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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1989-09-07] British Columbia. Supreme Court Sep 7, 1989

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 19324  Submission by Mr. Willms  1 7 September 1989  2 Vancouver, B.C.  3  4 THE REGISTRAR:  Order in court.  In the Supreme Court of British  5 Columbia, this 7th day of September, 1989.  In the  6 matter of Delgamuukw versus Her Majesty the Queen at  7 bar, my lord.  8 THE COURT:  If it's convenient, I can deal with the question of  9 privilege of these documents for which such claim has  10 been made.  I have examined items 1 to 5 described in  11 Ms. Sigurdson's letter to Mr. Grant of September 6,  12 1989, and I am satisfied that they are ones for which  13 a claim for privilege may be made.  I tend to think  14 they are innocuous but they would direct opposing  15 counsel to sources of investigation, inquiry and  16 discussion that is going on between the defence  17 counsel and their advisors in a way that I think falls  18 within the protection that I sought to establish for  19 counsel's brief in the reasons for judgment I have  20 given in that connection, and I will therefore uphold  21 the claim for privilege for those five items.  22 The sixth item said to be correspondence to Rick  23 Marshall dated June 20, 1989 does not appear to me to  24 be in this collection of material I was given, at  25 least I wasn't able to locate it.  26 MR. WILLMS:  My lord, it may just be misdescribed.  At the very  27 first document that your lordship --  28 THE COURT:  Well, I shuffled through these several times looking  29 for it so what is the first identified document?  30 MR. WILLMS:  There is a fax transmittal sheet with the date  31 written on it of May 2, 1989.  32 THE COURT:  All right, I have that.  33 MR. WILLMS:  That date may be incorrect.  And attached to that  34 is what is described in the list as the correspondence  35 to Rick Marshall dated June 20.  It actually went to  3 6 him on June 20.  37 THE COURT:  So it's minutes of evidence.  38 MR. WILLMS:  It is minutes of evidence, yes.  39 THE COURT:  Well, I saw that and I would uphold a claim of  40 privilege to that.  It is draft minutes of evidence  41 which in my view ought to be protected.  If it is any  42 comfort to you, Mr. Grant, I can tell you I don't  43 think you are missing anything by not having access to  44 that.  45 MR. GRANT:  With that comment, I am glad I have less to read, my  46 lord.  4 7 THE COURT:  Yes. 19325  Submission by Mr. Willms  1 MR. WILLMS:  My lord, the one item that we left yesterday from  2 the evidence of Mr. Steventon awaiting the transcript  3 was what exactly did my friend put to Mr. Steventon  4 about the documents, so I will hand up to your  5 lordship a copy of the document and it's the  6 transcript yesterday, my lord.  7 THE COURT:  You will have to remind me, how does this arise now?  8 MR. WILLMS:  What happened was, I in re-examination attempted to  9 put into evidence a document that my friend read from  10 and asked questions from --  11 THE COURT:  Yes.  12 MR. WILLMS:  -- in cross-examination.  My friend objected and  13 there was -- it was made on the basis of what it was  14 that my friend asked.  15 THE COURT:  Yes.  16 MR. WILLMS:  It is at page 19316.  Now, it starts off at line  17 13, my friend says this:  18  19 "Q  There is a memorandum relating to trapline use  20 issue from yourself to Mr. Edie dated June  21 15th, '89.  I just want to read this to you.  22 It says -- you remember this memorandum?  23 A  Yes, I do.  24 Q  Okay.  It says:"  25  2 6 Now, I won't read it but what my friend then read to  27 the witness, he read the Re: Trapline Use Issue to the  28 witness.  29 THE COURT:  He read the first paragraph.  30 MR. WILLMS:  And then all the way down to "problem" and then he  31 asked:  32  33 "Q  What is the discussion you were referring to  34 there?"  35  36 The answer was:  37  38 "A Well, the Ministry was trying to determine how  39 we could handle the question of non-use of  40 traplines, how to best approach it  41 administratively."  42  43 And then my friend qualified that as:  44  45 "Q  Of non-use of native traplines?  46 A  Yes.  As to whether to go to the tribal  47 councils or bands and ask them to try to update 19326  Submission by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  those idle traplines."  Now, the balance of the memorandum, my lord, speaks  directly to the question that my friend raised for the  very first time in cross-examination, non-use of  native traplines, and of course non-use of traplines  generally but, in particular, a reference to native  traplines.  THE COURT:  What are MU's?  MR. WILLMS:  MU's are management units, my lord.  THE COURT:  Yes, all right.  MR. WILLMS:  If I could just say, my lord, for the two  reasons -- not only for the reason that my friend  directly asked a question out of what Mr. Steventon  said and modified it to native traplines but also he  read the reference, the Re: Trapline Use Issue and the  memo describes what the trapline use issue is and so  in my submission it's appropriate to mark it in  re-examination, and it was raised by my friend for the  first time in cross.  THE COURT:  Thank you.  Mr. Frey, do you want to contribute to  this?  MR. FREY:  I support Mr. Willms' submission.  THE COURT:  Thank you.  MR. GRANT:  My lord, as you see, the question I asked really was  directed to that first comment and I, in fairness,  read that paragraph to him because I wanted the  witness to explain what was the "discussion" about  which he answers on page 19316, and then when he said  the non-use of traplines I questioned as to whether or  not he was referring to native traplines or all  traplines.  I was focusing on the discussion, not the  "problem", but the memo says:  "With the discussion currently ongoing about  the trapline use provisions."  I wanted him to explain what discussion he was  referring to.  THE COURT:  But surely "discussion" in that context is related  with or associated with "problem", isn't it?  MR. GRANT:  Well —  THE COURT:  They are talking about the problem and this is part  of the discussion.  MR. GRANT:  Well, he says there is a discussion currently  ongoing and then he's assembled a few hard statistics.  I say that I didn't raise anything with him about the 19327  Submission by Mr. Grant  1 hard -- about his research into the hard statistics.  2 THE COURT:  But surely the hard statistics are part of the  3 discussion about the problem, are they not?  4 MR. GRANT:  Well, the way I read the memo was that there was a  5 discussion prior to and up to June 15, '89, there was  6 a discussion, and I wanted to know what that was.  7 Then he says:  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  "I have assembled a few hard statistics to  illustrate the magnitude of the 'problem'."  That's what he did subsequent to the discussion.  Obviously there is -- obviously he dealt with hard  statistics because I was incorporating that into the  discussion but that wasn't my question.  My question  was:  what was the discussion about.  No, I think --  And that discussion would have been in the absence  of hard statistics because the discussion obviously  was something that was going on beforehand.  I think you are slicing this piece of venison too  fine, Mr. Grant.  I think the introduction of the  document makes admissible in re-examination, those  parts of the document that are related to or  associated with the part that was asked about in  cross-examination.  It is my judgment that the  document may be marked as an exhibit in  re-examination.  What's the next number?  THE REGISTRAR:  The next number is 1124.  THE COURT  MR. GRANT  THE COURT:  (EXHIBIT 1124  MEMO DATED JUNE 15, 198 9 RE:  NATIVE TRAPLINES)  NON-USE  THE COURT:  Thank you.  All right, thank you.  Mr. Mackenzie.  MR. MACKENZIE:  My lord, I wish to call the next witness for the  provincial defendant, Mr. Richard Marshall.  Mr.  Marshall, would you take the stand?  THE REGISTRAR:  Will you stand in the witness box please, sir,  and take the bible in your right hand.  RICHARD WILLIAM MARSHALL, a witness  called on behalf of the Provincial  Defendant, having been duly sworn,  testifies as follows:  THE REGISTRAR:  Would you state your full name and spell your  last name please, sir? 1932?  R.W. Marshall (for Province)  In chief by Mr. Mackenzie  1 THE WITNESS:  It is Richard William Marshall, M-a-r-s-h-a-  2 double-1.  3 THE REGISTRAR:  Thank you, sir, please be seated.  4  5 EXAMINATION IN CHIEF BY MR. MACKENZIE:  6 Q What is your current position, Mr. -- as far as  7 employment is concerned, Mr. Marshall?  8 A I am a wildlife technician in Smithers, B.C.  9 Q And you work for the provincial government, Ministry  10 of Environment, Fish and Wildlife Branch?  11 A That's correct.  12 Q You were born in Penticton, British Columbia, in 1951?  13 A That's correct.  14 Q And you lived in Penticton for your first 18 years and  15 then moved to Victoria to attend the University of  16 Victoria?  17 A Yes.  18 Q And following your graduation from the University of  19 Victoria, you worked in Victoria with the Fish and  20 Wildlife Branch from about 1974 until 1981?  21 A That's correct.  22 Q And in September 1981, you took up your present  23 position in Smithers?  24 A That's correct.  25 Q And you moved to Smithers at that time?  26 A Yes.  27 Q And you have lived there since that time?  28 A Yes.  29 Q And what was the degree, if any, you received from the  30 University of Victoria?  31 A I received a Bachelor of Science in marine biology.  32 Q And what year was that?  33 A In 1973.  34 Q What did you do following your graduation in 1973?  35 A I spent the first summer working with the Ministry of  36 Forests and then began employment with the Provincial  37 Museum in the fall of 1974.  38 Q And I understand you worked as an employee at the  39 Provincial Museum until 1974, sometime in 1974?  40 A With the Provincial Museum until I believe it was  41 April of 1974, that's correct.  42 Q So when did you start with the Provincial Museum?  43 A Would have been in the fall of 1974.  44 Q Well, after April 1974, what did you do?  45 A Pardon me?  46 Q After April 1974, what did you do?  47 A I began employment with the Fish and Wildlife Branch. 19329  R.W. Marshall (for Province)  In chief by Mr. Mackenzie  1 Q   And, as you said, you worked in Victoria for the Fish  2 and Wildlife Branch from then until August 1981; is  3 that correct?  4 A   That's correct.  5 Q   From 1974 to 1981, what were your job responsibilities  6 at the Fish and Wildlife Branch?  7 A  My primary responsibility was to -- was with regarding  8 the hunting and trapping synopsis and the orders in  9 councils.  10 Q   And what is that hunting and trapping synopsis?  11 A   It's a brochure put out by the Ministry which collates  12 all the regulations pertaining to hunting and trapping  13 and puts it into one brochure.  14 Q   And what was your job description or your -- the title  15 of your job most of that time?  16 A   I had several but the major one was a regulations  17 technician.  18 Q   And besides the hunting synopsis, hunting regulations  19 synopsis, did you participate in any other projects  20 during that time?  21 A   One of the other major projects was producing the  22 recreational atlas of B.C.  23 Q   And what was involved in producing the recreational  24 atlas?  25 A   It was a matter of taking the current definition of --  26 MR. GRANT:  Just want to be clear.  I take it Mr. Mackenzie is  27 asking what Mr. Marshall's involvement, what he did;  28 is that right?  29 MR. MACKENZIE:  Yes.  30 THE COURT:  Why do I need to know all of this?  31 MR. MACKENZIE:  Well, this relates to —  32 THE COURT:  We are not going to be dealing with the recreational  33 atlas, are we?  34 MR. MACKENZIE:  No, my lord.  We are dealing with Mr. Marshall's  35 experience and background.  36 THE COURT:  I am sure that can be summarized without going into  37 details of the atlas.  38 MR. GRANT:  I take it my friend isn't qualifying him as an  39 expert, of course.  40 MR. MACKENZIE:  41 Q   During your time in Victoria were you involved in any  42 mapping, drafting of maps?  43 A   Yes, considerable amount.  In the production of the  44 hunting synopsis in '74, they decided to go, rather  45 than having metes and bounds descriptions of the  46 various restriction areas, they decided to go to a  47 pictorial or a mapping representation of all these 19330  R.W. Marshall (for Province)  In chief by Mr. Mackenzie  1 closures and restricted areas.  2 Q   Did you prepare maps in connection with the  3 recreational atlas of B.C.?  4 A   Yes, I did.  5 Q   Did you prepare a synopsis of hunting regulations each  6 year, hunting and trapping regulations each year,  7 while you were in Victoria?  8 A   Yes, every year.  9 Q   And to your knowledge how are those -- where are those  10 synopses available in the province?  11 A   They are distributed throughout the province at most  12 of the retail or to the retail outlets which are  13 generally sporting goods stores, any place where  14 hunting licences are sold.  15 Q   And have you seen those available in the Smithers  16 area?  17 A   Yes, I have.  18 Q   In sporting goods stores and hunting supply stores?  19 A   Yes.  20 Q   So you left Victoria in 1981, and what happened then?  21 A   I took my current position in Smithers.  22 Q   And which -- what section or branch did you join when  23 you went to Smithers?  24 A   I joined the wildlife section of the Fish and Wildlife  25 Branch.  26 Q   And where was that section located?  27 A   In Smithers.  28 Q   And what was the office in which that was located?  29 A   It was the regional office of the Skeena region.  30 Q   Who worked for the -- who else worked for the wildlife  31 section in that office at that time?  32 A  My supervisor at that time was a Mr. Ben VanDrimmelen.  33 Q   What were the responsibilities of the wildlife  34 management section at that time in 1981 when you  35 arrived?  36 A   To undertake all aspects of wildlife management in the  37 Skeena region.  38 Q   In 1981, were the boundaries of the Skeena region the  39 same as they are today?  40 A   They are, yes.  41 Q   Were there -- in 1981, were there any other  42 administrative subdivisions in the Skeena region?  43 A   The conservation officers had a district  44 administrative boundaries.  45 Q   I understand there was a district conservation  46 officers' office in Burns Lake, Terrace, Smithers,  47 Hazelton, Queen Charlotte Islands, Cassiar, and Atlin; 19331  R.W. Marshall (for Province)  In chief by Mr. Mackenzie  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  is that correct?  A   That's correct.  Q   In 1981, what were the duties and responsibilities of  the conservation officers?  A   They were responsible for the enforcement of the  various acts.  MR. GRANT:  My lord, I am objecting I think for two points:  One  is I think we have covered most of this through this  man's superior, Mr. Steventon and; secondly, I am not  sure how this man, who I don't understand he was in  charge of conservation officers, he wasn't a  conservation officer himself, how does he know what  their responsibilities were.  If it is a matter of  policy, then that's fine, but the policy or their job  description can be filed and that's the end of it.  THE COURT:  Well —  MR. GRANT:  We have covered a lot of this already and I am  not -- no issue has been taken with a lot of this.  THE COURT:  Well, I think we are taking far too long to do  what's got to be done in this part of this case but I  thought the same about your part of the case  yesterday, Mr. Grant.  MR. GRANT:  I appreciate that, my lord.  THE COURT:  And I am a little hard pressed to cut Mr. Mackenzie  off when he is just starting, but really I think we  have a narrow part of this case to deal with and I  think we could have done what had to be done in the  last two days, we could have done that in an hour or  should have done it in an hour.  Maybe that's an  exaggeration.  Certainly a hundred percent over what  we should have been with Mr. Steventon, and I hope we  won't be the same with Mr. Marshall, but you may  proceed, Mr. Grant -- I am sorry, Mr. -- oh, dear, I  have forgotten everybody's name.  Mr. Mackenzie,  please carry on.  MR. MACKENZIE:  My lord, we are simply covering the time period  after Mr. Marshall arrived.  THE COURT:  I know but, you know, this detail is so unnecessary.  What the witness is going to tell me will demonstrate  what his experience and authority in these matters is.  MR. MACKENZIE:  Well, my lord, this is important because it  proceeds the date of the writ, covers -- goes over the  date of the writ.  THE COURT:  I am sure it does.  It is a question of how much  time it will take.  MR. MACKENZIE:  Q   Yes, my lord. 19332  R.W. Marshall (for Province)  In chief by Mr. Mackenzie  1 To your knowledge, in 1981 were the conservation  2 officers responsible for administration of traplines  3 in their conservation officer districts?  4 A   Yes, they were.  5 Q   Did you participate in trapline administration when  6 you arrived in 1981?  7 A   No, I did not.  8 Q   Was the responsibility for trapline administration  9 transferred to the wildlife management section?  10 A   Yes, it was.  11 Q   And when was that?  12 A   In 1983.  13 Q   When did you first begin to work on traplines?  14 A  About that same time, 1983.  15 Q   Were there trapline files in the Smithers regional  16 office at the time you arrived in 1981?  17 A   Yes, there were.  18 Q   Where were they kept?  19 A   They were kept under the direction of Mr. Tom Fraser  20 who was senior conservation officer at that time.  21 Q   And were those files moved to your office in 1983?  22 A   Yes, they were.  23 Q   How were the trapline files organized when they came  24 to your section in 1983?  25 A   They were organized on a conservation officer district  26 section and alphabetically within that by trapper  2 7              name.  28 Q   Were there files for every registered trapline in the  29 Skeena region?  30 A  As far as I know, yes, there were.  31 Q   And in 1983, the districts responsible for the area in  32 the land claims were Terrace, Hazelton, Smithers, and  33 Burns Lake?  34 A   That's correct.  35 Q   And at that time also there were certain traplines  36 covered by the current land claims area that weren't  37 in the Skeena region; is that correct?  38 A   There were several, that's correct.  39 Q   And those were up in the Thutade and Bear Lake area?  40 A   Yes.  41 Q   And those were in the area administered from Prince  42 George?  43 A   No, Omineca, a portion of the northern region.  44 Q   And you visited the various district offices in  45 Terrace, Hazelton, and Burns Lake to review the  46 traplines files in those offices?  47 A   Yes, I did. 19333  R.W. Marshall (for Province)  In chief by Mr. Mackenzie  1 Q   Why did you do that?  2 A   It was the initial phase of attempting to gather  3 together all of the information pertaining to the  4 files.  We wished to ensure that there wasn't  5 information in the district files that should have  6 been available in our regional files in Smithers.  7 Q   When did you visit those offices?  8 A   Through 1983 to 1985.  9 Q   And which files were kept in those district offices at  10 that time?  11 A   The day-to-day working trapline files.  12 Q   I'd like to ask you about trapline maps now.  In 1983  13 when the files were transferred, were there trapline  14 maps in use in your office?  15 A  We were using the CO. working maps.  16 Q   When you say CO., you mean conservation officer?  17 A   Yes, I do.  18 Q   And what to your knowledge did those -- were those  19 maps being used for?  20 A   They were used on a day-to-day basis whenever there  21 were trapping inquiries or issues to be solved or  22 used.  23 Q   To your knowledge had those maps, those conservation  24 officer working maps, been used before 1983?  25 A   They were being used, yes.  26 Q   Did you use them for the same purpose?  27 A   Yes, I did.  28 Q   My lord, we have seen conservation officer working  29 maps yesterday in Mr. Steventon's evidence so I am  30 going to just make sure that Mr. Marshall is speaking  31 about the same maps.  Can you describe those  32 conservation officer working maps in further detail?  33 A   They are paper prints on which are outlined the  34 trapline boundaries generally in a double red pencil  35 line, the name of the trapper who's on those maps.  36 Q   One of the conservation officer's working maps has  37 been marked as Exhibit 1123.  I am showing you Exhibit  38 1123.  Is that an example of one of the maps to which  39 you refer as the conservation officer working maps?  40 A   Yes, it is.  41 Q   Now, when the wildlife section took over  42 responsibility for traplines in 1983, what steps did  43 you take with respect to these conservation officer  44 working maps?  45 A   That's when I began the process of re-mapping them  46 onto the mylars.  