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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1988-06-03] British Columbia. Supreme Court Jun 3, 1988

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 6900  G. Williams (for plaintiffs)  Cross-exam by Mr. Macaulay  1 June 3, 198 8  2 Vancouver, B.C.  3  4 THE REGISTRAR:  Order in court.  In the Supreme Court of British  5 Columbia, this Friday, June 3, 1988.  Calling  6 Delgamuukw versus Her Majesty the Queen.  7 I caution the witness.  You're still under oath.  8  9 GLENFORD WILLIAMS:  Resumed  10  11 THE COURT:  Mr. Macaulay.  12 CROSS-EXAMINATION BY MR. MACAULAY CONTINUED:  13 Q   Mr. Williams, the people, the chiefs with names in the  14 Kitwancool houses and, for that matter, the Gitwangak  15 houses, those are the people who have agreed to take  16 those names?  They're not compelled to take them, are  17 they?  I'm talking about chiefs names.  18 A   It's -- it's lineage.  It's blood ties.  In some cases  19 they're compelled to take them, because it's carrying  20 on the laws and the traditions of your forefathers.  21 Q   But when you say "lineage", you mean there are certain  22 families that are expected to produce chiefs from  23 among their children?  24 A   Yes.  25 Q   But nobody can be forced to take a name?  No  26 particular person can be forced to take a name?  27 A   Not -- maybe not forced to take a name.  28 Q   And Mr. -- Mr. Bright, for instance, he had -- did he  29 have a name in your house?  30 A   Bob Bright?  31 Q   Bob Bright.  32 A   Yes, he did.  33 Q   He lived in Houston most of his -- most of his life,  34 didn't he?  35 A   From what I understand, yes, he did live in Houston.  36 Q   In fact, he had gone away to the army during the war?  37 A   He may have.  I believe he did, yes.  38 Q   And only returned to Kitwancool, what, for the last  39 couple of years of his life?  40 A   He may have.  I'm not too sure of that.  41 Q   Did you know him well?  42 A   Yes.  I knew him fairly well.  43 Q   Did he have one of the -- the important names in your  44 house?  45 A   Yes, he did.  4 6 Q   And do you know what he did at Houston when he was  47 living there for, as I understand it, 20 years or 6901  G. Williams (for plaintiffs)  Cross-exam by Mr. Macaulay  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  MR.  THE  MR.  MR.  THE  THE  MR.  MR.  A  Q  A  Q  A  Q  A  Q  A  Q  A  Q  A  Q  A  more?  No.  I didn't know what he did.  When you took a name, was that at his funeral feast?  Yes, I did.  You were there?  You were present?  Yes, I was.  Was there a protest made by a member of one of the  Gitwangak houses over the giving of some names -- I'm  not talking about your name -- at that time?  Not that I recall.  You don't remember anybody speaking up about that?  No.  Now, the -- the Westar Mill, there are some head  chiefs, such as Art Mathews Junior, who -- who worked  in the mill?  Yes.  And Art Mathews Junior is the head of a department,  isn't he?  He's the saw filer, but I don't know if he's the head  of that department.  You don't know who the department heads are?  No, I don't.  MACAULAY:  The -- I'm showing you -- it's a band council  resolution, my lord.  That was delivered to my friends  on June 1st, which it's not yet been included in a  list.  COURT:  It was produced what year?  MACAULAY:  Q   This band council resolution is March 14th, 1986.  It  has to do with a subject that was already addressed  earlier in the -- this witness' evidence.  I'm showing you a band council resolution  regarding the successful negotiations with the CNR.  Do you recognize that resolution?  Yes, I do.  And have you signed there -- signed that resolution?  Yes.  That's my signature.  As chief counsellor?  Yes.  MACAULAY:  Could that be marked, my lord?  COURT:  Yes.  REGISTRAR:  Exhibit 589, my lord.  MACAULAY:  And a copy for his lordship.  (EXHIBIT 589:  Band council resolution dated March 14,  1986)  MACAULAY:  Q   As a result of that successful negotiation, the CNR  A  Q  A  Q  A 6902  G. Williams (for plaintiffs)  Cross-exam by Mr. Macaulay  1 assigned the -- to you leases on the -- was it 29  2 acres in question?  3 A   Yes.  4 Q   And the intention is to have that land covered by this  5 resolution returned to the reserve; is that right?  6 A   Yes.  7 Q   And at the moment you're holding it in trust, the land  8 that is, the 29 acres?  9 A   Yes.  We had no other choice but to -- the land  10 couldn't be registered in the band council's name, so  11 that was put into my name, personal name.  12 Q   In trust?  13 A   Yes.  14 Q   And the idea is that as soon as the land registry  15 problems are dealt with, it will become -- it will  16 become band -- Indian reserve property?  17 A   That was our intent, and to revert it back to reserve  18 land so at least we can look at the possibility of  19 generating taxes from the sawmill coming back to the  2 0              band.  21 Q   Well, that was the purpose of the assignment of the  22 leases, wasn't it, so that you would get that revenue?  23 A  A small part of it, yes.  24 Q   Where does the rest of it go?  I mean, there are  25 certain -- there are certain tenants on that land?  26 A   Yes, there is.  27 Q   For instance, the Gitwangak Timber Company Limited is  28 a tenant?  29 A   Yes.  30 Q   And they pay rent?  31 A   Yes.  32 Q   And to whom do they pay it now?  33 A   They pay it in trust to my legal counsel, and that  34 goes back to the band.  35 Q   Yes.  And the CNR -- rather, the Anglican Senate is  36 another tenant, the Anglican Church?  37 A   Yes, there is.  38 Q   Do they pay rent?  39 A  A nominal rent, I believe, yes.  40 Q   And Westar is a tenant?  41 A   Yes.  42 Q   And they pay rent in the same way?  43 A   Yes.  44 Q   And how about Celgar for a log storage site?  Do they  45 pay rent for a log storage site?  46 A   That's the same as Westar and, yes, they do pay rent.  47 Q   And at the moment that's paid into your solicitor's 6903  G. Williams (for plaintiffs)  Cross-exam by Mr. Macaulay  1 account, is it --  2 A   Yes.  3 Q   -- pending the resolution of these land registry  4 problems?  5 A   Yes.  6 Q   Now, are there any band members, that is the Gitwangak  7 band members, who work for the Department of Highways?  8 A   I believe there's one right now.  9 Q   One?  Does that vary?  In other words, are there  10 sometimes more, sometimes less depending on what's  11 going on?  12 A   No.  I think there's only just the one that I'm aware  13 of.  14 Q   I see.  And how about the school district?  Do any  15 band members work for the school district?  16 A   There's one that I know.  17 Q   There -- the school that's established at Gitwangak  18 now, is it staffed by band members?  19 A  A good majority, yes.  You mean in the village itself?  2 0 Q   Right.  21 A   Yes.  A good majority of the band members work there.  22 Q   How many of them work there?  23 A   Six and two non-Indian teachers.  24 Q   Six band members?  25 A   Yes.  26 Q   And are they not employees of the school district?  27 A   No, they're not.  They're employees of the band.  28 Q   Of the band council?  29 A   Yes.  30 Q   You agreed with me that there were at least 15  31 employees of the band council.  Would that include  32 those six?  33 A   Yes, they would.  34 Q   And, in addition, are there social workers who are  35 employees of the band council?  36 A   Yes.  There's a social worker, a band manager, a  37 receptionist, community health worker and a NDAP  38 worker.  39 Q   And those are employees of the band council?  40 A   Yes.  41 Q   Now, when the purification centre, which you mentioned  42 in your evidence, when that opens, that will be in,  43 what, a couple months' time?  44 A   Yes.  45 Q   And how many employees will it have?  46 A   There will be a total of 16 employees at the treatment  47 centre. 6904  G. Williams (for plaintiffs)  Cross-exam by Mr. Macaulay  1 Q   And they will be band members?  2 A   Not all of them.  They're still staffing right now and  3 there's a selection process that's going on.  4 Q   Why would they not be band members?  5 A   Because there's -- there was a training programme that  6 the -- that was held for counsellors, and you require  7 specialty training to work at the treatment centre.  8 MR. MACAULAY:  Yes.  I understand that.  9 THE COURT:  I suppose some will come from other band  10 memberships?  11 THE WITNESS:  Yes.  And the non-Indian community as well.  12 MR. MACAULAY:  13 Q   So you don't know how many band members will be  14 working there?  15 A   No.  There's a selection process.  There's job  16 postings done and people make an application and they  17 interview them.  I don't know how many band members  18 will be working there.  19 Q   Are you -- were you involved in the selection process?  20 A   No, I'm not.  21 Q   Who is doing the selecting?  22 A   There's probably a hiring committee made up of the  23 board of directors.  24 Q   The directors of the band of the --  25 A   Society.  26 MR. GRANT:  My lord, I'm just wondering what the relevance is of  27 a selection process for the treatment centre for  28 hiring employees to the issues in the case.  I'm not  29 suggesting the treatment centre isn't relevant, but  30 now we're getting into the details of how people are  31 hired and who is hired.  32 MR. MACAULAY:  I asked the witness who is hiring them and he  33 answered it's a committee of the tribal council.  I  34 think that follows from my earlier questions.  35 THE COURT:  I think it's sufficiently closely connected, Mr.  36 Grant, to the subject-matter that was introduced in  37 chief that I shouldn't limit cross-examination  38 unnecessarily.  39 MR. MACAULAY:  I'm — I wasn't certain, still not certain, how  40 the purification centre is relevant in this action,  41 but I assume it is and I have to take my -- assume my  42 friend led it for some purpose and I'm just exploring  43 that.  44 THE COURT:  I think the door was open to you in chief and I  45 won't slam it.  4 6 MR. MACAULAY:  47 Q   You -- you're familiar with the Kitwanga Native 6905  G. Williams (for plaintiffs)  Cross-exam by Mr. Macaulay  1 Development Incorporated, KNDI?  2 A   I'm not totally familiar with it.  I've heard about  3 it.  4 Q   Well, it's engaged in some kind of forestry  5 enterprise, isn't it?  6 A   Yes, it has.  And they've since been bankrupt or in  7 receivership and they don't exist anymore.  8 Q   Was that operated by the band council?  9 A   I don't believe so.  It's a separate entity altogether  10 from the band council.  