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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1989-11-27] British Columbia. Supreme Court Nov 27, 1989

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 22868  R. Mclntyre (for Canada)  In Chief by Mr. Macaulay  Vancouver B.C.  November 27, 1989.  (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT)  REGISTRAR:  In the Supreme Court of British Columbia, this  27th day of November, 1989.  In the matter of  Delgamuukw versus Her Majesty the Queen at bar, my  lord.  COURT:  Thank you.  Well, I don't want to protest too much,  but I want counsel to know that I am not late.  I have  been sitting in chambers.  So we will proceed if you  are ready, Mr. Macaulay.  MACAULAY:  I am.  My lord, I have with me today Mr. Murray  Wolff.  Mr. Wolff is an associate of my firm now and  as your lordship may know, he has been involved in  this litigation in another capacity for some three  years.  He has now been appointed an agent of the  Attorney General of Canada.  COURT:  Thank you.  MACAULAY:  And still has a responsibility for keeping me on  track.  COURT: Well, he's failed miserably at that endeavor thus  far, Mr. Macaulay. Let's see how he does now. Mr.  Wolff is welcome, of course.  MACAULAY: My lord, may I hand up an overlay. This, of  course, is no more an exhibit than the map we had  handed up.  GRANT:  What is it?  MACAULAY:  It's the reserves some years ago and that your  lordship is using for reference.  This is the overlay  showing the reserves in the claim area and it  corresponds with the map that was introduced in  evidence last week.  COURT:  That would be —  REGISTRAR:  1231, my lord.  COURT:  1219, isn't it?  MACAULAY:  The map itself.  COURT:  I think it's 1219.  Map 29?  MACAULAY:  Yes.  COURT:  As it's been called.  Yes.  All right.  MACAULAY:  It shows the same reserves.  And it is intended  merely for the assistance of the court.  My friends  have copies of this.  COURT:  Well, now, 1219 was admitted with certain conditions  imposed by Mr. Grant that the colour code be deleted  from the legends.  1  2  3  4  5  6  THE  7  8  9  10  THE  11  12  13  14  MR.  15  16  17  18  19  20  THE  21  MR.  22  23  THE  24  25  26  MR.  27  28  29  MR.  30  MR.  31  32  33  34  35  THE  36  THE  37  THE  38  MR.  39  THE  40  MR.  41  THE  42  MR.  43  44  45  THE  46  47 22869  R. Mclntyre (for Canada)  In Chief by Mr. Macaulay  1 MR. MACAULAY:  There is no colour code.  2 THE COURT:  And a reserve -- or rather a reservation that he  3 imposed on the admission of the reserve map that it  4 may not include all reserves.  5 MR. GRANT:  That's correct.  And that I was going to say that,  6 of course, would apply if my friend says this is a  7 photographic reduction of that map showing those  8 reserves, of course the same reservations apply.  9 THE COURT:  All right, does the overlay in some way depict what  10 it purports to be so that if it's --  11 MR. MACAULAY:  Well, there is a tab on it, my lord.  12 THE COURT:  Does the tab say —  13 MR. MACAULAY:  The tab says 62 and that's no longer a  14 significant number.  15 THE COURT:  Yes.  16 MR. MACAULAY:  Ind, I-n-d, reserves.  17 THE COURT:  Yes.  All right.  What are you suggesting, Mr.  18 Macaulay, that I attach it to this map which is not an  19 exhibit, I don't think?  20 MR. MACAULAY:  That's right.  It's not an exhibit.  21 THE COURT:  Oh, it's not an exhibit.  22 THE REGISTRAR:  1219?  Oh, sorry.  23 THE COURT:  No.  This one here is not an exhibit.  24 MR. MACAULAY:  Well, it has the same status as the map and the  25 other overlays for that map.  They are not exhibits.  26 THE COURT:  Yes, but you are tendering as an exhibit.  2 7 MR. MACAULAY:  No, I am not.  28 THE COURT:  Oh, I see.  You are not.  Well, that's a convenient  2 9 aide-memoire?  3 0 MR. MACAULAY:  That's right.  31 THE COURT:  Thank you.  So that it should be folded up and put  32 away.  I should attach it to --  33 MR. MACAULAY:  Well, when the witness is giving evidence he will  34 give evidence -- this next witness will be giving  35 evidence about certain Indian reserves and he will  36 start by showing where the limits of his jurisdiction,  37 what the boundaries of his jurisdiction were in the  38 claim area and it may be, you know, easier or  39 convenient to follow by reference to that kind of  40 thing.  41 THE COURT:  Yes.  All right.  42 THE REGISTRAR:  Mr. Macaulay, do you need map 29?  43 MR. MACAULAY:  I might, but I don't think so.  I will ask for it  44 if I get into it.  We still don't know what's missing  45 by way of Indian reserves.  4 6 THE COURT:  No.  4 7 MR. MACAULAY:  I haven't heard. 22870  R. Mclntyre (for Canada)  In Chief by Mr. Macaulay  COURT:  Very difficult to draw a map of missing reserves.  MACAULAY:  That's right.  We've tried to find them all.  COURT:  Yes.  MACAULAY:  I call as the next witness, my lord, Mr. Rae  Mclntyre.  Oh, before Mr. Mclntyre is sworn, I have  told your lordship that I would give you the citation  for a Loring report that referred to a considerable  reduction in food fishing and I used the figure 80 per  cent.  That appears at Volume 6 at tab 42.  It's the  Loring report for July, the monthly report dated July  31, 1919, page two of that report.  COURT:  All right.  And that's out of Exhibit —  REGISTRAR:  1209 has been reserved.  COURT:  Sorry?  REGISTRAR:  1209.  COURT:  12 09.  REGISTRAR:  Has been reserved.  COURT:  Yes.  MACAULAY:  I'd referred to it, but I didn't have it.  COURT:  All right.  Swear the witness, please.  RAE MANNING McINTYRE, a witness  called on behalf of the Defendant  Canada, after having first been duly  sworn, testified as follows:  REGISTRAR:  Would you state your full name and spell your  last name, please,  A   Rae Manning, spelled M-a-n-n-i-n-g.  REGISTRAR:  Yes.  A  And my last name is Mclntyre, M-c-I-n-t-y-r-e.  REGISTRAR:  Thank you, sir.  Please be seated.  COURT:  First name R-a-y?  A   R-a-e.  COURT:  R-a-e.  Thank you.  MACAULAY:  My lord, may I hand up a book of documents.  These are the documents I'll be putting to the witness  and I'll ask that now that a number be reserved or  assigned to this collection and that the documents be  marked in the usual way, tab one and so on.  COURT:  This will be 1231, Madam Registrar?  REGISTRAR:  Yes.  GRANT:  I have no objection to my friend reserving the  number for this binder, but I have fairly serious  objection to certain of the tabs, my lord, but I will  wait until my friend comes to it.  COURT:  Thank you.  1  THE  2  MR.  3  THE  4  MR.  5  6  7  8  9  10  11  12  THE  13  THE  14  THE  15  THE  16  THE  17  THE  18  THE  19  MR.  20  THE  21  22  23  24  25  26  27  THE  28  29  30  THE  31  32  THE  33  THE  34  35  THE  36  MR.  37  38  39  40  41  THE  42  THE  43  MR.  44  45  46  47  THE 22871  R. Mclntyre (for Canada)  In Chief by Mr. Macaulay  1    MR. MACAULAY:  My lord.  2  3 EXAMINATION IN CHIEF BY MR. MACAULAY:  4 Q   Mr. Mclntyre, you are an officer in the -- in what  5 department of the Government of Canada?  6 A   I am presently an officer in the Department of  7 Industry, Science and Technology Canada and I am  8 located in Prince George.  9 Q   And when you started with the public service what  10 department did you belong to?  11 A   I started with the Department of Indian Affairs.  12 Q   Was that in the year 1956?  13 A   Yes, it was.  February 17.  14 Q   And you served as clerk at the Stuart Lake agency from  15 1956 to 1958?  16 A   Yes.  17 Q   And then as assistant superintendent at Merritt in  18 1958 to 1964?  19 A   Yes.  20 Q   The term superintendent in those days, that was the  21 what, a new term for Indian agent?  22 A   Yes, it was the term that had replaced the common term  23 of Indian agent by the time I began my career.  It was  24 the term that related to the senior office -- to the  25 senior officer of an administrative -- of a specific  26 geographical area of responsibility within the  27 Province.  2 8 Q   And then you were superintendent at Burns Lake from  29 1964 to 1969?  30 A   Yes.  31 Q   That was a district, was it?  32 A   It was still referred to as an agency.  33 Q   At that time.  All right.  34 MR. GRANT:  What years, I am sorry?  35 MR. MACAULAY:  1964 to '69.  36 Q   And then in 1969 you were -- you went to Prince  37 George?  38 A   Yes.  39 Q   And you were there till 1982?  40 A   I'm still in Prince George.  41 Q   Well, when you went to Prince George you were still  42 with the D.I.A.?  43 A   That's right.  44 Q   And you continued with D.I.A. until 1982?  45 A   Right.  46 Q   Prince George became the headquarters for a larger  47 area that included what had been the Burns Lake 22872  R. Mclntyre (for Canada)  In Chief by Mr. Macaulay  1 agency?  2 A   That is correct.  3 Q   And in 1982 you joined the another government  4 department?  5 A   Yes.  Uh-huh.  6 Q   What department was that?  7 A   That was then the Department of Regional Economic  8 Expansion and since then the name of that department  9 has changed and is now known and I am now employed by  10 Industry, Science and Technology Canada.  11 Q   Now, there is an ARTA program undertaken by that  12 department?  13 A   It was called Special ARTA, yes.  14 Q   And were you involved in Special ARTA?  15 A   Yes.  During the past years of my career with -- with  16 Regional Economic Expansion and currently with  17 Industry, Science and Technology Canada.  18 Q   What is the ARTA program?  19 A   It was a joint Federal and Provincially sponsored  20 program oriented to economic development for Native  21 people.  22 MR. MACAULAY:   My lord, I am going to show the witness for  23 convenience a copy of the map, the aide-memoire.  2 4    THE COURT:  Yes.  2 5    MR. MACAULAY:  26 Q   I don't propose to mark it, but the witness will  27 simply indicate on this map with reference to this map  28 the boundaries of the then Babine -- sorry, Burns Lake  29 agency?  30 A   Yes.  31 Q   And he has -- he's looking at the overlay that I've  32 just handed up, simply the base map and that overlay.  33 Now, Mr. Mclntyre, there is a black line that shows  34 the claim area?  35 A   Yes.  36 Q   And inside that black line can you indicate to his  37 lordship the -- this is only inside the area.  38 A   Yes.  39 Q   The limits of -- the outer limits of the Burns Lake  40 agency while you were --  41 A  My area of responsibility involved the Indian bands  42 and their reserves within what was then known as the  43 Burns Lake agency.  It began in the north, roughly at  44 at the north end of Fort Babine or of Babine Lake in  45 this area here, and then going in a counterclockwise  46 direction, roughly -- in fact along the black line to  47 a place approximately -- to approximately east of the 22873  R. Mclntyre (for Canada)  In Chief by Mr. Macaulay  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  Q  A  Q  A  THE COURT  A  COURT  A  THE  MR. MACAULAY  town of Telkwa and then -- let's see.  Okay.  And then  from Telkwa roughly down to the area shown as Felix  George No. 7, which was a reserve of my  responsibility.  And then I may as well say directly  then south to the black line here at the bottom of the  map and then following along the black line, but  excluding a little reserve down in the corner here  known as Binta Lake.  That reserve was not within my  area of responsibility.  And then back again following  the black line over to its point here.  The eastern most point?  Yes, the eastern most point.  And then -- and then  roughly directly north so as to include all of Babine  Lake but not -- and I would say along the height of  land dividing Babine Lake from Takla Lake and then  back again to the point where I commenced to about  there.  And what were the bands in your agency?  There were four bands in my agency.  The Lake Babine  band, the Omineca band, the Cheslatta band and the  Burns Lake band.  :  I am sorry, what was the second one?  Babine was  first.  The Omineca band.  :  Omineca, Cheslatta and Burns Lake?  Right.  THE  THE  Q   Do you know what the Omineca band is called now?  A   I believe since I left the Department of Indian  Affairs —  Well, this would be -- my lord, would this not be  hearsay?  This is something that's happened since he  left department.  Mr. Grant, I am sure they talk a little bit about  this in Prince George.  GRANT:  Probably not, my lord.  COURT:  I am sure it's a matter of reasonably notorious  understanding, is it not?  MACAULAY: I think so, my lord.  COURT:  Yes.  Q   What is it called --  A   The Omineca band, it's my understanding that it is now  being divided into two bands.  One being called the  Nee-tai-buhn band.  N-e-e.  COURT:  N-e-e?  A   E space t-a-i, I think, space, b-u-h-n.  COURT:  B-h-u-n?  MR. GRANT  THE COURT  MR.  THE  MR.  THE 22874  R. Mclntyre (for Canada)  In Chief by Mr. Macaulay  1  A  2  3  MR. MACAU  4  Q  5  6  A  7  8  Q  9  10  A  11  12  13  Q  14  A  15  Q  16  17  A  18  Q  19  20  A  21  22  23  Q  24  25  A  26  Q  27  28  A  29  30  31  32  33  THE COURT  34  A  35  36  37  MR. MACAU  38  Q  39  40  A  41  42  43  44  45  Q  46  47  A  Yes.  Nee-tai-buhn band.  And the other band being the  Broman Lake band.  uAY:  And within this claim area, did the Cheslatta band  have some reserves?  Oh, yes.  Yes.  And they are to the best of my  recollection all identified there.  I mean they are all described as Cheslatta number one  and Cheslatta --  Yes.  If I could just look again, though, I believe  there are -- there are a number of reserves -- no,  they are all identified there.  Yes.  As Cheslatta?  To the best of my -- to the best of my recollection.  Now, you mentioned the Binta Lake band, Binta Lake  reserve number two as being outside your jurisdiction?  Yes.  The map shows that that's on the east shore of Binta  Lake?  Right.  That is a reserve that at my -- during my time  was a reserve of the Stellaquo band.  S-t-e-1-l-a-q-u-o.  And around Burns Lake itself there is Burns -- there  are some Burns Lake reserves?  Yes.  And can you identify the Burns Lake reserves that you  knew?  The bands that belong to the Burns Lake reserve were  their home reserves Burns Lake, Burns Lake Indian  reserve number 18 and then there are other unoccupied  reserves and I'll refer to them just by numbers if  that's -- if that's suitable.  :   Yes.  Number 17, number 17A and number 19.  The other  reserves around and immediately within around Burns  Lake are reserves of the Lake Babine band.  uAY:  Do you see the names on the map of that lake you're  looking at of the Lake Babine band?  Yes.  Woyenne, number 27, and Chapel Park, number 28,  are virtually within the town of Burns Lake.  And then  there are, of course, other Lake Babine band reserves  which are outside of the area that are not identified  on this map.  Most of the Lake Babine band reserves are on the lake  itself, Babine Lake, are they?  Most, but not all. 22875  R. Mclntyre (for Canada)  In Chief by Mr. Macaulay  1  Q  2  3  A  4  Q  5  A  6  Q  7  A  8  Q  9  A  10  Q  11  12  A  13  Q  14  15  A  16  17  18  19  20  21  22  Q  23  A  24  Q  25  A  26  Q  27  A  28  Q  29  30  A  31  Q  32  A  33  Q  34  A  35  Q  36  A  37  Q  38  39  A  40  41  MR. MACAU  42  43  THE COURT  44  Q  45  46  47  A  Yes.  And the -- you mentioned the Felix George number  7 --  Yes.  -- reserve.  That is in your bailiwick?  Yes , it was.  And it was a reserve for what band?  It was a reserve of the Omineca band.  And there were a number of other reserves?  Oh, yes.  Uh-huh.  The western most of the reserves, they were -- were  they generally Omineca reserves?  Yes.  Now, did -- your area included Tahtsa Lake, did it,  your agency?  I can't recall whether Tahtsa Lake was within the then  map of my area.  If it was within the area, I had  never had any cause to go there, because it's a very  remote area.  There were no -- there are no reserves  there as you can see.  And it really -- it really  wasn't relevant as to whether -- whether or not it  was -- it was in my area or out of my area.  And how about Nadina Lake, was that in your area?  I don't -- I don't recall that.  Did you ever have any reason to go there?  Not on business.  No.  I went there for my own pleasure.  Now, the Felix George number 7 reserve was on Owen  Lake?  Yes.  And you used to go there?  Yes.  Yes.  And then there is some reserves on Francois Lake?  Yes.  Many reserves?  Yes.  There are quite a number of.  And you were -- that was certainly part your  bailiwick?  Yes.  There were reasons for me to go there from time  to time.  jAY:   I'm going to refer the witness now to tab one,  my lord.  :  Thank you.  It's the superintendent semi-annual report for October  1, 1965.  Mr. Mclntyre, this is a report that you made  in October 1965?  Yes, it is. 22876  R. Mclntyre (for Canada)  In Chief by Mr. Macaulay  1 Q   Covering the previous six months?  2 A   Yes.  3 Q   And would that have been your first semi-annual report  4 in that agency?  5 A   Yes, it would have been.  6 Q   And I draw your attention to page two of the report  7 under the heading "Indian Land," the second paragraph,  8 which says:  9  10 "Approximately 7.1 acres of Burns Lake Indian  11 Reserve No. 18 was sold to the Lake Babine band  12 during the period."  13  14 Do you recall that?  15 A   Yes, I do.  16 Q   And why was that done?  17 MR. GRANT:  Well —  18 A   That was done to enlarge the reserve that was or  19 subsequently became known as Woyenne Indian reserve  20 number 27, and the purpose of that exchange was to  21 provide more -- more home building area on Indian  22 reserve number 27 for members of the Lake Babine band.  2 3    MR. MACAULAY:  24 Q   Were Lake Babine Indians moving into the Burns Lake  25 area in and around 1965?  2 6 A   Yes, they were.  And they had been moving in for some  27 years previous to that point in time.  28 Q   Now, under "Labour and Employment" on the same page  29 you start the paragraph by saying:  30  31 "There was no shortage of employment  32 opportunities during the period.  All those who  33 wanted to work had little real difficulty  34 finding work.  Logging, sawmilling and  35 construction jobs were readily available in  36 most areas."  37  38 You see that?  39 A   Yes, I do.  40 Q   There was -- was there full employment for the Indians  41 at that time?  42 A   There was not full employment.  43 MR. GRANT:  Well, my lord -- my lord, with respect, my friend is  44 making very generic statements here now about events  45 in Burns Lake.  My -- my question is, is he tying this  46 to the plaintiffs, and if so how?  I mean, we are not  47 talking about Indians in general here.  We're talking 22877  R. Mclntyre (for Canada)  In Chief by Mr. Macaulay  1 about the Gitksan and the Wet'suwet'en and the Lake  2 Babine band is not a named plaintiff -- the evidence  3 has indicated that many members of the Lake Babine  4 band and the Burns Lake band are not plaintiffs.  5 There are some that are.  I am not denying that.  But  6 the majority of them are not from the evidence we've  7 thus far heard.  And for my friend to start to wax  8 eloquent about what's going on in Burns Lake in 1965  9 in terms of employment opportunity for quote Indians  10 end quote, I'd say it's very very far afield and not  11 relevant, unless he's going to establish through this  12 witness who the witness is talking about and can  13 connect that to the plaintiffs.  And I don't think  14 it's proper for him to just say because this witness  15 is talking about Indians he's talking about the  16 plaintiffs.  17 THE COURT:  A good part of this area upon which this report is  18 made deals with claim territory, does it not?  19 MR. GRANT:  The area — the area of the Burns Lake agency that  20 the witness has described in the southeast sector of  21 the claims area, that's true.  But he's not -- there  22 is a difference.  He's now referred to the Cheslatta,  23 who are not, of course, Wet'suwet'en, and he's talking  24 about Indians and asking about full employment for  25 Indians.  And I say that he has to tie this to the  26 plaintiffs in some way.  He can't make just by  27 innuendo that the witness is talking about plaintiffs.  28 And I don't think that this report does that.  29 THE COURT:  Well, perhaps one well phrased question of Mr.  30 Macaulay can --  31 MR. MACAULAY:  Well, my lord —  32 THE COURT:  What part of this is related to the plaintiffs, if  33 any?  34 MR. MACAULAY:  My lord, this witness' evidence deals with a  35 number of issues.  One of them is overlap.  The area  36 is full of non plaintiffs.  37 THE COURT:  I am sure that will be right.  There is a number of  38 white people living in the area as well.  39 MR. MACAULAY:  Well, no.  Members of bands who are not  40 plaintiffs.  41 MR. GRANT:  Well —  42 THE COURT:  Well, I think that what Mr. Grant's problem is is  43 with the statement there was no shortage of employment  44 during the period, and I suppose his question is no  45 shortage for whom and if it -- if the witness' answer  46 is it's for all the Indians in my territory, then it  47 seems to me that it has some relevance. 2287?  R. Mclntyre (for Canada)  In Chief by Mr. Macaulay  1 MR. MACAULAY:  The greater includes the less.  2 THE COURT:  Yes.  Well, let's just confirm that it does in this  3 case.  4 MR. MACAULAY:  5 Q   Was there no shortage of work for the Indians in your  6 agency?  7 A   Except for those people who lived in the remote area  8 along the northern -- or at Fort Babine, which is at  9 the northern end of Fort -- of Babine Lake.  It was  10 my -- my opinion when I -- when I wrote the report  11 that those -- those Indian people who lived in and  12 south of Burns Lake had employment opportunities.  It  13 was something else in my opinion as to whether or not  14 they chose to exploit those opportunities and many of  15 them did not choose in my opinion to exploit those  16 opportunities.  The opportunities were mainly in the  17 forest industry, almost entirely in fact in the forest  18 industry.  Either in sawmill -- in sawmill employment  19 or in bush operations.  20 Q   Did you -- now, those employment opportunities were  21 available to the Omineca band members?  22 A   Yes.  