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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1989-11-24] British Columbia. Supreme Court Nov 24, 1989

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 227?  Proceedings  Discussion  1 24 November 1989  2 Vancouver, B.C.  3  4 THE REGISTRAR:  Order in court.  In the Supreme Court of British  5 Columbia, this 24th day of November, 1989.  In the  6 matter of Delgamuukw versus Her Majesty the Queen at  7 bar, my lord.  May I remind you, sir, you are still  8 under oath?  9 A   Yes.  10 THE REGISTRAR:  And would you state your name for the record  11 please.  12 A   Rodney Palmer.  13  14 RODNEY NORMAN PALMER, Resumed:  15  16    THE REGISTRAR:  Thank you.  17 THE COURT  18 MR. GRANT  19 THE COURT  Mr. Grant.  Thank you, my lord.  Oh, Mr. Grant, before we start, it would be very  20 helpful if I could know as soon as possible whether we  21 are going to be sitting the week after next, assuming  22 Ms. Koenigsberg's case is completed next Thursday as  23 she promised.  24 MS. KOENIGSBERG:  I am sorry, my lord, perhaps I should rise for  25 a moment.  I don't think I was aware that we weren't  26 sitting on the Friday.  Somehow that missed me.  27 THE COURT:  I see.  28 MS. KOENIGSBERG:  But still we may finish by then, so when I  29 said next week I was addressing the possibility that  30 we would have Friday.  Having said that, it is up to  31 Mr. Grant whether we finish tomorrow -- I mean next  32 week.  We have one more witness who we estimate will  33 take one and a half days in chief, if that.  34 THE COURT:  But I need to know about the following week.  35 MR. GRANT:  Well, I am operating on certain assumptions, my  36 lord, and I will set those out and I think I can  37 answer your question, and my friend's if they disagree  38 with my assumptions.  My understanding is that with  39 respect to the Federal case, they have one more  40 witness in court and then there are a number of  41 witnesses to be cross-examined out of court.  On the  42 basis of the witnesses they have in court, on the  43 basis that their maximum time is one and a half days,  44 I don't anticipate that I would be what, two and a  45 half days, which would take us until Thursday with  46 that witness.  I don't anticipate that, so I see that  47 that will be completed.  Mr. Plant has proposed that 22789  Proceedings  Discussion  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  MR.  COURT  GRANT  THE  MR.  THE  MR.  THE  COURT  GRANT  COURT  GRANT  COURT  MR. GRANT  THE COURT  there is some outstanding matters -- that some of the  outstanding matters that he and I discussed before the  close of the Provincial case be dealt with next  Thursday, and I am hoping that we will have time to do  those next Thursday.  If not, I -- and then also there  may be a question of admissibility of some issues in  the Federal case depending on the cross-examinations  out of court which we will do the week after, and if I  thought we might either be in on the 8th or the 11th,  and as you recall we had asked for up to a week on  reply and you strongly urge that we try to do that  before Christmas.  I can't say that now but Mr. Rush  and I are working on that objective which would --  that would happen in the week of the 11th or 18th, if  it was happening before Christmas, and I think that  Mr. Rush and I are working on the assumption that it  would be the week of the 18th right now.  So that you wouldn't expect, if everything goes well  in Ms. Koenigsberg's case, you wouldn't think we would  be sitting the week of the 11th except maybe a day.  Okay.  Well, the week you were asking about was the  week of the 4th, the week after the next.  Yes.  I anticipate we would be doing out-of-court matters  and would not be required in court in that week, and  then I anticipate that in the week of the 11th we  wouldn't sit, and the week of the 18th we would deal  with our -- and trying truncate the reply, and then of  course if there is no time next Thursday with respect  to what Mr. Plant and I raised, I would propose we  could do that the morning of that first day we come  back, for example, although I am hoping we can do that  next Thursday but I don't see why we should come in  for one day just to do that.  With me, it is a question of scheduling my time  which takes some lead time.  I understand that. My assumption is we would go all  of next week and come back into the courtroom --  Not before the 11th.  Not before the 18th.  Well, we talked about between the 11th and 18th, all  right.  I understand of course -- I am sure the court  wouldn't want to sit that full week of the 18th and  that's what Mr. Rush and I are trying to work out.  That's why I'd rather do that the 11th but I will  leave that with you. 22790  R.N. Palmer (for Canada)  cross-exam by Mr. Grant  1 MR. GRANT:  If it's only two days, it might be the end of the  2 week of the 11th.  I understand we would advise you of  3 that -- we are hoping to be able to advise you of that  4 next -- the latter part of next week of the reply.  5 THE COURT:  Yes, all right.  Thank you.  6 MS. KOENIGSBERG:  Next Thursday does give me a little  7 indigestion here.  I am not quite sure how long my  8 friends anticipate the loose ends from their cases are  9 going to take on next Thursday but I would have  10 anticipated --  11 THE COURT:  Well, it's your day in any event.  12 MS. KOENIGSBERG:  Yes, I would have anticipated that we do have  13 a large number of documents that are coming in under  14 the historical where admissibility I don't think is  15 going to be in issue but where I think your lordship  16 might be assisted by at least an outline of what it's  17 about, although I don't anticipate lengthy reading  18 from it.  19 THE COURT:  Thank you.  20 MR. GRANT:  And my friend indicated to me today, I thought she  21 was going to file historical documents today, but  22 that's after court, when I raised that with your  23 lordslip she indicated no they weren't completed but  24 of course I have asked and you have suggested that  25 they give us some lead time in looking at them before  26 they tender them.  2 7 THE COURT:  Thank you.  28  29 CROSS-EXAMINATION BY MR. GRANT:  (Continued)  30 Q   Could you turn to page 25 of your report, Mr. Palmer.  31 The last sentence of the introductory paragraph:  32  33 "A review of available information..."  34  35 I am sorry, I will start at the first sentence:  36  37 "The reports and correspondence in the document  38 files provide considerable information on the  39 Indian fishing sites and methods both at the  40 time of the early Fisheries surveys and in  41 recent years."  42  43 Then you go on in the last sentence:  44  45 "A review of available information is provided  46 below."  47 22791  R.N. Palmer (for Canada)  cross-exam by Mr. Grant  1 And is it correct to say that section 3.2, those  2 subsections, is that, it is a -- it is nothing more or  3 nothing less than that?  It is a review of what the  4 reports say about fishing sites?  Okay.  5 A   That's it mainly.  6 Q   That's it, okay.  Can you go to page 31.  You say in  7 the middle paragraph, the fourth line in:  8  9 "The Kitwancool Fishery is outside the claim  10 area."  11  12 What are you talking about there in terms -- where are  13 you talking about in terms of "the Kitwancool  14 Fishery"?  What geographic area are you referring to?  15 A   The fishery I am referring to there is in the Kitwanga  16 River upstream of the claim area boundary.  17 Q   Is it upstream or downstream of the village of  18 Kitwancool or do you know?  19 A   I don't know for sure.  20 Q   Okay.  You refer there to fishery officer Bogart?  21 A   Yes.  22 Q   Mr. Bogart is still alive, isn't he?  23 A   Yes, to my knowledge.  24 Q   And is he still an employee of the Department or is he  25 retired now?  26 A   He is retired.  27 Q   Okay.  But he retired recently?  28 A   In the last few years.  29 Q   In the last two or three years?  30 A   In the last few, yes.  31 Q   When Ms. Koenigsberg was cross-examining you, or I am  32 sorry, examining you on qualifications, it would be  33 fair to say, Mr. Palmer, that you have no cartographic  34 experience, do you?  You know what I mean by  35 cartography?  36 A   Yes.  37 Q   You don't have any cartographic experience, mapping  38 experience?  39 A   No, not of mapping of use.  I have used maps in my  40 work but no mapping experience, no.  41 Q   And you're -- of course you are not an historian?  42 A   Not by profession, no.  43 Q   And you have not any experience in looking at old  44 historical -- old maps or old sketch maps and  45 interpreting them?  You have no qualifications to do  46 that?  47 MS. KOENIGSBERG:  Well, I am going to — before the witness 22792  R.N. Palmer (for Canada)  cross-exam by Mr. Grant  1 answers that question, I find that a confusing  2 question.  I don't know what he means by the way of  3 what qualifications are required to interpret old  4 sketch maps.  I mean, I don't know if there is a  5 certificate you can get that says that you are --  6 THE COURT:  You mean what skills, I suppose, do you, Mr. Grant,  7 instead of what qualifications?  8 MR. GRANT:  9 Q   Yes, I can -- I don't mind -- I don't think you had  10 any problem with my question, Mr. Palmer, but I will  11 change it to skills.  You have not any training to  12 interpret old maps and put them on to new maps, do  13 you, firstly?  14 A   Not specific training.  15 Q   Okay.  And you have -- do not -- that's not been an  16 important part of your work over the last 30 years,  17 the interpretation of old sketch maps?  18 A  My experience with interpretation of sketch maps  19 frequently find them, especially in spawning reports  20 of Fishery officers, the annual reports that they  21 file, it was frequently part of that report to attach  22 or on the back of the report to have a hand-drawn  23 sketch map of the particular stream or watershed that  24 they were working with and this is particularly true  25 in the earlier reports where good maps that were not  26 available.  27 Q   So but when -- but you would look at that map in the  28 context of the stream that they were reporting on on  29 the report, right?  They would say I have attached a  30 sketch of this showing this or some markings to show  31 spawning or whatever they are trying to show?  32 A   That's right.  33 Q   So you would have no difficulty figuring out which  34 stream they were referring to because they would refer  35 to it in the report; right?  36 A   Yes, it would be part of the report.  37 Q   Okay.  So you have no experience in interpreting  38 geographic locations that are -- geographic locations  39 on sketch maps that are not referred to by those names  40 on modern maps?  That's not part of what you have  41 done?  42 A   Could you repeat that last question please?  43 Q   Well, my understanding is, is that your experience in  44 this area has been that you would look at an old  45 Fisheries officer's report or an old report of a  46 Fisheries officer which has a sketch on it that would  47 refer to the spawning stream, for example, that he was 22793  R.N. Palmer (for Canada)  cross-exam by Mr. Grant  1 referring to reporting on?  2 A   Or streams.  It may be a sketch of a watershed with  3 several tributaries and lakes and this type of thing,  4 yes.  5 Q   But you would know from that -- from the report what  6 streams, tributaries, and lakes he was referring to?  7 A   Yes.  8 Q   Okay.  But you have not interpreted old sketch maps  9 done by persons other than Fisheries officers of the  10 kind that you have talked about?  11 A   I have seen quite a few but I haven't -- I don't think  12 I could say that I have tried to interpret them,  13 except in a general way from my own interest.  14 Q   Okay.  Can you go to your black book.  15 A   Yes.  16 Q   Tab 28.  17 A   Yes, I have that.  18 Q   Now, what is the -- do you know who the author of this  19 sketch map was?  20 A   Not — no, I don't.  21 Q   Okay.  On page 38 of your report you state that a  22 sketch map from the archives, referring to this map,  23 shows fishing grounds, old Indian houses and salmon  24 houses on three lakes, and that's from a reading of  25 the document itself, right?  I mean they are shown on  26 there?  27 A   Yes.  28 Q   But then you say:  29  30 "Corresponding to McDonell Lake, Dennis Lake and  31 Sandstone Lake on a current map."  32  33 Now, those -- that is -- what I am saying is you had  34 to interpret what this map was to figure out which  35 lakes are being sketched there; is that right?  36 A   Yes.  I did know it was a map of the Copper River  37 system.  38 Q   Because it says Copper River on it?  39 A   Yes.  40 Q   Okay.  But -- and there is three lakes on there?  41 A   Yes.  42 Q   Are those the only lake at the headwaters of the  43 Copper River or do you know?  Are there only three  44 lakes of the headwaters of the Copper River I should  45 ask you, or do you know that?  46 A   I believe there to be three in the chain but I can't  47 say for certain without refreshing my memory. 22794  R.N. Palmer (for Canada)  cross-exam by Mr. Grant  1 Q   Okay.  You can put that away if you like.  2 A   Okay.  3 Q   On page 38 of your report you say:  4  5 "The available information suggests that this  6 site was abandon at about 1890."  7  8 There is no citation there as to what you mean by  9 "available information" and I looked in your index and  10 there is no reference.  What are you referring to as  11 "the available information" that you relied on in  12 support of that?  13 A   Let me just read it.  14 Q   You see at the top of 38 you say, after referring to  15 Agent Loring, you say that there is no further  16 correspondence in the available records in reference  17 to this proposal, so it seems that you've referred to  18 the one reference or those references you found and  19 then you say "available information" and I don't know  20 what you are talking about?  21 A   Okay.  22 Q   What is the available information is my question?  23 A   It's -- what I mean by that is my review of the  24 Fisheries reports gave me no further references to  25 fishing in that area.  26 Q   Okay.  So in other words it's --  27 A   It's —  28 Q   -- the absence -- what we could say is the absence of  29 information after that date suggests this site, is  30 that what you're -- that would be a fair way of saying  31 it?  32 A   The reports of the day from the ones that I cited  33 previously indicate to me that at -- in or around 1890  34 that it was -- that the site was abandoned.  There --  35 I found -- I was not able to find any record of re-use  36 of the site.  37 Q   Okay.  Did you refer to any of the evidence of elderly  38 witnesses in this case with reference to this site at  39 McDonell Lake?  4 0 A   No.  41 Q   Did you refer to the evidence of Johnny David, the  42 Commission Evidence of Johnny David taken in 1985?  43 A   No.  44 Q   Did you refer to Jenness with respect to this site,  45 these sites?  46 A   I believe Jenness is an anthropological report.  No, I  47 did not. 22795  R.N. Palmer (for Canada)  cross-exam by Mr. Grant  1  Q  2  A  3  Q  4  A  5  Q  6  7  A  8  Q  9  A  10  Q  11  12  13  14  A  15  Q  16  A  17  Q  18  A  19  Q  20  A  21  Q  22  A  23  Q  24  A  25  Q  26  A  27  28  Q  29  30  A  31  Q  32  33  A  34  Q  35  36  A  37  Q  38  39  40  A  41  Q  42  43  A  44  45  Q  46  A  47    ]  MR. GRANT  Did you refer to Antonio Mills' report or evidence?  No.  You have reviewed Antonio Mill's report, have you?  No.  You have reviewed evidence of some of the plaintiff's  witnesses, haven't you?  At least two.  Which two are you referring to?  Mr. Morrell and Mr. Ray.  Okay.  Didn't you refer to the evidence of Mary  McKenzie, or I should say not refer to it, I don't  mean you referred to it in your report, you didn't,  but didn't you read the evidence of Mary McKenzie?  I think I read some of the transcript, yes.  The evidence of Alfred Joseph?  I read some of the transcript, yes.  The evidence of Madeline Alfred?  Yes.  The evidence of Alfred Mitchell?  Yes.  The evidence of Dan Michell?  I am not sure of that one.  Well, I am referring to your notes --  Yeah, well, I --  -- notes provided by you.  I don't have a full recollection of those notes and I  don't have them in front of me.  Okay.  I am not trying to surprise you, I just will  show you this.  No.  This is your note of Dan Michell in chief and Dan  Michell in cross-examination.  Yes.  So that suggests that you did read Dan Michell's  evidence?  Yes.  You didn't make any reference to any of these  Wet'suwet'en witnesses with respect to this McDonell  Lake, the utilization of McDonell Lake?  My report was written before I read that evidence.  Well, you didn't -- your report was revised in October  of this year.  You read the evidence before then?  It was revised only by removing sections, there was no  new information.  Okay.  You didn't add any information in?  No.  :  My lord, I would like to -- I don't really want to 22796  R.N. Palmer (for Canada)  cross-exam by Mr. Grant  1 examine the witness on this but I'd like to, in terms  2 of a part of this report, page 41, my lord, section  3 3.3, the witness discusses Indian Food Fish permits  4 and licences, and in light of the fact that page 41  5 and 42, he looks at historical documents and does a  6 summary and in light of your comments on that I take  7 no exception to that.  But the paragraph at the bottom  8 of page 42, my lord, it sets out that there is new  9 regulations in 1978, change the name of the permit to  10 a special licence and then there is in what I suggest  11 an inadmissible legal opinion since the legality of  12 band licences have been questioned in the courts.  13 THE COURT:  Where is that again?  Page 42.  14 MR. GRANT:  Page 42, my lord, the very bottom, the last  15 sentence:  16  17 "Since the legality of band licences have been  18 questioned in the courts the regulations were  19 further changed in 1981 to cover the option of  20 a band licence."  21  22 Then the regulation is quoted.  Then on page 44, my  23 lord, this witness does nothing more, and I'd suggest  24 in no aspersion to the witness, he did what he was  25 asked to do, but that this is the boot-strapping in  26 the most blatant form.  This witness does nothing more  27 on pages 44 and 45 than recite from Mr. Woloshyn's and  28 Mr. Turnbull's reports and summarize the history.  29 Well, we had both of those witnesses and I think that  30 it's not proper to have a person qualified as an  31 expert to recite what the witnesses have just said.  32 There is nothing more or less added.  These reports  33 are, subject to my objection yesterday in a discussion  34 with my friend, are going in, that is, the reports of  35 Woloshyn and Turnbull, and of course Woloshyn and  36 Turnbull were both examined and cross-examined, and  37 for this witness to do a pass-over --  3 8    THE COURT:  A wrap-up.  39 MR. GRANT:  Well, a boot-strapping.  I mean, it's not — it's —  40 I would say it's totally unnecessary and improper to  41 have it in the report, so basically I am asking and I  42 don't want to examine -- if necessary, I will examine  43 the witness on a couple of points on these but I don't  44 really think it should be allowed in.  The evidence  45 has come through these witnesses, they have explained  46 it, and some of the evidence this witness summarizes I  47 think is contradicted by these witnesses so I have got 22797  R.N. Palmer (for Canada)  cross-exam by Mr. Grant  1 to actually go through the reports with this witness  2 and I am going to -- and I think that that shouldn't  3 be necessary.  These witnesses wrote the reports, they  4 took the stand, they explained them, were examined and  5 then cross-examined, the reports will go in subject to  6 the irrelevancy questions that my friend and I will  7 work out, and that should be the end of it.  So I ask  8 that from the bottom of 42 to 45 should be deleted.  9 And I'd like to -- I am raising that now because there  10 is -- I don't see the necessity of asking questions on  11 it if it is deleted.  12 THE COURT:  All right.  Ms. Koenigsberg.  13 MS. KOENIGSBERG:  In my submission, there is no question of  14 boot-strapping here.  This report was done long before  15 Mr. Turnbull and Mr. Woloshyn were even known about  16 probably, and this has been here and my friends have  17 had this for two years, more than two years.  All this  18 is, as my friend has characterized it accurately, is a  19 summary from the available information which in the  20 case, once we hit the ten-year period that Mr.  21 Woloshyn and Mr. Turnbull are the relevant Fisheries  22 officers making reports, that they become the source  23 by their reports of the relevant information in  24 relation to regulation in the claim area, and it is  25 the fact of the regulation that is sought to be  26 summarized here.  