11 Q   So it had a board of directors, a separate board of  12 directors, did it?  13 A   Yes.  It was a totally separate entity from the band  14 council.  15 Q   Were you aware in 1982, particularly November, 1982,  16 the Gitwangak Band Council and the Kitwanga Native  17 Development Incorporated were applying for a forest  18 licence in the Kispiox timber supply area?  19 A   Yes.  I was aware of some of that, yes.  20 Q   Were you involved in those negotiations?  21 A   No, I wasn't.  22 Q   Who on the band council was looking after that, that  23 particular initiative?  24 A   I believe it was Richard Morgan at the time.  25 Q   He was a counsellor then, was he?  26 A   He was the chief counsellor.  27 Q   Oh, I see.  In November, 1982 were you a counsellor at  28 that time on the Gitwangak Band Council?  29 A   I'm not too sure.  I wasn't elected for a two-year  30 period, but I'm not sure whether it was that time.  31 MR. MACAULAY:  Did you take part in a public legal education  32 programme that was sponsored by the Gitksan-Carrier  33 Tribal Council, which was its name at the time?  34 MR. GRANT:  When was this?  35 MR. MACAULAY:  36 Q   November -- well, September up to December, 1982,  37 January, '83?  38 A   I don't recall it, not a public legal education.  I  39 don't recall that.  40 Q   And do you recall, for instance, a programme on wills  41 and estates that was to be held or was held on  42 November, 1982?  43 A   I was aware of a workshop to that effect, yes.  44 Q   You didn't attend?  4 5 A   No, I didn't.  46 Q   Took no part in it?  47 A   No. 6906  G. Williams (for plaintiffs)  Cross-exam by Mr. Macaulay  1 Q   How about a landlord/tenant course in January, '83?  2 A   No.  I didn't take part in that.  3 Q   Or a consumer law course in September, '82?  4 A   No.  I didn't take part in that.  5 Q   You were aware this was going on?  6 A   I wasn't aware of this particular subject, no.  7 Q   Which -- which one were you not aware of?  8 A   This one that you just mentioned.  9 Q   The consumer law course?  10 A   Yes.  11 Q   I see.  Did you have anything to do with a smokehouse  12 feasibility study undertaken by either of the tribal  13 council or the Gitwangak Band Council?  14 A   I wasn't really involved in the -- that's to do with  15 the inland commercial fishery feasibility.  I wasn't  16 totally aware of the details to that, but I was  17 generally aware of what the intent was.  18 Q   That was part of a programme that you -- you and  19 others hoped would lead to an inland commercial  20 fishery pursuant to the fishery bylaw that you gave  21 evidence about?  22 A   Yes.  23 Q   Is -- are you familiar with a -- the  24 Gitksan-Wet'suwet'en Local Services Society?  2 5 A   Yes, I am.  26 Q   Did you play a part in forming that?  27 A   Yes.  28 MR. MACAULAY:  And what was the purpose of that society?  What  29 is the purpose of that society?  30 MR. GRANT:  My lord, with respect, this may move into the area  31 where I -- I deferred on direct, and it -- I believe  32 the evidence will indicate that this is post 1984, and  33 I would ask my friend what the relevance is of the  34 creation of this society after 1984.  It was an area  35 that I had intended to lead but -- as a result of  36 other examinations but deferred given the ruling that  37 you made or the -- the comments made and your  38 tentative ruling about new initiatives.  39 MR. MACAULAY:  I'll be glad to withdraw the question.  If my  40 friend is showing that admirable restraint, I will  41 too —  42 THE COURT:  Thank you.  43 MR. MACAULAY:  — follow his good example.  Those are my  44 questions for this witness.  Thank you.  45 THE COURT:  Thank you.  Mr. Grant.  46 MR. PLANT:  Perhaps I should go first, because there was the  47 matter of some further questions. 6907  G. Williams (for plaintiffs)  Cross-exam by Mr. Plant  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:  Yes.  CROSS-EXAMINATION BY MR. PLANT CONTINUED:  Q   I was about to make reference to one of the documents  which my friend delivered yesterday.  My friend --  it's the package from the Gitwangak Band general  meeting dated April 15, 1987.  And my friend says his  recollection is that's been made an exhibit for  identification, and I have -- if so, I have omitted to  mark it.  THE REGISTRAR:  Exhibit 577 for identification.  MR. PLANT:  Yes.  THE COURT:  It's the package and material for band council  general meeting April 15th, '87.  MR. PLANT  THE COURT  MR. PLANT  THE COURT  MR. PLANT  Q  A  Q  A  Q  A  Q  A  Q  A  Q  A  Q  A  Q  A  Q  Yes.  This was said to be the only package he located.  Yes.  577 for identification.  I ask that a copy of that be placed before the  witness.  Mr. Williams, you have that document before you?  Yes, I do.  And the description that this is a package prepared  for the Gitwangak Band general meeting April 15, 1987  is correct?  Yes.  Is this document typical of such packages that were  prepared for the band general meetings that occurred  while you were chief counsellor of the band?  Yes.  And your evidence was that such meetings were held  three or four times a year while you were chief  counsellor?  Yes.  And you were chief counsellor between 1985 and last  month?  Yes.  As I recall your evidence, there were 90 or so people  in attendance at each of these meetings?  Yes.  And these would be band members, generally speaking?  Yes.  Were copies of these packages prepared for  distribution to people who attended at the meetings?  Yes.  And if they come to the meeting, they'd pick up a  package on their way in so they'd have the material 690?  G. Williams (for plaintiffs)  Cross-exam by Mr. Plant  1 with them when they were following the business at the  2 meeting?  3 A   Yes.  4 Q   The package, which is Exhibit 577, appears to be  5 composed of a number of different documents that --  6 the first document -- the first page, rather, of the  7 exhibit, that's an agenda for the meeting?  8 A   Yes.  9 Q   And then there is -- in this case there is  10 correspondence from B.C. Tel, B.C. Telephone, about  11 cable television?  12 A   Yes.  13 Q   And that would be a letter that would have come to the  14 Gitwangak Band Council?  15 A   Yes.  16 Q   And later on in this package there's a proposal for  17 Gitwangak school expansion?  18 A   Yes.  19 Q   And it was typical of these packages that there would  20 be correspondence that the band had received and are  21 proposals and studies that had been commissioned by  22 the band?  23 A   Yes.  24 Q   And these would be documents that would be kept on  25 file by the band in the ordinary course of its  26 business?  27 A   Yes.  28 Q   And then prior to one of these meetings, you or  2 9 someone in the band would -- having decided what was  30 to be on the agenda, would pull together these  31 documents and those documents which related to the  32 agenda items and then prepare this package or a  33 package similar to it?  34 A   Yes.  35 Q   At these meetings you've described the process of  36 discussion and decision making that would take place?  37 A   Yes.  38 Q   Would some of the matters on the agenda be matters for  39 decision by the general membership of the band?  40 A   Yes.  41 Q   And would there be a secretary present at those  42 meetings to record -- make minutes of the meetings?  43 A   Yes, they would be.  Just make notes of what the  44 decisions would be on specific guidance, yes.  45 Q   So there would be a record made of the decision?  4 6 A   Yeah.  47 Q   And those records would be kept by the band as a 6909  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  G. Williams (for plaintiffs)  Cross-exam by Mr. Plant  Re-exam by Mr. Grant  record of the decisions?  A   They're mainly just notes.  Q   And the notes would be kept so that there would be  some written record of what was decided at the  meeting?  A   Yes.  MR. PLANT:  Thank you.  Those are my questions.  THE COURT:  Thank you.  Mr. Grant.  MR. PLANT:  My lord, when I say those are my questions, those  are the questions I have arising out of all of the  documents that my friend has delivered to me.  We're  now engaged in discussion with respect to what other  documents may or may not exist and what other  documents may or may not be producible, but I don't  think I need to trouble your lordship further with  that.  THE COURT:  Thank you.  All right.  Thank you.  Mr. Grant.  RE-EXAMINATION BY MR. GRANT:  Q   I just want to clarify so that you have some  completion to the witness' evidence.  Mr. Williams, you were asked about the  relationship of how much persons put in at the feast  and were directed to the Maggie Johnson feast book as  an example where it appeared that Marie Hobenshield, I  believe it was, put in quite a bit of money.  Does the  amount of goods -- I'm sorry.  She didn't put in  money.  She put in a lot of goods.  Does the amount of  goods or money that a particular person puts in at a  feast depend on their relationship to the deceased?  A   Yes, it does.  Q   Can you explain further?  A   It's usually pre-arranged at a meeting, planning  meeting prior to the feast that -- for instance, Marie  Hobenshield and my mother, Esther Williams.  That's  usually pre-arranged and discussed at how much money  or gifts that we put out at the feast.  And when they  actually go to the feast, there's an explanation to  the public as to why they're doing that.  And it's  generally their own family, immediate family, that  feels comfortable that will -- they like their  grandmother or their mother and that's told publicly  at the feast, and that's done because of the -- you  exceed more than the high chief.  Then they just want  to explain that so that people understand it.  Q   You were asked about carving of poles and you gave  evidence -- you were asked about whether or not when a  chief wants a pole carved, they sometimes have 6910  G. Williams (for plaintiffs)  Re-exam by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR.  THE  THE  THE  THE  THE  THE  THE  THE  THE  someone from another house carve the pole.  Is that  always the case, that when you -- when a particular  chief wants a pole carved, he would go to another  house or another clan?  A   Definitely.  The Wilksiwitxw does the actual -- that's  the connection.  There is always a connection there.  It's -- that's the laws.  That your Wilksiwitxw  performs the tasks for you for -- I mentioned already  the casket, the purchasing of the casket, the clothing  and all the tasks during the feast, and the same  applies to the fence around the grave site and the  same thing applies to a pole.  