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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1988-01-06] British Columbia. Supreme Court Jan 6, 1988

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 2235  1 Vancouver, B.C.  2 January 6, 1988  3  4 (PROCEEDINGS RECONVENED AT 10:30 a.m.)  5  6 THE REGISTRAR:  Order in court.  Supreme Court of British  7 Columbia, Wednesday the 6th day of January, 1988.  8 Calling Delgamuukw against Her Majesty the Queen, My  9 Lord.  10 You are still under oath, Mr. Joseph.  11 THE COURT:  Mr. Goldie.  12 MR. GOLDIE:  13 Q   Mr. Joseph, yesterday at the conclusion of the day we  14 had been discussing the ecological reserve which is  15 presently established in the Gisdaywa territory, and  16 you had been asked by the Chief Justice to indicate  17 distances, and are you content with the answers that  18 you gave His Lordship?  19 A  Well, the roads that was in before to Owen Lake was --  20 from Houston was around 28 to 30 miles.  21 Q   That's from Houston to the head of Owen Lake?  22 A   Yes.  23 Q   Yes, thank you.  24 A   But since that time, the road has been straightened  25 out.  Before that they followed -- they followed the  26 creeks up and there was lots of switchbacks, and since  27 that time it's been -- the distance has been shortened  28 quite a bit.  29 Q   And it's that distance which you think is now about 23  3 0 mi1e s ?  31 A   Twenty -- yeah, 23, 24 miles.  32 Q   I think His Lordship asked what the distance -- your  33 estimate of the distance between Houston and where  34 Houston Tommy Creek comes into the Morice?  35 A   Yes.  36 Q   And I think you said about eight miles?  37 A   Yes.  38 Q   Is that your present view?  39 A  Well, I have -- since I have travelled it, it's -- the  40 first time I travelled it it's a lot of changes have  41 been made in the road, and also there has been  42 kilometres and it's quite confusing to me now.  43 Q   All right.  The other thing that was left with you  44 yesterday was whether you could prepare for us a list  45 of the members of your house.  Have you been able to  46 do that or do you wish to leave that to another time?  47 A   I -- from what I had only -- there is only one 2236  1 addition and one -- one other name that's been left  2 out, and --  3 Q   All right.  I'm now referring to Exhibit 78, My Lord,  4 and the answers to question 24.  Do you have that in  5 front of you, Mr. Joseph?  6 A   Yes.  7 Q   And you tell me -- you tell us that there is one to be  8 added and one to be removed?  9 A   Yes.  10 Q   Could you give us those, please?  11 A   Ida Austin is gone back to her own house.  12 Q   Yes?  13 A   But we've added Abraham Kenni.  14 Q   He lives where?  15 A  At New Hazelton.  And he is eleven, born December 13,  16 1976.  17 THE COURT:  Excuse me, Mr. Goldie.  Is this the court exhibit or  18 is this mine?  19 THE REGISTRAR:  This is the court exhibit.  20 THE COURT:  All right, so I can change this one.  Thank you.  21 Just a moment, please.  22 MR. GOLDIE:  23 Q   So you are confirming what you thought was the case  24 yesterday?  25 A   Yes.  26 Q   That the members of your house are as listed in  27 Exhibit 78, less the name of Ida Austin and with the  28 addition of Abraham Kenni?  29 A   Yes.  There is changes to the -- different changes to  30 this all the time.  Someone died or someone is born.  31 Q   Yes.  32 THE COURT:  And how old did you say Abraham Kenni was, or his  33 birth date?  34 A   He is eleven, born December 13th, 1976.  35 MR. GOLDIE:  36 Q   One other question, Mr. Joseph, about the list of  37 house members, some live in Hagwilget, yourself and  38 your brother, and I take it that's the reserve at  39 Hagwilget; is that correct?  40 A   Yes.  41 Q   And others live at New Hazelton, and that's the -- in  42 the village of New Hazelton?  43 A   Yes.  44 Q   All right, thank you.  Now unless I misunderstand or  45 have misunderstood your evidence, you do not live in  46 the territory of Gisdaywa?  47 A   I don't live there but I often go there. 1  Q  2  3  A  4  Q  5  6  A  7  Q  8  9  A  10  Q  11  12  A  13  Q  14  15  16  A  17  18  Q  19  A  20  Q  21  A  22  Q  23  A  24  Q  25  26  A  27  28  29  Q  30  31  32  A  33  Q  34  A  35  Q  36  37  A  38  39  40  Q  41  42  43  44  45  46  47  2237  Yes.  And you've given evidence with respect to the  times that you've gone there --  Yes.  -- up to last year?  Nor do any members of your house  live in the territory; is that correct?  No.  They live mostly on reserves and towns.  The -- and some of them indeed live in Smithers and  Prince Rupert and -- I shouldn't guess.  Yes.  One lives in Victoria, one in Prince Rupert, three in  Terrace and so on?  Yes.  Yes.  And at the present time, you do not -- and I'm  speaking of you personally in this question -- you do  not trap on the territory?  There is always some one member of Kaiyexweniits on  the territory.  You mean for trapping purposes?  Yes.  During the period in which trapping takes place?  Yes.  The winter?  Yes.  And you do not fish on the territory in the sense of  obtaining food for your family?  We get our fish from whoever is there, like sometimes  Leonard or Andy brings us the fish that we -- that we  can't get on the Bulkley, Wedzen Kwe.  And you personally do not, to use the words of the  Statement of Claim, harvest the resources in the  territory?  Pardon?  You don't harvest the resources of the territory?  I -- whenever I go there I do.  And would you explain to His Lordship what you mean by  that?  Well whenever we are on territory we always do fishing  in the creeks, and if the fish was running in Wedzen  Kwe we fish there.  Yes.  I want now to speak about the evidence you gave  about the use of some of the other resources of your  territory, and in your evidence in chief on June the  19th, you were asked if there were berries on your  territory and you said there were huckleberries and  blueberries, and you were asked this question at line  38 of page 1556, question: 1  2  3  4  5  6  7  8  9  10  11  12  A  13  Q  14  A  15  Q  16  A  17  Q  18  19  A  20  Q  21  22  A  23  Q  24  A  25  26  Q  27  A  28  Q  29  A  30  Q  31  32  A  33  Q  34  A  35  Q  36  37  A  38  Q  39  40  41  42  A  43  Q  44  45  46  47  2238  Q  "Are these resources from your territory,  are they used today by you and your  family and other members of your House?  A  Yes.  Q  Okay.  And in respect of the berries, are  these -- are these picked and have these  been picked from your territory?  A  Yes."  Now Mr. Joseph, can you tell His Lordship when people  pick huckleberries?  In about mid-August and on.  Yeah.  And blueberries are what, a little later?  No.  They are about the same time.  About the same time?  Yeah.  The -- your people when you were growing up, did not  use the territory in the summer time, did they?  They did for berries.  Did they go down from the village of Hagwilget to  the -- to Gisdaywa's territory to pick berries?  Yes.  That's a long way to pick berries, is it not?  It's -- they have to -- well some of them lived there  year round at the time, some of my grandparents.  And your uncle?  Yes.  Yeah.  Are those the people you are referring to?  Yes.  Because in the summer time, the people -- most of your  people were back in the village, were they not?  Yes.  In particular, you and your family?  Yes.  And berries that, for instance, your grandmother  Cecilia wanted, were picked around the village?  Yes.  I think you told His Lordship where she picked was  subdivided and towns are -- or buildings on it and  some commercial building on that area, so that was  where?  Around New Hazelton.  New Hazelton, yes.  And in fact, that's where people  get their berries, if not the precise place where your  grandmother picked berries, but it's around the  village that people get their berries today who live  there; isn't that right? 2239  1 A  Well, today there is so much restriction by the  2 forestry for burning areas for berry picking, distance  3 don't -- doesn't come into the picture, because  4 some -- most of the Wet'suwet'en and the Gitksan  5 travel 200 miles or more to go and pick huckleberries.  6 Q   Well berries grow on any burnt over or cut over area;  7 isn't that right?  8 A   Yes.  But some -- I've visited quite a few burnt areas  9 right after the burn, and there has been a burn.  10 Q   Yeah?  11 A  And I never hardly found any huckleberries.  12 Q   I see.  Wasn't that the traditional way of clearing  13 ground for berries, was to burn it over?  14 A   Yes.  15 Q   Yes.  And regardless of who does the burning or who  16 does the clearing, berries will grow there?  17 A  At that time, yes.  18 Q   Yes.  Well today, as you've just said, people will  19 drive wherever there has been a burn or a clearing; is  20 that right?  21 A   Yes.  22 Q   So you would drive to your territory if there has been  23 a burn there or clearing?  24 A   Yes.  25 Q   But you yourself do not cause the burns or -- the  26 members of the house no longer --  27 A   No.  28 Q   -- burn?  And there were common berry grounds or there  29 are common berry grounds around Moricetown?  30 A   Yes.  31 THE COURT:  Moricetown?  32 MR. GOLDIE:  33 Q   Moricetown, yes.  And those are used today?  34 A   I don't think so.  35 Q   When -- to your knowledge, when were these common  36 berry grounds ceased to be used for that purpose?  37 A   They -- like I said, it requires a burn, and a burnt  38 out area, I think, would produce for about ten years  39 or even less.  After that it grows in and you can't  40 pick in the area anymore.  41 Q   Yeah.  It's just like logging, is it not, the effect  42 of the burn?  43 A   Yes.  44 Q   Within ten years of an area being logged over, the  45 second growth starts coming in?  46 A   Yes.  47 Q   Soap berries and Saskatoons in the same category as 1  2  A  3  Q  4  A  5  Q  6  A  7  Q  8  A  9  Q  10  11  A  12  Q  13  14  A  15  Q  16  17  18  19  20  21  A  22  Q  23  A  24  Q  25  A  26  Q  27  28  29  30  31  A  32  Q  33  34  35  36  37 MR.  RUSH:  38  39  40  41  42  43  44 THE  COURT  45  4 6 MR.  GOLDI  47  Q  2240  the huckleberries and blueberry?  No.  You can harvest soap berries in the wintertime?  No, you can't harvest in the wintertime.  No.  Those two are harvested in the summer then?  Yes.  And Saskatoons?  Yes.  And at the present time anybody can pick berries on  Crown land where they find them?  Yes.  And huckleberries, for instance, grow along road  sides, abandoned logging roads, anything like that?  I haven't seen any along those areas.  I see, all right.  Now at page 1557 of the same transcript, you  mention that there was huckleberries and blueberries  were used -- "Mostly traded with other nations."  Are  you speaking of the present day or were you speaking  there of what you understood was the traditional use?  They are still traded today.  With the Nishga?  Nishgas, yes.  And that's berries that may be picked anywhere?  Yeah.  Now Mr. Joseph, I think you may have already answered  this question, but I just want to be sure about it.  The Statement of Claim alleges that you -- the  plaintiffs govern themselves according to their laws.  You are there referring to the feast, are you?  Yes.  The people who trap today do so in compliance with the  Game Acts of British Columbia, that is to say, if they  have a registered trapline they trap within those  limits and they trap according to the regulations; is  that right.  Well I think this is a question which so long as it's  qualified by the understanding that Mr. Joseph  couldn't possibly speak for everybody that traps, I  think it should be understood that he has to speak  from his limits of his knowledge, and sure, that may  contain some hearsay, I don't contest that.  But this  is surely a very broadly worded question.  :  Yes, it is broadly worded.  Following clarification  I think the witness can answer.  So far as your knowledge goes, Mr. Joseph, today 1  2  3  4  A  5  6  Q  7  8  9  10  A  11  Q  12  13  A  14  Q  15  16  17  18  A  19  Q  20  21  22  A  23  Q  24  25  26  27  28  29  30  31  32  33  34  35  A  36  Q  37  38  39  A  40  41  42  Q  43  44  A  45  46  47  2241  people trap in accordance with the Game Acts of  British Columbia and the regulations with respect to  where and when and the species taken?  It's not where or when.  Whenever they need it they  take any of those animals.  Yes.  But today, whoever traps animals, when he  disposes of the furs, he has to show that he has --  there is a return made of the animals taken on the  trapline, isn't there?  Yes.  And Andrew George and those who were trapping on your  territory do that, to your knowledge, do they?  What was that?  When -- I think you've told me that Andrew George is  trapping on one section of your territory and Joseph  is -- was trapping -- and company was trapping on  another part of your territory?  Yes.  And is it your knowledge that the people who actually  do the trapping, file with the government a return of  the animals that they have trapped?  Yes.  I want to refer to a question that was put to you by  Mr. Rush in the transcript volume 22 for June the  18th, at page 1511, line 46.  Mr. Rush said to you,  and I quote:  Q  "Now, Mr. Joseph, I understand that you  were trained or groomed to be a successor  to a chief's name; is that so?  A  Yes."  Were you trained or groomed to succeed to any  particular chief's name?  No.  And you later stated that you got your training first  from your parents and then the grandparents.  Which  grandparents are these?  Both my grandparents on my mother's side and one my  grandfather on my father's side was Gisdaywa at the  time.  Thank you.  So it wasn't to be taken that they were  grooming you to take the name of Gisdaywa?  When you are born in a house, you are always told that  one day you may be the one that will be the head of  this house.  So you are told what -- you are given  advice all the time. 1  Q  2  A  3  4  Q  5  A  6  Q  7  A  8  Q  9  A  10  Q  11  A  12  Q  13  14  15  A  16  Q  17  18  19  20  21  22  23  A  24  Q  25  26  A  27  Q  28  29  A  30  Q  31  32  A  33  Q  34  35  A  36  Q  37  38  A  39  Q  40  A  41  Q  42  43  44  A  45  Q  46  47  A  2242  Yes?  And that goes for -- comes from your father's side as  well, your aunts and your uncles.  When you say "you", you are not speaking --  One.  -- of yourself alone?  Yes, yes.  One, I should say.  Quite a large number --  Yes.  -- would receive the same training?  Yes.  Because it would be entirely possible that you would  never take the name of Gisdaywa when you were growing  up?  Yes.  Now I've touched on this a minute ago, but I want to  be clear about it.  The traditional use of the  territory, and I'm now asking you to relate your  earlier evidence, that is to say the time that you  lived on the territory, was to -- was in the winter  time, and in the summer everybody went back to the  village to participate in the salmon runs?  Yes.  As you put it in your evidence, "In the summer we go  home," is that correct?  Yes.  Just how far in your estimate is the territory of  Gisdaywa from Hagwilget?  From the territory Gisdaywa to Hagwilget?  Yes.  If you are not familiar with the mileage, can  you give --  Oh, it would be 90 miles.  And before motor cars were common, you used the train,  did you?  Yes.  And that would -- the train would take you from New  Hazelton to Houston?  Yes.  And then in from -- in from Houston by trail or road?  By trail.  Now before the train, have you any knowledge through  the traditions of your house or family of how people  got there, to the territory from Hagwilget?  They walked.  But horses were unknown to your people before the  white man came?  I've never heard of legends that relate to horses. 1  Q  2  3  A  4  Q  5  6  A  7  Q  8  9  10  A  11  12  Q  13  14  15  16  17  18  A  19  Q  20  21  A  2243  So far as you know, the horses and cattle were  introduced into where you live by the white man?  Yes.  And the same goes, of course, for wagons that horses  pull, that would be so, wouldn't it?  Yes.  Was -- have you any knowledge of your people using the  wheel, either in the form of a wheelbarrow or small  carts that were pulled by hand, before the white man?  I don't think there were even wheels around here when  the first white man came.  After he came.  Well, you are probably quite right.  Is my  understanding correct -- and I'm asking you as a  person who has done considerable research into land  claims -- is my understanding right that the first  white man to visit Hagwilget was a Major Downie in  1859?  Have you heard of that name?  Yes.  And is that your understanding that it's about 1859  that he arrived there?  Yes.  22 THE COURT:  Excuse me, D-O-W-N-E-Y?  23 MR. GOLDIE:  24 Q   I-E, My Lord.  D-O-W-N-I-E.  25 Then some years later there was a telegraph line  26 built through Kispiox, was there not?  27 A   Yes.  28 Q   In the Bulkley Valley?  29 A   Yes.  30 MR. RUSH:  I take it my friend is content with leading evidence  31 of what is of a historical or documentary nature, it  32 seems to be of the non-Indian world.  I don't have any  33 contest with this evidence, except to say that I think  34 like Smithers, this evidence could be considered  35 notorious, but I don't think we should lose site of  36 the fact that Mr. Joseph is not a historian of events  37 that occurred when the white people arrived.  At the  38 same time, he has knowledge which is every day  39 knowledge, if we can put it that way, that many of us  40 would have about histories of events that happened.  41 And if we understand that this evidence is being  42 elicited for that purpose, I don't really take  43 objection to it, but objection has been taken about  44 events which are in the documentary record, and of  45 course there is an element of hearsay to that.  So I  4 6 don't want the moment to go by without noting that in  47 fact there is a hearsay aspect to this evidence. 