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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1988-01-22] British Columbia. Supreme Court Jan 22, 1988

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 2929  1 JANUARY 22, 1988.  2 VANCOUVER, B.C.  3  4 THE REGISTRAR:  In the Supreme Court of British Columbia,  5 Friday, the 22nd day of January, calling the matter  6 many of Delgamuukw against her Majesty The Queen, My  7 Lord.  8 THE COURT:  Thank you.  Ms. Mandell.  9 MS. MANDELL:  Thank you.  10  11 EXAMINATION IN CHIEF BY MS. MANDELL, Continued:  12  13 Q   Mr. Alfred, we were in the middle of talking of  14 fishing when we broke on -- broke yesterday, and I  15 wanted to ask you whether or not at the feast where  16 steelhead from Wah Tah K'eght's territory was  17 distributed for Alec Tiljoe and your wife's  18 grandmother, Annie Michelle, at those two feasts  19 whether you received any pay back from the hosts for  20 your contributing fish to those feasts?  21 A   From Gil Tsayu host, yes.  22 Q   Can you explain to the Court what is a pay back at a  23 feast?  24 A   I receive some money and some good.  25 Q   And I also wanted to ask you, just with respect to  26 some of the questions from yesterday which we didn't  27 completely finish, when you were yourself fishing at  2 8 Moricetown, when you were a younger man, whether any  2 9 of your children would come down with you and fish at  30 that site or help you at that site while you were  31 fishing?  32 A   Yes.  33 Q   And which of your children would do that?  34 A   Ricky came down with me and helped me pack, and so is  35 Lester.  36 Q   And those are two of your three sons?  37 A   Two sons.  38 Q   And your daughters, are their names Delores and  39 Marjorie?  40 A   Yes.  41 Q   And do those children help in any way with respect to  42 preparing of the fish which comes into your household?  43 A   If I get some fish to the house, my wife would prepare  44 for either do the canning or freezing.  Daughters are  45 helping mother.  46 Q   Now, I had asked you just prior to our breaking  47 whether or not there is any place, any lake within 2930  1 your territory where trout are located?  2 A  At Tedeltl'ets.  3 THE INTERPRETER:  372.  4 MS. MANDELL:  5 Q   To your knowledge is there a fish trap on that lake?  6 A   There is.  7 Q   And while you have been chief, have you had occasion  8 to protect that trap against its being removed from  9 your territory?  10 A   Yes.  11 Q   Can you explain to the Court what happened and what  12 you did?  13 A   I don't know exactly the year, but there was some  14 non-Indian came to me and asked me for permission to  15 move the fence -- fish trap, the fence, from that area  16 to some museum, and I told him no.  17 Q   Okay.  And why did you refuse to give your permission  18 to have that fish trap removed?  19 A   It belongs to the previous Wah Tah K'eght's mother.  20 So Peter Bazil was looking after it all through his  21 Wah Tah K'eght.  That's why I said no.  22 THE COURT:  It belonged to Peter Bazil's mother did you say?  23 THE WITNESS:  Yes.  2 4 THE COURT:  Thank you.  25 MS. MANDELL:  And did it also belong to Peter Bazil?  Peter Bazil was the one looking after it.  I don't  think he used it.  I don't know.  It's beyond my time.  How do you know that Peter Bazil looked after it  throughout his lifetime?  My grandmother used to tell me about that story, and  Peter Bazil himself told me, so it's my mother.  And do you have any idea what Peter Bazil did in order  that he would look after that fish trap?  He's trapping out there and he stops at the lake for  camp overnight, and he put new branches under the tree  and then piled it on top again, so it doesn't rot.  Since you've yourself been unable to fish salmon at  Moricetown, has your family had enough fish throughout  the winter?  No.  You mentioned that your father -- I'm now not -- I'm  moving into another area, and I want to have you  answer questions about your in-law responsibilities  and the relationship of you with your in-laws.  You  mentioned that your father would provide meat to Lucy  Pius as part of his Wet'suwet'en obligation to his  26  Q  27  A  28  29  Q  30  31  A  32  33  Q  34  35  A  36  37  38  Q  39  40  41  A  42  Q  43  44  45  46  47 1  2  A  3  4  5  Q  6  7  A  8  Q  9  A  10  Q  11  A  12  Q  13  14  A  15  16  Q  17  18  A  19  Q  20  21  A  22  23  24  Q  25  A  26  Q  27  A  28  Q  29  30  A  31  Q  32  A  33  Q  34  35  36  A  37  Q  38  A  39  Q  40  41  A  42  Q  43  A  44  Q  45  A  46  Q  47  A  2931  wife's house.  Do you recall telling us that?  My dad used to go out to his territory to get some  meat, beaver or moose, and they -- my grandmother just  next door.  They all use.  And do you know whether your father contributed meat  from his territory to a Laksilyu clan feast?  Yes.  Can you remember which feast this was?  My grandmother.  And was his contribution announced at the feast?  Yes.  And do you recall whether there was a pay back to him  from the Laksilyu?  I don't remember, but it's mentioned at the feast hall  where the meat was come from.  And you mentioned yesterday that you provide fish from  Wah Tah K'eght's territory to your wife's house?  Yes.  Have you ever been asked by your wife's House or any  of the members of it to get beaver for their feasts --  My mother-in-law asked me to go to their territory and  get some beaver for them for Alec Tiljoe's feast, and  the next one was Annie Michelle's feast.  And did you get beaver for them?  Yes.  And was that for the Tsayu feast?  Yes.  Was it announced at the feast where the beaver was  taken from?  Yes.  Did you get a pay back at the feast for your help?  Yes.  Have you ever contributed beaver or meat from Wah Tah  K'eght's territory to Tsayu feast to help your in-laws  in that way?  Yes, I did.  Can you recall whose feast that was?  I believe that was Annie Michelle's Headstone Feast.  And was it announced at the feast where the meat had  come from?  Yes.  And did you get a pay back for that contribution?  Yes, I did.  Have you hunted with Buddy Williams on his territory?  Yes.  Is Buddy -- was that by invitation by Buddy Williams?  He called me two weeks before that.  He made 2932  1 arrangement.  He wants me to go to, yes.  2 Q   Would Buddy's invitation to you be part of the way  3 that the in-law clans help one another?  4 A   Yes.  5 Q   Did you provide meat from Wah Tah K'eght's territory  6 to your father's funeral feast?  7 A   Yes.  8 Q   And was that announced at the feast?  9 A   Yes.  10 Q   And do you plan to hunt for his Headstone Feast?  11 A   Yes.  12 Q   And in whose territory would you hunt for his  13 Headstone Feast?  14 A   I will do it on my Wah Tah K'eght territory -- the  15 last time my brother or myself will have permission  16 from Freddie Joseph and hunt on my Dad's territory for  17 the last time.  18 Q   All right.  And why then would you seek Freddie  19 Joseph's permission for this last time?  20 A   Freddie Joseph, he took my Dad's name, Indian name.  21 Q   I'm going to show to you a map which I'm going to ask  22 you to identify, and I'll provide copies at this time  23 both to the court and also to my friends.  24 MR. PLANT:  Perhaps I could ask my friend to confirm what  25 document this is on the plaintiff's list of documents.  26 MS. MANDELL:  My Lord, this map was the base -- the base map of  27 this was taken from a map which my friends gave to --  28 my friend, Mr. Plant, delivered to Mr. Rush on January  29 the 8th.  It's a map which was prepared by officials  30 in the Provincial Ministry of Forests, depicting  31 logging activity within the claims area of Wah Tah  32 K'eght, and the map is twice the size.  It's a map  33 which is this large, and it was reduced by 50 percent  34 to produce the base map.  35 As we understand it, the boundaries for the base map  36 had been taken from Exhibit 102, which was Exhibit 5  37 at the Examination for Discovery of Neil Sterritt.  38 This was a draft map showing the internal boundaries  39 of the claims area.  40 You will probably recall there was a discussion  41 about the map having been provided by the Province  42 under circumstances which the plaintiffs weren't -- at  43 that time prepared to have had that map disclosed.  44 But in any event, the map was -- came into the  45 possession of the Province and was introduced at the  46 discovery of Neil Sterritt, and from our  47 cartographer's best judgment, the map which the MR. PLANT  9  10  11  12  13  14  15 MS.  16  17 THE  18  19  20  21  22  23  24  25  2 6 MR.  27  2 8 THE  2 9 MR.  30 THE  31 MR.  32  33 THE  34 MR.  35 THE  3 6 MR.  37  38  39 THE  40  41  42 MR.  43  44  45  4 6 THE  47  2933  Province delivered then to us is a map which was used  as the base map for this drawing.  Now, the witness will explain how the various lines  were put on the map and what they signify, and that  will be the subject of his evidence now.  I should perhaps rise on one matter of  clarification.  The external boundaries on the base  map which my friend has referred to are in fact taken  from Trial Exhibit 5, which is the map produced by my  friends, marked as an exhibit on the 20th of May,  1987, and my instructions are that the external  boundary of the Wah Tah K'eght territory, as depicted  on this base map, are the external boundaries of the  Wah Tah K'eght area as depicted on Trial Exhibit 5.  MANDELL:  It's not our understanding, but I'm glad to  have --  COURT:  I'm not really sure what this means.  I'm having  difficulty following the history of these maps, but  more seriously I'm trying to figure what the  significance of all this is.  MANDELL:  I don't think that there is any.  Unless my friend  now has an objection, I propose that we proceed with  the evidence.  This map is not a map of the internal boundaries of  Wah Tah K'eght, is it?  My Lord, there is a black line -- black line in the  upper right quadrant.  I can see all of that, but it's not the same, is it?  Excuse me?  It's not the same as Exhibit 84, for example.  Well, it may or may not be, My Lord.  It doesn't  purport to be.  It purports to be the same as --  Exhibit 5.  — Trial Exhibit 5.  I see.  All right.  In approximate terms.  And when I provided a copy of  this logging map to my friends, that was the advice  that I gave them at the time.  All right. But the external or rather the internal  boundaries, if I can call it that, shown on this map,  you say, Mr. Plant, came from Trial Exhibit 5?  