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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1988-05-05] British Columbia. Supreme Court May 5, 1988

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 5820  1 Vancouver, B. C.  2 May 5, 198 8.  3  4 THE REGISTRAR:  In the Supreme Court of British Columbia, this  5 Thursday, May 5th, 1988. Delgamuukw versus Her Majesty  6 the Queen, at bar.  7 THE COURT:  Mr. Goldie?  8 MR.GOLDIE:   I wonder if my friend could speak to the question  9 of witnesses after Mr. Muldoe.  Yesterday I stated we  10 hadn't received a summary or any supporting  11 information with respect to Mr. Muldoe but we were  12 served with that last night.  But that still leaves us  13 with the concern with what follows Mr. Muldoe.  14 THE COURT:  Mr. Muldoe is the next witness.  15 MR. GOLDIE:  Next but one.  16 THE COURT:  Are you able to assist us, Mr. Grant?  17 MR. GRANT:  I want to advise in terms of scheduling, on the  18 assumption that Mr. Marsden, the next witness, will be  19 completed by Tuesday, Mr. Muldoe will take the balance  20 of the next week, we anticipate, that is the week  21 starting the 16th of May, and I have to consult with  22 Mr. Rush regarding the scheduling after that in terms  23 of the order of the witnesses and in terms of which  24 witnesses are called.  There is one or two questions  25 but I wish to advise that I will be able to deal with  26 that before the end of the week and advise.  27 THE COURT:  This week?  28 MR. GRANT:  Yes, before the end of this week and advise the  2 9 court and my friend regarding that.  Right now I can't  30 because there is some questions that I have to consult  31 with my -- with both counsel on regarding that matter.  32 MR. GOLDIE:  I take it these are all lay witnesses that my  33 friend is speaking about?  34 MR. GRANT:  The next series of witnesses?  35 MR. GOLDIE:  Yes.  Yes, we are still in the lay witness stage.  And we will be for the rest of --  I believe Mr. Rush indicated to the court, and I  39 have a matter to deal with that I propose to both Mr.  40 Macaulay and to Mr. — to Mr. Macaulay and to Mr.  41 Goldie regarding commission evidence.  Which Mr.  42 Goldie suggested of course couldn't be agreed to by  43 counsel and I have sort of --I have made a proposal to  44 them and and I am going to speak to that matter while  45 Mr. Goldie suggested yesterday, I will speak to it  46 today after we have deal with the motions.  Then I was  47 doing to explain that.  Given that proposal, depending  3 6 MR. GRANT  37 THE COURT  3 8 MR. GRANT 5821  1 how the court feels about that proposal on commission,  2 I believe Mr. Rush's anticipates that the balance  3 until the end of June is lay witnesses.  4 THE COURT:  All right.  5 MR. GOLDIE:  The first motion I propose dealing with, my lord,  6 is the application under Rule 26 for a direction that  7 the plaintiffs produce band council resolutions.  8 Would you hand that up to his lordship?  I have  9 prepared a book which contains the Notice of Motion.  10 MR. GRANT:  My lord, just so that I don't — my friend gave me a  11 book yesterday regarding the amendment motion.  He  12 didn't give me this book on the band council  13 production.  I just wish to advise my friend that I,  14 in dealing with the second motion or dealing with this  15 motion, the 26(10) motion that there is an affidavit  16 presently being photocopied and brought over.  And I  17 was operating on the assumption that that was going to  18 be the second motion.  It's just being run off now.  19 So if he wishes to proceed with this, that's fine, but  20 he may wish to proceed with the other one.  I operated  21 on the assumption that just logistically -- it hasn't  22 been copied, that's all.  23 THE COURT:  What do you want as to do, Mr. Goldie?  24 MR. GOLDIE:  I think I will proceed with my this one, my lord,  25 and my friend may benefit from my submission.  The  26 only thing the book contains is the excerpts from the  27 transcript, that's all.  2 8 THE COURT:  All right.  29 MR. GOLDIE:  The application, as I have mentioned, is whether  30 the plaintiff should produce band council resolutions.  31 The Notice of Motion is under tab 1 of the book, and  32 the supporting affidavit is under tab 2 and it  33 exhibits correspondence between the parties relating  34 to band council resolutions.  I don't propose reading  35 these letters.  They are exhibitted to indicate to  36 your lordship that for some time the question of the  37 relationship of the band councils to the plaintiffs,  38 that is to say the hereditary chiefs and the members  39 of their houses, has been a matter of interest and  40 concern to us.  And the position taken by the  41 plaintiffs has heretofore been that the band councils  42 are separate entities, and that the -- their doings,  43 if I may put it that way, are not relevant to the  44 issues before your lordship.  45 I want to make it clear that my position is a  46 narrow one.  And to take Mr. Dan Michell as an  47 example, the question is whether he, and others like 5822  1 him, can testify here as a hereditary chief, without  2 disclosing the resolutions that deal with the matters  3 in issue here having a special regard to the fact that  4 he, and Dora Wilson-Kenni and Mr. Vernon Smith, have  5 all been in positions of responsibility in the band  6 councils.  In fact each one of them has been, as I  7 understand it, been a chief councillor.  I am sorry,  8 Ms. Wilson-Kenni is a band manager.  And Mr. Vernon  9 Smith is also.  10 MR. GRANT:  Of Kitwancool.  11 MR. GOLDIE:  Of Kitwancool.  We say, the submission is that in  12 that capacity, they have received documents which are  13 relevant, and Mr. Michell's case, the document was a  14 circular letter addressed to chiefs of British  15 Columbia and it referred to the B. C. Special Fund, an  16 annual appropriation of parliament for a purpose  17 relevant to this litigation.  He has stated that this  18 letter, if he received it and others on the same  19 subject, would be in the files of the band council.  20 That -- he has given that evidence, and upon request,  21 he was -- the documents were produced by my friend,  22 but without prejudice to his later position on the  23 question of whether they had to be produced.  24 Now, Mr. Michell, of course, is a hereditary chief,  25 he is a plaintiff in the action.  And the issue is  26 whether, again taking him as an example, whether he is  27 in a position where he must disclose all documents  28 relating to the B. C. Special Fund and the issues  29 which are relevant here.  30 Now, the evidence that I rely upon supports the  31 assertion that the band councils are the alter egos of  32 the hereditary chiefs.  And I am not going to read all  33 of the evidence, but I refer under tab 3 to some of  34 the evidence of Mr. Michell, firstly at page 3767.  35 Well, perhaps I should start with page 3761.  The  36 relevant parts run from line 14 on page 3761 to line  37 44 on page 3762, both in volume 61.  And Mr. Michell  38 was asked:  39  40 "Q   During your period as chief councillor, were you  41 aware of a special appropriation by the federal  42 government of $300,000 a year to B. C.'s non-treaty  43 Indians.  It was call the B. C. Special, have you  44 heard that expression before?  45 A   Yeah. I have heard it."  46  47 Then I go on to ask him some particulars about that 5823  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  and at line 42, the question:  Q   "But the band can say how it's to be used?  A   Yes."  And then I put to him the annual appropriation for the  year 1987-88, and -- or the per capita appropriation  of $4.40, and he said, this is page 3762, line four,  A    "I wouldn't know that because I left the office  before that information.  Q   You left office in what, May of 1987?"  And then at line 11 ".  "Q   But you do recall there is a sum available to  each band enclosing included your band out of this  so-called B. C. Special fund?  A   Yes."  Then a request was made for -- well, I put a letter to  him.  Now, the next one I want to refer to is at page  3767, it's under the same tab, begins at line 18, and  goes to line three at page 3767, and this gets into  the question of the relationship.  "Q   But it's your evidence that the band council does  that sort of thing at the direction of the  hereditary chiefs?"  And that's talking about resources.  "A  Well, everything, like I say, you know, like for  in some cases they are not.  Q Such as the water licence?  A  Well, like for anything that comes from Indian  Affairs.  You know.  They give us the direction.  First of all, like what you just talked about  earlier that's a B. C. Special.  They have the  regulation and guideline and they put it in front  of you and you just follow that.  Q   Well, —  A  Which is in your word you said that you used cat's  paw.  Q   Yes?  A   That's what we are to the Indian Affairs in most  case. 5824  1 Q   I am sorry, I interrupted you, had you finished?  2 A  And the same way dealing with some of these things  3 arises from dealing with government you, you know,  4 we have to deal separately sometimes.  5 Q   I used cat's paw in relation to the hereditary  6 chiefs, and I meant by that that you were the agent  7 of the hereditary chiefs?  8 A   Yes.  Sometimes we operate like that under the  9 Indian Affairs.  10 Q   So sometimes you operate as the agent of the  11 Indian affairs?  12 A   Yes.  13 Q   And sometimes you operate as an agent of the  14 hereditary chiefs; is that right?  15 A   Sometimes government."  16  17 And at pages 3783 to 3784, under tab 4, there is  18 reproduced some of the submissions that were made to  19 your lordship in the course of requesting production  20 of the band council documents, which were later  21 produced.  And I said at that time, on page 3784, line  22 17:  23  24 "My lord, with respect to the B. C. Special matter,  25 I will await further advice from my friend but I  26 anticipate asking your lordship to make a direction  27 under Rule 26(1)."  28  29 And I think there I was talking about listing the  3 0 documents.  31  32 "Based on the fact that the band council documents  33 are under the control of the plaintiffs but I will  34 leave that."  35  36 And that was not pursued at the time because some  37 of the documents were produced.  38 And then at page 3786, lines 21 to 37:  39  40 Q   Mr. Michell, yesterday I was asking but about the  41 band council's regulation, regulation of activities  42 on the reserve and I think you agreed with me that  43 Sports fisherman require a permit and so on and so  44 forth.  My attention has been drawn to exhibit 179.  45 I wonder if that could be placed before the  46 witness.  179, my lord, is a letter from the  47 Ministry of Citizenship and Immigration, dated 5825  1 August 16th, 1962, stating that:  'The attached  2 by-law number 1 to provide for the preservation,  3 protection and management of game in the Moricetown  4 Indian reserve number 1 in the Province of British  5 Columbia is in force.'  You were a councillor at  6 the time that was enacted?  7 A   1986."  8  9 Then I went on at the next page, and page 3790, that  10 is, four pages further on, but it's the next page  11 under the tab, line 25 to line 47, page 3791, where  12 documents that were produced as having been  13 received by the band council in respect of the B.  14 C. Special, were -- the witness was cross-examined  15 with respect to them, and the documents were marked  16 for identification.  17 And then at page 3792, beginning at line five, the  18 witness was -- had placed before him a band council  19 resolution dated May 1st, 1974, which had to do with  20 traplines.  Now, the discussions up until now, my  21 lord, had to do with the B. C. Special Fund and the  22 documents relating to it.  But here there was a band  23 council resolution which had found its way into a  24 trapline file, and Mr. Michell was being examined with  25 respect to it.  And at line 36, after reading from the  26 document, the question was put:  27  28 "Signed Johnny David.  Now do you recall what that  29 resolution was doing, was it authorizing or  30 approving the transfer of a trapline or was it  31 adding to the company, or just what was it doing to  32 your recollection?  33 A   This trapline was registered under Johnny David  34 and apparently Johnny David's father was Laksamshu.  35 Q   Yes?  36 A  And the people of that clan there, Laksamshu, they  37 make up a petition, they want it back and they want  38 it to be on somebody else name.  There is relatives  39 living in Burns Lake.  They want it on their name,  40 so they go back to the proper house."  41  42 Then he went on to say that there was a decision at a  43 feast hall and line 8 at 3793:  44  45 "Q   This was a decision of these particular people?  46 A   Yes.  47 Q   And was not a requirement of the Fish and Wildlife 5826  1 people?  2 A   No.  So we went and supported that with a band  3 council resolution."  4  5 If I may pause there, the point, my lord, is that the  6 plaintiffs in this case, amongst other things, allege  7 jurisdiction and control over natural resources.  And  8 here we have a band council resolution being adopted  9 as the means of asserting ownership in that trapline  10 and they do not say it was a requirement of government  11 that there be a band council resolution.  Of course  12 this was a resolution that was directed to a branch of  13 the Provincial Government.  14 And at line 26, I say:  15  16 "Q   And then -- I'm sorry.  And then they would get  17 together and pass a resolution like this and  18 then they would give it to the Fish and Wildlife  19 branch and ask the Fish and Wildlife branch to  2 0                 make changes?  21 A  That's right."  22  23 Now, and then under tab 5, my lord, I have put an  24 extract from -- and I won't read all of these -- but  25 these relate to the B. C. Special Fund and how it is  26 dealt with.  And Mr. Michell's familiarity with that  27 matter.  28 And at page 3888, and this is volume 63.  A form  2 9 was put -- a government form, which purported to show  30 the disposition of this so-called B. C. Special.  And  31 at line 41:  32  33 "Q   Now this form states that there is in the band's  34 capital account $124,777.22.  Now, that's what you  35 called 'back in Ottawa'; is that right?  36 A  We have two different accounts.  We have a new  37 one capital.  38 Q   Right.  That's the capital account.  And then the  39 revenue account shows a balance of $114,737.38, to  40 which is added $3,993.13 for the B. C. Special,  41 giving a total of $118,730.31.  That confirms for  42 you, does it not, that a B. C. Special payment in  43 the amount of 3,900 odd dollars is added to the  44 band's revenue account? It was put into the  45 band's revenue account, isn't that your  46 understanding of it?  47 A   Yeah. 5827  1 Q   What control does the band have or over that  2 revenue account?  3 A  Well, all the people have to have a general  4 meeting before they can touch that money.  5 Q   That is to say the band members?  6 A   Yes.  7 Q   Yes.  And if the band members decide to use that  8 revenue account for certain purposes, that's  9 what it is used for; is that right?  10 A   Right.  11 Q   Can you give his lordship some examples of how  12 that is done or what the uses are?"  13  14 Then Mr. Michell gives some examples of what was done  15 with the band account.  And those documents were then  16 tendered.  17 And then at page 3891 documents produced by Mr.  18 Grant this morning consisting of a letter of December  19 16th, 1980 to the Moricetown Band Council stating what  20 the per capita share of the B. C. Special grant for  21 1980-'81 is.  22 And that was a letter and a ledger account.  23 THE COURT:  Well, Mr. Goldie, do I take it that you assert in  24 support of this motion that the band council is the  25 alter ego of the plaintiffs?  26 MR. GOLDIE:  Yes.  27 THE COURT:  Well, Mr. Grant, do you take a different position  28 from that?  29 MR. GRANT:  Well —  30 THE COURT:  Seems to me that's what your witnesses have been  31 saying.  32 MR. GRANT:  I think Mr. Goldie, in fairness, when he took Mr.  33 Michell's evidence, is that in certain -- and I  34 think -- I think this is the position I think that is  35 correct, from my understanding of the witnesses'  36 evidence thusfar, and my understanding of the  37 circumstances, that in certain respects, they are in  38 that they carry on, they act under the direction of  39 the chiefs for certain purposes, and in certain  40 respects, they are the alter ego or the agent of the  41 Department of Indian affairs.  In other words, the  42 band councils operate in -- one must look at the  43 specific area in which one is dealing with respect to  44 that.  But, having said that, I agree, and I emphasize  45 that although at some point we may have said that --  46 well, actually we didn't argue this, it was originally  47 brought on, this motion was mooted by my friends last 582?  Submission by Mr. Grant  1 May, but the evidence of the witnesses is that in  2 certain regards, the band councils or at least the  3 band councils of which you have heard evidence of,  4 which in my recollection, my friend has referred to  5 the Moricetown, Hagwilget, Gitwingax, and I am not  6 certain about -- I haven't -- I wasn't present during  7 Mr. Morris's Gitanmaax, in those cases those bands  8 they operate under the direction of the chiefs.  I  9 think that's clear in the evidence.  10 THE COURT:  Well, certainly the impression that I have been  11 getting from the witnesses, and I haven't got chapter,  12 line and versus on my fingertips, but the impression  13 that I have been getting is that in matters of  14 ownership of territory and the use of the territory,  15 resource management, the witnesses have been saying  16 that the band councils act under the direction of the  17 chiefs.  18 MR. GRANT:  Yes, well the reason —  19 THE COURT:  I remember Wah tah keg'ht, for example, agonized  20 whether he would allow a logging operation on his  21 territory which was undertaken by the band council and  22 he finally said he thought it was for the good of the  23 village and therefore he agreed that they could log  24 his hereditary territory.  That sort of thing is just  25 an example.  Seems to me that if the band councils are  26 the alter ego of the plaintiffs, then there really  27 isn't much to be said against this application, is  28 there?  29 MR. GRANT: Well, I personally, as I say, because the band  30 councils -- and I think Mr. Michell said it most  31 clearly, the band councils operate in two manners that  32 I think one must look in certain regards, for example,  33 I think that -- I just scanned it but I think it's the  34 water licence that they operated as sort of an agent  35 for the Indian Affairs and certain matters they deal  36 with it through Indian Affairs and they operate on the  37 direction and follow the policies and the guidelines  38 of the Indian Affairs.  They are an alternative --  39 they are part of a devolution of Indian affairs that's  40 occurred over the last 25 years.  But, having said  41 that, that's why I don't like the term alter ego.  But  42 there is no question, my lord, that the evidence is  43 that those bands of which witnesses have given  44 evidence, are operating on the direction of the chiefs  45 in certain areas and I think, for example, the  46 trapline area that we talked about, I think the  47 evidence of Mr. Michell it's clear, and that they are 5829  Submission by Mr. Grant  1  2  3  4  5  6  7 THE  COURT  9  10  11  12  13  14  15  16  17  18 MR. GRANT  19  20  21 THE COURT:  22 MR. GOLDIE  2 3 THE COURT:  24 MR. GOLDIE  2 5 MR. GRANT  2 6 THE COURT  2 7 MR. GRANT  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  operated under the direction of the chief and in those  areas one may look at it.  I have an answer to this.  