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[Proceedings of the Supreme Court of British Columbia 1988-09-21] British Columbia. Supreme Court Sep 21, 1988

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 8037  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 Vancouver, B.C.  2 September 21, 1988  3  4 (PROCEEDINGS RECONVENED AT 10:00 a.m.)  5  6 THE REGISTRAR:  Order in court.  In the Supreme Court of British  7 Columbia, this Wednesday the 21st day of September,  8 1988.  The matter of the Delgamuukw versus Her Majesty  9 the Queen continuing, my lord.  10 Mr. Sterritt, may I remind you, you are still  11 under oath.  12 THE WITNESS:  Yes.  13 THE COURT:  Thank you.  Mr. Goldie.  14  15 CROSS-EXAMINATION BY MR. GOLDIE (cont'd):  16 Q   Mr. Sterritt, yesterday -- and I'm now referring to  17 the transcript of yesterday -- I was asking you about  18 the external boundaries of the map attached to the  19 statement of claim as amended in April of 1985.  That,  20 my lord, is, I believe, overlay map three.  21 THE COURT:  Yes.  22 MR. GOLDIE:  23 Q   And at page 8029, line 18, I asked this question:  24  25 Q  "You think that in April of 1985 you had  26 already begun to have doubts about the  27 northern boundaries?"  28  29 And that's the northern external boundaries.  30  31 A  "I'm not sure just exactly when it was in  32 there.  I would have to look at my notes  33 as to when we were reviewing -- beginning  34 to review some of the information.  But  35 it was not long after that or -- I don't  36 exactly recall the timing."  37  38 And then I later asked at line 41:  39  40 Q  "So that as of April 1985, nothing had  41 occurred to make you question the  42 inclusion of Geel's territory?"  43  44 Now that was the April '85.  And then on the next page  45 after Mr. Sterritt had said that he began a review in  46 1986, question, line three:  47 303?  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 Q  "But that request, as you say, didn't  2 come until December 1986.  In 1985 you  3 believed that to be, as I say, an  4 accurate depiction of the external  5 boundary?  6 A Well, I can't exactly recall my state of  7 mind at the time.  As I recall, I don't  8 know exactly in that period when -- and  9 it would be reflected in my notes -- that  10 information is beginning to come  11 forward."  12  13 And then I said:  14  15 MR. GOLDIE:  "Well, perhaps you can consult your  16 notes tonight, and I will put those  17 questions to you tomorrow morning."  18  19 Have you had an opportunity of consulting your notes,  20 Mr. Sterritt?  21 A   Yes, I have.  22 Q   And what is your comment with respect to the accuracy  23 of the external boundaries of the map attached to the  24 statement of claim as amended in April of 1985?  25 A   In 1984, I believe it was in November, I was -- I had  26 a conversation with my uncle where he indicated that  27 there was a tree with markings like Chinese or like --  28 well my word would be hieroglyphics, but like Chinese  29 on it.  And I asked him -- or I tried to determine  30 approximately where that was, and he indicated that it  31 was a certain distance north of their -- of their  32 camp.  I'm not sure whether it was then that I  33 established or tried to establish how far north or  34 whether it was later, but I think something to the  35 extent of a day's walk north of their main camp.  That  36 would be on spring snow.  So that was my only entry at  37 that time.  38 Subsequent to that, the information that I  39 obtained was from Martha Haimadim, H-A-I-M-A-D-I-M,  40 also known as Martha Sinclair.  And Martha who was the  41 daughter of Peter Haimadim and from the House of Geel,  42 that's G-E-E-L, had been raised in the Kluatantan  43 area, that's K-L-U-A-T-A-N-T-A-N, had indicated in  44 the -- if I remember right, it was in the fall of 1985  45 that -- that the extent of the Haimadim territory was  46 not as we had it on the map.  She didn't say in those  47 words, but I was asking her what the basis was for the 8039  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 territory in that area and for Geel's territory as  2 well.  3 And then in September of 1986, I went on the field  4 trip with Walter Blackwater and we flew along --  5 indicated where the -- pointed in a direction to his  6 right where the boundary of Kliiyem lax haa was, or  7 the northern boundary of the Gitksan, and that was  8 short of the head of the Nass River, far short.  It  9 was not far from Panorama -- the Panorama area,  10 Panorama Creek, Panorama Lake.  11 And then in 1988, I pursued that in more detail,  12 and at that time Walter quite independent of the  13 information that my Uncle Percy Sterritt had provided  14 to me, also mentioned that --  15 THE COURT:  Sorry, who was this?  16 THE WITNESS:  My uncle, Percy Sterritt.  17 THE COURT:  All right, thank you.  18 A  Also mentioned that he and Sam Hope had been  19 travelling up the Nass and came upon the same tree.  20 So in terms of the map of 1985, the only information I  21 had was from my uncle, it needed to have -- it needed  22 a lot more work.  I didn't have -- and also -- I also  23 talked to Martha Brown, but I think that was possibly  24 in '86.  I talked to Martha and she indicated in  25 relation to a place called Dim Geiss Hanii Jok,  26 that's -- pardon me.  I'll spell that first, D-I-M  27 space.  2 8 THE COURT:  Sorry?  29 THE WITNESS:  I'll spell it first.  3 0 THE COURT:  Yes.  31 THE WITNESS:  D-I-M space.  32 THE COURT:  Sorry, T-I-M?  33 THE WITNESS:  D-I-M.  34 THE COURT:  Thank you.  35 A   Space G-E-I-S-S space H-A-N-I-I space J-O-K.  She  36 mentioned in relation to Wii Luu Skihl an Malgwa,  37 W-I-L space L-U-U space S-K-I-H-L space A-N space  38 M-A-L-G-W-A, that the — that they did not go far  39 beyond the mountains north of Wii Luu Skihl an Malgwa,  40 that's the word I just spelled.  And so in order to --  41 in order to reflect the proper boundary, it was a  42 matter of discussing it with those houses.  It wasn't  43 a matter of as soon as I had a first entry that I  44 should proceed and adjust the boundary.  And I did  45 discuss it with the House of Geel, with Walter Harris,  46 I discussed it with Martha, I discussed it with both  47 David and Walter, Walter Blackwater, and I discussed 8040  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 it with David Gunanoot, and it was subsequent to that  2 that we made those adjustments.  3 Q   Do you remember the question I asked you?  4 A  Well, can you rephrase it please?  5 Q   Yes.  6 A   Or state it again?  7 Q   I am going to rephrase it.  As at the time of the  8 amendment of the statement of claim in 1985, was the  9 map annexed to it accurate to the best of your  10 knowledge at that time?  11 A   I had information at that time that -- as a matter of  12 fact, I probably, when I went into the review,  13 probably came up with it, and so if I had completely  14 reviewed all my notes at that moment, I might have had  15 a bit of a question about the northern boundary, but I  16 had to do more work on it.  17 So I think the word "accurate", I think I've  18 described this boundary previously in terms of that  19 the hereditary chiefs, it reflected partly the work  20 that was done in 1977, it reflected the perception  21 that the boundaries went right to the head of the  22 Skeena, and that was a general identification.  I  23 think the word -- the use of the word "accurate", we  24 had done the job to the best of our ability at that  25 time but I wouldn't want to use the word "accurate".  26 Q   I'm speaking of your state of mind at that time, not  27 with the benefit of hindsight.  April of 1985, did you  28 believe the map that was attached to the statement of  29 claim which was amended at that time, to be accurate?  30 A   For a map to be accurate, the -- we would have had to  31 have done very detailed work all the way along it.  It  32 was one of the reasons that we were reviewing the  33 information.  I wouldn't want to state that the map  34 was necessarily accurate.  It was a job to the best of  35 our ability at the time.  36 Q   I didn't ask you to say whether it was accurate, I  37 said, did you believe it at that time to be accurate?  38 A  At that time I believed it to be a fair representation  39 of the territories of the Gitksan.  40 Q   A fair representation meaning approximation?  41 A   Yes.  Let me put it this way:  Our attitude in 1977  42 when we first did that large -- that first external  43 boundary of the territory, the attitude of the  44 hereditary chiefs and the approach that I felt that I  45 should be taking, was that we should do the best we  46 could, given the information we had at the time, to  47 draw a boundary, and that it should not be based on 8041  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 simply a -- a line or an area that would encompass the  2 entire of North Western B.C. so as to be sure that we  3 had our territories in it.  The task for us was to try  4 to -- the task for us was to try to have the best  5 representation possible.  When we did that we knew  6 that there was further work needed.  7 And the other point is that we always -- the  8 hereditary chiefs knew their territories, knew their  9 boundaries, the job was to get that information to the  10 researchers, which included me.  If in the process of  11 doing that we defined a boundary or an area that was  12 inside -- within our territory or outside, then those  13 adjustments had to be made.  In other words, if it  14 meant less land for the Gitksan, so be it.  If it  15 meant that the boundary went out, so be it.  If a  16 neighbouring nation came to us --  17 Q   Excuse me, Mr. Sterritt.  18 A   I would like to continue, Mr. Goldie.  19 Q   No, just a moment, because you are not addressing the  20 question I asked you.  21 A   I think I am.  22 Q   I beg your pardon.  I am addressing your state of mind  23 at the time.  24 A   But I'm trying to explain to you how the state of mind  25 that I had in 1977 reflected the things that we were  26 doing through 1980, '81, '82, '85, '86, '87 and 1988.  27 Q   The question I directed to you was the state of your  28 mind in April of 1985?  29 A   I think that I can explain that by explaining how we  30 approached the task in the years leading up to then.  31 Q   Well, you will be given an opportunity to discuss  32 that, but my question is, what was your state of mind  33 with respect to the accuracy of the map attached to  34 the statement of claim in April of 1985?  35 A  Well, you are trying to use the word accurate.  36 Q   I'm talking about your state of mind, not the actual  37 accuracy of the map.  Do you understand that?  38 A   Yes, I understand that.  39 Q   Your belief —  40 A  What was your question?  41 Q   All right.  Now, what was your belief with respect to  42 the accuracy, not whether the map was accurate, your  43 belief as to its accuracy in April of 1985?  That's my  44 very simple question.  45 A  My belief in 1985 was that the external boundaries of  46 the territory reflected as closely as possible at the  47 time, the information -- based on the information we 3042  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 had, the external boundaries of the Gitksan-  2 Wet'suwet'en territories.  3 MR. GOLDIE:  Thank you.  4 MR. RUSH:  Now, my lord, if Mr. Sterritt has any information  5 that pertains to that question that precedes 1985 as  6 he has indicated, perhaps he should be allowed to give  7 that.  8 THE COURT:  Well, he was really describing a process that was  9 underway which I don't think is necessary for the  10 answer that he has now given.  I think if you want him  11 to continue that approach, I think that that would be  12 a matter for re-examination.  13 MR. GOLDIE:  I was under the impression that the process had  14 been described in the examination-in-chief, and I  15 was --  16 THE COURT:  Oh yes, it was, in various ways.  Perhaps not quite  17 as comprehensive as the witness was embarked upon.  18 MR. GOLDIE:  Yes.  19 THE COURT:  But counsel can come back to that if they wish.  20 MR. GOLDIE:  Yes.  21 MR. RUSH:  Yes, my lord.  I only rose on this issue because Mr.  22 Sterritt apparently had in his mind that there were  23 considerations affecting his state of mind prior to  24 1985 that may bear on the question as posed by Mr.  25 Goldie.  26 THE COURT:  I don't think there is any doubt what the witness'  27 evidence was.  28 MR. GOLDIE:  29 Q   Mr. Sterritt, when did you compile the book of notes  30 which has now been marked as Exhibit 721 in this  31 proceeding?  32 MR. RUSH:  I think you should place it before him.  33 MR. GOLDIE:  34 Q   Well, that's fine.  35 A   I think when I sat down -- when I basically stopped  36 carrying out -- or functioning full time as a  37 president of the tribal council and devoted myself to  38 virtually full time on pulling all these notes  39 together.  I would -- whether I did this in 19 -- in  40 December of 1986 or whether it was on into 1987, I  41 can't be certain.  It was sometime in the period after  42 December of 1986.  43 Q   I think you may have misunderstood my question.  My  44 question was:  When did you put together the selection  45 from all of your notes which was presented to the  46 court as Exhibit 721, when did you make that  47 particular selection for the use in the court? 3043  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 A   You mean the exhibit?  2 Q   Yes?  3 MR. RUSH:  Well, my lord, I mean this book -- I mean I'm not  4 sure this is a matter of evidence, but this book was  5 compiled by counsel.  6 MR. GOLDIE:  7 Q   Oh, I'm sorry, I thought the book had been compiled by  8 the witness.  I misunder -- I am mistaken.  9 Did you assist counsel in selecting the notes  10 that are found in Exhibit 721?  11 A   No.  I understand that these are the deceased persons  12 in this, and I did not -- to the extent that I thumbed  13 through, that's about all, but I did not assist in the  14 selection of that material.  15 Q   I see.  The -- were you aware that it included notes  16 of four interviews with David Gunanoot that had not  17 been disclosed up until now, up until the production  18 of that particular book?  19 A   No, I was not.  20 Q   Or that it includes notes of two interviews with  21 Martha Brown which had not been previously disclosed?  22 A   No, I was not aware of that.  23 MR. GOLDIE:  That, my lord, we find to be the fact, and to  24 preserve my position, I take formal objection to  25 those.  I will continue the cross-examination and  26 reserve my rights with respect to an adjournment if  27 that becomes necessary.  2 8 THE COURT:  David Gunanoot and who else?  29 MR. GOLDIE:  Four of David Gunanoot, my lord, and two of Martha  3 0 Brown.  31 MR. RUSH:  Well, I would like to know which ones because --  32 MR. GOLDIE:  Yes, I'll be glad to tell you.  33 MR. RUSH:  Because this is news to me.  34 MR. GOLDIE:  -- December the second -- these are all in the  35 loose-leaf notes for which there is no -- there is  36 no -- on page 2 of the index, there is an item,  37 loose-leaf notes, which has no further -- no further  38 particularization for David Gunanoot.  It's right at  39 the top of the page, my lord, and we find in there,  40 loose-leaf notes of discussions or notes of December  41 2nd, 1986, two pages; December 2nd, 1986, four pages;  42 April 3rd, 1985, 12 pages and; March 12th, 1987, ten  43 pages.  44 THE COURT:  March 7th?  45 MR. GOLDIE:  March 12th, my lord, 1987.  46 THE COURT:  Of '87.  How many pages, ten?  47 MR. GOLDIE:  Ten, and the previous one was 12. 8044  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 Q   Mr. Sterritt, yesterday I wanted to know in what  2 respect Exhibit 102, which is the map dated October  3 17th, 1985, was a draft map.  And I think if I  4 understand your evidence correctly, that the -- it was  5 only in respect of the internal boundaries that you  6 said it was a draft map.  Am I right in that?  7 A  Well, I would like to see that overlay on this map --  8 or on this stand here.  9 THE COURT:  Which number?  10 MR. GOLDIE:  11 Q   It's Exhibit 102 which is overlay map four.  And in  12 all cases, Mr. Sterritt, I'm talking about the  13 situation as it appeared to you at the date of that  14 particular map?  15 A   Yes.  16 Q   And am I correct in my understanding that it is only  17 in respect of the internal boundaries that you then  18 believed that map to be a draft in the sense of being  19 subject to further review?  20 A  Well, in October of 1985, I had not sat down as I did  21 in December of 1986, to review in detail the  22 information.  I had indications, but this had to be  23 worked out of changes, but at that point we were not  24 ready to make a change to that, or I did not have the  25 information in detail that would require a change.  26 Q   No.  The outline is essentially, if not exactly the  27 same as the map that was attached to the statement of  28 claim as amended in April of 1985, and you've  29 explained what your state of mind was at that time?  30 A   Yes.  31 Q   And was your state of mind in October of 1985, the  32 same with respect to the external boundaries?  33 A   Yes.  It was -- it was similar.  I was pursuing --  34 trying to determine further information, but I was not  35 doing that in a detailed way at that time.  36 Q   Right.  But in October of 1985, as I understand your  37 evidence, you knew at that time that the internal  38 boundaries required further work; is that a fair way  39 of putting it?  40 A   Yes.  There was -- from some of the information that I  41 gathered, there was a need to run a -- that  42 information by the hereditary chiefs, and we had some  43 indication then that there should be further work  44 done.  45 Q   Yes, all right.  Now the -- there appears to be  46 another map which has been marked here as Exhibit 101  47 which is known as the Carrier-Sikanni overlap map. 8045  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 You are familiar with that?  2 A   I would like to see it.  3 Q   Yes, it will be.  I'm not sure whether that's it.  I  4 think we will have to have Exhibit 101 so that your  5 lordship can see.  There is a very large black line  6 that is not on there, but --  7 THE COURT:  What is the map that's been placed on this?  8 MR. GOLDIE:  It is, — I'm instructed that it is Exhibit 101 but  9 without the black line which purports to show the  10 boundary of the lands claimed by the Carrier-Sikanni.  11 Perhaps it -- that could be held up just for a minute  12 over the overlay and then we can take it down.  13 Now Mr. Sterritt, this map is the -- as the title  14 indicates is -- purports to show the extent of the  15 Wet'suwet'en territory affected by the Carrier-Sikanni  16 overlap, and that was produced in 1986, was it not?  17 A   Yes, I believe it was.  18 THE COURT:  Produced by whom, please?  19 MR. GOLDIE:  20 Q   Mr. George?  21 A   By Marvin George, yes.  22 Q   Yes.  That's fine, thank you.  We can work with the  23 overlay now.  24 The evidence, Mr. Sterritt, is that that was the  25 map that was on the wall at the All Clans' Feast of  26 Moricetown on April of 1986.  You were at that feast,  27 were you not?  2 8 A   Yes, I was.  29 Q   And that was a feast to which the Carrier-Sikanni  30 chiefs had been invited?  31 A   Yes.  32 Q   And it was for the purpose of demonstrating to them  33 the extent of the Gitksan-Wet'suwet'en land claim?  34 A   The purpose of that meeting was restricted to the  35 discussion on the Wet'suwet'en portion of that line.  36 Q   Right.  And the hosts were the Wet'suwet'en of  37 Moricetown and Hagwilget?  38 A   Yes.  39 THE COURT:  What was the date of that, please?  40 MR. GOLDIE:  April of 1986, my lord.  41 THE COURT:  Yes, thank you.  42 MR. GOLDIE:  43 Q   Now with respect to that, did anybody at that feast  44 take exception to the depiction of the internal  45 boundaries as shown on that map?  46 A  Are you referring to Carrier-Sikanni or Wet'suwet'en?  4 7 Q   Anybody? 8046  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 A  As I recall -- I don't recall that that was a matter  2 for discussion.  What I recall is that it was a  3 broader discussion than that.  The hereditary chiefs  4 at that meeting would not have been in a position to  5 sit down and in detail discuss each individual  6 territory or review whether or not the boundaries of  7 the internal territories were accurate.  8 Q   Well, Mr. Sterritt, there was a transcript of that  9 meeting, was there there not, or that feast?  10 A   Yes, I believe there was.  11 Q   And have you had an opportunity -- are you familiar  12 with that transcript?  13 A   I read that transcript not long after it was produced.  