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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1987-06-24] British Columbia. Supreme Court Jun 24, 1987

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 1719  1 Smithers, B.C,  2 June 24, 1987.  3  4 (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT)  5  6 THE REGISTRAR:  In the Supreme Court of British Columbia, this  7 24th day of June, 1987.  Delgamuukw versus Her Majesty  8 the Queen.  9 ALBERT JOSEPH, Previously sworn:  10  11 THE REGISTRAR:  Witness, I remind you you are still under oath.  12 THE COURT:  Mr. Rush, before you start, I think it might have  been obvious yesterday from one of the questions that  I am in some state of uncertainty about the word Bii  wenii.  Bii wenii.  :  Well, I have been taking it pronounced as Bii wenii.  That's right.  :  But I am not sure -- I am not sure that -- I have  assumed that Bii wenii was spelled B-i-i w-e-n-i-i.  That's correct, it is.  And that is pronounced Bii  wenii.  : Well, then when the witness said that one of the  films was taken overlooking Bii wenii Lake looking  north, I asked if that meant looking down the Owen  Creek and he said, "No."  You mean one of the films yesterday?  :  Yes.  The video?  :  Yes.  I don't think he was -- he was referring to Bii  wenii.  :  Well, I asked him and he said, "No.  I am talking  about Bii wenii Lake."  Well, that wasn't my understanding of the evidence.  :  Yes.  But I think if there is any doubt about that we  would --  :  Well, no.  I think that there is -- it doesn't  matter if there was any lack of communication between  the witness on that issue.  The important question is  whether I understand Bii wenii to be B-i-i w-e-n-i-i  and you say that that is correct.  That's -- that's Bii wenii and that's Owen Lake.  :  That solves my problem.  All right.  Thank you.  Yes.  :  All right.  Thank you.  13  14  15  16  MR.  RUSH:  17  THE  COURT  18  MR.  RUSH:  19  THE  COURT  20  21  MR.  RUSH:  22  23  THE  COURT  24  25  26  27  MR.  RUSH:  28  THE  COURT  29  MR.  RUSH:  30  THE  COURT  31  MR.  RUSH:  32  33  THE  COURT  34  35  MR.  RUSH:  36  THE  COURT  37  MR.  RUSH:  38  39  THE  COURT  40  41  42  43  44  MR.  RUSH:  45  THE  COURT  46  MR.  RUSH:  47  THE  COURT 1720  1 EXAMINATION IN CHIEF BY MR. RUSH:  2 Q   Now, Mr. Joseph, I want to ask you about a comment you  3 made to his lordship yesterday which apparently dealt  4 with a name that sounded like Bii wenii and do you  5 recall the question that was asked of you yesterday?  6 A   Yes.  It was -- it's Bernie Lakes.  Bernie.  7 THE COURT:  Oh.  All right.  Where in the world are the Bernie  8 Lakes?  9 A   It's the in Kweese territory.  10 MR. RUSH:  11 Q   In Kweese's territory?  12 A   Yes.  Upper and lower Bernie Lakes.  13 Q   All right.  Now, the upper and lower Bernie Lakes are  14 not close to -- well, relatively speaking, they are  15 not in Gisdaywa's territory?  16 A   No.  17 Q   Okay.  18 MR. GOLDIE:  These are no relationship to Burns Lake?  19 MR. RUSH:  No, no.  20 Q   It's a lake called Bernie lake.  I am right about  21 that?  22 A   Yes.  23 Q   It's not -- Mr. Goldie is thinking of some places  24 farther east --  25 A   Yes.  26 Q   -- is that right?  And Bernie Lake is -- where was it  27 in relation to where you and the other Wet'suwet'en  28 chief where you were located on that heli-trip?  Can  29 you tell us where the Bernie Lakes are located in  30 relation to where you were looking from?  31 A  We were looking -- we were north of Bernie Lakes  32 looking down towards Morice Lake.  33 Q   Okay.  34 THE COURT:  How do you spell Bernie, B-e-r-n-i-e?  35 A   Yes, I think it is.  36 THE COURT:  All right.  Thank you.  37 MR. RUSH:  38 Q   Now, let's -- Mr. Joseph, the heli-flight that I am  39 referring you to now is the one that we saw the video  40 of yesterday, and was it during the time of this --  41 these observations that you observed the Bernie Lake  42 or was it on the other one, the day before which is  43 the 23rd?  44 A   The 24th.  45 Q   The 24th.  All right.  Now, during the course of the  46 video tape yesterday, you took the names of the places  47 that were referred to you by Johnny David and you 1721  1 marked them down as they were being said, is that  2 right?  3 A   Yes.  4 Q   And I just want to lead you through those, if you --  5 do you have the list there in front of you?  6 A   Yes.  7 Q   Now, there were three landing points during that trip,  8 is that right?  9 A   Yes.  10 Q   And the first landing point, can you tell us where  11 that was?  12 A   That first landing point was west of the Hudson Bay  13 Mountains and a small mountain there was -- we landed  14 on was Dzel Yez.  15 MR. RUSH:   I think, my lord, I have this correct, that would be  16 222 on your list.  17 Q   Now, it's from that vantage point that you made the  18 first observation?  19 A   Yes.  2 0 Q   And that's where Mr. David on the video tape told you  21 of certain landmarks?  22 A   Yes.  23 Q   Geographic points.  All right.  Hudson's Bay Mountain  24 is the mountain just outside of Smithers, is that  25 right?  26 A   Yes.  27 THE COURT:  All right.  For the purpose of organizing my notes  28 it would be very helpful if I knew in whose claimed  29 territory that landing site was.  30 MR. RUSH:  Yes.  That was -- I am going to ask him in each case.  31 Q   Now, the place of this small mountain, as you've  32 called it, 222, in whose territory is that located?  33 A   That was right on the boundary between Wah tah Keg'ht,  34 right on the north of McDonell Lake and north of Dzel  35 yez was Wah tah Kwets territory.  36 Q   All right.  There are two Wet'suwet'en names, my lord,  37 that?  38 THE INTERPRETER:   Wah tah Kwets is 69.  Wah tah Keg'ht is 68.  39 THE COURT:  69 and 68?  40 MR. RUSH:  That's right.  41 Q   And because they sound so similar, it's perhaps  42 important to just have a look at their different  43 spelling.  Wah tah Kwets, 69, and 68, Wah tah Keg'ht.  44 You say, Mr. Joseph, this point was on the boundary  45 between the two?  46 A   Yes.  47 Q   All right. 1722  1 A  And it was --  2 Q   And just to site his lordship, in what direction from  3 Hudson's Bay Mountain in Smithers is McDonell Lake,  4 which you mentioned?  5 A  McDonell Lake is southwest of the Hudson Bay  6 Mountains.  7 Q   Okay.  Now, did you make a note of names that were  8 given on the video by Mr. David?  9 A   Yes.  He -- when they got a shot of part of McDonell  10 Lake, it's -- McDonell Lake is Sde keen t'aat.  11 Q   And I think you made mention of that in your --  12 THE COURT:  Yes, we had that yesterday.  13 MR. RUSH:  14 Q   -- evidence earlier.  Yes.  All right.  15 THE INTERPRETER:  229.  16 MR. RUSH:  17 Q   What else did he make mention of?  18 A  And he also pointed out the boundary between Wah tah  19 Kwets and Skookumwasaas.  20 Q   That's another Wet'suwet'en chief?  21 A   Yes.  Skokumwasaas is south of McDonell Lake area and  22 the mountain that separates these two was Keel Dzel.  23 Q   Keel Dzel?  24 A   Yes.  25 Q   All right.  26 THE INTERPRETER:  235.  2 7 MR. RUSH:  28 Q   And Skokumwasaas is 233.  What House is Skokumwasaas  29 in?  30 A   Hagwilget.  31 THE COURT:  I didn't get the number of the mountain which  32 separates the two territories.  33 MR. RUSH:  It was called Keel Dzel.  I think it was one of the  34 first mountains.  35 THE COURT:  I am sorry.  We have that.  222 then.  36 MR. RUSH:  No.  This is Keel Dzel.  That's 235.  37 THE COURT:  Oh.  Thank you.  3 8 MR. RUSH:  39 Q   Yes.  Mr. Joseph, what was the next that was referred  40 to?  41 A   He referred to a few mountains to the west on the  42 Gitksan area, but we did not take the names down  43 because that was being done by the Gitksan people.  44 But he pointed out a flat top mountain to the east of  45 the place where we landed and he said that it was C'en  4 6 gghe xunt' xut.  47       Q   It was again? 1723  1 A   C'en gghel xunt' xut.  2 Q   All right.  3 MR. RUSH:  I think we are going to have to have a spelling for  4 that.  5 THE TRANSLATOR:  Its C-'-e-n g-g-h-e-1 underlined, x-u-n-t-'  x-u-t.  Mr. Joseph, did that mountain have an English name to  your knowledge?  No.  Okay.  Do you know which territory that mountain is  located in?  That was in Wah tah Kwets territory.  Wah tah Kwets?  Yes.  That's 69.  All right.  What else did he point to you  that you listed there?  That is about all I have on that landing.  The second landing then?  Yes.  And where did you go on the second landing?  We landed on the south at the foot of the mountain he  called Telkwa Tl'aat.  Telkwa Tl'aat?  Tl'aat.  Yes.  Tl'aat.  All right.  :  G-l-a-t?  It is -- I think it's T-1-a-a-t, but pronounced  G-l-a-t.  Telkwa Tl'aat.  And did that vantage point have an English name?  No.  Okay.  And what did he point out from there?  He pointed out the headwaters of Milk Creek.  Yes.  And —  38 THE COURT:  I am sorry.  Mill or Milk?  39 A  Milk.  4 0 THE COURT:  Milk.  41 MR. RUSH:  42 Q   Milk?  43 A  Milk Creek.  And the mountain at the head on the  44 headwaters of that creek is he pointed out as Look  45 Dzel.  46 Q   Look Dzel?  47 A   Yes.  6  7 MR.  RUSH  8  Q  9  10  A  11  Q  12  13  A  14  Q  15  A  16  Q  17  18  A  19  Q  20  A  21  Q  22  A  23  24  Q  25  A  26  Q  27 THE  COUR1  2 8 MR.  RUSH  29  Q  30  31  A  32  Q  33  A  34  Q  35  A  36  Q  37  A 1724  1 MR. RUSH: All right.  Can you spell that, Mr. Mitchell?  2 THE TRANSLATOR:  L underlined — no.  L underlined, o-o-k  3 D-z-e-1.  4 MR. RUSH:  5 Q Did that mountain have an English name, Mr. Joseph?  6 A No.  7 Q Okay.  And whose territory, if you haven't said  8 already, is that mountain located?  9 A That would be Skokumwasaas.  10 Q Okay.  Now, did he point out another geographic  11 feature to you that you recorded?  12 A The ridge on both sides of Milk Creek he called T'se  13 Tset'il yiiyh.  14 Q T'se Tset'il yiiyh?  15 A T'se Tset'il yiiyh.  16 Q Okay.  And does that have an English name?  17 A No.  It's — it's overlooking Milk Creek, cliffs that  18 are overlooking Milk Creek.  19 MR. RUSH: Do you have that spelling for that, Mr. Mitchell?  20 Q Mr. Joseph, while Mr. Mitchell is preparing that  21 spelling, in whose territory was this mountain?  22 A Still is Skokumwasaas.  23 Q Okay.  24 THE INTERPRETER:  233.  25 THE COURT:  I am sorry?  26 THE INTERPRETER:  233.  27 MR. RUSH: Skokumwasaas.  28 THE COURT:  Oh, I am sorry.  That's the name of Skokumwasaas is  29 233.  30 MR. RUSH: Yes.  That's right.  31 THE COURT:  All right.  We are waiting for the ridge.  32 MR. RUSH: That's right.  33 THE TRANSLATOR:  T-'-s-e T-s-e-t-'-i-1-y-i-i-y-h.  34 MR. RUSH: Okay.  35 Q After that identification, Mr. Joseph, was there  36 another point shown to you?  37 A Yes.  It's second creek east of Milk Creek, the second  38 creek is a Tsai ts'e neel aa kwe.  39 Q Tsai ts'e neel aa kwe?  40 A Tsai ts'e neel aa kwe.  41 Q Okay.  Does that have an English name?  42 A It is on a map known as Tsai Creek.  43 Q Tsai Creek?  44 A Tsai Creek.  45 Q Tsai Creek?  46 A Yes.  47 Q Can you give us the spelling, Mr. Mitchell? 1725  1 THE TRANSLATOR:  Tsai tse'e neel aa kwe, T-s-a-i t-s-e-'-e n-e-e  2 underline 1 a-a k-w-e.  3 THE COURT:  And it's the L that's underlined, is it?  4 MR. RUSH:  5 Q   All right.  What else did you make a note of?  6 A  And the third creek that he mentioned was C'el ees  7 C'oo Ho Diin eh Kwe.  8 Q   Okay.  And do you know if there is an English name for  9 that?  10 A   I think it's Winfield Creek.  11 Q   Do you want to give us that name again?  12 A   The English name?  13 Q   No.  The Wet'suwet'en name.  14 A   C'el ees C'oo Ho Diin eh Kwe.  15 Q   Yes.  16 THE TRANSLATOR:  C-'-e-1 e-e-s C-'-o-o H-o d-i-i-n e-h K-w-e.  17 MR. RUSH:  18 Q   Did he point out another peak to you?  19 A   Yes.  He pointed out a peak and the peak that he  20 pointed out in English name on that on the map is  21 Howsen Peak.  22 Q   Okay.  And the Wet'suwet'en name, did he give you that  23 for Howsen Peak?  24 A   Yes.  Tseezil K'edak'.  25 Q   Tseezil?  26 A   K'edak'.  27 Q   Okay.  28 THE INTERPRETER:   238.  29 MR. RUSH:  Okay.  30 Q   Now, after pointing out Howsen Peak, did he point out  31 another geographic point that you noted?  32 A   Yes.  There were two big mountains there at the head  33 of the Telkwa River or headwaters of the Telkwa.  He  34 called De'el Kwe Tl'aat.  35 Q   And those refer to the peaks, do they?  36 A   Yes.  37 Q   In whose territory were they located?  38 A   Still on the Skokumwasaas.  39 Q   Okay.  Could you spell that for us?  40 THE TRANSLATOR:  Skokumwasaas?  41 MR. RUSH:  No.  De'el Kwe Tl'aat.  42 THE TRANSLATOR:   D-e-'-e-1 K-w-e T-l-'-a-a-t.  43 THE COURT:  I am sorry, T-l-'?  44 THE TRANSLATOR:   Yes.  4 5 THE COURT:  Yes.  46 THE TRANSLATOR:   a-a-t.  4 7 MR. RUSH: 1726  1 Q Now, did you make a note of any other name?  2 A I didn't give you the -- he said that Kweese owned the  3 Howsen Peak.  It was in Kweese territory.  4 Q In Kweese's territory?  5 A Yes.  6 THE INTERPRETER:   Kweese, 38.  7 MR. RUSH: Okay.  8 Q Now, did he give you any other names that you recorded  9 at that site or was that all that was recorded?  10 A Yes, that was all at that landing.  11 Q Okay.  Now, you went to the third landing?  12 A Yes.  13 Q And was this -- where was this located?  14 A That we moved about a mile south of that point at  15 a place where we could overlook the Bernie Lakes and  16 surrounding territories.  17 Q And is the place that you landed, was that Herdome?  18 A No.  19 Q It wasn't?  2 0 A You couldn't see Herdome from there.  21 Q The place that you landed there was somewhere in  22 relation to Herdome?  23 A Yes.  North of Herdome.  24 Q Are you able to identify the place by a name?  25 A The alpine below or just about where we landed where  26 the caribou was was he referred it as Tl'oo c'us'aay.  27 Q And that's close to where you landed on this third  28 landing, is that right?  29 A Yes.  30 Q Okay.  I think you'll have to tell us that, Mr.  31 Mitchell?  32 THE TRANSLATOR:   Tl'oo c'us'aay?  33 A Tl'oo c'us'aay.  34 THE TRANSLATOR:  Tl'oo c'us'aay, T-l-'-o-o c-'-u-s-'-a-a-y.  35 MR. RUSH:  36 Q Now, did Johnny David point out Herdome to you?  37 A No.  He didn't, but I knew because we landed a day  38 before on Herdome.  39 Q You knew Herdome?  40 A Yes.  41 Q Did you know Herdome by its Wet'suwet'en name?  42 A Yes.  43 Q And what was that?  44 A Wo' betl'eet.  45 Q That's 237.  All right.  After Johnny pointed out the  4 6 Meadow to you --  47 A That was — what? 1727  1 Q Johnny David pointed the Meadow out to you that you  2 just described?  3 A That's Tl'oo c'us'aay.  4 Q That's right.  That's the one we just had.  Now, after  5 that did he point out any other features to you?  6 A I think we moved to another location after that.  7 Q Okay.  And are you able to say where?  8 A It was overlooking the lake.  9 Q Which lake?  10 A It is sometimes known as it has three different names.  11 One of them used to be Howsen Lake and then sometimes  12 it is known as Mooseskin Johnny Lake.  But the way our  13 people describe that lake is Neel gii t'aat.  14 Q 239.  15 THE COURT:  When you say you moved to another location, you mean  16 you moved the helicopter?  17 A Yes.  18 THE COURT:  And it was the fourth stop.  And we saw film from  19 the fourth location as well.  20 A Yes.  21 THE COURT:  Thank you.  22 MR. RUSH:  23 Q And in whose territory is Mooseskin Johnny Lake or  24 Howsen Lake or Neel gii t'aat?  25 A That's right on the boundary and it is between Kweese  2 6 and Wah tah Keg'ht.  27 Q Wah tah Keg'ht?  28 A Yes.  29 THE INTERPRETER:  38 and 68.  3 0 MR. RUSH:  31 Q All right.  And did he show you -- is it from this  32 point that he showed you the Bernie Lakes?  33 A No.  34 Q Okay.  35 A It's the further east.  36 Q Okay.  What did he show you at this point?  37 A He showed a ridge just east of where we landed and it  38 was hard to see that -- it was just on the video, it  39 was a little bit shady.  It was getting to be towards  40 the evening.  And that ridge he called C'elee t'sel  41 Ts'ewx.  42 Q Does that ridge have an English name to your  43 knowledge?  44 A No.  45 Q Would you just repeat that again?  46 A C'elee t'sel Ts'ewx.  47 MR. RUSH:   Okay.  Mr. Mitchell, can you help us with that? 172?  1 THE TRANSLATOR:  C'elee t'sel Ts'ewx?  2 A   Ts'ewx.  3 THE TRANSLATOR:  Ts'ewx?  4 A   Yes.  5 MR. RUSH:  6 Q   The territory, where that's located, Mr. Joseph?  7 A   That's — that would be Wah tah Keg'ht.  8 Q   Wah tah Keg'ht's territory?  9 A   Yes.  10 THE TRANSLATOR:  C'elee t'sel Ts'ewx.  C-'-e-l-e-e t-'-s-e-l  11 underlined T-s-'-e-w-x.  12 MR. RUSH:  13 Q   Did he point out other territory that you noted?  14 A   Yes.  15 Q   What's next one you noted?  16 A   Yes.  He pointed out two small mountains southwest of  17 Neelgii t'aat and those two small mountains --  18 THE COURT:  I am sorry.  Just a minute.  19 MR. RUSH:   Neelgii t'aat was Mooseskin Johnny Lake or Howsen  20 Lake which was 239.  21 THE COURT:  Thank you.  22 MR. RUSH:  23 Q   And what he pointed out was in what direction from  24 then?  25 A   Southwest —  2 6       Q   All right.  27 A   Or southeast.  28 Q   Southeast?  29 A  And he said those two small mountains were Wah tah  30 Keg'ht ba Dzel.  31 THE TRANSLATOR:  W-a-h t-a-h K-e-g-'-h-t B-a-d-z-e-1.  32 THE COURT:  B-a-d-z-e-1.  33 THE TRANSLATOR:  Yes.  34 THE COURT:  Thank you.  How does that translate, Mr. Joseph?  That means that mountain belongs to Chief Wah tah  Keg'ht.  Okay.  Now, did he point anything else out?  The last one that he pointed out was the two small  lakes south of Neelgii t'aat, which was right on the  boundary between Kweese and Wah tah Keg'ht.  He called  those two small lakes Bii Hool Diil.  Bii Hool Diil?  Yes.  46 THE TRANSLATOR:  Bii Hool Diil?  47 A   Bii Hool Diil.  35 MR.  RUSH  36  Q  37  A  38  39  Q  40  A  41  42  43  44  Q  45  A 1729  1 THE TRANSLATOR:  Bii Hool Diil, B-i-i H-o-o-1 D-i-i-1,  2  MR.  RUSH:  3  Q  4  A  5  6  7  8  Q  9  A  10  Q  11  12  13  A  14  15  Q  16  17  A  18  Q  19  20  A  21  Q  22  23  A  24  Q  25  A  26  Q  27  A  28  Q  29  30  31  A  32  Q  33  34  35  THE  COURT  36  MR.  RUSH:  37  THE  COURT  38  39  MR.  RUSH:  40  A  41  THE  COURT  42  43  THE  INTER  44  THE  COURT  45  THE  INTER  46  THE  COURT  4 7 MR.  All right.  And was that all that he pointed out?  Another thing that he pointed out was that the whole  range from east -- from Madeek's territory in the east  side Tsee ta dii d'aayh down to Neelgii t'aat, the  whole range was called Nelgii.  The range was called Nelgii?  Yes.  Okay.  Now, which of Neelgii t'aat was Mooseskin  Johnny Lake?  Is it related to the Nelgii that he  pointed out?  Yeah.  The way Neelgii t'aat means at the foot of  Nelgii.  But in this case Johnny was pointing out the entire  range?  Yes.  The whole range.  And is that a range that crossed over several  different territories of the Wet'suwet'en chiefs?  Yes.  And you pointed out -- you gave us a name that was on  the Madeek's territory?  Yes.  Would that be farther west?  No.  That's farther east.  Farther east, excuse me.  Yes.  Yes.  And the point that you identified in Madeek's  territory that was farther east, what was the name  that you gave us there?  Bex c'ediil yes.  That was a name Bex c'ediil yes that you gave us  yesterday in your testimony.  I think it's 213, my  lord.  I am sorry, Mr. Rush, but I am lost.  The range runs from west to east.  Yes.  I don't think I have the name of the range  yet.  Nelgii.  Nelgii.  Well,  either.  RETER:  Sorry?  RETER:  304.  Not 239?  RUSH:  239 is the lake, but Nelgii is the name for the  unfortunately I don't know what that is  It's a number.  304. 1730  1  2  3  THE  COURT  4  5  6  7  8  9  MR.  RUSH:  10  THE  COURT  11  12  13  14  15  A  16  MR.  RUSH:  17  THE  COURT  18  MR.  RUSH:  19  20  THE  COURT  21  MR.  RUSH:  22  Q  23  A  24  Q  25  26  27  A  28  Q  29  A  30  Q  31  32  33  A  34  Q  35  36  A  37  Q  38  39  A  40  Q  41  42  A  43  Q  44  45  A  46  Q  47  range, so the spelling is the first part of Neelgii  t'aat.  :  I am not able to translate those words, Mr. Rush,  into English, because it would be meaningless when I  come to look for it if I don't have it precisely as it  appears on the list and as it's going to appear in the  transcript.  So at the moment I am sorry I am very  very regretful to have to slow things down even more.  I think the responsibility is mine here.  :  Now, I have a note that the whole range from  Madeek's territory in the east to what I call Howsen  Lake, because that's a name that I can relate back to  was called something.  I haven't got the name of that  range.  Nelgii.  It's N-e-1-g-i-i.  :  Thank you.  And on the revised listing on the Wet'suwet'en words  for Gisdayway it is 304.  :  Thank you.  And that Nelgii is known as the Telkwa Range?  Yes.  Okay.  And on the eastern side of that, the mountain  that you identified for us as being in Madeek's  territory?  Yes.  Was Bex c'ediil yes?  Yes.  And that is -- we had testimony of that yesterday.  It's number 213.  Did that complete the names that you  were given on that trip with Johnny David?  Yes.  Now, later in the fall of 1983 you went on another  helicopter trip?  Yes.  And I understand you went with Bazil Michell and Jimmy  Morris on that occasion?  Yes.  And at that time you went to a place that was north of  the town of Smithers in the Cronin Range?  Yes.  And is the Cronin Range that collection of mountains  just on the north side of Smithers?  Yes.  Okay.  And did Bazil and Jimmy tell you the names of  some of the boundaries that are in that area and some 1731  1 of the geographic landmarks?  2 A Yes.  3 Q Okay.  And I think you told us yesterday that the  4 Cronin Mountain was a place where you had once  5 hunted --  6 A Yes.  7 Q — yourself in the 1940s?  8 A Yes.  9 Q And that you hunted on the northern slope of Cronin  10 Mountain?  11 A No, the southern.  12 Q Southern slope?  13 A Yes.  14 Q Okay.  And on this occasion did you -- you flew your  15 helicopter out to a slope on the side of Cronin  16 Mountain?  17 A Yes.  18 Q And can you tell us where it was that you landed?  Is  19 there a reference point that you can help us with?  20 A We landed on the south slope of the Cronin Mountain.  21 Q And you could look in what direction from that vantage  22 point?  23 A We intended to look up into the Silver King Basin, but  2 4 we couldn't.  25 Q Okay.  2 6 A A fog came in.  27 Q Okay.  Were you able to look in the direction of  28 Debencher Peak?  29 A No.  Not from the southern landing point.  30 Q Were you able to identify any points from the  31 southern?  32 A No.  33 Q Okay.  Did you --  34 THE COURT:  Can you tell me in whose territory you were in then?  35 A Wah tah Keg'ht  36 THE INTERPRETER:   68.  37 THE COURT:  68?  3 8 MR. RUSH:  Yes.  39 Q Now, you couldn't identify anything from the southern  40 slope landing points?  41 A Yes.  42 Q Did you move around on the north?  43 A We moved to the north, yes.  44 Q Okay.  And what were you able to identify from there?  45 A We identified the boundary between the Wet'suwet'en  4 6 and Babine.  47 Q The Babine Peak? 1732  1  A  2  Q  3  A  4  Q  5  A  6  Q  7  8  A  9 MR.  RUSH  Yeah.  Wu 'en wet'iy.  The which?  Wu 'en wet'iy.  Wu 'en wet'iy?  Yes.  That is the name of the people living to the east of  the Wet'suwet'en?  Yes.  All right.  Maybe you can just give us a spelling of  10 that.  11 THE TRANSLATOR:  Wu 'en wet'iy?  12 A   Yes.  13 THE TRANSLATOR:  Wu 'en wet'iy, W-u-'-e-n w-e-t-'-i-y.  14 THE COURT:  i-y?  15 THE TRANSLATOR:  Yes.  16 MR. RUSH:  Now, were you able to identify any points, landmark  points there?  That is what we wanted to see was the boundary between  Wu'en wet'iy and Wet'suwet'en, so we moved to the west  on another peak.  This is a third point?  Yes.  Okay.  And could you see any landmarks there?  We landed on a peak they called -- Jimmy called Hanee  C'et gghexw?  PRETER:  242.  And does Hanee C'et gghexw have an English name?  Yes.  What's that?  Debencher Peak.  And was the area of Hanee C'et gghexw known for its  hunting potential?  Yes.  What was hunted there?  Mountain goat.  And what was unique about that particular area?  That allowed for the hunting of mountain goat.  The  hunters, they separated to -- it has a very flat top  on the -- this Debencher Peak.  The top of it is flat  and then the south slope is sort of straight down  cliffs.  Could you observe this when you were there?  