Yes.  23 Q   As well as to the Cheslatta and the Burns Lake?  24 A   To the Cheslatta and to those members of the Lake  25 Babine band who, of course, had by then moved into  26 Burns Lake.  27 Q   Yes.  And you met with officials of the Granisle Mines  2 8 Limited?  29 A   I am not -- I'm not sure that Granisle Mines was  30 underway at that point in time.  In any case --  31 Q   I am drawing your attention to the last paragraph on  32 that page two.  33 A   I guess it was.  Yes, I can recall -- I can recall  34 having discussions with officials of Granisle Mine.  35 Q   And what was -- I don't want you to tell his lordship  36 what you said, what they said to you, but what was the  37 purpose of your discussion, the general purpose?  38 A   To determine the measure of employment opportunities  39 that would then exist or were likely to exist in the  40 future beyond that point.  41 Q   Could you turn to page five of this report.  At the  42 top of the page under the heading "Community Liaison  43 in Education Matters."  Did you have anything to do  44 with the first -- what you describe there as the first  45 adult literacy classes?  46 A   Yes, I did.  47 Q   And were they for the members of all of bands in your 22879  R. Mclntyre (for Canada)  In Chief by Mr. Macaulay  1 agency?  2 A  Well, they were.  But these courses, since they were  3 being held in Burns Lake, obviously the -- you know,  4 the greater numbers of band members that would -- that  5 attended these courses were members of the Lake Babine  6 band simply because the location of the courses or the  7 location of the course was not that convenient to  8 members of the Omineca or Cheslatta band, but  9 certainly to the extent that those members would have  10 wanted to travel to Burns Lake to take the courses,  11 they were available to them.  12 Q   And in the next paragraph you refer to planning  13 literacy classes at amongst other places Grassy  14 Plains?  15 A   Yes.  16 Q   Was Grassy Plains -- what bands lived around Grassy  17 Plains?  18 A  Members of both the Omineca and Cheslatta bands lived  19 around Grassy Plains.  The location of their reserves  20 didn't -- didn't adhere to any -- any -- any specific  21 geographical location as it tends to in many other --  22 in many other areas of the Province.  Their reserves  23 were in fact located side by side in some cases.  24 Q   And were there -- these courses at Grassy Plains, were  25 they ever undertaken?  26 A   I honestly don't remember.  27 Q   Now, if you'll turn to part two, you have a part two  28 of your report, part two, page two.  Under the heading  29 "Development in Publicity and Public Relations" and  30 the sub-heading "Indian Affairs Committee  31 Organization."  Do you see that in the middle of the  32 page?  33 A   Yes.  34 Q   Was such a committee established?  35 A   I can recall that it was established in Burns Lake.  I  36 cannot recall whether it was actually established at  37 Hazelton or Smithers.  38 Q   And what was the purpose of the committee?  39 A   The last of my report says midway through the first  40 paragraph, there was perceived at that time to be a  41 need for greater understanding and tolerance, a  42 greater understanding and tolerance and acceptance of  43 Indian people.  And this was of concern to me  44 specifically in Burns Lake, because of the -- of the  45 migration of many members of the Lake Babine band into  46 the town of Burns Lake and the overcrowding results  47 that had occurred because of that migration. 22880  R. Mclntyre (for Canada)  In Chief by Mr. Macaulay  1  Q  2  3  4  A  5  Q  6  7  8  9  10  11  12  13  14  15  16  A  17  Q  18  A  19  Q  20  A  21  Q  22  A  23  Q  24  25  26  27  A  28  Q  29  A  30  Q  31  32  A  33  Q  34  35  MR.  GRANT  36  37  38  39  MR.  MACAU  40  THE  COURT  41  MR.  GRANT  42  43  THE  COURT  44  MR.  GRANT  45  THE  COURT  46  MR.  GRANT  47  Now, my lord, I'm turning to tab 2, another report.  This is the semi-annual report dated April 1 -- as of  April 1, 1966.  This is another report of yours?  Yes.  And on page one at the bottom of the page under the  heading "Fur and Wildlife," you say:  "Increased fur prices this year probably  resulted in a slightly increased fur catch, but  trapping remains unpopular with most of the  younger Indians.  Most fur is caught in the  immediate vicinity of the reserve where the  trapper can return home each evening."  You reported that at the time?  Yes, I did.  Did those remarks apply to the Omineca band members?  Yes.  And to the other band members in the --  Yes.  -- Burns Lake area?  Yes.  And at the top of page two you report that moose and  deer in the area were in abundant supply that winter.  Was there a lot of hunting by members of the various  bands under your supervision?  It was my perception that there was, yes.  Did you hunt yourself?  In season, in and around Burns Lake, yes.  Was there any -- ever any objection made to your  hunting?  No.  No.  Do you know of any objection made to any other  resident of Burns Lake hunting?  :  Well, I object, my lord.  My friend's moving much  further afield here.  This isn't something reflected  in his report.  It would only be something that  somebody would tell him second- or third-hand.  jAY:  This isn't an expert witness.  :  No.  :  I am not suggesting he is an expert.  I am not  asking --  But there is no report.  I am sorry, I meant his --  Oh, his written material?  This written report that he wrote.  I mean he's  asking now did somebody else tell him that somebody 22881  R. Mclntyre (for Canada)  In Chief by Mr. Macaulay  1 else complained about somebody else.  I mean I think  2 we are getting into --  3 THE COURT:  The most he can say is that he has not had  4 complaints brought to his attention.  5 MR. GRANT:  Well, yeah, he can say that somebody complained to  6 him, but he can't ask if somebody complained to  7 somebody else.  8 THE COURT:  No.  I think when one is in the position of a  9 clearing house, or a potential clearing house, or  10 complaints department, one can say whether he has  11 received complaints or not.  It doesn't prove the  12 truth of them, or the accuracy, or the bona fides  13 even, but it can go so far as to say I didn't have any  14 complaints at all or I had some complaints.  That's  15 about as far as it can go in the absence of being  16 qualified in some way as an expert or a different  17 foundation being laid.  18 MR. GRANT:  Right.  19 THE COURT:  For business records or something of that nature.  2 0 MR. MACAULAY:  21 Q   Did the -- did any band members of the bands that you  22 have mentioned that were under -- in your agency  23 complain to you about local residents, non-Indian  24 local residents hunting?  25 A   No.  I don't ever recall any such complaints being  26 made by any band members to me.  There were occasional  27 complaints that I -- that I heard from band members  28 about non-resident guided trophy hunters taking --  29 taking animals only for their trophy value.  And --  30 and allegations made that these unnamed unknown trophy  31 hunters had had abandoned carcasses in the woods.  But  32 that was -- that was the only complaint I ever  33 recalled hearing.  34 Q   Could you turn to page three of this report.  Under  35 the heading "Winter Employment" in the second line you  36 say:  37  38 "Most men found employment in logging during  39 the winter.  40  41 Does that statement pertain to the Omineca and Burns  42 Lake band members?  43 A   Yes.  I think it was -- it was a fair general  44 statement that could have applied or that did apply to  45 all of the -- all of the Indian people in my area.  46 Q   And did a substantial number of the men of those two  47 bands work in the -- 22882  R. Mclntyre (for Canada)  In Chief by Mr. Macaulay  1 MR. GRANT:  Well, I'd ask that my friend would not lead so much  2 as he's doing.  Ask the witness what he knows about  3 it.  4 THE COURT:  Your friend doesn't want you to lead, Mr. Macaulay.  5 MR. MACAULAY:  6 Q   Was there -- what was the level of employment?  7 A  Well, I don't know that I could use the term  8 substantial, but I think a term I would prefer to use  9 would be significant number.  The nature of logging  10 activities in that area was -- it's much easier to log  11 in that area during the winter when ground -- or when  12 ground conditions are frozen than it is at any other  13 time of the year.  And so the main removal of wood  14 from the forest at that time and even now still tends  15 to be during the winter months when equipment can work  16 on frozen ground or on frozen swamps or whatever.  17 Q   Could you refer to tab three, witness.  My lord, I  18 will refer the witness now to his report dated October  19 1, 1966.  This is another of your reports?  20 A   Yes.  21 Q   And under the heading "Labour and Placement" you  22 report here that -- and I read from the first -- the  23 first sentence:  24  25 "There have been good employment opportunities  26 available for local Indians this summer."  27  28 Did that apply to the Omineca and Burns Lake bands?  29 A   I think it applied mainly to -- to members of the Lake  30 Babine band who were living in -- who were living at  31 Pendleton Bay at Babine Lake or those who may have  32 been living in Burns Lake who chose to commute to  33 Pendleton Bay.  At this point in time, as my report  34 says, there were -- this was -- there was an increase  35 in mill capacity at Pendleton Bay.  In the area of the  36 Omineca and Cheslatta people, on the other hand, there  37 was no such increase in capacity.  So my recollection  38 is that there was no -- that there was no significant  39 increase or decrease in employment opportunities for  40 those people at that time.  41 Q   Could you turn to tab four, witness.  My lord, this is  42 the report for April 1, 1967.  This is another report  43 of yours?  44 A   Yes.  45 Q   Now, on page one of part one you say under the heading  46 "Commercial Fishing":  47 22883  R. Mclntyre (for Canada)  In Chief by Mr. Macaulay  1 "We have had discussions with Provincial  2 authorities concerning a proposal to allow  3 Indian to fish local lakes for whitefish and to  4 sell them locally."  5  6 You see that?  7 A   Yes.  8 Q   What lakes were you talking about?  9 A   The main focus and only focus of this -- of this  10 particular proposal related to Francois Lake and  11 specifically involved a few members of the Omineca  12 band.  I discovered some months previous to this that  13 certain members of the Omineca band were catching  14 commercial grade whitefish, which I believe, and I am  15 not an expert in this, but I believe they are a specie  16 exactly the same as the commercial type of whitefish  17 found in northern Saskatchewan and Manitoba.  As my  18 report says, I saw here an opportunity perhaps where  19 this resource could be -- could be developed and I  20 asked for and obtained a feasibility study on the --  21 on developing this fishery.  It was in fact -- it was  22 in fact an ARTA program that undertook the study.  The  23 outcome of the study was that the reproductive  24 capacity of Francois Lake in respect to this  25 particular fish species was not -- was not sufficient  26 to support a commercial fishery.  And so it never went  27 beyond the feasibility study stage.  28 Q   Who were the people catching these fish in Francois  29 Lake?  30 A  Mainly a lady by the name of Mary Jane Morris and  31 immediate family who were members of the Omineca band  32 and in fact Mary Jane, either then or shortly before  33 or shortly thereafter, was chief of the band.  34 Q   And you knew her?  35 A   Oh, yes.  Very well.  36 Q   And her family?  37 A   Uh-huh.  38 Q   Do you know anyone else who is catching those fish in  39 Francois Lake?  40 A   No.  I know of no other person that caught them,  41 although it's possible that there were other members  42 of the band who -- who set nets.  The reason I say  43 that I believe that Mary Jane was the only one that  44 caught the fish was that to the best of my knowledge  45 she's the only one that had a boat on the lake.  And  46 the place where she used to catch the fish was  47 immediately off-shore from her home. 22884  R. Mclntyre (for Canada)  In Chief by Mr. Macaulay  1 Q   And the other band members didn't have boats --  2 A   No.  3 Q   -- who were living on the lake?  4 A  Well, there weren't that many of them actually living  5 on the lake.  Most of the reserves of the Omineca  6 bands are not located on the lakes.  Rather they are  7 located, you know, off -- you know, off from the lake.  8 Not -- not far from the lake, but they are not  9 lake-using people.  There was no reason for them to  10 use the lake like there was reason for members of the  11 Lake Babine band to use the lake.  The lake provided  12 transport -- a transportation route for members of the  13 Lake Babine band and the Omineca and Cheslatta people  14 were able to travel by road.  15 Q   Were any of the four bands heavily engaged in fishing?  16 A   The Lake Babine band, of course, was very very heavily  17 involved.  They were involved in mainly in salmon, in  18 the Babine River which is -- which flows out of Babine  19 Lake and is a tributary of the Skeena.  It was not my  20 perception that members of the Omineca, Cheslatta or  21 Burns Lake band were as reliant or as dependent, if  22 you like, on the salmon resource as members of the  23 Lake Babine band were.  24 Q   When you went to a Lake Babine band reserve, could you  25 tell whether or not they were -- just by looking  26 around whether they were fishermen?  27 A   Oh, yes.  You could see nets hanging up.  You could  28 see their smokehouses.  In salmon season these  29 smokehouses would be used.  You would see people  30 preparing fishing, smoking them.  That sort of -- sort  31 of thing.  I did not see the same kind of activity in  32 respect to members of the Burns Lake, Cheslatta or  33 Omineca bands.  34 Q   Could you turn to page three of this report and under  35 the heading "Band Council Administration."  The last  36 paragraph reads:  37  38 "All bands in this agency have completed their  39 annual revenue budgets for 1967, '68.  This is  40 the first time that the Cheslatta and Omineca  41 bands have prepared a budget."  42  43 And you go on to talk about the amounts.  Do you  44 recall this first time that the Omineca band prepared  45 a budget?  46 A   Today I can't recall it, but I can recall that before  47 I went to Burns Lake these bands were not preparing 22885  R. Mclntyre (for Canada)  In Chief by Mr. Macaulay  1 budgets and when I left Burns Lake they were.  So it  2 must have -- it must have occurred as I reported.  3 Q   Could you turn to tab five.  My lord, this is a report  4 for October 1, 1967.  And to page two of that report.  5 There is a reference in the third paragraph there to  6 this proposed fishery, Indian food fishery on the  7 third paragraph at the top.  8 A   I'm sorry, do I have the wrong tab here?  9 Q   No.  The paragraph that reads:  10  11 "Discussions were held during the period with  12 personnel from -- "  13  14 A   Oh, right.  15 Q  16  17 "-- the Provincial fish and game department  18 with a view to establishing an Indian food  19 fishery for members of the Omineca and  20 Cheslatta bands on nearby lakes in this  21 agency."  22  23 Is that the proposal you just referred to resulting in  24 a study?  25 A   No, no.  This would have been -- this would have been  26 a separate matter than the study.  Rather it would  27 have been a concern that I had at the time that there  28 were non-commercial fish species available in numerous  29 lakes around -- around the area south of Burns Lake.  30 And I believe   I seem to recall that it might be a  31 good idea if Indian people could be allowed to set  32 nets in these lakes during different times of the year  33 in order to catch fish for their own use.  I don't  34 recall that anything very much ever -- ever came of  35 this.  I suspect, although I don't recall, but I  36 suspect that this would not -- this kind of an  37 arrangement would not have been very acceptable to the  38 non Native sport fishery interests.  39 Q   You are talking about the lakes south of Burns Lake?  40 A   Yes.  41 Q   Were band members of any of the bands doing any net  42 fishing in any of those lakes that you knew of?  43 A   Not that I was aware of, no.  44 Q   Now —  45 A   Except -- except for Mary Jane Morris who used to set  46 a net and catch these whitefish that attracted my  47 interest that I mentioned earlier. 22886  R. Mclntyre (for Canada)  In Chief by Mr. Macaulay  1 Q   Now, if you will turn to page five, fifth page,  2 three-quarters of the way down the page is a paragraph  3 entitled "Labour and Placement."  And the last  4 sentence, two sentences are as follows:  5  6 "In addition to this we will also try to  7 encourage Indians to make better use of their  8 traplines.  We have not been too successful in  9 this regard in past seasons, but I believe the  10 amount of fur that exists on most Indian  11 traplines certainly justifies our efforts in  12 trying to get Indians out to trap."  13  14 You see that?  15 A   Yes.  16 Q   Could you tell by going around your bailiwick or  17 speaking to the band members how many of them were  18 trapping?  19 A   I couldn't tell on pure, you know, in real accurate  20 terms.  All I could go by was my perception that they  21 were not -- that they were not trapping a great deal.  22 I obtained those perceptions because I saw very few  23 traps.  I saw very little evidence of people out  24 setting traps.  In my visits to their homes I almost  25 never noticed any fur being prepared.  I heard very  26 little discussion about trapping success or lack of  27 trapping success or anything to do with trapping and  28 yet I was aware that these people possessed traplines.  29 And I was -- I was told, and it seemed obvious from  30 trapline maps that occasionally attracted my  31 attention, that these people had traplines in over --  32 over remote areas and that there must be some fur  33 there and that maybe I as Indian superintendent ought  34 to be doing something to encourage trapping.  35 Q   Did you speak to band members about record keeping?  36 A   Yes, I did.  37 Q   In connection with trapping?  38 A   Yes, I did.  39 Q   And what -- did you give them some advice in that  40 regard?  41 A   I suggested that whenever they caught fur that it  42 might be to their long-term advantage to -- to keep  43 some records of their fur catch, because I felt that  44 one day those records might be useful to them.  Useful  45 to them, for instance, in a, you know, in a situation,  46 you know, of a land claims such as this.  There  47 were -- there was very little by way of record keeping 22887  R. Mclntyre (for Canada)  In Chief by Mr. Macaulay  1 being done to my -- in my opinion by the Department of  2 Indian Affairs or by the Provincial Government or by  3 anybody, and I thought it would be -- it would be  4 advantageous to Indian people to at least keep their  5 own records such as fur sales slips or anything else.  6 Q   Did you have any success in getting more trapping  7 going while you were superintendent at Burns Lake?  8 A   Oh, in retrospect I don't think so.  9 Q   Would you turn to tab 6.  My lord, these are minutes  10 of the Omineca band nominating meeting held on August  11 17, 1967.  12 MR. GRANT:  I would like to know what the relevance of this is  13 before my friend asks questions about it.  I would  14 like to know what the relevance of this is of the  15 Omineca band's nominating meeting held in 1967, what  16 relevance does that have to the issues in this court?  17 MR. MACAULAY:  It shows one of the activities of the Indian  18 superintendent in connection with the running of  19 Indian affairs and of the band members themselves.  20 THE COURT:  Are any of the members of this band plaintiffs in  21 this action?  22 MR. MACAULAY:  I believe so, my lord.  23 THE COURT:  We have heard quite a bit about some of these  24 people.  25 MR. MACAULAY:  Sophie Ogen, certainly.  2 6 THE COURT:  Yes.  And the Skin family and the Tom family, but I  27 don't know if they are using the same people or not,  28 and the Morris family, of course.  We heard about  2 9 them.  Although I don't know whether Mr. and Mrs.  30 Tommy Jane Morris had been previously mentioned.  What  31 part of the report particularly, if any, or of the  32 minutes are particularly -- are you planning to refer  33 to, Mr. Macaulay?  34 MR. MACAULAY:  I'm not going to refer to any particular part of  35 the minutes except the -- the -- what, the overall  36 effect.  I am going to be asking the witness if this  37 was a contested election, and I suppose page two does  38 show us that, and whether they were generally  39 contested elections.  It also refers to the taking on  40 of more responsibilities in the context of band  41 government, self-government.  42 THE COURT:  Well, I wouldn't have the slightest hesitation in  43 allowing it into evidence if it was shown to relate to  44 the plaintiffs.  I am a little worried about its  45 relevance.  4 6 MR. MACAULAY:  Well, my lord —  47 MR. PLANT:  If I may say, I would urge your lordship to find 22?  R. Mclntyre (for Canada)  In Chief by Mr. Macaulay  1 that this is relevant.  This is a document in which,  2 taken for the moment the assumption that the majority  3 of these individuals are not claimants in the action  4 before your lordship, this is a document which appears  5 to disclose acts of governments taking place within  6 the land claims area by aboriginal peoples other than  7 the claimants.  And of course, in paragraph 61 of the  8 Statement of Claim the plaintiffs say that they have  9 exercised jurisdiction over the territory as against  10 other aboriginal peoples.  This is in my submission  11 part and parcel of what might be called the res gestae  12 of the overlap situation, which I say a great deal of  13 this witness' evidence goes to.  And there are other  14 reasons that I could think of why this document is  15 relevant, but those in my submission are sufficient  16 for your lordship's purpose now without taking the  17 trouble to review the other evidence to determine  18 whether -- for example, I know that Sophie Ogen has  19 appeared in the proceedings before now.  