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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1989-09-15] British Columbia. Supreme Court Sep 15, 1989

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 19544  Submission by Mr. Willms  1 September 15, 1989  2 VANCOUVER, B.C.  3  4 THE REGISTRAR: Order in court.  In the Supreme Court of British  5 Columbia this 15th day of September, 1989, in the  6 matter of Delgamuukw versus Her Majesty the Queen at  7 bar, my lord.  8 THE COURT:  Mr. Willms, you're getting to your feet.  9 MR. WILLMS:  Thank you, my lord.  There are a number of matters  10 which we're going to try to look after today, my lord.  11 The first one was to be an argument with respect to  12 two maps produced by Marvin George which we obtained  13 from Mr. Skoda.  I was advised this morning that the  14 plaintiffs no longer object to the marking of these  15 maps and I spoke with Mr. Adams before court today and  16 we -- what we propose is marking the maps, then with  17 leave of the court removing the maps.  The maps are in  18 three parts.  There's two maps, three parts each, and  19 we propose to remove the original mylars, have them  20 photographically reproduced, and if that reproduction  21 works out then we have no objection, because I  22 understand Mr. George has expressed an interest in  23 these maps, they could be returned to Mr. George with  24 the proviso as with the other map of Mr. George that  25 it be returned to court if necessary.  26 THE COURT:  All right.  What exhibit numbers are these?  27 MR. WILLMS:  There have been no numbers reserved, my lord.  2 8 THE COURT:  No numbers reserved.  29 MR. WILLMS:  No, but what I thought I might do with your  30 lordship's indulgence is just make a reference now on  31 the record to where these maps were described and then  32 mark them.  33 THE COURT:  Yes.  All right.  34 MR. WILLMS:  And the references are first of all to Exhibit  35 1018-13.  3 6 THE COURT:  10 —  37 MR. WILLMS:  18-13.  3 8 THE COURT:  Yes.  39 MR. WILLMS:  Where at page 12 -- and what this is is this was  40 Mr. George's 1987 opinion.  And at page 12 Mr. George  41 said "I also produced an overlay showing all  42 administrative boundaries based on information  43 obtained from the Ministry of Forests and the Ministry  44 of Lands, Parks and Housing."  That's the exhibit  45 reference, and the two transcript references where the  46 exhibit has been or where this map has been referred  47 to, the first reference is during the 19545  Submission by Mr. Willms  1 cross-examination of Marvin George Volume 220, April  2 22nd, 1989, at pages 15988 to 15989, and during the  3 cross-examination of Mr. Skoda Volume 247, July 5th,  4 1989, pages 18168 to 18174.  So I — the first map,  5 and there are three parts to it, they're identified on  6 the bottom right-hand corner my lord as part 1 of 3,  7 part 2 of 3, and part 3 of 3, is the map entitled  8 "Administrative Boundaries" and I tender that as the  9 next exhibit.  10 THE REGISTRAR: Exhibit 1143, my lord.  11  12 (EXHIBIT 1143: Map of Marvin George entitled  13 "Administrative Boundaries" and transcript references)  14  15 THE COURT:  All three of them as one exhibit?  16 MR. WILLMS:  All three as one, my lord.  17 THE COURT:  And the number again please madam registrar?  18 THE REGISTRAR: 1143.  19 THE COURT:  Thank you.  And then they're going to be removed  20 from the custody of the registrar by --  21 MR. WILLMS:  By myself.  By defendant's counsel.  We will make  22 copies, attempt to -- we'll see whether or not we can  23 reproduce them accurately.  If we can, then we have no  24 objection to the exhibit being returned to Mr. George  25 so long as it's available.  26 THE COURT:  Yes.  All right.  Well, then it may be released to  27 you on those terms and subsequently to the plaintiffs  2 8 on the same terms you've mentioned.  29 MR. WILLMS:  Thank you, my lord.  Now, the second map, I won't  30 repeat the transcript references, my lord, for the  31 second map because the transcript references are the  32 same.  The exhibit reference is the same.  It's  33 1018-13 again Mr. George's 1987 opinion.  And in his  34 opinion in that exhibit he says "I also produced an  35 overlay showing transportation routes based on the 1  36 to 250,000 series which I obtained from the Ministry  37 of Environment and the Ministry of Forests.  This  38 overlay was produced to show where resources are  39 transported through the territories."  40 And once again, it's in three parts, my lord, and  41 unlike the first map there does not appear to be a  42 notation 1 of 3, 2 of 3, and 3 of 3, but you can line  43 them up if you line up the roads.  So I'm tendering  44 the three-part mylar of the settlement and  45 transportation route map as the next exhibit.  46 THE COURT:  All right.  That will be Exhibit 1144 then.  47 THE REGISTRAR: Yes, my lord. 19546  Submission by Mr. Willms  1  2 (EXHIBIT 1144: Map of Marvin George, three-part mylar  3 of settlement and transportation routes, and  4 transcript references)  5  6 MR. WILLMS:  And my lord the same provisions with respect to  7 this map, leave to take it away and reproduce it, and  8 if it can be successfully reproduced then we have no  9 objection to Mr. George --  10 THE COURT:  Yes.  11 MR. WILLMS:  It being returned to him.  12 THE COURT:  Yes, on the same terms as you've described.  13 MR. WILLMS:  The next item, my lord, is a minor item.  It's the  14 subject of correspondence between --  15 MR. ADAMS:  Just before my friend goes on, my lord, I have two  16 comments to add in connection with these exhibits that  17 have just been marked.  They arise out of  18 correspondence to my friend from Mr. Rush I believe of  19 July 26th, 1989.  Two points that I'm asked to make  20 are first of all that these were eventually produced  21 from the custody of Mr. Skoda and the indication was  22 that they came out of his files and had been  23 overlooked and not returned to Mr. George.  And the  24 second point was that these maps were not intended to  25 and did not form part of Mr. George's eventual final  26 opinion report.  2 7 THE COURT:  Thank you.  28 MR. WILLMS:  As I said, there has been correspondence between my  29 friend Mr. Grant and myself concerning the  30 certifications, I believe they're Exhibit 11 -- I  31 think it's 1120, my lord, the three-volume -- yes, the  32 three-volume book of certificates, and your lordship  33 will recall that two witnesses Mr. Steventon and Mr.  34 Marshall gave evidence about their certificates.  35 There were four other individuals who also certified  36 file contents.  Mr. Grant has advised that the only  37 one of the four that he wishes to cross-examine is a  38 Mr. Frank Guillon, G-u-i-1-l-o-n, and we will be  39 calling Mr. Guillon next Friday morning, that is,  40 September 22nd, in respect of his certificates.  41 THE COURT:  All right.  And everything should wait until then or  42 do you want to mark something now?  43 MR. WILLMS:  Well, my lord, I think because Mr. Grant had a  44 submission with respect to the trapline files which he  45 suggested might change depending on the  46 cross-examination of Mr. Guillon that it should wait  47 until he's completed his cross-examination of Mr. 19547  Submission by Mr. Willms  1 Guillon.  2 THE COURT:  All right.  Fine.  3 MR. ADAMS:  My lord, I understand that Mr. Grant wrote to my  4 friend this morning, and I have been provided with a  5 copy of his letter, and had indicated the plaintiffs'  6 preference for dealing with this in October when there  7 are other cross-examinations going on out of court in  8 Smithers, but had indicated that if the provincial  9 defendant insisted on proceeding that this Friday was  10 acceptable.  However, he had also proposed that that  11 cross-examination take place out of court and I  12 haven't heard a response to that proposal from my  13 friend.  And that continues to be the plaintiffs'  14 proposal.  15 MR. WILLMS:  What my response is, my lord, is that we would like  16 to call Mr. Dhillon and we think that Mr. Dhillon will  17 not take very long.  He has very little examination in  18 chief, perhaps one or two questions, and that the most  19 expeditious method of dealing with this -- Mr. Guillon  20 is down here and I think that we would rather call him  21 to give evidence in court, and that's what we propose  22 to do.  23 THE COURT:  Well, I view with some favour the idea of  24 cross-examining witnesses who are testifying too  25 rather than to matters of form out of court, but I  26 wouldn't stop you from calling him if that was your  2 7 wish.  28 MR. WILLMS:  Thank you, my lord.  The next point, and this has  29 also been the subject of correspondence between myself  30 and Mr. Grant, we propose to mark Mr. Fletcher's  31 affidavit today.  Mr. Grant suggested that we wait  32 until he had -- and the transcript has been done, but  33 the exhibits are in Mr. Grant's possession.  34 THE COURT:  Yes.  35 MR. WILLMS:  And he proposed that we wait and mark them at the  36 same time.  My lord, because the transcript and the  37 documents are in Mr. Grant's possession and we have  38 absolutely no objection to Mr. Grant marking them at  39 any time, I propose that we mark the Fletcher  40 affidavit and as with the other cross-examinations the  41 cross-examination can be A and the exhibits A-l  42 through 8, but at least this gets one of our if I can  43 call it loose ends out of the way and Mr. Fletcher's  44 affidavit is now marked.  And so I tender Mr.  45 Fletcher's affidavit.  4 6 THE COURT:  Mr. Adams.  47 MR. ADAMS:  My lord, my only response is to repeat the 1954?  Submission by Mr. Willms  Submission by Mr. Adams  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  suggestion that it would be convenient to deal with  them together and give them numbers together.  I'm not  aware how many exhibits there may have been on Mr.  Fletcher's cross-examination.  At a minimum I would  propose that we determine that and reserve numbers as  appropriate so that they travel together.  THE COURT:  Yes.  Well —  MR. WILLMS:  I can do that, my lord.  There are eight exhibits,  so I would propose that the affidavit be the next  exhibit number, that the cross-examination be that  number with a capital A, and then we can reserve 1  through 8 for the exhibits.  THE COURT:  All right.  Those numbers will be reserved and the  the affidavit may be marked as Exhibit 1145.  (EXHIBIT 1145: Affidavit of Mr. Fletcher)  MR.  THE COURT  MR. ADAMS  WILLMS:  My lord, the next matter will be the amendment, the  predecessors amendment, and my friend wants to say  something first and then I'll respond.  Yes.  Mr. Adams.  My lord, you may recall that this was a question of  adding predecessors to a number of paragraphs in the  most recent amendment of the statement of claim, and  there has been correspondence I believe involving Mr.  Grant and Mr. Goldie on this question.  Mr. Goldie at  one point had proposed that the amendments go subject  to the plaintiffs providing particulars and subject --  there was a proposal in one direction or another that  the words Gitksan and Wet'suwet'en as appropriate be  inserted before the words predecessors.  The  plaintiffs have examined the proposals both ways,  reexamined them, and wish to pursue their application  that the amendments go as originally proposed.  And  the reason for that is the plaintiffs are trying to  cover with this amendment two situations that have  emerged we say out of our evidence.  The first is  where there is either not demonstrated or is  demonstrated not to be a direct biological connection  between predecessors in title on our argument and the  present plaintiffs and the --  Such as Spookw I suppose is a possibility.  Yes.  And so the idea was hatched of not confining  ourselves to ancestors, but covering those situations  by referring to predecessors.  Then the proposal was  made that it be specified whether Gitksan or  Wet'suwet'en.  That creates a further problem again  THE COURT  MR. ADAMS 19549  Submission by Mr. Willms  Submission by Mr. Adams  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. ADAMS  based on the evidence the plaintiffs have called which  is that there may be predecessors in title in some  territories to the plaintiffs -- to the present  plaintiffs who were neither Gitksan or Wet'suwet'en,  and it's to avoid that difficulty that we now propose  to have the amendments go as originally proposed to  insert the word predecessors.  Now, there had been some suggestion by Mr. Goldie  that that created a difficulty as to knowing who was  represented in the present case, that is, was anybody  other than Gitksan and Wet'suwet'en people  represented.  And the plaintiffs' answer to that is  no, that the present day plaintiffs, the ones before  the court today, are all one or the other and so that  by speaking of predecessors there isn't any difficulty  in our submission created in the present day nature of  the representation.  So on that basis the plaintiffs  are asking that the original amendments -- and I can  go through the paragraphs if necessary.  This appears  in paragraphs 56, 56A, 57, 61, 72, 74, 74A, 75.  I  think that's all.  Now, the further outstanding question, and my  friend may want to speak to this and I could respond  to that, is whether as a price of the amendment,  however it goes, that the plaintiffs should be obliged  to provide further particulars of who in individual  cases these are said to be.  And the plaintiffs'  position on that suggestion is simply that it's not  appropriate at this stage to be requiring particulars  in a case that is already complete and in evidence,  and we say that's where the particulars are contained.  These things are proved.  That it's a matter of  research through the transcripts to determine in any  individual case where these situations are arising and  that the proposed amendments to the pleadings is  simply to cover that evidence that's already been  given.  And those are my submissions.  I suppose it would show up in the genealogies would  it?  Not necessarily.  The ancestors predecessors side of  the problem would show up in the genealogies.  The  peace settlement kind of problem would not be covered  in the genealogies, it would be covered in the  individual cases in evidence, and I certainly have not  been able to and don't propose to mind the transcripts  at this stage to say in every case where that may have  occurred. 19550  Submission by Mr. Willms  1 THE COURT:  All right.  Thank you.  Mr. Willms.  2 MR. WILLMS:  Well, my lord, the first that I heard that my  3 friends wanted to go back to the original amendment  4 was right now.  The last correspondence that we had  5 from Mr. Grant was to the effect that the restriction  6 that he proposed which was Gitksan or Wet'suwet'en  7 predecessors was satisfactory and all that we said in  8 respect of that was that you are making a motion to  9 conform to the evidence, but we would like you to tell  10 us what evidence you say that this motion conforms to.  11 We're not asking for particulars like particulars for  12 pleadings and particulars before trial, but we can  13 take some guesses at some of the evidence.  14 For example, we've heard of Samooh where the house  15 was empty and then filled up again, so there is I  16 suppose a Wet'suwet'en predecessor but not an  17 ancestor, but rather than for us to go through the  18 evidence and guess what the plaintiffs are getting at,  19 what we wanted from the plaintiffs was identification  2 0 from them of the evidence that the amendment was to  21 conform to.  And on that basis we had no objection to  22 the amendment being modified by placing either Gitksan  23 or Wet'suwet'en before the word predecessor.  24 Now, when my friend says now that really what they  25 were intending to do was to cover non-Gitksan and  26 non-Wet'suwet'en predecessors, what he is really  27 saying is that the plaintiffs' case has changed  28 completely since the opening of trial.  That the  29 plaintiffs now I suppose are entitled to say that even  30 though this territory might have been Setso at the  31 time of contact, the fact that the Gitksan may have  32 acquired it after contact means that it's now Gitksan.  33 Well, of course that's contrary to Baker Lake, as I  34 understand Baker Lake, and it's certainly contrary to  35 the way that this defendant has been defending this  36 action.  This defendant has understood that these  37 plaintiffs said that they and their ancestors since  38 time immemorial have held this land.  And for my  39 friend now to say merely to conform to the evidence  40 that they perhaps want to go back and say that the  41 Setso had the land before but now they've got it, that  42 the Talthans had it before, that the Carrier-Sekani  43 had it but they struck a deal in '85, it changes the  44 character of the lawsuit completely, my lord.  And if  45 my friends are serious in their submission that they  46 want to go back to the original pleadings, then in my  47 submission first of all there should be a complete 19551  Submission by Mr. Willms  1 argument with my friends saying exactly what they  2 intend to include by that so that we can meet it.  And  3 secondly, that argument can't be done today because if  4 this, for example, if the points that I'm suggesting  5 are what my friend is getting at, then the case has  6 changed completely since the case -- since the opening  7 of trial and radically from the pleadings.  8 But going back to the proposal which we thought  9 that we had to deal with today, which is put in the  10 modifier Gitksan, put in the modifier Wet'suwet'en  11 before predecessor, all we say in respect of that my  12 lord is that we are entitled to know what the evidence  13 is that my friend says this amendment conforms to and  14 we don't have to guess at that.  We're entitled to  15 have our friends tell us that.  16 THE COURT:  Well, aren't you going to get that in argument?  17 MR. WILLMS:  Well, that will be after we've let our evidence, my  18 lord, and that may be too late.  In my submission  19 we're entitled to know the case we have to meet.  20 THE COURT:  Well, just a moment, Miss Koenigsberg, is that a —  21 that's an argument that would have force if there was  22 any reality to it.  Are you likely to be calling  23 evidence on this issue?  24 MR. WILLMS:  Well, my lord, the evidence that has been called,  25 for example, by the plaintiffs on the archaeological  26 anthropological side, we have an expert who we're  27 going to call in that area who will refer to some of  28 the works in that area.  That evidence will go  29 directly to my friend's new predecessor view if it's  30 necessary, but it may as well go to individual house  31 lineages if they're not the ones that we guess they  32 are.  33 In addition, my lord, there are many -- there are  34 cross-examinations out of court in examinations for  35 discovery which if we find out for example that my  36 friend is going to allege that there is a predecessor  37 relationship with respect to house "X" rather than an  38 ancestral relationship with respect to house "X", that  39 may require us to read that evidence in to deal with  40 that issue.  So I have to say, my lord, yes there may  41 well be evidence that would go to those points and so  42 to hear about it in argument is too late and is  43 prejudicial to this defendant.  44 THE COURT:  All right.  Thank you.  Miss Koenigsberg?  45 MS. KOENIGSBERG:  I must confess, my lord, that it's the first  46 time I've heard of this suggestion that we're going to  47 deal with what in my submission is a substantially 19552  Submission by Ms. Koenigsberg  Submission by Mr. Adams  1 different form of pleading and those two substantive  2 issues.  And, in particular, if we're dealing with  3 predecessors who were neither Gitksan nor  4 Wet'suwet'en, I'm off the top of my head a bit  5 flummoxed as to where that puts paragraph 61, or at  6 least it's 61 being proposed, the plaintiffs and their  7 ancestors, re predecessors, exercised jurisdiction  8 over their territories against other aboriginal  9 peoples.  This defendant requested and obtained  10 particulars two years ago of that, and that list of  11 aboriginal peoples, although I don't happen to have it  12 in front of me, includes every other group around this  13 claim area, as I recall, and of course as far away as  14 the Mix Man.  So I can't put together this proposed  15 amendment with my understanding of the way in which  16 this case has proceeded.  And it in my submission at  17 least appears to go to a very substantive issue as to  18 boundaries and structure for the holding of territory  19 which I thought was at the heart of the plaintiffs'  20 case.  I have not had an opportunity to consider that  21 in term of whether we would consent to such an  22 amendment and at this time I certainly couldn't agree  23 to it and I can't understand the way it fits in with  24 paragraph 61.  If such an amendment should be allowed  25 I certainly second Mr. Willms' suggestion.  There were  26 numerous areas of evidence relating to surrounding  27 groups that have been considered to be called by both  28 defendants and on the pleadings as they may emerge now  29 that evidence will have to be reconsidered.  So it  30 would be very helpful to know.  It doesn't jump out at  31 me I'm afraid what evidence it would be that my friend  32 the plaintiffs' counsel is suggesting alters the  33 nature of whether you're Gitksan, Wet'suwet'en, and  34 exclusively have jurisdiction over this territory.  35 THE COURT:  Thank you.  Mr. Adams.  36 MR. ADAMS:  Well, my lord, first of all I disagree with my  37 friend's suggestion that this is some radical change  38 in the nature of the case.  It's an attempt to cover a  39 category of evidence that has been given and  40 cross-examined on very extensively to make sense of it  41 in terms of the pleadings.  Everyone who has given  42 evidence about the origins of their claim has been in  43 appropriate cases cross-examined as to how they came  44 by the territory, whether it came from other groups.  45 My friend Miss Koenigsberg's reference to paragraph  46 61, in my submission the way to deal with that is to  47 read it as saying appropriately from time to time. 19553  Submission by Mr. Adams  Ruling by the Court  1 Clearly when you have title you're defending it  2 against all others including the people you may have  3 acquired it from.  So that is how I would deal with  4 that problem.  But in my submission it's difficult to  5 see what would be done so radically different in the  6 case when, as the issue of the origin of title has  7 come up, it has been examined and cross-examined on.  8 The only other comment, my lord, is that  9 identifying every single case out of the evidence to  10 which this may apply out of a matter of convenience is  11 a substantial project in the middle of, for the  12 plaintiffs, in the middle of trying to deal with both  13 the defendants' cases, and on grounds of convenience  14 in my submission it's not appropriate to put the  15 plaintiffs to that task before they come to write  16 their argument which will deal with this issue.  17 THE COURT:  Well, it seems to me on the one hand that -- thank  18 you, Mr. Adams.  It seems to me on the one hand that  19 the plaintiffs' case has basically been that the  20 plaintiffs and their Gitksan or Wet'suwet'en ancestors  21 have occupied or enjoyed the lands in question from  22 some time either immemorial or prior to the time of  23 contact.  The amendment with the Gitksan or  24 Wet'suwet'en modifiers that the defendants were  25 prepared to accept would go quite some considerable  26 distance towards meeting the or matching the evidence  27 that has been adduced.  I think that the plaintiffs if  28 they wish may take that order.  29 If the plaintiffs wish to pursue the matter  30 further in order to cover the situation Mr. Adams has  31 described, then it seems to me that that does amount  32 to a departure in some parts of the case or with  33 respect to some of the lands in the case from that  34 upon which the battle has thus far been fought.  And  35 it seems to me that if there are situations where the  36 land or a parcel of the land in question came into  37 Gitksan or Wet'suwet'en enjoyment at some relevant  38 time, which I suppose for these purposes would be  39 after the time of contact, permanently or temporarily,  40 then on the present pleadings the plaintiffs might  41 fail with respect to that territory.  42 The rules are designed or have as their purpose  43 and intention that valid claims will not be defeated  44 by misjoinder or non-joinder of parties.  But before  45 the court can deal with the problem in those few  46 instances where it may arise, there has to be a clear  47 definition of where the problem exists.  The 19554  Ruling by the Court  1 defendants say at this point that they are not aware  2 of the existence of the problem in all of its aspects.  3 I don't know if they're saying they know of some but  4 they don't know of all of them or if they don't know  5 of any of them, but it doesn't matter that bottom, as  6 our English friends say, the matter has to be defined  7 and I'm uncertain about whether that should be done  8 now or in argument.  I'm inclined to think that -- no,  9 I'll put it another way.  I would like to think that  10 it could be done in argument, but I'm uneasy about the  11 possibility of depriving the defendants of an  12 opportunity to call evidence on a particular matter if  13 it should turn out that a question may arise upon  14 which evidence is required.  