I have a response to it  but it is not that they are not the alter ego, because  I obviously as counsel cannot say please disregard all  the evidence.  I think that evidence is there.  I think I should hear your response, Mr. Grant.  You  people are under more time pressure than I am, but it  seems to me the evidence has been all -- your  evidence, that is the plaintiffs' evidence, has been  all mainly, certainly for the purposes of discovery,  there is an ample body of evidence that would support  the allegation they are for these purposes the alter  ego of the chief, and that being so, there isn't much  I have heard, until I am persuaded by you, to be said  against this application.  So I would like to hear  what the other side of that question is, please.  I have filed an affidavit as I indicated, and it's a  very brief affidavit, of my associate, which  I have  delivered to my friends.  Have you seen it, Mr. Goldie?  I have one now, my lord.  Shall I read it?  I don't take objection to it.  I was going to go through it --  Well, that might be a useful thing to do.  Go ahead.  Before I do, my lord, the primary concern we have  here, is the ability for us to respond to this,  firstly, and then the necessity that this been  produced, that this work be done by the plaintiffs.  In other words, that there are two ends to this and  my -- and my learned friends, the Province, has  already taken advantage of one end of this.  Now, I  just like to go to the motion and I would like to  answer a couple of points on the motion itself.  One  is -- sorry, my lord, I have the other motion in front  of me right now.  Is the -- my -- the motion asks for production from  these seven bands relating to the following topics:  Topic one the B. C. Special Fund.  I have delivered to  the Province, at their request, and as Mr. Goldie  said, without prejudice to future requests, the  documents from Hagwilget and Moricetown as a result of  a search of the B. C. Special Fund.  In fact, Mr.  Michell was cross-examined on the Moricetown  documents, and I believe Mrs. Wilson-Kenni on the  Hagwilget documents.  That is the less problematic of 5830  Submission by Mr. Grant  1 the two requests.  The evidence is in terms of this  2 relationship between the chiefs and the band, relates  3 so far to Moricetown, Hagwilget, and Gitwangax through  4 Tenimgyet, Art Mathews, and I did not see in my  5 friend's material evidence of Mr. Morrison that  6 pinpointed it but I think from what Mr. Rush has  7 informed me, that he was also was cross-examined on  8 the same type of relationship so that Gitanmaax may  9 also apply.  Thusfar it is my recollection that there  10 is no evidence relating to the relationship between  11 Kispiox, Gitsekugla and Glen Vowell.  Now, I say that  12 not because such evidence may not be forthcoming, but  13 that one must -- that each of these bands operates  14 independently, has their own way of doing things and  15 it may be, and I cannot advise the court or my  16 friends, it may be that they do not have this same  17 relationship.  And I think that's an area that has to  18 be pursued to determine whether it applies.  I  19 anticipate that Kispiox is in the same relationship, I  20 am not sure about Kitsegukla and Glen Vowell.  That's  21 one point I wish to make, that any order should only  22 apply at this time to those bands where there has been  23 evidence led of the relationship, or at least the  24 court give us an opportunity to see if that  25 relationship applies to the other bands.  My affidavit  26 does not speak to the fact that there is no such  27 relationship and I am not arguing that now but I  28 certainly want an opportunity to inquire into it.  2 9 I would like to go to the Adams affidavit and Mr.  30 Adams refers to Dora Wilson-Kenni, a witness that you  31 heard, and as you recall, my lord, Miss Wilson-Kenni,  32 in direct evidence, led documents of the B. C. Special  33 from Hagwilget, because it obviously became clear.  34 And I must also say we are requesting such documents  35 from the federal Crown and will be bringing on a  36 similar application.  37 She indicates in paragraph two that, "The Hagwilget  38 band keeps extensive files of documents which are not  39 segregated into the categories used in the defendant  40 Province's application for production of certain band  41 council documents.  I am further informed that the  42 originals are copies of many of the documents  43 identified by category in the defendant Province's  44 application for production are required by law to be  45 made available or are as a matter of policy or  46 practice made available to the Department of Indian  47 Affairs and thus are available in that agency's 5831  Submission by Mr. Grant  1 files."  And I wish to pause to refer you to the  2 transcripts of evidence referred to by my friend in  3 that the original B. C. Special document, which was  4 put to Mr. Michell, came from Canada's list of  5 documents.  And the trapline resolution that Mr.  6 Goldie just referred to, said got into the government  7 file, was from the Canada's list of documents.  8 MR. GOLDIE:  Well, my recollection, my lord, is that it was  9 given to the Provincial Government, Fish and Wildlife  10 Branch.  That's where it started from.  It may have  11 come from another source for the purposes of this  12 lawsuit.  13 MR. GRANT:  Well, yes, it may have been delivered to both.  But,  14 in other words, the evidence is -- and also that the  15 list of documents produced by the federal Crown which  16 have now been relied on by both the federal Crown and  17 the Province, as Mr. Macaulay said yesterday, the  18 Chargex system of trapline registrations going to both  19 levels of government.  The band council resolutions  20 relating to traplines are all held by the Government  21 of Canada, according to the evidence of Ms.  22 Wilson-Kenni, and that is demonstrated in the  23 production and the listing of documents that's already  24 available.  And they are listed not only just by  25 trapline files but by individual trapline files,  26 something that is not done by the plaintiffs.  27 Paragraph 4 is "That all of the bands identified in  28 the defendant's application for production keep  29 extensive files similar to those at Hagwilget."  And  30 then Mr. Adams deposes that "If the defendant Province  31 obtains the order which it seeks for disclosure of  32 band council documents, the plaintiffs will be put to  33 considerable legal and administrative expenses to  34 search the extensive files of the affected bands,  35 review all the documents in those files to assess  36 relevance, list any relevant documents, copy them and  37 transport them from the northern villages to  38 Vancouver.  The plaintiffs do not have the personnel  39 or financial resources to undertake any of the tasks  40 referred to in paragraph two above.  Diverting  41 resources to such tasks would prejudice the  42 plaintiffs' ability to prepare and present their case  43 in this action."  44 And I, as counsel on other matters, which I think  45 were -- documents or pleadings of which were put to  46 Mr. Michell in this action, in which a band was  47 involved in one logging matter, the Moricetown Band,is 5832  Submission by Mr. Grant  1 that the size of the documents related to that  2 particular matter, my lord, was compendious, it was  3 massive, and that was just one aspect of one logging  4 application of one band of one logging contract.  And  5 those numbered in the thousands.  And I must say, my  6 lord, I can safely say, and it's not casting  7 aspersions on my clients, but it was close to a  8 nightmare to try to sort out of these files which ones  9 were relevant to that particular action which was a  10 very specific contractual matter.  11 And, basically, what I am saying is that if there  12 was no other way of getting to these documents, I  13 submit that my friends -- that there would be much  14 added strength to the situation.  But not only is this  15 an overwhelming task, these bands just don't keep  16 things as my friend proposes.  It would be easy if  17 they had these different little file systems but  they  18 don't.  And it means going through cabinets and  19 cabinets of files, which are organized in that order  20 at least with respect to traplines and fisheries by  21 the Government of Canada in the district office in  22 Hazelton.  And you have now had produced in court the  23 lands and estates -- the estates files relating to  24 this matter from federal Canada's list, you have seen  25 reference to that, trapline files from the federal  26 Canada's list, which includes VCRs, and fisheries  27 files.  Now, that is the concern that I have.  If,  28 with respect to the documents relating to the B. C.  29 Special, again, I can say, and the search that was  30 done it and Miss Kenni produced these, was not a  31 search of one file, it was a search of all of the  32 cabinets to get these documents.  These documents are  33 in the possession of the Government of Canada and are  34 being produced on an ongoing basis by the Government  35 of Canada.  The are available to the defendant.  For  36 us to allocate our resource at this stage of the  37 trial, my lord, is an awesome task and that is the  38 difficulty with the production of these documents.  39 It's -- we are in a similar situation,  I would say  40 we are in a similar situation to what the Province has  41 raised before about difficulty with regards to vast  42 documents that we have requested, except that at least  43 they have an archive system that has some semblance of  44 order, one presumes, and it's one archive system.  45 Here we would be requested to go through seven  46 systems, which aren't even set up in a uniform way.  47 And, my lord, I am very, very concerned if this order 5833  Submission by Mr. Grant  1  2  3  4  5  6  7 THE  8  9  10  11  12  13 MR.  14 THE  15 MR.  16 THE  17  18  19  20  21  22  23  24  25  26  27  28  29  3 0 MR.  31  32  33  34  35  36  37  38 THE  3 9 MR.  40  41  42  43  44  45  46  47 THE  is made, because I -- as a practical matter, I don't  know how the order can be complied with.  I really  don't know how it could be complied with.  Of course I  am relating to the second area.  I am very, very  worried that it's just not feasibly possible for to us  do it.  COURT:  Well, Mr. Grant we have wasted a lot of time in this  trial over the B. C. Special Fund.  Maybe we have  wasted it all, that may be a matter to be determined  at the end of the trial.  Maybe it's not important.  The plaintiffs, however, say it is and they are  entitled to to have this evidence --  GRANT:  The defendants.  COURT: Yes, the defendants say it's important.  GRANT:  And I am not worried about those documents.  COURT:  And I don't know why there has been so much  difficulty about it.  Every witness has been so vague  and so uncertain and so uninformed about the matter,  that seems to me that we have wasted a lot of time.  The circumstances of the B. C. Special should be able  to be put on one piece of paper, for all seven  villages.  I just can't imagine what all the  difficulty is about.  Not for me up to this point to  say that.  But, I see no reason why a statement  couldn't be prepared very quickly as to what the  various band councils have received by way of the B.  C. Special Fund.  I can't imagine there should be any  difficulty with that.  But we have probably spent a  day on it all together.  GRANT:  Well, my lord, I agree.  But what I want to tell  you, and I think if you recall, I went through in the  course of production of those documents, I went  through 15 years, I believe it was or had someone go  through 15 years of these monthly reports and I think  there was four or five that referred to to the B. C.  Special.  I am not saying they didn't get money in  those other years.  Who knows?  COURT:  But surely they know.  GRANT:  That's the point, the system -- these statements  are -- there seems to be a very, very haphazard  approach.  But if that's the case, as to how much  money given with regard to the B. C. Special, with  respect to the seven bands, I think it can be put on  one piece of paper, and I think the party that knows  that most easily is the government of Canada because  they are the ones that produced these papers.  COURT:  The problem with that, when it comes from the 5834  Submission by Mr. Grant  1 Government of Canada it doesn't bind the plaintiffs.  2 It's a matter of proving it.  And I have watched the  3 defendants struggle to try and get the slightest  4 admissions that funds were paid or were received and  5 those admissions just haven't been forthcoming.  6 MR. GRANT:  But, my lord, I, in reviewing the documents, I must  7 admit that with respect to, for example, the Hagwilget  8 documents, the ones I canvassed to see it this can be  9 done, on a review of the documents in the possession  10 of that band, relating to any kind of funding for any  11 kind of purpose, as I say, there was documents  12 produced for about three years.  13 MR. GOLDIE:  One.  14 MR. GRANT:  Was it one year?  15 MR. GOLDIE:  One.  16 MR. GRANT:  Yes, one year.  And that referred to the B. C.  17 Special.  And I am going from memory, and that was the  18 only document that referred to it.  There is income  19 and outgo and all of these different things but the  20 other documents didn't refer to it that I examined.  21 And I produced everything that made a reference to it,  22 and I could not figure out from those documents  23 whether money had been given on the B. C. Special in  24 previous years, if so, how much.  25 THE COURT:  Mr. Grant, then, if what you are saying is so, and I  26 don't dispute what you are saying at all, surely the  27 plaintiffs can get a statement from the government of  28 Canada and can make an admission.  29 MR. GRANT:  Well, we have requested from the Government of  30 Canada, by correspondence, all documents relating to  31 the B. C. Special.  And they have said to us, and we  32 will have to argue this out in due course, this is not  33 possible, or is not realistic to be done at this time.  34 I don't want to misquote my friends.  And they are  35 investigating it.  And it's on their tasks of to do.  36 Well, until we get that production, we can't give the  37 admission that is being sought.  38 The focus of my concern, my lord, is that if it  39 entails doing for these seven other bands what was  40 done for this band and going through the -- however  41 many years of statements they have to figure out which  42 ones refer to the B. C. Special, that's fine.  But I  43 don't think it's going to help my friends to know in  44 what they are trying to -- if they are seeking an  45 admission, as to how many years they got it.  Because  46 the documents in the possession of the bands, if they  47 are anything like the one in Hagwilget, just don't 5835  Submission by Mr. Grant  1 reflects what's B. C. Special and what's other things.  2 So that's why I think that the better approach, and I  3 would be happy to draft another letter to my friends  4 from Canada and say how about giving us a list of  5 these things and that would be great.  Maybe we could  6 get through that.  The focus of my concern, of course,  7 was the second arm of the application.  8 THE COURT:  I understand that.  Well, before, I -- sorry, you go  9 ahead.  I think I understand your point on that.  10 MR. GRANT:  My point is on the B. C. Special is that in order  11 for to us respond on the B. C. Special, I can say, for  12 example, one of the bands, I don't know how many  13 documents or if documents relating to this were  14 burned, there is one of these bands, that band office  15 had a fire in about '84 and I know a whole series of  16 documents were burned, so that the completeness of the  17 files is probably inadequate, depending on the filing  18 system, who administered at different times and all  19 these different things.  It's probably not going to be  20 satisfactory on the B. C. Special, that's one of the  21 reasons we are demanding the documents from Canada, so  22 we can focus on this and track it down.  As you say,  23 the defendants have raised it, they have said it's an  24 issue and that's been argued out and I don't thing  25 anybody is really disputing that one of the issues  26 before the court is going to be the B. C. Special.  27 The defendants at least have raised that.  We may say  28 it's not relevant but for the purposes of this that's  29 not what I am saying.  But the problem is that what is  30 the point of this task is that at the end of the day  31 either we are going to have spent all of this time,  32 even on the B. C. Special, it's not going to resolve  33 the concern of my friends, who should probably make a  34 demand to Canada as well, saying come on, give us  35 those documents so we can see what's going on.  36 THE COURT:  Are the amounts really of any great significance?  37 Couldn't an admission be made that each year the --  38 MR. GRANT:  But it varies in each year.  What I think the  39 evidence was, there was 100,000 for all of B. C. then  40 it's per capita, and then what is the population  41 and —  42 THE COURT: Could an admission not be made that each year, each  43 band receives its pro rata share of the B. C. Special  44 fund, whatever that may be, and I daresay that Canada  45 can tell us each year how much the total B. C. Special  46 has been and I doubt if the actual amount in dollars  47 is of great significance to you, is it, Mr. Goldie? 5836  Submission by Mr. Grant  1 MR. GOLDIE:  It isn't.  A document that Mr. Rush objected to  2 that sets that out.  3 MR. GRANT:  There was, I think there was a document, and that  4 referred to a letter of a meeting in 1964 and up to  5 that time none of the money had been given to any of  6 the bands and I don't know how it started to be  7 distributed to the bands, whether it came to the  8 Gitksan and Wet'suwet'en after that time immediately.  9 This is part of this whole administrative devolution  10 of the Department of Indian Affairs going on for 25  11 years.  Depends who happens to be at the helm of the  12 ship in any given year as to what forms are used.  13 That's my summary of what how it seems to be and  14 whether it's disclosed that way.  For example, we have  15 a letter for one year, only one year was there a  16 letter saying, "Dear Sir, here is us your B. C.  17 Special fund."  There was no other correspondence  18 relating to it.  And I suspect it was probable the  19 same for the other bands.  2 0 THE COURT:  Well, Mr. Grant —  21 MR. GRANT:  I am not very concerned about the second arm.  22 THE COURT:  Let's deal with the first branch.  Ms. Koenigsberg,  23 anything you want to say about the application for the  24 production of the B. C. Special fund.  25 MS. KOENIGSBERG:  If it will be of assistance, my friends wrote,  26 produce every document that relates to the B. C.  27 Special fund.  We said if you could just be a little  28 more particular perhaps we could make a special  29 request and attempt to find what it is that you  30 actually want.  And my friend wrote back a lengthy  31 letter with a number of things that he wanted and we  32 have sent it on.  I am now -- I now realize, have been  33 told that a significant number of those documents are  34 in R. G. 10 which is part of the archives that my  35 friend of course has.  Nevertheless, to the extent  36 that those documents are available to us, and can be  37 gone through by a researcher to retrieve the documents  38 that my friend is asking for, of course we are in fact  39 doing that and we will do it.  One would hope that you  4 0 could produce a document which would show that  41 dispersal of the B. C. Fund to each Indian band, I  42 suspect it doesn't exist or we have it, but yes, we  43 will look to that kind of thing and see from our  44 client if we can obtain such a thing.  If we can, it  45 would be any admission with regard to that document  46 would be most greatly accepted.  