1  THE  COURT  2  3  4  5  MR.  RUSH:  6  THE  COURT  7  MR.  RUSH:  8  THE  COURT  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  MR.  GOLDI  28  29  30  31  32  33  34  THE  COURT  35  MR.  GOLDI  36  37  THE  COURT  38  MR.  GOLDI  39  Q  40  41  42  43  44  45  46  A  47  2244  :  Well if I were starting this trial again today I  think I would give -- or I might give specific effect  to your remarks.  I won't call them an objection, Mr.  Rush.  It's not an objection, My Lord.  :  Yes.  I don't put it in that category.  :  Yes.  But Mr. Goldie started this by reference to  legend of his people, and I'm putting that  qualification on most of it.  But it seems to me that  if I was to stop this evidence -- and you are not  asking me to -- I would have to rule out much of what  the witness has said in chief as well.  And for that  reason, I think I am committed to this course and I  should allow it to proceed.  I have serious misgivings about the admissibility  of much of what the witness has said both in chief and  cross-examination.  But the course of trial seems to  me to indicate that we are going to hear this kind of  evidence, and while I think there is much truth in  what you've said, Mr. Rush, inasmuch as you are not  making it as an objection, I am going to allow the  witness to proceed.  But I'm taking it as being -- as  the answers as being to the best of the witness'  knowledge and understanding and belief, and at some  stage this will all have to be sorted out.  E:  Yes.  I -- what I'm seeking to do at this  particular point, is to test some evidence which the  witness gave on the first arrival of the white man.  The second is to determine whether there are any  reputations or legends which would indicate that  horses and cattle were any part of the economy of --  and society of the plaintiff groups.  :  All right.  E:  And the -- Mr. Joseph very properly has told me  that he doesn't know of any legend to that effect.  :  Yes.  E:  Appreciating your statement, Mr. Joseph, that there  are no legends or represent -- or traditional stories  that involve horses or cattle, have you any idea of  when horses were first brought into the -- I'll call  it the Bulkley Valley?  And if you don't, please feel  free to say so, there is no element of criticism  implied in my question.  I don't know the exact date, but my grandparents,  Cecilia George, said that her father used to own 2245  1 horses and cattle.  Exactly what time it was, I don't  2 know.  3 Q   No.  And your Uncle Thomas, to your knowledge, kept  4 horses and cattle when he lived on the Gisdaywa  5 territory, did he not?  6 A   Yes.  7 Q   Now you've told us that it's about 90 miles from  8 Hagwilget to the territory, and that so far as you are  9 aware, before horses were available, the only other  10 way that people could get there would be on foot.  11 There are Indian people who lived closer to the  12 territory than that, were there not?  And I'm  13 referring now to the Indian people who lived at  14 Francois Lake?  15 A   Yes.  16 Q   And they are not Wet'suwet'en?  17 A   They are Wet'suwet'en.  18 Q   I see.  Are they part of the -- are those people  19 plaintiffs in this action?  20 A   Yes.  21 Q   Can you tell me what house they belong to?  22 A   Goohlaht.  23 Q   Right, thank you.  That's Lucy Namox?  24 A   Yes.  25 MR. GOLDIE:  Has Your Lordship got that?  2 6 THE COURT:  No.  27 MR. GOLDIE:  G-O-O-L-A-H-T, I believe.  28 THE TRANSLATOR:  Number 12 on the plaintiff's list.  2 9 THE COURT:  Thank you.  And the name was Lucy?  30 MR. GOLDIE:  Namox.  31 THE COURT:  N-A-M-O-X.  32 MR. GOLDIE:  33 Q   Yes.  34 Are there any native peoples who have lived in  35 that area who are a member of the Carrier Sekani  36 group?  37 A  Who have lived -- yes, there have been people lived in  38 the area that were of the Carrier Sekani, they were  39 there through marriage.  40 Q   Through marriage.  Did they follow the traditional  41 pattern of concentrating in the villages during the  42 summer and scattering over the hinterland in other  43 seasons?  44 A   Yes.  45 Q   That was something that all of the Babine Carrier  46 people did, was it not?  47 A   Yes. 1  Q  2  3  4  5  6  7  8  A  9  Q  10  11  12  13  14  15  16  A  17  Q  18  A  19  Q  20  A  21  Q  22  A  23  Q  2246  Now just going back to some evidence that you gave the  other day, in the years preceding the Second World War  and I think up to the '50's or perhaps '60's,  according to your recollection, the villages of  Hagwilget -- or I'll confine it to the village of  Hagwilget, was almost empty of men who went fishing on  the coast?  Yes.  Would that be so?  Now, the -- can you tell me any of  the locations of the Carrier Sekani, the village sites  of the Carrier Sekani that are within 90 miles of the  territory of Gisdaywa?  Just thinking of it in terms  of the distance to your own village and going east and  south, can you tell me the names of any villages of  the carrier Sekani that would be within that distance?  Stoney Creek I think would be one of them.  Stoney Creek?  Yes.  Is that on -- that's not on Ootsa Lake, is it?  No.  Is that on a lake?  South of Vanderhoof.  South of Vanderhoof, sorry.  Thank you.  24 THE COURT:  Sorry, south of Vanderhoof?  25 MR. GOLDIE:  Vanderhoof, yes.  2 6 THE COURT:  Not on a lake.  27 MR. GOLDIE:  28 Q   Just taking that village site, and those people are  29 Carrier Sekani people, are they?  30 A   They are to us are Nuu'ts'anii, and they speak -- we  31 understand them, they understand our language.  32 Q   Yes.  Let's put it this way:  They are not  33 Wet'suwet'en in the sense that that word is being used  34 in this lawsuit?  35 A   No, they are not Wet'suwet'en.  3 6 THE COURT:  I didn't get that name.  37 MR. GOLDIE:  They are not Wet'suwet'en.  3 8 THE COURT:  No.  39 MR. GOLDIE:  Oh the name of the — yes, well perhaps Mr.  40 Mitchell could give us that.  41 THE TRANSLATOR:  Nuu'ts'anii, N-U-U'-T-S-'-A-N-I-I.  42 THE COURT:  Thank you.  43 MR. GOLDIE:  44 Q   Now, I think you told us of a personal experience of  45 yours of meeting Noostel, N-O-O-S-T-E-L, when you were  46 on the territory as a little boy, and around --  47 Charlie Kelly had decided the snow was too deep? 1  A  2  Q  3  A  4  Q  5  A  6  Q  7  A  8  Q  9  10  11  12  A  13  14  15  Q  16  A  17  18  19  20  21  22  23  Q  24  A  25  26  27  Q  28  29  30  31  A  32  Q  33  34  A  35  Q  36  37  38  39  40  A  41  Q  42  43  4 4 MR.  RUS1  4 5 MR.  GOL]  46  Q  47  A  2247  Yes.  And do you recall that?  Yes.  What house -- is Noostel next to your territory?  Yes.  And he is Wet'suwet'en?  Yes.  Is there any record of the people from Stoney Creek or  the villages that are -- were inhabited by Carrier  people, coming as far west as what are now the  territory of Gisdaywa?  No.  The -- it is -- it is -- it would be very  difficult for them to travel in our territory in the  wintertime.  And why is that, please?  Because each area -- each Wet'suwet'en area is very  mountainous, and Wet'suwet'en people have the -- they  have the knowledge, they have the special way --  special snowshoes that's needed to travel in  mountainous territory.  The Nuu'ts'anii have snow-  shoes, but they are a lot wider and longer, and they  are suited for lakes and open areas.  Yes?  And they cannot use -- they cannot travel in  mountainous area.  And their snowshoes are also made  of spruce and they break very easy.  So if I follow your evidence correctly, the people who  live east of you and south of Vanderhoof would not  come as far west because they would have to travel  through mountainous --  Yes.  -- territory, and their winter travels were more on  lakes and rivers?  Yes.  Yes, thank you.  Now with respect to Noostel whose territory is  next to that of Gisdaywa, he would travel through that  territory with the permission of Gisdaywa; is that  right?  Yes.  And what about people who came up from the south,  would they also travel with the permission of  Gisdaywa?  Do you mean other Wet'suwet'en people?  Anybody -- well other Wet'suwet'en people, yes?  Yes.  They -- well if you are travelling through one's 1  2  3  4  Q  5  A  6  Q  7  A  8  Q  9  10  A  11  Q  12  13  A  14  Q  15  A  16  Q  17  A  18  Q  19  A  20  21  Q  22  23  24  A  25  26  Q  27  A  28  Q  29  30  A  31  Q  32  33  34  A  35  Q  36  37  A  38  39  40  Q  41  42  43  A  44  45  46  47  2248  territory, you -- it's a road that has to be used and  as long as they are not trapping, I don't -- they, I  don't think, need the permission of the chief.  No.  In other words, that there would be movement?  Yes.  And quite freely free movement?  Through the territories.  Whether Wet'suwet'en or whether the people beyond the  Wet'suwet'en who were the Carrier --  Yes.  -- people?  But what was respected, if I followed your  evidence correctly, is the -- are the traplines?  Yes.  The streams and lakes where the beaver were found?  Yes.  But otherwise, people moved around pretty freely?  Yes.  And what about hunting?  Hunting is another thing -- another area where you get  what you need as you are travelling through the area.  Yes.  And you gave evidence on Monday that there are  in fact territories which are hunted on a first-come,  first-serve basis?  That is for -- for the special -- like groundhog which  is needed for your clothing, same with the caribou.  Yes.  That's for uses beyond just food uses?  Yes.  And the -- I think you gave us two examples of that,  the first one was around Mount Cronin?  Yes.  And I think in the -- in the glossary of names that we  have given, that name that you gave us was for the  Silver King Basin?  Yes.  Now, is my understanding of your evidence then  correct, that no one owns that territory?  It is within the territory of some chief, but it's  open and like the first hunter that is there is the --  looks after the hunt.  Well, nobody needs that chief's permission to take  groundhog in the Silver King Basin area; is that what  you have told the court?  He's -- he would be -- he would see that a person did  not get more than he could pack, which would mean that  he would have to leave some behind, and if he does get  more, he would have to give part of his catch to  someone who never got enough. 2249  1 Q   However you want to describe the use of it, it is --  2 it's in a separate category than the house territory?  3 A   Yes.  4 Q   Now, would you agree with me on the basis of what  5 you've said in the past few minutes, that other  6 peoples than the Wet'suwet'en used the territory of  7 Gisdaywa in the sense of being free to come and go  8 through it, to take fish and to take -- to hunt for  9 food as they went through it?  10 A   Other than the Wet'suwet'en did you say?  11 Q   Pardon?  12 A   Other than Wet'suwet'en did you say?  13 Q   Yes, yes?  14 A   No.  Just Wet'suwet'en.  15 Q   Oh.  I thought you told me that the Carrier people who  16 were further south than Goohlaht, could travel through  17 that territory, for instance, to take their furs to  18 the Babine Lake?  19 A   Yes, they could come through the territory, but on  20 their way through they can get grouse, any small  21 animal that they need for food as they went along.  22 Q   Yes, yes, that's what I meant, thank you.  Now if I  23 understand it correctly, the declaration that you want  24 this court to make, is that the use of your territory  25 by people going through it, by people hunting for  26 food, by people fishing for food, is forbidden; is  27 that what you want the court to declare when you ask  28 it to say that it is owned by Gisdaywa over -- and  29 that you have jurisdiction over it?  30 A   It is not forbidden for a Wet'suwet'en to go over and  31 go through the territory and take fish, but other than  32 that —  33 Q   I'm not —  34 A   -- it is forbidden.  35 Q   Yes.  And that's what you want the court to declare?  36 A   Yes.  37 Q   Now that is despite the fact that your use of this  38 territory is confined to about 40 square miles, I  39 think you told me.  40 MR. RUSH:  Well that's not quite accurate.  41 MR. GOLDIE:  Well if my friend is -- I don't want to misstate  42 the witness's evidence.  43 MR. RUSH:  I think you should read that sequence of questions  44 then.  45 MR. GOLDIE:  Perhaps I should not take up the time of the court  4 6 now.  47 THE COURT:  It was at the very beginning of your cross- 2250  1 examination.  2 MR. GOLDIE:  Beg your pardon?  3 THE COURT:  It was at the very beginning of your cross-  4 examination.  5 MR. GOLDIE:  Yes, I just couldn't put my finger on it right  6 away.  Oh yes, I have it here, 2193, question -- I  7 asked the witness how big the territory was and he  8 said approximately 40 square miles, and he said, it's  9 not used for hunting or trapping, "We only use the  10 valleys and the lakes."  And he agreed that the total  11 might be about 315, and that of you and your house  12 about 40, that's what I was endeavouring to summarize  13 for the witness.  14 And the question that I wanted to put to him and  15 I now put to him, was that the declaration that you  16 seek from the court forbiding the use of that  17 territory to non-Wet'suwet'en, is despite the fact  18 that you make use of about 40 square miles out of the  19 total of about 315.  20 MR. RUSH:  Well that's — that — with respect, that's not what  21 the question was.  I mean I think these should be put  22 to the witness and not summarized by my learned friend  23 here.  At line 25:  24  25 Q  "Well, I made a very rough calculation,  26 and it could be considerably out, but  27 that the total of the land area enclosed  28 in the solid line on the map in Exhibit  29 62 was about 315 square miles.  Would  30 that be about right, the total?  31 A  Total, yes.  Could be.  32 Q  And of that you and your house use about  33 40?  34 A  Yes.  35 Q  Thank you."  36  37 THE COURT:  Isn't that what Mr. Goldie is putting to the witness  38 now?  39 MR. RUSH:  Well so long as it's clear, My Lord, these are rough  40 calculations.  41 THE COURT:  Yes, we all know that.  42 MR. RUSH:  Well I think that's important.  I mean Mr. Goldie may  43 have had the surveyor's branch of the department  44 assisting him in determining what the calculation of  45 the square mileage was of the territory, and Mr.  46 Joseph clearly was not -- not determining on any  47 precise methodology what the calculation of the 2251  1 territory was.  2 THE COURT:  But the question was "about 40".  But if that's not  3 the witness' evidence, we should know that too.  But  4 that we can leave to be a matter for you to re-examine  5 on, Mr. Rush, or for Mr. Goldie to clarify.  6 MR. GOLDIE:  I'm perfectly happy with the figure of 40 because  7 that was by the witness, it was not suggested to him.  8 MR. RUSH:  Well, it was.  9 MR. GOLDIE:  I beg your pardon.  It was not suggested to him.  10 MR. RUSH:  In line 15 the question was:  11  12 Q  "Now, do you know how big that territory  13 is of Gisdaywa in terms of square miles?  14 Just approximately?  15 A  Yes.  Forty square miles.  16 Q  Around 4 0?  17 A  Yes."  18  19 THE COURT:  Well I remember Mr. Goldie seemed surprised by the  20 answer and immediately suggested he thought it was  21 much larger than that.  The 40 square miles came from  22 the witness.  23 MR. RUSH:  Yes, I appreciate that, but I'm saying the 40 square  24 miles is a very -- is an approximation, and I think --  25 THE COURT:  I don't think there is any dispute about that.  26 MR. RUSH:  As long as it's understood that that's contained in  27 the question.  28 MR. GOLDIE:  Well it was.  29 THE COURT:  Perhaps you can put your question again, Mr. Goldie.  30 MR. GOLDIE:  31 Q   Yes.  32 The declaration that you seek, Mr. Joseph, if I  33 understand your evidence correctly, would forbid the  34 use of the territory of Gisdaywa to non-Wet'suwet'ens  35 despite the fact that you and your house make use of  36 only about 40 square miles of about the total of 315  37 square miles.  Is my understanding correct?  38 A   I have the square miles part is what's confusing to  39 me.  Like if you see some of the -- I looked at some  40 of the trapline registration, it says 40 miles, 20  41 miles this way and 20 miles this way.  That's area I  42 was thinking about, 20 miles corner to corner.  43 Q   Yeah.  Well that's what you said when you say, "We  44 don't use the rest for hunting and trapping."  Is it  45 larger than that you said?  46 A   Yes.  47 Q   "But we don't use for hunting and trapping.  We only 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  2252  use the valleys and the lakes."  So it was the mileage  of the trapline registration that you had in mind; is  that right?  A   No.  I'm just using that as -- the way I see it, it  says ten -- 20 miles this way, 20 miles this way, the  way I see it.  But what I was thinking of, is the --  the activity that's happening today in the territory.  Q   Yes?  A   There is ranches and there is sawmills, logging and  there is mining.  Q   Well I -- we've been through that.  But what I'm --  what I want to be clear about is that the declaration  that you want which would forbid use to non-  Wet 'suwet 'en of the territory, includes the whole of  the territory?  A   Yes.  MR. GOLDIE:  All right, I'm content with that.  THE COURT:  Mr. Goldie, I have to take a break at some time in  the morning, and among other things to change  reporters I expect, so we'll take the morning  adj ourment.  THE REGISTRAR:  Order in court.  Court stands adjourned for ten  minutes.  (PROCEEDINGS ADJOURNED AT 11:25 a.m.)  I hereby certify the foregoing to be  a true and accurate transcript of the  proceedings herein transcribed to the  best of my skill and ability.  Toni Kerekes,  O.R., R.P.R.  United Reporting Services Ltd.  ALFRED JOSEPH, Resumed:  CROSS-EXAMINATION BY MR. GOLDIE:  (Continued)  THE COURT:  Mr. Goldie?  MR. GOLDIE:  Q   Now, Mr. Joseph, we had been discussing for a few  minutes before the adjournment the nature of the 2253  1 relief which you seek in this lawsuit.  