My friend is not correct in my  27 submission in characterizing the calling of Mr.  28 Turnbull and Mr. Woloshyn by the Federal Defendant as  29 calling this evidence, in fact, other than to ask them  30 if they administered, if they factually carried out  31 their duties.  We did not lead this evidence through  32 those witnesses in this way, and we didn't because the  33 reports we assumed were going to go in and contained  34 the factual information.  My friend did cross-examine  35 on some of it, I might say, not all of it, and  36 elicited evidence from the witnesses with regard to it  37 which may or may not impact on how the evidence that  38 is put forward in this form should be looked at.  And  39 my friend is at liberty of course to cross-examine on  40 it at this point but, in my submission, it's in simply  41 the last ten years on this topic and there was  42 certainly no effort to boot-strapping.  43 THE COURT:  You say it is the other way around, I suppose, that  44 the other witnesses in cross-examination repeated what  45 was already in this report.  46 MS. KOENIGSBERG:  Well, in cross-examination they repeated some  47 of it , yes.  And -- 2279?  R.N. Palmer (for Canada)  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  THE  MR.  COURT  GRANT  THE COURT  MR. GRANT  THE  MR.  THE  COURT  GRANT  COURT  All right.  Well, my lord, I guess it's the old best evidence  rule here.  All this witness -- the reports are going  in subject to the relevancy question and reports will  go in, all of the relevant aspects of them, but better  still, you have heard the evidence of the persons  involved in this historical event.  You have heard  that evidence, you are going to be able to make a  decision on it.  The fact that my friend prepared a  report years ago, and she says she didn't even know  Mr. Woloshyn or Mr. Turnbull, I am sure she did  because their reports were relied upon, that's true,  but we are here, Mr. Palmer is giving evidence  subsequent to them and that's what we are looking at  here.  This adds -- there is not an opinion to be  found in these pages, my lord.  There is nothing to  aid you.  You have the reports.  Well, I wouldn't put it on that basis, Mr. Grant.  What my task in this case is going to be in part is to  summarize.  There is no way I can deal with all of the  evidence in my reasons for judgment.  I am going to  have to summarize and so any summary is of great  assistance and I think that that's using the word --  you and I are using the word in a different sense  there, but inasmuch as I think summaries are much to  be appreciated, I would prefer to have any summary I  can get if it doesn't do violence to -- do unfair  violence to anyone's case and if there is something  erroneous in the summary I think you should  cross-examine on it.  If the summary is accurate, and  I would say considering the history that it's  otherwise unobjectionable and highly desirable.  Well, of course, this summary -- this is what I  understood -- is the task of counsel in legal argument  to be able to summarize for your lordship.  That's true but —  And my friends --  When I go away in my loneliness to worry about all  these things, any summaries that will make it  unnecessary to go searching through viva voce evidence  and documents is going to be invaluable, but I think  that it's necessary and more -- even more desirable  that summaries be accurate.  If there is anything  that's inaccurate about this then I think that I would  be grateful for cross-examination on it, but I am not  going to turn my back on something that might be  useful unless there is good reason to do so. 22799  R.N. Palmer (for Canada)  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  MR.  Now, for example, I was looking at page 44.  It  might be that in that second full paragraph the second  clause might be -- you might want to challenge that,  for example, "in an effort to foster a better working  relationship", you may think that's not the reason for  it at all.  I don't know if it is or not.  I am not  going to pay a great deal of attention to it one way  or the other but, if you find that objectionable, I  think I would be prepared to strike that clause out,  or objectionable or inaccurate.  Well, that's the paragraph that I have concerns  with.  That certainly -- because Mr. Woloshyn was  carefully cross-examined on the history of what he did  by Mr. Guenther and, you know, it's like my friends  are coming at it again and saying, oh, well, this man  here can read a report, he doesn't know anything about  what went on there, he wasn't there, and he reads a  report and he does this summary and this summary  happens to fit in with the Federal theory which I say  is a legal argument.  That's the Federal theory of  what's going on, it is not evidence of the fact.  That's what concerns me.  It seems to me to be a summary of a number of facts.  If it's not accurate, then by all means let's hear  about it but, if it is, then it seems to me to be very  useful.  KOENIGSBERG:  My lord, I would be prepared to strike out "in  an effort to foster a better-working relationship",  but I can tell your lordship that it's on the face of  the document.  COURT:  Well, that may be.  KOENIGSBERG:  It is like a preamble.  GRANT:  And that's why there was some cross-examination of  Mr. Woloshyn on exactly what actually went on which I  think is the better evidence, not some third party  reading what Mr. Woloshyn wrote.  I have struck those words out but I am not going to  strike the rest out.  You should cross-examine on that  if you think you should.  If those are struck out, then it somewhat shortens  it.  All right.  THE COURT  MS.  THE  MS.  MR.  THE COURT  MR. GRANT  COURT  GRANT  Q  A  Mr. Palmer, on page 44 your summary there is solely  based on the reports of Mr. Turnbull and Mr. Woloshyn,  is it not?  I believe so, yes. 22800  R.N. Palmer (for Canada)  cross-exam by Mr. Grant  1 Q   You had no personal knowledge of what went on then?  2 A   No, I was -- that's okay.  3 Q   You weren't directly or indirectly involved with any  4 of this?  5 A   No.  6 Q   Now, I'd like to refer you -- just a moment, my lord,  7 to tab 142, it's the —  8 A   I believe that's in a binder that I don't have.  9 Q   It's in the Fisheries reports collection volume 3 of  10 3, my lord.  11 THE COURT:  Thank you.  I have it.  12 A   142, yes.  13 MR. GRANT:  14 Q   By the way, were you present during the evidence of  15 Mr. Woloshyn in court?  16 A   Yes, I was.  17 Q   And Mr. Turnbull?  18 A   Yes.  19 Q   Now, this is the document 2502 that you refer to at  20 the top of page 44, right?  21 A   25 --  22 Q   — 12?  23 A   12, yes.  24 Q   Now, if you can go on -- turn to page Roman Numeral  25 IV, the last page, my lord, Mr. Woloshyn says:  26  27 "Negotiations for the 1980 Fisheries started in  28 January with Ron McLeod, Gus Jaltema, Tom  29 Rothery, Terry Turnbull and myself attending.  30 Although it was pointed out to Mr. McLeod of  31 the pit falls of the blanket licence issued in  32 1979 he felt the licence should be given  33 another chance in 1980.  When he was told that  34 if the Fisheries Act and Regulations were to be  35 deviated from again then instructions on how  36 the Fishery was to be handled should be written  37 and signed by either himself or Mr. Jaltema to  38 avoid confusion for management purposes.  Mr.  39 McLeod indicated that would not be possible and  40 if things blew up in this area in 1980 then it  41 would be the fault of the local fishery  42 officer.  Although it was pointed out that it  43 was pointed out it was for that specific reason  44 something in writing would be appreciated.  It  45 was to know avail.  Meeting was then held with  46 the tribal council but nothing resolved."  47 22801  R.N. Palmer (for Canada)  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  Now, you are aware from a review of these reports that  in 1979, 1980, and with respect to Mr. Turnbull right  up to 1984, the last of the which we have here, there  was a hold-back, that is, a -- there was a policy not  to charge Indian people with sale of fish.  You are  aware of that, aren't you, from a review of the  reports?  A   The policy seemed to vary a bit during the period but  that seemed to be the intent, to avoid laying charges,  and I think in my report I referred to referring  charges to the tribal council or referring actions to  the tribal council before charges were laid.  Q   Well, go to page 49 of your report.  It says there:  "During the salmon fishing season, fishery  officers and guardians are actively engaged in  efforts to prevent illegal fishing and sale of  fish caught upstream of the commercial fishing  boundaries."  And this is with respect to the claim area, I presume,  is it?  A   Yes.  Q   Okay.  A  And elsewhere.  But in this report it's in the claim  area.  Q   The claim area in this report, right.  Go to tab 145.  I am sorry, no, just a second, my lord.  147 page 17,  this is Mr. Turnbull's report of 1983?  A   Yes.  Q   Middle paragraph under:  "Enforcement officers in the Smithers  subdivision spent quite a bit of time trying to  curtail the illegal transport and sale of  Indian Food Fish.  However, ministrial  direction halfway through the season ended  these activities."  Go to page 147 at -- tab 147 at page  147.  A   Yes.  Q   149, at page 16, the 1984 report.  THE COURT:  Page 16.  MR. GRANT:  Q   Page 16, my lord.  Under enforcement:  oh, that is 22802  R.N. Palmer (for Canada)  cross-exam by Mr. Grant  1 "The sale.  With no ticket book system and  2 policy regarding I.F.F..."  3  4 That's Indian Food Fishery, right, I.F.F.?  5 A   That's right, yes.  6 Q  7  8 "...enforcement became very difficult.  Numerous  9 warnings were issued for small treble hooks and  10 no licences.  The sale of Indian Food Fish ran  11 rampant in the Smithers area (only to keep it  12 to this Sub-district).  Numerous complaints  13 were received but our hands were tied.  14 Hopefully policy regarding illegal of sales of  15 Indian Food Fish etc., will be forthcoming  16 before the 1985 season kicks off."  17  18 Now, in the context of Mr. Woloshyn's statements in  19 1979 and 1980, in the context of Mr. Turnbull's  20 statements in 1983 and 1984, it's not quite accurate  21 to say that Fisheries officers and guardians were  22 actively engaged in efforts to prevent illegal fishing  23 and sale of fish in the claims area in those years, is  24 it?  Their statements directly contradict that, don't  25 they?  26 A   I note that there were charges laid in both those  27 years according to these reports but --  28 Q   There were no charges laid in 1979, 1980.  That's what  29 Mr. Woloshyn was referring to?  30 A   I can't —  31 MS. KOENIGSBERG:  Are you asking him or are you giving evidence?  32 MR. GRANT:  33 Q   I am asking him, it's a question.  Do you dispute  34 that?  35 A   I am just trying to -- without reference to the report  36 I am getting the two years mixed in my mind.  37 Q   Well, look in your report itself, your report on page  38 44:  39  40 "Although a number of violations were referred  41 to the tribal council no charges were laid in  42 1979."  43  44 A   That's correct, yes.  I was trying to get the years  45 straight in my mind.  46 Q   Now, with respect to my question, when you make this  47 statement on page 49, that: 22803  R.N. Palmer (for Canada)  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  THE COURT  MR. GRANT  THE COURT  MR. GRANT  Q  A  Q  A  Q  A  Q  "...fishery officers and guardians are actively  engaged in efforts to prevent illegal fishing  and sale of fish caught upstream of the  commercial fishing boundaries."  And I take it because this report series ends in 1984,  so we are talking about that period of time up to  1984, right, that's what your report covers because  that's what the documents you're relying on cover,  right?  Not talking about '85 to '89, we are talking  up to '84.  Do you understand where --  Up to '84, yes.  Right, okay.  But in light of Mr. Turnbull's  statements in 1983 and '84, that statement you make is  not true with respect to the sale of Indian Food Fish,  is it?  That statement was written in -- with the  understanding that it was dealing with a longer period  than one or two years, that as a normal course of  their duties they enforced to the best of their  ability the regulations.  I agree that in some recent  years, by recent years the 1979 up to '84 period, it  was -- they were given policy direction to not lay  charges in many cases.  Mr. Grant, what passage is it you say is not true?  Page 49, the middle paragraph, my lord.  All right.  That's the paragraph,  paragraph you say:  And, in fact, going to the next  "Enforcement activities in the claim area have  included frequent patrols, road blocks and  plain clothes and undercover operations."  Now, we have heard through Mr. Turnbull about  undercover operations in 1977 and that's what you are  referring to, aren't you?  That's the undercover  operation?  That's the type of undercover, yes.  That's the only one that you know of, isn't it?  That's the only one I know of in the claim area, yes.  I am talking about in the claim area up to 1984?  Yes, okay.  Yes.  But after that -- all of those charges and all of  those charges, do you know what happened to those 22804  R.N. Palmer (for Canada)  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  MS.  THE  MR.  MS.  COURT  GRANT  MR. GRANT  THE COURT  MR.  THE  MR.  THE  MR.  THE  MR.  THE  MR.  charges?  KOENIGSBERG:  Well, if I can just object here.  I mean, I  frankly don't think it matters whether they were --  whether they lost the case or won the case or I don't  know the answer but I don't think it's relevant.  That  isn't what the paragraph says.  He is not saying that  they win every one of their prosecutions.  Doesn't even mention charges.  No, doesn't even mention charges.  KOENIGSBERG:  Talks about enforcement activities which has  been described.  Well, I think that enforcement of activities  obviously the issue of charges -- my friend -- with  all due respect, one part of me says that's great, I  agree with my friends, but my friends have tendered  this report with all of this as relevant.  Once we get  into enforcement activity, I am at liberty to ask the  witness about it.  My friends have insisted this  paragraph go in, not me.  What happens in proceedings in another court with a  different system of laws and different onus of proof,  presumptions of innocence and all those things make  the result completely unhelpful.  I mean, let's take  an extreme case, that there is a strong case that an  Indian charged illegally sold fish or sold fish  illegally, yet the -- and sufficient to establish that  fact by a balance of probabilities in the civil trial,  but because it was a criminal trial the burden of  proof is beyond a reasonable doubt, there was an  acquittal.  Surely in an acquittal on that ground, if  such it was, could have no evidence revalue whatsoever  in deciding whether the offence took place or not.  No it is not a question of the offence, it is a  question of --  I shouldn't say the offence, that's inaccurate.  Whether the actus reus took place.  I am not concerned about that, my lord, but only  about the conduct of the enforcement activities which  is what my friends have raised.  I think you are free to pursue that.  That's what I am looking at.  I think your friend is only objecting to the outcome  of trials in other courts.  Okay.  As I understand it.  GRANT  COURT  GRANT  COURT  GRANT  COURT  GRANT  COURT  GRANT  Q  Okay.  You are aware of the undercover operation in 22805  R.N. Palmer (for Canada)  cross-exam by Mr. Grant  1  2  3  4  A  5  Q  6  7  A  8  Q  9  10  11  A  12  13  14  Q  15  A  16  Q  17  A  18  Q  19  A  20  Q  21  22  23  MS. KOENI  24  25  MR. GRANT  26  Q  27  28  29  30  31  A  32  Q  33  34  35  A  36  Q  37  A  38  Q  39  A  40  Q  41  42  A  43  44  45  Q  46  A  47  the land claim area in 1977, that's the undercover  operation and the only one that you know of that you  are referring to here; right?  That's the only one I know of and --  So it's -- all that you can refer to is what you know  of, right, Mr. Palmer?  Yes, yes.  Okay.  In 1978 through to 1984, as far as you know to  your knowledge there were not undercover operations in  the land claim area?  I don't know of any and I would not necessarily know  if they occurred because there -- put it simply,  undercover operations aren't normally broadcast.  But they would be in the reports in subsequent years?  Not necessarily.  Okay.  In any event from your review of the --  No.  -- documentary material --  Yes, that's right.  And you have access to all the ministerial files  relating to the land claim area for this purpose for  the period of your report, don't you, or do you?  5SBERG:  Ministerial files?  I don't know what my  friend is referring to.  Do you have access to all of the files held by the  Department of Fisheries and Oceans with respect to the  Indian fishery up to 1984?  Did you have access to  those to prepare this report?  Not asking if you read  them, I am asking if you had access to them.  As far as I know --  You looked at particulars of charges and everything,  didn't you?  They are included in your document files  so I presumed that you looked at them.  Not to any great extent.  No.  No.  But you did look at them?  Yeah.  Do you know of any road-blocks within the area up to  1984 that you are referring to?  I know that during my period as a manager in the early  '70s that the officers in the claim area used  road-blocks from time to time.  Is that reflected in these reports?  I can't cite you a specific example but I believe it  would be, yes. 22806  R.N. Palmer (for Canada)  cross-exam by Mr. Grant  1 Q   You carefully considered in your report the  2 ministerial statements and the commission of 1907 with  3 respect to the Babine agreement.  Do you recall we  4 discussed that yesterday?  5 A   Yes.  6 Q   And you commented on the commission relieving the  7 minister of his obligation relating to the clause  8 concerning the sale of fish.  Remember that in your  9 report?  10 A   Yes.  11 Q   You make no comment -- Mr. McLeod of course in 1979,  12 1980, he was the senior person involved in those  13 meetings, wasn't he?  14 A   Yes.  15 Q   And he was representing the minister in the sense that  16 he was the highest person in the meeting so he would  17 be the —  18 A   In that sense.  19 Q   In that context, in that context?  20 A   He was representing the department of ministers ahead,  21 yes.  22 Q   Okay, the department, that's fine.  But you make no  23 reference here where you talk about, and you say it in  24 the modern sense are actively engaged in efforts and  25 so I presume you are talking about the 1977, 1984  26 period, you go up to 1984, so I understand you are  27 using present in that sense; right?  2 8 A  Mm-hmm.  29 Q   You agree with that?  30 A   Sorry, would you --  31 Q   Well, you agree where you say on page 49 "are actively  32 engaged", you are talking about the recent period; you  33 are not talking about today 1989, you are talking  34 about up to 1984?  35 A   The time of the report, that's right.  36 Q   That's right.  37 A   Yes.  38 Q   You make no reference to any change or any of the  39 material that Mr. Turnbull and Mr. Woloshyn referred  40 to as to the policy not to lay charges or not to  41 enforce the sale provision against the Gitksan or  42 Wet'suwet'en.  You make no reference to that in your  43 report, do you?  44 A  Well, I thought I had in the —  45 Q   Well, you do -- I am sorry, you do in the sense of  46 referring to the agreement in 1979?  47 A   Yes. 22807  R.N. Palmer (for Canada)  cross-exam by Mr. Grant  1 Q   But you don't in the sense of dealing with it like you  2 dealt with the minister's promise to the Babine  3 Indians in 1905 and 1907.  You don't say, well, this  4 was a policy here not to enforce sale provisions  5 against Gitksan and Wet'suwet'en and that policy  6 changed.  You don't deal with it in that way?  I can't  7 find it in your report.  8 A   No.  9 Q   Right?  You agree with that, okay.  Just one thing  10 while I am on the -- I am putting in front of you a  11 memorandum from Mr. Murray to yourself in 1975  12 relating to the barricade agreement.  13 A   Yes.  14 Q   And you recall receiving that.  I mean, you would have  15 received it, I am not saying you have to memorize --  16 A   Yes.  17 Q   About that time?  18 A   Yes.  19 Q   I think in fact your initials are on it on August --  20 looks like August 10th, maybe August 19th?  21 A   That's right.  