Yes.  And the hunters stay on top, most of the hunters, and  one or two hunters go down around below the cliffs and  17  Q  18  19  A  20  21  22  Q  23  A  24  Q  25  A  26  27 THE  inte:  2 8 MR.  RUSH  29  Q  30  A  31  Q  32  A  33  Q  34  35  A  36  Q  37  A  38  Q  39  A  40  41  42  43  44  Q  45  A  46  Q  47 1733  1 they then scare the goats from down below there and  2 that's when the goats run up the cliff and as they  3 come over the -- from down below, the hunters up there  4 are waiting for them and that's where they shoot them  5 and that's why the name is Hanee C'et gghexw, meaning  6 coming -- something coming from down below and over  7 the top.  8 Q   That's the meaning of Hanee C'et gghexw?  9 A   Yes.  10 Q   Were you able to identify any other mountains or  11 landmarks from that vantage point?  12 A   Yes.  There was a mountain just west of where we  13 landed and Jimmy pointed out that mountain as Son  14 Dzel.  15 Q   Son Dzel?  16 A   Son Dzel.  17 Q   Okay.  That's the name we don't have in our list, Mr.  18 Mitchell.  Son Dzel.  19 A   Dzel.  20 THE TRANSLATOR:  Son Dzel?  21 A   Son Dzel.  22 THE TRANSLATOR:  Son Dzel.  S-o-n D-z-e underline 1.  2 3 MR. RUSH:  24 Q   And that "Dzel" here means "mountain"?  25 A   Yes.  26 Q   We are talking about Son Mountain?  27 A   Yes.  28 Q   You could see this off to the west?  29 A   Yes.  30 Q   Okay.  Were there other mountains that you could see  31 to the west from where you were located?  32 A   Yes.  He pointed out some more mountains further west.  33 I think one of them was Hadat'enee?  34 THE INTERPRETER:  243.  35 MR. RUSH:  36 Q   And was that in the Evelyn area?  37 A   Yes.  38 Q   And was Hadat'enee, was that in the -- similarly in  39 the territory of Wah tah Keght, or was it beyond that  40 territory?  41 A   It was beyond.  42 MR. GOLDIE:  My lord, I wonder if Mr. Joseph would say whether  43 the placing of a geographic landmark in a territory  44 was something told to him by another witness or  45 whether given the name he places the territory -- the  46 landmark in somebody's territory of his own knowledge.  47 I am not sure the degree to which he is relying on the 1734  1  2  MR.  RUSH:  3  Q  4  5  6  A  7  8  Q  9  A  10  Q  11  12  A  13  Q  14  15  A  16  Q  17  THE  COURT  18  19  MR.  RUSH:  20  Q  21  22  A  23  24  THE  COURT  25  A  26  THE  COURT  27  MR.  RUSH:  28  Q  29  A  30  Q  31  A  32  Q  33  A  34  Q  35  A  36  Q  37  A  38  Q  39  A  40  41  Q  42  43  44  A  45  Q  46  A  47  informant.  Mr. Joseph, did you know the mountain -- let's go back  to Son Dzel.  Did you know that mountain beforehand,  before it was identified to you on this occasion?  I was given the names but not the locations.  That's  why I was up in the helicopter.  So you knew the name Son Dzel?  Yes.  And when was -- it was pointed out to you, it was  pointed out as to where it was located?  Yes.  All right.  And what about the name of Hadat'enne?  Is  that a name that you knew beforehand?  Yes.  Yes.  Okay.  :  Mr. Goldie's question is:  Did you know in whose  territory it was?  Well, maybe we will deal with them one by one.  Son  Dzel, do you know whose territory?  Yes.  It was the -- it was on a boundary between Woos,  part of Woos hunting territory.  :  Woos and who?  Woos or Woos, Chief Woos.  :  Yes.  And he said --  Madeek was in there, too.  So Madeek and Woos?  Yes.  Are they to be considered --  Yes.  -- the same for these purposes?  Yes.  But you say it was on the boundary?  Yes.  The boundary with what other territory?  The north of that was out of our territory, out of the  Wet'suwet'en territory.  Okay.  Now, was that fact of where Son Dzel was  located, was that told to you at that time by either  Jimmy Morris or Bazil Michelle?  Yes.  Jimmy.  Okay.  And what about Hadat'enne?  Hadat'enne was further west and he said that it was  Caspit's territory. 1735  1  Q  2  A  3  Q  4  5  6  A  7  Q  8  9  A  10  11  Q  12  13  A  14  15  Q  16  THE  COURT  17  MR.  RUSH:  18  THE  COURT  19  MR.  RUSH:  20  21  THE  COURT  22  MR.  RUSH:  23  Q  24  25  A  26  27  Q  28  A  29  Q  30  A  31  32  Q  33  A  34  Q  35  36  A  37  Q  38  A  39  Q  40  A  41  Q  42  A  43  Q  44  A  45  Q  46  A  47  Q  Okay.  And Caspit's in which House?  Goohlaht.  Okay.  Now, I think you also mentioned another  mountain while we are dealing with the mountains,  Hanee C'et gghexw?  Yes.  That, I take it, was closer to the the place where you  were actually making the sightings?  Yes.  We were right on the western -- west side of  Hanee C'et gghexw.  Was Hanee C'et gghexw a place that you knew before you  went up there with --  There again, there is stories about being told about  how they hunted in that area.  Okay.  :  I am sorry, Mr. Rush, I am lost again.  Hanee C'et gghexw was 242.  :  Thank you.  It was the first in the sequence of three  mountains.  :  Yes.  Thank you.  Now, these stories that you heard were stories from  whom?  From -- well, it's -- all the people talk about that  area, all the hunters that I've talked to.  Had you heard --  Johnny David and Jimmy and Bazil.  Anyone from your clan, did they talk about this?  Yes.  My uncle used to talk about it.  Because it  was -- all the people went over there to hunt.  This is Debencher Peak we are talking about?  Yes.  All right.  Now, at the time that you went to Hanee  C'et gghexw, did you know whose territory it was in?  Yes.  And whose territory was that?  It was part of Woos' territory.  And part of somebody else's?  Yes.  Madeek.  Okay.  Was it part of anybody else's territory?  Eastern part would be Wah tah Keg'ht.  Eastern?  Eastern, yes.  Southeast.  Okay.  Wah tah Keg'ht?  Yes.  That's 68.  Okay.  All right.  Now, did you know 1736  1 that -- Debencher Peak is not a mountain you could  2 miss, I take it?  3 A Yes.  4 Q Yes, you could miss it?  5 A No.  You can't miss it, no.  6 Q Did you know before you went there whose territory --  7 A Yes.  8 Q -- this mountain was in?  9 A Yes.  Yes.  That's —.  10 Q Were any other sightings given to you by Bazil or  11 Jimmy when you are on Debencher Peak that day?  12 A I knew -- I heard people talking about a small lake or  13 the north slope of Hadat'enee and as we flew over  14 Jimmy pointed that lake out to me.  15 THE COURT:  I am sorry.  It's on the north slope of what, of  16 Debencher Peak?  17 A The north slope of Hadat'enee.  18 MR. RUSH:  19 Q Of what?  20 A Hadat'enee.  21 Q You flew over Hadat'enee?  22 A Yeah.  As we were leaving.  23 Q Okay.  That's 243.  We have left Debencher Peak?  24 A Debencher Peak.  Yes.  25 Q And we did a pass-over of Hadat'enee, is that right?  2 6 A Uh-huh.  27 Q And you knew there was a lake down there?  28 A Yes.  29 Q Did you know either the Wet'suwet'en or English name  30 for the lake?  31 A Yes.  It's Lots'wenii?  32 THE INTERPRETER:  245.  33 MR. RUSH:  34 Q Do you know -- did you know the Wet'suwet'en name  35 before you got up there?  36 A Yes.  37 Q Okay.  And I take it you didn't know where it was?  38 A Yes.  I didn't know before.  39 Q Okay.  And did Bazil point it out to you?  4 0 A Jimmy.  41 Q Jimmy did?  42 A Yes.  43 Q Okay.  And were you able to say in whose territory it  44 was located?  45 A That was Caspit.  46 Q Okay.  Now, were you shown any other landmarks?  47 A He pointed out another peak closer to Moricetown and 1737  1 that one he said was was Dzel Teel.  2 THE INTERPRETER:  215.  3 MR. RUSH:  No, no.  4 THE INTERPRETER:  No?  5 MR. RUSH:  6 Q   Can you spell -- or can you just tell us again the  7 name of that?  8 A   Dzel Teel.  9 MR. RUSH:   Okay.  Could you spell that?  10 THE INTERPRETER:   Spelt the same as 215?  11 MR. RUSH:  Did you know the name of that?  Seaton Mountain.  Okay.  215 is a -- is Morice Mountain which is spelled  Dzel Teel?  Yes.  Almost identical?  Yes.  It's -- it just it means wide mountain and  Morice Mountain is the same.  Okay.  And this mountain is referred to as that is  Seaton Mountain?  Yes.  Is referred to as --  Dzel Teel.  Okay.  26 THE COURT:  Have you got that, Madam Reporter?  27 THE REPORTER:  Yes, my lord.  2 8 MR. RUSH:  And that mountain was close to --  Moricetown.  -- the Village of Moricetown, is that right?  Yes.  Did you know the name of that before you went out on  that?  Yes.  Jimmy pointed that out from Moricetown.  And what happens during the course of your -- again  with where you were flying over the area?  Yes.  Did he make any other sightings for you?  No.  Did that complete then --  Yes.  -- what you did that day?  Yes.  Okay.  And Dzel Teel, that's located in whose  territory?  12  Q  13  A  14  Q  15  16  A  17  Q  18  A  19  20  Q  21  22  A  23  Q  24  A  25  Q  29  Q  30  A  31  Q  32  A  33  Q  34  35  A  36  Q  37  38  A  39  Q  40  A  41  Q  42  A  43  Q  44  A  45  Q  46  47 173?  1  A  2  Q  3  MR.  GOLDI  4  5  6  MR.  RUSH:  7  Q  8  MR.  GOLDI  9  MR.  RUSH:  10  A  11  MR.  RUSH:  12  Q  13  A  14  Q  15  A  16  Q  17  18  19  20  A  21  Q  22  23  24  A  25  Q  26  A  27  Q  28  29  A  30  Q  31  32  33  A  34  35  Q  36  37  A  38  Q  39  THE  COURT  40  A  41  MR.  RUSH:  42  Q  43  A  44  Q  45  A  46  Q  47  THE  COURT  That one I think was still in Caspit's.  Okay.  £:  Could we not be clear on this, my lord, the source  of what the witness' information about the place of  the placing within a territory?  He said he thought it was in Caspit's.  Do you know --  £:  No, no.  The source of his information.  All right.  I understand what you are saying.  Jimmy's the one that said that.  Okay.  And his father was related to Caspit.  Okay.  That did that complete your --  Yes.  -- sightings then?  All right.  Mr. Joseph, I want to  ask you if there was one trip that you took that we  neglected to talk about in chronological sequence  yesterday into the area of the Kitsegukla Valley.  Yes.  And I think this occurred earlier in August, about  August the 8th of 1983.  Did you go to the area of  Kitsegukla Lake?  Yes.  And did you go there with Bazil?  Yes.  And was this a helicopter flight or how did you get  into the area?  No.  We drove in.  All right.  And in the -- did Bazil identify some of  the creeks and mountains and lakes in there?  What did  he identify for you, if anything?  Yes.  He identified the boundaries to the west of his  territory and that was Kitsegukla Lake.  And had Bazil -- was he in the House of the owner of  this or was he the owner of this area?  Yes.  Okay.  :  Which?  That was Wah tah Keg'ht.  68.  He's in the house of Wah tah Keght?  Yes.  And was Bazil using that area?  Yes.  And —  :  Was he the chief? 1739  1 A   Bazil is not a chief.  Wah tah Keg'ht is a chief.  2 MR. RUSH:  3 Q   And Wah tah Keg'ht is Henry Alfred?  4 A   Yes.  5 Q   But he is one of the chiefs in Henry's House?  6 A   Yes.  7 THE COURT:  Can you tell me just so I can locate myself, is  8 Kitsegukla Lake down by Kitsegukla?  9 A   It's halfway up the Kitsegukla Valley between  10 Moricetown and Kitsegukla.  It's south -- it will be  11 south of Moricetown.  The whole valley is Kitsegukla  12 Valley.  13 THE COURT:  That's nothing to do with the Village of Kitsegukla  14 down in the Skeena?  15 A  Well, no.  Some of the people own territory in there.  16 THE COURT:  Yes.  But just to place myself geographically, I  17 shouldn't be thinking of the Skeena River --  18 A   No.  19 THE COURT:  — and the Village of Kitsegukla?  2 0       A   No.  21 THE COURT:  All right.  Thank you.  22 MR. RUSH:  The Kitsegukla Valley runs in a southwesterly  direction from about Moricetown, the Moricetown area  towards the Skeena?  Yes.  On the southwest, is that right?  Yes.  And this is quite a large valley, is it?  Yes, it is.  And Bazil took you down this valley to a point on the  west?  Yes.  And the point on the west was the Kitsegukla Lake?  Yes.  Now, just again in order to site his lordship, was  this Kitsegukla Lake, is it approximately in very  rough terms an equal distance between the Skeena River  on the west and Moricetown?  Yes.  Now, is the eastern side of that -- Kitsegukla Lake,  is that a boundary, by the way?  Yes.  Okay.  Can you say is it the eastern side that is  Wet'suwet'en?  Yes.  Okay.  And that is that eastern side the Wah tah  23  Q  24  25  26  A  27  Q  28  A  29  Q  30  A  31  Q  32  33  A  34  Q  35  A  36  Q  37  38  39  40  A  41  Q  42  43  A  44  Q  45  46  A  47  Q 1740  1 Keg'ht territory that you have talked about?  2 A   Now, did he point out some locations or landmarks to  3 you in the course of that journey on August 8th?  4 A   Yes.  He said that the west end of Kitsegukla Lake is  5 where a chief from Kitsegukla had his cabin and he had  6 his on the east, east end of that lake.  7 Q   So one of the chiefs of Kitsegukla had his cabin on  8 one end?  9 A   Yes.  10 Q   And the chief from Moricetown, Bazil, had his cabin on  11 the other?  12 A   Yes.  13 MR. GOLDIE:  I am sorry, did the witness say Bazil had his cabin  14 there?  15 MR. RUSH:  I can ask him.  16 MR. GOLDIE:  Well, I do ask you not to lead.  17 MR. RUSH:  18 Q   All right.  19 A   Yes.  I said that Bazil had his cabin on the east end  20 and the Gitksan chief had his cabin on the west.  21 Q   And the Gitksan chief that you are talking about, what  22 was that chief's name?  23 A   Guxsan.  24 THE INTERPRETER:  16.  25 MR. RUSH:  That will be on your plaintiff's list.  26 MR. GOLDIE:  Will you please identify the source of his  27 information for the name of that chief.  2 8 MR. RUSH:  29 Q   How do you know Guxsan?  How -- firstly do you know  30 the present holder of the name Guxsan?  31 A   Yes.  32 Q   How do you know him?  33 A   I have known him for quite a long time.  34 MR. GOLDIE:  My lord, my concern is not how long he knows the  35 chief.  My concern is the source of the information  36 that the cabin that at the west end of the lake  37 belonged to that particular chief.  That's all I  38 wanted to know.  39 MR. RUSH:  Okay.  I didn't understand that.  But I would assume  40 that the name of Gitksan chief in this witness' mind  41 might be a notorious fact.  42 MR. GOLDIE:  It may well be.  That's not the — that's not my  43 concern.  We are talking about identifying the source  44 of information of the witness' evidence.  45 MR. RUSH:  Yes.  Yes.  I —  46 MR. GOLDIE:  And we are not talking about the name of a chief.  47 We are talking about the source of the information 1741  1  2 MR.  RUSH:  3  4 THE  COURT  5 MR.  RUSH:  6  Q  7  8  9  A  10  Q  11  A  12  Q  13  14  A  15  Q  16  A  17  Q  18  19  A  20  Q  21  A  22  Q  23  A  24  Q  25  26  A  27  Q  28  29  A  30  31  Q  32  33  A  34  35  36  Q  37  A  38  Q  39  40  A  41  Q  42  A  43  44  45  46  Q  47  A  that that chief owned that cabin.  Well, it might be that there was a bit of confusion  over your interjection.  :  Gentlemen, let's get on with the evidence, please.  Mr. Joseph, can you tell us your knowledge about the  cabin site of Bazil Michell.  How did you know about  where that cabin site was located?  Because we drove right up to the lake.  And did somebody point out that cabin site to you?  Bazil himself.  Now, you told us that Guxsan had a cabin site at the  other end of the lake?  Cabin site.  A cabin site?  Yes.  Yes.  And did -- how did you know about where that was  located?  He pointed it out.  The "he" being Bazil?  Yes.  Okay.  He told you it was at that point, did he?  Yes.  Before that time did you know about either of those  two cabin sites from some other source?  Yes.  What was your source of knowledge about the two cabin  points beforehand?  Some of the people like that used the area said that  there was cabin there and that was the boundary.  Okay.  Now, in the course of this trip, did Bazil  point anything else out to you?  He pointed the southern boundary between the territory  he was using and the people on the other on the south  side.  Okay.  And who are the people on the south side?  They were the Gitksan.  Okay.  And the, did he identify the southern boundary  by any geographic point?  Yes.  What was that?  He said that Dzel yez was the southern boundary and  there was Gitksan people on the south side and Dzel  yez itself was also the boundary between Wah tah  Keg'ht and Wah tah Kwets.  So it was in effect a point of meeting of three areas?  Yes.  Yes. 1742  1 Q   Now, can you give us the name again, please?  2 A   Dzel yez.  3 THE INTERPRETER:  222.  4 THE COURT:  322?  5 THE INTERPRETER:  222.  6 MR. RUSH:  222.  7 Q   And he pointed that mountain out to you, did he?  8 A   Yes.  9 Q   And —  10 THE COURT:  I am sorry, the other two again are?  11 MR. RUSH:  There was the boundary, as I understood.  12 THE COURT:  The Wet'suwet'en chiefs we had a moment ago and they  13 are spelled -- ?  14 MR. RUSH:  Wah tah Keg'ht, which is 68.  15 THE COURT:  And 69, was it?  16 MR. RUSH:  And 69 Wah tah Kwets.  17 THE COURT:  Thank you.  18 MR. RUSH:  19 Q   And then the Gitksan.  Yes.  Did he point anything  20 else out to you at that time indicating a boundary on  21 that southern line?  22 A   He said that was the boundary and he pointed out  23 mountains in the north -- north of Kitsegukla Lake.  24 Q   Okay.  Now, north of Kitsegukla Lake, what mountains  25 did he direct you to?  26 A   There is a very pointed peak north of that area there  27 and he said that was Tsee ggewx.  28 Q   Tsee ggewx?  29 A   Tsee ggewx.  30 MR. RUSH:   All right.  We are going to have to have a spelling  31 for that.  32 THE TRANSLATOR:  Tsee ggewx.  T-s-e-e g-g-e-w-x.  33 THE COURT:  I am sorry.  g-g-e-w-s?  34 THE TRANSLATOR:  X.  35 THE COURT:  Thank you.  3 6 MR. RUSH:  37 Q   Was there an English name for that that you know of?  38 A   I for -- there is a name, but it's some peak and I  39 don't know.  I forget the English name.  40 Q   Okay.  And did he point out any other -- by the way,  41 was this the territory where -- was this the territory  42 he was using?  43 A   Yes.  44 Q   Okay.  Did he point out anything else?  45 A   There was another small lake east of Kitsegukla Lake,  46 and he said that one was Taal ts'en.  47 Q   Taal ts'en Lake? 1743  1 A Yes.  2 MR. RUSH: Mr. Mitchell?  3 THE TRANSLATOR:  Taal ts'en?  4 A Taal ts'en.  5 THE TRANSLATOR:  Taal ts'en, T-a-a-1 underline, t-s-'-e-n.  6 MR. RUSH:  7 Q Did he point out any other creeks or lakes or  8 mountains?  9 A West, I think -- no, east of this lake I am talking  10 about is another small mountain just about in the  11 middle of a valley.  12 Q This is east of the lake?  13 A East, yes.  14 Q And that would be east of Kitsegukla Lake then, would  15 it?  16 A Yes.  17 Q All right.  18 A There is a mountain that he pointed out.  He called  19 that small mountain at that time Ts'ee Tsa tl'eet.  20 THE INTERPRETER:  227.  21 MR. RUSH:  22 Q And in whose territory was that?  23 A That was in Bazil's territory.  24 Q The same territory we are talking about?  25 A Yes.  Yes.  26 THE COURT:  I am sorry.  I missed that?  27 MR. RUSH: He said Bazil's.  It's the same territory.  28 A Bazil's.  2 9 THE COURT:  Thank you.  3 0 MR. RUSH:  31 Q Did he point out any other mountains or hills in that  32 area?  33 A This -- then we moved further out to the -- to the  34 Highway 16 and he pointed out the small mountain west  35 of a small hill west of Trout Creek area and he  36 pointed out a small hill and said that was -- they  37 call it Ba ghat deggii ts'o yi'?  38 THE INTERPRETER:  224.  3 9 MR. RUSH:  40 Q Did you know the name of that mountain or hill,  41 rather, I think you said it was, did you know the name  42 of that before?  43 A Well, yes.  People told me about that.  44 Q All right.  And you knew the place of this hill?  45 A Yes.  46 Q And did Bazil identify the name with the place, is  47 that what he did? 1744  1 A   Yes.  2 Q   How was it that you knew the name of the -- this name  3 before?  4 A  Well, it's right by the road.  And when I took Johnny  5 out in the territory on our way back he always talked  6 about -- said it was a berry picking place.  That's  7 why the name.  8 Q   All right.  And was there any other hill in the area  9 that he -- Bazil on this occasion --  10 A   Yes.  11 Q   -- pointed out to you?  12 A   He pointed out another small hill south of this one  13 that he told me about and that one he called  14 Ooniin'aay?  15 THE INTERPRETER:  225.  16 MR. RUSH:  17 Q   And in order to position us in terms of our geographic  18 knowledge, how far in distance would that be from  19 Moricetown?  2 0       A   Be two miles.  21 THE COURT:  Which direction?  22 A   East of Moricetown.  2 3 MR. RUSH:  24 Q   Is that -- is it close to Highway 16?  25 A   Yes.  Visible from Highway 16.  26 Q   And again the territory that that was located on?  27 A   That's in Bazil's territory.  28 MR. GOLDIE:  My lord, I have to repeat my request.  29 THE COURT:  Yes.  Is that because you know that because he told  30 you that?  31 A   Yes.  He was standing there pointing out these  32 mountains, hills.  33 THE COURT:  Is it a convenient place to take the adjournment?  34 MR. RUSH:  Yes.  35 THE COURT:  All right.  We will take the morning adjournment.  36 (PROCEEDINGS ADJOURNED PURSUANT TO MORNING BREAK)  37  38 I hereby certify the foregoing to be  39 a true and accurate transcript of the  40 proceedings herein to the best of my  41 skill and ability.  42  43 Laara Yardley,  44 Official Reporter,  45 United Reporting Service Ltd.  46  4 7 (PROCEEDINGS RECONVENED PURSUANT TO THE MORNING 1745  Alfred Joseph (for Plfs.)  In chief by Mr. Rush  1 ADJOURNMENT)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Mr. Rush.  5 MR. RUSH:  6 Q Mr. Joseph, you gave us the name of Evelyn Mountain in  7 your testimony this morning as Dzel teel I think you  8 said?  9 A Dzel teel.  10 Q Yeah.  Now, I understand that you have thought about  11 that, and the -- and there is a different name for  12 that, is there?  13 A Yes.  14 Q What is it that you remember the name to be?  15 A Ts'in teel.  16 Q Ts'in teel?  17 A Yes.  18 MR. RUSH: Okay.  Would you spell that, please?  19 THE TRANSLATOR:   Ts'in teel, T-s-'-i-n t-e-e-1.  2 0 MR. RUSH:  21 Q And was that the name that you were given or did you  22 know that name from another source?  23 A That was a name that I -- I knew before.  Like if  24 you -- it's so close to -- to Moricetown that you can  25 just ask anyone and they'd know that mountain.  26 Q You had just -- you had told us that you had completed  27 the trip that you'd made with Bazil Michell into the  28 Kitsegukla Valley?  29 A Yes.  30 Q And were there any other -- any other names that were  31 given to you by Bazil Michell on that trip that you  32 haven't mentioned?  33 A No, that was all that I got from him that day.  34 Q Okay.  And I want to ask you if you know what Bazil's  35 name -- Wet'suwet'en name is?  3 6       A Hadakamah.  37 THE INTERPRETER:  223.  3 8 MR. RUSH:  39 Q 223.  Now, of what House is that name?  40 A Wah tah keg'ht.  41 Q Wah tah keg'ht?  42 A Yeah.  43 Q Now, what is Bazil's House.  Do you know that?  44 A He's —  45 THE COURT:  I'm sorry, I took it that his House was Wah tah  46 keg'ht.  47 MR. RUSH: Yes, this is what I'm going to clear up, my lord. 1746  Alfred Joseph (for Plfs.)  In chief by Mr. Rush  1 THE COURT:  All right.  2 MR. RUSH:  3 Q I just want to ask him about this.  4 A He would be with the Hag wil negh.  5 Q He's in the Hag wil negh House, is he?  6 A Yes.  7 THE INTERPRETER:  29.  8 MR. RUSH:  9 Q Is Hag wil negh and Wah tah keg'ht of the same clan?  10 A Yes.  11 Q Okay.  How is it that Bazil -- do you know how it is  12 that Bazil has the name of Hadakamah in Wah tah  13 keg'ht's House and is a member of another House, Hag  14 wil negh?  15 A Bazil has -- has helped in the -- the funeral expenses  16 of a chief in the House of Wah tah keg'ht, and that's  17 the reason that he got name from that House.  18 Q Okay.  Were there any other rights that went with  19 getting that name for that -- for helping out?  20 A He was given a right to use the territory, the area  21 that he showed us in the Kitsegukla Valley, eastern  22 part of the Kitsegukla Valley.  23 Q And who was he given these rights by?  24 A Wah tah keg'ht.  25 Q Okay.  And was this a -- was he given these rights  26 temporarily or permanently?  27 A Temporarily.  2 8       Q And when do these rights end?  29 A When he decides to give the -- give the name back or  30 he can say that I no longer am able to use the  31 territory.  32 Q Okay.  