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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1988-04-25] British Columbia. Supreme Court Apr 25, 1988

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 5471  1 April 25, 1988  2 Vancouver, B.C.  3  4 (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT)  5  6 THE REGISTRAR:  In the Supreme Court of British Columbia, this  7 Monday, April 25, 1988.  Calling Delgamuukw versus  8 Her Majesty the Queen at bar.  I caution the witness  9 and the interpreter are still under oath.  10  11 EXAMINED BY THE COURT:  12 Q    Mr. Mackenzie, before you start, I wonder if I might  13 ask Mr. Morrison about the territory of Wii gaak  14 which is shown on Exhibit 378.  Could he be shown  15 Exhibit 378, please.  I have two conflicting notes,  16 Mr. Morrison, about that territory.  17 A    Yes.  18 Q    At one place at page -- well, I don't know what page  19 it is.  Let me just see if I can find it.  At one  20 place I have you saying that that property was  21 transferred to Wii gaak in a caretaker status, and  22 another place I have it that that property was  23 transferred permanently and left in a state of  24 uncertainty.  Can you assist me in that regard?  25 A    My lord, do you want to clarify that?  26 Q    Yes, I need to know whether it is a permanent  27 transfer or a temporary transfer, a caretaker  28 situation?  29 A    Well, see one thing how our Indian law is to -- like  30 the boundary is still the same as it is before.  And  31 what is in this time -- this is what you have asked  32 me before and I stated that it is the same line  33 boundaries and it could be taken back.  It is not  34 permanent, it is temporary.  If they decide to take  35 it back any time they want to, they could take it  36 back.  37 Q    It originally belonged to Wii minoosik, did it not?  38 A    No, originally from Charles Morrison which is  39 Sduutx'm lax ha, that is House of Nii Kyap.  40 THE COURT:  Yes, I have this.  On Tuesday, April 29th I have —  41 you said:  42 "This territory was not always part of the  43 territory of Wii gaak, it used to belong to  44 Wii minoosik.  It was transferred because  45 of help given by Jack Wright at feasts and  46 other things and on the trail and building  47 cabins.  And so the land was transferred in 5472  1  2  3  4  5  6  7  8  9  10  MR.  RUSH:  11  12  THE  COURT  13  MR.  RUSH:  14  15  THE  COURT  16  Q  17  18  19  A  20  21  THE  COURT  22  23  MR.  RUSH:  24  THE  COURT  25  Q  26  27  28  29  30  31  A  32  Q  33  A  34  Q  35  36  37  38  39  40  41  42  A  43  Q  44  45  46  47  thanks in order to give them a place to get  food.  It was all done and witnessed in the  feast hall many years ago before my  lifetime, but during Jack Wright's  lifetime.  Tommy Wii minoosik was Jack  Wright's uncle.  They are of the same clan  and it is a caretaker transfer."  Now, that is the note I made of your evidence.  My lord, you are talking about another territory  other than the one that is the Wiigyet's territory.  Well, that is always possible in these matters.  There were, in fact, two transfers and you are  talking about the second of the two.  Well, I am talking about Wii gaak, G-A-A-K, is what  I thought I was talking about.  Now, have I got that  completely wrong?  Well, the first one that you are talking about  Wiigyet.  I am not talking about Wiigyet, I am talking about  Wii gaak.  You are talking about territory C?  Yes, indeed we are.  Yes, I thought we were.  I  asked the witness to have the map put in front of  him when we were talking about that territory at the  top left of Exhibit 378.  Now, is the note that I  made and which I have just read to you, is that not  correct?  Well, that's a different territory.  Pardon me?  Is what I have said correct?  Will you read it over again?  Well, it used to belong to Wii minoosik and was  transferred to Jack Wright at feasts because of  assistance he gave on the trail and building cabins.  It was done during Jack Wright's lifetime.  Tommy,  Wii minoosik -- is it Wii minoosik?  It was  transferred during his lifetime, he was Jack  Wright's uncle.  They belonged to the same clan and  it is a caretaker transfer?  Yes.  All right.  Then later the same day I have a note  here that says:  "In Wii gaak's territory in Exhibit 378 he  is a caretaker and it is a legal transfer  approved by all chiefs at the feast, so Wii 5473  Proceedings  1 gaak is the legal owner.  They are not of  2 the same clan from Frog to Wolf permitted  3 by Gitksan law, the transfer is  4 compensation for services.  It is a  5 permanent, not a temporary transfer.  It  6 was done at that time when Jack Wright was  7 still alive."  8  9 Now, it seems to me there is a clear inconsistency  10 there.  And I think we are talking about the same  11 things, but you will have to assist me if you can.  12 A    Yes, this is -- you asked me in two territories  13 before and I said, yes, this is not permanent, it is  14 temporary.  15 Q    So you say that this territory in the top left of  16 Exhibit 378 —  17 A    Yes.  18 Q    -- is being looked after by Wii gaak?  19 A    Yes.  20 Q    And can be returned or can be claimed back by Wii  21 minoosik any time?  22 A   At any time.  23 Q    So it is not a permanent transfer?  24 A    Yes.  25 THE COURT:  All right.  Thank you.  Mr. Mackenzie.  26 MR. MACKENZIE:  Yesterday — correction, on Friday, My Lord, you  27 referred to the evidence that was given about the  28 Nisga'a feast at Canyon City.  Did Your Lordship  29 wish to review that argument again?  30 THE COURT:  Oh, yes, I'm sorry.  Well, I'm sorry, I did not look  31 into that overnight.  Do you need to deal with it  32 now?  33 MR. MACKENZIE:  No, My Lord.  34 THE COURT:  All right.  35 MR. MACKENZIE:  My Lord, I would appreciate the benefit of Your  36 Lordship's ruling on that point before I complete my  37 cross-examination, if possible.  38 THE COURT:  Well, I am quite happy to have argument on it right  39 now.  I didn't look at the authorities, but I am  40 sure counsel did.  41 MR. MACKENZIE:  My questions today will not relate to that  42 subject, but there were some not asked before.  43 THE COURT:  Well, I will look at this as soon as I can, but, I'm  44 sorry, I didn't have my authorities at home on the  45 weekend and I omitted to look at this this morning.  46 I am prepared to hear argument from counsel on the  47 matter any time you wish.  Do you want to do it at 2 5474  Proceedings  1  2  MR.  RUSH:  3  4  5  6  7  8  THE  COURT:  9  10  11  12  13  14  15  16  MR.  MACKENZ  17  18  19  20  21  22  THE  COURT:  23  MR.  MACKENZ  24  25  THE  COURT:  26  27  MR.  MACKENZ  28  THE  COURT:  29  MR.  MACKENZ  30  31  THE  COURT:  32  MR.  MACKENZ  33  34  THE  COURT:  35  MR.  MACKENZ  36  THE  COURT:  37  MR.  MACKENZ  38  39  40  41  42  43  44  45  46  47  THE  COURT:  o'clock this afternoon?  Well, My Lord, I was of the view that the argument  had been exhausted and Your Lordship was going to  make a decision.  I thought that what Mr. Mackenzie  was saying is he was reminding Your Lordship, in the  gentlest of tones, of whether or not you could  render a decision on that.  Well, what I haven't had is the benefit of any  assistance from counsel on the judgment that I  pronounced on this question.  I was going to look at  it, but I assumed counsel would as well.  I am not  going to be able to do it today, but I would be glad  to hear argument from counsel and I will probably  decide off the bench if counsel would have referred  me to the authorities.  IE:  My Lord, I made some brief notes for argument  because my comments on Friday were without having  the benefit of having reviewed Your Lordship's  judgment.  And I wonder if I could just hand up  brief notes for argument and hand them to my  friends.  Yes.  IE:  And that would just finish up my comments from  Friday.  Thank you.  When you made a reference here to volume  6, page 54.  IE:  It is the transcript volume 86, My Lord.  This says 6, yes.  IE:  If I may now, My Lord, I will proceed with the  evidence.  Yes.  IE:  And I have handed up to Your Lordship the grey  volume 3.  You have?  IE:  I guess not.  Thank you.  IE:  And two other documents to which I will be  referring I am handing up now, My Lord.  My Lord, I  anticipated that Your Lordship would have the Canada  map.  I have photocopied a section of that map at  tab 12 of this grey binder so that Your Lordship  could mark on it.  And, Your Lordship, since I will  be dealing in some detail in the territories today,  I wanted to briefly refer Your Lordship to this map  which is a copy from Canada.  Does Your Lordship  wish to have the actual --  No, this is quite convenient, thank you. 5475  1  MR.  2  3  4  THE  5  MR.  6  THE  7  MR.  8  9  THE  10  MR.  11  12  13  THE  14  MR.  15  16  17  THE  18  MR.  19  20  21  22  THE  23  MR.  24  25  26  27  28  THE  29  30  31  MR.  32  THE  33  MR.  34  THE  35  MR.  36  37  THE  38  MR.  39  40  THE  41  MR.  42  43  44  45  46  47  THE  Proceedings  MACKENZIE:  I start off, My Lord — if Your Lordship would  look in the upper corner, Your Lordship will see  Bowser Lake, we spoke about it on Friday?  COURT:  Yes.  MACKENZIE:  And south of that is Meziadan Lake?  COURT:  Yes.  MACKENZIE:  And then going over to the northeast part of the  land claim?  COURT:  Yes.  MACKENZIE:  The very northeast or just above the current  northeast boundary, I have highlighted Tuu daa dii  Lake for Your Lordship's reference.  COURT:  Yes.  MACKENZIE:  And that will lead you, My Lord, to the northern  territories.  And you can see that they've been  marked there A, B, C?  COURT:  Yes.  MACKENZIE:  And you can see the relation to Tuu daa dii  Lake.  And then coming down the eastern boundary  about halfway down the eastern boundary Your  Lordship -- does Your Lordship see Bear Lake?  COURT:  Is it marked?  MACKENZIE:  I thought it was highlighted, but it may not be,  My Lord.  If you come down the eastern boundary you  will see a darkened spot on the boundary.  If Your  Lordship will go directly left of that you will see  Bear Lake.  It is just west of the Connelly Range.  COURT:  No, I haven't found it yet.  I may be looking at the  wrong dark spot.  Tell me where it is again in  relation to the CAABB.  MACKENZIE:  It is just —  COURT:  Show me where it is again.  MACKENZIE:  It is southeast of the lower B, My Lord.  COURT:  Southeast of the lower B.  North of the Sustut?  MACKENZIE:  Just south of the Sustut.  Your Sustut should be  highlighted on your map, My Lord.  COURT:  I have it.  Yes, it is highlighted.  MACKENZIE:  That has come up in the evidence several times,  My Lord.  COURT:  Yes.  MACKENZIE:  And if Your Lordship will continue on south of  Bear Lake, Your Lordship will come also to the  Kotsin River which is not highlighted, but it is  just about two or three inches below Bear Lake  there.  You can see from Bear Lake there appears to  be a trail going down.  COURT:  The trail goes through the lake? 5476  Proceedings  1 MR. MACKENZIE:  Yes.  2 THE COURT:  And that is called what?  3 MR. MACKENZIE:  Kotsin, K-O-T-S-I-N, and that came up Friday  4 where there is a differing opinion about the claim.  5 THE COURT:  Yes.  6 MR. MACKENZIE:  And now, My Lord, moving west of Kotsin, you  7 will see the southern group of territories and there  8 is a correction D-e-f-e --  9 THE COURT:  Yes.  10 MR. MACKENZIE:  And those are just above Kisgagas.  11 MR. RUSH:   Your Lordship might note that Kisgagas is  12 misspelled, it is Kisgapas.  13 MR. MACKENZIE:  Yes.  And Your Lordship can see the relationship  14 between those territories Kispiox and Hazelton which  15 are further down south highlighted.  16 THE COURT:  Yes.  17 MR. MACKENZIE:  Now, Your Lordship, there is a reference to the  18 road going up to Kisgagas.  And Your Lordship will  19 see that following from Hazelton and the Kispiox  20 area going up the east side of the river there --  21 THE COURT:  Yes.  22 MR. MACKENZIE:  — and to Kisgagas.  But that's how the  23 territories relate to one another and to Hazelton.  24 And from Mr. Morrison's affidavit, Mr. Morrison says  25 in paragraph 3 that the most northern territory is  26 65 miles of Kisgagas.  In his evidence he said it  27 was 100 miles from Hazelton, so Your Lordship will  28 get an idea of the measurement.  29 THE COURT:  What is it?  30 MR. MACKENZIE:  My note is that it is approximately 100 miles  31 from the territory.  32 THE COURT:  To A?  33 MR. MACKENZIE:  Yes.  So that is just orienting Your Lordship to  34 those place names.  And as it appears on this map,  35 there is no road access to the territory at all.  36 There is the B.C. Rail territory that has come out  37 in the evidence.  38 THE COURT:  Is the railroad shown in this map?  39 MR. MACKENZIE:  Yes, it is, My Lord.  4 0 THE COURT:  Yes, I see.  41 MR. MACKENZIE:  It is shown as being under construction up in  42 our northern territories.  43 THE COURT:  That is an accurate description.  44 MR. MACKENZIE:  So that completes my review of that map, My  45 Lord.  This map purports to show the old boundaries  46 which are outside the pink line.  The current  47 boundary and the former boundaries in 1984 are 5477  Proceedings  1 outside there.  2 THE COURT:  That's the dark line?  3 MR. MACKENZIE:  Yes.  4 THE COURT:  Is the 1984 boundary?  5 MR. MACKENZIE:  Yes.  And it went through Tuu daa dii Lake there  6 as we discussed in the evidence on Friday.  7 THE COURT:  Yes.  Kisgagas doesn't — I'm sorry.  Gitangasx  8 doesn't appear on the map?  9 MR. MACKENZIE:  It doesn't appear on the Canada map, My Lord,  10 that is the old Gitksan village.  11 THE COURT:  All right.  Can anyone tell me where the actual  12 headwaters of the Skeena are?  13 MR. MACKENZIE:  Perhaps Mr. Morrison knows.  14 THE COURT:  I'm sorry, it looks like it goes off the top of the  15 map.  16 MR. MACKENZIE:  I think it goes up into the Klappan country.  17 THE COURT:  Yes.  Thank you.  18 MR. MACKENZIE:  My Lord, I wish to submit as exhibits the  19 interrogatories which are contained in this grey  20 binder.  21 THE COURT:  In the grey binder?  22 MR. MACKENZIE:  Yes, My Lord, volume 3.  The first is at tab 3,  23 My Lord, it is the interrogatories of Robert Stevens  24 dated April 29, 1987, Interrogatory 59C.  2 5 THE COURT:  Yes.  26 MR. MACKENZIE:  And map 1 of 3 of the maps referred to in  27 interrogatories 59C.  Does Your Lordship wish to  28 have those together as the same exhibit?  2 9 THE COURT:  Yes.  Do you want me to look at the map?  30 MR. MACKENZIE:  No, My Lord.  31 THE COURT:  Yes, they can be the next exhibit.  32 THE REGISTRAR:  Are there three maps in here?  33 MR. MACKENZIE:  No, one map, and I am going to go to the next  34 maps.  35 THE COURT:  Are there two maps in that?  36 MR. MACKENZIE:  No, My Lord.  37 THE COURT:  What exhibit will this be?  38 THE REGISTRAR:  Exhibit 414.  39 MR. RUSH:   This is Wii minoosik, Robert Stevens of tab 29?  40 THE COURT:  Interrogatory 59C and the map.  41  42 (EXHIBIT 414:  Affidavit of Robert Stevens dated  43 January 29, 1987 with Interrogatory 59C and Map,  44 Tab 3 of grey binder)  45  46 MR. RUSH:   Isn't it January 29, 1987?  47 MR. MACKENZIE:  My Lord, Mr. Rush is correct in saying that the 547?  Proceedings  1 date of that interrogatory -- that affidavit is  2 January 29, 1987.  3 THE COURT:  Where are you going next?  4 MR. MACKENZIE:  I am going to tab 4, My Lord.  5 THE COURT:  Thank you.  6 MR. MACKENZIE:  And that's another map attached to that same  7 interrogatory.  That is map 2 of three maps.  8 THE COURT:  Is this the same interrogatory?  9 MR. MACKENZIE:  Yes, My Lord.  It is another one of the maps.  10 THE COURT:  How does -- that is Wii minoosik, he has more than  11 one territory?  12 MR. MACKENZIE:  Yes, My Lord.  13 THE COURT:  All right.  Thank you.  It is still Interrogatory  14 59C, then?  15 MR. MACKENZIE:  Yes, My Lord.  16 THE COURT:  All right.  That will be Exhibit 415.  17 THE REGISTRAR:  415. Just the map this time.  18 MR. RUSH:   Just the map?  19 THE COURT:  Well, the interrogatory is in.  All right 415.  20  21 (EXHIBIT 415:  Map, Tab 4)  22  23 MR. MACKENZIE:  To distinguish that map from the other map, My  24 Lord, I could tell the court that this map Exhibit  25 415 has the Damdochax, D-a-m-d-o-c-h-a-x.  2 6 THE COURT:  D-a-m?  27 MR. MACKENZIE:  D-a-m-d-o-c-h-a-x's territory.  2 8 THE COURT:  Do you want me to look at that?  29 MR. MACKENZIE:  No, My Lord.  Next is at tab 5, the  30 interrogatory of Neil Sterritt Sr. dated January 28,  31 1987, Interrogatory 59C.  32 THE COURT:  And map?  33 MR. MACKENZIE:  And map.  34 THE COURT:  All right.  That will be Exhibit 416.  35 THE REGISTRAR:  416.  36  37 (EXHIBIT 416:  Interrogatory 59C and Map, Neil  38 Sterritt Sr. dated January 28, 1979, Tab 5 of  39 grey binder)  40  41 THE COURT:  Do I need to look at the map?  42 MR. MACKENZIE:  No, My Lord.  And at tab 6, My Lord, this is the  43 interrogatory of Jeffrey Harris Sr. dated August 9,  44 1986.  45 THE COURT:  August 9th  46 MR. MACKENZIE:  Yes.  4 7 THE COURT:  And map? 5479  Proceedings  1 MR. MACKENZIE:  And map, yes.  Interrogatory 59C and map.  2 THE COURT:  All right.  They will both be Exhibit 417.  3 THE REGISTRAR:  417.  4  5 (EXHIBIT 417:  Interrogatory 59C and Map, Jeffrey  6 Harris dated August 9, 1979, Tab 6 of grey  7 binder)  8  9 MR. MACKENZIE:  And tab 7, My Lord.  10 THE COURT:  Just a moment, please.  11 MR. MACKENZIE:  Sorry, My Lord.  Thank you.  12 THE COURT:  Thank you.  Tab 7.  13 MR. MACKENZIE:  Interrogatories of Lloyd Morrison dated January  14 23, 1987, interrogatory 59C and map.  15 THE COURT:  418.  16 THE REGISTRAR:  418.  17  18 (EXHIBIT 418: Interrogatory 59C and Map, Lloyd  19 Morrison dated January 23, 1987, Tab 7 of grey  20 binder)  21  22 MR. MACKENZIE:  And tab 14, My Lord, interrogatory of Alice  23 Jeffrey dated March 25, 1987.  2 4 THE COURT:  And map?  25 MR. MACKENZIE:  There is no map produced with this  26 interrogatory, My Lord.  2 7 THE COURT:  Thank you.  28 MR. RUSH:   Sorry, which?  29 MR. MACKENZIE:  Tab 14.  30 MR. RUSH:   There is a map at tab 8, is that connected with the  31 interrogatory of tab 7?  32 MR. MACKENZIE:  No.  33 THE COURT:  That will be Exhibit 419.  34 THE REGISTRAR:  419.  35  36 (EXHIBIT 419:  Affidavit of Alice Jeffrey dated  37 March 25, 1987, with Interrogatory 59C, Tab 14 of  38 grey binder)  39  40 MR. MACKENZIE:  And Interrogatory 59C attached to that.  41 THE COURT:  Yes.  42 MR. MACKENZIE:  And finally, My Lord, tab 15, this is the  43 interrogatory of Solomon Jack dated January 30,  44 1987.  