And you had  2 given me your answer that the declaration which you  3 seek would prevent non-Wet'suwet'en from using the  4 territory; have I fairly summarized your answer?  5 A   I think the use of the non-Wet'suwet'en, I won't put  6 that on the rancher or any holder of any home.  I am  7 talking of our hunting and trapping territory.  8 Q   Yes.  But, even restricting it to that, isn't that  9 quite different from your traditional use, which was  10 to allow people going through the territory to hunt  11 and fish for food as they went through the territory?  12 A  Well, that's the way our people always -- people --  13 not all territories were like that.  Ours, our  14 territory is right in the -- up to a river and it's  15 quite wide, so people have to go through our territory  16 to get to their territory.  It's the same way to the  17 south, the east and the west.  But we don't hardly  18 travel through anybody else's territory.  So our  19 territory is maybe one of the few that have roads  20 through it.  21 Q   Well, it is only about your territory that I am  22 speaking, and I am suggesting to you that the  23 declaration that you seek in this lawsuit, with the  24 restriction that you have put on a minute ago, is  25 quite unlike the traditional use of the territory, in  26 the sense that people who were going through your  27 territory in traditional times were, according to your  28 evidence, allowed to fish and hunt for food as they  2 9           went through?  30 A   Yes.  31 Q   But you want something that goes beyond that at the  32 present time?  33 A   You say that I want something beyond that?  34 Q   Well, you want to deny people the right to hunt and  35 fish for food in the territory, isn't that right?  36 A   Yes, non-Wet'suwet'en.  37 Q   And, non-Wet'suwet'en including the Carrier people,  38 who in traditional times, before the white man, lived  39 there, went through that territory to take their furs,  40 I suggested to Babine and way points?  41 A  As far as travelling through one's territory, to sell  42 furs in traditional times, after contact, it was  43 never, not always did you take your furs to a village  44 or town because there was a lot of competition when  45 the white people came into the area.  There was white  46 fur buyers coming right out to the territory, there  47 was a name that came up in a recent meeting and elders 1  2  3  4  5  Q  6  7  8  A  9  Q  10  11  12  13  14  15  16  17  A  18  19  20  21  Q  22  A  23  Q  24  25  26  A  27  28  Q  29  A  30  Q  31  A  32  Q  33  A  34  Q  35  36  A  37  Q  38  39  40  41  A  42  Q  43  44  45  46  47  2254  said this white person came out and she remembered his  name and that fur buyer's name is still in this town.  So, not all of our people went through someone else's  territory to sell furs.  I accept what you are telling me, as indeed it is a  description of what has happened recently, am I  correct in my understanding of that?  In the last 60 years, 70 years.  All right.  But I want to be clear, please, that  before white man lived in the territory, as they do  now, the people who were non-Wet'suwet'en, native  people who are non-Wet'suwet'en, would go through your  territory and they would hunt and they would fish for  food, and that was the traditional recognition, in  other words, that was -- that right was traditionally  recognized?  Yes, they travelled.  There was, when they travelled  through the territory of chief they did so but they  had respect where he had his traps, they didn't go  near that.  You certainly didn't trap?  No.  All right.  Thank you.  But, the declaration that you  are asking now, it would also restrict or prohibit  people from cutting timber?  I think that was done when they put the land freeze on  our territory.  When you say they, you mean when the government --  The Tribal Council.  Put a land freeze on the territory?  Yes.  And that prohibited the taking of timber?  Yes.  Now, traditional -- and you are asking the court to  confirm that?  Yes.  All right.  Now traditionally when somebody was going  through the territory and they stopped there for the  night, were they not allowed to cut branches and trees  as shelter and for firewood?  Yes.  Now, we have been talking about the non-Wet'suwet'en  or Carrier people travelling through your territory,  but I want now to speak about the Carrier-Sekani  people who live to the east of the Wet'suwet'en, and I  think you have testified that there have been two or  perhaps more feasts between these people, which was to 2255  1 resolve an overlap problem; is that right?  2 A   Yes.  3 Q   Overlap meaning that the Carrier-Sekani and the  4 Wet'suwet'en were claiming, apparently, some of the  5 same land?  6 A   Yes.  7 Q   And each claimed the exclusive use of that land, is  8 that your understanding?  9 A   Yes.  10 Q   And that's what gave rise to this overlap?  11 A   Yes.  12 Q   Now, we have noted that in your territory is the  13 Indian reserve Felix George No. 3 or sometimes known  14 as Omineca Reserve No. 3, you identified that for me  15 on a map produced from the plaintiffs' documents, but  16 I want to have it also identified in the map that was  17 delivered with your August, 1986 interrogatories.  18 And, my lord, I said yesterday I was going to have  19 a binder supplied in which certain documents could be  20 left if they were marked as exhibits.  May I hand one  21 up, and would your lordship put Exhibit 78 under tab  22 1?  Under tab 5, I have placed a further extract from  23 the interrogatories of Mr. Joseph dated the 8th of  24 August, 1986, with the third page simply being an  25 extract from one of the answers and then attached is  26 the -- is a copy of the map that is referred to.  27 Mr. Joseph, if you look on the second page, you  28 confirm that that is your signature?  29 A   Yes.  30 Q   And that the Schedule "B", which is in the —  31 following the last page of the extract from the  32 affidavit, is the map that was supplied to us of the  33 territory with the interrogatory response of August,  34 1986.  There are two stickers on that that weren't  35 part of the document.  36 THE COURT:  Is it convenient to call this a book of  37 interrogatories?  38 MR. GOLDIE:  The book itself contains more than interrogatories.  39 It's just a document book for his cross-examination.  40 And I am assuming, my lord, I will have to have each  41 of the documents separately proven.  42 Q   Mr. Joseph, is that a copy of what was supplied us?  43 A   This -- there is no changes in this map, is there?  44 Q   No, this is a photocopy of what came along in August  45 of 1986.  46 A   Yes.  47 Q   And you accept that as such? 2256  1 A   Yes.  2 MR. GOLDIE:  Could the next exhibit number be allotted to the  3 extract from the interrogatories, plus the map, my  4 lord?  5 THE COURT:  Yes.  Is the next —  6 MR. GOLDIE:  79, is it?  7  8        (EXHIBIT 79:  MAP AND EXTRACT FROM INTERROGATORIES)  9  10 MR. GOLDIE:  11 Q   Before you put that away, that map also identifies one  12 of the lots on the, one of the lots on the map as the  13 Felix George Indian Reserve?  If I may point out to  14 you the words "Felix George".  That's lot 3417, is it?  15 Has your lordship located it?  16 THE COURT:  I have found the words Felix George Indian Reserve  17 No. 3.  18 MR. GOLDIE:  And there identification will be made later, that  19 identified lot 3417 as an Indian reserve of the --  20 it's shown more clearly on the earlier map but I just  21 wanted to have it identified on the map that  22 accompanied Mr. Joseph's interrogatories.  23 THE COURT:  I think the scale is slightly different from the  24 other map, but if lot 3417 is the Felix George Indian  25 Reserve No. 3, then I have found it.  26 MR. GOLDIE:  Well, perhaps -- it might be useful now if I got  27 another document, and that's an extract from  28 Order-in-Council 911, of 1923, a British Columbia  29 Order-in-Council.  30 THE COURT:  The number again?  31 MR. GOLDIE:  911.  Now, this is not a complete copy of the  32 Order-in-Council in the sense that the attachments  33 are -- consist of from the McKenna-McBride Commission,  34 the royal commission, consist of one page, but it's a  35 page which  identifies the lot number, so if your  36 lordship would go to the last page, which is headed  37 "New Reserve, Stewart Lake Agency", item number 24 is  38 a handwritten -- under reserve, Felix George No. 3,  39 and then the typed words have been stroked out and  40 below it plot 3417 and so on.  And the history of why  41 that was struck out and how 3417 got in there is --  42 can be dealt with at another time.  43 THE COURT:  All right.  If there is no objection that  44 Order-in-Council can be the next exhibit then.  45 MR. GOLDIE:  Exhibit 80.  46 MR. RUSH:  Subject to my understanding the writing will be  47 explained. 2257  1 MR. GOLDIE:  Yes, that's right.  And I think it would be proper  2 to file a complete copy of 911, in the sense that all  3 of the attachments will be there.  4 THE COURT:  All right.  I am sorry, you say 911?  5 MR. RUSH:  Did you say it was Order-in-Council 911?  6 THE COURT:  I don't see it on the document.  7 MR. GOLDIE:  That was my understanding.  8 MR. RUSH:  I don't think that's the number of it.  9 THE COURT:  It looks like 1341/12.  10 MR. RUSH:  If you look in the middle of the first page above the  11 "day of", it looks like 91, something, I can't make it  12 out.  13 MR. GOLDIE:  I am instructed it is Order-in-Council 911.  14 THE COURT:  All right.  15  16 (EXHIBIT 80:  ORDER-IN-COUNCIL 911)  17  18 MR. GOLDIE:  19 Q   Now, Mr. Joseph, that Indian reserve, as we earlier  20 agreed, is in the Gisdaywa territory and it's claimed  21 by you as part of your territory?  22 A   Yes.  23 Q   And I asked you if you knew for whose use and benefit  24 that reserve is presently held and I think I mentioned  25 to you that the Broman Lake band and I am not sure you  26 agreed with that.  27 A   I, over the years, I have been trying to find out who  28 it's been allotted to and there were times I was told  29 that it was Omineca Band, and then at times they said  30 it was Nee tah ben band.  31 Q   It was which?  32 A   Nee tah ben band.  33 Q   And?  34 A  And now I hear it's Broman Lake.  So I don't know  35 what's happening over there.  36 THE COURT:  I didn't get the second name.  37 MR. GOLDIE:  He said Broman, B-  38 THE TRANSLATOR:  N-e-e, t-a-h, b-e-n.  39 MR. GOLDIE:  40 Q   And, we had touched on the question of whether any  41 part of that reserve had been leased and you said that  42 you had been endeavouring to find out about that also?  43 A   Yes.  44 Q   If it had been leased, with your knowledge of the, as  45 chief councillor of the Indian -- with the  46 requirements of the Indian Act, would you agree with  47 me that the band for whose use and benefit that 2258  1 reserve had been set aside would have had to have  2 surrendered the leased portion to the Crown for the  3 purposes of granting a lease?  4 MR. RUSH:  I must object to that.  I think that is a question of  5 law, and there may be more than one, several ways in  6 which to lease land, which may or may not have the  7 effect suggested in the question.  In any event, I  8 think it's not for this witness to be giving his  9 opinion as to the effect of a lease under the Indian  10 Act.  Certainly not an opinion with respect to ways,  11 differentiated ways to leasing under the Indian Act.  12 MR. GOLDIE:  I was simply aware he was aware, he has given  13 evidence as chief councillor of a band.  14 THE COURT:  I think the question as put requires the witness to  15 give a legal opinion.  I think you can ask him about  16 his understanding of practice, but that's as far as  17 you can take him.  18 MR. GOLDIE:  19 Q   Have you had any experience of leasing or selling  20 reserve land?  21 A   No.  22 Q   Well, then I won't press the point.  23 A  We have been trying, like, while I was chief  24 councillor of Hagwilget, we were very -- we were, we  25 ran out of space and we have a new subdivision that's  26 already full so we have been trying to add to our  27 reserve and I knew of three or four reserves belonging  28 to Hagwilget and then that's when I an applied to DIA  29 about it and they don't seem to know anything about  30 the Felix George Reserve.  31 Q   You know enough about it to know that it was your  32 grandfather, Felix George, who applied to the Royal  33 Commission for that reserve?  34 A   Yes.  35 Q   Or, for some land, to be alloted to him by the Royal  36 Commission; is that right?  37 A   Felix George and my grandmother both.  38 Q   Cecillia?  39 A   Yes.  4 0       Q   All right.  41 MR. RUSH:  My lord, is it understood that Mr. Joseph is aware of  42 what Royal Commission is being referred to?  43 MR. GOLDIE:  Well, he referred to it in his interrogatories.  4 4 MR. RUSH:  He may have.  45 THE COURT:  Well, it hasn't been mentioned in his evidence.  The  46 witness didn't raise a question about the identity of  47 the royal commission and it may be there was more than 2259  1 one, I suppose.  I suppose you could to clear that  2 quickly with another question, Mr. Goldie.  3 MR. GOLDIE:  4 Q   When you have said you knew that Felix George had  5 applied, you were referring to the Royal Commission On  6 Indian Lands which was in your area way back in 1916,  7 the so-called McKenna-McBride commission?  8 A   They didn't speak of a royal commission, my  9 grandparents, but they said that they talked of land  10 being art only Biiwenii.  11 Q   Now, I am going to refer you to a question that was  12 put to you on your interrogatories, the answer you  13 gave to it --  14 THE COURT:  May I put this map away, Mr. Goldie?  15 MR. GOLDIE:  Yes, thank you, my lord.  16 Q   Miss Sigurdson is getting that for me, Felix George  17 was Goohlaht, was he not?  18 A   Yes.  19 Q   At the same time that your other grandfather, Joseph  20 Naloochs, was Gisdaywa?  21 A   Yes.  22 MR. RUSH:  Was there a response to that?  23 MR. GOLDIE: Yes.  24 Q   So you had two grandfathers, one was Gisdaywa and one  25 Goohlaht?  26 A   Yes.  27 Q   So if Felix George applied for or sought land it would  28 be on behalf of his house or his family?  29 A   His family.  30 Q   Now, in question 47 of your interrogatories you were  31 asked this question, and I quote:  32  33 "Did you, any of the members of your house or any of  34 your ancestors, give evidence before, make submissions  35 to or present petitions to the Royal Commission on  36 Indian Affairs for the Province of British Columbia,  37 the McKenna-McBride Commission, or if you or they did,  38 when?  39 A   Felix George, who held the name Goohlaht, was  40 married to my grandmother.  He often spoke on her  41 behalf.  He spoke on behalf of many of the  42 Wet'suwet'en.  He is not in my house.  Joseph  43 Nahloochs, who held Gisdaywa, may also have spoken."  44  45 You remember giving that answer?  46 A   Yes, the question was there any members of my house --  47 Q   Yes.  And you said he is not in your house? 1  A  2  3  Q  4  5  6  7  8  9  10  11  12  13  14  15  16  17  Q  18  19  A  20  Q  21  22  23  24  A  25  Q  26  27  28  29  A  30  Q  31  A  32  33  Q  34  35  A  36  37  Q  38  A  39  Q  40  41  42  43  A  44  Q  45  46  A  47  2260  Yes, I know that.  He made submissions but I don't  remember any member of our house.  Right.  And question 48:  "Q  If so, what was the nature of the evidence,  submission or petition?  A   They spoke on the territory, this territory they  with his using areas they wanted protected.  They  spoke of wanting more land for the people of  Hagwilget.  When someone spoke for people outside his  house this would already have been decided upon at a  feast.  Q   Who made or presented it on whose behalf?  A   Felix George, Chief Charles, Gitumskanees, spoke  on behalf of the Wet'suwet'en."  And those were the answers you gave to those  questions?  Yes.  So when we talk about Felix George and the Royal  Commission, it's the commission that was referred to  in those questions and in your answers, do you follow  me?  Yes.  All right.  Now, I asked you when Felix George made  application for additional land for Hagwilget, whether  it would be or Goohlaht or Gisdaywa, and what was,  what would be your answer?  If he applied for land?  Yes.  Felix George did apply for land for his family, Mrs.  Felix George and her children.  So, it wouldn't be really for any house, it would be  more for his family as such?  He was -- no, most of his family are Kaiyexweniits  people.  What we have been calling Gisdaywa?  Yes.  I want to refer to a couple of documents that I sent  to my friend.  Is it your understanding, through your  family's history, that Felix George originally  intended to pre-empt lot 3417 at Owen Lake?  No.  You understand what I mean by pre-emption, dont' you,  or do you?  I think it has something to do with applying for  homestead. 2261  1 Q   Yes, applying to the Provincial Government for a Crown  2 grant of land and on terms that that's where you are  3 going to live and you are going to improve that land,  4 does that ring a bell with you?  5 A   Yes.  6 Q   And it's not your understanding that Felix George  7 first desired to pre-empt lot 3417?  8 A   No, I never heard of that.  9 Q   But, you are aware, are you not, that your uncle  10 Thomas George pre-empted land in that area?  11 A   He may have.  12 Q   When you say he may have, you mean you are agreeing  13 with me but you are not sure?  14 A   I am not sure.  Because I heard that the place they  15 called George Lake, and when I was there in '36, my  16 aunt said that is where your uncle lived across the  17 way.  So, that's the only time I knew that my uncle  18 lived up in that area.  19 Q   I want to read to you from a letter dated April 25th,  20 1923, from a Mr. Ditchburn, Chief Inspector of Indian  21 Agencies, to Mr. McAllan, who was the Indian Agent,  22 Fort Fraser, 1923 was before you were born of course?  