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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1988-02-19] British Columbia. Supreme Court Feb 19, 1988

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 3782  1 FEBRUARY 19, 198 8  2 VANCOUVER, B.C.  3  4 THE REGISTRAR: In the Supreme Court of British Columbia, this  5 Friday, February 19th, 1988.  Calling Delgamuukw and  6 Her Majesty the Queen.  7 I caution you, Mr. Michell, you are still under  8 oath.  9 MR. RUSH: My Lord, just before my friend commences or  10 recommences his cross-examination, there was one minor  11 matter that I simply wanted to draw to your attention.  12 It concerned an objection or at least a comment that I  13 raised about the Interrogatories, and it had to do in  14 particular with -- in particular with the  15 Interrogatories 47, 48 and 49.  16 THE COURT:  Where were they, Mr. Rush?  17 MR. RUSH:  These were put to the witness yesterday, and --  18 THE COURT:  They are from —  19 MR. RUSH:  They were from a document that was -- document 257,  20 and there was some --  21 THE REGISTRAR:  Tab 1, My Lord.  22 MR. RUSH:  -- some question as to whether or not these had been  23 objected to, and whether or not Mr. Justice Locke had  24 ruled on them; and I simply want to advise Your  25 Lordship that in fact they had been objected to, that  26 Mr. Justice Locke did rule on them, and he said this  27 at page 9 of his judgment:  28  29 "Interrogatories 47 to 49 ask if any member  30 of the plaintiffs' house or predecessor made a  31 submission to royal commission on indian  32 affairs, and if so, what was the nature of the  33 evidence.  This is relevant to the questions  34 of acquiescence, and should be answered within  35 the limits of the statements of law.  Perhaps  36 the defendant could speed the process by  37 supplying a list."  38  39 In fact the defendants did supply a list and on the  40 basis of that list further inquiries were made.  But  41 in reference to the statements of law, Mr. Justice  42 Locke had set out a number of propositions of law,  43 some of which were taken from a judgment of Your  44 Lordship on the Meares Island case, and one of those  45 statements, statement three, had to do with the  46 requirement to undertake investigations within the  47 living memory or the living memory history of the 3783  1 particular person.  And that was the context within  2 which these Interrogatories were ordered to be  3 answered.  4 THE COURT:  That is that they would be based upon inquiries.  5 MR. RUSH:  They were based upon inquiries, but inquiries, it was  6 thought, within the living memory of the witness.  7 I'll just cite what was said here by Your Lordship:  8  9 "While it seems to me the foregoing may state  10 the practise too narrowly ..."  11  12 And there you were referring to a decision of  13 Kennedy and Dodson cited to you.  14  15 "... I am satisfied Interrogatories must be  16 directed to questions of fact which the  17 deponent can verify from personal knowledge or  18 on reasonable inquiry."  19  20 THE COURT:  But the inquiry would, in this case, extend to  21 looking at the transcript of what is available, I  22 suppose.  23 MR. RUSH:  My point was that in fact it was upon inquiry or  24 research --  2 5 THE COURT: Yes.  26 MR. RUSH:  -- that the questions were required to be answered.  27 And it may have been -- it could have been answered by  28 not only inquiry of the transcript, but also inquiry  29 made by others on his behalf.  30 THE COURT:  Yes.  All right.  But these answers must have been  31 given after Mr. Justice Locke's decision.  32 MR. RUSH:  Yes, they were.  Then following that the answers were  33 given.  34 THE COURT:  And I take it then that the — your point is that I  35 should have in mind that these answers were given only  36 as a result of that direction and in that context.  37 MR. RUSH:  Yes, I think that there was a context for the  38 direction, and in fact it was upon reasonable inquiry,  39 and inquiry not only by Mr. Michell.  4 0 THE COURT:  Yes.  41 MR. GOLDIE:  While my friend is addressing Your Lordship,  42 perhaps he can advise us with respect to the inquiries  43 on the B.C. special documents.  44 MR. RUSH:  My Lord, I cannot advise with finality about this.  I  45 would like -- I'm awaiting the instructions of the  46 Band Council, which in my submission I -- as I said to  47 you yesterday, I had concern about the position of the 3784  1 Band Council.  I am awaiting what their view is of the  2 documents which may or may not be in their possession.  3 I hope to know that by the break.  4 THE COURT:  All right.  Thank you.  I want to make a note of  5 what you have just said, Mr. Rush.  This was yesterday  6 afternoon, was it?  7 MR. RUSH:  Yes.  And I think -- or it may be in the morning.  It  8 was very early in the cross-examination.  And it was  9 at the time that the grey excerpt from the evidence  10 before the Royal Commission --  11 THE COURT:  That was exhibit number?  12 THE REGISTRAR:  257.  13 THE COURT:  357?  14 THE REGISTRAR:  257, My Lord, Tab 1.  It was put in at 11:55.  15 THE COURT:  In the morning.  All right.  Oh, yes.  Thank you.  16 All right.  Thank you.  Mr. Goldie.  17 MR. GOLDIE:  My Lord, with respect to the B.C. special matter,  18 I'll await further advice from my friend, but I  19 anticipate asking Your Lordship to make a direction  20 under Rule 26(1), based on the fact that the Band  21 Council documents are under the control of the  22 plaintiffs.  But I'll leave that until --  23 MR. RUSH:  Well, I think that if there is going to be a request  24 for that, then, My Lord, I would ask that there be an  25 argument on that, and there hasn't been —  2 6 THE COURT:  Yes.  27 MR. GOLDIE:  I quite agree.  I am simply advising.  28 MR. RUSH:  Yes.  Thank you.  The matter was raised at the  29 beginning of the trial, and it was one of those issues  30 that was set aside, and it was a matter that we were  31 going to deal with by way of argument.  32 THE COURT:  Yes.  33 MR. RUSH:  And it never came to that.  And I simply --  34 THE COURT:  Maybe it never will.  35 MR. RUSH:  And maybe it won't, but I say that if it does, then I  36 think it's a matter for a fuller canvassing of the  37 issue, and to hear us fully on the question before  38 it's decided.  39 THE COURT:  All right.  40 MR. GOLDIE:  Well, that accords with the suggestion that I am  41 going to make in connection with some other matters,  42 but I have another preliminary point, and that is the  43 question of questionnaires underlying a document that  44 is known as a questionnaire, and I suppose I should  45 say replies to questionnaires.  During the  46 cross-examination of Mr. Alfred, and I am referring to  47 volume 50, page 3101, Mr. Plant put a document to Mr. 3785  1 Alfred, and he said at line 22:  2  3 "Q   My reading of this is it's a  4 questionnaire about Moricetown fishing.  Did  5 you ever answer any questionnaire about  6 Moricetown fishing?  7 A   I know that within the K'ayah Wig'et that  8 different clans have different fishing sites  9 that I know.  Is that -- is this paper  10 referring to that?  11 Q   In a way it does ..."  12  13 And then there was a further discussion, and then  14 Mr. Plant addressed Your Lordship and said this:  15  16 "My Lord, I am in a difficult position.  On  17 July 31st Your Lordship directed that cerain  18 documents be produced, including a  19 questionnaire that was referred to in the  20 plaintiff's document 3339.  We haven't had  21 production of any of those documents yet, and  22 I at that point, or because of that, that sort  23 of stops my questioning in this area.  I  24 should say, I believe a demand was -- another  25 demand was made by Miss Sigurdson on the 25th  26 of January for production of these documents,  27 and to my knowledge we haven't had a reply to  2 8 that demand.  I don't know if the documents  29 exist or not, but proceeding on the assumption  30 that they do, because the questionnaire is  31 attached to Mr. Jim's affidavit, my  32 cross-examination can't proceed beyond the  33 point that it has on this issue."  34  35 The document in question is a questionnaire, and the  36 underlying documents were the replies to the  37 questionnaire.  I am going to ask my friend if he can  38 speak to that matter at noon, when he tells us about  39 the B.C. special.  It is a matter that I would like to  40 address this witness on, but I -- when I looked into  41 the matter, I found that we had written on February  42 15th, January 25th, and I'm now asking my friend to  43 look into the matter at the same time as he does the  44 Band's minutes or resolution or documents relating  45 to —  46 THE COURT:  You are asking for the responses to the  47 questionnaire? 3786  D. Michell (for Plaintiffs)  Cross-exam by Mr. Goldie  1 MR. GOLDIE:  That's correct.  We call them the underlying  2 documents.  In particular, I want to know if there is  3 a response by Mr. Michell.  4 THE COURT:  Yes.  5 MR. GOLDIE:  Now, my third item on the laundry list is -- I  6 asked my friend to advise us if he's in a position to  7 provide us with genealogies and summaries for the two  8 witnesses that come after the next one, Art Mathews  9 and Dora Kenny.  We have one for Sara Layton.  From  10 the summary of evidence, we don't anticipate that she  11 will be very long.  And if my friend is going to  12 provide summaries, that's 7 days, of course, and the  13 genealogies are, of course, I think 14 days.  And I  14 ask my friend to be good enough -- if he would  15 consider that for the same time as he advises us with  16 respect to B.C. special.  17 Now, My Lord, I would like to continue my  18 cross-examination.  19 THE COURT:  Yes.  Thank you.  20 MR. GOLDIE:  21 Q   Mr. Michell, yesterday I was asking you about the Band  22 Council's regulation of -- regulation of activities on  23 the reserve, and I think you agreed with me that  24 sports fishermen require a permit and so on and so  25 forth.  My attention has been drawn to Exhibit 179.  I  26 wonder if that could be placed before the witness.  27 179, My Lord, is a letter of the Ministry of  28 Citizenship and Immigration, dated August 16th, 1962,  29 stating that:  30 "The attached by-law number 1 to provide for  31 the preservation, protection and management of  32 fish and game on the Moricetown Indian reserve  33 number 1 in the Province of British Columbia  34 is in force."  35 You were a councillor at the time that by-law was  36 enacted?  37 A   1986.  38 Q   1962.  39 A   1962.  40 Q   It's on page -- the last page I think you will find  41 your signature.  42 A   I was a councillor but not the chief.  43 Q   No.  I say you were a councillor, yes.  Mr. Michell,  44 my question is this:  Is there any other by-law which  45 regulates activities of, I'll call them outsiders,  46 non-band members on the reserve than this one?  47 A   I don't recall another one.  I believe this was the 3787  D. Michell (for Plaintiffs)  Cross-exam by Mr. Goldie  1 only one.  2 Q   And is this one still in effect?  3 A   Yes.  4 Q   And this one states in paragraph 2:  5  6 "No person other than a member of the band  7 shall fish from or be in possession of fishing  8 equipment on the reserve except under  9 authority of a fishing permit."  10  11 And the permit is the one that is granted by the  12 reserve on application; is that right?  13 A   Yes.  14 Q   And paragraph eight:  15  16 "No person other than a member of the band  17 shall no less or otherwise intentionally  18 disturb any game on the reserve except under  19 permission and writing of the council."  20  21 And you would agree with me that that is an example  22 of the council's exercise of its jurisdiction over the  23 activities of non-band members on the Moricetown  24 Indian reserve number 1?  25 A   Yes.  26 Q   Now, yesterday I was asking you questions about  27 evidence given at the Royal Commission, and I left it  2 8           when you advised me that you were unfamiliar with  29 Pinkut Lake, Augier Lake.  And I am informed that  30 those two lakes are identifiable on Trial Exhibit  31 number 5.  My Lord, I am going to direct the witness's  32 attention to two lakes by that name, which are just  33 south and slightly to the -- yes, Augier Lake and --  34 can you make that out, Mr. Michell, Augier Lake?  35 A   Uh-huh.  36 Q   And Pinkut Lake is right in there, I believe.  All  37 right.  Would you agree with me that if Pinkut Lake is  38 approximately in that area, that is to say south and a  39 little west of Babine Lake, that both fall outside the  40 claims area of the plaintiffs in this action?  41 I'm sorry, the reporter didn't hear you.  Could you  42 give your response to the reporter please.  43 A   Look at this sketch, it would be outside.  44 Q   Thank you.  The sketch being referred to as Trial  45 Exhibit number 5.  And from that it would appear that  46 if your Grandfather, Jimmy Michell's traditional  47 territory was in the area of Pinkut and Augier, it 376  D. Michell (for Plaintiffs)  Cross-exam by Mr. Goldie  1 would fall within the area claimed by the  2 Carrier-Sekani; is that so?  Or do you know if the  3 Carrier-Sekani claimed that area?  4 A   I don't know.  5 MR. GOLDIE:   All right.  My Lord, I am going to ask that the  6 the excerpts from the Royal Commission evidence under  7 tabs two and three be marked as exhibits.  And if my  8 friend wishes to object to that, I am going to  9 suggest, as I will with respect to some others, that  10 they be marked for identification and argument heard  11 at the conclusion of the lay witnesses called by the  12 plaintiffs.  We will then have accumulated a number of  13 documents marked for identification, and submissions  14 can be made in a comprehensive way to Your Lordship on  15 why they should be admitted.  16 MR. RUSH:  Well, I think it's a good suggestion to have anything  17 that's identified as an exhibit to be argued about,  18 but my concern isn't that, the question of  19 admissibility, although I think that I do have some  20 submissions to make to you about the effect of putting  21 in a document like this.  But my submission at this  22 point is that the whole document should go in, not  23 excerpts, and Your Lordship may remember that what we  24 were doing was piecing together pages of a  25 non-sequential nature.  And I don't object to this  2 6 document being advanced or admitted, subject to  27 certain arguments I want to make on its effect.  2 8 THE COURT:  Yes.  29 MR. RUSH:  But I think the whole thing should go in.  30 THE COURT:  This isn't the whole thing?  31 MR. RUSH:  No.  32 THE COURT:  What do you say about that, Mr. Goldie?  33 MR. GOLDIE:  Well, I have no objection to it, but the whole  34 thing, if my friend is referring to the evidence taken  35 before the Royal Commission, runs into thousands of  36 pages.  37 THE COURT:  Much of which won't relate to the —  38 MR. GOLDIE:  It has nothing to do with this case.  39 MR. RUSH:  With respect, the Royal Commission has much to do  40 with this case.  I'm surprised that my friend's  41 submission that it doesn't --  42 MR. GOLDIE:  I said much of the evidence before the Royal  43 Commission.  44 MR. RUSH:  Well —  45 THE COURT: All right.  46 MR. RUSH:  My position is, My Lord, the Royal Commission sat,  47 took evidence in respect of both Gitksan and 3789  Proceedings  1 Wet'suwet'en people.  It's contained within a number  2 of volumes.  It is long, it's true, and it's contained  3 within two, what were known as Indian Affairs  4 agencies, the Babine and Stuart agencies, and my  5 submission only is that my friends simply can't pick  6 and chose this, especially when it's broken up in the  7 way that these particular excerpts are broken up, and  8 that the whole thing should go in.  9 THE COURT:  What do you include within the whole thing, the  10 Babine and Stuart agencies?  11 MR. GOLDIE:  There is no problem with that.  12 THE COURT:  Well, then, shall we just reserve a number?  The  13 next number, Madam Registrar, would be?  14 THE REGISTRAR: Would be 263, My Lord.  15 MR. GOLDIE:  Well, just so that I'm clear on this, I would like  16 this -- the excerpts in this book marked, because they  17 were -- they were the excerpts that I put to the  18 witness, on the understanding that the whole of the  19 evidence taken in respect of the Babine and Stuart  20 agencies will be tendered as a separate exhibit.  That  21 would be my submission, My Lord.  22 THE COURT:  Do you have any difficulty with that, Mr. Rush?  The  23 greater includes the lesser, in any event.  24 MR. RUSH:  My concern here only is again that you don't have a  25 sequential flow of the volumes in relation to the  26 particular individuals that Mr. Goldie has identified  27 as being of his concern here.  28 THE COURT:  Yes.  Well, you needn't be concerned, if your  29 concern is that I might read this without the flavor  30 of the rest.  31 MR. RUSH:  I think you should have the whole thing and in  32 particular with reference here.  My suggestion would  33 be that if my friend wants these particular excerpts  34 placed before you as exhibits, that they be done so  35 under 263A, and that as a condition therefore that  36 under 263B the entire volumes of the Babine and Stuart  37 agencies be submitted as well.  38 MR. GOLDIE:  I have already stated that.  39 THE COURT:  All right.  Well then, Tab 2 of this book will be  40 263A, and Mr. Goldie will furnish —  41 MR. GOLDIE:  And Tab 3, My Lord, which is from the evidence in  42 the Babine agency, would be 263B.  43 THE COURT:  Well, I would rather, if you don't mind, Tab 3 will  44 be 264A, and then 263B will be the full transcript of  45 the first one.  46 MR. GOLDIE:  Yes, that's right.  47 THE COURT: All right.  So B will be the full transcript of the 3790  Proceedings  1 Stuart agency evidence, and 264A will be Tab 3, and  2 264B will be the full transcript of the Babine agency.  3 MR. RUSH:  No, My Lord, it's the other way around.  The Babine  4 agency would be in respect of 263 --  5 THE COURT: Babine is 263.  Is that Stewart, S-t-e-w?  6 MR. RUSH:  And 264 would be the Stewart agency, S-t-e-w.  7 MR. GOLDIE:  I think it's the lake.  I think it's S-t-u-a-r-t.  8 I didn't think they had my friend in mind.  9 THE REGISTRAR: May I just have this clear.  263A is the excerpt,  10 263B will be the full transcript of the Babine agency.  11 THE COURT:  Yes.  12 THE REGISTRAR:  264A is an excerpt and 264B will be the full  13 transcript of Stuart.  14 THE COURT:  Yes.  15 THE REGISTRAR:  Thank you.  16 (EXHIBIT 263A FOR IDENTIFICATION - EXCERPT OF  17 TRANSCRIPT - TAB 2)  18 (EXHIBIT 263B FOR IDENTIFICATION - FULL  19 TRANSCRIPT OF BABINE AGENCY - TAB 2)  20 (EXHIBIT 264A FOR IDENTIFICATION - EXCERPT OF  21 TRANSCRIPT OF BABINE AGENCY - TAB 3)  22 (EXHIBIT 264B FOR IDENTIFICATION - FULL  2 3                    TRANSCRIPT OF STUART AGENCY - TAB 3)  24  25 MR. GOLDIE:  Now, My Lord, to see if I can make a little further  26 progress, I am going to propose that documents that  27 were discussed yesterday with respect to the B.C.  28 special fund be marked for identification, and I have  29 a booklet of documents with tabs in it which we can --  30 MR. RUSH:  Just in respect -- my friend says documents in  31 respect of the B.C. special.  Only one was put to the  32 witness.  Is that -- there was only one document in  33 issue.  34 MR. GOLDIE:  No.  What I am proposing, My Lord, and I am trying  35 to shorten things up a bit, what I am proposing is  36 that the documents under Tab 1, which consist of,  37 firstly, a letter dated July 10th, 1987 from Mr.  38 Scouten, S-c-o-u-t-e-n, of the B.C. region of the  39 Department of Indian and Northern Affairs apparently  40 to district managers of that department, to which is  41 attached a series of pages detailing the distribution  42 of the B.C. special for the year 1987, '88.  43 THE COURT: I don't see that in Tab 1, Mr. Goldie.  The letter in  44 Tab 1 is signed by Mr. Walchi.  45 MR. GOLDIE:  That's the next document under that tab.  4 6 THE COURT:  Well, my Tab 1 doesn't have anything by Scouten did  47 you say?  I don't see it. 3791  Proceedings  1 MR. GOLDIE:  I think the Court copy has that.  Perhaps we could  2 switch.  3 THE COURT:  All you put to Mr. Michell yesterday was the letter  4 from Mr. Walchi?  5 MR. GOLDIE:  That is correct.  6 THE COURT:  Yes.  7 MR. GOLDIE:  So —  8 THE COURT:  So you're saying this document should be part of  9 your Tab 1?  