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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1988-04-26] British Columbia. Supreme Court Apr 26, 1988

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 5545  Ruling  1 APRIL 26, 1988  2 VANCOUVER, B.C.  3  4  5 THE REGISTRAR:  Order in Court.  In the Supreme Court of British  6 Columbia, this Tuesday, April 26th, 1988.  Calling  7 Delgamuukw versus her Majesty the Queen at bar, My  8 Lord.  I caution both the witness and the interpreter  9 you are still under oath.  10 THE COURT:  All right.  Will it be convenient to deal with the  11 question of admissibility?  12 MR. RUSH:  Yes, My Lord.  13 THE COURT:  All right.  Thank you.  14 A question has arisen about the right of the defence  15 to rebut admissible hearsay about a reputation of  16 title, by asking Mr. Morrison whether he knows of  17 adverse claims being advanced by living -- being  18 advanced by or on behalf of living persons.  The  19 specific context of this question appears at volume  20 86, line 21 -- I'm sorry, volume 86.  I have lost the  21 page number.  22 MR. RUSH:  I think it's 5448.  23 THE COURT:  Thank you. I guess I left my copy downstairs.  24 Volume 86, page -- again Mr. Rush please.  25 MR. RUSH:  5448.  26 THE COURT:  5448.  When Mr. McKenzie in cross-examination of Mr.  27 Morrison asked a question:  28  29 "Q  As far as you're aware the Nisga'a people  30 are still claiming Bowser Lake hunting ground,  31 aren't they?"  32  33 An objection on the ground of hearsay was taken,  34 upon which I have the benefit of argument by counsel.  35 I start with the proposition that the Bowser Lake  36 hunting area is within the plaintiffs' claimed area,  37 and the plaintiff has, or I assume will attempt to  38 establish their title to this area by admissible  39 hearsay based upon the reputation as authorized by my  40 previous rulings on hearsay.  Thus the plaintiff  41 asserts or will assert that out of court statements by  42 deceased persons, alone or in connection with other  43 evidence, establishes a sufficient evidentiary basis  44 for a declaration of title.  The basis of this  45 principle is reputation, which according to the  46 authorities is justified upon grounds of necessity and  47 trustworthiness. 5546  Ruling  1 In this case there is no doubt about necessity.  As  2 to trustworthiness, it is clear that declarations by  3 deceased persons are admissible, and if not rebutted,  4 are sufficient to establish a cause of action.  An  5 adverse claim raises a doubt about the trustworthiness  6 of a reputation of title.  It is therefore clear that  7 such evidence is admissible.  The real question being,  8 how can it be adduced.  9 The defence may, of course, adduce the evidence of  10 the adverse claim directly, but it seems to me the  11 defence may attempt also to do this by  12 cross-examination of the plaintiffs' witnesses.  Mr.  13 Rush says a claim by the Nisga'a people, for example,  14 is hearsay.  With respect, I agree with Mr. Macaulay  15 in this connection, that is that making a claim orally  16 or in writing, not being evidence of the truth of  17 anything, except that a claim has been made, if such  18 is the case, is not hearsay.  It is an act which can  19 be given in evidence.  20 Mr. Rush also says that the Nisga'a, as identified  21 and described in this case at this time, is not a  22 recognizable community which can have -- I'm sorry, is  23 not an identifiable community sufficient for the  24 purposes of establishing reputation.  With respect,  25 that may be so, but I can only make that determination  26 at the end of the trial.  Certainly the community  27 requires some consideration, and I doubt if a  28 reputation about title to the area we are considering  29 in the Fraser Valley or the lower mainland or  30 something of that kind may not be of any evidentiary  31 value, but I am not able at this time to say that a  32 reputation within a Nisga'a community being at least a  33 neighbouring community to that of the Gitksan may be  34 sufficient.  Thus, if the Nisga'a or some of them said  35 to Mr. Morrison, "We claim the Bowser Lake hunting  36 territory" or similar words, or write him a letter or  37 file a claim with a minister of the Crown, or issue a  38 the Writ, then it seems to me that he may be asked  39 about this.  Not to prove the claim is valid, but to  4 0 prove a claim has been made which may be adduced --  41 I'm sorry, which may be adverse to the plaintiffs'  42 claim, and therefore possibly in destruction or  43 partial destruction of the reputation upon which the  44 plaintiffs rely.  45 I believe this point is covered in my previous  46 reasons for judgment.  I add, however, that this goes  47 only to admissibility, and it relates only to the 5547  Ruling  1 reputation upon which the plaintiff relies.  It will  2 not carry the defence very far, for the claim may well  3 be invalid or of recent invention.  Those matters I  4 will have to consider after all the evidence has been  5 heard.  6 I may add that it would be anomalous on a matter of  7 admissibility to permit the plaintiff to rely upon  8 a -- permit the plaintiffs to rely upon a reputation  9 based upon the declarations of deceased persons and  10 not to allow that reputation to be questioned by  11 declarations made by living persons.  The exception to  12 the hearsay rule applies, however, only with respect  13 to the declaration of deceased persons, and the  14 evidence the defendants seek to adduce in opposition  15 to the reputation must qualify for admissibility on  16 some other ground.  17 In this case and to the limited extent I have  18 mentioned, I dismiss the objection and hold that Mr.  19 MacKenzie may ask the question which objection was  20 taken and complementary questions.  But I point out  21 that in my view it carries the defence a very short  22 distance, if at all, in the intended destruction of  23 the reputation to which I assume at the end of the  24 trial the plaintiffs will be relying upon in  25 connection with the Bowser Lake area.  Thank you.  26 Mr. Mackenzie.  27 MR. MACKENZIE:  My Lord, I wish to go over the volumes of the  28 documents that were used during the examination and to  29 submit those that I haven't marked already for -- to  30 be exhibits or alternatively exhibits for  31 identification.  32 THE COURT:  Yes.  Where do you want to start?  33 MR. MACKENZIE:  My Lord, I wish to start with the green binder,  34 volume one, tab four.  My Lord, there is a reference  35 to the passages at page 99 in these notebooks of Neil  36 Sterritt.  They weren't identified by Mr. Morrison,  37 but in my submission they should be exhibits for  38 identification because there was quite a lot of  39 discussion about this material and the following  40 tab, which also I will submit as an exhibit for  41 identification.  42 THE COURT:  Well, I thought we were in green tab four.  43 MR. MACKENZIE:  Yes, My Lord, green tab four.  Volume one, tab  44 four, page 99.  45 THE COURT:  Green tab four?  Oh, I'm sorry.  Yes.  46 MR. MACKENZIE:  Does Your Lordship follow my —  47 THE COURT:  Well, isn't Mr. Sterritt going to be a witness?  I 554?  Ruling  1 think I have been told that, haven't I?  2 MR. RUSH:  Yes, Mr. Sterritt will be a witness.  3 THE COURT:  Aren't these matters going to be put to him?  4 MR. MACKENZIE:  Yes, yes.  That's why I submit they should be  5 marked for identification now, My Lord.  6 THE COURT:  What do you say, Mr. Rush?  Or I'm sorry, Mr.  7 Macaulay, perhaps, first.  8 MR. MACAULAY: I have no submission to make.  9 THE COURT:  Mr. Rush?  10 MR. RUSH:  Well, on the -- in terms of this witness, he didn't  11 identify nothing.  He knows nothing about the writing  12 here, and some things -- some items here were put to  13 him.  In my submission they ought not to go in at this  14 time, and when Mr. Sterritt is called --  15 THE COURT:  I agree with you, Mr. Rush.  I don't think there is  16 any basis for admitting these documents.  The evidence  17 was clear.  It was put to -- page 99 was put to Mr.  18 Morrison, and he said it's not true, it didn't happen,  19 for example.  That seems to me to be an insufficient  20 basis for admissibility.  Should I take it out?  21 MR. MACKENZIE:  Yes, My Lord.  22 THE REGISTRAR:  The entire tab?  23 THE COURT:  The entire tab, I think.  24 MR. MACKENZIE:  And Your Lordship's comments will apply then to  25 tab five as well, I take it?  2 6 THE COURT:  Yes.  I have on the first two pages, I have four  27 notes where the witness disagreed with what is stated  28 there, and another note that he doesn't know.  I don't  29 think there is any basis for putting them in.  The  30 parts that were put to him are in evidence and his  31 answers as well.  32 MR. MACKENZIE:  Tab six was also not — the witness also did not  33 identify tab six, My Lord.  34 THE COURT:  What is tab six?  35 MR. MACKENZIE:  Tab six is the comprehensive claim by the  36 Kitwancool band.  37 THE COURT:  Has that already been removed?  I don't have  38 anything under tab six in my book.  39 MR. RUSH:  I don't think it was ever put to the witness, My  40 Lord.  To my knowledge it wasn't, and whether it's in  41 your -- I think the correct determination is what has  42 occurred with your book.  4 3 MR. MACKENZIE  44 THE REGISTRAR  4 5    MR. MACKENZIE  It was put to him in evidence.  Do you want it removed?  I have it in mine.  It has to be removed.  4 6    THE COURT:  All right.  47    MR. MACKENZIE:  And, My Lord, tab seven speaks for itself. 5549  Proceedings  1 THE COURT:  Yes.  I think it can be marked, be identified as  2 Exhibit 421.  3  4 (EXHIBIT 421  - TAB SEVEN OF GREEN BOOK OF J.  5 MORRISON - HAZELTON VOTERS' LIST)  6  7 MR. RUSH:  I think that should be qualified for the limited  8 purpose of him identifying his name on the list.  9 THE COURT:  I think he said that already, Mr. Rush.  At least I  10 heard him say that.  11 MR. MACKENZIE:  Tab 10 and tab 11 was already put to the  12 witness.  13 THE COURT:  10 and 11?  14 MR. MACKENZIE:  They are interrogatories, so I just submit those  15 for --  16 THE COURT:  You want to put them in?  17 MR. MACKENZIE:  On reflection, My Lord, I do not want that put  18 in tabs 10 and 11.  They can be taken out.  Tab 12 was  19 put to the witness in evidence.  It was not identified  20 or agreed with, so that will have to be taken out.  21 THE COURT:  Yes.  22 MR. MACKENZIE:  Tab 13 was exhibited.  2 3 THE COURT:  Yes.  24 MR. MACKENZIE:  Tab 14 was exhibited and right down to 19.  25 THE COURT:  Was tab 16 an exhibit?  26 THE REGISTRAR:  Tab 16 was marked 386 for ID, My Lord.  27 THE COURT:  I don't seem to have marked it.  Is it in as an  28 exhibit?  29 MR. MACKENZIE:  Yes, My Lord.  30 THE REGISTRAR: It's an exhibit marked for identification, 386.  31 THE COURT: What number is it please?  32 THE REGISTRAR:  386.  33 THE COURT:  386?  34 THE REGISTRAR:  Yes, My Lord.  35 THE COURT:  For identification?  36 THE REGISTRAR:  Yes.  37 THE COURT:  Thank you.  38 THE REGISTRAR:  Tab 17 is marked 387 for identification.  39 THE COURT:  Thank you.  Tab 18?  40 THE REGISTRAR:  Tab 18 is marked 404 for identification.  41 THE COURT:  Thank you.  42 THE REGISTRAR: 19 not marked.  43 MR. MACKENZIE:  19 is not marked.  Nothing marked in there.  44 THE COURT:  All right.  45 THE REGISTRAR:  Do you want 19 out?  46 MR. MACKENZIE:  Yes please.  20 is 383.  21 is Exhibit 26.  4 7 THE COURT:  Yes. 9    MR. MACKENZIE  10 THE REGISTRAR  11 MR. MACKENZIE  5550  Proceedings  1 MR. MACKENZIE:  22 is Exhibit 402 and 401.  2 THE COURT:  I'm sorry, what was that again?  3 MR. MACKENZIE:  Tab 22, My Lord.  4 THE COURT:  Yes.  Yes, it's marked 402, yes.  5 THE REGISTRAR: And 4 01.  6 THE COURT:  Oh, yes.  Thank you.  7 MR. MACKENZIE:  23 isn't marked.  8 THE COURT:  Take it out?  Yes, My Lord.  24 is not marked.  24 is not marked.  It has to come out.  And  12 25 -- sorry, My Lord.  13 THE COURT:  25 — one page of 25 is marked.  14 MR. MACKENZIE:  Yes.  15 THE COURT:  All right.  26 is not marked.  16 MR. MACKENZIE:  That's correct, My Lord.  17 THE COURT:  May I return all these unmarked documents to you,  18 Mr. Mackenzie.  I'm sorry, I haven't kept them  19 segregated.  20 MR. MACKENZIE:  And the blue volume is volume two, My Lord.  21 THE COURT: Yes.  22 MR. MACKENZIE:  And Your Lordship has marked the first tab, tab  23 one.  2 4 THE COURT:  Yes.  25 MR. MACKENZIE:  The last two pages.  I think Your Lordship has  26 taken everything out except the last two pages.  2 7 THE COURT:  Yes.  28 THE REGISTRAR:  Marked for identification.  29 MR. MACKENZIE:  Yes, for identification.  Tab two is out.  Tab  30 three is exhibited -- admitted, exhibited.  31 THE REGISTRAR:  411.  32 THE COURT:  Nothing on tab four is marked, is it?  33 MR. MACKENZIE:  Now, My Lord, tab four and tab four A and tab  34 five and tab six have not been identified.  They are  35 trapline documents from the files of the Provincial  36 Government, and I want to submit that they be put in  37 for identification now, to be proved later, because  38 they relate to James Morrison's trapline, according to  39 the —  40 THE COURT: Were they put to Mr. Morrison?  41 MR. MACKENZIE:  I think Mr. Morrison didn't identify any of  42 those documents, if I did put them to him.  For  43 example, at tab five I put that to him, he denied that  44 completely.  45 THE COURT:  Well, if you put them to him, which is all you have  46 to do, I suppose, to meet one of the tests of  47 admissibility for later proof, is it necessary to do 5551  Proceedings  1 any more than that?  Why should they be marked now?  2 MR. MACKENZIE:  Fine, My Lord.  I won't press that.  3 THE COURT:  I will leave them in the book.  If you're going to  4 prove them, I will leave them in the book.  I won't  5 mark them in any way.  6 MR. MACKENZIE:  Fine, My Lord.  7 MR. RUSH:  My Lord, I don't want to press the point either, but  8 in particular there have been trapline applications of  9 Mr. Sam Morrison and Mr. James Morrison which have  10 been admitted and are in the record, and there is a  11 duplicate of those in one of those tabs at tab four.  12 And in the case of tab five there is no signature in  13 respect of the application, and I would submit that in  14 those circumstances they ought not even to stay in the  15 book.  I think you should just take them out of the  16 book, and if they are going to be proved at some date,  17 then sobeit.  18 THE COURT:  Well, I'm a little — I guess I'm a little concerned  19 about the argument we might get into later on when an  20 attempt is made to prove these as to whether these  21 documents were put to Mr. Morrison or not.  It may be  22 that they don't have to be put in, but if they are in  23 this book, at least there would be an easy reference  24 to the evidence as to establish what was put to him  25 and what wasn't, such as reference to tab four of the  26 blue book.  I'll just leave them without being marked,  27 just so they can conveniently be located and have some  28 way where they can be better traced.  Just leave them  29 alone.  30 MR. MACKENZIE:  Tab seven, eight and nine were marked, My Lord.  31 THE COURT:  How about six?  Oh, that's one you say that he —  32 MR. MACKENZIE:  I put to him and he said he didn't know anything  33 about it.  34 THE COURT:  All right.  Seven, eight and nine have been marked.  35 All right.  36 MR. MACKENZIE:  And I put to Mr. Morrison the Sam Morrison  37 documents ten, eleven, twelve, thirteen, but he didn't  38 identify any of them.  39 THE COURT:  All right.  You are going to try and prove them  40 later?  41 MR. MACKENZIE:  Yes, My Lord.  42 THE COURT:  All right.  Just leave them there and let's see what  43 happens.  44 MR. MACKENZIE:  Fourteen and fifteen are exhibits.  4 5 THE COURT:  Yes.  46 MR. MACKENZIE:  And I did not put tab 16 and tab 24 to Mr.  47 Morrison.  I learned my lesson by then.  But I -- 5552  Proceedings  1 these were referred to in the evidence in the sense  2 that they are the supporting documents underlying the  3 evidence on Exhibit 24A1, and questions were asked  4 about the people on these traplines.  Moses Stevens  5 and Charles Stevens, for example, Your Lordship asked  6 Mr. Morrison about -- about each of these people, who  7 is Charles Stevens, who is Ernest Agnus, who is Wilmer  8 Johnson, and that would take us down to tab 24.  9 THE COURT:  I am not going to mark them at all.  We will just  10 save them for a convenient --  11 MR. RUSH:  Again, My Lord, I think they should all come out.  I  12 think what's happening here is that my friend  13 essentially has a means of drawing from a number of  14 different files duplicate copies, and sometimes  15 additional copies, and simply puts them all in the  16 book, and I just don't think that your records should  17 be cluttered by that.  18 THE COURT:  Well, I don't think there is anything to worry  19 about.  It's not going to be cluttered because it's  20 not going to be looked at unless they are proven.  And  21 I think there is some advantage in perhaps being able  22 to locate them and relate them by tab number.  If they  23 are not proven, they won't be looked at.  And I think  24 at the end of the trial we'll have to go through this  25 exercise again with regard to documents that are in  26 these books that haven't been proven, and we'll delete  27 them at that time, if that should be done.  28 MR. MACKENZIE:  Tab 25 was exhibited, My Lord.  2 9 THE COURT:  Yes.  30 MR. MACKENZIE:  Tabs 26 to 28 deal with the traplines again, and  31 I submit they should remain in for those reasons.  