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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1988-06-24] British Columbia. Supreme Court Jun 24, 1988

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 7279  9  10  11  12 MR.  13  14  15  16  17  18  19  20  21  22  23  24 THE  2 5 MR.  26  27  28  29  30 THE  31 MR.  32  33  34  35 THE  3 6 MR.  37  38  39  40  41  42  43  44  45 THE  4 6 MR.  47  Vancouver, B.C.  June 24, 198 8  THE REGISTRAR:  Order in court.  In the Supreme Court of British  Columbia, this Friday, June 24, 1988.  Calling  Delgamuukw versus Her Majesty the Queen at bar.  I  caution the witness, you are still under oath.  THE COURT:  I have to tell counsel that I will have to adjourn  at 12:15 today.  I am entertaining our graduating  law clerks at lunch at about that time, so I have to  adjourn at 12:15 today.  Mr. Grant.  GRANT:  Yes, My Lord.  I just have a few -- a couple of  brief matters, one is Exhibit 31.  I just want to  note for the record, Exhibit 31 had been -- an  additional mark was put on that exhibit in Stanley  Williams' commission evidence.  And when you read  the transcript it will become apparent it was marked  on Ms. Koenigsberg's copy, and Ms. Koenigsberg, Mr.  Plant and I arranged to mark it on the exhibit.  And  it is a marking of a fishing site which is on the  highway side of the Skeena River just upstream of  the mouth of the creek known as Xsu gwin yookhl,  that's X-S-U, one word, G-W-I-N, second word --  COURT:  Sorry, X-S-U?  GRANT:  X-S-U, first word, G-W-I-N, second word,  Y-O-O-K-H-L, third word.  And it's been marked with,  I believe it is a red circle on that, and that  addition was from Stanley Williams' commission  evidence.  COURT:  All right.  GRANT:  The second matter I wish to raise, My Lord, is  relating to the fall schedule and that is you raised  the question of commencement on the 6th of  September.  COURT:  Yes.  GRANT:  It may well be -- it is anticipated that I will be  leading the first witness in the fall session.  And  the assizes are set in Smithers and a trial that has  been adjourned over because of no time is first on  the list of which I am counsel.  And it is set in  Smithers for the 6th of September, so I would ask  that our fall sitting commence the 12th of September  if my friends have no objection to that.  And the  second point with respect --  COURT:  Let's deal with that.  Mr. Goldie?  GOLDIE:  Well, Mr. Plant is unfortunately going to be  leaving us and he will be leaving on the 28th of 7280  1  2  1  3  1  4  5  THE  COURT:  (  6  MR.  GOLDIE:  7  THE  COURT:  ]  8  MR.  MACAULAY  9  THE  COURT:  10  11  MR.  GRANT:  ]  12  13  14  1  15  16  THE  COURT:  17  MR.  GRANT:  ,  18  19  ]  20  21  THE  COURT:  22  ]  23  1  24  MR.  GOLDIE:  25  ]  26  THE  COURT:  27  MR.  GOLDIE:  28  29  MR.  GRANT:  30  31  1  32  THE  COURT:  ,  33  MR.  GRANT:  34  35  THE  COURT:  36  MR.  GRANT:  37  38  MR.  GOLDIE:  39  ]  40  41  MR.  GRANT:  1  42  43  44  45  46  47  September.  We count every day of his presence as  gold, so to speak.  And I would hope that we might  get started off with somebody on the 12th for that  reason alone.  On the 12th?  I mean on the 6th.  Mr. Macaulay?  :  I am available on the 6th or the 12th.  Is the first witness likely to take from the 12th  to -- what is the date Mr. Plant is leaving?  No, the first witness would probably take one week.  But the next witness who probably go -- the  schedule, as I noted it, would be -- if we started  on the 12th it would complete on the 30th of  September if we went, as you proposed, three weeks.  Yes.  And go from the 12th to the 30th of September.  But  I suspect that the witness following the first one  may well go into that time or we have estimated that  those witnesses would be done before then.  Is Mr. Plant's presence desired -- mainly desirable  because he will be taking that first witness or  generally?  Not necessarily.  We had anticipated that we would  be getting into the experts.  Yes.  And I take it from what Mr. Grant says that the  first witness is a lay witness; is that correct?  Yes, at this time I am still meeting with our  clients, but I anticipate that that first witness  would be the last of the lay witnesses.  And it will take a week?  Yes, at this time I estimate that, maybe even  shorter.  It is a four-day week?  The 6th is a four-day week.  I would anticipate the  four days.  If the next witness is an expert, I assume we will  be learning shortly who that is.  That has a bearing  also on the question.  Well, the second arm that I have to deal with the  fall sitting may also have a bearing on this, My  Lord.  And that is that the next witness, as I've  indicated, would be a lay witness and the witness  following him would be an expert witness.  There are  a number of the expert witnesses who are in the  north.  They reside in the area.  And the following 7281  1  2  3  4  5  6  7  8  9  10 THE  11 MR.  12 THE  13  14  15  16 MR.  17  18  19  20  21  22  23  24  25  26  27  28  29  30 THE  31  32  33  34  35  3 6 MR.  37  38 THE  39  40  41 MR.  42  43  44 THE  4 5 MR.  46  47  COURT  GRANT  COURT  GRANT:  COURT:  GRANT:  COURT:  GRANT:  COURT:  GRANT:  witness, whomever that would be, would be one of  those witnesses.  And I would ask the court to consider also the  logistical questions that our clients are facing and  the cost questions that the court -- I would ask  that the court have that first sitting, that first  three-week sitting in Smithers for the completion of  the lay evidence and the calling of this first  witness.  Well —  And that would just be for one sitting.  Starting the fall term is a very difficult time, Mr.  Grant.  I am not at all enthused about being away  during the week of September -- during the month of  September.  Well, I am emphasizing that, as Mr. Rush indicated  earlier this week, we may be asking your lordship to  consider it.  And it would be -- of the sittings of  the balance of the Plaintiffs' case, it would be the  most appropriate and I appreciate what you are  saying.  It may be somewhat mitigated if it was  started on the 12th, but the cost of -- it would  help to mitigate some of the cost problems as well  as allowing some of the Plaintiffs to attend the  court who are unable to attend because of the  distance.  And the instructions I have and what I am  asking is only for that session and then we would  resume in the next session down here.  And I would  ask your lordship to consider that.  Well, I will be glad to consider it.  I am not sure  that any amount of consideration can solve my other  problems.  I am just not sure that I can just say  that I won't be here at the opening of the fall term  with the difficulties that we are facing and the  extraordinary demands that we are facing every day.  