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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1989-11-29] British Columbia. Supreme Court Nov 29, 1989

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 23035  R.M. Mclntyre (for Canada)  Cross-exam by Mr. Grant  1 November 29, 1989  2 VANCOUVER, B.C.  3  4 THE REGISTRAR: Order in court.  In the Supreme Court of British  5 Columbia, this 29th day of November, 1989, in the  6 matter of Delgamuukw versus Her Majesty the Queen at  7 bar, my lord.  8 May I remind you, sir, you are still under oath?  9 THE WITNESS:   Yes.  10 THE REGISTRAR:  And would you state your name for the record,  11 please?  12 THE WITNESS:   Rae Manning Mclntyre.  13 THE REGISTRAR: Thank you, sir.  14 THE COURT:  Mr. Grant.  15 MR. GRANT:  16 Q   Thank you, my lord.  Can you turn to tab 13 in your  17 document book, Mr. Mclntyre?  This is your letter to  18 Mr. Cox.  The last line there of your letter is:  19  20 "If you confirm that Mathew Sam did have a  21 trapline, we will include the line in the  22 inventory of estate assets and they will  23 undoubtedly be distributed according to the  24 will of Mathew Sam."  25  26 The statement "we will include the line in the  27 inventory of estate assets", would it be fair to say  28 that that was reflective of the departmental policy  29 with respect to how to deal with registered traplines  30 where you had a will of the holder of the registered  31 trapline?  32 A   Yes.  I interpreted departmental policy according to  33 that, to the way you described.  34 Q   All right.  Now, had you ever heard or are you aware  35 of the term of caretaking among the Carrier people  36 with respect to traplines?  37 A   I -- I don't recall hearing that term.  38 Q   Okay.  What about the term Negadeldus,  39 N-e-g-a-d-e-1-d-u-s?  40 A   No.  No, that word is not familiar to me.  41 Q   Go to tab 14, please.  Mr. Slavens' comment that:  42  43 "According to the wishes of the will of the late  44 Mathew Sam, it would appear that we have no  45 other option than to register this line to Roy  46 Morris."  47 23036  R.M. Mclntyre (for Canada)  Cross-exam by Mr. Grant  1 That was his -- where he says there was no other  2 option, that was based on your conclusion that the  3 registered trapline was part of the estate, wasn't it,  4 when you look at the whole sequence of the  5 correspondence?  6 A   Yes.  7 Q   And he was basically saying in light of your decision  8 what he had to do as far as the transfer of the  9 trapline?  10 A   Yes.  11 Q   And the Fish and Wildlife branch in regard to these  12 matters of Indian estates did -- this was a matter  13 of -- this was a common practise that they would look  14 to you as the departmental official and how you dealt  15 with the estate and then they would register as you  16 directed or suggested the transfer would go ahead?  17 A   Yes.  The Fish and Wildlife branch gave me every  18 indication that they were prepared to respect the  19 wishes of the deceased as may have been expressed in  20 his will.  21 Q   Uh-huh.  And of course the department -- the Minister  22 and yourself as the superintendent could and did give  23 effect to wills that were not wills in the strict form  24 under the provincial legislation?  25 A   I'm not familiar with what you mean by provincial  26 legislation.  27 Q   Well, even if a will did not have two witnesses  28 witnessing it at the same time, for example, you could  29 give effect to an Indian will?  30 A   No.  The wills or the documents that appeared to me as  31 might qualify to be accepted as wills, I was required  32 to forward those documents on to headquarters in  33 Ottawa and they would make the judgment as to the  34 adequacy of that document, and then in turn advise me  35 accordingly.  36 Q   I see.  And in fact when you look at tab 17, Theresa  37 Sam's document, and I think you explained that tab 18  38 you dealt with it as though there was no will, but you  39 attached this document to it and asked your superiors  40 if they would recognize it and that if it was  41 satisfactory that you carried out the intentions on  42 the tab 17 document if I recall your evidence  43 correctly?  44 A   Yes.  45 Q   So this was an example where you weren't sure whether  46 you could deal with tab 17 as a will, but you asked  47 for direction and you were subsequently authorized to 23037  R.M. Mclntyre (for Canada)  Cross-exam by Mr. Grant  1  2  A  3  Q  4  5  6  7  8  9  10  A  11  Q  12  13  A  14  Q  15  16  A  17  Q  18  19  20  21  22  23  24  25  26  A  27  Q  28  A  29  30  Q  31  A  32  33  34  MR. GRANT  35  36  MR. MACAU  37  38  MR. GRANT  39  Q  40  41  42  43  44  45  46  47  A  carry out the intention of tab 17?  That is correct.  And that's I guess what I was leading up to was that  in this situation such as tab 17 where there is a  reference to a trapline, the Fish and Wildlife branch  would defer to you and your department as to whether  they should give effect to that transfer to the  successors or not?  They waited for your probating of  the estate or your recommendation in that regard?  Yes.  Yes.  And that's how it generally worked in your  relationship --  Yes.  -- with Fish and Wildlife when you were dealing with  estates of persons who had registered traplines?  Yes.  Now, regarding tab 18, I just wonder, and I'm not  trying to -- I wonder -- Mrs. Sam refers to her  grandson Wilfred Charlie, and it's hard to read.  I  think there's another name as well.  If you look at  tab 19 it appears from your letter, Mr. Mclntyre, that  in fact the document that is cut off at tab 17  reflected that she's giving her trapline to Wilfred  and Christopher Charlie.  You can't read it on the  document, but you see tab 19?  Yes, I do.  I'm looking back at --  At 17?  -- at 17 and trying to interpret the words that appear  after the name Wilfred Charlie on the second line.  Right.  And I have to conclude in my mind that those words are  Chris Charlie which would be the -- which would relate  to Christopher Charlie.  :   I'm not certain -- my friends may have a cleaner  copy of this.  jAY:  We haven't, my lord.  The original document is in  Ottawa.  Well, if we rely -- if you rely on your March 6th,  1975 letter, that's really how you -- there's no way  that you any more than we can read that I presume, the  Chris Charlie, but when you look at March 6, '75,  assuming that you were accurately looking at the  original of Mrs. Sam's, I won't call it a will, but  Mrs. Sam's declaration of her desires, it appeared  that it was Wilfred and Chris Charlie?  Yes. 2303?  R.M. Mclntyre (for Canada)  Cross-exam by Mr. Grant  1 Q   And you've reflected that this is her -- well, you see  2 she says her grandson individually on the document,  3 Wilfred Charlie.  But my question to you is this:  Can  4 you go to tab 18?  "Theresa Sam has three daughters  5 and one son."  Were Wilfred and Chris children of her  6 daughters' or of her son?  7 A   They were -- they are children of Nancy, Nancy  8 Charlie.  9 Q   Okay.  And Nancy Charlie was Theresa's --  10 A   Daughter.  11 Q   -- daughter?  Her own daughter?  12 A   Yes.  13 Q   Okay.  Now, if you go to tab 20, the middle paragraph  14 is your statement that:  15  16 "The great majority of traplines possessed by  17 Indians in this District are considered special  18 Indian status traplines in that the Provincial  19 Government has agreed that while they may  20 transfer from one Indian to another, they will  21 not be transferred to a non-Indian."  22  23 And that was your understanding of the policy in  24 place?  25 A   Yes.  26 Q   And that policy was a policy that was in place and  27 implemented by Les Cox?  I shouldn't say implemented,  28 Les Cox was one of the persons who executed or carried  29 out that policy?  30 A   I'm not sure that you could restrict that policy only  31 to Mr. Cox.  32 Q   Fair enough, and I'm not suggesting that, and I  33 appreciate your comment, but he was one of the people?  34 A  Well, he was the conservation officer, but there were  35 other conservation officers as well.  36 Q   Such as Mr. Slavens?  37 A  And it was my understanding of that policy that it was  38 universal throughout the area.  39 Q   And when you say universal throughout the area, Mr.  40 Cox was based in Smithers?  41 A   Yes.  42 Q   But you did have some dealings with him as well?  43 A   Yes.  44 Q   Even though you were at Burns Lake?  45 A   Oh, yes.  46 Q   So when you say throughout the area, you mentioned  47 here in your district, which I understand that to 23039  R.M. Mclntyre (for Canada)  Cross-exam by Mr. Grant  1 be -- would be the Burns Lake Agency that you  2 described the other day?  3 A   Yes.  4 Q   But it was equally applicable from the Smithers Fish  5 and Wildlife branch office?  6 A   Oh, yes.  Uh-huh.  7 Q   Did you have many dealings with Mr. Cox?  8 A   No, not a great deal.  The only -- the only occasions  9 when I did have to deal with him were on these -- on  10 these kinds of issues.  11 Q   Do you recall that at the time you -- at least as late  12 as 1975 he was the senior conservation officer for the  13 Smithers area?  14 A   I knew that he was the senior conservation officer.  I  15 don't recall when his career ended.  16 Q   Did you -- oh, let me ask you this:  Did the Fish and  17 Wildlife branch office that you dealt with at the  18 Burns Lake district, was that the one based in  19 Smithers or was there a separate one at that time?  20 A   There was a sub-office in Burns Lake, I believe it was  21 called a sub-office in Burns Lake.  22 Q   Okay.  But the head office was Smithers that  23 supervised the Burns Lake office?  24 A   I believe so.  There seemed to be a -- well, at least  25 a duplication of records.  26 Q   Okay.  27 A   In the Smither's office.  28 Q   Can you go to tab 23?  Now, Frank Tibbett I believe  29 you said was the chief councillor at Burns Lake?  30 A   Yes.  31 Q   Is that right?  32 A   Yes.  33 Q   And this is a will on your form that, based on your  34 evidence, I understand this indicates that either you  35 or somebody working under you would have assisted by  36 preparing the will on your form when Mr. Tibbett came  37 in the office?  38 A   Yes.  39 Q   That would have been the practise?  4 0 A   Uh-huh.  41 Q   Okay.  If you can just be sure to say yes or no for  42 the record, Mr. Mclntyre?  43 A   Yes.  44 Q   Do you know if Mr. Tibbett — that Mr. Tibbett was a  45 Stellaquo Indian originally?  4 6 A   I have no knowledge in that regard.  47 Q   Okay.  Was Stellaquo within your district? 23040  R.M. Mclntyre (for Canada)  Cross-exam by Mr. Grant  1 A   No.  2 Q   Stellaquo was within the Stuart Lake agency?  3 A   Yes.  4 Q   And you understand that Stellaquo, the Stellaquo  5 Indian people, were different than those at Lake  6 Babine for example?  7 A   Yes.  8 Q   Okay.  Now, do you remember if you were the one that  9 took down Mr. Tibbett's instructions on this will or  10 could it have been somebody working under you?  11 A   I seem to recall doing this --  12 Q   Okay.  13 A   -- bit of work myself.  14 Q   Now, first of all, you would agree with me that a  15 person, under the Indian Act, a person could not pass  16 on the position of a chief councillor in a will, that  17 wouldn't be something that the Indian Act would have  18 recognized, you would agree with that?  19 A   Under the Indian Act, yes.  20 Q   But Mr. Tibbett said that "She", referring to his  21 wife, "should act as band chief until such time as she  22 feels one of my sons or daughter are capable and  23 worthy of assuming this responsibility."  24 And the first part of that is that:  25  26 "I desire that my hereditary chieftainship of  27 the Burns Lake Band should pass on my demise to  28 my wife Ruth Tibbett."  29  30 Do you have any idea what Mr. Tibbett was talking  31 about when he referred to his hereditary chieftainship  32 and when he referred to band chief?  What was he  33 suggesting that would be passed on?  34 A   His hereditary chieftainship is what I interpreted his  35 desires to be and --  36 Q   Do you know what he was talking about?  What was that?  37 A   His -- his beliefs that he had a right to be the chief  38 of his band.  39 Q   Of the Burns Lake Band?  4 0 A   Right.  41 Q   I think it was Burns Lake?  42 A   Yes.  43 Q   Do you recall if you discussed or got clarification  44 with him what he was talking about at the time of  45 this?  46 A   No, those were the instructions that he gave me in  47 regard to his wishes and I felt that I owed it to him, 23041  R.M. Mclntyre (for Canada)  Cross-exam by Mr. Grant  1 since he had asked for my instructions, to put the  2 words down exactly as he told me to.  3 Q   Okay.  So, in other words, you put down -- what you  4 did was transcribe his words, but you didn't seek  5 further explanation of what he was referring to;  6 that's a fair way of saying it?  7 A   No, and he chose not to offer me any further  8 explanation and I -- I was simply conveying his  9 instructions on paper to the best of my ability.  10 Q   Were you involved in the administration of this will  11 later?  And there is no other documents in this book  12 about it.  13 A   I don't remember.  14 Q   Okay.  From your experience did you -- did you  15 administer any will with that kind of description of  16 the passage of band chief or the passage of hereditary  17 chieftainship?  18 A   That is the only will that I ever came into contact  19 with with that kind of instruction.  20 Q   Okay.  If you were dealing with the administration of  21 that will in Indian Affairs, how would you have  22 carried out that kind of an instruction?  What would  23 you have done or is it something that hasn't crossed  24 your mind?  25 A   It hasn't crossed my mind.  It's not something I have  26 had to deal with.  27 Q   You don't —  28 A   I would be speculating now.  29 Q   It's not something that would be in the normal form  30 that you would deal with?  If I asked you generally  31 how would you deal with a registered trapline  32 reflected, you could tell me because you've dealt with  33 them, right, but in this situation you've never really  34 come across it so you really wouldn't now how you  35 would handle it or if you would do anything, is that  36 fair?  37 A   That is correct.  38 Q   Okay.  39 Q   But if I just can be clear on this, Mr. Mclntyre, you  40 would agree with me that if he was referring to the  41 chief councillor's position of the Burns Lake Band,  42 you as -- and you had to deal with that type of an  43 instruction in his will, there would be no way that  44 you, as a superintendent of the agency, could  45 implement his wishes that the position of chief  46 councillor of the band pass to his wife?  You couldn't  47 do that? 23042  R.M. Mclntyre (for Canada)  Cross-exam by Mr. Grant  1 A   No.  I think though that the prudent thing to do might  2 be to remind the surviving members of the band of the  3 contents of the will.  4 Q   The surviving members of the band or the family?  5 A   Of the band and the family.  6 Q   Okay.  7 A   You know, obviously the family.  8 Q   And then leave it up to them?  9 A   Then leave it up to them to decide as to the future  10 leadership of the band.  11 Q   Right.  Now, if he was talking here, because these  12 terms are not very clear and that's why I've used both  13 of them, but if he was talking about a hereditary  14 name, that is, a name that was passed to him, rather  15 than the chief councillorship, I presume that your  16 answer would be the same, that you would not be able  17 to implement that as the superintendent of the agency,  18 you would agree with that, because you felt that that  19 was a matter that Indian people basically dealt with  20 themselves?  21 A   Yes.  Uh-huh.  22 Q   But what you would do is, as you've just described for  23 the chief councillor, is you would say here is what  24 this man has written, and you would provide that  25 information to the other members of the band and of  26 the community and say "You deal with this."; would  27 that be fair to say?  28 A   Yes.  29 Q   Would it be correct to say as well that from this  30 example here that you would -- that if -- when a --  31 your practise was, and those under you, that if an  32 Indian person came in and said "I want a will.", and  33 they said something like this or anything, you would  34 record it because that -- your primary obligation you  35 felt was to record what they told you they wanted in  36 their will; is that right?  37 A   Yes.  38 Q   And you would do that whether you -- without critique  39 or without comment on what they were trying to do?  4 0 A   I think I would owe that to them, yes.  41 Q   Okay.  I take it that it probably goes without saying  42 that this type of paragraph here would not be what you  43 would call as dealing with substantial assets?  I'm  44 just talking about this paragraph.  I mean, that is  45 that it's not something that would -- if you -- if you  46 were asked about it by someone that this is all they  47 were interested in, they wouldn't -- but they weren't 23043  R.M. Mclntyre (for Canada)  Cross-exam by Mr. Grant  1 really seeking a will, it's not a -- you wouldn't use  2 that as a basis to encourage people to make a will?  3 It wouldn't come in with your substantial assets that  4 you've referred to?  Have I confused you?  5 A   Yes, a little bit.  6 Q   Okay.  Let me go back.  Yesterday and the other day  7 what you said is that as the superintendent if you  8 were aware that an Indian person had substantial  9 assets --  10 A   Yes.  11 Q   -- that you would encourage them to make a will.  