Others of  20 these names are familiar to me, but I can't say off  21 the top of my head whether they are Wet'suwet'en or  22 not.  We have Mr. Grant's statement and much evidence  23 to the effect that members of these bands include  24 people who claim to be Wet'suwet'en as well as people  25 who claim affiliation with the Carrier/Sekanni, and I  26 would urge your lordship at this particular moment to  27 allow Mr. Macaulay to proceed.  28 THE COURT:  Well, I am disposed to do that, Mr. Grant, because I  29 notice that this is an election to take place at  30 Grassy Plains, which is within the claim territory,  31 and I think on that basis as a minimum threshold of  32 admissibility, I would allow the evidence to be  33 adduced.  34 MR. MACAULAY:  I'd say, my lord, that Eileen Andrew, number five  35 Omineca band, was a -- swore a territorial affidavit  36 as Jimmy Andrews' daughter.  37 THE COURT:  Yes.  Of course she was ruled ineligible, wasn't  38 she, in this election?  39 MR. MACAULAY:  In that particular election.  4 0 THE COURT:  Yes.  41 MR. MACAULAY:  But she is a plaintiff.  42 THE COURT:  All right.  You may proceed.  4 3 MR. MACAULAY:  44 Q   Were you present at this meeting?  45 THE COURT:  I think he was.  46 A   Yes, I was.  4 7 MR. MACAULAY: 22889  R. Mclntyre (for Canada)  In Chief by Mr. Macaulay  1 Q   And who took these minutes?  2 A   It was -- it was probably my assistant.  3 Q   Do you recognize the typing?  4 A   Yes.  It was certainly our office typewriter that  5 typed them.  6 Q   Okay.  Now, this -- this was a contested election, was  7 it?  8 A   Yes.  9 Q   Was that common?  10 A   Yes.  11 Q   And you make reference in the bottom of the first page  12 to the importance of electing a good band council  13 because band councils were taking on more  14 responsibilities.  Was that the case that the band  15 councils were taking on more responsibilities?  16 A   Oh, yes indeed, yes.  Uh-huh.  17 Q   And was that your policy in dealing with the various  18 bands and getting them to take on more  19 responsibilities?  20 A   To the extent that they wanted to do this, to the  21 extent that they felt competent to do it, yes.  22 Q   By this time was the Omineca band drawing its own  23 budget, this is August of 1967?  24 A   I believe they were.  To the best of my recollection  25 they were.  26 Q   The chief was Mary Jane Morris at that time?  27 A   Yes.  28 Q   That was the lady that was catching the whitefish?  2 9 A   Right.  30 Q   Did you know all these people who are listed as  31 present?  32 A   Yes.  33 MR. MACAULAY:   Those are my questions on that document, my  34 lord.  35 THE COURT:  Thank you.  36 MR. MACAULAY:  Next is tab 7 is the first of a series of  37 documents concerning Mathew Sam.  Your lordship has  38 heard -- this is Noralee Mathew Sam.  Your lordship  39 has heard a good deal about Noralee Mathew Sam.  And  40 tabs 7 to 16 deal with his estate, particularly with  41 his trapline.  42 MR. GRANT:  I have a submission to make with respect to this, my  43 lord.  4 4 THE COURT:  Yes.  4 5 MR. MACAULAY:  I expected it.  46 MR. GRANT:  The Provincial defendant to my recollection tendered  47 tab 7 as an exhibit and it is an exhibit in the 22890  R. Mclntyre (for Canada)  In Chief by Mr. Macaulay  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  THE COURT  MR. GRANT  THE COURT  cross-examination of Mr. -- of Mr. Morris, but as my  friend has indicated, this is one of a series --  Mr. Roy Morris?  Roy Morris, yes.  Exhibit 670A-2.  But this is --  67 0A-2.  Yes.  Yes.  All right.  My lord —  Are you going to be some time on this, Mr. Grant?  Would it be better if we had the adjournment now?  Sure.  Yes, I will be some time on the submission,  my lord.  All right.  We will take the morning adjournment  now.  (PROCEEDINGS ADJOURNED PURSUANT TO MORNING BREAK)  I hereby certify the foregoing to be  a true and accurate transcript of the  proceedings herein to the best of my  skill and ability.  Laara Yardley, Official Reporter,  United Reporting Service Ltd. 22891  Submission by Mr. Grant  In Chief by Mr. Macaulay  1 (PROCEEDINGS RECONVENED AT 11:30 A.M.)  2  3    THE REGISTRAR:  Order in court.  4 THE COURT  5 MR. GRANT  6 THE COURT  7 MR. GRANT  Yes, Mr. Grant.  Thank you, my lord.  We are talking about tab 7, are we?  Tab 7 and through to tab 16, I think is the numbers  8 my friend referred to, which are correspondence and  9 material taken out of estate files.  10 My friends have also delivered to myself three  11 volumes called "A Wills Collection" taken out of  12 estate files, and an affidavit of another witness.  13 And it appears, though my friends advise me they  14 intend to introduce these through this witness, that  15 is these ones and others, and I submit that it is time  16 to grapple with the issue that that raises.  17 My lord, I would like to start by referring you --  18 and I don't have it in the tab, I apologize, but I  19 didn't have volume 10 available at the time I was  20 preparing the authorities.  Volume 10 of the  21 transcript in which Mr. Macaulay first endeavoured to  22 introduce estate files at page 575, and I objected at  23 that time, and I raised that these documents were  24 private files, personal files, and asked that they not  25 be -- that they be protected, that is, that they not  26 be published.  And the court asked if it's a public  27 document, and I stated:  28  29 MR. GRANT:  No.  It's our position it's not a  30 public document.  31 MR. MACAULAY:  I have no objection to whatever  32 protection my friend seeks for his  33 clients if indeed he is acting for anyone  34 who has present interest in this estate.  35 But I could tell Your Lordship that  36 these -- a lot of this material, and  37 certainly the material that I am now  38 producing to the witness, is the kind of  39 material you would find in a probate  40 file.  41 THE COURT:  That's why I was wondering if it was a  42 public document anyway.  43 MR. MACAULAY:  And the Minister — the Department  44 of the Minister sort of acts as a court  45 of probate, in fact their functions under  46 the Act are also identical to that of a  47 court of probate in regard to Indian 22892  Submission by Mr. Grant  In Chief by Mr. Macaulay  1 estates.  2 THE COURT:  These wills are not probated through  3 the Supreme Court?  4 MR. MACAULAY:  No, they are not.  5  6 And I go on to say:  7  8 MR. GRANT:  And, My Lord, I may say that unlike a  9 will that is probated through the Supreme  10 Court, until my friends disclose these on  11 their list of documents, we were unable  12 to obtain access to them.  They were not  13 public, they were kept in the -- and the  14 position of the Departmental officials  15 were they were not for public disclosure  16 and not to be released to any member of  17 the public.  18  19 And of course I say including the plaintiffs, even if  20 they were descendants.  21 The court says:  22  23 THE COURT:  All right.  Well, a policy question is  24 certainly involved here.  It's generally  25 accepted that litigation should be  26 open -- as open as possible, and that  27 matters that are dealt with in litigation  28 are generally speaking, not protected  29 from even curious scrutiny.  It may be  30 that I'll have to make a definitive  31 ruling on this question in due course.  I  32 think for the time being no harm would be  33 done if I accede to Mr. Grant's request  34 for the time being, and order that this  35 exhibit and others of this kind that come  36 along, and which are specifically  37 mentioned by counsel, are -- are not open  38 to inspections for the time being.  And  39 when a volume of them arises sufficient  40 to get a sense of what's involved in the  41 matter, then it may be, as I said, that  42 I'll have to rule definitively.  But for  43 the time being, this exhibit which will  44 be Exhibit 13, will not be open to public  45 scrutiny.  46  47 And we are relying on that ruling.  Certain other 22893  Submission by Mr. Grant  In Chief by Mr. Macaulay  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  wills have gone in but they've gone in on a sporadic  basis.  But we are now coming to the point, my lord,  where I am asking -- I am making a submission, which I  submit these should not go in.  Now --  MR. MACAULAY:  I should say, my friend put in a will, which is  discussed at volume 22 of the transcript.  MR. GRANT:  My lord, Canada is in a peculiar situation here, and  I may say that the disclosure of these files and the  utilization of them by the Attorney General of Canada  is the condoning of, what I would say action that is  close to, if not a breach of, trust by Canada.  THE COURT:  But that's never been a concept that stood in the  way of admissibility.  MR. GRANT:  I would say, my lord, my submission will be that  there are good public policy reasons for your lordship  not to allow the second defendant to rely on these  documents, based on their fiduciary obligations.  If you refer to tab 1, my lord, which sets out the  statutory provision of descent of property in the  present Indian Act, section 42 sets out that:  42. (1) Unless otherwise provided in this Act,  all jurisdiction and authority in relation to  matters and causes testamentary, with respect  to deceased Indians, is vested exclusively in  the Minister, and shall be exercised subject to  and in accordance with regulations of the  Governor in Council.  The Minister, my lord, has at the present time and  since, I dare say -- I went back as far as 1906  because I don't believe any of these documents would  pre-date that -- but from -- from -- this type of  legislation has been in place since 1906 and I believe  even in the earlier legislation of the Indian Acts.  And the Section 43 provides the powers of the  Minister without restricting the generality of Section  42:  43. ...the Minister may  (a) appoint executors of wills and  administrators of estates of deceased Indians,  remove them and appoint others in their stead;  (b) authorize executors to carry out the terms  of the wills of deceased Indians;  (c) authorize administrators to administer the 22894  Submission by Mr. Grant  In Chief by Mr. Macaulay  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  property of Indians who die intestate;  (d) carry out the terms of wills of deceased  Indians and administer the property of Indians  who die intestate; and.  (e) make or give any order, direction or  finding that in his opinion it is necessary or  desirable to make or give with respect to any  matter referred to in section 42.  Section 44 allows that a court could have  jurisdiction if the Minister consents, 44.(1), but  otherwise, the court does not have jurisdiction.  There is no dispute, I don't believe, from Mr.  Macaulay, from the Federal Crown, that any of these  wills, any of these files are probated.  They are not  in the public record.  MR. MACAULAY:  A few are.  MR. GRANT:  And to the extent that wills are probated, of  course, that they could be put in through the --  through the court record.  And that's, of course, not  the area of dispute.  Section 45 (3) states that:  (3) No will executed by an Indian is of any  legal force or effect as a disposition of  property until the Minister has approved the  will or a court has granted probate thereof  pursuant to this Act.  And Section 46 gives the Minister the power to  declare any will void.  Section 47 on the next page, my lord, of the 1970  Indian Act.  THE COURT:  There are conditions attached to declaring the will  null and void, are there not?  MR. GRANT:  Yes.  If he was satisfied of any of those matters.  And the final one is that "the terms of the will are  against the public interest."  Yes.  It gives him those powers to declare it  void under certain conditions.  THE COURT:  Yes.  MR. GRANT:  But while I would -- well, I would say his power is  quite broad, let me say that.  There is a provision for appeal under Section 47,  an appeal to the Exchequer Court.  And from my review  of the material, none of this comes out of the  Exchequer Court, so that issue that documents would 22895  Submission by Mr. Grant  In Chief by Mr. Macaulay  1 come out of the courts is not applicable except with a  2 few exceptions.  3 Now, my lord, the second tab -- and I am not  4 going to go through it except to refer you to the 1906  5 Act, Sections 25 through 31; the -- and that goes up  6 to page 185 -- the 1927 Act, Section 25 through 33,  7 that's pages 251 through to pages 254; the 1951 Act,  8 Sections 42 through 46, pages 326 through to 328; and  9 the 1952 Act, pages 371 through to 374, Sections 42 to  10 46, are all provisions similar -- they are not -- the  11 '51 and '52 Act I would say are almost identical, but  12 they are all similar in the earlier Acts to the  13 legislation that we have.  14 MR. MACAULAY:  May I interrupt my friend for a second to ask if  15 the witness can be allowed to leave the witness box.  16 THE COURT:  Certainly.  17 MR. MACAULAY:  It sounds as if it's going to be a long seige.  18 MR. GRANT:  Certainly.  19 THE COURT:  Yes.  20 (WITNESS STOOD ASIDE)  21 MR. GRANT:  Now my lord, the powers of the Minister were dealt  22 with by the Supreme Court of Canada in 1975 in the  23 case of Attorney General of Canada v. Rees & Canard.  24 And I have at tab -- I've just given you the entire  25 decision, but I have at tab 3 the relevant pages of  26 the Attorney General of Canada v. Rees & Canard.  27 Now, in that case, an Indian who was registered  28 pursuant to the Indian Act was killed by a car, and  29 the Minister of Indian Affairs appoint -- appointed  30 the local Indian agent, superintendent, as the  31 administrator, and the widow opposed that and said --  32 there were a couple of grounds of argument, one  33 including that he was not ordinarily resident on the  34 reserve, and they found -- the court found he was.  35 And the other was whether or not this was contrary to  36 the Bill of Rights.  But in the course of dealing with  37 that issue -- and they found that these provisions  38 were not contrary to the Canadian Bill of Rights as  39 discriminatory on the basis of race.  Mr. Justice  40 Martland at page 12, which is at tab 3, my lord, says  41 at the very bottom with respect to the Indian Act:  42  43 Section 91(24) of the B.N.A. Act, 1867,  44 gave to the Parliament of Canada exclusive  45 legislative authority over the subject of  46 "Indians, and Lands reserved for the Indians."  47 Pursuant to this authority Parliament has 22896  Submission by Mr. Grant  In Chief by Mr. Macaulay  1 enacted the Indian Act, which establishes a  2 comprehensive regime for Indians, dealing with  3 such diverse matters as the possession of lands  4 in reserves; the surrender of reserve lands;  5 wills; the distribution on property on  6 intestacy; mentally incompetent Indians; the  7 administration of property of infant children;  8 loans to Indians; schools; and enfranchisement.  9 The provisions of the Act dealing with  10 wills and estates provide a scheme for  11 testamentary capacity and for the  12 administration of estates.  It is characterized  13 by a discretionary and supervisory jurisdiction  14 in the Minister of Indian Affairs rather than  15 in the courts.  16  17 And as you can see in the full decision, Justice  18 Martland in a relatively brief reasons goes on to  19 agree with the leading judgment in the case, which is  20 that of Mr. Justice Beetz.  21 And I have just, in this extract, included page  22 26 of Mr. Justice Beetz, and the following pages are  23 all Mr. Justice Beetz -- Beetz I should say, of the  24 Supreme Court of Canada.  And he states -- Justice  25 Beetz states that -- the second last -- the last full  26 paragraph:  27  28 We are not called upon to decide the  29 constitutional validity of ss. 42 et seq. in  30 all their substantive and jurisdictional  31 ramifications.  Yet, for the purposes of this  32 case, I find myself in agreement with the  33 general propositions that testamentary matters  34 and causes with respect to deceased Indians  35 come within the class of subjects of "Indians  36 and Lands reserved for the Indians" and that  37 Parliament can constitutionally oust the  38 jurisdiction of provincial courts in these as  39 well as in other federal matters and vest it in  40 a federal agency, subject perhaps to an obvious  41 qualification: while Parliament has the power  42 to establish courts for the administration of  43 the laws of Canada, it does not necessarily  44 follow that it can clothe a Minister, or any  45 official or board of a non-judicial nature,  46 with all the functions of a superior court; the  47 powers of Parliament are limited by the wording 22897  Submission by Mr. Grant  In Chief by Mr. Macaulay  of s. 101 of the B.N.A. Act as well as by the  federal and fundamental nature of the  constitution which implies an inherent and  entrenched jurisdiction in the courts to  adjudicate in constitutional matters.  The court then goes on to say:  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  However, the power to appoint an  administrator of the estate of persons who have  died without leaving a will is not one which  must necessarily be assigned to a court.  And he goes on to summarize the history.  And  about ten lines from the bottom of that same paragraph  he says:  This power is quasi-administrative in its  purpose.  It involves a substantial degree of  discretion although such discretion must be  exercised judicially.  In a matter of exclusive  federal competence, such as "Indians and Lands  reserved for the Indians" there is nothing  unconstitutional in Parliament excluding the  authority of provincial courts over this  subject and bestowing it upon a Minister,  particularly if it makes it subject to a form  of judicial control as is provided by s. 47 of  the Indian Act.  THE COURT:  That's the appeal to the Exchequer Court, is it?  MR. GRANT:  That's correct.  On the next page that I photocopied, page 32,  again it's Mr. Justice Beetz, he states:  In bestowing upon a Minister --  The first full paragraph.  -- rather than upon a provincial surrogate  court the power to appoint an administrator to  the estate of a deceased Indian, the Indian Act  evidently creates for Indian estates a forum  which differs from the forum which would be  competent in other testamentary causes.  But in  my view, the establishment of a special forum  does not of itself entail a form of undue 2289?  Submission by Mr. Grant  In Chief by Mr. Macaulay  1 discrimination.  2  3 And there, of course, he is dealing with the Bill of  4 Rights challenge.  5 He concludes at the bottom of that paragraph,  6 about eight lines up:  7  8 Furthermore, the power bestowed upon the  9 Minister by the Indian Act to appoint  10 administrators of Indian estates, given its  11 nature and history, is a power perfectly  12 capable of being exercised by him in a judicial  13 or quasi-judicial manner, under judicial  14 control, in accordance with the due process of  15 law and with standards applicable to other  16 Canadians as well as with all the requirements  17 of the Canadian Bill of Rights.  18 I see nothing in ss. 42 and 43 of the  19 Indian Act which prevents the Minister from  20 exercising in this manner the surrogate power  21 devolved upon him.  22  23 And finally at page 34, two pages over, in the  24 line from the bottom, he compares it to see if there  25 is equality by the parallel provisions in provincial  26 law.  And this was a Manitoba case out of Manitoba, so  27 he says:  28  29 In referring to the Manitoba Surrogate  30 Courts Act and to the statute of 1529, c. 5, I  31 should not be taken to mean that the Minister  32 was bound by the Canadian Bill of Rights to  33 adhere to all the provisions of such laws  34 which, again, I quote as purely illustrative of  35 a relatively general practice.  36  37 And the court concluded that those provisions were not  38 contrary to the Bill of Rights.  39 Now, what the Supreme Court of Canada said in  40 this that is relevant or has a bearing here, my lord,  41 is that the -- the authority to administer estates and  42 the discretion and the power is properly in the hands  43 of the Minister.  Now, the practice, of course, is  44 that the Minister takes those estates, takes these  45 matters in hand, and then it deals with it in a  46 confidential and not a public forum.  47 Now, I come now to the issue of the trust -- and I 22899  Submission by Mr. Grant  In Chief by Mr. Macaulay  1 may say this, my lord, the Minister isn't just acting  2 like a court here, the Minister is acting as -- in a  3 way as legal counsel for the estate.  The Minister  4 takes everything into the file and deals with all  5 matters in the file.  And it's a parallel not to just  6 getting out of the file what would go into the probate  7 file, but it's -- the parallel is of taking the  8 lawyer's file of the client, of the estate as well.  9 And so those things are lumped together.  10 Now, I refer you to tab 4, my lord, and that is  11 the Guerin decision with which your lordship is  12 familiar, and I photocopied from Mr. Justice  13 Dickson's -- then Mr. Justice Dickson and now Chief  14 Justice Dickson's decision at page 494 where he sets  15 out the fiduciary relationship.  And he quotes that  16 that is a question of the Crown's obligation, and he  17 states -- and of course he is referring here to the  18 reserve, issues of reserve lands, but he is dealing  19 with the nature of the Crown's relationship to Indians  2 0 under the Indian Act.  And he says in the middle  21 paragraph there, page 494:  22  23 In my view, the nature of Indian title and  24 the framework of the statutory scheme  25 established for disposing of Indian land places  26 upon the Crown an equitable obligation,  27 enforceable by the courts, to deal with the  28 land for the benefit of the Indians.  This  29 obligation does not amount to a trust in the  30 private law sense.  It is rather a fiduciary  31 duty.  If, however, the Crown breaches this  32 fiduciary duty it will be liable to the Indians  33 in the same way and to the same extent as if  34 such a trust were in effect.  