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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1987-06-23] British Columbia. Supreme Court Jun 23, 1987

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 1647  Alfred Joseph (for Plfs.)  In Chief by Mr. Rush  1 Smithers, B.C.  2 June 23, 1987.  3  4 (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT)  5  6 THE REGISTRAR:  In the Supreme Court of British Columbia, this  7 23rd day of June, 1987.  Delgamuukw versus Her Majesty  8 the Queen.  9  10 ALFRED JOSEPH, Previously sworn:  11  12 THE REGISTRAR:  Witness, I remind you you are still under oath.  13 THE COURT:  Mr. Rush.  14 MR. RUSH:  Yes, my lord.  There was a matter -- excuse me.  15 MS. KOENIGSBERG:  I wonder if I might just raise a point that I  16 think we should perhaps deal with before we go further  17 with this witness' evidence and it has to do with the  18 extensive evidence led with regard to fisheries and  19 impact on fisheries yesterday.  I should perhaps begin  20 by saying that when that extensive evidence was led,  21 of course production has been asked for interviews and  22 so on with Mr. Morrell and those were made, of course,  23 last week and those have not been produced yet.  We  24 anticipate that we would be asked to cross-examine or  25 this witness may be in a position to be cross-examined  26 this week and it is becoming increasingly difficult  27 for us to continue to prepare or even try to prepare  28 cross-examination without production.  I also would  29 like to point out that the tenure of the evidence as  30 it was led yesterday was within the context of  31 wrongful acts by the Federal Government, and I might  32 note for the record that nowhere are such acts or  33 allegations pleaded, and it's one thing to perhaps to  34 lead evidence of the impact on of the fisheries of  35 blasting of the Hagwilget rocks.  But as the evidence  36 progressed, it didn't seem to be staying within that  37 context.  But to branch off into allegations of  38 wrongdoing by various departments of the Federal  39 Government, and as I read the pleadings unless my  40 friend can point us to some part of the pleadings  41 which would support such a claim, as yet that case has  42 not been pleaded against the Federal Government.  And  43 if we are going to have to deal with that kind of  44 evidence we'd like to know.  45 THE COURT:  Well, there are two matters you mentioned it seems  46 me, Miss Koenigsberg.  The first is the ubiquitous Mr.  47 Morrell, but at the moment is there some progress you 1648  Alfred Joseph (for Plfs.)  In Chief by Mr. Rush  1 can report on the production of the information your  2 friends have been asking for so incessantly?  3 MR. RUSH:  There is a letter coming to them today and I can  4 advise my friends that there are no field notes  5 regarding Mr. Morrell's investigations and research  6 with respect to Mr. Alfred Joseph.  And that's the  7 letter that points that out.  8 THE COURT:  All right.  9 MR. RUSH:  And it also points out that there are other field  10 notes and we provide copies of other experts, Mr.  11 Daley and Miss Mills.  12 THE COURT:  All right.  I don't know what I should ask of you  13 about the evidence that -- yesterday which has been  14 today characterized as wrongful acts.  It wasn't  15 objected to yesterday, but counsel are usually  16 reluctant to be objecting if the evidence might be  17 relevant.  Do you wish to make any response to your  18 friend's statement?  I think correctly that there is  19 no allegation of wrongful acts in the statement of  20 claim.  21 MR. RUSH:  The evidence was led as to the destruction of a  22 valued resource and there is a contest between the  23 Provincial and the Federal Governments as to who owns  24 the fishery.  2 5 THE COURT:  Yes.  26 MR. RUSH:  And if for some reason the Provincial Government is  27 successful in demonstrating that it's their fishery  28 and not the Federal Government's fishery, then our  29 claim is against the Provincial Government.  Our claim  30 against the Provincial Government is a claim -- it is  31 is a whole claim against the Provincial Government,  32 however, is in the end resolved.  But as I say, there  33 is a contest between the governments as to the  34 riverbed, ownership of the riverbed, and you will no  35 doubt hear about that.  In my submission the evidence  36 that you have heard relates to two -- is relevant for  37 two reasons.  One is that the -- there is a claim to  38 an aboriginal right to fish in respect of the  39 Hagwilget canyon, an aboriginal right to fish which  40 has been substantially destroyed as a result of  41 conduct by the Federal Government.  42 THE COURT:  Well, do you say that's an issue that I have to  43 decide in this case?  44 MR. RUSH:  No, that's not an issue that you have to decide.  45 That per se is not an issue that you have to decide.  46 What you have to decide is the value of that fishery  47 to the people. 1649  Alfred Joseph (for Plfs.)  In Chief by Mr. Rush  1  THE  COURT  2  3  MR.  RUSH:  4  5  6  THE  COURT  7  8  9  10  11  12  13  14  MR.  RUSH:  15  16  17  THE  COURT  18  19  MR.  RUSH:  20  21  THE  COURT  22  23  MR.  RUSH:  24  THE  COURT  25  26  27  28  29  30  31  32  33  34  MR.  RUSH:  35  36  37  38  39  40  41  42  THE  COURT  43  MR.  RUSH:  44  45  46  47  :  The value as -- before the -- before the blasting or  the value after the blasting?  Well, I think in order to determine the value after  you really have to make some determination as to the  value of that fishery beforehand.  :  I guess what your friend is musing about in part is  do I -- do we have to give the other side if there is  one to the blasting in the canyon?  Maybe there is  evidence that there never was any fish there or that  there is just as many there now as there ever was or  that -- or something like that.  I can understand your  friend's concern about whether they have to answer  that evidence.  Well, if they choose to answer it, I think that's up  to them.  And they can answer it as far as -- I'd like  to hear their answer.  :  Well, I am fascinated by the subject, but I am just  wondering why I am being troubled with it.  Well, there is a claim to ownership of fishing sites  and of course these are land based fishing sites.  :  But would that claim not be the same whether there  was blasting in the canyon or not?  Yes.  :  All right.  Well, I think I am going to have to put  your friends on notice that if they are faced with  that kind of evidence, I think they are going to have  to object to it and I'll have to deal with it, because  at the moment in view of your most recent answer, it  may be argued that I shouldn't have heard all that  evidence yesterday.  If the claim would be the same  whether there is blasting or not, perhaps I shouldn't  be troubled with that fascinating story and the answer  to it, if there is one.  Well, as I say, I think that it's relevant because of  the contest over the riverbed.  Now, obviously the  impact of the blasting, if perpetrated by the Federal  Government, would somewhat diminish the obligations of  the Provincial defendant.  It's our view, however,  that as you heard yesterday there is the consequence  of that blasting dramatically affected the way of life  of the Hagwilget people.  :  Yes.  And a valued resource based on fishing sites that  were placed throughout the Hagwilget canyon was  dramatically diminished if not destroyed.  The point  of the evidence, of course, in addition to the  explanation how that resource was diminished was to 1650  Alfred Joseph (for Plfs.)  In Chief by Mr. Rush  1 demonstrate that there were in the canyon owned  2 fishing sites owned by chiefs of the Wet'suwet'en  3 people.  And as a consequence of that, they make the  4 claim to the owned fishing sites in much the same way  5 that they make the claim to the territories of the  6 Wet'suwet'en Houses.  7 THE COURT:  All right.  Well, I am not going to try and sort all  8 this out at this point.  I think that the objection,  9 or rather the observations Miss Koenigsberg has made  10 this morning bring the matter into some greater focus  11 than I had given to it previously, and I'll have to  12 watch for this sort of thing and try and sort it out  13 if I have to as the matter proceeds.  I am just not  14 sure what the result of all this is at the moment.  15 But maybe Mr. Goldie will help me.  16 MR. GOLDIE:  Well, my lord, I listened, if I may say so, with  17 only half an ear on the evidence yesterday, because it  18 seemed to be wholly concerned with the shortcomings or  19 otherwise of the defendant Attorney General of Canada  20 and who he represents.  I am startled to hear the  21 suggestion that the question of the ownership of the  22 riverbed as between the Federal Government and the  23 Provincial Government will be decided in this action.  24 There is no allegation which raises that issue.  If  25 there is any suggestion that in some way that would  26 require the Provincial Government to be held  27 responsible for the actions of the Federal Government,  28 assuming they gave rise to some damages, then I have  29 to say, my lord, that the present claim for damages  30 against the Provincial Government is limited to the  31 wrongful appropriation and use of the territory by the  32 defendant Province or by its servants, agents or  33 contractors.  And I don't propose to respond to any of  34 the evidence that has been led with respect to these  35 matters.  There is no claim for damages against the  36 Federal Government, so I simply repeat what Miss  37 Koenigsberg has said in that regard.  And I may not be  38 of much assistance except possibly to the extent of  39 some minimal shortening of the trial by saying that I  40 don't think that the ownership aspect is of any  41 concern to your lordship and I don't think that the  42 question of the consequences that flow from the  43 evidence that was given yesterday is presently raised  44 in the pleadings.  45 THE COURT:  All right.  Well, I am going to give this some  46 thought and watch for it as it develops and deal with  47 it as it arises.  Mr. Rush, are you ready to proceed? 1651  Alfred Joseph (for Plfs.)  In Chief by Mr. Rush  1 MR. RUSH:  Well, the other point that I was going to raise when  2 Miss Koenigsberg and I were vying for place at the  3 beginning of the trial here --  4 THE COURT:  Yes.  5 MR. RUSH:  -- was the fact that Mr. Grant yesterday raised with  6 you the seating charts --  7 THE COURT:  Yes.  8 MR. RUSH:  -- the seating charts and he sought to have these  9 replace other charts that had been tendered in  10 evidence and apparently there is some concern raised  11 by one of the defendants and that between Mr. Grant  12 and that defendant is apparently being worked out.  So  13 we are not in a position, in short, to proceed with  14 the tendering of that right now.  15 THE COURT:  All right.  Thank you.  All right.  Thank you.  16 MR. RUSH:  Now may I proceed with the evidence?  17 THE COURT:  Yes.  Please.  18  19 EXAMINATION IN CHIEF BY MR. RUSH (Continued):  20 Q   Mr. Joseph, do you want to just move that mike a  21 little bit closer to you.  Thank you.  I want to ask  22 you about a territory that belongs to the House of  23 Madeek, and I would ask you if there is a territory to  24 the north of Gisdaywa's territory that belongs to the  25 House of Madeek?  26 A   Yes.  27 Q   And have you -- have you been given authorization by  28 the present leading chief of the House, Kanoots, to  29 speak in respect of that territory?  30 A   Yes.  31 MR. RUSH:   Okay.  And, my lord, I am going to ask Mr. Joseph to  32 refer to this territory, and I am going to submit a  33 map that's been prepared.  It's a map for  34 identification.  35 MR. GOLDIE:  My lord, before my friend proceeds further, I think  36 with respect that there should be a better foundation  37 laid for this witness to give his evidence.  I  38 appreciate that Madeek is part of the clan of which  39 Mr. Joseph is a member, but I think there is some  40 question of necessity which should be addressed.  It's  41 not just a question of the present leading chief of  42 that House saying Mr. Joseph can speak for him.  That  43 doesn't let in hearsay evidence.  There should be  44 something better done to establish that this evidence  45 is admissible.  I am assuming the evidence is going to  46 be with respect to the territory of Madeek of the same  47 character that Mr. Joseph gave with respect to his own 1652  Alfred Joseph (for Plfs.)  In Chief by Mr. Rush  1  2  THE COURT  3  4  5  6  7  8  9  10  11  MR. RUSH:  12  THE COURT  13  MR. RUSH:  14  Q  15  16  A  17  Q  18  19  A  20  Q  21  A  22  23  Q  24  25  26  A  27  Q  28  29  30  A  31  Q  32  33  A  34  Q  35  36  A  37  Q  38  39  40  A  41  42  43  Q  44  A  45  Q  46  47  A  territory.  :  Well, I can't deal with your objection, I don't  think, Mr. Goldie.  I'll have to see what develops  from the examination of Mr. -- of the witness by Mr.  Rush.  I'm sure that there are many things that the  witness can be asked about that he could answer you  without objection.  I suspect there are many things  that he might -- that counsel might wish him to say  that may not be admissible.  I'll have to deal with  that as they arise.  Yes.  :  Thank you.  Mr. Joseph, you've talked about Chief Kanoots and I  understand that Chief Kanoots is Peter Alfred?  Yes.  And can you say approximately how old he is, his  present age?  He's past 80 is all I know.  All right.  And can you tell us about his health?  He's been pretty weak and in and out of hospitals with  a heart condition.  All right.  And you have told us that the present  name -- that the present name of Chief Madeek has  no -- has no holder at the moment?  Yes.  Okay.  And the territory that I have referred you to,  is this a territory that borders on Gisdaywa's  territory?  Yes.  And did you tell us about this territory I think  yesterday or the day before yesterday?  Yes.  All right.  And have you been to this territory  yourself?  Yes.  And how do you know -- how do you know that this is  Madeek's territory?  What is the basis for your  knowledge about it?  Well, I have passed through there quite often in  bringing my uncle to his territory and he tells me  where the boundaries are.  Is this your Uncle Thomas?  Thomas George.  Right.  And have you heard about the territory, do you  know about the territory from the Feast?  Yes. 1653  Alfred Joseph (for Plfs.)  In Chief by Mr. Rush  1  Q  2  3  A  4  5  Q  6  A  7  Q  8  9  A  10  Q  11  12  A  13  Q  14  A  15  Q  16  17  A  18  Q  19  20  A  21  Q  22  A  23  Q  24  A  25  Q  26  27  A  28  Q  29  A  30  Q  31  32  A  33  Q  34  A  35  36  THE COURT  37  38  A  39  THE COURT  40  MR. RUSH:  41  Q  42  43  A  44  45  46  47  And who has mentioned in the Feast about this  territory?  I have heard my Uncle Thomas George speak of it and  Woos, late Matthew Sam and Madeek himself.  Was that George Naziel?  Naziel.  Yes.  And when these chiefs spoke of the territory, did they  speak of the territory and its geographic points?  Yes.  And do you know -- do you also know the geographic  features within the territory?  Yes.  And have they been spoken of at the Feast?  Yes.  And is there a structure or cabin which is on the  border of this territory?  Yes.  And what is that?  Can you say where that structure is  located?  One on the north boundary.  And would that be on a river?  Yes.  Is that on the Morice River?  Yes.  And when you say in the north boundary, do you mean  the north boundary of the Madeek territory?  Opposite the north boundary.  All right.  On the east shore of the Morice River.  Okay.  And is there -- is there a structure anywhere  else on the territory that you know of?  There is also a house or cabin on the south boundary.  Yes.  And is that -- does that have a name?  It's at the mouth of C'el tay toostaan Kwe.  Houston  Tommy Creek.  :  At the mouth of -- at the mouth of Houston Tommy  Creek?  Yes.  :  Thank you.  Now, I wonder, can you describe the territorial  boundary of this Madeek territory for his lordship?  The north boundary is very prominent as you drive from  the north as you leave Highway 16, and it's a ridge  that you can see as you look south on the Morice  River.  And the first ridge that you see going right  into the river coming from the western part, western 1654  Alfred Joseph (for Plfs.)  In Chief by Mr. Rush  1 mountains west of Morice River, and that ridge that  2 goes into the river is Tse tah dii t'aay.  3 THE INTERPRETER:  210.  4 MR. RUSH:  210, my lord.  5 THE COURT:  I am sorry.  210 is the ridge that goes into the  6 river?  7 A   The ridge that goes into the river is Tse tah dii  8 t'aay.  The ridge that we can see from the highway.  9 THE COURT:  The ridge at 210, Mr. Rush?  10 MR. RUSH:  Yes.  11 THE COURT:  Thank you.  12 MR. RUSH:  13 Q   And is that ridge that marks the boundary?  14 A   Yes.  15 Q   And that ridge moves in a westerly direction from the  16 Morice?  17 A   Yes.  18 Q   All right.  And where does the boundary go from that  19 ridge?  20 A   It follows the ridge for a ways and then to its peak  21 or small mountain there called Tsee ts'eec.  22 Q   All right.  I don't think that's on our list, my lord,  23 but it is on the map.  24 THE COURT:  Yes.  Yes.  Thank you.  25 MR. RUSH:  It's spelling is T-s-e-e, new word, T-s-'-e-e-c.  26 Q   From there, Mr. Joseph, where does the boundary run?  27 A   It still follows the mountain up to -- up and around  28 the mountain, the bigger mountain called Bex c'ediil  29 yes.  30 Q   And is Bex c'ediil yes, is that a major mountain?  31 A   Yes.  32 Q   Is that within the territory?  33 A   Yes.  34 Q   All right.  And what -- what side of -- 213, my lord.  35 THE COURT:  Thank you.  3 6 MR. RUSH:  37 Q   And what side of the mountain does the boundary run  38 on?  39 A   It goes around Bex c'ediil yes and then it runs south  40 and joins the boundary of Gisdaywa.  41 Q   And is that the boundary that you described yesterday?  