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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1987-06-25] British Columbia. Supreme Court Jun 25, 1987

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 1817  1 Smithers, B.C.  2 June 25th, 1987  3  4        (PROCEEDINGS RECONVENED PURSUANT TO AN ADJOURNMENT)  5  6 THE REGISTRAR:  Order in court.  In the Supreme Court of British  7 Columbia, this 25th day of June, 1987, Delgamuukw and  8 others and Her Majesty the Queen.  9 THE COURT:  Mr. Rush, a small matter.  I don't think the video  10 tape that was shown on Tuesday was marked as an  11 exhibit.  12 MR. RUSH:  It wasn't.  13 THE COURT:  Should it be marked?  14 MR. RUSH:  It should be, and what I'm going to ask your lordship  15 to do is to grant me leave to have it copied.  It was  16 the only copy that I have, but I've been carrying it  17 around with me for a few days to have it marked.  18 THE COURT:  All right.  19 MR. RUSH:  But I would like permission to have it released for  20 the purpose of copying.  21 THE COURT:  That will be the next exhibit number, Madam  22 Registrar.  23 THE REGISTRAR:  Sixty-seven.  24  25 (EXHIBIT 67:  VIDEO TAPE)  26  27 THE COURT:  I'm sure your friends don't object to having it  28 copied, do you, gentlemen?  29 MR. GOLDIE:  No objection.  3 0 MR. MACAULAY:  No, my lord.  31 THE COURT:  All right.  Thank you.  Mr. Grant.  32 MR. GRANT:  Yes, my lord.  Towards the end of yesterday, when we  33 were dealing with the question of place of trial, you  34 said that -- you indicated at the end that you think  35 that if counsel need to know, your present ruling is  36 that we will reconvene in September in Vancouver, "and  37 I'll be glad to hear counsel at any time as to special  38 circumstances that should lead me to change that  39 decision."  I'd like to raise special circumstances at  40 this time for your consideration with respect to that  41 decision.  42 My lord, the court's ruling that the trial  43 reconvene in September in Vancouver has critical  44 implications for the Plaintiffs.  45 THE COURT:  Well, just a minute, Mr. Grant.  Before you embark  46 on that subject again, may I state my understanding  47 and recollection of the facts, which were that when 1818  1 Mr. Rush persuaded me to open this trial in Smithers,  2 which is not a place where the court regularly sits, I  3 indicated that the court would at his request allow  4 the Plaintiffs to open their case in Smithers and take  5 some of the local witnesses, and I made it abundantly  6 clear, and I'm sure there is a transcript of the  7 proceedings -- I shouldn't say I'm sure — there is a  8 transcript of some of the proceedings, but I'm sure  9 that I made it abundantly clear that the court would  10 not be sitting in Smithers for the whole trial and  11 that it would be for the trial judge to decide how  12 long the trial would continue in Smithers.  13 I recall again the matter coming up at several  14 pre-trial conferences, and I recall again specifically  15 stating that it was not the intention of the court to  16 sit for any prolonged period of time in Smithers, and  17 I think that I made it abundantly clear, and counsel  18 can correct me if I'm wrong, but I made it clear that  19 the purpose of opening the trial in Smithers was to  20 have the case opened here and to hear some local  21 witnesses, if it was convenient to do that, but that  22 it was always made expressly clear that the time that  23 the court would spend sitting in Smithers would be  24 limited.  25 Now, those are the facts as I understand them.  26 Now, if we're at cross-purposes in that connection, I  27 think that should be resolved in the first instance.  28 Now, if anyone disagrees with that very brief  29 recapitulation of my recollection of the  30 circumstances, I'd be glad to hear from them.  31 I must say, Mr. Grant, it comes as a surprise to me  32 that it seems to have been taken as a matter of  33 surprise to counsel, and obviously to your clients,  34 that the trial would now be moving to Vancouver, where  35 it regularly sits, and I hope that the Plaintiffs have  36 been informed of that history.  37 MR. GRANT:  My lord, I do agree, and counsel for the Plaintiffs  38 do agree that comments with respect to the place of  39 trial were made at the pre-trial and there was  4 0 comments that the -- that the trial judge may move the  41 trial.  It was never suggested, my lord, with respect,  42 that the evidence of the Indian witnesses would be  43 required to be given in Vancouver.  It was never --  44 and that's the first point.  45 THE COURT:  I'm sorry, Mr. Grant, but I simply don't agree with  4 6 you on that.  47 MR. GRANT:  Well, it certainly -- we were very alert to the fact 1819  1 that there was suggestions made, as I believe by Mr.  2 Goldie at some points, that when it came to expert  3 evidence, when it came to evidence of the Defendants,  4 that it would move, and there was no suggestion as to  5 when.  The second point is that it was never suggested  6 that the trial in Smithers would be limited to five  7 weeks.  There was no time ever set on it.  8 Also, my lord, with respect to yesterday's  9 comments, it was my understanding that what you had  10 raised concerning the location of the trial in  11 September was with respect to the place of the trial  12 in the month of September.  That was my understanding.  13 And I opened my remarks by saying that whatever method  14 of organization would occur, it appeared to me that  15 there would be Indian witnesses in September, and we  16 would still be in the Plaintiff's case in September no  17 matter what process was developed.  Those two --  18 and -- and I dealt --  19 THE COURT:  No doubt about that.  20 MR. GRANT:  I dealt expressly with the trial in September  21 yesterday.  The court at the end of yesterday, as I  22 have indicated, stated that you would be glad to hear  23 counsel at any time as to special circumstances that  24 should lead you to change your decision.  We took that  25 as an invitation by you to consider the matter with  26 further submissions.  27 THE COURT:  Oh, I have no hesitation at all to hear your further  28 submissions, Mr. Grant, but what I am troubled by is  29 the apparent surprise being shown by your clients and  30 their supporters of the fact that the trial is being  31 moved to Vancouver.  I don't find it tenable that they  32 should be surprised by that.  33 MR. GRANT:  Well, my lord, with respect, as counsel for the  34 Plaintiffs, we're surprised that you made the ruling  35 yesterday -- in light of the statements made by all  36 counsel that you made the ruling yesterday that it  37 would move -- be moved to Vancouver in September.  I  38 fully expected that you would be raising this matter  39 at some time, but given where we are in the trial and  40 the -- the witnesses that we have heard, I must advise  41 the court that I did not anticipate that in light of  42 the circumstances that have occurred over the last  43 five weeks that you would make that ruling in  44 September.  I -- I do agree and counsel — and there  45 is no question that the question that at some time the  46 trial be moved to Vancouver was mooted, was raised,  47 and we understood that at some point we would have to 1820  THE COURT  9  10  11  12  13  14  15  16  17  18  19 MR.  2 0 THE  21 MR.  22  23 THE  2 4 MR.  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  GRANT  COURT  GRANT  COURT  GRANT  deal with that, but we also understood that at that  point we would be able to raise our submissions.  Well, it would have been better if counsel had  raised the matter earlier then because I have never  had any doubts in my mind that six weeks was a proper  and appropriate time for the court to sit here.  I  wish we'd heard more witnesses.  I've said that  several times.  Probably you're sick to death of me  saying it.  But the way you've chosen to put your case  in, which is entirely your responsibility, has not  made that possible, and that's a matter of some  regret, but the fact remains that the period of six  weeks seemed to me to be such an obvious cut-off point  that I never thought for a minute that there would be  any doubt about the matter, but no one said anything  about it, so finally I thought that I should do so,  and I must say that I am frankly most surprised and  disappointed at the reaction.  Well, I would like to make submissions as --  Yes, by all means.  -- as to the place of the trial in Vancouver in  September.  By all means.  As I commence -- and I just want to say one further  thing, my lord, which is that at the beginning of my  submission yesterday I commented on the fact that when  you very early on proposed a scheduling for the fall,  I -- that you had not said anything in that scheduling  about the place of the trial.  It wasn't on the  schedule, and I -- I just want to raise that as well.  And that's -- that's another factor we had in mind.  Your ruling, with respect, my lord, that the trial  reconvene in September in Vancouver has very critical  implications for the Plaintiffs.  As I've said, the  ruling concluded with a comment that if there were  special circumstances that should lead your lordship  to change that decision, you would hear further from  counsel, and it's our submission that there are  special circumstances, which strike at the integrity  of the trial process and at the very foundation of the  Plaintiffs' ability to continue with the presentation  of their case, which compel us to raise this issue  with the court today for reconsideration.  I'd like to deal firstly, my lord, with the  prejudice to the integrity of the process.  It is a  fundamental precept, my lord, of the common law that  the court process be subject to public scrutiny.  This 1821  1 is the touchstone of the legitimacy of this process.  2 Equally, my lord, as you have heard in the evidence,  3 it is a fundamental precept of the Gitksan and  4 Wet'suwet'en law that statements regarding the rights  5 and titles of the hereditary chiefs, their assertions  6 of ownership of territory, of crests and of histories  7 be publicly witnessed in order that those rights and  8 titles be legitimated, authenticated and validated.  9 Mrs. MacKenzie gave evidence of how that process  10 occurred in the Feast hall.  Both Mrs. MacKenzie and  11 Mrs. Ryan described the importance of the Gitksan  12 witnesses present -- who are present in court while  13 they gave evidence.  14 My lord, with respect, when you look at these two  15 principles, both legal systems, therefore, are ad idem  16 on the central importance of public validation.  This  17 then is an area not of conflict of laws, but one in  18 which the common law and the law governing the Gitksan  19 and Wet'suwet'en people can operate with mutual  20 respect.  21 We submit that while significant Indian evidence  22 remains to be given, moving the trial to Vancouver  23 will render the court process illegitimate under both  24 the common law and the Gitksan and Wet'suwet'en law.  25 The Indian community, whose asserted rights are before  26 the court, will not be able to observe the process.  27 Non-Indian local residents, who will also be directly  28 affected by any adjudication of the issues before the  29 court, will not be able to observe what happens in the  30 courtroom.  By moving the trial to Vancouver, the  31 process will be fatally flawed both from the  32 perspective of the common law and the Gitksan and  33 Wet'suwet'en law.  34 My lord, it is of a special significance to the  35 Plaintiffs that the elders be able to observe the  36 court process.  Many of these people are not in the  37 best of health.  Even the sojourn in Smithers put  38 strains on them, involving, as it does, the daily  39 journey from Hagwilget, Kispiox, Gitanmaax, Gitwangak  40 and Kitsegukla.  But here, at least, they have the  41 support of their families, their close friends and  42 their preferred health professionals.  Here, my lord,  43 there is a network to support, to safeguard their best  44 interests.  