Now, you also described a -- yesterday you gave  33 us the name of Skin Dyee?  34 A Yes.  35 Q And I think that you did so during the course of your  36 evidence concerning what information you obtained from  37 Mary Skin and her son, and I was going to ask you if  38 you know the clan of Skin Dyee?  39 A Yes.  40 Q What is that?  41 A It's Gilseyhu.  42 THE INTERPRETER:  132.  43 THE COURT:  Yes.  Is this something you're filling in —  4 4 MR. RUSH: Yes.  45 THE COURT:  -- from yesterday?  You're not going to go on with  46 it?  47 MR. RUSH: No, no.  It's filling it in.  I neglected to ask — 1747  Alfred Joseph (for Plfs.)  In chief by Mr. Rush  1 THE COURT:  All right.  2 MR. RUSH:  — the name of the person.  3 THE COURT:  The name of the clan.  4 MR. RUSH:  The name of the person was Skin Dyee.  5 THE COURT:  Well, I don't — unless it's a number, I don't have  6 that name.  And I had lots about -- oh, wait a minute.  7 Wait until I find it.  8 MR. RUSH:  This was a trip Mr. Joseph talked about in the fall  9 of 1982.  10 THE COURT:  Yes.  11 MR. RUSH:  And he indicated that they went to this Skin Lake  12 area.  13 THE COURT:  Yes.  I know I have it somewhere.  14 MR. GOLDIE:  It was yesterday afternoon, my lord.  15 THE COURT:  Yes.  Oh, well, I have the Clan of the Skins is 132,  16 G-i-1-underline-s-e-y-h-u.  17 MR. RUSH:  Gilseyhu.  18 THE COURT:  Yes.  All right.  I have that.  19 MR. RUSH:  20 Q   That's the -- and what I'm going to ask you, Mr.  21 Joseph, Skin Dyee, what was his name in Wet'suwet'en?  22 A   Guubl'ghun.  23 MR. RUSH:  Okay.  24 THE INTERPRETER:  338 on the new list.  25 THE COURT:  Sorry, the number again.  26 THE INTERPRETER: 338.  2 7 THE COURT: Thank you.  2 8 MR. RUSH:  29 Q   Now, yes.  Then, my lord, I should tell you that I  30 tried to have available for you this morning the names  31 of the -- the Wet'suwet'en names to which we've made  32 reference this morning available to you as an addendum  33 to the existing names, and, actually, what I've done  34 is updated the existing name list, and I can give you  35 further of those names.  On that list is 338.  These  36 are just added to -- in chronological order to the end  37 of the existing list.  38 And you say that Skin Dyee was Gilseyhu, and you've  39 given his name, Guubl'ghun.  What was his House?  40 A   House is with the Goohlaht.  41 MR. RUSH:  All right.  Thank you.  42 THE INTERPRETER:  12.  4 3 MR. RUSH:  44 Q   Yesterday you made mention of Emma Michell, Mr.  45 Joseph.  I neglected to ask you what Emma's age is?  46 A   Seventy-eight.  47 Q   Okay.  And during the course of the trip that you went 1748  Alfred Joseph (for Plfs.)  In chief by Mr. Rush  1 on with Emma and Tommy Michell you gave us a number of  2 names that were given to you by Emma and Tommy  3 Michell.  It was not clear from whom the names came,  4 and I wanted to ask you if you can remember on that  5 particular trip whether there were names that you  6 could identify as names which were given to you by  7 Tommy Michell.  And just let me -- I guess I should  8 ask you if you can recall in specifics whether or not  9 those -- who it was that gave you the particular  10 names.  You'll recall, Mr. Joseph, this was the trip  11 that you took on August the 12th into the Telkwa  12 Valley area.  Now, do you remember that trip?  13 A   Yes.  14 Q   Okay.  And can you recall at this time what names were  15 given to you by Tommy on that trip?  16 A   He gave me those names Ts'ay T'sa neel eh Kwe and C'en  17 du yes Kwe, Pine Creek.  18 Q   Which creek?  19 A   Pine Creek.  20 THE INTERPRETER:  C'en du yes Kwe, 234.  21 THE COURT:  Yes.  He must have given you Jonas Flats as well,  22 didn't he?  23 THE WITNESS:  Yes.  2 4 MR. RUSH:  25 Q   There was a name that you made reference to called  2 6 De'el Kwe Nuc'?  27 A   He called the whole area -- the upper part of the --  28 the valley as De'el Kwe Nuc'.  2 9 Q   Was that -- was that a name that Tommy gave you?  30 A   Yes.  31 Q   There was also a name De'el Kwe Tl'aat?  32 A   Tl'aat is -- is the -- also the -- the mountains that  33 are at the headwaters.  34 Q   Okay.  Is that a name that he gave to you?  35 A   Yes.  36 Q   Or was that Emma that gave that?  37 A   Tommy.  38 Q   And then there was another name, Ts'ayh' nii Kwe?  39 A   Yes, yes, Ts'ayh' nii Kwe.  4 0 Q   And do you recall who gave that name to you?  41 A   Tommy.  42 Q   All right.  Are these -- any of the names that I've  43 just made reference to and you've given in testimony,  44 are these names that you have heard at a Feast talked  45 about in a public way?  46 A   Yes.  47 Q   Do you know if the late Tommy Michell spoke of these 1749  Alfred Joseph (for Plfs.)  In chief by Mr. Rush  1 names?  2 A   Yes.  3 Q   Did he speak of the -- the ownership of the territory  4 where these place names were located in the Feast?  5 A   Yes.  6 Q   And are you able to recall now what the ownership was  7 that he spoke of at that time?  8 A   He always said that the De'el Kwe Nuc' area was  9 Skokumwasaas territory.  10 THE INTERPRETER:  Skokumwasaas, 233.  11 MR. RUSH:  12 Q   Mr. Joseph, the names that you have given the court  13 with regard firstly to the Madeek territory that you  14 described yesterday, that Madeek territory, are those  15 names that you passed on to Marvin George and to Neil  16 Sterritt?  17 A   Yes.  18 Q   And did you understand that those names would be used  19 for the purpose of the preparation of a map?  20 A   Yes.  21 Q   Okay.  And with regard to the names that you have  22 given his lordship yesterday and today regarding the  23 locations, landmarks, and boundaries of other  24 Wet'suwet'en chiefs, did you pass this on to Marvin  25 George and to Neil Sterritt?  26 A   Yes.  27 Q   And did you understand these would be used for the  28 purposes of preparing a map of the Wet'suwet'en  29 territory?  30 A   Yes.  31 Q   All right.  Now, my lord, I'm going to turn to another  32 subject area.  I'm going to ask Mr. Joseph some  33 questions about Feasts and the Wet'suwet'en Feasts.  34 Now, I'm going to ask that the Exhibit 62, I believe,  35 be placed before Mr. Joseph, and I'm going to direct  36 his attention to tab 2.  37 Mr. Joseph, the tab 2 of Exhibit 62 is a seating  38 chart of the Gitdumden Clan, is that right?  39 A   Yes.  40 Q   And I would like you to explain some of the features  41 of this chart to us.  This is the seating of the  42 Gitdumden at a Feast which is hosted by another clan?  43 A   Yes.  44 Q   And on the diagram that's in front of you, where would  45 you place the door of the Feast hall where this  46 seating would have -- would be arranged?  47 A   To the right. 1750  Alfred Joseph (for Plfs.)  In chief by Mr. Rush  Okay.  There is a name Alex Williams Luus.  Would the  door be to the right of that?  Yes.  And what would be opposite the door at the far end of  the hall at the -- at the left-hand side of this  diagram?  The -- you mean what clan?  No, I mean is there -- is there a stage or some  other --  Yes, there is a stage up on there, yeah.  I'm just thinking here of the physical structure for  the moment.  Yeah.  So the door would be to our right beside Alex, and to  the left would be the stage, is that right?  Yes.  And this would be in a -- this is the seating in a  Feast hall for the Wet'suwet'en?  Yes.  Now, where would the other clans sit in relation to  the Gitdumden?  And let us say that it's the Laksilyu  that is hosting this Feast.  Where would the other  clans sit in relation to the Gitdumden Clan, which is  diagrammed here.  The Laksilyu would be in the middle as host, and  the -- to our -- to the Gitdumden's left on the stage  side would be the Laksamshu.  Yes.  And then across from the Gitdumden on the opposite  wall would be the Gilseyhu.  All right.  32 MR. GOLDIE:  Which was that again, please?  The last one, Gilseyhu.  Gilseyhu.  Now, the arrangement of the Gitdumden members in this  fashion, is this shown to have tables?  No.  Okay.  Is the seating then different from the Gitksan  seating in this respect?  Yes.  And the bottom row of people, is that row positioned  against the wall of the hall?  Yes.  And are -- does each square represent a chair?  Yes.  Now, there -- there are two rows, and I'd ask you  1  Q  2  3  A  4  Q  5  6  7  A  8  Q  9  10  A  11  Q  12  13  A  14  Q  15  16  A  17  Q  18  19  A  20  Q  21  22  23  24  25  A  26  27  28  Q  29  A  30  31 MR.  RUSH  32 MR.  GOLD  33 MR.  RUSH  34  Q  35  A  36  Q  37  38  A  39  Q  40  41  A  42  Q  43  44  A  45  Q  46  A  47  Q 1751  Alfred Joseph (for Plfs.)  In chief by Mr. Rush  1 first to look at the -- the row closest to the bottom  2 of the chart or that would be the wall row, as I  3 understand it, is that right?  4 A   Yes.  5 Q   Okay.  And the chairs face into the middle of the  6 hall, do they?  7 A   Yes.  8 Q   Okay.  The -- you are located, your name is located,  9 at least, as Alfred Joseph, Gisdaywa, at the --  10 approximately the middle of the back -- on the back  11 row.  Do you see that?  12 A   Yes.  13 Q   Okay.  Now, beside you are Woos, Roy Morris, and the  14 seat of Madeek, George Naziel, and it shows a D there,  15 and I take it that's because George Naziel has passed  16 on?  17 A   Yes.  18 Q   Okay.  Now, in this case, the three -- Roy -- you've  19 indicated in your evidence that Roy Morris, Woos,  20 yourself and Madeek are the three leading chiefs of  21 the Gitdumden Clan?  22 A   Yes.  23 Q   And it shows that the three of you sit together at  24 about the middle of the back row?  25 A   Yes.  26 Q   Okay.  And to the right of Roy there are other names  27 of other people in the Gitdumden Clan?  28 A   Yes.  29 Q   Are these the names of other chiefs in the Gitdumden  30 Clan?  31 A   Yes.  32 Q   Okay.  And it shows the names of several of the other  33 chiefs as you move down the seating arrangement to the  34 right?  35 A   Yes.  36 Q   Okay.  Are the chiefs of your House, Kaiyexweniits,  37 are they located at any -- in any particular place on  38 the seating arrangement?  39 A   Yes.  40 Q   And where -- where are the chiefs of your House  41 located?  42 A   The ones against the wall to my left would be -- the  43 third one down to my left against the wall is  44 Sylvester George, Mahleeh.  45 THE INTERPRETER:  107.  4 6 MR. RUSH:  47 Q   And he -- he has the name Na'ok', is that right? 1752  Alfred Joseph (for Plfs.)  In chief by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  A  Q  A  A   Yes.  Q   Okay.  And Rita George, is she a member of your House,  Kaiyexweniits, too?  Yes.  Okay.  And are there other members to the left as you  move down the left side?  There is Joe George, Hoog'et.  THE INTERPRETER:  122.  MR. GOLDIE:  My lord, I wonder if there's a number for Rita  George's name.  It's illegible on my copy.  THE INTERPRETER:  124.  MR. GOLDIE:  Thank you.  MR. RUSH:  Q   All right.  Now, Mr. Joseph, there is a name or at  least -- there is no name for -- appearing -- no  Wet'suwet'en name appearing for Dora Madam.  Do you  see that on the right side of the seating?  Yes.  And can you explain why that is so?  There has been a death of her mother not too long ago,  and she is preparing to take the name.  Of her mother?  Yes.  And are those -- those preparations haven't been  completed?  Yes.  Okay.  And Dennis, Madeline Dennis beside Dora Madam  shows a D there, indicating that she's passed on?  Yes.  And she -- it is indicated there that she holds the  name of Kalea?  Yes.  Is there -- is there a present holder of the name of  Kalea?  No, I haven't heard.  Okay.  And are the -- the seats of the -- of the two  persons indicated as having passed on, are those -- do  those seats remain empty until there is a successor?  Yes.  Now, can you tell his lordship that -- the other line  of names in front of the back or lower line, who --  who occupies the seats that are -- that are in that  row, which we'll call the front row?  The front row are the chiefs that are -- well, are  more like probable successors to ones that are sitting  in the back.  Okay.  The person that is sitting in front of you,  A  Q  A  Q  A  Q  A  Q  A  Q  A  Q  A  Q  A  Q  A 1753  Alfred Joseph (for Plfs.)  In chief by Mr. Rush  1 Jack Mitchell —  2 A   Yes.  3 MR. RUSH:  — is he — that's 123, if you can't make out that —  4 THE COURT:  122?  5 MR. RUSH:  6 Q   123.  He's sitting in the successor seat, a successor  7 to you?  8 A   Yes.  9 Q   Can you tell us how old a man Jack is?  10 A   He may be around 64, 65.  11 Q   He's older than you?  12 A   Yes.  13 Q   All right.  Is -- although he's sitting in the seat,  14 is he likely to be the successor to you?  15 A   Yes.  16 Q   Okay.  And in the case of Peter Alfred, do you know  17 the name Kanoots?  18 A   Yes.  19 THE INTERPRETER:  110.  2 0 MR. RUSH:  21 Q   The successor is Freddie Joseph, holding the name of  22 Wisalop?  23 A   Yes.  24 THE INTERPRETER:  129.  25 Q   And was Freddie given that name recently?  26 A   Yes.  27 Q   Now, there are some places, as you can see, where  28 there are blanks, and there are some people who do not  29 have Wet'suwet'en names.  First, can you explain why  30 there would be a blank in the -- in the place where  31 the successor would sit?  32 A   The blank spaces are for our people that have passed  33 on, and some -- there is always someone, a name there,  34 but someone has to take that name, and it's up to  35 the -- to the person to take a name, be — get ready  36 and take that name.  Some -- in some cases it's a  37 young person who -- who is -- who can't take that  3 8 name.  39 Q   Are there things that must be done by those young  40 persons before they take the name?  41 A   Yes.  42 Q   And are these people who will take a name in the  43 future?  44 A   Yes.  45 Q   And I think you told us about a Feast which the  46 Gitdumden Clan will be hosting in August of this year?  47 A   Yes. 1754  1  Q  2  3  4  A  5  Q  6  7  8  A  9  Q  10  11  A  12  Q  13  14  15  16  A  17  Q  18  19  20  21  22  A  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  Q  45  A  46  Q  47  A  Alfred Joseph (for Plfs.)  In chief by Mr. Rush  And will names be given to people who would be  successors or who would be entitled to take a  Wet'suwet'en name at that time?  Yes.  Now, the seating that is indicated here for the  Gitdumden Clan, is this seating the same for the --  all Feasts which are hosted by another clan?  Yes.  And is this seating the same whether you are in  Hagwilget or Moricetown?  Yes, it stays the same.  And this -- this seating -- the description of the  places and the names of the people sitting in these  places, is this -- is this accurate to the seating of  the Gitdumden Clan?  Yes.  Okay.  Now, can you tell his lordship why is it  important that, if it is, as to where you sit at a  Wet'suwet'en Feast?  You are located along with the  name of Madeek and Woos in the middle of the back row.  Is there an importance to attach to that?  One of the important -- the way -- the way that the  three head chiefs is seated together is that they --  there is always something happening on the floor, and  witnesses sitting there have to analyze what is  happening, and they have to analyze the things that  are happening in our own clan, things like giving -- a  person taking a name or transferring a name.  I've  heard Madeek and Kanoots, who are sitting side by side  to my left, talk about young chiefs that are coming  up, and -- and it's happening throughout the hall.  People that are sitting together always talk about  these things.  If an idea comes up or they see some  young person that's a good worker and attends Feasts  regularly and they -- they always -- they're always  watching the young people.  And sometimes they have to  watch the host clan, how the people work in the host  clan.  If there is a young person in there that's --  that is a good worker, again, they have to give their  opinion when that young person takes a high name.  So  it is important that the three chiefs that are sitting  together are always watching there as witnesses, there  as watching our own young people at the same time.  Do you consult with the other chiefs --  Yes.  -- during a Feast?  Yes. 1755  1  Q  2  3  A  4  Q  5  6  7  A  8  9  10  11  12  13  14  15  Q  16  17  18  19  A  20  Q  21  22  23  A  24  Q  25  A  26  Q  27  28  29  30  A  31  Q  32  A  33  Q  34  A  35  Q  36  37  A  38  Q  39  40  41  42  A  43  Q  44  45  A  46  Q  47  A  Alfred Joseph (for Plfs.)  In chief by Mr. Rush  And is there -- are there questions of business that  come up in a Feast that you discuss?  Yes.  Is the place where you sit in a Feast also related to  your -- your standing as a -- as a chief and the high  name that you hold?  Yes, it is.  You are watching the proceedings right --  you're right close to where the business is taking  place on the floor, and you are much closer to the  host clan whenever you have to -- you're asked or when  you have to acknowledge what -- what was given to you,  and you have to acknowledge every -- everything that's  happened at the Feast, and you have to talk about it  at the end of the Feast.  Is the -- the hosting clan, is it -- is the  Wet'suwet'en Feast similar to the Gitksan Feast that  the hosts are not seated at a Feast that they are the  hosts for?  Yes, unseated.  And the hosts -- the hosts are -- where are they  positioned in relation to you, the -- the invited  clans?  They are in the middle.  And they are not seated?  No.  Now, is the seating arrangement for the other clans  the same as it is for the Gitdumden?  You've described  a certain way in which the chiefs are seated on your  side.  Is it the same for the other clans?  No.  How -- who determines their seating arrangements?  They themselves have their own seating arrangement.  But they too sit on chairs around the hall --  Yes.  -- is that it?  But where they sit is up to their clan?  Yes.  Now, is there one clan that -- perhaps I should ask it  this way.  Do you always -- do the Gitdumden always  sit in the same place, in the same location in the  Feast hall no matter who is hosting the Feast?  Yes.  Okay.  There are always three clans that are seated,  is that correct?  Yes.  And one clan that is hosting?  Yes. 1756  Alfred Joseph (for Plfs.)  In chief by Mr. Rush  1 Q   Is there one clan which moves its location depending  2 on who is hosting?  3 A   Yes.  4 Q   And who is that?  Which clan is that?  5 A   The Gilseyhu.  6 THE INTERPRETER:  132.  7 MR. RUSH:  8 Q   So the Gilseyhu would move to the place of the clan  9 that would be hosting and for that Feast they would  10 sit in that place?  11 A   Yes.  12 Q   Now, the villages of Hagwilget and Moricetown, for the  13 purposes of feasting, are these villages considered  14 separate or together in terms of the feasting  15 activities of the Wet'suwet'en?  16 A   They're together.  17 Q   Okay.  And does -- is the consequence of that that  18 where the Feast is held, whether it's held in  19 Hagwilget or Moricetown, the same Feast arrangements  20 occur and the seating is the same in both?  21 A   Yes.  22 Q   Now, are there -- are there people who -- are there  23 some people who assist in the seating of guests at a  24 Wet'suwet'en Feast?  25 A   Yes.  26 Q   Okay.  And these would be both Wet'suwet'en and guests  27 of the Wet'suwet'en host, who are non Wet'suwet'en?  28 A   Yes.  29 Q   Do you find, for example, a place for a Gitksan chief  30 in the event that they would be invited to a  31 Wet'suwet'en Feast in the Feast hall?  32 A   Yes.  33 Q   And -- now, in relation to the diagram that you've  34 identified here, you've made mention of the  35 contributions, both goods and materials and money,  36 that occur at a Wet'suwet'en Feast.  Where -- where in  37 relation to this diagram would those contributions be  38 placed?  39 A   It would be in the middle.  40 Q   Okay.  And is the -- is the activity of the hosting  41 clan within the middle of the Feast hall?  42 A   Yes.  43 Q   Okay.  Mr. Joseph, I want to ask you about a Feast  44 which you have -- you've indicated was a recent Feast  45 of the Gitdumden that was held in Moricetown.  And I  46 understand there was a Feast that was hosted by the  47 Gitdumden in October of last year, in 1986, is that 1757  Alfred Joseph (for Plfs.)  In chief by Mr. Rush  right?  Yes.  And this was a Feast that was hosted by one of the  houses of the Gitdumden, the House of Cassyex, is that  right?  Yes.  And not by your House?  No.  But you were there as a Gitdumden member to  participate in and assist in the Feast?  Yes.  And at this Feast I understand there were two  headstones that were erected for two Gitdumden members  who had passed on?  Yes.  And were those two people Connie Tiljoe and Sarah  Pierre?  Yes.  And there were names that were passed at this Feast,  is that correct?  Yes.  Okay.  And there was, in addition, a name passed for a  chief who had recently passed on, Mathew Michell?  Yes.  And you've made mention of him in your testimony?  Yes.  He held the name of Sowiis?  Yes.  And that name was passed to another holder?  Yes.  31 MR. RUSH:  Okay.  Now —  32 THE COURT:  Do you have the spelling for that, Madam Reporter?  33 THE INTERPRETER:  191.  34 THE COURT:  Thank you.  35 MR. RUSH:  Now, where names were to be passed and in a -- or two  headstones raised, the -- was the responsibility of  the Gitdumden to put up this Feast, as I understand  it?  Yes.  And you had assisting responsibilities as a House of  Gitdumden?  Yes.  And I understand that Freddie Joseph, who's -- who  you've made mention of in the seating chart, took the  name of Wisalop?  Yes.  1  2  A  3  Q  4  5  6  A  7  Q  8  A  9  Q  10  11  A  12  Q  13  14  15  A  16  Q  17  18  A  19  Q  20  21  A  22  Q  23  24  A  25  Q  26  A  27  Q  28  A  29  Q  30  A  36  Q  37  38  39  40  A  41  Q  42  43  A  44  Q  45  46  47  A 175?  Alfred Joseph (for Plfs.)  In chief by Mr. Rush  1 THE INTERPRETER:  129.  2 MR. RUSH:  3 Q And Adeline Holland took the name of Sowiis?  4 A Yes.  5 THE INTERPRETER:  191.  6 MR. RUSH:  7 Q And Ruby Williams took the name of Nahlii?  8 A Yes.  9 THE INTERPRETER:  267.  10 MR. RUSH:  11 Q Now, guests were invited to this Feast, is that  12 right --  13 A Yes.  14 Q -- to your understanding?  15 And the responsibility for inviting the guests  16 were -- was on the shoulders of those who were going  17 to take the name?  18 A Yes.  19 Q Okay.  And in this case it was Adeline and Ruby and  20 Freddie?  21 A Yes.  22 Q Now, Woos, Roy Morris, was the head of Cassyex?  23 A Yes.  24 Q Okay.  And did Woos also participate in the  25 invitations to the -- to the Feast?  26 A Yes.  Woos acted as a spokesman for these people that  27 were inviting.  28 Q Okay.  Was Woos the responsible chief for this  29 particular Feast?  30 A Yes.  31 Q And did he do the announcing at the Feast?  32 A Yes.  33 MR. RUSH:  The name that Freddie Joseph took, Wisalop --  34 THE INTERPRETER:  129.  35 MR. RUSH:  36 Q -- was a name that was previously held by Kanoots, is  37 that correct?  38 A Yes.  39 Q And that's Peter Alfred?  40 A Yes.  41 Q And Peter is still living?  42 A Yes.  43 Q And I understand that he took the name at that -- that  44 this was another name that was held by --  45 A Yes.  46 Q — Peter.  Is that right?  47 A Yes. 1759  Alfred Joseph (for Plfs.)  In chief by Mr. Rush  1 Q And that he took the name at that time, a time that  2 was the same as his fixing his mother's headstone?  3 A Yes.  4 Q And that mother was Sarah Pierre?  5 A Yes.  6 Q And that Ruby took the name of Nahlii, which was a  7 name that was passed on to her from Roy Morris?  8 A Yes.  9 Q And that was an old name that was held by Roy or an  10 old name in the House of Cassyex?  11 A It was held by Roy.  12 Q And he passed that to her?  13 A Yes.  14 MR. RUSH: Now —  15 THE COURT:  I haven't got a spelling for Cassyex I'm sure.  16 MR. RUSH: Yes.  17 THE TRANSLATOR:  119.  18 MR. RUSH: Yes.  19 THE COURT:  It's not on the list of Gitksan and Wet'suwet'en.  20 MR. RUSH: Cassyex is a House of the Wet'suwet'en.  It's 119, my  21 lord, on your amended Wet'suwet'en word list.  The top  22 of the second page.  23 THE COURT:  I knew it wouldn't be spelt the way it sounded.  24 Thank you.  2 5 MR. RUSH:  26 Q Thank you.  Now, at the invitational -- you did not  27 participate in the invitational as I understand it?  2 8       A No.  29 Q During -- is there a way in which the Wet'suwet'en  30 people invite others to their Feasts which is the  31 usual way that it happens?  32 A Yes.  33 Q Does this occur by the use of a song?  34 A Yes.  35 Q And does it occur by the hosts going to the homes of  36 the guests and their singing to the guests as an  37 invitation to the Feast?  