32 THE COURT:  Was it put to the witness?  33 MR. MACKENZIE:  No, these were the Wilmer Johnson trapline —  34 THE COURT:  I see.  35 MR. MACKENZIE:  Tab 29 was not put to the witness, and I don't  36 think there is any need to leave that in the book, My  37 Lord.  38 THE COURT:  All right.  Take it out.  39 MR. MACKENZIE:   Tab 30A, 30B and 30C, they were discussed with  40 Your Lordship, and as Your Lordship will recall, they  41 were comparisons of the boundaries shown in Exhibit B  42 of the Statement of Claim, and they were referred to  43 in the evidence in some detail.  44 THE COURT:  All right.  They can stay in, but they are not being  45 marked at this time.  46 MR. MACKENZIE:  Yes, My Lord.  Tab 31 was not discussed or put  47 to the witness. 5553  Proceedings  1 THE COURT:  All right.  Take it out.  2 MR. MACKENZIE:  Tab 32 is an excerpt from trial exhibit 101  3 relating to the territories of this witness, so, My  4 Lord, that should remain in.  5 THE COURT: It's part of trial exhibit what number?  6 MR. MACKENZIE:  101, My Lord.  7 THE COURT:  All right.  8 MR. MACKENZIE:  Now, My Lord, tab 33 is the same, and tab 33 is  9 the Neil Sterritt extract, and Mr. Morrison denied  10 certain items in that -- he didn't identify that  11 excerpt.  12 THE COURT:  Yes.  All right.  As it appears to have been  13 discussed in the evidence and may be convenient to be  14 able to be located when reading the transcript, I will  15 leave it in, but it's not being marked.  And if it  16 isn't proved in some way, as it is expected will be,  17 then of course it will have to come out before the  18 trial is over.  19 MR. MACKENZIE:  Tab 34 was not put to the witness.  2 0 THE COURT:  All right.  Take it out.  21 MR. MACKENZIE:  Tab 35 is exhibit — sorry, tab 35 is exhibit  22 342.  23 THE COURT:  All right.  24 MR. MACKENZIE:  Tab 36 is exhibit 103A for identification.  Tab  25 37 is exhibit 103B for identification.  Tab 38 is  26 exhibit 104.  27 THE COURT: All of it?  28 MR. MACKENZIE:  The notes attached to the letter, September 3.  2 9 THE COURT:  All right.  30 MR. RUSH:  My Lord, I think all of those should come out because  31 you have them all in a separate place in the record  32 already.  33 THE COURT:  This wasn't discussed with the witness, was it?  34 MR. MACKENZIE:  Information in this material was discussed with  35 the witness, but these notes weren't put to the  36 witness.  37 THE COURT:  All right.  Well, if they are already in somewhere  38 else, they don't need to be here.  If they weren't  39 actually put to the witness, then it won't help to  40 have them in the book.  41 THE REGISTRAR: Just 38?  42 THE COURT:  Yes, 38.  43 MR. MACKENZIE:  I was speaking about 35, 36, 37 and 38, which I  44 think are all exhibits in the proceeding.  45 THE COURT:  They were also discussed with the witness, and it  46 therefore may be convenient, as they are already in --  47 deleted in this collection.  One comes to read the 5554  Proceedings  1 transcript, will have the blue book before him, and it  2 will be convenient to have them all in one place.  I  3 will return the extracts to you, Mr. MacKenzie, from  4 the blue book.  5 MR. MACKENZIE:  Volume 3, My Lord, the grey binder.  The first  6 two documents weren't put to the witness.  Trial  7 exhibit five is tab one.  Trial exhibit 102 is tab  8 two.  9 THE COURT:  I'm sorry, what is —  10 MR. MACKENZIE:  My Lord — volume three, My Lord, the grey  11 binder.  12 THE COURT:  Exhibit one is what please?  Tab one is what please?  13 MR. MACKENZIE:  Tab one is trial exhibit five, My Lord.  I wish  14 to submit that that be left in this binder, because it  15 is a trial exhibit and it is the excerpts relating  16 specifically to the territories of this witness,  17 and --  18 THE COURT: Was it discussed with the witness?  19 MR. MACKENZIE:  No, it wasn't, My Lord.  2 0 THE COURT:  Then it won't be in here.  It should come out.  21 MR. MACKENZIE:  Well, that applies to tab two then as well, My  22 Lord.  23 THE COURT:  All right.  24 MR. MACKENZIE:  My Lord, I may say that although it may not  25 appear, I did restrict my cross-examination because of  26 the length of the cross-examination.  This is all --  27 this material in trial exhibit five and trial exhibit  28 102 relates to these territories.  29 THE COURT:  That may be, but it won't assist me in reading the  30 transcript to having the documents -- I won't have a  31 sign post to them, so I'll have to go to the original  32 exhibit anyway.  Number three is already Exhibit 104.  33 MR. MACKENZIE:  Yes, My Lord, that's three, four, five, six,  34 seven are all exhibits.  Eight is out.  That should be  35 deleted.  It was not put to the witness.  36 THE REGISTRAR:  The map?  37 MR. MACKENZIE:  Yes.  Now, nine was not put to the witness.  38 THE COURT:  Take it out.  39 MR. MACKENZIE:  Ten was put to the witness, and he agreed with  40 part of it and disagreed with another part of it.  He  41 agreed with page two and disagreed with page three.  42 THE COURT:  All right.  It can remain in.  43 MR. MACKENZIE:  Tab 11 was not put to the witness and it should  44 be deleted.  45 THE COURT:  It was already taken out, was it?  46 MR. MACKENZIE:  That was given to you, My Lord, for your  47 reference.  That's the big large Canada map that we 5555  Proceedings  1 marked up to show the relationship of the territories.  2 And, My Lord, perhaps that could be marked for  3 identification.  4 THE COURT:  Yes.  All right.  5 THE REGISTRAR:  That's tab 12?  6 MR. MACKENZIE:  Yes, it is tab 12.  It's an excerpt from  7 Canada's map of the land claim area.  8 MR. RUSH:  Well, that was not marked -- this was the famed  9 Canada map in which my friend took the liberty of  10 putting some markings of his own on it and coloured  11 some of it in on his own, and Your Lordship did not  12 mark it as an exhibit for identification or anything  13 else, but you accepted it as something to assist you  14 in determining --  15 THE COURT:  Was there discussion with the witness about this  16 map?  17 MR. MACKENZIE:  No, My Lord.  18 THE COURT: There wasn't?  19 MR. MACKENZIE:  No.  20 THE COURT:  It was a discussion with me, was it?  21 MR. MACKENZIE:  Yes, My Lord.  22 THE COURT:  Well, if it's — I am going to leave it in the book  23 without being marked, because it may assist me to  24 understand the evidence, but it will only assist me to  25 understand what is the oral evidence.  The map itself  26 won't be in unless Mr. Macaulay gets around to proving  27 it otherwise.  28 MR. MACAULAY: Oh, in due course, My Lord.  Not today.  29 THE COURT:  All right.  I look forward in anticipation.  30 MR. MACKENZIE:  Exhibit — sorry, tab 13 is exhibit 107.  That  31 was not put to the witness.  That should be deleted.  32 THE COURT:  All right.  33 MR. MACKENZIE:  And 14 and 15 are exhibits.  34 THE COURT:  Yes.  35 MR. MACKENZIE:  Two more items, My Lord.  The first one is  36 volume four, My Lord -- sorry.  I beg your pardon.  37 THE COURT:  Oh, yes.  Return these to Mr. Mackenzie please.  38 MR. MACKENZIE:  My Lord, Mr. Morrison did not agree with any of  39 the matters I put to him from these -- Mr. Sterritt's  40 topographic survey notes, but there is extensive  41 discussion in cross-examination about these notes and  42 their contents.  4 3 THE COURT:  Yes.  44 MR. MACKENZIE:  And in my submission they should be left.  Well,  45 they are in volume four, but in my submission they  46 should be marked at least for identification, so that  47 they won't be misplaced and we can refer to them 5556  Proceedings  1 easily when Mr. Sterritt comes in.  There may be  2 difficulty with later identification because there are  3 several thousand of these pages in the collection of  4 documents -- of these documents, these particular  5 documents provided by the plaintiffs.  6 THE COURT:  Well, if you're going to rely on these, you will be  7 proving them through the evidence of Mr. Sterritt,  8 will you not?  9 MR. MACKENZIE:  Yes, My Lord.  10 THE COURT:  Well, I don't see a reason to mark them for  11 identification otherwise.  I am not going to throw  12 them away, and it may be that I will look at them to  13 check the transcript to see if the context is right  14 and things of that kind, but I don't think -- for the  15 purpose of assisting me for the purpose to understand  16 the transcript in evidence, but I don't think -- they  17 don't do anything at this time.  And I expect they  18 will be proven in due course, and it's for that reason  19 I am not handing them all back to you.  20 MR. MACKENZIE:  Finally, My Lord, there is an overlay that I  21 handed up to Your Lordship.  22 THE COURT:  Well, I think it's in the same category.  It has  23 been discussed in the evidence, but it shouldn't be an  24 exhibit at the trial.  I am going to keep it to help  25 me understand the evidence, but it's not proof of  2 6 anything.  27 MR. MACKENZIE:  I agree with that, My Lord.  28 THE COURT:  It shouldn't be marked then.  You indicated you are  29 going to prove it in due course.  30 MR. MACKENZIE:  Yes, My Lord.  Well, a collection of exhibits,  31 really.  All that has to be done is have a  32 photographer at least confirm --  33 THE COURT:  I think that's probably what is required, if there  34 is not an admission forthcoming.  35 MR. MACKENZIE:  Other than that, My Lord, I have no further  36 questions.  37 THE COURT:  All right.  Mr. Macaulay.  38  39 CROSS EXAMINATION BY MR. MACAULAY:  40  41 Q   Mr. Morrison, what was your grandfather, Charles  42 Morrison's chief's name?  4 3          A   Sduutxw'mlaxha.  4 4 Q   And who was Sduutxw'mlaxha for him?  4 5 A   I don't know.  46 Q   Wasn't it Johnny Morrison?  47 A   I don't think so. 5557  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Macaulay  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT:  I'm sorry, Mr. Macaulay, can I have a number for  that name?  THE TRANSLATOR: It's 941.  THE COURT:  Thank you.  MR. MACAULAY:  Q   Your mother came from Glen Vowell?  That was where she  lived before she married?  A   Yes.  Q   And did your father live in Glen Vowell?  A   Yes.  Q   And were you born in Glen Vowell?  A   Hazelton.  Q   In Hazelton?  A   Yes.  Q   Did you ever live in Glen Vowell?  A  Well, I lived there after that, after this -- after I  born in Hazelton.  Q   Yes.  A   Just a short time.  Q   For a few years?  A   Probably five years.  Q   Five years?  A   Yes.  Q   You mean 'til you were five or six years old?  A   No, I was about 25 at that time.  Q   'Til you were about 25?  A   Yes.  Q   So from about the time you were 20 to when you were 25  you lived in Glen Vowell?  A   Yes.  It's about five years or maybe a little more,  but that's --  Q   That would be in the 1950's, I guess, would it?  A   No, it's after that.  Q   All right.  A   Fifties I was still in Hazelton.  Q   Did you ever know your grandfather Charles Morrison?  Did you ever meet him?  A   Not really.  Q   Did he die before you were born?  A   Yes.  Q   Did your father -- was it your father who told you  about what his chief's name was?  A   Yes.  Also the other people.  Q   And other people too?  A   Yes.  Q   And was he head chief of his house, that is Charles  Morrison? 555?  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Macaulay  1 A   That's on the Wolf Clan.  2 Q   Well, was he in the house of Nii Kyap, and was he the  3 head chief of Nii Kyap?  Was Charles Morrison the head  4 chief?  5 A   No, Sduutxw'mlaxha is the sub-chief.  6 Q   He was a sub-chief?  7 A   Yes, that's the house of Nii Kyap.  8 Q   And you have never heard of anybody named Johnny  9 Morrison in Nii Kyap's house?  10 A   No.  11 Q   Do you know David Gunanoot?  12 A   Yes.  13 Q   Is he a relative of yours?  14 A   No, but we are in the same clan.  15 Q   Same clan?  16 A   Yes.  17 Q   Right.  And did you ever hear that Lillian Morrison  18 was a member of the House of Nii Kyap?  19 A   No.  20 Q   That name doesn't mean anything to you at all?  21 A   No.  22 Q   The -- my instructions are that Lillian was  23 registered -- the registered holder of the trapline  24 that your father became holder of in 1941.  Does that  25 recall to you anything about Lillian Morrison?  26 A   No.  I didn't see anything there.  27 Q   Your grandfather trapped on the line that your father  28 later became registered on, did he -- your grandfather  29 Charles?  30 A   Yes, there was.  31 Q   He trapped on that line?  32 A  Well, not really to trap.  There is a lot of hunting  33 on that area up in Xsi Maxhla Saa Giiblax.  It's not  34 just the trapping that was taking place on that  35 hunting territory.  There is a lot of things,  36 activities on that territory before.  37 Q   Well, there is hunting too?  38 A   Yes, hunting, all those other things.  The hunting  39 ground is used for all those things, as I stated on  40 that before.  It's not just trapping.  41 Q   No?  42 A  All the things relating with your life, this is what  43 his territory is.  44 Q   Now, your grandfather Charles then was either hunting  45 or trapping or doing something like that on Wii gyet' s  46 territory?  47 A   Yes. 5559  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Macaulay  1  Q  2  3  4  5  6  A  7  Q  8  9  A  10  11  12  13  14  15  Q  16  17  A  18  Q  19  20  A  21  Q  22  23  A  24  25  Q  26  27  28  A  29  Q  30  31  A  32  Q  33  34  35  A  36  Q  37  38  A  39  Q  40  A  41  Q  42  A  43  4 4    THE COU]  4 5    MR. MACi  46  Q  47  A  And what connection did he -- did he have to Waiget,  your grandfather Charles?  He was active on Wii gyet's  territory, and I am asking you why was he active, what  connection did he have with Wii gyet or the House of  Wii gyet?  Well, he's a father of Wii gyet.  Well, is the answer that his wife was a member of Wii  gyet's house?  Well, not onto this case -- I didn't really know  what's happening, only know that they tell me what was  father of Wii gyet is Sduutxw'mlaxha.  That's all I  know about that.  But also they use that territory at  that time, after that time was Wii gyet, as I stated  on there.  So a member of the house, a sub-chief in the house of  Nii Kyap?  Sduutxw'mlaxha.  Sduutxw'mlaxha was either hunting or trapping or both  on Wii gyet's territory?  Yes.  And you don't know what the circumstances were, why he  was on that territory?  No.  I only know that time what I stated on there  before.  And you have never heard that -- Johnny Morrison of  Glen Vowell was Sduutxw'mlaxha before your  grandfather?  Never mentioned -- my father never mentioned anything.  No.  And you never heard that Lillian and Herbert  Morrison were that man's children?  Never heard.  And you never heard that Lillian Morrison was  registered on your -- the trapline your father later  became registered on?  Never heard of it.  And your brother Sam became registered on the trapline  your father was on?  Yes.  And Sam is not a member of Wii gyet's house?  No, just the holder.  Well, he belongs to a Kitwancool house, doesn't he?  He's a Wolf Clan, but the registered holder of that  line, that territory of Wii gyet.  :  I'm sorry?  LAY:  He's the registered holder?  Yes, registered holder. 5560  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Macaulay  1 Q   Uh-huh.  2 A  Also stated on to that note that you have is that's  3 where it stands at that time, the holder, until such  4 time that the owner has taken this territory back,  5 which is Wii gyet.  It's no legal owner on that, on  6 the register.  That's the way it stands today.  The  7 legal owner is Wii gyet.  8 THE COURT:  I'm sorry.  Now, up to now we have been talking and  9 I have been understanding from what my ears tell me  10 that we have been talking about Waiget.  A moment  11 ago -- I think it was you, Mr. Macaulay, that  12 mentioned Waiget.  13 MR. MACAULAY:  Well, it's the same, as I understand it, it's the  14 same house.  Mr. Rush, perhaps, will correct me if I'm  15 in any way -- or the witness can.  As I understand it,  16 the house name is the house of Wii gyet,  17 W-i-i-g-y-e-t.  18 THE COURT:  Yes.  19 MR. MACAULAY: There is a chief in that house called Wii gyet —  2 0 THE COURT:  Yes.  21 MR. MACAULAY:  — who is, I assume, the head chief.  There is a  22 sub-chief in that house whose name is Waiget.  23 W-a-i-g-e-t.  24 THE COURT:  They are two different people.  25 MR. MACAULAY: They are two different people, but they are in the  26 same house.  And the plaintiffs' evidence has been and  27 is, and this witness's evidence is, that it's the  28 house that has the -- holds or owns any given  29 territory, and the head chief or his delegate is the  30 ruler and custodian of the territory on behalf of the  31 house from time to time.  32 THE COURT:  Well, that's not what this witness said.  He really  33 said that Waiget had some kind of rights on one of the  34 territories, as opposed to Wii gyet as caretaker, but  35 nevertheless, I think we may inevitably end up  36 confused, and more certainly in that state if we don't  37 keep the two names in some way -- distinguish one from  38 the other, will we not?  39 MR. MACAULAY: Well, although I don't know the explanation, we  40 have had evidence of several witnesses who say that  41 house A is the owner of the territory, but a sub-chief  42 had some particular -- who hasn't got the name of  43 house A, has some particular standing in regards to  44 that territory.  