14 I haven't read it for, oh -- well, now it's almost two  15 years.  16 Q   And at the time that you read it, do you have any  17 recollection of whether it was erroneous, and if so,  18 in what respects?  19 A   I can't recall whether I did or not.  The discussion  20 by and large by the Wet'suwet'en was in Wet'suwet'en,  21 and I wouldn't have been able to understand that  22 language.  23 Q   No.  If the transcript, however, tells us that a  24 Wet'suwet'en chief referred to the map as a map of his  25 territories, you would be unable to quarrel with that?  26 A   If -- yes, that's right.  27 Q   Now, with respect to the external boundaries as of  28 April 1986, did you believe them to be a reasonable  29 depiction of the boundaries of the land claim?  30 A   This is what I was getting to earlier, is that the  31 attitude that we were taking -- the position that we  32 were taking is that if in the process of any of these  33 discussions with our neighbours, it could be  34 demonstrated to us that we were wrong, based on  35 genealogies or based on history or based on detailed  36 description of neighbouring territories that proved  37 otherwise to us, then we were prepared to change our  38 boundary.  And that was an attitude that we had during  39 that period and prior to that.  At that point, I don't  40 recall, I would have to read -- I mean I have read  41 that transcript but I would have to read it again.  42 But I don't recall any Wet'suwet'en hereditary  43 chief -- and of course they were speaking  44 Wet'suwet'en -- saying anything that would have caused  45 me to think that the line that's on that map wasn't  46 basically -- didn't fall within the same degree of  47 correctness as I've described on the northern area and 8047  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 in other areas.  2 Q   Well, the map was prepared to demonstrate to the  3 Carrier-Sikanni as best you could, the land claims of  4 the Gitksan-Wet'suwet'en people?  5 A   Yes.  And to show the degree to which the Carrier-  6 Sikanni were claiming Wet'suwet'en lands.  And the  7 reason I say that, is that a Carrier-Sikanni, if I  8 remember right, if I had that line up -- or if they'd  9 not taken Moricetown, were very, very close to it.  10 And that was -- and we wanted a graphic presentation  11 of that, we wanted to show them on a map what they  12 were saying, and the fact that it appeared to us that  13 they simply hadn't done their homework to that point.  14 Q   Yeah.  I'm not now asking you to address your mind to  15 the question of the overlap.  My question was directed  16 to the accuracy of the outline, the external boundary  17 of your land claim, and I take it from your evidence  18 that you believed it at that time?  Your belief was  19 that it was an accurate representation?  20 A  Well, I can't say -- I can't say whether at that time  21 there were any areas that we were concerned about  22 along that boundary, without -- without looking at  23 those transcripts.  24 Q   Yeah.  Maybe I can put it this way:  If the external  25 boundary is the same in April of 1986 as depicted in  26 Exhibit 101, is the same as the external boundary in  27 Exhibit 102, the traditional territories map, and is  28 the same as the external boundary in the map attached  29 to the amended statement of claim in April of 1985, is  30 it fair to assume that nothing had occurred between  31 April 1985 and April 1986 which caused you to doubt  32 the accuracy or the depiction of the external boundary  33 on the April 1986 map?  34 A  Well, as of April of 1986, we were finally -- we were  35 beginning to -- there may have been some minor areas  36 that were coming to our attention, and as a result, it  37 wouldn't have been before -- it would be one of the  38 reasons in December that the legal counsel asked me to  39 spend full time working on the external boundaries.  40 In April of 1986 -- I can't recall in terms of your  41 question.  42 Q   All right.  Now let me -- there were amendments to the  43 statement of claim in September of 1986?  44 A   In what area?  45 Q   Well, I think it was in the body of the statement of  46 claim.  47 A   Okay.  But in what part of the body? 8048  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 Q   Well, I think it was one of the prayers for relief.  2 MR. RUSH:  Well, my lord —  3 MR. GOLDIE:  Well, we'll put it before him.  4 MR. RUSH:  I think it should be put before him.  5 MR. GOLDIE:  If he wants to satisfy himself on that.  If the  6 book of documents that I handed up yesterday could be  7 placed in front of the witness.  8 Under tab 5 there is an affidavit of Mr. Ryan,  9 and attached -- which is dated October 2nd, 1986, and  10 attached to that starting at page -- well Mr. Ryan's  11 affidavit is four pages long -- is an exhibit and it  12 is an amend -- it is the proposed writ of summons.  13 THE COURT:  Statement of claim, isn't it?  14 MR. GOLDIE:  Well, it's the amendment -- the writ of summons and  15 then it's followed by the statement of claim.  16 THE COURT:  Yes.  17 MR. GOLDIE:  Statement of claim actually begins -- well, the  18 writ of summons is half a dozen pages.  19 THE COURT:  All right.  20 MR. GOLDIE:  Now, that -- the amendments there were to add  21 plaintiffs, would you agree with that, that's  22 indicated by the underlining in paragraphs four, six,  23 seven, et cetera?  24 THE COURT:  Well, there is more amending on page 11.  25 MR. GOLDIE:  I was just pausing while ascertaining whether the  26 witness had picked up the first example of amending  27 and adding plaintiffs.  28 THE WITNESS:  Okay.  29 MR. GOLDIE:  30 Q   Anything you see there, Mr. Sterritt, which is either  31 underlined or side-lined, indicates a change that is  32 being sought on the application to the court at that  33 time?  34 A   I understand that.  I am -- but there are two -- there  35 is an amended -- there is a further amended dated 19th  36 of August, 1986, and there is a further amended which  37 only has two lines at the top of it, there is another  38 one with one, two, three, four lines on it.  I'm just  39 trying to see what the difference is here.  Now, are  40 you referring to the first one with two lines?  41 Q   Well the first one, I think you'll find, is the writ  42 of summons, is it not?  And we can put that to one  43 side.  44 A   Okay.  It leads to that final —  45 Q   Just go to the one that's marked statement -- that  46 starts off -- if you keep on going.  47 A  All right. 8049  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 MR. GOLDIE:  Yeah.  That one, Mr. — which is Exhibit A to Mr.  2 Ryan's affidavit, that contains a number of  3 amendments, but my question for you is this:  To your  4 recollection, was there any amendment made to the map  5 which was attached as Schedule B to that statement of  6 claim?  I don't know if there is an overlay for that.  7 MR. RUSH:  Well, is there a map in the trial book that he can be  8 shown?  9 THE COURT:  There doesn't seem to be, but there is, of course,  10 some underlining in the metes and bounds.  11 MR. GOLDIE:  12 Q   Yes, there is.  13 Well, if you don't have a recollection of it, Mr.  14 Sterritt, and I'm not being critical of you, we'll  15 obtain from the court records, the statement of claim  16 map that was filed at that time.  And my question to  17 you was, do you have any recollection of any changes  18 being made in the map?  19 A   I don't have any recollection.  2 0 Q   There were changes made in the metes and bounds  21 descriptions?  22 A   I see that in going through this Amended Schedule A of  23 the metes and bounds.  I -- just on a quick glance, I  24 don't know the nature of those, whether those are  25 partly fine-tuning or whether they are changes of  26 area, I don't know.  27 Q   All right.  Well, we'll come back to that.  The — I  2 8 want now to come to Exhibit 5, and it was -- it was  29 filed with the court almost contemporaneously with the  30 amendment to the statement of claim which was made in  31 May of 1987, immediately before the trial.  Do you  32 remember that?  Now the red outline is Exhibit 5, is  33 it not?  34 A   Yes, it is.  35 Q   And that was considered by you at that time to be an  36 accurate depiction of the internal and external  37 boundaries?  38 A   That map, map number eight, dated May the 20th, 1987,  39 was considered to be a more accurate depiction and was  40 brought much closer to what the final boundaries would  41 be.  42 Q   Well, Mr. Sterritt, you didn't know at that time what  43 the final boundaries would be, did you?  I'm talking  44 about the day when that map was brought into the  45 courtroom and marked May -- made Exhibit 5?  46 A  Well these -- I began a review of the territories, the  47 external territories in December of 1986, and at that 8050  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 point it was a -- it was as close a depiction as I  2 could get at that time.  3 Q   Yes?  4 A   I was continuing to do work, I thought that it was a  5 good representation, I thought that there might be  6 some further changes but I hadn't completed that  7 review.  8 Q   It was represented as final, wasn't it?  9 MR. RUSH:  Excuse me.  It was represented by -- as final by  10 whom?  11 MR. GOLDIE:  By the plaintiffs' counsel.  12 MR. RUSH:  Well maybe that question should be put to Mr.  13 Sterritt.  14 MR. GOLDIE:  15 Q   Well, I'm asking him.  16 It was represented as final, wasn't it?  You know  17 that, don't you, Mr. Sterritt?  18 A   Not necessarily.  There was the question of the --  19 Q   Excuse me.  The question was, did you know that it was  20 represented as final at the time?  21 A   I can't say that I knew that.  22 Q   I see.  23 A  And I have -- I have the -- one of the qualifications  24 I make on that is that the Thutade territory which  25 David Gunanoot had always maintained as being the  26 House of Nii Kyap, had become the subject of some  27 discussion in the meetings at Babine, and he believed  28 that and insisted that that was his territory.  Some  29 information came up in Burns Lake that was new, and --  30 Q   Mr. Sterritt, you've given that evidence.  The  31 question that I'm putting to you was, I asked you, did  32 you know that it was represented as final, and you  33 said you didn't know that.  Now my next question is  34 that at the time you believed it to be final, did you  35 not?  36 A   Yes.  I don't recall, but in terms of the work that we  37 had done at the time and that we understood that we  38 were going to be in court in May or June of 1987, and  39 that there were demands on us to have a map in court,  40 that we were prepared at that time to proceed with the  41 external boundaries.  And I think that as I recollect  42 -- well I can't say that -- I can't say that I thought  43 they were final, I can't recall that.  44 Q   Well surely, Mr. Sterritt, Exhibit 5 was the  45 culmination in your mind of the review that had been  46 undertaken since December 1986?  47 A   It was the -- it was the extent of a review that I had 8051  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 taken at that time of the external territories.  2 Q   Well Exhibit 5 shows internal boundaries, doesn't it?  3 A   Yes.  4 Q   And the statement of claim was amended at that time to  5 show changes in the external boundaries?  6 A   Yes.  7 Q   And those are the same changes that are found on  8 Exhibit 5; is that right?  9 A   Yes.  10 Q   All right.  The question that I put to you was that  11 surely by May of 1987, Exhibit 5 and the map that was  12 attached to the statement of claim that was amended in  13 May of 1987, was thought by you at that time to be the  14 culmination of all of the work of review that you had  15 undertaken since December 1986?  16 A   No, I wouldn't use the word "culmination".  It was the  17 extent of the work I had done at the time, but -- and  18 others, Marvin George and Alfred Joseph.  But it was  19 the state of the work at that time.  20 Q   And you say that -- are you now saying that you did  21 not believe it to be final when it was produced and  22 marked as an exhibit in the courtroom?  23 A   I don't recall whether I believed that it was final or  24 not final at that point, I don't recall.  25 Q   What would be the point of amending the statement of  26 claim at that time if it wasn't final, or if the  27 external boundaries weren't finalized?  28 A  Well, the point is that at any given time when we had  29 done the work necessary to reflect more -- well, when  30 we had done more accurate research, when we  31 determined, based on information we had, and if it was  32 forthcoming information from neighbours, then we would  33 amend the map.  And at that point, we did have a  34 certain extent -- certain amount of work that had been  35 done, and based on that, we amended the map at that  36 point.  37 Q   And that -- at that time, you believed that was the  3 8 final amendment, didn't you?  39 A  Well, the hereditary chiefs, I had conducted a review  40 with them, there was really nothing other than the --  41 the Thutade area which had -- where we had received  42 some oral information that we had to -- had to look at  43 further.  Other than that, most of the areas we felt  44 that we had zeroed in fairly well on the boundaries  45 and we were prepared to make changes at that time  46 based on those.  47 Q   And they were to be the final changes? 8052  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 A  With the exception that if a -- if information was  2 forthcoming, that it -- in which, based on my mapping,  3 I might do an extrapolation where there was finer  4 detail coming forward, that we would be prepared to  5 make those changes.  6 Q   But you had no inkling of any such changes at the time  7 that map was filed with the amended statement of  8 claim?  9 A   Yes, I think that's — I think that's correct.  The —  10 I did not have at that point, information that I  11 received later that caused us to draw a more precise  12 boundary.  13 Q   Yeah.  And I -- the same can be said of the internal  14 boundaries of Exhibit 5, that you had no inkling of  15 any changes at that time?  16 A   Oh no, that's not true.  The -- basically, the  17 internal boundaries -- I did a review of the external  18 boundaries -- external territories, and then as a  19 result of that, I knew that I would have to do a  20 review of the internal boundaries, and that that would  21 be a major task.  And that was undertaken, commencing  22 in the summer of 1987, with the -- when we proceeded  23 to the affidavits.  24 Q   And you are telling His Lordship now that as of May of  25 1987, you had sufficient knowledge to be aware of the  26 fact that Exhibit 5 was inaccurate as to the internal  27 boundaries; is that your evidence today?  28 A   I had some information.  I think that I didn't  29 appreciate the extent to which there would be  30 modifications of the internal boundaries until I got  31 right into the process, but I had some indications.  32 Q   And to what extent -- just describe to me briefly the  33 nature of the information you had in May of 1987,  34 which informed you that the internal boundaries on  35 Exhibit 5 were inaccurate or inaccurately depicted?  36 A  Well, I -- as I pointed out, there was basically two  37 main phases of the work that I did, and that was in  38 information gathering and then -- which led up to a  39 very intensive review that began to a certain extent  40 in December of 1986, and then increased with -- when  41 we went into the affidavit process.  And I did have --  42 I did have information that I would have to look at,  43 and some of that information that I had, didn't  44 necessarily get to Marvin who was doing the mapping.  45 And also, if it did, then it didn't mean that he  46 necessarily had been able to get that on a map.  47 Q   The -- did you instruct Mr. Grant to inform the 8053  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 defendants that Exhibit 5 was a correct copy of the  2 internal boundaries with the names of the chiefs of  3 those territories marked thereon?  4 A   No, I did not.  5 Q   Who would have authority to give that instruction, Mr.  6 Sterritt?  7 MR. RUSH:  Well, isn't that something that is a question that is  8 between the counsel and the plaintiffs in this case,  9 who gives instructions?  10 MR. GOLDIE:  Well —  11 MR. RUSH:  Isn't that a matter covered by the privilege that  12 attaches to communications and responsibility between  13 plaintiffs and their counsel?  14 MR. GOLDIE:  Not yet, my lord.  I'm asking the witness who has  15 authority to give instructions to counsel that that  16 map, Exhibit 5, was a correct copy of the internal  17 boundaries.  18 THE COURT:  I think the question of who had authority does not  19 call for an answer that would be privileged.  2 0 THE WITNESS:  I don't know who would have informed Mr. Grant of  21 that.  22 MR. GOLDIE:  23 Q   No, that was not my question.  I said who would have  24 the authority to instruct counsel that that was a  25 correct copy of the internal boundaries?  26 A   The lawyers were basically taking instructions from  27 the hereditary chiefs, and from time to time I would  28 myself or Don Ryan, or depending on what was being  29 done, would relay information to the lawyers.  30 Q   Is it your evidence that any instructions to the  31 counsel would come from the hereditary chiefs or the  32 plaintiffs themselves?  33 A   In some areas.  But in terms of the map the -- that  34 map is such with those internal boundaries, there  35 would be really no way for the hereditary chiefs to  36 say that those boundaries were accurate or not at that  37 time.  38 Q   Well, how would you know that?  39 A   Because of the review that I ultimately ended up  40 doing, and the affidavit process.  41 Q   Well, Mr. Sterritt, we are talking about May of 1987,  42 and how would you know that the plaintiffs hadn't  43 instructed counsel to say that's a correct copy?  44 A   I'm not aware of that occurring.  45 Q   No.  Well, now -- so if instructions were given, it  46 would be from the hereditary chiefs; is that correct?  47 A   On some areas, yes. 3054  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  A  MR. RUSH:  MR  MR  Well, I'm talking about instructions with respect to  the correctness of the boundaries as depicted on that  map.  Now who else could give instructions with  respect to that?  Well, I don't -- I don't think the hereditary chiefs  would have given instructions.  I'm not asking you whether -- what you think about  whether they did it or not.  I'm asking you about who  had the authority other than the hereditary chiefs to  give you those instructions?  He has answered that question, has he not?  He said  "In some cases myself, in other cases Mr. Ryan, in  some cases the hereditary chiefs."  GOLDIE:  I'm now being specific and asking about that map  and --  RUSH:  Well, I'm going to object to any questions of  instructions.  My friend is entitled, in my  submission, to ask, as your lordship has ruled, about  who has the authority, that question has been  answered.  The question then, and I think this is  where my friend is inching his question into the  question of privilege, and I object to it.  GOLDIE:  There is no privilege attached as to who gave  instructions.  The privilege attaches to the content  of the instruction.  Well, that's right.  Well, there is no privilege for communication  between a client and his solicitor if it's an  instruction that is given for the purpose of being  communicated.  There is a decision of Judge van der  Hoop's on that very point where he said, "If a client  tells a lawyer, 'Deliver this conveyance to the  purchaser,' well there is no privilege there because  it was intended that it be communicated."  The problem  that we have here, as I see, is it may be that if the  communication was made to the defendants that it was  made without the authority, without specific  authority.  MR. GOLDIE:  Well, I'm — I haven't contemplated that, my lord.  Perhaps your lordship would look under tab 8, and I  invite you to do the same, Mr. Sterritt.  Now, this is  Mr. Grant's letter of May the 11th and he states, and  I quote:  "Please find enclosed a map of the external  boundaries of the Gitksan and Wet'suwet'en  territory as set out in the proposed amended  MR.  MR. RUSH:  THE COURT 8055  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 statement of claim attached to the affidavit of  2 Shirley Meldrum, together with the internal  3 boundaries of the territories of the individual  4 houses."  5  6 Next paragraph:  7  8 "I have been instructed that this is a correct  9 copy of the internal boundaries with the names of  10 the chiefs of those territories marked thereon."  