47 THE COURT:  Well, I am going to make an order for production, 5837  Submission by Mr. Grant  1 under the B. C. Special, category of this application,  2 but I am going to follow the practice that used to  3 prevail in the Provincial Court in cases is of  4 drunkenness and hold the order for a week to give  5 everybody a chance to get out of town and thereby  6 solve the problem.  I have no doubt that a very simple  7 admission is all that's required in this case, inthis  8 connection.  I doubt if Mr. Goldie wants to know how  9 many specific dollars each band received.  I suspect  10 he would be satisfied or he should be satisfied, I  11 think, to say that each year the various bands  12 received, if such was the case, their pro rata share  13 of X dollars and that in a couple of years it was  14 $2.45 a head or other years it was $3 a head or  15 whatever it was, and I can't see any reason in the  16 world that the whole question of the B. C. Special can  17 be put to rest with a much less than one page  18 admission.  I am going to hold that order until a week  19 from Monday, to give counsel a chance to see if they  20 can't sensibly agree upon an admission and put this  21 problem to rest.  22 Now, Mr. Grant, I think I understand your problem  23 with respect to the second branch of the application.  24 Anything else you want to say about that?  Your  25 problem is a technical, managerial, logistical-type  26 problem.  27 MR. GRANT:  It's a possibility.  Let's talk about the realm of  28 possibility given the stage we are at in the trial.  29 And the tasks of counsel.  30 THE COURT:  I have your point on that.  Ms. Koenigsberg,  31 anything you want to say on that?  32 MS. KOENIGSBERG:  Again, the band council resolutions which we  33 came across in our general research, our documents  34 which we have produced as we have come across them, I  35 would have to seek instructions on this but my  36 recollection of attempting to, ourselves, trying to  37 find them, that's related to a particular topic, is A,  38 they are not received necessarily because there has  39 been -- they aren't necessarily received by Indian  40 Affairs, they may or may not be kept, and if they are,  41 and I know it's piecemeal, if they are, they are not  42 in any form which allows you to go and say I would  43 like all band council resolutions dealing with fishing  44 or all band council resolutions in this band dealing  45 with any other resource management.  I know they do  46 not exist in that form.  Therefore, it is obviously an  47 onerous task as well for the federal government in 583?  Submission by Mr. Grant  1 this litigation to attempt to make production for the  2 plaintiffs of all of the band council resolutions  3 which they have passed.  That some or maybe most band  4 council resolutions are received by Indian Affairs  5 district offices is probably true.  How they are kept  6 is a bit of a mystery.  I know it's not simple and  7 that we have been unable to obtain them oursselves in  8 any orderly fashion.  But we have, as I say, produced  9 them as we have come across them.  10 THE COURT:  All right.  Thank you.  11 MR. GRANT:  Just one point, my lord.  The form of the band  12 council resolution, which I think, I am certain that  13 some of them have been produced as exhibits, if you  14 look at the form you will see how -- that it's clearly  15 a setup that those forms are for filing with the  16 Department of Indian Affairs and this is the format  17 that is used.  Well, I am not going to second guess my  18 friends.  I have seen some of the files but I am not  19 sure how the Department of Indian affairs files them  20 but they -- I am sure they do file them.  21 THE COURT:  Mr. Goldie?  22 MR. GOLDIE:  Thank you, my lord.  The application, of course, is  23 for band council resolutions and other documents.  On  24 the so-called second branch of the argument, which  25 relates to ownership and jurisdiction, that is to say  26 resource management.  Nothing, which the federal  27 government has been -- would necessarily deal with  28 matters that take place within the band council  29 relating to resource management outside the reserve.  30 And we, we are simply taking the statements made by  31 the witnesses to date, and nobody has suggested that  32 that doesn't apply to all of the councils.  33 Asking for at appropriate order.  34 Two points that my friend has raised, first, the  35 objection to this order made over a year ago, was  36 process or control.  That was the difficulty that was  37 going to be raised.  Second, the -- my friend suggests  38 that the band archives or the band records are like  39 archives.  And may I point out that the provincial  40 archives are as open to their researchers as they are  41 to ours and if it would be of any assistance to my  42 friend to allow his band council minutes and  43 proceedings be open to our researchers we would be  44 glad to have that.   But what I am saying is that the  45 evidence makes it perfectly clear that they are there,  46 the relevance isn't denied, all we are asking for is  47 resolutions and proceedings dealing with ownership and 5839  Submissions by Mr. Goldie  1 jurisdiction.  And if that requires the band manager  2 to make a selection, so be it.  That's what he is  3 there for.  4 MR. GRANT:  With respect, the only problem, my lord, when I said  5 the archive of course I wasn't saying that they are  6 "archive" in the legal term but a repository of files  7 is what I was dealing with.  8 THE COURT:  Well, this application clearly falls within the  9 principle I tried to enunciate in Peter Kiewit and  10 B. C. Hydro where having produced 50,000 documents, B.  11 C. Hydro was asked to swear an affidavit that they had  12 searched all the files of B. C. Hydro and there were  13 no other documents that related to the matter in  14 question.  And I dismissed that application on the  15 ground that the -- that I thought in the  16 circumstances, the plaintiff, the applicant in that  17 case the defendant, was required to present a narrower  18 and more specific and identifiable target.  In this  19 case, the plaintiff has limited the application to  20 band council resolutions and other documents relating  21 to resource management, including fisheries, traplines  22 and logging and forestry, and while that may be an  23 inclusive statement, I would treat it as being one  24 that might reasonably be confined to those areas.  I  25 think, as the other branch of this application, there  26 is an easy legal answer and a serious practical  27 problem.  And I wonder if it's fair again to ask you,  28 Mr. Goldie, if it is possible, to further narrow the  29 aim of your or the target at which you are shooting?  30 Can you use a smaller weapon than a sawed-off shotgun,  31 even within these narrow categories?  32 MR. GOLDIE:  It wasn't even sawed-off my lord, and it was bird  33 shot.  34 THE COURT:  What I am thinking of, is to say these seven  35 villages, dig up what you have got.  I know that there  36 is an element of exploration as well as discovery in  37 these things, but is it not possible to target your  38 request in some way with relation to the witnesses  39 that have been or are going to be called?  I can see a  40 real problem with ordering Mr. Grant to produce all  41 the documents that relate to the Moricetown logging  42 operation and sawmill construction and operation.  43 MR. GOLDIE:  Well, the concern there arose because Mr. Michell's  44 evidence in chief was on the logging operation, on the  45 sawmill operation was so sparse, as my friend said one  46 licence, there were two licences, and a whole series  47 of them.  I know of nothing like that, which 5840  Submissions by Mr. Goldie  1 approaches -- I know of nothing that approaches the  2 magnitude in which any other band has been involved.  3 But, on the other hand, and purely by chance, we  4 learned, for instance, that the Hagwilget band had  5 made a small business administration application for  6 logging outside its own reserve.  The sort of thing  7 that I am looking for is activity, resource activity  8 outside the reserve, which -- it may advance their  9 cause or it may advance my cause.  I don't know at the  10 present time.  But I will certainly endeavour to be  11 specific.  I don't think that I would care to accept a  12 proposition that I must prove with respect to every  13 village what we have heard to date.  Because we may  14 never get another witness from some of the other  15 villages.  And the letter that was written to Mr. Rush  16 a year ago specified all of six villages.  So that my  17 friend's position that it applies only to Hagwilget,  18 Moricetown and Gitwingax is not one taken by Mr. Rush.  19 He didn't suggest there was any distinction at all, as  20 between one and the other.  21 But in more direct answer to your lordship's  22 question, I am quite prepared to try my hand at being  23 specific.  And that would be on the understanding that  24 that would -- it would be responded to by an affidavit  25 or statement by the band manager.  My friend has  26 stated some of the difficulties and there are  27 difficulties that I am learning for the first time  28 today.  And I can only repeat that they were not  29 difficulties raised by Mr. Rush a year ago.  But if  30 your lordship is prepared to stand this down for a day  31 or so, well then I will try my hand at the more  32 specific request.  33 THE COURT:  I think that's what I would like to do.  I think  34 that the defendant Province is entitled to some  35 assistance in this regard, but I think Mr. Grant's  36 concerns have to be recognized.  And I hope that that  37 can be done by narrowing the scope of the inquiry and,  38 again, counsel can raise the matter again at any time  39 on reasonable notice to the other side.  Is it useful  40 to suggest that it be spoken to a week Monday?  41 MR. GOLDIE:  That would be fine my lord.  42 MR. GRANT:   All right.  43 MR. GRANT:  I would -- well I just wanted to comment on one  44 thing on this narrowing.  Mr. Goldie referred I  45 believe in the evidence an example he gave was I think  46 was the fishery by-law of 1960 or 1959 of Moricetown.  47 If in terms of, for example, fisheries, or anything 5841  Submissions by Mr. Goldie  1 else, if he is looking for something like the by-laws,  2 as opposed to band council resolutions and all other  3 documents, I think that's a manageable task.  That's  4 the first point he just raised now and of course he  5 has raised it in his motion, resource management in  6 and outside of reserves the band councils, my lord,  7 under the regime, the Indian Act, the regime under  8 which they operate, have no authority outside of the  9 reserves so they do outside of the reserves, as band  10 councils, would be as he said a small business  11 development licence or something else, like any other  12 entrepreneur.  These of course are done through  13 applications or through whatever process is done.  14 THE COURT:  You see, it may be sufficient, and I won't presume  15 to say whether it is or not, but it may be sufficient  16 for each of the band councils to make a statement that  17 they regularly or they occasionally or they  18 infrequently, approve or disapprove of applications  19 for transfers of trapline registrations.  It may be  20 that Mr. Goldie at the end of the day may find that he  21 doesn't need to know, or have every one that's --  22 MR. GRANT:  Have every BCR.  23 THE COURT:  Every one that's been processed.  I don't think that  24 out for his consideration, but seems to me there is a  25 middle ground somewhere that will allow these legal  26 issues to be fairly tried on an evidentiary basis  27 without having to descend into the most minute detail.  28 MR. GRANT:  Well, I mean, yes, and I think that that's why I  29 said at the beginning that I am not saying given the  30 evidence that the band councils are totally  31 disassociated from the chiefs.  The only other point  32 about Monday week next is that I may not, depending on  33 the schedules of the witnesses, I may not be present  34 and I think it may be appropriate that I continue on  35 with it.  But maybe that can be --  36 THE COURT:  I will have to leave that to you gentlemen to work  37 that out.  38 MR. GRANT:  We can possibly work that out.  It may be spoken to  39 a week from Monday or earlier if counsel wish.  40 Thank you.  Mr. Goldie?  41 MR. GOLDIE:  I am leaving it on the basis that I am going to  42 tell my friend more precisely what I need and I am not  43 going to make any comment on some of the views  44 expressed by my friend a minute ago.  45 Could we turn now to the next motion?  4 6 THE COURT:  Yes.  47 MR. GOLDIE: Does your lordship have a — 5842  Submissions by Mr. Goldie  1 THE COURT: I don't think so.  Is this the amendment?  2 MR. GOLDIE:  This relates to the amendment, my lord.  3 My lord, the book that I have handed up contains  4 Notice of Motion, and one or two other references, and  5 I gave a copy of that to my friend yesterday.  6 It is a -- appended to the Notice of Motion, there  7 is a draft statement of defence, which indicates the  8 proposed amendments and they are the addition of  9 paragraph 39(b), and that is the principal one --  10 THE COURT:  As I am going through this, I notice 18(a) of your  11 defence, has some underlining in it.  Does that  12 represent a new allegation?  13 MR. GOLDIE:  If it's black, it's from the last amendment but  14 your lordship's copy should be in red.  Is the Notice  15 of Motion from the court file available?  16 THE COURT: Yes.  It's right here.  17 MR. GOLDIE:  Yes.  That one, my lord, you will find that the  18 underlining is in red.  19 THE COURT:  Yes, I have the red underlining or the red side  20 lining.  21 MR. GOLDIE:  The first is paragraph 29(a) —  22 MR. GRANT:  These are the amendments?  23 MR. GOLDIE:  Yes, the amendments that I am speaking to.  2 4 THE COURT:  Yes.  25 MR. GOLDIE:  That is -- and that's been amended and I will speak  26 to that in a minute.  27 37, item (h), is amended by adding the words "and  28 confirmed by the Constitution Act, 1930 a part of the  29 constitution of Canada.  3 0 THE COURT:  Yes.  31 MR. GOLDIE:  Paragraph 39(a) is the principal one —  32 MR. GRANT:  39(b) you mean?  33 MR. GOLDIE:  I am sorry, 39(b).  Thank you.  34 And I am going to speak primarily to that one now,  35 the amendment in 39(b).  And it raises or adds to the  36 defences, the defence of laches, or unreasonable delay  37 in the commencement of the proceedings and  38 acquiescence in the infringement of rights either  39 express or implied.  40 As your lordship knows, that defence is an  41 equitable defence and it is analogous to the defence  42 of Statute of Limitations to a legal defence.  And the  43 defence of limitations has always been in the action  44 and is found in paragraphs 39 and 39(a) .  45 The equitable defence is raised wherever the court  46 is requested to grant discretionary relief.  And I  47 have put under tab 6 an extract from volume 16 of 5843  Submissions by Mr. Goldie  1 Halsbury, midway down that paragraph 1476, "The  2 defence of laches, however, is only allowed where  3 there is no statutory bar.  If there is a statutory  4 bar operating either expressly or by way of analogy  5 the plaintiff is entitled to a full statutory period  6 before his claim becomes unenforceable."  7 As I say, broadly speaking the one is an equitable  8 defence or a defence raised where the court's  9 discretion is sought, and the other, the Statute of  10 Limitations, this is where the plaintiff seeks a  11 relief in law, asserts a legal right.  12 Now, no defence in laches was raised in the  13 original defence and the reason for that was that to  14 the defendants' advisors, the defence, the claim  15 sought appeared to be confined wholly to declarations  16 of legal interest and to a claim for damages.  And as  17 to those claims, laches was irrelevant.  18 The relevance of the equitable defence arises out  19 of the relief sought in the declarations as they stood  20 and when I say the declarations, I am talking about  21 the prayer for relief, as they stood after the amended  22 statement of claim was filed in March of 1987.  Now, I  23 just turn to that, my lord, under tab 2 is the prayer  24 for relief of the statement of claim as it was issued.  25 And that was a declaration that the plaintiffs  26 ownership and jurisdiction over the territory has  27 never than lawfully extinguished or removed; a  28 declaration that the defendants do not have any  29 jurisdiction over the territory; and, a declaration  30 that they are entitled to damages.  And that seemed to  31 us at the time to be asserting of a legal interest.  32 Now, under tab 3, the -- is the prayer for relief  33 as it was -- as it stood when the trial opened.  And  34 as we analyze those prayers, it seemed to us that some  35 of them at least sought equitable relief.  36 THE COURT:  This was filed on the first day of the trial, was  37 it?  38 MR. GOLDIE:  Yes.  And the amendments, as my friend said, were  39 made earlier.  There was -- there were some  40 applications, at least one to the Court of Appeal, on  41 these prayers for relief, and I don't think they got  42 finally settled until around March of 1987.  43 But if one looks at these declarations, nine, ten,  44 and 11 are, as we read them or as we read them,  45 essentially injunctive in nature and, therefore, are  46 at the discretion of the court.  Even if the legal  47 interests are found in the plaintiffs' favour. 5844  Submissions by Mr. Goldie  1 Now they are framed as declarations, no doubt  2 because of the provisions of the Crown Proceeding Act,  3 which the plaintiffs plead, which provides that no  4 injunction may be granted against the Crown, any  5 relief in that regard is done by way of declaration.  6 Under tab 4, I put section 11 of the Crown  7 Proceeding Act.  Subsection 4 reads, and I quote, "The  8 court shall not in a proceeding grant an injunction or  9 make an order against an officer of the Crown if the  10 effect of granting the injunction or making the order  11 would be to give relief against the Crown that could  12 not have been obtained in proceedings against the  13 Crown but may make an order declaratory of the rights  14 of the parties instead of granting the injunction."  15 And so that's why I say that, as we read them,  16 paragraphs nine, ten and 11 appears to be injunctive  17 in nature.  18 The -- with respect to the relief in the other  19 declarations, your lordship will recall that these  20 have been the subject of inquiry by the court and an  21 inquiry which was answered by my friend Mr. Grant not  22 long ago.  23 Obviously, there is a difference of opinion as to  24 what the declarations under one to six would extend  25 to.  Your lordship asked, in effect, if I do not find  26 that you are entitled to legal ownership and  27 jurisdiction, may I find something less than that?  28 And my friend answered that in a submission made, as I  29 say, not very long ago.  And I think I said at the  30 time, well my friend Mr. Grant may say that implicit  31 in those declarations is a discretion on the part of  32 the court to grant something less than complete  33 ownership and declaration in the legal sense.  I said  34 that's not the way we read it.  35 But I don't think, my lord, it would be appropriate  36 to have that issue decided now and your lordship did  37 not purport to decide that issue now.  38 Therefore, this application is being made on the  39 basis that some of these declarations will involve the  40 court's discretion with respect to the relief sought.  41 I haven't turned up the transcript but certainly I  42 have the sense that my friend, Mr. Grant's, submission  43 was that the court will be, that the submission will  44 be made to the court that there is room for your  45 lordship's discretion to be exercised when it comes to  46 the question of the remedy.  