What causes me to pause  15 and to stay on the safe side of decisiveness is an  16 anxiety to ensure that the defendants have an  17 opportunity to call evidence on the one hand and my  18 perhaps unjustified scepticism that it's a sufficient  19 problem that evidence would solve anyway.  20 I think that the course of wisdom will be not to  21 make a further order at this time.  I think counsel  22 should understand that I may well make that order at  23 some point so as to avoid any problem of non-joinder  24 or misjoinder, and it really comes down to whether the  25 plaintiffs should have to furnish the defendants with  26 those portions of its claim where this might arise.  27 I'm persuaded I think that the plaintiffs should have  28 to specify those cases where it's -- their case  29 depends upon a non-Gitksan or non-Wet'suwet'en  30 succession.  That's a factor upon which the plaintiffs  31 are going to rely and it's a fact that I think should  32 be specified.  I think I will not fix a date when  33 that -- when those particulars or that information  34 should be furnished.  It may be unfair to the  35 plaintiffs to have to do that kind of research at this  36 stage of the case, but I think that the information  37 should be furnished in time to -- for the defendants  38 to call evidence if such is their desire, but not  39 necessarily within the time when they're calling the  40 main body of their evidence.  I think that the case of  41 each defendant, if such should be the case, can be  42 reopened for that purpose at the end of the evidence.  43 I think the defendants are entitled to have the  44 information and I'll be guided by what counsel say as  45 to what is a reasonable date, but I have in mind  46 something like December 1st.  And if, as  47 I anticipate, the provincial defendant will have 19555  Ruling by the Court  Submission by Mr. Willms  1 closed its case by that time, but decides upon  2 receiving this information that it is going to have to  3 call evidence, well then I will look favourably upon  4 an application on the part of the provincial defendant  5 to reopen its case for that purpose, and the same  6 thing for the federal defendant if it reaches the same  7 conclusion.  I have a feeling that this issue may go  8 away.  I hope it will, but I think that's the best I  9 can do with it at this time.  10 MR. WILLMS:  My lord, on that point, and we requested a formal  11 motion for amendment from my friends the first time  12 around so that we would know the amendment we'd have  13 to meet.  I reread the transcript on Mr. Grant's  14 submission on what he meant by successors, which was  15 the initial suggested amendment, and he told your  16 lordship at page 18420 at line -- starting at line 11,  17 after referring to the paragraphs, he said:  "That is  18 intended, my lord, to reflect the evidence that you've  19 heard that in certain cases the present holders may  20 have been adopted in, may not be biologically  21 connected, and that amendment is throughout those  22 paragraphs I've listed."  And then your lordship said:  23 "I suppose it could also refer to a chief who was  24 selected to be chief upon the death of a previous  25 chief, but not in the direct bloodline of the former  26 chief, would it?" And Mr. Grant said "Right." Your  27 lordship said "Does it go any further than that?" And  28 Mr. Grant said "Well, I think you are saying it in a  29 different way than what I have said, which is that  30 where the present holder, for example, or some holder  31 in the past, their biological connection is chosen as  32 a successor, but there's not a direct biological  33 line."  34 Now, my lord, that was what Mr. Grant suggested  35 successor meant.  That was why predecessor with  36 Gitksan or Wet'suwet'en was placed in front of it.  37 What my friend now suggests, and in my submission it  38 is a radical departure, and I -- reliance on  39 technicalities is something that should be averted at  40 all costs, but I request, respectfully request, that  41 my friend if he wants to amend to read predecessor  42 that he files a motion and that there be a time set  43 aside to argue it because in my submission, my lord,  44 the prejudice here goes far beyond what my friend has  45 alluded to; far beyond.  A whole case has been  46 litigated for two years on the basis of the  47 pleadings as they're presently framed, and for my 19556  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  Ruling by the Court  Submission by Mr. Adams  Submission by Ms. Koenigsberg  friend now to suggest that somehow non-Gitksan or  non-Wet'suwet'en predecessors give these plaintiffs  some rights of enjoyment to these lands is something  that was unknown to these defendants until today and  it affected the course of arranging expert testimony,  it affected the course of cross-examination of  plaintiffs' witnesses.  It is unfairly prejudicial to  this defendant and in my submission so unfairly  prejudicial that it changes the course of the defence.  And it is my submission, my lord, that if my friend is  serious about the predecessor amendment rather than  the Gitksan or Wet'suwet'en version that your lordship  has just acceded to that he should file a motion and  that a date should be set to argue it fully so that  your lordship can fully appreciate the prejudice to  the defence to allow an amendment like that at any  time.  MR. ADAMS:  Well, my lord, of course there is a motion  outstanding in the terms that I have asked for this  morning.  There's no doubt that the further problem  that I've attempted to set out this morning is  something new that occurred to the plaintiffs in the  sense of looking at their pleadings and realizing that  a difficulty might be created by the amendment itself.  THE COURT:  But of course making the amendment doesn't close the  concept with legal validity in any way.  MR. ADAMS:  No, of course.  It's to leave open -- to leave  available the argument --  THE COURT:  The argument.  MR. ADAMS:  — that the amendment is sought.  THE COURT:  Well, I'm doing nothing — I'm sorry, Miss  Koenigsberg.  MS. KOENIGSBERG:  I was just going to suggest that I second my  friend Mr. Willms' motion should the plaintiffs come  back from your lordship's ruling thus far today.  As I  understand it, at this point Gitksan-Wet'suwet'en, if  the plaintiffs choose to adopt that modification, it  does form part of their pleadings before the word  predecessors.  If they choose to come back to the  court and seek to remove Gitksan-Wet'suwet'en, then I  certainly would say that in my submission we are into  a clear change and it should be argued before your  lordship.  But I'm content at least that at this point  that your lordship's ruling and your comments on when  they should provide these particulars, if you will, is  appropriate and in fact the particulars may not be  necessary if they don't seek to amend in the end. 19557  Submission by Mr. Willms  1 THE COURT:  I don't think I need to say anything more.  I've  2 probably confused you quite enough.  The number of  3 different discreet claims that might be affected by  4 this seem to me to be quite limited.  I may be wrong  5 in that.  That's an impression I have from a very  6 quick panoramic scan of the evidence.  But if it  7 assumes the proportions that Mr. Willms describes,  8 then that's a matter that will have to be considered.  9 I would not want to be taken to be saying now with  10 certainty that the amendment will be made.  I think we  11 ought to decide that question in the light of a little  12 better understanding of the magnitude and the scope of  13 the problem.  So I think I'll leave it at that.  If  14 you want to pursue the matter, Mr. Adams, then you of  15 course won't take the amendment that I've tentatively  16 ordered today.  If you take the amendment that I've  17 ordered and notify your friends accordingly, then  18 that's the end of the matter.  All right.  Thank you.  19 MR. WILLMS:  Just one further thing on that, my lord.  We did  20 suggest that although we knew of some cases where  21 there were Gitksan and Wet'suwet'en predecessors, we  22 wanted to be sure that we were ad item with my friends  23 and it may not be a difficult task for my friends to  24 say if it's five houses which five houses it is.  25 THE COURT:  I confess to say I don't remember any of them, but  26 if there are some I'll be interested to know.  27 MR. WILLMS:  Well, we've got Axtii Hiikw, Spookw, Delgamuukw.  28 THE COURT:  But they're all either Gitksan or Wet'suwet'en.  29 MR. WILLMS:  No, no, that's true.  What we wanted -- what we  30 suggested as a condition of that amendment, the one  31 that your lordship has acceded to, was that we have  32 some notice of the evidence that that was conforming  33 to.  And perhaps the way that we could do it is we can  34 write a letter to our friends and list what we think  35 it relates to, and if they don't agree then they can  36 further advise us.  Maybe that would be the method to  37 deal with that.  But we would rather not find out in  38 closing argument that in the -- in a particular house  39 in the house of Goohlaht that they're not claiming a  40 hereditary line of succession, but there's a  41 predecessor that comes in for some particular reason  42 which we've never seen before and is contrary to our  43 understanding of the plaintiffs' case.  And it's just  44 to deal with that out of fairness to the defendants  45 that we wanted to have an appreciation of what  4 6 evidence my friends think this amendment conforms to.  47    THE COURT:  Well, I think that what you're suggesting might be a 1955?  Submission by Mr. Willms  1 useful thing to do, but I'm not at the moment  2 persuaded that the amendment that I have approved thus  3 far, which the plaintiffs may not accept, is one that  4 requires particulars.  It deals with a situation that  5 we have -- that has been canvassed in the evidence and  6 each party is able to identify those situations.  And  7 what you're really asking me in this regard, Mr.  8 Willms, to do is to impose an agreement or -- on the  9 facts, which isn't the traditional way in which  10 lawsuits are conducted at this stage.  I think the  11 evidence is at large and both sides know what's there,  12 and if there are cases along the lines that you've  13 described such as Delgamuukw, you both know about it,  14 presumably you both know about others if any.  I don't  15 think I would go so far as memorialize what you have  16 just suggested as a requirement.  17 MR. WILLMS:  Now, my lord, the next item today would be on the  18 cross-examinations on the territorial affidavits.  We  19 have not as yet marked the cross-examinations and the  20 exhibits and we propose now to proceed through and my  21 colleague Miss Sigurdson will tender the  22 cross-examinations and relate them to the appropriate  23 territorial affidavit by exhibit number.  24 THE COURT:  Thank you.  This is a matter you said you were going  25 to deal with today isn't it, Mr. Adams?  2 6 MR. ADAMS:  Yes, my lord.  27 THE COURT:  Yes, thank you.  28 MS. SIGURDSON:  My lord, there are some 23 territorial  29 affidavits and they were marked earlier in the trial.  30 I have the transcripts and copies of the exhibits and  31 to save time what I've done is suggested proposed  32 exhibit numbers.  33 THE COURT:  Yes.  34 MS. SIGURDSON:  And the format of that is the affidavit exhibit  35 number --  3 6 THE COURT:  Yes.  37 MS. SIGURDSON:  — the transcript would be that number -A, and  38 all exhibits would be A, -1-A, -2, et cetera, as  39 required.  Perhaps for convenience and to save time if  40 I could just refer to the transcripts and exhibits  41 we're tendering now they could be marked out of court  42 at madam registrar's convenience.  43 THE COURT:  Yes.  All right.  She's looking forward to this.  44 MS. SIGURDSON:  I know she is.  The first transcript would  45 relate to the affidavit of Mary Moore which is Exhibit  46 593.  47 THE COURT: Mary Moore. 19559  Proceedings  1 MS. SIGURDSON:  Mary Moore.  Yes.  2 THE COURT: And that exhibit number is?  3 MS. SIGURDSON:  The affidavit is exhibit number 593.  4 THE COURT:  Yes.  5 MS. SIGURDSON:  The next is the affidavit of Arthur Ridsdale,  6 R-i-d-s-d-a-1-e, which is Exhibit number 594.  The  7 third is the affidavit of David Green, Exhibit number  8 595.  The fourth is the affidavit of Thomas Jack which  9 is Exhibit 596.  10 And in that regard I would just like to note that  11 a number of the exhibits were marked for  12 identification on the cross-examination.  Those are  13 exhibits on the cross-examination 8 to 25 and those  14 the identification designation was removed by  15 agreement.  16 THE COURT: All right.  17 MS. SIGURDSON:  The next is Solomon Jack.  The affidavit is  18 Exhibit number 597.  19 Following that is Abel, A-b-e-1, Sampson.  The  20 affidavit is Exhibit number 600.  21 THE COURT:  Is that S-a-m-s-o-n?  22 MS. SIGURDSON:  S-a-m-p-s-o-n.  2 3 THE COURT:  Thank you.  24 MS. SIGURDSON:  The next is Joshua McLean, M-c-L-e-a-n, Exhibit  25 603.  26 THE COURT:  Is he the gentleman that lives at Kisgagas?  27 MS. SIGURDSON:  Yes.  2 8 THE COURT: Yes.  Thank you.  29 MS. SIGURDSON:  The next is Gerald Gunanoot and the affidavit is  30 Exhibit 604, and I note with that one there are no  31 exhibits marked on that cross-examination so it will  32 just be the transcript.  Then Herbert Wesley,  33 W-e-s-1-e-y, the affidavit is Exhibit 607.  Ernest  34 Hyzims, H-y-z-i-m-s, the affidavit is Exhibit 608.  35 The next is Frederick Wale, W-a-l-e, Exhibit 611.  The  36 next is Freddy Charlie, the affidavit is Exhibit 663.  37 Elizabeth Jack, and the affidavit is Exhibit 666, and  38 then there are no exhibits marked on that  39 cross-examination.  Mary Joseph, Exhibit 667, and  40 again no exhibits were marked on that  41 cross-examination.  Following that is Stanley Morris  42 who substituted for Jimmy Morris and that was Exhibit  43 669.  The next is Roy Morris and the affidavit is  44 Exhibit number 670.  Then Thomas K. Morris, Exhibit  45 number 671.  Following that is Pat Namox, N-a-m-o-x,  46 Exhibit number 672.  Following that is Elsie Quaw,  47 Q-u-a-w.  No exhibits were marked on that 19560  Proceedings  1 cross-examination, and her affidavit was Exhibit 673.  2 Next is Charlie Austin, A-u-s-t-i-n.  His affidavit  3 was Exhibit 674.  Mary Skin, Exhibit 675.  Warner  4 William, his affidavit was Exhibit 677 and there are  5 no exhibits marked on that cross-examination.  And  6 lastly, the cross-examination on the affidavit of  7 Irene Daum, D-a-u-m.  That affidavit was Exhibit 678  8 and no exhibits were marked on that cross-examination.  9 So I'll tender to madam registrar now a set of the  10 exhibits from those cross-examinations and a set of  11 the transcripts from those cross-examinations.  12  13 (EXHIBIT 593-A: Transcript of Cross-exam of Mary  14 Moore, November 30, 1988)  15 (EXHIBIT 593-A-l: Public Archives of Canada File re:  16 Trapline of T. H. Brown)  17 (EXHIBIT 594-A: Transcript of the Cross-exam of Arthur  18 Ridsdale, December 1988)  19 (EXHIBIT 594-A-l: Affidavit of Arthur Ridsdale sworn  20 Feb. 3, 1987 and interrogatories 87(a) and 59(c))  21 (EXHIBIT 594-A-2: Interrogatories map of  22 Luutkudziiwus)  23 (EXHIBIT 595-A-l: B.C. trapline registration dated  24 October 10, 1985)  25 (EXHIBIT 595-A-2: Relinquishment of trapline signed by  2 6 Emma Green)  27 (EXHIBIT 596-A-l: Return of Registered trapline holder  28 (Thomas Jack)  29 (EXHIBIT 596-A-2 ID: Application for Crown Land by  30 Thomas Jack dated August 6, 1981)  31 (EXHIBIT 596-A-3: Letter from Thomas Jack to Gary Jung  32 dated December 14, 1981)  33 (EXHIBIT 596-A-4 ID: Extracts from AG Canada Doc.10638  34 re Gunanoot/Bear Lake Charlie trapline dispute)  35 (EXHIBIT 596-A-5: Topographic Survey Sheet re Motase  36 Lake)  37 (EXHIBIT 596-A-6  38 (EXHIBIT 596-A-7  39 (EXHIBIT 596-A-8  Top. Survey Sheet re Drift Lake)  Topographic Survey Sheet re 'Creek'  Top. Survey Sheet re Big Kettle  4 0 Fumarole)  41 (EXHIBIT 596-A-9: Top. Survey Sheet re Azuklotz Lake)  Top. Survey Sheet re Azuklotz Lake)  42 (EXHIBIT 596-A-10  43 (EXHIBIT 596-A-ll  44 (EXHIBIT 596-A-12  45 (EXHIBIT 596-A-13  46 (EXHIBIT 596-A-14  47 (EXHIBIT 596-A-15  Topographic Survey Sheet re 'Lake'.  Top. Survey Sheet re Bear River)  Top. Survey Sht. re Sitchiada Mtn.)  Top. Survey Sht. re Drift Lake)  Top. Survey Sheet re 'Mtn. Area') 19561  Proceedings  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  (EXHIBIT  (EXHIBIT  (EXHIBIT  (EXHIBIT  (EXHIBIT  (EXHIBIT  596-  596-  596-  596-  596-  596-  A-16  A-17  A-18  A-19  A-2 0  A-21  Top.  Top.  Top.  Top.  Top.  Top.  Survey Sht.  Survey Sht.  Survey Sht.  Survey Sht.  Survey Sht.  Survey Sht.  re  re  re  re  re  re  'Creek')  'Mountain')  'Creek')  'Creek')  'Creek')  Head of  Top.  Top.  Top.  Driftwood River)  (EXHIBIT 596-A-22  (EXHIBIT 596-A-23  (EXHIBIT 596-A-24  (EXHIBIT 596-A-25  note book dated December 16, 1982)  (EXHIBIT 596-A-26: Extract from N.  Interview  5 9 6-A-2 7:  Survey Sheet re Onerka Lake)  Survey Squingula River)  Survey Sht. re Sitchiada Mtn.)  Extract from N. Sterritt's field  notes re  (EXHIBIT  2, 1975)  (EXHIBIT  with T.  Letter  Sterritt's field  Jack dated May 12, 1988)  from William Jack dated  July  5 9 6-A-2E  M. Mclntyre to  Letter from R.  William Jack dated July 21, 1975)  (EXHIBIT 597-A: Trans, of cross of Solomon Jack)  (EXHIBIT 597-A-l ID:  Genealogy)  (EXHIBIT 597-A-2 ID: McConnell Creek Map)  (EXHIBIT 600-A: Transcript Cross-exam of Abel Sampson)  (EXHIBIT 600-A-l: Letter dated June 24, 1983 re Peter  Wilson's trapline)  (EXHIBIT 600-A-2: Top. Sht. re "Junction Bear  River/Sustut River")  (EXHIBIT 603-A: Transcript of Cross of Joshua McLean)  (EXHIBIT 603-A-l: 9 pgs. of ARDA Appl. of J. McLean)  (EXHIBIT 603-A-2: Map of William McLean trapline)  (EXHIBIT 603-A-3(a) ID: N. Sterritt's notes of  interview with Joshua McLean)  (EXHIBIT 603-A-3(b): Sketch map trapline of W. McLean)  (EXHIBIT 608-A: Transcript of Cross-exam of E. Hyzims)  (EXHIBIT 608-A-l: Affidavit of E. Hyzims sworn Feb.  16, 1987 and interrogatories)  (EXHIBIT 611-A-l: Will of William Wale and 6 sketches)  (EXHIBIT 611-A-2: Extract from AGBC Doc. #3939 re Amos  Williams/Phillip Johnson Trapline dispute)  (EXHIBIT 611-A-3  (EXHIBIT 611-A-4  (EXHIBIT 611-A-5  (EXHIBIT 611-A-6  Genealogy of House of Gwoimt)  Sketch  Letter from Muirhead to Mortimer)  Letter from Mortimer to Muirhead  dated July 17, 1935)  (EXHIBIT 663-A: Transcript of Cross-exam of F.Charlie)  (EXHIBIT 663-A-l: Notes of M. George's interview with  F. Charlie)  (EXHIBIT 663-A-2: Appl. for Reg. of a Trapline of 19562  Proceedings  1 Francois Baptiste)  2 (EXHIBIT 663-A-3: Declaration of Clara Baptiste re  3 John Baptiste & Co. trapping grounds)  4 (EXHIBIT 670-A-l: Roy Morris Interview of L. George)  5 (EXHIBIT 670-A-2: Will of Nora Lee Matthew Sam)  6 (EXHIBIT 670-A-3: Letter signed by Roy Morris dated  7 October 15, 1958)  8 (EXHIBIT 670-A-4 ID: Letter from R. Morris to Indian  9 Agent dated July 18, 1962)  10 (EXHIBIT 670-A-5 ID: Letter from W. J. Desmarais to  11 Roy Morris dated November 4, 1959)  12 (EXHIBIT 670-A-6 ID:  Letter from W. Desmarais to Roy  13 Morris dated July 23, 1962)  14 (EXHIBIT 670-A-7: Memo dated October 21, 1982, of Roy  15 Morris to Regional Manager Fish and Wildlife)  16 (EXHIBIT 670-A-8 ID:  Photocopy of Map of Roy Morris  17 Registered Trapline)  18 (EXHIBIT 670-A-9 ID: Application for Registration of  19 Trapline of Roy Morris)  20 (EXHIBIT 670-A-10 ID:  Application for Renewal and  21 Return of Registered Trapline Holder (Roy Morris))  22 (EXHIBIT 670-A-ll: Letter from Roy Morris, re  23 permission to trap)  24 (EXHIBIT 670-A-12: Application for Renewal and Return  25 of Reg. Trapline of R. Morris dated November 9, 1976)  26 (EXHIBIT 670-A-13: Copy of Roy Morris' copy of will of  27 Nora Lee Matthew Sam)  28 (EXHIBIT 670-A-14: Roy Morris' map of trapline at  29 Francois Lake)  30 (EXHIBIT 670-A-15: Letter dated January 14, 1974)  31 (EXHIBIT 670-A-16: Marvin George Interview with Roy  32 Morris dated March 16, 1988)  33 (EXHIBIT 670-A-17 ID:  Letter from Catherine Michell  34 to Mr. Mclntyre dated January 15, 1974)  35 (EXHIBIT 672-1: Affidavit of Pat Namox March 3, 1989)  36 (EXHIBIT 672-2: Application for Reg. of a Trapline of  37 Jean Baptiste Namox dated Nov. 10, 1981)  38 (EXHIBIT 672-3: Band Council resolution of Moricetown  39 Band dated June 11, 1980)  40 (EXHIBIT 672-4: Band Council resolution of Moricetown  41 Band dated September 10, 1979)  42 (EXHIBIT 672-5: John Namox interrogatories map)  43 (EXHIBIT 672-6 ID: Map entitled 'Territory of Wah Tah  4 4 Kwets')  45 (EXHIBIT 674-1: Affidavit of C. Austin, March 9, 1989)  46 (EXHIBIT 674-2: Application for reg. of trapline dated  47 March 13, 1979 of C. Austin) 19563  Proceedings  1 (EXHIBIT 674-3: Letter dated February 1, 1987 from  2 Walter Joseph to Mr. Cox)  3 (EXHIBIT 674-4: Band Council resolution dated February  4 1, 1977 of Hagwilget Band)  5 (EXHIBIT 675-1: Trapline reg. for Mary Skin dated May  6 1, 1974)  7  8 THE COURT:  Thank you.  Are the exhibits attached to the  9 transcripts in some way?  10 MS. SIGURDSON:  They are in a separate bundle, but they are  11 labelled and with the proposed exhibit numbers beside  12 them.  13 THE COURT:  Yes.  Thank you.  14 MR. WILLMS:  My lord, the next item of business is the reading  15 in of discovery from Sylvester Green and Sylvester  16 William and what I propose to do is to tender a list  17 with the questions that we propose be read in, rather  18 than taking up time in court reading them in, along  19 with the transcript.  2 0 THE COURT:  All right.  21 MR. WILLMS:  We could deem that the questions then be read in  22 and that would be I'm sure a happy point for madam  23 reporter.  2 4 THE COURT:  Yes.  25 MR. WILLMS:  But then if my friend had anything which he thought  26 related to the discovery that was read in he could  27 then point that out rather than us reading each  28 question in at this time if that's agreeable with my  29 friend.  30 THE COURT:  He can do that at any time.  31 MR. WILLMS:  He could do that at any time if he says that  32 there's something that relates that should be read in  33 as well.  34 MR. ADAMS:  My lord, I'm agreeable to proceeding this way.  I  35 have a list for Mr. Green and almost finished for Mr.  36 William of the additional questions that I propose be  37 added and I will simply match that with my friend's  38 list.  39 THE COURT:  Is there a lot of questions, Mr. Willms?  40 MR. WILLMS:  Well, my lord, if I could hand up to your lordship  41 the sheet, and I have a copy for madam reporter, and  42 what I propose to do is just simply hand up --  43 THE COURT: Well, it isn't what I would call extensive by today's  44 standards on discovery and for that reason -- and the  45 reason why I inquired is that I don't think I will  46 read any of it until I get Mr. Adams' response so that  47 I can look at them both at the same time and kill two 19564  Proceedings  1 beers with one stein as I heard a man say.  2 MR. WILLMS:  The transcript of the examination of Sylvester  3 Green, my lord, is April 22nd, 1987 and I have a copy  4 for your lordship.  5 THE COURT:  Thank you.  6 MR. WILLMS:  And a copy for madam reporter.  7 THE COURT:  Yes.  I suppose I should have added to that that  8 looking at and taking into account the connected parts  9 that are brought to my attention by Mr. Adams involves  10 a judicial function of sorts and I would have to give  11 you an opportunity to say if such is the case after  12 you get the list that you don't think I should take --  13 MR. WILLMS:  I would anticipate that that's the way we would --  14 THE COURT:  So I don't think I should embark upon this project  15 until I've heard from both of you.  16 MR. WILLMS:  Well —  17 THE COURT:  The one function being to read the part that you  18 want to read in and the second function being to  19 decide whether the parts Mr. Adams mentions are  20 sufficiently connected with the part you read in to  21 make it as well part of the evidence in the case.  22 MR. WILLMS:  All right.  Well, to that extent, my lord, I'm not  23 suggesting that your lordship read it today.  24 THE COURT:  Oh, no.  25 MR. WILLMS:  I'm suggesting though that it be deemed to have  26 been read in and that's why and perhaps -- I think I  27 should mark the list as an exhibit.  2 8 THE COURT:  Yes.  29 MR. WILLMS:  And.  30 THE COURT:  All right.  That will be the next exhibit number.  31 THE REGISTRAR: Exhibit 1146.  32  33 (EXHIBIT 1146:  List of questions and answers of  34 discovery evidence to be read in for S. Green and S.  35 William)  36  37 MR. WILLMS:  And as I said, my lord, and I've handed up  38 Sylvester Green of April 22nd, 1987, and I'm now  39 handing up Sylvester William, one for madam reporter  40 and one for your lordship, and Sylvester William is  41 April 16th, 1987, and ask again that the questions  42 referenced on --  43 THE COURT:  Exhibit 1146.  44 MR. WILLMS:  On Exhibit 1146 be deemed to have been read in  45 subject to the same conditions that we've already  46 discussed.  4 7 THE COURT:  So deemed. 19565  Discovery read-  'ñ†in  of  S.  Green  by  Mr.  . Willms  1  MR.  , WILLMS:  2  3  "EX  AMI!  4  1  Q  5  A  6  2  Q  7  8  A  9  3  Q  10  A  11  4  Q  12  A  13  5  Q  14  A  15  6  Q  16  17  A  18  19  20  7  Q  21  22  23  A  24  8  Q  25  A  26  27  9  Q  28  A  29  10  Q  30  A  31  32  11  Q  33  34  A  35  12  Q  36  37  38  A  39  40  13  Q  41  42  43  A  44  14  Q  45  46  A  47  riON BY MR. PLANT:  Your name is Sylvester Green?  Yes, it is.  And were you born on September the 14th,  1943?  Yes.  And you are a Plaintiff in this lawsuit?  Yes, I am.  Do you know what that means?  A Plaintiff?  Yes.  Yes, I do.  