38 A Yes.  39 Q And when the clan -- members of other clans are or  40 invited clans are invited by singing, must they attend  41 the Feast when they are invited in that manner?  42 A Yes.  4 3       Q And why is that so?  44 A Because when they are invited, the Saneel of the chief  45 is used.  46 Q Now, Saneel —  47 A Saneel, yes. 1760  Alfred Joseph (for Plfs.)  In chief by Mr. Rush  1 Q   That's the song, isn't it?  2 A   Yes.  3 MR. RUSH:  And that's —  4 THE INTERPRETER:  275.  5 MR. RUSH:  6 Q   275.  I think you also said in testimony a few days  7 ago that there was a rattle used at the same time?  8 A   Yes.  9 Q   All right.  I'm sorry to interrupt you, Mr. Joseph.  10 Why then must people attend a Feast?  11 A   It's -- when you are invited with this Saneel and  12 the -- and the rattle and the song, it is one of the  13 strongest laws in Wet'suwet'en that when that is used,  14 it is never to be broken, and that same method -- the  15 same thing is used for making peace.  So when you are  16 invited in that manner, you have to attend to the  17 Feast that your invited to.  18 Q   And is that the law that you've spoken of?  19 A   Yes.  2 0       Q   Okay.  At the moment of the invitation does the  21 invited clan member make a contribution or make a gift  22 to the inviting host?  23 A   Yes.  24 Q   Is that subsequently repaid by the host?  25 A   Yes.  26 Q   And does this occur at the Feast?  27 A   Yes.  28 Q   And can you tell us, is this -- is what I've -- what  29 you've just described, is this the same as what  30 happens at a Gitksan Feast or are there differences?  31 A   They are the same.  32 THE COURT:  Pick a convenient place to adjourn, Mr. Rush.  33 MR. RUSH:  Yes.  All right.  I can pause now.  34 THE COURT:  Now?  35 MR. RUSH:  Fine.  Thank you.  36 THE COURT:  All right.  Two o'clock.  37 THE REGISTRAR:  Order in court.  38  3 9 (PROCEEDINGS ADJOURNED PURSUANT TO THE LUNCHEON  4 0 ADJOURNMENT)  41  42  43  44  45  46  47 1761  Alfred Joseph (for Plfs.)  In chief by Mr. Rush  1  2 I hereby certify the foregoing to be  3 a true and accurate transcript of the  4 proceedings herein to the best of my  5 skill and ability.  6  7  8  9 Leanna Lynn  10 Official Reporter  11 United Reporting Service Ltd.  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  4 6 (PROCEEDINGS RESUMED PURSUANT TO LUNCHEON ADJOURNMENT)  47 1762  Albert Joesph (for Plfs.)  In Chief by Mr. Rush  1 THE REGISTRAR:  Witness, I remind you you are still under oath.  2 THE COURT:  Mr. Rush.  3 MR. RUSH:  Yes.  Thank you, my lord.  4  5 EXAMINATION IN CHIEF BY MR. RUSH, Continued:  6 Q   Now, Mr. Joseph, you just pull the mike a little  7 closer to you.  Yes.  We are talking about the  8 Wet'suwet'en Feast and I was about to ask you about  9 some of the duties that you had at this Feast that was  10 hosted by Woos?  11 A  Well, some of the duties are always things that the  12 Chief Woos would consult other chiefs on some of the  13 names that people are taking, and making sure that  14 workers are all seated and present.  Sometimes some of  15 the workers would be absent and they have to see that  16 there is a place for these workers that are unable to  17 attend, and there has to be materials set aside for  18 these people.  Because on the father's side very often  19 an important person would be living in some other  20 area, so you treat that as if he was there.  Chief's  21 seat is there.  So you have to make sure that you --  22 that person gets paid for the services.  23 Q   Did you at this Feast make contributions yourself as a  24 chief?  25 A   Yes.  26 Q   And did those contributions include contributions of  27 food and clothing and fruit?  28 A   Yes.  29 Q   Did you also make contributions of money?  30 A   Yes.  31 Q   Okay.  And you knew Matthew Michell who was the former  32 holder of Sowiis?  33 A   Yes.  34 Q   And the contributions -- well, was Matthew related to  35 you in a way?  36 A  Well, yes.  We are from the same clan.  37 Q   Okay.  Now, normally at a Wet'suwet'en Feast, is it  38 the father's side which is the -- represents the  39 guests at the Feast?  40 A   Yes.  41 Q   Okay.  And can there been more than one clan that are  42 the guests?  43 A   Yes.  44 Q   Now, at this Feast, the other clans, who are the other  45 clans that were the guests?  46 A   They were the Gilseyhu and Laksilyu.  47 Q   Other two Wet'suwet'en clans? 1763  1  A  2  Q  3  4  A  5  Q  6  7  8  A  9  Q  10  11  A  12  Q  13  14  A  15  16  17  18  19  Q  20  21  A  22  Q  23  A  24  25  26  27  28  29  30  31  Q  32  33  34  A  35  Q  36  A  37  38  39  40  41  42  Q  43  A  44  Q  45  A  46  Q  47  Albert Joesph (for Plfs.)  In Chief by Mr. Rush  Yes.  All right.  And did the members, other members of your  clan make contributions as well?  Yes.  And you told us that these other contributions or you  told us earlier the contributions were put together in  the middle of the Feast hall?  Yes.  And were some of the contributions specifically  earmarked to certain people?  Yes.  And why would that be so?  Let us say the specific  ones, why would you go do that?  Well, the father's clan is always the important.  There are times when I said if they are absent even  though if they never contributed money or services,  they still have to be paid, because they are the  immediate family on the father's side.  Are there payments that are made specifically to repay  a past debt?  Yes.  And can you tell us how that might work?  The chief is -- sometimes has to -- sometimes the  chief ends up in the hospital or has to go away out of  town for -- to see medical doctors and when the --  when the father's side know about that, they make a  contribution to his trip or to his stay in -- out of  town or even in the hospital.  He is given money, he's  given different foods.  So that -- that's what a chief  has to repaid.  Now, you told us that you were consulted by Woos about  the names of this chief, of the chiefs that were to  take names at this Feast?  Yes.  And did you also help in the seating at this Feast?  Yes.  You -- when there is quite a few people coming  in, you prepare -- only one person is seating.  Sometimes there is a few, quite a few that are coming  in and are at the door.  And you have to direct these  people to the person that's seating them.  And that  way you keep them moving.  Okay.  Were there singers at this Feast?  Yes.  And who were they?  I remember Dick Alec.  Okay.  And is it usual at a Wet'suwet'en Feast to have  songs sung at the Headstone Feast? 1764  1  A  2  Q  3  4  A  5  Q  6  7  8  A  9  Q  10  11  A  12  13  14  15  16  Q  17  18  A  19  Q  20  A  21  22  23  24  25  26  27  28  29  Q  30  A  31  Q  32  33  A  34  Q  35  A  36  Q  37  38  A  39  40  41  42  43  44  Q  45  46  A  47  Q  Albert Joesph (for Plfs.)  In Chief by Mr. Rush  Yes.  Does the mourning period for a chief who has passed  on, does that end at the Headstone Feast?  Yes.  Now, there is a -- there is a ceremony at the  Wet'suwet'en Feast which is called Luu liil, is that  right?  Yes.  That's 272.  And what happens in this Luu liil  ceremony?  It's when the person that's taken a name, either a  high chief or someone in your House taken an important  name, they usually act out whatever the crest of the  House is, and as they come in they have to come into  the hall from outside.  Is the Luu liil the part that is the coming into the  hall?  Yes.  And how would you translate the word Luu liil?  Luu liil are people that come in before the chief and  they announce the person that is coming in.  They  describe the person, but they don't describe the  person that is -- they see.  They often say that this  person is coming in is something, they might say he's  a wild person, and other times they would say he's  sort of a funny person or a person that is out of his  mind.  They are just exaggerate what the persons  that's coming in.  Okay.  That's the first person does that.  And how many announcers, how many announcers are there  usually?  There is usually two.  Two.  And you have just described the first one?  Yes.  What would the second one say in his or her  announcement?  The second one comes in and says that the first one  wasn't telling the truth and he or she described the  person that's coming in as someone -- some person  that's different or they'd say, "we don't know what it  is."  And finally they say that this is what the  person is.  So that's when they contradict each other.  All right.  And then does the person who has been  announced, does that person then come in?  Yes.  Okay.  And that is the person who is taking the name? 1765  1  A  2  Q  3  A  4  Q  5  6  A  7  Q  8 MR.  GOL]  9  10 MR.  RUS1  11  12  Q  13  A  14  Q  15  A  16  Q  17  A  18  Q  19  20  21  A  22  23  24  25  26  27  28  29  Q  30  31  32  33  A  34  Q  35  36  A  37  Q  38  39  40  41  A  42  Q  43  44  A  45  Q  46  A  47  Q  Albert Joesph (for Plfs.)  In Chief by Mr. Rush  Yes.  And in this case it was Adeline Holland?  Yes.  Okay.  And is that person usually wearing the regalia  of the House that the name will be taken in?  Yes.  Okay.  Now --  3:  I am sorry, is that intended to tell us that she  was wearing in the regalia?  Well, it's to tell you two things.  A general and a  specific.  We will go to the specific now.  Was Adeline wearing regalia?  She was wearing a blanket.  A blanket?  Yes.  Okay.  And that was of Cassyex?  Yes.  And what is -- what's the significant, Mr. Joseph,  about the announcements that are represented in the  Luu liil when it occurs at a Feast?  It is -- every time this is done, it's different from  anything that's -- that's done before.  So that it's a  time when you -- when they have no -- no set rules are  followed.  They just make -- make something up at the  time and they -- it's a time where everyone is happy  and usually it's -- it's something that make people  laugh, something -- when the persons, the first two  persons come in, say, would make the people laugh.  Okay.  When the person taking the name enters the  Feast after having been announced, is that the first  time that the people assembled in the Feast hall are  introduced to the new name holder?  Yes.  And this occurs after the guests have been assembled  in the hall?  Yes.  Now, after the announcement or announcements, I  understand that the children and the spouses also  enter the hall and they come dancing into the hall.  Is that right?  Yes.  Yesterday we -- or the day before we made mention of  in the testimony the Andumenuk and the Haircut?  Yes.  That's what -- occurs at that time?  Yes.  All right.  Now, perhaps just before I leave the 1766  1  2  3  4  A  5  Q  6  7  A  8  Q  9  A  10  Q  11  12  A  13  Q  14  15  A  16  Q  17  A  18  Q  19  A  20  21  22 THE  COURT  23  A  24  25  2 6 THE  COURT  27  A  2 8 MR.  RUSH:  29  Q  30  A  31  Q  32  33  A  34  Q  35  36  A  37  Q  38  39  A  40  41  42  43  Q  44  45  A  46  Q  47  Albert Joesph (for Plfs.)  In Chief by Mr. Rush  announcements or the Luu liil, can you tell me whether  or not this ceremony is the same or different from  what happens at a Gitksan Feast, if you know?  The -- it's the same.  All right.  Now, at this particular Feast, Mr. Joseph,  Woos acted as the announcer, you said?  Yes.  Is that right?  Yes.  Yes.  And did he act as sort of someone who was an  M.C., if I can use that language?  Yes.  Now, is the Headstone that is erected or about to be  erected, is that usually brought to the Feast hall?  Yes.  Okay.  Were there Headstones brought to this Feast?  Yes, I think there was.  Okay.  And why is the Headstone brought to the Feast?  It's brought in so that the people can view the stone  and this again as the people view it put money on the  stone and that is also noted and paid back.  :  I am sorry?  Put money on the stone and --  Yes.  It is put -- the money is put on the stone and  they -- the host clan will take this person's name and  later on the money is returned.  :  Oh, I see.  With interest.  Are there crests that appear on some of the stones?  Yes.  And are these the crests of the House of the chief  that is passed on?  Yes.  And is there -- is there other information on the  stone that is --  Yes.  And what is it that people view when they view this  information?  Well, they -- if there is a crest on it, they view  that and it is treated the same as when the totem pole  is erected.  If usual crest is there, that is very  important to Wet'suwet'en chief.  Are the details of the person's date of birth and date  of death, are they also viewed?  Yes.  And is it -- is there -- is it important that these  facts be viewed in a Feast by the witnesses? 1767  1  A  2  Q  3  A  4  5  6  7  Q  8  9  A  10  Q  11  12  A  13  Q  14  15  16  A  17  18  19  20  21  22  Q  23  A  24  Q  25  A  26  Q  27  A  28  Q  29  A  30  Q  31  32  33  A  34  35  Q  36  A  37  38  Q  39 THE  COURT  40  A  41 THE  COURT  42 MR.  RUSH:  43  Q  44  45  A  46  Q  47  A  Albert Joesph (for Plfs.)  In Chief by Mr. Rush  Yes.  Why is that?  Well, it's -- there are stones in cemeteries around  Hagwilget that you can tell some of the House chief  names are on there.  They are English names and chief  names.  Okay.  Now, the Headstone is taken from the Feast at  some time after the Feast, is that right?  Yes.  And what becomes of the Headstone and how is it taken  from the Feast?  It is taken to the gravesite and erected there.  Okay.  And how is it taken there?  Firstly, how was  it -- or it used to be taken there and how is it taken  there today?  Yes.  The chief stone is used to be taken up by the --  by the guests that are invited for that stone Feast.  And they get a sleigh and tie a long rope to it and a  lot of people get on the end and start pulling,  pulling this.  And that's the way it's taken to the  gravesite.  It used to be pulled on a sleigh to the —  Yes.  -- gravesite?  Yes.  Okay.  And does that sometimes occur today?  Yes.  And for what kind of chief does that occur for?  House chief or any some of the sub-chiefs.  And on the occasion of a chief's Headstone being  pulled to the graveyard, are there -- is there  anything done on the way to the cemetery?  Yes.  There is something happening all the time  with -- the people are singing.  Okay.  And refreshments are given out on the way up to the  Feast.  I want to show you a photograph.  :  On the way to the Feast or on the way to the burial?  On the way to the gravesite.  :  Thank you.  If you'll just look at tab 12.  There is a photograph  there.  Do you recognize that photograph?  Yes.  Can you just tell us what is shown in this photograph?  I know the place is in Moricetown and I know the log 176?  Albert Joesph (for Plfs.)  In Chief by Mr. Rush  1 building to the right.  2 Q   What does it depict?  Is this the -- what does it show  3 here?  4 A   They are pulling Headstone up to the graveyard.  5 Q   Okay.  And is this the rope that they are pulling  6 it —  7 A   Yes.  8 Q   -- with?  Mr. Joseph, were you at this event?  Do you  9 recall it from your participation in it?  10 A   No.  11 Q   All right.  12 MR. GOLDIE:  I take it we are a long way way from October of  13 last year.  14 THE COURT:  Oh, I think the question was whether Mr. Joseph was  15 at this particular --  16 MR. GOLDIE:  Yes, I realize that.  17 THE COURT:  Oh, yes.  18 MR. GOLDIE:  But I understand we have now left the Feast of last  19 year.  2 0 THE COURT:  I am sure we have.  21 MR. RUSH:  We are here demonstrating the rope that pulls the  22 Headstone up.  2 3 THE COURT:  Yes.  2 4 MR. RUSH:  25 Q   Now, Mr. Joseph, I want to ask you if you'll look for  26 a moment at the next tab, the next photograph.  Tab  27 13.  I want to ask you if you recognize what this is?  28 A   Yes.  2 9       Q   And what is this?  30 A   That is where they are pulling a stone.  31 Q   Is this the type of sled that you referred to in your  32 evidence?  33 A   Yes.  34 Q   And do you recall this event?  Is this something that  35 you were present at?  36 A   No.  37 Q   Okay.  Do you know the people who are in the  38 photograph, the musicians?  39 A   Yes.  4 0       Q   And who are they, do you know?  41 A   The one with the drum is passed on and he's the late  42 Jimmy Joseph from Moricetown, and the one on the left  43 with the banjo is also passed on and I have known him  44 as Charlie Tommy, and the one in the middle is still  45 alive and he's Charlie Pete.  46 THE COURT:  Charlie?  47 A   Pete. 1769  1 MR.  RUSH  2  Q  3  4  5  A  6  Q  7  8  A  9  Q  10  11  12  13  A  14  15  Q  16  17  A  18  19  Q  20  21  A  22  Q  23  A  24  Q  25  26  27  28  A  29  Q  30  A  31  Q  32  A  33  Q  34  35  A  36  Q  37  38  39  40  A  41  Q  42  A  43  44  45  46  Q  47  Albert Joesph (for Plfs.)  In Chief by Mr. Rush  And is this -- have you seen the taking of Headstones  on a sled to the cemetery from a Feast hall in a  manner such as this?  Yes.  But you say you weren't present during the time that  this particular one is taken?  No, I wasn't present.  Okay.  In cases today, Mr. Joseph, when there is not a  chief whose stone is taken to the cemetery by means of  a sled such as this, how does the stone normally get  there?  Usually it's hauled up in a truck.  And the ceremonies  that are such as this takes place in the Feast hall.  Okay.  And does the ceremony involve the use of a  rope?  No.  They -- they still call it the rope, but it's --  it comes in the form of cloth, towels, other articles.  And is this -- are these cloths and towels to  commemorate this form of pulling the stone to the --  Yes.  -- graveyard?  Are these given out at a Feast?  Yes.  All right.  Now, during the time that the various  activities at a Feast that you have described so far  and some that you will describe, when these occur are  these being explained at the time they occur?  Yes.  And who does the explaining?  At the Feast that is done by the House chief.  By the House chief?  Yes.  In this case it was Adeline Holland's Feast.  Was it  Woos who did this?  Yes.  It was Woos.  Okay.  Now, when the name of the new taker of the name  is announced in the presence of the other chiefs, do  the other chiefs then make some comment about the  name?  Yes.  What normally happens and what happened in this Feast?  When a new chief has been named, it's up to the guests  to also name the new chief.  And this happens by --  through the House chief who calls upon the guests to  give their version of the new chief's name.  And what do they do, what do these chief's do at that  occasion? 1770  1  A  2  3  4  5  6  7  Q  8  A  9  Q  10  A  11  Q  12  A  13  14  15  Q  16  A  17  Q  18  19  20  A  21  Q  22  A  23  Q  24  25  A  26  Q  27  28  A  29  Q  30  31  A  32  33  34  Q  35  A  3 6 MR.  RUSH  37  38 THE  TRAN  39  A  4 0 THE  TRAN  41  42 MR.  RUSH  43  Q  44  45  A  46  47  Q  Albert Joesph (for Plfs.)  In Chief by Mr. Rush  They -- when the guests are called upon, they -- they  say to the new chief that he or she will be called a  name that link to the crest of the guest and if it's  the Frog Clan and they are called upon, they will say  that the new chief is -- will be called the Frog that  sleeps too long or any other comments like that.  Are these intended to be humorous or serious?  Yes.  Okay.  Which?  Pardon?  Humorous or serious?  Well, it's humorous time.  It's the time when  everybody are waiting for this chief's version of the  new chief's name.  Okay.  That's what they call renaming the new chief.  All right.  And each of the witnessing chiefs or some  of the witnessing chiefs at least do some of the  renaming?  Yes.  Is that right?  Yes.  And do these names take the form of plays on words and  that type of thing?  Yes.  And again, does this occur in the face of all the  assembled chiefs?  Yes.  Is there a Wet'suwet'en name for the renaming of a  chief in this way?  When they are called upon -- when they call the  whole -- the whole renaming of chiefs, they say Nee  ggoo tan dziil.  Nee ggo -- ?  Nee ggoo tan dziil.  Nee ggoo tan dziil.  Mr. Mitchell, can you help us  us with that.  LATOR:  Nee ggoo tan —?  Nee ggoo tan dziil.  1ATOR:  Nee ggoo tan dziil.  N-e-e g-g-o-o t-a-n  d-z-i-i underline 1.  Now, at the time that the chief who is going to take  the name is renamed, are the witnesses given anything?  Yes.  They are paid for every time they rename a new  chief.  Okay.  And are they -- how are they paid? 1771  1  A  2  Q  3  4  A  5  Q  6  A  7  Q  8  9  10  11  A  12  Q  13  14  15  16  A  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  Q  32  A  33  34  35  36  37  Q  38  39  40  A  41  Q  42  A  43  44  45  46  Q  47  A  Albert Joesph (for Plfs.)  In Chief by Mr. Rush  They are given presents or money.  Sometimes both.  And do the relatives of the chief that takes the name,  would they distribute this --  Yes.  -- money?  Yes.  All right.  And the chiefs that receive these gifts or  money, what's the importance of their receiving the  gifts when they receive it after this renaming of the  chief?  What was that?  The importance of the -- when the chiefs receive the  money or the gifts, when those chiefs have renamed the  chief that is going to take the name, why is it on --  or is it important that they take these gifts?  Yes.  A chief that is called upon to rename a chief,  it's when you go to a Feast and the collection is made  and people are paid and the extra that's left over is  passed along to all the chiefs that are sitting there.  It's not the only time that gifts are given out.  The  gifts are coming in all the time.  So that a person  gets five dollars for a certain thing you did at the  Feast, that is not the only bit of money you are going  to get.  There may be four or five different renamings  going on, and then there is other chiefs that pay  their -- it's a steady -- a steady flow of business  that's going on in that Feast.  So it's not -- not  just -- not just a head chief paying for the  Headstone.  There is other things going on on that  floor.  All right.  So it's -- what I am saying is that the money -- it  may appear small to you, but it all -- by the time you  get out of there you have quite a few -- few things,  quite a few -- quite a little bit of money by the time  you leave there.  Okay.  Now, when you take that money or those gifts  away, is that an acknowledgement of something in the  Feast?  Yes.  What is that?  It's when you take the gifts away, you have accepted  what was done there.  You have accepted the new chief  and to Wet'suwet'en chief everything that went on  there is proper.  And that's what it signifies?  Yes. 1772  Albert Joesph (for Plfs.)  In Chief by Mr. Rush  1 Q   Does that also include what goes on in the Feast in  2 relation to territory?  3 A   Yes.  4 Q   Okay.  Now, at the time -- we are still dealing at the  5 moment in the Feast when we have this renaming of the  6 chief when the chief is first announced.  At that time  7 is there any mention by the chiefs who are there as  8 witnesses or of the host Feast, is there mention of a  9 territory?  10 A  When a person receives a name at a Feast, the House  11 chief would say that this person has now the privilege  12 of using this territory, and that person can make --  13 make use of this territory or this berry patch or a  14 fishing site.  15 Q   And do they make mention in specific terms about the  16 territory?  Do they mention the place?  17 A   Yes.  18 Q   And do they mention the ownership of the territory?  19 A   Yes.  20 Q   Do they mention names of places on the territory?  21 A   Yes.  22 Q   Now, you've told us of some of the items that are  23 distributed at a Feast.  You've made mention of money  24 and certain goods and I think you said something of  25 towels?  26 A   Yes.  27 Q   Are there other types of gifts that are distributed at  28 a Feast?  29 A   Yes.  30 Q   Can you tell us what other types of things are  31 distributed?  32 A   In the -- they use hide, mooseskin, tanned mooseskin  33 in the past.  34 Q   Yes.  How is that distributed?  35 A   It was distributed in three different sizes.  One that  36 was distributed to all -- everybody at the -- at a  37 Feast and this piece of skin was approximately one  38 feet by three feet and that was called lk'iy hal  39 d'aas.  40 MR. RUSH:   Okay.  I don't think we have that name, Mr.  41 Mitchell.  Lk'iy hal d'aas?  42 A   Yes.  43 THE TRANSLATOR:  Lk'iy hal d'aas.  L underline k-'-i-y h-a-1  44 d-'-a-a-s.  45 THE COURT:  "D" or T-a-a?  46 A   D-a-a.  47 THE COURT:  D-a-a-s.  Thank you. 1773  1 MR.  