42 A   Yes.  43 Q   All right.  What's the boundary on the eastern side of  44 the Madeek territory?  45 A   It's the Morice River, Wet'sen Kwe.  46 Q   And is there a river or stream that flows out of Bex  47 c'ediil yes, the mountain? 1655  Alfred Joseph (for Plfs.)  In Chief by Mr. Rush  1 A Yes.  2 Q Which is that?  3 A That's the Bex c'ed diil yes ts'anli.  4 Q That's 211.  And what is it?  I described it as a  5 river or -  6 A A creek.  7 Q It's a creek, is it?  8 A Yes.  9 Q Okay.  And does that run into the Morice?  10 A Yes.  11 Q All right.  Now, you have said that the previous  12 holder of the name of Madeek was the late George  13 Naziel?  14 A Yes.  15 Q Do you know who held the name prior to George Naziel?  16 A Yes.  He was a person known to the people as Bill Nye.  17 Q N-y-e.  And did you know Bill?  18 A Yes.  19 Q And did you know him as Madeek?  20 A Yes.  21 Q And can you tell us about when it was that he passed  22 on?  23 A Bill is sometime the '50s.  24 Q And if I showed you a photograph of him would you be  25 able to identify him for us?  26 A Yes.  27 Q All right.  Let me show you a photograph here.  Let me  2 8 show you a photograph at tab 14.  If you wouldn't mind  29 pulling that out, Mr. Joseph.  This looks like a  30 photograph of a drawing.  Do you recognize the person  31 depicted in the photograph?  32 A Yes.  33 Q And who is that?  34 A That is Bill Nye Madeek.  35 Q And what's on his head?  36 A It's a head -- head dress worn by chiefs.  37 Q And does it -- does it show any of the crests of the  3 8 Gitdumden?  39 A Yes.  40 Q Which?  41 A The grizzly bear, the main one in the middle, and the  42 two wolves.  43 Q All right.  The grizzly bear is the one in the middle?  44 A Yes.  45 Q And which is the wolf?  46 A The wolves are on the left and right.  47 Q On the outer — 1656  Alfred Joseph (for Plfs.)  In Chief by Mr. Rush  1 A On the outside.  2 Q On the outer panels?  3 A The head, yes.  4 THE COURT:  It's a small — it's a small point, Mr. Joseph, but  5 I didn't understand yesterday that the grizzly bear  6 was the crest of the Gitdumden?  7 A Yes.  8 THE COURT:  I just assumed when I saw a grizzly bear climbing up  9 poles that they were black bears or brown bears.  That  10 doesn't follow, I gather?  11 A Well, they have different -- some it's grizzly bear  12 belong to the House and then bear and the wolves are  13 all the crest of the Gitdumden.  14 THE COURT:  Grizzly bears, of course, don't climb?  15 A No.  But —  16 THE COURT:  But that doesn't matter, though, I gather?  17 A No.  18 THE COURT:  All right.  Thank you.  19 MR. RUSH:  20 Q Mr. Joseph, is there a crest of the black bear of the  21 Gitdumden?  22 A Yes.  23 Q Is there also a crest of the grizzly bear?  24 A Yes.  25 Q And both crests can be displayed at the same time, can  26 they?  27 A Yes.  28 Q And is there also a wolf crest of the Gitdumden?  29 A Yes.  30 Q And are these crests in addition to the ones that you  31 mentioned yesterday?  32 A Yes.  33 Q Or the same as the ones you mentioned yesterday?  34 A Yes.  35 Q Mr. Joseph, yesterday you made mention of an example  36 of the type of event which gave rise to certain crests  37 and you gave the example of a raid that was conducted  38 by the Chief Kweese?  39 A Yes.  4 0 Q And you made mention of the fact that there were  41 crests that emerged from that raid?  42 A Yes.  43 Q And were there crests that came from that raid that  44 were obtained by the Gitdumden clan?  45 A Yes.  46 Q And do you know those crests?  47 A Yes.  They are the grizzly bear and the bear and the 1657  Alfred Joseph (for Plfs.)  In Chief by Mr. Rush  1  2  Q  3  4  5  6  A  7  Q  8  A  9  Q  10  11  A  12  Q  13  14  A  15  Q  16  A  17  Q  18  THE COURT  19  A  20  THE COURT  21  A  22  23  THE COURT  24  A  25  MR. RUSH:  26  Q  27  28  29  30  A  31  Q  32  33  A  34  35  Q  36  A  37  Q  38  A  39  Q  40  41  A  42  Q  43  A  44  Q  45  A  46  Q  47  wolf.  All right.  Now, I want to show you another photograph  and this is at tab 15 of the document book.  If you  just look at that photograph.  And do you recognize  the person depicted in that photograph?  Yes.  And who is that?  That is Bill Nye Madeek.  Okay.  And there appears to be something hanging from  his left shoulder?  Yes.  And can you just describe what that is and what the  two figures are that are on the left side of that?  That's -- that is tracks of a grizzly bear.  And would they similarly be the crests of Madeek?  Yes.  Okay.  :  What does he have in his hand?  Pardon?  :  What does he have in his hand?  That may be something contained -- something to pack  all his regalia in.  :  I see.  Yes.  Now, Mr. Joseph, I am going to ask you to look at tab  ten of this book and there is a photograph there.  Now, I would ask you if you can identify the people in  this photograph.  That is Bill Nye again.  Which -- let's take the one on the right-hand side of  the the two gentlemen sitting.  The one on the right is Thomas George Gisdaywa at the  time.  That's your uncle that you have made mention to?  Yes.  Yes.  And on the left?  Is Bill Nye Madeek.  And do you know the event where these two men were  present and dressed in this fashion?  It's a pole raising in Moricetown.  And Mr. Bill Nye's eyes appear to be closed?  Yes, he was.  Was he handicapped at this time?  He was blind.  And in the left-hand side there appears to be a priest  or a minister.  Do you know his name? 165?  Alfred Joseph (for Plfs.)  In Chief by Mr. Rush  1 A   I think his name was Father Paul.  2 Q   Okay.  3 A   He had other name, but it was hard to pronounce, so he  4 choose to use Father Paul.  5 Q   All right.  And I think yesterday there was a Feast  6 that you said that you attended?  7 A   I —  8 Q   Or at least you said you attended the pole raising?  9 A   I was at, but I was very young person at the time and  10 the -- only the chiefs, head chiefs were at the Feast.  11 Q   Okay.  And the two chiefs, Madeek and Gisdaywa, appear  12 to be wearing some kind of apron, and is this part of  13 their regalia?  14 A   Yes.  15 Q   What's on the bottom of that apron?  16 A   The bottom on the Gisdaywa's apron is caribou.  It's  17 caribou hoofs.  And the upper part of his regalia  18 would have thimbles and other material and one Madeek  19 is wearing the apron is the -- is the same, except it  20 has more thimbles at the bottom.  21 Q   All right.  Thank you.  Now, Mr. Joseph, I am going to  22 ask you to turn to another subject now.  I want to ask  23 you about Gisdaywa's territory.  24 THE COURT:  Mr. Rush, are you going to tender this map?  25 MR. RUSH:  Yes, I would like to tender it as an exhibit for  26 identification.  27 THE COURT:  All right.  Number, please.  28 THE REGISTRAR:  65.  2 9    THE COURT:  Thank you.  30  31 (EXHIBIT 65:  Map)  32  33 THE COURT:  Go ahead, Mr. Rush.  34 MR. RUSH:  35 Q   Now, Mr. Joseph, I wanted to ask you about the  36 changes, if any, that you have noted on Gisdaywa's  37 territory from the time that you were there as a young  38 child to the present.  Have there been changes on the  39 territory?  40 A   Yes.  41 Q   Have there been changes in terms of the physical  42 character of the territory?  43 A   Yes.  44 Q   And has there been logging on the territory?  45 A   Yes.  There has been lots, lots of logging.  46 Q   Do you know where the primary focus of the logging has  47 been? 1659  Alfred Joseph (for Plfs.)  In Chief by Mr. Rush  1  A  2  Q  3  A  4  5  Q  6  7  A  8  Q  9  10  A  11  Q  12  13  A  14  15  Q  16  17  A  18  THE COURT  19  A  20  MR. RUSH:  21  Q  22  23  A  24  THE TRANS  25  MR. RUSH:  26  A  27  28  Q  29  A  30  Q  31  A  32  33  Q  34  A  35  36  37  Q  38  A  39  Q  40  41  A  42  Q  43  44  45  A  46  47  Yes.  Where is that?  It's all around Nadina Mountain, south and west,  north.  And when you say south of Nadina Mountain, do you mean  south of the mountain or on the mountain on the south?  South of the mountain.  And Nadina Mountain is in the southern part of the  territory?  Yes.  Has there been logging on other parts of the territory  to your knowledge?  Yes.  There is logging all around the west -- western  boundary and into the territory.  In the western boundary.  What would be a point that  that would be close to?  All around Tse Gheeweliiyh, Pimpernel Mountain.  :  Sorry, what was that name?  Pimpernel Mountain.  And what was the Wet'suwet'en name that you gave for  it?  Tse Gheeweliiyh.  uATOR:  177.  Thank you.  177.  And down to -- again further down into Tsee Kaal  Wediintaan, which is the Popular Mountain.  Is that in the south as well?  Yes.  That's 292.  There is roads right into those areas and logging  going on in there.  Okay.  And then north -- north around Hoones yex there was  bridges going in, so they -- so the logging is going  into the northern part.  By northern part do you mean north --  Of the Morice River, Wet'sen Kwe.  Have these -- are these bridges of recent  construction?  Yes.  And are you able to say what the impact has been of  that logging, if any, in relation to the use by you or  others who have been permitted to use your territory?  When clear cut happens, there is usually a trap is set  at the bottom at the shelter of a tree.  And when  there is clear cutting happens, that -- those areas 1660  Alfred Joseph (for Plfs.)  In Chief by Mr. Rush  1 are eliminated for trapping.  In the past you used  2 each area and then for a certain length of time and  3 then you moved to another area.  But now that with the  4 the clear cut, it can't -- you can't do that.  You  5 have to move further up, up the mountains where there  6 is no logging.  But some areas you can't.  They cut  7 out every area that they can reach.  And the animals  8 are -- trails are all eliminated.  And at times when  9 there is an animal has to cross the territory with all  10 these open areas, a crust forms on the snow and it  11 makes it hard for them to travel, and if there is a  12 cover it's easier for them to move around.  13 Q   What kind of animals are you talking about?  14 A   They are bigger animals that moves.  15 Q   Okay.  And what's the significance of the loss of the  16 animal trail?  17 A   It's -- all these animals have their own boundaries.  18 They protect them same as humans.  And if a cat comes  19 along and wipes out an animal trail, these animals are  20 all disoriented, and as a result there is -- they  21 start chasing each other off and that means there is  22 no more -- the animals move on or move on to higher  23 ground and it's harder there for them to get feed.  24 Q   All right.  Has -- you mentioned that roads have been  25 built into the territory?  26 A   Yes.  27 Q   Have -- what's been the effect of building these  28 roads?  I take it these are logging roads, are they?  29 A   Yes.  30 Q   And what's been the effect of this?  31 A  Well, the effect is again more -- more hunters are  32 coming in.  It's more accessible to hunters.  And what  33 animals there is in there are easy -- easy to get at  34 for the hunters.  And a lot of times you -- when you  35 are out hunting yourself, you meet many hunters and  36 all those hunters that are coming in have never been  37 in the bush before and they are very dangerous to the  3 8 owner.  39 Q   All right.  Now, are there -- are there farms or  40 ranches on the territory?  41 A   Yes.  42 Q   And are they located in any particular place?  43 A   They are all over the territory.  44 Q   Are they on the road system?  45 A   Some of them are on the road system, yes.  4 6 Q   Does this have an impact on the way that you and your  47 House members and those using the territory with your 1661  Alfred Joseph (for Plfs.)  In Chief by Mr. Rush  1  2  A  3  Q  4  A  5  6  7  Q  8  A  9  10  Q  11  A  12  Q  13  A  14  15  16  17  18  19  20  THE COURT  21  A  22  MR. RUSH:  23  Q  24  A  25  Q  26  A  27  Q  28  29  A  30  Q  31  32  A  33  Q  34  35  36  37  38  A  39  Q  40  A  41  Q  42  43  A  44  Q  45  46  A  47  permission --  Yes.  -- can use the territory?  Yes.  There is -- it's very hard to go somewhere and  when you see a sign saying "keep out" or "no hunting"  and "no trespass" signs there.  Is there any mining in your territory?  Yes.  There is mining -- there has been mining in the  territory.  And do you --  Back in the twenties and the present day.  Do you know where that mining is located?  There is mining around Nadina Mountain and there is  mining -- I've seen camps around east of Owen Lake  where you see gates, gates with locks on it, and some  mining companies in there and also sign saying "keep  out."  And back in the thirties when I was in there  with my aunt there was mining -- mining camps all  around, around Owen Lake.  :  That was in the thirties?  Yes.  Are there mining camps there today --  Yes.  -- that you see?  Yes.  And are they in the same location or is this what you  have described as being on Nadina?  It's the same location.  All right.  And by that I think you mentioned which  direction from Owen Lake?  East.  Okay.  Now, in your evidence you have given testimony  about the extent of the structures that were on  Gisdaywa's territory and you have described where they  are on the territory.  Are any of these structures  standing today?  You mean cabins?  Yes.  No.  All right.  And you, I think, indicated that Bii wenii  C'eek there was a cabin there?  Yes.  And there is -- the place where the cabin stood, what  is there now?  It's -- there is a tourist camp right by the river,  but where my grandfather had his cabin a little 1662  Alfred Joseph (for Plfs.)  In Chief by Mr. Rush  1 further back across the road from these tourist  2 campsites they put in the dump, a hole in the ground  3 about ten feet deep dug by bulldozers, and that is  4 where people put their garbage and the remains of the  5 cabin are still there right at the dump site.  6 Q   All right.  7 A  My grandfather Joseph Nahloochs' cabin.  8 Q   All right.  When you over-night in the territory now,  9 do you tent or do you use a trailer or where do you  10 stay?  11 A   In a tent.  12 Q   Okay.  And do you stay at Bii wenii C'eek or --  13 A   Yes.  14 Q   All right.  Mr. Joseph, I am going to ask you some  15 questions on another area now.  Just before I do that,  16 I think you described that there were cabins on other  17 parts of the boundary apart from or in the territory  18 apart from Bii wenii C'eek?  19 A   Yes.  20 Q   And I know that you described a cabin as being at the  21 outflow of Owen Lake?  22 A   Yes.  23 Q   Is that right?  24 A   Yes.  25 Q   And I take it from your evidence that that cabin isn't  26 standing any longer, is that right, or is it?  27 A   No.  No.  It's not standing.  28 Q   And was there a cabin at Hoones yex?  29 A   Yes.  30 Q   And is that cabin standing today?  31 A   No.  32 Q   Do you know what happened to those cabins?  33 A   They have -- some of them have been pushed over when  34 the roads are widened.  And some have been burned.  35 Q   Okay.  I think you mentioned there was a camp and I  36 don't know if you mentioned if there was a cabin at  37 Xeet yex at the north end of Parrot Lake?  38 A   Xeet yex.  39 Q   Yes.  40 A   That was their -- my uncle has a camp there for  41 fishing.  42 Q   I see.  43 A   Yes.  44 Q   And was there a cabin at that point or was it a --  45 A   Yes.  46 Q   Do you know if that cabin is still standing?  47 A   No. 1663  Alfred Joseph (for Plfs.)  In Chief by Mr. Rush  1  THE COURT  2  A  3  4  THE COURT  5  6  7  A  8  THE COURT  9  MR. RUSH:  10  Q  11  A  12  Q  13  14  A  15  Q  16  A  17  Q  18  A  19  Q  20  21  22  23  24  25  A  26  Q  27  A  28  29  Q  30  31  A  32  Q  33  A  34  Q  35  A  36  Q  37  38  A  39  Q  40  41  42  A  43  44  45  46  47  :  Sorry, you don't know?  No.  I think it's -- there was a fire there and it's  all been burnt.  :  All right.  When you say your uncle has camp there  for fishing, you mean now or your uncle used to have a  cabin there?  Used to have a cabin there.  :  Thank you.  This is your uncle --  Thomas George.  Thomas George.  Is that site still used for fishing  purposes?  Yes.  Okay.  And who uses that site today?  Andy and Leonard always go in there.  That's Andy and Leonard George?  Yes.  Now, my lord, I am going to turn to another area of  Mr. Joseph's evidence now, and I am going to deal with  some research work that he did in respect of other  territories.  Mr. Joseph, did you participate in a --  in doing research to obtain the territorial names and  boundaries of other Wet'suwet'en territories?  Yes.  And what was the object of doing this work?  To like obtain the different names of creeks and  rivers and mountains and the lakes.  Okay.  Were these -- were some of these names and  rivers and mountains known to you before --  Yeah.  -- you started the project?  Yes.  Yes.  And by what names were they known to you?  By the Indian names.  And were some of these known to you by their English  names as well?  Yes.  And what were you asking the people that you invest --  you investigated, what did you ask them when they --  when you went to do the research?  I -- when I went to the people that had the  territories, I said that I knew the major rivers,  mountains and rivers.  And I knew where they were  located and who owned them, but the part that I need  to know are areas in between all these places, smaller  creeks, hills and landmarks.  It's sort of like a 1664  Alfred Joseph (for Plfs.)  In Chief by Mr. Rush  1 person knows the city block but he don't know every  2 building in that block.  That is the way that I went  3 about finding out the different -- different features  4 in the territory.  5 Q   All right.  And did you travel out to the territories  6 then learning about the names --  7 A   Yes.  8 Q   -- and so on of the rivers that you have mentioned?  9 A   Yes.  10 Q   And the creeks.  And did you go out to the territory  11 with some of the elders?  12 A   Yes.  13 Q   And did the information that you obtain about the  14 names of geographic points, did it come from those  15 elders?  