Of course, that's why I say if there was a way that  you could find to do that.  I'm not sure there is.  I can think about it, but  I'm not sure there is.  There are certain things we  can do something about and certain things we can't.  Of course, there would not be -- the courtroom would  not be available in Smithers in that first week  either so it would be the second week.  Well, is it available the second week?  Well, the sitting that I have the rotas for -- I  have the rotas and there is sitting for Smithers for  the County Court are the week of the 6th of 7282  1 September, so it is only that one four-day week.  2 THE COURT:  Do counsel have any submissions on the second branch  3 of what Mr. Grant has said?  4 MR. GOLDIE:  Not for me, My Lord.  5 MR. MACAULAY:  I have none, My Lord.  6 THE COURT:  Well, I am terrribly disturbed by all of this.  It  7 is an awkward problem.  There are some things I am  8 not allowed to consider apparently and the other  things I am -- the ones that I am entitled to  consider create enormous difficulties and I will  have to see what I can do about it.  I would  certainly be looking a lot more favourably on  hearing any evidence.  I am not happy about hearing  any at all for a number of reasons which might be  better if I don't say, but I am far more perceptive  to the suggestion of October than September.  I will  give it some thought.  There are some certain limits  I am not prepared to go for.  I have gone about as  far as I can go in some of these things and I do as  much as I can.  I would deal with problems and I am  disquieted with the thought of being away for an  extended period of time.  I will give it some  thought and I will let you know as soon as I can.  I think we should resolve the other problem.  I am rather disposed to accede to Mr. Grant's  suggestion to start out the 12th rather than the 6th  because at least if I am here it will help with that  term with the first week and every judge counts.  And I can perhaps relieve the burden that the bar is  so understandably upset about.  It may be best if we  make that decision now.  I think I am disposed to  say, yes, we will start on the 12th rather than the  6th.  I am very uneasy about starting in Smithers in  September.  GRANT:  I will bring that up with my clients and we may  broach the subject again.  GOLDIE:  My Lord, may I summarize --  COURT:  Yes.  GOLDIE:  -- the position that I took yesterday.  And I have  found the authority that I was referring to in  connection with the proper function of an expert.  The general objection to the admissability of the  map which is based upon a metes and bounds  description described by Mr. Sterritt is he is the  source of the information used by the cartographer.  The particular objection is that in creating the  metes and bounds description, Mr. Sterritt is  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35 MR.  36  37 MR.  38 THE  3 9 MR.  40  41  42  43  44  45  46  47 7283  1 offering an opinion on the evidence of those who  2 claimed to have the knowledge that would enable them  3 to testify directly.  4 I am not making any submission at this point  5 on the question of hearsay.  I made some remarks  6 about that yesterday, but I want to put that to one  7 side.  I say that if Mr. Sterritt is qualified to  8 offer that opinion then I ask that he be treated as  9 an expert and subject to the rules that have been  10 laid down with respect to experts and in respect of  11 which the Plaintiffs identified him as an expert.  12 Now, may I state what my understanding of what  13 an expert is supposed to do.  And I am going to  14 refer to the case of Kelliher, K-E-L-L-I-H-E-R,  15 versus Smith, 1931, S.C.R. at page 683 where Mr.  16 Justice Lamont for the majority of the court said  17 this in commenting upon a trial judge's direction to  18 the jury to disregard certain evidence.  And this is  19 his lordship's observation:  20  21 "In effect what these witnesses were being  22 asked was whether or not the plaintiff, in  23 operating the extinguisher the way he did,  24 had been guilty of negligence which  25 contributed to his injuries.  This was  26 surely the province of the jury.  It was  27 contended that the testimony was admissible  28 because the witnesses were experts.  In  29 Beven on Negligence, 4th ed., at page 141,  30 the author says:  31 'To justify the admission  32 of expert testimony two elements must  33 co-exist.  34 (1) The subject-matter of the inquiry  35 must be such that ordinary people  36 are unlikely to form a correct  37 judgment about it, if unassisted by  38 persons with special knowledge.  39 (2) The witness offering expert  40 evidence must have gained his  41 special knowledge by a course of  42 study or previous habit which  43 secures his habitual familiarity  44 with the matter in hand.'"  45  46 We are not concerned with that.  And his lordship  47 continues: 7284  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT:  MR. GOLDIE:  "In my opinion, the jury were just as  capable as the witnesses of forming a  correct judgment as to the plaintiff's  acts, and the evidence does not disclose  that either of the witnesses had ever  operated a similar fire extinguisher.  The  object of expert evidence is to explain the  effect of facts of which otherwise no  coherent rendering can be given."  And that is the Carter v. Boehm case.  Now, I find  that your lordship referred to that case in  Sengbusch v. Priest, 1986 I think it was — 1987, 14  B.C.L.R. (2d) at page 26.  And at page 40 your  lordship, after referring to the Kelliher case  referred to R. v. Abbey, another judgment of the  Supreme Court of Canada and quoted Mr. Justice  Dickson, as he then was.  And I quote, in part:  "With respect to matters calling for  special knowledge, an expert in the field  may draw inferences and state his opinion.  An expert's function is precisely this:  to  provide the judge and jury with a  ready-made inference which the judge and  jury, due to the technical nature of the  facts, are unable to formulate."  Now, that's my understanding of what an expert is.  The question here is whether the transformation of  the statements of the people from whom Mr. Sterritt  obtained information is such that unordinary people  are unlikely to form a correct judgment of that  information if unassisted by persons with special  knowledge to explain the effect of the facts.  To  put this in more concrete terms, I am going to refer  to Mr. Sterritt's affidavit which presumably he will  come to in the course of his evidence.  And it is  under tab 69 of the second book before your  lordship.  I'm sorry, what tab?  Tab 69, My Lord, book 2.  