22 Q   It's dated August 14th, I assume it would have been  23 August 19th you received it.  And together with that,  24 this is the Federal Government 2209, was an attachment  25 of a report of 1962 relating to the barricade  26 agreements, right, from Mr. Young to the Regional  27 Director of Indian Affairs.  And, I am sorry, that's a  28 memorandum of September 27, 1968.  That memorandum was  29 attached, that was an internal report of the  30 Department of Indian Affairs in 1968?  31 A   Yes.  32 Q   And Mr. Murray points out to you in the second  33 paragraph:  34  35 "You will note that in the last paragraph on  36 page 2, the right of the Babine Indians to  37 bartar Food Fish is recognized though is not  38 guaranteed for the future."  39  40 And that was brought to your attention at that time as  41 early as 1975, is that right, second paragraph of page  42 1?  43 A   Yes, I see that paragraph.  44 Q   Okay.  I'd ask that this be marked as the next  45 exhibit.  46 THE COURT:  Yes.  I'm not sure if I know the definition of  47 Babine Indians. 2280?  R.N. Palmer (for Canada)  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.  THE  MR.  GRANT  COURT  GRANT  Q  A  Q  A  Q  THE COURT  MR. GRANT  THE  MR.  COURT  GRANT  THE  THE  COURT  Okay.  In this case --  In this context.  In this case, Mr. Palmer, the Babine Indians that are  referred to, are those with whom Helgeson was dealing  with when he -- in that earlier correspondence that  you refer to in your report and Appendix A to your  report; is that right?  I believe so, yes.  And the Babine Indians were those people living around  Babine Lake and upstream, shortly down river of Babine  Lake?  Yes.  Is that right?  So they may have been Gitksan or they may not have  been?  Yes.  I believe that the Babine Indians of the  barricade agreement were not Gitksan but the Babine  that we have referred to in evidence, my lord.  Yes, all right.  They would be I believe linguistically Wet'suwet'en  but not part of the claim.  Your lordship made a  ruling on this in a time of Mr. -- when it was raised  in Mr. Morrell's evidence that although it didn't deal  with the plaintiffs, the Babine agreements were  certainly relevant because of the proximity to the  claim.  All right.  REGISTRAR:  That's number 1217,  (EXHIBIT 1217  MEMORANDUM FROM MR. MURRAY TO MR. PALMER  DATED AUGUST 14, 1975 WITH ATTACHMENT)  MR.  GRANT:  Q  And I identify it as the memorandum from Mr. Murray to  Mr. Palmer of August 14, 1975, with the attachment  that is an Internal Department of Indian Affairs  memorandum dated September 27, 1968 relating to the  barricade agreement with the Babine Indians.  Just one  moment, my lord.  Can you go to page 46 of your report.  My lord, I  won't reiterate my argument.  My objection relating to  this section 3.4 is somewhat different in that this is  really -- this is really a recitation in large part of  regulations, but you have dealt with that, and I just  want to advise, but I will examine on it as your  comments or your ruling. 22809  R.N. Palmer (for Canada)  cross-exam by Mr. Grant  1 The second sentence you state -- well, first of  2 all the first sentence:  3  4 "Weekly close periods have been applied to  5 Indian fisheries in the claim area since the  6 commencement of active regulation in the area."  7  8 What are -- what date are you talking about,  9 commencement of active regulation?  What do you mean  10 by that?  11 A  About 1904.  12 Q   But you agree that there was not a continued presence  13 of Fisheries personnel within the claim area from 1904  14 to 1984?  15 A   Beginning in 1905 or '6, I believe there would have  16 been guardians in the claim area every year, at least  17 guardians and then later Fishery overseers or  18 Fisheries officers --  19 Q   Transient —  20 A   -- during the salmon season as we would call it.  21 Q   But transient, they would come into the claim area and  22 leave the claim area during the salmon season?  23 A   I would say more they would, in a case of guardians,  24 they would either be residence in the claim area or  25 they would come in for the salmon season and would be  26 employed by the Department during the salmon season,  27 that they would be seasonal employees.  At a somewhat  28 later date, and I believe it to be in or around 1930,  29 there was a full-time Fishery overseer stationed in  30 the claim area.  31 Q   Where?  32 A  At Smithers.  33 Q   Now, that was Mr. Giraud?  34 A   Not that early.  Mr. McDonell, I think.  35 Q   And Mr. Giraud replaced him?  36 A  Mr. Giraud and Mr. Elliott.  Mr. Giraud at Terrace and  37 Mr. Elliott at Smithers.  38 Q   Mr. Elliott is still alive, isn't he?  39 A   Yes.  40 Q   When you say "weekly close periods have been applied  41 to Indian fisheries in the claim area" what you mean  42 is that the regulations provided for weekly closures;  43 right?  44 A   Yes.  45 Q   You cannot say that those weekly close periods were  46 actively enforced within the claim area from 1904, can  47 you? 22810  R.N. Palmer (for Canada)  cross-exam by Mr. Grant  1 A   I can't confirm that they were actively enforced every  2 year from 1904.  I have cited some examples, 1910 for  3 example, 1913 for another example where the records  4 tell me that they are enforced.  For example, on the  5 second paragraph at page 46.  6 Q   Yes.  Just a moment, I am going to come to that.  Just  7 a moment.  I want to hear your answer but I just --  8 tab 31, tab 31 of the Palmer book, my lord, is where  9 you refer to this document 766.  Is this the one you  10 are referring to?  11 A   That's one reference, the report of the commission.  12 Q   Yes, it's the one that you have cited in the second  13 paragraph?  14 A   Yes.  15 Q   Right?  16 A   Yes.  17 Q   Is that the one that you are talking about or you were  18 going to refer to?  19 A   That was one, and the other was the B.C. Commissioner  20 Report that we referred to the closure at Babine Lake.  21 Q   Yes, that's Babine Lake, though.  That's outside the  22 claim area, you agree with that?  23 A   Yes, I agree with that.  24 Q   So I am not as interested in that as I am at this one  25 that you talk about in the claim area.  Can you refer  26 me to where that's referred to in this report?  27 A   I am not sure I can find it quickly.  28 Q   I am sorry, here it is on -- I just had my highlight  29 over it.  Fifth page in, my lord.  That first full  30 paragraph:  31  32 "In addition to limiting the Indians to the use  33 of gill-nets of the same length and depth as  34 those used by fishermen in the lower river,  35 there is a week close time of 36 hours."  36  37 That's the reference that you are referring to, isn't  38 it?  39 A   Yes.  40 Q   But that appears to me -- what I am asking you is that  41 there is no evidence that you can find in these  42 reports that these -- aside from implementing these or  43 saying these are when the weekly close periods as to  44 what -- is whether or not on the ground Indian people  45 were operating on the basis of those weekly close  46 periods in 1910, this is an example you have given,  47 that's why I am asking you about it.  There is no 22811  R.N. Palmer (for Canada)  cross-exam by Mr. Grant  1 evidence that that's what occurred, is there?  2 A   I can't recall without reference to it what the report  3 for 1910 of the Fishery officer may have said.  4 Q   Okay.  5 A  What I -- the reason I have to raise that is that from  6 time to time in the reports the officers would report  7 that to the effect that weekly close times are being  8 observed.  I can't say whether that was reported in  9 1910 or not.  10 Q   Okay.  But of course in 1910 you would agree that the  11 means of travel throughout the claim area by an  12 officer stationed in Smithers would have been more  13 difficult than it is for today for example; you agree  14 with that?  15 A   I agree.  16 Q   And you agree that even while you were involved in  17 enforcement, that Fisheries officers were not able to  18 observe all parts of the rivers at all times?  19 A   No.  20 Q   So it would be even more difficult to do that in 1910;  21 you would agree?  22 A   I would agree.  23 Q   And what I am saying is, is that when you say here in  24 your report "weekly close periods have been applied to  25 Indian fisheries", you are saying nothing more that  26 from my review of the reports the department said  27 there is a 36-hour closure for example in 1910, that's  28 what you are referring to; in other words, they said  29 there is a closure on the Skeena River, and that's  30 really all you can say about that?  31 A   Yes.  I have not attempted to evaluate the quality of  32 the enforcement in the sense of the number of  33 successful charges or whatever.  I am saying what  34 the -- what the law said and as best I can what --  35 whether the law was applied to the best of the ability  36 of the officers or not.  37 Q   You can't comment on how it was applied by the  38 officers; all you can say is that the report says in  39 1910, they said there was a 36-hour closure; is that  40 right?  You are nodding, I want you to speak.  41 A   Yes, that's right.  42 Q   Okay.  In the second sentence on that page you say:  43  44 "Although the early close periods are seldom  45 spelled out they most probably conformed to the  46 close periods fixed by regulation and applied  47 in a tidal water commercial salmon fishery." 22812  R.N. Palmer (for Canada)  cross-exam by Mr. Grant  1  2 This is just speculation on your part, isn't it,  3 because you can't -- you couldn't get an answer to  4 that question from your review of the reports?  5 A  My best understanding is that the -- in those days the  6 closure was set by regulation and that the same  7 regulation in respect to closure was applied both in  8 the commercial and Indian fishery.  9 Q   Okay.  So that a regulation made in -- the regulations  10 were made out of Ottawa or at that time out of  11 Victoria with the Fisheries commissioner in B.C.?  12 A   No, they were made out of Ottawa.  13 Q   So there would be a regulation made in Ottawa that  14 would apply to the commercial coastal fishery relating  15 to closures?  16 A  Would apply to fisheries in British Columbia.  17 Q   Okay.  I am going to come to that.  This regulation  18 would be applied to fisheries in British Columbia and  19 of course the focus at that time was the largest  20 fishery at that time as today was the commercial  21 coastal fishery; right?  22 A   Yes, but there were provisions.  23 Q   I am going to come to that, don't worry.  Don't worry,  24 I am going to come to that.  So what you are saying  25 is, is that the way -- your understanding is that the  26 way it worked was that that regulation they didn't  27 distinguish at that time between the commercial  28 coastal fishery and the inland Indian fishery; they  29 just said this is the closure applying to the area?  30 A   In respect of closed periods, yes.  31 Q   That's why you make that statement?  32 A   Yes.  33 Q   That's the sole basis upon which you make it?  34 A   Yes.  35 MR. GRANT:  Okay.  I just want to understand why you are saying  36 that.  Now --  37 MS. KOENIGSBERG:  My friend cautioned the witness he need not  38 worry about telling him about other kinds of  39 provisions than the general one.  I don't know if  40 that's been covered but he didn't -- I didn't notice  41 that he came back to it and offered the witness the  42 opportunity to explain something else if he has  43 something else to explain.  I don't know.  44 MR. GRANT:  Well, my lord, I understood that the witness was --  45 kept trying to explain that these regulations applied  46 to the Indian inland fishery.  I was just trying to  47 figure out how it was working and going through the 22813  R.N. Palmer (for Canada)  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  THE COURT  A  THE COURT  MR. GRANT  Q  steps, and I went right through the steps to the end,  so if my friend thinks there is something raised on  re-direct, that's fine, but the witness answered both  of my questions and I wasn't trying to stop the  witness from broader explanation but I think he  covered the point.  The point he raised was he kept  trying to say, well, the regulation applied to the  Indian fishery and at the end I said that's the basis  upon which you make that statement and he agreed.  :  Is there anything you think you should add to the  answers to make them complete?  What I was going to add, my lord, was that when the  regulations were set, they were set to cover both the  commercial fishery and the Indian fishery and in the  regulations there were provisions specific to the  Indian fishery.  :  All right, thank you.  A  A  THE COURT  MR. GRANT  Q  Can you go to page 53 of your report,  sentence:  The second full  "The data presented by James, 1984, illustrates  that Indians from the Gitksan-Wet'suwet'en  bands have a significant involvement in the  commercial salmon fishery."  What do you mean by significant?  What percentage are  you talking about would be significant?  Answer it this way, I would consider 79 vessels owned  or operated as significant.  I can't put it in terms  of percentage.  1.4 percent of the commercial coastal fishery, is that  significant to you?  Yes, it's not major but it's significant.  :  What, 1.4 percent of the total?  1.4 percent of the coastal commercial fishery being  operated by the Gitksan and Wet'suwet'en, you think  that's significant?  A   In the sense that I wrote that, that --  MR. GRANT:  Well that's what I want to know what you mean by  significant, and I see the second sentence you say 79  salmon fishing vessels, that's not what I am talking  about, I am talking about what you mean by significant  in the commercial coastal fishery.  MS. KOENIGSBERG:  Well, maybe the witness knows very well what  my friend is referring to but I don't know what 1.4 22814  R.N. Palmer (for Canada)  cross-exam by Mr. Grant  1  2  THE  COURT  3  4  MR.  GRANT  5  6  MS.  KOENI  7  8  MR.  GRANT  9  Q  10  11  12  13  14  15  A  16  Q  17  18  19  20  A  21  22  23  24  25  26  27  THE  COURT  28  MR.  GRANT  29  THE  COURT  30  MR.  GRANT  31  THE  COURT  32  MR.  GRANT  33  Q  34  35  36  37  38  A  39  Q  40  A  41  42  Q  43  A  44  Q  45  46  47  A  percent means.  I suppose that might be 25 percent of the north  coast fishery or something like that.  I am going to come to it, and my friend doesn't have  to —  5SBERG:  It would be helpful if my friend did come to  it right away.  I want the witness' -- the witness, you, Mr. Palmer,  have said that the Gitksan-Wet'suwet'en bands have a  significant involvement in the commercial salmon  fishery and I want to know what you mean by  significant and you have explained that 79 vessels is  significant?  Yes.  In determining significance, don't you have to  consider the proportion of the Gitksan-Wet'suwet'en  fishery in the context of the whole fishery?  You  would agree with that?  I don't believe that I used the term significant in a  statistical or even technical sense.  It was  significant to me that there were -- that there was  involvement.  It comes down to the fact that I was  merely trying to demonstrate that there were, as of  that time, Gitksan-Wet'suwet'en people still involved  in the commercial fishery.  Where is the 1.4 percent?  I am going to come to that.  Is it in the report?  It's not in the report, no, it's not.  All right.  That's what I found sort of interesting.  So really  what you are saying is nothing more than the Gitksan  and Wet'suwet'en are involved in the commercial  fishery as of the time of James.  That's really what  you are saying?  Yeah.  And that's what's significant?  Yes.  I didn't attempt to analyse the proportion of  the fishing fleet that they represented.  Can you go to tab 36?  Of.  I am sorry, 36 of your book, maybe madam registrar can  take that out of -- just move that one out of the way.  Page 31 table 3.4?  4.3. 22815  R.N. Palmer (for Canada)  cross-exam by Mr. Grant  1  Q  2  3  A  4  Q  5  6  A  7  Q  8  A  9  Q  10  11  12  A  13  MR.  GRANT  14  15  16  THE  COURT  17  MR.  GRANT  18  19  THE  COURT  20  MR.  GRANT  21  Q  22  23  24  25  26  A  27  Q  28  A  29  Q  30  31  A  32  Q  33  A  34  Q  35  36  37  38  39  40  41  42  A  43  Q  44  A  45  46  Q  47  4.3, thank you.  Gitksan-Wet'suwet'en, 66 vessels,  right?  Yes.  Salmon, this is -- we are talking salmon which is the  significant one, right?  Yes.  Total Indian vessels, 664; right?  Yes.  So my untutored mind says that the  Gitksan-Wet'suwet'en have ten percent of the native  salmon fleet.  You would not dispute that, roughly?  Roughly, yes.  :  Let's go back to Roman Numeral "i" and Mr. James'  introduction, Roman Numeral iii(3) second paragraph  down.  :  What page are we on?  :  Roman Numeral i, I am sorry, my lord it is Roman  Numeral 3, I keep saying that.  Have you got it?  :  Yes.  Second paragraph down, this is the abstract, okay.  In  1982 the total native owned and operated salmon fleet  reporting landing status Indians only consisted of 673  vessels or 14.8 percent of the total salmon fleet,  okay.  Yes.  You have no reason to dispute that either, do you?  No.  In fact, this is who you rely on, Mr. James in terms  of his whole commentary?  It's Ms. James.  Pardon?  James is a woman.  Ms. James.  I am sorry, Ms. James, okay.  You rely on  her report for this whole commentary on the -- so what  I say is, give or take a little bit, is that if 14.8  percent of the total salmon fleet is Indian and ten  percent of the Indian salmon fleet is Gitksan, by my  basic mathematics I figure the Gitksan and  Wet'suwet'en is about 1.4 percent and it may be 1.6.  That's how I -- you follow my reading?  I follow your reading.  And you don't dispute -- you agree with that?  Well, I won't check your arithmetic but I think it's  in that -- maybe in that ballpark, yes.  In that ballpark, right.  I mean it might be out by --  well, now, I -- you didn't do that when you prepared 22816  R.N. Palmer (for Canada)  cross-exam by Mr. Grant  1  2  3  A  4  Q  5  6  7  8  9  10  A  11  12  Q  13  14  15  16  17  18  THE COURT  19  MR. GRANT  20  Q  21  22  23  A  24  Q  25  26  A  27  Q  28  29  30  31  A  32  33  Q  34  35  36  37  38  39  A  40  41  Q  42  43  44  45  A  46  Q  47  A  this report.  You have indicated you just counted the  number of vessels?  That's right.  But now that I have pointed that out to you out of the  report that you rely on, you would agree with me that  the Gitksan and Wet'suwet'en bands' involvement in the  commercial salmon fishery is not really that  significant, is it, in the context of the commercial  fishery?  I would still consider it significant, certainly not  major, but I would consider it --  Okay, that's fine, if you still think it's  significant, that's fine.  Now, let me go to that same tab -- sorry, my lord.  Now, this tab is entitled Historic and Present Native  participation in Pacific Coast Commercial Fisheries  dated September --  :  I am sorry, tab 36.  Tab 36, yes.  It's James, September 1984.  Now, this  is something prepared for the Department of Fisheries  and Oceans, right?  Yes, prepared within, yes.  Prepared within and for by their planning and  economics branch?  Yes.  Now, the purpose of this was to parallel the land  claims of Indian people in the province with their  participation in the commercial fishery.  That's how I  read it.  Would that be a fair summary of it?  I believe that's what she was attempting to do in part  of the report.  Can you go to page 18, and in page 18 Miss James says  that there are two broad categories of native claims,  comprehensive claims and specific claims.  Do you  understand what she's referring to there as  comprehensive claims?  Have you heard of that before  you read this?  Yes.  In a general sense I understand what is meant by  comprehensive claim.  And you're aware of the policy of the Federal  defendant to accept for negotiation claims of --  claims to geographic areas by Indian people who have  not made treaties with the Federal Crown?  Yes.  You are aware of that?  In a general sense, yes. 22817  R.N. Palmer (for Canada)  cross-exam by Mr. Grant  1  Q  2  A  3  Q  4  5  6  7  8  9  10  11  12  13  14  15  16  A  17  MR.  PLANT  18  19  20  21  MR.  GRANT  22  THE  COURT  23  MR.  GRANT  24  25  THE  COURT  26  MR.  GRANT  27  THE  COURT  28  MR.  GRANT  29  Q  30  A  31  MR.  GRANT  32  THE  COURT  33  MR.  GRANT  34  THE  COURT  35  36  MR.  GRANT  37  THE  REGIS  38  39  40  41  42  43  44  45  46  47  I know you are not directly involved but you know?  Yes.  And she states:  "Since very few treaties were signed in British  Columbia most native claims in the province...'  This is the second paragraph, my lord:  "...will be comprehensive claims and therefore  deal extensively with fishing rights and  opportunities for economic development related  to fishery resources."  