We are advised that moving the trial to  45 Vancouver will preclude the participation of many of  46 the Gitksan and Wet'suwet'en elders.  47 My lord, one of the affidavits which I filed this 1822  1 afternoon is an affidavit which I'd ask the court to  2 refer to of Sowiis, or Adeline Holland.  And in her  3 affidavit she states, "I am a community health  4 representative working with the Moricetown . . . Band, "  5 in paragraph one, and then she states that she swears  6 the affidavit is personal knowledge and information  7 and belief.  She has been employed in the field of  8 long-term health care as a homemaker since 1978.  9 Paragraph 3,  10  11 "My present job is to attend to those people,  12 mostly elders, who are sick or who require ongoing  13 attention because of either their age or medical  14 problems who live on the Moricetown Indian Reserve.  15 I go to the homes of these people to see if they  16 need advice concerning medical care.  I check in on  17 many elders regularly, making sure that their  18 environment is healthy and that they are cared for.  19 Many of these elders are Chiefs and Plaintiffs in  20 this action.  21 The elders of Moricetown are cared for  22 within a framework of community services, of which  23 I am but one part.  There is generally trans-  24 portation provided to them in order that they may  25 go into town either for groceries or to doctors.  A  26 home-maker service provides for meals to be cooked  27 in their homes and light housekeeping tasks to  28 be performed.  Because the home-makers visit the  29 elders on a daily basis, it is often through  30 their contact with our offices that we learn if an  31 elder may require a visit from us.  A doctor comes  32 to the community once every two weeks and performs  33 medical services over and above those which may be  34 required by the elders from their own personal  35 physicians.  Of greatest importance, is the support  36 that the elders receive from each other and from  37 others in their family who are close at hand and  38 who assist on a day to day basis.  39 I have worked with elders who have had to  40 travel to Vancouver.  It is my experience that  41 prior to a trip the health of the elder may worsen.  42 It is my experience that the elders experience  43 great anxiety in having to move themselves from  44 their families and from their homes.  It is also my  45 experience that these elders and chiefs have  46 little, if no, independent financial means to  47 travel and live in Vancouver. 1823  1 It is my opinion that should the trial move  2 to Vancouver, many, if not all of the elders within  3 this community would not be able to attend at  4 trial.  The trip would be uprooting.  It is a  5 different way of life in the city than at home and  6 even those who are healthy, in my opinion will find  7 the trip disorienting.  For those who are not  8 healthy, it would be impossible to provide the  9 support which presently we do to assist them in  10 their lives in Vancouver; further in my opinion,  11 their families would suffer by this absence.  They  12 would choose not to travel; nor could they, make  13 that trip."  14  15 My lord, there is another affidavit of Mr. Ralph  16 Michell, which is an unsworn affidavit.  Mr.  17 Michell -- this was reviewed over with him by counsel,  18 and he -- everything was correct on it, but he  19 misunderstood and left before the affidavit could be  20 finally sworn.  And he is on his way back, and we'll  21 file a sworn copy of this affidavit.  22  23 "I, Wii Seeks, Ralph Michell ... make oath and  24 say:  25 I am a community organizer, employed by the  26 Gitksan Wet'suwet'en Tribal Council,"  27  28 and then he deposes that he has personal knowledge of  29 the matters set forth.  30  31 "I have been assigned the job of courtroom marshall.  32 I attend outside the courtroom prior to the  33 commencement of court each day and I assist in the  34 seating of the Gitksan and the Wet'suwet'en.  I  35 give seating priority to the Plaintiffs and to the  36 members of the witnesses families.  After those  37 people have been seated, I ensure that others who  38 wish to view the trial may then be seated.  On the  39 days when there are more people wishing seats then  40 those seats which are available in the court, I  41 assist in rotating some of the seats.  42 I maintain an attendance sheet of those who  43 have come to witness the court process,"  44  45 and he attaches that sheet as appendix A.  46  47 "For two days, Friday, June 12, 1987 and Tuesday, 1824  1 June 16, 1987 I did not record all the people who  2 wished to be seated in the courtroom.  I believe  3 that the attendance was higher than the numbers  4 reflected for those dates in Exhibit 'A'."  5  6 And those dates had lower numbers than on the other  7 days.  8  9 "In addition to my responsibilities as courtroom  10 marshall, I also assisted in the transporting of  11 Gitksan and Wet'suwet'en who wished to attend court  12 but who were unable to do so due to transportation  13 and accommodation problems.  I organized three  14 vans to travel to Smithers.  One van left from  15 Kispiox and picked up people at Gitanmaax and  16 Hagwilget.  For many of the weeks of court a second  17 van travelled from Kitwanga.  A third van travelled  18 from Moricetown.  19 I assisted in finding accommodations in  20 Smithers for the elders.  In so doing I have had  21 personal contact with many of the elders both who  22 attended court and those who could not attend court  23 because of health problems.  24 Many of the elders had specific problems  25 which I addressed.  For example, some of the elders  26 who did attend court could not ride in a pick-up  27 truck or van but required a car with low clearance  28 because of their physical handicaps."  29  30 And as an aside, my lord, that applies to two of the  31 four witnesses, Mrs. Ryan and Mrs. Johnson.  32  33 "Many of the elders expressed to me that they did  34 not have the stamina to spend the day in Smithers,  35 and these people were taken to hotels.  Other  36 elders were concerned about their husbands or wives  37 who required their care and attention, and  38 arrangements were not for short-term care" --  39  40 "Were made," I believe that should be.  41  42 -- "made for short-term care of their spouses while  43 they attended in court."  44  45 And that applies to witnesses that we intend to call,  46 and we have provided a list of such as Mrs. Alfred,  47 whose husband is seriously ill in Moricetown. 1825  1 Going back to my submission, my lord, the  2 Plaintiffs have for the last century suffered from the  3 effects of having their rights adversely affected by  4 long distance.  It is part of the case of the  5 Province -- and I will be alluding to the other  6 affidavits in due course -- it is part of the  7 Province's case, to which Mr. Goldie specifically  8 alluded in his opening remarks, that laws made and  9 agreements reached in Ottawa and Victoria have had the  10 effect of either nullifying the rights of the  11 Plaintiffs or of shifting responsibility for their  12 settlement to the Federal Crown.  My lord, the  13 Plaintiffs cannot submit to a process in which their  14 rights are adjudicated out of their sight.  15 The second of our concerns is the prejudice to the  16 Plaintiffs' ability to continue with their case.  This  17 is a case in which the collective rights of the  18 Gitksan and Wet'suwet'en are at stake.  The  19 preparation of witnesses by counsel proceeds upon that  20 fundamental premise.  In preparing witnesses, counsel  21 has had the benefit not only of the witness, but also  22 other important members of the House, translators and  23 experts.  All of these persons are integral to the  24 process.  Counsel have also relied upon the essential  25 services of the Gitksan-Wet'suwet'en Tribal Council,  26 and, in particular, the library resources in which  27 voluminous documentation to assist the trial is lodged  28 and which has been used as a basis to provide  29 documents on very short -- document requests by the  30 other side on very short notice.  31 The part played by translators in this case is of  32 particular importance.  They have provided an  33 essential service in preparing a list of Gitksan and  34 Wet'suwet'en words and place names for the benefit of  35 counsel, the court and the court reporters.  They have  36 provided essential services to the Plaintiffs' counsel  37 in the preparation of witnesses.  You have only seen  38 two interpreters in court at any one time, but the  39 reality of the matter is that there is a team of 13  40 interpreters working across the street, without whose  41 assistance Plaintiffs' counsel cannot function.  42 We are advised that it is financially impossible  43 within the budgetary constraints of the Plaintiffs,  44 particularly in light of a cut back by the Federal  45 Government in the allocations of monies for the trial,  46 to move the nucleus of people which are required for  47 the effective presentation of the Plaintiffs' case to 1826  1 Vancouver.  2 And I would refer you to the affidavit of Allan  3 McCreary filed today.  He is an associate in the firm  4 of Phillips & Edmison, Chartered Accountants.  He's  5 from Smithers, and he has been the accountant for the  6 Tribal Council for seven years.  And he deposes that  7 he is -- and he swears that the information is true.  8  9 "I have been involved in the preparation of budget  10 proposals to the Test Case Funding Branch of the  11 Department of Indian Affairs and Northern  12 Development of the Government of Canada with  13 respect to this litigation for several years.  14 The Government of Canada retained  15 independent legal counsel from Vancouver to review  16 the budget proposal with legal counsel for the  17 Plaintiffs.  Independent counsel recommended a  18 budget for approval on July 7th, 1986.  19 From previous experience with earlier  20 budgets, and from comments by senior personnel in  21 charge of the Test Case Funding Branch, the Tribal  22 Council operated on the basis of the budget  23 approved by independent counsel, from July 1986  24 until May 29th, 1987.  25 On May 29th, 1987 the Government of Canada  26 advised the Tribal Council of major cutbacks in the  27 processed budget, which had been recommended for  28 approval in July 1986.  29 On this basis, the Plaintiffs' funding for  30 this litigation has been seriously jeopardized.  I  31 have been involved in the preparation of a new  32 budget covering the needs for the continuation of  33 the trial after June, 1987."  34  35 He goes on,  36  37 "Notwithstanding the cutbacks in the budget, the  38 Plaintiffs have been able to maintain the  39 prosecution of this case, primarily through the  40 support by Bands and other community associations  41 and individuals who have provided support through  42 the feasts within the Gitksan and Wet'suwet'en  43 territory.  44 Most of the support from the Bands and other  45 associations has been on a credit basis rather than  46 on a cash basis.  This has been possible because of  47 the long-term credit relationship that the 1827  1 Plaintiffs and the Tribal Council have within the  2 community of Smithers.  3 I am familiar with the development of the  4 credit system with the local businesses and the  5 Plaintiffs and the Tribal Council have no credit  6 rating in Vancouver.  7 I was requested by counsel for the  8 Plaintiffs early this morning to review the  9 estimated cost of the trial if the trial is moved  10 to Vancouver while the Indian witnesses are still  11 giving evidence.  12 I have not had an opportunity to make a  13 detailed analysis of those costs.  However, based  14 on the needs of counsel, the experience of the  15 requirement of the utilization of interpreters, the  16 library facilities within the Smithers office, and  17 transportation costs, I estimate that the case will  18 require very large additional costs.  19 Unlike the circumstance of continuing the  20 trial in Smithers where the Tribal Council has a  21 credit rating which can allow it to operate on a  22 deficit basis, it is not possible to establish any  23 credit rating to provide the necessary  24 infrastructure in Vancouver.  