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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1988-09-12] British Columbia. Supreme Court Sep 12, 1988

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 7590  Proceedings  1 SEPTEMBER 12, 1988  2 VANCOUVER, B.C.  3 THE REGISTRAR: Order in court.  In the Supreme Court of British  4 Columbia this Monday, September 12, 1988, calling  5 Delgamuukw versus Her Majesty the Queen, My Lord.  6 THE COURT:  Goldie?  7 MR. GOLDIE:  My Lord, before my friend resumes his examination  8 of the witness may I say, and I think I speak for all  9 of my colleagues, that while we felicitate Your  10 Lordship on your translation to another place, we view  11 with happiness the fact that you've decided to tarry a  12 while longer with us.  13 THE COURT:  Thank you, Mr. Goldie.  I appreciate that very much.  14 I can't say how much I've missed you all for the two  15 months.  I have no one to blame but myself for all  16 this.  There was a time when a judge, upon being  17 translated, just walked out and left everyone where he  18 was, usually for trials to start over again, but I had  19 that changed about three years ago and that leads to  20 the happy result that I'm going to be staying with you  21 for as long as I may be required.  22 MR. MACAULAY: May I say, My Lord, that my colleagues and I wish  23 to express our pleasure at Your Lordship's appointment  24 to the other place, as my learned friend has said.  We  25 won't miss the Monday morning list.  26 THE COURT:  Nor shall I, Mr. Macaulay.  27 MR. MACAULAY:  I take it that things will remain much the same  28 until the conclusion of this trial.  29 THE COURT:  Yes.  Thank you, Mr. Macaulay.  And Chief Justice  30 McLachlin has demonstrated her administrative skills  31 already.  Today's list is fully covered for the first  32 Monday in six months, so she's to be congratulated.  33 Mr. Rush?  34 MR. RUSH: My Lord, I too would like to commend Your Lordship on  35 your appointment as the Chief Justice of the Court of  36 Appeal.  It's not often that we see the departure of  37 one chief justice and the arrival of another one in  38 the same person.  I think it's fair to say that the  39 burdens of your new office are considerable and we  40 look forward to your bringing to it the same energy,  41 good humour, and characteristic practicality as you  42 have brought to the courtrooms in the trial division.  43 I would like to comment on something that Mr.  44 Macaulay just said, however, that I see that one  45 regrettable effect of your appointment will be the end  46 of the Monday morning ritual.  And I for one shall  47 miss the interesting and inventive arguments of 7591  Proceedings  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.  counsel trying to justify priority on your list, but I  shall equally miss your admonishments to counsel, as  in one case I shan't forget and that is where counsel  suggested that he needed an adjournment -- or he  resisted an adjournment on the basis that he had to  pay some $5,000 to a witness who was coming to  Florida -- from Florida, rather, and you told him in  no uncertain terms that he shouldn't pay that $5,000.  I understand that he got on the list notwithstanding.  I wish you well in your new job and I think my  colleagues would like to address you as well on that.  COURT:  Thank you, Mr. Rush.  Mr. Grant?  GRANT: Yes, I heard the news with pleasure, My Lord, and I  couldn't help but thinking that it somehow appropriate  that the new chief justice of the province was the  same justice who I recall vividly tramping through the  bushes of the north and I think that probably if you  had received the appointment before that viewing, my  memory would have been better and we would have been  sure to bring bug dope for some of the harder places  we went to.  There's a bit of Begbie in all of us I think.  Yes.  My Lord, I would like to proceed to speak to  the issue -- I'm sorry, yes, my colleague Mr.  Professor Jackson would like to speak to you.  Thank you.  Jackson?  JACKSON: My Lord, I rise on behalf of Dean Burns and all my  colleagues at the law school and on my own behalf to  congratulate Your Lordship on your appointment.  I  think it's true to say that during your tenure as  Chief Justice of the Trial Division the links between  the law school and the judiciary have never been  stronger, and I'm confident that with your appointment  as the Chief Justice of the Court of Appeal, and my  former colleague Madam Justice McLachin's appointment  as Chief Justice of the Trial Division, the links  between the judiciary and the academy will continue to  be strengthened in the search for our mutual endeavour  for a just society.  THE COURT:  Thank you, Mr. Jackson.  I will just throw this  thought out to you all for your consideration, not  necessarily to be decided now, but it has been  suggested to me that the first order I should make as  chief justice is to dismiss any appeal that may be  brought in this case for the reasons which I will give  in due course and let you get on with other important  things and save you that important step.  I'll be glad  THE  MR.  THE  MR.  COURT  GRANT  COURT: 7592  Submission by Mr. Grant  1 to hear from counsel on that in due course.  2 Mr. Grant?  3 MR. GRANT:  Well, given all of those comments and given that we  4 are now also moving into the fall schedule, I wish to  5 advise the court, and I have corresponded with Mr.  6 Plant, in response to a suggestion he made last week  7 of asking for directions on these matters regarding  8 the scheduling of the remaining witnesses.  I wish to  9 advise the court that after Mr. Sterritt the  10 plaintiffs intend to call expert witnesses.  11 We have made an effort to complete the scheduling  12 of the expert witnesses and counsel, and of course  13 many of these persons are from out of the area.  They  14 have other commitments and so we, rather than -- on  15 the assumption of the three weeks on and one week off  16 schedule, subject to what I will say in due course, we  17 would like to schedule it as a grouping of witnesses  18 for each session.  And if those witnesses are  19 completed earlier than that session, than that  20 three-week session, then we would then adjourn to the  21 next session.  22 This is the only way, My Lord, that we see we can  23 give some accuracy and precision to each of these  24 witnesses right now as to when they will be called.  25 And there's been some latitude left for  26 cross-examination.  I have estimated in correspondence  27 to my friends in response to Mr. Plant's letter as to  28 the length of direct examination, and of course we  29 can't control the length of cross-examination and  30 would not endeavour to do so, but what we hope is that  31 with this scheduling that we would be able to -- there  32 would be ample time for cross-examination of all these  33 witnesses by both defendants and we could have  34 precision with the next grouping.  35 And I'd like to suggest this is how we propose the  36 first three-week scheduling, September 12th, and  37 following.  As you know, of course, Mr. Sterritt is  38 presently on the stand, and we anticipate that his  39 examination and cross-examination will take at least  40 two weeks and, My Lord, I hope this doesn't bear on  41 your response, but the cup I just poured water into  42 had a hole in the bottom.  I hope that's not a bad  43 omen for this sitting.  44 THE COURT:  I'll restrain myself.  45 MR. GRANT:  Mr. Sterritt would be a minimum of two weeks.  46 Following on him, we would call Allan Gottesfeld, one  47 of the plaintiffs' experts. 7593  Submission 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  And I may pause there to say, My Lord, that at the  time of the adjournment we had tendered to the others,  the defendants, pursuant to Section 10, a series of  reports which we hoped to file.  They responded that  they wished to cross-examine each and every one of the  witnesses and, given that, that we -- whose reports we  had tendered and, given that, we saw no point in  proceeding under Section 10.  If that's the case, we  see that there is no extensive extension of trial time  by us leading the evidence we wish to lead.  In fact,  in some cases that may abbreviate it.  Some of the  reports are longer than are necessary probably for the  purposes of Your Lordship.  In any event, then, so Allan Gottesfeld would be  called and then after him would be Rolf Matthews.  THE COURT:  Did you anticipate his evidence could be completed  in a week?  MR. GRANT:  Allan Gottesfeld?  THE COURT:  Yes.  MR. GRANT:  In a couple of days.  And Rolf Matthews would be one  to two days.  THE COURT:  Is he an expert or?  MR. GRANT:  Yes, these are all expert witnesses at this point.  THE COURT:  All right.  MR. GRANT:  Matthews is M-a-t-t-h-e-w-s.  THE COURT:  Yes.  MR. GRANT:  Upon the completion of Mr. Matthews' evidence,  either that would be the end of the three-week session  or else we would adjourn if it was -- we anticipate it  may be one or two days short, but it may be right up  to the end of that time.  We would then commence on  October 10th, the next three-week session, with these  witnesses:  Mr. Rod Chilton, C-h-i-1-t-o-n, which  would be one day; Mr. D. Hatler, two days; Sybil  Hauessler, H-a-u-e-s-s-1-e-r, two days; Sylvia  Albright, four days; Jim Kari, four days.  And then we have a difficulty because one of the  witnesses, Professor Rigsby, is in Australia and we  would want to endeavour to schedule him and, in fact,  if necessary, if our scheduling was off, to stand down  whichever witness was here when he came and get his  evidence in and out.  THE COURT:  What's his name again?  MR. GRANT:  Professor Bruce Rigsby, R-i-g-s-b-y, and we are  trying to get some tentative commitments -- tentative  scheduling from him and if he was available he would  be the last witness of that session.  If he was 7594  Submission 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 COURT  MR. GRANT  THE COURT  MR. GRANT  unavailable, we would either adjourn that session over  or possibly call Heather Harris.  In any event, that would complete that three-week  session.  We then would anticipate on the November 7th  schedule to call Dr. Richard Daly, and we anticipate  he would be two weeks, ten days.  Upon the completion  of Dr. Daly's evidence, we have other outstanding  matters which, in an informal discussion at which Mr.  Mackenzie was present for the province, and I cannot  recall if Mr. Goldie was present so I'll let him speak  to it, and Mr. Macaulay was present in Smithers, the  three of us tentatively agreed that it would make  sense that the cross-examination of Gitksan and  Wet'suwet'en witnesses should take place outside of  the courtroom as it has so far.  The difficulty with  this is that there are 17 -- there was 17 Gitksan  witnesses left to be cross-examined.  The defendants  have indicated --  This is on their affidavits?  On the territorial affidavits.  Yes.  They indicated after delivery of the affidavits that  they intended to cross-examine all of the Gitksan  witnesses.  This morning I have delivered and, as part  of the procedural matters, will file the Wet'suwet'en  affidavits, and although there are 22 affidavits  filed, 16 of them are new so there would be 16  witnesses on the Wet'suwet'en side.  We scheduled in a one week period for ten  witnesses to be cross-examined and all counsel made  every effort to keep to that schedule, but in fact  only five were cross-examined.  So at that rate we  have, if we do them sequentially, we have seven weeks  of cross-examination left, and that is also on the  assumption that both the defendants will want to  cross-examine all the Wet'suwet'en witnesses and also  on the assumption that they have not now changed their  position with respect to the remaining Gitksan  witnesses after their one week experience with it, and  I will let them speak to that.  So, on that assumption, what we can do is we can  double -- we cannot double Gitksan witnesses'  cross-examination at the same time because of the  support people we need, but we can do Gitksan  witnesses and Wet'suwet'en witnesses at the same time,  but we will need some preparation time with these  witnesses in advance. 7595  Submission by Mr. Grant  Submission by Mr. Goldie  1 And we would propose that after Dr. Daly's  2 evidence we would adjourn the trial over into January  3 and from the week of November 29th through to December  4 22nd or thereabouts, and the week of January 3rd to  5 the 6th of '89, cross-examinations of all remaining  6 Gitksan and Wet'suwet'en witnesses would be completed.  7 The plaintiffs wish -- we, as counsel for the  8 plaintiffs, wish these cross-examinations to be  9 completed, of course, prior to the closing of the  10 plaintiffs' case and prior to calling the last of the  11 plaintiffs' witnesses.  And unless -- and this would  12 deal with the fall schedule.  As counsel for the  13 plaintiffs, I don't think there is any point in, and I  14 think all counsel agree on this, in having the  15 cross-examinations take place in court.  It's very  16 hard on the witnesses to have to commute.  It's an  17 enormous amount of court time which you could probably  18 expedite by your review of the transcripts of those  19 witnesses and of course, as I say, that scheduling is  20 somewhat subject to the completion or to the position  21 of the defendants on the 16 Wet'suwet'en affidavits,  22 but I'm assuming that we can do some overlap and that  23 we'll take five weeks to complete all of those.  24 So that is the plaintiffs' proposal for scheduling  25 for the fall session.  2 6    THE COURT:  All right.  Thank you.  Goldie?  27 MR. GOLDIE:  My Lord, as Mr. Grant has said, Mr. Plant last week  28 pointed out that we did not have any scheduling and  2 9 that we were concerned about who would follow Mr.  30 Sterritt.  The last advice we had was that another lay  31 witness would be called.  32 Mr. Grant in his letter of September 9th has  33 advised us that Mr. Sterritt is the last lay  34 witness -- well, actually he's the first of the expert  35 witnesses, and gave us a schedule which he's now  36 amended somewhat this morning.  37 I should say that the question of cross-examining  38 the expert witnesses and the decision to call those  39 witnesses under Section 10 rather than Section 11  40 arose out of a suggestion that was made to my friend,  41 Mr. Rush, that objections with respect to the form and  42 admissibility of certain of the reports which we  43 understood would be tendered as reports be argued  44 during the vacation period.  My friend's response to  45 that -- and the nature of the objections were laid  46 out.  My friend's response to that was to say that  47 instead of tendering the reports, all of these would 7596  Submission by Mr. Goldie  1 be called.  2 Now, My Lord, not all of the witnesses that my  3 friend Mr. Grant has spoken to this morning were the  4 subject matter of that discussion between Mr. Rush and  5 Mr. Wilms.  Dr. Bruce Rigsby was not a subject matter  6 of discussion and we have made no suggestions with  7 respect to whether he would be called as a witness for  8 cross-examination, so that it seems to me that Dr.  9 Rigsby's position is still at large so far as the  10 necessity of calling him is concerned.  11 The question of, I'll say, "batching" the  12 witnesses so at once they're finished, is one that I  13 would suggest be reconsidered.  As far as I'm aware,  14 all of the witnesses that my friend referred to, with  15 the exception of Dr. Rigsby, are available in British  16 Columbia, and I would hope that as a three-week period  17 progressed and some better sense of timing was gained  18 during that week, that other witnesses could be  19 scheduled.  20 With respect to the question of the  21 cross-examination on the affidavits, I'm advised there  22 was no agreement that the cross-examination should  23 take place outside the courtroom.  I think it fair to  24 say that my friend Mr. Grant urged that, but there was  25 no agreement and the reason why there was no agreement  26 is that the conduct of the cross-examinations has  27 raised some difficulties.  