11  12 Now, Mr. Sterritt, you would agree with me that the  13 map in question is Exhibit 5, is it not?  14 MR. RUSH:  For identification.  15 MR. GOLDIE:  16 Q   Well, we know.  17 A   Yes.  18 Q   And my question to you was, did you give the  19 instructions that Mr. Grant is acting upon, and I  20 understood you to say no?  21 A  Well, as I read this, maybe I'm wrong, I don't --  22 first of all, Peter -- well, I can't -- I can't say  23 what Mr. Grant was thinking of, but it may have been  24 that when he received the map from Marvin George,  25 Marvin George said, "This is a correct copy."  26 Q   Well just a second, Mr. Sterritt, that's speculation  27 on your part, isn't it?  28 A  Well, yes.  29 Q   Yes.  My question to you was, we had established that  30 you hadn't given any instructions.  Was that correct?  31 A   I don't recall giving those instructions that this is  32 a correct copy, that's right.  33 Q   Of the internal boundaries?  34 A   That's right.  35 Q   Yes.  And you don't recall, you may have given such  36 instructions?  37 A  At that point, I was aware of the use of the  38 interrogatory maps, and that there were -- that they  39 were drafts.  That based on the fact that the  40 interrogatory maps were draft and they were used as a  41 base for the internal territories of that, I would not  42 have said that that is a correct copy.  43 Q   All right.  So we were trying to find out who had  44 authority to give instructions that it was a correct  45 copy, and your answer, if I understand it, was, "In  46 some cases Don Ryan, in some cases the hereditary  47 chiefs," and I think there was a third example you 8056  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 gave?  2 A  Well, the affidavit maps as being drafts and virtually  3 every one of them having draft marked on them, formed  4 the basis, as I recall, for those territories, the  5 internal territories drawn on this map.  That being  6 the case, I don't -- I don't think -- I don't know of  7 anyone who would have given those instructions.  8 Q   Well, we were -- really, my question wasn't who gave  9 the instructions, my question was who had the  10 authority?  Was Don Ryan the president of the tribal  11 council?  12 A   No.  He was the executive director.  13 Q   And would the executive director have authority to  14 instruct counsel with respect to matters in this  15 lawsuit, specifically that map?  16 A   Don Ryan would not have had the -- Don Ryan would not  17 have given those instructions because he left -- he  18 had other areas that he was responsible for.  He could  19 give instructions in some areas that he was more  20 familiar with, but this was an area that I worked with  21 and he would not have given instructions on that area.  22 Q   So if it wasn't Ryan and if it wasn't you, that leaves  23 the hereditary chiefs?  24 A  Well, the hereditary chiefs would not have done that.  25 There is no meeting that I am aware of where the  26 hereditary chiefs did that.  27 Q   Well I wasn't talking about that, Mr. Sterritt, I'm  28 simply establishing that it is the hereditary chiefs  29 who have the authority?  30 A   They -- yes, they do have authority.  31 Q   All right.  And if the hereditary chiefs believed that  32 the maps attached to their affidavits were correct,  33 there would be nothing inconsistent with them giving  34 the instructions that this was a correct copy of the  35 internal boundaries, would there?  36 A   But they did not.  There is no situation where they  37 approved those boundaries at that time.  38 Q   Well, that's your knowledge at this time?  39 A   Yes.  40 Q   They might?  41 A   No, no.  42 Q   Well, are you saying that the hereditary chiefs had no  43 contact with counsel?  44 A   Oh yes, they did.  But there was no situation where  45 the hereditary chiefs gave final approval to those  46 internal boundaries.  47 Q   But they did approve the draft maps attached to their 8057  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 affidavits, didn't they?  2 A  Within the limitations of what I described all of last  3 week.  4 Q   No.  I'm talking about what they swore to in their  5 affidavit.  And they swore that the maps attached to  6 their affidavits were their territories; isn't that  7 correct, to your knowledge?  8 A   In terms of the --  9 MR. RUSH:  No, you can't ask a question like that.  With all —  10 firstly, that is not a reflection of what is contained  11 within the answers to the interrogatories, it's not  12 even a close summary of the answers.  There were a  13 number of different answers dealing with the  14 approximation of the territories, and various answers  15 which included reference to the fact that the maps  16 were draft.  17 THE COURT:  I think the question may involve an examination of  18 one or more of the affidavits in question, and --  19 MR. GOLDIE:  I'll come to that a little later, my lord.  2 0 THE COURT:  Take the morning adjournment?  21 MR. GOLDIE:  I was just going to say I tender the letter under  22 tab 8 as an exhibit, my lord.  23 THE COURT:  Yes, all right.  That will be exhibit?  24 THE REGISTRAR:  728, my lord.  25 THE COURT:  728, thank you.  26  27 (EXHIBIT 728 - Letter dd. May 11, 1987, Tab 8 of Mr.  28 Sterritt's Book of Documents)  29  30 MR. GOLDIE:  Thank you, my lord.  31 THE COURT:  All right.  32  33 (PROCEEDINGS ADJOURNED AT 11:15 a.m.)  34  35 I hereby certify the foregoing to be  36 a true and accurate transcript of the  37 proceedings herein transcribed to the  38 best of my skill and ability.  39  40  41  42  43 Toni Kerekes,  44 O.R., R.P.R.  45 United Reporting Service Ltd.  46  47 305?  N. Sterritt (For Plaintiffs)  Cross-exam by Mr. Goldie  1 NEIL STERRITT, Resumed:  2 (Proceedings resumed following short recess)  3  4    CROSS-EXAMINATION BY MR. GOLDIE:  (Continued)  5  6 MR. GOLDIE:  7 Q   Mr. Sterritt, we know at least one hereditary chief  8 confirmed the accuracy of the depiction of territory  9 on Exhibit 5, isn't that correct?  10 A   I don't know that.  11 Q   Well, would you look at Exhibit 5, which is off to  12 your right, and you will see outlined in red with a  13 degree of emphasis that the other colourings lark, a  14 territory, and do you recognize whose territory that  15 is?  16 A   Yes, I do.  17 Q   Whose is it?  18 A   It's the territory of Gyolugyet, and she spoke to the  19 main creeks within her territory, and not having been  20 there, to the best of her ability about the  21 boundaries.  But Richard Benson, when he was in  22 commission, referred to an area along Kuldo Creek on  23 the south side, where that boundary should be  24 adjusted, and that is an adjustment that has been  2 5 made.  26 Q   Mr. Sterritt, were you in court on May 20th when Mrs.  27 McKenzie gave evidence?  28 A   Yes, I sat through her evidence.  29 Q   Do you recall hearing Mr. Grant examine her in chief,  30 and I am referring to the transcript for that date,  31 volume seven, my lord, at page 410 line 26:  32  33 "Q   I would like you to turn around and behind  34 you is a map labelled 'The External Boundaries of  35 the Gitksan Wet'suwet'en territory' dated May  36 2nd, 1987.  And for the record this map is --  37 shows the external boundaries as in Schedule "A"  38 to the amended statement of claim and it also has  39 internal boundaries located thereon.  4 0 Could you come and take a look at that map and  41 point to the map the territory of Gyolugyet on  42 that map.  Just to give you some points of  43 reference, Hazelton is there about the middle of  4 4 the map.  45 A   Yes. Hazelton here, and this is Galdo'o and this  46 is where Gyolugyet's territory starts is there  47 and it goes along and of course this is Ma'uus 8059  N. Sterritt (For Plaintiffs)  Cross-exam by Mr. Goldie  1 the neighbour here and Antgulilbix and Tsibasaa  2 here?  3 Q   Those are neighbours as well?  4 A   Yes.   And it goes all to Delgamuukw just where  5 all this red lining is.  And I mentioned that I  6 had Wii'goog'l as one of the neighbours.  This is  7 the territory of Wii'goog'l here.  8 Q   And it goes along this red line at the north at  9 the top end there where you were unable to reach?  10 A   Yes.  Yes.  11 Q   Now, have you examined that map and determined if  12 that's an accurate -- that red line is an  13 accurate outline of your territory?  14 A   It's accurate "  15  16 Would you not agree with me that Mrs. McKenzie  17 approved or adopted the outline of her territory on  18 Exhibit 5?  19 A   Yes, she did.  As it appears.  But as I mentioned,  20 Richard Benson, who -- and as a matter of fact, it's  21 partly as I understood at the time, there was some  22 difficulty determining that southern boundary, and  23 when Richard Benson was in commission, he clarified  24 that the boundary does not go down that creek, it runs  25 along the height of land south of that creek.  And  26 corrected both his affidavit and our understanding at  27 that time.  2 8 Q   Well, we will come to why Mr. Benson's evidence should  29 supersede that of Mrs. McKenzie, I just asked you to  30 agree with me that she approved the depiction of her  31 territory on Exhibit 5?  32 A   Yes, she did.  33 Q   Now, am I correct, then, that the research undertaken  34 since May, 1987 is the research and the result which  35 gave -- which came from that research, in the form of  36 9-A, which you say is to be preferred over all that  37 which preceded it?  38 A   The affidavits of the hereditary chiefs, and the  39 mapping, the maps drawn, and the mapping based on  40 those affidavits is to be preferred, yes.  It's the --  41 a much more intensive process and a complete review of  42 every territory.  43 Q   The research, then, as of May the 11th, 1987, was --  44 was, to your knowledge, incomplete?  45 A   Yes.  46 Q   What -- you can't say that the research is completed  47 yet, can you? 8060  N. Sterritt (For Plaintiffs)  Cross-exam by Mr. Goldie  1 A   Yes, I -- well, the -- I have, through the research  2 that I have done, and other people have done, we have  3 identified a lot of information.  Within the  4 territories there is details, there are place names  5 that -- well, there are far more place names than have  6 appeared on the maps, because it would have been too  7 detailed, but there is still information that may be  8 available.  But in terms of the information on the  9 boundaries, we have attempted to focus on that area,  10 we focused on that, and the accuracy of those  11 boundaries, the information that we have and the  12 affidavits of the hereditary chiefs, gives a very  13 accurate presentation of the boundaries.  14 Q   But those boundaries may change again, won't they?  Or  15 is it not a possibility that those boundaries may yet  16 change?  17 A   Not to my mind.  The hereditary chiefs have had the  18 opportunity of reviewing in detail where the  19 boundaries are, and those boundaries are very  20 accurate, and the hereditary chiefs feel quite  21 comfortable with them.  22 Q   Well, that's for them to say.  23 I put it to you, however, that if there are some 16  24 remaining Gitksan witnesses, and if they in their  25 evidence depart from the metes and bounds descriptions  26 in their affidavits, you will change the boundaries,  27 won't you?  28 A   If the hereditary chief identifies a situation where  29 that occurs, then it would -- that would have to be  30 the situation.  It's the hereditary chiefs'  31 information and I can't challenge that.  32 Q   No.  So you agree with me that the boundaries may yet  33 change?  34 A   There may be a few situations on the internal  35 boundaries where a boundary could vary, and I will  36 give you an example, the boundary between the House of  37 Wah Tek Teht, there is a plaintiffs' number for that,  38 and Djogaslee, where the boundary is identified at a  39 particular creek, and the hereditary chief has  40 identified that, the Gitksan hereditary chief has  41 identified that as a boundary as well, but there is  42 also information that another creek within two or  43 three miles has been -- may be the boundary, and the  44 hereditary chief wishes to discuss that with, at some  45 point, with the neighbours.  In reviewing that  46 information the original hereditary chief, a man by  47 the name of Ax Weegasxw, is a member of the house of 8061  N. Sterritt (For Plaintiffs)  Cross-exam by Mr. Goldie  1 Djogaslee, and I don't know if I spelled Ax Weegasxw.  2 THE COURT:  You did but I am not sure I got it.  Did it start  3 with A-X or just X?  4 A  A-X —  5 THE COURT: W-E-E-G-A-S-X-W?  6 A   Yes.  Now, it appears that sometime in the past, Ax  7 Weegasxw was either related to or was connected with  8 the the Wet'suwet'en.  And that at that area, there is  9 a boundary at a creek called Sta Gapsit, and that Ax  10 Weegasxw also went as far as another creek called Xsu  11 Gwi Tsiik, and that in reviewing the genealogical  12 information, the house of Djogaslee, is Lax Seel, and  13 Frog, the House of Wah Tek Teht, as I understand it,  14 is Gilhseyu, which is also Frog, and that it's an old  15 zone of interaction between the Wet'suwet'en and the  16 Gitksan, and they will have to discuss that, but there  17 were very close relationships and at this time the  18 boundary is at Porphry Creek.  I don't, as a result of  19 those discussions, I can't predict whether they will  20 define the boundary at Boulder Creek or at Porphry  21 Creek, but the hereditary chief, Djogaslee, has said  22 that subject to further discussions the boundary is at  23 Porphry Creek, and so have the persons from  24 Moricetown, in terms of their statements.  They have  25 said the boundary is there.  But there is that kind of  26 family relationship, that's the kind of thing I am  27 talking about.  28 MR. GOLDIE:  29 Q   That's an example of where a boundary may shift in the  30 future?  31 A   It might, yes.  32 Q   And there are others?  33 A   I can't -- there may be a few, I can't think of -- I  34 really can't think of any.  But the hereditary chiefs  35 are the ones that would have to speak to that and they  36 have identified all of the areas through the affidavit  37 process and, to the best of my knowledge, they feel  38 very comfortable with what has been done in those  39 affidavits.  40 Q   The process, however, that you described, involved  41 Djogaslee -- who is Mr. Walter Wilson?  42 A   Yes.  43 Q   And he has been cross-examined on his affidavit?  44 A   Yes, he has.  45 Q   And he has maintained that his affidavit is correct?  46 A   Yes.  47 Q   But you're telling me that he may change it in the 3062  N. Sterritt (For Plaintiffs)  Cross-exam by Mr. Goldie  1 future?  2 A  Well, that would be based on the discussions that I  3 have just referred to, that it's a matter of the two  4 houses sitting down and reviewing the nature of the  5 relationship between Ax Weegasxw and the Gilhseyu at  6 the Wet'suwet'en, but that will be subject to that  7 review.  And that's a possibility.  8 Q   And what you have just described could take place  9 between any two neighbours?  10 A  Well, you -- one thing to bear in mind is that as with  11 any culture, there are things that occur over time.  12 Another example is that there was once a territory of  13 Skiik'm lax ha, that's spelled -- I don't have the  14 plaintiff number, if somebody can give it rather than  15 me spell it.  16 Q   I don't have the glossary.  17 MR. RUSH:  59.  18 THE COURT:  59?  19 MR. RUSH:  Yes, my lord.  20 A   There is an example where the vitality of the Gitksan  21 system in that a member of the House of Djogaslee  22 assisted the House of Skiik'm lax ha, and for that  23 reason the House of Skiik'm lax ha, turned over a  24 portion of their territory to the House of Djogaslee.  25 And I can't -- and there have been examples where that  26 has occurred, even in the 1960s, so to assume that the  27 internal boundaries are static, or will remain static  28 in the future, is to assume that the system is static  29 as well and it's not.  The people are -- continue to  30 feast, they continue to have relationships and people  31 provide benefits to other people.  There could be a  32 change in a boundary for a specified period of time  33 for a specified purpose, there could be a change in  34 who the hereditary chief is, based on a permanent  35 change for some reason, due to an accident or -- so,  36 the system has continued to work, continued to exist,  37 and those are -- you know, I can't say that the system  38 is static.  39 Q   I didn't suggest to you, Mr. Sterritt, I simply asked  40 you to agree with me that the changes of the kinds  41 that you described earlier could occur between any two  42 neighbours?  43 A   In terms of the internal territories, that could  44 occur.  I don't think that it's likely, but -- I think  45 we have to allow for that possibility.  46 Q   And they need not even be neighbours, you have just  47 described, and we will come to some of those examples 8063  N. Sterritt (For Plaintiffs)  Cross-exam by Mr. Goldie  1 later, where people acquire territory because of  2 events which have taken place historically, and I  3 suggest to you that could happen in the future and I  4 understood your answer to be yes, of course it could?  5 A  What you're saying is that it need not occur between  6 neighbours and I agree with that.  7 Q   Right.  Now, I want you to turn back, please, to tab 1  8 that is in your -- the book that's before you, and I  9 had turned your attention to tab 9 --  10 THE COURT:  Paragraph 9?  11 MR. GOLDIE:  Yes, sorry, my lord, paragraph 9, tab 1.  12 Q   And the first sentence states:  13 "The Gitksan and Wet'suwet'en hereditary chiefs  14 instructed the Gitksan-Wet'suwet'en Tribal Council  15 Association to commence an action on their behalf  16 after the completion of nine years of research."  17 Now, when was that instruction given, please?  18 A   The instructions were to the hereditary chiefs --  19 pardon me, to the Tribal Council and to the lawyers.  20 I think it was in the summer of 1984.  21 Q   Thank you.  Now, going to paragraph two, you say in  22 that paragraph, and I quote:  23 "The Gitksan-Wet'suwet'en Tribal Council Association  24 is a society incorporated under the Society Act of  25 British Columbia, on March 1st, 1978 and represents  26 the hereditary Gitksan and Wet'suwet'en chiefs with  27 respect to their aboriginal title."  28 That is a correct statement?  29 MR. RUSH:  When, then or today?  30 MR. GOLDIE:  31 Q   Any time.  32 A  Well, it's not true today because there is no society.  33 In terms of, as I recall, in the constitution of 1978,  34 there is a clause in there that refers to aboriginal  35 title, or, I am not sure those are the exact words but  36 they may well be, and what the purpose of the Tribal  37 Council as defined therein was.  38 Q   Well, I am sorry, I don't understand whether you have  39 answered my question.  40 A  Well, ask your question again.  41 Q   That is a correct statement?  42 THE COURT:  Well, he said it was not, Mr. Goldie.  43 MR. GOLDIE:  Because it's no longer a society.  44 THE COURT:  Because it's no longer a society.  45 MR. GOLDIE:  46 Q   Assuming the society has disappeared, it was a correct  47 statement at the time you made it in February of 1985; 8064  N. Sterritt (For Plaintiffs)  Cross-exam by Mr. Goldie  1 is that correct?  2 A   The -- yes, one of the purposes of the Tribal Council  3 is to, on a political level, was to speak out with  4 regard to aboriginal title and aboriginal rights, and  5 the hereditary chiefs also did that.  6 Q   And in paragraph 5 you say:  7 "Since 1975 I have researched the land claim of the  8 Gitksan and Wet'suwet'en hereditary chiefs..."  That's  9 a correct statement, is it not?  10 A   Yes, it is.  11 Q   And you go on to say:  "And since March 1st, 1978 I  12 have been involved in working on behalf of the  13 Gitksan-Wet'suwet'en Tribal Council Association in  14 researching their aboriginal claim."  15 Is that a correct statement?  16 A   Yes.  17 Q   And paragraph 9 I have referred you to.  Paragraph 10:  18 "The Gitksan-Wet'suwet'en Tribal Council Association  19 has been instructed by the plaintiffs in the action  20 referred to in paragraph 7 to bring that action on  21 behalf of the hereditary chiefs of the Gitksan and  22 Wet'suwet'en people and to protect the aboriginal  23 title of the Gitksan Wet'suwet'en hereditary chiefs."  24 Is that a correct statement, subject to your  25 observation about the dissolution of the Tribal  26 Council Association?  27 A   It's -- yes, it's correct, but the hereditary chiefs  28 also instructed the lawyers to commence an action as  29 well.  30 Q   Directly?  