45 THE COURT:  Well, I'm not able to say whether this is of any  46 importance at all, but it may be necessary to keep the  47 two -- distinguish one from the other.  But I am going 5561  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Macaulay  1 to try and figure out whether you're saying Waiget or  2 Wii gyet, which is -- I take it you're saying Waiget,  3 which is a different person.  4 MR. MACAULAY: My Lord, I am trying to use the name, and I  5 understand it would be wrong for me to call it the  6 House of Waiget, when the name of the house is Wii  7 gyet, which --  8 THE COURT:  Wii and Wai, I take it to be interchangeably.  Now,  9 if you want me to understand that you mean Wii gyet,  10 W-i-i-g-y-e-t, whenever you use that word, then I'll  11 understand that accordingly, if that's what you --  12 MR. MACAULAY: If I come across them again, I better spell them.  13 THE COURT:  All right.  14 MR. MACAULAY:  But I was putting to the witness that a member of  15 the house of Nii Kyap, a different house, that was his  16 grandfather was on W-i-i-g-y-e-t's territory, and he  17 agreed with me that that was so.  18 THE COURT:  Yes.  19 MR. MACAULAY:  20 Q   Now, the trapline that was registered in your name in  21 1946 had been registered in your brother Sam's name  22 earlier; is that right?   This is the trapline in --  23 near Kisgagas?  24 A   Yes.  25 Q   You were registered --  26 A   Xsu wii wiltxwit, Lux Lax Loobit, that's what you are  27 referring to?  28 Q   Well, it's the southern --  29 A   You have to use the name of the place so I would know  30 that.  31 THE COURT:  Mr. Macaulay, did you say this trapline was near  32 Kispiox?  33 MR. MACAULAY: Kisgagas.  34 Q   So that we won't have any confusion about this, could  35 the witness be shown Exhibit 379, the map B of 379.  36 Both A and B, if that's more convenient.  I want to  37 make sure we are talking about the same territory, Mr.  38 Morrison.  So could you tell His Lordship -- you see  39 that marked on these maps are territories A, B, C, D,  40 E, F and G.  Now, what of those territories was  41 covered by your registered trapline, the one that was  42 registered in your name with the Fish and Wildlife?  43 A   First they show Xsu wii wiltxwt.  That's what -- you  44 find that on A.  45 Q   That's A?  46 A   Yes.  To Luu Lax Loobit.  That's on A.  That's a  47 boundary up north, and south boundary is Luu Lax 5562  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Macaulay  1 Loobit.  2 Q   So it's the -- it's that territory which is marked  3 W-a-i-g-e-t?  4 A   Yes.  5 Q   And it has a prominent feature on it called Luu Max  6 Loobit?  7 A   Yes.  That's on the boundary.  8 Q   Yes.  9 MR. RUSH:  Well, he is pointing to a boundary, and where his  10 finger is is Sxi Luu Suuxwit, because you are talking  11 about two different maps.  You have got the northern  12 one.  It's the -- you should have shown him the  13 southern one.  14 MR. MACAULAY: He's got both in front of him.  15 THE COURT:  He said that it's territory A, which is on the  16 northern A, capital A map, Exhibit 378.  That's where  17 he said his trapline is.  18 MR. RUSH:  And then he talked about the two boundaries which is  19 in -- which is in map B.  20 MR. MACAULAY: We better go at this one again, My Lord.  21 THE COURT:  Please do.  22 MR. MACAULAY: I want to make sure — all I am doing at the  23 moment is to make sure we are talking about the same  24 thing.  25 THE WITNESS:  See, this is northern territory, this is southern  26 territory.  27 Q   That's right.  Now, your registered trapline, was it  28 on the northern territory or the southern territory?  29 A   Southern territory.  30 Q   Let's look at the southern territory then.  I am  31 talking only about the one registered in your name.  32 And did that trapline cover the territories that have  33 the letters E and G?  Both E and G, did it cross that  34 border?  You see there is a border called Luu Lax  35 Loobit.  36 A   Yes, Luu Lax Loobit.  37 Q   Luu Lax Loobit.  Now, did your trapline cross that?  38 A  Maybe it shows in Fish and Wildlife, but not into  39 tradition boundary.  Tradition boundary, that's where  40 it is here now.  41 Q   So the area where you trapped was north of Luu Lax  42 Loobit?  43 A   Yes, we trapped up in this area here near Xsu wii  44 wiltxwt.  That's where the trail was.  45 Q   Right.  46 MR. RUSH:  And he pointed, My Lord, to the place where the words  47 Xsu wii wiltxwt are on the northern part of that -- 5563  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Macaulay  1 MR. MACAULAY: The northern boundary, more or less northern  2 boundary of E.  3 MR. RUSH:  Yes.  4 THE COURT:  Well then, your trapline didn't extend into G, as  5 Mr. Macaulay suggested.  6 MR. MACAULAY: The witness's answer, as I understand it, is  7 whatever may be on the records of Fish and Wildlife,  8 that he considered his trapline to be in --  9 exclusively in E.  10 THE COURT:  Yes.  11 MR. RUSH:  Well, I think that my friend's summary is basically  12 correct, that the witness had said that he trapped  13 north of Luu Lax Loobit, whatever might have been said  14 by the registered trapline.  15 THE COURT:  Yes, that's right.  16 MR. MACAULAY: That's what I said.  17 MR. RUSH:  I guess you and I have differences about trapline and  18 trapping --  19 MR. MACAULAY: It will be a matter of record what the trapline  20 comprised.  21 Q   Before you were registered, it was your brother Sam  22 who is the registered holder of the trapline?  23 A   I only know that time when I signed that application  24 myself, that's only thing I know, when I took over  25 that.  2 6 Q   That's when you found out that Sam had been  27 registered?  28 A  Well, maybe so, but I wouldn't realize it was him that  29 it was registered before.  30 Q   Okay.  And now it's registered in the name of Elsie  31 Morrison, who has a chief's name in the house?  32 A   Yes, Waiget.  33 Q   Her name is W-a-i-g-et?  34 A   Yes.  35 Q   And she is a sub-chief in the house of W-i-i-g-y-e-t?  36 A   Yes.  37 Q   Okay.  Now, while you were trapping on the southern  38 territory, this is territory E, you inherited the  39 title in the Kitwancool nation?  40 A   Yes.  41 Q   And that entitled you to -- when you inherited that  42 title, that entitled you to trap in a certain area of  43 the Kitwancool lands?  44 A   Yes.  45 Q   And that was in 1983?  46 A   Yes.  47 Q   Now, before you took that name in the Kitwancool -- in 5564  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Macaulay  1 a Kitwancool house --  2 A   Yes.  3 Q   -- did you do any trapping in the Kitwancool lands?  4 A   Yes.  5 Q   You had trapped before you got the name?  6 A   Yes.  We trapped -- we hunt in White River on  7 Dublowit.  We trapped in Dublowit in 1948 in that  8 year, only one year, and then I remember in that year  9 in '52, me and my Uncle Eddie was put up to Dublowit  10 near White River that year.  So from there on we back  11 and forth on this territory all the time.  12 Q   When you say back and forth, sometimes you were at the  13 territory north near Kisgagas?  14 A   Yes.  15 Q   And other times you were at the territory near White  16 River?  17 A   Yes, only two times.  In 1948 I was with my father  18 with the other people and the others that were with  19 him at that time.  That I remember, and only that  20 spring in that year.  And then only in that spring in  21 1952 when I was with my Uncle Eddie and to that  22 territory of Dublowit.  23 Q   Your Uncle Eddie was your mother's brother?  24 A   Yes.  25 Q   Yes.  26 THE COURT:  Do I understand you to be saying, Mr. Morrison, that  27 until you inherited the chief name of the Kitwancool  28 area, you only hunted or trapped in the Kitwancool  29 area in 1948 and 1952?  30 THE WITNESS: Yes.  31 THE COURT:  All right.  Thank you.  32 MR. MACAULAY:  33 Q   And in 1983, when you inherited the -- or took the  34 name, the Kitwancool name, chief's name, you applied  35 to ARDA for a grant in connection with your trapping  36 activities?  37 A   Yes.  38 Q   And you had to fill out a form, or you did fill out a  3 9 form?  40 A   Yes.  41 Q   And Neil Sterritt helped you fill out the form?  42 A   No, not him.  43 Q   Not him.  Who was it that helped you?  44 A   Gary Patsey.  45 Q   And you had to -- this was a -- the application was on  46 behalf of the Txaaxwok trapping company?  47 A   Yes. 5565  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Macaulay  1  Q  2  A  3  Q  4  5  A  6  Q  7  A  8  9  10  11  Q  12  A  13  14  Q  15  A  16  Q  17  A  18  Q  19  A  20  21  Q  22  A  23  24  25  26  27  28  29  Q  30  31  A  32  Q  33  MR. RUSH  34  35  MR. MACA  36  MR. RUSH  37  38  39  40  MR. MACA  41  Q  42  A  43  44  Q  45  46  47  A  And Txaaxwok is your chief's name?  Yes.  And there were three members of your trapping company,  were there?  Yes.  There was yourself and who else?  There was either three of my son were supposed to be  with me.  So that's why there is three.  Either three  of them, one of them was working, so that's why we put  three in.  They were your sons?  Either the members of the house, wherever they may be.  That's why they put three in there.  Now, your sons, what house do they belong to?  It belongs to Nikateen.  That's a Gitksan house?  Yes.  Your house is Nikateen?  Yes.  The reason why it was that, that they were with  me.  Yes.  Because we stated in the feast in Kispiox at the death  of Eddie Rush, as he was Txaaxwok, stated in the feast  and the people are hearing what they were saying and  took over the name.  Take your son with you in our  permission.  This is all said.  And that's the reason  why I take him there, with the permission of the  hereditary chief, Wilitsxw.  And did your son help you trap the territory E shown  on this map, 379?  Did they help you there?  What the name of the place?  This trapline you are registered on.  Well, My Lord, I think my friend should try a little  bit with a name.  LAY: I am trying to avoid Waiget and Wii gyet.  I appreciate that, but Mr. Morrison is not wearing  glasses and he squints every time that he needs to  look at the map, and it's a regretable situation, but  if you can identify it a little bit with the name --  LAY:  It's the —  Just define the boundary from north boundary to south  boundary, so I know what you are talking about.  The trapline that has a north boundary is  X-s-i-w-i-1-w-i-l-t-x-w-t, that trapline.  Did your  sons help you on that trapline?  No. 5566  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Macaulay  1 Q   That's what I am talking about.  2 A   No.  3 Q   And did they help you trap on the northern Waiget,  4 W-a-i-g-e-t, My Lord, trapline?  5 A   No.  6 Q   Now, when you applied to ARDA for funds, it was partly  7 to build cabins, was it?  8 A   Yes.  9 Q   And those were on the Kitwancool trapline that you are  10 building those cabins?  11 A   Yes.  12 Q   And it was in partly for some equipment?  13 A   Yes.  14 Q   Was any part of that money designated for use on the  15 traplines -- any trapline north of Kisagas?  16 A   No.  17 Q   Now, I am going to show you your application, what I  18 understand is your application form.  My Lord, I am  19 handing the witness a document.  I understand the  20 witness hasn't got his glasses, which is regretable,  21 but I don't know how else to do this, and I hope that  22 we won't have to get into fine print.  Now, do you  23 recognize that -- a letter dated January 28th, 1983  24 addressed to the Manager, Special ARDA Branch B.C.?  25 A   Just give me a minute.  26 MR. MACAULAY:  I see it's 11:10.  Perhaps it could be convenient  27 now to have the witness go through the application and  28 enclosures, My Lord.  29 THE COURT:  All right.  If you wish.  You will be the rest of  30 the morning and the afternoon, won't you, Mr.  31 Macaulay?  32 MR. MACAULAY: It looks as if I will be the rest of the morning.  33 I'm not sure about the afternoon.  34 THE COURT:  You will be some time in re-examination, will you,  35 Mr. Rush?  3 6 MR. RUSH:  Yes.  37 THE COURT:  All right.  Thank you.  38  39 (PROCEEDINGS ADJOURNED FOR A SHORT RECESS)  40  41  42  43  44  45  46  47 5567  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Macaulay  1  2 I HEREBY CERTIFY THE FOREGOING TO  3 BE A TRUE AND ACCURATE TRANSCRIPT  4 OF THE PROCEEDINGS HEREIN TO THE  5 BEST OF MY SKILL AND ABILITY.  6  7  8 LORI OXLEY  9 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  47 556?  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Macaulay  1 (PROCEEDINGS RECONVENED AT 11:30 a.m.)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Yes, Mr. Macaulay.  5 MR. MACAULAY:  My Lord, at the adjournment I was asking —  6 starting to ask the witness about the letter, January  7 28th, 1983, and the enclosures.  The enclosures are  8 said to be Part I application, copy of trapping  9 grounds registration, map of trapping grounds, and the  10 enclosures are there.  11 THE COURT:  Yes.  12 MR. MACAULAY:  13 Q   Now Mr. Morrison, you've had a chance to take a look  14 at that application?  15 A   Yes.  16 Q   And appendix 1 to the -- Part I as it's called, the  17 page that reads -- that says, "Notes for T'xaa Wok  18 Trapping Co. Special ARDA Application.  Appendix "1"  19 Land & Improvements (Market Value)," lists both the  20 Kisgagas -- Kisgagas, Meziadan trapline.  They list  21 both those traplines?  22 A  Well, they list it on there but it's not used in one  23 of those traplines.  Only one is Meziadan, that's  24 where it's used.  25 Q   You mean the money was used in Meziadan?  26 A   Yes.  27 Q   Yes, you've given that evidence.  And the -- one of  28 the two maps that you enclosed, I'll show you -- shows  29 the Kisgagas trapline that's referred to in your  30 application.  My Lord, the map I'm referring to is --  31 shows trapline 607T009 at the centre of the page.  32 THE COURT:  Yes.  33 MR. MACAULAY:  And the name Morrison, James.  34 THE COURT:  And that's in the Kitwancool area, is it?  Or is it?  35 MR. MACAULAY:  No, no.  This is the Kisgagas.  36 THE COURT:  This is Kisgagas?  37 MR. MACAULAY:  Yes.  38 THE COURT:  Oh yes, yes, I see.  39 MR. MACAULAY:  You see the Skeena is there and the Babine.  4 0 THE COURT:  Yes.  41 MR. MACAULAY:  And the village, the former village of Kisgagas  42 is at the confluence of those two rivers.  4 3 THE COURT:  Yes.  4 4 MR. MACAULAY:  45 Q   And that trapline, if you look again back at Exhibit  46 379, that's the map -- that trapline clearly covers E  47 and G, or Waiget, W-A-I-G-E-T, and Wii minoosik 5569  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Macaulay  1 territories, doesn't it?  That map shows a trapline  2 that -  3 A   It doesn't show anything on this map here.  4 THE REGISTRAR:  Excuse me, Mr. Macaulay.  5 THE COURT:  Sorry, Mr. Macaulay.  6 MR. MACAULAY:  Perhaps the reporter can read the answer while  7 Your Lordship --  8 THE COURT:  Yes.  9 MR. MACAULAY:  Just read back the last answer.  10 (LAST ANSWER READ BACK)  11 MR. MACAULAY:  12 Q   Well -- no, that's -- it doesn't show any physical  13 features, but -- all right, let's take a look at the  14 application that you enclosed with it.  The  15 application for registration of a trapline dated June  16 7th, 1946, that's another of these enclosures which  17 gives a written description, and that has your  18 signature and your brother's, apparently, signature as  19 witness.  That covers not only Waiget, W-A-I-G-E-T,  20 territory, but Wii minoosik territory also.  21 A   Did it say Wii minoosik on there?  22 Q   It doesn't say Wii minoosik, it says:  23  24 "Commence at  confluence of Luu skadakwit and  25 Shedin Creeks, thence northerly along east bank of  26 Shedin Creek 13 —"  27  28 And I think it's a quarter miles,  29  30 "-- to first creek on east side din --"  31  32 That's Shedin Creek, presumably.  33  34 "-- and Sincintine and Shalagyote Rivers; thence  35 southerly eight miles along west side of said  36 height of land; thence westerly to and along north  37 bank of Luu skadakwit Creek seven and  38 three-quarters miles to point of commencement, and  39 including all intervening territory."  40  41 Now that description includes, doesn't it, the  42 Wii minoosik territory?  43 A   This isn't the boundary, this is Waiget's territory  44 here.  This is what I go by here.  There is nothing  45 shown on here.  It may have onto -- onto the  46 registered trapline because it's registered trapline  47 not traditional. 5570  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Macaulay  1 Q   Well, do you understand the description that's on the  2 application for a registration of trapline that you've  3 signed?  4 A   Yes.  5 Q   You understand that, I suspect, a lot better than I  6 do -- a great deal better than I do, and that -- what  7 I'm saying to you is that description includes Wii  8 minoosik territory?  9 A   Not include Wii minoosik.  10 Q   It doesn't?  11 A   It doesn't.  12 Q   If you draw a line?  13 A   See, they switched this.  There is so many creeks that  14 they've been switching around with the names, all  15 those creeks.  I can mention some of those creeks that  16 they're switching around at Fish and Wildlife Office  17 compared to the map -- with our traditional map, is  18 way different.  