10 MR. GOLDIE:  Yes.  And I am proposing that these two documents  11 be marked for identification.  And I will make my  12 submission, as I suggested a few minutes ago, with  13 respect to each document marked for identification in  14 the course of the lay witnesses evidence.  15 THE COURT:  Any problem with that, Mr. Rush?  16 MR. RUSH:  Well, I say only this, that the only document that  17 was put to Mr. Michell was the letter of March the  18 6th, 1980.  None of the other documents were put to  19 him.  And I, subject to the -- to this, that none of  20 these documents, in my submission, have been proved,  21 and they don't, in my submission, apparently fall  22 within any other category of admissibility, although  23 I'm sure we'll hear my friend on that.  I don't really  24 have an objection on the basis of having it marked for  25 identification, but as I say, my position is that none  26 of the documents have been proved and none should be  27 properly marked.  2 8 THE COURT:  All right.  Well, we're going to come to the real  29 problem in due course, so Tab 1 may be Exhibit 265 for  30 Identification.  31 MR. RUSH:  Now, My Lord, is that both the documents?  I have two  32 separate documents there under different numbers of  33 the federal government's document list, I think, 10734  34 and 10731.  Is that what you are marking as the  35 exhibit?  36 THE COURT:  Yes, and attachments, together Tab 1 will be 265 for  37 identification -- or do you want to mark them A and B  38 for identification?  39 MR. GOLDIE:  I think it would be better A and B.  The document  40 10734 would be A and the various documents under 10731  41 would be B.  42  43 (EXHIBIT 265A FOR IDENTIFICATION - DOCUMENT  44 10734)  45 (EXHIBIT 265B FOR IDENTIFICATION - DOCUMENT  46 10731)  47 3792  D. Michell (for Plaintiffs)  Cross-exam by Mr. Goldie  1 THE COURT:  Yes.  2 MR. GOLDIE:  And I -- the whole point of my proposal is that I'm  3 not seeking to have them admitted at this point.  4 THE COURT:  No.  5 MR. GOLDIE:  Now, under Tab 2 -- I wonder if the witness might  6 have the court's document.  7 Q   Mr. Michell, under Tab 2, first there is a blue page,  8 and would you turn that over, please.  You will see  9 there a -- what purports to be a Band Council  10 resolution dated the 1st of May, 1974.  Do you  11 identify your signature on that page as a councillor?  12 A   Yes.  13 Q   And that was just before you became the chief  14 councillor?  15 A   Something like that.  16 Q   Yes.  And Johnny Mack was the chief councillor and he  17 is what clan?  18 A   Laksamshu.  19 Q   Yes.  And is he a hereditary chief?  20 A   Yes.  21 Q   Now, this was a resolution which states that Johnny  22 Mack of Moricetown Band will be held person of  23 registered trapline and Knockholt.  I don't recognize  24 that name.  Where is that place?  25 A   That's east of Houston.  26 Q   And of Perow, P-e-r-o-w.  And is that another  27 location?  28 A   No, it's the same area.  29 Q   I see.  All right.  30 A   Called CN station.  31 Q "Who will be company him, name is Fellow Carl  32 David, grandson of Johnny David and Moses  33 David son of Johnny David who will take over  34 my father hunting ground."  35  36 Signed Johnny David.  Now, do you recall what that  37 resolution was doing?  Was it authorizing or approving  38 the transfer of a trapline, or was it adding to the  39 company, or just what was it doing to your  40 recollection?  41 A   This trapline was registered under Johnny David, and  42 apparently Johnny David's father was Laksamshu.  43 Q   Yes.  44 A  And the people of that clan there, Laksamshu, they  45 make up a petition, they want it back, and they want  46 it to be on somebody else name.  There are relatives  47 living in Burns Lake.  They want it on their name, so 3793  1  2  Q  3  A  4  5  6  7  8  Q  9  A  10  Q  11  12  A  13  14  Q  15  16  17  18  19  A  20  Q  21  22  23  A  24  25  26  Q  27  28  29  30  A  31  Q  32  33  34  35  A  36  Q  37  38  A  39  Q  40  41  42  43  A  44  Q  45  46  47  D. Michell (for Plaintiffs)  Cross-exam by Mr. Goldie  they go back to the proper house.  I see.  So right then they had a meeting in Moricetown, and  Johnny David and Moses David said that if you want it  to go back to the rightful owner, then Johnny Mack  will be the one, head of that trapline.  That's what  they decided at that feast hall.  This was a decision of these particular people?  Yes.  And was not a requirement of the Fish and Wildlife  people?  No.  So we went and supported that with the Band  Council resolution.  And the Fish and Wildlife people were only interested  where traplines were being transferred which were  registered in the name of more than one person, and  they wanted to be sure that all of the company agreed  to it; isn't that your recollection?  I don't know what their feelings is.  No.  I am talking about your understanding of the --  of why Band Council resolutions were passed onto the  Fish and Wildlife branch.  Well, at times some individual would transfer into the  wrong hands or something, and maybe even to  non-Indians, so they preventing it from that.  And then -- I'm sorry.  And then they would get  together and pass a resolution like this, and then  they would give it to the Fish and Wildlife branch and  ask the Fish and Wildlife branch to make changes?  That's right.  Thank you.  Now, we were also talking yesterday, Mr.  Michell, of the Buck Flats Road, and I think you  mentioned that it -- at one time it wasn't much more  than a wagon road?  Yes.  Now, the -- that is to say a road that was passable  with a horse and wagon or a team and wagon?  Yes.  Now, before -- well, firstly, I take it you would  agree with me that before the white man came, your  people did not have horses or domestic animals, except  what, dogs?  Dogs .  Yes.  So before the horses became available to your  people, you would get your -- your people would get to  the territory from Moricetown on foot; is that your  understanding? 3794  1  A  2  Q  3  4  5  A  6  Q  7  8  A  9  Q  10  11  12  A  13  Q  14  15  16  A  17  Q  18  A  19  Q  20  21  22  23  24  A  25  26  27  28  29  Q  30  A  31  32  33  Q  34  35  36  A  37  Q  38  39  40  41  42  43  A  44  Q  45  46  47  A  D. Michell (for Plaintiffs)  Cross-exam by Mr. Goldie  That's right.  And is it any part of the oral history of your people  that trapping was carried out on the territory before  the horses became available?  Yes.  And the people who trapped there would bring out furs  for trading purposes; would that be correct?  Yes, during the course of -- they did.  And the furs were traded for goods that weren't  available to you, such as guns, blankets, knives,  things like that?  Yes.  And would your oral history confirm that such things  as guns were not available to your people before the  white man?  Yes, they had their own weapon.  They had -- they didn't have firearms.  No.  So that the reason for going down to the territory and  trapping, in addition to obtaining furs for ceremonial  purposes and meat, was to obtain furs that could be  traded for valuable goods, as far as your people were  concerned?  That's part of your oral history, is it?  Not really.  Like you talk about trading first.  The  foreigners get the idea from the Indians that they can  use those for clothing.  Years ago they just process  them furs in their own way and they use it for  clothing.  I understand that.  They stay out in the territories, years ago, and like  I say, they are part of the land and they live out  there.  But am I not correct in my understanding of your  earlier evidence that some of the furs would be used  for trading purposes?  Yes, they traded, yes.  Now, in the summary of your evidence that we were  given, it was said that you would describe how you  harvest and manage resources on the territory, and  indeed you have given evidence to that effect.  Would  you tell me, please, what the Wet'suet'en word is for  harvest?  Harvest?  When my friend asks you, have you harvested the  resources, what Wet'suwet'en word do you think of as  the equivalent of that word?  C'e K'a 'atah. 3795  D. Michell (for Plaintiffs)  Cross-exam by Mr. Goldie  1 Q   Could Mr. Michell —  2 A   Can be two words in two ways too, like C'e K'a  3 nii'at'en is another word.  4 MR. GOLDIE:  Perhaps you ought to get that down too.  5 THE COURT:  Two words with the same meaning?  6 THE WITNESS:   Yes.  Depends.  7 THE TRANSLATOR: C'e K'a 'atah, C'e K'a 'a-t-a-h.  C'e K'a  8 nii'at'en, C'e k'a n-i-i'a-t-e-n.  9 MR. GOLDIE:  10 Q   Which of those two comes closest to the meaning of  11 harvest?  12 A  Make a little difference, depending on what they are  13 harvesting.  14 Q   Well, take the example of fur bearing animals.  15 A   Fur bearing would be C'e K'a nii'aten.  16 Q   And literally that means collector?  17 A   Yes.  18 Q   All right.  Thank you.  19 THE COURT:  I'm sorry, fur bearing would be the first one?  20 THE TRANSLATOR: Second one.  21 MR. GOLDIE:  22 Q   And when my friend refers to conserving the resources,  23 is there a Wet'suwet'en word that you think of as the  24 equivalent of conserve?  25 A   That too, there are a lot of different words, and I  26 just couldn't place which one is.  27 Q   Well, let's again think of the example of fur bearing  2 8 animals.  29 A   Protecting something, you know, like you ask different  30 words for protecting a person or protecting property  31 or -- so there is -- I couldn't just --  32 Q   What would be the word for protecting fur bearing  33 animals?  Let's take beaver.  34 A   Regularly that's protecting.  35 Q   All right.  Thank you.  36 A  And then, you know, like 'a yuu lii, you know, like  37 something like valuable or something that you want to  38 protect, preserve or something, you say Heeghee  39 g'olii.  40 Q   That's a little different.  41 A   That's a little different.  That's why I didn't give  42 you just one example.  43 THE COURT:  Could I have the spelling of those two words,  44 please?  45 THE TRANSLATOR: Heeghee g'olii, H-e-e-g-h-e-e g'o-l-i-i.  'A yuu  46 lii, 'a y-u-u 1-i-i.  47 MR. GOLDIE:  My Lord, may the Band Council resolution dated May 3796  D. Michell (for Plaintiffs)  Cross-exam by Mr. Goldie  1 1st, 191A   under Tab 3 of the book of documents be  2 marked as the next exhibit.  3 THE REGISTRAR:  266, Tab 2, My Lord.  4  5 (EXHIBIT 2 66 - BAND COUNCIL RESOLUTION DATED  6 MAY 1, 1974  7  8 MR. GOLDIE:  Now, another question that we were discussing  9 yesterday, Mr. Michell, is the members of your house  10 in the answer that you gave to a question on the  11 Interrogatories.  I have placed that under Tab 8, My  12 Lord.  I would ask that that be marked, the house  13 members of the house of Namox, as given in answer to  14 question 24 of Mr. Michell's Interrogatories.  15 THE COURT:  Mr. Rush.  16 MR. RUSH:  I think this was put to the witness yesterday.  17 THE COURT:  Yes, it was.  18 THE COURT:  All right.  19 THE REGISTRAR:  267, Tab 8.  20  21 (EXHIBIT 267 - TAB 8 - INTERROGATORIES OF MR.  22 MICHELL)  23  24 MR. GOLDIE:  25 Q   Mr. Michell, I left with you the question of whether  26 you remembered any other members of your house.  If  27 you do, please tell me, if not, we'll move on.  2 8       A   I didn't bother with it anymore.  29 Q   That's fine.  30 THE COURT:  Well, I'm sorry, but I think I should add in my  31 notes what he said yesterday.  I think he gave a name  32 of somebody that lives at Burns Lake, did he not?  33 MR. GOLDIE:  Yes, he did.  34 THE COURT:  Can you remind me what?  35 MR. GOLDIE:  36 Q   Tom.  The Tom family.  A member of the Tom family?  37 A   Yes.  38 THE COURT:  Are there a number of members of the family?  39 THE WITNESS:   Pardon?  4 0 THE COURT:  Are there a number of members of that family?  41 THE WITNESS:   Well, he's got children, but they are on  42 different clans.  43 THE COURT:  Yes, right.  44 MR. GOLDIE:  45 Q   I don't believe Billy Mitchell is on this list.  And  46 the Billy Mitchell that I am talking about is the  47 person who does the trapping. 3797  1  A  2  Q  3  A  4  Q  5  6  7  A  8  Q  9  A  10  Q  11  12  13  14  15  16  17  18  A  19  Q  20  A  21  Q  22  A  23  Q  24  25  A  26  Q  27  28  A  29  Q  30  31  32  33  A  34  Q  35  A  36  Q  37  38  A  39  Q  40  A  41  Q  42  43  A  44  Q  45  A  46  Q  47  D. Michell (for Plaintiffs)  Cross-exam by Mr. Goldie  Yes, he's Laksamshu.  He's not of this house?  No.  All right.  Thank you.  And is he responsible for  trapping in the whole area of the house of Namox, both  the northern side and the south side?  Well, I place him there.  But he also traps on the north too?  Yes, I move him there.  I see.  All right.  Thank you.  You have testified  that your mother is Ema Michell, and she gave  commission evidence -- has given commission evidence.  I believe she testified that she asked for  compensation from Equity Mines, and you've given  evidence about Equity Mines.  My question to you is to  your knowledge did your mother ever endeavour to sell  mineral claims to Equity Mines?  Not that I know.  You have no knowledge of that at all?  Mineral claim?  You know what I mean by mineral claims, don't you?  Well, I have never seen her prospect, so I don't know.  Yes.  To sell to Equity Mines some interest in  minerals.  I don't believe that's their intention.  My question to you is do you remember -- do you have  any knowledge of that, and your answer is no?  No.  During your examination for discovery you were asked  about evidence that she gave that logging was carried  on by a -- in the territory by a Bill and Hellen  Widen?  Yes.  How do you spell that name?  W-i-d-e-n.  And the -- was it your evidence that both were or had  been members of your house?  Yes.  And had the wife ceased to be a member of the house?  She is deceased now.  Well, prior to her death had she been a member of  the -- your house?  Yes.  Had she ever ceased to be a member of the house?  No.  Would she and her husband, by virtue of being members  of your house, have the right to log on the territory 3796  1  2  A  3  Q  4  A  5  Q  6  A  7  8  Q  9  10  A  D. Michell (for Plaintiffs)  Cross-exam by Mr. Goldie  of Namox?  No, they never did log there.  Well, that was your mother's evidence, was it not?  Yes.  I corrected that later.  And you said that she was wrong?  She was assuming it because she didn't know which  company it was.  Your evidence was that she didn't know, and therefore  it couldn't have been this gentleman and his wife?  No.  11 THE COURT:  I don't think I got the name.  I got Bill and —  12 MR. GOLDIE:  W-i-d-e-n.  13 A   Bill and Helen Widen, W-i-d-e-n.  14 Q   Yes.  15 THE COURT:  Thank you.  You say they are members of your house?  16 THE WITNESS:  Yes.  17 THE COURT:  They are not on this list, are they?  18 THE WITNESS:  They are on the genealogy.  19 MR. GOLDIE:  If we find names on the genealogy that aren't on the  list attached to part of Exhibit 267, should we --  Just ignore this list and go by the genealogy.  Go to the genealogy?  Yes.  I see.  All right.  Do the people in the genealogy all  live in Moricetown?  Not all.  Is it possible for you to -- and I don't ask you to do  it now, but is it possible for you to take the  genealogy and indicate those who don't live in  Moricetown, just with an "X" or something like that?  Can you go through the genealogy and determine who  lives in Moricetown?  Well, I'll try to get somebody to do it for me.  When you say you will get somebody to help you, you  mean that you don't -- you are not confident that you  yourself know that?  Well, that's right.  I know some of the names.  I have  difficulty remembering names.  I see.  All right.  Well, I would like you, without  taking the court's time now, to do that over the lunch  hour, if it's convenient for you.  Just take the  genealogy and put an "X" on it, so that we can see  who -- an "X" opposite the name of each person who  doesn't live in Moricetown, dealing only with those  who are living, of course.  That's an "X" beside those who do not live in --  20  Q  21  22  A  23  Q  24  A  25  Q  26  27  A  28  Q  29  30  31  32  33  34  A  35  Q  36  37  38  A  39  40  Q  41  42  43  44  45  46  4 7 MR.  RUS1 3799  D. Michell (for Plaintiffs)  Cross-exam by Mr. Goldie  1 MR. GOLDIE:  That's right.  I want to find out who in the  2 genealogy listed as living members of the house don't  3 live in Moricetown.  4 Q   Now, is it my understanding, Mr. Michell, that the  5 house boundaries that are shown on that map, Trial  6 Exhibit 5, were a matter of secrecy before the trial,  7 that people weren't to be told about them?  When I say  8 people, I mean people outside the Gitskan-Wet'suwet'en  9 people.  White people.  10 A   I don't think there is any secrecy, but, you know, you  11 don't want to show people what's not really accurate,  12 you know.  When you are trying to describe something,  13 you better make sure what you are describing before  14 you show it to anyone to tell them this is what it is.  15 Q   So that -- until you are satisfied that all these  16 boundaries were right, you didn't want to mislead  17 people; is that a fair way of putting it?  18 A   Yes.  But then again, you know, it was demanded of us,  19 so we can give out something that's close to it.  20 Q   When you say "demanded of us", you are referring to  21 the Interrogatories?  22 A   Yes.  The Court required of us.  23 Q   Could I have Exhibit 82, please, Madam Registrar.  I  24 think it's in the book of Mr. Alfred Joseph's.  25 If we could just put this blue book to one side, Mr.  26 Michell, and I am going to place in front of you  27 Exhibit 82, which Mr. Alfred Joseph identified as a  28 transcript or a record of the All Clans' feast in  29 April of 1986.  And you told His Lordship that you  30 were there, and you recall Mr. Neil Sterritt being  31 there?  32 A   Yes.  33 Q   Now, Mr. Sterritt is recorded as speaking right at the  34 end of the feast at page 38.  If you would turn to  35 that please.  Now, about halfway down the page.  I am  36 just going to ask you to read the first four lines or  37 five lines of what he said, and I'll read out to you  38 the part that I am directing your attention to:  39  4 0 "The government wants us all to fight in  41 public.  We don't need to do this with the  42 government.  This is an issue to settle among  43 ourselves.  The province don't know where our  44 boundaries are, only the chiefs around the  45 hall who know where the boundaries are."  46  47 Do you recall Mr. Sterritt saying that? 3800  1  A  2  Q  3  4  5  A  6  Q  7  MR.  RUSH:  8  9  10  11  12  13  THE  COURT  14  15  16  17  18  19  20  21  22  23  24  25  26  27  MR.  RUSH:  28  29  THE  COURT  30  31  32  33  MR.  RUSH:  34  35  36  THE  COURT  37  38  39  40  41  42  43  44  45  46  47  MR.  RUSH:  Proceedings  Yes.  And what he was talking about was more or less what  you have just been saying; that is to say that until  the chiefs were satisfied --  Yes.  -- there weren't to be any --  Well, I object to this, My Lord.  I think falls under  the category of what Your Lordship raised to us when  Mr. MacKenzie was doing a similar thing, and that is  taking a statement of one person and putting it to the  other.  And I think you described it something in the  fashion of terrorizing the witness, and —  :  I only used that word because some ancient judges  used it centuries ago.  But it's a little different,  isn't it, Mr. Rush, when you are dealing with a  situation where the witness was present when someone  else said something in cross-examination.  What Mr.  MacKenzie was doing was putting the evidence at trial  to the witness and asking him to comment upon what the  witness has said.  We're talking here about a  statement made not at trial but presumably in relation  to the matters in question, and I think that in  cross-examination it's probably legitimate.  It's not  the same thing as using evidence of one witness to  cross examine another witness, it's -- it's something  that actually happened that may have relevance.  Well, what I say is that the distinction is a pretty  fine one, in my submission, between --  :  Let me take the situation where a person is present  at the commission of a crime and says I was there and  the accused said such and such.  That is evidence that  could clearly be admitted in cross-examination.  Yes, put to the witness, did so and so say such and  such, but not put to the witness, what did the felon  mean by such and such.  :  Not what he meant.  Carrying the analogy further, if  two people were there, one said what happened and then  the second one said, well, at this trial what number  one said was this, what do you have to say about that,  That seems to me to be impermissible.  But if there is  a dialogue between plaintiffs on an earlier occasion  out of court, and the witness and the speaker are  participants in the dialogue, and by participants I  don't mean just those who spoke, but if something is  said at a meeting, it seems to me that is subject to  cross-examination.  As to what was said, but not as to what was meant by 3801  D. Michell (for Plaintiffs)  Cross-exam by Mr. Goldie  1 that person saying it.  I don't think Mr. -- all that  2 Mr. Michell can say is something was said, and I can  3 tell you what I think or know about this subject, but  4 to ask him, as I think -- I think it wasn't stated  5 directly, but the implication of the question, I  6 suggest, was that what was -- what do you think that  7 Mr. Sterritt meant by saying these comments.  8 THE COURT:  I do not think, subject to what Mr. Goldie said,  9 that the witness can be asked what Mr. Sterritt meant.  10 I don't want to say more than that just at the moment,  11 until I hear Mr. Goldie's next question.  12 MR. GOLDIE:   I think the question I put to him was that you  13 understood Mr. Sterritt to be talking about the same  14 thing that he had described to Your Lordship a few  15 minutes ago.  16 THE COURT:  I think that's permissible, because that goes to the  17 state of the mind of the witness.  18 MR. GOLDIE:  19 Q   Yes, that was the question.  He hearing something, did  20 he -- did his understanding of it accord with what he  21 had said, namely, that until the chiefs had made up  22 their minds, nobody was to know about these maps, that  23 they weren't legal until the chiefs had made up their  24 mind; is that a fair way of putting it?  25 A   To me, you know, like we all there, you know,  26 gathered there.  The map was shown there, you know,  27 like I explain the other day, that looked like they  28 followed the Indian Affairs dividing the district,  29 that's where they drew the line, you know, whoever did  30 that, you know.  And the elders didn't have no  31 knowledge of how it was done.  And so I believe -- to  32 me when he was speaking there, I thought that, you  33 know, nobody knew -- the government doesn't know where  34 our boundary is, so we better get to work and settle  35 where our boundaries are, and I believe that's what he  36 was expressing to the visitors.  37 Q   But there were maps up in the hall of the Feast House  38 at the time?  39 A   Yes.  40 Q   Yes.  And those maps were made by people who worked  41 for the Tribal Council; isn't that so?  42 A   Yes.  It's still a working map too, but it's up to the  43 people to keep working on it.  44 Q   Nothing to do with the government?  45 A   No.  46 Q   And they were maps that were up there for the purposes  47 of showing where the boundaries of the houses were? 3802  1  A  2  Q  3  4  A  5  6  Q  7  8  A  9  Q  10  11  A  12  Q  13  A  14  Q  15  16  17  18  A  19  Q  20  21  A  22  Q  23  A  24  Q  25  26  27  28  29  A  30  Q  31  A  32  Q  33  34  35  36  37  38  39  40  41  42  43  A  44  Q  45  46  47  A  D. Michell (for Plaintiffs)  Cross-exam by Mr. Goldie  Yes.  And they were maps that weren't to be given out to  other people?  This map just gives some idea to the chiefs up in the  east, you know, what our territories were.  Yes.  Exactly.  They were intended to show the chiefs  of the Carrier-Sekani?  Yes.  Where the house boundaries of the Gitksan and  Wet'suwet'en people were?  Yes.  Because this was the overlap feast?  Yes.  Now, when you -- you spoke at this feast on a couple  of occasions, and I'll come to them a little later,  but did you describe the territory of Namox at this  feast?  Yes.  And did you do it the same way as you would at a  Headstone Feast?  Depending on the circumstances.  Can you explain further to me what you mean by that?  Whatever we are dealing with.  Well, at the time of the All Clans' Feast you were  dealing with or what you intended to deal with was to  demonstrate to the chiefs from the east, that is to  say the Carrier-Sekani, where your territory was;  isn't that right?  Yes.  So you were describing it in the traditional way?  Yes.  Now, does your -- do the traditions of your clan,  which, as I understand it, consists of the two houses  of Namox and Kweese, indicate that at sometime prior  to the present there were some four territories that  belonged to the clan?  In other words, today the house  of Namox has the territory in its naming at Goosley  Lake, and Kweese has a territory, but was there ever a  time when the Tsayu, that is to say the clan itself,  had four territories?  And I'll read them out to you.  An area around the head of Buck Creek.  Well, that  would be Sam Goosley Lake, wouldn't it?  Yes.  An area around Telkwa River and Mooseskin Johnny Lake.  Does your oral tradition ever indicate that the clan  ever had territory around there?  That's talking about Kweese territory way back? 3803  D. Michell (for Plaintiffs)  Cross-exam by Mr. Goldie  1 Q   Way back?  2 A  Way back.  3 Q   And it's no longer Kweese territory?  4 A   Yes, it is.  That's the one that's got the claim on  5 now.  6 Q   I see.  All right.  What about an area around Day Lake  7 near Forestdale?  8 A   That I didn't know about.  9 Q   Is there a Wet'suwet'en word, and I'll spell it and  10 then Mr. Michell can pronounce it, N-d-e t-t-s-a-n-e?  11 THE TRANSLATOR:  Spell it again please.  12 MR. GOLDIE:  N-d-e t't'-s-a-n-e.  13 THE TRANSLATOR: Nde ttsane.  14 MR. GOLDIE:  If that rings a bell.  It's a very faint one so  15 far.  16 THE TRANSLATOR: That sounds like Nde ttsane.  17 MR. GOLDIE:  18 Q   You never heard of that?  19 A   No.  20 Q   All right.  All right.  How about an area around  21 Decker Lake known as -- and I'll spell this -- N-d-e-  22 t-t-1-a-t?  23 THE TRANSLATOR:  Nde ttlat.  24 MR. GOLDIE:  25 Q   Never heard of that?  2 6 A   No.  27 Q   And has the Tsayu clan ever, in your -- in its oral  28 traditions, ever referred to the territory around what  29 is now known as Decker Lake?  30 A   They may mention, but I don't know anything about it.  31 Q   All right.  Thank you.  I think -- would it be fair to  32 say that when the feast was held in Moricetown in  33 1986, that you and your fellow chiefs had been working  34 on the question of boundaries for better than 10  35 years?  36 A   Not me, but the elders.  37 Q   The elders.  That is to say, in your case, that would  38 be Lucy William and --  39 A   The knowlegeable people of the territory.  40 Q   The time would be approximately 10 years?  41 A   Right.  42 Q   Now -- and I think you told us in your evidence that  43 you yourself weren't entirely sure of the boundaries  44 of your house when you were examined for discovery in  45 April of 1987?  I think you said you are still  46 learning?  47 A   Yes, that's right. 3804  D. Michell (for Plaintiffs)  Cross-exam by Mr. Goldie  1 Q   I suggest to you that there is one thing that is known  2 and always has been known, and that is where the  3 trapping line is?  4 A   Yes.  5 Q   And those traplines go back a long time?  6 A   Yes.  7 Q   Did you know the late Mr. Thomas George, who was Mr.  8 Alfred Joseph's uncle?  9 A   Yes, I seen the man, yes.  10 THE COURT:  Sorry?  11 THE WITNESS:   Yes, I seen the man.  12 MR. GOLDIE:  13 Q   Now, there is in evidence a copy of a letter  14 identified by Mr. Joseph as written by Mr. George to  15 Mathew Sam in connection with a dispute over trapping  16 territories.  That's Exhibit 88A.  I think it's in the  17 book.  It's under Tab 21.  18 THE REGISTRAR:  I have it here.  19 MR. GOLDIE:  20 Q   I dare say you haven't seen this letter before, have  21 you?  22 A   No.  23 Q   Well, I am going to direct you to page one, the last  24 paragraph, and it starts with these words:  25  2 6 "Mr. Arthur Seymour, who was also as Mathew's  27 witness, does not know anymore about this  28 trapping place than Charlie William."  29  30 A  Which one?  Last page?  31 Q   No, the first page.  32 A   Oh.  33 Q   Right at the bottom.  34 A   Oh, yes.  35 Q   Now, over on the next page Mr. George goes on and he  36 says that -- and this is midway through the first  37 paragraph:  38  39 "Our Uncle Joseph now is the fifth generation  4 0 from the time  ..."  41  42 And the time being when they were given the  43 trapline -- the trapping rights according to Indian  44 rights.  45  46 "... Fifth generation from the time this  47 trapping place was given to our ancestors." 3805  1  2  3  4  5  6  A  7  Q  8  9  10  A  11  Q  12  13  14  15  16  17  18  19  20  A  21  Q  22  23  24  25  26  A  27  Q  28  29  30  31  A  32  Q  33  34  35  A  36  37  Q  38  A  39  Q  40  41  A  42  Q  43  A  44  Q  45  46  A  47 THE  COURT  D. Michell (for Plaintiffs)  Cross-exam by Mr. Goldie  Now, Mr. Michell, on the basis of -- well, firstly,  I ask you this.  Is there anything in your oral  tradition of your house about when the trapping place  was given to the house of Namox?  No.  On the basis of a generation, and you know when a  generation is, it's father to son and that's two  generations?  Yes.  On the basis of a generation being equal to, say, 30  years, five generations, as counted by Mr. George in  1945, would take you back to, say, 1800, which is  quite a long time ago.  Do the traditions of your --  the oral tradition of your people give you any  indication by generation, by grandfather, great  grandfather or whoever, of how long it was when you  began to -- your people began to trade furs for things  they didn't have and that they wanted?  I know its been done, but I don't know how long ago.  I see.  Well, let me see if I can put one other  proposition.  Is it part of the tradition -- does the  tradition of your house recognize the movement of some  of your people from Moricetown to Hagwilget following  a blocking of the canyon at Moricetown?  Never heard of it.  All right.  Is there anything in your tradition which  connects the giving of the trapping area at Sam  Goosley Lake to the house of Namox with the -- with  trading?  I don't think so.  All right.  Anything in the tradition of your house  which deals with trading with your neighbours, that is  to say the Gitksan or the people in the east?  Sam Goosley, yes.  And like the berries and stuff,  they --  What about furs?  They probably did.  I don't know.  The trapping of beaver is done with steel traps or  iron traps?  You mean today?  Yes.  Yes, it's done by --  And in your personal knowledge has always been done  that way?  Yes.  : Is this convenient to adjourn, Mr. Goldie. 3806  D. Michell (for Plaintiffs)  Cross-exam by Mr. Goldie  1 MR. GOLDIE:  Yes.  2 THE REGISTRAR:  Order in Court.  3  4 (PROCEEDINGS ADJOURNED FOR A SHORT RECESS)  5  6  7  8  9 I HEREBY CERTIFY THE FOREGOING TO  10 BE A TRUE AND ACCURATE TRANSCRIPT  11 OF THE PROCEEDINGS HEREIN TO THE  12 BEST OF MY SKILL AND ABILITY.  13  14  15 LORI OXLEY  16 OFFICIAL REPORTER  17 UNITED REPORTING SERVICE LTD.  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 3807  D. Michell (for plaintiff)  Cross-exam by Mr. Goldie  1 (PROCEEDINGS RESUMED PURSUANT TO A SHORT ADJOURNMENT)  2 THE REGISTRAR:  Order in court.  3 THE COURT:  Mr. Goldie.  4 MR. GOLDIE:  5 Q   Mr. Michell, just before the break we were talking  6 about trapping and things of that order.  I -- am I  7 right in assuming that if you're going to protect the  8 beaver in terms of having beaver there year after  9 year, the only sure way of doing it is to have just  10 one trapper in a particular area?  In other words, you  11 can't have two or three trappers in the same area, can  12 you, without running the risk of -- of losing all the  13 beaver?  14 A   Yes.  There's not just one beaver house.  There's lots  15 of them.  16 Q   Yeah.  17 A   They always go to different areas, or they go two  18 together and just go along each other.  19 Q   Well, I'll put it another way.  The only way in which  20 you can protect the beaver or conserve the beaver is  21 to ensure that there's just one trapline.  There may  22 be more than one person working on the trapline?  23 A   Yes.  24 Q   But there is -- there can be just the one line in a  25 given area?  26 A   No.  It doesn't work that way.  27 Q   It doesn't work that way?  28 A   It's like -- I guess you didn't catch on when Alfred  29 was explaining it.  You go -- you have beaver signs.  30 You know, you can go to the fall.  Then you know where  31 there is beaver.  32 Q   Yes?  33 A  And then you look at the size of the house and you go  34 according to that.  You go all along to wherever the  35 beaver houses are.  36 Q   Oh, yes.  I see what you mean.  I didn't mean to  37 suggest that the line had to be in the same place  38 every year.  39 A   No.  40 Q   What I meant to suggest to you was that you couldn't  41 have two or three traplines all in the same area at  42 the same time?  43 A   Yeah.  There is a possibility that -- you know, like,  44 a trapper has got to know what he's doing, and the  45 place where you trap, you know, you didn't trap below,  4 6 way down below and these other beavers might move up  47 again.  That's what happens sometimes too. 3806  D. Michell (for plaintiff)  Cross-exam by Mr. Goldie  1 Q   You have to have just the one mind?  2 A   You have to use your own judgment every time.  3 Q   Looking after the territory?  4 A   That's right.  5 MR. GOLDIE:  Right.  Thank you.  And that means that within a  6 particular area, you'd have the -- the one trapper or  7 the one company who were responsible for that area?  8 MR. RUSH:  Excuse me.  One trapper and one company.  9 MR. GOLDIE:  One trapper or one company.  10 MR. RUSH:  Well, shouldn't they be put separately?  I mean, a  11 company suggests a number one.  Trapper suggests one.  12 MR. GOLDIE:  Well, I use the words "or company" because Mr.  13 Michell's trapline is Mr. Michell and a company.  14 THE COURT:  Mr. Michell has already said that it doesn't have to  15 be just one trapper.  He said that.  16 MR. GOLDIE:  17 Q   Yes.  The question that I'm putting to you is this:  18 Within a particular area, there is -- there is just  19 the one mind.  Whether it's a company or whether it's  20 a single trapper, it doesn't matter, but there's just  21 the one mind, the trapper's mind, who is looking at  22 the beaver signs, deciding where to place the traps,  23 but he's doing so with the intention that there be  24 sufficient beavers who are left there so that the next  25 time he comes around next year there are still beaver?  26 A   That's right.  27 Q   Right.  Now, this -- this means that the area that  28 would be allotted to that one trapline, that one  29 trapper or that one company, would follow the areas  30 where the beaver are found, or it would — and they're  31 the lakes and streams and valley bottoms; is that  32 right?  33 A   Yes.  34 Q   Right.  So the -- the boundaries of the — of the  35 trapline would be the height of land that would  36 separate one valley from another; is that --  37 A   Yes.  38 Q   Now, do you know when the trapline -- the government  39 trapline registration system came in?  And I realize  4 0 that you might not have -- you'd be a very young  41 person when it did come in, but do you have any  42 knowledge of when it actually began?  43 A   No.  Probably wasn't even born.  44 Q   Well, we do know, however, that Alfred Namox  45 registered a line in 1927, don't we?  46 A   Yes.  It must be the first one.  He must be the first  47 one. 3809  D. Michell (for plaintiff)  Cross-exam by Mr. Goldie  1 Q   Be one of the first ones?  2 A   He might be the first one.  3 MR. GOLDIE:  Yeah.  And that trapline registration was a way of  4 making sure that an unregistered trapper didn't trap  5 on the territory of a registered trapper?  6 MR. RUSH:  How would he know that?  7 MR. GOLDIE:  Well, I'm asking him if that's his understanding of  8 a registration system.  9 MR. RUSH:  The registration system that was in place when Alfred  10 Namox registered his trapline.  That was the question.  11 The relation -- the question was related to the time  12 of Alfred Namox.  13 MR. GOLDIE:  14 Q   Well, I'll rephrase my question.  15 Within your experience, the registration system  16 makes sure that somebody who is unregistered doesn't  17 trap on the territory of a registered trapper.  18 That's -- that's what it does for you as the trapper;  19 isn't that right?  20 A   I still couldn't figure out how you mean it.  21 Q   Well, that's my fault then, Mr. Michell, and I'll put  22 it a little differently.  You hold a trapline which --  23 you and your company hold a trapline which is almost  24 exactly identical with the Sam Goosely/Namox area; is  25 that correct?  26 A   Yes.  27 Q   And within that area no one else may trap?  28 A   Yes.  Just Tsayu clan.  2 9 Q   Yes.  And that includes white man?  30 A   No.  31 Q   Do you find any white man trapping in your area?  32 A   I don't see no white Tsayu around.  33 Q   I'm sorry.  I didn't hear you.  34 A   I don't see, like, any white man Tsayu clan.  35 Q   No.  But my point is this:  That that registration  36 with the provincial government means that the  37 provincial government will not allow anyone else to  38 trap within your territory?  39 A   You mean -- I guess there's no white man trapping in  40 our territory.  We wouldn't allow it.  Like I said  41 yesterday, somebody else try to go in there.  42 MR. GOLDIE:  In fact, the -- the -- and it even goes so far as  43 Mr. Alfred Joseph testified; that when a dispute arose  44 as between the two Wet'suwet'en people, Mathew Sam and  45 Mr. Thomas George, the game warden and the Indian  46 agent determined who was the registered trapper?  47 MR. RUSH:  My lord, is that — 3810  D. Michell (for plaintiff)  Cross-exam by Mr. Goldie  1 MR. GOLDIE:  Or is that your understanding?  2 MR. RUSH:  Is that an example of putting the evidence of a  3 previous witness to the witness on the stand?  4 MR. GOLDIE:  Well, I was using that as an example of a dispute  5 resolution.  6 THE COURT:  I don't think it is.  I think it's — it's not  7 asking the witness to comment on whether those things  8 happened.  It's putting it forward as an example, Mr.  9 Rush, again a different thing.  10 MR. RUSH:  Very well.  11 MR. GOLDIE:  12 Q   The question that I was putting to you was that the --  13 the provincial government protects the right of the  14 registered holder of a trapline to trap that area  15 exclusively; isn't that your understanding?  16 A  Well, to my understanding it's -- see, like, that  17 trapline register is just to protect our rights in our  18 area.  19 Q   Yes?  20 A   That's to my understanding.  21 Q   Yes.  I accept that.  That is to say the understanding  22 of the -- of the trapper, the protection of the  23 trapper?  24 A   So I assume that's the reason why my grandfather went  25 along with the register of the traplines, so nobody  26 else can come in and try to claim it.  27 MR. GOLDIE:  But that -- it is that which allows one person to  28 trap a given area, or one trapper or one trapline  29 company to trap a given area and to protect and  30 conserve the resources of that area.  It's that  31 exclusive aspect; would you agree with that?  32 MR. RUSH:  My lord, I — I mean, the that of that — I mean, I  33 think that question should be put in a straightforward  34 way.  He said it's that and then he comes back to what  35 he considers to be the noun of the -- or the subject  36 of the sentence.  I think it could be put a little  37 more directly to the witness.  38 MR. GOLDIE:  39 Q   I'm sure it would and I welcome my friend's  40 assistance.  41 Do you agree that the registration system helps to  42 protect and conserve the fur-bearing animals?  43 A   I don't -- I just don't really understand how the  44 system works today.  45 Q   All right.  Let me take you back to your --  46 A   For my personal reason --  47 Q   I beg your pardon? 3811  D. Michell (for plaintiff)  Cross-exam by Mr. Goldie  1 A   For my own personal reason maybe I could just tell  2 you.  That registration you're talking about, it's the  3 government legislation I believe you're getting at and  4 you're trying to make me agree to its regulation and  5 stuff.  6 Q   Oh, I didn't ask you to agree to it.  