And  12 you described yesterday, when I asked you what you  13 meant, I think you said a car or a boat, bank  14 accounts, things that are standard, usually dealt with  15 by non-Indian people in wills, but what I'm saying is  16 is that if you learned that a particular Indian person  17 in your agency all he held was a hereditary chief's  18 name, and there was no other substantial assets, I  19 think you've answered me yesterday on this, you  2 0 wouldn't view that as something that you would  21 encourage him to make a will about?  22 A   I would have no knowledge of his possession of  23 anything of that nature, so I could only -- you know,  24 I could only work with what I was aware of.  25 Q   Right.  Okay.  Mr. Macaulay referred you to certain  26 terms you used in a proposal which has been excluded,  27 but the terms that he referred you to were the terms  28 trapper, landlord trapper, and part-time trapper, and  29 my only question to you is is it fair to say that what  30 you were talking about was a model, that is, you  31 weren't thinking of any individual -- when you were  32 writing up that you weren't thinking of an individual  33 landlord trapper or part-time trapper or full-time  34 trapper, you were setting up a model for the purposes  35 of your proposal?  36 A   Yes.  37 Q   And you would agree with me that a person -- and I  38 think you've -- in some of the documents there are  39 people who have leased or rented their traplines that  40 you dealt with?  41 A   Yes.  42 Q   That person, even during the time you were in office,  43 may at some time be a full-time trapper himself on the  44 line and could be a part-time trapper on the line, and  45 also some other time could rent it out?  46 A   Yes, of course.  47 Q   And that kind of experience you've had, so that it's 23044  R.M. Mclntyre (for Canada)  Cross-exam by Mr. Grant  1 not that people were one or the other necessarily?  2 A  Well, they could be a landlord trapper this year and a  3 full-time trapper next year.  I accept that.  4 Q   Right.  Now, and you were asked by Mr. Macaulay about  5 the residential schools and impact of residential  6 schools, mandatory enrolment on trapping, residential  7 schools -- there were residential schools in your  8 agency, were there not, or were they in the Stuart  9 Lake agency?  10 A   They were in the Stuart Lake agency.  11 Q   And that was Le Jacque?  12 A   Yes, one school.  13 Q   That was the only one?  14 A   That was the only one in the Stuart Lake agency.  15 Q   Yes.  Okay.  And the residential schools and children  16 going to residential schools was going on before --  17 from Burns Lake agency, was occurring before you  18 arrived?  19 A   Yes.  20 Q   And subsequent to your departure?  21 A   Yes.  22 Q   And subsequent to your -- no, you worked in -- I think  23 you worked in Prince George with the department from  24 197 --  25 A   The residential school at Le Jacque closed at some  26 point in time of my career there.  I don't recall the  27 year.  28 Q   Okay.  But would you not agree with me that if there  29 was a family of trappers and their children that in a  30 way the residential school was an encouragement in the  31 sense that their children could be sent to school and  32 they could continue the trapping life?  33 A   Yes, they could.  34 Q   And that was different than the situation of a day  35 school where the day school in the community, whether  36 it be Burns Lake or even at Fort Babine, that they  37 would have to stay in the community of course if the  38 children were just going to day school?  39 A   Yes.  Uh-huh.  40 Q   Okay.  Now, can you go to tab 27?  Isaac Sam.  Do you  41 know that Isaac Sam was a Stellaquo Indian?  42 A   No, I don't know that.  43 Q   Okay.  And once again this -- your experience would be  44 with him, as with the other people in your agency,  45 would be the band to which they belong as a member,  4 6 and that's how you would connect to them?  47 A   Yes. 23045  R.M. Mclntyre (for Canada)  Cross-exam by Mr. Grant  1 Q   But you, I take it, from what you've said, that you do  2 agree with me that just because a person's a member of  3 one band doesn't mean that their family or their  4 origins are not an entirely different group?  5 A   Oh, yes.  I understand that situation could occur.  6 Q   And you probably, even with your experience, saw  7 situations where that did occur?  8 A   Yes.  9 Q   Where, for example, a wife would move to her husband's  10 village or a husband move to his wife's village?  11 A   Yes.  12 Q   Okay.  If we could go to -- just a moment.  So, for  13 example, a person like Bear Lake Charlie, if I could  14 take him as an example, remember Nicolas Charlie that  15 you talked about?  16 A   Yes.  17 Q   And you described that Nicolas Charlie was known as  18 Bear Lake Charlie, had a long illustrious history that  19 was recorded in part in Driftwood Valley?  20 A   Yes.  21 Q   And the fact that Bear Lake Charlie was from Fort  22 Babine, you would agree with me that that tells you  23 nothing about whether Bear Lake Charlie was a Fort  24 Babine Indian, that is, from that ancestral group, a  25 Wet'suwet'en, that is, the group that related around  26 Moricetown and Hagwilget, a Gitksan, who you now know  27 who I'm referring to, or an eastern Carrier, which has  28 been called in this case a Nutsone, N-u-t-s-o-n-e, an  29 eastern Carrier I'm talking about in Burns Lake and  30 further east.  You couldn't tell from where he lived  31 or what band he belonged to which of those groups he  32 belonged to; you would agree with that?  33 A   No.  My earliest knowledge of the origins of Charlie  34 Nicolas was that he was a member of the Fort Connolly  35 Band, which the members of which tended to live in the  36 upper -- in the upper tributary areas of the Driftwood  37 Valley.  38 Q   Right.  But that's, again, your connection to him is  39 through what his band was?  40 A   Yes.  41 Q   And as far as what tribal group he belonged to, you  42 couldn't comment?  43 A   No.  44 Q   And you would agree with me that band membership does  45 not necessarily parallel tribal group?  46 A   That is correct.  47 * Q   Now, if you went to tab -- I think this actually is 23046  R.M. Mclntyre (for Canada)  Cross-exam by Mr. Grant  1 relating to this.  I just want to go to tab 34,  2 please, and here you talk about Joy Isaac Augustive  3 Stellaquo, and my only question here is would you  4 agree with me that the Stellaquo Indians, in terms of  5 the dealings and the relationship between the  6 Stellaquo Indians and the, for example, the Babine  7 Indians, if I may say, that they were -- you knew they  8 were different groups, different tribal groups,  9 generally?  10 A   Slightly different would be the way I would describe  11 it were you to ask me, yes.  12 Q   They could understand each other in language, that's  13 why you say slightly different, right?  14 A   Uh-huh.  15 Q   Because they could speak the similar language, but  16 there was differences between those tribal groups?  17 A   Oh, yes.  18 Q   Okay.  Now, a large part of your evidence or -- comes  19 in after you left the department and you worked for  2 0 special ARDA.  Now, you worked for ARDA —  21 A   Yes.  22 Q   -- and Special ARDA.  ARDA was a programme of funding  23 for small projects; is that right?  24 A   Yes.  25 Q   And Special ARDA, the difference was it was the same  26 programme for Indian people?  27 A   Yes.  28 Q   Right.  Now, Mr. Macaulay has introduced through you  29 extracts from your files and files of the department  30 in which you've dealt with Gitksan and Wet'suwet'en  31 people.  And Eddie Morris, the first one, is an  32 example of a Wet'suwet'en person from Moricetown, in  33 terms of their -- you've dealt with these people in  34 terms pf applications for funding to prove their  35 access to trapping grounds; is that right?  36 A   Yes.  And for equipment to use thereon.  37 Q   Yes.  I meant that in part.  38 A   Okay.  39 Q   For example, I think there's snow-mobiles and there's  40 building supplies, this kind of thing?  41 A   Right.  42 Q   Why -- what was your understanding as to why that  43 programme was initiated with respect to trapping  44 grounds, Indian trapping grounds?  45 A   To make it possible for Indian people to obtain -- to  46 obtain increased sources of income from the fur  47 resource that they could exploit from within their 23047  R.M. Mclntyre (for Canada)  Cross-exam by Mr. Grant  1 traplines.  2 Q   And you, as the programme officer regarding this  3 region, you encouraged people to apply I take it from  4 looking at the files?  5 A   No, we didn't really go out and encourage them, we  6 made -- we made information about the programme  7 available to them and, you know, I don't -- I don't  8 see that as encouragement.  We didn't go out and  9 solicit applications, if that's what you're alluding  10 to.  11 Q   No, and I take it your point, Mr. Mclntyre -- I wasn't  12 suggesting it that way.  What I was suggesting was  13 that you, through brochures and through publicity, you  14 encouraged that -- people to know about this  15 programme?  16 A   Yes, that is correct.  17 Q   And you wanted -- I mean, the point of the programme  18 was that people would apply?  19 A   Yes.  20 Q   I mean, that's what I mean, and the reason that you  21 were hired was to deal with the applications?  22 A   Yes.  23 Q   Okay.  And you interviewed people, you interviewed the  24 applicants, in fact, you were hands-on in the early  25 phases -- or I don't know if you still do that.  Do  26 you still do that?  27 A   No, the programme is ended now.  28 Q   Right.  But up until the end of it did you do that?  29 A   Yes.  30 Q   So you had a hands-on approach in the sense that you  31 interviewed people who were making applications?  32 A   Yes.  33 Q   Did you -- when you discussed this with Indian people,  34 you were aware that with the Gitksan and Wet'suwet'en  35 that, partway through your work on it, that this  36 litigation had commenced?  37 A   Yes.  38 Q   And you were knowledgeable about this?  39 A   Somewhat, yes.  40 Q   To the extent that you knew that the Gitksan and  41 Wet'suwet'en were claiming --  42 A   Yes.  43 Q   -- against the province, and the federal crown was a  44 party?  45 A   Yes.  46 Q   Did you advise or suggest to any of the people you  47 dealt with that their making an application could 23048  R.M. Mclntyre (for Canada)  Cross-exam by Mr. Grant  1  2  A  3  Q  4  5  A  6  Q  7  8  9  10  A  11  12  13  14  Q  15  16  17  A  18  Q  19  20  21  22  23  A  24  25  26  27  28  29  30  31  Q  32  A  33  Q  34  35  36  A  37  38  39  Q  40  41  42  43  A  44  MR. GRANT  45  THE COURT  46  THE WITNE  47  THE COURT  jeopardize any rights that they had?  No.  Did you believe that it could jeopardize any rights  they could have?  I never really thought about it.  Did you see a connection between people applying for  funding to improve their trapping ability, did you see  a connection between what they were doing with you,  and their claim, their aboriginal rights claim?  No, I didn't feel it was my prerogative to make that  kind of a judgment, and it was my job to deal with  applications, and I really hope that I confined my  relationship to my clients in that regard.  And when you refer to your clients, you're referring  to people of course like Eddie Morris, like David  Blackwater, Jeff Harris senior?  Right.  Now, on tab 39 -- just a moment.  There's a reference  to Mr. Morris about his trapping grounds at the north  end of Whitesail Lake.  And from your experience you  knew where that was?  You knew where Whitesail Lake  was?  I recall comparing his trapline map with a larger  scale map to obtain a clearer understanding in my mind  of the geographical location and the geographical  characteristics of his trapline and the access  possibilities that he would have to it.  I also  examined topographical maps to attempt to get an  opinion in my own mind as to the likely amount of fur  habitat that was in the line.  Okay.  But you knew roughly where Whitesail Lake was?  Oh, yes.  And you weren't surprised at all that this person from  Moricetown had a trapping ground as far from  Moricetown as Whitesail Lake?  No.  It wasn't a question of being surprised or  unsurprised.  He provided me with a map and I accepted  it for what it was.  All right.  Okay.  And you didn't -- can you go to tab  41?  Did you inquire as to the name Luus, Jeffery Luus  Harris?  Did you inquire as to what that name derived  from?  No.  :   Okay.  :  What does ARDA stand for?  What does ARDA stand for?  3S:   Agricultural Rural Development Act.  :  Thank you. 23049  R.M. Mclntyre (for Canada)  Cross-exam by Mr. Grant  1  ]  MR. GRANT  2  Q  3  4  A  5  Q  6  7  8  9  10  11  12  13  14  15  A  16  Q  17  A  18  Q  19  20  21  22  23  A  24  Q  25  A  26  Q  27  28  29  30  31  32  33  34  A  35  36  37  Q  38  39  A  40  Q  41  A  42  Q  43  44  45  46  47  So you didn't know that that was Mr. Harris' chief's  name, Luus?  It never occurred to me.  Okay.  I just have to make a connection with some  documents that my friend provided me with, my lord. I  just want to make sure it's not in so I don't -- Mr.  Wolf provided me this morning with your ARDA files and  which from which these came out of, and I'm looking at  the Nihst trapping file.  I understand this is a  photocopy of your actual file, okay.  And you refer to  notes, the second letter in, the second document in  the file is the note that actually was appended and I  think it's at tab 40.  My interview notes.  Your interview notes.  That's right.  Uh-huh.  Now, and I don't need to ask you about that at the  moment, but the next document in is a letter dated May  13th, 1985, signed by David Blackwater, and it's typed  up.  Was this typed up by your office as a result of  the interview?  No, it wasn't.  It was sent to you?  It was sent to me.  Right.  Okay.  He states that:  "Dave Blackwater senior is now 55 years old and  has trapped ever since he was a child.  Lifetime experience."  And is that consistent with what you were informed  of from him at the interview?  Well, as to his lifetime experience I was satisfied  that he had trapped recently and that was suffer for  my purposes.  Right.  But you took this -- you had no reason to  dispute his statement in this letter --  No.  -- of lifetime experience?  No.  And then the third point was that -- now, this is in  point form and I think it's in response to your  standard form questions that you send that we saw  yesterday.  He says:  "I have caught 24 martens and nothing else 23050  R.M. Mclntyre (for Canada)  Cross-exam by Mr. Grant  1 because the only traps I have are Conibear  2 traps."  3  4 That's capital C-o-n-i-b-e-a-r.  5 A   Uh-huh.  6 Q   Those are -- Conibear, are they leg-hold?  7 A   No.  8 Q   Okay.  They're the non-leg-hold traps?  9 A   Non-leg-hold traps.  10 Q   All right.  So again you were satisfied that he had  11 caught 24 martens at that time?  12 A   Yes.  13 Q   And in the interview at tab 40 you said that he  14 advised you that his self and his son David junior  15 were the main trappers, and I take it that that -- you  16 accepted that?  17 A   Yes.  18 Q   Now, in another file it appears that you combined a  19 series of files into the Dan Michell file, and this  20 realted to Moricetown; do you remember that?  21 A   Yes.  22 Q   And there was a number of applications at once  23 relating to traplines and you combined them in one  24 file, and one of the files or -- this is all in the  25 Dan Michell file.  But on July 5th, 1985, Clarence  26 Dennis wrote to you, and it appears again that he's  27 answering your questions.  His answers are -- seem to  2 8 be in the same form?  2 9 A   Yes.  Uh-huh.  30 Q   And that would have been as a result of your letter  31 going to him after you received his initial request?  32 A   Yes, undoubtedly.  33 Q   And there in number 3 under July 5th, '85, he says:  34  35 "The past trapping season we caught 30 martens,  36 6 weasels, 4 beavers.  Furs were sold to the  37 Hudson's Bay Company in Hazelton, and some to  38 Charlie Bunn", B-u-n-n, "of Smithers B.C.."  39  40 And you had no reason to differ with that?  41 A   No.  42 Q   On the same file but it's on a different application  43 Peter Jim writes on point 3 on July 8th, 1985:  44  45 "In the past year I sold 10 martens and 7  46 beavers to the Hudson's Bay Company in  47 Hazelton." 23051  R.M. Mclntyre (for Canada)  Cross-exam by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  And, again, you have no reason to differ with  that?  A   No.  MR. GRANT:   Now, on one of the other files relating to Robert  Jackson there is a letter addressed to yourself from  Ken Muldoe with a copy attached of a letter to Tony  Brummet, and this was a rejection of a $10 fee  requested by the provincial government.  Do you recall  receiving this letter on or about that time?  MR. PLANT: My lord, it's not a matter of much importance, but  it's not really a letter from Ken Muldoe.  It's a  letter from Ken Muldoe as treasurer of the  Gitksan-Wet'suwet'en Tribal Council.  I see that.  THE  MR.  MR.  THE  THE  COURT:  GRANT:  Q  A  Q  A  Q  A  Q  A  Q  A  Q  Yes.  I appreciate my friend's comment.  I think, yes,  it would properly be a letter from the  Gitksan-Wet'suwet'en Tribal Council association  addressed to yourself at Special ARDA, and attached to  that is a letter that he refers to the attachment to  Tony Brummet.  You recall -- well, I asked if you  recall receiving it?  Well, I don't recall receiving it, but obviously it  was received because our office date stamp of May the  10th, 1984 is thereon.  