47 Q   And, in summary, why were you doing that? 19334  R.W. Marshall (for Province)  In chief by Mr. Mackenzie  1 A   The mylar allowed us to more accurately, I felt, more  2 accurately define the trapline boundaries.  It also  3 allowed us to make paper prints much more readily.  4 Q   As you continued to refer to the trapline areas -- I  5 am sorry, how are the trapline areas designated on the  6 conservation officer working maps?  7 A   I am sorry?  8 Q   How are the trapline areas designated on the  9 conservation officer working area maps?  10 A   They are outlined by a double red line and the name of  11 the trapper is shown.  12 Q   Did you continue to use the name of the trapper to  13 designate the trapline areas?  14 A   Initially we did, yes.  15 Q   After that on the mylar maps?  16 A  We gradually converted them to the current ATN system.  17 Q   And that's the assigned trapper number system?  18 A   Yes.  19 Q   Did you draft all the ATN mylar maps in use in the  20 Skeena region in the Smithers office?  21 A   The vast majority of them.  22 Q   Did you have any assistance from Douglas Steventon?  23 A  A very, very minor amount of drafting was done by  24 Doug.  25 Q   How did you prepare the mylar maps?  26 A   It was a process of obtaining the mylars from the  27 surveys and mapping branch in Victoria and placing  28 those mylars on the conservation officer working maps.  29 In addition, I would, when working on a specific  30 trapline, I would also pull that individual file.  31 Q   What would you do with the file at that time?  32 A   I used it as a reference so that the boundaries that I  33 was putting on the mylars would be accurate and  34 reflect the contents of those files in the  35 conservation officer working maps.  36 Q   And at that time how did the boundaries on the  37 conservation officer working maps compare to the  38 boundaries you put onto the mylars?  39 A   Generally they were very similar.  In some instances,  40 I took the liberty to undertake some changes.  41 Q   How long did it take you to prepare the ATN mylars for  42 the Skeena region?  43 A   It was a process that took the better part of three  44 years.  45 Q   From 1983 until 1986?  46 A   That's correct, with the proviso that I was not  47 working on them all the time.  I had other duties to 19335  R.W. Marshall (for Province)  In chief by Mr. Mackenzie  1 undertake as well.  2 Q   And what did you do after you had drafted the trapline  3 boundaries onto the mylar maps?  4 A   The last step was to assign each of the traplines,  5 assign trapper number and have our draftsman place  6 those numbers on the mylars.  7 Q   And when did you start to use the ATN mylar maps in  8 your office for administering the traplines?  9 A   Began to use them as they became completed.  10 Q   Did you have any other reference sources?  11 A   Yes, we did.  We -- at various times we'd go back to  12 the district conservation officers to attempt to  13 reinforce our understanding of the traplines.  14 Q   What if there was a concern about the depiction of the  15 boundary on the ATN mylar map, what refernce would you  16 consult?  17 A   The first step, we would go back to the conservation  18 officer working map.  19 Q   Do you know Dr. Percy J. Bandy?  2 0 A   Yes, I do.  21 Q   Did you send ATN mylar maps which you prepared to Dr.  22 Bandy?  23 A   Yes, I did.  24 Q   When was that?  25 A   I believe it was the early part of 1986.  26 Q   Did Dr. Bandy return the mylar maps to you?  27 A   Yes, he did, shortly thereafter.  28 Q   And subsequently, were they mylar maps certified by  29 the regional manager of the Skeena region?  30 A   From February -- I believe from February through to  31 the following November, Mr. Steve Willett, the  32 regional manager at that time, did sign all -- each of  33 the mylar maps.  34 Q   You are speaking about 1986?  35 A   Yes.  36 Q   Were you present when Mr. Willett certified the mylar  37 maps in 1986?  38 A   In some instances I was.  In other instances, I would  39 send the maps over to his office in Prince George  40 where he would sign them and return them.  41 Q   Between the time that the mylar maps were returned by  42 Dr. Bandy and the time that Mr. Willett certified  43 them, were there any modifications to the mylar maps?  44 A   None that I can recall.  45 Q   You were -- as you said, you were engaged in drafting  46 these mylar ATN maps in October 1984?  47 A   Yes, I was. 19336  R.W. Marshall (for Province)  In chief by Mr. Mackenzie  1 Q   And you were using the conservation officer working  2 maps -- sorry, rephrase that question.  Were you using  3 the conservation officer working maps at that time  4 prior to the completion of the mylar maps?  5 A   Yes, we were.  6 Q   To your knowledge were there any changes in the  7 boundaries of the Skeena region traplines between  8 October 1984 and January 1986 on those -- shown on  9 those maps?  10 A   There were very few changes that did occur.  11 Q   I am referring to the conservation officer working  12 maps and the mylar maps.  Which changes are you  13 speaking about?  14 A   I can recall two or three instances where the lines  15 where the boundaries that I had put on the mylar, it  16 was brought to our attention that they were incorrect.  17 One of those instances is down in the Morice Lake area  18 at the mouth of the Nanika River and it was brought to  19 my attention by the trapper there that the boundary  20 was incorrect and, after subsequent review of the  21 files and the district CO. maps, et cetera, I did  22 change that boundary.  23 Q   And that was at Morice Lake?  24 A   Yes, it was.  The other change that I can recall is in  25 Tweedsmuir Park where the parks branch had negotiated  26 with several trappers to purchase those traplines from  27 them.  I reimbursed them for the effort and time that  28 they spent on those traplines with the intent to  29 taking those traplines, reverting them back to the  30 Crown and then to have them incorporated into our  31 system as a vacant trapline.  32 Q   And were those in or partially in the land claims  33 area?  34 A   I believe there was one or two traplines that would be  35 in the lands claim area.  36 Q   In January 1986, what use were you making of the ATN  37 mylar maps?  38 A  At that point I think all the mylar maps had been  39 completed and we were using -- we were beginning to  40 use them on a day-to-day basis to deal with trapline  41 inquiries.  42 Q   Now, I am referring you to Exhibit 24-A behind you.  43 Can you identify that map?  44 A   Yes, I can.  4 5 Q   And what is that map?  46 A   It is a photographic reproduction or reductions of our  47 mylar maps of our trapline maps and then taped 19337  R.W. Marshall (for Province)  In chief by Mr. Mackenzie  1 together to form that composite.  The only difference  2 is that the lands claim area boundary has been added.  3 Q   What is the scale of the mylar maps which you use in  4 the Skeena regional office?  5 A   They are a scale of one to 126,000.  6 Q   Is that the same to your knowledge as the scale on  7 that map, Exhibit 24-A?  8 A   No, it would not be.  These are reduced versions.  9 Q   You say that that's a reproduction of your mylars.  10 How can you say that?  11 A   I certainly can identify the various traplines and  12 shapes, the numbers, the general pattern as what I was  13 putting on the maps.  14 THE COURT:  That's 24-A, isn't it?  15 MR. MACKENZIE:  24-A, that's correct, my lord.  16 THE COURT:  What is 24?  17 MR. MACKENZIE:  There was no 24 to my knowledge.  24-B is the  18 booklet.  I am not aware that we have a 24.  19 THE COURT:  The booklet of what?  20 MR. MACKENZIE:  24-B is the supporting documentation, my lord,  21 with the alienations project, my lord.  We marked the  22 maps with an A designation and a supporting  23 documentation followed --  24 THE COURT:  All right.  25 MR. MACKENZIE:  — in sequence.  Mr. Grant tells me that or  26 advises me that they are for identification in some  27 cases.  2 8 THE COURT:  Yes, all right.  29 MR. MACKENZIE:  30 Q   I refer to Exhibit 24-B.  May we have that placed  31 before Mr. Marshall?  Referring you to tab C in that  32 booklet, Exhibit 24-B.  The first document is the  33 letter dated December 22, 1986.  Is that your letter?  34 A   Yes, it is.  35 Q   That's your signature on page 2?  36 A   Yes.  37 Q   It's actually page 4(a) of the document Exhibit 24-B.  38 And there is an enclosure with that letter.  What is  39 that enclosure?  40 A   It's a computer generated list of all our registered  41 traplines.  42 Q   You sent that to Mr. McCurdy on that page?  43 A   Yes.  44 Q   Was that a current list of the traplines in the Skeena  45 region at that time?  46 A   Yes, it is.  47 Q   And do you maintain a data bank with registered 1933?  R.W. Marshall (for Province)  In chief by Mr. Mackenzie  1 traplines in the Skeena region listed?  2 A   Yes, we do.  3 Q   You keep it up to date?  4 A   Yes.  5 Q   What basis do you keep it up to date, or how often do  6 you update it?  7 A   It is updated as required whenever there is a change  8 in registration or trapline number, an amalgamation.  9 We receive a printout of that information probably on  10 a quarterly basis.  11 Q   Turning over to page 27 of Exhibit 24-B, there is a  12 map with a scale of 1 to 250,000.  This is an excerpt,  13 appears to be an excerpt from a map with the Thutade  14 Lake appearing in the lower centre of the map.  Can  15 you identify -- that's an excerpt.  Can you identify  16 this, the map from which this excerpt was taken?  17 A   It would be a xeroxed portion of the assign trapper  18 number map that the Prince George office would have  19 produced.  20 Q   And referring to page 28, can you identify that?  21 A   It would be the same.  22 Q   And referring to page 30, can you identify that map?  23 A  Again, it would be the same thing, yes.  24 Q   Referring to page 31, can you identify that map?  25 A   Yes, I can.  26 Q   And page 33, can you identify that map?  27 A   Yes, I can.  28 Q   And page 34, can you identify that map?  29 A   Yes.  30 Q   You say you have seen -- you say you have seen these  31 maps before?  32 A  We have a copy of the full map sheets in our office.  33 MR. MACKENZIE:  Are those -- do those maps show trapline areas  34 within the Skeena region?  35 MR. GRANT:  Which, the ones here or —  36 MR. MACKENZIE:  37 Q   The ones at page 27 to 34?  38 A   No, they do not.  39 Q   Why do you have those maps in your office?  40 A   During the process of producing those mylar maps I  41 wished to make absolutely certain that the traplines  42 along our common boundary did not overlap.  43 Q   And these -- you have already indicated that these are  44 traplines in the Omineca Peace District Region?  45 A   Yes.  46 Q   Now, moving to a new subject.  Do you currently in  47 your office in Smithers have a file for every 19339  R.W. Marshall (for Province)  In chief by Mr. Mackenzie  1 registered trapline in the Skeena region?  2 A   Yes, we do.  3 Q   And does that include all the Skeena region traplines  4 shown on this map, Exhibit 24-A?  5 A   It would, yes.  6 Q   Have you reviewed those files for the registered  7 traplines in the Skeena region?  8 A   Yes, I have.  9 Q   And why would you do that?  10 A  As mentioned as part of the process of putting those  11 boundaries on the mylars, I would, as I was working on  12 a given trapline, I would pull the associated file to  13 ensure that the boundaries on the mylars reflected the  14 contents of the files.  15 Q   What specific document if any in the file would you  16 refer to to verify the boundaries?  17 A   Certainly the primary piece of information were the  18 old applications for trapline registrations on which  19 were shown the metes and bounds descriptions of these  20 traplines.  21 Q   And have you reviewed the file and registration form  22 for every registered trapline in the Skeena region?  23 A   Every one that was available, yes.  24 Q   When did you review those files?  25 A  Would have occurred through 1983 to 1986.  26 Q   And are those files kept in the normal course of  27 business in the Smithers office?  28 A   Yes, they are.  29 Q   Were any of those files created for the purpose of  30 this litigation?  31 A   No.  32 Q   You have signed certificates listing the contents of  33 many of those Smithers office files?  34 A   Yes, I have.  35 Q   Referring to Exhibit 1120 volume 1.  Madam registrar,  36 do you have a copy of that?  Referring you to tab 1 of  37 that volume 1 Exhibit 1120.  Did you sign that  38 certificate?  39 A   Yes, I did.  40 Q   And did you review the contents of that file as are  41 listed in the certificate?  42 A   Yes, I did.  43 Q   Do you adopt the statements in that certificate which  44 you signed as your evidence today?  45 A   Yes.  46 Q   Did you follow the same procedure for all the  47 certificates which you signed relating to the Smithers 19340  R.W. Marshall (for Province)  Cross-exam by Mr. Grant  1 office trapline files?  2 A   Yes, I did.  3 Q   Do you adopt the statements in all the certificates  4 which you signed as your evidence today?  5 A   Yes.  6 MR. MACKENZIE:  That completes the examination, my lord.  7 THE COURT:  Mr. Frey?  8 MR. FREY:  None, my lord.  9 THE COURT:  Thank you.  Mr. Grant.  10  11 CROSS-EXAMINATION BY MR. GRANT:  12 Q   Mr. Marshall, you reviewed these files -- just want to  13 be clear.  You reviewed the files held in the regional  14 office between '83 and '86?  15 A   That's correct.  16 Q   And as I understand it, and Mr. Steventon -- you were  17 present during Mr. Steventon's evidence in court, were  18 you --  19 A  Most of it, yes.  20 Q   -- yesterday in court, and you heard his evidence?  21 A   Yes.  22 Q   As I understand, there were two -- there was pre '83,  23 pre this transfer over from conservation officers to  24 the regional office of trapline administration, the  25 district conservation officers held the files?  26 A   That's correct.  27 Q   And there was a district conservation officer in  28 Smithers for example that had the files relating to  29 Smithers?  30 A   Yes.  31 Q   And same in Hazelton and Burns Lake and the other  32 places with the district C.O.s?  33 A   Yes.  34 Q   And were you involved in the amalgamation of those  35 files, the district CO. files, into the regional  36 office?  37 A   Yes.  38 Q   And did you do all of that yourself?  39 A  Myself and another assistant, yes.  40 Q   Who was that?  41 A  A temporary worker by the name of Brigitte Ruloff.  42 Q   Okay.  Now, the documents that you have certified, you  43 certified I believe for example tab 1 you certified in  44 April of this year?  If you want to look at tab 1.  45 A   Yes.  That's correct, yes.  46 Q   Did you review that particular file shortly before  47 April of this year?  Is that around the time that you 19341  R.W. Marshall (for Province)  Cross-exam by Mr. Grant  1 looked at it or was it much earlier?  2 A   I am sorry, I have lost you there.  I reviewed all the  3 files on several times.  4 Q   In order -- as I understand, you were given a list of  5 these five documents.  They were sent to you by Mr.  6 Mackenzie, right?  7 A   Yes.  8 Q   And the form of certification -- this isn't your  9 wording, this was wording that was presented to you?  10 A   That's correct.  11 Q   And you were given a series of certificates and asked  12 to check to see if these documents, if these five  13 documents were in the file under this number --  14 A   That's correct.  15 Q   -- tab 1, that's the process?  16 A   Yes, yes.  17 Q   When were you given the list in relation to the date  18 that you signed it?  19 A   The same day.  2 0 Q   And is that the same with all of them?  21 A   Yes.  22 Q   Okay.  And so you on that day would have checked that  23 file?  24 A   Exactly.  25 Q   Okay.  So you didn't rely of course on your earlier  26 research of preparing the mylars for this?  27 A   No.  28 Q   Fair enough.  Now, how often -- let us say that you  29 said that you went to the Hazelton office and checked  30 the files there.  How often did you go to the Hazelton  31 office?  How many times did you go there to check the  32 files in the '83 to '86 period?  33 A   Probably not more than three times.  34 Q   Did you check the files three times or would you just  35 go through a certain amount the first time and the  36 second time --  37 A  My initial visit I would sit down and attempt to go  38 through every file, go through all the information  39 that they had available.  Subsequent visits to their  40 office I was probably searching for more direct  41 information.  42 Q   On one or two files that you were having difficulty  43 with?  44 A   That's correct.  45 Q   Did you pick up, on that first visit, all these files  4 6 and take them back with you and then develope your own  47 set? 19342  R.W. Marshall (for Province)  Cross-exam by Mr. Grant  1 A   No, I didn't, no.  2 Q   I understand your undergraduate work was in marine  3 biology?  4 A   That's correct.  5 Q   And you took no training courses in mapping, did you?  6 A   No, I didn't.  7 Q   Okay.  So your work with the preparation of mylars was  8 simply a tracing task; you traced what you saw on the  9 CO. working map, enlightened by your reading of the  10 file, onto a mylar?  11 A   Generally speaking, yes.  12 Q   Drew a black line or whatever, okay.  And I take it  13 that your work with the synopsis and that work was a  14 similar technical task of drawing lines on a map that  15 was already provided to you, copied from another  16 document, for example?  17 A   Generally speaking, yes.  18 Q   You have no idea as to the process as to how the CO.  19 working maps -- you have no personal knowledge as to  20 how the CO. working maps were created?  21 A   No, I don't.  22 Q   And you have no knowledge as to the document, as to  23 the foundations for the descriptions in the trapline  24 files was created?  25 A   That's correct.  26 Q   Now, you have said there were two advantages to the  27 mylars, is my note indicates.  One was that you could  28 use a finer tip line and you didn't have to do these  29 double lines?  30 A   That's correct.  31 Q   The second was that you could make paper prints from  32 the mylar, print them off as and when needed?  33 A   Yes.  34 Q   And there was a third advantage, isn't there, which is  35 that you can amend the mylars relatively easily; that  36 is, when there is a change you can make that change on  37 the mylar without erasing, ruining a paper copy?  38 A   That's correct, yes.  39 Q   On the CO. working maps are things like, after a  40 name, a check and sometimes an X.  You have no idea --  41 you didn't put those on?  42 A   No, I didn't.  43 Q   Did you make any markings on the CO. working maps?  44 A   None that I can recall, no.  45 Q   So any of the material on that, for example, Exhibit  46 1120 I believe it is, the one that you just looked at,  47 that would have been something that was given to you 19343  R.W. Marshall (for Province)  Cross-exam by Mr. Grant  1 as is and you just used it as one of your many bases?  2 A   That's correct.  3 Q   If there is a gap between two traplines, for example,  4 you don't know why that was but what you were trying  5 to do on the mylars is to make a line with a trapline  6 on the north and on the south, for example, of that  7 line and no gap in between?  8 A   That's correct.  9 Q   And that's what you effectively did with the mylars  10 was that you created a solid body of trapline  11 registrations?  12 A   That's correct.  13 Q   I'd like to show you a memo dated January 19, 1987,  14 two pages from Mr. Bandy.  It is a memo to file note,  15 Re:  Trapline Maps.  Have you seen that before?  16 A   I can't recall having specifically seen it, no.  17 MR. GRANT:  Now, this is a document, my lord, I put to Mr.  18 Steventon yesterday.  Now, Mr. Bandy says in the file  19 note, "I also asked Doug...", and Mr. Steventon  20 confirmed that this was a discussion he had yesterday,  21 he is referring to Doug Steventon there.  He says, "I  22 also..."  23 MR. MACKENZIE:  Can I give it to him to look at it?  2 4    MR. GRANT:  25 Q   It doesn't matter.  I can take this one over, Mr.  26 Mackenzie.  If you want to follow me, I'll take this  27 over, I don't want to trick you or anything.  28  29 "I also asked Doug if it is possible to identify  30 changes in traplines (boundary/ownership) that  31 have taken place between the date of the issuance  32 of the writ (October 23, 1984) and the period when  33 the maps were provided for copies (June, July  34 1986).  He responded that he can provide this  35 information but only by review of each and every  36 file.  I advised him not to undertake this  37 research at this time because of the amount of  38 time that would have to be devoted.  (I also felt  39 that, if this information became important in the  40 litigation proceedings, the research could be  41 tailored to meet the specific needs of the  42 litigants.)"  