Your Wilksiwitxw carves  the pole for you.  Q   You were directed to Solomon Marsden singing the song,  the Limx o'oy at your house of the funeral feast of  Maggie Johnson.  Why was he -- and you explained that  he was from another house, and you -- I think you  indicated in cross-examination that that's -- that  could be done.  Why would a person from another house  at another clan in fact sing this song at your house  in that circumstance?  A   It was mainly between Gordon Johnson and Solomon.  That was mainly their arrangement.  And he asked him  to sing it because he could sing it really well.  And  that was mainly between those two, Gordon and Solomon.  And then he mentioned that in the feast.  Gordon  mentioned it in the feast and then he paid Solomon.  GRANT:  I'd just like you to refer to the provincial  documents book, the grey book.  COURT:  Excuse me, Mr. Grant.  Before you go on to that, may  I just clarify something?  If you're getting a pole  carved, would it be the Wilksiwitxw of the chief of  the house to whom the pole is to be carved?  WITNESS:  Yes.  COURT:  But if you were getting a casket or building a  fence, it would be the Wilksiwitxw of the deceased?  WITNESS:  Yes.  COURT:  So there would be a -- things would be done for a  house by different Wilksiwitxw for collections of  people depending on the particular function?  WITNESS:  It's always the Wilksiwitxw of the deceased  that —  COURT:  Yes.  But when you're talking about a pole, you're  not dealing with the deceased, so then it would be the  Wilksiwitxw of the chief?  WITNESS:  Yes.  That's correct.  COURT:  Thank you.  Sorry, Mr. Grant. 6911  G. Williams (for plaintiffs)  Re-exam by Mr. Grant  1 MR. GRANT:  2 Q   Could I have the grey book?  I'd like you to refer  3 briefly to Tab 8 and to page 109 in Tab 8.  And have  4 you had an opportunity to read that first paragraph  5 under "origin", the longer paragraph there?  If not,  6 I'd like you to do so now.  7 A   Yes.  8 Q   Now, as I recall your evidence, you indicated that  9 this was part of the Adaawk of Malii.  Is that the  10 entire Adaawk of Malii or is the Adaawk more than  11 that?  12 A   That's part of it, yes.  13 Q   That's part of it?  14 A   Yes.  15 Q   So there is more to the Adaawk than is set out in  16 there?  17 A  Well, generally when you talk about an Adaawk, you  18 expand this.  It's more detailed than this.  This is  19 mainly just a summary of it.  20 MR. GRANT:  Okay.  Now, I'd like to ask you to turn over —  21 THE COURT:  Just on that, Mr. Williams, this says:  "While the  22 ancestors of Malii were living at Salmon Creek,  23 Shugunia".  That's near Kispiox, is it not?  24 THE WITNESS:  Yes, it is.  25 THE COURT:  And that's part of the Adaawk of your house, is it,  26 that your people at one time lived at Salmon River?  27 THE WITNESS:  Yes, it is.  That was the migration when they  2 8 migrated from Gitanmaax.  2 9 MR. GRANT:  30 Q   So can you just describe where they migrated from  31 Gitanmaax?  32 A   They migrated from Gitanmaax and they went up and they  33 went to -- to -- to Git an gwalkxw.  That's on the  34 Kispiox River just above Sweetin River.  35 THE COURT:  Sorry?  36 THE WITNESS:  Just above Sweetin River.  It's about four miles  37 above on the Kispiox River.  3 8 MR. GRANT:  39 Q   And in the course of that migration, they were at  40 Salmon Creek or Shugunia?  41 A   Yes.  They just camped along the way.  42 THE COURT:  And from there to Kitwancool?  43 THE WITNESS:  Yes.  44 THE COURT:  From Git an gwalkxw?  45 THE WITNESS:  From Git an gwalkxw to Kitwancool.  46 THE COURT:  And the spelling of Git an gwalkxw is?  47 MR. GRANT:  Git an gwalkxw. 6912  G. Williams (for plaintiffs)  Re-exam by Mr. Grant  1 THE COURT  2 MR. GRANT  3 THE COURT  4 MR. GRANT  Was it Gitwangak?  No, it's not.  It's totally different, isn't it?  I think you should have the spelling.  5 THE SPELLER:  G-i-t  a-n  g-w-a-1-k-x-w.  6 THE COURT:  That's near the confluence of the Sweetin and  7 Kispiox Rivers, is it?  8 THE WITNESS:  Yes.  It's upstream from that.  9 THE COURT:  Yes.  Thank you.  Thank you.  10 MR. GRANT:  11 Q   I'd just ask if you can turn to page 175, which is in  12 the same tab.  It's just a couple of pages over.  This  13 is the page that appears to be summaries.  And just  14 that heading, just up from the bottom, that main  15 heading, it says "Origins of the Crest Explained in  16 Myths", brackets, "(Adaawk and traditions)".  Do you  17 agree -- well, would it be correct to say that Adaawk  18 are myths?  19 A   No.  I don't agree with that.  20 MR. GRANT:  Can you explain what you understand Adaawk to be?  21 MR. PLANT:  Well, the witness was asked what he understands  22 adaawk to mean during his evidence in chief.  23 THE COURT:  Yes, he was.  24 MR. PLANT:  That the answer, as I recall it — I don't have a  25 reference now -- is -- was information you have to  26 know.  But the answer was expanded on at some length.  2 7 THE COURT:  Yes.  28 MR. GRANT:  I won't pursue it.  2 9 THE COURT:  Thank you.  3 0 MR. GRANT:  31 Q   You were asked on cross-examination about -- on page  32 6861 and 6862, Volume 108, about Lelt's fishing site  33 and your use of that fishing site.  And you were  34 asked, line 8 at 6862:  35  36 Q   "So would it be fair to say that keeping  37 a presence there at the fishing hole is  38 a way of preserving his ownership?  39 A   Yes, and that nobody else comes around  40 and uses it without his consent."  41  42 And then you were asked:  43  44 Q   "Did the Gitksan recognize a concept of  45 abandonment?  In other words, if you  46 leave your territory alone you might  47 lose it to somebody else? 6913  G. Williams (for plaintiffs)  Re-exam by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  A  Oh, no, no."  A  MR.  A  GRANT  MR. PLANT  THE COURT  MR. GRANT  Now, if you were not present over the last three years  on Lelt's fishing site, would that affect under  Gitksan law the recognition of who owned that fishing  site?  No, it wouldn't.  Our very teaching in the law of our  people and that sticks to everybody's mind and the  fundamental principle of law that we're teached is  that you inherit land.  You inherit territory or  fishing sites.  And what we're always told is that we  must always pass this on to future generations, to the  future children, and it stays right into that house.  And that would be the case even if Lelt did not have a  young person like yourself present at his fishing  site?  That is correct.  :  Now, you were asked on the same page and in the same  vein, line 31:  Q   "Now, correct me if I am wrong, but my  understanding of your evidence about how  you acquired this name was that Roddy  Good lost"...  This is your name, Ax gwin dexw.  "... that Roddy Good lost his right to  it because he never fulfilled the  responsibilities that went with it?  A   That's correct."  Is Roddy Good still considered a member of Malii's  house?  :  I object to that.  I was simply going over evidence  that my friend had canvassed at some length.  I don't  think that there was any ambiguity or confusion left  by that that permits re-examination.  :  I think Mr. Plant is right, Mr. Grant.  I would be  happy to have the witness answer that question,  because it can be yes or no, but it is a new subject  and I don't think you're entitled to pursue it in  re-examination, but the question whether he remains in  the house or not is a matter that I see no harm in  having it answered, but I don't think you're entitled  to explore that.  :  I wasn't going to explore it in any further. 6914  G. Williams (for plaintiffs)  Re-exam by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  THE  MR.  THE  MR.  THE  MR.  COURT:  Does he remain in Malii's house?  WITNESS:  Yes, he is.  GRANT:  Now, I'd like you to refer to the grey document  book, Mr. Williams, and I'd like you to refer to Tab  9.  And this is Exhibit 582 for identification, which  is numbered 15.  COURT:  I'm sorry.  The tab number?  GRANT:  Tab 9 of the grey book.  And it's the — well, maybe  it's the only excerpt you have.  Yes, it is.  COURT:  GRANT:  Q  And you've had an opportunity to read over that.  This  is from Mr. Sterritt's notebooks, the reference to a  telephone conversation with yourself --  A   Yes, I have.  Q   -- on the right-hand column of page 9 there.  Now,  this was put to you on cross-examination by Mr. Plant,  and I would refer you to page 6863, line 46, after  referring you to this, and he asked you where An dam  dam is, and you said that's in the Kitselaas area.  Then he says:  Q   "Now, as I understand it, Mr. Williams,  one of the responsibilities that goes  with a name and territory is feasting?"  Answer in the affirmative.  Q   "You are nodding and I think that means  yes?  A Yes.  Q   If a chief dies, then the clan has to  hold the feast and pay the expenses?  A   That's correct.  Q   So the lesson that we should take from  this story of Little Oliver Creek is  that you might lose your land if you  can't feast for it?  A   It may be, yeah.  Q   In effect that would be a kind of  abandonment, wouldn't it?  A  Abandonment, no, I don't think so.  I  don't think you would abandon your  land."  And then the Court interjected at that point in the  conceptualization of abandonment.  Why was the land at 6915  G. Williams (for plaintiffs)  Re-exam by Mr. Grant  1  2  A  3  4  5  6  7  Q  8  A  9  10  11  12  Q  13  A  14  Q  15  16  17  A  18  19  Q  20  21  22  23  A  24  Q  25  26  A  27  Q  28  29  30  31  32  A  33  MR. GRANT  34  35  36  37  MR. PLANT  38  39  40  41  42  43  44  45  46  47  THE COURT  Little Oliver given to Luulak?  Because they had -- there was nobody to help that  particular family and when -- when there was death  there, the Luulak and Dax jok found the person that  had died with another lady, and there was nobody to --  to take care of the funeral, so they came along and --  Was it right at the place?  Yes.  And they helped with the funeral.  They  performed all the tasks for the funeral, and then they  had a feast in Gitwangak, and that's when the lady got  up and gave the land to Luulak.  And this lady was a Gitksan or a Kitselaas?  Kitselaas.  And in those kinds of circumstances, what you've just  described, who decides if land is given when another  house or clan buries a chief?  It's mainly the person that owns the land, the chiefs  in that house.  Does such a transfer happen automatically in a way  like by operation of law or is it a decision that  would be made in each circumstance?  