 of the Evidence Act.  47 Applying Section 48(1) to the 1195  1 circumstances of the present case, I must  2 seek a "fact"  recorded at the time it  3 occurred or within a reasonable time  4 thereafter.  The section cannot, I think, be  5 applied so as to approve that cheques  6 debited to a particular account was properly  7 debited.  That depends, of course, on  8 whether the cheques were properly executed  9 by the customer, something which may have  10 occurred days, weeks, or even months, prior  11 to the date the entry was made, and as to  12 which the bank employees can have no more  13 than an opinion.  Nor does it seem possible  14 that failure to record a credit in such a  15 record is evidence that there was none which  16 ought to have been made.  Certainly the  17 experience of mankind would not support a  18 general presumption to that effect and there  19 is no basis for it in the evidence of the  20 case."  21  22 His conclusion, then, at line 19:  23  24 "I conclude that the fact contemporaneously  25 recorded by each entry on the cards is that  26 on the date shown the particular debit or  27 credit was made by the plaintiff to the  28 customer's account.  I do not accept that  29 the account record is proof that the debits  30 were properly authorized, or that there were  31 no unrecorded credits."  32  33 And then he goes on at the bottom of the page:  34  35 "But here the defendants know no more about  36 the banking transactions than the manager.  37 I do not accept the contention that the  38 Court can place any reliance in such  39 circumstances on the mute record of the  40 account."  41  42 No more, I say, can you play reliance on the mute  43 record of these documents of a vast array of documents  44 that have been presented to you to support these 5  4 5          maps.  46 Now, at least in this case, My Lord, there was a  47 remedy given as a result of that decision.  I believe 1196  1 it was granted to open the case for further oral  2 evidence.  3 Now, I say -- and I am continuing at the middle of  4 page 12 -- it cannot be accepted on the strength of the  5 assertions of Mr. Prelypchan, Mr. Bandy or Mr. Marshall  6 that the area of the traplines is as indicated in the  7 supporting documentation.  Here, I say, there is a mute  8 record, it does not speak and if it does speak, it  9 should speak through a witness.  10 THE COURT:  Mr. Rush, I notice it's three o'clock and I think  11 the Reporters want to change station.  12  13 (PROCEEDINGS ADJOURNED FOR A BRIEF RECESS)  14  15  16  17 I HEREBY CERTIFY THE FOREGOING TO BE  18 A TRUE AND ACCURATE TRANSCRIPT OF THE  19 PROCEEDINGS HEREIN TO THE BEST OF MY  20 SKILL AND ABILITY.  21  22  2 3 LORI OXLEY  24 OFFICIAL REPORTER  25 UNITED REPORTING SERVICE LTD.  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 1197  1 THE REGISTRAR:  Order in Court.  2 THE COURT:  Mr. Rush.  3 MR. RUSH:  Continuing on with page 12 of the argument.  4 THE COURT:  Thank you.  5 MR. RUSH:  This deals with the second batch of the maps and  6 supporting materials sought to be admitted into  7 evidence, the UREP's as they've been called.  8 The supporting documentation is in reference to Map  9 3.  The thin grey document book said to supply  10 supporting documentation for Map 3 contains lists of  11 licences of occupations -- occupation, rights of way  12 and UREP's.  It also contains computerized descriptions  13 of file and document numbers.  We are asked to accept  14 these as an article of faith.  There is no way to test  15 this information on the basis of the affidavit  16 declarations.  It is impossible to determine from the  17 fat supplement to Map 3, said to be an example of Map  18 3, what the boundaries of the public recreation reserve  19 are.  This information is based on a host of opinions  20 and actions apparently taken by various officials  21 within the Lands Branch.  This is said to be one of the  22 many hundreds of examples sought to be verified through  23 the end product of the map itself upon which we are  24 asked to agree that the map is an accurate depiction of  25 the boundaries indicated.  We have not viewed these  26 other examples.  We cannot take the descriptions or the  27 areas said to be contained within UREP's or rights of  28 way, et cetera, to be accurate.  We have no way of  29 knowing whether these UREP's or rights of way were in  30 fact built or built on the ground in the place said to  31 have been mapped.  32 And I make again the point that there's no basis  33 upon which Mr. Duffy's so-called certification can be  34 accepted as accurate or unquestioned.  That's in  35 Attachment D, the mineral tenures.  36 Mr. Goldie concedes the difficulty entailed in  37 describing the over 4,000 alleged reported claims.  He  38 says this is a record of all mineral tenures in the  39 land claim area as of October, 1984.  40 The allegation that the departmental printout gives  41 a number of the claim, a date of the issuance and when  42 it was located is nothing more than a rough guide to  43 the claim locations.  A mineral claims location is  44 determined by the claim posts on the land and not by  45 departmental maps kept in the files.  We understand  46 that these maps are based on the sketches and  47 descriptions of the claim location, and we cite an 1198  1 example at Map 14, and may or may not be verified as to  2 the approximate location by a government official (a  3 claims inspector).  Under the Mineral Act, if claims  4 are proved productive, then the claims have to be  5 surveyed.  6 While there may be a name of a recorded owner, this  7 does not assist us as to the location of the claim.  8 Now, Section 20 of the Mineral Act, which is set  9 out at Tab 4, sets out the procedure whereby a mineral  10 claim is recorded.  Section 48 of the same Act deals  11 with priority where there is a dispute to the claim.  