2 3 A   Hm-hmm.  24 Q   And, I simply want to see whether what Mr. Ditchburn  25 sets out in his letter, whether any part of it  2 6 corresponds to any knowledge you might have.  And I  27 read as follows:  28  29 "Dear Sir:- I beg to acknowledge the the receipt of  30 your letter of the 17th instant, with further  31 reference to the winding up of the report of the Royal  32 Commission and in reply I beg to say -- "  33 MR. RUSH:  Excuse me, if you have another copy  not for me,  34 for the witness just to follow you.  35 MR. GOLDIE:  By all means.  Perhaps your lordship would care  36 to —  37 THE COURT:   Yes.  Thank you.  This is to Mr. McAllan, is it?  38 MR. GOLDIE:  Yes, who is described to be the Indian Agent at  39 Fort Fraser.  4 0 THE COURT:  Yes.  41 MR. GOLDIE:  And Mr. Ditchburn, who was, whose name is well  42 known in the field of those who study the report of  43 the Royal Commission -- not a large group -- he and a  44 Major Clark on behalf of the Province revised the  45 Royal Commission's report which was finally accepted.  46 Going to the second paragraph:  47 2262  1 "With regard to the allottment of Lot 3417, Range 5,  2 Coast District, as a reserve for Felix George in lieu  3 of lands applied for under Applications 24 and 32..."  4  5 If I can ask your lordship to look at the Exhibit 80,  6 the Order-in-Council 911, the page that is attached to  7 it from the report, your lordship will see that item  8 24, Felix George Lot 389, Range 4, Coast District, is  9 marked as disallowed.  10 THE COURT:  Yes.  11 MR. GOLDIE:  And 32 has also an initial request marked as  12 disallowed.  13 THE COURT:  Yes.  14 MR. GOLDIE:  And, it is apparent, in my submission, that what  15 Mr. Ditchburn is referring to is applications 24 and  16 32, which I just referred to.  So he goes on:  17  18 "I may inform you that this Indian through friends  19 applied to pre-empt Lot 3417 at Owen Lake as his  20 brother had a pre-emption adjoining this Lot.  There  21 having been serious objection to the setting aside of  22 Lot 389, Range 4, Coast District..."  23  24 Which is the disallowed reference in application  25 24,  26  27 "...and the south half of lot 2401 Range 4, Coast  28 District, by the Attorney-General, I agreed to these  29 being cut out if the whole of Lot 3417, (225 acres)  30 were constituted a reserve for this Indian.  At first  31 the Provincial authorities merely wished him to allow  32 him to obtain a pre-emption record but I pointed out  33 that as the commission had recommended a reserve for  34 him and this was to be cut out it would be necessary  35 to have Lot 3417 constituted a reserve in the regular  3 6 manner."  37  38 Now, does any part of that narrative sound familiar  39 to you, Mr. Joseph?  40 A   No, I -- the way it's written here, the way -- is  41 something that I haven't heard.  Because my  42 grandfather, grandmother, they never went to school.  43 So, I don't know how they could relate to me a  44 document such as this.  45 Q   I fully understand.  I may have supplied you with the  46 evidence necessary to support the claim to 3417, as to  47 the family of Felix George, but -- 2  MR.  GOLDIE  3  THE  COURT:  4  MR.  GOLDIE  5  Q  6  7  A  8  MR.  GOLDIE  9  0  1  1  2  3  MR.  RUSH:  2263  1 THE COURT:  Well, it's an Indian reserve now anyway.  It is an Indian reserve now.  But perhaps --  But it is not for the use and benefit for the people  at Hagwilget, is it.  That's the concern you have?  Yes.  But I mention that at this time, because your  lordship asked me about the derivation of 3417 in the  Order-in-Council and, in my submission, that shows how  3417 was substituted for the lots that were referred  to in that original allottment.  At least it shows some numbers on a page and some  14 documents would seem to refer to it.  15 MR. GOLDIE:  Well, yes, if —  16 THE COURT:  Doesn't really prove anything at the moment?  17 MR. GOLDIE:  No, I said at the present time it may provide the  18 witness with some evidence that he may be able to use  19 at some later date.  But all that we have from the  20 witness is that his understanding is that Felix George  21 applied for land to the Royal Commission.  22 THE COURT:  For his family?  23 MR. GOLDIE:  For his family.  2 4 THE COURT:  Yes.  25 MR. GOLDIE:  26 Q   Now, is there any suggestion that what Felix George  27 did, in applying for land and having alloted to him  28 3417, in the territory of Gisdaywa, is there any  29 suggestion that that was against Wet'suwet'en law or  30 improper?  And when I say suggestion, Mr. Joseph, I am  31 talking about in the traditions of your house, and in  32 the stories that have been told you by members of your  33 house, and your family, about that Indian Reserve,  34 3417?  35 A  Well, I think he is seeing that a family of Felix  36 George, seeing the numbers that was there at the time,  37 and the setting up of ranches all around there, it was  38 the only thing that they could do at the time.  39 Q   Yes.  That's your answer to my question?  40 A   Yes.  41 Q   But let me go on to put it in this term, is there  42 anything in the house crest or in the songs and  43 traditions of the house, which comment on this, which  44 are referable in any way to that Indian reserve?  45 A   Not on the house crest or the songs.  46 Q   Now, I want to go to the question of the present day  47 situation with respect to this reserve, and we have 2264  1 touched on that, but do you know who the chief is of  2 the Broman Lake Band?  3 A   There again, there is a change all the time.  I knew  4 the former chief but I believe there has been a change  5 since --  6 Q   Is the name Sophie Ogen familiar to you?  7 A   Yes, that's the one I knew when I was chief  8 councillor, but I am out of chief councillor now and I  9 think she is out.  10 Q   But, at the time, for instance in 1986 at the All-Clan  11 feast, she was the chief of the Broman Lake Band at  12 the time?  13 A   I don't know whether she was at the time or not.  I  14 don't know exactly when the election was.  15 THE COURT:  Can we have a spelling of that?  16 MR. GOLDIE:  O-g-e-n, first name of Sophie.  17 Q   Doesn't her name appear on the feast seating in  18 Exhibit 62, and I will -- I am showing you the feasts  19 sitting of the clan of Gitdumden as a host and I see  20 that to the right of Ellen Abraham the name Sophie  21 Ogen, is that the same person?  22 A   Yes.  23 Q   The elected or the chief of the Broman Lake Band at  2 4 one time.  25 She, however, doesn't appear on the genealogy of  26 the house, she is not a member of your house?  27 A   No.  28 Q   Do you know what house she is a member of, if she is a  29 member of any house?  30 A   Not too sure.  She may appear in other witnesses that  31 are coming up.  32 Q   Would it appear, then, that from the evidence we have  33 before us, namely, the seating chart and the  34 genealogy, that she is a member of a clan of  35 Gitdumden, but she is not a member of your house?  36 A   No.  37 Q   And she is not a Wet'suwet'en?  38 A   She is Wet'suwet'en.  39 Q   You say she is?  40 A   Yes.  41 Q   Is she not one of the Carrier-Sekani group, didn't she  42 appear as one of the Carrier-Sekani group at the  43 All-Clan feast?  44 A   She participates in the Wet'suwet'en Feast House and  45 in that, in the Feast House like that, we don't ask  46 what tribal council you belong.  They automatically  47 come and participate. 1  Q  2  3  4  5  6  A  7  Q  8  A  9  Q  10  A  11  Q  12  13  14  A  15  THE  COURT  16  A  17  THE  COURT  18  19  20  MR.  GOLDI  21  22  23  24  25  26  27  THE  COURT  28  29  30  31  32  A  33  THE  COURT  34  35  36  A  37  THE  COURT  38  A  39  MR.  GOLDI  40  41  THE  COURT  42  MR.  GOLDI  43  44  45  46  47  2265  Well, I am now talking about -- I am now going back to  the question of the overlap, was she not invited to  that feast because she was one of the people claiming  on behalf of the Carrier-Sekani, land which falls  within the land claimed in this lawsuit?  At the Burns Lake feast?  Yes.  She was there.  And she was there because she was invited?  Yes.  And she was invited because she was one of the  claimants of the Carrier-Sekani under their land  claim?  Yes.  :  I am sorry, yes?  Yes.  :  May I ask, Mr. Goldie, whether the overlap was  between Carrier-Sekani on the one hand and  Wet'suwet'en on the other hand?  E:  As far as I know, the Carrier-Sekani claim, and I  am just going to come to its extent, never went so far  west as to touch any of the Gitksan.  It was in  relation to the Wet'suwet'en.  The Carrier-Sekani  claim is a very large one, and the overlap that we are  talking about is only the southeast portion of the  land claim here.  :  Perhaps I can ask the witness if that's correct, Mr.  Joseph, that the overlap that was discussed at the  Burns Lake All-Clans meeting was an overlap between  Carrier-Sekani on the one hand, and Wet'suwet'en on  the other hand?  Yes.  :  And is it possible to be more specific still and say  that the overlap problem was between Gisdaywa and a  house of Carrier-Sekani?  No, it was more than Gisdaywa's territory.  :  But some of it?  Some of it, yes.  E:  If your lordship would look at tab 3 of the  document book, --  :  You mean tab 3 of the --  E:  Of the black binder I just handed up.  lordship will see a statement of claim,  copy of the statement of claim that was filed in  September of 1986, that is to say, after the meeting  in Burns Lake, and the plaintiffs, if your lordship  will --  Your  a certified 2  MR  3  MR  4  MR  5  6  7  2266  1 MR. RUSH:  The Burns Lake meeting was in '87.  GOLDIE:  I am talking about the first one.  RUSH:  That was the first one, in Moricetown.  GOLDIE:  I am talking about the April, '86 meeting, as you  say, in Moricetown.  Your lordship will first notice  that the plaintiffs are suing on behalf of themselves  and on behalf of bands, they are not suing on behalf  8 of houses.  9 THE COURT:  I see.  10 MR. GOLDIE:  And the fourth plaintiff is Sophie Ogen, chief of  11 the Broman Lake Indian Band, suing on behalf of  12 herself and all other members of the Broman Lake  13 Indian Band.  The claim, and it's very difficult to  14 make out in this, but there is a Schedule "A", and  15 it's a very poor reproduction of a small scale map,  16 and I am afraid your lordship will have to take my  17 word for it, but the -- it is defined as the Carrier  18 impact area in the statement of claim and that is an  19 area in which it is said that the operations of the  20 Aluminum Company in respect to their reservoir, have  21 an impact.  But it covers at least part of the area in  22 question here.  23 It's a little more clearly indicated --  24 THE COURT:  Well, is the impact area the same as the claim area?  25 MR. GOLDIE:  No, the Carrier-Sekani claim area extends much more  26 extensively to the east, a way beyond that which in  27 respect to which there is an overlap.  28 THE COURT:  Because this impact area seems to run on a line at  29 least on the highway, halfway between Smithers and  30 Houston.  And are you saying the Carrier-Sekani claim  31 area is --  32 MR. GOLDIE:  More extensive than what is shown as the impact  33 area.   The impact area is part of the claim area.  34 THE COURT:  Is the impact area west of the claim area?  35 MR. GOLDIE:  No, it's east.  And it doesn't have, as I  36 understand, we don't have a concern.  But the next  37 document is Mr. John's affidavit.  38 MR. RUSH:  To what?  His affidavit for what purpose?  39 MR. GOLDIE:  Well, it's an affidavit in this same action and I  40 think it was --  41 THE COURT:  It's in tab 3.  42 MR. GOLDIE:  Yes.  43 THE COURT:  Mr. Goldie, is this a convenient time to adjourn?  44 MR. GOLDIE:  It becomes that at this hour, my lord.  45 THE COURT:  All right.  2 o'clock please.  4 6        (PROCEEDINGS ADJOURNED FOR LUNCH)  47 2267  I hereby certify the foregoing to be  a true and accurate transcript of the  proceedings herein to the best of my  skill and ability.  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  Wilf Roy  Official Reporter 2268  1 (PROCEEDINGS RECONVENED AT 2:00 p.m.)  2  3 THE REGISTRAR:  Order in court.  Recalling Delgamuukw against  4 Her Majesty the Queen.  5 THE COURT:  Mr. Goldie.  6 MR. GOLDIE:  My Lord, could I ask Your Lordship to look at  7 Exhibit 80 which is the copy of Order in Council 911.  8 THE COURT:  Well I had it here just a moment ago.  Yes, thank  9 you.  10 MR. GOLDIE:  If Your Lordship would look at the — again, the  11 last page to which reference has been made.  12 THE COURT:  Yes.  13 MR. GOLDIE:  You will see at the top, "Extract from A.G.B.C.,  14 doc. #1006 Schedule OIC 911," dated July 26, 1926.  15 THE COURT:  Yes.  16 MR. GOLDIE:  1926 should be 1923.  17 THE COURT:  Yes.  18 MR. GOLDIE:  And that was -- that heading was typed on, it's not  19 part of the original document.  And I understand my  20 friends have agreed to that.  21 MR. RUSH:  I have no problem.  22 THE COURT:  Thank you.  23 MR. GOLDIE:  24 Q   Mr. Joseph, we had been discussing the Felix George  25 Indian Reserve just before the luncheon adjournment,  26 and I just have a couple of more questions with  27 respect to it.  At the present time, that reserve is  28 still set aside for the use and benefit of the Broman  29 Lake Band as you understand?  30 A   Yes.  31 Q   If the court makes the declaration here that you are  32 seeking, would that include in the territory of  33 Gisdaywa, the Broman -- the Felix George Indian  34 Reserve number three?  35 A  Would that include?  36 Q   Yes.  I mean if the court declares that the territory  37 that you claim belongs to the House of Gisdaywa --  38 does in fact belong to the House of Gisdaywa, and that  39 Gisdaywa has ownership and jurisdiction over it, would  40 that, so far as you are concerned, declaration extend  41 to and cover the land within Indian reserve -- the  42 Felix George Indian Reserve number three?  43 A   Yes.  44 Q   And the result of that order would be to exclude from  45 the utilization of that reserve, the members of the  46 Broman Lake Reserve -- Indian Band?  47 A   I don't think it would exclude any members of the 1  2  Q  3  4  5  A  6  Q  7  8  A  9  Q  10  A  11  Q  12  A  13  Q  14  15  A  16  Q  17  18  A  19  Q  20  21  A  22  Q  23  24  A  25  Q  26  27  A  28  29  Q  30  31  A  32  33  34  35  Q  36  37  38  A  39  Q  40  41  42  A  43  Q  44  45  A  46  Q  47  2269  House of Kaiyexweniits if they were at Broman Lake.  Yes, I follow you.  You are saying that if any members  of your house are members of the Broman Lake Band,  that wouldn't affect them?  No.  Are there any members of your house who are members of  the Broman Lake Band?  I think Rita George would be.  Rita George?  Yes.  Any others to your recollection?  No, I think that's the only one that I know of.  Do you know how many people comprise the Broman Lake  Band at this time?  No.  Would it -- if you were asked to make a guess, would  it be 25, 50, a hundred or --  I don't know what the numbers would be.  I think you had told us before lunch that Sophie Ogen  may not still be the chief of the band?  Yes.  But is Rita George the chief of the band now, as far  as you know?  No.  Whoever is the chief, you don't speak for him or her  in this lawsuit, do you?  I am -- no, I'm speaking for the members of  Kaiyexweniits.  Yes, thank you.  Do you know where the main Broman  Lake Band reserve is?  It is somewhere in the -- I know there is a place east  of Houston, and I'm told that that is where Broman  Lake Band is located, but I've never visited -- I stop  at the truck stop that's close by.  Is it -- do you know where the Duncan Lake Indian  Reserve number 12 is, or is that the one that is  nearby?  I've never heard the name.  I see.  But the Broman Lake Band, it's on the border  of Broman Lake, is it not, on the shore of Broman  Lake?  Yes.  And is Broman Lake not within the northern territory  of Madeek?  Yes.  And there is a village there of the Broman Lake people  on the shore of Broman Lake, and that village is part 2270  1 of the reserve, or am I going beyond your personal  2 knowledge?  3 A   Only one I know is two houses near at the truck stop,  4 and I'm told that was where Sophie Ogen live, and  5 that's all I know.  6 Q   I see, all right.  But you do know that the -- that  7 Broman Lake itself is in the northern territory of  8 Madeek?  9 A   Yes.  10 Q   And if the -- if there is a village on the shore of  11 Broman Lake populated by Broman Lake Band members, the  12 only one of those which would be a member of your  13 house would be Rita George, if she lives there?  14 A   Yes.  15 Q   I want to show you a --  16 THE COURT:  Mr. Goldie, before you leave that, I don't see Rita  17 George on the list of the house that is in -- attached  18 to the interrogatories which are now Exhibit 78.  19 MR. GOLDIE:  Well I just made a note of the name to look at the  20 list later on, My Lord, I haven't --  21 THE COURT:  Unless she is married and her name now is Rita Tom.  22 Is she the same person, perhaps?  23 A   No.  24 THE COURT:  Well is Rita George on this list?  I don't see her.  25 MR. GOLDIE:  26 Q   The list that His Lordship is referring to is the list  27 that's attached to your interrogatory response, Mr.  28 Joseph, and that was the one that we were speaking  29 about earlier this morning when we took off the name  30 of Ida Austin and added the name of Abraham Kenni?  31 A   Um-hmm.  32 Q   Should we have added Rita George to that list?  33 A   I think Rita George's name is on the chart.  34 Q   On the genealogy?  35 A   Yes.  36 Q   Well perhaps I didn't make myself too clear.  I  37 thought the list that we discussed this morning was  38 the list of the house members and that we could put  39 the genealogy chart to one side.  