4 5 THE COURT:  No map?  46 MR. MACKENZIE:  Yes, a map will be produced.  I have the map  47 right here, My Lord. 5480  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 THE COURT:  All right.  The interrogatory will be Exhibit 420  2 with the map as well if it is not objected to.  3 MR. RUSH:   I just to note the draft copy.  4 THE COURT:  Yes, I assumed that.  5 MR. MACKENZIE:  Yes, they are all draft copies.  6  7 (EXHIBIT 420:  Interrogatory 59C and Map, Solomon  8 Jack dated January 30, 1987, Tab 15 of grey  9 binder)  10  11 THE COURT:  Do I need to look at this?  12 MR. MACKENZIE:  No, My Lord.  13 THE COURT:  All right.  Thank you.  14 MR. MACKENZIE:  If Your Lordship could have Exhibit 376 handy as  15 well, that's the affidavit as well as the two maps,  16 maps A and B.  17 THE COURT:  Yes, thank you.  18 MR. MACKENZIE:  And, Madam Registrar, if you could put that  19 before the witness.  20 THE REGISTRAR:  Yes.  21 MR. MACKENZIE:  Just before I start, I just want to confirm that  22 I marked tab 7.  23 THE COURT:  Yes, it is Exhibit 418.  24  25 CROSS-EXAMINATION BY MR. MACKENZIE (Cont.):  Mr. Morrison, I would like to ask you a few  questions about the territories you've discussed.  In your testimony you said that the boundaries have  been the same for thousands of years; is that  correct?  Yes.  And you also say that your people, the Indian  people, are still harvesting and looking after these  territories today?  Yes.  Now, you said in your testimony that the chief's --  a chief's responsibilities is to be aware of  wildlife populations on the territories; is that  correct?  Yes.  Yes.  And the chief's responsibility is to be aware  of non-Indian use of the territories; is that  correct?  Yes.  Now, you are not a chief claiming ownership of any  of these territories, are you?  Which one are you talking about?  26  Q  27  28  29  30  31  A  32  Q  33  34  35  A  36  Q  37  38  39  40  A  41  Q  42  43  44  A  45  Q  46  47  A 5481  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 Q    Well, any of the territories that you discussed in  2 your affidavit?  3 A    No.  4 Q    But you are the person who knows most about these  5 territories; is that correct?  6 A    Yes.  7 Q    And all the informants, all the people that you  8 mention in your affidavit are deceased; is that  9 correct?  10 A    Yes.  11 Q    Are there other people living today who know about  12 these territories?  13 A    I think so.  There is people who know each other.  14 Q    Sorry, I didn't get that.  I beg your pardon?  I  15 didn't hear you, what was your answer?  16 A    There are people that are still living here today  17 that they know the territory.  18 Q    Well, with respect to territory C, the northern Wii  19 gaak territory, who knows about that territory?  20 A    My brother Sam.  21 Q    And with respect to territory A, the Chipmunk Creek  22 territory, who knows about that territory?  23 A    That's same, Sam Morrison.  24 Q    And with respect to territory B, Wii minoosik's  25 territory, who knows about that territory?  26 A    Sam Morrison.  27 MR. MACKENZIE:  And with respect to territory D, the northern  28 Tsabux territory, who knows about that one?  29 MR. RUSH:   Are you referring to tab — Exhibit 379?  30 MR. MACKENZIE:  31 Q    Yes, I am talking about the Tsim Gwi Daganwit  32 territory, territory D.  Who knows about that  33 territory?  34 A    The only people who trapped it that I know is alive  35 is just Joshua McLean, that's the people who know  36 about it.  37 MR. MACKENZIE:  Sorry, Joshua McLean?  38 THE COURT:  I'm sorry, I couldn't hear that.  39 THE WITNESS:  Joshua McLean is still living today.  40 THE COURT:  I didn't get the person, who was it?  41 MR. MACKENZIE:  Joshua McLean.  42 THE COURT:  Joshua.  43 MR. MACKENZIE:  44 Q    And you testified earlier that Joshua McLean lives  45 in Gitanmaax?  46 A    Yes, he is from Kisgagas, but he is living in  47 Gitanmaax. 5482  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 MR. MACKENZIE:  I am sorry, you will have to speak up for His  2 lordship.  Did Your Lordship get that last response?  3 THE COURT:  He is originally from Kisgagas—  4 THE WITNESS:  Kisgagas, but now living in Gitanmaax.  5 THE COURT:  Yes.  6 THE WITNESS:  It is combined together, both villages.  7 MR. MACKENZIE:  8 Q    The people came down from Kisgagas sometime in the  9 1950's to Gitanmaax?  10 A    Somewhere around that area.  11 Q    And who else knows about the southern Tsabux  12 territory Lax An hakw, Shelf Ridge?  13 A    Well, there is Gal sii tip haat.  14 Q    Who was that?  I'm sorry, we have to get a spelling  15 on that?  16 A    That's Simgit gii geenix.  17 MR. MACKENZIE:  We have to get a spelling on that.  18 THE COURT:  What is this person's name?  19 THE WITNESS:  Gal sii tip haat is the first name and he take  20 over the Simgit gii geenix's name which is Robert  21 Jackson.  22 MR. MACKENZIE:  Well, just hang on a minute and we will get the  23 spelling.  24 THE TRANSLATOR:  Gal sii tip haat is G-a-1 s-i-i t-i-p h-a-a-t.  2 5 THE COURT:  Thank you.  26 THE TRANSLATOR:  Simgit gii geenix is S-i-m-g-i-t g-i-i  27 g-e-e-n-i-x.  28 MR. MACKENZIE:  Those names will come up again, so if Your  29 Lordship could perhaps make a reference of those.  30 We may be referring back.  31 THE COURT:  They are stamped in indelible ink.  32 MR. MACKENZIE:  33 Q    And you say that Robert Jackson now has that name?  34 A    Yes, Simgit gii geenix.  35 Q    How does Robert Jackson relate to the first name Gal  36 sii tip haat?  37 A    Which one?  38 Q    Gal sii tip haat, how does Robert Jackson relate to  39 that?  40 A    Jackson you mean?  41 MR. MACKENZIE:  Who is that name Gal sii tip haat?  42 THE TRANSLATOR:  Gal sii tip haat.  43 THE WITNESS:  Oh, that's House of Miluulak.  44 MR. MACKENZIE:  45 Q    Is that a chief's name?  46 A    Well, a sub-chief.  47 Q    And who is holding that name? 5483  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 A    I am not sure when he has taken it over again.  He  2 has to take it at least once and give it again.  3 Q    Robert Jackson had the name before?  4 A    Yeah.  If you want to give it to somebody else, you  5 can give it to somebody else.  6 Q    But no one has the name now?  7 A    Well, I am not sure what he has to do with it.  8 Q    All right, fine.  But Robert Jackson had that name?  9 A    Yes.  10 Q    And he is a member of the House of Miluulak?  11 A    Yes.  12 THE COURT:  I'm sorry?  13 MR. MACKENZIE:  The House of Miluulak, M-i-1-u-u-l-a-k.  14 THE COURT:  M-i-1-u-u-l-i-k?  15 MR. MACKENZIE:  L-A-K.  16 MR. RUSH:   It is 49 on the plaintiff's list.  17 THE COURT:  Thank you.  18 MR. MACKENZIE:  19 Q    And who knows about territory E, Ska'yans't?  20 A    Sam Morrison.  21 Q    And who knows about territory K, Skadakwit?  22 A    Sam Morrison.  23 MR. MACKENZIE:  Now, referring to territory F, Shelf Ridge which  24 is on the map B, Exhibit 379, in your affidavit --  25 and paragraph 38 of your affidavit is Exhibit 376.  26 MR. RUSH:   What paragraph number?  27 MR. MACKENZIE:  28 Q    Paragraph 38.  You say that this territory is  29 claimed by Tsabux, correct?  30 A    Yes.  31 Q    And you include in that the territory which is shown  32 west of the Shedin Creek on map B up to Dam Similo'o  33 Lake, correct?  34 A    Yes.  35 Q    And Tsabux is Wolf Clan, isn't he?  36 A    Yes.  37 Q    And I just point out in your paragraph 39 the  38 comment that Henry Wright is one of the people who  39 have told you about this; is that correct?  40 A    Yes.  41 Q    And you say that you travelled on the territory with  42 Henry Wright, didn't you?  43 A    Yes.  44 MR. MACKENZIE:  That is in your paragraph 39.  Does Your  45 Lordship have that reference?  4 6 THE COURT:  Yes.  47 MR. MACKENZIE: 5484  1  Q  2  3  A  4  Q  5  A  6  Q  7  8  9  A  10  Q  11  12  A  13  14  Q  15  16  A  17  Q  18  19  A  2 0 MR. I  4ACK  21  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Mackenzie  Well, Mr. Morrison, in fact that Shelf Ridge area is  owned by the Frog Clan, isn't it?  Wolf Clan.  You say it is owned by the Wolf Clan?  Yes.  And it is actually Gal sii tip haat, Robert  Jackson's former name, he was the chief of that  territory, wasn't he?  No.  That territory is in the House of Miluulak, wasn't  it?  This territory belongs to Tsabux as is stated on  there.  Well, in 1979 you heard Henry Wright tell you that  it was owned by the Frog Clan, didn't you?  No.  You heard Henry Wright tell you that it was in the  House of Miluulak, didn't you?  No.  IE:  My Lord, referring to the small black binder  page 3-86.  22 THE COURT:  Could this be called volume 4?  23 MR. MACKENZIE:  Yes, it could be, My Lord.  24 THE COURT:  Yes.  Page again, please?  25 MR. MACKENZIE:  3-86, My Lord.  26 THE REGISTRAR:  Do you want that in front of the witness?  27 MR. MACKENZIE:  28 Q    Yes, please.  Now, Mr. Morrison, you were present in  29 July 1979 when Mr. Neil Sterritt interviewed Henry  30 Wright, weren't you?  31 A    Yes.  32 MR. MACKENZIE:  And Henry Wright was talking about Shelf Ridge,  33 wasn't he?  34 MR. RUSH:   I think my friend might be a little more specific.  35 THE COURT:  Well, that is quite a specific question, isn't it?  36 MR. RUSH:   Well, was it July 1st?  There may have been 20  37 interviews that month.  38 THE COURT:  All right.  39 MR. MACKENZIE:  40 Q That interview was on July 7, 1979, wasn't it?  41 A This is July you are talking, July?  42 Q Yes.  43 A I remember it in the fall.  I don't remember the  44 exact date when we meet very much because we  45 travelled together with Henry.  We travel up to  46 southern territory together.  47 Q    Do you recall this interview with Neil Sterritt and 5485  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 David Green and Joshua McLean were there as well?  2 A    Yes.  3 Q    And Henry Wright said that the Shelf Ridge belongs  4 to Gal sii tip haat?  5 A    No, I don't remember he said that.  6 THE COURT:  I'm sorry?  7 THE WITNESS:  I don't remember he said that.  8 MR. MACKENZIE:  9 Q    Henry Wright said that Shelf Ridge was Lax Seel,  10 Frog Clan, didn't he?  11 A    No.  12 Q    So are you saying that this note in volume 3, page  13 3-86 that is in front of you is wrong?  14 A    Well, maybe they mentioned about hunting.  It didn't  15 really say on this one what we were talking about.  16 Q So you disagree with this note?  17 A Yes.  18 Q Okay.  19 A And some points where it has to be specific what  20 they are asking for.  21 Q So you agree that David Green was there?  22 A Yes.  23 Q And do you agree that Joshua McLean was there?  24 A Yes.  25 Q And you agree that it was in July -- on July 7;  26 1979?  27 A    Maybe so, maybe not.  28 Q    Fine.  Thank you.  Now, in your testimony and in  29 paragraph 42 of your affidavit under mountains,  30 number 2, you speak about the mountain Gelt Sa  31 huupxwit, do you remember that?  32 A    Yes.  33 MR. RUSH:   Is my friend endeavouring to pronounce number 2  34 under the --  35 THE COURT:  That's what he said.  He mentioned number 2.  36 MR. MACKENZIE:  And in your testimony on page 5222 at volume 83  37 you said that that mountain --  38 THE COURT:  Sorry, the reference?  39 MR. MACKENZIE:  Sorry, My Lord, Volume 383, page 5222.  4 0 THE COURT:  Yes.  41 MR. MACKENZIE:  You said that that mountain was one of the steepest  places you can find, right?  Which one?  Gelt Sa huupxwit?  Yes.  Just the part where the trail goes is steep.  That's why they call that Gelt Sa huupxwit.  42  Q  43  44  A  45  Q  46  A  47 5486  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 Q    And you say that that is in Tsabux's territory?  2 A    Yes.  3 Q    That is in Wolf Clan territory?  4 A    It is in Wolf Clan territory.  5 Q    Well, in 1979 you said it was owned by the Frog  6 Clan, didn't you?  7 A    I didn't say that.  8 Q    In 1979 you said it was owned by Gal sii tip haat?  9 A    No.  10 Q    In 1979 you said it was owned by the House of  11 Miluulak, didn't you?  12 A    Say it again?  13 Q    I said in 1979 you said that this was owned by the  14 House of Miluulak.  15 A    You didn't pronounce it right.  16 Q    I'm sorry, Miluulak.  17 A    Miluulak, thank you.  18 Q    Did you say that?  19 A    Miluulak.  20 Q    Did you say that Miluulak owned this mountain?  21 A    No.  22 MR. MACKENZIE:  Referring to volume 4, page 3-87, My Lord.  2 3 THE COURT:  Volume 4?  24 MR. MACKENZIE:  Volume 4, the black binder.  You have it before  25 Your Lordship.  26 THE COURT:  Yes.  Page 387?  27 MR. MACKENZIE:  3-87, My Lord.  28 THE COURT:  Yes.  Is this reference to Gat sii tip haat, is that  29 the name of a plaintiff?  30 MR. MACKENZIE:  No, My Lord, the evidence now is this is a  31 different spelling.  And I am going to suggest to  32 Mr. Morrison that this is a different spelling of  33 Gal sii tip haat that we have been speaking about  34 for the last several questions.  35 THE COURT:  Yes.  36 MR. MACKENZIE:  Now, that used to be Robert Jackson's name and  37 the evidence is it is no longer -- to Mr. Morrison's  38 knowledge he doesn't know who holds it now.  39 THE COURT:  Yes.  Thank you.  40 MR. MACKENZIE:  I don't know whether Robert Jackson is a  41 plaintiff.  42 THE COURT:  Well —  43 MR. MACKENZIE:  He is a plaintiff, but I don't know if he is a  44 named plaintiff.  45 THE COURT:  Is Miluulak?  46 MR. MACKENZIE:  Yes, Miluulak and Alice Jeffrey.  And Your  47 Honour has Alice Jeffrey's affidavit from this 5487  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 morning as an exhibit.  2 THE COURT:  Yes, thank you.  3 MR. MACKENZIE:  4 Q    Now, Mr. Morrison, on that same date that we  5 referred to July 7, 1979, did you speak to Neil  6 Sterritt about this mountain Gelt Sa huupxwit?  7 A   Are you referring to '79?  8 Q    Yes, July 7, 1979.  9 A    I don't remember speaking about a mountain with him.  10 Q    But you were with him, weren't you?  11 A    I was with him at certain times.  12 Q    You were with him on that date because you had also  13 had a meeting with Henry Wright on that day, hadn't  14 you?  15 A    Yes, about that date.  16 Q    And you told him on that date that this mountain is  17 Frog Clan, didn't you?  18 A    No.  19 Q    No.  Okay.  So you disagree with Mr. Sterritt's  20 notes at volume 4, page 3-87 that is in front of  21 you?  22 A    No, I don't know that.  23 Q    You didn't know it?  24 A    No.  25 THE COURT:  Tell me, please, what house is the House of  26 Miluulak?  27 THE WITNESS:  Miluulak's House?  28 THE COURT:  Yes, what house — what clan is that house?  29 THE WITNESS:  That is Frog Clan.  3 0 THE COURT:  Thank you.  31 MR. MACKENZIE:  32 Q    Now, can you agree with me, Mr. Morrison now that  33 Shelf Ridge Lax An hakw is Frog Clan territory?  34 A    No.  35 MR. MACKENZIE:  And I refer you to tab 7 of volume 3, the map  36 there.  37 THE COURT:  Exhibit 418?  38 MR. MACKENZIE:  Yes, My Lord.  My Lord, I should make a point  39 now for the record that I have taken the liberty of  40 putting the territorial designations on these maps.  41 These are not part of the original maps.  42 THE COURT:  Yes.  43 MR. MACKENZIE:  Does Your Lordship have that point?  44 THE COURT:  These are the letters given to the two sketches  45 we've been using?  46 MR. MACKENZIE:  Yes, my lord.  47 THE COURT:  Yes, thank you. 54?  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 MR. MACKENZIE:  Now, does Your Lordship now see the orientation  2 of this map where the territories are?  3 THE COURT:  Yes, I think so.  4 MR. MACKENZIE:  I think Your Lordship has map B, Exhibit 379.  5 Your Lordship will see that it shows the territory  6 that we are speaking about which is the territory  7 west of the Shedin Creek up to Dam Similo'o Lake?  8 THE COURT:  Yes.  9 MR. MACKENZIE:  10 Q    There is Lloyd Morrison's map or this is the draft  11 map attached to Lloyd Morrison's interrogatory.  And  12 Lloyd Morrison is the owner of Ska'yans't you said,  13 didn't you, Mr. Morrison?  14 A    Yes.  15 Q    And in his map it shows the territory that we've  16 been talking about, Lax An hakw, territory F, Shelf  17 Ridge as owned by Gal sii tip haat.  That is  18 different from your evidence, isn't it?  19 A    I didn't see this map before.  20 Q    No, I understand that.  I am just saying that is  21 different from your evidence, isn't it?  22 A    Yes.  23 MR. MACKENZIE:  Now, My Lord, if Your Lordship will keep that  24 map just outside the pocket because we may refer to  25 it again.  2 6 THE COURT:  Yes.  27 MR. MACKENZIE:  And now speaking about territory D, the northern  28 Tsabux territory, Tsim Gwi Gaganwit -- if Your  29 Lordship could keep that map open.  If Your Lordship  30 has Lloyd Morrison's map which is Exhibit 418.  31 MR. RUSH:   Are you referring the witness to the affidavit?  32 MR. MACKENZIE:  Yes, please.  I am just hanging on until His  33 Lordship is finished.  34 THE COURT:  Are we going to the affidavit?  35 MR. MACKENZIE:  Yes, My Lord, we are speaking about the northern  36 Tsabux territory, territory D?  37 THE COURT:  Yes.  38 MR. MACKENZIE:  39 Q    At paragraph 24 in your affidavit you say that this  40 territory D is claimed by Tsabux, correct?  Yes.  And you say that also in paragraph 25, don't you,  your informants told you that the territory belongs  to Tsabux, correct?  Yes.  And paragraph 29 you say that the boundary has  remained the same throughout your lifetime, don't  41  A  42  Q  43  44  45  A  46  Q  47 5489  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 you?  2 A    Yes.  3 Q    Well, in fact, that territory is claimed by Jeffrey  4 Harris Sr., Luus, L-u-u-s, wasn't it?  5 A    I don't know anything about it.  6 Q    I refer you to Exhibit 3418, the map.  Lloyd  7 Morrison seems to say on this draft map that that  8 territory D is Luus' territory, but you disagree  9 with that, I take it?  10 A    Well, on the same area where Tsabux is?  11 Q    Yes.  12 A    Yes, I disagree with this one.  13 THE COURT:  Well, does that show that, Mr. Mackenzie?  Certainly  14 the area north of E/G is shown as belonging to Luus,  15 but I don't know where Luus' eastern boundary is  16 said to be.  There is a vertical line running down  17 to intersect with Waiget's east/west boundary.  18 Wouldn't territory D be east of that vertical line?  19 MR. MACKENZIE:  If I may say, My Lord, the eastern territory of  20 the boundary is shown as a heavy black line coming  21 down from the top of the map.  22 THE COURT:  Yes, almost vertical.  