35  36 Now then, at page 5 -- this is the section of the  37 decision dealing with this, and he summarizes the  38 nature of Indian title and section 109.  And at page  39 500 he has a sub-heading, "The Crown's Fiduciary  40 Obligation", and he deals with that in relation to the  41 Proclamation of 1763.  And then he states at the top  42 of page 501:  43  44 This discretion on the part of the Crown,  45 far from ousting, as the Crown contends, the  46 jurisdiction of the courts to regulate the  47 relationship between the Crown and the Indians, 22900  Submission by Mr. Grant  In Chief by Mr. Macaulay  1 has the effect of transforming the Crown's  2 obligation into a fiduciary one.  Professor  3 Weinrib maintains in his article "The Fiduciary  4 Obligation" [citation given] that "the hallmark  5 of a fiduciary relation is that the relative  6 legal positions are such that one party is at  7 the mercy of the other's discretion."  8  9 Now, that's exactly what happened in the case of  10 Mrs. Canard.  She was at the mercy of the discretion  11 of the Minister, and the Supreme Court of Canada held  12 that that was proper in those circumstances.  13  14 Earlier, at p. 4, he puts the point in the  15 following way:  16  17 "[Where there is a fiduciary obligation] there  18 is a relation in which the principal's  19 interests can be affected by, and are therefore  20 dependent on, the manner in which the fiduciary  21 uses the discretion which has been delegated to  22 him.  The fiduciary obligation is the law's  23 blunt tool for the control of this discretion."  24  25 I make no comment upon whether this  26 description --  27  28 This is, of course, out of the quote and Mr. Chief  29 Justice Dickson's comments at that stage.  30  31 I make no comment upon whether this  32 description is broad enough to embrace all  33 fiduciary obligations.  I do agree, however,  34 that where by statute, agreement, or perhaps by  35 unilateral undertaking, one party has an  36 obligation to act for the benefit of another,  37 and that obligation carries with it a  38 discretionary power, the party thus empowered  39 becomes a fiduciary.  Equity will then  40 supervise the relationship by holding him to  41 the fiduciary's strict standard of conduct.  42  43 That, my lord, is what the situation that the  44 Minister of Indian Affairs, as official of the Federal  45 Crown, is in, in the relationship relating to Indian  46 estates.  It's a fiduciary relationship.  47 THE COURT:  Well, let's assume that's so.  Let's assume that 22901  Submission by Mr. Grant  In Chief by Mr. Macaulay  1 there is a relationship which might be termed a  2 general fiduciary relationship rather than the kind  3 that Mr. Justice Dickson was dealing with, because he  4 was dealing with a fiduciary duty that has no close  5 resemblance to what we are talking about.  But let's  6 assume the reason, there is general fiduciary duty.  7 That -- that is what determines what the obligations  8 of one would be towards the other.  Then superimpose  9 upon that an action by an Indian against the Minister.  10 You say that that kind of a fiduciary duty would  11 preclude the Minister from using documents or notice  12 of conduct which came to the Minister in the courts of  13 that relationship in defence of the claim brought  14 against the Minister by the Indian?  15 MR. GRANT:  Well, I think that it would have to be determined in  16 particular circumstances as a balancing.  But there is  17 two -- with respect to the analogy that you raise, my  18 lord, there is two -- there is certain assumptions  19 that don't apply.  And the first one that I want to  20 emphasize is, of course, in this case, these  21 plaintiffs have not brought an action against the  22 Minister or the Federal Crown.  They have not done  23 that.  There is no claim again the Federal Crown and  24 there has not been.  25 THE COURT:  Well, I understand — I must say that the tide has  2 6 come in and gone out on this a number of times, but I  27 thought that you were claiming that you had -- your  28 clients had the superseding jurisdiction and control  29 over all the lands within the territory.  30 MR. GRANT:  We made that claim and I argued that in February of  31 '88, and I referred you to that the other day.  But  32 your lordship made it clear that such a claim,  33 vis-a-vis the Federal Crown, could not be made without  34 express amendment, and no such amendment has been  35 made.  So the argument that I made at that time by  36 implication of what your lordship has said, cannot  37 apply to the federal lands.  It's a claim -- and my  38 friends raised then, and I think they even uttered it  39 on Friday, that there would be a jurisdictional  40 challenge if that's what we endeavour to do in this  41 court.  But be that as it may, that's academic.  42 THE COURT:  Well, all right.  Go to the next step and say that  43 the Indians claim again the province, and the province  44 claims over against the Federal Crown, and the Federal  45 Crown in defending itself says, "Your claim against  46 the province is no good."  And in support of that,  47 that -- and it's in the Federal Crown's interest to 22902  Submission by Mr. Grant  In Chief by Mr. Macaulay  1 establish that, because without success by the  2 plaintiffs there is nothing for the Federal Crown to  3 answer and then claim over.  And so the Federal Crown  4 says, "All right.  In order to defeat the plaintiffs'  5 claims I am entitled to rely upon the deeds and acts,  6 A-C-T-S, of the Indians as best I can."  Why isn't  7 that open to him without, it seems to me, affecting  8 the fiduciary interest of the Indians, except to the  9 extent of confidentiality, I suppose?  10 MR. GRANT:  Well, my lord, it's a peculiar situation, and if an  11 Indian person, an individual appealed his estate --  12 THE COURT:  I agree, Mr. Grant it's unusual.  But your witnesses  13 were at great pains to establish in their case that  14 they lived and conducted themselves according to  15 Gitksan or Wet'suwet'en law and custom and tradition.  16 Why isn't it competent for a party to show that in  17 some respects they do not?  18 MR. GRANT:  Well, I think that in the cross-examination of the  19 witnesses by the Federal Crown to the extent that  20 these things are relevant, they questioned them on  21 these issues.  But my lord, what I was about to say  22 about the peculiarity of this situation is this:  In  23 this case, the fiduciary, the person with the  24 fiduciary obligation is utilizing, taking advantage of  25 the statutory fiduciary relationship to the detriment  26 of the beneficiary.  27 THE COURT:  Surely the fiduciary relationship only relates to  28 the administration of the estates.  29 MR. GRANT:  But my lord, the plaintiffs could never have  30 accessed these materials.  The plaintiffs were denied  31 access to these very materials.  And the person in  32 charge of these materials declined to give them to the  33 Attorney General of Canada until so directed by the  34 Minister of Indian Affairs, because these files were  35 kept in confidence.  They were files that were not  36 open even to the descendants of the deceased persons.  37 And here we have a situation in which the Federal  38 Crown is expressly taking advantage of the fact that  39 it has a statutory control over these estates, thereby  40 it can accumulate these estate files, and now it can  41 use those directly against the descendants of these  42 same parties.  43 THE COURT:  Well, that's a matter that I can understand why the  44 Indians or some of them subjectively would regard that  45 as an outrage.  But that's never been a test for  46 admissibility.  The test for admissibility is  47 relevance, and parties are not -- it's not unusual for 22903  Submission by Mr. Grant  In Chief by Mr. Macaulay  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR. GRANT  THE COURT  MR. GRANT  THE COURT  MR. GRANT  a party to say, "Well, I'm claiming privilege or  protection or confidentiality for a document until the  time comes to use it in court.  And when that time  comes I'll make up my own mind whether or not to use  it.  But in the meantime, I'm going to treat it as  confidential or privileged or both."  And normally a  court then could order the document can be produced.  I don't have much doubt that if anybody had applied in  chambers before trial to get this information it  probably would have been ordered to be produced.  The Minister is entitled to take the position he  took regarding confidentiality, if such was his wish,  or he could have claimed privilege for all.  I know  I'm not sure on what basis it could be said to be  privileged, but he could certainly have claimed  confidentiality.  But if it's relevant to the issue --  to an issue in this case, and it seems to me that it  is, that is because the Indians have themselves set up  as part of their case, both in pleadings and in  evidence, that they govern their affairs by Gitksan  law.  :  Well, the impact of that -- my lord, it was -- a  similar issue was raised, and I refer to it at tab 6,  by Miss Koenigsberg regarding the O.N.C.  :  Sorry, the O.N.C.  What's the O.N.C?  :  Offensive native claims in the Kwakiutl claims, and  she states:  MS. KOENIGSBERG:  Strictly speaking, my submission  on this subject is not merely its  relevance, but rather the confidential  nature of the process, and that document  weighed against its relevance.  And of course your lordship found --  :  Yes.  :  -- that the confidentiality overrode the issue of  relevance.  Now, what I'm suggesting here -- or urging upon  your lordship here, is that the impact of the Federal  Crown being able to disclose these in the court is a  breach of their fiduciary obligation to those persons  whose estates they are dealing with, and that this  court should not accept that.  This court should not  condone that conduct.  It gives them a benefit.  It  gives them a benefit, my lord, and I dare say it gives  the province a benefit to which it was not entitled. 22904  Submission by Mr. Grant  In Chief by Mr. Macaulay  1 THE COURT:  It does nothing more than allow them to show what  2 the Indians did.  3 MR. GRANT:  But this witness can describe what the Indians did.  4 The tendering of the wills and the estate files is not  5 necessary for that.  The witnesses were cross-examined  6 as to what they did.  They were cross-examined.  You  7 may recall there was a great exchange about the farm  8 with respect to Mrs. Johnson, and that that points --  9 it was your lordship who raised the questions and it  10 was raised about the different types of property held,  11 if you recall.  And at that point, I thought that this  12 issue was -- was side-stepped in the sense that it was  13 not necessary.  But here, the impact of tendering over  14 200 wills, I say, is not necessary and is not -- in  15 this place, confidentiality and the fiduciary  16 obligation should be given precedence over that.  17 THE COURT:  Well, it may be that in the common course of events  18 in a case like this there would be an admission and it  19 wouldn't be necessary to put in 200 wills.  But I  20 don't see much sign of admissions being made in this  21 case.  It seems to me to be relevant, if such is the  22 case, that 200 plaintiffs have purported to dispose of  23 property that is said to be communal.  But I don't  24 know if that's the case or not, and that seems to me  25 that it would be relevant if the evidence showed that.  26 And if you didn't want the details to be made  27 available by -- for reasons of confidentiality, then I  28 would have thought there would have been an admission.  29 MR. GRANT:  Well my lord, I submit that the Federal Crown in its  30 particular position and its statutory power under the  31 Indian Act is taking advantage of that to the  32 detriment of the very beneficiaries it's supposed to  33 be giving.  This is not something that has ended, of  34 course, with the litigation.  The statutory power and  35 authority of the Federal Crown with respect to Indian  36 estates is ongoing and you have, I believe, tendered  37 here, the estate of Albert Tait and others who died  38 immediately before the trial started.  In other words,  39 the plaintiffs, the Indian people have no way out of  40 this situation, and the Federal Crown can continue to  41 take advantage.  42 THE COURT:  But I can't concern myself with that.  It seems to  43 me that this falls within that general category of  44 cases that Mr. Justice Martland described in Regina  45 v. Wray where he said that yes, it's -- yes, it's  46 prejudicial, most of the Crown's evidence in this case  47 is prejudicial, but the question is, is it unfairly 22905  Submission by Mr. Grant  In Chief by Mr. Macaulay  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  MR.  GRANT  26  THE  COURT  27  MR.  GRANT  28  29  THE  COURT  30  MR.  GRANT  31  32  33  34  35  36  THE  COURT  37  MR.  GRANT  38  THE  COURT  39  40  41  MR.  PLANT  42  43  THE  COURT  44  MR.  GRANT  45  THE  COURT  46  47  MR.  GRANT  prejudicial?  And "unfairly" in that context means is  it legally prejudicial?  It isn't prejudicial just  because it's evidence against a party, it's got to be  more than that.  And while you may characterize the  conduct of the Federal Crown any way you choose to, it  doesn't seem to me that that's a matter that I can pay  any attention to.  I have to deal with the question of  the relevance, and if the Crown has the documents and  if the Crown wants to use them and if they are  relevant and if there is no statutory prohibition  against their admissibility, then I can't rewrite the  laws of evidence and say, "Well, I am going to decide  in this case that it is not admissible."  It may be  that under Wray there is -- if Wray is still good law,  which is itself doubtfu -- there is a general proviso  that says unless the evidence is of tenuous  admissibility and of trifling probative value I could  exclude it.  But I don't know that this is -- I don't  think this is a tenuous admissibility and I can't say  whether it's of trifling probative value.  And where  is my jurisdiction to say to a party who is tendering  relevant evidence, "No, you can't do that because it's  a dirty trick," if such -- and I don't say it is, but  that's what you are saying it is.  I say it's more than even a dirty trick.  Well —  In any event.  Well, I say, my lord, on the last  tab, the last page, your ruling on October 28th --  What did I say?  Well, it's your ruling with respect to the part of  the CV Of Sheila Robinson and that document.  And you  say at line 33, your ruling goes in on it that the  issues are terribly unrelated to those of this case,  and the report is an overview of the claim, a  description of some --  Oh, this is about the comprehensive claims.  That's right.  Yes.  But I took that away and I read it and it was  of -- that one certainly was of trifling probative  value.  I don't think it had any relevance at all.  Your lordship said there was absolutely nothing in  it that could in any way assist.  Yes.  Thank you, Mr. Plant.  I am not able to say that about any of these wills.  I just don't know.  Well, I am certain that you can say it about a lot 22906  Submission by Mr. Grant  In Chief by Mr. Macaulay  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  of these wills, but I don't think that the approach --  I'm not suggesting here the approach is to give them  to you and have you make that ruling, that's not  the -- I don't think that's the appropriate approach  in the circumstances.  But I say that -- you say that:  ...1 ought not to order its production, not  because it is privileged, although it might be,  but not on that ground but, rather, on the  ground of a general jurisdiction to preserve  confidentiality to the extent possible without  prejudicing the trial of these issues.  And I say, my lord, that the effect of allowing  the Crown to do this in this manner is to allow them  to take advantage of their fiduciary relationship to  the plaintiffs to the detriment of the plaintiffs,  allow them to collect data, collect the information,  and to use it in any manner they see fit and --  :  Well, you can make the same argument with regard to  trapline files and --  No.  Why not?  Well, the trapline files -- for one thing, a large  part of the trapline files are provincial.  :  I'm talking about any -- you could make the same  argument with respect to any document that the federal  government has in its files relating to Indians,  couldn't you?  You could say that the Constitution  imposes a trust upon the federal government to look  after the affairs of Indians and, therefore, they  can't use any documents that come into their  possession pursuant to that trust.  :  No.  Quite simply, my lord, because if you go back  to that ruling, how Mr. Justice Dickson described that  fiduciary relationship on page 501 of the Guerin case,  he says:  ...that "the hallmark of a fiduciary relation  is that the relative legal positions are such  that one party is at the mercy of the other's  discretion."  Now, as this witness has already described, he  asked the Indians to report about their traplines.  There is no statutory obligation on them to do that.  They could and they could not, and he could take his 22907  Submission by Mr. Grant  In Chief by Mr. Macaulay  1  2  3  4  5  6  THE  COURT  7  8  9  10  11  12  13  14  15  16  17  MR.  GRANT  18  19  THE  COURT  20  21  22  23  24  25  26  27  28  29  30  31  32  33  MR.  GRANT  34  THE  COURT  35  36  37  MR.  GRANT  38  39  40  THE  COURT  41  42  MR.  GRANT  43  44  45  THE  COURT  46  MR.  GRANT  47  THE  COURT  notes about traplines or he could not.  It's not the  situation that we are in with respect to the estates.  The estates are relatively unique in this respect: the  Indian people have absolutely no choice.  They have no  choice.  They are required.  No.  But the fact that they don't have a choice,  surely doesn't in any way touch upon the question of  relevance.  Let's assume that there is a will that --  where a plaintiff said, "I am chief of such-and-such a  House.  And while it may be argued that the House  territory belongs to the House and not to me, I say  it's mine and I am not paying any attention to Gitksan  law and I bequeath that territory and all the rights  that go with it to my son John."  You couldn't  seriously argue that such an admission couldn't be  proven against that plaintiff, are you?  Well, of course if the plaintiff was alive it could  be proven through discovery.  If he was deceased --  Well, he is a predecessor of the present plaintiff  and it would -- it would be evidence which would go to  the question that the general foundation of the  plaintiffs' case, that these matters are conducted  according to Gitksan law.  And here in the example I  postulated, an Indian has made a statement against the  interest of the plaintiffs generally, that Gitksan law  governs these matters at all.  Now, surely you are not saying that because of  desirable confidentiality the court would be deprived  of -- and the parties would be deprived of highly  relevant evidence which in an extreme case might even  be conclusive.  Surely you couldn't argue that that  would be protected and that -  I think there is a way.  And that the court can be asked to deal with the  matter in an unrealistic basis in the absence of  clearly relevant evidence.  Well, there would be a way, but I say there are ways  other than that to get that evidence before the court.  And the fact of the matter --  Well, how would you get that before the court except  by proving the will?  The -- well, for example, the officers that were  involved.  I mean if such a statement was made,  that's —  I mean made in a will.  In a will?  Of a deceased person. 2290?  Submission by Mr. Grant  In Chief by Mr. Macaulay  1  MR.  2  3  THE  4  5  6  7  8  9  10  11  12  13  MR.  14  15  16  17  18  19  THE  20  21  22  23  24  25  26  27  28  29  MR.  30  31  THE  32  33  34  MR.  35  MR.  36  MR.  37  38  39  40  41  42  43  MR.  44  45  THE  46  47  GRANT:  Of some time.  Well I mean, I submit there may be a  way in weighing fact, my lord.  COURT:  Well, there is a weighing factor with any evidence  that goes in.  These will be weighed.  I mean I look  at this first one, only one I have -- only one I've  really seen.  I'm not sure that it's unequivocal.  "All my property of every nature and kind and  wheresoever situate."  If it's said that Matthew Sam  was a hereditary chief and he had territory, I am not  sure that that -- that would be an admission against  the position for which you contend anyway, because one  could say it wasn't his property.  GRANT:  Well, when you go on beyond that of course, my lord,  that will -- that particular will was put in under the  ambit of your ruling in the Roy Morris cross-  examination out of court, and I -- but you get the  application for administration, you get approvals of  the wills, you get all of the file begins to --  COURT:  Well, the reality is, Mr. Grant, that facts are  facts and unless they are excluded and then subject to  relevance they are admissible.  It may be that Mr. Sam  hasn't helped your case any or his beneficiaries  haven't helped the case any, but that's -- that's just  part of the process.  Usually these things don't --  aren't conclusive and I doubt if any of these are.  But as a matter of admissibility, I have very little  difficulty with this.  Does he make a declaration here  about the land?  GRANT:  Well, I'm sure my friend is saying he makes  declarations about all kinds of things.  COURT:  I'm looking at the land interest and it says "No  formal land allotment made to Matthew Sam."  Doesn't  look like he had any land.  GRANT:  That's on the reserve.  MACAULAY:  He had a trapline, my lord.  GRANT:  This was exactly the kind of thing, my lord, that  you had ruled, with respect, with Mrs. Johnson, that  you didn't see that it was necessary to get to deal  with the question of the on-reserve property.  I mean  my friends have clearly revived this whole approach,  notwithstanding your understanding of the issue of the  individual as opposed to the House property.  MACAULAY:  We are not reviving the on-reserve property and  these documents show what we are dealing with.  