Open Collections

Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1988-02-11] British Columbia. Supreme Court Feb 11, 1988

Item Metadata


JSON: delgamuukw-1.0019312.json
JSON-LD: delgamuukw-1.0019312-ld.json
RDF/XML (Pretty): delgamuukw-1.0019312-rdf.xml
RDF/JSON: delgamuukw-1.0019312-rdf.json
Turtle: delgamuukw-1.0019312-turtle.txt
N-Triples: delgamuukw-1.0019312-rdf-ntriples.txt
Original Record: delgamuukw-1.0019312-source.json
Full Text

Full Text

 3360  1 Vancouver, B. C.  2 February 11, 1988.  3 THE REGISTRAR:    In the Supreme Court of British Columbia,  4 Thursday, February 11, 1988.  Delgamuukw versus Her  5 Majesty the Queen, at bar.  6 I caution the witness and interpreter, you are  7 still under oath.  8 MR. RUSH:  Just before my learned friend commences, I want to  9 advise you that Ms. Mandell will be late this morning.  10 She won't be here until 10:30 and this afternoon she  11 will be excusing herself from the remainder of the  12 cross-examination.  13 THE COURT:  All right.  14 MR. RUSH:  And you will have to put up with me again.  15 THE COURT:  As long as your friends agree, Mr. Rush.  You know  16 that the rule is that when the party who examines a  17 witness in chief or counsel in chief must make the  18 objections, so you will keep that very much in mind,  19 but perhaps your friends will agree in these  20 circumstances that the rule can be waived.  21 THE COURT:  Mr. Mackenzie?  22 MR. MACKENZIE:  My lord, another procedural matter, I confirm  23 that all counsel will be ready to argue that -- those  24 two issues tomorrow morning.  25 THE COURT:  All right.  I look forward with great expectation.  26 MR. RUSH:  I want to advise your lordship that there may be one  27 or two other procedural matters, not the major matter,  28 that I would like to raise.  29 THE COURT:  I will be glad to hear those matters at any time.  30 Thank you.  31 MR. MACKENZIE:  My lord, handing up three new tabs to be added  32 to the document book.  I would request that each  33 person -- that your lordship make a notation in the  34 table of contents and we will provide you with a  35 typewritten table of contents once we have finished  36 the documents.  37 THE COURT:  All right.  38 MR. MACKENZIE:  So handing up tabs 14, 15 and 16.  One of these  39 is not yet punched so you will have to stick it in  40 after the tab.  41 And I will give the description to that.  Tab 14,  42 may be described --  4 3 THE COURT:  Just a moment.  44 MR. MACKENZIE:  Thank you.  Tab 14, may be described as  45 plaintiffs' document number 5541, excerpt; tab 15 is  46 the province's document number 1324, which is Exhibit  47 102. 3361  1 THE COURT:  Province's document —?  2 MR. MACKENZIE:  1324, which is Exhibit 102 in these proceedings,  3 excerpt.  4 THE REGISTRAR:  What was the number on the first one?  5 MR. MACKENZIE:  Tab 14, plaintiffs document 5541.  And, my lord,  6 tab 16 is Emma Michell commission transcript, volume  7 one, excerpt.  And that's Exhibit 73 in these  8 proceedings.  9 THE COURT:  Thank you.  Now these documents go after the second  10 map, which is attached to tab 13, is it?  11 MR. MACKENZIE:  Tab 13, my lord.  There are two maps at tab 13.  12 THE COURT:  Yes.   These can't be inserted in the book, I take  13 it?  14 MR. MACKENZIE:  They are all punched except for the ones at tab  15 16, my lord.  16 THE COURT:  All right.  Thank you.  17  18 CROSS-EXAMINATION BY MR. MACKENZIE:  (Continued)  19  20 MR. MACKENZIE:  21 Q   Mr. Mitchell, yesterday you expressed concerns about  logging activities in the Goosley Lake territory,  correct?  Yes.  You were concerned about the impact on wildlife?  Yes.  You were concerned about the impact on traplines?  Yes.  And you told us also yesterday that you are currently  working at the Moricetown sawmill; is that right?  Yes.  You are working in the mill?  I am not working, I am supervising.  Supervising in the mill?  In the logging.  Supervising on the logging operations?  Yes.  Those logging operations are now being conducted at  Corya Creek?  Between Corya Creek and John Brown Creek.  And those logging operations are clear cutting patches  in that area, correct?  Yes.  And are you aware that that is the area of Bazil  Michell's trapline?  Yes.  And are you aware that Bazil Michell has expressed  22  23  24  A  25  Q  26  A  27  Q  28  A  29  Q  30  31  A  32  Q  33  A  34  Q  35  A  36  Q  37  A  38  Q  39  40  A  41  Q  42  43  A  44  Q  45  46  A  47  Q 3362  1  2  A  3  4  5  Q  6  7  A  8  Q  9  10  A  11  Q  12  13  A  14  Q  15  A  16  Q  17  A  18  19  Q  20  21  A  22  Q  23  24  A  25  Q  26  A  27  28  29  Q  30  31  A  32  33  Q  34  35  A  36  37  Q  38  A  39  Q  40  41  42  43  A  44  Q  45  46  47  concerns about logging on his trapline?  I didn't know about Bazil's concern, but I knew about  Henry's -- Henry Alfred and I only knew that he was  consenting to the logging.  Yesterday, you also told us that you used to trap at  the Goosley Lake territory; is that right?  Yes.  And you stopped trapping for marten around 1952; is  that right?  Yes.  You are a member of a registered trapline on that  territory, aren't you?  My name's on it, yes.  And Dan Michell is the head man on that trapline?  Yes, on the registration, yes.  That's — do you know that that's trapline 609-T064?  I don't know about the numbers but I know by my  memory.  Now, before Dan Michell, the late Alex Tiljoe was the  registered owner of that trapline, wasn't he?  Yes.  And the trapline was transferred to Dan Michell in  1976; is that right?  Yes.  You became a member of the trapline in 1951, right?  I was a member of that trapline since I was a little  boy, when my father raised me on that trapline.  He  raised me there, he teach me there.  Your name was added to the list of the trapline in  1951?  Yes, the white man's way, yes, in the Indian's way I  belong there.  And members of that trapline make fur returns to the  fish and wildlife branch?  At one time I made a return but they wanted it, eh,  and I forgot what year it was.  What I caught.  And did you make a fur return in 1959?  Probably then, yes.  Put tab 2 of the document book in front of the  witness, please.  That's your signature on the the bottom of that  return?  No, there is some letters missing in this signature.  I have, my lord, I have a carbon copy of that  document, which I am going to put before the witness  to assist him in reading the signature at the bottom  of the document. 3363  1 I will put that carbon copy before you, Mr.  2 Mitchell, does that assist you in recognizing your  3 signature on the bottom of that trapline document?  4 A   No, I know that it's the other one I couldn't read.  5 Yes.  6  7 THE REGISTRAR:  Exhibit 225, tab 2.  8  9 (EXHIBIT 225:  RETURN OF REGISTERED TRAPLINE HOLDER)  10  11 MR. MACKENZIE:  12 Q   I am referring to Exhibit 225, Mr. Alfred, you see the  13 licence number at the side of the page there, 5706-57?  14 A   Yes.  15 Q   And this return was covering the season of 1957-1958,  16 wasn't it?  17 A   Yes.  18 Q   That, I am instructed, Mr. Mitchell, that that is the  19 number, the licence number of a special firearms  20 licence.  Did you have a special firearms licence in  21 that year?  22 A   Never did have no firearms licence.  Not that I know  23 of, anyway.  24 Q   Did you have a firearms licence in 1955?  25 A   No.  26 Q   Did you have a fire --  2 7 A   I don't know.  28 Q   Did you have a firearms licence in 1958?  2 9 A   No.  30 Q   And number 5723, do you recall that, 1958?  31 A  Where is that 5723?  32 Q   This is 5706, Exhibit 225, refers to 5706, I am asking  33 about other licences.  Did you have a special firearms  34 licence in 1960?  35 A   No.  36 Q   Did you have a special firearms licence in 1961?  37 A   No.  38 Q   Did you have a special firearms licence in 1962?  39 A   No.  40 Q   Is there any other member of that line whose name is  41 Aired Mitchell?  42 MR. RUSH:  Just a moment.  43 MR. MACKENZIE:  44 Q   I am referring to the line --  45 A   In that line?  46 Q   Exhibit 225, referring to the trapline at Goosley  47 Lake, which we have been discussing.  I am talking 3364  1  2  A  3  Q  4  5  A  6  Q  7  A  8  Q  9  A  10  11  Q  12  13  A  14  15  16  17  18  19  20  21  Q  22  23  24  A  25  26  27  Q  28  29  A  30  Q  31  32  A  33  34  Q  35  36  A  37  Q  38  A  39  Q  40  41  42  43  Q  44  45  A  46  Q  47  about Dan Michell's registered trapline?  There is just me.  There is no other Alfred Michell or Mitchell on that  line?  There is one more but he is in a different clan.  He is not in that territory?  No.  Are you a member of any other traplines?  Well, I was raised on that trapline, that's all I  know.  Referring to Exhibit 225, do you recall taking this in  to the Fish and Wildlife office in 1959?  I couldn't recall when that -- whether I took that in  or not.  One of the reasons that I may have taken this  return in was that at the time when the laws in  regards to this trapline registry was strongly  enforced on us for fear of being -- like, we are  scared of what might happen and as a result I took  that in.  But today, we are not scared of them, we  don't have to do these things.  When you took the trapline in, did you speak to the  game warden, Mr. Cox?  When you took this Exhibit 225,  this document to the fish and wildlife office?  Probably him.  Some of the game wardens there take  them -- there is one more at Glentanna, Allan  Fletcher.  Could be him.  Allan Fletcher has a trapline on Driftwood Creek,  doesn't he?  That I don't know.  Do you recall when you went in with your return that  the game warden typed out the document for you?  In that year I recall putting my kids in there but I  don't recall which one though.  Referring to your comment, you said yesterday, you  told me your band number was 86; is that right?  Yes.  And your birth date is August 6, 1924, correct?  Yes.  Referring to tab 4, there is a band council resolution  which you identified yesterday for the Alexander  Dennis Company trapline and I wonder if the witness  could be directed to that document.  Tab 4.  You told me you signed this document, this band  council resolution, do you remember saying that?  Yes.  That is your name that appears on the third line of  this band council resolution, Alfred Mitchell, band 3365  1 number 86, birth date, 06/08/24?  2 A   Yes.  3 Q   And where is the Alexander Dennis trapline?  4 A   That's right at -- northwest of Knedebeas territory.  5 THE COURT:  Northwest?  6 A   Northwest of Knedebeas territory.  7 MR. MACKENZIE:  8 Q   Now looking at the signatures on that band council  resolution, tab 4, do you recognize Dan Michell's  signature there at the top?  Yes.  He was the chief councillor at that time, wasn't he?  Yes.  And then your signature follows.  Is the next  signature Roy Naziel's signature?  It looks like it is Roy Michell.  And then the next one is Roy Naziel?  Raymond Naziel.  I am sorry.  Raymond Naziel sell.  Is that Dick  Naziel's son?  Yes.  And Dick Naziel was your father-in-law?  Yes, that's right.  Now, yesterday, Mr. Mitchell, you testified that in  the 1940s you were trapping pretty regularly, you  remember that?  Through those years, yes.  And then in 1952, you began to find other employment;  is that right?  Yes, sometimes start working.  And you found other employment in the logging  industry; is that right?  Yes.  Now before 1952, did you have any employment besides  trapping?  Yes, my grandfather and my father had a pole camp.  And you worked in the pole camp in the 1950s you said;  is that correct?  Yes.  Did you have any other occupations during those years,  besides trapping?  I worked with my father in the pole camp most of the  time.  And your father was big Tommy Michell?  Yes.  And his pole camp was near Beament, wasn't it?  Yes.  9  10  11  A  12  Q  13  A  14  Q  15  16  A  17  Q  18  A  19  Q  20  21  A  22  Q  23  A  24  Q  25  26  27  A  28  Q  29  30  A  31  Q  32  33  A  34  Q  35  36  A  37  Q  38  39  A  40  Q  41  42  A  43  44  Q  45  A  46  Q  47  A 3366  1  Q  2  A  3  Q  4  5  A  6  Q  7  8  9  A  10  Q  11  A  12  Q  13  Q  14  15  16  17  A  18  19  20  Q  21  A  22  Q  23  24  A  25  26  Q  27  A  28  Q  29  A  30  Q  31  A  32  Q  33  A  34  Q  35  36  37  A  38  39 THE  COURT  40  A  41 THE  COURT  42  A  4 3 MR.  macke:  44  Q  45  A  46  Q  47  Near Mosquito Flats?  I would say four or five miles from Mosquito Flats.  And you worked for the Bell Pole Company in the summer  of 1961, didn't you?  That was my last year.  And were you logging on the east side of the Bulkley  River when you were at the pole camp with your father  in the '50s?  Yes, on the east side of the river.  And that was in -- that was north of Causqua?  North of Causqua Creek.  North of Causqua.  And you would take poles from the forest, take the  good poles from the forest and develop those into  telephone poles or poles for telephone poles in your  camp; is that correct?  Well, just pick out big number enough for poles and  peel them right out in the bush with a team of horses  to take them out.  And you would leave the other timber there?  Smaller timber we don't touch.  Now, after 1952, did you have any other occupations  besides working in the logging industry?  Yes, I worked for Sylvester William, starting in '58,  the fall.  And '59.  And what were you doing in that --  In the '60s, actually.  What were you doing in that time?  He had a portable mill, portable mill.  Where was the portable mill?  That was in Springhill area.  That's in Wah tah kwets' territory?  Yes.  And during those years that you were working you  didn't go trapping as often as you had in the '40s; is  that correct?  We go trap beaver every spring, every other spring we  worked during the winter.  :  Are you saying you went trapping every other spring?  Yes, sometimes every spring.  :  Sometimes every spring?  Yes.  JZIE:  But you didn't trap for marten after 1952 regularly?  No, my brother did.  Now, the reason that you are out trapping is to take  the furs and sell them; is that correct? 3367  1  A  2  Q  3  A  4  Q  5  6  A  7  Q  8  A  9  10  11  12  13  14  Q  15  16  A  17  18  19  20  21  Q  22  23  A  24  Q  25  26  A  27  Q  28  A  29  Q  30  31  A  32  Q  33  A  34  Q  35  36  A  37  Q  38  39  A  40  41  42  43  Q  44  45  46  A  47  Q  Not only not only that, it was meat for food.  Yes.  But you sell the furs to make some money?  Yes.  And the prices of furs vary over the years, don't  they?  They go up and down.  Now it's pretty low.  It was pretty low in the 1950s, wasn't it?  It was -- fur in the '50s, some years it was pretty  low. It was average.  Some years it was pretty low.  We still go out and trap beaver for meat.  Trouble is  that when I am working for a company, spring break for  about two months, that's when we get time to go out  during that time, we trap beaver.  But when the prices for furs go down, not as many  trappers go out; is that correct?  A lot of people go out for beaver, I know.  Like I  say, that's the best food we have in our diet.  Just  like you guys like T-bone steak, same as us, we lived  on it, like bull hen, change our diet like that.  I  like, being out in the bush.  So you were trapping in those days primarily for the  food?  Food and some money, sure.  When you are working and you have a good income, do  you buy food from the stores?  Yes.  Do you go to Smithers to shop sometimes?  Smithers, Hazelton.  You testified that these days you eat about one steak  a week; is that correct?  If I got a lot of money I eat two steak a week.  That's white man's food?  Yeah.  And today, children are in school during September,  aren't they?  Yes.  And so you can't take them out on the traplines, can  you?  In springtime we take them out, longer days, some long  weekends.  We driving around our territory, that's Sam  Goosley Lake, a road right around it.  And a logging  road.  Yes, you have spoken about those roads before, and you  also told us yesterday that you had a car accident in  1982, do you recall that?  Yes.  And you loaned your pick-up truck to your brother 3366  1 Billie Mitchell?  2 A   That's right.  3 Q   I take it you have a driver's licence then, Mr.  4 Mitchell?  5 A   '82, yes, I had a driver's licence.  6 Q   And you drive on Highway 16 quite frequently going  7 between Moricetown and Smithers and Hazelton?  