And there on page 2 under  paragraph 5 he says:  "The boundary of the Thutade Territory can  be described as follows:" 7285  1  2 And then:  3  4 "Commencing at the northeast end of Thutade  5 the boundary runs west along the north shore  6 of Thutade to the west end of the lake.  Here,  7 the boundary runs west up the centre of  8 Thutade creek to the height of land south of  9 Hoy Lake."  10  11 That, broadly speaking, is a metes and bounds  12 description and is comparable to the metes and  13 bounds description which he provided the  14 cartographer in the map to which I've taken  15 objection.  The same format is used with a little  16 greater detail in the metes and bounds description  17 that is provided to the cartographer.  This is the  18 boundary of one of Mr. David Gunanoot's territories  19 and the information is based upon what Mr. Gunanoot  20 told him as he says in paragraph 4:  21  22 "I was instructed about the Thutade  23 Territory and its boundary by the former  24 'Niikyap, Wolf Clan, who is now deceased."  25  26 Your lordship, of course, just recently saw a  27 portion of Mr. Gunanoot's commission evidence and I  28 assume it is -- I hope it is reasonably still fresh  29 in your lordship's mind.  I am not -- just to put  30 another thing out of the way, I am not now talking  31 about whether Mr. George's translation of this metes  32 and bounds description on a map is accurate, that is  33 something for Mr. George.  I am talking about the  34 transformation of the evidence of Mr. Gunanoot to  35 that metes and bounds description and the evidence  36 in respect of the external boundary of all the  37 hereditary chiefs who provided information on that  38 point.  39 Now, in Mr. Gunanoot's commission evidence, he  40 has made a number of statements about the territory.  41 For instance, in Volume 2 at page 167.  Excuse me,  42 My Lord, I think I have the wrong page number.  I  43 think I'm in volume one.  Yes, at volume one, page  44 24, at line 17 in his examination in chief.  45  46 "Q  Now, I want to ask you about 'Niikyap's  47 territory. 7286  1 A  Territory?  2 Q  Yes.  Where is 'Niikyap's territory  3 located?  4 A  It's kind of far, ten mile on the other  5 side of Kisgagas.  6 Q  The other side of Kisgagas?  7 A  Yes.  8 Q  What's it called?  9 A  Canyon creek."  10  11 And he asks him for the Indian name.  Line 33:  12  13 "Q  How far down the river -- or going up  14 the river is 'Niikyap's territory?  15 A  Right about the creek which is --"  16  17 And then he gives an Indian name for that.  18  19 "Q  As you go along the Babine River, how  20 far does 'Niikyap's territory go?  21 A  Gee, I don't know that.  Quite a way  22 up.  23 Q  Can you tell me how many miles?  24 A  Yes, right on top of the -- it's right  25 at the -- some kind of  timber line,  26 right on top, goes down to what they  27 call Xsimihlmihl, the little creek goes  2 8                          down that way."  29  30 And then he is asked again what is the little creek?  31 He is asked a number of questions about migration.  32 He is asked a question about a battle with the  33 Stikines and again there is a reference to  34 territory.  There was a peace settlement, this is  35 page 63 at line 20.  36  37 "Q  Was that the end of the war between  38 Stikines?  39 A  Yes, that's why they're giving all  40 those hides, and things like taht.  41 When they got those painted poles like  42 that, and there's the other one, and  43 there's the line right there, and  44 there's Hazelton, and Kispiox on  45 that -- on this side.  No more war."  46  47 And then he was asked: 7287  1  2 "Q  Where was the place where the skins  3 were left?  4 A  I don't know."  5  6 And he goes on to discuss that.  At page 66 in  7 volume 1 there is a further discussion of territory  8 and he describes it in these terms line 26:  9  10 "Q  Now, David, I just wanted to ask you  11 about the territory around the big  12 meadow.  I think the name of that --"  13  14 And then there is an Indian name.  15  16 "Q  Is that territory today in the house of  17 'Niikyap?  18 A  That's right."  19  20 And then there are extended discussions about Bear  21 Lake and people called Bear Lake Charlie and Black  22 Hat Tom, about telling Gunanoot about Arrow Rock and  23 the confrontation was from people at Tatla Lake and  24 the territory that his mother had.  And how Gayle  25 owned land all over the place and the territory of  26 other people.  And then in volume two at page 167, I  27 think this is Mr. Plant's cross-examination at line  28 13:  29  30 "Q  Is there a may -- do you have a map of  31 'Niikyap's territory?  32 A  No.  33 Q  You don't have map of the territory of  34 'Niikyap?  35 A  Follows the creeks around.  36 Q  That's what?  37 A  Same as me on my trap line..."  38  39 I could multiply those, but I think your lordship  40 will recall that that is a reasonable example of Mr.  41 Gunanoot's evidence.  Now, when that's translated by  42 Mr. Sterritt into metes and bounds description it  43 becomes a continuous uninterrupted line.  It fills  44 in gaps.  It expands the word "around".  In my  45 submission, it seeks to explain the effective facts  46 of which otherwise no "coherent rendering" can be  47 given.  That's what it seeks to do.  He has taken a 72?  1  2  3  4  5  6  7  8  9 THE COURT:  10  11  12 MR. GOLDIE:  13  14 THE COURT:  15 MR. GOLDIE:  16  17  18  19 THE COURT:  20 MR. GOLDIE:  21  22  2 3 THE COURT:  24 MR. GOLDIE:  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  mass of material, and I am now addressing -- I am  moving away from Mr. Gunanoot, but I am now  addressing the metes and bounds description of the  map that I have taken exception to.  In this case he  has assembled a mass of material accumulated over a  decade, part and full-time labour.  That requires  the application of analysis and judgment, the  organization of perhaps disjointed notes.  Mr. Goldie, I have assumed that the metes and bounds  description was an external boundary, am I wrong in  that?  There are metes and bounds description of external  and internal.  Are we talking about both or what?  Well, I used the metes and bounds description which  will be submitted to your lordship for Gunanoot's  property because that was an example that I assumed  would be fresh in your mind.  That was an internal boundary?  That was an internal boundary, but the process with  respect to the external boundary is precisely the  same.  Yes.  All right.  And your lordship will have in mind that there is  the evidence of Mr. Sterritt in organizing notes  taken on various occasions, formal and informal.  I  think he even mentioned the back of cigarette boxes.  He has taken all of that and provided a single,  apparently coherent, uninterrupted line.  