What is your understanding of the meaning  of that term, or your role as Plaintiff?  I am bringing this ation against the  Province and Federal governments and I am  the Plaintiff of this action.  As I understand it you are a student at  Northwest Community college; is that  correct?  Yes, I am.  What are you studying?  Right now I am upgrading, and when I am  finished I will be going into accounting.  Did you say that you were upgrading?  Yes.  What does that mean?  That's getting my identification up to  grade ten or grade twelve, eleven.  And you used to work at the sawmill in  South Hazelton?  Yes.  If you have any problem hearing me please  let me know, because I do not want you to  guess.  Yeah, I am not guessing.  I was working in  the sawmill.  I am sure that you would know that, but I  was not sure whether you heard the  question.  Yeah.  What is the name of the mill in South  Hazelton?  It was called South Hazelton Sawmill when ]  first worked there, and it has been 19566  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  Discovery read-in  of S. Green  by Mr. Willms  15   C  16  17  changed; but now it's called Westar.  Q   How long did you work there; how many  years?  A   I worked there about eight or nine years.  Q   Do you still work there or do you go to  school now full-time?  A   Oh, I am going to school full-time,  Northwest College.  Q   Did you have other jobs before you worked  at the sawmill?  A   Let's see; yes, I did.  18 Q   What were they?  A  Well, I worked in the sawmill in Quesnel,  sawmill in Nanaimo, and I worked in the  construction crew Hazelton, laying pipes,  and that's about all I can remember for  now.  There is more I know.  19 Q   I understand that you are a member of the  Laksilyu or Frog clan of the Gitksan?  Yes, I am.  Which clan owns the territory that this  sawmill in South Hazelton sits on?  I have no idea on that.  So, would I be correct in assuming that you  never asked anybody's permission, that is  to say, any Gitksan person's permission to  go on the land where the sawmill was, or  is?  A   Go through that again.  22 Q   Sure.  You say you do not know which clan  holds the land that the sawmill sits on?  A   Yeah, I don't know who owns it, which clan.  23 Q   You never asked anybody's permission to go  on to that land; you did not go to one of  the hereditary Chiefs of the Gitksan and  say:  "Do you know if it's all right if I  go on this land"?  A   I don't know who to ask; I don't understand  what you are saying there.  24 Q   All right.  You would not know who to ask?  A   If I knew, I would ask.  43 Q You have two children?  A Yes, I do.  44 Q And are they also Laksilyu?  A Yes, they are.  A  20  Q  A  21  Q 19567  Discovery read-in  of S. Green  by Mr. Willms  1 45   Q   What House?  2 A   Gyetm Galdoo -- oh, what House, gee, I  3 don't know what House they are.  4 46   Q   I will, I may be able to help you, I have a  5 document here which is an affidavit this  6 has your signature --  7 A   Yeah.  8 47   Q   — attached to it.  9 A   Yeah.  10 48   Q   And it also -- I am sorry, an affidavit  11 which it appears that you have signed and  12 it has attached to it some answers to  13 interrogatories, and I would like you to  14 just have a look at the first and second  15 pages of that and tell me if the signature  16 on the second page is yours; the signature  17 that looks like Sylvester Green?  18 A   That one there(indicating)?  19 MR. PLANT:  20 49   Q   Yes.  21 A   That likes looks the signature of Sylvester  22 Green.  23 50   Q   It does; does it not?  24 A   Yeah.  25 51   Q   Is it your signature?  26 A   Yes.  27 52   Q   Mr. Green, this affidavit is dated February  28 the 9th, 1987; do you see that?  29 A   February 9th, 1987, yeah.  30 53   Q   Do you remember signing that?  31 A   Yeah, I remember signing that.  32 54   Q   On page four in answer to question eighteen  33 you say that your children are Jennifer,  34 age eight, and David, age six.  Do you see  35 that(indicating)?  3 6                     A   Um-hum.  37 55   Q   Yes.  38 A   Yeah, I see that.  39 56   Q   It will help the Reporter if you say "yes"  40 or "no".  41 A  All right.  42 57   Q   He cannot record a nod.  43 A   Okay.  44 58   Q   You also say both lived in Terrace, that is  45 both of your children; is that correct?  46 A   Yeah, that is correct.  47 59   Q   And you say both belong to the Laksilyu 1956?  Discovery read-  'ñ†in  of S. Green  by Mr. Willms  1  2  A  3  60  Q  4  A  5  61  Q  6  7  A  8  62  Q  9  A  10  63  Q  11  A  12  13  116  Q  14  15  A  16  17  117  Q  18  A  19  118  Q  20  A  21  119  Q  22  A  23  120  Q  24  25  A  26  27  121  Q  28  29  A  30  122  Q  31  32  A  33  34  35  186  Q  36  A  37  187  Q  38  A  39  188  Q  40  A  41  42  A  43  189  Q  44  A  45  46  47  190  Q  clan and the House of Tsabux?  Tsabux.  Tsabux?  Yeah, that's, yeah, that's correct.  And so your children belong to the House of  Tsabux?  Um-hum.  Yeah.  Is that a Gitksan House?  Gitksan House, yes, it is.  Do you know who the Chief of the House is?  No, not offhand.  Is the House of Wii Gobil, separate and  distinct from the House of Gyetm Galdoo?  Is the House separate?  How would you put  that plainly?  Are they different Houses?  Are they different Houses?  Yes.  Gee, I don't know how to answer that one.  Why is that?  Let's see --  Is it because you do not know the answer or  because you do not understand the question?  It will come -- the House, okay, ask that  question again.  Is the House of Wii Gobil different from  the House of Gyetm Galdoo?  I don't, I don't know.  Is the House of Wii Gobil part of the House  of Gyetm Galdoo?  Oh yeah, yeah, um-hum.  Who is your sister?  Hazel Holland.  Does she live in Agassiz?  She does, yeah.  Do you know where Hazel's children live?  Georgette --  (EXHIBIT SHOWN TO WITNESS)  Yeah, I was trying to remember offhand.  Sure, please, have a look.  Let's see.  Okay, Lorellie lives in  Vancouver.  Oh, yes, I know where they  live.  Could you please tell me. 19569  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  Discovery read-in  of S. Green  by Mr. Willms  A Okay. Winnifred lives in Victoria. Angie  lives in Alberta. Billy George and Gordie  lives in Vancouver. Hertha lives in  Victoria -- oh, no, I have forgotten where  Hertha lives, but Donna she lives in  Victoria and Georgette -- I have forgotten  where Georgette lives.  195 Q   Mr. Green, Johnny Wilson holds the name  Skiik'm lax ha; is that correct?  A   Skiik'm lax ha.  196 Q   Is Skiik'm lax ha the Chief of a House?  A   Yes, he is.  197 Q   And is Skiik'm lax ha a Chief in the House  of Gyetm Galdoo?  A   Yes, he is.  198 Q   And is Skiik'm lax ha a Chief in the House  of Wii Gobil?  A   In the house of Wii Gobil?  199 Q   Yes.  A   The House of Wii Gobil, Skiik'm lax ha,  that sounds like the question you asked me  before, wasn't it?  200 Q   Well, it is all part of my continuing  problem to try and sort out what all the  different Houses are.  And I think you have  just told me that Johnny Wilson, as Skiik'm  lax ha, was a chief in the House of Gyetm  Galdoo?  A   Yes, he is.  201 Q   Is he also a Chief in the House of Wii  Gobil?  A   He may be, but he is a Chief.  202 Q   Does Johnny Wilson as Skiik'm lax ha have  his own territory?  A   Yes, he does.  203 Q   Is that territory different from the  territory of Wii Gobil?  A   Yes, there is a different territory.  204 Q   Also different from Gyetm Galdoo's  territory?  A   Yes, it's different.  205 Q   So, now we have got three territories; we  have the territory of skiik'm lax ha?  A   (WITNESS NODS HEAD.)  206 Q   'Yes.'  A   Yes. 19570  Discovery read-  'ñ†in  of S. Green  by Mr. Willms  1  207  Q  2  A  3  208  Q  4  A  5  209  Q  6  7  8  9  10  A  11  210  Q  12  13  14  A  15  16  17  211  Q  18  19  20  A  21  22  212  Q  23  24  A  25  213  Q  26  A  27  28  214  Q  29  A  30  215  Q  31  A  32  216  Q  33  34  A  35  217  Q  36  37  A  38  39  229  Q  40  41  A  42  230  Q  43  A  44  231  Q  45  A  46  47  We have the territory of Wii Gobil?  Wii Gobil.  And we have the territory of Gyetm Galdoo?  Gyetm Galdoo, yeah.  Now, Martha Ridsdale says in her answers to  the interrogatories that were delivered to  Jessie Sterritt that Skiik'm lax ha is  authorized to speak for the other chiefs in  her house according to Gitksan laws?  Skiik'm lax ha is authorized you say?  Well, I do not mind showing it to you, it  is the answer to question number  thirty-four.  If that is Martha Ridsdale's answer it may  be true because she is, she is my elder and  she knows more than I do.  Do you know from your own knowledge whether  Johnny Wilson speaks for the Chief of Wii  Gobil's House in this case?  I don't know; he may be able to speak if  the elders say he can speak, he can.  Does Johnny Wilson speak for you in this  case?  I speak for myself.  Yes.  But he can if I ask him to, he can speak  for me.  You have not asked him to, though?  No, I haven't.  Are you planning to ask him?  I don't think so.  Johnny Wilson is also Laksilyu; is that  correct?  Yes, he is.  Do you know if Johnny Wilson is Jessie  Sterritt's son?  Yes, he is.  Yes.  Have you trapped in the Skeena or the  Bulkley area?  (NO ANSWER).  Do you know what I mean by trapping?  Yeah, right.  All right.  I am trying to recall.  No, I don't think  so, no. 19571  Discovery read-  ■in  of S. Green  by Mr. Willms  1  258  Q  2  A  3  259  Q  4  5  6  7  A  8  260  Q  9  10  11  A  12  261  Q  13  A  14  262  Q  15  A  16  263  Q  17  18  A  19  20  268  Q  21  A  22  269  Q  23  A  24  270  Q  25  A  26  27  277  Q  28  A  29  278  Q  30  A  31  279  Q  32  A  33  34  280  Q  35  A  36  37  337  Q  38  39  40  A  41  338  Q  42  43  44  A  45  339  Q  46  47  Attached to Exhibit '1' —  Yeah.  -- as Schedule (C) is a map, and in  question number 59 (C) in the  interrogatories you were asked:  'What are  the boundaries of your House's territory'?  Yeah.  You say:  'A map was prepared with the  assistance and knowledge of other Chiefs  and elders' --  Um-hum.  -- 'who know where the boundaries are'.  Um-hum.  Is that correct?  It is correct.  And that is because you do not know where  the boundaries are?  Let's see, no, I don't, to be truthful.  What is your dad's name?  Dave Green.  And what is his clan?  He is Lax Gibuu.  And his House?  I can't remember his House.  Is Art Wilson a Gitksan person?  Yes, he is.  Do you know if he is a hereditary Chief?  Yes, he is.  Do you know what clan he belongs to?  I am not too sure;  he may be Gisk'aast or  wolf, Lax Gibuu.  And do you know what his Chief's name is?  No, I don't.  That makes sense to me.  Would you look at  the answer that you gave to question 78 (A)  of the interrogatories.  78 (A)?  Which is Exhibit '1'.  And the question is:  'What is your personal knowledge of -- and  it is on page eighteen --  Okay.  -- '(A) non-Indians, if any, who have  harvested, managed or conserved resources  within your House's territory at any time 19572  Discovery read-in  of S. Green  by Mr. Willms  1 since first European contact' -- and you  2 say -- 'white people have logged about  3 twenty square miles from Bell 1 to Taft  4 Creek.  They have done this without my  5 permission.'  Now, Mr. Green, Taft Creek is  6 quite aways north of here, is it not?  7 A   I am not really that familiar with that,  8 this area.  9 340   Q   Do you know what is intended by the  10 expression in your answer 'Bell 1'?  11 A   Bell 1, this would be Skiik'm lax ha's  12 territory.  13  14 385   Q   Let us look at the Statement of Claim, and  15 I have as my copy the January 5th version  16 which was filed on March 13th, 1987.  Have  17 you ever seen a document similar to this,  18 Mr. Green?  19 A   The Statement of Claim?  20 386   Q   Yes.  21 A  Wait a minute -- yeah, yeah, I have.  I  22 have a copy of this (indicating).  23 387   Q   Paragraph fifty-eight.  24 MR. RUSH:  What is the date of that again?  25 MR. PLANT:  March 13th.  26 MR. RUSH:  Yes, I have it.  That is fine.  27 MR. PLANT:  Unfortunately the copy that I have does  28 not have the filed stamp on it.  29 MR. RUSH:  Mine does.  3 0 MR. PLANT:  31 388   Q   Paragraph 58 reads:  'the Plaintiff  32 continues to own and exercise jurisdiction  33 over the territory to the present time.'  34 Do you see that?  35 A   Um-hum.  36 389   Q   Paragraph number 58?  37 A   Yeah, yes.  38 390   Q   And you are one of the Plaintiffs?  39 A   Yes, I am.  40 391   Q   You see paragraph 62, it says:  'The  41 Plaintiffs continue to own and exercise  42 jurisdiction over all lands within the  43 territory in accordance with Gitksan and  44 Wet'suwet'en laws.'  45 A   Yes.  46 382   Q   Can you see paragraph 63, which reads:  47 'The Plaintiffs continue to own and 19573  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  Discovery read-in  of S. Green  by Mr. Willms  exercise jurisdiction over the resources  on, under and over all lands within the  territory in accordance with Gitksan and  Wet'suwet'en laws.' Do you see that?  A   Um-hum.  416 Q   In fact, Mr. Green, there have been  restrictions on your access, have there not  been, there have been restrictions on his  your access to resources in the territory?  A   In 'restrictions' you mean that we  shouldn't hunt --  417 Q   Well, Mr. —  A   -- on certain days; is that what you mean?  418 Q   I am not sure because the word is your  word.  The word 'restrictions' or  'restricting' is in the answer.  A   Yeah, this is what it reads.  You see we  have been restricted on our hunting and  fishing rights.  419 Q   And by restricted that means to you that  you cannot hunt when you want to?  A   That's right.  42 0   Q   And you cannot fish when you want to?  A   That's right.  421 Q   Are you able to exercise jurisdiction over  fishing rights when you cannot fish when  you want to?  A   I can't very well exercise my right or  authority to do anything because of the  white man's law.  422 Q   So, in fact, you are not really exercising  your right and authority?  A   I mean, how could I do it with the white  man in the way?  423 Q   Well, is not the point that you cannot?  A   How could I?  424 Q   In fact you cannot?  A   I mean I could have if I can --  425 Q   But you cannot?  A I don't know if I can't.  426 Q Because the white man's law is in the way?  A White man are in the way, yeah.  427 Q So, you cannot exercise jurisdiction over  the fishing and the hunting resources?  A   Yeah, I can.  428 Q   How? 19574  Discovery read-in  of S. Green  by Mr. Willms  1 A   I just told you.  The white man, the white  2 man's laws are in the way;  I mean if I  3 went fishing they would throw me in jail or  4 take my net away.  If I went hunting when I  5 needed food, when my family needs food, you  6 see the white man will either take my rifle  7 or charge me or something, that's how.  8 429   Q   So, the white man —  9 A   So —  10 430   Q   Sorry, excuse me.  11 A   So, we have to starve for the winter.  12 431   Q   Yes.  13 A   You see this last winter I only put away  14 six salmon in the deep freeze eh.  Why?  I  15 mean usually I put in six cases of canned  16 fish.  I mean when I could, you know.  That  17 was a few years back.  Now, the Fisheries  18 are in the way.  They say, 'You can't fish  19 there, it's out of season.'  So, this  20 winter I had to starve a bit.  21 432   Q   The white man prevents you from fishing,  22 but the last --  23 A   They did, yeah.  24 433   Q   So, how do you exercise jurisdiction over  25 that resource when you cannot get access to  26 it because of the white man's laws?  27 A   How can I exercise my jurisdiction when the  2 8 white man is in the way.  29 434   Q   Well you tell me; how can you?  30 A   I don't know that answer yet.  31 435   Q   Could you turn back to interrogatory number  32 nineteen, please.  33 MR. RUSH:  Question nineteen.  34 MR. PLANT:  I am sorry question nineteen in the  35 interrogatory.  36 436   Q   And I am referring to page four of Exhibit  37 '1'.  The question is:  'Were you  38 authorized by the members of the House of  39 Gyetm Galdoo to bring this action?'  And  40 the answer is:  'Yes.' Do you see that?  41 A   Yes.  42 437   Q   Question twenty:  'If so, when and by what  43 means were you authorized to bring this  44 action?' Answer:  'I discussed this with  45 the members of my House, including the  46 other Chiefs of my House at various events.  47 The consensus was for me to authorize the 19575  Discovery read-in  of S. Green  by Mr. Willms  1 commencement of an action in Court against  2 Her Majesty the Queen in the Right of the  3 Province of British Columbia.  I took this  4 to be my authorization in accordance with  5 Gitksan laws.  I exercised my authority  6 which has been recognized by the members of  7 my House through Liligut.'  Do you see  8 that, Mr. Green?  9 A   Yes.  10 438   Q   What is the Liligut?  11 A   Gee, I don't know what.  12 MR. RUSH:  What does that word mean?  A  438  Q  A  MR.  RUSH:  MR.  PLANT  439  Q  A  13  14 439   Q   That is the last word?  15 A   Gee, I don't know what Liligut is,  16  17 454   Q   Eighty (A) on page nineteen, actually the  18 particular sentence I want to refer to is  19 on page twenty.  And you are welcome to  20 look at the whole answer if you like.  The  21 third -- rather the second full paragraph  22 on page twenty that I have a question  23 about, the answer in that paragraph reads:  24 'When I have questions as a Chief there are  25 certain people that I have to consult.  We  26 should not go outside of our Wilnadahl to  27 answer certain important questions.'  Do  28 you see that on page twenty?  29 MR. RUSH:  Page twenty?  30 A   Page twenty?  31 MR. RUSH:  Just read that paragraph.  It is the third  32 paragraph.  33 A   You want me to read it?  34 MR. PLANT:  35 455   Q   Yes, I have read it out loud.  Perhaps you  36 could read it to yourself?  37 A   Oh, oh, yeah, um-hum, okay.  38 456   Q   Do you see that?  39 A   Yes.  40 457   Q   What is your 'Wilnadahl'?  41 MR. RUSH:  Here (indicating).  42 A   I don't know what the Wilnadahl is.  I  43 don't know the meaning of this word.  44  4 5 EXAMINATION BY MR. RUSH:  46 458   Q   I just have a few questions, Sylvester.  47 You have mentioned Walter Wilson or 19576  Discovery read-  'ñ†in  of S. William  by Mr. Willms  1  2  A  3  459  Q  4  5  A  6  460  Q  7  A  8  461  Q  9  10  A  11  462  Q  12  13  14  15  A  16  17  463  Q  18  19  A  20  464  Q  21  22  A  23  24  EXAMINATION  25  26  CONTINUATIO]  27  28  63  Q  29  A  30  31  64  Q  32  33  A  34  35  65  Q  36  A  37  66  Q  38  A  39  40  41  67  Q  42  A  43  68  Q  44  45  A  46  69  Q  47  A  Dj ogaslee?  (WITNESS NODS HEAD.)  And Walter Wilson is Djogaslee; is that  right?  Yes.  Now, you also mentioned Sophia Mowatt?  Yes, I did.  And you said that Sophia Mowatt is a member  of your House?  Yes.  I just want you to think about that answer  for a minute, and I wonder if you could  tell me if you can recall if Sophia is  related to Djogaslee?  No, I don't know whether she is related or  not.  What I want to know is, can you be sure  that Sophia is in your House?  I am not really sure now.  Are you sure what clan she is in; do you  know what clan she is in?  No, I am not sure on that, either."  FOR DISCOVERY OF SYLVESTER WILLIAM  r OF EXAMINATION BY MR. PLANT:  What did you do before you retired?  I have done most everything that needed to  be done.  Can you give me some examples of the types  of jobs that you have had?  One of the last jobs I had in logging, as a  faller.  Who did you work for?  Pete Aslin.  Could you spell that?  I was the last -- that was the last person  I worked for;  broke both legs, so I had to  quit.  How long ago was that?  1969.  Can you tell me again the name of the  person that you worked for?  Pete Aslin.  Pete Aslin.  Is he a Wet'suwet'en person?  He is one within; half breed. 19577  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  Discovery read-in  of S. William  by Mr. Willms  70  71  Q  A  Q  A  Where did this logging take place?  Chapman Lake.  I am not familiar with that lake.  Could  you give me a general idea of its location?  Towards, on the Babine Road, the road  towards Smithers Landing.  156 Q   Mr. William, does Hag Wii Negh have a  Kungax; if you can, if you have got it then  go ahead, Mr. Holland.  A   Yes.  157 Q   And without telling it to me, do you know,  do you know it?  A   It is a song, I do not know.  158 Q   Is that all that he said?  THE WITNESS:   (NODS HEAD.)  MR. PLANT:  159 Q   Mr. William, are you able to describe for  me what is a Kungax?  THE INTERPRETER:  A   It is a ceremonial performance in a feast.  162  163  164  A  Q  A  MR.  Is there a story of where the name Hag Wii  Negh came from?  That I don't know.  Do you know territories of Hag Wii Negh?  No, I have just trapped and hunted across  here; I never venture too far.  You say you have trapped and hunted across  from here; did I catch that right,  Across from there or here?  Pardon.  I think he said there.  Across from there.  Let us see if we can get a better idea of  where he trapped and hunted.  Mr. William,  where did you trap and hunt?  Across the village.  The village of Moricetown?  Yes.  Up on the other side of Blunt Mountain?  Yes.  And down Blunt Creek?  S:  Yes.  Yes, I got that.  A   Yes.  PLANT:  MR.  GRANT  MR.  PLANT  MR.  GRANT  MR.  PLANT  165  Q  A  166  Q  A  167  Q  A  168  Q  THE  WITNE  MR.  PLANT 19578  Discovery read-in  of S. William  by Mr. Willms  1 169   Q   Now, do you know -- just to make sure that  2 I have the last answer -- rather the answer  3 to a question a moment or so ago; apart  4 from the area that you hunted, are you  5 familiar with the territories of Hag Wii  6 Negh?  7 A   I only know of across there; I never  8 ventured out too much.  9 170   Q   Do you know if there is territory that  10 belongs to Hag Wii Negh?  11 A   I only know of the territory of my  12 grandfather.  I didn't know the territory  13 of Hag Wii Negh.  14 171   Q   When you speak of your grandfather are you  15 referring to lame Arthur Michell?  16 A  Where I, where I hunted and trapped in  17 William's territory, William Caspit.  18 172   Q   Is William Caspit a Chief?  19 A   Caspit is Chief.  20 173   Q   What is his clan, or what was his clan?  21 A   Gilserhyu.  22 174   Q   And what House?  2 3 A  Many names;  I don't know.  24 175   Q   Do you know if he was in the House of Many  25 Eyes?  2 6 A   No.  27 176   Q   You do not know?  28 THE WITNESS:  No.  29 MR. GRANT:  Well — just a second I was unclear  30 whether, the way you asked the question he  31 might have said 'no, he wasn't' or, 'no, I  32 don't know.'  33 MR. PLANT:  All right.  I will try again.  34 MR. GRANT:  I think you should rephrase the question,  35 maybe.  3 6 MR. PLANT:  37 177   Q   Was William Caspit a member of the House of  38 Many Eyes?  39 A   No, it's a different House.  40 178   Q   But you do not know the name of the House?  41 A   No, I don't know the name of the House.  42 They have many Houses.  43 179   Q   I have asked you about the territories of  44 Hag Wii Negh; do you know if the House of  45 Many Eyes has other territories -- I think  46 you have told me about territories down  47 around Burns Lake, for example? 19579  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  Discovery read-in  of S. William  by Mr. Willms  180  185  186  187  MR.  MR.  MR.  MR.  MR.  MR.  MR.  MR.  18?  189  190  192  A  Q  A  A  Q  A  A  GRANT  PLANT  Looking at a map yesterday I think that is  the only part.  That is the only part?  That is the only ones that I know of.  I  don't know the other parts.  You have been a Chief for quite a long  time, quite a few years; have you not, Mr.  William?  Yes.  And would you say that you are  knowledgeable concerning the rights and the  laws of the Wet'suwet'en people?  I know the laws of the Wet'suwet'en within  the feast hall.  And what about the rights of owndership and  jurisdiction that the Wet'suwet'en people  have?  Whoever owns the territory, holds the  territory.  :  You are talking now --  :  I think, I think I know exactly what I am  talking about, Mr. Grant.  GRANT  PLANT  GRANT  Plant  PLANT  GRANT  PLANT  Just one moment.  Yes.  He said part of another answer,  Mr.  Please.  Do you want that translated.  Please, I do not want to do that by any  means.  Q   Please continue, Mr. William, I did not  mean to interrupt you.  A   He said further to his answer, he said some  people register the territories.  Q   And what does he mean by 'register', or  what do you mean by 'register', Mr.  William?  A   They have certain boundaries within the  territories and they hold papers to it.  Q   And are these the papers that are kept by  the game warden?  A   That's who they get it from.  Q   You registered the trapline long ago;  did  you not, Mr. William?  A   Yes. 19580  Discovery read-  'ñ†in  of S. William  by Mr. Willms  1  193  Q  2  A  3  194  Q  4  A  5  6  195  Q  7  A  8  196  Q  9  10  A  11  12  197  Q  13  A  14  15  205  Q  16  17  A  18  206  Q  19  20  A  21  22  23  207  Q  24  25  A  26  208  Q  27  28  A  29  30  209  Q  31  32  A  33  34  210  Q  35  36  A  37  38  211  Q  39  40  41  A  42  43  212  Q  44  A  45  213  Q  46  A  47  In fact over fifty years ago?  It could be.  Do you remember registering the trapline?  A game warden by the name of Muirhead took  care of the transaction.  And did he give you a paper?  Yes.  And the trapline is on Blunt Creek; is it  not?  It goes from Blunt Mountain -- just mention  the name between --  It is east of Blunt Mountain; is it not?  Yes.  When you were a young man, Mr. William, did  you trap on that trapline?  Yes.  Why did you register a trapline on  Gilserhyu territory?  My grandfather raised me, and it was his  territory and the game warden was the one  that registered it in my name.  