8 A   Yes.  9 Q   And you take the Buck Creek Road and sometimes the  10 Equity Mine Road when you are going into the Goosley  11 territory, don't you?  12 A   Yes.  13 Q   You broke your ribs in 1982 during that accident,  14 didn't you?  15 A   Yes.  16 Q   And did you go to the Smithers Hospital to have care?  17 A   Yes, they bring me to the Bulkley Valley Hospital.  18 Q   That's in Smithers?  19 A   Smithers.  20 Q   And the doctor looked after you in the hospital when  21 they brought you in?  22 MR. RUSH:  What's the relevance of this cross-examination?  I  23 would like to object to this.  I would like to know  24 why it is relevant that a doctor looked after a  25 witness who was injured in a motor vehicle accident in  26 the Smithers Hospital?  27 MR. MACKENZIE:  Well, my lord, there is quite a lot of evidence  28 called about medicinal plants, and healing on the  29 territories, and the use of the sweat lodges, as Mr.  30 Mitchell in fact said they are hospitals for the  31 ancestors and the Wet'suwet'en.  And this it seems to  32 me this evidence is relevant to show that the times  33 have changed and the Wet'suwet'en people are moving  34 with the times, as we all are, in some cases.  35 THE COURT:  Well, I think, Mr. Rush, that the examination in  36 chief was far-ranging, covered a wide variety of  37 subjects.  I think within the context of your opening,  38 numerous references to the way of life of these  39 people, seems to me that we may be probably frequently  40 are far, far afield.  At the end of the day I shall  41 have to try and collect it together in some manageable  42 way but I don't think at this point that I could say  43 that cross-examination under no circumstances can be  44 relevant.  That being so, I think I should allow Mr.  45 McKenzie to continue.  46 MR. MACKENZIE:  47 Q   Mr. Mitchell, you told us yesterday that your children 3369  1  2  A  3  4  Q  5  6  A  7  Q  8  A  9  Q  10  A  11  12  13  Q  14  A  15  Q  16  17  18  MR.  RUSH:  19  20  21  22  THE  COURT  23  24  MR.  RUSH:  25  26  27  THE  COURT  28  29  MR.  macke:  30  Q  31  32  A  33  Q  34  35  36  A  37  Q  38  39  A  40  Q  41  42  A  43  Q  44  A  45  Q  46  A  47  Q  are in school, is that in Moricetown?  One going to school in Prince George and one in  Hazelton.  And you had eight children with your first wife; is  that correct?  Yes.  And they all went to school?  All went to school.  And did they go to high school?  Well, just made it to Grade 12 in Prince George,  college, got some of them went to Vancouver, my  daughter and my son.  They went down to Vancouver to college there?  Taking a course.  Taking courses.  And the situation now is that your  children can go to school and to university without  charge; is that correct?  Just before the question is translated, does my  friend mean without charge, meaning Mr. Mitchell's  children and grandchildren are not required to pay  tuition?  :  No, I took that to be the import of the question.  But it may not mean that and I think --  Well, I think it requires some clarification.  There  is a large number of charges involved in going to  university in this province today.  :  Yes.  Mr. McKenzie, could you clarify your question,  please?  JZIE:  Your children may go to school now without paying  tuition fees; is that right?  We don't pay ourselves, but the Indian Affairs does.  And yesterday you mentioned that you were concerned  about the UIC cheques, did you mean Unemployment  Insurance Commission?  Yes, that's what I was talking about.  Have you received cheques from the Unemployment  Insurance Commission?  Yes.  Are you a member of the Roman Catholic Church in  Moricetown?  Yes.  Your family attends the church?  All the family, yes.  Your brother Billy lives in Houston, doesn't he?  What?  Your brother Billy lives in Houston? 3370  1 A   Yes, he stays in Houston.  2 Q   When he goes down do Goosley Lake he drives down on  3 the mine road; is that correct?  4 A   This winter he didn't have no vehicle there.  Got  5 somebody to drive him into the mining road.  6 Q   He doesn't get back to Moricetown very often, does he?  7 A  A lot of times he comes back.  When he comes back he  8 stays with Peter Jim and his wife in the village,  9 because he has got no home there.  He is single.  10 Q   Billy doesn't get to the feasts too often, does he?  11 A   I see him there all the time, sitting beside me.  12 Q   Now, Mr. Mitchell, I would like to draw another  13 document to your attention.  You have spoken at length  14 about the logging in Goosley Lake, there is a lot of  15 clear-cutting in Goosley Lake, isn't there?  16 A   Yes.  17 Q   And referring to tab 9, my lord, I would request that  18 that map be put before the witness.  19 Now, generally speaking, Mr. Mitchell, you  20 recognize this as the area of the Goosley Lake  21 territory, you see Goosley Lake in the centre at the  22 bottom there?  23 MR. RUSH:  There are two questions there.  24 MR. MACKENZIE:  Yes, I am sorry.  25 Q   Mr. Mitchell, you see Goosley Lake in the lower centre  26 of that area?  27 A   Yes, I see Goosley Lake.  28 Q   And, generally speaking, do you recognize this as the  29 area around Goosley Lake?  30 A   That's the area.  31 THE COURT:  I haven't found it yet, Mr. Mackenzie.  32 MR. MACKENZIE:  My lord, Goosley Lake is in the lower third of  33 the area encircled in red and the area boundary  34 resembles the Namox boundary on exhibit number 184.  35 THE COURT:  I still don't see Goosley Lake.  36 MR. MACKENZIE:  Well my lord, it's —  37 MR. RUSH:  The yellow line.  38 MR. MACKENZIE:  The yellow line on the right side is going right  39 through the lake, my lord.  The yellow line is going  40 right through the lake.  41 THE COURT:  I have got a yellow line on the left side.  Just a  42 minute.  Let me see the witness' --  43 MR. MACKENZIE:  Right here is Goosley Lake.  44 THE COURT:  All right.  To the right of the yellow line.  45 MR. MACKENZIE:  Sorry, my lord.  4 6 THE COURT:  Yes.  Thank you.  47 MR. MACKENZIE: 3371  1 Q   Now Mr. Mitchell, if you look up at, just above to the  2 northeast of Goosley Lake, that's where the Equity  3 Mine is, isn't it, just northeast of Goosley Lake?  4 A   That's where that -- yes, right there.  That's right.  5 MR. MACKENZIE:  My lord, the witness is pointing to the boxes  6 which are really, are mineral lease designations  7 beside a lake, a small lake, just northwest of Goosley  8 Lake.  9 THE COURT:  Yes.  10 MR. MACKENZIE:  Northeast of Goosley Lake.  Thank you.  11 Q   And I will just put a -- I have got a green pen here,  12 I will just put an A where the witness has pointed to  13 the location of the mine.  14 That's the Equity Mine, is it, Mr. Mitchell?  15 A   Yes, that's the Equity Mine.  16 MR. RUSH:  Well, he puts his pen in a different place than you  17 put the A.  So maybe just to make sure --  18 MR. MACKENZIE:  19 Q   See where I put the A there, the Equity Mine is right  20 there.  21 MR. RUSH:  His pen is not where you have the A.  But if you are  22 including the same area --  23 THE COURT:  I don't think it really matters precisely where the  24 mine is.  It's within those mining licence areas  25 permit areas is it?  26 MR. MACKENZIE:  27 Q   Mr. Mitchell, are you aware that the mine covers an  28 area of 2200 acres?  29 A   No, I am not aware of that.  I never was told that.  30 Q   Pretty big place though, isn't it?  31 A   Yes.  32 MR. MACKENZIE:  My lord, before I go on with this, I request  33 that this document be marked as an exhibit because I  34 have some other questions to ask about it.  35 MR. RUSH:  I don't object to it being marked for an exhibit in  36 respect of what Mr. Mitchell can identify on the map.  37 I think there is a lot of markings and keys and so on  38 and so forth which he may or may not be able to  39 identify.  40 THE COURT:  That's helpful.  It can be the next exhibit then.  41 THE REGISTRAR:  Exhibit 226, tab 9.  42 THE COURT:  But it's only evidence for which the witness can  43 identify.  44  45 (EXHIBIT 226: MAP, TAB 9)  46  47 MR. MACKENZIE: 3372  1 Q   Now Mr. Mitchell, starting at the mine site, you see  2 the Equity Mine Road starting at the green A at the  3 mine site?  4 A   Yes.  5 Q   And could you describe -- my lord, do you have that  6 road leaving the mine site?  7 THE COURT:  I think so.  It's a solid line with a dotted line  8 almost superimposed?  9 MR. MACKENZIE:  No, the road goes straight north.  10 THE COURT:  The dotted line?  11 MR. MACKENZIE:  Yes.  12 THE COURT:  What's that heavier line that in intersects westerly  13 and --  14 MR. MACKENZIE:  I think that's a height of land, my lord.  15 THE COURT:  All right.  16 MR. MACKENZIE:  So, Mr. Mitchell, can you describe where that road  goes for his lordship and move along that road to show  where that Equity Mine road goes from the mine?  Starting from the mine going north and a little jog  here.  There is a creek, that's where the trail goes  down into Goosley Lake.  This trail here.  A deep  creek right in here.  I am marking the line as Mr. Mitchell goes along it,  with a red -- correction, an orange marker, my lord.  There is a height of land.  There is a creek here,  that's why the big jog.  JZIE:  Yes.  Then it continues past the height of land and up  to the northwest?  Right along the top line here, right through here.  On the map that says Klo Creek, doesn't it?  That's Klo Creek.  Klo Creek is a different place.  That's a different place.  Okay.  This map is not  accurate.  JZIE:  Let's carry on with the road, shall we?  Okay, that goes --  40 THE COURT:  The road crosses Klo Creek?  41 MR. MACKENZIE:  42 Q   Crosses the creek and goes along Dungate Creek down to  43 Houston?  Yes, across Dungate Creek and down to Houston.  And I have marked that with an orange marker following  the road from the mine --  Yes, Klo Creek.  17  Q  18  19  20  A  21  22  23  24  Q  25  26  A  27  2 8 MR.  mack:  29  Q  30  31  A  32  Q  33  A  34 MR.  RUSH  35  A  36  37 MR.  mack:  38  Q  39  A  44  A  45  Q  46  47  A 3373  1  Q  2  3  A  4  Q  5  6  A  7  8  Q  9  10  11  A  12  Q  13  14  15  A  Mr. Mitchell is pointing to a creek in the centre of  the map area, as Klo Creek and it's so marked.  This is our boundary down here someplace.  Yes.  And that's fine.  We have got the Equity Mine  Road down there in orange?  How can they miss some of this here?  Some of these  lakes you guys missed.  Now, Mr. Mitchell, the road that comes along the  bottom of the territory is called the Buck Creek Road,  isn't it?  The Buck Creek, yes.  And let's talk about that for a minute.  That road  comes from Houston down Buck Creek and then into the  Goosley Lake territory, doesn't it?  Yes.  16 THE COURT:  I am sorry, I haven't found the Buck Creek Road yet.  17 MR. MACKENZIE:  Well, my lord, it's on this map, it's on the —  18 follow it along for your lordship --  19 THE COURT:  Is it a dark line that leaves Houston and runs  20 almost due south?  21 MR. MACKENZIE:  Yes, comes down to Buck Creek and then runs  22 along the west -- correction, crosses over Buck Creek  23 on a bridge and then runs along the east side of Buck  24 Creek, crosses over again and runs along the west and  25 south sides of Buck Creek, into the territory and then  26 along the southern boundary and then crosses over and  27 comes back into -- out of the territory, and on this  28 map and then carries on right through to the Goosley  29 Lake area.  30 A   Our territory, we call it Neel dzii tezzdlii Kwe.  We  31 don't call it Buck Creek.  32 Q   It becomes Goosley Lake?  33 A   Yes.  34 THE COURT:  All right.  Do you have the spelling for that Mr.  35 Reporter?  36 THE TRANSLATOR:  N-e-e-1, d-z-i-i, t-e-e-z-d-1-i-i, k-w-e.  37 MR. MACKENZIE:  Now, I am going to ask you about some of the areas Mr.  Mitchell, because you have spoken quite a bit about  the logging in the various areas.  Looking up to the  northeast of your territory, there are several areas  in black outline, that's the Foxy Creek area, isn't  it?  Up in this area?  No.  Up here in this area?  Yes, yes, that's right, that's Foxy Creek, goes right  into Maxan territory.  38  Q  39  40  41  42  43  44  A  45  Q  46  A  47 3374  1 MR. RUSH:  The witness pointed to a line on the map which he  2 identified as Foxy Creek.  3 A   This here map is not accurate.  4 MR. MACKENZIE:  5 Q   Yes.  Well, let's deal with it as it is then, Mr.  6 Mitchell.  You pointed to the Foxy Creek area and you  7 testified that there is logging going on up in that  8 area now; is that correct?  9 A   Right now, there is logging all over the country, even  10 in this area here.  That's where they got their roads,  11 right down in our territory, they are logging right  12 along here, that's our territory.  You haven't got it  13 on the map.  They are logging along here.  14 Q   Well, looking at the Foxy Creek area, I am going to  15 mark this area where it appears that there are some  16 logging patches, with a green B.  17 A   This roads goes right down this way.  18 MR. MACKENZIE:  Yes, my lord, the witness is pointing to another  19 road leaving the mine road about midway in the  20 territory and heading east.  21 A   Goes down towards Foxy Creek.  22 Q   I am going to put a C where that road leaves the mine  23 road and heads down towards Foxy Creek.  24 THE COURT:  You say that road continues, does it?  25 A   Yes, it turns off here somewhere, the mine road here  26 and that road runs into this area towards Foxy Creek.  27 MR. MACKENZIE:  28 Q   Now, you testified also yesterday that there is some  29 logging going down over around Allin Creek and in the  30 southeastern portion of your territory; is that  31 correct?  32 A   Okay.  Right along here, Nee'del, there is a mining  33 exploration to when they first started there and  34 that's big timber through here and there is some  35 logging going on there now.  36 Q   The witness is pointing to the area between -- along  37 Allin creek --  38 A   Between here, Allin Creek is our boundary drew.  39 MR. MACKENZIE:  40 Q   Yes.  I am going to put a green D where the logging is  41 going on now according to the witness.  42 A   That is Allin Creek.  43 Q   And you testified also that it there is some logging  44 taking place down around Goosley Lake as well, isn't  45 there?  Here is Goosley Lake and a logged area near  46 your cabin and near the lake?  47 A   Yes, there is a logged area.  This one here was logged 3375  1 out, oh, late '50s.  2 Q   The witness is pointing to the --  3 A   Right by that lake.  4 Q   -- the area at the northeast tip of Goosley Lake.  I  5 am going to put a let's D there.  6 MR. RUSH:  You have already got a D.  7 MR. MACKENZIE:  A letter E.  Thank you I misspoke.  Thank you,  8 Mr. Rush.  9 A   Right along this lake there, that's another, that  10 would be the same here, they are dumping it into the  11 lake that time.  12 Q   And the witness is now referring to an area --  13 A   That one here dumping it into the lake to take it over  14 here.  That's where the road comes out.  15 Q   The witness is now referring to an area on the  16 southern shore of Goosley Lake, an area that has been  17 logged out, and I am marking that with a F, a green F.  18 Now, there has been logging south of the Goosley Lake  19 Road as well, hasn't there, down around Tsee Delk'en,  20 and that area?  21 A   Down in here.  Is this Tsee Delk'en?  22 Q   Down in the southern part of your area, south of the  23 road, you see the green road going along down below  24 the lake.  Here is the lake here.  25 A   That's a little lake there.  26 Q   You testified yesterday also that there is a bridge  27 across the falls at Buck Creek; is that right?  28 A   Yes, right on our boundary.  2 9       Q   Yes.  And that was -- do you know that was built by a  30 logging company?  31 A   Either a logging company or forestry.  I don't know.  32 Q   Do you know that Houston Forest Products built that  33 bridge?  34 A   No, I didn't know that.  35 THE COURT:  Where is that bridge?  36 MR. MACKENZIE:  Mr. Mitchell can tell you, my lord.  37 A   That bridge was built last year or two years ago.  38 It's right on our boundary where the falls is, we call  39 Neenlii Wek'ut.  40 MR. MACKENZIE:    Just down from district lot 6671, at the  41 western boundary, my lord.  Southwestern boundary  42 point there, going across the creek, that's where the  43 boundary crosses at the falls.  44 THE COURT:  Where is the bridge, please.  45 MR. MACKENZIE:  The boundary?  