23 MR. MACKENZIE:  Yes.  24 THE COURT:  And if Tsabux, territory D, as shown on Exhibit 379  25 is correct, well, wouldn't that territory be east of  26 the easterly boundary of Luus' territory.  27 MR. MACKENZIE:  Yes.  Well, then that is possible, My Lord.  If  28 possible, that would be Wii gaak's territory as  29 shown on this map.  That is W-i-i g-a-a-k.  30 THE COURT:  Yes, that might be.  If it is intended to show those  31 boundaries because this map really is intended to  32 show Wiigyet's territory, is it not?  33 MR. MACKENZIE:  Yes, it does, My Lord, and it also shows the  34 neighbours, of course.  35 MR. RUSH:   Well, My Lord, that is not what the affidavit says  36 despite my friend's assertion.  What the affidavit  37 says under 59C:  What are the boundaries of your  38 house's territory.  The approximate boundaries of  39 that territory are included in that which is set out  40 in schedule C.  And I take it to be the heavy black  41 line.  42 THE COURT:  Yes.  43 MR. RUSH:   The territory encompassed within the heavy black  44 line.  45 THE COURT:  Yes.  Of course the northern territory here in  46 Exhibit 4 is different from -- rather, the northern  47 boundary is different from the northern boundary of 5490  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 Waiget's territory shown on Exhibit 379, is it not?  2 MR. MACKENZIE:  Yes.  3 THE COURT:  One runs north and the other one runs either east or  4 southeast?  5 MR. MACKENZIE:  Well, My Lord, perhaps without taking up any  6 time of Your Lordship's, I can refer you to Luus'  7 map that has the boundaries.  8 THE COURT:  Shall we do that after the recess?  9 MR. MACKENZIE:  Yes, My Lord.  10 THE REGISTRAR:  Order in court, we will take the morning recess.  11 (PROCEEDINGS ADJOURNED at 11:15)  12  13  14  15  16 I hereby certify the foregoing to  17 be a true and accurate  18 transcription of the proceedings  19 herein, transcribed to the best of  20 my skill and ability.  21  22  23 LISA REID, OFFICIAL REPORTER  24 UNITED REPORTING SERVICE LTD.  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47        (PROCEEDINGS RECONVENED PURSUANT TO THE MORNING BREAK) 5491  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1  2 THE REGISTRAR:  Order in court.  3 THE COURT:  Mr. Mackenzie.  4 MR. MACKENZIE:  My lord, in my submission it's a bit  5 inconvenient to keep opening up these large maps,  6 so, my lord, I have -- I wish to hand up to your  7 lordship a summary of these maps, which I provided  8 to my friends some time ago, that will -- perhaps  9 I'll describe it, my lord.  10 THE COURT:  Thank you.  11 MR. MACKENZIE:  I'm handing up one for your lordship and one for  12 the witness.  13 THE COURT:  Thank you.  14 MR. MACKENZIE:  This is of the southern territories.  My lord,  15 perhaps I should describe this before we go any  16 further with it.  The base map, my lord --  17 THE COURT:  Yes.  18 MR. MACKENZIE:  The base map is a — is the government  19 topographic map at a scale of 1 to 250,000.  And  20 your lordship can see Kisgagas in the middle of that  21 Indian reserve.  I'm instructed it's a similar scale  22 to the map that is behind map B.  But, at any rate,  23 that's a government map at the base.  And then the  24 next overlay is an overlay of the interrogatories  25 maps, which your lordship -- which have been  26 submitted this morning.  2 7 THE COURT:  Yes.  28 MR. MACKENZIE:  For example, Luus and Wiigyet and Wiigaak.  2 9 THE COURT:  Yes.  30 MR. MACKENZIE:  Wiigyet, W-i-i-g-y-e-t, and Wiigaak,  31 W-i-i-g-a-a-k.  32 Now, my lord, what I can say about this -- I'm  33 looking at the overlay of the interrogatories -- and  34 I'm mindful of your lordship's comments last week  35 about bold and confident assertions, but, my lord, I  36 am advised that this overlay showing interrogatories  37 maps was prepared by cartographers from the  38 interrogatories maps, which your lordship has marked  39 as exhibits this morning.  4 0 THE COURT:  Yes.  41 MR. MACKENZIE:  Now, the next overlay, my lord, is from the  42 Plaintiffs' trial Exhibit 5, which your lordship  43 will see -- your lordship is aware this is Exhibit 5  44 with all the territories, the internal boundaries.  4 5 THE COURT:  Yes.  46 MR. MACKENZIE:  Now, that's an exhibit in this trial, my lord.  47 And this is a -- 5492  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 MR. RUSH:  For identification.  2 MR. MACKENZIE:  For identification.  3 THE COURT:  Sure.  4 MR. MACKENZIE:  This is a reproduction of that — that map,  5 Exhibit 5, onto this base.  6 THE COURT:  Yes.  7 MR. MACKENZIE:  And the final overlay, my lord, this is  8 something that was done from the description in Mr.  9 Morrison's affidavit.  I don't rely on it except in  10 the most general way as an aide-memoire.  Because of  11 the nature of the description in Mr. Morrison's  12 affidavit, I'm instructed it was a little difficult  13 to put -- the boundaries don't show up exactly the  14 same as Mr. Morrison's map B, Exhibit 379, but I  15 think there is a fair degree of coincidence.  But  16 that's not the primary use of this document.  This  17 will be useful to show the -- the large  18 interrogatories maps and Exhibit 5.  19 THE COURT:  Yes.  20 MR. MACKENZIE:  So —  21 THE COURT:  All right.  22 MR. MACKENZIE:  So, my lord, we —  23 THE COURT:  Now, which one shows the interrogatory maps?  That's  24 the first overlay?  25 MR. MACKENZIE:  Yes, the first overlay.  2 6 THE COURT:  Yes, yes.  All right.  27 MR. MACKENZIE:  And that's what we were referring to, my lord.  28 We were about to pull out the Luus map, which is  29 Exhibit 417.  And, my lord, that Luus map is  30 reproduced on this -- this aide-memoire that I've  31 handed up to your lordship.  32 THE COURT:  Yes.  All right.  Well, I suppose, if required, you  33 could prove this, could you, Mr. Mackenzie?  34 MR. MACKENZIE:  Yes, my lord.  I sent this to my friends some  35 time ago.  36 THE COURT:  All right.  What use do you propose to make of it?  37 MR. MACKENZIE:  Well, my lord, I am using this to — in my  38 cross-examination on the affidavit to show the  39 various opinions on the boundaries and the  40 territories referred to in Mr. Morrison's affidavit,  41 which differ from his -- his assertions in the  42 affidavit.  43 THE COURT:  Yes.  Well, all right.  Do you have any submission,  44 Mr. Rush?  45 MR. RUSH:  It can't be an exhibit, my lord.  It's not proved,  46 and if it is going to be proved, it has to be proved  47 with some greater certainty about the lines on these 5493  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 maps than has been given to you.  The lines here are  2 said to be taken from the various maps, and I  3 haven't compared them, nor has our cartographer  4 compared them, and I -- I don't know that it can be  5 anything more to you than just referring to it.  I  6 don't know that there is any difficulty in  7 particular in your referring to the larger maps, but  8 if there is, then I don't see --I don't have any  9 problem in your referring to it.  I don't think it  10 can be exhibited or have any other higher status  11 than something that you can refer to as a way of  12 avoiding pulling out the maps in the pockets.  13 THE COURT:  Well, what would be wrong with Mr. Mackenzie putting  14 this to the witness on his undertaking to call a  15 cartographer if required in order to prove it and  16 asking the witness if it isn't true that this  17 territory belongs as shown here, or perhaps giving  18 the source of that assertion, and the witness either  19 agreeing or disagreeing in preference to laboriously  20 going through the large maps and showing them to  21 him?  You see, I think Mr. Mackenzie's problem is  22 simply that he probably feels some obligation to put  23 the burden of his case to the principal witnesses of  24 the Plaintiff, but does he have to laboriously go  25 through the process or can he put a compendious  26 collection of maps to this witness and give him a  27 chance to agree or disagree and go on to something  28 else?  29 MR. RUSH:  Well, you have to be satisfied firstly that this is a  30 representation that -- and as well --  31 THE COURT:  That's fair to put to the witness.  32 MR. RUSH:  That's fair to put to the witness.  33 THE COURT:  I would accept counsel's assurance on that.  34 MR. RUSH:  Well, the only trouble with that, my lord, is that  35 this is all in English, you see, and the concern is  36 that it's always easy to make the assumption that  37 because there's a base map in English that therefore  38 the witness is readily going to know all the places  39 and as well the lines that are drawn here by someone  40 who I suspect is an English-speaking person and that  41 therefore the witness is in as equal a position to  42 make a judgment about the lines as was the person  43 who drew them.  Now, I don't think you can make that  44 assumption.  45 THE COURT:  Well, I've never thought that a party to litigation  46 is in any better or worse position, with regard to  47 these matters, merely because he's either Plaintiff 5494  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 or Defendant, and that with the assurance of counsel  2 I've never thought there was a problem with allowing  3 matters to be put to a witness for the purpose of  4 giving him an opportunity to agree or disagree, in  5 short, to satisfy the obligation a party has to put  6 the burden of his case to the principal witness for  7 the other side, and that being so, it seems to me  8 that that might be a more convenient way of doing  9 these things than what has been -- than the practice  10 Mr. Mackenzie has been following with this witness  11 up to now.  But I think that perhaps I should leave  12 it to Mr. Mackenzie to decide how to conduct his  13 cross- examination.  I agree with you, Mr. Rush,  14 that I don't think this document can be marked as an  15 exhibit at this time, but if it's put to the witness  16 and he agrees or disagrees with it or is able or  17 unable to deal with it in any way, then it seems to  18 me if counsel say that they are going to prove it,  19 then it may be marked as an exhibit for  20 identification and we can then go on to something  21 else.  I'll leave it to you, Mr. Mackenzie, to  22 decide how you want to proceed.  23 MR. MACKENZIE:  Yes, my lord.  I'm prepared to say that our  24 cartographer will be called to prove this -- this  25 map -- these maps and overlays.  I have to qualify  26 that with respect to the final overlay the  27 territories described in the affidavit, my lord,  28 because the dotted lines on that overlay indicate  29 where the cartographer was faced with a description  30 saying unnamed on government maps --  31 THE COURT:  Yes.  32 MR. MACKENZIE:  — and so that our cartographer, I'm instructed,  33 put the lines in as best he could to give an idea of  34 the area.  35 THE COURT:  Well, that's a matter of evidence, and his evidence  36 may fall short or may be sufficient, or there may be  37 some middle ground.  I'm going to leave it to you,  38 as I say, how you're going to proceed.  39 MR. MACKENZIE:  Thank you, my lord.  And so, my lord, since we  40 will call a cartographer required to prove this map,  41 I submit it as an exhibit for identification.  42 THE COURT:  Well, I don't think that can be done until you've  43 put it to the witness to see what he says about it.  44 MR. MACKENZIE:  Yes, my lord.  45 THE COURT:  If you're going to put it to him.  46 MR. MACKENZIE:  Now, my lord, we were talking about territory D.  4 7 THE COURT:  Yes. 5495  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 MR. MACKENZIE:  And perhaps that could be put before the  2 witness, please, the overlays that -- of the  3 southern territories with the -- and if he could  4 have map B in front of him as well, Exhibit --  5 THE COURT:  37 9.  6 MR. MACKENZIE:  7 Q   -- 379.  8 Now, referring to your Exhibit 379, map B, Mr.  9 Morrison --  10 A   B here.  11 Q   -- you say that -- I'm sorry, do you have that?  You  12 say that Dam Xsu wii wiltxwt is on the border of  13 Tsabux northern territory?  14 A   Yes.  15 Q   And now referring to the overlay to which I've just  16 directed you, can you agree with me that on that map  17 Dam Xsu wii wiltxwt is on the border of Luus and  18 Wiigyet, on the map with the overlay in front of  19 you?  20 A   This is different.  21 Q   I may be -- it's either on the border or right inside  22 that territory, isn't it?  23 A   This is different here.  24 Q   Yes.  25 A   This is different.  26 Q   I'm going to -- could you point out where that lake  27 is, please, on this map that I have in front of you?  28 A   I can't see that.  I haven't got no glasses with me.  29 But I can tell here this is all different here.  30 Q   Well, can you tell me where the lake is, please?  31 A  Well, it's somewhere around here.  I couldn't say.  32 With my glasses I can point it here, where it is  33 right here.  34 Q   You're pointing to map B?  35 A   Yeah.  It's in the corner of that Xsu wii wiltxwt  36 place.  37 MR. MACKENZIE:  Yes.  Fine.  Well, perhaps, Mr. Rush — the  38 witness pointed to the intersection of Luus' eastern  39 boundary and Wiigyet's northern boundary and said  40 that he thought that the lake was there.  Is that a  41 fair summary of his evidence?  42 MR. RUSH:  It seems to be.  Is this where you pointed?  43 THE WITNESS:  Yeah, it's — I don't have my glasses.  It doesn't  44 show anything on here.  45 THE COURT:  Well, really all you're suggesting to the witness,  46 Mr. Mackenzie, is that the northern territory of  47 Tsabux, D on Exhibit 379, is not a faithful 5496  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 representation of the history of the Gitksan people  2 insofar as these territories are concerned?  Isn't  3 that what you're saying to him?  4 MR. MACKENZIE:  Yes, my lord.  5 THE COURT:  You can prove what other people have said in their  6 affidavits and interrogatories in other ways.  7 MR. MACKENZIE:  Yes.  8 THE COURT:  But, in fairness, it seems to me all you have to do  9 it put it to him that Tsabux doesn't have a  10 territory such as the one shown here and that that  11 area is really claimed by Luus and Wiigyet.  12 MR. MACKENZIE:  Well, my lord —  13 THE COURT:  Isn't that what you're suggesting to him?  14 MR. MACKENZIE:  Yes.  I think that was the first question that I  15 put to the witness, but I accept your lordship's  16 comments.  17 THE COURT:  You may well have put it to him.  I'm not keeping  18 everything memorized.  19 MR. MACKENZIE:  No, my lord.  2 0 THE COURT:  But you do it any way you want.  21 MR. MACKENZIE:  Thank you.  22 THE COURT:  I just don't think that you have to laboriously, in  23 a case like this, go through chapter and verse when  24 you're really suggesting that the witness's evidence  25 is incorrect --  26 MR. MACKENZIE:  Yes, my lord.  27 THE COURT:  -- and not in keeping with what other evidence there  28 is and which will be before the court.  29 MR. MACKENZIE:  Thank you, my lord.  I'll move on.  Mr. Morrison, I'm suggesting to you that that  territory D, which is shown in your -- in your  sketch map B, has in fact been claimed by Jeffrey  Harris, Luus.  Do you agree with that?  You mean in the northern country?  Yes.  Well, I'm only dealing with this, and it's -- this is  why I know this is what you saying is -- is -- it's  claimed, this area.  Yes.  You're talking about the D, area D, the northern  Tsabux?  Tsabux's territory.  It's claimed by?  Tsabux.  Yes.  That's true, this one here.  So you say it's not --  30  Q  31  32  33  34  35  A  36  Q  37  A  38  39  40  Q  41  42  A  43  Q  44  A  45  Q  46  A  47  Q 5497  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 A   I didn't say that around that area.  It could be  2 claimed by the other, which I don't speak on behalf  3 of them.  I've only got permission for these people  4 here to speak on behalf of that.  5 THE COURT:  But what you're saying, Mr. Morrison, is that this  6 first overlay, which divides up most of this  7 territory between Luus, Wiigyet, W-i-i-g-y-e-t, and  8 Wiigaak, W-i-i-g-a-a-k --  9 THE WITNESS:  Urn hum.  10 THE COURT:  -- isn't an accurate description of the territorial  11 claims of the people for whom you speak?  12 THE WITNESS:  Yes.  And the only part of here you were referring  13 about, Luus's, I know was Luus in there.  But not  14 right up to this boundary here.  That's what I'm  15 saying.  16 MR. MACKENZIE:  17 Q   Is that Wiigaak's territory you're referring to?  18 A   You're referring Tsabux.  This is what I'm talking.  19 Q   Is that Wiigaak territory?  20 A   No, that's — that's — that's Wolf Clan.  21 Q   Yes.  Wiigaak is Wolf Clan, isn't it?  22 A   No, Tsabux.  That's on the corner.  That's what you're  23 referring to.  24 Q   Yes.  We'll get this straight.  You're pointing to map  25 B, and you're pointing to D, the territory of  26 northern Tsabux, correct?  That's what you're  27 pointing to?  28 A   Yeah, this Wiigaak on the -- next to -- to Tsabux.  29 Q   So you say that Wiigaak is next to Tsabux?  30 A   Yes, right.  31 Q   Yes.  So Tsim -- I'm sorry -- Tsim Gwi Daganwit, you  32 say, is not Wiigaak territory?  33 A   No, it's Tsabux's.  34 Q   Thank you.  Tsim Gwi Daganwit is not Luus's territory?  35 A   No.  36 Q   All right.  Thank you.  Now, you took the helicopter  37 flight to this territory in 1983, that is, you  38 landed just at the northern tip of Shelf Ridge,  39 didn't you?  40 A   Yes.  41 Q   You disagreed on the date.  You think it was later  42 than that, don't you?  43 A  Well, it could be that date.  I just didn't keep up  44 that date that time.  45 Q   All right.  When you're there during your helicopter  46 trip, you described the territories for Neil  47 Sterritt, didn't you? 549?  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 A   Yes.  2 Q   Now, at that time you didn't know who was on the other  3 side of Xsu wii wiltxwt, did you?  4 A  Well, I did point it there.  5 Q   But you didn't know who owned the territory, did you?  6 A   No, I didn't point it.  I pointed to Xsu wii wiltxwt,  7 who owns this, the only question that they asked me  8 at that time.  9 Q   You didn't know who owned the territory but -- on the  10 other side?  11 A   No, I didn't say at that time.  12 Q   Well, Neil Sterritt asked you, "Who's on the other  13 side of that boundary," and you said, "I don't  14 know."  Do you remember saying that?  15 A   That's what I say.  16 Q   Yes.  And you also said, "I had an idea but it's too  17 dispute in that so we'll just have to view that."  18 Do you remember saying that?  19 A   Yes.  20 MR. MACKENZIE:  Now, referring —  21 THE COURT:  Just a moment, please.  