RUSH:  2  Q  3  A  4  Q  5  6  A  7  Q  8  9  A  10  Q  11  A  12  Q  13  14  15  A  16  17  18  19  20  Q  21  22  23  A  24  Q  25  26  A  27  Q  28  29  A  30  31 MR.  RUSH:  32  33 THE  COURT  34 MR.  RUSH:  35  Q  36  37  38  39  40  41  42  43  A  44  Q  45  A  46  Q  47  Albert Joesph (for Plfs.)  In Chief by Mr. Rush  Were these pieces collected?  Yes.  And were these the pieces -- were these circulated  within a Feast?  Yes.  And the -- you've mentioned piece.  Were whole  mooseskin distributed as well?  Some -- sometimes to the high chiefs.  Okay.  And were these considered valued items?  Yes.  Okay.  Now, are these -- you've placed this in the  past tense that this is what occurred.  Does this  occur today?  Not too much in the past.  In the past it was up to  the '50s.  It was these pieces that I talk about, one  foot by three feet, had -- each elder, each chief had  a trunk just for that.  And that trunk was full of  these pieces of skin.  You say it doesn't happen too much today that  mooseskin or mooseskin pieces are distributed, but  does it happen sometimes today?  Sometimes, yes.  And is it seen -- is the mooseskin seen as a value  today?  Yes.  And can you say what the mooseskin is used for today  among the Wet'suwet'en people?  It is still being used for making moccasins, gloves,  j ackets.  Okay.  My lord, I want to -- I want to show you a  piece of this mooseskin.  :  All right.  I have a piece here, and I don't want to enter it as  an exhibit, but I have it here and I'd like to show  you, and I have a photograph which I took a couple  days ago, and I haven't listed yet.  And I would like  to show this to my learned friends.  Mr. Joseph, I am  showing you a piece of skin, I think.  Is this the  type of mooseskin that you are referring to in your  evidence?  Yes.  Okay.  Are they usually this large?  Yes.  Thank you.  Mr. Joseph, I have a photograph of you  holding what appears to be that skin.  Is that you 1774  Albert Joesph (for Plfs.)  In Chief by Mr. Rush  1 with the skin I have just shown you?  2 A   Yes.  3 MR. RUSH:   Okay.  4 THE COURT:  Yes.  Are you tendering that, Mr. Rush?  5 MR. RUSH:  Yes, I am going to.  6 THE COURT:  That will be Exhibit — ?  7 THE REGISTRAR:  66.  8 THE COURT:  Thank you.  9  10 (EXHIBIT 66:  Photograph of Mr. Joseph with a piece of  11 mooseskin)  12  13 MR. RUSH:  Now, with your lordship's permission I would like to  14 get copies of that.  That you can see is a Polaroid  15 and I would like to get copies of that for my friends.  16 THE COURT:  All right.  I don't think your friends will object  17 if you extract that exhibit and have it copied.  18 MR. GOLDIE:  None whatsoever.  19 MR. RUSH:  20 Q   Now, Mr. Joseph, you made mention of a trunk or trunks  21 that were kept to house skins such as the one you have  22 identified in court for us today.  Are these trunks  23 kept by -- well, are they kept by your family?  24 A   Yes.  25 Q   Okay.  And are they kept to your knowledge by other  26 Wet'suwet'en families?  27 A   Yes.  28 Q   And do these trunks contain items which would be  29 utilized at the Feast?  30 A   Yes.  31 Q   And what types of -- is this -- are these items saved  32 in these trunks?  33 A   Yes.  34 Q   And what types of things would be in these trunks?  35 A  Well, there is everything.  There is towels, tea  36 towels and other glassware, chinawear and people are  37 always -- when they are out shopping, they -- you  38 always see people picking up things.  Usually you  39 think they are shopping for themselves, but they have  40 always got in their minds this Feast.  There is always  41 the Feast coming up for Wet'suwet'en.  And they are  42 gathering these materials all the time.  That's why  43 the trunks are kept.  They very seldom buy something  44 for their own use.  It's always at Feast that you get  45 these articles.  46 Q   All right.  Now, the mooseskin that you have  47 identified for us in court today, were there other 1775  Albert Joesph (for Plfs.)  In Chief by Mr. Rush  1 types of skins that were considered of value among  2 Wet'suwet'en people?  3 A Yes.  4 Q What was another type of skin?  5 A A caribou.  6 Q And was that used in a way that was similar to the  7 type of skin that you have identified for us?  8 A Yes.  9 Q At the Feast that you have been talking about where  10 the name Sowiis was passed on, were there a number of  11 the kind of goods and materials that you have  12 described in court distributed at that Feast?  13 A Yes.  14 Q Now, I think you've indicated that monies and goods  15 were collected throughout the Feast.  And is there one  16 major collection that occurs after the naming or at  17 least after the presentation, the first presentation  18 of the chief?  19 A Yes.  20 Q And in that case is it the House chief who leads off  21 to make the contributions to that -- to that pot?  22 A Not always.  23 Q All right.  Who normally leads off?  24 A Like if the stone is for the House chief's uncle,  25 nephew's family, well, that family would be first to  26 make -- put money in the collection.  27 Q All right.  Did Woos contribute at this Feast?  28 A Yes.  29 Q And his House and clan contributed?  30 A Yes.  31 Q And similarly, other Gitdumden clans?  32 A Yes.  33 Q And when the contributions are made, is it announced?  34 A Yes.  35 Q Now —  36 THE COURT:  I am sorry, you mean announced that a collection has  37 been taken?  3 8 MR. RUSH: Announced — no.  39 Q Is it announced who makes the contribution?  40 A Yes.  41 Q On the Feast?  42 A Yes.  43 Q The individual person --  44 A Yes.  45 Q -- is announced?  Do you know or recall how much in  46 total was collected at the Feast where Sowiis took the  4 7 name? 1776  Albert Joesph (for Plfs.)  In Chief by Mr. Rush  1 A It's around eight thousand.  2 MR. GOLDIE:  I am sorry, what was that?  3 MR. RUSH:  4 Q Around eight thousand?  5 A Eight thousand.  6 Q All right.  Now, this collected money is then  7 distributed back to the witnessing chiefs, is it?  8 A Yes.  9 Q And is -- are the expenses paid before the  10 distribution?  11 A Yes.  12 Q And these are the expenses for the taking care of the  13 funeral?  14 A Yes.  15 Q And is a form of interest paid with the payment back  16 of the funeral expense?  17 A Yes.  18 Q Okay.  Now, is money paid to the chiefs who travel to  19 the Feast?  20 A Yes.  21 Q Okay.  And is there a Wet'suwet'en name for this?  22 A For the people that travel, yes.  23 Q What's that name?  24 A It's Tai niss sa diil.  25 Q Those are the people who travel?  26 A Yes.  27 THE INTERPRETER:  277.  2 8 MR. RUSH:  29 Q And this is a form of token payment for their coming  30 to the Feast?  31 A Yes.  32 Q And is all of the money that is collected distributed  33 after the expenses and interest have been paid?  34 A Yes.  35 Q It's distributed back around to the witnesses, is it?  36 A Yes.  37 THE COURT:  There wouldn't be a full return, would it?  38 A Pardon.  39 THE COURT:  It wouldn't be a full return?  40 A They keep passing money around till it's -- there is  41 none left.  42 THE COURT:  But if a chief donated or contributed $50.00 and  43 expenses had to be taken out of pot, there wouldn't be  44 $50.00 left to pay him back?  At least that's the way  45 I would do the accounting.  Mr. Rush asked you and you  46 said yes, they took the expenses out.  47 A Yes.  The expenses is like if your father's clan 1777  Albert Joesph (for Plfs.)  In Chief by Mr. Rush  1 bought a stone for -- and he was asked to contribute  2 to that stone and the stone was six hundred, and if  3 one individual put in three, the other uncle may put  4 in another three.  So when the collection is made for  5 that stone, they would be given back the three  6 hundred.  7 THE COURT:  Yes.  8 A   But after that then the interest comes in maybe $50.00  9 in a jacket or $50.00 in a radio.  That's the interest  10 that -- material and money.  11 THE COURT:  Yes.  12 A   Is what they get back.  13 MR. RUSH:  14 Q   Is it sometimes, though, that a person might  15 contribute at a Feast, say, a sum of $50.00, but at  16 the same Feast would receive back as a gift only  17 $35.00?  18 A   Yes.  19 Q   Okay.  20 A   Yes.  21 Q   How does that -- does that balance out over time or --  22 A   Yes.  23 Q   What happens in the difference?  24 A  Well, there is -- if there is a guest there that's  25 just a witness and not from the father's clan, usually  26 happens you don't -- you are not contributing  27 anything, but you are paid there as a guest and a  28 witness.  29 Q   And that person could come away with less than he or  30 she contributed?  31 A  As a guest?  32 Q   Yes.  33 A   No.  You're not contributing anything.  You are a  34 witness.  35 Q   Oh, I see.  You couldn't contribute anything in that  36 situation?  37 A   Yes.  38 Q   All right.  I see.  But let me ask this question a  39 little differently.  Could a member of the -- could a  40 guest of one of the clans contribute $50.00 and come  41 away with $75 in goods or value?  42 A  A guest?  43 Q   Yes.  From one of the clans, like let us say one of  44 the chiefs who would contribute.  45 A   Yes.  46 Q   That could happen?  47 A   Yes. 177?  1  Q  2  3  4  A  5  Q  6  7  8  A  9  Q  10  A  11  Q  12  13  A  14  Q  15 THE  COURT  16  17 MR.  RUSH:  18 THE  COURT  19 MR.  RUSH:  20  21  Q  22  23  A  24  Q  25  A  26  27  Q  28  A  29  Q  30  A  31  Q  32  A  33  Q  34  A  35  Q  36  37  38  A  39  Q  40  41  42  A  43  Q  44  A  45  Q  4 6 THE  COURT  47  Albert Joesph (for Plfs.)  In Chief by Mr. Rush  All right.  Is it the case that it is mainly those  people who are the hosts who do the -- who give the  contribution?  Yes.  And is it -- is it the case that when they are the  guests at a Feast at another time, that they will then  receive the contributions for witnessing?  Yes.  Or the gifts for witnessing?  Yes.  The guests do not always make contributions at the  Feast, or do they?  Yes, they do.  But —  :  I am sorry, Mr. Rush, I just wrote down a moment ago  guests don't contribute.  Okay.  I think in certain situations they do.  :  All right.  And I want to be sure that Mr. Joseph explains those  situations where they do.  Are there some occasions, Mr. Joseph, where the guest,  even though a guest might make a contribution?  Yes.  Okay.  And what would be that situation?  If the host that's putting on the Feast was of your  father's clan, you are free to contribute to that.  Okay.  So in that situation --  Yes.  -- you would be -- you as a guest --  Yes.  -- would be a contributor as well as a receiver?  Yes.  Now, food is distributed at the Feast as well?  Yes.  And food is distributed in the way in the manner that  you've described that materials and money is  distributed?  Yes.  Okay.  And is there a Wet'suwet'en word for that food  which is received and taken away by the guests at a  Wet'suwet'en Feast?  Yes.  And what's that?  Ts'a deel dsak.  That's 278.  :  Is this a convenient time to take the afternoon  adj ournment? 1779  Albert Joesph (for Plfs.)  In Chief by Mr. Rush  1 MR. RUSH:  Yes, it is.  2  3 (PROCEEDINGS ADJOURNED PURSUANT TO AFTERNOON BREAK)  4  5  6 I hereby certify the foregoing to be  7 a true and accurate transcript of the  8 proceedings herein to the best of my  9 skill and ability.  10  11  12 Laara Yardley,  13 Official Reporter,  14 United Reporting Service Ltd.  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  4 5 (PROCEEDINGS RECONVENED PURSUANT TO THE AFTERNOON  4 6 ADJOURNMENT)  47 1780  Alfred Joseph (for Plfs.)  In chief by Mr. Rush  1 THE REGISTRAR:  Order in court.  2 MR. RUSH:  3 Q   Now, Mr. Joseph, you talked about the Wet'suwet'en  4 name for food that is distributed and taken by guests  5 at a Wet'suwet'en Feast, and you gave us that name.  6 Is there also a situation where a specific gift could  7 be given to a person at a Wet'suwet'en Feast?  8 A   Yes.  9 Q   And is there a name in Wet'suwet'en for that specific  10 gifting?  11 A   Yes.  12 Q   And what's that?  13 A  Any article that's given to -- to the guest is -- if  14 it's more than one, it will be Bats'a diy diin k'at.  15 Q   These 279.  Now, after the distributions of the money  16 that's collected or of the food and specific articles,  17 is there then a separate collection for each of the  18 persons who will take a name?  19 A   Yes.  20 Q   Okay.  And these individual collections again are made  21 from the host clan?  22 A   Yes.  23 Q   Okay.  And then is there a separate distribution in  24 respect of each person who takes a name?  25 A   Yes.  26 Q   And did this occur at the Feast where Sowiis took her  27 name and where Wisalop took his name?  28 A   Yes.  29 Q   Now, this was -- this was -- at the Feast that you're  30 talking about in October of 1986, the names that were  31 passed, were they head chief names?  32 A   No.  33 Q   These were sub-chief names?  34 A   Yes.  35 Q   In the Gitdumden Clan?  36 A   Yes.  37 Q   Now, after the distributions have occurred, as you  38 have indicated, is it then the responsibility of the  39 head chief of the House to announce where the person  40 will sit?  41 A   Yes.  42 Q   Okay.  And after that occurs, is there an occasion  43 during the Feast where the host speaks and where the  44 guests speak?  45 A   Yes, after -- after all the business has been done and  46 all -- everyone's been paid, then the host clans start  47 to -- start their speeches to the guests, and it's at 1781  Alfred Joseph (for Plfs.)  In chief by Mr. Rush  1 that time they indicate who will sit where in a Feast  2 hall, who will assist the chief in his territory, and  3 what area the young person will be using on the head  4 chief's territory.  5 Q   If this had been a Feast in which a head chief name  6 had been passed, would there have been speeches about  7 the ownership of the territory?  8 A   Yes.  9 Q   Can you tell us in that situation what has been said  10 in past Feasts where you have attended where the name  11 of a head chief is passed to a new holder?  12 A   Yes, when there is -- a head chief name is passed, and  13 the person that takes the name is told of where that  14 chief's territory is, and he's told that he is  15 responsible for -- for that territory.  He's told that  16 he is responsible for the House that he's the head of,  17 and he's told of the boundaries and what area the  18 territory is.  And it is repeated by all the head  19 chiefs, the sub-chiefs of that clan are giving their  20 support to this -- to a new chief, and they're asking  21 the guests at that time to speak to what happened.  22 Q   Now —  23 A  And when the host clan quits speaking, have all  24 spoken, then they turn the floor over to the guests.  25 Q   And the guests speak?  Is that their -- their turn to  26 speak then?  27 A   Yes.  28 Q   Now, I want to first ask you about the Feast that  29 we're talking about in October of 1986.  What was said  30 in the case of the chiefs or the sub-chiefs who took  31 the name at that time?  32 A   They are told that they are now taking the first step  33 into taking a higher name in the future, that they  34 should conduct themselves the way a -- the chief --  35 the high chiefs, and that they are -- in the future  36 will be depended on by people, and that is always --  37 that's always -- advice always given at a Feast.  38 Q   In the case of a sub-chief, is mention made of the  39 territories by the witnessing chiefs?  40 A   Yes.  41 Q   Okay.  And what do you recall being said at the Sowiis  42 Feast?  43 A  Well, it's -- the guests always give this same advice  44 to them, and they are told that the clan that --  45 whichever clan is speaking agrees with what's been  46 done, and that it is the proper way to conduct the  47 business, and that they're always reminded of the 1782  Alfred Joseph (for Plfs.)  In chief by Mr. Rush  1 past, of how the territory was used by -- by the House  2 chiefs, and that they -- they should do the same, that  3 they should take care of the land, take care of  4 whatever territory that they are going to use.  5 Q   In the -- in this -- in a Feast where a high chief  6 name is passed to a new holder, what, if anything, is  7 said by the witnessing chiefs about the territory?  8 A   There is always -- a new chief is always told that --  9 what the responsibilities are for -- for a new chief.  10 If it's a young person, the responsibility is always  11 emphasized, and -- and the use of the territory is  12 also discussed and conservation.  And they are told  13 that if they have never been on a territory, that the  14 previous owners or the father, if they happen to be on  15 their father's territory and they're moving to a new  16 area, they are told that they should ask for advice  17 from whichever clan is speaking if they know of their  18 territory.  19 Q   Is the chief's ownership of the territory mentioned at  20 this time?  21 A   Yes.  22 Q   Is anything said about the -- by the witnessing chiefs  23 about the history or the past of the crests of the  24 chief, the high chief that takes a name in that  25 situation?  26 A   Yes, that is always told at a -- at the end of this  27 Feast, and they are told how the crests have been  28 acquired by previous chiefs.  And they are always  29 reminded they are responsible to their House and to  30 their father's clan.  31 Q   Now, does -- does the speaking by the witnessing  32 chiefs, does that bring the Headstone Feast to a  33 close?  34 A   Yes.  35 Q   Okay.  And what you've described as the speaking by  36 the witnessing chiefs, is that -- at a Wet'suwet'en  37 Feast, is that similar or different from what happens  38 at a Gitksan Feast?  39 A   It's similar.  40 MR. RUSH:  Okay.  Now —  41 MR. GOLDIE:  Is that question directed to the Headstone Feast?  42 MR. RUSH:  43 Q   Yes.  44 Now, Mr. Joseph, you've talked about the name  45 holder and the taking of the name.  What happens at  46 the next Feast with this new name holder of the  47 chief's name? 1783  1  A  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  Q  20  A  21  Q  22  23  24  25  A  26  Q  27  A  28  Q  29  A  30 THE  COURT  31  32 MR.  RUSH:  33  Q  34  35  36  37  A  38  Q  39  40  A  41  Q  42  43  A  44  45  46  47  Alfred Joseph (for Plfs.)  In chief by Mr. Rush  The -- the new holder of a name is -- always has to  enter in a Feast hall for the first time since taking  a different name or new name, and when that happens,  he is seated by the host clan, and always it will be  different from his -- where the person used to sit  before.  He'll be sitting with different people.  He  may -- he may move back against the wall from the  front or he may move -- move to a different seat.  So  when that happens, the House chief will go to this new  chief that's been seated and will tell that person now  you have been seated by -- by the guests who have  invited us here and you -- when a person has taken a  new -- new seat, he -- he or she has to pay for that  new seat again.  The payment is -- is to the host clan  for seating this new chief.  That is when another  collection is made by the clan of the new chief or the  House makes that collection first and the other Houses  in that clan helps this person.  And does that happen at the next Feast?  Yes, he has to be a guest before that happens.  Just to return to the -- the Headstone Feast, during  the time of the speeches that are made at the end of  the Feast, is the -- is the land question raised  during those speeches?  Yes.  Or has it been?  Yes.  Do you know was it raised at Sowiis's Feast?  Yes.  :  I'm not sure what you mean by the land question, Mr.  Rush.  The -- the rights of the Wet'suwet'en people to their  land, are those questions -- and the rights of the  Wet'suwet'en chiefs to their land, are these questions  that are raised in that way?  Yes.  At the Sowiis Feast in October of 1986 do you recall  how these questions were talked about at the Feast?  Yes, they were talked about.  And do you remember what was said or how the questions  were raised?  We -- it has been brought up at every Feast in the  last ten years, and before that it was always raised  by a few of the older chiefs, but it's been more in  the last ten years.  Every clan is aware of -- of what  is going on, and it is brought up at every Feast. 1784  1  Q  2  3  4  A  5  6  7  8  9  10  11  12  13  14  15  16  17  Q  18  19  A  20  Q  21  A  22  Q  23  A  24  Q  25  A  26  Q  27  28  29  A  30  Q  31  A  32  Q  33  A  34  Q  35  36  A  37  Q  38  A  39  Q  40  41  A  42  43  Q  44  A  45  46  47  Alfred Joseph (for Plfs.)  In chief by Mr. Rush  And in respect of the Sowiis Feast, can you recall  what was said at that Feast by any of the chiefs?  Or  what you said, for that matter, if you talked?  Well, it's always -- I always bring up, when I'm  speaking, that we are in -- in the process of going to  court or we bring up the land, our land.  Our  ownership and jurisdiction over the land has to be  talked about, and that is always touched on.  And the  chiefs -- when -- other clans will talk about the same  subject.  Like I said before, they've been brought up  in the past, but it was only brought up by two or  three chiefs in a Feast, and it wasn't -- it was just  a reminder by these chiefs, and that kept on, but now,  today, it is much more.  You could -- it's much more  visible what we are doing, so it -- it is brought up  at every Feast.  You -- you said that at this Feast there was food that  was distributed, and was food served at the Feast?  Yes.  And it was eaten at the Feast too --  Yes.  -- was it?  Yes.  Was there wild game that was distributed at the Feast?  Yes, there always is.  Okay.  And do you -- do you remember at this  particular Feast in October of 1986 what game was  distributed?  There was moose meat and beaver meat.  And were there any berries --  Yes.  -- distributed?  Yes.  Okay.  Do you remember if there was any fish  distributed?  Yes.  Was that salmon?  Salmon, yes.  And is it said where this -- these particular foods  came from?  Yes, it's always announced where -- where -- wherever  the meat is taken from.  Okay.  And why is that so?  It's always been that way, where food that's given out  at the Feast is always announced that it -- it came  from different territory, or times -- at times it is  said it is given by -- by a son-in-law. 1785  Alfred Joseph (for Plfs.)  In chief by Mr. Rush  1 Q   And is it said which territory it comes from?  2 A   Yes.  3 Q   And does that relate to the territory of the chief  4 that takes the name?  5 A   Yes.  6 Q   All right.  Now, I -- you've been discussing a  7 Headstone Feast and what's occurred at this Headstone  8 Feast for Sowiis.  Now, I want to ask you some  9 questions about another kind of Feast, that is a Smoke  10 Feast.  And a Smoke Feast is a Feast that occurs  11 shortly after a chief has passed on, is that so?  12 A   Yes.  13 Q   Okay.  Can you just tell us how that happens, how it  14 is organized and who calls the Smoke Feast?  15 A   It is organized by the -- the family of the deceased,  16 and the House chief is also there.  17 Q   And is the Smoke Feast intended to announce the death  18 of the chief?  19 A   The Smoke Feast is -- is a place where announcements  20 are made after the -- a chief has passed on.  It is a  21 place where the person selected to do the work and  22 make the funeral arrangements -- these people are all  23 named at this Smoke Feast.  24 Q   Okay.  Now -- and was there a recent Smoke Feast that  25 you attended in which this happened?  26 A   Yes.  27 Q   And which chief did that involve?  28 A   It involved the death of Tsibasaa.  29 Q   Tsibasaa?  30 A   Yes.  31 Q   And who was the holder of that name that passed on?  32 A   Jimmy George.  33 THE INTERPRETER:  66.  34 MR. RUSH:  35 Q   Now, Mr. Joseph, in addition to determining who will  36 look after the obligations of the funerals, what else  37 occurs at the Smoke Feast?  38 A  Well, it's all those things, all the -- like  39 everything is announced there.  But -- and the  40 different tasks are given out.  But it's a meeting  41 also within the clan itself that's giving the Smoke  42 Feast, but it isn't -- isn't -- whatever plans are  43 made -- made at that aren't announced until the  44 Funeral Feast.  It may involve passing of names, and  45 it isn't announced but -- to the guests, but the clan  4 6 themselves will have a meeting at that time on how the  47 Funeral Feast is going to be handled. 1786  1  Q  2  3  A  4  5  Q  6  A  7  8  9  10  Q  11  12  A  13  MR.  RUSH:  14  THE  COURT  15  MR.  RUSH:  16  THE  COURT  17  MR.  RUSH:  18  19  20  THE  COURT  21  MR.  