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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1988-06-13] British Columbia. Supreme Court Jun 13, 1988

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 6940  Vancouver, B.C.  June 13, 1988  THE REGISTRAR:  Order in court.  In the Supreme Court of British  Columbia, this Monday, June 13, 1988.  Calling  Delgamuukw versus Her Majesty the Queen at bar, My  8 Lord.  9 THE COURT:  Mr. Grant.  10 MR. PLANT:  I have one housekeeping matter of sorts that I could  11 dispose of very quickly.  12 THE COURT:  Thank you.  13 MR. PLANT:  When Madam Registrar and I were reviewing the grey  14 book of documents re Glen Williams after court a  15 week ago Friday, we took out all of the documents  16 that were not marked as exhibits with two  17 exceptions, and we had just a grain of doubt whether  18 they should be taken out without some comment from  19 your lordship.  At tab five of that book was the  20 affidavit of Glen Williams sworn in the Fishing  21 By-law case.  It is June 1986.  I made some  22 reference during Mr. Williams' evidence to that  23 affidavit during my cross-examination of Mr.  24 Williams, I should say.  I read to him some  25 paragraphs from the affidavit.  I did not seek to  26 have the affidavit marked as an exhibit and I do not  27 now seek to have it marked as an exhibit.  From my  28 prospective, I would be quite happy to take it out.  29 But as I say, a week ago Friday Madam Registrar and  30 I had some concern about whether that would be  31 appropriate given the exstensive reference that had  32 been made to it.  33 And perhaps in the same vein I should refer  34 your lordship to the document at tab 14 which  35 puports to be a record of the third annual  36 convention of the Gitksan Carrier Tribal Council of  37 November 5, 6 and 7, 1980.  I made reference to this  38 document, particularily with respect to a resolution  39 numbered 5 that I asked Mr. Williams about in  40 cross-examination.  And my recollection is that he  41 did not have a specific recollection of that  42 resolution, that's why I didn't seek to have the  43 document marked.  But again because there was some  44 reference to it in the evidence, Madam Registrar and  45 I collectively had some concern about whether it  46 should be taken out of the book without your  47 lordship's blessing.  So I bring those two documents 6941  THE COURT:  MR. GRANT:  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24 THE  2 5 MR.  26  27  2 8 THE  29  3 0 MR.  31  32  33 THE  34 MR.  35  36  37  38  39 THE  4 0 MR.  41 THE  42 MR.  43  44  45  46  47  COURT:  PLANT:  COURT:  PLANT:  COURT:  PLANT:  COURT  PLANT  COURT  GRANT  to your lordship's attention.  As I say, I would be  happy to have them both removed.  They are not  exhibits, but I am in your lordship's hands on that.  Well, are counsel agreed on what should be done in  this regard?  I didn't know about this at all until just now about  this concern.  What I had agreed was that --.  Well,  let me speak to this, regarding the June 16, 1986  affidavit it is my position regarding that affidavit  that as it was put to the witness and he identified  it that it should be marked as an exhibit and I had  anticipated that my friend was going to do that and  he didn't.  So the point I was going to request if  he did do that was that it should be put in as an  exhibit together with the exhibits because the  affidavit itself does not make entire sense without  reference to the exhibits.  I would suggest that  that be marked as an exhibit.  With respect to tab  14, I agree with what my friend says is that, in  fact, Mr. Williams could not identify or recall that  resolution, although he was cross-examined on that  convention, and I don't think that should go in as  an exhibit.  There was no identification.  You are in agreement with that, Mr. Plant?  Yes, My Lord.  And perhaps my friend and I could  discuss the affidavit and that should have been done  beforehand.  In this context, I am happy to approve whatever  counsel feels --  Well, then tab 14 should be removed and my friend  and I will come back to your lordship on the  question of tab 5.  Thank you.  My only reluctance to accede to my friend's  suggestion, as I understand it, is that the exhibits  to that affidavit are about an inch to an inch and a  half thick and that may be more paper than your  lordship needs.  All right.  Thank you.  Thank you, My Lord.  Mr. Grant.  Yes, My Lord, I have one housekeeping matter before  proceeding any further and that is that I propose  that the itinerary for the court, the red book that  was used by the court and provided to counsel, it  may be appropriate to have it marked as an exhibit  because it gives some references to where that is. 6942  1  2  3  4  5  6  7 THE  8 MS.  9  10  11  12  13  14 THE  15 MS.  16  17  18  19  20  21 THE  22 MR.  23  24  25  26  27  2  29  30  31  32  33  34  35  36  37 MR.  38  39 THE  4 0 THE  41 THE  42  43  44  45  4 6 MR.  47  Your lordship may wish to refer to it in the course  of connecting some of the evidence with your  viewing.  I don't know what the position of my  friends is.  Of course, the viewing itself wasn't  recorded, but I would propose that the book itself  be marked as an exhibit.  COURT:  Mr. Plant and Ms. Koenigsberg?  KOENIGSBERG:  Obviously I wasn't there, but I did have a  look at the book when Ms. Russell returned.  And my  only comment about it is that she advised me or  instructed me that the flight paths that are in fact  indicated on some of the maps could not and were not  followed.  COURT:  Not precisely, but they are very close.  KOENIGSBERG:  And my assumption is that it, at least in  part, shows intention rather than reality and to  that extent it probably shouldn't be evidence.  Now,  to the extent that it would be of assistance to the  court to have a record of the view that was taken, I  have no objection.  COURT:  Mr. Plant.  PLANT:  Well, I haven't had an opportunity to discuss this  with Mr. Mackenzie who your lordship may recall was  with you.  I think that to the extent that your  lordship considers that the document may be of some  assistance in recalling the view that I don't have  any objection to having it marked.  I think it would be useful to mark it with the  infirmities that have just been mentioned.  It  doesn't show precisely the flight paths, but it is  very, very close in most instances.  And for that  reason, I think it would be useful to have it marked  with the limited purpose that we mentioned.  It  could be the next exhibit.  I have my copy at home,  but mine shouldn't being marked because I made  notes.  GRANT:  I note that mine is clean, but on one of the maps  where the rivers are marked in blue.  COURT:  The next exhibit number will be?  REGISTRAR:  590.  COURT:  We will reserve it for that book of maps and flight  paths.  (EXHIBIT 590 RESERVED)  GRANT:  Now, My Lord, the next point or phase is a proposal  that as a result of discussions that occurred after  THE COURT 6943  1 court on Friday a week ago, June 3rd, with our  2 clients, we have arranged and all counsel have  3 agreed that this week could be dedicated to the  4 viewing of the commission evidence of Mr. Stanley  5 Williams, Chief Gwis Gyen and to that end we have  6 arranged for the monitors and the videos.  It was  7 the plaintiffs' proposal that, of course, not all of  8 the commission of all witnesses be viewed in its  9 entirety, but that this witness and possibly one  10 other witness be viewed in their entirety and there  11 will be excerpts from the others.  I anticipate, My  12 Lord, that this will take a week.  13 The plaintiffs do not wish to interfere with  14 the scheduled commencement of Mr. Sterritt's  15 evidence next Monday, which is agreed to with the  16 defendants and suits Mr. Golie's schedule as well,  17 because we are concerned that we want his evidence  18 completed before the end of the session this year.  19 And to that end, I am prepared to speak to how the  20 scheduling should proceed, but we would like to  21 endeavor to complete the evidence of Mr. Williams  22 this week.  23 And I propose to my friends and they have --  24 we have all exchanged objections, that is it would  25 be maintained that the issue of the objections  26 raised by both defendants and by myself would be  27 dealt with initially with this proviso which Mr.  28 Plant proposed that objections on re-direct be held  29 off until after you have viewed it because it would  30 be hard for you to put in context why the objection  31 was made and we agree with that.  