COURT:  Oh, I see.  It does say the "deceased probably  claimed all of Tatla Indian Reserve at Noralee."  But  I suspect that that was a claim that wasn't based upon 22909  Submission by Mr. Grant  Ruling by the Court  Submission by Mr. Grant  1 Gitksan law but upon some other form of right or  2 licence under the reserve system, but I don't know.  I  3 have a terrible feeling that all this is going to come  4 to an argument about construction as to what it all  5 means, but I can't exclude it on that basis.  Save  6 yourself a lot of trouble if I could.  7 MR. MACAULAY:  We will be making no submission about the reserve  8 at Noralee.  9 THE COURT:  Yes.  10 MR. MACAULAY:  That's not the point of this at all.  11 THE COURT:  Yes.  12 MR. GRANT:  Well my lord, I submit that it — that the Federal  13 Crown here is going -- stepping over the bound and  14 they should not be allowed to utilize their trust  15 responsibility regarding Indian estates in the way  16 that they are doing it here.  I may say, my lord, that  17 of course if the Federal Crown wasn't ordered in, I  18 don't think the province could even get access.  They  19 may have under a court order, that would have been  20 argued at that point.  It wasn't necessary.  But the  21 Provincial Crown would have no independent access to  22 these estate files other than the Federal Crown, and I  23 think this first one was put in by the province, if I  24 recall rightly, on the cross-examination of Mr. Sam.  25 THE COURT:  I am sorry, Mr. Grant, I am against you on this one.  26 I do not think I have much choice.  And it is not for  27 me to characterize the decision of Crown to use this  28 or not use this.  That is their decision, and there  29 may be a political price somewhere else to pay, but  30 that is not my concern.  31 MR. GRANT:  I may say then, my lord, that I ask that all of  32 these documents coming out of these estate files be  33 dealt with as you directed with respect to Exhibit 13,  34 that these documents not be generally public  35 documents.  And that is, I am -- would submit would be  36 some minimal protection to the parties.  37 THE COURT:  Well, I have some misgivings about that, Mr. Grant.  38 My experience is that you only get in trouble when you  39 do that.  But I'll hear what your friends say about  40 that.  Perhaps it's not their concern, perhaps it's my  41 concern about maintaining the principle of open  42 proceedings.  I haven't the slightest doubt that if  43 the representatives of the media knew that I was even  44 thinking of making such an order they would be here  45 with counsel and making submissions about the collapse  46 of western civilization if any such thing was to be  47 countenanced.  And I'm surprised that at least Mr. 22910  Submission by Mr. Grant  Submission by Mr. Plant  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  Guenther would associate himself with any such  suggestion.  MR. GUENTHER:  I never said anything, my lord.  THE COURT:  I know.  But we've had some recent experience in  these matters.  I remember Mr. Justice Wood just last  week was persuaded to make such an order, and in that  somewhat controversial case, and he was persuaded half  an hour later to change his mind.  I had to deal with  that very matter in chambers this morning where an  attempt was made to have an examination of a judgment  creditor in aid of execution before the Registrar held  in camera, and I had representations from the media  who thought it was the most important case they  thought they had ever heard.  And I think the same  would apply here.  But I should hear what your friends  say.  MR. GRANT:  I am making this submission in the context in which  these files and documents have come before the court.  Yes.  And I can only say that I take it my friends are  aware of the obligations of the Federal Crown on that  matter.  Well —  And they will exercise their judgment.  Yes.  I will hear what they say.  Mr. Plant, what do you say about the question?  I  don't need to hear you on the question of  admissibility generally, but on the question of  protecting them from examination and disclosure?  MR. PLANT:  I don't support Mr. Grant's request, my lord.  Nor  can I say that I vigorously oppose it.  It presents  practical problems given the size of the record in  this case.  I do have the concern, though, that when is suits  my friend, Mr. Grant's, convenience, he does file and  exhibit wills.  And I am thinking here, for example,  of Exhibit 446-5, tendered by him during the  examination of Stanley Williams on commission.  I  don't recall my friend claiming the same protection in  respect of that document.  Presumably because he  thought it assisted his case at the time.  And in  those circumstances, those kinds of circumstances, I  would be very reluctant to support my friend's  request, and that's why I don't do so.  I would be prepared to speak to your lordship at  greater length on the point if your lordship considers  it necessary to have full submissions, this afternoon,  THE  MR.  THE  MR.  THE  COURT  GRANT  COURT  GRANT  COURT 22911  Submission by Mr. Grant  Submission by Mr. Macaulay  1 but my initial reaction is as I've stated it.  2 THE COURT:  Thank you.  3 MR. GRANT:  My lord, if I may say regarding that will, that came  4 out of a provincial -- it came -- Mr. Williams had a  5 copy of this document himself so it was properly  6 disclosable by the plaintiffs.  It wasn't something  7 from the D.I.A. files.  And it also came out of the  8 provincial trapline files and it was in their own  9 files.  So yes, there was a document that was  10 labelled, a will, but it didn't come out of this body  11 of files.  12 THE COURT:  All right.  Mr. Macaulay.  13 MR. MACAULAY:  Of course we will abide by any order your  14 lordship makes in connection -- on the question of  15 confidentiality.  The wills are -- half a dozen are  16 already marked as exhibits.  There are really two  17 documents not just one that we will seek to prove in  18 this collection of wills, not -- I am not dealing with  19 Matthew Sam at the moment.  That's a different case.  20 They are generally speaking, the will itself and a  21 document, usually the application for probate or the  22 application for administration which identifies the  23 testator, and that's the reason that it's -- we seek  24 to include it, so that your lordship will know who we  25 are dealing with, from what House, and of what  26 lineage.  We have one at tab 8 here.  That kind of  27 thing.  28 This shows -- in that case, actually, it just  29 shows as next of kin only Amelia Sam who was the  30 testator's widow.  But in most cases, it lists the  31 sons and daughters and gives the band number and so  32 on, so there can't be any doubt when you look at the  33 will and the document, who it is.  34 This witness will describe the steps that are  35 taken in connection with wills by reference to this  36 larger collection of documents from Matthew Sam of  37 Noralee.  All the wills are bound in one small series.  38 It's easy enough to make an order regarding them,  39 that's the vast majority of them, and they are  40 being -- it wouldn't be overly difficult to restrict  41 their distribution and use.  We've given them only to  42 counsel and I'm sure counsel hasn't published them, so  43 there is no harm done so far.  It might be an  44 embarrassment to the descendants of certain chiefs and  45 others that their ancestor made certain dispositions  46 in wills.  I can't think of any other harm though, of  47 a personal nature, that would cause grief.  They are 22912  Ruling by the Court  1 all people who are dead.  They are not living.  But it  2 would be easy to make an order, a particular order  3 directing the District Registrar not to release that  4 exhibit when it comes along.  We haven't marked it  5 yet.  6 THE COURT:  All right.  7 MR. MACAULAY:  May I continue with Mr. Mclntyre's evidence, my  8 lord?  9 THE COURT:  Well, I think I have to rule on your friend's  10 request.  11 MR. MACAULAY:  Oh.  Yes.  12 THE COURT:  I think that I will make an order that the will  13 material be protected from public examination until I  14 have seen some of it and have had a chance to assess  15 the true nature of the information.  16 My strong sense of legal principle here is that if  17 people want to keep things confidential they should  18 have arbitrations where they can control the  19 consequences.  And when they come to the law they have  20 to expect that it will be conducted in a broad plain  21 view.  But I do not know that it is necessary that I  22 make that decision until after I have seen some of the  23 material, after which time I will be delighted to deal  24 with it again.  25 All right.  Do you want to proceed for five  26 minutes or do you want to adjourn, Mr. Macaulay?  27 MR. MACAULAY:  Might be better to adjourn.  I'm starting on a  28 topic and I make it four minutes.  2 9 THE COURT:  Yes, four minutes.  All right.  Two o'clock.  Thank  3 0 you.  31 THE REGISTRAR:  Order in court.  Court stands adjourned until  32 two o'clock.  33  34 (PROCEEDINGS ADJOURNED AT 12:25 P.M.)  35  36  37 I hereby certify the foregoing to be  38 a true and accurate transcript of the  39 proceedings herein transcribed to the  40 best of my skill and ability.  41  42  43  44  45 Toni Kerekes, O.R.  46 United Reporting Service Ltd.  47 22913  R. Mclntyre (for Canada)  In Chief by Mr. Macaulay  1 (PROCEEDINGS RESUMED PURSUANT TO LUNCHEON ADJOURNMENT)  2  3 THE COURT:  Mr. Macaulay.  4 MR. MACAULAY:  My lord, we were at tab 7.  5 Q   Mr. Mclntyre, did you know Noralee Mathew Sam?  6 A   Yes, I did.  7 Q   And do you remember his estate being administered?  8 A   Yes, I did.  9 Q   Do you recognize that form of will in which Mathew Sam  10 bequeaths his estates to Roy Morris?  11 A   The form of the will is not the form that was provided  12 by my office for use by people in my district who  13 chose to use the Government of Canada printed form.  14 Q   Well —  15 MR. GRANT:  Well, the witness was going to answer your question.  16 Hear what he has to say.  17 MR. MACAULAY:  I was going to ask the question about the printed  18 form.  19 THE COURT:  All right.  2 0 MR. MACAULAY:  21 Q   There was a printed form?  22 A   Yes.  23 Q   That your office used?  24 A   Uh-huh.  Yes.  25 Q   And what are the circumstances underwhich your office  26 used the printed form?  27 A   For those people who would choose to seek our  28 assistance in creating a will, the Government of  29 Canada at the time had a standard printed will form  30 which was available in pad form and occasionally  31 Native people would come in and ask me or ask my  32 assistant to help them make a will.  And when that  33 occurred we would get out one of these printed forms  34 and to the extent that it was suitable we would simply  35 fill in the blanks and have them sign it and that  36 eventually that -- that will would be sent to Ottawa  37 for approval.  We would usually take the Affidavit of  38 Witness at the same time and it would be filed on our  39 agency will file.  40 Q   Did you encourage band members to make wills?  41 A  Whenever we were aware that people had assets of  42 substance, yes, we did.  43 Q   And when you encouraged those people who had property  44 to make wills, did they usually make a will?  45 A   Sometimes.  Sometimes not.  46 Q   And in dealing with old people, how did you -- did  47 they have any assistance independent of the staff of 22914  R. Mclntyre (for Canada)  In Chief by Mr. Macaulay  1 your office?  2 A   I can recall on some occasions they chose not to come  3 to our office to make their wills and I can recall on  4 at least -- on at least one occasion that upon the  5 death of an individual it was discovered by me, or my  6 staff or both, that this individual had in fact made a  7 will through an outside lawyer, and this was -- this  8 was then sent on to Ottawa.  And as I recall there  9 was -- there was consent given to the administration  10 of estate outside of my office.  11 Q   Could you turn to tab 8.  It's a form of application  12 for probate or administration with will annexed?  13 A   Yes.  14 Q   This particular one concerns Mathew Sam.  Did you have  15 anything to do with the preparation of this form,  16 filling it in?  17 A  At the time I recall that my assistant, a man by the  18 name of Walter Brown, was more involved in the  19 preparation of these kinds of forms than I was.  2 0 Q   Are —  21 A   I don't recall filling in the blanks on this form and  22 it -- my perception is that Walter Brown probably did  23 it.  24 Q   Now, the form recites that Mathew Sam died on October  25 16, 1973.  Were you still at Burns Lake at that time?  2 6 A   Yes, I was.  27 Q   And the form shows a band number.  It's in this case  28 23 of the Omineca band.  Was it your practice to  29 identify the testator in that way?  30 A   Yes.  31 Q   And where did you get that number and the band  32 designation Omineca, for instance?  33 A  Within every Indian Affairs office there is a band  34 list of people, of members of the band and they are  35 numbered.  36 Q   Was it part of your function as the superintendent to  37 either make -- fill out these forms yourself or have  38 them filled out by your staff?  39 A   Yes.  40 Q   And at the bottom of the first page there is a --  41 there is a place where Amelia Sam is shown as wife and  42 also the band number 23?  43 A   Yes.  44 Q   And a date of birth?  45 A   Yes.  4 6 Q   Did you know Amelia Sam?  47 A   Yes. 22915  R. Mclntyre (for Canada)  In Chief by Mr. Macaulay  1 Q   And was it your practice to list wives and children  2 and so on in this part of the form?  3 A   Oh, yes.  Yes.  4 Q   In this case there were no children apparently?  5 A   Right.  6 Q   And you would get the name of Roy Bernard Morris from  7 the will itself, would you?  It appears on that first  8 page --  9 A   Yes.  10 Q   -- listing Roy Morris as executor?  11 A   Right.  12 Q   Now, on the second page there is a list of property  13 and there is some comments about it.  For instance,  14 there is typed in:  15  16 "The widow will be allowed to continue to  17 occupy the dwelling."  18  19 How would that come about, that kind of information?  20 A   I don't recall the specifics of what -- of what  21 provoked that comment.  My belief is that that --  22 those comments arose out of subsequent discussions  23 with the band council who indicated that her continued  24 occupation of the -- of the home that she had shared  25 with her husband on that particular reserve would not  26 be contested by anybody else and that she would be  27 allowed to remain there for as long as she chose to do  28 so.  29 Q   Now, the following page shows various assets.  Is this  30 where you listed chattels and the like?  31 A   Yes.  32 Q   And non-reserve property?  33 A   Yes.  34 Q   And one of them appears to be a Provincial Government  35 trapline at latitude 53:50, longitude 126:20?  36 A   Yes.  37 Q   And how would you determine whether or not the  38 testator had a trapline?  39 A   I think it was a routine -- it was a routine in all  40 such cases where a person died that we would do a  41 search of our files and anywhere elsewhere we thought  42 it to be necessary to search for assets.  43 Q   You would get that information from your trapline  44 files?  45 A   That's right.  That's right.  4 6 Q   All right.  And on page four under the heading  47 "Funeral Accounts," there is a notation: 22916  R. Mclntyre (for Canada)  In Chief by Mr. Macaulay  1  2 "The Omineca Council indicate they will be  3 submitting a claim."  4  5 Do you see that?  6 A   Yes.  7 Q   Where would you get that information?  8 A   From discussions with the band council.  9 Q   And then on page five there are affidavits -- an  10 affidavit of witness, Mr. Cecil Alfred.  Did you know  11 Cecil Alfred?  12 A   No.  13 Q   And the affidavit was sworn before Kenneth Muldoe.  Do  14 you know Kenneth Muldoe?  15 A   He was the -- he was an officer of the Department of  16 Indian Affairs in Hazelton at the time.  I have met  17 him, but I have to tell you at this point in time that  18 I would probably not recognize him today.  19 Q   Now, if you turn to tab 9, there is a form entitled  20 "Approval of Will."  And it's dated January 20, 1975.  21 Where were you in 1975, what department?  22 A   I was still with the Department of Indian Affairs.  23 Q   But where were you stationed?  24 A   I was in -- I was in Prince George at that time.  25 Q   Yes.  And is -- and by that time what had happened to  26 the Babine agency?  I am sorry, the Burns Lake agency?  27 A   By that time the Burns Lake agency had been  28 amalgamated with the Stuart Lake agency.  A new larger  29 district, as they call it, had thus been created.  A  30 district called the Lakes District with headquarters  31 offices at Prince George.  And by that point in time  32 of course I had -- I had been transferred to the  33 Prince George office.  34 Q   Were you still dealing with what had at one time been  35 the Burns Lake agency?  36 A   Oh, yes.  But I was also dealing with matters relating  37 to other -- to other parts of the total lake district  38 as well.  39 Q   And what was happening to wills like Mathew Sam's  40 after this merger?  41 A   Oh.  42 Q   Which office dealt with them?  43 A   Oh, it would have been the Prince George office,  44 simply because there was no office in Burns Lake at  45 that time to deal with.  46 Q   Is this approval of will, is this standard form?  47 A   Yes. 22917  R. Mclntyre (for Canada)  In Chief by Mr. Macaulay  1 Q   And is it to your knowledge required in the case where  2 there is a will, an Indian will?  3 A   To my knowledge it was required then, yes.  4 Q   Yes.  5 A   Uh-huh.  6 Q   And when you were superintendent at Burns Lake, did  7 you see to it that the applications were made for  8 approval?  9 A   Yes.  10 Q   That was just a standard procedure?  11 A   That was part of the routine, yes.  12 Q   All right.  Now, the next tab 10 is a letter from  13 Sophie Ogen.  You've already given evidence in  14 connection with an earlier tab.  That is the bands  15 council minutes that you knew all the people present  16 and one is Mrs. Sophia Ogen.  You knew her?  17 A   Oh, yes.  18 Q   And she wrote you apparently at Prince George  19 addressed to you at Prince George in 1974.  That's  2 0              where you were then?  21 A   Yes.  22 Q   This is after the merger of the two --  23 A   Right.  24 Q   -- of these agencies.  25 A   Uh-huh.  26 Q   And there is a reference to the transfer of a trapline  27 to Roy Morris without band authorization.  Was it  28 necessary to get band authorization in these  29 circumstances for the transfer to Roy Morris of Mathew  30 Sam's trapline?  31 A   It was not necessary in my opinion at that point in  32 time.  And I say that because it was apparent that the  33 Provincial Fish and Wildlife Branch had jurisdiction  34 over all wildlife matters in the Province and was  35 simply -- simply a matter of getting their approval  36 rather than the band's council -- rather than the band  37 council's approval.  38 Q   And there is a reference to Mrs. Christine Holland.  39 Do you remember her?  Did you know Mrs. Christine  40 Holland?  41 A   Since this event I have become acquainted with  42 Christine Holland, but at the time that this was going  43 on I was not acquainted with her.  44 Q   So you didn't speak to her about this issue?  45 A   No.  No.  46 Q   And then you received that letter?  47 A   It appears so, yes. 2291?  R. Mclntyre (for Canada)  In Chief by Mr. Macaulay  1 Q   And here is a letter -- well, it's the carbon copy in  2 the next tab, tab 11, of a letter addressed to Mrs.  3 Sophie Ogen at Burns Lake.  Do you remember sending  4 Mrs. Ogen such a letter?  5 A   Yes, I do.  6 Q   And this had to do with Mathew Sam's trapline?  7 A   Yes, and Mathew Sam's estate --  8 Q   Yes.  9 A   -- generally, yes.  10 Q   Yes.  11 MR. GRANT:  I just want to note, my lord, I was under the  12 impression from how Mr. Macaulay led the evidence,  13 that this witness was the -- who was the  14 superintendent of the Burns Lake agency moved over and  15 remained a superintendent, and it appears that this  16 witness from tab 10 is the economic development  17 officer, from tab 11 is the district real estate  18 officer, neither of which in my understanding is the  19 superintendent at this time and therefore wouldn't  20 necessarily be in charge of all the estate files.  I  21 just wonder if my friend can clear up what he was when  22 he moved to Prince George by asking him a question.  2 3    MR. MACAULAY:  24 Q   When you moved to Prince George were you the district  25 real estate officer?  26 A  My title in Prince George immediately following my  27 transfer there was not -- was not terribly clear to me  28 or anybody else to the best of my recollect.  And I  29 say that because I had been superintendent of the  30 Burns Lake -- of the Burns Lake agency.  Upon  31 amalgamation of the two agencies I was obviously the  32 junior superintendent and my duties there for a period  33 of time consisted of a wide variety of things and it  34 was only after I had been in Prince George did I seem  35 to acquire a title pertaining to anything at all  36 specific.  37 Q   Well, when you got to Prince George were you still  38 dealing with estates like the Mathew Sam estate?  39 A   I probably was because of my background knowledge of  40 such things that I brought with me from the Burns Lake  41 area.  42 Q   And now, Mrs. Ogen addresses you as the economic  43 development officer.  This is in her 1974 letter at  44 tab 10.  Were you the economic development officer at  45 Prince George by 1974?  46 A   I don't believe I was.  I believe another person was  47 in fact an economic development officer, but it must 22919  R. Mclntyre (for Canada)  In Chief by Mr. Macaulay  1 have been terribly confusing to the Indian people in  2 Burns Lake at the time just exactly who I was and how  3 I was to be addressed.  