RUSH:  22  Q  23  24  A  25  A  26  A  27  28  29  30  31  32  33  34  Q  35  36  A  37  Q  38  39  A  40  Q  41  42  A  43  Q  44  A  45  Q  46  47  Alfred Joseph (for Plfs.)  In chief by Mr. Rush  And are there guests who are invited to witness what  occurs?  No, it's -- it's -- it will be done before or after  the Smoke Feast.  Okay.  But it is -- the -- the guests only know that  different people have been hired.  But the guests will  already know who -- who is going to be hired because  of the -- the father's side of the deceased.  Okay.  Are there guests, are there invited guests at  the Smoke Feast?  Yes.  Okay.  :  I'm sorry, there are?  Yes.  I think --  :  I thought he said there were not.  I think Mr. Joseph was talking about a consultation  that occurred just prior to the Smoke Feast.  If I  can --  :  All right.  The decisions that are taken among the clan members  themselves.  Yes.  Are these taken at the Smoke Feast?  Usually.  Sometimes before the Smoke Feast or after,  but they -- they invite the guests in to announce  the -- the workers.  Workers that are -- what they --  they know who the workers are, but what each -- each  person is going to be doing is announced.  Some may be  buying the casket, some may be paying for the -- for  clothes, and some may be in transporting and digging  of the grave.  It's all announced at the Feast.  And that's -- that's announced -- is that announced at  the Smoke Feast?  Yes.  Okay.  And it's there that the witnesses are called,  and they do -- they witness these announcements?  Yes, yes.  But you say that many of the -- these decisions are  taken in a consultative way in the clan?  Yes.  Before or after?  Yes.  Okay.  Okay.  Now, are -- you've described the -- the  Headstone Feast.  Are there as many people invited to  the Smoke Feast as the Headstone Feast or is this -- 1787  1  2  A  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  Q  19  20  A  21  Q  22  A  23  24  Q  25  A  26  Q  27  28  29  A  30  31  32  33  34  35  36  37  38  39  40  41  42  Q  43  A  44  Q  45  46  47  A  Alfred Joseph (for Plfs.)  In chief by Mr. Rush  is this smaller, is this a smaller Feast?  It's a smaller Feast, but yet it's -- the same thing  happens.  There's speeches made by both sides, and  the -- I -- the -- the Smoke Feast is not just at the  time of a chief's death.  It also happens when -- when  a person dies in another village.  And in the past  when news comes from village to village and there is a  death in Babine or Moricetown and there wasn't -- the  communication wasn't that good and transportation  wasn't that fast, in those days when the word comes,  then they have a Smoke Feast at that village, even  though the funeral isn't going to be held there.  There may be a Smoke Feast at Babine; there may be a  Smoke Feast in Hagwilget when there is a death in  Moricetown.  So the -- the dead chief in Moricetown  relatives at Hagwilget will put up a Smoke Feast and  the same thing in Babine or Burns Lake.  All right.  Now, are there goods that are given out at  the Smoke Feast?  Mostly smokes or any --  Smokes?  -- things.  Yes.  It's just small things.  Candies and  cookies.  And is there a Wet'suwet'en name for the Smoke Feast?  It is G'et'anaag'eltset.  I think that's 283.  Now, can you say, Mr. Joseph, why it is necessary  to have witnesses at this Smoke Feast?  Well, it's another way of -- we always use witnesses,  and if different -- if the person that is hired to do  something, like buying a casket or digging a grave,  and if that person can't do it, if he's sick, and that  person will delegate someone to take his place, and he  will be paid if he's asked to put in money.  And if  he's not present, he will -- he will still be -- a  relative of his will be asked where is this chief.  If  he's out of the -- out of the country, and he doesn't  put in money, yet when -- when the settlement is made,  that chief will be paid whether he was there or not,  whether he contributed or not, because he is of the  father's clan.  Those things have to be witnessed.  Were there witnesses at Tsibasaa's Smoke Feast?  Yes.  And what you've described as the types of goods that  were distributed, did that occur at Tsibasaa's Smoke  Feast too?  Yes. 17?  1  Q  2  3  4  A  5  Q  6  7  8  A  9  Q  10  11  A  12  Q  13  A  14  15  16  17  Q  18  A  19  Q  20  21  A  22  23  24  25  26  27  28  29  30  Q  31  32  A  33  Q  34  A  35  Q  36  37  38  A  39  Q  40  41  A  42  Q  43  44  45  A  46  Q  47  Alfred Joseph (for Plfs.)  In chief by Mr. Rush  And the kind of witnessing of the business  transactions, if I may call them that, did that occur  at the --  Yes.  -- Tsibasaa Feast?  And you say that there were -- I think you said  that there were speeches at the Smoke Feast as well?  Yes.  And do these -- do these speeches address the chief,  the chief that's just passed on?  Yes.  And do they address other issues?  No, it's just to do with the Feasts -- I mean the  death of a chief.  And they announce -- I mean, the  time of a funeral and where it will be held, that is  announced.  Okay.  And that is usually within a few days, is it?  Yes.  All right.  Is there any collection that is taken at a  Smoke Feast?  At times there are for some of the people.  Some of  the hosts have a small collection because they -- they  didn't have the time to get to the store or -- or  weren't -- were busy, and they have -- they put in  money in place of cigarettes or -- or whatever that's  supposed to be used.  And when that happens, usually  instead of giving cigarettes to a person, if they know  it's a non-smoker, he gets money instead of cigarettes  or --  All right.  Are there more non-smokers in the Smoke  Feast today?  It's happening.  And have you attended a Gitksan Smoke Feast?  Yes.  And can you say anything about whether the Gitksan  Smoke Feast is similar or different from the  Wet'suwet'en?  They are similar.  Okay.  Is it -- is it common for you to be invited to  Gitksan Smoke Feasts?  Yes.  All right.  Is there -- are there -- similarly, are  there Gitksan people invited to the Wet'suwet'en Smoke  Feast?  Yes.  And are -- when these cross-invitations occur, are  people -- how are they chosen to be invited?  Is there 1789  Alfred Joseph (for Plfs.)  In chief by Mr. Rush  A  1  2  3  4  5  6  7  8  9  10 MR.  11  12  13  14 THE COURT  15  16  17 MR  A  Q  A  RUSH  some relationship of some kind or another?  Yes, there is a relationship.  Like for myself, my  wife is Gitksan, and I am invited to the Gitksan  Feasts when she has to go there.  All right.  Now, Mr. Joseph, is there -- is there any  singing at the Smoke Feast?  No.  That's -- that does not occur there?  No.  My lord, I'm about ready to move to a wholly new  subject, and I think it might be appropriate for me  just to ask if we can adjourn the examination now  until tomorrow morning.  Yes.  All right.  Are you ready to carry on with the  other matters that we were going to discuss or do you  want a few minutes adjournment?  RUSH:  Well, perhaps we could take a few minutes.  18 THE COURT:  Yes.  All right.  I'll be ready whenever you're  19 ready.  20 THE REGISTRAR:  Order in court.  21  22 (PROCEEDINGS ADJOURNED AND RECONVENED PURSUANT TO A  2 3 SHORT BREAK)  24  25 THE REGISTRAR:  Order in court.  26 THE COURT:  Well, gentlemen, I want to say first that I intend  27 absolutely no criticism of anyone, and I recognize  28 that this is a difficult and possibly unique case, but  29 I have to say that I think the completion of three  30 witnesses and part of the evidence in chief of a  31 fourth in nearly six weeks is sufficiently indicative  32 of trouble that I have to raise it with counsel now.  33 I have invited counsel to make suggestions about how  34 the trial of this part of the case might be expedited  35 or hastened, and I shall be glad to hear what counsel  36 have to say in that connection.  Does anyone wish to  37 volunteer?  38 MR. GRANT:  Maybe I should volunteer first.  39 THE COURT:  Mr. Grant.  Thank you.  40 MR. GRANT:  My lord, on behalf of the Plaintiffs, my lord, we  41 have seriously considered the development into the  42 evidence in this case over the last six weeks, and we  43 have considered methods to expedite certain aspects of  44 the trial.  As you may recall yesterday, Mr. Rush  45 referred to an important -- an important part of the  46 trial process dealing with the evidence of territorial  47 boundaries and place names thereon.  It is our view 1790  Submissions by Counsel  1 that this is a very potentially time-consuming  2 process, and as one element of our proposal to  3 expedite the trial we have focused on the evidence of  4 the territorial boundaries, which are demonstrated in  5 Exhibit 5.  6 We propose to approach this in a number of ways.  7 Firstly, we propose now to select certain territories  8 within the territorial boundary as representative of  9 the issues in this case.  We will present detailed  10 evidence with respect to those territories through  11 Indian witnesses.  The selected territories may well  12 include some of those that have already been referred  13 to in the evidence to date.  This evidence would  14 establish the location of geographic landmarks and  15 boundaries of the territories.  However, it would go  16 further, and it would address the authority of the  17 hereditary chiefs of those specific territories to the  18 extent that that has not already been covered in the  19 evidence you already heard.  The evidence would  20 exemplify the ownership and jurisdiction of the  21 Gitksan and Wet'suwet'en chiefs over their  22 territories.  Of course, counsel for both Defendants  23 would have a full opportunity to cross-examine the  24 group -- the groups of witnesses who have knowledge of  25 each of these territories.  26 With respect to the balance of the territories,  27 which are shown on Exhibit 5, we propose that the  28 evidence of place names, boundaries, and significant  29 locations within the territories should be given by  30 Mr. Neil Sterritt.  Mr. Sterritt has interviewed well  31 over 80 people over a long period of time, and the  32 basis for his evidence is this research work.  In  33 other words, Mr. Sterritt is the person who can  34 describe more territories than any other single  35 person.  His field books have already been provided to  36 counsel for the Defendants.  37 Photographs I will come to in a moment, but maps of  38 the territories, which are still in the process of  39 being completed, will be provided to the Defendants  40 prior to him giving evidence.  We seek in return  41 agreement by all counsel, by all parties that they  42 would not raise objections to the admissibility of Mr.  43 Sterritt's evidence on the basis of hearsay, even if  44 that evidence is based on statements made to Mr.  45 Sterritt by third parties.  46 We also will lead evidence in -- in conjunction  47 with Mr. Sterritt's evidence of certain of the 1791  Submissions by Counsel  MR.  MR. GRANT  9  10  11  12  13  14  15  16  17 THE  18  19  20  21 MR.  22 THE  23  24  2 5 MR.  2 6 THE  27  2 8 MR.  29  30  31  32  33  34  35  36 THE  37  38  39  4 0 MR.  41  42 THE  4 3 MR.  44  45  46  47  informants of Mr. Sterritt to speak to several  territories.  In this way, counsel for the Defendants  will have an opportunity to cross-examine other  persons on a number of specific territories.  GOLDIE:  Excuse me.  So that I get my note down correctly,  my lord, this would be the informants of the six  territories or the territories that were selected  under item one?  Is that what you're referring to?  No, I'll -- we -- with respect to the specific  territories that we set out in the first item, we will  lead witness' evidence on those directly.  Mr.  Sterritt may give some evidence on those as well, but  all witnesses will be dealt with with respect to those  territories.  All informants upon which Mr. Sterritt  would rely would give direct evidence.  There are  other witnesses.  I'm sorry, I'm not following you, Mr. Grant.  Now, I  thought I was, but are you saying that as to the  representative territories you would proceed  conventionally?  Yes.  All right.  As to the remainder of the territories,  you would expect the burden of the evidence to be  given by Mr. Sterritt --  Yes.  -- based upon his interviews?  And what is it you're adding to that?  And in order to give -- to -- to allow the  Defendants to go -- if they -- to allay concerns about  cross-examination with respect to territories, other  than the specific territories that we will focus on,  we will produce a sampling of one or two informants of  Mr. Sterritt, who will speak to those -- to -- who  can -- any one of whom can speak to several  territories.  Well, are the informants or the sampling of  informants you're proffering the ones who have  informed Mr. Sterritt about the -- about the  territories he will be covering?  They will be a few of the people of the 80 people,  over 8 0 people who have informed him.  Yes.  And -- but what they would do is they would be ones  who we'd see as would have been providing him  information on several territories so that it would  give all parties a chance to examine on different  territories, more than one or two.  COURT:  GRANT  COURT  GRANT:  COURT:  GRANT:  COURT:  GRANT:  COURT:  GRANT: 1792  Submissions by Counsel  1 THE  2  3  4  5  6  7  MR.  THE  MR.  COURT  GRANT  COURT  GRANT  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25 THE  26  2 7 MR.  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  COURT  GRANT  Is it your suggestion that Mr. Sterritt will cover  all the territories except those included in the first  category?  Yes.  Yes.  In light of the number of persons who have informed  Mr. Sterritt, the proposal to file affidavits of those  persons, as was suggested with respect to those who  informed Mr. Joseph, is, in our submission,  unrealistic, and, my lord, I would like to say that in  the context of this case it may ultimately be unfair  because for -- to have the Gitksan the Indian  witnesses, whose perspective is an oral culture and  who are unfamiliar with the court forum, to have their  first contact with the court forum in the form of  cross-examination is, in our view, something that will  seriously prejudice the Plaintiff's case.  As you have  seen through the weeks of evidence, this is an oral  culture.  These are two oral cultures you're dealing  with, and we wish the court to see any witnesses who  are called give direct evidence prior to  cross-examination.  And if these witnesses must give  evidence, we want the opportunity to lead their direct  evidence before they are subject to cross-examination.  Well, that's what's got us in all the trouble, Mr.  Grant.  That doesn't solve the problem at all.  That's why we're saying to allay this concern to  have Mr. Sterritt carry the burden of the vast  majority of the territories.  Of course, if the proposal dealing with affidavits  was followed, it's our view that the principle of  using affidavits and then allowing them to be  cross-examined generally would take away any benefit  of this proposal because we're looking here at, when  you combine the witnesses, the informants to Mr.  Sterritt and those to Mr. Joseph, at close to a  hundred people.  And even if we only talk about two  hours for each of them, we're talking about 50 days.  This, in our view, my lord, is not a useful  resolution.  That is not a useful resolution to the  concerns we're addressing.  And as I said, this is the last type of case in  which we submit the Plaintiffs, who belong to an oral  culture, should be compelled to present their evidence  by affidavit.  As part of our proposal to expedite the evidence of  locations of geographical landmarks and territories, 1793  Submissions by Counsel  1 we have delivered today to counsel for the Defendants  2 a Notice to Admit with respect to photographs and the  3 locations and sites which are depicted in those  4 photographs.  In other words, they are labeled  5 photographs similar to what you dealt with with Mrs.  6 Ryan.  There are over 800 photographs of places within  7 the territory which form this body of evidence.  Mr.  8 Sterritt, of course, will be available in -- on our  9 proposal.  He will be able to be -- he will be  10 examined and cross-examined on this.  11 Another aspect of the evidence which we intend --  12 method of dealing with this territorial evidence we  13 intend to deal with in this way, my lord, we -- we are  14 in the process of preparing biophysical and historical  15 maps of the territory and the surrounding region.  16 These maps will include maps of the fishing sites of  17 the territories, such has been tendered through the  18 evidence of Mrs. Ryan.  We propose to tender these  19 maps under Rule 40, 42 in a similar matter as the  20 application made by the provincial Defendant.  When  21 the maps are available, we shall be filing a Notice to  22 Admit with respect to them, and we will tender the  23 maps of the fishing sites as evidence of the proof of  24 the name the location and the House which claims  25 ownership of each specific site.  This would have --  26 you have already heard extensive evidence of this from  27 Mrs. Ryan, and this will demonstrate it, and, of  28 course, shorten the calling of extensive evidence on  29 that point.  30 Then there are matters of the expert reports, which  31 we have also grappled with.  It is our view that there  32 are a number of non-contentious areas in certain of  33 our expert reports.  It is our intention, which we  34 have notified counsel in our letter of proposal  35 yesterday, to prepare and serve a Notice to Admit with  36 respect to those non-contentious areas prior to the  37 date of recommencement of the trial in September.  In  38 this way, we hope the trial process will move along by  39 allowing the court to focus on issues which are  40 central to the case while having a background of the  41 non-contentious evidence before it.  42 There is also commission evidence, my lord.  43 Extensive commission evidence has been taken to date.  44 This evidence in itself will take several weeks if  45 read in or if the court is required to review all of  46 the videos.  We propose by way of our Notice to Admit  47 that the video tapes would be tendered as exhibits at 1794  Submissions by Counsel  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  MR.  THE  MR.  COURT  GRANT  COURT  GRANT  the trial.  It is our intent that we would only refer  to an edited version of the video tape to provide the  court an opportunity of viewing the witnesses.  Of  course, counsel for either Defendant may refer to  different parts of the videos for any of those  witnesses.  And we propose that the transcripts be  marked as exhibits and be made available to the court  prior to the summer recess to enable the court to  review the evidence outside of the court hours.  And  we would only intend to refer to certain parts of the  transcripts as we proceed with the evidence.  My lord, based on the time schedule proposed by the  court for the fall of this year, we would estimate  that if agreement can be reached on these matters, the  evidence of the Gitksan and Wet'suwet'en witnesses,  including the evidence of Mr. Sterritt, which we --  which would probably be the longest of any one  witness, would take an additional 50 court days.  Fifty?  Fifty.  Yes.  If, on the contrary, we must produce each of the 100  persons who informed Mr. Sterritt and Mr. Joseph, we  anticipate that evidence alone would require 100 days  of evidence.  And we concur with the court that that  is not a satisfactory way to present the evidence in  the case, and that is why we are tendering this  proposal to you.  All right.  Thank you.  I'll no doubt have some more  questions for you, Mr. Grant, but I think it better  that I hear from counsel first.  GOLDIE:  My lord, there are certain obvious points about  this that I cannot comment on.  One would have to get  instructions.  The first suggestion is that there be a  test case consisting of a limited number of  Plaintiffs.  Assuming that those Plaintiffs included  those we have already heard and the remaining two  Wet'suwet'en witnesses, and assuming that the  Plaintiffs were at liberty to call other evidence, if  that's the proposal, then I would, as I say, I would  want to get instructions with respect to it.  I should add that early in 1986 I brought a motion  on to determine -- which had for its purpose  determining whether there could be a test case, and it  was stated at that time that each Plaintiff's case had  to be dealt with individually because each Plaintiff  had its -- his or her own claim and that it would be  THE COURT  MR. 1795  Submissions by Counsel  1 impossible to regard any one Plaintiff as representing  2 any other.  3 Now, with respect to Mr. Sterritt, I think I will  4 have to consider that.  The difficulty that one has  5 with Mr. Sterritt is not that he is a conduit for a  6 lot of information, but he expresses or purports to  7 express an opinion.  We foresaw this, and we prepared  8 interrogatories.  Those interrogatories we had to  9 finally get an order of the court to have completed.  10 They -- one of the questions was designed to ensure  11 that we knew something about the territory, indeed a  12 number of questions were, and we received what  13 purported to be maps of the territory which the  14 witness in the affidavit supporting the interrogatory  15 swore was his or her territory.  It now appears that  16 those maps cannot be relied upon.  17 The -- I -- I'm not going to go into any detail  18 with respect to the interrogatories.  They were very  19 carefully framed, and they were intended to meet the  20 very problem that we're now talking about.  They --  21 they have -- through the failure of the Plaintiffs to  22 deal adequately with them, we are now embarked upon a  23 case in which it is as if that information is of no  24 value.  25 One matter I should perhaps comment on, just so  26 that there is no misunderstanding, and that is that if  27 Mr. Sterritt's evidence was to be admitted, it would  28 not be on the basis, and I think my friend used the  29 word suggested, that affidavits be produced which  30 would verify the information.  I think your lordship's  31 ruling with respect to the evidence led by Mr. Rush  32 was not a suggestion; it was only if he undertook to  33 either call the witness or furnish an affidavit if  34 requested.  That was the only basis upon which your  35 lordship allowed that evidence to be heard.  It is not  36 a question of simply ignoring the law as it stands.  37 Neither your lordship nor we are enabled to do that.  38 Rather, it is a problem that the Plaintiffs have  39 created by the case that they decided to call and  40 realizing at this stage that it presents the problems  41 which they now acknowledge.  42 We received -- I can now, having made those  43 comments, go on and deal with some of the other  44 suggestions.  With respect to their mapping project,  45 I -- I can only say we'll be happy to see whatever  46 they propose, and we'll have to deal with that at the  47 time.  With respect to admissions in their experts' 1796  Submissions by Counsel  1 reports, again, we will be glad to consider them when  2 they come along, but that's -- that lies in the  3 future.  4 We received this afternoon a Notice to Admit with  5 respect to some 800 photographs, which so far as I am  6 aware we have not had produced before this, although I  7 asked for their production when Mr. Sterritt was  8 examined for discovery.  The 14 days that is provided  9 for dealing with a Notice to Admit will, I think, just  10 taking a quick look at these photographs, be too short  11 a time.  We will have to correlate them with the field  12 books which have been referred to.  And I would ask  13 for a direction from your lordship that we have 28  14 days to deal with a Notice to Admit.  15 So far as I am aware, the Notice to Admit which we  16 served on our friends with respect to documents, and  17 which they refused to admit, has not been recon-  18 sidered, and I would ask my friends to reconsider that  19 because that will facilitate the admission of  2 0 documents.  21 Now, that brings me to a further point, and that is  22 that I think, with respect, that the present under-  23 standing with regard to the admission of documents is  24 far too narrow.  Your lordship has not heard of this  25 because it has not been brought forward.  