31 A   Yes, they did.  32 Q   Paragraph 11:  "I have read the notice of appeal filed  33 herein, I do verily believe that this court will be  34 asked to decide issues on this appeal which will be  35 determinative of the existence of the aboriginal title  36 of the Gitksan and Wet'suwet'en people.  These issues  37 have been researched and prepared by the Gitksan-  38 Wet'suwet'en Tribal Council Association in preparation  39 of our court action."  40 Is that last sentence correct?  41 A   It's correct in the sense that work had been done on  42 those issues, the work had not been completed at that  4 3 time.  44 Q   Would it have been more accurate to have said "these  45 issues have been partially researched and partially  46 prepared"?  47 A   I don't think that the words that are there suggest 8065  N. Sterritt (For Plaintiffs)  Cross-exam by Mr. Goldie  1 that the work is completed.  I don't have any  2 difficulty with the words that are there.  3 Q   Paragraph 12:  "The issues raised in this appeal are  4 directly raised by our statement of claim.  The  5 defence of Her Majesty the Queen in right of Province  6 of British Columbia.  The determination of this issue  7 by the British Columbia Court of Appeal will directly  8 affect our litigation currently before the  Supreme  9 Court of British Columbia, without allowing us an  10 opportunity to present our evidence and argument in  11 respect to the existence of aboriginal title."  12 Is that a correct statement?  13 A   Yes, the outcome of the issues raised there could have  14 affected the Gitksan-Wet'suwet'en hereditary chiefs'  15 case.  16 Q   And this affidavit was sworn in support of your  17 application to intervene in the Meares Island appeal?  18 A   Yes.  19 Q   And to enable your counsel to state to the court that  20 you were ready to proceed to trial within a stated  21 period of time?  22 A   I don't recall that that was -- I know that there was  23 an issue but whether that's the express purpose of  24 this affidavit, I can't say.  I don't recall.  25 Q   In any event, you weren't ready to proceed to trial  26 because your research and preparations were incomplete  27 at the time?  28 A  Well, in the -- in the -- in terms of the timing and  29 the complexity of the case, the size of the case, it  30 was -- we estimated when it would be that we would be  31 in court, we made representations from time to time to  32 the court that we were doing our best to be ready and  33 we asked for delays from time to time and explained  34 some of the reasons why, in terms of financial  35 problems, and from that point of view, the magnitude  36 of what it was we had to do and the responses we had  37 to make in terms of interrogatories and examinations,  38 and so on, we had to delay.  39 Q   The financial problems didn't emerge until the summer  40 of 1987, is that correct, as a reason for delay?  41 A   I don't recall exactly when they emerged.  It may be  42 when we brought it to the attention of the court but I  43 don't recall exactly when that emerged.  44 Q   Mr. Sterritt, I want to refer to some instances in  45 your examination for discovery.  You recall being  46 examined for discovery in February and March of 1987?  47 A   Yes, I do. 3066  N. Sterritt (For Plaintiffs)  Cross-exam by Mr. Goldie  1  MR.  GOLDIE  2  3  THE  COURT:  4  MR.  GOLDIE  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  A  20  Q  21  A  22  MR.  RUSH:  23  MR.  GOLDIE  24  Q  25  26  27  28  A  29  Q  30  31  A  32  33  Q  34  35  36  37  A  38  39  40  41  Q  42  A   '  43  Q  44  45  46  47  :  Could you hand up to his lordship the originals of  the transcripts.  Thank you.  :   Questions 12 and 13 in volume one:  Q   Would you look, please, at the prayer for relief,  Mr. Sterritt.  First would you confirm for me  please that these statements of claim were  reviewed with you prior to them being filed?  When I say these, I mean the original statement  of claim filed in October of 1984 and the  subsequently amended statements of claim.  They  were all, were they not, reviewed with you prior  to being filed?  A   They were reviewed with the hereditary chiefs.  Q   And with you?  A   I was present."  You were asked those questions and you gave those  answers?  Yes.  And the answers were true?  Yes.  What's the page number?  :  Page five.  Now, in that answer where you stated they were  reviewed with the hereditary chiefs, those were the  chiefs that were named as plaintiffs in the Statement  of Claim in October, 1984?  Yes, and others.  There were 37 Gitksan plaintiffs at the time, were  there not?  In the original statement of claim, I think that's  correct.  And there were no more than that number because it was  thought by you that that number would cover the entire  territory claimed on behalf of the Gitksan; is that  right?  It was, as I recall, there was a grouping which -- not  that there were only 37 hereditary chiefs but that in  terms of their relationships with each other, that  that grouping would cover the entire territory.  That grouping being the 37?  Well, that grouping of 37 hereditary chiefs, yes, yes.  And indeed, that's what the statement of claim that  you reviewed alleged?  And if you would like to look  under tab 1 of the book in front of you, you will find  attached to your affidavit of February, 1985, the  statement of claim of October, 1984.  And in paragraph 8067  N. Sterritt (For Plaintiffs)  Cross-exam by Mr. Goldie  1 49, page six, it is alleged that "the plaintiffs in  2 paragraphs one, three to six, eight to ten and 12 to  3 40, are the hereditary chiefs of the Gitksan and are  4 descendents of the hereditary Gitksan chiefs  5 hereinafter collectively referred to as the Gitksan  6 chiefs."  And in paragraph 50 it is alleged that "the  7 Gitksan chiefs represent all members of the Gitksan.  8 The Gitksan together share a common territory,  9 language, laws, religion, culture, economy and  10 authority."  You would agree with me that that is an  11 allegation, statement, if you like, that the 37  12 plaintiffs were the hereditary chiefs and that they  13 represented all members of the Gitksan?  14 A   To the extent that others, that there were groupings,  15 there were relationships and our understanding at that  16 time was that all of the hereditary chiefs would be  17 represented by those 37 Gitksan and then there were  18 also Wet'suwet'en, to that extent, yes, that statement  19 was true at the time.  2 0 Q   All right.  And how many Gitksan chiefs are named  21 plaintiffs now, do you know?  22 A   I can't recall.  I would have to --  23 Q   Something in the order of 65 for so?  24 MR. RUSH:  I think we shouldn't be "in the order" of anything.  25 If something turns on the number, then the statement  26 of claim that's presently before the court should be  27 put to the witness and he can count them.  28 MR. GOLDIE:  29 Q   Well, I am content to, at this point, say there are  30 more, would you agree with that?  31 A   Yes, there are more.  32 Q   Than 37.  33 And the -- I want to read you questions 49 to 57 of  34 your examination for discovery:  35 Q   Mr. Sterritt, you are, I believe, president of  36 the Gitksan-Wet'suwet'en Tribal Council  37 Association?  38 A   Yes.  39 Q   And you have held that position since 1981?  40 A   Yes.  41 Q   Is it your full-time occupation?  42 A   Yes.  43 Q   And in your capacity as president of the Tribal  44 Council you are the chief spokesman for the  45 hereditary chiefs who are the plaintiffs in this  46 action?  47 A   I am a delegate of the hereditary chiefs in 306?  N. Sterritt (For Plaintiffs)  Cross-exam by Mr. Goldie  1 certain situations.  2 Q   The question I put to you was would you agree  3 that you are the chiefs spokesman for the  4 hereditary chiefs?  5 A   That would not be true in all situations.  6 Q   In respect of this case?  7 A   That would not be true.  8 Q   Tell me, and tell me the extent to which it is  9 not true so far as this case is concerned?  10 A   The hereditary chiefs will speak for themselves.  11 Q   Mr. Sterritt, in fact you speak for them, don't  12 you?  13 A   No, I do not.  14 Q   In what case has a hereditary chiefs spoken for  15 himself in this case?  16 A   They will be speaking for themselves in court."  17 You were asked those questions, you gave those  18 answers?  19 A   Yes.  20 Q   And the answers are true?  21 A   Yes.  22 Q   And by true, I mean true then and are they true now?  23 A  At that time, the hereditary chiefs had instructed me  24 that in matters of Adaawk, that they were the ones  25 that had to speak to that.  There was a concern that  26 they had that, for the sake of convenience, the courts  27 might not allow them the opportunity to come to court  28 and that --  29 Q   Excuse me, I -- did I hear you say that they might not  30 have an opportunity of coming to court?  31 A  As witnesses.  And that they would be the ones who had  32 to speak to the -- if there was going to be a history  33 given or any of those matters, they had to.  34 Q   Every plaintiff has a right to his day in court, isn't  35 that your understanding?  36 A   I don't know what the law is or how the law works.  37 But there was very real concern by the hereditary  38 chiefs that they may not have their opportunity and  39 they were the ones that wanted to speak.  The history  40 of the relationship of the hereditary chiefs and  41 non-Indian society, was that they did not get their  42 chance to speak in many situations and they wanted to  43 have that chance, they didn't want me to be speaking  44 on their behalf in those matters.  45 Q   I will be coming to that.  46 But if I understand you correctly, the questions  47 that I asked at your examination for discovery were 8069  N. Sterritt (For Plaintiffs)  Cross-exam by Mr. Goldie  1 answered truthfully; is that right?  The questions and  2 answers that I just read out to you?  3 A   Yes.  4 Q   Yes.  All right.  Do you remember giving -- being  5 cross-examined on an affidavit before Mr. Justice  6 Cumming?  7 A   You will have to refresh my memory on that.  8 Q   In August, August 18th, 1986, if you would look under  9 tab 3, please.  The occasion was an application to add  10 to the number of chiefs who were being named as  11 plaintiffs, do you now recall that and you attended in  12 the courtroom?  13 A   Yes, I recall this.  14 Q   Now, I have drawn that to your attention because the  15 next question that I want to put to you in your  16 examination for discovery may require you to refresh  17 your recollection of that.  18 Question 64, my lord:  19 "Q   Do you remember me asking you this question --"  20 THE COURT:  This is from the discovery?  21 MR. GOLDIE:  Yes, it's page 18 and I should start at question 63  22 and 64:  23 Q   Do you remember being examined by me before Mr.  24 Justice Cumming August 18 of last year?  25 A   Yes, I do.  26 Q   Do you remember me asking you this question, and  27 I am referring to page 22 of the transcript, and  2 8 I quote:  29  30 'Q   And in your capacity as the president of  31 the Tribal Council you are the chief spokesman  32 for the hereditary chiefs, is that a fair way  33 of putting it?  34 A  That is correct.'  35  36 Q   Do you remember that question and did you give  37 that answer?  38 A   I did not give that answer, I said that could be  39 correct."  40 Now, do you remember giving that, being asked that  41 question and giving those answers?  42 A   Yes, I do.  43 Q   And were your answers true?  44 A  What you have just read is what I said, yes.  45 Q   That's what you said.  But in fact, you did give the  46 answer that I read to you, didn't you?  47 A   The answers that you just read to me, yes. 8070  N. Sterritt (For Plaintiffs)  Cross-exam by Mr. Goldie  1 Q   No, I mean when you were examined before Mr. Justice  2 Cumming you gave the answer, "that's correct" to the  3 question, and I quote, "And in your capacity as  4 president of the Tribal Council you are the chief  5 spokesman for the hereditary chiefs, is that a fair  6 way of putting it?"  Isn't that correct?  7 A   Could I seen the page?  8 Q   Page 22.  The top of the page.  9 A   Yes.  10 Q   And in August of 1986, that was a truthful answer, was  11 it not?  12 A   Yes, it was.  13 Q   But in February, 1987 it required some change?  14 A   Yes.  Prior to me going into examination for  15 discovery, this was brought to the attention of the  16 hereditary chiefs and at that time they gave me --  17 they were very concerned about it, and they gave me  18 clear instructions that -- as to the areas that I was  19 able to speak on.  20 Q   Yes, you were not to give evidence in respect of their  21 territories, those were your instructions?  22 A   Nor to -- nor to -- well, I was not to speak to give  23 an Adaawk, from any house.  24 Q   Well, I put it more broadly, you were not to speak  25 about their territories on your examination for  26 discovery?  27 A   I don't -- that may be true that they said that and  28 that I was not to speak, to give an Adaawk, that they  29 were the ones to speak to that.  30 Q   You were not to interpret their views on their  31 territories or on ownership or jurisdiction?  32 A   I don't recall exactly their words now, but I think  33 that that may be part of their instructions, yes.  34 MR. RUSH:  Now, my lord, I think my friend, in order to complete  35 the aspect of the discovery that he read, that in  36 fairness to the witness he should read what follows  37 from the portion that he selected and that is the  38 portions that follow in questions 65 through to 67.  39 MR. GOLDIE:  I think he has covered that in his present  4 0 evidence.  41 THE COURT:  65 to 67?  42 MR. GOLDIE:  Yes.  43 MR. RUSH:  No he hasn't.  44 MR. GOLDIE:  Well, I am in your lordship's hands, I don't think  45 that those add anything to the evidence which he has  46 now given, in fact his evidence he has now given  47 enhances on that. 3071  N. Sterritt (For Plaintiffs)  Cross-exam by Mr. Goldie  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  MR.  THE  MR.  MR.  COURT:  RUSH:  COURT:  GOLDIE  RUSH:  "A  "Q  MR. RUSH:  Well, my lord, what the discovery indicates is that  at the time of the answer that's given in 64, it's  evident that the transcript of the cross-examination  before Mr. Justice Cumming wasn't before him, he then  looks at it in 66 and then gives an answer with  respect to lines two to five.  Now, in my submission,  if anything turns on the two answers, then it should  be in the context of the fact that in the first answer  he didn't address his mind to the cross-examination  transcript.  Well, where do you see that?  Well —  Does it say that he didn't have the transcript?  In fact he examined the transcript.  Yes, he examined it after that question was given or  after the answer was given.  65, just look at what it  says, 66 "You deny the accuracy of the report; is that  correct?  Hold on, let the witness have a look.  Where  were you referring to, what lines?"  "Lines two to  five, read up there."  Yes, that is correct."  You gave that answer", meaning the lines two to five,  the answer is yes.  And that answer was true in certain areas not in  all areas.  GOLDIE:   The purpose of this was to establish that in  August of 1986, he could speak in one sense but not in  this examination for discovery.  And I am not --  that's the whole purpose of taking him through that.  Well, I think question 65 to 67 are connected with  the other passage that's been read and for that  reason, I think that they should be in evidence.  But  I don't think Mr. Goldie is required to put them to  the witness, on the truth or being part of the  evidence in the case.  Or whatever argument counsel  may make.  GOLDIE:  Well, unless directed by your lordship, I believe,  and I submit I am correct in this, that the evidence  which the witness has now given, fully clarifies the  position that he has taken.  I think that may well be true.  But you have a  specific request to have that evidence put in and Mr.  Rush says that you should do so.  I don't think you  have to do that.  You make it as part of the evidence  in the case.  MR. GOLDIE:  Q   Now, the chiefs who instructed you considerably  MR.  THE COURT  MR.  THE COURT 8072  N. Sterritt (For Plaintiffs)  Cross-exam by Mr. Goldie  1 exceeded in number the named plaintiffs; is that  2 correct?  3 A   Yes.  4 Q   And you indicated in your examination for discovery,  5 and I will direct you to it, if you like, that the  6 number that you recall as instructing you would be  7 between 50 and 100?  8 A   Yes, as I recall, that was -- it was a large  9 gathering.  10 Q   Now, that was the instruction that was given you in  11 respect of what you could say on the examination for  12 discovery, and I believe you stated that the  13 instructions given you in respect to the commencement  14 of the action, were given you by chiefs exceeding in  15 number the 37 who were then named or subsequently in  16 October of 1984 then named; is that correct?  17 A   Yes.  There was, as I recall, meetings and -- meetings  18 where a large number of hereditary chiefs and other  19 persons gave instructions.  20 Q   Now, my question is this -- or first I should say that  21 in the statement of claim, issued in October, 1984,  22 all of the named plaintiffs with the exception of one,  23 are designated as the head chief of a particular  24 house.  Am I right in my recollection of that?  If you  25 turn back to tab 1 -- I am sorry, as being hereditary  26 chief, and if you look at the document right after the  27 affidavit, headed "statement of claim", and would you  28 agree with me that every one of the Gitksan plaintiffs  29 is described as the hereditary chief of a house, the  30 only exception being in paragraph 9, where it's  31 alleged that the plaintiff is a hereditary chief.  Do  32 you see that?  33 A   Yes, I see that.  34 Q   Why is it necessary to obtain instructions from others  35 than the hereditary chief?  And, may I pause and ask  36 you another question.  37 There is a head chief of a house, is there not?  38 A   There is what we call the Miinhl Simoighet, and I am  39 not familiar with the Wet'suwet'en term or equivalent,  40 and it generally is recognized as the ranking chief in  41 the group, but -- and there are chiefs around him who  42 have a great deal of authority and respect amongst  43 each other.  And they work with each other in terms of  44 the matters of the house.  45 Q   Mr. Sterritt, each one of the plaintiffs, Gitksan  46 plaintiffs named in the statement of claim that you  47 have before you, with the exception of the plaintiff 8073  N. Sterritt (For Plaintiffs)  Cross-exam by Mr. Goldie  1 in paragraph 9, is described as the hereditary chief  2 of a house and he is the bearer of the name of that  3 house, isn't he, he or she?  4 A   Yes, in the listing that is in front of me, yes.  5 Q   And each one of those is a head chief?  He or she  6 bears the name of the house, the senior name of the  7 house, isn't that correct?  8 A   Yes.  9 Q   And he or she has the authority to make decisions with  10 respect to territories?  11 A   I believe that in terms of -- what's the date of this  12 statement of claim again?  13 Q   October 23, 1984.  14 A   Okay.  There are names in that listing which includes  15 where they are members of the same house, or of the --  16 they are very close, they work together in terms of  17 their territories, it was not -- there are changes  18 made later that better reflect the nature of the  19 relationship between the hereditary chief and the  20 hereditary chief's house.  21 Q   We will come to that.  But my question to you was,  22 each of these people named, except the plaintiff in  23 paragraph 9, is the head chief and has the power to  24 make decisions?  25 A  Well, I will give you an example.  Plaintiff 38, and  26 plaintiff 39, are -- I am not sure how it's ultimately  27 entered into the subsequent or amended statements of  28 claim, but it wasn't as apparent to us at the time  29 that the members of the House of Sakxum Higookx, and  30 the hereditary chiefs, Sima Diik, are pretty well  31 equally ranking within the house and that they could  32 make a choice as to who would represent them.  So I  33 can't say that the one named is the one who could make  34 that decision, based on that example.  But generally  35 speaking, that's so, but there are -- there also are  36 further -- subsequently there is further information  37 that -- of delineations between houses and that's  38 reflected in later amendments.  39 Q   I know that.  But in October, 1984, you believed that  40 each of these named plaintiffs could speak for the  41 named house?  That's the basis of the statement of  42 claim in 1984, isn't it?  43 MR. RUSH:  There are two questions there.  44 MR. GOLDIE:  All right.  