The only  32 difficulty with that, My Lord, is that I am not --  33 in terms of proceeding with the trial and the next  34 witnesses, I am not intending to be here after  35 today.  I would ask that the objections on re-direct  36 that the court hear all of the evidence while other  37 counsel is here.  And I presume that Mr. Plant would  38 like to argue those objections, I certainly would,  39 on re-direct and that that be put off until some  40 time next week, although Your Honour could hear all  41 the evidence and Mr. Plant could note the  42 objections.  The facility of having all the other  43 objections dealt with is so we avoid any  44 interruptions.  We are also prepared to -- the  45 plaintiffs are prepared to accede to the Court's  46 suggestion, although I don't know what exact time  47 table you will consider, of sitting longer court 6944  1  2  THE  COURT  3  4  5  6  7  8  9  10  11  12  13  MR.  GRANT  14  15  THE  COURT  16  17  18  19  MR.  GRANT  20  THE  COURT  21  22  MR.  GRANT  23  24  25  THE  COURT  26  27  28  29  30  31  32  33  34  MR.  GRANT  35  36  37  THE  COURT  38  39  MR.  GRANT  40  THE  COURT  41  42  MR.  GRANT  43  44  THE  COURT  45  MR.  PLANT  46  THE  COURT  47  hours.  Well, I was all for that, but I wasn't given any  notice of that.  I regret to say that this is a bad  week for longer hours because of other commitments I  now have.  I made a list of them, but I left it  conveniently on my desk.  I have a pre-trial  conference arranged already for this afternoon at 4  o'clock and another one for tomorrow morning at  8:30.  I would have had to stand the trial down for  Wednesday morning mainly because it is the Vancouver  Foundation and unfortunately I have to be at this  particular meeting.  There would not be -- there would be no sitting on  Wednesday morning?  On Wednesday morning, I'm afraid not.  I think  Thursday is okay except for an 8:30 appointment.  I  could cancel that.  We have Mr. Justice Hollinrake's  ceremony at 9:30 on Friday morning.  Yes.  I have engagements already scheduled for tomorrow  evening.  Well, I can appreciate the problem and what happened  is this came out of further discussions on Friday to  resolve the conflict.  I was hoping that it would be a week where I could  try and clear my schedule as much as I can, but this  is a particularily bad week.  I would think that we  could -- well, unfortunately I have left that piece  of paper behind.  Madam Registrar, would you phone  my office and ask them if there is a fullscap piece  of paper with this week's schedule on it and ask  them to send it right up.  How long do you think it  will take for the objections to be argued?  I have only one objection that I am going to  maintain, but I think most of the objections are Mr.  Plant's on direct.  Is testimony something that will be argued before we  see anything?  That's what was proposed.  Why don't we go ahead with the objection and we can  get the schedule after that.  I would think it would be proper for Mr. Plant to  deal with his objections first.  Yes, all right.  Does your lordship have a copy of the transcript?  No, I don't.  I have it downstairs.  This would be  the transcript of Stanley Williams? 6945  1 MR. PLANT:  Yes, his commission.  2 MR. GRANT:  It has been filed as an exhibit.  3 THE COURT:  I think maybe we will adjourn and I will go get it.  I know where it is.  I will be right back.  THE REGISTRAR:  Court will adjourn.  (PROCEEDINGS ADJOURNED AND RESUMED PURSUANT TO BRIEF RECESS)  9 THE  10 THE  11  12 MR.  13 THE  14  15  16  17  18  19 MR.  20  21 MR.  22  23 THE  24  25  26  27  28  29  30  31  32  33  34  35  36  37  3  39  4 0 MR  THE  41  42  4 3 MR  44  45  46  47  REGISTRAR:  Order in court.  COURT:  Yes, all right.  I have my schedule now, do you want  to talk about that some more?  GRANT:  Sure.  COURT: Well, I have a pre-trial conference at 4:15 this  afternoon. I have no idea how urgent it is, but  counsel are planning their day on that basis. I  should probably not cancel it if I can avoid it.  Tomorrow I don't have a pre-trial conference, I have  a dentist appointment at 8:30.  PLANT:  I don't think I want to sit at all tomorrow morning  then, My Lord.  GRANT:  I am not going to be here, but it is not because of  what has been said, My Lord.  COURT:  There is the Vancouver Bar new judges lunch I have  to go to which I should leave a little early  tomorrow at lunch time.  I have a dinner that I have  to attend tomorrow evening related to the judiciary.  I have a pre-trial conference on Wednesday morning  and I have the Vancouver Foundation at ten.  Thursday is a day I can make free.  I have a meeting  at 8:30.  I can probably dispense with the pleasure  of meeting with the representatives of court  services for what I'm sure will be important  matters, but I can put that off.  Friday, as I said,  we have the ceremony for Mr. Justice Hollinrake.  I  can't do much with today.  We can sit late on  Wednesday afternoon and into the evening if counsel  wish.  MR. GRANT:  Counsel for the plaintiffs are available Wednesday  evening.  PLANT:  Oh, and we are too.  COURT:  I could sit long, long hours on Thursday, but I  can't sit long hours on Friday.  GRANT:  My Lord, what I had worked out with other counsel  for the plaintiffs, and maybe this would only apply  to Thursday as a result of your schedule, but I  propose to start at 9 a.m. and go through to 12:30  with a break and 1:30 to 4:30. 6946  1  THE  COURT  2  MR.  GRANT  3  4  THE  COURT  5  MR.  GRANT  6  7  8  THE  COURT  9  10  MR.  GRANT  11  MR.  PLANT  12  THE  COURT  13  14  MR.  GRANT  15  THE  COURT  16  MR.  GRANT  17  THE  COURT  18  19  20  MR.  GRANT  21  22  THE  COURT  23  24  25  26  MR.  GRANT  27  THE  COURT  28  MR.  PLANT  29  THE  COURT  30  MR.  PLANT  31  32  33  34  THE  COURT  35  MR.  PLANT  36  37  38  39  40  41  42  43  44  45  46  47  On Thursday?  Yes, that would be for any day which you would be  available, but it appears that's Thursday.  Thursday is the only day that I could do that.  So that would be Thursday, and I just would have to  notify counsel.  And then Wednesday evening, as I  say, counsel for the plaintiffs are available then.  All right.  Well, I think we are going to have too  much -- do counsel want to sit this evening?  I am available this evening, My Lord.  I am available this evening.  Well, I have to adjourn at four, but I could come  back at seven and sit until nine, for example.  That's agreeable.  I would be available.  Yes, all right, seven to nine this evening.  Would that be the same on Wednesday?  Yes, we could sit seven to nine on Wednesday as  well.  And do you want to sit Thursday evening as  well?  I think there are some problems in terms of  availability for counsel.  All right.  Regular hours except we will have the  seven to nine sitting tonight and on Wednesday  night.  We will sit the hours described by Mr. Grant  on Thursday and regular hours on Friday.  And no session Wednesday morning?  And no session Wednesday morning.  I have nine objections, My Lord.  All right.  The first two are in volume one.  is at page 9.  I have a two-page  a copy of which was delivered to my colleague Mr.  Rush on Friday.  Thank you.  For the most part, the objections that I am making  this morning are within the scope of your lordship's  earlier reasons on the general reservation with  respect to the reputation exception and so on.  These objections are directed to other subjects.  Page 9 at line 33 Mr. Grant's question is:  "Q  You described to me before this  commission the seating of the people as  you described it now; is that right, the  seating at your table in Gitsegukla?  