46 A   Right on the boundary here.  4 7 THE COURT:  Thank you. 3376  1 MR. MACKENZIE:  I am putting a letter G.  2 THE COURT:  We have a G.  3 MR. MACKENZIE:    Sorry.  4 Q   And you testified yesterday that they are planning to  5 log up in to the -- up into the Klo Creek area?  Above  6 the falls or on the other side of the falls?  7 A   Yes, they have got that, they were building that  8 bridge when we went through there, when we went there  9 last year.  They are logging out there now, probably.  10 A lot of good timber in this, Klo Creek, along here,  11 some good big timber right in this area.  12 Q   He is talking about the good big timber in the centre  13 of the map, just south of the mine road, and I am  14 going to put a green letter H up in this area.  15 A   Call this peak here is L diits L ayis.  16 Q   You spoke about that yesterday.  We can get a spelling  17 for that, please Mr. Mitchell.  I put a I where the  18 witness pointed for that peak.  I think we marked that  19 F on Exhibit 184.  20 THE TRASLATOR: 597.  21 MR. MACKENZIE:  My lord, I am not going to have any further  22 questions on this map.  So this would be a good time  23 to -- put it aside for now.  24 Thank you.  25 Q   Now, Mr. Mitchell, when you were speaking about the  26 mine road, you said there was also a road from near  27 the mine site down to the lake; is that correct?  Down  28 to the Goosley Lake Road?  29 A   Yes, it goes right down to the Goosley area.  30 Q   And Equity Mine built that road, didn't they?  31 A   Yes.  32 Q   Now, Equity Mine built the long mine road in about  33 1979; is that correct?  34 MR. RUSH:  Which one is that?  35 MR. MACKENZIE:  36 Q   The mine road that goes from the mine site out to  37 Dungate Creek and up to Houston they built that about  38 1979; is that correct?  39 A   I am not sure what year it was.  40 Q   Late '70s?  41 A   In the '70s, anyway.  42 Q   And are you aware that the Forest Service has issued  43 grazing permits for the southwestern part of your  44 territory, the territory claimed by your house?  45 A   I don't know about that.  46 Q   There is a ranch in your territory, a farm in the  47 southwestern part of your territory, isn't there? 3377  Yeah, a couple of mile below Sam Goosley.  That's on the road coming from Sam Goosley Lake, isn't  it?  Yes.  And do you know the owner of that ranch is Mr. David  Jellet?  No, I don't know his name.  Are you aware that that property was first granted by  the Crown in 1915?  I know there is a ranch there, when I was a little  kid, that's where we went through with a wagon, going  through that ranch or farm or whatever it is.  Now, I would like to refer to some photographs, my  lord, in the green booklet of photographs.  Now, before we start looking at the photographs,  Mr. Mitchell, I am instructed that looking at your  house's territory, it seems to be about 155 square  miles in area, do you think that's a fairly accurate  estimate?  I am speaking about, Beg your pardon,  speaking about the Namox territory around Goosley  Lake?  Our ancestors, they didn't go by square miles, they go  by their boundaries and that's what they have it in  their head, and that's what I am using.  I don't know  about square miles.  So, would you be able to say what the area of that  Namox territory is at Goosley Lake?  If you take me to a certain spot I could walk right in  there.  I don't need a map, no compass, in that area.  Okay.  Now, referring to the book, the photograph  booklet, the first photograph I would ask that you  look at, Mr. Mitchell, is the photograph at tab 1.  And now, that is a sign that says Morice Mountain  Cross Country Ski Trails; have you seen that sign  coming along the Buck Creek Road?  I am instructed  it's near Silverthorn Lake?  I see a lot of signs along the road but I probably  seen this  -- a lot of signs along the road.  Are you aware there is a cross country ski area around  Silverthorn Lake going up to the Morice Mountain area?  Now the white man doing a lot of things, they probably  have that.  \FZIE:  My lord, I request that that be marked as the  next Exhibit.  45 THE COURT: Well, it's a tenuous identification.  46 MR. RUSH:  Certainly is.  47 THE COURT:  Are you objecting, Mr. Rush?  1  A  2  Q  3  4  A  5  Q  6  7  A  8  Q  9  10  A  11  12  13  Q  14  15  16  17  18  19  20  21  22  A  23  24  25  26  Q  27  28  A  29  30  Q  31  32  33  34  35  36  37  A  38  39  Q  40  41  A  42  4 3 MR.  MAC]  44 3376  1 MR. RUSH:  Well, I can't really object.  I am sure that  2 something like that is out there.  I know there must  3 be a reason that Mr. Mackenzie put it in there.  But I  4 don't think this witness has identified that.  I don't  5 really object to it, if my friend wants to put it in  6 for identification or some other way.  7 A   You know, if there is a background in this one here, I  8 would recognize the place.  But there is a lot of  9 places that you see timber like this.  Probably got  10 one in there and took a picture of it.  11 MR. MACKENZIE:  12 Q   Do you know where Silverthorn Lake is?  13 A   Silverthorn Hill?  14 Q   Silverthorn Lake.  15 A   No.  16 MR. MACKENZIE:  Well, I won't admit that for an exhibit then, my  17 lord.  18 Q   Now, as you said, you have driven along the Buck Creek  19 Road several times to get to your territory, haven't  20 you?  21 A   Didn't even drive through there.  There was snow shoes  22 in there lots of times.  23 Q   You said there is a lot of sports hunters go along  24 that road now also?  25 A   Right now, yes.  26 Q   And yesterday or the day before yesterday, you saw on  27 the map that that road turns off to go down towards  28 Parrot Lake, do you remember that?  2 9 A   Yes, I remember that.  30 Q   Are you aware that that road in the the 1920s was the  31 main wagon road for settlers to get down to Francois  32 Lake?  33 A   Yes, they drove me through there when I was a baby.  34 Q   That was the main route into the Francois Lake area?  35 A   Yes, Francois Lake.  Wagon road.  36 Q   Now, that Buck Creek Road is maintained by the  37 Department of Highways, isn't it?  38 A   Now, I think it is.  39 Q   And it's kept plowed in the winter?  40 A   Now there is school children through there.  41 Q   School buses that drive through that road?  42 A   I see school buses driving through there, yes.  43 Q   And there are logging trucks to that road?  44 A   Lots of logging trucks.  45 Q   And looking at tab 5 in the booklet, I am instructed  46 or this was taken just south of Goosley Lake on the  47 Goosley Lake Road heading towards Buck Creek, that's a 3379  1  2  A  3  4  Q  5  A  6  7  Q  8  A  common sight in that area, would you agree with that?  This one here looks like it's taken just below Tsee  Delk'en.  And there is a logged area in the background there?  Just this site that Sam Goosley, in places like this  around our territory.  And that's been re-planted?  Yes, probably re-planted.  9 MR. MACKENZIE:  My lord, next Exhibit.  10 THE COURT:   Yes.  This can be Exhibit 227.  11  12 (EXHIBIT 227:  PHOTOGRAPH)  13  14 THE REGISTRAR:  Exhibit 227, tab 5.  15 MR. MACKENZIE:  Yes.  Going along the road to Buck Flats, there are a lot of  private homes along in the Buck Flats area, aren't  there, Mr. Mitchell?  Yes.  And there are --  :  Is Buck Flats within the claimed territory of Namox?  No, that's outside of our territory.  >JZIE:  That's in the Madeek/Kanoots area?  Yes.  \FZIE:  Yes, my lord, Lucy Bazil testified about that at  length in her commission.  And you are an aware that there are bridges across  Buck Creek, that road that comes towards your lake?  Bridges on the Buck Creek road?  Before we get to our territory there is two bridges  Pass over Buck River.  And one more bridge built last  year right across our boundary line.  Now, the Department of Highways and the Forest  Service, do not seek permission from Namox to use that  road, do they?  No.  The school buses that use the road do not seek  permission from Namox to use that road?  School bus never go up that far.  Our territory.  School buses just go to the Buck Flats area; is that  correct?  Yes.  44 THE COURT:  Should we adjourn, Mr. Mackenzie?  45 MR. MACKENZIE:  Yes.  46  47  16  Q  17  18  19  A  20  Q  21 THE  COURT  22  A  2 3 MR.  macke:  24  Q  25  A  2 6 MR.  macke:  27  28  Q  29  30  31  A  32  33  34  Q  35  36  37  A  38  Q  39  40  A  41  Q  42  43  A 3380  1  2  3  4 I hereby certify the foregoing to be  5 a true and accurate transcript of the  6 proceedings herein to the best of my  7 skill and ability.  8  9  10  11  12  13 Wilf Roy  14 Official Reporter  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  4 6 (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT)  47 3381  A. Mitchell (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 THE REGISTRAR:  Ready to proceed, my lord.  2 THE COURT:  Mr. Mackenzie.  3 MR. MACKENZIE:  Thank you, my lord.  Mr. Mitchell, I'm referring  4 to Exhibit 184.  And would you put that before the  5 witness, please, Madam Registrar.  6 THE COURT:  Mr. Mackenzie.  7 MR. MACKENZIE:  Yes, my lord.  8 THE COURT:  I'm sorry.  Tab 5 was marked as an exhibit.  Yes.  9 Thank you.  184.  10 MR. MACKENZIE:  I'm going to be continuing to refer to the  11 photographs, my lord, but just have a pause here to  12 refer to 184.  13 Q   Mr. Mitchell, we spoke about the ranch.  Can you tell  14 his lordship, please, the location of the ranch on  15 Exhibit 184?  16 MR. RUSH:  Just before you do that, what is 184, please?  17 MR. MACKENZIE:  I beg your pardon.  18 MR. RUSH:  The sketch.  19 MR. MACKENZIE:  It's the sketch map of Goosley Lake territory.  20 MR. RUSH:  Thank you.  21 A   The location of the what?  22 MR. MACKENZIE:  23 Q   The location of the ranch.  24 A   Oh, ranch.  25 Q   Just west of the lake.  26 A   It's right there.  Right where that N is, that's where  27 the ranch is.  28 MR. MACKENZIE:  I'm going to put a letter Z with green ink, my  29 lord, showing where that is.  It's just above the  30 maroon N that Ms. Mandell put on the map, 184.  31 THE COURT:  It's where the witness said the letter N is?  32 MR. MACKENZIE:  That's correct, my lord.  33 THE COURT:  And you're putting Z?  34 MR. MACKENZIE:  That's — that's N on its side, my lord.  35 THE COURT:  Yes.  All right.  36 A   Both looks the same.  37 MR. MACKENZIE:  Yes, that's right.  I have a green one there,  38 and I'll circle mine.  39 Q   Now, referring to tab 10, Mr. Mitchell, of the  40 photograph book.  I beg your pardon.  Yes, that's it.  41 Is that the road to the Buck Creek Ranch?  42 A   Yes, that's the road.  I remember seeing that keep off  43 sign part of it.  44 MR. MACKENZIE:  Next exhibit, my lord.  45 THE REGISTRAR:  That will be Exhibit 228, tab 10.  46 (EXHIBIT 228:  Photograph at Tab 10)  47 3382  A. Mitchell (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 MR. MACKENZIE:  2 Q   And, Mr. Mitchell, the Buck Creek Ranch is the ranch  3 you just marked on Exhibit 184, is that correct?  4 A   Yes.  5 Q   And the owner of that property is now doing some  6 logging on that property.  Do you know that?  7 A   No, I don't know that.  8 Q   Do you know whether the owner of that ranch has  9 approached Namox for permission to log on his  10 property?  11 A   No, I don't know that.  12 Q   Referring to tab 18, Mr. Mitchell.  I'm instructed  13 that -- well, that that picture was taken just west of  14 the ranch looking east up the Buck Creek Road.  Do you  15 recognize that terrain?  I beg your pardon.  Looking  16 west.  Looking west up towards Houston just past the  17 the ranch, west of the ranch.  18 A   Okay.  Where that sign we just looked at this road is  19 going south.  20 Q   Yes.  Slightly south, yes.  21 A   Going up hill south.  22 Q   Would you recognize that part of the road?  23 A   Yeah.  That's clear cut.  24 MR. MACKENZIE:  Next exhibit, my lord.  25 THE COURT:  229.  26 THE REGISTRAR:  Exhibit 229, tab 18.  27  28 (EXHIBIT 229:  Photograph at Tab 18)  29  30 MR. MACKENZIE:  31 Q   Mr. Mitchell, looking at that picture, have those  32 clear cuts been replanted?  33 THE INTERPRETER:  I couldn't hear what you're saying.  34 MR. MACKENZIE:  I'm sorry.  35 A   I think about '85, '86 that's when they replanted  36 that, and that's when there was a camp by 'Al egh ben.  37 MR. MACKENZIE:  Do you have a spelling for that, please?  38 THE TRANSLATOR:  It's 558.  39 THE COURT:  I'm sorry.  40 A   It's forestry campsite there.  41 THE COURT:  The number, please?  42 THE TRANSLATOR:  558.  4 3 THE COURT:  Thank you.  44 MR. MACKENZIE:  45 Q   On Exhibit 184 could you tell, please, where 'Al egh  46 ben is?  47 A   'Al egh ben right there. 3383  A. Mitchell (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 MR. MACKENZIE:  The witness is pointing to the small lake just  2 south of Goosley Lake where we have an F.  3 THE COURT:  Yes.  4 MR. MACKENZIE:  And a Q or — I beg your pardon.  An F at any  5 rate.  A black F.  Yes, that's right, and a Q also.  6 So that's the location of 'Al egh ben.  7 Q   And looking at Exhibit 229 there's a loaded logging  8 truck.  You see loaded logging trucks going along that  9 road from time to time, Mr. Mitchell?  10 A   I believe about that time I was employed elsewhere so,  11 and I didn't go up there during that time.  I would go  12 up during the springtime, spring break, and when --  13 and during that spring break we don't see no logging  14 trucks.  15 Q   Has Dan Michell or Billy Mitchell told you that there  16 are loaded logging trucks driving along that road?  17 A   Right now Dan Michell told me that Logan -- logging  18 trucks pass this lake from -- from Houston.  Goes  19 along this creek going up this way.  20 Q   Referring to the --  21 A   South Goosley Lake.  22 Q   Referring to the southeast tip of Goosley Lake heading  23 southeast along the road?  24 A  West side of this creek.  25 Q   Yeah.  West side of the creek flowing into Sam  26 Goosely.  That's —  27 A  And it's logging now.  That's what I told by Dan.  28 Q   Now, to your knowledge, Mr. Mitchell, do the owners of  29 the logging trucks seek permission from Namox to use  30 that road?  31 A   No, I don't know.  32 Q   Referring to tab 19.  Now, Mr. Mitchell, I'll read  33 that sign for you at tab 19.  The sign post says  34 "Parrott Lake".  P-A-R-R-O-T-T.  Pointing off to the  35 right of the picture and down below in red letters  36 there's a sign that says, "No access to Equity Silver  37 Mines.  Use new road at."  That's the turn off to  38 Parrott Lake Road, isn't it?  39 A   Yeah.  One side it says Equity Mine.  40 Q   Yes.  41 A  And turn off for that's right at the fork.  There is  42 two signs there.  43 Q   We're still talking about -- looking at Exhibit 184 we  44 are talking about the point where the Parrott Lake  45 Road heads off to the south from the Buck Creek Road,  46 is that correct?  Yes, you're pointing --  47 A   It's the fork in the road is just before we get into 3384  A. Mitchell (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 our territory.  2 Q   Yes.  The fork in the road is just at the -- where the  3 territorial boundary crosses -- just before the  4 territorial boundary crosses Buck Creek, is that  5 correct?  6 A   Yeah, that's right.  7 MR. MACKENZIE:  Yes.  Do you have that, my lord?  8 THE COURT:  230.  9 THE REGISTRAR:  230, tab 19.  10  11 (EXHIBIT 230:  Photograph at Tab 19)  12  13 MR. MACKENZIE:  14 Q   Now, Mr. Mitchell, the reason the sign about Equity  15 Mine is there is because people in the summer  16 sometimes drive along the road to go up to the mine,  17 is that correct?  18 MR. RUSH:  How could he know the reason for that.  19 THE COURT:  I think you better put your question differently,  20 Mr. Mackenzie.  21 MR. MACKENZIE:  Thank you, my lord.  22 Q   Is the traffic going along the Goosley Lake Road to go  23 up to Equity Mine?  24 A   In summertime it's always open all the way around.  25 Q   Yes.  It's open around the lake up to the mine, isn't  26 it?  27 A   Yes.  28 Q   Yes.  But it's not kept -- that crossroad up to the  29 mine is not kept open in the winter, is it?  30 A   It's not open in the winter.  31 Q   Now, you mentioned that Equity Mine Road built that --  32 sorry.  Equity Mine built the road from the lake up to  33 the mine site.  Do you recall mentioning that?  34 A   They got that mine road down into the lake.  