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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1988-06-01] British Columbia. Supreme Court Jun 1, 1988

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 6761  1 Vancouver, B. C.  2 June 1, 198 8.  3  4 THE REGISTRAR:  Calling Delgamuukw versus Her Majesty the Queen,  5 at bar, my lord.  I caution the witness, you are still  6 under oath.  7 THE COURT:  Mr. Grant?  8  9 EXAMINATION IN CHIEF BY MR. GRANT:   (Continued)  10  11 MR. GRANT:  12 Q   Thank you.  Yesterday at the end of the day you were  13 explaining about your own personal involvement in the  14 fishery, and you identified, and I would refer you in  15 the document book to tab 15, Exhibit 575, which is the  16 affidavit, your affidavit and the Gitwangak Indian  17 Fishery By-law.  The other day you referred to events  18 that have occurred since 1977 with respect to the  19 fishery and what I would like to ask you about, the  20 area I would like to ask you about is the history of  21 the events between 1977 and 1986 at the time of  22 this -- the passage of this by-law, and focusing on  23 why this, what efforts the Gitksan chiefs took with  24 respect to the fishery.  Can you explain what happened  25 to initiate the concern with respect to the fishery  26 around 1977?  27 A   There was -- we had a number of disputes with respect  28 to our fishery, there was a number of things that had  29 occurred, a number of negotiations had been held with  30 the Department of Fisheries in respect to attempt to  31 reduce the number of charges imposed on the members of  32 the band.  And the one area that we had attempted was  33 the taking of a blanket trapline, one --  34 Q   When you say blanket trapline --  35 A  A blanket food fishing permit for the whole area.  36 That's for all the eight bands in the Gitksan and  37 Wet'suwet'en area.  That helped diffuse the tension  38 between our people and the department.  There was also  39 other options that were looked at in the long term,  40 not the long term but the interim solutions, one area  41 that we had possibly had an opportunity to look at was  42 the Indian Act, and the development of a fishing  43 by-law for the bands in the whole Gitksan and  44 Wet'suwet'en area.  There were a number of by-laws  45 that were developed, a number of negotiations had  46 taken place with the Department of Indian Affairs,  47 there was by-laws that were done in 1983 and they were 6762  G. Williams (For Plaintiffs)  In Chief by Mr. Grant  1 disallowed.  2 Q   By the minister?  3 A   By the Minister of Indian Affairs.  There was a by-law  4 that again was done in 1985, then again it was  5 disallowed.  We initiated court action challenging the  6 minister's authority to disallow the by-law but again  7 we made efforts to try and negotiate an acceptable  8 by-law with the Department of Indian Affairs.  And  9 there were a number of changes in clauses and the  10 areas of the by-law and in 1985 or -- '85 there was  11 by-laws put forward again, just to set the agenda  12 again with the Department of Indian Affairs.  And the  13 Department of Indian Affairs had discussions with the  14 Department of Fisheries and Oceans to try and come up  15 with an acceptable by-law.  And there were clauses  16 that were added, clauses that were deleted, to  17 by-laws, and then in 1986 the by-law that, that's here  18 right now was allowed to be passed.  The only change  19 that we added on there was that we would agree to meet  20 with the other user groups up and down the Skeena.  21 But that again took a lot of negotiations on our part.  22 We met with David Crombie, who was the Minister of  23 Indian Affairs then.  24 Q   Were you yourself involved in those meetings?  25 A   Yes, I was involved, Neil Sterritt, myself and I can't  2 6 remember who else was involved in the meeting in  27 Ottawa in March of 1986.  And we added that clause  28 that we would meet with other user groups, the  29 commercial fishermen, the sport fishermen and other  30 Indian groups along the Skeena.  That's one area where  31 we agreed and we added a clause to it.  32 Q   Could you refer to Exhibit 575 in front of you and  33 indicate to the court where that addition is in the  34 by-law?  35 A   It's the -- this -- the last whereas clause on page  36 one and the first whereas clause on page 2.  37 Q   Why was that change made?  Why did you -- why was that  38 asked for or why did you agree to make that change?  39 A   The Department of Fisheries and Oceans were quite  40 concerned about the commercial fishermen.  There was a  41 lot of lobbying going around by the commercial  42 fisherman and sports fishermen with the minister of  43 fisheries and to try and make sure that the by-law  44 would be passed at this time or allowed to stand, we  45 added that clause in there.  46 Q   Were there negotiations between yourself and the  47 Minister of Indian Affairs regarding the form of the 6763  G. Williams (For Plaintiffs)  In Chief by Mr. Grant  1 by-law between 1983, when you said you passed the  2 first by-law, and 1986, when this by-law that's before  3 the court was finally passed?  4 A   Yes, there was.  5 Q   Were they continuing negotiations over that period of  6 time?  7 A   There was a lot of negotiations.  8 Q   What was the motivation, from your perspective, as to  9 why a by-law, all of this effort should be put into a  10 by-law over those three years?  11 A  Mainly to diffuse all the charges that had happened,  12 and there was extensive charges laid on our band  13 members, the nets were taken, nets were burnt, there  14 was increased patrols by fisheries.  At that  15 particular time there was fishery officers were  16 carrying sidearms and our elders were confronted with,  17 at times, 15 officers at a particular site and they  18 were alone then.  We needed something to try and  19 protect them and to try and enjoy what we have always  20 enjoyed with the fishery.  21 Q   I would like to refer you to Exhibit 575 for a few  22 moments, and I would like to ask you about some  23 specific terms that are in this by-law that you  24 passed.  Paragraph 1(d) on page 2, states that  25 "Insofar as this by-law enacted pursuant to the Indian  26 Act may override legislation which conflicts or is  27 inconsistent with this by-law, it is intended that  28 this by-law is to be so construed."  29 Were you there arranging for the terms in there,  30 were you -- did you consider -- did that have anything  31 to do with what was going on regarding fisheries  32 officers?  33 A   Yes, that was mainly to force back the Fisheries Act  34 outside of the reserve boundaries.  And not to allow  35 their legislation to be in effect on our reserves.  36 Q   Now, I would like to ask you about paragraph or  37 section 6 of the by-law on page four, which states:  38 "Gitksan-Wet'suwet'en people are permitted to use,  39 buy, sell, trade or barter fish caught within the  40 waters of the Band in accordance with their  41 traditional laws and customs."  42 Can you tell us why you put that clause in the  43 by-law?  44 A   It was mainly an attempt to try and develop an inland  45 fishery and what we had discussed was a test inland  46 fishery that was mainly to test the inland fishery.  47 That's why you have the buy and sell in there. 6764  G. Williams (For Plaintiffs)  In Chief by Mr. Grant  1 Q   Can you explain in more detail what you mean by the  2 inland fishery?  3 A   The inland fishery, it was mainly because we seen the  4 salmon going right by our reserves that we have, we  5 had specific products that we wanted to try and test  6 the market on it, and use our own traditional methods,  7 our own traditional training and the traditional  8 salmon products like half smoked salmon, fully dried  9 salmon, salmon strips and belly strips and it was to  10 try and test out those products.  And get into other  11 products, like concentrated salmon soup and also to  12 try and test out fish nuggets, those type of products  13 that we wanted to test out and hopefully with the  14 intent of developing that into the future, to be --  15 and to have a good economic base on our fishery, the  16 salmon fishery.  Our plans for that year was only to  17 take 10,000 sockeye and that we would test that.  And  18 use our own products, the products that we have had  19 and it was so relevant to us, it was so simple to do,  20 but just enhance it with health standards and  21 inspections, those sorts of things.  22 Q   And were you considering the commercialization or the  23 sale of these products?  24 A   Yes.  25 Q   Now, why did you put in section 6 that "...to use buy,  26 sell, trade or barter...in accordance with the  27 traditional laws and customs"?  28 A   Because the fishery belongs to the hereditary chiefs,  29 there are houses that own specific fishing stations or  30 holes, sites, they own it and the plan was that the  31 houses and the chiefs would be the ones that would be  32 in authority over the inland commercial fishery, and  33 the houses would get the economic benefit from  34 developing a commercial inland fishery.  35 Q   You described yesterday afternoon, Mr. Williams, about  36 how you yourself are using Lelt's fishing site, would  37 you -- with his permission -- would that be an example  38 of complying with the Gitksan law which the by-law was  39 considering?  40 A   Yes.  41 Q   I would like to refer you to section 4(a), which  42 provides that you, that "Gitksan-Wet'suwet'en persons  43 are permitted to engage in fishing in waters of the  44 bands at any time and by any means..."  and then there  45 is the exceptions, "expolsive materials, rockets,  46 combustibles, projectiles, shell or other like  47 substances, subject to variations or restrictions as 6765  G. Williams (For Plaintiffs)  In Chief by Mr. Grant  1 may be made pursuant to this by-law."  2 I will comment, your lordship, that those  3 exceptions are almost identical to the exceptions  4 provided in the Fisheries Act itself, the rockets and  5 combustibles, et cetera, in fact I think they are  6 identical.  7 Were you -- you have described or referred to the  8 fact of drift netting and set netting, was there any  9 consideration of other methods of fishing in the  10 Gitwangak area, other than drift netting and set  11 netting, other than the provisions of the by-law?  12 A  We had plans for using traps, fish traps and fish  13 weirs, because what the fish trap does, it -- you can  14 be very selective in using a fish trap, because you  15 can grade the salmon as to ones you want.  If all we  16 wanted, for instance, say sockeye, we would only take  17 the sockeye and the salmon would go into the trap, it  18 wouldn't be damaged as opposed to a net, and if we  19 didn't want the steelhead we would just take the  20 steelhead out of the traps and let the steelhead go  21 without being damaged.  And those were the ideas that  22 we had with traps.  And the same thing with a fish  23 weir, fish weir is just a fence and you can put a boat  24 or a canoe on the other side of the fish weir and the  25 salmon will just jump over into the boat and the ones  26 you don't want, steelhead, like steelhead, you can  27 just let them go again.  28 Q   Maybe I could just refer you to sections 13 and 14 of  29 the by-law on page five.  Which is a -- appear to be  30 prohibition sections to prohibit the pollution, in  31 fact -- in the waters of the band.  And section 14 and  32 section 15 is with respect to slash.  Why did you  33 include that kind of provision within the by-law?  34 A   The salmon has been a very -- has been a real part of  35 our lives, and that the Gitksan and Wet'suwet'en  36 people are not going to leave where they are living  37 right now, and we wanted to ensure that the resource  38 was protected, it wasn't going as to be damaged and we  39 wanted to sustain the resource, we want to protect it  40 for the future.  And make sure that if any sawmills or  41 logging companies or anybody that would — had any  42 influence on the river or the habitat, that at least  43 we had some protection in ensuring that our philosophy  44 of how to protect the salmon would be incorporated in  45 our by-law.  46 Q   I just direct you, and I will ask you further about  47 this later in your evidence, Mr. Williams, but 6766  G. Williams (For Plaintiffs)  In Chief by Mr. Grant  1 sections eight and nine provide for the appointment of  2 fisheries officers under this by-law?  3 A   That's correct.  4 Q   And that is something that you have been considering?  5 A   Yes.  6 Q   Now, I would like to refer you to part three, page  7 eight, which deals with the Gitksan-Wet'suwet'en  8 sports fishing regulations, and there is also a  9 Schedule "A" at the end, which sets out a fee schedule  10 for sports fishing.  Can you explain to the court why  11 sports fishing is of any concern or relevance to the  12 Gitwangak people?  13 A   There is -- we usually get lots of tourists from all  14 parts of Canada, the U.S., we get lots of tourists  15 that come to our community and camp and we have got  16 really good sports fishing areas, right on the reserve  17 and along the river bank.  We usually have 40 to 50  18 anglers that come in and fish, particularly in  19 September, the month of September and earlier on, and  20 there is some concern with respect to the Gitwangak  21 River, which is right on the reserve itself, concerns  22 about the spring salmon that were going up that river,  23 and concerned about the steelhead that were going up  24 the river and the coho that were going up that river.  25 And the majority of the sport fishermen would occur  26 right at the mouth of the Gitwangak River where it  27 goes up to where it empties into the Skeena.  That's  28 where a majority of the sport fishermen are and we  29 were advised that in order to increase that, we had to  30 control the sport fishermen in that particular area,  31 as well as ourselves.  To ensure that the stocks are  32 built up.  33 Q   And why did you set these fees in Schedule "A"?  34 A  Mainly to help, help about the costs of having our own  35 fishery officer and other fishing plans that we may  36 have.  It costs a lot of money to have people work for  37 you, whether they look after the habitat or to pay for  38 a fishery officer to develop your own licences, those  39 sorts of things.  40 Q   I would like to refer you to part five, on pages ten  41 and 11 and 12, which sections 46 through to 58, which  42 establishes a procedure for a review panel and it  43 provides that a person has to have a permit before  44 they can do anything to reduce the productive capacity  45 of the waters of the band and it's under sections  46 governing habitat protection.  Can you explain why you  47 passed those sections of the by-law? 6767  G. Williams (For Plaintiffs)  In Chief by Mr. Grant  1 A   Just to ensure that the management regime was in place  2 and the by-law was followed and it was understood, but  3 mainly to ensure that there was management, the  4 management was there to comply with the by-law, to  5 comply with the -- with some of the -- with the  6 habitat, how we -- that was mainly a management --  7 Q   So was it the concept that this by-law would govern,  8 this by-law would allow management of all aspects of  9 the fishery?  10 A   That's correct, on the reserve, yes.  11 Q   I would like to to refer you to section 59 on page 12,  12 which states that, "The band council shall appoint  13 members to a Gitksan advisory board consisting of the  14 hereditary chiefs of the Lakh Seel, Lakh Gibuu, Lax  15 Sgiik and Kisgaast Clans of the Gitksan people to make  16 recommendations to the Tribal Council regarding  17 closures, use of specific sites, use of specific gear  18 and regulations based on the traditional ownership and  19 rights of access to traditional fishing sites within  20 the waters of the band, which has nominated them as a  21 member of the Gitksan Advisory Board."  22 Why that was provision incorporated into the  23 by-law?  24 A  All these sites belong to the houses, the chiefs and  25 the members of their houses.  It's really known what  26 sites they have, it doesn't belong to the band  27 council, and the reason why we stated the advisory of  28 hereditary chiefs is that throughout our negotiations  29 with Indian Affairs and Department of Fisheries, the  30 Department of Justice was involved in that, and they  31 simply wouldn't accept the authority of the hereditary  32 chiefs.  So we tried to build in the authority and  33 their ownership into this law, clause that's basically  34 the purpose of it, was that for ourselves, as the band  35 council, to at least try and put that in in the by-law  36 that recognize that it is theirs, it is their fishing  37 sites and they own the -- they own it and they have  38 their own management systems.  39 Q   Why did you set this up, this, the body of the  40 hereditary chiefs as a "advisory body" in the by-law,  41 why didn't you have them actually be the  42 administrators of the by-law?  43 A   Because the Justice Department just wouldn't accept  44 it, they wouldn't allow the by-law to go through if we  45 said the authority of the hereditary chiefs.  But the  46 advisory was acceptable to them and that's how the  47 by-law was allowed to pass. 676?  G. Williams (For Plaintiffs)  In Chief by Mr. Grant  1 Q   In the context of your history of how you worked with  2 the hereditary chiefs of Gitwangak, what would be the  3 real effect of this advisory body, in terms of  4 decision making, and here I would ask you about the  5 decision making of the fishery, what role the  6 hereditary chiefs would have, or what extent of say,  7 as compared to the band council?  