And you're aware of that, aren't you?  Yes.  :  Of what, my lord?  I have -- I am sorry that I have  to rise.  Is it the whole thing or is it merely the  fact that most claims in the province will be  comprehensive claims?  Well —  Perhaps you could put your question again.  Yes, I am asking if you are aware of everything I  have read in that sentence.  Well, he is now.  Did you mean before?  Yes.  Yes.  You were knowledgeable about that before?  I am just re-reading the sentence.  That's fine.  Perhaps we will take the morning adjournment.  Oh, I see the time, my lord, yes.  You might direct his attention to anything else you  want him to read, Mr. Grant.  Yes, I will.  RAR:  Order in court.  Court stands adjourned for a  short recess.  (PROCEEDINGS ADJOURNED AT 11:15 a.m.) 2281?  R.N. Palmer (for Canada)  cross-exam by Mr. Grant  1 I hereby certify the foregoing to be  2 a true and accurate transcript of the  3 proceedings herein, transcribed to the  4 best of my skill and ability.  5  6  7  8  9    10 TANNIS DEFOE, 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 22819  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.N. Palmer (for Canada)  Cross-exam by Mr. Grant  (PROCEEDINGS RECONVENED PURSUANT TO ADJOURNMENT)  THE REGISTRAR: Order in court.  THE COURT:  Grant.  MR. GRANT:  Q   Thank you, my lord.  You've had a chance to read  section 3 on native claims, the background, haven't  you now, Mr. Palmer?  Yes.  And you are aware that -- you've already explained you  know what the comprehensive claims are and you are  aware of the federal government's policy with respect  to the negotiation of comprehensive claims; that's  correct, isn't it?  Yes, only in a general sense.  I'm not very  knowledgeable on the claims process of the claims  negotiation process.  Right.  But you are aware, are you not, that one  impact of these claims is on the fishery resource?  Yes.  And you are aware of the framework agreement with  the Nishga that was recently signed by the federal  defendant -- federal crown?  KOENIGSBERG:  Excuse me, what do you mean is he aware?  Is  he aware such a thing happened?  MR.  MS.  MR.  A  Q  A  A  GRANT  GRANT:  Q  A  Q  A  Q  A  Q  A  Q  A  Q  A  Q  A  Yes.  Do you know that that happened that the federal  crown and the Nishga have entered into a framework  agreement?  I have only a very general knowledge that there is  some sort of agreement, yes.  And you know that that also deals with the fishery?  Yes.  And that's a very important part of that framework  agreement, isn't it?  Yes.  You would agree with that?  Yes.  Yes.  Go to page 23.  Of James?  This tab.  Yes.  Now, that map shows some of the claims but not all of  the claims that are listed by Ms. James; is that  right?  It just shows the ones that are proximate to  the coast?  Yeah, in a very general way.  Yes. 22820  R.N. Palmer (for Canada)  Cross-exam by Mr. Grant  1  MR.  GRANT  2  THE  COURT  3  MR.  GRANT  4  5  THE  COURT  6  MR.  GRANT  7  Q  8  9  10  11  12  A  13  Q  14  A  15  Q  16  17  A  18  19  MR.  GRANT  20  THE  COURT  21  THE  WITNE  22  THE  COURT  23  MR.  GRANT  24  Q  25  26  27  28  29  A  30  Q  31  32  33  A  34  Q  35  36  37  38  39  40  41  A  42  Q  43  44  45  A  46  Q  47  Yes.  Okay.  And on page 24, Miss James --  Where's the legend?  The listing of the claims, my lord, is -- definition  of claim groups is table 3.1 page 20, 21 and 22.  :  Oh, all right.  But you see I was concerned that you not be misled  that figure 3.1 is not a reflection of all of those  claims, but it's only a reflection of very proximate  claim areas of the different groups, and you would  agree with that, wouldn't you?  Yes, and including some that aren't on the coast.  Yes.  Such as the Gitksan and Wet'suwet'en?  Yes.  Yes.  But what I mean by proximate is, you know, the  Gitksan-Wet'suwet'en claim isn't a rectangle?  No, and I would say this map's not attempting to  delineate the boundaries in any way.  :   That's right.  Okay.  : Just general areas?  3S:   Looking at it it looks very general.  :  Yes.  All right.  Yes.  So page 19 where Miss James says "in addition,  the traditional territories of each ethnic group are  indicated on the map in figure 3.1".  You see that,  page 19 of the report, section 3.2, the last sentence?  Do you have that?  Yes, I have it.  That actually really isn't a very accurate statement  what he one looks at figure 3.1, you'd agree with  that?  I would have to agree with that.  Yes.  Okay.  But on page 24 Miss James gets closer to  the point of what she's really looking at rather than  this brief summary and that is that because of the  importance of the implications of land claims to  native participation in the commercial fishery  following information on the present fleets is  presented by claim group.  Do you see that?  Yes.  And so she really analyses the commercial fishery and  the involvement of different groups in the commercial  fishery based on their claim group?  Yes.  Right.  But there's no indication in this report and  no evidence as to any Wet'suwet'en being involved in 22821  R.N. Palmer (for Canada)  Cross-exam by Mr. Grant  1 the commercial fishery at the time of Miss James'  2 report is there, any of this 1.4 per cent of the  3 commercial fishery being Wet'suwet'en as opposed to  4 Gitksan?  5 A   I don't know that she split it in this report.  6 Q   Right.  What she did was she said okay, here's the  7 Gitksan-Wet'suwet'en group, and from my analysis the  8 Gitksan-Wet'suwet'en group taken together has 79  9 vessels?  10 A   Yes.  11 Q   And there may well not be a single Wet'suwet'en in  12 that group, she was just dealing with the group as one  13 of the land claim groups, that's how she broke it up?  14 A   That's how she broke it out.  15 Q   So you would agree with me that you cannot comment on  16 whether or not there are any Wet'suwet'ens involved in  17 the commercial fishery at the time of this report?  18 A   No, I can only comment on involvement of  19 Gitksan-Wet'suwet'en jointly as a claim group.  20 Q   Yes.  Mr. Palmer, in the course of reviewing your  21 files produced by your counsel I came across this  22 document.  Now, this is a fishing sites claim by  23 Kispiox and it's handwritten, anonymous map based on  24 Green, 1911, of Skeena sites on the rivers or -- and  25 yes, and then attached to it was a November 2nd, 1911  2 6 document of I believe Ashdown Green.  You're familiar  27 with this document, aren't you?  When I say -- I  28 should be fair because we make consider it too, you're  29 familiar -- you have seen before the November 2nd,  30 1911 letter of Mr. Ashdown Green, have you not?  31 A   I can't recollect much about the contents.  I may have  32 seen it.  It may have been passed to me.  33 Q   You're aware that Ashdown Green did a report around  34 1911 about the fishing sites on the Skeena and upper  35 Kispiox, you know that don't you?  36 A   I know -- I know in a general sense that Ashdown Green  37 did surveys.  I'm not -- I have no direct recollection  38 of a report specifically on fishing sites.  39 Q   Well, look at the first paragraph here.  40  41 "I have the honour to report that on the 4th of  42 August last I arrived at Kispiox where I  43 engaged an interpreter for Terrace and an  44 Indian to accompany me up the valley to examine  45 the Indian fisheries and hunting stations."  46  47 And then there's a -- I don't think we have to go 22822  R.N. Palmer (for Canada)  Cross-exam by Mr. Grant  1 through it all, but there is a detailed description of  2 the fishing sites that he's recorded and it's  3 signed -- you've seen it's signed by Ashdown Green.  4 You haven't referred to this document in your report,  5 have you?  6 A   No, it was -- it may well have been passed to me at  7 some time subsequent to the writing of my report as  8 occasionally documents from other files were for my  9 information.  When I wrote the report I relied almost  10 exclusively on fisheries reports and so I didn't use  11 this report in any way.  12 Q   Okay.  And when you read this report after it was  13 passed on to you you didn't revise your report to  14 incorporate it in any way?  You didn't see the  15 necessity of doing that and you didn't do that?  16 A   No, because I was dealing with sites only in a general  17 way and I'd already reported that they were -- there  18 was Indian fishing in the Kispiox River.  For the  19 purpose of my report I didn't attempt to pin it down  20 to particular bars or points on the river.  21 Q   Yes.  So yes, you didn't -- you don't in your report  22 analyse the specific fishing sites?  23 A   No.  24 MR. GRANT:   Okay.  I'd ask that this be marked as an exhibit  25 and I don't think my friend's going to object.  She's  26 confirmed this is already an exhibit which I thought  27 so, but I hadn't -- I hadn't --  28 MS. KOENIGSBERG:  Well, I have no objection to marking it again.  29 I think I must say my recollection is vague.  I think  30 it's been marked more than once already, but --  31 THE COURT:  Once we go over one it doesn't matter how many  32 times --  33 MS. KOENIGSBERG:  It might gain some weight if it's got three or  34 four exhibit numbers.  35 MR. PLANT: My lord, I'm just curious because my own research on  36 this is incomplete as to whether the first page of  37 this document is part of the document or an attachment  38 that someone's added to it at a later date.  39 THE COURT:  Does it mention figure 1 in the body of the letter?  40 MR. GRANT:  No.  What — but figure 1 — figure 1 is an  41 anonymous map from the same body of files.  It appears  42 that it coincides with -- the names on figure 1 appear  43 to coincide with Green's description, but that of  44 course is something that my friends may at the end of  45 the day argue and say it does or doesn't.  46 MR. PLANT:  That's really the point, one of the points, my lord.  47 THE COURT: All right. 22823  R.N. Palmer (for Canada)  Cross-exam by Mr. Grant  1 MR. PLANT:  I take it, for example, that the handwriting in the  2 lower right-hand corner with the words "anonymous map  3 based on Green, 1911", and so on, have been added by  4 my friend or one of his research assistants and were  5 not part of the original archival document.  I don't  6 know that, I'm just assuming that to be the case.  7 MS. KOENIGSBERG: I'm also assuming it to be true.  I don't  8 recall seeing that part on there before, but I should  9 also rise to say that attached to this is a letter of  10 Mr. Loring's of 1910, and I don't know if my friend  11 intended that or if he's overlooked it.  What's the name of the author of the second letter?  Mr. Loring.  Oh, yes.  You've heard of him I think by now on many  12 THE COURT:  13 MR. GRANT:  14 THE COURT:  15 MR. GRANT:  16 occasions.  17 THE COURT:  Yes.  18 MS. KOENIGSBERG:  And at least he's had a number reserved for  19 him.  20 THE COURT: All right.  Well, this collection can be Exhibit 1218  21 and it will be open to anyone who wants to make an  22 issue of it to have it divorced in whole or in part  23 from its various members.  24  25 (EXHIBIT 1218: Letter D May 5, 1910, and Nov. 2, all,  26 plus anonymous map re Skeena & Kispiox fishing sites)  27  28 MR. GRANT:  Well, what I would just say then for the record is  29 the collection, the May 5th, 1910 letter from Mr.  30 Loring, and the November 2nd, 1911 letter from Mr.  31 Ashdown Green, and the sketch map which is an archival  32 document, fishing sites claim by Kispiox, and that  33 these are all relating to Skeena -- upper Skeena and  34 Kispiox fishing sites, this correspondence.  35 THE COURT  3 6 MR. GRANT  37    THE COURT  Yes.  All right.  Those are all my questions.  Thank you, Mr. Palmer.  Thank you.  38 MS. KOENIGSBERG: I have no re-examination.  39 THE COURT:  All right.  Thank you, Mr. Palmer.  You're free to  40 go or stay as you wish.  41 MS. KOENIGSBERG: We have not marked as an exhibit Mr. Palmer's  42 report nor the four volumes of material in support  43 thereof, and I would ask that those be marked as an  44 exhibit at this time proper.  45 THE COURT:  Yes.  The report I think we reserved a number for  46 it.  47 MS. KOENIGSBERG:  1216. 22824  Proceedings  1 (EXHIBIT 1216: Palmer report)  2  3 THE COURT:  1216, yes.  And the three volumes I think we've —  4 MS. KOENIGSBERG:  Yes, they were reserved as Exhibit 1216 A, B,  5 C and D.  6  7 (EXHIBIT 1216-A  8 (EXHIBIT 1216-B  9 (EXHIBIT 1216-C  10 (EXHIBIT 1216-D  Palmer documents (supporting report)  Fisheries reports collections, Vol.1)  Fisheries reports collections, Vol.2)  Fisheries reports collections, Vol.3)  11  12 THE COURT:  Yes, and then the additional documents which had  13 been called Mr. Palmer's documents.  14 MS. KOENIGSBERG:  They were Exhibit 1216 A.  15 THE COURT:  They were A.  16 MS. KOENIGSBERG: Yes, my lord.  I — obviously there's been some  17 miscommunication in describing these.  18 THE COURT:  Yes, they were.  Yes.  19 MS. KOENIGSBERG:  Yes.  20 THE COURT:  That's not going to work, is it?  21 MS. KOENIGSBERG:  Yes.  I'm sorry, my lord, why not?  22 THE COURT:  Well, there were three volumes.  Oh, you're not  23 tendering them yet.  24 MS. KOENIGSBERG:  Yes, they're tendered, and they've been  25 reserved.  My lord, I think I'm going to try this one  26 more time.  I'm not quite sure where we went off the  27 rails in my trying to describe to you what I was  2 8 trying to do.  The four volumes which Mr. Palmer has  29 had reference to are comprised of the first volume  30 being R. N. Palmer documents.  31 THE COURT:  Yes.  32 MS. KOENIGSBERG:  And the balance being under the fisheries  33 reports collection because it mostly contains  34 fisheries reports, whereas the first volume contained  35 a lot of other kinds of references.  36 THE COURT:  Well, Mrs. Thomson tells me we don't have a problem.  37 The report is 1216.  The collection of documents, tabs  38 1 to 36 I think it is, she tells me is 1216 A.  39 MS. KOENIGSBERG:  Yes.  4 0 THE COURT:  And then the three volumes that you had previously  41 handed in but had not been tendered until later are  42 1216 B, C, and D.  43 MS. KOENIGSBERG:  Right.  That was my understanding, my lord.  44 THE COURT:  All right.  Thank you.  45 MR. GRANT:  My lord, if I can speak on this just briefly.  With  46 respect to 1216 A, tab 3, the Tagashi, and Smith, I  47 reserve the right to object to reliance on that, other 22825  Proceedings  1 than for the only point referred to in the Palmer  2 report, based on the fact that it is highly irrelevant  3 and it's the kind of report that was resisted and  4 objected to when it was dealt with in Mr. Morrell's  5 evidence.  It's not -- its relevance is marginal.  6 Similarily, with tab 4 on that one and tab 7, if my  7 friend is not going -- if my friends, I should say,  8 because I think Mr. Plant may or may not have some use  9 of it, if my friends are not going to rely on it for  10 anything other than the reference in Mr. Palmer's  11 report, I don't see any necessity to remove it, but it  12 is a question of relevance on those three tabs.  So I  13 don't -- that's the reservation.  And with respect to  14 the --  15 THE COURT:  Well, what are the three again?  16 MR. GRANT:  Tab 12 — Exhibit 1216 A.  17 THE COURT:  Yes.  18 MR. GRANT:  Tab 3.  19 THE COURT:  Three, yes.  20 MR. GRANT:  "Timing and rate of migration of Babine sockeye  21 stocks through the Skeena and Babine River", and it's  22 a detailed report about -- with models and statistical  23 models and everything else which I didn't bother to  24 examine the witness on, but it was -- I just think  25 that -- and similarily with respect to tab 4, a  26 similar kind of document of Jordan and Smith, and tab  27 7, which is Jordan's document.  2 8 THE COURT:  All right.  29 MR. GRANT:  Those documents come within the ambit of what I  30 found with your ruling that when Mr. Morrell related  31 to modelling and analysis in that way you said, "Is  32 there any need to go beyond the fact that there were a  33 lot of fish here in this period and then less fish  34 here there.", and then that's the end of it. And I say  35 that these documents are of the same genre and that I  36 did not cross-examine on it.  I just say that they're  37 not relevant and there's no need to cross-examine on  38 that aspect of his report.  I'm not -- we made our  39 submissions regarding the report itself, so that's not  40 the issue and I assume my friend is not going to rely  41 on these for anything further than the reference in  42 the report.  If that's the case, then that's fine.  43 With respect to Exhibits 1216 --  44 THE COURT:  Perhaps I should hear your friend.  45 MR. GRANT:  Okay.  46 MS. KOENIGSBERG:  Well, I'm not quite sure what my friend means.  47 I don't know if there is a paragraph in the report 22826  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  THE  MR.  THE  MR.  THE  MR.  THE  MS.  THE  MS.  that -- and it comes out of that report and my friend  is saying okay, that one's in, but if there's anything  else in this report that's in the reference that  relates to the -- and supports the opinion, you can't  rely on it, then I'm -- I say well, my friend is  wrong, and if he had some way that he wanted to keep  it out he should have cross-examined on it.  Having  said that, it seems to me to be without question that  these references in their entirety are always subject  to the issue of relevance generally.  If one tried to  take something out of them that hadn't been referred  to and nobody had ever heard of before and argued with  it, you'd run into a heck of an argument that it was  irrelevant and hadn't been dealt with.  Well, Mr. Grant, I've noted your objection.  I'm not  going to trouble myself with this until I find some  reason to do so.  If it forms any part of your  friend's submission then you can raise it again.  I  have a feeling these things will all dissipate.  I just wanted to note the reference, and I don't  think --  It's noted.  Thank you.  That those are the ones I have concern with.  Number 12 --  With respect to the three volumes, 1216 B, C, and  D —  COURT:  Oh, yes.  GRANT:  -- that are the fishery reports, I've already  advised my friends of my concerns relating to  Turnbull, and my friends and I can correspond and  correct that with respect to those and any others that  are of significance and minor irrelevancies, and one  paragraph of the report I'm not worried about.  So  subject to those qualifications I don't object to them  being marked as they have been.  COURT:  Thank you.  Koenigsberg.  KOENIGSBERG: My lord, I'm going to tender some maps and  documents which have been referred to broadly as this  is part of the federal alienations project.  The first  one is the reserves.  COURT:  You say reserve or reserves.  KOENIGSBERG:  Reserves, my lord.  There is a map depicting  the location of the reserves within the claim area and  there is a booklet -- that map is called map 29 and  there is a booklet that goes along with that which  sets out the basis for the mapping and describes the  supporting documentation, and that booklet is entitled  COURT  GRANT  COURT  GRANT 22827  Proceedings  1 "Canada Lands Within the Gitksan Wet'suwet'en Land  2 Claim Area".  3 THE COURT:  When you say "supporting documents", you mean Orders  4 in Council establishing the reserves or that sort of  5 thing?  6 MS. KOENIGSBERG:  Yes, my lord.  7 THE COURT:  Yes.  8 MS. KOENIGSBERG:  The supporting documentation takes two forms.  9 The first is a volume, there are four volumes  10 actually, and they are the title documents.  They  11 contain descriptions, Orders in Council, and  12 certificates of title, and the surveys.  13 THE COURT:  Descriptions, OIC's, COT's.  All right.  14 MS. KOENIGSBERG:  As well as survey records.  15 THE COURT:  That's in the four volumes.  16 MS. KOENIGSBERG:  Yes.  17 THE COURT:  Is there no agreement on something as  18 straightforward as reserves?  19 MS. KOENIGSBERG:  Unfortunately not, my lord, but my friend has  20 now agreed that these can go in without my arguing  21 that they are a combination of things including public  22 documents, registry documents.  23 THE COURT:  I'm just thinking of the poor judges of the Supreme  24 Court of Canada when they come to this are they going  25 to have to look through these documents to see where  26 the reserves are.  27 MS. KOENIGSBERG:  Well, I unfortunately, my lord, until  28 extremely recently we didn't have any agreement, and  29 so we have assembled all of this material, and my  30 friend now says it can go in.  