43  44 And that's the last paragraph of this memo that I have  45 read to you.  46 Now, firstly, do you agree with what Mr. Steventon  47 advised Mr. Bandy, that, in order to determine the 19344  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  R.W. Marshall (for Province)  Cross-exam by Mr. Grant  changes between the maps, that is the map generated  from the mylar, we will talk about Exhibit 24-A for  example, between that map and any changes in October  of 1984, October 23, '84, it would be necessary to  review all of the files?  Do you agree with Mr.  Steventon?  Yes, I do, yes.  I take it from your evidence that you of course have  not done that?  That's correct.  You weren't asked to do it and you didn't do it.  And  when we talk about the files, we are talking about  what is the Smithers trapline files series which are  the 20 volumes, some of which you certified?  That's correct.  MACKENZIE:  Well, my lord, Mr. Grant has stated Mr.  Marshall's evidence as having said he didn't review  the files.  Of course Mr. Marshall did say he reviewed  every file in the regional office preparing mylars so  to that extent perhaps Mr. Grant wanted to rephrase  his question.  I am talking about this process.  I think the  witness understood what I meant.  I was talking about  for this purpose.  I know the witness talked about  what he did in '83 through '86.  The facts are not in dispute in that regard.  A  Q  A  Q  A  MR.  MR. GRANT  THE COURT  MR. GRANT  Q  A  Q  A  Q  A  Q  A  No.  I wasn't trying to mislead the witness at all.  I  was talking about this process.  You understood what I  meant, that you didn't review the files for these  purposes to make the comparison between '84 and '86?  That's correct.  That's right.  It is important for you to speak for  madam reporter, say yes or no.  That's correct, yes.  Okay.  One of the things that you did indicate in the  '83 to '86 period is that you, where you had, and my  note is it was where you had problems with boundaries,  for example, you would go back and you said you would  take a number of steps and you said you would go back  to the conservation officers.  You remember saying  that this morning?  As one of the steps, yes.  You would also go to the working maps, Mr. Mackenzie  suggested that, and you agreed you went to the working  maps as well?  We would start with the high mylar working maps. 19345  R.W. Marshall (for Province)  Cross-exam by Mr. Grant  1 Q   I am sorry, the CO. working maps you mean?  2 A   No.  As the mylar maps became completed we would begin  3 to use those as our day-to-day working maps.  4 Q   Okay.  Just before you go on, was that before they  5 were certified by Mr. Willett?  6 A   Certainly, yes.  7 Q   Okay.  Go ahead.  8 A  When there were inquiries, if I can retrace, when  9 there were inquiries, if those mylar map traplines  10 maps had been completed we would use that as our first  11 step.  If there seemed to be a continuing problem we  12 would go back a little bit further into the use of the  13 conservation officer working maps.  14 Q   Okay.  That's the second step you'd usually go?  15 A   The second step.  The third step would be to go to the  16 specific file and pull that one and go through all the  17 information in there to shed some light on whatever we  18 are discussing.  19 Q   I think you also said you went back to the  20 conservation officers?  21 A   If the problem persisted we would go everywhere that  22 we thought possible, including district conservation  23 officers, R.C.M.P. offices, archives, maps.  24 Q   Former conservation officers involved with the  25 traplines, if they were available?  26 A   I believe we did on a few occasions, that's correct.  2 7 Q   You know Mr. Andy Ackerman?  2 8 A   Yes, I do.  29 Q   And he was -- was he -- what was his position when you  30 took your position in '81?  31 A   He was a conservation officer in Smithers.  32 Q   And was he the person in charge of the files in  33 Smithers, the trapline files between '81, '83 period?  34 A   Not directly, no.  It was Mr. Tom Fraser.  35 Q   You knew that Mr. Ackerman did have some knowledge  36 relating to the traplines?  37 A   I would assume so, yes.  38 Q   Did you go back to Mr. Ackerman?  39 A   No, I can't recall.  40 Q   I thought I had seen a note, I just don't have it at  41 hand, but I thought there was some reference that you  42 had gone back to him on an individual basis, but you  43 don't recall that?  44 A   I can't recall it, no.  45 Q   Did you know Mr. Les Cox?  4 6 A   Yes, I do.  47 Q   And Mr. Les Cox was senior conservation officer and he 19346  R.W. Marshall (for Province)  Cross-exam by Mr. Grant  1 was the conservation officer in charge of the Smithers  2 region between '48 and around '78.  You know that from  3 your review of the files and your knowledge of Mr.  4 Cox?  5 A   No.  I couldn't place dates on it, no.  I knew he was  6 there and he was acting but I couldn't place dates on  7 it.  8 Q   Don't recall from your review of the files that he was  9 there for a long period of time?  10 A   I would say a substantial length of time, yes.  11 Q   Okay.  And you were -- did you go back to ever talk to  12 Mr. Cox about traplines?  13 A   I can recall at least one instance where I did contact  14 him.  15 Q   Okay.  16 A   The specifics I can't recall, no.  17 Q   Do you remember about the trapline it was concerning?  18 A   No, I can't recall.  19 Q   Okay.  But you contacted him for information as part  20 of this investigative process in that instance?  21 A   That's correct.  22 Q   Okay.  Were you -- what was your function between --  23 in 1982 in the Ministry?  What was your job?  24 A   Same as it is now, I was a wildlife technician.  25 Q   Were you involved at all with traplines then?  26 A   No, I wasn't.  27 Q   Were you aware as a result of your subsequent research  28 of the dispute and appeal of Mr. Johnny David relating  29 to his trapline boundaries that occurred in 1982?  30 A   I can't recall.  31 Q   Okay.  Did you attend a meeting in Fort Babine in 1987  32 relating to traplines?  33 A   Yes, I did.  34 Q   And you did a memo to the file reporting on that  35 meeting?  36 A   I believe, yes, I did.  37 Q   Showing you a memorandum dated July 29, 1987.  That's  38 your signature on the bottom?  39 A   Yes, it is.  40 Q   Now, this memo reflects what occurred at that meeting,  41 that is your report of what occurred at the meeting?  42 A   Yes, it is.  43 Q   Now, much of the talking was in Gitksan or  44 Wet'suwet'en or appears to be Wet'suwet'en in this  45 case because it was a Fort Babine meeting and you  46 didn't understand it and you made reference to it?  47 A   That's correct. 19347  R.W. Marshall (for Province)  Cross-exam by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR.  MR.  A  Q  A  MACKENZIE:  here  GRANT:  Q  A  Q  MR.  A  Q  A  Q  A  Q  A  Q  A  Q  A  GRANT  You know Alfred Mitchell, you refer to as speaker, you  know who he is or who he was?  I can't recall specifically, no.  You wouldn't recognize him?  I don't think I would, no.  Excuse me.  I am reading along with Mr. Grant  The third paragraph says the representative was  speaking Carrier and Mr. Grant says Wet'suwet'en so,  to that extent, perhaps Mr. Grant could assist by just  reading it correctly.  Well, I wasn't reading it, my lord.  I think the  document speaks for itself.  Mr. Marshall, you know when I say Wet'suwet'en,  you know -- you know that there are Wet'suwet'en  people that live in the Smithers area from your  personal knowledge, don't you?  You know what I am  referring to, don't you?  Yes.  And the people of Moricetown are Wet'suwet'en.  And  now in this document -- in this document you say you  make a list of four points.  Were those points that  were raised at the meeting?  I am only asking you  because it is sort of your shorthand and you can  explain it.  They are points that were made at the meeting, yes.  The first point, non-use of traplines as their right,  was this -- this was a concern with respect to a  policy that was implemented in 1982 of "use it or lose  it", relating to traplines?  That's correct.  And this is not the first time you heard -- you had  concerns expressed -- that Indian people objected to  the "use it or lose it" policy to you, is it?  No, it wasn't the first time.  No.  You would agree with me that this was a matter of  dispute that was raised with you on previous occasions  since you took over the traplines?  On some occasion, yes.  By Indian trappers?  Not only Indian.  Okay.  But -- okay.  Not only Indian -- Indian  trappers and non-Indian trappers?  That's correct.  This document I'd ask to be marked as the next  exhibit in that binder, my lord, I think there is  still room, it will be 1121 -- 19348  R.W. Marshall (for Province)  Cross-exam by Mr. Grant  1  THE  REGIS1  2  THE  COURT  3  THE  REGIS1  4  MR.  GRANT  5  6  7  8  9  10  11  MR.  GRANT  12  Q  13  14  A  15  Q  16  17  18  A  19  Q  20  A  21  22  Q  23  24  25  26  A  27  Q  28  29  30  31  A  32  Q  33  A  34  35  36  37  38  Q  39  40  A  41  Q  42  43  44  45  46  47  A  PRAR:  13.  :  I think it is 13.  PRAR:  Yes.  :  So in that binder 1121, 1 to 12 would be related to  Mr. Steventon's cross-examination, 13 followed Mr.  Marshall's.  (EXHIBIT 1121-13 - MEMO DATED JULY 29, 1987 RE:  REGIONAL BOUNDARIES AND POLICIES)  I take it from the last sentence that your address was  not interpreted; is that right?  That's correct.  From the time in 1983 when you took -- I think you  said what time was it in '83 that you began to be  involved in the traplines?  I don't think there is a specific date.  Was it like January of '83 or June or December?  I really can't put a place or can't place a time.  It  was a gradual phase-in.  Okay.  From that time in '83 until the present were  you involved in any resolution of the non-use of  traplines issue, that is, the "use it or lose it"  policy?  I am sorry, could you repeat that?  Were you involved in trying to resolve this dispute  or, I shouldn't say dispute, in trying to resolve the  problem of trappers saying to you it is not right  disputing the non-use issue?  Did you do anything?  No, I didn't.  Or did the Skeena region do anything?  My only comment would be that we were, when that  concern was raised to us by trappers, we would attempt  to explain why we were having -- that regulation was  in effect.  We would also tell them that there were  provisions for exemptions from that rule.  You haven't recommended that there be change in the  policy for example?  No.  Do you agree with the point that was raised that there  have been boundary changes, this is the second point,  part of the second point, boundary changes without any  input?  Is that -- in other words, do you agree that  that has occurred in this transition from the old  system to the ATN system?  I find it difficult to comment on that because 19349  R.W. Marshall (for Province)  Cross-exam by Mr. Grant  1 starting in 1983 every attempt was made to make sure  2 that we didn't do that type of thing, that everybody  3 was informed, everybody was aware of what was going on  4 and, prior to '83, I can't comment on it.  I wasn't  5 involved.  6 Q   No, I understand prior to '83.  I am talking about  7 the -- you were involved from the beginning, actually  8 you really were instrumental from the beginning of the  9 transition from the old system to the ATN system from  10 your evidence.  You'd agree with that?  11 A   That's correct.  12 Q   Are you aware of and were you involved in  13 correspondence relating to a trapline held by the late  14 Buddy Williams?  Does that ring a name -- do you  15 remember that name?  16 A   I can't recall it specifically, no.  17 MR. GRANT:  Okay.  My lord, to expedite — well, actually we  18 have -- maybe it is a convenient time to take a break  19 and I'll just arrange these documents.  20 THE COURT:  All right, thank you.  21 THE REGISTRAR:  Order in court.  Court stands adjourned for a  22 short recess.  23  24 (PROCEEDINGS ADJOURNED AT 11:15 a.m.)  25  26  27 I hereby certify the foregoing to be  28 a true and accurate transcript of the  29 proceedings herein, transcribed to the  30 best of my skill and ability.  31  32  33  34  35  36 TANNIS DEFOE, Official Reporter  37 United Reporting Service Ltd.  38  39  40  41  42  43  44  45  46  47 19350  R.W. Marshall (for Province)  Cross-exam by Mr. Grant  1 (PROCEEDINGS RECONVENED PURSUANT TO THE MORNING BREAK)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Mr. Grant.  5 MR. GRANT:  I've — just to expedite matters before — I'll just  6 give you a series of documents, Mr. Marshall, rather  7 than just one.  I think there's four documents that I  8 have just -- these are documents relating -- that are  9 in the file of Mr. — of the late Mr. Buddy Williams.  10 Do you recognize these documents?  Have you seen them  11 before or do you know?  12 MR. MACKENZIE:  Excuse me, which file is that, Mr. Grant?  My  13 lord, Buddy Williams' file.  What --  14 MR. GRANT:  Number 131.  15 MR. MACKENZIE:  Of the trapline file?  16 MR. GRANT:  Your trapline file, yeah.  17 MR. MACKENZIE:  Oh, thank you.  18 MR. GRANT:  19 Q   I'm sorry, wait.  Yes, 131.  Do you remember having  20 seen those documents before?  21 A   Not specifically, no.  22 Q   Okay.  Can you look at volume 1?  Just put those aside  23 for the moment.  Look at volume 1 of Exhibit 1120.  24 That's that large binder you have there.  At tab 131.  25 Now, that certification is yours, isn't it?  26 A   Yes, it is.  27 Q   And if you see -- you can see that in that certifica-  28 tion you refer to a document, number 15, being April  29 5th, '77, memorandum to Dave Crack from L.J. Cox  30 regarding the Harold Sinclair trapline.  Do you see  31 that?  32 A   Yes, I do.  33 Q   And that's one -- you recognize that as -- that  34 matches the document -- one of the documents I just  35 gave you?  36 A   Certainly corresponds to the description, sure.  37 Q   And then if you look at tab 14, it -- I'm sorry, not  38 tab 14 -- number 14 on your certification, you see the  39 description there corresponds with the December 15th,  40 1981 certification of the band council?  41 A   Yes.  42 Q   And if you look at tab 13 or document -- 13  43 corresponds with the copy of the letter to Rick  44 Marshall from Neil Sterritt dated February 3rd, 1984?  45 A   Yes.  46 Q   And it's regarding the same trapline number?  47 A   That's correct. 19351  R.W. Marshall (for Province)  Cross-exam by Mr. Grant  1  Q  2  A  3  Q  4  5  6  7  8  9  A  10  MR. GRANT  11  12  13  14  15  16  17  18  19  20  21  22  THE COURT  23  MR. GRANT  24  25  26  THE COURT  27  MR. GRANT  28  29  THE COURT  30  MR. GRANT  31  32  (EXHIBIT  33  34  (EXHIBIT  35  36  (EXHIBIT  37  38  (EXHIBIT  39  40  MR. GRANT  41  Q  42  A  43  Q  44  45  46  A  47  Q  And it's two pages, the same as --  Yes.  And then if you look at -- just one moment.  If you  look at the long document, February 2nd, 1986 --  sorry, my lord.  Well, it looks like number 25.  It's  the same date, and it's a copy of a letter from Rick  Marshall from the Gitwangak Band Council dated --  regarding Yal, Robert Bruce Johnson (sic) et al?  It appears to fit, yes.  :  Now, just what I'd like to do, my lord, is mark  April 5th, 1977, as 1121-14, dash 14; December 15th,  1981, as 1121-15; February 3rd, '84, as 1121-16.  That's exhibit, of course.  And February 2nd, 1986, as  Exhibit 1121-17.  Yes, there is a reference in a  letter of March 9th, 1987, from Mr. Steventon to Mr.  Sterritt that the February 3rd, 1984 letter Mr.  Steventon says:  "I assume the date should read  February 3rd, 1987."  So, my lord, you may make a note  that in fact the February 3rd, '84 letter probably is  a typographical error, and it should be February 3rd,  1987.  That's the second last one, my lord.  :  February 3rd.  :  The one to Mr. Rick Marshall from Mr. Sterritt.  It's the short letter, not the long one.  But it's  pages long.  Exhibit 1121-16.  :  Should be '87.  :  Yes, I think it can be noted that this was  apparently 1987.  :  All right.  :  Since I've already numbered them,  ask to re-number those.  1121-14 - MEMO DATED APRIL 5, 1977 RE REGISTRATION OF  TRAPLINE TO WILLIAMS)  1121-15 - LETTER DATED DEC  BAND COUNCIL RE WILLIAMS)  1121-16 - LETTER DATED FEB  REGISTRATION APPEALS PROCEDURE)  1121-17 - LETTER DATED FEB. 2, 19  A TRAPLINE)  two  I'm not going to  RI  15, 1981 FROM GITWANGAK  3, 1987 RE TRAPLINE  E)  16 RE REGISTRATION OF  Now, have you had a chance to look at the documents?  Briefly, yes.  Now, does it refresh your memory about your  involvement in the resolution of the succession of the  Buddy Williams' trapline?  No, it doesn't yet.  Were you involved at all in the resolution of that? 19352  R.W. Marshall (for Province)  Cross-exam by Mr. Grant  1 A   I can't recall.  2 Q   Do you remember receiving Exhibit 1121-16, the letter  3 from Mr. Sterritt addressed to yourself?  4 A   I would assume so, yes.  5 Q   You assume you received it, but you don't remember?  6 A   No, I can't recall specifically.  7 Q   That's fine.  And what about 1121-17?  Do you remember  8 receiving that?  That's the long letter from the  9 Kitwancool and Gitwangak chiefs.  10 A  Again the same thing.  I can't recall specifically  11 receiving that.  12 Q   And you've had a chance to look at it, and it doesn't  13 refresh your memory about that?  14 A   No.  There's a substantial amount of information here.  15 I can't pick up on the detail of what's involved.  16 Q   Okay.  Well, I'd like you to look at the letter  17 1121-17.  Take a moment to look at that letter.  18 That's the large -- see, you don't have yours marked  19 yet.  That's right, that's the letter there.  Just  20 take a moment to look at that so you can refresh your  21 memory.  Let me know when you've had a chance to look  22 at it.  23 A   I've looked at it now.  24 Q   Does that assist you to remember anything about the  25 circumstances surrounding that and your involvement in  26 it?  27 A   It gives me a general impression of what was  28 happening, yes.  2 9 Q   Do you remember anything about it now?  30 A   Not specifically, no.  31 Q   Okay.  Let me ask you this:  Was -- when you dealt  32 with the question or when persons -- I'm just using  33 this as an example, okay, so speak more generally if  34 you wish to if you can't remember the specifics, but  35 when Indian people raised with you a concern or  36 their -- disagreed or disputed as to the successor or  37 said this person should be registered, not that  38 person, did you make every effort to resolve that?  39 A   Yes.  40 Q   And that's actually part of your job now and since '83  41 since you've been involved in traplines?  42 A   That's correct.  43 Q   And much of the correspondence relating to concerns of  44 successorship of traplines was directed to you within  45 the department?  46 A   For the most part.  47 Q   When I say directed to you, even if it was addressed 19353  R.W. Marshall (for Province)  Cross-exam by Mr. Grant  1 to somebody else --  2 A   That's right.  3 Q   -- your superior would give it to you?  4 A   Right.  5 Q   And is it fair to say that as a result of your work  6 over the last six years the succession of traplines --  7 you've become knowledgeable about the succession of  8 traplines and Indian concerns relating to them?  9 A   That's correct.  10 Q   And would you agree with me that there have been many  11 instances where Indian people either through the  12 tribal councils that you're dealing with or band  13 councils or individual chiefs, as in 1121-17, have  14 requested that it be passed through a matrilineal  15 rather than a patrilineal line?  16 A   There certainly were some instances of that, yes.  17 Q   And have you made every effort to follow that practice  18 wherever possible?  19 A  Within the confines of my -- I shouldn't say my, but  20 within the confines of our policies and procedures we  21 made every effort to.  22 Q   Okay.  Well, what I understand you to mean then is to  23 the extent that you found it possible within your own  24 restraints that were imposed upon you you've done  25 that?  26 A   Yes.  27 Q   I'm referring you to a letter of June 26, 1985, and  28 ask if it's your signature on that letter?  29 A   Yes, it is.  30 Q   And do you recall the circumstances surrounding the  31 transfer of the late Charlie Sampson's trapline to  32 David Blackwater Sr.?  33 A  Again, yes, I have a general recollection of this  34 particular one, but the specific details, nuances, I'd  35 have to sort of see the file, make sure I've got all  36 the -- you know -- particular little points involved,  37 yes.  38 Q   Okay.  But you do remember -- what I'm asking, you do  39 remember about -- there was an issue about the  40 transfer of the late Charlie Sampson's trapline?  41 A   That's correct, yes.  42 Q   And you remember that Perry Sampson was the son of  43 Charlie Sampson?  44 A   Yes.  45 Q   I'm just trying --  46 A   That's right.  47 Q   And that, of course, under your normal policy you 19354  R.W. Marshall (for Province)  Cross-exam by Mr. Grant  1 would transfer it from father to son?  