22 MR. MACKENZIE:  Sorry, my lord.  23 THE COURT:  The territory that you said you didn't know who it  24 belonged to was the territory north of Chipmunk  25 Creek, was it?  26 MR. MACKENZIE:  No.  27 THE COURT:  No.  I'm sorry.  28 MR. MACKENZIE:  We're talking about —  29 THE COURT:  It's — is it this X-s-u w-i-1 w-i-1-t-x-w-t?  30 MR. MACKENZIE:  Yes, my lord.  31 THE COURT:  Thank you.  Just a moment while I write that down,  32 please.  All right.  33 And you said you had an idea?  34 THE WITNESS:  Yes, but he didn't —  35 THE COURT:  But it was disputed?  36 THE WITNESS:  Yeah.  This is given specific question.  There's  37 many areas behind, north of that place.  This is  38 what I mean.  There's a lot of place in there, and  39 he had to give me the specific place what he was  40 talking about because there's Indian name on this  41 territory, and they have to give me the name of the  42 territory, name.  There's a lot of places there  43 where you can point it.  44 THE COURT:  Were you referring to a reference in the topographic  45 survey notes?  46 MR. MACKENZIE:  No, I wasn't, my lord.  I was referring —  47 THE COURT:  All right. 5499  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 MR. MACKENZIE:  No, I wasn't, my lord.  2 THE COURT:  All right.  Thank you.  3 MR. MACKENZIE:  But I do have an excerpt from the Plaintiffs'  4 document 3877, a video tape of that heli-flight, and  5 that's what I was referring to, my lord.  But I  6 haven't put that in evidence.  7 THE COURT:  Yes.  All right.  8 MR. MACKENZIE:  9 Q   Now, did you tell us on Friday or -- Friday that you  10 didn't know Charles Stevens?  11 A   I did stated that.  But I know them.  12 Q   You do know him?  13 A   Yeah.  I stated couple times.  You asked me a couple  14 questions.  15 Q   And did you tell me that you didn't know Moses  16 Stevens?  17 A  Well, I did say, yes.  18 Q   Which is it?  Do you know him or do you not know him?  19 A  Well, just -- I know him.  20 Q   I see.  Now, looking at the Barker Creek territory,  21 which is territory C -- this is shown on sketch map  22 A, Exhibit 378.  Okay.  You recall that you said  23 that -- we discussed that this morning -- that this  24 territory C was turned over to Jack Wright?  25 A   Yes.  26 Q   Yes.  And you recall you said that that happened  27 before you were born?  28 A   Yes.  29 Q   Yes.  And in your affidavit at paragraph 21, under  30 Rivers and Creeks, number 4, you say that Cutfoot  31 Creek is in that territory C, don't you?  32 A   Yes.  33 Q   Now, you've known that for many years, haven't you?  34 A   Yes.  35 Q   And you've also told me that you say the boundaries of  36 these territories have remained the same throughout  37 your lifetime at least, haven't they?  38 A   Yes.  39 Q   Yes.  Well, in 1979 you told Neil Sterritt that that  40 creek was in Wii minoosik territory, didn't you?  41 A   Yes.  42 Q   Yes.  You said that Wii minoosik owned that creek,  43 didn't you?  44 A   Yes.  45 Q   Wii minoosik didn't own that creek in 1979, did he?  46 A   No, sir.  47 Q   Yes. 5500  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 A   You see, it transfer to -- to -- to -- to Ax  2 moogaasxw.  3 MR. MACKENZIE:  Referring to page — volume 4, page 3157.  4 MR. RUSH:  Did you get the name of that person that he said?  5 MR. MACKENZIE:  Did you get the name, my lord.  Jack Wright's  6 name, I think.  7 THE COURT:  I took it to be Jack Wright.  8 MR. MACKENZIE:  9 Q   Yes.  That name that you just said was Jack Wright's  10 name?  11 A   Yes, that's in the House of Wiigaak.  12 MR. MACKENZIE:  The House of Wiigaak.  13 THE TRANSLATOR:  You want me to spell it?  14 MR. MACKENZIE:  No.  15 THE COURT:  Which volume 4 are we looking at?  16 MR. MACKENZIE:  My lord, the small one.  The small black binder,  17 my lord.  18 THE COURT:  Yes.  19 MR. MACKENZIE:  I think your lordship has one volume 4.  3-157,  2 0 my lord.  21 THE COURT:  Yes.  Thank you.  22 MR. MACKENZIE:  23 Q   Now, while we're getting the reference for you, Mr.  24 Morrison, you'll agree with me that you said that  25 Jack Wright was frog -- was Wolf Clan, didn't you?  26 A   Yes.  27 Q   And Wii minoosik is Frog Clan, isn't he?  28 A   Yes.  29 MR. MACKENZIE:  Now, you told Neil Sterritt in June 1979 that  30 this creek was in Wii minoosik's territory, didn't  31 you?  32 MR. RUSH:  Perhaps the name of the -- the Gitksan name should be  33 given.  34 THE COURT:  Give it to me in both languages.  35 MR. MACKENZIE:  Miss Howard, could you read out the name on —  36 at number 7 on that sheet, page 3-157.  37 THE TRANSLATOR:  Xsan Six Moohl Andoo'o, Cutfoot Creek.  38 THE WITNESS:  Xsan Six Moohl Andoo'o.  There's two Xsan Six  39 Moohl Andoo'o.  Which one you're referring to?  40 MR. MACKENZIE:  41 Q   I'm referring to Cutfoot Creek on your map.  42 A   There's two of them.  43 Q   Map A.  And looking at territory C on your map A,  44 Exhibit 378, Cutfoot Creek flows east into the  45 Skeena River, doesn't it?  46 A   Xsan Six Moohl Andoo'o.  Well, that's on the other --  47 towards Tama Chuck Lake. 5501  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 Q   Cutfoot Creek though flows east into the Skeena River,  2 doesn't it?  3 A   The other one flows into the river, Skeena, and the  4 other one flows into Nass River.  5 Q   Okay.  But this creek in area C, Wiigaak's territory,  6 flows east into the Skeena, doesn't it?  7 A   Yes.  8 MR. MACKENZIE:  Now, just another point with respect to  9 territory C.  In your affidavit at paragraph 19,  10 yes, and paragraph 21 -- start with paragraph 21,  11 please, under Rivers and Creeks, number 5.  12 MR. RUSH:  Can you read that?  13 THE WITNESS:  I can't see very good.  14 MR. RUSH:  Perhaps that should just be read to him.  15 THE WITNESS:  I think so.  16 THE COURT:  Paragraph 21.  17 MR. RUSH:  No, just number 5.  18 THE TRANSLATOR:  Xsi Miin Anhl Gii.  19 THE WITNESS:  Oh, yes, that's the northern boundary.  20 MR. MACKENZIE:  That's the northern boundary?  Yes.  Where are your glasses today, Mr. Morrison?  I've lost it, and I couldn't find it.  You lost them over the week-end?  Yeah.  I see.  Yes.  In your map and the affidavit you say  that Barker Creek is the northern boundary of that  territory C; is that correct?  Yes.  Yes.  And you say that it's -- it's on the -- do you  know who owns the territory on the other side of  Barker Creek to the north?  Not at this time.  No.  Well, in 1979 you said that Muut, M-u-u-t —  Muut.  That's — that's east of that.  Yes.  You said that the creek -- Barker Creek was  owned by Muut, didn't you?  No, it's east of that.  And you said Muut owned the land right across Barker  Creek to the mountains between Barker and Cutfoot  Creek, didn't you?  No, it could be mis -- I said that's on -- like over  here you can -- I can tell you where it is right  here.  Right up north of Sim git gii geenix  territory.  That's where Muut is.  Once I taken an  oath maybe they take it wrong on that.  21  Q  22  A  23  Q  24  A  25  Q  26  A  27  Q  28  29  30  A  31  Q  32  33  34  A  35  Q  36  A  37  Q  38  39  A  40  Q  41  42  43  A  44  45  46  47 5502  1  Q  2  3  4  5  A  6  Q  7  A  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Mackenzie  Referring to volume 4, my lord, page 4-36.  Now, the  name you used -- you used another name for Barker  Creek in 1979, didn't you?  It's different from the  name in your affidavit; correct?  Yeah, Xsu luu max sheex'it.  Can I have the spelling of that, please?  That's north of that.  I mean east, east of that.  8 That's north of Sim git gii geenix territory.  9 That's where Xsu luu max sheex'it is.  10 THE COURT:  Which is north and east of what?  11 THE WITNESS:  Of — you know — where Chipmunk Creek is.  12 THE COURT:  North-east of Chipmunk Creek?  13 THE WITNESS:  Yes.  It's next to — like —  14 THE COURT:  Yes.  15 THE TRANSLATOR:  Xsu luu max sheex'it, X-s-u 1-u-u m-a-a-x  16 s-h-e-x-i-t.  17 THE COURT:  I'm sorry, I'll have to have it again because I  18 copied it off page 4-36, and it's apparently a  19 different spelling.  Can you give it to me again?  20 X-s-u 1-u-u, and where did you go from there?  21 THE TRANSLATOR:  M-a-x.  22 THE COURT:  M-a-x.  Yes.  23 THE TRANSLATOR:  S-h-e-e-x-i-t.  Mine might not be the right  24 spelling.  25 THE COURT:  Well, one of them may not be the right spelling.  26 MR. MACKENZIE:  27 Q   And did you say that Muut was in the Wolf Clan?  28 A   Yes.  29 Q   And did you say to Neil Sterritt in June 1979 that  30 Muut owned the territory to the mountain between  31 Barker and Cutfoot Creeks?  32 A   Not Cutfoot Creek.  It's on -- it started from Xsi  33 maxhla Saa Giiblax.  You see it from there, and  34 there's -- chief's name is Sim git gii geenix.  And  35 next to Sim git gii geenix is Muut.  36 MR. MACKENZIE:  Okay.  Hold on, please.  You have to get the  37 spelling.  38 THE TRANSLATOR:  For which one?  39 MR. MACKENZIE:  Can I have the spellings, Madam Reporter?  40 THE COURT:  Well, I think we ought to get it now.  I don't need  41 it for my notes, but the transcript requires it, and  42 what the witness was saying was the name of a chief  43 whose territory was on this side of Muut's  44 territory.  Can you give us the name of that chief  45 again?  46 THE WITNESS:  On Muut's territory?  47 THE COURT:  No, the one before you get to Muut's territory. 5503  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 THE WITNESS:  Well, first one is Xsi maxhla Saa Giiblax Creek.  2 THE COURT:  That's the one.  3 THE WITNESS:  Then go from there north.  That's Sim git gii  4 geenix.  And from Sim git gii geenix boundaries  5 that's Muut's territory.  6 THE COURT:  Sim git gii geenix is the one that the record reads.  7 MR. MACKENZIE:  Yes, I think the reporter has that, my lord.  8 THE COURT:  All right.  9 MR. MACKENZIE:  10 Q   Okay.  Referring to your territory B.  Now, you showed  11 the boundary of your territory B, that is Wii  12 minoosk's territory, you show that on your map A,  13 don't you?  You've got the territory on there;  14 correct?  15 A   Yes.  16 Q   And you also describe it in paragraph 12 of your  17 affidavit, don't you?  18 A   Yes.  19 Q   And you -- you say that -- you say that that boundary  20 has remained the same throughout your lifetime,  21 don't you?  22 A   Yes.  23 Q   Yes.  Well, in fact, the boundary has been changed,  24 hasn't it?  25 A  What changed?  26 Q   The boundary was changed in your lifetime, wasn't it?  27 A   No.  28 Q   I'll put it more directly to you.  The boundary was  29 changed four years ago, wasn't it?  30 A  Who changed it?  31 Q   And you don't know anything about that?  32 A   I don't.  33 Q   No.  Now, the boundary was moved from the Tuudaadii  34 Creek area south to the height of land at Diagonal  35 Mountain, wasn't it?  36 A  Are you talking about internal boundary or outside  37 boundary?  38 Q   External boundary.  39 A   Yes.  You see, this hasn't been changed.  40 Q   It hasn't been changed?  41 A   It hasn't been changed.  42 Q   That territory extended up to Tuudaadii Creek in 1984,  43 didn't it?  44 A  Are you talking about this territory?  You say you  45 talking about this territory?  46 Q   Yes, territory B.  47 A   Yes.  Okay.  Right. 5504  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 Q   The boundary was along Tuudaadii Creek in 1984, wasn't  2 it?  3 A   Yes.  4 Q   Yes.  And it was moved south, wasn't it?  5 A  Well, I didn't know it was moved.  It's -- it's the --  6 the same.  They cover it up, the history that I know  7 that -- it's still the same.  It's never been  8 changed.  9 MR. MACKENZIE:  It's been moved down south to the height of land  10 through Diagonal Mountain, which is on this map B --  11 correction -- map A, isn't it?  Does your lordship  12 see Diagonal Mountain on that map B -- I'm sorry --  13 map A?  That's the mountain -- that's the mountain  14 known as Wii Guux, my lord.  That's up in the upper  15 north-east corner.  16 THE COURT:  Yes, I have it.  Yes.  You're talking about the  17 north boundary of territory B?  18 MR. MACKENZIE:  Yes, my lord.  19 THE COURT:  All right.  20 MR. RUSH:  Perhaps that could be just pronounced by Miss Howard.  21 THE TRANSLATOR:  Wii Guux.  22 MR. MACKENZIE:  Wii Guux sounds —  2 3 THE TRANSLATOR:  Wii Guux.  24 MR. MACKENZIE:  Do you know the boundary that goes through Wii  2 5 Guux now?  26 THE TRANSLATOR:  Skanist.  27 THE WITNESS:  Oh, yeah.  Pronounce it again.  28 THE TRANSLATOR:  Wii Guux, Skanist.  29 MR. MACKENZIE:  30 Q   You know the boundary that goes through that mountain  31 now?  32 A   Yes.  33 Q   And did you agree with me that it used to go  34 through -- along Tuudaadii Creek?  35 A   That's where it is.  36 Q   I see.  You don't know there's a difference between  37 mountain and Tuudaadii Creek?  38 A  Well, there is a difference in different mountains.  39 MR. MACKENZIE:  Yes.  Well, my lord, we went into this on  40 Friday, but, my lord, the documents relating to this  41 matter are found at tab 30 of the blue binder, which  42 is volume 2 in these proceedings.  43 THE COURT:  We didn't look at this on Thursday, did we, or last  44 week, did we?  45 MR. MACKENZIE:  Yes, my lord.  It's tab 30C, if your lordship  46 will recall --  47 THE COURT:  Oh, yes. 5505  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 MR. MACKENZIE:  It's —  2 THE COURT:  We did.  3 MR. MACKENZIE:  It shows the boundary was moved south in that  4 area down to where it is now.  5 We didn't mark it as an exhibit, my lord, because,  6 as your lordship will recall, it was a comparison of  7 the boundary in 1984 and as it is now as shown in  8 the trial record scheduled to the Statement of  9 Claim.  And for your lordship's notes, your lordship  10 may also wish to refer to, not just now, but to that  11 map we looked at this morning, the large map which  12 is at tab 12 of the grey binder, volume 3.  13 THE COURT:  This is tab 30.  14 MR. MACKENZIE:  C, my lord, of the blue binder.  Volume 2 you're  15 looking at now, my lord.  16 THE COURT:  So tab 33 shows coloured the area that used to be  17 claimed?  18 MR. MACKENZIE:  Tab 30C, my lord.  19 THE COURT:  Yes.  20 MR. MACKENZIE:  Yes.  21 THE COURT:  Yes.  And the next one you were referring me to?  22 MR. MACKENZIE:  The next one is, for your lordship's  23 convenience, in the grey binder, volume 3.  2 4 THE COURT:  3 0 tab 3.  25 MR. MACKENZIE:  No, volume 3, tab 12, my lord.  2 6 THE COURT:  Oh.  27 MR. MACKENZIE:  The grey binder, volume 3.  2 8 THE COURT:  Grey, yes.  Twelve.  29 MR. MACKENZIE:  Your lordship will recall we went over this this  30 morning looking at the various places.  It's  31 Canada's map, a copy of Canada's map, my lord.  32 THE COURT:  Oh, sorry.  33 MR. MACKENZIE:  Your lordship has it in front of him.  34 THE COURT:  Yes.  35 MR. MACKENZIE:  I should have referred to that to start off  36 with.  Now, your lordship will see there also where  37 the boundary was moved south in the Tuudaadii Lake  38 area -- Tuudaadii Creek?  39 THE COURT:  Yes.  Thank you.  40 MR. MACKENZIE:  41 Q   And -- yes.  Now, the Stikine people own the territory  42 north of the northern boundary of Wii minoosk, don't  43 they?  44 A  Which Wii minoosk's territory?  45 Q   Territory B, the Andap Matx territory.  46 A   Can you hand me a pen there, please?  47 THE COURT:  I'm sorry, Mr. Mackenzie, did you say the Stikine 5506  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 people --  2 MR. MACKENZIE:  Yes.  3 THE COURT:  — own the territory north of Andap?  4 MR. MACKENZIE:  Andap Matx territory.  This territory B, this is  5 the territory we're referring to now.  6 THE COURT:  Well, on Exhibit 378 the territory north of Andap  7 Matx is the territory of Waiget.  8 MR. MACKENZIE:  Well, my lord, I'm speaking about moving the  9 boundary down south, the external boundary down  10 south, so it may be more accurate to say north  11 north-east, my lord.  12 THE COURT:  All right.  13 MR. MACKENZIE:  Or north-east.  14 THE COURT:  Oh, I see.  Well, you're talking about the coloured  15 area in the map we just looked at?  16 MR. MACKENZIE:  Yes, my lord.  17 THE COURT:  In —  18 MR. MACKENZIE:  30C.  19 THE COURT:  3 0C.  2 0 MR. MACKENZIE:  Volume 2.  21 THE COURT:  The blue volume.  When you talk about the Stikine  22 people, we haven't heard that description before.  23 Are you talking about Gitksans, or are they a  24 different nation?  25 MR. MACKENZIE:  I'm speaking about a different nation, my lord.  26 THE COURT:  All right.  Do you agree with that, Mr. Morrison,  27 that north-east of this territory B of Wii minoosk  28 is Stikine?  29 THE WITNESS:  No.  It's — it's only — only shows here where  30 the Waiget and that's only thing that I know.  I  31 never heard about Stikine owns this northern here.  32 Maybe there is but in some areas way back there, but  33 not in this area here.  34 THE COURT:  When you say Stikine, do you understand that to be  35 included within Carrier Sekani?  36 MR. MACKENZIE:  No, my lord.  37 THE COURT:  Thank you.  38 MR. MACKENZIE:  Who owns the territory to the north-east?  39 MR. RUSH:  My lord, I think it would be very helpful if my  40 friend came over here and pointed to the territory  41 that he means so that -- your lordship had some  42 confusion about it, and I think if my friend wants  43 to know a particular area, he should point it to the  44 witness.  45 THE COURT:  If that's convenient, Mr. Mackenzie, please.  46 MR. MACKENZIE:  47 Q   Yes, it is. 5507  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 I'm referring to map A, which is Exhibit 378, and  2 I'm pointing to the area say just -- just at  3 Tuudaadii Creek just slightly north -- just slightly  4 north-west of Diagonal Mountain.  Can you tell me  5 who owns that territory there?  6 A   I'm pretty sure they're not Stikine.  That's what  7 you're referring to.  8 Q   Yeah.  So you say it's not the Stikine?  9 A   No.  10 Q   Did they used to own that territory?  11 A   I don't think so.  I never heard about it.  12 MR. MACKENZIE:  How about — how about along the boundary of  13 Waiget, W-a-i-g-e-t, territory A at Hoy Lake?  Does  14 your lordship have that, Hoy Lake?  15 THE COURT:  Yes.  16 MR. MACKENZIE:  Do the Stikine own that territory?  17 MR. RUSH:  Mr. Mackenzie is pointing along the western or --  18 excuse me -- eastern boundary, southeastern portion  19 of the Waiget territory.  20 THE WITNESS:  No, I never — I never heard about on this  21 boundary here.  22 MR. MACKENZIE:  23 Q   You're referring to that boundary along the --  24 A   Yes.  25 Q   -- the eastern boundary of territory A?  2 6       A   Yeah.  27       Q   Okay.  