A  Right."  The first of those  list of objections, 6947  1  2  3  4  5  6  7 THE COURT:  9  10  MR.  PLANT  11  12  13  THE  COURT  14  MR.  PLANT  15  16  17  18  19  20  THE  COURT  21  MR.  PLANT  22  23  24  THE  COURT  25  26  27  28  29  30  MR.  PLANT  31  32  33  34  THE  COURT  35  36  37  38  39  40  MR.  PLANT  41  42  THE  COURT  43  MR.  PLANT  44  THE  COURT  45  MR.  PLANT  46  This follows some questioning about the seating at  the head table in Gitsegukla.  My objection is a  rather narrow one that as I hear this question, or  at least as I read it last week, it appeared to me  that the question is inadmissible as an attempt to  lead a prior consistent statement from the witness.  Well, I'm sorry, I'm not following you, Mr. Plant.  What he is talking about is who sits where at the  feast in Gitsegukla.  That's right.  He has given evidence -- up to line  33, he has given some evidence about that, most of  that or all of it is quite properly adduced.  Yes.  Then there is an attempt, I say, to buttress that by  reference to a conversation that appears to have  taken place between counsel and the witness before  the commission:  "You've talked about this before to  me and what you told me before is what you are  telling me now, right?"  Yes.  It is a pretty narrow objection, My Lord, and it is  not one that really taints the broad brush of the  evidence.  But there is nothing leading in that question at  line 33.  He has reminded the witness that he has  discussed it with him and I'm not sure there is  anything wrong with that.  Maybe there is a  statement between them, but that doesn't show on the  record.  If it is only a reminder, I don't think it is  objectionable.  But if it is an attempt, as I was  afraid it was, to confirm the witness' evidence by  reference --  That might be so if he asked a leading question, but  the question was:  "Now, who sits in front of you at the  feasts in Gitsegukla?"  I am not taking objection to that, it is simply the  one question and the one answer.  Well, I am against it, Mr. Plant.  All right.  Page 13.  Page 13.  Line 2 to 7.  And actually to put this in context, I  should go back to page 12 line 44.  47 694?  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  THE  COURT  18  MR.  PLANT  19  20  THE  COURT  21  MR.  PLANT  22  23  24  25  26  27  28  29  30  31  THE  COURT  32  33  MR.  PLANT  34  THE  COURT  35  MR.  PLANT  36  37  THE  COURT  38  39  40  41  42  MR.  PLANT  43  44  45  THE  COURT  46  47  MR.  GRANT  "MR.  GRANT:  Q   Okay  A  A  Q  A  After this trip with Ambrose  Derrick the and events with the beaver  where he hit you with the beaver tail,  did you go goat hunting with Gordon  Johnson, the present Malii?  I went with Gordon on Sakxum higookx's  territory.  And can you describe where that is in  relation to Gitwingax village?  On the -- I know, he told me.  Oh, he said --  On the front, the gaa lax dil..."  The next three words are G-A-A, space, L-A-X, space,  D-I-L.  With respect, it is not spaced, it is underlined.  Well, the first G is underlined, AA space, L-A-X  underlined, space, D-I-L.  Yes.  ". . .is sort of the front part of a --  across the river from Gitwingax.  And Gitwingax is in the transcript and the court  reporter has a copy of that.  My objection to that  is simply that it is hearsay because the knowledge  is said to come from Gordon Johnson who is a living  person.  What is it he is describing "where that is".  What  is "that"?  I took that to be Sakxum higookx's territory.  Yes.  A place where he went goat hunting with Gordon  Johnson.  All right.  Well, I think that, depending on what  your friend says, I would agree with you if it is  adduced or relied upon for the proof of where Sakxum  higookx's territory is, but are there not other  bases for admissibility that may well apply?  There may well be, and I don't know what my friend's  position is on the basis for the admissibility of  that question.  Is this a private fight between you and Mr. Grant or  does Ms. Koenigsberg --  She has adopted Mr. Plant's objections. 6949  1  MS.  KOENIGS  2  THE  COURT:  3  4  MS.  KOENIGS  5  6  THE  COURT:  7  8  MR.  GRANT:  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  THE  COURT:  24  25  26  27  28  29  MR.  GRANT:  30  31  THE  COURT:  32  MR.  GRANT:  33  34  35  THE  COURT:  36  37  38  39  MR.  GRANT:  40  THE  COURT:  41  42  43  44  45  46  47  BERG:  There are some questions that we object to.  Let me know if you want to be heard in this private  fight.  BERG:  I don't consider it a private fight.  I have  reviewed the material.  Mr. Grant, you don't suggest that is admissible to  prove the boundaries of Sakxum higookx, do you?  No, it's not.  With respect to that, My Lord, I  think it's a bit unclear as to whether or not when  the witness refers to:  "On the -- I know, he told  me" that he is referring to Gordon Johnson.  It is  not proof of the truth of the territory, but it is  evidence of reputation, that is that that knowledge  of that territory has been passed on and I would say  that it's admissible on that basis.  It is not  necessary for this evidence to prove the boundaries,  and I would ask that it be admitted.  It is evidence  from Gordon Johnson and other evidence indicates he  is Malii.  And it is another head chief and he knows  that boundary.  He describes something which is  consistent with what the other evidence is and it  is, as I say, not evidence of the boundary itself.  Well, I have a problem with that, Mr. Grant, and we  had better take it by the throat.  I wouldn't have  thought that you could prove reputation in the mind  of Gordon Johnson by his otherwise inadmissible  statement to Mr. Williams.  It would be  self-serving, would it not?  Well, Mr. Johnson, the state of his mind of what he  knows --  Mr. Johnson is a living person, is he not?  Yes, and that's where I am having the trouble with  it because I read it a bit differently than my  friend.  I read it based on --  I have to assume that "he" in the answer on line  five refers to Gordon Johnson who is the last person  named.  It may have been Ambrose Derrick.  Is  Ambrose Derrick deceased?  Yes.  Well, he may have meant Ambrose Derrick, but I have  to apply the ordinary rules that he is referring to  the last person named unless it indicates otherwise,  and it doesn't.  So in other words, what you are  saying is Gordon Johnson's reputation or his  knowledge of reputation is entitled to be proven by  his self-serving statements to Stanley Williams and  I am against you on that. 6950  1  MR.  GRANT  2  3  THE  COURT  4  MR.  GRANT  5  THE  COURT  6  7  MR.  GRANT  8  9  10  11  THE  COURT  12  13  14  MR.  GRANT  15  16  17  18  19  20  21  22  23  THE  COURT  24  25  26  27  28  29  30  31  32  33  34  35  36  37  MR.  GRANT  38  39  40  41  THE  COURT  42  43  44  45  46  MR.  GRANT  47  THE  COURT  No, Gordon Johnson is another head chief.  He is not  Sakxum higookx.  Oh, all right.  So all that is the evidence that --  Well, it doesn't matter whether it is self-serving  or not, it is just hearsay, isn't it?  Well, it is hearsay to prove the truth of the facts  stated herein, it is not there to prove the state of  mind of Gordon Johnson.  All that it goes in for is  to show his state of mind, that is his belief.  You think it is competent to prove the state of mind  of a person by out-of-court statements he makes  about someone else's territory?  Well, all that is evidence of is his belief, that's  all it is, which I would submit is as much a fact as  anything else, the belief of that person.  And the  reason I don't press it is that I don't think it --  it doesn't carry much weight except for the state of  mind of Gordon Johnson, that's all it shows.  And it  is not proof of the boundaries, I agree with my  friend.  It can't be for the proof of the truth of  the matter stated therein.  Those are --  Well, I would have thought that if the state of mind  of Mr. Gordon Johnson was relevant you would have to  call Mr. Gordon Johnson.  You can't prove his state  of mind by hearsay evidence.  