Are there people on  40 the chart who are house members who are not on the  41 list that's in front of you?  42 A   Yes.  I think Rita George isn't on here and Brian  43 George isn't on here either.  44 Q   Well, perhaps if I may put it this way:  Would you be  45 kind enough to, this evening, to take a look at the  46 chart again?  47 A   Yes. 2271  1 Q   And decide and tell us whether there should be any  2 more names added to that list as house members of  3 the -- of your house?  4 A   Yes, I can do that.  5 MR. GOLDIE:  I perhaps didn't make myself clear yesterday, My  6 Lord.  7 Well I want to go back -- I'm sorry, does Your  8 Lordship have any more questions on that?  9 THE COURT:  No.  I'm just trying to keep track of these things.  10 I'm at a bit of a loss at the moment, but I'm sure it  11 will all come clear in due course.  12 MR. GOLDIE:  13 Q   I was going to ask you if you recognized Sophie Ogen's  14 signature, and under tab 2 of the document book, I  15 have placed an Application for a Water Licence.  Do  16 you recognize Sophie Ogen's signature, or have you had  17 occasion to see it before?  18 A   I've never seen that before.  19 Q   All right.  I'm going to ask you to assume that it is  20 her signature, and I'll give you something to compare  21 that with a little later.  But are you familiar with  22 applications for water licences under the Water Act?  23 A   The only thing I'm familiar with is the applications  24 for putting in sewer, lagoons, and things like that.  25 Q   Yes.  Well this isn't quite the same, but I'm going to  26 ask you to follow this through with me for just a  27 second.  You will see that it is an application of the  28 Broman Lake Indian Band to the Comptroller of Water  29 Rights for a licence to divert and use and perhaps  30 store water out of Broman Lake, which you tell me is  31 in the territory of Madeek?  32 A   Yes.  33 Q   And which flows northwest to southeast and discharges  34 into Old Womens Lake.  That's outside -- is that  35 outside Madeek's territory, Old Womens Lake, or are  36 you familiar with that?  37 A   I think it's within.  38 Q   It's within Madeek?  39 A   Yeah.  4 0 Q   All right.  41  42 "And give notice of my application to all  43 persons affected (that) the point of  44 diversion will be located at Point of Intake  45 Southeast end of Lake.  46  47 "The quantity of water to be diverted or 1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  A  17  Q  18  19  20  21  22  23  A  24  Q  25  26  27  A  28  Q  29  30  31  A  32  Q  33  34  A  35  Q  36  A  37  Q  38  39  A  40  Q  41  42  43  44  45  46  47  A  2272  stored is 100 Gallons per minute.  "The purpose for which the water will be  used is Fish Farming.  "The land or mine on which the water will be  used is Broman Lake Indian Reservation at  Plan 12 / Lot 3506 Range 5."  Et cetera.  The date is 29 November, and a signature  which I'm instructed is Sophie Ogen.  Now just assuming that is an application for the  purposes stated, namely fish farming, is that -- would  that be in your opinion, a utilization of the  resources of the territory of Madeek?  Yes, I think it would.  So if -- and I'm asking you to assume this:  If the  court made an order of the kind requested here, that  the holder of the name of Madeek owned the territory  that you spoke to when you gave your evidence in  chief, then this activity by the Broman Lake Indian  Band would be forbidden; is that right?  I think you could repeat that question again, please.  Yes.  I am asking you these questions because I  understand that you speak for Madeek at the present  time?  Yes.  The first interrogatory which was filed on behalf of  Madeek was -- the response was sworn to by Mr. George  Naziel?  Yes.  And the second was sworn to by you.  That's correct,  isn't it?  Yes.  And Mr. Naziel has died?  Yes.  And did he die between the first and second  interrogatories between August and December '86?  Yes.  Well, now speaking to you then as a person who is  responsible for the Madeek territory in which Broman  Lake is located, if the court grants a declaration  that the holder of the name of Madeek is entitled to  ownership and jurisdiction of that territory, that  would stop the Broman Lake Indian Band from carrying  on fish farming in Broman Lake, would it not?  That would stop if Madeek was -- wasn't consulted. 1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23 THE  2 4 MR.  25  26  27  28  29  30  31  32  33  34  35  36  37  3 8 MR.  39  4 0 THE  41  42 THE  43 THE  44  4 5 MR.  46  47  Q  A  Q  2273  And gave permission?  Yes,  Yes.  Thank you.  Now I think you told me this morning that Sophie  Ogen is a Wet'suwet'en and a Carrier Sekani?  A   She is the Wet'suwet'en under the Wet'suwet'en law.  Q   But she is also the -- or she was also the chief of a  Carrier Sekani Band; is that right?  A   Yes.  Under the D.I.A. system she is a chief, elected.  Q   And she was present, I think we agreed, in the  Moricetown Feast in April 1986, as a Carrier Sekani?  A   Yes.  Q   And you were present at that?  A   Yes.  Q   And the all clan feast in April 1986 as we have heard,  was an attempt to settle these questions of overlap  between the Carrier Sekani claims and the Wet'suwet'en  claim in this action?  A   Yes.  Q   And there was a -- before that feast, did you and Mr.  Neil Sterritt fly Mr. Edward John over the disputed  territory, accompany him in an airplane trip?  COURT:  Was there an answer to that?  GOLDIE:  Q   I haven't heard.  A  What I -- I remember flying to an area but not with  Neil and Edward John.  Q   Not with Edward John?  A   No.  Q   I see.  The reason I ask you that question is that  there was produced to us a document which was said to  be a transcript of that particular feast, and if you  will look in that book in front of you, you will find  it under tab 8.  Could you look at that please.  My Lord, I wonder if my friend has an objection  to the marking of the Application for Water Licence  under tab 2 of the book?  RUSH:  I don't think I can go any further than agreeing that  it can be marked as an exhibit for identification.  COURT:  That's probably right.  What's the number, please,  Madam Registrar?  REGISTRAR:  Eighty-one.  COURT:  This will be 81-A, then, for identification — I'm  sorry, it would be 81 for identification.  GOLDIE:  Yes. 2274  1 (EXHIBIT 81 FOR IDENTIFICATION - Application for a  2 Water Licence dd. November 29, 1985)  3  4 THE COURT:  You are at tab 8?  5 MR. GOLDIE:  6 Q   Now we are going to tab 8.  And as I've told you, Mr.  7 Joseph, this was produced to us by your counsel, and  8 it was said to be a transcript of the all clan feast  9 at Moricetown on April the 6th, 1986.  Have you seen  10 this before?  11 A   Yes.  12 Q   So far as you are concerned then, this -- this is a  13 written record of what went on?  14 A   Yes.  15 MR. GOLDIE:  Now before I go any further, I would ask, My Lord,  16 that that be marked as an exhibit.  17 THE COURT:  Exhibit 82.  18 THE REGISTRAR:  Eighty-two.  19  20 (EXHIBIT 82 - Transcript of All Clan Feast at  21 Moricetown on April 6, 1986)  22  23 MR. GOLDIE:  24 Q   If you would look at, please, at page 36, the page  25 numbers are at the bottom.  The speaker in the middle  26 paragraph is said to be Eddie John.  Eddie John is the  27 head of the Carrier Sekani Tribal Council?  28 A   Yes.  29 Q   And about half-way down that paragraph which starts  30 off with "Merci. (Thank You) (in Nutseni),"  31 N-U-T-S-E-N-I, I see this sentence:  32  33 "I was invited by Neil Sterritt and Alfred  34 Joseph.  We flew over our boundaries.  We  35 understand, all three of us, where our  36 boundaries are.  We went by helicopter for  37 five days to Tatla Lake, Pincher Lake, Tachy  38 Lake."  39  40 Now just pausing there, does that refresh your  41 recollection of the lakes and the five day helicopter  42 trip?  43 A   No.  We flew into Tatla, Bear Lake on two different  44 occasions, and each time I went in I went along as an  45 interpreter for Neil or whoever, Gitksan people, to  46 tell the people -- the non-Gitksan speaking people  47 what we were there for. 2275  1 Q   Right, um-hmm?  2 A  And there were times Neil and Eddie went out by  3 helicopter, but I accompanied them on one trip up the  4 mountain.  5 Q   I see.  Right, thank you.  But did you understand that  6 the purpose of the helicopter flights was to -- for  7 Neil Sterritt to show the boundaries of the Gitksan  8 Wet'suwet'en claim and for Mr. John to show the  9 boundaries of the -- of the Carrier Sekani claim?  10 A   Yes.  11 Q   And then that -- after that came the -- the feast on  12 April the 6th?  13 A   Yes.  14 Q   And —  15 THE COURT:  I'm sorry, Mr. Goldie, what page was that on,  16 please?  17 MR. GOLDIE:  That was page 36, and at the bottom of the page,  18 it's the paragraph beginning "Eddie John".  19 THE COURT:  Yes.  20 MR. GOLDIE:  And then about half-way down, two words in, "I was  21 invited by Neil Sterritt."  22 THE COURT:  Thank you.  23 MR. GOLDIE:  24 Q   On the part of the helicopter flight that you were on,  25 did they fly over your territory?  2 6 A   No.  27 Q   It was all to the east and the north, was it?  28 A   Northeast.  29 Q   Northeast, thank you.  Did you have with you any maps  30 or photographs?  31 A   No, no.  32 Q   Did you keep any records of the -- or notes?  33 A   I was -- I didn't bring any writing material, I was  34 just along as an interpreter.  35 Q   Right, thank you.  Anybody else keep notes to your  36 recollection?  37 A   I think Neil may have, because most of the day he was  38 up with Eddie John and I was around the camp waiting  39 for them, taking up the Gitksan elders in the  40 helicopter.  41 Q   Now, at the big feast in Moricetown which followed  42 this helicopter -- these helicopter flights, there was  43 no agreement as to how the overlap problem should be  44 dealt with, am I correct in that?  45 A   Yes, correct.  46 Q   The -- to your recollection, at the feast or at any  47 time prior to the feast, did anybody indicate to you 2276  1 the extent of the Carrier Sekani claim?  2 A  We -- I think we were told just on an ordinary map  3 where -- what part the claim was, it was just pointed  4 out to us.  5 Q   And where did that take place, please, at the feast?  6 A   Yes.  7 Q   This was a map which the Carrier Sekani people had  8 with them and --  9 A   No.  It was just a -- just a regular map of British  10 Columbia, and say -- someone pointed out, "This is the  11 area that the Sekani Carrier are claiming."  12 Q   Do you know what happened to that map?  13 A   No.  It wasn't being marked, they were just pointing  14 it out.  15 Q   I include that map in the request I've made of my  16 friend for the production of the documents.  17 Now I'm going to show you in the -- in the book  18 that you have in front of us under tab 3, an affidavit  19 of Mr. John's, it's in the action in which the  20 Statement of Claim under tab 3 is -- was filed.  And I  21 can tell Your Lordship that that Statement of Claim  22 was later struck out for reasons which are not related  23 to the land claim.  24 THE COURT:  But not the writ?  25 MR. RUSH:  The action was struck out by the Court of Appeal.  26 MR. GOLDIE:  Yes, that's correct.  The history of it was that  27 the applicants applied to be joined in an existing  28 litigation, and the chamber judge ordered them to be  29 joined as plaintiffs.  30 THE COURT:  The applicants being the Carrier Sekani?  31 MR. GOLDIE:  Yes, that's correct.  32 THE COURT:  Yes.  33 MR. GOLDIE:  That order was later set aside by the Court of  34 Appeal.  The affidavit which is dated June the 12th --  35 or sworn June the 12th, was filed in support of the  36 application that the applicants be allowed to be  37 joined as parties in the litigation.  And I'm going to  38 ask Mr. Joseph to have before him the affidavit which  39 follows the Statement of Claim.  40 Now the affidavit is that of Edward John, who  41 deposes that he is a member of the Stuart Trembleur  42 Indian Band and Tribal Chief of the Carrier Sekani  43 Tribal Council.  On April -- paragraph 2:  44  45 "2.  On April 15, 1982, the Carrier Sekani  46 Tribal Council adopted a Declaration and  47 Claim based on aboriginal title on behalf of 2277  1 the Carrier and Sekani Tribes who live in  2 north-central British Columbia."  3  4 Exhibit A is the declaration, and -- well it's  5 apparently just of the map, same map that was attached  6 to the Statement of Claim.  7  8 "3.  The Declaration and Claim was submitted  9 to the Government of Canada in April of  10 1982.  Canada accepted the Claim for  11 negotiation on October 24, 1983.  Now shown  12 to me and marked Exhibit 'B' to my affidavit  13 is a letter of December 23, 1983  from the  14 Honourable John Munro, confirming Canada's  15 acceptance of the claim for negotiation."  16  17 And Exhibit B is therefore Mr. Munro's letter.  18  19 "4.  All parts of the Carrier Sekani  20 Territory have traditionally been owned,  21 occupied, used and subject to the  22 jurisdiction of the Indian people."  23  24 Five alleges the nature of the way of life is based on  25 hunting, fishing, trapping and other forms of  26 harvesting resources.  Activities are done seasonally,  27 et cetera.  28 MR. RUSH:  Is there some part of this that my friend is going to  29 put to the witness?  30 MR. GOLDIE:  31 Q   No, no.  I'm just reading the affidavit as a  32 background to the questions that I'm going to put to  33 Mr. Joseph.  34 And paragraph 6 is an allegation with respect to  35 the beliefs.  Paragraph 7:  36  37 "7.  At the present time, most but not all  38 of the Indian people are members of Indian  39 Bands pursuant to the Indian Act, and the  40 majority of those reside on Indian Reserves  41 within the Carrier Sekani Territory."  42  43 "8.  Harvesting of renewable resources  44 continues to be the major source of  45 nourishment for the Indian people."  46  47 And refers to salmon, hunting and trapping. 2278  1  2 "9.  Harvesting of renewable resources from  3 the Carrier Sekani Territory also continues  4 to be very important..."  5  6 "10.  Now shown to me and marked Exhibit 'C  7 to my affidavit is a map showing the part of  8 the Carrier Sekani Territory which is  9 drained by the Nechako River and its  10 tributaries.  On that map are shown some of  11 the Reserves in that part of the territory."  12  13 Now I want you to refer to Exhibit C which is a map in  14 the pocket that follows.  15 Mr. Joseph, you have before you, then, Exhibit C  16 to the affidavit of Edward John, and it is a map with  17 a -- I would call it a free-hand line that if one goes  18 to the right-hand side of the map and locates Prince  19 George, that line appears to go north, cuts across  20 Williston Lake, then goes up to the right as high as  21 Sekani Chief on Highway 99 I guess it is, west across  22 the Finlay River, and then south cutting across the  23 Skeena and the Babine, and crossing the Highway 16  24 between Smithers and Houston.  Do you follow that  25 line?  Have you followed that line with me?  26 A   Yes.  27 Q   And then it goes south and east at -- it goes outside  28 Morice Lake and way down past Whitesail, and finally  29 comes up again to Prince George.  30 Would you agree with me that within the territory  31 encompassed by that line, lies your territory of  32 Gisdaywa?  33 A   Yes.  34 Q   Was that the sort of territory that was indicated on  35 the map at the feast as being the Carrier Sekani land  36 claim?  37 A   Yes.  We were told that, all the chiefs that were  38 involved in that overlap, and I was one of them.  39 Q   Yes.  Now I just will come back to that in a minute,  40 but I want to complete the references to the affidavit  41 of Mr. John —  42 THE COURT:  Mr. Goldie, you mentioned Whitesail.  43 MR. GOLDIE:  Yes.  44 THE COURT:  I haven't found it.  45 MR. GOLDIE:  The southeast portion of the map, of the -- yes.  46 Does Your Lordship see Ootsa Lake?  4 7 THE COURT:  Yes. 2279  1 MR. GOLDIE:  Go left, and Whitesail is at —  2 THE COURT:  Oh yes, I see, all right.  3 I understand, yes.  I was looking at this other  4 line trying to figure -- there are two lines but I see  5 that's the highway.  6 MR. GOLDIE:  Yes.  7 THE COURT:  Yes, I finally figured it out, thank you.  8 MR. GOLDIE:  9 Q   The paragraphs of the affidavit which allege the  10 impacts on the Carrier Sekani people by the operation  11 of the Kemano project are 11, 12, 13, 14 and 15, and  12 16 is an allegation on information and belief of  13 impacts of the Cheslatta and Nee Tahi Buhn, that's  14 N-E-E, T-A-H-I, B-U-H-N, Indian Bands.  And that  15 continues in the same vein for other Indian bands in  16 17, 18 and 19 and 20, and the -- the affidavit  17 concludes that they -- what they would propose doing  18 to prove their aboriginal title if they were allowed  19 into the action.  20 And then paragraph 29 says:  21  22 "29.  I am authorized and do swear this  23 Affidavit in support of an application for  24 the following persons to be added as a party  25 in the within action:"  26  27 Himself for certain people, and then it goes down,  28 Chief Sophie Ogen on behalf of, amongst other bands,  29 Broman Lake, and then there is a declaration -- the  30 declaration of and claim of the -- which is Exhibit A,  31 is dated April 15th, 1986, and the meeting with your  32 people was April the 6th, 1986.  So that's -- well  33 that's correct.  34 And the second page of the declaration has a  35 number of signatures on it, and one of them purports  36 to be that of Maureen Ogen for Acting Chief Sophie  37 Ogen of Omineca Band.  Was it your understanding that  38 the term Omineca and Broman Lake are sometimes used  39 interchangeably?  40 A   I only heard of Broman.  41 MR. GOLDIE:  All right, thank you.  42 My Lord, I would like that marked as an exhibit,  43 and it's tendered under -- I think it's Section 29 of  44 the Evidence Act as being a certified copy of a court  45 document.  