It is inevitable that there  28 is sometimes an argument over a re-examination or  29 counsel's interjection in the course of  30 cross-examination, and if we are to follow my friend's  31 suggestion, I anticipate I would be either requiring  32 or requesting that certain witnesses be cross-examined  33 before the court or renewing my application that a  34 commissioner be appointed.  35 I can make no comment with respect to the  36 Wet'suwet'en affidavits.  As Mr. Grant has pointed  37 out, some 16 of those are new to us and we'll have to  38 just examine them as they come.  My concern is that we  39 utilize the time in court to the maximum and that is  40 why I express a reservation with respect to batching  41 the matters in the three-week packages that my friend  42 has suggested.  43 THE COURT:  But it's only two, three-week segments.  44 MR. GOLDIE:  Yes, but there are other experts to come.  45 THE COURT:  Oh, yes.  46 MR. GOLDIE:  And so, as I say, I express a reservation about  47 that.  And with respect to the cross-examination of 7597  Submission by Mr. Macaulay  1 the Wet'suwet'en and Gitksan witnesses, I anticipate,  2 as I say, that there will be either examination before  3 Your Lordship or an application for a commissioner  4 with respect to some, if not all.  5 THE COURT:  Thank you.  Mr. Macaulay?  6 MR. MACAULAY: My Lord, may I start with the last matter first,  7 that is, the examination of the deponents of  8 territorial affidavits.  While it's always desirable  9 to have a witness give viva voce evidence, that's the  10 idea of it, the dimensions of this case made other  11 solutions necessary.  I did agree with my friend Mr.  12 Grant in Smithers during a discussion we had about  13 that that these examinations should continue in  14 Smithers and that they should not occupy the time of  15 the court because, from my point of view, it would  16 unnecessarily prolong the trial which has already gone  17 on a very long time.  That was before any suggestion  18 was made that we adjourn the trial and go back to  19 Smithers and carry on these cross-examinations.  20 If it were possible, it would be desirable to have  21 those cross-examinations go on as we are dealing with  22 the expert witnesses too and do the best we can.  I  23 realize that the plaintiffs may be -- resources may be  24 stretched a bit, but the alternative is to add another  25 two months or more to the length of this trial and it  26 will never end or, rather, it won't end for a very  27 long time.  28 Your Lordship should know that many of the expert  29 witnesses whose summaries have been provided for us  30 don't appear on the list that was mentioned to you  31 today.  In fact, the most protracted  32 cross-examinations will probably take place, most of  33 them, in the case of witnesses who -- expert  34 witnesses, whose names don't appear on this present  35 list, most of them, most of the present ones,  36 particularly Gottesfeld, Matthews, Hatler, Chilton,  37 and Hauessler are what you call scientific witnesses  38 and I don't expect there to be a great deal of  39 cross-examination for any of them.  And we don't  40 require that Mr. Rigsby be brought from Australia for  41 cross-examination, as far as the Attorney-General of  42 Canada is concerned.  43 THE COURT:  He's in Australia is he?  4 4    MR. MACAULAY:   Yes.  45    THE COURT:  It's not a question that he's there and is going to  4 6 come back anyway?  47    MR. GRANT: He's lived there for a number of years. 759?  Submission by Mr. Macaulay  1 MR. MACAULAY:  I understand he lives there.  2 THE COURT:  Yes.  All right.  3 MR. MACAULAY:  So that's not a real problem, but the question of  4 the cross-examination of the affidavit is a problem  5 and it requires a solution that will avoid adding a  6 couple of more months to the trial.  We are prepared  7 to go to Smithers and also have counsel attend at the  8 trial.  I expect the province is.  I haven't asked  9 about that.  But the plaintiffs will be dealing with  10 expert witnesses and the management of those witnesses  11 ought to be a great deal easier than perhaps the  12 management of some of the lay witnesses was.  Surely  13 one counsel can lead that evidence, a lot of which  14 bears a remarkable similarity to the other.  15 THE COURT:  Well, it isn't a question of leading the evidence.  16 It isn't a question of leading the territorial  17 witnesses.  They would really be cross-examined.  18 MR. MACAULAY:  Yes.  19 THE COURT:  It would be what we used to call a handhold from the  20 plaintiffs' point of view.  21 MR. MACAULAY:  Yes.  22 THE COURT:  They would be —  23 MR. MACAULAY:  Yes.  The plaintiffs say they have to prepare  24 those witnesses and it will take time and effort and  25 they come from out of town into Smithers.  26 THE COURT:  Oh, I agree.  I have no doubt about the preparation,  27 but the actual conduct of the cross-examination is, as  28 counsel used to call it, a handhold.  29 MR. MACAULAY:  Yes, essentially, there's a certain amount of  30 re-examination and some of the disputes that have  31 arisen in the last five --  32 THE COURT:  Yes.  33 MR. MACAULAY:  — really had to do with the question of  34 re-examination.  It would not be difficult for Your  35 Lordship to appoint a commissioner.  I should mention  36 these witnesses are not being video taped.  There  37 isn't that additional cumbersome preparation and  38 apparatus and so on.  I don't see why we couldn't do  39 two or three a week for the next few weeks and that  40 would cut down a lot of the trial time and I think  41 that should be carefully considered.  42 The appointment -- I support Mr. Goldie's  43 submission to the commissioner that might be appointed  44 to deal with objections and the like that come up from  45 time to time.  It can only be expected that they will  46 come up.  It's probably an expeditious way of dealing  47 with it so, My Lord, I propose that Your Lordship give 7599  Submission by Mr. Macaulay  Submission by Mr. Grant  1 directions that arrangements be made for the  2 cross-examination of the deponents during the  3 sittings.  4 There will be some commission evidence, I hope  5 we've agreed that, during the week of November 1st,  6 the first week of November.  We will be taking  7 commission evidence of an elderly former Indian agent  8 in Hazelton, a Mr. Boys.  And that during that week,  9 although even then we're prepared to carry on with  10 cross-examinations of -- at the same time if it can  11 be, and we can save a lot of trial time if we do that  12 and put them together.  13 THE COURT:  Thank you.  Mr. Grant?  14 MR. GRANT:  Well, regarding the grouping of these experts, My  15 Lord, as I'm sure you would appreciate, is that yes,  16 some of these people, and there's others besides  17 Professor Rigsby who are out of the province, but most  18 of them are within the province or they're within an  19 airfare of Vancouver wherever they are, obviously, but  20 these people are professors, they have contracts, they  21 have other commitments.  They are all insisting that  22 we have give them some precision.  We do not want a  23 situation where we're paying expert witnesses to sit  24 out in the hallway or to sit here in the courtroom and  25 waiting an extra two or three days.  26 Now, that to a certain degree will happen in any  27 event, but we're trying to minimize that by giving  28 them very accurate -- and they're all requesting very  29 accurate statements.  Some of these witnesses that we  30 had hoped to call earlier have already made earlier  31 commitments and that's why we need precision with the  32 grouping of the expert witnesses and we must have that  33 and then immediately all counsel for the plaintiffs  34 can contact the experts that they're leading, give  35 them that precise schedule, and work from it.  With  36 respect to the -- and that certainty, My Lord, I must  37 say we really need as soon as we can because we really  38 have to get them tied down then and then we can tie  39 each of them down.  40 I appreciate Mr. Macaulay's comments, although I  41 didn't get the clarity from Mr. Goldie with respect to  42 Dr. Rigsby, and that if the province takes the same  43 position as the federal government, and I think Mr.  44 Goldie said his position is still at large, then if we  45 can get some clarity from the province very quickly on  46 that, then that may rectify one of those problems,  47 save the calling of a witness, save court time, and we 7600  Submission by Mr. Grant  1 would put another expert in that space.  2 Now, with respect to the cross-examination, My  3 Lord, as you can appreciate, many of the witnesses  4 that are being cross-examined -- well, firstly, the  5 Wet'suwet'en affidavits are of the same nature as the  6 Gitksan, so it's really important for us to know if  7 all of these witnesses are going to be cross-examined  8 by both defendants or either of the defendants.  These  9 witnesses, many of them have to be translated, they  10 are elders, they are people that are knowledgeable,  11 the last of their generation, and this kind of thing.  12 Many of the Wet'suwet'en witnesses do not live close  13 to Smithers.  They live in other far removed areas of  14 northern B.C..  They live in the eastern part and  15 other parts and, quite simply, My Lord, we cannot.  16 And we debated this.  We were going to consider this  17 as part of our proposal, what Mr. Macaulay suggests of  18 having them going in tandem with the court.  We cannot  19 do it.  We cannot prepare -- we do not have the  20 resources to prepare the expert witnesses on the  21 schedule that we have, each of the counsel for the  22 plaintiffs, and to prepare these witnesses.  23 And it takes a lot longer, as you can appreciate,  24 to prepare for cross-examination.  We requested the  25 defendants to give us a subject matter of the areas  26 they would cross-examine.  We requested it on numerous  27 occasions and they refused; therefore, we have to  28 prepare each witness in all areas and it's very very  29 time comsuming.  And the cross-examination, as they  30 are entitled to, of course, goes into many areas and  31 is very broad cross-examination, many areas which are  32 the subject matter of the case, and I -- and quite  33 simply, My Lord, we're trying to work it out so that  34 we can complete the experts, get through the expert  35 witnesses, and also complete these other witnesses.  36 But we must complete them prior to the completion of  37 the plaintiffs' case.  38 With respect to the appointment of a commissioner  39 or with respect to the calling of the evidence in  40 court, I say that the evidence of these witnesses --  41 in some ways we would like you to see these witnesses  42 but the timing -- the time is too long in our view and  43 that's why we don't suggest it in court.  Regarding  44 the concerns we have, I think the general areas of  45 problems have been raised with the first five  46 witnesses and, of course, objections are raised to  47 re-direct examination in certain areas, and I think 7601  Submission by Mr. Grant  Ruling by the Court  1 upon a review of those transcripts and possibly  2 scheduling a day in these next two weeks where we  3 argue out any objections on those, that we could get  4 guidance from Your Lordship on those, and that would  5 accommodate the -- then you would give sort of  6 boundaries or parameters which could be guide-lines  7 for all counsel as the examinations continue.  8 But I am very concerned that my friends tell us if  9 they intend to cross-examine all the remaining Gitksan  10 witnesses and the Wet'suwet'en witnesses so that we  11 can build that into the schedule as well.  We must  12 have translators and others available for that and we  13 have to work out our own schedule to do that, so the  14 preparation of these witnesses for cross-examination  15 is taking longer than was anticipated, but that's --  16 if the defendants are not going to give us the areas,  17 then we have no choice.  We have to deal with it that  18 way.  And I -- that's why we've tried to work this  19 proposal out as the best compromise to facilitate the  20 conduct of the case.  21 THE COURT:  Thank you.  Are you able to say, Mr. Goldie, whether  22 you're going to want to cross-examine all of the  23 Gitksan territorial witnesses?  24 MR. GOLDIE:  I can't say at this point, My Lord.  I haven't even  25 read the affidavits yet.  26 MR. GRANT:  Well, the Gitksan —  27 MR. GOLDIE:  Oh, we've told my friend that.  2 8 THE COURT: You're firm on that?  29 MR. GOLDIE:  Yes.  Yes.  30 THE COURT: Well, I would, of course, much prefer not having to  31 deal with this kind of a logistical problem.  There  32 are considerations motivating counsel to the positions  33 they take which I'm sure I do not fully understand or  34 appreciate.  The plan of batching the witnesses, as  35 has been described, is one that I'm generally disposed  36 to favour because it brings a modicum of certainty to  37 the lives of some of the people, and to counsel.  If  38 things change so that there was to be a dramatic  39 alteration in the utilization in the period of or  40 block of time, then I would want to attain some  41 flexibility, but it may be that I could do no more  42 than rely upon the skill and ingenuity of counsel to  43 juggle witnesses appropriately, and I'm content to say  44 now that I would be agreeable to what Mr. Grant  45 proposes for the week -- for the blocks of time  46 commencing September 12th and October 10th.  I'm not  47 sure that I want to go any further than that this 7602  Ruling by the Court  1 morning.  I would like to know as soon as possible  2 what Mr. Goldie's decision is regarding Dr. Daly.  3 MR. GRANT: Dr. Rigsby.  4 THE COURT:  I'm sorry.  Oh, I'm sorry, yes, Dr. Rigsby, because  5 I think that other than Dr. Rigsby the time set for  6 the other witnesses, it's a little under three weeks  7 of time -- well, I'm sorry, it's only two days short  8 of three weeks without Dr. Rigsby.  Will he be a long  9 witness?  10 MR. GRANT: I'd estimated him for four days, but if he came -- as  11 I said, we would have to keep a rider on that.  If he  12 came in, we would probably ask you to stand down if --  13 THE COURT:  Yes.  14 MR. GRANT:  — if, for example, it was Mr. Kari, to get Dr.  15 Rigsby in and out as quickly as we could.  16 THE COURT:  Well, I would like to reserve on the week of October  17 10th, even though I'm generally favourably disposed to  18 the batching, until we have some certainty about Mr.  19 Goldie's position for Dr. Rigsby.  For the period  20 November 7th, if Dr. Daly's going to take two weeks,  21 I'm certainly content to see that matter left that  22 way, and the third week kept in reserve to see if it  23 couldn't be utilized.  24 But I don't think that I want this morning to  25 pronounce on this question of how the territorial  26 cross-examinations are to be conducted.  Counsel are  27 in a so much better position than I am to resolve that  28 and I think I should get into that only if counsel  29 assure me, after whatever further discussion they can  30 share with each other, that it simply can't be  31 resolved without a pronouncement on it.  I'd like to  32 avoid that.  33 I'm to some extent in counsel's hands, but I'm  34 attracted by Mr. Macaulay's characterization of the  35 situation that a case of this magnitude calls for some  36 departure from usual practise and for some innovation  37 and some creativity, and I would like counsel to give  38 the question of how to manage those witnesses some  39 further consideration.  Counsel can bring that up  40 again at any time.  Perhaps we should have a further  41 discussion about it before the end of this week to try  42 and get it resolved.  