He has -- I don't know  31 if he has any -- he has a problem with something which  32 is on the map, and in fact I now realize, having had  33 this problem raised with me for the first time at the  34 break, that he has a problem with a designation which  35 was used in categorizing bands and this information  36 appears on the map and it appears in this booklet at  37 the top, and that is that it -- it characterizes  38 reserves as within the Gitksan-Wet'suwet'en Tribal  39 Council Association, for instance, that these bands  40 with these reserves are within that.  My friend  41 disagrees with that designation.  I'm not seeking to  42 prove that designation, and I undertake to remove that  43 designation from the map and from this booklet.  And I  44 certainly take this opportunity to say on the record  45 that we are not seeking to prove the association,  46 through this means in any event, of the bands and to  47 tribal councils. 2282?  Proceedings  1 Now, having said that, we have a lot of documents  2 which I believe -- which I would like to tender, and  3 so there are four volumes as described including --  4 basically they are the title documents in a variety of  5 guises, but including survey plans.  6 THE COURT:  All right.  Well, then should they be a separate  7 number or have you a numbering sequence?  8 MS. KOENIGSBERG:  No, I don't.  9 MR. GRANT:  Maybe I can speak to this, my lord, before numbers  10 are designated, and deal just with the concerns I have  11 and the concerns I don't have.  There's two primary  12 points with respect to what my friend has called the  13 federal presence, it's nothing different than the  14 provincial alienation, so I've referred to it several  15 times as the alienation of the federal crown.  But  16 with respect to the reserves, there are two concerns  17 that I have, and it's my submission that the map of  18 the reserves, subject to certain conditions that my  19 friend and I have agreed to, should go in, showing  20 where those reserves are located.  21 And the two conditions are quite simply this:  22 Number one, the colour code will be deleted from the  23 legend.  My friend says that it's very problematic for  24 her to delete colouration from the map itself, and I  25 don't require that, but the legend that talks about  26 what the colour code is will be deleted from the  27 exhibit, and the other is that I have a concern and I  28 had anticipated that my friend would be tendering a  29 witness.  We had asked about a witness to prove these  30 because we wished to cross-examine a witness and there  31 is a witness who did the mapping and we're going to  32 reserve on whether we do that out of court or not.  33 We're going to try to cut down on all of that, but the  34 other concern is a review of that map and the  35 creation, I think this is Mr. Buxton, if I remember  36 rightly, the creation of the -- that the map itself  37 may not reflect all of the reserves because of the  38 history of it, and that's something that I am  39 considering with respect to other evidence, but it's  40 not something that is straightforward because it's  41 something that entails a review of documents other  42 than these.  But with respect to the reserve, the  43 reserves, the locations of these reserves and the  44 names of these reserves at the places where they are  45 set out as shown on the map, the map as far as we're  46 concerned can go in.  If my friend wishes to tender  47 the other documents which are the reserve -- in this 22829  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  case they are the reserve general abstracts which are  an index from the department of these reserves.  I'm  not going to object to that.  But the issue of these  reserve maps is an issue that we don't see any -- we  don't take issue with.  The issue relating to the  alienations, my lord, and relating to the federal  alienations, and I've raised this with my friends  continually, is an issue of relevance and that doesn't  apply to the reserves.  The issue with the reserve map  is a question of a couple of reserves or locations  described as reserves in evidence in this case which  are not depicted there and whether or not those are  reserves is an outstanding issue.  Quite frankly, my  lord, I haven't made it a high priority because I  don't think that this case will turn on whether there  is one or two other reserves.  That's why I haven't  made it a high priority, but as far as I'm concerned  the map can go in.  Can we mark the map as the first exhibit?  Yes.  Or the next one rather.  THE REGISTRAR: 1219, my lord.  THE COURT:  1219.  All right.  (EXHIBIT 1219: Map 29, Reserves in the claim area)  MR. GRANT:  Subject to my friend removing the legend, which  she's agreed.  THE COURT:  All right.  All right.  MS. KOENIGSBERG:  My lord, for the record if nothing else I'm  going to have to say that two and a half years ago  when we delivered these maps and this back-up booklet  we asked for an admission that would have precluded us  spending I don't know how many dollars of the  taxpayers' money in assembling this material to prove  it and I got an admission I think today or yesterday.  THE COURT:  All right.  So four volumes will be 1220 A, B, C and  D.  MS. KOENIGSBERG:  Yes, that's the title documents.  THE COURT:  1220 A, B, C, and D is that the map?  MS. KOENIGSBERG:  Yes, my lord.  THE COURT  MR. GRANT  THE COURT  (EXHIBIT 1220-A  (EXHIBIT 1220-B  (EXHIBIT 1220-C  (EXHIBIT 1220-D  Title documents - Vol. 1)  Title documents - Vol. 2)  Title documents - Vol. 3)  Title documents - Vol. 4) 22830  Proceedings  1 THE COURT:  Can I just have a look at it for a minute?  I'm not  2 sure I understand what you mean by the colour code.  3 It would be better if I see it now.  4 MS. KOENIGSBERG: The colour coding puts the reserves, which are  5 of course reserves of specific bands, within a Tribal  6 Council Association and my friend says that it may not  7 be accurate.  8 THE COURT:  Yes.  All right.  9 MS. KOENIGSBERG:  And we certainly weren't thinking of proving  10 it.  11 THE COURT:  So the legend is going to come out.  12 MS. KOENIGSBERG:  Yes.  We will remove the legend, but we've  13 agreed it's not necessary to recopy this.  14 MR. PLANT: Please don't remove all the legend, please remove  15 only the colour-coding aspect of the legend because  16 there is more to the legend than that.  There is a  17 description of a box and a point.  18 THE COURT:  Yes, all right.  19 MS. KOENIGSBERG: Yes, only the coloured coding.  20 MR. GRANT: Yes, the material below the box and the point will be  21 removed.  22 MR. PLANT:  I was not party to that agreement.  23 THE COURT:  So a reserve is shown on the map either in metes and  24 bounds lines or by a circle --  25 MS. KOENIGSBERG:  Yes.  26 THE COURT:  -- or perhaps in some cases a dot.  I don't see a  27 dot.  The legend has a solid dot, whereas the map  28 seems to show small circles.  Maybe some were small  29 enough to be a dot.  30 MS. KOENIGSBERG:  Yes.  There are many many small ones.  31 THE COURT:  Are there?  32 MR. GRANT: It appears that all these small ones are circles  33 actually.  34 THE COURT:  Yes.  All right.  35 MS. KOENIGSBERG:  There are many on the bottom.  3 6 THE COURT:  Thank you.  37 MS. KOENIGSBERG:  The second part of the documents —  38 MR. GRANT:  Sorry, what's the exhibit, is it part of it?  39 MS. KOENIGSBERG:  1220 A, B, C, D.  The second part are the  40 reserve general abstracts.  There's just one volume of  41 that.  42 THE COURT:  What's a reserve general abstract.  43 MS. KOENIGSBERG:  It's the document which is kept in the — I've  44 forgotten the name of it, but it's the registry for  45 title documents and it sets out essentially the  46 history of the creation of the reserve and what's  47 happened to it, so it will show that a reserve was 22831  Proceedings  1 allotted by Commissioner Vowell at such-and-such a  2 date, the date of the survey, and so on.  It's like a  3 title abstract document, my lord.  4 THE COURT:  Title abstract in the office of the Department of  5 Indian Affairs isn't it?  6 MS. KOENIGSBERG:  Yes.  It's called the Reserve General  7 Register.  8 THE COURT:  General register, not abstract.  9 MS. KOENIGSBERG:  Yes, my lord.  The document itself, I'm sorry,  10 is like an abstract.  11 THE COURT:  All right.  All right.  That will be 1221.  12 THE REGISTRAR: Yes.  13  14 (EXHIBIT 1221: The Reserve General Abstract)  15  16 THE COURT:  And that's just one volume.  17 THE REGISTRAR: Yes, my lord.  18 MS. KOENIGSBERG:  And I'm not going to tender the booklets which  19 describe this material at this time because I will --  20 they are easier to alter and remove the Tribal Council  21 Association designation and then I would like to  22 tender them because they are a very convenient  23 description of the information that supports the map.  24 THE COURT:  And there's how many?  25 MS. KOENIGSBERG:  There is one.  It's a booklet.  It's called  26 "Canada Lands Within the Gitksan-Wet'suwet'en Land  27 Claim Area", map 29, and it has four tabs, and I would  28 like to reserve a number for it and then we will --  2 9 THE COURT:  All right.  30 MS. KOENIGSBERG:  — re-submit it.  31 THE COURT:  How would you describe it, booklet —  32 MS. KOENIGSBERG:  Booklet described — called "Canada Lands  33 Within the Gitksan-Wet'suwet'en Land Claim Area".  34 THE COURT:  Oh, I'm sorry, you've already described that.  35 MS. KOENIGSBERG:  Yes, map 29.  Perhaps I should hand it up.  36 THE COURT:  I have the title Canada Lands — oh, no, I don't  37 have the title of it, so yes, all right.  All right.  38 So the booklet we can reserve a number for as 1222.  39 THE REGISTRAR: Yes, my lord.  40  41 (EXHIBIT 1222: Reserved)  42  43 MS. KOENIGSBERG:  Yes.  44 THE COURT: All right. Thank you.  You want it back?  45 MS. KOENIGSBERG:  Yes, my lord.  The second assembly of  4 6 documentation has to do with a map called map 5 and it  47 depicts the railway, CNR, and Grand Trunk Pacific 22832  Proceedings  1 Railway.  2 THE COURT:  Is it Grand Trunk Pacific Railway or Grand Trunk?  3 MS. KOENIGSBERG:  It says Grand Trunk Pacific Railway, my lord.  4 THE COURT:  All right.  5 MS. KOENIGSBERG:  And I would tender the map first of all.  6 THE REGISTRAR: 1223.  7 THE COURT:  Mr. Grant.  8 MR. GRANT:  Yes, maybe I can speak to that, my lord.  The issue  9 here which I have -- my friend is -- knows and has  10 known all along I believe, or for a long time, is an  11 issue with respect to relevance.  We don't dispute the  12 issue of a map of the railway, but the issue is in  13 light of the pleadings of the federal crown and in  14 light of your ruling of February 12th, 1988, that that  15 is -- that this body, this map and the body of  16 material, is not relevant.  And I just would like to  17 take you through -- I have at tab 1 the pleadings and  18 I have in mind, and Mr. Guenther will deal in due  19 course with the issue of the federal crown relying on  20 the provincial pleadings, but of course we were  21 constrained in our particular demands or anything to  22 the federal crown to deal with their simple denials in  23 their statement of defence on our reading of it  24 because that's what they raised as the issues for the  25 federal crown.  26 Now, on February 12th, 1988 -- that's at tab 1, my  27 lord, is the pleadings which is purely denials.  28 There's no affirmative claim that the creation or  29 development of the railway somehow extinguished or  30 restricted the plaintiffs' claim to title.  Now, on  31 February 12th, 1988, of course a number of these  32 issues were canvassed.  33 And at tab 2 I've put an extract in with the  34 submission that I have made and I refer you to it at  35 page 3430, which I summarize the three issues as a  36 result of an objection by Mr. Plant to questions by  37 Miss Mandell relating to the CNR.  And at line 19 on  38 February 12th, my lord, page 3430, I said:  39  40 "The second issue is the claims against the  41 Federal Crown, and the third is the plaintiff's  42 claim in the pleadings for ownership and  43 jurisdiction over the territory."  44  45 I then made a submission, and I've -- on the next  46 page and then going over to page 3437, which is two  47 pages over, I deal with the issue of the CN at line 22833  Proceedings  1 30.  2  3 "Now, similarily, my lord, if the conduct of  4 third parties such as CN, which the court has  5 heard evidence of its destruction of beaver  6 habitat and we'll hear evidence that it has  7 destroyed fishing sites and villages, impairs  8 the chief's ability to exercise authority  9 over..."  10  11 You have it, my lord?  12 THE COURT:  Yes.  13 MR. GRANT:  14 "...over those portions of their territory,  15 this is equally relevant in response to the  16 defences raised in terms of the fact that the  17 plaintiffs no longer exercise authority over  18 the territory or jurisdiction.  Now -- and it  19 is in that context, my lord, of that conduct  20 and that destruction of the plaintiff's ability  21 to exercise authority that one must take into  22 account as an example of another whole body  23 that is being raised by the Federal Crown and  24 that is the hereditary chiefs go to the coast  25 and fish commercially "  26 Now, my lord, taken in isolation this  27 evidence may suggest that the chiefs have left  28 their territory..."  29  30 And I deal with that issue.  But then I go on on  31 line 25 of 3438 to say:  32  33 "That -- when I say subsequent conduct, that --  34 I mean the subsequent conduct of third parties  35 after they are issued the papers, the  36 documents, the leases, the licences, the  37 permits, the title deeds from the Provincial or  38 the Federal Defendant."  39  40 This is at line 25 on page 3438.  41 THE COURT:  Yes.  42 MR. GRANT:  Thank you, my lord.  And going on to page 3439 I say  43 now at line 17:  44  45 "Now, those are my submissions with respect to  4 6 that..."  47 22834  Proceedings  1 This was dealing with TFL's.  2  3 "...and I'd like to move into the claims against  4 the Federal Crown because it ties in directly  5 with what I've just submitted to the court.  6 My lord, as you may recall the plaintiffs  7 did not start this court case against the  8 Federal Crown.  The Province applied over the  9 plaintiff's objection and the Province's -- and  10 the Federal Crown's objection to them being  11 joined as a party.  That went to the Court of  12 Appeal,"  13  14 And I summarized those facts.  15 Now -- and then going to line 28, my lord.  16  17 "And given what I have just said, before going  18 to Mr. Justice Trainor's point, is that no  19 matter what our interest was initially..."  20  21 THE COURT:  "Intent" isn't it.  22 MR. GRANT:  What our "intent", I'm sorry.  Thank you, my lord.  23  24 "...was initially the Federal Crown is here and  25 they are to be bound by the findings of fact of  26 this court and where they have authorized the  27 conduct of third parties, and in fact required  28 third parties to do things such as destroy  29 fishing sites or villages, fishing villages,  30 which is evidence you will hear regarding CN,  31 or beaver habitat, as you've already heard,  32 that evidence is relevant."  33  34 And then I referred to the Court of Appeal  35 decision and quote from Mr. Justice Trainor.  And then  36 on page 3440 I state, "It is..."  At line 6, my lord:  37  38 "It is our submission, my lord, that the  39 plaintiff's position that the pleadings for a  40 claim of ownership and jurisdiction of the  41 territory described in schedules A and B to the  42 statement of claim includes any territory by  43 the Federal Crown without more, without further  44 amendment, and that we were forced into that  45 position at the time that the Supreme -- this  46 court, Mr. Justice Trainor of this court, and  47 the Court of Appeal upheld the fact that the 22835  Proceedings  1 Federal Crown was a party to be bound by these  2 facts."  3  4 Now, in his submission Mr. Macaulay on behalf of  5 the federal crown states at page 3018, and that's  6 going back to the February 2nd argument when it was  7 raised in the cross-examination of -- or the  8 examination of the witness, and I believe he already  9 alluded to this.  10  11 "'The plaintiffs before they lead that kind of  12 evidence...'"  13  14 And I interjected:  15  16 "I believe referring to the CN evidence...  17  18 '...ought to define in their pleadings exactly  19 in which direction they are going.  Are they  20 seeking damages on account of railway activity  21 or are they seeking a declaration the railway  22 ought not to run."  23  24 And I go on to say:  25  26 "Now, it appears from this comment that the  27 Federal Crown is unclear as to the extent and  28 the scope of the claim of the plaintiff's case.  29 In order to make this clear, we say the conduct  30 of the Federal Crown in purporting to exercise  31 authority over the territory and alienate  32 portions of the territory was unlawful and  33 contrary to the plaintiff's ownership.  And I  34 refer you to Mr. Justice Trainor's decision of  35 page 4, where he says, the second -- first full  36 paragraph after referring to the fact that the  37 defendant -- the Provincial Defendant wanted  38 the Federal Crown in at that stage for -- in  39 case of a set off in case damages were payable,  40 the Provincial Defendants said the Federal  41 Crown pays.  And the court found of course that  42 they are not -- that this court is not entitled  43 to award damages..."  44  45 And I go on to say that we're not arguing that.  That  46 this court would make an award against the federal  4 7 crown. 22836  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  THE COURT  MR. GRANT  THE COURT  MR. GRANT  Then I go on on page 3442, my lord, at line 20,  after referring to Mr. Justice Trainor's decision and  the Constitution Act.  "Now, it is in that context, my lord, that  I am saying that this re-statement of our  position and the statement of the position by  Mr. Justice Trainor and by the Court of Appeal  in upholding him clarifies that these findings  of fact, including a finding that whether it be  CN or other persons authorized by the federal  crown, it is impinged on the plaintiff's  ownership and jurisdiction, those findings of  fact would be binding on the Federal Crown. And  just as what third parties authorized by the  province have been obligated by the Province to  do is relevant, what the Federal Crown has  obligated third parties to do is equally  relevant, and I have already referred to the CN  example.  Now, it is relevant that the court  consider the conditions and obligations that  the Federal Crown has imposed on third parties  where those obligations have adverse effects  and leads to loss of the plaintiff's ability to  exercise their authority and jurisdiction over  the territory."  I concede that the court can't award damages, and  then I say at page 3443 at line 6:  "Now, therefore we submit it's -- that the issue  is clear and that evidence of conduct of third  parties, be it on the Province's hand of Mr.  Storey..."  That was a farm incident, my lord.  Page 46?  I'm sorry, 3443 .  Yes.  What line?  Line 6.  Oh, yes.  I'm sorry, my lord.  "Now, therefore we submit that it's -- that  the issue is clear and that evidence of conduct  of third parties, be it on the Province's hand  of Mr. Storey or the logging company or on the 22837  Proceedings  1 Federal hand, the CN, where it is led to  2 impingement or an inability of the plaintiffs  3 to seek ownership and to exercise their  4 ownership and jurisdiction is relevant  5 evidence.  6 My lord, those are my submissions relating  7 to the relationship of the Federal Crown.  I  8 hope that clarifies matters for Mr. Macaulay,  9 and I will leave it to him to respond."  10  11 Mr. Macaulay commences his response on the next  12 page -- well, not the next page, the next page of this  13 extract at page 3461, and on page 3462 he states near  14 the bottom around at line 34, referring to the  15 statement of claim, he says:  16  17 "In paragraph 73 they, "the plaintiffs", refer  18 to the laws of British Columbia and say they  19 are subject to reservation of aboriginal title,  20 ownership, and jurisdiction, by the Gitksan  21 chiefs and the Wet'suwet'en chiefs, and do not  22 confer any jurisdiction over the territory and  23 resources thereon and therein claimed by the  24 plaintiffs.  They refer to the laws of the  25 Province of British Columbia.  In paragraph 75  26 they say that the defendant has wrongfully  27 alienated land and wrongfully -- it's in the  28 singular and it's quite clear that that refers  29 to the Province only.  Because in paragraph 76  30 they go on to say the defendant, in the  31 singular again, had wrongfully permitted others  32 to use the plaintiff's territory by issuing  33 grants, licences and leases.  That's clearly a  34 reference to the Province only.  And in  35 paragraph 77 they refer to the wrongful -- the  36 wrongful alienation to third parties and  37 wrongful utilization of the territory by the  38 defendant in the singular.  