12 Section 54(2) deals with the evidence necessary to  13 support this surveyed mineral claim, and it holds:  14  15 "Evidence of the location of a surveyed  16 mineral claim on the ground may be given by a  17 person who has seen and can describe the  18 position of the monuments on it, and the  19 field notes or a certified copy of them,  20 shall be received in a Court as proof, in the  21 absence of evidence to the contrary, of the  22 evidence given or of the facts which the  23 notes set out."  24  25 Clearly, the Section contemplates certain types of  26 acceptable evidence.  27 These sections are intended to deal with disputes  28 as to the location of a claim.  It is clear that  29 everything in the Act depends on location.  Section  30 54(2) contemplates that the ultimate evidence to  31 adjudicate a claim dispute depends on the surveyor's  32 field notes of that claim.  Now, no surveyor's field  33 notes of any of the claims alleged to support the  34 location of the claims on the mineral tenure map have  35 been produced.  36 Now, dealing with the water rights.  The  37 transmittal letter for the supporting documentation of  38 Map 25 from Mr. Smith to Mr. Goldie contains what is  39 said to be "true copies of stream registers for  40 precincts" which are then numbered.  These are  41 computerized listings identifying reserves by number.  42 The background information provided by a Mr. Robinson  43 at Tab C differentiates between active and inactive  44 water licences.  He notes the outstanding applications.  45 Once again it is impossible to know the current status  46 of the existing water licences, or, if in fact, the  47 diversions so licensed are in place.  As your lordship 1199  1 observed about the flume, it may or may not be in  2 place.  And this observation indicates the underlying  3 fallacy in the material.  There is no assurance that  4 the maps and the locations of the water sites are in  5 place at the location where they are said to be used  6 under the licence.  And this again speaks to the  7 underlying unreliability of the maps.  Again, the  8 argument that the documents are kept in the ordinary  9 course of business cannot be sustained on the law.  10 Now, finally dealing with the district lots.  The  11 arguments which have already been made apply with equal  12 force to the depiction of the surveyed district lots  13 contained on Map 12 tendered by the Province.  The fact  14 that there is a survey district lot says nothing about  15 the ownership of the lot or the accuracy of the survey.  16 These documents cannot be admitted for the purposes of  17 the truth of the contents of the statements made  18 therein.  19 In the notice of motion the defendant seeks to  20 tender some five facts depicted in the particular maps  21 together with the volumes of supporting documentation.  22 Each so-called fact contains a host of subsidiary facts  23 and statements of opinions.  What is really being  24 advanced here is a body of separate opinions in the  25 form of the maps.  It is necessary to call expert  26 evidence to attest to the opinions of the description  27 of the maps just as we are required to call opinion  28 evidence to prove the Gitksan and Wet'suwet'en  29 territorial map.  In this case the opinion should be  30 set out and tested by our cross-examination.  I don't  31 intend to refer you to the King Case.  32 Further, where a party seeks to invoke Rule 40(41)  33 so as to present affidavit evidence to prove a  34 particular factor or document, the Court should not  35 grant leave lightly.  And although the case deals with  36 the introduction of evidence in divorce proceedings,  37 Hogg and Hogg I think is instructed.  If you'll turn,  38 my lord, to Tabulation 5, the decision of His Honour  39 Judge McTaggart considers Rule 40(41) at page 54.  And  40 he sets it out in the middle of the page partway beyond  41 the middle.  He says:  42  43 "No application has been made by counsel for  44 the plaintiff under the latter subrule prior  45 to the trial.  At the hearing he submitted in  46 a general fashion that the above affidavit  47 was admissible.  In my view where a party 1200  1 seeks to rely on affidavit material he should  2 apply prior to trial.  If he does not and  3 applies at the hearing itself, he runs the  4 risk that he may be refused, thereby  5 prejudicing his client's position.  Leave  6 should not be granted lightly.  7 In the present case I infer that counsel,  8 although he advanced no specific grounds, now  9 asks leave to have the affidavit admitted as  10 evidence.  I have considered its contents and  11 it corroborates some of the other evidence."  12  13 And I think here the material words, my lord:  14  15 "The affiant resides in England (at least at  16 the date it was sworn).  The defendant was in  17 Court during the hearing but at no time did  18 he object to any of the evidence nor seek to  19 take part in the trial."  20  21 Now, he then goes on to say:  22  23 "In view of the above special circumstances,  24 I grant leave to introduce the said affidavit  25 as evidence."  26  27 Now, my submission, my lord.  There are no similar  28 special circumstances that would warrant the granting  29 of leave if leave could otherwise be granted to avoid  30 the legal difficulties of Section 48(1).  As I say, in  31 the special circumstances in Hogg that the affidavit  32 corroborated some of the other evidence, that the  33 affiant resided in England, and that the defendant was  34 in Court during the hearing but did not object to any  35 of the evidence, the judge granted leave to introduce  36 the affidavit as evidence.  And I say that these  37 special circumstances are not warranted on the facts of  38 this case.  These people -- the affiants can be called.  39 There are people that can be called to give testimony  40 to attest to the facts as sought to be proved by the  41 defendants.  42 Now, my lord, I want to refer you to perhaps what  43 is trite, but I think it's worth saying nonetheless.  