You never heard about the Stikine owning that?  2 8       A   No.  29 MR. MACKENZIE:  I refer to volume 4, page 1-97, my lord, please.  30 THE COURT:  What page?  31 MR. MACKENZIE:  32 Q   Page 1-97, my lord.  33 Now, looking at the mountains along the eastern  34 boundary of Wiigyet's territory, in your affidavit  35 you say that those mountains are owned by Wiigyet,  36 don't you, or -- sorry -- they're part of territory  37 A, don't you?  38 A   Yeah, it's Xsi wii wilwxwt.  39 MR. MACKENZIE:  Sorry.  Just before we go on any further, Mrs.  40 Howard, have you got that?  Did you give that to the  41 reporter?  42 THE TRANSLATOR:  Urn hum.  43 MR. MACKENZIE:  44 Q   Have you got it?  The reporter has that, my lord.  45 But that's down south?  That's not up north, that  46 word that you just used, is it?  47 A   No, this one here, that's -- that's the boundary of 5508  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 Xsi wii wilxwt.  2 Q   Okay.  You understand we're talking about territory A  3 on the northern map?  Okay.  Well then, look at 397.  4 Did you tell Neil Sterritt in 1979 that the  5 mountains there west of Hoy Lake used to belong to  6 the Stikine?  7 A   No.  8 Q   No.  9 A  We talk about other areas, not specific in this area,  10 about Stikine people.  We always talk about  lot of  11 things in those days, and we always referring to  12 other areas, but not specific in those areas you are  13 talking about.  14 Q   And David Green was there?  15 A   Yes.  16 Q   Yes.  Now, just continuing on, does your lordship have  17 that reference?  18 A   Yes.  19 THE COURT:  Yes.  I think you called it 3-97, but you meant  20 1-97.  21 MR. MACKENZIE:  Sorry, my lord, page 1-97.  22 THE COURT:  Yes.  23 MR. MACKENZIE:  24 Q   Now, Mr. Morrison, you haven't been up to that  25 territory B for many years, have you?  26 A  Which?  27 Q   Wii minoosik's territory.  28 A   Xsi maxhla sii Giiblax?  29 Q   No, no, Wii minoosik territory.  30 A   Yes.  31 Q   You haven't been there for many years?  32 A   No.  33 Q   The last time you were there was on your helicopter  34 flight, wasn't it?  35 A   Yes.  36 Q   And that was in about 1983?  37 A   Yes, somewhere around there.  38 Q   Yes.  You really haven't been there for over 40 years  39 other than that flight, have you?  40 A   No, it's about -- before 1952.  I remember that --  41 when my brother was up there and my dad was up there  42 in 1952, and before that I was there before 1952.  43 Q   Yes.  So I take it you're not -- you're not -- you  44 don't know much about what happened in the 1970's in  45 that area, do you?  46 A   Not in that area.  47 Q   No.  But you do know there's a B.C.R. right of way 5509  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 along the river there?  2 A   Yes.  3 Q   Along the Skeena River.  And you do know that there  4 are -- there is rail laid right to Mosque River?  5 A   Yes.  6 Q   And you also know that there is a 5,000 foot airstrip  7 at Mosque River?  8 A   Yes.  9 Q   And you know that in 1975 there was a camp there of  10 150 to 200 men building the railway?  11 A   Yes.  12 MR. MACKENZIE:  Yes.  13 THE COURT:  When, please?  14 MR. MACKENZIE:  1975, my lord.  15 THE COURT:  Where the Mosque River runs into the Skeena is where  16 the airstrip is, is it?  17 THE WITNESS:  Yes, that's Xsi Gwin Hliiyuun you were talking  18 about.  19 MR. MACKENZIE:  20 Q   Yes.  Can we get the spelling for that?  Yes, the  21 reporter has that.  That's the Mosque River, my  22 lord, at the confluence.  23 Now, were you aware that there were men building  24 the railway up there about 1971 to about 1976?  25 A   Yes.  26 MR. MACKENZIE:  Yes.  27 MR. RUSH:  My lord, perhaps his basis of his knowledge should be  28 ascertained.  29 THE COURT:  Well, I'm not sure, Mr. Rush.  In cross-examination  30 if the witness is in any doubt, yes, but he made the  31 suggestion to the witness, and he readily agreed, so  32 I don't think there's any lack of understanding  33 between them.  I know it's true.  34 MR. RUSH:  Well, apparently the witness does too.  35 THE COURT:  Apparently we both do.  36 MR. MACKENZIE:  37 Q   And were you aware there were regular -- there were  38 daily jet airplane flights into that airstrip every  39 day during those years, during 1975 at least?  40 A  Well, I probably do, but I know them plane up there.  41 Q   Pardon?  42 A   I know the plane up there.  All those airstrip, that's  43 what it's for anyway.  44 THE COURT:  Is it convenient to adjourn, Mr. Mackenzie?  45 MR. MACKENZIE:  Yes, my lord.  46 THE COURT:  Yes.  All right.  Two o'clock, please.  47 THE REGISTRAR:  Order in court.  Court will adjourn until 2:00. 5510  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1  2 (PROCEEDINGS ADJOURNED PURSUANT TO THE LUNCHEON BREAK)  3  4  5  6  7  8  9  10 I hereby certify the foregoing to be  11 a true and accurate transcript of the  12 proceedings herein to the best of my  13 skill and ability.  14  15  16  17 Leanna Smith  18 Official Reporter  19 United Reporting Service Ltd.  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 5511  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1  2  3  4  5  6  7  8  9 1 (PROCEEDINGS RESUMED PURSUANT TO LUNCHEON  ADJOURNMENT)  2  3 THE COURT: Mr. Mackenzie.  4 MR. RUSH: My Lord, before my friend starts, I am prepared to  5 deal with the argument on the question of the  6 admissibility of certain hearsay statements that was  7 sought to be lead from the witness.  Mr. Mackenzie  8 offered you his points of argument this morning.  9 THE COURT: Yes.  10 MR. RUSH: If you want to hear from me, if this is an  11 appropriate time.  12 THE COURT: Is that convenient, Mr. Mackenzie?  13 MR. MACKENZIE:  Yes.  14 THE COURT: Yes, all right.  Thank you, Mr. Rush.  15 MR. RUSH: I guess I should first ask whether Mr. Macaulay has  16 anything further to add to his argument.  17 MR. MACAULAY:  I will reply to submissions, but I think it is  18 for Mr. Rush to make his submissions first.  And  19 depending on what Mr. Mackenzie says, I may have  2 0 some and I may not.  21 THE COURT: I suppose it is your objection, Mr. Rush?  22 MR. MACAULAY:  Yes.  23 MR. RUSH: I thought we had argued it out and we are going back  24 the other way.  2 5 MR. MACAULAY:  I didn't ask that we argue it out again.  I don't  26 know why I should add anything now.  27 MR. RUSH: Very well.  I won't press Mr. Macaulay on the point.  28 Well, the first proposition that I would like to put  29 forward right at the beginning is that the question  30 that was framed by Mr. Mackenzie and objected to by  31 myself is a question that invites a hearsay  32 response.  The question is found at 5448 of the  33 transcript.  34 THE COURT: What volume is that?  35 MR. RUSH: Volume 86.  36 THE COURT: 5480?  37 MR. RUSH: 5448.  38 "Q   As far as you're aware the Nisga'a  39 people are still claiming Bowser Lake  40 hunting ground, aren't they?"  41  42 And it is to that question that the objection was  43 taken.  4 4 THE COURT: Yes. 45 MR. RUSH:   And despite my friend Mr. Mackenzie's attempt to  46 characterize the question as one that is not  47 inviting a hearsay response, I submit that the issue 5512  Proceedings  1 here is whether or not this is a type of question  2 that is a permissible exception to the Hearsay Rule.  3 I say, firstly, that it is a question that invites  4 hearsay and the issue is not whether or not it is  5 hearsay, but whether or not it is a permissible  6 exception to the Hearsay Rule.  7 And as I submitted to you last Friday, it's my  8 submission that the only exception to the Hearsay  9 Rule that would be permitted is what is generally  10 called a reputation exception.  And Your Lordship  11 dealt with this at some considerable length in your  12 reasons for judgment that were delivered by you on  13 June 4th, 1987.  And in those reasons, which I will  14 come to in just a moment, you basically pointed out  15 that the foundation for the exception was twofold,  16 necessity.  Necessity being a requirement of --  17 being a criterion, rather, that is based upon  18 statements made by deceased people.  19 THE COURT:  Yes.  20 MR. RUSH:   And, secondly, the question of trustworthiness.  And  21 that, if I can just broadly state it as those two  22 criteria, emerge from what Your Lordship, back in  23 June of 1987.  Found to be the correct statement of  24 the Common Law Rule in Phipson which is at page 13  25 of your then draft reasons and subsequently your  26 reasons for your decision on reputation at that  27 time.  And this is what you relied on, I believe.  28 The Common Law Rule, quoting from Phipson --  29 THE COURT:  Just a moment.  Oh, yes, I have it, thank you.  3 0 MR. RUSH:  31 "  Declarations made by deceased persons of  32 competent knowledge, ante litem motam, are  33 admissible in proof of ancient rights of a  34 public or general nature.  35 Evidence of this description is  36 frequently included under the general term  37 Reputation; and is admissible for or  38 against the Crown, as well as an ordinary  39 party."  40  41 And then it goes on to state the principle.  42  43 "  The grounds of admission are (1) death;  44 (2) necessity, ancient facts being  45 generally incapable of direct proof; and  46 (3) the guarantee of truth afforded by the  47 public nature of the rights, which tends to 5513  Proceedings  1 preclude individual bias and lessen the  2 danger of misstatements by exposing them to  3 constant contradiction."  4  5 And then you then went on to consider Milirrpum and  6 the application of the law in that case and  7 concluded that evidence of reputation is admissible,  8 providing that those criteria are met.  And, of  9 course, there was an issue about how broadly  10 speaking the reach of the adaawx was.  And I think  11 Your Lordship dealt with that in a subsequent  12 judgment subsequent to submissions made to you last  13 July.  14 But for the particular question that we are  15 faced with here, it's my submission that the  16 evidence that is sought to be led does not in any  17 way meet the criteria of the rule which would be  18 the -- in my submission, the only permissible way,  19 the only permissible exception to the hearsay which  20 it is.  21 Firstly, the question that the -- the question  22 directed to Mr. Morrison was designed to elicit a  23 response from a person who is not deceased.  24 Secondly, although Mr. Mackenzie argues that Wigmore  25 says that reputation results from a general  26 discussion by the whole community, we have no  27 evidence that the Nishga'a form any part of the  2 8 community from which -- from which the reputation  29 springs.  30 The Plaintiffs in this case have been put to  31 the proof of a community which, it is our  32 submission, forms the basis for the admissibility of  33 this evidence and proves the underlying foundation  34 for the exception.  And you do not have before you  35 any parallel proof that the Nishga'a are a community  36 or part of a relevant community such as to give rise  37 to the necessary community within which the  38 public -- within which the discussion of the public  39 nature of the rights would belong.  40 My friend has indicated that in his points of  41 argument in item number 5 that there -- that the  42 whole community, as he said, sifting of possible  43 errors so that a single and definite consensus has  44 been reached in the shape of a common reputation.  45 But I say that that statement is accurate so far as  46 it applies to the Gitksan and Wet'suwet'en in the  47 sense that the common reputation is one common to 5514  Proceedings  1 the Gitksan and Wet'suwet'en, and not one that is  2 common to the Nishga'a in the absence of any direct  3 information or evidence that you have about the  4 nature of the Nishga'a community.  5 My friend Mr. Mackenzie says in his argument  6 that the evidence is not hearsay because it is not  7 tendered for the proof of the statement, but I  8 suggest that the opposite is true.  In fact, what  9 Mr. Mackenzie was seeking to elicit was that there  10 was a common Nishga'a claim; that the Nishga'a  11 people as a group were advancing the claim in  12 respect of Bowser Lake hunting ground; and that they  13 continued to advance the claim with respect to  14 Bowser Lake hunting ground all for the purposes, I  15 say, of proving the truth of those statements and  16 not the fact of the claim.  17 In my submission, in fact the purpose of the  18 question was designed to elicit very specifically  19 from the witness whether or not it was true that the  20 Nishga'a people are still claiming Bowser Lake.  21 Because only if it were true, so the argument would  22 go, would there be a basis for disputing the  23 reputation.  But I say that it is very clearly  24 evidence to come back full circle, very clearly  25 evidence which is hearsay; and therefore, must  26 comply, I say, with the same requirements for an  27 exception to the Hearsay Rule as Your Lordship  28 identified in the -- in your decision of last  2 9 s umme r.  30 And I not only rely upon what Your Lordship  31 said at that time as being the basis for the common  32 law exception, but upon Your Lordship's reliance of  33 Mr. Justice Blackburn's observations in Milirrpum  34 which are again to be found at page 14 of the  35 judgment.  36 THE COURT:  Well, what do you say about the passage that I  37 included just after what you read where I said:  38  39 "Thus I think it was competent for Mr.  40 Goldie to ask, as he did, a question such  41 as, "Isn't it true that you now know of an  42 allegation that this portion of your  43 claimed lands belongs not to your House,  44 but to another House?"  45  46 I said that was an appropriate question to ask.  I  47 don't think I received any adverse or contrary 5515  Proceedings  1 argument on that part of my draft reasons.  2 MR. RUSH:   Well, that -- that issue wasn't addressed.  And I  3 say that if this -- well, firstly, My Lord, we  4 weren't dealing with non-Gitksan.  And, secondly, we  5 weren't dealing with those people who we know to be  6 live speaking people and who could speak to Your  7 Lordship by way of giving direct evidence.  So that  8 question could only be directed at a Gitksan -- to a  9 Gitksan person with knowledge of another deceased  10 Gitksan person whose declarations were contrary to  11 those of declarations that were voiced by the  12 witness.  13 THE COURT:  I thought —  14 MR. RUSH:   And I think — my point I think is quite — can be  15 summed by saying that the question that Your  16 Lordship posed is a question that is pertinent to  17 the relevant community and not pertinent to one that  18 isn't a relevant community.  And I say that the  19 Nishga'a, in the circumstances, are not part of the  2 0 relative community.  21 And I would say that if it were otherwise, a  22 ludicrous situation would result where a very high  23 standard would be required of the Plaintiffs to  24 demonstrate what they say to be their territories  25 and boundaries and genealogical ancestry, whereas a  26 very minimal standard would be required of those who  27 are the detractives, who are those said to be  28 creating an adverse declaration about reputation.  29 And, in my submission, that is contradictory  30 and inconsistent with the very thrust of your  31 Lordship's ruling and what I say is to the proper  32 extent of the purpose of the inception of the  33 Hearsay Rule.  34 THE COURT:  Was the witness -- I'm sorry, not the witness, but  35 the person to whom Mrs. Johnson referred a living  36 person?  The argument or the line of evidence there,  37 as I recall it, was that Mrs. Johnson in her graph  38 with attached particulars said that certain  39 territory, a mountain was in her territory, but the  40 map that she produced at trial excluded that area.  41 And she said that Mr. Sterritt told her that  42 somebody else told him that that territory belonged  43 not to Mrs. Johnson's house but to another house.  44 Mr. Sterritt and the other gentlemen were both  45 alive, as I recall it.  46 MR. RUSH:   Well, I don't think so.  Mr. Sterritt was certainly  47 alive. 5516  Proceedings  1  THE  COURT:  2  MR.  RUSH:  3  4  5  6  7  8  9  10  MR.  MACKENZ  11  12  13  THE  COURT:  14  MR.  MACKENZ  15  THE  COURT:  16  MR.  MACKENZ  17  MR.  RUSH:  18  19  20  21  22  23  24  25  THE  COURT:  26  MR.  RUSH:  27  28  29  30  31  32  33  34  THE  COURT:  35  36  MR.  RUSH:  37  38  THE  COURT:  39  MR.  RUSH:  40  41  THE  COURT:  42  MR.  RUSH:  43  44  THE  COURT:  45  MR.  RUSH:  46  4 7 THE COURT:  You think the other gentlemen was deceased?  If it were otherwise, My Lord, in my submission, it  wouldn't -- in both cases the evidence of Mr.  Sterritt and the evidence of the other person would  be equally inadmissible for the same reasons that I  argued today.  But I cannot recall whether or not  the referenced person in Mr. Sterritt's --  attributed to Mr. Sterritt was someone who was  deceased.  I think it was.  IE:  That appears on page 15 of your reasons for  judgment, Your Honour, at the bottom of the page,  last paragraph.  What?  IE:  Page 15 of your reasons.  I don't have that.  IE:  I have a copy of that.  You said at the bottom of page 15:  "In the evidence of Mrs. Johnson she gave  evidence in chief that Mr. Sterritt, Jr.  told her quite recently of a declaration  made many years ago by a deceased person  to the effect that -- "  It was a deceased person.  "-- a portion of her claimed territory belong  to his House.  She had not previously heard of  this declaration.  Trusting the word of this  deceased, and of Mr. Sterritt, Mrs. Johnson  freely deleted this disputed territory from  the claim of her House."  I'm sorry, what have you just read there "...by a  deceased person"?  Yes.  The passage -- Your Lordship has the reported  judgment?  Yes.  Does Your Lordship have sub-paragraph 2 or Evidence  of Territory, that general heading?  Yes.  And then there is the Common Law Rule followed by a  passage from Milirrpum?  Yes.  And then if Your Lordship just carries on just  after --  Yes, "...by a deceased person". 5517  Proceedings  1  MR.  RUSH:  2  THE  COURT:  3  4  5  6  7  8  9  10  11  12  13  14  MR.  RUSH:  15  THE  COURT:  16  17  18  19  20  MR.  RUSH:  21  22  THE  COURT:  23  MR.  RUSH:  24  THE  COURT:  25  MR.  RUSH:  26  27  28  29  30  31  32  33  34  35  36  37  38  39  THE  COURT:  40  41  MR.  MACKENZ  42  43  44  45  46  47  THE  COURT:  That's right.  All right.  