16 A   Yes.  17 Q   And were some of the things that were pointed out to  18 you, were these geographic points that were known to  19 you beforehand?  20 A   Yes.  21 Q   In some cases did you learn about new names or new  22 places?  23 A   Yes.  24 Q   Was it difficult to obtain some of this information?  25 A   Yes, it was.  One of the -- one thing I have noticed  26 about some of the areas and some of the elders that  27 went out into a territory is that some of them have  28 never been back to the area for 40 or 50 years.  And  29 when they went back they said that the last time they  30 were in the area the place was -- you could see for  31 quite -- quite a ways, they said.  But trees have  32 grown up and they were in some place -- sometimes had  33 to go higher up to -- up the hill or mountain to  34 really look the place over.  And that was one of the  35 harder things to -- especially in a flat area, but up  36 around where there is mountains it was easier for them  37 to pick out the landmarks and other --  38 Q   Did you -- sorry.  And other?  39 A   Lakes and rivers or creeks.  40 Q   Did you try to get to higher points?  41 A   Yes.  42 Q   Okay.  And when you were told a name of a mountain or  43 creek, what did you do with that?  How did you record  44 the information?  45 A   I wrote down these -- the name of the place and there  46 were times when you had to record these places on  47 tape, but it was very difficult to do that too, 1665  Alfred Joseph (for Plfs.)  In Chief by Mr. Rush  1  2  3  4  5  Q  6  A  7  8  9  10  11  12  13  Q  14  A  15  Q  16  17  18  19  A  20  21  22  23  Q  24  25  26  27  28  A  29  Q  30  31  32  A  33  Q  34  A  35  Q  36  37  38  A  39  Q  40  41  42  43  44  THE COURT  45  MR. RUSH:  46  THE COURT  47  MR. RUSH:  because of times you run out of batteries or sometimes  your tape, you run out of tapes.  So it was -- if you  are going out for a day and spent two days, sometimes  I had to rely on just writing down on the book.  Did you keep a field notebook?  I kept a field notebook, but like I said, I was so  busy at times that whenever I got information it was  such a rushed thing that I opened up my book and just  first page I came to I had to write down what the --  what the elder was telling me.  So as a result now I  look at my notebook.  I have dates on different pages  and sometimes I didn't write down the dates.  All right.  Did you go on helicopter flights?  Yes.  And did you video tape some of those helicopter  flights, or not the helicopter flights, but what you  saw when you got to the point where the helicopter  took you?  Yes.  We -- we took video tapes and there again we  were hampered by battery problems and sound problems  and the wind is -- always wind blowing up in the  mountain and it's very hard to record.  In some of the cases of your research or  investigations with the elders, did they tell you who  owned certain territories and certain parts of the  land in geographic points that were being pointed out  to you?  Yes.  Now, I think you indicated that you were authorized by  the Wet'suwet'en chiefs to speak on their behalf in  respect of some of these territories, is that correct?  Yes.  And you said that occurred on May 20?  Yes.  Was there a meeting of the Wet'suwet'en chiefs and  plaintiffs here in which that authorization was given  to you?  Yes.  All right.  Now, I want to ask you if you can recall  some of the trips that you made out to the territory  and particularly if you recall beginning in August of  1982 if you travelled to the area of the Sam Goosley  Lake.  :  August of '82?  Yes.  August of 1982.  :  Do you have a spelling for that?  Sam Goosley.  It's G-o-o-s-l-e-y Lake. 1666  Discussion re hearsay  1 THE COURT:  G-o-o-s-l-e-y?  2 MR. RUSH:  Yes.  3 THE COURT:  Sam?  4 MR. RUSH:  Yes.  5 THE COURT:  Two words?  6 MR. RUSH:  Yes.  7 THE COURT:  Did you, Mr. Joseph?  8 A   Yes.  9 MR. RUSH:  10 THE COURT:  Yes, all right.  11 MR. RUSH:  12 Q   You travelled out into that area.  Maybe you can just  13 tell his lordship what you did in that occasion?  14 A   The first time I wanted to find out about Sam Goosley  15 Lake was I went to some people at Moricetown that used  16 the territory all their lives, but found out when I  17 went there through an elder and I was told by this  18 elder that he said, "Yes, I've spent my life on the  19 territory."  20 MR. GOLDIE:  Excuse me, my lord.  The witness was asked what he  21 did and perhaps if he could do that without recounting  22 conversations.  23 MR. RUSH:  Well —  24 THE COURT:  I suppose we are going to have a problem.  25 MR. RUSH:  Yes.  Yes.  And what I am intending to do here with  26 respect to this particular event is to lead it not for  27 the truth of the event, because I am going lead this  28 event through another witness, but a particular  29 principle that was involved here that had to be  30 respected by Mr. Joseph in his research and it's a  31 principle that he had to acknowledge as part of the  32 laws of the Wet'suwet'en.  And then, of course, the  33 second phase of it will be that information was given  34 to Mr. Joseph which he recorded and then that  35 information became part of the mapping of the  36 territories of the Wet'suwet'en people.  And here what  37 I am asking your lordship to do is to permit this  38 evidence to be given to you know, what the foundation  39 is for the drawing of the map by the cartographer and  40 we will be -- this is one part of the accumulation of  41 the knowledge of the boundaries and the geographic  42 points which appear on other of the maps of the  43 Wet'suwet'en chiefs and plaintiffs.  Other, by that I  44 mean other than that of Mr. Joseph.  45 THE COURT:  Well, the tendering of evidence other than for the  46 proof of the truth of the fact stated is only  47 permissible if it's -- if that evidence is admissible 1667  Discussion re hearsay  1 for some other purpose such as the state of mind of  2 the witness, as I understand it, not for the state of  3 mind of the person making the statement whose evidence  4 or whose statements are being repeated.  What is  10        5 the -- what is the basis for admissibility in this  6 case?  Is it for the -- to -- as a step in the proof  7 of the truth of the facts stated in the maps?  8 MR. RUSH:  Yes.  9 THE COURT:  But doesn't that have a fatal deficiency and that is  10 that the statements that are put on the map have no  11 greater evidentiary value or no greater admissibility  12 than the declarer who made the statement in the first  13 place?  14 MR. RUSH:  That's true.  I don't disagree with that and, my  15 lord, the conundrum that we face is this.  16 THE COURT:  Yes.  17 MR. RUSH:  We have on the one end of the process the  18 cartographer and -- Mr. Sterritt who will provide  19 expert evidence as to how the lines are drawn, and the  20 other end is the evidence of the particular chiefs,  21 and you'll hear much of this from Mr. Joseph, who have  22 the direct knowledge.  In some cases Mr. Joseph has  23 the direct knowledge.  In most cases his knowledge is  24 gleaned from other experts or from other experts, the  25 chiefs.  And in my submission if we are put to calling  26 these chiefs, each and every one of them, the length  27 of the evidence which we will have to call will be  28 substantial.  And what I am proposing here is to call  29 evidence of Mr. Joseph who took the knowledge and  30 recorded it and passed it onto the cartographers and  31 those cartographers drew certain boundaries.  In the  32 case of Mr. Sterritt you are going to hear evidence  33 that he did more than that, and he in fact did  34 separate research in addition to Mr. Joseph and he  35 did -- he in fact gathered together another body of  36 information which added to Mr. Joseph's information,  37 became the basis for the territories that were  38 described in the map.  Now, my concern is that if  39 Mr. -- if the methodology used by Mr. Joseph here is  40 not -- is seen as inadmissible evidence, then I am  41 leading the evidence as to what Mr. Joseph did and  42 would be then required to lead the evidence from the  43 persons from whom he took the evidence.  Now, I should  44 tell you that many of the chiefs are still living and  45 in some cases they are quite fragile and in many cases  46 ailing.  One of the chiefs has been commissioned as a  47 man a hundred years of age.  His evidence -- it is not 166?  Discussion re hearsay  11  1 our intention to call him.  He is too frail to bring  2 to the witness stand.  Some of his evidence is  3 evidence that touches on the territory, but the  4 process that Mr. Joseph will describe is a process  5 where an attempt was made to identify certain points  6 which, of course, this witness when he was asked on  7 cross-examination he wasn't directed to the same  8 questions.  9 THE COURT:  Well, if Chief X tells Mr. Joseph that this  10 promontory has a name and he gives him an Indian name,  11 Mr. Joseph takes that information, writes it down,  12 passes it onto the cartographer and the cartographer  13 puts it on the map, at the end of the day aren't I  14 precluded from paying any attention to that?  That's  15 the problem I see.  I have already alluded to the fact  16 that I'm not authorized to amend or disregard the  17 rules of evidence and will you not end up with a  18 result that as a matter of law I must hold to be  19 inadmissible?  20 MR. RUSH:  In some cases yes.  In some cases no.  What I'm  21 proposing here, my lord, is a means by which this  22 evidence can come before the court in an expeditious  23 way.  And you in a sense were faced with a similar  24 type of issue when my learned friends from the  25 Provincial Crown introduced evidence from their files  26 in an affidavit.  27 THE COURT:  Yes.  That's right.  28 MR. RUSH:  And your lordship admitted that by that methodology,  29 and what I am submitting is in the end of the day the  30 methodology that is used here is a way of  31 authenticating the information that has come from the  32 repositories of that information, namely the chiefs.  33 THE COURT:  Well, except that I -- except that I have given you  34 the opportunity to cross-examine the deponents of  35 those affidavits and if Mr. Joseph gives that evidence  36 in a receivable form or if it gets into an admissible  37 form in some way, there is no similar opportunity for  38 cross-examination.  39 MR. RUSH:  Well, no, I don't have the opportunity of  40 cross-examining the makers of the information in the  41 situation that you have described.  I only have an  42 opportunity to cross-examine a person who says that he  43 is the keeper of the information and that they were  44 kept according to certain procedures within the  45 department.  I don't have any opportunity whatsoever  46 to cross-examine any of the makers or the providers of  47 the information.  I don't think your lordship will be 1669  Discussion re hearsay  1 any closer to understanding how that information came  2 to be when I determine from any one of the  3 administrators in the department what way it was kept  4 in the records.  5 THE COURT:  But the evidence that is going to be used in that  6 sense is for the limited purpose, and I expressly made  7 it admissible for the limited purpose of ruling that  8 these, for want of a better term, these dispositions  9 were in fact made.  Not that they have any intrinsic  10 or separate life.  That is, that they were actually in  11 the case of water permits, water works, and that sort  12 of thing, it doesn't prove that fact.  See, I have a  13 basic problem.  I sympathize entirely with what you  14 are seeking to do.  The question I have to be  15 satisfied, however, is that at the end of the day will  16 you have something that I can treat as evidence or is  17 it something that I'm required as a matter of law to  18 disregard entirely?  I am going to take the morning  19 adjournment now anyway.  It's that time.  I would will  20 be glad to hear you further, Mr. Rush, and your  21 learned friends and hope that we can find some  22 solution to this difficult problem.  23  24 (PROCEEDINGS ADJOURNED PURSUANT TO MORNING BREAK)  25  26  27 I hereby certify the foregoing to be  28 a true and accurate transcript of the  29 proceedings herein to the best of my  30 skill and ability.  31  32  33 Laara Yardley,  34 Official Reporter,  35 United Reporting Service Ltd.  36  37  38  39  40  41  42  43  44  45  46  47 1670  Proceedings  1 Smithers, B.C.  2 June 23, 1987  3  4 (PROCEEDINGS RECONVENED PURSUANT TO THE MORNING  5 ADJOURNMENT)  6  7 THE REGISTRAR:  Order in court.  8 THE COURT:  Anything further, Mr. Rush?  9 MR. RUSH:  Well, I'll tell you, what I'm going to propose is  10 that I lead this evidence as evidence of the  11 methodology that was used here and that the question  12 of the admissibility of the evidence of the informants  13 be the subject matter of the discussions which your  14 lordship has asked to take place concerning the length  15 of the trial.  And we are going to -- I should tell  16 you that part of the proposal that we're intending to  17 make in this regard has to do with evidence of this  18 kind, and in this respect what I think that we ought  19 to do is to leave this issue as to the admissibility  20 of this evidence until you hear that proposal, until  21 my learned friends hear it, which -- they've asked us  22 to deliver our suggestions to them this evening, which  23 we're intending to do, and then deal with it in the  24 context of that proposal, which I think is the proper  25 way to proceed.  However, what I could intend to do,  26 subject to your lordship's ruling, is to lead the  27 evidence of what in fact was done.  28 THE COURT:  Including the conversations with the elders and  29 others mentioned?  30 MR. RUSH:  Certainly.  Yes, I'm going to lead the evidence of  31 the conversations of the elders.  If that is said to  32 be inadmissible, then, of course, I'll lead everything  33 else around it.  34 THE COURT:  Yes.  35 MR. RUSH:  But, yes, I intend to lead that as information  36 received by Mr. Joseph and what he then did with it  37 and so on.  I also intend to -- to show a video or  38 portions of a video, which will be probably the best  39 demonstration of the process that was utilized in this  40 investigation.  41 THE COURT:  All right.  For the assistance of all of us, can I  42 just clarify something, Mr. Rush?  The evidence that  43 you would seek to adduce would be declarations made  44 both as to the Indian names of landmarks and as to  45 boundaries?  46 MR. RUSH:  Yes.  There are the two aspects.  47 THE COURT:  Yes.  All right.  Well, thank you.  I'll hear what 1671  Proceedings  1 your learned friends say.  Mr. Goldie or Mr. Macaulay,  2 whoever wants to go first.  3 MR. GOLDIE:  My lord, in view of what my friend has just stated,  4 that is to say, that he proposes leading evidence of  5 what a witness has said, I think it appropriate to say  6 something at this point.  It may form the basis for  7 some discussion tomorrow.  So be it.  But we are now  8 dealing, as I see it, with a question of admissibility  9 at the trial, and I have listened to what my friend  10 has said with a great deal of interest, and I can only  11 say that it is lamentable that we are hearing a  12 proposal for the admission of evidence of such a  13 fundamental nature at this late stage.  Your lordship  14 ought to know that in November of 1985 we asked for  15 maps which would depict the claims made by the  16 Plaintiffs in the case.  It was not until the day this  17 trial opened on May the 11th of this year that we  18 received a copy of what is marked as Exhibit 5 for  19 identification.  20 THE COURT:  That's the internal boundaries, is it?  21 MR. GOLDIE:  The internal boundaries.  22 THE COURT:  Yes.  23 MR. GOLDIE:  Until that day we were not supposed to have any  24 knowledge of the internal boundaries or how they were  25 to be proved or how the territories, the claims to the  26 territories, which are the very heart of this action,  27 were to be -- were to be proven.  28 Now, we have never been asked to admit facts.  We  29 have never -- I'm sorry.  We have never been asked to  30 admit facts relating to the territories.  We have  31 never been asked to admit documents.  And I say, with  32 all respect, to compare this to the provincial maps is  33 simply not on the same footing at all.  34 Your lordship is aware that we offered access to  35 every person who is involved in any way with the  36 mapping project and invited my friends and their  37 advisers to take advantage of that opportunity.  They,  38 for reasons which I don't question as being valid,  39 felt they could not do that.  On the other hand, we  40 were expressly forbidden to approach any member of the  41 Gitksan, other than the Kitwancool people, or any  42 member of the Wet'suwet'en.  We were in the dark as to  43 the evidence that Mr. Joseph might give.  I had some  44 sense of what he might say arising out of the  45 examination for discovery of Mr. Sterritt in April of  46 this year, but the field notes and the video to which  47 my friend has referred were first disclosed in the 1672  Proceedings  1 supplementary list of documents of the Plaintiffs  2 dated May the 12th, 1987.  And item 3978 is dated  3 November 12, 1986, Joseph, Alfred -- Joseph, Alfred,  4 field note of Alfred Joseph, February 9th, 1982,  5 November 12, 1986.  Item 3979 is another field  6 notebook, again dated November 21st, apparently, 1986.  7 Now, how the Plaintiffs propose to get over a  8 problem which must have been obvious from the  9 beginning when they structured this case in the  10 fashion they did has never been made known to us until  11 today, and to some extent through the examination for  12 discovery of Mr. Sterritt, but that's a separate  13 point.  