In other words,  would that chief have to give the land?  No.  He wouldn't have to give it.  I'm not going to ask you to pull out the map, but you  remember we all pulled out big maps yesterday?  Yes.  Which we've all now put away.  And you were asked if  that map was a -- a draft -- or I'm sorry.  You were  asked if that map was the map that you had prepared or  you were working on.  You remember Mr. Plant asked you  that?  Yes.  :  And I think you said yes, and we all put our maps  away.  Was -- do you know what happened to that map or  the work on that map after you left the tribal  council?  :  Well, I think I object to that, my lord.  My friend  asked this witness in chief about his work as a  mapper, and the sole purpose of my question was to  identify the document, that is Exhibit 102 at this  trial, as the map which was the product of his  research.  And I -- that was the extent of my  cross-examination on the subject.  I don't know that  the faith of that map is not something that could have  been led by my friend in chief as he was carrying on  with the subject of research and mapping and so on.  :  You are splitting your case, aren't you, Mr. Grant? 6916  G. Williams (for plaintiffs)  Re-exam by Mr. Grant  1  2  MR.  GRANT  3  4  THE  COURT  5  6  7  8  9  10  MR.  GRANT  11  12  13  14  THE  COURT  15  MR.  GRANT  16  17  MR.  PLANT  18  MR.  GRANT  19  20  MR.  PLANT  21  22  23  24  25  MR.  GRANT  26  27  28  29  THE  COURT  30  31  32  33  MR.  GRANT  34  THE  COURT  35  36  37  38  39  40  41  42  43  44  45  46  MR.  GRANT  47  THE  COURT  You brought it up.  Your friend --  :  I didn't bring up the map.  I didn't bring up that  map.  :  No, no.  You brought up the fact that he was engaged  with the tribal council to work on mapping, and your  friend merely identified the map that he worked on.  Surely you have embarked upon and opened up that  subject.  Surely it's not open to you to start over  again on that same subject, is it?  :  Well, I'm -- okay.  I'm not going to press the point  on that question.  I would like to ask another  question directly related to that document and  hopefully avoid having to pull it out.  :  Yes.  We don't want to do that, do we?  Go ahead.  :  Was that -- I believe it's Exhibit 105, that map,  for the record.  Was that map --  :  It's 102.  :  102.  Was that map that you pulled out yesterday,  was that a working draft that you were working with?  :  Well, I object again for the same reason.  The  characterization of the map was not the subject I  pursued.  I simply wanted to identify the document as  the map which is the product of Mr. Williams' research  efforts.  :  Now, my friend has introduced a document, which is  the specific document.  I just want Mr. Williams to  explain what it is.  I didn't introduce that document  at all to this witness.  :  Well, I think Mr. Plant's objection is legally well  founded.  Re-examination is not a blank cheque to  introduce evidence on subject-matters which have been  raised and dealt with on -- in chief.  :  If I had raised the map, my lord --  :  But you raised the subject of mapping and the work  he did in mapping, and having done so, it seems to me  that that's as far as you can take it.  If you wanted  to get into mapping, you should have done so, I  suppose.  I think the objection is well founded.  On  the other hand, I don't see much harm in hearing the  evidence subject to the objection in case someone  sometime may think that I have erred in my application  of the rule against extending evidence by  re-examination, so I'm going to allow you to adduce  the evidence to the extent of answering the question  you've asked, whether it's a working draft.  :  That's all.  :  I think I know what he's going to say.  I'm not sure 6917  G. Williams (for plaintiffs)  Re-exam by Mr. Grant  6 THE COURT  7 MR. GRANT  8 THE COURT  9 MR. GRANT  1 where that's going to take us, but I'll allow you to  2 ask that question subject to an objection.  3 MR. GRANT:  4 Q   Was that map a working map?  5 A   Yes.  The number's 102?  Exhibit 102.  Not 120.  Oh, yes.  It was 102.  It was 102.  I'd like to refer you to Exhibit 583.  10 I'm sorry.  That would be --  11 THE REGISTRAR:  Tab 10.  12 MR. GRANT:  Yes.  Tab 10.  And it would be —  13 THE REGISTRAR:  March 24th, 1980 band council resolution.  14 MR. GRANT:  15 Q   The fifth band council resolution there, which is  16 dated, as the clerk said, March 24th, 1980.  It's  17 Exhibit 583.  And you were asked to identify this band  18 council resolution, which you did.  Can you explain  19 what that was about and what happened with respect to  20 that band council resolution?  21 A   It was mainly to get the Department of Indian Affairs  22 to issue a timber permit to sell timber on one of the  23 reserves, or two reserves.  24 Q   And in fact did that occur?  25 A   Yes, it did.  26 MR. GRANT:  And on which -- on which territories or on which  27 clan's territory was that -- did that logging occur?  28 MR. PLANT:  I thought the witness' evidence was that the permit  29 had been issued.  If you want to establish --  3 0 MR. GRANT:  31 Q   I see.  Did logging occur after the permit was issued?  32 A   Yes.  33 MR. GRANT:  And on whose territory did it occur, which clan's --  34 Let me ask you another question.  Was there any  35 dealings with the hereditary chiefs relating to that  36 logging?  37 MR. PLANT:  There's been lots of evidence about that, my lord.  38 THE COURT:  It seems to me, Mr. Grant, this is all a matter that  39 was part of your case in chief.  40 MR. GRANT:  I never introduced this document or led --  41 THE COURT:  No, but the rule against re-examination was based  42 upon subject-matters, not individual documents.  43 MR. GRANT:  I never dealt with this witness with respect -- my  44 lord, with respect to the issue of logging on the  45 reserve.  46 THE COURT:  There's a lot of evidence of the logging on the  47 reserve, as I recall. 691?  G. Williams (for plaintiffs)  Re-exam by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR. GRANT:  There was logging on territories, not the logging on  reserve.  This is a --  THE COURT:  Well, even then it's a matter of logging.  It seems  to me it was never intended that re-examination would  go on like this.  It really never was.  This is quite  an unusual trial, but not that unusual, I should  think, that I should give an opportunity to two full  examinations in chief.  MR. PLANT:  My recollection of the evidence in chief on logging  was that it did not differentiate between logging on  reserves or logging outside reserves.  It's where has  there been logging, and there was some evidence about  that and other evidence followed from that.  MR. GRANT:  I'd like to refer you to the last band council  resolution, which is Exhibit 584, which you  identified.  COURT:  That's Tab?  THE  THE  MR.  THE  MR.  REGISTRAR:  GRANT  COURT  GRANT  Q  A  Q  Tab 10.  Tab 10, the very last document.  Thank you.  Do you have that?  Yes.  Mr. Williams, can you explain?  What was that band  council resolution about?  Why was that passed?  A   That was mainly to try and attempt to recover a loan  that was granted to Kitwanga Native Development  Incorporated and to appoint solicitors to try and  recover the funds.  MR. GRANT:  Now, in examination by Mr. Macaulay yesterday -- I  just want -- I don't want to misstate.  Oh, yes.  Exhibit 588.  You're shown this, and this was a -- a  fishing -- Indian Food Licence, it's entitled, dated  June 30th, 1983.  Now -- and I'm not certain.  Do you  recall anything about the circumstances around that?  MACAULAY:  My lord, the witness gave evidence that he  recognizes the signature.  He knew nothing else about  it.  And I don't think that that's a proper subject of  re-examination.  He had no recollection of anything  about it.  COURT:  That's what he said, Mr. Grant.  MACAULAY:  I don't — this is an unusual area of  re-examination.  Surely that can't be improved on or  expanded on.  COURT: I think it would be proper to ask the witness if he  has since his evidence yesterday acquired any further  recollections about the matter -- the matter suggested  MR.  THE  MR.  THE 6919  G. Williams (for plaintiffs)  Re-exam by Mr. Grant  1 yesterday, if he's now thought of something.  And I  2 know that because of the restriction of counsel he  3 doesn't have any anticipation one way or the other,  4 but I think it would be a fair question to ask him if  5 in view of the answer he gave yesterday, if time has  6 refreshed his memory overnight, and I think you may  7 ask him that.  8 MR. GRANT:  Yes.  And I'm sorry.  That was a better formulation  9 of the question.  10 MR. MACAULAY:  I have no objection to that.  11 THE COURT:  Yes.  Thank you.  12 MR. GRANT:  13 Q   This document was -- was shown to you for the first  14 time yesterday afternoon.  You didn't recall anything.  15 Having had overnight to think about it, can you recall  16 anything else about that 1983 licence?  17 A   I know at one time that we've always resisted the  18 Department of Fisheries issuing individual permits to  19 individual band members, and we tried to work out some  2 0 arrangements where that wouldn't happen.  That's  21 basically all I can remember on it.  22 Q   Now, you were asked, page 6894, by Mr. Macaulay about  23 expenditures, and it indicates:  24  25 Q   "The expenditure by the band council in  26 the average year exceeds a million and a  27 half dollars, doesn't it?  28 A   Yes it does.  29 Q   Do you remember what it was in 1986,  30 '87?  31 A   It may be around a million and a half  32 dollars."  33  34 What proportion of those -- of that budget would be  35 for social assistance to band members?  36 A   Social assistance is about at least $300,000,  37 $300,000-a-year budget.  38 Q   And what would be -- what proportion of that budget  39 would be for education, for paying students who are  40 going to school?  41 A   It will be a bit higher than social assistance.  It  42 may be around 400,000 a year.  43 Q   And what proportion of that budget would be for  44 economic development?  45 A  Very little.  I would say maybe around 25,000 maybe.  46 Q   And you indicated that there was, I believe, 15  47 employees.  What proportion of that budget would be 6920  G. Williams (for plaintiffs)  Re-exam by Mr. Grant  1 for salaries for band employees?  2 A  We have different programmes.  We have CHR.  I can't  3 remember offhand what their budget is.  