Not right  35 into the lake, but right along where cabin is.  36 Q   And you're referring to the -- the -- a route coming  37 from the point marked X north --  38 A   Down to —  39 Q   -- East of the lake coming down past the number 3  40 where the cabins are, is that correct?  41 A   Yes.  And all -- they have some roads right along this  42 lake back into this trail for exploration sites right  43 along this -- this hill here.  44 MR. MACKENZIE:  The witness is referring to the hill just  45 northwest of Goosley Lake, and he says that there are  46 exploration roads going into that area north of the  47 lake. 3385  A. Mitchell (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 Q   Now, you mentioned that the -- you mentioned that the  2 Equity Mines built the road up to the mine site, is  3 that correct, from the cabins?  4 A   Yes.  5 Q   Yes.  Now —  6 A   There's some clear cut logging up along the road too.  7 Q   Oh, yes.  8 A  And they -- probably this road was built by the  9 loggers partways up the hill.  10 Q   Yes, past the cabins?  11 A   Yeah, past the cabin.  12 Q   Yes.  Now, Equity Mines did not seek permission from  13 Namox to build the road, did it?  14 A   No.  15 Q   And referring to tab 9.  I'm instructed that's a  16 picture taken from the south shore of Goosley Lake  17 looking across.  Would you recognize that, Mr.  18 Mitchell?  19 A   Yes.  Now I know where it is.  20 MR. MACKENZIE:  Next exhibit, my lord.  21 THE COURT:  Thank you.  22 THE REGISTRAR:  231, tab 9.  23  24 (EXHIBIT 231:  Photograph at Tab 9)  25  26 MR. MACKENZIE:  27 Q   Is that clear cut logging areas across the lake there,  28 Mr. Mitchell?  2 9 A   Okay.  The guys are coming down the road when you take  30 this picture.  There is campsite right along the lake  31 here on our side.  32 Q   Yes.  33 A  And this is that clear cut logging I was talking  34 about.  35 Q   Referring to the far side of the lake in the picture?  36 A   Far side of the lake.  That's the one they dump into  37 the lake and take it across.  38 Q   Oh, yes.  Can you tell us on Exhibit 184 approximately  39 where that campsite is, please?  40 A   That campsite is right there.  Right here.  41 MR. MACKENZIE:  Mr. Mitchell is pointing to the very south —  42 southwestern tip of Goosley Lake just where the stream  43 from the black F runs into the lake.  44 Q   Now, the logging companies that conducted that logging  45 and dumped the logs into the lake did not seek  46 permission from Namox, did they?  47 A   No. 3386  A. Mitchell (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 Q   Now, referring to tab 12, Mr. Mitchell, and my lord.  2 You recognize that location, Mr. Mitchell?  I'll read  3 that sign to assist.  It says, "Welcome to Equity  4 Silver Mines Limited.  Canada's largest silver mine.  5 Incorporated March 1979.  Started operation July  6 1980."  7 THE COURT:  Sorry.  Incorporated March '79 and started  8 operations --  9 MR. MACKENZIE:  July 1980.  10 THE COURT:  Thank you.  11 A   That's just before you go into that Equity Mine.  The  12 trouble is no background in here.  I couldn't -- this  13 looks like a cleared area so.  14 MR. MACKENZIE:  15 Q   Referring to the cleared area in the background on the  16 left of the photograph?  17 A   That's -- this would be the mine here, and this land  18 would be right hand side of that road going into --  19 Q   I'm sorry.  Yes?  20 A   Going into the Equity Mines.  21 Q   Yes.  You've seen that sign before?  Next exhibit, my  22 lord.  23 MR. RUSH:  Did you get an answer?  24 MR. MACKENZIE:  I'm sorry.  25 Q   Mr. Mitchell, you've seen that sign before?  26 A   Yes.  27 THE REGISTRAR:  Exhibit 232, tab 12.  28  29 (EXHIBIT 232:  Photograph at Tab 12)  30  31 MR. MACKENZIE:  32 Q   Now, we marked the Equity Mine Road on exhibit --  33 Exhibit 226.  Now, that road was originally built by  34 Equity Mines Limited, wasn't it?  35 MR. RUSH:  Well, maybe you should just show him what you're  36 talking about.  37 MR. MACKENZIE:  I'm sorry.  38 THE COURT:  He's already said that.  39 MR. RUSH:  That's what I thought he said.  4 0 THE COURT:  That the mining —  41 MR. RUSH:  There are several roads going through.  42 MR. MACKENZIE:  43 Q   We are talking about the Equity Mine Road that goes  44 from the mine site up to Dungate Creek and up to  45 Houston.  The Equity Mines built that road?  46 A   To Dungate Creek Equity Mine built that road.  47 Q   Now, that road is maintained by the Department of 3387  A. Mitchell (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 Highways, isn't it?  2 A   I don't know.  3 Q   You've seen snowploughs on the road in the winter?  4 A   Probably, otherwise I'd be using snowshoes.  5 Q   That's right.  And there is a couple of bridges on  6 that road.  You recall that?  7 A   There is one bridge on our territory.  8 Q   Yes.  9 A   There's one bridge on our territory.  10 Q   And referring to tab 13.  There's quite a lot of  11 traffic along that road, isn't there?  Have you seen  12 one of these trucks that's depicted in tab 13 driving  13 along that road?  14 A   In fall time when I go out hunting that way I meet  15 these trucks.  16 Q   And those are concentrate trucks, aren't they?  17 A   Concentrate trucks, yeah.  18 MR. MACKENZIE:  Next exhibit, my lord.  19 THE REGISTRAR:  233, tab 13.  20  21 (EXHIBIT 233:  Photograph at Tab 13)  22  23 A   Those guys don't even have permission to drive through  24 there.  25 MR. MACKENZIE:  26 Q   Yes.  Those trucks take out the concentrate from the  27 mill at the mine site, don't they?  28 A   Probably, yes.  29 Q   And are you aware that they take it to Houston and  30 then over to Prince Rupert?  31 A   I know they're taking it out.  Where they're taking it  32 to that's their business.  In other words, it's not my  33 business.  34 Q   I am instructed there are about four trucks a day  35 going along that road.  Is that a figure that sounds  36 familiar to you?  37 A   I see a lot of trucks going by.  Probably that's them.  38 Q   There are a lot of trucks in that Equity Mine Road out  39 to the Dungate Creek, aren't there?  40 A   Like I said, I'm working down the other end.  When I'm  41 working I'm not up to stay up in the winter.  42 Q   Well, you mentioned the logging at Foxy Creek.  Do you  43 remember that?  44 A   Yes.  45 Q   And the trucks that are going into that area come  46 along the Equity Mine road, don't they?  47 A   Yes.  They use that road, yes. 336  A. Mitchell (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 Q   And those trucks don't -- the owners of those trucks  2 don't seek permission from Namox, do they?  3 A   No.  4 Q   The answer is no.  Speaking about that road, you're  5 aware there are powerlines going -- taking -- beg your  6 pardon.  You're aware there are powerlines going along  7 that road?  8 A   Yeah.  I see the powerlines through there.  9 Q   You know those lines are taking power to the mine  10 site?  11 A   Yes.  Otherwise it wouldn't have lights.  12 Q   Yes, that's right.  And you and Billy use that Equity  13 Mine Road frequently as you've mentioned, don't you?  14 A   Yes.  15 MR. MACKENZIE:  My lord, referring to tab 14.  16 Q   Have you ever been on the Equity Mine Road out to  17 Dungate Creek in the winter, Mr. Mitchell?  18 A   Not in winter.  I go through there in summer.  19 Springtime.  Springtime I go.  Once I had that --  2 0 sometimes they have that road open down into the --  21 down to the cabin sometimes, but not all the time, but  22 this one spring they had this road open down into our  23 cabin.  24 Q   You're speaking about the road from near the mine  25 site?  26 A   Yeah.  Yes.  27 Q   Down to the lake, Goosley Lake?  28 A   Yeah.  Yes.  29 Q   Does Billy use that road in the winter?  30 A   Yes.  31 Q   And he's told you that there are graders and  32 snowploughs on the road keeping it open, hasn't he?  33 THE COURT:  Mr. Mackenzie, that's surely evidence that can't  34 be -- if it's evidence at all can't be of any  35 assistance, can it?  36 A   That's what I'm trying to tell you, there is got to be  37 ploughs otherwise I use snowshoes.  Yes.  Well, I won't press that, my lord.  Mr. Mackenzie, did you want that photo marked?  No.  41 Q   So that Equity Mine Road, to your knowledge, is open  42 to all members of the public, isn't it?  43 A   That I don't know, no.  44 Q   You know that a lot of people use that road, don't  45 you?  46 A  What I know is during hunting season a lot of people  47 on that.  3 8 MR. MACKENZIE  39 THE REGISTRAR  4 0 MR. MACKENZIE 3389  A. Mitchell (for Plaintiffs)  Cross-exam by Mr. Mackenzie  Now, speaking about the Equity Mine, are you aware  that there are 155 people working at the mine?  No.  I didn't go and count them if that's what you  mean.  Are you aware that many of the people working at the  mine are from the Houston area?  I wouldn't know that either.  Are you aware that the mine, Equity Mines, has  received an effluent permit from the Province of  British Columbia to operate at that site?  No, I don't know that.  Are you aware that the Equity Mines has received  mining licenses -- mining leases from the Provincial  Government to operate that site?  I don't know that either.  They should get license  from us.  Yes. They didn't seek permission from you, did they?  No.  And are you aware that the mine now prohibits hunting  and shooting on the mine territory?  Right around their area got signs there no shooting,  no hunting.  They didn't discuss that with Namox, did they?  No.  Like last fall they got that -- my brother was  going down to the cabin and they got that access road  down to our cabin was chained right off.  Was chained off?  Yes.  They had closed the road?  It was closed.  Now, are you aware that the Equity Mine company did  logging in that area to clear the site for mining  operations?  They have to log it in order to have their mine in  there.  They didn't get permission from Namox --  No.  -- To log that area? Are you aware that Equity Mines  received a special use permit from the Forest Service  to conduct that logging?  No.  That there again they should have asked us  because we got traps through there.  If they had let  us know we would take our traps out.  We were never  asked anything.  That's government.  And referring to tab 15 in the photograph book now.  I'll read that sign to assist you.  47 MR. RUSH:  Which tab is that?  1  Q  2  3  A  4  5  Q  6  7  A  8  Q  9  10  11  A  12  Q  13  14  15  A  16  17  Q  18  A  19  Q  20  21  A  22  23  Q  24  A  25  26  27  Q  28  A  29  Q  30  A  31  Q  32  33  34  A  35  36  Q  37  A  38  Q  39  40  41  A  42  43  44  45  Q  46 3390  A. Mitchell (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 MR. MACKENZIE:  Tab 15.  2 MR. RUSH:  Thank you.  3 MR. MACKENZIE:  4 Q   I'll read that sign to assist you, Mr. Mitchell.  It  5 says, "Houston via Buck Flats Road 55 kilometres".  6 Now, can you recognize that site -- that location,  7 sorry, on tab 15?  8 A   You're saying this is Buck Flat turn off from Highway  9 16?  10 Q   No.  I'm instructed this was taken looking at the mine  11 site, seeing the mine buildings, and with the  12 crossroad going down from the mine down to your  13 Goosley Lake cabins.  Is that familiar to you?  14 A   Oh, it is 55 kilometres, is it?  15 THE COURT:  To Houston.  16 A   I couldn't read it, you know.  17 MR. MACKENZIE:  18 Q   I'm sorry.  As I say it says --  19 A   Explain it little better and maybe I --  20 Q   It says Houston via Buck Flats --  21 A   From Houston?  22 Q   It doesn't say to Houston.  It says, "Houston via Buck  23 Flats Road 55 kilometres".  24 A   That's going to -- that would be going through Goosley  25 Lake area?  26 Q   Yes.  You recognize that location, do you?  See -- do  27 you recognize the buildings in the picture?  I'm  28 showing you the photograph.  You're looking at the  29 photocopy.  I'm now showing you the photograph.  30 THE COURT:  So this would be looking southward?  31 MR. MACKENZIE:  Well, yes, my lord.  Looking at the mine  32 buildings.  So it would be -- I'm instructed it would  33 be looking generally in an easterly direction.  34 A  Well, I'm not sure what that building is.  It -- it's  35 just a roof showing there, and I'm not sure of that.  36 There's a whole build -- if the whole building was  37 shown --  38 Q   Yes.  You see the powerlines in the picture?  39 A   Yeah.  You see the powerline all over B.C..  40 Q   Yes.  So you don't recognize that?  41 A   No, I didn't recognize this building.  If you got  42 better picture than that I see.  43 Q   Thank you.  Have you ever been to the mine site at  44 Equity Mines, Mr. Mitchell?  45 A  What's that?  46 Q   Have you been to the Equity Mine site?  47 A   I drove through there a lot of time going -- going 3391  A. Mitchell (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1  2  3  4  5  6  7  8  9  10  11  12 MR.  13 THE  14 THE  15 THE  16 MR.  17  18  19  20  21  22  2 3 MR.  24  25  26  27  28  29  3 0 MR.  31 THE  32 THE  33  34  35  3 6 MR.  37  38  39  40  41  42  43  44  45  46  47  sometimes in summer we even go to our area  Now that road's in there we take our kids  into our -  for picnic  in there.  Q   Referring to tab 16.  This -- I'm instructed this is  taken at kilometer 24 on the Equity Mine Road, and I  think that will be a familiar picture to you, will it  not, Mr. —  A   Yes.  Q   Would you tell his lordship what that is, please?  A   See left hand side of that swamp there going up  towards Taan deet taa begh call this place.  MACKENZIE:  Could we have a spelling on that, please.  TRANSLATOR:  321.  COURT:  321?  TRANSLATOR:  Yes.  MACKENZIE:  Q   And would you be able to locate that on the map,  Exhibit 184?  A   Yes.  Q   This is the location of tab 16, the photograph?  A  Approximately right there.  And that's Equity Mine  Road comes up here, eh, and it hits right along there,  MACKENZIE:  Mr. Mitchell referred to the Equity Mine Road  coming along Dungate Creek, and then he referred to  the location directly east of Dungate Creek where we  have beaver marked along the creek.  Q   And there's a swamp there, and that's the Taan deet  taa begh?  A   Taan deet taa begh.  MACKENZIE:  Taan deet taa begh.  Next exhibit, my lord.  COURT:  Yes.  REGISTRAR:  Will be Exhibit 234, tab 16.  (EXHIBIT 234:  Photograph at Tab 16)  MACKENZIE:  Q   Mr. Mitchell, I'm standing over here to assist you  because my photograph is a clearer picture than the  photocopy that you have.  And looking at that  photograph which is now marked as Exhibit 234, that's  the area where there was -- there was a forest fire,  isn't it?  A   Yes.  Q   And that was the fire in about 1964 you mentioned?  A  Around '58 I mentioned.  Q   Around 1958?  A   Yes. 3392  A. Mitchell (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 Q   Was that the fire in which your father's cabin was  2 burned?  3 A   Yes.  4 Q   Do you know that that is known locally as the Paul,  5 P-A-U-L, Fire?  6 A   That I couldn't remember, no.  7 Q   Do you recall that fire on your territory?  Were you  8 there then?  9 A   I was.  My brother was fighting fire in this area.  10 Q   You're referring to the ridge in the background?  11 A   Yeah.  That's -- that will be our territory.  12 Q   Referring to the ridge in the background, and you say  13 that's your territory along there?  14 A   This is what you call the ridge area, C'enexw dzel  15 Ts'aay.  It's up to here.  16 MR. MACKENZIE:  Yes.  Could we have a spelling for that, please.  17 A   That's the ridge here.  18 MR. MACKENZIE:  Excuse me.  We'll just get a spelling for that.  19 That appears on the Exhibit 184.  20 THE TRANSLATOR:  569.  21 MR. RUSH:  Where is the ridge again, please?  22 A   Ridge is right there.  2 3 MR. RUSH:  Yeah.  24 MR. MACKENZIE:  It's mentioned on —  25 MR. RUSH:  And in the photograph?  26 A   It's this one here.  27 MR. RUSH:  Thank you.  28 THE TRANSLATOR:  I'm sorry.  That last number I gave you, it's  29 552.  C'enexw dzel Ts'aay.  30 MR. MACKENZIE:  The number is 552.  31 Q   And that name appears on the northeastern boundary of  32 the territory.  You discussed it before when you were  33 going over that boundary.  34  35 Now, Mr. Mitchell, the forest service fought that  36 fire, didn't it?  37 A   Yes.  38 Q   They hired people from the Houston area and all around  39 to fight that fire, didn't they?  40 A   Not from Houston area, no.  Lots from Moricetown.  41 They have bus -- there was big fire.  They had bus  42 coming from Moricetown take firefighters in there.  43 Q   And that's been replanted that area?  44 A   I don't know that.  