When I say tender that, I mean the  46 Statement of Claim, the affidavit, and all the  47 exhibits thereto. 1  MR.  RUSH:  2  3  4  THE  COURT:  5  MR.  RUSH:  6  7  8  1  9  10  THE  COURT:  11  1  12  13  14  15  16  17  18  MR.  GOLDIE  19  20  THE  COURT:  21  THE  regist:  22  THE  COURT:  23  MR.  RUSH:  24  THE  COURT:  25  MR.  GOLDIE  26  THE  COURT:  27  THE  COURT:  28  MR.  GOLDIE  29  Q  30  31  32  33  34  35  36  37  38  A  39  Q  40  i  41  42  A  43  Q  44  45  46  47  A  2280  Well I would like to just look at that section before  I make a submission on it.  Maybe I'll do that after  the —  All right.  -- after the break.  My inclination is to say now  that this is not a court document, such as to come  within that section, if in fact the Court of Appeal is  disposed of it.  But I'll look at the section, maybe,  if I can reply after the afternoon break?  Yes, certainly.  You can renew that application, Mr.  Goldie.  I don't think there is any doubt that I can  take notice of documents that are filed in the court.  Really only becomes relevant if the case -- if the  case goes on where some other court may not have the  same access that I do to the records of this court.  But by all means, you let me know when you are ready  to argue.  :  Perhaps the number could be reserved for it  presently for identification.  Yes, we will reserve the next number.  RAR:  Eighty-three.  Eighty-three, yes.  I don't agree that it should be marked as an exhibit.  No, no, just reserving the number.  :  It's just reserved.  Yes.  Can I put that away?  Yes, at this point.  So the situation, if I may summarize it then, Mr.  Joseph, on the conclusion of the feast on April the  6th, was that each group there, one group consisting  of Gitksan Wet'suwet'en people, and the other  consisting of people who were members of the Carrier  Sekani Tribal Council, each group was informed of the  other's territorial claims, and that was -- that was  the end of the matter, each group then went away?  Yes.  And you knew at the time that the Carrier Sekani or --  made claims to the exclusive use of the territory they  claimed?  Yes.  Now, I gather from your evidence given earlier this  week, that there -- there was a feast at Burns Lake in  April of 1987, and certain things were done at that  feast?  Yes. 2281  1 Q   Has there been an understanding reached between the  2 two peoples, the Carrier -- the Gitksan Wet'suwet'en  3 on the one hand and the Carrier Sekani on the other,  4 as to the boundary between the two groups of peoples?  5 A  Well the Wet'suwet'en group informed the Sekani  6 Carrier where the boundaries were.  7 Q   Yes?  8 A  And they were told what area belonged to each chief.  9 Q   Yes?  10 A  And as far as I know, no one opposed it.  11 Q   Yes?  12 A   Each chief that was present had territories that were  13 supposed to have been overlapped, but I did not at the  14 time hear anyone at that feast laying claim to that  15 territory.  16 Q   You told His Lordship earlier today that the overlap  17 covered the territory of your house?  18 A   Yes.  19 Q   Do you know what band claimed the territory that is  20 encompassed in the -- your claim?  21 A  As far as I know, the Sekani Carrier were claiming.  I  22 don't know what band was claiming our territory.  23 Q   Now -- there was nobody from the Carrier Sekani side  24 who said -- got up and said, "The boundaries of the  25 claim of Mr. X on behalf of the members of his band  26 are such and so," and from that you understood where  27 the overlap was.  That didn't happen?  2 8 A   No.  29 Q   So that was -- that was a case, was it not, of the  30 Wet'suwet'en telling the Carrier Sekani where their  31 boundaries were, and the Carrier Sekani not  32 disagreeing with that?  33 A   Yes.  34 Q   Wasn't that pretty much what happened at Moricetown in  35 1986?  36 A   In Moricetown they were told of this -- each chief  37 that got up said that we had -- each chief had his own  38 hunting territory, house hunting territory, and when  39 each chief spoke, the Sekani Carrier people said that  40 they would have to think it over and that they would  41 invite us into their territory in the future.  42 Q   That was in 1986?  43 MR. RUSH:  Is he finished?  Is he finished?  44 A   Yes.  45 MR. GOLDIE:  46 Q   Yes.  47 A   That was in 1986, yes. 2282  1 Q   And they indeed did invite you in 1987?  2 A   Yes, yes.  3 Q   But the -- I suggest to you that there was nothing  4 further in 1987 than in 1986, except the two things  5 that you mentioned in your evidence, one, the Gitksan  6 Wet'suwet'en agreed -- or voluntarily made a change in  7 the northeastern boundary at Chapman Lake?  8 A   There was a bit of confusion in that area on a --  9 because of the maps that were produced by Fish and  10 Wildlife, and all the elders said that the boundary  11 had been the height of land all the time.  12 Q   I see.  And they -- but that change didn't take place  13 at that feast?  14 A   On the —  15 Q   Chapman Lake?  16 A   In Burns Lake?  17 Q   Yes.  The feast at Burns Lake, the change in the  18 boundary at Chapman Lake was made before the feast?  19 A  We told -- our people told them that -- where the  20 boundary was to the Sekani Carrier, and they agreed  21 with it.  22 Q   Well they just didn't -- they just heard you and  23 didn't say anything; is that right?  24 A  Well they agreed that that's where the boundary was.  25 Q   For Chapman Lake?  26 A   Chapman Lake, yes.  27 Q   And who stated their agreement?  28 A   It was Casimel William for one.  29 Q   I see.  Now the effect of that change was to remove  30 from the territory claim by Woos or Mr. Roy Morris, a  31 portion of his territory?  32 A  A portion of Roy's territory?  33 Q   Well let me show you why I suggest that.  I'm going to  34 show you a map which accompanied the response to the  35 interrogatory of Wah tah ke'ght, Henry Alfred.  36 THE COURT:  Wah tah ke'ght is spelt how, please?  37 MR. GOLDIE:  W-A-H-T-A-H-K-E-G-'-H-T.  38 MR. RUSH:  What's the number, Mr. Mitchell?  39 THE TRANSLATOR:  It's 197.  40 MR. GOLDIE:  41 Q   Is it the same spelling I gave?  Well that's what's on  42 the map.  Do you have any concern about that?  43 Now, this is the map that accompanied the  44 interrogatory response of Mr. Henry Alfred, and you  45 understand him to be Wah tah ke'ght.  Is that, to your  46 understanding, the territory of the House of Mr. Henry  47 Alfred? 2283  1 A   This part here?  2 Q   Yes.  The central part?  3 A   Yes.  4 Q   But on the right-hand side there is a small portion  5 that's marked Wos, W-O-S?  6 A   Yes.  7 Q   I took that to be Mr. Roy Morris, am I wrong in that?  8 A   That's Roy Morris, yes.  9 Q   Now, the -- and the eastern boundary of that is a  10 couple of lakes.  Can you tell His Lordship what the  11 name of those lakes are -- it's not a couple of lakes,  12 it is one lake.  Tell His Lordship the name of that  13 lake?  14 A   Lots'wenii.  15 Q   And is that Chapman Lake?  16 A   Yes.  17 Q   Now the adjustment in the boundary which we've been  18 talking about, pretty well followed the -- went back  19 to the boundary of Mr. Henry Alfred and pretty well  20 eliminated that little portion which is marked Wos.  21 Is that your understanding?  22 A   It went back to the height of land along here.  23 Q   I see.  The witness said "along here", he referred  24 to —  25 THE COURT:  East or west?  26 MR. GOLDIE:  He went west about an inch and a half.  2 7 THE COURT:  Yes.  28 MR. GOLDIE:  29 Q   Well I'm not going to pursue that with you right now,  30 I just want to be clear that the adjustment in the  31 boundary, wherever it was, was made before the Burns  32 Lake Feast, or was it?  33 A   I think Woos is the one that should be spoken to about  34 that.  35 Q   All right.  36 THE COURT:  But the adjustment was between Woos and Gyologyet,  37 was it.  38 MR. GOLDIE:  Pardon me, My Lord?  39 THE COURT:  The adjustment was between Woos and Gyologyet?  40 MR. GOLDIE:  No.  The adjustment was -- gave land to the Carrier  41 Sekani.  42 THE COURT:  Oh.  So the boundary was moved to the west?  43 MR. GOLDIE:  Yes.  And the exact extent of that will become a  44 little clearer later on.  45 THE COURT:  Well, am I reading this wrong then?  The land that  46 was given to the Carrier Sekani came from Gyologyet?  47 MR. GOLDIE:  No.  My understanding, My Lord — Your Lordship has 2284  1 Chapman Lake?  2 THE COURT:  Yes, I think I have.  3 MR. GOLDIE:  My understanding is that the boundary moved west  4 from Chapman Lake, it did not move into Gylogyet.  5 THE COURT:  Well what's confusing me is — I think that this is  6 what's confusing me, or at least it could be something  7 else, is Gyologyet is written in large print at the  8 bottom here, and I take that to be an indication of  9 Gyologyet's territory which seems to include Thomas --  10 MR. GOLDIE:  Yes.  But there are two parcels of Woos territory,  11 and immediately to the --  12 THE COURT:  Oh, I see, I see.  So it's the Woos' southern  13 territory that's given up?  14 MR. GOLDIE:  No, it's the northern one, the one that is  15 immediately adjacent to Chapman Lake.  16 THE COURT:  That's the northern one, is it?  17 MR. GOLDIE:  Yes.  18 THE COURT:  Oh, I see two Wooses on this map too.  19 MR. GOLDIE:  Yes.  Well it's the northern Woos.  20 THE COURT:  Those two parcels are the northern Woos?  21 MR. GOLDIE:  Yes, I think so.  But we are looking only at the  22 north half of that one.  23 THE COURT:  All right.  24 MR. GOLDIE:  Now my understanding is that there is a portion of  25 Mr. Henry Alfred's territory which was also affected,  26 but I -- in light of Mr. Joseph's last answer, I won't  27 ask him about that.  28 THE COURT:  All right.  Just a moment, please.  29 A  Mr. Goldie, may I say something on the boundaries of  30 Woos?  31 MR. GOLDIE:  32 Q   I beg your pardon?  33 A   The boundaries we are talking about, Chapman Lake,  34 Woos' boundary.  35 Q   That is Woos' boundary?  36 A   Yes.  The boundary is there but before the Sekani  37 Carrier or before the Gitksan Wet'suwet'en or any  38 D.I.A. or Fish and Wildlife people became involved,  39 that was all Gitdumden territory, north and south.  40 Except that the northern part belonged to the Babine  41 Gitdumden and the southern part belonged to the  42 Wet'suwet'en Gitdumden.  43 MR. GOLDIE:  Did Your Lordship follow that?  4 4 THE COURT:  No.  45 MR. GOLDIE:  46 Q   You tell me if I'm wrong now, Mr. Joseph, and that is  47 that the Gitdumden clan -- 2285  1 A   Yes.  2 Q   -- owned all of that territory?  3 A   Yes.  4 Q   But some of the Gitdumden were Babine?  5 A   Babines.  6 Q   And others were Wet'suwet'en?  7 A  Wet'suwet'en, yes.  8 Q   Yes.  And the northern part was owned by the Babine?  9 A   Gitdumden.  10 Q   Gitdumden?  11 A   Yes.  And some were very closely related.  12 Q   Yes.  Now today the -- what you would call the Babine  13 Gitdumden are part of the Carrier Sekani?  14 A   Sekani, yes.  15 Q   Now I have one further question before I have a  16 submission to make, My Lord.  Is it part of the  17 Wet'suwet'en law that upon the settlement of a  18 dispute, eagle down is produced?  19 A   Yes.  20 Q   Was there any eagle down produced at the conclusion of  21 the Burns Lake meeting or feast?  22 A   There was eagle down produced but it wasn't part of  23 that ceremony.  There was some other business took  24 place.  25 Q   I see.  So it was in relation to the settlement of  26 another dispute altogether?  27 A   Yes, yes.  28 MR. GOLDIE:  My Lord, I -- as you know, I made a submission to  29 Your Lordship about the production of additional  30 documents, and my friend had sent to us in his letter  31 of September 3rd, notes that Mr. Joseph had made, but  32 I don't want to complete my cross-examination at this  33 point.  I'm ready to go on to another point, but I  34 don't want to complete my cross-examination on this  35 point until I am advised by my friend of his -- of the  36 production of documents for which he claimed privilege  37 earlier.  38 And of course I also want production of the map  39 which is -- was on the wall at the Moricetown meeting,  40 and which my friend, Mr. Grant, tells me is on the  41 way.  42 THE COURT:  Yes, all right.  Well then you are going to now go  43 on to something else?  44 MR. GOLDIE:  I'm going to go onto something else.  45 THE COURT:  I'll take the afternoon adjournment, then.  Before I  46 do that, can counsel tell me if I picked Chapman Lake  47 out correctly on this map, because everybody has been 2286  1 talking about -- I've drawn an arrow to what I  2 think -- I have taken Chapman Lake to be, and if  3 that's right, if I can find out now?  4 MR. GOLDIE:  Well, I'm dismayed to say I see no arrow.  5 THE COURT:  The very bottom.  6 MR. GOLDIE:  I'm going to put an arrow with the consent of my  7 friends.  8 THE COURT:  Yes.  9 MR. GOLDIE:  Mr. Grant has been helpful and put a red asterisk  10 beside my blue arrow.  11 THE COURT:  Thank you.  Oh, yes.  Well now can I ask, the  12 boundary that is now shown alongside what I take to be  13 the west boundary of Chapman Lake, is that the settled  14 boundary that had been moved west?  15 MR. GOLDIE:  Yes.  When I say —  16 MR. RUSH:  No, no, no.  17 MR. GOLDIE:  No.  It's -- I was just about to correct myself.  18 THE COURT:  That's the boundary that has been moved east, I'm  19 sorry.  20 MR. GOLDIE:  This map is before there was any alteration in that  21 boundary.  22 THE COURT:  I see.  23 MR. GOLDIE:  That boundary which you see has now moved west, the  24 witness thought about two inches on this map.  25 MR. RUSH:  Well I thought he said an inch and a half.  26 THE COURT:  Well, to the height of land.  27 MR. RUSH:  Height of land, whatever.  28 MR. GOLDIE:  You are quite right, I made an estimate.  29 THE COURT:  To height of land.  30 MR. GOLDIE:  It's about a hundred millimetres.  31 THE COURT:  All right.  32 MR. GOLDIE:  But anyway, the nature of that change will be the  33 subject of some other questions which will not depend  34 upon Mr. Joseph's concern about not speaking for Mr.  35 Morris.  36 THE COURT:  All right.  There is one other thing I wanted to  37 make sure.  There is no arrow on this map.  I take it  38 north is at the top?  39 MR. RUSH:  There is an arrow.  4 0 THE COURT:  Oh yes, I see it.  41 MR. GOLDIE:  Surprisingly it's in the conventional place.  42 THE COURT:  Yes.  And can somebody tell me where Babine Lake is  43 in connection with Chapman Lake?  Further to the east?  44 MR. RUSH:  Maybe the witness could help.  45 MR. GOLDIE:  46 Q   Mr. Joseph, can you say in what direction Babine Lake  47 is from Chapman Lake? 2287  1 A   No.  2 MR. GOLDIE:  We'll see if we can find that out during the break.  3 THE COURT:  All right, thank you.  We'll take the afternoon  4 break.  5 THE REGISTRAR:  Order in court.  Court stands adjourned for the  6 afternoon adjournment.  7  8 (PROCEEDINGS ADJOURNED AT 3:05 p.m.)  9  10 I hereby certify the foregoing to be  11 a true and accurate transcript of the  12 proceedings herein transcribed to the  13 best of my skill and ability.  14  15  16  17  18  19 Toni Kerekes,  20 O.R., R.P.R.  21 United Reporting Services Ltd.  22  23 (Proceedings Resumed at 3:25 p.m.)  24 THE COURT:  Mr. Goldie?  25 MR. GOLDIE:  I am not sure whether my friend is prepared to deal  26 with my submission that the affidavit and statement of  27 claim is -- I am entitled to file it in this  28 proceeding.  29 MR. RUSH:  Yes, I am prepared to deal with it.  30 There are two points to be made, the first is that  31 section 29, relied upon by my friend, deals with  32 evidence in a proceeding so it wouldn't deal with the  33 pleadings.  So the only issue is, in my view, is  34 whether or not the affidavit, which purports to be  35 evidence in a proceeding, falls within the section.  36 And the section, in its opening words, says, "Evidence  37 of any proceeding or record whatsoever in or before  38 any court in the U. K. or the Supreme Court or Federal  39 Courts of Canada..."  and so on, "...may be given in  40 any action or proceeding by in exemplification or a  41 certified copy."  And I take the position here that  42 the proceedings having been struck out are proceedings  43 which, in my submission, are null at the beginning and  44 they are in the proceedings which are really before  45 the Supreme Court of British Columbia.  They had a  46 life, it was a short life, it was ended by the British  47 Columbia Court of Appeal, and I say in those 2288  1 circumstances that affidavit is not an affidavit which  2 is evidence in a proceeding that is the proceeding  3 that was before the Supreme Court and then went to the  4 Court of Appeal, any further once the Court of Appeal  5 judgment has been rendered.  6 And I take that from a reading of section 29 and  7 what we know of history of the process in the lower  8 courts to be.  I think the clear intent of the section  9 is to permit transcripts, such as those that we  10 receive on a daily basis today, and other such  11 affidavit material and so on that comes before the  12 court in a live proceeding, one that has some  13 legitimacy, if you will, before the courts, to be  14 introduced in subsequent proceedings before those  15 courts or other courts.  And I say here that that  16 affidavit doesn't fall into that category.  If my  17 friend wishes to prove the affidavit, there is a way  18 to do that, and that is to call the affiant.  19 THE COURT:  The section reads "evidence in a proceeding"?  20 MR. RUSH:  No, no, evidence of any proceeding or record  21 whatsoever.  And I take that to be evidence of the --  22 taken in the proceeding.  Or rendered or submitted in  23 the proceeding.  And that's why I say the affidavit  24 falls into that category.  25 THE COURT:  Well, if the statement of claim and the affidavit  26 were admitted they would only be admitted as proof of  27 the fact that that document was filed in that action.  