If it's convenient, I'd be glad  43 to even suggest that maybe we review or reconsider  44 this question on Friday morning at the opening of  45 session Friday morning and counsel tell me if they've  46 been able to arrive at some combination, and I think I  47 should say no more than that at this time. 7603  Submission by Mr. Grant  1 MR. GRANT: My Lord, there's another matter I'd like to raise  2 before the evidence commences and that is something  3 that you may recall Mr. Goldie raised I think it was  4 towards the end of the second last week of our session  5 in June about the production of band documents, and  6 this was put over to the end of July and then because  7 of vacation time of persons involved it was put over  8 until the end of August and Mr. Goldie corresponded  9 with Mr. Rush and then with myself asking what has  10 happened and what can I expect.  11 Well, I must say that my anticipation of what  12 could be done, given the -- you had directed Mr.  13 Goldie to narrow the scope of his demand to be more  14 precise, and he did, and I corresponded with the bands  15 concerning that, but unfortunately it's difficult,  16 given the vast amount of documents that -- for the  17 band staff to begin to pull these out.  And what has  18 become apparent to me, and became apparent when I  19 became more directly immersed in it myself, was that  20 legal counsel has to be directly involved in the  21 initial review of the documents.  22 And after the week of cross-examination of  23 witnesses, I became involved myself and, by attending  24 at one of the bands and spending about half a day  25 there reviewing a very small percentage of the  2 6 documents they have.  And what I have proposed is that  27 we are in the process of producing these documents and  28 I'm going to do it on a band-by-band basis and it's  29 going to involve legal counsel going to each band and  30 doing it.  And I anticipate the listing for the first  31 band would be completed and produced to Mr. Goldie  32 next week, and I'm going to -- I'm hopeful that I  33 would be -- we would be able to complete this process  34 prior -- by the end of October.  And there are seven  35 bands that we have to review and this is on the  36 assumption that all of them have the kind of documents  37 that this one band has, that is, there's a vast number  38 of documents and hopefully they're all filed in some  39 form of order. Some are and some aren't.  But I  40 wouldn't wait until the end of October, of course, to  41 produce the list.  What I would do is I would produce  42 a list band-by-band as I went through them, and then,  43 of course, if the defendants wished production of  44 those documents so listed, then of course that would  45 be provided, and then I would hope that by the end of  46 October we would be completed the last of the bands.  47 So I say that -- I'm saying this, that we are 7604  Submission by Mr. Grant  Submission by Mr. Goldie  1 involved in this, researching this ongoing project,  2 and in fact I had hoped that there could have been  3 more non-legal assistance than has become apparent.  4 It's just a question of people not appreciating the  5 significance of the different areas and where those  6 documents can be located.  7 So that's my proposal regarding that, and I  8 would -- I just wished to report to the court on that,  9 and I anticipate that that would happen, and I would  10 propose that there's no necessity, as with requests  11 that we've made to the federal crown and to the  12 province at different times, there's no necessity at  13 this point for an order because we're endeavouring to  14 produce these lists now along the lines of the areas  15 that Mr. Goldie had indicated.  I have not completed  16 the review of these band documents.  I anticipate it  17 will take me another one-half day or one day, but  18 those documents that I have located I would list in a  19 list next week.  20 THE COURT:  Would it be convenient to you to respond to that Mr.  21 Goldie after you see the first list?  22 MR. GOLDIE:  I think so, My Lord. I'm surprised at the statement  23 there are a vast number of documents.  That wasn't the  24 intimation that was given us by those witnesses who  25 are familiar with -- who have served on the band  26 councils.  I should say there is an order already.  My  27 friend is really seeking an extension of the order.  28 THE COURT:  I think I'd like to hear from you, Mr. Goldie, after  29 you see the first list.  30 MR. GOLDIE:  Yes.  31 THE COURT:  And, necessarily, I can look at it and then we both  32 may have a better grasp of the magnitude or  33 non-magnitude of the problem as the case may be.  34 MR. GRANT:  Well, My Lord, I want to be very clear.  There's a  35 vast majority -- piles.  There's probably a hundred  36 file boxes of which probably less than one file box is  37 relevant. But there's a vast majority of paper to go  38 through to find the kernels.  39 THE COURT:  To find the small amount of paper you're looking  40 for.  41 MR. GRANT:  That's right.  That's the problem.  And my  42 understanding is the order dealt with the B.C. special  43 only, but Mr. Goldie's request went beyond that.  4 4 THE COURT:  Yes.  45 MR. GRANT:  And that's what we're producing and not only on the  46 B.C. special but on those other areas of the list.  47 THE COURT:  All right.  Thank you.  Anything else in a 7605  Submission by Mr. Grant  1 preliminary way?  2 MR. GOLDIE:  There are a number, but we're dealing with most of  3 them hopefully by correspondence, My Lord.  4 THE COURT:  All right.  Thank you.  5 MR. GRANT:  There is one other matter and that is that I  6 delivered to my friends this morning a document book  7 or an affidavit book of all the Wet'suwet'en  8 territorial affidavits and I took the liberty of  9 referring to exhibit numbers.  Madam registrar  10 confirmed with me that the next exhibit is 662 and  11 this document book goes from Exhibit 662 to Exhibit  12 677, inclusive.  I've given the original to madam  13 registrar and a copy for the court, and I would ask  14 that those documents be filed, and I wish to advise  15 that I learned that there is one further affidavit  16 which was not included in the index and it would be --  17 I would ask that it be marked -- Exhibit 678 be  18 reserved for it, and it will be the affidavit of Irene  19 Daum.  I think it's D-a-u-m.  2 0 THE COURT:  And what number would you —  21 MR. GRANT:  It would be on your index number 23, and it would be  22 Exhibit 678.  And I don't have the affidavit with me,  23 so I'm not sure of the date it was sworn.  So I would  24 ask that those documents be marked as the next series  25 of exhibits.  2 6 THE COURT  2 7 MR. GRANT  2 8 THE COURT  2 9 MR. GRANT  3 0 THE COURT  31 MR. GRANT  Some of these are already --  Yes.  Madeline Alfred is Exhibit 128 already?  Right.  Yes.  What I did was I endeavoured to put in these  32 exhibits now, with respect -- the numbering of all the  33 exhibits, including those that have already gone in.  34 THE COURT:  All right.  Are you satisfied with that, Mr. Goldie?  35 MR. GOLDIE:  I was trying to recall whether this was the way in  36 which we did the other ones, and if it is, then I have  37 no objection to that.  38 THE COURT:  Mr. Macaulay?  39 MR. MACAULAY:  No objection, My Lord.  40 THE COURT:  I don't recall if this is the way we've been doing  41 it.  42 MR. GRANT:  That's how we did the other ones I think exactly  43 except I had not listed the exhibit numbers and it was  44 a little more confusing.  45 THE COURT:  Yes.  All right.  46 MR. GRANT:  The only point I wish to say is that I'm not certain  47 whether Exhibit 307 A, the George Holland translation 7606  Submission 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  MR.  affidavit for Sarah Layton, was filed, or Exhibit  Bazil Michell is listed as Exhibit 78.  It should be  178.  COURT: I'm sorry, which one?  GRANT:  Bazil Michell, and that's Exhibit 178, and I don't  believe that the George Holland translation affidavit  was filed and that should be filed as Exhibit 178 A,  and it's the translation of that affidavit.  This  affidavit of Bazil Michell, in fact, was filed by the  provincial defendants and the translation affidavit  was not filed at that time, so it would make sense  that that would be added.  COURT:  Well, it's marked here as Exhibit 78.  GRANT:  Yes.  I think that's a typo.  It should be 178.  COURT:  178.  All right.  Well, is there a need to file it  again?  MR. GRANT:  No, I've just put it in here, but Exhibit 178 A,  George Holland, is a new exhibit.  All right.  And I'm just advising the court.  REGISTRAR: And 307 A is a new one?  GRANT:  And 307 A is a new one as well.  Okay.  Well, then this book of documents will be  admitted in evidence as containing Exhibits 662 to  678.  (EXHIBIT 662:  Tab 3, Affidavit of Lucy Bazil - June  22, 1988)  (EXHIBIT 663:  Tab 4, Affidavit of Fred Charlie -  September 9, 1987)  (EXHIBIT 664: Tab 5, Affidavit of Mabel Critch -  February 9, 1988)  (EXHIBIT 665: Tab 6, Affidavit of Johnny David - July  13, 1988)  (EXHIBIT 239-6: Tab 7, Florence Hall, Oct. 18, 88)  Tab 8, Affidavit of Elizabeth Jack -  THE  MR.  THE  THE  MR.  THE  MR.  THE  COURT  GRANT  COURT:  (EXHIBIT 666:  July 19, 198?  (EXHIBIT 667:  16, 1988)  (EXHIBIT 668:  February 10,  (EXHIBIT 307:  1988)  (EXHIBIT 307 A: Tab 11, Affidavit of George Holland  February 24, 1988)  (EXHIBIT 178: Tab 12, Bazil Mitchell - December 11,  1987)  (EXHIBIT 178 A: Tab 12, Affidavit of George Holland  i)  Tab 9, Affidavit of Mary Joseph - May  Tab 10, Affidavit of Walter Joseph -  1988)  Tab 11, Sarah Layton - February 24, 7607  Submission 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  January 4, 1988)  (EXHIBIT 185: Tab 13, Alfred Mitchell - January 8,  1988)  (EXHIBIT 669: Tab 14, Affidavit of Jimmy Morris - May  18, 19?  670: Tab 15, Affidavit of Roy Morris - April  671: Tab 16, Affidavit of Thomas K. Morris -  1988)  672: Tab 17, Affidavit of John Namox - May  673: Tab 18, Affidavit of Elsie Quaw - July  674: Tab 19, Affidavit of William Simms -  1988)  675: Tab 20, Affidavit of Mary Skin - June  676: Tab 21, Affidavit of Antoine Tom - May  (EXHIBIT  19, 1988)  (EXHIBIT  June 24,  (EXHIBIT  16, 1988)  (EXHIBIT  28, 1988)  (EXHIBIT  June 23,  (EXHIBIT  24, 1988)  (EXHIBIT  17, 1988)  (EXHIBIT 677: Tab 22, Affidavit of Warner William -  May 16, 198 8)  (EXHIBIT 678: (Reserved) Tab 23, affidavit of Irene  Daum)  MR. GRANT: Yes.  THE REGISTRAR: Yes.  678 will be reserved.  THE COURT:  678 is being reserved, and I guess counsel has  already stated a small number of these, the contents  of this book, have already been marked as other  exhibits.  All is shown in the index.  THE REGISTRAR: And I'll give them all a list tomorrow.  THE COURT:  Yes.  Thank you.  And these are all Gitksan  territorial affidavits are they?  MR. GRANT: No, all Wet'suwet'en.  THE COURT:  Oh, Wet'suwet'en.  MR. GRANT:  Yes. And there's translation affidavits.  And one  thing I wish to advise the court and my friends is  that I have not had an opportunity -- there may be  other translation affidavits that go with some of the  other witnesses.  I'd have to review those with the  translator and the person swearing.  THE COURT:  And these are the affidavits that Mr. Goldie hasn't  seen yet?  MR. GRANT:  I delivered them this morning to Mr. Goldie.  MR. GOLDIE:  Yes.  THE COURT:  Yes.  All right.  Thank you.  MR. GRANT:  They are of a similar nature to the Gitksan.  THE COURT:  Thank you. 760?  Submission by Mr. Rush  1  MR.  RUSH:  2  3  4  5  6  7  THE  COURT  8  MR.  RUSH:  9  10  11  12  13  14  THE  COURT  15  MR.  RUSH:  16  17  18  19  20  21  22  23  24  THE  COURT  25  26  MR.  RUSH:  27  28  29  30  31  32  33  34  35  36  37  THE  COURT  38  MR.  GOLDI  39  40  41  MR.  RUSH:  42  43  THE  COURT  44  MR.  RUSH:  45  46  47  THE  COURT  Thank you.  Before I call Mr. Sterritt to the  witness stand, Your Lordship will recall that a number  of exhibits were entered during the course of our  review of the video evidence.  The exhibits that were  entered there were the video tapes themselves as well  as, I believe, the transcript volumes.  : Yes.  A list of those exhibits was kept by madam registrar,  but at no time did we indicate for the purpose of the  record that those exhibits as listed were exhibits in  the course of the trial.  So I'm essentially just  making that known for the sake of the record at this  point in time.  : Yes.  All right.  Resolution verified.  I have two other minor matters dealing with Mr.  Sterritt's evidence.  The first is that I wish to  provide Your Lordship with photocopies of photographs  together with a revised index of Volume 2 of Mr.  Sterritt's book of documents and these should be  inserted in the appropriate place at the end of that.  I'm handing up to madam registrar the witness' copy  and to Your Lordship, Your Lordship's copy.  Now, this  goes into the back of Volume 2.  :  I should have brought the volumes with me, which I  omitted to do, but I'll get them at the morning break.  Now, in addition to those documents, I will also be  directing Mr. Sterritt's attention to another  document.  Again, I've provided a copy of this to my  friends this morning, which is really a summary of Mr.  Sterritt's helicopter field trips.  I thought it would  be a convenient way for referring Your Lordship to  these trips because the dates in several cases Mr.  Sterritt has referred to these at different times, so  I'm going to ask Your Lordship to put this in behind  the last exhibit in Volume 2 as well, and I'll provide  you with a tab.  So I'll hand up two further copies.  :  Uh-huh.  EI:  Is this tendered on the basis of my friend's  representation that this is just a summary of what  he's given in evidence?  I'll ask Mr. Sterritt about it, but in effect that's  it.  :  So this will be tab --  This will follow the last tab.  It should be, I  think, 73.  I don't have a tab yet, but I will provide  you with one.  :  I'll just mark it tab 73. 7609  Submission by Mr. Rush  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. RUSH:  I'll ask Mr. Sterritt, if you'll please come to the  witness stand?  THE COURT: I wonder, Mr. Rush, we're close to the adjournment  time, whether we shouldn't do that and I get the book  before we start the evidence?  MR. RUSH: Very well.  THE COURT:  I regret to say that it may be that I'll be a couple  of extra minutes because of an appointment I made at  10:15, but I think it's better that we do that before  we get started.  Very well.  Thank you.  MR. RUSH:  THE REGISTRAR: Order in court.  Court will recess.  (PROCEEDINGS ADJOURNED AT 11:10 FOR MORNING RECESS)  I hereby certify the foregoing to  be a true and accurate transcript  of the proceedings herein to the  best of my skill and ability.  Tanita S. French  Official Reporter 7610  N. Sterritt (For Plaintiffs)  In Chief by Mr. Rush  1 (Proceedings resumed following short recess)  2  3 NEIL STERRITT, Resumed:  4  5 EXAMINATION IN CHIEF BY MR. RUSH:  6  7 THE REGISTRAR:  I caution you, Mr. Sterritt, you are still under  8 oath.  9 THE COURT:  Mr. Rush?  10 MR. RUSH:  Thank you.  I am going to show Mr. Sterritt first the  11 document entitled Helicopter Field Transcripts, Neil  12 Sterritt.  13 Q   Did you prepare this, Mr. Sterritt?  14 A   Yes, I did.  15 Q   And what does this document represent?  16 A   It's a summary of the field trips I took by helicopter  17 indicating the station stops and people who went along  18 on the trip with me.  19 Q   Indicating those items by date reference?  20 A   Yes, they are.  21 MR. RUSH:  Can that be an exhibit, my lord?  22 MR. GOLDIE:  No objection.  My lord, I wonder if my friend can  23 assure me that the field notes that the witness made  24 with respect to each of those trips, have been  25 produced and, if so, are they exhibits?  26 THE COURT:  Firstly, yes, the notes, tab 73 may be the next  27 exhibit.  28  29 (EXHIBIT 679:  TAB 73 - HELICOPTER FIELD TRANSCRIPTS AND NOTES)  30  31 MR. RUSH:  Regarding the queries of Mr. Goldie, I can say that  32 the field notes, so far as I am aware, where they were  33 taken have been produced and whether or not they have  34 been exhibited, I can say that they haven't in all  35 cases been exhibited.  36 Q   Now, my lord, I am going to direct the witness's  37 attention back to the map, the base map and the  38 overlays, and you may recall that we broke off Mr.  39 Sterritt's testimony when Mr. Sterritt was about to  4 0 give evidence about over-laid map number 6.  