It's usually  4 around 45,000 for community health programme with  5 health and welfare, about 25,000 for social worker,  6 about the same for an education worker, and the band  7 manager and office administration was probably around  8 90,000 maybe, and there's Canada Manpower programmes  9 that come on, and probably at least $50,000 for that,  10 short-term programmes.  11 Q   Now, you were asked about -- just a minute.  Right at  12 the end yesterday.  This was page 6897 -- by Mr.  13 Macaulay about the funeral feast of Maggie Johnson.  14  15 Q   "... do you remember that evidence?  16 A   Yes.  17 Q   She was a very important person in  18 Kitwancool?  19 A   Yes, she was.  20 Q   Was she a high chief?  21 A   Yes.  22 Q   The first chief of her house?  23 A   Yes."  24  25 Was Maggie Johnson the Miin Simoogit of her house?  26 A   On the woman's section, yes.  27 Q   And who would have been the Miin Simoogit of the whole  28 house?  29 A   Gordon Johnson.  30 MR. GRANT:  My lord, I believe I'm through.  I also see the time  31 and there was some other outstanding matters that Mr.  32 Rush was dealing with other counsel on relating to  33 Monday's events, and I believe Mr. Plant's got some  34 instructions.  Maybe if we could take the break, and  35 I'd just like to review my notes in case there's  36 something out of this morning.  37 THE COURT:  All right.  38 THE REGISTRAR:  Order in Court.  Court will recess.  39  4 0 (PROCEEDINGS ADJOURNED)  41  42  43  44  45  46  47 6921  2  3  4  5  6  7  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  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. 6922  G. Williams (for Plaintiffs)  Re-exam by Mr. Grant  Exam by the Court  1 (PROCEEDINGS RESUMED PURSUANT TO AN ADJOURNMENT)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Mr. Grant.  5  6 RE-EXAMINATION CONTINUED BY MR. GRANT:  7 Q    Yes.  I just had one or two more questions, my lord.  8 Yesterday, you were asked about the Gitwangak sawmill  9 and about the number of band members who were employed  10 there and tax exemptions, et cetera.  Mr. Williams,  11 does the band have control over how -- over whether or  12 not the mill remains open or not?  13 A    No, it doesn't.  14 Q    Does it have control over who Westar hires to work  15 at the mill?  16 A    No, it doesn't.  17 Q    Aside from the Moricetown Band which has their own  18 sawmill and evidence has been given, and your band  19 which has Westar mill located on it, do any of the  20 other reserves have sawmills located on them?  I am  21 talking about the Gitksan and Wet'suwet'en reserves?  22 A    No.  23 MR. GRANT:  Those are my questions on re-direct and my re-direct  24 is finished, my lord.  25  2 6 EXAMINATION BY THE COURT:  27 Q    Thank you.  28 Mr. Williams, two maters I wanted to ask you  29 about:  Firstly, in terms of size by population, would  30 Gitwangak be the biggest population reserve or is  31 Hazelton or Moricetown bigger or approximately the  32 same size or what?  33 A    Hazelton is the biggest population, next comes  34 Moricetown, and then Kispiox, and then Kitwanga, and  35 then Kitsegukla, and there is three other ones;  36 Kitwancool is probably next biggest, and Hagwilget and  37 Glen Vowell are the smaller bands.  Population is  38 about 6,400.  39 Q    In all of the villages or in the whole area?  40 A    In all the villages.  41 Q    All right, thank you.  That's helpful.  The fishing  42 by-law -- I am just looking at Exhibit 575 which is in  43 tab 15 of the black book.  I am not purporting to ask  44 you to construe the language but particularly clause  45 4(a) says Git'suwet'en persons are permitted to engage  46 in fish in waters of the Bands at any time and by any  47 means.  I haven't read this carefully, 6923  G. Williams (for Plaintiffs)  Exam by the Court  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  A  Q  A  A  THE COURT  MR. GRANT  THE COURT  MR. GRANT  THE COURT:  Q  but is there some reason why that's limited to  Git'suwet'en people?  I am sorry, it is Gitksan and  Wet'suwet'en people.  That wasn't a really good  question.  As I would read that, it would permit you,  and I know that you have your own views of  conservation, but it would permit you if you wished to  literally take all salmon that go by, that go through  the reserve?  Take all salmon?  Yes, as I would read that clause 4(a)?  Yeah.  The other thing it includes is the trout and  those sort of things, but the main salmon that we take  is the steelhead, spring salmon, sockeye.  What I am trying to sort out in my mind is that if  the Gitwangak band took all the salmon, there would be  none left for Kispiox, Hagwilget, Moricetown.  There  doesn't seem to be any limits to the amount of salmon  you can take.  Is there something that I am missing in  all this that makes what I have just stated untrue?  It does suggest that, but our -- we have to live  there all our lives and future children, and one of  our major philosophies of the elders is conservation.  We have to ensure that there is more salmon for the  future.  :  Yes, I understand all those concepts, and all those  intentions.  I am just wondering if, when this was  prepared in this form and it means you didn't disallow  it, it was recognized that literally, very literally,  you could suggest you could take everything.  :  I think of course it's subject to variations or  restrictions made pursuant to the by-law in 4(a) and  I'd ask -- the witness may be able to explain in the  context of paragraph 6 which allows for the fishing  and the use accordance with traditional laws and  customs.  :  Well, that sounds to me that that deals with the  consequences of fishing.  :  Well, but persons could only fish -- what I am  saying is persons could only fish for all the fish if  that was in accordance with the Gitksan laws and  customs.  That's not the way I would have read this, but  that's a possible construction, Mr. Grant.  And I  don't think it's necessary for me to construe this, I  am just wondering if such was the intention when it  was prepared and passed and not disallowed or -- and 6924  G. Williams (for Plaintiffs)  Exam by the Court  1  2  3  4  A  5  Q  6  7  8  9  10  11  A  12  Q  13  A  14  THE  COURT  15  16  17  18  19  THE  COURT  20  21  MR.  GRANT  22  THE  COURT  23  MR.  GRANT  24  25  26  27  28  THE  REGIS  29  MR.  GRANT  30  31  32  33  MR.  PLANT  34  THE  COURT  35  MR.  GRANT  36  MR.  PLANT  37  MR.  GRANT  38  39  40  THE  COURT  41  42  MR.  PLANT  43  MR.  GRANT  44  45  46  47  understood that that read literally the Gitksan and  Wet'suwet'en at the Gitwangak reserve could take all  the salmon that were going up the stream?  No.  I don't think we would take all the salmon.  I don't think you would either, but I have to deal  with that on a slightly different level and it seems  to me that that is -- I am wondering if there is any  reason why that interpretation could not be placed  upon this language and if you can assist me in that  regard?  It does suggest that, and I would --  But you say you wouldn't do it?  We would never do it.  :  Yes, all right.  That's all I have.  Thank you, Mr.  Williams, you are excused.  (WITNESS ASIDE)  :  All right.  You are not going to call any more  witnesses today, Mr. Grant?  No.  There is a couple of topics.  Yes.  Go ahead.  Thank you.  I'd like to deal with them in order.  One of them is  there was a document which I keep assuring madam --  there is the filing, I see this is again the bottom of  the page has been used rather than the top.  I think  it is Exhibit 57 --  RAR:  576, 514.  576, yes.  I will just look, and pagination is --  there was some confusion.  I have got pages 13 to 16  now instead of 14 to 17.  I will file that as the  exhibit.  I will arrange for that immediately after.  What were the pages?  Page 1 and 14 to 17.  Yes.  That's the note I have.  I had the table of contents, page -- the title page,  the table of contents which is the page right after  and pages 14 to 17.  I haven't got the table of contents, but no one will  object to that.  No.  It makes sense as to what it is.  The other matter was I believe that -- of course  I would be asking my friend and he and I reviewed  his grey book, and I understand he will be excising  all of the documents except those that are exhibits. 6925  Discussion  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  MR.  COURT:  GRANT:  THE  MR.  MR.  MR.  MR.  MR.  MR.  MR.  THE  THE  MR.  THE  THE  MR.  THE  THE  MR.  MR.  THE  THE  THE  THE  MR.  COURT  PLANT  GRANT  PLANT  GRANT  PLANT  GRANT  PLANT  COURT  Yes.  The other matter was that I had put in two exhibits  yesterday for identification, 577 and 578, and I would  ask that those be marked as exhibits proper now?  My  friends had not had an opportunity to review them at  that time and I ask that they be marked as exhibits  proper?  What do you say, Mr. Plant?  Well, I'm —  One of them my friend cross-examined on.  I am in a bit of disarray.  577 was the package?  Yes.  And 57 8 was the --  January '86 Band Housing Report.  Yes.  I don't oppose marking those.  Tab 577 is the package.  It should be marked now  just as 577.  (EXHIBIT 577  PACKAGE OF DOCUMENTS PREPARED FOR  BAND MEETING OF APRIL 15, 1987)  No objection there, Mr.  Plant and  has  loose  COURT:  The other one?  GRANT:  578.  REGISTRAR:  Band Housing.  COURT:  Yes, all right.  Mr. Macaulay?  MACAULAY:  My lord, I take the position that this 57?  not been proven.  This includes expressions of  opinion.  COURT:  I am sorry, can you tell me, is it -- is it a  document or is it a tabbed document?  REGISTRAR:  Loose document, my lord.  GRANT:  It was a document authored by -- it was a report on  the housing conditions in January of '86 authored by  the witness.  MACAULAY:  And it is not relevant.  REGISTRAR:  I don't have copies for you.  COURT:  I don't think there was a copy for me.  REGISTRAR:  You do not have 577, either.  COURT:  Your objection, Mr. Macaulay, is that it doesn't  comply with the Evidence Act and is not admissible?  MACAULAY:  That's correct, and it is not relevant.  It  includes such statements as:  "It is our opinion that  we are being denied the full benefit of the R.R.A.P.  Programme and, as a result, we are wasting both time  and money to implement the current R.R.A.P.  Programme".  We have no idea what the R.R.A.P. 6926  Discussion  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  MR.  THE COURT  MR.  MR.  GRANT:  Programme is and it is somebody's opinion.  MR. GRANT:  I am not seeking to adduce it for the opinions, of  course, but only the facts that are set out therein  with respect to the reports as to specific houses and  the problems on those specific houses.  