28 It wouldn't prove the truth of anything in it.  29 MR. RUSH:  Well, I am not so sure that that's true.  I don't  30 know why the section would be there if it won't  31 facilitate the admissibility of previously sworn  32 testimony.  33 THE COURT:  Well, just speaking perhaps foolishly, but out loud,  34 I could see that it might be a useful thing to prove  35 what was pleaded, for example, in support of a plea  36 of -- in support of an estoppel by way of res judicata  37 or something of that kind.  It wouldn't prove  38 anything, it would prove that that issue was before  39 the court.  40 MR. RUSH:  If your lordship is right in the interpretation of  41 that section and the proposed interpretation that I  42 advance -- that I am wrong, then what's admissible is  43 the pleadings and not the affidavit and, in my  4 4 submission, I --  45 THE COURT:  I am sorry but I thought the section said "evidence  46 of any proceeding"?  47 MR. RUSH:  Right, it does. 1  THE  COURT  2  MR.  RUSH:  3  THE  COURT  4  5  6  MR.  RUSH:  7  8  THE  COURT  9  MR.  RUSH:  10  THE  COURT  11  12  13  14  MR.  RUSH:  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  THE  COURT  31  32  MR.  GOLDI  33  THE  COURT  34  MR.  RUSH:  35  36  THE  COURT  37  38  39  MR.  GOLDI  40  41  42  43  44  45  46  47  THE  COURT  2289  :  Isn't an affidavit a --  Evidence of a proceeding?  No.  :  There is a definition in the rules of what a  proceeding is.  I am sure no one has a copy of the  rules here.  There is a definition of a legal proceeding in the  Evidence Act.  :  What does it say?  Unfortunately, I have only the photocopy of it.  :  Well, I am going to take the famous side door here,  I am going to reserve on this and I am going to look  it up overnight.  I can look up the two definitions  and either of you can make submissions tomorrow.  Just one other point I would like to make, and it has  to do with an unrelated matter but related to the map  that was introduced at the -- to Mr. Joseph, just  prior to the afternoon break, and I interceded just  prior to the break about the terminology of a settled  boundary that your lordship used, and I know that you  perhaps may not have been using that description of a  boundary in any formal way, but it did provoke a  certain response from me, and I just wanted to draw to  your attention what was being produced to the witness  was a draft copy of a document which was designed or,  at least, the black outline which appeared to be the  purpose of the document.  And, there is -- there was  no indication from this witness or from the document,  that there was anything that was settled about it.  So I —  :  Well, this document was attached to the  interrogatory of --  E:  Mr. Henry Alfred.  :  Yes.  That's right.  And it is the bold black line which is  the subject matter of that interrogatory.  :  All right.  Well, I think the document carries with  it, on its face, that infirmity, which I had noticed  before, and which I will keep in mind.  E:  Well, of course all of the documents that we got in  response to the interrogatories had "draft" stamped on  them but they -- I was cross-examining on the evidence  that Mr. Joseph gave of a change in the boundary.  That was introduced in his evidence in chief.  And  that's all I was testing.  Now, it's -- if my friend  has a map, or has something which will prove that with  certainty, I would be happy to work with that.  :  At the moment it seems to me that it's no higher 1  2  3  4  MR.  GOLDI  5  THE  COURT  6  7  8  MR.  GOLDI  9  10  11  12  13  14  15  16  17  THE  COURT  18  19  20  21  MR.  GOLDI  22  THE  COURT  23  MR.  GOLDI  24  MR.  RUSH:  25  THE  COURT  26  A  27  THE  COURT  28  29  A.  30  THE  COURT  31  32  A  33  THE  COURT  34  35  36  MR.  GOLDI  37  38  THE  COURT  39  MR.  GOLDI  40  41  42  43  44  45  46  47  2290  than this, that at one point a map was put forward as  a draft in connection with an answer to an  interrogatory.  E:  Yes.  :  And we have some evidence about it, explaining it  and qualifying it, and adding and subtracting from the  areas shown.  E:  Well, we start with evidence stating there was a  change in the boundary, that's what we start with.  And everything relating to that map, whether it's a  draft or whatever it is, is in explanation of that  evidence.  I don't put forward the map in itself, as  any evidence of change, I am simply trying to obtain  the assistance of the witness of some pictorial  representation of it.  But I think we can do better  than that.  :  May I ask the witness if when I drove from Smithers  through back roads to Babine Lake, I particularly -- I  think it's called Smithers Landing or is it Skeena  Landing?  E:  Smithers Landing.  :  Did I skirt the south end of Chapman Lake?  E:  Babine --  Is the witness being asked the question?  :  Yes.  I don't remember but it goes by the lake there.  :  The highway goes by the south end of Chapman Lake,  and Babine would be a few miles beyond that?  Yes.  :  So on this map, Mr. Alfred's map, Babine Lake would  be running north and south just off this map?  Yes.  : That's what I thought. All right. If anyone can  disagree with that I would be glad to be corrected.  That was my recollection.  E:  With my mind uncluttered by facts in this regard I  feel free to comment but I am not going to.  :  Thank you.  E:   My lord, with respect to my friend's submission on  section 29, your lordship will be looking at it, but  the wording in it is, in my submission, quite clear,  it's evidence of any proceeding or record whatsoever  in or before any court.  So that the draftsman covered  off, in my submission, everything that is accepted by  a court of law and that which becomes part of a  record.  This, these documents didn't suddenly suffer  a revisionist fate.  They are still in the registry. 2291  1 They are still part of the file of that action and the  2 Court of Appeal made it very clear that they were not  3 passing on the cause of action, they were simply  4 saying that that cause of action was inappropriate to  5 be tried in this particular case.  And I can supply  6 your lordship with the reasons on that, if your  7 lordship is --  8 THE COURT:  The section of the Evidence Act is 29?  9 MR. GOLDIE:  Yes.  10 THE COURT:  Thank you.  11 MR. GOLDIE:  I have one other question, and I am sorry to say it  12 involves another map but it is one that relates to a  13 territory that Mr. Joseph has spoken to, under tab 6  14 of the book of documents, is an extract from the  15 affidavit of Madeek.  16 THE COURT:  I am going to stop you again, Mr. Goldie.  We  17 haven't done anything with this draft map of Henry  18 Alfred.  What do you want to do about that?  19 MR. GOLDIE:  Could we have that marked for identification, my  20 lord?  And when I say for identification, I will -- I  21 can either have it spoken to when Mr. Henry Alfred is  22 on the stand or we can file the extract of his  23 interrogatory response which verifies it.  24 THE COURT:  That will be 83 for identification.  25 MR. GOLDIE:  83 is reserved at the present time for the Aluminum  26 Company proceedings.  So it would be 84 for  27 identification.  28  29 (EXHIBIT 84 FOR IDENTIFICATION:  HENRY ALFRED DRAFT MAP)  30  31 MR. GOLDIE:  32 Q   Mr. Joseph, I am going to direct your attention to tab  33 6 in the book of documents, and that, my lord, is the  34 affidavit of Madeek, known as George Naziel, as one of  35 the plaintiffs, and attached to it is the answer to  36 question 59(c), what are the boundaries of your  37 house's territory (see schedule "B" attached to these  38 answers).  I also have an another a small area towards  39 Babine Lake called Papasali."  That was Mr. Naziel's  40 affidavit of 31st of July, 1986.  And I think you told  41 me earlier this afternoon that you filed the second  42 affidavit of Madeek, he being unable to do so or  43 having died?  44 A   Yes.  45 Q   That's correct, is it not?  46 A   Yes.  47 Q   Now, the map that is attached to there is -- what you 2292  have in front of you is a map which shows in its  centre a solid black line, and that's what I will call  the northern territory of Madeek; is that right?  Eastern is perhaps a better way of putting it.  This is Madeek's territory at Broman lake?  At Broman Lake, yes.  Yes.  Thank you.  And Broman Lake, can you -- it's  identified with an Indian name, Wet'suwet'en name?  C'eeggez.  On the map it's spelled G-y but I think we would agree  it's the same one.  And the Broman Lake Reserve is on that lake, it's  not marked but that's -- you told us that it is on the  shore of the lake.  While the witness is looking at the map, my lord, I  point out that under tab two, Exhibit 81 for  identification, the location of the Broman Lake Indian  Reservation is plan 12, lot 3506 and does your  lordship see lot 3506?  First I should ask your  lordship if you have located Broman Lake?  Yes.   3506?  Yes.  I, I am not asking you to identify the lot  number, Mr. Joseph, it's sufficient for me if you  confirm that your recollection of the location of the  Broman Lake Band, that their reserve is on the shore  of the lake, can you do that?  Yes.  What is the little village towards the top left  corner?  And is that the highway that runs diagonally  across?  I am instructed that's the highway.  But I will  33 just -- your lordship refers to a village at the  34 top —  35 THE COURT:  Just before you go off the page on the left hand  36 side.  37 MR. GOLDIE:  There is a —  38 THE COURT:  Looks like a subdivision.  39 MR. GOLDIE:  I couldn't answer your lordship.  Mr. Mackenzie,  4 0 who is --  41 THE COURT:  It's incredibly helpful to get some landmark that  42 you can tie yourself into, you have some idea what  43 part of the world we are talking about.  44 MR. GOLDIE:  Forest Dale —  45 THE COURT:  I see, Forest Dale.  All right.  That's helpful.  46 MR. GOLDIE:  47 Q   Now, one other question, Mr. Joseph, the boundary of  1  2  3  4  5  A  6  Q  7  A  8  Q  9  10  A  11  Q  12  13  14  15  16  17  18  19  20  21  22  THE  COURT:  23  MR.  GOLDIE  24  25  26  27  28  A  29  THE  COURT:  30  31  32  MR.  GOLDIE 2293  1 Madeek in the upper right or northeast, is  2 Carrier-Sekani, the people are Carrier-Sekani beyond  3 Madeek's land there?  4 A   Yes.  5 Q   Right.  I would ask that extract from Mr. Naziel's  6 interrogatories and the draft map that is verified by  7 that excerpt, be marked as the next exhibit, my lord.  8 THE COURT:  Yes.  That will be 85.  9  10 (EXHIBIT 85:  EXTRACT FROM INTERROGATORIES AND MAP)  11  12 MR. GOLDIE:  13 Q   Mr. Joseph, it's my understanding that you have been  14 working on land claims in general, and on the  15 boundaries of houses, including your own, but not  16 confined to your own, since about 1981?  17 A   Yes.  18 Q   But the question of land claims, you have indicated in  19 your evidence, has been around for a much longer time  20 than that?  21 A   Yes.  22 Q   Can you tell his lordship when your first recollection  23 of hearing the question of land claims?  24 A   The first recollection that I have is I was -- I first  25 know, started to understand things and ways on a  26 reserve, and at Hagwilget, and I didn't -- that's when  27 I first wondered about it, I asked my grandparents, is  28 this the whole of the world or whatever it is, what I  29 see here, I asked my grandparents.  They told me that  30 no, it isn't, we have land further away and some names  31 that they give me sounded familiar because I heard it  32 before.  And then they told me that we haven't always  33 been in this little place.  And I asked them how that  34 was.  They told me that before reserves or white men,  35 reserves were established, we lived in our own  36 territories and we hunted and trapped, and gathered  37 material in our territories.  38 Q   Well, I wanted to make sure, even if I am interrupting  39 you, and if I am I apologize, but I wanted to be sure  40 I understood your age at the time you are telling us  41 this?  42 A   I was around five, six years old.  43 Q   Thank you.  Now, if you have anything further to add,  44 please do so.  45 A   Yes.  I was then, later on in the years, I went out in  46 the territory and saw, was also explained to me by my  47 aunt where our territories was.  Then my uncle Thomas 2294  1 would visit us and he would say the same thing.  And  2 as I grew older I attended feasts, and I knew to who  3 the chiefs were, I knew their names, the names were  4 always mentioned by my grandparents and they always  5 visited us at Hagwilget.  And they spoke of the land,  6 some of them had run-ins with the Fish and Wildlife  7 people and then I knew that the -- I knew a Woos that  8 was two -- not Ron Woos, but the two previous Woos, I  9 knew them and I also knew the Smogelgem, before  10 Leonard George, and I think there was three of them  11 that I know.  And all the other high chiefs that had  12 been involved in feasts and the ones that every -- not  13 every, but every high chief, there is three high  14 chiefs of a house of -- clans I mean, always got up  15 and spoke of the land.  And they always said how we  16 have been deprived of the use of our territory.  And  17 they always, one in particular, Woos, always said that  18 he always brought out a piece of paper of some kind  19 and said here is the drawing of my territory.  He drew  20 it himself.  Just a few lines and said that this is  21 what I am talking about.  This is the way our land is  22 described to me, to us now.  So I am -- I draw my own  23 territory on this piece of paper.  So, he always said  24 that we have to go to the government some day and  25 present our case on why we have been deprived of the  26 use, deprived of our land, some of our people have  27 lost their homes, and he said that he was willing to  28 start a claim.  But he was not, as I said before, he  29 was not educated.  At that time, all of the  30 Wet'suwet'en chiefs that I know were never in school.  31 But they have always addressed this land issue.  32 Q   The person who was not educated and who said he was  33 ready to start a claim, was that one of the earlier  34 Woos?  35 A   Yes.  36 Q   Is it fair to say then --  37 MR. RUSH:  Is the witness finished his answer?  38 MR. GOLDIE:  Yes, he did.  He said yes in answer to my question.  39 MR. RUSH:  Did you finish your answer?  40 MR. GOLDIE:  Excuse me, he did.  41 MR. RUSH:  I didn't feel he did and I was writing and I didn't  42 see the exchange.  43 A   You were asking me about Woos and I said yes.  44 MR. GOLDIE:  Yes.  45 MR. RUSH:  Well, yes —  46 THE COURT:  It's obvious that there is a possibility that you  47 are both right and both wrong.  Certainly the witness 2295  1 said yes, when he was asked the question about which  2 Woos of which he was speaking.  It is possible that he  3 had something else to say in addition to a somewhat  4 long answer he has already given.  I think the witness  5 should be given an opportunity, Mr. Goldie, to add to  6 what he said before, if he wishes to do so.  7 MR. GOLDIE:  If that's what the problem is, certainly.  8 THE COURT:  It's possible that he has something further to say.  9 Go ahead.  10 A   This Woos I am speaking of is Matthew Sam.  11 MR. GOLDIE:  12 Q   Matthew Sam?  13 A   Yes.  And the Woos prior to Matthew Sam, before  14 Matthew Sam was David Francis, known as Tyee Lake  15 David.  16 THE COURT:  What was his full name, David Sam?  17 A   David Francis.  And I also heard him speak in feasts  18 and his brother, Jean Baptist, was another one that  19 always spoke at feasts and they all expressed the same  20 thing, that they were put in reserves against their  21 will, and that they wanted to deal with our land.  Why  22 were the -- why were they driven off their land?  And  23 the same thing with Hag wil negh, a chief from the  24 Laksilyu clan.  2 5 THE COURT:  I didn't get that name.  26 THE TRANSLATOR:  Number 29 on the plaintiffs' list.  27 MR. GOLDIE:  2 8 Q   Now Matthew Sam was Woos when you became Gisdaywa?  29 A   Yes.  30 Q   That was in 1974?  31 A   Yes.  32 Q   Is it fair to say, Mr. Joseph, that since the age of  33 your earliest recollections, you have grown up in an  34 atmosphere of land claims?  35 A   Yes.  36 Q   And in the knowledge that some day a claim would be  37 made against the government?  38 A   Yes.  39 Q   Now, did you have anything to do with the external  4 0 boundary of the land claims map which was given to the  41 federal government in 1977, do you remember that?  Or  42 perhaps you don't.  43 A   I remember the --  44 Q   I am going to show you a document which Mr. Sterritt  45 identified as having been prepared by him and which  46 was marked Exhibit 6 on his examination for discovery,  47 I believe.  Please bear in mind that this is a 2296  1 photograph or a Xerox copy of the document in  2 question, but it was stated to have been presented to  3 the government of Canada, the Honourable Hugh  4 Faulkner, the Minister of Indian Affairs, at Kispiox,  5 November 7th, 1977.  6 THE COURT:  November?  7 MR. GOLDIE:  7th, 1977.  8 Q   Do you have any recollection of that occasion or were  9 you present at that occasion?  10 A   Yes.  11 Q   You were present?  12 A   Yes.  13 Q   And do you recall that map being given to Mr.  14 Faulkner?  15 A   Yes.  16 Q   Did you have anything to do with the preparation of  17 that map?  18 A   I was asked about where Gisdaywa's territory was, and  19 I gave some information on it.  20 Q   At that time, then, 1977, the only contribution that  21 you made with respect to this map was to tell who, Mr.  22 Sterritt?  23 A   Yes.  24 Q   About where where your territory was?  25 A   Yes.  26 Q   You didn't have any maps at that time, did you?  27 A   No.  28 Q   What did you do, simply describe to him where Owen  29 Lake was and --  30 A   Yes.  31 MR. GOLDIE:  I don't think I need to have that marked now, my  32 lord.  