8 A   Oh, the chiefs would have the ultimate say.  I think  9 they are the ultimate decision makers in respect to  10 the fishery.  You know, the band council can only  11 attempt to assist in things like the by-law, that we  12 can use that, the present band council system to  13 advance some of what our chiefs have been saying and  14 use the existing legislation that's available to try  15 and advance what they have been telling us and attempt  16 to try and get some recognition of their authority.  17 But they are the ones that make the ultimate  18 decisions.  19 Q   How many times did you travel to Ottawa to negotiate  20 this by-law with the minister in the 1983-'86 period?  21 A   It may be twice but I remember one specifically.  I  22 remember one in March of 1986, where I went with Neil  23 Sterritt.  24 Q   And that was after you had passed the by-law but  25 within the 40 day period in which the minister could  26 or could not disallow it?  27 A   That's right.  28 Q   I would like to refer you to Exhibit 26 which, madam  29 registrar, it's the Petition of Right.  30 THE COURT:  46?  31 THE REGISTRAR:  26.  32 MR. GRANT:  Just for ease, I will refer to the actual exhibit  33 and I have a copy here, my copy of the exhibit.  34 Q   Are you familiar with that document?  35 A   Yes, I am.  36 Q   And were you involved at all in the work leading up to  37 the development of that Petition of Right to the -- to  38 Her Majesty the Queen in right of the Province?  3 9 A   Yes, I was.  40 Q   And I believe the other day you explained you were  41 involved in the research, you assisted other staff  42 members of the Tribal Council in mapping fishing sites  43 which are ultimately referred to in that document or  44 in the schedules to that document?  45 A   That's correct.  46 Q   Can you explain why the initiative was taken with  47 respect to the Petition of Right in 1983? 6769  G. Williams (For Plaintiffs)  In Chief by Mr. Grant  1 A   It was mainly to initiate an action against the  2 province to try and exert the ownership and -- of the  3 hereditary chiefs over the fishery and the fishing  4 sites of the chiefs and there was a fiat that was --  5 that was sought at that time and was denied, and I  6 don't think the action went very much further than  7 that.  8 Q   Now, with respect to the by-law, you -- which was  9 Exhibit 575 that you were just looking at, you  10 indicated that this by-law was not disallowed, and  11 what happened subsequent to the non-disallowance of  12 the by-law, is that after the by-law came into force  13 at the beginning of April, 1986, what happened  14 subsequent to that?  For example, I would focus you on  15 those whereas clauses where you had agreed to meet  16 with the other fisheries groups, did you in fact meet  17 with them?  18 A   Yes, we did.  The statement that we made to Tom Siddon  19 and David Crombie was that we will not implement the  20 by-law until mid-June of 1986.  We made that  21 commitment and we made that promise that we wouldn't  22 implement them.  We agreed to have consultation with  23 other user groups, other native groups down the Skeena  24 and up the Skeena, we also wanted to meet with the  25 commercial fishermen and also the sport fishermen.  We  2 6 wanted to try and work out an arrangement of how we  27 could all work together on the fishery on the Skeena  28 River.  And we did meet, there was a meeting planned  29 for May 5th, 1986, with all the native groups in B.C.,  30 that was held at the Hotel Vancouver where the  31 minister of fisheries was there, David Crombie was  32 there, Minister of Indian Affairs, the commercial  33 fishery was there, people like Paddy Green, that's who  34 I remember, and industry -- the commercial industry,  35 that's the canneries, the companies were all there,  36 the sport fishermen were there, all the other native  37 groups in B. C. were there, I remember seeing the  38 Nisga'a, the west coast native groups, and they had  39 that meeting in the morning and it was -- it didn't  40 appear to be getting anywhere, and the -- I believe  41 there was a suggestion that we would meet with the  42 other user groups, if any native group wanted to meet  43 with the commercial fishermen and sport fishermen  44 there would be time alloted that afternoon, and that  45 opportunity was there.  Immediately Neil Sterritt, the  46 president at that time, got up and said, yes, we have  47 that commitment.  We stated in our by-law we will meet 6770  G. Williams (For Plaintiffs)  In Chief by Mr. Grant  1 with them and we did meet with them that afternoon.  2 And the plan was that there would be a small working  3 group to try and sort out differences or any problems  4 and we left that meeting with the understanding that  5 the industry, sport fishermen and native group, would  6 have a small working group together to try and work  7 that out.  And I remember Neil Sterritt saying that we  8 were going to be meeting on the 15th of May, 1986, the  9 small working group.  That meeting never took place at  10 all.  11 Q   What happened?  12 A   From my understanding with Neil, he said that the  13 other groups didn't want to meet.  14 Q   You were in attendance in this group of meetings on  15 May 5th?  16 A   Yes, that's correct.  17 Q   And was the Minister of Fisheries and Oceans there?  18 A   Yes.  19 Q   And the Minister of Indian affairs?  20 A   Yes, he was.  21 THE COURT:  That was May 5th, was it?  22 A   Yes, May 5th, 1986.  2 3 MR. GRANT:  24 Q   Now, subsequent to the May 5th, 1986 meeting, what was  25 the next thing that happened in terms of the working  26 relationship between yourselves, that is the Gitksan  27 and the other user groups?  2 8 A  Well, we made that commitment, you know, that we  29 wanted to, didn't want to implement the by-law until  30 June 15th of '86.  Meanwhile Neil Sterritt went on  31 vacation and we still had that commitment, and because  32 the other user groups didn't want to meet with us, we  33 had to decide what we wanted to do with the by-law in  34 our own communities.  We met with our hereditary  35 chiefs, and because there was some -- an opportunity  36 to, with the by-law being passed, there would be  37 massive sales of salmon that was legal under our  38 by-law, we wanted to try and control that, we wanted  39 to have a system in place on our own that would not  40 allow for massive sales of salmon but we had talked  41 about how we would conduct the by-law in 1986 and we  42 established some principles, we said that the  43 resource, the foremost in our mind was that the  44 resource had to be protected, conservation was  45 foremost in our minds, the food fishery was one of the  46 principles that we should take enough food for our own  47 supply, and if the chiefs had agreed to it at that 6771  1  2  3 MR.  PLANT  4  A  5  6 MR.  GRANT  7  Q  8  9  A  10  11  12  Q  13  14  A  15  Q  16  17  A  18  Q  19  A  20  21  22  Q  23  A  24  25  26  27  28  29  30  31  32  Q  33  34  A  35  36  37  38  39  40  41  42  43  44  Q  45  46  47  A  G. Williams (For Plaintiffs)  In Chief by Mr. Grant  time, that there would be a limited test fishery of  10,000 sockeye.  That was --  :  Sorry, if the chiefs had agreed?  If the chiefs agreed there would be a limited test  fishery of approximately 10,000 sockeye.  And what was the chiefs' response to this proposal of  these priorities?  They endorsed them, they endorsed it, they agreed with  the conservation of the the food fishery and they  agreed with the consent of a limited test fishery.  And was this in advance of the June 15th date when the  by-law was going to take effect?  Oh, yes, yes.  And so did you in fact implement the by-law and the  test fishery in 1986?  No, we didn't.  Can you explain to the court what happened next?  I think it was around June 15th that a ex parte  injunction was sought by the A. G. Department of the  province, along with the Pacific Defence Alliance.  Who is the Pacific Defence Alliance?  The Pacific Defence Alliance is all the industry  companies and commercial fishermen, trollers, mainly  non-Indian groups.  The non-Indian group in the  commercial fishery.  And we had all the rod and gun  clubs of B. C. that were involved in getting the ex  parte injunction on us, all the sport fishermen groups  in the province, they were all a party to the ex parte  injunction, the Trollers Association, they were all  non-Indians.  What did you do after that ex parte injunction came  down?  The ex parte injunction came down late on a Friday, we  had to defend the following week, we had to scramble  to try and put our defence together, what I just said  earlier, our commitment that the by-law wouldn't be  implemented until June 15th, our commitment to meet  with the industry, other user groups, we documented  that and tried to overturn the injunction.  We spent a  whole week in Vancouver, we were unsuccessful, the  judgment came down the week following and confirmed  that the ex parte injunction would stay in place.  Did the Pacific Fishermens' Alliance publicize their  position around the time of this injunction in any  way?  Oh, yes, yes.  They publicized, newspaper articles in 6772  G. Williams (For Plaintiffs)  In Chief by Mr. Grant  1 the Globe and Mail, they bought a big section in the  2 Vancouver Sun and they were -- they had radio stations  3 all tuned into what their little number was, and news  4 media.  5 Q   I would like to refer you to tab 16 of your document  6 book and ask if you have seen that document before?  7 Do you recognize that document?  8 A   Yes, I do.  9 Q   Can you explain what that was?  10 A   It is a news clipping on the Vancouver Sun of May 3rd  11 and just before we met with Tom Siddon and David  12 Crombie on May 5th, we noticed this big article just  13 before we went into the meeting.  And it was mainly to  14 do with our fishing by-law.  15 MR. GRANT:  I would ask that that document be marked the next  16 exhibit, Vancouver Sun tear sheet, May 3rd, 1986.  17 MR. PLANT:  I don't see the relevance of the document.  So I  18 object.  19 THE COURT:  Well, is the objection one of relevance or is it one  20 of admissibility?  21 MR. PLANT:  Well I don't — it may be both, my lord.  I don't  22 see the relevance of much of this evidence, but in  23 particular the significance of this witness having  24 seen a "news clipping" in the Vancouver Sun before  25 going into a meeting, I don't see the relevance of  26 that.  Nor -- well, that's my primary objection, is  27 that it's irrelevant.  28 THE COURT:  This is an out of court statement made by the B. C.  29 Wildlife Federation on behalf of all fishermen.  How  30 is it relevance against either of these defendants,  31 Mr. Grant?  32 MR. GRANT:  This document is not treated for the truth of the  33 contents, but for the fact this advertisment  was  34 taken out at this time.  It goes to the very issue, my  35 lord, and I am -- I wish to comment that this  36 document, this document was -- it goes to the issue of  37 the opposition to the efforts by the Gitksan and the  38 Wet'suwet'en to take over the management and control  39 of their own fishery.  40 THE COURT:   But I am hearing a contest between plaintiffs and  41 defendants.  How is a statement made out of court by  42 someone else --  43 MR. GRANT:  These -- this organization, my lord, as the witness  44 has already explained, was subsequently in court by or  45 with the aid and in fact of the provincial defendant.  46 THE COURT:  Well, there may have been all kinds of relationships  47 of one kind or another.  But how does an out of court 6773  G. Williams (For Plaintiffs)  In Chief by Mr. Grant  1 statement by a third party become evidence in this  2 trial?  3 MR. PLANT:  Even assuming there is evidence that this is the  4 statement of a third party.  5 THE COURT:  Isn't there a section in the Evidence Act that says  6 an advertisement in the newspaper is rebutably  7 presumed to have been inserted by the person on whose  8 behalf it appears to have been inserted?  9 MR. PLANT:  This is an advertisement, my lord.  It's been  10 mis-identified by the witness as a news clipping.  11 THE COURT:  I am going to assume the law is unchanged from when  12 it was in 1955, when I remember there was such a  13 section in the Evidence Act, whether it's there or  14 not, unless somebody tells me different, there is such  15 a section, I am prepared to treat this as a statement  16 made by the Wildlife Federation.  Or whatever it's  17 called, B. C. Wildlife Federation.  But I just have  18 some difficulty with the admissibility of the  19 document.  Why can't the witness just tell me there  20 was massive opposition from other groups who took out  21 advertisements in papers and things like that?  Why do  22 you have to -- I mean, to go beyond that, because then  23 you're getting the evidence in without having to meet  24 the difficulties of the hearsay rule.  25 MR. GRANT:  Well, of course, as I said, I say it's not a  26 question of -- the hearsay rule doesn't apply, because  27 it's not -- yes, the witness can say there were  28 massive ads taken out by other groups in opposition,  29 and I think the witness has alluded to that.  The best  30 evidence of that is the copy of the ad.  It's not the  31 truth of what's stated in the ad.  32 THE COURT:  The best evidence rule doesn't supersede the hearsay  33 evidence rule.  Different principle.  34 MR. GRANT:  Well, my lord, I am not putting this in for the  35 truth of the facts asserted therein.  I am putting it  36 in for the fact this ad was taken out and therefore I  37 say the hearsay rule doesn't apply.  38 THE COURT:  How does the fact that the ad was taken out in these  39 specific terms advance your case at all?  You can't  40 get everything in simply by saying I am not putting it  41 in for the truth of the fact stated.  I think you have  42 gone as far as you can go, by what the witness said,  43 that newspaper ads were taken out in opposition to the  44 by-law.  Now you attempt to prove this specific  45 statement was made, is clearly contrary to the hearsay  46 rule and I have an objection, seems to me I have to  47 rule. 6774  1 MR.  2 THE  3  4  5  6  7  8  9  10  11 MR.  12 THE  13 MS.  14 THE  15 MR.  16 THE  17  18  19 MR.  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  G. Williams (For Plaintiffs)  In Chief by Mr. Grant  GRANT:  Well —  COURT:  How does the specific language advance your case,  Mr. Grant, beyond the witness saying, which seems to  me to be for your purposes that there was massive  opposition.  If there was.  I don't know how -- I  gather by what the witness says there was widespread  opposition from other interested groups, sports  fishermen, trawlers, commercial fishing companies, the  government of British Columbia and all that.  You have  got that now.  GRANT:  My lord, I am not going to press the point.  COURT:  Thank you.  Is there such a section, Miss Sigurdson?  SIGURDSON:  COURT  PLANT  COURT  Yes, section 54,  GRANT:  Q  A  Q  A  Q  A  It's still there.  I withdraw that part of my objection, nunc pro tunc.  Very gracious, Mr. Plant.   Who would think that  piece of legislation would go undernoticed for 30  years?  Haven't heard of it since.  Mr. Williams, what happened after the injunction  against your fishery by-law was confirmed after the  hearing, as I understand you have said?  That is,  there was a ex parte injunction and then it was  confirmed after a full hearing, what happened next  with respect to the Gitksan fishery at Gitwangak and  the by-law?  We were unsuccessful in challenging the injunction and  we immediately had a major feast in Gitwangak during  that week, it was a Monday, I believe, that the  decision came down from, I think it was Madam  Proudfoot, and we wanted to comb through the  injunction to see the implications of the injunction  and what it meant and we had a major feast in  Gitwangak and I can't remember the exact date.  I  think it was June 28, 1986.  It was an assembly of all  the chiefs in the Gitksan and Wet'suwet'en area.  There must have been at least 300 people at that  feast.  This would have been the hereditary chiefs you are  referring to?  Yes, hereditary chiefs and individuals as well.  And  we tried to invite the Pacific Defence Alliance,  specifically Paddy Green, and also some of the other  people in the area.  I think we tried to invite Mike  Hunter.  Who is he?  He is the chairman or president of the Defence 6775  G. Williams (For Plaintiffs)  In Chief by Mr. Grant  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.  36 THE  37  3 8 MR.  39 THE  4 0 MR.  41 THE  42 THE  4 3 MR.  44  45 THE  4 6 MR.  47  Alliance, for the companies, commercial fishing  industry.  We tried to invite them to tell them, you  know, that, you know, we tried our best to try and  talk to you guys, and you guys didn't want to and now  you have got your ex parte injunction, why do that?  The river was -- nobody was allowed to fish that day,  the river, logs were floating down there and what was  the urgency of getting a ex parte injunction?  Q   When you say no one as allowed to fish the river that  day, what do you mean by that?  A   The river was really high that day and throughout that  whole week.  For about two weeks there was logs  floating down the river and nobody goes fishing at  that time.  And we wanted to let them know, you know,  what the principles I just outlined earlier, at least  they would understand, but they didn't come.  