Yes.  And it came out of your file?  Right.  But let me ask you this:  You recall that there was a  dispute about the payment of these $10 fees in terms  of the -- to get location permits?  That letter certainly conveys the existence of a  dispute.  Okay.  But I don't recall it.  Okay.  What my question is, is that you didn't insist  on that payment for your purposes at Special ARDA?  No.  And you basically left that dispute alone and went on  with your applications; is that right?  A   Uh-huh.  GRANT:   Possibly that letter could be marked as the next  exhibit, my lord?  It was in a very thick stapled  group and that's why it's --  COURT: All right.  What's the next number?  REGISTRAR: 1234, my lord. 23052  R.M. Mclntyre (for Canada)  Cross-exam by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  (EXHIBIT 1234: Letter dated May 2, 1989 w/encl. re  payment of $10.00 fee)  MR. GRANT:  And I would label it as — for the record as the  letter from Mr. -- from the Gitksan-Wet'suwet'en  Tribal Council of May 2nd, 1984, to Mr. Mclntyre,  regarding the protest over the fee for location sites  for trapping counts.  Is the enclosure part of the exhibit?  MR.  MR.  PLANT  GRANT  Q  MR.  Oh, yes, I was -- intended that the enclosure would be  part of the exhibit.  It would be with the attached  letter to Tony Brummet which is dated January 13th,  1984, yes.  Now, one of the files that you dealt with was with  respect to Robert Jackson; do you remember that?  A   Yes.  Q   And what I'm just showing you is a form of application  which I have edited to the relevant portions, as we  have discussed yesterday, and you did interview Mr.  Jackson and had dealings with him --  A   Yes.  Q   -- with regard to this application, didn't you?  A   Yes.  Q   And you recognize this as one of the documents that  you'd received?  A   Yes.  GRANT:   Okay.  Now, my lord, there's a series from this  file so maybe this could be Exhibit 1235, capital A?  (EXHIBIT 1235A: ARDA Application - Robert Jackson Sr.)  I'm sorry, you say there is a --  I'm going to come to some others that come out of the  file and the same file, and then at least they're  grouped together.  I'm showing you now a letter, two  letters, one dated June 21st, '83, and the other May  25th, '84, from Mr. Jackson to yourself that came out  of your files?  You've had a chance to look at them?  A   Yes.  Q   The letter, the first letter of June 21st, '83, this  came out of the same file as the application.  In this  letter Mr. Jackson reports that he trapped "50 marten,  2 wolverine, 2 otter, and 24 beaver", and this would  have been in the year immediately preceding June 21st  of '83.  And this was one of the things you requested  THE COURT:  MR. GRANT:  Q 23053  R.M. Mclntyre (for Canada)  Cross-exam by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  A  Q  A  Q  MR.  A  Q  A  GRANT  THE COURT  MR. GRANT  THE COURT  when you were dealing with these applications, that  people advise you as to what they were doing?  This was a -- this was, yes, a condition of our offer  to them.  Okay.  So that it was a requirement?  Yes.  Now, if you'd just turn it over, you see that in May  of '84 Mr. Jackson refers to a trapping season of  where he caught in 1983/84, "70 marten, 50 squirrel,  30 weasels, 1 fisher, and 1 wolverine" and, again,  with respect to both of these comments as to his catch  was -- you were with -- you accepted that?  Oh, yes.  And he also says these furs were caught in the  Kisgagas region of his trapline.  His trapline was  one -- his trapping grounds were ones that went out  from Kisgagas to the north; is that right?  I believe so, yes.  I'd ask if the June 21st, '83 letter could be  marked as Exhibit 1235 B.  Yes, 1235.  I'm sorry, my lord, 1235 B.  Yes.  (EXHIBIT 1235 B: Letter dated June 21, 1983, re  trapline catch 1982-83)  MR. GRANT:  And the May 25th, '84, could be Exhibit 1235 C.  THE COURT:  Yes.  (EXHIBIT 1235 C: Letter dated May 25, 1984, re  trapline catch 1983-84)  MR. GRANT:  Q   And I have one more document to show you out of this  file, a statement of October 23rd, 1979, from a number  of chiefs.  It says:  "We, the undersigned, recognize that Robert  Jackson Sr. is Gul Sip Duip Haat" G-u-1 S-i-p  D-u-i-p H-a-a-t, "and that we were in  attendance and witnessed a 'feast' at Kispiox,  B.C., held on behalf of the late Miriam Russell  of Glen Vowell at which Alice Jeffery received  the name of Malulek;" M-a-1-u-l-e-k, "and also,  at which time Gul Sip Duip Haat was declared  and recognized to have title to and the right 23054  R.M. Mclntyre (for Canada)  Cross-exam by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  to use the trapping and hunting grounds herein  described to be located at:  55 degrees 30  minutes north and 126 degrees 40 minutes west".  Signed by Thomas Danes, Arthur Kusick, Stephen  Robinson, Jessie Sterritt, and Joshua Campbell.  This  was one of the documents you got at the time of the  initial application?  A   Yes.  Q   And was it one of the documents that you utilized in  terms of -- that this was -- he was the person that  was entitled to be trapping in that area?  A   Yes.  Q   And do you know by this time, that is 1979, you were  aware of what these chiefs were referring to as a  feast?  I'm not saying '79, I should say '82 when you  got the document.  A   This was one of my first encounters with the word  feast.  Q   Yes.  As opposed to potlatch?  A   Yes.  MR. GRANT:  I'd ask that that be Exhibit 1235 D, my lord.  THE COURT:   Yes.  THE REGISTRAR: Is the ARDA application 1235 A?  MR. GRANT:  Yes.  THE COURT:  Yes.  THE REGISTRAR: Thank you.  (EXHIBIT 1235 D:  Letter dated October 23, 1979, re  Jackson trapping grounds)  MR.  GRANT:  Q  A  Q  A  Q  A  Can you go to tab 47, Mr. Mclntyre, please?  This  relates to the Doris Morrison application in October  of '85 and I take it then by this time you would have  had dealings with the Gitksan people for about three  years at least from the time you were with Special  ARDA?  Yes.  Am I correct in my assumption that you didn't work  with the Gitksan people while you were with the  department, even up to 1982 when you were based in  Prince George; that's a correct assumption?  That is correct.  Okay.  Did you determine the -- why the name given to  the project was Liginilah, L-i-g-i-n-i-1-a-h?  No, I did not question the names given to Special ARDA 23055  R.M. Mclntyre (for Canada)  Cross-exam by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR. GRANT  THE  MR.  COURT  GRANT  THE COURT  MR.  THE  MR.  THE  projects by anybody.  My lord, I had not -- there's a couple of files I  had not looked at that my friends delivered to me this  morning, and we had intended both of us to have them  delivered last night.  There was a bit of a mix-up.  I  wonder if I could have a few moments.  I'm almost, if  not completely, finished.  Yes.  And I'm not sure if that would mean you would want  us to stop until 11:30.  Well, I have a meeting, I'll see if I can move it  ahead, but it's with judges who are sitting and they  would be adjourning at 11:15, so it may be that I'll  have to come back at 11:30.  Miss Thomson can call me  and I'll come back as quickly as I can.  I need about 15 minutes, so I will be --  All right.  I think we better make it 11:30 then.  That's fine, my lord.  REGISTRAR: Order in court.  Court stands adjourned for a  short recess.  (PROCEEDINGS ADJOURNED FOR THE MORNING RECESS)  I hereby certify the foregoing to  be a true and accurate transcript  of the proceedings herein to the  best of my skill and ability.  Tanita S. French  Official Reporter  GRANT  COURT  GRANT 23056  R.M. Mclntyre (for Canada)  Cross-exam by Mr. Grant  1 (PROCEEDINGS RESUMED AT 11:30)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Mr. Grant.  5 MR. GRANT:  6 Q   Thank you, my lord.  You had moved over to Special  7 Arda by 1986, but you were still a federal government  8 employee at that time, right?  9 A   Yes.  10 Q   And while you worked with the Department of Indian  11 Affairs, you were knowledgeable about the position of  12 the Minister of Indian and Northern Affairs while you  13 were there relating to the question of aboriginal  14 rights in British Columbia, the policy?  15 A   Oh, in very -- you know, in very general terms, and  16 certainly not to any detailed extent at all.  17 Q   You were aware of the creation of the office of the  18 Indian Land Claims?  19 A   Yes.  20 Q   You were aware of the policy of accepting for  21 negotiation claims by Indian people in British  22 Columbia where treaties had not been settled, you were  23 aware of that?  24 A   I was aware of that, yes.  25 Q   And in fact, I take it that some of those claims were  26 tendered from your agency.  That would be -- what I'm  27 talking about here would be in the period of time when  28 you were in Prince George working with the amalgamated  29 Stewart Lake Agency?  30 A   I don't recall the details of any claims that had  31 actually been submitted, but I know that there were --  32 that there was discussion that I overheard about the  33 possibility at least of claims being submitted, but I  34 don't recall the specific submission of any particular  35 claim.  36 Q   Okay.  You're aware that David Crombie became the  37 Minister of Indian and Northern Affairs in around  38 1984?  39 A   His name as Minister of Indian Affairs I recollect.  I  40 don't recall the time.  41 Q   Okay.  Can you turn to the second page of this letter  42 of March 5th, 1986 to which I've referred you, and in  43 this letter Mr. Crombie is writing to the Ministers  44 Advisory Council of the provincial government with  45 respect to Indian fishing rights in B.C. and the  46 passage of Indian by-laws.  And he states at the top  47 of page 2, and I'm just going to read the first part 23057  R.M. Mclntyre (for Canada)  Cross-exam by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  so that you can follow what he's referring to:  "B.C. Indians view the right to fish the waters of  B.C., as the ancestors have done for generations,  as a basic aboriginal right."  Now, my question to you, Mr. Mclntyre, is that  consistent with your understanding of what the Indian  people in your agency understood in terms of their  rights to fish in the rivers and lakes in that area?  A   Yes.  MR. GRANT:  Yes.  And:  "This right is likely part of the 'existing  aboriginal and treaty rights' affirmed and  recognized by the Constitution Act, 1982."  And then:  "Although the exact nature and extent of aboriginal  fishing rights has not yet been fully defined  there is little doubt that a right exists."  Now, my question to you is with respect to that last  sentence I have read.  Is that consistent with what  your understanding of the federal policy, that the  policy of the Minister of Indian and Northern Affairs  was at the time you were working.  MACAULAY:  I have to object to that, my lord.  That's really  a way of asking the witness for his understanding of a  legal proposition.  I'm not asking about the second sentence, I'm not  asking for the second sentence, I'm asking about the  third.  "Although the exact nature"?  "Although the exact nature" -- "there's little doubt  that a right exists".  I'm not asking that as a  proposition of law, of course, I'm asking for it as a  question of policy.  But it may have been stated as of a date when this  witness was no longer an official in the Department of  Indian and Northern Affairs, nor for that matter would  he have anything to do, so far as my recollection of  his evidence is concerned, with Indian fisheries at  all.  THE COURT:  Well, Mr. Grant, the letter is admissible against  the Crown, Federal Crown.  Can he add to that?  MR.  MR. GRANT  THE COURT  MR. GRANT  MR. PLANT 2305?  R.M. Mclntyre (for Canada)  Cross-exam by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR. GRANT  THE  MR.  COURT  GRANT  MR.  THE  MR.  THE  MR.  THE  PLANT  COURT  GRANT  COURT  GRANT  COURT  Somebody -- is it Mr. Crombie's letter? He has said  that there is little doubt that a right exists. Can  the witness go beyond that?  All I'm asking is that at the time that the witness  was -- was this his understanding of the policy.  This  letter is dated March of '86, was it his understanding  of the policy of the federal government while he was  in the Ministry, which predates the date of this  letter.  That's the only point I'm raising with  respect to that part of it in which he can go beyond  in that respect, I suppose.  When you say "policy", do you mean some written  directive, or do you mean some general understanding?  General policy, written, oral, in any form in which  this witness certainly knew all about the policies of  the department.  He was Superintendent of the  Burns Lake agency, and if there were any dealings with  respect to this, this witness would have some  knowledge of them.  The reports indicate he was  involved in training, he was certainly knowledgeable  over the course of 30 -- a 30-year period.  I'm  surprised that Mr. Plant is objecting, because I  thought this is something Mr. Plant would relish where  he would have a difference the Province would be able  to utilize against the Federal Crown.  I'm not necessarily objecting to the letter, I just  don't see what Mr. Mclntyre would add.  Isn't this letter already in evidence?  It seems to  me I've seen it before.  I would -- let me say this, my lord:  If I was aware  that this letter was already in evidence I would not  have retendered it.  But I don't --  I'm not saying it is.  It may be, my lord, it may be.  It seemed to me I've seen it before, but I'm not  sure.  Well, I want to be more certain that I  understand what you're asking the witness.  Did he --  are you asking the witness if he conducted himself on  the basis of such an understanding, or are you asking  whether there were some instructions that came from  those responsible for the management of the  department, that is responsible for policy, that such  was indeed the policy, or something else again, I  don't know?  I hear so many people talking about so  many things, and nobody seems to know what they mean.  For example, he says here: 23059  R.M. Mclntyre (for Canada)  Cross-exam by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  "Although the exact nature and extent of aboriginal  fishing rights has not yet been fully defined."  Well, that seems to me to be a remarkable statement to  stand alongside some of the broad general statements  that we see made from time to time.  I don't know  which ones were remarkable, this one or the other  ones, but these things seem to go on and on and  without being defined, and therefore, when you're  going to ask a witness about it I think it should be  defined.  MR.  GRANT  Q  Let me try to rephrase my question, my lord.  In this  last sentence that I've read to you, Mr. Mclntyre, it  appears that the minister, that is Mr. Crombie, at the  time of this letter in 1986 takes the position,  vis-a-vis the Province, that aboriginal fishing rights  within British Columbia exist, even though not yet  defined, all right.  That's what that sentence is  referring to.  Now, my question to you was was it your  understanding of the policy of the minister at the  time you were working with the department that they  recognized aboriginal rights at that time period?  In  other words, is that statement consistent with what  you were aware of when you worked at the ministry?  A   This is the kind of -- you know, of a thing that I had  no occasion nor desire to deal with in my day-to-day  relationship with Indian people or anybody else, and I  was there to, you know, as a government employee  charged with certain specific duties, and I have never  seen myself, you know, qualified to make comments on a  thing of this nature.  This was far and above anything  that I had to be involved with in my day-to-day  duties, and I would never have, then or not even now,  risk making any such comments, because I don't -- you  know, simply don't feel I'm qualified.  MR. GRANT:  I ask that this letter be marked as the next  exhibit, my lord, Exhibit 1236.  MR. MACAULAY:  How can that letter be marked, on what basis, my  lord?  If we're asked to admit such a letter was sent,  that's another thing, but on this cross-examination  it's quite clear the witness has never seen it, and  the witness says he's not qualified to make any  comment about it at all.  THE COURT:  Well, presumably —  MR. GRANT:  I presume this is a business record.  THE COURT:  It comes from your files, does it not, Mr. Macaulay? 23060  R.M. Mclntyre (for Canada)  Cross-exam by Mr. Grant  1 MR. MACAULAY:  No, no.  I hadn't seen that particular one  2 before.  3 MR. GRANT:  This copy of this letter does not come from Mr.  4 Macaulay's files, but this letter is the letter from  5 the Minister of Indian and Northern Affairs, and it  6 was last Tuesday that my friend suggested the Federal  7 government's position with respect to extinguishment  8 and acquiescence in this case.  And this letter is  9 certainly relevant, and I say it's a business record  10 and it can be marked as an exhibit, and I've referred  11 the witness to it and it can be marked as an exhibit  12 now.  13 THE COURT:  Isn't it a letter that if it wasn't produced by you  14 it was only lacking that quality because it wasn't  15 uncovered in your searches?  If you had uncovered it  16 you would have disclosed it.  17 MR. MACAULAY:  Yes, if we had seen that.  What I'm saying is it  18 can't be marked in this way.  I'll find out if indeed  19 that was the letter sent.  