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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1988-02-15] British Columbia. Supreme Court Feb 15, 1988

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 3507  1  2 Vancouver, B.C.  3 February 15, 1988  4  5 (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT)  6  7 THE REGISTRAR:  Calling Delgamuukw versus Her Majesty the Queen  8 to the bar, please.  9 THE COURT:  All right.  Thank you.  10 MR. PLANT:  My lord, I'm rising because on Friday the matter of  11 the Bazil Michell affidavit —  12 THE COURT:  Oh, yes.  13 MR. PLANT:  -- Came up, and there was a suggestion made by my  14 friend Mr. Rush that it be deferred until this  15 morning.  I'm happy to proceed with some intent of  16 resolving that now, subject to your lordship's  17 convenience, and my friends' wishes.  18 THE COURT:  Mr. Rush, is it convenient to deal with it now?  19 MR. RUSH:  Well, our position hasn't really changed in terms of  20 what we are required to do, but neither do we want a  21 90 year old man subject to further cross-examination,  22 so our -- we take no position on the application.  23 THE COURT:  You'll have to refresh me, Mr. Plant, as to what is  24 the problem again.  25 MR. PLANT:  Well, the goal — my goal, if I might put it that  26 way, was to have the affidavit of Bazil Michell, which  27 has up until now been marked as Exhibit 178 for  28 identification --  2 9 THE COURT  3 0 MR. PLANT  31 THE COURT  32 MR. PLANT  178?  178.  Yes.  Marked as an exhibit in the trial.  The affidavit  33 was sworn by Mr. Michell, as we understood it,  34 pursuant to the order which your lordship made during  35 the course of Alfred Joseph's testimony when my friend  36 sought to adduce from Mr. Joseph evidence as to what  37 living persons had told him.  Your lordship made an  38 order.  It's at page 1675 of the transcript from June  39 23rd at line 32.  40  41 "...I think I have to say to Mr. Rush that I  42 would allow Mr. Joseph to say what other  43 persons, what other living persons have told  44 him only if he undertakes to either call the  45 witnesses or furnish affidavits from them  46 and, if requested, produce those witnesses  47 for cross-examination." 1  2  3  4  5  6  7  THE  COURT  8  MR.  PLANT  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  THE  COURT  25  MR.  PLANT  26  MR.  RUSH:  27  MR.  PLANT  28  29  30  31  32  33  34  35  THE  COURT  36  37  MR.  PLANT  38  THE  COURT  39  40  41  42  MR.  PLANT  43  44  45  THE  COURT  46  MR.  PLANT  47  MR.  RUSH:  3508  Subsequent to that order Mr. Joseph was  asked questions about things that Bazil Michell had  told him.  In fact, that took place on the day that  your lordship gave that direction.  Some months later  after the trial had recommenced my friends delivered  an affidavit of Bazil Michell.  :  Right.  :  And I had occasion to make reference to it during  the course of Mr. Alfred's cross-examination and at  that time I sought to have the affidavit marked.  There was an objection taken at that point, and the  matter has sort of limped along up until now.  And  what I was hoping to accomplish this morning was to  obtain a ruling from your lordship as to whether the  affidavit could be marked as an exhibit, because  failing that I was going to be put in a position of  applying to reopen cross-examination of Bazil Michell.  As it happens Bazil Michell, the proponent of this  affidavit, has testified on commission in this trial,  and his testimony in that regard has been tendered as  an exhibit, and this is a subsequent sworn statement  of that witness which I say for reasons I would be  happy to --  :  Bazil Michell is a plaintiff?  :  He is --  No.  :  He is the chief who holds the name Hadah K'umah,  which -- who has territory on the west side of the  Bulkley in the area of Moricetown.  He, as I recall  the evidence, Hadah K'umah is a chief's name in the  house of Wah tah k'eght.  And both Madeline Alfred and  Henry Alfred made reference to Bazil Michell during  the course of their evidence.  He is in my submission  a plaintiff although not named.  :  He is a person under whose behalf claim is advanced  in this case?  :  Yes.  :  I suppose if the affidavit isn't admitted into  evidence then I would have to disregard what Mr.  Joseph said and disregard the information he received  from Bazil Michell?  :  That's correct.  And if your lordship were to make  that ruling I would then apply to reopen the  cross-examination of Bazil Michell in order --  :  On commission?  :  Yes.  Well, our position was, of course, that we could 3509  1 disregard the evidence of Alfred Joseph, and that  2 would be the position that would be taken by the  3 plaintiffs in respect of the Bazil Michell affidavit.  4 In effect, no affidavit, no evidence of Alfred Joseph.  5 But our position is that my friends are saying that  6 they will proceed with the cross-examination of Bazil  7 Michell, and we're simply not prepared to agree to  8 that.  It's not a tenable position for Mr. Michell at  9 all, so they -- our position is we are not taking any  10 position with regard to this application at this time.  11 THE COURT:  Well, is the evidence admissible as a statement made  12 by a plaintiff or a person on whose behalf the action  13 is brought and admissible on that ground?  14 MR. PLANT:  I say it is, my lord, although I have not found a  15 case dealing with the curious situation of a statement  16 made by a witness after he has testified in trial.  17 But there are -- there is under the general category  18 of the admissions rule authority to the effect that  19 affidavits or documents which a party has expressly  20 caused to be made, or knowingly used as true in a  21 judicial proceeding, and I would say here the  22 affidavit of Bazil Michell was expressly caused to be  23 made in a judicial proceeding.  24 THE COURT:  Well, I'm not going to order that this witness be  25 examined further.  I'm going to avoid having to make  26 that decision.  I'm going to allow that evidence in  27 under my policy of erring in favour of admissibility  28 instead of the other way around, as I've enunciated a  29 number of times, and I'm going to admit it as a  30 statement made by a party on whose behalf the action  31 is brought.  And that, I think, solves two problems.  32 One, it supports the admissibility of the evidence of  33 Mr. Joseph, and it puts the evidence before the court  34 and makes the examination of Mr. Bazil Michell  35 unnecessary.  36 MR. PLANT:  Very, good, my lord.  37 THE COURT:  So Exhibit 178 will now become an exhibit at the  38 trial and not for identification.  All right.  Thank  3 9 you.  40  41 (EXHIBIT 178:  Previously Ex. 178 for Identification)  42  43 MR. PLANT:  May I be excused, my lord?  44 THE COURT:  Yes.  Counsel don't need leave to be excused as far  45 as I know.  46 MR. PLANT:  I'm going to make a lot of noise here.  47 THE COURT:  Yes.  That will not be excused. 3510  1 MR. RUSH:  My lord, I have a matter I'd like to deal with as  2 well just before we get underway with the  3 cross-examination.  It pertains to a letter that I was  4 handed this morning by Mr. Mackenzie.  And the letter  5 reads in part:  6  7 "After the commencement of my  8 cross-examination of Mr. Alfred Mitchell on  9 Wednesday, February 10, 1988, we received a  10 shipment from Smithers containing a large  11 number of documents which our agent  12 discovered on Tuesday, February 9, 1988.  13  14 Our agent had telefaxed to us immediately on  15 Tuesday a Sustenance Permit dated January  16 11, 1983 signed by Alfred Mitchell and his  17 son John Mitchell.  There were one or two  18 other documents telefaxed down at that time  19 also.  I handed copies of those documents to  20 you as soon as I received them on Tuesday  21 afternoon before completion of Alfred  22 Mitchell's Examination in Chief.  23  24 Late last week, we reviewed the large number  25 of additional documents which we received,  26 many of which are Sustenance Permits.  We  27 will list these Permits and make them  28 available for your inspection.  29  30 In the meantime, I am providing to you  31 copies of those documents which may have  32 relevance to the evidence of Alfred Mitchell  33 and Dan Michell."  34  35 And that's all that I received.  Now, this is the  36 second time that I have risen on an occasion in which  37 the suggestion of new documents was to be delivered to  38 the plaintiffs after the cross-examination had  39 commenced.  And I think it is very improper for me to  40 have to deal with documents on cross-examination when  41 the witness has not had an opportunity of reviewing  42 those documents with me.  And it -- again, the  43 previous incident involved documents that were  44 apparently in the possession of the wildlife  45 department in Smithers.  And it sounds like there is  46 an effort to scour the wildlife offices in Smithers.  47 And those documents are now being pulled out and 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  3511  they're being made available to us.  Now, my concern here is I think there are limits  to late disclosure.  I think there is late disclosure  problems on everybody's part, but to talk about  additional documents and bundles of documents just  becoming available to my friends when during, I  believe it was the examination of Henry Alfred, Mr.  Plant presented us with the same problem.  And I'm  making a request at this time, my lord, that if the  plaintiffs are themselves required to deliver  disclosure of their genealogies, their summaries, and  their affidavits 14 days in advance the very least we  can expect of the defendants is for them to deliver  the documents which they may or may not use in the  cross-examination of a witness seven days in advance,  and I ask that you make that ruling so that we can  overcome a problem like this and I don't have to face  this problem every time, or at least on a second time  and possibly future occasions when a witness comes to  give evidence.  THE COURT:  Before you -- before you reply, Mr. Mackenzie, may I  explore with you, Mr. Rush, the situation if instead  of putting the documents to the witness, which in  usual circumstances is a badge of fairness, your  friends are not allowed to put them to the witness but  instead for that reason tender them as part of their  case as business records and put you in a position of  having to decide whether to call your client in order  to explain them.  MR. RUSH:  Well, I think that's the least of the desireable  routes, and I do --  THE COURT:  That's what I'm exploring.  MR. RUSH:  And I do so because firstly, in many cases I couldn't  accept that some of the documents simply because  they're housed in the government file constitute  government records and are kept in the usual and  ordinary course of business, because they aren't.  Secondly, I would certainly want in that circumstance  a responsible officer, as we have yet to see in  respect of certain things that are said to be kept in  the normal and ordinary course of business, come  forward and say that they are.  But that really is  secondary to my concern.  My concern is that the  Provincial Government certainly has the means to make  a reasonable disclosure of documents which they intend  to put to witnesses.  And certainly there's no 3512  1 surprise to anybody that the -- in the mind of the  2 Provincial Government, at least in their defence here,  3 the traplines are registered traplines and what are  4 contained in these files is of importance to the  5 provincial Crown.  I can see no reason why a  6 reasonable inspection of the offices in Smithers  7 couldn't have been made and we couldn't have been  8 apprised of documents that are made there.  I'm  9 concerned about the ongoing fact that we're getting  10 continously new document lists, and that's really, I  11 suppose, again a collateral question of this  12 particular problem, but we're having to deal with new  13 disclosures every week and that means we have to keep  14 apprised of these documents as they come available.  15 But then to have on top of that documents which are  16 called out of a file known to the defendant and to be  17 produced in this situation is not a very desireable  18 circumstance.  And I think a much better way of  19 approaching it would be to ask for some timely  20 disclosure.  And I see no reason why seven days  21 requirement for timely disclosure of those documents  22 couldn't be put into effect.  If this is the last that  23 we have to expect in respect of Mr. Henry Alfred I  24 would at least ask to have the documents and to be  25 able to review them with Mr. Alfred before he is  26 examined on them.  That's this issue.  But in terms of  27 future witnesses I would ask that your lordship now  28 that my friends have a week off, we all have a week  29 off coming up, that they now be asked to produce these  30 documents within a seven day period.  They can now get  31 into a seven day schedule just as we were required to  32 get into a 14 day one.  I think that's more desireable  33 than shifting it all to the back end of the trial when  34 we can face it here and now.  35 THE COURT:  Yes.  All right.  Thank you.  Mr. Mackenzie.  Mr.  36 Plant.  37 MR. MACKENZIE:  Thank you, my lord.  Well, my lord, Mr. Rush is  38 speaking about disclosure problems.  I don't think he  39 denies we're disclosing these things as soon as they  40 come to our attention.  I might say, my lord, they  41 didn't come from the trapline files.  Nothing to do  42 with traplines.  As far as I'm instructed these were  43 late sustenance permits similar to the one we saw  44 earlier last week.  We're continuing to carry on  45 searches.  For the last two years, my lord, we have  46 been carrying on diligent searches in different  47 government offices, and that's continuing.  And in my 3513  1 submission the application that Mr. Rush is making is  2 inappropriate.  To require us to give disclosure seven  3 days before is inappropriate.  I can help Mr. Rush to  4 some extent by saying that I won't put those documents  5 to Mr. Alfred Mitchell.  If Mr. Rush wants to carry on  6 and maintain his objection despite the fact that I  7 gave immediate disclosure then I will not put the  8 document to Alfred Mitchell, but to follow Mr. Rush  9 all the way down the road as far as he is trying to  10 take us, in my submission, it would be inappropriate  11 from cross-examination in view of the continuing  12 diligent searches and disclosure that the Provincial  13 Government is making in this case.  14 THE COURT:  What's wrong with Mr. Rush's suggestion of a seven  15 day disclosure of any document before it's put to a  16 witness in cross-examination?  What's wrong with that?  17 MR. MACKENZIE:  I don't have any objection to that, my lord.  In  18 fact we're doing that.  We make disclosure  19 immediately.  As a normal rule I would agree with  20 that.  We make disclosure as soon we get these  21 documents.  In this case it turned out not only Mr.  22 Alfred Mitchell, but several other documents became  23 available.  It just happened that Alfred Mitchell was  24 included in them.  So if this is an exception I don't  25 see any objection to following the procedure we  26 usually use in disclosing documents to the plaintiffs  27 as soon as we get them.  28 THE COURT:  Your friend says if you get them after you start the  29 cross-examination it deprives him of the chance of, to  30 use the euphemisms enjoyed by lawyers, to take  31 instructions from the witness on the document.  I'm  32 not sure I'm understanding, Mr. Mackenzie.  Are you  33 saying that it is inappropriate to impose a seven day  34 rule?  35 MR. MACKENZIE:  No, my lord.  I think it's inappropriate to  36 require us in exceptional circumstances to have had  37 those documents to the plaintiffs when we didn't know  38 they existed.  But generally speaking we have no  39 objection to disclosing documents.  40 THE COURT:  Well, I understand.  Well, all right.  I think I  41 understand your position.  Ms. Koenigsberg.  42 MS. KOENIGSBERG:  I confess to some confusion as to what's  43 actually being asked for here.  Is it disclosure on  44 the list as in these documents have been disclosed  45 that should take place at seven days before a witness  46 is called, or is it a culling out of those documents  47 which are anticipated may be put to the witness -- 3514  1 THE COURT:  No.  The former.  I understand Mr. Rush is asking  2 for the former.  If I'm wrong --  3 MS. KOENIGSBERG:  I would say I would have thought that seven  4 days was indeed rather short, and that we are, in fact  5 all of us, and I think the plaintiffs certainly no  6 less than the defendants, are coping with a very  7 difficult problem of finding documents that they did  8 not realize existed, or were relevant, and they're  9 having to be put in right before a witness is called.  10 That certainly there's no difficulty with asking for  11 disclosure of any documents.  I simply don't know  12 quite frankly how it's going to assist, because  13 there's no suggestion that diligence is not --  14 THE COURT:  Well, Mr. Rush isn't asking me to impose a rule that  15 says thou shall not put a document to a witness that  16 hasn't been disclosed at least seven days before it's  17 used.  18 MS. KOENIGSBERG:  Well, my lord, I think the difficulty with it  19 is that it means that there are going to be documents  20 which are extremely relevant, and that's going to be  21 true for the plaintiffs as well.  