It seems to me, my lord, that there is no  14 exception to permit the admission of evidence of  15 living persons for the purpose of proving the truth of  16 the contents of that statement through the lips of a  17 third person, and I can only say that if my friend is  18 going to lead this evidence, I have no choice at the  19 present time but to object to anything which purports  20 to be a repetition of a recollection of a conversation  21 or the transmission of information given by living  22 persons with respect to anything which is to be of  23 probative value.  24 I had not expected that it would take this long to  25 have this develop, but, as I have said, we have never  26 been invited to admit anything, and I cannot do so on  27 the basis of the witness in the box in the light of --  28 and the evidence being tendered in the fashion that it  29 is.  30 THE COURT:  Mr. Macaulay.  31 MR. MACAULAY:  My lord, this issue affects the Province, of  32 course, a great deal more than it affects Canada,  33 although there are some comparatively small federal  34 land holdings in the whole claim area.  The issue must  35 have been -- the problem must have been apparent to  36 the Plaintiffs all along, and it would appear that the  37 trial will have to proceed on the basis of the  38 evidence given by the witnesses we have heard and  39 other witnesses about their own Houses.  It is  40 admissible evidence, the evidence that he has given,  41 that this witness has given about his own House's  42 territory.  And most of the issues -- if -- if the  43 evidence is confined, in the way suggested by Mr.  44 Goldie, to admissible evidence, evidence that doesn't  45 offend the hearsay rule, the trial could still  46 proceed, and the issues, most of them, if not all of  47 them, can be addressed in regard to those Houses with 1673  Proceedings  1 respect to which your lordship has satisfactory  2 boundary evidence.  And I recall your lordship  3 suggesting that method of approach a long time ago at  4 the pre-trial conference, and it may be the more  5 desirable alternative to having 40 or 50 more  6 witnesses give the necessary evidence about their --  7 the internal boundaries.  The -- neither of the tests  8 of necessity or reliability can be met with most of  9 these circumstances of the internal boundaries, and I  10 don't see how your lordship can hear that evidence.  11 The -- that is the hearsay evidence of other people's  12 territory.  13 THE COURT:  Thank you.  Mr. Rush.  14 MR. RUSH:  What my learned friends have had an opportunity to  15 do, though perhaps the process has not been completed,  16 is to examine Mr. Sterritt at length on the process by  17 which the boundaries were determined, and, in fact, in  18 respect of two of the territories Mr. Sterritt was  19 asked to assemble all of the supporting material that  20 he relied upon in order to draw the boundaries.  He  21 did that.  It was presented to Mr. Goldie, and that  22 was seen as a sample of the type of evidence that  23 would be relied upon and was relied upon in order to  24 draft the boundary lines of both the external and the  25 internal boundaries.  26 Despite my friend's views of this discovery, it was  27 a discovery that took place over many days, up to six,  28 and extensive information of his field notes and other  29 field notes were provided to him.  Now, it is, I  30 think, regrettable that my friend considers that  31 information -- and I should tell your lordship that  32 the information about the boundaries is evidence that  33 is coming by way of opinion evidence of Mr.  34 Sterritt -- that my friend chooses to characterize  35 this as being in the dark, and, in my submission, the  36 information -- it is well-known to my learned friends  37 that the information of Mr. Sterritt is information  38 that is gathered and was gathered from a number of  39 sources.  I should add further that if it -- if it is  40 the wish of my learned friends, we will call the  41 evidence to the extent that we can.  42 THE COURT:  That sounds like a statement in teorreum.  43 MR. RUSH:  Well, I remind you of a similar in teorreum statement  44 of the further 20 days it would take to call the  45 alienation evidence.  You might recall that.  And in  46 my submission, my lord, there is a very compelling  47 parallel between the kind of evidence that my learned 1674  Proceedings  1 friend Mr. Goldie sought to admit by way of the -- of  2 the application under Rule 40 and the evidence which  3 we here are seeking to bring forward to your lordship.  4 In my submission, some of this evidence is evidence  5 from deceased people and may well comply with the  6 ruling that your lordship has made.  There is  7 certainly evidence here that is from people who are  8 living, and I take my learned friend Mr. Macaulay's  9 point that he would object to that as not coming under  10 the -- under the decision and your lordship's ruling  11 on that, and my response is simply this:  I will lead  12 right up to the evidence, to the hearsay, and what I  13 would ask your lordship to do is to admit that  14 evidence, is to admit that evidence subject to your  15 lordship considering what we have to say about a  16 proposal to deal with it.  If you -- if your lordship  17 does that, it seems to me that you are both getting  18 the evidence which in the end may well be admitted; if  19 not admitted, it may well be the subject of other  20 evidence.  You will at least have the chain of  21 communication which leads the information and the  22 evidence through to the people who actually did the  23 map drawing and who formed the opinion concerning  24 the -- concerning the map.  25 Now, in terms of a problem, my lord.  We don't  26 identify this as a problem.  What we identify this as  27 is requiring us to take a number of witnesses who  28 could be called and would be called to prove their  29 boundaries, to prove their territories, and we will do  30 that, and that, of course, would be evidence that I  31 think would have to be seen in a context of the  32 methodology that was employed by Mr. Joseph.  And in  33 due course we'll call that evidence and ask you to --  34 to treat it as the foundation of the opinions that  35 were drawn by the map makers.  Under your lordship's  36 concerns of last week, these are the -- these are some  37 of the thoughts that we've come to in terms of dealing  38 with evidence that need not be given as to questions  39 of territory.  4 0    THE COURT:  Thank you.  I hoped that I might find some  41 assistance in the Baker Lake case, and there is a  42 passage in the report of that case, [1980] 5 Western  43 Weekly Reports, 193, at page 222, where Mr. Justice  44 Mahoney admitted a lay prepared genealogy and to which  45 objection was taken on the grounds of hearsay, and Mr.  46 Justice Mahoney said at the page I've mentioned,  47 1675  Proceedings  1 "Manifestly it would have been outrageously costly  2 to maintain the court in Baker Lake long enough to  3 hear all the Inuit necessary to confirm the list  4 fully or to bring them south from Baker Lake for  5 the same purpose.  I am satisfied that an adequate  6 sample of its contents was verified by admissible  7 evidence.  While they are not all the resident  8 Inuit, the plaintiffs are sufficiently numerous  9 and their progeny, I am sure, even more so, to  10 give the list some considerable validity as  11 indicating the places of origin of the entire  12 local Inuit population."  13  14 I think what he was saying was that he could take  15 the list because it was almost impossible to prove the  16 facts conventionally because the list had been  17 sampled.  I'm not sure -- at the moment I think that  18 doesn't help me much because the scope of the inquiry  19 then under consideration was so much narrower than  20 what I am faced here.  As I see it, I would be obliged  21 to disregard whatever Mr. Joseph tells me living  22 witnesses have told him about any matter in issue in  23 this case, and that is a problem that I think the  24 Plaintiffs have to recognize.  25 I think there is some advantage, however, in going  26 ahead and hearing the evidence because I think it  27 foreshadows what has to happen in this trial, and that  28 is to find some way of putting the Plaintiffs' case in  29 so that the legal issues may be resolved in some  30 reasonable time framework.  It may be at the end of  31 the day that the process will be of some value, but I  32 think I have to say to Mr. Rush that I would allow Mr.  33 Joseph to say what other persons, what other living  34 persons have told him only if he undertakes to either  35 call the witnesses or furnish affidavits from them  36 and, if requested, produce those witnesses for  37 cross-examination.  38 It seems to me that there is, in the absence of  39 admissions or agreements of fact or some extrajudicial  40 solution, no possibility that I could receive as proof  41 information given by living witnesses to Mr. Joseph.  42 For that reason, with some hesitation, but  43 anticipating the discussion we're going to have and  44 hoping that it will be part of the solution, and  45 keeping in mind the fact that we have the rest of  46 today and three more days that should be used in some  47 way, if possible, even if some of it may be wasted, I 1676  Proceedings  1 propose on that basis to allow Mr. Rush to proceed as  2 he proposes.  I don't know if you want to reply to  3 that, Mr. Rush, now or whether you want to take an  4 early lunch so you can consider what I have said.  I  5 would be amenable to your wishes in that regard.  6 MR. RUSH:  Well, I should tell your lordship that in terms of  7 the conditions upon which you would permit the  8 evidence to be led, it may be I cannot respond at all  9 about --  10 THE COURT:  Yes.  11 MR. RUSH:  -- these in respect of all the information that came  12 to Mr. Joseph.  13 THE COURT:  Yes.  Well, of course, what I'm really saying, I  14 suppose, is that if you can't comply, well then I have  15 to disregard the evidence, that is, that part that  16 amounts to hearsay, because I don't think I have any  17 discretion in that regard in any way whatsoever.  18 MR. RUSH:  Well, I think it — I appreciate your lordship's  19 direction on that.  What I will do is to determine  20 which of the witnesses I can advise you about.  I --  21 perhaps it would be useful for me to break now and  22 just to review the evidence as we intend to call it to  23 make some determinations.  24 THE COURT:  Would it be convenient to come back at 1:30?  25 MR. RUSH:  It would be.  26 THE COURT:  All right.  We'll adjourn until 1:30.  27 THE REGISTRAR:  Order in court.  28  2 9 (PROCEEDINGS ADJOURNED PURSUANT TO THE LUNCHEON BREAK)  30  31 I hereby certify the foregoing to be  32 a true and accurate transcript of the  33 proceedings herein to the best of my  34 skill and ability.  35  36  37    38 Leanna Lynn  39 Official Reporter  40 United Reporting Service Ltd.  41  42  43  44  45  46  4 7 (PROCEEDINGS RECONVENED PURSUANT TO LUNCHEON ADJOURNMENT) 1677  Discussion re hearsay  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 REGISTRAR:  Order in court.  THE COURT:  Mr. Rush.  MR. RUSH:  Over the lunch hour I was able to determine who of  the number of people that will be interviewed by Mr.  Joseph were deceased or living, and a number of the  people are deceased and the majority of the people are  still living.  And we -- we can provide an affidavit  in respect of each one of the living people as to the  conversation which -- conversations that they had with  Mr. Joseph during these field trips, and so to the  extent that Your Lordship is allowing the evidence to  be admitted, subject to the qualification that we  provide affidavits from the declarants, we can do  that.  And I -- we can do that and I can say that we  can do that in respect of the witnesses that -- or at  least the declarants that Mr. Joseph has talked to and  that's as far as we can go at this time because we  sort of -- of course, the people are being  investigated.  THE COURT:  Yes.  And I think I added, however, that if required  they would have to be produced for cross-examination.  MR. RUSH:  It's my understanding that if an affidavit were  produced that that would permit defendants to cross on  the affidavit.  MR. GOLDIE:  Not restricted to the contents of the affidavit, My  Lord.  THE COURT:  I think they would have to be cross-examined, they  would have to be tendered for cross-examination at  trial.  MR. RUSH:  Well then I would understand that our affidavit could  go farther.  THE COURT:  Well I think we're going to come to that anyway,  aren't we?  It seems to me that this trial has to be  streamlined in some similar way.  It doesn't seem to  me that we can go on having one witness a week for the  length of time this -- the number of plaintiffs and  reporting witnesses would seem to indicate, and it  seems to me that it's going to come to that.  But at  the moment, for the purposes of this ruling, I would  think that the witnesses' affidavits need only go to  the question of the conversations, but -- but it seems  to me as there -- if the evidence of the affidavit is  to become part of the evidence at trial, then the  witness must be cross-examined as if the affidavit in  chief had been given -- the evidence in chief in the  affidavit had been given at trial and the cross- 167?  Discussion re hearsay  1 examination could be general.  If you seek, Mr. Rush,  2 to adduce evidence generally beyond the verification  3 of the conversations with Mr. Joseph by affidavit,  4 then subject to what your learned friends say, you  5 might have a very receptive trial judge to hear that  6 application, because it seems to me we are going to  7 come to that anyway at some stage in the continuance  8 of this trial.  9 But I'm -- I don't think that I'm going to go  10 further than say now that I'm going to allow you to  11 have Mr. Joseph say what these people told him on the  12 terms I've described this morning, with the additional  13 qualification that if there -- if the affidavits are  14 not filed the evidence won't be considered.  If the  15 affidavits are filed and if your friends wish, then  16 the witness must be produced for cross-examination  17 which will be general as if the witness had been  18 called at trial.  In that case, I would think that I  19 would probably allow you either by affidavit or viva  20 voce to supplement what they have to say.  I think  21 that's a matter -- that's a bridge that I'll jump off  22 when I come to it.  23 MR. RUSH:  That's right.  And as I've indicated to Your  24 Lordship, our intention at this point is to simply  25 affirm the conversations which have occurred between  26 the various interviewees and Mr. Joseph.  That's our  27 present intention.  28 THE COURT:  All right.  Mr. Goldie, have you —  29 MR. GOLDIE:  My Lord, to preserve my position, and having regard  30 to the fact that we do not yet know what proposals the  31 plaintiff --  32 THE COURT:  Yes.  33 MR. GOLDIE:  -- is going to make, I am going to object to the  34 introduction of any hearsay evidence, and that will  35 simply preserve the position at this time.  36 THE COURT:  Yes.  I'm going to hear the evidence subject to that  37 objection.  38 MR. MACAULAY:  We have to take the same position, My Lord.  39 THE COURT:  Yes, thank you.  All right, Mr. Rush, when you are  4 0 ready.  41 MR. RUSH:  Thank you.  42 THE REGISTRAR:  Witness, I remind you you are still under oath.  4 3 MR. RUSH:  44 Q   Back to your evidence now, Mr. Joseph, I want to ask  45 you about the trips you took with certain Wet'suwet'en  46 elders and chiefs to the Wet'suwet'en territories.  47 And I first began to ask you about a trip that you 1679  Alfred Jospeh (for Plfs.)  In chief by Mr. Rush  1  2  3  4  A  5  Q  6  A  7  THE  COURT  8  A  9  THE  COURT  10  MR.  RUSH:  11  Q  12  13  14  A  15  Q  16  A  17  Q  18  19  A  20  21  22  23  Q  24  25  26  A  27  THE  TRANS  28  THE  COURT  29  THE  TRANS  30  THE  COURT  31  32  33  MR.  RUSH:  34  THE  COURT  35  36  MR.  RUSH:  37  THE  COURT  38  MR.  RUSH:  39  Q  40  41  A  42  Q  43  44  A  45  Q  46  A  47  Q  took in August of 1982, August 8th of 1982, and which  you travelled to the area of Sam Goosley Lake; do you  recall that?  Yes.  And do you recall who you were with at the time?  Dan Michell.  :  Dan who?  Dan Michell.  :  Thank you.  And during the course of that trip, were there any  geographic points or boundaries that were pointed out  to you?  Yes.  Okay.  And do you recall any of those?  Yes.  And can you tell His Lordship what they are, if you  remember, of that trip?  The -- the north -- northern boundary of Sam Goosley  territory was the -- a small narrow lake, the northern  part of his boundary, and we stopped there and he said  that the place was called Taandet taa begh.  That won't be on your list, My Lord, there are some of  these that won't be on your list.  Can you spell that  for us, Mr. Mitchell?  Taandet taa begh.  uATOR:  Taandet taa begh T-A-A-N-D-E-T, T-A-A, B-E-G-H.  :  Was that T-A-A-N-D-E-T, L-A-A?  uATOR:  T-A-A.  :  All right.  Mr. Rush, I'm sorry to interrupt, but do  we have a name or a territory for Dan Michell?  Is he  a chief?  Yes, we do.  :  And what's the name of the territory that this  evidence will relate to?  Namox, N-A-M-O-X.  :  All right, thank you.  Territory of Sam Goosley Lake is located in the  territory of Chief Namox; is that right?  Yes.  And Mr. Dan Michell is a member of that House of  Namox?  Yes.  And he is one of the plaintiffs in this action?  Yes.  And did Dan tell you about any other place names or -- 1680  Alfred Jospeh (for Plfs.)  In chief by Mr. Rush  1 firstly, I should ask you whether or not the name  2 you've given us carries an English name?  3 A   No.  It's a very small lake in the -- there is no  4 English name on the map.  5 Q   All right.  During the course of that trip, did Dan  6 speak to you of other points, of geographic points or  7 boundaries in the territory of Namox?  