Take them one at a time.  45 Q   In 1984, you believed that each of the named  46 plaintiffs could speak for the named house?  47 A   Yes, at that time. 8074  N. Sterritt (For Plaintiffs)  Cross-exam by Mr. Goldie  1 Q   All right.  2 THE COURT: Is it convenient to adjourn, Mr. Goldie?  3 MR. GOLDIE: Yes, thank you, my lord.  4 THE COURT: 2 o'clock please.  5  6    (Proceedings adjourned for lunch)  7  8  9  10  11 I hereby certify the foregoing to be  12 a true and accurate transcript of the  13 proceedings herein to the best of my  14 skill and ability.  15  16  17  18  19  20 Wilf Roy  21 Official Reporter  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 3075  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 (PROCEEDINGS RECONVENED AT 2:00 p.m.)  2  3 THE REGISTRAR:  Order in court.  In the Supreme Court of British  4 Columbia, in the matter of the Delgamuukw versus Her  5 Majesty the Queen continuing, my lord.  6 Mr. Sterritt, may I remind you, you are still  7 under oath.  8 THE WITNESS:  Thank you.  9 THE COURT:  Mr. Goldie.  10 MR. GOLDIE:  My lord, before I continue, I think I should tender  11 as an affidavit, the -- tender as an exhibit, the  12 affidavit from the Meares Island action, which is  13 under tab 1 of the book of documents.  14 THE COURT:  Is that — tab 1?  15 MR. GOLDIE:  Yes.  It's the affidavit in the — I call it the  16 Meares Island appeal.  17 THE COURT:  Yes, all right.  Any objection?  18 MR. RUSH:  None.  19 THE COURT:  That will be?  20 THE REGISTRAR:  Exhibit 729, my lord.  21 THE COURT:  729?  22 THE REGISTRAR:  Yes.  23  24 (EXHIBIT 729 - Affidavit from the Meares Island  25 Action, Tab 1 of Mr. Sterritt's Book of Documents)  26  27 MR. GOLDIE:  And while the transcript in question is in this  28 proceeding, it might be convenient, my lord, if it was  29 marked as an exhibit.  I'm referring to the transcript  30 of the cross-examination of the witness in chambers  31 before Mr. Justice Cumming of August 18th, 1986, under  32 tab 3.  33 THE COURT:  Well, are you putting the whole thing in?  34 MR. GOLDIE:  Yes, I am.  I should say that all I have got in is  35 not the entire transcript, because the transcript  36 included argument and submissions and so on and so  37 forth.  It is, I believe I'm right in saying, the  38 examination -- the cross-examination on his affidavit  39 and the re-examination by Mr. Rush of Mr. Sterritt.  40 THE COURT:  And is that cross-examination on an affidavit, which  41 affidavit is now Exhibit 729?  42 MR. GOLDIE:  No, no.  The 729 affidavit was solely in the Meares  43 Island case.  4 4 THE COURT:  Yes.  45 MR. GOLDIE:  The affidavit that he is being examined on before  46 Mr. Justice Cumming was an affidavit filed in support  47 of an amendment to the statement of claim, and its 3076  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1  2  3  4  THE  COURT:  5  MR.  RUSH:  6  1  7  8  9  10  11  12  13  14  MR.  GOLDIE  15  THE  COURT:  16  MR.  GOLDIE  17  THE  COURT:  18  MR.  GOLDIE  19  20  THE  COURT:  21  22  MR.  GOLDIE  23  24  THE  COURT:  25  MR.  GOLDIE  26  27  THE  COURT:  28  29  MR.  GOLDIE  30  Q   1  31  32  33  34  35  36  37  38  39  A  40  41  42  43  44  Q  45  46  47  A   '  nature becomes more obvious.  I'll be referring to  that cross-examination again, it will become more  obvious.  Mr. Rush, do you want your re-examination to go in?  Well, my lord, I think that given from what the  development of the cross-examination to this point,  all that should go in are -- is what's contained on  page 22.  Perhaps the opening and page 22, unless  there is some reason to put all of it in.  He -- my  friend says he is going to make reference to it later  on.  Well if that is so, maybe there are some other  pages that should go in, but I don't see the need to  put the whole of it in.  :  I'm content to leave it.  You've only really put one question and one answer.  :  Yes, that's all so far.  All right.  So you want that question and answer?  :  No.  I'm content to leave it until I'm finished  with this transcript.  All right.  Because that question and answer is in  evidence, is it not?  :  Yes, it is.  It was part of his -- it was referred  to in order to --  All right, yes.  :  -- to put the examination for discovery of the  transcript in context.  I don't think you need to mark it as an exhibit  then.  Mr. Sterritt, we will get later to the reasons the  plaintiffs advanced why others were named as  plaintiffs, and when I say "others", those in addition  to those named in the statement of claim of October  23rd, 1984.  But as I understand your evidence so far,  as given just before the noon adjournment, it is that  the 37 Gitksan chiefs named in the October 23rd, 1984  statement of claim, were, with one exception, the head  chiefs of the named plaintiff houses?  That's not what I said.  And I referred to Sakxum  higookx, that's S-A-K-X-U-M space H-I-G-O-O-K-X, in  which they are both Eagle, and that the relationship  between them was not clear and that became clarified  eventually.  But Mr. Sterritt, perhaps you would turn under tab 1  to page 5 of the statement of claim.  Do you have that  in front of you?  Well, I am on page 5. 8077  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 Q   Yes, paragraph 38.  There is no other person named in  2 the paragraph which alleges that the plaintiff, Sakxum  3 higookx, is the hereditary chief of the House of  4 Sakxum higookx and is bringing this action on behalf  5 of himself and the members of the House of Sakxum  6 higookx?  7 A   That's right.  In paragraph 38?  8 Q   Yeah?  9 A   No one else is mentioned.  10 Q   And Sakxum higookxw, the holder of that name, Sakxum  11 higookxw, was on October 23rd, 1984, the head chief of  12 that house?  13 A   Yes.  14 Q   Later on, the factors that you've described, namely  15 the close relationship between two people, led to an  16 amendment; isn't that right?  17 A   Yes.  18 Q   All right.  I'm directing your attention to October  19 23rd, 1984, and I understood that with the exception  20 of Gwis gyen who is alleged to be a chief in a house,  21 paragraph 9, all the others were the head chiefs of  22 the plaintiff houses.  Isn't that self-evident from  23 the way in which the statement of claim is set up?  24 A   Yes.  Except that in terms of Gwis gyen, there was  25 also a situation that was not clear to us as we  26 developed it, that in fact he was also a leading  27 hereditary chief in the House of Gwis gyen, and that  28 there was a House of Gwis gyen.  29 Q   Well, the allegation in the statement of claim is that  30 a chief by the name -- holding the name Gwis gyen, was  31 a hereditary chief of the House of Hax bagwootxw, and  32 was bringing that action on behalf of himself and the  33 other members of that house.  That was the allegation,  34 wasn't it, if you look at paragraph 9?  35 A   Yes.  But as Stanley Williams himself has pointed out  36 in his evidence, there is a House of Gwis gyen and --  37 Q   We are going to come to that, Mr. Sterritt.  I'm  38 asking you to address your mind to October 23rd, 1984,  39 that's what my questions are directed to.  And the  40 exception, paragraph 9, is one that I've just gone  41 through, that a chief bearing another name than that  42 of the house, said that he was bringing the action on  43 behalf of himself and the members of the house.  But  44 everybody else were the head -- the head chiefs, that  45 is to say, the ones bearing the names of the house,  46 bringing the action?  47 A   Yes.  In this situation, yes. 307?  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 Q   Yes.  Now, each head chief can speak for the house  2 whose name he or she bears; isn't that correct?  3 A   Yes.  And if so delegated can also speak for other  4 houses.  5 Q   Yes.  I'm only speaking about the house that he or  6 she -- the name -- the house whose name the chief  7 bears, and you've agreed with me that he or she can  8 speak for that house.  And I put it to you that he or  9 she can speak exclusively for that house if he or she  10 has a mind to?  11 A   To the exclusion of the members of the house, if  12 that's what you are suggesting, then the hereditary  13 chief would consult with other members of the house.  14 And there was a relationship between the two, and they  15 would -- that chief would not on their own, just go  16 ahead and make a decision and take an action without  17 some discussion with the other chiefs.  18 Q   My question wasn't directed to a consultation process.  19 My question was that if he or she decides, he or she  20 has the exclusive right to speak for the house whose  21 name he or she bears?  22 A   No, I don't -- I don't think that's true in the sense  23 that there are situations where the hereditary chief  24 for whom the house is named may speak in some areas,  25 but a member within that house or another high ranking  26 chief, would be the one who would speak on other  27 matters.  28 Q   In this lawsuit, it was the person who bore the house  29 name who was alleged to have represented the house and  30 to speak for the house?  31 A  Well, that's true.  But you are suggesting -- you are  32 placing great emphasis on the word "the", and that's  33 not necessarily implied here.  34 Q   Well, I placed emphasis on the word "the", because in  35 paragraph 9, the draftsman was very careful to use the  36 word "a".  37 MR. RUSH:  My lord, I think if my friend is asking the witness  38 questions about the nature of the system, that's in --  39 I took that to be the major focus of his questions  40 rather than an interpretive line of questions on  41 drafting of the statement of claim.  If that's the  42 line of his questions, surely that's a matter for --  43 surely that's a legal question, not a question of fact  44 for the witness as to how the language of the  45 statement of claim was drafted in particular.  46 THE COURT:  Well I tell you, Mr. Rush, although it may be that  47 the witness knows whether the draftsman took great 8079  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 care to make that distinction, I don't know.  Mr.  2 Goldie's question included that element in the  3 question, and I'm not sure that that's a matter that  4 the witness can pronounce upon.  He may be able to,  5 but we don't really know.  6 MR. GOLDIE:  Well, I was responding to the witness' comment that  7 I was placing great emphasis on the word "the".  8 THE COURT:  Yes.  9 MR. GOLDIE:  What I am relying upon is the witness' statement  10 that he reviewed the statement of claim and as did the  11 hereditary chiefs, and my questions have been related  12 to the organization and powers of chiefs.  13 THE COURT:  I think you need evidence to support the question  14 you asked, Mr. Goldie.  15 MR. GOLDIE:  16 Q   The question I put was that the head chief had the  17 power to speak exclusively, and the witness suggested  18 that was not so, and my question was in respect to  19 this lawsuit.  20 I suggest that in October 23rd, 1984, the position  21 that you accepted and that you believed in was that  22 those chiefs who were named had the power to speak  23 exclusively for their houses.  And, of course, the  24 chiefs in question are all identified, aren't they,  25 they are all particular people?  26 A  Well, I'll use the example of in number 12 of  27 Djogaslee, D-J-O-G-A-S-L-E-E.  28 Q   That's Mr. Walter Wilson?  29 A   Yes, it is.  30 A   The House of Djogaslee incorporates, so to speak, the  31 House of Axtii Djeek, that's spelt A-X-T-I-I space  32 D-J-E-E-K, and he is also speaking on behalf of that  33 house.  It could have been that the House of Axtii  34 Djeek is listed here and --  35 THE COURT:  In paragraph 6, isn't it?  36 THE WITNESS:  Well, it may well be.  Paragraph — no, that's  37 Axtii Hiikw, A-X-T-I-I space H-I-I-K-W.  38 But in fact, Djogaslee, the members of the House  39 of Djogaslee and Axtii Djeek discussed who would be  40 the representative in this action, and that's --  41 that's how that appears.  But it equally could have  42 been the other way.  43 MR. GOLDIE:  44 Q   Well maybe it could, but from start to finish Mr.  45 Walter Wilson speaks for the house of his name,  46 doesn't he?  47 A   Yes.  But perhaps -- I guess the point I'm trying to 8080  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 make is that it is understood by Djogaslee that he is  2 also going to be speaking on behalf of Axtii Djeek.  3 Q   There is no such allegation of that in the present  4 statement of claim, is there?  5 A   Not there.  But that is the information or the -- that  6 was the way that they intended to deal with the  7 matters affecting both of them, and there is, as  8 Walter Wilson on the stand described -- or in  9 cross-examination mentioned, he mentioned how the  10 house --  11 Q   Yeah.  12 A   -- was originally one name and then became two, and  13 how they worked together.  14 Q   So there is no consistency?  15 A  Well, I think there is some consistency in that there  16 are a number of hereditary chiefs who did the same  17 thing.  18 Q   We can't tell that from the October 23rd, 1984  19 statement of claim, can we?  20 A   I'm not sure that it's necessary to be able to tell  21 that at that time -- it was -- the lawyers framed the  22 statement of claim in a way to include all the  23 hereditary chiefs and their territories.  And  24 subsequently, with more work, they determined that  25 that had to be further defined.  26 Q   Well we'll come to the more work business, but do you  27 say now that in October 23rd, 1984, the chiefs named  28 in the statement of claim were only those named whose  29 houses comprised the whole of the territory claimed by  30 the Gitksan people?  There are 37 houses, do you say  31 that those 37 houses included the whole of the  32 territory claimed by the Gitksan people on October  33 23rd, 1984?  34 A   Yes, I do.  35 Q   And from April 1985 until September 1986, there were  36 no change in the plaintiffs, was there?  37 THE COURT:  Sorry, from April?  38 MR. GOLDIE:  April '85 to September '86, there are no change in  39 the plaintiffs?  40 MR. RUSH:  Well, my lord, if there are two statements of claim,  41 that one contains further amendments, perhaps that  42 should be suggested to the witness.  I'm sure that he  43 doesn't have at his finger tips all the amendments  44 that occurred.  45 MR. GOLDIE:  Well, I can go on.  We can deal with that.  But it  46 is clear that there are -- that there were changes  47 made and plaintiffs were added in October of 1986, 8081  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 isn't it, and I'm going to refer you to Mr. Ryan's  2 affidavit and to the proposed amended statement of  3 claim which is attached to it, under tab 5.  4 THE COURT:  Well, your question really is that you said from  5 April 1985 to September '86, there were no changes.  6 MR. GOLDIE:  I don't have the September '86 amendment with me,  7 my lord, but I do have attached to Mr. Ryan's  8 affidavit, the October amendment, and I'm going to  9 confine my questioning to that.  10 THE COURT:  All right.  October of what year?  11 MR. GOLDIE:  '86.  12 THE COURT:  All right.  13 THE WITNESS:  Can you repeat your question, please?  14 MR. GOLDIE:  15 Q   There were plaintiffs added to the statement of claim  16 in October of 1986?  17 A   Yes.  18 Q   Now, Mr. Sterritt, I don't suppose you are suggesting  19 then, that in October of 1984, you knew of chiefs who  20 claimed territories who were not named?  21 A  Well, if we cross reference, going back to tab 3, I  22 think that's the one -- which tab was the last  23 information at?  Tab 1.  24 Q   Are you looking for the October 23rd, 1984 statement  25 of claim?  26 A   Yes.  27 Q   Yes, it's tab 1.  28 A   Okay.  On page 2 of tab 1, paragraph 6, Axtii Hiikw,  29 A-X-T-I-I space H-I-I-K-W, is the hereditary chief.  30 And on page 1 of this amended statement of claim of  31 tab 5, the same territories are there represented by  32 Tenimgyet, T-E-N-I-M-G-Y-E-T.  33 Q   But that's because Axtii Hiikw, Mr. Jeffrey Morgan,  34 who was the individual named in paragraph 6 in October  35 23rd, 1984, had died in the meantime, isn't that  36 right, and Tenimgyet had succeeded to his seat, if not  37 his name?  38 A   Yes.  And in the same -- on the same page, referring  39 once again to tab 1, page 1, paragraph 4, the  40 plaintiff Lelt is the hereditary chief of the House of  41 Lelt.  42 Q   That's Mr. Fred Johnson?  43 A   Yes.  44 Q   Yes?  45 A  And on page 1 of tab 5, no paragraph number, but one,  46 two, three, four paragraphs down:  "Lelt, also known  47 as Fred Johnson, suing on his own behalf and on behalf 8082  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 of all the members of the Houses of Lelt and Luulak,"  2 Luulak underlined.  In the foregoing one, Lelt would  3 have been representing the house and the territories  4 of Luulak, and it was just an inadvertent omission  5 that Luulak wasn't mentioned in October 1984.  6 MR. RUSH:  My lord, I have to object to that.  I don't think  7 that that is a question directed at drafting, and I  8 don't think that's a fair question to put to a witness  9 on the structure and wording of the pleadings.  10 MR. GOLDIE:  Well, let me ask the question.  11 THE COURT:  All right.  12 MR. GOLDIE:  13 Q   How do you know that Fred Johnson represented -- by  14 the way, what is the English name of Luulak?  15 A   I believe it's -- it's Sandra Morgan or -- I don't  16 recall, but I think it's Sandra Morgan.  17 Q   Yes.  Do you say that Lelt represented Sandra Morgan  18 because she was a sub-chief in the House of Lelt?  19 A   Lelt would have represented Sandra Morgan not  20 necessarily because she might have been a sub-chief,  21 but because they are both Lax seel or Frog, that's  22 L-A-X space S-E-E-L, and he would have spoken on  23 behalf of the Lax seel territories which would have  24 included hers.  And there may be other subdivisions  25 that appear as well there, but that's one that I can  26 think of right now.  But not necessarily because she  27 was a sub-chief, no.  Luulak is a high-ranking name  28 in —  29 Q   The House of Lelt?  30 A   In Kitwanga.  31 Q   No, in the House of Lelt; isn't that correct?  32 A   I'm not sure about that.  I would have to -- I don't  33 recall.  34 Q   Let me put it this way:  In 1984, you were aware that  35 there were sub-chiefs in the named houses; would that  36 be correct?  37 A  Well, I've always been aware that there are sub-chiefs  38 in houses, yes.  39 Q   Yes.  And you knew that in 1984?  40 A   Yes.  41 Q   Yes.  And you believed, did you not, that the chief  42 who bore the name of the house could speak for those  43 sub-chiefs?  44 A  We are talking about drafting here and I don't know on  45 what basis the lawyers may have been talking to the  46 members of that house, or in which way they were  47 framing who represented who. 8083  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 Q   Let's go back to the --  2 A  And I'm talking about the houses in that case.  3 Q   Yes.  Let's go back to Luulak.  In October of 1984,  4 did you believe or did you know that Luulak had  5 territory in her own right?  Did you know that?  6 A   I -- in doing the work that I did with Stanley  7 Williams and others, I was aware that -- and I am  8 aware that there is a territory that Luulak is  9 responsible for, and that territory could have been  10 part of the House of Lelt or it could be part -- or it  11 could be that there is a separate House of Luulak.  12 Q   Well, you just a few minutes ago told me that you  13 believed that the 37 named houses comprised all of the  14 territory claimed by the Gitksan people in this action  15 as of October 23rd, 1984.  Does it not follow that you  16 believed in October 23rd, 1984 that Lelt spoke for  17 Luulak?  18 A   Yes.  But Lelt could have been speaking on behalf of  19 Luulak even if there was a House of Luulak.  20 Q   All right, we'll come to that.  The -- I want to touch  21 on the chiefs that you say instructed you in 1984 to  22 launch this action.  You recall telling me that that  23 was done on what, 19 -- or January or July?  24 A  What I said this morning was that it was in 1984, and  25 I believe it was in the summer of 1984.  26 Q   Right.  And did those include these chiefs, Geel,  27 Walter Harris, to your recollection?  28 A   In the summer of 1984?  29 Q   Yes?  30 A  Well, as I -- I need the overlays and the maps just to  31 reference it.  32 THE COURT:  Why do you need that?  33 THE WITNESS:  Because of the — as to the timing of the  34 exclusion of the Geel territory.  35 MR. GOLDIE:  36 Q   All right.  Well, then, this is before the action was  37 commenced.  