I don't intend  to rely on it for any of the opinions.  With respect  to the R.R.A.P. Programme, that is a question of law;  it is governed by regulations, federal legislation,  but again, I am not seeking it for the opinions.  MACAULAY:  There is no evidence about it.  Your lordship  really doesn't know anything about the R.R.A.P.  Programme.  Unless, as Mr. Grant says, I go to the statutes and  find it in the regulations.  Well, I wonder if the way  to solve the matter would be for Mr. Grant to take the  document and see if he can exclude from it those  matters that are not admissible and put forward a  document that he says is admissible.  Just the report on the housing itself.  I will do  that, my lord.  MACAULAY:  What relevance has the question of siding got to  do with it?  The author of this document says the  major problem with siding is the poor quality of  materials were used for siding and goes on to talk  about three-eighths inch plywood was used and  uninsulated contributes to the heat loss, and that  kind of thing.  There is no evidence -- we have no  evidence of that at all, just some unsigned opinion  that cluttered up the record.  That won't assist your  lordship with the issues that's raised by the  pleadings at all.  MR. GRANT:  Well, my lord, I think it came directly when it was  dealt with by cross-examination.  Both defendants are  saying that everything is fine, the reserves are  established and --  COURT:  I don't think anybody suggests everything is fine.  GRANT:  Not everything is fine, but let's work through what  we have.  And the defence of the establishment of the  reserves, the acceptance of the reserves, Section 34  of the Provincial defence, the cat's paw position of  the Federal defence in that regard.  I take the  position, my lord, that my friend says, well, your  band members are really way better off than any other  IWA workers.  In that context I think that you have to  look at the whole picture and the witness gave  extensive evidence about housing priority for four  years.  THE  MR. 6927  Discussion  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  MR.  THE  MR.  MR.  THE  MR.  THE  MR.  THE COURT:  That's a problem we have with a case like this.  You  get evidence from a witness and then it is sought to  be buttressed by a long report that the witness  prepared.  MACAULAY:  Not the witness' evidence we are talking about.  We are talking about, for instance, the -- all the  contents of the Social Housing Programme.  COURT:  But the witness wrote the report, did he not?  GRANT:  Yes, he wrote this report.  PLANT:  No.  That's not the evidence, my lord.  COURT:  I thought he said he wrote it.  PLANT:  He was involved in the writing of it with someone  else.  COURT:  Yes.  MACAULAY:  And an unresolved issue with the consolidated  revenue fund, guide-lines by the C.M.H.C.  THE COURT:  I think either Mr. Grant can take it away and see if  he can edit it or, fading that, I think I will have to  read it and see what I think should be in and what  shouldn't be in.  I haven't read the document and  there wasn't a copy available so I haven't looked at  it.  MR. GRANT:  Yes, you indicated it was an exhibit for I.D.  THE COURT:  Yes.  MR. GRANT:  I am happy to do that and I can appreciate my  friend's concerns relating to the opinions.  I think I am going to leave it for identification at  the moment and you can speak to it again whenever  convenient, Mr. Grant.  I think that deals with the documents relating to  this witness.  I don't think there is any difficulty  with Mr. Plant and I as to his documents.  We agreed  as to what goes in and he'll speak to the reporter.  What I would like to comment on is with respect  to the viewing.  THE COURT:  Yes.  MR. GRANT:  On Monday, my lord.  I have arranged, and these  documents have been couriered over or faxed over to my  friend's office.  Mr. Rush has been dealing with this  while I have been in court.  But we have a document  which is an itinerary for the court view June 6, 7,  and 8, together with maps and a copy for yourself  which has a water-proof container in case things are  not as --  THE COURT:  That won't be necessary, Mr. Grant.  MR. GRANT:  The water-proof container, I hope that you have  effect on your rulings on that point, my lord, as I am  THE COURT  MR. GRANT 692?  Discussion  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  MR.  THE  MR.  PLANT  COURT  GRANT  THE COURT  MR.  THE  MR.  MR.  MR.  GRANT  COURT  PLANT  GRANT  PLANT  THE  MR.  THE  MR.  COURT:  GRANT:  not looking forward --  To protect the documents from the tears of joy.  Will it dissolve if it gets wet?  Well, we hope that the lines on the maps won't  dissolve when they get wet.  Just as a matter of curiosity, who's going to go on  the view, you or Mr. Rush?  I will be on the view.  And for the Province?  Well, my lord, Mr. Mackenzie and a provincial  representative which is contrary to the likes that Mr.  Mackenzie gave you earlier this week.  Those are the only matters I wish to speak about.  I should say that Mr. Mackenzie, who is behind me in  court, advises me he hasn't yet had the pleasure of  seeing the maps that are supposed to be contained in  this brochure or pamphlet or material that you have  handed, but he looks forward to that opportunity.  And for the Federal Crown.  MACAULAY:  Laurel Russell, my lord.  COURT:  All right.  Yes, Mr. Grant.  Okay.  As you recall on Monday, you suggested that  counsel communicate with each other directly and that  was done, and this itinerary, the itinerary itself has  been delivered to Mr. Mackenzie and to the Federal  Crown, and it incorporates the Federal and  Provincial -- or the -- basically the Provincial  concerns with respect to additional areas.  We also --  there was -- yesterday a series of letters were faxed  back and forth and I will just say this:  That there  are two -- there are a number of points that give rise  to concern.  One is that yesterday for the first time,  yesterday afternoon, Mr.  Mackenzie corresponded with  Mr. Rush -- I am sorry, it was yesterday.  I won't say  it was yesterday afternoon because I don't have the  time of it, but in any event, he corresponded with Mr.  Rush and he stated that he wished the -- contrary to  my earlier advice to you and to the court we do wish  to have a lay representative for the Province in  attendance during the helicopter view.  My lord, we  relied on the position taken in court and the fact  that there was no change in that position after your  lordship commented that of course if the Province  wished someone on the flight they could do that.  But  decisions were made, co-ordination has been set up and  established, and in order to have the persons who are  necessary for the expanded view, all of that was done 6929  Discussion  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. GRANT  MR. PLANT  MR. GRANT  based on the decision made on Tuesday, and we say that  a whole series of decisions and organization has been  undertaken by the plaintiffs and that this very late  change in plans by the Provincial defendant is  disruptive and that it's too late in the day.  And so  we ask that you consider not agreeing to that at this  time.  The second point raised was that Mr. Mackenzie,  again by correspondence yesterday for the first time,  suggested a Forest Service air co-ordinator one half  hour check-in procedure on June 6 and 7 while the  helicopter view is in process.  What does that mean?  Well, what it means and Mr. Rush --  I'd be happy to explain what it means in order that  my friend would have an opportunity to consider it  perhaps more fully than was permitted by the language  of the letter.  Simply a procedure that happens there  is during the summer fire season and Forest Service  people have an air co-ordinator stationed in the  Smithers Airport and he has his primary function.  He  or she, their primary function to keep track of fire  activity, but they also will on request provide the  service of keeping track of aircraft that are in the  area for safety reasons and, in this particular case,  after we had -- were making some inquiries about the  logistics of the view, I am instructed that the Forest  Service people offered this service.  All that's  contemplated is that every half hour the co-ordinator  who's in the air traffic control office, some such  place in the Smithers Airport, will make contact with  the pilot or pilots of the helicopters to make sure  that everything is all right, find out where you are,  and it was offered to us as a safety mechanism.  And I  might say without being impertinent that Mr. Mackenzie  was delighted to receive such an offer and it was  intended to be passed along.  It was passed along with  the same spirit if I might put it that way.  Well, I have been involved with this communication.  Mr. Rush communicated by fax letter yesterday to Mr.  Mackenzie and I just spoke with him at the break.  He  hasn't heard back from Mr. Mackenzie concerning it,  but Okanagan Helicopters, which this arrangement is  made with, has their own safety procedure.  They have  regular contact and call-in bases at all times.  And  that monitoring -- in fact, I think it is probably  required by regulations.  In any event, they have that 6930  Discussion  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. GRANT  THE COURT  MR. GRANT  procedure.  The concern expressed by Mr. Rush was that  it was, a) it was not necessary that there would be --  that there is a Provincial representative on the  plane.  And we are concerned about monitoring by a  representative of the Provincial Crown.  Mr. Rush was  under the impression that of course it leaves the  logistics open for tape recording of the two  communications between the two plaintiffs which we are  opposed to.  I understand now from what Mr. Plant was saying  it was a voluntary offer because I guess this person  isn't busy with forest fires right now, but we have  made our own investigations with Okanagan Helicopters.  They call in and make regular contact to not only the  Smithers base but to all their bases at every time, so  I don't think that is necessary and that may be easily  resolved.  :  Well, I am not going to get into that, Mr. Grant or  Mr. Plant.  I am going to leave it to the pilot to  make such arrangements that he thinks are necessary to  ensure the safe return of us all and, if there is a  free facility that's available and it is useful, I  would expect the pilot to take advantage of it.  But  subject to that, I am not going to report to pass here  on what is safe for the flying practises required.  