47 5845  Submissions by Mr. Goldie  1 THE COURT:  Is it convenient to take the morning adjournment,  2 Mr. Goldie?  3 MR. GOLDIE:  Yes that would be fine, my lord.  4  5  6 I hereby certify the foregoing to be  7 a true and accurate transcript of the  8 proceedings herein to the best of my  9 skill and ability.  10  11  12  13 Wilf Roy  14 Official Reporter  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  x 5846  Submissions by Mr. Goldie  Submission by Mr. Macaulay  1        (PROCEEDINGS RECONVENED AT 11:35)  2  3 THE REGISTRAR: Order in court.  4 THE COURT:  Goldie?  5 MR. GOLDIE:  My Lord, I just made a submission with respect to  6 paragraphs 1 to 6 --  7 THE COURT:  Yes.  8 MR. GOLDIE:  -- of the prayer for relief, and I was going to  9 note that in paragraph 5 of the prayer for relief  10 there appears to be a claim to relief which could cast  11 a shadow on titles issued by the crown and that is a  12 defence which may be raised where the court is asked  13 to grant a discretionary relief.  14 Now, following my friend's explanation to Your  15 Lordship of how the plaintiffs viewed the relief that  16 was sought, my friend Mr. Macaulay submitted that the  17 claims, as he then understood them, should be pleaded  18 in greater particularity.  The plaintiffs have not  19 accepted that invitation, and as far as I know now,  20 the plaintiffs' position, insofar as their relief is  21 concerned, stands in its final form.  And that being  22 so, I've considered it appropriate to bring on this  23 application to amend in the manner that I've  24 described.  It requires nothing in the way of a  25 factual addition to the case.  The facts which are  26 complained of in paragraph 75 and 76 of the statement  27 of claim are the very facts which are asserted in the  2 8 amendment and in respect of which the defendant says  29 there has been unreasonable delay in the complaining  30 about those acts.  31 But that's my submission on that paragraph, My  32 Lord.  I don't know that I need add anything to 29 A  33 or paragraph 37, item H.  34 THE COURT:  All right.  Thank you.  Mr. Macaulay?  35 MR. MACAULAY:  I have no submission to make on this application.  3 6 THE COURT:  Thank you.  37 MR. MACAULAY:  I should say that the only submission I make that  38 Mr. Goldie has just referred to was that the prayer  39 for relief, the allegations in the statement of claim  40 and the prayer for relief, did not raise issues as  41 between the plaintiffs and Canada regarding such  42 matters as railroads and Indian reserves and other  43 transport and other federal matters.  44 THE COURT:  Yes.  Grant?  45 MR. GRANT:  I appreciate what Mr. Macaulay has said and that was  46 the first point that I was going to make.  I was  47 specifically dealing with his request regarding 5847  Submission by Mr. Grant  1 railroads, I believe, Indian reserves and airports.  2 My Lord, I'd like to go over this paragraph 39 B  3 that my -- Mr. Goldie proposes to amend now, and I'm  4 not certain if the court has read it, but --  5  6 "That from and after the Oregon Treaty, 1846,  7 and continuing to the present the crown,  8 successively in right of the United Kingdom,  9 of the Colony of British Columbia and of the  10 Province of British Columbia, has, to the  11 knowledge of the Plaintiffs and their  12 ancestors, constitutionally exercised  13 sovereign jurisdiction over the Territory  14 and the resources thereon, thereunder and  15 thereover in a manner unrestricted by the  16 will of any other temporal ruler."  17  18 In that first sentence, the evidentiary -- there  19 is, in my submission, an evidentiary requirement that  20 there is -- this jurisdiction has been unrestricted by  21 the will of any other temporal ruler, and I presume  22 that, of course, what my friends are raising issue  23 there, unrestricted by the will in this case of the  24 Gitksan and Wet'suwet'en chiefs and their ancestors.  25 Then he goes on:  26  27  2 8 "Acts on the part of the Crown which the  29 Plaintiffs allege to be wrongful..."  30  31  32 And that's where he, of course, refers to 79 of  33 the -- or 75 and 76 of the statement of claim.  34  35  36 "...commenced prior to 1871..."  37  38 And that's another fact.  39 "...and since then the Crown including this  40 Defendant has continued such and further  41 acts in the exercise of the said sovereign  42 jurisdiction to the knowledge of the  43 plaintiffs and their ancestors evidenced by,  44 inter alia, the expenditure of public funds  45 and the granting of rights to third parties  46 and the regulation of the exercise thereof,  47 in a manner wholly inconsistent with the 584?  Submission by Mr. Grant  1 alleged rights of ownership and jurisdiction  2 claimed by the Plaintiffs herein, yet this  3 action was not commenced until 23 October,  4 1984."  5  6 So the evidentiary requirement there relates to  7 the expenditure of public funds, by my interpretation  8 of this section -- of this sentence, is by the  9 defendant and its predecessor.  10  11  12 "The Plaintiffs and their ancestors having  13 knowledge of the said exercise of sovereign  14 jurisdiction..."  15  16 Presumably as defined in the previous sentence,  17 that is, the plaintiffs and their ancestors having  18 knowledge of the expenditure of public funds and the  19 granting of rights to third parties and the regulation  20 of the exercise thereof.  21  22 "...have on many occasions too numerous to  23 particularize acquiesced in this Defendant's  24 sovereign jurisdiction by seeking and  25 receiving benefits, licences, grants and  26 protection from Her."  27  28 So the two elements there is that the plaintiffs  29 knew of these expenditures and their ancestors since  30 before 1871 and the granting of rights to third  31 parties.  And then:  32  33  34 "By delaying the commencement of this action,  35 the Plaintiffs and their ancestors have  36 obtained benefits of such licences, grants  37 and protection and the benefits of  38 expenditures of public funds by this  39 Defendant.  40 In the circumstances the Plaintiffs have  41 delayed unreasonably in advancing their  42 claims and this Defendant says that the  43 Plaintiffs are barred and estopped by their  44 laches, acquiescence and delay from  45 asserting the rights claimed by them against  46 this defendant."  47 5849  Submission by Mr. Grant  1 As Mr. Goldie has said, paragraph 39 and 39 A  2 previously raised the statute of limitations which  3 involved at the time of that amendment that was  4 sometime ago discussion between myself and him and I  5 presume in our, I believe, correspondence, but in any  6 event, a discussion in one of our early meetings in  7 which he raised that it was relating specifically, as  8 I recall, to the damages aspect of the claim or the  9 declaration of entitlement.  10 MR. GOLDIE:  Both.  11 MR. GRANT:  Well, I'm not going to debate it because I -- our  12 recollection may be different and it was sometime ago,  13 so it's not -- but in any event, My Lord, the question  14 of paragraph 9, 10, and 11, was not only muted or  15 discussed, but as Mr. Goldie has said, the December  16 16th, 1986, Court of Appeal order of the Honourable  17 Mr. Appellate Justice Hutcheon dealt specifically with  18 that and with Section 11 (4) which was raised by the  19 defendants at that time.  The issue of injunctive  20 relief or a declaration equivalent to injunctive  21 relief was invited by the Court of Appeal and by Mr.  22 Goldie in that argument in December 1986.  23 My Lord, we're in I believe the 91st or 92nd day  24 of trial.  We have had in this case 26 witnesses, 14  25 at trial, 12 on commission.  Three of the commission  26 witnesses have died.  One of those, at least that I  27 know of, maybe more, Mrs. Martha Brown, Kliiyem Lax  28 Ha, spoke about the conduct upon the arrival of the  29 first white man on the territory.  She is now  30 deceased.  There are evidentiary facts that are raised  31 here by this defence at this stage in time.  As Mr.  32 Goldie says, the Court of Appeal order was in December  33 of '86 and there may have been some juggling up to  34 March of '87 and we're now -- this is 14 months after  35 that, 14 months after these declarations have been set  36 out, this new defence is raised for the first time.  37 There is -- with respect, My Lord, there is no  38 suggestion that as a result of evidence of the  39 witnesses that this is something new.  In fact, my  40 understanding or my hearing of Mr. Goldie's argument  41 was that this is a legal defence.  I say that when you  42 look at that there's evidentiary facts that are there,  43 evidentiary facts that we can no longer pursue with  44 some of the witnesses who have given commission  45 evidence in this case or given evidence in this case,  46 those who are deceased, and it's prejudicial to raise  47 this defence at this time. 5850  Submission by Mr. Grant  1 If, on the other hand, the court finds that it is  2 a legal -- strictly legal and there's no evidence  3 required, then why, why between October 23rd, 1984, or  4 March, 1987, when Mr. Goldie says things were  5 finalized, or December '86 when the Court of Appeal  6 made it clear what that -- what it thought about  7 declarations 9, 10 and 11, and other ones that it  8 struck out, why was it not amended then?  Why was it  9 not amended before the trial started?  Our last  10 amendment is five days short of a year and this is the  11 first time this amendment has been raised.  12 I submit, My Lord, that the amendment of, and I'm  13 dealing with paragraph 39 B, should not be allowed at  14 this late stage of the trial.  What are we to do  15 regarding the questions or the investigation with the  16 witnesses that we have called regarding some of the  17 allegations here?  I agree that many of them it  18 doesn't matter, but on some it does and that may be  19 crucial because we are talking here about things that  20 happened a long time ago.  And most of the elderly  21 witnesses we put up front on the trial for a reason  22 and that was because of their health concerns and  23 everything else, if we didn't have them by commission.  24 In fact, this -- questions related to this were put to  25 Mr. Williams once this notice of motion was served on  26 us, Stanley Williams, whose commission evidence  27 completed a week ago.  But I submit that it -- and of  28 course it was set out on the record that that was  29 without prejudice to our position on this amendment  30 and understood by all parties.  31 MR. GOLDIE:  It was not.  32 MR. GRANT:  Well, with respect —  33 MR. GOLDIE:  Well, I'll deal with this later, but my friend put  34 questions, quite improper questions, to the witness in  35 anticipation that this amendment would be allowed.  36 Having done that, he's stuck with the consequence.  37 MR. GRANT:  Well, I raised it with Mr. Plant who was present and  38 he understood that that was not an agreement that we  39 were consenting to the amendments, My Lord.  40 In any event, My Lord, it is in my submission  41 incomprehensible why there is any reason why the  42 province could not have developed this defence and put  43 it in this case long before now.  When these matters  44 were argued fully before the Court of Appeal on the  45 injunctive relief, when paragraphs 1 to 6, and my  46 friends raised it in February, I explained them or  47 interpreted them, that -- certainly my 5851  Submission by Mr. Grant  1 interpretation -- it puts much greater weight on my  2 interpretation than I myself would do.  My  3 interpretation certainly doesn't cause such great  4 concern to raise an entirely new defence for the first  5 time.  6 THE COURT:  Well, is it a defence that has to be pleaded at all?  7 MR. GRANT:  Well, the factual matters that are in paragraph 39 B  8 I submit have to be pleaded, and that's why I'm saying  9 presumably that's why they've done that.  10 THE COURT:  But those matters are all admissible under other  11 pleadings already in either the statement of claim or  12 the defence, are they not?  I've heard all kinds of  13 evidence about the expenditure of the crown in  14 maintaining highways and things of that kind.  I've  15 heard of licences and benefits and they were all  16 admitted without objection from either side, and both  17 sides raised that.  Mr. Goldie's entire alienation  18 project relates more or less to that same area, does  19 it not?  See, I understand the sound of it, but not  20 the fury.  These matters are all before the court  21 already.  22 MR. GRANT:  Well, this is a — and I think Mr. Goldie quite  23 rightly said in terms of these there's some other  24 amendments that he's raised that are clearly putting  25 matters in issue, but they're minor, but this is  2 6 presumably a substantial amendment. I mean --  27 THE COURT:  Well, that's what I'm asking you.  Is it a defence  28 that even has to be pleaded?  Surely if I come to the  29 point where I've decided that the plaintiffs are  30 entitled to some discretionary remedy, surely it  31 isn't -- I'm not precluded from applying the law.  32 When I say that I mean equity, and I would have to  33 then consider the question of laches, whether it was  34 mentioned in the pleading or not, as a matter of law.  35 MR. GRANT:  Well, of course by the very phraseology of course  36 dealing with the discretionary remedy of the  37 plaintiffs, you're going to look at all the  38 surrounding circumstances and how to exercise your  39 discretion.  40 THE COURT:  I would only get to that point if I decided the  41 plaintiffs were entitled to some equitable or  42 discretionary remedy, equitable and therefore  43 discretionary I should think, and it seems to me that  44 this isn't a matter that makes much difference when  45 it's raised.  46 MR. GRANT:  Well, this, if it's simply — if it was simply the  47 last phrase on the second paragraph -- 5852  Submission by Mr. Grant  1  2 "This Defendant says that the Plaintiffs are  3 barred and estopped by their laches,  4 acquiescence and delay from asserting the  5 rights claimed by them against this  6 Defendant."  7  8 But that's what we were dealing with on page 18 of  9 the proposed amendment.  I think that that's right,  10 they would be pleading laches, and even if they didn't  11 plead it, if they were dealing with it with respect to  12 the discretionary remedies, then it's a matter that of  13 course the court can consider if you come to that  14 point.  But that's not what the -- that's not what  15 they've amended.  They haven't amended this paragraph  16 that way.  They've gone on and on, and presumably I'm  17 assuming that there's some logical reason for this,  18 that they are not just being verbose for -- to keep  19 everybody entertained, that they've gone on and on  20 about all of these details, which presumably have not  21 been pleaded before, otherwise why are they here?  I  22 mean, you can't add a paragraph that's a page and a  23 quarter or page and, whatever, a quarter long and say  24 well, it's already pleaded.  Well, if it's already  25 pleaded, then they don't need it.  And if it's not  26 already pleaded, then it's a little late in the day.  27 And I'm saying that yes, with respect to the comments  28 the court has that that last phraseology, if that's  29 all they're saying, okay, let's leave that in and  30 let's be done with it.  But let us delete the balance  31 of this paragraph or even delete that because, as you  32 said, that's a factor that you can take into account  33 if you come to a discretionary remedy rule.  34 So I submit, My Lord, that you should deny the  35 amendments with respect to that paragraph.  I don't  36 think Mr. Goldie really referred to paragraph 29 A and  37 37 --  38 MR. GOLDIE:  H.  39 MR. GRANT:  -- H, and I have no position on those.  Those are --  40 THE COURT:  All right.  Those orders will go then in case I  41 forget to mention them again.  Goldie?  42 MR. GOLDIE:  My Lord, what I'm talking about is basically a  43 technical amendment.  It is the counterpart of a  44 limitation argument.  To my knowledge such defences  45 are never -- amendments raising such defences are  46 never raised unless there's prejudice in the case of a  47 limitation argument.  The facts that are depended upon 5853  Submission by Mr. Grant  Submission by Mr. Goldie  1 are those alleged by the plaintiffs and we're saying  2 that if those are the facts upon which you rely,  3 you're late in the day raising this case, and we have  4 done that in the context of the understanding of the  5 paragraphs 1 to 6 that my friend advanced to your  6 Lordship a few weeks ago.  7 MR. GRANT:  February 12th.  8 MR. GOLDIE:  February 12th.  Thank you.  And my friend accuses  9 me of verbosity.  Prior to this we've been accused of  10 not providing enough particulars, and if I did expand  11 on Atkin's court precedence a bit, I don't think  12 that's sufficient to deny the amendment which, as I  13 say, is a technical one.  14 THE COURT:  Thank you.  Well, partly for the reasons that I have  15 just mentioned in my exchange with Mr. Grant and  16 partly because this is unusual and almost unique  17 litigation, I propose to allow the amendments because  18 I think it essential that all issues are properly  19 before the court whenever they're raised.  It is not  20 unusual in a case of this kind for there to be  21 amendments as the matter progresses.  I make no  22 promises, but it may be that the plaintiffs will seek  23 or find it necessary to seek an amendment.  I think  24 that I would try to accommodate any such application,  25 unless there is the most serious and overwhelming  26 prejudice, again, for the reasons I've just mentioned.  27 I am not at all convinced that Mr. Goldie's  28 amendment is necessary, but it is sometimes better to  29 have these things in writing and in black and white  30 and in the pleadings so that there is no doubt as the  31 matter progresses what the pleadings are, or what the  32 issues are rather.  I do not think the prejudice to  33 the plaintiffs by this amendment up to the present  34 time, if any, is of sufficient consequence not to  35 order the amendment of the pleadings in a matter of  36 this kind so that it can be properly fully and  37 completely litigated.  I would treat this application  38 almost as an amendment, if sought at the end of the  39 trial, as one which is usually granted to make the  40 pleadings conform with the evidence.  And as I say, I  41 think the evidence already is or will be before the  42 court upon which this plea, if it has any legal life  43 at all, would be based.  For that reason, as I say, I  44 think the amendment should go.  45 Mr. Grant, are you ready to proceed?  46 MR. GRANT:  I have -- as I said, I maybe should deal with some  47 other housekeeping -- 5854  Ruling by the Court  THE  MR.  THE  MR.  COURT  GRANT  Yes.  -- or proposals I should say more properly, just  advise the court where things stand.  COURT:  Thank you.  GRANT:  Last week the evidence of Stanley Williams, Gwis  Gyen, was completed, and that, barring future  unpredictable events, the plaintiffs anticipate that  that will be the last of our commission witnesses.  Now, My Lord, it's been raised by the court and by  counsel for Canada, in any event, and I believe for  B.C., as to how to deal with the commission evidence,  and I have here, and would ask of course, and maybe I  should take this opportunity to do it, to file as the  next exhibit Volumes 1 to 5 of the commission evidence  of Stanley Williams, and request -- I've already  provided the reporter with the exhibits themselves,  the originals of those exhibits themselves, and I'd  ask that that be the next number and that madam  registrar list them as she has been doing.  I also just as a matter of course was on the  Florence Hall commission and exhibits -- there were  some exhibits missing, these being ones I think that  were put in by the defendant, and I would file them  now, My Lord.  These I believe are the balance of the  exhibits and I can possibly --  COURT:  On Florence Hall?  