But  anyway, we presented the injunction, we noted some of  the sections of the injunction, what it meant, and  after that there was -- it was loud and clear through  all the speakers and the chiefs in that meeting that  we will not take any food fishing permits for 1986.  That was very loud and clear.  And that we have our  own legal system of how we manage the fishery, but we  had to develop strategies for the summer of how we  would defend people from being charged with contempt  of court or nets taken and that's what the decision  there was to establish one fishing camp and to protect  nets that were in the river and to protect the legal  system that we have and the laws that we have  concerning fishery.  And that was the -- and the camp  was developed on the reserve in Gitwangak for that.  Q   Where was the location, what is the name of that?  A   The location was on Highway 16 and Highway 37 and the  fishing sites name is Ankii iss.  GRANT:  Do you have a spelling for that?  COURT:  We had that yesterday.  That's the one that belongs  to your grandfather, Haluus, was it not?  GRANT:  No, it's not.  COURT:  No?  A-N-T —  GRANT:  Do you have that one?  TRANSLATOR:  It's 1168.  COURT:  How is it spelled, please?  PLANT:  It was just before the 11:30 break yesterday that  the word was referred to.  TRANSLATOR:  A-N-K-I-I, space, I-S-S.  GRANT:  Q   Who is the -- who owns that fishing site? 6776  1  A  2  THE  COURT  3  4  THE  TRANS  5  THE  COURT  6  MR.  GRANT  7  THE  COURT  8  MR.  GRANT  9  Q  10  11  12  A  13  Q  14  15  A  16  Q  17  A  18  Q  19  THE  COURT  20  21  A  22  THE  COURT  23  MR.  GRANT  24  THE  COURT  25  26  A  27  MR.  GRANT  28  Q  29  30  31  32  A  33  Q  34  A  35  Q  36  A  37  Q  38  39  A  40  41  Q  42  A  43  44  45  Q  46  A  47  G. Williams (For Plaintiffs)  In Chief by Mr. Grant  It belongs to the, I believe it belongs to the Eagles.  I was given a different spelling for it yesterday.  A-N-K-I.  Today I am given A-N-K-I-I.  jATOR:  A-N-K-I-I-I.  I recall it was Mr. Grant who spelled it yesterday.  That probably explains it.  That's right.  And this is a different site than the fishing site  that you use that belongs to your grandfather, Lelt,  is it?  That's right.  And can you -- did certain chiefs authorize the use of  this site?  Oh, yes, yes.  And did the Eagle Chiefs agree with this?  Yes.  And can you tell the court what happened --  I am sorry, Mr. Grant, where did you say again this  site was?  It's at the junction of Highway 16 and Highway 37.  16 is the --  That's the Prince Rupert-Prince George.  And 37 is the one that crossers the river at  Gitwangak and goes on to Stewart, Cassiar?  That's right.  If you were crossing the river on that bridge going  north, could you describe where you would look to see  this -- first of all, could you see this fishing site  from the bridge?  Yes, it's about 200 feet from the bridge.  Downstream or upstream?  Downstream.  And on the highway side of the river?  That's correct.  Now, was a fish camp set up at Ankii iss in the summer  of '86 after that meeting?  Yes, a big smoke house was built, a traditional smoke  house, how -- it was about 20 by 30 feet.  Who built that?  It was mainly just the people that were camped at the  site.  It was mainly by the people that camped at the  site.  About how many people stayed at this fish camp?  Between, on a regular basis, probably at least 40  people and sometimes up to 75 people that stayed 6777  G. Williams (For Plaintiffs)  In Chief by Mr. Grant  1 during or came by during the day.  2 Q   And how -- who ran the camp on the fish site, was  3 it —  4 A   It was mainly individuals that were at the camp.  5 Haluus was around most of the time, that's -- that was  6 Buddy Williams, he is a Frog Chief from Gitwangak, and  7 he was around most of the time.  I was the one that  8 kind of gave direction most of the times that we were  9 there.  10 Q   Were you present at the camp at different times?  11 A   Yes, I was.  12 Q   And was this camp set up, if I can use that term, by  13 the hereditary chiefs or by the band council?  14 A   It was set up by the hereditary chiefs, like I said  15 before, the band council has nothing to do with the  16 fishery.  17 Q   So what capacity were you present at the camp?  18 A   I was myself, I was just there by myself.  I didn't  19 want to be referred to being the title of the chief  20 councillor, I was just there as a Gitksan person.  21 Q   Now, did the fishery, did a fishery occur at this fish  22 camp in the summer of '86?  23 A   Yes, we had one net that we used and basically one  24 net, we mainly used one net that summer just to catch  25 salmon and distribute it around the community to some  26 of the elders in the community, the families that  27 needed the salmon.  And the families, other families  28 in the community that just needed the salmon, and it  29 was where we caught it and distributed it in the  30 community.  And it was also -- we also smoked the  31 salmon in the smoke house, half dried and fully dried  32 and strips and some families even came to the camp and  33 jarred their own salmon.  And other villages came,  34 from Kitwancool, that came and if they wanted salmon,  35 we would give them salmon.  And some from Hagwilget,  36 Moricetown, came, and if they wanted the salmon, we  37 would give them salmon.  And it was a good time to --  38 for people to get together and learn how to process  39 the salmon, how to smoke it properly.  40 Q   Was there any interference by fisheries officers with  41 the fishery at Ankii iss in the summer of 1986?  42 A  We had encounters on July 3rd, approximately 1  43 o'clock, we had encounters with about five fishery  44 officers came and they had an RCMP that was in an  45 unmarked car, they came and told us that they had a  46 report of an illegal net in the river, and we told  47 them that the nets are not illegal, and they insisted 677?  G. Williams (For Plaintiffs)  In Chief by Mr. Grant  1 that they wanted to go down to the river and check out  2 their illegal net and we said our nets are not illegal  3 and they tried to tell us that the Fisheries Act  4 entitles them to go down to the river and check it out  5 and we told them that we have our own laws as well as  6 with respect to the fishery that we have to uphold and  7 our nets are not illegal.  But they insisted then in  8 trying to get down to the river and we told them that  9 we have laws as well with respect to trespass and they  10 continued to insist to go down to the river and they  11 went by me and other members that were there, formed a  12 human chain and they didn't allow them, and they said  13 they will be back, and while they were leaving, all  14 the little kids in the -- and the women and the group  15 that was there, just as they were leaving, threw a  16 whole pile of marshmallows at them and they never did  17 come back after that.  18 Q   And were you or did you speak at that altercation or  19 at that time?  20 A   Yes, I was the spokesman for the group.  21 Q   Who selected you as the spokesman?  22 A   There was just everybody that was at that particular  23 site appointed me to be their spokesman.  24 MR. GRANT:  My lord, as I indicated yesterday, and I believe the  25 defendants have had an opportunity to review this  26 video.  It's not that lengthy.  It is of the incident  27 that the witness has just described and it's not a  2 8 re-enactment.  29 THE COURT:  Is there any advantage to me seeing it?  30 MR. GRANT:  Given the witness's description, I would like to  31 take a break now and think that over and consult with  32 my co-counsel on it.  It may not be necessary.  33 THE COURT:  All right.  Thank you.  34 (PROCEEDINGS ADJOURNED)  35  36  37 I hereby certify the foregoing to be a true  38 and accurate transcript of the proceedings  39 herein to the best of my skill and ability.  40  41  42  43  44 Wilf Roy  45 Official Reporter  46  47  x 6779  G. Williams (For Plaintiffs)  In chief by Mr. Grant  1 (PROCEEDINGS RECOMMENCED AFTER MORNING RECESS)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Mr. Grant.  Where is Mr. Grant?  He is missing  5 again.  You see him here, you see him there, we can't  6 find him anywhere.  7 MR. GRANT:  8 Q   Mr. Williams, you mentioned before the break that at  9 the time of July 3rd, 1986 you talked with these  10 fisheries officers about your laws.  What laws are you  11 referring to?  And here I am asking you — you have  12 given evidence about Gitksan laws, and you have also  13 given evidence about this fisheries by-law.  14 A   It was mainly our own Gitksan law.  15 Q   And how does that Gitksan law apply to the  16 circumstances that occurred on July 3rd, 1986, when  17 the fisheries officers came?  18 A  We were mainly following our own laws, the Gitksan law  19 with respect to the fishery, and the Department of  20 Fishery wanted to impose their Fishery Act on us.  21 Q   And did they -- okay.  Can you describe — you  22 indicated that the fishery officers did not return  23 after this time.  Was there any other incidents that  24 occurred at Ank'ii iss at that fish camp in the summer  25 of '86 involving fisheries officer?  26 A   Yes, there was.  27 Q   Can you explain what happened?  28 A   In August  29 MR. MACAULAY: My Lord, I have to arise to object to this  30 evidence on the grounds of relevance.  The witness now  31 quite clearly has shifted from a narrative, an  32 interesting narrative concerning the circumstances  33 under which the Fishing by-law was about to be  34 implemented and why it was.  Now the evidence is that  35 there is some sort of a contest between the fisheries  36 officers operating under the provisions of the  37 Fisheries Act and the Gitksan law concerning which we  38 have heard much evidence.  Your Lordship ruled on  39 February 12th of this year that the pleadings, the  40 Statement of Claim as it now stands does not raise the  41 issue that this evidence addresses.  I refer  42 particularly to Your Lordship's Reasons for Judgment  43 handed down on February 18th, following the  44 submissions made on the 12th, at page 7, on which Your  45 Lordship says:  46 "The Statement of Claim does not sufficiently  47 allege the 'paramountcy' of the plaintiffs' 6780  Submissions by Counsel  1  2  3  4  5  6  7  8  9  10  11 THE  12 MR.  13 THE  14 MR.  15 THE  16 MR.  17  18  19 THE  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34 MR.  35 THE  36  37  38  39  40  41 MR.  42  43  44  45  46  47  COURT  PLANT  COURT  GRANT  COURT  GRANT  COURT  GRANT  COURT  GRANT  alleged rights over federal legislation such  as that relating to fisheries and  transportation.  I do not think, in the  present state of the pleadings, that the  plaintiffs, even if entirely successful  against the Province, would be entitled to a  Judgment that would not be subject to federal  legislation relating to such matters as  fisheries, railways, airports and other  activities authorized by federal legislation."  Thank you.  Mr. Plant?  I support Mr. Macaulay's objection.  Mr. Grant?  My Lord —  What is the purpose of this evidence, Mr. Grant?  Well, it goes to the defence and provincial defence  that their latest amendment -- but also the  amendment -- just a moment, My Lord.  You see, as I understand the evidence, and counsel  may be able to correct me, because I only heard what  has been said in court and I haven't had time to read  the Fisheries Act and other relevant legislation, but  from what I gathered from what this witness has said,  this by-law was passed by the Gitwangak Band and was  not disallowed and stands as a piece of what might be  generically called municipal legislation or something  equivalent to that.  They could have rethought the  little acorn, one side or the other, presumably, would  have one, but it wouldn't make any difference to what  I have to decide as to what the rights of the parties  are.  I am not sure what the witness says -- been  talking about when he said we agreed we won't  implement the by-law.  Until June.  Until June 15th.  But it had been passed and it had  not been disallowed and it stood for whatever it  stands for.  Now, does anything that anybody does,  either in pursuance to the by-law or in contravention  of the by-law, really make any difference to the legal  questions?  Well, the provincial defendant has raised in the  latest set of amendments the issue of acquiescence,  and the federal defendant has raised issuance of  permits to Gitksan people as evidence from their  pleadings, one can only interpret, but as evidence  that the Gitksan have given up the rights of ownership  and jurisdiction which they are asserting.  The 6781  Submissions by Counsel  1 evidence of this witness as to the acts in defence of  2 those rights is, in my submission, relevant.  If it is  3 not relevant, then there is no basis for a defence of  4 acquiescence.  If one uses your own analogy, if the  5 Gitksan have the rights, it doesn't matter if they  6 took permits, it doesn't matter what they did, they  7 have those legal rights.  Well, that could very much  8 narrow some of the defences, but that certainly is not  9 the ambit of the cross-examination, and it is not the  10 ambit of the amendments made by the province.  And  11 if -- My Lord, if we are going to deal or have to face  12 that defence of acquiescence, the witnesses -- the  13 plaintiffs must be able to adduce evidence to say we  14 have not acquiesced.  We did not acquiesce in the  15 past.  We did not acquiesce today.  And the  16 circumstances surrounding the issuance of licences or  17 permits for fishing is, in my submission, My Lord,  18 relevant.  19 It's like what you said yesterday.  It's not  20 enough -- it's not fair to say, well, he got a permit.  21 That may not be the end of the question.  He got a  22 permit in fact.  Okay.  What are the circumstances  23 surrounding getting that permit?  This is an issue  24 that we haven't raised.  Its been raised by the  25 defendants, but it's an issue they are raising on  26 cross, so it's not something we can sit in the weeds  27 on and say to you at the end of the defence, can we  28 reply to it, because they may not have called any  29 evidence.  They may say, well, it's all done in the  30 cross-examination.  31 THE COURT:  Well, I would seriously doubt if any argument would  32 be addressed to me by the province, even if their plea  33 of acquiescence goes to fishing rights, based upon  34 something that happened post 1986, after the Writ was  35 issued.  It doesn't seem to me that the acquiescence  36 that the province is pleading is with relation to acts  37 as recently as post 1986.  38 MR. GRANT:  Well, you heard evidence led on cross-examination of  39 exactly that nature from the province, and I haven't  40 got the transcript --  41 THE COURT:  If I have, its been because there is no objection,  42 and it -- made as part of the avalanche of evidence  43 that I have heard.  But I am not sure, firstly,  44 whether the province is pleading acquiescence with  45 respect to fishing rights, but secondly, I doubt if  46 the province is asserting acquiescence in connection  47 with the observance or non-observance or the form of 6782  Submissions by Counsel  1 dispute of observance relating to the 1986 by-law.  I  2 suppose I should ask Mr. Plant if that's a concession  3 he can make.  4 MR. GRANT:  My Lord — but the point of it is this, is that the  5 witness's evidence is that the laws that he was  6 asserting on July 3rd, '86 was not the fisheries  7 by-law.  What it was was the Gitksan law.  And that's  8 the evidence of the witness, and that's what I submit  9 is relevant.  And the example of the acquiescence  10 raised by the province was a plethora of documents  11 relating to a tree farm licence application, or two of  12 them, by the Moricetown Band, much of which occurred  13 after the issuance of the Writ.  14 Mr. Plant yesterday said the plaintiffs, as I  15 understood him, and I don't have the transcript in  16 front of me, the plaintiffs can't rely on conduct  17 after October 22nd, 1984, but the defendants can rely  18 on the plaintiffs' conduct after December 22nd, 1984,  19 and of course he's raising an objection about all the  20 subsequent conduct, which we'll have the benefit of  21 full and frank argument at some day.  22 But what I submit, My Lord, is that the evidence  23 about the circumstances surrounding the creation of  24 this by-law, which was initially introduced by the  25 federal or provincial defendant, and the evidence  26 surrounding the assertion of rights is relevant to the  27 defence of acquiescence.  And the federal defence,  28 with all due respect, is so general that I can't say  29 that they are not going to argue acquiescence, unless  30 Mr. Macaulay can assure us of that today, because  31 their defence really is a general denial, and one may  32 say a cat's paw in the province defence in that sense,  33 and they may well raise the same issues.  So I submit  34 that this evidence is relevant and should be allowed.  35 THE COURT:  Mr. Plant, do you have a relpy to your friend's  36 point on the acquiescence?  37 MR. PLANT:  I can give a reply to this extent.  I can't at this  38 point speak as to the purpose for which the whole of  39 the evidence that we have sought to adduce during  40 cross-examination was adduced.  My understanding of  41 the reason for the Moricetown Band timber sale  42 activity was it went to an issue concerning the  43 conservation activities of the plaintiffs in their  44 alleged accordance of clear-cutting, rather than to  45 the defence of acquiescence.  