19 Q   Oh, yes, I'm sure it is.  20 A  And this is why it's not covered, that area.  21 THE COURT:  Madam Registrar.  22 MR. MACAULAY:  Well, My Lord, I'm showing the witness now — I  23 didn't make a copy of this, I didn't think I had to --  24 our document 4604, it's a trapline file, it's entitled  25 "Trapline, James Morrison, Gitanmaax Band".  And part  26 of the file is a -- very small file, is a map.  27 MR. RUSH:  May I see it first, please?  28 THE COURT:  The application that the witness says does not  29 include Wii minoosik territory is the application  30 dated June 7th, '46, is it?  31 MR. MACAULAY:  Yes, My Lord.  Mr. Mackenzie points out that he  32 has this -- a copy of a -- photocopy of this map at  33 tab 4, volume 2, of the blue volume.  34 THE COURT:  Tab 4?  35 MR. MACAULAY:  36 Q   Which he tells me he took from this file.  I didn't  37 realize he had that.  38 Now I'm showing you a map which bears your name.  39 I am not suggesting to you that you drew the map or  40 anything like that, but I ask you to look at the map  41 which shows some geographical features, and of course  42 a longitudinal and latitudinal co-ordinates, and I'll  43 ask you if that map corresponds with the written  44 description on your application of June 1946?  45 A   I don't think this map -- this map is not accurate,  46 you don't see anything on that.  It's straight line  47 there, how you can tell where these boundaries are or 5571  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Macaulay  1 what area we're talking about?  2 Q   Well it does show some rivers or creeks and a glacier.  3 A   But what this shows here?  4 Q   Well, I don't know what that shows, Mr. Morrison.  5 THE COURT:  It shows Shedin Peak.  6 MR. MACAULAY:  The witness is pointing to the almost straight  7 line on the right-hand side or east side of that map,  8 My Lord.  9 THE COURT:  Right.  10 MR. MACAULAY:  And is point — asking, "Do you know what that  11 shows?"  The only notation is Atna Mountains  12 THE COURT:  Below that is Shedin Peak.  13 MR. MACAULAY:  14 Q   Yes, Shedin Peak.  15 A   This one here, they haven't marked where anything on  16 it.  17 Q   You are showing what appears to be a lake outside the  18 trapping territory.  That's right, that isn't marked.  19 We have to do with what -- you know, we didn't make  20 the map, this came up in a file that we found, and I'm  21 asking you if that diagram corresponds generally with  22 your application?  23 A   Not even --  24 Q   -- of 1946?  25 A   Not even close of what I was looking at now because I  26 know the territory myself.  27 Q   Yes?  28 A  And it's not even close because there's nothing on  29 here to show anything that what was on -- what was  30 said in that other application.  31 Q   Okay.  Well, doesn't this map I'm showing you now in  32 this file, correspond generally, anyhow, with the map  33 you sent to the -- to ARDA?  34 A   This one show ARDA along here, it just says my name on  35 it and some of those points here as you can see.  But  36 there's nothing on it.  Like you show the  37 boundaries -- like what we -- like this one here, you  38 can show the boundaries from here what was on it, then  39 you know where -- how to move on it.  40 Q   The witness is referring to the exhibit, My Lord, was  41 it three —  42 THE COURT:  37 9.  43 MR. MACAULAY:  379, map — map B.  44 Perhaps, My Lord, I should first -- I notice that  45 the -- what's at tab 4 is only the northern part of  46 the map, it was cut off.  4 7 THE COURT:  Oh. 5572  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Macaulay  1 MR. MACAULAY:  But I hand that up so Your Lordship will see the  2 map that I was showing the witness.  Just part of that  3 file.  4 THE COURT:  Well there is one common point on all these maps and  5 that's Shedin Peak.  6 MR. MACAULAY:  7 Q   Yes.  There may be others but that's one.  8 Now, on this file there is a copy -- an  9 application for registration of a trapline, same date,  10 7th of June, 1946.  That's just another copy of the  11 application you enclosed with your -- your ARDA  12 material.  Look at that and look at the one you  13 enclosed.  14 A   It's the same one here.  15 Q   Yeah.  My Lord, this file comprises only the  16 application which the witness agrees is just another  17 copy of the one enclosed with his ARDA application,  18 and the map that he -- we've been discussing, and also  19 an internal -- no, a letter from -- two letters,  20 really, from an Indian agent to a game warden and a  21 letter from the game warden to the Indian agent.  I'm  22 in your Lordship's hands whether to take that letter  23 out or leave the file as we've found it, because I  24 propose to --  25 THE COURT:  What are you seeking to have put in evidence, Mr.  26 Macaulay?  27 MR. MACAULAY:  Well, the file, My Lord.  The witness has  28 identified one of the three items, that is a copy of  29 his application.  He has not identified the map and of  30 course I didn't ask him about the -- you might call it  31 your Government-to-Government correspondence.  32 THE COURT:  Well, are you tendering any of this collection of  33 documents that you handed the witness before the  34 break?  35 MR. MACAULAY:  I'm tendering that as an exhibit, My Lord, yes  36 THE COURT:  Let's deal with that first.  37 MR. MACAULAY:  All right.  38 THE COURT:  I'm not sure, I think the witness — I think the  39 witness identified his letter at the top of that file.  4 0 MR. MACAULAY:  Yes, he did.  41 THE COURT:  All right.  And he has also identified —  42 MR. MACAULAY:  The application.  43 THE COURT:  — the application.  44 MR. MACAULAY:  That's front and back.  You see the application,  45 yes.  4 6 THE COURT:  Yes, all right.  4 7 MR. MACAULAY: 5573  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Macaulay  1 Q   And he has been -- well, I can -- he has been shown  2 the map that -- I'll ask him:  Did you enclose this  3 map showing trapline 607T009 with your ARDA  4 application?  5 A   Yeah, that's what this is, my application.  6 Q   And there is another map --  7 THE COURT:  Sorry, I couldn't hear that answer.  I didn't hear  8 that answer?  9 THE WITNESS:  It's on the application, it's included in the  10 application.  11 MR. MACAULAY:  It's included in the application is what he said.  12 THE WITNESS:  Yes.  13 THE COURT:  Yes, all right.  14 MR. MACAULAY:  15 Q   And there is another map showing trapline -- I assume  16 that's the Kitwancool trapline which once was  17 registered in John Robinson's name and Mitchell  18 Douse's name?  19 A   Yes.  20 Q   And that was included with your application?  21 A   No, this is not included.  This is the only one  22 with -- that's -- are some ARDA.  I don't know how  23 that included.  Maybe these people -- because I  24 notified them right away, because I told them that I  25 inherit that place --  26 Q   Yes.  27 A   -- that's the reason why that is on there.  28 Q   Are you saying that you don't know if this map went in  29 with your application or not?  30 A   Oh, they're included that because they included with  31 that themselves.  32 Q   Who included it, you or someone else?  33 A   The -- I notified the special ARDA about that.  34 Q   Yeah?  35 A  About this land when inherit it, that's why they took  36 this in with that.  37 Q   You had never seen it before you sent your letter?  38 A  Well, there was one there from Kitwancool.  39 THE COURT:  All right.  Well, now, has the witness identified  40 the special ARDA application?  41 MR. MACAULAY:  42 Q   Now, the Part I entitled "Special ARDA British  43 Columbia Application for Assistance," is that your  44 application?  45 A   Yes.  46 Q   And it's -- now there are several pages -- page --  47 well if you count the title page, one, two, three, 5574  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Macaulay  1 page 3 has your name at the top, James S. Morrison?  2 A   Yes.  3 Q   And your address?  4 A   Yes.  5 Q   And page 4 shows this as a Gitksan company?  6 A   Yes.  7 Q   And it shows that there will be three full-time  8 people?  9 A   Yes.  10 Q   And page 5, amongst other things, says "Trapping  11 grounds have been inherited and according to our great  12 Gitksan laws"?  13 A   Yes.  14 Q   And page 6 has financial figures and refers to  15 appendix one, two, three and four?  16 A   Yes.  17 Q   And then page 7 is a Declaration by Applicant and it  18 has a signature on there and a date; is that right?  19 A   Yes.  20 Q   Is that your signature?  21 A   Yes.  22 Q   And you wrote the date, January 28th, '83?  23 A   Yes.  24 Q   And then there is appendix one, two, three and four?  25 A   Yes.  26 Q   And those were all part of your application?  27 A   Yes.  28 MR. MACAULAY:  Could these be marked, My Lord.  29 THE COURT:  Well that whole bundle of documents has all been  30 admitted by the witness and seems to me it can all be  31 the next exhibit.  32 THE REGISTRAR:  Exhibit 422, My Lord.  33  34 (EXHIBIT 422 - Special ARDA Application Bundle of  35 Documents)  36  37 THE COURT:  Now with regard to the file of -- the application is  38 already Exhibit 411.  3 9 MR. MACAULAY:  Yes.  40 THE COURT:  The only remaining question is the —  41 MR. MACAULAY:  The map.  42 THE COURT:  — the map.  43 MR. MACAULAY:  Yeah.  The witness has pointed out the defects in  44 the map.  The witness clearly doesn't -- and I don't  45 suggest that the witness drew the map.  4 6 THE COURT:  No.  Well, are you going to be able to prove the map  47 as a business document at some time? 5575  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Macaulay  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  MR.  THE COURT  MR. MACAULAY:  Yes, My Lord, we propose to.  THE COURT:  What do you say, Mr. Rush?  MR. MACAULAY:  Marked for identification.  MR. RUSH:  I take the position that it is -- it is inadmissible  as such.  The witness has made certain references to  the map and Your Lordship may want for the purposes of  being able to cross compare with the transcript what  was being referred to.  I don't think it should be an  exhibit, but I don't oppose it being made an exhibit  for identification.  COURT:  I think that's the correct position.  RUSH:  The map that I have, however, that was kindly pointed  out by Mr. Mackenzie to Mr. Macaulay, is not a  complete map, so I don't really have a complete copy  of what it is that was shown to the witness.  All right.  Well, I think the complete copy should  be the exhibit for identification and you can -- you  can keep it in your possession.  We should mark it and  then I'll turn it back to you, Mr. Macaulay, so you  can have a copy made for your friends and then you can  redeposit the original with Madam Registrar.  MR. MACAULAY:  Thank you, My Lord.  THE COURT:  So the map only will be Exhibit 423 for  identification.  THE REGISTRAR:  Be 423 for identification.  (EXHIBIT 423 FOR IDENTIFICATION - Map)  MR. MACAULAY:  Q   Now, Mr. Morrison, the returns you made, the fur  returns you made to ARDA, were they only in respect of  animals you had trapped on the Kitwancool territory?  A   Yes.  Q   You were a band counsellor at Gitanmaax many times?  A   Yes.  Q   And when you first were a counsellor, Chief Gary  Patsey was the chief counsellor, was he?  A   Yes.  Q   And you served right up to what, 1986?  A   Yes.  Q   What was your particular interest in band council  affairs?  A  Well, strictly in the reserve.  All those roads and  drainage, housing, this is what we are -- how we are  working on it, inside reserve.  Q   Right.  You weren't on the education committee?  A   Not -- there is all portfolios and it's bands that 5576  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Macaulay  1 have the committees.  2 Q   There is -- at Gitanmaax there is an education  3 committee, isn't there?  4 A   Yes, there are.  5 Q   And they look after the school?  6 A  All different, different -- when I was there I was  7 looking after water, water and sewer.  8 Q   Right.  Have you taken part in the tribal council, the  9 Gitksan-Wet'suwet'en Tribal Council affairs, business?  10 A   Yes.  11 Q   And is your particular interest the fishing aspect of  12 the tribal council's work?  13 A   Yes.  14 Q   When the Northern Native Fishing Co-operative was  15 formed, were you -- did you take an interest in that?  16 A  Well, I wasn't really involved but there is some  17 people in there that was involved on that, and then I  18 realized there was something goes on with that  19 fishing, Northern Native Corporation.  20 Q   And that Northern Native operation has three tribal  21 councils, joined together in that co-operative; is  22 that right?  23 A   Yes.  24 Q   There is the Nishga Tribal Council?  25 A   Yes.  26 Q   And then there is the Tsimshan Tribal Council?  27 A   Yes.  Coastal.  28 Q   They call it the coastal?  29 A   Coastal.  30 Q   Coastal.  But they are the Tsimshan nation?  31 A   Yes.  They would be all combined together with the  32 others, that's what it means.  33 Q   And the third tribal council involved in this is the  34 Gitksan-Wet'suwet'en Tribal Council?  35 A   Yes.  36 Q   All right.  And you have been a commercial fisherman  37 for many, many years?  38 A   Yes.  39 Q   Your father was a commercial fisherman?  40 A   Yes.  41 Q   And your grandfather was a commercial fisherman?  42 A   I don't know about my grandfather.  As far as I  43 remember was my father.  44 Q   Did your father ever tell you that your grandfather,  45 Charles Morrison, was a --  4 6 A   No.  47 Q   He didn't? 5577  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Macaulay  1 A   That's why I say I only go with my father, that's what  2 he told me.  3 Q   You went as a small boy with your father?  4 A   Yeah.  I was just a little kid because there is no  5 other way to stay any other place, because it's -- my  6 mother passed away as I stated on before.  So I was  7 with my father all the time ever since then.  8 Q   But even before your mother passed away she used to go  9 down to the coast with you and your father?  10 A  Well, yes.  Only far as remember 1936.  I remember  11 some part then before but I wouldn't say -- it's not  12 clear to me, so this is why I'm only going back 1936.  13 Q   And did your father have a boat?  14 A  Well, they rent a boat.  15 Q   Was he skipper of a boat?  16 A   Yes.  17 Q   Yeah.  And you are skipper of a fishing vessel?  18 A   Yes.  19 THE COURT:  Are you talking about a gill-netter?  20 THE WITNESS:  Yes, gill-netter, 34 footer.  And some of them are  21 28.  There is certain size of fishing boats, you know.  22 And certain size and certain type of boats, fishing  23 boats were around that time.  Some -- remember at that  24 time when -- 1936 is when they used the sailboat.  25 It's not all the same boat all the time, fishing boat,  26 there is all different kinds of fishing boat there  27 that time.  2 8 MR. MACAULAY:  29 Q   When you started as a boy, were you using sailboats?  30 A   Yeah, I was with them, just --  31 THE COURT:  Well it was a skiff, wasn't it, with a sail?  32 THE WITNESS:  Sailboat, he use the sail.  You know what a  33 sailboat is?  34 THE COURT:  Oh, yes.  35 THE WITNESS:  So it's about — I don't know what length is that,  36 but there is certain attachment on that, on the  37 sailboat, so that's where you were sailing up against  38 the wind.  3 9 MR. MACAULAY:  40 Q   But now you have a 34-foot gill-netter?  41 A   Yes.  34 and a half.  42 Q   And you have a crew?  43 A   Yes.  It's by myself.  44 Q   You run that boat all by yourself?  45 A   Yes.  4 6 Q   You don't have a crew then?  47 A   No. 557?  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Macaulay  1 Q   I see.  2 A   I don't need a crew.  3 Q   Don't need a crew.  4 THE COURT:  You have a drum now?  5 THE WITNESS:  Yeah.  6 THE COURT:  You didn't have a drum in 1936.  7 THE WITNESS:  Yeah.  You just step on it and it goes backwards  8 and you going the other way, two ways.  9 MR. MACAULAY:  10 Q   You are -- the boat you have now, is that part of the  11 Northern Native Fishing Co-op?  12 A   Yes.  13 Q   And are there many chiefs and others from the Gitksan  14 nation in the Northern Native Fishing Co-op?  15 A  Well this -- I wouldn't say all of them, but a few,  16 not too many of them.  But you know, as goes on,  17 that's what it was before.  It's never been too many,  18 it's all the certain people from different --  19 different nation.  It's not all.  2 0 THE COURT:  Do you own this boat or do you rent it from the  21 Co-op?  22 THE WITNESS:  What's that?  23 THE COURT:  Do you own this boat or do you rent it from the  24 Co-op?  25 THE WITNESS:  I own it now.  2 6 MR. MACAULAY:  27 Q   And you do food fishing on the coast as well?  28 A   Yes.  29 Q   And you get permits from the fisheries officers to do  30 food fishing?  31 A   Yes, that's what was required because all those people  32 are there, that's what they explain us on the food  33 permit.  That is why -- if you don't have permit, you  34 going to be charged with.  35 Q   Yeah.  36 A  And this is where you going to be ending in jail and  37 you going to lose your fishing.  38 Q   Right.  39 A   You going to lose all this money that you are going to  40 make, this is why they say if we don't have permit,  41 you will be thrown in jail.  And the same as up in the  42 Skeena, up to our own food fishing.  This is what's  43 required and that -- that's what I say and this is  44 what are required and this is what -- they can't  45 afford to lose time and that, this is why they have  4 6 permit.  