In making these  25 estimates, I have taken into account that some of  26 the facilities presently being provided in Smithers  27 would be provided through the law offices of legal  28 counsel in Vancouver.  29 I am seriously concerned that all of the  30 additional costs of moving witnesses, including  31 travel and accommodation, would not be funded  32 through Test Case Funding.  The major cuts made by  33 the Government of Canada at the end of May, 1987  34 was the cancellation of any aspects of the budget  35 which involved the cost of transportation and  36 accommodation of witnesses, and persons involved in  37 the preparation of those witnesses, other than  38 lawyers.  39 After reviewing the expenditures with Don  40 Ryan, the Executive Director of the Tribal Council,  41 I verily believe that it is possible for this trial  42 to continue in September in Smithers.  This  43 possibility is based on the ability of the Tribal  44 Council to provide an infrastructure without cash.  45 In view of the requirement that any move of  46 this case and the minimum necessary support systems  47 for this case to Vancouver would require a major 182?  1 cash disbursement immediately, it is my opinion  2 that it is not financially possible for the  3 Plaintiffs to proceed with this case in Vancouver  4 in September, 1987.  5 If it was necessary for this case to be  6 moved to Vancouver to hear further evidence of the  7 Plaintiffs, it is my opinion, based on my  8 experience with the budgets of the Tribal Council  9 and the present financial circumstances of the  10 Tribal Council, that there is no way that I can  11 determine when the case could proceed financially  12 in Vancouver.  13 I have been informed by Neil Sterritt that  14 on June 24th,"  15  16 yesterday,  17  18 "he met with the Minister of Indian and Northern  19 Affairs and Northern Development with respect to  20 our proposed budget to carry the case from June,  21 1987 until completion of trial.  I have been  22 informed by Neil Sterritt that the Minister of  23 Indian Affairs and Northern Development advised  24 that he would investigate whether or not further  25 monies could be provided, but has made no  2 6 commitment and has provided no timetable as to when  27 a commitment could be made.  28 The proposed budget which was prepared after  29 the decision on May 29th, 1987, was based on the  30 assumption that the evidence of the Indian  31 witnesses could be heard in Smithers.  It will be  32 extremely difficult financially for the Plaintiffs  33 to move any phase of the trial to Vancouver, but in  34 the present financial circumstances, it is  35 impossible for the evidence of the Indian witnesses  36 to be heard in Vancouver."  37  38 My lord, on that ground, in sum, the court's ruling  39 to change the venue of the trial from Smithers in  40 September will have the effect of torpedoing the  41 Plaintiffs' ability to advance their case.  42 The third area I'd like to approach -- I'd like to  43 refer you to the affidavit of Ms. Mandell, one of the  44 counsel for the Plaintiffs.  It goes along with Mr.  45 McCreary's.  After deposing that she's one of the  46 counsel for the Plaintiffs, she states,  47 1829  1 "I was present in court on June 24th and heard the  2 judgment of Chief Justice McEachern regarding the  3 change of venue of the trial from Smithers to  4 Vancouver.  One factor taken into account by him  5 was that 11 of 12 counsel and two out of two court  6 reporters at the trial are all located in Greater  7 Vancouver.  Counsel for the Plaintiffs all prefer  8 the location of the trial to be in Smithers.  Three  9 of the four Plaintiffs' counsel either rent or own  10 residence in this area.  11 The impact of moving the case to Vancouver  12 will force the Plaintiffs' lawyers to divide  13 themselves between two locations throughout the  14 duration of the trial.  Under the lawyers' present  15 plan, the Plaintiffs' lawyers will be in Smithers  16 throughout the summer, preparing for the trial in  17 the fall.  Not all the witness preparation will be  18 finished within that time period.  The result of  19 the trial moving to Vancouver would require that at  20 least one lawyer remain in the Smithers area  21 preparing witnesses while others of the Plaintiffs'  22 lawyers would be in court in Vancouver.  As new  23 witnesses take the stand, the Plaintiffs' lawyers  24 will be forced to switch locations with the lawyer  25 who had been preparing witnesses in Smithers now  26 moving to Vancouver to introduce that evidence,  27 while the lawyers who had been in the courtroom  28 would move to Smithers to prepare new witnesses.  29 The impact to the Plaintiffs' legal team would be  30 that there would be no continuity of counsel in  31 court; nor any reasonable way by which counsel can  32 maintain consultation with each other throughout  33 the duration of the trial.  34 The consequence to the Plaintiffs in terms  35 of office backup and administration are tremendous.  36 It would be necessary to maintain some office  37 capability in Smithers to prepare for the witness's  38 evidence.  The law offices in Vancouver are  39 presently incapable of handling the many aspects of  40 the administration of this case.  For example, we  41 would require additional facilities to maintain the  42 library which currently services the documents for  43 the trial.  We would also require additional  44 facilities to provide working space for the  45 interpreters and to administer the Plaintiffs'  46 needs while in Vancouver.  I have been advised by  47 Allan McCreary,accountant for the Tribal Council, 1830  1 that there are no funds available to establish  2 needed facilities in Vancouver.  3 I was present in court when Chief Justice  4 McEachern suggested that affidavits be provided by  5 each and every informant to Neil Sterritt or Alfred  6 Joseph indicating the Gitksan and Wet'suwet'en  7 place name throughout the territory.  This task  8 would require the taking of between eighty to one  9 hundred affidavits from people who live both within  10 and outside the claimed area.  Some of the  11 informants live in Vancouver; others in Prince  12 George.  Many of the informants are elderly and  13 bedridden.  Others will be either fishing or  14 working away from home throughout the summer.  Most  15 if not all of the affiants will be living at  16 locations other than where the lawyers' offices  17 will be located, and at least two separate  18 interviews will be needed to do these affidavits.  19 Interpreters will be needed.  It is my opinion that  20 the task of preparing such affidavits will be  21 administratively unworkable and onerous to the  22 Plaintiffs."  23  24 And I may say that, of course, the majority of those  25 informants are within the north in the territory.  26 THE COURT:  Of course, I didn't make that suggestion, with all  27 respect to Ms. Mandell, Mr. Grant.  I merely said that  28 if your proposal was to be workable, that's what would  29 be required.  I think Ms. Mandell would agree with  30 that.  31 MR. GRANT:  Your lordship made specific reference in your  32 reasons yesterday to the fact that there are 11 out of  33 12 counsel, two out of two court reporters and  34 yourself who are from Vancouver.  The Plaintiffs'  35 counsel, as Ms. Mandell attests, are not suggesting  36 that this poses intolerable inconveniences or burdens  37 on them.  The Federal legal team has not advised your  38 lordship of any intolerable burdens upon them either.  39 The Province has alluded to inclement weather and the  40 difficulty of perceiving Smithers through snowflakes.  41 We can advise both the court and Mr. Goldie that  42 September and October are not months in which the  43 weather in Smithers takes us outside the pale of  44 civilized transportation and communication.  45 MR. GOLDIE:  I'm quite aware of that.  46 MR. GRANT:  I'm glad Mr. Goldie is aware of that.  47 Notwithstanding this, it is our submission that the 1831  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR.  THE  MR.  GRANT  COURT  GRANT  THE COURT  question of the proper forum for the adjudication of  this case should not be determined by the principal  residences of counsel or the trial judge.  To the  extent there is a question here of balance of  convenience, this court should take into account the  fact that it is within the financial means of both  Defendants to participate in this trial to the full  extent necessary in the Town of Smithers.  It is not  possible for the Plaintiffs to participate in a like  manner in Vancouver.  That fact, my lord, must  overshadow all others.  The rule the court -- the rule that applies is, of  course, Rule 39 (7), which states that,  "The Court may order that the place of trial be  changed or that the trial be heard partly in one  place and partly in another."  That case -- that rule was considered by Judge  Kirke Smith in the case of McPhatter and Thorimbert, a  copy of which I have.  And it's a brief case, and I  would set out the facts of that case starting at the  beginning.  "In this action, commenced by writ of summons  issued out of the Courtenay registry on May 19,  1965, four plaintiffs resident at Campbell River  are seeking damages for personal injuries against  the defendant, a resident of Trail.  The action  arises out of a motor- vehicle accident which  occurred near Trail in July, 1964."  :  Mr. Grant, this authority, which is well-known,  really has little application, has it?  You've got a  case there of personal injuries.  You're probably  talking of a one or two day trial.  Well, my lord, it is my submission --  You've had six weeks here.  -- that the case sets out the two fundamental terms,  the two fundamental principles upon which a change of  venue is relied upon, and I would submit that it's --  that those principles should apply to this case.  The  Plaintiffs, my lord, are only seeking that the same  principles apply to them as would apply to any other  Plaintiffs.  The Plaintiffs came and requested a concession that  the trial open in Smithers.  Smithers is not a 1832  1  2  3  4  5  MR.  GRANT  6  7  8  THE  COURT  9  10  11  12  13  14  15  16  17  MR.  GRANT  18  19  20  21  22  23  24  25  THE  COURT  26  27  MR.  GRANT  28  29  30  THE  COURT  31  MR.  GRANT  32  33  THE  COURT  34  35  36  MR.  GRANT  37  THE  COURT  38  MR.  GRANT  39  THE  COURT  40  MR.  GRANT  41  THE  COURT  42  MR.  GRANT  43  44  45  46  47  location where the court sits.  And that concession  was granted.  We've been here six weeks.  Isn't that a  factor that brings into question the authority of that  decision by Mr. Justice Kirke Smith?  Well, my lord, with respect, of course, there is  assizes in Smithers, and there have been civil assizes  in Smithers before this case.  On special cases where the length of trial is  manageable and there is good reason.  But we've been  here for six weeks or nearly six weeks.  And I just  wonder what would have happened if -- as might well  have happened -- if I had said in the first instance  no, a trial of this magnitude will have to be in  Vancouver.  That would have been the end of the  matter.  And that's why I'm so surprised at the  submission that I'm now receiving.  Well, my lord, there was a hidden -- there was --  there was certainly the comment of -- the trial could  be moved, but there was always -- there was -- there  was -- it is -- it is my submission that it was never  expressed by any counsel or by the Court that the  trial of the Indian evidence, the Gitksan and  Wet'suwet'en witnesses, would be required to be in  Vancouver.  It wasn't expressed that we were going to take six  weeks to hear three and a quarter witnesses here.  But it was expressed that the Plaintiffs' case would  take a substantial amount of time.  And it was also  expressed --  Oh, yes.  -- that the majority of the Plaintiffs' witnesses  would be Indian witnesses.  Well, I'm not sure that's right, is it?  