I see there's a telex -- or  20 rather a FAX date of November 28th, 1989 on it.  21 MR. GRANT:  That's because it came from my office, my lord,  22 that's my FAX number, and it was FAXed from my office  23 to Vancouver so I would have a copy for court, and  24 that can be excluded.  25 THE COURT:  I think there's something in what Mr. Macaulay says  26 about perhaps it's not appropriately tendered in the  27 course of cross-examination of the witness, but I  28 certainly think it's a letter that the plaintiffs are  29 entitled to put into evidence.  I think the question  30 is whether it should have been put in as part of your  31 case while you were tendering documents.  32 MR. GRANT:  Well, my lord, the issue of the tendering of  33 documents -- with all due respect, my lord, this  34 letter, and I have not confirmed whether it's been  35 marked or not, but I still say -- and Mr. Guenther's  36 proposing tomorrow morning we deal with this at  37 length, and Mr. Guenther will argue this issue out.  38 The Federal Crown has not expressed in their position  39 until last Tuesday, and material which I did not think  40 that was relevant with respect to, has become relevant  41 with respect to their opening, and Mr. Macaulay  42 himself has raised for the first time to my knowledge  43 the issue of acquiescence, and I think the policy of  44 the Federal Crown vis-a-vis aboriginal rights in this  45 province is extremely relevant in light of what the  46 Federal Crown is saying.  There's going to be more to  47 this letter ultimately that we'll deal with as a 23061  R.M. Mclntyre (for Canada)  Cross-exam by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR.  MR.  THE  GRANT  COURT  THE  MR.  result of the opening of Mr. Macaulay.  I don't think  there's any magic, my lord, as you have said, in  whether this letter is marked, given a number right  now.  I think it's as good a time as any to give it a  number now, and if my friend wants it to have a number  reserved so I can confirm it's in his file, I think  that's appropriate.  I doubt if that's your friend's position.  I doubt  if there's any doubt in your friend's mind about its  authenticity.  MACAULAY:  No.  It shouldn't be marked on the  cross-examination of this witness.  You see, the  plaintiffs are putting -- or are going to seek to put  in a whole lot of documents now after they've -- well,  perhaps they haven't closed their case.  And this will  be another of them, and that should be dealt with at  their proper time instead of putting the thing in  during the cross-examination of this witness.  Well —  I think if we're going to have a discussion about  this whole subject, I think we'll leave this until we  do that.  If it -- if for any reason it's  admissibility depends upon being tendered to a witness  called by the Crown, well then that position can be  deemed to be preserved, and I'll leave it for now and  we'll deal with it later when I hear submissions from  counsel.  Showing you a letter dated August 23rd, 1974.  It's  not a letter, it's a listing of registered Indian  traplines at Takla Landing, B.C.  I only have one of  that right now.  I just put that in front of you, Mr.  Mclntyre.  MACAULAY:  My lord, my friend tells me that this is a letter  from our files.  It hasn't got our stamp on it, I  assume that that's the case.  That's quite correct.  It was a letter that was  delivered to me I believe on October 26th with a whole  batch of other material which my friends have not yet  listed and indicated they would list the next time  they --  All right.  MR. GRANT  MR.  MR. GRANT  COURT  GRANT  Q  A  I'm not going to ask if you remember that, but you  have seen that before, have you not?  This comes out  of the trapline files of your agency.  I have seen so many trapline lists before, I do not  recall seeing this before. 23062  R.M. Mclntyre (for Canada)  Cross-exam by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  Q   Okay.  But the stamp of it of the Lakes District  agency, Prince George, August 23rd, '84, that would  indicate it would have come out of the files that you  were dealing with?  A   It would appear to indicate that, yes.  Q   Okay.  And this is a listing of registered Indian  trappers of Takla Landing, the Takla Band No. 17.  And  this morning I asked you about whether or not these  trappers -- whether or not you could determine the  origins, whether persons were Gitksan or Wet'suwet'en  or Nutsone from the band that they came from, and I  take it that you would -- you said no.  My  understanding of your evidence was that you could not.  And that would apply to those lists of trappers as  well, wouldn't it?  I guess their origin -- their tribal origin was not an  issue that I felt I needed to focus on.  This was  simply a list of traplines, and --  Based on the band?  You know, nothing more, yeah.  Right.  Of members of the band.  Okay.  So there could be Gitksan and Wet'suwet'en  persons whose names are on that list; you would agree  with that?  I suppose so.  Okay.  My lord, I would ask that this be marked as  the next exhibit, and I will arrange to have copies  made of it.  THE COURT:  It's a list of traplines?  MR. GRANT:  Yes.  It would be a registered Indian traplines of  Takla Landing B.C., Takla band No. 17, August 23rd,  1974.  It's three pages long.  When I say August 23rd,  1974, this list apparently was delivered to the Lakes  District office on that date.  All right.  Maybe your lordship would like to look at that.  1236.  MR.  A  Q  A  Q  A  Q  A  GRANT  THE COURT  MR. GRANT  THE COURT  THE REGISTRAR:  Yes, my lord.  (EXHIBIT 1236  1984)  List of Traplines, August 23,  MR. GRANT:  Those are all my questions of this witness,  THE COURT:  Thank you.  Re-examination, Mr. Macaulay?  MR. MACAULAY:  Yes.  I have one question.  THE COURT:  Thank you. 23063  R.M. Mclntyre (for Canada)  Re-in chief by Mr. Macaulay  Exam by Court  1 RE-EXAMINATION IN CHIEF BY MR. MACAULAY:  2 Q   Witness, could you turn to tab 16.  You've already  3 given evidence that you wrote that letter when -- at  4 the -- on the occasion of an interview with Amelia  5 Sam?  6 A   Yes.  7 MR. MACAULAY:  Now, during that conversation with Amelia Sam  8 concerning her late husband Mathew Sam's estate and  9 will, was there any mention by her of crest property?  10 MR. GRANT:  I object, my lord.  I never referred to this  11 document, and I never referred to the discussion with  12 Amelia Sam on cross, it was already dealt with on  13 direct.  My friend specifically put this document to  14 the witness on direct.  15 THE COURT:  This is tab 47?  16 MR. MACAULAY:  No, tab 16.  I drew it to the witness' attention  17 simply to draw his attention to the occasion of a  18 conversation, and in cross-examination the witness was  19 asked about -- it was suggested to the witness that he  20 may have or might have known about some other basis of  21 ownership of this trapline.  22 THE COURT:  This particular trapline?  2 3 MR. MACAULAY:  Yes, the Mathew Sam trapline.  24 MR. GRANT:  Well, my lord, this was a document that was put to  25 the witness on direct and I did not cross-examine on  26 it.  It related to a conversation with Amelia Sam, and  27 I didn't discuss that in cross-examination.  My friend  28 has dealt with this on direct and it's not proper  29 redirect for him to now -- I say he's now trying to  30 buttress his position, and I object to that question.  31 THE COURT:  Well, if Mr. Grant did not ask the witness about  32 this document or about this question, then it would  33 seem not to be permissible re-examination.  34 MR. MACAULAY:  I won't press the matter, my lord, it's not that  35 important.  36 THE COURT:  All right, thank you.  37 MR. MACAULAY:  I have no other questions in re-examination.  38 THE COURT:  Thank you.  All right, Mr. Mclntyre, in view of your  39 wide experience in this area, that is this  40 geographical area, what would you -- how would you  41 rate the seriousness of the various problems facing  42 the native people in the claim area?  I know your  43 experience is greater in the Burns Lake part of the  44 claim area, but you have experience going to the  45 Hazelton area and other parts as well.  What is the  46 biggest problem for these people?  And when I say  47 "biggest problem", I mean social, economic, cultural 23064  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  R.M. Mclntyre (for Canada)  Re-in chief by Mr. Macaulay  Exam by Court  or otherwise?  A   In my view, your lordship, I would say that the  biggest -- that the biggest problem facing these  people today is one of lack of economic opportunity,  and I think if they had a -- if they had an improved  economic circumstance that many of their -- of their  social problems might be lessened.  THE COURT:  I have heard in this evidence -- in this case  evidence about employment, which I gather would be  included within your category of economic opportunity.  I have heard about education, housing, alcohol and  drugs, health, gambling.  I dare say there are others.  Could you rate them as degrees of seriousness, or is  that a reasonable request to make?  A  Well, bearing in mind that the last several years of  my career have been oriented to things of an economic  development nature, I don't know as I'm now really  that qualified to comment on their social  circumstance.  I observe what appears to be  considerable improvement of that.  For instance, I see  a number of good quality homes that have sprung up, I  see -- I see community halls and recreation facilities  that have come into existence, I am aware that band  councils are apparently taking on greater  responsibility, I see a decline in the number of  offices of the Department of Indian Affairs, and I  sense from my discussions with my former colleagues  and acquaintances over in that department that their  roles have substantially changed.  But my own recent  experience is that there is still -- still room for  economic development, and in my interests in dealing  with Indian people in the last few years, and indeed  my motivation for leaving the Department of Indian  Affairs, was because I was personally more  enthusiastic about working in an economic development  area than I was in social and other areas of which  Indian Affairs at the time concerned itself.  I don't  know whether I've given you a very good answer.  THE COURT:  No, I find that very helpful.  Thank you.  All  right, thank you.  I have to ask counsel if they want  to ask anything about what I've asked the witness.  I  hope they don't.  MACAULAY:  I have no questions, my lord.  MR  MR. PLANT  MR. GRANT  THE COURT  No questions, my lord.  No questions.  Thank you.  All right, thank you,  Mr. Mclntyre.  MR. MACAULAY:  My lord, that's the last witness that we expect 23065  Submissions  1 to call before the court.  There will be some, as I  2 expect next week's -- some cross-examinations of  3 deponents of people who have sworn custodial  4 affidavits, as we call them.  5 THE COURT:  Yes.  6 MR. MACAULAY:  And that brings me to the next item of business,  7 which is the wills.  Oh, yes, Mr. Guenther has  8 something he wanted to say.  9 MR. GRANT:  Because of scheduling, there was some matters Mr.  10 Guenther wished to deal with, and if he could speak to  11 this now.  12 THE COURT:  Yes.  13 MR. GUENTHER:  My lord, I beg leave to be excused because I have  14 another committment I was unable to avoid.  There was  15 a matter that was raised, I think it was late last  16 week, concerning the pleadings of Canada, and your  17 lordship invited some submissions in that regard, and  18 we would like to take the opportunity to do that.  I  19 would -- I notice Miss Koenigsberg was dealing with it  20 at the time, and she may be in a position of  21 responding, I don't know, but I propose we deal with  22 that tomorrow, if that's at all possible.  23 THE COURT:  Well, it's Mr. Macaulay's part of the case, and I  24 would give first dibs to him on the use of the time  25 during his period.  Is it convenient to deal with this  26 matter tomorrow, Mr. Macaulay?  27 MR. MACAULAY:  It is, my lord.  2 8 THE COURT:  Yes, all right.  29 MR. GUENTHER:  My lord, if I might be excused then.  The only  30 other comment I have is with respect to Exhibit 1202,  31 the Boys documents and on the application of the  32 Province, and I anticipate we will be able to deal  33 with that tomorrow if that turns out to be convenient  34 as well.  35 THE COURT:  Yes, all right, thank you.  Mr. Macaulay.  36 MR. MACAULAY:  Could this book of documents now be marked as  37 Exhibit 1231.  38 THE COURT:  Yes, all right.  39 MR. GRANT:  Well, I'll make a reservation regarding relevance to  40 portions and things like that, but subject to that --  41 THE COURT:  Yes, thank you.  42 THE REGISTRAR:  1231.  43  44 (EXHIBIT 1231 - Document book - Rae Mclntyre)  45  46 MR. MACAULAY:  We have, my lord, three books of documents.  47 These are the wills and associated documents, my lord. 23066  Submissions  1 THE COURT:  How many books?  2 MR. MACAULAY:  There are three of them, my lord.  3 MR. GRANT:  My lord, I have no objection to my friend reserving  4 a number with respect to these.  There is an affidavit  5 of Shirley Peters, and I have a submission to make  6 with respect to this matter.  It is my submission that  7 my friends have bypassed -- we will be seeking to  8 cross-examine on these, and that these documents  9 should not be marked until our cross-examination  10 occurs, although a number can be reserved, but I also  11 have a submission as to who we cross-examine.  12 MR. MACAULAY:  Well, I think that Mr. Grant ought to make his  13 submission on that point now.  14 MR. GRANT:  I am happy to make a submission on that point right  15 now.  16 MR. MACAULAY:  It's the first we've heard of that.  17 THE COURT:  Well, so that I will know, where is this affidavit?  18 MR. MACAULAY:  The affidavit is in the first volume at the  19 beginning of the volume 1, the affidavit of Shirley  20 Anne Peters.  And the Exhibit A to the affidavit is  21 the next tab, and Exhibit B to her affidavit is the  22 wills, the index to this collection of wills.  23 THE COURT:  Yes, all right.  Now, how long or when were these  24 documents delivered in this form or other forms to  25 your learned friend, Mr. Macaulay?  2 6 MR. MACAULAY:  When were they?  2 7 THE COURT:  Yes.  28 MR. MACAULAY:  A week ago Monday in this form.  We have been  29 corresponding with my friend for some time before that  30 concerning these, and they have been listed as part of  31 our documents for a long long time.  Mr. Grant has in  32 fact tried to use one of the wills -- one of this  33 collection of wills in his own -- in his own case.  34 THE COURT:  Yes.  35 MR. GRANT:  Not in this collection.  3 6 MR. MACAULAY:  Well, it's there.  37 THE COURT:  All right.  What I'm wondering, is the —  38 MR. MACAULAY:  Several have been marked.  Perhaps I could  39 describe, first, what --  40 THE COURT:  Yes, all right, go ahead.  41 MR. MACAULAY:  What they are.  Tab 1, for instance, my lord, is  42 the will of Jimmy Andrew.  You will recall there was  43 quite a bit of evidence about Jimmy Andrew, and this  44 is a will dated April 27th, 1955 in which he gives,  45 devises and bequeaths his properties to various  46 members of his family; his four boys and his  47 daughters, as well as to his wife.  The -- this, like 23067  Submissions  1 all these -- the other documents, come from the estate  2 files kept at the various levels in the federal  3 bureaucracy, and I say the various levels, the --  4 originally, as your lordship has heard from Mr.  5 Mclntyre, he dealt directly with the Administrator of  6 Estates in Ottawa.  Because of various reorganizations  7 of the government functions, the decentralization of  8 them, the Ottawa function has in recent years been  9 carried out by the region, that is the Vancouver  10 headquarters, the British Columbia headquarters in  11 Vancouver, and documents are found in all these three  12 levels.  There's the District, such as the Burns Lake  13 District, there's the Region, where wills files are  14 kept now, and there are -- used to be Ottawa's estate  15 files, until fairly recent years.  The affidavit  16 shows -- refers to the various -- these three series  17 of files.  The index, of course, that's Exhibit B  18 index, shows the tab, the testator's name, Jimmy  19 Andrew in this case, our list number, in that case was  20 11061 -- that would be a document listed about a year  21 ago, most of them are -- were listed long before  22 that --  the source and file number, and the date of  23 the will, and then the other documents relating to the  24 will.  When I say the other documents, the only  25 documents we have included that relate to these wills  26 are documents that will sufficiently identify usually  27 the application for probate document that will  28 sufficiently identify the testator.  As your lordship  29 has seen through the evidence of the last witness, a  30 form or various forms were used in which the band  31 number of the deceased, the testator, is given, and  32 also the band number of his next of kin, that is next  33 of kin as defined by the Indian Act, the children of  34 the deceased, the wife and children.  It appears that  35 in Jimmy Andrew's case we haven't got that extra  36 document.  Jimmy Andrew's will stands by itself, but  37 the will itself plus the evidence adduced at trial  38 sufficiently identifies that particular testator.  39 Jean Batiste, this is a will, a 1936 will.  Batiste  40 is -- the will appears in tab 3, but tab 2 is the  41 application for a probate or administration will next,  42 and that document identifies this Jean Batiste as a  43 member of the Moricetown band, his regimental number  44 5, and also identifies on the first page here all the  45 next of kin; the wife, the sons, and the daughters.  