41 THE COURT:  Thank you.  42 MR. RUSH:  43 Q   And I am going to refer Mr. Sterritt now to a copy of  44 a map which is entitled map 6, L. Skoda, June '88, and  45 there is also writing on the map in red, March 9/87,  46 map W/NJS, summary report, and just ask you, Mr.  47 Sterritt, if you can identify this map for his 7611  N. Sterritt (For Plaintiffs)  In Chief by Mr. Rush  1  2  3  4  A  5  Q  6  A  7  Q  8  9  10  11  12  13  14  15  16  17  A  18  Q  19  20  21  A  22  23  24  25  26  27  28  29  30  Q  31  32  A  33  THE COURT  34  MR. RUSH:  35  36  THE COURT  37  38  A  39  MR. RUSH:  40  Q  41  42  43  44  45  46  47  A  lordship?  On the face of the map it indicates  external boundaries of the Gitksan-Wet'suwet'en  territories with a date of March 9, 1987?  Yes.  Did you prepare this map?  Marvin George prepared this map.  Now, I'd like you to, if you will, Mr. Sterritt, just  look at that map and then look at this overlay, which  is overlay map number 6 on this board, and it's in  yellow on my -- on this map, my lord, and if you will  just review that and if, to your eye, can you  determine that map 9 -- excuse me, map number 6, dated  March 9th, 1987, appears to you to be the same as the  map that you identified as being the external  boundaries of the Gitksan-Wet'suwet'en territories,  March 9, 1987?  Could you ask that question again, please?  I was just asking, in comparing the map that I  produced before you, and overlay map 6, do they appear  to you to be the same?  No, the map dated March 9th is not the same as what is  identified as -- in what is identified as map 6 on the  overlay.  The map dated March 9th, 1987, was the metes  and bounds that was attached to my summary opinion,  and there were further changes that were made  subsequent to that.  This map was to go with my  report, it was not completed at the time, the metes  and bounds was done and then when we did get the map  done there were further changes to it.  All right.  This map, then, was not attached with the  summary opinion?  No, it was not.  :  Which map?  The map that we are referring to as the copy map,  March 9th.  :  March 9th.  You said then that it was to be attached  to your opinion, not that it was attached?  That's right.  Mr. Sterritt, in this overlay, map 6 indicates it's a  map of a metes and bounds description of the Gitksan-  Wet 'suwet 'en territories and in appendix A of  Sterritt's opinion of March 9, 1987.  My instructions  are that these -- this map was used as the basis for  this overlay, are you able to compare that to confirm  or not confirm that?  There is a difference between this map and the 7612  N. Sterritt (For Plaintiffs)  In Chief by Mr. Rush  1 overlay, which is colour-coded yellow, map number six,  2 I don't believe that this could have been used with  3 that one, because there is a difference.  For  4 example -- just a minute.  I am sorry.  I was looking  5 in the wrong part.  6 Q   Can I hold that up for you, would that make it easier?  7 A   I was looking in the area of Chapman lake and in fact  8 what I thought was changed was in the area of  9 Nichyeskw Creek.  That was my mistake.  It is the same  10 map as map 6, yes.  11 MR. RUSH:  My lord, I am going to ask that this map be marked as  12 an exhibit for identification and Mr. George, who will  13 be called as a witness, will speak to it at that time.  14 THE COURT:  All right.  670 for identification.  15 THE REGISTRAR:  My lord, the 646 numbers, they have been  16 reserved.  17 THE COURT:  I see.  18 THE REGISTRAR:  Number 6 overlay is 636 reserved.  19 THE COURT:  This will be Exhibit 646 for identification.  20  21 (EXHIBIT 680 FOR IDENTIFICATION: BASE MAP DATED MARCH 9, 1987)  22  23 THE REGISTRAR:  I am sorry.  I thought it was the overlay.  All  24 right.  25 MR. GOLDIE:  Exhibit 646 is the base map, is it not?  26 MR. RUSH:  That's correct.  27 THE REGISTRAR:  Is the base map, that's correct.  28 THE COURT:  So this map, March 9th, 1987, would not be in the  29 646 series?  30 MR. RUSH:  That's right.  31 MR. GOLDIE:  That's my understanding.  32 THE COURT:  So it will be 680?  33 THE REGISTRAR:  680.  34 MR. GOLDIE:  My lord, as the witness has said, that map -- there  35 was supposed to be a map attached to the summary  36 opinion of Mr. Sterritt's and there was never a map  37 and, as far as I know, this is the first time we have  38 seen that.  I am going to ask your lordship to permit  39 the defendant to take Exhibit 646, which is the large  40 base map, for the purposes of making a copy of it,  41 together with the overlays.  My friend, Mr. Rush,  42 tells me that that is the only copy.  We asked him for  43 a copy of the base map.  It is significantly  44 different -- I don't mean in the -- necessarily  45 different in terms of significance in the trial, but  46 it is significantly different from the desk top map,  47 which your lordship has.  So we wish to, at the close 7613  N. Sterritt (For Plaintiffs)  In Chief by Mr. Rush  1 of the day, and I now make the application, if that  2 could be released to the Provincial Defendant for the  3 purpose of making a copy.  And we would also  4 appreciate having released the document which has just  5 been marked for identification, 680.  6 THE COURT:  Any difficulty with that, Mr. Rush?  7 MR. RUSH:  Well, firstly, there is no difference, except one of  8 scale, between overlay map 6 and the small desk top  9 copies.  10 MR. GOLDIE:  I didn't say that.  11 MR. RUSH:  Pardon me?  12 MR. GOLDIE:  I said the base map differs significantly from the  13 base map of the desk top series.  14 MR. RUSH:  That's what I indicated at the time I introduced the  15 maps that there were two different base maps appended,  16 that were prepared in respect to this large easel map  17 and the desk top.  But that my only concern about my  18 friend's proposal, is one of administration.  It is  19 not easy to photocopy this map, and I am referring to  20 the overlay easel map.  It is a difficult task and  21 unless my friend has people ready to go immediately  22 after court, it's going to be very difficult to do,  23 given the nature of this kind of map.  As this is  24 something that I have personally have investigated  25 with photo re-producers around the town.  So I want to  26 be sure that only that the map is back in court for  27 use tomorrow morning, that's all.  2 8 THE COURT:  All right.  Mr. Macaulay?  29 MR. MACAULAY:  I have no submission to make.  I can get a copy  30 from whoever can succeed in having one made.  31 THE COURT:  Do you think you can have if done overnight?  32 MR. GOLDIE:  I don't know.  I will inquire about that.  33 THE COURT:  If you can't get it done overnight, make  34 arrangements and leave it until tomorrow.  But I will  35 give you leave to extract it when convenient.  36 MR. GOLDIE:  When we get the schedule arranged it will be  37 taken --  38 THE COURT:  By the way, what happened to my desk top copy, is it  39 downstairs in my room?  40 THE REGISTRAR:  Yes, my lord.  41 THE COURT:  And Mr. Macaulay's famous map, is it down there too?  42 THE REGISTRAR:  Yes, my lord.  43 MR. RUSH:  My lord, I would like also to have marked as an  44 exhibit the map number 6 in yellow, map overlay number  45 6, as the next map in the sequence of overlay maps,  46 which I think is 646, 6.  47 THE COURT:  Any objection to that, Mr. Goldie? 7614  N. Sterritt (For Plaintiffs)  In Chief by Mr. Rush  1 MR. GOLDIE:  Yes, that number has been reserved for it but I  2 assume that now depends on Mr. George's evidence, if  3 the -- if Exhibit 680 For Identification, awaits Mr.  4 George's verification, then the same applies to the  5 overlay, which the witness has said is exactly the  6 same as this.  I assume the overlay map has no  7 independent existence.  8 MR. RUSH:  That's correct.  9 THE COURT:  Well then Exhibit 646-6 should be for identification  10 as well.  11 MR. RUSH:  My understanding was that he were marking these as  12 exhibits in the trial.  But again, I have no  13 objection.  14 THE REGISTRAR:  Exhibit 646-6 for identification, overlay map.  15 THE COURT:  Yes.  16  17 (EXHIBIT 646-6 FOR IDENTIFICATION: OVERLAY MAP)  18  19 MR. RUSH:  20 Q   Now, Mr. Sterritt, did you provide any information to  21 Mr. George in assisting -- to assist him in preparing  22 what is now map 680, Exhibit 680?  23 A   Exhibit 680 being the March 9th, 1987 map?  24 Q   Yes, yes.  25 A   Yes, I did.  Marvin had copies of the white binder  26 with six maps of mine, he had access to my field books  27 and any information that I received that updated  28 previous information I passed along to him, either by  29 phone or by going to his office, and informing him of  30 the changes.  31 Q   Now, I'd like you to look at map overlay four and map  32 number 6.  33 Map overlay 4, my lord, is the map that's dated  34 October 17th, 1985, and is entitled here Traditional  35 Boundaries of the Gitksan-Wet'suwet'en Territories  36 Draft Coded by Clan Village and Chief, sometimes  37 colloquially referred to as the coded map, and that's  38 map 4.  And I am going to ask Mr. Sterritt to look at  39 map 4 as it is replicated on the overlay and compare  4 0 it with map 6.  41 THE COURT:  And map 4 is what colour?  42 MR. RUSH:  Map 4 is, to my eye, purple.  43 MR. GOLDIE:  Is that Exhibit 102?  44 MR. RUSH:  Yes.  Exhibit 102 in the trial.  45 Q   Would you look at the overlay of map 4 and map 6?  46 A   Yes.  47 Q   And can you tell the court if there were changes to 7615  N. Sterritt (For Plaintiffs)  In Chief by Mr. Rush  1  2  A  3  4  Q  5  6  A  7  8  9  10  11  Q  12  13  14  15  16  17  A  18  19  20  21  22  Q  23  24  25  A  26  27  28  29  30  31  32  33  34  35  Q  36  A  37  Q  38  39  A  40  41  Q  42  43  44  45  46  THE COURT  47  MR. RUSH:  the external boundaries between map 4 and map 6?  Yes, there are.  There are, I believe, a total of 12  changes.  All right.  And can you identify where those changes  occurred on the maps that are on the overlay?  Yes, I can.  There is a change from map 4 to map 6 on  the northern boundary, being at the headwaters of the  Skeena and Nass River, there is a change on the  northwestern boundary in the area of Treaty Creek and  the Bell-Irving River.  Now, just before you carry on with identifying the  other changes, dealing with the one change that you  first pointed out at the northern part of the external  boundary, would you indicate to his lordship what the  change is, identifying it between the two coloured  lines in the overlay?  Yes.  The change is a change from the very headwaters  of the Skeena and Nass River, down to a point some 15  to 20 miles down along the -- crossing the Nass River  and the Skeena River, and reducing the area, reducing  the territory.  It's not an expansion of territory.  And in respect of that change between the two maps and  dates, can you explain why the change was made, if you  know?  Yes.  The earlier information that we had was of a  more general nature, it was incomplete, and in the  fall of 1986 the lawyers had asked me and Marvin  George as researchers, or myself as a researcher, and  Marvin George, and others, to be more precise, more  accurate in the boundaries.  As a result I reviewed  notes that I had and also talked to other hereditary  chiefs, knowledgeable persons they gave me more  specific and more detailed information about where the  boundary should be in that area.  Now, here you're referring to the external boundary?  Yes, I am.  And who did you consult at that time in 1986 with  regard to that northern boundary?  I talked to Martha Himadam, her name is also Martha  Sinclair, her Indian name is Gallix a Gybuu.  Mr. Sterritt, if you would just pause there.  My lord, you will note the absence of the word  speller.  She has been unable to attend to this time  and I have asked Mr. Sterritt if he would spell some  of the words with his spelling to assist the court.  :  Thank you. 7616  N. Sterritt (For Plaintiffs)  In Chief by Mr. Rush  1  Q  2  A  3  1  4  MR.  RUSH:  5  6  A  7  ]  8  Q  9  i  10  A  11  12  13  14  Q  15  1  16  17  i  18  A  19  Q  20  A  21  Q  22  i  23  24  25  i  26  MR.  GOLDIE  27  28  29  30  31  32  33  34  35  THE  COURT:  36  37  MR.  GOLDIE  38  39  40  THE  COURT:  41  MR.  RUSH:  42  43  44  45  46  47  Carry on, Mr. Sterritt, who else did you consult?  I talked to Martha Brown, that is Kliiyem lax haa.  I  don't know if you have a number for that.  We do.   I will provide it to the court.  It's 35 on  the plaintiffs' list.  I talked to Walter Blackwater, Diisxw, and I talked to  my uncle, Percy Sterritt, Wii Bowax.  And as a result of your discussions with them, what  did you conclude?  I concluded that the boundary should be moved, based  on the more accurate information they had, and it was  partly based on a field trip as well that I made to  the area with Walter Blackwater.  And in terms of the field trip that you made with  Walter Blackwater, the summary which you presented or  identified this morning as Exhibit 679, what was the  date of that, Mr. Sterritt?  September 6th, 1986, I believe.  I am just showing you that document now, 679.  Yes, on page 3, it was September 6th, 1986.  I want to ask you in respect of information from Mr.  Walter Blackwater, what, on that heli flight, were you  informed that led you to determine that the boundary  was at a place different from that that was shown on  map 4, overlay?  :  My lord, I, of course, record my objection.  Mr.  Blackwater is alive.  I will have a more general  objection to make with respect to any communication  being given in evidence after the Writ was issued, but  in this particular case, Mr. Sterritt is qualified as  an expert to take information and say, "I have  accurately conveyed it or reproduced it on a map."  But I object to the giving of any evidence in that  regard.  Of course, it doesn't prove the truth of what Mr.  Blackwater told him.  It explains what he did.  :  That's right.  He took what he got, and he put it  on the map or gave it to Mr. George, but I record my  obj ection.  All right.  Thank you.  Mr. Blackwater has sworn an affidavit and has been  examined on that affidavit and we can, of course,  allow that evidence to stand for what it says.  However, Mr. Sterritt I think is quite entitled on  the -- both in terms of his qualifications and in  terms of what we started out to do prior to our  interruption to explain what he did.  And this is the 7617  N. Sterritt (For Plaintiffs)  In Chief by Mr. Rush  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.  RUSH:  Q  A  process that we are in now.  THE COURT:  What was in his mind leading him to do what he did.  You can go ahead with that.  I asked you, Mr. Sterritt, about what was said to you,  for example, by Mr. Blackwater, which led to you  conclude that the boundary line should be changed to  the -- to a place that's indicated on map number 6 in  the northern part of the territory?  Well, there is a sequence of events, actually.  First  of all, my uncle, Percy Sterritt, had described a tree  in a swamp which had very unusual writing on it.  And  that he and his cousin had travelled to that area and  he told me how far it was from where their base camp  was and I had determined a general area for that.  When he had returned to the camp and described this to  his uncle, his uncle said, "That is the boundary,  don't go beyond there."  As I flew from a mountain in  the area north of Jackson Flats, west across to south  of Xsi maxhla biluust maawxs on the map, that is  Konigus Creek.  When we flew in that direction, Walter  had turned and -- he was on the right hand side of the  plane I was on the left -- he turned and pointed down  and said the boundary is down in that area and there  was a swamp, it was difficult for me to see, I was on  the left hand side, but I could see down in that area  and there was a swamp in that area, and it was in the  area where he later described the same tree, he and  Sam had travelled down Konigus Creek and up a short  ways and found this same tree, which better located  that boundary and that is -- that resulted in better  defining that boundary and then he described that when  he was in cross-examination over the affidavit as  well.  