We certainly have  22 had documents put to witnesses in chief that -- that  23 were not disclosed until the day they're being put to  24 the witness.  25 THE COURT:  Well, Mr. Rush — Mr. Rush has to expect that —  26 that any rule I make in this regard will be a  27 universal one that will apply to him as well as to  28 anyone else.  29 MS. KOENIGSBERG:  Given that state of affairs, my lord, I think  30 the difficulty is are we going to go along now and  31 really exclude evidence that may be extremely relevant  32 because it didn't come to light until too late.  If  33 that's the case, and it's a universal rule, we're in  34 your lordship's hands.  I don't think that in the  35 circumstances of this case it is a rule which is of  36 great assistance given that we are all trying to make  37 as prompt disclosure as we can of a tremendously large  38 number of documents, and we have all of us a relevance  39 problem in that it's so broad.  40 THE COURT:  Well, I think the rules are intended to provide for  41 just the situation you mentioned, Ms. Koenigsberg,  42 that documents will be excluded from evidence if  43 they're not the subject of a timely disclosure.  I  44 don't think there's anything startling about that.  45 It's merely a question of whether everyone wants to  46 live with a threshold requirement.  I take it that the  47 Province and Canada don't want such a requirement, and 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  MR.  THE  MR.  RUSH:  COURT  RUSH:  MR.  3515  Mr. Rush seems to say he does.  Do I have your  position correctly, Mr. Rush?  Well, interestingly -- an interesting observation  was --  You've just been handed a sheaf of documents that  you -- that you hadn't expected.  Yes, I -- an interesting distinction has been drawn  by Ms. Koenigsberg.  There are two different aspects  of what I would like to see, but I accept that we've  already lost the first one, and that is we have always  thought that the defendants ought to group their  documents.  We have always thought that the documents  that are going to be put to a witness should be  grouped, because as it is what we do get is a list of  documents, and we continue to get them, and we're  expected to run through all of these documents and  determine which may or may not be relevant to the  witness.  Well, we've accepted that burden and we'll  have to live with it.  But what I'm saying here is  there has to be some kind of threshold obligation on  the part of the defendant to give us some timely  disclosure of documents.  There have been a number of  photographs that have been introduced I think not in a  particularly timely way, but I don't have -- I don't  take too much from that.  I think photographs, we have  all got problems with photographs, and I don't really  feel I'm any way prejudiced by that frankly.  And,  frankly, the way that I got them was in a reasonable  way.  What I'm concerned about only is documents that  are in files of the Provincial or Federal Government  that we have have to timely notice of for the purpose  of taking instructions, and that's my submission.  MACKENZIE:  My lord, I have to raise -- to rise with some  surprise to hear Mr. Rush talking about late  disclosure documents when we received booklets of  photographs as he or his colleagues stand up to  examine the witness.  Well, a photograph is in a different category, as  Mr. Rush says.  It's either what it purports to be or  it isn't.  MACKENZIE:  Yes.  COURT:  And there's nothing that comes from it that you can  really get instructions from a witness on.  A  photograph, that is pretty limited, and the search for  truth isn't compromised or risk of compromise is  minimal in a photograph.  When you're talking about  documents that your client has in his possession and  THE COURT  MR.  THE 3516  1 has had for 25 years and when this lawsuit has been  2 pending for four years and at bar for nearly a year it  3 seems to me that it's not asking too much to poach  4 some requirement as to the timeliness of the  5 disclosure, and on both sides.  6 MR. MACKENZIE:  Yes.  My lord, if your lordship is disposed to  7 make such an order I would submit that the order  8 should be subject to just exceptions otherwise ordered  9 by the court so it does give the parties a chance to  10 bring before your lordship exceptional circumstances  11 and have the matter reviewed as a situation arises, as  12 it has done late last week.  13 THE COURT:  Well, this trial has progressed on a pretty loose  14 and disorderly way from the admissibility perspective,  15 and I haven't been raising objections when counsel  16 don't, but I've heard an enormous amount of completely  17 inadmissible evidence.  And if counsel want me to  18 start applying strict rules then I think that might be  19 a useful thing to do.  Any time there's a ruling on  20 admissibility one side or the other is left with a  21 sense of unfairness, and for that reason I've been  22 relatively passive about admissibility.  But if  23 counsel want me to start imposing rules then they must  24 expect to live by them.  And I would -- in one sense I  25 welcome this discussion.  In another sense I wish we  26 weren't having it.  I think we may be on the near bank  27 of the Rubicon here, and I'm afraid to cross that  28 river.  If counsel want me to, and Mr. Rush is urging  29 me to, it seems to me we ought to get very legalistic  30 or we ought to stay the way we are.  Perhaps counsel  31 want to think about this for a day or so.  We already  32 solved the problem with this witness because Mr.  33 Mackenzie is not going to put the documents to him.  34 Do counsel want me to rule or do they want to think  35 about it?  36 MR. RUSH:  I don't think we have ever been quick to ask you to  37 rule, my lord.  I'm happy -- since I raised the issue  38 I'm happy to let it stir around in my brain for a few  39 days.  40 THE COURT:  All right.  I'll raise the matter again whenever any  41 counsel ask me to.  All right.  42 THE REGISTRAR:  I caution both the witness and interpreter  43 you're still under oath.  4 4 THE COURT:  Yes.  45  4 6 ALFRED MITCHELL, Resumed:  47 3517  1 MR. MACKENZIE:  My lord, again to save time, and for the  2 convenience of the court, I had some other tabs to  3 hand up.  Perhaps I could do that at the break.  Those  4 could be inserted in the counsels' binders.  5  6 CROSS-EXAMINATION BY MR. MACKENZIE CONTINUED:  7 Q   Mr. Mitchell, you recall on Thursday we were reviewing  8 a map produced on Emma Michell's examination?  9 A   Yes.  10 Q   Yes.  And it was different from your map, wasn't it?  11 A   Yes.  Different.  12 Q   And it was different in several respects.  That is,  13 the southern boundary was different, wasn't it?  14 A   Not only that.  You guys put the lakes in the wrong  15 place.  That's the difference.  16 Q   And the boundary at Dungate Creek was different,  17 wasn't it?  18 A   On Emma's map, yes.  19 Q   And the eastern boundary was different, wasn't it,  20 along Foxy Creek?  That was different?  21 A  Along Niss Tsee Diizdlee Kwe it's different.  22 Q   Yes, it was.  I need the spelling for that, please.  23 THE TRANSLATOR:  Number 554.  24 MR. MACKENZIE:  25 Q   That's Allin Creek, isn't it?  26 A   Yes.  27 Q   And now you've had time to think about that map --  28 A   I don't have to think about it.  I know the place.  29 Q   You agree with me now that your map is incorrect?  30 A  My map?  31 Q   Yes.  32 A   Incorrect?  33 Q   Yes.  34 THE COURT:  You're talking —  35 MR. MACKENZIE:  Exhibit 184.  3 6 THE COURT:  Yes.  37 MR. RUSH:  Maybe that should be put in front of him.  38 THE COURT:  What is the map number that was —  39 MR. MACKENZIE:  Exhibit 73G is the Emma Michell map, my lord.  40 THE REGISTRAR:  That's Exhibit 184, one of the sketch maps, my  41 lord.  42 THE COURT:  Yes.  43 MR. MACKENZIE:  44 Q   You have your map, Exhibit 184.  Can you agree with me  45 now that your map is incorrect?  46 A   This is correct map.  At first it wasn't correct and I  47 corrected it.  The other end, the northern end. 1  2  3  THE  4  5  MR.  6  MR.  7  8  9  MR.  10  11  12  13  MR.  14  15  16  17  18  19  THE  20  21  MR.  22  23  THE  24  THE  25  MR.  26  27  28  29  30  31  32  33  34  35  MR.  36  37  38  THE  39  THE  40  THE  41  MR.  42  THE  43  44  MR.  45  46  47  3518  Q   Can you agree with me that your affidavit is  incorrect, Exhibit 185?  COURT:  I'm sorry.  Which one does the witness say is  correct?  RUSH:  184.  MACKENZIE:  He has Exhibit 184 before him, my lord.  Q   And your affidavit is Exhibit 185.  Can you agree with  me that your affidavit is incorrect?  RUSH:  Well, my lord, that affidavit was corrected in  cross-examination, or in direct examination, and is my  friend referring to the one that wasn't corrected or  the one that was?  MACKENZIE:  Q   Your affidavit --  A   Excuse me.  Q   And your affidavit, Exhibit 185, was corrected?  A   Like I said, that northern end, at first I had a doubt  in that, eh, and I corrected it.  COURT:  Can counsel remind me where I'm going to find the  affidavit?  MACKENZIE:  Exhibit 185, my lord, tab 1 in the book of  documents.  COURT:  All right.  Thank you.  REGISTRAR:  Do you wish that before the witness?  MACKENZIE:  Yes, please, for convenience.  Thank you.  Q   So you corrected your affidavit, didn't you, Mr.  Mitchell?  A   Yes, that's just that one -- the northern end of the  boundary.  Q   Okay.  And now your affidavit at the present time, can  you agree with me that is still incorrect?  A  After I corrected that northern end --  Q   Yes.  A   -- It's correct.  MACKENZIE:  Thank you.  My lord, referring to tab 6 in the  black book of documents.  The map at -- may the map at  that tab be put before the witness, please.  COURT:  Tab 6.  REGISTRAR:  Is an affidavit, my lord.  COURT:  Is an affidavit.  You want the map at the back?  MACKENZIE:  Yes, my lord.  COURT:  Is it a map that's attached to Emma Michell's  affidavit?  MACKENZIE:  Yes, my lord.  Q   Now, looking at the southern boundary, Mr. Mitchell,  from Tsee Delk'en, that's different from your map  Exhibit 184, isn't it? 3519  1 A   Yes.  2 Q   And you disagree with that, correct?  3 THE COURT:  Dis —  4 MR. RUSH:  Disagree with?  5 A   Yeah, I disagree with that.  6 MR. MACKENZIE:  7 Q   You disagree with the map, right?  8 A   This is same map as Emma's.  9 Q   Yes.  And looking at the Dungate boundary, that's  10 different from your map?  11 A   That's different too.  12 Q   That's different from your map, Exhibit 184.  You  13 disagree with that too, don't you?  14 A   I disagree with any map you guys put out, because my  15 map is up in my head.  16 THE COURT:  I'm sorry.  Did Mr. — did you say, sir, that you  17 disagree with any map you guys put out?  18 A  My lord, my father taught me all the boundaries.  19 THE COURT:  Yes.  20 A  And every time I look at a map it's all different.  21 THE COURT:  Yes — no.  No.  I think it is important, Mr.  22 Mitchell, to know, do you think this map was prepared  23 by -- by the province, because I think you should be  24 told this map was prepared I think by your side of  25 this dispute.  26 A   Oh, yeah.  27 THE COURT:  I don't want you being under any misapprehension in  28 that regard.  29 A  Why I disagree with this in the first place is the  30 original map the northern end was different than what  31 I know.  That's why I said I disagree.  32 MR. MACKENZIE:  Yes, I understand.  My lord, you're correct,  33 this is a map produced with Dan Michell's  34 interrogatory.  I'm going to be submitting these as  35 exhibits.  36 THE COURT:  I'm not sure I heard the witness accurately.  37 MR. MACKENZIE:  I think your lordship is correct in what you  38 understood the witness to say.  39 THE COURT:  Yes.  Do you understand that, Mr. Mitchell?  40 A   Yes.  41 THE COURT:  All right.  Well, I hope you do.  42 MR. MACKENZIE:  43 Q   And looking at the eastern boundary on this map from  44 tab 6 in the black binder you disagree with that  45 boundary too, don't you?  46 A   Yes.  47 THE COURT:  Well, Mr. Mackenzie, it hasn't been established this 3520  1 is the same map as the one that was gone over almost  2 in the metes and bounds way when the witness was asked  3 about the Emma Michell map.  4 MR. MACKENZIE:  Well, my lord, that's what the witness said  5 having looked at it.  6 A   It looks the same.  7 MR. MACKENZIE:  That's what he says, it looks the same.  8 THE COURT:  Is it the same?  9 MR. RUSH:  He says it — it's the same.  10 THE COURT:  Is it the same map as Emma Michell's map, Mr.  11 Mackenzie?  12 MR. MACKENZIE:  Well, my lord, it appears to be the same, but of  13 course it was produced for a different purpose.  I  14 can't say whether the plaintiffs -- what the  15 plaintiffs' view of it is.  At any rate, my lord, I'll  16 just, if I may, move on to the affidavit that is at  17 tab 6, my lord.  This is the affidavit and the  18 interrogatory answers number 59C referring to this map  19 which was produced as schedule B to the Dan Michell  20 interrogatories.  21 THE COURT:  All right.  22 MR. MACKENZIE:  And, my lord, I would submit that as the next  23 exhibit.  24 THE COURT:  You're tendering the map and interrogatories which  25 will be exhibit --  26 THE REGISTRAR:  Is will be Exhibit 242, my lord, tab 6.  27  28 (EXHIBIT 242:  Map & Interrogatories of Dan Michell)  29  3 0 THE COURT:  Thank you.  31 MR. MACKENZIE:  Now, my lord, referring to the map at tab 12 of  32 the black binder.  33 THE COURT:  Okay.  34 MR. MACKENZIE:  And I'm asking Ms. Sigurdson if she could assist  35 the witness in finding that.  36 THE COURT:  What is this, the Namox territory?  37 MR. MACKENZIE:  No, my lord.  This is Sylvester Williams,  38 Hagwilnegh's territory.  It's as indicated in 185,  39 paragraph 6 of the affidavit.  This is schedule B to  40 the interrogatories of Sylvester Williams, and it  41 purports to show the Hagwilnegh territory up to the  42 east of the Namox territory.  43 THE COURT:  Oh, all right.  I haven't seen this before, have I?  44 MR. MACKENZIE:  No, my lord.  45 THE COURT:  All right.  46 MR. MACKENZIE:  My lord, I'm referring the witness to the Neel  47 dzii ben, a lake in the lower left hand section of 3521  1 that map.  Could I have the spelling, please?  2 THE TRANSLATOR:  I didn't quite understand.  3 MR. MACKENZIE:  Neel dzii ben.  4 THE COURT:  Is it marked on the map?  5 MR. MACKENZIE:  Yes, my lord.  Lower left, my lord.  Can you see  6 the Namox territory there?  It's the whole left part  7 of the map, my lord.  8 THE COURT:  Yes.  9 MR. MACKENZIE:  And the map and lake in the lower part of the  10 Namox territory, my lord.  11 THE COURT:  How is it spelled?  12 MR. MACKENZIE:  Neel dzii ben.  N-E-E-'-H-L B-Z-E-E B-U-N.  13 THE COURT:  No.  Sorry.  14 MR. MACKENZIE:  15 Q   You see that lake, Mr. Mitchell?  16 A   Yes, Neel dzii ben.  17 MR. MACKENZIE:  My lord, do you have the lake?  18 THE COURT:  Nope.  19 MR. MACKENZIE:  See the name Namox, my lord.  If you just look  20 south of that you'll be able to see the lake.  21 THE COURT:  Oh, you're talking about Goosley Lake?  22 MR. MACKENZIE:  Yes, my lord.  23 THE COURT:  Oh, all right.  Looking everywhere but there.  24 MR. MACKENZIE:  Sorry, my lord.  This map has Wet'suwet'en names  25 on it rather than English names.  2 6 THE COURT:  All right.  27 MR. MACKENZIE:  Fine.  Thank you, my lord.  28 Q   Now, looking at the eastern boundary of Namox  29 territory, that's Hagwilnegh's western territory for  30 part of the way, Mr. Mitchell?  31 MR. RUSH:  My lord, perhaps we should go one or two steps  32 backwards.  33 THE COURT:  I think we have.  34 MR. RUSH:  Yes, I do too.  Perhaps we should ask the witness has  35 he ever seen this before, does he recognize the lines  36 on it, do any of these things mean anything to him.  37 MR. MACKENZIE:  I don't want to ask those questions, my lord.  I  38 don't think it's appropriate.  This is a map produced  39 as schedule B to an interrogatory provided by my  40 friends, and in cross-examination this witness has  41 agreed that Sylvester Williams owns the territory to  42 the east of his house's territory, and he recognizes  43 the Goosley Lake area.  My lord, what more should I  44 ask the witness?  45 MR. RUSH:  Well, just the questions that I've indicated.  I  46 think it's reasonable to assume that this witness  47 ought to have some basic understanding of the map. 3522  1 Even my friend, it seems that he had to apologize for  2 there being Wet'suwet'en names on the map.  3 MR. MACKENZIE:  My lord, I'm not apologizing for that.  I'm  4 interrupting.  I'll sit down while my learned friend  5 completes his submission.  6 MR. RUSH:  Thank you.  I think some basic questions about  7 knowledge of the map should be put to the witness.  8 Not draw questions out of the air about a line on the  9 map.  I think it's reasonable to assume that a witness  10 should start with some fundamentals about a piece of  11 paper that's put in front of him.  12 THE COURT:  I think that the questions that you suggest, Mr.  13 Rush, would be exceedingly helpful, but I don't think  14 there's any obligation on counsel to do that.  It will  15 appear very quickly whether the witness has ever seen  16 the map before.  That will be part of the mix that  17 will go into this total equation.  But I think that  18 cross-examination may proceed, as the authorities say,  19 circuitously, and I don't think I should interfere  20 with the way in which counsel proposes to approach a  21 problem.  