So I think you would have to  4 forgive Mrs. Ogen for any -- any mistitle that she may  5 have given me at the time.  6 Q   But you were district real estate officer when you  7 answered her?  8 A   Yes.  9 Q   And what did that involve, being the district real  10 estate officer?  11 A  Well, most all things involving Indian land, and I  12 suppose the reason that I was also, you know,  13 answering to estate matters was that often, very often  14 these estate matters would involve land and therefore  15 come to the attention of the district real estate  16 officer.  17 Q   I hope that satisfies my friend's enquiring turn of  18 mind, my lord.  19 Now, tab 12 is a letter from -- addressed to you  20 by Roy Morris and it starts -- in January 14, 1974,  21 and it starts with the words:  22  23 "Just a line to say that I am sending you the  24 will paper of late Mathew Sam and now the  25 people like Christine Holland of Houston try to  26 take back the trapline which they will never  27 get back because Mathew told me to look after  2 8 it and he made a will for me. Now the  29 non-status Indians like Sarah Layton of Prince  30 George and Elsie Tiljoe and others wants the  31 trapline back."  32  33 Do you remember receiving that letter?  34 A   Not really, but I must have received it.  35 Q   It has the Lake Babine and --  36 A   It has the Lakes District received stamp on it bearing  37 a date of January 15, 1974.  38 Q   The next document is a letter from you as district  39 real estate officer to Mr. Cox, the conservation  40 officer in Smithers.  You knew Mr. Cox?  41 A   Yes.  42 Q   And he dealt with traplines for the Provincial  43 Government?  44 A   Yes.  45 Q   He registered them?  46 A  Well, he attended to the records, however it was --  47 however that was to be done. 22920  R. Mclntyre (for Canada)  In Chief by Mr. Macaulay  1 Q   And you are writing him about the Mathew Sam trapline  2 at that time?  3 A   Yes.  4 Q   And you were telling him that Mathew Sam had, by will,  5 left all his property to another -- a status Indian,  6 is that right?  7 A   Yes.  Roy Morris.  8 Q   Roy Morris.  And you are asking him there to confirm  9 that Mathew Sam did indeed have a trapline, the last  10 sentence, "if you confirm that --"?  11 A   Yes.  Uh-huh.  12 Q   Is that the kind of letter you would write in order to  13 determine just what the assets of the estate were?  14 MR. GRANT:  Well, I don't — this witness has not indicated that  15 he dealt with estates.  He was the superintendent and  16 he said his associate dealt with the estates, and then  17 he was this real estate officer and he dealt with this  18 estate.  I think that this letter can -- it will speak  19 for itself, but I don't think that my friend can -- I  20 don't think there is any foundation for the question  21 that he's just asked, that this witness himself dealt  22 with these matters.  23 MR. MACAULAY:  My friend, Mr. Grant, misunderstood my question.  24 I asked him if this is the kind of letter that the  25 witness wrote in connection with the processing of  26 estates in order to determine what the assets were.  2 7 MR. GRANT  2 8 THE COURT  2 9 MR. GRANT  3 0 THE COURT  31 MR. GRANT  And that's what I objected to, my lord.  Well, the witness did write it.  The witness wrote this letter.  Yes.  But now my friend is going to try to say well, is  32 this the kind of letter he wrote.  Well, the witness'  33 evidence I don't think is that the witness generally  34 did deal with estates. Thus far we certainly --  35 THE COURT:  I am not sure whether he did or not.  Perhaps the  36 witness can tell tell us that.  37 MR. MACAULAY:  38 Q   Did you deal with estates?  39 THE COURT:  After you went to Prince George.  4 0    MR. MACAULAY:  41 Q   After you went to Prince George?  42 A   Oh, yes, I did.  Uh-huh.  I am not sure that I was the  43 only one who dealt with estates, but I was -- I was  44 obviously the one that dealt with this estate.  45 Q   And did you deal with other estates at the time you  46 were in Prince George?  47 A   Probably so, yes.  Although I can't recall any -- any 22921  R. Mclntyre (for Canada)  In Chief by Mr. Macaulay  1 estates specifically that I may have dealt with.  2 Q   You remember this one?  3 A   Oh, yes.  I remember it because it was controversial,  4 because of the issues raised by Roy Morris and others  5 and Sophie Ogen.  6 Q   Yes.  And you did write that letter to Mr. Cox?  7 A   Yes.  Uh-huh.  8 Q   And then you got a letter from Mr. Slavens,  9 conservation officer at Burns Lake in reply?  10 A   Yes.  This letter has to do mostly with some apparent  11 discrepancy in the location of the trapline.  And then  12 the final paragraph of the letter simply adds that in  13 accordance with the wishes of Mathew Sam, the  14 disposition of that trapline.  15 Q   And now, tab 15 you wrote a letter to Mr. McFarlane,  16 the district supervisor of the Babine Indian District?  17 A   Yes.  18 Q   What was the purpose of that letter?  19 A  Well, first of all, to advise him of the existence  20 of -- of this estate, the nature of the assets, the  21 nature of the will or the instructions of the will and  22 to request Mr. McFarlane's assistance in completing  23 the Part 9, which -- Part 9 on page four, as it says  24 in the letter, also to request that an affidavit of  25 the witness be taken.  26 Q   Now, could you go back to tab 8 at page four and page  27 five.  Are those the pages you were referring to?  28 A   Page five?  29 Q   Yes.  30 A   Uh-huh, yes.  31 Q   You -- is it -- it's as a result of this letter to Mr.  32 McFarlane that an affidavit was made before Kenneth  33 Muldoe.  Does that seem likely?  34 A   Yes.  That's —  35 Q   Yes.  36 A   That's undoubtedly what happened.  37 Q   Yes.  Your letter is February 15 and I notice the --  38 the affidavit is sworn on the 19th of February.  So  39 that would be --  4 0 A   Uh-huh.  41 Q   So this letter at page -- at tab 15 is in the process  42 of administering the estate, getting the forms filled  43 out?  44 A   That is correct.  45 Q   And is that your signature on this letter, February  46 15, 1974?  47 A   Yes. 22922  R. Mclntyre (for Canada)  In Chief by Mr. Macaulay  1 Q   So in that case you were doing this yourself?  2 A   Yes.  3 Q   By the way, the handwriting at the bottom of the  4 letter, is that yours or someone else's?  Reference to  5 selling one horse and something about a power saw, tab  6 15.  7 A   Tab 15?  8 Q   Yes.  Some handwriting at the bottom.  9 A   It's not my handwriting.  10 Q   It's not your handwriting?  11 A   No.  And I don't know who -- I could not begin to  12 guess whose handwriting it is.  13 Q   Now, could you turn to tab 16.  It's a letter dated  14 December 12, 1974, and it's signed by Amelia Sam or  15 signed by her mark?  16 A   Yes.  17 Q   Addressed to you.  Do you remember hearing from Amelia  18 Sam, the widow, about the Mathew Sam's will?  19 A   I seem to recall that Amelia Sam together with Agnes  20 Tom and Sophie Ogen -- well, this was in '74?  21 Q   Yes.  22 A   No, it was --  23 Q   It was after the death.  24 A   No.  It —  25 Q   I remind you the death was in October '73 and we're  26 now in December '74.  27 A   This is my -- this is my handwriting.  I drafted the  28 letter and I must have done so in the presence of  29 Amelia Sam and Mrs. Agnes Tom and Mrs. Sophie Ogen,  30 but I don't recall where I did this.  It seems  31 unlikely, in my recollection, that they would have  32 travelled all the way to Prince George to do this and  33 I must conclude, therefore, that I probably did it  34 during the course of one of my travels out to the  35 Burns Lake area.  But I have to tell you that I don't  36 specifically recall the occasion.  37 Q   That is your handwriting, is it?  38 A   Yes.  39 Q   Okay.  And now I'm going to -- at tab 17 I'll show you  40 another -- what appears to be a form of will starting  41 with the "further if I ever be gone to Paradise,  42 trapline for my grandson Wilfred Charlie," and it's  43 signed Theresa Sam.  Did you know Theresa Sam?  44 A   Yes, very well --  45 Q   What band did she belong to?  46 A   She belonged to the Burns Lake band.  47 Q   And do you remember her will? 22923  R. Mclntyre (for Canada)  In Chief by Mr. Macaulay  1 A   No, I don't remember her will.  2 Q   Now, clearly this is not on the government form?  3 A   That is -- that is quite clear, right.  4 Q   Now, the next document is a Statement of Value and  5 Relationship "A."  That looks rather different from  6 the five-page document that we'd seen in connection  7 with Noralee Mathew Sam.  From your experience can you  8 tell his lordship why that form would be used in this  9 case?  This is tab 18 I'm talking about.  It's just a  10 one-page thing.  11 A  Well, taking my clues from the words that appear at  12 the top of one form as opposed to the top of the other  13 form, I see the form which is under tab number eight  14 is the form to be used where there is a will which is  15 submitted for approval.  Whereas, in the case of the  16 Theresa Sam will under tab 18, this was the form to be  17 used where the deceased died in testate where there  18 were no land interests and assets not exceeding $500  19 in value.  20 Q   But at the bottom of the form the enclosures are  21 stated to be a will, affidavit witness and invoices,  22 at the bottom of that form?  23 A   Yes.  24 Q   So this was not a case where there was no will?  25 A   No.  There was what appeared to me to be an acceptable  26 will.  And I felt it my duty to submit that, as crude  27 as it might appear to my eye, to the administrator of  28 estates to test his acceptance of it.  29 Q   Now, the next document, tab 19, this is your letter to  30 Mr. Slavens at Burns Lake, the conservation officer  31 there?  32 A   Yes.  33 Q   And this is regarding Theresa Sam's trapline?  34 A   Yes.  35 Q   And you recite there that she bequeaths her trapline  36 to her grandchildren, Wilfred and Christopher Charlie?  37 A   Yes.  38 Q   Did you know them?  39 A   Yes.  40 Q   Did they live at Burns Lake?  41 A   Yes.  They lived -- they lived right next door to  42 their grandmother.  43 Q   Yes.  And you say that you would recommend to the  44 administrator of estates of your department that  45 they -- that that be done, that the trapline be passed  46 to Wilfred and Christopher?  47 A   Yes. 22924  R. Mclntyre (for Canada)  In Chief by Mr. Macaulay  1 Q   And was that the kind of letter written in the  2 ordinary course of administering this estate?  3 A   Yes.  Sometimes.  It really depended on the nature of  4 the estate assets and the circumstances surrounding  5 it.  6 Q   And the next tab is another letter from you.  Again  7 you are district real estate officer in both cases?  8 A   Yes.  9 Q   In the case of tab 19 and also tab 20, you were  10 writing as the district real estate officer?  11 A   Yes.  This is tab 20 you are speaking of?  12 Q   20 now.  13 A   Okay.  Right.  14 Q   And is this a letter to the administrator of estates?  15 A   To the administrator of estates at Ottawa.  16 Q   At Ottawa?  17 A   Right.  18 Q   And that's who you dealt with to get approvals of  19 wills and that kind of thing?  20 A   He was the person to whom I had to report to in all  21 estate matters.  22 Q   And you are addressing a letter to Ottawa here?  23 A   Yes.  24 Q   About —  25 A   Obviously it's in reply to an enquiry that he has made  26 to me and I suspect it was an enquire as to the  27 treatment of traplines as estate assets.  2 8 Q   And you say there:  29  30 "The great majority of traplines possessed by  31 Indians in this District are considered special  32 Indian status traplines in that the Provincial  33 Government has agreed that while they may  34 transfer from one Indian to another, they will  35 not be transferred to a non-Indian."  36  37 Was that then your understanding of the Provincial  38 policy?  39 A   Yes.  40 Q   Now, if you'll -- I don't think there is anything else  41 arising out of that letter that we need to look at.  42 The next tab, tab 21, is a letter from Mr. Tupper, the  43 Administrator of Estates.  That's the man in Ottawa  44 who was then administrator of estates, was it?  45 A   Yes.  46 Q   And it's addressed to the District Supervisor, Lakes  47 District.  Who was that in May of 1975? 22925  R. Mclntyre (for Canada)  In Chief by Mr. Macaulay  1 A   I believe it was a man by the name of Clifford Roach.  2 Q   Was the trapline in the case of Theresa Sam treated as  3 an asset of the estate?  4 A   It appears so by Mr. Tupper's letter, right.  5 Q   And this involves the bequeathing of the trapline to  6 her grandsons Wilfred and Christopher?  7 A   Right.  8 Q   Now, next tab, tab 22, this is your letter to Slavens  9 about Theresa Sam's trapline?  10 A   Yes.  11 Q   And by the way, my lord, the latitude and longitude  12 place this trapline partly in and partly outside the  13 claim area.  It's at the southeastern tip, more or  14 less.  And in this letter you are telling Mr. Slavens  15 that the administrator has advised that Theresa Sam's  16 will should be followed?  17 A   Yes.  18 Q   So that obviously you had seen Mr. Tupper's letter by  19 the time you wrote this?  20 A   Yes.  21 Q   Yes.  And then you say that Kenneth Sam and Nancy  22 Charlie should be the trustees because these were  23 infants?  24 A   Yes.  25 Q   Did you know those two trustees --  26 A   Oh, yes.  27 Q   -- Kenneth Sam and Nancy Charlie?  2 8 A   Uh-huh.  29 Q   They were relatives of the two boys, were they?  30 A   They were parents of the boys.  31 Q   Oh, they were parents.  And 24 -- sorry, 23.  Now,  32 here is another form of will.  Do you recognize that  33 one?  34 A   Yes.  35 Q   You witnessed this will, did you?  36 A   Yes.  37 Q   And you knew Frank Tibbett?  38 A   Yes.  Very well.  39 Q   And he was the chief of one of the bands?  40 A   That's correct.  41 Q   Of Burns Lake band?  42 A   Right.  43 Q   And did you find that Mr. Tibbett needed your advice  44 on where and how to leave his estate?  45 A   No, he certainly didn't need my advice on how he  46 should leave his estate.  He had his mind made up when  47 he came into my office. 22926  R. Mclntyre (for Canada)  In Chief by Mr. Macaulay  1 Q   And -- but did you use the government form in that  2 case?  3 A   Yes.  4 Q   And did he tell you something about how he wanted his  5 property to evolve?  6 A   Yes.  He told me how he wanted his will constructed  7 and how he wanted to bequeath his estate.  8 Q   Yes.  Then the next page in that same tab is a --  9 A   That's the affidavit of -- that's my affidavit as a  10 witness.  11 Q   And did -- you knew right at that time when the will  12 was made it -- it's said to be the 7th of December,  13 one of the 29th of November?  14 A   Okay.  My —  15 Q   And this is the --  16 A   It appears that I was a witness to the --  17 Q   To the will?  18 A   To the will on the 29th day of November 1973 and that  19 my affidavit was taken on the 7th day of September.  20 Q   December.  21 A   I'm sorry, December, right.  22 Q   Then Mr. Roach took your affidavit?  23 A   Yes.  24 Q   And that would be at Prince George, then, would it?  25 A   Yes.  26 Q   Do you remember whether Mr. -- Chief Tibbett made his  27 affidavit at Burns Lake or was it at Prince George?  28 A   I don't recall.  29 Q   Now, 24 is a document entitled "Trapping and Fur  30 Management."  It's dated July 30, 1969.  It's  31 addressed to the Regional Superintendent Development  32 and it's signed by a Mr. Larsen.  Do you know Mr.  33 Larsen?  34 A   Yes, I do.  35 Q   And in 1969, of course, you were the superintendent at  36 Burns Lake, July '69?  37 A   Yes.  38 Q   Did you receive a copy of that document at that time?  39 A   I don't ever recall seeing a copy of that document  40 until it was shown to me in this --  41 Q   Until I showed it to you, until we showed it to you?  42 A   Yeah, until you showed to to me.  43 Q   Right.  Have you read it?  44 A   Yes.  45 Q   And from your experience up to that time, that is up  46 to July of 1969, have you any -- do you agree or  47 disagree with the contents of the document? 22927  R. Mclntyre (for Canada)  In Chief by Mr. Macaulay  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  MR.  MR. GRANT:  I object, my lord.  This is a seven-page document  that this witness never saw until it was shown to him  by Mr. Macaulay.  Surely -- and now he's being asked  if he agrees with the contents of a 20-year-old  document up to that time.  I mean this deals with  trapping and fur management in all aspects.  And I --  I would object that this witness really can't -- if my  friend has a specific point, then he should ask him if  he knows if this such and such was the case, but I  don't think it's proper to ask the witness to adopt an  entire document like this.  It's entirely leading what  my friend is doing here.  He puts a document the  witness has never seen before to him and he says well,  I mean is that consistent with what your facts are in  a seven-page report about -- is that what you thought  it to be 20 years ago.  Well, this witness has made it  clear he can't remember -- he can't remember about  wills that he was dealing with 20 years ago.  Here is  a document he just saw last week or sometime.  Well, we don't know that.  Well, at some time from Mr. Macaulay -- I don't  think Mr. Macaulay was instructing him 20 years ago.  MACAULAY:  No, no.  It's quite reasonable, my lord.  All  right.  I will run at it again at another way.  THE COURT:  All right.  MR. MACAULAY:  Q   Look at page five of this document, Mr. Mclntyre.  Near the -- about halfway down the page the author  says this:  "It is fair to say this cost should be  amortized over ten years for an annual  depreciation of $53.00.   This cost must be  deducted from gross returns of a $199.29 for a  net return of $145.29 for 319 hours spent or 46  cents an hour."  Now, did you -- in 1969 did you -- do you agree or  disagree that a trapper might look forward to an  income of $200 a season for his trapline?  :  Well, I -- this is an opinion here, my lord.  This  is clearly  :  I don't know what he's talking about.  I haven't  figured out what he is talking about.  :  Well, I know.  I have a great deal of difficulty  with that too.  But this is opinion evidence, and if  Mr. Macaulay wants to call this kind of evidence he  MR. GRANT  THE COURT  MR. GRANT 2292?  R. Mclntyre (for Canada)  In Chief by Mr. Macaulay  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR.  MR.  MR.  should have provided it to us in an expert report 60  days in advance.  This witness is not qualified to  give that kind of opinion evidence.  THE COURT:  Well, I suspect he is.  That's not the point.  MR. GRANT:  Well, he may be qualified to give that opinion  evidence, but there is some requirements of notice  other than this.  This, I believe, was a document  that -- I mean it's a hypothetical, it seems to me,  what is being asked about here.  It's not an actual  statement of fact.  If Mr. Macaulay wants to ask this  witness something that this witness knew from his  personal knowledge in 1969, that's fine.  But this is  leading to put this statement to him and then to say  is that what you thought it was.  He should ask the  witness just the question.  Not what --.  MACAULAY:  Q   Mr. Mclntyre, in your experience what were fur prices  like in 1969?  I honestly can't remember, but my perception looking  back --  Well —  -- is that I don't think they were very good.  MACAULAY:  Q   Had you ever calculated how much a trapper might earn  in a season?  A   I might attempt such a calculation with one trapper,  but to generalize it here as Mr. Larsen has attempted  to do, no, I -- no, I would not have attempted to do  what he is attempting to do here.  Q   I think we'll have to remove that document from the  exhibits, my lord.  That's tab 24.  Fair enough.  Now, the next document, Mr. Larsen, is a -- it's a  document entitled "A Trapper Assistance Proposal."  Have you seen that?  A   Yes.  This is one of my creations.  Q   And on the last page it shows the date of February 1,  1974?  A   Yes.  Q   What was the purpose of this document?   Why did you  take the trouble to draw it up?  A   I guess I took the trouble to draw it up because I  thought I had an idea at the time of a way that the  Department of Indian Affairs could justify financial  assistance to Native trappers in a way that would --  it would be useful to them, it would motivate them,  but most of all it would be useful to them.  And so I  set about to put my ideas on paper.  I submitted it to  A  GRANT  A 22929  R. Mclntyre (for Canada)  In Chief by Mr. Macaulay  1 our Vancouver office.  And to make a long story short,  2 nothing ever came of it.  But it seemed a good idea at  3 the time.  4 Q   Now, you classify -- you -- on the first page you set  5 out the situation faced by many Indian trappers and  6 you number them one, two, three.  Number one is:  7  8 "Lifestyle changes.  Mandatory enrollment of  9 children in school removed the family from the  10                     trapline."  11  12 Did you then consider that to be a factor in --  13 A   Yes.  14 Q   And why was that?  Why did you consider that to be a  15 factor?  16 A   Because during the years previous it was -- it was  17 well-known that Indian children often -- many Indian  18 children did not attend school, and so therefore they  19 were free to join their parents out on the trapline.  20 But with increasing emphasis and determination that  21 Indian children should receive a formal education that  22 it obviously took them off the trapline.  23 Q   And what effect did that have on trapping?  24 A   I think in some cases it may have -- well, I think it  25 did two things.  It denied -- it denied Indian  26 children of an opportunity to learn trapping, because  27 they obviously couldn't attend school and trap at the  28 same time.  Particularly those children who were --  29 who were required to attend an Indian residential  30 school.  And I don't know what else can I say.  31 Q   Now, the second is other employment opportunities.  I  32 suppose that speaks for itself, does it?  33 A   Yes.  34 Q   And the third is destruction of the fur habitat.  You  35 were referring there to logging, mining?  36 A   Yes.  37 Q   Agriculture.  