GRANT:  On Florence Hall.  COURT:  Yes.  GRANT: I'll get the number of that exhibit, primary number.  I think they were filed in January or February. These  are Exhibits 2, 7A, 7B, 8, 9 and 10.  GOLDIE:  These are Florence Hall exhibits?  GRANT:  In Florence Hall's commission evidence.  GOLDIE:  My Lord, Mr. Mackenzie informs me that there's some  question about the numbering of the Florence Hall  exhibits, and would ask that that be deferred until  after lunch, and there is also a question of Lucy  Bazil's which is still outstanding.  Perhaps my friend  can be ready to address that after lunch.  There's correspondence I will -- I doubt if I'll be  able to deal with it after lunch, but we can deal with  it probably tomorrow morning.  In any event, maybe I  will --  All right.  Well, what number?  Florence Hall's commission evidence is Exhibit 239  and exhibits 1 -- the commission evidence, Exhibits 1,  47 3, 4, 5 and 6 were already tendered.  These are crown  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  2 6 THE  2 7 MR.  2 8 THE  2 9 MR.  30  31  32 MR.  33 MR.  34 MR.  35  36  37  38  39  4 0 MR.  41  42  43  44 THE  4 5 MR.  46  GRANT:  COURT  GRANT 5855  Submission by Mr. Grant  1  2  3  4  5  6  7 THE  8  9 THE  10 THE  11 MR.  12  13  14  15  16 THE  17 MR.  exhibits -- and 2 and sequentially -- and I think the  concern expressed in correspondence from Mr. Mackenzie  was that some were exhibits for identification and  others were exhibits proper, and I think we can sort  that out, but the exhibits -- yes, we can sort that  out as to which ones are exhibits for identification.  COURT:  What number has been given to the commission  evidence of Stanley Williams?  REGISTRAR: It will be 446.  COURT:  And it will be A to F?  GRANT:  A to E for the transcripts.  (EXHIBIT 446 A-446 E:  Commission Evidence of Stanley  Williams, Volumes 1-5)  COURT  GRANT  COURT  GRANT  COURT  GRANT  18 THE  19 MR.  2 0 THE  21 MR.  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38 THE  3 9 MR.  40  41  42 THE COURT  43  44  4 5 MR  46  47  And the exhibits will be 446-1 to infinity?  Yes.  More or less .  I think there are 14, 13 or 14.  Thirteen.  Well, that's not --  It's all listed on the correspondence to madam  registrar.  (EXHIBIT  (EXHIBIT  (EXHIBIT  (EXHIBIT  (EXHIBIT  (EXHIBIT  (EXHIBIT  (EXHIBIT  (EXHIBIT  (EXHIBIT  (EXHIBIT  (EXHIBIT  (EXHIBIT  446-  446-  446-  446-  446-  446-  446-  446-  446-  446-  446-  446-  446-  1  2  3  4  5  6  7  8  9  10  11  12  13  Seating plan of Gwis Gyen)  Affidavit of S. Williams/March 30, 1988)  Translation affidavit of Alice Sampson)  Bound sketch maps of 24 territories)  Will of Chief Aukes)  Genealogy of Hax bagwootxw)  Transcript; first cut of Hanamuxw's pole)  Letter from D. Wells to M. Wesley)  Draft Map - Schedule C to interrogatories)  Letter from S. Williams/April 12,1971)  Affidavit of S. Williams/ Nov. 23,1987)  Translation affidavit of Alice Sampson)  Food fish licence 11592)  COURT:  All right.  Is that satisfactory, Mr. Goldie?  GOLDIE:  Yes.  Are those exhibits identified as to those  which have been marked for identification?  I don't  think I've seen that.  If they are marked on the commission for  identification they will be marked here for  identification as well, unless counsel raise that.  GRANT:  I think all exhibits because of the form of the  stamp used by the reporters, all exhibits are marked  for identification. 5856  Submission by Mr. Grant  1 THE COURT:  All right.  Well, then the transcript will govern —  2 I'm sorry, they were all marked for identification?  3 MR. GRANT:  Well, when I say that, the stamp indicates they're  4 all for identification, whether they are or not --  5 THE COURT:  Well, I'm going to treat them all as being exhibits  6 in the case unless counsel make a specific submission.  7 MR. GRANT:  Yes.  And I think that deals with the question of  8 objections generally on the commission evidence and  9 that maybe I can deal with at the end of my proposal.  10 THE COURT:  Well, if a position is reserved on the transcript  11 with respect to an exhibit, then I'll hear counsel on  12 it if they wish.  13 MR. GRANT:  I think at some point it would be appropriate for  14 counsel.  I intend to review it and consider the  15 objections and the position regarding each of the  16 exhibits.  17 MR. GOLDIE:  Two very different things about objections and the  18 marking of exhibits.  19 THE COURT:  Oh, yes.  Yes.  20 MR. GRANT:  Well, I meant objections as to whether an exhibit is  21 an exhibit proper or an exhibit for identification,  22 that's what I was referring to.  There are 12 -- there  23 are 12 commission witnesses, My Lord, and they vary in  24 length.  The plaintiffs have grappled with this and I  25 sent a proposal to my friends regarding it and Mr.  26 Goldie suggested that of course the proposal could not  27 be subject to agreement of counsel, but to ruling of  28 the court, and I agree with that.  I just wished to  29 canvass them as to their views and I'm not certain  30 what their views are.  But what I propose as a  31 practical solution to this problem, of course in the  32 normal case it seems to me that the court reviews the  33 video of a witness given on commission and I think  34 that it would be, if not unrealistic, I think it would  35 be a formidable task.  3 6 THE COURT:  Arduous.  37 MR. GRANT:  Arduous.  And as the court once suggested that you  38 may require, and probably counsel would all have to go  39 through it.  We all have a mutual interest in  40 resolving it.  What I propose is that the court look  41 at the commission evidence in total of up to four of  42 the 12 witnesses, two of these witnesses to be  43 selected by the plaintiffs and one each by the  44 defendants.  And then, by agreement of counsel, by  45 consent, the court not look at unless you wish to or  46 there is something in the transcript that draws you to  47 it, the court not look at the commission evidence of 5857  Submission by Mr. Grant  1 any of the other eight witnesses by video, but review  2 the transcripts and determine that evidence by way of  3 the transcript.  4 And of course at some time, and I would propose it  5 sometime before the summer recess, counsel would agree  6 as to which witnesses -- we would determine which two  7 witnesses we would propose, and then the defence would  8 propose, and then we would look at the other  9 commission witnesses and counsel would -- possibly a  10 day could be set aside or half a day to deal with  11 objections relating to those witnesses' transcripts of  12 which you would read, if there are any.  13 And I submit that this is a practical resolution  14 and I don't -- and I say that this is almost, I take  15 your words, that this is a unique piece of litigation  16 as my sole foundation for that because I think that it  17 would be so arduous to have the court look at all the  18 witnesses that it's just unrealistic.  And the effort  19 in this proposal is an element of fairness and I can  20 advise the court the way the plaintiffs would divide  21 it up, although I'm not able to say yet which two, is  22 that the reason we say two is because the plaintiffs  23 wish you to see a Gitksan and a Wet'suwet'en witness  24 on the commission.  That will be the division that we  25 make, but -- and that's why I say require two.  26 Now, the counsel for the defendants may say well,  27 we'd like you to see two or three, and if that's what  28 they wish you to see, then I think they can raise  29 that.  But I'm not -- I have heard nothing back except  30 Mr. Goldie's -- I've heard nothing back from federal  31 crown.  Mr. Goldie advised I should raise it with the  32 court, so I'm not sure of their position on this, but  33 I submit that this would give you an opportunity to  34 see witnesses selected by all parties that you would  35 not -- you otherwise do not have the opportunity to  36 see, and then you could get a sense of the evidence of  37 those witnesses.  38 And then the practical thing is that the evidence  39 of the other eight witnesses you would be able to  40 read.  And that's the proposal that I make, and it's  41 somewhat arbitrary.  I don't think it would be fair  42 for you to see clips of witnesses because I think -- I  43 don't think there could be easy agreement between  44 counsel as to how to clip a witness.  45 THE COURT:  I'd rather clip counsel if I could.  46 MR. GRANT:  And having led some of this evidence and seeing the  47 totality, I don't know, you may want to clip counsel. 585?  Submission by Mr. Grant  1 That's quite true for all parties, but in any event,  2 that's the proposal I wish to make.  3 THE COURT:  Is your proposal that I would look at the evidence  4 of these four witnesses in open court?  5 MR. GRANT:  Yes.  And then there would be -- then, for example,  6 with those four witnesses, you would of course have  7 the transcript, and with those four witnesses if there  8 were objections by either side -- and my reading of  9 the rules is that objections can be made in court even  10 if not made on the commission.  If there is  11 objections, then counsel would raise the objection and  12 that would be dealt with by you here at the time that  13 you canvassed the evidence.  14 The reason I raise this now is because if,  15 depending on the scheduling of the balance of the  16 witnesses, if there is time towards the end of the  17 spring or towards the end of June that it would be --  18 I would hope that one of these, at least one of the  19 commission witnesses you would have an opportunity to  20 see before the summer recess.  I'm not saying that as  21 as a scheduling goal, not necessarily.  I'm not saying  22 that that would be finalized.  23 And that's the proposal that I wish to make and I  24 suggest it's a practical solution to it.  And then we  25 could, as I say, schedule a time to deal with  26 objections of the other eight witnesses and it may be,  27 for example, that when the defendants see the two  28 witnesses that we wish, those are the two witnesses  2 9 they wish you to see and maybe we won't have two  30 witnesses, that would be up to them, but it would be a  31 practical resolution because it seems to me from  32 comments that no counsel really wants you to have to  33 go through the 12 witnesses by watching the videos.  34 THE COURT:  Well, I'm grateful for —  35 MR. GRANT:  That's my reading of it, but I'm happy to hear, or  36 I'm not happy to hear, but I'd be interested to hear  37 if any counsel want to say that to you.  38 THE COURT:  Without disclosing what you -- which two you want me  39 to see, can you indicate how long they would take?  40 MR. GRANT:  Well, as I say, I've just got a summary.  The  41 transcripts go from one volume to eight volumes per  42 witness and until I could make an -- until we make a  43 decision as to the two witnesses that I would like,  44 you know, I can't really tell you.  45 THE COURT:  Does eight volumes mean eight days?  46 MR. GRANT:  Does eight volumes mean eight days?  Well, no, in  47 the case of Stanley Williams one volume means three 5859  Submission by Mr. Grant  1 days, but that's with translation.  You can see that  2 transcript beside madam registrar there, those  3 transcripts there, that represents 12 days of  4 commission evidence.  There's of course a lot of -- he  5 was fully translated.  6 THE COURT: And of course on the tape we'd be both seeing and  7 hearing the evidence in both languages, the  8 examination of both languages?  9 MR. GRANT:  Yes.  Yes.  10 THE COURT:  All right.  Well, what do your learned friends say?  11 Goldie?  12 MR. GOLDIE:  Well, My Lord, Mr. Grant is quite right.  It's a  13 matter that's of considerable importance.  The reason  14 I said that I didn't think agreement was an  15 appropriate way to approach this is that if the  16 evidence in question is going to be evidence in the  17 case the decision is Your Lordship's.  But first  18 perhaps I might restate the considerations which we  19 have before us.  20 Firstly, the 12 witnesses who gave evidence on  21 commission took approximately 56 court days to give  22 their evidence.  The general objections were deferred,  23 there was no examiner, and it did not seem to be a  24 very practical proposition to raise an objection, come  25 back to Vancouver, have it ruled on, and carry on.  26 And the third consideration besides those two is the  27 question of the use of video.  Now, the video is  28 chiefly related to credibility and that of course is  29 in respect of that witness alone.  You can't take a  30 look at somebody giving evidence on video and say  31 well, I accept him as a credible witness, and extend  32 that to somebody else.  It might be useful if it could  33 be done, but it can't.  34 THE COURT:  I'll have to give you the measurements of the  35 distance between the witness' eyes.  That will do it.  36 MR. GOLDIE:  Nor have we -- well, I'll defer my next comment,  37 but it seems to us that it is inescapable that Your  38 Lordship may have to see, if not clips, at least the  39 beginning of each witness' evidence in chief and each  40 witness' cross-examination, and I don't see any way  41 out of that if there's a question of credibility.  42 THE COURT:  Well, is there a question of credibility?  They're  43 not your witnesses, so you're the one that really --  44 presumably Mr. Grant puts them forward as credible  45 witnesses.  46 MR. GOLDIE:  Well, and that's of course a comment I was about to  47 make that the -- it's not up to the plaintiff to 5860  Submission by Mr. Goldie  1 select witnesses, as presumably he says they're all  2 credible.  The difficulty for the defendants is to  3 come up with something that doesn't require Your  4 Lordship to spend the equivalent of 56 court days  5 watching the video of these witnesses, despite the  6 fact that Mr. Justice Addy in the Apsassin case said  7 it was a very important aspect.  8 Each one of these witnesses has different  9 characteristics.  No one is the same as another.  Each  10 one of them was elderly, and each one of them was a  11 distinct individual.  My feeling is that there is a  12 compromise between Mr. Grant's suggestion and  13 something short of viewing the thing as a whole is  14 that Your Lordship do indeed see the beginning or a  15 segment of each witness.  Let the plaintiffs select  16 whatever they consider to be the introduction to the  17 evidence or however will convey to Your Lordship the  18 nature of the person giving evidence, and let the  19 defendants, and I include Canada because it was  20 present at some of these to the extent that it -- and  21 this is applicable only to Canada where it was  22 present, let that defendant or those defendants select  23 a segment not more than 15 minutes which would support  24 any submission they wish to make with respect to how  25 Your Lordship is to view that evidence.  26 Now, I haven't resolved yet the question of how we  27 deal with the issue of credibility, whether it is up  28 to us to, as Your Lordship suggested a minute ago,  29 whether it is up to us to say we think it desirable  30 for Your Lordship to see clips from witnesses eight,  31 nine and ten, or whether it is appropriate to say,  32 having regard to Mr. Justice Addy's comments in the  33 Apsassin case, for Your Lordship to see, without any  34 selective process other than the clips, something from  35 every witness.  That's something that has given us  36 some concern and we're still debating it.  37 Now, the question of objections, and I'm putting  38 to one side video because as far as I'm concerned the  39 video is primarily related to the weight that Your  40 Lordship is going to give.  Credibility is in some  41 respects too precise a word.  I prefer weight in this  42 question, but now going to the question of objections,  43 which my friend referred to a few minutes ago, when  44 most of this evidence was given Your Lordship had not  45 ruled on the question of reliance upon living  46 witnesses, that is to say, hearsay which is based upon  47 living witnesses.  Since that ruling, the plaintiffs 5861  Submission by Mr. Goldie  1 have endeavoured to confine their hearsay evidence to  2 that which depends upon people who are dead.  We have  3 still under consideration whether the appropriate way  4 for us to approach that is to indicate what sections  5 of the evidence of those witnesses is subject to that  6 ruling, and therefore should be disregarded before  7 Your Lordship even begins the task of reading the  8 transcripts.  9 Now, the other type of objection is that which is  10 raised that doesn't deal with reliance upon living  11 witnesses.  That we would have to deal with when the  12 evidence is read in or when Your Lordship reads the  13 evidence.  And if my friend takes the view that a day  14 should be set aside for that, well, that may be one  15 way of doing it.  It will take probably more than a  16 day.  17 So that there are still a number of questions that  18 have to be dealt with before we could be more  19 definitive than I have been this morning.  I'm simply  20 giving Your Lordship the result of the consideration  21 we've given it so far.  22 THE COURT:  Thank you.  Macaulay?  2 3 MR. MACAULAY: My Lord, we didn't answer Mr. Grant's letter in  24 part because we weren't present at some of the earlier  25 commission evidence and haven't yet looked at the  26 video.  I agree with my learned friend Mr. Goldie's  27 submission that looking at the videos is mainly for  28 the purpose of determining whether a witness is a  29 reliable witness whose evidence should be given great  30 weight or not.  And I don't see how either the  31 plaintiff or the defendants can assist Your Lordship  32 by giving Your Lordship a list of witnesses.  33 Presumably the result of that would be that Mr. Grant  34 would select witnesses who, in his opinion or the  35 opinion of his advisors, looked best on video, and we  36 would be expected to then cast around for witnesses  37 who didn't look quite so good on tape.  That would be  38 unfair, and it would be unfair to the witnesses that  39 we chose, the general evidence of the plaintiff, and  40 the -- I don't think that that's a viable proposition.  41 It might give a -- in the end give a distorted view of  42 the credibility and reliability and soundness of the  43 plaintiffs' witnesses, which would not assist the  44 plaintiffs.  45 The alternative, of course, the one alternative is  46 for Your Lordship to look at all the videos, and I'm  47 not suggesting that that be done.  There is also a 5862  Submission by Mr. Goldie  Submission by Mr. Macaulay  1 problem in each of the counsel's selecting excerpts  2 from each witness' evidence.  Again, that might be  3 quite unfair to the witness.  Some of them are elderly  4 witnesses, most of them are fairly old, elderly  5 witnesses, and because of their health and so on some  6 had bad days and good days.  If we were, counsel for  7 the province or ourselves, were to select exclusively  8 the bad days, clips from the bad days of certain  9 witnesses, that would provide another distortion.  10 The remaining alternative is to perhaps do it  11 mechanically, and that is to select the first 15  12 minutes of the examination in chief and then ten  13 minutes of each of the cross-examinations or of the  14 one cross-examination in the many cases where there  15 was only one cross-examination.  We expect that Your  16 Lordship will in some cases, having read the  17 transcripts, want to look at some additional clips or  18 all of the evidence of some witness, but that would be  19 for Your Lordship to decide.  20 I hope this can be done in stages, that is, that  21 we tackle two or three witnesses at a time through the  22 rest of this case so that we're not faced with a  23 medieval-style siege.  So that we could do two or  24 three witnesses and then get on with viva voce  25 evidence and get on with other witnesses.  