Well, what's troubling me, Mr. Rush, and  you should have a chance to answer, that if you're  seeking to establish title based upon reputation,  and in answer to that the defense says:  The  reputation upon which the Plaintiff relies can't be  a general one because the same property is claimed  by others and to prove that it is claimed by others  I want to ask Mr. Morrison whether it is true or not  that the Nishga'a claim some of the territory that  is in dispute in this action.  Now, that is probably  not accurate because I think questions the claim is  that it is not claimed.  Is it claimed?  It is claimed.  So we are talking about some land that is claimed by  the Gitksan in this action.  And my question is if  the issue is the trustworthiness of the reputation,  does a claim made by a third party not go to the  trustworthiness of that reputation?  It may, but it cannot be admitted in this form.  And  this is the argument I submitted to you on --  Because you say it is made by non-deceased persons?  Yes, by living people.  That's better.  It tends to put a more positive note on things.  What I said is that the same standard or criteria  for evaluating the reputation which is said to be an  adverse or contrary one held by, for example, the  Nishga'a, ought to be met by the calling of similar  evidence for that is said to be the community which  is a community that creates a contrary or adverse  claim and not a claim in the air.  And, in my submission, if that evidence is  available then it should be called by the Defendants  as part of their case, and not led, in my  submission, as an attempt to bring forward hearsay  evidence which does not comply with the criteria or  the exception set out in the rule.  All right.  Thank you.  I think I have your point.  Mr. Mackenzie.  Do you want to reply, Mr. Mackenzie?  IE:  My Lord, I have handed up the notes for  argument.  The authorities to which I rely really  say the same thing as Your Lordship relied on in  Your Lordship's reasons for judgment last June.  For  example, a reference to Wigmore appears on page 14  of Your Lordship's reasons.  Yes. 551?  Proceedings  1 MR. MACKENZIE:  But, My Lord, the question is Your Lordship  2 stated at volume 86, page 5454:  3  4 "...can be rebutted by statements made by  5 non-witnesses inconsistent with the  6 reputation..."  7  8 THE COURT:  Well, that doesn't seem accurate.  It has got to be  9 non-witnesses, by living non-witnesses.  Isn't that  10 a factor that I left out of that?  11 MR. MACKENZIE:  It is 5454.  12 THE COURT:  5454?  13 MR. MACKENZIE:  5454, My Lord.  But, My Lord, certainly I agree  14 that the witnesses were living.  15 THE COURT:  Yes.  16 MR. MACKENZIE:  Although, of course there is some analogy to Mr.  17 Sterritt since a claim is as a result of sacred  18 histories are coming presumably from deceased  19 people, but we didn't get to that point in the  20 evidence.  So, My Lord, my submission, and I think  21 Mr. Rush would agree with me, this is a question of  22 admissibility, not the weight of the evidence.  2 3 THE COURT:  Yes.  24 MR. MACKENZIE:  So that really goes to Mr. Rush's comment.  Mr.  25 Rush is concerned with criteria and the weight of  26 the evidence, not, in my submission, the  27 admissibility.  28 So, My Lord, what we are looking at, as I have  29 indicated in paragraph 2, is the witness's knowledge  30 of other claims from living people and Your Lordship  31 pointed out inconsistent with Gitksan title --  32 inconsistent with Gitksan reputation of evidence as  33 to title from his attendance at feasts and meetings  34 with these other claimants.  35 And as Your Lordship has indicated in Your  36 Lordship's reasons for judgment, reputation evidence  37 is hearsay but is admissible because of the  38 necessity.  As Mr. Rush said, really reliability is  39 the existence of the unchallenged reputation  40 together with its longevity which assures its  41 reliability.  So the reliability is what we are  42 talking about, the unchallenged reputation.  And  43 again, the reputation results from discussion in the  44 community and the development of single and definite  45 consensus.  46 So we are seeking to challenge the  47 reliability.  As Your Lordship points out, we are 5519  Proceedings  1 challenging the reputation.  And we are not seeking  2 to prove actual use or the extent of the claims  3 through this witness.  We have had evidence, My  4 Lord, of other differences of opinion also with  5 respect to boundaries.  The evidence of the Nishga'a  6 chief's claims at Bowser does not prove their claim,  7 it challenges a Gitksan reputation as to the title  8 and arguably that evidence is not hearsay.  9 Arguably, I don't deny strongly that it is not  10 hearsay if Your Lordship is inclined to admit it as  11 hearsay, but I don't rely on that.  It is arguably  12 not hearsay because it is not tendered as proof of  13 the truth of those claims.  And if that evidence is  14 rebutted or admitted with respect to Bowser Lake,  15 there is not a single challenge or consensus.  16 Mr. Rush talks about the Gitksan being the  17 only community, but we are talking about an area of  18 land claimed by different people.  Surely we are  19 talking about a community of people who own the land  20 in the north of Indian people who claim ownership to  21 land in northern British Columbia.  22 THE COURT:  Thank you.  Mr. Macaulay.  23 MR. MACAULAY:  My submission, My Lord, is that we are not really  24 dealing here with the question of hearsay, we are  25 dealing with an act, evidence of an act, not  26 evidence of a statement.  The land claim ought to be  27 properly understood as an act, a step taken.  28 Your Lordship has heard evidence, and I think  29 some of it was led by the Plaintiffs, that there  30 were all kinds of feasts between the Gitksan and  31 Wet'suwet'en and the Carrier Sekani.  There was no  32 formal proof of who the Carrier Sekani were,  33 although everyone in this courtroom including Your  34 Lordship knows in a general way who they are.  The  35 same can be said of the Nishga'a.  Perhaps the  36 cross-examination ought to have been founded upon  37 questions relating to the identity of the Nishga'a.  38 Clearly this witness knows who the Nishga'a are and  39 generally how they are organized.  40 There is sort of an air of unreality about the  41 business urged by Mr. Rush so eloquently about the  42 definition of a community, of the community.  He  43 says there is only one community.  If a village  44 claims a common pasture and the village across the  45 hill claims it also, surely the reputation evidence,  46 the exception of the Hearsay Rule upon which the  47 reputation evidence is admitted, would be broad 5520  Proceedings  1 enough -- that umbrella would be broad enough to  2 include both communities.  Because the very  3 foundation of reputation evidence is this business  4 of general consensus, a lack of dispute over ancient  5 rights.  6 If the pasture in question is claimed by both  7 villages, then that is probably a fact that will go  8 a long way towards determining whether or not at law  9 there are such ancient rights.  And it is an  10 unnecessary and rather illogical truncation of the  11 rule or narrowing of the rule to say that the  12 reputation must be that of -- only that of the  13 community from which the Plaintiff springs.  So you  14 have neither the Hearsay Rule to consider here  15 nor -- and I don't think there is any authority for  16 the proposition that the community has to be and  17 indeed ought to be defined on such a narrow basis.  18 These are neighbouring people, neighbouring nations  19 or tribes with common borders somewhere.  20 So I think my friend Mr. Mackenzie is entitled  21 to ask this witness's knowledge of the extent of the  22 Nishga'a claims based obviously on meetings this  23 witness has attended.  And he has heard in his own  24 community about them as well as matters he has heard  25 directly from the Nishga'a himself.  Those are my  26 submissions, My Lord.  27 THE COURT:  Thank you.  Are you going to get to this -- do you  28 have to get to this this afternoon, Mr. Mackenzie?  29 MR. MACKENZIE:  No, My Lord.  30 THE COURT:  Okay.  I will rule on this first thing tomorrow  31 morning.  I want to have a look and see if there are  32 any other authorities that have dealt with this  33 specific question.  I don't want to take a stab at a  34 solution if there is some juris prudence on it.  I  35 will deal with it overnight and I will give you my  36 reasons tomorrow morning.  You can give that copy of  37 the judgment back to Mr. Mackenzie.  38 MR. MACKENZIE:  My Lord, just before we closed we were speaking  39 about territory B, that's the Wii minoosik  40 territory.  41 THE COURT:  Yes.  42 MR. MACKENZIE:  Mr. Morrison was saying that he knew about the  43 jets flying into the airstrip at Mosque River.  4 4 THE COURT:  Yes.  45  46  47 5521  2  Q  3  4  5  A  6  7  8  9  Q  10  11  12  A  13  Q  14  15  16  17  18  A  19  20  Q  21  22  A  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 CROSS-EXAMINATION BY MR. MACKENZIE:  Now, Mr. Morrison, what other white man's activity  in this territory do you know about over the last,  say, 20 years?  Well, there is B.C. Rail for one, airport, an  airstrip.  Also prospecting in some areas.  Not  specific areas, but a lot of areas.  Guiding areas,  hunting areas.  Do you know about the fishing lodges on the Sustat  River?  That is outside this territory, but do you  know about the fishing lodges on the Sustat River?  No.  Are you aware that the people from the -- well, I  understand you don't know about the lodges, but are  you aware that guides from fishing lodges bring  their clients up into this area in Wii minoosik's  territory?  Not specifically Wii minoosik, but on some other  areas you are talking about like Dam tuuts Aks Lake.  Which territory?  Sorry, we have to get the name for  that.  Dam tuuts Aks.  23 THE TRANSLATOR:  D-a-m, space, t-u-u-t-s, space, A-k-s.  24 MR. MACKENZIE:  25 Q    That's the lake Mr. Morrison referred to and then he  26 referred to another name Dam A Chuck.  27 A    Yes.  28 Q    Do you have the spelling for that?  29 A    They refer to it as Blackwater Lake.  30 THE TRANSLATOR:  That's the one I just spelled.  31 MR. MACKENZIE:  32 Q    Well, Mr. Morrison referred to another lake before  33 that.  34 A    That's the same one, white man word is Dam A Chuck  35 Lake.  36 MR. MACKENZIE:  Yes.  Well, we had better get the spelling for  37 that too.  38 THE COURT:  Well, that's a white man's word?  39 THE WITNESS:  Yes.  You see they couldn't pronounce Blackwater  40 Lake or Dam tuuts Aks, so they say Dam A Chuck Lake.  41 MR. MACKENZIE:  Well, My Lord, this is outside the area and I  42 don't know whether it is material.  4 3 THE COURT:  Yes.  44 MR. MACKENZIE:  45 Q    I was referring to these territories in the north  46 and specifically Wii minoosik's territory B on the  47 map there. 5522  1  A  2  Q  3  A  4 MR. ^  IACK]  5 THE T  'RAN:  6 MR. t  IACK]  7  Q  8  9  10  11  12  A  13  Q  14  15  A  16  Q  17  A  18  Q  19  20  A  21  Q  22  A  23  Q  24  25  A  26  27  28  Q  29  A  30  Q  31  32  A  33  Q  34  A  35  Q  36  A  37  38  Q  39  40  A  41  Q  42  43  A  44  Q  45  46  A  47  Q  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Mackenzie  Would you point it out here?  Yes, Andap matx territory.  That's Xsi Gwin Hliiyuun  [E:  Can we have the spelling for that, please.  rOR:  That is 970 on the list.  [E:  Could you just make a note of that, please, thank  you.  Yes, I just wanted to get that Andap matx,  Mosque River territory.  And I am just wondering if  you were aware that they bring white man up to the  Sustat area?  No, I wasn't aware of that.  But you were aware of commercial guiding and hunting  in the area?  In the same area?  Yes.  No, I wasn't aware of that.  Do you know that Dr. Igor, I-g-o-r, Stechiw,  S-t-e-c-h-i-w, has a licence for that area?  No.  You don't know Dr. Stechiw?  I know he is from Smithers somewhere.  Do you know he takes his clients into that area  hunting?  Well, I know they have an area there somewhere.  But  the other area this is what I am saying for the  hunting area.  Yes.  But I didn't know where this territory was.  Yes.  And as you testified, you don't get up there  too often, do you?  No.  There is no access to that area by road, is there?  Well, there is a right-of-way in there.  Yes, but there is no road in there, is there?  No, the road just goes into Johanson Lake, close to  that.  There is no road into either the Chipmunk Creek area  or the Fort Creek area, is there?  No.  The only way people can get in there is by flying in  there; is that right?  They can walk in there.  It is a long walk, 100 miles from Hazelton, isn't  it?  Yes.  I am going to suggest to you there has been no 5523  1  2  3  4  A  5  6  7  8  Q  9  10  A  11  Q  12  A  13  Q  14  15  A  16  Q  17  A  18  Q  19  A  20  Q  21  A  22  Q  23  A  24  25  Q  26  A  27  Q  28  29  30  A  31  Q  32  A  33  Q  34  A  35  36  37  38  Q  39  40  A  41  Q  42  43  A  44  45  Q  46  47  A  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Mackenzie  member of the House of Wii minoosik trapping on that  territory for over 40 years, you will agree with  that?  Well, they have a report on that.  I only have  permission on this one to talk about this boundary  because they are going on that territory.  I have  too keep my own record.  Now, you said that you knew Charles Stevens, didn't  you?  Yes.  He was the House of Wii minoosik; is that right?  Not in the House of Wii minoosik.  But Ernest Angus, was he in the House of Wii  minoosik?  He was the son of Peter Angus.  Are they Wii minoosik?  Yes.  Peter Angus was Wii minoosik?  Yes.  Was in the House of Wii minoosik?  Yes.  And Ernest Angus is his son?  Yeah.  It could be different clan.  I wouldn't  recall where they come from.  Ernest Angus, is he still alive?  No, he is deceased.  Well, I am suggesting to you that -- have you ever  spoken -- I beg your pardon, rephrase that question.  Did you ever speak to Ernest Angus?  No.  What year are you talking about?  Any time?  Any time?  I talk to him all the time on the road, fishing.  Not specifically that question you are talking  about.  You asked if I talked to him.  I talked to  him many times.  Well, I am going to suggest to you that Ernest Angus  who is now deceased --  Yes.  -- told you that he hadn't been up in this territory  since -- for over 40 years or since the late 1940's?  He didn't tell me anything.  I didn't ask him  anything what he did.  Ernest Angus never told you anything about trapping  in this area, did he?  Not in the conversation we had with him.  He may 5524  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 tell me if I ask him, but it is none of my business  2 to ask him.  3 Q    That's right.  And you don't know of anyone who  4 trapped up in that area for over 40 years, do you?  5 A    Well, there may be some of them.  It is their own  6 territory.  It is not my territory.  7 MR. MACKENZIE:  That's right.  8 THE COURT:  But that's right, you don't know of anyone who has  9 trapped there in 40 years?  10 THE WITNESS:  No, I don't, in my own opinion.  11 THE COURT:  Thank you.  And you are talking now about territory  12 B the territory of Wii minoosik?  13 THE WITNESS:  What's that question again?  14 THE COURT:  When you say you don't know anyone --  15 THE WITNESS:   No.  16 THE COURT:    -- who has trapped there for 40 years, you are  17 talking about territory B?  18 THE WITNESS:  Yes.  19 THE COURT:  Thank you.  20 MR. MACKENZIE:  21 Q    And you said in your testimony that there are very  22 few people alive -- I'm sorry.  Would you agree with  23 me that as a result of what you said this morning  24 that there are very few people alive today who know  25 this territory B, Wii minoosik's territory; is that  26 right?  27 A    Well, there is a few that really knows about this,  2 8 that's what I meant.  29 Q    Yes.  30 A    There are people that knows in the feast that's  31 never been there.  But the knew about it.  32 Q    But they've never --  33 A    But they knew --  34 MR. RUSH:   Just let him finish, please.  35 MR. MACKENZIE:  36 Q    Sorry.  37 A    They knew about that territory that they were  38 talking about and the area and the name of the creek  39 and the name of the mountain.  You have got to know  40 all of these areas as where you pointed, this is why  41 I said that.  Like, for instance, Waiget, they know  42 the territory in the feast, but I got to show  43 whoever -- if you belong to the area, if you go  44 walking through the area and you know what area  45 we've been talking about, you've got to point it to  4 6 them at that time when you go out there and say what  47 specific area you pointed to them.  And you have to 5525  1  2  3  4  5  6  7  8  9  Q  10  11  12  A  13  14  Q  15  16  A  17  18  Q  19  20  A  21  Q  22  23  A  24  Q  25  26  A  27  Q  28  29  A  30  31  32  33  Q  34  35  36  37  A  38  Q  39  40  A  41  Q  42  43  A  44  Q  45  46  A  47  Q  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Mackenzie  name the creek as our word as we mention here.  We  don't go by this word "Skeena".  We use our word as  an Indian and we know what it means.  This is why we  use this.  And if you name some other area he might  say, yes.   Like, for instance, Miin Anhl gii is  Barker Creek.  They are all twisted.  The creek goes  up by Billy Muut called Muut's territory.  They  change it around how they know that area.  So it is only you and maybe your brother who is  actually alive who have actually walked in the  territory; is that right?  Well, there are some people that walking through  that area, like people still alive today.  Okay.  Very few people and they're older people now,  aren't they?  Yes, there are some older people that walk through  that area.  Yes, and your brother is about 68 years old, isn't  he?  Well, somewhere around there.  But there are no younger people who know that  territory or walked through it, are there?  Well, there is David Blackwater.  And young people don't go on the territory up there  at Chipmunk Creek today, do they?  Well, I don't know if they did or not.  No.  They are involved in other employment.  They  are involved in the logging industry, aren't they?  Yes, right for some areas, not the area that you are  talking about.  There are a lot of areas that have  been destroyed, that is the reason why they went to  work on that.  Now, you said in your evidence about territory A  that this is the Chipmunk Creek territory, that  there are no rails past Mosque Creek, do you  remember saying that?  