Q   All right.  You made reference to an uncle of your  uncle's, Percy Sterritt, do you know the name of that  man?  A   Either Robert or Phillip Wilson, they were both uncles  and I am not sure which one my uncle was with, but  it's in my notes.  Q   And the feature that you have given the Gitksan name  for, is that a feature that is on the base map?  A   Konigus Creek, yes, it is.  Q   And the Wilson uncle, is he deceased?  A   Yes.  Q   Now, you mentioned that you also obtained information  from other persons, and you identified Martha Himadam, 761?  N. Sterritt (For Plaintiffs)  In Chief by Mr. Rush  1 Martha Brown and Percy Sterritt, the information that  2 you obtained from them, was it of a similar kind as  3 that you had received from Mr. Blackwater, that  4 allowed you to determine that the boundary was to be  5 placed at a point shown in yellow on this map, number  6 6?  7 A   Yes.  Martha Brown, I talked to, and asked her whether  8 the boundary really went to the very head of the Nass  9 or somewhere beyond, and I used as an identifier,  10 which she knew precisely as Dim Geiss Hanii Jok, and  11 that's in the area of Panorama Mountain.  12 Q   What is that feature, Mr. Sterritt?  13 A   She described it as a post, it was actually a post put  14 up on this mountain that was a marker between her  15 territory and Geel's territory, and that the territory  16 went north from there and I asked her, did it go to  17 the head of the Nass or to the mountains across the  18 valley to the north of there and she said, not that  19 far.  It went beyond there.  Coupling this information  20 with what Percy was telling me and Walter Blackwater,  21 I was able to start zeroing that in but Martha spoke  22 English not that well and Gitksan very well, and it  23 was difficult to nail down exactly where that was but  24 I was satisfied that it wasn't right to the head of  25 the Nass and it was somewhere short of that.  26 I also talked to Martha Sinclair, Martha Himadam,  27 and she gave me information in the same area.  For  28 example, she said that Table Mountain was not in  29 Geel's territory and that it was short of there.  She  30 also said that the territory of Geel didn't go that  31 far up the creek and she referred to Burns Creek,  32 which was a creek which -- where the boundary runs at  33 this time.  And she -- the reason she was familiar  34 with that area was because she was in the house of  35 Geel and was the daughter of Peter Himadam, so she was  36 an informant that I hadn't talked to prior to that and  37 provided important information to me.  38 Q   I think you indicated earlier in your testimony that  39 Martha Himadam was a hereditary chief?  40 A   She was -- I am not sure that she was a hereditary  41 chief, I am not sure I said that, but she held a name  42 and was in the House of Geel.  43 Q   The information you obtained from these chiefs, did  44 you pass that on to Marvin George?  45 A   Yes, I did.  46 Q   Let me ask you about the next change on the external  47 boundary, I think you were about to direct our 7619  N. Sterritt (For Plaintiffs)  In Chief by Mr. Rush  1  2  3  A  4  Q  5  6  A  7  8  9  10  Q  11  12  A  13  THE  COURT  14  A  15  THE  COURT  16  17  A  18  19  20  21  MR.  RUSH:  22  Q  23  24  25  A  26  27  28  29  30  31  MR.  RUSH:  32  THE  COURT  33  MR.  RUSH:  34  A  35  36  37  38  39  40  41  42  43  44  45  46  47  Q  attention to an area around Treaty Creek; is that  right?  Yes.  Now, is there a change between map 4 and map 6 on the  overlay map series?  Yes.  The boundary went from -- changed to go down the  creek that we call Xoo, to the -- it's Treaty Creek on  the map, and to the Bell-Irving, and then up the  Bell-Irving.  Would you just point out to his lordship what the  change is?  It's in this area, this is the changed map right here.  :  Does Treaty Creek run --  This is Treaty Creek under right here.  :  On the south boundary, south side of the new  boundary?  Yes.  And the Bell-Irving River runs along here and  the place that we landed, where the house pits were,  was in this area right in here.  We were just up north  the Bell-Irving there when we went on the viewing.  Now, did you obtain information from a hereditary  chief which led you to conclude that the boundary  should be changed in that area?  Yes, Nii Kyap, David Gunanoot, was very knowledgeable  of that area and he described that to me and when I  sat down with him and reviewed the boundary in that  area, originally -- the territory belongs to the house  of Skiik'm lax ha.  I don't know if you have a number  for that.  Yes, that's 59 on the plaintiffs' list.  :  59?  Yes.  And David Gunanoot's grandfather was from the House of  Skiik'm lax ha.  He was allowed by a successor to his  grandfather to register a trapline in this area and  the trapline boundary was north of Treaty Creek and  part of the reason that I went from the headwaters of  Treaty Creek over to the Bell-Irving, it was an  extrapolation that I made and partly the description  which David was giving me, which was more about his  trapline than it was about the territory, when I sat  down after instruction from the lawyers, got more  precisely what the boundary was, then David informed  me that it did go down Treaty Creek and up the  Bell-Irving River.  So, when you refer to the extrapolation, you mean as 7620  N. Sterritt (For Plaintiffs)  In Chief by Mr. Rush  1  2  3  A  4  Q  5  6  7  8  A  9  Q  10  A  11  12  13  14  15  16  17  18    I  MR. RUSH  19  Q  20  A  21  22  23  24  25  Q  26  27  A  28  Q  29  30  31  A  32  Q  33  34  A  35  36  37  38  39  40  41  Q  42  43  A  44  45  Q  46  47  A  it is shown on map 4, which is dated October 17th,  1985?  Yes.  Now, there is another change, just carry on down on  the northwestern side of the external boundary, and I  would ask you if there is another change in and around  the area of Stevens Lake?  Yes, there is.  First identify to his lordship what the change is?  It's an addition, the yellow line extends south and  then east and then northeast along the height of land  back down into the mountains at the head of Nangeese,  which is the name on the map, Nangeese River.  That  was a better definition of the external boundary on --  when I sat down and talked to, in more detail, with  Albert Tait, I was reviewing the boundaries in this  area.  That's the former Delgamuukw; is that correct?  That's right.  And as I say I reviewed that with  Albert Tait and I also talked to Richard Benson, Pete  Muldoe and my uncle, Percy Sterritt, and I believe  Jasper Jack.  And they gave me more precise  information about where that went.  As a result of those discussions, the boundary came to  be reflected in the manner that's shown on map 6?  Yes.  That's overlay map 6.  And, again, Mr. Sterritt, I  take it the information you obtained was passed on to  Mr. George, was it?  Yes.  All right.  And was there a change made at the  Kitwanga River?  This would be the next change.  Yes.  Once again, it's a reduction, I was able to sit  down with Gwis gyen, Stanley Williams, and discuss  that boundary in more detail, and he pointed it out,  he explained it to me in more precision and that  changed the boundary as its reflected with the yellow  line below the purple line in the area of the Kitwanga  River and on the west side of the Kitwanga River.  Now, I'd ask you to look in the area of the Kiteen  River, is there a change located in that area?  Yes.  And that change is the result of several  discussions.  It's also a reduction.  Perhaps just point out to his lordship what it was as  shown on October 17th and what it became    The purple line extends north and east and then south, 7621  N. Sterritt (For Plaintiffs)  In Chief by Mr. Rush  1  2  3  4  5  6  7  8  Q  9  A  10  Q  11  12  13  A  14  15  16  17  18  19  20  21  22  Q  23  24  25  26  A  27  Q  28  29  A  30  Q  31  32  A  33  Q  34  35  A  36  37  38  39  THE COURT  40  MR. RUSH:  41  Q  42  43  A  44  Q  45  46  A  47  coming up the Kiteen River and the yellow line goes  along the height of land at the headwaters of the  Kiteen River, the Kiteen River flows north and then  west into the Nass River.  And this was a result of  change, of a change, as I mentioned, through  discussions with Stanley Williams as well as some  members of of the House of Yal.  That's Y-A-L?  Yes.  Now, just ask you about an area farther south of that  area, Kiteen River, and that's the area of Sand Lake,  is there a change shown on the map of Sand Lake?  Yes.  This in fact is a communication error on my  part, communication problem.  I had assumed from a  discussion I had with Art Mathews junior that Sand  Lake should not be included and therefore changed.  You can't see the yellow line but it excludes Sand  Lake, but in fact -- this comes into a later map, but  with a field trip we went back and they showed me  exactly where the boundary should be and this is  restored on a later map.  Just if I may pause there, Mr. Sterritt, in 1985, the  October 17th 1985 map shows -- do I take from your  evidence that it shows Sand Lake is included within  the territory of Mr. Matthews?  Yes, it does.  And then the change that was made in March of 1987  shows that it was excluded?  Yes.  And you then say subsequently your information is that  it is included?  Yes.  And who was it that gave you instructions with respect  to this area?  There is a number of people, Stanley Williams was a  person that I travelled to the area with, Art Matthews  senior, and then on a subsequent trip I went there  with both Art Matthews junior and Art Matthews senior.  :  Let me see it for a moment.  All right.  Mr. Sterritt, there is a change at a site  on the Skeena River known as Pacific?  Yes.  Can you just indicate to his lordship what that change  is in the two maps?  It's a result of -- well, the change, first of all,  the October of '85 map is the purple line running 7622  N. Sterritt (For Plaintiffs)  In Chief by Mr. Rush  1 farther south and the March 9th of 1987 line is a  2 yellow line going a little farther north on the west  3 side of the Skeena.  4 Q   In terms of the geographic features that the line  5 represents, what does the change represent?  6 A   The change represents --  7 Q   On the ground, that is.  8 A   The change represents a change of reduction in the  9 area of the overall territory and it is the yellow,  10 the March 1987 boundary runs along the height of land  11 and down, then down to a lake and a creek and then to  12 the Skeena.  That's as a result of more detailed  13 discussions with Stanley Williams, but also an aunt of  14 mine, Edith McDougall, Wii Lixs Akasp.  15 THE COURT:  I am sorry, W-I-I —  16 A   L-I-X-S space A-K-A-S-P.  And she is Wolf but her  17 father was Fireweed and he and his family are closely  18 related to the Kitselas family of Niista Huuk, and she  19 explained to me that her father had a totem pole at  20 Pacific and that that was his -- part of his  21 territory.  And that his territory also extended on to  22 the west side of the Skeena.  Pardon me, the east side  23 of the Skeena.  So between what Stanley Williams had  24 more specifically described to me and what my aunt had  25 explained, and the discussions with the family of the  26 Eagle family, who owned this territory, the boundary  27 was moved slightly north there.  The Pacific is on the  28 Skeena right there.  29 THE COURT:  So, the — a part of the bank of the Skeena is  30 excluded from the territory that was formerly claimed?  31 A   Yes.  32 THE COURT:  So you ran the boundary at the height of land  33 immediately north of the Skeena then?  34 A   Immediately -- the boundary should have followed the  35 height of land around Xsugwin Gaat, that's Fiddler  36 Creek.  And the boundary that we originally had did  37 not follow the height of land around Fiddler Creek, it  38 departs from that only when it gets close to the  39 Skeenagets close to the Skeena, it goes down a creek  40 which is called  Xsi tax.  41 MR. RUSH:  42 Q   Now, your aunt's father's relatives were not part of  43 the land claim area?  44 A   That's correct.  My aunt's father was Gwiiyeehl, a  45 plaintiff in this action, and they are closely related  46 to the Fireweed people at Kitselas, they lived there  47 at one time. 7623  N. Sterritt (For Plaintiffs)  In Chief by Mr. Rush  1  Q  2  A  3  Q  4  5  A  6  Q  7  THE  COURT  8  MR.  RUSH:  9  Q  10  11  12  13  14  A  15  THE  COURT  16  A  17  MR.  RUSH:  18  Q  19  20  21  A  22  Q  23  A  24  25  THE  COURT  26  A  27  MR.  RUSH:  28  Q  29  30  A  31  Q  32  A  33  34  35  36  37  38  39  Q  40  41  42  A  43  44  45  46  MR.  RUSH:  47  A  And Kitselas is south and west along the Skeena?  Yes.  And Pacific, you have made mention of Pacific, and  what is at Pacific?  It's a railway stop.  Gwiiyeehl is number 19 on the plaintiffs' list.  :  Thank you.  Now, Mr. Sterritt, I direct your attention to the east  side of the external boundary of the Gitksan-  Wet 'suwet 'en territories, do you see changes there  between the 1985 and the 1987 maps shown in the map 4  and six overlays?  Yes.  The major change is in the area of Tsaa Kee aas.  :  I am sorry, the last three letters?  A-A-S, which is French Peak.  Just before you go to French Peak, is there a name of  a river in that area that sites the place of the  change?  Yes.  What is that, please?  The Nichyeskwa, N-I-C-H-Y-E-S-K-W-A, River on the map,  Nichyeskwa Creek on the map.  :  E-S-K-W-A?  Yes.  When you say the map, you are there referring to the  base, the N. T. S. base?  Yes, right.  Can you identify the change between the two maps?  The -- this is, once again, is a reduction in area.  The 1985 map is has the purple line going from French  Peak up to the Babine River up to near Mount Hiretsky  and the reduction is to go along the height of land  west of French Creek to Mount Thowen and then north  from Mount Thowen back to the Babine River near Mount  Heretsky.  What led to your making that change in terms of the  information that you passed on from mapping to Mr.  George?  Well, once again, my original -- it was a  extrapolation that I had made from French Creek to  near Mount Heretsky.  In fact, Walter Wilson had --  who is the hereditary chief, Djogaslee --  That's number five?  -- who spoke on behalf of their house on the 7624  N. Sterritt (For Plaintiffs)  In Chief by Mr. Rush  1 territory, informed me that the boundary went off  2 Pjhla gyoot, and that the boundary went north from  3 there to the Babine River and that resulted in a  4 reduction in the area.  5 Q   Thank you.  6 MR. RUSH:  Thank you.  7 Q   Now, I would ask you to refer to an area known as the  8 Bait Range or An skiisx, is there a change located in  9 that area, Mr. Sterritt?  10 A   Yes.  It's, once again, a reduction in area.  And it's  11 a result of getting more detailed information from the  12 persons who were knowledgeable about that area and, in  13 this case, Robert Jackson senior.  14 Q   Could you just pause there for a moment, Mr. Sterritt,  15 and point out the change to his lordship where it's  16 located?  17 THE COURT:  I can see it.  18 MR. RUSH:  19 Q   What did Mr. Robert Jackson senior assist you with?  20 A   He advised me that the line should go more directly or  21 more generally northeast to the Bait Range, rather  22 than along a creek south or east and then south, but  23 that once it got to the Bait Range it should follow  24 the Bait Range along.  As you go south to the  25 headwaters of Elmore Creek.  And he identified a lake  26 and a creek for me in that area and he pointed out  27 that lake and the creek when we were on the south end  28 of the Driftwood Range.  29 Q   And Mr. Robert Jackson senior is a member of which  30 house?  31 A   He is a member of the house of Miluulak.  32 Q   And is that the house whose external boundary is  33 involved there?  34 A   Yes.  35 MR. RUSH: Miluulak is 49, my lord.  36 Q   Driftwood River, is there a change identified between  37 the two overlays at that point?  