You can prove the  state of mind of the witness by what people told  him.  If the state of mind of the witness is  relevant, then you can prove his state of mind by  what other people tell him.  There is no other --  sometimes there is no other way to get into that  state of mind, but I wouldn't have thought -- I must  confess that I have never given detailed  consideration of this, but I wouldn't think that you  could prove the state of mind of a non-witness by  statements that person makes, the non-witness makes.  Well, of course what is important in this evidence  is the state of mind of Mr. Williams who testifies  to this territory and the boundary of this  territory.  Well, by an exception to the hearsay rule I have  held that his state of mind can be proven or  reputation can be proven by the statements that  deceased persons have made to him, but not  statements made to him by living persons.  Right.  And Gordon Johnson is a living person. 6951  1  MR.  GRANT  2  3  4  5  THE  COURT  6  MR.  GRANT  7  8  THE  COURT  9  10  11  12  13  14  MR.  PLANT  15  THE  COURT  16  MR.  GRANT  17  18  THE  COURT  19  20  21  22  23  24  25  26  27  MR.  PLANT  28  29  THE  COURT  30  31  32  33  MR.  GRANT  34  THE  COURT  35  MR.  GRANT  36  37  THE  COURT  38  39  40  41  42  43  44  45  MR.  PLANT  46  THE  COURT  47  MR.  PLANT  Well, the affidavit which is Exhibit 11 in his  commission evidence of course relies on the  statements by deceased persons with respect to this  territory.  Right.  And that's why I say it is not necessary for this  evidence to prove the territory.  Well, I don't think so, Mr. Grant.  I have the view  that that -- just that question and answer, I  suppose, is inadmissible because you are going back  to his evidence -- oh, no, you are still going on to  talk about the territories.  You have left the  subject of sitting at the feast table.  Well, I —  What is a gaa lax dil again?  It is a place on the face of a mountain across the  Skeena River from the Village of Gitwingax.  I don't think that Gordon Johnson's state of mind is  relevant at this point.  If it becomes relevant, I  don't think it can be proven by statements he  himself makes out of court except the statements he  makes to the witness.  I'm sorry, except the  statements that are made to him, not by a witness.  But let me ask you, assuming that finally I say this  is not admissible, will it be edited out?  How will  you mechanically do that?  I think I am content with the negotiation that your  lordship can disabuse himself.  Yes, all right.  Well, I think that I am going to  hear it, it is here.  I am going to read it again,  but I think that as presently advised I will be  deciding that that is inadmissible.  I just want to be clear as to what --  Do you want me to state it again?  I understand your statement, I want to be sure as to  what is excluded.  I mean I think that --  Well, when you said:  "Q   And did you kill any goats in that  territory on that trip?  A  We got seven."  That is obviously personal knowledge so it is only  from lines two to five, isn't it?  No, two to seven.  Two to seven was the extent of my objection.  Yes.  And my objection is directed to the admissibility of 6952  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 evidence or the evidence being tendered as being  evidence of the location.  THE COURT:  Yes, all right.  It is out for that purpose.  MR. PLANT:  I next would turn to volume 2.  Now, page 79, line  31.  I should put this in context by saying that at  the opening of proceedings on the morning of April  13th my friend provided me with five, maybe six maps  which were said to have been prepared by Neil  Sterritt on Mr. Williams' instructions prior to  proceedings that morning.  And my concern with the  evidence at line 31 to 34 and line 43 to 46 is  really, as much as anything, desired to red flag  problems which proliferate through volume 2 and some  of volume 3 of the transcript where the evidence may  not be inadmissible, but because of the way that it  was led it may at the end of the day have no weight.  And I think your lordship may derive some assistance  by just having a brief look at the problem.  At line  31 Mr. Grant asks in reference to a map which has  been prepared and is identified by letter "T",  letter "T" in this case referring to a portion of  the Stanley Williams territorial affidavit which  describes the territory.  And Mr. Williams has  identified the map and then Mr. Grant asks this  question.  "Q  Now, referring you to Exhibit 4, letter  "T", the line there appears to start at  Xsan, upstream of Doreen.  Is that  where the boundary of this territory  commences?"  And my concern with that is it is a form of weeding  that reduces the weight of the evidence to virtually  nothing.  And perhaps an example of the problems  that that form of weeding leads to, if I could put  it that way, is that at line 43 of the same page  where Mr. Grant asks.  "Q  Do you know a creek named Winna Wedda?  A  It is about eight miles from -- coming  from the Skeena River.  Q  And is this a junction of creeks?  A  Yes."  When you are weeding as this evidence is being led,  a lot depends on the accuracy of the question being 6953  1  2  3  4  5  6  7  8  9  10  11 MR. GRANT:  12 MR. PLANT:  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 THE COURT:  43  44  45  46  4 7 MR. PLANT:  put by the questioner.  And here we have, as I see  it, two inconsistent suggestions being made to the  witness.  First, that there is creeks named Winna  Wedda and, second, that this place Winna Wedda is a  junction of creeks.  I am not asking your lordship  to make any ruling with respect to this, but merely  to take note of our concern now.  And perhaps just  to do that with reference to one other series of  questions, I could ask your lordship to turn to  volume 3, page 141.  Now, there at line 9 --  What page?  On page 141 of volume 3.  Mr. Grant has been asking  Mr. Williams about trips made to certain territories  with Neil Sterritt.  And the question is:  u showed him all of the other  ries except you did not take  - all of the other boundaries  bed in your affidavit and all of  undaries described in Exhibit 4  for the following:  You did not  eil Sterritt to Xsansisnak, did  just told him where the location  u described those boundaries to  thout taking him there?  told him.  u didn't take him to Wii Tax, did  didn't take him there.  u described those boundaries to  And so on.  And in that context the examination  takes the flavour of the cross-examination or an  examination for discovery rather than an examination  in chief.  And as I say, I only do that for the  purpose of drawing your lordship's attention to this  evidence.  I do have an objection --  Well, Mr. Plant, if we ruled inadmissible the answer  to every leading question I was going to say we  would never get through this case.  But the penalty  or the sanction for leading isn't usually anything  more than a matter of weight, is it?  Is usually more than a matter of weight?  'Q  And yc  bounda  Neil -  descri!  the be  except  take N.  you?  A  No.  I  is .  Q  And yc  him wi  A  Yes, I  Q  And yc  you?  A  No, I .  Q  But yc  him?  A  Yes. " 6954  1 THE COURT  2  MR.  PLANT  3  THE  COURT  4  5  6  7  8  9  10  11  12  MR.  PLANT  13  14  THE  COURT  15  MR.  PLANT  16  17  18  19  20  21  THE  COURT  22  23  24  25  26  27  MR.  PLANT  28  29  30  THE  COURT  31  MR.  PLANT  32  THE  COURT  33  34  35  MR.  PLANT  36  37  38  THE  COURT  39  40  41  MR.  PLANT  42  MR.  GRANT  43  44  THE  COURT  45  MR.  GRANT  46  47  It isn't usually more than a matter of weight.  And I am not suggesting that it is, My Lord.  I am not sure that these are all leading questions.  Back on page 79 when the witness was asked:  "Q  Do you know a creek called Winna Wedda?"  Surely that's no more than directing the attention  of the witness to a particular subject matter.  What  should the question be:  Do you know the name of a  creek which I can't tell you?  No, I don't object to the question:  "Do you know a  creek named Winna Wedda."  No.  