Yes.  Well, you were there in 1983 on your helicopter  flight, weren't you?  Yes.  You landed in territory C just north of Foster Peak,  didn't you?  Yes.  And you looked across the river at Chipmunk Creek,  didn't you?  Yes.  And when you did that you saw the B.C.R. 5526  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 right-of-way?  2 A    Yes.  3 Q    It was on the other side of the river?  4 A    Yes.  5 Q    And you also saw the airstrip at Chipmunk Creek?  6 A    Yes.  7 Q    You know there is a 5,000 foot airstrip at Chipmunk  8 Creek as well?  9 A    Yes.  10 Q    And you are aware that during the B.C.R.  11 construction there were regular flights into that  12 airstrip?  13 A    Yes.  14 Q    Now, did you also see, when you visited that area in  15 1983, that there are rails laid right up to Chipmunk  16 Creek?  17 A    No, I didn't look at that.  18 Q    No, you didn't see that.  Well, I am suggesting to  19 you, Mr. Morrison, that there are rails right up to  20 Chipmunk Creek which is the northern boundary of  21 territory A.  I take it that you are not aware of  22 that?  23 A    No, I am not aware of it.  24 MR. MACKENZIE:  And are you aware that Dr. Stechiw who you  25 mentioned flies into the Chipmunk Creek regularly  26 with his hunting clients?  27 MR. RUSH:   How would he know that, My Lord?  2 8 THE COURT:  He might know it.  I don't think he does, but he  2 9 might.  30 MR. MACKENZIE:  I'm sorry, I didn't mean to interrupt Mr. Rush.  31 THE COURT:  Well, go ahead, Mr. Mackenzie.  32 MR. MACKENZIE:  33 Q    You testified that you know what happens on the  34 territory, don't you -- didn't you?  35 A    Yes.  36 Q    And the chiefs are aware of what happens on their  37 territory?  38 A    Yes.  39 Q    So my question is do you know that Dr. Stechiw, the  40 guy out there, flies into the Chipmunk Creek  41 regularly with his hunting clients?  42 A    I wasn't aware of that, but I know that they are  43 flying all over the place there.  There are a lot of  44 guiding areas there.  This is what I mentioned to  45 you before.  There are a lot of hunting areas, not  46 just one place.  It is all over the place, Spatazie.  47 Q    We will look down south on map B.  I'm sorry, just 5527  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 before we leave that, when you are looking at the  2 territory during your helicopter flight in 1983, you  3 also saw the microwave tower that is set up in that  4 territory A, didn't you?  5 A That is Luu suuxwit you were talking about?  6 Q Yes.  7 A Yes.  8 Q And you were referring to a name that is on map A  9 and we had better get the spelling for that name.  10 A    It is the boundary of Waiget and Wii minoosik.  11 MR. MACKENZIE:  Luu suuxwit.  Is there a number?  12 THE TRANSLATOR:  L-u-u s-u-u-x-w-i-t.  13 THE COURT:  Sorry, is this where the microwave tower is?  14 THE WITNESS:  Yes, that is about a mile or a half a mile up  15 above, that's below that.  16 THE TRANSLATOR:  It is 954 on the plaintiff's list.  17 MR. MACKENZIE:  And, My Lord, a picture of that microwave tower  18 appears in the exhibit for identification.  It is a  19 photograph page 43, in the lower right-hand corner  20 of page 43.  21 THE COURT:  Yes.  22 MR. MACKENZIE:  That's Exhibit 377 for identification.  And for  23 the reference, the Chipmunk Creek airstrip and the  24 right-of-way appear at Exhibit 377 for  25 identification at page 40.  There is only one  26 combined photograph on that page.  2 7 THE COURT: Yes.  28 MR. MACKENZIE:  Now, looking at territory E.  In your affidavit  29 at paragraph 32.  30 MR. RUSH:   Are you referring now to the southern Waiget  31 territory of Luu ska'yans't?  32 MR. MACKENZIE:  Yes.  Does Your Lordship have that, it is map B  33 in Exhibit 379.  34 THE COURT:  Yes.  35 MR. MACKENZIE:  The southern territory.  And in the affidavit -- Mr.  Morrison, in your affidavit, paragraph 4, you say  you have travelled in that Luu ska'yans't territory,  that is territory E with Henry Wright, do you see  that?  Is that right?  Is that correct, I mean?  Yes.  And you say he pointed out the boundary and the  major landmarks to you?  Yes.  45 THE COURT:  Was it Henry Wright?  46 MR. MACKENZIE:  Henry Wright, My Lord.  4 7 THE COURT:  Thank you.  36  Q  37  38  39  40  41  A  42  Q  43  44  A 552?  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 THE WITNESS:  I think there are some others too.  2 MR. MACKENZIE:  3 Q    There are some others mentioned as well?  4 A    Yes.  There are some other people that give the  5 information.  Because to make sure the information  6 is right, you have to have more people in order to  7 have the right boundary.  This is what I gathered  8 from them, not just a specific person.  9 Q    You are sure that you travelled on the territory  10 with Henry Wright, are you?  11 A    Yes, we travelled with so many people there.  But in  12 this case, the names of the people are on this  13 affidavit.  14 Q    Yes.  And you say this territory E is in the  15 Fireweed Clan, don't you?  16 A    Yes and Xsu Wii Wiltxwt.  It starts from Xsu Wii  17 Wiltxwt.  18 MR. MACKENZIE:  We need a spelling for that, please.  That is  19 the northern boundary.  It is on the map.  2 0 THE COURT:  Yes, it's here.  21 MR. MACKENZIE:  22 Q    Now, Mr. Morrison, in 1979 Henry Wright told you  23 that this was Wolf Clan territory, didn't he?  24 A    No, it is Fireweed.  25 Q    Do you recall meeting with Henry Wright in 1979?  2 6        A    I remember when we were sitting down, but I didn't  27 hear anything like that.  28 MR. MACKENZIE:  My Lord, I refer to page 3-191.  29 THE COURT:  I'm sorry?  30 MR. MACKENZIE:  Tab 3-191, My Lord, of volume 4.  31 THE COURT:  Yes.  32 MR. MACKENZIE:  33 Q    Now, you were present on July 7, 1979 when Neil  34 Sterritt was speaking to Henry Wright?  35 A    Yes.  36 Q    Yes.  And David Green was there?  37 A    Yes.  38 Q    And Joshua McLean was there?  39 A    Yes.  40 Q    And Henry Wright said that Luu ska'yans't is in the  41 Wolf Clan territory, didn't he?  42 A    No, I didn't hear that.  43 Q    Now, you are reading this page 3-191.  You say that  44 is incorrect information?  45 A    This 191?  46 Q    Yes?  47 A    Yes. 5529  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 Q    It is not right?  2 A    Not right.  3 MR. MACKENZIE:  No.  4 THE COURT:  Where is Luu ska'yans't again?  5 MR. MACKENZIE:  6 Q    That is right in the middle there, My Lord.  I am  7 looking at the wrong one.  8 A    You have to look for the Xsu Wii Wiltxwt boundary,  9 that's between Xsu Wii Wiltxwt and Luu ska'yans't to  10 Luu Lax Loobit.  11 MR. MACKENZIE:  We will have to get the spelling of those.  My  12 Lord, during Mr. Rush's examination in chief we  13 identified Ska'yans't being right in the middle of  14 that territory of map B.  15 THE COURT:  This is the stream that flows from east to west  16 about halfway up the north/south axis of the  17 territory?  18 MR. MACKENZIE:  Yes, My Lord.  19 THE COURT:  Yes.  20 MR. MACKENZIE:  From where that camp is.  21 THE COURT:  Yes.  22 MR. MACKENZIE:  Near where that camp is.  2 3 THE COURT:  Yes.  24 MR. MACKENZIE:  Is Your Lordship satisfied with that?  2 5 THE COURT:  Yes.  26 MR. MACKENZIE:  Now, Madam Reporter, did you get the names that  27 we just mentioned?  28 THE REPORTER:  Yes.  29 MR. MACKENZIE:  And My Lord, just for further clarification,  30 Your Lordship will see that Sperry Creek appears on  31 map B as Luu skadakwit.  That is Sperry Creek.  32 THE COURT:  Yes.  33 MR. MACKENZIE:  That's referred to on page 3-191 in volume 4.  34 THE COURT:  Yes.  35 MR. MACKENZIE:  36 Q    Mr. Morrison, you also say in your affidavit that  37 Dam similo'o Lake is in Fireweed territory, don't  38 you?  39 A    Yes.  40 MR. MACKENZIE:  Yes.  That's in paragraph 35 of your affidavit  41 under Lakes, number one.  42 THE COURT:  Where is that again?  43 MR. MACKENZIE:  Does Your Lordship have the reference, paragraph  44 35 under Lakes, number one.  45 THE COURT:  Is in Fireweed?  46 MR. MACKENZIE:  47 Q    Yes.  That's the Wiigyet, W-i-i-g-y-e-t, territory. 5530  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 A    Yes.  2 Q    Territory E as we've been calling it in these  3 questions.  Now, as you say, these boundaries have  4 remained the same for a long time, haven't they?  5 A    Yes.  6 Q    And you've known this information about Dam similo'o  7 Lake for a long time, have you?  8 A    Yes.  9 Q    Yes.  And as you also said, Henry Wright travelled  10 with you on the territory?  11 A    Not just one person.  12 Q    Yes.  13 A   All those names were on that list.  Just certain  14 times when I was with these people when we were  15 camping together and discussed this area that we are  16 talking about now.  All these people that are  17 referred on this affidavit, these are the people,  18 not just one person.  19 Q    In 1979 Henry Wright told you that Dam Similo'o Lake  20 was in Wolf Clan territory, didn't he?  21 A    No.  22 Q    I refer to page 3-10 in volume 4, My Lord.  That's  23 the same meeting we've been talking about in July,  24 July 7, 1979 with Henry Wright.  Did Henry Wright  25 advise Neil Sterritt in your presence that Dam  26 Similo'o was Lax Gibuu or Wolf Clan?  27 A    No.  28 Q    Did he say that that must be a sacred place?  2 9 A    No.  30 Q    Do you know Dam Similo'o was a sacred place?  31 A    Well, the only thing I know is it is not sacred  32 place, but there is a monster in there.  Probably  33 that is what you referring to.  Monster that's why  34 they call it Dam Similo'o.  A Similo'o is word for  35 monster.  36 THE COURT:  Where is Dam Similo'o, please?  37 MR. MACKENZIE:  Yes, My Lord, it is just to the northwest tip of  38 the territory.  39 THE COURT:  It is on Waiget's thumb?  40 MR. MACKENZIE:  Yes.  41 THE COURT:  Should we adjourn, Mr. Mackenzie, please.  42 MR. MACKENZIE:  Yes, My Lord.  43 THE REGISTRAR:  Order in court, court will recess.  4 4 (PROCEEDINGS ADJOURNED AT 3:00)  45  46  47 5531  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1  2 I hereby certify the foregoing to  3 be a true and accurate transcript  4 of the proceedings here,  5 transcribed to the best of my  6 skill and ability.  7  8  9 LISA REID, OFFICIAL REPORTER  10 UNITED REPORTING SERVICE LTD.  11  12        (PROCEEDINGS RECONVENED PURSUANT TO THE AFTERNOON BREAK)  13  14 THE REGISTRAR:  Order in court.  Ready to proceed, my lord.  15 THE COURT:  Thank you.  Mr. Mackenzie.  16 MR. MACKENZIE:  My lord, we were speaking about territory E  17 before the break.  18 THE COURT:  Yes.  19 MR. MACKENZIE:  Particularly Dam Similoo Lake.  Mr. Morrison, as you say, you've known these  territories for many years?  Yes.  Yes.  And when you were on your helicopter flight, as  you mentioned before, you landed on the northern tip  of Shelf Ridge?  Yes.  Just south of Dam Similoo Lake?  Yes.  And you looked down on Dam Similoo Lake?  Yes.  And you discussed it with Neil Sterritt?  Not the specific lake, but all the areas across from  Xsu wii wiltxwt right to Luu Lax Loobit is one  reason why we set down there, not on -- not on  specific Dam Similoo Lake.  It's right from there to  Luu Lax Loobit.  That's we setting a view there.  You can see it in the folder there.  Just hold on for a minute, please, and we'll get the  spellings.  Now, Glen Williams had the video camera, and he  was taking pictures of the view as you were  commenting; isn't that correct?  Yes.  And he also took a picture of Dam Similoo Lake, didn't  he?  Yes.  20  Q  21  22  23  A  24  Q  25  26  27  A  28  Q  29  A  30  Q  31  A  32  Q  33  A  34  35  36  37  38  39  Q  40  41  42  43  44  A  45  Q  46  47  A 5532  1  2  3  4  5  6  7  8  MR.  9  10  11  THE  12  MR.  13  14  15  16  THE  17  MR.  18  THE  19  MR.  20  THE  21  MR.  22  23  THE  24  MR.  25  THE  26  THE  27  MR.  28  MR.  29  THE  30  MR.  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Mackenzie  Q   I'm going to just read you an excerpt from that tape.  And Neil Sterritt says,  "Smokee Lake coming up."  Now, do you know where Smokee Lake is?  A  What's the Indian name?  MACKENZIE:  I don't know, but it appears on your map B just  north-west of Dam Similoo Lake.  Does your lordship  have that reference?  COURT:  I'm sorry.  MACKENZIE:  Map B, the base map, just north-west of Dam  Similoo Lake across the river from Old Kuldoe.  Smokee Lake.  Does your lordship have that  reference?  COURT:  No, I don't.  Is it on this map?  MACKENZIE:  Map B, Exhibit 379, my lord.  COURT:  Yes.  It's marked on here, is it?  MACKENZIE:  Yes, my lord, on the base map, yes.  COURT:  Just north-west of Old Kuldoe?  MACKENZIE:  No, north-west of Dam Similoo.  Kuldoe.  COURT:  Oh, yes.  I see it.  MACKENZIE:  Does your lordship have that?  COURT:  Yes.  WITNESS:  Can you point it out here?  MACKENZIE:  Yes.  RUSH:  Can you see?  WITNESS:  Yeah.  MACKENZIE:  Q   And Neil Sterritt says,  "Smokee Lake coming up,"  and then,  "Damsimilo.  Get Damsimilo.  Damsimilo?"  Just east of Old  Who owns  Do you remember Neil Sterritt saying that'  A  Q  No.  No.  And do you remember your reply,  "Well see these two questions on that . . . ]  don't know who be the legal on it but I had  an idea but we just leave it that . . .  that's . . . Alec Brown . . . let us this 5533  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 ... but not actually belong to him"?  2  3 Do you recall saying that?  4 A   No.  5 Q   No.  I'm handing up to -- sorry -- I'm handing up to  6 his lordship a copy of an excerpt from that tape,  7 and the excerpt I just referred to is on the -- is  8 at the lower part of that document.  Does that  9 refresh your memory?  10 A   You mean this paper?  11 Q   Yes.  Do you recall saying that now?  12 A   No.  13 MR. MACKENZIE:  No.  Okay.  14 THE COURT:  Well, you're just asking Mr. Morrison if he said  15 those things to Mr. Neil Sterritt as you say --  16 MR. MACKENZIE:  Yes.  17 THE COURT:  — was on the video tape on that day?  18 MR. MACKENZIE:  Yes, my lord.  19 THE COURT:  Do you know, Mr. Morrison, if you made those  20 statements?  21 THE WITNESS:  Well, we talk a lot of those territory right  22 across.  That's the reason why we setting down  23 there, but I didn't remember I said any specific  24 things when he was asking me.  25 THE COURT:  All right.  So you don't know if you made those  26 statements or not?  27 THE WITNESS:  No.  28 MR. MACKENZIE:  29 Q   Now, my lord, looking at territory G, Mr. Morrison,  30 you say this territory belongs to Wii minoosik,  31 don't you?  32 A   Yes.  33 Q   And that is indicated in your affidavit, paragraph 45,  34 and on map B, Exhibit 379.  Now, I have to suggest  35 to you, Mr. Morrison, that -- I'm going to suggest  36 to you there is no Wii minoosik territory there  37 between Rosenthal Creek and Sperry Creek.  Do you  38 agree with that statement?  39 A   No.  40 Q   In paragraph 47 of your affidavit and on map B,  41 Exhibit 379, you say that the southern boundary of  42 territory G is Skadakwit or Sperry Creek, don't you?  43 A   Yes.  44 Q   And you also say that the northern boundary is Lax  45 Loobit or Rosenthal Creek, don't you?  46 A   Luu Lax Loobit, yes.  47 MR. RUSH:  It says Luu Lax Loobit in the paragraph 47. 5534  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 MR. MACKENZIE:  2 Q   Yes.  Now, I'm going to suggest to you that Skadakwit  3 is the southern boundary or some people say is the  4 southern boundary of the Wiigyet territory; is that  5 correct?  6 A   No, that's Wii minoosik.  7 Q   You told that to Neil Sterritt in 1983, didn't you?  8 A   No.  9 Q   And you told Neil Sterritt that the northern boundary  10 of Tsabux was Skadakwit, and that's true, isn't it?  11 A   Yeah, that's Skadakwit, Tsabux's boundary.  12 MR. MACKENZIE:  Yes.  Do you have the spellings for that?  13 THE COURT:  Are you saying that you told Mr. Sterritt that the  14 north boundary of Tsabux was Luu Skadakwit?  15 THE WITNESS:  Yes, Luu Skadakwit.  16 THE COURT:  Yes.  That is true, isn't it?  17 THE WITNESS:  Yes.  18 MR. MACKENZIE:  19 Q   Now, do you recall meeting with Mr. Sterritt just  20 after the helicopter flight, a week later, to  21 discuss the flight?  22 A  Where does that meeting take place?  23 Q   Well, I don't know when it took place, but I suggest  24 to you that it was a meeting and Glen Williams was  25 there.  Do you recall that?  26 A   Depends what this meeting for.  We got a lot of  27 meetings.  This is what I'm asking what place that  28 we took place in that.  29 MR. MACKENZIE:  Okay.  Well, I'm going to refer the Court to tab  30 10 of the grey binder, volume 3, the third page, the  31 third page at that tab dated June 28, 1983, and I'm  32 referring to the diagram the -- my first reference  33 is to the diaram on the right side of that page.  34 It's page number 2.  I've numbered the pages at the  35 top right-hand corner.  Does your lordship have that  36 number?  37 THE COURT:  Yes.  June 28th, '83?  38 MR. MACKENZIE:  Yes, my lord.  3 9 THE COURT:  Yes.  40 MR. MACKENZIE:  41 Q   Now, at the top of that page, just above the diagram,  42 there's a notation "June 28/83 James Morrison to  43 NJS" and "G. Williams."  Does that assist you in  44 remembering that meeting, Mr. Morrison?  45 A   No.  It's -- it -- I didn't recognize anything on  46 here.  It's got to be the place where we have  47 meeting and what we are discussing that time. 5535  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 Q   I see.  Okay.  Fine.  At the bottom of that page  2 there's a reference to "Tape Count 454 on Video,"  3 and on the lower right-hand side of the diagram  4 there is a reference to Xsi Luu Ska'yans't.  And as  5 we noted earlier, that's the -- that's the river --  6 the creek just in the centre of -- of territory E.  7 And you see it says Waiget on one side and Waiget on  8 the other, so I take it you agree with that?  9 A  Well, Waiget -- Waiget territory, it's Xsu wii wiltxwt  10 right up to Luu Lax Loobit.  11 Q   Yes.  But do you agree with this diagram where it says  12 Waiget is north of Ska'yans't and Waiget is also  13 south of Ska'yans't?  That's correct, is it?  14 A   Right to Luu Lax Loobit.  15 Q   Yes.  16 A   It's got to be specific boundary you're talking about,  17 not just roughly.  You've got to point it out where  18 it stop.  19 Q   Yes.  But I'm just speaking about Ska'yans't now.  20 A   Xsi Luu Ska'yans't is the middle, not the boundary.  21 Q   Yes, that's right.  22 A   Yes.  23 Q   So you're agreeing?  24 A   Okay.  25 MR. MACKENZIE:  So you agree with this diagram?  