I said, do you  7 agree with me that the effect of it is to conserve and  8 protect the beaver?  9 A   If it's the reason for it, then that's our law.  We'll  10 protect it.  11 Q   So your law and the system that I'm talking about  12 seems to have --  13 A   If that's what is the purpose.  14 Q   It seems to have the same purpose?  15 A   Then I agree.  16 MR. RUSH:  Maybe the witness —  17 THE WITNESS:  If it's just to protect it, like in our way, if  18 it's protecting our -- our -- you know, like, our land  19 that we say we -- our territory, if it's providing and  20 helping us to protect it, you know, we can use that  21 means to protect our land.  You know, it's something  22 good that we go along with.  23 MR. GOLDIE:  Yes.  And I wanted to take you back to some of the  24 remarks that you made at the Moricetown feast in April  25 of 1986, and it's under Tab 8 of the next book.  I'll  26 put it in front of you there.  Does your lordship have  27 that?  28 THE COURT:  Is that the book that was used in the examination of  29 Mr. Joseph?  30 MR. GOLDIE: Yes, it was.  31 THE COURT: I don't have it here.  32 MR. GOLDIE: I have an extra copy of the —  33 THE COURT: Thank you.  Are you going to be using it  34 extensively, Mr. Goldie?  35 MR. GOLDIE:  There are three or four references in it.  36 THE COURT:  I can quickly send for it.  37 MR. GOLDIE:  It would be easier to take off these and -- now, in  Tab 8 in front of you there -- page 28, my lord.  Mr. Michell, you are -- it's indicated that you  here spoke at some length about the -- the territory  of your house, and you said, and I quote:  "I am going  to talk about our territory, Neel dzii teezdlii ben".  Neel dzii teezdlii ben.  "Sam Goosely outflow.  Points to the map on the wall".  And that map showed -- was a map of the territory?  Yes.  If he get in there close to it, whoever's  38  Q  39  40  41  42  43  44  A  45  Q  46  47  A 3812  D. Michell (for plaintiff)  Cross-exam by Mr. Goldie  1 interested in it.  2 Q   Was it like this?  3 A   Yes.  4 Q   This map behind you with the red border, Exhibit 5,  5 was it like that?  6 A   Yes.  7 Q   All right.  And then you say:  "The map says it  8 belongs to Tsayu.  From the other end, Nuu'tsenii,  9 they say it belongs to them".  Just pausing there, the  10 Nuu'tsenii are the chiefs in the east, the Carrier  11 Sekani; is that right?  12 A   Yes.  13 Q   And you were saying there's our map and it shows that  14 it belongs to us?  15 A   Yes.  16 Q   Now, the Nuu'tsenii say it belongs to them, and then  17 you're going on to describe your territory so as to  18 demonstrate that this is part of your territory?  19 A   That's right.  20 MR. GOLDIE:  All right.  Let's go on with it then.  And you say:  21 "The reason all of you came to look at -- is to look  22 at the map and make the high chiefs talk to you".  23 MR. RUSH:  "For you".  24 MR. GOLDIE:  25 Q   "For you".  Thank you.  "That's why the old people  26 told how the high chiefs own names and the trapline,  27 our land", and then there's the Wet'suwet'en name,  28 "outflow Sam Goosely.  Our grandfather, Lame Michell,  29 showed us all the places to trap there".  30 A   Somebody made a mistake in there.  31 Q   Yes.  And there's a question mark there.  Who would  32 you be referring to?  33 A  My grandfather's Alfred Namox.  34 Q   Alfred Namox.  And then you say:  "We didn't come out  35 here to fight amongst one another" and so on.  Would  36 you agree with me that when you said this to the  37 assembled people at the feast, that you were talking  38 about your trapline?  39 A   Yes.  The territory.  40 Q   And the territory and the trapline are for you the  41 same thing?  42 A   Yes.  43 MR. RUSH:  Well, excuse me, my lord.  44 THE WITNESS:  The trapline is just within the territory.  It  45 could be anywhere, just the pathway where you walk.  46 MR. GOLDIE:  47 Q   But the place where you have the right to trap is for 3813  D. Michell (for plaintiff)  Cross-exam by Mr. Goldie  1 you the territory?  2 A   Yes.  3 MR. GOLDIE:  All right.  And when you say -- when you say, and I  4 quote, "That's why the old people told how the high  5 chiefs own names and the trapline", just pausing  6 there, do I understand you to be saying that --  7 THE COURT:  Thank you, Mr. Goldie.  8 MR. GOLDIE:  9 Q   -- that with the name goes the trapline?  Let me put  10 it another way.  That when -- if you succeed Lucy  11 William as Namox, the right to trap would go with that  12 name; is that the way it goes in Wet'suwet'en law?  13 A   The right is with everybody in the clan, but there is  14 certain people that are chosen to be the head of it --  15 Q   Yes.  16 A   -- who takes the highest name.  17 Q   And if -- and with the highest name goes the right to  18 say how the territory is going to be trapped?  19 A   Yes.  That's how all territories been done.  2 0 Q   Thank you.  And when you said "Our grandfather showed  21 us all the places to trap", there you were talking  22 about the places on the Sam Goosely territory?  23 A   That's right.  24 Q   And for anyone else to trap there was trespass?  25 A  What did you say first?  26 Q   Well, I'm sorry.  My last question wasn't reading from  27 the -- from the -- from the record of the clan  28 meeting.  29 A   From which sentence did you question me?  30 Q   It was, if you count down, one, two, three, four,  31 five, six lines from the line that has your name on  32 it, and right at the end of that it starts out "our  33 land", "our" and then the next line is "land" and then  34 the Wet'suwet'en name for the territory, "outflows Sam  35 Goosely.  Our grandfather showed us all the places to  36 trap there".  37 A  Well, whoever's writing it, you know, like, I guess  38 they never spell out the way I said it.  39 Q   They didn't get it quite right?  40 A   Yeah.  It's just what we've been explaining here, like  41 me and Alfred.  42 Q   Yes?  43 A  We have been taught from childhood where all our  44 boundaries are and the lakes and all this, and this is  45 what I was talking about.  46 Q   Right.  And you described the territory as outflow Sam  47 Goosely? 3814  1  A  2  Q  3  A  4  Q  5  6  7  8  9  A  10  Q  11  12  A  13  Q  14  15  16  A  17  Q  18  19  20  21  22  23  A  24  Q  25  A  26  Q  27  A  28  Q  29  30  A  31  Q  32  A  33  Q  34  A  35  Q  36  37  38  39  40  41  A  42  Q  43  A  44  Q  45  46  47  D. Michell (for plaintiff)  Cross-exam by Mr. Goldie  That's the west end.  Yeah.  That's the creek --  That's what it's named after, Neel dzii teezdlii ben.  And then the next question that I put to you was that  for anybody else -- and by anybody else I mean anybody  outside the House of Namox.  Anybody who didn't have  permission from the House of Namox who trapped, that  was trespass, was it not?  Yes.  And in the old days, it was punishable by death if it  was repeated?  Yes.  I guess they give them warning.  Yes.  After a warning.  And that's very different from  people having the right to go through the territory.  That was all right?  It's different.  Yes.  Now, long before the maps that were on the wall,  the all clan feasts and the maps that were used when  you responded to the interrogatories, long before  those maps, each trapper had a map of what his  territory was, didn't he?  He got it from the  government?  Well, that -- yes.  Do you have a copy of a map like that?  Yes.  And has it been -- have we seen it?  Probably.  You had most of my records somewhere.  Did you give your records to the tribal council when  you signed the blanket trapline proposal?  Yes.  Beg your pardon?  Yes.  Yes.  You don't have a copy of it here?  Not with me here, no.  I'm going to show you a -- a map that's under Tab 5 of  the blue book, my lord.  Now, this -- these are  documents from the province's Document 1276 and  they -- or from the documents from the file 609TO64,  Dan Michell.  Do you ever recall seeing anything like  that?  Yeah.  That's pretty old, isn't it?  Yes.  I don't know how old that is.  No.  But it has scratched out "Tiljoe Alec and  company".  And Alec Tiljoe was -- was the -- when  he -- the trapline was transferred to you after he  died; is that right? 3815  they  1  A  2  Q  3  A  4  Q  5  A  6  Q  7  8  9  A  10  11  12  Q  13  14  A  15  16  Q  17  18  19  20  21  22  A  23  Q  24  A  25  Q  26  27  A  28  Q  29  30  31  A  32  Q  33  A  34  35  36  Q  37  A  38  Q  39  A  40  41  Q  42  43  A  44  Q  45  A  4 6 MR.  GOLDIE  47  D. Michell (for plaintiff)  Cross-exam by Mr. Goldie  Yes.  From my mother.  And he died quite a long time ago?  Fifties.  Beg your pardon?  Fifties somewhere.  In 1950's.  Yes.  All right.  So -- and was that the  sort of map that you had at home?  Was the map of your  trapline something like that?  Yes.  That's the reason why I told yesterday I didn't  agree with the map anymore after Lucy told me  leave some lakes out.  Right.  You didn't agree that this was quite the right  boundary?  Yes.  By what they tell us where the boundary is by  pointing them out.  But doesn't this map include one of the lakes that you  said?  I'm referring to a little lake right underneath  the second "0" of Goosely Lake.  Isn't that one of the  lakes that you said was included in your territory but  the map that was attached to your interrogatory didn't  include?  This one.  Yes.  Yes.  Two of the lakes they included.  Yes.  But what's before you includes at least one of  those lakes, doesn't it?  I don't think so.  Oh, all right.  And this map also has in the upper  left-hand corner -- it comes in in a way that Mr.  Alfred Mitchell said was to be done; isn't that right?  If this is the Dliiyh hem ben.  Yes.  The exact approximate line, you know, I don't really  know it according to the map.  According to the land  there, I can --  If you were on the land, you could point it out?  I could point it out.  All right.  I was told when that other map included this, it was  not our --  The other map being the map that was attached to your  interrogatories?  Yes.  And you knew --  It included this.  :  All right.  Now, my lord, the witness has pointed  to a small lake which is just outside the boundary as 3816  D. Michell (for plaintiff)  Cross-exam by Mr. Goldie  1 shown on the map in front of you.  2 THE COURT:  South of Goosely Lake.  3 MR. GOLDIE:  No.  It's up at the upper left-hand corner.  4 THE COURT:  Yes.  5 MR. GOLDIE:  Does your lordship see the reference China Nose  6 Mountain?  Go left about seven o'clock.  7 THE COURT:  Yes.  8 MR. GOLDIE:  9 Q   And right almost in the junction of two boundaries is  10 a small lake and the witness said, "Yes.  That's  11 correct.  My -- my trapping territory doesn't include  12 that lake".  13 A   Only just that part, but this is still not right.  14 Q   You -- but let me put it this way:  Down in the south,  15 your territory includes everything north of the height  16 of land?  In other words, everything that drains into  17 Goosely Lake and Buck Creek, and these two little  18 lakes that we're talking about yesterday drain into  19 Goosely, do they?  20 A  Which two little lakes?  21 MR. RUSH:  Perhaps the map should be put to him, my lord,  22 Exhibit 184.  23 MR. GOLDIE:  It's not necessary that I pursue this.  I don't  24 want to prolong the matter unduly.  25 THE COURT:  What about down south — south of Goosely Lake?  26 There are two little lakes on the outside of this  27 boundary.  What do you say about them?  28 MR. GOLDIE:  Let me put the map back in front of the witness.  2 9 THE COURT:  I'm sorry.  30 MR. GOLDIE:  31 Q   Now —  32 A   He's talking about these two.  33 MR. GOLDIE:  That's correct.  His lordship is pointing to two  34 which appear to drain south.  Are those within your  35 territory?  36 MR. RUSH:  The witness pointed to two little lakes below the  37 black solid line.  38 THE COURT:  One just beyond the yellow Patrick Mitchell and one  39 a little further to the right.  40 THE WITNESS:  This, I know the way Alfred describe it, it's true  41 because Lucy said the same thing.  42 MR. GOLDIE:  43 Q   So you would say those -- those lakes that his  44 lordship has just referred you to are included in your  45 territory?  46 A   Yes.  47 Q   Even if they were on the other side of the hill from 3817  D. Michell (for plaintiff)  Cross-exam by Mr. Goldie  1 Sam Goosely?  2 A   Yes.  Even if the map says so.  It's still in there.  3 These old folks know where their territory is, so they  4 tell us.  5 Q   I accept that.  I just wanted to make sure that they  6 were saying that lake's on the other side of the hill,  7 or the mountain?  8 A  Well, that's pretty rough country up there.  9 There's -- you know, streams can run up from any of  10 those little hills.  Even sometimes you find spring  11 coming out below the hill.  It forms into little  12 creeks.  13 MR. GOLDIE:  All right.  14 THE COURT:  You know Patrick Michell?  15 THE WITNESS:  Yes.  16 MR. GOLDIE:  17 Q   Have you ever talked about where the boundary is with  18 him?  19 A   No.  2 0       Q   So you had a -- the map that you had and had for many  21 years is -- is identical to the one that we've been  22 discussing under the Tab 4 -- 5 of the blue book.  And  23 I'm going to come to that in a minute.  I'm not going  24 to go through all of what you are said to have said at  25 the -- at the all clans feast.  Have you ever had an  26 opportunity of reading that before you -- this before  27 you came here?  2 8       A   No.  29 THE COURT:  Are you asking to mark that map, Mr. Goldie?  30 MR. GOLDIE:  I was going to ask that it be marked as part of the  31 contents of the -- of the trapline file, but it may be  32 that it would be convenient to mark it here as --  33 THE COURT:  All right.  It will be Exhibit —  34 THE REGISTRAR:  Exhibit 268, my lord.  And that's Tab —  35 THE COURT:  5.  36 THE REGISTRAR:  Just the map?  37 THE COURT:  Just the map, yes.  38 (EXHIBIT 268:  Tab 5, Map)  39 MR. GOLDIE:  But from what we've looked at so far of what you  40 are reported to have said, with the exception of your  41 grandfather's name, would you agree that this appears  42 to be a reasonably accurate record of what you said?  43 THE COURT:  I think you're only asking the witness to confirm  44 down to the passage "We didn't come here to fight  45 amongst each other", did you not?  46 MR. GOLDIE:  47 Q   Yes.  You've read the full page, have you? 3816  D. Michell (for plaintiff)  Cross-exam by Mr. Goldie  1 A   Yes.  2 Q   Yes.  And it says what you said?  3 A   That's right.  4 MR. GOLDIE:  Yes.  Thank you.  5 MR. RUSH:  My lord, that is subject to two things he said  6 earlier.  That wasn't what he had said when they were  7 put to him directly.  8 THE COURT:  About the grandfather.  9 MR. RUSH:  And what he said about the description.  10 THE COURT:  Yes.  11 MR. GOLDIE:  Well, I thought I had made that qualification.  12 THE COURT:  Yes.  13 MR. GOLDIE:  Now, Mr. Michell, would you turn to Tab 5, which is  14 the tab that has the map in it, the blue book again?  15 Yes.  Thank you.  16 Now, my lord, this -- apart from the map which has  17 been marked, this contains some documents from the  18 file for line 609TO64.  The registration form in  19 favour of Mr. Michell has already been marked, I'm  20 instructed, as Exhibit 245.  It's Tab 17 of the  21 province's book of documents for Mr. Alfred Mitchell.  22 THE COURT:  The tab number?  23 MR. GOLDIE:  17.  2 4 THE COURT:  Yes.  25 MR. GOLDIE:  But these are additional documents, and the first  26 one is signed by -- purports to be signed by Mr.  27 Alfred -- I can't quite make it out -- Michell or  28 Mitchell.  2 9 THE COURT:  Michell.  30 MR. GOLDIE:  31 Q   But, in any event, Mr. Alfred Mitchell did not -- did  32 not identify that handwriting.  Mr. Alfred Michell was  33 who, your -- a relative of yours?  It's, if I may --  34 do you recognize that handwriting as anybody you know?  35 A   No.  36 Q   All right.  If you keep on going, the next is a return  37 of registered trapline holder dated the 10th of  38 October, 1947, and it -- there's no signature.  It  39 simply says "Returns by mail one mink, six muskrats,  40 100 squirrel", et cetera.  Now, would you turn the  41 page over again?  42 A   I'm not following you.  43 Q   Oh, perhaps Miss Sigurdson could assist you.  44 A   No signature, he says, returns by mail.  45 Q   Now, what you're looking at now has no signature, but  46 it's dated the 10th of October, 1947?  47 A   Yes. 3819  D. Michell (for plaintiff)  Cross-exam by Mr. Goldie  1 Q   All right.  Go one page beyond that, please.  Do you  2 recognize Mr. Alec Tiljoe's name or signature?  3 A   No.  4 Q   You're not familiar with his signature?  5 A   No.  6 Q   All right.  And go on again.  And there's no signature  7 on that one, but it shows animals -- animals trapped  8 on this trapline, and that's dated the 24th of April,  9 '56.  And then the 2nd of October, '56, there's a  10 return marked "No furs caught".  Now, of course,  11 there's no signatures on that, and I assume you're  12 unable to identify any of them?  13 A   No.  14 MR. GOLDIE:  Now, my lord, I'm going to ask that those one, two,  15 three, four, five returns be marked as a single  16 exhibit for identification, and I will make my  17 submission with respect to their admissibility in the  18 manner I've suggested.  19 MR. RUSH:  Again, there's absolutely no basis for them to be  20 entered as any kind of exhibit in the proceedings.  21 They haven't been identified in any way.  22 THE COURT:  I think that's right, Mr. Goldie.  There's no  23 evidentiary basis for them to be marked.  You may be  24 able to advance them in some other way at some other  25 time, but I see no reason to mark them now.  26 MR. GOLDIE:  Well, I -- I want -- my reason for asking that they  27 be marked for identification is that I will be making  28 a submission that they are records kept in the  29 ordinary course of business and, if I fail in that, I  30 shall have to call the custodian, but I intend to have  31 them proven.  32 THE COURT:  Well, I have no doubt of that, but it doesn't seem  33 to me that marking them for identification based on  34 what this witness has said is of any assistance in  35 that submission when you come to make it.  The  36 evidence on these documents is entirely neutral.  37 MR. GOLDIE:  Yes.  I —  38 THE COURT:  It doesn't even identify them particularly.  39 MR. GOLDIE:  It -- I didn't expect them to be of any assistance.  40 THE COURT:  So I see no reason to mark them.  41 MR. GOLDIE:  As your lordship wishes.  42 Now, I want to go to the -- to the next -- under  43 the next blue page, and there are further excerpts  44 from -- now, in putting before you those, I ask with  45 respect to the first one, which is an application for  46 registration of a trapline dated the 13th or so of  47 October, 1927 -- and the application is for a company, 3820  D. Michell (for plaintiff)  Cross-exam by Mr. Goldie  1 Albert Namox, Alec Tiljoe, Tom Michell and James  2 Michell and Peter Pierre.  Now, all of those are  3 related?  4 MR. RUSH:  To each other?  5 MR. GOLDIE:  6 Q   To each other.  7 A   Not all.  8 Q   Tell me who they are.  Starting with Albert Namox,  9 that's your grandfather?  10 A   Yes.  11 Q   And Alec Tiljoe?  12 A   That's my uncle.  13 Q   And Tom Michell?  14 A  My uncle.  15 Q   And James Michell?  16 A  My uncle.  17 Q   What about Peter Pierre?  18 A   He's Gitdumden.  19 Q   He was part of the company, though, or would you  20 accept that, or do you know?  21 A   I didn't know that.  22 Q   All right.  Now, I direct your attention to the upper  23 right-hand corner where there's a latitude and  24 longitude, and I ask you to agree with me that that is  25 the same latitude and longitude as is the registration  26 for your trapline, which is shown in Exhibit 245?  27 Would you agree with that?  2 8 A   The number, the same number.  29 Q   The same numbers.  And is it your understanding that  30 before trapline numbers of the kind that now exists,  31 namely A609T064, that the latitude and longitude was  32 used as a reference point to identify a trapline?  33 A   I don't know.  34 Q   But you have agreed --  35 A   I agree to the numbers there, but latitudes, I don't  36 even know what that means.  37 MR. GOLDIE:  All right.  