If  there is a system in place as I expect there would be,  I would nevertheless expect the pilot to take  advantage of any other facilities that come available  and I am not going to second guess him on it.  I will  leave it to him.  I don't think it is a matter that I  should have to try and deal with, and I don't propose  to do so.  :  Okay, my lord.  There is just the other point in  terms of logistics that the plaintiffs have -- and Mr.  Mackenzie was advised of this.  The plaintiffs will  arrange for all of the lunches en route and  co-ordinate that so there is no need for everyone  to -- and also on the third day is a river trip  subject to of course river conditions, and I think you  have already been apprised of that.  : Where is the river trip? I took it, when I heard  about it, we were just crossing the river. Were we  doing more than crossing the river?  :  We are going down the river.  And it is proposed  that it would be commencing at a place called Mission  Point which is across from Hazelton, and it would go  down the river to Wilson Creek which is downstream 6931  Discussion  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  of -- downstream of Gitwangak, so it would be a sector  of the river.  And the arrangements would be made for  you and the others to get road passage back up so we  don't have to spend the time going up the river.  And  finally, my lord --  THE COURT:  Spent most of my life —  MR. GRANT:  Well, after your comment on slippery slopes, my  lord, I didn't want you to feel you had to paddle up  the river as well.  The other point is that -- is that  a number of the plaintiffs have proposed a barbecue  for the Tuesday evening and our -- would be happy to  do that at Moricetown and make arrangements for that.  And I of course wanted to advise you, of course all  parties who are involved would be welcome at this, and  it would just be a get-together and they suggested  that this might be something that --  THE COURT:  I am going to leave it to counsel with that sort of  thing.  If they all agree, I am perfectly happy to  have it programmed.  If anyone does not agree and I  don't want to know what the position of anyone is --  MR. GRANT:  Yes.  I wanted to alert you to that.  We will  discuss that between counsel.  THE COURT:  I will be happy to be governed by whatever all  counsel agree on.  MR. GRANT:  I believe then the only matter that I have  outstanding was the concern about the logistics with  respect to the late notification on the late  representative --  THE COURT:  Before I deal with that, counsel don't think we have  to take any maps with us beyond these?  MR. GRANT:  No.  This would be all that we'd see.  What this is  is basically, as it is coded with a key map, is to  show the areas that are there.  PLANT:  I haven't seen the maps so I can't say --  COURT:  Well, how be it if you advise Mr. Mackenzie, Mr.  Plant, that he brings along any other maps that he  thinks ought to be with us and Mr. Macaulay may want  to take one of his.  MACAULAY:  Very useful, my lord.  COURT:  All right.  Well, on the question of the logistics,  I take it, Mr. Macaulay, that the Federal Crown still  only wants one seat in the one which I will be riding?  MACAULAY:  Yes, my lord.  COURT:  Four seats in the other.  Well, it seems to me, Mr.  Grant, that we are not playing checkers.  I think if  the Provincial Crown wants one out of four seats,  that's not unreasonable.  There may be difficulties  MR.  THE  MR.  THE  MR.  THE 6932  Discussion  1 and there may be destruction but equity loves equality  2 and 25 percent isn't asking too much I don't think.  3 MR. GRANT:  No.  Of course on Tuesday, we weren't all opposed to  4 that but it was based on the -- what happened.  5 THE COURT:  I understand that.  I think one's entitled to change  6 his mind on a matter of this kind because of the fact  7 that we are going to different locations each day.  I  8 am sure your logistical problems can be rearranged to  9 that so I am certainly not going to say that the  10 Province can't have one out of four seats on the  11 second aircraft.  12 MR. PLANT:  There is another matter which my assistant, Mr.  13 Goldie, would like to speak to.  14 THE COURT:  Yes.  15 MR. GOLDIE:  My lord, yesterday, your lordship may recall that  16 we were advised that Mr. Sterritt would be the next  17 witness.  That gave rise to some difficulties which I  18 will outline in a minute.  I spoke to my friend, Mr.  19 Rush, to whom I was directed about deferring Mr.  20 Sterritt until the week of the 20th; that is to say,  21 one week.  I indicated to him the reasons why I made  22 that request and, a few minutes ago, he advised me  23 that his instructions were such that he could not  24 agree to that.  I understand Mr. Sterritt to be the  25 last witness to be called, the last live witness to be  26 called, before the summer break, and that he is being  27 called as a lay witness.  Heretofore of course we had  28 understood Mr. Sterritt was going to be tendered as an  29 expert and indeed we had a summary of his evidence of  30 his opinion delivered to us last year, and our  31 preparations have been in respect of the summary he  32 has given us.  33 I do not know at this point what he is going to  34 be giving evidence on as a lay witness.  I haven't  35 seen summary and my friend, Mr. Rush, tells me that he  36 will touch on some things which he has dealt with in  37 his opinion but he will of course be tendered as a lay  38 witness and not be qualified as an expert.  The reason  39 why I ask that it be deferred was that next week I  40 will be in the Supreme Court of Canada four days out  41 of five.  42 THE COURT:  Next week or the week after?  43 MR. GOLDIE:  I mean next week, the week that would normally be  44 devoted to preparation.  The week after that, I am  45 presently engaged to attend at a trial but not in a  46 major capacity and I can take care of that particular  47 problem, although my retainer was -- I have yet to 6933  Discussion  1 discuss that with the client.  There is therefore a  2 case of involuntary overbooking primarily resulting  3 from the fact that the dates in the Supreme Court of  4 Canada are fixed.  My understanding of my friend's  5 inability to defer Mr. Sterritt a week is that he  6 wants to be assured that his -- he will have completed  7 his evidence before the trial is adjourned for the  8 s umme r.  9 It is my understanding that your lordship was  10 good enough to say that in order to complete a witness  11 you would be prepared to sit for whatever time was  12 necessary in the week of the 4th of July.  I asked my  13 friend, Mr. Rush, how long he anticipated Mr.  14 Sterritt's examination in chief to be and he said  15 about a week.  On that basis, I can say to the court  16 that I would certainly be completed my  17 cross-examination prior to the end of June and I think  18 well before the end of June.  I am not aware of the  19 reasons why my friend is unable to agree with the  20 suggestion I have made other than to say that his  21 instructions did not permit him.  22 With respect to the week of the 13th, it was our  23 understanding up until yesterday that if Mr. Williams  24 was indeed the last lay witness that we would start on  25 the question of the commission evidence and indeed we  26 understood that the first witness who would be called  27 in that respect would be Mr. Stanley Williams and, if  28 that was done, that would be perfectly all right as  29 far as we are concerned.  I would ask my friends -- I  30 understand Mr. Grant is prepared to speak to this.  I  31 would ask my friends to reconsider the position that  32 they have taken and, if they are unable to do so, then  33 I would ask that the cross-examination be deferred one  34 week.  35 THE COURT:  Mr. Grant or, Mr. Macaulay, I am sorry, do you have  36 any position on this?  37 MR. MACAULAY:  I have no submission to make other than Mr.  38 Goldie's proposal seems eminently reasonable.   Could  39 I add we are at a disadvantage in the sense that we  40 haven't got a subject either.  41 MR. GRANT:  Before I respond, and I am prepared to deal with it,  42 I just wanted to clarify with Mr. Goldie one of the  43 points of his last comment was, if unable to -- that  44 we defer cross-examination for one week.  I don't know  45 whether he means that he proposes cross-examination if  46 Mr. Sterritt is not finished -- is finished on direct  47 on the week of the 13th if he proposes the 6934  Discussion  1 cross-examination not start until the 20th?  2 MR. GOLDIE:  No, the week after that.  3 MR. GRANT:  The 27th.  I just want to be clear on that, my lord.  4 MR. GOLDIE:  When I say cross-examination, that would be my  5 cross-examination.  6 MR. GRANT:  Yes, I understood.  My lord, Mr. Sterritt was  7 ordered to be examined for discovery generally on  8 behalf of all plaintiffs, and I believe my  9 recollection is that he was -- his discovery was  10 approximately eight days.  As Mr. Goldie has advised,  11 there was a summary report given of Mr. Sterritt's  12 evidence with respect to opinion evidence one year ago  13 and components of that report as well as areas he  14 covered on his discovery are going to be -- that is  15 going to be canvassed in his evidence.  Now, my lord,  16 the difficulty from the plaintiff's perspective, and  17 it is not obstreperousness or inconvenience, but the  18 difficulty is this:  That the plaintiffs do not have  19 the luxury of these adjournments.  We are on a very  20 tight schedule.  Our clients are on a tight schedule.  21 There is an office establishment here that was set up  22 specially for this trial.  A deferral of one week is  23 not a deferral -- is a high cost for the plaintiffs  24 and it is not costs of course that anyone could  25 normally say, well, tax these costs or that kind of  26 thing.  It is the ongoing costs of operating this.  27 The schedule is based on your schedule of ending at  28 the end of June or possibly that first week of July.  29 If Mr. Sterritt will be finished long before the end  30 of June, we do have another witness and we will  31 proceed to the next witness.  We are endeavouring to  32 get through our witnesses as quickly and as  33 expeditiously as we can.  With all due respect to my  34 learned friend, I submit, my lord, that this question  35 of inconvenience at this stage is a little difficult  36 because they have those discoveries which I believe  37 ended before the trial started over a year ago, and  38 they have -- and of course they have other counsel.  