I may be  wrong, but I have yet to find direct evidence, and  by that I am talking about hereditary chiefs, which  speaks to a boundary line.  It speaks to features.  It speaks to:  That's mine, that's his.  On the  other side of that creek that's so and so.  It is  the evaluation and reconciliation, and I emphasize  the word "reconciliation", of inconsistencies and  disagreements into what is apparently, as I say, a  single line spoken with a single voice.  Mr. Sterritt, so far as his summary that was  provided us last year, had no doubt about his  status.  He said on page 22 of his summary:  "In summary, my boundary mapping work shows  that each Gitksan House and Wet'suwet'en  Clan exclusively owns a precisely defined  land territory." 7289  1 And then he goes on to make a statement of his  2 observations at feasts.  And then he says:  3  4 "These are the bases of my opinion that the  5 area of land described in Appendix A of  6 this report is accurately defined and is  7 owned by the Gitksan and Wet'suwet'en  8 Chiefs who are Plaintiffs in this case."  9  10 Now, that amended schedule in his summary was, as I  11 understand it, the metes and bounds description of  12 the external boundary, so I say he had no doubt that  13 he was rendering an opinion.  14  15 Now, if your lordship finds that the  16 continuous line represented by the metes and bounds  17 description follows naturally from the evidence that  18 I have read to you, and to which I've made  19 reference, then there is no need for Mr. Sterritt's  20 intervention between the witnesses and the map and  21 his evidence ought to be rejected in that sense for  22 the reason given in Smith as he is not tendered as  23 the source of the primary evidence.  24 So my objection comes down to this, either he  25 is treated as one who assists the court in the  26 manner that I have described and therefore is  27 qualified to offer his opinion, in which case I ask  28 that he be treated as an expert as he was once  29 tendered as or if he is -- or if your lordship's  30 opinion is that his intervention is not required,  31 then I ask that his evidence be rejected because it  32 is not the primary evidence which is, at least in  33 part, in the record already.  34 THE COURT:  Thank you.  Mr. Macaulay.  35 MR. MACAULAY:  In the case of the metes and bounds, it seems to  36 me, My Lord, that this is clearly an example of the  37 expression of an expert opinion.  May I illustrate  38 that submission in this way:  Mr. Sterritt in March  39 provided the summary that Mr. Goldie had referred  40 to.  It was dated March 1987 and it had attached one  41 of those very lengthy metes and bounds descriptions  42 of the outer boundary which now is represented on  43 map 6 of the series of maps.  Within a few weeks, a  44 month or not much more than a month, Mr. Sterritt --  45 presumably Mr. Sterritt, it might have been someone  46 else -- revised almost every page of that metes and  47 bounds description contained in his opinion, but in 7290  1 a way that only an expert could address and I will  2 use an example.  On page 3 of his opinion, this is  3 his expert's opinion, he refers towards the bottom  4 of the page:  5  6 "...thence in a south easterly direction  7 along the center line of the Babine River  8 to the confluence of an unnamed creek and  9 the Babine River, said confluence being  10 30,290 metres north and 14,450 metres east  11 of the northeast corner of lot 551."  12  13 A few weeks later he had apparently reconsidered the  14 matter and a new Statement of Claim, including an  15 Appendix A which was the metes and bounds, was  16 delivered to us.  And by that time, and you would  17 have to see the two documents together and see the  18 transcripts of my reading to understand the  19 differences in detail, but it now reads:  20  21 "...thence in a south easterly direction  22 along the southern bank of the Babine  23 River..."  24  25 It is no longer the center line of the Babine River.  2 6 And they add the words:  27  28 " the opposite bank of..."  29  30 And then they continue with the old text:  31  32 "...the confluence of an unnamed creek of  33 the Babine River...",  34  35 and add the words:  36  37 "...crossing the river at this point."  38  39 Now, those are not things that you would see on a  40 map, you are shifting from the center line to the  41 south bank.  That's clearly the hand of an expert  42 making those fine adjustments.  And I might say that  43 there are maybe 20 or 30 changes of that kind.  They  44 may or may not have great significance.  Who owns  45 the whole river, I suppose, is the question.  Does  46 somebody -- these are external boundaries, so the  47 question there would be does the neighbouring tribe 7291  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19 THE COURT:  2 0 MR. RUSH:  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT:  share the ownership of the river with the Gitksan  chief in question or do the Gitksan own the whole  river right to the far bank or own none of the  river.  And I doubt very much -- we haven't heard  any evidence of any chief giving that kind of  information, detailed information.  Maybe there was  some detailed information, but it shows the hand of  an expert making all those fine adjustments to a  virtually incomprehensible piece of composition or  easily comprehended only by an expert.  And I could  read more of them.  There are changes in boundary.  There are actual geographic changes or features.  One in particular is included in one and excluded in  the other.  It would appear that those metes and  bounds descriptions are -- could only be done by  somebody with expertise, with a very considerable  amount of expertise.  Thank you.  Mr. Rush.  Well, I have a number of points in response, as you  might gather, My Lord.  The first is that the  triggering item of evidence that led us into this  discussion was the introduction of the map of the  metes and bounds and Mr. Goldies' objection springs  from that fact.  And we now have it expanded into a  more fully developed objection about the nature of  Mr. Sterritt's evidence.  Let me say firstly, as a  matter of clarification, that the metes and bounds  description that is -- and you will hear evidence of  this, that is appended to Mr. Sterritt's report is  not one that he drafted, but one that he approved.  The evidence will be that Mr. Marvin George, the  cartographer, is the person who drafted the metes  and bounds description.  And the evidence will be  that Mr. Sterritt went over the metes and bounds  description point by point and reviewed that and  concluded that that was the boundary of the --  external boundary of the Gitksan and Wet'suwet'en  chiefs and it accurately depicted their boundary.  