I think there is a point where fairness may  22 make it necessary to do that.  I'm not sure we've  23 reached that point.  24  25 You may proceed, Mr. Mackenzie.  We're really  26 talking about the west boundary of the witness'  27 property.  28 MR. RUSH:  Yes.  It's the east boundary in the Namox.  29 THE COURT:  I meant the east boundary of the witness' property.  30 Go ahead.  31 MR. MACKENZIE:  32 Q   Mr. Mitchell, do you agree with the east boundary of  33 the Namox territory as shown on this map at tab 12 of  34 the black binder?  35 A   On this map here?  36 Q   Yes.  37 A   No.  38 Q   And looking at the south boundary from Tsee Delk'en --  39 need the spelling of that?  40 THE TRANSLATOR:  It's 298.  41 MR. MACKENZIE:  42 Q   Do you agree with that boundary?  43 A   No, I don't agree with that.  You got little lake  44 outside this boundary called Tloogh teel ben.  I don't  45 agree with that.  46 Q   Looking near the Equity Mine sites you agree with the  47 name Tsee zuul ts'ake ben for Lu Lake? 3523  1 A   Tsee zuul ts'ake ben, that's spelled wrong.  I don't  2 agree with that name there.  3 MR. MACKENZIE:  Need some spelling for that.  4 THE TRANSLATOR:  556.  5 THE COURT:  Where is this lake?  6 MR. MACKENZIE:  My lord, it's at the head waters of Foxy Creek.  7 We looked at it Friday afternoon, if your lordship  8 will recall.  It's just where the mine site -- where  9 the Equity Mine site is today.  10 THE COURT:  What is the name again?  11 MR. MACKENZIE:  It's Tsee zuul ts'ake ben.  12 A   Tsee zuul ts'ake ben.  13 MR. MACKENZIE:  In English it's known as Lu Lake, my lord.  We  14 looked at it in some detail Friday afternoon.  15 THE COURT:  I know.  That was a different map.  16 MR. MACKENZIE:  Sorry.  It's directly northeast of Goosley Lake.  17 THE COURT:  Oh, yes.  18 A   Name of that lake —  19 THE COURT:  I'm sorry.  I haven't found it.  If I need to know  20 where it is -- I need --  21 MR. MACKENZIE:  Sorry, my lord.  It's directly northeast of  22 Goosley Lake.  23 THE COURT:  Yes.  How far?  24 MR. MACKENZIE:  About five inches.  25 MR. RUSH:  My lord, if you took Exhibit 184 there is an X that  26 was marked there as the site of the Equity Silver  27 Mines Ltd., and I believe the lake that my friend is  28 referring to is beside that X.  29 MR. MACKENZIE:  Thank you, Mr. Rush.  30 THE COURT:  Well, I can't find it by the name you use either,  31 counsel.  I'm sure it is here.  So many names that are  32 so foreign to me.  I've never seen them before.  I  33 can't locate them with the description I've been  34 given.  On which property is it on?  35 MR. MACKENZIE:  It's where the mine is.  36 THE COURT:  No.  On this map on which side?  37 MR. MACKENZIE:  It's on the Namox map.  38 THE COURT:  On the Namox side?  39 MR. MACKENZIE:  Yes, my lord.  4 0 THE COURT:  And what's the name again.  41 MR. MACKENZIE:  It's Z-A-Z-U-L-L-E K-H-A-K B-U-N.  42 THE COURT:  Yes, I found it.  43 MR. MACKENZIE:  And, my lord, your lordship will recall in  44 English that's known as Lu Lake.  That's L-U Lake.  45 Q   That's the head waters of Foxy Creek, is that correct,  46 Mr. Mitchell?  47 A   Yes. 1  Q  2  3  A  4  Q  5  A  6  7   MR.  MAC]  3524  And Mr. Mitchell, you don't agree with that name of  the lake --  No.  -- That's on the map?  No.  The name of that lake is G'oh k'ets ha t'ai.  That's the name of that lake.  \FZIE:  The spelling for that, please.  8 THE TRANSLATOR:  G-'-0-H K-'-E-T-S H-A T-'-I-A.  Sorry.  A-I at  9 the end.  10 MR. MACKENZIE:  My lord, I'd submit that map and interrogatory  11 62 which refers to the schedule B, both at tab 12 of  12 my black binder, as the next exhibit.  13 THE REGISTRAR:  Exhibit 243, my lord, tab 12.  14 THE COURT:  Thank you.  15  16 (EXHIBIT 243:  Map & Interrogatory  17 of Sylvester Williams)  18  19 MR. MACKENZIE:  20 Q   Mr. Mitchell, looking at the affidavit of tab 12 —  21 just hang on a minute.  Can you recognize Sylvester  22 Williams signature there?  23 A   I don't -- I don't see him sign his names so I  2 4 wouldn't know.  25 Q   You worked for Sylvester Williams for how long?  26 A   Oh, about four years.  27 Q   Four years?  28 A   Yes, four years.  29 THE COURT:  Well, are you asking for the identification of the  30 signature for the reason of supporting admissibility  31 of the interrogatory affidavit?  32 MR. MACKENZIE:  No, my lord.  33 THE COURT:  I'm sure that's not necessary.  34 MR. MACKENZIE:  No, my lord.  35 THE COURT:  All right.  36 MR. MACKENZIE:  Referring to the map at tab 13, my lord.  I'm  37 sorry, my lord, there are two maps at tab 13.  3 8 THE COURT:  Yes.  39 MR. MACKENZIE:  What I'm referring to is part three of three  40 parts.  It should be the second map after tab 13.  41 THE COURT:  Are you going to be looking at the other one?  42 MR. MACKENZIE:  I'm going to be looking at part three of three  43 parts.  44 THE COURT:  Are you going to be looking at the other one later?  45 MR. MACKENZIE:  Quite a bit later, my lord.  46 THE COURT:  I'll put it back.  47 MR. MACKENZIE:  Now, this is the schedule B to the 1  2  3  4  5  6  7  8  9  10  11  12  13 THE  14 MR.  15  16  17  18  19  20  21  22 MR.  23  24  2 5 MR.  26  2 7 MR.  28  29  30  31  32  33  34 MR.  35 THE  3 6 MR.  37  38  39  40  41  42  4 3 MR.  44  45  4 6 THE  THE  47  3525  interrogatories of Mr. Leonard George.  Q   Mr. Leonard George's name is Smogelgem, isn't it, Mr.  Mitchell?  A   Yes.  Q   And he has territory to the south of your territory,  doesn't he?  A   Yes.  South.  Q   And your territory, Namox, appears in the top centre  of this map, doesn't it?  A   Yes.  Q   And looking at the southern boundary of your territory  from Tsee Delk'en -- need a spelling for that?  TRANSLATOR:  2 98.  MACKENZIE:  Q   You agree with that southern boundary, Mr. Mitchell?  A   I agree with from Tsee Delk'en down to the end here,  but along --  Q   Looking -- sorry.  You agree with Tsee Delk'en west  toward --  A   Towards the creeks, but then eastern boundary I'm not  too sure about.  This one here is okay.  RUSH:  He's pointing from Tsee Delk'en to the east, my lord,  to the end --  A   I agree with this one.  RUSH:  -- To where the creek is located on the eastern side.  A  Allin Creek.  MACKENZIE:  Q   Now, to get your evidence, if I may, Mr. Mitchell,  looking at Tsee Delk'en and going west do you agree  with that?  A   Going west to --  Q   Tsee Deek Woot'ai.  A   Tsee Deek Woot'ai, no.  No, I don't agree with that.  MACKENZIE:  Could I have a spelling for that, please.  TRANSLATOR:  546.  MACKENZIE:  Q   And Tsee Deek Woot'ai is where the boundary goes  north, isn't it?  A   From Tsee Deek Woot'ai, yes.  Q   Thank you.  Now, looking at the eastern boundary of  Namox, do you agree with that?  A   No.  MACKENZIE:  Thank you.  My lord, I submit that map and the  Leonard George interrogatory number 59C and affidavit  all appearing at tab 13 as the next exhibit.  REGISTRAR:  Exhibit 244, tab 13.  COURT:  Well, just this map surely. 1 MR.  2 THE  3 MR.  4  5  6  7  8 MR.  9  10  11  12  13  14  15  16  17  18 MR.  19  20  21 THE  22 MR.  23  24  25 THE  2 6 MR.  27  28  29  30  31  32 MR.  33  34  35 THE  3 6 MR.  37  38  39  40  41  42 MR.  43 THE  4 4 MR.  45  46  47  3526  MACKENZIE:  Yes.  The map is part three of three parts.  COURT:  Yes.  I'm not at the moment marking the other maps.  MACKENZIE:  Thank you, my lord.  (EXHIBIT 244:  Interrogatory, map &  affidavit of Leonard George)  MACKENZIE:  Q   So our position now, Mr. Mitchell, is that you  disagree with that Dan Michell's map, is that correct?  A   Yes.  Q   And you disagree with Sylvester Williams' map, is that  correct?  A   Yes.  Q   And you disagree with Leonard George's map, is that  correct?  A   Yes.  MACKENZIE:  My lord, turning to tab 10.  My lord, tab 10 is  the excerpt of trial Exhibit 5 entitled "External  Boundaries of the Gitksan Wet'suwet'en Territories".  COURT:  I'm sorry.  What is it again?  MACKENZIE:  It's an excerpt from trial Exhibit 5 which is a  very large map entitled "External Boundaries of the  Gitksan Wet'suwet'en Territories".  COURT:  Yes.  MACKENZIE:  Q   Now, Mr. Mitchell, do you see Namox territory in the  centre of that map?  A   Yes.  Q   And looking at the southern boundary from Tsee Delk'en  west do you agree with that boundary?  RUSH:  My lord, because the scale is of a considerably  smaller nature I would think that the witness would be  aided in having his Exhibit 184 beside him.  COURT:  Yes.  MACKENZIE:  Q   Yes.  Exhibit 184 is your sketch map, and Ms.  Sigurdson is putting that beside you.  Can you  locate --  A   From Tsee Delk'en to Tsee Deek Woot'ai I don't agree  with that.  MACKENZIE:  Thank you.  Need spellings.  REGISTRAR:  Tsee Delk'en 298, and Tsee Deek Woot'ai is 546.  MACKENZIE:  Q   Looking up at the Dungate boundary, do you agree with  that?  A   No. 3527  1 Q   And looking over at the Foxy Creek Nee'del eastern  2 boundary -- do you need spelling for Nee'del?  3 THE TRANSLATOR:  Nee'del  4 A   Nee'del.  5 THE TRANSLATOR:  570.  6 MR. MACKENZIE:  7 Q   Do you agree with the eastern boundary?  8 A   No.  From Allin Creek where I had that jack pine place  9 with Indian words on it, from there to Cenexw Dzel  10 Ts'aay it's different.  It's outside.  I don't agree  11 with this.  12 MR. MACKENZIE:  Spelling.  13 THE TRANSLATOR:  552.  14 MR. MACKENZIE:  Now, does your lordship see the boundaries?  15 THE COURT:  Yes.  16 MR. MACKENZIE:  And does your lordship see in the Namox area  17 they partially follow that dark black line?  18 THE COURT:  Yes.  19 MR. MACKENZIE:  Now, turning to tab 6 of the blue book, my lord,  20 light blue book which is the supplementary book of  21 documents.  Put that before the witness, please.  22 THE REGISTRAR  2 3 MR. MACKENZIE  24 THE REGISTRAR  2 5 MR. MACKENZIE  Sorry.  What tab is it?  Tab 6, please.  Thank you.  Now, my lord, this is an excerpt from trial  26 Exhibit 101.  And that trial exhibit is the map of the  27 Carrier Sekani overlap.  2 8 THE COURT:  Yes.  29 MR. MACKENZIE:  And, my lord, in the upper left hand corner of  30 this excerpt you can see part of the overlap line  31 coming down.  That very dark heavy line.  32 THE COURT:  Yes.  33 MR. MACKENZIE:  34 Q   Mr. Mitchell, do you see Namox in the centre of that  35 map, the excerpt from at tab 6?  36 A   Yes.  37 Q   Now, looking at the Dungate boundary, do you agree  38 with that?  39 A   I notice north from Neenlii Wek'ut to the north  40 boundary at the jack pine place I don't agree with  41 that, no.  42 Q   And looking at the eastern boundary do you agree with  43 that?  44 A   No, I don't agree with that, no.  45 Q   And looking at the southern boundary from Tsee Delk'en  46 west do you agree with that?  47 A  Again, from Tsee Delk'en to Tsee Deek Woot'ai I don't 3528  1 agree with that either.  2 MR. MACKENZIE:  No need to mark that, my lord.  It's Exhibit  3 101.  4 THE COURT:  Yes.  All right.  5 MR. MACKENZIE:  6 Q   Now, Mr. Mitchell, you were at the All Clans Feast in  7 Moricetown in April 1986?  8 A   Yes.  9 Q   And at that time did you see a map showing, and at  10 that time --  11 THE COURT:  What was the date again, please?  12 MR. MACKENZIE:  April 1986, my lord.  13 THE COURT:  Thank you.  14 MR. MACKENZIE:  15 Q   Mr. Alfred Joseph testified at volume 38, page 2478,  16 line ten, following that there was a large map at the  All Clans Feast.  Do you remember that large map?  Yes.  Yes.  That large map showed the Carrier Sekani and  Wet'suwet'en territories, didn't it?  Yes.  Now, Mr. Mitchell, in summary, you disagree with Emma  Michell's map?  Yes.  And you disagree with Dan Michell's map?  Yes.  And you disagree with Sylvester Williams' map?  Yes.  And you disagree with Leonard George's map?  Yes.  And you disagreed with the map showing this Carrier  Sekani overlap which we just looked at, Exhibit 101.  You disagreed with the map we just looked at?  On Namox territory?  Yes.  At that time I wasn't looking at Namox territory.  I  was looking at whole territory.  Just now you disagreed with the maps that I showed  you, didn't you?  This one at first I didn't agree with it northern end,  like I said.  Yes.  You're referring to Exhibit 184.  Now, you say  the maps that I've showed you this morning are  incorrect, don't you?  Yes.  And you say that your map Exhibit 184 is the only one  that's right, don't you?  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  31  Q  32  33  34  A  35  Q  36  A  37  38  Q  39  40  A  41  42  Q  43  44  45  A  46  Q  47 3529  1 A   Yes.  2 Q   The other maps are all different from yours, aren't  3 they?  4 A  All different, yes.  5 Q   Now, you told us -- you told his lordship today, and  6 you told us yesterday, that you have a map of the  7 territory in your head, don't you?  8 A  My father taught me that.  9 Q   And the map -- yes.  I'm sorry.  10 THE COURT:  I think if you're going to dive into the witness'  11 head, Mr. Mackenzie, we'll take the morning  12 adjournment first.  13 MR. MACKENZIE:  Thank you, my lord.  14 THE REGISTRAR:  Order in court.  Court stands for a short  15 recess.  16  17 (PROCEEDINGS ADJOURNED)  18  19 I hereby certify the foregoing to be  20 a true and accurate transcript of the  21 proceedings herein to the best of my  22 skill and ability.  23  24  25  26 Peri McHale, Official Reporter  27 UNITED REPORTING SERVICE LTD.  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 3530  1 (Proceedings resumed following short recess)  2 ALFRED MITCHELL, Resumed:  3  4 CROSS-EXAMINATION BY MR. MACKENZIE:   (Continued)  5  6 THE COURT:  Mr. Mackenzie?  7 MR. MACKENZIE:  Thank you, my lord.  8 Q   Mr. Mitchell, you told us lordship this morning that  9 you have a map of the territory in your head; is that  10 correct?  11 A   Yes.  12 Q   And Emma Michell has a map of the territory in her  13 head, doesn't she?  14 MR. RUSH:  How can he speak for Emma Michell?  15 THE COURT:  Can he, Mr. Mackenzie?  16 MR. MACKENZIE:  No, my lord.  17 Q   Marvin George showed you a map, didn't he?  18 A  Who?  19 Q   Marvin George?  20 A   Yes.  21 Q   Yes.  Marvin George's map was different from your map,  22 Exhibit 184, wasn't it?  23 A   In the northern end, yes.  24 MR. MACKENZIE:  That was English, Mr. Roy.  Northern end.  25 Q   Now, my lord, referring to tab 8 --  26 THE COURT:  Of the black book?  27 MR. MACKENZIE:  Of the black book.  My lord, tab 8 is an excerpt  28 from Exhibit 24-A, which are the traplines, the  29 registered traplines in the territory.  Now in the  30 middle of that map, can you see Goosley Lake, Mr.  31 Mitchell?  32 A   Yes.  33 Q   To your knowledge -- and you see around Goosley Lake  34 there is a boundary outlined in green?  35 A   Yes, the southern end, yes.  36 Q   Yes.  And is that the boundary of your — Dan  37 Michell's registered trapline, to your knowledge?  38 A   This one looks different than that.  39 Q   You don't agree with this map; is that correct?  40 A   No, not with this one, no.  41 THE COURT:  Well, I wonder, does the witness understand that you  42 are asking him not whether this is a map of the  43 territory but a map of a trapline.  44 MR. MACKENZIE:  Thank you, my lord.  45 Q   Mr. Mitchell, I am instructed that this map, as  46 outlined in green, is a map of Dan Michell's  47 registered trapline, do you understand that question? 3531  Yes, I understand the question all right but this is  our territory.  Trapline is just a line where you set  trap, as a trapline.  But talking about the whole  territory.  Yes.  This map is the area enclosed within the  registered trapline territory, do you understand that?  Yes.  And are those the boundaries of the registered  trapline territory?  No, this is different -- this is different than ours.  This is different than what I got in mine.  Yes.  But this is the registered trapline territory,  isn't it?  Yes.  :  Well, do you say this does show your trapline  boundaries?  I don't agree with this boundary but it's a registered  trapline.  Registered boundaries, it says.  :  Well, do you agree that this is a map of the  registered trapline?  Yes, but on this here boundaries are a little  different than this.  :  The southern boundary?  Southern boundary, eastern boundary and northern  boundary,   that's   different.  ■JZIE:  What you mean by that is that the registered trapline  boundaries are different from your territory's  boundaries; is that correct?  I never seen a registered trapline map before.  The  only map that I know of is the -- where my father had  taken me around the boundary, around the territories.  But I have never seen a registered trapline map  before.  Thank you.  Now, Mr. Mitchell, referring to your  Exhibit 184, your sketch map, can you tell his  lordship where the mountain Cenexw Dzel Ts'aay is?  Cenexw Dzel Ts'aay, it's northeast from Goosley Lake,  this one here.  Referring to the ridge on the northeast boundary of  Exhibit 184, and there is a name written along that  ridge.  Now, Mr. Mitchell —  :  Is that C-e-n-x --  44 MR. MACKENZIE:  Yes, my lord.  45 MR. RUSH:  That's the one the witness identified.  46 MR. MACKENZIE:  That's the one the witness identified, my lord.  47 Q   Now, Mr. Mitchell, at the end of that ridge there is a  1  A  2  3  4  5  Q  6  7  A  8  Q  9  10  A  11  12  Q  13  14  A  15  THE  COURT  16  17  A  18  19  THE  COURT  20  21  A  22  23  THE  COURT  24  A  25  26  MR.  macke:  27  Q  28  29  30  A  31  32  33  34  35  Q  36  37  38  A  39  40  Q  41  42  43  THE  COURT 3532  1 peak which appears to be 5,132 feet high.  