47 Q   When is -- last year, when did the last season -- when 5579  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Macaulay  1 did the season start?  2 A   It start on -- they usually start on June 20th, but  3 since the fisheries that makes the rules and all those  4 things, and they say it's not -- not escapement, so  5 they started on the first week of July.  6 Q   Last year?  7 A  Well, pretty near every year but depending on the  8 runs.  You know, sometimes it's opened on the 17th of  9 June, to the Nass.  They all different areas are open,  10 not the same areas are open.  11 Q   Yeah.  Do you fish when -- do you take fish on the  12 Nass run?  13 A   Only if it's open.  If it's not then you can't fish  14 there.  15 Q   Right.  And the season ends the end of August?  16 A  Well, the -- this -- the sockeye season is ended on  17 either the 28th or the 25th, depending on the Sundays  18 of the month, and then it goes on to the fall fishing  19 right up to -- until October.  20 Q   Do you fish 'til October?  21 A   No.  22 Q   You don't do fall fishing?  23 A   No.  24 THE COURT:  When you say the 25th and the 28th, do you mean July  25 or August?  26 THE WITNESS:  August.  27 THE COURT:  Okay.  2 8    MR. MACAULAY:  29 Q   And then in the winter season you do trapping?  30 A   Yes.  31 Q   Starting in when the -- do you have to wait until the  32 rivers freeze up now?  33 A   Not necessarily.  You -- you are trapping, you should  34 know what time that you start at, and so you look at  35 the fur, you check the fur, see if it's thick enough.  36 And some of them -- some of them high elevation --  37 this is why we always mention high elevation and low  38 elevation -- some of those high elevation is -- is  39 started on October, but you got to check it, see when  40 it's cold.  Cold is high elevation and the lower  41 elevations start in November or late in November, not  42 exactly on the first week of November.  43 And this is when you start, this is why I know  44 when I start, not somebody tell me when to start,  45 because you are the hunter, you are the trapper, and  46 you know what time to start.  Because the value of the  47 fur, what's on the territory, which we looked after 5580  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Macaulay  1 that, because if you kill the animals before that and  2 it's half price.  And then after that you see it's 200  3 a pelt, then if you started earlier than that you  4 might only get $80 with that.  5 Q   So when you start depends to some extent on the  6 weather?  7 A   Yes, right.  8 Q   And you make that judgment?  9 A   Yes.  10 THE COURT:  Mr. Macaulay, may I interrupt, please.  I take it  11 you don't just fish in the Skeena River then?  12 THE WITNESS:  You mean onto —  13 THE COURT:  Do you fish in the Skeena River?  14 THE WITNESS:  Not — not in the Skeena River.  15 THE COURT:  You fish outside?  16 THE WITNESS:  Yes.  17 THE COURT:  Okay, thank you.  18 MR. MACAULAY:  19 Q   As a commercial fisherman, are you aware of the fact  20 there is an international treaty now, that you know,  21 between Canada and the United States about the salmon  22 catches?  23 A   There are, there is so many of them.  24 Q   I beg your pardon?  25 A   There are many.  2 6 Q   You know about them?  27 A   Yes.  28 Q   That started in what, 1983, or something like that?  2 9 A   Yeah.  30 Q   Or in '84?  31 A   Yeah.  32 Q   I may be wrong there, My Lord.  It started in the  33 1980's, anyways.  34 THE COURT:  There have been arrangements for many years.  35 MR. MACAULAY:  Not in those waters.  36 THE COURT:  Oh, those waters, that may be.  37 MR. MACAULAY:  It was the Fraser before that.  3 8 THE COURT:  Yes.  39 MR. MACAULAY:  We'll be leading evidence as to when it started.  4 0 THE COURT:  All right.  41 I'm surprised to hear you say you fish until  42 August 28th.  Rivers Inlet was always finished by the  43 end of August and you would be ahead of them?  44 THE WITNESS:  That's area — in area four I'm talking about.  45 There is a lot of areas that --  46 THE COURT:  Where is area four?  47 THE WITNESS:  Area four, right at the outside of Smith Island 5581  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Macaulay  1 there.  2 THE COURT:  Oh yes, right.  3 THE WITNESS:  But some areas are closed and some of those are  4 open  5 THE COURT:  All right, thank you.  6 MR. MACAULAY:  7 Q   When Mr. Mackenzie was asking you questions -- it was  8 yesterday, Mr. Morrison -- he was talking about the  9 Nishga claim -- he was asking you about the Nishga  10 claim, and then he was asking you about the claim in  11 the north part of the Gitksan territory.  And at  12 one -- at one point you said that the history was  13 covered up.  Do you remember saying that, the history  14 of that area was covered up?  15 A   Yes.  You mean on Gitksan?  16 Q   Yeah?  17 A   Yes.  18 Q   Now, seems to me we were -- you were then talking  19 about the area around Tuudaadii Lake when you said  20 that?  21 A  Well, I thought you meant that the northern -- Bowser  22 Lake you were talking about.  23 Q   Well, when you made that remark that the history was  24 covered up, were you talking about Bowser Lake or  25 Tuudaadii Lake?  26 A  We talking about Tuudaadii Lake.  We only talking  27 about one specific area that is -- that is where  28 Tuudaadii Lake is.  29 Q   What did you mean by "covering up the history"?  30 A  Well, see, the story tells you every -- every -- it's  31 not me to tell you about the history of all this  32 territory because I got to get permission for them to  33 tell -- I can't tell anybody unless they give me  34 permission.  35 Q   Yeah.  36 A   They can give me permission for the boundaries, we  37 point it out, this is only permission I got from them.  38 Other than that I won't tell you anything with that  39 because that's their territory.  If they ask me I  40 would.  That's our law.  41 Q   Yeah.  42 A  And it's nobody will mention this without their  43 permission.  44 Q   But you -- I understand what you are saying, but I'm  45 asking you about your comment, and I think it was  46 about Tuudaadii Lake and not Bowser Lake.  47 A  Well you got to be specific on that, what area you are 5582  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Macaulay  1 talking about.  2 Q   Okay.  Let's take Tuudaadii Lake?  3 A   Okay.  4 Q   Has the history been covered up?  5 A   Yes.  That's Nii Kyap's was mentioned, and not only  6 Nii Kyap, it's also other people that heard it in the  7 feast.  And they also mentioned -- I would say about  8 three people that would say that.  And I heard it from  9 them not only from Nii Kyap, but Nii Kyap as stated on  10 that feast at Burns Lake that there is a history  11 inside that territory, which I heard it at that time.  12 I'm sitting and listening.  13 Q   Yeah.  You heard that?  14 A  And I understand what he said, because I know it's  15 true what he said.  Not only me that that's -- that  16 heard what he is saying.  He said it for years and  17 years for many feasts because he is older person.  18 Q   But when the boundary of the Gitksan territories was  19 moved away from Tuudaadii Lake, you remember that  2 0 happened?  21 A  Well it's -- it's -- I say it's -- what I believe,  22 what I believe today is what the history was saying,  23 it's cover that area.  And it's not up to me, you and  24 I to tell where the boundary is, because that covers  25 where the history is, this is where it is.  I believe  26 that.  27 Q   You believe that Gitksan people have a right to the  28 area right up to Tuudaadii Lake?  2 9 A   Right.  30 Q   But a decision was made otherwise?  31 A  Well, it's up to two tribal groups.  32 Q   Yeah.  33 A   It's not just one person to make the decision on it.  34 Q   No, no, right.  Okay.  Now the people who live north  35 of Tuudaadii Lake, are they the Thaltan?  36 A   Yeah, they are Thaltan north.  37 Q   Thaltan?  38 A   Yes.  39 Q   And when the decision was made by the two tribal  40 groups, was that the Thaltan and the Gitksan-  41 Wet'suwet'en?  42 A   Yes.  Up in the northern boundary you were talking  43 about?  44 Q   Yeah?  45 A   Yes, there are.  46 Q   Okay.  Earlier in your evidence you mentioned a long  47 house that was at Kisgagas that you saw? 5583  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Macaulay  1 A Yes.  2 Q Was that the ancient type of long house with no  3 windows?  4 A Yes.  You can still see it on the picture part of my  5 friend here shows at that time.  But the only thing  6 that I didn't know it was that pole, but the other one  7 was still standing at that time, and I seen it when I  8 was a little boy.  9 Q But your father told you about the long house, didn't  10 he?  11 A Yes.  12 Q And that was where the chief and the subchiefs lived?  13 A Yes.  14 Q With their families?  15 A Yes.  16 Q And that's where the feast was held?  17 A Yes.  18 Q There are no long houses, the old-style long houses  19 inhabited today?  20 A None.  None today.  21 Q But you have seen models of them at K'san near  22 Hazelton?  23 A Yeah, Hazelton.  24 Q They've built a -- what's called a copy of a  25 traditional long house?  26 A Yes, there are.  27 Q Is there a Wiigyet, W-I-I-G-Y-E-T pole standing today?  28 A On what area?  2 9 Q Anywhere?  30 A I don't know.  I usually have to ask myself.  31 Q Well that's not a secret, is it?  I mean everybody  32 knows about it?  33 A Well, everybody know.  Until you see it -- I see it I  34 know.  35 Q Yeah.  But you've never seen one?  36 A No.  37 Q That was your father's house?  38 A Yes.  39 Q And you used to attend the feast with him?  40 A Yes.  41 Q Even though you were a member of a different house?  42 A Well, see, not going with feast, I'm sitting down  43 alongside him.  It's not sitting on somebody else's  44 seat.  Seats is important to Indian people.  45 Q Yes.  46 A Especially their clan, you can't sit in somebody  47 else's seat.  They all have their seats themselves. 5584  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Macaulay  1 But what I was doing that time to learn at that time,  2 I don't -- I sat alongside him between those seats  3 right on the floor or right on the ground to listen to  4 this.  5 Q Right.  6 A I don't take anybody's seats.  Because there is no  7 other way I can stay home, and I would just go with my  8 father.  9 Q Yeah?  10 A That's why I went with him.  11 Q You were a logger at one time, weren't you?  12 A Yes, I am.  13 Q Are you still logging?  14 A No.  15 Q When did you stop logging?  16 A Oh, about five years ago.  17 Q Did you have your own operation?  18 A I have once.  19 Q You did have once?  20 A Yes.  21 Q Did you have a portable mill?  22 A Not mill.  We have a —  23 Q You did -- you just -- did you cut poles, is that what  24 you were doing?  25 A Yeah, that's what we were doing, cutting poles.  2 6 Q Okay.  And when you were cutting poles, did you have  27 employees?  28 A Yes.  2 9 Q Did you have a limited company at that time?  Did you  30 incorporate a company to --  31 A No, we have our own, just private, contractor.  32 Q Just in your own name?  33 A Yeah.  34 Q And where did you cut poles when you were cutting  35 poles?  36 A Oh, we cut them north of Hazelton.  37 Q On whose territory?  38 A On Sadish Creek, Xsi maja hoo'at Creek  39 Q That's the name of the creek?  40 A Yes.  41 Q But who was -- who is -- what house had that  42 territory?  43 A Fireweed.  44 Q Well that's a clan, but what house in the fireweed?  45 A Well the -- it could be -- could be Anda'ap's  46 territory.  47 Q You are sure of that? 5585  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Macaulay  1 A  Well —  2 THE COURT:  I didn't get the name of the creek or the name of  3 the house.  4 MR. MACAULAY:  Perhaps we can stop and get the names then.  5 THE WITNESS:  Xsi maja hoo'at, about a mile north of Xsi maja  6 hoo'at, they call it Xsa iis.  7 MR. RUSH:  Perhaps we can have the spelling, My Lord.  8 THE TRANSLATOR:  Xsi maja hoo'at, X-S-I, M-A-J-A, hoo'at, H-0 —  9 THE COURT:  Sorry, M-A-J-A?  10 THE TRANSLATOR:  M-A-J-A, H-O-O-A-T.  11 THE COURT:  And the name of the house?  12 THE TRANSLATOR:  Xsa iis is the other name for it.  It's X-S-A,  13 I-I-S.  14 THE COURT:  I-I-S?  15 THE TRANSLATOR:  Yes.  16 MR. MACAULAY:  17 Q   And then the name of the house?  18 A   See he did -- he did half of those, it's not all of  19 it, part of it.  It was taken out by Hazelton Forest  20 Products at that time.  They had taken the whole area  21 right from Hazelton right up to north, was taken out  22 with those pole cutting.  It's already taken out.  23 They just give us contract to do that.  It's already  24 taken out at that time.  25 Q   Did you have a subcontract from somebody who had a  26 timber licence?  27 A   Yes.  The Hazelton Forest Products and the Hazelton  28 Sawmill, that's one of those, and you only taking  29 poles at first.  But later date they were taking logs  30 and everything's been cut off right clear, nothing  31 left.  32 Q   Did you take logs off?  33 A   No.  The -- only Hazelton Forest Products allowed was  34 to take poles, which you only taking poles that you  35 should be taking, not all of them.  But after that,  36 the logging, Hazelton Sawmill and some other loggers  37 were coming in and they clear-cut logging.  The  38 change -- whether the law change, I don't know, but  39 that's what they do.  They cut the whole -- right from  40 Hazelton right up to Kisgagas.  Now you can see there  41 is nothing left there.  That's -- that's the policy of  42 these people that been cutting off those logs, and  43 they been taking, even now, right up to Sustut River  44 it's going to be clear-cut logging there.  45 Q   When you were cutting poles, did you move around a  46 certain amount or did you always cut in the same area,  47 take the poles -- 5586  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Macaulay  1 A  Wherever the cedar sit -- standing, that's where you  2 cut it.  3 Q   Yeah.  4 THE COURT:  I didn't get the name of the house, the fireweed  5 house that --  6 MR. MACAULAY:  Oh, the fireweed house?  7 THE TRANSLATOR:  Anda'ap.  8 THE WITNESS:  That's part of it.  Not all of it, part of it is.  9 MR. MACAULAY:  Just a moment.  10 THE TRANSLATOR:  A-N-D —  11 THE COURT:  A-N-D —  12 THE TRANSLATOR:  A-A-P.  13 THE COURT:  Sorry?  14 THE TRANSLATOR:  A-N-D-A, stop, A-P.  15 THE COURT:  Thank you.  16 MR. MACAULAY:  17 Q   You are saying, Mr. Morrison, that Anda'ap -- part of  18 your cutting was done on Anda'ap's territory but not  19 all of it?  20 A   Not all of it.  Some part of this is on the other --  21 it's fireweed again but it's on the other part of --  22 which I don't know who's the chief in there but I know  23 it was fireweed's territory, I know.  24 Q   Yeah, okay.  And is that along the road towards  25 Kisgagas?  You were from Hazelton to Kisgagas that you  26 were working?  27 A   Yeah.  It's about a mile off the fishery road.  28 Q   You would go up the fishery road and then go into  29 the -- where there were the right kind of cedar trees;  30 is that it?  31 A   Yes.  32 Q   How many years did you do that?  33 A   Oh, I couldn't remember.  It's about three years.  You  34 only got a little patch of cedar, that's the only  35 thing we cut there, we don't cut anything.  36 Q   Now before you cut poles, did you ever work for a  37 logging outfit?  38 A   Yeah.  I worked with Wakefield and Kerr.  39 Q   Wakefield and Kerr?  4 0 A   Yeah.  41 Q   And what were they doing?  42 A   They cutting logs.  43 Q   What was your job in their operation?  44 A   Sometimes bucker sometimes chokeman.  45 Q   And how many years did you do that?  46 A   Oh, about two, three years in each place.  We not  47 staying into these places to work, because there is no 5587  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Macaulay  1 other work to do, because we want to be trapping, eh,  2 we trapping all the time.  And we only come in at  3 certain time before we go down the coast and work.  4 Work on certain areas then in order to keep going what  5 we are doing.  When we trap up north we came back and  6 stayed in Hazelton for two, three weeks, then we have  7 some odd jobs there while we waiting.  8 Q   Yeah?  9 A   Then we go back to the coast and then we come back  10 from the coast and we are waiting for awhile or  11 sometimes you go straight up.  You don't keep track  12 with all those things what we're doing.  But we also  13 working a little bit, not all the time, not in my  14 lifetime.  I'm doing trapping all my lifetime with --  15 but in certain place that I work on that time, there  16 is nothing else you can do.  17 Q   When you were 20 years old, had you -- by the time you  18 were 20, had you worked in a logging outfit?  19 A  Well, not all the time.  Just times when I need to  20 work on that.  21 Q   Yeah.  And your wife lives in Hazelton, does she?  22 A   Yes.  23 Q   Or lived, sorry.  Your wife, she didn't live on the  24 coast?  25 A  Well sometimes she had to come down.  26 Q   When you were on the coast?  27 A   Yes.  28 Q   She came down, I see.  Your family home, though, was  29 in -- at Gitanmaax?  30 A   Yes.  31 Q   And how long did you live there?  32 A  Well, all of my life.  It's just off and on with Glen  33 Vowell, just I stayed on this a few years, that's all,  34 but it's in the Hazelton area too.  35 Q   Well, Glen Vowell is not far from Hazelton?  