8 A   He -- our trip into the territory was to take first  9 look for myself after talking to you people, and one  10 of the places that we came to see was a set of  11 footprints in the west end of Sam Goosley Lake.  12 Q   Did you see these footprints?  13 A   Yes.  14 Q   And where were they located in relation to any point  15 that —  16 A   They were located at the outflow of -- of Buck River,  17 Sam Goosley Lake, and there is a cabin site right  18 there.  19 Q   Okay.  Had you heard these footprints talked about in  20 the Feast?  21 A   Yes.  22 Q   And did you find these footprints?  23 A   Yes.  24 Q   All right.  And what was unique about them?  25 A   It's a set of footprints, and when I first heard about  26 the footprints being there for thousands of years, my  27 first thought was that if it was there that long it  28 must be in -- in rock.  So that was my first question  29 to people that told me about that.  30 Q   What did you find when you got there?  31 A  Well, I -- when I first -- when I asked the question  32 if it was in rock they said, "No, it's in earth," and  33 that time I sort of thought that it would -- it  34 wouldn't be there very long if it was in earth.  But  35 when I saw the prints and found out that they were in  36 earth, it was really something that was hard to  37 believe unless you were right there and saw the  38 prints.  39 Q   And there is a history concerning those footprints, is  40 there not?  41 A   Yes, yes.  42 Q   All right.  I'm not going to ask you about that now,  43 Mr. Joseph, but I am going to ask you if you obtained  44 any other place names or geographic points on that  45 trip with Dan?  46 A   Yes.  He indicated east boundary and pointed out a  47 range of mountains. 1681  Alfred Jospeh (for Plfs.)  In chief by Mr. Rush  1 Q   What was the range that he pointed out?  2 A   The range that he pointed out -- there is the two  3 range of mountains that were on the east side of Sam  4 Goosley Lake, and the one -- the range on the farthest  5 on the east side is where the boundary, and he  6 named -- he said that -- he said it's called Ggenoh  7 t'sel ts'ai.  8 Q   Do you want to spell that for -- can you help us with  9 the spelling, Mr. Mitchell?  10 A   Ggenoh t'sel ts'ai.  11 THE TRANSLATOR:  Ggenoh t'sel ts'ai, G-G-E-N-O-H  12 T-'-S-E-underline-L-T-S-'-A-I.  13 A   Yes.  It was getting late evening when we were passed  14 that area, and from then on it got pretty dark.  And  15 we went through the Equity Silver Mines just below  16 that, and by that time it was very dark and we got to  17 the camp site on this west shore of Sam Goosley Lake,  18 and camped there.  19 MR. RUSH:  20 Q   Now, were there any other names or points that you  21 were able to determine on this trip?  22 A   The -- we were in there just to -- he was -- he wanted  23 to show me the footprints is our reason for making  24 that trip, and I got names from other people before  25 going in there, and one of the main ones was another  26 place just on the first summit east of Sam Goosley  27 Lake, and one -- one mountain that was -- that I was  28 very interested in was G'ela' dezdii t'iyh.  G'ela'  29 dezdii t'iyh.  30 MR. RUSH:  Mr. Mitchell, can you help us on that?  31 THE TRANSLATOR:  G-'-E-L-A-', D-E-Z-D-I-I, T-'-I-Y-H.  32 THE COURT:  I-Y-H?  33 THE TRANSLATOR:  Yes.  34 MR. RUSH:  35 Q   Who -- from whom did you get that name before you went  36 into the territory?  37 A   I got that from the Dan Michell's mother.  38 Q   Is that Emma Michell?  39 A   Yes.  4 0 Q   All right.  And —  41 A  And Pat Namox, Dan Michell himself.  42 Q   Was this -- was this pointed out to you on this trip?  43 A   Yes.  44 Q   Okay.  Anything else on this trip, Mr. Joseph?  45 A   There is -- that was after seeing the footprints and  46 those mountains that they showed me, Dan showed me,  47 there was other boundaries that we didn't get to, that 1682  Alfred Jospeh (for Plfs.)  In chief by Mr. Rush  1  2  3  4  Q  5  A  6  Q  7  8  9  10  11  A  12  Q  13  A  14  Q  15  16  A  17  18  19  Q  20  21  A  22  Q  23  24  A  25  Q  26  A  27  Q  28  A  29  Q  30  A  31  Q  32  THE COURT  33  MR. RUSH:  34  35  THE COURT  36  MR. RUSH:  37  Q  38  39  40  A  41  Q  42  A  43  Q  44  45  A  46  Q  47  A  was the south boundary and the west boundary.  But he  said that the north boundary was Neenlii and at that  time we didn't get to that.  The north boundary was Neenlii?  Yes.  You made mention of a Neenlii in your testimony a  couple of days ago, that's 153.  Is the Neenlii that  you referred to in your evidence a few days ago, is  that the same Neenlii that was being referred to by  Mr. Michell?  Yes.  Neenlii means waterfall?  Yes.  All right.  Does that -- does that complete the  information you got on that trip?  Yes.  It was a weekend trip, and by the time -- we had  to go by boat from the Neenlii down to where the  footprints were, and that was all we did on that trip.  All right.  You went on another trip in September of  1982 to Sibola Mountain?  Yes.  S-I-B-O-L-A.  And I understand you went with Moses  David?  Yes.  And Moses has passed on; is that right?  Yes.  And Moses held the name of Samooh?  Samooh.  Samooh?  Yes.  That's spelt S-A-M-O-O-H, My Lord.  And —  .  s_M_0-o —  No.  S-A-M-O-O-H, and it's 57 on the plaintiffs'  list.  :  Thank you.  And when you went on that trip, do you know which  territory you went into?  Is that the -- was it the  territory of Samooh?  No.  We went into Caspit's territory.  Caspit?  Yeah.  All right.  Can you just tell us -- give us a sense of  direction as to where Sibola is located?  It's north of Tahtsa Lake, east end of Tahtsa Lake.  Tahtsa is spelt T-A-H-T-S-A?  Yes. 1683  Alfred Jospeh (for Plfs.)  In chief by Mr. Rush  1 Q   Okay.  And was Moses able to tell you any of the place  2 names or geographic points of that territory?  3 A   Yes.  4 Q   Can you recall those for us?  5 A   One -- when we got to the top of Sibola Mountain, he  6 pointed west from there and said this range of  7 mountains that goes right -- right to the Coastal  8 Range east of Kitimat, he said is the boundary of the  9 Caspit -- the Caspit from the Gilseyhu Clan.  10 Q   I'm sorry, was that the boundary between Caspit and  11 the Gilseyhu?  12 A   No.  Caspit of the Gilseyhu.  13 Q   Caspit was in Gilseyhu?  14 A   Yeah. ~  15 THE COURT:  K-A-S-P-I-T?  16 MR. RUSH:  Caspit, it's C-A-S, and I believe, My Lord, it's —  17 THE TRANSLATOR:  132.  18 MR. RUSH:  Yes.  147.  19 THE COURT:  How is that spelt, please?  20 MR. RUSH:  C-A-S-P-I-T.  21 THE COURT:  All right.  And the name of the clan?  22 MR. RUSH:  Gilseyhu.  23 THE TRANSLATOR:  132.  24 THE COURT:  133, thank you.  25 MR. RUSH:  132.  2 6 THE COURT:  Thank you.  2 7 MR. RUSH:  Yes.  And —  28 MR. GOLDIE:  Excuse me.  Before my friend continues, My Lord,  29 the ruling that Your Lordship has made, of course,  30 refers to living witnesses, or living informants I  31 should say.  In this case, the informant is dead.  147  32 on the list suggests that Stanley Morris is the holder  33 of the name of Caspit.  If that is the case, perhaps  34 my friend could indicate whether Stanley Morris would  35 be available for cross-examination.  36 MR. RUSH:  Stanley Morris is available as a witness --  37 THE COURT:  Yes.  38 MR. RUSH:  -- but the information doesn't come from Stanley  39 Morris as the evidence is the information comes from  40 Moses David.  41 MR. GOLDIE:  I appreciate that.  42 THE COURT:  Well, as I see —  43 MR. GOLDIE:  It's obvious.  44 THE COURT:  As I see the situation, Mr. Goldie, while the  45 evidence is being given in a somewhat narrative way,  46 the admissibility of the evidence even -- which is in  47 a different footing because the informant is deceased, 1684  Alfred Jospeh (for Plfs.)  In chief by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR.  THE  MR.  THE  MR.  THE  MR.  THE  MR.  THE  MR.  THE  COURT  RUSH:  would only be admissible as evidence of reputation.  GOLDIE:  Yes.  COURT:  And it seems to me that in a case such as this, the  reputation for territory or boundary could be given by  any number of people having personal knowledge of the  reputation.  GOLDIE:  I agree with that, My Lord, and that was the reason  I asked about Stanley Morris.  COURT:  Right.  GOLDIE:  Because nothing has been given that would make  admissible Moses David's statements as reputation.  Not -- well, I'm taking it as reputation, it may be  that I'm being overly generous.  You'll hear evidence that it is reputation and we're  going to be asking that it be accepted as such.  COURT:  Yes.  GOLDIE:  Well if there is evidence which is going to support  the character --  COURT:  Yes.  GOLDIE:  -- of that, then that's the object of my request.  COURT:  Yes.  Well I'm taking this evidence in, Mr. Rush,  with a question mark in my mind as to whether it's  admissible or not even though it comes from a deceased  person.  Because as I have pointed out, what a  deceased person said isn't for that reason admissible,  it's only admissible if it's evidence of reputation,  and I'm assuming that that's what this is and no more  than that.  If it turns out at the end of the day that  I don't have any evidence that would permit me to say  it is reputation, then it's probably that I wouldn't  be able to consider it at all.  We will be making a submission to you that it is  evidence of reputation and it should come within your  Lordship's earlier ruling, and I'll lead evidence on  that.  Yes.  I also have in mind Mr. Justice Blackburn's  judgment in the Australian case where he -- he said  that, in giving an illustration, that if an aboriginal  in that case said, "My father said this is our land,"  that's a shorthand way of describing what really must  be reputation.  And so I'm not all that concerned  about the form of the question, but I think that  everyone has to be alive to the fact that it has to be  brought within the protection of reputation before it  becomes useable evidence in the case.  I probably said  more than I have to say.  MR. RUSH  THE COURT  MR. RUSH: 1685  Alfred Jospeh (for Plfs.)  In chief by Mr. Rush  1 Q   All right, thank you.  2 And you were about to tell us the boundary  3 between the Gilseyhu and --  4 A   Yes. ~  5 Q   And —  6 A   The southern boundary of Caspit.  7 Q   All right.  8 THE COURT:  I'm not sure I have this word Gilseyhu anywhere.  9 MR. RUSH:  Yes, you do. ~  10 THE TRANSLATOR:  132.  11 MR. RUSH:  It's 132.  12 THE COURT:  Oh I see, yes.  Thank you.  13 MR. RUSH:  14 Q   Now, did he name the range --  15 A   Yes.  16 Q   — Mr. Joseph?  17 A   It's a range that runs from Sibola to, like I said,  18 the -- below the Nanika Lake, and runs into the  19 Coastal Range.  And that range he -- is called the  20 Nde' dedes t'ai, is the boundary from Sibola Mountain.  21 Q   I'm going to ask you to spell it for us, if you would.  22 A   Nde' dedes t'ai.  23 THE TRANSLATOR:  Nde' dedes t'ai, N-D-E-', D-E-D-E-S, T-'A-I.  24 THE COURT:  Sorry, D-E-S-' —  25 THE TRANSLATOR:  No.  D-E-S, T —  2 6 THE COURT: T.  27 THE TRANSLATOR:  '-A-I.  2 8 THE COURT:  A-I.  That's the name of the range?  29 A   That's the range, yes.  3 0 MR. RUSH:  31 Q   Does that have an English name, Mr. Joseph?  32 A   No.  33 Q   Did Moses point anything else out to you?  34 A   He pointed out the territory to the north from Sibola.  35 Q   Were you standing on Sibola itself?  36 A   Yes.  37 Q   And did that -- did Sibola give you a vantage point of  38 territory around the mountain?  39 A   Yes.  40 Q   So he pointed out the territory you say to the north?  41 A   Yes.  42 Q   What did he point out there?  43 A   He pointed out the -- the area that he said belonged  44 to Knedebeas, but it was quite a distance away.  You  45 could see parts of it, other mountains were in the  46 way, but you could see parts of the territory.  47 Q   He pointed in the direction of Knedebeas' territory to 1686  Alfred Jospeh (for Plfs.)  In chief by Mr. Rush  1 the north?  2 A   Yes.  3 Q   Did he name anything when he did that?  4 A  We could see parts of the lake, the Taa c'ets'ol en  5 Lake was that way.  6 Q   What was that lake that he pointed to?  7 A   Taa c'ets'ol en Lake.  8 THE COURT:  We'll need the spelling.  9 THE TRANSLATOR:  T-A-A, C-'-E-T-S-'-O-underline-L, E-N.  10 MR. RUSH:  Thank you.  11 THE COURT:  That was K double A to start?  K?  12 THE TRANSLATOR:  T-A-A.  13 THE COURT: T-A-A, thank you.  14 MR. RUSH:  15 Q   Anything else that Moses pointed out?  16 A  We could see parts of Ootsa Lake in the east and he  17 said that years previous to -- he said in the '30's he  18 was up there and it was way different at that time  19 from what he saw --  20 Q   Okay?  21 A   -- that time.  22 Q   Did he give you any other geographic landmarks on that  23 trip?  24 A   That was most what we see because of other mountains  25 blocking our view.  26 Q   All right.  Did Moses attend the Feasts, Wet'suwet'en  27 Feasts?  28 A   Yes, I think he did.  29 Q   Were you present at any of the Feasts where Moses  30 talked about the places that he -- you've just  31 mentioned here?  32 A   Yes.  33 Q   And did he mention them in relation to a territory?  34 A   Yes.  35 Q   And did he in so -- in mentioning them, did he mention  36 whose territory they belonged to?  37 A   Yes.  38 Q   Do you recall whose territory that was?  39 A   He -- Gilseyhu, like I said, and he mentioned the  40 Nanika area quite often, and areas like Goohlaht's  41 territory  42 Q   The names that you've given us, were these names that  43 he mentioned were in Caspit's territory or Goohlaht's  44 territory or did he say?  45 A   No.  They were in Caspit's territory.  46 Q   All right.  Now, did you make another field trip in  47 September of 1982 to Tatalrose? 1687  Alfred Jospeh (for Plfs.)  In chief by Mr. Rush  1  A  2  Q  3  4  A  5  Q  6  A  7  Q  8  A  9  Q  10  A  11  Q  12  13  A  14  Q  15  16  A  17  Q  18  19  A  20  Q  21  22  A  23  Q  24  A  25  26  Q  27  28  29  A  30  Q  31  A  32  Q  33  34  A  35  Q  36  A  37  Q  38  THE COURT  39  MR. RUSH:  40  41  THE COURT  42  MR. RUSH:  43  Q  44  45  A  46  Q  47  A  Yes.  T-A-T-A-L-R-O-S-E.  And is Tatalrose on the south bank  of Francois Lake?  Yes.  Who did you go to that location with?  We went to see Thomas K. Morris.  Thomas K. Morris.  Is Thomas still living?  Yes.  And did you interview Thomas?  Yes.  Okay.  And am I right in saying that Thomas was the  son of Keom Morris?  Yes.  K-E-O-M Morris.  And is he also the uncle of Roy  Morris?  Yes.  And Roy -- Roy is the present day holder of the name  of Woos?  Yes.  All right.  Now, did he tell you anything about the  Francois Lake area?  Yes.  Did he take you somewhere?  No.  He told us that a mile west of his home was the  remains of Goohlaht's house.  And who held -- who held the name of Goohlaht?  Who  was the Goohlaht he was referring to at that  particular time?  It was my grandfather.  Felix George?  Yes.  Were you -- were you alive at the time or had you been  born at the time that Felix was alive?  Yes.  Did you know your grandfather?  Yes.  And did he describe any --  :  Sorry, who is "he"?  I'm sorry, yes.  We are now talking about Thomas K.  Morris.  The person interviewed.  Did Thomas give you a name  for Tatalrose?  Yes.  What was that?  It's Tatalrose came from a word in Wet'suwet'en and 16?  Alfred Jospeh (for Plfs.)  In chief by Mr. Rush  the place he was living was called at that time Tai  2  3  Q  4  5  A  6  Q  7  8  A  9  Q  10  A  11  Q  12  13  A  14  Q  15  A  16  17  Q  18  19  A  20  Q  21  22  A  23  Q  24  A  25  Q  26  A  27  Q  28  A  29  THE COURT  30  MR. RUSH:  31  32  THE COURT  33  MR. RUSH:  34  Q  35  36  A  37  38  Q  39  A  40  Q  41  A  42  Q  43  A  44  Q  45  A  46  Q  47  THE TRANS  gheez C'eek.  That's 249.  And by "living", who do you mean was  living there, was that Thomas or --  Yes.  Thomas K. Morris.  Okay.  Did you know the Wet'suwet'en name for  Tatalrose before you went out there?  Yes.  And —  Yes.  And did Thomas point it out to you when you were there  or did you know it already?  I knew the name and the meaning of the word Tatalrose.  Okay.  And how did you know that?  Because it was a home place of my grandfather and  people always referred to Tai gheez C'eek.  And was that a place that your grandfather --  you said he lived there?  He lived about a mile west of Tai gheez C'eek.  I think  Did your grandfather ever indicate to you who owned  Tai gheez C'eek?  Yes.  And can you say who?  Goohlaht --  Right.  -- is the name that he held.  At that time?  Yes.  :  I'm sorry, I may have that name, but --  Yes, you do.  It's 12 on the plaintiffs' list,  Goohlaht.  :  Thank you.  Now, did Thomas K. Morris tell you any other names in  the area of Francois Lake when you were on that trip?  Yeah. He was also given the name -- give me the name  of Francois Lake, it's --  And what was that?  This is in Wet'suwet'en?  Yes.  Yes?  It's Nee tah Ben.  Nee tah?  Nee tah Ben.  Nee tah Ben?  Yes.  Mr. Mitchell, can you help us with that?  uATOR:  Nee tah Ben, N-E-E, T-A-H — 1689  Alfred Jospeh (for Plfs.)  In chief by Mr. Rush  1 THE COURT:  Sorry.  N-E-T?  2 THE TRANSLATOR:  N-E-E, T-A-H, B-E-N.  3 THE COURT:  Thank you.  4 MR. RUSH:  5 Q Now, did you know of that name before?  6 A Yes.  7 Q All right.  And how -- did you know it from whom?  8 A It -- Nee tah Ben has always been -- elders have  9 always talked about that area.  10 Q They talk about it in the Feasts?  11 A Yes, in the Feast or -- whenever they mentioned that,  12 it's -- people like my grandfather and grandmother  13 always talk about Nee tah Ben.  14 Q Now, there is -- there is a spillway there in that  15 area, is there not?  16 A No.  17 Q No?  18 A No.  19 Q Okay.  Is there a spillway known as Skin Spillway?  20 A Yes.  21 Q Is that in the area that you are describing?  22 A No.  23 Q Whereabouts is Skin Spillway in relation to Francois  24 Lake?  25 A It's south of Francois Lake.  2 6 Q Okay.  Did you go down there with Thomas K. Morris?  27 A No.  28 Q On that occasion?  2 9 A No.  30 Q Okay.  