Those are my instructions -- the Ministry of Forests  personnel who created the base map, that is to say,  all the black lines on this map were using Trial  Exhibit 5 as the guide.  All right.  And you say, Miss Mandell, on -- I'm  sorry.  MS.  THE COURT  PLANT:  COURT  PLANT  COURT  PLANT  COURT  PLANT  COURT  PLANT  COURT:  PLANT:  COURT: 2934  MS. MANDELL:  We were advised that the external boundaries  depicted in this map I have just produced were taken  from Exhibit 5 in Neil Sterritt's affidavit, which  have become 102 of the trial.  MR. PLANT:  I'm sorry, by whom were you advised that?  Because  if that was my advice to you, then obviously what I  said was incorrect.  My recollection at the moment was  I said that -- when I sent this to my friends, I said  that it was taken from Exhibit 5, Trial Exhibit 5.  If  the advice which my friend is referring to is the  advice that she has received from her experts, then  that, of course, is a conclusion which her experts are  drawing from their review of the map.  COURT:  Well, you say —  PLANT:  Which may be a correct conclusion.  It may be, My  Lord -- not to be cute about this -- that the boundary  of the Wah Tah K'eght territory, as shown on Exhibit  102, may be the same as that shown on Trial Exhibit 5.  I haven't done a careful comparison of those two  boundaries.  You say, Mr. Plant, that this particular map, apart  from the external boundaries, was prepared for the  purpose of showing logging in Wah Tah K'eght's claimed  territory, do you?  As depicted on Trial Exhibit 5.  Yes, right. And from that, Miss Mandell, you have  or your cartographers or others have added something  to do with hunting, I gather?  MANDELL:  That's right.  COURT:  All right.  MANDELL:  I'll lead the evidence as to what the lines are --  COURT:  All right.  Thank you.  MANDELL:  I just wanted, though, for the record, to clarify  that our advice is that the boundaries are the ones as  I have told the Court, that is coming from Exhibit  102.  And I know that it may or may not matter --  MR. PLANT:  The Ministry of Forests personnel have never seen  Exhibit 102, but I am placed in the timorous position  of suggesting to the Court -- to my friends that it  might have been of some assistance if I had been  provided with the coloured depictions on this map  sometime prior to five minutes ago.  MANDELL:  It's going to be the evidence of this witness, and  we can get on with it at this point --  MACAULAY: My Lord, I don't make objection this time, but I  want the plaintiff to know that I will object another  time for a map being put in this late in the day.  The  1  2  3  4  5  6  7  8  9  10  11  12  13  14 THE  15 MR.  16  17  18  19  20  21 THE  22  23  24  2 5 MR.  2 6 THE  27  28  2 9 MS.  30 THE  31 MS.  32 THE  33 MS.  34  35  36  37  38  39  40  41  42  4 3 MS.  44  4 5 MR.  46  47  COURT:  PLANT  COURT 2935  1 rules provide for 7 days notice of a map or plan.  We  2 didn't see any of this, whatever work they have done  3 on this, nor, of course, have we seen any of the  4 markings.  We have seen none of it 'til a minute ago.  5 MS. MANDELL:  Well, My Lord, I might advise, Mr. Henry Alfred  6 could have put the markings on on the stand, and we  7 hoped to facilitate that.  It's not that my friends  8 have been taken aback by the map.  It wasn't  9 provided -- it was provided by them.  10 MR. MACAULAY:  That's no answer.  I will object another time.  I  11 am not objecting this time, so the trial can go  12 forward.  The next time I will object on behalf of my  13 client and stand on our right to have maps, drawings,  14 diagrams and so on in the time that the rules provide.  15 THE COURT: All right.  Thank you.  16 MS. MANDELL:  17 Q   Okay.  Mr. Alfred, do you recognize the map that's in  18 front of you?  19 A   Yes.  20 Q   And you have seen that map before?  21 A   Yes.  22 Q   Did you describe where the hunting, trapping, fishing  23 and berry picking places were on your territory to me  24 with the map in front of you?  25 A   Yes.  26 Q   And did myself and Richard Overstall put coloured  27 markings on the places which you described in my  28 presence?  29 A   Yes.  30 Q   And did you approve of the markings as they were  31 placed on the map by us?  32 A   Yes.  33 Q   I would like to ask you some questions about what the  34 various markings mean.  You've indicated with a double  35 line -- a black and a moss green line which follows  36 K'aaz Kwe, there is a line there that you have made,  37 actually two lines.  Could you explain to the court  38 what that line represents?  39 MR. PLANT:  I may have misheard the evidence.  I thought that it  40 was Miss Mandell and Mr. Overstall who made the lines,  41 and that's not what Miss Mandell has suggested by the  42 last question.  43 MS. MANDELL:  My Lord, the process that was described was that  44 the actual coloured pencils were in the hands of  45 myself and Mr. Overstall.  Mr. Alfred oversaw the  46 placing of the lines on the map and approved them  47 where they were.  The lines were then placed. 2936  1 THE COURT:  All right.  The question is, what does this double  2 line mean starting along K'aaz Kwe?  Can you tell us  3 that, Mr. Alfred?  4 THE WITNESS:  We'll start here at the — on the river, follow  5 the river up the stream to K'aaz Kwe, and the boundary  6 line follows K'aaz Kwe to K'aaz Kwe nuk (?) right up  7 to Nee biil dii yee.  8 THE COURT:  And what is that line?  9 THE WITNESS:  Boundary line of Wah Tah K'eght territory.  10 MS. MANDELL:  11 Q   And is that your northern boundary?  12 A   That's north —  13 MR. MACAULAY:  That's something new, I think.  That's the reason  14 these maps should be provided beforehand, so we'll  15 have some -- that is brand new.  That is nothing --  16 this has nothing to do with logging and hunting.  This  17 is boundaries.  It's a brand new line, never heard of  18 it before.  19 THE COURT: Part of the burden the plaintiff has assumed in this  20 case, for reasons which aren't entirely clear to me,  21 is to establish these internal boundaries.  Now, this  22 evidence of internal boundaries that you are hearing  23 now, as you say for the first time, may be favourable  24 to you or may be unfavourable, but it's still  25 evidence, is it not?  26 MR. MACAULAY:  It's not a question of whether it's favourable to  27 one party or not favourable to another party.  We  28 can't even follow the evidence when these things are  29 dropped on us on a thirty second notice.  I just  30 happened to notice that because I have been looking at  31 their other map.  32 THE COURT: Well, I take it then, Mr. Macaulay, your objection is  33 to the production of this map at this time?  34 MR. MACAULAY:  Yes.  I thought, when I looked at it a few  35 minutes ago, that it looked -- although it was a  36 rather rough boundary -- that it conformed in a  37 general way to what I understood to be Wah Tah  38 K'eght's territory.  39 THE COURT: Well, it's a startling different boundary that is  40 being described, but it seems to me that your  41 objection has to either go to the production of the  42 map and the use of it at this time or not.  A moment  43 ago you weren't objecting.  Are you now objecting?  44 MR. MACAULAY:  No.  Only because the evidence is going to be —  45 this witness will be back and giving evidence in a  46 week's time.  That's the reason.  But I am making the  47 point that this is the reason.  It isn't -- we have -- 9  10 MR.  11  12 THE  13 MR.  14  15 THE  COURT:  2937  1 at a certain point we have to follow the ordinary  2 rules, and I am making a point to Your Lordship that  3 that kind of thing is the reason.  I don't know what  4 else --  5 THE COURT: Well, I can understand your surprise and your  6 uneasiness about being faced with evidence that seems  7 to be at variance with what you expected, but if  8 you're not objecting to the evidence being led at this  time, then it seems to me that we should proceed.  MACAULAY:  I'm uneasy is a good word.  It's Mr. Overstall —  is that the name, Overstall?  COURT:  Yes.  MACAULAY:  Was drawing the line, not the witness, which  makes it all the more awkward.  Mr. Overstall or Ms. Mandell drew it where Mr.  Alfred told them to draw it.  It's the same thing, I  think --  I am going to rise, if I might, My Lord, to amplify  Mr. Macaulay's concern.  Your Lordship may recall that  I spent sometime examining Mrs. Alfred on the question  of location of boundaries.  COURT:  Yes.  PLANT:  And I conducted that examination through the benefit  of a map which did not have the location on it -- very  many of the places that are described in the  affidavit, and conducted much of that  cross-examination entirely into the dark as to the  location of the places that the witness was testifying  about, especially in relation to the names of certain  mountain peaks.  Now, very conveniently, after the  conclusion of that cross-examination, my friends are  kind enough to provide us with a map that does show  the names of some places which are on the affidavit.  So for the first time I am enlightened as to where on  the earth the place Nee biil dii yee is.  I certainly -- I hasten to point out that in the  affidavit the place with that name was described as a  peak at the head of K'aaz Kwe.  On my reading of the  topographical maps, given the description of that  nature, that allowed for many square miles of places  that could be described, conceivably, as the head of  K'aaz Kwe.  I have not had an opportunity at this  point to check the other places that are now labelled  on this map as being, presumably, places on the  boundary of the territory of Wah Tah K'eght.  It makes  the case impossible to conduct, from my perspective,  and placed in a position of having to try and cross  16  17  18 MR. PLANT  19  20  21  22 THE  2 3 MR.  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 1  2  3  4  5  6  7  8  9  10  11  12 MS.  13  14  15  16  17  18  19 THE  2 0 MS.  21 THE  22 MS.  23 THE  2 4 MS.  25  26  27  28  29  30  31  32  33  34 MR.  35  36  37 THE  3 8 MR.  39  4 0 THE  41  42  43  4 4 MS.  45  46  47  2938  examine a witness on an affidavit who doesn't read and  doesn't read maps, to find out where certain places  are, and then the next day to be provided with a map  that shows -- after the witness has been excused, to  be provided with a map which shows somebody else's  idea of where all these places are is a very difficult  problem for me.  