36 A   Yeah, it's only six miles.  37 Q   Yeah.  Now the D.F.O. road you mentioned in your  38 evidence, that was built so that an obstruction in the  39 river could be taken away?  40 A   Yes.  41 Q   Did you see some of that work being done?  42 A   No, I never been up to where there has been work.  43 Q   But you understand that there was a landslide into the  44 river, either the Babine River?  45 A   Yes.  Xsi gwin liginsxw.  46 Q   And the salmon couldn't get beyond the landslide, that  47 was the problem, wasn't it? 55?  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Macaulay  1 A   Yes.  2 Q   And so the -- that landslide had to be removed before  3 the next season?  4 A   Yes.  5 Q   And was it removed?  6 A  Well it wasn't removed that's why there is a ladder  7 there.  8 Q   They put a ladder in?  9 A   Yes.  10 Q   And you know that a great many of the sockeye go up to  11 Babine Lake?  12 A   Yes.  13 Q   Yeah.  And that's why the ladder is there, to help?  14 A   Yes.  15 Q   To assist in that?  16 A   Yes.  17 THE COURT:  All right, Mr. Macaulay.  I have to hear an unusual  18 application now.  Gentlemen, if you would be good  19 enough to just clear away the first -- well the front  20 counsel table, and we'll adjourn for a moment while  21 counsel puts the things aside so we can use the  22 courtroom for a few moments.  23 THE REGISTRAR:  Order in court.  Court adjourned till 2:00 p.m..  24  25 (PROCEEDINGS ADJOURNED AT 12:30 p.m.)  26  27 I hereby certify the foregoing to be  28 a true and accurate transcript of the  29 proceedings herein transcribed to the  30 best of my skill and ability.  31  32  33 Toni Kerekes, O.R., R.P.R.  34  35  36  37  38  39  40  41  42  43  44  45  46  47 5589  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Macaulay  1 (PROCEEDINGS RECOMMENCED AFTER LUNCHEON RECESS)  2  3  4 THE REGISTRAR:  Order in court.  5 THE COURT:  Mr. Macaulay.  6 MR. MACAULAY:  7 Q   Mr. Morrison, you mentioned area four in connection  8 with the commercial fishing.  Is that the only area in  9 which you fished during the course of the season?  10 A   There is so many areas open in the seasons, depending  11 on the runs of these area -- salmon.  Some of them are  12 in area five, three -- and that's three, that's four,  13 five, six, you name it.  That's all the subdivided  14 area.  It is complicated.  If you know about it, then  15 you all right.  If you don't, you are going to get  16 caught and thrown in jail.  17 Q   And the closed days and hours, do they differ from  18 area to area?  19 A  Well, it depends on the run and its place where it's  20 open.  It's a complicated thing.  If you're a  21 fisherman, you should learn how to do those things,  22 otherwise you get in trouble with these -- all those  23 things like what I talked about.  Law is complicated.  24 What they are doing is just opposite, you know, what  25 the fishermen should be doing.  It's -- when you look  26 at the map, there is nothing on the map, but you know  27 where you are going, and that's where it's -- all the  28 sub-areas.  Like call it area four, that's four,  29 that's three, that's five, we go right up to ten,  30 twelve, fourteen and subdivide inside area four.  And  31 sometimes it is only open on one corner, so it's --  32 and that's two or that's three.  33 Q   And how do you determine when you are actually at sea  34 whether you are in the right quadrant of area four?  35 A   You know -- as I say, you study this, and they  36 announce it, there is three, then we know it's in the  37 corner of, say, Smith Island or out to Eddie Pass, so  38 you know it.  Otherwise, I say, if you are fisherman,  39 then you should know where to go, and if you're not,  40 you got caught there.  41 Q   And the food fishing, is that done during the close  42 periods?  43 A   Yes.  44 Q   So in an area that's closed to commercial fishing?  45 A   Yes, between --  46 Q   If you got the permit, you can food fish?  47 A   Yes, between those weeks after it's closed, all the 5590  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  J. Morrison (for Plaintiffs)  re-exam by Mr. Rush  areas were closed.  MR. MACAULAY:   Those are my questions for the witness.  Thank  you, Mr. Morrison.  THE COURT:  Thank you.  Mr. Rush.  RE-EXAMINATION BY MR. RUSH:  Mr. Morrison, I am going to ask you some questions  that relate to questions that have been asked of you  by Mr. Mackenzie and Mr. Macaulay.  In the  cross-examination by Mr. Mackenzie you were asked  about the Kitwancool high chiefs who were not part of  the court case, and these were read out to you?  Yes.  And one of the persons that was included within the  list that was read out was Wilitsxw, John Robinson?  Yes.  And that, My Lord, is number 80 on the plaintiff's  list.  :  Thank you.  A  Q  A  Q  THE COURT  MR. RUSH:  Q  A  Q  A  Q  A  Q  THE COURT  MR.  RUSH:  Q  A  Q  A  Q  A  Q  A  Were you in the same house as John Robinson on October  of 1984?  Yes.  And was he the head chief of the house at that time?  Yes.  And would you have been covered by his authority at  that time?  Yes.  I would like you to place Exhibit 383, please, before  the witness, and that is a small map, one page map.  I have it.  It's tab 20 of the green book.  Thank  you.  Yes.  You were shown Exhibit 383 by Mr. Mackenzie?  Yes.  Do you recall that?  Yes.  And you said that in an answer to a question put by  Mr. Mackenzie that Gisa An maldit is our boundary?  Yes.  And then you pointed to the words at the upper  left-hand corner just below Bowser Lake on this map of  the Kitwancool territories.  What do those words refer  to?  What does Gisa An Maldit refer to?  Well, where the Gisa An Maldit is where this  cottonwood is and all the driftwood in there too also, 5591  J. Morrison (for Plaintiffs)  re-exam by Mr. Rush  1  2  Q  3  A  4  Q  5  A  6  Q  7  A  8  9  Q  10  A  11  Q  12  A  13  Q  14  A  15  Q  16  17  A  18  Q  19  20  21  22  23  A  24  25  26  Q  27  A  28  THE COURT  29  MR. RUSH:  30  31  THE COURT  32  MR. RUSH:  33  Q  34  35  36  A  37  Q  38  39  40  41  A  42  Q  43  A  44  Q  45  A  46  Q  47  Gisa An Maldit.  Is that what the name means?  Xsa Amaldit means there is cottonwood.  And does that refer to a landmark?  Yes.  What does it refer to?  That's what it say on that, it's Gis An Maldit, and  that's what it means, that creek where they come from.  And the creek, what is the creek?  Yes, that's Gisa An Maldit.  Do you know the name of that creek in English?  No.  It's Surveyor Creek.  It's called Surveyor Creek?  Surveyor Creek.  All right.  And is the Surveyor Creek, is that the  northern boundary of your house?  Yes.  When you were asked questions about this, you made  reference to a name, Skiik'mlaxha, and that's at line  35, page 5298.  What did you mean when you used the  word Skiik'mlaxha in relation to Surveyor Creek or  Gisa An Maldit?  Skiik'mlaxha is Johnny Wilson.  That's the chief's  name, Skiik'mlaxha.  That's their territory on the  north side of that creek.  On the north side of Surveyor Creek is Johnny Wilson?  Johnny Wilson who is Skiik'mlaxha.  :  What's the number for that Indian name please?  Skiik'mlaxha, My Lord, is 509 on the plaintiff's  list.  :  Thank you.  Now, you told Mr. Mackenzie that the map, which is  marked as Exhibit 383, that it was the territory  claimed by the Kitwancool chiefs?  Uh-huh.  Now, I just want you to look at that map, if you will,  and tell me if you know if the boundary of the  Kitwancool chief runs in straight lines as shown in  this map?  It's not straight line.  What does the boundary follow, as you know it?  Height of land.  And does it follow other things?  Yes, creeks, river.  Now, at page 5310 of volume 84 of the transcript --  now, you don't have this, Mr. Morrison, and this is 5592  J. Morrison (for Plaintiffs)  re-exam by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  MR.  THE  MR.  MR.  COURT  RUSH:  COURT  RUSH:  Q  really for His Lordship.  5210?  No, My Lord, it's 5310.  Yes.  MR.  MR.  THE  MR.  THE  MR.  There was a discussion concerning certain notes that  you referred to in your examination?  Yes.  And you were asked to produce the notes of the  planning meeting which occurred in January of '83 or  January of '84, at which it was recommended that you  take the name Txaaxwok.  Do you remember that?  Yes.  And did you yourself take steps to obtain those notes?  Yes.  What did you do?  Well, I -- they ask me to go and pick up these notes,  so I went over, to take the flight from here to  Terrace.  Then did you go from Terrace over to Hazelton?  To Terrace to Hazelton and look for my notes, and here  I find that notes, so I came back and I produce that,  what they were asking for.  Did you give those notes to me?  Yes, I gave it to you.  And did you do that on Monday of this week?  Yes.  I just want to advise Your Lordship that those notes  were passed on to my learned friends by letter of  Monday, April the 25th.  And I am going to show you a  photocopy of notes which you produced.  MACKENZIE:  Excuse me, My Lord, I haven't seen the original  of those notes, and I would appreciate the  opportunity.  I also am going to object to these notes  being entered as an exhibit, if it's my friend's  intention.  RUSH:  Well, perhaps I should hear the objection.  MACKENZIE:  Perhaps Your Lordship should see the notes  before --  COURT:  I don't need to see the notes.  MACKENZIE: First point, My Lord, is I would like to see the  original before any discussion is made of these notes,  and secondly, I am prepared to make a submission.  I  am objecting to the admission of the notes.  Well, on what basis do you tender the notes, Mr.  Rush?  Well, My Lord, my -- Mr. Morrison went to the trouble  A  Q  A  Q  A  Q  A  Q  A  Q  A  Q  A  Q  COURT  RUSH: 5593  J. Morrison (for Plaintiffs)  re-exam by Mr. Rush  1  2  THE  COURT  3  MR.  RUSH:  4  5  THE  COURT  6  MR.  RUSH:  7  THE  COURT  8  MR.  RUSH:  9  10  11  THE  COURT  12  MR.  RUSH:  13  14  15  16  17  18  19  20  THE  COURT  21  22  23  24  25  26  27  28  29  30  31  32  MR.  RUSH:  33  34  35  36  THE  COURT  37  38  39  40  41  42  MR.  RUSH:  43  Q  44  45  46  47  A  to get certain notes --  :  Yes.  He was examined on them and the notes were -- I take  it he was examined because --  :  He was examined about them.  About them, right.  He was examined about them.  :  Yes.  And he was examined about them, I assume, for the  purposes of impeaching his recollection about dates  and circumstances as they appeared in other notes.  :  Yes.  And he was asked to produce them and he got them, and  in my submission Your Lordship is entitled to view the  notes that he made reference to with respect to an  issue that was raised in cross-examination, and that  is whether or not he took the name of Txaaxwok in 1984  or took it in 1983.  And I think that this goes to the  question of Mr. Morrison's understanding about the  date and about which he gave evidence.  :  Well, in the -- in view of the fact that counsel  have stated that a copy of the notes were furnished to  Mr. Mackenzie, and in view of the further fact that  Mr. Mackenzie did not pursue the matter, I have no  hesitation in saying that I would draw the inference  that the evidence that the witness leads in chief is  unimpeached.  I don't think that opens up the right of  a witness to introducing in as evidence -- the right  of a witness in chief to have introduced in evidence  his own notes.  They are self-serving and probably  subject to other objections, but for the purpose you  have described, Mr. Rush, you don't need them.  Well, I can tell you that that is part of the way, My  Lord.  I will also submit that there were certain  things that this witness did after obtaining the notes  that he advised me about that bears on the date.  : Well, as far as I am concerned, and I don't remember  what the witness said now, I would have to check  whether he said it was '83 or '84, but whatever he  said it was, it seems to me that I would be wrong if I  didn't accept his evidence in that regard, and I  propose to accept his evidence that regard.  Very well.  Mr. Morrison, I will change now to another subject.  Do you recall that Mr. Mackenzie showed you a  photograph which you identified as being John Field  School?  Yes. 5594  J. Morrison (for Plaintiffs)  re-exam by Mr. Rush  1 Q   That was tab thirteen of the provincial defendants  2 photograph book.  To your knowledge is that a school  3 which both Indian and non-Indian children attend?  4 A   Yes.  5 THE COURT: I think you told me it was on the reserve, did you  6 not?  7 THE WITNESS:  Yes, on the reserve.  8 THE COURT:  Yes.  Thank you.  9 MR. RUSH:  I wonder, Madam Registrar, if you would produce to  10 the witness exhibit 394.  That is the James Morrison  11 affidavit which is at tab one of the green volume.  12 Q   This is the affidavit that you were shown by Mr.  13 Mackenzie and this was subsequently marked exhibit  14 394.  Mr. Morrison, it dealt with the Gitanmaax  15 fishery by-law, and His Lordship questioned you about  16 the reasons for the by-law.  17 A   Yes.  18 Q   Do you recall that?  19 A   Yes.  20 Q   And I would just like to direct your attention to  21 paragraph 19 on page seven.  And I would ask you --  22 this paragraph is a reference to comments made by Mr.  23 Neil Sterritt.  24 A   Seven here?  25 Q   Yes, page seven.  And can you read paragraph 19.  I am  26 just going to read it in part.  Neil Sterritt spoke on  27 behalf of the Tribal Council, on behalf of the  28 Gitanmaax band the other bands.  In his summary of the  29 historical situation Neil Sterritt referred to the  30 1977 round-up of Gitksan and Wet'suwet'en people,  31 including Gitanmaax members, by undercover officers  32 who forced Indian people to take cash for fish.  At  33 that time 18 people were charged with 24 charges, and  34 the Gitksan and Wet'suwet'en people indicated their  35 desire to have the charges dropped and negotiate with  36 the Department of Fisheries.  Representatives of the  37 Minister of Fisheries and Oceans refused to negotiate  38 in 1977, and the cases were all fought by the Gitksan  39 and Wet'suwet'en people.  All the members of the  40 Gitksan and Wet'suwet'en people were acquitted on July  41 19th, 1978.  The history of the failure to negotiate  42 in good faith, which the Minister of Fisheries and  43 Oceans represented, has continued from that time on.  44 And I want to ask you, Mr. Morrison, if the facts as  45 stated in paragraph 19 constituted part of the reason  46 for the Gitanmaax band passing the by-law?  47 A   Yes. 5595  J. Morrison (for Plaintiffs)  re-exam by Mr. Rush  You said too, when on the same subject at page 5345 --  5345, My Lord, which is to be found at volume 85.  At  5345 you said, really in response to His Lordship's  questions to you, the question from His Lordship was:  "Only Indians could fish on the reserve, can  they not?"  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.  MR.  And you said:  "They can fish anywhere.  This is why the  problem is where we make this by-law here.  There is problems with the Fishery, losing  their nets left and right, and have the  problems, will never stop."  And my question to you is when you said "losing  their nets left and right", who did you mean lost  them, and to whom, if anyone, were they lost?  A   The Fishery.  Q   Okay.  Now, who lost the nets, firstly?  MACKENZIE: Well, I object to any of this information that is  hearsay, My Lord.  RUSH:  Well, I don't know that this line of questioning is  really any different than some of the questioning --  if this witness has knowledge of an area, then he has  knowledge of it, and we can ascertain the basis of his  knowledge.  THE COURT:  Well, if it's something that just somebody came  along and told him something happened, that's one  thing, but if it's a notorious fact within a community  in which the witness has some director personal  experience, that's another thing.  I think you should  perhaps explore the surrounding circumstances.  RUSH:  Yes.  Q   Mr. Morrison, you told His Lordship that there is  problems with the Fishery, losing their nets left and  right?  A   Yes.  Q   Just let me just ask you a few questions.  Can you  just tell me how did you know about this information  that you told to His Lordship?  A  Well, I know there's people there, like the chiefs --  I can name them if you wish.  Q   You know it from chiefs?  A   Yes.  I know it was right.  And Gitanmaax, that whole  mile there, there's people that's been cut out,  MR. 5596  J. Morrison (for Plaintiffs)  re-exam by Mr. Rush  1  2  Q  3  A  4  Q  5  A  6  Q  7  A  8    ]  MR. RUSH  9  Q  10  11  12  A  13  14  15  16  17  18  19  20  Q  21  A  22  Q  23  A  24  25  26  27  28  29  30  31  32  33  34  35  Q  36  A  37  Q  38  39  40  41  42  43  44  45  46  47  nets --  Skiik'mlaxha is one of them.  Skiik'mlaxha.  That's Johnny Wilson, is it?  Johnny Wilson and Djogaslee.  And Djogaslee?  Yes.  And that is Walter Wilson, isn't it?  Walter Wilson.  That's number 5 on the plaintiffs' list.  And was this knowledge something that you knew -- is  this something they told you, or is this something  that is widely known in the community?  It's widely known, because in that time, I forget what  year it was when we took the nets back into the  Fishery office, we went up to the -- whole  Gitksan-Wet'suwet'en people went in there and took the  nets back, where all those people that from Kitsegukla  and Hazelton, that's Gitanmaax, Kitsegukla, Kitwangar,  they all store their nets there.  