Then there's a description of the  38 trapline, and the description is a little hard to  39 read, but it starts in the one of 1927 commencing  40 about five miles southeast of lot 6 something, and I  41 find it hard to make out, southeast about 11 miles,  42 northeast about 11 miles, southeast about 9 miles and  43 so on around the -- around the circle, taking in all  44 lanes and creeks within area.  45 THE COURT:  Lakes, I think.  46 MR. GOLDIE:  Beg your pardon?  47 THE COURT:  Lakes, I think. 3821  D. Michell (for plaintiff)  Cross-exam by Mr. Goldie  1 MR. GOLDIE:  2 Q   Lakes, yes.  Now, the definition of the description of  3 this line, namely yours, is commencing at the  4 southeast corner, lot 6771, and goes on.  Now, I  5 couldn't assist you, but perhaps you can assist me.  6 Can you say whether that is a description of  7 approximately the same area?  8 A   It still wouldn't point out where the boundary is.  9 Q   No.  10 A   It doesn't matter how many miles and stuff like that,  11 but --  12 Q   Do you know of any other trapline that your  13 grandfather was the registered holder?  14 A   No.  15 Q   Are you -- would you be prepared to accept the  16 suggestion that the application for registration in  17 the name of Alfred Namox is the same territory of  18 which you're now the present holder?  19 A   I know that.  20 MR. GOLDIE:  Thank you.  21 THE COURT:  With what was the witness comparing this document  22 with these latitude and longitudes?  23 MR. GOLDIE:  Exhibit 245, which is the registration in his name.  2 4 THE COURT:  Yes.  25 MR. GOLDIE:  2 6       Q   Do you know --  27 A   They scribbled some other there.  28 Q   Yes.  I agree it's hard to read.  Mr. Michell, do you  29 have any explanation for why Peter Pierre would be  30 part of the company?  31 A   I don't know.  He could have had Tsayu father or  32 something.  33 MR. GOLDIE:  Right.  Thank you.  Now, the — the — I'm going to  34 direct your attention to two pages over.  Do you  35 recognize the signature of Sarah Tait?  36 MR. RUSH:  Well, there are two signatures there.  37 THE WITNESS:  No.  I didn't know if Sarah could write.  38 MR. GOLDIE:  39 Q   I see.  Well, as Mr. Rush points out, there are two  40 handwritten -- the name Sarah Tait is written in  41 handwriting twice, but the second one spells Sarah a  42 little differently.  And it's your understanding that  43 Sarah might have some difficulty in writing at all, is  44 that —  45 A   I never seen her write.  46 Q   I see.  All right.  Well, this note is dated November  47 11th, 1987 and reads, and I quote:  "This gives 3822  D. Michell (for plaintiff)  Cross-exam by Mr. Goldie  1 Wallace Forsythe permission to trap on my line  2 0609T064 for 10 percent less expenses.  Sarah Tait".  3 And then below that:  "Mr. Forsythe stated to me that  4 Mrs. Tait conferred with the holders -- with other  5 holders, who agreed".  Did you ever agree to having  6 the line trapped by Mr. Forsythe for 10 percent less  7 expenses?  8 A   That's a joke to me.  That's the first time I heard  9 it.  10 Q   First time you've heard it.  Do you know who Wallace  11 Forsythe is?  12 A   Yeah.  I know the guy.  13 Q   He's not a member of your house?  14 A   No.  15 Q   Or a Wet'suwet'en?  16 A   No.  17 Q   He's not a Wet'suwet'en?  18 A   No.  19 Q   Did he trap that line this year?  2 0 A   No.  21 Q   Mrs. Tait, however, is a member of your company?  22 A   Yes.  By permission.  23 Q   And if you go back one page, the -- there is a licence  24 in respect of 609T064, apparently issued in the name  25 of Wallace Forsythe, Box 456, Hazelton, in which he's  26 described as assistant to Sarah Tait.  You never heard  27 of that?  2 8 A   No.  29 Q   But you know Mr. Forsythe?  30 A   Yes.  31 Q   Has he ever assisted Mrs. Tait?  32 A   No.  I don't know nothing about it.  33 Q   So far as you're aware, the only trapping that has  34 been done on the line has been that of Mr. Billy  35 Mitchell?  36 A   That's right.  37 Q   And he did that this year?  38 A   Yes.  39 MR. GOLDIE:  My lord, I'm going to submit that those three — of  40 those three documents, the first be marked as an  41 exhibit.  That is to say the application for  42 registration by Alfred Namox.  43 THE REGISTRAR:  Alfred or Albert?  44 MR. GOLDIE:  Albert.  Yes.  Thank you.  45 THE COURT:  Mr. Rush?  46 MR. RUSH:  Again, I say this is not a document that's been  47 identified in any way. 3823  D. Michell (for plaintiff)  Cross-exam by Mr. Goldie  1  THE  COURT:  2  3  4  MR.  RUSH:  5  THE  COURT:  6  MR.  RUSH:  7  1  8  9  10  11  12  13  THE  COURT:  14  MR.  RUSH:  15  THE  COURT:  16  17  18  1  19  MR.  RUSH:  20  21  THE  COURT:  22  MR.  RUSH:  23  ]  24  THE  COURT:  25  26  27  28  MR.  RUSH:  29  30  31  THE  COURT:  32  33  34  35  THE  regist:  36  THE  COURT:  37  THE  regist:  38  THE  COURT:  39  40  41  MR.  GOLDIE  42  43  44  45  46  THE  COURT:  47  MR.  GOLDIE  Well, I think -- I think it could be marked for  identification, could it not, because of its  comparison with another document that is an exhibit?  Well —  I don't think it can be marked as an exhibit.  No.  I don't either, but I don't see that the  document is in any different category than the ones  I've referred to earlier.  I mean, my friend has  simply said there is a description here which is under  the heading geographical description and I asked the  witness to compare it to a document that he knows and  he says that there is some comparison.  Yes.  That doesn't make this document admissible.  Not as an exhibit, I agree.  But for the -- if  later -- the question later arises with what was  Exhibit 245 being compared, the marking of this  document now as an exhibit will answer that question.  Well, for that very limited purpose I can see no  objection to it, but --  Only for that purpose.  But that I say is -- I mean, I don't think that takes  my friend anywhere.  Well, it doesn't get him over the -- the  admissibility question, which -- which, in my view,  requires further evidence.  That will be your friend's  problem in due course.  And the other -- I take it that the original  should -- of this document should be available for the  record.  I don't think the other two documents have been  raised to the level of even identification, but I  think this application, 1927, may be -- is 269 the  next exhibit?  RAR:  Exhibit 269 for I.D.  269 for identification.  RAR:  It is Tab 5.  It's in Tab 5.  (EXHIBIT 269 FOR IDENTIFICATION:  Tab 5, Application  for registration by Albert Namox)  :  I'm content to leave it at that, but I do draw your  attention to the fact that the witness said that he  was prepared to accept that this was the registration  of the line that he had and the registration was that  of his grandfather.  Well —  :  But I'm content to leave it at that. 3824  D. Michell (for plaintiff)  Cross-exam by Mr. Goldie  1 THE COURT:  I think the matter should be left in the way I've  2 stated for the moment at least.  3 MR. GOLDIE:  It -- the -- the submission with respect to this --  4 the admissibility of this document is going to stand  5 on a little different ground, having regard to the  6 date.  7 THE COURT:  Yes.  8 MR. GOLDIE:  It is technically an ancient document.  9 THE COURT:  Certainly very close to it.  1927.  10 MR. GOLDIE: '30 and '27 is —  11 THE COURT: Well —  12 MR. GOLDIE: We're —  13 THE COURT: I was born before this document, Mr. Goldie.  It's  14 not that ancient.  15 MR. GOLDIE:  The years have treated your lordship better than  16 they have treated the document.  17 MR. GOLDIE:  What is the number again, please?  18 THE REGISTRAR:  It will be 269 for I.D., Tab 5.  19 MR. GOLDIE:  All right.  Now, is it your lordship's ruling that  20 the other documents are not even to be marked for  21 identification?  22 THE COURT: Yes.  23 MR. GOLDIE: All right.  24 THE COURT: Shall we adjourn?  25 MR. GOLDIE: Yes.  2 6 THE COURT:  Thank you.  27 THE REGISTRAR:  Order in court.  Court will adjourn until two.  28  2 9 (PROCEEDINGS ADJOURNED)  30  31 I hereby certify the foregoing to be  32 a true and accurate transcript of the  33 proceedings transcribed to the best  34 of my skill and ability.  35  36  37  38 Kathie Tanaka, Official Reporter  39 UNITED REPORTING SERVICE LTD.  40  41  42  43  44  45  46  47 3825  Submissions by Counsel  1 (PROCEEDINGS RECOMMENCED AFTER LUNCHEON RECESS)  2  3 THE COURT:  Mr. Grant.  4 MR. GRANT:  My Lord, I understood just before I arrived this  5 morning that there was a question by my friends  6 regarding a couple of matters I would like to speak  7 to.  First of all with respect to the investigation  8 regarding -- I think the terminology is underlying  9 documents relating to document 3339 which the court,  10 as I recall, had declared that document was  11 privileged, but the underlying documents may not be,  12 if there are any.  I wish to inform the Court that I  13 am investigating that matter.  I would anticipate  14 being able to provide an answer on the first day of  15 renewed sittings regarding that, on the morning of the  16 29th.  I received a copy of a letter reviving or  17 recalling this matter on February 15th, and I had been  18 down here, and I couldn't -- I can't put all the  19 documents together.  While I say put the documents  20 together, that is to determine whether there are any.  21 I just can't recall.  I did not realize my friend was  22 going to raise it this morning.  23 Then with respect to the question of what my -- what  24 Mr. Goldie referred to yesterday relating to band  25 documents.  The history of this matter, as Mr. Rush  26 indicated, was that this was muted; that is a motion  27 was actually filed returnable on May 11th on this  28 matter.  We were prepared to argue it at that time,  29 and have instructions to so argue it, and given the  30 fact that Mr. Goldie raised this -- we did not know  31 until yesterday afternoon that this was raised.  It's  32 quite unfeasible for us to be instructed by the Band  33 Council, which is the persons who have the authority  34 over these documents.  But once again, that matter  35 will be -- I have received instructions that that  36 matter will be raised next week by them, and I would  37 just ask, for the record, that if there are going to  38 be requests such as this for documents in the custody  39 of third parties, that if some advance notice is  40 given, it will be much easier to deal with this  41 matter.  42 Our friends -- when they adjourned the motion on May  43 11th, there was no indication of when or if it was  44 going to be renewed until yesterday afternoon, as far  45 as I recall, and it's just not feasible to seek  46 instructions from the Band Council.  The Band Council  47 may wish, as Mr. Rush indicated, to obtain independent 3826  Submissions by Counsel  1 counsel on this matter.  They may take the position  2 that this -- that these documents -- that an  3 application should be made in due course under Rule  4 28, as I recall the rule.  But I can't answer that  5 today.  It's not possibile on short notice to get  6 instructions from the Band Council regarding that.  7 Also it is -- the last time when the application was  8 raised, My Lord, it was very, very general, and if  9 there is -- of course this application yesterday was  10 much more specific.  I think there is a great concern  11 that this could open the archival door of up to eight  12 bands at least, and the Band Council wishes to meet on  13 that.  14 Finally, I understand that Mr. Goldie also raised  15 the question of the prospective witnesses and  16 summaries relating to the prospective witnesses.  I  17 anticipate -- I have arranged for the preparation and  18 completion for the delivery regarding the next witness  19 on Monday, and I believe there are two witnesses of  20 which they received notice, and the other one will be  21 coming later on next week.  And those are basically --  22 what we are doing is we are complying with the time  23 table schedules that the Court has ordered.  24 THE COURT:  You expect to be within that schedule?  25 MR. GRANT:  That's the objective that I maintain, to be within  26 that schedule.  So by this time next week my friends  27 will have received both of those, plus the -- I think,  28 as I recall, the genealogies go with those.  2 9 THE COURT:  All right.  Mr. Goldie.  30 MR. GOLDIE:  I gather, from what Mr. Grant has just said, that  31 he doesn't anticipate the witness after Sara Layton  32 coming on until a week Monday -- two weeks' Monday, I  33 mean.  34 THE COURT:  Is that what that —  35 MR. GOLDIE:  We did not anticipate that Sara Layton would take a  36 full week, but that's my friend's concern.  37 With respect to the document request, the  38 application was made on the basis of the witness's  39 evidence that the Tribal Council was -- followed the  40 directions of the hereditary chiefs, and Rule 26(1), I  41 think it is, speaks of production of documents which  42 are in the possession or control.  And I took it from  43 the witness's evidence that this file to which he  44 referred, the file of correspondence or documents  45 relating to the B.C. special grant, would be within  46 the control of the plaintiffs, and I based that on the  47 statements that were being made by the witness.  And 3827  Submissions by Counsel  1 in my submission, My Lord, it's just a simple matter  2 that the plaintiffs be directed to obtain documents  3 which in my submission are under their control.  If  4 the answer is no, they are not under their control,  5 well then we'll deal with that in a separate way.  6 So I would ask for a direction that the plaintiffs  7 produce documents in their control, whether in the  8 custody of the Tribal Council or not, relating to the  9 B.C. special.  10 Questionnaires.  My friend referred to the fact that  11 he hadn't received a letter dated February 15th until  12 recently.  That letter, of course, was a follow-up on  13 a letter dated January 25th, and as I mentioned this  14 morning, Mr. Plant's reference in court to it, which  15 in turn referred to a ruling made on July 31st.  16 However, if it can't be done until a week Monday,  17 sobeit.  18 I have no further submissions.  19 THE COURT:  Thank you.  Ms. Koenigsberg?  20 MS. KOENIGSBERG: I have no submission.  21 THE COURT:  Well, I suppose I have to put the bald question, Mr.  22 Grant, whether you -- whether the Tribal Council  23 accepts the positions described by Mr. Goldie that it  24 takes its instructions from the hereditary chiefs.  25 MR. GRANT:  Firstly, My Lord, this is not over, of course, the  26 Tribal Council, this is Band Council that we are  27 dealing with here.  28 THE COURT:  Yes, I'm sorry, Band Council.  29 MR. GRANT:  And that issue — Mr. Goldie's interpretation of the  30 witness's answer is, of course, one of the things that  31 has to be canvassed with that Band Council.  And it  32 could not be canvassed -- I mean that is -- if the  33 document is --  34 THE COURT:  I understand —  35 MR. GRANT:  -- in the possession of the plaintiffs, then I don't  36 think that there can be -- if the document is in the  37 custody and control of the plaintiffs, that's one  38 issue.   The other issue is if it's in the custody and  39 control of the Band Council, that that's -- and that  40 is -- I mean, Mr. Rush yesterday said at page -- set  41 it out quite clearly.  My problem with it, My Lord, is  42 my friend is asking for documents in the possession of  43 the band.  4 4 THE COURT:  Yes.  45 MR. GRANT:  And actually, My Lord, the Court responded, as he  46 did now, affirmatively, and I don't believe that there  47 was any dispute over that, because the next comment of 3826  Submissions by Counsel  THE  MR.  THE  THE COURT  9  10  11  12 MR  13  14  15  16  17  1  19  20  21  22  2 3 MR.  24 THE  25  26  27  28  29  30  31  32 MR.  33  34  35  36 THE  37 MR.  38  39  40  41  42  4 3 MR.  44  45  46  47 THE  COURT  GRANT  COURT  GRANT:  Mr. Goldie was regarding time tabling.  Mr. Goldie has  now set out what he's interpreting, and the basis on  which he is seeking that is -- he is not seeking  documents in the custody of the third party, but if  these are documents in the custody of the plaintiffs,  he wants production.  Control of.  In control of the plaintiffs, yes.  And it seems to me, if one accepts the proposition  that these documents are in the control of the  plaintiffs, then there isn't anything to argue about.  I agree with that.  Of course what we are dealing  with here is like if the plaintiff happens to have a  little private enterprise, a business, and then that  company has documents, now are those documents then in  control of the plaintiffs, or are they in the control  of the company of the third party.  That one has never troubled me, Mr. Grant, I having  faced that one many times.  But that's not our  problem, and on this basis it's not a legal problem,  it's a practical problem.  You'll have to take  instructions.  Well, yes.  You will have to provide your friends, if you accept  his proposition; if not, you will have to file some  material.  He's relying upon the evidence of the  witnesses, and you will either have to argue the point  on the evidence that we have heard or you will have to  file material, and I suppose that should be done as  soon as possible.  But it can't be done now until at  least a week from next Monday.  Yes.  I mean, for me to even know that position, I  have to seek instructions.  And I have no difficulty  with that matter being one to be dealt with on the  morning of the 29th.  COURT: Is that convenient, Mr. Goldie?  GOLDIE:  Oh, yes, I -- it seems to me it would have been  perfectly clear.  Either my friend says the Band  Council does not take instructions from the hereditary  chiefs -- surely he can say that now.  If he feels he  cannot make that statement, then it will have to wait  until the 29th.  GRANT:  Well, the only problem, My Lord, in order to make  that statement -- I don't want to make a bald  statement to the court.  I must seek instructions from  the Band Council as to what is actually going on.  COURT:  Can we carry on?  GRANT  COURT  GRANT: 3829  D. Michell (for Plaintiffs)  Cross-exam by Mr. Goldie  1 MR. GOLDIE:  2 Q   Now, Mr. Michell, can we have put before you again the  3 blue book.  Now, we had, just to refresh our  4 recollection, under Tab 5 --  5 THE COURT:  Did you say Tab 5?  6 MR. GOLDIE:  No, I think it's tab — yes, it's Tab 5, but it's  7 the last -- third last from the end, and that document  8 has been marked as 269 for Identification.  And I had  9 drawn your attention to the latitude and longitude in  10 the upper right-hand corner, and as pointed out, the  11 meaning of those words was not particularly important  12 to you, but you agreed with me that those were the  13 same in numerals, 54 degrees, 126 degrees, 20 minutes,  14 as found in the application for registration of your  15 line.  16 MR. RUSH:  I just point out, it's a very minor matter, but we  17 are out by .50 minutes.  I'm not sure that that  18 matters.  19 MR. GOLDIE:  You are quite right, on his it's 54 degrees, 5  20 minutes, and on Alfred Namox's it's 54 degrees, which  21 may or may not be significant.  22 MR. RUSH:  It might mean something when we get to north pole.  23 MR. GOLDIE:  All right.  24 Q   If you now go to Tab 6 in your book, please, and the  25 first document under there is an application for  26 registration of a trapline in the name of Alec Tiljoe  27 and Company, and I think you told us that you don't  28 recognize Mr. Tiljoe's signature?  29 A   No, I don't.  30 Q   Nor his wife, Connie Tiljoe?  31 A   No.  32 Q   This time we picked up the 5 degrees, and in the upper  33 right-hand corner it's 54 degrees, 5 minutes and  34 126:10, and that is the same as your trapline, isn't  35 it?  36 A   Seems like they make the changes every time they write  37 this up.  38 Q   Yes, they probably do.  They get more and more  39 information from the trapper.  40 MR. RUSH:  Or elsewhere.  41 MR. GOLDIE:  42 Q   I don't know of any evidence that they get it  43 elsewhere.  But I am now going to show you the  44 original of that and what is the -- what is  45 photographed in the book, and at the top of it you see  46 the words:  "Transferred to Michell, Dan, 14 July '83  47 TAF".  Without going any further or going a bit 3830  1  2  3  4  5  6  7  A  8  Q  9  10  A  11  Q  12  13  A  14  Q  15  16  A  17  Q  18  A  19  Q  20  21  A  22  23  24  25  26  Q  27  28  29  30  31  A  32  Q  33  A  34  Q  35  36  37  38  39  40  41  42  43  44  45  A  46  Q  47  D. Michell (for Plaintiffs)  Cross-exam by Mr. Goldie  further, I then refer you to the description of the  trapline, which is on a piece of paper which is  attached to the form, and is that a description which  becomes a little more intelligible to you as being a  little closer to yours, that's the description on  yours?  