Did Thomas K. Morris tell you about the name of  31 a mountain which was north of Francois Lake?  32 A Yes.  33 Q And do you remember the name of that?  34 A Yes.  35 Q What was that?  36 A It's Dee tsaan t'aaccoo.  37 Q That's 250, My Lord.  38 And did he say anything about the boundary -- or  39 excuse me, about the mountain?  40 A He said that east of Dee tsaan t'aaccoo was the -- was  41 the Wet'suwet'en boundary, and across -- it crossed  42 there to another mountain south of Francois Lake.  43 Q All right.  Was Thomas K. Morris living there at the  44 time that you interviewed him?  45 A Yes.  46 Q Was he living there permanently?  47 A Yes. 1690  Alfred Jospeh (for Plfs.)  In chief by Mr. Rush  1  Q  2  3  4  A  5  6  Q  7  A  8  Q  9  A  10  Q  11  12  A  13  14  15  Q  16  17  18  A  19  Q  20  21  22  23  A  24  Q  25  A  26  27  Q  28  A  29  Q  30  A  31  Q  32  A  33  Q  34  A  35  THE COURT  36  A  37  38  THE COURT  39  A  40  THE COURT  41  MR. RUSH:  42  Q  43  44  A  45  Q  46  47  A  Okay.  And on that trip, did you have an opportunity  to talk to Francis or -- and Mary Skin, or was that on  another occasion?  That was -- yeah, we talked to both of them at that  time.  Okay.  And where did you travel to talk with them?  A place called Grassy Plains.  And is that close to a lake that we would identify?  The -- it's south of Francois Lake.  Okay.  And did you interview Francis and Mary Skin on  that occasion?  We -- we went in to visit them because we've always  wanted to -- we didn't want to -- we wanted to drop in  every chance we got to Mary Skin.  Now I may be out of sequence here, Mr. Joseph, but do  you recall, was this in the fall of '82 or in the fall  of '83, do you recall?  '82.  All right, I'm not out of sequence then.  So can  you -- can you tell us, did -- in your interviews with  Mary Skin, did she mention a ridge to you that was on  territory in that area?  Yes.  And do you remember what she said to you?  She said that the ridge running east of Mount Wells  was the Wet'suwet'en boundary.  Of which territory, do you recall?  Of the Wet'suwet'en territory.  Which chief's boundary of the Wet'suwet'en?  Pardon?  Which Wet'suwet'en chief's territory?  That would be Skin Daa yii.  Skin Daa yii?  Yes.  :  Was that Mount Wells?  No.  The ridge that ran east of Mount Wells was the  boundary?  :  That's W-E-L-L-S?  Yes.  :  Yes.  Maybe I can just sort one or two of the names out.  What was the name of the ridge?  Neeyes dii t'aay.  I think that's 246.  And you say that's the southern  boundary?  Southern, yes. 1691  Alfred Jospeh (for Plfs.)  In chief by Mr. Rush  1 Q   And that's the southern boundary of the Wet'su -- is  2 that the external boundary of the Wet'suwet'en?  3 A   Yes, yes.  4 Q   And did she mention any -- any other geographic points  5 in that area?  6 A   She mention Mount Wells as the peak across from the  7 spillway south, directly south of the spillway, and  8 Mount Wells she called Waxen Kyes.  9 Q   Waxen Kyes?  10 A   Yes.  11 Q   That's 248, My Lord.  And did she mention — I take it  12 this is the area, the Skin Lake spillway?  13 A   Yes.  14 Q   And did she mention the name of a small hill that was  15 to the east of that?  16 A   Yes.  17 Q   And I think you said something of this yesterday about  18 a med -- related to a medicine song?  19 A   Yes.  20 Q   And did you give us the name for that small hill?  21 A   Ts'u t'ay.  22 Q   Ts'u t'ay.  That's 247, My Lord.  And did she tell you  23 this on that occasion, Mr. Joseph, or did you know  24 about this before you went out there?  25 A   Yes, I knew about that.  26 Q   How had you heard about it?  27 A   I've heard them mentioned by Johnny.  2 8 Q   Johnny David?  29 A   Yes.  And Moses David.  30 Q   Yes.  Were these -- was this hill known to you from  31 comments made at a Feast in a public way, or was this  32 made to you in some other comments?  33 A   It was when -- the time that I heard it was when  34 Moses -- and he said that he never forget that place  35 because when he was young the singers, the medicine  36 men singers always had that in their songs.  37 Q   All right.  Did you drive down to Ootsa Lake?  38 A   Yes.  39 Q   And at Ootsa Lake, in addition to Mount Wells, was  40 there anything else pointed out to you?  41 A   Yes.  We drove east to a place to a small lake, and  42 Francis Skin said that was the eastern boundary.  43 Q   Of what?  44 A   Of the Wet'suwet'en -- boundary between the  45 Wet'suwet'en and Nuu' tsenii.  46 Q   The Nuu' tsenii being the people living to the east of  47 the Wet'suwet'en? 1692  Alfred Jospeh (for Plfs.)  In chief by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  MR.  THE  THE  THE  MR.  THE  MR.  A   Yes, yes.  Q   Yes.  And was there a name --  COURT:  Sorry, I need a spelling for that.  TRANSLATOR:  311.  RUSH:  Yes.  My Lord, I've been holding onto something I've  been intending to give you which might assist you.  It's an alphabetical listing of what you have.  All right.  I don't think my list goes to 311, does  it?  Yes.  We've added a few on the alphabetical listing.  I'm sorry.  Do you think it's on this list?  THE  THE  MR.  THE COURT  RUSH:  COURT  TRANSLATOR:  311,  COURT  RUSH:  Q  Well I'm sorry, I don't have a 311,  it is .  Oh, yes, there  A  Q  A  Q  TRANSLATOR  RUSH:  On the alphabetical listing it's more of an update,  and what we'll do, we'll update the original one which  we gave you to include the additional names  sequentially.  The alphabetical listing will -- is the  same thing except for about ten additional names, I  think, but it will help you to get to the names more  quickly.  Was there a name for that lake that you --  Yes.  It was a small lake, and it's called Nuu Tsee  ben  Nuu Tsee ben?  Yes.  Now that one is not on the list.  Nuu Tsee ben, N-U-U, T-S  -E-E, B-E-N.  Q   Mr. Joseph, was this an area that was trapped in by  either Mary or Francis Skin?  A   Francis said she was trapping in there.  Q   Do you know the clan of Mary and Francis?  A   Gilseyhu.  36 THE COURT:  They couldn't have the same clan, could they?  37 A   Pardon?  38 MR. RUSH:  Yes.  Mother and son.  39 THE COURT:  Same clan?  40 A   Yes.  41 MR. RUSH:  They were mother and son  42 THE COURT:  Oh, I see.  Sorry.  The danger of jumping to the  43 wrong conclusion without the proper foundation of  44 fact.  4 5 MR. RUSH:  46 Q   That's 132.  47 Now Mr. Joseph, were there any other geographic 1693  Alfred Jospeh (for Plfs.)  In chief by Mr. Rush  1 points that were mentioned to you at that time by Mary  2 or Francis Skin?  3 A   The one that -- the only other one is a mountain  4 further south of Mount Wells which you could see, I  5 think it is Tsee K'ez Dzel.  6 Q   That's 249 I believe.  7 What's the name of that mountain in English, do  8 you know?  9 A   I think it's Tweedsmuir Peak.  10 Q   All right.  In that case it's not 249.  Can you just  11 spell that?  12 THE INTERPRETER:  216  13 MR. RUSH:  14 Q   Sorry, 216 I'm advised.  15 She pointed that out to you, did she?  16 A   No.  Francis did.  17 Q   Okay.  18 A   Yes.  And —  19 Q   And you made a note of that, did you?  20 A   Yes.  21 Q   All right.  Now does that conclude the trip and the  22 points that you --  23 A   Yes.  24 Q   -- were told at that time?  Are Mary and Francis Skin  25 living today?  26 A   Yes.  27 Q   Okay.  Now following that trip in the fall of 1982,  28 I'm going to ask you if you were -- if you were  29 back -- were you ever back in that area the following  30 year, or was that the sole trip that you made to that  31 area?  32 A   Yes, we went back the next day.  33 Q   Okay.  And did you interview the Skins again or did  34 you go to a different area?  35 A  We went to the -- visited with Mary again and Francis.  36 Q   Did you learn any other new names or additional names  37 to those that you have already told us about?  38 A   No.  39 Q   Okay.  Mr. Joseph, of the names that you've mentioned,  40 were any of those names known to you before you went  41 to visit with the Skins?  42 A   I knew about the Waxen Kyes, Mount Wells and Neeyes  43 dii t'aay before I went to see them.  44 Q   And did you know their names, their Wet'suwet'en names  45 before?  46 A   Yes.  47 Q   And how did you know those? 1694  Alfred Jospeh (for Plfs.)  In chief by Mr. Rush  1 A They were -- when we talk about -- I went to see  2 Johnny David and ask him about boundaries, he gave  3 them to me before going in there.  4 Q That was the boundaries of that area?  5 A Yes, yes.  6 Q Yeah.  All right?  7 A But other names like Nuu Tsee ben I didn't get that  8 until we went in there with Francis.  9 Q I'm going to ask you if in August of 1983 you went out  10 to McDonell Lake with Bazil Michell?  11 A Yes.  12 Q And Bazil is still living today?  13 A Yes.  14 Q Okay.  And did Bazil show you some boundaries when you  15 were out with him on that occasion?  16 A Yes.  17 Q And did he point out the Gitksan territories to you  18 from where you were -- wherever you went?  19 A Yes.  20 Q And did he point out the territory of a Wet'suwet'en  21 chief?  22 A Yes.  23 Q What was -- do you know the territory that he pointed  24 out.  25 A He pointed out the boundary between Wah tah Kwets and  26 Skokumwasaas.  27 MR. RUSH:  That's 147, My Lord.  2 8 THE COURT:  There were two names given.  29 MR. RUSH:  Oh, yes.  30 THE INTERPRETER:  One is 69 on the plaintiffs' list.  31 MR. RUSH:  Yes, I'm sorry, Wah tah Kwets.  32 THE INTERPRETER:  Sixty-nine on the plaintiffs' list.  33 MR. RUSH:  34 Q Yes.  And Skokumwasaas?  35 A No, Wah tah Kwets.  36 Q Tah Kwets?  37 A Yes.  38 Q All right.  That's 69 on the list, am I right about  39 that?  40 THE INTERPRETER:  Yes.  Skokumwasaas is 233  41 MR. RUSH:  42 Q And 233, My Lord.  43 Did he indicate that -- who the owner of the  44 Gitksan territory was that was adjacent to the Wah tah  45 Kwets territory?  46 A No, he didn't.  He just said it was Gitksan territory  47 west of Wah tah Kwets. 1695  Alfred Jospeh (for Plfs.)  In chief by Mr. Rush  1 Q   And did Bazil indicate whether or not he had trapped  2 in that area?  3 A   No.  4 Q   Okay.  Did he point out any geographic points to you?  5 A   Yes.  6 Q   Do you remember what he pointed to you?  7 A   He pointed to a range of mountains between the Telkwa  8 Valley and the area of McDonell Lake, and the range of  9 mountains between those two areas he called the Keel  10 Dzel.  11 MR. RUSH:  Keel Dzel?  I don't think we have that name.  12 THE TRANSLATOR:  235.  13 THE COURT:  235?  14 THE TRANSLATOR:  Yes.  15 THE COURT:  Is this the McDonell Lake that's behind Hudson Bay  16 Mountain?  17 A   Yes.  18 THE COURT:  Yes.  When I say behind I mean from here.  19 MR. RUSH:  20 Q   Was Keel Dzel, was that the boundary between  21 Skokumwasaas and Wah tah Kwets?  22 A   Yes.  23 Q   All right.  24 A  And he also pointed out the lake, McDonell Lake.  25 Q   And McDonell Lake has a name, doesn't it?  26 A   Yes.  27 Q   What's that name?  28 A   Sde Keen T'aat.  2 9 THE COURT:  Sde Keen T'aat?  3 0 MR. RUSH:  31 Q   That's 229, My Lord.  32 Okay.  Now on that occasion did Bazil point any  33 other features out to you?  34 A  We had to climb this -- parts of the ski hill to look  35 at some of the places, and while we were on the ski  36 hill he said that the area we were on was owned by  37 Gyolugyet.  38 Q   Gyolugyet?  39 A   Yes.  4 0 Q   And by that did he mean the place that you were  41 standing on the Hudson Bay Mountain?  42 A   Yes.  43 Q   All right.  116.  And did he point other geographic  44 points or landmarks out to you while you were up on  45 Hudson Bay?  46 A   Yes.  We came around on that by the ski hill, we came  47 up further overlooking the Bulkley Valley. 1696  Alfred Jospeh (for Plfs.)  In chief by Mr. Rush  1 Q That would be looking north, would it?  2 A North, yes.  3 Q And did he point out anything to you on that side of  4 the mountain?  5 A Yes.  6 Q What did he point out?  7 A He point out -- he pointed out the mountains north of  8 Smithers.  9 Q Yes?  10 A And one of them -- one of the ones he pointed out was  11 the Cronin Mountain.  12 Q Yes.  And did he tell you the name for that?  13 A Yes.  14 Q What was that?  15 A Hooleets t'sel dzes.  16 Q And I think that's 232, isn't it?  17 Did he point out any other creeks or valleys or  18 mountains to you?  19 A Yes.  He said that the creek that came out of that  20 Cronin Mountain was the Driftwood Creek, and he said  21 it was C'edei Kwe.  22 THE INTERPRETER:  231.  2 3    MR. RUSH:  24 Q Okay.  And could you see Driftwood Creek from your  25 vantage point?  26 A You could see the valley of Gyologet.  27 Q Okay.  Did he point out anything else to you from that  28 point?  29 A We could see -- also see a basin up in that area that  30 I hunted in in the past, but I didn't know the name of  31 it so I ask him about that, the basin.  32 Q Yes.  What was -- did you know the English name for  33 the basin?  34 A I think it's the Silver King, I'm not too sure.  35 Q Known as the Silver King basin?  36 A Yes.  37 Q Did Bazil give you a Wet'suwet'en name for that basin?  38 A He said that was called Wha deel 'tliis biit peak.  39 THE INTERPRETER:  230.  4 0    MR. RUSH:  41 Q I think that's 230.  All right.  You had been hunting  42 in there yourself?  43 A Yes.  I went out with that group.  44 Q Okay.  Were you able to obtain any other names on that  45 occasion with Bazil?  46 A He said that it was -- he just wanted to give us the  47 main names like the Cronin and the one I asked him 1697  Alfred Jospeh (for Plfs.)  In chief by Mr. Rush  about.  He said it was -- it was too far across to  give us more accurate names and that he wanted to  get -- get up closer before he gave us any more names.  Bazil is still living?  Yes.  And how old a man would Bazil be today?  I would say he is -- he remembers events that took  place in 1903 and four, so he would be quite old, over  90.  Over 90 or 80?  Yes, 90.  Ninety?  Yes.  Okay.  And have you heard Bazil talk about any of  these points at the Feast?  Yes.  Did Bazil on this occasion point out or tell you the  name of the territory where McDonell Lake was located?  Did he -- did he give a name to that territory?  He called -- yes.  He said that the area was known as  Keel Weniits.  That's 228.  Now, the area is known as Keel Weniits;  is that right?  Yes, yes.  Did you -- does Keel Weniits refer to a specific place  as well?  Yes.  And what does it refer to?  Dennis Lake.  :  What was the number of that again?  That's 228.  Now, did that complete your trip on that day, Mr.  Joseph?  Yes.  10       36 Q   Was there any more that you learned on that day?  Yes, that was pretty well all.  And that occurred -- did that trip occur in August the  9th of 1983?  Yes.  Mr. Rush, I don't know if it matters, but you asked  the witness if he learned whose territory included  McDonell Lake, and you didn't get an answer, nor did  I.  Well, yes.  I think I asked what the name of the  territory where McDonell was located, but there is  that additional question.  1  2  3  4  Q  5  A  6  Q  7  A  8  9  10  Q  11  A  12  Q  13  A  14  Q  15  16  A  17  Q  18  19  20  A  21  22  Q  23  24  A  25  Q  26  27  A  28  Q  29  A  30  MR. GOLDIE  31  MR. RUSH:  32  Q  33  34  35  A  36  Q  37  A  38  Q  39  40  A  41  THE COURT:  42  43  ]  44  45  MR. RUSH:  46  47 169?  Alfred Jospeh (for Plfs.)  In chief by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  MR.  COURT:  Yes.  RUSH:  Q   Of the -- do you know the owner of the territory, the  Keel Weniits' territory where McDonell Lake is  located?  A  Wah tah Kwets.  Q   Wah tah Kwets?  A   Yeah.  Q   Okay.  And that, I think, is 69.  Now, I understand you were on another field trip on  August the 12th, 1983, and you went with Tommy Michell  and Emma Michell to the Telkwa Valley?  A   Yes, yes.  Q   And Tommy and Emma are still living today?  A   Emma is still living but Tommy is passed on.  Q   Tommy has passed on.  And did you go with any -- did  you go with their children or grandchildren as well?  A   Yes.  Q   And was this a trip by truck or car?  A   Yes.  Four-wheel drive.  Q   Okay.  Where did you go on this occasion?  A  We went up the Telkwa River and down to the Gitksan  boundary?  A  And would this be on the west side of the Wet'suwet'en  territories?  A   Yes.  Q   And whose territory was this that you went to?  A   The Telkwa River?  Q   Yes?  A   Is Skokumwasaas.  THE  MR.  INTERPRETER:  RUSH:  233,  A  Q  A  Q  A  Q  A  Q  A  233, Skokumwasaas.  And who was the holder of the name of  Skokumwasaas?  Tommy Michell himself.  Okay.  So you went down to his territory at that time?  Yes.  All right,  landmarks  Yes.  Did they point out creeks and mountains  Yes.  And do you -- do you recall whether it was Emma or was  it Tommy who was for the most part identifying points  for you?  They were both.  And did Tommy and Emma point out various  to you at that time?  to youl 1699  Alfred Jospeh (for Plfs.)  In chief by Mr. Rush  And did they point out a camp site to you?  Yes.  And do you -- can you recall today what the name of  that camp site was?  They said that the place we were at was a place they  said where Tommy's uncle lived.  What was Tommy's uncle's name?  He said it was old Sam and Jonas.  Jonas?  Yes.  And was there an area there that had a name where they  lived?  I think it was referred to as Jonas Flats.  Okay.  And did they, Tommy and Emma, point out any  physical features for you during that trip?  Yes.  They said that the boundary between Skokumwasaas  and Gyolugyet was the creek that ran into the Telkwa  River, and that was known as C'endu yes kwe, C'endu  yes kwe.  PRETER:  234.  And the English name for C'endu yes kwe?  Yes.  Do you know that?  I think it's Pine Creek.  And this creek came out of what mountains?  Keel Dzel.  28 Q   Keel Dzel?  2 9 A   Yeah.  30 Q   That's 235, My Lord.  Did it come out of any other  31 mountain that you know of, or --  32 A   The waters of the southern slope of the Hudson Bay  33 Mountain, also water comes from the southern slope of  34 the Hudson Bay Mountain.  35 Q   Okay.  