I say that if we don't  46 succeed in the defence of acquiescence, on the basis  47 of the events that occurred prior to the issuance of 6783  G. Williams (for Plaintiffs)  In chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  2 0 THE COURT  21  22 MR. GRANT  2 3 THE COURT  24  25  26  27  2 8 MR. GRANT  29  30  31 THE COURT  32  33  34 MR.  35 THE  3 6 MR.  37  38  39  40  41  42  43  44  45  46  47  GRANT  COURT  GRANT  Q  A  the Writ in October, 1984, I doubt very much whether  we would succeed on the basis of the events which have  occurred subsequent to that, because it would be my  view that the issuance of the Writ is an act which  whether it occurred too late in the day or not,  finally amounts to an assertion of a claim in this  court.  So without having put that altogether clear, what I  want to say is that my view is that acquiescence is  not the issue in relation to post 1984 events, and  evidence adduced by the plaintiffs which seeks to  rebut that defence is irrelevant.  But I would hate to  make that submission fully and finally without having  had an opportunity to consider at least over the lunch  hour.  I would like very much to be able to come to  Your Lordship and say nothing that occurred after  October, 1984 is relevant to the defence of  acquiescene.  I am concerned that I can't do that yet,  without having some further opportunity for reflect.  Thank you.  Mr. Grant, have you got other things you  can go on with to take up the rest of the morning?  Yes.  I would like you to leave that subject, then, until  Mr. Plant has had a chance to make what I will hope  will be a definitive statement, and if he can't, I  think I will probably hear the evidence subject to the  obj ection.  I have other evidence with respect to the fishery,  and also other evidence -- you wish me to leave the  fishery matter?  I don't think so.  If it raises the same problem  that Mr. Grant has -- Mr. Plant has spoken about, then  no doubt I will hear from him again.  I'll broach the subject more, and hope that I --  Okay.  Mr. Williams, has -- can you advise what, if any,  other events that have occurred, and I will ask you in  the period between 1977 and 1986, what you have just  been describing with respect to the fishery and  interference with your fishery, that is with the  Gitksan fishery in Gitwangak, as a result of  activities of fisheries officers?  There have been a number of nets taken, a number of  charges for obstruction, charges for illegal fishery,  some nets were burnt, and nets being taken and not  given back. 6784  G. Williams (for Plaintiffs)  In chief by Mr. Grant  Has this happened to you personally?  Yes, it has.  Okay.  And during that same period there has been an increase  in patrols by Department of Fisheries, increase of use  of firearms, sidearms by fisheries officers, there  have been R.C.M.P. undercover along with fishery  officers.  Jet boats are now used on the river.  Helicopters and surveillance planes are now being  used.  Those are some of the -- there are a number of  charges.  What has been the impact of this on elders in your  village who fish?  It's quite an impact.  You know, some of the charges  take a long time to process through the courts.  I  know one specific elder that has gone for at least  four years through the courts to try and defend  himself, and their nets taken.  It's a real impact  when you are without a net, and they are so hard to  get.  It costs a lot of money to get a net, a net  that's suitable to the river.  Can you explain in more detail when you say it's so  hard to get a net?  How do you go about getting a net,  and what do you have to do?  We usually try and use leftover nets from the  commercial fishery and to reduce them in size.  It's  not as deep as the commercial fishery is, and they are  usually gotten from the coast, and it's almost custom  made for the area, for the fishery around the  Gitwangak area.  :  How deep a net do you use?  32 THE WITNESS:  30 mesh, I believe.  33 THE COURT:  30 mesh.  And does the length of the nets vary, depending on  where you are using it?  There is the standard size.  I believe they are about  20 fathoms, I think, the lengths that we use.  Do you know Art Matthew senior?  Yes, I do.  Has any of these types of events affected him?  Yes, it has.  Can you explain?  He was fishing at Wilson Creek.  They live there  during the fishery from about beginning of May 'til  middle of August, and that's where they do -- they  have a Smoke House there.  They do all their salmon  1  Q  2  A  3  Q  4  A  5  6  7  8  9  10  11  12  Q  13  14  A  15  16  17  18  19  20  21  22  Q  23  24  25  A  26  27  28  29  30  31 THE  COURT  34 MR.  GRANT  35  Q  36  37  A  38  39  Q  40  A  41  Q  42  A  43  Q  44  A  45  46  47 6785  1  2  3  4 MR.  PLANT  5  6  7  8 THE  COURT  9 MR.  GRANT  10  Q  11  A  12  Q  13  14  A  15  Q  16  17  A  18  Q  19  20  A  21  22  23  24  25  26  A  27  Q  28  A  29  Q  30  A  31  Q  32  A  33  Q  34  35  A  36  37  38  39  40  41  Q  42  A  43  Q  44  A  45  Q  46  A  47  Q  G. Williams (for Plaintiffs)  In chief by Mr. Grant  there, smoke and drying.  And he had an encounter one  year where early one morning a number of fishery  officers with jet boats --  :  I'm not sure if this witness was present to witness  this encounter, if we are getting this on hearsay or  if it's background to some other point that may make  it relevant and admissible.  :  Is it hearsay, Mr. Grant?  Were you present at the time?  I wasn't present.  I was just present in court.  Okay.  You were present in court and heard this  description of these events occur in court?  That's correct.  And can you tell us what was the effect of -- was his  net taken?  Yes, it was.  And what was the effect of that on Art Mathews and his  fishery in that summer?  You know, you have to scramble to try and get a net,  because he has a fairly large family.  And it's a  substantial impact, you know, making sure that the  timing is right when you take the salmon out of the  river, and it delays the processing part through the  Smoke House.  It has an impact on the family and --  Do you know Jeffrey Morgan?  Yes, I do.  And he's now deceased?  That's right.  But he was the former Axtii hiikw?  That's right.  And he -- was there any impact on his fishery by  fisheries officers' conduct?  He was forced to take a food permit -- food fishing  permit.  That's mainly because of his location, that  he's about 12 miles from the main community of  Gitwangak at Wilson Creek, and in order to save his  net he has to take a food permit, mainly just to  protect his nets.  Had he lost nets?  Yes.  Do you know Jerry Harris?  Yes, I do.  He's a younger person of your community?  Yes, he is.  Does he fish actively in the river? 6786  G. Williams (for Plaintiffs)  In chief by Mr. Grant  1  A  2  Q  3  A  4  Q  5  6  7  A  8  9  Q  10  11  THE  COURT  12  THE  WITNE  13  14  THE  COURT  15  16  MR.  GRANT  17  18  19  20  THE  COURT  21  MR.  GRANT  22  THE  COURT  23  MR.  GRANT  24  THE  COURT  25  MR.  GRANT  26  Q  27  28  A  29  30  31  Q  32  A  33  Q  34  35  36  37  38  39  40  41  42  A  43  44  45  46  47  Yes, he does.  And does he fish for elders and others?  Yes.  And did he -- was there anything that occurred  regarding his fishery that interfered with his  fishery?  His net was taken by fishery officers and was burnt at  the dump.  Can you -- you described many of the activities of  fisheries officers --  Mr. Williams, did you see that happen?  S:  No, I didn't.  I was just told about it, and I  believe there is photos of the burning happening.  What authority would a fishery officer have to burn  a net that he confiscated?  That matter is presently before this court.  There  is no authority, in my submission.  There is  absolutely not a single scintilla of authority to burn  nets, but they did it.  Or any exhibits, I suppose.  Or anything, I suppose.  All right.  There is provision for forfeitures.  That's a different matter.  That's a different matter, yes.  Were other -- were nets of other people of your  community burned at that time as well?  I believe there was one other family, Emily Daniels'  family, that was burnt at the same time as Jerry  Harris's net.  And Emily Daniels is an elder in your community?  That's right.  Can you -- you have described many incidents and the  operation of fisheries officers and the R.C.M.P.  officers with respect to the fishery at Gitwangak.  Has that activity of enforcement in the period of time  from 1977 to the present, has that activity  intensified, increased, has it stayed about the same,  or has it decreased as you were dealing with these  things such as bylaws and the petition of right and  everything else?  It's intensified.  Now they use undercover R.C.M.P.  officers.  I am aware of that.  They have used that.  And as I said earlier, there is surveillance planes  that go by early in the morning, and helicopters are  being used and jet boats, and there is more personnel  every year. 6787  G. Williams (for Plaintiffs)  In chief by Mr. Grant  Let's move to another area of evidence, Mr. Williams,  and I would like to ask you about logging on the  territory of the Gitwangak chiefs, and the impact of  this logging on the territory.  Have you observed  logging on the territories of Gitwangak chiefs?  Yes, I have.  And can you -- has this had an impact or effect on the  people, that is the chiefs of Gitwangak?  Yes, it has.  Can you explain that to the courts, what you have  observed the terms of logging, and what the impact has  been?  There is a fair bit of logging that's happening in  the -- on the back road to Hazelton.  There is a fair  bit of logging that is happening right in the  Gitwangak chiefs' territory.  There is logging that is  occurring on the -- around the Shandilla area.  That's Shandilla Creek?  That's Shandilla Creek.  Also in the Price Creek area.  There is logging activity happening in the Seven  Sisters area.  There is logging activity happening in  the Wilson Creek area and also in the Oliver Creek  area.  :  The what creek area?  25 THE WITNESS:  Oliver Creek and Flint Creek.  26 THE COURT:  I'm sorry?  27 THE WITNESS:  Flint Creek.  2 8 MR. GRANT:  29 Q   Are all of these areas that you just described within  30 the territory of Gitwangak chiefs, which are part of  31 this -- who are plaintiffs in the court action?  32 A   That's correct.  33 Q   And over what period of time -- has this logging been  34 stable or has it increased in intensity within the  35 Gitwangak chief's territory over the last, let's say,  36 ten years?  37 A   Oh, yes, it has increased.  38 Q   Okay.  What has been the impact of this logging on the  39 chiefs, and the use of the territories of the chiefs?  40 A   There's some harsh statements that are made by the  41 chiefs in respect to noticing a fair amount of logging  42 that's happening.  They use statements like lilixws,  43 and they use statements that says that, you know, we  44 are living here today on this reserve, and yet we see  45 all this logging activities that's happening around  46 us.  And what the statement says in our own language  47 is that they are slurping up our resources.  1  Q  2  3  4  5  6  A  7  Q  8  9  A  10  Q  11  12  13  A  14  15  16  17  18  Q  19  A  20  21  22  23  2 4 MR.  PLA1 67?  Submissions by Counsel  1 Q   Just one moment.  Could you just get a spelling for  2 that word.  3 THE TRANSLATOR:  L-i-1-i-x-w-s.  4 THE COURT:  I'm sorry.  Start again please.  5 THE TRANSLATOR: L-i-1-i-x-w-s.  6 THE COURT:  Thank you.  That means what?  Slurping what?  7 MR. GRANT:  8 Q   What does that mean?  9 A   It means theft.  10 Q   And you said they use a term which means like  11 slurping.  What does that phrase -- that term use --  12 A   Gildip ts'eek, the Gitksan word.  13 Q   Can you give a spelling for that?  14 THE TRANSLATOR: G-i-1-d-i-p t-s'e-e-k.  15 MR. GRANT:  E-e-k is it?  16 THE TRANSLATOR:  E-e-k.  17 MR. GRANT:  18 Q   And have the chiefs, the Gitwangak chiefs done  19 anything to respond to the logging activities within  20 their territories?  21 A   The only attempt to respond at this time was a  22 blockade that happened at Oliver Creek that I am aware  23 of.  24 Q   And were you present at the time the chiefs discussed  25 that?  2 6       A   Yes, I was.  27 Q   Can you explain what happened?  28 MR. PLANT:  Well, to refer to my notes, if I can, the time and  29 the date.  3 0 THE COURT:  Mr. Grant.  31 MR. GRANT:  32 Q   When did this happen?  33 A   This happened February of 1988.  34 Q   Can you tell us what happened?  35 MR. PLANT:  Well, again, unless it deals with some other issue  36 other than acquiescence and that question, would it  37 not be more convenient to defer hearing this evidence  38 until after the lunch break?  It seems to me to be of  39 the same category.  I may be incorrect.  40 THE COURT:  Is there a difference, Mr. Grant?  41 MR. PLANT:  Well, maybe we are on a -- I understood that the  42 dealings with the fishery -- I was following Mr.  43 Macaulay's objection that it was the question of  44 whether or not the issue of the fishery was raised.  45 That was one issue.  This issue here -- the evidence  46 here is a -- is the evidence is being led to deal with  47 the affirmation and enforcement of Gitksan law, and 6789  Submissions by Counsel  1  2 THE COURT  3  4  5  6  7  9 MR. GRANT  10 THE COURT  11  12  13  14  15  16  17  18 MR. GRANT  19  2 0 THE COURT  21 MR. GRANT  22 THE COURT  2 3 MR. GRANT  24  25  26  27  28  29  3 0 THE COURT  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  that's not --  Well, Mr. Grant, if the plaintiffs are still calling  the case at the beginning of September, as I sort of  expect they will be, any number of things could happen  over the summer between now and then, and indeed  throughout the rest of the trial.  I hope they won't,  but surely I shouldn't be hearing about all these  things, should I?  Well —  Let us take the worst possible scenario.  Serious  confrontations and allegations and cross allegations  and mutual finger pointing.  Surely I shouldn't hear  all of that.  And if not, it seems to me I shouldn't  hear what happened as recently as earlier this year.  We are here not to conduct a royal commission, we are  here to determine what the legal rights were of the  parties at the date of issuance of the Writ.  Well, My Lord, I go back to a point, which is this,  which is that the defence --  Well, you are back to the point of acquiescence.  No.  All right.  The defence raises the issue that the Gitksan, if  they had a legal system, ended long ago.  Now, if the  example that the witness gave happened in September,  1984, or if it happened in January of 1988, I submit  if the example is a demonstration of the Gitksan law,  it's irrelevant as to which date that example  occurred.  No, I don't think, with respect, that's right, Mr.  Grant, simply because for practical reasons the law  has developed a defensive mechanism to make sure that  it doesn't become burdened down with self-serving  events.  And as a matter of policy, it seems to me, I  shouldn't hear of things that happened since then,  otherwise if those matters were admissible, then  parties would go out and do all sorts of things that  would, if given in evidence, assist their case.  It seems to me that there are certain things that  happened in the course of litigation that you have,  since the issue of the Writ, that you have to hear  about.  For example, a person who is injured in a car  accident, you can hear evidence of medical treatment  and recovery up to and including the date of the  trial, but I am not sure those things don't have to be  decided on policy grounds, in order to do what's right  in an individual case.  But in a matter of this kind, 6790  Submissions by Counsel  1 a spontaneous -- what's a neutral word -- encounter  2 that the witnesses encounter can happen, and parties  3 react and counter-react and over-react usually.  But  4 surely I have to be insulated from all of that, just  5 because if parties know that the court's going to hear  6 it, then they may go out and do these things.  7 I don't know if I'm creating -- I haven't heard this  8 argued, and I'm not sure that I have read it, but my  9 instincts tell me that I ought not to be hearing  10 recent happenings, for fear that on policy grounds  11 they are self-serving.  12 MR. GRANT:  Well, the point, My Lord, as I say, is that the  13 defendants, both defendants, have relied on conduct by  14 the defendants and the plaintiffs subsequent to the  15 initial issue of this action.  In terms of the federal  16 defendant, has relied on the issuance of permits after  17 the date of the action, and the provincial defendant  18 has relied on the issuance of licences and all kinds  19 of other conduct.  And in the very nature of this  20 litigation, My Lord, I am not suggesting that  21 everything that has occurred is relevant, but in order  22 for the witness to -- the witness can explain  23 something in a general term in an abstract way, but I  24 submit it is much more cogent for you to understand,  25 if he explains it with reference to a particular  26 event, as to explaining how it operates in that  27 context.  28 I would submit that if the provincial defendants can  29 rely on the conduct of the Moricetown Bands, for  30 example, which came to my mind and sticks in my mind  31 as an example, and go on and on about these licences  32 issued and all of these other events that have  33 occurred subsequent to the issuance of the Writ, for  34 this witness to talk about what the chiefs have done,  35 whether it's before or after the event, which now we  36 are talking about three and-a-half years from the  37 initiation of the Writ, that suddenly to say, well,  38 anything that happened after October 23rd, 1984 you  39 can't hear.  