I am going to take the same position as Mr.  Macaulay.  I am not going to object to this map at  this time, but I want my position and my concern on  the record.  MANDELL:  My Lord, if I could just add to the discussion.  On December 17th my friends were provided with the  territorial affidavit of Madeline Alfred, and in that  territorial affidavit, on the question of boundary,  the following is the description of the boundary as  she describes it.  It's found at paragraph 5 on page  COURT:  Just a moment please.  MANDELL:  This is Exhibit 120.  COURT:  Just a moment please.  MANDELL:  Tab 2 of the boundary.  COURT:  Yes.  Yes.  MANDELL:  You will see the — 5  lines from the bottom of the  paragraph:  "A peak at the head of K'aaz Kwe."  And then the English name of K'aaz Kwe.  This is the  name -- the spelling as it's taken from the government  maps, which you might recall my friend opposed that  those English names were put in.  But in any event,  it's there and --  PLANT:  Miss Mandell, with the greatest of respect, that's  not the position I ever took on placing the English  names in the affidavit.  COURT:  I haven't heard that objection.  PLANT:  That is a gross characterization of my position or  any position.  COURT: We are in enough trouble now without exaggeration.  I  have never heard it suggested that there is any  objection of the use of English names that I have  heard of.  MANDELL:  I might have misunderstood a discussion which was  there.  "A peak at the head of K'aaz Kwe." 2939  1  2 With the English named spelling of the word.  3  4 "The boundary then follows the south bank of  5 K'aaz Kwe to its mouth at Wedzen Kwe (Bulkley  6 River)"  7  8 Which is what is now shown in the map.  9  10 "Where it crosses to the west bank of Wedzen  11 Kwe, which it follows to the starting point  12 at the mouth of Sde Kep."  13  14 Which is Porphry Creek.  15 Now, My Lord, there is the description of the  16 northern boundary of the territory, which my friend,  17 had he plotted on a map, could have easily have  18 identified himself a month ago or several weeks ago.  19 MR. PLANT:  Unfortunately my maps don't have Nee Biil dii yee on  20 them, which makes it a little hard to plot them on a  21 map.  22 MS. MANDELL:  If my friend may let me finish what I have to say.  23 K'aaz Kwe is clearly identified as the northern  24 boundary by Madeline Alfred, and my friend has had  25 this information for quite some time.  26 I might also mention that the interrogatory map, the  27 one that has been used by my friend, was marked  28 "draft", and there's been no suggestion by the  29 plaintiff that that will be the evidence, the final  30 evidence presented with respect to the boundaries --  31 presenting the evidence of the boundary.  32 My friend had plenty of notice of K'aaz Kwe being a  33 boundary, and if he's confused, he could write to us  34 or plot it on a map according to his own direction,  35 but it's certainly not now a surprise to him that  36 K'aaz Kwe's the northern boundary.  This in fact was  37 further evidence which Miss Madeline Alfred gave on  38 the stand.  39 MR. PLANT:  I am not suggesting that there was any confusion  40 about K'aaz Kwe, My Lord.  It's these places:  Nee  41 biil dii yee, Haneec'et gehw and Ts'edeed K'ai, Caas  42 Weniige'tet T'ay or whatever they are on this map that  43 cause me a little bit of a problem.  44 MR. MACAULAY:  May I say something about that?  I was entitled  45 to rely on Exhibit 5 as the boundary of this house --  46 that's the plaintiff's exhibit -- when, for instance,  47 the overlay for that miniature map was drawn, Exhibit 2940  1 5 was used.  And why shouldn't it be?  It was their  2 boundary.  My friend, Miss Mandell, is suggesting that  3 having been provided with Exhibit 5 and earlier being  4 provided with Exhibit 84 over, you know, these last  5 two years, that we should have -- I should have been  6 alerted to the fact that there was an entirely  7 different boundary described in words, which is very  8 difficult to follow, very difficult.  9 Our cartographer could, I suppose, if we had  10 twigged, if we had some reason to check that written  11 description, we might have discovered that.  I can't  12 think of any situation that illustrates better the  13 necessity for deliveries, at least in accordance with  14 the rules of maps, that are going to change  15 everything.  16 THE COURT:  Well, there is no doubt that it would have been  17 helpful.  I don't know when this map that's just been  18 tendered was prepared, and that -- and nor --  19 MR. MACAULAY:  Obviously knew about this change in boundary  20 weeks ago, because the affidavit was delivered weeks  21 ago, but there was no altered map.  22 THE COURT:  No.  It's a question of comparing leaps and bounds  23 with descriptions.  24 MR. MACAULAY:  It's pretty difficult to do.  25 THE COURT:  With lines on a map.  26 MR. MACAULAY:  Especially when one is hurled into a false sense  27 of security, I suppose, by Exhibit 5.  Well, there it  28 is.  We know where the boundaries are, and we prepared  29 the cross-examination of any given member of a given  30 house in relation to that, and no use in asking a man  31 from Wah Tah K'eght about Woos' territory and so on.  32 THE COURT:  I suppose, Ms. Mandell, that the substantial  33 reduction in the claimed territory on behalf of the  34 plaintiff, Wah Tah K'eght, results in an increased  35 claim somewhere else, does it?  36 MS. MANDELL:  Well, that's — in one —  37 THE COURT:  Where does this northern no man's land come to rest?  38 MS. MANDELL:  Well, two chiefs, Woos and Caspit, will be the  39 ones which will be dealing with the areas further.  40 THE COURT:  So their boundaries are changed also?  41 MS. MANDELL:  I might advise and remind the court, Exhibit 5 was  42 tendered for identification only, and the witness,  43 Alfred Joseph, has already looked at Exhibit 5 and  44 made changes with respect to his boundary, which he  45 then tenders as his evidence, and --  46 THE COURT:  Will counsel remind which is the exhibit, or if it  47 is an exhibit that is attached to the Statement of 2941  1 Claim.  2 MR. PLANT:  That map only shows the external boundaries, My  3 Lord.  4 THE COURT:  All right.  So that doesn't affect this.  5 Well, I don't know that I can be of much assistance  6 to counsel.  I understand the position of both  7 parties.  I can understand why the defendants are  8 uneasy.  As I said a moment ago, a plan being produced  9 at this time, and I think that the concern has some  10 increased force because of the fact that Madeline  11 Alfred was put forward as a major witness and  12 cross-examined on the same territory before the map  13 was produced, but I don't really think at the end of  14 the day this is going to be the turning point in the  15 case.  I think we have to carry on and do the best we  16 can.  The defence is going to have a week to prepare  17 for the cross-examination of this witness in any  18 event.  19 MR. MACAULAY: Not just this witness, My Lord, the last witness,  20 different questions would have been asked of the last  21 witness.  The last witness referred to Exhibit 84 in  22 chief.  23 THE COURT:  The only way I can deal with that, Mr. Macaulay, is  24 to permit an application for further cross-examination  25 of Madeline Alfred, if at the end of the day that  26 seems to be something that fairness requires.  I'm not  27 in a position to say at the moment whether that  28 argument could be made, nor should I anticipate what  29 your friends' response will be, but I think that that  30 is the only thing I can say now, is that if it turns  31 out that there must be further cross-examination of  32 Madeline Alfred, then sobeit, but I'm not able to  33 predict that result at this time.  34 MR. MACAULAY:  There is another thing.  There is a no man's land  35 now.  We don't know whose territory that northern area  36 is, but is the next witness after -- next witness  37 after this going to deal with that, or who is going to  38 deal with that?  39 MR. PLANT:  We've made the usual late night effort to try and  40 follow the affidavit of the next witness that's coming  41 along after Mr. Alfred, and with topographical maps  42 and the descriptions that are contained in that  43 affidavit.  It appears that the next witness that my  44 friends have indicated that they intend to call is Mr.  45 Alfred Mitchell, will be offering by way of affidavit  46 evidence concerning the territory, or at least much of  47 the territory that's in the area that appears to have 2942  1 been blocked off so-to-speak.  2 THE COURT: All right.  As I said, I have yet to understand the  3 need for the evidence on internal boundaries, but I'm  4 hoping that will come clear to me at some point.  5 MR. MACAULAY:  I can't speak to the need for it, but I'm sure my  6 friends, the plaintiffs, have carefully thought that  7 out.  But at least we -- if we know what the internal  8 boundaries are, and I thought until today I did, then  9 we could confine the cross-examination to those --  10 within those boundaries, rather than go all over the  11 map.  12 THE COURT:  Yes.  Well, as I say, it seems to me that I have  13 raised this before, that the plaintiffs have taken on  14 the burden to prove the internal boundaries.  If they  15 think that's something they have to do or ought to  16 do -- and I am going to leave that with them -- I  17 think that the argument that I have just heard, or  18 discussion, perhaps, is a more accurate description,  19 does point out the need for the timely -- early and  20 timely disclosure of any changes in what has been put  21 forward.  I agree and recognize that Exhibit 84 was  22 put forward with a stamped "draft copy" in large  23 lettering, but nevertheless it was delivered with  24 particulars -- with interrogatories, rather, and I  25 think the defendants were entitled to assume that was  26 going to be the evidence, until they are advised  27 otherwise.  28 So I'll confine myself to that for the moment and  29 suggest we proceed.  30 MS. MANDELL: My Lord, I appreciate your comments.  If I could  31 just, though, ask for clarification with respect to  32 this.  The reason why the affidavit rule of 14 days  33 was given, I thought, was to give our friends the kind  34 of advance notice with respect to boundaries that they  35 may need, and that's what we did.  