At the  26 present time the only common ground amongst us is that  27 we agree to dispense with certificates in respect of  28 archival documents, which is, of course, just plain  29 common sense.  I am concerned that that is too narrow.  30 We don't have an understanding amongst all three of us  31 of what constitutes archives.  It is far more narrow  32 than the understanding that counsel reached in the  33 Calder case, and that is -- has the potential for a  34 major problem of delay.  I mention that in passing.  35 Dealing with the commission evidence, I agree with  36 my friend that the transcripts ought to be filed, but  37 I don't think there is any requirement for a sampling  38 of the video.  The video was taken, at least so far as  39 we were concerned, to ensure that if there was a  40 question of competence, the trial judge would have the  41 opportunity of deciding any such objection with the  42 assistance of the video.  We are not raising any issue  43 with respect to competence.  I think the transcript is  44 sufficient in itself.  I can go a step further.  The  45 question of objections with respect to that evidence  46 was reserved for the trial court.  My proposal is that  47 the evidence would go in and that objections would be 1797  Submissions by Counsel  1 dealt with if the evidence was referred to in the  2 course of the trial or on argument, and I would see no  3 need to trouble ourselves about dealing with the  4 commission evidence other than marking the  5 transcripts.  6 THE COURT:  Well, I don't know anything about the commission  7 evidence.  How many witnesses were deposed in that  8 way?  9 MR. GOLDIE:  I think about eight or nine, I think.  10 MR. GRANT:  Eight.  11 THE COURT:  Eight.  And they were -- their evidence was taken by  12 whom?  13 MR. GOLDIE:  It was —  14 THE COURT:  By the Plaintiff?  15 MR. GOLDIE:  Yes.  These were all on the -- on the application  16 of the Plaintiff.  17 THE COURT:  And so the Plaintiff examined these witnesses in  18 chief?  19 MR. GOLDIE:  Yes.  20 THE COURT:  They were cross-examined and re-examined?  21 MR. GOLDIE:  Yes.  22 THE COURT:  Well, you wouldn't be seeking to call those  23 witnesses again, would you, Mr. Grant?  24 MR. GRANT:  No, it's not our intent.  Except that I have to  25 review the transcript of yesterday.  It may be that  26 out of what you raised yesterday there is some  27 matters.  But no.  28 THE COURT:  That's still only eight witnesses.  29 MR. GRANT:  But one of those witnesses, my lord, was -- gave  30 evidence for, I believe, 35 hours.  So that's --  31 THE COURT:  A short witness.  32 MR. GRANT:  Yeah, a short witness.  A short witness if we have a  33 24-hour court day.  34 MR. MACAULAY:  There is a problem with a couple of those  35 witnesses.  The Plaintiffs forgot to give us notice,  36 and the evidence was taken in our absence, and we  37 don't consider that evidence binding on us at all.  It  38 may be binding on my learned friend.  39 THE COURT:  All right.  40 MR. GOLDIE:  I think that is so, my lord.  Evidence taken in the  41 absence of one of the parties can't be binding on  42 them, but that doesn't prevent the transcripts being  43 tendered and accepted.  44 THE COURT:  As against the Provincial —  45 MR. GOLDIE:  As against —  4 6 THE COURT:   — Attorney general.  47 MR. GOLDIE:  As against the Crown in Right of the Province. 179?  Submissions by Counsel  1 THE COURT:  I suppose one could get very devious and make an  2 order under Rule 40 that the evidence of those  3 witnesses be adduced by the commission evidence  4 subject to them being called at the trial for  5 cross-examination by Mr. Macaulay.  6 MR. GOLDIE:  I couldn't comment on that.  7 MR. MACAULAY:  That would be a reasonable solution to that  8 problem, yes.  9 THE COURT:  Yes.  If the witnesses are available.  10 MR. GRANT:  The reason is one of these witnesses is a hundred  11 years old.  I mean, these are not witnesses that we  12 wish to have in the box in the courtroom.  Their  13 health is a serious matter.  14 THE COURT:  Well, I could order that —  15 MR. GRANT:  Mr. Macaulay may be able to arrange with us over the  16 long vacation to cross-examine those witnesses, if he  17 has a concern.  18 MR. GOLDIE:  I think your lordship's tentative ruling was the  19 better one.  And we'd simply have to take our chances.  20 Or if Mr. Macaulay wanted a witness cross-examined  21 or -- it would depend upon the circumstances at the  22 time.  23 THE COURT:  All right.  24 MR. GOLDIE:  And the medical certificate then is -- is possibly  25 of greater weight than one in anticipation.  26 I don't think I can usefully comment on any of the  27 other points, my lord.  The central feature that  28 the -- that the -- of the proposal is that there be a  29 test case, and if that can be -- if that can be  30 elaborated, because as it presently stands, it seems  31 to -- not to take into account the fact that we have  32 had six weeks of evidence already.  And that's just  33 one point.  I think the -- the point needs to be  34 elaborated considerably.  35 THE COURT:  Yes.  All right.  Thank you.  Mr. Macaulay.  36 MR. MACAULAY:  May it please your lordship, the proposal to  37 limit the evidence to six Houses, provided that's  38 fleshed out and the -- a good deal --  39 THE COURT:  I'm sorry, six Houses?  Mr. Grant didn't give a  40 number, I don't think.  41 MR. GRANT:  No, I didn't give — I said specific.  42 MR. MACAULAY:  Well, the number — I thought he was referring to  43 six, and if the number were less --  44 THE COURT:  Six is a good round number.  It's divisible by three  45 and two and things like that.  46 MR. GRANT:  Multiplied by it.  47 MR. MACAULAY:  Well, any less would be insufficient, in my 1799  Submissions by Counsel  1 opinion.  2 THE COURT:  Any less would be insufficient?  3 MR. MACAULAY:  Would be insufficient.  4 THE COURT:  Yes.  5 MR. MACAULAY:  And Houses would be -- would have to be selected  6 Houses in a manner so that all the issues that are  7 before the court can be addressed.  If, for instance,  8 none of the houses have what we call the overlap  9 problem facing them, then that wouldn't be a fair  10 selection.  11 THE COURT:  After six weeks, Mr. Macaulay, I don't even know  12 what the overlap problem is yet.  You are suggesting  13 that there are boundaries or territories that are --  14 MR. MACAULAY:  Yes, there are competing claims by neighbouring  15 nations and tribes.  16 THE COURT:  You mean outside?  17 MR. MACAULAY:  Outside.  For instance, the Nishga or Kitwancool  18 or others.  19 THE COURT:  Is that really a problem?  2 0 MR. MACAULAY:  Certainly.  21 THE COURT:  The most that could be done in this case would be a  22 declaration that would bind these parties.  23 MR. MACAULAY:  Well, yes, exactly.  But where a chief claims a  24 territory in the middle of which there is the -- an  25 Indian reserve occupied by Indians of another tribe,  26 he has a problem.  27 THE COURT:  Well, he certainly has a problem.  The most he could  28 get here would be a declaration that -- as against  29 these Defendants.  30 MR. MACAULAY:  Well, it's not as simple as that either.  We are  31 the trustees of that property.  At any rate, your  32 lordship can see the kind of problem that arises.  33 THE COURT:  Yes.  34 MR. MACAULAY:  I'm not trying to define it because it's a little  35 more complex than that.  36 THE COURT:  Yes.  Well, I would have thought that problem might  37 be solved by, assuming the Plaintiffs succeeded, that  38 they got a declaration they seek, subject to the  39 exceptions listed, one of which would include matters  40 of overlap.  But I --  41 MR. MACAULAY:  Well, I'm suggesting we can avoid — the — the  42 idea which appears to be a good one, and which we can  43 seek instructions, should involve the -- a careful,  44 thoughtful selection of -- of territories.  4 5 THE COURT:  Yes.  46 MR. MACAULAY:  So that a — the — all the issues that are a  47 problem to the government and to the Plaintiffs 1800  Submissions by Counsel  1 will -- can be dealt with by the court.  2 Now, about the -- the Notices to Admit concerning  3 maps and expert reports, all I can say is we haven't  4 got the expert reports yet, except for one.  That's  5 the famous report of Mr. Morrell, and we're missing  6 some appendices of his.  We have no maps at all, and  7 so what can we say about that.  Nothing at all.  8 The 800 photographs, I can tell your lordship we're  9 going to have very considerable difficulty.  No  10 English -- hardly any English place names are used, if  11 any.  The Defendant Province may be prepared massively  12 on this, but it will take us a considerable time to  13 find out where these tiny photographs are, you know,  14 what locations they cover, particularly with these  15 names, and I don't know -- I think 28 days is a pretty  16 optimistic -- if we dropped everything, I suppose we  17 might, but we have other things to do in the month of  18 July.  19 Now, I've already made a comment about commission  20 evidence.  There is another problem concerning  21 commission evidence, and that is the Attorney General  22 of Canada was not a party when the first witnesses  23 were examined in that way.  And I don't remember -- at  24 least three.  And then when we -- we weren't invited  25 in the case of two more.  2 6 THE COURT:  That was very rude.  2 7 MR. MACAULAY:  I beg your pardon?  2 8 THE COURT:  That was very rude.  29 MR. MACAULAY:  We weren't hurt, just perplexed.  30 MR. GRANT:  And they didn't come in one case where they were  31 invited.  32 MR. GOLDIE:  They showed good judgment.  33 MR. RUSH:  That was a cross-examination.  34 MR. MACAULAY:  I support what Mr. Goldie says about the videos.  35 That would be a very considerable burden on the court  36 and the parties if we had to go through the videos,  37 and particularly edited versions of the video.  That  38 wouldn't save time; that would add problems to those  39 already existing.  40 Now, I take the opportunity of referring back to  41 the experts' reports.  I -- I -- this -- it's  42 appropriate to ask for an order now for the listing  43 and production of all the material, including  44 interviews with the Plaintiffs, maps, and so on, on  45 which the experts rely.  Until that's done, for one  46 thing, there can be no admissions made of any kind  47 about experts' reports.  One expert's report may 1801  Submissions by Counsel  1 affect another, and in some cases they do -- they  2 overlap, and they cover somewhat the same -- same  3 ground.  So that before the Plaintiffs serve notice,  4 they could perhaps spend their time more usefully in  5 collecting all that material, and this may be an  6 appropriate time for your lordship to make an order in  7 that regard.  8 THE COURT:  Well, what is the situation about experts' reports?  9 MR. MACAULAY:  We haven't got them, except for one.  We have  10 summaries.  11 THE COURT:  I see.  You have summaries of them all?  12 MR. MACAULAY:  I stand corrected.  There are a few more that are  13 full reports or appear to be full reports.  14 THE COURT:  Yes.  15 MR. MACAULAY:  I take it we do have all the reports.  16 THE COURT:  Twenty-five of them?  17 MR. MACAULAY:  And they have ours.  18 THE COURT:  Is it 25?  19 MR. MACAULAY:  At the last count about that.  2 0 MR. RUSH:  Twenty-two.  21 MS. KOENIGSBERG:  Twenty-three.  There was a late arrival.  22 THE COURT:  What you're asking for is production of the full  23 reports?  24 MR. MACAULAY:  Well, we have to have that before we can make any  25 admissions.  But that's not the order I'm seeking.  26 The order that I'm seeking is an order that the  27 documents, including witness interviews, Plaintiffs'  28 interviews, that the -- the experts are relying on --  2 9 THE COURT:  Yes.  30 MR. MACAULAY:  — ought to first be provided as step one.  And  31 then step two would be the delivery of a full report.  32 I'm certain that no admissions will be made in the  33 absence of full reports, and if we -- in the cases  34 where we have only summaries.  Those are my  35 submissions.  36 MR. GOLDIE:  Could I add something to that?  37 THE COURT:  Yes.  38 MR. GOLDIE:  My lord, we had brought on a Notice of Motion,  39 which was filed on June the 11th and which was to be  40 argued on Monday and was deferred until tomorrow  41 because of this, and that was based on the assumption  42 that the summaries, which we have received, had served  43 their purpose, and what we were asking for was an  44 enlargement of the time required that an expert's  45 report is to be filed before he appears on the stand  46 from 30 days to 60 days.  Now, we calculated, and the  47 supporting material will support this, will back me up 1802  Submissions by Counsel  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30 THE  31  32 MR.  33 THE  34 MR.  35  36  37  38  39  4 0 THE  41  42  43  4 4 MR.  45  46  47  COURT  GRANT  COURT  GRANT  COURT  GRANT  on this, we calculated that that was the minimum time  that would be required in order to deal with complete  and full reports.  I have to say this, that if there  are Notices to Admit with respect to anything in the  summaries, I have to -- I support what Mr. Macaulay  says, we can't admit something which is in a summary  and which is unsupported by, so far, the delivery of  all of the appendices and -- and bibliographies and  documents.  But we can only do that in respect of a  complete report.  In one sense what we are applying for is an  alternative to the proposition of -- of — that the  Plaintiffs make of a Notice to Admit.  If the reports  are filed in a form which satisfies Section 10 of the  Evidence Act, then, of course, if the opposite party  calls for the expert to appear in the stand, and the  expert doesn't add anything to what he says in his  report, then the costs are going to be levied against  the -- against the party calling for them, and the 60  days would have given us ample -- not ample, it would  have given us time to decide whether we wanted the  expert to appear.  If we didn't, then my friend  automatically has not only a Notice to Admit facts, he  has the -- he has the admission that it is unnecessary  for the expert to appear.  But if -- if we're going to  move from that into the idea that at some future point  a Notice to Admit is going to be served with respect  to expert reports, then I have to support Mr.  Macaulay.  Thank you.  Mr. Grant, let me ask you whether you  have in mind a number of representative Plaintiffs?  Representative territories.  Territories?  Yes, because as I -- I think it's important for you  to appreciate how -- the perspective that we have of  the case is that the evidence that you have heard now,  albeit including territorial evidence, has been  evidence that -- that deals with the fundamental  structure of the two societies.  Well, I did appreciate that, Mr. Grant, and that's  the only reason why I've allowed this to go on as long  as it has because I was getting that kind of  assistance.  What we are proposing is to deal -- to focus more  specifically on the territories, and our proposal is a  way to handle the territorial evidence and the  surrounding body that -- that we see is necessary with 1803  Submissions by Counsel  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR.  THE  MR.  GRANT  COURT  GRANT  THE COURT  MR. GRANT  respect to any one of those territories.  We do not  see, and I -- I -- this -- and I think it's a  misstatement to say we are proposing a test case.  That's not what we are proposing.  We -- we are  proposing a case on the whole case, but it's a method  for you to take -- get a handle on how the -- what the  territory is by looking at certain specific ones.  Now, my friends have -- we've been grappling with  this question should we look at two, four or six, and  I think that there -- there is no dilemma that Mr.  Macaulay says that anything less than six is  insufficient.  We -- we could handle that within that  context, particularly since, of course, this  evidence -- we're not suggesting taking a whole new  track.  We're suggesting tying this to what has  already gone on, and the -- the important point  that -- and I think you referred to it as an  extrajudicial resolution -- may be useful here is that  this proposal, as we've proposed it to our friends, is  that Mr. Sterritt would be able to give evidence, and  our friends have and will have all of the background  material that he's relying on on any of the  territories, so it's not like we're saying he will  talk about these five.  Any of the territories they  pick they will be able to select and cross-examine him  on them.  But, Mr. Grant, even if your friends accept your  proposal, I couldn't allow you to lead hearsay  evidence as proof of the truth of the facts stated.  It's my responsibility to stop the admission of  hearsay evidence, whether it's objected to or not, and  I can't waive that rule.  I wish I could.  Well, of course.  I know of no --  Mr. Sterritt's evidence is in the form, my lord, of  an expert report, and his evidence will be given -- he  will be giving opinion evidence on those boundaries  and locations.  Yes.  But his opinion has to be based upon facts  which he has obtained from others, which would have to  be proven.  Well, my submission on the point is that that is  what we're trying to grapple with in different -- this  is not a one-step process but a multi-stage process  which we're in the process of dealing with, and as I  have indicated -- well, I indicated to my friend in my  correspondence to him why we have not delivered the 1804  Submissions by Counsel  1 photographs earlier, and I won't speak to that report.  2 But -- but it -- it's our proposal that this is a way  3 for the court to get a handle on and to be able to  4 determine what is meant when the Plaintiffs -- when a  5 Gitksan chief talks about ownership and jurisdiction  6 over his specific territory or a Wet'suwet'en chief,  7 and at the end of this evidence you would be able to  8 then say -- then deal with the claims of the  9 Plaintiffs based on your determination of whether  10 there has been the establishment of -- of what we  11 propose and will propose in argument has been  12 established.  13 Now, with respect to the -- I agree with what my  14 friends says with respect to the Notice to Admit as  15 far as the 28 days is concerned.  There is no problem  16 with that.  And I just -- I looked back, and I'll  17 confirm with my friends, but Mr. Macaulay raised a  18 concern about these photographs, and what is referred  19 to in the Notice to Admit, but may have by  20 inadvertence not been included with the letter, is a  21 map similar to Exhibit 5 or a map of the entire  22 territory, which has dates and numbers coinciding with  23 those photographs so that it facilitates their --  24 their ability to determine where those are, and we'll  25 provide those at the end of court today.  But -- but  26 the point of that is -- and with respect to the 28  27 days, that's -- we have no objection to that, to  28 extending the time to deal with that.  With respect to  29 the matter of the expert reports, of course --  30 THE COURT:  Well, let me just say, in case it's overlooked  31 later, I'll extend the time for responding to the  32 notices for 28 days without prejudicing the right of  33 anyone to apply in that regard further if more time is  34 required.  35 MR. MACAULAY:  My comments were made in the light of the fact  36 that we had no maps; all we had were exceedingly  37 enigmatic photographs.  3 8 THE COURT  3 9 MR. GRANT  4 0 THE COURT  Yes.  No, the maps -- the maps should be included.  I hope there is a Mona Lisa amongst them.  41 MR. GOLDIE:  They would baffle the intelligence of NATO.  42 THE COURT:  All right.  Well, the time will be 2 8 days and  43 liberty to apply.  I'll make an Irish order, 28 days  44 without prejudice to apply further.  45 MR. GRANT:  My lord, the — and that's with respect to this  46 Notice to Admit.  The other, with respect to the  47 expert reports, that Notice to Admit will be dealing 1805  Submissions by Counsel  1 with what I -- what I'm looking at firstly is the  2 expert reports which my friends have had -- have in  3 total now and will have -- and have had for some  4 period of time.  We're not looking at something where  5 we're going to deliver them an expert report in the  6 first place and then suggest they deal with it in 14  7 days.  These are the reports they have in their  8 totality right now.  9 THE COURT:  Well, is there any problem with Mr. Goldie's  10 application that the time for delivering full reports  11 be 60 days before the witness is called?  12 MR. GRANT:  Well, I'd like my associate, Mr. Rush — he's  13 anticipated that motion, and I was dealing with your  14 proposal, so Mr. Rush can speak to that matter, if you  15 wish.  16 THE COURT:  We can do that later.  Thank you.  17 MR. GRANT:  With respect to the documents question, that -- and  18 the Notice to Admit that my friends proposed, our  19 response to that was that we wanted to try to grapple  20 with an agreement with respect to admissibility of  21 documents and that their Notice to Admit was  22 premature.  Of course, once the agreement with respect  23 to the documents is sorted out, and we have  24 corresponded and are waiting for a response from our  25 friends on that, once that agreement is sorted out,  26 then we have no difficulty with -- we'll look at the  27 Notice to Admit in that light.  That's the only reason  28 for the delay on that Notice to Admit.  2 9 THE COURT:  Madam Reporter, do you want to switch with your  30 colleague now?  31 THE REPORTER:  Yes, my lord.  32 THE COURT:  We'll adjourn just for a minute.  33 THE REGISTRAR:  Order in court.  34  35 I hereby certify the foregoing to be  36 a true and accurate transcript of the  37 proceedings herein to the best of my  38 skill and ability.  39  40  41  42 Leanna Lynn  43 Official Reporter  44 United Reporting Service Ltd.  45  4 6 (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT)  47 1806  1  THE  COURT  2  3  MR.  GRANT  4  5  6  7  8  THE  COURT  9  MR.  GRANT  10  11  THE  COURT  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  MR.  GRANT  28  THE  COURT  29  30  MR.  GRANT  31  THE  COURT  32  33  34  35  36  37  38  MR.  GRANT  39  40  41  42  43  44  THE  COURT  45  46  MR.  GRANT  47  Submissions by Counsel  :  All right.  Were you in mid-flight, Mr. Grant, or  are you finished?  :  Probably depends as much as where you want me to be.  My lord, I just -- I was just recalling the Milliprum  case, but it's my understanding that the expert, the  Milliprum case establishes the principle that what an  expert can rely on opinion evidence --  :  Oh, an expert can.  :  -- on hearsay evidence.  It is only a question of  weight.  :  An expert can.  Appraisers do it all the time.  They  go to the land registry office and they look at a  whole bunch of documents and they express an opinion  on comparable sales and things like that.  But that  isn't usually -- well, that's -- you can't establish  things like boundaries by experts.  At least I have  never heard of it being done.  And you can't establish  underlying facts by opinion.  You have got to have  underlying facts by which opinions are based.  If you  have solid underlying facts like the number of  completed transactions where you are looking at the  price, then you have got a solid foundation fact upon  which you can express an opinion, but you can't go  along and talk to a bunch of people on a bunch of  hearsay evidence or hearsay subjective evidence and  found an admissible opinion.  :  Well, it's our submission that --  :  Let's say that ten people said in my opinion this is  the boundary that I have always relied upon.  :  Uh-huh.  :  The most -- the most an expert can say was that ten  people say that that's a boundary.  Well, that's  usurping the function of the court.  That's my  responsibility to decide whether that amounts to a  reputation or not.  I just don't think that the -- the  scenario you are suggesting meets the requirements of  the law.  :  Well, our proposal, of course, is to deal, as I  said, with specific territories and those -- with  respect to those specific territories Mr. Sterritt  would be giving evidence.  The court will have heard  the evidence of the other -- of the other -- of the  persons upon whom he relies.  :  Then there is no point in hearing Mr. Sterritt, is  there?  :  Well, what Mr. Sterritt will do is he will show  the -- what he will do is he will tie in those 1807  Submissions by Counsel  1 together.  