So that's the first point that I want to make.  Well, does that make any difference if a person  doesn't actually write the words but examines and  approves what someone else has done?  The weight to  be given to his evidence, if it is to have any  weight at all, must carry with it the implication  that the eventually he did the same thing himself,  although by a different process.  He satisfied 7292  1 himself that he was correct -- he has to satisfy  2 himself it is correct and he has got to do it in a  3 different form.  4 MR. RUSH:   I don't think there is any necessary distinction  5 between the two, but I think it is an important  6 point to make that it was not Mr. Sterritt's hand  7 who drafted the metes and bounds description.  8 THE COURT:  But that also leads me to ask this, then:  Is this  9 evidence going to go through Mr. George or be  10 admissible through Mr. George, if you choose to make  11 it admissible through Mr. George, and that being so  12 the only reason to adduce it through Mr. Sterritt is  13 to buttrice what Mr. George will later say?  14 MR. RUSH:   Well, that is exactly it.  Mr. George will be  15 called.  He will speak to the metes and bounds of  16 the external boundaries and he will speak to -- he  17 will speak to what he has done and he will be  18 tendered as an expert.  19 However, My Lord, the issue, in my submission,  20 that my friends raise is not really one that  21 pertains to that description or from that particular  22 map that flows from the description.  The question  23 that I hear my learned friends saying is that any  24 reconciliation, as it is suggested, of information  25 past from the hereditary chiefs to Mr. Sterritt and  26 any either passing of the information from  27 discussion with Mr. George amounts to the making of  28 an opinion separate from the opinion that will be  29 offered by Mr. George.  And for that reason, they  30 say -- they argue that the evidence presumably that  31 has been led and is being led now contains  32 inferences of Mr. Sterritt which are akin to or are  33 expert inferences about which your lordship could  34 not do without in order to understand the evidence.  35 Firstly, I must say that the responses I have  36 are these:  In my submission there will be  37 affidavits of the evidence of the hereditary chiefs  38 tendered in total.  You have the Gitksan affidavits  39 now.  Mr. George, his evidence will bear on and  40 relate to those affidavits.  And in my submission,  41 the affidavits themselves form the underlying  42 factual basis upon which Mr. George's evidence in  43 relation to what we will be tendering as the  44 external -- the final external boundary map of the  45 Gitksan/Wet'suwet'en hereditary chiefs and that map  46 will be based on that affidavit evidence.  47 Now, in my submission, My Lord, Mr. Sterritt's 7293  1 evidence now is little more than describing a  2 process by which he was involved in interviewing  3 hereditary chiefs, obtaining their knowledge and  4 with that knowledge passing it along to Mr. Marvin  5 George.  And you will hear evidence about his  6 participation in the drafting of affidavits as well.  7 Now, in my submission the process that Mr.  8 Sterritt is involved in here may involve inferences,  9 but in the context of the nature of the inferences  10 that he is engaged in making are those that you  11 might expect of a lay witness who perceives facts,  12 who is knowledgeable of a society, who is  13 knowledgeable of the language of description of that  14 society and tenders that language of description in  15 a number of forms that you are going to hear about  16 through field books, through the placement on  17 topographical summary sheets.  And in my submission,  18 although my learned friend tried to draw in absolute  19 poles, an expert who must assist the decision-maker  20 with drawing of inferences that the decision-maker  21 could not draw for himself or herself on the one  22 hand.  And then the other hand, the pole of:  Well,  23 the police officer at an accident site who draws  24 certain conclusions about the length of a skid mark  25 or the length of a vehicle.  And in my submission,  26 there is a range, an understandable range that is  27 spoken of in the text that I drew from Sopinka and  28 Lederman, evidence in civil cases on the opinion of  29 lay witnesses in which inferences have been  30 permitted and indeed are expected to be made of  31 witnesses in certain contexts because it would be an  32 absurdity to make a distinction between the fact,  33 the absolute statement of the fact, and a necessary  34 inference that flows from the statement of the fact.  35 Now, I do say, and the evidence will be, that  36 the drawing of the line and the making of the metes  37 and bounds description by Marvin George is in fact  38 an opinion.  That is an opinion for him to make.  39 That is not what Mr. Sterritt did.  And my  40 submission is that where there are inferences, and I  41 have to say that I think there are some inferences  42 that are involved in the gathering of the facts, but  43 I say that these inferences logically can join to  44 those facts and that to do without them, I think,  45 would be an absurdity to the court because it would  46 break the very descriptive narrative about the  47 information-gathering process that was involved 7294  MR. RUSH:  1  2  3  4  5  6  7  8  9  10  11  12  13  14 THE COURT:  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  here.  And, My Lord, I just cite in terms of -- I did  not go deeply into the subject independently of  referring to a secondary source, but at page 301 of  Sopinka, the author states:  "In Canada, it has been held that with  respect to matters of common experience, a  lay witness will be allowed to express an  opinion if he possesses personal knowledge  of the facts upon which that opinion is  based."  But doesn't that relate to things such as expressing  opinion that a person who is staggering and falling  down and whose eyes are bloodshot and speech is  slurred is drunk?  Well, that's right, it does.  But what I say to your  lordship is that it is indicative of the spectrum of  permissible inferences that can be drawn from facts.  And I say that Mr. Sterritt's evidence falls into  that category when perceived in the context of the  fact gathering process that he was engaged in and  the fact of his being a member of the  Gitksan/Wet'suwet'en society.  And as well, I think you must see his evidence  contextually from the evidence that you heard from  some 20 chiefs about the nature of that society.  