I know right now lot of small pine  45 growing up in there.  46 Q   Now, Mr. Mitchell, as you see in the picture, Exhibit  47 234, this is about kilometre 24 on the Equity Mine 3393  1  2  3  A  4  Q  5  6  A  7  Q  8  9  A  10  Q  11  12  13  A  14  Q  15  16  17  18  19  20  21  22  23  24  25  A  26  27  Q  28  29  A  30  31  Q  32  33  34  A  35  Q  36  37  A  38  39  40  41  Q  42  43  A  44  Q  45  46  A  47  Q  A. Mitchell (for Plaintiffs)  Cross-exam by Mr. Mackenzie  Road.  Are you aware that there's a snowmobile cabin  in that area?  Yes.  I seen it.  And that's a cabin that is built by a local snowmobile  club from Houston?  Yes.  And that club did not seek permission from Namox, did  they?  No.  Are you aware that that club received a special use  permit from the Ministry of Lands of the Provincial  Government?  No, I don't know about that.  Now, I'm referring to tab 11.  Yes.  I'm going to read  that sign to assist you, Mr. Mitchell.  That sign  says, "This area was harvested under Ministry of  Forest supervision as part of a continuing program to  control the spread of the spruce beetle by quick  removal of infected trees.  The insect cannot spread  to nearby healthy trees."  Did you ever see that sign  along the Equity road?  I'm instructed that that's  about 12 kilometres from Houston just at Dungate Creek  coming into your -- the territory that your house  claims.  I've probably seen it, but I don't pay too much  attention to it.  I was looking for my moose.  Are you aware that there's a clear cut area just along  the road there coming in along Dungate Creek?  Yeah.  There's some cleared area right along Dungate  Creek before you go up into our territory.  Do you recall seeing that -- that sign near the  cleared area as you were driving along looking for  your moose?  I was looking for a moose, I'm not looking for a sign.  Now, are you aware that there was an attack of spruce  beetle in that area, Dungate Creek area in 1984?  Like I say, I'm not a forestry ranger.  There's a lot  of beetle areas.  I don't know too much about beetles,  but wherever there's beetle they cut it right out.  That's all I know.  They cut it out because the beetles attack and kill  the trees, right?  Yes.  Probably, yes.  And to your knowledge -- you've seen that done in  other parts of the area?  Yes.  Beetle area was just a small patch.  And are you aware that the forest service has a 3394  A. Mitchell (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 program to try and stop the spread of those beetles in  2 the Bulkley Valley and Houston area?  3 A   Yeah, I do know.  I can -- some years like Babine is  4 places that are -- are not accessible they send crews  5 in there to cut the trees and then they burn it.  And  6 then there's some other areas they send in small  7 contractors and they -- small contractors are put in  8 there and clear cut the area in there.  9 Q   And are you aware what happens to the trees when the  10 beetles attack them?  Do you know that the needles  11 turn orange and they get tinder dry?  12 A   I notice that wherever beetle, timber spruce boughs,  13 they turn brown or whatever.  14 Q   Referring to tab 20.  15 THE COURT:  Are you tendering this tab 11?  16 MR. MACKENZIE:  That hasn't been identified, my lord, tab 11.  17 THE COURT:  Oh, all right.  18 MR. MACKENZIE:  19 Q   Is that what the trees look like when they are  20 attacked by beetles?  21 THE COURT:  Sorry.  What number is it, please?  22 MR. MACKENZIE:  Tab 20, my lord.  2 3 THE COURT:  Thank you.  24 A   Yes.  25 MR. MACKENZIE:  Next exhibit, my lord.  26 THE REGISTRAR:  235, tab 20.  27  28 (EXHIBIT 235: Photograph at Tab 20)  29  30 MR. MACKENZIE:  31 Q   Now, Mr. Mitchell, I'm instructed that that picture,  32 tab 20, Exhibit 235, was taken in the Harold Price  33 Creek area in August 1986.  Are you aware that there's  34 a lot of logging going on up in the Harold Price Creek  35 area to clear out beetle infested areas?  36 A   Logged out area between Chapman Lake and Harold Price  37 Creek a lot of clear cut area.  It's not just for  38 beetles.  For logs too.  39 Q   And are you aware that the logging contractors are now  40 moving into the Blunt Creek Valley, that's X'aaz kwe,  41 at the upper northeast part of that valley?  I'm  42 sorry.  43 A   Yes.  44 Q   I'm putting Exhibit 211 in front of you and showing  45 you that.  If that's the territory claimed by Caspit,  46 and you understand that I'm speaking about this creek  47 that's running through the centre of that territory 3395  1  2  A  3  Q  4  5  6  A  7  Q  8  A  9  Q  10  A  11  Q  12  13  A  14  15  Q  16  A  17  Q  18  19  20  A  21  22  Q  23  A  24  Q  25  A  26  27  Q  28  29  A  30  Q  31  A  32  Q  33  A  34  Q  35  36  A  37  38  Q  39  40  41  42  A  43  Q  44  45  A  46  Q  47  A. Mitchell (for Plaintiffs)  Cross-exam by Mr. Mackenzie  which is Blunt Creek and you call it X'aaz kwe?  X'aaz kwe, yes.  And are you aware that there are logging contractors  moving into the upper part of that valley to cut out  the beetle areas?  Well, I worked -- I work in this area for two years.  You're referring to the --  That's —  You're referring --  The Sus kwe.  You're referring to the eastern boundary of the Caspit  area at district lot 2304 2306, my lord.  And there is another contractor working up this area  here.  Moving into the Caspit?  Soon Dzel.  Moving into the Caspit area just northeast of Soon  Dzel which appears on Exhibit 211, are there  contractors working up there these days?  When I was working was for a company there was no  beetles there, not that I know of.  So this area --  You were logging up there?  I worked for company, yes.  I see.  Which company was that?  P.I.R. got this license for this area.  I working for  Finks Sawmill.  Do you understand that we're speaking about the Sus  kwe area?  Yes.  And P.I.R., what's that stand for, do you know?  Pacific Inlanders Resource.  That's a logging company?  That's sawmill.  Got a sawmill right in Smithers.  Yes.  And they're also -- P.I.R. is also logging  around the Xaaz Creek?  Yes.  They have got timber license right along here  too.  We're referring to the western boundary of that Caspit  territory.  And that is the northwestern boundary.  And they have a forest access road that goes in there,  don't they?  Yes.  Yes.  And you've driven on that road several times,  haven't you?  I drive that lots of times.  We're referring to the forest access road in the  western part of the Caspit territory. 3396  A. Mitchell (for Plaintiffs)  Cross-exam by Mr. Mackenzie  Now, P.I.R. didn't seek permission from Caspit to  build the road and to work in there, did they?  No.  No.  They didn't seek permission from Sylvester  Williams to work in there, did they?  No.  And P.I.R. didn't seek permission from Caspit to work  in the eastern part of the territory along the Sus  kwe, did they?  No, not that I know of.  No.  They didn't seek permission from Sylvester  Williams to work up there on the Sus kwe, to work up  there either, did they?  Not that I know of.  Unless Sylvester would have told  me they had permission.  I travel with him lots.  And to your knowledge P.I.R. didn't seek permission  from Goohlaht to work in that area, did they?  Which area Goohlaht?  I'm talking about the Caspit area.  No.  Not that I know of, no.  And that -- the logging road that's going -- the  logging road going into the eastern part of the Caspit  territory, isn't there, along -- sorry.  The logging road turns off Chapman Lake.  That's  Carrier Sekeni territory.  The logging road goes out to Chapman Lake and then  along northwards along Chapman Lake, doesn't it?  Goes to Chapman Lake and -- turns up Chapman Lake  and --  And it goes up the Fulton River?  Fulton River and then down this Harold Price Creek.  That's where it turns into Sus kwe.  Yes.  Referring to the eastern boundary of the Caspit  territory.  And do you know that the logging road is  now being built into Touhy Creek which is Lots wenii  ts'anlii?  All I know is that Touhy about two kilometres from  this river here into this area someplace.  Referring to the eastern --  That's all I know.  Eastern boundary --  That's where I work.  Boundary of Caspit at lot 2304 and 2306.  \FZIE:  I'm sorry.  Did you want a spelling for Lots  wenii ts'anlii?  47 THE TRANSLATOR:  Lots wenii ts'anlii is 577.  1  2  3  4  A  5  Q  6  7  A  8  Q  9  10  11  A  12  Q  13  14  15  A  16  17  Q  18  19  A  20  Q  21  A  22  Q  23  24  25  A  26  27  Q  28  29  A  30  31  Q  32  A  33  34  Q  35  36  37  38  A  39  40  Q  41  A  42  Q  43  A  44  Q  4 5 MR.  MAC]  46 3397  A. Mitchell (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 MR. MACKENZIE:  My lord, would this be a convenient time to —  2 THE COURT:  Yes.  3 MS. MANDELL:  Excuse me, my lord.  Before we adjourn I seek the  4 court's leave to be excused.  I think I'll go have a  5 baby.  6 THE COURT:  I hope you are.  We extend all best wishes.  What  7 would you have said if I had said no?  Two o'clock.  8 THE REGISTRAR:  Order in court.  Court will adjourn until two  9 o'clock.  10  11 (PROCEEDINGS ADJOURNED)  12  13 I hereby certify the foregoing to be  14 a true and accurate transcript of the  15 proceedings herein to the best of my  16 skill and ability.  17  18  19 Peri McHale, Official Reporter  2 0 UNITED REPORTING SERVICE LTD.  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 3396  A. Mitchell (For Plaintiffs)  Cross-exam by Mr. Mackenzie  1 THE REGISTRAR:  Calling Delgamuukw versus her Majesty the Queen,  2 my lord.  3 THE COURT:  Mr. Mackenzie?  4  5 CROSS-EXAMINATION BY MR. MACKENZIE:  (Continued)  6  7 MR. MACKENZIE:  My lord, learning my lesson yesterday and taking  8 or following Ms. Mandell's admonishment, I am now  9 rising to ask my friend Mr. Rush which housekeeping  10 matters he was referring to this morning when he said  11 he would be bringing up some housekeeping matters  12 Friday morning?  13 THE COURT:  Are you able to assist your friend in that regard,  14 Mr. Rush?  15 MR. RUSH:  Yes, we are going to be dealing with the question of  16 the costs.  You might remember there is a motion  17 outstanding about the costs and some letters which we  18 were to get to you.  Well, we finally tracked down the  19 letters from our side and we are going to have them  20 for you tomorrow.  But we are going to make a  21 submission to you about the change of venue on  22 questions of evidence and argument for a portion of  23 the trial.  And your lordship made certain comments  24 last June about this and we had a submission to make  25 to you about that and a proposal, both about the time  26 and what we would see your lordship doing if you were  27 to venue a portion of the trial back to Smithers for  28 continuation.  29 THE COURT:  You haven't shared any of your proposals with your  30 learned friends up to now?  31 MR. RUSH:  I just have done so.  It's a pretty simple proposal,  32 my lord.  33 THE COURT:  All right.  Well, you may find it useful to tell  34 your friends what you are going do suggest tonight so  35 they can consider it overnight or keep them, as I will  36 be, in a state of anticipation.  37 Mr. Mackenzie?  38 MR. MACKENZIE:  I see Ms. Mandell's directions were correct  39 then.  I am glad they worked out that way.  40 I have a couple of more tabs to hand up to put in  41 the document book, my lord.  17 and 18.  And those  42 tabs can be described as follows, my lord --  43 THE COURT:  Just a moment, please, until I get them into the  44 book.  45 MR. MACKENZIE:  Sorry.  4 6 THE COURT:  All right.  Thank you.  47 MR. MACKENZIE:  Tab 17 are selected documents from the trapline 3399  A. Mitchell (For Plaintiffs)  Cross-exam by Mr. Mackenzie  1 files of Dan Michell, registered trapline and tab 18  2 are documents from the Land Title Office at Prince  3 Rupert.  4 MR. MACKENZIE:  Now, my lord, referring to tab 4 of the — our  5 document book, you will recall that there were four  6 band council resolutions at that tab and it's just  7 come to my attention, my lord, that another band  8 council resolution was marked as an exhibit on Lucy  9 Bazil's commission, and it was marked -- it's marked  10 in this proceeding now as Exhibit 99-L.  And I am  11 going to put that to this witness, because he hasn't  12 had a chance to see it, although it has gone in on  13 Lucy Bazil's examination.  14 I think the court's copy has an exhibit stamp on  15 it, my lord.  I will hand a copy up to your lordship  16 then and to my friends.  17 Q   Now, Mr. Mitchell, this is a band council resolution  18 dated September 10, 1979 and it's dealing with the  19 Louis Tommy and company trapline and that's your  20 signature at the bottom of that page?  21 A   Yes.  22 MR. MACKENZIE:  And the significance of this document, my lord,  23 is that it's different than the document at tab 4, and  24 I am drawing the witness's attention to the  25 difference.  26 Q   Mr. Mitchell, you see on that document, Exhibit 99-L,  27 a stamp, and can you see what it says?  I am going to  28 read it to you assist you.  It says, "Received  29 September 19, 1979, Smithers Fish and Wildlife  30 Branch."  I am handing to you a clearer copy so that  31 you can acknowledge that, do you see that?  32 A   The branch?  Yes.  33 Q   Now the band council would send this resolution or, I  34 am sorry, the band council sent this resolution to the  35 Fish and Wildlife Branch, didn't it?  36 A   You mean we send this?  37 Q   Yes.  38 A  We just make that resolution, that's all I know.  Just  3 9 made it.  40 Q   I see.  You don't know --  41 A  When they send it, I don't know.  42 Q   When they sent it whether the band council  43 administration sent it to the Fish and Wildlife?  44 A   Yes.  45 Q   You don't know that?  46 A   In a case like that just make out resolutions,  47 meetings, and band manager looks after that, after we 3400  1  2  Q  3  A  4  5 THE  COURT  6  A  7  Q  8  9  A  10 MR.  macke:  11  12  13  Q  14  15  16  17  A  18  19  Q  20  21  22  A  23  24  25  Q  26  27  28  A  29  Q  30  31  A  32  Q  33  A  34  35  Q  36  37 THE  REGIS1  38  39  40  41  Q  42  43  A  44  45  Q  46  47  A  A. Mitchell (For Plaintiffs)  Cross-exam by Mr. Mackenzie  are finished with it.  And who was the band manager in September, 1979?  Steve Whipp or Frank Lindsay, one of the two.  I am  not sure.  :  The first name again?  Steve Whipp or Frank Lindsay.  Would the band manager keep copies of the band council  resolutions at the band council office?  Yes.  JZIE:  My lord, I have a couple of more questions on  the photographs before I move to a new subject.  That's all I have for Exhibit 99-L.  And referring to tab 8, the photograph at tab 8 in the  photograph booklet.  Now, Mr. Mitchell, do you  recognize that scene?  Shall I read that sign for you,  or can you see it?  I can just read it, "No Through Road", just that one  sign and this other one I couldn't read.  The other one says "Road Under Construction.  Drive at  Your Own Risk."  Do you recognize that location?  I am  instructed --  The turn-off from main road, mining main road going  down into, looks like it's going down into Sam Goosley  area.  I am not too sure.  Take a look at the photograph and see if that will  assist you.  Do you recognize that as the road that  leads down to your cabins?  If this is Tsee Delk'en, yes it is.  And Sam Goosley lake would be off to the left hand  side of the picture?  No, it will be on the right hand side of the picture.  So you recognize that photograph?  Yes, like I said, if this is Tse Delk'en, this is  going in to Sam Goosley area from the mine.  Yes.  And can you see any -- could I have this marked  as an exhibit my lord?  PRAR:  Exhibit 236, tab 8  (EXHIBIT 236: PHOTOGRAPH)  Do you see any evidence of logging in that area, Mr.  Mitchell?  Clear cut logging in this -- right into this road, as  far as set out.  Pointing to the centre, mid-ground at the end of the  road heading into the picture.  And as far left a small patch.  That would be logged 3401  1  2  Q  3  A  4  5  6  7  Q  8  9  A  10  Q  11  12  13  A  14  THE  COURT  15  16  A  17  THE  COURT  18  19  A  20  THE  COURT  21  A  22  THE  COURT  23  MR.  macke:  24  Q  25  26  A  27  Q  28  29  30  A  31  Q  32  33  A  34  35  MR.  macke:  36  37  38  39  40  THE  COURT  41  MR.  RUSH:  42  43  THE  COURT  44  MR.  RUSH:  45  46  47  THE  COURT  A. Mitchell (For Plaintiffs)  Cross-exam by Mr. Mackenzie  out area too.  