And I just wanted  36 to say that clearly, because it seems to us that we  37 had given the notice which was required from the  38 court's directions on this point.  39 THE COURT:  Well, you are quite right.  Mr. Plant agrees with  40 you that he was able to determine that north boundary  41 from a careful reading of the descriptions, but that  42 doesn't tell him what to do with the rest of the case.  43 Again, the cleaning lady wasn't going to pick that  44 vast territory up and carry it away.  Something has to  45 go somewhere, and that hasn't been made apparent yet,  46 I gather, or has it?  I'm looking forward to the next  47 chapter of this mystery.  Go ahead, Ms. Mandell. 2943  1 MS. MANDELL:  Mr. Alfred, you had in your earlier answer, long  2 before this discussion, mentioned two Wet'suwet'en  3 words on the northern boundary, and we would like to  4 try and get the spelling of the -- both of them.  5 Mr. Mitchell, could you direct the question, then,  6 to Mr. Alfred as to the word which you would like the  7 pronounciation for?  8 THE INTERPRETER:  You asked a question before everybody started  9 jumping up and down here.  One of them was Wed'zen Kwe  10 and the other word started with an S.  11 MR. PLANT:  Was it something that Miss Mandell said?  She was  12 reading from the -- S-d-e C-e-p (sic) Creek.  13 MS. MANDELL:  14 Q   You indicated that K'aaz Kwe is the northern boundary  15 of your territory.  Who told you that that boundary  16 was your northern boundary?  17 A  My grandmother, Peter Bazil, also my mother.  18 Q   And you will notice that around the map there are a  19 number of Wet'suwet'en place names which are  20 identified with black letters.  Are those the place  21 names which Peter Bazil indicated to you when you went  22 out with him on the territory in 1963?  23 A   Yes.  24 Q   I wonder if you could start at the northern boundary  25 and identify the place which Peter Bazil showed to  26 you.  Perhaps we can begin at this corner.  27 A   Nee biil dii yee.  North corner --  28 THE COURT:  I'm sorry?  29 THE WITNESS:  — of the boundary.  30 THE INTERPRETER:  It's 367.  31 MS. MANDELL:  32 Q   And then moving --  33 THE COURT:  That's not on the map, is it?  34 MS. MANDELL:  Yes, it is, My Lord.  It's in the north corner  35 just above the red line which is marked number 2.  36 THE COURT:  Oh, I'm sorry, I was looking at the other north  37 corner.  Nee biil dii yee.  Yes.  Thank you.  38 MS. MANDELL:  39 Q   We just mentioned K'aaz Kwe?  40 A   Yes.  41 Q   And?  42 A  Wed'zen Kwe.  43 Q   Could we have a spelling of that?  44 THE INTERPRETER: It's number 150.  45 MS. MANDELL:  4 6       Q   And do you know the name of this creek?  47       A   Porphry Creek. 2944  1 Q   And this is the creek on the north part of the  2 boundary between the Bulkley Valley and the area  3 immediately to the corner of the blue mark line,  4 "goats".  5 THE INTERPRETER:  509.  6 MS. MANDELL:  7 Q   And then coming down the west side of your territory,  8 you have a name marked on the map beside the word  9 "goats"?  10 A   Caas Weniige'tet T'ay.  11 Q   And then continuing along the west side, I would like  12 to draw to your attention -- there is a lake called  13 Kitsegukla Lake down the west side of the territory,  14 and there is another little lake on the other side of  15 that line.  Do you know the name of that little lake?  16 A   I think my grandmother calls it Tai tzen.  17 MS. MANDELL:  Could we have the spelling for that, Mr. Mitchell.  18 THE INTERPRETER:  T-a-1, underline, t-z-e-n.  19 THE COURT:  Sorry.  Start again please.  20 THE INTERPRETER:  T-a-1, underline, t-z-e-n.  21 THE COURT:  Thank you.  22 MS. MANDELL:  23 Q   Do you know of the area between Kitsegukla Lake and  24 Tai tzen?  25 A   Teeteet.  26 THE INTERPRETER:  373.  27 MS. MANDELL:  2 8       Q   And then following the boundary around the corner and  29 into the south side of your territory you have  30 identified another place here.  Which is that place?  31 A   Ts'edeed K'ai.  32 THE INTERPRETER: T-s'e-d-e-e-d, K'-a-i.  33 MS. MANDELL:  34 Q   Slightly different than the spelling on the map, but  35 it's the same place.  And this is the name that Peter  36 Bazil identified to you?  37 A   Yes.  38 Q   And then your boundary continues along the south side  39 following a creek which has been marked Driftwood  40 Creek.  Is that your understanding of where the  41 boundary goes?  42 A   Yes.  43 Q   And can you recall who advised you of the boundary,  44 being Driftwood Creek on the south side of your  45 territory?  46 A   Peter Bazil.  47 Q   Okay.  And then you -- your boundary rounds the corner 2945  1 on the east side that -- you have identified a  2 landmark there just behind the word "goats".  3 A   Haneec'et gehw.  4 THE INTERPRETER:  242.  5 MS. MANDELL:  6 Q   And was that also identified to you by Peter Bazil?  7 A   Yes.  8 Q   Could you advise the court whether you would judge  9 that you know all of the Wet'suwet'en place names and  10 boundary points within your territory at this time?  11 A   Not all of them.  12 Q   And are you still learning place names and boundary  13 points?  14 A   Yes.  15 Q   And who are you learning from?  16 A  My mother's only one left now, so I guess my mother.  17 Q   All right.  Now, there are a number of places marked  18 in blue on the map where you've indicated that those  19 places have goats or have got the word "goats"  20 indicated on the map.  The areas there indicated by  21 the blue shapes with the word "goats" inside, what are  22 those areas intended to show?  23 A   That's where we go to goat hunt on the mountain.  24 Q   Okay.  And is it your understanding that those places  25 are good goat hunting areas?  26 A   Yes.  27 Q   Okay.  Since you have taken the name Wah Tah K'eght,  28 have you yourself gone goat hunting at all in those  29 locations?  30 A   Yes.  31 Q   What season of the year is goat hunting?  32 A   In the fall, late fall.  33 Q   Would you -- can you say whether you go goat hunting  34 every year, or is it something that you do more  35 periodically than that?  36 A   Not every year.  Maybe every second year I would say.  37 Q   All right.  Is there anyone else from your House who  38 also, to your knowledge, goes goat hunting regularly  39 in the territory or has since you have become chief?  40 A   Cecil.  41 Q   That's your brother Cecil.  Looking at the area, goat  42 hunting area below Porphry Creek, can you advise  43 whether there have been others from either your own  44 clan or another clan who have hunted with you in that  45 area?  46 A   That would be on the west end?  47 Q   That's right.  It's this area here. THE  MS.  8 THE  9 MS.  10 THE  11  12  13 MS.  14 THE  15 MR.  16  17 THE  18  19 MS.  2 0 THE  21 MS.  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  PLANT:  COURT:  2946  A   Yes.  Q   And who have hunted there with you?  A   Dan Michelle.  COURT:  Porphry Creek isn't marked on this map, is it?  MANDELL:  It's the very top line, My Lord, on the north  boundary between Highway 16 and the western boundary.  It's the bar right across the top.  COURT:  It's not shown as a creek, I gather.  MANDELL:  No, it's —  COURT:  What is this broken line between the north boundary  and Bolder Creek, a solid and then a dot and then  solid and a dot?  MANDELL:  I don't know.  COURT:  All right.  It may be some representation of some governmental  administrative district.  All right.  But the northwest boundary is along  Porphry Creek, is it?  MANDELL:  That's correct.  COURT:  All right.  Thank you.  MANDELL:  Q   We were describing the fact that Dan Michelle had  hunted goats with you in the area just below Porphry,  and I was asking, then, was anybody else with you or  do you know of other people who hunted with you in  that area?  There was Dan, Cecil and my youngest boy, Lester.  All right.  And yourself, were you there?  And myself.  And do you recall whether -- Dan Michelle is Tsayu, is  that correct?  Yes.  And do you recall whether you invited Dan or whether  he sought your permission to hunt with you at that  time?  I invited him to come.  And can you recall whether the -- first of all, did  you catch any goats at that time?  Yes.  Can you recall how many?  Dan had one, Cecil had one and myself three.  All right.  And would you have been able to have  caught more goats on that occasion?  Before we left from the timber lineup to the mountain  we had -- we said just three, that's all we are going  to get.  And then what happened when you were up there?  A  Q  A  Q  A  Q  A  Q  A  Q  A  Q  A 1  A  2  3  4  5  6  7  Q  8  9  A  10  11  12  Q  13  14  15  A  16  Q  17  A  18  19  Q  20  A  21  Q  22  23  24  A  25  Q  26  27  A  28  Q  29  30  31 THE  COURT  32 MS.  MANDE  33  Q  34  35  36  A  37  Q  38  39  A  40  Q  41  42  A  43  Q  44  45  46  47  2947  We run into a big herd of goat, and Dan was down  below, and he told us to go around that mountain and  get up on top, and we did.  And we waited, and Dan  chased them up to us.  And he said, "Either one of you  hear shot three times, quit there.  No more."  And we  did, we got three.  Okay.  And why did you limit yourself, then, to three  goats at the time?  There is four people went up there and that's good  pack going back home.  We want to leave some for next  year.  And can you advise whether the goats from that  particular hunting trip, did any of them end up at a  feast?  Yes.  Whose feast was that?  Do you recall?  My mother dried it, and it was distributed at my older  brother's feast.  And was that Andrew's?  Yes.  And do you recall if there was an announcement at the  feast that the goats had come from Wah Tah K'eght's  territory?  Yes.  Was there a pay back to Dan Michelle at that feast for  his hunting?  Yes, we did.  I wonder, then, if you could turn to the goat hunting  area marked in the south end of your territory.  My  Lord, it's by Hudson's Bay Mountain.  :  Yes.  jL:  Can you recall whether you have been in that area with  anybody other than -- with anybody else to hunt goats  either from the Laksilyu clan or from another clan?  I went with Alfred Michelle.  All right.  Now, Alfred Michelle is not from the  Laksilyu clan?  Tsayu.  And did he come by your invitation, or did he seek  your permission?  Yes, my permission.  Permission, okay.  And if you could then turn to the  goat area at the east end of your territory.  