44 At Tab 7 the general rule as to the way evidence that  45 should be taken in a proceeding of this kind, one  46 involving complicated and complex issues, is set out at  47 Rule 40 (2) : 1201  1  2  3 "Unless otherwise agreed by the parties and  4 subject to any enactment and these rules, a  5 witness at the trial of an action shall  6 testify orally in an open court."  7  8  9 Now, my lord, the consideration of the application  10 of this principle was made by the Court in Re McDonald  11 and Town of Listowel at Tab 8, and it's at the bottom  12 of this page that I wish to direct your lordship's  13 attention, beginning with the consideration of the  14 Attorney General of Metropolitan District Case.  In  15 that case, a question arose -- and I'm reading from the  16 judgment of Chief Justice Moss.  17  18  19 "A question arose as to the propriety of  20 ordering the evidence to be taken viva voce  21 at the hearing, instead of by affidavits  22 under the Equity Exchequer Rules of 1866, and  23 the Court of Appeal held, reversing the  24 Exchequer Division, that the case was one in  25 which the evidence should be taken orally.  26 Sir George Jessel said that when the rule in  27 question was made, the practice on the Court  28 of Chancery and on the Equity side of the  29 Court of Exchequer was not to take evidence  30 viva voce, unless in certain exceptional  31 cases; but since the passing of the  32 Judicature Act, the Court could always take  33 evidence viva voce.  After discussing the  34 effect of the Act upon the former practice,  35 he said:  'It appears to me that, having  36 regard to the present state of the law with  37 regard to evidence, the judge should in every  38 case of contested or disputed fact coming on  39 to be tried take the evidence orally, unless  40 some good reason to the contrary is shewn.'  41 Lord Justice Cotton pointed out the principle  42 which under the rule there in question should  43 guide or determine whether the evidence  44 should be by affidavits or viva voce, as  45 follows:  'Affidavit evidence should prima  46 facie be given in all those cases in which  47 there is no real conflict of fact" -- 1202  1  2  3 Well, here, my lord, there's clearly a conflict of  4 fact.  5  6  7 "and where no explanation of facts is  8 necessary in order to enable the Court to  9 come to a decision."  10  11 And I say with respect, if there isn't an issue on the  12 first, there certainly must be an issue as to the  13 second.  14 THE COURT:  Mr. Rush, how can -- how can these cases be used as  15 authorities in -- in a case of this kind?  I commented  16 on this in a case called Peter Kiewit and B.C. Hydro  17 where the -- the principle of the production of  18 documents was in question and counsel always referred  19 to the one of the New Sombrero --  20 MR. McKENZIE:  Peruvian Guno.  21 THE COURT:  Well, the Peruvian Guno Case states that anything  22 that might possibly be relevant must be disclosed,  23 and -- and that case was decided in a context where the  24 total volume of documents was a small portfolio of  25 documents, and to take that and apply it to a major  26 construction case where you've got a building full of  27 documents or a case like this where you've got the kind  28 of masses of documents that Mr. Goldie suggests and if  29 you apply that kind of authority, you're proceeding  30 under a system that can only be described as logic gone  31 mad.  How can -- how can it be said that simple case --  32 principles of decided simple cases can just be taken  33 holus-bolus and apply it to a case of this kind?  34 MR. RUSH:  I don't think your lordship should categorize into  35 fixed categories without taking into account that there  36 are obviously principles that guide us in making these  37 determinations, and in my submission, your lordship has  38 to be guided by some principles, and what I'm trying to  39 do here is to set some parameters around what it is  40 that -- in order to assist your lordship to find a way  41 to make a decision here.  Now --  42 THE COURT:  I appreciate that.  I just have so much difficulty  43 in seeing what Chief Justice Moss said in -- in 1903,  44 when the longest trial that was probably held up to  45 that time in Ontario was probably a couple days or  46 maybe a week, but the type of trial we're dealing with  47 here is so foreign to that concept that I have to outlined  1203  1 assume that Chief Justice Moss wouldn't have said what  2 he said if he had this kind of case in mind.  3 MR. RUSH:  In my submission, my lord, basically the rules here,  4 our rules, Section 40, tracks the principles  5 in this case.  And I think the basic rule here is where  6 there are contested facts, evidence is given viva voce.  7 THE COURT:  There's no doubt with that being the general  8 principle, but is it logical and sensible?  I'm sorry.  9 It may be logical, but is it sensible to apply it to a  10 case of this kind?  11 MR. RUSH:  Well, my lord, I say a good deal more than what has  12 been presented by my learned friends is required --  13 THE COURT:  Yes.  That's —  14 MR. RUSH:  -- here in order to justify this material, and I only  15 present to you -- what I can say to you in response is  16 look at what the plaintiffs have done.  The plaintiffs  17 have produced a map wherein two experts have spent a  18 considerable period of time authenticating the  19 boundaries of the external boundaries and the internal  20 boundaries on the ground, and you have by contrast the  21 Provincial Defendant coming forward with its -- what it  22 says to be the case in its files and relying on  23 evidence from its own counsel, asking that evidence to  24 be submitted in Court and we're asked to accept it.  25 And I say when you contrast the two procedures, you  26 cannot accept that method of introducing evidence where  27 the evidence is so important to the Provincial  28 Defendant.  And I say that when you look at the  29 underlying principle, that there is a conflict in many  30 areas of this evidence, and I don't mean to say in all  31 of these areas.  