Pointing to the left of the picture.  Like I said, I am not too sure if that is Tsee  Delk'en.  It looks just like this.   And that's going  into our territory, down in to Sam Goosley turn-off.  Turn-off at the mine.  Yes.  Can you mark that on Exhibit 184, please?  Not  mark it, but point it out and I will mark it.  That would be this road, facing this way.  You are starting at the X northeast of Sam Goosley  Lake and you think it's the road going down to the  lake from there?  There, yes.  :  That road doesn't go to Sam Goosley Lake.  Doesn't  it go to the cabins?  No, it goes to the Sam Goosley Lake.  :  It goes to the cabins off to the east of the lake,  doesn't it?  From this picture it will go down to our new cabin.  :  Not to the lake?  Not to the lake.  :  Thank you.  JZIE:  Now, referring to tab 28, have you seen one of those  trucks in your -- in the mine area, Mr. Mitchell?  Not in this mine, but I seen some in the Noranda mine.  You see that truck has a sign on it saying Equity  Silver Mines Limited?  Might be easier to see it in my  photograph.  Yes.  But your evidence is that you haven't seen one of  those Equity --  Not Equity Mine but I have seen them trucks in other  mines.  JZIE:  My lord, I would request that this photograph be  marked as an exhibit for the limited purpose of  showing a truck, a mining truck, which the witness has  identified appearing to have the name Equity Silver  Mines Limited on it.  :  Mr. Rush?  All he has done is identify a truck he saw at  Noranda.  :  The kind of truck.  The kind of truck, yes.  Presumably my friend would  like to place a truck with that name on it in the  mine.  This witness hasn't done that.  :  I think we should call it 237 for identification. 3402  A. Mitchell (For Plaintiffs)  Cross-exam by Mr. Mackenzie  1 (EXHIBIT 237 FOR IDENTIFICATION:  PHOTOGRAPH)  2  3 MR. MACKENZIE:  4 Q   Referring to tab 29, Mr. Mitchell, I am showing you --  5 THE REGISTRAR:  What was the tab number?  6 MR. MACKENZIE:  Tab 29, please.  7 Q   Showing you my photograph, which is clear, have you  8 seen a truck like that at the mine site?  9 A   Like I said, not on this site but in Noranda mine ares  10 I have seen those.  11 Q   When you say Noranda, do you mean in Ontario?  12 A   That's Babine Lake area.  13 Q   I won't submit that, my lord.  14 THE COURT:  You mean at the mine on the island, Babine?  15 A   Yes.  16 THE COURT:  At Granisle?  17 A   Next to Granisle.  18 MR. MACKENZIE:  19 Q   And the picture at tab 30, can you identify that  20 picture?  21 A   Yes.  I know it's Equity Mine because this little  22 mountain peak out there, that's what we Nee' del.  23 MR. MACKENZIE:  Could we have a spelling for that please?  24 THE TRANSLATOR:  570.  25 MR. MACKENZIE:  26 Q   My lord, the witness referred to the mountain peak  27 which is, which appears at the top of the picture.  28 Could that be the next exhibit, my lord?  2 9 THE COURT:  Yes.  238.  30  31 (EXHIBIT 238:  PHOTOGRAPH)  32 THE REGISTRAR:  238, tab 30.  33 MR. MACKENZIE:  34 Q   Now, Mr. Mitchell, having looked at tab 30, which is  35 exhibit -- beg your pardon.  Tab 30, which is exhibit  36 238, could you just compare that with tab 15, which  37 you looked at before but you couldn't identify.  Can  38 you identify those buildings in the picture at tab 15  39 now?  I am showing you my picture of tab 30, exhibit  40 238.  41 A   It's the roof of might be the same as this one.  It's  42 just the roof.  43 Q   Referring to the building in Exhibit 238?  44 A   That roof is, it's got a pitched roof in there, you  45 see there.  46 Q   Now, referring to the building at tab 15 --  47 A   I would be sure, if that's it, I would be sure if I 3403  A. Mitchell (For Plaintiffs)  Cross-exam by Mr. Mackenzie  1 could see that little mountain over there.  2 Q   How do you feel about tab 15, can you identify that  3 picture yet?  4 THE COURT:  I think I know how he feels about tab 15.  5 A   Yes, that, I would say, I still say, I am not sure.  6 It could be it.  7 MR. MACKENZIE:  8 Q   Fine.  Thank you very much.  9 Yes, my lord, I think we all do.  Thank you, my  10 lord.  11 Now moving to a new subject, my lord.  And you  12 won't need the photograph book any longer, Mr.  13 Mitchell.  Now referring to Mr. Mitchell's document  14 book, tab 1, that's the affidavit at Exhibit 185.  Mr.  15 Mitchell, I refer you to paragraph 2 on page 2 of  16 Exhibit 185 -- beg your pardon, paragraph 3 on page 2  17 of Exhibit 185.  Now that paragraph, you discussed  18 this in your evidence with Ms. Mandell and in that  19 paragraph you say this territory is located southeast  20 of Neel dzii C'eek, which is Houston, do you see that  21 in paragraph 3?  You see that you have said that it's  22 located southeast?  23 A   It's -- this territory is located southeast of  24 Houston, from Houston.  Southeast or straight south  25 from Houston.  26 Q   And then you say that the territory is 35 miles  27 southeast of Moricetown?  28 A   It's from Houston, not Moricetown.  29 Q   So that should be changed to Houston, 32 miles --  30 A   From Houston to --  31 Q   So that, the paragraph as it stands now is incorrect?  32 MR. RUSH:  Corrected in direct examination.  33 MR. MACKENZIE:  34 Q   You corrected it in your direct examination?  35 A   I corrected that from Moricetown, approximately 107  36 from Moricetown.  37 Q   Did you read that affidavit, paragraph 3, when you  38 signed the affidavit?  39 A   To my understanding this was from Houston and the  40 bottom line it says from K'ayah Wig'et, that's where  41 my mistake was.  So I corrected that to 107 miles from  42 Moricetown, approximately.  43 Q   And you have told us that you are not a chief in the  44 House of Namox, you told us that yesterday?  45 A   No.  4 6 Q   And Emma Michell is your grandmother?  47 A   Emma Michell is my aunt, my father's sister. 3404  A. Mitchell (For Plaintiffs)  Cross-exam by Mr. Mackenzie  1 Q Big Tommy Michell's sister?  2 A Yes.  3 Q And Emma Michell's chief name is Lii luus; is that  4 correct?  5 A Lii luus, yes.  6 MR. MACKENZIE:  I need a spelling for that, my lord.  7 THE TRANSLATOR:  L-i-i, 1-u-u-s.  8 Q Lii luus is a high chief in the house of Namox, is  9 she?  10 A She is next to Namox, not a high chief.  11 THE COURT:  I am sorry, I didn't hear?  12 A She is next to Namox, lower rank than Namox.  13 THE COURT:  Thank you.  14 MR. MACKENZIE:  15 Q She is a very important person in the House of Namox?  16 A Yes, it is important, yes.  17 Q She had visited the Sam Goosley Lake area, hasn't she?  18 A She trapped through that area.  19 Q She has also written to the logging company to get the  20 old cabin at the east end of Goosley lake?  21 A She told me that.  22 Q Yes.  And are you aware that she has written letters  23 to Equity Mines complaining about conditions on the  24 territory?  25 A She told me she had been writing to them, I don't know  26 what response she get out of that.  27 Q So she is very knowledgeable about the territory,  28 isn't she?  29 A Yes.  30 Q And she would know the boundaries of the territory,  31 wouldn't she?  32 A She should know, yes.  33 Q Now, Dan Michell is, as you said, in line for the name  34 of Namox, isn't he?  35 A Yes.  36 Q And his chief's name as you said yesterday is  37 Wigetimstochol?  38 A Wigetimstochol.  39 Q And for many years he was the chief councillor at  40 Moricetown, wasn't he?  41 A Yes.  42 Q And he certainly visits on and traps on the territory,  43 doesn't he?  44 A He visits it frequently, yes.  45 Q He is also the holder of the registered trapline on  46 that territory, isn't he?  47 A Yes. 3405  1  Q  2  3  A  4  Q  5  6  A  7  Q  8  A  9  Q  10  11  A  12  13  Q  14  A  15  16  17  Q  18  19  A  20  Q  21  22  A  23  Q  24  A  25  Q  26  27  A  28  Q  29  A  30  31  Q  32  A  33  Q  34  35  A  36  Q  37  38  39  A  40  41  42  43  Q  44  45  A  46  Q  47  A. Mitchell (For Plaintiffs)  Cross-exam by Mr. Mackenzie  In fact, he gave you authority to swear this  affidavit, Exhibit 185 about the territory, didn't he?  Yes.  And he gave instructions to your brother Billy to trap  in certain areas of the territory, didn't he?  Yes.  He is a caretaker of the territory, isn't he?  Yes.  So he is very knowledgeable about the territory, isn't  he?  Me and him were raised there, me and him with my  father, so we know the place.  You and --  That's why I can have him look after the area, he  traps there.  We trapped there since we was a kid, me  and him.  So he is very knowledgeable about the boundaries of  the territory, isn't he?  Yes.  You have mentioned Sylvester Williams on several  occasions, his chief's name was Hagwilnegh?  Yes.  It's the late Sylvester Williams?  The late Sylvester Williams.  And you trapped and hunted with him for 40 years,  didn't you?  Over 40 years.  Worked with him.  Sorry?  Worked with him, trapped with him, played ball with  him.  He is a chief in the Laksilyu clan, isn't he?  Yes.  And Hagwilnegh has a territory at Maxan Lake, doesn't  it?  That's east of our territory, yes.  Yes.  Referring to Exhibit 185, paragraph 6, that is  your affidavit, paragraph 6, you say to the northeast  is Hagwilnegh, do you see that?  The first line there?  Yes, that's northeast, that's right.  All depends  which -- where you are standing.  If you are standing  way down the other end it's northeast, if you standing  at the north end it would be southeast.  Yes.  In your affidavit you say that his territory is  on the northeast, don't you?  I must be standing on the other end when I said that.  I don't know which end I am standing on now, Mr.  Mitchell. 3406  A. Mitchell (For Plaintiffs)  Cross-exam by Mr. Mackenzie  1 But, his territory, Hagwilnegh does border your  2 Goosley Lake territory, doesn't it?  3 A   Yes.  4 Q   Sylvester Williams is a very knowledgeable man, isn't  5 he, he was a very knowledgeable man?  6 A   He was very knowledgeable.  7 Q   And he would be knowledgeable about the boundaries of  8 his territories, wouldn't he?  9 A   He knows his boundaries.  10 THE COURT:  I wanted to make sure that I haven't lost something  11 here.  I take it there is a difference, it was  12 Hagwinegh will Hagwilnegh and which one was, or is  13 this a misprint in the affidavit?  14 MR. MACKENZIE:  Yes, my lord.  15 MR. RUSH:  That's a misprint.  16 THE COURT:  Same thing.  17 MR. MACKENZIE:  Did you want a spelling for that?  18 MR. MACKENZIE:  Are you satisfied with that?  19 Q   Now, do you know Mr. Leonard George?  20 A   Yes.  21 Q   And his chiefs name is Smogelgem?  22 A   Smogelgem.  23 Q   And in paragraph 6, you say that Smogelgem is to the  24 south and southeast, don't you?  That's paragraph 6 of  25 Exhibit 185, your affidavit.  Do you see that?  26 Paragraph 6?  27 A   Six?  28 Q   Look at the last words in paragraph 6, do you see that  29 to the south and southeast is Smogelgem.  And that's  30 what you say in your affidavit, isn't it?  31 A   Yes, that is right, yes.  32 Q   Mr. Leonard George is in the Laksamshu, isn't he?  33 A   Laksamshu, yes.  34 THE TRANSLATOR:  133.  35 MR. MACKENZIE:  133, my lord.  36 Q   So, Smogelgem's territory is also your neighbour to  37 the south?  38 A   Yes, borders Namox territory.  39 Q   His northern border is your southern border, isn't it?  40 A   Northern border what?  41 Q   The northern border of Smogelgem is the southern  42 border of Goosley Lake territory?  43 A   Ours would be the northern side of that boundary.  44 Q   Yes.  45 A   North, yes.  46 Q   And Mr. Leonard George, Smogelgem is, to your  47 understanding, very knowledgeable about his territory, 3407  A. Mitchell (For Plaintiffs)  Cross-exam by Mr. Mackenzie  1 isn't he?  2 A   Yes.  3 Q   Yes.  And he knows about his boundaries, doesn't he?  4 A   Yes.  5 Q   Now the hereditary chiefs of the Gitksan and  6 Wet'suwet'en are plaintiffs in this action?  7 A   Gitksan and Wet'suwet'en.  I should have some more  8 water.  Might need a refill.  9 MR. MACKENZIE:  10 Q   You said that the hereditary chiefs of the Gitksan  11 Wet'suwet'en are the plaintiffs in this lawsuit?  12 A   Yes.  13 Q   And they are very knowledgeable about their  14 territories, aren't they?  15 A   I know Wet'suwet'en, they are.  16 Q   The Wet'suwet'en hereditary chiefs are knowledgeable  17 about their territories, aren't they?  18 A   Yes.  19 Q   And you respect their judgment, don't you?  20 A   Yes, a long time ago all my ancestors knew the  21 territories by the landmark and there was no such  22 thing as maps and lines and I know my territory in the  2 3 same manner.  And --  24 Q   And you told us today and yesterday that as a band  25 councillor, you seek the advice of the hereditary  26 chiefs with respect to traplines?  27 A  As a band councillor, who make BCR's to transfer or  28 get somebody else on that trap, according to you guys  29 law.  But our law is in a Baal aats, where they named,  30 if there is a land to be transferred to him.  That's  31 why our law is, but according to white man law you  32 have to register that, that's why us councillors have  33 to make a BCR to do that, otherwise it's finished  34 writing in that potlatch hall.  They don't even sign  35 for a transfer of papers, all corners, three corners,  36 they ask them, okay, that's it.  That guy named chief  37 name, he gets that territory.  38 Q   Now, on your examination in chief, you referred to the  39 lake up in the northern boundary called Dliiyh hem  40 ben?  41 A   Yes.  42 Q   Dliiyh hem ben.  43 A  My God, you are getting better.  44 Q   Thank you very much.  45 THE TRANSLATOR:  550.  46 MR. MACKENZIE:  550.  47 Q   And originally in your affidavit, you had that 3406  1  2  A  3  Q  4  A  5  Q  6  7 MR.  RUSH  8  A  9  10  11  12  13  14  15  16  Q  17  18  19  20  A  21  22  23  24  Q  25  26  27  A  28  Q  29  A  30  Q  31  A  32  33  34  35  Q  36  A  37  Q  38  39  A  40  Q  41  42  A  43  44  45  Q  46  A  47  Q  A. Mitchell (For Plaintiffs)  Cross-exam by Mr. Mackenzie  included in the territory, didn't you?  Yes.  And you corrected that, didn't you?  I corrected that, yes.  So the reason you corrected it was that it was not  true when you swore it originally?  What wasn't true?  When I first saw that, in my heart, my father told me  where the land was, it's just south of that Dliiyh hem  ben and that's where I know.  I don't know where they  got this map from.  So, I inquired, Pat Namox, John  Namox, they all said the south was Dliiyh hem ben, so  it was my father that told me before.  I still had my  doubt when I signed that affidavit.  Now, that's why I  corrected it.  Yes.  That's right.  And in the transcript, at volume  53, page 3207, you said that at line 18, you said  "When I first saw that map Marvin got, and I doubted  it."  That's correct, isn't it?  Yes.  Even right now I doubt any map comes in my face  because it's all in my mind.  Old timers recalls, they  don't even need maps.  I must have been reborn there,  that's why I know all the territory.  And later on at line 24 to 26 on page 3207, you said,  "I was having second thoughts about including Dliiyh  hem ben in our territory."  You remember saying that?  Yes.  But you signed the affidavit, didn't you?  Yes, I signed it.  Marvin told you it was true, didn't he?  He said, he inquired, he didn't inquire us, if he did  I would have corrected it there.  Apparently he  inquired it to the next door neighbour, to next half,  maybe they didn't want that Dliiyh hem ben.  When you say Marvin, you mean Mr. Marvin George?  Marvin George.  And then, as you say, you went to double check with  Pat and John Namox, didn't you?  Yes.  And Pat and John Namox are not members of the House of  Namox, are they?  They are not members but they are raised there with  Namox.  They travelled through that area when they  were kids.  They are not members of the Tsayu clan, are they?  No, Laksilyu.  They are members of the House of Wah tah Kwets, aren't 3409  A. Mitchell (For Plaintiffs)  Cross-exam by Mr. Mackenzie  1 they?  2 A   Yes.  3 MR. MACKENZIE:  I need a spelling for that, please?  4 THE TRANSLATOR:  409.  5 MR. MACKENZIE:  409, my lord.  6 Q   Now, referring to your affidavit, Mr. Mitchell, I am  7 going to ask you to have the affidavit, Exhibit 185,  8 and the map, Exhibit 184, available for your  9 convenience, and the first thing  I want to ask you  10 about is this:  When, in another context at volume 53,  11 page 3208, line 1, you were talking about a height of  12 land, and you said "The creek starts from the height  13 of land, goes in our territory, the other ones go down  14 the other way", and that's what you understand to be a  15 height of land, isn't it?  16 A   There is always a height of land between creeks.  