46 And the -- we are not seeking to prove by tendering  47 these documents whether or not or in what manner the 2306?  Submissions  1 intentions of the testator were carried out.  That's  2 not the purpose of them.  The purpose of them is to  3 show -- is to deal with the plaintiffs' assertions in  4 its pleadings regarding particular kinds of property  5 and most particularly traplines.  They're acts of the  6 plaintiffs' predecessors, who are also referred to of  7 course in their pleadings, and we will be submitting  8 that in many cases the acts of those predecessors do  9 not conform with the viva voce evidence given by the  10 many plaintiffs, or with the pleadings in that regard,  11 living according to their laws exclusively in relation  12 to traditional or crest property.  Your lordship has  13 heard all sorts of evidence about the crests, how  14 traplines, for instance, is dealt with at the feast,  15 and the successor is chosen and that successor owns  16 the trapline and so on.  I might say that in argument  17 we will be, and this is one reason we will -- it's  18 important to identify the testator in argument, not in  19 this exhibit.  We will be showing by reference to the  20 plaintiffs' genealogies who they are, what their  21 chief's name is, and by and large these are of the  22 chiefly order, and what -- and what they have done or  23 not done with traditional property.  We are not  24 concerned in the least with what happened to the car  25 or what happened to chattels, or even what happened to  26 the property on reserve.  That's not the purpose of  27 this at all.  Now, we could not make any effective  28 submission in that regard if we hadn't produced every  29 will we could come across, every will we could find by  30 thorough diligent search over the years of the files.  31 We wouldn't be in a position to say -- in fact, if we  32 said "Well, 57 chiefs did this with their traplines,  33 contrary to the Gitksan law", because the question  34 would remain open, well, yes, but how many people made  35 wills and what proportion of the whole is that, and  36 for that reason we have included every will.  Some of  37 them make provision that accords with the Gitksan  38 traditional system that your lordship has heard so  39 much about, others don't, and submissions will be made  40 about -- about those in various ways, and they're all  41 part of the government records.  These are kept in  42 the -- I don't think in the case of government records  43 we need so much deem with the ordinary course of  44 business, but they are kept in the ordinary course of  45 business.  The affidavit was drawn with the -- keeping  46 very much in mind the provisions of the Evidence Act  47 that govern the proof of documents like this.  We made 23069  Submissions  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. GRANT  available to our friends all the estate files, the  whole file.  It would be inconvenient and unnecessary  to have the whole file in this case -- some of the  files are that thick, so we've confined the exhibits  to the file cover, the relevant wills and the  document -- and a document, usually the applications  for probate that will identify the testator and the  testator's family.  Their relevance, of course, relate  directly to the plaintiffs' pleadings.  We've been  through this before, the question of the relevance of  wills, and your lordship has admitted in evidence a  number of wills, a number of these wills.  In cases --  the last witness -- your lordship will recall that the  last witness identified one will but was unable to  identify the other.  He said he couldn't recognize the  signature and he hadn't heard about them, the last of  the plaintiffs' witnesses.  So this isn't anything  new, we're just seeking to prove the wills in a  compendious and convenient way.  Shirley Peters is a  member of the public service, she's a regional estates  officer employed by D.I.A., and she keeps the records,  the estate file on deceased Indians pursuant to the  estates administration provisions of the Act.  She has  personal knowledge of the matters deposed to, she has  served as a district estates officer in Nanaimo and is  now in the Vancouver regional office, so that she has  been at two of the three levels I've talked about.  There is no third level anymore.  I should mention, my  lord, that she examined of course the original files,  not our copies.  In paragraph 6 she shows that 94 of  them -- of these files had been deposited in the  public archives in Burnaby, but we have dealt with  those 94 files in the same way as the others, that is  that she has examined each file and satisfied herself  each of those archival files are files deposited in  the archives, that those are the files kept by the  department in the case of these various testators  regarding their estates.  And I submit that these  three documents should be -- three books should be  assigned -- should be marked as an exhibit at this  trial and assigned A, B, and C, I suppose would be the  obvious thing.  :  Mr. Plant.  :  I wish to speak to that, my lord.  My lord, my  submission is these documents in this collection are  relevant.  If the issue is relevance, then I say that  where we have, as we have in this case, allegations by 23070  Submissions  1 plaintiffs as to a system of governance, which on the  2 evidence presented is primarily recorded, if at all,  3 in the memories of the people who participate in the  4 event, then I say your lordship should be glad to have  5 evidence in writing that deals with these matters, in  6 some cases most directly, because of the issues of  7 where traplines should go, the issues of where the  8 property that and what property individuals who are  9 plaintiffs or ancestors of present plaintiffs consider  10 as their property.  Here you have some evidence in  11 writing, some evidence that has survived people's  12 deaths and remains here in physical form that can  13 provide some context for the evidence given by the  14 plaintiffs on issues which I say for the most part are  15 extremely important in the context of the allegations  16 made by the plaintiffs in this case.  So if the issue  17 is relevance, then I would strongly urge your lordship  18 to find in favour of admissibility on that ground, and  19 that's about the only ground that I think I can assist  20 your lordship on.  21 MR. MACAULAY:  Can I say something else before Mr. Grant?  22 THE COURT:  Sure.  2 3    MR. MACAULAY:  Every document has an initial in the lower  24 right-hand corner.  That is the deponent's initial.  25 That's Shirley Peters', in case anybody wonders what  26 that is.  27 THE COURT:  All right.  2 8    MR. MACAULAY:  There's another thing.  The — we have put in  29 evidence the commission evidence of Mr. Boys.  Mr.  30 Boys was another Indian agent who served for many  31 years at Hazelton at the other end of the claim area.  32 Mr. Boys gave evidence, and that -- and I didn't seem  33 to think it was necessary to have it repeated by this  34 last witness, but Mr. Boys gave evidence that when as  35 the will was sent on to Ottawa along with the  36 application for probate or administration, as the case  37 might be, if it was a question, the standard drill,  38 the practise, that had to be carried out, of course,  39 was to type up a copy and identify that as a copy.  If  40 your lordship turns to tab 28, you will see an example  41 of that.  That is the copy that will be in the  42 district file after the original will has been sent on  43 to Ottawa.  In those days there weren't photocopies,  44 and -- and so there are a number of these wills,  45 these -- well, wills and other testamentary documents,  46 that come out of the Hazelton District file, the Burns  47 Lake District file, which will appear like that.  It's 23071  Submissions  1 the copy made by the Indian agent or under his  2 supervision when he sent, as he had to do, the will on  3 to Ottawa together with an application for approval of  4 the will.  Chief Cookson is Guxsan, and there is a  5 case where Mr. -- the testator made provision for,  6 amongst other things, the diminution of trapline and  7 beaver hunting grounds, as well as chattels and other  8 things that are not -- are not relevant.  But I,  9 having said that, I -- we have included every will  10 that we could find, save two in this collection, and  11 I'll address those to you after Mr. Grant has made his  12 general submission, and that would apply of course to  13 the next two as well.  But this is the -- I seek to  14 have this marked as one exhibit.  15 THE COURT:  Thank you.  Mr. Grant.  Do you want to start, Mr.  16 Grant, is it worthwhile starting?  17 MR. GRANT  18 THE COURT  19 MR. GRANT  I will -- I can probably deal with my points now.  I can't sit beyond 12:30.  Well, it may be then that I may be in some form  20 of -- considering your lordship's comment, I think we  21 should start at two.  22 THE COURT:  I think I'll take advantage of this and resume at  23 two o'clock.  24 THE REGISTRAR:  Order in court.  25  2 6 (LUNCHEON ADJOURNMENT TAKEN AT 12:25)  27  28 I hereby certify the foregoing to be  29 a true and accurate transcript of the  30 proceedings herein transcribed to the  31 best of my skill and ability  32  33  34  35  36 Graham D. Parker  37 Official Reporter  38 United Reporting Service Ltd.  39  40  41  42  43  44  45  46  47 23072  Submissions  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 ADJOURNMENT)  THE REGISTRAR: Order in court.  THE COURT:  Mr. Grant.  MR. GRANT:  As I indicated before lunch, my submission is not  going to be lengthy.  First of all, with respect to  the marking of these documents, the submission that I  have is if my friend wishes to reserve a number at  this time, and upon our cross-examination then,  subject -- then the documents can be marked as  exhibits proper, if that's the order he wishes them  in.  I do not agree that where there is an affidavit  tendered to the documents appended that the exhibits  should be marked now, in light of the experience we've  had in that regard in other cases.  So that's the  question of the marking, and that can be dealt with  later.  And in light of the fact that my friend says  that he is going to be tendering the historical  documents later because he has not yet been able to  get them completed and delivered to me, I think that  that should not cause a problem.  But my substantive  position is this on the issue, my lord, I'd like if  you could look at the Shirley Peters affidavit.  I  think it's at the beginning of the first volume.  THE COURT:  Yes.  MR. GRANT:  Paragraph —  THE COURT:  What is your point, if I may ask, Mr. Grant —  MR. GRANT:  Okay, my point is —  THE COURT:  -- you don't want to examine Shirley Peters?  MR. GRANT:  No, we wish to examine the person that's the real  custodian of these files, the person that knows about  these files, and we propose that we would  cross-examine out of court Mrs. Pat Simon.  The  implication, my friend has very eloquently stated, the  reason why he wants to tender these.  It's a question  of the -- that there's an implication from these large  volumes of wills of Gitksan and Wet'suwet'en people  not complying with their laws, and he's tendering  these and I would not agree that they are business  records as I have argued but, in any event, they are  records in the custody of the federal defendant.  THE COURT:  Well, they might also be admissions made by  predecessors of the plaintiffs.  MR. GRANT:  Well, if it was as clear as the example you gave me  then -- the other day when I raised the argument about  the admissibility issue generally, then I think so,  but I don't think it's at all that clear, and that's 23073  Submissions  1 why we want to cross-examine the true custodian.  And  2 if you look at paragraph 2 you see the very problem we  3 have.  I think that my friends would be hard pressed  4 to find a more remote custodian.  Shirley Peters  5 joined the DIA in 1987 and she worked as a district  6 estates officer in Nanaimo from December 1987 until  7 March 1989.  To my knowledge not a single one of these  8 files derives out of the district office in Nanaimo.  9 So then she knows what the kinds of files are and, as  10 my friend's eloquently put, she's initialled all of  11 these.  Well, my lord, if you go to the second page,  12 paragraph 4, she says:  13  14 "I have examined 27 estate files maintained by  15 the DIA district office in Hazelton until  16 October 1989, and listed on Exhibit A to this  17 my affidavit is the Hazelton files."  18  19 Now, these 27 estate files, and I dare say the  20 park files as well, which is -- the park is really  21 files that moved from Hazelton and, as she attests,  22 also from Burns Lake, Vanderhoof, and Prince George.  23 We're not seeking to examine anybody from those  24 offices, but -- Mr. Mclntyre, of course, was for some  25 period in Burns Lake -- but the -- these files, both  26 those and park, the originals that came to Ottawa that  27 came out of the Hazelton office, and the ones that are  28 presently in Hazelton, they were moved down to  29 Vancouver with another regional estates officer that  30 didn't come from Nanaimo, Mrs. Pat Simon, moved to  31 Vancouver and is as available as Mrs. Peters as far as  32 I know, and she resides and she works out of the same  33 office as Mrs. Peters, and she is the one -- she is  34 the person who knows about the history -- well, about  35 the conduct of these files, and she's the one that has  36 had custody of the files.  37 Now -- so it is our submission that -- it is my  38 submission that in the circumstances of this case, in  39 the nature of this case, that there is absolutely no  40 prejudice to my friends to tender as the person to be  41 cross-examined on these estate files Mrs. Pat Simon,  42 who's the person that is truly the custodian of the  43 Hazelton files, and the one that is knowledgeable  44 about them.  And for them to put up somebody as remote  45 as Mrs. Peters, I say -- I'm not saying they can't --  46 in some ways can't do it, but I'm asking for you to  47 exercise your discretion on this application that we 23074  Submissions  1 be entitled to cross-examine, because the real  2 problem, my lord, is this:  Is that the option we now  3 have is to consider to apply to cross-examine Mrs.  4 Simon in court on reply evidence, and I think that  5 that begs the issue that, now that they've tendered  6 this, now that Mr. Macaulay has made clear last  7 Tuesday and today what he wants to do and what the  8 federal defence is, that they should be required to  9 tender the person that's knowledgeable so that we have  10 a real custodian, a person that we can cross-examine  11 on the issue that Mr. Macaulay is tendering these  12 documents for, not on the issue of whether or not  13 their initials are in the bottom right-hand corner,  14 which is a tremendous waste of time for anybody to  15 cross-examine on.  And I would ask leave that you  16 direct -- and I've -- I have in my mind that we would  17 be -- we would schedule this cross-examination at a  18 time convenient to the witness and to the federal  19 crown and the cross-examination of course would be out  20 of court.  I'm not -- I'm saying of course because  21 the -- generally our approach has been that  22 cross-examinations on affidavits would be out of court  23 and I'm not suggesting anything different here.  But  24 that is my submission.  I feel that, with the greatest  25 of respect, that if we're denied that opportunity to  26 cross-examine the real custodian of these files, the  27 person that knows what the heck went on with these  28 files, that you are going to get one side of the story  29 regarding this matter and that we can make -- in a  30 clear and concise cross-examination we can make this.  31 The alternative we have with this affidavit is to  32 cross-examine Mrs. Peters next week and come back to  33 you and say, well, she doesn't know anything about  34 what we want to cross-examine on, and could we please  35 go and get somebody else to cross-examine on or apply  36 on reply evidence to call a witness adverse, a federal  37 crown employee, and cross-examine in court.  And I  38 think, with all due respect, that is all a waste.  And  39 after analysing Mrs. Peters' affidavit, it's our  40 submission that we be entitled to cross-examine Mrs.  41 Simon.  And if next week is not convenient, I'm not --  42 I mean for her, then we can sort that out between  43 counsel.  But that's my submission.  And then after  44 that cross-examination is completed, then my friends  45 can tender these and the affidavit would go in with  46 the cross-examination.  47 THE COURT:  All right.  Thank you.  Mr. Macaulay? 23075  Submissions  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR.  THE  MR.  THE  MR.  THE  MR.  MACAULAY:  My lord, this is a  COURT:  I'm sorry, perhaps I should hear Mr. Plant first.  PLANT: I have no submission to make on --  COURT:  No, I'm sorry, I did hear from you I think.  PLANT:  Yes, although Mr. Grant has added an additional  matter.  I have nothing new to say on that.  COURT:  Thank you.  All right.  Macaulay.  MACAULAY:  My lord, this is a custodial affidavit.  The only  issue on a custodial affidavit is whether the  documents deposed to are properly part of the records  of the government of Canada.  Clearly Mr. Grant seeks  to cross-examine on other matters.  He mentioned one  side of the story.  I don't know what he means by one  side of the story.  