And it may be that -- it may be that we  2 have to review the situation at that time.  But what  3 we are trying to do is resolve a method by which we  4 can deal with the concerns of the court and deal with  5 the territories that we are dealing with.  The  6 alternative, of course, is that we would call these --  7 each and every one of these persons and that's what we  8 are -- that's what we are prepared to do.  But that's  9 what we suggest this is an alternative.  10 THE COURT:  Yes, yes.  Well, I think that there is a very, very  11 difficult question here that has to be faced directly.  12 And I'm -- I want to give your proposal at least  13 overnight consideration, Mr. Grant.  I am going say a  14 few things now.  But I don't want to do it if there is  15 anything else that you have to offer that might be of  16 assistance.  17 MR. GRANT:  Well, I think I have set out the outline of our  18 proposal and I -- of course I didn't as Mr. Goldie --  19 from what I took from what both of my friends say  20 cannot really respond to it at this point.  21 THE COURT:  All right.  There is one thing that I can ask you,  22 Mr. Grant, and maybe you can answer this.  I wouldn't  23 be surprised if you couldn't, but do you see -- do you  24 see the plaintiffs succeeding in part, that is do you  25 think that -- can you construct a logical and rational  26 scenario where half a dozen plaintiffs could succeed  27 or fail and the rest having a different result, or  28 some of the rest having a different result?  29 MR. GRANT:  With respect to the claim for declaration of  30 ownership and jurisdiction, I will speak quickly and  31 maybe think on it later.  32 THE COURT:  I am not going to hold you to this.  33 MR. GRANT:  Yes.  But with respect to the declaration of  34 ownership --  35 THE COURT:  Is it all or nothing at all for everybody?  Are the  36 plaintiffs all in the same boat?  37 MR. GRANT:  Well, under our proposal, the thesis of our  38 proposal --  3 9 THE COURT:  No, no.  40 MR. GRANT:  -- under the declaration of ownership and  41 jurisdiction, it would be all or nothing.  42 THE COURT:  Yes.  43 MR. GRANT:  With respect to the declaration of entitlement to  44 damages, which is another matter that we are  45 considering and grovelling with, it may — what you  46 have said is some may be found to be entitled to and  47 others may not be found to be entitled to.  That may 1808  Submissions by Counsel  THE COURT  MR. GRANT  9  10  11  12  13  14 THE  15 MR.  16 THE  17 MR.  18  19  2 0 THE  21  22  23  24  25  26  2 7 MR.  28  29  30  31  32  33  34  35  36  37  38  3 9 MR.  4 0 THE  41 MR.  42  43  44  COURT  RUSH:  COURT  RUSH:  COURT:  THE  4 5 MR.  46  47  turn out to be the case.  But do you think on the issues that I am trying now,  damages having been set aside, that all the plaintiffs  are in the same boat?  On the issues of the declaration of ownership and  jurisdiction.  The quantum of damages has been set  aside.  The issue of entitlement to damages, as Mr.  Goldie expressly set out, is an issue that he can  challenge at this stage of the trial under the terms  of the agreement.  So it may well be that he -- that  certain of the plaintiffs are not -- you make a  finding that certain of the plaintiffs are not  entitled to damages and others are.  That's only if -- if the plaintiffs succeed?  Yes.  That's, I think, if you state through --  On the case.  On that aspect.  But I was trying to -- with respect  to the declaration of ownership and jurisdiction, it's  on that thesis that we are setting out this.  But you think that in that issue, on those issues,  that is success or failure on the underlying issue of  jurisdiction and/or aboriginal title, if I can call it  that by a generic term, you think that on that issue  all the plaintiffs are in the same boat; they all win  or they all lose, or do you?  I am going to ask your  friends the same question.  It's -- I just -- I wanted to pause for a moment,  but regarding that, I reiterate my view that on the  issue that I -- and I am thinking in my mind of the  first declaration, I think, of ownership and  jurisdiction, that on that issue your finding will be  for -- will affect all of the plaintiffs, it will be  one way or the other.  I don't see how, how the case  is framed up, you would be able to pick them off  because they are the Gitksan nation of chiefs and the  Wet'suwet'en nation of chiefs.  All right.  Mr. Goldie, are you able to assist me in  that question?  GOLDIE:  Perhaps.  COURT:  Yes.  GOLDIE:  My lord, the first point I'd like to make is that  the declaration sought of ownership and jurisdiction  are not the equivalent of aboriginal rights.  COURT:  No.  But I am treating for the moment generically.  GOLDIE:  I appreciate that.  But it is -- and I say this  with respect, it is somewhat deceptive if we make that  equation:  Ownership and jurisdiction, we have treated  GRANT:  THE COURT 1809  Submissions by Counsel  1 as going far beyond aboriginal rights.  2 THE COURT:  Yes.  3 MR. GOLDIE:  Ever since the application that I earlier referred  4 to before Mr. Justice Taylor which was designed to  5 determine whether the then 48 plaintiffs were simply  6 48 representing 7,000 and could as well be represented  7 by one, ever since that time when it was made crystal  8 clear that each House had a discreet claim, we have  9 treated it on that basis.  On that basis some  10 plaintiffs could conceivably establish ownership and  11 jurisdiction; other plaintiffs could fail, simply  12 because of the scope of the declaration sought.  13 THE COURT:  But might succeed, I suppose, if they failed on  14 ownership and declaration on some other lesser  15 aboriginal right?  16 MR. GOLDIE:  If there position was, if we don't succeed on  17 ownership and jurisdiction, if this was their  18 position, then we want the same relief that we -- that  19 was sought in Calder, namely a declaration of  20 aboriginal title or rights which is use and occupation  21 of un -- and this is an important point, my lord.  Use  22 and occupation of unoccupied Crown land.  2 3 THE COURT:  Yes.  24 MR. GOLDIE:  It is conceivable that the evidence might get them  25 that far.  2 6 THE COURT:  As in Baker Lake.  27 MR. GOLDIE:  As in Baker Lake.  But this isn't the case that is  28 presented on the pleadings today.  And I should say  29 that this business of use and occupation -- of  30 ownership and jurisdiction, present ownership and  31 jurisdiction, is the cause of the length of this  32 trial.  The admissions with respect to use and  33 occupation in the traditional sense as was tried in  34 Calder would be far easier to arrive at.  Now, I don't  35 want to develop that any further.  Your lordship asked  36 me a question and if I go any further I'll be talking  37 to things you haven't asked me about.  38 THE COURT:  All right.  Mr. Macaulay.  39 MR. MACAULAY:  My lord, as we understood my learned friend's  40 opening and also the evidence of the first three  41 witnesses, particularly, the head chief of each House  42 along with that head chief's wings or sub-chiefs  43 constitute the total and final authority within that  44 House regarding that House's territory.  It seems to  45 me that that is entirely inconsistent with the  46 proposition that if one chief succeeds the others will  47 all succeed, or the converse; if one chief loses 1810  Submissions by Counsel  1 because he hasn't adduced sufficient evidence or is  2 not in a position to adduce sufficient evidence, then  3 all his fellow plaintiffs must go down with him.  4 There is no -- there has been no evidence that -- I  5 don't expect to hear any evidence that there is some  6 larger greater authority than the authority of a chief  7 with his wings, her wings in regard to a House.  And I  8 can't understand how my friend could take that  9 position.  If that were the case, I don't see how we  10 can -- we can go much farther with the proposal that I  11 thought showed a lot of promise.  That is the proposal  12 that some be selected -- all the witnesses who can  13 give any relevant evidence concerning those  14 comparative be examined and arguments be presented to  15 your lordship concerning those to provide the basis of  16 jurisprudence on which other chiefs whose claims  17 aren't dealt with right away.  And other Houses and  18 indeed other nations and tribes can confidently govern  19 the claims that they make and the positions that they  2 0 have.  21 THE COURT:  All right.  Thank you.  Well, I want to give this  22 some reflection and I am sure counsel will want to.  I  23 embarked upon this investigation this afternoon with  24 two main possibilities in mind.  One was simply to  25 sever some of the plaintiffs' claims out and try the  26 balance in the hope and expectation that the tail  27 would go with the hide or the other way around, I am  28 not sure which.  And as a defensive reaction to the  29 last six weeks, it may be that that's what still would  30 have to be done.  31 I think that I can say without any pejorative  32 colouration that it's intolerable that any case would  33 go on as long as this one could if something fairly  34 draconic is not done.  And I want to avoid that if I  35 possibly can.  In a lifetime at the bar this sort of  36 thing has been done before.  I remember a case where  37 there were 30 counts of commercial crime and after a  38 six months' trial and after six days of the judge's  39 charge, he simply announced in addition he couldn't  40 possibly charge the jury and told the Crown to stay  41 half the counts or he would sever them.  The Crown  42 stayed 15 counts and the trial then went ahead.  And I  43 don't exclude that as an alternative here.  That is  44 being done in many, many cases today, particularly  45 where a large group of investors get persuaded to  46 invest variable amounts of money in building and  47 construction schemes that go sour and each plaintiff 1811  Submissions by Counsel  1 may have a different case, because he or she may have  2 received different representations inducing her or him  3 to invest, and in those cases judges are regularly  4 severing two or three or four out for trial and the  5 others stand by waiting to see the result in the hope  6 and expectation that the matter will be resolved.  7 When I've had to make those kind of orders I've had  8 left it to the parties to each pick half of the  9 representative cases they want to try in the hope that  10 the spectrum of different possibilities would be  11 covered.  12 It seems to me that if the plaintiff was to choose  13 the three Houses represented by the first three  14 witnesses, and possibly the House of the present  15 witness and a couple more of the Wet'suwet'ens, if  16 they were so minded, although that would be their  17 choice, and the defendants were able to agree on a  18 representative, but similarly sized group, that we  19 might have a manageable trial and the result might or  20 might not resolve the whole case.  But at best -- or,  21 I am sorry, no, at worse the remaining plaintiffs  22 would still have their right to go to trial at some  23 time if such was their wish or the defendants would  24 be -- would have the right to require them to go to  25 trial if such was their wish.  26 The exchange I just had with counsel about all the  27 plaintiffs being in or out of the same boat leads me  28 to be cautious about that course, although, as I say,  29 as a defensive reaction it may be necessary.  I do not  30 think that this case should be tried in its entirety  31 in the matter in which we have been trying it for the  32 past six weeks.  Again, I intend no criticism of  33 anyone in that regard.  It's a difficult case and  34 that's the kind of creature that we're dealing with.  35 And I merely wish to alert counsel to the view I have  36 that severance is a possibility.  37 The proposal made by Mr. Grant in my view has some  38 useful parts to it, but it hits bottom when it gets to  39 Mr. Sterritt's evidence, because I frankly see no  40 answer to the hearsay difficulties that it meets.  41 Perhaps some further thought can be given to that  42 proposal and perhaps it can be reconsidered and  43 repolished in some way.  I'll leave that to counsel.  44 The other possibility that I had in mind when we  45 started this dialogue was one that we touched on  46 yesterday in which has been mentioned during pre-trial  47 conferences and which seems to me to be a viable, 1812  Submissions by Counsel  1 although still difficult alternative, is the -- is  2 the -- is a scenario whereby the plaintiffs would  3 select a number of further witnesses to round out  4 their case as it were and then put the balance of  5 their lay evidence in chief by affidavit subject to  6 cross-examination.  I recognize the objection taken by  7 Mr. Grant that these people do not have a written  8 culture and that their first exposure if it was to go  9 to cross-examination might be a traumatic one, but I'm  10 not convinced that's so.  These are witnesses that in  11 my view are going to respond carefully and  12 thoughtfully to whatever they are asked and regardless  13 of who asks them.  They will have been thoroughly  14 conditioned to some process by the preparation of  15 their affidavits, and it seems to me that it is  16 tenable for this case to be dealt with in its entirety  17 in that way which I would think substantially shorten  18 the actual time in trial.  It may add to the burden of  19 counsel, but it may be that they wouldn't be prepared  20 to proceed or ready to proceed in September.  But  21 that's not the worst thing that could happen to this  22 case.  I think we run the risk here of having a trial  23 that would not do justice to the process if it's  24 allowed to go on to its destiny in accordance with the  25 experience we've had in the last -- in the first six  26 weeks of the trial.  And I haven't made a calculation,  27 but I should think that we've had about four days of  28 evidence in chief to every day of cross-examination or  2 9 more.  And the procedure I'm contemplating now is one  30 that would save about 75 per cent of the time required  31 for the balance of the evidence.  And it may be, as I  32 expect will be the case, that it may save even more  33 than that, because when the affidavits are prepared  34 and when the case gets on a little further it may be  35 that there will be no cross-examination.  That, of  36 course, is not a matter by which I can speak with any  37 certainty.  But I think that I have to leave that to  38 counsel now to consider and I think we should have  39 further discussion about the matter either tomorrow  40 afternoon or Friday afternoon as counsel may prefer.  41 And it may be that it should be adjourned even further  42 beyond that into some time in early July when I will  43 be glad to make myself available.  But I say to  44 counsel now that I feel obliged to take some steps to  45 bring the length of this trial under control.  I do  46 not think that I will be acting responsibly if I  47 allowed it to continue as it has.  Is there anything 1813  Submissions by Counsel  1  2  3  4  5  6 MR.  7 THE  8 MR.  9  10 THE  11  12 MR.  13  14 THE  15  16 MR.  17 THE  18 MR.  19  20  21  22 THE  23  24  2 5 MR.  26  27 THE  2 8 MR.  29  30  31  32  33 THE  34  35  3 6 MR.  37  38  39  40  41  42  43  44  45  46  47  GRANT  COURT  GRANT  COURT:  GRANT:  COURT:  else that counsel want to talk about this afternoon?  Well, I think we should talk about the question of  where the trial is continued in September if it  continues.  Do counsel have views on that?  Do you  want to talk about it now or some other time?  We have views on it, I can say that much.  Yes.  I am in the court's hands as to that matter.  I am  prepared to speak to it now or to speak —  Well, I am available, but I don't want to press  counsel if they would rather do it some other time.  Well, I am prepared to deal with it right now, my  lord.  Well, I should ask Mr. Goldie and Mr. Macaulay if  they are.  MACAULAY:  I am.  COURT:  Mr. Goldie?  GOLDIE:  Well, I am prepared, my lord, but I wonder if  it's -- if there is a slight element of the cart  before the horse.  If your lordship is considering and  counsel are considering --  COURT:  I only smile, because recently Mr. Peter Butler  announced that his friend's argument was putting the  horse before the cart.  At least you got that right.  GOLDIE:  When I say a slight element, I guess that's even  worse.  COURT:  Yes.  GOLDIE:  But if there is to be some major reorganization of  the trial process, I wonder if that isn't going to  have a consequential effect on the place of trial.  It -- I think it would.  But I'm prepared to deal with  it now.  All right.  Well, then, if you wish, Mr. Grant, I  would be glad to hear what you want to submit on that  regard.  Well, my lord, with respect to whatever is dealt  with with respect to the reorganization of evidence, I  think that even on the position of the plaintiffs, it  seems to me there are a number of things.  One is that  we will still be in the plaintiffs' case in September,  and secondly, we will still be dealing with evidence  of Gitksan and Wet'suwet'en people in September.  And  with respect to the factors that I would like the  court to take into account, the record has been kept  of the number of people who -- Gitksan and  Wet'suwet'en people primarily who have been present in  court throughout this trial and it's averaged 40  COURT:  GRANT: 1814  Submissions by Counsel  1 persons a day have been present here in the courtroom.  2 That's been the average.  Of course there is days  3 where it's higher, but there is not days where it's  4 been under 20 people.  Now, it's our submission, and  5 it's a very, very serious concern of our clients that  6 they be able to attend or representive members of them  7 of the Houses or be able to attend at the trial and  8 hear the evidence as it is presented.  It's an  9 economic factor.  It's a very serious concern for our  10 clients in that regard.  And it's our submission that  11 the trial in the month of September should resume  12 here.  I noted from your scheduling, of course, that  13 you had not put any place as to where it was when you  14 set the fall scheduling.  And maybe what I am saying  15 is given, I think, the factors that I have raised are  16 ones that the court may or may not have been aware of,  17 but I think it's important to take that into account  18 and I think it's, as the court has said, of course, a  19 trial even this long is unusual.  A trial with so few  20 witnesses over this period of time is highly unusual.  21 And I think it's also very unusual, but demonstrates  22 the very, very serious concern these people have, that  23 the attendance of this court right up to today there  24 were 60 people.  According to the counts the  25 attendance of this court six weeks into the trial  26 maintains that high level.  And I think that people  27 are very, very concerned about hearing the evidence  28 and hearing the arguments that are being made in the  29 court and understanding what is happening in the  30 courtroom with respect to this very, very important  31 litigation which was going to have a dramatic effect  32 on these people for decades to come.  33 THE COURT:  Thank you.  Mr. Goldie?  34 MR. GOLDIE:  Well, my lord, I said a few minutes ago that I was  35 prepared to deal with it.  I think I would wish to  36 defer any submissions I make until I know what this --  37 what is going to happen to this trial.  I understand  38 what Mr. Grant is saying.  On the other hand if the  39 case went on in the way that he contemplates, it would  40 not only be inconvenient to have it here, and I don't  41 use that word in terms of personal inconvenience, I am  42 talking about the possibility of the disruption of the  43 trial through winter weather; planes failing to get  44 in, I can say that my colleagues --  4 5 THE COURT:  Or out.  46 MR. GRANT:  Not in September.  47 MR. GOLDIE:  -- have seen that.  At certain times the charm of 1815  Submissions by Counsel  1 this beautiful part of the world, etc., wears a little  2 thin or is found to be a little hard to perceive  3 through the snowflakes.  So I think I cannot be of any  4 assistance to your lordship on this until I have a  5 better sense of where the trial is going.  6 THE COURT:  Mr. Macaulay?  7 MR. MACAULAY:  I have instructions, my lord, to advise you that  8 the Attorney General's counsel will be either here or  9 in Vancouver as your lordship directs.  And in  10 whatever weather.  11 THE COURT:  Yes.  12 MR. GOLDIE:  And you walk on water.  13 MS. KOENIGSBERG:   Of course.  14 MR. MACAULAY:  Snow shoes.  15 THE COURT:  Well, I was told when I was appointed to this office  16 by one of its former occupants that the most difficult  17 thing a judge has to do is to say no to the  18 submissions of one or more counsel in every case.  And  19 that is true.  I can't help but be aware of the fact  20 that the plaintiffs have, and their families and  21 friends and supporters and other citizens of this  22 community have, taken a great interest in this case.  23 And I think that's highly commendable and I'm glad  24 that we came here.  I'm glad that we have exposed the  25 court's process for a period of six weeks to the  26 parties in their -- in the location where they live.  27 But I have to be aware of the fact that one of the --  28 one judge, eleven out of 12 counsel and two out of two  29 court reporters at this trial are all located in  30 Greater Vancouver.  I have to be aware of the fact  31 also that there are other serious inconveniences to  32 the court in my being here, although I put that at a  33 low level of importance because telephone service is  34 very good.  But I can tell you frankly that I find it  35 to be a wearing experience.  It is one that affects  36 concentration.  And I find that I'm not confident that  37 it is productive to sit continuously in locations such  38 as we are in now.  I would not preclude the  39 possibility of coming back.  It may be that  40 plaintiffs' argument should be here.  I wouldn't  41 exclude that possibility at all.  But I think that if  42 counsel need to know, my present ruling is that we  43 will reconvene in September in Vancouver.  And I will  44 be glad to hear counsel at any time as to any special  45 circumstances that should lead me to change that  46 decision.  All right.  Thank you.  We'll adjourn then  47 until 10 o'clock tomorrow morning.  Oh, may I ask, is 1816  9  THE  COURT:  10  MR.  RUSH:  11  12  13  14  15  16  17  THE  COURT:  18  MR.  GOLDIE  19  20  21  22  THE  COURT:  Submissions by Counsel  1 it likely that we can finish this witness in two more  2 days?  When I say finish I mean in chief and in  3 cross-examination.  4 MR. RUSH:  I don't know what the cross-examination will be, but  5 there will be some more direct evidence tomorrow.  6 THE COURT:  For much of tomorrow?  7 MR. RUSH:  It's hard to estimate.  But certainly the morning and  8 possibility the balance of the day.  Yes.  I would be asking your lordship, given the length of  the cross-examination which I've noted to exceed a day  or a day and a half, I would be asking you not to  commence the cross-examination of Mr. Joseph.  I  suspect even after I complete the direct tomorrow,  because I would not want Mr. Joseph to be in  cross-examination for the summer break.  Yes.  Well, I certainly wouldn't require him to be  incommunicado, if we did get started on the  cross-examination.  But I -- we just have to see how  we get along.  Yes.  All right.  Well, in that -- in view of that,  23 however, perhaps we should -- well, I'll put it -- ask  24 counsel, in view of that should we plan to resume this  25 dialogue tomorrow afternoon?  26 MR. GOLDIE:  I think —  27 THE COURT:  Rather than Friday?  28 MR. GOLDIE:  I think it would be helpful if we pursued the  29 question of the trial organization.  30 THE COURT:  Yes.  Well, we'll see how we — whether counsel are  31 able to do that tomorrow morning then.  All right.  32 Thank you?  33  34 (PROCEEDINGS ADJOURNED UNTIL JUNE 25, 1987 AT 10:00  35 A.M.)  36  37  38 I hereby certify the foregoing to be  39 a true and accurate transcript of the  40 proceedings herein to the best of my  41 skill and ability.  42  43 Laara Yardley,  44 Official Reporter,  45 United Reporting Service Ltd.  46  47


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