And when you refer to 'your grandfather',  are you referring to lame Arthur Michell?  No, William Caspit.  Did you have William Caspit's permission to  trap on that trapline?  When he passed away, that is when the game  warden passed it on to me.  And who became Caspit after William Caspit  passed away?  Jimmy Thomas took the name and after he  passed on Stanley Morris took the name.  Did you ask Jimmy Thomas's permission to  trap on that trapline?  No.  The game warden took it upon himself  to register me there.  And from your point of view, Mr. William,  that was good enough to permit you to trap  there; is that correct?  He told me I was old enough and he gave,  registered the territory to me.  And then you began trapping there?  Yes.  And did you trap there for many years?  About fifteen years. 19581  Discovery read-in  of S. William  by Mr. Willms  1 283   Q   Where do the Nutseni come from?  2 A   They have many villages in the east; some  3 of them talk different dialects.  4 284   Q   Different from the dialect that you talk?  5 A   I don't, I ask him if they speak the same  6 language and he said no.  7 285   Q   Do they come from the Lake Babine?  8 A   The Babine's are almost the same as around  9 here.  10  11 294   Q   Is Uu an we'teen the name that you give to  12 the people from Babine Lake?  13 A   Yes.  14 295   Q   Do you understand Babine Lake people when  15 they speak?  16 A   Yes.  17 296   Q   Is their language quite close to yours?  18 A   Yes.  19  20 350   Q   Mr. William, your son Warner is one of the  21 band counsellors in the Moricetown band; is  22 he not?  23 A   Yes.  24  25 359   Q   And you live on an Indian reserve now; do  26 you, Mr. William?  27 A   Yes.  28  2 9 EXAMINATION BY MR. GRANT:  30 362   Q   Mr. William, I just wish to ask you a few  31 questions on re-examination.  Is Hag Wii  32 Negh a Wet'suwet'en word?  33 A   Yes.  34 363   Q   You were asked about Gitdumskanees, is it  35 in the House of Hag Wii Negh in the  36 Ginehklaiyax House; is Hag Wii Negh higher  37 or lower than Gitdumskanees?  38 MR. PLANT:  How does that arise out of my questions?  39 MR. GRANT:  It arises out of your questions with  40 respect to if Gitdumskanees is in the House and  41 if he is Chief in the house.  42 MR. PLANT:  I object to the question.  4 3 MR. GRANT:  44 364   Q   Go ahead.  45 A  A long time ago Gitdumskanees was the head  4 6 of a House; at the moment we are equal.  47 There is times when he is higher, higher 19582  Discovery read-in  of S. William  Submission by Mr. Willms  1 than myself and there is times I am higher  2 than him.  3 365   Q   You were asked about the Caspit area around  4 Blunt Creek when you used -- were you  5 allowed to use the Caspit area under  6 Wet'suwet'en law?  7 A   I was quite young at the time, I didn't  8 know all about it.  My grandfather passed  9 away about 1932.  10 366   Q   Under Wet'suwet'en law did you have any  11 rights to use that territory?  12 A   I had the rights.  13 367   Q   Were those rights announced at a feast or  14 any other way?  15 A   They didn't give it to me through the  16 feasts, the game warden assigned me to it.  17 MR. GRANT:  Could I look at your particulars, please.  18 368   Q   Do you know where Maxan Lake is?  19 A   I heard of it and I have never been there.  20 I have never seen the place.  21 369   Q   What clan has the authority in the Maxan  22 Lake territory?  23 A   Laksilyu.  24 370   Q   And.  25 371   Q   Which House, or which head Chief has  26 authority over that territory?  27 A   I don't know that."  28  29 My lord, as the penultimate point -- well, not the  30 penultimate, but sometime ago my friends advised that  31 they would be seeking leave to file extracts from the  32 1927 Special Joint Committee as part of their case.  33 We've been waiting for a list from them of the  34 extracts that they want to tender.  As we are now  35 getting into the part of the defence which refers to  36 historical documents through Dr. Farley, Dr.  37 Greenwood, Mr. Williams, we would like at the soonest  38 possible time a notice from our friends if they still  39 intend to mark extracts or seek leave to mark extracts  40 from the 1927 Special Joint Committee, and if they do  41 intend to do that, then we would request a list prior  42 to the break, which we sit next week, so that would be  43 by Friday of next week.  This is a matter that they've  44 been able to consider for some months now and surely  45 they must know by now which extracts they want to read  46 in.  So if they still intend to seek leave to mark  47 extracts from the Special Joint Committee, 1927, we 19583  Submission by Mr. Adams  Submission by Mr. Willms  1 would like a list of the extracts by the end of next  2 week.  3 MR. ADAMS:   My lord, I think there's some none meeting of minds  4 here.  It's my understanding that the entire report  5 and evidence are already in evidence.  Certainly it  6 was referred to extensively in the course of Dr.  7 Galois' evidence, but I believe at the behest of the  8 provincial defendant in connection with some earlier  9 witness the entire report was put in as an exhibit and  10 I can't quickly tell you what its number is.  The  11 proposal was not that extracts be read, but that  12 documents connected with the Special Joint Committee  13 report including but not limited to documents relevant  14 to the B.C. Special Vote would be tendered.  Those  15 would be, we conceive, admissible on the basis of your  16 lordship's ancient documents ruling.  And as I  17 explained in court at the end of the day yesterday,  18 the difficulty for the plaintiffs is simply that we  19 have researchers pulling these documents together and  2 0 haven't received them yet.  21 As to the timing of disclosing those documents, I  22 can assure my friend that so far as I know they will  23 have nothing to do with the Royal Proclamation and  24 therefore won't relate to the evidence of Drs. Farley  25 and Greenwood.  We are prepared to undertake to  26 provide those documents in advance of Mr. Williams  27 taking the stand because they may be relevant to his  2 8 evidence.  29 MR. WILLMS:  Well, in advance of Mr. Williams can mean anything  30 up to the day before Mr. Williams takes the stand and  31 I think my friends should -- we've organized a  32 schedule.  They know when we intend to call Mr.  33 Williams.  I think two weeks prior to calling him  34 would -- should be reasonable for my friends to meet I  35 would hope.  36 THE COURT:  Can I ask hopefully if you have just three witnesses  37 to call?  Are you thinking about Mr. Greenwood on the  38 2nd of October and Dr. Farley on the 10th and Mr.  39 Williams on the 16th, something like that?  40 MR. WILLMS:   And there is also a Dr. Robinson.  41 THE COURT:  All right.  When?  42 MR. WILLMS:  I don't have the schedule here, my lord.  43 THE COURT:  All right.  44 MR. WILLMS:  He was to follow Mr. Williams.  45 THE COURT:  To follow Mr. Williams?  46 MR. WILLMS:  Yes.  47 THE COURT:  So you're looking at Mr. Williams for either the 19584  Proceedings  1 week of the 10th or the 16th of October, that's --  2 MR. WILLMS:  Yes, to follow Dr. Greenwood.  3 THE COURT:  He'll be the first witness off the break.  We're off  4 the week-end of September 25th.  We come back the 2nd  5 of October.  6 MR. WILLMS:  And that will be Dr. Greenwood.  7 THE COURT:  Will he be a week?  8 MR. WILLMS:  He could well be a week, my lord.  9 THE COURT:  Well, I think maybe with that schedule that I think  10 your friends should let you know by the opening of the  11 next round of weeks of evidence which is on the 2nd of  12 October and that would be two weeks approximately  13 before Mr. -- at least a week, and maybe two weeks  14 before Mr. Williams is called.  15 MR. WILLMS:  Yes, if it was somewhere in that range then at  16 least if there were documents in there that might  17 relate to Mr. William's evidence he would --  18 MR. ADAMS:  Well, the 2nd of October would be fine.  19 THE COURT:  Yes.  All right.  Thank you.  20 MR. WILLMS:  Now, my lord, the other two items which we intended  21 to deal with today, the next item would be the  22 alienation maps.  My colleague Mr. Plant is going to  23 deal with those maps and I expect him here shortly.  24 We'd originally anticipated that it would take some  25 time to argue Marvin George, and it would be  26 appropriate if we could adjourn now and  27 then advise your lordship --  2 8 THE COURT:  Yes.  29 MR. WILLMS:  — when Mr. Plant is available and then following  30 that what we propose is that -- to carry on with the  31 evidence that was being tendered by Mr. Goldie  32 yesterday.  33 THE COURT:  Yes.  All right.  May I just raise with counsel that  34 at some early date, I think the sooner the better  35 because these things have a way of sliding, I would  36 like to have a discussion with counsel about argument.  37 It's a long way away, but if there are any  38 misunderstandings I'd like to straighten them out.  39 I'd like to know whether the schedule counsel  40 suggested once before that they needed two months from  41 the close of evidence to get ready for argument still  42 holds, and I'd like some clear understanding of what  43 sort of written submissions counsel will be tendering.  44 And I think that Mr. Rush said at one time that he  45 wanted to put in a full written argument and not an  46 outline.  I'm not sure if I recall what other counsel  47 said.  I want to know whether counsel are in a 19585  Proceedings  1 position to make an estimate of how long they think  2 their oral submissions should take and whether there  3 should be some limited period for that purpose or  4 whether it's to be at large and that sort of thing.  5 And I think an earlier discussion rather than a later  6 one would be of assistance to us all and it may be  7 that -- I assume it should be scheduled for a time  8 when Mr. Goldie and Mr. Macaulay and Mr. Rush are all  9 here, but not necessarily.  It's of no consequence to  10 me who it is, but I would be happy to wait until that  11 happy confluence of stellar persons is here. But I  12 want to have that kind of discussion with counsel at  13 some time, but it doesn't have to be today or this  14 week, but soon.  All right.  Thank you.  15 THE REGISTRAR:  Order in court.  Court stands adjourned for a  16 short recess.  17  18 (PROCEEDINGS ADJOURNED FOR MORNING RECESS)  19  20 I hereby certify the foregoing to be  21 a true and accurate transcript of the  22 proceedings herein transcribed to the  23 best of my skill and ability.  24  25  26 Tanita S. French  27 Official Reporter  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 19586  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  (PROCEEDINGS RECONVENED PURSUANT TO THE MORNING BREAK)  THE REGISTRAR:  Order in court.  THE COURT:  Mr. Plant.  MR. PLANT:  My lord, on Monday and Tuesday of this week the  alienations maps and documents were tendered as  exhibits proper all conditions for their admissibility  having been satisfied.  The plaintiffs sought leave to  delay marking those exhibits, and your lordship  granted such leave, and I now re-tender them.  I won't  recite the document numbers now, but I have arranged  to have an updated index of the binder of custodial  affidavits prepared and inserted in the binders.  There is the usual error with respect to the  identification of Exhibit 49A, which should only be  49, but I'm going to leave the details.  THE COURT:  That's in the evidence of Mr. Harding?  MR. PLANT:  Yes, that was the map of historic sites.  THE COURT:  Yes.  MR. PLANT:  And the Collins Overland Telegraph Trail.  THE COURT:  And that is Exhibit 49, but you've got it marked  49A.  MR. PLANT:  It appears sometimes as 49A, but it should be 49.  THE COURT: Well now, does that include all those numbers that  went with Mr. Harding, and with Mr. Bedford, and Mr.  Hall, and Mr. McCrimmon, etcetera?  MR. PLANT:  It includes all the numbers that went with all of  the witnesses who appeared before your lordship and  the affidavits that I also marked, and those numbers,  for reference, appear on pages 1, 2, and 3 of the  index to the binder.  THE COURT:  All right.  MR. PLANT:  I'm happy to go through them again if my application  succeeds, but I don't think I'll do so at the moment.  THE COURT:  All right.  MR. PLANT:  My lord, the issue at this point, of course, is  admissibility, not weight.  I'm going to review  briefly the circumstances which in my view led to my  earlier statement that what I called the conditions  for admissibility of this material had been satisfied.  By the middle of April of 1987 the bulk of the  material now sought to be admitted into evidence was  delivered to the plaintiffs' solicitors.  At that time  we sent them a 30-page memorandum explaining the  purpose of the project and how the material fit  together.  For present purposes --  THE COURT:  I'm sure they were grateful to receive that. 19587  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  MR. PLANT  THE COURT  MR. PLANT  Excuse me, my lord?  I'm sure they were grateful to receive that.  Yes.  I don't recall receiving their thanks.  But at  any rate, they asked for the memorandum, and, in fact,  the very day they asked for it it was prepared and  sent to them.  For present purposes though the  importance of that memorandum and the related  correspondence, all of which is exhibited in an  affidavit of Mr. Prelypchan, which is in the court  file, the affidavit is dated the 6th of May, 1987, for  present purposes what's important lies in the last  paragraph of my letter to Mr. Rush of April 13th,  1987, which I'm going to read, and I quote from it.  "We invite your consideration of the material  being delivered to you today, and we await your  suggestion as to a convenient date for a  meeting to review it.  We propose that all  parties agree to the admission of the material  comprising the Province's alienations project  as proof of the contents thereof for all  purposes at trial."  I make two points here, my lord.  There was a  meeting arranged.  The plaintiffs' counsel were unable  to attend.  The invitation was re-extended, and the  plaintiffs never took the time or trouble to respond.  The point of a meeting, of course, would be to discuss  all this material and to figure out what concerns  there were, to ask and answer any questions that there  might be, and to clarify any ambiguities.  And I might  say that although the plaintiffs never responded to  the request -- to the invitation to meet in the  succeeding two and some years, ten days or so -- two  weeks ago my friend Mr. Adams delivered a letter,  which is the only request I can recall for any  information about that -- the project, and that letter  was answered.  The information was given.  The plaintiffs -- the other -- the second point  arising from that letter is that from the outset, from  the Province's point of view, the most expeditious way  of dealing with all of this would be -- was by  discussion out of court that would lead to admission,  and I should say that such an admission was made by  the Attorney-General of Canada -- on behalf of the  Attorney-General of Canada.  Now, as your lordship will recall, at the opening 195?  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  of the case we applied for an order granting leave to  adduce the material as evidence in its present form,  and that application was granted by your lordship on  June the 12th, 1987, in terms which I am going to  refer to, and I've asked madam registrar to provide  you with a copy of Volume 18 of the transcript, and  the ruling is a paragraph only.  It begins at the  bottom of page 1214, line 36.  Does your lordship have  that?  THE COURT:  MR. PLANT:  THE COURT  MR. PLANT  Yes.  "I am satisfied that for the limited purpose  mentioned by Mr. Goldie, that is the fact of an  active alienation whether carried out or not,  the documents included in the alienation map  project and the maps themselves should, indeed  must be admitted, if at all, into evidence  without each document and map being proved  conventionally.  Such an endeavour in a case  such as this would not be a sensible or useful  endeavour.  These matters, documents and maps  should, in my view, be proven by affidavit  pursuant to Rule 40(41) and Rule 40(42).  But I  am impressed by the force of Mr. Rush's  objection to the verification process employed  up to this point for these documents and maps,  and I think the plaintiffs are entitled to have  affidavits from the various senior custodians  referred to in the material I have.  And the  plaintiffs are entitled, if they wish, to  cross-examine those deponents.  I see no  particular reason why that must be done in  Court at trial time.  I think that cross-  examination can be conducted outside the strict  confines of the trial.  I would be prepared to  hear further submissions from counsel on the  question after such cross-examinations, if any,  during verification."  That could be during vacation.  I think so.  That's the end of your lordship's ruling.  In the  intervening two years a number of affidavits were  filed.  Five were filed in 1987 and the balance in  1989.  The cross-examinations on those affidavits have  now been completed.  Last week one map and one book,  the trapline map and the trapline book, were marked 19589  Submission by Mr. Plant  Submission by Mr. Adams  1 without objection.  2 The plaintiffs have had the opportunity to test  3 the essential premise of the project, which is that  4 the information depicted on the maps comes from  5 government records kept in the ordinary course of  6 business.  They've exercised that option in some cases  7 by cross-examining witnesses and in other cases by  8 waiving their right of cross-examination.  In my  9 submission, the pre-condition of admissibility was the  10 filing of the affidavits of the various senior  11 custodians; and secondly, exposing those individuals  12 to cross-examination.  That's all that we have to do.  13 That's what your lordship required us to do, and we've  14 done that.  Now, such matters now as the accuracy of  15 the maps and the credibility of the witnesses on  16 cross-examination and the reliability of the source  17 documents, all of those, my lord, go to weight rather  18 than admissibility.  So for all of those reasons I now  19 re-tender the material, and I look forward to hearing  20 what my friend's objection is, if any.  21 THE COURT:  Ms. Koenigsberg, do you have anything to submit?  22 MS. KOENIGSBERG:  No, I haven't.  2 3    THE COURT:  Thank you.  Mr. Adams.  24 MR. ADAMS:  Thank you, my lord.  My lord, I want to start by  25 responding to two points that my friend just made.  26 The first was that the most expeditious manner of  27 dealing with this proof would have been out of court  28 discussion and agreement, and that may well be so.  29 That comment might also be applied with some justice  30 to the great areas of the plaintiffs' case, and, of  31 course, it has been tested extensively in court and  32 out instead.  33 MR. PLANT:  Where no request for such discussions was ever made.  34 MR. ADAMS:  And the second point that I want to respond to was  35 his observations about your ruling in connection with  36 the manner of proving the alienations project, and  37 it's quite true that your lordship ordered that it was  38 open to the provincial defendant to prove this by  39 affidavit of custodians.  What your lordship did not  40 say and in my submission could not appropriately have  41 said was that it wouldn't matter who swore the  42 affidavits or what was in them; as long as an  43 affidavit was produced, that would be sufficient  44 proof.  45 Now, I want to go on to answer somewhat belatedly  46 and briefly a question your lordship raised on Monday  47 of this week in the course of Mr. Harding's cross- 19590  Submission by Mr. Adams  1 examination, and that was at Volume 263, page 19426.  2 And during the course of that cross-examination there  3 was some discussion, and with reference to the  4 alienations project your lordship said at line 38:  5  6 "... I am sure that when those arguments are  7 made,"  8  9 and I understood your lordship to be referring to  10 arguments as to the existence of the tenures and the  11 existence on the lines on the map,  12  13 "you will be answering them not on the basis  14 that there is a document that is missing a  15 notation or there is a document that  16 mis-describes a stream or river or internal  17 boundary or some thing, but on broad principle.  18 Therefore, I am not sure why this material  19 isn't in some way being admitted and put away  2 0 until argument."  21  22 Now, at that time I confined my response to saying  23 that the significance of the alienations would be a  24 matter for argument, and I was reluctant in the midst  25 of the witnesses and with the witnesses coming on  26 sitting in the courtroom to go into more detail about  27 the purposes of the questions that were being asked on  28 cross-examination, but I take the opportunity now to  29 respond by saying that at some point at the end of the  30 day the plaintiffs will argue that the administrative  31 acts, including, one presumes, the alienations relied  32 upon by the provincial defendant, consist, we say, on  33 the evidence you've heard, largely of drawing lines on  34 maps and creating tenures which have had, we will  35 argue, a minimal impact on the territories claimed in  36 this case and that they cannot, therefore, support  37 arguments of acquiescence and extinguishment.  We  38 say -- we will say they can't support arguments of  39 acquiescence because you can't acquiesce in something  40 you didn't know about, and we will say as a matter of  41 law that they can't support arguments of  42 extinguishment on similar related principles.  43 The only other observation I make in that  44 connection, my lord, is that to the extent that the  45 alienations demonstrated, and which have survived the  46 test of cross-examination, show an interference with  47 the plaintiffs' use and enjoyment of the territories 19591  Submission by Mr. Adams  1 claimed in the action, then that, the plaintiffs will  2 say, is evidence of damage.  So that we will to some  3 extent, as I acknowledged on Monday or Tuesday, be  4 relying on this material ourselves for that purpose.  5 Now, the plaintiffs do say that there are  6 considerable deficiencies in the proof of the  7 alienations project.  Accepting that it was -- that  8 the material was to be proved by affidavit, the  9 plaintiffs say that in the end the examinations and  10 cross-examinations will show great holes in the  11 connection drawn at least between the supporting  12 materials and what ended up appearing on the maps.  13 And as a general comment, by and large, in my  14 submission, it was demonstrated that the custodians  15 knew little or nothing about any connection and hadn't  16 compared the documents with the maps so as to be able  17 to verify that one reflected the other.  18 And I want to refer only to one example, and that  19 also is out of Mr. Harding's cross-examination, and  20 that is at Volume 263, page 19420.  And I should say  21 that this is, in my submission, either the high  22 watermark or the low watermark of the deficiencies in  23 the proof depending on one's point of view.  And I was  24 asking Mr. Harding there, beginning at line 21, about  25 Overlay 7, which you'll recall was the historical  26 trails, and there was a number of orange lines on the  27 map that purported to be the Collins Overland  28 Telegraph route, the Yukon Telegraph route, and some  29 Indian grease trails.  And beginning at line 21 he was  30 asked:  31  32 "Q     And do I take that when you look at an  33 example of the overlays, this is quadrant  34 six, and for example it has an orange line  35 on it that is identified on the map as  36 Collins Overland Telegraph Trail, that that  37 reflects information on file in the  38 ministry?  39 A     Yes.  40 Q     And are you able to say what information on  41 file in the ministry supports that  42 particular designation, that depiction of  43 the Collins Overland Telegraph Trail?  44 A     I'm not sure what you mean there.  45 Q     Well, what I have on this quadrant six is an  46 orange line on the map.  Can you see that  47 from where you're sitting?  Right here. 19592  Submission by Mr. Adams  1 A Yes.  2 Q And it's identified in the key as overlay  3 seven historic trails.  My question is what  4 information on file in the ministry enabled  5 someone to plot that line on that map?  6 A I'm not sure about that.  It may have been  7 on the base map originally.  I'm not sure if  8 that is covered by tenure under the Forest  9 Act or whether it's covered by tenure under  10 the Land Act.  It's probably under the Land  11 Act, in which the case the information was  12 either already on the base map or it was  13 given to us.  14 Q And you don't know which of those, if  15 either?  16 A No.  It would be one or the other.  17 Q In any case, it's so, isn't it, that your  18 affidavit does not refer to any supporting  19 documentation for the trails and historic  20 sites that appear on overlay seven?  21 A Yes.  22 Q And I take it further then that you have no  23 way of knowing whether that's accurately  24 depicted or not?  25 A Whether the trail is accurately depicted?  26 Q Yes.  27 A Oh, I think -- do I have a way of knowing  28 right this very minute?  29 Q Yes.  30 A No.  31 Q And you didn't have a way of knowing when  32 you swore your affidavit?  33 A No.  I didn't double-check with the -- with  34 the map to see if it was in fact along the  35 same lines.  