Paragraph 79 they  39 refer again to the defendant only, with a  40 little more precision, it's referred to as the  41 defendant Province.  And the prayer for relief  42 of course is -- arises out of those  43 allegations."  44  45 At the bottom of that page he says at line 39,  46 relating to a -- the fisheries treaty says:  47 2283?  Proceedings  1 "And now, having said that, we received a  2 report, that's the Morrell report, fisheries  3 report, in which it was obvious the question of  4 the limits on the Federal Crown's power to  5 regulate fisheries was likely to be raised and  6 indeed that issue was -- has been raised in  7 other cases like the Sparrow case, limits on  8 the constitutional power of the Federal Crown.  9 That's a very different question from the  10 question whether or not Canada has any  11 jurisdiction at all on those pleadings.  And  12 having read Mr. Morrell's report, a report, an  13 expert's report was prepared covering the  14 fisheries. And now we hear today for the first  15 time that the railway, which finds its -- is  16 operating under the provision of the Railway  17 Act of Canada, and under -- and is governed by  18 Federal agency, and indeed owned by the Crown,  19 the Federal Crown, is supposed to have  20 destroyed villages.  Now, I had never heard  21 that and I had never seen that in any report,  22 any of the many reports, the plaintiffs have  23 filed.  But obviously we will have to look into  24 that and we will -- may seek leave of the court  25 to file another expert's report covering  26 important matters of that kind, that is the  27 development of the railway during almost all of  28 the present century.  That's the difficulty  29 that arises out of having pleadings cast in  30 this form.  31 We now have a clear statement from counsel  32 for the plaintiffs, as I understand his  33 statement is that every -- every aspect of  34 Canada's jurisdiction is challenged.  That is,  35 that I take it that the doctrine of  36 paramountcy, at the very least the doctrine of  37 paramountcy is going to be invoked against the  38 Federal as well as against the Provincial Crown  39 and that important matter ought to be raised in  40 the pleadings so that it's an issue in the  41 pleadings.  This isn't -- this isn't -- you  42 can't characterize that kind of an issue as a  43 sub issue of a greater or more important issue  44 that's clearly been raised in the pleadings."  45  46 And I say of course that's something we have to  47 say regarding the federal pleadings, but as an aside 22839  Proceedings  when they raise some of these issues, but:  "Far from raising these issues, the statement of  claim as it's presently cast not only suggests,  it takes the position that it's only the  Provincial Crown's jurisdiction and laws that  are imputed..."  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:  I think that means impugned.  MR. GRANT:  Yes, I would say so too.  " a broad and comprehensive manner.  So  that now that I think we know where we stand  and we do now, I submit that the plaintiffs  should be required to amend their pleadings  accordingly."  And you have a discussion with Mr. Macaulay about  paramountcy.  And then on page 3465, at line 17, he  says :  "Well, it seems from what Mr. Grant has said  today that that doctrine of paramountcy is  going to be invoked as against the Federal  Crown in a -- it's impossible to tell just now  whether it's in every respect or whether it  affects the right and obligation of Canada to  defend the country or whether it challenges the  right of the Federal Crown to administer Indian  reserves or exactly where the doctrine is being  invoked."  You have it, my lord?  Yes.  THE COURT:  MR. GRANT:  "And those matters ought to be pleaded with some  particularity.  As I say, it's certainly not to  be pleaded as the issue is pleaded as against  the Province.  It should say that section 69  should now read, 'those rights are paramount to  enactments past and present of Canada and the  Province of British Columbia' to conform with  what Mr. Grant has told us and that would raise  the issue and would make relevant perhaps  another, God forbid, but another archive of  documents.  The last hundred years of the 22840  Proceedings  1 history of the railroad.  2 THE COURT: Well, we don't want that, do we?  3 MR. MACAULAY: It's not what we want, it's what we  4 have to look at.  The specific statements were  5 made about the destruction of villages, for  6 instance.  Well, I don't know if the witness is  7 going to give viva voce evidence about that.  I  8 kind of doubt it.  9 THE COURT: I thought we were talking about the  10 destruction of beaver habitat."  11  12 And then the court, and Mr. Macaulay says at the  13 top:  14  15 "Still, whether it's beaver villages we are  16 talking about or whatever, we will have to  17 consider what steps we take to meet that case.  18 The Indian -- we have enough documents dealing  19 with the administration of dealings with the  20 administration of the reservation.  We have to  21 look through the archives to see if there are  22 more, but first there should be an amendment."  23  24 And your lordship then says "Thank you, Mr.  25 Macaulay.", and allowed me to respond.  26 Now, on page 3467 -- and your lordship and I had  27 an exchange relating to this.  On page 3467 your  28 lordship states at line 24:  29  30 "But are you saying that your claim is such that  31 if you are successful you would have ownership  32 and jurisdiction over on the CNR right-of-way  33 and over the airport?  34 MR. GRANT:  The claim is for ownership and  35 jurisdiction over the territory, yes, and that  36 includes that.  And my friend refers to -- "  37  38 And you interject, your lordship interjected:  39  40 "Well, should that not be pleaded then?"  41  42 And I -- I go on and quote from Mr. Trainor.  And  43 then your lordship points out:  44  45 "But you see, at that time those learned judges  46 didn't have your amended pleadings before them.  47 They didn't know." 22841  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  THE COURT  MR. GRANT  And then on page 3468 and 3469 I submit is the  ruling which all counsel have relied on since then.  At line 26 your lordship said.  "Well, shouldn't you at least add..."  I'm sorry, where are you?  3468?  Line 26, my lord.  Yes, thank you.  "Well, shouldn't you at least add the Federal  Attorney General to paragraph 69?  MR. GRANT:  I'm sorry, 69?  THE COURT: Where you claimed paramountcy for your  rights and protections against the province,  and if you did that, then your friend might  have asked for some particulars of which  Federal laws you say are subject to the  paramountcy rule as we are using it, and there  would at least be shared understandings in that  regard.  You come close to pretzelling  ourselves ..."  THE COURT:  "Postulizing".  Oh, no, I'm sorry, it may have been  pretzelling.  I think it is pretzelling.  MR. GRANT:  " some of those problems, but I would not  read your statement of claim at the moment to  challenge the Federal presence.  Now that may  be -- that may be very general, and I'd have to  read the statement of claim carefully in the  light of the arguments I have heard today, but  I have not read the statement of claim as  challenging such things as airports and  railways.  No doubt there are other items of  Federal presence that might fall in the same  classification."  My comment is:  "Well, I take your point, and I would like to  consider your point about amendment." 22842  Proceedings  1 And then I make a comment on the CNR relating to the  2 province, and then the court says on line -- your  3 lordship stated on line 34, 3469:  4  5 "In view of the absence of Canada from paragraph  6 69, if I were giving judgment in your favour  7 today for ownership and jurisdiction, I would  8 feel constrained to qualify that by excluding  9 such things as the airport and the railroad --  10 railway, and I don't know what else.  I take it  11 from hearsay that what you think -- that you  12 would think that I shouldn't pose that  13 limitation or that qualification."  14  15 And I state:  16  17 "No.  What I meant, my lord, is -- I have your  18 point about the amendments and I understand  19 that, but what I am saying is, okay, that's one  20 part of it.  What I am saying is it's quite  21 proper for us to say that what has CN done, not  22 to seek a declaration of entitlement of loss  23 against the Federal Crown but to show how CN,  24 how the Federal Crown where it -- where CN has  25 done it under the direction and authority of  2 6 the Federal Crown, where the Federal Crown has  27 impaired the plaintiffs' ability.  But at the  28 end of the day that may not mean there is a  29 declaration against that, but only a finding  30 that the plaintiffs have have been impaired and  31 I -- all I'm speaking to there is the  32 relevance of that evidence.  Now, I'd like to  33 go back to Mr. Goldie's comments."  34  35 Now, that's the explaining with respect to that  36 issue.  And over one year later --  I think, Mr. Grant, if you don't mind we'll --  Yes, I didn't realize the time.  We'll resume this at two o'clock.  Thank you, my lord.  41 THE REGISTRAR: Order in court.  Court stands adjourned until two  42 o'clock.  37 THE COURT  3 8 MR. GRANT  3 9 THE COURT  4 0 MR. GRANT  43  44  45  46  47 22843  Proceedings  1  2 (PROCEEDINGS ADJOURNED FOR LUNCH RECESS)  3  4 I hereby certify the foregoing to  5 be a true and accurate transcript  6 of the proceedings herein to the  7 best of my skill and ability.  8  9  10 Tanita S. French  11 Official Reporter  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 22844  Submissions by Mr. Grant  1 (PROCEEDINGS RESUMED AT 2:00 p.m.)  2  3 THE REGISTRAR:  Order in court.  4 MR. GRANT:  Thank you, my lord.  Before I proceed, I had asked  5 madam registrar formally, I am asking the court to be  6 able to remove Exhibits 999 through Exhibit 1009 for  7 the purpose of copying.  Those are maps of Mr.  8 Sterritt.  Mr. Rush had requested earlier at the time  9 they were tendered, so I am just asking for leave to  10 remove those exhibits so copies can be made for the  11 plaintiffs.  12 THE COURT:  All right.  I am sure there is no difficulty there.  13 MS. KOENIGSBERG:  Not here.  14 MR. GRANT:  Now, where I left off of course was at the end of  15 the February 12 of '88 event and ruling and where  16 things stood at that point, my lord, was that I had  17 argued relevance of C.N., of the railway, and your  18 lordship rejected that argument.  Mr. Macaulay argued  19 against its relevance and your lordship rejected my  20 argument of relevance unless the plaintiffs amended  21 and that --  22 THE COURT:  Well, I am sorry, is that what I said or did I say  23 that while there was no claim for this without the  24 amendment, and although this may not have been  25 mentioned, and I now enjoin the benefit of hindsight,  26 was it not at least left open that if the Federal  27 undertakings were to be exempt that proof could be  28 given as to what they were?  Otherwise there would be  29 no way of framing in effect of the order.  30 MR. PLANT:  There is one point which I must apologize for the  31 interruption, my lord, but my friend Mr. Grant has  32 made reference to a ruling, your lordship doesn't have  33 that ruling before you.  Mr. Grant has not actually  34 referred to the ruling.  35 THE COURT:  I gave some reasons I think.  36 MR. PLANT:  Your lordship gave reasons and it is important in  37 this context that your lordship pay perhaps a bit more  38 attention to what you said rather than what Mr. Grant  39 said.  40 THE COURT:  I think actually —  41 MR. PLANT:  I am more concerned with the ruling that your  42 lordship actually gave in this context.  43 THE COURT:  All right.  Well, anyway, this problem is rattling  44 around in my head at the moment, Mr. Grant, and you're  45 as entitled to know about it as I am.  46 MR. GRANT:  Yes, and that's quite correct.  You did give  47 reasons, I believe my friend has these reasons, on 22845  Submissions 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  THE COURT  MR. GRANT  THE COURT  MR. GRANT  the -- subsequently dealing with the nature of the  claim.  What's the date of those claims?  February 18, 1988.  So they are responsive to this discussion that you  have been reading from?  :  Yes.  And some of those questions were resolved in  court.  What you stated on the first page, some of  these questions were resolved in court but I reserved  on a number of matters, you dealt with objections to  some evidence of law and you go on -- and you go on to  "The Nature of the Plaintiffs' claim", and then you  state that, on page 7 of your reasons:  "But I agree with Mr. Macaulay that the  Statement of Claim does not sufficiently allege  the 'paramountcy' of the plaintiffs' alleged  rights over federal legislation such as that  relating to fisheries and transportation.  I do  not think, in the present state of the  pleadings, that the plaintiffs, even if  entirely successful against the Province, would  be entitled to a Judgment that would not be  subject to federal legislation relating to such  matters as fisheries, railways, airports and  other activities authorized by the federal  legislation."  Now, the point with respect to this, my lord, is that  the plaintiffs were invited by your lordship at that  time with respect to any claims against the Federal  Crown to amend.  Now, the issue here is that the  Federal Crown, my lord, has basically -- and this --  you alluded to this the other day when you raised the  issue and Ms. Koenigsberg said, well, we denied  ownership and jurisdiction and then we can do whatever  we want to show where we are.  But where that is --  the Federal Crown is in the territory but with respect  first of all, paragraph -- and I am speaking from  memory, I don't have it right in front of me, I think  it is paragraph 79 of the defence, is an express  exclusion of a claim with respect to fee simple owned  lands.  And the issue there is it's not an issue that  has to be dealt with as to which those lands are.  If  that's what my friend is trying to establish, then I  don't think that's necessary because those are  expressly excluded and the Land Title documents speak 22846  Submissions 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  MS.  MR.  PLANT:  THE  MR.  MR.  COURT  GRANT  PLANT  MR. GRANT  MS.  THE  MS.  for themselves on that issue and there's no dispute  about what those lands are.  But with respect to the  issue of federal jurisdiction, well, there is no  dispute, Mr. Plant --  KOENIGSBERG:  I would have liked to have had that admission  at the beginning.  Because, my lord, we went through the admission of  map 12, map this and map that, for months and months  and years and years and my friend saying there is no  dispute about it.  I am grateful I have my friend's  admission on behalf of the plaintiffs as to that issue  admittedly at this late date.  What is the admission?  My lord —  If it is in the Land Title office it is land owned  by the -- held by third parties in fee simple and  that's the end of any inquiries to -- or worry about  what those lands are.  That's if it's in -- if my friend says it's in the  Land Title office, I don't know what he means by that.  That's not what I was referring to.  What I am saying  is, my lord, is this, is that we are -- we are now in  the Federal Crown's case.  The Federal Crown has  merely denied -- we -- the Federal Crown has denied  the plaintiffs have ownership and jurisdiction.  Now  they are saying, well, it's very important to show  where the Federal presence is.  There is no claim in  this case against the Federal Crown.  Yes, but there is a claim for ownership and  jurisdiction of this vast area and the Federal Crown,  it seems to me, is now saying at least this much, that  while this Crown denies your claim to ownership and  jurisdiction, this Crown says further that if you are  right in your claim against the Province, you are not  right in your claim with respect to these specific  lands.  But the Federal Crown has never pled that they -- an  affirmative alternative, and now my friend says, well,  of course you can amend to match the evidence.  Now, I  agree that's something that always is open for the  court and I agree but --  KOENIGSBERG:  I think I might be able to help my friend with  the pleading that at least we had overlooked until  last night when we went back and read the whole thing  over again and just in case my friend --  COURT:  I am sorry you had to experience that.  KOENIGSBERG:  Well, illuminating.  My friend pleaded in  THE COURT  MR. GRANT 22847  Submissions by Mr. Grant  1 paragraph 74 and 74(a) of the Statement of Claim as  2 follows:  3  4 "In addition as aforesaid the aboriginal title  5 jurisdiction and ownership of the plaintiffs  6 has not been and cannot be extinguished or  7 diminished without their consent;  8 74(a), Further or in the alternative no notice  9 thereof was ever given by the Imperial, Federal  10 or Provincial Crown or any person on behalf of  11 any Crown to plaintiffs or their ancestors that  12 the aboriginal title, jurisdiction, ownership  13 of the plaintiffs had been extinguished or  14 reduced by the Crown."  15  16 The Federal Defendant specifically denied those  17 particular pleadings in paragraphs 21 and 22 of the  18 Statement of Defence.  We have clearly joined issues  19 with my friend on the issue of extinguishment and  2 0 diminishment by the Crown.  21 THE COURT:  Well, as I see the situation at the moment, I think  22 that it's fair to say that I would be more comfortable  23 if the precise nature of the claims of the defences or  24 exemptions were more -- were less cryptically  25 described, that I don't think having regard to the  26 course of the trial that there is much doubt that the  27 Indians -- the Indian plaintiffs claim ownership and  28 jurisdiction with everything within the black lines  2 9 and the Federal Government says or the Federal Crown  30 says we don't agree with that but we do say that if  31 you are right, you don't have a claim in this action,  32 you have made no claim in this action for a title to  33 our lands and on Mr. Macaulay's opening I think that's  34 limited to airports and railways, and I would be  35 disposed to allow them to prove what their lands are  36 so that if you succeed, Mr. Grant, in your claim  37 against the Province it will be possible to delineate  38 those lands with respect to which you are not entitled  39 to succeed, being those railways and airports I just  40 mentioned.  Is anything more difficult than that?  41 MR. GRANT:  Well, the difficulty is this:  Between the Province  42 and the Plaintiffs throughout there has been demands  43 and replies to demands for particulars which are in  44 the May 1987 trial record and are reflected, and  45 subsequent to that and the Federal Crown with all due  46 respect has I say in some major way for -- since  47 February 12, 1988, if not before, since your ruling at 22848  Submissions by Mr. Grant  1 that time, and Mr. — in March of '89, Mr. Macaulay  2 reiterates how he has relied on that ruling, not to  3 probe into and go into this area, they have lain in  4 the weeds until the beginning of their opening and, as  5 Mr. Plant said in their opening, for the first time  6 the plaintiffs and the Federal defendants had some  7 sense of what they were doing.  We had no indication  8 that they were relying on extinguishment, no  9 indication of acquiescence to the extent that this  10 material and this evidence is to be utilized.  For  11 that I say that that's not appropriate.  For the  12 purpose for which your lordship is going to say, well,  13 if I make a ruling in favour of the plaintiffs I would  14 like to be able to say this land that is -- which is  15 in the name of the Federal Crown is not affected.  16 THE COURT:  For which -- as I see it no claim has been made by  17 the plaintiffs.  18 MR. GRANT:  The plaintiffs have not — you directed that I would  19 have to amend and no amendment to that effect has been  20 made.  The plaintiffs did not sue the provincial --  21 the Federal Crown and has never -- the plaintiffs have  22 never sued the Federal Crown in this case.  And the  23 Federal Crown now to say, oh, look at 74 and 74(a).  24 With all due respect they are endeavouring to match  25 up, and the very argument of course that was made, the  26 very argument that was made in February 12 of '88 by  27 Mr. Macaulay that the plaintiffs should be express,  28 the plaintiffs of course didn't ask the Federal  29 Defendant to be express because we thought it was  30 merely a denial issue.  We find out now on I think day  31 299.  