Can you  2 tell me, is that the peak you are referring to,  3 Cenexw Dzel Ts'aay?  4 A   Yes, that's it.  Cenexw Dzel Ts'aay runs right from  5 C'es yis C'ez, right to the peak, the whole works we  6 call it Cenexw Dzel Ts'aay.  7 MR. MACKENZIE:  Can we have spellings on that, please?  8 THE TRANSLATOR:  Cenexw Dzel Ts'aay is 552 and C'es yis C'ez is  9 551.  10 MR. MACKENZIE:  11 Q   Did you have a separate name for the mountain at the  12 southern end of the ridge, the 5,132 foot mountain?  13 A   That's the one like I call from here is call Cenexw  14 Dzel Ts'aay, right to the ridge, right a the peak.  15 Q   Does the peak itself have a separate name?  16 A   No, that's all we call it Cenexw Dzel Ts'aay.  17 MR. RUSH:  The witness was pointing from the place on the map  18 where it stays C'es yis C'ez all the way down to --  19 A   The highest point.  20 MR. MACKENZIE:  21 Q   Now referring to the map, Exhibit 184, would you  22 mark -- can you tell his lordship on this map, Exhibit  23 184, where the lake whose name is English, Lu, L-u  24 Lake is?  And the witness is pointing to the X, which  25 is marked and that is  the Equity Mine site?  26 A   Yes, that's pretty close to that Equity Mine site.  27 That's that lake called —  28 Q   Lu Lake?  29 A   No, call it G'oh K'ets ha t'ai.  30 MR. MACKENZIE:  Spelling, please?  31 THE TRANSLATOR: G'-o-h, k'e-t-s, h-a, t'-a-i.  32 MR. MACKENZIE:  33 Q   Are you aware of the English name for that lake is Lu  34 Lake, is it not, L-u?  35 A   No, I didn't know that by that name.  36 THE COURT:  Sorry, Mr. Mitchell, I you didn't get where the X  37 was, after the X or after the E-T-S?  38 THE TRANSLATOR:   G'-o-h, k'-e-t-s, h-a t'-a-i.  3 9 THE COURT:  Thank you.  40 MR. MACKENZIE:  41 Q   Now, Mr. Mitchell, I am instructed that that lake we  42 have just referred to, beside the X on Exhibit 184, is  43 called in English, Lu, L-u, Lake?  But you don't know  44 it by that name; is that correct?  45 A   No, I don't know it by that name.  I know it by our  4 6 Indian name.  47 MR. MACKENZIE:  My lord, that appears on the plaintiffs' 3533  1 document 5541, which was marked as an exhibit on  2 Thursday, and is now Exhibit 241, which appears at tab  3 14 of the black document book.  I am not asking that  4 that be pulled out at this time, my lord.  5 THE COURT:  All right.  Is that the lake that is outlined in  6 black on Exhibit 184?  7 MR. MACKENZIE:  My lord, on Exhibit 184, the witness has  8 pointed --  9 A   It's got a trail from Goosley Lake right up to the  10 dotted line.  11 Q   There is a dotted line going from Goosley Lake  12 northeast to the point on the map where the witness  13 marked an X, and it's that lake right there, my lord  14 at the headwaters of Foxy Creek.  And that on Exhibit  15 241, plaintiffs document 5541, is Lu Lake, L-u, Lake.  16 MR. RUSH:  That, of course, is a government map.  17 THE COURT:  Yes.  18 MR. MACKENZIE:  19 Q   Now, Mr. Mitchell, we looked at several maps today and  20 on those maps, for example, talk about Emma's map,  21 that lake, Lu Lake, was called say Tsee zuul ts'ak?  22 A   That's wrong.  23 Q   And you say that's wrong?  24 A   Tsee zuul ts'ak is --  25 MR. RUSH:  Which one is he pointing to, please?  26 MR. MACKENZIE:  He is pointing to the lake to the north, where  27 we have marked a letter P.  28 A   Tsee zuul ts'ak is this one here.  29 Q   You say the lake at the X on Exhibit 184 is not Tsee  30 zuul ts'ak, right?  31 A   No, that's not Tsee zuul ts'ak?  32 MR. MACKENZIE:  Need spellings for those, please.  33 THE TRANSLATOR:  That's 556.  34 MR. MACKENZIE:  35 Q   Now Mr. Mitchell, after you swore your affidavit for  36 the first time you went to talk to John Namox, didn't  37 you?  38 A   Yes.  39 Q   And did you talk to Pat Namox as well?  40 A   Yes.  41 Q   And Pat Namox is knowledgeable about the territory as  42 well?  43 A   John and Pat Namox, they are the sons of the late  44 Albert Namox so they know that area pretty well.  45 Q   Now, referring to tab 21 -- my lord I understand  46 that's been put in your lordship's book at the break.  47 And madam registrar is telling me something. 3534  1 THE COURT:  I have something in tab 21.  2 MR. MACKENZIE:  Tab 8 is already an exhibit.  3 Q   Referring to tab --  4 MR. RUSH:  Just a moment.  These documents were handed to me  5 just at the break and I asked you on Friday whether or  6 not there were going to be any further documents and  7 at that time you indicated to me you didn't think  8 there would be.  Now, are there going to be any other  9 documents that you are going to be giving to me?  10 MR. MACKENZIE:  Well, Mr. Rush, as I prepare the cross-  11 examination I have tried to get the documents to you  12 as quickly as possible.  I note this is plaintiffs'  13 document number 5589 and this came to my a attention  14 over the weekend, but of course it's been on your list  15 of documents perhaps for several -- for a year or two.  16 And I can't give you an assurance there are no others  17 but, as I said to you, as I said to my friend, my  18 lord, I have tried to give him all the documents that  19 I was aware I was going to use.  20 My lord, this is a document entitled Patrick Namox  21 interviewed by Alfred Joseph, February 17, 1982.  And  22 referring to the first line at the first entry, P. N.,  23 there are some Indian or some Wet'suwet'en names,  24 which I will ask Mr. Mitchell to pronounce.  25 MR. MACKENZIE:  Well, perhaps I will pronounce them if you are  26 having a problem reading that.  27 THE TRANSLATOR:  Tsa leeh taa si.  28 MR. MACKENZIE:  There are some Wet'suwet'en words, Tsa leeh taa  29 si, and then there is a sentence, "Tsa zulle khak bun  30 is Lu Lake on the map in my father's hunting ground  31 the Tsa U clan, within that clan will be two groups  32 and they stay within their alloted lines or valleys,  33 but still belongs to the same house so for that reason  34 I don't know very much about some parts of my father's  35 clan ground we grew up on the west side of Goosley  36 Lake."  37 So, Mr. Patrick Namox is apparently saying that Tsa  38 zulle khak bun is Lu Lake.  Now, do you disagree with  39 that, Mr. Mitchell?  40 A   Yes, I disagree with that.  41 MR. MACKENZIE:  Now, my lord, moving on to a new subject, at tab  42 17 there are some documents and the first document is  43 a table of contents, then moving over to the next  44 document, which is at tab 17 in the black book, there  45 is a document which is Attorney-General of British  46 Columbia 3117, Application for Registration of  47 Trapline, dated February 13, 1976. 3535  1 Q   And you recognize Dan Michell's signature on that  2 document, Mr. Mitchell?  3 A   I don't pay too much attention to somebody else's  4 signature.  It could be his.  5 Q   Yes.  Yesterday or last week you recognized, you  6 identified Dan Michell's signatures on the band  7 council resolutions, didn't you?  8 A   I didn't say that.  All I said was I recognized mine.  9 Q   You see that, on that document, dated February 13,  10 1976, your name appears on the copy which is the back  11 of the document, Mr. Alfred Mitchell?  12 A   Yes.  13 Q   And, as you said, you are a member of Dan Michell's  14 registered trapline, aren't you?  15 A   Yes.  16 Q   And before Dan Michell, Alex Tiljoe had that line,  17 didn't he?  18 A   Yes.  19 Q   And you know the line was transferred to Dan Michell  20 in 1976, don't you?  21 A   Yes.  22 MR. MACKENZIE:   Now, I tender that document as the next  23 exhibit.  24 THE REGISTRAR:  Exhibit 245, tab 17.  25 MR. RUSH:  I say there is no basis for admissibility from this  26 evidence.  I am not going to take a strict position on  27 it because the next witness is Dan Michell.  28 THE COURT:  He said it could be Dan Michell.  29 MR. RUSH:  Yes.  We would like the original put in.  30 MR. MACKENZIE: My lord, we will do that at the break.  31 THE COURT:  This will be Exhibit 245.  32  33 (EXHIBIT 245:  APPLICATION FOR REGISTRATION OF  34 TRAPLINE DATED FEBRUARY 13, 1976)  35  36 THE COURT:  I heard the other day that close enough is only  37 appropriate in horse shoes and hand grenades.  38 MR. RUSH:  I have heard some other things as well, my lord.  39 THE COURT:  Maybe it applies in this case to admissibility as  40 well.  41 MR. MACKENZIE:  42 Q   And going over to the next document, which is copies  43 of application dated August 2, 1947, it appears at the  44 bottom of that, Mr. Mitchell, can you recognize Alex  45 Tiljoe's signature down there?  46 A   No, I don't know how he writes.  Like I said, I don't  47 know somebody else's signature. 3536  1 Q   So you don't know Connie Tiljoe's signature either?  2 A   No.  3 Q   Is this his wife?  4 A   Connie Tiljoe, yes, his wife.  5 Q   Looking to the back of that page, the photocopy,  6 looking up at the top, the list of members, your name,  7 Alfred Mitchell, appears at the bottom of that list,  8 doesn't it?  9 A   Yes.  10 THE COURT:  I am having trouble with this document.  Is that the  11 front and back of two documents?  12 MR. MACKENZIE:  No my lord, the front and back of two documents,  13 with some appendages lifted and put down.  We see that  14 on other trapline applications and I will provide the  15 original copy to your lordship.  16 THE COURT:  Well, is —  17 MR. MACKENZIE:  It's the same document.  18 THE COURT:  Does the first document end above where there is  19 typed in "Transferred to Michell Dan on 14 of July,  20 1973"?  21 MR. MACKENZIE:  On the front of the first page, that's correct,  22 my lord.  And the trapline description is on a flimsy  23 piece of paper attached to the original, if you will  24 remember, my lord, and it is down at the top of that  25 copy and then folded up at the top of that page so you  26 can see what is underneath that flimsy piece of paper,  27 with the trapline description on it.  28 THE COURT:  So, the coats of arms, et cetera, the at the bottom  29 of that page are the bottom on the document that are  30 covered over by the metes and bound description, are  31 they?  32 MR. MACKENZIE:  Yes, my lord.  33 THE COURT:  All those coats of arms down at the bottom?  34 MR. MACKENZIE:  Yes, my lord.  We have the original here, we  35 will make it available at the break.  Just trying to  36 find the original right now.  37 My lord, the witness has not identified the  38 signature but this matter of the trapline documents  39 has come up before and I am submitting this document  40 as an exhibit under the general category of the  41 underlying documents to Exhibit 24-A, which is the  42 trapline, map of the trapline boundaries with  43 accompanying files, government files.  44 THE COURT:  Is 24-A an exhibit or for identification?  45 MR. MACKENZIE:  It's for exhibit, my lord.  It's the large map  46 of the trapline boundaries.  47 MR. RUSH:   No, it's for identification. 3537  1 MR. MACKENZIE:  I am sorry -- I understand it's been proven with  2 respect to some individual items and we will have to  3 look at the transcript on that.  4 So I will get, I have the references in the  5 transcript where that discussion is taking place so I  6 won't go on with that right now, my lord, but I will  7 move on to another subject.  8 Now my lord, I am concluding my cross-examination  9 on Namox territories and there is a couple of  10 housekeeping matters with respect to this binder that  11 I want -- I would like to deal with now, my lord.  12 Tab 18 in the black binder, there is -- there are  13 documents from the Land Title Office, the first  14 document there I am not submitting because that is  15 simply a summary of the history of this property.  Lot  16 2497, but the next document is the Land Title Act form  17 17, relating to David Stewart Jellet, and Phyllis  18 Theresa Irene Jellet.  And the next document --  19 THE COURT:  Are you talking about this transfer, L-13421?  20 MR. MACKENZIE:  I was talking about the one just before that, my  21 lord.  It's R-4107.  Does your lordship have that?  22 And R-4108.  23 THE COURT:  Yes, I have that.  24 MR. MACKENZIE:  That's the first document I just referred to, my  25 lord.  26 THE COURT:  Then there is a marriage certificate.  27 MR. MACKENZIE:  It's an application for registration.  And then  28 the next one is L-13421, which is transfer of estate  29 in fee simple.  30 THE COURT:  From Buck Creek Ranch to the Jellets.  31 MR. MACKENZIE:  Yes, my lord.  We have had evidence about the  32 Buck Creek Ranch, my lord, and that lot 2147, that,  33 the location of the ranch.  34 THE COURT:  Is this admissible under the Evidence Act?  35 MR. MACKENZIE:  My lord, I am submitting this as the Land Title  36 Office documents were submitted by Mr. Goldie during  37 the cross-examination of Mr. Alfred Joseph and that  38 discussion, my lord, appears at volume 38, page 2515)  39 line 43 to page 2516--  40 THE COURT:  Why should I look at that?  41 MR. MACKENZIE:  I am suggesting this is admissible under the  42 Evidence Act and The Land Title Act section 308 as  43 documents on file with the registrar of land titles.  44 THE COURT:  They can be admitted in evidence when certain  45 requirements have been satisfied.  Have they been  46 satisfied in this case?  47 MR. MACKENZIE:  I am going to submit this for — as an exhibit THE  MR.  9  10  11  12 THE  13  14  15  16  17  18 THE  19 MR.  20  21  22 THE  2 3 MR.  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39 THE  40  41  42  43  44  45  4 6 THE  4 7 MR.  3538  as it is now, subject to my friends requiring these to  be certified and, if so, then I will request that  these be submitted for identification and that pending  the receipt of certified copies of these documents  from the registrar of land titles.  COURT:  Mr. Rush?  RUSH:  Well, my lord, I saw these in his document book and  reviewed them.  Before taking a position on this I  would like to review the section 308 of the Land  Titles Act.  I am aware of that section but not in  detail so I would reserve taking a position on that.  COURT:  We will mark it as an exhibit for identification  then.  (EXHIBIT 246 FOR IDENTIFICATION: TRANSFER IN FEE  SIMPLE DATED SEPTEMBER 29, 1982)  COURT:  The front and back of that document L-13421.  MACKENZIE:  I am also submitting a final document, which  purports to be the original Crown grant, a copy of the  original Crown grant.  COURT:  On the same basis?  MACKENZIE:  Yes.  (EXHIBIT 247:  L2497)  CROWN GRANT DOCUMENTS  JOSEPH FRASER  MR.  Q  A  MR.  MACKENZIE:  And one further tab on that, my lord, and that  binder it's one of the, tab 19, this deals with the  general questions, general series of questions that I  was asking the witness about, band council, and I  would ask the witness to turn to page 30 or the page  marked 30, of that document.  And, Mr. Mitchell, that is your signature that appears  on the last page of that -- sorry page seven?  Yes.  MACKENZIE:  I would submit that as the next exhibit, my  lord.  COURT:  That will be Exhibit 248.  (EXHIBIT 248:BY-LAW FOR THE PRESERVATION, MANAGEMENT  AND CONSERVATION OF FISH ON TRADITIONAL LANDS AND  WATERWAYS OF THE MORRICETOWN BAND, DATED FEBRUARY 28,  1983)  REGISTRAR:  Exhibit 248, tab 19.  MACKENZIE:  That's a by-law for the preservation, management 3539  1 and conservation of fish and on traditional lands and  2 waterways of the Moricetown band, dated February 28,  3 1983.  4 MR. MACKENZIE:  Now, my lord, moving on to a new area of, new  5 subject matter.  6 Q   Mr. Mitchell, I direct your attention to your  7 affidavit, Exhibit 185, which is tab 1 in your red  8 document book.  We won't need Exhibit 184 for the next  9 little while.  Could you also place Exhibit 211 before  10 Mr. Mitchell, which is the sketch map of the Caspit  11 territories.  Now, Mr. Mitchell, I refer you to  12 paragraph 18 of your affidavit, at page six, that's  13 Exhibit 185.  And there you say at the last part of  14 that paragraph, the last sentence, "He", meaning  15 Sylvester Williams, "told me this territory belongs to  16 Goohlaht."  Do you see that?  17 A   Yes.  18 Q   And at paragraph 22, the last sentence, you say,  19 "Hagwilnegh told me that throughout that time the  20 members of the house of Goohlaht had owned, harvested  21 and looked after the X'aaz Kwe..."  Spelling is in the  22 affidavit, "...Territory from generation to  23 generation."  Do you see that?  24 A   Yes.  25 THE COURT:  X'aaz Kwe is not the territory of Caspit, is it?  26 MR. MACKENZIE:  27 Q   We are talking about the territory of Caspit, aren't  28 we?  29 A   Yes.  30 Q   At Blunt Creek, correct, as shown on your Exhibit 211,  31 correct?  32 A  We are talking about X'aaz kwe, yes.  33 Q   We are talking about the Caspit territory as appears  34 on Exhibit 211?  35 A   Yes.  36 Q   Well, in fact, Sylvester Williams owned that  37 territory, didn't he?  38 A   Yes.  39 THE COURT:  You are going to have to excuse me for a moment.  I  40 am having difficulty recalling the relationship  41 between Goohlaht and Caspit.  Goohlaht in the  42 statement of claim is said to be a house, a separate  43 house from -- is Caspit, House of Caspit not  44 represented somewhere?  Or is this one of those cases  45 where there is -- the house is different from the name  46 of the chief?  47 MR. RUSH:  My lord, I can advise that Caspit is the name of a 3540  1 chief and is the name of a chief in the house of which  2 the chief Goohlaht is the head chief.  So Caspit is  3 under Goohlaht.  4 THE COURT:  This is called the territory of Caspit or have we  5 called it that for the sake of convenience?  