36 Q And you didn't know that either when you  37 signed the certificates that are attached as  38 exhibits to your affidavit?  39 A I guess that's right."  40  41  42 And, in my submission, on any sort of conventional  43 legal proof that -- the consequence of that sort of  44 cross-examination should be that Overlay 7 has no  45 standing at all.  46 Now, that said --  47 THE COURT:  But there's much else, much other material on 19593  Submission by Mr. Adams  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. ADAMS  MR. PLANT  MR.  MR.  ADAMS  PLANT  MR.  THE  MR.  THE  ADAMS  COURT  PLANT  COURT  Overlay 7 besides the Collins Overland Telegraph  Trail.  Well, Overlay 7 was designated as historic sites,  and there were the three trails that I've mentioned  already.  The point, my lord, is that there was no  documentation at all attached to that witness'  affidavit from which he could swear to anything in  connection with how those lines got on that map.  But with that said, the plaintiffs' view is that  in spite of the deficiencies which we say run  throughout the affidavits no purpose would be served  by continuing to oppose their admission.  In the  plaintiffs' submission, the maps and documents have  not been proved properly, but there's no warrant for  seeking to require the attendance of still more  witnesses because we presume eventually by someone  these could be proved, and we are prepared to concede  that on the following considerations, that is, the  plaintiffs withdraw their objections to the  admissibility of the maps and documents tendered by my  friend subject, of course, to whatever infirmities are  revealed in the cross-examinations, and that will be a  matter for later argument.  Furthermore, there were  requests in the course of at least one of the  cross-examinations for further information, and that  request I will refer to in a moment.  And then in the  same connection there was a request or at least an  arrangement in the course of Mr. Harding's cross-  examination that certain Prince Rupert Forest District  reports from the 30s and 40s could be delivered to my  friend, would be checked through with Mr. Harding, and  there would be, if appropriate, an admission that they  were genuine documents.  That's not the admission I made, but I'll deal with  that later.  Well, that reflects my understanding of what --  I take issue with my friend to this extent.  He said  that they'll be checked through with Mr. Harding, and  your lordship heard Mr. Harding give evidence to the  effect that he can't personally say whether these are  what my friend says they are, and that's not the basis  under which they would be admissible, if they were  admissible.  Well —  It's the checking to which your friend refers --  That's all, my lord.  -- with which you take issue? 19594  Submission by Mr. Adams  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. ADAMS  THE COURT  MR. ADAMS  THE COURT  MR. ADAMS  :  I only say Mr. Harding because there was a  discussion, your lordship will recall, of the prospect  of recalling him if anything arose out of certain  other documents.  I -- it doesn't matter to the  plaintiffs who checks the information.  :  All right.  :  Now, as to the outstanding request for information,  that was made in the course of Mr. Duffy's cross-  examination.  And that I believe, when we get to  marking it shortly, will end up being Exhibit 1134A,  if I'm not mistaken.  :  Yes, that's correct.  Yes.  :  And the request was made by Mr. Rush of Mr. Duffy  beginning on page 30 of that cross-examination, and it  was with respect to the Kitwancool territorial  reserve.  In the in-court examinations your lordship  also heard questions directed at that information.  Now, there was some discussion about the relevance  of that information.  Mr. Plant says at page 32, line  7 of the cross-examination:  "At the moment I'm not certain of the relevance  of this..."  And he goes on:  "If you could give me some idea of the  relevance, then I will be able to take that  with me when I go back and speak with the other  counsel."  And Mr. Rush then made some comments about his view of  the relevance, which I'll come to shortly.  And then  there was a conclusion that what would be looked for  as to its existence at least in the files of the  surveyor general was the maps or files related to the  Kitwancool territorial reserve.  Now, more recently there has been correspondence  between Mr. Rush and Mr. Plant with respect to that  request for information, and that culminated in a  letter of September 12th this year from Mr. Plant to  Mr. Rush in which he goes through a number of  requests, fills some of them, says that some things  are not available and finally says this:  "Department of lands files pertaining to the  establishment and management of the Kitwancool 19595  Submission by Mr. Adams  1 territorial reserve.  2 We have located a file that matches your  3 description.  We decline to produce it on  4 grounds of relevance."  5  6 The plaintiffs before you today are renewing that  7 request and are prepared to argue what the relevance  8 of that file is.  And I would refer you first to Mr.  9 Rush's statement of his view of the relevance at page  10 32 of what will be Exhibit 1134A.  And he says  11 beginning at line 13:  12  13 "Well, I consider that this territorial reserve  14 may well show a boundary that has been the  15 subject matter of previous examination.  16 Examination has touched on the Kitwancool land  17 claim itself, and our position is that the  18 existence of such a reserve would tend to show  19 the concern and recognition by the provincial  2 0 government of extant land claims at that time  21 in a region that is contiguous with the land  22 claim of the Gitksan, and I think the relevance  23 is evident as well from the extract I've placed  24 in front of Mr. Duffy, which states in part in  25 the second sentence, and I quote:  26  27 'We understand that the establishment of  28 the reserve eliminates any alienations  29 within the reserve.'"  30  31 Now, the subject of Kitwancool and the people of  32 Kitwancool and the Kitwancool chiefs and territories  33 has come up throughout the trial, and I simply want to  34 refer your lordship to one example of that.  That was  35 in the course of the cross-examination by Mr. Goldie  36 of Solomon Marsden, and I'm sorry, I don't have the  37 volume number in this extract, but the page number is  38 5986.  And at line 26 Mr. Goldie asked Mr. Marsden the  39 following question:  40  41 "MR. GOLDIE:  Mr. Marsden, there came into our  42 hands a few days ago, a sheet headed 'Land  43 Claims Legality,' published by the Interior  44 News, Smithers, December 3rd, 1986, and it  45 consists of three pages with a stamp at the  46 bottom, Peter Williams, Hon. L.L.D., and  47 there is a map attached to it, and then 19596  Submission by Mr. Adams  1 there is another typewritten page with a  2 letter to the Editor of Interior News,  3 September 30th, 1987, and there is a stamp,  4 Peter Williams...and it is said to be  5 presented at a meeting to certain --  6 presented 'in support" --  7  8 sorry, here he's quoting,  9  10 "presented 'in support of Kitwancool high  11 chiefs orders to stop all logging, April  12 blank 1988. '"  13  14 And then Mr. Goldie's question continues:  15  16 "Now, I'll put that in front of you and hand  17 that to His Lordship, please.  18 Mr. Marsden, I refer you to"  19  2 0 And Mr. Grant says:  21  22 "Do you have one for the interpreter?"  23  24 And Mr. Goldie goes on:  25  26 "Q     Yes.  I refer you to the last page.  Is that  27 the signature of Mr. Peter Williams, the  28 president of the Kitwancool?  29 THE WITNESS:  Yeah, that's right, that's his  30 signature.  31 Q     And did the high chiefs of Kitwancool ask  32 Mr. Williams to inform Westar Timber  33 Company, Bell Pole Company, Hobenshield  34 Bros., Orenda," O-r-e-n-d-a, "Forest  35 Products, to stop all logging in Kitwancool  36 territories pending the Gitksan-Wet'suwet'en  37 case?"  38  39 And then there's further discussion following on,  40 but the point I wish to make, my lord, is that clearly  41 from that extract the Province regarded the Kitwancool  42 claim as relevant to issues arising in this action,  43 and the plaintiffs say that the existence of a  44 territorial reserve connected to that land claim is a  45 relevant matter to be explored through a disclosure of  46 this file, which my friends admit exists, they simply  47 say it's irrelevant.  So what I'm seeking from your 19597  Submission by Mr. Adams  1 lordship is an order that that file as located and  2 described be disclosed to the plaintiffs.  3 Now, the only thing that remains for me to do is  4 to ask to have the transcripts that have not yet been  5 marked be marked and to have the only exhibits that  6 were put to the out-of-court witnesses and which still  7 have the status of exhibits for ID on the cross-  8 examinations be marked.  9 THE COURT:  Is there one for each witness or is there just a few  10 of them?  11 MR. ADAMS:  There is a separate transcript for each witness, and  12 the numbers, as I understand it, will track the  13 numbers that Mr. Plant has established for the  14 affidavits.  15 THE COURT:  Yes.  16 MR. ADAMS:  And on that theory, by my notes the transcript of  17 Dr. Bandy dated August 24, '89, will be Exhibit 1114A.  18 I understand the original of these were given to madam  19 registrar this morning.  2 0 THE COURT:  Yes, that number was reserved at the time.  21 MR. ADAMS:  Yes.  The cross-examination of Donald Duffy dated  22 August 23rd, 1989, would be 1134A.  Now, some of these  23 cover more than one affidavit, and what I'm suggesting  24 is that the number be assigned for the first affidavit  25 on my friend's list.  26 THE COURT:  Yes.  I think that's common ground, is it not?  Yes,  27 thank you.  28 MR. ADAMS:  And then finally the transcript of the cross-  29 examination of John Clancey dated August 24, 1989  30 would be 1137A.  31  32 (EXHIBIT 1134A - CROSS-EXAM ON AFF. OF D. DUFFY DATED AUG. 23,  33 1989)  34 (EXHIBIT 1137A - CROSS-EXAM ON AFF. OF J. CLANCY DATED AUG. 24,  35 1989)  36  37 THE COURT:  Yes.  38 MR. ADAMS:  And it's in Mr. Clancey's cross-examination that  39 there are two outstanding -- well, depending on how  40 you read things, either one or two outstanding  41 exhibits for identification.  At page 23 of Exhibit  42 1137A Mr. Guenther cross-examining Mr. Clancey put to  43 him a couple of newspaper clippings from the Vancouver  44 Sun, one dated February 12th, 1988, and a second on  45 page 24 -- so far as the transcript the other is  46 undated, and the copy that I have doesn't have a date  47 either.  Now, the transcript says that two clippings 1959?  Submission by Mr. Adams  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  were marked for ID.  The copies that I have from the  examination has two pages marked together as a single  exhibit.  Now, when these were tendered and a question was  asked on the basis of these proposed exhibits, Mr.  Mackenzie objected on the basis that the question  didn't have to do with the custodial affidavit or to  credibility, and there was some discussion about that.  And if it's not already conceded, my submission is  that it's clear that those cross-examinations were not  confined to those matters, and, therefore, the  question, in my submission, was proper, and what I'm  seeking is simply to have the clippings that were put  to the witness and about which he answered questions  be marked as exhibits proper.  And that would make  them, if that's acceptable, 1137A-1 and -2.  And that  completes my submissions on the alienations material,  my lord.  :  All right.  Thank you.  Well then, Mr. Plant, the  exhibits of cross-examinations and the other documents  that have been detailed both in evidence and in your  list may be marked with the exhibit numbers that they  formerly carried for identification in some cases and  fresh documents in other cases accordingly, there  being now no outstanding objection to the documents  being filed as exhibits.  (EXHIBIT  (EXHIBIT  (EXHIBIT  (EXHIBIT  (EXHIBIT  (EXHIBIT  (EXHIBIT  (EXHIBIT  (EXHIBIT  (EXHIBIT  (EXHIBIT  (EXHIBIT  (EXHIBIT  (EXHIBIT  1137A-1 - NEWSPAPER ARTICLE "MINE'S S  THREAT TO THE RIVER")  1137A-2 - NEWSPAPER ARTICLE "BREAKING  PRODUCTION OF TOXIC COCKTAIL")  4 8A - MAP  48B - MAP  48C - MAP  48D - MAP  OVERLAY  VOL. I -  VOL. II  VOL. Ill  1 OF 6 SERIES  SOURCE DOC. -  - SOURCE DOC.  - SOURCE DOC.  LICENCES)  49 - MAP 19 - OVERLAY 7 OF 6 SERIES -  TELEGRAPH TRAIL)  50A - MAP 20 - OVERLAY 2 OF 6 SERIES  50B - MAP 20 - SUPPORTING DOC.)  51A - MAP 21 - OVERLAY 3 OF 6 SERIES  YIELDS OF FORESTS)  51B - MAP 21  52A - MAP 22  LICENCES)  52B - MAP 22  53A - MAP 23  SUPPORTING DOC.)  OVERLAY 4 OF 6 SERIES  SUPPORTING DOC.)  OVERLAY 5 OF 6 SERIES  EEPAGE POSES  UP ROCK SETS OFF  - TIMBER AREAS)  TIMBER SUPPLY)  - TIMBER SALES)  - PERMITS &  HISTORIC SITES &  - PROV. FORESTS)  - PUBLIC SUSTAINED  - TREE FARM  - FOREST CHART 19599  Proceedings  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  EXHIBIT  EXHIBIT  EXHIBIT  EXHIBIT  EXHIBIT  EXHIBIT  EXHIBIT  EXHIBIT  EXHIBIT  EXHIBIT  EXHIBIT  EXHIBIT  EXHIBIT  EXHIBIT  EXHIBIT  EXHIBIT  EXHIBIT  EXHIBIT  EXHIBIT  EXHIBIT  EXHIBIT  EXHIBIT  EXHIBIT  EXHIBIT  EXHIBIT  EXHIBIT  EXHIBIT  EXHIBIT  EXHIBIT  EXHIBIT  EXHIBIT  EXHIBIT  EXHIBIT  EXHIBIT  EXHIBIT  EXHIBIT  EXHIBIT  EXHIBIT  EXHIBIT  EXHIBIT  EXHIBIT  EXHIBIT  AREAS  53B  4 3A  43B  4 4A  44B  4 0A  40B  41A  41B  41C  4 5A  45B  55A  55B  55C  55D  55E  SITES  55F -  54A -  54B -  24A -  24B -  38F -  38G -  36A -  36B -  36C -  39A -  39B -  39C -  4 7A-1  4 7 A-2  47B -  37A -  37B -  37C -  37C-  37D  37E  37F  4 6A  46B  23  6 -  6 -  MAP  MAP  MAP  MAP 7  MAP 7  MAP  MAP  MAP  MAP  MAP  MAP 8 -  MAP 8 -  MAP 2 6  MAP 2 6  MAP  MAP  MAP  )  MAP 35  MAP 2 4  MAP 2 4  MAP 2 -  MAP 2 -  MAP 2 5  MAP 2 5  MAP 3 -  MAP 3 -  13  13  35  - SUPPORTING DOC.)  PROV. HIGHWAYS)  SUPPORTING DOC.)  FOREST RECREATION SITES)  SUPPORTING DOC.)  FIRE PROTECTION AREAS)  SUPPORTING DOC.)  INCORPORATED MUNICIPALITIES)  SUPPORTING DOC.)  SUPPLEMENT BOOKLET)  PROV. PARKS)  SUPPORTING DOC.)  - ECOLOGICAL RESERVES)  - SUPPORTING DOC.)  - GUIDE BOUNDARIES)  - SUPPORTING DOC.)  - FOREST SERVICE ROADS - FOREST SERVICE  - SOURCE DOC.)  - OVERLAY 6 OF 6 SERIES - GRAZING PERMITS)  - SOURCE DOC.)  REGISTERED TRAPLINES)  SUPPORTING DOC.)  - WATER LICENCES)  - SUPPORTING DOC.)  AREA USE DESIGNATION - RIGHTS OF WAY)  SUPPORTING DOC.)  SUPPLEMENT BOOKLET)  MAP 12 -  MAP 12 -  MAP 12 -  - MAP 10  - MAP 10  MAP 10 -  MAPS 14 TO 16 -  MAP 14 - VOL. I  SURVEYED DISTRICT LOTS)  SUPPORTING DOC.)  SUPPLEMENT BOOKLET)  - PROV. SCHOOL DIST. - 1946)  - PROV. SCHOOL DIST. - 1984)  SUPPORTING DOC.)  MINERAL, PLACER & COAL TENTURES)  - SUPPORTING DOC.)  )  -1  MAP 14 - VOL. II - SUPPORTING DOC  - SUPPLEMENT BOOKLET)  MAP 15 - VOL. I - SUPPORTING DOC.)  MAP 15 - VOL. II - SUPPORTING DOC.)  MAP 16 - SUPPORTING DOC.)  MAP 9 - PROV. ELECTORAL DISTS.)  MAP 9 - SUPPORTING DOC.)  THE COURT:  What do you say about the Kitwancool reserve' 19600  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  MR. PLANT  THE COURT  MR. PLANT  THE COURT  MR. PLANT  I think there are three things I wish to speak to --  Yes.  -- in no particular order.  As to the purpose for  which these news clippings that my friend has referred  to most recently may be put, I would say that the  transcript will speak for itself on just what the  witness has been able to do with that material, but I  certainly don't object to their being marked as  newspaper clippings put to a witness.  :  Yes.  :  The second thing relates to the suggestion on the  part of my friend that there are outstanding matters  in relation to the examination of both Mr. Harding and  Mr. Duffy because there were requests made for the  production of documents.  In both cases Mr. Duffy --  for example, as to the Kitwancool reserve, he was  asked by Mr. Rush:  "Q     My understanding is that such a reserve was  established in 1973?  A     Yeah, I'm afraid I'm not aware of that."  So there won't be much -- in fact, there won't be  anything that Mr. Duffy will ever say about the  Kitwancool land reserve.  There will be something I  will say about it in a minute.  But the same applies  in respect of the 1944 and other date forest reports  that my friend put to Mr. Harding.  Mr. Harding had  never looked at those documents before, and there is  nothing that Mr. Harding is going to be able to say  about them.  When my friend delivers them to me and  when he tells me what he wants me to do with them, I  will then give him my position on their admissibility  and the purpose for which they might be put, if any.  Now, that leaves me with the issue of the  relevance of the Kitwancool land reserve, and on that  I suggest that your lordship has been given perhaps an  incomplete picture of how this all came before the  court.  Mr. Marsden was called as a witness for the  plaintiffs.  I have located the proceedings at trial,  Volume 92.  And when Mr. Marsden, who is a Kitwancool  chief, was tendered by my friend's colleague Mr. Grant  as a witness for the plaintiffs, Mr. Goldie rose to  say this at transcript 5871, line 4:  "My lord, I think I should put my friend on  evidence notice that any evidence he gives 19601  Submission by Mr. Plant  1 about in witness' territory opens him up to  2 complete cross-examination.  3 THE COURT:  Well, I am not sure I understand  4 that, Mr. Goldie.  Surely, once the witness is  5 sworn he is opened up to complete cross-  6 examination.  7 MR. GOLDIE:  No, I mean that he makes it  8 relevant if he questions him about his own  9 territory.  This has got a bit of history  10 behind it.  When I examined Mr. Sterritt for  11 discovery, objection was taken to my questions  12 relating to the territory of the Kitwancool.  13 And it was made very clear to me that the  14 Kitwancool are not part of this action, Mr.  15 Marsden is one of the people designated in  16 paragraph 51 of the statement of claim as not  17 being a plaintiff.  Now, if he gives any  18 evidence relating to the Kitwancool, then I --  19 and, I will be making a submission with respect  20 to the relevance of that evidence, but I felt I  21 ought to make my position quite clear in case  22 my friend was saying you can't object at some  23 later point..."  24  25 Well, we objected on the 5th of May, 1988, to the  26 relevance of Mr. Marsden's evidence, but it was the  27 plaintiffs who put this issue of Kitwancool territory  28 before the court, not us, and by referring to cross-  29 examination conducted by my colleague Mr. Goldie my  30 friend refers to a cross-examination -- a  31 cross-examination made necessary by the fact that the  32 witness had given evidence in relation to these  33 matters, which was now on the record.  34 In my submission, the file, which my friend has  35 referred to, wasn't relevant then and isn't relevant  36 now.  It's a little late in the day for my friends to  37 be practising document disclosure, but notwithstanding  38 that, the request was made during discovery.  And  39 we've looked at the file, and the existence or  40 non-existence of a map reserve in relation to some  41 territory claimed by persons who are not parties to  42 this litigation is not, in my submission, germane to  43 the issues which your lordship has to determine.  I  44 have no other submissions on that aspect of the -- my  45 friend's request, my lord.  4 6    THE COURT:  Thank you.  Mr. Adams, any reply?  47    MR. ADAMS:  Simply this, my lord, that obviously at this point 19602  Submission by Mr. Plant  1  2  3  4  5  6  7  8  9  THE  COURT  10  11  12  MR.  ADAMS  13  THE  COURT  14  MR.  ADAMS  15  16  17  18  THE  COURT  19  20  MR.  PLANT  21  22  23  24  THE  COURT  25  MR.  ADAMS  26  27  28  29  30  MR.  PLANT  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  THE  COURT  47  MR.  PLANT  the plaintiffs don't know what the contents of the  file are, but from its title it might well indicate  something as to the attitude of the provincial  defendant to issues in this litigation.  There is no  suggestion that it's privileged on that basis.  In my  submission, on that basis alone it's clearly relevant  and on that basis we persist in our request that it be  disclosed.  Do I have jurisdiction to order the document  produced so I can look at it to see if it's relevant  or is that limited to determinations of privilege?  That's a question I don't have a quick answer to.  I don't either.  If your lordship is disposed to take that on, I  wouldn't have any objection to your lordship ordering  it produced for inspection by yourself and making a  ruling on relevance first.  It's not a document that's been disclosed on the  list, I suppose.  No, my lord.  Not that I'm aware of.  The list is  pretty long, but I don't think it's on there.  And we  are talking about a file that contains more than one  document.  Yes.  I should add in connection with the listing of  documents that there are numerous documents that are  relevant only to the Kitwancool and Kitwancool  territories which are disclosed as relevant on the  provincial defendant's list.  After Mr. Marsden was called.  I mean surely that's  the point.  And, in fact, Mr. Macaulay says this on  the 5th of May, 1988.  He says if you're going to call  this witness, then I have to tell your lordship that  I've had researchers leave out Kitwancool trapline  files and all of a sudden I'm told they're relevant.  News to me.  But -- so that's what happens after May  the 5th, 1988.  The gears are changed and all of a  sudden because we've been exposed to the witness -- to  the evidence of someone who's not a plaintiff, which  evidence, I might add, on discovery we were expressly  foreclosed from obtaining, then the material becomes  relevant.  That's the answer to that point, my lord.  And I'm advised by Miss Sigurdson that Rule 26(12)  provides for the inspection of documents by the court.  I have no objection to that procedure being followed.  Well, I might.  How voluminous is the file?  I was going to say it's long enough to read on the 19603  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  THE COURT  MR.  THE  PLANT:  COURT:  MR.  THE  MR.  THE  THE  bus from Burrard and Georgia to south Richmond.  About  an hour.  I'm not sure though that I read everything  in it.  I think to be on the safe side I should look at the  file and make a determination of relevance as best I  can.  I'll be glad to do that whenever it's convenient  for counsel to produce the file.  I'll make arrangements to have that done, my lord.  I'll try and get it done on the week-end.  All  right.  Are we at a convenient place to adjourn or do  you have something else?  Before I turn to my friends to see what else is on  the agenda, I just want to be sure that madam  registrar is happy that the exhibit tendering process  is --  REGISTRAR:  Everything on this index is what is now to be an  exhibit proper --  PLANT:  Correct.  REGISTRAR:  -- is that right?  And the newspaper clippings?  PLANT:  Are to be exhibits with the numbers --  REGISTRAR:  1 and 2.  ADAMS:  Yes.  Perhaps I can just hand those up.  REGISTRAR:  Thank you.  1136A-1 and 1136A-2.  PLANT:  There is a matter which I'm told my associate Mr.  Goldie would like to speak to.  GOLDIE:  Well, I'm ready to start, my lord.  MR. PLANT  THE  MR.  THE  MR.  THE  MR.  THE  MR.  COURT  PLANT  COURT  Oh.  o'clock.  Thank  Oh, it's not a housekeeping matter.  I think we should start again at two  you.  REGISTRAR:  Order in court.  Court stands adjourned until  two o'clock.  (PROCEEDINGS ADJOURNED AT 12:25 P.M.)  I hereby certify the foregoing to be  a true and accurate transcript of the  proceedings herein to the best of my  skill and ability.  Leanna Smith  Official Reporter  United Reporting Service Ltd. 19604  Reading of Despatches  by Mr. Goldie  1 (PROCEEDINGS RECONVENED PURSUANT TO ADJOURNMENT)  2  3 THE REGISTRAR: Order in court.  4 THE COURT: Mr. Goldie, do you want to read to us some more?  5 MR. GOLDIE:  Well, my lord, I've had more responsive audiences  6 before, but in light of Mr. Adams' admission this  7 morning with respect to the alienation documents your  8 lordship will be spared a final submission, and that  9 was although they didn't start out that way they're  10 now admissible because they've become ancient  11 documents.  12 THE COURT: Yes, I think that's right.  13 MR. GOLDIE:  My lord, I overlooked one document at page 73 of  14 Part 1 of the exhibit.  It is Lytton's despatch to  15 Douglas of November 1st, 1858, and it encloses his  16 instructions to Colonel Moody of the Royal Engineers,  17 and the instructions being dated October 29th, 1858,  18 and at paragraph 7 at the bottom of the page he says,  19 and I quote:  20  21 "It will also be borne in mind that in a  22 Settlement which is surrounded by savage  23 tribes, while sound policy will dictate every  24 effort to conciliate the goodwill and  25 confidence of such uncivilized neighbours, and  26 while humanity will shrink from the application  27 of armed force against the aborigines wherever  28 it can be avoided, yet some military strength  29 and disciplined organization are essential  30 preservatives to the settlers; and indeed a  31 resort, when needed, to soldiers, well  32 commanded, will be attended with far less loss  33 of life, with actions far less sanguinary, than  34 where the white man is left to defend himself  35 against the red, without that decided  36 superiority which is conferred by military  37 skill over savage force. In such conflicts the  38 want of discipline is the want of mercy.  