I have a concern with the next question:  "And is  this a junction of creeks."  I read that as being,  and maybe I'm wrong, Do you know of a street called  41st Avenue?  Oh, yes, I know of that street.  And  then the next question is, Is that an intersection  of 41st and Granville?  Oh, yes, it's that.  That may be so, but he didn't name the other creeks,  he said:  "And is that a junciton of creeks?"  If  you know about the Skeena, you know about the  Bulkley.  And if you ask both questions:  "Is there  a junction?"  And then answer:  "Yes, there is a  junction."  Well, as I understand Mr. Williams' evidence as a  whole, Winna Wedda is a name for a junction, it is  not a name for a creek.  There is no creek.  There is no creek named Winna Wedda?  No.  Well, then it is an artistically phrased question,  but it is not the worst thing I have heard in this  trial.  Well, I am only drawing this to your attention  which, in my submission, may bring argument at the  end of the day.  I think it is a matter of weight that has to be  determined at some point, but I am not ruling it  inadmissible.  Nor am I asking you to do that.  I would like to make a comment at this point on  that, My Lord.  Do you have to, Mr. Grant?  Well, I am just worried about the weight that my  friend has raised and that is that generally when  the question is about leading is that counsel for 6955  1  2  3  4  5  6  7  8  9 MR.  10  11 MR.  12  13  14  15  16  17  18  19  20  21  22 THE  23  2 4 MR.  25  26  27  28  29  30  31  32  33  34  35  36  37 THE  38  39  40  41  42  43  44  45  4 6 MR.  47 THE  the defendants -- and this has been a matter of  courtesy, counsel for the defendants have said:  Please don't lead in this area and we've backed off.  But what happened here, My Lord, is that 25 maps  were produced and it was introduced on page 78 that  Mr. Sterritt drew these lines on the instructions of  the witness and then there was leading to try to get  to the point.  PLANT:  Actually only six maps.  The balance of the maps  weren't produced until later.  GRANT:  Yes, they were produced during the commission, but  the Exhibit 4 for identification had all the maps in  it.  In any event, My Lord, all I am saying is that  I am worried that -- I am very concerned that now if  we get into an argument about weight when the whole  practice has been during commissions is that once  counsel says:  Look, please don't lead on this, and  then we back off.  And now they say:  Yes, but you  led there.  We didn't raise anything about it at  that time and now we are going to challenge the  weight, that's my concern.  COURT:  What are you saying, Mr. Plant, about the practice  that your friend has made a comment on?  PLANT:  Well, I have objected to leading evidence from time  to time where it was in an area where I did have  some particular concern that I could cope with right  at the moment that was apparent to me.  I have  not -- I guess it is fair to say that the practice  that we have followed is to let my friend, generally  speaking, lead the evidence the way he wants to lead  it, and only in areas of particular sensitivity have  we asked not to lead.  And that's the practice that  we have followed and, as much as anything, out of a  desire not to interrupt the flow of evidence,  particularily when we don't have a judge there to  police the proceedings.  COURT:  Mr. Grant, I think that I can take into account you  say that the practice was to respond responsibly to  the request not to lead, but I don't think it is a  matter of law.  I can look at a leading question and  say:  I am not going to take into account the fact  that it is a leading question.  I might not make  much of a deduction for weight, if I can put it that  way, where there is no objection.  But if it is a  leading question, it is a leading question.  GRANT:  I think you have answered my concern, My Lord.  COURT:  All right. 6956  1  MR.  PLANT  2  3  THE  COURT  4  MR.  PLANT  5  THE  COURT  6  MR.  PLANT  7  8  9  THE  COURT  10  MR.  PLANT  11  12  13  14  15  MR.  GRANT  16  17  THE  COURT  18  MR.  GRANT  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  THE  COURT  36  MR.  GRANT  37  38  THE  COURT  39  MR.  GRANT  40  THE  COURT  41  MR.  GRANT  42  THE  COURT  43  44  45  46  47  Now, the next note I have of the objection is at  page 14 or page 80.  Of?  Of volume two.  Yes.  However, I don't wish to pursue that now, My Lord,  that is under the same category of the matters that  we have already discussed.  All right.  And I just go to page 84, line 20.  Oh, yes, at that  point the witness Mr. Williams was giving evidence  about the fortress near Gitwingax which has a name  in Gitksan which Mr. Williams uses at line 29 of the  preceding page "T'a'ootsip".  My Lord, I may be able to anticipate my friend on  this point.  There is clearly hearsay here involved.  Yes.  I think that what really you can take out of this  because my friend refers to it in his memo of page  86, line two to six which should be looked at in  conjunction with it and which is:  "Q  Okay.  How do you -- how did you learn  of the finding of the jaw-bone?  A  Russell showed me.  Q  Did he -- he showed you the jaw-bone?  A  Yes."  I think all we can take out of this in terms of it  is admissible out of that paragraph is the -- just I  believe my friend is referring to the paragraph  starting:  "About ten years ago Russell Dutton..."  Yes.  Is that there was a jawbone.  And the witness saw  the jawbone and there was a jawbone.  He didn't see the jawbone on page 84.  He saw the jawbone on page 84.  He didn't say so.  He didn't see Russell Dutton dig it up.  The passage on page 84 has to stand on its own and  it is clearly inadmissible.  If the witness later on  says:  "I saw a jawbone", then that becomes  admissible, but I don't think this passage can be  used to explain what he later saw.  Because he saw  it, he can't then say:  I saw it and therefore I can 6957  1  2  3  4  5  6  7 THE COURT:  MR. GRANT  THE COURT  MR. GRANT  9  10  11 MR.  12  13  14  15  16  17  18 THE  19 MR.  20  21  22  2 3 MR.  24 THE  2 5 MR.  26  27  28  29  30  31  32  33  34  35  36  37  38 THE  3 9 MR.  40  41  42  43  44  45  46  47  PLANT:  COURT:  GRANT:  PLANT  COURT  PLANT  COURT:  PLANT:  now say in evidence that Russell Dutton found it.  No, I agreed.  He washed it off and gave it to an anthropologist.  No, all he can say is:  I saw a jawbone. I am just  anticipating my friend.  I am not going to argue  that.  That paragraph on page 84 starting "About ten years  ago", that is inadmissible and it will be not  treated as evidence.  If I could strike it from the  record I would do so.  That concludes the objections I have for volume two,  My Lord, and there are a few in volume 3.  Well, my  note, and perhaps I should do this now is I have a  note here that there is an apparent transcript error  and this would be in volume 1, page 34, line 25.  I  don't have the benefit of my friend's comments on  this .  Page 34?  My Lord, I noticed it and I think my friend is  correct, but I would like us to wait until the time  of the video because I haven't had a chance to  compare the transcript with the video.  And nor have I, so I will reserve that.  Okay.  And now moving ahead to page 186 of volume 3, line  35.  "Q  I'm going to show you -- I'm going to  have the interpreter read to you page 5  of a transcription of the video tape  which I understand is a translation --  which I've been instructed is a  translation of what you said."  I will stop there.  This is a transcript of the  Hanamuxw pole raising feast.  Your lordship saw the  video a year ago.  Yes.  And a transcript was marked at that time as Exhibit  30A For Identification.  My information from looking  at the transcript of the examination of the  plaintiffs' witness Solomon Marsden is that that  transcript was tendered again through Mr. Marsden  because Mr. Marsden was one of the speakers at the  feast that was the subject of the video tape -- at  the ceremony which is the subject of the video tape.  