6 MR. RUSH:  It's convenience' sake but it's principally under  7 Goohlaht.  8 THE COURT:  Your Exhibit 211 calls the territory the territory  9 of Caspit.  And by that designation you are referring  10 to the territory owned by the house of Goohlaht?  11 MR. RUSH:  Castit is a chief under Goohlaht, yes.  12 THE COURT:  All right.  Thank you.  13 MR. MACKENZIE:  14 Q   So Mr. Mitchell, you write, you say in your affidavit,  15 Sylvester Williams told you that the territory belongs  16 to Goohlaht, don't you?  Sorry, I don't mean to  17 interrupt you, but I was just asking you if that's  18 what you say in your affidavit?  19 A   Yes.  20 Q   Thank you.  Now, referring to tab 12 of the black  21 binder, my lord, interrogatory 59(c).  22 THE COURT:  Tab 12?  23 MR. MACKENZIE:  Tab 12.  59(c).  Would your lordship keep the  24 affidavit handy?  That might be convenient for your  25 lordship as well.  2 6 THE COURT:  Do you want me to look at that the map?  27 MR. MACKENZIE:  No, my lord.  Yes, my lord, ready to proceed  2 8 now.  29 If your lordship will look at interrogatory 59 -- I  30 am sorry, if your lordship will look at interrogatory  31 58 and the answer, this is the interrogatory of  32 Sylvester Williams, whose name is Hagwilnegh, and this  33 interrogatory reads:  "Does your house claim ownership  34 or jurisdiction over any particular territory."  35 That's interrogatory 58.  3 6 THE COURT:  Yes.  37 MR. MACKENZIE: And the answer which appears on the next page is  yes. And going to interrogatory 59(c), which is on  the next page, page 13, "What are the boundaries of  your house's territory?" "The boundaries are Blunt  Creek to the east and the western boundary is Blunt  Mountain."  Now, Mr. Mitchell, Sylvester Williams' name was  Hagwilnegh, wasn't it?  Yes.  And he was chief in the Laksilyu Clan, wasn't he?  Yes.  38  39  40  41  42  43  44  45  A  46  Q  47  A 3541  1 Q   And in this interrogatory, he claims ownership of the  2 territory from Blunt Mountain east to Blunt Creek,  3 didn't he?  4 A   He didn't say that to me when he took me out there.  5 He said it was Gil seyhu territory.  6 THE TRANSLATOR:  132.  7 MR. MACKENZIE:  132, my lord.  8 Q   Looking at Exhibit 211, Mr. Sylvester Williams  9 interrogatories have been marked as an exhibit  10 already, my lord.  11 THE COURT:  Yes.  12 MR. MACKENZIE:  But those interrogatories should be marked,  13 that's 58 and 59(c), should be marked as the next  14 Exhibit.  15 THE COURT:   I have got the affidavit marked as 243.  Doesn't  16 that carry with it the answers that are attached to  17 it?  18 MR. MACKENZIE:  Yes, that will be satisfactory.  19 Q   Now Mr. Mitchell, look at Exhibit 211, which is your  20 map, do you see that?  21 A   Yes.  22 Q   Your boundary or the boundary on your map does not go  23 north to Blunt Mountain, does it?  24 A   On this map here it shows Seaton Mountain.  25 Q   Yes.  And Blunt Mountain is north of that, isn't it?  26 A  Where Seaton Mountain is that's Blunt Mountain.  27 Q   And on the north of the boundary you see marked on  28 that map, Blunt Mountain?  29 A   I can't see this on here.  30 Q   That's because the exhibit stamp is covering it.  You  31 see Blunt Mountain on the north of that?  32 A   No, that's too far north.  33 Q   So, you are referring to Blunt Mountain which appears  34 on Exhibit 211?  35 A   That's too far north.  36 Q   And you say that's too far north, do you?  37 A   Yes, for Blunt Mountain.  38 MR. MACKENZIE:  Does your lordship have Blunt Mountain?  3 9 THE COURT:  Yes.  40 MR. MACKENZIE:  41 Q   So you disagree with the map, Exhibit 211, do you, Mr.  42 Mitchell?  43 THE COURT:  Well, are the two things comparable?  The affidavit  44 is given by Sylvester Williams, Hagwilnegh, but it  45 doesn't say on whose behalf or what house he is  46 talking about?  47 MR. MACKENZIE:  Well, my lord he is speaking on behalf of his 3542  1 own house, which is Hagwilnegh.  2 THE COURT:  Which is what?  3 MR. MACKENZIE:  Hagwilnegh.  4 THE COURT:  Is that the house of Hagwilnegh?  5 MR. MACKENZIE:  Yes my lord.  6 THE COURT:  I am having difficulty with the answer that Blunt  7 Mountain is too far north, too far north to what?  8 MR. MACKENZIE:  I will ask Mr. Mitchell.  9 Q   What do you mean, Mr. Mitchell, is that the location  10 of Blunt Mountain on this map, Exhibit 211, is  11 incorrect?  12 A   Okay.  13 MR. RUSH:  He didn't say that.  14 MR. MACKENZIE:  I am just asking what he meant.  15 A   Incorrect, yes.  16 MR. MACKENZIE:  17 Q   Well, we don't understand what you mean, Mr. Mitchell.  18 Do you mean that the location on the map is incorrect  19 or that the boundary is incorrect?  Or either?  20 A   Location of the mountain is incorrect.  21 MR. MACKENZIE:  So, my lord, the witness is saying now the  22 location of the mountain on the map is incorrect.  23 THE COURT:  I don't know if he means that or the location of the  24 map in relation to the boundary is incorrect.  I don't  25 know what he is saying.  26 MR. MACKENZIE:  I am sorry, my lord.  27 Q   Look at the map, Mr. Mitchell, do you agree with the  28 location of Blunt Mountain on that map?  29 A   No, I don't agree with that.  30 THE COURT:  Where should it be?  31 A   No, I don't agree with that.  Blunt Mountain is way up  32 north.  33 THE COURT:  Where do you say it is?  34 A   Blunt Mountain where that Seaton Mountain is, that's  35 where it's supposed to be, Blunt Mountain.  36 THE COURT:  Seaton and Blunt Mountain are close together, are  37 they?  38 A   Yes.  39 MR. MACKENZIE:  40 Q   And what is the Wet'suwet'en name for Mount Seaton?  41 A   Still call it Seaton.  That mountain we call at this  42 time Hat eet nen.  43 MR. MACKENZIE:  Spelling for that?  It appears on Exhibit 211.  44 THE COURT:  Hat —  45 THE TRANSLATOR:  It's 582.  46 MR. MACKENZIE:  47 Q   What's the Wet'suwet'en name for Blunt Mountain? THE  THE  MR.  9  10  11 MR.  12 MR.  13  14  15 MR.  16 THE  17  18 MR.  19 THE  20  21 MR.  22 THE  23  24  25  26  27  2  29  30  31 THE  32  33  34 MR.  35 THE  36  37  38  39  4 0 MR.  41  42  43  44  45  4 6 THE  4 7 MR.  A  Q  RUSH:  RUSH:  COURT:  RUSH:  COURT:  RUSH:  COURT:  3543  A   The Blunt Mountain is what they call Hat eet nen.  COURT:  Same thing.  A   Hat eet nen.  TRANSLATOR:  Same thing, 582.  MACKENZIE:  Q   So, you understand that Blunt Mountain as Mount Seaton  to be the same mountain; is that correct?  Blunt Mountain and Seaton Mountain are the same.  So, your map, Exhibit 211, is incorrect, is that fair  to say?  In what respect is my friend putting that to him?  MACKENZIE:  Q   The location of Blunt Mountain on your exhibit, 211,  is incorrect?  He hasn't put Blunt Mountain on the map.  Yes, I think, with respect, he has, Mr. Rush.  He  says it's right there where Mount Seaton is shown.  That's right.  But what's incorrect then?  Well, Blunt Mountain on this, is marked on this map  is marked to be considerably north of Seaton Mountain.  But the witness' mark is the overlay.  Well, the underlying map has Seaton and Blunt  Mountains both marked on it.  They are some distance  apart and the witness says Blunt is not there where  it's shown.  It's down by Seaton.  That seems to  suggest to me that the map is wrong, without regard to  the overlay.  Well, if that's the question put to him, that's a  different can he question than the one is that was put  to him.  He said "Is your map wrong?"  When he says your map, he was referring to 211.  I  am sure there is an answer to all this.  Maybe you  better explore it further, Mr. Mackenzie.  MACKENZIE:  Thank you, my lord.  COURT:  As a matter of fact the evidence the witness has  given makes sense, given Mr. Williams' affidavit,  because Blunt Mountain was moved north so that there  could be a space between Blunt Mountain and Blunt  Creek.  MACKENZIE:  Q   Mr. Mitchell, Sylvester Williams was Hagwilnegh?  Yes.  And you have said that his house name, his house name  was Hagwilnegh too, wasn't it, the name of his house?  It's the same as my wife, G'en egh La yex.  That's 399.  MR. RUSH  COURT:  A  Q  A  TRANSLATOR:  MACKENZIE: 3544  1 Q   And, Mr. Sylvester Williams was not a member of the  2 House of Goohlaht, was he?  3 A   No.  4 Q   Mr. Sylvester Williams' chief name was never Caspit,  5 was it?  6 A   No.  7 Q   Mr. Sylvester Williams was the registered owner of the  8 territory along, around Blunt Creek, wasn't he?  9 A   Yes.  10 Q   And he trapped there for many years, didn't he?  11 A   Yes, he trapped there with his grandfather.  12 Q   Yes.  And Mr. Sylvester Williams in his  13 interrogatories says that his house owns the Blunt  14 Creek area, correct?  15 A   Blunt Creek -- all I knew is that he had the Blunt  16 Creek area registered and then later on in the '70s,  17 he transferred it back to Stanley Morris, Caspit.  18 Q   But it was Sylvester Williams who controlled the  19 territory, wasn't it, when he was trapping?  20 A  All I know is that he had the place registered and  21 that is when he invited me up there and after he  22 returned it to Stanley, I never went back up there  23 again.  24 Q   And you said to his lordship and in your affidavit --  25 you said to his lordship that Sylvester returned the  26 property to Stanley Nikol, didn't you?  27 A   Yes, returned it to Stanley.  28 Q   In fact, Sylvester Williams gave permission for  29 Stanley to use the territory, didn't he?  30 A   Only recently that he returned that territory back to  31 Stanley.  But he was raised by his grandfather and  32 that's who he trapped with in that area all the time.  33 That's all I knew.  34 THE COURT:  That's Mr. Williams?  35 A   Yes, that's Sylvester Williams.  36 MR. MACKENZIE:  37 Q   Just before we adjourn, my lord, referring you to --  38 your lordship and the court and Mr. Mitchell to  39 interrogatory 85(c) for Sylvester Williams, Mr.  40 Williams says, "Just before the start of this court  41 case I gave permission to Stanley Nikol, Jerry  42 Williams and Stanley Morris to use my territory."  43 THE COURT:  I am going to adjourn, Mr. Mackenzie, you can resume  44 that at 2 o'clock.  45  46  47 3545  1       (PROCEEDINGS ADJOURNED AND RESUMED FOLLOWING LUNCH BREAK)  2  3  4  5 I hereby certify the foregoing to be  6 a true and accurate transcript of the  7 proceedings herein to the best of my  8 skill and ability.  9  10  11  12  13  14 Wilf Roy  15 Official Reporter  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  4 7 (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT) 3546  1  2 THE REGISTRAR:  Delgamuuwk versus Her Majesty the Queen at bar,  3 my lord.  4 THE COURT:  Mr. Mackenzie.  5 MR. MACKENZIE:  Thank you, my lord.  My lord, we just referred  6 to Sylvester Williams' interrogatories at tab 12,  7 interrogatory 85C.  8 THE COURT:  Yes.  9 MR. MACKENZIE:  That's Exhibit 243, my lord.  10 THE COURT:  Yes.  11 MR. MACKENZIE:  12 Q   I'm referring to paragraph 22 of your affidavit,  13 Exhibit 185, Mr. Mitchell.  Tab 1 of the red book.  14 You say there that, and we have looked at this  15 sentence, you say, "The members of the house of  16 Goohlaht had owned..." --  17 THE COURT:  I'm sorry.  Where are you?  18 MR. MACKENZIE:  Sorry, my lord.  19 THE COURT:  What paragraph?  20 MR. MACKENZIE:  Exhibit 185.  21 THE COURT:  Yes.  22 MR. MACKENZIE:  Paragraph 22.  23 THE COURT:  Thank you.  Yes.  24 MR. MACKENZIE:  25 Q   "Hagwilnegh told me throughout that time the members  26 of the house of Goohlaht had owned the territory from  27 generation to generation."  You say that in that  28 paragraph, don't you, Mr. Mitchell?  That's your  29 affidavit, isn't it, Mr. Mitchell?  30 A   Yes.  31 Q   And referring to Mr. Sylvester Williams'  32 interrogatories, number 59D, and that's at tab 12.  33 That's Exhibit 243.  34 THE COURT:  59D?  35 MR. MACKENZIE:  Yes, my lord.  3 6 THE COURT:  Yes.  37 MR. MACKENZIE:  38 Q   "Since when has your house owned or claimed  39 jurisdiction over this territory?  "Since before the  40 memory of man."  And in this interrogatory as appears  41 from the affidavit Mr. Sylvester Williams is speaking  42 about his own house, the house of Hagwilnegh.  Now,  43 last week, Mr. Mitchell, you expressed some concern  44 about the logging on the Caspit territories, didn't  45 you?  46 A   Yes.  47 Q   Yes.  And you testified also at volume 56, page 3395, 3547  1 that you were logging for Fink's Sawmill two years  2 ago, is that correct?  3 A   Yes.  4 Q   Yes.  And that was out in the eastern part of the  5 Caspit territory, is that correct?  6 THE COURT:  What was the name?  7 MR. MACKENZIE:  Fink's.  F-I-N-K-'-S, my lord.  8 A   Down north here.  No, not that way.  We were at  western part and -- western part and eastern part,  both area.  So you've been logging in the western part?  Yes.  I was logging this area, western part, yes.  Yes.  You're pointing at the access road that goes  along in the western part below Kwun Creek on 211, is  that correct?  Yes.  Along that road here.  You told his lordship that you replanted that in 1968,  didn't you?  Yes.  And then later you told us that you were working over  along the Harold Price Creek area in the eastern part  of the territory, didn't you?  That was two years ago, yes.  Yes.  Two years ago.  And is the owner of Fink's  Sawmill Ben Fink?  Fink's Sawmill Company, yeah.  Is that Ben Fink's company?  Ben Fink's company.  \FZIE:  Referring to interrogatory number 101, my lord,  at tab 12, Exhibit 243.  31 THE COURT:  I'm sorry.  Which interrogatory?  32 MR. MACKENZIE:  Number 101, my lord.  Tab 12 of the black book.  33 THE COURT:  Yes.  34 MR. RUSH:  We don't have it.  35 MR. MACKENZIE:  Subsection D.  36 Q   "Have you or any members of your house or ancestors  37 been denied the right of access to or use of your  38 house and lands or resources and if so who denied such  39 use and access?  White loggers and logging companies.  40 Ben Fink was one such logger."  41  42 Now, you testified, Mr. Mitchell, that Blunt  43 Mountain and Mount Seaton are the same mountain as far  44 as you're concerned, is that correct?  45 A  When one first went through there he called it by our  46 language.  He said Hat eet nen.  That's the  47 boundaries.  That's what Sylvester said to me.  And I  9  10  11  Q  12  A  13  Q  14  15  16  A  17  Q  18  19  A  20  Q  21  22  23  A  24  Q  25  26  A  27  Q  28  A  2 9 MR.  MAC]  30 3548  1 think different maps -- that is Blunt Mountain some  2 maps, forestry maps.  3 MR. MACKENZIE:  Do you need a spelling for that.  4 THE TRANSLATOR:  582.  5 MR. MACKENZIE:  6 Q   Referring to paragraph 20 of your affidavit, Exhibit  7 185, you say that the north of this territory is  8 Smogelgem, is that correct?  I am now helping you by  9 showing you your affidavit, which is tab 1 of the red  10 book, it's Exhibit 185, and referring to paragraph 20,  11 and you say, "To the north is Smogelgem, correct?  12 A   Yes.  13 Q   Yes.  And Smogelgem is Mr. Leonard George, correct?  14 A   To the north is Tommy Tate who is of the same -- same  15 clan as Smogelgem.  16 Q   Smogelgem is Leonard George, isn't it?  17 A   Yeah, that's right.  18 Q   Yes.  Leonard George, you said, is knowledgeable about  19 his boundaries, isn't he?  20 A   On this boundary?  21 Q   No.  Generally.  22 A   Yes.  23 Q   Yes.  And referring to tab 13 of the black binder, the  24 first map which is part two of three parts.  Now, this  25 is a map attached to Mr. Leonard George's  26 interrogatories, and it's -- it is a map of his  27 territory which is to the north of the your -- of the  28 Caspit territory.  Now --  29 MR. RUSH:  It says draft copy.  30 MR. MACKENZIE:  31 Q   In the bottom of that map do you see the words Wah tah  32 k'eght?  33 A   Yes.  34 Q   And you also see the words K'aaz kwe?  35 A   K'aaz kwe, yeah.  K'aaz kwe.  K'aaz kwe.  36 MR. MACKENZIE:  Referring to the — I'm referring to the river  37 coming up at the left hand part of the map, my lord.  38 THE COURT:  All right.  The line that runs more or less north  39 and south and then turns to the west?  40 MR. MACKENZIE:  Yes, my lord.  41 THE COURT:  Yes.  42 MR. MACKENZIE:  43 Q   What I want to draw your attention to is the mountain  44 up north of your boundary called Hat eet nen.  Now --  45 THE TRANSLATOR:  Excuse me.  46 MR. MACKENZIE:  It's in this part of the map up here.  4 7 THE COURT:  Yes. 3549  1 MR. MACKENZIE:  2 Q   Now, that's your name for Blunt Mountain, isn't it,  3 Mr. Mitchell?  4 A   I still couldn't read this map here.  Okay.  That's  5 Sus kwe.  6 Q   You're looking at the Sus kwe river which comes down  7 from the upper left hand part of the map and proceeds  8 down through Smogelgem's territory.  Do you see that?  9 Or, I'm sorry, that's Harold Price Creek that comes  10 down there, isn't it?  11 MR. RUSH:  Is Harold Price Creek mentioned on the map?  12 A   It comes from east down into -- river gets bigger down  13 towards south end.  14 MR. MACKENZIE:  15 Q   Can you see where that map is now, Mr. Mitchell, that  16 area is?  17 A   Hat eet nen.  I don't know that name, no.  18 THE COURT:  Mr. Mackenzie, I'm lost here, but I think —  19 A   I'm lost.  20 THE COURT:  But I think I may have been misled.  You said this  21 was the area of Smogelgem north of Caspit.  22 MR. MACKENZIE:  Yes, my lord.  23 THE COURT:  Are you suggesting the designation Wah tah k'eght  24 here is wrong?  25 MR. MACKENZIE:  Yes, my lord.  2 6 THE COURT:  All right.  I found my way back on the trail.  