I'm showing you Exhibit 245.  You mean these here?  Yes, that's right.  When you you say  "these", you are  pointing to the Tiljoe application.  This one?  Yes.  They both commence at the southeast corner of  lot 6771, don't they?  Would you agree with that?  Say that again.  They both -- the descriptions both commence at the  southeast corner of lot 6771?  6771.  I don't know what that number stands for.  Well, that's a number of a lot.  Yes.  A surveyed lot.  But that's just the point where the  description starts.  Well, I don't know where there is talk about things  like that.  We began with our map -- it's the only way  I can understand it -- lot and number, then, you know,  I get lost.  These numbers can pick up at the boundary  on both side too.  Yes.  But I ask you to agree with me that both  descriptions start with the words, and I quote:  "Commencing at the SE corner, L 6771."  Here.  All right.  Yes.  And then it goes on.  And one says S or south, 1.25  miles to registered or reg. boundary 67/60.  And the  other one goes on, south, one and-a-half miles thence  following north side height of land easterly  approximately 24 miles.  And then yours goes on,  southeast, east and northeast 27 miles along  registered boundary 67/60.  Now, I don't ask you to  tell me whether those are two -- are both the same,  but is there any question but that the same piece of  territory is being described in both applications, to  your mind?  Well the interpretation of it is different.  All right.  Now, let me ask you this.  Do you know of  any other trapline that -- was Mr. Tiljoe your uncle? 3831  1  A  2  Q  3  4  A  5  Q  6  7  8  A  9  Q  10  11  12  A  13  Q  14  15  16  17  A  18  Q  19  A  20  Q  21  A  22  Q  23  A  24  Q  25  A  26  27  Q  28  29  30  31  A  32  Q  33  A  34  Q  35  A  36  Q  37  38  39  A  40  Q  41  A  42  Q  43  A  44  Q  45  46  A  47  Q  D. Michell (for Plaintiffs)  Cross-exam by Mr. Goldie  Yes.  -- that Mr. Tiljoe was registered to?  Do you know of  any other trapline that he was registered to?  No, I do not.  All right.  Now, on the next page you will see the  back of this document, and handwritten in the upper  right-hand corner is "transferred from Alfred Namox".  Yes.  Now, if that is the line that was transferred from  Alfred Namox, it is the line that you now hold; is  that not correct?  That is correct.  Yes.  And then there is pasted to the application form  "members", and Alec Tiljoe is stroked out as dead, Tom  Michell is stroked out as dead, Ema Michell, that  would be your mother, she is still there?  Yes.  And she is on Mr. Tiljoe's line?  Yes.  And George Michell, is that your brother?  Yes.  And he's now dead?  Yes.  Margaret Michell?  What relationship to you is she?  I believe it's -- never heard of that name.  That must  be a misspelling or something.  It's stroked out.  And then there are two names, John  Namox, Patrick Namox, but both have written beside  them a different line, and would that be correct that  they are on a different line than your uncle's?  Yes, I guess they got back on different lines now.  And Alfred Michell, he was on Mr. Tiljoe's line?  Yes.  All right.  And he still is.  On balance then, Mr. -- and when I say on balance, on  the basis of what I showed you, would you agree with  me that --  Alfred Mitchell on there.  Mitchell?  Yes, they got Michell on here.  It's Alfred Mitchell who is on your line?  Yes.  So you think that may be a misspelling of the last  name?  Yes, misspelling.  Would you agree with me, then, that the application 3832  Proceedings  1 for registration, which is under Tab 6 of this blue  2 book in the name of Alec Tiljoe, is the same trapline  3 as your grandfather had and which you now have?  4 A   Yes.  5 MR. GOLDIE:   I would ask that that be marked, My Lord.  6 THE REGISTRAR:  Exhibit 270 —  7 MR. RUSH: I don't think that he identifies the document.  Now,  8 we are in the same situation as we were before with  9 the previous documents, that what occurred here is  10 that comparisons were asked of the witness between  11 that and the exhibit, and to the extent that Your  12 Lordship needs a document in front of you to know what  13 comparisons were made, I can see it being marked as an  14 exhibit for identification, but I don't think it goes  15 any higher than that.  16 MR. GOLDIE:  Well, of course I submit, My Lord, that there is  17 accumulation of details culminating and the witness's  18 acceptance that this document relates to the same  19 trapline that is his and was his Grandfather's.  And  20 if there is to be further evidence, it will have to be  21 that these were produced from public records and are  22 what they purport to be.  23 MR. RUSH: Well, that's precisely it.  That's exactly what we  24 would like to see, that they are what they purport to  25 be.  And each and every one of these documents, of  26 course, includes the note that a sketch of a trapline  27 must accompany this application, and in my submission,  28 if this is what it purports to be, then we should have  29 a sketch.  We don't have a sketch, and we are not  30 treated to these when we see the documents, so what  31 raises in my mind is why is there no sketch.  32 MR. GOLDIE:  My friend can make whatever submission he feels  33 like on that.  The file that we have contains this  34 material, and so far as this particular document is  35 concerned, in my submission it has been proven.  The  36 witness has accepted it, and indeed it's plain on its  37 face what this is all about, and I -- in my submission  38 it's not a matter for further identification, but if  39 it has to be, it has to be.  But unquestionably it has  40 to be marked now.  41 MR. RUSH: Unquestionably it does not have to be marked as an  42 exhibit.  In my submission, My Lord, this document --  43 THE COURT:  Is there any doubt about any of these things?  Do  44 you think there is any real doubt, Mr. Rush, about  45 these documents?  46 MR. RUSH: What there is doubt about, My Lord, is the regularity  47 of the documents which we are asked to accept.  You 3833  Proceedings  1 are asked to accept that there is some regular  2 procedure that is --  3 THE COURT:  I'm being asked to accept —  4 MR. RUSH: — behind these documents.  5 THE COURT:  I am being asked to accept, in view of the  6 interconnection of the documents, that these are  7 probably the documents that recorded whatever rights  8 were granted by trapline registrations by the two  9 predecessors of the witness.  The documents may be  10 quite irregular, in the sense that they were issued  11 without an accompanying sketch and all sorts of other  12 ways, but it's almost requiring the -- or almost  13 requiring the criminal approach to the proof of  14 documents and continuity of possession of titled  15 things that isn't usually found in civil cases.  I  16 don't think that I would be -- I wouldn't have thought  17 that I was being asked to reach any conclusion of  18 regularity, as you put it.  19 MR. RUSH:  There is not a shadow of doubt in my mind that you  20 will be asked that.  And I say, My Lord, recently the  21 gentleman who attested or certified these documents in  22 the affidavit that went along with the alienation map  23 and the alienation support documents for traplines  24 could not say anything about these documents.  Now, I  25 say that the --  2 6 THE COURT: I'm not going to take any more time with this, Mr.  27 Rush.  I'm going to have them marked for  28 identification, and they can be argued further.  I may  2 9           have some more evidence that makes all this academic.  30 I am going to mark them for identification for now,  31 and I will hear counsel further in due course, which  32 may be that I should mark them as exhibits and maybe I  33 shouldn't.  I don't think we should delay ourselves  34 unnecessarily in that regard at this stage.  The  35 document that you are tendering now, Mr. Goldie, is  36 this?  37 MR. GOLDIE:  It's actually one document, My Lord.  38 THE COURT:  These two pages under the section -- under Tab 6.  39 So that will be?  40 THE REGISTRAR:  270 for Identification, Tab 6 in the blue book.  41 Are you filing the original?  42 MR. GOLDIE:  I will if I am requested to.  43 THE COURT:  Do you want the original, Mr. Rush?  44 MR. RUSH:  Well -- if this document goes in as an exhibit, yes,  45 I would like the original filed.  46 THE COURT:  All right.  Do you want to hold it until that time,  47 Mr. Goldie, or do you want to tender it now? 3834  D. Michell (for Plaintiffs)  Cross-exam by Mr. Goldie  1 MR. GOLDIE:  I think I should hold it until then.  2 THE COURT:  Yes.  The date of this document is?  3 MR. GOLDIE:  Is the 2nd of August, 1947, My Lord.  4 THE COURT:  All right.  5 MR. GOLDIE:  It too may be an ancient document.  6 THE COURT:  Getting closer all the time.  7 THE COURT:  All right.  Thank you.  8  9 (EXHIBIT 270 FOR IDENTIFICATION - TAB 6 OF  10 BLUE BOOK - DOCUMENT DATED AUGUST, 1947)  11  12 MR. GOLDIE:  Under the next tab, Tab 6, are extracts from the  13 Province's document 3125.  The first document under  14 that is the -- I'm sorry -- yes, the next set of  15 documents under the same tab following the second blue  16 separating sheet are extracts from the Attorney  17 General of Canada's document 4544 and --  18 MR. RUSH:  What tab is that please?  19 MR. GOLDIE:  Tab 6, the second set of documents.  20 MR. RUSH:  I have — sorry, that was Tab 7.  21 THE COURT:  The first document is a sketch.  22 MR. GOLDIE:  The first document is a sketch.  2 3 THE COURT:  Yes.  24 MR. GOLDIE:  25 Q   For what it's worth, Mr. Michell, that is a sketch of  26 your territory or a part of your territory or of more  27 than your territory, but it has on it Sam Goosley  28 Lake; is that right?  29 A   Yes.  30 Q   And it has also in words that are rather faint,  31 "Tiljoe, Alec and Company", and to the right, "Seymour  32 Tom and Company" and to the bottom left, "Pierre  33 Andrew and Company" or "Andrew Pierre and Company".  34 Firstly, did you understand that Seymour Tom and  35 Company held a trapline in the general area which his  36 name appears on?  37 A   I didn't know that.  38 Q   All right.  Ever hear of Andrew Pierre and Company?  39 A   No.  40 Q   All right.  Let's go onto the next one.  The next is a  41 poor reproduction of a document which I won't go over,  42 and I want to go to the document dated May 2nd, 1964,  43 addressed to Mr. R.G. Cooper.  44 MR. RUSH:  Is that May 26th?  4 5 THE COURT:  May 2nd.  46 MR. GOLDIE:  47 Q   May 2nd.  The order of the documents is in reverse 3835  D. Michell (for Plaintiffs)  Cross-exam by Mr. Goldie  1 chronological order, and the letter is addressed to  2 Mr. R.G. Cooper, and it's date stamped Babine Indian  3 Agency, received May 15th, 1964, and it bears  4 virtually illegible signatures for Alex Tiljoe.  Now,  5 I think you gave some evidence about Mr. Tiljoe  6 seeking compensation for logging.  Do you remember  7 giving that evidence?  8 A   Just couldn't recall it now.  9 Q   I see.  Well, I may be wrong, but I had a note that he  10 stated that -- or you stated that the log had pretty  11 well wiped out --  12 A   Yes, that's what we said.  13 Q   You remember that?  14 A   Yes.  15 Q   And was that what Mr. Tiljoe had told you?  16 A   No, from what I seen.  17 Q   I see.  I thought you connected that with Mr. Tiljoe,  18 but perhaps you didn't.  You saw that when you -- in  19 1964?  20 A  Well, I didn't go there when the logging was going on.  21 After, when you were able to get in there, then you  22 find out how much timber is gone.  23 Q   I see.  Well, Mr. Tiljoe was the holder of the  24 trapline at that time, though, wasn't --  25 A   Yes.  26 Q   Did he ever tell you that he had applied for  27 compensation for the loss of trapping at Goosley Lake?  28 A   No, he didn't.  2 9 Q   And you know nothing about any application he made for  30 compensation?  31 A   No.  32 Q   All right.  Let's skip that.  And I want to ask you --  33 was Mr. Tiljoe enfranchised?  34 A   Yes.  35 Q   Was his son, Russell Tiljoe enfranchised?  36 A   Probably.  37 Q   Do you know the meaning of the expression blue card?  38 A   I heard about it.  39 Q   What does it mean?  40 A  Well, that means you are an Indian, all of a sudden  41 you got a blue card and then you are a white man or  42 something.  43 Q   In other words, it's a sign of enfranchisement?  44 A   Or he's blonde all of a sudden.  45 THE COURT:  I'm sorry?  46 THE WITNESS:  I told him your hair turns blonde all of a sudden.  47 MR. GOLDIE: 3836  D. Michell (for Plaintiffs)  Cross-exam by Mr. Goldie  1 Q   And later often white?  2 A   Yes.  3 Q   Now, I want to -- were you ever added to Mr. Tiljoe's  4 line before he died?  5 A   I don't think so.  I don't believe -- because my  6 mother was already on there and my brother.  7 Q   At any time was the trapline registered or in the name  8 of Mrs. Susie Alfred or Georgie Tait Williams?  9 A   Yes.  10 MR. RUSH:  Do you mean solely?  11 MR. GOLDIE:  12 Q   Were they added to the trapline?  13 A   I believe they would be because they were members.  14 Q   They are nieces of Mr. Tiljoe, aren't they?  15 A   That's right.  16 THE COURT:  What was the second name?  17 MR. GOLDIE:  Georgie, G-e-o-r-g-i-e, Tait, T-a-i-t, Williams.  18 Mrs. Susie Alfred.  19 THE COURT:  Yes.  20 MR. GOLDIE:  21 Q   Do you know a Mr. Patty Isaac?  22 A   Yes.  23 Q   Did you know that he had made some arrangements  24 whereby Mr. Tiljoe could sell his trapline to a gold  25 mining company for $5,000?  2 6 A   No.  27 Q   Did you ever hear of Mr. Patty Isaac's name in  28 connection with the sale of the trapline by your  29 uncle?  30 A   No.  31 Q   Did you ever hear of a proposed sale by your uncle?  32 A   No.  33 Q   Well, I want to show you a letter which is -- I think  34 it's December 3rd, 1958, and it is the third from the  35 end of this bundle of material.  I'm sorry, it's the  36 fourth from the end of this bundle of material, and  37 it's addressed to Mr. Bailey, Indian superintendent,  38 Hazelton B.C., and it reads:  39  40 "Mr. Alex Tiljoe of Houston has gave me a  41 report of his trapper line.  His trapper line  42 has something staked up by the gold mine.  The  43 company promised to pay $5,000.  He want me  44 to get Indian agent to collect money from Mr.  45 Tiljoe.  You are supposed to do it for him.  46 Could you let me know if you're doing  47 something about it.  Hope to hear from you 3837  D. Michell (for Plaintiffs)  Cross-exam by Mr. Goldie  1 real soon.  Answer soon.  Sincerely Mr. Patty  2 Isaac."  3  4 Now, Mr. Michell, I asked you if you were familiar  5 with a sale and you said no.  Did you ever hear any  6 suggestion that Mr. Patty Isaac had arranged for  7 compensation to be paid to Mr. Tiljoe for the gold  8 company staking on the trapline?  9 A   No, I didn't.  10 Q   There was a gold company staked in the Sam Goosley  11 territory, was there not, Placer Mining?  12 A   I don't know.  13 Q   All right.  The next document is a letter dated  14 December 1st, 1958, and it's a typed letter addressed  15 to Mr. Isaac.  It's the third one from the end.  16 THE COURT:  Yes.  17 MR. GOLDIE:  It says:  18  19 "In connection with my trapline I want to  20 let you know that the sale price is $5,000.  21 Now the thing for you to do is to call on the  22 Indian agent for the purpose of discussing  23 the matter with him.  I understand it is okay  24 for a certain payment down, which I need in  25 the amount of a thousand dollars to buy lots  26 and home, then the balance could be paid on  27 an annual basis and paid in full.  The name of  28 the country is Sam Goosley.  Please write to  29 me to let me know what is transpiring in  30 connection with the purchase of the trapline.  31 I want to let you know that Mr. Ken Karen,  32 public accountant, Houston B.C., typed this  33 letter for me.  There is a house in Moricetown  34 which I own and I want to keep the house.  35 Kindest regards.  P.S. I want to let you know  36 that my son Russell Tiljoe has not a blue card  37 and is yet under the Indian basis.  Could he  38 obtain a blue card?  I will let you know."  39  40 You know nothing about any arrangements that's being  41 referred here?  42 A   No.  43 Q   Mr. Tiljoe did live in Houston, did he?  44 A   Yes.  45 Q   And he had a son Russell?  46 A   Yes.  47 Q   And that's the Mr. Tiljoe who was the holder of the 3836  D. Michell (for Plaintiffs)  Cross-exam by Mr. Goldie  1 line before you?  2 A   Yes.  3 MR. GOLDIE:   All right.  My Lord, that bundle of documents  4 which is taken from both -- from the Attorney General  5 of Canada's list of 4544, I would like to have marked  6 for identification, for argument later on the  7 admissibility.  8 THE COURT:  All right.  9 MR. RUSH: I object to that on the basis I have been objecting to  10 various documents that have not reached the level of  11 identification that is necessary here.  These  12 documents haven't in any way been identified by Mr.  13 Michell, and despite the fact that my friend reads at  14 length from the document and suggests things to him, I  15 don't think that that assists in any way in terms of  16 either identification of the documents or the evidence  17 before the Court.  18 MR. GOLDIE:  I'm not suggesting that they have been proven.  I  19 am asking, as a matter of convenience, that they be  20 marked for identification, so that when I make a  21 submission, they are either in or they are out, but if  22 they are in, they become intelligible in relation to  23 this evidence.  If they are out, this evidence means  24 nothing.  Well, I shouldn't say it means nothing.  He  25 has confirmed and this is the basis of a submission --  26 he has confirmed that Mr. Tiljoe is his predecessor in  27 interest.  He confirms details appearing in the  28 correspondence.  It may be that the evidence will  29 complete the rest, or it may be that my submission  30 will convince Your Lordship that it is admissible, but  31 I don't want to take the time of the court in arguing  32 admissibility at this time.  33 MR. RUSH: My Lord, the other observation I would make, of  34 course, is that not all these papers were put to Mr.  35 Michell, and the presumption that my friend is  36 operating under is that his argument will be in  37 relation to everything that is in the documents here.  38 Notwithstanding that, I would say that even on his own  39 submission these documents fall into various levels of  40 categories, and I see that it's no more convenient to  41 have them marked as an exhibit now or to wait until  42 such time as my friend brings forward his arguments as  43 to why he thinks the documents should be admitted.  44 THE COURT:  Well, there is no articular basis for marking the  45 documents.  The only attractive part in marking them  46 would be, as Mr. Goldie just mentioned, that I have  47 notes about some of these documents.  If they later 3839  D. Michell (for Plaintiffs)  Cross-exam by Mr. Goldie  1 become exhibits, I will have them marked as exhibits  2 in the sequence where I can relate them to my notes.  3 That's the only basis upon which it seems to me they  4 could be marked as exhibits for identification.  I  5 must say I am troubled by what's going on here.  It  6 seems we are just spinning our wheels and making no  7 progress because of all these practical problems.  I  8 guess I have to say that the convenience in keeping  9 the information in some consistent form and readily  10 accessible is not a sufficient ground to depart from  11 the rule.  I suppose I must rule that they not be  12 marked even for identification, and I think that's the  13 consistent rule or a consistent decision made, and I  14 think I will have to -- there being an objection, I  15 think I have to give effect to it.  16 MR. GOLDIE:  I don't want to be hampered when I make my  17 submission at the end of the lay witnesses for the  18 plaintiff and somebody saying, well, those weren't  19 marked for identification, you can't put them forward  2 0 now.  21 THE COURT:  I will try and remember, and you will remind me, I'm  22 sure, if I do forget, that no such inference should be  23 drawn.  I am troubled by the way this is going,  24 gentlemen.  