Can you  recall whether in recent years you've been in that  part of your territory hunting goats with anybody  either from your clan or from another clan? 1  A  2  Q  3  A  4  Q  5  A  6  Q  7  A  8  Q  9  A  10  Q  11  12  A  13  Q  14  15  A  16  Q  17  18  A  19  Q  20  A  21  Q  22  23  A  24  Q  25  26  A  27  Q  28  29  30  31  A  32  33  Q  34  A  35  Q  3 6 MS. ]  yiANi  37  38 THE :  reg:  39  40  41  42  43  44  45  46  47  2948  Victor, Chester.  Just a minute.  Victor Jim?  Victor Jim.  And Chester Williams?  Chester Williams.  Victor Jim, he's from Tsayu clan?  That's right.  And Chester Williams, is that Buddy Williams' son?  That's right.  And were those two people there either by your  invitation or with your permission?  Yes, I asked him to come with me.  And do you know -- first of all were there any goats  caught on that occasion?  Yes, we got two.  And do you know whether the goats which were caught on  that occasion were used at a feast?  Yes.  Whose feast was that?  My father's.  That's your father's funeral feast.  Was it announced  at the feast where the goat meat had come from?  Yes.  And was there a pay back either to Victor or to  Chester or to both at that time?  To Victor, yes, yes.  All right.  Can you recall -- perhaps I can ask it  this way.  When you catch goat and you are not with  anybody, if you're just alone catching goats, what do  you then do with the meat and with the skin?  The meat, like I said before, I stopped at my mother's  and distribute it from there on.  Okay.  And is there any use made of the goats' skin?  Sometimes use it for floor rug, but nothing else.  Okay.  LL:  My Lord, this may be an appropriate time for the  break.  I am going to move into a new area.  rRAR: Order in court.  This court stands adjourned  briefly.  (PROCEEDINGS ADJOURNED FOR A SHORT RECESS) 2949  1 I HEREBY CERTIFY THE FOREGOING TO  2 BE A TRUE AND ACCURATE TRANSCRIPT  3 OF THE PROCEEDINGS HEREIN TO THE  4 BEST OF MY SKILL AND ABILITY.  5  6  7 LORI OXLEY  8 OFFICIAL REPORTER  9 UNITED REPORTING SERVICE LTD.  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 2950  1 (PROCEEDINGS RECONVENED AT 11:30 a.m.)  2  3 THE REGISTRAR:  Order in court  4 THE COURT:  Ms. Mandell.  5 MS. MANDELL:  6 Q   Thank you.  7 Mr. Alfred, since you've taken the name Wah Tah  8 K'eght, have you hunted moose on your territory?  9 A   Yes.  10 Q   And what season of the year is it that you go to hunt  11 moose?  12 A   In the fall.  13 Q   And have you hunted moose every year, to your  14 recollection?  15 A   Yes.  16 Q   Now, I'm going to ask you to turn to the map that's  17 now in front of you, and to look at the area which  18 we've marked in purple which says "good moose hunting  19 before logging".  Do you see the area I'm referring  20 to?  21 A   Yes.  22 Q   When you received the name Wah Tah K'eght and when you  23 first began to hunt moose on the territory, would you  24 hunt moose in that area?  25 A   Yes.  26 Q   And can you describe for the court what -- what was  27 the moose habitat like there?  28 A   Before the logging?  29 Q   Yes.  30 A   Before the logging, moose hunting was good, really  31 good.  32 Q   Did you hunt over the whole area which was shown in  33 the -- which is shown in the map which has itself --  34 has been indicated "good moose hunting before  35 logging", did you hunt over that whole area?  36 A   Yes.  37 Q   Were there any salt licks in that area?  38 A   Yes, there is couple, couple places.  39 Q   Okay.  Now, you've indicated to the right of that area  40 towards your southern boundary, words which say "still  41 good moose hunting"?  42 A   Yes.  43 Q   Can you explain to the court first of all whether you  44 hunt moose in that area today?  45 A   Yes.  46 Q   And are there any moose left to be hunted in the area  47 which you earlier indicated had been good moose 2951  1 hunting before logging?  2 A   Before logging was good, but after logging there is no  3 more sign of moose anymore.  4 Q   Okay.  Before you received the name Wah Tah K'eght,  5 had you hunted moose in that territory?  6 A   Yes.  7 Q   And who would you hunt moose with?  8 A  Andrew.  9 Q   Your brother Andrew?  10 A  Andrew, late Andrew.  11 Q   Um-hmm?  12 A   Cecil and Adam Brown.  13 Q   All right.  This was before you received Wah Tah  14 K'eght or after?  15 A  When I took that -- Andrew was before, but after I  16 took the name, Cecil, Adam Brown was out with me.  17 Q   Right.  And when you hunt moose today, how do you  18 access the moose?  19 A   If I get a moose I will stop at my mother's place and  20 that -- then we will distribute it from there.  21 Q   I meant to ask you how do you get into your territory  22 to get to the moose, what access do you use?  23 A   Oh, sorry.  Now, today?  24 Q   Today, yeah?  25 A   Today I can drive back on a logging road little ways  26 and then I walk from there.  27 Q   All right.  And can you indicate on the map  28 approximately where you would stop on the road and  29 then walk in?  30 A   On which, good area or before logging?  31 Q   No, now?  32 A   Now?  33 Q   Yes?  34 A   There is Meed Creek there.  35 Q   Um-hmm?  36 A   You follow that road a little ways back to this last  37 and then you walk over.  38 MS. MANDELL:  All right.  My Lord, for the record, Mr. Alfred  39 has indicated that there is a road approximately which  40 follows Meed Creek.  41 THE COURT:  Yes, I see that.  42 MS. MANDELL:  And mentioned the area -- there is three irregular  43 shaped -- shapes in the middle of what is marked as  44 line four which is the slash area, and then he  45 indicates that he walks from there south.  46 THE COURT:  What does the red broken line mean?  47 MS. MANDELL:  That will be later identified as one of the 2952  1 trapping lines.  2 THE COURT:  Right, right  3 MS. MANDELL:  4 Q   Before the time when the moose were -- had moved more  5 towards the southern part of your territory, how did  6 you -- and before the logging, how did you access the  7 moose then?  8 MR. PLANT:   My Lord, there is no evidence that the moose moved  9 south.  I mean the question is --  10 MS. MANDELL:  All right, I'll change the question.  11 THE COURT:  All right.  12 MS. MANDELL:  13 Q   When moose were in your territory in the area which  14 you've indicated was good moose hunting before  15 logging, how did you access the moose at that time?  16 A   Before the logging?  17 Q   Yes?  18 A   I walk from Whums C'oo Wenii back along the creek and  19 up on the hill.  20 MS. MANDELL:  All right.  My Lord, perhaps we can get first the  21 Wet'suwet'en spelling for Whums C'oo Wenii.  22 THE TRANSLATOR:  Five hundred and seventeen.  23 MS. MANDELL:  24 Q   And My Lord, for the record, I believe that that's  25 along the line which is marked number three; is that  26 correct?  27 A   That's correct.  28 Q   Okay.  And the creek that you are referring to is the  2 9 one which on the map is marked Gramophone Creek?  30 A   That's right.  31 Q   Okay.  And can you advise approximately at what time  32 or what year you first noticed that the moose were no  33 longer occupying the same territory which you had been  34 hunting them in earlier?  35 A   I always go hunt in the fall, in the fall times.  36 Q   All right.  And what year, or approximately at what  37 time did you notice that the moose were no longer in  38 this area, the area which was marked "good moose  39 hunting before logging"?  40 A   The early '60's or early '70's.  41 Q   All right.  Sometime in that ten year period?  42 A   In that ten year period, yes.  43 Q   All right.  And could you indicate whether or not you  44 today hunt moose throughout the whole of the area  45 which has been marked by you "still good moose  46 hunting"?  47 A   Yes. 2953  1 Q   And would you -- would you today be able to hunt moose  2 as far south as the Telkwa High Road?  3 A  When I hunt moose I don't go on the Telkwa High Road,  4 I don't go beyond Meed Creek, but I always go back in  5 there but you can come around like that to east.  6 Q   All right?  7 A   Up on the hill.  8 Q   All right, okay.  So you hunt on the --  9 A   So I don't go this way on the high road.  10 Q   You are pointing you don't go south on the high road,  11 instead you go --  12 A   There is no trespassing along here, I don't want to go  13 through the fields of the farmers so I go up above and  14 come down.  15 MS. MANDELL:  All right.  So for the record, My Lord, the  16 indication is that the area which is used is along  17 the -- it's in the interior part of the territory,  18 approximately parallel to the number which is marked  19 four.  2 0 THE COURT:  Yes.  21 MS. MANDELL:  Within the area which has been marked "still good  22 moose hunting".  23 MR. PLANT:   And in fact, that place where "still good moose  24 hunting" is printed is where the witness was moving  25 his finger, and when the witness was talking about the  26 field and the no trespassing, he was moving his finger  27 in the area of Twin Creek, now close to the Bulkley  28 and the creek below that.  2 9 MS. MANDELL:  30 Q   Can you indicate how far east you would go to hunt  31 moose today?  32 A   From Moricetown you are talking about?  33 Q   Well the area which you are now describing to us we've  34 got an arrow which is pointing east -- actually, it's  35 pointing south-east and I'm just wondering how far to  36 the south-east boundary do you actually go?  37 A   I don't go too far after I get up on the hill across  38 the creek, I don't go too far there.  Sometimes I get  39 one here at the creek.  40 Q   Would you go as far as the line which is marked number  41 six?  42 A   I don't go that far, no, not yet.  43 Q   Okay.  And how far east would you go to do your  44 hunting today?  45 A   You mean from the slash?  46 Q   Yes, the area which you now -- now are hunting in, how  47 far east would you go? 1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16 MS.  17  18  19 MR.  20  21 THE  22 MS.  23  24  25  26  27  2 8 THE  2 9 MS.  30  31  32  33  34 MR.  35 THE  3 6 MS.  37 THE  3 8 MS.  39  40  41  42  43  44  45  46  47  2954  A   One time we crossed the creek up here somewhere and we  walked along the ridge here.  Q   Okay?  A  And back.  Q   The witness is indicating the ridge which is  approximately along the words "still good" in this  area, My Lord, on the map.  I would like to get a clear idea as to where you  would go before the logging was in place in your  territory.  