And in addition, My Lord, to the fact that many of  these chiefs, and I refer firstly and just by  example Gitludahl or Pete Muldoe who has testified  about the boundary of I think some 17 territories  and described those in an affidavit and was  cross-examined on them.  And I think your lordship  must view Mr. Sterritt's evidence contextually with  regard to Mr. Pete Muldoe, Mr. Stanley Williams and  a number of other chiefs who have attested about the  nature of where boundaries are found to be, that is  in relation to creeks and rivers and heights of  lands and valley floors and that type of thing as  facts which I say are common within the culture.  And I think that there is a sufficient body of  evidence for your lordship to -- from people who  have -- who are not, if you will, in the dual  capacity that Mr. Sterritt found himself in of one  being immersed in the culture as well as one who is  gathering from the culture.  He has received that 7295  1 information directly from people who are the Gitksan  2 and who are the Wet'suwet'en society, and I think  3 for that reason your lordship can take, where those  4 inferences emerge, take it from -- take those  5 inferences as informations of a lay person operating  6 intimately within that society.  7 With respect to the comments made by Mr.  8 Sterritt in terms of Mr. David Gunanoot's evidence,  9 Mr. Gunanoot's examination occurred on March 1,  10 1986.  The first passage referred to -- referred to  11 a territory, a fishing territory called  12 Gwitselasgwit by David Gunanoot and other  13 territories were referred to in general terms.  You  14 will hear evidence from Mr. Sterritt that the --  15 following that discovery Mr. Sterritt had further  16 and more intensive discussions with Mr. David  17 Gunanoot and that led to a finer description, a more  18 refined description of the territories that are  19 territories of the House of 'Niikyap.  Furthermore,  20 that you will hear evidence about the fact that  21 there are other subchiefs of the house of 'Niikyap  22 that -- who are the reservoires of more detailed  23 information that was the basis for the information  24 relied upon by Mr. Sterritt, one such chief being  25 Haimadam.  26 I want to point out to your lordship that the  27 evidence of Mr. Sterritt with respect to his status,  28 this evidence -- the nature of Mr. Sterritt's status  29 is a function of counsel's determination.  And I  30 have to agree with Mr. Goldie that Mr. Sterritt in  31 the eyes of counsel is an expert.  But that's  32 neither here nor there, it is the Plaintiffs'  33 choice -- counsel's choice to tender Mr. Sterritt in  34 whatever way we choose in recognizing the  35 limitations, and I have already commented on what I  36 see to be the real limitations.  And with respect, I  37 don't consider them to be very -- to be reasonable  38 limitations or expensive ones in respect of his  39 testimony.  But in my submission, it is counsel's  40 determination as to his particular status.  41 Now, having said all of that, counsel, Mr.  42 Grant and I, have considered the comments made by  43 your lordship and the discussion that has been  44 raised by my learned friends and we are going to  45 review the status of Mr. Sterritt.  We are going to  46 look at this afresh to determine whether or not  47 there is merit in this submission.  At the present 7296  1 time, I am of the view there is no merit to it and  2 that is the reason for my submission.  But we gave  3 this matter some considerable thought last night and  4 we intend to give it some more thought on the  5 weekend.  6 But at the present time, our view is that Mr.  7 Sterritt is tendered as a lay person to speak about  8 knowledgeable facts that he has.  But at the same  9 time, we recognize that there is a very delicate  10 line here about which we want no mistake about the  11 nature of Mr. Sterritt's evidence.  We are going to  12 review and think about the decision we make on the  13 weekend, and I think we would be in a better  14 position on Monday morning about whether or not  15 there is any necessity to change the basis upon  16 which Mr. Sterritt has been tendering his evidence.  17 Whether or not Mr. Sterritt is tendered as an  18 expert, in my submission, in no way creates an  19 objection that Mr. Goldie hints at as to his  20 evidence being evidence that is created as some form  21 of intervention between the drawing of a line by the  22 expert Mr. George and the generation of the  23 knowledge from the hereditary chiefs.  24 In my submission, My Lord, you heard quite  25 exstensive evidence from Alfred Joseph to hear what  26 role he played in this.  In fact, you saw a  27 videotape late one afternoon of Alfred Joseph and  28 Johnny David and Max Lax Lex in which that process  29 was visually described.  In my submission, it is an  30 integral part of the case of the Plaintiffs to  31 demonstrate the progress -- the process and the  32 progression of understanding of those persons who  33 gather the information from the hereditary chiefs  34 and to pass that information to you.  And from that,  35 as you will hear in the evidence, the line of the  36 external boundaries and eventually the internal  37 boundary during this period lines were drafted.  And  38 we do say that the process of drafting that line on  39 the metes and bounds, of course, is that function, a  40 proper function for someone of cartographic skills.  41 Nonetheless, in my submission, it no way detracts in  42 the slightest from the integral role that Mr.  43 Sterritt and Mr. Joseph and Mr. Glen Williams have  44 played in terms of gathering and transmitting that  45 information to Mr. George.  46 So in sum, My Lord, I say that our position at  47 the moment is there is nothing barring Mr. Sterritt 7297  1 from proceeding with the giving of his evidence as  2 it's been accepted.  And having said that, My Lord,  3 we, counsel, will review Mr. Sterritt's status and  4 determine whether or not we will alter that status  5 and make a submission to you on Monday on that  6 point.  7 THE COURT:  What are you suggesting, Mr. Rush, that I give  8 judgment on the objection now so that you will have  9 the benefit of that, if I can use that term  10 descriptively, while you are carrying out your  11 reconsideration or do you suggest that the matter be  12 stood over generally and we go on with some other  13 evidence in the meantime?  14 MR. RUSH:   Well, My Lord, it is my view that the history of the  15 decision in respect of the determination of Mr.  16 Sterritt's status goes back to last summer where  17 counsel made a decision to proffer territorial  18 affidavits of the chiefs themselves.  