39 You will hasten to inform yourself of the  40 true social circumstances of the community thus  41 neighboured by Indian tribes, and containing in  42 itself adventurers of all nations, and will  43 faithfully report to me your impressions as to  44 the expediency of a greater or a different kind  45 of military force sent from this country than  46 that under your command, and the probability of  47 keeping such a force free from desertion, and 19605  Reading of Despatches  by Mr. Goldie  1 steadfast in discipline.  2 At present it is my belief, as I understand  3 it to be your own, that additional military  4 force is against Indian aggression, or for the  5 preservation of order, could be most  6 economically and effectively raised on the  7 place itself and amongst the immigrant  8 population, whether as volunteers or militia  9 under British officers, for a limited period or  10 in anticipation of any sudden danger.  But I  11 must submit the accuracy of that belief to your  12 military and Colonial experience on the spot,  13 in connexion with the advice of the Governor."  14  15  16 In connection with that last sentence, my lord,  17 "accuracy of that belief in connexion with the advice  18 of the Governor", there is a later despatch which  19 directs that any submissions to be made to the  20 colonial office should always be made through the  21 governor.  22 And with that I now turn to page 56 of Volume 2,  23 and I believe I had completed my remarks on the  24 despatch of January the 8th, 1959, which starts on  25 page 55.  Before I proceed in the more or less  26 chronological order which I have adopted in this  27 volume I wish to refer to a despatch from Lytton to  28 Douglas written at year end and it's at page 76 and  29 it's Number 4 dated December 30th, 1858, and it reads  30 as follows:  31  32  33 "With reference to my Despatches of this  34 day's date, on the present condition of British  35 Columbia, I wish to add a few observations on  36 the policy to be adopted towards the Indian  37 tribes.  38 The success that has attended your  39 transactions with these tribes induces me to  40 inquire if you think it might be feasible to  41 settle them permanently in villages; with such  42 settlement civilization at once begins. Law and  43 Religion would become naturally introduced  44 amongst the red men, and contribute to their  45 own security against the aggressions of  46 immigrants, and while by indirect taxation on  47 the additional articles they would purchase 19606  Reading of Despatches  by Mr. Goldie  1 they would contribute to the Colonial Revenue,  2 some light and simple form of direct taxation,  3 the proceeds of which would be expended  4 strictly and solely on their wants and  5 improvements, might obtain their consent."  6  7 And then he refers to the experience in South  8 Africa.  That was replied to by Douglas and the reply  9 is found at page 68 and it is Douglas' despatch of  10 March the 14th.  He begins by stating that he  11 acknowledges receipt of the despatch which I have just  12 read which contains, and I quote:  13  14 "many valuable observations on the policy to be  15 observed towards the Indian tribes of British  16 Columbia, and moreover your instructions,  17 directing me to inform you if I think it would  18 be feasible to settle those tribes permanently  19 in villages; suggesting in reference to that  20 measure, that with such settlement..."  21  22  23 And then he goes on to more or less repeat the  24 statement of the despatch from Lytton.  25 Paragraph 2.  26  27 "I have much pleasure in adding, with  28 unhesitating confidence, that I conceive the  29 proposed plan to be at once feasible, and also  30 the only plan which promises to result in the  31 moral elevation of the native Indian races, in  32 rescuing them from degradation, and protecting  33 them from oppression and rapid decay.  34 It will, at the same time, have the effect  35 of saving the Colony from the numberless evils  36 which naturally follow in the train of every  37 course of national injustice, and from having  38 the native Indian tribes arrayed in vindictive  39 warfare against the white settlements.  40 As friends and allies the native races are  41 capable of rendering the most valuable  42 assistance to the Colony, while their enmity  43 would entail on the settlers a greater amount  44 of wretchedness and physical suffering, and  45 more seriously retard the growth and material  46 development of the Colony, than any other  47 calamity to which, in the ordinary course of 19607  Reading of Despatches  by Mr. Goldie  1 events, it would be exposed."  2  3  4 Then in paragraph 4 he makes reference to an  5 earlier despatch dealing with matters on Vancouver's  6 Island, and he says:  7  8 "In my Despatch, No. 4, of the 9th of  9 February last, on the affairs of Vancouver's  10 Island, transmitting my correspondence with the  11 House of Assembly up to that date, there is a  12 message made to the House on the 5th of  13 February 1859, respecting the course I proposed  14 to adopt in the disposal and management of the  15 land reserved for the benefit of the Indian  16 population at this place, the plan proposed  17 being briefly thus:  that the Indians should be  18 established on that reserve, and the remaining  19 unoccupied land should be let out on leases at  20 an annual rent to the highest bidder, and that  21 the whole proceeds arising from such leases  22 should be applied to the exclusive benefit of  23 the Indians."  24  25 Now, that relates, my lord, from Exhibit 1056-13  26 to the controversy which arose over the Songhees  27 Indian Reserve in Victoria.  Referring to that Exhibit  28 1056-13, which was put in during the cross-examination  29 of Dr. Lane, and just to put this in its context, my  30 lord, the despatch in question is, as the governor has  31 stated, from him in his capacity as Governor of  32 Vancouver Island, and he said to Lytton:  33  34 "I have the honour of transmitting herewith  35 for your information my correspondence with the  36 House of Assembly of Vancouver's Island and the  37 public business of this colony.  The subjects  38 referred to in that correspondence are not of  39 an important nature with the exception of that  40 marked letter one dated 5th February, 1859,  41 which touches on the subject of land reserved  42 near to the town of Victoria for the benefit of  43 the native population."  44  45 And then he goes on to state that attempts were  46 being made to purchase this reserve land directly from  47 the Indians and that he had caused a notice to be 1960?  Reading of Despatches  by Mr. Goldie  1 inserted in the Victoria Gazette to the effect that  2 the land in question was the property of the Crown and  3 for that reason the Indians themselves were incapable  4 of conveying the legal title.  5 And then he also indicated the nature of the  6 proposal which he was going to adopt in respect to  7 that reserve and it is that reference which is the  8 background of paragraph 4 of his despatch to Lytton of  9 March 14th, 1859.  And returning to that despatch, I  10 refer to paragraph 7.  11  12 "The support of the Indians will thus..."  13  14 And the word "thus" is referable to the proposal that  15 he has made in Vancouver Island and of which he is  16 speaking here as an example of what he -- of what  17 could be done in response to Lytton's despatch.  And  18 he says in paragraph 7:  19  20 "The support of the Indians will thus,  21 wherever land is valuable, be a matter of easy  22 accomplishment, and in districts where the  23 white population is small, and the land  24 unproductive, the Indians may be left almost  25 wholly to their own resources, and, as a joint  26 means of earning their livelihood, to pursue  27 unmolested their favourite calling of fishermen  2 8 and hunters."  29  30 Paragraph 8.  31  32 "Anticipatory reserves of land for the  33 benefit and support of the Indian races will be  34 made for that purpose in all the districts of  35 British Columbia inhabited by native tribes.  36 Those reserves should in all cases include  37 their cultivated fields and village sites, for  38 which from habit and association they  39 invariably conceive a strong attachment, and  40 prize more, for that reason, than for the  41 extent or value of the land."  42  43 And then he goes on to state that these settlements  44 should be self-supporting.  45 And in paragraph 10 he refers to the plan followed  46 by the government of the United States in making  47 Indian settlements which in many respects he states 19609  Reading of Despatches  by Mr. Goldie  1 are objectionable.  2 And in paragraph 11 he states that by avoiding the  3 evils of the American system he will make the Indians  4 independent and the settlements self-supporting.  5 And in paragraph 12:  6  7 "I would, for example, propose that every  8 family should have a distinct portion of the  9 reserved lands assigned for their use, and to  10 be cultivated by their own labour, giving them  11 however, for the present, no power to sell or  12 otherwise alienate the land; that they should  13 be taught to regard that land as their  14 inheritance; that the desire should be  15 encouraged and fostered in their minds of  16 adding to their possessions, and devoting their  17 earnings to the purchase of property apart from  18 the reserve, which would be left entirely at  19 their own disposal and control; that they  20 should in all respects be treated as rational  21 beings, capable of acting and thinking for  22 themselves; and lastly, that they should be  23 placed under proper moral and religious  24 training, and left, under the protection of the  25 laws, to provide for their own maintenance and  26 support."  27  28 I will observe in respect of this particular  29 document that Lytton acknowledged that on page 92, his  30 despatch of May the 20th, 1859, in which he  31 acknowledges Douglas's despatch of March the 14th,  32 which I have just read:  33  34 "...on the subject of the policy to be observed  35 towards the Indian tribes, and containing your  36 opinion as to the feasibility of locating the  37 Indians in native villages, with a view to  38 their protection and civilization."  39  40  41 And Lytton goes on to state:  42  43 "I am glad to find that your sentiments  44 respecting the treatment of the native races  45 are so much in accordance with my own, and I  46 trust that your endeavours to conciliate and  47 promote the welfare of the Indians will be 19610  Reading of Despatches  by Mr. Goldie  1 followed by all persons whom circumstances may  2 bring into contact with them.  But whilst  3 making ample provision under the arrangements  4 proposed for the future sustenance and  5 improvement of the native tribes, you will, I  6 am persuaded, bear in mind the importance of  7 exercising due care in laying out and defining  8 the several reserves, so as to avoid checking  9 at a future day the progress of the white  10 colonists."  11  12 Now that is signed by Carnarvon in the absence of  13 Lytton, and I note that there is no reference in any  14 of the three despatches to which I have referred to --  15 any reference to Indian title.  16 Then back to the chronological sequence at page 69  17 of Part 2 is Douglas' despatch of March 18th  18 acknowledging receipt of Lytton's despatch of the 30th  19 of December, and on page 70 Douglas' despatch to  20 Lytton of March the 25th, 1859, in which reference is  21 made to a gold strike in the Queen Charlotte Islands.  22 And in paragraph 6 he states:  23  24 "I have for some time past had in the  25 Goverment employ a respectable Scotchman, named  26 Downie, one of the most successful miners in  27 California, and known all over that state as  28 Major Downie, the founder of the town of Downie  29 Downieville.  He accompanied Mr. McKay last  30 summer in his overland journey from Harrison's  31 River to Howe's Sound.  He has since explored  32 Jarvis' Inlet, where he spent the greater part  33 of the winter, and lately made an excursion  34 with Indians into Desolation Sound, which he  35 has in part closely examined with reference to  36 its mineral character."  37  38 And at the last sentence:  39  40 "He is not therefore expensive to the  41 Colony, and may possibly, from his practical  42 knowledge of mining and enterprizing turn of  43 mind, make some valuable discovery, and will at  44 least contribute much information respecting  45 the mineral character of the country."  46  47 And then there is an enclosure which is Downie's 19611  Reading of Despatches  by Mr. Goldie  1 account of his reference to the Queen Charlotte  2 Islands, and I'm not going to refer to that.  3 The section of Part 2 which contains -- starts at  4 page 73 consists of Lytton's despatches to Douglas,  5 the first being December 16th, 1858, and I'm not going  6 to read that.  It's primarily taken up with the matter  7 of revenues and the expectation of the mother country  8 that the colony would be self-sufficient.  And then  9 his despatch of December 30th, 1858, acknowledging  10 Douglas' of the 9th of September and the 12th October,  11 and he commends Douglas, and in the last sentence he  12 states, and I quote.  13 THE COURT:  What page is this?  14 MR. GOLDIE:  Page 74, my lord.  15 THE COURT:  Oh, yes, thank you.  16 MR. GOLDIE:  Lytton of December 30th.  And I'm going to read  17 only the last sentence:  18  19 "I cannot conclude without expressing my cordial  20 approval of the manner in which you appear to  21 have carried out the two objects which, at the  22 outset of such a Colony, should be steadfastly  23 borne in view; viz., a liberal and kindly  24 welcome to all honest immigrants, and the  25 unquestionable supremacy of British Sovereignty  26 and law."  27  28 Lytton of the same date, December 30th, the second  29 despatch to Douglas, is one primarily taken up with  30 I'll call them administrative matters.  And over on  31 page 76 is Lytton's despatch of December 30th which I  32 have just read.  The next is Lytton's despatch of  33 January the 20th acknowledging receipt of Douglas'  34 despatches enclosing two proclamations and the notice  35 prohibiting the sale of liquor to natives.  The  36 enclosure is a form of a grant for Crown lands in  37 British Columbia.  And I desire to draw to your  38 lordship's attention only the last paragraph, the  39 proviso which reads, and I quote:  40  41 "Provided nevertheless, that it shall at  42 all times be lawful for Us, Our heirs and  43 successors, or for any person or persons acting  44 in that behalf, by Our or Their authority, to  45 resume without compensation any part of the  46 said lands which it may be deemed necessary to  47 resume for making roads, canals, bridges, 19612  Reading of Despatches  by Mr. Goldie  1 towing-paths, or other works of public utility  2 or convenience; so, nevertheless, that the  3 lands so to be resumed shall not exceed  4 one-twentieth part of the whole of the lands  5 aforesaid..."  6  7 Et cetera.  And I should complete that.  8  9 "...and that no such resumption shall be made of  10 any lands upon which any buildings may have  11 been erected, or which may be in use as  12 gardens, or otherwise, for the more convenient  13 occupation of any such buildings."  14  15 And I only note, my lord, that the reserves set  16 aside for Indians contained, so far as I'm aware, no  17 such reservation of resumption.  18 Page 78, the only despatch I'm going to refer to  19 is that of the 7th of February beginning half-way down  20 page 78 and it is taken up primarily with the question  21 of land transactions.  And he starts the second  22 paragraph of his despatch with the words:  23  24 "The lowest price of country lands in  25 Vancouver's Island would appear to have been  26 one pound per acre, and I think that the same  27 may with propriety be adopted in Fraser's River  28 and the other mining districts..."  29  30 But then he goes on to say "I should not object" for a  31 lower price, having regard to the lands in the  32 adjacent United States.  33 THE COURT:  I haven't found that, Mr. Goldie.  34 MR. GOLDIE:  Oh, I'm sorry, page 78, my lord.  35 THE COURT: Yes.  36 MR. GOLDIE:  The despatch number 9 beginning —  37 THE COURT:  Oh, I see it.  38 MR. GOLDIE:  It's beginning in the second paragraph, and then I  39 jump down to the bottom of the page, the last  40 paragraph.  41  42 "Another question of importance, and one on  43 which a flood of light has been thrown by  44 experience in other Colonies, is whether  45 payment for the land should be prompt or on the  46 contrary allowed to be made in instalments.  I  47 have not a doubt myself, from the wide 19613  Reading of Despatches  by Mr. Goldie  1 experience which has been acquired on this  2 subject, that prompt payment is the proper  3 rule.  It is the best indication of a  4 purchaser's being really possessed of means to  5 cultivate his lot, it avoids harassing the  6 Government with the existence of a whole  7 population of small debtors, from whom it is  8 next to impossible to collect their dues, and  9 above all it maintains a sounder state of  10 society by not encouraging the premature  11 conversion into petty and impoverished  12 landowners of those who ought to be labourers."  13  14 I said yesterday and I repeat that one of the  15 great differences between Douglas and the home office  16 was the price to be charged for land and whether the  17 land could be bought in instalments.  18 Then over to page 80, the first complete despatch  19 on that page of February 11th, 1859, acknowledges  20 Douglas' despatch of the 29th of November containing a  21 report of the sale of town lands at Old Fort Langley  22 and approving of the proceedings.  And on the same  23 page and on the same date, February 11th, 1859, Lytton  24 acknowledges receipt of the despatch reporting the  25 Proclamation of the Act of Parliament providing for  26 the Government of British Columbia and the  27 installation of the public officers and approval of  28 the steps which you have taken for this purpose, and  29 advising that he has told the Hudson's Bay Company the  30 fact that their revocation has been promulgated.  31 The next pages are primarily administrative or  32 acknowledgement of despatches from Douglas, and I go  33 over to page 82, the first despatch of March the 19th,  34 1859.  35  36 "I have to acknowledge the receipt of your  37 Despatch No. 42 of the 4th December last,  38 transmitting copies of two Proclamations issued  39 by you, the first conferring on yourself and  40 your successors the power to convey Crown lands  41 within the Colony of British Columbia, the  42 second imposing duties and imports into British  43 Columbia."  44  45 And concluding with these words:  46  47 "I have laid these Proclamations before the 19614  Reading of Despatches  by Mr. Goldie  1 Queen, and I am commanded to acquaint you that  2 Her Majesty has been pleased to approve them."  3  4 One of those is the first Calder Proclamation  5 which will be dealt with in greater detail.  And then  6 the next one is his of April the 11th which starts at  7 the bottom of the page and deals with the proposal of  8 Douglas that a body of the Irish Constabulary Force be  9 sent out and the cost of it is regarded by Carnarvon  10 in the absence of Lytton as being excessive and would  11 not be borne by the home country.  Again, there are a  12 series of despatches which are despatches which are  13 primarily administrative commenting on Douglas'  14 proposals.  And I go now to page 86 in which on May  15 the 7th, 1859 Carnarvon in Lytton's absence states  16 that he had before him Douglas' despatch of February  17 19th "with a copy of a Proclamation which you had  18 issued for regulating the disposal of the Crown lands  19 in British Columbia."  He refers to his despatch of  20 the 7th of February setting out his principles and  21 suggesting a reconsideration of the sale of lands on  22 instalment terms.  23 Then at page 87, or I should note on page 86 that  24 the Queen has chosen the name of New Westminster for  25 the future capital of British Columbia.  That's number  26 23 of May the 5th.  At page 87 there is a despatch  27 with a number of long enclosures which all deal with  28 the question of the construction of lighthouses in the  29 Straits of Juan de Fuca and they are presumably  30 enclosed in the material filed or tabled in Parliament  31 because the colony was to pay some part of those  32 lighthouses.  33 Then at page 92 is the despatch of May 20th, 1859,  34 which I read just a few minutes ago.  And May 23rd  35 despatch deals with the Governor's salary which is to  36 be increased but only out of the proceeds of the --  37 only out of the revenue of British Columbia and when  38 it amounts in the aggregate to not less than 50,000  39 pounds.  And then a reference to the location of the  40 capital and following the end paper is a map which I  41 needn't refer to.  These accompanied certain reports  42 dealing with the feasibility of New Westminster being  43 a sea port for British Columbia.  44 Now, that completes the papers that were laid  45 before Parliament on the 12th of August, 1859, and the  46 next set, Part 3, are those which were laid before  47 Parliament in 1860.  They include Douglas' despatches 19615  Reading of Despatches  by Mr. Goldie  1 from April the 8th, 1859, to January 27th, 1860, and  2 the secretary of state's despatches from June the 3rd,  3 1859, to April 16, 1860.  One other introductory  4 remark, my lord, it should be noted there was a change  5 of government and the Duke of Newcastle replaced Sir  6 Edward Bullwar Lytton on or about June the 18th, 1859;  7 a little confusing because Douglas continues to  8 address his despatches to Lytton until August of 1859.  9 THE COURT: Well, when did the Duke of Newcastle become —  10 MR. GOLDIE:  About June the 18, 1859, my lord.  The first  11 despatch from Douglas is dated April the 8th, 1859,  12 and again is primarily of a reporting character.  At  13 paragraph 4 he states:  14  15 "The construction of the Harrison or  16 Lillooet road has been the great source of  17 outlay this season, that work having cost the  18 colony nearly 14,000 pounds."  19  20  21 Before I leave that despatch, my lord, I refer to  22 paragraph 10 on page 2 where he refers to the "want of  23 an Assay Office in the Colony" and as a result many  24 miners who can't change their gold dust except at a  25 disadvantageous rate "fly", to use Douglas' words, "in  26 disgust with their gold to San Francisco".  I mention  27 it because it takes up a good deal of the  28 correspondence later and was in place by the time of  29 the major gold rush in the Cariboo.  30 On page 4 is Douglas' despatch of the 11th of  31 April acknowledging receipt of Lytton's despatch of  32 the 22nd of January approving of the construction of  33 the Harrison Road, which of course by this time had  34 been built.  In this, Douglas' despatch of April the  35 12th, on page 5, paragraph 2, he notes that:  36  37 "Judge Begbie is now on circuit, in British  38 Columbia, having successively opened court at  39 Langley, Fort Hope, and Yale, and by last  40 accounts was proceeding to 'Lytton' with a  41 similar object in view."  42  43 And then on page 8 he reports the finding at  44 Bridge River which again foreshadowed a focus of gold  45 mining in that locality and he encloses a report from  46 his assistant commissioner Mr. Travaillot, all of  47 whose correspondence was in French.  An early example 19616  Reading of Despatches  by Mr. Goldie  1 of bilingualism.  2 At page 7 is Douglas' despatch of April the 12th,  3 a reporting on freight rates in the Fraser River and  4 his concern over the effect of that on the colony and  5 enclosing some correspondence with owners of steam  6 vessels.  7 Page 9, his report or despatch of April the 25th  8 to Lytton.  He commences by saying:  9  10 "Since my report of the 12th instant  11 nothing of much importance has occurred  12 respecting the colony of British Columbia."  13  14 Judge Begbie has returned.  The country appears to  15 be quiet.  16 Paragraph 3:  17  18 "The Indian population have suffered much  19 privation of food in consequence of the dearth  20 of fish and their natural improvidence; but the  21 white miners were well supplied, though  22 provisions were selling at a high price, caused  23 chiefly by the distance from the sea and the  24 heavy expense of transport."  25  26 Paragraph 6:  27  28 "The Royal Engineers and Royal Marines have  29 been all landed safely at Queensborough, where  30 they are now stationed, and Colonel Moody is  31 also at that place making arrangement for their  32 comfortable accommodation and directing the  33 surveys of public land and other affairs  34 connected with his department."  35  36 His despatch of May the 8th 1859 is again mainly  37 administrative.  At paragraph 8 he is dissatisfied  38 with the system of taxation of the miners and states:  39  40 "Many reasons induce me to try another  41 plan, which under firm management would I think  42 work well.  By remodelling the whole system of  43 mining regulations in British Columbia, and  44 instead of levying mining fees which would, in  45 that case, be abolished, I would purpose to  46 treat the gold fields simply as crown land, and  47 letting it out in large or small allotments, on 19617  Reading of Despatches  by Mr. Goldie  1 leases at a fixed rent, to any persons disposed  2 to work the soil."  3  4 And as we will see later, my lord, the many  5 persons included native peoples and Chinese labourers  6 as well as the white immigrants.  