Could you advise how far -- how far north  towards K'aaz Kwe would you go to do your moose  hunting before the logging was there?  I don't go too far back on the trail here.  Okay.  Up here around this area here.  MANDELL:  All right.  For the record, My Lord, the witness  is indicating a place between line two -- line marked  two and three on the map.  In the area of the first approximately vertical  slashed red line, south-east of Duckwing Lake.  Yes.  MANDELL:  Q   And how far -- how far east would you travel or did  you travel to do your moose hunting before the  logging?  A   Sometimes I go way back in here, other times I don't  go back to Decen Tsooltlis, not that far.  TRANSLATOR:  Three hundred and ninety-three.  MANDELL:  For the record, My Lord, the witness indicated  that he would go as far east as approximately where  the slash shapes no longer -- to the east of the  boundary of the slash shapes, but not as far as the  placement on the map of the numbers two and three.  What do you mean by slashes?  You mean logged areas.  Logged areas.  Yes.  A  Q  A  PLANT:  COURT:  PLANT:  COURT:  MANDELL  COURT:  MANDELL  Q  And prior to the logging, could you advise how far --  how far south you would normally -- or would you go to  do your moose hunting?  A   Before slash?  Q   Before slash?  A   Before slash there was lots of moose in there, since  you walk back in there little ways you get moose, you  know I don't go even east or west.  Q   All right.  So for the record, My Lord, the witness 1  2  3 MR.  PLA1  4  5 MS.  MAN]  6  Q  7  8  9  A  10  Q  11  A  12  Q  13  A  14  Q  15  16  17  A  18  19  Q  20  A  21  Q  22  A  23  Q  24  A  25  Q  26  27  28  29  A  30  31  32  Q  33  A  34  35  Q  36  A  37  Q  38  A  39  Q  40  41  42  A  43  Q  44  A  45  Q  46  A  47  Q  2955  has indicated that the hunting would take place  primarily between the lines marked two and three.  :   Again in the approximate area of where that first  vertical red dotted line or dashed line is.  LL:  Have you hunted on Wah Tah K'eght's territory with  people from other Wet'suwet'en clans than the  Laksilyu?  Yes.  Who have you gone into the territory to hunt with?  For to hunt moose, I usually take Adam Brown out.  Um-hmm?  And Victor Jim.  All right.  And from the Laksilyu clan, can you advise  who you hunt moose with or who you have hunted moose  with in the past?  Cecil.  Andrew was still living when we used to go  hunt together.  Did you ever hunt with Sylvester Williams?  Yes, I did.  And is he from -- is he from your clan?  From my clan, yes.  And did you ever hunt with Alfred Mitchell?  Yes.  Okay.  Are there others -- other hunters either from  your clan or from another clan who have recently  sought your permission to hunt moose in the territory  but where you didn't go along?  When my dad passed away, George Holland came to me and  asked me to go with them, with my permission, to go  and get some moose for that feast.  Um-hmm?  George, and I recall just his last name, Bazil, one  Bazil boy.  Is that Roger Bazil?  Yes.  And are those two men in your house?  Yes.  And was -- was there moose caught from Wah Tah  K'eght's territory, in that territory that was  announced at the feast?  Yes.  And whose feast was that?  My dad.  That's his funeral feast?  Funeral feast.  Would it be in your mind correct under Wet'suwet'en 1  2  3  4  A  5  6  Q  7  8  9  A  10  Q  11  A  12  13  Q  14  15  16  A  17  Q  18  A  19  Q  20  A  21  22  Q  23  24  A  25  Q  26  27  28  29  A  30  Q  31  A  32  Q  33  A  34  Q  35  36  37  A  38  Q  39  40  41  42  43  44  45  46  A  47  Q  2956  law that George Holland and Roger Bazil would have had  to have asked for your permission to hunt moose on Wah  Tah K'eght's territory?  They came from the same house, they don't have to, but  George did come to me, asked me.  Is your evidence from yesterday the same as it applies  to moose, that when you catch a moose you give it to  your mother to prepare for the meat and for the hides?  Yes.  Do you know how the hides are used?  The hide my mother prepared and she can use it -- or  she makes gloves, jacket and moccasins.  And has your mother provided clothing, gloves or  jackets or moccasins to you and your family made from  moose from Wah Tah K'eght's territory?  Can I get to my interpreter?  Sure.  Yes.  What has she made for your family from the hides?  One time she give me house slipper out of moose, moose  skin.  And has she provided clothing for the children as  well?  Yes.  For small child like little moccasin.  Okay.  When -- when you were hunting for moose in the  area which you've indicated was good moose hunting  before logging, did you at that time also see deer  tracks and hunt for deer there at the same place?  Yes.  Do you hunt for deer on Wah Tah K'eght's territory?  Yes.  And what is the season where you go out for the deer?  In the fall.  And had you caught deer in the area where you had  indicated that moose had been caught before the  logging?  Yes.  Now you've indicated beside a red line which has been  marked on this map as five, that there is good deer  hunting.  Before I ask you about that area, though, I  would like you to tell us whether or not there is  still deer or deer tracks to be found in the area  which had been previously good moose hunting before  the logging.  Are there deer or deer tracks there  today?  At the logging area are you talking about?  Yes? 2957  No tracks, nothing there.  Few times I went to hunt, I  didn't see no tracks, no deer tracks or moose.  Okay.  Now you have, as I've drawn to your attention,  indicated that there is deer hunting by the line which  was marked as five.  Do you see that place on the map.  Yes.  :   And I ask my friend to rephrase her question to  take account of the fact that someone else drew the --  you know, made the marks on the map.  I don't want  there to be any ambiguity on the record about that.  LL:  The place which is marked on the map "deer hunting",  did you indicate to myself and Mr. Overstall that that  was the place where there was deer hunting on the  territory?  I showed to you where it was.  All right.  And is that the place marked in purple  "deer hunting" where you showed to us that -- that  there was deer hunting on the territory?  Yes.  Could you -- is that the only place today which you  know of where there is good deer hunting on the  territory?  Yes.  And who, to your knowledge, hunts deer there today?  Cecil was the only one knows where it is.  All right.  Do you hunt for deer as regularly as you  hunt for moose?  Yes.  Anything comes first, deer or moose, I get a  chance.  When you go hunting for deer or moose, do you get a  permit from the Provincial Government?  Not if I know, no.  34 THE COURT:  I'm sorry I didn't hear the answer.  35 MS. MANDELL:  He said, "Not if I know, no".  36 THE COURT:  That's what I thought he said.  37 MS. MANDELL:  38 Q   I think he meant -- is the answer yes or no?  39 A   No.  4 0       Q   No.  41 THE COURT:  Okay.  42 MS. MANDELL:  43 Q   Did you mean not as far as you can remember; is that  44 what you meant?  45 A   That's right.  46 Q   Do you know whether or not either moose or deer meat  47 from Wah Tah K'eght's territory is used at the feast?  1  A  2  3  Q  4  5  6  Q  7 MR.  PLANT  8  9  10  11 MS.  MANDE  12  Q  13  14  15  16  A  17  Q  18  19  20  A  21  Q  22  23  24  A  25  Q  26  A  27  Q  28  29  A  30  31  Q  32  33  A 2958  1 A   Yes.  2 THE COURT:  Haven't we had that about ten or eleven times, Ms.  3 Mandell?  4 MS. MANDELL:  Deer?  5 THE COURT:  Oh, deer, sorry.  I thought the same answer and same  6 consideration applied, but you are quite right, deer  7 specifically hasn't been mentioned.  8 A   Yes.  9 MS. MANDELL:  10 Q   Okay.  Now, I'm going to turn -- I'm going to turn  11 your attention now to some four pink circles which can  12 be found in the map along the Bulkley River where the  13 map indicates in pink letters and with a pink circle  14 that there are berries or the word berries are found  15 on the map.  Can you see where I'm talking about?  16 A   Yes.  17 Q   All right.  I'm going to ask you -- I see that the  18 word berries appears -- the word itself appears just  19 twice.  Do -- are there berries found on Wah Tah  20 K'eght's territory contained roughly within the area  21 of all four circles in pink?  Are there berries within  22 these four pink circles to be found on Wah Tah  23 K'eght's territory?  24 A   Yes.  25 Q   Okay.  If I could direct your attention first to the  26 area which is east of the Bulkley River to the circle  27 there, approximately -- or quite close to the boundary  28 line of K'aaz Kwe, can you advise first of all whether  29 or not you've ever been to that berry patch?  30 A   Yes.  Since I was small child.  31 Q   Okay.  And what kind of berries are there there?  32 A   Huckleberries.  33 Q   Okay.  And is that —  34 A   That ridge, it's called We't il xoos.  35 THE TRANSLATOR:  Three hundred and ninety-four.  36 MS. MANDELL:  37 Q   Is that the same berry patch which you identified that  38 you went to with your grandmother?  39 A  With my grandmother, yes.  40 Q   Okay.  I might ask whether it's common for the men to  41 gather berries at Wah Tah K'eght's territory or is  42 that an activity which the women generally take on?  43 A   The women does.  The men are guiding.  44 Q   The men are guiding?  45 A   From the dangerous animals.  46 Q   Okay.  And is it an activity, too, that the children  47 are — 2959  1 A   The children are, yes.  2 Q   Okay.  3 A   I remember I was small picking berries too.  4 Q   Okay.  There is a berry patch which you've indicated  5 to the west of the Bulkley River just behind  6 Moricetown.  What kind of berries are found there?  7 A   That's also huckleberries.  8 Q   Okay.  9 A  And the ridge called Bek'et degii Tsoyiin.  10 THE TRANSLATOR:  Two hundred and twenty-four.  11 MS. MANDELL:  12 Q   And have you been there to pick berries yourself?  13 A  When I was small, yes.  14 Q   Okay.  And there is a location further south on the  15 Bulkley River on the east side of the river just at  16 the foot of the red line which you've indicated with  17 the number two.  Could you advise what kind of berries  18 can be found in that location?  19 A   Blueberries.  It's down on the river bank.  20 Q   Okay.  And have you personally been there for  21 blueberries?  22 A   Yes.  23 Q   Yes.  