I thought I  was told you were going to have 22 lay witnesses and  some 20 odd expert witnesses.  We had estimated -- we'd estimated 45 witnesses.  Oh, 45.  Twenty expert witnesses.  I may be wrong.  And 25 lay witnesses.  All right.  And, of course, as part of my proposal yesterday,  which we can -- we are trying to deal with the  question of the expert witnesses as a component of  dealing with some of the matters.  My lord, in this case the -- the court refers to,  at the bottom of that first page, the two grounds for 1833  1 ordering the change in venue on the interests of  2 justice and the preponderance of convenience, and then  3 he refers on the next page to the Armstrong decision  4 of Mr. Justice Macdonald of the Court of Appeal, where  5 that judge said at page 246,  6  7 "There is a preponderance of convenience in favour  8 of a change of venue, but nothing short of a great  9 or considerable preponderance of convenience and  10 expense would justify the taking from the  11 respondent,"  12  13 the Plaintiff in that case,  14  15 "the right which the law has given him to select  16 his own place of trial."  17  18 And then he refers to Charman, where the Court,  19 Judge Boyd, says,  20  21 "The plaintiff, as dominus litis, has the right to  22 control the course of litigation.  He has the  23 absolute right, unless in cases covered by the  24 Rule, to choose the place of trial, subject to its  25 being changed by the defendant for sufficient  26 cause.  The burden is on the defendant to make it  27 appear that serious prejudice is likely to arise to  28 him if it is not changed.  Usually the question  29 turns on the balance of convenience, based on  30 number of witnesses, distance from the place of  31 trial, and expenses of attendance.  It then becomes  32 a question of degree of less or more, and the test  33 is variously expressed as to whether there is a  34 great, or very great, or overwhelming preponderance  35 of convenience shown by the defendant which ousts  36 the right of the plaintiff."  37  38 Now, that principle is the one which I assumed,  39 rightly or wrongly, that Mr. Goldie referred to during  40 pre-trials when he said he would have something to say  41 about where the Defendant's evidence, that is the  42 witnesses for the Defendant, would give evidence.  But  43 that's not what we're dealing with at this point.  44 The court goes on in the McPhatter case to say,  45  46 "That current Ontario practice still requires that  47 an overwhelming preponderance of convenience be 1834  1 established appears clear from such decisions as  2 that in Allan v. Dynes ... In this province I take  3 it that the test of a great preponderance  4 enunciated in the Armstrong case ... is the guide  5 to be adopted at the first instance in  6 applications of this type."  7  8 On the last page of the case the court says -- the  9 court refers to the fact that,  10  11 "The defendant says that two or more witnesses, in  12 addition to the plaintiffs themselves, live at  13 Campbell River on Vancouver Island, that medical  14 examinations of all four plaintiffs will be  15 required which could be more conveniently and less  16 expensively conducted on the island at Nanaimo or  17 Victoria, that the medical examiners will be  18 required to attend at trial, and that convenience  19 and the saving of expense dictate that the action  20 be tried in Victoria."  21  22 The court goes on to say, and this is in 1966,  23  24 "In this day of fast and relatively inexpensive  25 transportation, I do not conceive that I can  26 regard the short distance between Vancouver and  27 Victoria as constituting anything more than a  28 minor inconvenience to litigants or their  29 witnesses.  I would, I think, have somewhat more  30 of a problem if the application were for a change  31 of venue to Trail, where the accident had  32 occurred.  Expense and some inconvenience to  33 certain of the individuals involved in one  34 capacity or another is inevitable whether the  35 trial is held in Vancouver or in Victoria, and I  36 would not be justified on the evidence as I see it  37 in taking from the plaintiffs their prima facie  38 right 'to control the course of litigation.'"  39  40 That's a quote within the -- within the quote from the  41 other decision.  42 As you know, the rule under Rule 39 (7) is that the  43 place of trial shall be the place named in the  44 Statement of Claim but the court may order the place  45 of trial be changed or the trial be heard partly in  46 one place and partly in another.  So the presumption  47 is the trial is where the place of trial is scheduled, 1835  THE COURT  9 MR. GRANT  10  11  12 THE COURT  13 MR. GRANT  14  15  16 THE COURT  17  18  19  20  21  22  23  2 4 MR. GRANT  25  26  27  28  2 9 THE COURT  30  31 MR. GRANT  32  33  34  35  36  37  38  3 9 THE COURT  4 0 MR. GRANT  41  42  43  44  45  46  47  and that, of course, is what was set down when this --  the original trial record was filed in this case two  years ago.  :  But it was set for a location where the court  doesn't sit as a regular course.  I don't suggest  there was anything improper in doing that; I suggest  it was legally ineffective and raises or brings into  question the authority of the cases you have sited.  :  But, my lord, with respect, the court — this is a  place of assizes of the Supreme Court of this  Province.  :  It can be, yes.  : It has been in criminal assizes for some time, and,  in fact, in recent years it has been a place of civil  assizes.  :  For short trials, yes.  If it's convenient for short  trials, yes; but not for cases of this magnitude.  I  mean, what troubles me, Mr. Grant, is there seems to  be no recognition of the fact that sitting here for  six weeks was a concession, and now it's being turned  around as if it gave rise to an entitlement.  And it  seems to me that that puts a different complexion on  the matter.  :  Well, with respect, my lord, I -- it's -- with  respect, I would submit that in the circumstances of  this case and in the -- in the manner in which the  case was set down that it is an entitlement that the  Plaintiffs have the trial where they can be present.  :  Well, your legal logic escapes me, Mr. Grant.  I'm  sorry, I don't follow that at all.  :  I would like to raise one final point.  There is a  final consideration which you should consider, my  lord, that the direction that the trial be moved to  Vancouver in September should be placed in the context  of the historical experience of the Gitksan and  Wet'suwet'en people.  You have heard evidence that  efforts have been made in the past to move them off  their territories onto reserves.  :  This doesn't sound like a legal argument, Mr. Grant.  :  My lord, with respect -- with respect, the  importance to the Plaintiffs of being able to be  present for a trial which -- and I misstated  yesterday -- which I said will affect them for  decades; it will affect them for hundreds of years,  the effect of this, and the concern that they have  should be a factor that -- the -- the reason why the  Plaintiffs have a concern is something that I submit 1836  THE  MR.  THE  9  10  11  12 MR.  13  14 THE  15 MR.  16  17  18  19 THE  20  21  22  23  24  25  26  2 7 MR.  28  29  30 THE  31  32 MR.  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  COURT  GRANT  COURT  GRANT  COURT  GRANT  COURT  GRANT  COURT  GRANT  as counsel is important that you understand.  Well —  In the context of the evidence you've heard.  You do me an injustice, Mr. Grant, if you don't  think I understand that.  But what I do find difficult  to follow is your reliance upon that subjective fact  as a legal ground.  You've made the point  subjectively, but is it tenable to argue that that  gives rise to legal rights at this stage and in  connection with the place of trial?  Certainly in  argument --  Well, in consideration of your discretion I think  the fact --  You've made that point subjectively, haven't you?  I would submit, my lord, that you have to take these  factors into account in the consideration and -- when  you asked us to -- if there are serious considerations  to take into account.  Yes, that was your first point.  Now you're going on  and saying that -- in addition to that you're saying  that because they have this strong feeling, your  clients you say have this strong feeling, and I have  no doubt they do, that that gives rise to a legal  right arising from the fact that they feel abused by  what's happened to others in the past.  With respect,  I question whether that's a legal argument.  My lord, the first ground I raised was with respect  to the two legal systems that are at interplay here  and how -- there may be areas    There is only one legal system in operation in this  courtroom.  There is only one legal system here.  But you've heard evidence of the Plaintiffs of their  laws.  And I'm -- what I raised was that -- and you've  made the point yourself, my lord, when -- to some  witnesses, that -- that you had your rules to apply in  this court.  And -- and the Plaintiffs and the  witnesses, I would submit they -- they have -- they  understand that.  But this -- what -- the first point  I was making was that there are areas where there is  no conflict, and this is one area where there isn't a  conflict, between the common law and the Gitksan and  Wet'suwet'en in terms of those principles.  But, my  lord, the Plaintiffs have come to this court because  their presence in the negotiating forum for the  resolution of their title, either in Smithers,  Hazelton or Victoria, has been repudiated by the  provincial Defendant? 1837  1 THE COURT:  I have nothing do with that, Mr. Grant, surely.  2 MR. GRANT:  I know, but it's an -- I'm saying I understand that,  3 my lord, but that is -- they -- the Plaintiffs have  4 been compelled to come to this court as the court of  5 last resort.  Your ruling that the case move to  6 Vancouver in the midst of the presentation of critical  7 Gitksan and Wet'suwet'en evidence raises serious  8 questions for the Plaintiffs as to whether this court  9 forum is the place in which they can expect the full  10 hearing of their claims, a full and fair hearing.  My  11 lord, they wish to be present when their chiefs speak.  12 You have heard this from the mouths of the witnesses.  13 You have heard why.  You have heard the laws.  That is  14 what they are asking you to -- to recognize.  It's not  15 to confront the laws or the rules that you must adopt;  16 it's just to recognize their respect within their  17 system.  And I would ask that you reconsider your  18 decision and that you rule that the case can continue  19 in September in Smithers.  Those are my submissions.  20 THE COURT:  Thank you.  Mr. Goldie, Mr. Macaulay.  21 MR. GOLDIE:  I have nothing to add to what I said yesterday, my  22 lord.  23 MR. MACAULAY:  I have no further submissions to make, my lord.  24 THE COURT:  Okay.  Well, I think that I will take this under  25 consideration.  I'm not going to decide it today.  I'm  26 not sure I'm even going to decide it here today or  27 tomorrow.  I think that Mr. Grant has made some  28 submissions, some submissions, that deserve some  29 careful consideration.  I am troubled by the inter-  30 mingling of legal and subjective arguments, and I want  31 to sort those out.  I am troubled also by the position  32 that Mr. Grant's arguments create where the court  33 seems to be drawn into a conflict with the Plaintiffs,  34 which I frankly think is most unfortunate, and at the  35 moment I think it's unfair to be put in that position.  36 I might change my mind about that.  But I thought from  37 the beginning that I was making a concession by having  38 this trial opened here.  I thought it was a concession  39 that we were here as long as six weeks.  And I want to  40 dispassionately consider whether that has anything  41 whatsoever to do with the legal questions that arise.  42 It may have nothing to do with it at all.  But I do  43 want to take some time to reflect on it.  