17 Q   Yes.  18 A   Yes.  19 Q   And when you spoke about the Woos territory, in volume  20 54, page 3262, at line ten, you talked about the  21 height of land at the Woos territory too, didn't you?  22 I am saying that there are heights of land all along  23 the boundaries, aren't there?  24 A  Well, Woos territory, that would be east of  25 Moricetown.  26 Q   Yes.  27 A   Yes.  28 Q   And the height of land is where the creeks flow  29 different ways on each side of the ridge, correct?  30 A   Yes.  31 Q   Now, looking at your affidavit, Exhibit 185, paragraph  32 5, starting at Tsee Delk'en and that is at the  33 beginning of the description, you say, do you see the  34 description in paragraph 5 of your affidavit?  You  35 say, "Starting at Tsee Delk'en, the boundary then runs  36 in a generally westerly direction along the height of  37 land south of Tsee Leegh Taas'aay..."  38 A   South of Neel dzii Tezzdlii ben.  Height of land south  39 of Tsee Leegh Taas'aay, yes, a little lake there.  40 Q   And then you say -- you mention another lake, Tloogh  41 Teel ben, do you see that?  42 A   Tloogh Teel ben.  That's the name.  43 Q   And then you say here the boundary runs in a westerly  44 direction and crosses Biil K'ee Kwe, do you see that?  45 A   Biil K'ee Kwe.  46 Q   And you say and runs in a northwesterly direction to a  47 hill known as Tsee Deek Wutaiy? 3410  1  A  2  Q  3  A  4  Q  5  6  7  A  8 THE (  COU]  9 MR. ]  VAC]  10  Q  11  A  12  A  13  Q  14  15  16  A  17  Q  18  19  A  20  Q  21  22  A  23  Q  24  25  26  A  27  28  29  30  31  Q  32  33  34  A  35  Q  36  37  38  A  39  Q  40  41  42  A  43  Q  44  45  46  47  A  A. Mitchell (For Plaintiffs)  Cross-exam by Mr. Mackenzie  Tsee Deek Wutaiy.  And that's what you say in your affidavit?  Yes.  And looking on the map, that's Exhibit 184, that's in  fact what the boundary does, it stars at Tsee Delk'en  and then it runs south, south of the first lake?  Tsee Deek Woot'ai, little lake here.  :  Well, the spellings are in these --  >JZIE:  Then it runs south of the next little lake, correct.  Yes.  That's the one here.  Referring to the next lake.  And then it runs south of  the next lake too, doesn't it?  This lake here just  south of the boundary there, just -- the third lake?  Tsee Deek Woot'ai.  And there is another lake just above there, isn't  there?  Gilseyhu ben.  Now, look at the first lake, over from Tsee Delk'en,  the water from that lake runs south, doesn't it?  Yes.  And looking at the next lake, the water from that lake  runs south too, doesn't it?  It runs to Parrot Creek,  doesn't it?  According to my father is this, the ridge ran through  here like I say, there is a high ridge.  This side.  That will be ours.  And then it will go down into a  creek, it will cross a creek.  Another height of land  along here.  But getting back to the second creek, second lake over  from Tsee Delk'en, the water from that lake runs south  from Parrot Creek, doesn't it?  Yes.  You see that.  Then moving to the third lake over from  Tsee Delk'en, the water that that lake runs south into  Parrot Creek, doesn't it?  Yes.  Now, if you look at the Exhibit 184, there is a blue  shaded line running from Tsee Delk'en to T'se  Deek'aay, do you see that line?  Yes.  Now there are some lakes north of that line, aren't  there?  You see that first lake north of the line  going along the blue shaded line, flows into the east  end of Goosley Lake, doesn't it?  Yes. 3411  A. Mitchell (For Plaintiffs)  Cross-exam by Mr. Mackenzie  1 Q   And then moving along the, moving along the blue  2 shaded line, I think there is another lake there,  3 right here, that flows into Sam Goosley Lake on the  4 west end; is that correct?  Or flows into Buck Creek?  5 A   Yes.  6 Q   So, the lakes to the north of the blue shaded line  7 flow north; is that correct?  8 A   That little lake?  9 Q   The lakes that are north of the blue shaded line, they  10 all flow north into this Goosley, Buck Creek, don't  11 they?  12 A   This one here.  13 Q   Yes.  So that blue shaded line is a height of land  14 along that ridge, isn't it?  15 A   There isn't a height of land -- height of land in our  16 boundary, there is a lot of height of lands along  17 there.  18 Q   I agree.  But the blue shaded line is a height of  19 land, isn't it, runs from Tsee Delk'en to Tsee Deek  20 Woot'ai on Exhibit 184, that's a height of land, isn't  21 it?  22 A   Like I said, it's a lot of height of land along here.  23 MR. MACKENZIE:  Fine.  Mr. Mitchell, do you want to say  24 something?  25 THE TRANSLATOR:  Did you mention Tsee Deek Woot'ai?  26 MR. MACKENZIE:  Tsee Delk'en and Tsee Deek Woot'ai, they are  27 both on the southern boundary.  28 THE COURT:  They are marked on Exhibit 184.  29 MR. MACKENZIE:  30 Q   Then there is another part of the boundary I want to  31 look at with you, you agree with me that that blue  32 shaded line is a height of land in that general area?  33 A   Like I said, there is a lot of height of land  34 throughout our area.  35 Q   And that's one of them?  36 A   That's one of them, yes.  We travel through a lot of  37 height of land.  38 MR. MACKENZIE:  My lord I am going to be moving to another  39 series of questions.  4 0 THE COURT:  All right.  Thank you.  Take a few minutes.  41 (PROCEEDINGS ADJOURNED AND RESUMED FOLLOWING RECESS)  42  43 a true and accurate transcript of the  44 proceedings herein.  45  46  47 Wilf Roy 3412  A. Mitchell (For Plaintiffs)  Cross-exam by Mr. Mackenzie  1 Official Reporter  2  3 (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT)  4  5 THE COURT:  Mr. Mackenzie.  6 MR. MACKENZIE:  Thank you, my lord.  My lord, I'm sure it goes  7 without saying, and I apologize in advance to my  8 learned friend, but may I remind my learned friend, or  9 assume that my learned friend has cautioned the  10 witness about communication with other people in  11 discussing his evidence during cross-examination.  12 THE COURT:  I always take that to be assumed, Mr. Mackenzie.  13 MR. MACKENZIE:  Yes.  Thank you, my lord.  14 Q   And now referring to your affidavit, Mr. Mitchell,  15 Exhibit 185.  And I want to look at the area of the  16 boundary at around Dungate Creek.  17 THE COURT:  Still in paragraph 5?  18 MR. MACKENZIE:  Yes, my lord, paragraph 5.  19 Q   From Neenlii Wek'ut the boundary goes north up the  20 ridge to a height of land east of Bob Creek.  Do you  21 see that, Mr. Mitchell?  22 A   Yes.  23 Q   And we start at that point on paragraph 5 on page two  24 of your affidavit where the description starts at "to  25 the height of land east of Bob Creek" about halfway  26 down the paragraph.  My lord, do you have that?  You  27 see Neenlii Wek'ut, my lord?  2 8 THE COURT:  Yes, I have it.  29 MR. MACKENZIE:  Yes.  Thank you.  30 Q   Height of land east of Bob Creek.  And just following  31 your affidavit now, Mr. Mitchell, from the height of  32 land east of Bob Creek the affidavit says, "The  33 boundary runs in an easterly direction to the height  34 of land east of Tsee Delk'en' ts'anlii, (Dungate  35 Creek)".  Mr. Mitchell has got that.  It's in the  36 affidavit.  37 THE COURT:  Yes.  38 MR. MACKENZIE:  39 Q   And, "here the boundary runs in a generally northerly  40 direction along the height of land east of Tsee  41 Delk'en' ts'anlii to Wenelbee C'es, the height of land  42 west of Dliih hem ben".  43  44 Now, do you have Wenelbee C'es, Mr. Mitchell?  45 A  Wenelbee C'es is -- that's the one they marked off,  4 6 eh.  47       Q   Yes.  We're looking at it.  I want to ask you about 3413  A. Mitchell (For Plaintiffs)  Cross-exam by Mr. Mackenzie  1 Wenelbee C'es.  But does Mr. Mitchell -- do you have  2 those words now?  3 THE TRANSLATOR:  Yes.  4 MR. MACKENZIE:  5 Q   Wenelbee C'es, where is that?  6 A  Wenelbee C'es is just next point here.  7 Q   It's the —  8 A   That's where that other map.  9 Q   Yes.  On Exhibit 184 there's a peak which we have  10 looked at before, 5062, I think it would be feet in  11 height, and just immediately to the north of that is s  12 contour marked 4500 feet.  And you say that Wenelbee  13 C'es is at that point, Mr. Mitchell?  14 A   Yes.  15 THE COURT:  Which point, 5062?  16 MR. MACKENZIE:  At the 4500 foot contour.  17 THE COURT:  Oh.  18 MR. MACKENZIE:  Moving up to the point right above 4500 foot  19 contour.  2 0 THE COURT:  Yes.  21 MR. MACKENZIE:  And I'm going to mark that.  I'm going to mark  22 that contour, or at least that point with a number.  23 There's so many numbers and letters on this map now,  24 my lord, I'll -- arbitrarily I'll say number six, my  25 lord.  26 Q   And am I pointing to Wenelbee C'es now, Mr. Mitchell?  27 A   Yes.  28 MR. MACKENZIE:  Yes.  So Mr. Mitchell has confirmed that I'm  29 putting in number six at Wenelbee C'es.  Does your  30 lordship have that point?  31 THE COURT:  Well, I have the 4500 foot.  I'm trying to find out  32 what it is you're relating it to.  33 MR. MACKENZIE:  My lord, is your lordship concerned about where  34 that name appears in the affidavit?  35 THE COURT:  Yes.  36 MR. MACKENZIE:  Yes, my lord.  If you see, my lord, it  37 appears --  38 THE COURT:  Oh, yes.  I have it.  39 MR. MACKENZIE:  Yes.  4 0 THE COURT:  And number six you put right on the peak above the  41 4500 foot contour?  42 MR. MACKENZIE:  Yes, my lord.  43 THE COURT:  Yes.  All right.  The boundary is south of that  44 peak?  45 MR. MACKENZIE:  Yes, my lord.  4 6 THE COURT:  As drawn on Exhibit 184?  47 MR. MACKENZIE:  That's correct, my lord. 3414  A. Mitchell (For Plaintiffs)  Cross-exam by Mr. Mackenzie  1 THE COURT:  Yes.  All right.  2  3 MR. MACKENZIE:  4 Q   So the point I want to make is originally --  5 originally your affidavit referred to that peak which  6 we have marked as number six on 184, didn't it?  7 A   That's where I make my --  8 Q   Then you corrected it?  9 A   That is the boundary I corrected after.  10 Q   Yes.  11 A  At first down to Wenelbee C'es right across to the  12 C'eetadek.  That was all of ours too so I corrected  13 this one.  This part west of Wenelbee C'es.  14 MR. MACKENZIE:  Could we get the spellings of those words,  15 please.  The first one is C'eetadek.  C'eetadek  16 appears on page four of the affidavit.  And Mr.  17 Mitchell deleted that from his affidavit during his  18 examination in chief.  You see that, my lord, under  19 the title ridge?  2 0 THE COURT:  Yes.  21 MR. MACKENZIE:  Yes, my lord.  I just want to get it clear what  22 the original description referred to.  23 Q   And now can you tell us where C'eetadek is, Mr.  24 Mitchell?  25 A   C'eetadek this point here.  26 Q   Now, you're referring -- you're referring to a point  27 or a hill northeast of the small lake that we have  28 marked with a letter A, and it's directly above the  29 northeastern most point of the present boundary.  I'll  30 mark that with the number seven, my lord.  31 THE COURT:  What are you marking number seven?  32 MR. MACKENZIE:  I'm marking that ridge C'eetadek identified  33 by --  34 THE COURT:  Yes.  Thank you.  35 MR. MACKENZIE:  36 Q   Am I pointing correctly there, Mr. Mitchell?  37 A   Yeah.  C'eetadek.  38 Q   Now, in your original description when you refer to  39 the height of land east of Bob Creek are you referring  40 to the northwestern most point of this boundary, or  41 are you referring to a point further northeast of Bob  42 Creek?  43 A   This point here is highest point.  44 MR. MACKENZIE:  The witness is speaking —  45 A   Highest ridge.  46 MR. MACKENZIE:  Yes.  The witness is speaking about the  47 current -- the present northwestern most point as 3415  A. Mitchell (For Plaintiffs)  Cross-exam by Mr. Mackenzie  1 shown on the sketch.  And I'll put a number eight  2 there.  3 THE COURT:  Where are you putting eight, please?  4 MR. MACKENZIE:  I'm putting an eight on the northwestern most  5 point east of Bob Creek, south of Dungate Creek.  6 Q   That's right there, correct?  7 A   Yes.  8 MR. MACKENZIE:  That's number eight right there, my lord.  9 THE COURT:  Yes.  Thank you.  10 MR. MACKENZIE:  11 Q   Now, Mr. Mitchell, when we were looking at this  12 northern boundary you referred to another map.  What  13 map was that?  14 A   That's map Marvin showed to me when I -- when I went  15 this one here.  16 Q   When you signed the affidavit?  17 A   Yes.  When I signed the affidavit.  18 Q   And on that map the boundary went from point 8 to  19 point 6 and over to point 7, didn't it?  20 A   Yes.  On his map, yes.  21 Q   Yes.  And so that's what he told you was the boundary  22 of your territory?  23 A  My territories my father kept telling me this one  24 here.  He said late Tommy Mitchell saw this claim and  25 that's the boundary he kept telling me.  When Marvin  2 6 showed me this boundary I had my doubts and --  27       Q   Yes.  2 8       A  And that's why I checked with Pat Namox and John  2 9 Namox.  That's how I confirmed that.  30 Q   Yes.  And you referred to Dliiyh hem ben.  Do you need  31 that spelling?  32 THE TRANSLATOR:  550.  33 MR. MACKENZIE:  We marked that as little lake point A on Exhibit  34 184.  The witness has just said that originally the  35 boundary went from point eight to point six to point  36 seven.  37 THE COURT:  Yes.  38 MR. MACKENZIE:  39 Q   And that's the description that's in your affidavit,  40 isn't it?  41 A   Yes.  42 Q   Yes.  And that's the -- that's the description as you  43 say in your affidavit.  But, again, with respect to  44 this part of the boundary, Dungate Creek, although you  45 had doubts you swore the affidavit, but then you  46 corrected it in your testimony here in court, didn't  47 you? 3416  A. Mitchell (For Plaintiffs)  Cross-exam by Mr. Mackenzie  1 A   Yes.  Like I said earlier our ancestors they didn't  2 have maps like this.  My father walked around with me  3 in this area.  That's how I know the hills, creeks,  4 and all the lakes.  Our map -- ancestors' map is in  5 their head.  Not like this one here.  That's how I  6 know.  I didn't learn this territory boundaries by  7 map, I learned it by my father.  8 MR. MACKENZIE:  Yes, I understand that.  Now, I'm referring to  9 the transcript at volume 53, page 3205, starting at  10 line two.  Does your lordship have a copy of that  11 transcript?  12 THE COURT:  Nope.  It's all right.  13 MR. MACKENZIE:  Thank you, my lord.  14 Q   Now, Ms. Mandell is leading you through this section,  15 and I'll just read along here starting at line two.  16 Miss —  17 MR. RUSH:  What's the —  18 MR. MACKENZIE:  I beg your pardon.  Page 3205, volume 53.  19 MR. RUSH:  Go ahead.  20 MR. MACKENZIE:  Sorry.  21 Q   Ms. Mandell says, "All right.  You then identify in  22 the affidavit that the boundary continues in a  23 northerly direction along a height of land west of Klo  24 Creek, and that is marked under the English version of  25 the map, to a height of land east of Bob Creek, and  26 that too is marked, my lord."  And Ms. Mandell says,  27 "It's the top point of the northern boundary before  28 the boundary makes a dip."  Court says, "Yes, I see  2 9 it.  Thank you."  And Ms. Mandell says, "And then in  30 an easterly direction to the height of land east of  31 —".  "Tsee Delk'en."  And Ms. Mandell says, "Which is  32 Dungate Creek, my lord."  Ms. Mandell says, "And is  33 that part of the -- what landmark does that part  of  34 the boundary represent?  From here to here?"  And you  35 say, "All the way here to this point is height of  36 land."  Ms. Mandell says, "That's to Bob Creek, my  37 lord."  38  39 Then further on page 3205 at line 38 Ms. Mandell  40 says, "All right.  Now, you say in the affidavit that  41 here the boundary runs in a generally northerly  42 direction along the height of land east of -- it's  43 Dungate Creek?"  And you say, "Tsee Delk'en."  And  44 Ms. Mandell says, "To Wenelbee C'es?"  And you answer,  45 "Wenelbee C'es."  46  47 And that's number six, isn't it? 3417  A. Mitchell (For Plaintiffs)  Cross-exam by Mr. Mackenzie  1 A   Yes.  2 MR. MACKENZIE:  Do you have that, my lord?  3 THE COURT:  Yes.  4 MR. MACKENZIE:  5 Q   And then at line 45 Ms. Mandell says, "And then the  6 height of land west of?"  And you answer, "Dliiyh hem  7 ben."  And she says, "Which is a lake?"  