And then across the Bulkley River on the west  24 side of your territory there is a fourth circle, and I  25 wonder if you could advise what kind of berries are  26 found there?  27 A   That also is down by the river bank, it's the  28 blueberries.  29 Q   Blueberries.  And have you been there yourself to pick  30 the blueberries?  31 A  When I was small, yes.  32 Q   Okay.  Do you know whether or not we've indicated on  33 this map all of the places in Wah Tah K'eght's  34 territory where there could be berry picking?  35 A   I'll talk to my interpreter.  36 THE INTERPRETER:  Can you ask the question again, please.  37 MS. MANDELL:  38 Q   Do you know whether or not for sure we've indicated on  39 this map all of the places on Wah Tah K'eght's  40 territory where there could be berry picking?  41 A  At the moment these ones that I marked on the map were  42 the only ones that I can remember at this time.  43 Q   Do you as chief Wah Tah K'eght, give your permission  44 for ladies from Moricetown to pick berries around --  45 around Moricetown and on your territory?  46 A  Around Moricetown mother goes out picking berries now.  47 Is that now we are talking about or years ago? 1  Q  2  A  3  4  5  Q  6  7  8  9  A  10  Q  11  12  A  13  Q  14  15  16  A  17  18  Q  19  A  20  Q  21  A  22  23  Q  24  25  26  27  A  28  29  30  31  32  33  34  Q  35  36  37  A  38  39  Q  40  41  42  43  44  45  A  46  Q  47  2960  Now, we are talking about now?  Now.  My mother goes out picking berries.  If there is  somebody else wants to go then they get permission  from my mother and they go with her.  Okay.  And are berries which are taken from your  territory by others, are those berries announced at  feasts if they -- if the berries are taken to the  feasts?  Yes.  And are berries from Wah Tah K'eght's territory taken  to feasts?  As far as I know, yes.  And had -- when berries from Wah Tah K'eght's  territory are announced at feasts, can you recall  whether you get paid back when that's announced there?  At one feast I remember my mother got paid back for  picking berries on our territory.  Is Mary Jim.  And what clan is Mary Jim from?  Mary Jim is Tsayu.  And can you recall how your mother was paid back?  She got house slippers, moccasin, moose-skin slippers,  and there was money involved too.  Okay.  Can you explain why it would be that your  mother would give permission for berry picking and  would be paid back for berries from Wah Tah K'eght's  territory?  I am -- I'll talk to my interpreter.  When mother  gives permission to people -- to other people picking  berries on Wah Tah K'eght's territory, when the other  people are of a different clan like Tsayu, and then  they -- they identify the -- the territory where the  berries come from by recognizing their appreciation in  the feast hall.  Okay.  And does your mother have your permission to  take care of the berries in your territory in this  way?  We always have meeting amongst own family like -- and  it's just like permission, yes.  Okay.  I would like now for you to turn to the map  again, and you'll notice that on the map we can see in  green areas which have been marked and the words  "beaver" are beside various of the rivers and lakes  which are marked.  Can you see the green marks which  are on that?  Yes.  And did you indicate to myself and Richard Overstall  to put the green marks on the map where they are? 1  A  2  Q  3  A  4  5  Q  6  7  8  A  9  Q  10  A  11  Q  12  13  A  14  Q  15  A  16  Q  17  A  18  Q  19  A  20  Q  21  22  A  23  Q  24  25  A  26  Q  27  A  28  29  Q  30  31  32  33  A  34  Q  35  A  36  Q  37  38  39  40  A  41  Q  42  A  43  Q  44  45  A  46  Q  47  2961  Yes.  And what did -- what do those marks mean?  These green marks means that's where I caught or  trapped beavers.  Okay. Since -- since you've taken the name Wah Tah  K'eght, have you trapped beaver on Wah Tah K'eght's  territory?  Since I've become Wah Tah K'eght?  Yes?  Yes.  And have you trapped in all of the locations which are  indicated on the map?  You mean all at once?  Not all at once, no.  No, no.  Have you been to each one of those places --  No.  -- to trap?  No.  I rotate them.  Okay.  And have you been to all of the areas which are  marked at one time or another?  Yes.  Do you trap beaver since you've been Wah Tah K'eght,  have you trapped beaver every year?  Yes.  If I -- if I'm not around my mother.  Right?  And she'll know where I've been trapped before and  then she can go take it to another place.  All right.  In terms of your trapping of beaver, you  personally, have you personally gone on the territory  every year to trap beaver since you've taken the name  Wah Tah K'eght?  Yes.  Okay.  What season do you trap beaver?  Late fall or early spring.  Okay.  You mentioned that your mother also traps  beaver.  Is there any other person from your house who  uses Wah Tah K'eght's territory to trap beaver or has  since you've been chief?  There is Cecil and probably Irene go with mother.  Okay.  And Irene is your sister?  That's right.  Now does your sister Helen go to trap beaver to your  knowledge?  Yes.  Okay.  Do you know whether when your sister Irene and  Helen and your mother go to trap beaver, do they take 1  2  3  A  4  Q  5  6  7  8  A  9  Q  10  11  A  12  13  14  15  16  Q  17  18  19  A  20  21  Q  22  23  24  25  A  26  27  Q  28  A  29  Q  30  31  32  A  33  34  35  36  Q  37  38  39  A  40  Q  41  42  43  A  44  45  46  Q  47  2962  the children with them as well, that's Helen's  children or Irene's children?  Yes, they do take the children, yes.  Okay.  You mentioned earlier that there was meetings  that your family had when you were talking about  berries.  Do -- does your house have meetings to talk  about the beaver hunting in your territory?  Yes.  And what kind of information is discussed at those  meetings regarding the beaver?  Like I would tell my mother if I go one place where's  beaver, I would get -- if I get two or three big ones  then I get the smaller one, then I quit there, because  all small one behind it.  I leave it for two or three  years.  I go somewhere else to get it.  And do other members of your house report to these  meetings about where they catch -- trap beaver and the  amounts that they trap?  Yes.  We always get together and we know where it  comes from.  You were talking just a minute ago about not staying  in an area if you're trapping small beaver.  Can you  explain to the court why you move your traps when  small beaver are caught in them?  When the small beavers be increased over couple of  years or get bigger they'll have young ones.  What size of beaver are you trying to catch?  Would be large ones.  And when you set the traps, is there anything that you  do to try and ensure that you'll catch the large  beaver?  First two, three you catch is all big ones, but you  might get another big one but there will be little one  catch, like so long, you might as well take it off  because you might get the small one again.  You indicated a beaver about three feet is when you  would think that that beaver was too small to continue  to catch there?  Yes.  To about two or three feet.  Yeah, two feet.  Is there any -- is there any way that you can tell how  many beaver are in a beaver house before you set your  traps?  You can tell by the dam or the house, beaver house.  If it's just say about four feet off the water and  there is only two in there, they'll have young ones.  Would you set your trap at the entrance of a beaver  house that's four feet high? K'eght's  2963  1 A   I set trap on the dam.  2 Q   Um-hmm.  Do you -- have you been taught how many  3 beaver to take from a house?  4 A   Yes.  5 Q   Who taught you?  6 A   From quite a few people.  Specially my Uncle Peter  7 Bazil, but I learned it from Alfred Mitchell, he knows  8 the most, he knows a lot about beavers.  9 Q   And what's the general law that you follow in terms of  10 how many beaver you'll take from a dam?  11 A   I'll talk to —  12 THE INTERPRETER:  Would you ask the question again?  13 MS. MANDELL:  14 Q   What's the practice that you follow in terms of how  15 many beaver you'll take from a dam?  16 A  When we trap for beaver we generally try to take big  17 ones and if -- we try leave the little ones so they  18 will grow up and then we -- when they grow up they  19 will produce other smaller ones for future use.  So  20 when we -- after we take the bigger beaver, we leave  21 the younger ones behind for future -- for future use.  22 Q   If there is a beaver house which may have ten beaver  23 in it, how many beaver would you think would be proper  24 to trap from that house?  25 A   He get -- if there is a beaver in one house with ten,  26 the most you catch four and then the rest is small.  27 Q   Okay.  Has there been a Laksilyu feast recently which  28 you can recall where beaver meat from Wah Tah  29 territory was announced at that feast?  30 A   The last one that has been announced was at my Dad's  31 funeral feast.  32 Q   All right.  Has there been a Laksilyu feast recently?  33 A   Before my Dad's feast was Ester Holland.  34 Q   And was that --  35 A   His chief name is Xax.  36 Q   And that's a headstone feast?  37 A   Headstone feast.  38 Q   And approximately how long ago was that feast?  39 A  About a year, year and a half, not exact.  40 Q   Since you've taken the name Wah Tah K'eght, can you  41 recall whether there's been any Laksilyu feast hosted  42 by your clan where beaver meat from Wah Tah K'eght's  43 territory has not been announced?  44 A   To all the Laksilyus feast, if we got beaver meat  45 distributed it's always mentioned where it came from.  4 6 Q All right. And did you have beaver meat from Wah Tah  47 K'eght's territory to provide to each of those 1  2  A  3  Q  4  5  A  6  Q  7  A  8  Q  9  A  10  Q  11  12  13  A  14  15  16  Q  17  18  A  19  20  21  Q  22  23  A  24  25  26  Q  27  28  29  30  A  31  32  33  Q  34  35  36  A  37  Q  38  39  40  41  42  43  A  44  Q  45  A  46  Q  47  2964  Laksilyu feasts?  Yes.  My mother will have it all the time.  All right.  Approximately how many beaver would you  estimate that you personally would trap each year?  Sometimes we'll get about ten, no more.  No more than ten?  No more than ten.  Okay.  Some years, not every year.  And when -- what would be the -- to your best  recollection, the lowest number of beaver which you  would -- which you had trapped in a year?  