27 MR. MACKENZIE:  That will become clear, my lord, that if what  28 your lordship will recall the Exhibit 84 was Mr. Henry  29 Alfred's map, I'm going to be asking your lordship to  30 get that out because it's relevant to this  31 cross-examination.  32 THE COURT:  I have it out.  It's right here.  33 MR. MACKENZIE:  Could Exhibit 184 be put before — I'm sorry.  34 Exhibit 84 be put before the witness.  35 THE REGISTRAR:  I don't have the exhibits past 102.  36 MR. MACKENZIE:  Exhibit 84.  37 THE COURT:  Does Harold Price Creek run down to the Bulkley?  38 A   Harold Price Creek goes into Sus kwe then it runs into  39 Bulkley.  4 0 THE COURT:  Thank you.  41 MR. MACKENZIE:  If we could keep out the — I'm going to ask  42 that the map you were just looking at, the Smogelgem  43 map, be marked as an exhibit, my lord.  And then I  44 would like to have it compared with -- we'll discuss  45 Exhibit 84 as well.  46 THE COURT:  You're asking for tab 13, Leonard George's affidavit  47 and this map be marked.  Well, the affidavit is 3550  1 already an exhibit.  2 THE REGISTRAR:  Already marked 244, my lord.  3 THE COURT:  This map can be 244A then.  4 THE REGISTRAR:  Thank you.  5  6 (EXHIBIT 244A:  Map)  7  8 MR. MACKENZIE:  9 Q   Now, you have Mr. Henry Alfred's map in front of you  10 which is Exhibit 84, Mr. Mitchell, and that's the —  11 that's the map for Wah tah k'eght, K-E-G-H-T.  And you  12 see there's no reference to Caspit on that map, don't  13 you?  Is that correct, Mr. Mitchell?  14 A   No.  This is X'aaz kwe.  That's only one I know.  15 Q   And I want you to look up in the northern part of that  16 territory, Mr. Mitchell.  Now, I'm now pointing up to  17 the northern part of that map, Exhibit 84.  Just above  18 the northern boundary of Wah tah k'eght as shown on  19 Exhibit 84 there's a name Taa taat nee.  Do you see  20 that name right there?  21 A   Okay.  22 MR. MACKENZIE:  I'm sorry.  I beg your pardon.  I'm showing it  23 to the judge.  To his lordship.  24 THE COURT:  I have it.  25 MR. MACKENZIE:  26 Q   Do you see that name, Mr. Mitchell?  27 A   Taa taat nee.  Yes, I see.  28 Q   That's Blunt Mountain, isn't it, Mr. Mitchell?  29 A   No.  If it's Taa teet neen it's not that one.  30 Q   Okay.  So you disagree with that map, don't you, Mr.  31 Mitchell?  You don't think that's correct, that  32 mountain name?  33 A   This one here maybe that's the name for this mountain,  34 but that's Taa teet neen.  That's not Taa teet neen.  35 Q   That's where Blunt Mountain is, isn't it?  36 MR. RUSH:  He's saying that name there is not the Hat eet nen  37 name he has given before.  38 MR. MACKENZIE:  I understand what he's saying.  39 Q   Would you agree that's the name for Blunt Mountain on  40 that location on Wah tah k'eght that we just referred  41 to?  42 A   I don't know.  It's outside our territory so I don't  43 know too much about this mountain what they call that.  44 That's way up north.  45 Q   Okay.  Well, let's take a look at this map in a little  46 more detail then, and look at your map Exhibit 211 and  47 we'll compare them.  Referring now to Exhibit 84 and A  Q  A  3551  Exhibit 211.  Now, you see on the northern boundary on  your map Exhibit 211 where the mountain Tsin teel is?  Tsin teel, yes.  It's in a different place on Exhibit 84, isn't it?  Right here where Tsin teel is.  MR. MACKENZIE:  Okay.  We'll show the judge — his lordship  where it is on this map.  THE COURT:  I've got it.  MR. MACKENZIE:  Oh, yes, my lord.  Can your lordship see on  Exhibit 84 that's a different location?  A   That's different location.  MACKENZIE:  Just before we go on we'll give his lordship --  does your lordship have that location on Exhibit 84?  COURT:  Yes.  MACKENZIE:  And on Exhibit 211?  COURT:  Yes.  MACKENZIE:  Yes, my lord.  Q   Okay.  Now, Mr. Mitchell, you disagree with Exhibit  84, don't you?  And that's this big map.  You say that  is wrong?  That's the wrong place.  Okay.  He pointed to Tsin teel is in the wrong place, my  lord.  Yes.  I don't know if he's saying Tsin teel is in  the wrong place --  I think he's saying the name.  -- Or the boundary in relation to that name is  wrong, or it may be that the name is right but it  belongs somewhere else.  Tsin teel is this one here.  MACKENZIE:  Q   And looking up at that lake in the northern part of  the territory do you see the name of that lake Mus Dul  Muhs?  I'm looking at Exhibit 84.  TRANSLATOR:  Excuse me.  MACKENZIE:  Do you need the spelling for that?  TRANSLATOR:  I don't know what you're talking about.  A   That little lake called Lots' wenii.  MACKENZIE:  Yes.  Now, my lord, do you see the lake I  referred to on Exhibit 84 in the northern part of the  territory?  COURT:  Yes.  44 MR. MACKENZIE:  Yes.  Well, my lord, comparing that to Exhibit  45 211.  46 Q   On your map Exhibit 211 you call that Lots' wenii,  47 don't you?  1  2  3  4  5  6  7  8  9  10  11  12 MR.  13  14 THE  15 MR.  16 THE  17 MR.  18  19  20  21  22  2 3 MR.  24  25 THE  26  2 7 MR.  2 8 THE  29  30  31  32 MR.  33  34  35  36 THE  37 MR.  38 THE  39  4 0 MR.  41  42  43  A  Q  RUSH:  COURT:  RUSH:  COURT:  A  THE 3552  1 A   Yes.  That's Lots' wenii.  2 MR. MACKENZIE:  We'll get the spellings on those.  Just hang on.  3 THE TRANSLATOR:  What was the spelling of the first one?  4 MR. MACKENZIE:  Have that, my lord?  5 THE COURT:  L-O-T-S W-E-N-I-I.  6 MR. MACKENZIE:  7 Q   So you don't agree with Exhibit 184 where it shows --  8 THE COURT:  You mean 84?  9 MR. MACKENZIE:  Exhibit 84, yes.  Sorry, my lord.  10 Q   You disagree with Exhibit 84 where it shows the names  11 Tsin teel and Mus Dul Muhs in the northern part of the  12 territory, correct?  13 A   I know that lake is Lots' wenii.  14 MR. MACKENZIE:  We'll get some spellings, please.  15 THE TRANSLATOR:  It's Mesdzii del mooh.  16 MR. MACKENZIE:  I'm just reading it from the map, Mr. Mitchell.  17 MR. RUSH:  All right.  You may not be pronouncing it correctly.  18 MR. MACKENZIE:  Yes.  Thank you.  19 THE TRANSLATOR:  244.  20 MR. MACKENZIE:  Thank you.  That's number 244.  21 Q   So your map, Exhibit 211, is different from Mr. Henry  22 Alfred's map, isn't it?  Henry Alfred's map is Exhibit  23 84.  24 A   On this all — all Henry Alfred's, eh?  25 Q   Yes.  Referring to Exhibit 84.  26 A  All I can recognize is K'aaz kwe.  27 Q   Now, you're referring to --  2 8       A   K'aaz kwe.  29 Q   You're referring to the river flowing into the Bulkley  30 River?  31 A   Yes.  32 MR. RUSH:  Spelled G-A-Z, new word, K-W-U-H on the map.  33 MR. MACKENZIE:  Fine.  Thank you.  I'm finished with that.  34 A  And another creek here is Kwun kwe we call it.  Kwun  35 Creek and --  36 MR. MACKENZIE:  Thank you.  Get a spelling on that, please.  37 THE TRANSLATOR:  K-W-U-N K-W-E.  38 MR. MACKENZIE:  And the witness is referring to the creek which  39 is shown on Exhibit 211 as K-W-U-N Creek.  He referred  40 to that location on Exhibit 84.  Thank you, very much,  41 Mr. Mitchell.  Now, my lord, Exhibit 84 was a map -- a  42 draft map attached to the interrogatories of Mr. Henry  4 3           Alfred.  4 4 THE COURT:  Yes.  45 MR. MACKENZIE:  46 Q   Now, Mr. Mitchell, Henry Alfred is Wah tah k'eght,  47 isn't he? 3553  1 A   Yes.  2 Q   And he knows his boundaries, doesn't he?  3 A   Yes.  4 Q   And he knows his territory, doesn't he?  5 A   Yes, he knows his own territory, yes.  6 Q   Yes.  7 MR. RUSH:  It may be clear for the record, but Exhibit 84 was  8 attached to the interrogatory of Mr. Alfred that was  9 subsequently --  10 THE COURT:  Corrected.  11 MR. MACKENZIE:  12 Q   So, Mr. Mitchell, you went trapping in this Blunt  13 Creek territory about four times with Mr. Sylvester  14 Williams, didn't you?  15 A   Yes.  16 Q   And the last time you were up there trapping was over  17 20 years ago, wasn't it?  18 A   I've been late sixties on there.  Yes.  19 Q   I beg your pardon?  20 A   Yes.  21 Q   Sylvester Williams didn't trap there after his  22 accident in 1969, did he?  23 A   He probably went over, but I didn't go with him after  24 that.  25 Q   Okay.  And when you went trapping with Sylvester  26 Williams you followed the trapline which is shown on  27 Exhibit 211, didn't you?  28 A   Yes.  That's when before this access road was put in.  29 MR. MACKENZIE:  Now, referring to — just hang on a minute,  30 please.  Referring to Exhibit 211 Mr. Mitchell  31 referred to the maroon line on Exhibit 211 with the  32 word marten, M-A-R-T, should be E-N, and then he was  33 referring to the access road on exhibit -- the western  34 part of Exhibit 211 to which reference has been made  35 several times.  My lord, did you have that reference?  36 THE COURT:  Is that the one alongside the creek marked K'aaz kwe  37 on this map?  38 MR. MACKENZIE:  North beside the creek — I'm sorry, my lord.  39 You mean the English map, the English name underneath?  4 0 THE COURT:  No.  I mean the one that's on the southern boundary  41 of what should be Caspit territory.  42 MR. MACKENZIE:  Yes, my lord.  The witness is referring to the  43 trapline that went north of that and Miss Mandell put  44 that —  45 THE COURT:  Oh, yes.  46 MR. MACKENZIE:  47 Q   Goes right up to the creek, doesn't it, Mr. Mitchell? 3554  1 A   Yes.  Up to that creek.  2 Q   Referring to Exhibit 211.  Now, when you were on that  3 trip you went as far as the forks there where Miss  4 Mandell has written the letter D, didn't you?  5 A   Yes.  That's our main camp.  6 Q   That was your main camp.  And you didn't go beyond  7 that to the east?  8 A   I went down little ways with him.  He said it's not  9 too far from here to the boundary.  That's all I know.  10 Q   Yeah.  So that's point D you're speaking about.  11 MR. RUSH:  Then he pointed about a finger's width from the D  12 point to the west along that river.  13 THE COURT:  Let me see where he has the D point, please.  14 MR. MACKENZIE:  D is right at the forks where Miss Mandell put  15 the D.  16 THE COURT:  Yes.  Thank you.  17 MR. MACKENZIE:  18 Q   And you did some goat hunting also on the western  19 boundary in the 1960's, didn't you, Mr. Mitchell?  20 A   Yes.  Up a Hat eet nen.  21 Q   Up near Mount Seaton?  22 A   Yes.  23 MR. MACKENZIE:  Do you need a spelling for that?  24 THE TRANSLATOR:  582.  25 MR. MACKENZIE:  26 Q   Now, were you in the territory -- and you drove in the  27 territory last year on the access road, didn't you?  28 A   Yeah.  I drove through there lots of time, yeah.  29 Q   That's the western part of the territory where the  30 access road is to Kwun Creek?  31 A   This access road, yeah.  32 Q   That's where you were logging in 1968, right?  33 A   '65 we were logging through here.  34 Q   Yes.  Now, after you went to the trapping -- when you  35 went to trap with Sylvester did you go back into the  36 centre of the territory?  37 A  After this forestry access road went in I -- we went  38 in there.  From there it's easier to go in from this  39 where we were trapping, eh.  40 Q   Yes.  You're referring to the forestry access road  41 again and the extension of that road, isn't that  42 right, up around Mount Seaton?  43 A   Yes.  44 Q   Now, you use the forestry access roads quite a lot,  45 don't you, Mr. Mitchell?  46 A   I drive around there lots.  47 Q   You have a pick-up truck, don't you? 3555  1 A Yes.  2 Q And that's when you take your hunting trips these days  3 you go along the forestry access roads, don't you?  4 A I drive around there lot of times.  5 Q Now, when you went in trapping with Mr. Sylvester  6 Williams in the 1960's, correct?  7 A Yes.  8 Q You didn't ask for permission from Caspit, did you?  9 A Sylvester Williams was Caspit's grandson.  He invited  10 me in.  11 Q Sylvester Williams invited you, didn't he?  12 A Yes.  13 Q But you didn't speak to Stanley Morris?  14 A At that time Stanley Morris was too young.  15 Q At that time who was Caspit?  16 A Sylvester Williams' grandfather.  17 Q He was dead at that time?  18 A Yes.  At that time, yes.  19 Q And when you went in trapping with Sylvester who was  20 Caspit?  21 A Oh, I believe Jimmy Thomas was Caspit at the time and  22 they had some kind of agreement and probably he  23 invited me along.  24 Q Sylvester invited you along, didn't he?  25 A Yes.  26 Q You don't know about any agreement, do you?  27 A No.  28 Q Now, when you went trapping with Sylvester Williams  29 you did not ask Goohlaht for permission, did you?  30 A No.  Like I said, Sylvester invited me.  That's all I  31 know.  32 Q Now, you've testified today that the government  33 registered the territory, and you testified last week  34 the government registered the territory to Sylvester  35 Williams, didn't you?  36 A Yeah, through the government Sylvester has registered,  37 yes.  38 Q Sylvester Williams was the holder of a registered  39 trapline in that territory, wasn't he?  4 0 A At the time I went out with him, yes.  41 THE COURT:  That's on Caspit's territory?  42 MR. MACKENZIE:  Yes, my lord.  43 Q And are you aware that Sylvester registered his  44 trapline or became the registered owner in 1936?  45 A No.  I didn't know that, no.  46 MR. MACKENZIE:  Now, referring to tab 4 in the blue binder.  My  47 lord, this is an enlargement of Crown Exhibit 24A 3556  1 depicting registered traplines, and it appears at tab  2 4 of the blue binder.  3 Q   See the area with the pink boundary there, Mr.  4 Mitchell?  5 A   Oh, yes.  6 Q   That's trapline 06082027 which is registered to Mr.  7 Sylvester Williams.  Now, would those be the  8 boundaries of Sylvester Williams' trapline territories  9 to your knowledge?  10 A   No.  His trapping territory of course I notice this  11 little lake Lots' wenii.  12 MR. MACKENZIE:  Get the spelling on that, please.  13 Q   You're referring to the lake just in the northern part  14 of that trapline area and circled in red.  15 THE TRANSLATOR:  L-O-T-S-' W-E-N-I-I.  16 MR. MACKENZIE:  That also appears on Exhibit 211.  17 THE COURT:  Is that just left to the number 69?  Two 69's.  18 MR. MACKENZIE:  No, my lord, it's right at the very top — I'm  19 showing your lordship where it is.  Right at the very  20 top of the -- just under the northern boundary of that  21 trapline.  22 THE COURT:  Yes.  23 MR. MACKENZIE:  It's quite indistinct, my lord, on this Exhibit  24 24A excerpt.  25 THE COURT:  There's a grid line running through the middle of  26 the property.  Just to the left of the grid line?  27 MR. MACKENZIE:  Yes, my lord.  28 THE COURT:  And just south of the northern grid line.  29 MR. MACKENZIE:  Yes, my lord.  That appears on Exhibit 211, my  30 lord, at the same location.  31 THE COURT:  What is the name of it?  32 MR. MACKENZIE:  And in English the name is Touhy Lake,  33 T-O-U-H-Y, but in Wet'suwet'en the name is on Exhibit  34 211, and the witness pronounces it Lots' wenii.  35 THE COURT:  And how did you spell it, Mr. Mitchell.  36 THE TRANSLATOR:  L-O-T-S-' W-E-N-I-I.  37 THE COURT:  Yes.  Thank you.  38 MR. MACKENZIE:  And, my lord, the witness referred to that in  39 order to orient himself, as I understood it, and  40 recognised the area.  And now the witness is referring  41 to the main -- the main water --  42 A   Creek.  43 MR. MACKENZIE:  — Course, the creek going through the centre of  44 that territory which is outlined in red, and that is  45 shown in this Exhibit 24A enlargement as Blunt Creek.  46 Does your lordship have that?  4 7 THE COURT:  Yes. 3557  1 MR. MACKENZIE:  2 Q   Now —  3 A   X'aaz kwe that's called.  4 MR. MACKENZIE:  Yes, my lord, the witness has referred to the  5 water course indicated as Blunt Creek on this Exhibit  6 24A enlargement and he's using the word that appears  7 on Exhibit 211 in reference to that Blunt Creek.  8 THE COURT:  Yes.  X-A-A-Z K-W-E.  9 MR. MACKENZIE:  Yes, my lord.  My lord, I'm going to direct the  10 witness to some features on this document Exhibit 24A.  11 My lord, it may be useful to mark this as an exhibit.  12 It is an enlargement of a document already marked as  13 an exhibit.  14 MR. RUSH:  For identification.  15 MR. MACKENZIE:  But for identification.  Yes, for  16 identification.  But it may be useful to mark it for  17 reference during this examination if that would be  18 convenient for your lordship.  19 MR. RUSH:  The problem is he hasn't identified this as a map  2 0 that he knows.  21 THE COURT:  No, he hasn't.  22 MR. MACKENZIE:  Well, fine.  We'll carry on with this.  23 Q   And you've said that you -- that this area encircled  24 in red is the area where Sylvester Williams was  25 trapping, do you agree with that?  26 A   Yeah.  He showed me the mountains peaks over here.  27 Q   Referring to the southeastern part of the -- of  28 that —  29 A   Called Soon Dzel.  30 MR. MACKENZIE:  Can we have a spelling on that, please?  The  31 witness referred to a position just north of Harold  32 Price Creek in the southeastern portion of this area  33 encircled in red, my lord.  34 THE TRANSLATOR:  It's 5 —  35 MR. MACKENZIE:  Pardon?  36 THE TRANSLATOR:  572.  37 MR. MACKENZIE:  Yes.  I'm going to put the letter A at that  38 point that the witness referred to.  It's on a dotted  39 line that proceeds north of Harold Price Creek in the  40 southeastern part of this territory encircled in pink  41 on this exhibit.  42 Q   Now, looking at this Exhibit 24A, Mr. Mitchell, can  43 you see that the northern boundary goes up to a point  44 called Blunt Mountain?  See that?  45 A   Yes.  46 Q   Yes.  And looking down further at the southwestern  47 boundary can you see that the southern boundary is 3558  1 north of K'aaz kwe Creek?  See that it's north of that  2 creek, isn't it?  3 A   K'aaz kwe, yes.  North.  