Now, were there any other sites there that you  36 were -- they were pointing out to you on that  37 occasion?  38 A   There is a few creeks that they mentioned.  39 Q   And can you remember the names of those creeks now?  40 A   One of them is -- I think it was T'ai ts'e nai aa,  41 T'ai ts'e nai aa.  42 Q   You'll have to say it slower because we don't have  43 that.  44 A   Oh.  T'ai ts'e nai aa.  45 Q   T'ai ts'e nai aa?  46 A   Yes.        ~  47 THE TRANSLATOR:  T-'-A-I, T-S-'-E, N-A-underline-L, A-A.  1  Q  2  A  3  Q  4  5  A  6  7  Q  8  A  9  Q  10  A  11  Q  12  13  A  14  Q  15  16  A  17  18  19  20    THE INT]  21    MR. RUS1  22  Q  23  A  24  Q  25  A  26  Q  27  A 1700  Alfred Jospeh (for Plfs.)  In chief by Mr. Rush  1 A   The mountain at the head waters, the name was De' el  2 Kwe Tl'aat.  3 MR. RUSH:  4 Q   De'el Kwe Tl'aat?  11        5          A   Yeah.  6 Q   Does that have an English name?  7 A   No.  8 Q   Okay.  And they pointed that out to you?  9 A   Yes.  10 Q   I don't think we have that, Mr. Mitchell.  11 A  And the river --  12 Q   We'll get the mountain first, then the river.  13 A   De'el Kwe Tl'aat.  14 THE TRANSLATOR:  De'el Kwe Tl'aat, D-E-'-E-L, K-W-E,  15 T-L-'-A-A-T.  16 THE COURT:  A-A-T?  17 THE TRANSLATOR:  Yes.  18 MR. RUSH:  19 Q   And there was a river that flowed from there?  20 A   Yes.  The river is De'el Kwe.  21 Q   De'el Kwe?  22 A   De'el Kwe, yes.  23 Q   Okay.  I wonder if you can give us that spelling as  24 well, Mr. Mitchell?  25 A   D-E-'-E-L, K-W-E.  2 6 THE COURT:  It's almost Telkwa.  2 7 MR. RUSH:  28 Q   Pretty close to Telkwa His Lordship observes.  29 Now Mr. Joseph, were there any other boundary  30 sites or landmarks that were pointed out to you by  31 Emma or Tommy?  32 A   Emma said that a creek that flowed from the south just  33 outside of Telkwa, it flows into the Telkwa was Ts'iyh  34 nii Kwe.  That was the boundary to the -- the eastern  35 boundary of Skokumwasaas.  36 Q   Ts'iyh nii Kwe is the eastern boundary?  37 A   Yes.  That's in English is Goat Horn Creek.  38 Q   All right.  You'll have to help us with that, Mr.  39 Mitchell.  4 0 A   Ts'iyh nii Kwe.  41 THE TRANSLATOR:  T-S-'-I-Y-H, N-I-I, K-W-E.  42 THE COURT:  K-W-E?  43 THE TRANSLATOR:  Yes.  44 THE COURT:  Now I'm sorry, that's the east boundary of what?  45 A   Of the Skokumwasaas territory.  4 6 THE COURT:  Oh yes.  Thank you.  4 7 MR. RUSH: 1701  Alfred Jospeh (for Plfs.)  In chief by Mr. Rush  1  Q  2  A  3  Q  4  5  A  6  7  8  Q  9  A  10  Q  11  12  A  13  Q  14  A  15  16  17  Q  18  A  19  Q  20  21  A  22  Q  23  A  24  Q  25  the inte:  26  THE COUR1  27  MR. RUSH  28  Q  29  A  30  Q  31  32  33  A  34  Q  35  A  36  Q  37  38  39  40  A  41  42  43  Q  44  A  45  Q  46  47  That's called Goat Horn Creek?  Yes.  Were there any other creeks or mountains that they  pointed out to you on this trip that you recall?  Well, I've said that the range that -- the Telkwa  Range is -- I think that is known to other people is  Nelgii.  Nelgii?  Yes.  Is that a range that was known to you before this  trip?  Yes, yes.  And did you -- how did you know about Nelgii?  Nelgii is the whole of Telkwa Range and is always --  people always talked about Nelgii.  And as you can  see -- you can see the range from here and Highway 16.  All right.  That whole range.  Is that a well-known landmark among Wet'suwet'en  people?  Yes.  And is it talked about in the Feasts?  Yes.  Was there anything else on this occasion?  PRETER:  304, Nelgii.  :  Thank you.  Thank you.  That's all I could remember.  Yes, all right.  Mr. Joseph, the -- you've indicated  that the -- that some of the names were given by Emma  Michell?  Yes.  And some by the late Tommy Michell?  Yes.  And can you tell His Lordship whether you were at  Feasts during which the late Tommy Michell made  mention of some of the names that you have indicated  here?  Yes.  They mention at every Feast like if they got the  beaver or any other meat from that territory, it's  mentioned at the Feast.  And did Tommy mention this at the Feast?  Yes.  And did he -- of those names that you gave us, is  there -- is there a way for you to tell us what you  remember Tommy saying at the Feasts, which names he 1702  Alfred Jospeh (for Plfs.)  In chief by Mr. Rush  1 mentioned at the Feasts, if you can?  2 A Well, the -- they always mention that if they got  3 something in the Telkwa area, they say this -- "This  4 wheat came from De'el Kwe nuc'," meaning it's from the  5 upriver, Telkwa upriver area.  6 Q And that's one of the names you've given us?  7 A Yes.  I gave you De'el Kwe Tl'aat as the headwaters  8 where the mountain was, but De'el Kwe nuc' refers to  9 the whole upper part of the Telkwa River.  10 Q Okay.  And that's De'el Kwe nuc'?  11 A Nuc'.  12 Q Nuc', oh yes.  That was the directional word you gave  13 us the other day?  14 A Yes.  15 Q Now Mr. Joseph, was there an occasion later in the  16 month of August of 1983 that you went on a helicopter  17 overflight over part of the Wet'suwet'en territory?  18 A Yes.  19 Q Were there in fact two occasions that you did this?  20 A Yes.  21 Q One of them was on August the 23rd, 1983; is that  22 correct?  23 A Yes.  24 Q And the other one was on August the 24th, 1983?  25 A Yes.  12       26 Q And on the 23rd of August, you did a helicopter over-  27 flight with Jimmy Morris and Mathias Michell?  28 A Yes.  29 Q And Mathias is known or was known as Mat Michell?  30 A Yes.  31 Q And his chief's name was chief Sowiis?  32 A Yes.  33 Q And Mathias has passed on now; is that right?  34 A Yes.  35 Q And is Jimmy Morris still living?  36 A Yes.  37 Q Okay.  And during this trip, did Mathias point out  38 certain landmarks to you?  39 A They both did.  40 Q Okay.  Now as I understand it, what happened is that  41 you landed on three high points --  42 A Yes.  43 Q -- in the area; is that correct?  44 A Yes.  45 Q And from that vantage point, Mathias Michell and Jimmy  46 Morris pointed certain things out to you?  47 A Yes. 1703  Alfred Jospeh (for Plfs.)  In chief by Mr. Rush  1 Q   Okay.  Do you want to tell us where you landed first?  2 THE COURT:  This is on the 24th now?  3 MR. RUSH: This is on the 23rd.  4 THE COURT:  23rd, yes.  5 MR. RUSH:  6 Q   What was the point at which you landed on the first  7 occasion?  8 A   The first point we landed was on the -- on the  9 mountain south-east of Nanika Lake.  10 Q   And from that point did they point out certain  11 geographic features to you?  12 THE COURT:  I didn't get the name of the lake, sorry.  13 MR. RUSH: Nanika, N-A-N-I-K-A.  14 THE COURT:  Thank you.  15 MR. RUSH:  16 Q   Is that a Wet'suwet'en word?  17 A   It's a Wet'suwet'en word but it's spelt differently  18 and pronounced differently.  19 Q   It's -- all right.  Do you know the Wet'suwet'en name  20 for the —  21 A Yes.  It's Nee na c'ek'.  22 Q Okay.  23 A Nee na c'ek'.  24 Q Nee na c'ek'?  25 THE TRANSLATOR:  Nee na c'ek', N-E-E, N-A, C-'-E-K-'.  26 THE COURT:  Mr. Rush, I think if you don't mind we will take the  27 afternoon adjournment to change reporters.  28 THE REGISTRAR:  Order in court.  29  3 0 (PROCEEDINGS ADJOURNED FOR THE AFTERNOON ADJOURNMENT)  31  32  33 I hereby certify the foregoing to be  34 a true and accurate transcript of the  35 proceedings herein transcribed to the  36 best of my skill and ability.  37  38  39  40  41  42 Toni Kerekes,  43 O.R., R.P.R.  44 United Reporting Service Ltd.  45  46  47 Smithers, B.C. 1704  Alfred Joseph (for Plfs.)  In chief by Mr. Rush  1 June 23, 1987  2  3 (PROCEEDINGS RECONVENED PURSUANT TO THE AFTERNOON  4 ADJOURNMENT)  5  6 THE REGISTRAR:  Order in court.  7 THE COURT:  Mr. Rush.  8 MR. RUSH:  9 Q   The first place that you landed on this helicopter  10 trip, Mr. Joseph, what territory was it in?  11 A   In Caspit.  12 Q   And can you tell us on that first landing -- there  13 were three landings on that day?  14 A   Yes.  15 Q   And the first landing were geographic points indicated  16 to you?  17 A   Yes.  18 Q   And by whom were they indicated?  19 A   Jimmy Morris.  2 0 Q   All right.  And what was pointed out to you on that  21 first landing, if you -- if you recall?  22 A   He showed -- he pointed out mountains that were north  23 of Nanika, a range that separate Morice Lake and  24 Nanika.  25 Q   Were they named for you?  Was that named?  26 A   Yes.  27 Q   Do you remember the name?  2 8 A   Tanulghul.  29  30  Q   Help us with that, Mr. Mitchell,  A   Tanulghul.  31  THE TRANSLATOR:  Tanulghul, T-a-n-u-l-g-h-u-underline-1,  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR. RUSH:  Q  A  Q  A  Q  A  Q  Any other points there, Mr. Joseph?  Yes, he -- he said the same thing that Moses said,  that Satsaan boundary was Nde' dedes t'ai.  Nde' dedes t'ai?  Nde' dedes t'ai.  Does that have an English name?  No.  I don't think we have that in Wet'suwet'en, Mr.  Mitchell.  A   That was the same range west of Sibola.  MR. RUSH:  Do you have a spelling for that?  THE TRANSLATOR:  Yes, N-d-e- —  THE COURT:  I'm sorry, A-d-e —  THE WITNESS:  N.  N-d-e-' d-e-d-e-s t-'-a-i.  MR. RUSH: 1705  Alfred Joseph (for Plfs.)  In chief by Mr. Rush  1 Q   You've mentioned that already, have you, Mr. Joseph?  2 A   Yes.  3 Q   Were there any other points shown to you then?  4 A   No, there wasn't too many places in that area.  The  5 two range of mountains is the only one that he  6 mentioned.  7 THE COURT:  Are we talking now about the boundary of Caspit  8 territory?  9 THE WITNESS:  Yes.  10 THE COURT:  Yes.  Thank you.  11 MR. RUSH:  12 Q   And the second landing on that day?  13 A   That was on the north shore of Morice Lake.  14 Q   Does that have a -- a place name that you could  15 identify it to?  16 A   It's -- the -- the base of -- the foot of the mountain  17 where we landed was Mount Loring.  18 Q   You landed at the base of Mount Loring, did you?  19 A   Yes.  20 Q   And do you know if that has a Wet'suwet'en name?  21 A   Leez bee'.  22 THE INTERPRETER:  236.  2 3 THE COURT:  236.  2 4 MR. RUSH:  25 Q   Yes.  And did Mr. Michell or Mr. Morris point anything  26 out to you from that point?  27 A   They pointed out a small lake at that point which was  28 north of Morice Lake, and it is Atna Lake on the map,  29 but he said it was in our language g'elee nee ben.  30 Q   It's -- it was called Atna Lake?  31 A   On the map.  32 Q   Yes.  And in Wet'suwet'en?  33 A   G'elee nee ben.  34 Q   G'elee nee ben?  35 A   Yes.  36 MR. RUSH:  I don't think we have that, Mr. Mitchell.  37 THE TRANSLATOR:  G'elee nee ben, G-'-e-l-e-e n-e-e b-e-n.  38 THE COURT:  I'm sorry, Mr. Rush, but to make some sense in my  39 notes, is it possible to find out in whose territory  40 are we said to be in at the moment?  41 MR. RUSH:  42 Q   At the point where you landed on this second landing,  43 what territory, what Wet'suwet'en territory were you  44 in?  45 A  We were on the -- on Caspit territory, and we landed  46 there at that point.  4 7 THE COURT:  Thank you. 1706  Alfred Joseph (for Plfs.)  In chief by Mr. Rush  Okay.  And were you looking at a point outside of  Caspit or --  Yes.  Okay.  And into whose territory were you looking?  To the east -- eastern shore of Morice Lake.  The --  both Jimmy and Mathias said that that was Gyologyet.  Gyologyet?  Yes.  Okay.  And were there any other points of reference or  geographic landmarks that you were referred to?  They also said that Nanika Mountain, that was on the  north.  North from where you were?  From -- yeah -- no.  It would be east from where we  were.  I see.  That was -- that's Teezdlii Dzel?  Teezdlii Dzel.  What was Teezdlii Dzel?  Nanika Mountain on the map.  PRETER:  221.  THE COURT:  What did you say that it was, Teezdlii Dzel?  24 THE WITNESS:  Teezdlii Dzel. ~  25 THE COURT:  Well, that's — that's in your territory.  26 THE WITNESS:  No, that's in — that's — Dzel teel is in my  27 territory.  This is -- Teezdlii is outflow of Morice  28 Lake.  29 THE COURT:  I've got — in your map I've got a Tsee let t'aat,  30 and that's something different, is it?  31 THE WITNESS:  Yes.  I think that should be Tsee let.  32 THE COURT:  Oh, all right.  33 MR. RUSH:  34 Q   Let's just -- Teezdlii Dzel is Nanika Mountain, is it?  35 A Yes, Nanika on the map.  36 Q Nanika on the map?  37 A Yes.  38 Q All right.  And is there a mountain with a similar  39 name on your territory?  4 0          A   No.  41 MR. RUSH:  Okay.  Now, that Teezdlii Dzel, my lord, is 221.  42 THE COURT:  Thank you. ~  4 3    MR. RUSH:  44 Q   All right.  Now, were there any other points of  45 reference that were --  46 A   That's the only points we could see from that landing.  1  MR.  RUSH  2  Q  3  4  A  5  Q  6  A  7  8  Q  9  A  10  Q  11  12  A  13  14  Q  15  A  16  17  Q  18  A  19  A  20  Q  21  A  22  THE  inte:  23  THE  COUR1 47  Now, did you make a third landing on that date' 1707  Alfred Joseph (for Plfs.)  In chief by Mr. Rush  1 A Yes.  2 Q And where did you -- where did you land?  3 A We landed on the west slope of mountain called  4 Herdome.  5 Q Herdome?  6 A Yes.  7 Q That's the English name for it, is it?  8 A Yes.  9 Q I think that's spelled H-e-r-d-o-m-e.  10 And is there a Wet'suwet'en name for that?  11 A Yes.  12 Q And it is?  13 A Wo'betl'eet.  14 Q 237.  And was that a high point that you could see in  15 different directions?  16 A Yes.  17 Q And was it overlooking any other Wet'suwet'en  18 territory?  19 A It was overlooking the -- the area of Tsibasaa  20 territory.  21 MR. RUSH:  Tsibasaa.  22 THE INTERPRETER:  Six on the Plaintiffs' list.  2 3    MR. RUSH:  24 Q And Tsibasaa is in which House?  25 A Smogelgem.  26 Q All right.  And was there -- was there a boundary that  27 was pointed out to you from that vantage point?  28 A Yes, the coastal range was the -- to the west was the  29 boundary, natural boundary.  Yes.  Okay.  That's to  30 the west?  31 A Yes.  32 Q Were there any points pointed out to the north or to  33 the east?  34 A We were on -- on the boundary to the east, which was  35 Herdome, and the Tsibasaa boundary was to the north of  36 where we were, and from there on it was another  37 territory.  38 Q Okay.  Now, were there any other names pointed out to  39 you on that landing?  40 A It's -- there's a peak just west of the place where we  41 landed and was another boundary mark -- marker.  42 Q Did that have a name?  43 A Pillar Peak.  44 Q Pillar Peak?  45 A Yes.  4 6 Q All right.  And did that have a Wet'suwet'en name?  47 A Yes, T'se ggwa'. 170?  Alfred Joseph (for Plfs.)  In chief by Mr. Rush  1  Q  2  A  3  MR.  RUSH:  4  5  THE  TRANS  6  MR.  RUSH:  7  Q  8  9  A  10  11  12  THE  COURT  13  14  15  MR.  RUSH:  16  THE  COURT  17  MR.  RUSH:  18  Q  19  A  20  21  22  THE  COURT  23  MR.  RUSH:  24  Q  25  A  26  Q  27  28  A  29  Q  30  31  A  32  Q  33  34  35  A  36  37  Q  38  A  39  Q  40  41  A  42  Q  43  A  44  THE  TRANS  45  MR.  RUSH:  46  Q  47  T'se ggwa'?  T'se ggwa'.  You'll have to help us with that one, Mr. Mitchell,  please.  jATOR:  T-'-s-e g-g-w-a-'.  Okay.  Did that complete your sightings or  observations on that day?  Yes, it was -- our vision was blocked looking east and  to the south from where we landed.  We could -- we  could see the -- parts of the Bernie Lakes.  :  Mr. Rush, the witness said that this Pillar Peak was  said to be a boundary, but I don't think he said  what --  Sorry.  :  -- it was a boundary of.  I'll clear that up.  Yes, it's a boundary between -- for Tsibasaa  territory, and it's also a boundary between the coast,  the Haisla, and the Wet'suwet'en.  :  Thank you.  The Haisla are to the west?  Yes.  Okay.  So this would be an external boundary, would  it?  External, yes.  Now, is there any other reference point that was  brought to your attention on that trip?  No.  The boundaries and landmarks that were pointed out to  you on this trip, had you heard of any of these before  at a Feast, a public Feast of the Wet'suwet'en?  Yes.  It is -- the whole area is often referred to as  Wu yaa nii.  Wu yaa nii?  Yes.  And does that have a Wet'suwet'en meaning?  What does  that mean?  It means far across.  Okay.  We'll have to get a spelling.  Wu yaa nii?  Yes.  jATOR:  Wu yaa nii, W-u y-a-a n-i-i.  And that means far across.  But were the -- some of  the names that you've given us in court today referred 1709  Alfred Joseph (for Plfs.)  In chief by Mr. Rush  1 to in a Feast?  2 A Pardon?  3 Q Were some of the names that you've referred to on this  4 particular trip -- have they been mentioned in a  5 Feast?  6 A Yes.  7 Q When the name Wu yaa nii is referred to?  8 A Yes.  9 Q And can you -- were any of these referred to by  10 Mathias Michell?  11 A Yes.  12 Q And by others in the Feast hall?  13 A Yes.  14 Q And are you able to tell -- tell us which of the names  15 that you've indicated have been referred to by Mathias  16 in the Feast hall?  17 A The -- when they speak of Wu yaa nii, they're talking  18 about the whole territory of Tsibasaa.  19 Q This is the Tsibasaa territory --  20 A Yes.  21 Q — is it?  22 And when they do that, do they also refer to names  23 on the territory?  24 A Yes.  25 Q And can you recall any of the ones that Mathias may  26 have mentioned at a Feast?  27 A He often talked of Wo'betl'eet.  28 Q Wo'betl'eet.  That's 237.  29 And was this on more than one occasion that he  30 would refer to Wo'betl'eet?  31 A Yes.  32 Q And do you recall if he made mention of any other  33 names?  34 A Yes, I heard people talking of T'se ggwa', Pillar  35 Peak.  36 Q Was that Mathias?  37 A No.  There was other people there.  38 Q All right.  39 A The former Tsibasaa spoke of it quite often because  40 he -- he used to go there.  41 Q Who was the former Tsibasaa?  42 A Jimmy George.  43 Q Jimmy George?  44 A Yes.  45 Q And Jimmy George has passed on, has he?  46 A Yes.  47 Q And he spoke of that location during a Feast? 1710  Alfred Joseph (for Plfs.)  In chief by Mr. Rush  1 A Yes.  2 Q Are there any other locations of that, any other  3 landmarks, rather, of that territory that you heard  4 made mention of at the Feast?  