I think there is areas where there is  32 no contest, but that is only to be known, in my  33 submission, by people properly coming forward and  34 allowing us to test this information against the people  35 who have the knowledge and who are the custodians of  36 this information, and not on the basis of statements  37 made by counsel.  38 And as I say, my lord, I think that these are not  39 principles, and I'm not advancing them with the purpose  40 of having them slavishly followed because I concede to  41 your lordship that this is not a case where those  42 principles should apply holus-bolus, and I'm not asking  43 that, but I do say that if I'm to draw the broad brush  44 strokes of the principles that should guide you in  45 making this decision, that principle that if there is a  46 conflict in the evidence, then you  47 should hear orally about the -- the nature of the 1204  1 evidence to be presented if we are to accept it as  2 truth.  3 Now, my lord, I come back to the bottom of page 17,  4 and it appears on the -- from what we've seen by the  5 defendant's pattern of cross-examination that the  6 justification for introducing its alienation evidence  7 at this point is that the Province wishes to put  8 certain of the maps or material to our witnesses in  9 cross-examination.  And as I said at the beginning of  10 the trial, they don't need to have admitted into  11 evidence any of the documentation or indeed the maps  12 themselves in order to achieve that purpose.  13 Now, on a collateral matter, I have cited several  14 cases here, but simply the proposition is that the  15 contents of a written instrument can be proved only by  16 the instrument itself and cross-examination founded on  17 a paper read, but not in evidence, is not permissible,  18 even for the purpose of testing the credibility of the  19 witness.  20 It's our submission that the proper way to proceed  21 for the defendant is as they have done with Mary  22 Johnson, and that is, if they wish to put information,  23 a map or other documents to her, to put the maps or  24 materials to the witness in cross-examination, and if  25 they can be identified, then they can be admitted into  26 evidence.  Otherwise, in my submission, there can be no  27 general admissibility of the supporting documentation  28 of the maps or the maps for the opinions which they  29 purport to represent.  30 And that's our submission with respect to those  31 documents.  32 THE COURT:  Thank you.  Mr. Macaulay, do you want to — or Miss  33 Koenigsberg?  34 MS. KOENIGSBERG:  No.  We have no further submission.  Thank  35 you.  36 THE COURT:  Mr. Goldie?  37 MR. GOLDIE:  My lord, my friend keeps talking about a conflict  38 of facts.  I don't know what conflict he's talking  39 about.  I don't recall him identifying them, but the  40 whole point of this is to avoid conflicts of fact, and  41 it may be instructive for your lordship to take the  42 blue book, if you would, and turn to Mr. Prelypchan's  43 affidavit.  And I will draw your lordship's attention  44 to the history of this matter.  And I -- I will also be  45 asking your lordship to recall that during the course  46 of the pretrial conferences, a number of  47 references were made to the so-called alienations 1205  project and throughout the purpose was to see if we  could find agreement.  I'll come back to that in a few  minutes, and the result of being unable to find  agreement.  But I look at Mr. Prelypchan's affidavit  under Tab 2 and I refer to Exhibit B, which is my  letter to my friends Mr. Rush and Mr. Grant of March  the 16th, and I say:  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  "I write to advise of our progress in  developing what has been called the  alienations project.  We have had two  obj ectives."  And then I set out these objectives and some of the  difficulties that we have experienced, and then I say:  "The nature of the material which has been  assembled" --  THE COURT:  I haven't found B yet.  MR. GOLDIE:  B follows —  THE COURT:  I'm getting close though.  MR. GOLDIE:  It's quite a ways on.  What follows the affidavit  is attached.  THE COURT:  Maybe start it from the beginning.  I have it.  Thank you.  MR. GOLDIE:  Does your lordship have it now?  THE COURT:  Yes.  Thank you.  MR. GOLDIE:  I'm on page 2, the third-to-last paragraph:  "The nature of the material which has been  assembled will require some explanation.  I  invite you to attend at our offices on March  31st, and if necessary, April 1st at which  time we will deliver such material as is  complete and explain it and the overall  project to you in greater detail.  The  invitation is extended to you as counsel.  Further meetings will be anticipated at which  time you may wish to have advisers with you."  And the reply to that is Exhibit C in which Mr. Rush 1206  1 states:  2  3 "I have your letter of March 16th.  The  4 proposal which you make inviting us to attend  5 a meeting is inconvenient to us.  We propose  6 in lieu of your dates that we review the  7 material which you have assembled on Monday  8 April 13th.  9  10  11 And he states he wants to have his advisers.  And Mr.  12 Plant referred -- replied to that on March the 23rd,  13 and that's Exhibit D.  He said:  14  15 "April 13th is convenient to us.  We will  16 arrange to meet with you in our offices at  17 8:30 a.m. on that day and will let you know  18 of the exact location of the meeting room in  19 due course.  We do not object to the  20 attendance of your advisers.  As our  21 facilities are limited, will you please  22 advise us of the number who will be  23 attending?"  24  25 That reply, of course, was dated the same day as  26 the -- as the letter in question.  27 And then my friends wrote back on April the 9th --  28 This is Exhibit E -- stating that they would attend on  29 April the 13th, but stating that:  30  31 "Before we proceed with the review of your  32 material, we feel that it is necessary for  33 you to set out what you see is the purpose  34 for the presentation of your project.  