And what happens between the bottom of page 186 and 6958  1 the top of page 188 is that the words that Stanley  2 Williams is said to have spoken at this ceremony are  3 then put to him in a form of a translation of the  4 transcript and he is asked to confirm those  5 statements.  And now I think what happened when that  6 was done for Mr. Marsden was there was some  7 discussion about what that could be admissible for.  8 My submission is that it is not admissible for much,  9 but I think it was marked as evidence of the fact  10 that the words were said.  11 THE COURT:  Yes.  12 MR. PLANT:  And I make that note now in respect of this evidence  13 which pertains to that part of the transcript which  14 reproduces what Stanley Williams said at this  15 ceremony.  16 MR. GRANT:  Well, I say that it goes further than that, My Lord.  17 This was the first cut ceremony.  It wasn't a pole  18 raising feast, it was a first cut ceremony.  First  19 of all, Mr. Williams agrees on page 188, line 10,  20 after the transcript is read to him that he did say  21 those words, so that goes to the fact that they were  22 said which my friend agrees.  The other is that he  23 agrees that those statements are true.  In other  24 words, he adopts and confirms what he said there as  25 being correct.  And in the context of the ceremony,  26 I say that that is important and it is relevant.  27 What he has said -- of course, it is all open for  28 cross-examination as to what he said, but he said, I  29 said those words and those words are true so he  30 affirms them.  And this goes to the next objection  31 which my friend has which is related to the same  32 material which is the statement of Lelt, Fred  33 Johnson, made at the same time as the transcription  34 Exhibit 30A.  And in that context Mr. Williams  35 adopts Mr. Johnson's statements.  He adopts them and  36 he says, I heard him say those and those statements  37 are true.  They are correct statements of our laws.  38 And I would submit that they are admissible, both of  39 them, for that reason.  40 MR. PLANT:  I haven't addressed your lordship on the second  41 point of my friend.  42 THE COURT:  Yes.  Well, on the first part I am not going to  43 disturb the evidence as it appears in the  44 transcript.  I think it is admissible for the same  45 reason that I held Mr. Marsden's evidence  46 admissible.  It confirms to the extent that  47 confirmation is necessary.  He said those words on 6959  MR. PLANT:  THE COURT  MR. PLANT  THE COURT  8 MR. PLANT  9  10  11  12 THE COURT:  13  14  15  16  17  18  19  20  21  22  23  24  25  26  2 7 MR. GRANT:  28  29  30  31  32  33  34  35 THE  3 6 MR.  37  38  39  40  41  42  43  44  45  46  47  COURT:  GRANT:  that occasion, but that's, I think, as far as it  goes .  The next point then is whether Mr. Williams as  someone who attended this feast --  Yes.  -- can confirm statements made by --  Ceremony.  I'm sorry, ceremony, yes.  Statements made by Fred  Johnson who is chief Lelt, an old man, but  nonetheless for what it's worth, as I understand it,  still living.  Well, we have a problem there and it is simply this,  I don't think that it is competent for the witness  to say Fred Johnson said, The Gitksan law is X, Y,  Z, and he's right, that is authenticating someone  else's testimony or someone else's out-of-court  statements.  I think he can say that I believe  Gitksan law is X, Y, Z.  But if he says, I think  that's Gitksan law because Fred Johnson told me so,  then I think it is inadmissible.  If he says, I have  always understood that to be Gitksan law and because  my elder who is now deceased told me that that was  the reputation in our community, then it is  admissible.  But it doesn't become admissible  because Fred Johnson told him so.  Now, have I ruled  against you, Mr. Grant?  Well, I think if you look at page 191 at the very  top you will see exactly the words that are said.  This is after the transcription is read.  "Q  Do you remember Lelt saying those words  and then singing the song?"  That's the question  Yes.  -- after it is read.  The answer is :  "A  Everything that Lelt said about our  laws are always true, and this is the  reason why we -- why we were present  there, and he was present there when  the -- when they first cut the pole,  and this is the loss of our  grandfathers."  So basically the witness was asked if he remembered  those words and then he adopted on his own.  Without 6960  1  2  3  4  THE  COURT  5  MR.  GRANT  6  THE  COURT  7  MR.  GRANT  8  THE  COURT  9  10  MR.  GRANT  11  12  13  14  15  16  17  18  19  20  THE  COURT  21  22  23  24  MR.  GRANT  25  THE  COURT  26  27  28  29  MR.  GRANT  30  THE  COURT  31  32  33  34  35  36  37  38  39  40  MR.  GRANT  41  42  43  44  45  46  THE  COURT  47  MR.  GRANT  being asked, Do you agree with those statements? he  adopts in his own answer that everything he said  about our laws are always true.  "Loss" there should be "laws", shouldn't it?  Yes, L-A-W-S, that's in line 6?  Yes.  On page 191 for the record.  I don't think he can prove Gitksan law by repeating  what someone else said out of court.  No.  All he is saying is he is one of three chiefs  participating in this ceremony.  Lelt says certain  things.  He says, everything that he says are always  true.  What he is saying is -- the witness at that  point, My Lord, is adopting and saying as his own  that that's true.  It is not a question then of  whether or not he is saying -- he doesn't say it is  true because Lelt said it, he just said it is true,  that's right.  And he adopts this statement as his  own.  I think if a ceremony is relevant he can say what is  said at the ceremony, that is direct evidence.  I  saw the two cars proceeding toward the intersection.  I saw them come together.  But he can also explain why certain things happened.  That is direct evidence.  I think he can say what  happened at the cermony if he knows from experience  or otherwise that this is the way ceremonies are  conducted and he can say why they do these things.  And that's what he says there.  But I don't think he can authenticate Gitksan laws  by a general statement that everything that Lelt  says about our laws are always true without  explaining the basis for his belief.  I don't know  if he is saying there everything Lelt said about our  laws are always true because he thinks that Lelt is  an honest man or whether he is saying, I have heard  these same things from our elders and this is a  reputation from our community and what Lelt said is  confirmed with that reputation.  Well, I should put in context, My Lord, the point of  this evidence was what you had seen and it was like  you had your ears closed.  You had heard the first  ceremony and you saw the video.  There was a  translation made of it which was Exhibit 30A For  Identification.  Yes.  And I submitted that it was important that you know 6961  1 what was said at that and since it was all in  2 Gitksan it should be in English.  3 THE COURT:  And I ruled that I should not — I was  4 misunderstand, obviously, but I said I was not going  5 to be like the monkey that saw nothing.  I was going  6 to hear what was said and this is just a repetition  7 of that and I think that this is admissible.  But I  8 could not think that is admissible to prove that  9 these are Gitksan laws just on the basis of that  10 narrow passage.  There may be all kinds of other  11 evidence that will direct my attention to prove it  12 in other ways, but I don't think one can say that  13 Fred Lelt, a living person, told me that such is  14 such and such and of course that is true.  15 MR. GRANT:  And that is not what the witness is saying.  And the  16 point is that that answer, although not as clear as  17 it could be, is what I emphasize is this is the  18 reason why, why we were present there.  And that's  19 what I am saying is the witness is explaining why  20 Lelt was there.  And he was present there when they  21 first cut the pole and this is the laws of our  22 grandfather and that's why I asked that that  23 question be allowed -- that answer be allowed in  24 because he explains why Lelt was there.  