I'm talking about what -- the action was  38 commenced in October, and I'm asking you if Walter  39 Geel -- or Walter Harris I should say, was one of  40 those who instructed you to commence the action?  41 A   Yes.  And what I would -- I would like to see which  42 map that appears on, and --  43 Q   Well, it is not the map of October 23rd, 1984.  Does  44 that suggest that he wasn't -- he didn't instruct you?  45 A   I don't recall the date of the meeting with the House  46 of Geel, that's G-E-E-L, where the family members met  47 Don Ryan and myself.  They had questions for us, they 8084  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1  2  3  4  5  6  7  8  9  Q  10  11    I  MR. RUSH  12  13    I  MR. GOLD  14  Q  15  16  A  17  18  19  20  21  22  23  24  Q  25  26  27  A  28  29  Q  30  31  A  32  33  34  35  Q  36  37  A  38  39  40  41  Q  42  A  43  Q  44  A  45  Q  46  47  A  had -- one of the problems they had was that they had  a number of family members in Vancouver who came home,  they brought them together, they asked Don and I to  come in and to talk to them, and then they asked us to  excuse ourselves while they discussed the action.  And  then when they were -- when they had discussed it,  they called us back and informed us as to their  decision, and I don't recall the date of that meeting.  All right.  What about Chris Skulsh, was he one who  instructed you?  You are talking now in the period prior to the filing  of the statement of claim in the first instance?  The meeting of the chiefs that instructed the witness  to commence the action?  Chris -- there was a house meeting.  Chris Skulsh is  Gwiiyeehl, G-W-I-I-Y-E-E-H-L, and there was a house  meeting at -- which I attended, and I don't recall the  date of that and I don't recall whether in one of the  larger meetings Chris was present, but there was a  house meeting, and Chris also provided instructions to  the lawyers that he was going to proceed, but I don't  recall the date.  Well, I'm asking you if you recall him being at a  meeting, if -- when you received your instructions,  that's all I'm directing your attention to?  Well yes, I did attend a meeting with him and family  members.  All right.  Now Alvin Weget, was he one who gave you  instructions in the summer of 1984?  Well, my recollection is that Alvin was present at a  number of meetings and that he -- that he was amongst  the people who gave instructions to proceed with the  action.  Eli Turner?  If you don't recall, I'm not being  critical of you.  Well the reason that I'm wondering, because Chris --  or pardon me, Eli became very sick and I'm trying to  remember at what point it was.  And he has been sick,  but I don't recall, but --  All right.  Stephen Morrison?  Pardon?  Stephen Morrison?  Yes.  Are we talking about 1980 --  We are talking about 1984.  Was he deceased by that  time?  Yes. 8085  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 Q   All right.  Jeffrey Harris Senior was deceased by that  2 time?  3 A   No.  4 Q   Did he give you instructions?  5 A   Yes, he did.  6 Q   And William Blackwater did, or did he?  7 A   Yes, he did, yes.  8 Q   How about Steve Robinson?  9 A   Yes, he did.  10 Q   And Wallace Danes?  11 A   I don't recall whether Wallace did.  He is a member of  12 a house and he is a sub-chief in a house.  13 Q   Yeah.  Pete Muldoe?  14 A   Yes.  15 Q   Mary McKenzie?  16 A   Yes.  17 Q   Stanley Wilson?  18 A   Yes.  19 Q   Kenneth Muldoe?  20 A   Yes.  21 Q   Ralph Pierre, or was he deceased by that time?  22 A   No, Ralph Pierre is still alive.  23 THE COURT:  I'm sorry, Mr. Goldie, I have Stanley Williams  24 and —  25 MR. GOLDIE:  Stanley Wilson.  26 THE COURT:  Wilson, sorry.  27 MR. GOLDIE:  2 8 Q   And then Kenneth Muldoe and Ralph Pierre.  Was he  29 amongst those who gave you instructions?  30 A   I believe Ralph did.  I don't recall Ralph.  31 THE COURT:  Sorry, you believe who did?  32 THE WITNESS:  Ralph Pierre.  33 THE COURT:  Oh he did, yes.  And you don't remember about who?  34 THE WITNESS:  Well, him.  I believe he did, I don't recall.  35 THE COURT:  All right.  What about Ken Muldoe?  36 THE WITNESS:  Yes.  37 THE COURT:  And Sam Wilson?  38 THE WITNESS:  Stanley Wilson, yes.  39 MR. GOLDIE:  40 Q   And Albert Tait?  41 A   Yes.  42 Q   Right.  43 Now, the -- now, I want to go back to 1975, and  44 that was the period in which you were instructed by  45 some of the hereditary chiefs to pursue land claims;  46 is that right?  47 A  Myself and others, yes. 8086  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 Q   Yes.  And I want to read to you questions 138 to 143  2 of your examination for discovery, and volume 1, my  3 lord?  4 A   Before I go on, I should mention that there were far  5 more than the ones you listed that provided  6 instructions.  7 Q   I just asked you if they were amongst those who gave  8 you instructions?  9 A   Yes.  10 Q   Question 138:  11  12 138  Q  "So it was in 1975 that a number of the  13 chiefs, including some who are now  14 plaintiffs in this action, requested you  15 to undertake research into land claims?  16 A  The date is correct.  The instruction was  17 to get the land claim underway."  18  19 Were you asked that question and did you give that  20 answer?  21 A   Yes, I did.  22 Q   And the answer was true?  23 A   Yes.  24 Q   And is true today?  25 A  Well, today I'm -- I'm a researcher.  26 Q   No, you may have misunderstood me.  I'm asking you if  27 there is anything which would have -- that has come to  28 your attention since you were asked that question in  29 February of 1987, which would cause you to correct it  30 today?  31 A   No.  In 1970?  32 Q   Five?  33 A   Five?  The hereditary chiefs met and wanted their land  34 claim to be advanced.  35 Q   Yes.  In your words, "to get the land claim underway"?  36 A   That's the words I used, yes.  37 Q   Yes.  Question 139:  38  39 139  Q  "Where and under what circumstances were  40 you given this instruction?  41 A  In the Village of Kitwanga.  42 140  Q  Was there a meeting there?  43 A  The hereditary chiefs called a meeting.  44 141  Q  And your recollection is that something  45 between 50 and 100 attended that meeting?  4 6                        A  Yes."  47 8087  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 Were you asked those questions and did you give those  2 answers?  3 A   Yes, I did.  4 Q   And the answers were true?  5 A   Yes.  6 Q  7 142  Q  "Who was the chief spokesman at the  8 meeting?  9 MR. RUSH:  For what?  10 MR. GOLDIE:  For the purpose of giving Mr.  11 Sterritt instructions.  12 A  In a situation like that, each hereditary  13 chief speaks.  14 143  Q  Yes.  15 A  There is no chief spokesman."  16  17 Did you give those answers to those questions and were  18 the answers true?  19 A   Yes.  20 Q   Now, I suggest to you in 1975, that virtually no one  21 knew where the territories were?  22 A  Well, you are wrong about that.  The hereditary chiefs  23 know where their territories are, they knew in 1975  24 where their territories are and where their boundaries  25 are, they knew the geographical features within them.  26 That's -- that's not a correct statement, Mr. Goldie.  27 Q   I suggest to you that those chiefs who were aware of  28 their territories relied upon the registered traplines  29 as evidence of the boundaries of their territories?  30 A   The hereditary chiefs understood from the 1930's that  31 the traplines -- and they have given this information  32 in evidence -- that the traplines -- that if they  33 didn't register their territories as traplines, that  34 they would lose them, and that the Department of  35 Indian Affairs and the Provincial Wildlife authorities  36 were going to map those properly and they would be  37 registered as traplines and then they would not lose  38 their territories.  The -- and that was the basis for  39 the statement they made in 1975.  40 Q   Which statement -- what statement did they make in  41 1975?  42 A  What they said to me in 1975 when they gave those  43 instructions.  44 Q   Gave what instructions?  45 A   There was a resolution at a meeting in Kispiox where  46 the hereditary chiefs incorporated that language into  47 the resolution. 8088  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 Q   Yeah.  You're referring to tab 2 of the book of  2 documents in front of you?  3 A   I would have to look.  4 Q   Well, haven't you looked before?  5 A   I haven't seen this.  6 Q   All right.  Well look at it now then.  Is that what  7 you are referring to?  8 A   Yes, it is.  9 Q   And that recites:  10  11 "Whereas the hereditary Gitksan Chiefs from the  12 Kispiox and Skeena Valleys are aware that  13 land claims and aboriginal rights are  14 becoming a major issue amongst the Indian  15 people of B.C. and;"  16  17 You can confirm that that was so on April the 3rd,  18 1975?  19 A   Yes, I can.  2 0 Q   And continuing:  21  22 "Whereas the Nisga'a tribes are claiming certain  23 lands which are rightfully the lands of the  24 Gitksan, be it hereby resolved that we  25 direct our elected representatives on the  26 Gitksan-Carrier Tribal Council to make land  27 claims a priority issue, and ensure that the  28 Gitksan's hereditary lands as defined by all  29 their registered traplines be made known to  30 the B.C. Land Claims Co-Ordinator, Mr.  31 Philip Paul, and to the Nisga'a people."  32  33 Now, was that the terms of the resolution that  34 you described a few minutes ago?  35 A   This was the resolution that I was referring to and it  36 was in the nature of what I've just described a few  37 moments ago, that the hereditary chiefs understood  38 that the traplines would represent their traditional  39 lands, a situation which turned out not necessarily to  40 be true.  41 Q   Well, Mr. Sterritt, this resolution was prompted by  42 the hereditary chiefs' concern over the Nisga'a claim,  43 wasn't it?  44 A   No, not entirely.  The — at that time, in 1973 —  45 Q   '75, I believe?  46 A   No, I'm just going back.  In 1973, the Calder case had  47 come down, the judgment, and a policy had been 8089  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 implemented in the federal government to negotiate  2 land claims, and there was -- the purpose of the  3 motion was twofold, was both to deal with the fact  4 that the Nisga'a who are our neighbours were  5 proceeding with negotiations, and that -- that the  6 Gitksan and -- Gitksan and the Carrier people would  7 also begin to advance their land claim which was part  8 of the discussions which were going on in these other  9 meetings that I have referred to.  And while not all  10 of the hereditary chiefs were present, there was a  11 number of them, and these -- this was a resolution  12 that they wanted to have brought forward.  13 Q   Mr. Sterritt, the hereditary chiefs intended you to  14 advance their registered traplines as against the  15 Nisga'a claim; isn't that right?  16 A   No, that's not -- that is not what they had in mind.  17 Q   Well excuse me.  Is there any other document that you  18 can provide us with that expresses their intention  19 other than the one before us?  20 A  What the —  21 Q   Can you answer that question, please?  22 A  What the hereditary chiefs, in terms of the discussion  23 that went on around this, this motion --  24 Q   No, excuse me.  Before you answer that or deal with  25 that, I asked you, is there any other document that  26 expresses the intention of the hereditary chiefs than  27 this -- other than the document before you dated April  28 3rd, 1975?  29 A   The hereditary chiefs were -- felt that in terms of  30 what they were directing me and Gary Patsy --  31 Q   Well, my lord, I ask that the witness be directed to  32 answer that question.  Because if there is another  33 document, I want to defer the cross-examination so  34 that I can examine it.  35 THE COURT:  Can you answer that question first, Mr. Sterritt?  36 A  Well, yes.  No, there is not another document but  37 there was considerable discussion around this motion,  38 and there were hereditary chiefs who believed that the  39 trapline maps at the Department of Indian Affairs  40 represented their hereditary lands, that they  41 described their hereditary lands properly, and that  42 was one of the reasons that about that time, I can't  43 say exactly when, I did go to the Department of Indian  44 Affairs and look at those maps.  45 MR. GOLDIE:  4 6 Q   And they are --  47 A   I also — 8090  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 Q   They are the linen maps, three of which we saw here  2 the other day?  3 A   Yes.  And what I also did at the same time, was I  4 obtained a list -- a listing of all of the trapline  5 holders, and I -- I thought that this would be a way  6 to proceed.  I took that listing and I sat down with  7 Ben McKenzie, Luutkudziiwus,  8 L-U-U-T-K-U-D-J-I-I-W-U-S, (sic) and his wife,  9 Gyolugyet, G-Y-O-L-O-G-E-T, (sic) Mary McKenzie, and I  10 went right through that list and found out from that,  11 that many of the names that were on traplines were  12 there because of their father, they were there because  13 of marriage, there were people who did not -- who  14 maybe over even a longer period of time, through the  15 paternal -- how should I say it, the paternal  16 inheritance line that was being implemented by the  17 Department of Indian Affairs, did not belong on  18 traplines, did not belong on territories.  And now  19 that you bring that to mind, I do have that -- that  20 listing, which would be an indication of that.  21 Q   Well it might be helpful if you produced that.  22 A   I will produce that.  23 Q   And there are other problems with the traplines,  24 weren't there, there were non-Gitksan holders?  25 A   Yes.  26 Q   And a number of Indian people had sold their  27 traplines, hadn't they?  2 8 A  A few.  29 Q   Yes.  30 A  Well, I should qualify that.  There were situations  31 where non-Indian people who were trapping along the  32 Telegraph Trail, and as they checked the line going  33 between the cabins, had started to trap, and the  34 hereditary chiefs who owned those territories didn't  35 really object, but some of those people --  36 Q   That's speculation on your part, isn't it?  37 A  Well, I've read the correspondence --  38 Q   Yeah.  39 A   -- in the trapline files, and no, it's not  40 speculation.  41 Q   Well it's -- may I put it this way:  What you are  42 talking about occurred long before your time?  43 A   People who were on those traplines, I knew -- I knew  44 those people and they were going to those traplines in  45 the late 1940's.  I'm aware of those people, it's not  4 6              before my time.  47 Q   Yeah.  Those are the non-Gitksan people amongst them? 8091  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 A  Well, what I didn't explain was that they ended up --  2 yes, they are non-Gitksan, they are white people, and  3 they ended up with traplines generally along the  4 Telegraph Trail, but not exclusively.  But the ones  5 I'm referring to were along the Telegraph Trail.  6 Q   Yes.  But I suggested to you that another reason why  7 the trapline map -- or the traplines as a basis for  8 the claim that is made in this litigation was  9 unsatisfactory, is that a number of Indian holders had  10 sold their traplines; isn't that correct?  11 A   I think that I would have to -- I don't think you  12 could say a number.  I think it was a few.  13 THE COURT:  I'm sorry, did you say non-Indians had sold?  14 MR. GOLDIE:  15 Q   I'm sorry.  The Indians had sold to non-Indians, yes.  16 Now looking at the document under tab 2, that's  17 Exhibit 116 in this action.  Were you aware of that?  18 A   Under tab 2?  19 Q   Yes?  20 A  And you are referring to the single page --  21 Q   Yes?  22 A   -- document?  23 Q   Resolution.  24 A   Okay.  You are -- what are you asking?  25 Q   It's Exhibit 116.  Were you aware that that -- it has  26 been filed as an exhibit in this action?  27 A   No, I'm not aware of that.  28 Q   All right.  Of the chiefs who are listed there, you  29 have identified, I believe, nine as amongst those who  30 gave you instructions in 1984?  31 A   Yes.  32 Q   Now between 1975 and 1984, you had satisfied yourself  33 that the traplines did not provide the means of  34 identifying the Gitksan's hereditary lands; is that a  35 fair statement?  36 A  When I reviewed the trapline maps, the boundaries that  37 appeared on the trapline maps were straight lines,  38 they didn't necessarily follow heights of land.  Just  39 from the -- both the review of the maps and the review  40 of the -- of the listing of names that was in the care  41 of the Department of Indian Affairs, it was obvious  42 that there were a number of problems in terms of that  43 perception of the hereditary chiefs.  44 Q   Yes.  By the way, do you know who prepared that  45 resolution?  46 A   There was a number of people there who asked me to  47 write it.  I wrote it and then they looked at it and 8092  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 then they made some minor changes, one of them being  2 the part about the registered traplines.  3 Q   That was an insertion by the chiefs themselves?  4 A   By a chief who was under the impression that the  5 registered traplines described the hereditary lands.  6 Q   And the rest of those -- and the remainder of the  7 chiefs adopted that impression for the purposes of  8 this resolution?  9 A   Yes.  10 Q   Now -- so you were aware of the Nisga'a claims long  11 before the meetings that took place that you described  12 in your evidence in chief?  13 MR. RUSH:  What meetings?  14 THE WITNESS:  Which meetings?  15 MR. GOLDIE:  The meetings that took place at Canyon City and  16 Aiyansh.  17 MR. RUSH:  You mean the meetings with the Nisga'a people?  18 MR. GOLDIE:  19 Q   That's right.  20 That's so, isn't it?  You knew of the Nisga'a  21 claim at least by April 3rd, 1975, and possibly before  22 that?  23 A   Yes.  24 Q   Yes.  Now, I think you've already confirmed this, but  25 one of the first things you did was to go to the  26 Department of Indian Affairs' office at Hazelton and  27 see if you could obtain the trapline maps to which  28 this resolution refers?  29 A   Yes.  30 Q   And those were a number of linen maps of which we have  31 seen three, Exhibit 718, 719 and 720; is that right?  32 A   Yes.  But there were also in the trapline files of  33 individuals, maps, Xerox copies, if I recall, which  34 were supposed to be a representation of the trapline,  35 and didn't necessarily correspond to the maps that  36 were -- to the linen -- so-called linen trapline maps.  37 Q   Well, the linen trapline maps went back quite a long  38 way, didn't they?  39 A   Yes.  They -- I didn't know how far back, but --  40 Q   No.  But you identified in your examination-in-chief,  41 some writing which appeared to be dated in the 30's?  42 A   Yeah.  43 MR. RUSH:  I think it was '40's -- there was one reference to a  44 day which was 1946.  45 MR. GOLDIE:  46 Q   I think, with respect, the reference I'm speaking  47 about is the Bob Patrick & Company, which the witness 8093  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 talked about at some length, and I think that's --  2 that was in the '30's, was it not?  3 A   No.  I think that was in the -- I believe that  4 reference was in the '40's.  5 Q   I see, all right.  The -- but you collected all of the  6 maps from the Department of Indian Affairs at that  7 time?  8 A   I went and borrowed them and reviewed them -- I  9 reviewed some of them at the Department of Indian  10 Affairs, I took either some or all of them to my house  11 and I reviewed them for, oh, over a couple of  12 evenings, and then I returned them to the Department  13 of Indian Affairs.  14 Q   How did they come into the possession of the  15 plaintiffs?  16 A   In the early 1980's, the — the District Manager  17 advised me that a lot of files were being sent to  18 either Vancouver or Ottawa, and when I learned of  19 that, I said that I thought that there was no way that  20 they should leave the area, and asked that they be  21 turned over to the tribal council.  22 Q   And they were?  23 A   Yes.  24 Q   Why did you feel there was no way they should leave  25 the area?  26 A  Well, because of the age of the maps.  2 7 Q   Um-hmm?  28 A   Because of the notations that appeared along creeks,  29 and in terms of Gitksan names and Wet'suwet'en names  30 along creeks, lakes or mountains.  Because of a lot of  31 the notations that were added separate from geographic  32 features.  33 Q   By unknown persons?  34 A   Yes.  I didn't know who had added those.  35 Q   Do those maps have any particular significance today?  36 A  Well, I think they have a historical value.  