The Fishery store  their nets there.  Were you present when these nets were taken back?  I was present at that time.  How many nets were involved?  Probably about ten or twelve.  It's many -- many has  been cut off and its been loose down the river.  And  what happened here is when it's loose in the river,  the Fishery cut this net out.  And they cut them off,  they didn't take the fish out, they didn't pull them  up, they just cut them off with the ropes.  And they  drifted down to the river and probably hang on to  the -- I seen it there.  We drive down to the river at  the boat sometimes.  So it's the fish back and forth  up the river, to check the river.  Also we went down  to the river and there is some nets being hanging  there with the fish on it.  Who took the nets?  Fishery.  That's fine.  Thank you.  Now, in another series of  questions, Mr. Morrison, you were asked about a  declaration that was signed by hereditary chiefs.  And, My Lord, I would like to direct your attention to  volume 85 at page 535 -- excuse me, 5349.  I am just  going to read to you, Mr. Morrison, some questions  that were asked of you and some responses, to put this  in context.  This is what Mr. Mackenzie asked you:  "Q   Now, that was a direction to the Fish and  Wildlife Branch, wasn't it?" 5597  J. Morrison (for Plaintiffs)  re-exam by Mr. Rush  1  2 This was at line 36, My Lord.  And he is here  3 referring to the Band Council Resolution that was  4 marked as Exhibit 395 and dated November the 6th,  5 1979.  6  7 "A  Yes.  I don't know if you have the other  8 copy besides this.  9 Q   What would that be?  10 A   I mean the declaration from the hereditary  11 chiefs.  12 Q   Which declaration would you be speaking  13 about?  14 A  Well, on this one.  15 Q   I don't see a reference to a declaration  16 on the Band Council Resolution, Mr. --  17 A  Maybe —  18 Q   Would you recognize the declaration if you  19 saw it?  20 A   Yes.  21 Q   I am placing Exhibit 340 in front of you.  22 This is entitled Gitksan-Carrier Declaration,  23 it is dated Kispiox, B.C., November the 7,  24 1977.  Is that the declaration that you are  25 talking about?  26 A   No, no.  That's different.  27 Q   Okay.  Thank you.  Well, there is no  28 reference to the declaration in the Band  29 Council Resolution, is there?  30 A  Well, there is one there.  That's the  31 reason why we passed this, come from the  32 hereditary chiefs."  33  34 Now, Mr. Morrison, would you recognize the  35 declaration that you are talking about?  36 A   Yes.  37 Q   I am going to produce a document to the witness.  I am  38 showing you a document that's dated October the 23rd,  39 1979 signed by two, four, five individuals.  Can you  4 0 read that document?  41 A   Yes, I could.  42 Q   Is that the declaration you were referring to when you  43 referred to a declaration at -- in your evidence  44 concerning the Band Council Resolution of November  45 6th, 1979?  46 A   Yes.  47 Q   And the names of the people that are on here, do you 559?  J. Morrison (for Plaintiffs)  re-exam by Mr. Rush  1 recognize the names?  The first one appears to be  2 Thomas Danes.  Do you know Thomas Danes?  3 A   Yes.  That's —  4 Q   Is he a hereditary chief?  5 A   Yes, he is a hereditary chief.  6 Q   And Arthur Kusick, do you recognize his name?  7 A   Yes.  8 Q   Is he a hereditary chief?  9 A   Yes, Wolf Clan.  10 Q   What about Steven Robinson, Jessie Sterritt and it  11 looks like Jim or Ian Campbell.  Do you recognize  12 those as hereditary chiefs?  13 A   Joshua Campbell.  14 Q   Oh, Joshua Campbell.  All right.  I would like that to  15 be an exhibit, My Lord.  16 THE COURT:  All right.  17 THE REGISTRAR:  Exhibit 424, My Lord.  18  19 (EXHIBIT NO. 424 -  DECLARATION DATED NOVEMBER  20 23, 1979)  21  22 MR. RUSH:  Madam Registrar, I would like you, please, if you  23 will, to refer Mr. Morrison to Exhibit 397.  And 397  24 is the —  25 THE REGISTRAR:  Tab two of the green book?  26 MR. RUSH:  Yes, that's right.  27 THE COURT:  What is it?  28 THE REGISTRAR:  Tab two in the green book, My Lord.  2 9 THE COURT:  Thank you.  30 MR. RUSH:  Thank you.  31 Q   Mr. Morrison, you were referred to the letter over the  32 Gitanmaax Band Council stationary at March -- on March  33 28th, 1984, and I would just like you now to refer as  34 well to another document that you were directed to by  35 Mr. Mackenzie, dated March the 15th, 1984, and in  36 this -- this is document, exhibit number 397, and you  37 indicated that you were -- you could identify this.  38 In this letter there is reference that is made to  39 three new policies of the Ministry of Environment.  Do  40 you see that in paragraph one?  41 A   Yes.  42 Q   Now, to your knowledge were such three new policies of  43 the Minister of Environment attached to that letter  44 when it was received?  45 A   Yes.  46 Q   This —  47 MR. MACKENZIE:  And what would be the basis of that knowledge, 5599  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  J. Morrison (for Plaintiffs)  re-exam by Mr. Rush  MR.  THE  MR.  THE  MR.  My Lord?  RUSH:  Well, what was the basis of the knowledge for his  receiving the letter.  COURT:  Well -- I don't think there is any evidence -- it's  addressed to the Band Council, which he was a member.  MACKENZIE:  Yes, My Lord.  COURT  RUSH:  Q  He may have seen it, he may not.  A  Q  A  THE  A  COURT  Mr. Morrison, Exhibit 397, can you see that there?  It's the letter from Mr. Guillion.  Do you see that?  I'm sorry, looking at the wrong letter.  This is Mr.  Guillon, Frank E. Guillon's signature, or appears to  be Mr. Guillon's signature, and it's a letter dated  March 14th, 1984.  Do you remember receiving that  letter?  Did you see that letter?  No, I don't remember this.  Okay.  I take it -- do you remember seeing any  policies that were attached to it, whether it was  attached as part of the letter or separate from it?  Well, there was other things was coming before in the  Band Office.  They always mailed on to the board some  of those.  All right.  Do you remember seeing three policies that  were referred to --  Yes.  Gentlemen, is there any problem about this?  The  letter says there were three policies attached.  Are  they missing, or is there a difficulty identifying  what they are, or is there a problem on it?  Well, I asked for them and I tried to get them and I  have made a request to see these policies.  My request  stands.  I would like to see them.  I made a request  of my learned friend.  MACKENZIE:  I am sure the Band Council would be pleased to  cooperate with Mr. Rush, and we will be too, My Lord.  Apart from the Band Council, what about the signer  of the letter?  Surely this is a matter to be resolved  between counsel, is it not?  I won't pursue that matter, My Lord.  I quite agree  with you.  Now, I just want to take you back to Exhibit 396, the  letter that was sent by the Gitanmaax Band Council on  March the 28th, 1984.  Mr. Morrison, do you know  whether or not you received a reply to that letter, or  did the band receive a reply to that letter?  I know they mentioned in the Band Council, and it  should be in the Band Council Resolution that they  MR. RUSH  MR  THE COURT  MR. RUSH:  A 5600  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  J. Morrison (for Plaintiffs)  re-exam by Mr. Rush  THE COURT  made the motion on that, whatever the policy is,  whatever they want us to do --  :  I'm sorry, the witness isn't answering your  question, Mr. Rush.  MR.  MR.  MR.  THE  MR.  RUSH:  Q  Morrison.  In terms of  A  Q  A  Q  A  Q  A  Q  A  Q  A  Q  A  Just listen to my question, Mr.  that letter that the Band Council apparently sent on  March the 28th, 1984, do you remember whether or not  there was a letter response --  Yes.  -- to that letter?  Yes.  And do you know who it was from?  Gitanmaax, from Guillion.  There was a letter response from Guillion?  Yes.  Do you know what the date of it was?  No, I couldn't remember the date it was.  It's in  winter time anyway.  Do you recall what was in the letter?  Well, about the trapline, and also many letters have  been into the office.  All right.  And we discuss it one -- at this meeting.  This is how  I know there was a letter.  Many other letters too,  which is about a dozen or two dozen letters there.  But he says that if you don't re-register your  trapline, you going to lose it, or that's what they  are saying.  And we -- there was other bands and  ourselves that we respond to them many times.  I don't  know, it's just not -- not just the first time.  MACKENZIE:  Sorry, My Lord, I think this is hearsay.  RUSH:  Thank you, Mr. Morrison.  I would like to refer the  witness now to Exhibit 400.  REGISTRAR:  Tab 15 in the green book, My Lord.  RUSH:  Q   Mr. Morrison, you were directed to this exhibit by Mr.  Mackenzie, and I -- Exhibit 400 contains this  agreement that is between the Gitanmaax Band and the  Minister and Her Majesty the Queen in right of the  Province represented by the Minister of Highways.  Were you involved in the negotiation of that  agreement?  Yes, we was the council at that time.  All right.  There is a map of -- called the  territories of the Gitksan and Carrier Indians that  was attached to this, and it's dated November the 7th,  A  Q 5601  J. Morrison (for Plaintiffs)  re-exam by Mr. Rush  1  2  3  4  5  A  6  Q  7  8  9  THE  COURT  10  MR.  RUSH:  11  THE  COURT  12  MR.  RUSH:  13  THE  COURT  14  MR.  RUSH:  15  Q  16  17  18  19  20  21  22  23  A  24  Q  25  A  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  Q  47  A  1977.  Do you know the person who represented Her  Majesty the Queen in right of the Province of British  Columbia who was involved in signing this agreement?  Did you know that man?  No.  I see.  Thank you.  All right.  Thank you.  I am going  to refer the witness now to Exhibit 402, which is tab  22 in the green book.  Now, My Lord, if I may --  : I'm sorry, did you say tab --  It's tab 22.  :  Did you say Exhibit 402 or 422?  402.  :  Thank you.  Now, do you see, Mr. Morrison, the -- they placed the  original there and a photocopy there, and this is a  permit said to be issued by Frank E. Guillion, with  your name on it, for the purposes of killing one moose  only during the closed season for sustenance for  himself and his family.  Now, that's dated January  5th, 1976.  Do you recall the circumstances around  obtaining this permit?  Yes.  What, were they?  Well, you see, when I applied for permit for a moose  and we need some food for our family -- and like  this -- as I stated many times here, when there is  something happened here in our family, then we had to  have food.  We can't afford to lose any time on this.  You see, when we are going out ourselves and we shoot  a moose, always a problem there between these people,  Fish and Wildlife and Indian people.  When you go out  and shoot a moose, and then when they caught you with  no permit, this is what they pointed out to many other  bands, particularly us at that time, if you got caught  with a moose with no permit, you are going to be  thrown in jail.  You are going to be charged.  What  else we could do.  You got to feed your family, and  you can't afford to lose time.  If you going to lose  time, your family, you need your food there.  You  can't wait for another month.  If we do go out and  shoot a moose and then they charge us, and probably  takes us six weeks or six months before we got this.  So we got no choice to do this.  This has been forced  to do that, and this is what they were saying to us.  All right.  And this is the reason why we accept this permit, 5602  J. Morrison (for Plaintiffs)  re-exam by Mr. Rush  1 because I got no other choice to feed my family.  2 Q   All right.  3 A   So this is going on.  So it's food for fish and all  4 those things, all those other things.  5 THE COURT:  You have got your answer, haven't you, Mr. Rush?  6 MR. RUSH:  7 Q   Let me ask you another question that is -- was part of  8 a series of questions that was asked of you concerning  9 the Wildlife Act and it's regulations.  On page 5372,  10 My Lord, the question was put:  11  12 "Can you agree with me --"  13  14 This is Mr. Mackenzie's question:  15  16 "Can you agree with me that the Wildlife Act  17 is passed to protect the animals, the animal  18 population?"  19 A  Well, that's what -- that's what they say  2 0 anyway."  21  22 Now, when you said "that's what they say", who do  23 you mean by they?  24 A   That's Fish and Wildlife.  25 Q   Now, at the same volume, My Lord, at -- there is a  26 reference at page 5379, Mr. Morrison.  You were asked  27 a question about Joshua McLean, and at line -- line  28 six you were asked:  29  30 "Q   You mean he —"  31  32 Meaning Joshua McLean.  33  34 "-- goes up to Kisgagas to hunt doesn't he?  35 A   Yes.  36 Q   Yes.  Anyone else?"  37  38 And then the answer:  39  40 "A   That's only person I know, maybe  41 some other people, but they have a cabin,  42 That's how I know that."  43  44 Now, my question to you, Mr. Morrison, is do you  45 know -- does Joshua McLean have a cabin at Kisgagas?  46 A   Yes.  47 Q   And you said that others had cabins at Kisgagas.  Who 5603  J. Morrison (for Plaintiffs)  re-exam by Mr. Rush  1  2  A  3  Q  4  A  5  Q  6  A  7  8  9  Q  10  A  11  Q  12  13  A  14  A  15  Q  16  A  17    ]  MR. mack:  18  19  20    ]  MR. RUSH  21  Q  22  A  23  Q  24  A  25  Q  26  A  27  Q  28  29  30  31  32  33  34  A  35  Q  36  37  A  38  39  40  41  42  Q  43  44  45  A  46  Q  47  A  else has a cabin at Kisgagas?  Myself.  What was the names?  Galsiitip Xaat --  Sorry, what was the name?  Galsiitip Xaat.  That's at that time when they build  it.  This is what I mean, which is Simgitgii geenix  now.  That's Robert Jackson, is it?  Yes.  Is there anyone else that you know of that has a cabin  there?  Well, there is Henry Wright, Wii gaak's house.  In Wii gaak's house?  He's in Wii gaak's house?  Right.  JZIE:   I think Henry Wright is deceased, isn't he?  That's the evidence.  Conforms with Mr. Morrison's  affidavit.  Mr. Henry Wright passed on, Mr. Morrison?  Yes, he's passed on.  Are there members of his cabin that have a cabin?  Wii gaak.  Still remain in Wii gaak.  And who now has the cabin now?  That's N. B. Sterritt.  Now, Mr. Morrison, you were asked some questions by  Mr. Mackenzie concerning your knowledge of your  brother Sam Morrison's trapping territory at Xsi  Maahla Sa Giiblax or the northern Waiget territory,  and you said that you did not know when Sam trapped at  that territory.  My question to you is did you trap  there with Sam?  Yes, I was trapping with him.  Do you know when you were with Sam at the territory  when he was trapping?  Well, I remember that when we started in '36, '37,  '38, '39, '40 and so on, as I say, back and forth in  two territories there, which in maybe one year that we  in southern territory in spring, so in fall in the  same year up north.  I think you said that you were last on the territory  at Xsi Maahla Saa Giiblax or the northern Waiget  territory in 1952?  Yes.  Were you there with Sam at that time?  No, Sam and my mother was there at 1952. 5604  J. Morrison (for Plaintiffs)  re-exam by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  Q   Were you there in 1952?  A   No, I was on the other territory.  Q   You were on the southern?  A   Okay.  Q   Now, do you know whether members of the house or the  family were at -- trapping at Xsi Maahla Saa Giiblax  after 1952?  A   Yes, in 1958 I believe was not the same house --  MR. MACKENZIE:  I am going to object to any of this evidence  that is not the witness's personal knowledge.  And in  my submission, My Lord, my friend had the opportunity  and did go over resource harvesting activities on the  territory in great detail, or attempted to in his  examination in chief, and I, of course, I crossed  examined on that evidence in my cross examination.  Now it seems to me we are going over that subject  again.  MR. RUSH:  The reason I raised it again, My Lord, was the -- a  series of questions which resulted from, I think, a  difference between the witness and Mr. Mackenzie over  the exactitude of the dates.  And in my submission  that was a question that was not resolved, although I  do agree that it was canvassed in part in chief and it  was canvassed again in cross, but I say that because  of the ambiguity that arose over whether Mr. Morrison  was answering questions to a specific date or to a  time in general, that it is necessary for me to  re-examine on it.  THE COURT:  Well, I have no way of knowing what the right thing  to do here is.  Re-examination is always such a  terrible burden to us.  It seems to me that this is  your burden.  This has been covered.  I have to put  some reasonable restraints on the extent of  re-examination.  This clearly is a matter that you  assumed was part of your burden.  I don't think it's  proper re-examination.  MR. RUSH:  I will move onto another subject then, My Lord.  Q   Mr. Morrison, a question was asked of you by Mr.  Mackenzie concerning a meeting between some Gitksan  chiefs and some people from the Dene'.  And the  question that was asked of you was -- and this is at  5440, line 28:  "The Dene' people ..."  This is the  question:  "Q   The Dene people said that the Moose  Valley belongs to them?  