25 THE COURT:  Well, the note I am making beside that passage on  26 the first answer on page 191 is it is admissible as  27 proof of what happened at the ceremony, but not as  28 authenticating Gitksan laws, and I think that's what  29 it has to be.  30 MR. GRANT:  And as proof of why certain things happen at the  31 ceremony?  32 THE COURT:  Well, this statement doesn't say why they were doing  33 things.  It may be elsewhere, but from the narrow  34 statement that passage doesn't explain why things  35 are done.  I think somebody else has explained that.  3 6 MR. GRANT:  Yes.  37 THE COURT:  I think someone else explained why these things were  38 being done.  3 9 MR. GRANT:  Yes.  40 THE COURT:  All right.  I have got to take a short adjournment,  41 please.  42  43  44  45  46  47 6962  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 REGISTRAR:  Order in court.  Court will recess.  (PROCEEDINGS ADJOURNED AND RESUMED PURSUANT TO MORNING RECESS)  I hereby certify the foregoing to  be a true and accurate transcript  of the proceedings herein  transcribed to the best of my  skill and ability.  LISA FRANKO, OFFICIAL REPORTER  UNITED REPORTING SERVICE LTD.  THE  THE  MR.  THE  MR.  (PROCEEDINGS RESUMED PURSUANT TO A SHORT ADJOURNMENT)  REGISTRAR:  Order in court.  COURT:  PLANT:  COURT:  PLANT:  THE  MR.  COURT:  PLANT:  Mr. Plant.  My lord, at page 198 of Volume 3 -- actually, 199,  line 5, I make an objection on the transcript, which  I now withdraw.  All right.  The objection was made because the evidence  concerned events of extremely recent occurrence, and  I've made objections to that kind of evidence  before.  As it happens, I like the witness' answer  on this occasion, so I'm not going to pursue my  obj ection.  At page 200 -- from page 200 to page 204 there is  an exchange arising from Mr. Grant's proposal to  examine the witness on what is now paragraph 39B of  our statement of defence.  That's the -- the  acquiescence laches pleading.  And the particular  question --  That amendment had been made at this time.  It had not been made.  It was at that point  proposed.  In fact, the sequence of events is clear  from Mr. Grant's comments or introduction, if you  will, beginning at line 29 on page 200 where he says  the document is a proposed change to the defence 6963  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 THE  3 6 MR.  37 THE  38  3 9 MS.  40  41 THE  42  43  4 4 MS.  45  46  47 THE  which had been delivered to him on Monday morning of  that week.  He then has the proposed pleading read  and translated to the witness, and at page 202 line  17 asks this question:  "Now, I would like you to comment on what  why the hereditary chiefs, the plaintiffs  and particularly yourself have been  involved, if you have, in getting licences  or grants, licences from the province and  on -- comment on what the provincial  defendant is saying here, if that's true  as far as you know."  And then I object.  I don't think your lordship has to  refer to that.  After we sort out that problem, Mr.  Grant re-asks his question at the bottom of page 202  line 47:  "So can you comment on -- do you agree with  what the province says here, that you and  your grandfather -- that the other Gitksan  chiefs have agreed or consented to the  jurisdiction of the province over your  territories for receiving public monies  and receiving licences?"  The substance of my objection is what I say from line  6 to line 18 on page 203, which really is that this  is a question of law as it has been framed for the  witness.  COURT:  All right.  PLANT:  That's my objection.  COURT:  Were you about to rise to your feet, Miss  Koenigsberg?  KOENIGSBERG:  I'm sorry, my lord.  I was actually looking at  something else.  All of my --  COURT:  I thought you were in furtive conversation with Mr.  Frey, possibly about adding something about what Mr.  Plant said.  KOENIGSBERG:  I was actually trying to anticipate a problem  that Mr. Grant may have on one of my objections, or  one of his objections.  COURT:  I don't need to hear you, Mr. Grant.  I'm not going 6964  1 to rule this evidence out on the basis that it might  2 be a question of law.  I have in mind some recent  3 authorities that suggest that waiver which is  4 usually considered to be a matter of law must be a  5 knowing, deliberate, conscious step or decision.  6 Madam Justice McLachlin dealt with this, I think,  7 when she was a trial judge, and I followed her  8 recently in a case involving whether there's been a  9 waiver of solicitor and client privilege by the  10 accidental or incautious document which might have  11 been privileged and whether that amounted to a  12 waiver, and it may be that there's a subjective  13 element to acquiescence.  I'm not sure whether there  14 is or not.  That's a matter of law that has to be  15 argued in due course and I don't think I would rule  16 out the subjective views of what the witness says.  17 I don't think it's competent for the witness to just  18 sort of comment generally in the pleadings as the  19 question rather invited the witness to do, but  20 that's a matter of form that I would not use as a  21 ground for ruling the answer inadmissible.  I think  22 your objection may have some substance, Mr. Plant,  23 but I think it's one that I would reserve on  24 regardless of what Mr. Grant says at this time, and  25 I think I should deal with it when we come to deal  26 with the -- with the argument at the end of the case  27 when we know precisely what it is he said to  28 acquiesce and what it is he said to constitute  29 acquiescence, and I'm not going to refuse to hear or  30 admit evidence what the witness subsequently and  31 subjectively now says about it.  I think those are  32 matters that we ought to deal with at the end of the  33 day.  34 MR. PLANT:  Very good, my lord.  I was unable to attend for  35 re-examination, but my colleague, Ms. Koenigsberg,  36 was kind enough to pretend -- take my mental  37 approach, and she did object to some questions which  38 Mr. Grant asked on re-examination, and I want to  39 adopt some of those objections, but I -- as I  40 understand it, my friend, Mr. Grant, and Ms.  41 Koenigsberg and I are in agreement at this moment --  42 or at this point that Ms. Koenigsberg is going to  43 search for a day where she would be -- it would be  44 more convenient for her to deal with the objections  45 that she took on re-examination, and subject to your  46 lordship's convenience, we could defer the argument  47 on those questions until some time in the next week 6965  1  2  THE  COURT:  3  4  MR.  GRANT  5  THE  COURT  6  MR.  PLANT  7  THE  COURT  8  MR.  PLANT  9  THE  COURT  10  11  12  MR.  PLANT:  13  MS.  KOENIGS  14  THE  COURT  15  MR.  PLANT  16  THE  COURT  17  MR.  PLANT  18  19  20  21  22  23  24  25  26  27  THE  COURT:  28  MR.  GRANT:  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  if Mr. Grant's agreeable to that,  or two.  All right. I'm  I am as well.  Yes, my lord.  All right.  Those are all the objections I had --  All right.  -- for today, my lord.  All right.  Well, then -- and this other list I  have, objections from the re-examination, that's  what's going to be adjourned to another date?  Yes, my lord.  SBERG:  Yes.  All right.  That's a list which I prepared.  All right.  My friend, Mr. Grant, was kind enough to correspond  with us this morning to give us an indication of  some of the objections that might be made, he might  wish to make to cross-examination.  He doesn't have  any objections now or has withdrawn some of the  objections.  Let me see if I can say it this way.  He has withdrawn all of the objections he made to  the questions that I asked in cross-examination, but  he may have one or two objections with respect to  questions that Ms. Koenigsberg asked.  All right.  Are you ready to proceed, Mr. Grant?  Yes.  I just was chatting with Ms. Koenigsberg  was investigating -- there was one outstanding  objection I had.  This is at Volume 5 page 345  I think that what this objection relates to, my  lord, is the utilization by the Federal Crown of  their own private files, and I say private because  they're not generally discloseable, relating to  estates of deceased Indian people.  