Because it was  2 the closest family living relative, you would transfer  3 it to the closest family relative?  4 A   Not necessarily.  We would entertain the application  5 from any of the immediate family members.  6 Q   Right.  Okay.  Now, in this letter of June 26th, '85  7 you see that -- you've written to Mr. David Blackwater  8 Sr., and you see that there's a reference to a band  9 council resolution passed March 30th, '84  10 "transferring the Charlie Sampson you, but  11 (the) Ministry of Environment considers the line  12 vacant and is seeking Charlie Sampson's relatives."  13 Do you see that?  14 A   Yes.  15 Q   Now, would you agree with me that the -- that one of  16 the ways of your department communicating with band  17 councils -- with Indians regarding succession was  18 through the utilization of band council resolutions?  19 Many of the files have band council resolutions in  20 them saying this person should be the successor?  21 A   That's correct.  22 Q   And are you aware from your knowledge of the trapline  23 system that you in some sense inherited that that  24 was -- in the sense that you took over to a degree --  25 that, in fact, that was a -- the -- your department  26 requested band council resolutions to confirm  27 succession of Indian traplines?  Is that not apparent  28 from the files?  29 A   In some instances we requested copies of that kind  30 of -- you know -- that document to assist us in  31 determining who has interest in that trapline.  32 MR. GRANT:  Right.  So that the nuances of the feast system —  33 do you know what I mean when I refer to the feast  34 system?  35 MR. MACKENZIE:  Did he finish his last answer, Mr. Grant?  36 MR. GRANT:  I thought he was.  37 THE WITNESS:  Yeah.  38 MR. MACKENZIE:  Thank you.  3 9 MR. GRANT:  40 Q   You're aware through correspondence that Indian people  41 have referred to you that succession has occurred  42 through the feast system?  43 A   Yes.  44 Q   And you know what they're generally referring to,  45 don't you?  46 A   In a very general sense, yes.  47 Q   And what do you understand that to be? 19355  R.W. Marshall (for Province)  Cross-exam by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  A  Q  A  Q  A   It's a system whereby the assets of the deceased --  no, I'm sorry, maybe I don't.  Q   Well, when -- the correspondence to you relating to  the feast system is -- is that the successor of this  trapline has been determined in the feast hall, or  something like that is what's told to you, right?  Okay.  Correct.  And you agree with that.  That's the kind of response  you get.  But, of course, have you ever attended a  Gitksan or Wet'suwet'en feast?  No, I haven't.  So would you agree with me that your request or the  request of your department for band council  resolutions was a way for you to have some formal  document confirming the successorship however the  Indian people have determined it?  Would that be a  fair way of stating it?  A   I have some difficulty with your term "confirming."  I'm not too sure what context you're using that.  Q   What I'm saying is somebody could come into your  office and say, look, the feast was held last week,  and I'm the guy who the chiefs chose as the successor,  but it -- but you would say, well, if that's the case,  have the band council send us a resolution to that  effect, or your predecessor.  You would agree that  that is the -- that's what I mean by confirming.  A   Quite often we would request that, yes.  Q   Yes.  Because you would deal -- you agree that your  department deals with band councils and tribal  councils as representatives of the Indian trappers?  A   In some instances, yes.  Q   Okay.  Of course, you also dealt with, like in  1121-17, with hereditary chiefs themselves, individual  chiefs?  A   Individuals, yes, yes.  MR. GRANT:  Maybe this document, June 26, '85, could be marked  the next exhibit, my lord.  THE COURT:  All right.  THE REGISTRAR:  1121-1?  (EXHIBIT 1121-18 - LETTER DATED JUNE 26, 1985 RE BLACKWATER  TRAPLINE)  MR. GRANT:  Q   I just ask if you recall seeing this document?  And  it's a document dated in 1908.  Do you remember that  document? 19356  R.W. Marshall (for Province)  Cross-exam by Mr. Grant  1 A   I can't recall, no.  2 MR. GRANT:  I'm not suggesting it was sent to you either, at  3 least not the original of it.  Okay.  I'd ask that  4 that be marked as Exhibit 1121-19, my lord.  5 MR. MACKENZIE:  I object to that.  6 MR. GRANT:  Why?  It's an archival document, my lord.  7 MR. MACKENZIE:  Well, where's the evidence of that?  8 THE COURT:  It's not taken from the files of the defendant?  9 MR. GRANT:  This document is in — it is in the files of the  10 provincial defendant, and it's also an archival  11 document.  It's within the trapline files.  12 THE COURT:  Is it a document that your friends produced too, or  13 did you obtain it from the archives?  14 MR. GRANT:  This document was a document that was obtained --  15 copies of this document I believe are on the federal  16 document list from federal archives.  If my friends  17 object to it at this stage, rather than spending time  18 on it I will get the confirming numbers.  I believe a  19 copy of this document is also in the file.  I'd like  20 to mark it for identification here and seek what's --  21 THE COURT:  All right.  22 MR. MACKENZIE:  Well, my lord, we're not objecting to the lack  23 of archival certification.  It just has no relevance  24 at all to this witness or this evidence.  25 THE COURT:  I can hardly read it, so I'm not in a position to  26 agree or disagree with that, Mr. Mackenzie.  27 MR. GRANT:  I think it does, and I think it will become  28 apparent.  29 MR. MACKENZIE:  Well, I don't.  30 MR. GRANT:  I would ask that it be marked as an exhibit for  31 identification in the sequence, and if my friends have  32 a concern -- if my friends don't object to it being  33 marked as an exhibit proper, it should be marked as an  34 exhibit proper.  35 MR. MACKENZIE:  I don't think it should be marked at all, my  36 lord, in my submission.  37 THE COURT:  Well, if your friend's going to try to put it in as  38 an archival document, it has to be marked for  39 identification so we know what it is he's going to  40 come back to and what we're talking about.  So it may  41 be marked as 1121-19 for identification.  42 MR. GRANT:  Thank you, my lord.  43 THE COURT:  Describe it as an illegible archival document.  44 MR. GRANT:  I'll describe it, my lord.  It is a letter —  45 THE COURT:  No, illegible letter.  46 MR. GRANT:  Oh, okay.  47 THE COURT:  What is the date?  7th.  I can read that.  7th. 19357  R.W. Marshall (for Province)  Cross-exam by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR. GRANT  THE COURT  MR. GRANT  THE COURT  MR. GRANT  THE COURT  7th day of June, 1908.  That's Mr. Loring's signature, is it?  That's Mr. Loring's signature.  Loring to whom it may concern.  It's the 7th of January, 1908, dated at Hazelton.  All right.  Thank you.  (EXHIBIT 1121-19 FOR IDENTIFICATION - ILLEGIBLE LETTER DATED  JANUARY 7, 1908, FROM LORING TO WHOM IT MAY CONCERN)  MR. GRANT:  Okay.  I'd like to — I'll give a series at once.  Okay.  Do you recall receipt of the July 11th letter  from Mr. Sterritt, and you responded on July 18th,  1985, to Mr. Sterritt?  MR. MACKENZIE:  Two questions there.  MR. GRANT:  Yes, there is.  If the witness has trouble with it,  he can break it up.  MR. MACKENZIE:  Yes.  Good.  THE WITNESS:  I don't recall specifically the — the one dated  July 11th, '85.  MR. GRANT:  Q   If you look at the July 18th letter, you can see that  you refer to it.  "Thank you for your letter of July 11, 1985 in  which you voice strong concern regarding a  letter that I sent to Mr. Blackwater Sr. and in  which you enclose a chart of the geneology of  the Wilps Niist."  So you -- this is a copy, this July 11th one but -- of  the letter that was delivered to your office?  A   I would agree, but I can't recall it specifically.  MR. GRANT:  You can't recall the specifics of the letter.  Okay.  I'd like the July 11th marked as Exhibit 1121-19.  I'm  sorry, 1121-20, and the July 18th as Exhibit 1121-21.  (EXHIBIT 1121-20 - LETTER DATED JULY 11, 1985 RE BLACKWATER  TRAPLINE)  (EXHIBIT 1121-21 - LETTER DATED JULY 18, 1985 RE BLACKWATER  TRAPLINE)  THE COURT:  I'm in the same position I was in yesterday, Mr.  Grant.  I really don't understand what this is all in  aid of.  I mean, the fact that the plaintiffs take a  position with respect to traplines and their  registration and administration is abundantly apparent 1935?  R.W. Marshall (for Province)  Cross-exam by Mr. Grant  1 from the evidence.  As I said yesterday, the  2 defendants have established that they have a system of  3 recording and administering traplines.  That issue is  4 abundantly clear.  I just simply don't understand why  5 we're going through all these specific illustrations  6 of that broadly based dispute and how that advances  7 anything anywhere.  8 MR. GRANT:  Well, as you raised yesterday, my lord, the issue of  9 the -- the issue of the alienation maps and of the  10 Smithers trapline files, the 20 volumes of Smithers  11 trapline files is an issue that goes, of course, to  12 the existence of their administration and administra-  13 tive regime.  Part of what the -- certainly the  14 cross-examination of the defendants has been and the  15 tenor of their evidence has been that this system has  16 supplanted or replaced the Indian system, the Gitksan  17 and Wet'suwet'en system, and I am only raising these  18 to demonstrate -- to tender evidence that the Indian  19 system -- well, you've heard abundant evidence that  20 the Indian system is ongoing, in our submission, of  21 course, but also that -- that the provincial defendant  22 through the Ministry of Environment has -- has in  23 their own way acquiesced in that system right up to  24 recent times.  Evidence has gone up to the '30s, '40s,  25 '50s, '60s, and now we have a witness talking about  26 the '80s?  27 THE COURT:  Both sides are accommodating the other wherever it  28 might be convenient to do so.  Apparently, both sides  29 have worked together in these things.  They don't  30 always agree, and I wouldn't expect them to.  I'm  31 almost thinking I'm sitting here hearing a dispute  32 about the indefeasibility of a certificate of title  33 when the issue is whether or not there's a torrens  34 system in place.  That seems to me what I'm listening  35 to, and if it isn't, I wish I understood what we were  36 doing because then I might understand it better.  37 MR. GRANT:  Yes, I appreciate —  38 THE COURT:  Because at the moment I simply don't understand why  39 we're doing this.  40 MR. GRANT:  Okay.  The submission I will make and the relevance  41 of this evidence goes to the utilization of the Indian  42 system by Fish and Wildlife.  43 THE COURT:  Well, as I said again yesterday, I won't stop you.  44 I would have thought that the accomodation back and  45 forth between the two different perspectives has been  46 abundantly demonstrated.  But if you consider it to be  47 a sufficiently important part of your case to adduce 19359  R.W. Marshall (for Province)  Cross-exam by Mr. Grant  1 the evidence, well then, I think probably I should  2 listen to it.  But I have to tell you I don't  3 understand why we're doing it.  4 MR. GRANT:  Okay.  Well, it also goes, of course, to the  5 response or the -- the development of the policy of  6 the provincial defendant relating to the issue of the  7 traplines as it applies to the plaintiffs, and the  8 purpose of that is to the extent that the defendants  9 may raise the issue of acquiescence or of -- I  10 shouldn't say -- of -- as you said yesterday I think,  11 even of extinguishment as an effect.  I can abbreviate  12 the approach to how to deal with this, and I think  13 it's appropriate to do that.  14 THE COURT:  Well, you do what you think you have to do.  I'm  15 here to harken to the evidence.  I know how juries do.  16 MR. GRANT:  I appreciate your concern, my lord.  17 THE REGISTRAR:  Are these marked 1121-20 and 1121-21?  18 THE COURT:  Yes.  19 MR. GRANT:  20 Q   Yes.  I will just provide three letters, and just  21 confirm if you received these letters, Mr. Marshall?  22 There's a letter of -- there's three letters, one of  23 March 10th, one of March 12th, and one of March 27th  24 of 1986 relating to the David Blackwater trapline.  Do  25 you recognize -- you received these letters relating  26 to this trapline, didn't you?  27 A   I can assume I did, yes.  28 MR. GRANT:  And would it be —  29 MR. MACKENZIE:  Excuse me, did you draw these from our files,  30 Mr. Grant?  31 MR. GRANT:  These copies are not -- these copies are not drawn  32 from your files.  These copies of them are not drawn  33 from your files, no.  34 MR. MACKENZIE:  They're the copies — my lord, I presume these  35 are the copies Mr. Grant's office received.  3 6 MR. GRANT:  37 Q   I think they're copies my office received, yes.  Yeah.  38 If my friend's concerned about the receipt date, I'm  39 not suggesting that you necessarily received the March  40 10th one on March 17th.  Okay.  But you received these  41 letters that were sent to you?  42 A   I would assume so, yes.  43 Q   Yes.  And is it correct to say that -- do you recall  44 that the resolution of the Blackwater -- the Charlie  45 Sampson succession was that that trapline was  46 transferred to David Blackwater Sr. and another  47 trapline of David Blackwater's was transferred to his 19360  R.W. Marshall (for Province)  Cross-exam by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  brother Walter?  A   That's correct.  That's my recollection of it, yes.  MR. GRANT:  Okay.  I'd ask that those letters just be marked as  the next in the series.  March 10th, 1986 letter be  Exhibit 1121-22, March 10 — 12th, 1986 letter be  marked as Exhibit 1121-23, and March 27th letter with  attachment be marked as Exhibit 1121-24.  THE COURT:  Yes.  All right.  (EXHIBIT 1121-22 - LETTER DATED MARCH 10, 1986 RE BLACKWATER  TRAPLINE)  (EXHIBIT 1121-23 - LETTER DATED MARCH 12, 1986 RE BLACKWATER  TRAPLINE)  (EXHIBIT 1121-24 - LETTER DATED MARCH 27, 1986 RE BLACKWATER  TRAPLINE)  MR.  MR.  MR.  MR.  MR.  MR.  MACKENZIE:  My lord, I understand that this letter, Exhibit  1121 tab 20, the letter of July 11, 1985, was marked  in Mr. Sterritt's examination --  GRANT:  That's right.  MACKENZIE:  — as Exhibit 634-B —  GRANT:  634-A.  MACKENZIE:  -- at that time, and there's a reference in the  fourth paragraph to the genealogy being enclosed with  the letter.  I understand at the time that this letter  was marked as an exhibit during Mr. Sterritt's  examination that there was a request for the  genealogy, the enclosure with the letter, and Mr. Rush  apparently agreed to provide it, and so I'd like Mr.  Grant also to provide it at this time.  We didn't get  it at that time or since then and perhaps Mr. Grant  has it now.  GRANT:  Q  A  Q  A  Q  A  Q  A  Q  Okay.  Maybe we'll go to that letter.  Do you  recall -- when you received the letter from Mr.  Sterritt, do you recall that you received a genealogy,  a chart showing --  Yes.  -- showing a relationship?  Yes, I recall that.  And that would be in the file of the ministry; is that  right?  Yes.  And it would be in the trapline file of David  Blackwater?  I would assume so, yes.  But you did receive it? 19361  R.W. Marshall (for Province)  Cross-exam by Mr. Grant  1  A  2  Q  3  4  5  A  6  Q  7  8  9  10  11  12  A  13  Q  14  15  16  17  18  A  19  20  Q  21  22  A  23  MR. GRANT  24  25  26  27  28  29  30  31  32  33  34  THE COURT  35  36  37  38  MR. GRANT  39  Q  40  41  42  43  A  44  45  Q  46  47  I believe so, yes.  On January 26, 1982, Les Cox gave evidence of a  hearing that was held at the Elk's hall in Smithers.  Were you present at that hearing?  No, I wasn't.  As a result of that hearing a transcript of his  evidence and of the evidence of the other witnesses  was prepared.  Have you ever -- this is relating to  the trapline of Johnny David and the trapline of Peter  Baggerman.  Do you recall ever seeing such a  transcript?  Not specifically, no.  Okay.  Are you aware of whether that transcript was  included in any of your files, that is, when I say  your files, the files of the ministry either at the  district level or at the regional level relating to  those traplines or general correspondence files?  I vaguely recall that it would be in one of our  specific trapline files.  And that would be the trapline file of Johnny David  or --  Or Peter Baggerman, yes.  :  My lord, I just want to say that I've looked in both  of those files, of the ones produced, and the -- this  does not appear to be in them, unless I am mistaken,  and if I am, my friends will be able to correct me I'm  sure.  But I have not located it in any of the  listings, although Miss Sigurdson did provide a copy  of it at the time of Johnny David's cross-examination  in Smithers, a copy to counsel.  It hasn't been marked  or anything like that, but it doesn't appear to be in  these files or listed.  Can -- I'd like to refer you --  :  Well, I'm not sure what this is about either, Mr.  Grant.  The witness says it's in the files, and Miss  Sigurdson had a copy, and you've got a copy.  What is  the problem?  Okay.  Maybe I'll proceed.  Do you know -- you don't know -- you understand it  would be in one of the specific trapline files?  That's your understanding?  I would assume that type of information would go in  one of those -- either of those two files.  Yes.  And when you did your certifications of the  files, you checked off the list, and you checked that  the documents on the list were in the file; is that 19362  R.W. Marshall (for Province)  Cross-exam by Mr. Grant  1 right?  2 A  Absolutely.  3 Q   If there was a document in the file that was not on  4 the list on your certification, what did you do?  5 A   I can't recall that happening -- happened.  6 Q   You don't.  Okay.  What I understand is your  7 certification confirms that the documents on the  8 list -- documents matching the description of the  9 documents on the list are in the file.  That's what it  10 says?  11 A   That's correct.  12 Q   Your certification doesn't expressly say this, but in  13 every case where you certified were all the documents  14 in the file listed?  15 A   Yes.  16 Q   Referring you to a memo to Barry Saunders from Rick  17 Marshall dated August 5th, 1983.  This is from one of  18 your correspondence files.  And you refer to the  19 problems that you're facing.  For example, the second  2 0 one:  21  22 "many names and addresses are wrong (i.e. some  23 of the trappers have been dead for 20-40 years)  24 and we have no record of licence transferrals."  25  26 And would you agree that at the time, in August 5th of  27 '83 -- this would have been shortly after you took  28 over this function; is that right?  29 A   That's correct.  30 Q   At that time the files were in some state of disarray,  31 that is, in the sense -- not that the files themselves  32 were, but in the sense that they were not updated?  33 A   That's correct.  34 Q   Okay.  You ask here -- you do state here at the  35 bottom:  36  37 "(Several Councils here want nothing to do with  38 us.)"  39  40 Are you referring there to band councils and tribal  41 councils?  42 A   I'm sorry, I haven't picked that up yet.  43 Q   The last sentence.  44 A   Okay.  Repeat your question.  45 Q   Are you referring there to band councils and tribal  46 councils?  47 A   Yes. 19363  R.W. Marshall (for Province)  Cross-exam by Mr. Grant  1 Q   Okay.  Do you recall which ones?  2 A   Not exactly, no.  3 MR. GRANT:  Could that be marked the next exhibit, my lord?  4 THE COURT:  Yes.  5 MR. GRANT:  25?  6 THE COURT:  25.  7  8 (EXHIBIT 1121-25 - LETTER DATED AUGUST 5, 1983 RE TRAPLINE  9 ADMINISTRATION)  10  11 MR. GRANT:  12 Q   Referring you to a letter of November 25th, 1985, to  13 Alvin Weget, and that's your signature, that's your  14 letter?  15 A   Yes, it is.  16 Q   And it's your attachment?  17 A   Yes, it is.  18 Q   Now, the third page is another letter, and I think it  19 was mistakenly attached to it.  We'll come to it in a  20 moment, okay.  So the second page, Granting Trapping  21 Privileges, that was your attachment to Mr. Weget?  22 A   I assume, yes.  23 Q   And Mr. Weget is a Gitksan person from Kispiox; is  24 that right?  25 A   I don't know for sure, no.  26 Q   Do you know if he's an Indian person?  2 7 A   I assume so, yes.  28 Q   Yes.  And that letter and attachment of November 25th,  29 1985, from Mr. Marshall to Mr. Weget, I'd ask it be  30 marked as the next exhibit.  And there is a -- if you  31 can -- my lord, the third page should be separated.  32 You recognize -- well, your signature is not legible,  33 but this came from your correspondence file.  Your  34 January 29th, 1985 letter to Buddy Morrison, that's a  35 letter that you wrote to him?  3 6 A   I assume so, yes.  37 Q   Okay.  And you're responding to a question that he has  38 relating to annual renewals every two years, and then  39 you say a most -- this is 1985.  