38 A   Yes, there is.  39 Q   Could you explain that change?  40 A   I had talked to Paul Jack, who's knowledgeable about  41 this area and he mentioned to me Tetana should be  42 within their territory and a minor change was made in  43 that area.  Tetana is a lake, a small lake south of  44 Bear Lake.  45 Q   And in whose territory is Tetana located?  46 A   The territory of Nii Kyap.  47 Q   And what relationship, if any, does Mr. Jack have to 7625  N. Sterritt (For Plaintiffs)  In Chief by Mr. Rush  1  2  A  3  Q  4  5  A  6  THE  COURT  7  MR.  RUSH:  8  A  9  Q  10  A  11  12  13  Q  14  15  A  16  17  18  Q  19  20  21  A  22  Q  23  A  24  25  26  Q  27  A  28  29  THE  COURT  30  A  31  32  33  THE  COURT  34  A  35  36  37  MR.  RUSH:  38  Q  39  40  A  41  Q  42  43  A  44  45  46  47  the house of Nii Kyap?  He is a member of the House of Nii Kyap.  The next area I would like you to refer to, Mr.  Sterritt, is Bas, the Bas area B-A-S.  Yes.  :  B-A-S?  Yes.  That is the mountain just east of Bear Lake.  Could you point that out on the map, please?  It's right here, and we landed, our second landing on  the overview, we landed just off to the west of the  height of land on Bas.  What's the change that is identified between the two  maps?  The change goes from part of the Omineca River on the  east side of Bas, to the height of land at Bas.  And  that was from a discussion I also had with Paul Jack.  All right.  And I think you indicated there were --  there was another change, and is that located in the  Tutadi area?  Yes.  Could you point out the change, please?  Tutadi Lake extends all along to here and then Tutadi  Creek runs into Tutadi Lake.  The change is to follow  Tutadi Creek, it's a reduction in area once again.  Could you just point that out again?  It's a reduction from the purple line down to the  yellow line, right there.  :  Where's the lake?  This is Tutadi Lake under that line and this is Tutadi  Creek running right here and the change is right  there.  :  Yes?  And that was based on, partly on a discussion with,  possibly Sam and James Morrison, but James and also  David Gunanoot, Nii Kyap.  And it was as a result of those discussions that  change was made in the map overlay number 6?  Yes.  And in respect of all of the changes which -- by the  way, let's me ask you, are there any other changes?  Yes, there is one more.  It is actually more a result  of better definition on a topo map of where the height  of land is and where the drainages are.  As I recall,  some of the maps show the drainage from the lakes at  the head of the Duti River going east and in fact they 7626  N. Sterritt (For Plaintiffs)  In Chief by Mr. Rush  1 drain west into the Duti River, and the boundary  2 extends around the head of the two Duti lakes,  3 D-U-T-I.  4 Q   Where is that?  5 A   That's right up in the northeast corner here.  6 Q   Okay.  And that change came about as -- came about by  7 a more detailed understanding of the river flows?  8 A  Well, Marvin George.  9 Q   The drainages?  10 A  Marvin George was doing a metes and bounds based on  11 the maps that he had, and that reflected it.  When he  12 had a better map, then the -- and followed the height  13 of land, then it went out around that area.  14 Q   Now, in respect of each one of the changes which you  15 have referred to in your evidence, did the information  16 which you had obtained from the people that -- the  17 hereditary chiefs, was this passed on to Marvin  18 George?  19 A   Yes.  20 Q   And in respect of that information, was a metes and  21 bounds description reflecting that information  22 prepared by Marvin?  23 A   Yes, there was.  24 Q   And was that the metes and bounds description that  25 eventually was appended to the summary of your opinion  26 on March 9, 1987?  27 A   Yes.  28 Q   What did you do with that metes and bounds description  29 after it was prepared by Mr. George?  30 THE COURT: I am sorry the date was March —  31 MR. RUSH:  March 9th, 1987.  32 A   I reviewed it with him, went over it.  33 Q   All right.  And I think you indicated that at the time  34 of March 9th, 1987, that there was no map prepared  35 like the one that has been exhibited as 680, can you  36 explain what, if you know, can you explain when the  37 map was prepared or what occurred after the metes and  38 bounds description?  39 MR. GOLDIE:  Are we talking about the map that has the date  40 March 9th, 1987 on it?  41 MR. RUSH:  That's right.  42 THE COURT:  Exhibit 680, is it?  43 MR. RUSH:  That's right.  44 MR. GOLDIE:  All right.  45 A   The map was in the process of being prepared, a metes  4 6 and bounds had been done by Marvin, the map was in the  47 process of being prepared but was not submitted at 7627  N. Sterritt (For Plaintiffs)  In Chief by Mr. Rush  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.  RUSH:  Q  A  MR.  THE  MR.  MR.  MR.  THE  A  Q  A  RUSH:  COURT  RUSH:  GOLDIE  RUSH:  COURT:  MR. RUSH:  THE COURT  MR. RUSH:  that time with my report, had not been completed.  And what occurred following that, following, let us  say, the date of March 9th, 1987, with regard to  information which you had obtained about the external  boundaries?  Well, I was continuing to, in the period following my  summary opinion, to work more intensively with a wider  range of hereditary chiefs, under instruction of the  lawyers, and further changes were coming forward.  Okay.  And were those eventually reflected in a map  that was presented to the court?  Yes.  And is that the map that was appended to the statement  of claim, which is dated -- the map is dated the May  2nd, 1987?  Yes.  I am going to go on to that.  The date of that map is?  May 2nd, 1987.  And in fact, my lord, there is a map  appended to the amended statement of claim, that was  filed with the court on May 11th, 1987.  That's Exhibit 5, isn't it?  No.  And that map of -- I am sorry, I have got it  reflected in the statement of claim, May 2nd.  I am sorry, the map is dated May 2nd but the  amendment to the statement of claim is dated May 11th,  1987.  That's right.  All right.  Thank you.  Shall we  adjourn until 2 o'clock please?  Yes.  Thank you.  I Hereby certify the foregoing to be  a true and accurate transcript of the  proceedings herein to the best of my  skill and ability.  Wilf Roy  Official Reporter  (PROCEEDINGS CONTINUED AT 2:00 P.M.) 762?  Submission by Mr. Goldie  In Chief by Mr. Rush  1  2 THE REGISTRAR: Order in court.  Recalling Delgamuukw versus Her  3 Majesty the Queen at bar, My Lord.  4 MR. GOLDIE: My Lord, before my friend begins, a point of  5 clarification.  Well, first I should say that we're  6 advised the photographic people can deal with this if  7 we can have this exhibit at 4:00 p.m. tonight.  8 THE COURT:  All right.  9 MR. GOLDIE:  But the point of clarification, My Lord, refers to  10 the evidence that Mr. Sterritt gave this morning which  11 is basically a continuation of the evidence that he  12 was giving before the break in July, and that is how  13 he took information and transferred it on to Marvin  14 George and the maps are the result.  We have then the  15 field notebooks and other notes that Mr. Sterritt made  16 of his conversations and, in my submission, those  17 constituted the facts upon which he would express an  18 opinion, his area of skill being, could that  19 information be transferred to a pictorial depiction  20 such as these maps?  21 In other words, the field notebooks and the  22 looseleaf notes and the other notes constituted, and I  23 quote from Section 11 of the Evidence Act, the facts  24 on which the opinion is formed has been furnished.  25 That's the way we proceeded.  And, as Your Lordship  26 knows, we had a substantial number of those field  27 notebooks and other notes.  I have assumed this  28 morning that no evidence of what Mr. X said to Mr.  29 Sterritt is new in the sense that it isn't contained  30 in those notebooks because if it is new, then it  31 becomes a fact upon which his opinion is based, and we  32 have not been given the requisite notice under Section  33 11.  34 Now, the importance of that is, of course, obvious  35 that Your Lordship, before the evidence can be  36 tendered, should hear submissions on whether the  37 notice is adequate and if it's admissible.  I think I  38 should ask my friend to confirm my assumption that  39 everything that the witness has said with respect to  40 the change between maps 4 and 6, if I remember  41 correctly the numbers --  42 THE COURT:  Yes.  43 MR. GOLDIE:  -- is found in the notebooks we have, otherwise, we  44 have no means of checking the facts.  45 THE COURT:  You had no notice?  46 MR. GOLDIE:  And we've got no notice.  47 Now, I say that because we did receive additional 7629  Submission by Mr. Goldie  Submission by Mr. Rush  1 material on September 2nd and September 7th.  I don't  2 understand the witness to have referred to any of that  3 material so far, but I wanted to be sure that we were  4 not hearing what I will call new facts, and that we  5 are proceeding upon the assumption that if we go to  6 the material that we've had since July and June, and  7 including the photographs which we've had for a much  8 longer period of time, we will find between the date  9 of October 17th, 1985, and March the 9th, 1987, the  10 raw material, so to speak, of what the witness has  11 been telling us this morning.  12 THE COURT:  Mr. Macaulay?  13 MR. MACAULAY: I have no submission.  14 THE COURT:  Yes.  Thank you.  Mr. Rush?  15 MR. RUSH:  For the most part I can assure my friend that the  16 evidence which has been given this morning by Mr.  17 Sterritt is contained in documents which have been  18 disclosed.  I cannot say that is so in respect of all  19 of the evidence because it would take a significant  20 task to distinguish between the notes which were  21 disclosed on September the 2nd and 7th and those which  22 were disclosed earlier.  23 And what Mr. Goldie's question really is all about  24 is, is there anything in the notes of September 2nd  25 and September 7th which is material upon which Mr.  26 Sterritt relies?  And I cannot say for a hundred per  27 cent that the evidence up to now, that that is so,  28 because there is a body of notes there which I haven't  29 compared.  So I cannot say fully that that is so, and  30 in that sense I suppose we join issue on the question  31 of the notice.  32 What I can say, My Lord, is this on this issue,  33 that on the 20th of 19 — June 20th of '88 the  34 plaintiffs took the position that, subject to the  35 disclosures which had been made, that the notes which  36 had been generated by Mr. Sterritt as a result of  37 discussions with hereditary chiefs after the  38 commencement of the court case, were privileged  39 because he was acting as agent and under instructions  40 of the lawyers.  41 Now, not in all cases was that so because many  42 notes after 1984 had been disclosed.  When the  43 decision was taken to have Mr. Sterritt called as an  44 expert, it was our view that we could no longer  45 sustain the position that the notes that were provided  46 or taken by Mr. Sterritt and provided to counsel were  47 protected by privilege.  Mr. Sterritt was then asked 7630  Submission by Mr. Rush  1 to obtain and organize all of the notes for counsel  2 after the case was adjourned, and it took a -- it was  3 a substantial task and it took until the later part of  4 August and the first part of September to pull the  5 notes together to organize them and copy them, for  6 counsel to review them, and for those notes to be  7 disclosed to my learned friends.  And that was the  8 reason for the delay.  9 Having said that, there are a good many of the  10 documents that were contained in the bulk of the notes  11 that were disclosed on the 2nd and 7th of September,  12 which had already been disclosed and we could not, at  13 that point, distinguish between what had been  14 disclosed and what hadn't and so what we knew was the  15 duplicates, we just simply said we took the position  16 that the duplicates, whether disclosed or not, should  17 be contained in the material that was disclosed on the  18 2nd and 7th.  19 I can tell Your Lordship that notes were disclosed  20 in, for example, a sample binder at a time when we had  21 hoped that producing a documentation of the notes for  22 a sample territory, which was the Geel territory,  23 might assist all of us in determining if it was  24 necessary to go through the process of disclosing all  25 of the notes for each and every one of the  26 territories. At that time during the discovery of Mr.  27 Sterritt in April of 1987 there was a considerable  28 body of notes that were disclosed and in fact a good  29 deal of the testimony this morning in relation to the  30 northern territory had to deal with the very notes  31 that were the subject matter of that disclosure in  32 April of 1987.  33 In addition to that, approximately in excess of  34 150 pages of looseleaf notes were disclosed by letter  35 to the defendants on June 20th, 1988.  Most of those  36 notes, as I understand it, are duplicates of copies of  37 those that are contained within the body of material  38 that was disclosed on the 2nd and the 7th.  In  39 addition to that, there is a host of interviews of Mr.  40 Sterritt and other researchers and hereditary chiefs  41 which are taped and some of the notes that are  42 contained in the material in the 2nd and 7th  43 disclosures are in fact Mr. Sterritt's notes of taped  44 interviews which had long before been disclosed.  45 What in sum I'm saying is there has been a  46 substantial body of disclosure to my learned friends  47 which Mr. Sterritt has obtained in his many interviews 7631  Submission by Mr. Rush  1 and telephone conversations, and so on, with the  2 hereditary chiefs.  There are certainly some that I  3 know of that have been disclosed for the first time,  4 and most of these notes disclosed for the first time  5 involve discussions with hereditary chiefs which  6 occurred after the decision was taken by counsel in  7 the summer of 1987 to prove the territories of the  8 chiefs by way of affidavit.  9 Now, that doesn't mean to say that there aren't  10 some other notes before that period that Mr. Sterritt  11 took.  In effect, what we asked him to do was to get  12 everything and there were bits and pieces of various  13 small three-ringed notes that he had collected.  And  14 it was our effort to try to pull all of these  15 together, and when I say that I cannot assure my  16 friend as to whether or not Mr. Sterritt relied on  17 these notes, we couldn't in every case make a decision  18 that there was reliance on the notes but we felt that  19 it was better to disclose them than to try and make  20 the decision in the time that we had.  21 Now, the position that I take is that with respect  22 to those notes that had not been previously disclosed,  23 that we could not have disclosed those, given what we  24 considered to be the correct position of the privilege  25 attached to those notes as Mr. Sterritt, being our  26 advisor, with respect to notes of conversations that  27 led eventually to drafts and assisting in the making  28 of drafts and eventually the final affidavit for the  29 Gitksan and some of the Wet'suwet'en witnesses.  And  30 when it was clear to counsel that Mr. Sterritt was  31 going to be an expert and have to refer to notes to  32 support conversations he had with hereditary chiefs,  33 they were disclosed.  34 Now, in my submission, My Lord, the position taken  35 really by counsel in these circumstances is supported  36 by the authority of His Lordship Mr. Justice Finch in  37 the Vancouver Community College and Phillips Barratt  38 case and his summary of the law at page 298, which I  39 can say amounts to this:  That when the expert takes  40 the stand or is determined to be an expert, his notes  41 are disclosable.  42 And it is our position that, firstly, the status  43 of Mr. Sterritt as an expert was not, up until we had  44 made the decision I believe on the 28th of June, one  45 that would have caused us to look to assemble these  46 notes in a timely way so that they could be disclosed  47 thereafter.  