If we are going to be following criminal  25 practice in the admissibility, there is going to be  26 much more severe rulings from -- in the future than  27 there has been in the past.  This is beyond what one  28 usually sees in criminal proceedings.  So let's get on  29 with something else.  30 MR. GOLDIE:  Well, I'm going to -- the same situation occurs  31 with respect to the documents under Tab 7, some of  32 which have been already referred to, and I am simply  33 going to not take up Your Lordship's time with any  34 further submissions on that, and I will reserve those  35 to speak to, and we will deal with the matter as a  36 whole.  37 Q   One of the documents that we looked at talks of the  38 trapline being well blazed.  Is that something which  39 is still done today?  Is the trapline blazed?  40 A   It depends on what you mean.  The trail?  41 Q   Yes, where the line is.  42 A   Sometimes the old blaze is noticeable for a long time,  43 when it's not disturbed, and the trail is noticeable  44 when it's not disturbed, but our problem in our  45 area -- I notice that all the trails have disappeared  4 6 by the logging company.  47 Q   Where the area has been logged over? 3840  1  A  2  3  Q  4  5  A  6  7  Q  8  9  10  11  12  13  14  A  15  Q  16  17  A  18  Q  19  20  A  21  Q  22  23  24  A  25  Q  26  27  28  29  30  31  A  32  Q  33  34  A  35  Q  36  37  A  38  39  40  Q  41  42  43  44  45  46  47  A  D. Michell (for Plaintiffs)  Cross-exam by Mr. Goldie  Yes.  And there is no trees left that you can see  blaze on.  But where Mr. Michell was trapping earlier this year,  are there blazed trails?  No.  He just go -- sets his line out and he knows  where to find it again.  All right.  Were any of the transfers that we were  looking at, namely, from Alfred Namox to Alec Tiljoe,  and from Alec Tiljoe to yourself, supported by Band  Council resolutions?  I am talking about the trapline,  and there is a transfer in 1947 to Mr. Tiljoe.  There  wasn't any Band Council resolution at that time, was  there?  I didn't see any.  But when it was transfered to you after Mr. Tiljoe's  death, was there a Band Council resolution?  Yes.  And do we -- is there a copy of that that you have  given to your counsel, or do you have one?  Don't have it with me here.  All right.  Thank you.  Now, I asked you about Sara  Tait this morning, and am I correct in my  understanding that she's not a member of your house?  That's right.  I want to ask you some questions about the evidence  that you gave to Mr. -- in response to Mr. Rush's  questions about Exhibit 256, which is your letter to  the District Manager, B.C. Forest Service of April  6th, 1984, which relates to a timber sale application.  Do you remember giving that evidence?  Yes.  In fact the Band Council now has two timber sale  licenses, does it not?  Just one.  Well, isn't one for opportunity wood and the other is  a quota?  Exactly how it works, I don't know, but we know that  sale we got, you know, did a logging plan each time,  each block that you going to work on.  Well, I want to track this through because I -- now, I  think you have already told His Lordship that the  sawmill and the logging and the hauling are a very  important part of the activity of the band.  Am I  correct in my understanding of the evidence you gave  about the sawmill, it's an important part of the  band's activities?  Yes, the whole operation is. 3841  1  Q  2  3  4  5  6  7  A  8  Q  9  A  10  Q  11  12  13  14  A  15  Q  16  17  18  A  19  Q  20  21  A  22  Q  23  24  25  A  26  Q  27  28  A  29  Q  30  31  32  33  34  35  36  37  38  39  A  40  41  Q  42  43  A  44  Q  45  A  46  Q  47  A  D. Michell (for Plaintiffs)  Cross-exam by Mr. Goldie  The whole operation.  That's what I want to come to.  Now, my understanding, and I have placed before you a  black binder containing a number of documents relating  to timber supply license A16816 and timber license  A17916, and let's go back to a period that -- prior to  June of 1982.  What tab are you under?  I beg your pardon?  What tab are you under?  I didn't come to that quite yet.  I just want to get  to the background of this a bit.  Pre 1982 the band  had a sawmill which was cutting -- sawing wood from IR  18; is that right?  Yes.  And was it not getting wood from timber sales, small  timber sales of Crown timber outside IR 18 at the  time?  Yes.  Yes.  And the sawmill manager at the time was a Mr.  Fricke, F-r-i-c-k-e?  Ron Fricke.  Yes.  And did not Mr. Fricke and you as the chief  councillor go to the Forest Service in Smithers and  say we would like a more permanent timber supply?  Yes.  And the district manager at that time was a Mr.  Wenger?  Wenger.  W-e-n-g-e-r.  Now, as a result of that, didn't the  Forest Service put up for auction a timber supply  license or a timber sale license which was numbered  A16816?  And if you would look under Tab 1, notice to  intending applicants for a timber sale license major,  and the auction was to held on August the 6th, 1982.  Wasn't that auction of that timber sale license the  result of the representations that you and Mr. Fricke  made to the Forest Service and in particular Mr.  Wenger?  Yes, that particular timber sale that you are talking  about, they wouldn't give it to us in a small sale.  No -- let me follow this through.  You do remember  this being put up for auction?  Yes.  And the band bid on it?  That's right.  And the band was successful?  Yes. 3842  D. Michell (for Plaintiffs)  Cross-exam by Mr. Goldie  1 Q   All right.  But that timber sale was designed for the  2 band, wasn't it?  And if you're having trouble  3 following me, I am going to suggest to you that it was  4 particularly designed for the band, firstly, in the  5 allowable annual cut of 15,000 cubic meters.  That was  6 the exact capacity of your mill at that time, wasn't  7 it, or do you recall?  8 THE COURT: You are asking the witness if this is what he  9 represented to the band -- asked the Forest Service to  10 offer for sale?  11 MR. GOLDIE:  Yes.  12 THE WITNESS: I just couldn't remember.  I couldn't remember if  13 this was two applications or one.  14 MR. GOLDIE:  15 Q   I am going to suggest to you there were two, and we'll  16 come to the second in a minute.  But the -- if you  17 will look under Tab 2 there -- I'm sorry, we'll  18 continue under Tab 1.  Go to the end of the notice.  19 Could you assist the witness please.  I want to go to  20 the letter of October 4.  Now, on October the 4th did  21 you not receive a letter of that date which sent you a  22 copy of your timber sale license, which is A16816, and  23 the license itself is found immediately following?  24 A   Yes, that's when Fricke was the manager.  He look  25 after all of these.  26 Q   Right.  And in fact the band was the only bidder for  27 this license, wasn't it?  28 A   No, there was a representative from PIR.  29 Q   But he didn't bid on the license, did he?  30 A   I went in there with a guy by the name of Steve Whipp  31 with me, and we told him that he could not go to our  32 property in order to get to that property.  33 Q   Well, that was one of the reasons why this timber  34 sale —  35 A   Yes.  And decided, you know, like this is one of the  36 area where most of the timber were rotten.  37 Q   Yes.  But Mr. Michell, that was one of the things  38 which made this sale tailor-made for the band, that  39 nobody could get access to this wood except through  40 the reserve?  41 A   No, he would have got it if we didn't tell him that,  42 you know.  43 Q   Well, you told him -- I'm sorry?  44 A  At the same time he know that they were in line, and  45 we heard that they are applying for that timber.  Even  46 if we didn't do anything, they would have gone ahead  47 with that anyway. 3843  1  Q  2  A  3  4  5  6  7  8  9  10  11  12  13  Q  14  15  A  16  17  Q  18  19  A  20  Q  D. Michell (for Plaintiffs)  Cross-exam by Mr. Goldie  But they didn't bid on it, did they?  Because before that -- before that big company start  taking the timbers, there was a small mill right on  that -- the same size as what we had at the time.  It  was situated just west of the creek there, Corya  Creek, which was run by Bill Morris, and he had about  30 to 40 people working for him.  So when the big  company came into the area, he somehow made a deal  with him and took his timber sale or whatever it was  at the time, and they took it all from him and he set  this mill down, compensated him, and then the company  took all that area, so nobody else can get in.  Well, I'll come to that.  But my question to you was  you were the only bidder on this license?  Yes, that's right.  We were the only successful  bidder.  And this is the license that you were awarded, A16816,  and it's the license that you hold today, isn't it?  Probably.  I'm not sure.  All right.  If you go under Tab 2 --  21 THE COURT:  Mr. Goldie, I have to make some arrangements for  22 Monday.  Is this a convenient time adjourn?  23 MR. GOLDIE:  Yes.  24 THE COURT:  Yes.  All right.  25 THE REGISTRAR:  Order in court.  26  27 (PROCEEDINGS ADJOURNED FOR A SHORT RECESS)  28  29 I HEREBY CERTIFY THE FOREGOING TO  3 0 BE A TRUE AND ACCURATE TRANSCRIPT  31 OF THE PROCEEDINGS HEREIN TO THE  32 BEST OF MY SKILL AND ABILITY.  33  34  35 LORI OXLEY  36 OFFICIAL REPORTER  37 UNITED REPORTING SERVICE LTD.  38  39  40  41  42  43  44  45  46  47 3844  D. Michell (for plaintiff)  Cross-exam by Mr. Goldie  1 (PROCEEDINGS RESUMED PURSUANT TO A SHORT ADJOURNMENT)  2 THE REGISTRAR:  Order in court.  3 THE COURT:  Mr. Goldie?  4 MR. GOLDIE:  5 Q   My lord, I want to refer the witness to the document  6 under Tab 2, which is an extract from the Interior  7 News dated Wednesday, August the 11th, 1982 and the  8 story is headed "Two Mills Secure Timber".  9 And, Mr. Michell, you remember that at the same  10 timber sale there were two -- two licences put up for  11 bid and one was bid on by Pine Creek Sawmills, Mr. --  12 A   John Veerbeek.  13 Q   Right.  And the other was yours?  14 A   Yes.  15 Q   Right.  And the newspaper story said -- and I'm  16 referring to the third column, the paragraph beginning  17 "Meanwhile, Ron Fricke".  Do you see that?  18 A   Yes.  19 Q   "Ron Fricke, manager of the Moricetown Band Council  20 Mill, says the 15,000-cubic-metre sale the mill  21 purchased last Friday is the exact amount the mill can  22 process."  And that's correct, is it not, at that  2 3 time?  24 A   For that timber.  25 Q   Exactly.  26 A   It's a different licence.  27 Q   Exactly.  And then he goes on to say:  "This will  28 enable us to have continuity of supply.  Now we can  29 operate for 12 months of the year."  Well, how you  30 operate we'll come to in a few minutes.  Then he goes  31 on to say -- I'm sorry.  The story goes on to say:  32 "The mills were the only bidders for the 15,000 and  33 25,000 cubic metres".  And that's so, is it not?  34 There were the only two bidders?  35 A   I don't know.  36 Q   I see.  But you were the only bidder on your line?  37 A   Yeah.  Well, that time Ron Fricke did that for us.  38 Q   You attended the auction, did you not?  39 A   No.  4 0 Q   Didn't you?  I thought you had told me that you had  41 spoken to one of the representatives --  42 A   It was a different case.  It was a different case.  43 This is earlier on.  44 Q   It's the other licence that you spoke to him about?  45 A   Yes.  46 Q   Well, we'll come to that.  And then it goes on to talk  47 about the terms of the sale.  So the -- this licence 3845  D. Michell (for plaintiff)  Cross-exam by Mr. Goldie  1 which was put up for bid in 1982 and in which you bid  2 on was the result of negotiations between the band  3 council, represented by Mr. Fricke --  4 A   Yes.  5 Q   And the forest service?  6 A  Well, he's a forest technician, so he handled the job  7 for the council.  8 Q   For the council.  But you were the chief counsellor at  9 the time?  10 A   Yes.  11 Q   And you were aware of everything that was going on, is  12 that not so?  13 A   Yes.  Like, that's what the people want, so that's  14 what the manager carried out.  15 Q   Now, going back to Tab 2, the story states in the  16 fourth column, last paragraph:  "Neither operation  17 will be required to carry out any silvacultural work  18 for the first five years.  The forest service will  19 take on all silviculture work for that period, after  20 which it will become the responsibility of the quota  21 holder".  And that's so, is it not, or was so at the  22 time?  23 A   I guess so.  I didn't really -- like, I didn't run  24 that operation.  25 MR. GOLDIE:  All right.  My lord, I ask that the — the notice  26 to intending applicants under Tab 1, the letter of  27 October 4th, 1982 and the enclosed timber sale licence  28 A-16816 of August the 6th, 1982 be marked as exhibits.  2 9 THE COURT:  Mr. Rush?  30 MR. RUSH:  We don't take any position.  31 THE COURT:  Yes.  All right.  The next number, Madam Registrar?  32 THE REGISTRAR:  271.  33 THE COURT:  All right.  The notice will be 271.  34 (EXHIBIT 271:  Tab 1, Notice to intending applicants)  35 THE COURT:  The letter is dated?  36 THE REGISTRAR:  October 4th, '82.  37 THE COURT:  Yes.  That will be 272.  38 (EXHIBIT 272:  Tab 1, Letter dated October 4, 1982)  39 THE COURT:  And the licence itself will be Exhibit 273.  40 THE REGISTRAR:  273.  41 (EXHIBIT 273:  Tab 1, Timber sale licence A-16816  42 dated August 6, 1982)  43 MR. GOLDIE:  And I think the — I might ask, my lord, if the  44 newspaper article which I've just referred the witness  45 to be marked as Exhibit 274.  4 6 THE COURT:  Mr. Rush?  47 MR. RUSH:  Well, the witness has made reference to and confirmed 3846  D. Michell (for plaintiff)  Cross-exam by Mr. Goldie  1 the statement.  2 THE COURT:  Yes.  All right.  The article, 274.  3 THE REGISTRAR:  274.  4 (EXHIBIT 274:  Tab 2, Newspaper article)  5 MR. GOLDIE:  6 Q   Now, the result of that licence was to give you an  7 annual allowable cut of 15,000 cubic metres a year for  8 a period of better than 10 years; is that your  9 understanding of the quota?  10 A   Really, I'm not too keen on that.  If I was, I could  11 have been the manager.  12 Q   Yes.  The -- but did you not understand that that gave  13 you an assured supply of logs for the mill for the  14 period of the licence, which was 10 years and  15 renewable?  Wasn't that your understanding, that you  16 had an assured supply?  It was your timber?  17 A   I always figured it was just a small sale.  18 Q   Well, you had small sales before that, but this one  19 was a major licence?  20 A   Oh, yeah.  This is the one that they're logging on  21 now.  22 Q   Right.  23 A   Okay.  24 Q   Yes.  It's the one that provides the mill with its  25 major saw log supply?  26 A   Yes.  27 MR. GOLDIE:  Right.  Now, in order to do that -- when I say in  28 order to do that, I mean in order to bring those logs  29 to the mill, you had to file a cutting plan, and the  30 first cutting plan which was filed was with respect to  31 a small timber sale, which you already had and which  32 was incorporated in the new licence.  Does any of that  33 ring a bell?  34 MR. RUSH:  Well, my lord, maybe my friend could just break up  35 his question.  It contains a number of --  36 MR. GOLDIE:  I was —  37 MR. RUSH:  — aspects to it.  38 MR. GOLDIE:  I was trying to summarize it, but --  39 THE COURT:  Yes.  All right.  40 MR. GOLDIE:  41 Q   The scheme of the timber sale licence that you got was  42 that it covered a very large area and you had to file  43 cutting plans which dealt with specific areas, and you  44 had to say how you were going to log it, what roads  45 you were going to put in and if that was approved, you  46 got a cutting permit, and then you went on like that  47 from year to year to year.  Isn't that what you've 3847  D. Michell (for plaintiff)  Cross-exam by Mr. Goldie  1 been doing?  2 A  Well, like I just told you, I didn't know exactly how  3 they go about these logging bids.  We have the manager  4 that's doing it, sawmill manager.  5 Q   Right.  6 A  And we have one of our loggers that's helping along,  7 which is Warner William.  I'm not really involved in  8 this.  9 Q   The -- under Tab 3 you'll find a document prepared by  10 the Industrial Forestry Service.  Now, at the time --  11 yes.  At the time those were the forest consultants  12 that the band had retained; is that right?  13 A   Ron Fricke.  14 Q   This document is signed by Fricke as approved by the  15 Moricetown Carrier Band, R.H. Fricke, but it was  16 prepared by Industrial Forestry Service Limited, a Mr.  17 Girvan.  Do you remember him?  18 A   No.  I thought he did all this by himself because he  19 was the forester himself.  20 Q   I see.  Well, he had some assistance.  21 A   I didn't know that.  22 Q   And the -- that document is the -- the way in which  23 the band was going to log off a small timber sale near  24 Graphite Creek.  Do you remember a timber sale by  25 Graphite Creek, up near Graphite Creek?  26 A   To tell you the truth, I don't know where Graphite  27 Creek is located.  28 Q   Well, see if I can -- if I can be of any greater  29 assistance to you.  The -- as you go on the road  30 towards Hazelton from Moricetown, the Bulkley River,  31 of course, is on your right?  32 A   Yes.  33 Q   And if you go up that road, there is a place where you  34 log, which is off the Indian Reserve and near the  35 Evelyn Farmer's Institute.  Do you remember that,  36 People who held a grazing licence up there?  37 A   I didn't know about that.  38 Q   I see.  All right.  Well, Mr. Michell, you'd accept  39 that the document signed by Mr. Fricke under Tab 3 is  40 something that was filed with the forestry service in  41 connection with the sawmill?  42 A   Yes.  43 MR. GOLDIE:  All right.  I'm going to ask that that be marked,  4 4 my lord.  4 5 THE COURT:  275.  46 THE REGISTRAR:  Exhibit 275.  47 3848  D. Michell (for plaintiff)  Cross-exam by Mr. Goldie  1 (EXHIBIT 275:  Tab 3, Document prepared by  2 Industrial Forestry Service)  3 THE REGISTRAR:  Tab 3.  4 MR. GOLDIE:  Now, under Tab 4 is — is a document headed "Timber  5 Sale Licence Cutting Permit", and it's called timber  6 sale licence A-16186, cutting permit 002, licensee  7 Moricetown Band Council.  And I suggest to you that  8 that was the actual document that gave the band  9 council the right to go on a particular part of their  10 timber sale and cut.  Do you remember that kind of a  11 sequence?  12 THE COURT:  Is there any doubt about this?  13 MR. GOLDIE:  Not that I'm aware of, my lord.  If — if there is,  14 I'll go through it, but otherwise this was issued to  15 the band council and to my understanding it is the  16 procedure that is being followed today.  17 MR. RUSH:  Well, my lord, there's -- I don't think we can take  18 issue with the fact it was issued to the band council.  19 My friend is asking Mr. Michell his understanding of  20 the document.  If my friend is simply seeking to put  21 the document in, I can agree that it was issued to the  22 band council.  I'm not going to take issue with it  23 going in as an exhibit.  24 THE COURT:  All right.  Let's put in the — the document under  25 Tab 4 as Exhibit —  26 THE REGISTRAR:  That will be Exhibit 276.  Is there a date on  27 that?  28 (EXHIBIT 276:  Tab 4, Timber sale licence cutting  29 permit dated November 1, 1982)  30 MR. GOLDIE:  Yes.  It's timber sale licence cutting permit and  31 it's dated November 1st, 1982, and it consists of a  32 licence with attachments.  All is contained under Tab  33 4.  34 MR. RUSH:  Is that sequential number 37 to 50?  35 MR. GOLDIE:  36 Q   Yes.  That's correct, those are.  Now, under Tab 5  37 there's a letter to the Moricetown Band Council dated  38 October 25th, 1982.  And it states that "The — that  39 the licencor", that is to say the B.C. Forest Service,  40 "will be responsible for the re-establishment of a  41 crop of commercial tree species through tree planting  42 or natural regeneration for the first five-year period  43 of the licence".  Was it your understanding that the  44 band council at the end of the first five years of the  45 licence would then take on the responsibilities of  46 reforestation?  47 A   1982. 3849  D. Michell (for plaintiff)  Cross-exam by Mr. Goldie  1 Q   '82.  In other words, beginning this year didn't the  2 band take over the reforestation responsibility, or --  3 A   I just didn't know what's going on after that.  4 Q   You weren't aware?  