We won't be  44 sitting after tomorrow anyway, and for that reason I  45 think it's best that I take the opportunity to give it  46 some detached consideration, so I'll reserve on your  47 request for reconsideration, Mr. Grant, and you will 183?  Proceedings  1 hear from me I hope sometime next week.  All right.  2 Thank you.  Do you wish to proceed with, Mr. Joseph,  3 Mr. Rush?  4 MR. RUSH:  The proposal I would make regarding his examination  5 continuing a day and a bit in trial is this, that his  6 examination be adjourned now for continuation when the  7 trial continues for two reasons.  Obviously one that  8 was mentioned yesterday, his cross-examination is not  9 going to finish; but secondly, on reflection on some  10 of the rulings of your lordship and what we may have  11 to prove in terms of the link between evidence  12 provided to him by other elders and chiefs and his  13 evidence, that there may be more evidence that I wish  14 to call from him.  And it's particularly -- it has  15 struck me particularly that there may be other  16 evidence that -- not prepared by me as yet -- that I  17 will want to call.  I can see the consequences of what  18 your lordship has been advising us in the last few  19 days, and I think there will be more evidence from  20 him.  21 Now, just on that point, we also have been  22 considering your lordship's rulings on the -- the  23 question of the hearsay rule and its application to  24 various components of the Plaintiffs' evidence, and we  25 think that if -- we think we would like to address you  26 further regarding your draft reasons.  And we have  27 again given consideration to your lordship's comments  28 in the last few days, and we feel that you would be --  29 your views on the subject of the application of the  30 hearsay principles would be enhanced if we were to  31 make further submissions to you on it, and so for this  32 reason we were going to suggest to you that we -- we  33 break now to reconvene at two o'clock tomorrow to hear  34 us further on the question of the application of  35 the -- of the hearsay rule.  Of course, for our  36 purposes the advantage of this is that there is at the  37 moment some obvious uncertainty as to potential  38 proposed methods of proceeding with the trial at the  39 time of its recommencement, and we think one of the  40 areas for clarification must be the -- the breadth or  41 reach of the hearsay principles and how these might  42 well apply to the suggested alternative ways of  43 proceeding, and I think we would certainly be edified  44 by your lordship's consideration of our further  45 arguments on that subject, and it may well help us to  4 6 determine how to determine to put forward our  47 proposals regarding the ones already advanced.  So 1839  Proceedings  1 this is what we're saying, that we'd like the case to  2 be adjourned now until two tomorrow with the idea in  3 mind that we will make an argument, a further argument  4 upon your lordship's invitation on the issue of the  5 hearsay and its applicability.  6 THE COURT:  Mr. Goldie.  7 MR. GOLDIE:  Well, my lord, I was hoping that we could complete  8 Mr. Joseph's evidence in chief.  As I said yesterday,  9 I had -- I certainly wouldn't require him to be placed  10 under any ban of communication if we were able to get  11 started on the cross-examination.  Be that as it may,  12 I think that adjourning until two o'clock tomorrow  13 afternoon is, with all respect to my friend, too long.  14 We have a number of things to cover.  We have my  15 motion with respect to enlargement of time with  16 respect to experts.  17 THE COURT:  Well, I made that order yesterday, but perhaps --  18 MR. GOLDIE:  Well, I understood that Mr. Rush wished to make  19 some submissions with regard to that.  20 MR. RUSH:  Yes, that's so.  I didn't take your lordship's  21 comments as an order.  22 THE COURT:  All right.  23 MR. RUSH:  I do have something to say about that.  24 THE COURT:  All right.  25 MR. GOLDIE:  That's one of the things we have to deal with.  I  26 understood that it -- we should have some further  27 discussion of the trial organization.  There is -- as  28 my friend says, he wishes to make a submission on --  29 with respect to your draft rulings, and we're quite  30 ready to contribute to that.  All of those things  31 indicate to me that leaving it until two o'clock  32 tomorrow afternoon would be running things a little  33 fine.  34 THE COURT:  Well, again, are you mixing two things up?  One is  35 the continued examination of Mr. Joseph; and secondly,  36 there is these legal questions.  37 MR. GOLDIE:  I did run them together.  I had hoped that the  38 priority would be given to finishing Mr. Joseph's  39 evidence, and that's still a priority.  But I say,  40 with respect, if we're going to deal with these other  41 things, that there is very little time to do that, and  42 if your lordship is disposed to granting my friend's  43 request, that there be an adjournment of the evidence  4 4 now.  45 THE COURT:  All right.  Mr. Macaulay.  46 MR. MACAULAY:  My lord, I have another matter to bring up, and  47 that's the question of the delivery of documents that 1840  Proceedings  1 were relied on by the Plaintiffs' experts.  It's a  2 matter I referred to yesterday.  But insofar as using  3 up the time of the court, we've had -- if we hear no  4 further evidence, we will have had only three days of  5 evidence in a five day week, which isn't a  6 particularly economical use of time.  I expect that  7 after a long adjournment the Plaintiffs will want to  8 lead some further evidence.  That's to be expected,  9 and we certainly wouldn't object to that, but there is  10 some evidence -- I noticed in a summary that my  11 friends were kind enough to provide for us concerning  12 this witness there is some evidence that has nothing  13 to do with the hearsay rule, doesn't appear to anyhow,  14 other matters that he could finish perhaps in another  15 hour or two.  16 THE COURT:  All right.  Well, I'm going to take the afternoon  17 adjournment.  My preference, Mr. Rush, and I don't say  18 that this is necessarily a high priority preference,  19 would be that you carry on with Mr. Joseph for the  20 rest of the day and that we start the arguments in the  21 morning so we'll be sure to have lots of time.  You  22 think about that over the adjournment, and I'll hear  23 you further when we come back.  24 THE REGISTRAR:  Order in court.  25  2 6 (PROCEEDINGS ADJOURNED PURSUANT TO THE AFTERNOON  2 7 ADJOURNMENT)  28  29 I hereby certify the foregoing to be  30 a true and accurate transcript of the  31 proceedings herein to the best of my  32 skill and ability.  33  34  35  36 Leanna Lynn  37 Official Reporter  38 United Reporting Service Ltd.  39  40  41  42  43  44  45  46  4 7 (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT) 1841  1  2  3  4  THE  REGIS1  5  THE  COURT  6  MR.  RUSH:  7  THE  COURT  8  9  MR.  RUSH:  10  11  THE  COURT  12  13  MR.  RUSH:  14  THE  COURT  15  A  16  THE  COURT  17  Alfred Joseph (for Plfs.)  In Chief by Mr. Rush  ALFRED JOSEPH, Previously sworn:  TRAR:  Witness, I remind you you are still under oath.  :  Would it be convenient if we went to 4:30?  Yes, it would be.  :  Well, if you find a place where it's convenient to  go to, let me know.  I apologize for the late start.  Mr. Joseph was  attending to his defunct car.  :  Sounds like a matter of monumental importance.  I  hope everything came out all right.  It was to him.  :  Does your car go, Mr. Joseph?  No.  :  Not yet.  Well, that's counsel's responsibility to  keep the clients and its witnesses mobile.  Go ahead,  18 Mr. Rush.  19  20 EXAMINATION IN CHIEF BY MR. RUSH (Continued):  Mr. Joseph, yesterday you told us about the Smoke  Feast, and you had also given us your evidence  concerning the Headstone Feast.  Are there other types  of Wet'suwet'en Feasts?  Yes.  And is there a Feast which occurs after the Smoke  Feast?  Yes.  And what is that Feast?  It is a Funeral Feast.  Okay.  And you said that the Smoke Feast among the  Wet'suwet'en occurs shortly after the passing on of a  Wet'suwet'en chief.  When does the Funeral Feast  occur?  Usually right after a funeral.  And how soon is that after the Smoke Feast?  About two to three days.  Okay.  And is that Feast a Feast which occurs in the  Feast hall of Moricetown or Hagwilget in the manner  that you have described earlier about the other  Feasts?  Yes.  Are there other types of Feasts which occur among  Wet'suwet'en people apart from the three that you've  mentioned?  Yes.  What are they?  21  Q  22  23  24  25  A  26  Q  27  28  A  29  Q  30  A  31  Q  32  33  34  35  A  36  Q  37  A  38  Q  39  40  41  42  A  43  Q  44  45  46  A  47  Q 1842  Alfred Joseph (for Plfs.)  In Chief by Mr. Rush  1 A   Usually the pole raising and a chief will call a Feast  2 when there is something has happened to him or any --  3 any of the other chiefs in the House.  4 Q   And is it in that situation up to the chief to  5 determine when the Feast will be called for?  6 A   Yes.  7 Q   And what the Feast will deal with?  8 A   Yes.  9 Q   Okay.  Is there also a Feast known as a Shame Feast?  10 A   Yes.  That is one of them.  11 Q   That's an example of one, is it?  12 A   Yes.  13 Q   Okay.  Are there any other types of Feasts among the  14 Wet'suwet'en people?  15 A   Sometimes a chief is -- gets -- chooses a successor in  16 his lifetime and wishes to step aside and he will have  17 a Feast and choose a younger person to take his place  18 and then he puts -- sometimes puts conditions on  19 those.  One of them is he will remain in his seat, but  20 his successor will be sitting elsewhere.  Or else he  21 will remove himself from the seat and put the younger  22 person in his place.  23 Q   And is that a type of Feast that occurs during the  24 lifetime of the existing chief?  25 A   Yes.  26 Q   Are there any other types of Feast that come to mind?  27 A   If the chief is injured or someone has to come to his  28 aid, like if he is hurt and is bleeding and someone  29 will come to his aid, then he has to throw a Feast.  30 Q   All right.  Does that have a name that you can attach  31 to that type of Feast?  32 A   Yes.  33 Q   What kind of Feast is that?  34 A   K'ayee nee tatl'iil.  35 MR. RUSH:  I wonder if you could help us with that, Mr.  36 Mitchell?  37 A   K'ayee nee tatl'iil.  38 THE TRANSLATOR:  K'ayee nee tatl'iil.  K-'-a-y-e-e n-e-e  39 t-a-t-1-'-i-i underline 1.  40 THE COURT:  After the — I am sorry, I didn't get it.  I am not  41 sure I got it right.  m-e-e -- what was next?  42 A   n-e-e.  43 THE COURT:  n-e-e.  44 THE TRANSLATOR:  t-a-t-1-'-i-i underline 1.  45 THE COURT:  All right.  Thank you.  4 6 MR. RUSH:  47 Q   Now, Mr. Joseph, is there witnessing -- 1843  1 THE  COURT  2  3 MR.  RUSH:  4  Q  5  A  6 THE  COURT  7 MR.  RUSH:  8  Q  9  10  A  11  Q  12  13  A  14  Q  15  A  16  17  18  19  20  21  22  Q  23  24  A  25  26  27  28  29  30  31  32  33  34  Q  35  36  37  38  A  39  Q  40  41  A  42  Q  43  44  A  45  Q  46  47  A  Alfred Joseph (for Plfs.)  In Chief by Mr. Rush  :  I am sorry, is there an English equivalent of any  kind for that?  Yes.  All right.  How would that be translated?  It would be a Feast where he'll wipe out the shame.  :  Thank you.  All right.  Are there guests invited to the types of Feasts which  you've described?  Yes.  And do these -- are these guests invited for the  purposes of witnessing the events at those Feasts?  Yes.  And why is it important to do that at those Feasts?  It is important to have witnesses at a Feast.  If you  are in a place where all the people are of one clan,  that is you cannot invite that clan to come in, your  own clan to come in as witnesses, it has to be of  another clan.  All the guests that you have have to be  of another clan and that is why it is important to  have witnesses.  Why could you not have witnesses from the Gitdumden  clan?  It is -- it's something like to me you buy a glue in  the store and one is -- one -- just one of a kind,  can't mix, so that is the reason for this.  You have  to have witnesses from another clan to be -- due to --  to be in a Feast.  And that's what makes -- makes this  stronger.  