It's not a phrase that's  appropriate to the issue whether or not these wills  are part of the estate files kept by the government of  Canada.  That's the only issue.  Mrs. Peters has  looked at all the files and determined that the  originals of what we have produced, the photocopies,  are in the appropriate estate files of the Department  of Indian Affairs where you'd expect them.  If Mr.  Grant wants to call any witness in rebuttal, that's  for him to do.  This is not rebuttal evidence.  He is  trying to put in part of his case in ours.  GRANT:  That's not correct.  COURT:  He's trying to stop you from putting something in.  What I'd like to know --  MACAULAY:  How can he stop us -- what possible admission,  unless this other witness Mrs. Simons were to say "No,  these aren't wills.  They are forgeries.  We didn't  have any such thing in Hazelton."  In fact, I don't  -- that only attaches to some of the wills because  some of them came from other offices.  THE COURT:  Well, I'm disoriented here.  I'm not sure what we're  doing.  Are you seeking leave to adduce this evidence  by affidavit or are you -- do you have a right to put  it in under some provision of the --  MR. MACAULAY:  We have a right to put them in under the  provisions of the Evidence Act.  THE COURT:  And the Evidence Act provides what, according to the  affidavit?  MR. MACAULAY: Section 36 of the Evidence Act provides that:  "A copy of an entry in a book kept in a  department of the government of Canada, or of  the government of British Columbia, shall be  received as evidence of the entry, and of the  MR.  THE  MR. 23076  Submissions  1 matters, transactions and accounts recorded in  2 it, if it is proved by the oath or affidavit of  3 an officer of the department that the  4 (a)   book was, at the time of the making  5 of the entry, one of the ordinary  6 books kept in the department;  7 (b)   entry was made in the usual and  8 ordinary course of business of the  9 department; and  10 (c)   copy is a true copy of it."  11  12 Now, the "Interpretation" section provides that --  13 I meant to refer to paragraph 48.  That's the  14 "Admissibility of business records".  We've been  15 through that before, and it says:  16  17 "(1) In proceedings where direct oral evidence  18 of a fact would be admissible, a statement of  19 the fact in a document is admissible as  20 evidence of the fact if the document was made  21 or kept..."  22  23 As is the case here.  24  25 "...in the usual and ordinary course of business  26 and if it was in the usual and ordinary course  27 of the business to record in that document a  28 statement of the fact at the time it occurred  29 or within a reasonable time after that.  30 (2) Subject to subsection (3), the  31 circumstances of the making of the statement,  32 including lack of personal knowledge by the  33 maker, may be shown to affect its weight, but  34 the circumstances do not affect its  35 admissibility.  36 (3) Nothing in this section makes admissible as  37 evidence a statement made by a person  38 interested at a time when proceedings were  39 pending or anticipated involving a dispute as  40 to a fact which the statement might tend to  41 establish."  42  43 That's not the case here.  And:  44  45 "(4) For the purpose of any rule of law or  46 practice requiring evidence to be corroborated  47 or regulating the manner in which 23077  Submissions  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.  MR.  GRANT  uncorroborated evidence is to be treated,a  statement rendered admissible by this section  shall not be treated as corroboraton..."  Et cetera.  That doesn't apply either.  My lord, we have shown that this entry in the --  these documents comply under the affidavit of Mrs.  Peters comply with both those sections and clearly  it's an affidavit that's contemplated by -- especially  by section 36.  We are not trying to prove even the  truth because it's not a question of truth.  A  testamentary disposition isn't a question of truth,  it's an act.  It's the recording of an act.  And you  have heard Mr. Mclntyre yesterday and this morning,  and we have also the -- just the same evidence taken  on commission by Mr. Boys.  In both cases they cover  the process of dealing with wills, the circumstances  under which they are made, how they are received, what  happens to them after the testator dies, what forms  are filled in, who approves, and in the cases -- the  case of the property we're interested in, who the  department deals with in regard to the re-registration  of a trapline, although we're not trying to prove what  did happen in the end.  What we are trying to  establish by these documents is that Chief Guxsan left  his trapline to A, B, and C, and we will make  submissions on whether that conforms with the  plaintiffs' assertions as set out in their statement  of claim and in their evidence, all their evidence, or  whether it doesn't.  What does the section say, that if these custodial  facts are proven, does it say by affidavit?  Yes.  MACAULAY:  Yes,  "...if it is proved by the oath or affidavit of  an officer of the department that the  (a) book was, at the time of the making  of the entry, one of the ordinary  books kept in the department;  (b) entry was made in the usual and  ordinary course of business of the  department; and  (c) copy is a true copy of it."  That's what the Peters affidavit addresses.  And  your lordship has seen sample estate files now dealt 2307?  Submissions  1 with.  These aren't unusual documents at all.  They're  2 in the ordinary business --  3 THE COURT:  Yes.  All right.  4 MR. MACAULAY:  — of the Indian agent and of the department.  5 And your lordship has enough evidence now to be  6 able to tell, for instance, whether that was a will  7 made in the Indian Agent's office.  Well, you can tell  8 often by who's the witness, but -- or whether it's  9 something that was brought in and drafted at home or  10 in a solicitor's office.  11 THE COURT:  All right.  Thank you.  12 MR. MACAULAY: You know, the alternative would be to dump all the  13 files in court.  14 THE COURT:  Well, the custody and the nature of the custody  15 would still have to be proven.  16 MR. MACAULAY:  Well, a person who has physical custody of the  17 files would then have to come in and say these are all  18 kept in our Vancouver regional office.  19 THE COURT:  Yes.  20 MR. MACAULAY:  That's all they would have to say though, and  21 this is -- these are part of our business records.  We  22 have to satisfy the court of the origin, the source,  23 and I don't think the source is disputed.  24 Now, one side of the story, I don't know anything  25 much about Mrs. Simons.  I doubt very much whether she  26 was involved with DIA when most of these estate files  27 were done.  If the plaintiffs want to call her in  28 rebuttal, the plaintiffs can take whatever steps they  29 have to or want to take.  That's part of their case.  30 We don't have to do that.  The statute absolves us  31 from having to produce a person who may or may not  32 have had an active part in dealing with the estate.  33 If that were so, we'd have to call about 20 or 30  34 people, some of whom are dead.  A lot of them are dead  35 and gone.  All the old Indian agents before Boys, for  36 instance, and some since.  So there is no reason.  He  37 doesn't say, now this person is not -- Mr. Grant can't  38 say this person can't -- she is not qualified to say  39 what she -- the things that she's required to say by  40 section 36; that is, these are our records, and  41 they're kept -- they're our ordinary records, our  42 ordinary business records, and we keep them for  43 general purposes, not for litigation purposes.  And  44 the affidavit says that, and he can cross-examine on  45 it if he has any doubts, or if he has doubts that she  46 has personal knowledge, and he can inquire into the  47 steps that she took -- the steps that she took to 23079  Submissions  1 determine -- to the accuracy of the statements made in  2 her affidavit before she made it.  This amounts to  3 your lordship directing a party to produce a witness  4 for other purposes.  We are producing a custodial  5 witness.  6 THE COURT:  Well, that's why I asked the question I did because  7 if it were a case of you applying for leave to prove  8 these facts by affidavit, I think I would have some  9 say, some jurisdiction, to exercise a discretion in  10 order to let that evidence in, depending upon who the  11 deponent might be.  12 All right.  Well, I have your point.  13 MR. MACAULAY:  The statute confirms our right to take this  14 procedure, my lord.  15 THE COURT:  Yes.  All right.  16 MR. MACAULAY:  That's my submission.  17 THE COURT:  Mr. Grant.  18 MR. GRANT:  Thank you, my lord.  Well, firstly, my friend I  19 think mistakes one point, and that -- firstly, I think  20 there's no doubt that we're entitled to cross-examine.  21 THE COURT:  He's not saying that.  22 MR. GRANT:  And of course we have made it clear all along that  23 we would cross-examine.  The second point I wish to  24 make is with respect to the delivery of Mrs. Peters'  25 affidavit.  That was delivered to us on November 24th.  26 We did not know anything about her until then, but I  27 say that under Rule 40 (48) which deals with affidavit  28 evidence, and Rule 40 (42) allows evidence by  29 affidavit at trial, Rule 40, sub 48, of the Supreme  30 Court rules says that "The court may on the  31 application of a party furnished with an affidavit  32 under sub rule 42...", which is a section setting out  33 that evidence of a witness can be given by affidavit  34 if a copy is delivered at least 30 days before.  And  35 we're not of course disputing that.  "...order that  36 the evidence contained in the affidavit be given  37 orally where the court considers (a) that the evidence  38 contained in the affidavit is controversial or there  39 is some good reason why the evidence should be given  40 orally."  41 Now, what I'm saying in this situation, my lord,  42 and then there's the provision of certain evidence, is  43 that it's -- it's no doubt what my friend wants to do  44 with these wills, and I want to -- I want to --  45 there's something that is quite important that my  46 friend sort of -- sort of paints a broad brush.  47 Mr. Mclntyre was the agent -- Indian agent in 23080  Submissions  1 Burns Lake from 1965, and if we include Prince George  2 up to 1982 in the Burns Lake area on the border.  Mr.  3 Boys ends in the Hazelton area in 1951.  My friends  4 have been very, very, very careful to keep out of  5 evidence of their case Indian agents and former Indian  6 agents from the Hazelton office, and now they are  7 tendering these Hazelton files that, except for -- and  8 I can see now why this affidavit was delivered so late  9 because until October of 1989 the sole custodian of  10 those Hazelton files was Mrs. Simon, but because of  11 the reorganization of the office in October of '89  12 they've got the files down to Vancouver as part of  13 DIA's organization, and they now can say Shirley  14 Peters knows something about them because she happened  15 to come in at the same time.  The issue is what is  16 meant by these files.  17 When I said there's one side of the story, I'm  18 saying my friends just want you to "Just look at the  19 will, don't do anything else.  Just look at the will,  20 and that's all Mr. Grant can ask on."  I say that when  21 they put Mrs. Peters' affidavit in, she's available  22 for general cross-examination.  And that's the issue.  23 And I say that they are -- it's not a question of us  24 proving our case or not proving our case.  What I have  25 a right to cross-examine on is what is the  26 significance or non-significance of these wills.  I  27 cross-examined Mr. Mclntyre on the will that he  28 himself had personal involvement about.  The will of  29 Frank Tibbett's, why he protested, was not even a  30 plaintiff, but because the will went in I felt -- and  31 he knew about it, I could examine him on it.  But of  32 course in this manner my friends are very carefully  33 side-stepping the very real issue they want to argue  34 and that's the one reason because they do not want  35 evidence before the court of what in fact is the  36 significance of these wills by the oral evidence of  37 anybody that knows what is going on.  And that's why I  38 say we should be entitled, in light of Mr. Macaulay's  39 very careful and eloquent submission this morning  40 about what he intends to do with these wills, we  41 should be entitled to cross-examine the custodian of  42 those Hazelton wills who knows what those wills mean.  43 And Mr. Macaulay said the files are this thick.  I  44 don't want to tender the files in court as well, but  45 there's a reason why the files are that thick, my  46 lord.  And I have carefully been watching my friend's  47 document list for certain correspondence that has not 23081  Submissions  1 yet been produced on their document list that went to  2 the Hazelton office about exactly the issue that's  3 before the court.  Why was the Hazelton office of the  4 Indian agency -- it took 30 years to probate certain  5 estates, and it goes to the very issue that Mr.  6 Macaulay wants raised, wants to use the wills for.  7 It's because we will -- we will have an argument as  8 well, but we are deprived of the ability to  9 cross-examine a person who's knowledgeable about it.  10 And it was -- I found it very remarkable that my  11 friends did not call Mr. Macfarlane or any of the  12 other Indian agents or former Indian agents from the  13 Hazelton office, knowing that they had contacted those  14 people, and now of course they have not -- they have  15 not -- have no intention of contacting -- of tendering  16 Mrs. Simon and that's because they do not want to have  17 before the court the evidence of what really went on  18 with respect to the estate files in Hazelton.  And  19 we -- I say that, given what my friend wants to use  20 these for, given the discretion your lordship has,  21 given the timing of the trial and the fact that this  22 will -- I'm shortcutting I can see because I can  23 cross-examine Mrs. Peters, I'm entitled to, and if I  24 have to that's what I'll do and see where I can get,  25 but I think that the real issue before your lordship  26 is the issue that we should be entitled to  27 cross-examine on it.  We did cross-examine Mr. Boys on  28 this, but he -- his knowledge ends in 1951.  We  29 cross-examined Mr. Mclntyre, but his knowledge ends in  30 the Burns Lake District.  And the real area, the  31 Hazelton district office, the Hazelton Indian agency,  32 we have not either got the correspondence from Ottawa  33 relating to the Indian estate files that shows what  34 was going on, nor have we got a custodian who's the  35 proper and true custodian.  36 And I'm focusing -- I can easily focus on this for  37 this purpose on the 27 estate files maintained by the  38 district office in Hazelton until October of this  39 year, and those -- I say that my friends have  40 absolutely no reason.  They have not given you a  41 single reason why they cannot tender Mrs. Simon except  42 that they say "We can go to section 36 and we're --  43 and we're not going to let Mr. Grant near the person  44 that really knows what's going on in these files."  45 And of course my friend isn't going to agree that  46 we can cross-examine Mrs. Simon on reply evidence.  47 I'm sure my friend will oppose, A, us calling her, and 23082  Submissions  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  then, secondly, he'll oppose our right to  cross-examine her.  And I say that if my friends are  going to use these estate files in this manner, that  we should have the right to cross-examine the true  custodian of them, and cross-examine on what the  significance of them is.  That's what's relevant in  this trial, my lord.  And I say that it's misleading.  It's misleading to leave those and say, oh, that all  speaks for itself.  And we should have the right to  cross-examine Mrs. Simon.  MR. MACAULAY: I don't know of any documents that we didn't  produce.  We produced all the files and all the  correspondence in it, and if my friend wanted some  particular thing, and he seems to have some particular  correspondence in mind, all he had to do was to tell  us that in his opinion that was relevant.  It seems  that he's going to attack the Department of Indian  Affairs on the question of how estates were  administered, that is, as he said, it took 30 years to  administer estates.  Well, I don't know if that's  relevant in this case.  I doubt it.  Suppose the  administration was awful.  What difference does that  make to the issues before your lordship?  MR. GRANT:  That's not the issue, my lord.  The issue is that  there's a reason.  There's a reason why the estates in  the Hazelton office did take 30 years and that reason  is --  COURT:  I'm not sure —  GRANT:  -- the matrilineal system that the Indian Affairs  branch upheld in the Hazelton office which conflicted  directly with the documents here.  That's the point.  THE COURT:  Well, I'm sorry, Mr. Grant, I think that's a  different question from the one that we're dealing  with here.  I do not think that the quality of  administration is an issue in this case.  GRANT:  I agree with that.  COURT:  It doesn't lead us anywhere, and I don't think it's  a relevant issue.  GRANT:  I think I agree with that, my lord.  COURT:  Now, if I were king and I could make the laws, I  think I would amend the act and I would give the  judges a discretion about who can swear one of these  affidavits.  But it does not seem to me that the  sections Mr. Macaulay read out provide any discretion.  