39 Now, we have had to make these kinds of alterations  40 ourselves where different counsel has taken on  41 different responsibility.  If Mr. Goldie wishes to do  42 the cross-examination himself, given the schedule that  43 Mr. Rush has indicated to him and I understand there  44 is no difficulty that cross-examination will not start  45 in the week of the 13th, if Mr. Goldie can get out of  46 the other trial, that is, that trial in the week of  47 the 13th, he would have the option of either preparing 6935  Discussion  1 or -- or the option of being present.  It's very, very  2 difficult and it's very difficult for us at this stage  3 to adjourn a week and it's very, very costly.  4 THE COURT:  He is not suggesting we adjourn; we will stay and do  5 something else.  We will do the commission.  6 MR. GRANT:  Well, yes, but the logistics of doing the commission  7 do not need the extensive support systems that we do  8 with the live witness.  This is the one reason we wish  9 to proceed with the live witnesses.  That there was a  10 thought last week when there was thought that possibly  11 Mr. Muldoe would be finished early before Mr. Williams  12 started and you may recall Mr. Rush referred to this,  13 that there would be some commission evidence so we  14 wouldn't waste a court day, but that's not what we  15 anticipate.  We would like to complete these live  16 witnesses, and the costs of having these people down  17 here and back and forth is a cost that we don't -- our  18 clients are not in the position of just turning on  19 that tap of just saying, well, cost is no object.  And  20 it's very, very problematic for our clients to have  21 this adjournment and it is very costly and it is not  22 something that can be dealt with by tax -- by having  23 the defendants just pay our taxable costs.  It is  24 those kinds of logistical things that are a concern.  25 If we did not have those problems, then we would  26 be in a better position vis-a-vis this issue.  But the  27 defendants have -- you know, of course they have --  28 all parties have different counsel and we are not  29 trying to deprive Mr. Goldie of the position that he  30 should be able to elect who cross-examines, and I have  31 been instructed that if Mr. Sterritt's examination in  32 chief completed before the end of that week and Mr.  33 Goldie was unavailable the week of the 13th to  34 commence his cross that we would have no opposition to  35 adjourning over for his cross-examination at the  36 beginning of the -- on June 20th.  We don't anticipate  37 that it will happen as Mr. Rush has indicated he  38 anticipates his direct examination to be one week.  39 But we have daily transcripts, we have all of these  40 things, and they have eight volumes of discovery  41 evidence.  There is not -- I must say -- I dare say  42 there is not a witness which the defence has not had  43 fuller disclosure than Mr. Sterritt in terms of  44 material.  We have -- 12 volumes of his notebooks have  45 been disclosed to the defendant a year and a half ago,  46 some of which you have had the pleasure to look at or  47 filed with you.  And I say, my lord, it is very, very 6936  Discussion  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  MR.  MR.  MR.  MR. GRANT  MR.  THE  difficult and problematic for us to have this  adjournment at this time.  I mean, the costs of this  trial being maintained in Vancouver to our clients is  a high cost and we are trying our best to keep it on  track.  We don't want to be in a situation as that you  recall last fall where we were coming to you seeking  adjournments on financial need, and that's effectively  ultimately what will happen if this kind of thing  happens, and I say that the defendants can certainly  reorganize themselves to the extent and Mr. Goldie  still would have the opportunity of cross-examination  of Mr. Sterritt, I mean, so the real problem of  whether he can cross-examine him or not, he is clear  on the week of the 20th.  GOLDIE:  I am not clear, my lord.  I said that I believe I  can make arrangements but I have not spoken to my  client.  GRANT:  Oh, see, I thought that was the week of the 13th.  GOLDIE:  The week of the 13th I am in the Supreme Court of  Canada, and I have no choice with respect to that.  I see.  I am sorry.  When Mr. Goldie said next week,  I thought he meant the week -- his preparation week  was my note.  So in any event, I have no difficulty  with adjourning any cross-examination of Mr. Sterritt  over to the 20th but, my lord, we are just -- we are  in a difficult situation and we want to proceed.  We  want to use up all the time that we can and get these  witnesses through.  Well, it doesn't seem to me there is any problem  getting the witnesses through on the statements that  have been made.  The estimates are subject to Mr.  Macaulay's cross-examination of Mr. Sterritt which we  haven't heard from Mr. Macaulay about, we have an  estimate for -- of Mr. Sterritt of two weeks.  And then we have another witness.  And I am prepared to sit another week if necessary  to finish.  So it doesn't seem to me there is a  problem with that.  Well, it's a loss of a week of live witnesses  effectively what it is, my lord, before the summer  recess.  If the adjournment is granted for the one  week with respect to the live witnesses and Mr.  Sterritt is completed within that time, then in  September, the witness that would be coming after him  would be there.  I mean, I submit, my lord, that the  defendants have -- you know, they have -- they are in  a much better situation to deal with this matter  THE COURT  GRANT  COURT  MR. GRANT 6937  Discussion  1 through their resources than the plaintiffs are, and I  2 ask that we be allowed to proceed and get on with this  3 witness's evidence.  4 THE COURT:  Well, this isn't the sort of thing I should be asked  5 to deal with.  6 MR. GOLDIE:  I was going to say, my lord, there is no desire on  7 my part to press the plaintiffs if they feel they  8 cannot accommodate me.  That's -- I will have to make  9 whatever submission I can make at the time when the  10 cross-examination comes up, but it may be that I will  11 simply have to say that I have been unable to prepare  12 and ask for an adjournment on that basis, and that is  13 of course a well known and well recognized reason.  I  14 had understood, and I have received no information to  15 the contrary, that up until yesterday the proposal was  16 to use the time available to put in the commission  17 evidence, and that was the basis of my request today.  18 If commission evidence is not to be dealt with, then I  19 would ask my friend to advise us when it is to be  20 dealt with and I would ask my friend to let us know  21 who the other lay witnesses are so we can make the  22 necessary preparations to keep things going.  23 THE COURT:  Well, I find this a most distasteful matter.  I  24 don't think I should have to deal with it at all.  I  25 think it creates the worst atmosphere possible for the  26 trial.  I think I have to say with some regret that I  27 don't think Mr. Goldie's commitment, if such it is  28 with respect to another trial, is a matter that I can  29 give any weight to.  I cannot treat the need to be in  30 the Supreme Court of Canada the same way as something  31 that no one can do anything about.  If I am driven do  32 it, I think with respect if I am it is unfortunate and  33 I hope counsel will reconsider the position, and I  34 think we will have to proceed with the evidence of Mr.  35 Sterritt; although, I say I find this almost makes me  36 ill to have to say this.  We will have to proceed with  37 it on the 13th.  I just am so troubled that this would  38 happen.  This is a profession, this isn't a business  39 we are supposed to be in.  We will proceed with the  40 evidence of Mr. Sterritt on the 13th and, if it is  41 necessary to adjourn the cross-examination, we will  42 then have to do so.  I hope that the matter might be  43 reconsidered.  4 4    MR. MACAULAY:  My lord, I have another matter if I could  45 address?  4 6    THE COURT:  Yes.  47    MR. MACAULAY:  Two or three days ago some reference was made to 693?  Discussion  1 the burning of nets.  I believe I am not --  2 THE COURT:  Not burning as badly as I am, Mr. Macaulay.  I am  3 sorry, I didn't intend that at you.  4 MR. MACAULAY:  I thought I should deal with this.  5 THE COURT:  Yes.  6 MR. MACAULAY:  Perhaps the evidence was hearsay evidence and not  7 admissible, but there is some question of burning of  8 fishing nets, and Mr. Grant in response to your  9 lordship's question told him that -- advised us that  10 there was no right to do so, although, there was some  11 question of forfeiture.  I have looked at the Act and  12 Regulations, I am not as familiar with that Act and  13 Regulations as Mr. Grant is or Mr. Rush, and I find  14 that there is provision for forfeiture of unmarked  15 nets.  There is also provision for relief of  16 forfeiture if the owner of the net comes forward  17 within 30 days.  These are nets that are not  18 identified.  The fishing regulations require certain  19 regulations of nets.  If the owner comes forward  20 within 30 days, claims that he is the owner of a net  21 and qualifies in certain respects, then the nets are  22 returned.  Otherwise, they are forfeited to the crown  23 and the statute provides that they are to be disposed  24 of as the Minister directs.  I wanted to tell your  25 lordship that.  If there is any evidence of the  26 disposal of nets, there is a net context, unmarked,  27 unclaimed nets.  28 THE COURT:  And presumably after 30 days.  29 MR. MACAULAY:  And after 30 days.  30 THE COURT:  Presumably, yes.  31 MR. MACAULAY:  There has been some local litigation up there  32 about all of that.  Mr. Grant is much more familiar  33 with that than I am with the results of the local  34 litigation.  35 THE COURT:  All right, thank you.  We will adjourn then until a  36 week Monday and I will look forward to seeing counsel  37 in Smithers.  Thank you.  38 THE REGISTRAR:  Order in court.  Court will adjourn.  39  40 (PROCEEDINGS ADJOURNED TO JUNE 13, 1988)  41  42 I hereby certify the foregoing to be  43 a true and accurate transcript of the  44 proceedings herein, transcribed to the  45 best of my skill and ability.  46  47 6939  Discussion  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  4 TANNIS DEFOE, Official Reporter  5 United Reporting Service Ltd.  6  7


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