Did you learn about this destruction of  38 the fur habitat from band members?  39 A   I heard many many complaints from band members, from  40 band members who had -- who had earlier been out  41 trapping and who were discovering, as they are still  42 discovering, that clear-cut logging -- the logging of  43 any kind, for that matter, is detrimental to fur  44 habitat.  45 Q   And then you go on to classify the trappers in three  46 categories.  The trapper, the landlord trapper, and  47 the part-time trapper. 22930  R. Mclntyre (for Canada)  In Chief by Mr. Macaulay  1 A   Yes.  2 Q   Now, by the trapper you meant the full-time trapper  3 who goes -- is that what you're talking about?  4 A   That was category one, right.  5 Q   Yes.  And then the landlord trapper.  Were there band  6 members who are landlord trappers?  7 A   You would call them that.  I called them that because  8 they more often than not came to me because the  9 Provincial Government required them to.  They came to  10 me to get my -- to obtain my approval of their -- of  11 their intention to rent their trapline for a year or  12 two to a non-native.  13 Q   In that connection -- we'll come back to this exhibit,  14 but could you turn to Exhibit 26 -- tab 26.  There are  15 two letters there?  16 A   Yes.  17 Q   One is written to D.I.A. by Clifford Cousins and the  18 other —  19 A   Yes.  20 Q   -- is a letter "To whom it may concern," which appears  21 to bear your signature right at the bottom?  22 A   Yes.  23 Q   Is that the kind of transaction you're talking about,  24 the landlord trapper?  25 A   Yes.  26 Q   And in this case did you know Isaac Sam?  27 A   Yes.  He was Theresa Sam's husband.  28 Q   And was that kind of a transaction -- did that happen  29 fairly often, this lease -- I guess it's a lease of a  30 trapline or is that rare?  31 A   I don't know that I would say it happened -- happened  32 fairly often.  It was not an unusual kind of an  33 arrangement, but I -- I can't recall whether it was --  34 you know, whether it happened a lot or a little bit.  35 I'm not even sure that all of these -- all of these  36 arrangements necessarily came to my attention.  37 Q   Did you know Mr. Cousins?  38 A   Yes.  39 Q   Cliff Cousins?  40 A   Yes.  41 Q   Was he a band member?  42 A   No, he was not.  He was a non-native.  43 THE COURT:  I'm sorry?  44 A   He was a non-native.  4 5    THE COURT:  Oh.  4 6    MR. MACAULAY:  47 Q   He was a white trapper? 22931  R. Mclntyre (for Canada)  In Chief by Mr. Macaulay  1 A   Yes.  2 Q   And then the part-time trapper.  3 A   Uh-huh.  4 Q   Was there -- how much part-time trapping was going on?  5 A   These would be individuals who would have a full-time  6 job, that is a Monday to Friday job, for instance, in  7 a local sawmill who would choose to do trapping on the  8 weekends or on their days off or on -- if -- if they  9 happened to be laid off for a short period of time in  10 their sawmill job or their bush job or whatever.  They  11 were the type of trapper who was most dependent on  12 sources of income other than trapping.  13 Q   By the time you drew this document, what experience  14 did you have in trapping?  This is a document dated  15 February 1, 1974.  16 A  What experience did I have in trapping?  17 Q   Well, with -- in regard to trapping, your writing  18 about it.  19 A   I have never -- except when I was a very young  20 teenager, I have never -- never set a trap for a wild  21 animal in my life.  But through association with  22 Indian people and through discussions with trappers I  23 guess I gained at least a little bit of knowledge of  24 trapping, but I have never possessed a trapline nor  25 have I set a trap.  26 Q   Did you know a Mr. Kendall?  27 A   Yes.  28 Q   Did he have -- was he an officer of the D.I.A.?  29 A   Yes, he was.  30 Q   And did he take a particular interest in trapping?  31 A   He was -- he was -- he was recognized and known as the  32 regional wildlife officer for some period of time, I  33 believe even prior to my transfer to Prince George,  34 yes.  35 Q   And —  36 A  And he was considered to have knowledge of the fur  37 industry and had -- had developed contacts with  38 Provincial people in regard to wildlife matters, yes.  39 Q   What -- do you remember him leaving Prince George?  40 A   He was never ever stationed in Prince George.  41 Q   Oh.  42 A   He was -- during my acquaintance with him, he was  43 always located in Vancouver.  Although I understand  44 that prior to the commencement of his career in  45 Vancouver he was -- he was located in one of the  46 prairie provinces and had -- had apparently gained  47 some recognizable qualifications in matters of a 22932  R. Mclntyre (for Canada)  In Chief by Mr. Macaulay  1 wildlife -- in matters of a wildlife nature.  2 Q   Did you ever at any point take over any of his  3 functions or duties?  4 A   Yes.  Yes, in fact when he -- when he retired for a  5 couple of years I was -- I was given the assignment of  6 being the regional wildlife officer which I attended  7 to in addition to my other -- to my other duties of a  8 real estate or land nature.  9 Q   And did you get any information from him when you took  10 over?  11 A   Oh, I got his files, such as they were.  12 Q   Now, if you could turn to tab 27.  13 MR. GRANT:  My lord, I am going to be objecting to the  14 admissibility of tab 25.  This is a proposal put  15 together by this witness to the department that in his  16 in his own words went nowhere.  And certainly not  17 something, of course, dealt at all with the plaintiffs  18 specifically.  It's a -- it's a departmental  19 official's proposal to another departmental official  20 and it went nowhere.  And I think that it's just quite  21 irrelevant.  I don't see what the point of this is.  22 My friend has used some of the terminology to have the  23 witness explain and I have no objection to that, but I  24 think the proposal should be kept out.  It's not  25 relevant.  26 THE COURT:  Are you pressing for its admissibility, Mr.  27 Macaulay?  28 MR. MACAULAY:  I don't think I need that particularly —  2 9 THE COURT:  All right.  30 MR. MACAULAY:  — as part of my case, my lord.  31 THE COURT:  All right.  We will delete it from the book.  Thank  32 you.  33 MR. MACAULAY:  I see it's 3 o'clock.  34 THE COURT:  All right.  We will take the afternoon adjournment.  35 Thank you.  36  37 (PROCEEDINGS ADJOURNED PURSUANT TO AFTERNOON BREAK)  38  39 I hereby certify the foregoing to be  40 a true and accurate transcript of the  41 proceedings herein to the best of my  42 skill and ability.  43  44  45 Laara Yardley, Official Reporter,  46 United Reporting Service Ltd.  47 22933  R. Mclntyre (for Canada)  In Chief by Mr. Macaulay  (PROCEEDINGS RECONVENED AT 3:15 P.M.)  REGISTRAR:  Order in court.  COURT:  Mr. Macaulay.  MACAULAY:  Q   My lord, I'm going to deal with the next several tabs  together, if I may, that's 27, 28, 29, to do with the  witness, 30 and 31 and also 32.  Witness, would you look at that series of  documents, the first being a letter from Ruth Lord  with an enclosure?  A   Um-hmm.  Q   The second being a letter from Theresa Sam to you?  GRANT:  Well, before my friend goes on, my lord, I am going  to object to all of these.  I'm glad he has grouped  them, because I object on the basis of relevance.  There is no evidence that Isaac Sam is a plaintiff and  I object on the basis of any relevance relating to  this.  I don't see what the relevance of this is to  this case.  COURT:  Is this trapline said to have a latitude of 54:50 --  sounds like a good way to start a fight -- and 125:10?  Is it in the claim territory or --  MACAULAY:  Partly in and partly out, my lord.  It's on the  eastern border.  COURT:  Yes.  MACAULAY:  I think I've got a note of the trapline number.  COURT:  Well, if it is within the claim territory or part of  it, Mr. Grant, it would seem to me to have a threshold  of relevance.  GRANT:  I wonder if my friend can assist me.  That's why --  what I was unable to determine from the documents,  whether it was.  But I understood my friend's  evidence, of course, in this realm was to relate to  conduct of the plaintiffs and that's why I --  MACAULAY:  Sometimes difficult to know who are plaintiffs  and who aren't.  But it's in the claim area, my lord.  GRANT:  Which number is it?  MACAULAY:  My instructions are it's number 605T006, my lord,  just in the eastern end of the -- southeastern end.  But it jumps the border and it extends farther.  PLANT:  My lord, on my copy of this overlay, it looks like  that number is on top of the Indian reserve in the  extreme southeastern corner called Sheraton Creek  number 19.  GRANT:  To the extent that that -- that there is some  overlap on -- within the area, if that's the focus of  1  2  3  THE  4  THE  5  MR.  6  7  8  9  10  11  12  13  14  MR.  15  16  17  18  19  20  21  THE  22  23  24  MR.  25  26  THE  27  MR.  28  THE  29  30  31  MR.  32  33  34  35  36  MR.  37  38  MR.  39  MR.  40  41  42  MR.  43  44  45  46  MR.  47 22934  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. Mclntyre (for Canada)  In Chief by Mr. Macaulay  my friend, but it certainly hasn't been the tenor of  his questions with respect to these kinds of  documents.  It's been at the conduct of the  plaintiffs, I understood.  But if -- given that  situation, I am not going to -- I think you are right.  All right.  It holds a threshold of relevance.  Sometimes these things are multi-dimensional.  Oh yes.  Go ahead, Mr. Macaulay.  THE COURT:  MR. GRANT:  THE COURT:  MR. GRANT:  THE COURT:  MR. MACAULAY:  Q   Have you looked at that series of documents?  Are they  all concerned with the -- well, what eventually -- the  Henry Isaac trapline became the Theresa Sam trapline;  is that right?  A   The only —  Q   Or Isaac Sam?  A   The only information I obtained to the effect that  this was once the Henry Isaac trapline was information  conveyed to me by the conservation officer at Burns  Lake, a man by the name of Bill Richmond, who told me,  as my note indicates, that at some point in time,  undoubtedly prior to my -- my time in Burns Lake,  this -- that Henry Isaac had apparently sold this  particular trapline to Isaac Sam.  But --  And Theresa?  Yes.  These documents deal with the -- deal with the  trapline that I understood to be in possession by  Isaac Sam.  And was Theresa Sam his widow?  Yes.  That was his wife?  Yes.  THE COURT:  And she leased it to Mrs. Lord?  THE WITNESS:  From time to time, yes.  MR. MACAULAY:  Q   Well, Isaac Sam had also leased it apparently?  A   Yes, yes.  Q   And Mrs. Lord was a non-Indian trapper?  A   That is correct.  Q   And then this is the same trapline that Mr. Cousins  had at one time leased?  A   Yes.  Mr. Cousins and Mr. and Mrs. Lord, to the best  of my recollection, they all resided in the same  household and may, in fact, have been related to each  other.  That is -- it is possible, although I don't  know for sure that Mrs. Lord and Mr. Cousins were  Q  A  Q  A  Q  A 22935  R. Mclntyre (for Canada)  In Chief by Mr. Macaulay  1 somehow related to each other.  But I don't know that  2 to be a fact.  3 Q   They are both trappers?  4 A   Yes, they were.  5 Q   Now, this brings us to tab 33.  It's a letter from you  6 to Mr. Slavens again about the Toby Charlie trapline.  7 Did you know Toby Charlie?  8 A   Yes.  Very well.  9 Q   Do you remember what that letter was about?  10 A  Well, from the words that are in the letter, it  11 appears that Mr. Slavens was questioning me as to my  12 opinion as to who -- who should presently be entitled  13 to trap on this particular trapline.  14 Q   Um-hmm.  15 A  And I was giving him my reply.  16 MR. MACAULAY:  My lord, those co-ordinates are in the claim  17 area.  18 THE COURT:  Yes.  19 MR. GRANT:  Does my friend have a number for that one?  2 0 MR. MACAULAY:  Well, I can get one.  If I haven't I'll get one  21 shortly.  I'll inform your lordship tomorrow morning  22 of what the co-ordinates of that Toby Charlie one is.  23 The next one, I do have co-ordinates.  24 THE COURT:  Next one being tab 34?  2 5 MR. MACAULAY:  26 Q   Thirty-four -- yes, 34.  That's a -- or rather I have  27 the trapline number in this case it's 604T036 and  28 that's in the claim area, my lord.  29 If you look at tab 34, it's a two-paged letter  30 and your signature appears at the bottom of the second  31 page?  32 A   Yes.  33 Q   And this was another lease proposition, wasn't it?  34 A   Yes.  Between Joe Isaac Augusta and Alfred Harrison,  35 of the Burns Lake area.  36 Q   Did you know Mr. Harrison?  37 A  Vaguely, yes.  38 Q   Was he a non-Indian trapper?  39 A   Yes, he was.  40 Q   Did you know Joe Augusta?  41 A   Yes, I did.  42 Q   And what band did he belong to?  43 A   Joe Augusta was a member of the Stilako Band.  44 Q   He had a trapline near Burns Lake somewhere?  45 A   If my memory is correct, his trapline was somewhere  46 along the shores of Francois Lake.  47 Q   My instructions are, my lord, that it was -- it's -- 22936  R. Mclntyre (for Canada)  In Chief by Mr. Macaulay  1 that trapline is south of Francois Lake and north of  2 Ootsa Lake.  3 And now the next is -- tab 35 is a -- this is  4 your note?  5 A   Yes.  This is a note to myself reminding myself that  6 on my next -- on my next trip to the Fort Babine area,  7 that I should -- I should contact a member of the Lake  8 Babine Band by the name of Charlie Nicholas, and  9 discuss with him who he preferred his trapline to go  10 to in the event of his death.  This man was at the  11 time very, very old.  12 Q   Do you remember where his trapline was, roughly?  13 A   I seem to recall that it was in the Bear Lake country,  14 north -- northwest of Takla Landing.  15 Q   And Charlie Nicholas was a very well-known man?  16 A   Oh yes, yes.  He was one of the key -- main characters  17 in a book entitled Driftwood Valley that was -- that  18 was written by a lady and her husband, who lived --  19 who spent a couple of winters in the valley, the  20 Driftwood Valley in the mid to late 1930's.  21 Q   And Charlie Nicholas, was he better known by another  22 name?  23 A   He was also more commonly known as Bear Lake Charlie  24 and was referred to -- and you know, he was referred  25 to in that manner very frequently throughout her book  26 and indeed, within the community of Fort Babine during  27 the time that I was there.  28 Q   So you made this note to yourself.  And then in the  29 next tab there is another document dealing with  30 Charlie Nicholas or Nicholas Charlie, and this doesn't  31 bear your signature though.  Do you know who that  32 document was created by?  33 A  Well, the witness here was a man by the name of Jim  34 Gagnon who was a short-term employee at the time with  35 the Department of Indian Affairs.  It was Mr. Gagnon's  36 role as an employee to do what he could do to  37 encourage and facilitate trapping by native people in  38 the Lakes District.  And I suppose that in the travel  39 envelope, the note that I made to myself under tab 35,  40 that Jim Gagnon probably picked up my note and  41 attended to the matter.  The matter being, obtaining a  42 statement or a document signed by Charlie Nicholas as  43 to his disposition or intended or desired disposition  44 of his trapline, which, incidentally, he made to his  45 son Michelle, and I believe the other persons, William  46 and John, are also his sons.  47 Q   My lord, we are not tendering that as a will. 22937  R. Mclntyre (for Canada)  In Chief by Mr. Macaulay  1 THE COURT:  No?  Michelle, William and John are all sons of Bear  2 Lake Charlie, are they?  3 THE WITNESS:  Certainly Michelle is his son, and it's my belief  4 that William and John are also his sons.  And I say  5 that, you know, from my personal knowledge of Charlie  6 Nicholas and because of the fact that he hasn't --  7 that last names are not identified on this document.  8 MR. GRANT:  Well, my lord, with respect to William and Johnny, I  9 would suggest that maybe the witness is -- it sounds  10 like he is speculating as to those two.  11 THE COURT:  I don't know if he is speculating or if he is —  12 perhaps he can clear it up if he is giving evidence of  13 reputation.  Perhaps you can clear it up.  14 MR. MACAULAY:  15 Q   Had you heard when you were carrying out your duties  16 that William and John were sons of Bear Lake Charlie?  17 Had you heard that?  18 A   I don't recall that.  But certainly it would seem that  19 if one were to examine the band lists of the Takla  20 Lake Band that one might find that William and John  21 might -- are probably listed there, and if one were to  22 further trace back, I suspect that William and John  23 would be discovered to be identified as the sons of  24 Charlie Nicholas.  25 THE COURT:  But you haven't heard people discussing this and  26 expressing that belief that they're sons?  27 THE WITNESS:  No.  I'm trying to go by memory here and it's been  2 8 awhile.  2 9 THE COURT:  All right.  30 THE WITNESS:  It just seems to me that if they were not sons, it  31 would have been last -- some other last name included  32 in this document.  33 THE COURT:  All right.  34 MR. MACAULAY:  35 Q   Tab 37, the letter to you from Mr. Slavens, the  36 conservation officer.  Did you know Steven Morris?  37 A   Yes.  38 Q   And do you recall whether or not he relinquished his  39 rights to his trapline to his son Eddie?  40 A  Well, that appears to be the case by the purpose of  41 this letter.  It was a letter -- it's really nothing  42 more than a letter from Mr. Slavens, the conservation  43 officer, to myself.  44 Q   Telling you this?  45 A   Telling me this.  So I have no -- I have no -- nothing  46 else to say about it.  47 Q   And Keom Morris.  We've seen that name in the -- that 2293?  R. Mclntyre (for Canada)  In Chief by Mr. Macaulay  1 exhibit showing the band elections?  2 A   Yes.  3 Q   And did you know Keom Morris?  4 A   Oh yes.  Very well.  5 MR. MACAULAY:  I believe Keom Morris is a plaintiff, my lord.  I  6 can't be sure of that, but it's an awfully familiar  7 name.  8 THE COURT:  Well, he was mentioned probably by Mr. Shelford, I  9 think.  10 MR. MACAULAY:  11 Q   Now, the next document is tab 38, it is a letter  12 signed by Mr. -- the same Mr. Harrison, I guess, the  13 same signature, and do you recall that letter?  14 A   No, I don't recall this letter.  15 Q   Did Eddie Morris have his trapline in the Ootsa Lake  16 area?  17 A   I believe I at least rediscovered that later on in my  18 capacity as a Special ARDA Officer, but I may have  19 been aware of that at the time.  It's -- you know,  20 it's quite awhile ago.  21 Q   But do you know A.J. Morris -- A.J. Harrison?  22 A  Alf Harrison.  23 Q   Alf Harrison of Burns Lake?  24 A   Yes.  2 5 Q   And he was --  26 A   He did not live in Burns Lake, he lived in the area  27 south of Burns Lake.  2 8 Q   And he was a non --  29 A   Non-native.  30 Q   A non-native trapper?  31 A   Yes.  32 Q   And that's the Lakes District stamp in use at that  33 time?  34 A   Yes.  35 Q   There is an initial over in the left and the name  36 "Rae".  Does that indicate anything to you?  37 A   No.  I -- I might speculate that when this was  38 received at the office on March the 20th, that someone  39 thought I was probably to be made aware of this  40 letter, and consequently someone put my name on it in  41 order to draw my attention to this letter.  42 MR. GRANT:  If my friend is going beyond that I would ask --  43 this witness says he doesn't know anything about this  44 letter, and if that's leaving it at that, I think it  45 would be appropriate to have this one excluded.  46 THE COURT:  Well, is it not a business record?  47 MR. MACAULAY:  It's a business record, my lord, that's why I 22939  R. Mclntyre (for Canada)  In Chief by Mr. Macaulay  1 asked him about the stamp and so on.  He knows the --  2 Mr. Harrison and he knows Eddie Morris and he says he  3 knows that Eddie Morris had his trapline in the Ootsa  4 Lake area.  5 THE COURT:  And did this letter come from the records of the --  6 MR. MACAULAY:  This letter —  7 THE COURT:  — Department of Indian Affairs?  8 MR. MACAULAY:  Yes, my lord.  That's what the stamp is, Lakes  9 District, Prince George, 20th March, 1978.  He has  10 identified that stamp as the stamp of the Lakes  11 District.  12 MR. GRANT:  Well that suggests, my lord, that my friend's  13 suggestion is that anything that happens to go into  14 the office of the Indian Affairs is, by definition, a  15 business record.  This isn't written by any officer  16 there and it's not something that's required to be  17 delivered there.  This isn't even of the nature of the  18 kind of documents that the Fish and Wildlife are  19 attending to.  And the witness did say later on, yes,  20 at Special ARDA he knew that Mr. Morris had a trapline  21 in this area, but he can't say about it this time and  22 he had no knowledge of this letter.  How can this  23 letter be identified in this way?  I mean it's just  24 that anything that my friends happen to think comes  25 out of the office that this witness happened to work  26 at, they put to the witness whether he knows it or not  27 and it goes in.  28 THE COURT:  Well, if it's the type of thing that's normally  29 incumbent in an office, then it meets the other tests  30 of admissibility.  And I haven't looked at the  31 sections to see if it does or not.  What you have just  32 said is indeed the case, is it not, and it's prima  33 facie truth of the facts stated in it.  But I am not  34 sure what notice is required and that's where,  35 presumably, these documents were made known sometime  36 ago, were they?  37 MR. MACAULAY:  The index, my lord, if you'll turn to the index,  38 tab 38 is described; its origin, its source that is,  39 the departmental file number.  We assert that, of  40 course, not the witness.  It's -- this number is  41 11169, that was disclosed about a year ago from the  42 number, our list number.  43 THE COURT:  All right.  4 4 MR. MACAULAY:  45 Q   It's in D.I.A. file 985/20-10-M-13.  And I don't think  46 the witness could at this long interval identify the  47 file number. 22940  R. Mclntyre (for Canada)  In Chief by Mr. Macaulay  1 Well, perhaps you can.  