To have people there that are not related  to you, and those people say that what happened is  correct.  What happened is according to our laws, and  that is why you have to have witnesses from different  clans.  Okay.  I wanted to ask you, Mr. Joseph, about one of  the laws that you've made reference to in your  testimony and that is the law of trespass or against  trespass.  Yes.  Is the law against trespass, is that common among  Wet'suwet'en people?  Yes.  In the old days what was the consequence if the law  against trespass was broken?  It was death.  And how was this known to you?  How is this, the  serious consequences of death known to you?  To be reminded of the laws is much like the non-Indian 1844  1  2  3  4  5  6  Q  7  8  A  9  Q  10  A  11  12  Q  13  A  14  THE  COURT  15  16  A  17  18  MR.  RUSH:  19  20  21  22  23  THE  COURT  24  25  26  27  MR.  RUSH:  28  29  30  31  THE  COURT  32  33  34  35  36  37  MR.  RUSH:  38  39  40  THE  COURT  41  MR.  RUSH:  42  Q  43  44  45  A  46  47  Alfred Joseph (for Plfs.)  In Chief by Mr. Rush  laws.  You are reminded of incidents that have  happened in the past.  This is the way -- this is --  this is the way we handle tress -- people that  trespass and they tell you -- give you an example of  any way that trespass has been dealt with.  And were examples given to you of the consequence of  trespass?  Yes.  And does one come to mind?  One that I remember very well is that there was --  they give the man's name as Hooliits.  Hooliits?  Yes.  He went out to visit --  :  Excuse me, is this something you know about  personally or did somebody tell you about it?  It was something that I was told to remind me of  the -- what happens to a person when he trespasses.  I am leading it for the purpose of the foundation  for his belief about the law and not necessarily for  the truth of the event.  But the basis for why Mr.  Joseph has his understanding about the consequence of  this law against trespass.  :  Isn't it sufficient for him to say this is my belief  and I reach that belief because of a lot of things  that a lot of people told me or some things that  people told me?  Do I have to have the details?  Well, I think the details round out for you why it is  people believe things.  If your lordship is satisfied  that evidence about the statement of his belief is  sufficient --  :  Well, the grounds of admissibility are highly  tenuous, and it seems to me that it doesn't add much  to his belief, if such is his belief, that in the  early days the consequence of trespass was death and  he learned that, I presume, from his elders who gave  him examples.  Does it go any further than that?  No.  I think the example would, of course, assist  your lordship, but I'm happy to lead a bit more  foundation here of this evidence.  :  All right.  Mr. Joseph, about this law against trespass, who among  your people told you of this law, both people who have  passed on and others?  Well, the -- when you are young you are told of what  to stay away from, what laws that you have to respect,  and you are given examples of what will happen to a 1845  1  2  Q  3  4  A  5  Q  6  A  7  Q  8  A  9  Q  10  11  A  12  Q  13  A  14  Q  15  16  17  18  A  19  Q  20  21  A  22  Q  23  A  24  25  26  27  28  29  30  Q  31  32  33  A  34  35  36  Q  37  38  39  A  40  41  42  43  44  45  Q  46  47  Alfred Joseph (for Plfs.)  In Chief by Mr. Rush  person if they break a law.  Okay.  Were these examples given to you by your  grandparents?  Yes.  And your parents?  Yes.  Were they given to you by other members of your House?  Yes.  And you have made mention of Thomas George and Mary  George?  Yes.  Does it come from them as well?  Yes.  Is it -- is what you say in terms of how you came by  your knowledge about Wet'suwet'en laws, is it --  particularly the law against trespass, is this so with  regard to other Wet'suwet'en laws?  Yes.  Now, are there consequences today in respect of  trespass on the territory of Wet'suwet'en chiefs?  Yes.  And what are they?  If a person is using a territory that is -- does not  belong to him or the House, they are always reminded  by the owners.  If it's not the House chief that  reminds them, it's the members of that House that know  this man or a person that is using another territory  without their permission and he is -- that person is  reminded of it very often.  Okay.  And is it -- is there an indication of what  would happen to that person in the event of continued  use or how is continued violation dealt with?  If it's continued, that person will have to -- is  invited to a Feast and it is taken up at that -- in  that place.  And if raised in a Feast, what would be the  consequences to the individual?  What would happen to  that person?  It would be -- it's just -- the person would be there,  but then the chief would say why the Feast is held and  he would be told that he is -- he or she is not  supposed to be at a certain place, not supposed to be  taking food out of -- or food or any animals off that  territory in front of witnesses.  Okay.  Now, there are non-Indian people on the  territories, on a portion of the territories of some  of the chiefs, are there, to your knowledge? 1846  1  A  2  Q  3  4  5  A  6  7  8  9  10  11  Q  12  13  14  A  15  16  17  18  19  20  21  22  Q  23  24  25  A  26  Q  27  28  29  A  30  Q  31  32  A  33  Q  34  35  A  36  Q  37  38  A  39  Q  40  41  A  42  Q  43  A  44  45  Q  46  A  47  Q  Alfred Joseph (for Plfs.)  In Chief by Mr. Rush  Yes.  Yes.  And are these -- what is the consequences for  non-Indian people in respect of their being on parts  of Wet'suwet'en chief's territory?  Well, our people would tell them to -- would tolerate  them, but the -- when our people go there to do their  hunting or trapping, they are told to leave by these  people and there is -- and if any arguments are made  at that time, they are reported and told that they  would be prosecuted and oftentimes are.  What have the chiefs done in respect of the non-Indian  community, people who are on the Wet'suwet'en chiefs  or portions of the Wet'suwet'en chief's territories?  They go to their -- it is reported again to the  people, and it is always brought up that oftentimes  their territory are given to someone else and when  they try to protect those places, they are always --  the chief oftentimes is ignored if he goes to the  authorities, that someone is using his territory.  Not  too often is there any action taken against someone  that's trespassing.  You've told us that, Mr. Joseph, about some of the  impacts on Gisdaywa's territory of other users of that  territory?  Yes.  And do you have knowledge from your own observations  of the impacts on other of the Wet'suwet'en  territories?  Yes.  I want to ask you if you have knowledge of the  territory of Knedebeas.  Yes.  And I am speaking here of the Knedebeas territory to  the south of that -- of Gisdaywa.  Yes.  And have you been in that territory in the last five  years?  Yes.  And have you made any observation about what has  happened on that territory?  Yes.  And what sorts of things have you seen?  I've seen in Knedebeas territory that it's all --  there is no trees in areas that I've visited.  All right.  And is that as a result of logging?  Yes.  All right.  And what part of the territory can you say 1847  Alfred Joseph (for Plfs.)  In Chief by Mr. Rush  1 that you were -- you had visited?  And perhaps you've  2 told us that Bii wenii Ben is in the southern portion  3 of Gisdaywa's territory?  4 A   Yes.  5 Q   And where in relation to that, if you can say, was the  6 logging that you observed?  7 A   Yes.  It's -- it is a road going southeast of Bii  8 wenii Ben.  9 Q   If you would just pause there for a moment.  Yes.  A  10 road south of Bii wenii Ben?  11 A   Yes.  12 Q   All right.  13 A  And it crosses into Knedebeas territory.  14 Q   Yes.  15 A  And it runs southeast towards Vance Lake and that area  16 I went -- drove in there and it was all clear cut for  17 mi1e s.  18 Q   Okay.  Is that off the road?  19 A   It's right up to the road.  20 Q   Okay.  And could you say about what distance from the  21 road it was?  22 A   There is no timber on both sides of the road.  It's --  23 there is no -- there is quite a big area where you  24 drive through the middle of it, of this clear cut.  25 Q   Okay.  Is this to the south of the boundary of the  26 Gisdaywa territory?  27 A   Yes.  28 Q   And are you able to tell us about what distance it is  29 along that road that you made those observations?  30 A  About two miles south of Gisdaywa boundary.  31 Q   Okay.  Now, I want to ask you about another territory  32 and that's the territory of Namox.  You told us that  33 you are over to Sam Goosley Lake?  34 A   Yes.  35 Q   And this lake was located in the territory of Namox?  36 A   Yes.  37 Q   And was there a mine around that lake?  38 A   Yes.  There is a mine about two miles east of Sam  39 Goosley Lake.  4 0 Q   Do you know the name of that mine?  41 A   I read the signs on the building.  It says Equity  42 Silver.  43 Q   All right.  So based on your knowledge of the sign,  44 you understand that to be Equity Silver, is that  45 right?  46 A   Yes.  47 THE COURT:  I am sorry, did you say there used to be a mine or 1848  1  2  A  3 THE  COURT  4 MR.  RUSH:  5  Q  6  7  8  A  9  10  11  12  13  14  15  16  17  Q  18  19  A  20  Q  21  A  22  Q  23  24  A  25  Q  26  27  28  A  29  Q  30  31  32  A  33  Q  34  35  36  37  38  A  39  40  41  42  43  44  45  46  Q  47  Alfred Joseph (for Plfs.)  In Chief by Mr. Rush  there is --  There is a mine.  :  There is a mine.  Yes.  I thought so.  When were you there?  I don't recall from your  evidence yesterday, but I think you told us you were  there in the last five years?  Yes.  I was there sometime in '82 or '83.  First time  I was in there and the mine was there and I took --  well, I took pictures of the -- it's -- I think it's  an open pit mine, and there is a waste pile just south  of this mine and it's -- it was very big.  It was --  it looked like one of the mountains that was there.  And I went back again last month and it is -- the  waste pile I am talking about is a lot bigger than the  last time I seen it.  Okay.  And you say that the mine site is an open pit,  is that right?  Yes.  Okay.  And did you actually see the pit?  You can see all on the side of the hill.  Okay.  Can you say what kind of a -- what area that  the pit covers?  It's a mountain just east of Sam Goosley Lake.  Do you have an idea of -- could you estimate from  where you were located about how wide the pit itself  was?  The pit itself may -- it's about a mile flying in.  Okay.  Could you make any estimate about the width or  circumference of the small mountain or the hill that  was being built up?  It's very -- it's a good size hill right now.  When you were into that territory of Namox, Mr.  Joseph, did you make any other observations apart from  the observations about the mine and the open pit  concerning the use of that territory or the impact of  use on that territory?  Well, just north of the mine itself there is -- seem  to be a small lake and I wasn't too familiar with  mines.  First time I saw it.  So I asked the person  that I was with what's the name of this lake?  And he  said there was no name for it.  He said that was  the -- that was the water that was coming from the  mine.  And it's all different coloured.  I don't know.  Sort of greenish colour.  That was the observation you made about this lake, was  it? 1849  Alfred Joseph (for Plfs.)  In Chief by Mr. Rush  1 A Yes.  2 Q Were you there with Dan Michell?  3 A Yes.  He's the one that I asked about the lake that  4 was there.  5 Q All right.  Now, yesterday, Mr. Joseph, I think you  6 told us that you were up the Kitsegukla Valley with  7 Bazil Michell?  8 A Yes.  9 Q And on that trip up the Kitsegukla Valley with Bazil,  10 did you make any observations about the territory that  11 he took you through?  12 A Yes, I did.  13 Q All right.  