35 Further, there should be, in our view, a  36 written summary provided to us before Monday  37 explaining what it is that your advisers will  38 be disclosing to us about the way in which  39 your alienation maps were prepared.  We  40 expect to receive this information by  41 Friday."  42  43 And again on the same day, Mr. Plant referred to  44 that --  replied to that, and that's Exhibit F.  45  46  47 "I enclose a draft of a written memorandum 1207  1 which I am preparing for use on Monday which  2 should address most of the requests in your  3 letter.  The delays in the delivery material  4 mean that the meeting cannot commence at  5 8:30.  We ask that you attend instead at  6 9:30."  7  8  9 And then the -- the reply to that the next day was  10 that:  11  12  13 "We are unable" --  14  15 And this is Exhibit G:  16  17 "We are unable to attend the review of your  18 proposed alienations project", and stating  19 that:  "Mr. Grant and I and our advisers have  20 unalterable commitments in the north on  21 Monday."  22  23 It's rather surprising that that occurred in the  24 interval between April the 9th and April 10th.  25 The memorandum to which Mr. Plant referred is  2 6 Attachment A and that immediately follows Mr.  27 Prelypchan's affidavit.  It is Exhibit A, I should say,  28 and it sets out the objectives, the development, and  29 how it has gone about, the method in which was being  30 followed, the fact that an attempt was made to follow a  31 computerized programme, and this was abandoned because  32 it was not sufficiently responsive to our needs,  33 reference to accuracy, technical assistance being  34 provided by the real estate services group of the  35 public works in Canada, and so on and so forth.  And  36 then at the end of page 7:  37  38  39 "Proposal.  It is proposed that all parties  40 agree to the admission of the material  41 comprising the alienations project as more  42 particularly described in Attachment E to  43 this memorandum as proof of the contents  44 thereof for all purposes at trial."  45  46  47 Now, my lord, my friend has suggested that it is in 1208  1 the Provincial interest alone that this be admitted at  2 this point.  In fact, it is to the Provincial interest  3 not to tender this evidence at all.  And I say that  4 because the plaintiffs are seeking damages for  5 alienations.  That is to say, that they seek from the  6 Province compensation that for everything which the  7 Province has done under the heading of alienations in  8 the land claims area.  It would be to the Province's  9 interest simply to sit back and say, well, go ahead and  10 prove those alienations.  We asked for particulars of  11 the alienations that are pleaded, and the response we  12 got was that that is the knowledge -- that knowledge is  13 within the knowledge of the defendant.  If the Province  14 followed that and simply sat back and said you prove  15 the alienations, we would have the prospect ahead of us  16 of presumably the plaintiffs doing precisely what we  17 have attempted to do, because if they don't do that,  18 they run the risk of having that -- that claim for  19 damages dismissed.  20 Now, there is an agreement with respect to damages,  21 but it expressly reserves the right to -- on the part  22 of the defendants to say at the close of the  23 plaintiff's case, you haven't proven the basis for any  24 damages.  But it seemed to the Province's advisers that  25 it was in the interests of both parties -- and this is  26 why agreement was sought.  It was in the interest of  27 both parties at one time, all parties now, that there  28 be some common basis for alienations within the claims  29 area.  30 Now, with that background, my lord, I want to turn  31 to the submissions my friend has made in his written  32 argument.  On page 1 he makes reference to the rules in  33 question.  He appears to suggest that the -- Rule  34 40(42) has nothing to do with admissibility.  I take  35 that from the last line on that page.  Well, I think  36 the Hogg and Hogg Case disposes of that.  The affidavit  37 is admitted for the purposes of proving facts.  The --  38 we have complied with these rules and we have  39 endeavoured to do it by agreement before the case  40 opened, but, in any event, it was in our view desirable  41 that we do it right away.  42 There is a number of places in my friend's  43 submission, and I refer to page 3.  No.  I think a  44 better example is -- well, at the bottom of page 3 and  45 over the page on page 4, there is a criticism of the --  46 of the information available to Mr. Prelypchan when he  47 swore his affidavit.  I don't think it is -- it is a 1209  1 criticism which requires your lordship to reject the  2 application.  It is simply one which goes to the nature  3 of the discretion which your lordship may be inclined  4 to exercise.  But I was going to say there are -- there  5 is an assumption that in some way these maps are  6 supposed to represent what is on the ground.  That's  7 not the purpose.  The purpose is to indicate where, how  8 and to what degree we can when alienations were  9 exercised.  That is to say when the province granted to  10 somebody rights to do something.  Now, whether that  11 person did those things is almost irrelevant.  Possibly  12 the best way I can point that up is when my friend  13 comes to discuss the trap line map.  He seems to think  14 that it is a matter of criticism to say, well, the  15 boundaries shown on the trap line map may not be in  16 accord with what the trapper himself has in mind.  And  17 then he cites at the bottom of page 8 Section 3.13 of  18 the Wildlife Act that "The boundaries of a registered  19 trap line shall be defined by the regional manager".  