And that had a  19 very substantial important -- it was an important  20 turning point in terms of the presentation of  21 certain evidence and our desire to try and find a  22 summary and a convenient way of presenting evidence  23 without calling a host of chiefs to speak directly  24 to their territories.  And so following from that,  25 decisions were made.  Of course, that resulted from  26 interaction among counsel and with the bench and so  27 I --  28 MR. GOLDIE:  I hope my friend is not suggesting that counsel for  29 the Defendants was involved in the process he is  30 talking about.  31 THE COURT:  I don't think so.  Unless you people have been -- --  32 MR. RUSH:   There are other ways I might engage counsel for the  33 defendant, but that isn't one of them.  I am sure he  34 wouldn't want to be involved in that anyway.  But I  35 say, My Lord, that in respect of the position  36 that -- the options which you pose now, in my  37 submission there is little value proceeding along  38 the line of leading of evidence if your lordship is  39 swayed by the arguments or sympathetic to the  40 arguments raised by the defendants.  And in my  41 submission, counsel would be assisted by your  42 determination of this issue.  And for that reason, I  43 think your lordship should make a determination on  44 this objection and we can proceed from there.  45 THE COURT:  All right.  Thank you.  46 MR. MACAULAY:  My Lord, if there is to be a ruling made on Mr.  47 Goldie's submission, his objection, I should tell 729?  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT:  MR. GOLDIE:  your lordship that there had been a misunderstanding  about the authorship of the metes and bounds.  Clearly from my earlier submission, I had assumed  and I had understood that Mr. Sterritt was the  author, but it depends on how you define authorship.  The Plaintiffs provided us with an affidavit in  connection with the second last -- their application  for the second last Statement of Claim, the  amendment to the Statement of Claim which is  included in Appendix A.  And it is the affidavit of  Shirley Meldon which in paragraph 14 goes on as  follows:  "I have been informed by Peter Grant that  prior to the last pre-trial conference, he  had requested Marvin George to prepare an  updated map showing the external boundaries  of the territory as determined by Neil  Sterritt.  Marvin George has been unable to  prepare that map as he has been waiting for  topographical base maps from the Lands  Branch of the Province of British Columbia,  which were ordered in early March.  I have  been informed by Peter Grant that as soon  as those maps are received, Marvin George  will be able to prepare a base map and have  that map drafted, at which time it shall  form part of the application to amend as a  new Schedule B to the Statement of Claim.  The amended Schedule A of the Statement of  Claim has already been delivered to both  Defendants as appendix to the opinion  report of Neil Sterritt."  He is either the author or he is the person who  determined the boundaries of the territory, I don't  think there is much difference between them.  Those  are the Plaintiffs' descriptions, characterization  of Mr. Sterritt's involvement.  Yes.  My Lord, I just have a few statements in reply.  My  friend stated that this is just really a matter of  clarification, that he didn't prepare the metes and  bounds report but in some way he is able to clarify  them, and I say if he is not an expert his approval  is irrelevant.  If there are no inferences to be  drawn that he is drawing, then the evidence is 7299  1 wholly unnecessary.  Again my friend referred to the  2 affidavits.  If they form the underlying evidence  3 for Mr. George, then Mr. Sterritt's evidence is  4 wholly unnecessary.  5 My friend made a submission that Mr. Sterritt  6 is in the position of a layman who may draw  7 inferences.  He is not in that position.  He is  8 seeking to persuade your lordship and he and only he  9 can draw inferences which are, in effect, the very  10 things that your lordship are being asked to decide  11 in this case.  The boundaries are an integral part  12 of the claim to ownership and jurisdiction.  And Mr.  13 Sterritt is saying:  There are the boundaries.  Now,  14 he has made it clear time after time that he is not  15 a repository of original fact, he is a collector.  16 Now, I was surprised to hear my friend say it  17 is for counsel to determine status.  It is for the  18 court to determine whether the evidence is  19 admissible as the opinion of an expert or whether it  20 is to be rejected as not being within the personal  21 knowledge of the witness.  22 THE COURT:  Thank you.  23 I am dealing at the moment with a narrow  24 question of whether Mr. Sterritt, not having been  25 tendered, although in part qualified as an expert in  26 the art or skill of making maps, may give evidence  27 of the preparation by himself or alternatively the  28 approval by him of what someone else has done in  29 that regard.  It, in my view, makes no difference  30 whether he made the metes and bounds descriptions or  31 he applied his intellectual powers and skill in  32 reaching the judgment necessary to approve it.  33 I am satisfied that from the data furnished to  34 the court by viva voce and by affidavit which was  35 largely collected by Mr. Sterritt that I would not  36 be able without expert assistance to translate that  37 data into a boundary or either external or dividing  38 line between territories of adjacent houses.  I  39 think the preparation of a metes and bounds  40 description or of a map showing boundaries from this  41 raw data can only be given in evidence by an expert  42 witness.  I think in this area that -- in this  43 narrow area, I am satisfied that Mr. Goldie's  44 objection is valid and I do not think that I could  45 allow a person not qualified as an expert to give  46 evidence about the preparation of or validity of a  47 metes and bounds description or of a map showing 7300  1 boundaries in the particular circumstances of this  2 case.  I'm heartened to know that this evidence is  3 going to be adduced and is going to be available to  4 assist me in the subsequent expert evidence of Mr.  5 George, if counsel carry through on their stated  6 present intention of adducing that evidence through  7 Mr. George, assuming, of course, that he will be  8 qualified.  9 It follows, in my view, that the only  10 difficulty I have here is that counsel have chosen  11 not to tender Mr. Sterritt as an expert witness,  12 although, as I have said, he has been at least  13 partly qualified in that connection.  I think that I  14 do need expert evidence, as I've said, to understand  15 and make meaningful use of the data that he has  16 largely collected.  