It was our position they need not be 7632  Submission by Mr. Rush  1 disclosed.  However, in respect of this authority, it  2 was our view that Mr. Sterritt would be required to  3 produce those and may be required to justify in each  4 and every conclusion that he arrived at with respect  5 to the external boundaries may be required to point to  6 notes of conversations that he took, and in respect of  7 that, we chose to disclose those notes.  We asked him  8 to obtain -- and principally the principal task was  9 organize those notes, and those are what are  10 disclosed.  11 In our submission, we could not have acted more  12 quickly, and if Your Lordship finds that when my  13 friend refers to Section 11 of the Evidence Act that  14 the fact that is there referred to is the notes and I,  15 in my submission, I don't -- I do not accept the  16 proposition that a fact, as referred to in Section 11,  17 are the notes upon which the expert relies.  And I say  18 this because if the facts are apparent either in the  19 body of the written statement supplied to the opposite  20 side, then surely it's not encumbant until such time,  21 based on Mr. Justice Finch's decision, surely it's not  22 encumbant upon the party presenting the written  23 statement and the expert to disclose those notes until  24 that party takes the -- excuse me, until the witness  25 takes the stand, and any privilege that may have  26 attached as advisor to the party, is waived.  And it's  27 our position that the meaning of facts on which the  28 opinion is formed has been furnished and does not  29 stretch to include the notes.  30 Now, in my submission, if I'm wrong on that, then  31 I say, My Lord, that there is a discretion in 11 to  32 allow you to enlarge the time and I would ask you to  33 do so if you find that these notes are the facts that  34 are referred to and contemplated in 11 (1), to permit  35 the opinions such that they have been given up to now  36 to -- those opinions to be given on the basis of the  37 notes which have been disclosed to my learned friends.  38 In my submission, My Lord, the material that has  39 been disclosed to date, and I'm here excluding the  40 September 2nd and 7th, but including the affidavit  41 material of the individual Gitksan witnesses, is, in  42 my submission, ample to negate any suggestion of  43 prejudice.  And it's my submission that there is no  44 argument here, given the disclosure in respect of  45 those affidavits and in respect of the earlier notes  4 6 that have been provided that have come from Mr.  47 Sterritt, including I might add the evidence of the 7633  Submission by Mr. Rush  Submission by Mr. Goldie  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.  THE  RUSH:  COURT  photographs, which I think also in their extreme  breadth provide the basis for further notes upon which  Mr. Sterritt relied, that there is no basis for a  suggestion of prejudice here, and I ask that if Your  Lordship is concerned about this that the time within  which these facts should be or should have been  disclosed be enlarged to permit the disclosure within  the time frame that's been given.  :  Thank you.  Before I call Mr. Goldie, I have heard  today in your submission you alluded to an opinion or  report of Mr. Sterritt.  I haven't seen that, have I?  No.  THE  MR.  THE  MR.  There is a report that I'm going to get at some  point is there?  MR. RUSH:  There was a summary of an opinion that was prepared  on March 9th of 1987.  The plaintiffs are not relying  on that.  It was submitted -- it has been referred to  and it's been submitted to the other side.  COURT:  I see.  All right.  RUSH:  There is a written statement that has been prepared  for Mr. Sterritt -- by Mr. Sterritt, rather, and that  written statement can be -- will be made available at  the appropriate time.  COURT:  Right.  All right.  Thank you.  Mr. Goldie?  GOLDIE:  My Lord, perhaps I should comment further on the  question of the opinion of March 1987.  That document  contained a metes and bounds description and referred  to a map, although the map was not attached, but Your  Lordship has now seen that map.  THE COURT:  Yes.  MR. GOLDIE:  My understanding is that that opinion has been  withdrawn because, of course, as the witness explained  this morning, the map that he said was an accurate map  turns out not to be.  Now, we do have a one page  opinion that was given us in June of this year when  Mr. Sterritt was qualified as an expert and it differs  from the opinion which Mr. Sterritt was going to give  in March of 1987.  That one page opinion, one page  summary, does not state any facts upon which the  witness relies for his opinion.  And it's simply  confirmed, and the absence of any fact simply  confirmed our understanding that the facts relied upon  were those found in his notebook and in his  photographs.  I think I can put to one side my friend's  submission with respect to the Phillips Barratt case.  The notes referred to there were not, according to my 7634  Submission by Mr. Goldie  1 understanding, the facts upon which the expert relied.  2 They were notes in the more conventional sense,  3 calculations and things of that order.  But what we  4 come back to, My Lord, is the fact that we either have  5 facts relied upon in the form of these notes or we  6 have no means of dealing with the witness' evidence.  7 We have no means of confirming the witness' statement  8 that he has taken information given him by an  9 informant and accurately transcribed or accurately  10 conveyed that to the map-maker.  11 My friend referred to his letter of June the 20th,  12 1988 when he -- which covered the delivery to us of  13 looseleaf notes and field notebooks and he said there  14 is other material but that is privileged, and we took  15 that to mean literally what it was, that Mr. Sterritt  16 had gone out at the instructions of counsel and made  17 notes for the use of counsel.  That material comprises  18 about one-half of those four volumes -- a quarter, I  19 beg your pardon, a quarter of those four volumes.  20 Those four volumes contain the documents that were  21 delivered on the 2nd and 7th of this month, so as far  22 as we know, three-quarters of that material is new.  23 Now, my friend speaks of prejudice.  The material  24 that was delivered to us in June and earlier -- well,  25 speaking only now of the material delivered in June,  26 that covered mainly the period from '76 to '79.  The  27 material that we were given on September the 2nd and  28 the 7th contains a good deal of more recent material,  29 and it is material which would have been invaluable in  30 the examination of witnesses who have been in this  31 courtroom or witnesses who have been examined on  32 commission or witnesses who were examined as late as  33 the week of the 29th of August.  34 For instance, in one batch of material we find  35 extensive notes with respect to Mr. Walter Wilson.  He  36 was examined in Smithers on I think the 31st or the  37 1st of September.  Those notes would have been  38 invaluable in his cross-examination.  There is in the  39 material delivered on the 2nd of September extensive  40 notes with respect to Mr. Stanley Williams.  Well,  41 Your Lordship has seen Mr. Williams and those notes  42 would have been of considerable assistance to us in  43 his cross-examination.  Notes with respect to Pete  44 Muldoe.  Notes with respect to Sam Morrison.  All of  45 these, as we understand them, constitute notes of  46 information given by those people with respect to  47 territories. 7635  Submission by Mr. Goldie  1 Now, they were called here.  They gave evidence  2 with respect to territories.  Your Lordship has heard  3 them cross-examined and Your Lordship would know the  4 value that would be obtained by having a statement of  5 the witness himself as recorded by Mr. Sterritt.  6 Indeed, in the case of James Morrison we did have some  7 notes recorded by Mr. Sterritt.  The witness in that  8 case happened to contradict those notes.  In other  9 cases he might have adopted them or modified it or  10 qualified them.  11 He has notes of interviews with Mary Johnson.  12 And, My Lord, you may recall that Mary Johnson was a  13 witness whose territory was changed quite drastically  14 and the notes, so far as I understand them, at the  15 present time, would have assisted materially in  16 eliciting the basis upon which that change was made.  17 I have some difficulty in following my friend's  18 submission but, as I understand it, he is saying, yes,  19 for the most part what Mr. Sterritt relies upon is in  20 the notes.  Well, if that's the case they are the  21 facts upon which he relies.  But he appears to be  22 saying, even that being so, you haven't experienced  23 any prejudice.  24 Now, I have referred to prejudice in the case of  25 prior witnesses.  I have said nothing about the  26 examination we're going to have to make with respect  27 to that for this witness and we're going to be dealing  28 with this witness I anticipate, from my friend's  29 timetable, next week.  30 In my submission, once my friend came to the  31 conclusion that he was going to waive privilege, and  32 from my note of his submission to Your Lordship it was  33 in June of this year, then he was duty bound to do  34 everything in his power to provide us with this  35 material.  And, in my submission, all he had to do was  36 to take the material withheld on June the 20th and say  37 "Here it is.", but even that wouldn't have been  38 complete.  39 THE COURT:  Well, has the material withheld up to June 20th been  40 delivered now?  41 MR. RUSH:  Yes.  42 THE COURT:  And that was the September 2nd and 6th, was it?  43 MR. RUSH: 7th.  44 MR. GOLDIE:  7th, My Lord.  I wrote to my friend after receiving  45 this batch of material on the 2nd.  I wrote to him  46 reminding him that he had claimed privilege in respect  47 of matters that appear to be -- match exactly the 7636  Submission by Mr. Goldie  Ruling by the Court  1 description of the documents delivered on the 2nd and  2 he replied on the 7th with the additional documents.  3 THE COURT:  So the question now is whether or not that material  4 includes everything that the witness is giving in  5 evidence or not.  6 MR. GOLDIE:  That's the first question, because if there's — I  7 have an objection to anything that isn't contained in  8 that material, that is what I will call fresh  9 evidence.  10 THE COURT:  Based upon the requirements of notice?  11 MR. GOLDIE:  Based upon the requirements of notice, and also if  12 it isn't recorded anywhere and it purports to be  13 information gained after the writ was issued, then  14 that's a double reason for saying it should be  15 excluded.  16 THE COURT:  I'm not sure I agree with Mr. Goldie on the question  17 of information obtained after the writ was issued.  18 Surely one can collect evidence to support a cause of  19 action after the writ is issued.  It doesn't create a  20 new cause of action.  21 MR. GOLDIE:  Oh, I quite agree.  As a matter of fact, what I  22 have in mind is evidence obtained after the writ was  23 issued and after witnesses have been examined.  24 THE COURT:  Well, I don't know any way to solve this problem in  25 the absence of specific details of what is said in the  26 witness box that is not in the notes.  It seems to me  27 that Mr. Goldie's point is, I was going to say is  28 valid, but I'm going to say it's stronger on the  29 ground of notice, and one perhaps doesn't have to go  30 any further than that if the notes don't contain  31 anything about evidence the witness is going to give.  32 And if it is part of the mass of information upon  33 which the opinion of the witness is based, then it  34 can't be given without notice.  But how can I deal  35 with this if I don't know whether every piece of  36 evidence he's going to say is in the notes or not?  37 Now, Mr. Rush says, "Well, it isn't a fact upon  38 which the opinion is based.", but I suspect it is, is  39 it not, Mr. Rush?  If witness X tells Mr. Rush "Our  40 boundary isn't here, it's there.", and his conclusion  41 is the boundary is there rather than here, then that's  42 a fact upon which the opinion is based.  What I'm  43 looking for is a practical way out of this problem.  I  44 don't think it's going to be fatal to either of your  45 cases or nor is victory or defeat hanging in the  46 balance, but we have a practical problem here.  47 MR. RUSH:  My Lord, when the position was taken that Mr. 7637  Submission by Mr. Rush  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  Sterritt would be called as an expert, we acted as  quickly as we could and in the best of all possible  worlds we would have got those notes to him -- to my  learned friend as soon as possible, but the  illustration of the difficulty between the 2nd and 7th  letter is that what was contained in the 7th letter,  the notes were not, by a pure office oversight,  photocopied when they were told to be photocopied.  And what I say, My Lord, in that I say only by way of  an example of the difficulties that were encountered  in terms of getting these notes to my learned friend.  But evidence that Mr. Sterritt is giving in  respect of the support for his opinions is based on,  among other information, all of the information which  has, and the notes, which have been disclosed.  In  addition to that, there is a vast amount of evidence,  or at least material, that has already been disclosed.  So what I say to Your Lordship is that there have been  I think some 12 field notebooks, for example, that  were disclosed for the purpose of Mr. Sterritt's  discovery.  MR. GOLDIE: During Mr. Sterritt's discovery.  MR. RUSH:  And for the purposes of the evidence that Mr.  Sterritt will be giving, he'll of course rely on those  field notebooks and other information.  And I can say  that I have asked Mr. Sterritt whether or not there  are some situations in which he didn't take notes, and  there are.  There are no notes in respect of some very  few communications because he wasn't in a position to  take them.  And I take issue with the proposition that  Mr. Sterritt is obliged to have copied every item of  information on to a note that can be disclosed.  THE COURT: Well, that's not the problem. The problem is, can he  give the evidence without prior notice to your learned  friends?  MR. RUSH:  Well, that's the immediate issue.  THE COURT:  And the notes are the most convenient way of giving  the notice, but without the notes well, then there's  no other form of notice that I've heard about.  MR. RUSH:  Well, that's correct.  What I say is that there are  other ways in which that information came to my  learned friend, but in respect of the evidence that's  being tendered now, the notes -- there are notes, I  believe, which pertain to the changes that have been  referred to by Mr. Sterritt and are contained in the  body of notes which were disclosed on the 2nd and 7th.  THE COURT:  Well, Mr. Rush, I'm disposed to make a — to 763?  Ruling by the Court  Submission by Mr. Macaulay  1 decisively make a reasonable ruling here, and I merely  2 say that I think the objection is one that probably  3 has some merit, but that I don't think you should hold  4 up the evidence and I think I should hear the evidence  5 subject to the objection.  If it turns out that proper  6 notice hasn't been given, either by notes or  7 otherwise, then it seems to me the evidence is not  8 admissible, or it may not be admissible, but I don't  9 think either of you are in a position to say there is  10 notice of this evidence and there isn't notice of that  11 evidence.  And I don't know what else to do except  12 carry on with the evidence, subject to the objection.  13 MR. GOLDIE:  Well, I —  14 MR. MACAULAY: My Lord, there are two things —  15 THE COURT:  Mr. Macaulay?  16 MR. MACAULAY:  — arising out of this one Mr. Goldie has  17 referred to, that is the examination of witnesses in  18 the last few weeks whose statements on subjects on  19 which the witnesses were cross-examined appear in  20 these notes.  