4 Q   Thank you.  Looking over to the southwest --  5 correction southeast, can you see that the red line  6 extends southeast of Harold Price Creek?  7 A   Yes.  8 Q   Yes.  It goes down into the Debenture Creek drainage,  9 doesn't it?  See that?  10 A   No, I never been that far.  I don't know that place,  11 no.  12 Q   Fine.  But you know the Harold Price area, don't you?  13 A   Yes.  On this area, yes.  Upper part too.  14 Q   Sorry.  Referring to Harold Price flowing into the --  15 A   Sus kwe.  16 Q   Into the Sus kwe as the witness calls it in  17 Wet'suwet'en.  18 THE COURT:  Well, there's a north and south Harold Price, isn't  19 there?  20 MR. MACKENZIE:  Well, Harold Price Creek, my lord, flows from  21 the mountains in the centre of this yellow territory,  22 it flows northeast and then turns the corner and flows  23 north and northwest up into -- way up into Smogelgem's  24 territory and joins the Sus kwe River way up north.  25 THE COURT:  All right.  It's all one creek.  26 MR. MACKENZIE:  Yes.  27 Q   Although you call -- what you call the river the Sus  2 8 kwe River, don't you?  2 9       A   Sus kwe.  30 MR. MACKENZIE:  Yes.  I'm speaking, of course, talking about  31 English maps when I gave you that description, my  32 lord.  33 THE COURT:  All right.  34 MR. MACKENZIE:  35 Q   Now, I'm going to ask you to look at Exhibit 211  36 keeping this map -- this trapline map in front of you,  37 and if we could find Exhibit 211.  I have it right  38 here.  39 MR. RUSH:  Maybe we should orient the other map on a north south  40 access.  41 MR. MACKENZIE:  Mr. Rush has just oriented the trapline map on a  42 north south access, as the Exhibit 211 is on a north  43 south access.  44 THE COURT:  I gather this map is north at the top?  45 MR. MACKENZIE:  Both maps north is at the top, my lord.  If your  46 lordship looks down your lordship will see Smithers  47 and the Bulkley River, Moricetown.  I'm looking at the 3559  1 trapline map, my lord.  2 THE COURT:  Yes.  3 MR. MACKENZIE:  So we're looking at both maps north is up, which  4 is an unusual situation, my lord.  5 THE COURT:  Yes.  6 MR. MACKENZIE:  I just want to point out that on Exhibit 211 we  7 look at the northern part first.  8 Q   On Exhibit 211 the boundary coming along the northwest  9 does not go as far as the mountain known as Blunt  10 Mountain on this map Exhibit 211, does it?  11 A   No, it goes as far Tsin teel.  12 Q   Yes.  The witness was referring to Exhibit 211 and  13 pointing out that the northern boundary turns down.  14 There's a northern point that it turns down, doesn't  15 it, to Tsin teel?  16 A   Turns Tsin teel, yes.  17 Q   And that's different from -- from the trapline map,  18 isn't it, Mr. Mitchell?  The trapline map the  19 boundary, the south -- the northwestern boundary  20 continues right up to Blunt Mountain and then heads  21 southeast, doesn't it?  22 A   Yes, according to this one.  23 Q   Yes, referring to the trapline map.  Now, referring to  24 the southeastern boundary Exhibit 211 -- on Exhibit  25 211 the external boundary and the Caspit territory  26 comes north of Harold Price Creek, doesn't it?  You  27 agree with that, and on Exhibit 211?  28 A   Yes.  29 MR. MACKENZIE:  Yes.  See that, my lord?  3 0 THE COURT:  Yes.  31 MR. MACKENZIE:  Has your lordship got that on Exhibit 211?  32 THE COURT:  Yes.  33 MR. MACKENZIE:  34 Q   On the trapline map you see that, Mr. Mitchell, the  35 trapline boundary goes some distance south of Harold  36 Price Creek, doesn't it?  See that?  37 A   This one here, yes.  38 Q   Referring to the trapline map.  Yeah.  And looking at  39 Exhibit 211, that boundary we just referred to, that's  40 an external boundary, isn't it?  Do you understand  41 that external boundary of the land claim area on  42 Exhibit 211?  Who are the people who own the  43 property   the land to the --  44 MR. RUSH:  Wait.  Wait.  45 MR. MACKENZIE:  I beg your pardon.  46 MR. RUSH:  Maybe just do the questions in turn.  47 MR. MACKENZIE:  Yes.  I'm sorry. 3560  1 Q   You see this boundary north of Harold Price Creek in  2 the southeastern part of the territory, Mr. Mitchell?  3 I'm referring to that boundary.  4 A   No.  That's on the map Wet'suwet'en territory, Carrier  5 Sekani territory.  6 Q   You're referring -- you say Carrier Sekani territory  7 is on the east, is that right?  8 A   On the east side.  9 Q   And the witness was referring to the boundary on  10 Exhibit 211.  Now, moving over to the southwestern  11 boundary on Exhibit 211, you'll see that on Exhibit  12 211 the boundary comes along K'aaz kwe Creek, doesn't  13 it?  14 A   K'aaz kwe, yes.  15 Q   On the trapline map the boundary is north of K'aaz kwe  16 Creek, isn't it?  17 A   Yeah, it is north.  18 Q   You're looking at Exhibit 211.  The trapline that you  19 followed is north of K'aaz kwe Creek, isn't it?  20 A   Yes.  That's north of K'aaz kwe Creek.  21 MR. MACKENZIE:  Now, is your lordship clear enough there?  22 Q   Now, Mr. Mitchell, to your knowledge -- yes, I think  23 that we finished with that map which is Exhibit 24A  24 for Identification, and it's at tab 4.  25  26 To your knowledge, referring to Sylvester  27 Williams, did he trap throughout his trapping  28 territory?  29 A  What's that again?  30 Q   Did Sylvester Williams trap throughout his trapping  31 territory?  32 A   In this area?  33 Q   You're referring to Exhibit 211 to the Blunt Creek  34 area.  35 A   Yeah, he's trapped there.  36 Q   He's trapped everywhere in that area?  37 A   Yeah, that's what he said, because he trapped there  38 with his grandfather all the time since he was a boy.  39 THE COURT:  I don't know if that means he trapped throughout the  40 area that we have been talking about as Caspit's  41 territory or he trapped throughout the area that was  42 described as between Blunt Mountain and Blunt Creek.  43 MR. RUSH:  He had the Exhibit 211 in front of him and nothing  44 else when he gave the last answer.  45 THE COURT:  All right.  So are counsel agreed that he's talking  46 more or less the area claimed by the plaintiffs as  47 being Caspit's territory? 3561  1 MR. RUSH:  Yes, that's true.  2 THE COURT:  All right.  3 THE REGISTRAR:  Was that marked as an ID exhibit, my lord?  4 THE COURT:  No.  5 THE REGISTRAR:  Thank you.  6 THE COURT:  I'll be making an accurate note if I say that  7 Sylvester Williams trapped throughout the territory  8 claimed as Caspit's territory?  9 MR. RUSH:  That was my understanding of the evidence.  10 MR. MACKENZIE:  11 Q   Did Sylvester Williams trap throughout the territory  12 shown as the registered traplines on Exhibit 24A, the  13 area encircled in red?  14 A  All we did was went to him for beaver trapping.  I  15 don't what his marten trapping -- his trap there.  He  16 said he had a cabin down in here, a lean-to.  17 Q   And you're referring to the lake at the top of the  18 map, north of the map?  19 MR. RUSH:  No.  He's referring —  20 MR. MACKENZIE:  I'm sorry.  21 A   Right where this -- that's where he had his lean-to,  22 where cut through that creek here.  23 MR. MACKENZIE:  The witness was referring to Exhibit 211, and he  24 referred to the trapline which was drawn on Exhibit  25 211 and the point where it intersects with Blunt  26 Creek.  27 Q   And he had a lean-to there, is that correct?  28 A   Yes.  29 Q   Yes, that's right.  So you don't really know where --  30 personally you didn't trap with him in any other parts  31 of the territory, did you?  32 A   No.  Not for marten.  Just for beaver.  33 MR. MACKENZIE:  Moving on to a different subject.  34 THE COURT:  Well, I think if you are we'll take the afternoon  35 break.  36 MR. MACKENZIE:  Thank you, my lord.  37 THE COURT:  Thank you.  38 THE REGISTRAR:  Order in court.  Court will stand for a recess.  39  40  41  42  43  44  45  46  4 7 (PROCEEDINGS ADJOURNED) 3562  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  9 Peri McHale, Official Reporter  10 UNITED REPORTING SERVICE LTD.  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 3563  1 (PROCEEDINGS RESUMED AT 3:20 P.M.)  2 CROSS-EXAMINATION BY MR. MACKENZIE:   (Continued)  3 THE COURT:  Mr. Mackenzie?  4 MR. MACKENZIE:  Thank you, my lord.  5 Q   Now, referring you to exhibit 107.  6 THE COURT:  Exhibit 107?  7 MR. MACKENZIE:  I am going to take my copy of Exhibit 107 over  8 to the witness because his lordship doesn't have one.  9 THE COURT:  I think I did have one of these at one time.  10 MR. MACKENZIE:  11 Q   Now, Sylvester Williams, you said, was in the Laksilyu  12 Clan, correct?  13 A   Yes.  14 Q   And Wah tah K'egh, Henry Alfred, is Laksilyu also,  15 isn't he?  16 A   Yes.  17 THE COURT:  You will have to refresh my memory, is Laksilyu Frog  18 or Small Frog.  19 MR. MACKENZIE:  Laksilyu is Small Frog.  20 Q   And Lucy Namox is Goohlaht, isn't she?  21 A   Yes.  22 Q   And her house is Gilseyhu, isn't it?  23 A   Gilseyhu.  24 Q   Her clan.  Sorry.  25 A   Yes.  26 Q   That's the Frog Clan, my lord.  27 Have we got those?  28 THE TRANSLATOR:  132.  29 MR. MACKENZIE:  30 Q   And Leonard George is Smogelgem, isn't he?  31 A   Yes.  32 Q   And his clan is Laksamshu?  33 A   Yes.  34 Q   And that's Fireweed, isn't it?  35 A   Yes.  36 Q   That's your clan, isn't it?  37 A  My clan.  38 Q   Now, referring to Exhibit 107, this light green colour  39 is the Small Frog or Laksilyu Clan, and you can see  40 that it goes up north of Smithers, you see that you  41 see Smithers on that map?  42 A   Yes.  43 Q   It goes right up to the beginning of the Gitksan  44 territory, doesn't it?  You see that?  45 A   Yes.  46 Q   And you see that Leonard George, Laksamshu, Fireweed  47 Clan, appears just above that light green colour? 3564  1 A   Yes.  2 Q   Now, that boundary between Laksilyu and Fireweed,  3 right there, northeast of Smithers, is similar to the  4 boundary on your Exhibit 211, isn't it?  See how it  5 goes up and down and over?  Talking about the boundary  6 between the light green and the maroon, that is Small  7 Frog, Laksilyu, and Laksamshu, Fireweed, northeast of  8 Smithers?  9 My lord, do you have that boundary.  10 THE COURT:  Yes.  11 MR. MACKENZIE:  12 Q   So, I take it, you see that, see what I am referring  13 to on Exhibit 107?  14 A   Yes, I see.  15 Q   Yes.  But there is no appearance of the --  16 A   I can't tell where -- which creek is this?  I can't  17 tell.  18 Q   All right.  Now referring to -- finished with that, my  19 lord.  20 Referring to tab 8 of the blue book.  Now tab 8 of  21 this blue binder is an excerpt from trial Exhibit 101.  22 And that's the Carrier Sekani overlap map, tab 8 of  23 the blue binder.  24 Now, we spoke of the Carrier Sekani overlap map  25 this morning, Mr. Mitchell, and I am going to refer  26 you now to this excerpt from Exhibit 101 at tab 8, you  27 see the Wah Tah K'eght territory in the middle of that  28 Exhibit 101?  29 A   Yes.  30 Q   Now, that Carrier Sekani overlap map was prepared for  31 the Wet'suwet'en hereditary chiefs, wasn't it, at the  32 all-clans feast?  33 A   I didn't see this kind of map there, no.  34 Q   You remember, you said, you said this morning you were  35 at the all-clans feast in April, 1986; is that  36 correct?  37 A   The one I seen this morning, that map, like I said,  38 the eastern boundary is Carrier Sekani and the western  39 Wet'suwet'en.  4 0 Q   That's right.  That's correct.  And that map was  41 prepared for the Wet'suwet'en hereditary chiefs,  42 wasn't it?  43 A   Yes.  44 Q   Now, looking at Exhibit 101, you will see there is no  45 mention of Caspit, right?  4 6 A   No.  47 Q   That's correct.  And there is no mention of Goohlaht, 3565  1 is there?  2 A   No.  3 Q   And Wah tah K'egh territory goes right up north of  4 that little lake that you have mentioned, isn't it?  5 A   Yes, according to this, yes, according to this map.  6 Q   According to Exhibit 101.  Now, that little lake  7 appears on Exhibit 211 and you called it Lots' wenii,  8 didn't you?  9 A   Lots' wenii.  10 THE COURT:  We had that a moment ago.  L, underlined, o-t-s',  11 w-e-n-i-i.  12 MR. MACKENZIE:  Thank you, my lord.  13 Q   And, you have testified that the area to the east is  14 Carrier Sekani, correct?  15 A   Yes.  16 Q   That's the area to the east of this heavy black line,  17 correct?  18 A   Yes.  19 Q   You see that heavy black line?  20 A   Yes, yes.  I was just trying to find out where we are  21 at here.  22 Q   You see Chapman Lake there?  23 MR. RUSH:  Maybe the witness should be given either the whole  24 thing or a reference to Exhibit 11, or 211.  25 MR. MACKENZIE:  Well, the witness can see Morricetown in the  26 centre of the map there, Exhibit 101.  27 Q   You see Morricetown there, Mr. Mitchell?  28 A   Yes.  29 MR. RUSH:  If you need to refer yourself, Mr. Mitchell, just  30 have a look.  31 A   If I can find this Soon Dzel on this map here.  32 Q   Well, there is a name Soon Dzel, that's on the  33 northern boundary?  34 A   No, that's incorrect.  35 Q   That's incorrect, according to you?  36 A   Yes.  37 MR. MACKENZIE:  We need a spelling for that, please.  38 THE TRANSLATOR:  572.  39 MR. MACKENZIE:  Does your lordship have the point on the  40 northern boundary that the witness is referring to?  41 THE COURT:  The northern boundary of Wah tah K'eght?  42 MR. MACKENZIE:  Yes, my lord.  And the witness is referring to  43 that name and he says that's incorrect, it's spelled  44 S-o-e-n, d-z-e-1-t-h, do you have that, my lord?  4 5 THE COURT:  Yes.  46 MR. MACKENZIE:  47 Q   So, is it fair to say that you disagree with this map 1  2  A  3  4  Q  5  6  A  7  Q  8  9  10  A  11  Q  12  13  A  14  Q  15  16  17  18  19  20  A  21  Q  22  23  24  A  25  Q  26  27  A  28  Q  29  30  A  31  Q  32  33  A  34  Q  35  36  37  A  38  Q  39  40  A  41  Q  42  43  44  A  45  46  Q  47  A  3566  we have just been looking at, Exhibit 101?  I disagree with this mountain, got it in the wrong  place.  Soon Dzel would be right there.  The witness is referring to another location for that  mountain, to which we just referred.  That's the boundary there.  You say also there should be another territory in  here, don't you, Sylvester Williams' territory, isn't  that right?  Sylvester Williams, yes.  You are pointing to the northern part of Wah tah  K'eght's territory; is that correct?  Yes.  And that's on Exhibit 101.   Now, one more reference,  Mr. Mitchell, and that's at tab 5 of this blue binder,  and this is an excerpt from trial Exhibit 5, external  boundaries of the Gitksan-Wet'suwet'en, and you see  the name Wah tah K'eght in the centre of that exhibit,  Exhibit 5?  Yes.  And can you read on this map this -- just north of the  northern boundary of Wah tah K'eght the words Blunt  Mountain?  Yes, I see Blunt Mountain.  There is no mention of Caspit on this map, Exhibit 5,  is there?  No.  There is no mention of Goohlaht on that map, Exhibit  5, is there?  No.  And Sylvester Williams' territory doesn't appear  anywhere on this map, does it, the boundary?  No.  Thank you.  Now, you agreed with me this morning, and  last week, that the hereditary chiefs, Wet'suwet'en  hereditary chiefs, know their boundaries, don't you?  Whose boundary?  The Wet'suwet'en hereditary chiefs know their  boundaries, don't they?  Yes, they should know their boundaries, yes.  Now, referring to your Exhibit 211, you didn't have an  opportunity to walk along the boundary of that  territory, did you?  No, not in this Sus Kwe area.  I worked there the last  couple of years ago, as a faller, in this area here.  Referring to the eastern part of the territory?  I worked there from the Chapman Lake area.  We would 3567  1 come in from Chapman Lake.  2 Q And the logging companies logged along that area?  3 A Yes.  4 Q There was no mention of the -- the logging companies  5 didn't seek permission from Caspit, did they?  6 A That I wouldn't know.  PIR got the timber licence in  7 there.  8 Q Referring to Pacific Inland Resources, correct?  9 A Yes.  10 Q So, your principal knowledge is about the Goosley Lake  11 territory, isn't it?  You know most about that  12 territory, don't you?  13 A Do I know all the territory?  14 Q Yes, you know the Goosley Lake territory?  15 A Yes.  16 Q You didn't grow up in the Blunt Creek territory, did  17 you?  18 A No, I just went there about four times, that's all.  19 Q So someone gave you this map, didn't they, Marvin  20 George showed you this map, didn't he, Exhibit 211?  21 A Yes.  22 Q And Marvin told you that this map was the territory  23 boundaries, didn't he?  24 A On this map here.  25 Q Referring to Exhibit 211.  26 A Yes.  27 Q Marvin told you that the boundaries on Exhibit 211  28 were the territory boundaries, didn't he?  29 A Marvin told me and Sylvester told me this peak here,  30 Q Referring to Soon Dzel?  31 A He told me about this peak.  32 Q Sylvester told you about Soon Dzel, didn't he?  33 A Yes.  34 Q That's right.  And did Sylvester mention anything else  35 to you?  36 A And this Lots' wenii.  37 Q You are referring to -- we will get the spelling of  38 that.  Just hang on.  I think we have had the  39 spelling.  But Sylvester referred to that lake on the  40 northern part, didn't he?  41 A Yes.  42 Q And Sylvester also told you that the boundary was at  43 Blunt Mountain, didn't he?  44 A Blunt Mountain, yes.  45 MR. RUSH: Pointing to Hat eet nen.  46 A Hat eet nen.  47 MR. MACKENZIE: 3568  1 Q   Has Sylvester never told you that the boundary was  2 along the K'aaz Kwe, did he?  3 A   He told me this K'aaz Kwe towards Henry Alfred's  4 boundary, this one here.  5 Q   Sorry.  