5 A   I'm not really involved.  6 MR. GOLDIE:  All right.  There are three documents under that,  7 my lord.  The first one is a letter of October 25th,  8 1982 and I ask that that be marked as Exhibit 277.  9 THE COURT:  Well, it seems to me that I can only have it marked  10 if it's by consent.  11 MR. GOLDIE:  Well, I understood my friend is not taking issue  12 with this.  13 MR. RUSH:  That last one I'm not taking issue.  14 THE COURT:  I'm sorry.  15 MR. RUSH:  I'm not taking issue with this either.  16 THE COURT:  Yes.  Thank you.  Tab 5 will be Exhibit 277.  17 (EXHIBIT 277:  Tab 5, Letter dated October 25,  18 1982  19 THE REGISTRAR:  277.  That is all the documents?  20 MR. GOLDIE:  I'm just coming to the next one.  This is an  21 addendum to the notice of attending applicants, and it  22 is only under this tab because it deals with this  23 question of reforestation.  It is -- it is really part  24 of the original -- an addendum to the notice of  25 intended sale.  26 THE COURT:  Part of Exhibit 271?  27 MR. GOLDIE:  Yes.  2 8 THE COURT:  All right.  29 MR. RUSH:  It's part of 271?  30 MR. GOLDIE:  Yes.  The notice of intended sale.  It's an  31 addendum to the notice.  32 THE COURT:  Yes.  33 MR. GOLDIE:  34 Q   The next document I need not deal with at this time.  35 It simply shows the area of interest for the first  36 five years of the timber sale A-16816.  And do you  37 have that in front of you?  It's the last document  38 under Tab 5.  And that -- in the heavy black line it  39 was the area of interest, which is another way of  40 saying that that -- within that area it was  41 anticipated that 15,000 cubic metres a year would be  42 taken out for the first five years.  And that area is  43 all west of Moricetown with Corya Creek in the middle  44 and running up to -- well, Bolder Creek, I guess it  45 is.  You understand those are all within your timber  46 sale?  47 A   Yes. 3850  D. Michell (for plaintiff)  Cross-exam by Mr. Goldie  1 MR. GOLDIE:  I ask that that be marked as Exhibit 278.  2 THE REGISTRAR:  Exhibit 278, Tab 5.  3 (EXHIBIT 278:  Tab 5, Document showing area of  4 interest)  5 MR. GOLDIE:  Now, under Tab 6 there is another application.  6 There's a letter dated January 27th, 1983 with a  7 management and working plan for a five-year period,  8 again submitted by Mr. Fricke, and it's got some  9 photographs in it.  The -- and this is the old mill,  10 is it not?  11 THE COURT:  Any problem, Mr. Rush?  12 MR. RUSH:  I simply -- I'm sorry.  I'm not quite sure where my  13 friend is on the questioning.  You put the photographs  14 to him?  15 MR. GOLDIE:  16 Q   No.  I put to him that there is a management and  17 working plan for the five-year period commencing  18 January 1st, 1983 on the timber sale prepared by  19 Industrial Forestry Service Limited and submitted by  20 Mr. Fricke, and it contains photographs, one page of  21 photographs as showing -- and I'm asking the witness  22 is that the old mill?  23 A   Yes.  24 Q   It's a very much smaller mill than what is there  25 today?  26 A   Yes.  27 Q   Now, over the next page headed "Management and Working  28 Plan", para 1.0:  "The primary management goal is to  29 provide permanent jobs for the Moricetown people by  30 ensuring a continuity of timber harvesting".  And  31 that's -- that was your aim with respect to providing  32 employment for your people in the -- in the -- in the  33 band; is that right?  34 A   That's right.  35 Q   And this was submitted to the forest service?  And  36 under that -- with it was submitted a -- a map.  Now,  37 outlined in original are trapline areas, but those --  38 that original line covers an interrupted line, which  39 is the -- is the area of the timber sale licence.  And  40 is it your understanding that -- or will you confirm  41 for me, please, that Jones -- or Sam, Jones and  42 Company or Jones, Sam and Company was the holder of a  43 registered trapline in the -- in the areas shown on  44 that map?  45 A   This —  46 Q   Yes.  47 A  What are you asking? 3851  D. Michell (for plaintiff)  Cross-exam by Mr. Goldie  1 Q   Yes.  Just -- the area is delineated with that orange  2 line that cuts across the timber sale about a third of  3 the way down, and the top part is -- is that not a  4 trapline area of Jones, Sam and Company?  5 A   I didn't know that till just now.  6 Q   What about below there, below meaning where the  7 Mitchell, Brazil and Company are?  Have you heard of  8 those people?  9 A   Yes.  10 Q   And will you confirm that they're the holders of a  11 trapline?  12 A   Yes.  13 Q   And there are other areas of users, and one is a  14 grazing permit and that's outlined in pink, and one  15 grazing permit is granted to a Mr. Reitsma.  Is he a  16 farmer in that area?  17 A   He used to be, but he sold out.  18 Q   Yes.  This is 1983, isn't it?  19 A   Yeah.  2 0 Q   And then over in the right there's the Evelyn Farmer's  21 Institute, and I think you were unable to recall that  22 name?  23 A   I don't know them, but --  24 Q   All right.  What about a grazing lease area in the  25 name of Mr. Quadros?  Do you recall his name?  26 A   Yes.  27 MR. GOLDIE:  Right.  Now, the map also indicates the mill site,  28 which is on the right-hand side, my lord.  29 THE COURT:  Yes.  I see it.  30 MR. GOLDIE:  31 Q   And then there are some double-dashed lines, and they  32 are roads, are they -- logging roads, are they not, to  33 previous shows, one of them being an Indian Reserve  34 18, Babine Indian Reserve 18?  Well, if you don't  35 recognize that -- but would you accept that as -- as  36 the map that was filed with the B.C. Forest Service at  37 the time you filed your proposed five-year plan, or  38 Mr. Fricke on your behalf filed a proposed five-year  39 plan?  40 A   Yes.  41 MR. GOLDIE:  Thank you.  My lord, I ask that the letter of  42 January 27th, 1983 which covers the transmission of  43 the Moricetown Carrier Band management and working  44 plan, which has under the front of it January, 1983,  45 and the attached map, which is Appendix 5 in the  46 pocket, be all marked as the next exhibit.  47 THE COURT:  That's all Tab 6. 3852  D. Michell (for plaintiff)  Cross-exam by Mr. Goldie  1 MR. GOLDIE:  Yes.  2 THE COURT:  Mr. Rush?  3 MR. RUSH:  I have nothing.  4 THE COURT:  All right.  Tab 6 will be Exhibit —  5 THE REGISTRAR:  279.  6 (EXHIBIT 279:  Tab 6, Letter dated January 27, 1983  7 and attachments)  8 MR. GOLDIE:  9 Q   Now, under Tab 7 is a letter to the Ministry of  10 Forests from the Fish and Wildlife Branch of the  11 Province of British Columbia saying that "Can foresee  12 no problem with the above timber sale development  13 plan.  The registered trapline owners are as follows:  14 Bazil Michell and Company, Moricetown".  Is Bazil  15 Michell a member of the Moricetown band?  16 A   Yes.  17 Q   And do you recall what house he is?  18 A   Laksilyu.  19 MR. GOLDIE:  Laksilyu.  Thank you.  I — if my friend has any  20 concern about that going in, I'm prepared to -- to  21 leave it for identification, but it's all part of this  22 sequence, in my submission.  23 MR. RUSH:  Just to note -- I don't take objection to it, but I  24 just want to make it -- what's obvious is it's between  25 two apparent officials of the Ministry of Environment.  26 MR. GOLDIE:  February 25th, 1983.  27 MR. RUSH:  What's the exhibit number, please?  2 8 THE COURT:  It will be 280.  29 THE REGISTRAR:  Tab 7.  30 (EXHIBIT 280:  Tab 7, Letter dated February 25, 1983)  31 MR. GOLDIE:  32 Q   Now, looking at Tab 8 is a letter from Mr. Steve Whipp  33 to the district manager, May 18th, 1983.  And I think  34 you identified Mr. Whipp as the band manager at the  35 time?  36 A   Yes.  37 Q   And it's addressed to Mr. Wenger.  And do you recall  38 that the -- the band was having some cash difficulties  39 with the sawmill and it sought permission to sell logs  40 to B.C. Timber as well as -- yes.  A hundred truck  41 loads of logs to B.C. Timber as a means of getting  42 some early cash.  Do you have a recollection of that?  43 A   B.C. Timber.  Yes.  I remember we're running short of  44 money to build it anyway.  45 Q   Yes.  And one of the things you did was sell some of  46 the logs that you have?  47 A   Yes.  I believe they did. 3853  1  Q  2  3  4  5  A  6  Q  7  8  A  9  10  Q  11  A  12  13  14  15  Q  16  17  A  18  Q  19  A  20  Q  21  A  22  Q  23  A  24  Q  25  26  27  28  29  A  30  Q  31  A  32  33  34  Q  35  36  A  37  Q  38  39  40  A  41  Q  42  43  A  44  45  46  Q  47  D. Michell (for plaintiff)  Cross-exam by Mr. Goldie  And this was -- this was an important and difficult  time because you were endeavouring to expand the  sawmill and you were having some problems in financing  it?  Yes.  And, in fact, the mill had to shut down for a while,  did it not?  Well, it's a long story, you know.  You don't want me  to tell you that story.  Maybe we can --  First the manager explained to us that it was doing  good and later on we find out that he was running in  the hole all the time.  He didn't pay even what he's  supposed to get too and he was the manager.  And you got a -- you asked him to go elsewhere and you  got another manager?  No.  He went and quit on us.  I see.  And —  But there was a parting of the ways?  It may be --  There's been a lot of problem after that.  I'm sorry?  There's been a lot of problem after that.  It may be that we can draw all these things together.  If you'd look under Tab 9, which are the minutes of a  meeting.  And the meeting is November the 27th, 1985.  And do you remember being at a meeting with Mr.  Kontic?  Who's Mr. Kontic?  He's the Forestry of Indian affairs.  A forestry advisor?  I don't know which is his position, but he had  something to do with the forestry, working for the  Indian Affairs.  And there was yourself and Mr. Warner Williams, the  two of you for the band?  Yes.  And, actually, you were the only two from the band,  and a Mr. Philpott, who was retained by the band as a  forestry consultant; is that right?  Yes.  And then the others were -- there were all people from  the B.C. Forestry Service?  I just couldn't recall the meeting, but we had quite a  few meetings.  I didn't know which time it was and I  couldn't remember these people.  Yes.  But here was the situation, wasn't it, in  November of 1985, that you had a new mill under 3854  1  2  3  4  5  6  7  A  8  Q  9  A  10  11  Q  12  13  14  A  15  Q  16  17  18  19  A  20  21  22  Q  23  24  A  25  Q  26  A  27  Q  28  29  30  31  A  32  Q  33  34  35  36  A  37  Q  38  A  39  40  Q  41  42  A  43  Q  44  A  45  Q  46  47  D. Michell (for plaintiff)  Cross-exam by Mr. Goldie  construction.  You were having difficulty getting your  financing, and you were saying to the forest service  that you would be starting up in June of 1986, and  that you would have an increased capacity, and that  you'd have a chipper, and that you'd be ready to  utilize poor quality lumber -- timber, I should say?  This is one of those meetings.  Yes.  And the mill was shut down at the time?  Yeah.  The old one was shut down and the new one was  being built.  And this was a -- at a time when you had a second  licence, what is called an opportunity licence for  cutting decadent and over-mature timber?  Yes.  And one of the difficulties that you were facing,  because the mill was shut down, was that you weren't  cutting any of the timber that you were supposed to be  cutting?  Yes.  Besides that, you know, there was — whole yard  full of pulpwood was accumulated when Fricke was  managing the sawmill, and that was not sold.  Well, it was no good logging pulpwood, which is rotten  logs?  No market for that at the time too.  You didn't have a chipper, did you?  No.  All right.  But in 1985 you were saying to the  forestry service we're going to be going on June the  1st, '86 and we're going to have a chipper and we're  going to have increased capacity?  Yes.  Now, this was important because if the forestry  service had required you to cut according to the  letter of your licence and you hadn't cut, they could  cancel the licences, couldn't they?  Yes.  But you persuaded them not to do that?  Well, I guess the start-up time -- we didn't start --  we weren't ready at the time.  Well, you told them you're having trouble getting your  money?  Yes.  And this was a difficulty?  Yes.  And as a result of all of these meetings, you were  able to persuade the forest service not to cancel  those licences? 3855  D. Michell (for plaintiff)  Cross-exam by Mr. Goldie  1 A   Yes.  2 MR. GOLDIE:  My lord, I'd like the letter of Mr. Whipp under Tab  3 8 to be marked as the next exhibit.  4 THE REGISTRAR:  Exhibit 281.  5 (EXHIBIT 281:  Tab 8, Letter dated May 18, 1983)  6 MR. GOLDIE:  And the minutes of the meeting of November 27th,  7 1985 under Tab 9 Exhibit 282.  8 THE REGISTRAR:  282.  9 MR. RUSH:  I just have a little bit of problem with the minutes,  10 my lord.  Obviously this is a document that's internal  11 to the Ministry of Forests, and while the evidence is  12 that Mr. Michell was present during the meeting, or at  13 least he -- it's indicated that he was present by  14 these minutes, it does not -- what is taken here as  15 the minutes of the discussion are obviously the views  16 of Mr. Smith, and they reflect whatever presumably was  17 going on in his mind, and it's unclear whether or not  18 these minutes were distributed, or the -- whatever  19 happened to these minutes, or whether they were seen  20 before or whether this witness can confirm the minutes  21 at all.  It seems to me that this is -- is not a  22 document like the others where there is clearly an  23 exchange of correspondence between the representative  24 of the -- either the Moricetown Band or the -- the  25 forester or the mill manager and the Ministry of  26 Forests, so I -- I have some reservations about that.  27 It really doesn't seem to me to be a proper document  28 to mark in the sequence.  29 MR. GOLDIE:  30 Q   I was under the impression that the witness had  31 adopted the statements that were made, and I'll put  32 the question to him.  33 A  Well, I was just saying that, you know, I couldn't  34 recall which -- which of the meeting this was and I  35 couldn't recall the names of the people.  36 Q   That's quite correct, but everything that is stated  37 about your mill -- and I'll go through it item by  38 item.  Mill footings in place.  That was correct at  39 that time, wasn't it?  40 A   Yes.  I think so.  41 Q   Northwood number 2 mill purchased and equipment and  42 transport for Houston.  Your new mill was bought from  43 Northwood and it was called their number two mill,  44 wasn't it?  45 A   Yes.  46 Q   So that's correct.  The debarker was ordered; is that  47 right? 3856  D. Michell (for plaintiff)  Cross-exam by Mr. Goldie  1 A   Yes.  2 Q   And the chipper had been purchased, maximum 15-inch  3 diameter.  That was right, wasn't it?  4 A   Yes.  5 Q   Is there anything that is stated in this document that  6 you disagree with?  7 A   Everything that this thing says did took place at the  8 mill through purchasing and everything.  9 Q   Yes?  10 A   But, you know, like, I just couldn't remember this  11 meeting.  It doesn't say who said what and who -- who  12 gave the information, and then I couldn't remember.  13 Q   I appreciate that, but there is nothing in this  14 document which touches the Moricetown Mill or the  15 position that you were in at that time with which you  16 disagree; is that right?  17 A  Well, the thing is, you know, like, who made this  18 report to the forestry, I couldn't remember.  19 Q   You mean --  20 A   You know, it could have been Warner or it could have  21 been Ned.  I don't know who give this.  22 Q   Or it could have been you?  23 A   No.  It wouldn't be me because I wasn't involved in  24 it.  25 Q   I see.  But it would be either be Warner or Ned?  26 A   Ned or somebody else.  Ned is just really involved  27 with the timber.  28 THE COURT:  I'm satisfied the witness has sufficiently adopted  2 9 the items.  30 MR. RUSH:  I withdraw the objection.  31 THE COURT:  All right.  Thank you.  The minutes will be —  32 November 27th, 1985, will be Exhibit 282.  33 THE REGISTRAR:  282.  34 MR. GOLDIE:  Thank you, my lord.  35 (EXHIBIT 282:  Tab 9, Minutes of the meeting of  36 November 27, 1985)  37 THE COURT:  Well, is there any point in going any further, Mr.  38 Goldie?  39 MR. GOLDIE:  No.  I had hoped to have left time for Ms.  40 Koenigsberg and my friend, but such are the hopes of  41 mortals which are often dashed.  But I -- I must get  42 this in in light of -- so I cannot abandon this  43 examination at this point unless your lordship is  44 prepared to sit later.  45 THE COURT:  How long will you take?  46 MR. GOLDIE:  Well, I —  47 THE COURT:  We're still not going to finish anyway. 3857  D. Michell (for plaintiff)  Cross-exam by Mr. Goldie  1 MR. RUSH:  I don't see it.  2 THE COURT:  No.  I — I would be happy to sit an extra hour if  3 we can do it, but it doesn't sound like he's going to  4 do it so, I think we'll have to adjourn until a week  5 Monday at 10 o'clock.  All right.  Thank you.  I wish  6 you a pleasant week.  7 Oh.  What is the position of all these papers?  I  8 don't know yet whether we're going to need this room.  9 I think we are.  That doesn't mean everything has to  10 be taken out.  I think it will be useful -- counsel  11 have rooms nearby, do you not?  I think it would be  12 wise if you took your own documents out.  I -- I had  13 in mind a matter that I myself may be sitting on on  14 Tuesday and I don't know if the room will be needed on  15 Monday.  I doubt it, but I think it might be needed  16 Tuesday.  17 Madam Registrar reminds that they probably won't  18 use the room.  Well, yes.  We may be all right.  While  19 we're awful short of judges on Monday, the fact is  20 that we're short sufficiently that we probably won't  21 use up all the other rooms, and it may be that we  22 won't have to sit in this room at all.  I think  23 counsel are safe to leave things the way they are if  24 they wish to do so.  The room's been especially keyed  25 and will be locked.  Madam Registrar and I have the  26 only two keys, I believe.  I think we'll take a chance  27 on leaving things as they are.  28 MR. GRANT:  My lord, there's just one point I wanted to raise.  29 It came out of the matter at two o'clock and I just  30 want to raise it so that my friends could be notified  31 now, and that was what the Court said regarding the  32 band council documents.  Since the comments to the  33 Court, I have just been reviewing Volume 61, the  34 transcript, around that area, and to be honest, I  35 cannot locate this statement attributed to the witness  36 upon which my friend, Mr. Goldie, relies and I will  37 just ask if he or his office would look at it in the  38 next week and apprise me as to what they're relying on  39 on that point, because I cannot see it.  He summarized  40 it and I'm not certain whether he may -- it may be  41 there, but I could not locate it.  42 THE COURT:  I'm not sure that I have in mind, and I don't know  43 Mr. Goldie has, what statement you're referring to.  44 MR. GRANT:  It's a question of the control — the Court  45 suggested the control of the documents.  Mr. Goldie  46 was relying on the evidence of the witness, the  47 control of the documents are in the hands of the 3856  D. Michell (for plaintiff)  Cross-exam by Mr. Goldie  1 plaintiffs.  If that's the case, then I must file  2 further material.  3 THE COURT:  Mr. Goldie will speak for himself, but my  4 recollection is that what he was relying on was the  5 statement made by the witness that the band council  6 does what the hereditary chiefs tell them.  7 MR. GRANT:  And I found that with respect to the tribal council.  8 I could not find that with respect to the band  9 council.  10 THE COURT:  Will you do that?  11 MR. GOLDIE:  Yes.  I can do that.  12 THE REGISTRAR:  Order in Court.  Court is adjourned.  13  14  (PROCEEDINGS ADJOURNED UNTIL FEBRUARY 29, 1988 AT 10:00 A.M.)  15  16  17 I hereby certify the foregoing to be  18 a true and accurate transcript of the  19 proceedings transcribed to the best  20 of my skill and ability.  21  22  23  24 Kathie Tanaka, Official Reporter  25 UNITED REPORTING SERVICE LTD.  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 3859  D. Michell (for plaintiff)  Cross-exam by Mr. Goldie

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