A   Not Dene.  These Nii Kyap people are from 5605  J. Morrison (for Plaintiffs)  re-exam by Mr. Rush  1  2  3  4  5  6  A  7  8  Q  9  10  A  11  12  Q  13  14  A  15  Q  16  17  18  19  20  THE COURT  21  MR. RUSH:  22  THE COURT  23  MR. RUSH:  24  Q  25  26  27  28  29  30  31  A  32  Q  33  A  34  35  Q  36  37  A  38  Q  39  A  40  Q  41  A  42  43  44  45  46  47  Gitksan people."  My question to you, Mr. Morrison, is when you were  referring to the Moose Valley, where is the Moose  Valley that you were making reference to?  It's near Tuudaadii Lake.  It's about two or three  miles near the lake there.  Is that a short or a long valley?  Can you give us  some sense of the size of it?  It's a valley right from Johanson Lake right up to  head of Tuudaadii Lake.  And is that east or northeast of the northern Waiget  territory?  Yes, that's northeast.  Now, Mr. Morrison, you told Mr. Mackenzie yesterday, I  believe, that the boundary, as drawn on map 30C -- and  that's in the grey book, I believe -- no, it's not.  The blue book.  Yes.  Set that aside for a moment.  Just show you this.  :  What tab please?  This is tab 30C of the blue book, My Lord.  : Thank you.  Now, you were shown this yesterday by Mr. Mackenzie,  and you told him that the boundary as drawn on the map  30C showing the extent of the Gitksan-Wet'suwet'en  claim in this lawsuit has been moved, you told him,  between 1984 and 1988.  And my question to you, Mr.  Morrison, does that mean that the territory owned by  the Gitksan houses in the same area has changed?  Yes.  You see, there are two -- it was changed in '84.  Yes.  Well then, the other sides was the boundary of Nii  Kyap.  Okay.  You said on the other side is the boundary of  Nii Kyap?  Yes.  Did the boundary of Nii Kyap change?  Doesn't change.  When you say it doesn't change, what do you mean?  Well, I mentioned about the history of Nii Kyap.  You  see, these people are moving back and forth, they ones  that didn't know about it.  That's the one that moving  back and forth on that.  But Nii Kyap was telling the  history, as I just stated on the last before noon.  That was -- tell the story by Nii Kyap, history of Nii  Kyap.  And he stated on to that where the meeting was, 5606  J. Morrison (for Plaintiffs)  re-exam by Mr. Rush  1 and that's what will take place at that time.  2 Q   Now, you said something to Mr. Macaulay this morning,  3 which is found at page 5503 at line -- beginning at  4 line 31.  You were asked a question about this,  5 although without reference to the questions that were  6 put by Mr. Mackenzie.  This is 5503, My Lord, volume  7 87.  This is -- perhaps I will start with question 26.  8  9 Q   Now, the boundary was moved from the  10 Tuudaadii Creek area south to the height of  11 land at Diagonal Mountain, wasn't it?  12 A  Are you talking about internal boundary or  13 outside boundary?  14 Q   External boundary.  15 A   Yes.  You see, this hasn't been changed.  16 Q   It hasn't been changed?  17 A   It hasn't been changed.  18 Q   That territory extended up to Tuudaadii  19 Creek in 1984, didn't it?  20 A  Are you talking about this territory?  You  21 say you talking about this territory?  22 Q   Yes, territory B.  23 A   Yes.  Okay.  Right.  24 Q   The boundary was along Tuudaadii Creek in  25 1984, wasn't it?  26 A   Yes.  27 Q   Yes.  And it was moved south, wasn't it?  2 8 A  Well, I didn't know it was moved.  29 It's -- it's the -- the same.  They cover it  30 up, the history that I know that -- it's still  31 the same.  It's never been changed."  32  33 Now, Mr. Macaulay asked you about that this morning,  34 about use by the word -- by you of the words "they  35 cover it up."  Do you remember him asking you that?  36 A   Yes.  37 Q   And then this morning you said to him "we were talking  38 about Tuudaadii, it's not me to tell the story".  And  39 I'm just paraphrasing here.  "It's not for me to tell  40 the story without permission."  Nii Kyap's history was  41 mentioned.  And then you said "What I believe that the  42 history covers that area", and that's what you said  43 this morning to Mr. Macaulay.  Now, when you said to  44 Mr. Mackenzie yesterday that "They cover it up, the  45 history that I know that it's still the same", and  46 when you said "What I believe that the history covers  47 that area", can I ask you, Mr. Morrison, what did you 5607  J. Morrison (for Plaintiffs)  re-exam by Mr. Rush  1  mean when you  2  area?  3  A  Well, that's  4  about on that  5  this is what  6  at that time,  7  I understand  8  about.  This  9  Q  The area that  10  A  Yes, at --  11  Q  Did you mean  12  of Nii Kyap?  13  A  Yes.  14  Q  Is that what  15  A  Yes.  16  THE COURT  :  We will adj  17  MR. RUSH:  Thank you.  18  19  (proc:  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  use the word cover up or cover that  the history that they have been talking  area.  You see this land of Nii Kyap,  I understand, and the crest has been told  the history of Nii Kyap, and that's how  that -- that's that area we been talking  is what -- how I understand it.  was being referred to --  to say that it was covered by the history  you meant?  ourn for a few minutes, Mr. Rush, please.  (PROCEEDINGS ADJOURNED FOR A BRIEF RECESS)  I HEREBY CERTIFY THE FOREGOING TO  BE A TRUE AND ACCURATE TRANSCRIPT  OF THE PROCEEDINGS HEREIN TO THE  BEST OF MY SKILL AND ABILITY.  LORI OXLEY  OFFICIAL REPORTER  UNITED REPORTING SERVICE LTD. 560?  J. Morrison (for Plaintiffs)  Re-exam by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  (PROCEEDINGS RECONVENED AT 3:20 p.m.)  THE REGISTRAR:  THE COURT:  MR. RUSH:  Q  Mr.  Order in court.  Rush.  Thank you.  Mr. Morrison, I want to show you Exhibit 422 which  is the letter to the Special ARDA Branch together with  the application for special ARDA assistance.  Do you  have that in front of you, document -- you see that in  front of you?  A   Yes.  Oh, this is not the --  Q   This is the letter that you signed for special ARDA  application?  A   Oh yes, right.  Q   Yes.  Okay?  What did you -- Mr. Morrison, what did  you intend to do with the assistance received from  Special ARDA?  What was the intention behind sending  in this application?  A  Well, to get all this what was listed here.  Q   And what is it that's -- is that in exhibit -- is that  what's shown in Appendix 4, is that what -- where it  says "Needs"?  A   Yes.  Q   Okay, I'm just showing you Appendix 4.  Can you read  that?  See it says "Notes for Txaax wok Trapping  Company Special ARDA Application, Appendix "4",  Needs"?  A   Yeah.  Q   Is that what you intended to obtain with the  assistance from Special ARDA?  A   Yes.  Q   It was?  A   Yes.  Q   Okay.  There it says in item number three, I take it,  materials for cabin?  A   Yeah.  Q   Was -- were you intending to build a cabin?  A   Yeah, I was building a cabin then.  Q   Where was the cabin?  A   Right in the outlet of that lake.  Q   Of which lake?  A  Meziadan Lake.  Q   Okay.  This was  Lake, was it?  A   Yes.  Q   Okay.  Now, did  on Txaax wok's territory at Meziadan  you receive approval for the  for 5609  J. Morrison (for Plaintiffs)  Re-exam by Mr. Rush  1 this assistance?  2 A   Yes.  3 Q   And did you receive the money?  4 A   Yes, it went to this list.  All the list that was  5 here, they didn't --  6 THE COURT:  $28,000?  7 A  Around that area.  They holdback on that, there is  8 certain ways of holding back.  The senders of that was  9 holdback until the last day.  10 Q   And did you construct a cabin?  11 A   Yes.  12 Q   Okay.  And did you use -- have you utilized the  13 various items such as the ski-doos and the traps that  14 are indicated there for the purposes of carrying on  15 trapping and hunting?  16 A   Yes.  17 MR. RUSH:  Those are my questions.  18 THE COURT:  Thank you.  19 MR. MACAULAY:  My Lord, this may lead — I doubt, but it may  20 lead to another question by my friend.  I took the  21 Exhibit for Identification No. 423 to have copied and  22 my friends have copies.  As I understand it, it's only  23 the map, is that right, My Lord, that's marked?  24 THE COURT:  I believe so.  2 5 MR. MACAULAY:  I had showed Your Lordship the file and I had  26 recited what was in the file.  2 7 THE COURT:  Yes.  28 MR. MACAULAY:  When I got the original file, that is the — this  29 is a —  30 THE COURT:  Lawyer's file.  31 MR. MACAULAY:  Beg your pardon?  32 THE COURT:  A lawyer's file.  33 MR. MACAULAY:  A lawyer's file, right.  There was another map  34 which was in behind the yellow copy of the original  35 application.  3 6 THE COURT:  Yes.  37 MR. MACAULAY:  I would not have put that to the witness, but the  38 witness might have been entitled to look at it.  My  39 friend, Mr. Rush, has a copy now and Mr. MacKenzie  40 too.  I leave it at that.  It's -- it's an earlier map  41 and it bears the name Sam Morrison.  Your Lordship  42 will remember the witness gave evidence that Sam  43 Morrison, his brother, was the previous --  44 THE COURT:  I don't see any reason why you shouldn't put the map  45 to the witness incase he wants to say something about  46 it, unless somebody objects strenuously.  47 MR. MACAULAY:  This is the other map. 5610  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Macaulay  1 THE COURT:  Yes.  If he can recognize it and it will be of any  2 assistance.  3 MR. MACAULAY:  And the original doesn't — of the map I did put  4 to him, the only difference between what he looked at  5 and Your Lordship looked at of the original is there  6 is some coloured lines, but I don't know if that adds  7 anything.  I'm show him that too.  8 THE COURT:  Certainly, all right.  9  10 CROSS-EXAMINATION BY MR. MACAULAY:  11 Q   Mr. Morrison, when I was showing you a file with a map  12 in it, do you remember that map and you made some  13 comments?  I remember one of them was that there was  14 no name on this lake over here, what seems to be a  15 lake, and there -- you commented on the straight line  16 on the right-hand boundary?  17 A   Yes.  18 Q   Well, all this is is the -- what appears to be the  19 original.  It has some coloured lines.  I don't know  20 if you want to make a comment on that.  And in the  21 file also, another map with your brother's name typed  22 at the top, and you'll notice that it's the same  23 co-ordinates, longitude and latitude, but a different  24 configuration.  So if -- I'm just inviting you to say  25 whatever you want to say, I'm not asking you a  26 question about them.  These -- this other map with  27 Sam -- the name Sam Morrison on it, or the coloured  28 version of this one you've seen.  29 A  What's this red line about?  Means to?  30 Q   I don't know what it means.  31 THE COURT:  Do you recognize it, Mr. Morrison?  Have you ever  32 seen it before?  33 THE WITNESS:  No, no.  34 THE COURT:  All right.  35 MR. RUSH:  It should be pointed out, My Lord — I'm sorry, I  36 thought that the co-ordinates weren't the same but  37 they apparently are.  3 8 MR. MACAULAY:  The co-ordinates?  39 MR. RUSH:  Appear to be the same.  40 MR. MACAULAY:  Are the same.  The other map just goes to the  41 two -- a little father east, it goes to 127.20,  42 whereas the one we were looking at goes to 127.30.  43 THE COURT:  All right.  4 4 MR. MACAULAY:  Only.  45 THE COURT:  Well you have put the map to the witness and he  46 doesn't recognize it.  If you -- seems to me you've  47 satisfied whatever requirements there are for proving 5611  Proceedings  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.  THE  MR.  THE  MR.  THE  MR.  THE  MR.  THE  MR. RUSH  THE  MR.  THE  MR.  THE  MR.  it extrinsically at some future time if you are so  minded.  MACAULAY:  Yes, My Lord.  COURT:  Time will tell.  It's fair the witness should have  seen it.  MACAULAY:  Counsel has copies of both maps now.  COURT:  All right.  MACAULAY:  And this is available for anybody's inspection  and use.  COURT:  All right.  MACAULAY:  But now I'm in Your Lordship's hands about --  about -- I don't think there is any difference,  really, between 423 and the one that has some colours  on it.  COURT:  Well I'll remember the occasion, Mr. Macaulay, and  if you want to --  MACAULAY:  I don't want to guild the lilly or put colours on  it.  COURT:  Please.  MACAULAY:  Thank you, My Lord.  COURT:  Thank you.  All right.  Thank you, Mr. Morrison, you  are excused from further attendance at this trial  unless you are called again.  (WITNESS EXCUSED)  Anything -- oh, I'm informed that this room will  not be used during the next three days and so counsel  can leave their things here if they wish.  There is  only two keys, Madam Registrar has one and I have one,  so if you need to get in Madam Registrar can assist  you, and you can, of course, take your things with you  if you wish.  Is it convenient to inquire whether -- what  counsel think about the week we were supposed to be  down, the week after next?  My Lord, our estimate is that the two witnesses who  will be called next --  Yes.  -- will probably between them take about six to seven  days .  Yes.  And our proposal is that the two witnesses commence  on -- well, one commence on Monday.  Yes.  And the -- proceed through to the end of that witness  and begin the second and finish the second witness in  the following week, and we anticipate it will be on  Tuesday.  COURT:  RUSH:  COURT:  RUSH:  COURT:  RUSH: 5612  Proceedings  1 THE COURT:  Yes.  2 MR. RUSH:  That that witness will be completed.  So we are  3 suggesting that we take up two of the days of the  4 following week for that purpose.  5 THE COURT:  Have counsel discussed this and is that convenient?  6 MR. MACAULAY:  Well it hasn't been discussed so far as I know,  7 but we will be here.  8 THE COURT:  Yes.  Mr. Mackenzie?  9 MR. MACKENZIE:  There is some reluctance on the part of my  10 learned senior, My Lord.  I wonder if it might be  11 possible to canvass this again on Monday?  12 THE COURT:  Yes, yes, I think that's — I wouldn't commit  13 anybody to anything just at the moment.  All right,  14 I'm certainly agreed with what you propose, Mr. Rush,  15 but if -- Mr. Goldie is going to be taking these two  16 witnesses -- or take the second one?  17 MR. MACKENZIE:  Yes, the second one.  Yes, he'll be taking the  18 second one, that's right.  19 THE COURT:  Well, I would not impose on counsel who have made  20 plans to be elsewhere such as the case at this late  21 date, and if he is committed elsewhere then so be it.  22 But I'll certainly be happy to sit for the two days or  23 so as suggested by Mr. Rush, if it's convenient to  24 everyone to do so.  And you might, perhaps, let Mr.  25 Rush know as soon as you can, Mr. Mackenzie, or  26 someone on your side so that Mr. Rush can know as soon  27 as possible what you are -- what your conclusion is in  28 that regard.  29 MR. MACKENZIE:  Yes, My Lord.  30 THE COURT:  Mr. Rush, the documents that I have on my table, are  31 they likely to be useful in connection with the next  32 witness or may they conveniently now be taken away?  33 MR. RUSH:  I think they will not be useful.  34 THE COURT:  Yes, all right.  35 MR. RUSH:  From my standpoint.  I did, however, want to make  36 just a couple of points.  A couple of loose documents  37 were handed up to you and not identified and I think  38 that they should --  39 THE COURT:  Well, I have two exhibits here, they are the only  40 ones I know of except for this excerpt from the  41 plaintiff's video tape.  42 MR. RUSH:  Yes, that's one.  43 THE COURT:  That's the only one I have.  4 4 MR. RUSH:  Yes.  45 THE COURT:  And I think it should be returned to Mr. Mackenzie.  46 MR. RUSH:  Yes.  I think there were some that were handed up to  47 you and never identified, and I think they should be 5613  Proceedings  1 returned.  2 And the other thing that I wanted to mention was  3 that Mr. Macaulay handed up the file which was -- the  4 only aspect of which was the -- the exhibit was the  5 map, and I think that should be the sole exhibit.  6 THE COURT:  That's the only one that was marked, yes.  7 MR. RUSH:  And nothing more.  8 THE COURT:  Yes.  9 MR. RUSH:  Apart from that, My Lord, I think that the evidence  10 of the next two witnesses will not bear on the subject  11 matter of these -- for the most part, I don't say in  12 totality.  13 THE COURT:  Yes.  14 MR. RUSH:  Will not bear on the subject matter of these  15 documents.  16 THE COURT:  I will have these taken away.  I regret to have to  17 inform counsel I will not be able to sit on Friday,  18 May the 20th.  Perhaps counsel won't mind having a day  19 off when it's a Friday.  There is a matter that I've  20 been committed to for a long time, it's a double grand  21 calling admission ceremony which I've been scheduled  22 to take for some time, and it's been customary to take  23 that large call in May.  So I've committed myself to  24 do that, and there is one in the morning and one in  25 the afternoon so it's an all day ceremony.  26 All right, we'll resume next Monday morning and I  27 wish counsel a pleasant intervening few days.  28 THE REGISTRAR:  Order in court.   This court stands adjourned.  29  30 (PROCEEDINGS ADJOURNED AT 3:35 p.m.)  31  32 I hereby certify the foregoing to be  33 a true and accurate transcript of the  34 proceedings herein transcribed to the  35 best of my skill and ability.  36  37  38  39  40 Toni Kerekes,  41 O.R., R.P.R.  42 United Reporting Service Ltd.  43  44  45  46  47


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