Can you tell us about what you saw?  14 A There is lots of logging down in there and you can see  15 the logging going on throughout the whole valley  16 wherever there is no -- there is farms in there, but  17 there is lots of logging going on in there.  18 Q Okay.  There is a road into the valley?  19 A Yes.  20 Q And where does the road go to?  21 A The road comes in from the east from a place called  22 Doughty.  That's the first station east of Moricetown.  23 And the road comes in from there and down west through  24 the valley.  25 Q And how far west does the road run?  26 A About I'd say ten or eleven miles.  27 Q And you made mention in your testimony yesterday about  28 Kitsegukla Lake?  29 A Yes.  30 Q Does it run out that far?  31 A Yes.  It goes past --  32 THE COURT:  Could I have the spelling, please, for Doughty.  33 MR. RUSH:  34 Q There is an English Doughty?  35 A Yes.  36 Q I know it as D-o-u-g-h-t-y.  Is that the same?  37 A Yes.  Yes.  38 THE TRANSLATOR:  Yes.  3 9 MR. RUSH:  40 Q So the road runs out to Kitsegukla Lake?  41 A Yes.  42 Q And can you tell his lordship about the place of the  43 logging along that road, if you could to the best of  44 your recollection?  45 A Well, I drove in there by myself after that and I  46 found the road to -- at that time just about wasn't  47 much separating that logging area from the west, the 1850  1  2  3  4  Q  5  A  6  Q  7  A  8  Q  9  10  A  11  Q  12  A  13  Q  14  A  15  Q  16  17  A  18  Q  19  A  20  Q  21  A  22  23  Q  24  25  26  A  27  28  Q  29  30  A  31  32  33 THE  COURT  34 MR.  RUSH:  35  Q  36  37  A  38  Q  39  40  A  41  Q  42  43  A  44  Q  45  46  47  A  Alfred Joseph (for Plfs.)  In Chief by Mr. Rush  logging area and the western side of Kitsegukla  Valley, and the roads are just about -- from what I  hear now they have joined the roads together.  You mean there is a road coming from --  From the west.  From -- coming in from the west?  From Kitsegukla Valley.  From the west.  Now, the observations that you made, did you see  logging, evidence of logging on both --  Both.  -- sides of the road as you drove --  Yes.  -- in to Kitsegukla Lake?  Yes.  And was there any logging that you observed around  Kitsegukla Lake?  Yes.  And was this logging in the valley itself?  Yes.  Was there any -- did you see any evidence of mining?  Not on the east side, but I know there is mining going  on the west a few years back.  Have you seen -- do you know from your own knowledge  of the existence of a mine and made observation of a  mine in that area?  Not in the valley.  It's up on the mountains, there is  mines on the west side.  I see.  And do you know the name of any of those mines  or just know of their existence?  Yes.  There is, I remember, two mines and one of them  was Red Rose up from Kitsegukla and the other one was  Western Uranium.  :  That's the name out of the past?  Yes.  Both.  Both are.  Red Rose and Western Uranium, they were located up on  the mountains?  Up on the mountains, yes.  Mr. Joseph, did you -- have you been into the Dennis  Lake, the Keel weniits, I think you called it?  Yes.  Dennis Lake.  And McDonell Lake area in the last five  years?  Yes.  And when you were in that area, did you make any  personal observation about the condition of the  forest?  It is -- it's all been logged out. 1851  Alfred Joseph (for Plfs.)  In Chief by Mr. Rush  1 Q When you say all has been logged out, in what areas  2 are you making reference to?  3 A Well, there is logging all the way into McDonell Lake.  4 Q Is this in patches or is it in --  5 A In patches.  6 Q Okay.  And is it along the road?  7 A Yes.  8 THE COURT:  I am sorry, is there a connection between Dennis  9 Lake and McDonell Lake?  10 A Yes.  They are in the -- McDonell Lake is on the west  11 side and Dennis Lake is a few miles east of McDonell  12 Lake.  13 THE COURT:  Oh, I see.  14 MR. RUSH:  15 Q The Keel weniits area I think you said was Wah Tah  16 Kwets' territory?  17 A Yes.  18 Q You said that yesterday.  That's 69, my lord.  And  19 Dennis Lake is in behind Hudson's Bay Mountain?  20 A Yes.  21 Q And as you go farther west, you come to McDonell Lake?  22 A Yes.  23 Q Is that right?  Was there any mining activity that you  24 made note of in your travels along that road?  25 A There is a -- there has always been a mine up in there  26 in the east -- south slope of Hudson Bay Mountain.  27 Q Do you know the name of that mine?  2 8 A Duthie Mine.  29 Q Duthie?  30 A Duthie Mine.  31 Q Duthie?  32 A Yes.  33 Q That's not a Wet'suwet'en word?  34 A No.  35 Q Any other mining in there?  36 A That's the only one that I know of.  37 THE COURT:  How do you spell that, Madam Reporter?  3 8 MR. RUSH:  39 Q Is my best, D-u-t-h-i-e.  40 A Yes.  41 MR. GOLDIE:  Mr. Duthie.  42 MR. RUSH:  43 Q That was the silver mine, was it?  4 4 A I don't remember.  45 Q In your evidence yesterday, Mr. Joseph, you told us  46 about the area of Skin Dyee?  47 A Yes. 1852  1  Q  2  A  3  Q  4  5  A  6  Q  7  8  A  9  Q  10  11  A  12  Q  13  14  A  15  Q  16  17  18  A  19  20  Q  21  A  22  Q  23  24  A  25  Q  26  A  27  Q  28  A  29  Q  30  31  A  32  Q  33  34  A  35  Q  36  37  A  38  39  40  41  42  43  44  45  46  47  Q  Alfred Joseph (for Plfs.)  In Chief by Mr. Rush  Do you recall that?  Yes.  And you told us that you had been out there on at  least one occasion?  Yes.  And could you tell us in the -- you were out to Ootsa  Lake on that occasion?  Yes.  And was that the same occasion you were to Francois  Lake or was that on a different --  Same time.  Same time.  And I think you said that was in the fall  or, no, the spring of '82?  Yes.  Okay.  Did you at that time make any observations  about the condition of the territory around Ootsa  Lake?  Yes.  It was -- there was some sort of a logging going  on at that time.  Where was that located?  In the Ootsa Lake.  Can you tell us what part of Ootsa Lake.  Can you give  us a directional point?  Right -- right in the water.  There was logging in the water?  Yes.  Was there logs in the water?  Yes.  There was trees in the water.  Okay.  Can you tell us do you know how that came to  be?  It was from the flooding of Ootsa Lake.  All right.  Had you seen that area prior to the  flooding?  Yes.  Are you able to say how much the flooding impacted on  the land area that was existed prior to the flooding?  Yes.  I was -- I was there in 1940 and I was in  residential school, and the principal had to take some  children back to Ootsa Lake and I went with him.  And  when we got to Ootsa Lake, it was very -- to me at  that time it was a very small lake compared to Fraser  Lake and that's the way I had pictured it in my mind  from that -- from what I saw then and there was  meadows all around the lake and the people were living  right in that shore of Ootsa Lake and nice flat area  where they were living.  And you went there in 1982? 1853  Alfred Joseph (for Plfs.)  In Chief by Mr. Rush  Yes.  I went back in 1982 and saw and it was  altogether different.  There was spillway there and  the water -- the lake was right up to -- right up to  the hills and there was no meadow there.  It was just  a big lake and there was dead trees sticking out of  the water all along the shore.  So it was quite --  quite a difference from what I've seen in the '40s.  Were you able to -- are you able to make an estimate  about how high the water had risen?  The area it covered it could be about 200 feet.  All right.  From what I saw.  It's just quite a few years since I  went back and saw a huge lake there where a small lake  used to be.  :  You are talking about 200 feet of vertical  difference in level?  Yes.  :  Or 200 feet from the shore?  Difference in the level.  I think you told us yesterday that this was in  Goohlaht's territory as well?  Yes.  URETER:  Number 12.  25 THE COURT:  Sorry?  26 MR. RUSH:  That's number 12.  27 THE INTERPRETER:  Number 12 of the plaintiffs' list.  2 8 MR. RUSH:  29 Q   Now, Mr. Joseph, you told us yesterday as well that  30 you had made a helicopter flight of the — I think you  31 said part of the territory to the north of Smithers.  32 You mentioned Cronin Mountains and Hanee C'et gghexw I  33 think you said, Debencher Peak?  34 A   Yes.  35 Q   And you told us that there was a pass-over flight from  36 there and in the course of that flight certain  37 landmarks were pointed out to you?  38 A   Yes.  39 Q   And do you remember seeing in the course of that  40 flight over the territory any of the impacts of  41 logging or otherwise in that area?  42 A   Yes.  I was -- when we flew over a ridge and I talked  43 to the people that lived or trapped in there and they  44 were telling me where two little lakes were, one of  45 them was on the -- at the foot of Hadat'enee, which I  46 said was lots'wenii yesterday.  47 Q   Hadat'enee?  1  A  2  3  4  5  6  7  8  Q  9  10  A  11  Q  12  A  13  14  15  THE  COURT  16  17  A  18  THE  COURT  19  A  20  MR.  RUSH:  21  Q  22  23  A  24  THE  INTER 1854  Alfred Joseph (for Plfs.)  In Chief by Mr. Rush  1 A   The mountain was Hadat'enee, but the lake was  2 lots'wenii.  3 Q   All right.  4 A  And —  5 Q   I am not sure we got that from you yesterday.  Did we  6 get a spelling from you yesterday on that?  I don't  7 think wet did.  8 A   Lots'wenii.  9 Q   Yes.  Lots'wenii.  That's right.  10 THE INTERPRETER:  245.  11 THE COURT:  That's the lake — I don't know if Madam Reporter  12 got the name of the mountain.  13 THE INTERPRETER:  Hanee C'et gghexw, 242.  14 MR. RUSH:  No.  That was Hadat'enee.  15 THE INTERPRETER:  243.  16 THE COURT:  And the lake number again, please?  17 MR. RUSH:  The lake number, Victor?  18 THE INTERPRETER:  Lots'wenii.  245.  19 THE COURT:  Thank you.  20 A  And they also told me of a lake north of this -- of  21 lots'wenii and they told me that it was all timber.  22 That's where they used to trap, they were telling me.  23 And they were telling me there is nobody out there,  24 so —  25 MR. GOLDIE:  Excuse me for a minute, Mr. Joseph.  My lord, I  26 take it the same observation with respect to the  27 identification of territories also applies to the  28 impact on logging or whatever it is.  29 THE COURT:  Well, I took it — I took this evidence still  30 relating to helicopter flights, which is the subject  31 we started out on some time the day before yesterday  32 which was with -- I take it that this evidence is  33 within that general area where what I am receiving now  34 is hearsay and inadmissible and proof of nothing  35 unless it's authenticated in the way we discussed.  3 6 MR. RUSH:  Yes.  37 THE COURT:  Thank you.  3 8 MR. RUSH:  39 Q   Well, Mr. Joseph, in terms of this helicopter flight,  40 I'm -- if you could tell us what you saw, and I  41 appreciate what others might have said --  42 A   Yes.  43 Q   -- about the same area.  But just in terms of your own  44 observations, can you tell us when you were flying  45 over if you made any observations about the logging or  46 the condition of the forest or mines that you have  47 mentioned? 1855  Alfred Joseph (for Plfs.)  In Chief by Mr. Rush  1 A   Yes.  On our way out from the last place we landed,  2 there was -- there is logging going on at the time.  3 Q   You could see the logging --  4 A   Yes.  5 Q   -- activities itself?  6 A   Yes.  7 Q   Could you place a reference point for us as to where  8 this was happening?  9 A   Yes.  It's a lake that we call Mesdzii del mooh.  10 Q   Mesdzii del mooh.  11 THE INTERPRETER:  244.  12 MR. RUSH:  13 Q   And where in reference to that lake was the logging  14 going on?  15 A   It was logging all around that small lake.  16 Q   Did you make any other observations in that trip about  17 the condition of the territories over which you flew?  18 A   There has been logging all the way back to Moricetown.  19 We went back to Moricetown from there and it was all  20 clear cut a big area.  21 THE COURT:  I am sorry, was that 244?  22 THE TRANSLATOR:  244.  23 THE COURT:  Well, that's the Debencher Peak.  24 THE TRANSLATOR:  244.  25 THE COURT:  Pardon me?  26 THE TRANSLATOR:  244.  Mesdzii del mooh.  27 A  Mesdzii del mooh.  28 MR. RUSH:  Yes.  It's 244.  