Does that number mean  2 anything?  3 A   No.  4 Q   I don't suppose it does?  5 A   No.  6 THE COURT:  Well, I don't recall now what the various  7 requirements are for business records.  But subject to  8 Mr. Macaulay satisfying the qualifying requirements,  9 then it seems to me that the document would be  10 admissible.  But I don't have such in front of me and  11 I don't remember what's required.  12 MR. MACAULAY:  13 Q   I'm going to ask another one or two questions.  I  14 think I've asked nearly all the questions I need to  15 ask.  16 Now, you received from time to time letters from  17 Mr. Harrison concerning his rental of traplines; is  18 that right?  19 A   Yes.  As well as other non-natives concerning other  20 traplines.  21 Q   Like Mrs. Lord, for instance?  22 A   Right, um-hmm.  23 Q   And were you under some obligation to keep those  24 letters on your file --  25 A   Yes.  2 6 Q   -- when you received them?  27 A   On two counts that I -- that I perceived at the time.  28 The first count being that there was an understanding  29 between my office while I was at Burns Lake -- and I  30 think that understanding probably carried on over into  31 the time when I went to Prince George -- there was an  32 understanding that had been reached with the Fish and  33 Wildlife Office that whenever I came into -- into  34 possession of information, be it a will or an  35 arrangement that had been worked up like this, that I  36 would -- that I would tell the Fish and Wildlife  37 Branch and we would keep each other, you know,  38 apprised of information of mutual interest to our  39 files.  40 And secondly, there was an attitude that  41 prevailed at the time within the Fish and Wildlife  42 Branch Office, that none of these arrangements would  43 be -- would be acceptable to the Provincial Government  44 unless they were given the stamp of approval, if you  45 like, of myself or some other officer of the  46 Department of Indian Affairs.  Now, in some ways I  47 resented that.  It smacked of paternalism which I 22941  R. Mclntyre (for Canada)  In Chief by Mr. Macaulay  1 resented.  But at the same time, I could see that if  2 I -- if I denied my approval to these arrangements, I  3 would be doing so at the cost of the Indian person  4 who, after all, had been a party to this, and so I  5 went along with it.  But my main interests in having  6 these was to maintain a file to the best of my  7 knowledge and ability on each -- on each trapline file  8 for which I felt responsible.  9 THE COURT:  Well, Mr. Grant, this book of documents has only  10 been given a number on a pencilled-in basis, and I  11 would be glad to hear from you at any convenient time  12 as to whether these are business records or not.  If  13 they are they go in, if not, they won't go to the  14 extent they have been proven.  15 MR. MACAULAY:  A great many of them, my lord, are the witness'  16 own documents.  17 THE COURT:  As I say, unless they have been proven in some other  18 way.  19 MR. MACAULAY:  20 Q   Now, regarding Eddie Morris, did you have -- I think  21 you mentioned just awhile ago, you had -- if you  22 didn't know it before, you found out where his  23 trapline was when you were with the ARDA programme?  24 A   Right.  25 Q   That's after you left D.I.A.?  26 A   Yes.  27 Q   And do you remember speaking to Eddie Morris about his  28 trapline?  2 9 A  At the time of this arrangement or during my time as a  30 ARDA officer?  31 Q   During your time with ARDA, particularly in December  32 of 1985?  33 A   Yes, I do.  I recall meeting with him in his home at  34 Moricetown.  35 Q   And what was the purpose of the meeting?  36 A   The purpose of my meeting with him was to evaluate an  37 application he and others had made, but particularly  38 his application to the Special ARDA programme for  39 financial assistance in order to trap on his trapline.  40 Q   And did you make notes of the interview?  41 A   Yes.  I believe they are in a later tab, are they not?  42 Q   If you turn to tab 39.  43 A   Yes, those are.  44 MR. GRANT:  My lord, if I may stand on this.  I — this is one  45 of those that crosses the line that your lordship has  46 not ruled on, but I would like to speak to.  As this  47 witness has evidenced in these tabs, the subsequent 22942  R. Mclntyre (for Canada)  In Chief by Mr. Macaulay  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  tabs that I received just this morning and I just had  a chance to review it over the noon hour, but he deals  with ARDA applications, Special ARDA applications I  may say, pre- and post-October 1984.  Now, this first one that Mr. Macaulay has raised  is, of course, a post-1984 Special ARDA application.  And this is the issue that came before your lordship  almost a year ago with respect to the issue of new  ventures, and I -- I referred you to this, I believe,  earlier, with respect to the issue of whether or not  these applications should be considered.  And I  just -- as relevant.  THE COURT:  But here we have a statement made by Eddie Morris,  who I assume is a plaintiff, who says to the witness,  "This trapline has not been trapped on within the past  ten years since Eddie obtained it from his father, the  late Steven Morris."  Now, that wouldn't matter that  that statement was made in the course of an  application for a new enterprise or not.  The new  enterprise may not be admissible but that kind of  statement certainly would be.  MR. GRANT:  That's — I think that you've made a distinction  with which I don't disagree.  The interview itself may  not be, and I anticipated -- maybe I anticipated  wrongly, but from my review of the files, that my  friend intends to put in ARDA applications  post-October 1984.  And if my friend does not intend  to put those in then there are certain tabs I guess he  intends to remove.  But I -- I am not -- I don't  dispute what you say with respect to the content of an  interview, because I think that does come within the  ambit of what your lordship ruled already, would be a  discussion of a trapline, of an ongoing situation with  respect to a trapline.  And that's not what I'm  opposing so I don't know if you are suggesting that I  should wait until my friend raises the other issues,  because I anticipate that's what he is going to do  immediately.  THE COURT:  Well, I am in counsel's hands.  I have difficulty  finding any possible objection to this statement.  MR. GRANT:  To the interview?  THE COURT:  This document.  MR. MACAULAY:  That's all we've got for Eddie Morris.  MR. PLANT:  My lord, I rise because I don't want my silence to  be taken as acceptance that there is any difference in  this regard for an application for a Special ARDA  grant, whatever that is, before 1984 or after 1984. 22943  R. Mclntyre (for Canada)  In Chief by Mr. Macaulay  1 Because the application form, or any other document  2 connected with it, contains admissions by the  3 plaintiffs against interest.  I would say that the  4 document is admissible for that purpose or the  5 statement.  6 THE COURT:  Yes.  Why don't we deal with ARDA applications when  7 we get to that.  8 MR. GRANT:  That's fine, my lord, if my friend isn't intending  9 to use them in this case.  10 THE COURT:  All right.  11 MR. MACAULAY:  It's only the record of the interview, my lord,  12 and it's tab -- well --  13 MR. GRANT:  I would like the entire document produced.  As you  14 can see, my friend deleted the last part of it and I  15 would like, prior to my cross-examination, to have the  16 bottom of the document produced to me.  17 MR. MACAULAY:  That's recommendation.  We —  18 MR. PLANT:  Which Mr. Grant says is irrelevant.  19 MR. MACAULAY:  Yes.  That's the thing.  We took off all the  20 recommendations.  They -- they are made in 1988 or  21 1989.  Or a committee does.  22 THE COURT:  This is a 1958 application and there is no  23 difficulty showing Mr. Grant the other part of the  24 document, is there, Mr. Macaulay?  2 5 MR. MACAULAY:  Oh, no.  26 MR. GRANT:  Thank you.  2 7 MR. MACAULAY:  He can ask the witness too about it.  2 8 THE COURT:  Yes.  29 MR. GRANT:  Well, that's why I would like to see it before I ask  30 the witness about what's on there.  It's only fair.  31 MR. MACAULAY:  32 Q   Well, I'll ask you.  When these applications were  33 made, did you make the decision or was it some other?  34 A   No.  I am not allowed to make decisions, but I am  35 expected to make recommendations to a committee who  36 may then accept or reject my recommendation.  37 Q   And at that time were there any band members of any  38 band, members of the committee?  39 A   No.  40 Q   In 1985?  41 A   No.  Moricetown Band has never had, to my knowledge,  42 one of its own band members serving on the Special  43 ARDA Advisory Committee.  44 Q   Did the Gitksan have any band members serving on the  45 committee?  46 A   Norman Johnson, a member of the Kitwanga Band, was a  47 member of the committee up until the time the Special 22944  R. Mclntyre (for Canada)  In Chief by Mr. Macaulay  1 ARDA programme expired, at the end of March of this  2 year.  3 Q   And -- well, we've all read the document now.  Mr.  4 Morris told you that the trapline hadn't been used for  5 ten years?  6 A   Yes.  7 Q   Ever since he had gotten it from his father?  8 A   I can't do a quick calculation of the time from --  9 time Mr. Slavens advised me, but he told me ten years  10 and that's what I wrote down.  11 Q   Now, did you speak to David Blackwater Senior about a  12 ARDA application?  13 A   Yes.  14 Q   And that was in 1985?  15 A   Yes.  16 Q   Do you recall what he said to you about his  17 application?  18 A   By virtue of these notes, I recall, yes.  19 Q   Well, having refreshed your memory from the notes,  20 what do you recall?  21 A  Well, that he had a trapline for 20 years, and all of  22 the points that follow thereafter.  And as a result of  23 my conversations with him, I made a recommendation as  24 I did with all other applications.  2 5 MR. MACAULAY:  All right.  26 MR. GRANT:  This document is edited.  I would make the same  27 request.  28 THE COURT:  What does number five say?  "Trapline is at/near  29 Klappan coal development."  Is that what it says?  30 THE WITNESS:  Yes, you've read that correctly.  31 THE COURT:  Yes, all right.  Now, he also traps on — what's  32 that next word?  Jack?  33 THE WITNESS:  Jasper Jack's trapline.  I suggested his  34 application might be enhanced if he could show me some  35 written consent by Jasper Jack that he could also  36 obtain permission to trap on that particular trapline.  37 So that was -- that was the gist of my note there.  3 8 THE COURT:  Yes.  39 THE WITNESS:  And also comments with regard to his brother  40 Walter, who apparently traps on an adjoining trapline  41 and who might conceivably have joined him in this  42 application.  43 THE COURT:  Yes.  All right.  44 THE WITNESS:  The reason for my encouragement of this kind of  45 additional documentation is that very often I felt  46 that an applicant's application could be improved upon  47 if it could be shown that he has a larger rather than 22945  R. Mclntyre (for Canada)  In Chief by Mr. Macaulay  Submission by Mr. Grant  1 a smaller area in which to trap, and so I felt that I  2 owed it to my clients to counsel them accordingly.  3 THE COURT:  Yes.  Okay.  4 MR. MACAULAY:  5 Q   Now the next one, my lord, is a part of an application  6 of Jeffery L. Harris.  Do you remember Mr. Harris?  7 A   Yes.  8 MR. GRANT:  This is where I object, my lord.  I say this is a  9 new -- this is a project proposal of November of '86.  10 THE COURT:  Yes.  11 MR. GRANT:  And complete with funding requests and everything in  12 it.  And I object to the tendering of this type of  13 document.  It's obviously a form that's been prepared  14 for Mr. Harris, funding and budgets, and I -- the  15 position I take is that in accordance with your  16 rulings of last year, that this is in the nature of a  17 new project, a new proposal.  And on the December 5th  18 ruling, your lordship -- I'm sorry, my lord, it  19 appears I have this part cut off.  It's on page 10042.  20 "The only" -- line 31:  21  22 MR. GRANT:  The only point, my lord, I don't know  23 if you dealt with the snowmobile question  24 which I view it -- I think I -- the  25 reason I raise it is I anticipate a  26 potential problem.  I view it as a new  27 venture because it all relates to ARDA  28 applications of the Moricetown Band, but  29 I may be wrong in that interpretation.  30 The band made some submissions after the  31 issuance of the writ.  32 THE COURT:  The snowmobile being used for  33 trapping?  34 MR. GRANT:  Well, my friend is asking if the  35 snowmobile was purchased and then the  36 band got into some ventures to support  37 people, and I think the allegation will  38 be that it's related to trapping.  39 THE COURT:  I don't think it matters whether the  40 band has snowmobiles or not.  I think it  41 might matter if snowmobiles are used for  42 trapping, although I'm not sure what  43 difference it would make.  44  45 And I'm sorry, my lord, it appears that the next  46 page from that transcript I don't have, which has the  47 end of that statement.  And I can provide that to you. 22946  R. Mclntyre (for Canada)  Submission by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. GRANT  THE COURT  MR. GRANT  THE COURT  I don't have the transcripts right in the court.  But in this case, my lord, this -- Mr. Harris'  application to Special ARDA is with respect to funding  for his trapping area for his son and his nephew, and  as the witness quite ably described.  I mean he was  there assisting these people in this funding project,  Special ARDA, of course, is the version of ARDA that  is for native people.  And I would submit that in the  consequence of your rulings -- and this also dealt  with the woodlot licence of Glen Vowel1, of course,  that this is a new venture in that sense, and that  it's -- it's not relevant what particular application  was made.  I take your point and I don't disagree that a  statement made by a witness in the processing -- made  by one of the plaintiffs to this witness about the  utilization or nonutilization of a trapping area  may -- I don't concede it's relevant in the  pleadings -- but it may be relevant to my friends, and  that's not the objection.  The objection is, does this  mean that all of these funding applications encouraged  by the federal defendant I may say, encouraged by the  federal defendant, are now -- and many of them post-  litigation -- are now open for canvassing as a -- as a  grounds for some kind of extinguishment, if that's  what Mr. Macaulay is arguing that this material is  relevant to, or something of that sort.  And I say  that it's not and that there is -- that this is a  situation like that Kwakiutl document that is of such  marginal relevance when it comes to the whole question  of funding of these.  And if the witness knows  something about whether the trapline was used or not  from the plaintiff then that's a different question,  but that doesn't entail putting in the applications  though, my lord.  Well, I think I made my original ruling in this area  in order to avoid having to investigate in evidence a  demonstration that had taken place since the  commencement of the action aimed at impeding the CNR  because of a dispute about some smokehouses in the  area claimed, I think, by Mr. Art Mathews Junior, as I  recall it.  That was the initial -- there was some comment --  Yes.  -- leading to that.  Also the woodlot licence at  Glen Vowell you directly ruled on.  Yes.  Because it seemed to me that to start 22947  R. Mclntyre (for Canada)  Ruling by the Court  1 something new after the commencement of the action  2 does not relate to what is in issue at the time the  3 action was started.  But I do not think one can  4 extrapolate from that so far as to exclude relevant  5 statements made by plaintiffs about a matter in issue  6 in the case.  7 Now, I have looked at this and I do not know what  8 there is in this document that is thought to be a  9 statement that is relevant.  I do not think the fact  10 that he made an ARDA application is relevant, and I do  11 not think it matters whether his application was  12 granted in whole or in part or refused.  But I think  13 it is significant -- or may be significant,  14 sufficiently to be admissible if he -- if he made  15 statements in there that are relevant.  16 Now, he says at the bottom that he "would like to  17 open up an old trapping area."  He would "be assisted  18 by his son and perhaps his nephew.  The area that he  19 wishes to trap in is traditionally owned by his  20 family."  Now that seems to me to be material that  21 would be relevant to issues in this case and it cuts  22 both ways.  23 MR. GRANT:  Yeah.  I think that that's — that's why I say  24 the -- that kind of description, that if that is just  25 another version of the Eddie Morris notes, in other  26 words, another format, I don't object to that.  But I  27 say that the application itself -- and if my friend is  28 protected by putting in that page or pages like that,  29 I am not going to object to it.  But the application  30 itself and the proposal itself, I say is not relevant  31 and that's what I'm objecting to.  32 THE COURT:  Well, the fact that he made an application is  33 certainly of no probative value.  The statements that  34 he made in connection with the application may or may  35 not have probative value.  Therefore, it seems to me  36 that the application, if shown to have probative  37 value, can go in for that limited purpose.  38 MR. GRANT:  Well I look at, for example, page — my lord, I  39 agree with what you say.  That second page.  I look at  40 the first page "Note to Applicants", I see no  41 relevance in that.  I look at the third page which  42 only refers to partnership and remote rural community,  43 and the fourth page which says when the project is  44 expected to start, and then the fifth page of the  45 funding of the project.  And I say that -- and of  46 course the statement of the applicant that is making  47 the application.  I say those have no probative value. 2294?  R. Mclntyre (for Canada)  Ruling by the Court  1 So if my friend is saying to put in the cover just so  2 that you know what the document is, and the first  3 page -- pages 1 to 6, that's -- I have no difficulty  4 with that.  But I say why -- the whole funding and  5 everything else and what's needed and all of these  6 things, I submit is not.  7 THE COURT:  Well, considering the vast amount of completely  8 useless material we have in this trial up to now, I  9 see no reason to be tossing aside a few insignificant  10 inoffensive pages.  But we can do that if it is  11 necessary to take the time to do it, but I really do  12 not think it makes any difference if the whole  13 document goes in for the limited purpose I have  14 described or it is edited.  I really do not think we  15 ought to be worrying about editing a few pages out at  16 this stage of the trial with the amount of paper that  17 we have now.  18 MR. GRANT:  I'm not concerned about that so long, my lord, as  19 all parties understand what the document is going in  20 for.  I don't want to be taken by surprise that other  21 parts of the document that have no probative value are  22 then relied upon by one of the other parties and we  23 don't anticipate.  24 THE COURT:  You won't be hurt if it has no probative value.  25 MR. GRANT:  Well, that's why I — I am saying what is probative?  26 My friends differ with that.  They can say now --  27 THE COURT:  Are you contending for any greater admissibility  28 than what I've been discussing with Mr. Grant, Mr.  29 Macaulay?  30 MR. MACAULAY:  No, my lord.  I will draw the witness' attention  31 to the description of where the project was located.  32 THE COURT:  Yes.  33 MR. MACAULAY:  Which is the paragraph numbered three.  34 THE COURT:  Yes.  35 MR. MACAULAY:  And then paragraph numbered six that your  36 lordship has referred to, to open up an old area, and  37 then of course his signature.  It's a -- that's there  38 because this is a statement by a plaintiff.  This is a  39 named plaintiff.  4 0 THE COURT:  Yes.  41 MR. MACAULAY:  He appeared before your lordship in court in  42 Smithers as a witness.  Luus.  43 MR. GRANT:  And this document was not put to him, so I don't  4 4 know how much --  45 MR. MACAULAY:  Well, the substance of it —  46 THE COURT:  That rule can't strictly be applied in a trial of  47 this magnitude, Mr. Grant.  If everything had to be 22949  R. Mclntyre (for Canada)  Proceedings  1 put to witnesses that had to be proven, then the  2 examinations would have taken even longer than they  3 did.  4 MR. MACAULAY:  I would have to look at Luus' transcript, my  5 lord, but I propose -- because he was cross-examined  6 by two people -- I propose to ask the witness what he  7 recalls of his interview, if any, with Mr. Jeffery  8 Harris.  9 THE COURT:  Yes, all right.  10 MR. MACAULAY:  I see it's five after four.  11 THE COURT:  Well —  12 MR. MACAULAY:  Perhaps we can —  13 THE COURT:  Yes, all right.  14 MR. MACAULAY:  I could tell your lordship that, as you can see,  15 the -- there are a few more tabs.  There are -- all of  16 them, the Special ARDA tabs, which we can deal with  17 in -- you know, fairly expeditiously, I hope, once  18 we've gone through these initial difficulties.  I have  19 a few more questions to ask of the witness, not many,  20 other than those tabs.  Very few.  I should be  21 finished in an hour and that is our last viva voce  22 witness.  23 THE COURT:  All right.  Well, we'll look forward to hearing what  24 comes after that.  All right.  Ten o'clock.  Thank  2 5              you.  26 THE REGISTRAR:  Order in court.  This court stands adjourned  27 until November 28th at 10:00 a.m.  28  29 (PROCEEDINGS ADJOURNED AT 4:05 P.M.)  30  31  32 I hereby certify the foregoing to be  33 a true and accurate transcript of the  34 proceedings herein transcribed to the  35 best of my skill and ability.  36  37  38  39  40 Toni Kerekes, O.R.  41 United Reporting Service Ltd.  42  43  44  45  46  47


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