You say:  40  41 "A most important consideration, however is  42 given to the perceived use of the trapline.  At  43 the present time, a trapper must provide a fur  44 value of $200 or 50 pelts from the trapline  45 each year.  Failure to do so (except with  46 permission from the Regional Manager of the  47 Fish and Wildlife Branch) will result in the 19364  R.W. Marshall (for Province)  Cross-exam by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  A  Q  A  Q  A  Q  A  Q  line reverting back to the Crown.  The line  will then be subject to a public auction."  Now, that was the policy at that time and is the  policy today; is that right?  That's correct.  Ever since 1982?  I assume so, yes.  Yes.  And that is -- you understand that's what I was  referring to as the use it or lose it policy.  And was  that the policy -- okay.  You refer to permission from  the regional manager to waive this requirement.  Has  such permission been granted between '83 and '89  relating to Gitksan or Wet'suwet'en traplines, to your  knowledge?  I know that exemptions have been made, but whether or  not they're --  Have there been many?  No.  MR.  THE  MR.  THE  THE  THE  THE  MR.  THE  Are we talking in the range of one to ten?  Like less  than ten, in other words, or --  I can't answer.  I don't see them so -- I'm aware of  some, but there may be a considerable number of other  ones, but I'm not aware of them.  Okay.  But are you aware of less than ten?  Yes.  I'd ask that the January 29th, '85 letter from Mr.  Marshall to Mr. Morrison be marked as exhibit --  27.  27.  Exhibit 1121-27.  Have there been a lot of requests for exemption?  WITNESS:  Not a lot, my lord.  REGISTRAR:  This is 26, and January the 29th is 27?  COURT:  2 6 is the two documents.  GRANT:  Yes, 26 is the letter to Mr. Weget.  27 is the  letter to Mr. Morrison.  REGISTRAR:  Okay.  A  Q  A  GRANT  COURT  GRANT  COURT  (EXHIBIT 1121-26 - LETTER DATED NOV. 25, 1985 RE TRAPLINE  POLICY)  (EXHIBIT 1121-27 - LETTER DATED JAN. 29, 1985 RE TRAPLINE  TRANSFERS)  MR. GRANT:  Q   There's a letter of September 18th, '85, to Mr. —  from yourself to Mr. Willis Morgan, and that's your  signature on the second page of that letter? 19365  R.W. Marshall (for Province)  Cross-exam by Mr. Grant  1  A  2  Q  3  4  5  6  7  8  A  9  Q  10  A  11  Q  12  A  13  Q  14  15  16  A  17  Q  18  19  20  A  21  Q  22  A  23  MR. GRANT  24  25  THE COURT  26  27  (EXHIBIT  28  29  30  MR. GRANT  31  Q  32  33  34  A  35  Q  36  37  A  38  Q  39  40  41  A  42  Q  43  44  45  46  A  47  Q  Yes, it is.  And I take it from this letter that this is a response  to Mr. Morgan's response to the standard form letter  sent out relating to trapline boundaries?  You recall  that in 1985 I believe Mr. Steventon indicated that  letters were sent out with photocopies of maps to all  these trappers?  That's correct.  You remember that?  Yes.  And you were involved in that process?  Yes.  You're knowledgeable about that.  So this -- is this  letter in response to Mr. Morgan -- or is this letter  in response to Mr. Morgan's reply to that letter?  I can't say specifically, no.  In any event, it's a response relating to a concern  expressed by Mr. Morgan relating to trapline  boundaries?  That's correct.  You agree with that?  Yes.  :  Okay.  Can that be marked as number 28, Exhibit  1121-28?  :  Yes.  .121-28 - LETTER DATED SEPT.  TRAPLINE BOUNDARIES)  1?  1985 RE MORGAN  You would agree with me that in some of the files that  you've certified there are memos from yourself to  others within the department, notes?  Yes.  And those are just convenient forms of communication  with other members of the department; is that right?  That's correct.  There's no obligation for you to send memos, for  example, to your superior with respect to each  trapline file at certain specific times?  There's no obligation, no.  No.  You would agree with me that there's  correspondence -- when somebody such as Mr. Morgan  writes in to you about a trapline, that's dropped into  the file, the trapline file?  Yes.  And that your responses, such as the last memo -- the 19366  R.W. Marshall (for Province)  Cross-exam by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  last letter, a copy would be put in the file?  A   That's correct.  Q   And would you agree with me that there's no obligation  on you to send written responses to persons like Mr.  Morgan in response to inquiries?  You do that as a  matter of a way of dealing with it?  You could equally  meet with him, for example?  A   That's correct.  MR. GRANT:  My lord, I notice the time.  I don't expect that I  will be much longer, but I would like if we could  break now and I could just review my notes and then --  THE COURT:  Yes.  All right.  MR. GRANT:  -- possibly be a short time this afternoon.  THE COURT:  What can we expect tomorrow, anything?  MR. WILLMS:  My lord, if I can speak to that, and I might speak  to it this afternoon as well.  Obviously my friend is  almost finished with this witness.  After he completes  the witness I'll be tendering some documents as  exhibits, and there may or may not be an argument  about that.  If we still have some time this  afternoon, we can deal with some of the exhibits for  identification that have been marked and have them --  if there is no dispute.  And then tomorrow, and I'll  confirm this over lunch, my colleague Mr. Goldie has  some documents which he wishes to submit to the court,  but the day would be taken up with the trial, but not  with a witness, my lord.  MR. GRANT:  Well, my lord, I don't know -- neither myself nor  Mr. Rush or any of the plaintiffs' counsel know what  Mr. Goldie's proposing to do, and we're not really  prepared to deal with it unless we're advised.  I just  don't know.  I had anticipated on Mr. Mackenzie's  estimate that we would have been until Monday with  these witnesses, and obviously we won't be, but we  understand Monday morning we're starting the cross-  examination of the other witnesses.  We need to know,  if there's going to be anything done tomorrow, what  it's about, unless Mr. Goldie's corresponded by fax  today and I wasn't there.  THE COURT:  Your friends are aware of your position.  All right.  Thank you.  Two o'clock.  THE REGISTRAR:  Order in court.  Court stands adjourned until  two o'clock.  (PROCEEDINGS ADJOURNED AT 11:25 P.M.) 19367  R.W. Marshall (for Province)  Cross-exam by Mr. Grant  1 I hereby certify the foregoing to be  2 a true and accurate transcript of the  3 proceedings herein to the best of my  4 skill and ability.  5  6  7  9 Leanna Smith  10 Official Reporter  11 United Reporting Service Ltd.  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 1936?  R.W. Marshall (for Province)  Exam by the Court  1 (PROCEEDINGS RESUMED AT 2:00 p.m.)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Mr. Grant.  5 MR. GRANT:  My lord, I have no more questions of this witness.  6 THE COURT:  Thank you.  Mr. Mackenzie?  7 MR. MACKENZIE:  No re-examination, my lord.  8  9 EXAMINATION BY THE COURT:  10 Q   All right, thank you.  11 One thing I wanted to ask you.  The system of  12 recording trapline licences by this number assignment  13 system is based upon a map with boundaries as we have  14 seen.  Does the system anticipate in any way or  15 preclude the possibility that a part of a trapline  16 might be transferred from one person to another?  17 A   Not at all.  18 Q   So they are fixed in their present size and shape so  19 far as the system is concerned forever?  2 0          A   No.  They can be amended or amalgamated.  21 Q   That could be done?  22 A   Yes.  23 Q   So if, and subject to the claims that the Indians have  24 in this case, if two traplines -- well, if a trapline  25 was owned by a non-Indian for example, to avoid all  26 the difficulties that might arise with the different  27 example, if that gentleman wanted to sell half of his  28 trapline to someone, he could do so; could he?  29 A  With our approval, that is correct.  30 Q   Yes.  And similarly, if two white men had traplines,  31 they could exchange them with your approval?  32 A   That's correct.  33 Q   Or amalgamation or something set up in that way?  34 A   Yes.  35 THE COURT:  Anything arising out of that?  36 MR. MACKENZIE:  No, my lord.  37 THE COURT:  All right.  Thank you very much.  You can be  38 excused.  39  40 (WITNESS ASIDE)  41  42 MR. WILLMS:  My lord, I, during the evidence of Mr. Steventon,  43 tendered three volumes which were marked Exhibit 1120  44 and it's tabs 1 through 504, it was marked for  45 identification.  46 THE COURT:  1 to 504.  47 MR. WILLMS:  I believe it was marked for identification. 19369  Discussion Re:  Exhibits  1 THE COURT:  I believe so.  2 MR. WILLMS:  1120.  3 THE COURT:  Yes, it was marked for identification.  4 MR. WILLMS:  And at this time, my lord, although there are as I  5 indicated at the outset four other gentlemen, Mr.  6 Hoyer, Mr. McGunigle, Mr. Stent and Mr. Guillon, who  7 have certificates in these three volumes, I have told  8 my friend that if he wants -- if there is something  9 that he wants to ask these men and wants us to bring  10 them down to court or deal with it in another way  11 related to these certificates, I am at his disposal  12 but I at this time, subject to that, tender these  13 three volumes of certificates as an exhibit proper,  14 not merely for identification.  15 THE COURT:  Thank you.  Mr. Grant or, I suppose, Mr. Frey first.  16 MR. FREY:  I have no submission, my lord.  17 THE COURT:  Thank you.  18 MR. GRANT:  Yes, my lord, I have indicated to my friend and wish  19 to, because he volunteered that Hoyer, Stent,  20 McGunigle or Guillon, any one or all of them who I  21 understand are conservation officers, that is, at a  22 different level or phase of this than these witnesses,  23 that I may wish and I want to further consider calling  24 one or more of them to be cross-examined but I can say  25 at this stage that I don't anticipate that I would  26 want to call all of them by any means and I haven't  27 determined which one or more, but I want to consider  28 that.  29 I do not object to Exhibit 1120 for Identification  30 being marked as an exhibit proper subject to two  31 points; that we do not -- that does not necessarily  32 connect Exhibit 1120 to the 20 volumes firstly and,  33 secondly, that the certificates of these other four  34 gentlemen are not evidence at this time until we  35 reserve, so in other words, to the extent that it  36 covers the Marshall and Steventon certificates, it can  37 be marked as an exhibit proper.  So with those  38 frailties, I have no objection.  39 THE COURT:  All right.  Well, they will be marked as exhibits  40 for that purpose and that is as Mr. Mackenzie has  41 just -- I am sorry, Mr. Grant has just described, but  42 I think I would have to add that, unless you make an  43 election to cross-examine the other certificators,  44 they will also become evidence in the absence of any  45 such election.  46 MR. GRANT:  That's what I would anticipate that we make — I'll  47 make an election on one or two of them, for example, 19370  Discussion Re:  Exhibits  1 and then at the conclusion of that, the other two --  2 we will take a position for the court and it can be  3 clarified that we have exercised our right to  4 cross-examine and we waive it regarding the other two,  5 for example.  6 THE COURT:  All right.  7  8 (EXHIBIT 1120 - SMITHERS REGIONAL TRAPLINE  9 CERTIFICATES VOL. 1, 2, 3)  10  11 MR. WILLMS:  I hope my friend can let me know sometime next week  12 because of the case and our hope to complete by the  13 end of October so that we can schedule the  14 individuals.  15 Now, my lord, the next item, and I don't intend at  16 this time to bring them all forward, but my friends  17 have seen them, they are the 21 volumes numbered 1  18 through 6, 6(a), and 7 through 20 from -- which are  19 extracts from the trapline files and, as I indicated  20 earlier, my lord, and there is an index in Exhibit  21 1120 where it says for each tab, when you go to the 20  22 volumes or the 21 volumes and go to the same tab, for  23 example, tab 151, you can go to tab 151 in Exhibit  24 1120 and find a certificate which lists a document  25 there and certifies that it's kept in the files in the  26 usual course of business of the Ministry.  Your  27 lordship has heard the evidence of Mr. Steventon about  28 the files, of Mr. Marshall about the files, and the  29 collation of the files and, in my submission, the  30 evidence of Mr. Steventon and Mr. Marshall taken  31 together with the certificates proves beyond a shadow  32 of a doubt the authenticity of these documents which  33 is all that we are seeking to tender them for as  34 exhibits right now.  These are authentic documents  35 from the trapline files and we acknowledge that my  36 friend can argue weight at any time with reference to  37 any other documents or any other evidence, but it is  38 our submission --  39 THE COURT:  I suppose he could also argue that on the basis of  40 other evidence that they are not what they --  41 MR. WILLMS:  And that they are not —  42 THE COURT:  — what they appear to be.  43 MR. WILLMS:  Which would be in effect no weight and I  44 acknowledge that.  All that I am saying right now, my  45 lord, is that we have satisfied in my submission the  46 evidentiary requirements to have those documents  47 marked as an exhibit proper subject to whatever 19371  Discussion Re:  Exhibits  1 objections my friend may have.  I think he may have  2 some because they wouldn't admit the authenticity of  3 the documents but I don't know what that objection is.  4 THE COURT:  What is the exhibit number for these 21 volumes now?  5 MR. WILLMS:  The exhibit number that was reserved, my lord, is  6 995-41 (a), that's the general number, and then it  7 would once again be tabs 1 through 504, and so I am  8 submitting these 21 volumes as 995- 41(a) tabs 1  9 through 504.  10 THE COURT:  They were produced and marked in the  11 cross-examination of Mr. Brody.  12 MR. WILLMS:  They were produced during the cross-examination of  13 Mr. Brody.  The index which is 995-41 was marked for  14 identification during his cross and the number was  15 reserved for the volumes but the volumes have not been  16 marked for identification or at all yet but I am  17 tendering them all as exhibits at this time.  18 THE COURT:  All right.  Mr. Frey?  19 MR. FREY:  Well, I will support Mr. Willms' submission.  2 0 THE COURT:  Thank you.  Mr. Grant.  21 MR. GRANT:  I don't know if I should start with the major issue  22 or the minor one.  Firstly, my lord, as you had  23 indicated that these documents should be dealt with at  24 the conclusion of this body of evidence and it is --  25 it was not an abstract point that I was raising of  26 Exhibit 1120 in the cross-examination of one of the  27 other witnesses at a different level of the  28 certification and I think I want to consider -- I  29 want -- I think it is important to have that  30 cross-examination prior to the ruling with respect to  31 this as there may be further evidence relating to the  32 strengths and weaknesses of the documents.  That's the  33 first point.  34 The second point is that I am not certain  35 whether -- on what basis my friend is tendering them,  36 whether he is tendering them as government records or  37 as business records, there is rules regarding both, or  38 as public records.  And that, in order for me to deal  39 with the position, I need to know what position he is  40 taking now regarding the grounds upon which he is  41 tendering them, because I -- I must say this right  42 now, my lord, there is no doubt in my mind, and it has  43 been demonstrated, that several of the documents in  44 these 20 volumes are admissible.  There is equally no  45 doubt in my mind that several of them are not  46 admissible and I don't want to deal with them  47 individually but I'd like to deal with them as a 19372  Discussion Re:  Exhibits  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR.  THE  MR.  category, as a ruling on a grouping.  THE COURT:  All your friend is saying is that they are documents  that are in the files of the particular government  agency in question.  The weight to be given to them  beyond that is a matter of argument.  But even if  there is a document that, in the normal course of  events would be inadmissible, surely it is admissible  at least for the purposes of proving it is part of a  collection even though it might not mean anything.  Isn't that so?  I don't think your friend can come  along and say, well, we are -- in a matter of this  kind, you could in lots of other things, you can pick  and choose.  In a matter of this kind, your friend has  to practically put them all in or go through a lot of  explanation, a lot of trouble explaining why they are  not all being put in and the easy way to do it is to  put them all in.  WILLMS:  Well, I should say, my lord, it is not all.  There  are -- what is for sure in are trapline registrations  but —  COURT:  Within the claim area.  WILLMS:  Within the claim area, but where you get for a  non-native trapper, for example, and a bunch of other  documents on that file other than the -- as I  understand it, I have reviewed a number of them, other  than a registration and any formal licensing  documents, you won't find the other documents that --  for example, my friend, Mr. Grant, had caused to be  put in the file by writing about a trapline.  THE COURT:  Yes, I understand that.  Well, I don't think I  should preclude you from this cross-examination, Mr.  Grant, but when you raise it as an objection to this,  it seems to me that I should then indicate my general  approval of Mr. Willms' suggestion that you should  make it a fairly early election in this regard because  we are coming to the end of his case.  MR. GRANT:  I definitely want to -- I mean, I'm thinking this  out imminently and I have no problem about that.  COURT:  All right.  Your friend suggested next week.  GRANT:  Did I advise him next week?  That's not a problem.  That's not a problem.  It is completely in keeping  with my thoughts.  The point is, my lord, all I want  to leave you with on this is that the fact that a  document is in a collection, what does that do or aid  us in this case, because we have 21 volumes, my lord.  I have had them reviewed to a certain degree for  certain aspects.  I have now heard the  THE  MR. 19373  Discussion Re:  Exhibits  1 cross-examination of this witness, and I want to  2 consider how these witnesses have explained them, what  3 they had added to them.  I submit the fact that there  4 is a collection of papers doesn't offence things one  5 iota.  For my friend to say they are authentic, that  6 is, that these come from a file, what does -- and they  7 come from of course his files, he hasn't yet said  8 whether -- like there are rules for admissibility of  9 documents.  Some of these would come under some of  10 those rules but the fact that they happen to be in a  11 file doesn't advance us one iota and it's a very  12 onerous burden on us to review them all in terms of  13 that context without even knowing -- well, my friend  14 is saying they are authentic of something, that is,  15 they are authentic but they happen to be in a file  16 folder and I say that that's a concern.  17 THE COURT:  They are authentic in a file folder in a government  18 agency but I am with you.  I think it might be  19 useful -- well, it will be useful for your friend to  20 specify with particularity the various heads of  21 admissibilities upon which he relies.  22 MR. GRANT:  Yes.  I'd like that so that I would be able to  23 prepare.  I am prepared to deal with it on whatever  24 heads he tells me or will prepare myself to deal with  25 it but, up to this point, since the date that these  26 documents were first tendered, we haven't had any  27 indication of what heads of admissibility and we have  28 this certification --  2 9    THE COURT:  Are you able to do that now, Mr. Willms?  30 MR. WILLMS:  Yes, I can, my lord.  They are admissible under any  31 of a number of heads.  They are admissible under the  32 business records section; they are admissible under  33 the public documents section; they are also admissible  34 under the common law, and I can refer my friend to  35 Wigmore, volume 7, page 771 to 772 where the principle  36 is stated as clearly as can be stated:  37  38 "When in a government office permanent records are  39 kept under the custody of an officer appointed to  40 that duty, there is commonly little danger in  41 inferring that records found there are genuine.  42 It would be difficult as well as criminal to  43 substitute or to insert false records.  Moreover,  44 the usual motive authenticating such documents as  45 by proving the clerk's or officer's handwriting  46 would be both highly inconvenient on account of  47 its repeated necessity and often impossible on 19374  Discussion Re:  Exhibits  1 account of the change of officials as well as the  2 antiquity of many portions of the records."  