29 MR. GOLDIE:  Both 244 and 245 are lakes, are they, one north and  30 south of Suskwa River, is that what are to be  31 identified?  32 MR. RUSH:  Yes, I think so.  33 Q   The one that —  34 A   Suskwa.  35 Q   Is that Mesdzii del mooh?  36 A   Yes.  Mesdzii del mooh.  37 Q   Yes.  Mesdzii del mooh.  38 THE COURT:  And do we know whose claim of territory that is?  3 9 MR. RUSH:  Yes.  40 Q   I think you recall the territory in which that's  41 located?  42 A   Yes.  43 Q   And what's that?  44 A   That's Smogelgem.  45 THE INTERPRETER:  60.  4 6 MR. RUSH:  47       Q   Just answer the other queries raised by Mr. Goldie. 1856  Alfred Joseph (for Plfs.)  In Chief by Mr. Rush  1 Lots'wenii?  2 A Pardon?  3 Q Lots'wenii?  4 A Yes.  Lots'wenii.  5 Q That was a lake as well?  6 A That was a lake.  7 Q And was that located in an area that was close to the  8 lake that you have just mentioned a moment ago?  9 A Yes.  It's a cross-over a ridge.  10 Q Okay.   Were there any other observations that you  11 made on that flight, Mr. Joseph, that told you about  12 the condition of the forest or if you noted any other  13 logging or mining on that particular flight?  14 A No.  It was all logging.  15 Q Mr. Joseph, I wanted to ask you if you made any  16 observations about the heli-flight that you took on  17 the day before.  This is the heli-flight that we  18 showed on the video?  19 A Yes.  20 Q In the course of that trip, did you make any  21 observations about mining or logging?  22 A There was logging all the way up the Telkwa River but  23 there is also --  24 Q Was this -- when you say all the way up —  25 A Yes.  All the way through the -- through the territory  26 there was powerline running through there and also I  27 think it was gas, gas line through the territory.  28 Q Is there some way that you could tell that by what  29 you --  30 A There was signs.  31 Q And was there a strip or a swath of --  32 A A strip, yes.  33 Q And could you say where that was in relation to where  34 you were?  I think you mentioned on that time you made  35 four landings on that occasion?  36 A Yes.  It's on the north side of the Telkwa River.  37 Q And again, in reference to the logging that you noted  38 on -- I think you said both sides of the Telkwa River?  39 A Yes.  40 Q Were these patches or was it a continuous --  41 A There were patches.  42 Q Okay.  43 THE COURT:  Can you tell me whose territory this is, please?  44 A Skokumwasaas.  4 5 MR. RUSH:  46 Q Skokumwasaas?  47 A Yes. 1857  Alfred Joseph (for Plfs.)  In Chief by Mr. Rush  1 THE INTERPRETER:  233.  2 THE COURT:  Thank you.  3 MR. RUSH:  4 Q Now, perhaps I am doing this somewhat in reverse  5 order, but there was yet a heli-flight that occurred  6 the day before the one on the video.  I think it was  7 the 23rd of August, 1983?  8 A Yes.  9 Q And did you make any observations during the course of  10 that heli-flight that —  11 A Yes.  There was -- you can -- on the east -- the  12 mountains east of Nanika Lake there is roads all the  13 way up the side of the mountains.  14 Q You could see these roads?  15 A You could see these roads and there is a lot of mining  16 activity in there.  17 Q And was that ongoing when you --  18 A Yes.  19 Q You could see the activity going on?  20 A Yes.  21 Q And from where you -- were you in flight at the time  22 or were you in a stationary point?  23 A In flight.  24 Q Okay.  Were you able to determine on whose territory  25 that mining activity was going on?  26 A That was still on Caspit's territory.  27 Q And Caspit's in?  28 A Goohlaht's House.  29 Q All right.  Mr. Joseph, you -- I want to back you up a  30 bit.  You indicated that you had observed flooding at  31 Ootsa Lake.  Do you have knowledge about how that  32 flooding occurred, what was the cause of the flooding?  33 A Well, I know that there was a dam that -- west of  34 Tahtsa.  35 Q West of Tahtsa?  36 A West of Tahtsa Lake, yes.  37 Q Okay.  Have you seen this dam?  38 A Yes.  39 Q Do you know the name of the dam?  4 0 A It's -- I know it's the Alcan Aluminum Company, but I  41 forget the name of it.  Kemano, I think it is.  42 Q And have you flown over that area?  43 A Yes.  44 Q And is the water backed up behind that dam?  45 A Yes.  46 Q And that's your understanding as to why the water was  47 backed up at Ootsa? 185?  1  A  2  Q  3  Q  4  5  6  7  8  9  10  A  11  Q  12  13  A  14  Q  15  16  A  17  Q  18  A  19  20  21  22  23  24  25  26  27  Q  28  29  A  30  Q  31  32  33  A  34  35  36  37  Q  38  39  40  A  41  Q  42  43  44  45  A  4 6 MR.  RUSH  47  Alfred Joseph (for Plfs.)  In Chief by Mr. Rush  Yes.  All right.  Mr. Joseph, I want to ask you about another area in  your evidence and again pertains to the laws of the  Wet'suwet'en people and relation to the question of  the travel by Wet'suwet'en people over the territory  of other chiefs.  And to your knowledge was -- were  Wet'suwet'en chiefs permitted to travel over the  territory of other chiefs?  Yes.  Okay.  And were there trails that led from the  communities to campsites?  Yes.  Okay.  And were there -- were there laws relating to  the right to travel across another chief's territory?  Yes.  Okay.  And what were they?  They travelled on other territories and they have --  their timing is made so that when they -- at each  other's territories they have a visit or camp in the  owner's territory and keep moving.  But if it happens  that they are travelling over his territory and if  they need food, they could get their food while  travelling through that territory either by shooting  grouse, rabbit, any small animals that they see on the  trail.  Were they able to -- beyond that, were they permitted  to take anything else on another chief's territory?  No.  And in terms of the use of the trail, were other  chiefs required to maintain the trail or stay on the  trail?  If they are going through a territory, one -- one of  the things that they have to watch is if they come  across a trap that they don't go near that trap.  They  make a detour around it.  All right.  Now, in respect of the application of this  law today, are chiefs permitted to travel across the  territory of other chiefs to get to their own?  Yes.  Okay.  And in respect of the laws regarding the use of  other's traps, does that apply today as well in  respect of what you have just said about not using --  not trapping on someone else's territory?  Yes.  Okay.  Well, I am about ready to break into another  whole area, my lord. 1859  Proceedings  1  THE  COURT:  2  MR.  RUSH:  3  4  5  6  7  THE  COURT:  8  MR.  RUSH:  9  THE  COURT:  10  MR.  GOLDIE  11  12  13  MR.  RUSH:  14  15  16  THE  COURT:  17  MR.  RUSH:  18  MR.  GOLDIE  19  20  21  THE  COURT:  22  23  24  MR.  RUSH:  25  26  27  MR.  GOLDIE  28  29  MR.  RUSH:  30  MR.  GOLDIE  31  MR.  RUSH:  32  33  MR.  GOLDIE  34  35  THE  COURT:  36  37  38  1  39  40  MR.  RUSH:  41  THE  COURT:  42  43  44  45  46  47  All right.  I would ask that we adjourn now and insofar as the  timing for tomorrow, I'd propose that rather than 10  o'clock as suggested by my learned friends that it be  eleven that we meet.  Frankly, that will give the  plaintiffs a little more time in the morning --  Yes.  -- to put together what we want to say.  Is that satisfactory, Mr. Goldie?  :  Well, I am just concerned about getting through, my  lord.  I wonder if my friend could indicate how long  his submission might be.  I don't think it will be overly long.  I should think  it would be less than an hour.  Probably less than  half an hour.  This is a hearsay --  Yes.  :  Are we going to deal with the trial reorganization  tomorrow?  I understood that your lordship had invited  us to come back after considering the matter.  Well, I would be happy to discuss that with counsel.  I have some further ideas, nothing very original or  creative.  Of course it's our concern as well that we are  interested in hearing if the Province has instructions  on this.  :  Well, I am interested in hearing if there is a  specific proposal --  There has been --  :  -- to grapple with.  There has been a propose passed.  We are hoping that  the Province --  :  It's so tenuous it can't be dealt with beyond what  was said the other day.  The problem with proposals is, of course, hearsay --  and maybe these two things are tied together, but do  I -- well, let me ask you is it your intention, Mr.  Grant, that we would only deal with these legal  problems tomorrow and we couldn't take evidence?  Yes.  That's my proposal.  All right.  Well, keeping in mind that Mr. Rush  needs some time for preparation, I would think that if  we started at eleven, that we would have time in the  remainder of the morning and the afternoon to deal  with the legal problems that are outstanding.  And  that being so, I think we will reconvene at eleven  o'clock. 1860  Proceedings  1 I will throw out just for consideration the further  2 thought that possibly the wishes of the plaintiff as  3 expressed by Mr. Grant to call their witnesses for the  4 purpose of some parts of their evidence at least might  5 be accommodated by a mixture of both an affidavit of  6 formal matters that might not be controvertial and  7 viva voce evidence in chief on matters that counsel  8 would prefer to have the witness state directly.  What  9 I am really suggesting is hybrid type of examination  10 in chief.  I have spoken to several court reporters.  11 They think that it would take about half of the time  12 or occupy almost half the time in making sure that we  13 have Indian names correctly spelled and correctly  14 identified.  That's a composite.  Someone said higher  15 than that and some said lower.  But I have noticed,  16 for example, that as one would expect, Mr. Rush has a  17 pretty good idea of what this witness is going to say  18 and I would be surprised if he didn't.  I suspect that  19 there is a great deal of what this witness has said  20 relating to, for example, the question of Feasts and  21 the question of locations that might not be  22 cross-examined on at all, or if they are  23 cross-examined on would not be for the purpose of  24 contradiction but for the purpose of some explanation  25 or putting a different shade of meaning on the  26 evidence.  If those kinds of things were put in  27 affidavit, yet the witness still called to viva voce  28 orally say the important things that either the  29 witness wants to say here, counsel want to say, it  30 seems to me we might still save at least half or at  31 least a substantial part of the time taken for  32 evidence in chief.  And I suspect we would save a  33 considerable amount of time in cross-examination.  And  34 it has occurred to me, and I merely pass this on to  35 counsel for their consideration, that the solution to  36 our problem of the apparent or threatened longevity of  37 this trial could be ameliorated in some respects by  38 what I have just suggested or by a combination of that  39 with other things that counsel may be able to propose.  40 I say with the greatest of respect that I do not  41 think modern litigation can afford treating the court  42 like a sponge that has to soak up everything that  43 wants to put before the court.  There are other ways  44 of getting evidence into the record that counsel may  45 think they want to have there for purposes of argument  46 or for purposes of appeal, and I think that the  47 threatened length of this trial requires us to seek 1861  Proceedings  1 ways of insuring that the record is complete without  2 the kind of time consumption that we have experienced  3 in the past five and a half weeks or so at this trial.  4 I'll be very happy to discuss those matters with  5 counsel tomorrow.  Eleven clock.  Thank you.  6  7 (PROCEEDINGS ADJOURNED UNTIL JUNE 26, 1987 AT 11  8 O'CLOCK)  9  10  11 I hereby certify the foregoing to be  12 a true and accurate transcript of the  13 proceedings herein to the best of my  14 skill and ability.  15  16  17 Laara Yardley,  18 Official Reporter,  19 United Reporting Service Ltd.  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

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