It is not a question of the knowledge of the witness  regarding the documents or the contents of them or the  underlying circumstances giving rise to the documents.  THE  MR.  MR.  THE  MR.  THE 23083  Submissions  1 It's a question of whether they are in the custody  2 that the sections describe, and if they are, then it  3 seems to me that there is an absolute right to --  4 subject to relevance, but I think that's been  5 demonstrated -- to admit them into evidence.  It's  6 perhaps one of the failings, but it may be the  7 strength of our system, unlike the continental system  8 where the court manages the flow of evidence.  9 In our system it's left to counsel and not to the  10 court to decide which witnesses will be called and  11 which ones will not be called.  In civil cases, as I  12 understand Phillips versus Ford Motor Company, the  13 court has no jurisdiction whatsoever to call a witness  14 or to require a witness to be called.  That being so,  15 it seems to me that my limited jurisdiction here is  16 to -- is to admit these documents into evidence if  17 there is an affidavit.  I'm not even sure there's a  18 right of cross-examination, but that's not being  19 opposed and I won't get into that.  20 MR. MACAULAY:  We're not opposing that.  21 THE COURT:  Pardon?  22 MR. MACAULAY:  We're not opposing —  23 THE COURT:  That's what I say you're not opposing that, so I  24 don't need to get into it.  But I don't think I have  25 the right to substitute one deponent for another.  I  26 think the reason for that is in any office some  27 persons may be assigned certain responsibilities, and  28 Mrs. Peters or Ms. Peters or Miss Peters, as the case  29 may be, has obviously from her affidavit been given a  30 certain responsibility, and she has examined the  31 files, and I don't know whether the other lady has  32 done the same or could make the same affidavit, but  33 the fact of the matter is that this lady has prepared  34 herself to swear this affidavit.  She has done so and  35 I think the statute forecloses my intervention in that  36 process.  I think when she withstands  37 cross-examination on the question of custody then I  38 have no choice but to admit the documents, unless some  39 argument is made regarding relevance, but I think  40 we're past that as well.  That being so, I must, and  41 in this case with considerable reluctance, decline to  42 adopt Mr. Grant's suggestion that someone else should  43 be cross-examined.  44 There is another reason.  There is nothing about  45 which that lady could be cross-examined, no affidavit,  46 and I do not think that I have any jurisdiction to  47 require her to furnish an affidavit.  Counsel have 23084  Submissions  1 decided who will tender this evidence and, as I say,  2 that may be a strength and it may be a weakness of the  3 system, but that's the hand of bridge that we're dealt  4 with and that's the hand we have to play.  I will  5 order the cross-examination on the affidavit and I  6 think I have no authority to do anything beyond that.  7 MR. GRANT:  My lord, I just ask, if my friend wants to reserve a  8 number, I'm not going to take exception, but that it  9 not be tendered until the cross-examination is  10 completed.  11 THE COURT:  I think that's all right.  The number will be 1237  12 A, B, and C.  Right, Mrs. Thomson?  13 THE REGISTRAR: Yes, my lord.  14  15 (EXHIBIT 1237 A, B, C:  Reserved)  16  17 THE COURT:  1237 A, B, and C. I'm sorry I can't help you, Mr.  18 Grant.  19 MR. GRANT:  I'll consider what you've said and also how else we  20 can handle this matter.  21 THE COURT:  Thank you.  22 MR. MACAULAY:  There is another will, my lord.  It was  23 provided -- this particular will was provided for my  24 friend and that's what I thought -- at the same time  25 as all the others, but when we came to the question of  26 proof of it we looked at the file and we found that  27 what we had was an unsigned copy of a draft will.  If  2 8 I could hand the document up to your lordship.  2 9 THE COURT:  Yes, I have it.  30 MR. MACAULAY:  There's a solicitor's letter, Messrs. Metzger and  31 Smyth, and it's Mr. David Smyth who wrote in 1975  32 enclosing a copy of his client, Mr. Wallace Barnabas  33 Morgan's, will.  I believe your lordship has heard  34 some evidence about Mr. Morgan, Mr. Wallace Morgan.  35 He had an extensive trapline and there was a good deal  36 of evidence about him.  Then more recently an executed  37 copy reached us in circumstances where we can't  38 provide the usual custodial affidavit.  I then tried  39 to get hold of Messrs. Metzger and Smyth and I've  40 discovered they're both provincial court judges.  41 THE COURT:  Yes.  42 MR. MACAULAY:  I don't know where their file is now.  I'm trying  43 to find out.  In the circumstances what I would  44 suggest to your lordship is that this file, and it's  45 the -- in the Wallace Morgan departmental file which  46 is closed, be marked for identification pending our  47 further search and our communication with Messrs. 23085  Submissions  1 Metzger -- Judges Metzger and Smyth so that we can  2 determine whether what we've got now, that is, the  3 signed copy -- we have what appears to be an executed  4 will.  5 MR. GRANT: Where, in this file?  6 MR. MACAULAY:  No, no, no, in our office.  In my office.  As I  7 say, it came to me in circumstances where I can't get  8 an affidavit yet.  I hope to get the necessary  9 affidavit from Judge Smyth.  10 THE COURT:  Well, who are the witnesses on the executed copy?  11 MR. MACAULAY:  There's another thing, you see, we can't get  12 ahold of the executor.  He is a plaintiff and we can't  13 speak to the executor.  14 THE COURT:  Yes.  15 MR. MACAULAY:  And on the executed copy there is a signature, it  16 looks like Metzger.  He's styled as a barrister of  17 Prince Rupert.  It looks like Judge Metzger's  18 signature, and his secretary's signature, Diana  19 Selkirk, a secretary of that office.  I suppose we  20 could try to find her.  And it purports to have been  21 made on the 9th of June, 1975.  As I say, we'd  22 originally enclosed it and then in going through with  23 the deponent included in our collection, it became  24 apparent that she couldn't swear to this.  She could  25 deal with this file, you know.  We can get an  26 affidavit from her about the file.  2 7 THE COURT:  Yes.  28 MR. MACAULAY:  But, as I say, all we've got in the file is the  29 unexecuted copy that Metzger and Smyth sent us.  So it  30 looks as if we will have to deal with either Smyth or  31 Metzger about that one.  32 THE COURT: Well, it doesn't sound like Mr. Smyth would help,  33 does it?  34 MR. MACAULAY:  No, it doesn't.  He's the one that sent the  35 letter. That's all. He might know where the file, if  36 any, is and what's been done.  37 THE COURT:  My preliminary view is that the file is no good  38 without an executed will, and if the executed will is  39 available then the file is no use, that is, no  40 additional use except perhaps to fix a date, but I  41 doubt it.  So it seems to me that your -- it's not a  42 question of proving the will by secondary evidence, as  43 in the Lord St. Leonard's case, or something of that  44 kind.  It seems to me the traditional way to prove the  45 will is to call the witnesses.  4 6 MR. MACAULAY:  Yes.  47 MR. GRANT:  I would also want to point out that I do not have -- 23086  Submissions  1 I don't have and I've never seen what my friend  2 purports is the executed copy of the will.  3 MR. MACAULAY: It's the same as the other.  4 MR. GRANT:  Well, I'd like an opportunity —  5 THE COURT:  Is it dated?  6 MR. MACAULAY:  Yes, it's dated.  It's the 9th of June, 1975.  7 THE COURT: Yes.  Well, I think you have what may be a relatively  8 simple or exceedingly difficult evidentiary problem.  9 MR. MACAULAY:  Could we -- because they go in sequence, it would  10 be easier a few months from now to deal with them in  11 sequence.  Could a number be reserved for the Wallace  12 Barnabas Morgan will?  13 MR. GRANT:  Well, in light of the fact that my friend until this  14 moment hasn't even delivered this will to me, I'd just  15 as soon he leave it and he send me a copy of the will,  16 that is, the executed one, and we deal with it --  17 THE COURT:  Well, I'll reserve a number.  It can be 1237 D.  18  19 (EXHIBIT 1237 D:  Reserved)  20  21 MR. MACAULAY:  Thank you, my lord.  We did include, as I said  22 before, a copy of this will in our original collection  23 a month -- when we sent it a month ago to -- whenever  24 we sent that to --  25 MR. GRANT:  I assume my friend's referring to the binders, and I  26 looked there and this one my friend just talked about  27 is not there.  I don't have it.  28 MR. MACAULAY:  He hasn't got the signed one, that's right.  He's  29 got the unsigned one.  3 0    MR. GRANT  31 THE COURT  32 MR. GRANT  I haven't got an executed will.  You have a copy.  No, I don't have a copy of the executed will.  I  33 didn't know there was an executed will until my friend  34 just explained at this moment.  35 MR. MACAULAY:  He has an unsigned copy.  36 MR. GRANT:  I have an unsigned -- I have what you have in the  37 binder.  3 8    THE COURT  3 9    MR. GRANT  4 0    THE COURT  Yes.  All right.  Nothing more.  Yes.  All right.  41 MR. MACAULAY:  Well, we may be able to get something from the  42 judge.  43 THE COURT:  Yes.  There is a tradition that judges aren't asked  44 to give evidence if an affidavit will do, but that's  45 up to counsel.  They're not immune.  46 MR. MACAULAY:  I'm going to ask the judge to make an affidavit,  47 and if -- my friend can take whatever position he 23087  Submissions  1 considers appropriate then.  2 There is another custodial affidavit and a group  3 of documents, my lord.  It's -- could I hand this up  4 to your lordship?  I've got a nice -- and I'm going to  5 ask that the one in the red binder be marked.  It's  6 the same thing.  These are ONC documents.  Your  7 lordship's heard about these before.  They're the  8 collection of the statements or expressions of claim,  9 whatever you want to call it, by the various tribal  10 councils to the Office of Native Claims.  The  11 affidavit -- there's a custodial affidavit of Marie  12 Josephe Ladouceur, a member of the public service, who  13 was the secretary at the Office of the Comprehensive  14 Land Claims in Vancouver, and she's responsible for  15 the filing system at the office.  She files all  16 incoming and outgoing and has custody of the files.  17 She exhibits first the Gitksan-Carrier declaration of  18 November 1977.  That's Exhibit 340 actually, my lord.  19 THE COURT:  Yes.  20 MR. MACAULAY:  Also a letter from the honourable Hugh Faulkner  21 to William Blackwater December 13th, 1977.  Mr.  22 Faulkner was then Minister of Indian Affairs, I  23 believe, and he says that "On behalf of the Honourable  24 Iona Campagnolo and myself", he wished to thank the  25 Tribal Council, and accepted the claim for  26 negotiation.  And then Exhibit C is a letter from Mr.  27 Fleury to John Munro, the Honourable John Munro, dated  28 April 16th, 1982 — Mr. Munro was then the Minister of  29 Indian Affairs -- enclosing the declaration and map  30 from the Carrier-Sekani Tribal Council.  And that is  31 on our documents list and also has been -- has been  32 for years.  Exhibit D is a letter from Mr. Munro to  33 the president of the Carrier-Sekani Tribal Council of  34 December '83 accepting the claim for negotiation.  And  35 E is the similar material from the Tahltan.  F is the  36 letter of acceptance.  G is the Tsimshian map.  H is a  37 letter from Mr. Hill and Mr. Bolton to ONC and  38 enclosures, and H is the -- includes the declaration  39 of the council of the Tsimshian nation in which they  40 claim ownership and -- title and ownership to  41 territories illustrated in their map.  I is a letter  42 from Mr. — the Honourable Bill McKnight in 1986.  Mr.  43 McKnight was by that time Minister of Indian Affairs  44 and he was accepting the Tsimshian claim.  J is the  45 map of the Kaska Dena Council outlining their claim,  46 and K is the Kaska Dena Council's claim submitted on  47 February '82.  L, a letter from Mr. Munro accepting 230?  Submissions  1 the Kaska Dena claim.  M, petition signed by Mr. Peter  2 Williams, who was president of the Kitwancool Band,  3 dated October 17th, '77.  You'll notice this is an  4 exhibit for identification.  5 THE COURT:  Does the Kaska Dena claim overlap with the claim in  6 this case?  7 MR. MACAULAY:  Yes, my lord.  8 THE COURT:  Does it?  9 MR. MACAULAY:  We say it does.  10 THE COURT:  Yes.  All right.  11 MR. MACAULAY:  Not very much, but it does.  And N is Mr.  12 Faulkner's letter to Mr. Williams accepting the  13 Kitwancool claim, and then 0 is the letter from Mr.  14 Richard Morgan.  He's the executor of that will I just  15 mentioned.  16 THE COURT:  Yes.  17 MR. MACAULAY:  Of Wallace Morgan's will, unless there are two  18 Richard Morgans.  And he is writing as the chief of  19 the Kitwanga Band making a claim on behalf of Kitwanga  20 in 1978.  And P is Mr. — another letter from Mr.  21 Morgan.  If I might take a look at P.  It's another  22 letter to Mr. Faulkner, the Minister, advising that  23 the Kitwanga Band representatives wanted to travel to  24 Ottawa to see him about this.  Q are documents  25 relating to the Kitwanga comprehensive claim.  These  26 have been on our list since the beginning of time.  I  27 notice that they're in the 230 series.  R is a letter  28 from Mr. Faulkner to Mr. Morgan, and the Minister  29 there acknowledges the two earlier letters from Mr.  30 Morgan in which, as the Minister recites:  31  32 "...you informed me of the decision to seek a  33 settlement of your land claim independently of  34 the Gitksan-Carrier Tribal Council and in which  35 you requested a meeting to discuss funding of  36 your claim."  37  38 And the Minister goes on:  39  40 "The decision on who will represent the Band's  41 interests in negotiations on its land claim is  42 a decision solely for the Band to take.  At the  43 same time, it is my responsibility to inform  44 you of my concern over the decision of any band  45 to proceed independently in negotiations to  46 seek a settlement of its claim."  47 23089  Submissions  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  MR.  THE  MR.  THE  MR.  THE  MR.  THE  MR.  THE  MR.  And he says why that would not be desirable, and  he asks Mr. Morgan to communicate his observations to  the band council.  Interestingly enough, Mr. Faulkner  made similar observations, so he says, in his letter  to the Kitwancool Band, but apparently that didn't  deter the Kitwancool.  Then there's a letter from Mr. Morgan to Mr.  Faulkner following a discussion between Mr. Morgan and  his associates, and Mr. Hartley, the Special Claims  Representative, in which he says:  "We are still maintaining our position and  our choice is to go to individual Band route,  we are hereby requesting that you will consider  approving our previous advance loan on Land  Claims..."  Et cetera.  It is a letter addressed by Mr. Faulkner  to Mr. Morgan in which Mr. Faulkner repeats his  concerns, and especially about the implication of  funding many separate bands to develop and negotiate  claims independently.  Mr. Faulkner says it would be  prohibitively expensive.  And those are the exhibits referred to in Marie  Ladouceur's affidavit.  She says that --  COURT:  Excuse me, Mr. Macaulay.  Is this opposed, Mr.  Grant?  GRANT:  I have something to speak to.  through the affidavit though.  I  like to raise with your lordship  COURT:  All right.  MACAULAY:   She says, anyhow, finally,  ordinary course of business of the Department, the  Department through its employees:" received all these  documents and they keep those documents and they  prepared these copies of several documents, and so on  COURT:  All right.  MACAULAY:  And that's it.  COURT:  You're tendering the affidavit and the book of  documents?  MACAULAY:  Yes, my lord.  COURT  PLANT  COURT  MACAULAY:  Some of them — a few you'll see from the  source -- the column called source, a few of them are  He doesn't have to go  have some terms I'd  "In the usual and  Yes, Mr. Plant?  I have no submission to make, my lord.  Thank you.  exhibits now. 23090  Submissions  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  MR.  THE  MR.  MR.  THE  MR.  THE  MR.  MR.  MR.  THE  MR.  THE  MR.  COURT:  Yes.  MACAULAY:  They're all identified as to document list  number.  In some cases they're in two document lists.  COURT:  What does "EXH" mean?  It sounds like exhibit  something.  GRANT:  I think so, my lord.  MACAULAY:  Yes.  Exhibit H to the affidavit of Marie  Ladouceur.  COURT:  Oh, I see.  All right.  MACAULAY:  Her exhibits are A to it.  COURT:  Yes.  All right.  GRANT: Are you finished?  MACAULAY:  Yes.  The submission will be longer now, my lord.  GRANT:  I was just going to give my friend the brown  envelope and let him read it.  Firstly, my lord --  COURT:  I've heard of giving your learned friends a lot of  things, but never before the brown envelope.  GRANT:  I don't necessarily wish to argue this now, but I do  want to reserve the plaintiffs' right to argue  relevance here.  These are claims.  These are not --  there is nothing proven.  I don't think the defendants  have proved anything, and we're going to reserve our  right on that, but I don't need to deal with that.  The second point is, and I think my friend is well  aware of this, that we've taken the position that we  wish to cross-examine Madam Ladouceur and we propose  that that cross-examination take place next week. And  I do not believe that my friends are opposed to that.  