3  4 My lord, there are numbers of cases on the common law,  5 business records, public documents, and if I can state  6 the rule simply for my friend's benefit, if it comes  7 from a public record where someone has a duty to keep  8 the record, you don't even need to call the person.  9 You can have it certified as a copy as long as you can  10 show that he had a duty to keep it, and that's why we  11 call the witnesses, so I hope that helps my friend in  12 formulating his objection whenever he wants to make  13 it.  14 THE COURT:  All right.  Well, there you are, Mr. Grant, so you  15 make your decision about when you want to  16 cross-examine.  As soon as you can get that over with,  17 we'll have an argument and you know now what you will  18 be relying upon and urging, and we will get on with  19 it.  I think I should say I am not attempting -- not  20 prejudging any of these issues but I propose to  21 continue or expect, rather, to continue policy of  22 erring on the side of admissible rather than otherwise  23 at this stage.  It may be that there is not much  24 evidentiary value in a lot of this, but I would rather  25 err on the side of having it there to be considered  26 rather that it not being there at all.  The error  27 would be more egregious and have much more serious  28 consequences but I will be glad to hear what counsel  29 have to say.  If there is a problem about  30 admissibility I am sure you will tell me all about it.  31 MR. GRANT:  I just want to be clear, not from your lordship but  32 what my friend said.  I understand he is not tendering  33 these, when he focuses on authenticity, he is not  34 tendering these to prove the truth of the facts stated  35 in all of these documents.  That's what I understand  36 and I don't want to be misunderstood.  37 MR. WILLMS:  My lord, if I wasn't tendering them — I made this  38 argument several times during my friend's evidence, I  39 said if I weren't tendering something for the truth,  40 why bother.  It is not much help to the court, and  41 they are being tendered for the facts stated in them  42 but that's all a matter of weight, my lord.  43 And now, my lord, one thing my friend did concede  44 that there would be some documents in there that would  45 be admissible and in fact my friend did mark documents  46 in his cross-examination out of the files on the basis  47 that they were out of the files.  And since they will 19375  Discussion Re:  Exhibits  1 be referred to from time to time, I would like to  2 formally mark them for identification at this time and  3 then at a later point then we can just remove the  4 identification designation.  5 THE COURT:  It hasn't been done yet?  6 MR. WILLMS:  It hasn't been done yet, but I'd like to do at  7 least that.  And it doesn't need to be done in court  8 time, my lord, but if your lordship would accede to  9 that request we could do that outside of court time  10 and formally mark them for identification.  11 THE COURT:  Mr. Grant?  12 MR. GRANT:  Well, of course I don't think anybody has objected  13 to marking anything for identification, I am not going  14 to start that now.  The only point I ask is that my  15 friend, before he tenders them, is that if he -- as I  16 raised, I think they have been referred to by my  17 friend as the Brody trapline documents.  Of course  18 none of these documents -- the index was put to Mr.  19 Brody, none of the documents were, and that this  20 grouping should be labelled as the Smithers trapline  21 files, that's what they are, and my friend, if he  22 could arrange to label the bindings accordingly.  23 MR. WILLMS:  Skeena region trapline files would probably be a  24 more appropriate --  25 MR. GRANT:  Yes, certainly.  26 THE COURT:  All right.  They may be marked for identification.  27 MR. WILLMS:  Thank you.  28 THE COURT:  How do you propose to do it?  29 MR. WILLMS:  Well, my lord, I would like, as we did with Exhibit  30 1120, we had the three volumes as one exhibit but it  31 was Exhibit 1120-1 through 504, I would propose that  32 this be Exhibit 995-41 (a) tabs 1 through 504.  33 THE COURT:  All right.  Thank you.  34  35 (EXHIBIT 995-41(a) FOR IDENTIFICATION TABS 1 - 504 -  36 SKEENA REGION TRAPLINE FILES)  37  38 MR. WILLMS:  Now, the next document, my lord, is the -- Exhibit  39 24-A has been marked as an exhibit at this trial but  40 at the time it was marked, it was marked for a limited  41 purpose, I think there was a reference and I can't  42 recall who the witness was but one of the witnesses  43 was referred to the map and it was marked for that  44 purpose, and it is my submission at this time that  45 having heard the evidence of Mr. Marshall and Mr.  46 Steventon and having read the affidavit of Dr. Bandy,  47 that all that Exhibit 24-A is is a copy of the 19376  Discussion Re:  Exhibits  1 documents kept, and there is no question about this  2 under -- no matter what rule of admissibility or rule  3 of evidence it's tendered under, these are the  4 documents that are used in the day-to-day  5 administration of the traplines and on the date they  6 were sent to Dr. Bandy they were the documents that  7 were used in the day-to-day administration of the  8 traplines.  So in my submission the fact that they are  9 a reduced copy of them taped together put on a big map  10 doesn't change the fact that in effect we have got a  11 reproduction of a business record, government record,  12 public document here and it's admissible now for all  13 purposes, and I tender it as such.  14 THE COURT:  When you say limited admissible for all purposes but  15 subject to the overriding question of weight of  16 evidence?  17 MR. WILLMS:  Of course, my lord.  18 THE COURT:  Any objections, Mr. Grant?  19 MR. GRANT:  No.  I don't object to it being marked — well, it  20 is marked as an exhibit.  I don't object to it being  21 marked.  Of course it is subject to all of the  22 frailties that came across through the  23 cross-examination, et cetera.  24 THE COURT:  Yes, all right.  25 MR. GRANT:  And of course whatever other frailties come out in  26 further cross-examination.  27 THE COURT:  All right.  Its status will be changed to that  28 extent.  29  30 (EXHIBIT 24-A - LARGE MAP OF TRAPLINE AREAS)  31  32 MR. WILLMS:  All right.  Now, my lord, extracts from 24-A which  33 were called 24-A1 for Identification and 24-A2 for  34 Identification and they were both marked on April 22,  35 1988, I would submit that both Al and A2 can now  36 become exhibits proper in accordance with A.  They are  37 just copies of A, portions of A.  38 THE COURT:  You would suggest they be 2 4-A1 and 24-A2?  39 MR. WILLMS:  Yes, my lord.  40 MR. GRANT:  I didn't anticipate this.  I can't comment.  If my  41 friend has those exhibits here, that's fine.  I don't  42 have my copies to determine that so I can't say  43 whether I agree or not.  44 THE REGISTRAR:  What date were they marked, April?  45 MS. SIGURDSON:  April 22, '88.  46 MR. GRANT:  My friend Ms. Sigurdson has indicated there were  47 some additional lettering put on them but I have -- on 19377  Discussion Re:  Exhibits  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR.  MR. GRANT  THE COURT  MR. GRANT  the basis of Mr. Willms' representation that these  are, except for the lettering, that these are copies  of 24-A, I have absolutely no problem with that.  THE COURT:  All right.  They will be so marked 2 4-A1 and 24-A2.  (EXHIBIT 2 4-A1 - MAP MARKED TERRITORIES A, B AND C)  (EXHIBIT 24-A2 - MAP MARKED TERRITORIES D, E, F AND G)  WILLMS:  The last document, my lord, was Exhibit 24-B for  Identification, it is the binder entitled Map 2:  Registered Traplines.  I referred and related Dr.  Bandy's affidavit to portions of this document.  I don't object to it being marked, subject to all of  the frailties of the cross-examination, et cetera.  Yes, 24-B.  Save my friend some time.  (EXHIBIT 24-B - BINDER MAP 2:  REGISTERED TRAPLINES)  MR. WILLMS:  Now, my lord, before I spoke briefly to my friend  about the documents that he -- he wrote a letter to us  and had certain documents that have been marked  exhibits for identification and we have advised him of  which ones we object to being marked.  Before I get  into that, I do -- my friend asked what would Mr.  Goldie be doing tomorrow and I have advised him that  Attorney General of British Columbia document number  58, which is entitled Papers Relative to the Affairs  of British Columbia in four parts as presented to  Parliament, and the dates are 1859, 1860 and 1862.  It  is a binder, I think it is about two inches thick, my  lord.  Those are the documents that Mr. Goldie will be  referring to tomorrow in evidence.  Some of the  documents -- extracts from that are already in the  evidence through Dr. Lane and perhaps as well through  Mr. Morrison, but my friend wanted notice of what we  were going to deal with tomorrow and it's just that  simple document that's been disclosed for ages.  And  so I'd like to turn to the exhibits for  identification.  THE COURT:  I am sorry, Mr. Grant, go ahead.  MR. GRANT:  Well, I will raise something if we are getting into  this.  I feel that there is this very dark shadow  coming up tomorrow that I don't anticipate.  My friend  has indicated -- I of course only found out about this  just before 2:00 what documents -- I haven't looked at 1937?  Discussion Re:  Exhibits  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 document.  It is a two-inch binder but my friend  assures me that it will take the entire day tomorrow  and that suggests to me that there is something  substantially more than what I anticipate.  Filing a  document, a two-inch binder as an exhibit, I don't see  taking all day unless there is some argument.  Now,  both counsel, and I confirmed at noon hour, Mr. Rush  is not available to be here tomorrow to deal with this  matter.  We have had no notice of this and we are not  going to be in a position to respond.  If Mr. Goldie  wishes to make his submission tomorrow, that's fine,  but we will not be in a position to respond.  I  couldn't even tell him what the document was because  it was after lunch that they advised me what it was,  and I don't -- I am not at all prepared.  This related  to evidence, as I understand it, of Barbara Lane,  extracts were put there, possibly Mr. Morrison, and  these are witnesses that Mr. --  THE COURT:  Well, Mr. Grant, if you are taken by surprise when  you hear what your friend has to say tomorrow, I would  doubt if I would force you on.  MR. GRANT:  I just want —  THE COURT:  Your friends know your position and I think we  should see what the problem is.  I have no problem with Mr. Goldie making whatever  submission he wishes.  I just wanted you to be advised  as early as possible and I am not in a position  because we didn't have advance notice.  While we are at it, I think I should ask counsel if  we can convene at 10:30 tomorrow instead of ten. I  found out that I have a tail end of a Sentence Appeal  in the Court of Appeal and there is the swearing in of  County Court and things like that all resting between  9:15 and 10:00 tomorrow, and I think we will run over  a bit so can we make it 10:30 tomorrow?  MR. GRANT:  I had anticipated that you might have had an entire  day in the Court of Appeal tomorrow.  THE COURT:  I had anticipated that too.  MR. GRANT:  That was my view of what tomorrow would look like  after today.  Maybe I could deal, as they are our  exhibits which were the exhibits for identification  which I would like to have marked, and I will deal  with the ones that my friends do not object to first  and then madam registrar can just record those and  will know.  We are proposed, my lord, I can give you  the description of these exhibits when I go through,  that Exhibit 2, the Gyolugyet binder, be marked as an  MR. GRANT  THE COURT 19379  Discussion Re:  Exhibits  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR.  THE  MR.  THE  MR.  THE  MR.  THE  MR.  COURT:  GRANT:  COURT  GRANT  COURT  GRANT  COURT  GRANT  THE  MR.  exhibit proper.  It is volume 3 page 180.  That's  where it's referred to.  And I am now dealing with  ones that my friends do not object to from what I  understand.  WILLMS:  That's correct, my lord, and I do -- and I don't  know when the appropriate time is, I have some  comments but I don't -- similar to my friend's  comments, and it's appropriate that the comment be on  the record at the time the objection is withdrawn but  they are not lengthy comments, and I can probably deal  with them --  Let Mr. Grant list them all and you can comment.  I'll list them all and then my friend can comment.  Exhibit number 3, which is the feast book of Ellen  Johnson, volume 6 page 339, and I state that that was  proven by Mary McKenzie.  Just a moment, please.  Volume 6.  Page 339.  I am sorry, what was the transcript reference for  Exhibit 2?  Volume 3 page 18 0.  Thank you.  That was in the early stages but it would be the  binder, my lord, and it was marked as Exhibit 2, was  at the identification sequence, and it wasn't taken  off of it.  A listing of geographic locations, Exhibit  6, this would be Gitksan words, volume 7, page 414.  That was Exhibit 6.  Now, in Exhibit 2-1 tab 1, there is a listing of  names for spelling purposes, and my friend I think  wanted to put that restraint on that and I have no  problem with that.  Exhibit 29A, a listing of the  house members of the House of Hanamuukw,  H-a-n-a-m-u-u-k-w, volume 16 page 1029.  Exhibit 62-9,  a photograph of the totem-pole of Maxlaxlegh,  M-a-x-1-a-x-l-e-g-h, Johnny David, volume 38 page  2467, was later identified.  Exhibit 319, a petition  of the Hagwilget chiefs, volume 67 page 4173.  Now, my  listing indicates it is 1955, my memory suggests it  was 1945, but in any event it is an historical  document.  It is 1955.  Exhibit 321A, a map of  Rossvale Lake, volume 69, page 4258.  This is a  document of the Provincial Defendant.  Exhibit 446-8,  a letter from David Wells to Matthias Wesley.  It is  in the Stanley Williams commission evidence, my lord,  volume 3, and I am sorry I don't have the page number,  but it would be Exhibit 8 in his commission evidence.  COURT:  GRANT: 19380  Discussion Re:  Exhibits  1 THE COURT:  Thank you.  2 MR. GRANT:  Exhibit 591, the genealogy of the House of Wiigaak,  3 W-i-i-g-a-a-k.  That was subsequently proven by  4 Heather Harris and I do not have a volume or page  5 number for that when it was tendered for I.D. but it  6 was in -- I know why actually.  It was in the  7 cross-examination of Neil B. Sterritt, so that's why I  8 don't have the page reference.  Exhibit 614, this is a  9 document of the Federal Crown, it is an August 1973  10 policy paper Re:  Land Claims, volume 113 page 7071.  11 Exhibit 645, it is a map of Marvin George at volume  12 219 page 15966.  13 THE COURT:  I am sorry, what was the page again?  14 MR. GRANT:  15966.  This document, my lord, was actually marked  15 as an exhibit proper when you look at that reference  16 but on the court exhibit list it is listed as an  17 exhibit for I.D. so it should be -- I think it always  18 was an exhibit proper.  Exhibit 653, topographical  19 sheets, volume 118 page 7328, identified by Mr.  20 Sterritt.  What's the page again?  7328.  Sorry, my lord, I have just --  It's just that you are not progressing numerically  21 THE COURT  22 MR. GRANT  2 3    THE COURT  24 as I thought you were.  2 5 MR. GRANT  2 6 THE COURT  2 7    MR. GRANT  In terms of pages?  Yes.  I am progressing numerically in terms of exhibit  28 numbers, you see, but sometimes they are identified  29 much later in many later volumes.  30 THE COURT:  Yes, all right.  31 MR. GRANT:  I am going to skip over ones that are objected to  32 right now.  Exhibit 1011, volume 218 page 18844.  33 This -- this is actually an exhibit proper that was --  34 but it is listed as an exhibit for I.D.  When you look  35 at the transcript reference it is clear that it was  36 marked as an exhibit proper, or intended to be.  I am  37 sorry, my lord, my listing suggests it is Exhibit  38 1011, I don't have what it is.  It is Exhibit 1011.  39 THE REGISTRAR:  It was made an exhibit proper on the 20th of  4 0 April.  41 MR. GRANT:  I am sorry, thank you.  It was made an exhibit  42 proper.  It is a mylar map of territorial boundaries  43 and it was made an exhibit proper madam registrar  44 indicates.  I must have had an earlier version that  45 didn't have that on it when I made the comparison.  46 Exhibit 1016, volume 218 page 15839, a sketch map  47 prepared by Marvin George, I think it's based on Dr. 19381  Discussion Re:  Exhibits  1 Galois' evidence.  2 THE REGISTRAR:  It is an exhibit proper.  3 THE COURT:  It is.  4 THE REGISTRAR:  There is a notation here May 19, '89, it was  5 made an exhibit proper.  6 MR. GRANT:  Thank you.  7 MR. ADAMS:  I was present for Dr. Galois' evidence, it was put  8 in for I.D. through Mr. George and then identified and  9 put in through Dr. Galois.  10 THE COURT:  It is an exhibit now.  11 MR. GRANT:  I am sorry for my notation.  I think I am following  12 Mr. Willms' practise of saying things twice.  I guess  13 I wasn't sure that it was in.  14 THE COURT:  I thought he was following you, Mr. Grant.  15 MR. GRANT:  No.  He — at the break he took credit for saying  16 everything twice.  He thought that was a good policy.  17 Exhibit 1043, which are the Kisgaast Adaawk -- I  18 should say Kisgaast, K-i-s-g-a-a-s-t, that would be  19 the Fireweek Clan adaawk, those are the Baynen  20 versions and I will just give you the reference, I  21 didn't have that far down on my list.  That would be  22 volume 232 and I don't have a page reference.  23 Now, those are the documents which I understand  24 from -- which I am tendering as exhibits proper and my  25 friends do not object to them being marked as exhibits  26 proper.  Maybe I can refer you to the others at this  27 point, my lord.  28 THE COURT:  Well, just let me confirm that that's so.  Is it,  2 9 Mr. Willms?  30 MR. WILLMS:  Yes, it is, and as I said, I have some brief  31 comments on a number of them but that is so.  32 THE COURT:  Mr. Frey?  33 MR. FREY:  Yes, my lord.  34 THE COURT:  All right, thank you.  35 MR. GRANT:  I would also be seeking to tender Exhibit 578, it's  36 at volume 108 page 6829, the Housing Report of  37 Gitwangak Band identified by Glen Williams.  That's  38 objected to by the Provincial Defendant.  Exhibit 974,  39 which are fish management interviews, volume 208 page  40 13943, and these are interviews which were part of the  41 foundations for the opinions of Mr. Morrell.  They are  42 of a similar nature you may recall to land claims  43 interviews that other witnesses referred to, Dr. Daly  44 and others that were marked.  These ones were not  45 marked, and that's objected to by the Federal Crown.  46 Exhibit 982, that's volume 209 page 14045, it is an  47 extract from the Morrell report, pages 110 to 137. 19382  Discussion Re:  Exhibits  1  THE  COURT:  2  MR.  GRANT:  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  THE  COURT:  28  MR.  GRANT:  29  30  31  32  33  34  35  36  THE  COURT:  37  38  MR.  GRANT:  39  40  41  42  43  44  45  THE  COURT:  46  47  MR.  WILLMS  I am sorry, what pages?  Pages 110 to 137, and that extract, you may recall  most of the Morrell report was all tendered but  certain parts were, my lord.  This was left as an  exhibit for I.D.  That was tendered as an explanation  of a pie chart prepared by Mr. Morrell and the basis  for the pie chart which that pie chart was marked as  an exhibit, and I think that went to -- well -- and  that's objected to by both the Federal and Provincial  Defendant.  Exhibit 1026-31, Lord Shelburne and the  Proclamation of 1763.  Just a moment, my lord, I will  give you the volume and page.  That's volume 222 and  unfortunately I can't give you a page because the  index doesn't indicate a page.  And exhibit 1026-35,  that's at volume 222 page 16209.  Those two documents  are objected to by the Provincial Defendant.  Now, my lord, you may wish to -- with respect to  the -- in terms of how to deal with these documents  that are objected to, my friends just indicated this  to me, they gave me the list of what they had objected  to after the break or after lunch hour, and in terms  of Exhibit 974 and 982, Mr. Frey suggested he would  like to deal with that tomorrow morning because he  indicates that Mr. Macaulay would like to speak to  those two and I have no objection to that.  I think  that's appropriate.  All right.  And it may be that your lordship would like to have  the references for the other three exhibits objected  to by the Provincial Attorney General if you wish to  deal with those later today or tomorrow morning,  either way.  I certainly will want to take a break to  pull -- I haven't pulled those particular volumes to  speak to them, I would like to do that, but I can deal  with those this afternoon or tomorrow morning.  Is that the list of those to which objection is  taken?  I have just given you all of the ones to which  objection is taken.  And my friends, the Provincial  Defendant, have proposed tendering Exhibits 807  through to 810 and 816 -- my friends want to deal with  mine first.  