32 THE COURT:  No, we are beyond that now.  33 MS. KOENIGSBERG:  302.  34 MR. GRANT:  Day 302 in fact.  No, I meant the day Mr. Macaulay  35 spoke --  3 6 THE COURT:  Yes.  37 MR. GRANT:  -- that there is relevance, so if these maps are  38 going in solely for the purpose of showing where there  39 is a federal land which is not affected by the  40 plaintiffs' claim, that is -- I see no difficulty with  41 that.  But I do not accept that they should go in for  42 the purposes of foundation for extinguishment or  43 abandonment, or diminishment or anything else because  44 throughout the pleadings there has never been an  45 expressed claim against the Federal Crown or Federal  4 6 Crown lands.  47 THE COURT:  Well, I'm not sure.  Ms. Koenigsberg, you can tell 22849  Submissions by Ms. Koenigsberg  1 me whether you are claiming -- you want the use of  2 spreading greater purpose in that or not?  3 MS. KOENIGSBERG:  Certainly am, my lord.  4 THE COURT:  What additional purpose is it?  5 MS. KOENIGSBERG:  The first and foremost can and do go in to  6 show what is excluded from a jurisdictional point of  7 view, and in my submission all that Mr. Grant read to  8 you in your ruling and your reasons related to had the  9 plaintiffs pleaded and did they have a claim against  10 the jurisdiction of the Federal Government.  They did  11 not, they did not plead that their laws and their way  12 of life was paramount to Federal jurisdiction.  They  13 did plead that specifically against the Province.  The  14 issue, the railway is not -- this evidence is not to  15 show what the Federal jurisdiction is, although it  16 does show that.  It is to show (a) what's excluded  17 where something is owned by the Federal Government,  18 but it's there for another purpose, and that is it may  19 be evidence of acts which are of the government which  20 are inconsistent with aboriginal rights, a  21 recognition, in the sense that granting a fee simple  22 may be an extinguishment in law and if these 212 miles  23 of fee simples go into evidence as they should, they  24 are facts and they are facts of acts.  And the Federal  25 Government is as much entitled on its pleadings to  26 lead that evidence as any other party.  27 Yes, we did specifically join issue with the  28 plaintiffs on whether there had been acts of  29 extinguishment.  And, in my view, even if 74 weren't  30 in there and our response when we deny ownership and  31 jurisdiction as described we are entitled to show what  32 we would rely on to say that it isn't so that they  33 have ownership and jurisdiction in any particular  34 area.  We are dealing, in my submission, ultimately  35 with a sight specific claim that will be our argument,  36 and a sight specific extinguishment.  So in my  37 submission all of this evidence goes in one way but it  38 doesn't preclude it from being used in any other way  39 by this defendant or by the Province.  40 THE COURT:  Well, do the ordinary requirements of the pleading  41 facts not require you then to plead if you are relying  42 upon this material as evidence of extinguishment or  43 jurisdiction or the absence of jurisdiction or to  44 plead these matters specifically as the Province has  45 done?  46 MS. KOENIGSBERG:  In my submission, no.  You are not required to  47 plead them specifically, and you're at times, 22850  Submissions by Ms. Koenigsberg  1 particularly I think where in some cases activities  2 are unknown to when only within the knowledge of one  3 party or another you might fairly plead or at least  4 it's a proper request for particulars.  5 THE COURT:  There is a special rule for pleading anything that  6 might take someone by surprise.  7 MS. KOENIGSBERG:  Yes.  8 THE COURT:  And also to plead fraud and a few things like that.  9 MS. KOENIGSBERG:  But, my lord, nothing as far as I know  10 precluded my friend from asking for particulars of our  11 denial.  It's done all the time.  If they really  12 thought that they just couldn't figure out on what  13 basis we were denying this, they could have asked us  14 for particulars.  At the very least it would have  15 gotten them into court.  If we said, well, you are not  16 entitled to particulars --  17 THE COURT:  Doesn't a denial, whether it goes to the absence of  18 proof of their point rather than to the affirmative  19 proof of your own facts?  20 MR. GRANT:  We went through that at great lengths with the  21 Province and the Federal Crown was aware of that.  The  22 whole issue of denial on discovery and that -- and  23 they said it's up to you to prove it, so there was no  24 point in us pursuing particulars from our point of  25 view at that time.  26 MS. KOENIGSBERG:  I am sorry, I don't know what that was about.  27 THE COURT:  Well, I don't know — I understand the words but not  28 the turmoil.  Why don't just plead it and apply to  29 plead it, your friends might be heard to complain but  30 I suspect they are going to be applying to amend it  31 anyway.  32 MS. KOENIGSBERG:  I don't know if they are going to apply to  33 amend, my lord, and that brings up another point.  If  34 we are going to be dealing with it in that way, that  35 is, if we are going to start applying the ordinary  36 rules of pleading, then they should in my submission  37 be applied to the plaintiffs as well, and we still are  38 faced with a Statement of Claim which nowhere pleads  39 use and occupation, and your lordship issued reasons  40 and they are in the same reasons, this issue came up  41 of course in relation to the plaintiffs' pleadings in  42 which your lordship asked for clarification from Mr.  43 Grant and took some comfort in things that he said.  44 See if I can find the part, page 5 of your reasons, I  45 don't think they are yet reported, February 18, 1988:  46  47 "The Nature of the Plaintiffs' claim.  From time 22851  Submissions by Ms. Koenigsberg  1 to time I have mentioned to counsel some  2 uncertainty I have about the nature of the  3 plaintiffs' claim, particularly whether the  4 plaintiffs' claim for ownership and  5 jurisdiction over the claimed territories is an  6 all or nothing claim or whether the plaintiffs  7 are also advancing alternative or other claims  8 within the rubric of 'aboriginal rights'.  9 Mr. Grant has now made the clearest possible  10 statement that the plaintiffs' claim is for  11 aboriginal rights including ownership and  12 jurisdiction, and not ownership and  13 jurisdiction of which some aboriginal rights  14 may be incidental.  He says that the  15 plaintiffs, at the end of the trial, will be  16 requesting the Court to declare the aboriginal  17 rights to which the plaintiffs are entitled.  18 In other words, the plaintiffs' claim is not  19 limited just to ownership and jurisdiction.  20 Mr. Grant says some of aboriginal rights which  21 are open to the plaintiffs are particularized  22 in paragraph 57 of the Statement of Claim.  Mr.  23 Grant also says that the plaintiffs' claims are  24 superior to any rights enjoyed by Canada in or  25 to any of the lands within the territories."  26  27 And then we go, Mr. -- well, maybe I should read it.  28  29 "Mr. Goldie, on the other hand, says that this  30 is not a Calder type case and that both the  31 Statement of Claim and Prayer for Relief are  32 framed as claims only for ownership and  33 jurisdiction and for damages against the  34 Province for wrongful appropriation and use.  35 He says paragraph 57 is a plea in support of  36 ownership and jurisdiction and that Sections 3  37 and 6 of the Prayer for Relief indicate that  38 Calder type claims are included in but are not  39 independently asserted apart from ownership and  40 jurisdiction.  41 Mr. Macaulay says the Statement of Claim does  42 not support claims against Canada described by  43 Mr. Grant."  44  45 I pause there to remind your lordship that we are  46 talking about jurisdiction.  47 22852  Submissions by Ms. Koenigsberg  1 "He mentions particularly that paragraph 69  2 alleges paramountcy of the plaintiffs' rights  3 over past and present enactments of the  4 Province but no similar allegation is made  5 against Canada.  6 In my view it is highly doubtful if the  7 plaintiff has sufficiently pleaded Calder type  8 or other alternative claims to aboriginal  9 rights additional to the claim to ownership and  10 jurisdiction.  Such claims are pleaded, if at  11 all, obliquely such as in paragraphs 57 and 75  12 and by reference to aboriginal rights in  13 paragraph 74, 74(a) and in Prayers to Relief 6  14 and 9."  15  16 Those are the paragraphs I just read to your lordship  17 about distinguishment.  18  19 "It is not for me to suggest or require  2 0 amendments and it may be that the course of the  21 trial, including the clear statement made by  22 Mr. Grant on February 12th, 1988 will be  23 sufficient to permit the plaintiffs to assert  24 alternative claims additional to ownership and  25 jurisdiction.  I leave that question for the  26 time being to counsel."  27  28 And then you go on, and I think it's been read to you  29 that part about paramountcy.  30 My lord, the pleadings of the plaintiffs were not  31 particular in regard to the specific pleading to which  32 in our submission sight specific extinguishment  33 applies.  And we did clearly on the pleadings join  34 issue with the plaintiffs on both specifically  35 ownership and jurisdiction and on extinguishment and  36 diminishment by the Crown.  37 The second point that in my submission is of  38 concern with regard to whether something is pleaded  39 properly is whether the plaintiffs are in fact taken  40 by surprise or in some way prejudiced.  In my  41 submission, that is preposterous.  My friends have had  42 the quote unquote alienations project of the Federal  43 Government since the beginning of the trial in 1987 in  44 May.  They have had -- they have attended all  45 cross-examinations and the examinations in chief of  46 witnesses that the -- that we cross-examined  47 specifically in relation to facts elicited in support 22853  Submissions by Ms. Koenigsberg  1 of just such arguments as extinguishment and  2 abandonment, diminishment, and use and occupation, and  3 another way to put it is non-use and non-occupation.  4 My friend Mr. Grant read to your lordship this morning  5 where he understood that to be the case on February  6 12, 1988, and on page 3438, Mr. Grant says:  7  8 "My lord, the Provincial and Federal Defendant  9 allude to through paragraph 14 of the  10 Defence..."  11  12 And there I think he is referring to the Province's  13 defence:  14  15 "...and I don't specifically raise it, the issue  16 of, an issue of acquiescence or maybe even  17 abandonment by the plaintiffs, and they  18 cross-examine extensively on the plaintiff's  19 conduct regarding their territory, and if it  20 the plaintiffs that have been denied the right  21 to exercise jurisdiction because of the  22 destruction or alterations that subsequent  23 conduct in our submission is relevant."  24  25 And he goes on, he says:  26  27 "Now, my lord, regarding the question of  28 damages.  The issue of quantification is left  29 but the issue of entitlement is before the  30 Court and a measure of Wah Tah K'eghts' law  31 certainly is the extent of appropriation of his  32 territory by third party under licences or  33 leases that is under authorizations of the  34 defendants, but that is secondary in our  35 submission, my lord, to the essential point of  36 this evidence.  The conduct of third parties to  37 go to the issue of the attack on the Gitksan  38 and Wet'suwet'en way of life and their society,  39 and these consequences of why you see the  40 evidence that you see today which as I  41 understand, although not being in the court but  42 reviewing the transcripts"  43  44 ...and so on, and he is talking about licences and  45 leases and the authorization of third parties  46 operating under those permits issued by the Federal  47 and Provincial Defendants, et cetera, et cetera.  The 22854  Submissions by Ms. Koenigsberg  Ruling by the Court  1 entire argument that Mr. Grant read to you where  2 clarification was sought by the Federal Government in  3 regard to what was pleaded against us and what was not  4 was paramountcy of jurisdiction, was the jurisdiction  5 of the Federal Government under attack in this  6 lawsuit.  Your lordship ruled not on these pleadings.  7 That, in my submission, has nothing to do with the  8 issue of use and occupation and extinguishment,  9 diminishment, abandonment, or any impact on whether  10 the plaintiffs have aboriginal rights, where those  11 are, what they are, and what remains.  12 And, in my submission, there is no way my friend  13 can suggest he was taken by surprise.  He always  14 understood that that was the general position of the  15 Federal Government and that's what the evidence has  16 been led for and cross-examined on.  Those are all my  17 submissions, thank you.  18 THE COURT:  Well, I wonder if there isn't a way to deal with  19 this problem.  I suspect that we are going to have an  2 0 argument about pleadings at some time.  I'd be  21 astonished if we didn't.  In one of my less memorable  22 judgments in this case I mentioned that.  Generally  23 speaking, when judges rule on admissibility they give  24 no judicial warranty as to the purposes for which such  25 evidence may be used.  I have no doubt that the  26 Federal Crown is entitled to put in this material at  27 this stage and on the present state of the pleadings  28 for the purpose of having its lands excluded from any  29 judgment to which the plaintiffs may become entitled.  30 And I am disposed at this time merely to rule that the  31 evidence is admissible without delineating the grounds  32 upon which it may be used.  I see no point in or  33 profit in dealing with that if there may be  34 applications to amend and, therefore, it's my view  35 that I ought to merely rule the material admissible  36 without qualifying it in any way because I see no  37 reason to do so.  That's a matter of law that can be  38 determined when we get around to determining these  39 more serious and difficult questions.  Now, that's  40 what I propose to do unless somebody wants to persuade  41 me otherwise.  42 MR. GRANT:  Well, my concern, my lord, on this is that, that  43 when one looks very carefully -- when one looks at the  44 Provincial defence as if I may say here a template of  45 this, in paragraph after paragraph, the Province not  46 only says the rights of the plaintiff were  47 extinguished but they say on what basis and why -- 22855  Submissions by Mr. Grant  1 THE COURT:  Yes, but they were facing a claim that was made  2 against them.  The Federal Crown isn't facing such a  3 claim, at least I don't think it is.  4 MR. GRANT:  That's right.  Now, what happened is, is that as my  5 friend has now reiterated what I said on February 12,  6 I argued that now that the Federal Crown was in and  7 the claim wasn't limited, that it could sweep over and  8 your lordship made it clear that that just couldn't go  9 unless we amend it.  And we never sought the Federal  10 Crown to amend because what we did when we did  11 subsequent amendments is we did not join a claim  12 against the Federal Crown, and that's why I say that  13 and so there was no need for demand for particulars  14 from the Federal Crown.  We had to prove our case, we  15 had to prove those things they denied and that was the  16 end of it, but the affirmative defence of  17 extinguishment, acquiescence and diminishment, those  18 affirmative defences of the Province, we felt we  19 weren't -- the Federal Crown was just saying, you  20 better prove it, and as Mr. Macaulay said in March of  21 1989, "I am not going into any fishing licences any  22 more, there is no need to", so we both operated on  23 that basis.  And that's why I say that if the Federal  24 Crown wishes to amend at this stage to make an  25 affirmative defence, they should do so.  They should  26 make their application.  But the Federal Crown's  27 position is a little bit confused in the evidence and  28 on the pleadings, and their position in this case is  29 confused, and that's why it comes as a surprise to me  30 that the Federal Crown now -- and for the first time  31 the evidence that they were going to argue  32 extinguishment, diminishment, and acquiescence of the  33 Federal Crown was the first time we were apprised of  34 that was on Mr. Macaulay's opening three or four days  35 ago.  36 MS. KOENIGSBERG:  February of '88.  37 MR. GRANT:  And that is, I say, cannot stand and that they  38 cannot put this into -- for evidence of something that  39 they have not pled because we have had no right of  40 demand for particulars relating to extinguishment.  41 Why would we ask the particulars of extinguishment of  42 the Federal Crown when there was no pleading of it?  43 They just say we did ask that of the Province and the  44 Province and us have been exchanging particulars on  45 and off.  46 THE COURT:  That raises the question of whether the Province —  47 the Federal Crown isn't entitled to call evidence on 22856  Submissions by Mr. Grant  1 issues raised in the defence of the Province.  The  2 Province has clearly pleaded extinguishment.  What's  3 lacking is particulars rather than actual pleadings.  4 MR. GRANT:  More than that, what is —  5 THE COURT:  It may —  6 MR. GRANT:  More than that, what is lacking is what is the  7 Federal Crown relying on that the Province's defence.  8 What of those defences are they relying on?  9 THE COURT:  Well, I am not sure that one has to limit itself in  10 the defence.  I think the strongest point you have,  11 Mr. Grant, is the fact that perhaps the Federal  12 Government can't rely on extinguishment based upon  13 matters that aren't particularized anywhere which is  14 for the purpose of this case lines of rail and  15 airports.  Maybe a particular in that regard is  16 necessary but that's a minor matter really.  I don't  17 think we should be spending half a day on that.  18 MR. GRANT:  No, but, my lord, the point is this, is that it is  19 time at this stage of the trial for the Federal Crown  20 with respect to come out of the closet if they are  21 relying on these defences.  22 THE COURT:  Pardon the expression used, Mr. Grant.  23 MR. GRANT:  I am sorry.  I am sorry.  Mr. Macaulay is here, in  24 any event.  25 MS. KOENIGSBERG:  Well then you should be sorry.  26 MR. GRANT:  What I am saying with regard to their -- with regard  27 to what it is that we are facing from the Federal  28 Crown, we know what we are facing with the Province,  29 the Province knows what they are facing with us.  30 THE COURT:  Mr. Grant, you know what you're facing with the  31 Crown too.  You have been told it's airports and  32 railways, and I think you have known that since you  33 had this material two years ago.  34 MR. GRANT:  Well, no, but the material is the evidence of where  35 Federal property is, and that's not -- that's one  36 issue, but --  37 THE COURT:  Well, I'm not surprised that there may not be a  38 misunderstanding of issues between counsel from time  39 to time, it occasionally happens, and it may be that  40 you have been looking at these things through  41 different coloured glasses, but that's not unusual,  42 and I don't see that there's any great difficulty in  43 it.  The only thing that stands in the way of Ms.  44 Koenigsberg's succeeding in this issue is the  45 particular that says in addition to the other grounds  46 of for extinguishment and alleged we are also relying  47 on airports and railroads.  That would do it, wouldn't 22857  Submissions 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  THE COURT  MR. GRANT  it?  MR. GRANT:  Well, no, because I don't know which -- I don't know  which of the Province's affirmative defences the  Federal Crown is relying on.  THE COURT:  I am not sure you are entitled to that.  MR. GRANT:  Well, the Federal Crown isn't saying -- I mean, they  are not setting out -- they have said now we have had  two days ago that they are at odds with the Province  on some issue, one issue, but --  I would have thought they would be entitled to rely  upon any ground of extinguishment that arises on the  pleadings, not their pleadings, the pleadings, yours,  or the Province's, or anyone elses.  But they have never affirmatively stated any defence  and, as you raised the other day, my lord, the issue  of the fishery for example was an example where they  should have affirmatively set it out.  I mean, it --  what it goes against and we have -- we are in the  process, Mr. Guenther and myself, of reviewing the law  regarding what you have raised, and have not to this  point found a case on point about relying on, we'd  like -- we will argue that out in due course.  