Maybe this would have been, you know --  40 I'm not raising this to say a plethora of evidence.  41 We are halfway through that game or over halfway  42 through that now, but that given that the defendants  43 have done exactly that.  44 THE COURT:  Well, I don't think we should be concerned about  45 that.  If the point is a valid one, I would disregard  46 the evidence of what's happened since 1984.  Putting  47 in evidence of a licence, for example, is such a 6791  Submissions by Counsel  1 simple administrative problem, it doesn't require any  2 time or doesn't involve weighing any evidence and --  3 or doing more than accepting it as a fact, but when  4 you are talking about encounters, unilateral and  5 reactive actions and activities, well then you are  6 getting into matters where you have to lead a lot of  7 evidence.  You have got to weigh the facts.  You have  8 to reach conclusions of fact, not for the simple fact  9 that they have a permit, which is a straight foward  10 thing that isn't open to any disputes, it's only the  11 conclusions that are significant.  And if a point is  12 right, then I don't think I should be -- I should  13 take -- give any heed to the other side of the  14 questions, as you put it.  15 I am really troubled about the slippery slope that  16 you got me on now.  If we are going to start hearing  17 events of the kind you are talking about, we may not  18 be halfway through this game.  We may just be  19 starting.  Any number of things might happen between  20 now and the time that the plaintiffs close their case,  21 or even the defence closes their case, if they want me  22 to hear about it.  I don't think the law expects me to  23 hear those things.  24 MR. GRANT:  The problem is quite simply this, My Lord, is that  25 if the plaintiff -- if the defendants, the provincial  26 defendant, as this witness has already testified,  27 intensify after October of '84, for example, that he  28 has indicated over the last ten years they have  29 intensified, that there has been logging that has  30 intensified in the area and that has had an increased  31 impact, if that has occurred after October, 1984,  32 therefore the plaintiffs react, then the province --  33 the provincial defendants says well, we have issued  34 all these licences, it's all out the door.  One of  35 their defences is that issuance of licences leads to  36 extinguishment per se, and they say, but don't, don't  37 listen or hear what the plaintiffs have done about  38 that, and I submit that the reality is that neither  39 side can freeze time.  We can't freeze it that events  40 haven't occurred subsequent to October 22nd, 1984, and  41 I submit in fact that the logging within the territory  42 has been intensified since that time, and that there  43 will be evidence to show that to you, and my friends  44 will jump up and say well that's irrelevant.  45 THE COURT:  Well, why can't somebody tell me its been  46 intensified and let it go at that?  Can't we ever  47 accept anything in a simple straight forward way?  Why 6792  Submissions by Counsel  1 do I have to hear about every tree that's been cut  2 down and every reaction?  Logging was intensified and  3 if they left it at that, we probably wouldn't be  4 having this dialogue now.  5 MR. GRANT:  But that's — that's correct, the logging has been  6 intensifed, that's one point, but in the agreement  7 with respect to reserving the issue of quantification  8 of damages, the provincial defendant made it very,  9 very clear that the damages, the impact on the  10 territories of the different chiefs would have to be  11 demonstrated for you to make a ruling with respect --  12 THE COURT:  Well, damages are always at large, and what I am  13 talking about now in any way apply to that, but when  14 we are talking about this part of the case, I just  15 have a sense that I am not supposed to hear about  16 these things.  17 MR. GRANT:  Well, I am very worried about that, My Lord, because  18 that plays exactly, in my submission, into the  19 provincial defendant's approach to the case.  20 THE COURT: I don't see how.  21 MR. GRANT:  Well, it makes no difference, after 20 or 30 years  22 of clear-cutting the territory, which is the subject  23 matter of this action, as to whether or not the  24 plaintiffs in this case have a right to the trees that  25 happen to be on there, except if we are going to then  26 go into a massive compensatory scheme.  If the  27 defendants agreed not to start any new logging  28 operations, I would agree, then we could all say  29 everything stops as of October, '84, we'll just keep  30 things the way they are, but the plaintiffs are  31 reacting to what's happened subsequent to the issuance  32 of the Writ, and I submit that if the defendants can  33 raise that they have issued licences and authorized  34 logging within the territory, then that goes to the  35 issues of extinguishment, from the defendants  36 approach, from what I understand from Mr. Goldie's  37 opening at the beginning of the trial and some of the  38 authorities, then that is the plaintiffs' reaction to  39 that -- the plaintiffs' efforts to control their own  40 territories, which is the plaintiffs' claim in this  41 action is equally relevant.  But I am not -- I must --  42 I can assure you of this.  I don't see this as raising  43 a wide open -- a plethora of events.  The particular  44 incident that I am referring to is to have the witness  45 explain the operation of some of the Gitksan laws.  4 6 THE COURT:  You don't know what's going to happen in the long  47 hot summer. 6793  Submissions by Counsel  1 MR. GRANT:  I have some sense, though, My Lord -- I hope I have  2 some sense of the balance of the plaintiffs' case.  I  3 don't know what's going to happen in the summer, but  4 if I can adduce the evidence before you today of an  5 example of explaining how the Gitksan laws have been  6 operating through this witness, I see no need for me  7 to call on September 7th to ask for similar evidence  8 in the summer, because I will have established that  9 point.  That's what I am concerned about, leading that  10 evidence.  11 THE COURT:  All right.  Thank you.  Mr. Plant or Mr. Macaulay,  12 do you have anything to add to this?  13 MR. PLANT:  Well, my friend's submissions to Your Lordship  14 raises some fairly important issues that in my  15 submission are tied and arise directly out of the  16 discussion we already had this morning.  And I am  17 sorry to be so -- ask to have the matter put off.  I  18 would only say this, is that I would be happy to  19 address Your Lordship in a definitive way on this very  20 subject matter.  21 Your Lordship will recall that notwithstanding my  22 friend's persuasive estimation to the effects of --  23 that he doesn't intend to repeat himself, that we have  24 now heard two witnesses testify about the Wilson Creek  25 blockade.  Mr. Mathews junior gave evidence on that  26 subject.  There has been evidence about the Oliver  27 Creek incident, as I recall, if it's the same one I am  28 thinking of, Mr. Williams, who was examined on  29 commission, gave extensive evidence about blockades  30 and similar unlawful activity occurring after the  31 issuance of the Writ.  I would be happy to find a way  32 to try and excise that evidence with whatever  33 consequences it may have for my defence, but I can't  34 do that right now.  35 THE COURT:  All right.  Thank you.  Mr. Macaulay?  36 MR. MACAULAY: My Lord, we do not object to evidence of —  37 relevant evidence of things that have happened since  38 the commencement of the action.  We may submit at the  39 end that it's significant that those events occurred  40 during the course of the action, but not before.  41 That's an argument that is open to us.  It may be a  42 practical problem about reviewing every confrontation  43 and incident on logging roads or on the river, but I  44 can't think of any principle, other than the very  45 general that Your Lordship drew our attention to,  46 which is really basic on public policy and the orderly  47 administration of justice would exclude that evidence, 6794  Submissions by Counsel  1 and there may be greater harm done in excluding it in  2 the long run.  3 We have had an awful lot of evidence in this trial  4 that might not have been admitted by the trial judge  5 sitting in an ordinary trial regarding ordinary issues  6 of the kinds we usually deal with in court.  They may  7 be perceived as -- the plaintiffs are unduly fettered  8 by being confined to events that occurred --  9 THE COURT:  Thank you, Mr. Macaulay.  I am going to give — I'm  10 not going to expropriate counsel's lunch hour, but I  11 am going to give counsel an opportunity to look at the  12 authorities, if they want, and I will deal with this  13 matter at 2 o'clock.  If counsel don't have anything  14 significant further to submit on this question, I want  15 to think about it myself and -- but we have to get on  16 with the trial, and counsel can spend their lunch hour  17 and forty minutes as they may be advised.  18  19  2 0 (PROCEEDINGS ADJOURNED FOR THE LUNCHEON RECESS  21 AT 12:20 P.M.)  22  23 I HEREBY CERTIFY THE FOREGOING TO  2 4 BE A TRUE AND ACCURATE TRANSCRIPT  25 OF THE PROCEEDINGS HEREIN TO THE  26 BEST OF MY SKILL AND ABILITY.  27  28  2 9 LORI OXLEY  30 OFFICIAL REPORTER  31 UNITED REPORTING SERVICE LTD.  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 6795  Submissions by Counsel  1 (PROCEEDINGS RESUMED AT 2 O'CLOCK P.M.)  2 THE REGISTRAR:  Delgamuukw versus Her Majesty the Queen, at bar,  3 my lord.  4 THE COURT:  Anything further?  5 MR. PLANT:  I am prepared to address your lordship.  6 I have three points, the first is that paragraph 39  7 (b) of the -- what will eventually become the further,  8 further amended statement of defence, that is to say  9 the amendment that was recently granted by your  10 lordship, is confined to acts occurring prior to the  11 commencement of this action, because the amendment  12 deals with the delay in bringing such an action.  Once  13 the action is commenced, subsequent events have no  14 bearing on that defence.  That disposes of my friend's  15 argument in support of the admissability of some  16 evidence on the basis that it was responsive to our  17 laches and acquiescence defence, but it may not  18 dispose of the issue of relevance altogether.  19 Paragraphs 58, 62 and 63 of the statement of claim  20 should be referred to in this context.  Paragraph 58  21 is the allegation that the plaintiffs continue to own  22 and exercise jurisdiction over the territory.  23 THE COURT:  All right.  I am sorry, I am going to have to  24 adjourn just for a moment, please.  25  2 6        (PROCEEDINGS ADJOURNED AND RESUMED FOLLOWING RECESS)  27  28 THE COURT:  Sorry, Mr. Plant.  Go ahead, please.  29 MR. PLANT:  The first point, my lord, being that paragraph 39(b)  30 does not assist the plaintiffs.  31 There are three paragraphs in the statement of  32 claim that allege, where the plaintiffs allege  33 continuing ownership and jurisdiction over the lands  34 and the resources which are the subject matter of the  35 action.  36 Rightly or wrongly, it's been our construction of  37 those pleadings that they are directed to asking your  38 lordship at the end of the day to make a declaration  39 that as of that time the plaintiffs have those, the  40 rights that are alleged.  And our defence has been  41 responsive to that, to those allegations, both in  42 terms of the pleadings and in terms of the evidence  43 that we have adduced.  So, in practical terms, we have  44 understood that the plaintiffs are saying that they  45 are doing things now which support their allegation  46 that they continue to own and exercise jurisdiction  47 over the territory and it's open to us to lead 6796  Submission by Mr. Plant  1 evidence which rebuts those assertions.  2 If the plaintiffs' case, if we have construed the  3 plaintiffs' case incorrectly, if their case is  4 directed at asking your lordship to declare that as of  5 October 23rd, 1984, they had rights, then what flows,  6 what has happened after October 23rd, '84, in my  7 submission, comes under the heading of consequences  8 and cannot be relevant in support of the assertion of  9 rights existing or not existing.  10 So, in effect, it's -- I am saying that the ball is  11 really in my friend's court on that.  If my friend  12 says, we are asking you for a declaration that as of  13 October 23, 1984, the plaintiffs owned and exercised  14 jurisdiction over the territory, then I would argue  15 that a great deal of evidence that's being heard at  16 trial is irrelevant and if that has the effect of  17 throwing out evidence that we have sought to lead by  18 way of cross-examination, then we are happy to live  19 with those consequences or the consequences in those  20 terms.  But, I can't, at the moment, I am really  21 governed by our view of the pleadings on that point.  22 The third point which may be more responsive to  23 your lordship's concerns, the question of statements  24 made after commencement of an action, and I have not  25 had an opportunity to review the law in any detail  26 over the lunch break, but in Phipson's text there is,  27 in paragraph 24-39, under the -- in the chapter  28 Statements By Deceased Persons under the heading  29 Declarations As To Public Or General Rights, there is  30 the following statement:  "Declarations made in direct  31 support of a claim contemplated to be brought by the  32 declarant or otherwise obviously to subserve his own  33 interest will be rejected but if no dispute has arisen  34 or claim being contemplated the fact that the  35 declarations tend to support his own title or the  36 declarant stood or believed he stood in pari juri with  37 the party relying on them, affects their weight only  38 and not their admissibility."  39 Now, I have sometimes heard it said that you can  40 find support in Phipson for any proposition of the law  41 of evidence that you want to make.  But it does seem  42 to me that there is, at least, at the very least, a  43 question of weight when we have evidence in the form  44 of statements by this witness or activity by this  45 witness, after the commencement of the action, which  46 is really just intending to -- intended to support the  47 claim already made.  I cannot at this point, though, 6797  Submission by Mr. Macaulay  1 say that it goes beyond weight to a question of  2 admissibility in the terms that your lordship was  3 describing before the lunch adjournment.  4 THE COURT:  Thank you.  Mr. Macaulay?  5 MR. MACAULAY:  My lord, the only article and authority I have  6 been able to locate in the short time available, it's  7 Sopinka and Lederman.  8 THE COURT:  That's reasonably authoritative now.  9 MR. MACAULAY:  Yes.  That's right.  Well-known authors, my lord.  10 In which the general proposition is stated as  11 follows:  "There is a general exclusionary rule  12 against the admission of self-serving evidence,  13 although contradictory statements may be used against  14 a statement, 'you are not entitled to give evidence of  15 statements on other occasions by the witness in  16 confirmation of testimony.'"  Then the author goes on  17 to examine that proposition in various circumstances  18 and comes to the conclusion that that rule should not  19 be extended to conduct, although a very early English  20 case involving a gift or an alleged gift, seems to be  21 authority for the contrary, an English case of 1818.  22 In the case at bar, leaving aside entirely for the  23 moment the question of relevance, that is whether it's  24 relevant on the pleadings or not, when this witness  25 gave evidence that he confronted fisheries officers,  26 and asserted his law, that might be interpreted as a  27 conduct or an act rather than a statement.  But if the  28 witness went on to say, this is what I said to him, I  29 said A, I said B and I said C, that would be self-  30 serving and would offend against the rule.  31 I am just trying to apply what the authors of this  32 learned work have to say about self-serving evidence  33 to a particular piece of evidence that this witness  34 has just given.  Perhaps that's the best, as close as  35 we can come to a satisfactory solution to this  36 problem.  37 THE COURT:  Thank you.  38 Mr. Grant, I think I am going to allow you to call  39 the evidence, subject to the objection.  I am almost  40 convinced, but not quite, that it is not admissible,  41 and I think in the middle of a trial, we have to get  42 on with it.  43 I don't want to pre-judge anything, I am going to  44 allow this evidence to be adduced because the witness  45 is here and he is in the box, and I think we should  46 err on the side of admissibility.  It's always been my  47 policy, that is not to err, but if to err, err on the 679?  G. Williams (For Plaintiffs)  In Chief by Mr. Grant  1 side of admissibility.  But if other things happen  2 during the course of the summer, I give you fair  3 warning that I think I will follow my instincts on  4 that and say that I am not going to pre-judge that  5 blindly, but that is my present position.  You may  6 call this evidence subject to Mr. Plant's objection,  7 but if somebody raises the subject as to the what the  8 evidence is, that is before the court.  