26 And I suggest the same be done regarding  27 objections, that we deal with them two or three  28 witnesses at a time, set aside a morning for two or  29 three witnesses, and then another day -- very often  30 that would suit the plaintiffs. They finish with a  31 witness at noon, and rather than call their next  32 witnesses we can address some of the -- or rather than  33 adjourn it, deal with some of the commission evidence  34 obj ections.  35 THE COURT:  Well, what's the objection to long long sitting  36 hours and getting it done?  You don't all have to be  37 here.  You can spell each other off.  38 MR. MACAULAY:  I'm not thinking of counsel's convenience, I'm  39 thinking of the effect on the court of putting in long  40 sessions.  41 THE COURT:  Oh, I think that's kind, Mr. Macaulay, I appreciate  42 that, but —  43 MR. MACAULAY:  Not intended to be kind, My Lord, it's intended  44 to avoid the situation where Your Lordship at the end  45 of the day can't recall the last hour and a half.  46 THE COURT:  Well, I'm really looking at it from the point of  4 7 view of impression. 5863  Submission by Mr. Macaulay  1 MR. MACAULAY: Yes.  2 THE COURT:  But I understand what you're saying and I appreciate  3 what you're suggesting.  4 MR. MACAULAY: I've always considered as counsel when I've had  5 the misfortune of being in court when the presiding  6 judge decided to sit eight hours or nine hours that  7 that's never been very satisfactory.  8 THE COURT:  No.  Lawyers tend to be very short when you sit too  9 long.  But we've had to keep reasonably regular hours  10 because of the witnesses in this case more than almost  11 anything else.  12 MR. MACAULAY:  We can spell each other off, but Your Lordship  13 can't.  14 THE COURT:  Well, that's unfortunate.  There's nothing that can  15 be done about that.  Well, I'm sorry, I interrupted  16 you, Mr. Macaulay.  I wanted to ask you about that one  17 point.  18 MR. MACAULAY:  But coming back to the most important matter of  19 the selection of excerpts, it's just as well that it  20 be done mechanically as it be done by counsel who are  21 selecting the very best and the very worst.  I'm not  22 suggesting that that will be the result, but it might  23 be.  There's another thing, if a witness has only  24 given evidence for one day, it would provide a  25 distortion I suppose to watch the same number of  26 minutes of that witness as compared to the evidence of  27 Stanley Williams who went on for many days, and  28 perhaps it would be more appropriate to have an hour  29 of Mr. Williams' evidence and only ten minutes of the  30 evidence of a witness who was much shorter.  31 Those are my submissions, My Lord.  32 THE COURT:  All right.  Thank you.  Mr. Grant.  33 MR. GRANT:  Well, my main concern, and Mr. Macaulay raised it,  34 about this concept of excerpts, is that I think that  35 that is the most prejudicial way of dealing with it.  36 The reason I proposed that we select certain witnesses  37 was that for you to have an assessment of the  38 credibility of a witness, I think you should see what  39 the witness says.  And the first 15 minutes of direct  40 and cross with some witnesses can be their, of course,  41 time of highest nervousness or not feeling well.  And  42 I don't think even the mechanical approach is the  43 solution.  I think if the vidoes are to be used for  44 credibility, then I don't think we have much solution  45 but to look at those and see how the witness carried  46 themselves throughout the commission.  47 And of course some of these were, such as Mr. 5864  Submission by Mr. Macaulay  Submission by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR.  MR.  Williams -- they were all for health reasons, but the  plaintiffs say that it is important as part of the  plaintiffs' case for you to see these witnesses as  though you had seen them in court, and that's why we  say we have a right to say to you we would like you to  see this witness or that witness.  THE COURT:  Yes, I understand.  MR. GRANT: And also maybe -- my mind is turned off because it's  12:30. There was one other point I wished to make. I  can't quite strike it.  Well, I would like to resume this briefly after  lunch anyway because I haven't read what Mr. Justice  Addy said, and I wonder if counsel can find that for  me and I can look at it first thing this afternoon?  GRANT:  Yes.  MACAULAY: My Lord, could we address after lunch another  thing, and perhaps -- I wanted Mr. Grant to be in a  position to have thought about it, and that is the  order of march from now on?  We only have the name of  the witness who is about to give evidence and the next  one.  COURT:  Yes.  GRANT:  I spoke to that this morning and I'll advise Mr.  Macaulay what I said.  COURT:  We spoke about that before you arrived Mr. Macaulay.  MACAULAY:  All right.  COURT:  All right.  Two o'clock.  Thank you.  REGISTRAR: Order in court. This court will adjourn until  two.  (PROCEEDINGS ADJOURNED AT 12:30)  I hereby certify the foregoing to  be a true and accurate transcript  of the proceedings herein to the  best of my skill and ability.  Tanita S. French  Official Reporter  THE  MR.  THE  MR.  THE  THE 5865  Proceedings  1  2  3  4  5 1        (PROCEEDINGS RESUMED AT 2 O'CLOCK P.M.)  2  3 THE COURT:  Anything else anyone wants to say about this  4 fascinating subject?  5 MR. GOLDIE:  My lord, I made reference to Mr. Justice Addy's  6 judgment.  I have given the registrar the cover page  7 and pages 12 to 17.  If that might be --  8 THE COURT:  Could I just glance at it, please, madam registrar?  9 Thank you.  10 MR. GOLDIE:  The -- this is an extract from his final judgment  11 which runs to 120 odd pages, but from 12 to 17, he  12 deals with the question of the commission evidence of  13 some 77 witnesses, and -- which was taken before  14 somebody appointed as a questioner.  Now, the comment  15 he makes with respect to the camera or the use of  16 video, commences on page 15 where he says:  "The  17 experience of listening to videotape evidence in lieu  18 of viva voce evidence at trial, has led to several  19 observations."  Then he talks about the placement of  20 the camera, which I don't think will be a problem  21 here.  22 And then he goes on to say -- well beginning at the  23 bottom of the page:  "However, it is much more tedious  24 in trying to listen to videotaped evidence as it lacks  25 the life and reality of oral evidence at trial and as  26 the judge can exercise no control whatsoever over over  27 how it is adduced.  Should improper, leading or  28 irrelevant questions be asked or answers be given  29 obviously he is in no position to interrupt thea flow  30 of evidence and must at a later date decide what  31 answers are to be disregarded."  32 Well, that problem is inherent in commission  33 evidence in any event.  34 THE COURT:  Sure.  35 MR. GOLDIE:  "Should the record contain many such inadmissable  36 answers from various witnesses in a lengthy case such  37 as the present, the task of dealing with them ex post  38 facto can become unnecessarily tedious."  39 He then says it should take place before somebody  40 experienced.  Then he says:  "In the case of bar the  41 taking of commission evidence was not controlled and  42 so on and so forth."  Then he said, "Finally, and  43 perhaps more importantly, in the case of the witnesses  44 who testified in the English language it became  45 abundantly clear that in many instances the  46 transcript, although faithfully reproducing the spoken  47 words, often failed to convey to the reader the true  5866  Submissions by Mr. Goldie  1 meaning and conclusions to be drawn from the witnesses  2 answers.  One can well imagine the even greater  3 discrepancies which occur when the gist of the  4 transcript is the product of an interpretation."  And,  5 he enlarges a bit upon that.  6 About halfway down the next paragraph:  "It also  7 brings to light the obvious advantage of having  8 videotaped evidence at hand as part of the record  9 where any question might arise on appeal as to the  10 validity of finding of fact in the context of certain  11 answers of a witness.  The spoken word and the visual  12 impression are both preserved as part of the record  13 to explain and at times even upset the conclusions  14 that one might otherwise come to by a mere reading of  15 the transcript."  16 I pause there --  17 THE COURT:  The Court of Appeal wouldn't look favourably upon  18 that suggestion.  19 MR. GRANT:  You could pass it on to them, my lord, and say I  20 concur that they can look at it but I don't want to.  21 MR. GOLDIE:  But, unfortunately, that points up one of the  22 difficulties of dealing with excerpts or things of  23 that order, that the entire transcript is part of the  24 record, transcript and videotape.  Then he said:  25 "Having read the transcripts previously, I was quite  26 suprised to note the degree to which some of my  27 original impressions as to the effects of the evidence  28 were either modified or completely changed upon  29 viewing the actual videotape recordings."  And I take  30 that to mean not just an issue of credibility, it's a  31 question of the what I call the weight.  And then he  32 goes on to say:  "It should normally be videotaped  33 with full sound recording."  Well, that's all been  34 done.  35 Having listened to the comments that have been  36 made, I am inclined, my lord, to support a couple of  37 Mr. Macaulay's suggestions.  Firstly that, we should  38 try and deal with one or two of these things on a full  39 scale basis as a trial run and see if that will  40 provide us with some guidance to any shortcuts which  41 become desireable.  And that -- that basically, is  42 what I think we are going to have to do, rather than  43 trying, before the event, to devise some shortcuts  44 which won't be open to somebody's criticism.  45 THE COURT:  Thank you.  Mr. Grant?  46 MR. GRANT: Well, the reason I didn't bring Mr. Justice Addy's  47 comments, that is when one reads that whole 5867  Submissions by Mr. Grant  1 description, what he really says is one looks at all  2 of everything and I -- the last comment by Mr. Goldie  3 may be the closest to which we have this week come  4 upon an agreement because that may well be the  5 approach and the reason I want to raise it now was  6 that so we could try to schedule or recommend a  7 schedule and as part of our case lead the evidence of  8 one or two of these witnesses and lead it in its  9 entirety, and that may be an approach.  I would like  10 to commence to grapple with that, time permitting and  11 scheduling permitting, before the summer recess  12 because I do agree with Mr. Macaulay's suggestion that  13 it's not really reasonable, I don't think, for us to  14 say let's take the next 56 days and watch some  15 television.  I think that that might certainly take  16 some of the stimulus out of the case.  17 THE COURT:  It would take more than that to accomplish that  18 objective, Mr. Grant.  19 MR. GRANT:  Yes, I forgot there are objections and exhibits and  20 all kinds of things we can still get excited about and  21 keep ourselves awake.  But, of course, the trouble  22 with this is, of course, what we are looking at is,  23 you are looking at the face, it's a full on view,  24 basically it's a still shot of the person and that  25 after about two minutes the stimulation of watching  26 viewing, is hard to keep track of.  But I would like  27 to grapple with it, but I don't know if my friends are  28 going to put further proposals in writing or what.  I  2 9 have thrown my gambut in.  30 THE COURT:  Anything else Mr. Macaulay?  31 MR. MACAULAY:  I have no other suggestion to make.  I agree with  32 Mr. Grant, if you follow the, what Mr. Justice Addy  33 says, we are in for a long siege.  34 THE COURT:  We are not going to do that, are we?  Well, I will  35 not presume to pronounce authoritatively at the  36 moment, but I will give counsel the benefit of my  37 thoughts as they have given me the benefit of theirs.  38 Firstly, I am grateful to counsel and relieved to hear  39 that none of them think that it is necessary to view  40 all 56 days of the commission evidence.  41 Secondly, and with the greatest of respect to Mr.  42 Justice Addy, it seems to me that I must very largely  43 be governed in this case by my study of the  44 transcript.  Watching videotape evidence is not  45 conducive to a detailed examination of the evidence,  46 as is required when considering what conclusions to  47 reach both about the weight to be given to the 586?  Submissions by Mr. Grant  1 evidence and the details of it.  That's a matter that  2 requires investigation of other matters between  3 sentences and paragraphs, and checking documents and  4 looking at things analytically, which can't be done  5 while the tape is running.  One can't even keep notes  6 of evidence effectively when it's being given by a  7 videotape because you can't ever be sure that you have  8 got something right and you can't stop the tape to ask  9 the witness if your note is accurate.  So I think, for  10 practical purposes, I have to rely on the transcript  11 in most respects.  12 I have the view that it is counsels' privilege to  13 say what they think I should see, something that -- in  14 their responsible view, I should see.  If they say  15 that, I think I should do it.  Further, as I think  16 that this is a question not just of credibility,  17 although that's included, but more a question of  18 demeanor going to weight, that I should see a sampling  19 of each witness.  I say that mainly because the  20 physical condition of each witness is a matter that  21 judges pay attention to.  If I have a very infirm  22 witness, who shows real difficulty of comprehension, I  23 will make allowances for translation, and the  24 difficulties of being a witness.  Then, of course, I  25 can't put as much weight to the evidence as I might if  26 I just read the transcript.  27 In addition, of course, the long pauses making,  28 again making all just allowances for the differences  29 between witnesses, may be significant and I think I  30 should get some sense as to how each witness gives his  31 or her evidence, and for that reason I think I should  32 see half an hour of each witness.  Subject to that,  33 and those, I am sorry, and those passages can be  34 picked at random, because I am going to be, as I say,  35 relying mainly on the transcript anyway.  36 So, what it comes to, I think, is that we are going  37 to have a siege of some kind, and I think counsel have  38 to tell me what parts of the evidence of what  39 witnesses they think I should look at.  And if either  40 side thinks I should see the evidence of a complete  41 witness, as a control function, then so be it.  But, I  42 will watch, within reason, whatever counsel tell me I  43 should see.  I think I depart from counsel slightly,  44 in respect to how this is to be done.  I am prepared  45 to do it in phases, but because of the difficulties I  4 6 have mentioned in watching video evidence, and the  47 limited judicial function that's involved in that, 5869  Submissions by Mr. Grant  1 apart from viewing, I think that we should sit very  2 long hours.  I am quite prepared to break it up into  3 segments as counsel advise, but when we are doing it,  4 I think that we ought to get at it and get it done.  5 And if there is -- if it's necessary to sit from eight  6 to ten and from 10:30 to 12:30, and then Two to four  7 and then seven to nine, I think we should do that at  8 least for a few days and see how we get along.  9 Counsel can spell each other off, there is no need for  10 a reporter to take it down, and madam registrar can  11 get some relief as well, if she feels she doesn't want  12 to be here the whole of the time, although I think she  13 will probably want to be here for it all.  I am going  14 to leave it to counsel to prepare a list of what they  15 think I should see and when they have done that I  16 think we should talk about video again.  17 MR. GRANT:  And you say that's the plaintiffs' counsel as well?  18 THE COURT:  Yes, all counsel.   All right.  Thank you.  I am not  19 absolutely firm on the hours I mentioned as a  20 possibility but I don't see much wrong with that.  21 It's something to be endured and I think we should  22 endure it.  23 MR. GRANT:  Yes, although there was, as indicated, a number of  24 days, 56 days, I am not sure I didn't have the track  25 that Mr. Goldie had but some of those days wtih  26 witnesses were a two hour day.  So we could probably  27 get a large -- well, whatever approach we take --  28 THE COURT:  The problems with video is that pauses you have  29 there are going to be here too.  30 MR. GRANT:  Yes, what I mean is that often the witness could not  31 go in the afternoon.  32 MR. GOLDIE:  The calculation was made on the basis of court  33 days.  34 MR. GRANT:  Oh, four and a half — I see.  35 THE COURT:  Is it?  So 56 days is actual?  36 MR. GOLDIE:  No, 56 court days.  That was spread over a much  37 longer calendar period.  38 THE COURT:  But did you take the total videotaped hours and  39 divide by four and a half to get 56?  40 MR. GOLDIE: Yes.  41 MR. MACAULAY:  It was more like 83 or 85 or 90 or something like  42 that.  43 THE COURT: Gets worse as we go along.  Let's get on to some  44 evidence.  45 MR. GOLDIE:  We become more pliable as it gets worse.  4 6 THE COURT:  Yes.  47 MR. GRANT:  I would call the next witness to the stand, my lord, 5870  S. Marsden (For Plaintiffs)  In Chief by Mr. Grant  1 and that is Chief Xamiaxyeltxw, Solomon Marsden, and  2 Miss Stevens, who was the word person last -- latterly  3 for Tenimgyet, will be the word person, and Mr.  4 Marsden will give his evidence entirely in Gitksan,  5 and I am asking Miss Alice Sampson to be the  6 interpreter.  7 THE COURT:  Thank you.  8 MR. GRANT:  And she has translated for the witnesses before.  9  10 ALICE SAMPSON, Interpreter:  11  12  13 SOLOMON MARSDEN, a witness called on  14 behalf of the plaintiffs, after first  15 being duly sworn, testified as  16 follows:  17  18 THE REGISTRAR:  I caution you, interpreter, you are still under  19 oath.  You have been sworn before.  20 THE REGISTRAR:  Would you state your full name for the record  21 and spell your last name?  22 MR. GRANT:  I will spell the name.  23 A   Solomon Marsden.  24 MR. GRANT:  M-A-R-S-D-E-N.  25  26 EXAMINED IN CHIEF BY MR. GRANT:  27  28 MR. GRANT:    Before I commence, I would just like to give the  29 court some indication of the evidence of this witness.  30 Mr. Marsden a Kitwancool chief, and actually his name  31 is -- what number is it on the plaintiff's list?  32 THE TRANSLATOR: 85.  33 MR. GRANT:  Number 85 on the plaintiffs' list, Xamlaxyeltxw.  34 And he will be giving evidence, the principal focus of  35 his evidence will be about the laws of the Gitksan and  36 as has been argued with other Kitwancool chiefs, and  37 it's clear from the pleadings they are Gitksan.  And  38 this particular person has knowledge of the laws and  39 he will describe those.  40 As part of his background, I am going to be asking  41 him part of his own oral history, just to give the  42 court a sense of his knowledge and, of course, the  43 court allowed in I think it was Chapter 1 of the  44 Kitwancool claim a few days ago, and he will in the  45 course of that refer to his territory.  And in terms  46 of his own personal background, references will be  47 made to that.  But I wish to be clear, of course, that 5871  S. Marsden (For Plaintiffs)  In Chief by Mr. Grant  1 his territory is not part of the subject matter of the  2 action.  And it's not for that intent that I am  3 leading it.  4 MR. GOLDIE:  My lord, I think I should put my friend on evidence  5 notice that any evidence he gives about in witness'  6 territory opens him up to complete cross-examination.  7 THE COURT:  Well, I am not sure I understand that, Mr. Goldie.  8 Surely, once the witness is sworn he is opened up  9 complete cross-examination.  