26 MR. RUSH:  Well, my lord, I've looked at this diagram.  It's  27 hard to read.  And I asked Mr. Morrison about his  28 glasses, and he can make out the words, but he told  29 me he had some trouble with it, and I just think  30 that my friend with his crosshatching on this, if he  31 can lead him a little bit more directly to it.  32 THE COURT:  Yes.  33 MR. RUSH:  So —  34 THE COURT:  I'm having great difficulty with it too, Mr.  35 Mackenzie, so I think Mr. Rush's observations are  36 well taken.  37 MR. MACKENZIE:  Fine, my lord.  38 THE COURT:  I have found Xsi Luu Ska'yans't with an arrow.  39 MR. MACKENZIE:  Yes, my lord.  4 0 THE COURT:  And below that word Xsi Luu Ska'yans't is the word  41 Waiget.  42 MR. MACKENZIE:  Yes, my lord.  43 THE COURT:  Well, isn't that consistent with what we've been —  44 MR. MACKENZIE:  Yes, my lord.  I wanted to show Mr. Morrison  45 agrees with that.  4 6 THE COURT:  Yes.  47 MR. MACKENZIE:  Does your lordship have my point? 5536  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 THE COURT:  I think it would be helpful if you perhaps pointed  2 the things out you want Mr. Morrison to have regard  3 to so there's no doubt he understands what you're  4 saying.  5 MR. MACKENZIE:  Yes.  Thank you, my lord.  I think Mr. Morrison  6 agrees with what your lordship has said.  7 THE COURT:  I think that's right.  8 MR. MACKENZIE:  That's the point of my question.  Does your  9 lordship have my point?  10 THE COURT:  All right.  11 MR. MACKENZIE:  Yes.  Now, Mr. Morrison and my lord, I refer you  12 to page 3.  13 THE COURT:  Just a moment.  Just a minute.  Yes.  All right.  14 Now, page 3.  15 MR. MACKENZIE:  Yes, my lord.  Now, does your lordship see the  16 notation in the centre of that page?  17 THE COURT:  Yes.  18 MR. MACKENZIE:  19 Q   Now, Mr. Morrison on page 3, and I'll point it out to  20 you, in the centre of that page there's a notation  21 "Waiget goes to Luu Skadakwit = Sperry Creek."  Now,  22 do you agree with that?  23 A   No.  24 Q   No.  And in the lower left -- lower right-hand of the  25 diagram there's a diagram which appears to show Luu  2 6 Skadakwit flowing down to the -- flowing down  27 towards the bottom?  28 A   Shedin.  29 MR. MACKENZIE:  The Shedin.  And on one side is Waiget and on  30 the other side is Djiiwus.  Does your lordship have  31 that reference?  32 THE COURT:  Yes.  33 MR. MACKENZIE:  34 Q   Now, Djiiwus is wolf clan, is he?  35 A   Yes.  36 Q   Yes.  That's right.  Is he related to Tsabux?  37 A   That's Tsabux's House.  38 Q   Yes.  So you agree with the diagram on page 2, but you  39 don't agree with the diagram on page 3; is that  40 correct?  41 A  Well, what I make here, this is what I can see.  We  42 can point it out where it stops here.  This is what  43 I agree with, that this boundary here.  44 MR. MACKENZIE:  Referring to map B, and Mr. Morrison's pointing  45 to the different boundaries on map B.  46 MR. RUSH:  Particularly to Luu Skadakwit.  47 THE WITNESS:  Yeah, Luu Skadakwit. 5537  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 MR. MACKENZIE:  2 Q   So did you tell Mr. Sterritt that the Waiget went down  3 to Skadakwit?  4 A   I was referring these boundary here from -- from Xsu  5 wii wiltxwt to Luu Lax Loobit.  6 Q   You're referring to map B, Exhibit 379.  7 A   That's the boundary at Waiget.  8 Q   So is it fair to say that you disagree with the  9 diagram on page 3?  10 A   Yes.  11 Q   Yes.  It's fair to say that.  Yes.  Mr. Morrison, you  12 testified that chiefs have a responsibility to know  13 their territories; correct?  14 A  Which one is that?  15 Q   You said that the chiefs have a responsibility to know  16 their territories.  Do you remember saying that?  17 A   Particularly what area?  18 Q   Well, you were speaking generally that one of the  19 responsibilities of the territory is that -- one of  20 the responsibilities of being a chief is that a  21 person should know his territory; is that correct?  22 A   Yes.  23 Q   Yes.  And you also told us about the fact that you had  24 meetings with Lloyd Morrison?  25 A   Yes.  26 Q   Yes.  27 A   Not just him.  28 Q   And Elsie Morrison?  29 A   Elsie Morrison.  3 0 Q   And —  31 A  Wii Seeks.  32 Q   And Wii Seeks, yes.  He's the owner of territory E,  33 isn't he?  34 A   Yes, Luu Ska'yans't and Xsu wii wiltxwt.  35 MR. MACKENZIE:  We'll get the names.  36 THE COURT:  Lloyd Morrison is Wiigyet?  37 MR. MACKENZIE:  38 Q   That's Wiigyet, my lord, W-i-i-g-y-e-t.  And Elsie  39 Morrison is Waiget, correct, W-a-i-g-e-t.  40 And you said that Lloyd Morrison already knows the  41 boundaries, didn't you?  42 A  What boundary are you talking about?  43 MR. MACKENZIE:  He knows the boundaries of his territory,  44 territory E, Wiigyet's territory at Luu Ska'yans't.  45 Well, in volume 82 at page 5139 -- I'll just put  46 this in front of you to give you a hand here, and  47 I'll read it out after his lordship gets the 553?  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 reference.  2 THE COURT:  82 page what?  3 MR. MACKENZIE:  Volume 82 page 5139, my lord.  4 THE COURT:  Yes.  5 MR. MACKENZIE:  6 Q   And starting at line 22, my lord.  7  8 "Q   Okay.  Now, in terms of Waiget's,"  9  10 that's W-a-i-g-e-t,  11  12 "territory, do you know what system or  13 way that Elsie Morrison is looking after  14 or managing her territory today?  What  15 is she doing?  16 A   They are starting to have meetings with  17 us, and they have somebody to go out  18 there to look after territory, because  19 she can't go out herself into that  20 territory.  21 Q   Okay.  How many meetings has she had  22 with you?  23 A  Well, they had two so far.  This is the  24 first step.  As I said before, they  25 already know what the boundary is and  26 that, but never been there herselves, so  27 I have to send someone there to manage  28 that place.  2 9 Q   Okay.  And are you -- do you meet with  30 anyone else besides Elsie?"  31 A   No.  32 Q  33 "A   Pete Muldoe, Gitluudahl.  Wii Seeks,  34 that's Ralph Mitchell.  And Wiigyet,  35 that's Lloyd Morrison, that's from  36 Kispiox."  37  38 And that was your evidence, right?  39 A   Yes.  You see, you didn't refer on the feast here.  40 This is where they know on to that where the  41 boundary is.  42 MR. MACKENZIE:  Now, I refer to tab 7, my lord.  43 THE COURT:  Which tab 7?  44 MR. MACKENZIE:  Tab 7 in the grey binder, volume 3.  45 THE COURT:  Exhibit 418.  46 MR. MACKENZIE:  Exhibit 418, my lord.  Does your lordship have  47 that reference?  You may have. 5539  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 THE COURT:  Is that the map that I was asked to leave out?  2 MR. MACKENZIE:  Yes, my lord.  3 THE COURT:  Yes.  Thank you.  4 MR. MACKENZIE:  5 Q   Yes.  Now, this is Lloyd Morrison's map, and this is  6 the map of his territory.  And, my lord, I refer to  7 the interrogatories that my friend Mr. Rush  8 mentioned, 59C.  Lloyd Morrison says,  9  10 "The approximate boundaries of my territory  11 are included in the map which is set out in  12 Schedule 'C except for my fishing sites."  13  14 Now, Mr. Morrison, in that map, Exhibit 418, the  15 southern boundary is on Luu Skadakwit.  There is no  16 Wii minoosik territory.  Do you see that?  17 A   Yeah, I can see it.  This is different map then  18 compared with ours.  This is --  19 Q   So you disagree with this map, Exhibit 418?  20 A   Yes  21 MR. MACKENZIE:  Okay.  22 THE COURT:  The boundary shown on this map then is Sperry Creek,  23 is it?  24 MR. MACKENZIE:  Yes, my lord.  Does your lordship see the name  25 Skadakwit written on the southern boundary?  26 THE COURT:  Yes, on part of the southern boundary.  27 MR. MACKENZIE:  Yes, my lord, part of the southern boundary.  28 THE COURT:  Looking at Lloyd Morrison's response to the  29 interrogatories, he says,  30  31 "The approximate boundaries of my territory  32 are included in the map which is set out in  33 Schedule 'C.'"  34  35 Is this map Schedule C?  36 MR. MACKENZIE:  Yes, my lord.  This is one of two maps.  37 THE COURT:  And the other part is — the other map is what?  38 MR. MACKENZIE:  The other map is one of Wiigyet's other  39 territories.  40 THE COURT:  The other territory.  41 MR. MACKENZIE:  I have the complete — I don't have the other  42 map here.  I have the complete interrogatory.  But I  43 could bring the other map in, my lord.  44 THE COURT:  That's his northern territory?  45 MR. MACKENZIE:  Yes.  I think that's correct.  46 THE COURT:  Yes.  All right.  Well, I'm sorry, under A — I have  47 to review this evidence, but under A there is the 5540  1  2  3  4  MR.  5  6  THE  7  MR.  8  9  THE  10  MR.  11  12  13  14  THE  15  MR.  16  THE  17  MR.  18  19  MR.  20  MR.  21  22  23  THE  24  MR.  25  THE  26  MR.  27  28  THE  29  30  31  MR.  32  THE  33  34  35  36  37  38  MR.  39  40  THE  41  MR.  42  THE  43  MR.  44  45  46  THE  47  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Mackenzie  Waiget, W-a-i-g-e-t, which is west of the Skeena and  runs also into the other side, the east side of the  Skeena.  Is that Lloyd Morrison's other territory?  MACKENZIE:  That's one of his other territories, my lord.  That's not the other map in the affidavit.  COURT:  I see.  MACKENZIE:  But, my lord, the affidavit says that Lloyd  Morrison owns that territory but --  COURT:  But it's transferred into Wiigyet -- Waiget?  MACKENZIE:  No, my lord.  I'm sorry, my lord.  If your  lordship will see paragraph 3 of the affidavit, this  territory, territory A, is claimed by the House of  Wiigyet.  That's Lloyd Morrison.  And paragraph --  COURT:  Well, looking at sketch A, 378 —  MACKENZIE:  Yes, my lord.  COURT:  — should that W-a-i-g-e-t be spelt W-i-i-g-y-e-t?  MACKENZIE:  Well, I don't want to interrupt Mr. Rush, my  lord, but paragraph --  RUSH:  You're not interrupting me.  MACKENZIE:  In paragraph 4 of his affidavit Mr. Morrison  said Waiget, W-a-i-g-e-t, looks after the  territory --  COURT:  For Wiigyet.  MACKENZIE:  — for Wiigyet, W-i-i-g-y-e-t.  COURT:  Yes.  MACKENZIE:  Now, I shouldn't be explaining that, but that's  what I understand from the affidavit.  COURT:  All right.  But the other map then that's part of  the interrogatories does not relate to those -- that  northern territory shown on 378?  MACKENZIE:  That's correct, my lord.  COURT:  All right.  All right.  Thank you.  All right.  If  counsel can assist me by just telling me this:  The  Waiget territory shown on 379, the one we can talk  about now, that -- is that said to -- I haven't  looked at the affidavit.  Does it say that it  belongs to Waiget or Wiigyet?  MACKENZIE:  Wiigyet, my lord.  That's in paragraph 31 of the  affidavit.  COURT:  Thirty-one.  MACKENZIE:  Thirty-one, my lord, on page 9.  COURT:  All right.  MACKENZIE:  It also appears -- sorry, my lord, to  interrupt -- it also appears in the last sentence in  paragraph 32.  COURT:  Do you agree, Mr. Rush, that 379 where it says  Waiget should say Wiigyet? 5541  1  MR.  RUSH:  2  3  4  5  6  7  8  9  10  11  THE  COURT:  12  MR.  MACKENZ  13  14  15  16  17  THE  COURT:  18  MR.  MACKENZ  19  THE  COURT:  20  MR.  MACKENZ  21  THE  COURT:  22  MR.  MACKENZ  23  24  25  26  27  28  MR.  RUSH:  29  THE  COURT:  30  MR.  MACKENZ  31  THE  COURT:  32  MR.  MACKENZ  33  THE  COURT:  34  MR.  MACKENZ  35  THE  COURT:  36  MR.  MACKENZ  37  THE  COURT:  38  MR.  MACKENZ  39  40  THE  COURT:  41  MR.  MACKENZ  42  THE  COURT:  43  MR.  MACKENZ  44  Q   N.  45  46  47  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Mackenzie  Yes, that's right.  Mr. Mackenzie was right in  pointing your lordship to paragraph 32, at the end  of which it says, after naming a number of people,  "They pointed out the boundary and major  landmarks to me when we travelled within the  Xsi Luu Ska'yans't territory.  They told me  Waiget looks after this territory and it is  owned by Wiigyet."  Yes.  All right.  Thank you.  Thank you.  IE:  Now, I'm going to -- in the time we have left  here I'd like to refer you to the photograph book,  which is -- I think it's Exhibit 377 for  identification.  Page 58.  Yes, that's correct, my  lord.  I'm sorry.  IE:  Exhibit 377 for identification, page 58.  Yes.  Page 58?  IE:  Yes, my lord.  The upper left-hand corner.  Upper left.  Yes.  IE:  And before we -- we've got that reference now,  and I want to just refer Mr. Morrison briefly to his  affidavit while we have that reference in front of  us.  In paragraph 49, number 3, you say Gwin Dak as  mountain number 3.  Gwin Dak is in this territory G,  don't you agree?  Let's get Mr. Morrison oriented here.  You said paragraph 49?  IE:  Paragraph 49, item number 3, under mountains.  Refers to what mountain?  IE:  Gwin Dak.  That's G-w-i-n?  IE:  Yes, my lord.  D-a-k?  IE:  Yes.  Yes.  IE:  It's actually shown on map B.  That would be  easier to refer to.  Yes, it's in the middle of the map.  IE:  Yes.  Middle of G.  IE:  ow, looking at the upper -- the corner -- the  paragraph to -- sorry.  Looking at the photograph on  page 58 in the upper left-hand corner, does Gwin Dak  appear on that photograph? 5542  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 A   This one here?  2 Q   Yes.  3 A   Yes.  4 Q   Yes.  5 A   Right here.  6 Q   Yes.  Can you -- may I ask you to mark the photograph  7 with a pen an "x" where Gwin Dak appears?  8 A   That's the whole thing here.  9 MR. MACKENZIE:  Yes.  10 THE COURT:  It's the glacier with the three peaks?  11 THE WITNESS:  Yeah, and then you can see the creek coming down  12 here.  13 MR. MACKENZIE:  14 Q   Very good.  Now, in your affidavit you say that  15 mountain is in Wii minoosik's territory, don't you?  16 A   Yes.  17 Q   If you look down at the label just across here, you'll  18 see that it shows that Gwin Dak is in Waiget  19 territory.  Do you see that?  20 A   Yeah, I see it here.  21 Q   Yes.  W-a-i-g-e-t.  22 A   Yes.  23 Q   So that's wrong, is it?  24 A   Yes.  25 Q   Okay.  It also shows Skadakwit.  Do you see that?  26 A   Yes.  27 Q   It says that's Tsiiwus's territory.  That's wrong too,  2 8 in your view?  29 A   That's -- that's east from that Tsiiwus.  30 Q   That's different from your affidavit though, isn't it?  31 A   Yes.  32 MR. MACKENZIE:  Now, did your lordship get those references?  33 THE COURT:  All right.  One moment.  Is Djiiwus, is that h-y at  34 the end.  35 MR. MACKENZIE:  36 Q   That's —  37 A   Dj iiwus.  38 MR. MACKENZIE:  D-j-i-i-w-u-s territory, my lord.  39 THE COURT:  Oh, territory.  That is also — yes.  Thank you.  40 MR. MACKENZIE:  41 Q   And, Mr. Morrison, finally I have to refer to your  42 affidavit, paragraph 48.  I'm sorry.  I beg your  43 pardon.  Paragraph 34, Mr. Morrison.  Paragraph 34.  44 And if you hold map B in your hand as well, Exhibit  45 379.  We're looking at paragraph 34 of your  46 affidavit and looking at your map, Exhibit 379, and  47 in that paragraph 34 you set out the chiefs' 5543  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 territories that border on territory E, don't you?  2 This is the Ska'yans't territory you're speaking  3 about?  4 A   Yes.  5 Q   You set out the chiefs with the territories that  6 border Ska'yans't?  7 A   Not —  8 MR. MACKENZIE:  Yes.  You say —  9 MR. RUSH:  Just a moment.  Do you mean Xsi Luu Ska'yans't  10 territory?  11 MR. MACKENZIE:  12 Q   I'm going to read that paragraph 34 for you.  If you  13 would just follow along, please.  14 A   Okay.  15 Q  16  17 "Other Gitksan Head Chiefs have territories  18 which border on Xsi Luu Ska'Yans't  19 territory.  They are Tsabux, Luus and Wii  20 Gaak."  21  22 Do you see that?  23 A   Yes, I follow that.  24 Q   Well, Mr. Morrison, you don't refer to Wii minoosik  25 there, do you?  26 A   Can he point it on this one what you're talking about  27 here on the map?  28 MR. MACKENZIE:  Well, my lord, I have no further questions  29 except for those which may arise out of your  30 lordship's decision tomorrow morning.  31 THE COURT:  Well, all right.  Are you going to be some time?  32 Well, you have to cross-examine, Mr. Macaulay, so  33 the witness will have to come back anyway.  All  34 right.  We'll adjourn now I guess then until  35 tomorrow morning.  Before we do that, I thought I  36 would just mention to counsel, if it's convenient,  37 and I always hesitate to change any arrangements  38 that are made, but if counsel thought it would be  39 useful to sit during the week we were going to take  40 off, the week after next I suppose it is, I wouldn't  41 do so unless all counsel agreed because that has  42 been an off week for some time, I wouldn't mind  43 sitting during that week, if counsel think it would  44 assist to ensure a timely completion of any phase of  45 the case.  But counsel need not respond to that now.  46 I'd be glad to if they want to speak to it again at  47 sometime.  If anyone wants to do that, I'll be glad 5544  1  2  3  MR.  RUSH:  4  THE  COURT  5  MR.  RUSH:  6  THE  COURT  7  8  MR.  RUSH:  9  10  11  12  THE  COURT  13  MR.  RUSH:  14  15  16  17  18  19  20  THE  COURT  21  22  MR.  MACAU  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Mackenzie  to hear from you in that regard.  I think it's the  week after next that we're scheduled.  The week of May the 9th.  Yes.  I think that's right.  Yes.  And I'll leave it to counsel to get back to me  if they think that's a useful suggestion.  Yes.  There was one other matter too, my lord, and  that was the -- the next witness is Vern Smith, and  it's clear that we're not going to start or we're  not going to finish today, obviously.  Yes.  And my recommendation in light of that -- I should  think that at least half the day would be committed  to the further cross and re-direct of Mr. Morrison.  I suggest that at the completion of that then the  matter be adjourned to the beginning of the  following week.  And I did mention that to you, and  I think it certainly would be a cost factor for us.  There's no objection to that, is there, Mr.  Macaulay?  \Y:  No objection, my lord.  23 THE COURT:  Then we'll adjourn after we finish the evidence of  24 Mr. Morrison tomorrow.  25 THE REGISTRAR:  Order in court.  2 6 THE COURT:  Just a moment.  27  2 8 (PROCEEDINGS ADJOURNED AT 4:00 P.M.)  29  30 I hereby certify the foregoing to be  31 a true and accurate transcript of the  32 proceedings herein to the best of my  33 skill and ability.  34  35  36  37 Leanna Smith  38 Official Reporter.  39 United Reporting Service Ltd.  40  41  42  43  44  45  46  47 5545  J. Morrison (for Plaintiffs)  Cross-exam by Mr. Mackenzie  9  10  11  12  13  14  15  16  17

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