5 A It's -- no, it was -- it is the same as Nanika Lake.  6 It's sort of a narrow, deep valley, and there isn't  7 too -- all there is all around is mountains, and there  8 is -- the only features is the mountains around there  9 and -- and the river.  10 Q All right.  11 A Loo river runs in from Wu yaa nii.  It runs to the  12 west.  And loo River, it also has an Indian name.  13 Q Which river?  14 A Loo River.  15 Q Loo?  16 A Yes.  17 Q What's the name?  Is that a name on Tsibasaa's  18 territory?  19 A Yes.  20 Q What's that, the Wet'suwet'en name?  21 A It's -- loo is in our language loo, is what --  22 Q Loo?    ~                      ~  2 3 A Loo.  24 Q Loo?  25 A Yes.  It's a glacier, and that's where the river comes  26 from.  27 THE TRANSLATOR:  Loo, 1-underline-o-o.  2 8    MR. RUSH:        ~  29 Q Has that been mentioned in the Feast hall by --  30 A Yes.  31 Q Have these names been mentioned in the Feast by people  32 who have now passed on?  33 A Yes.  34 Q And has it been indicated in the Feast as to who the  35 owner -- who the owner is among the Wet'suwet'en  36 chiefs of this territory?  37 A Yes.  38 Q And you've indicated that this was Tsibasaa's  39 territory?  40 A Yes.  41 Q And Tsibasaa is from Smogelgem?  42 A Yes.  43 Q Was Tsibasaa the owner of this territory?  44 A Yes.  45 Q All right.  Now, you went on a helicopter flight the 46 following day, on August the 24th?  47 A   Yes. 1711  Alfred Joseph (for Plfs.)  In chief by Mr. Rush  1  Q  2  3  A  4  Q  5  A  6  Q  7  8  A  9  Q  10  11  A  12  Q  13  14  A  15  Q  16  A  17  THE  COURT  18  MR.  RUSH:  19  THE  COURT  20  MR.  RUSH:  21  22  23  THE  COURT  24  MR.  RUSH:  25  THE  COURT  26  MR.  RUSH:  27  28  29  30  31  32  33  34  35  36  37  THE  COURT  38  MR.  RUSH:  39  40  41  42  43  44  45  46  47  All right.  And was a video tape taken of the sites  that you were referred to on that flight?  Yes.  That was with Johnny David, wasn't it?  Yes.  Okay.  And you flew into an area that overlooked  McDonell Lake?  Yes.  This is the same McDonell Lake we've been referring  to?  Yes.  And you flew there with Dan Michell as well as Johnny  David?  Yes.  And Johnny David is still living?  Yes.  :  The other one was Johnny David and --  Dan Michell.  :  Thank you.  Now, my lord, I have a video tape of this viewing, if  you will.  There were three landing points and the  video tape demonstrates --  :  I'm sorry, three landing points on August 24th?  Three landing points, yes.  :  Yes.  And the video tape demonstrates what was pointed out  by Mr. Johnny David to Mr. Joseph, and it shows the --  both the method by which the names were obtained and  the process that was used, and it, of course, points  to the particular landmarks, geographic points that  are referred to in the -- by the witness.  And what I  would like to do is to show this video to you.  Now, I  should advise you that the video is 55 minutes long,  and there are a number of names that are -- were  communicated to Mr. Joseph in the course of these  three landing points.  :  There is audio on the tape, is there?  There is audio on the tape, and what the audio is  basically is in Wet'suwet'en Mr. Joseph asking Mr.  Johnny David what that mountain is and what this creek  is and Mr. Johnny David replies in Wet'suwet'en and  then Mr. Joseph says what is being pointed out in  English, so that, in effect, what you have is some of  the discourses in Wet'suwet'en and the balance of it  is in English.  Most of the conversation I think you  can follow by reference to the Wet'suwet'en names  which are identified by Mr. Joseph. 1712  Alfred Joseph (for Plfs.)  In chief by Mr. Rush  1  2  3  4  5  6  7  8  9  THE  COURT:  10  11  MR.  RUSH:  12  ]  13  14  15  16  17  THE  COURT:  18  MR.  RUSH:  19  20  THE  COURT:  21  22  MR.  RUSH:  23  24  25  THE  COURT:  26  MR.  RUSH:  27  THE  COURT:  28  MR.  GOLDIE  29  MR.  RUSH:  30  ]  31  THE  COURT:  32  i  33  MR.  GOLDIE  34  ]  35  THE  COURT:  36  MR.  GOLDIE  37  THE  COURT:  38  MR.  GOLDIE  39  40  ]  41  42  43  44  45  46  47  THE  COURT:  Now, not all of this video is necessary to be seen,  and I can clip certain portions of it, but in order to  refer to the names that are made mention of by Mr.  David, I think it's necessary to see a good -- a good  chunk of it, and I'm -- I'm -- I would like to show  this to you.  And I can start it now, but it may well  go over the four o'clock hour, and you may want to  begin with it in the morning.  How do you propose handling the video where  translation is required?  Is there a transcript?  No, there is no transcript.  I propose simply having  Mr. Joseph refer to the video and refer you to the  names that he -- that is being mentioned by Mr. David.  There is a good deal of the discourse, which deals  with trying to determine which is the correct peak and  what --  I'm going to have the same problem, am I not?  You are, but you'll have the assistance of Mr.  Joseph.  Well, is it your suggestion that the film will be  stopped while he makes explanations?  No. That could be done, but I'm not suggesting that.  I'm suggesting we run it and have Mr. Joseph make note  of the names and pass them on to your lordship.  Have your learned friends seen this?  It's been listed.  They haven't seen it.  Oh.  :  You might tell his lordship when it was listed.  I'm quite happy to.  It was listed on the 12th of  May.  Well, I think -- I don't know what your friends say.  What do you say, Mr. Goldie?  I'm tempted to say in for a penny, in for a pound,  my lord.  What does that mean?  :  Well, let the tide roll in.  Yes.  :  The only matter of concern for me is that there  will be an -- and I'm assuming that the video is  marked as an exhibit -- there will be portions of it  which are not translated.  I do not have a particular  concern over that.  I think it would have been better  to have prepared a transcript which could be followed  of those parts which are in -- in the Wet'suwet'en  tongue.  If that's not convenient, I am prepared to  take my chances.  All right.  Mr. Macaulay. 1713  Alfred Joseph (for Plfs.)  In chief by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR. MACAULAY:  I have no submission to make.  THE COURT:  All right.  Well, I think we'll look at the film.  You say it's 55 minutes?  MR. RUSH:  It's 55 minutes, but there is a spot where they point  out some caribou, and I don't think your lordship  would be interested in that.  MR. GOLDIE:  If my friend is referring to the listing of May the  12th of 3879, it does not refer to a video.  MR. RUSH:  May the 12th?  MR. GOLDIE:  That's right.  MR. RUSH:  Well, I understood that it did.  MR. GOLDIE:  What it refers is to June the 23rd heli-flight,  August 22nd heli-flight, August 23rd heli-flight,  without any identification of anything else.  MR. RUSH:  Well, I had understood that you understood that to be  a video.  Was I wrong in that?  MR. GOLDIE:  Much later.  THE COURT:  All right.  Well, it can be conveniently broken into  segments, can it, if we decide to adjourn?  MR. RUSH:  Yes.  We can start it now and proceed with it.  THE COURT:  Well, what is the view of counsel?  Should we stay  and see the whole thing this afternoon?  Pretty warm  in here, but we work under difficult and trying  circumstances sometimes.  It's of no consequence to  me.  GOLDIE:  I'm quite happy to get it going.  COURT:  All right.  All right.  RUSH:  Very well.  COURT:  Now, I think it should be understood that Madam  Reporter won't be expected to take down anything  except what Mr. Joseph may say on top of the video.  MR. RUSH:  All right.  That's fine by me.  All right.  I think, Mr. Joseph, maybe if you'd want to locate  yourself down here.  THE COURT:  Mr. Rush, we should have some ground rules.  Is it  your view that you should shut off the machine  whenever Mr. Joseph says something or do you think he  should just talk over it?  MR. RUSH:  He could do either.  There's enough room for him to  do that.  I can stop the machine.  I'm quite happy to  do that as well after a --  THE COURT:  Well, let's shut off the machine.  Well, let me ask  you this, are you giving Mr. Joseph a licence to speak  whenever he thinks it will be helpful or are you going  to ask him specific questions?  MR. RUSH:  I'm just going to ask him to point out certain of the  geographic features that are in the -- that are  MR.  THE  MR.  THE 1714  Alfred Joseph (for Plfs.)  In chief by Mr. Rush  1 referred to by Mr. Johnny David.  And as you'll see,  2 that is actually done on the video.  3 THE COURT:  I see.  All right.  4 MR. RUSH: And he'll be repeating, for the most part, what  5 occurs on the video?  6 THE COURT:  Yes.  All right.  Is this monitor going to work or  7 should I move somewhere else?  8  9 (VIDEO PLAYED)  10  11 MR. RUSH:  12 Q Mr. Joseph, maybe you'll just refer to the geographic  13 names that are pointed out to you at the time that  14 they're mentioned.  Can everybody hear?  15 Maybe just make reference to that for the sake of  16 the record.  17 A Keel Weniits.  18 MR. GOLDIE:  Whose voice is that?  19 MR. RUSH:  20 Q Is that your voice on there, Mr. Joseph?  21 A Yes.  22 Q And who is the other voice?  23 A Johnny David.  24 Q And reference was made to Keel Weniits?  25 A Yes.  26 Q Okay.  Was that name pointed out, Mr. Joseph?  27 A That's the -- out of the territory.  28 Q Is a name being pointed out here?  29 A Yes.  30 Q What is the name?  31 A Dzel Yez.  We have that already.  32 Q Is that you in the --  33 A Yes.  34 Q -- in the camera's eye?  35 A Yes.  36 External boundaries between the Gitksan and the  37 Wet'suwet'en.  38 That's Gitksan territory.  39 Q That name, is -- is that a Wet'suwet'en name?  4 0 A No.  41 Q That's a Gitksan name?  42 A Gitksan name.  43 Q And he's pointing in which direction?  44 A West from it.  45 Our boundary, Wet'suwet'en boundary.  46 Q Who is that on the right of --  47 A Dan Michell.  Dan Michell. 1715  Alfred Joseph (for Plfs.)  In chief by Mr. Rush  1 Q   And in the middle?  2 A   Sde keen t'aat.  3 Q   Is that a name you've heard before?  4 A   Yes.  5 Q   What was the camera --  6 A   That's McDonell Lake there, part of it.  7 He is explaining Gitksan names.  We didn't  8 understand them.  I ask him which mountain, and he's  9 pointing it out to me.  10 Q   Mr. David is pointing to a certain place here, is he?  11 A   That's Gitksan territory so we --  12 THE COURT:  Mr. Rush, could you stop it for a moment?  13 MR. RUSH:  Yes.  14 THE COURT:  My notes are the first stop was at McDonell Lake on  15 August 2 3rd.  16 MR. RUSH:  This is the next day, my lord.  This is the August  17 24th.  This is a completely separate trip.  18 THE COURT:  All right.  Well, I just want to get my notes  19 straight then because we're still on the first  20 landing, I think, are we not?  21 MR. RUSH:  The first landing of the 24th of August, yes.  22 THE COURT:  The first landing on the 24th?  2 3 MR. RUSH:  Yes.  24 THE COURT:  I can't find where my first landing is.  25 MR. GOLDIE:  It's not been identified, my lord, other than an  26 area overlooking McDonell Lake, I believe.  2 7 MR. RUSH:  28 Q   Mr. Joseph, the place where the helicopter landed on  29 that first occasion, are you able to tell his lordship  30 what that point was?  31 A   It was west -- a western boundary of the Wet'suwet'en  32 territory overlooking the Gitksan territory.  33 Q   Does the place have a name?  Was it a mountain or a  34 mountaintop?  35 A   Yes, Dzel Yez.  36 Q   Dzel Yez?"  37 A   Dzel Yez.  38 Q   That's where the helicopter was sitting?  39 A   Yes.  40 MR. GOLDIE:  What was that name again?  41 MR. RUSH:  42 Q   Dzel Yez.  43 A   Dzel Yez.  44 THE INTERPRETER:  222.  45 MR. RUSH:  222 was the point at which the helicopter first set  4 6 down.  47 THE COURT:  Well, I've got a note that said the first landing 1716  Alfred Joseph (for Plfs.)  In chief by Mr. Rush  was a mountain south-east of Nanika Lake, Nanika Lake.  I think that's the 23rd, my lord.  That's the day  before.  :  All right.  You say that's the 23rd then?  Yes.  :  All right.  The second landing, the north shore of  Morice Lake, was also the 23rd?  That's right.  :  The third landing was on the west slope of Herdome  Mountain, and that's the 23rd?  Yes.  :  All right.  All right.  Well now, did the witness  not go through the three landings on the 24th?  He's just now started the first one.  :  Oh, all right.  The point that we're at now is Mr. Joseph's  description or accounting of --  :  Now, I'm in error.  I thought that you went through  both days --  No.  :  -- and gave me the three landings on each day.  No, I didn't.  I just started into that now.  :  I'm able to locate myself again.  That's fine.  Thank you.  (VIDEO PLAYED)  All right.  What's he referring to here --  He's referring to a mountain out in the Gitksan  territory.  And is that to the west?  Yes.  And what was that, Wil saamoos?  Yes.  That's swinging east towards Hudson Bay Mountain.  Is this mountain identified, Mr. Joseph?  Yes.  He's -- right there.  C'en gghel xunt xut.  C'en  39 gghel xunt xut.  East is Hudson Bay Mountain.  Mr. Joseph, which direction is that mountain?  Facing east.  Looking to the east?  Yes, we're looking at Hudson Bay Mountain on the left.  Is Hudson Bay Mountain in this as well?  Yes, it's the one on the left.  :  Mr. Rush, I'm sorry, could you shut it off again for  a minute?  1  2  MR.  RUSH:  3  4  THE  COURT  5  MR.  RUSH:  6  THE  COURT  7  8  MR.  RUSH:  9  THE  COURT  10  11  MR.  RUSH:  12  THE  COURT  13  14  MR.  RUSH:  15  THE  COURT  16  MR.  RUSH:  17  18  THE  COURT  19  20  MR.  RUSH:  21  THE  COURT  22  MR.  RUSH:  23  THE  COURT  24  25  26  27  28  MR.  RUSH:  29  Q  30  A  31  32  Q  33  A  34  Q  35  A  36  37  Q  38  A  40  Q  41  A  42  Q  43  A  44  Q  45  A  46  THE COURT  47 1717  Alfred Joseph (for Plfs.)  In chief by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR. RUSH:  THE COURT  MR  MR. RUSH:  Yes.  THE COURT:  Is seems to me, Mr. Rush, that there is no purpose  in having the reporter take down what Mr. Joseph says  because there is no way to relate it to the video, and  I think that it would be better just to show the film,  and then if there is an explanation or something  further required, then I think it's got to be  identified or isolated and evidence taken on it.  It  will be meaningless --  MR. RUSH:  All right.  THE COURT:  -- to have the reporter take down the odd word when  it can't be related to the picture.  All right.  Well, I think what I'm going to ask Mr.  Joseph to do is just to make note of what is referred  to here, and I then may ask him about it.  I think you needn't take the rest of this down,  Madam Reporter.  GOLDIE:  The alternative, and indeed the only other way --  the only way in which I've seen one of these things  done, is for the observations of the witness to be --  be referenced to the minute, the number of the video,  but that really shouldn't be done here.  That should  have been done beforehand.  THE COURT:  We can't do that now.  MR. GOLDIE: I agree with your lordship. The reporter is  taking things down that your lordship isn't even  hearing.  THE COURT:  And I can't relate it to the picture anyway.  MR. RUSH:  I'm happy to do it on the basis —  THE COURT:  We'll just show the film, let it run right through,  and if you want to ask Mr. Joseph questions about it  later, then we can somehow connect it together.  That  will be fine.  MR. RUSH:  All right.  THE COURT:  Thank you.  (VIDEO PLAYED)  MR. GOLDIE:  Is there a list that's being referred to here, 152,  156, 157?  It's in Mr. Joseph's field notes.  :  Now that the video -- the audio isn't working, Mr.  Rush, can Mr. Joseph tell us --  Do you want me to take it back?  :  No, no, no.  It's all right.  Mr. Rush, can Mr. Joseph tell us where the  helicopter has landed?  I think it's somewhere in the  MR. RUSH:  THE COURT  MR. RUSH:  THE COURT 171?  Alfred Joseph (for Plfs.)  In chief by Mr. Rush  1 north-west end of the Telkwa Mountains, is it?  2 THE WITNESS:  It's headwater of the Telkwa River.  3 THE COURT:  Yes.  4 MR. RUSH:  5 Q   Is this the second landing?  6 A   Second, yes.  The third one would be overlooking  7 Bernie Lakes.  8 THE COURT:  Mr. Rush, can Mr. Joseph tell us are we still at the  9 same location?  10 THE WITNESS:  No, we're moved to overlooking Bernie Lakes.  11 THE COURT:  We're now overlooking Bernie Lakes.  12 MR. RUSH:  This is the third point.  13 THE COURT:  Can you tell us which direction you were facing  14 there?  15 THE WITNESS:  South.  16 THE COURT:  Facing south.  Would Owen Creek be at the far end of  17 that lake?  18 THE WITNESS:  Pardon?  19 THE COURT:  Is Owen Creek at the far end of that lake?  20 THE WITNESS:  No, that's Bernie.  21 THE COURT:  Oh, Bernie.  22 THE WITNESS:  Bernie Lakes.  23 THE COURT:  Oh, all right.  24 Is there anything else this afternoon?  25 MR. RUSH:  I think not.  I'll ask Mr. Joseph some questions  26 about that tomorrow just to pinpoint some of those  27 place names.  2 8 THE COURT:  All right.  Ten o'clock.  29 MR. RUSH:  Thank you.  3 0 THE COURT:  Thank you.  31 THE REGISTRAR:  Order in court.  32  33 (PROCEEDINGS ADJOURNED)  34  35 I hereby certify the foregoing to be  36 a true and accurate transcript of the  37 proceedings herein to the best of my  38 skill and ability.  39  40  41  42 Leanna Lynn  43 Official Reporter  44 United Reporting Service Ltd.  45  46  47 32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  later, then we can somehow connect it together.  That  will be fine.  MR. RUSH:  All right.  THE COURT:  Thank you.  (VIDEO PLAYED)  MR. GOLDIE:  Is there a list that's being referred to here, 152,  156, 157?  MR. RUSH:  It's in Mr. Joseph's field notes.  THE COURT:  Now that the video — the audio isn't working, Mr.  Rush, can Mr. Joseph tell us --  MR. RUSH:  Do you want me to take it back?  THE COURT:  No, no, no.  It's all right.  Mr. Rush, can Mr. Joseph tell us where the  helicopter has landed?  I think it's somewhere in the 171?  Alfred Joseph (for Plfs.)  In chief by Mr. Rush


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