I think  37 they represent the activities of the Department of  38 Indian Affairs over a period of time, and I think they  39 also demonstrate that the hereditary chiefs from time  40 to time must have gone in to talk to the Indian agent  41 to inform him of the names of features.  42 Q   Yes.  But in terms of present day significance, they  43 have no bearing on the claims to the territories that  44 you are making -- or are being made by the plaintiffs  45 in this action?  46 MR. RUSH:  My lord, I think my friend should try to be a little  47 more specific about the question "present day 8094  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 significance."  I think that certainly Mr. Sterritt  2 has just said in one way in which there is  3 significance to the maps, and I think if my friend is  4 trying to get at something else he should be a little  5 more specific to help.  6 THE COURT:  Can you put your question again, Mr. Goldie.  7 MR. GOLDIE:  8 Q   I'll ask this question:  What other significance are  9 these maps?  10 A  Well, I guess over the past year I've become a little  11 more conscious of the significance of the words  12 "hearsay" or "hearsay evidence" and "corroboration of  13 information" and so on.  So the value that I see in  14 the maps is that there is corroborative evidence on  15 those maps of information that has been provided by  16 witnesses directly to me, or -- who are now deceased,  17 and some of whom are still living.  18 Q   And who may be in turn relying upon those maps; is  19 that what you are telling me?  20 A   Oh no, no.  No, that's wrong.  The -- the fact that  21 David Gunanoot would tell me that over a long period  22 of time that the House of Nii Kyap owns Thutade Lake  23 and the area around it, is -- is -- stands on its own.  24 But I believe that -- I believe that it's in the  25 last -- within the last two and a half or three years  26 that I looked and -- that I read that note on those  27 maps.  In other words, David Gunanoot in 19 -- it's  28 one of my earliest notes, David Gunanoot totally  2 9 independently came to me and said that the boundary  30 that Nii Kyap -- Haimadim, Nii Kyap own the Thutade  31 Lake along the north shore.  And I believe it was --  32 could be within the last two years but possibly within  33 the last three years that I looked at that note  34 carefully and read it.  I had not read that note or  35 taken the -- gone to the trouble of trying to read  36 that note which is not that hard to follow.  37 Q   Yeah.  38 A   So no, no, that is not true, Mr. Goldie.  39 Q   Well you may have misunderstood my question, Mr.  40 Sterritt.  I said the chiefs may have been relying  41 upon the map.  I'll take the example you just gave me.  42 Mr. Gunanoot had trapped in his lifetime?  43 A  Mr. Gunanoot trapped?  44 Q   Yes?  45 A   He gave quite a bit of evidence about that himself,  46 yes.  47 Q   Yes, I know, Mr. Sterritt, I just wanted to establish 8095  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 that you were aware of that.  You are aware that Mr.  2 Gunanoot trapped in his lifetime?  3 A Yes.  4 Q Well before the time you knew him?  5 A Oh, yes.  6 Q Yes.  And you are unable to say whether Mr. Gunanoot  7 went into the Department of Indian Affairs' office in  8 Hazelton to confirm his trapping rights?  9 A  Mr. Gunanoot —  10 Q   Well, are you able to deny that Mr. Gunanoot may have  11 done that?  12 A   I don't know.  13 Q   No?  14 A   I don't know.  15 THE COURT:  Can we take the afternoon adjournment?  16 MR. GOLDIE:  All right.  Thank you.  17  18 (PROCEEDINGS ADJOURNED AT 3:00 p.m.)  19  20 I hereby certify the foregoing to be  21 a true and accurate transcript of the  22 proceedings herein transcribed to the  23 best of my skill and ability.  24  25  26  27  28  29 Toni Kerekes,  30 O.R., R.P.R.  31 United Reporting Service Ltd.  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 3096  N. Sterritt (For Plaintiffs)  Cross-exam by Mr. Goldie  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  NEIL STERRITT, Resumed:  CROSS-EXAMINATION BY MR. GOLDIE:  (continued)  THE COURT:  Mr. Goldie?  MR. GOLDIE:  My lord, I am going to ask for the production of  the remaining trapline maps. Not all of them, I have  written to my friend indicating the ones that I would  like to see.  THE COURT:  The old linen maps, are they?  MR. GOLDIE:  Yes, the linen maps.  The counterparts of three  that have been exhibited.  And what I would suggest  that my friend bring them here, if that's his wish,  and if I can't -- if it's not convenient for me to  examine them here, I will take them sort of one at a  time overnight so that I can examine them at that  time.  I have examined them in Smithers and I have  determined which ones are the ones I would like to  have in the courtroom.  Q   Mr. Sterritt —  MR. RUSH:  I think my friend already knows we have made efforts  to bring and have brought the linen maps here and I  should point out that my friend has examined the maps  that he has indicated that he would like to have  produced in court and photograph them -- and I will  leave that out -- and they are available for my friend  now to look at.  I think it would be convenient for us  if we knew precisely which ones he wanted to take  away, because we are looking at them as well.  MR. RUSH:  The photography was done by counsel and --  THE COURT:  Not personally, I hope.  MR. GOLDIE:  And proves that a shoemaker should stick to his own  last.  The photographs were marginally helpful.  Q   But whatever the situation was in 1975, in terms of  the trapline maps, and we will come back to those,  when you wrote out the first draft of that resolution,  Exhibit 116, at the behest of the chiefs, you were  doing so as the person nominated to get, as you put  it, the land claims underway?  A   It was probably a little less noble than that.  I  think I was just someone in the group who they called  upon to write.  I couldn't make that connection,  although it was something that I had been asked to do.  I mean, the larger job that you're talking about.  Q   The -- however it happened, you were the person who  did go to the Department of Indian Affairs' office and 8097  N. Sterritt (For Plaintiffs)  Cross-exam by Mr. Goldie  1 got the maps out and took them home and examined them?  2 A   Yes.  3 Q   Yes.  And whether it was on April 3rd, 1975 or  4 sometime later in 1975, you were recognized as the  5 person who was to get the land claims underway?  6 A   No.  There was -- I was one of the persons.  There was  7 Gary Patsy and Allan Mason, who were -- it was a --  8 there was three of us who were -- I can't remember the  9 term, co-chairmen or co-whatever, who were supposed to  10 carry out that responsibility.  11 Q   Yes.  I was using the words that you used in your  12 examination for discovery, you recognized that, did  13 you not?  14 A   Yes, but I think I also, somewhere in there, referred  15 to the fact that there was three persons.  Not just  16 one.  17 Q   Well, you may have, I don't recall the third person,  18 but you may have.  19 But as to you, from 1975 on, the hereditary chiefs  20 were aware that that was one of the things you were  21 doing, getting the land claims underway?  22 A  With the comment that I was involved in a full-time  23 job, doing other things, and this was something that I  24 did sometimes in the evenings and sometimes on  25 weekends, but not on a full-time basis.  26 Q   Well, I am sorry, I wasn't talking about the amount of  27 time you spent at it, I was talking about the position  28 or the responsibility which you had assumed.  They had  29 asked you to get the land claims underway and you had  30 accepted, had you not?  31 A   Yes, I did.  What — I'd like to look at that  32 resolution just for a second.  33 This resolution deals with the Tribal Council, not  34 with -- not specifically me, and Gary Patsy and Allan  35 Mason who were the other two persons who were  36 identified as carrying out that responsibility.  37 Q   All right.  Well, let's take the three of you, within  38 the communities you three were the people who had  39 accepted the responsibility of getting the land claims  4 0              underway?  41 A   Yes.  42 Q   And when a hereditary chief was approached by you  43 there wasn't any doubt that you were approaching him  44 in discharging that responsibility, you were getting  45 the land claims underway when you asked them about  46 territories or place names or anything like that?  47 A   I think that -- yes, I think that that's true to the 309?  N. Sterritt (For Plaintiffs)  Cross-exam by Mr. Goldie  1 extent that I was -- that's not all that I was doing.  2 I was interested in a lot of things and I spent a lot  3 of time then, for example, days on weekends, with my  4 uncle learning to make snowshoes.  5 Q   Nothing in my question was intended to suggest that  6 you were devoting 100 percent of your time.  My  7 question was:  When you approached a high chief and  8 asked him about his territory, he would know that you  9 were discharging one of your responsibilities, which  10 was to get the lands claims underway, wouldn't he?  11 A   Yes, yes, that's true.  12 Q   Because high chiefs don't answer questions about their  13 territories from people who just have an idle  14 curiosity, do they?  15 A   Yes, I would -- that would be true.  16 Q   And that would be so from -- when I say that would be  17 so, that the people to whom you spoke from 1975 on,  18 that would be -- well, that's sufficient for my  19 purpose now.  20 Mr. Sterritt, I want to ask you to clarify one  21 reference I have seen.  Was a Maureen Cassidy ever  22 employed by the Tribal Council to undertake research  23 on its behalf in connection with land claims?  24 A  Well, before I go on to that, what I want to comment  25 on is that once I had worked with Ben McKenzie and  26 Mary in reviewing the list of names, it was my  27 impression that the traplines were not what the  28 hereditary chiefs -- as registered in the Department  29 of Indian Affairs -- were not necessarily what they  30 believed them to be and also that I -- when I did  31 undertake research in, eventually, in a more concerted  32 manner, that I felt that it was probably more  33 important to identify features rather than to simply  34 refer to traplines, and I undertook that.  So in terms  35 of Maureen Cassidy, Maureen Cassidy was hired more to  36 set up the library for the Tribal Council than she was  37 to -- although she -- I can't remember if she had a  38 dual responsibility to do some research but her  39 primary responsibility was to put together information  40 for a document resource centre for the Tribal Council.  41 Q   We have seen that stamp on a couple of the documents  42 that have been produced.  But would I be right in my  43 understanding that she spent some time examining and  44 copying the files of the department, in the  45 department, in the possession of the Department of  46 Indian Affairs in Ottawa relating to the claims area?  47 A   Yes, she spent a lot of time trying to get documents 8099  N. Sterritt (For Plaintiffs)  Cross-exam by Mr. Goldie  1 of any nature that pertain to the Gitksan and  2 Wet'suwet'en area.  3 Q   Including files which would be denied, in respect to  4 access, would be denied to ordinary researchers, files  5 containing personal information?  6 A   Yes, I think if I recall, there was -- I think that  7 there was -- well, could you be more specific in that?  8 Because there is something about that that I recall.  9 Q   Well, perhaps this will assist you, we are not -- was  10 not permission required of the archives in Ottawa and  11 with the Department of Indian Affairs, from band  12 councils or individuals, before access was allowed to  13 make copies of those files under the Access To  14 Information Act?  15 A   There was a special situation where, yes, we requested  16 access to files and I can't remember exactly what  17 those files were but, yes, we did.  18 Q   Do you remember there was a file containing -- a file  19 that was in the name of Mr. Stanley Williams?  20 A   I don't recall, really.  21 Q   Well, is there a list of the documents in the document  22 resource centre or library that the Tribal Council  23 maintains?  24 A   Yes, I understand there is a list.  25 Q   Could we have that produced, please?  26 A  Well, are you referring to the document list that the  27 lawyers are -- have prepared?  28 Q   No, I am talking about the library's own list?  29 A   I don't know how the library is set up at this time.  30 Maureen Cassidy has not been involved for a number of  31 years and another lady, Jean Joseph, is the person who  32 set up the present library.  I don't know what is  33 there.  34 Q   Well, I am asking for the production of the library  35 list, I am not talking about the document list in this  36 case, I am talking about a document list of the Tribal  37 Councils and my instructions are that there are --  38 there is a very full number of documents, some of  39 which are barred to the access of ordinary researchers  40 in the possession of the Tribal Council and it may  41 have relevance to this case, and this information came  42 to me very recently.  43 MR. RUSH:  I don't know anything of that.  What I know of is  44 that we have made a comprehensive search of the  45 documents in the possession of the plaintiffs and the  46 Tribal Council and what we have disclosed is what we  47 consider to be relevant and related, within the 8100  N. Sterritt (For Plaintiffs)  Cross-exam by Mr. Goldie  1 possession of the Tribal Council and the plaintiffs.  2 MR. GOLDIE:  We have gone through the relationship between the  3 Tribal Council and the plaintiffs, and the position  4 taken in this lawsuit is that the Tribal Council is,  5 of course, the agent.  I am asking for production of a  6 document which the witness has identified and --  7 THE COURT:  I am not sure he has identified a document or  8 describing an index.  9 MR. GOLDIE:  Well, that's what I think it is.  That's what I  10 think it is precisely.  11 MR. RUSH:  I think the plaintiff was referring or Mr. Sterritt  12 was referring to the document list that's been  13 disclosed by the plaintiffs.  14 THE COURT:  He was but I think he was, he — well, Mr. Goldie, I  15 would have to have more information.  If, for example,  16 they had a card index consisting of documents, it  17 might be many boxes and I wouldn't lightly order that  18 it be reproduced or that it be carried down here.  I  19 would have to have more information than I have now to  20 deal with your request.  21 MR. GOLDIE:  Well, I address the request to my friend, that he  22 ascertain whether there is an index of the holdings of  23 the resource centre, which the witness has referred  24 to, and, if so, to inform me of its nature.  Then we  25 can go from there.  2 6 THE COURT:  I am sure Mr. Rush would be glad to do that.  At  27 least make the inquiries and pass on what information  2 8 you can.  29 MR. GOLDIE:  Thank you.  30 Q   Just one other point on that, I refer to volume four  31 of the examination for discovery, question 1986, in  32 the course of describing some of your work you made  33 reference to genealogical data and this question was  34 asked of you:  35 "Q   Who provided you with genealogical data?  36 A   I did considerable amount of genealogical  37 interviews myself and I also depended on and I  38 provided that information to the genealogist that  39 works -- that has submitted a report to you.  And  40 so I have done some of the genealogical research  41 and I have also relied on the research done by  42 other persons."  43 Now with respect to the person that you identified  44 as having submitted a report, is that Heather Harris?  45 A   Yes.  46 Q   And she works or has worked as an employee of the  47 Tribal Council? 5101  N. Sterritt (For Plaintiffs)  Cross-exam by Mr. Goldie  1  A  2  Q  3  4  A  5  Q  6  A  7  8  Q  9  A  10  Q  11  A  12  Q  13  A  14  15  Q  16  17  A  18  THE COURT  19  A  20  21  MR. GOLDI  22  Q  23  24  25  26  27  28  29  A  30  Q  31  32  33  34  A  35  Q  36  37  38  A  39  40  Q  41  42  43  A  44  Q  45  A  46  Q  47  Yes.  What others of the plaintiffs' experts are employees  of the Tribal Council?  I don't know of -- well, Marvin George.  That's all that you now recall?  Well, you asked me which of the plaintiffs' experts  are employees of the Tribal Council.  Yes.  What about Susan Marsden?  She is not an employee.  Was she -- has she ever been?  Yes, she has.  When was that?  For a period of about two years, ending roughly a  year-and-a-half ago.  And are there any others of the plaintiffs' experts  who were employees of the Tribal Council?  Mike Morrell.  :  Morrell?  M-O-R-R-E-L-L.  I don't recall any others at the  moment.  r:  All right.  I will leave that for a moment.  Mr. Sterritt, going back to the evolution of the  statement of claim, as we have discussed at some  length, when the writ was issued in 1984 there were  alleged to be 37 Gitksan chiefs who were alleged to  represent all who call themselves Gitksan; we are  agreed on that, are we?  Well, we have had a lengthy discussion on that.  Yes.  Are we agreed on the proposition that when the  writ was issued there were alleged to be 37 Gitksan  chiefs who were alleged to represent all who called  themselves Gitksan?  Yes.  And was that your belief on October 23rd, 1984?  I am  emphasizing now that they represented all who called  themselves Gitksan.  Yes, the -- all of the territories and all of the  persons at that time.  And the ones who were the chiefs in the writ in 1984,  were, with one possible exception, all head chiefs,  that's right, is it not?  Which exception are you referring to?  Stanley Williams, Gwis gyen, paragraph 9?  Well, Stanley Williams is and was a head chief.  Well, then all of them are head chiefs or were head  chiefs; is that right? 8102  N. Sterritt (For Plaintiffs)  Cross-exam by Mr. Goldie  1 A  Well, I mentioned about the Eagles at Kitwanga, that  2 there it was really between the Eagles who would be  3 the -- who was the leading person in the house or the  4 houses there, that they could either be under one or  5 the other.  But, yes, I think that that's --  6 Q   And all chiefs, all chiefs are hereditary chiefs,  7 aren't they?  8 A   Yes.  9 Q   But a head chief will have nephews or brothers who  10 have high names and who are closely related but the  11 head chief will generally prevail in decisions with  12 those who are very close to them as hereditary chiefs,  13 is that the distinction?  14 A   Read that again, please.  15 Q   A head chief will have nephews or brothers who have  16 high names; is that right?  17 A  Well, so will hereditary chiefs.  I mean, that's a --  18 Q   But the head chief will generally prevail in decisions  19 with those who are very close to them as hereditary  20 chiefs, isn't that correct?  21 A   It's like a chairman's position, the chairman can --  22 will respect the decisions that may have to be made by  23 a hereditary chief next to them and will listen to the  24 collective views or opinions of the rest of the  25 hereditary chiefs, but there may be a situation where  26 a decision has to be made and that hereditary chief  27 could take it upon themselves to make a decision that  28 would be independent of that collective view.  29 Q   Well, I take it you're not disagreeing with the  30 proposition I put to you, you're describing the way in  31 which it comes about?  32 A  Well, it's not fixed.  There are different  33 circumstances in terms of how that -- how decisions  34 are made and I have described an example of that.  35 Q   I appreciate that but I want to be clear about this,  36 that regardless of how the process works, the  37 difference between a head chief and another hereditary  38 chief is that the head chief's decisions will  39 generally prevail over those who are close to him?  40 A   I guess what -- I think that the -- that is a  41 possibility, but -- so I might have some difficulty  42 with the word generally there.  43 Q   Well, I don't want to -- I thought it was a simple  44 proposition, because I was really quoting you, Mr.  45 Sterritt, in your examination before Mr. Justice  46 Cumming, under tab 3, and so that I fully understand  47 the qualifications that you are making I would like 3103  N. Sterritt (For Plaintiffs)  Cross-exam by Mr. Goldie  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  A   '  19  20  21  22  23  Q  24  25  MR.  RUSH:  26  27  MR.  GOLDIE  28  Q  29  A  30  THE  COURT:  31  32  A   I  33  MR.  GOLDIE  34  Q  35  36  A  37  Q  38  39  40  THE  COURT:  41  MR.  GOLDIE  42  43  THE  COURT:  44  45  MR.  GOLDIE  46  THE  COURT:  47  MR.  