I have no problem either way, my lord,  except I can tell you which they are because we take  no objection to them and they can be marked now.  Mr. Willms, what do you want to tell me about this  list that started at number 2 and went up to 1043?  :  Starting with Exhibit 3, and it's only some of 19383  Discussion Re:  Exhibits  1 them.  Exhibit 3, when the evidence is referred to on  2 that feast book and the timing of the notes, the  3 frailties respecting it as my friend Mr. Grant  4 referred to earlier, are evident and I just wanted to  5 make that note.  For both Exhibit 6 and 29A, both of  6 these documents were relating Indian names to -- the  7 first one was Indian names and English names for  8 geographic features for Gyolugyet.  They are not  9 admitted for the purposes that they are the named  10 features because there was other evidence about the  11 named features in Gyolugyet by other witnesses but  12 that is the translation of the names.  13 THE COURT:  Some of the evidence.  14 MR. WILLMS:  It is some evidence but it is also --  15 THE COURT:  Not conclusive.  16 MR. WILLMS:  Not conclusive, but it is particular to the names.  17 The same with the list of the members of the House of  18 Hanamuukw which is Exhibit 29A; that is, it shows the  19 names and the spelling of the names but there is other  20 evidence about that.  On the maps of the cabin sites,  21 which is Exhibit 321A, when the evidence is reviewed,  22 it will be seen that not all of the exhibit was  23 identified, parts of it, and it's a little confusing  24 at parts, but that wouldn't keep the whole document  25 out.  26 Exhibit 653, which is the Land Use Reference Data  27 Sheet, this is a sheet that Mr. Sterritt recorded  28 names and features on and, as a limited purpose for  29 showing Mr. Sterritt's methodology, it is admissible  30 but we maintain that it's not admissible to show that  31 what he wrote down on the document was true because we  32 have an overriding hearsay objection to all of the  33 information that was gathered by the four people who  34 submitted information to Marvin George.  35 Now, my friend, 974 and 982, he said would be  36 dealt with tomorrow.  Oh, the last one is exhibit  37 1043.  The binder of adaawks, my lord, that is marked  38 as Exhibit 1043 has really got two parts.  It's got  39 the adaawk in it to which there is no objection, and  40 it has Ms. Marsden's summary of the adaawk at the  41 beginning.  To the extent that the summary is not  42 submitted as Ms. Marsden's opinion but merely as an  43 attempt to factually capsulate what's in the adaawk,  44 there is no objection but, when you read some of them,  45 they are opinion and not factual capsulations.  So  46 with that reservation with respect to Ms. Marsden's,  47 she calls them summaries, in some cases they do 19384  Discussion Re:  Exhibits  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  MR.  THE  MR.  THE COURT  MR.  THE COURT  summarize, in other cases they go beyond summary, and  to that extent --  COURT:  You are saying I should give no weight to those  parts which are not factual --  WILLMS:  No weight to those parts --  COURT:  -- or a summary of factual matters but not including  the opinions that she --  WILLMS:  Yes, because her opinions were separate.  These  were tendered on the basis that they weren't opinions.  That's how my friend tendered them and got under the  60 day rule.  All right. I will have to consider that as a matter  of separating admissible from inadmissible portions of  the same document.  WILLMS:  And in respect of the other documents, I am  prepared to deal with them whenever my friend is. The  other -- the three that do not need Mr. Macaulay or as  I understand do not require Mr. Macaulay.  All right.  Well, those exhibits that Mr. Grant  describes, starting with Exhibit 2 and ending with  Exhibit 1043 and which were marked for identification,  may now be marked, subject to the comments that  counsel have made and to the general question of  weight and all the other exceptions.  Now, what do you  want to do, Mr. Grant?  Are you suggesting we adjourn  while you dig up the references to these three that  you want to deal with?  (EXHIBIT 2 - BLUE BINDER)  (EXHIBIT 3 - BOUND FEAST BOOK OF ELLEN JOHNSON  BURIAL'S FEAST  (EXHIBIT 6 - LIST OF GEOGRAPHIC LOCATIONS AND  FEATURES)  (EXHIBIT 29A - LIST OF NAMES)  (EXHIBIT 62-9 - PHOTOGRAPH)  (EXHIBIT 319 - PETITION OF THE HAGWILGET BAND DATED  APRIL 15, 1955)  (EXHIBIT 321A - MISCELLANEOUS REPORT)  (EXHIBIT 446-8 - LETTER FROM D. WELLS TO M. WESLEY) 19385  Discussion Re:  Exhibits  1 (EXHIBIT 591 - GENEALOGY OF WILGAAK)  2  3 (EXHIBIT 614 - DOCUMENT ENTITLED STATEMENT OF THE  4 FEDERAL GOVERNMENT ON ABORIGINAL CLAIMS)  5  6 (EXHIBIT 645 - MAP BY MARVIN GEORGE)  7  8 (EXHIBIT 653 - TAB 59, LAND USE REFERENCE DATA SHEET)  9  10 (EXHIBIT 1043 - BINDER - ADAAWK ANCIENT HISTORY OF  11 GISKAAST)  12  13 MR. WILLMS:  At Exhibit 2 tab 9, there is a map which is the  14 same map as Exhibit 7 which is an exhibit for  15 identification, and because both exhibits were  16 referred to by witnesses, it's our submission that  17 Exhibit 7 should also be an exhibit proper as well.  18 It just goes with the other one.  They weren't -- they  19 were both referred to.  20 THE COURT:  Any problem with that, Mr. Grant?  21 MR. GRANT:  No.  I haven't — I don't have a note regarding  22 Exhibit 7 but, if my friend assures me that Exhibit 7  23 is the same as Exhibit 2-9, then we should be able to  24 mark it as an exhibit proper.  25 THE COURT:  It is the same as Exhibit 2-9?  26 MR. GRANT:  Maybe I should look at this because it may be that  27 that map was excised from Exhibit 2 and I don't know.  28 That was some time ago.  The only point I want to  29 make, my lord, is that of course my friend has said a  30 number of things about some of these exhibits and to  31 the extent, all I say is the transcripts at the time  32 those -- the discussion at the time in the transcript  33 is what's relevant, not what my friend is saying now,  34 and I understand he is just reinforcing or repeating  35 what he said then.  I haven't got each of those  36 transcript references but I --  37 THE COURT:  I have got both the transcript and I have got his  38 comments and I will do the best I can with them.  39 MR. GRANT:  He isn't suggesting further frailties and I will say  40 regarding Exhibit 1043, to the extent that Ms. Marsden  41 was qualified to give opinions relating to adaawk, of  42 course whether it is in those or in her opinion report  43 I would say of course your lordship can consider that  44 to the extent that she was qualified in that area but  45 that can be argued at a later stage.  46 THE COURT:  I took it, and perhaps incorrectly, that your friend  47 was saying we didn't have any notice of it and it 19386  Discussion Re:  Exhibits  1 wasn't admissible as an opinion.  2 MR. WILLMS:  That's how my friend, moving rather adeptly at the  3 time, got it into evidence by saying it's not opinion.  4 MR. GRANT:  That's fine.  Again just based on what the  5 discussion was at the time the document was tendered  6 and not the discussion today.  7 THE COURT:  Yes, all right.  Now, what do you want to do?  You  8 have some more that you want to tender that were  9 marked for identification, Mr. Willms?  10 MR. WILLMS:  We do, my lord, and my friend -- my lord, I don't  11 have the references for when these were marked but I  12 can get them if it's necessary but here is the list  13 and my friend can correct me if I state an exhibit  14 that he hasn't withdrawn an objection to.  The first  15 one was Exhibit 805 for Identification, and it is a  16 Neil Sterritt field note re:  Boulder Creek.  My  17 friend has asked that the second page of the field  18 note also be marked with the -- I will give madam  19 registrar the whole thing, my lord, but there is an  20 added page to it and it will become Exhibit 805  21 proper, and it is a Neil Sterritt field note re:  22 Boulder Creek, May 24, 1986.  23 THE COURT:  Yes, so the larger document will be 805.  24  25 (EXHIBIT 805 - EXCERPT OF NOTES FROM N. STERRITT  2 6 DATED MAY 24, 198 6)  27  28 MR. WILLMS:  The next one is Exhibit 806, it is a Neil Sterritt  29 field note re:  Mosquito Flat of September 28, 1986.  3 0 MR. GRANT:  No.  31 MR. WILLMS:  806 — my friend — that Neil Sterritt field note,  32 I apologize to my friend, I better leave that for  33 identification while my friend considers it further.  34 Exhibit 807 for Identification, which was marked  35 during Neil Sterritt, it is a topographical data, re:  36 Damsimiloo, D-a-m-s-i-m-i-1-o-o, May 28, 1979.  37 Exhibit 808 also marked during Neil Sterritt  38 topographical data re:  Lagandahl, L-a-g-a-n-d-a-h-1,  39 May 28, 1979.  40 THE COURT:  Mr. Willms, are you reading out a list of exhibits  41 marked for identification to which your friend agrees  42 may now be marked as exhibits or are you listing  43 things that we are going to have an argument about?  44 MR. WILLMS:  No, these are the ones my friend agreed to.  They  45 have been marked for identification.  Did I say 808 on  46 the record?  47 THE COURT:  Yes, it is Lagandahl. 19387  Discussion Re:  Exhibits  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR. WILLMS:  Yes, I thought I did.  Exhibit 809 for  Identification also marked during Neil Sterritt for  identification, topographical, re:  Loss Lake, May 28,  1979.  Exhibit 810 for Identification, marked during  Neil Sterritt, topographical data, re:  Station Creek,  April 24, 1979.  Exhibit 816 for Identification marked  during Neil Sterritt, Neil Sterritt field note, page  43 of Steve Robinson, and the date is December 31,  1981.  Exhibit 817 for Identification marked during  Neil Sterritt, topographical data, re: Silver  Standard.  Exhibit 818 for Identification -- Exhibit  818 for Identification which is a Neil Sterritt field  note, volume 7 pages 36 and 37, 38, 39.  THE REGISTRAR:  There is a note here 36 to 41 is identification.  MR. WILLMS:  36 to 41.  Well, 36 to 41 then.  Now, the next one is Exhibit -- the next one is  Exhibit 830 for Identification, it is an interview of  Jeffrey Harris by Violet Smith, August 24, 1981.  My  friend's caveat is that so long as the entire  interview was tendered the identification can be  lifted.  We will ensure that the entire interview as  we can locate it is tendered.  Now, these, my lord, were Exhibits 8 to 25 on the  cross-examination of Thomas --  THE COURT:  I am sorry, you have run on to something different  now?  MR. WILLMS:  No, I am just describing they are Exhibits 8 to 25  on the cross-examination -- on the territorial  affidavit of Thomas Jack, they are marked -- the  proposed exhibit number was 596, so that they would be  596-8 through 596-25.  And then finally Exhibit 670-1  for Identification is Exhibit 1 on the  cross-examination on the territorial affidavit of Roy  Morris and it is proposed that that just be exhibit  670-1 proper.  THE COURT:  All right.  (EXHIBIT 807  (EXHIBIT 808  (EXHIBIT 809  (EXHIBIT 810  TOPOGRAPHIC SURVEY NOTE RE:  DATED MAY 28, 1979)  DAMSIMILOO  TOPOGRAPHIC SURVEY NOTE RE: LAGANDAHL)  TOPOGRAPHIC SURVEY NOTE RE: LOSS LAKE)  TOPOGRAPHIC SURVEY NOTE RE: STATION  CREEK DATED APRIL 24, 1979) 193?  Discussion Re:  Exhibits  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  (EXHIBIT 816 - EXCERPT OF NOTES OF N. STERRITT PAGE 42  AND 43)  (EXHIBIT 817 - TOPOGRAPHIC SURVEY NOTE RE:  SILVER  STANDARD)  (EXHIBIT 818 - EXCERPT FROM NOTES OF N. STERRITT PAGE  36 - 41)  (EXHIBIT 830 - INTERVIEW WITH JEFFREY HARRIS, AUGUST  24, 1981)  (EXHIBIT 596-8 TO 25 - AFFIDAVIT OF T. JACK DATED MAY  17, 1988)  (EXHIBIT 670-1 - EX. 1 ON THE CROSS-EXAM. ON THE  TERRITORIAL AFFIDAVIT OF ROY MORRIS)  THE COURT: Shall we take the afternoon adjournment? Now, I am  going to need -- when we come back I am going to need  volume 108 and 222, am I?  MR. GRANT:  This is regarding those —  THE COURT:  Yes, those ones that are disputed.  That's as I have  them.  MR. GRANT:  Yes, volume 108 and volume 222, my lord.  THE COURT:  Yes.  All right, I will bring those up then.  THE REGISTRAR:  Order in court.  Court stands adjourned.  (PROCEEDINGS ADJOURNED AT 3:00)  I hereby certify the foregoing to be  a true and accurate transcript of the  proceedings herein, transcribed to the  best of my skill and ability.  TANNIS DEFOE, Official Reporter  United Reporting Service Ltd. 19389  Discussion re Exhibits  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  (PROCEEDINGS RECONVENED PURSUANT TO THE AFTERNOON BREAK)  THE REGISTRAR:  Order in court.  THE COURT:  MR. GRANT:  THE COURT  MR. GRANT  THE COURT  MR. GRANT  Mr. Grant.  Okay.  Possibly I can deal with exhibit -- well,  I'll deal with all three of these.  And I should say  that Mr. Fry informed me at the break that he had made  a mistake regarding Exhibit 578 and the Federal Crown  did object with respect to that.  To which one, 578?  578.  But he was prepared to deal with it today, Mr.  Fry would.  Yes.  All right.  Now, my lord, the argument in this situation goes  on.  Starting on page 6826 Mr. Macaulay asks what is  the purpose of the exhibits, and this is the January  1986 Gitwangak Band housing overview.  And you ask if  I can assist the court, and I explain how the  witnesses explained over the last three days about  different problems and concerns of the Gitwangak,  including the concern of the problems of housing.  "He gave evidence that over the course of three  years that he was the chief councillor there  have been top priorities of three items.  In  each of those three years band housing has been  one of those top priorities.  He's given  extensive evidence as to the types of problems  with the Federal Crown relating to renegotiation or return of funds and -- and the need for  subsidized housing.  He's given extensive  evidence about the overcrowding on the reserve.  And this report is just -- is -- as its set  out, is entitled an overview of the problems  and requirements as of January 1986, and it is  a factual presentation of what the problems are  in the houses and describes those types of  problems, and I submit that it is relevant."  It goes to paragraph 34 of the defence:  "...that the Gitksan and Wet'suwet'en Plaintiffs  have accepted the reserve system, have  acquiesced and given up their rights, and  included in that, of course, they have accepted  the whole concept of band housing." 19390  Discussion re Exhibits  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. GRANT  THE COURT  MR. GRANT  And I go on on page 6827 to say:  "It -- it relates directly to that issue in the  litigation. The only reason I'm seeking that  it be marked as an exhibit for identification  is because my -- I want my friends to have an  opportunity to review it and to -- if they have  any concerns at that point, then we can argue  that out."  In other words, the reason this was marked as an  exhibit for identification at that time was because  defendants wanted an opportunity to review the  document.  In other words --  Well, it goes beyond that though.  Mr. Macaulay made  it very clear that he wasn't going to accept this  document as proof of the truth of the facts stated in  it.  I don't know that he says -- just in the parts  I've read he says that.  I don't know if he goes on  and says that housing is not an issue.  I don't know  if he says that either.  I mean, I'm sure housing is a  real issue, but is it a legal issue?  I understand.  The two are often different.  I understand your distinction there.  Well, quite  simply, my lord, it's that -- in order to determine,  of course, and this will be dealt with in the final  argument I'm sure of my friends, in order to determine  the conduct -- the background to the conduct of the  plaintiffs to the extent that they would deal with the  federal or provincial defendants -- the federal  defendant relating to housing and their reliance of  the provincial defendant that that was acquiescence, I  say that the quality of the housing is part of the  evidence -- part of the reasoning -- the -- the  background.  In some ways my friends, I would submit,  like to put a curtain here that, well, they went to  the Federal Crown, and why they went to the Federal  Crown is not relevant.  But the context is that this  document puts it in context.  Now, it's also my understanding that this document  was a document accepted by the federal defendant in  terms of -- in discussions and in terms of the housing  needs of the band, but that doesn't have to be argued  out now, and I'm sure if I'm wrong -- if I'm wrong in  that, my statement of that won't stand.  But the ultimate issue was at 6829.  Mr. Macaulay 19391  Discussion re Exhibits  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  says :  "...1 have now -- at least now I know what the  purpose of it is.  It will be a matter for  argument to debate whether or not it is  relevant."  And Mr. Plant concurs with Mr. Macaulay's submission.  And so I would submit that that -- it's -- the  argument -- I do agree, my lord, that it was an  argument relating to relevance of that issue, and I  believe I have summarized the relevance of it.  THE COURT:  Well, what do you say is the relevance of it, the  acquiescence?  MR. GRANT:  It is a response to the defence that the plaintiffs  have relied -- have administered the reserve and  relied upon the federal defendant and the reserve  system.  It says -- in order to understand whatever  conduct the plaintiffs have done that the defendants  say results in acquiescence, you must look at the  context, and it goes to the issue of, I would say,  duress or hardship of the plaintiffs, and they had no  options, and the housing report merely does that.  There is nothing magical about the housing report  itself other than that.  It puts it in the context of  what the surrounding circumstances were.  THE COURT:  All right.  Mr. Fry.  MR. FRY:  I take it from Mr. Grant's submission that this is  being adduced to prove the fact of the housing  inadequacies outlined in this report?  THE COURT:  Yes, I think so.  Mr. Willms says there isn't much  point putting it in if it doesn't.  MR. FRY:  My submissions will be simple, my lord.  I think it  can't prove those inadequacies, and I just don't think  things like air insulation and circulation and siding  are relevant.  I think at some point the line has to  be drawn.  THE COURT:  Well, I take it that no notice was given that this  opinion on the quality of housing in Gitwangak would  be sought to be proven by this or any other document?  It wasn't an expert or opinion evidence issue, was it?  MR. FRY:  No.  MR. GRANT:  No, it was a summary of the state -- the condition  of the housing at the time that the witness was the  chief councillor, and he -- and that the facts there,  that is, the facts of the situation, were facts that  he adopted in his evidence.  He knew of it.  He lived 19392  Discussion re Exhibits  1 there, and he was the chief councillor for the three  2 years in which that was there, and on the basis of  3 those inadequacies he made decisions as the chief  4 councillor, which put housing as a priority.  5 THE COURT:  But he described those conditions.  He described the  6 intolerable housing conditions and the problems  7 arising out of the mortgage situation and the  8 priorities that he and the band council placed on this  9 issue.  I would have no difficulty whatsoever on the  10 state of the evidence as it now is in finding that  11 there's a serious housing problem in Gitwangak for  12 native inhabitants, but I don't know that we need this  13 report to paint that lily.  14 MR. GRANT:  Well, I think, as I recall, that, yes, he did — he  15 did summarize those situations, and the report was  16 tendered as --  17 THE COURT:  To support what he had said in that regard, I  18 suspect.  19 MR. GRANT:  Well, to shorten his detailed description.  Rather  20 than having him recite it, he adopted the facts set  21 out in the report, said yes, that sets out the list.  22 THE COURT:  Well, I think that you should know, Mr. Grant, that  23 I don't think it's admissible, but I'm not going to  24 rule on it.  I'm going -- this is one where I don't  25 think it's necessary to come to a firm conclusion on  26 this.  My tendency or my inclination is to say it's  27 not admissible, but in the course of preparing the  28 short judgment I'll be delivering in this case  29 something may arise where I find some reason to think  30 otherwise, in which case I'll let you know, but at the  31 moment I'm going to leave it in its present status as  32 being for identification.  But if you don't hear from  33 me before the time judgment is delivered, it will  34 be -- you may assume that I have decided or I've  35 confirmed my belief that it is not admissible.  I'm  36 going to leave it in its present state for the moment.  37 MR. GRANT:  Fine, my lord.  Okay.  The next one was Exhibit  38 1026-31 and Exhibit 1026-35, and I think both my  39 friend and I agree that they can be dealt with as one  40 because it's the same objection my friend has.  And  41 it's at page 16196, my lord.  This was in Mr.  42 Morrison's evidence.  