20 Well, that's the point, is to show by boundary the area  21 in respect of which the Province has alienated or  22 licensed a certain activity.  It's got nothing to do in  23 the sense of whether the trapper thinks that or thinks  24 to the contrary.  When I say "thinks that", thinks that  25 the boundaries of the map represent the -- what he  26 believes the boundaries of his trap line to be.  27 They'll get reconciled.  He won't be trapping anybody  28 else's line for long.  29 Now, there is some criticism made of Mr. McKinnon,  30 and it was suggested that he wasn't authorized to  31 express the opinions that he did.  Mr. McKinnon is a  32 British Columbia land surveyor and, in my submission,  33 is fully qualified to express the opinions he has.  34 The -- the next note I have, the -- at the bottom  35 of page 9, there's a reference to the cross-examination  36 of Mary Johnson.  Well, your lordship may recall that  37 Mary Johnson -- or there was produced to the defendants  38 a trap line map said to be that of her brothers, which  39 turned out to be simply an enlargement of the very  40 documents which are the basis of the trap line map  41 here.  So presumably Mr. Wilson was fully satisfied  42 with the boundaries.  43 Now, there's a submission made with respect to  44 Section 48 of the B.C. — 48(1) of the B.C. Evidence  45 Act and to the case, the Meier Case.  In my submission,  46 the -- the Meier Case is not of controlling  47 significance here.  His Lordship Mr. Justice Toy, as my 1210  1 friend pointed out, placed some importance on the words  2 "for the purpose of determining whether any provision  3 of this section applies".  And the -- the  4 interpretation which Mr. Justice Toy put on it arose  5 out of his examination of the preceding subsections of  6 Section 30.  I'm reading from page 298 under Tab 1, my  7 lord.  He says:  8  9 "My examination of the preceding subsections  10 of Subsection 30 suggest that subsections (1)  11 and (2) must be satisfied by the calling of  12 oral evidence."  13  14  15 Well, when I turn to Section 48 of the Evidence Act, I  16 think it of some significance that subsection (2) reads  17 as follows, and I quote:  18  19 Subject to subsection (3), the circumstances  20 of the making of the statement, that is to  21 say a statement of fact in a document,  22 including lack of personal knowledge by the  23 maker may be shown to affect its weight, but  24 the circumstances do not affect its  25 admissibility."  26  27 Now, I think in my submission, my lord, that is of  28 some significance, and I think it goes to the heart of  29 much of what my friend has said.  He is complaining --  30 or I shouldn't say he's complaining.  He is --  31 THE COURT:  Objecting.  32 MR. GOLDIE:  He is saying you can't put too much weight on this.  33 But the whole purpose of this application is  34 admissibility, not weight.  He is free to contradict.  35 He is free to lead evidence which is -- is to the  36 contrary.  He's never denied that right.  And the --  37 the other aspect of the Meier Case is that Rule 40 was  38 not referred to or invoked in that case, as far as I'm  39 aware.  40 I say with respect to my friend's criticism of the  41 affidavit material that when it is examined, it will be  42 found that each aspect of the underlying material has  43 been confirmed and is sworn to by Mr. Prelypchan.  Now,  44 the -- my friend says well, you must contrast this with  45 the plaintiff's efforts to establish external and  46 internal boundaries.  With respect, there is no basis  47 for such a comparison.  We are simply endeavouring to 1211  1 bring before the Court in a convenient way what is  2 basically a matter of public record.  My friends have  3 set themselves the task of establishing something which  4 is not as of now a matter of record.  5 Let me put the proposition another way.  If we take  6 the course which my friend appears to be recommending  7 and we simply wait until our turn is -- comes to put  8 our case in, my estimate is that we will add something  9 like 20 days to the trial in order to do all of the  10 things which my friend wants us to do, and that  11 includes taking every shortcut which is available to us  12 under the Evidence Act.  And I'm referring, for  13 instance, to Section 36 of the Evidence Act:  14  15 "A copy of an entry in a book kept in the  16 department of the Government of Canada or the  17 Government of British Columbia shall be  18 received as evidence of the entry and of the  19 matters, transactions and accounts recorded  20 in it if it was proved by the oath or  21 affidavit of an officer of the department,  22 that, A, the book was at the time of the  23 making of the entry one of the ordinary books  24 kept in the department; B, entry was made in  25 the usual and ordinary course of business;  26 and, C, copy is a true copy of it."  27  28  29  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 That's going to help us with a considerable amount of  29 the mass of material that we have to deal with, but  30 it's not going to carry us all the way, nor even  31 would -- would the proof of state documents take us all  32 the way.  We examined all of these things and we came  33 to the conclusion that the appropriate thing to do was  34 to combine the availability of government documents,  35 which were admissible under any set of circumstances by  36 the simple application of Section 36, with the  37 depiction of that -- that material on -- on a map  38 which -- in a graphic form.  My friend says, well,  39 they've got 4,000 thousand mineral claims and maybe  40 they better go about it the way somebody would if he  41 was contesting a statement.  Well, I -- I don't  42 understand there's any contest about the mineral claim.  43 If we prove there is a staking in somebody's territory,  44 we've assisted them in proving that there was an  45 alienation, and then the question is is there any  46 damages available for that.  