Now, Ms. Koenigsberg has indicated to me, and it  may be the case, that the will dealt with here was  actually probated and, of course, the position I've  taken is if the position the Court adopted was if a  will is probated and that's part of the public  record, then that privilege, of course, is attached  to it, and I think that's the only objection I had  and I based it on the fact that Document 1141 of  1987 of the federal defendants is a -- is the file,  the D.I.A. file, estate file of Mrs. Sutton, and I  think that that should probably be stood over  because maybe if it's a probated matter that is a  She  And 6966  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  2 9 THE  3 0 MR.  31  32  33  34  35  36 THE  37 MR.  38  39  40  41  42 THE  4 3 MR.  44  45  46  47  public record, then my objection on that particular  issue, I will not be maintaining it.  Now, that deals with all of the matters except at  page 337.  I had asked -- lines 45 to 47.  This is  whether -- the question was:  "Did you or were you aware that Jim  Lax'nits' left his chief's name to Mrs.  Amos Williams?  Just a minute.  In a will are you referring  to?  Yes.  He left his chief's name in his will to  Mrs. —  Mrs. Amos Williams.  Do you have a document that says that?"  The same objection applies to that, but also I had  requested that I have that document because I was  concerned about the wording that was put to the  witness as to what the document itself says, and  it's in an estate file, and I had requested that  before we come to that evidence, which is some way  down the road, that my friends produce that document  to me and I can check it, and I may -- I reserve the  right to object to that particular question.  The  only other procedural matter --  COURT:  You can interrupt us when we get to it.  GRANT:  Yes.  Or counsel who is here for the plaintiffs.  I  will instruct counsel if I'm not here.  The only  other question was that there was an exhibit -- I  believe it's Exhibit 31, which is the Gitwangak  fishing sites, and Ms. Koenigsberg at page 351  referred to it and --  COURT:  Page 351.  GRANT:  Yes.  The same volume.  And Exhibit 14 for  identification is the Gitwangak fishing sites map,  and what it was was this same map, as I say Exhibit  31 or 32.  It's a map of the Gitwangak fishing  sites.  REGISTRAR:  Exhibit 31.  GRANT:  Exhibit 31.  Thank you.  And she had a copy on which  a marking was made and she was going to produce that  copy for the Court.  So that the same marking could  be made on Exhibit 31 to make sense, because she had  other notations on hers and we didn't want to 6967  THE  MS.  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 THE  38  39 THE  4 0 MR.  41 THE  42  4 3 MR.  44 THE  45  4 6 THE  4 7 MR.  produce it as an exhibit, so I believe she's  probably able to do that at the break or a  convenient time.  Other than that, I think there's  nothing to prevent us from proceeding.  COURT:  All right.  Ms. Koenigsberg?  KOENIGSBERG:  If I could just respond very briefly to my  friend's submissions.  There is no problem with  Exhibit 31 and I think we can probably get a copy of  it over here after the noon hour.  With regard, however, to my friend's objection on  page 337, I received these objections this morning  and this is the first time my friend has requested  production of the document in question.  As I had  said on the transcript at the time, the will I was  making reference to, which I had made the judgment  was not going to be producible to the witness, the  witness would not have seen it, had never seen, I  was sure, was from file 3735 on our list of  documents and was -- that file was -- that document  was listed probably last year sometime.  I do have a  copy of that will for my friend now and it might --  I'll be glad to give it to him, but I wouldn't like  the Court to be left with the idea that I refused to  produce a document or hadn't listed it.  With regard to the -- my friend did not take the  objection with regard to this will at the time of  the commission that it somehow fell within this  category of -- of objections where he is taking  objection to the minister releasing estate files,  and that matter can be dealt with at a later time, I  suppose, but it will be my submission that -- and it  is my submission now that that objection was dealt  with before your lordship in Smithers during the  examination of Gwaans and it was ruled upon at that  time, and we have a very full ruling on -- on what  basis wills are producible.  COURT:  I'm sure you'll remind me of that in due course.  All right.  COURT:  All right.  Are we ready to proceed?  GRANT:  I believe so, my lord.  COURT:  One question.  Were there a lot of exhibits marked  in this commission?  GRANT:  I think there's a total of —  COURT:  I don't really care how many there are.  Do I have  them?  REGISTRAR:  I have them here, my lord.  GRANT:  There are 14. 696?  1 THE  2 THE  3 MR.  4 THE  5 MR.  6  7 MR.  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 THE  44 THE  45 THE  4 6 THE  47  COURT:  Yes.  All right.  Thirteen, actually.  COURT:  All right.  GRANT:  Fourteen is just a copy.  COURT:  Thank you.  GRANT:  And I propose rather than a duplicate copy you refer  to the witness' copy.  PLANT:  Actually, on that subject, in order to avoid an  interruption during the course of the evidence,  perhaps I could refer your lordship now to Volume 3  page 195.  This part of the transcript preceded the  marking for identification as Exhibit 8 of an  undated letter from David Wells to Mathias Wesley  concerning the death of one Walter Wesley, and what  happened here is that Mr. Grant read this letter to  the witness and then asked the witness some  questions about the events  which are referred to in  the letter.  He did not ask the witness to identify  the document.  Mr. Grant then asked that the  document be marked as an exhibit and he asked that  it be marked as an exhibit for identification.  And  at the top of page 197 I said:  "Well, I just want to be sure I understand  the basis on which you say it can be  marked as an exhibit for identification."  Mr. Grant says:  "It's a document to which I've referred the  witness and I just think it's -- when the  judge deals with the transcript, that it  makes sense for him to have reference to  that document."  I agree then and I agree now that that is a practice  which had it been followed throughout the trial to  date might have saved some considerable time  fighting over the marking of documents.  I wanted to  draw your lordship's attention to it.  It was -- it  was marked actually as an exhibit proper when the  exhibits were tendered and perhaps that could be  corrected to an exhibit for identification.  COURT:  Yes.  We'll mark it for identification here.  COURT:  And so it will be —  REGISTRAR:  446A.  COURT:  All right,  way.  That will be fine.  We'll do it that 6969  1  2  3 THE COURT  4  5  6  7  9  10 MR. GRANT  11  12  13 THE COURT  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  (EXHIBIT 446A FOR IDENTIFICATION:  Undated letter from  David Wells to Mathias Wesley)  Thank you.  Now, firstly will there be interruptions  as we go along where counsel wish to make any  observations, objections or interjections?  So the  tape will run continuously and the reporter won't be  expected to take down what's on the tape, of course.  It's already on a transcript.  Is there any reason  for the reporter to remain?  That's why I wished to deal with the objections at  the beginning.  I personally don't think it's  necessary.  All right.  Thank you, Madam Reporter.  I think  we'll excuse you.  If we find we have problems and  we have to have discussions, we will call you back.  Until further notice, you're free for the day.  (REPORTER EXCUSED)  I hereby certify the foregoing to be  a true and accurate transcript of the  proceedings transcribed to the best  of my skill and ability.  Kathie Tanaka, Official Reporter  UNITED REPORTING SERVICE LTD.


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