7 In his despatch on page 11 dated May the 12th,  8 1859, he acknowledges receipt of Lytton's despatch of  9 the 11th of February in which Lytton approves of the  10 sale of town lots at Langley which had taken place in  11 November, another example of the delay in  12 administration caused by distance.  And he  13 acknowledges the receipt of the Canadian Acts on sale  14 of lands to aliens.  15 The despatch at the bottom of that page, May 18th,  16 1859, -- June, thank you, -- no, page 11.  It's dated  17 May, but received on June 27th, and conveys the  18 information of a gold strike in the Bridge River  19 district.  And then, my lord, on page 12 his dispatch  20 of May the 23rd in which he comments on Lytton's  21 dispatch of the 7th of February and commences with the  22 words:  23  24 "I observe with much satisfaction that the  25 system of land sales which we proposed to  26 continue in Vancouver's Island, and to  27 introduce into British Columbia, has generally  2 8 met with your approval."  29  30 But he goes on to say at paragraph 3:  31  32 "The only material point on which we  33 diverged from your own views was in not  34 requiring prompt payment for land and in  35 permitting payment by instalments, say one-half  36 on delivery and one-half at the end of two  37 years.  38 The object of this regulation was to  39 facilitate the purchase of land by settlers  40 with small capital, who form the bulk of the  41 present intending settlers in British Columbia.  42 This system is undoubtedly open to the serious  43 objections so forcibly stated in your Despatch,  44 but we think it would not be advisable to alter  45 it at present, nor until the settlement of the  46 country is advancing favourably and the public  47 revenue begins to feel the influence derived 1961?  Reading of Despatches  by Mr. Goldie  1 from the progressive expansion of the resources  2 of the country, and through the increase of the  3 Customs duties and by direct imposts on  4 property, and on a population of profitable  5 consumers well capable of paying taxes."  6  7 Paragraph 10:  8  9 "Surveys are being extended to all the open  10 districts of land on Fraser's River, so that  11 the country may be laid out for immediate  12 settlement and occupation."  13  14 The despatch on page 13 I need not deal with.  It  15 contains a long report from the treasurer of the  16 colony.  Page 16 reports on the sale of lots in  17 Queensborough.  The despatch is dated June the 6th,  18 1859, and states that 310 lots were sold out of 318  19 offered.  And there is an enclosure setting out a  20 reconciliation of the amounts received.  21 The despatch at the bottom of the page dated June  22 the 8th, 1859, reports the return to Victoria from the  23 Upper Fraser of many miners both fortunate and  24 unfortunate, and the issue in paragraph 11 of a new  25 Customs Act and Alien Act, and the enclosed report  26 from Judge Begbie which is dated April 25th, 1859.  27 And in paragraph one the judge describes his circuit.  28  29 "I have to report to you my return from the  30 circuit which I have just held in British  31 Columbia, as far as the fountains, to which  32 point I followed nearly the course of Fraser  33 River.  From thence I returned by the Lillooet  34 route and the Harrison River to Langley."  35  36 As far as I can make out from this and later  37 despatches Fountains is just beyond Lillooet.  He was  38 accompanied by the High Sheriff and Registrar and  39 Assize Clerk.  40 Paragraph 6:  41  42 "Between Fort Yale and Quayome..."  43  44 And I haven't located that, my lord.  45  46 "...there did not appear to be any land, except a few  47 spots here and there of a very few acres in extent, 19619  Reading of Despatches  by Mr. Goldie  1 capable of cultivation; but the soil was rich and well  2 fitted for roots, and at Spuzzen accordingly the  3 Indians had considerable potato patches; but nothing  4 like an English farm could be established."  5  6 Paragraph 11, he is referring to his visit at  7 Lytton.  He says:  8  9 "It was a great inconvenience to have no  10 access to any books or plans of the town, which  11 were all locked up.  There were a few contested  12 lots, but not many, and I should think the  13 difficulties are not hard to settle."  14  15 Paragraph 12:  16  17 "In the view of the extreme dearness and  18 scarcity of fresh vegetables, I authorized one  19 James Tackley to enclose and cultivate a small  20 strip of land, about an acre, near the river  21 Fraser; such authorization to confer no  22 pre-emption right nor any right whatever after  23 Christmas next, and not to be alienable except  24 by consent of the Chief Commissioner."  25  26 And then he granted the same kind of rights to a  27 number of others.  The paragraph immediately preceding  28 paragraph 13 reads, and I quote:  29  30 "There was a considerable degree of anxiety  31 manifested everywhere for the possession of  32 land; in some instances the mere right to take  33 the crop was not satisfactory, in others it was  34 acquiesced in."  35  36 And then he continues to describe his travels and  37 on page 21, paragraph 21, he is at what was then known  38 as Cayoosh, which appears to be either Lillooet or a  39 settlement which preceded Lillooet, and it reads, and  4 0 I quote:  41  42 "Two chiefs, said to be of extensive  43 authority, paid me a visit while at Cayoosh.  44 They complained of the conduct of the citizens  45 of the United States in preventing them from  46 mining, in destroying and carrying away their  47 root crops without compensation, and in laying 19620  Reading of Despatches  by Mr. Goldie  1 wholly upon the Indians many depredations on  2 cattle and horses which these Indians informed  3 me were in part at least committed by 'Boston  4 men'.  On the other hand many cases of cattle  5 stealing were alleged by the whites of all  6 nations against the Indians, and stealing  7 indeed of anything which could by possibility  8 be eaten.  For even the cattle which Indians  9 stole they did not attempt to sell or make use  10 of otherwise than as food; and it was admitted  11 on all bands that many hundreds of Indians had  12 died of absolute starvation during the winter.  13 The Indians said that the salmon had failed  14 them now for three years together. The whites  15 alleged, what is obvious to everybody, that the  16 Indians are extremely averse to work except  17 under the pressure of immediate hunger; and  18 that they are so improvident as rarely to look  19 beyond the wants of the day, and never to  20 consider the wants of a winter beforehand.  If  21 I may venture an opinion, I should think that  22 this is much more true of the savages who have  23 never been brought into contact with  24 civilization, than with those who have had even  25 a little acquaintance with the whites.  We  26 found almost everywhere Indians willing to  27 labour hard for wages, and bargaining acutely  28 for wages, and perfectly acquainted with gold  29 dust and the minute weights for measuring one  30 and two dollars with.  These circumstances are  31 inconsistent with an utter heedlessness for  32 next day's provisions; for in all cases we had  33 to find these Indians in provisions as well as  34 wages.  And the amount of wages for the most  35 abject drudgery to which human labour can be  36 put (viz.) carrying burthens, being 8 shillings  37 per day and provisions pretty uniformly  38 wherever we went, shows of itself a very high  39 average rate of profit as the wages of labour  40 in British Columbia.  If this is the average  41 remuneration of the most unskilled labour, what  42 ought skill labour supported by capital to  43 earn?  44 It was the uniform practise of storekeepers  45 to entrust these Indians with their goods,  46 generally 100 lbs. flour, beans, or pork, and  47 provisions for their own subsistence.  Thefts 19621  Reading of Despatches  by Mr. Goldie  1 were said to be unknown, and great care taken  2 of their burdens.  And these individuals who  3 work I found extremely fleshy and hearty.  My  4 impression of the Indian population is that  5 they have far more natural intelligence,  6 honesty, and good manners than the lowest  7 class, say the agricultural and mining  8 population, of any European country I ever  9 visited, England included."  10  11 And he refers at Cayoosh "I tried to cause a grand  12 jury to be summoned", but he failed because there were  13 not twelve British subjects there.  And then he  14 reports on his trap back down through Seaton Lake,  15 Anderson Lake, Harrison Lake, and so on.  16 Page 24, paragraph 32, reports that no reports of  17 violent crimes.  Then the second paragraph:  18  19 "It was alleged that liquor was sold  20 unscrupulously to Indians.  Some cases of  21 alleged breach of contract, which the  22 defendants maintained to be mistaken contracts,  23 were brought forward; and it was also given us  24 to understand that those who brought such  25 circumstances to our notice were amongst the  26 most audacious infringers of the law when the  27 officers of the law were absent."  28  29 Then paragraph 34 he sums it up:  30  31 "The chief points which struck me, to make  32 a brief re-capitulation, were:  First the ready  33 submission of a foreign population to the  34 declaration of the will of the executive, when  35 expressed clearly and discreetly, however  36 contrary to their wishes.  37 Secondly the great preponderance of the  38 California or Californicized element of the  39 population, and paucity of British subjects.  40 Thirdly the great riches, both auriferous  41 and agricultural, of the country.  42 Fourthly the great want of some fixity of  43 tenure for agricultural purposes.  44 And fifthly the absence of all means of  45 communication, except by foaming torrents in  46 canoes..."  Et cetera.  47 19622  Reading of Despatches  by Mr. Goldie  1 And then he sets out his table of distances.  2 Though I should say that I see here just below Spuzzem  3 in that table on page 25 that Quayome is Boston Bar.  4 The despatch of July 1st, 1859, at page 25 is  5 taken up with the practise of foreign attorneys in the  6 courts.  The despatch on page 26 of July 2nd is again  7 primarily taken up with administrative matters and the  8 repayment of expenses incurred.  July 2nd, a despatch  9 on page 27, is taken up again with the money  10 questions, and Douglas' comments about the  11 difficulties that he is concerned with, and he  12 concludes with the words, and I quote the last four  13 lines:  14  15 "For the day will undoubtedly come, and may not  16 be far distant, when the possessions of Great  17 Britain in this part of the world will exercise  18 no insignificant or unimportant influence on  19 the fast-spreading interests in the Pacific  20 Ocean of other great nations."  21  22 The despatch of July the 4th, 1859, commencing on  23 page 28, is primarily taken up with summarizing the  24 report of one of the assistant gold commissioners  25 located at Fort Yale.  And in paragraph 13 he reports  26 on the opening of roads in which the Royal Engineers  27 are involved.  And at page 15 --  28 THE COURT:  Paragraph 15.  29 MR. GOLDIE:  Paragraph 15.  Thank you, my lord.  He states:  30  31 "The regular settlement of the country by a  32 class of industrial cultivators is an object of  33 the utmost importance to the colony, which is  34 at present dependent for every necessary of  35 life, even to the food of the people, on  36 importation from abroad."  37  38 Paragraph 18:  39  40 "We are for that reason most anxious to  41 encourage the actual settlement of the country,  42 and that the process should commence on the sea  43 coast, and spread from thence, as much as  44 possible, continuously along the course of the  45 great rivers into the interior."  46  47 Then paragraph 26: 19623  Reading of Despatches  by Mr. Goldie  1  2 "Colonel Moody is making great efforts to  3 bring surveying parties rapidly into the field,  4 but the survey of the site of Queensborough,  5 and other necessary work, had led to  6 unavoidable delays, and no country land has as  7 yet been brought into market.  There is much  8 popular clamour on that account, and should the  9 pressure for land be great, I think it will be  10 advisable to meet the emergency by establishing  11 some temporary system of occupation, which  12 would enable settlers to hold and improve  13 certain specified tracts of land under a  14 pre-emption right until the surveys are  15 completed, when it might cease to be in force."  16  17 And then on page 31, my lord, is an enclosure, "A  18 Return of Provisional Appointments made by the  19 Governor of British Columbia, between the 1st January  20 and 30th June 1859, and now submitted for Approval and  21 Confirmation".  The first one is that of a Stipendiary  22 Magistrate and Justice of the Peace at Queensborough.  23 The second is that of Mr. Peter O'Reilly at Langley,  24 and his appointment is December 3rd, 1858.  Your  25 lordship has heard Mr. O'Reilly's name mentioned on a  26 number of occasions.  The next is that of High Sheriff  27 at Port Douglas.  The fourth is Mr. Thomas Elwyn,  28 Stipendiary Magistrate and Justice of the Peace at  29 Lillooet.  Mr. Elwyn was the -- his name will be heard  30 again in connection with the Collins Overland  31 Telegraph.  And finally, Mr. Ball, who was appointed  32 Stipendiary Magistrate and Justice of the Peace, March  33 the 8th, 1859, and I may not deal with the others.  34 Then the next despatch of July 23rd deals with the  35 lighthouse question.  The despatch of August the 16th  36 encloses the report of a journey of survey in the  37 districts of British Columbia bordering on the  38 Thompson, Fraser, and Harrison Rivers, undertaken at  39 the Governor's request by a Captain Richards of HMS  40 "Plumper" and conducted by Lieutenant Richard Mayne.  41 The actual report itself is appended and I'm going to  42 refer only to page 34 at the fourth paragraph from the  43 bottom.  44  45 "The Indians all over the country suffered  46 fearfully from want of food last winter, a  47 great many dying of starvation." 19624  Reading of Despatches  by Mr. Goldie  1  2 And then the Mayne report continues over to page  3 39.  There is Douglas' despatch of August 17th  4 acknowledging the name chosen by Queen Victoria for  5 New Westminster, and on page 40 there is another  6 report of a reconnaissance of the Harrison and  7 Lillooet route to the Upper Fraser by Lieutenant  8 Palmer of the Royal Engineers and including plans and  9 three photographic views.  There's nothing I wish to  10 refer to except on page 45, the fourth paragraph from  11 the bottom beginning with the words "On this delta",  12 and it reads:  13  14 "On this delta, and particularly towards  15 its western point, a few farming men have  16 cultivated land, and there is also a large  17 Indian village, surrounded by potato patches,  18 et cetera.  In the centre of each island is a  19 small lake, and the ground for a considerable  20 distance from their edges is swampy..."  21  22 And so on.   He refers to Indian villages in other  23 places, but I needn't read them.  24 THE COURT: The valley he's talking about is the valley in the  25 Upper Lillooet, isn't it?  26 MR. GOLDIE:  Yes.  I'm not sure if it's the — well, I would be  27 speculating on the identity.  2 8 At page 4 8 at the top:  29  30 "The great cry is for a waggon road, and  31 cheap and good provisions, and these once  32 obtained, there will be no further doubt as to  33 the stay of the miners in the country."  34  35 Then I come to Douglas' despatch on page 49 dated  36 August 23rd 1859.  He states:  37  38 "That Colony is making satisfactory  39 progress."  40  41 And in paragraph 2 he states:  42  43 "The great enterprise of the season, the  44 waggon road from Douglas through the valley of  45 the Harrison River to the Upper Fraser, beyond  46 the mountains, has been necessarily retarded by  47 the withdrawal of the Royal Marines for service 19625  Reading of Despatches  by Mr. Goldie  1 on the Island of San Juan."  2  3 And then he goes on to state his need of money and  4 he would like to raise a loan in the United Kingdom.  5 Over the page on page 50, paragraph 8:  6  7 "My advices from Fort Yale are up to the  8 17th of August.  Mr. Commissioner Saunders  9 reports that the miners are, almost without  10 exception, doing exceedingly well, and in the  11 newly discovered diggings at Quesnel's River,  12 are making on the average one ounce of gold to  13 the man per diem."  14  15 Now that your lordship will see is getting up  16 further towards the Cariboo.  17 THE COURT:  Shall we take the afternoon adjournment, Mr. Goldie?  18 MR. GOLDIE:  Yes, my lord.  19 THE REGISTRAR: Order in court. Court stands adjourned for a  20 short recess.  21  22 (PROCEEDINGS ADJOURNED FOR THE AFTERNOON RECESS)  23  24 I hereby certify the foregoing to  25 be a true and accurate transcript  26 of the proceedings herein to the  27 best of my skill and ability.  28  29  30 Tanita S. French  31 Official Reporter  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 19626  Reading of Despatches  by Mr. Goldie  (PROCEEDINGS RECONVENED PURSUANT TO THE AFTERNOON BREAK)  THE REGISTRAR:  Order in court.  THE COURT:  Yes, Mr. Goldie.  MR. GOLDIE:  My lord, I was on page 50 of Part 2.  THE COURT:  Yes.  MR. GOLDIE:  Part 3.  Thank you.  I read paragraph 11:  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 newly explored tract of mining country  about Alexandria and Quesnel's River is  reported to have more of the general features  of a gold country than any yet known part of  British Columbia."  Paragraph 16:  "The country is everywhere in a perfectly  tranquil state."  Paragraph 17:  "A body of nearly 100 gold miners sailed from  this place on the 27th of July to explore the  gold fields of Queen Charlotte's Island, and I  trust this little band of pioneers will meet  with the success their enterprise deserves.  The expedition was equipped entirely at their  own expense.  I promised, however, to exempt  the party from all taxes for six months to  come, and to allow them certain privileges in  respect to quartz claims, not inconsistent  however with the provisions of the general  mining regulations which I propose shortly to  issue."  Then on page 51 the despatch of September 13th,  1859, enclosing seven proclamations dated from the  15th of May to the 31st of August.  I will refer only  to the last one, which is the Gold Fields Act.  It is  one of those which will be examined in greater detail,  and I simply draw to your lordship's attention the  extent of it.  It starts on page 59 -- I'm sorry -- 58  and runs through to -- with its regulations runs  through to page 65.  I read at this point only  paragraph V on page 59.  "Every free miner shall, during the continuance 19627  Reading of Despatches  by Mr. Goldie  1 of his certificate have the right to enter  2 without let or hindrance upon any of the waste  3 lands of the crown, not for the time being  4 lawfully occupied by any other person, and to  5 mine in the land so entered upon."  6  7 And then page 65, Douglas despatch of October 18th  8 received almost two months to the day later in London.  9 It reports on his -- what he characterizes as an  10 official tour in British Columbia, in the course of  11 which he visited the towns of New Westminster,  12 Langley, Douglas, Fort Hope and Yale, travelled  13 through the passes of Fraser's River to Spuzzem, and  14 inspected all the mining districts west of that place.  15 He had the opportunity of conversing familiarly with  16 the people, of ascertaining by personal intercourse  17 their wants and views, their real and fancied  18 grievances, and studying practically the best means of  19 promoting the settlement and permanent interests of  20 the colony.  He paid particular attention to the  21 workings of the Gold Fields Act and noted some  22 features which would have to be -- would have to be  23 modified.  24 Paragraph 19 on page 67.  I'll read 18:  25  26 "The value of the present gold exports from  27 British Columbia is estimated at 14,000 pounds  28 a month, or 168,000 pounds per annum; but this  29 estimate does not include the large amount of  30 gold dust remaining in the hands of the miners,  31 nor give a just idea of the whole quantity  32 produced, which no doubt far exceeds the value  33 herein stated.  34 19.  The entire white population of British  35 Columbia does not probably exceed 5,000 men,  36 there being, with the exception of a few  37 families, neither wives nor children to refine  38 and soften, by their presence, the dreariness  39 and asperity of existence."  40  41 Paragraph 24:  42  43 "The colony is yet destitute of one highly  44 important element, it has no farming class, the  45 population being almost entirely composed of  46 miners and merchants.  The attention of  47 Government has been very anxiously directed to 1962?  Reading of Despatches  by Mr. Goldie  1 the means of providing for that want by the  2 encouragement of agricultural settlers, a class  3 which must eventually form the basis of the  4 population, cultivate and improve the face of  5 the country, and render it a fit habitation for  6 civilized man.  The miner is at best a  7 producer, and leaves no traces but those of  8 desolation behind; the merchant is allured by  9 the hope of gain; but the durable prosperity  10 and substantial wealth of states is no doubt  11 derived from the cultivation of the soil.  12 Without the farmer's aid, British Columbia must  13 for ever remain a desert, be drained of its  14 wealth, and dependent on other countries for  15 daily food."  16  17 Then he goes on to state on page 68, paragraph 25:  18  19 "The colony has not proved attractive to  20 agricultural settlers,"  21  22 only four lots being sold.  23 Paragraph 26:  24  25 "At Douglas and Hope, various applications were  26 made to me for rural land, by persons who had  27 taken a fancy to the country, and in some  2 8 instances, made valuable improvements.  They  29 asked to be secured in the ownership of any  30 land they might improve, at the upset price of  31 10 shillings an acre; and that it should not be  32 exposed to public sale, with a value enhanced  33 by their own labour and outlay..."  34  35 Paragraph 27:  36  37 "There was nothing" --  38  39 THE COURT:  What do you understand him to mean by Douglas?  40 MR. GOLDIE:  Douglas was a little town very close to Langley.  I  41 have located it on one of the maps in this exhibit, my  42 lord, and if I can find it, I'll --  43 THE COURT:  All right.  Well, that's fine.  44 MR. GOLDIE:  -- bring it to your lordship's attention later on.  45 But it's on the Fraser River.  I'm sorry, I think I'm  46 right in that.  There is, of course, Port Douglas.  4 7    THE COURT:  Yes. 19629  Reading of Despatches  by Mr. Goldie  1 MR. GOLDIE:  Which is at the head of Harrison Lake.  2 THE COURT:  Yes.  3 MR. GOLDIE:  But Douglas, I believe, is elsewhere.  Yes.  Well,  4 I may be wrong.  Douglas and Port Douglas may be the  5 same.  I may be thinking of -- but I'll locate it on  6 the maps in the exhibit.  7 In paragraph 27 he states that he issued a  8 circular.  This is about halfway down the page -- down  9 the paragraph.  10  11 "I therefore had recourse to an expedient which  12 fully met the case, without sacrifice to the  13 Government, and to the perfect satisfaction of  14 the public, by issuing a circular addressed to  15 the Assistant Commissioners of Crown lands at  16 Hope, Yale, Douglas, Lytton, and Cayoosh,  17 directing them to permit all persons being at  18 the time British subjects, and all persons who  19 have recorded their intention of becoming  20 British subjects, to hold tracts of unsurveyed  21 Crown land, not being town sites, nor sites of  22 Indian villages, and not exceeding 160 acres in  23 extent, with a guarantee that the same would be  24 fully conveyed to the holder when the land is  25 surveyed, at a price not to exceed 10 shillings  26 an acre.  27 This is in fact the basis of a pre-emption  28 law founded on occupation and improvement, the  29 Government agreeing on those conditions to  30 convey the land at a fixed price; it being  31 moreover provided that the rights of actual  32 settlers, of those persons only who are found  33 in possession when the land is surveyed will be  34 recognized and allowed."  35  36 Then in paragraph 29:  37  38 "If that plan should fail in attracting a  39 population I think it will be advisable to  40 resort to the Canadian system of making free  41 grants not exceeding 100 acres of rural land to  42 actual settlers, on condition of their making  43 certain specified improvements."  44  45 Then in paragraph 31:  46  47 "We hope to complete the last section of a 19630  Reading of Despatches  by Mr. Goldie  1 pack-road leading by the left bank of the  2 Fraser...(up) to Lytton, a distance of 170  3 miles,"  4  5 and so on.  And then Mr. Douglas sketches in the means  6 by which settlers might reach British Columbia by land  7 from Canada.  8 The despatch on page 69 of November the 10th,  9 1859, records the receipt by him of a despatch in  10 which I believe it was -- well, Lytton's despatch in  11 which he asserts the desirability of payment in full  12 of land and without it there being great  13 inconvenience.  And Douglas states in 2:  14  15 "In my Despatch No. 156, of the 23rd May,  16 replying to Sir Edward Bulwer Lytton's Despatch  17 No. 16, of the 7th February, I stated my full  18 concurrence in regard to the advantages  19 attending the system of prompt payment for the  20 land, and we shall, if practicable, without  21 retarding the settlement of the country,  22 introduce the practice into British Columbia."  23  24 Page 70 is Mr. Douglas' despatch of November 21st,  25 1859, which encloses Downie's report dated at Fort St.  26 James of October 10th, 1859.  