10 MR. GOLDIE:  No, I mean that he makes in relevant if he  11 questions him about his own territory.  This has got a  12 bit of history behind it.  When I examined Mr.  13 Sterritt for discovery, objection was taken to my  14 questions relating to the territory of the Kitwancool.  15 And it was made very clear to me that the Kitwancool  16 are not part of this action, Mr. Marsden is one of the  17 people designated in paragraph 51 of the statement of  18 claim as not being a plaintiff.  Now, if he gives any  19 evidence relating to the Kitwancool, then I -- and, I  20 will be making a submission with respect to the  21 relevance of that evidence, but I felt I ought to make  22 my position quite clear in case my friend was saying,  23 you can't object at some later point or you can't ask  24 questions about that because I am limiting the scope  25 of the evidence.  26 MR. MACAULAY:  I will have this difficulty, that I think Mr.  27 Grant ought to know about.  We have not examined the  28 Kitwancool trapline files, I am talking about the  29 Indian affairs trapline files now, the Kitwancool  30 estate files, the Kitwancool band council files, the  31 Kitwancool Tribal Council files and the other things  32 too numerous to mention.  33 In cross-examination, I may find myself required to  34 refer to some of that material, to look at it and  35 refer to it and my friend won't have had any notice by  36 way of lists.  The best I can do for him is to give  37 him copies as I come across them.  Now, I am saying  38 this in a vacuum, I don't know what kind of evidence  39 is going to be led about Kitwancool territory and I  40 have no idea whether Mr. Marsden is, his name or  41 ancestors appear in any of these files.  We haven't --  42 we had considered them to be irrelevant.  And only for  43 that reason, not disclosed them.  So, there is a  44 practical problem.  45 THE COURT:  All right.  Thank you.  Your friends are loading you  46 with notice, Mr. Grant.  47 MR. GRANT:  Yes, my lord.  I just want to be very clear, because 5872  S. Marsden (For Plaintiffs)  In Chief by Mr. Grant  I don't believe Mr. Goldie was here a few days ago  when Mr. Adams was dealing with this matter with Mr.  Mackenzie.  But, my understanding when it came to the  territories of Kitwancool and Mr. Adams made it clear  what we saw was relevant relating to that land claim,  was that any claim by the Kitwancool to any portion of  the territory which is the subject matter of this  action, we cannot argue is not relevant.  But other  than that, the Kitwancool claim and territorial claim,  and I understood that that was -- that the court --  that that was the way things were left.  As I  indicated to the court, the evidence of this witness  is with respect to the laws of the Gitksan and he will  refer, of course, to his relationship with other  Gitksan.  My understanding is that his territory does  not overlap, does not border on, that is, the  territory of Xamlaxyeltxw, on this territory.  I  indicated to my friend when he asked for particulars  of his territory, that his territory -- no maps are  going to be produced of it, or anything else, just the  most general description to give you a sense of the  history he talking about. And we will argue the  relevance of my friends' questions depending on the  position he takes.  Mr. Marsden, your chief's name is Xamlaxyeltxw?  Yes.  And you are the head chief of a house?  Yes.  And you are a member of the Ganeda or Frog Clan of  Kitwancool?  Yes.  And the name Xamlaxyeltxw is a Nax nok name which  means "going back and forth"?  Yes.  :  Is the name of the house the same as the name of the  chief?  Can you tell me, does your house -- can you tell me  what the name of your house is?  Ts'im an luu sgeex.  GOLDIE: Can we have the spelling of that?  42 THE COURT:  Not the same name as the chief?  43 MR. GRANT:  No, it's not the same name as the chief.  44 THE TRANSLATOR:  T-s',space i-m, space, a-n, space, 1-u-u,  45 space, s-g-e-e-x.  4 6 THE COURT:  Thank you.  4 7 MR. GRANT:  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  Q  26  A  27  Q  28  A  29  Q  30  31  A  32  Q  33  34  A  35 THE  COURT  36  37 MR.  GRANT  38  Q  39  40  A  41 MR.  GOLDI 5873  S. Marsden (For Plaintiffs)  In Chief by Mr. Grant  1 Q   And what does that name mean?  2 A  When we as being -- when the water runs through the  3 house in the springtime, the house, as the water runs  4 through the house and the people would be wading in  5 the water.  6 Q   And that name comes from the adaawk of your house?  7 A   Yes.  8 Q   Your mother was Maggie Good and was a chief in the  9 House of Xamlaxyeltxw?  10 A   Yes.  11 Q   And can you tell us her name?  Her Gitksan name?  12 A   Liseexw.  13 MR. GRANT:  Can you give a spelling for that, please?  14 THE TRANSLATOR: L-I-S-E-E-X-W.  15 MR. GRANT:  16 Q   And you were born on November 20th, 1908?  17 A   Yes.  18 Q   And you were raised as a young boy by your grandfather  19 and your grandmother?  20 A   Yes.  21 Q   And you grew up at their place which was located at  22 Kitwancool, which is often also known as Kitwingax  23 Lake?  I say that because it's referred to on maps as  24 Kitwingax.  25 MR. GOLDIE:  I thought there was a particular village site known  26 only as Kitwancool?  27 MR. GRANT:  You may not have heard me, I said Kitwancool Lake.  28 MR. GOLDIE:  I didn't hear you say lake.  29 THE COURT:  Is it Kitwancool Lake or Kitwingax Lake?  30 MR. GRANT:  This witness will refer to it as Kitwancool Lake, my  31 lord, but if you look on some maps, it's referred to  32 as Kitwingax Lake.  That's the only reason --  33 A   Yes.  34 Q   When did you take the name Xamlaxyeltxw?  35 A   I think it was in 1955.  36 Q   And who held the name before you?  37 A  My uncle Albert Douse.  38 MR. GRANT:  That's D-O-U-S-E, my lord.  39 Q   And before your uncle, Albert Douse, did your  4 0 grandmother hold that name?  41 A   Yes.  42 Q   Was there a feast held when, at the time you took the  4 3 name Xamlaxyeltxw?  44 A   Yes, there was a feast.  45 Q   And what type of feast was it?  46 A   It was a funeral feast.  47 Q   And that was the funeral feast of Albert Douse? 5874  1  A  2  Q  3  4  5  A  6  Q  7  8  9  10  A  11  12  13  Q  14  15  16  A  17  18  19  Q  20  21  22  A  23  24  Q  25  A  26  27  Q  28  A  29  Q  30  A  31  32  Q  33  A  34  35  Q  36  A  37  Q  38  A  39  Q  40  41  A  42  Q  43  A  44  45  Q  46  A  47  Q  S. Marsden (For Plaintiffs)  In Chief by Mr. Grant  Yes.  And is that in accordance with the Gitksan law that a  name is passed, a head chief's name is passed at a  funeral feast?  Yes.  And does this law -- when I ask you about the laws,  can you explain whether the laws that you were taught  apply to just the people of Kitwancool or are they the  same as the laws of the other Gitksan?  Whenever a chief passes on, they invite all the  Gitksan villages.  It's not that one village that has  lost a chief that is invited.  At the time that you took the name Xamlaxyeltxw, were  there chiefs -- what villages did that the chiefs that  came from, what villages were they from?  Most of the chiefs were from Gitwingax, Gitsegukla and  there were a few chiefs that were from Gitan'maaxs and  Kispiox.  Do -- can you tell the court why you, as a Kitwancool  chief, are giving evidence in this case for the other  Gitksan chiefs?  I was chosen by some of the chiefs from Gitsegukla and  from Gitwingax.  And why were you chosen, why were you chosen?  I have helped them out so many times and then they  knew that I know the Gitksan laws.  Did you ever attend school?  No.  Can you -- did you ever fish at the coast?  Yes, I fished at the coast.  I was 14 years old when I  started fishing down the coast.  When did you stop fishing at the coast?  I quit going down there in 1976.  I was sick and this  is the reason why I quit.  Did you ever work for a company known as Hanson's?  Yes, I worked.  What did you do for them?  We were making cedar poles.  And were you involved in cutting cedar poles?  I mean,  you, yourself?  Yes.  And where did you cut those cedar poles?  On the west side of the lake.  This is our own  territory.  And that's the west side of Kitwancool Lake?  Yes, it is.  And when you say "this is our own territory", do you 5875  Marsden (For Plaintiffs)  In Chief by Mr. Grant  1  2  A  3  Q  4  5  A  6  Q  7  8  A  9  Q  10  11  A  12  Q  13  14  15  A  16  Q  17  18  19  A  20  21  Q  22  23  A  24  Q  25  26  A  27  Q  28  29  A  30  Q  31  32  MR.  GOLDI  33  34  THE  COURT  35  36  MR.  GRANT  37  THE  COURT  38  39  MR.  GRANT  40  THE  COURT  41  MR.  GRANT  42  Q  43  44  A  45  Q  46  47  A  mean this is Xamlaxyeltxw's territory?  Yes.  Now, when was that that you were involved in cutting  poles for Hanson's, approximately?  1951 to 1961.  When you were fishing at the coast did you live at the  coast in the summer months?  Yes.  And did you also, for a three year period, drive a bus  in Prince Rupert?  Yes.  Other than living at the coast in the summer months  and driving a bus in Prince Rupert for three years,  where did you live in those times?  We returned back to Kitwancool.  Now, you said that you were raised at Kitwancool Lake,  when did you move away from Kitwancool Lake and where  did you move to?  I don't remember the year when we moved back, when we  moved to the village.  And when you say the village, was that the Village of  Kitwancool?  Yes.  And is that village a few miles south of Kitwancool  Lake?  It's six miles from the lake.  When you were living at Kitwancool Lake, did you ever  travel anywhere with your grandfather?  I always go with him to the hunting grounds.  And whose hunting grounds are those and approximately  where are they located?  :  Well, my lord, if they are not within the claims  area, is it necessary to elicit this information?  Well, I gather we are just sort of getting a picture  of the witness.  I will allow the question.  Thank you.  I am not sure it's going to be of any evidentiary  value.  Go ahead.  I am just concerned --  Go ahead.  Thank you, my lord.  But it's for the purposes of --  Where did you go, when you say you go to the hunting  ground, which hunting ground is it and where is it?  Our own territories.  About how far away from Kitwancool Lake is your  territories?  It's about 55 miles from the lake. 5876  1  Q  2  3  A  4  Q  5  6  7  A  8  9  10  Q  11  12  A  13  14  15  Q  16  17  A  18  Q  19  A  20  21  22  23  Q  24  25  26  A  27  28  Q  29  30  A  31  32  33  Q  34  A  35 MR. (  GRA1  36 THE '  TRA1  37 MR. (  GRA1  38  Q  39  40  A  41  Q  42  A  43  Q  44  A  45  Q  46  47  A  S. Marsden (For Plaintiffs)  In Chief by Mr. Grant  Okay.  Just want to be clear, is it 55 miles from the  lake or is it at Mile 55 on the highway?  The road miles is 70.  And when you were young and travelling there, how did  you travel out to the territory and who did you go  with?  I travel with my grandfather and what we usually use  is we usually use the horses to get the supplies up  there.  Okay.  And did you -- and what time of year would you  go out and how long would you stay there?  We usually go there at the end of October, the  beginning of November and then we stay out there 'til  May.  Did you continue to do this after you moved into the  village, where the village of Kitwancool is located?  Yes, we keep doing this.  And when were you last out there?  I don't exactly remember what the year was when we  quit going in but the reason why we quit going there  was because the fur market was down and this is why we  never went up there.  Did you or your house members return there after a  while, after the fur market was down did you start  going back up again?  We resumed going there about three years ago and we  have been there since.  Now, while you were growing up -- I am sorry, can you  tell me who your father was?  My mother and father separated, my real father.  And  she stayed with Fred Good and Fred Good was the one  that brought me up and my father was Douglas Marsden.  And did Douglas Marsden hold a chief's name?  Yes, Malii.  : Can we get a number for that?  LATOR: Number 47 on the plaintiffs' list.  And is that the name, is that is a Wolf Chief of  Kitwancool?  Yes.  And you have been -- your wife is Kathleen Marsden?  Yes.  And she is from the house of Guxsan?  Yes.  And that is a Fireweed or Gisk'aast chief of  Gitsegukla?  Yes. 5877  1  Q  2  3  A  4  Q  5  A  6  Q  7  8  A  9  Q  10  A  11  Q  12  13  14  A  15  Q  16  A  17  Q  18  19  A  20  Q  21  22  A  23  Q  24  25  A  26  Q  27  28  A  29  Q  30  31  A  32  Q  33  34  A  35  Q  36  37  A  38  Q  39  40  A  41  Q  42  43  A  44  Q  45  46  47  S. Marsden (For Plaintiffs)  In Chief by Mr. Grant  And she is represented by Guxsan, who is a plaintiff  in this action?  Yes.  You have been with Kathleen since 1938?  Yes.  And you have ten -- you have had ten children, three  of whom have died?  Yes.  And you have approximately 30 grandchildren at --  Yes.  And your children are Donna -- I am sorry, Rena  Williams, who has nine children and she lives in  Prince Rupert?  Yes.  And she is the oldest?  Yes.  You have Donna, who has five children and lives in  Port Alberni?  Yes.  You had a Thelma, who is now deceased, but she had  four children?  Yes.  You have a daughter, Pansy, who lives in Vancouver or  in West Vancouver and has two children?  Yes.  You have a son Solomon, who of lives in Kitwancool and  has four children?  Yes.  You have a son Barry, who lives in Prince Rupert and  has two children?  Yes.  And you have a son Larry, who lives in Gitsegukla and  has three children?  Yes.  And a daughter Rosy, your youngest daughter, and she  lives in Prince Rupert and has one child?  Yes.  And off daughter Lorretta, who was adopted by Shirley  Gray?  Yes.  And Shirley Gray is in the same house as your wife  Kathleen?  Yes.  And when I said -- when you say Lorretta is adopted by  Shirley Gray, can you explain to the court, was she  adopted under the Gitksan law or under the white law,  that is through some court application to a court like 587?  1  2  A  3  4  5  Q  6  A  7  Q  8  9  A  10  11  12  13  Q  14  15  A  16  Q  17  18  A  19  Q  20  21  A  22  Q  23  24  25  26  A  27  28  29  30  Q  31  A  32  Q  33  34  35  36  37  38  39  A  40  41  42  Q  43  44  45  46  47  A  S. Marsden (For Plaintiffs)  In Chief by Mr. Grant  this?  I don't know the white, really, know how the white  man's law goes, but we used our own law for this  adoption.  And was that adoption announced in a Feast Hall?  Yes.  Can you explain to the court why your daughter  Lorretta was adopted by Shirley under the Gitksan law?  She was related to, Shirley was related to Kathleen  and they were from the same house and they were just  like sisters and Shirley did not have any children and  she asked Kathleen if she would adopt Lorretta.  And what house do your children -- what house does  Lorretta belong to then?  Whose house?  Guxsan's house.  What about your other children, those we have just  described, what house do they belong to?  They are all in the house of Guxsan.  And what about the children of your daughters, what  house are they in?  They are all in the house of Guxsan.  And can you explain the law that makes all of those  people you have just described be in the house of  Guxsan?  Can you tell the court what the Gitksan law  is?  This is the way it is, because Kathleen belongs in the  House of Guxsan and this is the reason her children  belong in to the House of Guxsan and her daughters'  children belong in the House of Guxsan.  And is that law the same for all of the Gitksan?  Yes.  Now, I have referred to some of your children such as  Donna, who lives in Port Alberni, and Pansy, who lives  in Vancouver, and Rosy who lives in Prince Rupert, who  live outside of the Gitksan territory that is claimed  in this court action.  Do -- under the Gitksan law, do  they still have rights as the members of the House of  Guxsan, even though they live outside the territory?  They will never lose their rights in that house, even  if they live far away from home, they will always be  members of a house.  Do your children maintain any connection -- I am  sorry, those of your children who live away, such as  Donna, Pansy and Rosy, for example, do they maintain  any connection to Guxsan's house through their  conduct?  Whenever Guxsan has a big feast, they always try to 5879  S. Marsden (For Plaintiffs)  In Chief by Mr. Grant  1 make sure to be home and help out.  2 THE COURT:  Should we take the afternoon adjournment?  3 MR. GRANT:  Yes.  Before we do, I mentioned at the beginning, I  4 wanted to advise the court, Mr. Marsden, he is on  5 medication and he -- sometimes he gets tired but I  6 have just advised him to advise the interpreter if he  7 is at any time he gets tired and we will indulge --  8 THE COURT:  All right.  Thank you.  9  10  11  12 I hereby certify the foregoing to be  13 a true and accurate transcipt of the  14 proceedings herein to the best of my  15 skill and ability.  16  17  18  19  20  21 Wilf Roy  22 Official Reporter  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  4 7        (PROCEEDINGS RECONVENED AT 3:20) 5880  Proceedings  In Chief by Mr. Grant  THE COURT  1  2 THE  3 MR.  4  5  6  7  8  9  10  11  12  13  14  15  16  17 MR.  18  19 THE  2 0 MR.  21  22  23 THE  2 4 MR.  25  26  2 7 MR.  2 8 MR.  2 9 MR.  3 0 MR.  31 THE  32 MR.  33  34  35  36  37  38  39  40  41  42  43  44  45  4 6 THE  47  REGISTRAR: Order in court.  Ready to proceed, My Lord.  GOLDIE:  My Lord, I understand from Mr. Roy that the  practise as amongst the reporters may not be entirely  consistent, but occasionally a witness whose evidence  is being translated will volunteer an answer in  English and I would ask that that be marked by the  reporter, "the witness", rather than just an "A" for  the translation.  Sometimes it's done that way and  sometimes it isn't, but I'd prefer to have it in a  consistent basis and to indicate where the evidence is  given by the witness in English.  Is that convenient madam reporter?  All right.  And  if the witness volunteers an answer in English and the  interpreter then repeats it or changes it I suppose  they should both be --  GOLDIE:  Well, in that case it would be, to use one example,  Mr. Marsden is obviously familiar with dates.  COURT:  Yes.  Well, they may be the same in both languages.  GOLDIE:  He gave 1955 and the translator very correctly gave  it as 1955 so that would be "Witness: 1955; Answer or  A  1955".  I would think so.  Well, the only -- I don't know if Mr. Goldie  remembers this, I'm sure he does, way back on the  first day of commission we actually lost a reporter.  Yes.  And hasn't been seen since.  No, that reporter is alive and well and in Smithers.  She wasn't for a long time after that.  That's right. She disappeared for a long time after.  I can understand that too.  But one of the problems was in those early stages a  witness was starting to answer sometimes in English  and sometimes in Gitksan and some of the reporters,  madam reporter that is here obviously isn't having  difficulty, but some of the reporters have indicated  to me they have a hard time when if a witness such as  this witness is speaking, they don't know if he's  saying something in English or not.  And I've -- it's  hard to do a mixed translation is what I'm saying and  if he's in the middle of a sentence and says the word  "1955", I presume then it would have to be a  "...1955..."  because there's one word in the middle  of a long answer in Gitksan that's in English.  I'm  not sure if that's what my friend is seeking.  Well, we expect too much from our court reporters,  but I think what we're asking them to do is to record  COURT  GRANT  GOLDIE  GRANT:  GOLDIE  GRANT  COURT  GRANT  COURT: S. Marsden (for Plaintiffs)  In chief by Mr. Grant  1 everything that's said by either the witness or the  2 translator.  3 MR. GRANT:  In English.  4 THE COURT: Everything that's said in English by the questioner  5 and by both the witness and the interpreter.  