To my knowledge, some years be nothing but there is  very few years I got three, four.  But Cecil got some  too, it's six, seven.  Okay.  When you trapped the beaver, what then is done  with the beaver pelt?  My mother do all the skinning and prepare with the  meat drying.  She is the one doing the stretching,  dried the skin and I'll sell to fur buyer.  And when you receive the money from the fur buyer, how  do you distribute the money?  I give mother percentage for what she do, I pay her  for what she -- if she is skinning beaver for me, do  stretching and drying, I'll pay her for it.  Okay.  When beaver meat is distributed at the feast,  how exactly is it distributed, how is it packaged to  be distributed?  I don't know if that's the right  word.  The way my mother prepared it for the feast, she will  have it maybe one -- one little square slice in little  package and distribute it throughout.  And do you know whether or not the big chiefs at the  feast receive the same amount or the same parts of the  beaver as do the other guests?  The chief will get a little more, yes.  I would like to direct your attention to the map, and  I wanted to ask you about the places which we've  marked in green.  The first one is behind -- on the  east side of the Bulkley -- east of Moricetown there  is two small lakes which have been circled in green.  You've indicated that you've trapped beaver there?  Yes.  Do you trap on both of those lakes?  Yes.  And is the beaver trapping considered by you to be  good beaver there? 2965  1 A   Yes.  2 Q   Okay.  3 THE COURT:  That's Duckwing Lake, is it?  4 MS. MANDELL:  That's right.  5 THE COURT:  The larger one?  6 MS. MANDELL:  And the lake immediately to the west of it.  7 THE COURT:  Yes.  8 MS. MANDELL:  9 Q   And there is -- there is also beaver which you have  10 indicated throughout the Bulkley River; is that  11 correct?  12 A   That's right.  13 Q   And is the beaver plentiful in that river?  14 A   Yes.  15 Q   And I notice that to the east of the Bulkley there is  16 a creek.  Is that a creek which begins at Meed, the  17 place marked Meed Creek and extends north up the  18 parallel to the Bulkley River, a small line marked in  19 green.  Is that a creek that you've just indicated?  20 A   Yes.  21 Q   And there is beaver in that creek as well?  22 A   Yes.  23 Q   And would you consider that the beaver were plentiful  24 in that creek?  25 A   There is about four dams, beaver dam.  Right in the  26 middle of it there is one great big dam and it's look  27 like a lake, so you -- so my -- there is lots, lots of  28 beaver in there.  29 Q   Okay.  And in the east boundary of your territory  30 towards the -- in really the beginning in the lake  31 which is inside the goat hunting area and extending  32 down that river, there is also a green line indicated.  33 Is there beaver in that part of the territory which is  34 plentiful in your estimation?  35 A   In Tedeltl'ets, yes.  36 MS. MANDELL:  That's the name of the lake, Two Bridge Lake.  37 THE COURT:  Yes, that's 372.  38 MS. MANDELL:  39 Q   When you trap for beaver up in that end of your  40 territory, how do you access the beaver, where do you  41 come in from?  42 A   Right now last -- well not now.  Few years ago when  43 we -- we were going in there with Victor and Chester,  44 we followed the C'ede'i Kwe.  45 THE COURT:  Is that Driftwood Creek?  4 6 MS. MANDELL:  47       Q   Yes. 1  2  3  4  5  6  7  8  9  10  11  12  13 THE  14 MS.  15  16  17  18  19  20  21 MS.  22 THE  2 3 MS.  24 THE  2 5 MS.  2 6 THE  27 THE  28  29  30  31 THE  32  33  34 MR.  35  36  37 THE  38  39  4 0 MR.  41 THE  42  43  44  4 5 MR.  46  47  2966  A  And we go back in here somewhere and then there is a  trail or so -- so we follow it and we went into --  there is a two mountain comes in like that, kind of in  the valley.  We got into a wrong valley, that's where  we got goat, so we just turned back and didn't get to  the lake.  Q   Okay.  That's the last time that you went?  A   (WITNESS NODS HEAD IN RESPONSE)  Q   Would you walk or hike then from the -- from Driftwood  Creek north to the place where there is beaver to the  lake?  A   Yes.  We go north, that's right, we walked in.  COURT:  From the park.  You can drive to the park at least.  MANDELL:  Q   Do you drive to the park?  A   To past, we passed the park.  Q   Passed the park by car?  A   Yes.  Q   Yes.  And then you hike in from there?  A   Hike from there.  MANDELL:  All right.  COURT:  Is this a convenient time to adjourn,  MANDELL:  This is perfect.  COURT:  Should this be marked?  MANDELL:  Sure.  REGISTRAR:  Exhibit 164.  COURT:  All right.  Ms. Mandell?  (EXHIBIT 164  Map)  COURT  RUSH:  COURT  RUSH:  COURT  PLANT  :  All right.  Mr. Rush, I think I am waiting to hear  from you about some correspondence regarding the  official reporters.  Yes.  I was able to get one piece of correspondence,  I know there is another.  Mr. Grant said he would fax  it down.  :  I would like to deal with that matter but I  shouldn't do so until I have the material you  mentioned.  Yes.  :  If that could be sent to me at some time, that would  be convenient.  All right, I don't have in mind any other  housekeeping items at this time.  :  Well, My Lord, since you asked, there is one  outstanding matter that I don't think has been  mentioned before.  Some time ago I made a request that 2967  1 Heather Harris answer some questions pursuant to Rule  2 28, and my friends and I are corresponding about  3 problems that are being experienced in my taking  4 deadlines for answering those questions.  And the way  5 things stand at the moment, there is a chance that we  6 may -- I may have to bring on an application in the  7 week after we commence.  8 THE COURT:  Yes.  9 MR. PLANT:  But that situation seems to change day by day and if  10 the answers come in next week then that will be the  11 end of that, presumably.  12 THE COURT:  All right.  Well you can bring that up as may be  13 advised and as may be convenient.  Mr. Macaulay?  14 MR. MACAULAY:  My Lord, when there was a discussion that's what  15 it was about, exhibit -- what's now Exhibit 164, I may  16 have misstated the effect of the rule regarding maps  17 and plans.  That rule provides that except -- except  18 with the leave of the court and all, that these would  19 be disclosed seven days before the trial commences.  2 0 THE COURT:  Yes.  21 MR. MACAULAY:  Of course that rule is difficult to apply in a  22 case like this.  2 3 THE COURT:  Yes.  24 MR. MACAULAY:  Impossible to provide in a case like this,  25 perhaps.  I don't object to these maps per se, in fact  26 it's -- it's much easier to follow the evidence.  27 THE COURT:  Indeed.  28 MR. MACAULAY:  As was the case with the last witness at least.  29 It's the timely delivery of copies that I'm  30 addressing, and in this case Your Lordship will have  31 to make rulings on practical matters like that as we  32 go along, and I suggest that that be addressed during  33 the week of February first that counsel, if they have  34 submissions to make, do make them.  I'm going to  35 propose that they -- a 14-day rule which was found  36 convenient for other cases be applied to these.  I'm  37 pretty sure -- I can't say exactly when this map was  38 drawn up, but I'm pretty sure it was a couple of weeks  39 ago.  40 THE COURT:  Your friends don't agree with you, Mr. Macaulay.  41 Well I can't stress anymore than you have, Mr.  42 Macaulay, the convenience of early delivery, and I'm  43 sure your friends have received that message from the  44 discussion we have had this morning.  I think they are  45 alive to the fact that you are annoyed with them and  46 I'm sure they don't want you to be annoyed with them.  47 MR. MACAULAY:  It's not a question of being annoyed with them. I 'm  2968  1 I don't believe my friends care much whether  2 annoyed at them or not.  3 THE COURT:  I'm sure they don't.  4 MR. MACAULAY:  But I'm going to propose after the adjournment  5 that the 14-day rule, since it's appropriate for the  6 territorial affidavits and genealogies, be applied to  7 this one too.  There is an interesting question  8 arising whether Exhibit 5 for Identification is still  9 an exhibit for identification.  The basis on which  10 exhibits are marked for identification is that the  11 party delivering them intends at some later stage of  12 the trial to prove them.  13 THE COURT:  Who tendered Exhibit 5?  14 MR. MACAULAY:  The plaintiffs.  That doesn't seem to be their —  15 the intention now.  I wonder whether or not Exhibit 5  16 should remain on the roster.  17 MR. RUSH:  Maybe we should take it back, maybe my friend would  18 prefer that.  19 THE COURT:  Well I think Mr. Macaulay is doing no more than  20 giving notice he proposes to seek a less flexible rule  21 when we resume than perhaps has been followed in the  22 past, and I'll be glad to hear you at that time, Mr.  23 Macaulay.  24 All right.  Do counsel plan to take their  25 documents away?  There is storage conveniently  26 available?  I'm not sure, but it may well be that this  27 courtroom will have to be used during the adjournment.  28 The court's exhibits, if we need to, will be taken  29 into one of the jury retirement areas, but counsel are  30 planning to take all their material away with them,  31 are they?  32 MR. RUSH:  Yes.  33 MR. PLANT:  Well I'm not sure that we were actively planning it  34 but I'm happy to meet the convenience of the court.  35 THE COURT:  It might be the safer course if you do.  3 6 MR. MACAULAY:  Perhaps my friend Mr. Rush could let us know what  37 the plaintiff's position is regarding this small  38 matter.  39 THE COURT:  I was planning to take that up with them a week from  4 0 Monday.  41 MR. RUSH:  My Lord, I feel I am on notice as to how important  42 this map is to Mr. Macaulay.  4 3 THE COURT:  Yes.  44 MR. RUSH:  And I'll certainly try to see if our map maker can  45 advise us about that.  46 THE COURT:  All right, we will adjourn then.  I wish you a  47 pleasant week off, I am sure you'll find something to 2969  1 keep yourselves occupied with.  2  3 (PROCEEDINGS ADJOURNED AT 12:35 p.m.)  4  5 I hereby certify the foregoing to be  6 a true and accurate transcript of the  7 proceedings herein transcribed to the  8 best of my skill and ability.  9  10  11  12  13  14 Toni Kerekes,  15 O.R., R.P.R.  16 United Reporting Service Ltd.  17  18


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