And on page  8 3206 you answered, "Dliiyh hem ben."  Line two she  9 says, "And then runs in an easterly direction to the  10 height of land north of —".  "Dliiyh hem ben."  And  11 line five she says, "-- the lake to C'eetadek?"  And  12 you answer, "C'eetadek."  13  14 And that's number seven, isn't it?  15 A   Yes.  16 Q   Yes.  And then after that you -- and then after that  17 you explain that the lake, Exhibit A, should be  18 outside the boundary, don't you?  19 A   Yes.  20 Q   Now, one other point on the boundary to which I wish  21 to draw your attention, Mr. Mitchell, and then we'll  22 be finished with this part of the questions.  And that  23 is over at -- on the eastern boundary at Foxy Creek.  24 Now, in your page three in your affidavit at paragraph  25 5, and we'll follow it on Exhibit 184, you have the  2 6 boundary coming down the height of land on the  27 northeast C'enexw Dzel Ts'aay, is that correct?  28 A   Cenexw Dzel Ts'aay.  29 MR. MACKENZIE:  Got that, Mr. Mitchell?  30 A  And that's —  31 MR. MACKENZIE:  And that appears towards the bottom of your  32 paragraph 5 of your affidavit.  Now, do you have where  33 that is, my lord?  34 THE COURT:  Yes.  35 MR. MACKENZIE:  Yes.  Do you have that spelling, Mr. Mitchell?  36 THE TRANSLATOR:  Yes.  552.  37 MR. MACKENZIE:  38 Q   Then you say here the boundary runs southeasterly to  39 Foxy Creek.  So you have the boundary going over to  40 Foxy Creek, don't you?  41 A   Yes.  I have boundary from Dzel Ts'aay to Foxy Creek,  42 yeah.  43 MR. MACKENZIE:  Have you got the spelling?  44 A   Cenexw Dzel Ts'aay from Foxy Creek.  45 MR. MACKENZIE:  46 Q   Yes.  That's the ridge we just mentioned.  Have we got  47 that clear?  Okay. 3416  1  2  3  4  5  6  7  A  8  Q  9  A  10  11  Q  12  A  13 MR.  MAC]  14  15  Q  16  17  A  18  Q  19  20  A  21  Q  22  23  24  A  25  Q  26  27  28  A  29  Q  30  A  31  Q  32  33  A  34  35  36  Q  37  A  38  Q  39  40  41  42  A  43  44  Q  45  46  A  47  Q  A. Mitchell (For Plaintiffs)  Cross-exam by Mr. Mackenzie  Then the boundary you say follows a southerly  direction along the west bank of Foxy Creek, right,  you go down Foxy Creek for three miles, right, and  then you go south -- southerly through C'el T'aat  Wee'oo?  Niss Tsee diizdlee kwe.  You go through the beaver pond?  Pass -- before we get Niss Tsee diizdlee kwe there is  a beaver pond.  The name of that?  That's Niss Tsee diizdlee kwe.  >JZIE:  You need that spelling, Mr. Mitchell?  Do you  have that, Mr. Mitchell?  It's in the affidavit.  And you go to the head of Niss Tsee diizdlee kwe,  which is Allin Creek, correct?  Yes.  This side is Niss Tsee diizdlee kwe.  And you follow Allin Creek down to a point opposite  the head waters of Neenlii kwe, correct?  Yes.  Now, if you look over to the left you'll see there is  that blue shaded line again, and after it leaves  Cenexw Dzel Ts'aay it carries on, doesn't it?  Yes.  Yes.  We're looking at this blue shaded line now on  the southwest -- southeastern boundary, and that's the  height of land going along there, isn't it?  Yes.  Yes.  That's what I was wondering, what's this line here?  Yes.  When you look at it you see it's a height of  land, don't you?  What are they, that's what I want to know.  What are  those lines that's right in the middle of our  territory?  But if you look at this particular one --  You go right out here.  Yes.  Yes.  You'll see that this particular shaded  line follows the height of land just west of Foxy  Creek, doesn't it?  You see it going around Foxy  Creek?  Height of land all over like a height of land through  here.  I agree.  This blue shaded line is height of land in  this area.  Okay.  What does that represent?  It doesn't represent anything except it's the height 3419  A. Mitchell (For Plaintiffs)  Cross-exam by Mr. Mackenzie  1 of land --  2 A   Oh.  3 Q   -- At that point.  4 A   That's -- if that's a boundary I disagree.  That's  5 what I was wondering.  6 Q   I'm not suggesting it was a boundary.  I just wanted  7 to bring to your attention that the height of land is  8 marked coming down there.  9 A   Oh, just height of land.  Okay.  10 THE COURT:  Are you sure that's the height of land, Mr.  11 Mackenzie?  If you look at the very top centre of the  12 plan at Old Man Lake and Lake McBrierie the height of  13 land takes 90 degree turns, and that's unusual.  14 MR. MACKENZIE:  Those are provincial administrative boundaries,  15 and in this area they follow the heights of land in  16 this particular -- along this particular area.  17 THE COURT:  I see.  All right.  18 MR. RUSH:  Apparently they go in square and right angle turns in  19 certain parts.  2 0 THE COURT:  That's what I wondered about.  21 MR. MACKENZIE:  My lord, this will all become clear.  I think  22 the witness has agreed that this particular area west  23 of Foxy Creek is the height of land.  24 THE COURT:  Oh, well, it rather looks like it, but I'm not sure  25 the witness should be expected to --  26 MR. MACKENZIE:  Well, my lord —  27 THE COURT:  — Draw that conclusion.  28 MR. MACKENZIE:  Sorry, my lord.  Sorry, my lord.  2 9 THE COURT:  Well maybe -- maybe he can reach that conclusion.  30 It rather looks like it, but if you're going to be  31 calling some expert evidence on it, or something of  32 that kind, is it important to have the witness --  33 press the witness for an answer to that question?  34 MR. MACKENZIE:  No, my lord.  I think the witness has agreed  35 that's the height of land west of Foxy Creek, because  36 the creeks run one way on one side and the other way  37 on the other side.  And this will become clear, my  38 lord.  I just want to draw the court's and Mr.  39 Mitchell's attention to that particular line.  4 0 THE COURT:  If he can agree fine.  41 MR. RUSH:  Well, my lord, what I heard was Mr. Mackenzie was  42 saying this was the height of land and Mr. Mitchell  43 was saying well, if you say so that's --  44 THE COURT:  I think that's right.  45 MR. RUSH:  That's what I see.  46 MR. MACKENZIE:  Well, that's cross-examination — what  47 cross-examination is, my lord, it's leading questions. 3420  A. Mitchell (For Plaintiffs)  Cross-exam by Mr. Mackenzie  1 THE COURT:  Well, it can be leading.  What do you say, Mr.  2 Mitchell, does that line represent the height of land?  3 A   That's what he says that blue line -- that's what he  4 said.  5 THE COURT:  What do you say?  6 A  Well, I know, like I said, this height of land goes  7 right through Equity Mine.  8 THE COURT:  Just south of there?  9 A  What I was saying if that was some kind of boundary  10 that I wouldn't agree with.  So now he said it's just  11 height of land.  12 THE COURT:  It does look like it skirts around the head waters  13 of Foxy Creek which would suggest to me it's height of  14 land.  15 A   That's height of land, yes.  16 THE COURT:  All right.  17 MR. MACKENZIE:  My lord, that testimony appears at volume 53,  18 page 3211, line 14 to 17, line 25, and page 3214,  19 lines five to eight.  20  21 Now, my lord, referring to tab 5 of the document  22 book.  This is Exhibit 73G.  23 THE COURT:  I'm sorry.  Tab number again, please?  24 MR. MACKENZIE:  73G, my lord.  25 THE REGISTRAR:  Tab 5 of the black book, my lord.  26 THE COURT:  Okay.  Thank you.  You say this is already an  27 exhibit?  28 MR. MACKENZIE:  Yes, my lord.  Exhibit 73G, my lord.  It's  29 Exhibit 2 at the commission of Emma Michell, and that  30 was filed by the plaintiffs.  31 THE COURT:  Yes.  32 MR. MACKENZIE:  Now, Mr. Mitchell, this is an exhibit identified  33 by Mrs. Emma Michell on her commission evidence, and  34 that appears -- that commission evidence appears at  35 tab 16, my lord.  I'm referring to volume 1 of Emma  36 Michell's commission evidence at tab 16, page 46,  37 question 38.  38 THE COURT:  I'm sorry.  Tab?  39 MR. MACKENZIE:  Tab 16, my lord.  4 0 THE COURT:  Yes.  41 MR. MACKENZIE:  Page 46, line 38.  Do you have volume 1 there,  42 my lord, page 46?  43 THE COURT:  I can't find page numbers.  44 MR. MACKENZIE:  They're up in the very top left hand corner, my  45 lord.  46 THE COURT:  Someone put a staple through it, I guess.  47 MR. MACKENZIE:  Sorry, my lord. 3421  A. Mitchell (For Plaintiffs)  Cross-exam by Mr. Mackenzie  1 THE COURT:  Now, the page again?  2 MR. MACKENZIE:  Page 46, my lord, in volume 1, excerpt from  3 volume 1.  4 THE COURT:  Yes.  5 MR. MACKENZIE:  And 47.  6 THE COURT:  Yes.  7 MR. MACKENZIE:  Starting at line 38 on page 46, my lord.  Mr.  8 Grant says, "I'd like to refer you to the map."  And  9 then there's an off the record discussion, and Exhibit  10 2, Map of Namox' territory appears there.  And then  11 Mr. Grant says, "Okay, Emma I'm showing you a map  12 which is now up beside you.  And for the record, while  13 Mr. 0'Byrne was here, I showed it to you and you  14 recognized this map and it's been marked as Exhibit 2  15 on this Commission."  16  17 And just as a matter of information, my lord, Mr.  18 0'Byrne was appearing for the Crown in the Right of  19 the Province in the right of that commission evidence.  2 0 THE COURT:  Yes.  21 MR. MACKENZIE:  And then Mr. Grant says, "Now, just to give you  22 your bearings there is a lake near the bottom called  23 Neel dzii ben?"  The witness said, "Neel dzii ben."  24 Question, "Do you know that lake?"  The witness, "I  25 never been out there (inaudible) since I hear about  26 Neel dzii ben."  Mr. 0'Byrne says, "Excuse me Mr.  27 Grant, can we have that translated, please?" "(Further  28 response by Witness to Interpreter )"  "It's inside my  29 line and I've heard of the lake."  30 Q   Okay.  Mr. Mitchell, starting at -- do you see Tsee  31 Delk'en down in the lower part of the map?  32 A   On the right hand side?  33 Q   Yes.  Down on the lower right hand side on the  34 boundary do you Tsee Delk'en?  35 A   Tsee Delk'en you got wrong place.  36 Q   Tsee Delk'en down here?  37 A   No.  Tsee Delk'en right here.  38 Q   You're referring to the next lake west.  Let's look at  39 the boundary on this map.  Yes.  The boundary goes  40 from Tsee Delk'en in a northwesterly direction north  41 of those little lakes and continues in a westerly  42 direction over to the Tsee deek Woot'ai before it  43 turns north again, correct?  You see that on that map?  44 A   Yeah, I see that all right.  It's a wrong map.  45 Q   Yes.  Okay.  Then looking up at Dungate Creek you see  46 that the boundary goes from the height of land east of  47 Dungate Creek -- I'm sorry.  The height of land east 3422  A. Mitchell (For Plaintiffs)  Cross-exam by Mr. Mackenzie  1 of Bob Creek goes directly -- it goes easterly across  2 Dungate Creek to Wenelbee C'es, doesn't it?  You see  3 that.  And then it continues north, doesn't it?  You  4 see that on that map?  5 A  According to this map here it's from Tsee dee Woot'ai  6 pretty near straight line, eh, and then —  7 Q   Yes.  And then over on the Foxy Creek area you see  8 that the line comes down along Foxy Creek and then it  9 turns west along Foxy Creek and then it heads south.  10 THE COURT:  Just a moment.  I haven't found Foxy Creek.  11 MR. MACKENZIE:  My lord, Foxy Creek is in the upper right hand  12 corner of the map which is Exhibit 73G.  It's coming  13 down from the northeast.  14 A  According to this map here it says you got this one  15 here, that little lake Tsee suul ts'ak ben.  That's  16 not the right name of that.  This is G'oh k'ets ha  17 t'ai.  That's Foxy Creek.  That's where Foxy Creek  18 starts.  19 MR. MACKENZIE:  Yes.  Yes.  20 THE COURT:  Is this Foxy Creek that's shown on this map starting  21 at the lake which is called Dieeh Hum Bun, is that  22 Foxy Creek?  23 A   No.  Dliiyh hem ben.  Dliiyh hem ben is way up here.  24 It's up north.  25 THE COURT:  Dieeh Hum Bun is marked on this map.  26 A   No, that's wrong.  Dieeh Hum Bun is Tsa zulle Khak.  27 MR. MACKENZIE:  We need some spellings for those.  28 A   You must be drunk when you did this.  29 Q   I didn't do it.  I'm just referring you to the eastern  30 boundary, and you see it comes along Foxy Creek, then  31 it goes south then to Nee'del.  You've told us about  32 Nee'del.  And then it comes further south.  You can  33 see it's west of Allin Creek.  And I suggest to you it  34 comes further south along the height of land down to  35 the point at the head waters of Buck Creek.  You see  36 how that boundary comes down on that map?  37 THE TRANSLATOR:  Excuse me.  I have to get some words here.  38 Tsee zuul ts'ak ben is 556.  Wenelbee C'es is 549.  39 Dliiyh hem ben is 550.  There was another one.  40 MR. MACKENZIE:  Nee'del.  41 THE COURT:  Mr. Mackenzie, you've been talking about Foxy Creek  42 on this map 73G, but I don't have it located yet,  43 unless it's this creek with two branches in the  44 extreme northeast corner of this territory within the  45 black line.  Is that what you're talking about Foxy  46 Creek?  47 MR. MACKENZIE:  Yes, my lord.  Yes, I have been.  Perhaps it 3423  A. Mitchell (For Plaintiffs)  Cross-exam by Mr. Mackenzie  1 would be more accurate to say that the boundary  2 appears to follow a creek -- and the boundary appears  3 to follow a creek flowing south.  4 THE COURT:  I don't see.  That's what I don't see, where this  5 boundary follows a creek.  6 MR. MACKENZIE:  Well, my lord, can you see how the boundary  7 moves around?  8 THE COURT:  You mean the easterly boundary?  9 MR. MACKENZIE:  Yes, my lord.  Northeast portion.  10 THE COURT:  Yes.  You say that's covering over a creek?  11 MR. MACKENZIE:  Yes, my lord.  12 THE COURT:  I see.  It does extend out of the bottom.  You say  13 that's Foxy Creek?  14 MR. MACKENZIE:  I'm suggesting that, my lord.  15 THE COURT:  I see.  You say that one of the branches of Foxy  16 Creek swings south and that's the boundary?  17 MR. MACKENZIE:  Yes, my lord.  18 THE COURT:  Well, can Mr. Mitchell tell us whether he agrees  19 with that or not?  20 MR. MACKENZIE:  Yes, my lord.  21 THE TRANSLATOR:  Excuse me.  There is one G'oh, starts G'oh?  22 A  Well, they got -- this says Tsa zulle Khan Bun.  23 That's where G'oh k'ets ha t'ai.  That's what you call  24 this lake where you got Tsa zulle Khan Bun.  Where you  25 got this Klem Ben (phonetic) that's Tsee Delk'en.  26 Klem Ben (phonetic) is way over north outside of our  27 boundary.  And here I don't know why got this G'oh  28 k'ets ha t'ai way over here for.  29 MR. MACKENZIE:  Well, my lord, shall I put that question to the  30 witness, my lord?  31 THE COURT:  Yes.  I hope so.  32 MR. MACKENZIE:  33 Q   Mr. Mitchell, do you agree with the way that the  34 easterly boundary is depicted on this map, Exhibit  35 73G?  36 A   No, I don't agree with this boundary.  37 Q   Okay.  And —  38 A   Lot of mistakes on it.  39 Q   And do you agree with the southern boundary as it's  40 depicted from Tsee Delk'en west?  41 A   Like I said, I don't agree with it.  42 Q   And do you agree with the boundary up at the area of  43 Dungate Creek?  44 A   No, I don't agree with it.  45 MR. MACKENZIE:  My lord, is that satisfactory in answer to your  46 lordship's questions?  47 THE COURT:  Yes, I guess so. 3424  A. Mitchell (For Plaintiffs)  Cross-exam by Mr. Mackenzie  1 A   They have these names inappropriate places.  2 MR. MACKENZIE:  Yes.  Does your lordship wish to adjourn at this  3 time?  4 THE COURT:  Yes, I think probably we should.  5 MR. MACKENZIE:  My lord, this is already marked as Exhibit 73G  6 in these proceedings.  No requirement to mark it now.  7 THE COURT:  No, it needn't be marked again.  All right.  All  8 right.  Thank you.  We'll adjourn then until ten  9 o'clock tomorrow morning.  10 THE REGISTRAR:  Order in court.  Court will adjourn.  11  12 (PROCEEDINGS ADJOURNED)  13  14 I hereby certify the foregoing to be  15 a true and accurate transcript of the  16 proceedings herein to the best of my  17 skill and ability.  18  19  20 Peri McHale, Official Reporter  21 UNITED REPORTING SERVICE LTD.  22


Citation Scheme:


Citations by CSL (citeproc-js)

Usage Statistics



Customize your widget with the following options, then copy and paste the code below into the HTML of your page to embed this item in your website.
                            <div id="ubcOpenCollectionsWidgetDisplay">
                            <script id="ubcOpenCollectionsWidget"
                            async >
IIIF logo Our image viewer uses the IIIF 2.0 standard. To load this item in other compatible viewers, use this url:


Related Items