6 MR. MACAULAY: However, my friend Mr. Grant I think has a point.  7 Obviously -- well, I assume that there is no Gitksan  8 word for 1951 and a witness like Mr. Marsden who's  9 lived the life he has which brings him around the  10 province uses English words where there are no Gitksan  11 words, I don't know how the reporter could cope with  12 reporting them separately.  13 THE COURT:  Well, I'm not going to worry about it gentlemen.  14 I've asked madam reporter and she says that where the  15 words come from the witness she can indicate that.  16 MR. GOLDIE:  It's been done.  It was just that I wanted the  17 practise to be consistent.  18 THE COURT:  Yes.  Well, madam reporter will do her best to  19 record what is said in English by the witness or the  20 translator.  All right.  Thank you.  Mr. Grant?  21  22 EXAMINATION IN CHIEF CONT. BY MR. GRANT:  23 Q   Do your children who are in Guxsan's house have names  24 in that house?  25 A   Yes, they use these names.  26 Q   And do your daughter's children, that is, the children  27 of all of your daughters who you've indicated are in  28 Guxsan's house, do all of your grandchildren who are  29 the children of your daughters have names in Guxsan's  30 house?  31 A   Yes, they all have names and this is called warn  32 ts'uuxws.  33 MR. GRANT:   Do you have a spelling for that Miss Stevens?  34 THE TRANSLATOR: Warn ts'uuxws, w-a-m, space, t-s-'-u-u-x-w-s.  35 MR. GRANT:  36 Q   And your son Solomon you've indicated has four  37 children and his wife was Debbie Marsden; is that  38 correct?  39 A   Yes.  40 Q   And whose house is Debbie Marsden in and whose house  41 are their children in?  42 A   The house of Xamlaxyeltxw, my house.  All the  43 children, her children, belong in my house.  44 Q   You've already advised the court that your house has a  45 name that is different than the name of the head chief  46 and I think that you've said that was Ts'im an luu  47 sgeexs and you described it as meaning the waters Marsden (for Plaintiffs)  In chief by Mr. Grant  1  2  3  4  5  6  7  8  9 MR.  A  10  MR.  GRANT  11  Q  12  A  13  Q  14  15  A  16  17  Q  18  A  19  MR.  GRANT  20  21  THE  COURT  22  MR.  GRANT  23  24  MR.  GOLDI  25  MR.  GRANT  26  27  28  THE  COURT  29  MR.  GRANT  30  THE  COURT  31  MR.  GRANT  32  THE  COURT  33  MR.  GRANT  34  THE  COURT  35  36  MR.  GRANT  37  THE  COURT  38  MR.  GRANT  39  THE  COURT  40  MR.  GRANT  41  42  43  44  THE  COURT  45  MR.  MACAU  46  47  going through the house as I understand.  When was  the -- where does that name come from?  This is the way it is.  Ts'im an luu sgeexs, meaning  they are -- "sgeexs" means wade, and when people go in  there they are wading in the water.  Q   Where was your house?  What village was your house in  when that name was given to your house?  A  At Gitangasx.  GOLDIE:  Gitanmaax?  Gitangasx?  Gitangasx.  And is that the village -- well, where is that village  located?  At the head waters, near the head waters of the  Skeena.  And was that an ancient village?  Yes, it was in the ancient times.  My Lord, there was evidence of this village from  one of the first witnesses, I believe, Mrs. McKenzie.  Yes.  Well, is that right though?  She gave evidence of an ancient adaawk at a village  and I'm going to return to that with this witness.  :  I thought that was Kuldo.  She -- yes, she was at Kuldo, but before Kuldo her  house migrated from Gitangasx and there was a war with  Suu wii gas that happened at Kisgagas.  Well, isn't that the village of the wild rice?  That's correct.  Yes.  But isn't that down near the junction of the --  Skeena and the Bulkley.  No, Skeena and -- we had it last week.  Babine?  Yes, which is nowhere near the head waters of the  Skeena.  The — well, I'll —  If we're talking about the same thing.  I'll refer back to that.  All right.  Unfortunately you have more consistency with being  here last week than I did and I will have to just  check that, My Lord.  That was in the evidence of  James Morrison you're referring to?  Yes.  AY:  There's a village with a name something like that  that the early explorers -- I mean the early 19th  century explorers refer to.  It's not shown on that Marsden (for Plaintiffs)  In chief by Mr. Grant  1 map.  2 THE COURT:  It's not on this map?  Well, it was on the maps that  3 Mr. Morrison had.  4 MR. MACAULAY:  No. It's not Kisgagas I'm referring to, it was  5 another one.  6 THE COURT:  We may not be talking about the same thing, but I  7 asked a question last week if that was the village of  8 wild rice mentioned by Mrs. McKenzie and I was given  an affirmative answer.  That answer may be wrong.  It  can be clarified I'm sure.  The case doesn't really  turn on that.  GRANT:  I'll check the transcript and check with Mr. Rush.  GOLDIE:  There's a reference in case Your Lordship wishes to  make a note of it, the village of Gitangasx,  G-i-t-a-n-g-a-s-x.  COURT:  Yes.  GOLDIE:  And Mrs. McKenzie spoke of that in Volume 3, page  184, and she said it was located down in the Skeena  River close to Gitanmaax.  COURT:  That's something different again.  GOLDIE:  That's something different again, yes.  COURT:  Perhaps we should get a spelling for the village the  witness has just mentioned?  GOLDIE:  Yes.  GRANT:  Can you give the name?  Can you just pronounce that  name again of the village where your house was  located?  WITNESS: Gitangasx.  Gitangasx.  GRANT:   Okay.  And madam -- Miss Stevens, could you just  give a spelling?  TRANSLATOR: It's 325 on the word list.  GRANT:   I'm going to have to go back through the  transcript.  9  10  11  12 MR.  13 MR.  14  15  16 THE  17 MR.  18  19  2 0 THE  21 MR.  22 THE  23  2 4 MR.  2 5 MR.  26  27  2 8 THE  2 9 MR.  30  31 THE  32 MR.  33  34 THE  35 MR.  36 THE  37 MR.  3 8 MR.  3 9 MR.  40  41 MR.  42 MR.  4 3 MR.  44 THE  4 5 MR.  46  47  COURT:  Just a moment.  Just a moment.  GOLDIE:  That's the one that Mrs. McKenzie spoke of.  COURT: Yes.  Thank you.  GOLDIE:  Well, I —  GRANT:  I think there was a correction.  GOLDIE:  I may have misled Your Lordship.  Mrs. McKenzie may  have been stating that T'am lax amit or —  GRANT:  T'am lax amit.  GOLDIE:  T'am lax amit was located down in the Skeena River.  GRANT:  Yes.  COURT:  Well, yes, that's south of —  GRANT:  She was talking about Gitangasx north of Kuldo,  that's why I was quite surprised.  Anyway, I'll just  proceed with this, if we can.  I should never have 5884  Marsden (for Plaintiffs)  In chief by Mr. Grant  1  2 THE  3 MR.  4  5  6  7  8  9  10  11  12  13  14 MR.  15 THE  16 MR.  17  18 THE  19 MR.  2 0 THE  21 MR.  22  23 THE  24  25  2 6 MR.  27 THE  28  2 9 MR.  30  31  32  33  34  35  3 6 MR.  37 THE  3 8 MR.  39 THE  4 0 MR.  41 THE  42 MR.  43  44 THE  45 THE  4 6 MR.  47 THE  COURT  GRANT  Q  A  Q  A  Q  A  Q  A  GRANT  COURT  GRANT  COURT  GRANT  COURT  GRANT  COURT  GRANT  COURT  GRANT  Q  made the aside, My Lord.  :  Are there any wild geese in this part of the room?  Have you had a long house built at Kitwancool  recently?  Yes.  And did you have a feast at the time that you opened  that long house?  Yes.  And did you give that long house a name at that feast?  Yes.  What name did you give it?  Ts'im an luu sgeexs.  Aside from yourself --  I'm sorry?  Oh, that is the name, My Lord, that is the name of  his house.  All right.  Thank you.  And I shouldn't have --  Yes, all right.  Thank you.  -- made the assumption, but it -- I understood that  as pronunciation that would appear on the record.  Well, you have to remember, Mr. Grant, that I  haven't enough confidence in my ability to recognize  these names.  No, I'm sorry.  I can't safely rely on my guess that I have the  right word or not.  That is the same name as you've given -- you've  described that your house is known as; is that right?  A   Yes.  Q   Aside from yourself, is there -- are there other  chiefs in your house, and who are they if there are?  A   Sindihl was the first chief in our house.  Sindihl.  GRANT:  Can I have the spelling for that?  TRANSLATOR: It's 1172 on the word list.  GRANT:  Is that -- is that the most updated one?  TRANSLATOR: Yes.  GRANT:  And does the court have a copy of that?  TRANSLATOR: I'm not sure.  GRANT:  Just give a spelling for that.  I'm not sure if you  have copies of them yet.  TRANSLATOR: Sindihl is S-i-n, space —  COURT:  Just a moment.  1117?  GRANT:  72.  TRANSLATOR: 72. S. Marsden (for Plaintiffs)  In chief by Mr. Grant  1 THE COURT:  72, thank you.   Yes.  What is it again?  2 S-i-n-d-i-h-1?  3 THE TRANSLATOR: Yes.  4 MR. GRANT:  5 Q   And who holds that name today, the same Sindihl?  6 THE WITNESS: Robert Good.  7 A   Robert Good.  8 Q   And can you explain the relationship in your house  9 between the name Sindihl and Xamlaxyeltxw, that is,  10 their relative power or authority in your house?  11 A   Sindihl was the first -- was the head chief of our  12 house and Xamlaxyeltxw was the nax nok name of that  13 house.  14 Q   Uh-huh?  15 A  And later on they used Xamlaxyeltxw as the head  16 chief's name.  17 Q   And what about the name Sindihl today, what power or  18 authority does it have today?  19 A  We stand the same, Sindihl and I, we both have equal  20 powers.  If I'm not around to make a decision or to  21 speak, then Sindihl has the power to do this.  22 Q   Can you describe this relationship between Sindihl and  23 Xamlaxyeltxw by explaining how the two of you sit in  24 the feast hall when you're guests at the feast of  25 another clan?  26 A   Because we have the same amount of powers, we sit side  27 by side in the feast house.  28 Q   Evidence has been given in this court case about a  29 concept known as Sto'o wilp.  Do you have a Sto'o wilp  30 in your house?  31 A   Yes, we have Sto'o wilp.  Hlamii is the name of our  32 Sto'o wilp.  33 MR. GRANT:  Do you have a number reference for that, that is,  34 for the name?  My Lord, do you have Sto'o wilp?  35 THE COURT:  I have Sto'o wilp, yes.  36 THE TRANSLATOR: Hlamii isn't on the word list.  Hlamii,  37 H-1-a-m-i-i.  3 8 MR. GRANT:  39 Q   And who's the holder of that name today in your house?  40 THE WITNESS:   It's Jonathon Derrick.  41 A   Jonathon Derrick.  42 THE WITNESS: Oh, no.  Clarence Derrick.  No, it's Clarence Derrick.  :  Clarence?  Yes, Clarence.  Besides yourself, Sindihl and Hlamii, are there  43  A  44  THE COURT  45  MR. GRANT  46  Q  47 Marsden (for Plaintiffs)  In chief by Mr. Grant  1  2  3  A  4  MR.  GRANT  5  THE  TRANS  6  MR.  GRANT  7  Q  8  A  9  10  Q  11  A  12  Q  13  A  14  Q  15  A  16  THE  COURT  17  A  18  THE  COURT  19  MR.  GRANT  20  THE  COURT  21  MR.  GRANT  22  Q  23  24  25  26  A  27  28  29  30  Q  31  A  32  33  34  THE  COURT  35  36  MR.  GRANT  37  THE  COURT  38  39  MR.  GRANT  40  THE  COURT  41  MR.  GRANT  42  THE  COURT  43  MR.  GRANT  44  THE  COURT  45  MR.  GRANT  46  THE  COURT  47  MR.  GRANT  any other chiefs in your house and what names are  they?  Sin Gewin.  :  Can you give a spelling for that Madam Interpreter?  IATOR: Sin Gewin, did S-i-n, space, G-e-w-i-n.  And who holds that name today?  Ivan was the one that held this name and he recently  passed on, so Dennis Gogag has his name.  When you said "Ivan", are you referring to Ivan Good?  Yes.  And both Ivan Good and Robert Good are your brothers?  Yes.  And Fred Good was their father?  Yes.  I didn't get who has the name now?  I'm sorry,  Dennis Gogag.  And that's  G-o-g-a-g.  Thank you.  spelled?  Can you explain to the court the difference between  your relation with Sindihl and your Sto'o wilp?  What's the difference between Sto'o wilp and how you  and Sindihl are related in your house?  There is no difference except that Hlamii has no power  to pass the name on to -- or the -- has no power to  pass the name or the territories or the decisions of  the house on to anyone.  Does Sindihl have a power to pass his name?  Sindihl will choose his own successor and I will do  the same before I die.  I will choose my own  successor.  Mr. Grant, I'm sorry, but the name you've been  using, it sounded to me like Sindihl.  Sindihl.  That was spelled for me S-i-n G-e-w-i-n.  talking about the same thing?  No.  What —  S-i-n-d-i-h-1.  Oh, I'm sorry,  Yes.  All right.  Just  I'm not sure --  Yes, that makes sense.  Yes.  Thank you.  I think the other name was a place name.  Are we  yes,  a minute  I have it earlier. Marsden (for Plaintiffs)  In chief by Mr. Grant  1  THE  COURT:  2  MR.  GRANT:  3  THE  COURT:  4  MR.  GRANT:  5  Q  6  A  7  8  9  Q  10  11  A  12  Q  13  14  15  16  17  18  A  19  Q  20  A  21  Q  22  A  23  Q  24  A  25  MR.  GRANT:  26  THE  COURT:  27  MR.  GRANT:  28  THE  COURT:  29  30  MR.  GRANT:  31  32  THE  COURT:  33  MR.  GOLDIE  34  35  THE  COURT:  36  37  MR.  GRANT:  38  39  MR.  GOLDIE  40  THE  COURT:  41  MR.  GRANT:  42  THE  COURT:  43  MR.  GRANT:  44  45  46  MR.  MACAUL  47  No, that's the Sto'o wilp.  Sto'o wilp.  Yes.  All right.  Thank you.  Do you know -- can you explain to me what Dax gyet is?  What we call Dax gyet is the person that will pass the  name and the territories on from generation to  generation.  And who holds Dax gyet in your power -- in your house,  I'm sorry?  Me and Sindihl.  I'm just going to briefly refer to the pleadings, My  Lord, paragraph 51.  I'm going to just ask you briefly  about some chief's names and if you know who those  people are and what clans they are in.  And for the  record, I'm going down in order of the names in  paragraph 51.  What clan is Wixa a member of?  The wolf.  And is he a chief of Kitwancool?  Yes.  What clan is Malii a chief of?  The wolf.  And Haits'imsxw?  Wolf.  Wilitsxw?  I'm sorry, Mr. Grant --  I'm sorry, My Lord.  -- it isn't possible to write these things as fast  as you can say them.  I'm trying to make up for some of the time this  morning, My Lord, but I'm sorry.  I'm sorry, the third one?  :  I'll do better for you.  I'll concede these are all  Kitwancool chiefs.  That's not the question though, Mr. Goldie, it's  which clan they belong to.  Okay.  Well, if my friend doesn't object to me  leading --  :  I certainly don't.  I haven't got the third clan.  The third one Haits'imsxw is wolf.  Well, they're all wolf up to now.  They're all -- if Mr. Macaulay concedes they're  Kitwancool chiefs, I don't have to ask that question.  He's remained silent at the moment.  AY: I'm glad to agree with my friend these are  Kitwancool chiefs.  I'm sure we can rely on his S. Marsden (for Plaintiffs)  In chief by Mr. Grant  1 identification of their clans.  2 THE COURT:  Yes.  Thank you.  3 MR. GRANT:  And I'm now referring to the next three on the top  4 of page 8 of the pleadings, My Lord.  5 THE COURT:  Next three.  Yes.  6 MR. GRANT:  7 Q   Are Wilitsxw, Gwashlam, and Niislaganoos all chiefs of  8 the wolf clan of Kitwancool?  9 A   There is one missing on -- one missing is Txaax wok.  10 Q   I'll ask you about Txaax wok in a moment, but are  11 Wilitsxw, Gwashlam, and Niislaganoos all Lax Gibuu  12 chiefs?  13 A   Yes.  14 Q   And is Txaax wok a Lax Gibuu chief?  15 A   Yes.  16 Q   And is Txaax wok in the same house as Wilitsxw?  17 A   Yes.  18 Q   Okay.  Now, your name is mentioned here and then are  19 Wutaxhayetsxw, Gunuu, Tooxensxw, Luuxoon and Yaxyak  20 all frog chiefs?  21 A   Yes.  There is one missing which is Gaakhl.  22 MR. GRANT:  Gaakhl.  Can you just give a spelling for that?  23 THE TRANSLATOR: Gaakhl, G-a-a-k-h-1.  2 4 MR. GRANT:  25 Q   And he is a frog chief?  26 A   Yes.  27 Q   I'm sure you recall Txaax wok was a witness before you  28 and that was James Morrison, My Lord.  That was the  29 name that he added in the house of Wilitsxw.  It's not  30 on the list.  31 When you refer to Txaax wok, is that James  32 Morrison?  33 A   Yes, it is him.  34 MR. GRANT:   And just for the record, I said those names fast  35 and I'll provide a copy of the pleading to the  36 reporter, but they were in that order in paragraph 51,  37 those frog names I gave.  38 THE COURT:  Well, I don't — I just want to check and see if  39 that's the name Mr. Morrison gave.  40 MR. GRANT:  I think that all counsel, even those who were  41 present, agree that was the name given.  42 THE COURT:  Well, no doubt it was.  43 MR. GOLDIE:  Yes, especially those who were present.  44 MR. GRANT:  Who were present I said.  Maybe very few of us.  45 THE COURT:  What name are you saying now, Mr. Grant?  Are you  46 adding another name again to this list?  I thought you  47 were telling me that this last name G-a-a-k-h-1 was Marsden (for Plaintiffs)  In chief by Mr. Grant  1  2  MR.  GRANT  3  THE  COURT  4  MR.  GRANT  5  THE  COURT  6  MR.  GRANT  7  8  9  10  11  12  13  THE  COURT  14  15  MR.  GRANT  16  17  THE  COURT  18  MR.  GRANT  19  THE  COURT  20  MR.  GRANT  21  THE  COURT  22  MR.  GRANT  23  24  25  26  27  THE  COURT  28  MR.  GRANT  29  30  THE  COURT  31  MR.  GRANT  32  33  THE  COURT  34  35  MR.  GRANT  36  THE  COURT  37  MR.  GRANT  38  39  THE  COURT  40  MR.  GRANT  41  Q  42  43  44  A  45  Q  46  A  47  Q  James Morrison.  Oh, no, I'm sorry.  I'm sure he didn't say that.  No.  All right.  He said -- after I gave the names Wilitsxw, Gwashlam  and Niislaganoos, he said and there was Txaax wok, and  I asked if that was a name in the house of Wilitsxw,  and that is the name that I was referring to was James  Morrison's. Then I listed the frogs and he said there  was another name which is Gaakhl and he said that's  another frog chief.  So this list in paragraph 51 is missing two names  then is it?  Well, no, Txaax wok is in Wilitsxw's house.  He  explained that, so --  He told me his house was T-s-i-n-d-a-a-k.  Who, Mr. Morrison?  Yes.  That was the name of his house?  Yes.  I believe later in the evidence, the evidence I've  reviewed, My Lord, and I think it may have even been  on cross-examination, was that he was in the same  house as Wilitsxw.  The very top name on page 8, John  Robinson.  Yes.  This witness has indicated that Txaax wok was in the  same house.  Well, all right, if you say so.  I think the witness said as well so -- which  corroborates something.  I'm just not sure Mr. Morrison ever said it, but he  may have.  Oh, I see.  He may have.  Go ahead.  I recall -- he did.  I'm advised by counsel who was  present.  :  All right.  Now, can you tell the court which houses of the --  which frog houses of the Kitwancool your house is  closely related to, which house or houses?  Wutaxhayetsxw.  And that's the name held presently by Barney Good?  Yes.  Any other houses that you're closely related to? 5890  1  A  2  Q  3  A  4  Q  5  A  6  Q  7  8  A  9  MR.  GRANT  10  THE  COURT  11  MR.  GRANT  12  Q  13  14  A  15  16  Q  17  18  A  19  20  21  S. Marsden (for Plaintiffs)  In chief by Mr. Grant  Gunuu's house.  And that's the name presently held by Godfrey Good?  Yes.  And any other houses?  Yes, this is.  Would you refer to those two houses as part of your  wil'nat'ahl?  Yes.  Do you know where Luuxoon originated from?  I'm sorry?  Luuxoon, which is also known as Guy Morgan on  paragraph 51?  It slipped my mind.  Luuxoon is the closest to our  house.  Can you explain why you say Luuxoon is the closest to  your house?  He was one of the chiefs in Xamlaxyeltxw's house.  Later on he left the house and he made his own house.  Xamlaxyeltxw and Luuxoon have the same crests even  today.  22 THE COURT:  I'm sorry, I haven't got who has the same crests as  23 Luuxoon.  24 MR. GRANT:  Xamlaxyeltxw, that's the witness' own name, My Lord.  25 THE COURT:  All right.  All right.  Is this convenient, Mr.  26 Grant?  27 MR. GRANT:  Yes, My Lord.  This is convenient.  28 THE COURT:  All right.  Okay.  We'll adjourn until ten o'clock  2 9 tomorrow morning.  Thank you.  30 THE REGISTRAR: Order in court.  Court will adjourn to ten a.m..  31  32 (PROCEEDINGS ADJOURNED TO 10:00 a.m. May 6, 1988)  33  34 I hereby certify the foregoing to  35 be a true and accurate transcript  36 of the proceedings herein to the  37 best of my skill and ability.  38  39  40 Tanita S. French  41 Official Reporter  42  43  44  45  46


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