And for all those reasons, it is  17 my conclusion that I cannot hear Mr. Sterritt in his  18 role as a non-expert, but that I could hear it and  19 be glad to have that evidence if the highly  2 0 technical impediment that I had mentioned is removed  21 which is in the power of the Plaintiffs to remove.  22 I am not able to cast or project myself forward into  23 the evidence to know whether what I have just said  24 applies to a lot of the future evidence of Mr.  25 Sterritt in chief or whether it is defined to this  26 narrow question, but I think I must give effect -- I  27 must accede to the objection.  I do not think this  28 evidence can be given by a non-expert for what I  29 will call, for want of a better expression, the art  30 of map making.  It is time for the morning  31 adjournment and I will adjourn for the usual morning  32 break so that counsel may consider the consequences  33 of what I have just said.  34 THE REGISTRAR:  Order in court.  Court will recess.  35 (PROCEEDINGS ADJOURNED AND RESUMED PURSUANT TO MORNING RECESS)  36  37  38 I hereby certify the foregoing to  39 be a true and accurate transcript  40 of the proceedings herein  41 transcribed to the best of the  42 skill and ability.  43  44  45  46 LISA REID, OFFICIAL REPORTER  47 UNITED REPORTING SERVICE LTD. 7301  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  (PROCEEDINGS RESUMED PURSUANT TO AN ADJOURNMENT)  THE REGISTRAR  THE COURT  MR. RUSH:  THE COURT:  MR. GOLDIE  Order in court.  Mr. Grant -- I am sorry.  Mr. Rush?  My lord, the 15 minutes at the break wasn't really  enough time to consider all of the considerations  that I think have to be made and especially in  relation to the instructions that I think we need  from our clients and, so given that, we are of the  mind at the moment that we should allow the weekend  to pass before we make our next judgment because I  really feel that there isn't a lot of point in my  directing Mr. Sterritt on what could be considered  colloquially as non-expert evidence if our real  intention is to proceed with Mr. Sterritt as an  expert.  So it is our recommendation that you  consider deferring the matter -- adjourning the  matter until Monday morning and hopefully I will be  in a better position to advise your lordship at that  time how we intend to proceed with this evidence.  All right.  Mr. Goldie and Mr. Macaulay, any  objection?  It is Friday.  Well, I can only repeat that if Mr. Sterritt is  tendered as an expert, I expect him to be tendered  in the same way as any other expert is in this  particular case. 7302  1 THE COURT:  2 MR. GOLDIE  3 THE COURT:  4 MR. GOLDIE  5  6  7  8  9 THE COURT:  10  11  12 MR. GOLDIE  13  14 THE COURT:  15 MR. GOLDIE  16 MR. RUSH:  17 MR. GOLDIE  18  19  2 0 THE COURT:  21 MR. RUSH:  22 MR. GOLDIE  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  4 0 THE COURT:  41  42 MR. GOLDIE  4 3 THE COURT:  44 MR. GOLDIE  45  46  47  I am not sure I understand what that means.  :  I will expect a report and I will --  I thought you had received a report.  :  No.  We received a summary of a report which is  incomplete and I, for instance, if I am going to  deal with Mr. Sterritt as an expert, I am going to  deal with him far differently than I was prepared to  deal with him as a layman.  Well, does the Evidence Act call for a report, or is  there some rule, some order that I made at a  pretrial conference?  :  You made an order.  There have been a couple of  orders.  What do they say?  :  That there will be a report --  No, that's not what it says.  A summary or a report.  :  But the report would be filed 60 days before the  expert is called.  That was done in Smithers last  year.  When was the summary delivered?  March of 1987.  :  But maybe the report will turn out to be just the  same as the summary, I don't know.  But my concern  is that, for instance, I do not have a cartographer  available to me because I didn't anticipate that I  would have to examine Mr. Sterritt in his capacity,  I forget how he framed it in his summary, and this  was why I was so concerned to know whether he was  being presented in the way he was.  He talks about  using methods to more precisely define the  boundaries; my boundary mapping work shows A, B, and  C, and that isn't the way I was going to treat Mr.  Sterritt.  To put it a little more accurately, it  wasn't in the nature of the cross-examination that I  anticipated.  Maybe we can deal with it this way:  Depending on what my friends do, we may be able to  have them lead whatever evidence they want to lead  and I will make a submission if I require time at  the conclusion of his evidence.  Well, that's of course always open to counsel to  make --  :  Well —  -- such a submission.  :  I am reluctant however until I hear what their  submission is.  I am reluctant to waive the -- not  the advantage, but the ability to organize the time  that your lordship's ruling provides. 1  THE  COURT:  2  3  4  5  6  7  8  9  0  MR.  GOLDIE  1  2  THE  COURT:  7303  Well, all right.  My present view is -- but I speak  without having examined Mr. Sterritt's summary, is  that if Mr. Rush said, all right, now I am tendering  Mr. Sterritt as an expert in map-making, subject to  any objection arising out of the form of the  summary, I would say that he is, subject to the  qualification -- subject to cross-examination, if  any, I would say that I think he can proceed with  the evidence right now.  But that may be simplistic.  I do want to cross-examine him on his  qualifications.  That's the qualifications I had as well.  Because I  13 don't think one needs a Phd. in cartography, if  14 there is such a thing, to be of assistance to the  15 court in this area.  A career in mining technology  16 of the kind that Mr. Sterritt described in my  17 present view would be sufficient but that may prove  18 to be unduly simplistic, so I won't presume to  19 prejudge that issue.  20 I must say however that that has been my reaction  21 to what I have heard to date, that if he was  22 tendered, subject to cross-examination, we can just  23 carry on, and I hope that's what turns out to be the  24 case.  Should we adjourn -- I haven't heard from  25 you, Mr. Macaulay?  2 6 MR. MACAULAY:  I have no submission.  27 THE COURT:  All right.  Ten o'clock Monday morning then.  28 MR. RUSH:  Thank you, my lord.  29 THE REGISTRAR:  Order in court.  Court will adjourn until  30 ten o'clock Monday.  31  32 (PROCEEDINGS ADJOURNED AT 11:40 A.M. TO MONDAY, JUNE 27,  33 1988, AT 10:00 A.M.)  34  35 I hereby certify the foregoing to be  36 a true and accurate transcript of the  37 proceedings herein, transcribed to the  38 best of my skill and ability.  39  40  41  42  43  44 TANNIS DEFOE, Official Reporter  45 United Reporting Service Ltd.  46  47


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