9 Thank you.  10 MR. GRANT:  Thank you.  11  12 EXAMINATION IN CHIEF BY MR. GRANT:   (Continued)  13  14 MR. GRANT:  15 Q   Mr. Williams you were talking about the impact of  16 logging on the territories of the Gitwangak chiefs,  17 could you or have you observed whether that logging  18 has, the logging activities on the Gitwangak chiefs'  19 territories has, since 1984, has been stable, that is,  20 gone on at about the same rate, has decreased or has  21 increased since the commencement of this court action?  22 A   Logging activity has increased.  23 Q   And can you give examples of where it has increased,  24 where it has commenced since 1984 that it wasn't going  25 on before?  26 A   There is logging activity happening at Oliver Creek,  27 logging activity happening in the Clint Creek area,  28 logging activity happening in the Wilson Creek area,  29 and logging activity happening in the back road to  30 Hazelton from Gitwangak.  31 Q   Has all that logging that you have just referred to  32 happened since or commenced since 1984 in those areas?  33 A   That's correct.  34 Q   Now, whose territory is Oliver Creek on?  35 A   That's Luulak's.  36 Q   Now, can you describe what happened with respect to  37 Luulak's territory and the logging that occurred  38 there?  You commenced to explain that something  39 occurred in February of this year, and if you could  40 advise the court of your involvement or the basis of  41 your knowledge of it?  42 A   I was approached on the morning of -- I can't remember  43 the exact day, in February, I was informed by Stanley  44 Williams that there was logging activity happening  45 adjacent to Highway 16 near Oliver Creek and he told  46 me about the logging that was happening there, and I  47 then called Mr. Ryan, Don Ryan at the Tribal Council, 6799  1  2  3  4  5  Q  6  A  7  Q  8  A  9  10  11  12  13  THE  COURT  14  A  15  THE  COURT  16  A  17  18  19  20  21  22  23  24  THE  COURT  25  26  MR.  GRANT  27  28  29  THE  COURT  30  MR.  GRANT  31  32  33  THE  COURT  34  35  36  37  MR.  GRANT  38  THE  COURT  39  40  MR.  GRANT  41  42  THE  COURT  43  44  45  46  47  G. Williams (For Plaintiffs)  In Chief by Mr. Grant  we -- he immediately came down that afternoon and we  went and visited the site and we then agreed that we  would have a meeting that evening.  The chiefs of the  Gitwangak were at that meeting that evening.  Where was that?  That was at the community hall.  In Gitwangak?  In Gitwangak.  And Stanley Williams presented the  information that said there was logging that was  happening, meanwhile this court case was continuing,  and it was undermining the chiefs' ownership of the  land.  :  Sorry, what year are we talking about?  1988, February, 1988.  :  Thank you.  It was undermining the chiefs' ownership and authority  over their territory and the province was taking the  strong position that if you don't stand up to your  territory, you have lost your rights.  And that was  explained to people and they immediately stated that  there would be no more logging and that logging at  Oliver Creek should stop.  I made my position very  clear at that meeting that the band council has no --  :  I shouldn't be hearing all this, Mr. Grant, should  I, about what somebody said to somebody else?  :  Well, the witness is only explaining what -- I think  this goes to the relationship of the chiefs and the  band council, my lord, what he just saying right now.  :  Well what head of admissibility does it fall under?  :  Well, the witness is just about to say what he, his  position was, that is his involvement, I asked him  what his involvement was --  :  Surely the most I can hear is what happened.  Surely  not what they said to each other.  This is totally in  the absence of the other parties to the litigation.  It's the clearest kind of hearsay.  :   This witness can be cross-examined on this.  :  Mr. Grant, that's an exploded theory of the  admissability rule.  :  I am talking about what this witness said.  I will  ask him what his involvement was, my lord, if I can.  :  You can't get both side of the conversation in and  say what they said to each other in the absence of  other parties.  That's a common misunderstanding at  the bar of what -- a witness can only say what he said  to somebody, and the most outrageous circumstances.  But we don't have that here.  But surely you can tell 6800  G. Williams (For Plaintiffs)  In Chief by Mr. Grant  1 me what happened but I don't have to hear what  2 everybody said to everybody.  3 MR. GRANT:  I think what the witness said what his involvement  4 was and maybe I will phrase it up --  5 THE COURT:  He wants to tell me what his position is.  Surely I  6 ought not to be hearing that.  I ought to be hearing  7 what happened.  I will rephrase the question.  Thank you.  8 MR.  9 THE  10 MR.  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37 THE  38  39 THE  4 0 THE  41 THE  42 THE  43 THE  44  45  4 6 THE  4 7 MR.  GRANT  COURT  GRANT  Q  A  Q  A  Q  A  Can you explain what your role or your involvement was  in this?  This was when you were chief councillor,  wasn't it?  Yes.  Can you explain what your role was and why you were  involved in that?  I was asked to helped out and I just helped, just  helped in organizing the -- what the chiefs had  wanted.  And what did you do and what happened?  I went with them the next very morning to the site on  the logging road and I was with other members of the  band and notices were made out that -- and we did go  down there early that morning and blocked off the  access road to the site and gave the loggers the  notices that what the chief said, and they were not  allowed to enter that site.  Were hereditary chiefs there as well?  Yes, they were.  Could you say who else was there with you that  morning, which hereditary chiefs?  There was Dax jok, that's Darlene Morgan; Allan  Johnson, who is T'ewelasxw, Ksaux, and I can't  remember all of them.  There was a few there.  Just a moment.  Can you just get those three names,  Dax jok, T'ewelasxw and Ksaux?  Just the numbers would be sufficient, if you have  them.  TRANSLATOR: I just spelled them out.  COURT:  You did?  TRANSLATOR:  Yes.  COURT:  You don't have the numbers?  TRANSLATOR: No.  D-A-X, space, J-O-K,  and T'ewelasxw is T  apostrophe, E-W-E-L-A-S-X-W and Ksaux is K-S-A-U-X, is  number 63.  COURT:  Thank you.  GRANT:  Q  A  Q  A  COURT: 6801  1  Q  2  3  A  4  5  Q  6  A  7  Q  8  A  9  Q  10  A  11  12  13  14  15 MR.  PLANT  16  A  17  18  19 MR.  GRANT  20  Q  21  22  A  23  Q  24  A  25  26  Q  27  28  A  29  30  31  32  33  34  35  Q  36  A  37  38  39  40  41  42  43  44  45  46  47  G. Williams (For Plaintiffs)  In Chief by Mr. Grant  Now, what were the notices that the chiefs arranged to  give to the loggers, what did the notices state?  The notices state to stop logging on that particular  territory and to remove all their equipment.  Was there a time limit on those notices?  The first notice there was no time limit on it.  And do you recall what day that was?  I can't recall exactly what day it was.  And what happened next there?  There was other, the first loggers were subcontractors  that came and got the notice, then the contractor came  and they were given notices, and then Bell Pole came  out, who had owned the timber sale came out and  talked, and they were also given notices as well.  :  Bill Pole?  Bell Pole. And later that day the RCMP came around  and checked out what was happening. They were also  informed.  And did the chiefs and yourself stay there all that  day?  Stayed there all that day.  And what happened next?  That evening, there was another meeting at the  community hall and there was a report made there,  Was there decisions made there as to what to do the  next day?  Yes, there was.  There was a notice given to remove  the equipment by a certain time, there was a deadline  put on the notice to remove the equipment at a  particular time, and I can't remember exactly what the  time is.  And the instructions from the chiefs were  that if the notice, or if the equipment wasn't removed  it would be seized.  Was that set out in the notice?  That was set out in the notices.  The time had lapsed  on that, and the deadline was passed, and notices were  made that the equipment was to be seized.  And the  arrangements were made to try to get a lowbed to  remove the equipment, we were unable to secure a  lowbed, and Friday, I am sure it was Friday, at 1  o'clock, the final notice was not honoured by the  subcontractors and the equipment was seized, a 966  loader was then taken to another reserve and notices  were properly put on a log skidder and a trailer that  was on the site.  There was also a notice given not to  remove any of the logs that were on the site, as we 6802  1  2  3  4  Q  5  6  A  7  Q  8  A  9  10  MR.  GRANT  11  THE  TRANS  12  MR.  GRANT  13  Q  14  15  16  A  17  Q  18  A  19  Q  20  MR.  PLANT  21  22  MR.  GRANT  23  Q  24  A  25  Q  26  A  27  Q  28  A  29  Q  30  31  A  32  Q  33  34  A  35  Q  36  37  A  38  39  Q  40  41  A  42  Q  43  A  44  THE  COURT  45  MR.  GRANT  46  Q  47  G. Williams (For Plaintiffs)  In Chief by Mr. Grant  are getting close to one of the reserves belonging to  the band, the RCMP came and they seized the loader at  that time.  And were charges laid as a result of this incident  against any of the Gitksan chiefs?  Yes, there was.  Who was that?  Peter Turley, who is an Eagle, and his name is  Giila'wa.  :  Do you have a number for Giila'wa?  uATOR:   Number 9.  And you had indicated earlier these events and this  Oliver Creek was in Luulak's Territory, was Luulak  involved at all in these events?  Yes.  Was she present?  She was present I believe for three days.  And that is Sandra Williams.  :  I thought the witness said "he" was involved.  I may  have misheard the witness' evidence.  Who is Luulak?  Luulak is Sandra Williams.  And you had mentioned Dax jok, is that Darlene Morgan?  That's correct.  Was she a member of Luulak's house?  That's correct.  And Luulak is a member of or is in the same house as  Lelt?  That's correct.  Aside from Luulak, were other hereditary chiefs there  on each of the subsequent days after the first day?  Yes, there was.  Can you just say some of those that you recall that  were there?  Allan Johnson, Ray Morgan, there were other chiefs  from Kispiox that were there, Peter Turley was there.  Did logging resume at Oliver Creek after these three  days?  Yes, it did.  Has logging recommenced there now?  I believe they are finished now.  :  Where is Oliver Creek, please?  Can you describe Oliver Creek in relation to Gitwangak  Village? 6803  1  A  2  3  Q  4  5  A  6  Q  7  8  9  A  10  11 THE  COURT  12 MR.  GRANT  13  Q  14  15  16  A  17  Q  18  19  A  20  Q  21  22  23  A  24  Q  25  A  26  Q  27  28  A  29  Q  30  31  A  32  Q  33  34  A  35  Q  36  A  37  Q  38  39  40  41  42  43  A  44  Q  45  46  A  47  Q  G. Williams (For Plaintiffs)  In Chief by Mr. Grant  It's approximately 35 miles midway between Gitwangak  and Terrace, on Highway 16.  And is it -- is it within the territories claimed by  the plaintiffs?  Yes, it is.  It's right near the boundary.  Maybe I will just refer you to here and you can just  indicate by pointing approximately where Oliver Creek  is on Exhibit 5.  This is Big Oliver and this is Little Oliver and this  is where exactly where the logging was happening.  :  Thank you.  I would like to ask you about the Seven Sisters, you  alluded to the Seven Sisters that there was logging  going on there or proposed for there?  Yes.  And which of the chiefs was involved or concerned  about the logging activities at Seven Sisters?  Wii Hlengwax and Haalus.  And did either of those chiefs approach you with  respect to their concerns and their ideas on how to  resolve it?  Yes, both of them.  And when would that have been, approximately?  In January of 1985.  Did anything -- has logging commenced on the Seven  Sisters?  Yes, there has.  And how is Wii Hlengwax and Haalus, were they doing  anything to prevent that logging?  I can't remember exactly.  I can't recall it.  Now the Haalus who approached you would that have been  Buddy Williams?  Yes, that's right.  And he passed away in September of 1976?  That's right.  I am sorry, '86 .  I'd like to refer you to the document at tab 14  entitled a 1981 education report.  It's a submission  to the Board of School Trustees, School District 88  dated September, 1981.  Are you familiar with that  document?  Yes, I am.  And were you involved in the authoring of this  document?  Yes, I was.  Can you explain to the court why this document was 6804  G. Williams (For Plaintiffs)  In Chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10 MR.  11 THE  12 MR.  13  14  15  16 THE  17  18 MR.  19  2 0 THE  21 MR.  22  23  24  25  26  27  28  29  30  31 MR.  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  prepared to School District 88?  A   School District 88 wanted to review the Gitksan  language programme that was in the Gitwangak  Elementary School and we wanted to have some input in  that review process.  And out of that this document  was prepared for that and presented to School District  88.  Q   Now, the introduction refers to the history of  education or the education of the Gitksan people --  PLANT:  I object to any reference to this document, my lord.  COURT:  What's it about, Mr. Grant?  GRANT:  It's a submission prepared by this witness to the  school board relating to education and I was just  going to lead into the educational questions with  respect to Gitwangak with reference to the document.  COURT:  Under what head of admissibility do you find  comfort?  GRANT:  I would submit that it's a document prepared by this  witness himself and --  COURT:  Well, that doesn't get you very far.  GRANT:  I mean, the -- I would submit that it is not hearsay  because of that, this witness can be cross-examined on  it.  Mind you, I concur that it may well be my friends  may object on the basis of their position that it is  self-serving.  There is some recommendations made in  the document, to which I wish to refer the witness, in  other words, this was a proposal put to the school  district, I want to ask the witness what, if anything,  has happened with respect to those those proposals.  This was prepared seven years ago.  PLANT:  And fortunately I had disclosure to me yesterday, so  I could spend three hours yesterday evening reading  this 50, 60 page document.  The document at tab 15,  maybe not 15 but another nice one at tab 17, I have  never seen until yesterday, and another long document  at tab 18, another long document at tab 19, another  long document at tab 20.  Pages and pages of  delightful information, most of which I was able to  read last night but I can tell you that with respect  to tab 14, my lord, I was unable to read the part  commencing Native Rights and Self Determinations, an  address by the Honourable Mr. Justice Thomas R. Berger  of the Supreme Court of British Columbia, to the Upper  Skeena Counselling and Legal Assistance Society, which  occupies the last 23 pages of this document.  I did  not have time to read that.  So I am not in a position  intelligently to respond to it.  But I am not seeking 6805  it in  G. Williams (For Plaintiffs)  In Chief by Mr. Grant  1 to be unnecessarily obstreperous.  If my friend had  2 produced this document to me six months ago, and I had  3 had an opportunity to read it, I may well have  4 admitted it.  But in the circumstances, particularly  5 given some of the statements that are made, and in the  6 first page or two, which I was able to read, I can't  7 admit it, I can't accept the admissibility of this  8 document.  So I am driven to object to it.  9 THE COURT:  Well, Mr. Grant, if Mr. Williams had written a text  10 on Gitksan land claims, you couldn't introduce  11 chief, could you?  12 MR. GRANT:  Well, no, and I just want to clarify a couple of  13 points.  Number one is that I have no problem with  14 excising any of these appendices, including the  15 document my friend referred to.  That's not the point.  16 But to be more precise, the only point of this  17 document that I wish to lead to the witness, is pages  18 14 through 16, which deals with recommendations.  But  19 if I gave an excised portion of a document, I was  20 afraid that I would be faced with some objection  21 there.  There were recommendations made, the  22 recommendations are listed.  It's not a question of  23 what --  24 THE COURT:  But what are these recommendations, the opinions of  25 the witness?  26 MR. GRANT:  The recommendations are proposals to improve the  27 education of Gitksan children, which is part of the  28 evidence, my lord, of the continuing efforts to  29 utilize the existing systems that are in place now to  30 advance the position of the Gitksan to the extent  31 possible.  And I want to ask the witness as to the --  32 whether or not those were successful or whether they  33 were followed or any of those, that type of question.  34 That's what the point of the document is.  35 THE COURT:  You see, what I -- I am not sure but I have the view  36 that, the preliminary view, that what we are doing is  37 just getting inundated with documents that are  38 probably inadmissible when the evidence could be given  39 vive voce, probably quite quickly and quite  40 expeditiously.  If the witness has knowledge of  41 circumstances in the community, and has a solution to  42 the problems, subject to possible objections on expert  43 or opinion evidence, I think the underlying facts  44 would probably be admissible and wouldn't take long.  45 But when you ask me to receive and you ask your  46 friends to agree to receive a lengthy document, with  47 all kinds of information in it, what am I supposed to 6806  G. Williams (For Plaintiffs)  In Chief by Mr. Grant  1 do with all that information?  