4 3 THE COURT:  Yes.  44 MR. GRANT:  I'm sorry, my lord, I just want to be sure.  On page  45 16196 -- it's my submission, my lord, and my under-  46 standing in light of your later rulings relating to  47 the historical opinion evidence and your reasons for 19393  Discussion re Exhibits  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  GRANT  COURT  GRANT:  WILLMS  THE  MR.  COURT  GRANT  judgment on that issue that this -- that that deals  with this because at line 10 your lordship states:  "The problem we have here is that up to now the  witness has not been giving historical  opinions, he's been -- he's been describing  source information.  If this document is to be  marked in keeping with what we've been doing in  the past it would be to identify a document he  relied upon in supporting his opinion.  He's  not giving an opinion here yet.  I dare say we  are going to have some more discussion about  this.  I think for the moment I'd just like to  mark this as an exhibit for identification, and  we'll drag these things out at the end."  And then further questions are asked by Ms. Mandell  and it's marked as an exhibit for identification.  Now -- and the same applies with respect to 1026-35.  I'm not sure I recall what this document was.  This is a -- sorry, my lord, I'll get the document.  Oh, I think it's probably -- no, I don't think it is  letter from C. Yorke to -- and proclamation.  No, it's an article.  They're both articles by an individual named  Narvey, my lord.  One is entitled "Lord Shelburne and  the Proclamation of 1763."  I think they're both  Narvey.  And the second one, which is 1026-35, is  entitled "The Royal Proclamation of 7 October 1763 -  The Common Law and Native Rights to land within the  territory granted to the Hudson's Bay Company."  But  they would -- they would fall within the description  of the word treatise in your lordship's judgment.  My  friend and I differ on whether they fall within your  lordship's judgment.  All right.  So they are treatises.  And at this point in time,  at the time that they were marked as exhibits for  identification, of course, this was when you were  considering the use of historians to -- the -- whether  historians should be allowed to give opinion evidence  in court.  And I -- my reading of your judgment is  that you ultimately ruled that historical opinion --  historical evidence was a matter that could be the  basis of opinion evidence, and you admitted the series  of historical opinions that were tendered in evidence  in the case. 19394  Discussion re Exhibits  1 Now, I will just -- it may be better in the  2 circumstances -- yes.  And then on the next page,  3 16209, Ms. Mandell says:  4  5 "...1 suspect that tab 35 will attract the same  6 argument as the Shelburne documents," referring  7 to 31, "so we can either mark at this stage  8 just the maps or the whole tab for the -- just  9 the maps as an exhibit or my preference is to  10 mark the whole tab for identification and we  11 will argue it all out another day.  12 THE COURT:  All right.  It will be 1026-35 for  13 identification."  14  15 So the issue is the same with respect to both  16 articles.  And maybe what I would -- my friend can now  17 say what is the basis for his objection with respect  18 to those two.  19 THE COURT:  Well, yes.  Sorry, Mr. Willms.  20 MR. WILLMS:  I was just going to say, my lord, the basis is at  21 page 16196, which emphasizes why these two treatises  22 are distinct from the treatises considered by your  23 lordship.  At line 10 your lordship observed, and this  24 never changed with Mr. Morrison in respect of these  2 5 documents:  26  27 "The problem we have here is that up to now the  28 witness has not been giving historical  29 opinions, he's been -- he's been describing  30 source information.  If this document is to be  31 marked in keeping with what we've been doing in  32 the past it would be to identify a document he  33 relied upon in supporting his opinion.  He's  34 not giving an opinion here yet."  35  36 And then your lordship says that we are going to have  37 some more discussion about it.  38 Mr. Morrison never did give an opinion on this, my  39 lord, there was no formal written opinion filed, and  40 so this would be similar, in my submission, to counsel  41 handing up at the end of the day during argument  42 learned treatises and asking that they be marked, and  43 I think nobody has suggested that your lordship's  44 judgment can go that far or goes that far yet.  I  45 don't know if my friend is suggesting that now, but it  46 does not fall within your lordship's judgment because  47 these are not treatises that were filed in support of 19395  Discussion re Exhibits  1 the witness' opinion.  2 I -- as treatises themselves, my lord, there may  3 be ways that my friend can still get it in if he wants  4 to.  He can put them to our witnesses, as I put  5 documents to the plaintiffs' witnesses.  But I'm  6 hesitant to agree that the identification can be  7 lifted simply because they're treatises because it  8 just doesn't fit the evidentiary foundation which we  9 argued about, and your lordship noted that at the  10 time.  That situation never changed.  11 THE COURT:  Well, I'm just trying to recast some of this mixture  12 of concepts.  I certainly admitted historical  13 documents as prima facie truth of what they stated,  14 but this is not an historical document.  15 MR. GRANT:  I think we agree it's a treatise.  16 THE COURT:  All right then.  All right.  Well, what is your  17 answer, Mr. Grant, to Mr. Willms' suggestion that Mr.  18 Morrison never did express an opinion and, therefore,  19 treatises which I admitted were ones that were relied  20 upon by witnesses in various disciplines for the  21 purpose of forming their opinion?  And I went so  22 far -- it's a long way to go to accept their  23 underlying facts as prima facie truth of what they  24 stated, but I did not, I don't think, find it  25 necessary, and I don't think I did, and if I did, I  26 did it unwittingly, to say that I would accept as  27 evidence opinion evidence of -- of non-witnesses.  28 MR. GRANT:  Well —  2 9    THE COURT:  Except to the extent that they're adopted by  30 witnesses, experts in the same field, as part of the  31 material they relied upon.  This witness, Mr.  32 Morrison, was in a unique position, almost unique  33 anyway in that he didn't really express an opinion, he  34 just brought my attention to a great -- a great deal  35 of writings, explained who they were and identified a  36 whole lot of historical documents, and to that extent  37 the historical documents are now in.  And he usefully  38 connected them together by giving me a lot of  39 information about who these interesting authors were.  40 And when I say authors, I mean the authors of these  41 documents.  But is there any basis upon which just an  42 article mentioned by Mr. Morrison can be brought  43 within the range of one or other of the -- or more of  44 the judgments I've delivered on this vexing question?  45 MR. GRANT:  Well, I think my friend is splitting a hair, and  46 maybe I -- I may be mistaken here.  47 THE COURT:  I expect we all are, but the difference is maybe 19396  Discussion re Exhibits  1  2  3  MR.  GRANT  4  5  6  7  8  9  10  THE  COURT  11  12  MR.  GRANT  13  THE  COURT  14  15  MR.  GRANT  16  17  18  19  20  21  22  23  24  THE  COURT  25  26  MR.  GRANT  27  THE  COURT  28  29  30  31  MR.  GRANT  32  THE  COURT  33  34  MR.  GRANT  35  36  37  38  39  THE  COURT  40  MR.  GRANT  41  42  43  THE  COURT  44  45  46  MR.  GRANT  47  he's trying to and the rest of us are doing it  accidentally.  I don't know.  :  Well, as I recall the argument with respect to  treatises was where there was a written opinion of an  expert witness and that expert witness put in a  bibliography and referred to documents in the  bibliography, as I recall your lordship's ruling,  the -- the articles in the bibliography could be  tendered.  :  Yes.  Well, they became evidence of the facts they  state for -- on a prima facie basis.  :  Yes.  :  That was because the witness had relied upon them as  part of his or her opinion.  :  Yes.  And the article -- but the -- in many of those  articles in the bibliography the witnesses did not  adopt the opinions in those articles.  And I believe,  as I understand, your lordship ruled that those  articles would go in, as you reiterated now.  But in  the case of Mr. Morrison, he didn't prepare a written  opinion, instead he tendered the documents upon which  he relied in coming to his conclusions and gave his  conclusions viva voce.  :  That's the problem.  Did he give any opinions viva  voce?  I don't think -- I don't think he did.  :  Well, my understanding --  :  You're saying except perhaps inferentially, that  this is an interesting collection of historical  documents and that it is my opinion that they're very  important documents.  :  That's right.  :  But that doesn't include -- that doesn't embrace  treatises.  That related to historical documents.  :  Well, for example, he would take document A and say  when you look at document A you should look at -- it's  my conclusion as an historian for you to look at  document A you should also look at document B, C, and  D.  I'm talking about historical documents here.  :  Yes.  :  And it's my opinion that for you to fully understand  document A you must read document B, C, and D.  That  is an opinion that he came to.  :  Yes.  Let's assume -- I think you're right, and  let's assume for the purpose of this argument you are.  That still doesn't get into treatises.  :  No, but he came to that conclusion, that for you to  look at document -- he gave that opinion evidence for 19397  Discussion re Exhibits  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. GRANT  THE COURT  MR. GRANT  THE COURT  MR. GRANT  you to look at document A you have to look at document  B, C, and D.  Part of what he relied on in forming his  opinion as to what you had to look on were -- were  historical treatises, treatises in his field.  That's oath helping, isn't it, which is -- which is  a no-no?  Well, if Mr. Morrison had put in a written  opinion -- as I read your judgment, my lord, if he had  put in a written opinion, you should look at document  B, C, and D to understand document A, and he put that  in as one of his conclusions, and then he put a  bibliography and he put Exhibit 10 and he said and  I -- it's not -- this is accepted within my field of  history relating to the royal proclamations, it's  accepted within the field but --  Are you right on that?  Did he put in a  bibliography?  No, I'm saying if he had written an opinion --  Oh, yes, if he had done so.  -- and then the bibliography referred to those  documents in his opinion.  In that case, on your  ruling on treatises, the documents in the bibliography  would have been admissible, but instead he -- this  witness was one of the ones where we did not file a  written report, it went orally under Section 10 and  Section 11, and the witness instead of putting it in a  written bibliography he said it is my opinion that  such and such, he gave a summary of opinion setting it  out, and he said and I -- not only look at these  historical documents, but look at what other experts  in my field have done, and other experts, such as Mr.  Narvey, these are their conclusions.  So that's why I  say, with respect, I think my friend is hair  splitting.  He strenuously argued that whenever  anybody put in a bibliography that everything in that  bibliography should go in, but now he's saying that  if -- that we are somehow penalized under Section 11  because if we didn't file a written report, then we  can't rely on any of the treatises upon which that  historian made reference to.  Now, with respect to -- as you may recall, Dr.  Galois didn't refer in his oral evidence to many of  his references at all, but, of course, they were all  tendered as part of his references, and that's the  same kind of evidence.  It was historical evidence  about historical documents and opinions and  conclusions relating to it. 1939?  Discussion re Exhibits  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.  COURT  GRANT  COURT  GRANT  THE COURT:  Well, I can tell you right now, Mr. Grant, that I'm  not going to be able to decide this.  I'm going to  have to get those documents and look at them and  review his evidence and look at the documents he was  discussing when this arose.  So I'll be glad to hear  anything else you want to say.  I think I've got the  point.  I haven't called Mr. Fry yet, but I intend to.  All the oratory in the world isn't going to persuade  me to jump at an answer on this one without going and  looking at those documents.  MR. GRANT:  I appreciate that.  As long as you understand that  analogy that I'm making and appreciate what I'm saying  there.  I think I do.  I'm usually swayed by oratory, but  not today.  At this stage of this week I'd be very impressed if  you were swayed by anybody's oratory.  My lord, I'd  like to raise one matter about tomorrow.  Yes.  I have spoken with my colleague over the break, and  I had anticipated that -- the situation about this  document 58 that my friends have referred to, I don't  know why we didn't know about it till now, but in any  event, we're -- I submit that it's not really fair and  it's improper really to get into this argument  halfway.  I'm not going to have -- not only have  anything to say, I won't even be able to comment on  whatever is being said.  These are documents that may  have been reviewed by our expert witness, they may not  have been.  There may be certain issues relating to  them, there may not be.  And I would ask -- we had  anticipated and my friends had anticipated that we  would have been dealing with these witnesses until  tomorrow.  I take it that this is something that they  are using to fill the gap.  They're saying it's a full  day argument.  I would ask that this be deferred so  that we can review -- there may not be an argument,  for example.  It may be that there can be an agreement  made about these documents.  I don't know.  And I  think it's not -- I'm in no position to comment on it,  and I would ask that this matter be deferred over.  I'm confident that there will be time either next week  or the week after given what my friends have advised  us is their schedule and that this matter -- that  matter be deferred over.  THE COURT:  All right.  Thank you.  Mr. Willms, is there any  pressing need? 19399  Proceedings  1 MR. WILLMS:  It's not a pressing need say for this, my lord.  It  2 has to be done at some time.  It may take a day to do  3 it or up to a day to do it.  4 THE COURT:  That seems to me the best argument your friend has,  5 if it's going to take a day and he's only heard about  6 it and he's not ready to deal with it.  While we could  7 use up some time usefully hearing your side of it, it  8 might be an aid to understanding.  While Mr. Goldie's  9 making his submission, your friend has some advance  10 understanding of what it's all about.  And it does  11 seem to me that there might be a fairness factor in  12 all of this in -- when I say springing, I intend it in  13 a descriptive and not a pejorative sense, of a day  14 long subject on him or half day or whatever length of  15 time.  16 MR. WILLMS:  Except for this, my lord, because I don't -- and I  17 hope that the fact that it's said to take a day isn't  18 a reason that it makes it immediately controversial.  19 THE COURT:  No, but it makes it sound -- it certainly makes it  20 sound more formidable anyway, and, therefore, some  21 additional time being required for preparation and  22 understanding.  23 MR. WILLMS:  Because if I can help my friend, as your lordship  24 will appreciate, one of the arguments that we advanced  25 when we argued the ancient document ruling was that  26 you did not need an expert to bless ancient documents.  27 And these documents have been disclosed since the  28 beginning of the litigation.  They are admissible  29 under your lordship's ruling, and to the extent that  30 tomorrow, without any necessity for my friends to  31 comment at the time, that they and -- your lordship  32 and they are drawn -- have attention drawn to the  33 portions of the document that we say are relevant,  34 that will be far more helpful to my friends in dealing  35 with whatever they want to deal with in the documents  36 than to go read all the documents again.  And that is  37 all that's intended, my lord.  It's not that  38 dissimilar to Dr. Lane directing your lordship to  39 extracts from admissible historical documents, and  40 then my friends will know what the plaintiff -- what  41 the defence case is in respect of those documents.  42 THE COURT:  Well, do your friends know now what documents you're  43 going to be tendering?  44 MR. WILLMS:  Yes, I told them right after lunch that it's B.C.  45 document 58, and it's entitled "Papers Relative to the  46 Affairs of British Columbia Part 1 presented to both  47 Houses of the U.K. Parliament by Command of Her 19400  Proceedings  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. GRANT  Majesty," and it's 18 — it's in the 1850s to 1860s.  THE COURT:  Mr. Grant, if we didn't have this session tomorrow,  would you go home tonight?  MR. GRANT:  My children and my wife would be very happy if that  happened, but I'm certainly not going to make that  argument.  No, I don't think -- it's not a matter of argument,  it's a matter of balancing the proper use of time, and  convenience is a factor in all cases.  I appreciate that, my lord.  I'm not certain because  I hadn't -- I hadn't anticipated that possibility  until noon today, but that may be the case.  But I'll  say this, that what -- the difficulty here we have is  that counsel who is dealing with these issues is not  available tomorrow.  As my friend says, it's similar  to Barbara Lane, Dr. Lane, and what she has done, but,  of course, in that case my friends had the advantage  of 60 -- 30 days notice, 60 days notice, and all of  that.  I mean, I don't know why my friends -- the only  reference we've had to documents until two o'clock  this afternoon was that my friends said we're going to  spend some time dealing with documents.  I don't know  why they haven't corresponded with us and advised us.  We've allocated counsel now to prepare for the cross-  examinations, which we'd anticipated starting on  Monday, and I -- there are certain -- let me suffice  to say, here or there I will -- here or up north I  will be dealing with this case tomorrow, and it's  not -- but I'm just not in a position, and I think we  need some fair notice of it.  THE COURT:  Well, Mr. Willms, I'm disposed to accede to Mr.  Grant's wishes on the main ground that the counsel  that is going to deal with this matter isn't  conveniently available tomorrow.  And if Mr. Grant was  going to deal with it later, I think I'd have him join  us to listen to what Mr. Goldie had to say, but if  it's some other counsel that's going to deal with it,  that counsel should be here.  MR. WILLMS:  My lord, if it's another counsel -- and what would  be most helpful, if we knew who it was, we'll make  sure that we organize when we do present it with that  counsel's schedule.  Maybe my friend could tell me  which counsel will deal with it and then we'll know.  MR. GRANT:  Well, my lord, I am talking in the total dark.  All  I know is it's document 58 and it's a two-inch binder.  Mr. Rush does not know what the documents are.  I  haven't had a chance to talk to Ms. Mandell.  We don't 19401  Proceedings  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR.  THE  MR.  THE  MR.  THE  MR.  MR.  GRANT  COURT  GRANT  COURT  GRANT  COURT  MR. FRY:  THE COURT  MR.  THE  THE  know.  If my friends could put in writing --  I think you should let your friends know on Monday  which counsel it will be --  Yes.  -- so they can schedule accordingly.  Maybe my friends could advise their alternatives.  If we have to do it on a Saturday, we'll do it on a  Saturday.  It won't be the Saturday after next week  because I'm engaged on that day.  And I'd ask not the day after tomorrow.  No, it won't be then either.  All right.  Anything  else?  WILLMS:  Not at this time, my lord.  GRANT:  Will we -- there was the documents that Mr.  Macaulay -- they could be put over to another date.  I don't see any reason to convene tomorrow just for  the two Morrell documents.  I think we're all with you on that, Mr. Fry.  I  can't understand why you people didn't let me know  earlier.  I could have arranged something else for  tomorrow.  There may still be time, my lord.  Well, I have to be here for other things.  All  right.  Ten o'clock Monday.  REGISTRAR:  Order in court.  Court stands adjourned until  ten o'clock Monday.  (PROCEEDINGS ADJOURNED AT 3:55 P.M.)  I hereby certify the foregoing to  be a true and accurate transcript of  the proceedings herein to the best of  my skill and ability.  Leanna Smith  Official Reporter  United Reporting Service Ltd.  GRANT  COURT


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