It's going to come in at a later time.  33 THE COURT:  Shall I return it to you?  34 MR. GOLDIE:  Yes.  Thank you.  35 Q   The sources of information that you had when Mr.  36 Sterritt asked you about the territory of Gisdaywa in  37 1977, were what you had heard at the feasts?  38 A   Yes.  39 Q   And you have identified, and it's under tab five of  40 the document book, marked as exhibit, as part of  41 Exhibit 79, the map that accompanied your response to  42 the interrogatories in August of 1986.  And you said  43 that, you said at that time, that the approximate  44 boundaries of your territory are included in your --  45 are included in the map which is set out in Schedule  46 "B", except for your fishing sites, and I want to get  47 a better idea of the background to that map.  Who did 1  2  3  A  4  Q  5  A  6  Q  7  A   ]  8  Q  9  10  A  11  Q  12  13  14  15  16  THE  COURT:  17  MR.  GOLDIE  18  THE  COURT:  19  MR.  GOLDIE  20  THE  COURT:  21  MR.  GOLDIE  22  Q  23  24  25  A  26  Q  27  A  28  Q  29  i  30  i  31  32  33  34  35  A  36  Q  37  38  39  40  A  41  Q  42  43  A  44  Q  45  A  46  47  Q  2297  you -- you didn't draw the map that we are talking  about, did you?  Of the Gisdaywa territory?  Yes.  No, I didn't draw it.  Who did?  Marvin George.  And you gave him the kind of information that you gave  to Mr. Sterritt?  Yes.  Now, in this Exhibit 62 in your evidence in chief, if  I recall it correctly, you identified a map dated May  12th as representing the boundaries of your territory,  and in your evidence in chief you were taken through  that map, and --  I am sorry, this is exhibit number --  :  62.  It's part of the booklet.  Yes.  Thank you.  :  I think it's under tab 2 of 62.  I have it.  Thank you.  Now, since 1981, when you became a full-time land  researcher, is my understanding correct in that  regard?  Yes.  You have become familiar with maps and you use maps?  Yes.  The -- and you have gone over this map that Marvin  George drew and I am assuming that Marvin George also  drew the map that's dated May 12th, 1987, you have  gone over that and you have tried to picture the  ground when you looked at that map and you are  satisfied that those are the boundaries of your  territory?  Yes.  And you did the same thing when Marvin George produced  the draft that is attached to your interrogatory  response, you tried to picture it in your mind's  eye --  Yes.  And you said that it was the boundaries of your  territory?  Yes.  Have you flown over your territory?  I have flown over the part, the -- along the Morice  River, Wet'sen kwe, Biiwenii, flown over that area.  You say over the Morice River, what did you do, did 1  2  A  3  Q  4  5  6  A  7  Q  8  9  10  A  11  Q  12  13  A  14  Q  15  A  16  Q  17  18  A  19  Q  20  21  A  22  23  Q  24  25  A  26  Q  27  A  28  Q  29  A  30  31  Q  32  33  34  A  35  Q  36  37  38  39  40  A  41  42  43  44  45  46  47  2298  you follow the Morice River down?  Yes.  So, you -- what direction were you flying in, were you  flying south or north when you were, did you come down  from the Bulkley?  Yes.  So you would follow the Morice River down and into  your territory and then along until it went out of  your territory?  Yes.  So as you flew down, did you recognize where Houston  Tommy Creek came into the Morice?  Yes.  Now, was that before August, 1986?  Yes.  Have you ever examined aerial photographs of the  territory?  Not of Houston Tommy Creek.  I don't mean of Houston Tommy Creek but the territory  generally?  Oh, the territory.  Yes, I have seen aerial  photographs.  And, a pretty easily identified feature in those  photographs would be the Morice River?  Yes.  And Owen Lake?  Yes.  And Houston Tommy Creek?  I don't know about Houston Tommy Creek but it's -- the  major rivers are easy to identify.  But anyway, when you came down in the helicopter or  the plane, you were in, there is no doubt that you  were able to identify that?  Yes.  Now the boundaries of your territory shown on these  two maps -- when I talk about these two, I am now  talking about the map of May 12th, 1987, and the map  that was attached to your interrogatory responses of  August, 1986, are different; can you tell me why?  It's one of the differences was when we told Marvin to  draw the boundary, showed him where to draw the  boundary, but one area was left out.  He followed  Houston Tommy Creek for a ways, and then swung back up  north, but left out an area, a plateau that was not  used for trapping.  The only thing it was used for was  for hunting goats or cariboo.  It was hardly any trees  on it.  But that included, it was included in 1  2  Q  3  A  4  5  6  7  8  Q  9  10  11  A  12  Q  13  14  A  15  Q  16  A  17  18  Q  19  20  21  22  A  23  Q  24  A  25  Q  26  27  A  28  Q  29  30  31  A  32  Q  33  34  35  36  37  A  38  Q  39  40  41  A  42  43  44  45  46  Q  47  A  2299  Gisdaywa's territory.  How do you know that?  Because of my uncles and his sons have gone up in  there and they hunted in the area and Andrew George  and myself checked the map and that's the one thing we  noticed that it was left out, but it was supposed to  have been in.  So, between August of 1986 and May of 1987, you and  Andrew George decided that that plateau should be in  Gisdaywa's territory instead of Madeek's?  Yes.  Because before that, it was in the territory of  Madeek?  Yes.  Now, did you consult Mr. George Naziel about that?  No, George was a very sick person at that time and one  can't talk to him.  All right.  But the effect of it is to change the  boundary between your territory and that of Madeek  from Houston Tommy Creek to a place up a line up on a  plateau?  Yes.  Is that right?  Yes.  Houston Tommy Creek is a very obvious boundary line,  is it not?  Yes.  I think you have already indicated that a -- quite  often a river or an stream is a place where one  territory ends and another begins?  Yes.  And the sole basis for your changing the boundary  line, which reduced the territory of Madeek and  increased the territory of Gisdaywa, is the belief  that you and Andrew George and your uncle and the late  Thomas George, hunted in that territory?  Yes.  You are not in a position to know whether Mr. Naziel,  or members of his house, also hunted in that  territory?  It's an internal boundary between Madeek and Gisdaywa.  They both could have hunted in the territory because  it's -- that boundary in the mountains and the  mountains are shared by three Gitdumden chiefs.  The  mountain range I am talking about.  You are referring to Smogelgem?  No. 1  Q  2  A  3  Q  4  5  A  6  Q  7  8  A  9  Q  10  A  11  Q  12  A  13  14  Q  15  A  16  Q  17  18  19  A  20  21  Q  22  A  23  Q  24  A  25  Q  26  27  28  29  30  31  A  32  Q  33  A  34  Q  35  36  A  37  Q  38  39  40  41  A  42  43  Q  44  A  45  Q  46  A  47  Q  2300  Sorry.  Go ahead.  Madeek, Gisdaywa, and Woos.  Well, I see adjoining territory of Madeek and of  course there is your territory, but I --  Woos would be further to the west.  I see.  Yes.  I follow you.  It barely touches your  territory?  Yes.  And you say that's mountain territory that would be --  Just the mountain or the mountain range.  Shared by the three chiefs?  Yes.  And the surrounding trapping territories are  someone else.  And the members of their houses?  Yes.  Are there any features on the ground which would tell  somebody that he was passing from Madeek's territory  into your territory where the boundary line now is?  The boundary between Madeek and Gisdaywa would be the  height of land on Houston Tommy Creek.  Above Houston Tommy Creek?  Yes.  I thought that was a plateau up there?  Where it starts down, the boundary starts there.  I see.  All right.  We are -- we were given two maps  dated May 12, 1987, one of them had the boundary of  Houston Tommy Creek and one the boundary as it is now  shown in the map that's under tab 2 of Exhibit 62.  I  take it the -- when was the correction of the boundary  made?  The correction was made on the second map.  Which has got the same date on it, but --  Yes.  Can you recall, tell his lordship how long before May  12th that change was made?  It was made, the change was made on May 12th.  Well, I appreciate that, but what I am asking you to  do to assist me is to give me a date, presumably  between August, 1986 and May 12th, 1987, when the  actual boundary change was made.  I can't give you the date but by the second map, is --  you say May 12th, 1987?  Yes.  It was made, the change was made prior to that.  All right.  That's the best you can do?  Yes.  Now, in all of this there was no change in the songs 1  2  3  4  5  6  7  A  8  Q  9  THE  COURT  10  11  12  13  14  A  15  THE  COURT  16  MR.  RUSH:  17  18  19  THE  COURT  20  21  MR.  RUSH:  22  23  24  THE  COURT  25  26  MR.  RUSH:  27  28  29  THE  COURT  30  31  MR.  RUSH:  32  33  THE  COURT  34  MR.  RUSH:  35  36  37  THE  COURT  38  MR.  RUSH:  39  40  41  THE  COURT  42  43  MR.  RUSH:  44  45  THE  COURT  46  47  2301  of your house or clan, the only -- let me be sure that  I don't mislead you, I understand from your evidence  that that change was made purely on the basis of  the -- your knowledge and the knowledge of Andrew  George, that the late Thomas George had hunted in that  territory?  And his brothers and his uncle.  All right.  :  Mr. Goldie, if you are leaving that can I ask,  Exhibit 62 shows quite a large river flowing  diagonally from the top left corner down past Houston  and into the territory and I take that to be the  Bulkley River, is it?  From the east?  :  Well, that's the way it's flowing, yes.  A portion of that, my lord.  You may recall the  testimony that both the Morice River and the Bulkley  River were identified as Wet'sen Kwe.  :  That's what got me -- if it was marked, I wouldn't  know what Wet'sen Kwe is.  Wet'sen Kwe, means at one juncture the Bulkley and  then when the Morice leaves the Bulkley is also  Wet'sen Kwe.  :  Where does the Morice run into the Bulkley or where  does --  It's in the upper right hand quadrant of the map,  with the north sign facing up.  And you see Wet'sen  Kwe, it's approximately at the E.  :  Well, I am sorry, but I have to look at this map  with the writing --  In that case it would be in the upper left hand  quadrant.  :  That's where I started.  New, look at the word Smogelgem, then you move  directly to the right of Smogelgem and slightly up,  there is an E there.  :  Yes.  And the confluence of the Morice and the Bulkley is  just below that point where the dotted line meets a  vague, a somewhat grayer double line.  :  So from Houston Tommy cabin site to that E in  Wet'sen Kwe, that's still the Morice River there?  That's right.  And the Morice River then follows down  past Houston Tommy and takes a right turn.  :  It's marked in English down there and I can follow  it.  But the Bulkley is coming into the Morice then at  this point, you have marked beside the letter E. 2302  1 MR. RUSH:  Yes.  And the Bulkley takes a sweep coming in from  2 the left and takes a turn and goes off in the upper  3 left-hand --  4 THE COURT:  All right.  Thank you.  5 Sorry, Mr. Goldie.  6 MR. GOLDIE:  My lord, I have been handed a note and I better  7 deal with it now.  And this relates to the evidence of  8 Madeline Alfred, I am instructed that a problem has  9 arisen with respect to the interpreter.  We asked the  10 plaintiffs to select another interpreter for Madeline  11 Alfred and my recollection is that the one they  12 proposed was a member of both the same clan and house  13 as Madeline.  I may be wrong.  But that's my  14 recollection.  At any rate, they are not prepared to  15 do so.  And Mr. Plant, who will be dealing with  16 Madeline Alfred's evidence would like to deal with  17 this matter as soon as possible and he asks that that  18 be done tomorrow morning at the outset.  19 THE COURT:  That's satisfactory.  Is that convenient to Mr. —  20 MR. RUSH:  I don't object to that.  21 THE COURT:  All right.  22 MR. GOLDIE:  I just want to make sure that I have got these  23 marked, my lord.  24 THE COURT:  There is one other thing I wonder if I can be shown  25 on this map, Exhibit 62, where this plateau is.  I  26 haven't been able to compare it to the other map.  27 MR. GOLDIE:  I think it would be useful if I had placed before  28 your lordship the interrogatory map -- that's  29 exhibit --  30 THE COURT:  Exhibit 79.  31 MR. GOLDIE:  If your lordship had that out, now it -- there is a  32 difficulty with it, if you are trying to compare  33 lettering with lettering, you are going to have the  34 north going in one direction and the north going in  35 another direction.  36 THE COURT:  Well, I have -- I am not too worried about the north  37 because I have got to be able to read words and they  38 would be upside down or standing on and heading the  39 other way.  I can orient the maps by this.  40 MR. GOLDIE:  If you look at the Exhibit 79, and pick up the  41 boundary of Madeek, running from the Morice River,  42 although it's not that clear on this map, and compare  43 the narrowness of the throat that that boundary  44 produces with the equivalent on the Exhibit 62, you  45 will see that the boundary has, I hesitate to say,  46 moved north, but it has reduced the area of Madeek's  47 territory. 2303  1 THE COURT:  All right.  Then using the arrow, and proceeding  2 from Houston Tommy Creek, the plateau area is to the  3 west of Houston Tommy Creek?  4 MR. GOLDIE:  Yes.  5 THE COURT:  All right.  6 MR. GOLDIE:  7 Q   Now, Mr. Joseph, I am going to put the Exhibit 62, May  8 12th map, in front of you, and although it's very  9 faint on the map, if you will look at the Houston  10 Tommy Creek, can you tell what that is?  11 A   C'el tay toos taan kwe.  12 Q   Does your lordship have that?  13 THE COURT:  It's written on my map in English.  14 MR. GOLDIE:  Is your lordship looking at the May 12th map?  15 THE COURT:  In Exhibit 62?  16 MR. GOLDIE:  Yes.  17 THE COURT:  How Houston Tommy cabin site?  18 MR. GOLDIE:  To the left of that is the Houston Tommy Creek and  19 it is named Toos taan Kwe.  The name begins a way up  20 at the left and indeed below it is  21 the English name Houston Tommy.  22 THE COURT:  To the left of Houston Tommy Creek with the map  23 facing north?  24 MR. GOLDIE:  To the left of Houston cabin site, Houston Tommy  25 Creek proceeds up into the left hand corner.  2 6 THE COURT:  Yes.  27 MR. GOLDIE:  28 Q   I want to direct the witness's attention to two creeks  29 which appear to be flowing into Houston Tommy, between  30 the letters T and A of Tous taan, do you see that?  31 A   Yes.  32 Q   Is that a valley, Mr. Joseph?  33 A   This whole thing?  34 Q   No, just for those where those two creeks --  35 A   That's, yes, that's the height -- you see, the  36 boundary where the boundary goes, either you follow  37 the river or creek or you follow the height of the  38 land.  You don't come from the height of the land and  39 switch all of a sudden to the creek or the river.  40 Q   I fully understand that.  But we have been talking  41 about a plateau, and I am suggesting to you that the  42 plateau is not a continuous one, there is a valley  43 that runs up, there are two streams or --  44 THE COURT:  Coming in from the north?  45 MR. GOLDIE:  Coming in from the north, yes.  46 A   It isn't very -- there is no valleys, it's all flat in  47 that area. 2304  1 MR. GOLDIE:  2 Q   Where is the plateau which --  3 A   The plateau is -- it would be right in here.  4 Q   When you say right in here, you are moving your  5 finger --  6 A  Well, this on the other map it goes down like this,  7 all over to the creek and then back up.  8 Q   Well, that was the old map?  9 A   The old map.  10 MR. RUSH:  The witness showed the plateau pointing in here.  11 A   Yes, the whole thing is a plateau.  There is hardly --  12 they don't go in there to trap, there is nothing in  13 there.  14 MR. GOLDIE:  All right.  Thank you.  Does that answer your  15 lordship's question?  16 THE COURT:  Yes.  Thank you.   What do you think, Mr. Goldie, is  17 this the time we should adjourn?  18 MR. GOLDIE:  I was to remind your lordship if I had any  19 submissions to make with respect to the schedule.  2 0 THE COURT:  Yes.  21 MR. GOLDIE:  And I am glad to say I have none.  22 THE COURT:  All right.  Thank you.  2 3 MR. MACAULAY:  No, my lord.  24 THE COURT:  I will make a proposal to you then, which I am sure  25 you won't be able to refuse, and I will do that as  26 quick as I can.  27 MR. GRANT:  May I ask one thing, when you raised that schedule,  28 you anticipated there would be a two week period in  29 April.  Is that something that has been changed?  30 THE COURT:  No, that's still tentative.  But I will make a  31 decision on it before I make a proposal to you.  32 MR. GRANT:  All right.  33 THE COURT:  Thank you.  Exhibit 84 is an exhibit for  34 identification, it's not attached to anything else, is  35 it?  It's a free-standing exhibit, is it not?  36 MR. GOLDIE:  Yes, that -- the reason that it's not marked as an  37 exhibit is that we haven't got the excerpts from the  38 interrogatory responses of Henry Alfred, which  39 verifies that map.  And we will bring that tomorrow.  40 THE COURT:  The map you produced, Mr. Goldie, from your friends'  41 documents, number 5540, I am not sure if that was ever  42 marked.  43 MR. GOLDIE:  Yes, I think it was, my lord.  44 THE COURT:  Can counsel remind me of the number?  45 MR. GOLDIE:  76.  4 6 THE COURT:  All right.  Thank you.  I have another matter to  47 attend to and I think we will be doing it here so you 2305  1 are free to take your leave, if you wish.  I will  2 ensure that the room is secure before I leave.  3  4 (PROCEEDINGS ADJOURNED UNTIL THURSDAY, JANUARY 7, 1988 AT 10:00  5 O'CLOCK A.M.)  6  7  8  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  18  19  20 Wilf Roy  21 Official Reporter  22


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