Screen it and decide  2 what I can regard as being the evidence of the witness  3 or -- and then what comes from other people, or what  4 is opinion evidence and what isn't?  I just don't know  5 what's in this document.  That's not evidence.  That's  6 the trouble.  7 MR. GRANT:  I am not concerned, my lord that this document  8 itself go in as an exhibit.  I wish to refer the  9 witness to some of the facts with respect to Gitwangak  10 in 1981, seven years ago, I would refer him to the  11 document with reference to those facts and with  12 respect to the recommendations which are a couple of  13 pages.  14 THE COURT:  At the moment, as presently advised, I see no  15 difficulty in the witness giving me evidence of  16 matters of which he has personal knowledge relating to  17 circumstances in Gitwangak in 1981.  I see no  18 difficulty in that.  Whether it's going to be useful  19 or relevant at a later stage isn't my concern now.  I  20 think it probably would be admissible.  It's the  21 documents that are getting me into all that trouble  22 that -- I am having my trouble seeing my way through  23 that all.  24 MR. GRANT:  Well, it's a relief, my lord, because I — I have  25 been facing many documents as well.  I don't wish the  26 court inundated with them.  27 THE COURT:  I appreciate, of course, there is a difference  28 between evidence in chief and cross-examination.  That  29 applies to both sides of the case depending on who  30 happens to be calling evidence at any particular time.  31 But -- and I am only dealing now with the  32 admissibility of documents that this witness wrote or  33 participated in and which you are tendering and that's  34 generally regarded as admissible, as an admissibility  35 no-no.  36 MR. GRANT:  The only point, I would like to be able to use the  37 document with respect to the facts the witness knows  38 to refresh his memory.  39 THE COURT:  What are you referring to?  40 MR. GRANT:  I am referring to page 11, which talks about the  41 dropout rate of the Gitwangak Indian Band at that  42 time.  43 THE COURT:  Well, if he has knowledge of what the dropout rate  44 is and can state it, I think that it may well be  45 admissible.  I have in mind those wide-sweeping words  46 of Chief Justice Dickson in Cuker and Manuel, and  47 rather committed to applying that law.  But are we 6807  G. Williams (For Plaintiffs)  In Chief by Mr. Grant  1  2  MR.  GRANT  3  4  THE  COURT  5  6  7  8  MR.  GRANT  9  THE  COURT  10  MR.  GRANT  11  Q  12  13  14  A  15  Q  16  A  17  Q  18  THE  COURT  19  A  20  THE  COURT  21  22  A  23  THE  COURT  24  A  25  THE  COURT  26  27  28  29  A  30  THE  COURT  31  MR.  GRANT  32  Q  33  A  34  Q  35  A  36  Q  37  THE  COURT  38  A  39  MR.  GRANT  40  Q  41  42  43  A  44  Q  45  46  47  A  looking at page 11?  Page 11.  Under local data, the third paragraph,  which is one sentence long.  Well, you see, there is the problem.  You could have  asked him that question and we wouldn't have had all  that trouble.  If you hadn't gotten mixed up on the  documents.  I am not pressing on the documents.  Go ahead.  Did you, in 1981, at the time you were involved in  preparing this document, did you analyze what the  dropout rate was for Gitwangak at that time?  Yes, we did.  What was it?  It was 80 percent.  And did you --  :  That's at what level?  That's at grade 12, highschool level.  :  That's 80 percent of all the students who were  enrolled in the school during --  That's the native students.  :  Native students in the school?  That never completed grade 12.  :  So if a student enrolled in grade eight and left  halfway through, he would be given the same weight in  this calculation as a student who dropped out in the  middle of grade 12?  Hm-hmm.  :  Yes.  But there was 80 percent of the band members?  That's correct.  And they had not completed grade 12?  That's right.  Now --  :  That's grade eight to 12, is it?  Yes.  Now, in -- were you involved in preparing  recommendations to School District 88 with respect to  proposals to improve education for Gitksan children?  Yes, I was.  And I just ask you to look at pages 14 at the bottom,  under recommendations, page 15 and page 16 and 17.  Does that contain the recommendations that were made?  Yes, it was. 680?  1  Q  2  3  MR.  PLANT  4  MR.  GRANT  5  Q  6  7  A  8  Q  9  10  A  11  12  13  14  THE  COURT  15  A  16  MR.  GRANT  17  18  19  20  21  22  23  24  25  26  27  28  29  30  A  31  Q  32  A  33  Q  34  35  A  36  Q  37  38  39  40  41  42  A  43  Q  44  A  45  46  47  MR.  GRANT  G. Williams (For Plaintiffs)  In Chief by Mr. Grant  Now, you have had a chance to review these  recommendations before giving evidence today?  :  He wrote them. Oh, I am sorry.  You have had a chance to review these recommendations  again before you gave evidence today?  Yes.  And have any of these recommendations been followed,  or been adopted by School District 88 since 1981?  The only one that has been discussed in the last month  or two, was on page 15, item number (c).  And they  have a budget of approximately $50,000 to hire a  Director of Indian education.  :  What's that, one teacher for one year?  That is a staff member.  :  A director tore of Indian Education.   That  recommendation, my lord, states that "The School  District 88 appoint a director of Indian Education  within the Department of Native Studies for the  purpose of supervising material for the district,  complete with the manpower and other resources to  accomplish this task and one full-time native student  studies co-ordinator to be situated in the Gitwangak  and Hazelton area."  It appears that recommendation is for two persons,  Director of Indian Education and a Native Studies  Co-ordinator.  Has that recommendation been followed  or considered with respect to both or just one of  those positions?  Just the one.  The director of native education?  That's correct.  And other than that none of the other recommendations  have been followed up on by the school district?  That's correct.  And is the -- did that, the failure of the school  district to follow up on those recommendations, have  anything to do with the decisions that you and the  other people in Gitwangak made, including the  hereditary chiefs, concerning the establishment of  your own school?  Yes, it did.  Can you elaborate on that, please?  There is no improvement in the elementary/high school  in the Gitwangak Valley and that's why we took over  grades one to three back in the community in 1987.  :   Now, my lord, solely for the purposes of brevity 6809  G. Williams (For Plaintiffs)  In Chief by Mr. Grant  1 and as the witness referred to these recommendations,  2 I would ask that the title page and the  3 recommendations, and I will arrange for a copy to be  4 made, starting at the bottom of page 14, 15, 16 and  5 17, that that be marked as an exhibit.  And I will  6 excise the balance of the document.  Rather than  7 reading through all of the recommendations and asking  8 him if each of them was adopted individually.  He has  9 explained about them, seems to me to put it in  10 context.  11 THE COURT:  Mr. Plant?  12 MR. PLANT:  No objection, my lord.  13 MR. MACAULAY:  No objection, my lord.  14 THE COURT:  All right.  Title page and pages 13 —  15 THE REGISTRAR:  14 to 17.  16 THE COURT:  Don't the recommendations start —  17 MR. GRANT:  The bottom of page 14.  18  19 (EXHIBIT 576:  DOCUMENT ENTITLED SUBMISSION TO BOARD  20 OF SCHOOL TRUSTEES SCHOOL DISTRICT NUMBER 88, TERRACE  21 DATED SEPTEMBER, 1981)  22  23 THE COURT:  Sorry, I am -- the recommendations -- I see, at the  24 bottom not at the top.  Pages 14 to 17.  25 THE REGISTRAR:  Exhibit 576, my lord, tab 14.  2 6 THE COURT:  All right.  2 7 MR. GRANT:  28 Q   Now, I would just like to ask you if you know of an  29 organization called the Gitksan-Wet'suwet'en Education  30 Society?  31 A   Yes, I do.  32 Q   And have you been involved in some of the programmes  33 of the Gitksan-Wet'suwet'en Education Society?  34 A   Yes, I have.  35 Q   And have they been involved in educating Gitksan and  36 Wet'suwet'en people in particular areas?  37 A   Yes, they have.  38 Q   Can you explain the areas of training that they have  39 had?  40 A   The initial one was the Native Indian Teacher Training  41 Programme, the Fishery Technician Training Programme,  42 the Forestry Technician Training Programme, and the  43 Drug and Alcohol Addictions Programme.  44 Q   And when was the Teacher Training programme,  45 approximately?  46 A   It was approximately started in 1982, I believe.  47 Q   And where was that training, where did that take 6810  G. Williams (For Plaintiffs)  In Chief by Mr. Grant  1  2  A  3  4  5  Q  6  7  A  8  Q  9  A  10  11  Q  12  THE  COURT  13  14  MR.  GRANT  15  Q  16  17  A  18  19  Q  20  21  A  22  Q  23  A  24  Q  25  A  26  27  28  29  30  Q  31  32  33  A  34  Q  35  36  THE  COURT  37  MR.  GRANT  38  THE  COURT  39  A  40  41  MR.  GRANT  42  Q  43  A  44  45  Q  46  47  A  place?  That took place in Hazelton and with some studies  taking place in Victoria at the University of  Victoria.  Were teachers -- have qualified teachers graduated  from that programme?  Yes, there have.  About how many students were in that programme?  The initial student numbers were approximately 22  students.  And why was that programme initiated?  I am sorry, 22 were enrolled, I think the question  was how many graduated?  Yes, I didn't follow up on that.  You said the initial numbers were 22, do you recall  how many graduated?  I am pretty sure there was around eight, eight  graduate.  Are they presently teaching in schools inside the area  or outside the area?  Most of them are within the area.  That's within the Gitksan-Wet'suwet'en?  That's correct.  Why that was programme initiated?  It was mainly to try and get in -- increase the number  of native Indian teachers and to try and establish a  local training programme that would be in the  community and to have some cultural content of Gitksan  -Wet'suwet'en in the course.  Now, I think the second programme that you referred to  that this Gitksan-Wet'suwet'en Education Society was  involved in was the Fisheries Technician Programme?  That's right.  About how many people were involved in that and when  was that programme started?  Is this forestry or fish?  Fisheries.  Thank you.  There must have been at least 15 students in that  programme.  How long was that programme for?  I believe that was for approximately a year, a one-  year programme.  And what was the purpose of training fisheries  technicians?  The purpose was mainly to look at the habitat and 6811  G. Williams (For Plaintiffs)  In Chief by Mr. Grant  1 document some of the habitat to learn a bit more about  2 fish biology, and to take care of the fishery source  3 and at least have some fish technicians for the  4 hereditary chiefs.  That was the long-term plan on  5 that.  6 Q   Were persons that were members of Gitwangak involved  7 in that programme with students, do you recall?  8 A   No, I don't believe so.  9 Q   I think the next programme you referred to was the  10 Forest Technician Programme?  11 A   Yes.  12 Q   And when was that programme initiated?  13 A   That programme was initiated in October of 1987 and  14 has about 20 students that are in the programme.  15 Q   And why was that programme commenced?  16 A   It was similar to the Fishery Technician Programme, it  17 was mainly to learn about the forestry, learn about  18 the trees, the silviculture programmes, and to  19 document some of the management plans, and again it  20 was mainly to develop our own people with the  21 long-term plan that if we had the ownership and  22 jurisdiction of the chiefs, there would be technicians  23 available to undertake forestry activities.  24 Q   Is that programme still going on now, are there  25 students still in that programme now?  26 A   Yes, it is.  It's a two year programme.  27 Q   Was there a drug and alcohol counsellors' programme  28 set up by the education society?  29 A   Yes, there was.  It was mainly for -- in preparation  30 for the Wilp Sisatxw Treatment Centre, which was again  31 to get our own people involved and preparing to  32 counsel and have staff members available when the  33 treatment centre opened.  34 Q   Is there any connection between these training  35 programmes set up by the education society and the  36 action of the chiefs, that is, the claims of the  37 chiefs in this case, with respect to the territory?  38 A  As I said, with the fishery and with the forestry and  39 a lot of the -- the curriculum of these programmes,  40 incorporate the philosophies and values of the Gitksan  41 and Wet'suwet'en people and it's to prepare for when  42 the chiefs have full authority and ownership of their  43 territories, there would be these technical people  44 available to assist in management and controls of that  45 whole territory.  46 Q   Now, I would just like to ask you briefly about the  47 Gitksan laws, the Gitksan legal system which many 6812  G. Williams (For Plaintiffs)  In Chief by Mr. Grant  1 other witnesses have given extensive evidence about,  2 can you explain from what you have been taught by your  3 grantfather and others, as to who would, under the  4 Gitksan laws, have authority over the territory, let  5 us say, the territory of a particular house?  6 A   It's mainly the head chiefs in that house and that  7 house itself that has authority over that territory.  8 Q   And is there a Gitksan term or phrase that your  9 grandfather would use in explaining that authority  10 over the territory?  11 A   Dax gyet.  12 MR. GRANT:  Do you have a number for that?  13 THE TRANSLATOR:  664.  14 THE COURT:  Thank you.  15 MR. GRANT:  Thank you.  16 THE COURT:  How do you spell it, please?  Did you have —  17 THE TRANSLATOR: D-A-X, underlined, G-Y-E-T.  18 MR. PLANT:  Excuse me for interrupting, but is the grandfather  19 being spoken of here as the instructor Fred Johnson,  20 Chief Lelt, who has testified on commission in this  21 case?  22 MR. GRANT:  23 Q   I referred to your grandfather, you meant Fred  24 Johnson?  25 A   That's correct.  26 Q   And when there is a feast being held, who has the  27 authority over how the feast is conducted and what  28 happens in the feast ultimately?  29 A   The authority is within that particular house group,  30 that is, the main host of that feast, and is mainly  31 the hereditary chief of that house is the major  32 decision-maker along with his house members.  They are  33 the ones that are in main control of the feast.  34 Q   And how -- well, let me ask you this:  Does the  35 authority of that house chief in the feast hall,  36 connect to the authority of the chief on the  37 territory?  38 A   Yes, it does.  39 Q   Can you explain how?  40 A  What the chief is doing, that house group, the chief  41 in that feast, what he is doing is demonstrating  42 publicly in that feast to the other chiefs that he has  43 invited in the feast hall, that he has laws that he  44 has to follow for that particular feast and that he is  45 demonstrating publicly that he has land, that he has  46 fishing holes and that he has power and that he has  47 wealth and that he owns the land and these are my 6813  G. Williams (For Plaintiffs)  In Chief by Mr. Grant  1 other members of my house, immediate house.  That's  2 what he is doing.  He is publicly telling all the  3 people in that feast hall, that this is who I am, I am  4 a chief, I am a high chief, and this is my authority.  5 MR. GRANT:  And would that apply to any Gitksan house at any  6 Gitksan feast what you have just described?  7 A   That's correct.  8 THE COURT: All right.  Take the afternoon adjournment, please.  9  10       (Afternoon adjournment taken)  11  12  13  14  15 I hereby certify the foregoing to be  16 a true and accurate transcript of the  17 proceedings herein to the best of my  18 skill and ability.  19  20  21  22  23  24 Wilf Roy  25 Official Reporter  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 6814  G. Williams (for Plaintiffs)  In chief by Mr. Grant  1 (PROCEEDINGS RECOMMENCED AFTER RECESS)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Mr. Grant.  5 MR. GRANT:  6 Q   Mr. Williams, I asked you before the break, you were  7 talking about the relationship between the chiefs'  8 authority, that is the house chiefs' authority and  9 feast hall and his authority over his territory.  I  10 would like to ask you another aspect, again focusing  11 on the feast and another part of your evidence, which  12 does the Gitksan feast have any connection to  13 education of the Gitksan?  14 A   Yes, it does.  15 Q   Can you explain that connection?  16 A   The feast, when it's held, is an educational process  17 in itself, whereby how the different chiefs are seated  18 according to their rank.  That's an educational  19 process.  The identity that you have to know the ranks  20 of different chiefs and how they sit is educational.  21 The procedures that happen at a feast is an  22 educational process.  The different types of the --  23 how the business is proceeded is an educational  24 process.  The names given at the feast is an  25 educational process.  How it is given and who  26 christens individuals is a process of education.  And  27 different statements that are made at the feast are  28 philosophies of the chiefs, and it's based on our  29 value system.  That's educational.  And when you sit  30 at a table, I explained a bit earlier the private  31 discussions, that's educational.  