THE COURT: I won't be surprised if you don't find one. I don't  remember seeing one, but that's sort of what -- that's  my conception of what the practise has been.  MR. GRANT:  Yes.  It's really a practise problem.  THE COURT:  I am not sure you will find a deciding case, you  might.  There is lots of deciding cases now.  It may  be that I have spoken a little bit too generally.  It  may be that your friends would have to add to their  particular in addition to the denial they do say that  the claimed or jurisdiction entitlement is  extinguished on the grounds set out in the pleadings  to date and upon the further grounds of airports and  railroads, but it is still a very brief pleading that  would meet the requirement for having to plead every  fact upon which you relied, but it certainly is  nothing to do with the provision or the special rule  that requires special pleadings of matters that might  take the party by surprise.  I don't think we are  within smelling distance of that rule.  MR. GRANT:  No, but it's a question of raising an affirmative  defence.  If they say that we rely -- we say in the  alternative that the plaintiff's rights have been  extinguished, if the Federal Crown -- if that is their  position, then that is where I say they should come  out in the open and say it because that's certainly 2285?  Submissions 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  THE  MR.  THE  not been our understanding.  Our understanding of the  position of the Federal Crown in this case is that  there has been extinguishment of the plaintiffs'  rights.  COURT:  Well, I understand —  GRANT:  Acquiescence.  COURT:  Well, I understand Ms. Koenigsberg -- I understand  that's what they say.  MR. GRANT:  Yes, a couple of days ago we all understood that's  what they say.  But there's not -- but now, unless we  request Mr. Macaulay to particularize his opening,  there is nothing in the pleadings that we can request  particulars of the extinguishment, what are the basis  upon which they rely for extinguishment, and we'd like  to be able to get particulars of what they rely on.  And now Ms. Koenigsberg is saying, well, we are going  to rely on the railroad, and I think that we are  entitled to the particulars, and it may just be the  railroad, my lord, but if it's just the railroad, that  helps us a lot more than if it's the railroad plus a  hundred other things.  THE COURT:  Oh, well, I haven't heard of anything else and I  would certainly expect some pleadings if there was  anything beyond those obvious and notorious facts.  GRANT:  Well, that's what we would like to be able to get  particulars from my friends on regarding that area.  COURT:  Well, I am going to allow the material into evidence  because I have no doubt that it's admissible on the  ground I stated, and it may be admissible in other  grounds that I do not think it's necessary that I  specify at this time.  How would you describe your  material, Ms. Koenigsberg?  MACAULAY:  My lord, before Ms. Koenigsberg starts, I should  say that when the time comes to address in a serious  way the pleadings, I don't want my friend to think I  am lying in the weeds.  I will be referring --  COURT:  He said "lain in the weeds", Mr. Macaulay.  MACAULAY:  Lain in the weeds, lain in the weeds.  I may find  it necessary, and I hope I won't, to refer to  discussions between counsel on some of these issues,  and I think perhaps if the plaintiffs force this to  the -- to that point, then affidavit material may have  to be filed.  THE COURT:  Well, I don't think I want to hear what you are  saying, Mr. Macaulay, although I have no difficulty  with the acoustics in here.  Maybe it won't be  necessary to get to that point.  MR.  THE  MR.  THE  MR. 22859  Discussion Re:  Exhibits  1 MR. MACAULAY:  I hope not.  2 THE COURT:  All right.  Ms. Koenigsberg.  3 MS. KOENIGSBERG:  I think we were at the map.  4 THE COURT:  Yes, I have map 5 depicts tickets the railroads,  5 CNR, and Grand Trunk Pacific, and that's as far as you  6 got before Mr. Grant rose to object.  7 MS. KOENIGSBERG:  Yes, and it's called map 5.  8 THE COURT:  Yes, that's that — no, I am sorry, I actually  9 haven't seen it yet, have I?  10 MS. KOENIGSBERG:  Yes, my lord, it's right here.  11 THE COURT:  Perhaps I can look at it.  It's the blue line, is  12 it?  13 MS. KOENIGSBERG:  Yes.  14 MR. PLANT:  My lord, if I might just assist your lordship in one  15 minor respect here --  16 MS. KOENIGSBERG:  I was just getting to that.  17 MR. PLANT:  The blue line here which depicts the CNR is just a  18 coloured-in line of a line that appears on all of the  19 Provincial alienation maps.  For that matter, the  20 railway appears on most of my friends, counsel for the  21 plaintiffs', maps, not exactly sure what all the fuss  22 has been about this afternoon.  My friend's been  23 giving us maps since 1985 or 1986 of the CNR, but this  24 map also has the B.C. Rail, and that of course is a  25 provincially owned railway.  26 THE COURT:  All right, thank you.  27 THE REGISTRAR:  Exhibit 1223, my lord.  28  29 (EXHIBIT 1223 - MAP 5 - CNR AND GRAND TRUNK PACIFIC  3 0 RAILWAY LINES)  31  32 MS. KOENIGSBERG:  And there is a booklet which describes the  33 vast material in support of that map and outlines the  34 Federal and Provincial relevant statutes and includes  35 a summary table of the tenure documents.  And I would  36 tender that as the -- perhaps it could be -- I am  37 sorry, I didn't get this number.  38 THE COURT:  Well, this will be 1224.  39 MR. GRANT:  No objection to that in light of your ruling, my  40 lord.  41  42 (EXHIBIT 1224 - BOOKLET OF SUPPORTING DOCUMENTS - MAP  43 5)  44  45 MS. KOENIGSBERG:  And I tender 8 volumes of title documents,  46 essentially are the title documents described in tab C  47 of Exhibit 1224.  If they could be marked as -- 22860  Discussion Re:  Exhibits  1 THE COURT:  Each binder?  2 MS. KOENIGSBERG:  Yes.  That will be 125A to what?  3 THE REGISTRAR:  H.  4 THE COURT:  A to H.  5 MR. GRANT:  My lord, if I just may speak on that.  My friend  6 asked that she not have to describe them in greater  7 detail and I just, on this basis, I have no objection  8 to them and that is that my friend has confirmed with  9 me that the 8 volumes are documents that would, if  10 certified, some of them may be certified --  11 MS. KOENIGSBERG:  They are all certified.  12 MR. GRANT:  Yes, so we had told them they weren't required to be  13 certified, but our documents admissible under section  14 308 of the Land Title Act and we indicated to them  15 that it was not necessary to have them certified.  16 Some of them were, some weren't.  17 MS. KOENIGSBERG:  No.  My friend has that wrong.  18 MR. GRANT:  They all are, I gather —  19 MS. KOENIGSBERG:  They were all certified and they were  20 certified before my friend gave me the agreement that  21 they didn't have to be certified.  22 THE COURT:  All right.  They are certified?  23 MS. KOENIGSBERG:  Yes.  24 THE COURT:  All right.  Well, there's historical value in having  25 a complete record.  Somebody may want to do a survey  26 of this, these proceedings some time, and it will be  27 useful to have the records clean as possible.  28 MS. KOENIGSBERG:  Your lordship should know that within volume 1  29 is a correction sheet.  30 THE COURT:  I am sorry, volume 1, you mean A?  31 MS. KOENIGSBERG:  Yes.  In the index of volume 1 of the title  32 documents of the volume 1 of the 8 volumes --  33 THE COURT:  Yes.  34 MS. KOENIGSBERG:  — I should describe that in the index —  35 THE COURT:  Well, you are talking about volume what's now 1225  36 capital A?  37 MS. KOENIGSBERG:  Yes.  And I don't know if we need to mark this  38 separately, I just wish to describe it, there are  39 corrections to the summary table which refers to the  40 table in the booklet which is 1224, and an addendum to  41 the summary table.  There were simply additional title  42 documents found in relation to ones that were already  43 there.  And then there are maps or roll plans which  44 form part of this collection and so there is a  45 description of the maps at tab D and tab E.  Tab D  46 describes 25 Land Title Office plans and tab E  47 describes 13 tube plans that were simply too large to 22861  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  MS.  THE  MS.  THE  MS.  THE  MS.  MR.  THE  MR.  THE  put in binders.  And perhaps I could meet with the  registrar after court and we could itemize the maps  and plans separately if your lordship would simply  reserve numbers for them because they are as maps and  plans and aren't within the binder, and perhaps they  could be 1, 2, 3, 4 through 25, just so they have a  sticker on them.  COURT:  How many are there?  KOENIGSBERG:  There are 25 maps.  COURT:  All right.  KOENIGSBERG:  And, I am sorry, they are called plans and  there are 13 tube plans.  COURT:  Yes, all right.  Well, are you suggesting they be  given a distinctive number within 1225 capital A?  KOENIGSBERG:  Yes.  I can't think of any other way to simply  itemize them so that they -- because we have them in a  map rack which we will leave them with the court in  the map rack and they are in fact described and  organized on the plan in the index by their number in  relation to their position in the map rack, but I  think probably they will need a sticker.  COURT:  All right.  Is that — yes, that's fine.  KOENIGSBERG:  Okay, good.  GRANT:  They will be Exhibit 1225A and then the numbers  within that series.  COURT  GRANT  COURT  Yes.  Just so I have a note.  Yes.  (EXHIBIT  (EXHIBIT  (EXHIBIT  (EXHIBIT  (EXHIBIT  (EXHIBIT  (EXHIBIT  (EXHIBIT  (EXHIBIT  1225A -  1225B -  1225C -  1225D -  1225E -  1225F -  1225G -  1225H -  1225 1-  TITLE  TITLE  TITLE  TITLE  TITLE  TITLE  TITLE  TITLE  38-2  DOCUMENTS  DOCUMENTS  DOCUMENTS  DOCUMENTS  DOCUMENTS  DOCUMENTS  DOCUMENTS  DOCUMENTS  5 PLANS)  VOLUME 1)  VOLUME 2)  VOLUME 3)  VOLUME 4)  VOLUME 5)  VOLUME 6)  VOLUME 7)  VOLUME 8)  MS. KOENIGSBERG:  Next map, there are two, 31A is a map showing  what has been loosely described as Federal presence  other than the railways -- the railway and reserves,  and it's up to 1982, April 17, 1982.  THE COURT:  What particularly is it?  Airports?  MS. KOENIGSBERG:  There are married quarters for the R.C.M.P.  It's every interest either in fee simple or leased or  whatever other tenure it might be known in the claim 22862  Discussion Re:  Exhibits  1 area as being owned or where the interest is in the  2 Federal Government.  3 THE COURT:  Yes, all right.  4 THE REGISTRAR:  Did you say that was map 31?  5 MS. KOENIGSBERG:  31A.  6 THE REGISTRAR:  There are two?  7 MS. KOENIGSBERG:  And 31B.  8 THE COURT:  They include such things as R.C.M.P. stations, post  9 offices, public works yards.  10 MS. KOENIGSBERG:  Post office.  11 THE COURT:  Yes.  12 MS. KOENIGSBERG:  There is a booklet.  13 MR. GRANT:  With respect to the map, my lord, I just wish to say  14 that of course the submission I made earlier, it would  15 apply to this, that there is no objection for it going  16 in to show the Federal lands that are -- would be  17 excluded from a declaration in light of the facts the  18 plaintiffs have no claim against the Federal Crown but  19 that there is the issues I raised earlier about the  20 pleadings and the other issues on the railway map, I  21 would just submit the same argument would apply here.  22 I want -- so your lordship is clear on our position.  23 THE COURT:  I am admitting them on the grounds that I stated  24 earlier.  25 MR. GRANT:  Yes, thank you, my lord.  26 MS. KOENIGSBERG:  The booklet is entitled Federal Presence in  27 the Gitksan-Wet'suwet'en Land Claim Area Land  28 Interests Map 31A, and it contains sections of the  29 Federal statutes which authorize the specific Federal  30 presence, and then it lists the Federal land interests  31 in the claim area, and then just as an example are  32 such things as a DIA office and nursing building, post  33 office, a number of post offices, airstrips, married  34 quarters, and the like.  And I would tender the  35 booklet, it's hard to describe, this is a booklet, a  36 book, the first book as the next exhibit.  37 THE COURT:  How many volumes are there?  38 MS. KOENIGSBERG:  There is just one.  39 THE COURT:  All right.  That will be 1226.  40  41 (EXHIBIT 122 6 - BOOKLET RE - 13 TUBE PLANS FEDERAL  42 PRESENCE IN LAND CLAIM - MAP 31A)  43  44 THE REGISTRAR:  Was that map —  45 THE COURT:  The map will be 1227, I suppose.  46  47 (EXHIBIT 1227 - MAP 31A - FEDERAL PRESENCE OTHER THAN 22863  Discussion Re:  Exhibits  1 RAILWAY OR RESERVES AS OF 1984)  2  3 MS. KOENIGSBERG:  And there are volumes of the actual title  4 documents.  5 THE COURT:  How many volumes?  6 MS. KOENIGSBERG:  Excuse me, my lord, I am being re-instructed.  7 I am happy to report, my lord, I am mistaken.  There  8 is just one volume.  9 THE COURT:  One volume of the tile documents?  10 MS. KOENIGSBERG:  Yes.  11 THE COURT:  1228.  12 MS. KOENIGSBERG:  So the second is map 31B which is —  13 THE COURT:  Yes.  14 MS. KOENIGSBERG:  And 31B.  Well, I misspoke, my lord, 31A is as  15 of 1984.  16 THE COURT:  All right.  17 MS. KOENIGSBERG:  And 31B is the same map as of 1982.  18 MR. GRANT:  I just reserve on the same position, my lord.  19 THE COURT:  What's important about 1982?  20 MS. KOENIGSBERG:  That was the Section 35.  21 THE COURT:  Oh, yes, right.  22 THE REGISTRAR:  31B is to get a separate number?  23 THE COURT:  Yes, it should be 1229.  24 MS. KOENIGSBERG:  And there is a book in support of 31B, the  25 Federal Presence in the Gitksan-Wet'suwet'en Land  26 Claim Area Land Interests Map 31B.  2 7 THE COURT:  Yes.  2 8 MS. KOENIGSBERG:  And it has the same documents in it.  2 9 THE COURT:  1230.  30 MS. KOENIGSBERG:  My lord, I think when you gave the exhibit  31 number for 31B you were thinking that I had additional  32 volumes.  It should be --  33 THE COURT:  31B.  34 MS. KOENIGSBERG:  Yes, would it be 1230, are we up to 1230?  35 THE COURT:  Yes.  1230 is the book of title documents supporting  36 map 31B, Exhibit 1229.  37 MR. GRANT:  I just confirmed with my friend, because I was  38 trying to look for the copy with respect to both of  39 the last two maps, there is only one book each, so  40 1227 was map 31A, 1228 was the document book connected  41 to that.  42 THE COURT:  No.  43 MR. GRANT:  1226 was the book connected to that and then we jump  44 to 1229, my lord.  I don't think there is any book for  45 1228 although Ms. Koenigsberg commented on it.  46 THE COURT:  Well, I was told there was a book of title  4 7 documents. 22864  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  MS.  THE  MS.  THE  THE  MS.  THE  MR.  THE  THE  MR.  THE  MS.  THE  MS.  THE  THE  KOENI  COURT  KOENI  COURT  MS. KOENI  COURT  KOENI  COURT  GRANT  COURT  MS. KOENI  GSBERG:  One volume.  Pardon?  GSBERG:  Yes, my lord.  Which I gather supported the items in 1226 which is  a book called Federal Presence in the Gitksan and  Wet'suwet'en Claim Area.  GSBERG:  Yes, my lord.  I did tell you that, and then I  took it back and came back and told you that I was  glad to report that I wasn't --  You came back to tell me there was only one.  GSBERG:  That's right, there was only the one.  All right.  So then there is no -- we don't need a  1228.  Right.  All right.  Well then, to keep this, I suppose there  is no magic but somebody may spend a lot of time  looking for 1228.  Why don't we re-number our present  number 1229, the map 31B as 1228 and the book and the  title documents will be 1229.  GSBERG:  Yes, thank you, my lord.  (EXHIBIT 1228  (EXHIBIT 1229  MAP 31B FEDERAL PRESENCE AS OF 1982)  BOOKLET RE FEDERAL PRESENCE - MAP 31B)  COURT:  And no one will ever wonder where 122 8 went.  GRANT:  The plaintiffs have asked that be removed to be  copied because we don't have it, my lord.  COURT:  Do you have far to go, Ms. Koenigsberg?  KOENIGSBERG:  No, my lord.  COURT:  Why I am asking is whether we should take the  afternoon adjournment or whether you are almost  finished.  KOENIGSBERG:  Yes, maybe if we did take the afternoon  adjournment, I could ensure that I have only one more  thing to do.  COURT:  Yes, thank you.  REGISTRAR:  Order in court.  Court stands adjourned for a  short recess. 22865  Discussion Re:  Exhibits  1 (PROCEEDINGS ADJOURNED AT 3:00 p.m.)  2  3 I hereby certify the foregoing to be  4 a true and accurate transcript of the  5 proceedings herein, transcribed to the  6 best of my skill and ability.  7  8  9  10    11 TANNIS DEFOE, Official Reporter  12 United Reporting Service Ltd.  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 22866  Proceedings  1  2 (PROCEEDINGS RESUMED PURSUANT TO RECESS)  3  4 THE REGISTRAR: Order in court.  5 THE COURT:  Miss Koenigsberg.  6 MS. KOENIGSBERG:  One last item, my lord, and it is related to  7 maps 31 A and B and it is a book of documents, tenure  8 documents and related documents, for the Smithers  9 Airport and it's called -- it's got a long title and  10 it says "Federal airports" and it contains the tenure  11 documents and zoning regulations and the like which  12 relate to the land use that's permitted in relation to  13 the airport, and I recommend it to your lordship.  It  14 has some very lovely maps in it.  15 THE COURT:  Pictures?  16 MS. KOENIGSBERG:  Lovely coloured pictures.  17 THE COURT:  Thank you.  That will be —  18 MS. KOENIGSBERG:  That will be the next exhibit.  19 THE COURT:  1230 I think.  20 THE REGISTRAR: 1230, yes, my lord.  21  22 (EXHIBIT 1230: Book of documents re Federal Airports)  23  24 MS. KOENIGSBERG:  And those are all of the items for submission  25 today.  26 THE COURT:  All right.  Nothing else anyone wants to do today?  27 Receiving no negative response to that suggests we'll  28 adjourn until Monday then, ten o'clock.  Can I revisit  29 this question of scheduling again?  You'll be the  30 greater part of the next four days, Miss Koenigsberg,  31 with evidence and documents?  32 MS. KOENIGSBERG:  Yes, my lord.  Mr. Mclntyre, the Indian agent,  33 will be the witness started on Monday.  34 THE COURT:  Yes.  35 MS. KOENIGSBERG:  And we anticipate being less than a day and a  36 half in chief and then we have I can think off the top  37 of my head three much shorter I think collections of  38 documents, one of them is a collection of wills and  39 one of them is the collection of comprehensive claim  40 documents, and the other is a grouping of historical  41 documents which are admissible and are ancient.  42 THE COURT:  Then if that happens and we finish your evidence in  43 four days --  44 MS. KOENIGSBERG:  Yes.  45 THE COURT:  -- what do you propose the following week, Mr.  46 Grant, or are you in a position to say?  47 MR. GRANT:  Yes.  First of all, I hope — my friends have been 22867  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  MR.  THE  MR.  THE  MR.  THE  THE  very good with respect to most of the documents.  I  know Miss Koenigsberg's having some problem, or I  anticipate she must be having problems with respect to  the historical collection, but I hope that we can get  that in advance so we can review it before it's  tendered next week so that -- rather than stand the  issue down, but if we get it on the Thursday or late  on the Wednesday we'll certainly have to have a chance  to review it before they're tendered.  Other than  that, there are out of court witnesses to be  cross-examined.  Miss Ladesoeur(ph) I believe we've  already confirmed, if not I'm confirming now, that  we'd want to cross-examine her, and that would be in  the week of December 4th.  And there are other  witnesses, possibly Miss Peters, I believe it is  regarding estates in that week.  There's a witness of  the province that we may examine, Mr. Laurie Gordon,  and we're trying to work something out with the  province on that now in that week.  So I would  anticipate the week of December 4 there would be  material out of court and of course if we were going  to reply deal with any reply evidence we would need  some of the time in that week to do it.  Then I can safely make myself comfortable in the  Court of Appeal the week after next?  Or take a rest if you wish.  Well —  And I understand that you would like us in  anticipation of reply to try to deal with any reply in  the week of the 11th.  I would much prefer that.  We're going to do what we can to meet your concerns.  I'll speak with Mr. Rush concerning that today.  All right.  Thank you.  REGISTRAR: Order in court.  Court stands adjourned until ten  o'clock on Monday.  (PROCEEDINGS ADJOURNED TO NOVEMBER 27, 198 9)  I hereby certify the foregoing to  be a true and accurate transcript  of the proceedings herein to the  best of my skill and ability.  Tanita S. French  Official Reporter  THE COURT  GRANT  COURT  GRANT  COURT:  GRANT:  COURT:


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