But if my friend wants to  47 contest the staking, then I may be prepared to concede 1212  1 there wasn't one, depending at what point in the trial  2 we're at.  3 Now, the -- I want to conclude, my lord, by saying  4 something about the reason why we brought this on, and  5 I mentioned one, which was that I thought it was in the  6 interest of all parties in this lawsuit.  The other  7 point, of course -- and this is quite apart from the  8 use in cross-examination.  The other point is that we  9 must know before we commence our case whether we are  10 going to have to organize what I estimate to be a  11 20-day presentation.  We know enough about how long it  12 took to get this material organized to know something  13 of the numbers of the people involved and what will  14 be -- what we will have to do with it.  I -- we -- we  15 suggested to our friends that -- my friends that they  16 bring their advisers; that they -- we would have  17 officials that we were responsible for for the  18 organization of this material available for  19 questioning.  They have seen fit not to take that up  20 even though it was repeated on a number of occasions.  21 And I -- I say with all respect that to treat the --  22 the issue that is presented in this application as if  23 it was a quieting titles case or as if it was a  24 contested -- an overstaking under the Mineral Act is  25 simply to lose sight of what we should all have in  26 mind, and that is to get to the real issues with -- as  27 quickly as possible and with as little time taken up in  28 the courts as possible.  29 I'm not going to go through each of the items that  30 my friend has dealt with, the five matters except to  31 say this:  That in the case of the water rights, we  32 found it would be impossible to show everything on one  33 map of a three foot by six foot.  What is in the book  34 is a photograph of the actual records in the Water  35 Rights Branch.  Now, if my friend wants to have  36 somebody from that office step into the witness box and  37 repeat what I've just said under oath, we'll oblige  38 him.  To a limited -- to a substantial extent, the same  39 is true of the mineral rights and the water, and the  40 trap line maps.  The district lots -- the district lots  41 are those shown on his own map.  They're -- each party  42 is using the same base map, and if -- if one examines  43 the base map used by my friends -- and one of the  44 reasons they gave for the late delivery of their map,  45 Exhibit 5, was that they didn't have the base maps.  46 Those base maps have -- have district lots shown on  47 them.  Mrs. Johnson's territory has district lots shown 1213  1 on it.  And now my friend says the fact that there is a  2 surveyed district lot says nothing about the ownership  3 of the lot or the accuracy of the survey.  I quite  4 agree.  And if my friend wants to question the accuracy  5 of the survey, I'll -- I'll be surprised, but I won't  6 be able to raise any objection, at least on the basis  7 of the documents that we're proposing to be introduced  8 at  9 this time.  10 I don't propose to comment on the cases that my  11 friend has cited other than what I've already done.  I  12 have nothing further, my lord.  13 THE COURT:  All right.  Thank you, Mr. Goldie.  I guess you  14 don't have the right to reply, Mr. Rush, but you may  15 have one if you wish.  16 MR. RUSH:  Well, there are one or two more points I'd like to  17 make if I may.  18 THE COURT:  I'm not sure if you do or not, but it doesn't  19 matter.  20 MR. RUSH:  There is a theme that runs through my friend's  21 argument that somehow by not agreeing with him, with  22 his proposal, that that should therefore lead to the --  23 that this should be -- his maps and his documents  24 should be admitted into Court.  And I think that is  25 erroneous.  The fact that he would allow us to look at  2 6 the material in no way is a prejudgment about what we  27 would have thought of it.  What we think about it is  28 what we are now saying about it.  But having said that,  29 my lord, it's no indication at all that when examined  30 in the detail that this material needs to be examined  31 in, that we won't make our own judgments about what we  32 can agree to.  We have found that in respect of the  33 material that has been led here, these five maps, that  34 there is reason, we say, that there should be another  35 and better way of proving the evidence.  I point out to  36 your lordship that the objective understated by my  37 learned friend about the purpose of it was, as he says  38 in his own memo, to prove the location of areas subject  39 to land and resource use.  And in my submission, he is  40 asking your lordship on the basis of the evidence and  41 the method of -- the choice of method of proof here to  42 prove that as a matter of fact.  43 In terms of tendering this information, my lord, to  44 help the plaintiffs, well, I think you may deduce from  45 our argument that we perhaps do not feel much of the  46 help that he's providing us, and I think really what is  47 not stated in that submission is the advantage that my 1214  1 learned friend seeks to obtain by advancing and proving  2 in a compendious fashion one of the paragraphs of his  3 statement of defence.  He says that we are -- all that  4 we are doing is bringing before the Court what is in  5 the public record.  Well, my lord, that's all the  6 plaintiffs are doing, only it's a different public.  7 It's the Gitksan and Wet'suwet'en public,  8 which I presume --  I'm not sure where the Gitksan and  9 Wet'suwet'en public sits in the terms of the public  10 framework that my friend represents.  And in my  11 submission, what we are doing is bringing the evidence  12 forward in a way that demonstrates that the public that  13 we represent has that evidence -- brings that evidence  14 before you in the way that is their way, and that is in  15 an oral way.  