They are aware of that position.  MACAULAY:  My lord, we do not oppose the cross-examination.  Next week might prove a difficulty.  GRANT:  We can work that out.  MACAULAY:  Either she has recently been delivered of a child  or is about to, and that's why I make the  qualification.  We'd suggested next week as the out of court  cross-examination.  We can work around that.  COURT:  Yes.  All right.  GRANT:  But what we do ask, my lord, is that my friends, now  that they have tendered this document as an exhibit,  produce prior to the cross-examination of Madam  Ladouceur, the complete files with respect to these  claims held by the Office of Native Claims.  My  friends, if they are now saying that these documents  are relevant, that is, relating to these specific  claims, cannot say "Well, we take out of the file  MR.  MR.  MR.  MR. GRANT 23091  Submissions  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. GRANT  THE COURT  MR. GRANT  those that we think are relevant, but some others are  not."  And we are requesting production of those  documents for the plaintiffs prior to our  cross-examination because there may be documents in  there that relate to the very issues that my friends  are arguing here, and they cannot be at liberty, with  respect, to hold back and say "Oh", as my friend Miss  Koenigsberg said a few weeks ago, "Well, you know,  it's marginally relevant."  And that was -- well, the  case with the Kwakiutl, that's the Kwakiutl claim.  Nobody's tendered the Kwakiutl claim as relevant here,  but here we're talking the very first one is the  Gitksan-Carrier declaration.  And my friends, and as  my friend has said, some of these documents are very  young or small numbers, but the files have not been  disclosed, and those files we wish disclosed.  My friends cannot have it both ways with respect  to these particular documents.  They've put them --  they've put them in issue.  They're relying on them in  evidence, and they can't pick and choose.  We want the  entire federal files relating to those claims, only  those claims that they say are in issue.  Those are  the files that we're seeking.  And we will -- we seek  my friends to produce those files prior to the  cross-examination so we'll have an opportunity to  review them.  I don't for a moment suggest that they  would all go in evidence.  I don't know.  Our hands  are completely tied and my friends have picked and  choosed out of files what they find advantageous and  relevant to themselves, and we, in order to deal with  this, must have the balance of the file and not --  that's my submission, and of course the  cross-examination my friends knew about and we'll  arrange the timing of that.  And depending on that we  may -- we reserve our right on the issue of relevance,  but -- and my friends can reserve a number for this.  I ask that it be dealt with the same way as the last  group of files, the last -- the estate files.  All right. The affidavit will be 1238 reserved.  1238 which?  That will be the reserved number.  Okay.  (EXHIBIT 123?  Reserved)  THE COURT:  And the binder will be 1238 A, reserved. 23092  Submissions  1 (EXHIBIT 1238 A:  Reserved)  2  3 MR. GRANT:  Thank you, my lord.  4 THE COURT:  All right.  Mr. Plant, any submission on Mr. Grant's  5 submission?  6 MR. PLANT: I'm interested to know when my friend proposes that  7 this issue of relevance be argued.  I'm just bearing  8 in mind the passage of time and I'm wondering whether  9 this is something that's going to happen in final  10 argument or something that's going to happen in the  11 next week or two or tomorrow or when.  12 MR. GRANT:  Well, with respect to that point, all I was doing,  13 my lord, is raising -- protecting our right to argue  14 relevant ultimately, but it may well be that after the  15 cross-examination that we won't pursue that.  I don't  16 think we're in a position to argue that now, but I  17 didn't want my agreement that this number be reserved  18 to suggest that we concede that this is all relevant.  19 We want to reserve that position, but that can be  20 dealt with after cross-examination of the witness and  21 then we can advise our friends of what our position is  22 relating to that.  23 THE COURT:  All right.  24 MR. GRANT:  So I just wanted to protect my position.  It may  25 ultimately not have to be argued at all.  26 MR. MACAULAY:  I don't want it to be taken to agree that we'll  27 produce all those files.  We have gone through those  28 files and have determined that only a certain number  29 of documents are relevant and we disclosed them years  30 ago.  We delivered this affidavit a month ago or so,  31 about a month ago along with the documents, and this  32 is the first we've heard of that proposition.  I don't  33 suppose since -- I know from what I read in the  34 newspapers that only one negotiation has been going on  35 all these years and that's the Nishga negotiation.  36 There may be tons of documents, and if my friend  37 presses the point, then your lordship will have to --  38 we may refuse to disclose them.  They're -- on the  39 grounds of relevance, and I suspect we will decline to  40 disclose other documents if there are any other in  41 these other files that have been lying dormant now for  42 years because they have nothing to do with the case.  43 Now, why the Gitksan will want to see them I don't  44 need to speculate about that.  45 THE COURT:  All right.  Well, I'm going to reserve a number as  46 I've said.  I'm going to order the cross-examination  47 as it's not opposed and I'm going to leave open the 23093  Submissions  1 question of the production of these other documents.  2 It seems to me that if one strips away the periphery  3 here we're down to a simple question of a challenge by  4 the plaintiff to the -- or failure thus far of Canada  5 to produce certain documents in files from which these  6 have been selected.  7 Now, I can readily conjure up scenarios where  8 counsel with perfect understanding would go through a  9 file and pick out those documents which are relevant  10 and very properly be able to say that the rest of the  11 documents are not relevant.  If that were the case,  12 then I would -- and if I were in a position to make  13 that determination, I would object to Mr. Grant's  14 suggestion.  On the other hand, it may be that counsel  15 then, with all respect to those who have been assigned  16 to this task, have not approached the question of the  17 other documents with perfect understanding of the  18 issues or with perfect judgment, and that there are in  19 those documents some not yet disclosed which might be  20 relevant.  That's a common enough occurrence in  21 lawsuits.  It happens all the time, and it's happened  22 several times in the course of this trial.  When that  23 happens the court relies upon the good offices of  24 counsel to define an issue for argument and, if  25 necessary, for inspection by the court.  As Mr.  26 Macaulay just said, possibly or partly in terrorem, it  27 may be that I will have to look at all these  28 documents, heaven forbid, but if that's what's  29 required, then that's what's required.  But I don't  30 think that counsel have yet framed an issue for me to  31 decide in connection with these other documents.  32 I haven't heard from Mr. Grant on the relevance of  33 these documents, but he says that maybe when he  34 cross-examines he will not pursue his submission based  35 upon relevance against the admissibility of these  36 documents.  I will await counsel's endeavours in  37 defining the issue regarding the other documents more  38 closely, and I suppose the first thing that happens in  39 a matter of this kind is for parties to prepare and  40 file an affidavit that will in some way define the  41 problem.  Mr. Grant has applied for access to these  42 documents and these files from which these particular  43 documents have been extracted, and I think if Mr.  44 Grant wants to pursue the matter, then Mr. Macaulay or  45 his associates will have to satisfy themselves that  46 there are no documents in those files that are  47 relevant, which I suppose they've already done, and 23094  Submissions  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR.  THE  MR.  THE  MR.  THE COURT  MR.  THE  MR.  THE  MR.  MR.  THE  then to produce an affidavit that defends their  refusal or failure to produce the rest of the files.  MACAULAY:  My lord —  COURT:  When that happens, I will have to then deal with the  problem.  MACAULAY:  My lord, we're going to have another look at  them, of course, now that this has arisen, and if we  find some document or documents -- as I say, no  request was made, and we had these produced for years.  COURT:  Yes.  MACAULAY:  No request has been made.  Mr. Grant hasn't come  to us and said "Look, I know there's a certain  category of documents generally in those files and if  the Kaska Dena or, you know, these other files have  got that kind of document, I want to see it."  Well,  that's easy to cope with.  Then you go to that kind of  document and look for it.  I think Mr. Grant ought to  be required to give us some indication of the kind of  thing that he's looking for.  He acts for a tribal  council or acted for a tribal council, and they have  one of these claims going.  He has a better idea than  I do what's likely to be found in those files.  Well, that's all right for the Gitksan comprehensive  claim, but I don't know about the others.  MACAULAY:  Well, I suppose they're much of a muchness, those  files.  They might be.  You see --  Some bigger than others.  Well, of course, my lord.  That's one of the  problems.  We did not make the demand because we  anticipated our friends would resist, as Miss  Koenigsberg did resist, and it was my friends that  have raised it by putting this affidavit before the  court, and my friends that are wanting to have that  both ways.  We have not the file on the Gitksan, but  if you look, my lord, at exhibit --  Mr. Grant, I don't think there's any point in  pursuing this.  I have indicated generally what I  think has to happen, and you people have to define the  matter more precisely, and then I will have to either  give directions or make some inspections or make some  directions, I don't know which, but --  Well, we --  -- madam reporter's weary and it's time that we took  a break and gave her some respite.  Do we have more  things to do this afternoon?  COURT  GRANT  COURT  GRANT  THE COURT  GRANT  COURT 23095  Submissions  1 MR. MACAULAY: Not many, but there's a couple.  2 THE COURT:  All right.  Well, we'll take the afternoon  3 adjournment now.  4 THE REGISTRAR: Order in court. Court stands adjourned for a  5 short recess.  6  7 (PROCEEDINGS ADJOURNED FOR THE AFTERNOON RECESS)  8  9 I hereby certify the foregoing to be  10 a true and accurate transcript of the  11 proceedings herein transcribed to the  12 best of my skill and ability.  13  14    15 Tanita S. French  16 Official Reporter  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 23096  Submissions  1 (PROCEEDINGS RESUMED AT 3:25)  2  3 THE REGISTRAR:  Order in court.  4 MR. GRANT:  My lord, if I can speak to a matter.  There were two  5 letters; one was received September 18th, 1984 and the  6 other July 10th, 1985 from Mr. Morrison, Mr. James  7 Morrison, to Mr. Mclntyre relating to a similar nature  8 to those documents that I put to Mr. Mclntyre, and  9 basically I had anticipated that they were here, and  10 when I looked I couldn't locate them at the break this  11 morning, and they were sent up to me this afternoon.  12 And I've shown them to both my friends.  There's no  13 dispute that these documents could have been put to  14 Mr. Mclntyre and they came out of the files he was  15 dealing with, and I would ask that they be marked as  16 exhibits as though they were exhibits at that.  17 THE COURT:  Do they relate to one of the tabs in Mr. Mclntyre's  18 book?  19 MR. MACAULAY:  Yes, my lord.  Yes.  Actually that's -- that would be a way --  Why not just insert them in the appropriate tab.  That would be -- just a moment.  That could be in  23 tab -- tab 43, my lord.  24 THE COURT:  All right.  25 MR. GRANT:  So if my friends don't object, they can go in at  26 that tab.  27 THE COURT:  All right.  28 THE REGISTRAR:  Behind the application?  29 MR. GRANT:  Behind the application is fine.  I didn't —  30 September 18th, 1984 letter from Mr. Morrison to Mr.  31 Mclntyre and the July 10th, 1985 letter from Mr.  32 Morrison to Mr. Mclntyre.  And that's the date of  33 receipt.  34 THE COURT:  There being no objection, they may be placed in Mr.  35 Mclntyre's book, which was Exhibit --  36 THE REGISTRAR:  1231, my lord.  37 MR. GRANT:  Tab 43.  38 THE COURT:  Tab 43, thank you.  Mr. Macaulay.  39 MR. MACAULAY:  My lord, the next matter, the last matter I would  40 like to deal with this afternoon, is a -- the  41 transcript of the commission evidence of David  42 Gunanoot.  This is a transcript of his evidence on  43 October 7th, 1987.  Mr. Gunanoot was being examined by  44 Miss Russell and gave certain evidence, and there were  45 two exhibits.  One is an application for registration  46 of a trapline.  47 THE COURT:  That would be Exhibit 1?  2 0    MR. GRANT  21 THE COURT  22 MR. GRANT 23097  Submissions  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR.  THE  MR.  THE  MR.  THE  MR.  THE  MR.  THE  MR.  THE  THE  THE  THE  MR.  THE  THE  MR.  THE  THE  THE  MR.  THE  MR.  THE  MACAULAY:  Looking for that.  It's — I'm sorry, I better  deal with the other one first.  That was marked as  Exhibit 6.  This is a continuation of an examination,  and this transcript never got put in.  The trapline  application was marked as Exhibit 6 at page 4 of that  transcript, and then there is a form of will of Daniel  Skawill, and Mr. Gunanoot was one of the two witnesses  to the will.  COURT:  S-K-A-W —  MACAULAY: S-K-A-W-I-L-L. The will dated January 12th,  1945. And that was marked as number 5, actually,  Exhibit 5 to that examination.  COURT:  Now, this is a continuation of an earlier transcript  or earlier examination which has already been put in.  MACAULAY:  Yes, my lord.  COURT:  Do we know the number?  WOLF:  Exhibit 72, I believe, my lord.  COURT:  72?  WOLF:  Yes.  COURT: Was that a single number of exhibit or numbered  exhibit, or did it have other volumes?  WOLF:  I believe there may be four or five exhibits to that.  REGISTRAR:  Exhibits A, B, C, and D, volume 1 — 72C is a  feast book, David Gunanoot, 72D is a feast book,  Charles Gunanoot.  COURT:  This doesn't sound like the right exhibit number.  72A is commission evidence of David Gunanoot and  is commission evidence of David Gunanoot.  This should be 72C then.  REGISTRAR:  72B volume 3  COURT: All right.  MACAULAY:  No, E.  REGISTRAR:  No, it carries on, 72E, 72F.  COURT:  All right.  Then it will be 72B-1.  Will that do it?  MACAULAY:  The transcript?  COURT:  Yes.  72B was a volume of two transcripts?  REGISTRAR:  72A is volume 1, 72B is volume 2.  COURT:  All right.  So this should be 72-2-1 so that we can  continue on afterwards -- or 72B-3 might be better --  72B-3, all right.  And then the exhibits 5 and 6, as  were mentioned, I suppose, should be 72B-3-5 and -6.  Sorry, my lord, could you run that by me again.  Yes.  The transcript will be 72B-3, and the exhibits  will be 72B-3-5 and -6.  I don't object to that going in, my lord.  All right.  GRANT:  COURT:  GRANT:  COURT:  (EXHIBIT 72B-3 - Transcript (vol,  Gunanoot D. October 7, 1987)  3)  David 2309?  Submissions  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  MR.  (EXHIBIT 72B-3-5 - Will - Daniel Skawill)  (EXHIBIT 72B-3-6 - Application for trapline  register, David Gunanoot)  MR. MACAULAY:  There remains the question of the six volumes of  the Loring reports.  Mr. Grant has just told me that  he's been busy with other things and that he would  like to put that over.  I hope it doesn't go over too  far, too long.  COURT:  What do we have to do tomorrow?  MACAULAY:  Well, there -- tomorrow I will be putting in this  collection of historical documents -- collections, not  one collection, but a series of little collections of  them.  And then there's also an amended book regarding  map 29, the reserves map, which we agreed -- on which  we agreed to delete certain references to the tribal  council.  So that will have to be done.  COURT:  All right.  MACAULAY:  And there's something about the railways, indices  on the railways.  I don't think I need to know with any great  precision.  There's enough to make it worthwhile to  convene tommorrow morning?  There's a number of issues that my friends have  pleaded.  MR. MACAULAY:  Well, there's an argument to be made by —  THE COURT:  Mr. Guenther.  MR. MACAULAY:  Mr. Guenther.  THE COURT:  Yes.  MR. MACAULAY:  An important one.  MR. GRANT:  And Mr. Rush, there's some matters he wishes to deal  with tomorrow as well.  THE COURT:  Sounds like —  MR. GRANT:  We will have an entertaining morning, my lord.  THE COURT:  You have nothing else you want do this afternoon?  MR. MACAULAY:  No, my lord, there's nothing I can do this  afternoon.  THE COURT:  All right.  Ten o'clock tomorrow morning.  THE REGISTRAR:  Order in court.  Court stands adjourned until  ten o'clock tommorrow morning.  THE  MR.  THE COURT  MR. GRANT 23099  Submissions  (PROCEEDINGS ADJOURNED)  I hereby certify the foregoing to be  a true and accurate transcript of the  proceedings herein transcribed to the  best of my skill and ability  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  Graham D. Parker  Official Reporter  United Reporting Service Ltd.

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