And the other part  32 of it is that the land ownership, the different areas  33 that the particular chief owns, who is the host,  34 that's educational.  And the verification of the high  35 chiefs at the end of the feast, whether they agree or  36 disagree with the statements and the business that's  37 conducted is an educational process.  38 Q   Would you see yourself at this stage in your life and  39 at this stage as a chief in Malii's House as a student  40 in that educational process in the feast hall, or as a  41 teacher, or both?  42 A   I'm still learning.  I'm still being educated.  And  43 whatever I have learnt, I pass it on to the people in  44 my generation and my nephew and my children.  45 Q   You have referred to the fact that within the feast  46 hall one of the things that is taught is the  47 philosophies of the chiefs and the value systems of 6815  G. Williams (for Plaintiffs)  In chief by Mr. Grant  1 the chiefs, which you referred to and described the  2 other day.  You also referred to the value systems of  3 the Gitksan as being part of the programme of the  4 training for the fish technicians and the forestry  5 technicians.  Are those part of the same value systems  6 that you are talking about?  7 A   Yes, it is.  8 Q   And can you explain what part of that value system is  9 being taught in the -- or was taught in the fisheries  10 technician and the forestries industries technician  11 programme?  12 A  A lot of it is on habitat, you know.  What you hear is  13 you can't walk on where fish eggs are laid, you know,  14 you can't even walk on it.  How to clean out streams,  15 where there is trees in the stream.  How to take care  16 of the salmon and respect the salmon.  Don't play  17 around with the salmon.  Don't make fun of it.  Don't  18 laugh at it, and always return the eggs back into the  19 river.  Those are some of the values.  And ensure that  20 the salmon is protected for future generations.  21 Q   And what about in the forestry field?  22 A   Basically the same.  Again, don't destroy the land  23 because the basic philosophy is that we have to take  24 care of the land now, to ensure that future  25 generations that we pass on land to will have some --  26 will have the land in the future.  27 Q   I would like to return again in this arm of evidence  28 to the feast, and does the -- in the feast system is  29 there -- is it connected to the laws of the Gitksan?  30 Now, just to be clear, you have described how some of  31 the laws of the feast hall were, as have other  32 witnesses, but you also described the July, '86  33 incident, that you were upholding the laws with the  34 fisheries officers.  Are those laws that arise out of  35 the feast system, or is there connection between the  36 feast system and those Gitksan laws?  37 A   Yes, there is.  38 Q   And can you explain that connection?  39 A   The feast is mainly demonstrating who has ownership to  40 particular territories, who has access to those  41 territories or the fishing sites, and there are  42 certain laws that -- regarding access, regarding use  43 of the territories or the sites, and who has a right  44 to be on there, and who is an authority over it.  45 Q   Okay.  Do the chiefs have a method or have a way to  46 enforce their laws today?  47 A   They are very limited of how they can enforce their 6816  G. Williams (for Plaintiffs)  In chief by Mr. Grant  1 laws, particularly the only area that I see in being  2 able to enforce is the usage of fishing sites.  They  3 are very restricted to their own enforcement in that  4 area.  And also on the land, that I can't just go and  5 use or you can't just go and use somebody else's  6 territory to go and hunt, and they'll -- they will,  7 you know, disagree with that and tell you that, you  8 know, you shouldn't be here.  9 Q   Have you been involved at the time that you have been  10 the chief councillor or with the chiefs in trying to  11 improve methods of enforcement of the Gitksan laws?  12 A   Yes, I have.  13 Q   Can you explain to the court when that occurred and  14 what has gone on to improve the ability of the chiefs  15 to enforce their own laws?  16 A   Basically its stemmed from the community, where we had  17 a number of domestic concerns in the community, and in  18 order to address those properly there was an  19 enforcement that we needed.  The option that was  20 available to that was to develop our own policing  21 programme.  We discussed that in December of 1987.  22 That concept was agreed to.  We did discuss it again  23 in February of 1988, and that we presented to the  24 chiefs that -- how far do you want to take the  25 policing programme, and should we narrow it down just  26 to the reserves alone, and who should have the  27 authority over it.  They endorsed the concept that it  28 should be the territory of the Gitwangak chiefs from  2 9 Legate Creek to Andimaul, and that's the -- and the  30 authority came from the hereditary chiefs of that  31 community, and not to limit it to domestic concerns,  32 but to develop our own fishery officers and our own  33 game wardens under the authority of the hereditary  34 chiefs.  35 Q   Have you had a policing programme in effect developed  36 by your community since last December?  37 A   No, we haven't.  38 Q   Have you had any -- do you have any policing within  39 your community, aside from the R.C.M.P. visits to the  4 0 community?  41 A   Yes, we do.  42 Q   Can you explain what you do have?  43 A  What we have is a used ex-police car that we bought at  44 an auction.  It was an ex-Delta police car that we  45 bought.  We bought some lights, police lights that are  46 on top of the car.  We bought -- we have equipped it  47 with a radio telephone and also a radio scanner, and 6817  1  2  3  Q  4  A  5  Q  6  7  8  A  9  10  11  12  Q  13  14  A  15  16  17  Q  18  19  20  21  22  23  24  25  A  26  27  Q  28  A  29  30  31  32  33  34  Q  35  A  36  37  Q  38  39  A  40  41  Q  42  43  44  A  45  46  Q  47  A  G. Williams (for Plaintiffs)  In chief by Mr. Grant  we have three volunteers that volunteer, mainly on  weekends, to police the community.  How long has that programme been going on?  Since December of 1987.  And has that had any -- what were the problems within  the community that you were trying to resolve with  that policing?  Well, mainly the R.C.M.P. in Hazelton was quite --  takes some time to respond to calls in the community,  and sometimes they don't come, and that's why we  wanted to develop our own police force.  And what kind of problems does your own police force  deal with within the community?  They deal with domestic disputes, family matters,  patrol the village roads and investigate minor  problems.  Can you give some other examples?  You have said  domestic disputes.  What other kinds of — maybe I  could just refer you to Tab 21 and just, if you could,  indicate there.  There is a breakdown of the kinds of  reports or offences that were reported to the police,  and if you look under the section under A, under B,  under C and under D, what kinds of matters does your  own local police deal with now?  Drinking and driving is one of the areas that they  deal with.  How do they deal with that?  Mainly if people are drinking and driving, they stop  them and their keys are taken away and they are taken  home.  That's one area that -- and assaults.  It's  mainly going into a home where there is domestic  disputes happening there, and talking to individuals  and seeing whether they could resolve the problems.  Are they involved in preventing vandalism?  Just by patroling in the community, the vandalism  doesn't -- its been reduced.  And has the impaired driving -- has it had any impact  on the impaired driving?  It has greatly reduced the drinking and driving.  Its  greatly reduced the drinking and driving that happens.  Now, have you been involved in the development of  expanding this police programme to the Legate Creek,  Andimaul area?  Just looking at developing the 16 week training  programme.  What does that training programme --  The training programme consists of physical training, 681?  1  2  3  4  5  Q  6  7  8  9  A  10  Q  11  12  13  A  14  Q  15  A  16  17  Q  18  A  19  Q  20  21  22  23  A  24  Q  25  A  26  27  28  29  30  31  32  33  34  35  36  37  38  39  Q  40  41  42  A  43  Q  44  45  46  47  G. Williams (for Plaintiffs)  In chief by Mr. Grant  how to counsel individuals on domestic disputes, how  to deal with drinking and driving, and how to use  firearms properly, and how to write reports, and  administrative procedures.  In the fishery by-law, exhibit 575 I believe, there  was reference to the appointment of fisheries  officers.  Would this training programme include the  training of persons to administer the fisheries?  Yes.  When you were involved in the -- when the Oliver Creek  incident occurred with respect to the logging, was  your volunteer police officers involved in that?  Yes, they were.  What was their involvement there?  It was mainly to -- mainly there to keep the peace,  talk to the R.C.M.P.  That was mainly their role.  And were they successful in that function?  Yes, they were.  I would like to again just return to the feast and go  to another area, and that is, does the feast of the  Gitksan have anything to do with the economics, the  economic system of the Gitksan?  Yes, it does.  And can you explain that?  It's a redistribution of the wealth.  Certain  individuals are commissioned, like your — from your  father's side are commissioned to undertake certain  tasks, and whatever wealth that you have is  transferred or given over to your father's side.  That's -- and whatever money or gifts that you have  got in, that is given back to your father's side.  And  also the food that you bring to the feast is given out  to all the other guests in the feast hall.  There is  usually more than enough food that is given out,  redistributed, and at the end there is money that is  given out as well to the high ranking chiefs and to  your father's side or whoever you have asked to do  certain things for that main house group.  When you say food is given out, is there a surplus of  food that is more than people can eat in the feast  itself?  Oh, yes, there is lots of food that is given out.  And other witnesses have testified about the feast and  that there is -- for example, food is brought in and  kept at the door and then distributed.  Is there a  name for that accumulation of the food and the goods  that are brought in and accumulated at the door? 6819  1  A  2  Q  3  A  4  5  6  7  G. Williams (for Plaintiffs)  In chief by Mr. Grant  It's called Ligii will.  And what does that mean?  It means all the gifts and all the food that is in  your possession, and what it represents is the wealth  of a particular house.  The more food you have, it  indicates the wealth of that particular chief in that  house group.  8 THE COURT:  I didn't get that wording.  9 MR. GRANT:  I'll just ask Miss Howard for it.  10 THE TRANSLATOR: L-i-g-i-i w-i-1-1.  11 MR. GRANT:  12 Q   I just want to -- again talk about the economics, and  13 in relation to the feasts and the economics I would  14 like to divert for a moment.  You indicated you were  15 the band social worker for a time for the Gitwangak  16 band.  When did you first see social assistance apply  17 to your community?  18 A   The first time was when my father was -- got hurt  19 in -- I think it was around 1967 my father got hurt  20 and he had to go to Hazelton to the Indian Affairs  21 Department.  22 Q How did he get hurt?  23 A He cut his hand with a chain-saw.  24 Q This was while he was working?  25 A While he was working.  And he had no other means of  26 income, and he went to Hazelton and got a social  27 assistance cheque, but I was unaware of that.  But  28 later on my mother told me how they just snuck around,  2 9 not to be seen, and he didn't want anybody to know  30 about it, because it was a terrible meaning in our  31 language.  It means that -- we have a word for it  32 called Giintxw.  33 MR. GRANT:  Do you have that word?  34 THE TRANSLATOR:  G-i-i-n-t-x-w.  35 MR. GRANT:  36 Q   What does that word mean?  How would you translate it  37 literally?  38 A   That means when you are able bodied and healthy, that  39 somebody just takes a spoon and hand feeds your mouth.  4 0           That's what it means.  41 Q So it's a shameful term?  42 A That's right.  43 Q Is that shame of social assistance still felt today?  44 A To some extent, but not that much any more.  45 Q Is the economic redistribution in the feasts that you  46 referred to, is that comparable to this term Giintxw  47 or social assistance, or is it something quite 6820  G. Williams (for Plaintiffs)  In chief by Mr. Grant  1 different?  2 A   It's quite different.  3 Q   Can you explain how it's viewed differently?  4 A  We always used to live off the land.  All the food and  5 all the activity came from the land, and you ensured  6 that you prepared berries, you prepared moose meat,  7 bear meat, salmon, you did all these things, and  8 planned out the amount of food that you have and to  9 survive all winter.  And for some individuals that's  10 not been done any more, it's mainly through the  11 dependence on the social assistance programme.  12 Q   You described how the resources from the land are  13 used.  If you or Malii gives money and food to another  14 chief in the feast hall, how is that different than  15 when the Department of Indian affairs gives some  16 member of your community a social assistance cheque?  17 What do you see as the difference?  18 A   You are depending on another form.  You are depending  19 on the government and the Department of Indian Affairs  20 to -- you are relying on their budgets, and you are  21 relying on their policies of how they give out money,  22 and the social assistance programme.  They are relying  23 on another form of government to have the money  24 available for you.  25 Q   If you give out money in the feast hall to another  26 chief, does that other chief at some stage -- is it a  27 reciprocal relationship, or does it only go one way?  28 A   I don't really —  29 Q   When I say reciprocal, does that other chief at some  30 stage also distribute money to you and to others at  31 another --  32 A   Yes, he does.  33 Q   Within the Gitksan laws, as you understand them, are  34 Gitksan chiefs restricted to distributing only food  35 and money at the feast hall, or could they distribute  36 other things?  37 A   They could distribute other things if they want.  38 Q   Do you see that as a possibility in the future?  39 A   Oh, yes, they distribute -- I have seen where they  40 have distributed guns that are worth a thousand  41 dollars, TV's, they have distributed that.  More  42 expensive items that are distributed now.  I can see  43 in the future that we have the rightful economic  44 benefits from our territories, it could get bigger and  45 more valuable as we gain the economic benefit from our  46 territories and redistribute that in the feast system.  47 Q   Would that -- can you see, if that occurs, would 6821  G. Williams (for Plaintiffs)  In chief by Mr. Grant  1 social assistance and these fundings from the  2 Department of Indian Affairs be necessary still?  3 A   No, they wouldn't be.  4 MR. GRANT:  My Lord, I just wanted to comment on one point.  I  5 have put into the document book other documents  6 relating to what has been referred to in evidence as  7 devolution.  In view of the comments made by Mr. Plant  8 this morning and the comments by Your Lordship, it is  9 my view that it's not necessarily relevant, and I  10 don't intend to examine the witness in chief on this.  11 If it's -- I may take a position, if it's raised on  12 cross-examination, and of course I just want to raise  13 this now, rather than getting into this in an area  14 that I now see is constrained, as it's something  15 entirely new that happened after October of '84, I, of  16 course, would reserve my right to raise — to deal  17 with it on redirect, if my friends decide to raise it  18 and the court rules that they can introduce this  19 evidence.  And I wish to say it now, because, of  20 course, if you just look at the index of the document  21 book, it's apparent it's not something that is  22 hasn't come to my attention.  23 THE COURT:  All right.  24 MR. GRANT:  Subject to that, I wondered if I could have the  25 liberty of an early recess today.  I don't anticipate  26 there would be anything more, but I would like to  27 review my notes.  2 8 THE COURT:  I don't see any reason why we shouldn't adjourn a  29 few minutes early.  30 MR. GRANT:  And I will be asking the clerk to excise the  31 documents.  I will refer to that with the clerk.  32 THE COURT:  All right.  Mr. Williams, just one thing I wanted to  33 ask you.  You say there is a 80 percent drop-out rate.  34 Do you know what the rate is province wide or in any  35 other non-Indian jurisdiction?  36 THE WITNESS:  No, I don't know offhand.  37 THE COURT:  All right.  All right.  We'll adjourn then until 10  38 o'clock tomorrow morning.  Thank you.  39 THE REGISTRAR:  Order in court.  This court will adjourn 'til 10  40 a.m.  41  42 (PROCEEDINGS ADJOURNED AT 3:50 P.M.)  43  44  45  46  47 6822  Proceedings  1  2  3 I HEREBY CERTIFY THE FOREGOING TO  4 BE A TRUE AND ACCURATE TRANSCRIPT  5 OF THE PROCEEDINGS HEREIN TO THE  6 BEST OF MY SKILL AND ABILITY.  7  8  9 LORI OXLEY  10 OFFICIAL REPORTER  11 UNITED REPORTING SERVICE LTD.  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

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