And in my submission, that's the proper  16 way in the circumstances of this case.  17 And I think, my lord, my last point is that it is  18 turning the process that the Court procedures and rules  19 bring to us on its head to say that if we disagree with  20 or if we find a discrepancy with the material that is  21 placed before your lordship, that my learned friend  22 will concede this point, or perhaps he can -- he would  23 agree with the point that I make as a refutation.  24 Well, in my submission, that is not an onus that we,  25 the plaintiffs, should bear.  It in effect says accept  26 the evidence by the method proposed by my learned  27 friend and if we disagree, well, then we have to  28 demonstrate how we disagree and he'll answer that.  And  29 in my submission, that is a perversion of the process  30 of the way evidence should be called.  Evidence should  31 be called to allow us to test the reliability of the  32 evidence relied upon by my learned friend through the  33 processes that we have, and that is the  34 cross-examination that the disclosure of this  35 information in advance determine through our own  36 mechanisms whether or not we can accept it or whether  37 we want to test it, and I say that is an underlying  38 right that we enjoy as contestants in litigation, and  39 we ought not to be denied that right by this method of  40 proof.  41 THE COURT:  All right.  Thank you, Mr. Rush.  I think I should  42 dispose of this matter as best I can now so that  43 counsel will have an opportunity to consider what I'm  44 about to say while it's fresh in your mind.  I want to  45 say again that I am hesitant and dubious about the  46 assistance I can get except as to matters -- as to  47 general principles from authorities decided in 1215  1 completely different contexts from the case at bar.  2 Each case is authority for what it decides and no more  3 and what it decides depends in part upon the context in  4 which the authority in question is decided.  5 I am satisfied that for the limited purpose  6 mentioned by Mr. Goldie, that is the fact of an active  7 alienation whether carried out or not, the documents  8 included in the alienation map project and the maps  9 themselves should, indeed must be admitted, if at all,  10 into evidence without each document and map being  11 proved conventionally.  Such an endeavour in a case  12 such as this would not be a sensible or useful  13 endeavour.  These matters, documents and maps should,  14 in my view, be proven by affidavit pursuant to Rule  15 40(41) and Rule 40(42).  But I am impressed by the  16 force of Mr. Rush's objection to the verification  17 process employed up to this point for these documents  18 and maps, and I think the plaintiffs are entitled to  19 have affidavits from the various senior custodians  20 referred to in the material I have.  And the plaintiffs  21 are entitled, if they wish, to cross-examine those  22 deponents.  I see no particular reason why that must be  23 done in Court at trial time.  I think that  24 cross-examination can be conducted outside the strict  25 confines of the trial.  I would be prepared to hear  26 further submissions from counsel on the question after  27 such cross-examinations, if any, during verification.  28 In the meantime, I propose to permit the defendants to  29 use the documents in the manner followed during the  30 cross-examination of Mrs. Johnson because I do not  31 think the trial can be held up for this purpose.  I  32 hope that that will be sufficient for counsel's  33 purposes.  But if they wish to speak to the matter  34 again after we've considered it now or Monday, I'll be  35 glad to hear it.  36 MR. GOLDIE:  I was just going to suggest may I tender the  37 documents on Monday?  3 8 THE COURT:  Yes.  39 MR. GOLDIE:  Thank you.  40 THE COURT:  Well, I'm sorry.  You tender them for what purpose?  41 MR. GOLDIE:  Well, they haven't been marked.  42 THE COURT:  Well, they could be marked for identification if you  4 3 wish.  44 MR. GOLDIE:  Yes.  I — I'd like to get them all in on the same  45 sequence so that they're not --  4 6 THE COURT:  Yes.  47 MR. GOLDIE:  Thank you. 1216  1 THE COURT:  I'll hear Mr. Rush on Monday if he has any objection  2 to that, but I don't see any objection at the moment,  3 but you may -- he may have one that I -- I haven't  4 thought of.  I think that it might -- I take it, Mr.  5 Goldie, you're saying that because there may be some  6 use of them in the meantime, you want them to be  7 identifiable?  8 MR. GOLDIE:  Yes.  Perhaps I'm making a mountain out of a mole  9 hill, but I find it very inconvenient to refer to a  10 document other than by its exhibit number.  11 THE COURT:  Yes.  12 MR. GOLDIE:  And some of these pieces of papers have long titles  13 attached to them and if we can at least do away with  14 that, I think it would be helpful.  15 THE COURT:  All right.  Well, we'll adjourn then until 11:30 on  16 Monday morning.  I wish you all a pleasant weekend.  17 Thank you.  Madam Reporter.  18 THE REGISTRAR:  Order in Court.  This Court stands adjourned  19 until Monday, June 15th, 1987 at 11:30.  20  21 (PROCEEDINGS ADJOURNED UNTIL JUNE 15, 1987 AT 11:30 A.M.)  22  23  24  25  26 I hereby certify the foregoing to be  10 into evidence without each document and map being  11 proved conventionally.  Such an endeavour in a case  12 such as this would not be a sensible or useful  13 endeavour.  These matters, documents and maps should,  14 in my view, be proven by affidavit pursuant to Rule  15 40(41) and Rule 40(42).  But I am impressed by the  16 force of Mr. Rush's objection to the verification  17 process employed up to this point for these documents  18 and maps, and I think the plaintiffs are entitled to  19 have affidavits from the various senior custodians  20 referred to in the material I have.  And the plaintiffs  21 are entitled, if they wish, to cross-examine those  22 deponents.  I see no particular reason why that must be  23 done in Court at trial time.


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