GOLDIE  you to look at tab 3, page 27.  Now, the question that I put to you is at the  bottom of page 26, I say:  "Q   Mr. Sterritt, you don't characterize any of the  now plaintiffs, those who have succeeded those  who have died, but Mr. Rush refers to them as  head chiefs and they are allegedly hereditary  chiefs in the statement of claim.  Is there any  distinction?  A  Well, head chief and hereditary chief are  generally speaking almost the same thing.  A head  chief will have nephews or brothers who have high  names but are closely-related and the head chief  will generally prevail in decisions with those  who are very close to them as hereditary chiefs."  Now is that an answer that you now wish to modify?  Well, okay, I am making a distinction here between,  yes, the head chief and those around them, and I guess  what I am saying is that the head chief has more  authority than the chiefs around him but would not  necessarily invoke that.  Perhaps not.  But can we take it that the answer you  gave is an accurate answer?  Accurate in the sense of Mr. Sterritt's  understanding.  Well, maybe he doesn't know.  I don't know.  It's close.  Mr. Sterritt, what's the special name given a head  chief?  Miin Simoighat.  And a hereditary chief who is not a head chief, is  simply a Simoighat?  Yes.  Now, many of the hereditary chiefs who have been added  to the statement of claim are not head chiefs, are  they?  Where is the list that you're looking at?  :  Well, it's under tab 5, my lord, the statement of  claim that is attached to Mr. Ryan's affidavit.  If you have a look at the style of cause, go to page  one of the amended statement of claim?  :  Yes, it would be the amended writ.  The amended writ or statement of claim?  :  And the statement -- 8104  N. Sterritt (For Plaintiffs)  Cross-exam by Mr. Goldie  1 THE COURT:  Just a question whether he works off the style of  2 cause or the amended statement of claim.  3 MR. GOLDIE:  The only distinction I think that is one gives the  4 English name and the other -- of the -- what I would  5 call the head chief.  6 Q   And in fact perhaps it would be best if you did look  7 at the writ of summons which immediately follows Mr.  8 Ryan's affidavit.  9 A   Okay.  Yes.  10 Q   And my question to you is:  Many of the people who are  11 added there, and you can tell by the underlining, are  12 hereditary chiefs but not head chiefs, isn't that so?  13 A   From running through it, some of the chiefs that are  14 added are second chiefs and others are head chiefs.  15 Q   All right.  I want to put a general proposition to  16 you.  Each house has a head chief but each house has  17 sides or, if I understand the evidence that's been  18 given here, Sto'owilp; is that correct?  19 A   No, as I understand Sto'owilp, and it would be subject  20 to what the hereditary chiefs have said, but what I  21 understand Sto'owilp to be is where two hereditary  22 chiefs have equal authority and sit beside each other  23 under the centre beam of the Feast House.  24 Q   Well, maybe I have misunderstood Mary McKenzie's  25 evidence, and I will go back and read what she said,  26 but are there not, in concept, sides to a house?  27 A   Yes, there are.  28 Q   And each side of the house has its own matralineal  29 line?  30 A  Well, no, not necessarily.  31 Q   Well, that may be so.  Not necessarily.  I accept that  32 qualification.  But that can be so?  33 A   Yes, it can be.  34 Q   And there can therefore be, in the case of a house  35 with two sides, two distinct matralineal lines?  36 A   Yes, and I can give you an example.  37 Q   Well, yes, go ahead.  38 A   The house of Nii Kyap, and the house of Wii Gaak, sit  39 beside each other.  My father, Neil Sterritt, and the  40 former David Gunanoot, sat side by side and the Wii  41 Gaak line went one way, and the Nii Kyap line went the  42 other.  One went to the right, one went to the left.  43 And the matral line was different, but it -- from what  44 I understand, there was a time, possibly long ago,  45 that that matra line was much closer, and I don't know  46 how long ago that would be.  47 Q   Well, there can be competition within the house 8105  N. Sterritt (For Plaintiffs)  Cross-exam by Mr. Goldie  1 between these two lines or sides for the controlling  2 head chief name, is that not correct?  3 A   I wouldn't use the word competition.  There could be a  4 circumstance where the -- and there are circumstances,  5 not could be, but there are circumstances where an  6 experienced and knowledgeable hereditary chief passes  7 away and a nephew in direct line takes the name, and  8 becomes the successor, and beside the hereditary chief  9 is a -- another name within the house of very high  10 rank but not necessarily recognized as the senior  11 ranking name at that time, who is older and more  12 experienced.  And for a period of time that person  13 will be the one running the matters within the house  14 and training this younger person and, at that point,  15 that's not a competition.  And there are other  16 circumstances that might appear to be competition, but  17 aren't necessarily, and that would be an example of  18 that was the situation where Jeffrey Morgan, when he,  19 before he passed on, wanted the name Tenimgyet to  20 assume its former position.  So it's not a competition  21 necessarily, but -- well, it's not a competition.  22 Q   The example you give of Tenimgyet, who is Mr. Art  23 Matthews junior?  24 A   Yes.  25 Q   You were present during the cross-examination of Mr.  26 Art Matthews senior, weren't you?  2 7 A   Yes, I was.  28 Q   And you recall that he testified that he didn't use  29 some of Tenimgyet's territory for a period of over 30  30 years because the Morgans took over upon the death of  31 a former head chief?  32 A   Yes, I remember that.  But the situation in that case  33 was that the, as I recall in the evidence, the family  34 was asked, I think by their own direct family members,  35 not to go in and to use that area.  In other words, in  36 the matra line, in the closest matra line, they  37 themselves had made that decision.  They were not, as  38 I recall, left out.  And Jeffery Morgan himself, who  39 became Axtii Hiik, wanted the name to be restored.  4 0 Q   Yes, I was talking about what happened when Mr. Morgan  41 succeeded to the name, and Mr. Art Matthews senior had  42 been told to stay out of the territory because the  43 Morgans have taken over.  44 A   But I think that, as I recall, Art Matthews senior,  45 his relationship was with, I think, Charles Smith in  46 terms of, I think -- I can't remember the  47 relationship, but that when he was -- when he died, he 8106  N. Sterritt (For Plaintiffs)  Cross-exam by Mr. Goldie  1 was then removed, a step removed, from access to that  2 and that the Morgans would be going in.  3 Q   Yes.  Well, Mr. Sterritt, what I am getting at is the  4 reason why there was an explosion of plaintiffs, we  5 have gone from 37 to 65, of the Gitksan chiefs, and as  6 you said, many of them are hereditary, well all of  7 them are hereditary chiefs but not all of them are  8 head chiefs, and I suggest to you that this is because  9 a number of the senior hereditary chiefs were not  10 content to have territory identified by the head  11 chief, they wanted territory identified by their own  12 name, isn't that the case?  13 A   No, that is not.  That's incorrect.  14 Q   Well, let's take it a step further.  You -- the name  15 Wii Eelaast, was held by Jimmy Angus; is that correct?  16 A   Yes. That's spelled W-I-I space E-E-L-A-A-S-T.  17 Q   And it came out during Martha Brown's  18 cross-examination on her commission evidence in  19 1985-'86, that Jimmy Angus was a head chief but he  20 wasn't a plaintiff, you remember that, don't you?  21 A  Well, I don't know whether that information came out  22 in the -- I think I spent a little bit of time in  23 Martha's cross-examination or commission evidence, but  24 I don't recall whether that came out then.  25 Q   Well, we are clear that Jimmy Angus was not named as a  26 plaintiff in the writ in October of 1984?  27 A   Yes.  28 Q   And he subsequently has been?  29 A   Yes.  30 Q   And I am suggesting to you that it came out during her  31 cross-examination that he was a person who was a head  32 chief but he wasn't a plaintiff.  Now, you can't  33 confirm that then?  34 A   But in terms of the point you were making before, if  35 she is suggesting that, that doesn't speak to  36 competition.  37 Q   Well, take one thing at a time, Mr. Sterritt.  38 Had Jimmy Angus, prior to October 23rd, 1984, told  39 you that he had territory?  40 A   Jimmy is a young person, a little younger than I am,  41 he -- when Steve Morrison died in the late 1970s,  42 Jimmy assumed the name and he knew that there were  43 some areas that were connected to him and -- but what  44 he was -- being a young person, what he was not clear  45 about what his relationship between Martha Brown and  46 Amagyet, and we held a meeting where we discussed that  47 and this relationship between Wii Elaast and Kliiyem 3107  N. Sterritt (For Plaintiffs)  Cross-exam by Mr. Goldie  1  2  3  4  5  6  7  Q  8  9  A  10  Q  11  12  A  13  14  15  16  17  Q  18  A  19  20  21  22  23  Q  24  A  25  26  Q  27  28  29  A  30  Q  31  32  A  33  34  35  36  Q  37  38  39  A  40  41  42  43  44  Q  45  A  46  THE COURT  47  A  lax haa became clearer and I had -- I don't recall at  what point -- he knew he had fishing sites and in  terms of territory, I think that he knew he had  territory but wasn't clear about his relationship with  Martha Brown and that began to be clarified.  But I  don't -- well --  Well, he came in, in 1986, and he wasn't in in 1984,  and can you tell me why?  Well, I think I have just explained that.  And that -- you're saying that it wasn't until 1986  that he knew his territory?  No, I am not saying that that's when he knew his  territory.  I am saying that it wasn't clear to him  the relationship between him and Kliiyem lax haa.  He  sat at the feast table with Martha Brown, he sat in  fact -- let's see --  Well, he sat where he had always sat, didn't he?  Well, he sat where he had always sat but sometime  during that period, through discussions, he realized  that Wii Elaast didn't have as close a relationship as  it appeared to be by him sitting at the feast table  with Martha.  But he didn't change his position at the feast?  No, but he started to understand better that there was  a more distant relationship there.  All right.  Where do I find the record of that  discussion?  I am assuming you were present at that  discussion?  Which discussion are you talking about?  Where Jimmy Angus realized that Martha Brown couldn't  speak for him?  Oh, I think you misunderstand again.  The situation is  that Jimmy Angus or Martha Brown could speak for Jimmy  if they decided but it was also possible for Jimmy to  speak for himself.  All right.  I am assuming that you were present when  this evolved and I would like to know whether you  recorded that and, if so, where we can find it?  I am not sure to what extent I recorded it, but the  meeting that I had was -- well, that I was called to,  was a meeting with Albert Tait, Mary McKenzie, and  James Angus junior.  I don't recall who else attended  that meeting.  Not Martha Brown?  No.  :  And yourself?  And myself.  And then there was another meeting 510?  N. Sterritt (For Plaintiffs)  Cross-exam by Mr. Goldie  1 between Jeff Harris senior and Jimmy Angus, and  2 myself, and I don't recall who else was at that  3 meeting.  4 Q   But not Martha Brown?  5 A   No, no, Martha Brown has been very sick -- had been  6 very sick.  It was not a -- Jimmy was -- Jimmy may  7 have had meetings himself with Martha but I don't know  8 that but he was trying to determine the background of  9 this relationship, of why the seat was where it was,  10 and who his closest relatives were.  11 Q   And having done so, he wanted a declaration of title  12 from this court that he owned certain territory?  13 A  Well, he decided that it was possible for him to have  14 a declaration or he could have elected to have Mary --  15 pardon me, Martha, or the house of Kliiyem lax haa, do  16 the same.  17 Q   But he didn't, he changed his mind?  18 A   That's true.  Well, I don't think it's a matter of  19 changing his mind.  20 Q   All right.  But the end result is that he applied to  21 be joined as a plaintiff for the purpose of obtaining  22 a declaration of title with respect to property in his  2 3 name?  24 A   He ended up being a plaintiff.  25 Q   Yes.  And for the purpose of obtaining a declaration  26 of title, isn't that right?  27 A  Well, I think -- I mean there may be more to what  28 you're saying or less to what you're saying than I can  29 appreciate, but --  30 THE COURT:   Is it in the statement of claim what he is seeking?  31 MR. GOLDIE:  Yes, it is.  32 THE COURT:  It isn't necessary for this witness to characterize  33 it, surely.  34 MR. GOLDIE:  I will explore it tomorrow.  35 THE COURT:  All right.  Thank you.  Do counsel still wish to  36 have that argument at 9 o'clock?  37 MR. GOLDIE:  Oh, yes, I believe that's the case.  I may not be  38 here, and -- sharp at nine, I have another meeting,  39 but Mr. Wiilms will be appearing.  While I would like  40 to be here to introduce him, I am sure your lordship  41 is aware, he will be --  42 THE COURT:  I know him, he was a clerk here several years ago.  43 MR. GOLDIE:  He will be replacing Mr. Plant.  44 One other thing, my lord, my friend asked me  45 yesterday how long I intended to be.  I don't think  46 it's a question -- I don't think that's a matter of my  47 intention, it's in other hands.  What I propose, my 8109  N. Sterritt (For Plaintiffs)  Cross-exam by Mr. Goldie  1 lord, is that I will continue until Friday, and ask  2 Mr. Sterritt to stand down so that the experts can be  3 heard in the sequence that Mr. Grant wishes them to be  4 heard and that will give me an opportunity, my lord, I  5 hope sufficient, to cope with the documents that have  6 been produced, even as recently as the day before  7 yesterday.  8 THE COURT:  Well, Mr. Sterritt would then stand down at least  9 two weeks.  10 MR. GOLDIE:  I am not sure whether -- it would depend on how  11 long the experts took.  Our present view is that the  12 two experts that Mr. Grant has scheduled for next week  13 would probably not take the whole time.  14 THE COURT:  Mr. Rush is shaking his head.  15 MR. RUSH:  Yes, the, what you saw was a negative response to the  16 proposal.  We propose that Mr. Sterritt continue.  If  17 my friend feels that, because of the document  18 delivery, that he needs further time, well that's  19 another question.  But I think that the better course  20 of action, and what we needed to know, and I think we  21 have learned from my friend, is that his cross-  22 examination will move into next week and we prefer  23 that Mr. Sterritt continue on.  And we will make  24 arrangements as best we can with the experts.  25 MR. GOLDIE:  Well, my lord, I can assure my friend right now,  26 that at a certain point in my cross-examination, I  27 will be asking to have him stand down.  I am trying to  28 accomodate the timetable that we were given.  It's not  29 a question of whether I can, I will be, but I am  30 prepared to stop at Friday at wherever I happen to be  31 and pick it up whenever the last expert steps off the  32 stand.  33 MR. RUSH:  Well, that's not satisfactory at all.  I think my  34 learned friend should carry on with Mr. Sterritt's  35 cross-examination and go to the point where he feels  36 he can't go any further and indicate where he is going  37 to need to continue his cross-examination and if at  38 that point your lordship feels that it's warranted for  39 there to be an adjournment in order for my learned  40 learned friend to continue to do that, we will deal  41 with it at that time.  But, in my submission, we  42 should press on with Mr. Sterritt's cross-examination  43 and the timetable that we established with the experts  44 was one that we had hoped we could, would follow, at  45 least in this period, follow along after Mr. Sterritt  46 had completed his cross-examination.  Now we are  47 hearing that my learned friend wants to adjourn the 8110  N. Sterritt (For Plaintiffs)  Cross-exam by Mr. Goldie  1 case, the cross-examination of Mr. Sterritt to a  2 further time.  Well, I think we should get to the  3 point where he has completed as much as the  4 cross-examination as he can feel that he can do at  5 this point.  6 THE COURT:  Well, when this timetable was set, was it thought  7 that you could only finish the cross-examination if  8 Mr. Goldie could finish the cross-examination in a  9 little over three-and-a-half days?  10 MR. RUSH:  Well, no, surely it wouldn't be.  11 THE COURT:  He didn't get started until yesterday.  When was it,  12 just before lunch?  13 MR. RUSH:  I believe that's true.  It was in the afternoon  14 yesterday.  15 THE COURT:  I think it was at the morning break.  16 MR. RUSH:  I think it was at the afternoon break.  Probably 3:21  17 to be precise.  I am sure my friends have that  18 recorded somewhere.  19 THE COURT:  Are the experts conveniently postponable?  20 MR. RUSH:  These two are, yes.  21 THE COURT:  Well, I am not sure I understand the problem, why  22 there is a problem.  I will accept counsels'  23 statements that there is a problem.  24 MR. RUSH:  Well, my lord, I can be more precise about the  25 problem.  The problem is that Mr. Sterritt is not --  26 has limited availability after the end of this month.  27 And he will not, his availability becomes increasingly  28 more difficult in respect of --  2 9 THE COURT:  Well, I regret to say that I am not overwhelmed by  30 that as I have so often said before, if someone has to  31 be inconvenienced, it's usually unfortunately the  32 witness.  Next week will be the week of the 26th.  33 Then we will be in beyond the end of the month anyway.  34 Do you think you could finish next week if you were  35 able to go all week, Mr. Goldie?  36 MR. GOLDIE:  I don't know at the present time.  The timetable  37 that Mr. Grant alluded to was based on Mr. Sterritt  38 having four days to complete his evidence in chief and  39 I would have six days to complete the  40 cross-examination.  I may very well complete it in six  41 days.  But I can say right now that there is a portion  42 of my cross-examination which is based upon an  43 analysis of the documents that were delivered to us on  44 the 2nd, the 14th and the day before yesterday, and  45 this case is simply too important or I am assuming  46 this question of territories is too important for me  47 to be prejudiced in my preparation. 5111  N. Sterritt (For Plaintiffs)  Cross-exam by Mr. Goldie  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  Now, what I was talking about is that it seemed to  me to be a very simple proposition to run the experts  at the time they were scheduled to run, rather than to  have me come to a point on Tuesday, for instance, and  say, well I now wish to adjourn to prepare my -- the  balance of my preparation and to have my friends say,  oh, well, we can't call the experts on short notice.  I understood they weren't in town here.  MR. RUSH:  I can assure my friend that what our priority is is  to carry on with the fullest cross-examination at this  time of Mr. Sterritt, and if there is any concern  about these two particular experts, which are more  manageable in terms of their availability than others  who follow them, then we can make arrangements to have  them here, hopefully on this short notice, if in fact  my friend finishes next Tuesday.  MR. GOLDIE:  Not finishes.  THE COURT:  He says he won't finish.  MR. RUSH:  Well, finish what he can next Tuesday.  But in my  submission we should carry on to the point where he  feels that he must request the court for an  adj ournment.  THE COURT:  All right.  Well, I think that where there is  disagreement, a person has to carry on and do what he  can do and stand him down.  It's the plaintiff who  will be inconvenienced, it's their witnesses who will  be inconvenienced, if he is left in a state of  uncertainty, at least left in a state of uncertainty,  if the plaintiffs are willing to accept that burden, I  think we should go as far as we can go, Mr. Goldie,  and do what we have to do.  That will be my ruling,  unless counsel convinces me otherwise.  We will adjourn until 9 o'clock tomorrow morning.  (PROCEEDINGS ADJOURNED UNTIL 9 O'CLOCK, SEPTEMBER 22, 1988)  I hereby certify the foregoing to be  a true and accurate transcript of the  proceedings herein to the best of my  skill and ability.  Wilf Roy  Official Reporter

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