Downie accompanied the  27 group that went off to the Queen Charlotte Islands and  2 8 then went on to Fort Simpson and then went up the  29 Skeena River.  30 Mr. Douglas states:  31  32 "I have the honour to forward for your Grace's  33 information the copy of a report which I lately  34 received from Mr. William Downie, the same  35 enterprising person who last winter furnished a  36 report...on Jarvis Inlet.  37 The report now transmitted relates to the  38 unsuccessful result of the attempt made in the  39 month of July last by a body of miners from  40 this place, to explore Queen Charlotte's  41 Island.  42 The adventurers, dismayed by the rugged  43 aspect of the country, the humidity of the  44 climate, and the numbers and formidable  45 appearance of the native tribes, did not  46 prosecute the enterprise with resolution or  47 tenacity, and soon returned to this place, with 19631  Reading of Despatches  by Mr. Goldie  1 the exception of a few daring spirits who  2 accompanied Mr. Downie to Fort Simpson, and  3 there made arrangements to explore the course  4 of Skeena River, which flows into the sea at  5 Port Essington, North latitude 54-15.  6 The party commenced the ascent of the  7 Skeena in a canoe, which they managed to take  8 on as far as the Forks,"  9  10 that will become clear from the context is Hazelton,  11 my lord,  12  13 "a distance of 110 miles from the sea.  The  14 river ceases to be navigable at that point, in  15 consequence it is supposed of falls and  16 dangerous rapids; and they had to leave the  17 canoe, and to ravel 55 miles by land to the  18 Indian village of 'Naas Glee,' a celebrated  19 native fishing station, from whence the Skeena  20 again becomes navigable to its source in  21 'Babine Lake,' 15 miles beyond 'Naas Glee.'"  22  23 When Mr. Douglas says the Skeena again becomes  24 navigable, he is confusing the Babine with the Skeena.  25 And then at paragraph 8:  26  27 "The valley of the Skeena is thus shown to be an  28 available avenue into the interior of British  29 Columbia, and will, I have no doubt, soon  30 become a most important outlet for the upper  31 districts of Fraser's River, which, from the  32 course of the river and the direction of the  33 coast, are brought in close proximity with the  34 sea.  35 As a means of supplying the distant mining  36 districts of British Columbia by a shorter and  37 cheaper route than the valley of Fraser's  38 Rivers, its importance will soon be appreciated  39 and attract the attention of the mining and  40 commercial classes; and I believe that the day  41 is not far distant when steamers will be busily  42 plying on the waters of the two great inland  43 lakes."  44  45 Mr. Douglas is referring to Babine Lake and Stuart  46 Lake from the earlier context.  47 Then he goes on to report another gold find in 19632  Reading of Despatches  by Mr. Goldie  1 paragraph 10:  2  3 "It appears from the American papers published  4 in Washington territory that rich gold diggings  5 have been very lately found by the men of the  6 United States Boundary Commission on the  7 Shimilcomeen River, and we shall have to turn  8 our attention immediately to that quarter, as  9 the greater part of the Shimilcomeen Valley  10 lies north of the 49th parallel of latitude,  11 and within the limits of this colony."  12  13 The enclosures are Mr. Downie's report and the report  14 from the American paper.  15 Referring to Mr. Downie's report, I'll just read  16 some excerpts.  On page 72 the paragraph opposite the  17 third or fourth marginal note, "Fort Simpson."  And  18 he's talking about the explorations in the Queen  19 Charlottes, and he says:  20  21 "From here we return to Gold Harbour.  A party  22 who had remained behind to prospect inland had  23 met with no better success than ourselves.  We  24 then consulted what was the best thing to do.  25 I did not wish to return to Victoria, as your  26 Excellency had desired me to explore some of  27 the inlets on the mainland, so I left Gold  28 Harbour with a party of 14 men for Fort  29 Simpson, and arrived there in eight days."  30  31 And then he -- about another quarter of the way  32 down the page he starts talking about gold, and it's  33 opposite the marginal note, "Gold Found."  He says:  34  35 "Gold is found here a few specks to the pan, and  36 the whole country look auriferous, with fine  37 bars and flats with clay on the bars; the  38 mountains look red, and slate and quartz can be  39 seen.  Next camp was at the village of  40 Kitalaska and I started in a light canoe ahead  41 of my party, as our canoe by all accounts could  42 not get much further, and I then determined to  43 penetrate to Port Fraser."  44  45 The asterisk reads:  46  47 Supposed to apply to an establishment of the 19633  Reading of Despatches  by Mr. Goldie  1 Hudson's Bay Company."  2  3 Continuing with his report:  4  5 "The Indian who was with me told me that a large  6 stream called the Kitchumsala comes in from the  7 north; the land on it is good and well adapted  8 for farming; here the Indians grow plenty of  9 potatoes.  To the south a small stream called  10 the Chimkoatsh, on the south of which is the  11 Plumbago mountain; I had some in my hand; it is  12 as clear as polished silver, and runs in veins  13 of quartz.  14 Near to this are the words 'Pioneer,  15 H.B.C' on a tree and nearly overgrown with  16 bark; the Indians told me it was cut by Mr.  17 John Wain, a long time ago.  From here to the  18 village of Kitcoonsa the land improves, the  19 mountains recede from the river, and fine flats  20 run away 4 or 5 miles back to their bases,  21 where the smoke is seen rising from the huts of  22 the Indians engaged in drying berries for the  23 winter, which abound here.  These Indians were  24 very kind to us, and wished me to build a house  25 there, and live with them."  26  27 And then he goes on to talk about the mineral  28 capabilities.  And then he states opposite the side  29 note "Coal":  30  31 "At Kitsagatala we entered a most extensive coal  32 country, the seams being in sight and cut  33 through by the river, and running up the banks  34 on both sides, varying in thickness from 3 to  35 35 feet."  36  37 Last paragraph:  38  39 "We experienced some dangers from the Indians  40 here, but a small present of tobacco, and by a  41 determined and unconcerned aspect, I succeeded  42 in avoiding the danger of a collision with  43 them.  We could go no further than Kittamarks,  44 the Forks of the Skeena river in the canoe, and  45 we had been 20 days from Fort Simpson, though  46 the journey could have been done in a third of  47 that time." 19634  Reading of Despatches  by Mr. Goldie  1  2 And then at page 73 he says:  3  4 "On the 21st September, I left Kittamarks with  5 two white men and two Indians and started over  6 a fine trail and through a beautiful country  7 for Fort Fraser, we crossed over an Indian  8 suspension bridge and entered some first-rate  9 land, our course being about east; we completed  10 about twelve miles to-day.  Next day it rained  11 hard, but we succeeded in doing twelve miles,  12 passing through as fine a farming country as  13 one could wish to see."  14  15 And he reports seeing to the north a chain of  16 mountains distant about 30 miles for the Hudson Bay  17 Company of a post called Bear Fort.  18  19 "Fifth day we encountered some dangerous looking  20 Indians,"  21  22 and so on.  And then he comments adversely on the  23 Indians at Naas Glee, which is really on the Babine  24 River.  25 And the last paragraph -- the last sentences in  26 that paragraph:  27  28 "These Indians are the worst I have seen in all  29 my travels.  Naas Glee is a great fishing  30 station, and all the worst characters  31 congregate here to lead an indolent life, as  32 they live on the proceeds of their salmon  33 fishery.  Thousand of salmon were drying at  34 this village."  35  36 And then about two paragraphs down it becomes  37 clear that the purchasers of those salmon are people  38 from the Hudson's Bay company's forts at Fort St.  3 9 James.  40 And he says, after describing his hardships, at  41 the bottom of the page:  42  43 "The only thing that supported us was the grand  44 idea of the enterprise we were engaged in--that  45 of being the first party to explore the route  46 from the Pacific to Fraser's River, which will  47 one day connect the Atlantic with the Pacific 19635  Reading of Despatches  by Mr. Goldie  1 Ocean."  2  3 The extracts from the -- of the discoveries on  4 the -- in the American territory south of British  5 Columbia and part of the Similkameen River valley is  6 indicated in the next two extracts, which I need not  7 read.  8 The despatch of December 22, 1859, is found at  9 page 75, and it encloses a copy of a proclamation  10 enabling --  11  12 "...for the establishment of courts in British  13 Columbia, to enable suitors to recover debts  14 not exceeding in value the sum of 50 pounds  15 sterling by a cheap and speedy method.  The  16 practice of the Supreme Court was found to be  17 too slow and expensive to meet the exigencies  18 of suitors and the recovery of small debts,  19 which were not unfrequently abandoned in  20 preference to incurring the expense of seeking  21 redress at that tribunal.  22  23 Judicial reform is one of Mr. Douglas' many abilities,  24 and the proclamation does it in a very direct way.  25 Paragraph 1:  26  27 "Every person whom I may from time to time  28 hereafter commission to act as a County Court  29 Judge in British Columbia shall, from the date  30 of his commission, be authorized and empowered  31 to hear and determine all personal pleas and  32 all actions of tort cognizable by the County  33 Courts in England in (a) manner hereafter  34 mentioned."  35  36 And then providing for rule-making powers.  37 Then the despatch of December 22nd, 1859, on page  38 77 encloses a proclamation dealing with customs levies  39 on the Fraser River.  The despatch at the bottom -- on  40 page 78, December 23rd, 1859:  41  42 "I have the honour of transmitting herewith, at  43 the request of Colonel Moody, the accompanying  44 copy of a communication from him respecting the  45 portions of land which it may be desirable to  46 reserve in Burrard's Inlet for naval purposes."  47 The -- that despatch is in -- is considered in 19636  Reading of Despatches  by Mr. Goldie  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR. ADAMS  MR.  MR.  MR.  THE  MR.  THE  MR.  COURT:  GOLDIE  COURT:  GOLDIE  MR.  THE  MR.  part in the Ludgate case to which I referred the other  day, and the discussion of the meaning of the word  "reserve" as at that time was referred to by Mr.  Justice Martin, so it was judicially considered.  And  he said --  Excuse my, my lord.  I'm going to object if my  friend is going to refer again to authority for the  interpretation of the documents that he's placing in  front of you.  GOLDIE:  Well, I'm not referring to the interpretation, I'm  referring to the use of a word that has been  judicially considered and --  ADAMS:  Well, with respect, my lord, that's legal argument.  GOLDIE:  Well, I'm informing your lordship of the context.  What is the word?  Reserve.  Oh.  And it's in the despatch.  "..may be desirable to  reserve in Burrard's Inlet for naval purposes."  And  the court said all that that means is that it is land  reserved by the executive from sale or pre-emption and  so held in that state pending the pleasure of the  executive.  Well, Mr. Adams, I don't really think it's offensive  to inform me that a court has made that determination,  and I don't think it's argument unless it goes on well  beyond just telling me about an authoritative  statement of what a word means.  Well, my lord, the authority of the statement surely  is a matter that is open to argument in argument.  I have no doubt that's so.  I just don't think  there's any serious risk of this case going off the  rails if I'm given a name of a case that makes a  finding of a meaning of a word which, of course, is  only effective for the purpose of that case.  It  isn't -- I don't think there's going to be attempt  made now to launch into an argument that will satisfy  me that the circumstance is such that I should apply  the same meaning.  It's a matter of information at  best, I should think, and I'm not going to be inflamed  by it in any way.  GOLDIE:  If the despatch contained these words, "It may be  desirable to reserve (by which I mean reserve from  pre-emption)," I'd read it.  COURT:  Yes.  GOLDIE:  All that the — that the authority that I referred  to is saying, that's what these words meant in those  THE COURT  MR. ADAMS  THE COURT 19637  Reading of Despatches  by Mr. Goldie  1  1  2  THE  COURT:  3  MR.  GOLDIE  4  THE  COURT:  5  MR.  GOLDIE  6  7  8  9  10  11  12  13  14  15  16  THE  COURT:  17  MR.  GOLDIE  18  19  20  21  22  23  24  25  THE  COURT:  26  MR.  GOLDIE  27  28  1  29  THE  COURT:  30  MR.  GOLDIE  31  THE  COURT:  32  MR.  GOLDIE  33  THE  COURT:  34  MR.  GOLDIE  35  THE  COURT:  36  MR.  GOLDIE  37  38  39  40  41  42  43  44  45  46  47  days .  Yes, and in those circumstances.  :  Yes.  All right.  :  Now, that's -- and then there's enclosures talking  about the reservation desirable, that portions be  reserved for naval requirements and things of that  order.  Then at page 79 is Mr. Douglas' despatch of  January 9th, 1860, enclosing a report of Lieutenant  Palmer, who went from Fort Hope to Fort Colville.  And, my lord, if you look at the map on the preceding  page, which is a little difficult to follow, but quite  clearly it's easy to find the mouth of the Fraser and  New Westminster and the route of the Fraser.  Yes.  :  And one can trace it up to Fort Hope.  Now, my  understanding is that Palmer went east from there, and  his route is marked in a solid line, which takes him  across to Osoyoos, and then he dips down into the  United States, and by dips I mean dips down below the  49th parallel, and then comes up to a point which is  indicated by the -- almost a vertical line which runs  between the letters "I" and "L" of Colville.  Yes.  :  That intersection of the boundary and that, I  assume, creek is, I believe, the location of Rock  Creek, which is the site of another gold strike.  Yes.  :  And then --  There is a Colville, Washington.  :  Oh, yes, and that's where Palmer --  It's marked here.  :  Yes, Fort Colville.  Yes.  :  These were -- this was another journey made at the  request of the governor, this time to the commanding  officer of the royal engineers, and his instructions  are given at the bottom of page 79, and he is  instructed as follows:  "You will proceed from New Westminster to Fort  Hope, attach yourself there to a party of  gentlemen in the Hudson's Bay Company's Service  under the command of Mr. Angus McDonald, and  travel with them to Fort Colville.  The object of your mission is to gain 1963?  Reading of Despatches  by Mr. Goldie  1 information on the country lying between Fort  2 Hope and the 49th parallel of latitude, where  3 it meets the route to Fort Colville.  4 To this end you will freely communicate  5 with Mr. McDonald, a gentleman of great  6 information, who has travelled much in this  7 country, and is kindly disposed to assist your  8 inquiries."  9  10 And over the page, about halfway down, there is a  11 paragraph beginning with the words:  12  13 "Describe the Similkameen Valley; its  14 adaptability to settlement; if inhabited by  15 Indians state how they live, and if they have  16 in any way cultivated the soil; is there any  17 building material to be found in the valley; is  18 fuel abundant,"  19  20 etcetera.  21 And then the report follows, beginning on page 80,  22 with the heading Part 1 - Topographical Journal.  I  23 have nothing in there.  24 Page 84 at the paragraph beginning with the words,  25 "We camped this evening on the left bank of the  26 Similkameen..."  That contains a report of the native  27 peoples that he met there, and that continues to the  28 end of the first complete paragraph on page 85.  I  29 needn't read that.  30 THE COURT:  What forks is Vermillion Forks?  31 MR. GOLDIE:  That is at —  32 THE COURT:  "The junction of the two rivers is named 'Vermillion  33 Forks'..."  34 MR. GOLDIE:  I think — looking at the map, my lord —  35 THE COURT:  Oh, it doesn't matter.  36 MR. GOLDIE:  The —  37 THE COURT:  Oh, yes, it's probably the Okanagan River.  38 MR. GOLDIE:  Yes, that's my understanding.  It is the -- I was  39 trying to find where the Similkameen is on this.  I  40 think there's another map that shows the Similkameen,  41 and that I believe will show the junction of the -- or  42 the forks.  43 THE COURT:  Yes.  I camped on the left bank of the Similkameen  44 myself many years ago.  45 MR. GOLDIE:  And then he makes some concluding remarks at page  4 6 88, which I needn't deal with.  47 The despatch on January the 12th, 1860, is a 19639  Reading of Despatches  by Mr. Goldie  1 return -- this is at page 89 -- is a return of imports  2 and customs receipts at New Westminster, and the  3 customs receipts are stated in pound sterling, and the  4 value of imports are stated in both dollars and pound  5 sterling.  The despatch of January the 12th, 1860,  6 starting at page 90, is one that relates to the -- to  7 the proclamation dealing with the acquisition of land  8 in British Columbia, and he starts off by saying, and  9 I'm reading from page 90:  10  11 "In my report on the affairs of the colony of  12 British Columbia, of the number and date noted  13 in the margin,"  14  15 and the number is 224, 18th of October, 1859,  16  17 "I did myself the honour of laying before your  18 Grace a statement of the expense,  19 inconvenience, uncertainty, and delays to which  20 emigrants were exposed in making purchases of  21 land in that colony.  22 I also stated that the Government surveys  23 could not keep pace with the demand for public  24 land, and I might, moreover, have added that  25 the expense of moving surveying parties of the  26 Royal Engineers to the various points where  27 land is required for settlement and cultivation  28 would probably exceed the money value of the  29 land sold.  30 I at the same time informed your Grace that  31 in order to remove so pregnant a cause of  32 complaint, and to facilitate settlement and  33 promote the lawful acquisition of unsurveyed  34 agricultural land, pending the operation of the  35 public surveys, I had authorized the occupation  36 of land to the extent of 160 acres, with a  37 pre-emptive right, by any person immediately  38 occupying and improving such land and agreeing  39 to pay the Government price, not exceeding 10  40 shillings an acre, whenever the land is  41 surveyed and title granted.  42 I now forward herewith a proclamation  43 giving to my previous instructions the force of  44 law, and also providing for the purchase, with  45 the same limitation of the ultimate price, of  46 larger tracts of unsurveyed country land, in  47 addition to the land pre-empted, as may be 19640  Reading of Despatches  by Mr. Goldie  1 desired by persons of larger means; it being in  2 that case also provided, in order to guard  3 against the mere speculative holding of land,  4 that 5 shillings an acre is to be paid down,  5 and the residue at the time of survey.  6 This Act has been reviewed with much  7 anxious consideration, and every precaution has  8 been taken to adapt its machinery to the state  9 of the colony, and to divest it of unnecessary  10 forms, expense, and delay."  11 The district stipendiary magistrates will  12 record the applications for land, and  13 immediately report the same to the Commissioner  14 of Lands and Works and to the Colonial  15 Secretary, so that it will not cause any  16 further drain on the funds of the colony."  17  18 Then at the top of page 91:  19  20 "The Act distinctly reserves, for the benefit of  21 the Crown, all town sites, auriferous land,  22 Indian settlements, and public rights  23 whatsoever; the emigrant will, therefore, on  24 the one hand, enjoy a perfect freedom of choice  25 with respect to unappropriated land, as well as  26 the advantage, which is perhaps of more real  27 importance to him, of being allowed to choose  28 for himself and enter at once into possession  29 of land without expense or delay; while the  30 rights of the Crown are, on the other hand,  31 fully protected, as the land will not be  32 alienated nor title granted until after payment  33 is received."  34  35 Then he goes on to state in paragraph 11:  36  37 "The district magistrates are authorized in all  38 cases of dispute about land to proceed  39 immediately in a summary way to settle  40 boundaries, to restore possession, to abate  41 intrusions, and to levy such costs and damages  42 as they may think fit; a course which I believe  43 will have the happiest effect preventing  44 litigation and private acts of violence; for  45 the redress of grievance and to guard against  46 injustice on the part of the magistrate; an  47 appeal from his decision may be carried to the 19641  Reading of Despatches  by Mr. Goldie  1 Supreme Court of the colony.  2 I have only further to express a hope that  3 the measure may meet with the approval of Her  4 Majesty's Government."  5  6 That -- that -- now, that, my lord, is Calder # 3, so  7 I'm not going to go into the document itself.  It had  8 a long history I may say.  9 Then his of January the 24th, 1860, down at the  10 bottom of page 92, transmitting the report of Mr.  11 Ball, Assistant Gold Commissioner for the district of  12 Lytton, "on the state and prospects of the gold  13 regions of British Columbia, situated in the valley of  14 the Fraser's River and its tributary streams, between  15 Lytton and Quesnel River."  16 And paragraph 4:  17  18 "A detachment of thirty Chinese miners arrived  19 yesterday, being it is supposed the pioneers of  20 a large immigration of that people for British  21 Columbia."  22  23 And Ball's report, first paragraph I'll read and then  24 just a few other references.  25  26 "In compliance with the wish expressed in your  27 letter of the 1st October I have the honour to  2 8 forward you my remarks on the diggings of my  29 own district, and as much information  30 respecting the new discoveries of the upper  31 country in the neighbourhood of Fort  32 Alexandria, as I could gather from those who  33 have lately returned from those parts."  34  35 And then in the paragraph midway down the page  36 beginning with the words:  37  38 "I am happy to inform your Excellency..."  39  40 Halfway through that paragraph he says:  41  42 "The richest discoveries have been made in a  43 creek called Horsefly Creek, situated about 60  44 miles to the east of Fort Alexandria, and  45 running into a lake at the head of one of the  46 branches of the 'Quesnel' River."  47 So your lordship will see that by the winter of 1859 19642  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  Reading of Despatches  by Mr. Goldie  people were beginning to mine in what is known as the  Barkerville district, what became known as Barkerville  I suppose.  And Mr. Ball concludes on page 94, last paragraph:  "From the favourable reports brought down from  above, I am in hopes a large immigration will  ensue as the country needs but population to  develop its resources and richness, and the  nature of the country on the trail from Lytton  to Alexandria will, I hope, be an inducement  for many to settle down as agriculturists."  THE COURT:  I'm sorry, I don't see that.  MR. GOLDIE:  It's on page 94, my lord.  THE COURT:  Oh.  MR. GOLDIE:  The concluding paragraph.  THE COURT:  Yes, thank you.  MR. GOLDIE:  The despatches of January the 24th, January the  25th on page 94 are primarily located -- are primarily  concerned with the establishment of an assay office in  Victoria, which, of course, would enable the miners to  bring their gold dust down.  Page 95 is Douglas responding to Newcastle's  inquiry as to the place of residence of the permanent  officers of the colony and stating in no uncertain  terms that they are to -- with the exception of  Douglas himself, that they are to live in British  Columbia, and Douglas simply says that he agrees with  the principle, but he wanted some of the -- some of  the officers in question with him in Victoria where he  was administering both colonies.  And then at the bottom of page 95 in his despatch  of January 27th, 1860, he encloses a proclamation,  which is Calder # 4, authorizing the sale of or  regulating the sale of public lands.  Well, I should  say amending the regulation.  My lord, that completes the despatches of Douglas  and the papers that were laid before Parliament in  1860.  I don't propose to be very long with the  despatches of the secretary of state, but perhaps that  might be done at another time.  THE COURT:  If that's convenient, yes, all right.  MR. GOLDIE:  Thank you, my lord.  THE COURT:  All right then.  You'll have a witness on Monday  morning, Mr. Goldie?  MR. GOLDIE:  Yes, it will be Dr. Farley, my lord. 19643  Reading of Despatches  by Mr. Goldie  1 THE COURT:  All right.  Well, I wish you all a very pleasant  2 week-end.  Thank you.  3 MR. GOLDIE:  Thank you.  4 THE REGISTRAR:  Order in court.  Court stands adjourned until  5 ten o'clock on Monday.  6  7 (PROCEEDINGS ADJOURNED AT 4:00 P.M.)  8  9 I hereby certify the foregoing to be  10 a true and accurate transcript of the  11 proceedings herein to the best of my  12 skill and ability.  13  14  15    16 Leanna Smith  17 Official Reporter  18 United Reporting Service Ltd.  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


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