6 A   That's when we walked through his trapline to this.  7 Q   Following along the trapline shown on Exhibit 211?  8 A   To the creek.  9 MR. RUSH:  When you asked him about K'aaz Kwe he pointed to the  10 river on the map.  11 MR. MACKENZIE:  12 Q   The trapline was north of that creek, wasn't it, K'aaz  13 Kwe creek?  14 A   North of K'aaz Kwe, yes.  15 THE COURT:  That's the river that flows into the Bulkley, just  16 north of Moricetown?  17 A   Bulkley River, yes.  18 THE COURT:  Thank you.  19 MR. MACKENZIE:  I have finished with that line of questioning,  2 0 my lord.  21 Q   Now, looking at the photograph at -- in the photograph  22 book at tab 33, my lord, I am going to place my copy  23 before the witness.  24 THE REGISTRAR:  I have it here.  25 MR. MACKENZIE:  26 Q   I have a photograph in my book as opposed to a  27 photocopy.  Now, looking at that photograph at tab 33,  28 can you identify that place, Mr. Mitchell?  29 A   If the mountain was clearer, I might have identified  30 it.  31 THE COURT:  Well, suggest to him what it is and maybe he will  32 agree.  33 MR. MACKENZIE:  34 Q   I am instructed this is looking over towards Mount  35 Seaton, does that look familiar to you?  36 A   I still couldn't place this, no.  37 Q   Okay.  Thank you.  Looking at the photograph in tab  38 32, can you identify that?  I am instructed that's  39 Goat Mountain, which is your Soon Dzel?  Need a  40 spelling for that.  That's looking from the north, do  41 you recognize that?  42 A   Looking towards north?  43 Q   No, looking from the north, I am instructed.  44 A   That would be Wah tah K'eght's territory.  This one  45 here would be right across Smithers.  46 Q   Referring to the small peak on the left of that  47 mountain.  Correction, the right of that mountain. 3569  1 THE COURT:  Do you recognize that mountain?  2 A   Yes, I recognize this.  3 THE COURT:  That's Soon Dzel?  4 A   I don't know the name of that mountain though.  5 MR. MACKENZIE:  The witness doesn't recognize it, my lord.  6 THE COURT:  All right.  7 MR. MACKENZIE:  8 Q   Is it S-o-o-m, t-s-e-1, or --  9 THE TRANSLATOR:  S-o-o-n, D-z-e-1, underlined.  10 MR. MACKENZIE:  11 Q   Now referring to tab 1, tab 1 in the blue book,  12 please.  Do you recognize this map as the map of the  13 Blunt Creek area?  14 A   Yes, I recognize this Lots' wenii ts'anlii.  15 Q   Referring to the Touhy Lake at the top of that map  16 from tab 1 of the blue binder.  17 Now, I am instructed that these areas are the areas  18 in that territory where there has been logging.  Can  19 you identify some of them?  I think you have referred  20 to some of the areas in your testimony, start at the  21 western side of the territory and there is a very  22 large area, large, almost rectangular area in the left  23 western part of the territory; do you recognize that  24 as an area that's been logged?  25 A   Yes, I recognize this.  2 6       Q   I am going to mark a big orange A on that one.  And do  27 you also recognize the route of the Kwun Creek Blunt  28 forest road, going up through that big rectangular  29 area and over?  30 A   This one here goes -- forestry road goes as far as  31 here.  32 THE COURT:  Talking about a north-south line halfway near the  33 bottom of the rectangle and branching to the top?  34 MR. MACKENZIE:  Yes.  I have marked the rectangle as a large  A  35 on this map.  Does your lordship have that?  3 6 THE COURT:  Yes.  37 MR. MACKENZIE:  38 Q   I will just put an orange marker along the forest  39 access road, which the witness has pointed out; is  40 that right, Mr. Mitchell?  41 A   Doesn't —  42 THE COURT:  That's the broken line, is it?  43 MR. MACKENZIE:  Yes.  44 A   Doesn't go way down this way.  45 Q   Doesn't go way down into the centre of the territory?  4 6       A   No.  47       Q   Can you identify logged areas up towards the end of 3570  1 that road?  My lord, I have marked the road coming up  2 there to the -- heading towards the centre but not all  3 the way into the centre with the orange line.  4 THE COURT:  Yes, all right.  5 MR. MACKENZIE:  6 Q   And can you identify the logged areas in that area,  7 Mr. Mitchell?  8 A   Just this one here.  9 Q   Referring to the one --  10 A   That's Blunt Mountain there, Hat eet nen.  11 Q   Referring to the one on the border.  I am going to  12 mark that with a big orange B.  Is somebody logging up  13 there now, to your knowledge?  14 A   No.  15 Q   Someone logging further on along the forest access  16 road now?  17 A   No, they were logging in this area last summer.  18 Q   Last summer.  Referring to the dotted area mark west  19 of the triangle marked 87.  I am going to put a big C  20 there.  Are you familiar with the other logging areas  21 further along towards the centre of the territory at  22 the end of that forest access road, Mr. Mitchell?  23 A   No.  24 Q   Are you familiar with the logged area in the centre of  25 the territory?  2 6 A   No.  27 Q   No.  Now, let's look over then at the eastern  28 boundary, and I think you said that you do know about  29 that.  I am pointing you now to the creek called Culch  30 Creek in the southeast or southeastern part of the  31 area, now that's close to Soon Dzel, isn't it?  32 A   Soon Dzel would be about here.  Right there.  33 Q   That's right.  Just putting an X just above, just to  34 the north of the headwater of Culch Creek, my lord.  35 THE COURT:  What have you put there, an X?  36 MR. MACKENZIE:  Yes, an X just to orient on the territory.  37 Q   Now referring to that, Mr. Mitchell, can you tell his  38 lordship where the logging is going on now in that  39 part of the territory?  40 A   It's around this territory, this area here.  Right  41 along a creek.  42 Q   Referring to the eastern boundary, along the creek, I  43 am going to put a D, big orange D in that area.  And  44 you were logging over there, weren't you, two years  45 ago?  46 A  A couple of years, yes.  47 Q   Are you aware that a forest access road is now being 3571  1 built into the eastern part of the territory towards  2 Touhy Creek, that's Lots' wenii ts'anlii?  3 A   Lots' wenii ts'anlii.  4 MR. MACKENZIE:  Can we get a spelling, please?  5 THE TRANSLATOR:  That's 577.  6 MR. MACKENZIE:  My lord, referring to the eastern part of the  7 territory where there is another dotted line coming  8 in.  9 THE COURT:  I thought you were up by Touhy Creek?  10 MR. MACKENZIE:  Yes, my lord, that's right.  Moving over towards  11 Touhy Creek.  12 THE COURT:  Touhy Creek is way up at the top.  13 MR. MACKENZIE:  No, that's the lake, my lord.  The creek flows  14 out of the lake, my lord.  Do you have that, my lord?  15 THE COURT:  Yes.  16 MR. MACKENZIE:  17 Q   I am sorry, I interrupted you Mr. Mitchell, are you  18 aware there is a logging road coming into the eastern  19 part of that area near that creek?  2 0       A   No.  21 Q   Where is the logging now?  22 A   I was working over here along and I know the road's  23 going into here.  There is another block in there.  In  24 there.  I didn't go up that far.  25 Q   The road is going in to the eastern part, you say?  26 A   Yes, it goes towards Soon Dzel anyway.  27 Q   Goes to Soon Dzel.  I am going to put an orange line  28 pointing towards Soon Dzel; is that correct?  29 A   Yes.  30 MR. MACKENZIE:  I put a dotted orange line towards the eastern  31 boundary, or just beyond the eastern  boundary,  32 heading towards Soon Dzel, and the witness indicated  33 there is a forest access road going there, my lord.  I  34 am showing that to your lordship.  35 THE COURT:  Yes.  36 MR. MACKENZIE:  37 Q   And you say there is a cut block inside the territory  38 north of -- northeast of Soon Dzel?  39 A   It would be northeast of Soon Dzel.  I never went that  40 far but there is another company was logging in there  41 when I was working down below.  42 Q   Is that D. Groot?  43 A   Yes, that company, yes.  44 Q   Well, I will put the letter E in orange marker where  45 you were pointing to, you think it was up in this  46 area?  47 A   Yes. 3572  1 Q   I put a large E just to the end of that forest access  2 road, east of the area where Mr. Mitchell thinks that  3 Groot is logging now.  4 My lord, I would submit that for an exhibit  5 insomuch as it shows the logging areas.  6 THE COURT:  All right.  7 MR. MACKENZIE:  In that territory.  8 MR. RUSH:  Well, the logging areas are identified by the letters  9 on the map by the witness.  Doesn't show anything  10 else.  11 MR. MACKENZIE:  Yes, that's correct my lord.  12 THE REGISTRAR:  Exhibit 249, tab 1)  13  14 (EXHIBIT 249:  MAP)  15  16 MR. MACKENZIE:  Now, my lord, I am still referring briefly to  17 that map, Exhibit 249.  18 Q   Now, looking over to the western part of the  19 territory, Mr. Mitchell, are you aware that there is a  20 grazing permit issued for the western part of the  21 territory marked by a heavy dotted line coming down in  22 the western part of that territory?  Do you know about  23 that?  24 A  All I know is that somebody was grazing into this area  25 from K'aaz Kwe.  They had a cattle guard there.  26 Probably here, eh?  Cattle guard.  That's all I know.  27 I don't know about this whole area.  28 Q   Referring to -- I am going to put a letter F where the  29 witness said there was a cattle guard.  This is in  30 blue on the court's copy and it's just to the  31 northeast of Duck Wing Lake.  I am showing that to  32 your lordship.  Just below the southwestern point on  33 the forest access road, which we have marked in orange  34 coming into the territory at the southwestern point on  35 Exhibit 249.  36 And, my lord, the witness is pointing up along the  37 forest access road, saying that there -- someone was  38 grazing cattle in that area; is that correct, Mr.  39 Mitchell?  40 A   Yes, the cattle go right up to this area.  41 Q   The cattle go right up to the area where we have  42 marked a large A, that large cut block, rectangular  43 cut block; is that correct, Mr. Mitchell?  44 A   Yes.  45 MR. MACKENZIE:   Does your lordship have that?  4 6 THE COURT:  Yes.  47 MR. MACKENZIE: 1  Q  2  A  3  Q  4  5  6  A  7  Q  8  A  9  Q  10  A  11  Q  12  13  14  A  15  16  Q  17  A  18  19  20  Q  21  22  23  24  A  25  Q  26  27  28  29  A  30  Q  31  32  A  33  Q  34  35  36  37  38  A  3 9 MR.  RUSH  40  A  41 MR.  mack:  42  Q  43  44  A  45  Q  46  47  A  3573  You don't know who holds that grazing permit?  No.  Now, there are a lot of hunters coming in along that  forest access road in the western part of the  territory, aren't there?  Lots of hunters.  Lot of white hunters coming in?  Yes, lots of them.  And lots of Indian hunters go up there as well?  Yes, including me.  Including you.  That's correct.  So, the pressure on  the animals, the hunting pressure on the animals in  that area of the access road is pretty heavy now?  Yes, it's pretty heavy.  There is another access road  that goes below along here.  The witness was referring to --  From, turns, anyway it turns off K'aaz Kwe, just when  this one starts going up, the whole access road,  forestry access road goes through there.  I am putting that as a dotted line in blue going north  along the Bulkley River from the forest access road  which we put in orange.  And does that continue up  towards Hazelton or Sus Kwe?  All the way up to Sus Kwe.  I will continue that old access road all the way up  the Bulkley River.  Now that was the route of the old Telegraph Trail,  wasn't it?  Yes.  Yes.  Are you aware that of the Telegraph Trail was  built in the 1860s?  Well, that's fine.  Yes, I was around that time.  Sometime back then.  That's right we weren't around.  Now, this is the area, this is the area up around  Mount Seaton where you were hunting for goats in 1960,  wasn't it?  Yes, it would be this area here.  Pointing to where the B is.  Where this trail here goes.  >JZIE:  Speaking about the forest access road starting to turn  east?  Around this area.  And on that that occasion -- when was that, by the  way, what time of year was that?  In what month? 3574  1 Q Yes.  2 A It would be in the August month.  3 Q That's when you went up with seven people?  4 A Yes.  5 Q And that's the time that you shot the 14 goats?  6 A Yes.  7 Q Yes.  And have you been goat hunting up in this area  8 since then, Mr. Mitchell?  9 A I went up there with Sylvester Williams two more times  10 after that with different parties.  11 Q Referring to the location B on the map.  And what  12 years were those, Mr. Mitchell?  13 A The last time it would be about '75 or '76, I think.  14 I am not sure of the year.  15 Q What month would that be, of that year?  16 A Oh, it was about August month.  17 Q Thank you.  18 Mr. Mitchell, I am looking at Exhibit 211, are you  19 aware that there is a guide outfitter's base camp up  20 at Touhy Lake, that's Lots' wenii ts'anlii?  Spelling  21 for that.  22 THE TRANSLATOR:  577.  23 A No.  24 MR. MACKENZIE:  25 Q No, you don't know about that guide outfitter's base  2 6 camp?  27 A No.  28 Q I take it you are not aware that the Ministry of Lands  29 has issued a special use permit for that base camp?  30 A I know nothing about that, no.  31 Q And I take it you are not aware that the guide  32 outfitter's certificate for that area has been issued  33 to Mr. McTague?  34 A In that same area?  35 Q Yes.  36 A No.  37 Q Do you know Gerald McTague?  38 A No.  39 Q Have you heard of a company called Blunt Mountain  40 Outfitters?  41 A No.  42 Q You are not aware they have a ten year licence to  43 conduct guide outfitting in that area around Touhy  44 Lake?  45 A No.  46 Q And are you aware that -- I will just ask you this  47 question as a basis for your experience, you mentioned 3575  1 an area in the western part, the large rectangle in  2 the western part of the territory that you re-planted  3 in 1968, do you remember that?  4 A   Yes, that's that clear-cut area, marked area, yes.  5 Q   Those areas that are re-planted, do they become go  6 areas for moose to browse in?  7 A   Yes.  8 Q   And do they become good areas for deer to browse in?  9 A  When they had this cattle in there, there was not very  10 much moose.  You don't see them around.  Too many  11 cattle in there.  12 Q   Because of the cattle.  And finally you referred  13 yesterday to a mill, Chapman or Spence mill, was that  14 working in that area, in the western part?  15 A   That would be in the '50s.  Or in the '40s, late '40s,  16 I think it was.  17 Q   They were working up in that western area as a  18 sawmill?  19 A   That would be north and part of this K'aaz Kwe.  20 Q   North of K'aaz Kwe Creek?  21 A   Yes, north of K'aaz Kwe.  22 Q   And, when those -- were those white people that owned  23 that sawmill?  24 A   Chapman, yes, they owned it.  Spence --  25 Q   And to your knowledge did he seek permission from  26 Caspit to operate a sawmill there?  2 7 A   No, I don't know.  28 Q   And the Forest Service hasn't sought permission from  29 Caspit to build its road in there, has it?  30 A   No.  31 Q   It hasn't sought permission from Sylvester Williams to  32 build a road in there, has it?  33 A   I didn't get you.  34 Q   The Forest Service has not got permission from  35 Sylvester Williams to build a road?  36 A   No.  37 THE COURT:  I wonder if it isn't possible to reach some  38 agreement that to assume that neither side has given  39 permission to the other, affirmatively.   We have had  40 so much negative proof, from the railroad to the  41 Chapmans and can't we assume that nobody has sought  42 permission unless it's affirmatively proven?  43 MR. MACKENZIE:  I think that type of agreement would be useful.  44 because as I understand it, subject to further  45 discussion, if your lordship wishes, we have an  46 obligation to put some of this evidence to the  47 witnesses as they come in from each territory, if we 3576  1 are going to call this type of evidence in the defence  2 case.  3 THE COURT:  Well, I haven't cast my mind forward to -- I thought  4 you might some day get a chance to call your evidence.  5 But is there any such obligation to put that to the  6 witnesses in that way?  I will leave it with you  7 gentlemen.  I am going to assume, unless you tell me  8 otherwise, that no one has any permission to do  9 anything on each other's territory, that is express  10 permission.  I know the plaintiffs have been asking  11 the witnesses whether they gave permission, and the  12 defence in turn has been asking the witnesses if  13 others sought their permission.  Seems to me to be, if  14 not unduly repetitious, quite unnecessary, in view --  15 from this point on, because I am going to assume that  16 there is no permission either way, each have done what  17 they think they should do.  And if counsel find that  18 awkward, I won't stop them.  But I don't need to be  19 treated to constant inquiries about permission.  I am  20 assuming there is none, there isn't any express  21 permission, anyway.  22 MR. MACKENZIE:  I will keep that in mind.  23 THE COURT:  Thank you.  How are you getting along, Mr.  24 Mackenzie?  25 MR. MACKENZIE:  My lord, I will be finished in an hour tomorrow  2 6 morning.  27 THE COURT:  All right.  The last map was tab 1, was it not?  28 THE REGISTRAR:  Tab 1, my lord, Exhibit 249.  29 (Proceedings adjourned to January 16, 1988 at 10  30 o'clock a. m.)  31  32  33  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  43  44 Wilf Roy  45 Official Reporter  46  47

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