A remedy, and I submit it's an  21 appropriate remedy, is that those witnesses, Mr.  22 Blackwater and others, be made available for  23 cross-examination again on the notes, if either of the  24 defendants choose to do so.  25 The other though has to do with a witness who's  26 coming up, Mr. Daly.  We have been corresponding with  27 the plaintiffs for some time about Mr. Daly's notes.  28 The position taken by the plaintiffs is that the  29 documents that we asked for need not be disclosed  30 until 60 days before the witness gives evidence.  We  31 are coming perilously close, in fact, we may be within  32 that 60 day period, and it will happen all over again.  33 These are facts on which Mr. Daly relies and in fact  34 he says in the report that's just delivered to us that  35 he has made those documents available to the court.  36 Of course, that anticipates some future delivery of  37 these documents, but we'll be at this again.  38 THE COURT:  Well, your friend has notice, warning.  3 9 MR. MACAULAY: Well, yes, but —  4 0 THE COURT:  I'm not sure what I can do about that though, Mr.  41 Macaulay, unless you have a suggestion.  42 MR. MACAULAY: Well —  43 THE COURT:  What ruling can I make either qui timent or in  44 terrorem.  45 MR. MACAULAY: I'll have to make an application, a formal  46 application then, My Lord, for production forthwith of  47 those documents. 7639  Submission by Mr. Goldie  1 THE COURT:  Well, I think that would be the proper focus.  2 MR. MACAULAY: We have the schedule now and we'll see when he's  3 coming up.  4 THE COURT:  Yes.  Well, I think you should speak to your friend  5 about that and arrange a time to make that  6 application.  7 MR. MACAULAY: Yes, My Lord.  8 THE COURT:  Mr. Goldie?  9 MR. GOLDIE:  My Lord, as a practical matter I have no objection  10 to the witness continuing with his evidence.  That was  11 the position that I took when Mr. Sterritt was  12 transformed from a lay witness into an expert witness.  13 THE COURT:  Yes.  14 MR. GOLDIE:  And it was thought that he would finish his  15 evidence in chief by the 8th of July and of course if  16 that had been the case we would have had these  17 documents and nobody could raise any -- we should have  18 had these documents and nobody could raise any  19 questions.  My concern is that, having proceeded on  20 the assumption that we had all his notes except those  21 which were privileged, we've prepared our  22 cross-examination on that basis.  Now I'm now  23 hearing -- well, I now know that I've got four volumes  24 of notes to cope with, only a quarter of one of which  25 is a duplicate of what we already have, and my  26 cross -- the preparation for my cross-examination is  27 now foreshortened to four days.  28 I think the least that my friend can do is to  29 identify in the notes the areas of evidence that the  30 witness relies upon.  We'll deal with the question of  31 whether he's relying upon oral conversations in  32 respect of which he took no notes.  We'll deal with  33 that in cross-examination.  But if we're going to come  34 anywhere near complying with the intention of the  35 section, then the very least he can do is to provide  36 us with a statement, "These are the facts upon which  37 the witness relies in respect of...", and then the  38 evidence that he's giving.  39 Now, we could have worked that out ourselves over  40 the summer holidays, and in fact we thought we had,  41 but now we've got a whole new batch of stuff to look  42 at.  That's the prejudice.  And as a practical  43 proposition let him continue, but let my friends  44 provide us with exactly what the section contemplates,  45 namely, the facts upon which the opinion is formed.  4 6 THE COURT:  My problem is I haven't yet figured out what the  47 opinion is that is going to be expressed. 7640  Submission by Mr. Goldie  1 MR. GOLDIE:  Well, the opinion in its ultimate is going to be  2 that map 9 A is an accurate representation of the  3 territories.  4 THE COURT:  Yes.  5 MR. GOLDIE:  There's some intervening suggestions to which some  6 objections may be taken but, as I understand it, the  7 opinion which he's entitled to give, according to Your  8 Lordship's ruling, is that "What I heard has been  9 transferred as accurately as my skill enables me, in  10 conjunction with Mr. Marvin George, to that map.".  11 THE COURT: Would the problem be ameliorated, if not solved, if  12 you were to have a brief time, Mr. Goldie, say a week  13 for further preparation of your cross-examination?  14 MR. GOLDIE:  Well, based upon the time it took us to correlate  15 the field notes that we did have, I think that's  16 probably reasonable, but I still feel that it's going  17 to save time in the courtroom, as well as our time, if  18 we were told "The notes taken by Mr. Sterritt with Mr.  19 Blackwater on such-and-such a day are the facts upon  20 which I rely upon in respect of my final opinion."  I  21 don't see what's so difficult about that.  The witness  22 says "I went back and I found it and I got more  23 accurate information."  Well, that means he discarded  24 what went before.  So all he's got to do really is to  25 take a look at his last set of notes, that I assume is  26 what he's relying upon as the final version.  27 THE COURT:  I expect the problem is a little more  28 multi-dimensional than that.  I expect the witness  29 will say "I arrived upon all this information and  30 including that last interview and I weighed it and  31 assessed it and I've made the best judgment I can on  32 it."  It isn't as simple an illustration as you've  33 just made.  But apart from that, I'm very reluctant to  34 make an order that one side will do something for the  35 convenience of the other side.  36 At one time the plaintiffs persuaded Judge Dohm to  37 have the defendants classify all their documents into  38 issues as I recall.  I think you just get into further  39 sub-arguments when one side is given a task that's  40 been -- the specification for which has been prepared  41 by the other side, and I'm reluctant to do that.  I  42 would much prefer it if the delivery of this volume of  43 material at this time has caused you difficulty, Mr.  44 Goldie, I'd rather give you time to prepare your  45 cross-examination, but I haven't heard Mr. Rush on  46 that question yet.  47 MR. RUSH:  On the point about whether the notes were discarded 7641  Submission by Mr. Rush  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. RUSH:  or something happened to notes, I think Your  Lordship's insight into the question of the  information that is gathered is more accurate and that  is that there's a body of information which  cumulatively --  I think what Mr. Goldie was implying wasn't that the  notes were discarded in the physical sense, it's just  that they were displaced as the source of reliance.  And what I say is that there is a body of cumulative  knowledge that has come to Mr. Sterritt and that  eventuality may or may not have happened, depending  upon a particular feature or a particular boundary.  With regard to the suggestion of deferring the  cross-examination, I am extremely reluctant to do  that.  I think I would be more amenable then, Your  Lordship, to try and find other ways of assisting my  friends, if that's necessary, to proceed with the  cross-examination at the conclusion of the direct.  But, I do want to say one thing here.  Mr. Sterritt is  not being called for the purposes of validating  Exhibit 9 A.  If my friend is under that assumption,  then I have to put it straight.  Exhibit 9 A was  drafted by Mr. Marvin George on the basis of  affidavits that were provided to him by the hereditary  chiefs.  Now, that was the whole point of the process at  one time thought to shorten the trial. The wheel point  of that affidavit process was so that the precise  knowledge of the hereditary chiefs could be placed in  a convenient and written way and it was on the basis  of that that Exhibit 9 A was drafted.  And I can tell  Your Lordship that that is precisely the position that  we will take in respect of Mr. Marvin George's  evidence who will be called to give evidence about how  it was that the affidavit material was transferred on  to a flat two-dimensional map.  Mr. Sterritt's evidence, in terms of his  expertise, goes to questions of the process that was  involved in the making of various maps and the state  of the knowledge that was known at various junctures  of time throughout the preparation of the maps, and  knowledge was obtained more deeply and more precisely  throughout the continuum of that process.  And it is  to that that, in part, Mr. Sterritt's evidence is  directed.  He will also give certain evidence in  respect of his knowledge of the territorial  boundaries, the territoriality of the chiefs' claim to 7642  Submission by Mr. Rush  Ruling by the Court  1 specific areas and as well the place names, and  2 validate that process for Your Lordship.  3 But I do want to say that if it comes down to a  4 question of adjourning the cross-examination, I would  5 be, subject to discussion with my clients and Mr.  6 Grant, be more open to Mr. Goldie's suggestion that if  7 it's a difficulty of organizing the notes that he has,  8 then I would like to assist him in that respect, if it  9 can be done.  10 THE COURT:  All right.  Well, I think that the decision can't be  11 made now.  You have an opportunity to consider what  12 you can do to meet your friend's difficulty.  The idea  13 of an adjournment for cross-examination is one that I  14 threw out as a possibility.  If nothing else can be  15 done, it may be necessary to do that, but I think that  16 if something can be worked out that will remove the  17 difficulty Mr. Goldie describes, it must be fairly  18 soon.  He can't be presented with something at the  19 last moment before his cross-examination begins.  20 I'm firmly of the view we ought to carry on with  21 the trial.  Mr. Goldie doesn't oppose that and I'm  22 sure Mr. Macaulay doesn't, and if I can pass the buck  23 here, you people have a problem that I hope you can  24 resolve, if not at the moment I don't see anything --  25 I don't see an alternative but to -- sometime to  26 review the mass of material that Mr. Goldie says he's  27 received quite recently and that's really as far as I  28 can take it now.  29 Are you ready to carry on with the witness or  30 perhaps we should take the afternoon adjournment now?  31 THE REGISTRAR: Order in court.  Court will recess.  32  33 (PROCEEDINGS ADJOURNED AT 3:00 p.m.)  34  35 I hereby certify the foregoing to  36 be a true and accurate transcript  37 of the proceedings herein to the  38 best of my skill and ability.  39  40  41 Tanita S. French  42 Official Reporter  43  44  45  46  47 7643  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  N. Sterritt (For Plaintiffs)  In Chief by Mr. Rush  (PROCEEDINGS RESUMED FOLLOWING SHORT RECESS AT 3:15 P.M.)  NEIL STERRITT, Resumed:  EXAMINATION IN CHIEF BY MR. RUSH:  (Continued)  THE COURT:  Yes, Mr. Rush.  MR. RUSH:  Yes, my lord.  Just before I recommence, continue the  examination of Mr. Sterritt, I just want to point out  that the impression that you may have been left with  in terms of the submission that Mr. Goldie had made to  you about the notes was that there was no organization  whatsoever to these notes.  GOLDIE:  I didn't say that.  MR.  MR.  THE  MR.  RUSH:  I know you didn't say that.  COURT:  I didn't gain that.  RUSH:  I am saying the impression that his lordship may have  been left with.  And the point I want to make is that  the notes themselves are organized by the name,  English name of the individual, and by date, and one  of the features of the examination that has -- that we  tried to focus on with Mr. Sterritt was to state who  the informants are that have provided him with  information and approximately the time that  information was provided.  And I intend to continue to  do that and in this way I hope that will be of some  assistance to my friends in terms of how to deal with  those notes.  MR. GOLDIE:  My lord, I assumed that.  I said I assume that I  can go to the notes and I can find the facts relied  upon.  And it was -- the disturbing feature was my  friend's statement, well, maybe not.  Quite apart from  that, if -- that's the way we have proceeded so far  and I have no doubt that that's what I will find when  I deal with these other volumes but still we haven't  had the notice that is required for an ordinary  cross-examination.  THE COURT:  All right.  Thank you.  The last note I have, Mr. Rush, is that we are  talking about the changes that were made were  reflected in the map dated May 2nd, '87, which was  attached to the amended statement of claim on May 11,  1987.  That's the last note I have.  MR. RUSH:  That's correct, my lord.  I am going to produce to Mr. Sterritt now, my lord,  a copy of the map that was attached to the statement  of claim of May 11th, 1987.  And I believe that it 7644  N. Sterritt (For Plaintiffs)  In Chief by Mr. Rush  1  2  THE  COURT  3  MR.  RUSH:  4  Q  5  6  7  8  9  10  11  12  13  THE  COURT  14  MR.  RUSH:  15  16  17  18  19  Q  20  21  22  23  A  24  THE  COURT  25  A  26  THE  COURT  27  MR.  RUSH:  28  Q  29  30  31  32  33  34  35  36  37  A  38  THE  COURT  39  40  41  A  42  MR.  RUSH:  43  THE  COURT  44  45  MR.  RUSH:  46  47  THE  COURT  should be in the trial record that you have.  :  Should I get it out?  Yes, if you like.  Showing you a map that on its face is circled and  contained within the circle is the description,  External Boundaries of the Gitksan-Wet'suwet'en  Territory, dated May 2nd, '87.  And my map here, my  lord, has a red circle around May 2nd, '87 and around  the words I have just quoted, and it contains in black  Magic Marker, map number 6, and then that's stroked  out and it's map number 5 and I am instructed that  those are Mr. Skoda's writings.  :  Where is the red circle?  This is on my copy, because this was the copy that  was handed to Mr. Skoda and that's indicated by his  initials in the bottom right hand corner, indicating  map 6 and then he stroked that out and it's map 7.  And over his signature, Al Skoda, June 8th.  Now, I just want to show you this map, Mr. Sterritt,  and I wonder if you can identify that map?  It's a map  of the external boundaries of the Gitksan-Wet'suwet'en  territories, as of the date May 2nd, 1987.  Yes, that is correct, the map, that is the map.  :  As of May 2nd?  Yes.  :  All right.  And you have looked at, I think, overlay map number 7,  and that, my lord, is indicated it's not an exhibit,  it's identified in the same way as this map, save and  except for the fact that it indicates that it was  Schedule "B" to the amended statement of claim filed  May 11th, 1987.  That's the green line on the overlay.  And to your eye, Mr. Sterritt, is that green line a  representation of the boundary that shows on map --  the map here that's dated May 2nd, 1987?  Yes, it is.  :  I am sorry, you're telling me that map 7 of the  overlay is the same as the map that's attached to the  statement of claim of May 2nd?  Yes.  That's correct.  :  If it's not the same map it shows the same  boundaries?  That's right.  I am happy to have your -- a copy of  your map filed as the exhibit, my lord.  :  It's not already in anywhere? 7645  N. Sterritt (For Plaintiffs)  In Chief by Mr. Rush  1 MR. RUSH:  No, it's not an exhibit.  And I am also a happy to  2 have this marked as an exhibit, but I don't see any  3 point in marking two.  4 THE COURT:  The map that's attached to the statement of claim  5 dated May 2nd, 1987 may be the next exhibit.  6 MR. RUSH:  It should be probably an exhibit for identification,  7 because it was prepared by Mr. Marvin George.  8 Q   Is that right, Mr. Sterritt?  9 A   Yes.  10 THE COURT:  Any objection, Mr. Goldie?  Mr. Macaulay?  11 MR. GOLDIE:  No, my lord.  12 MR. MACAULAY:  No, my lord.  13 THE REGISTRAR:  Exhibit 681, my lord, for identification.  14  15 (EXHIBIT 681 FOR IDENTIFICATION: MAP DATED MAY 2ND, 1987)  16  17 THE COURT:  All right.  Thank you.  18 MR. RUSH:  19 Q   Now, Mr. Sterritt -- I am sorry, just before I go to  20 that, my lord, may the overlay map 7, that's -- that  21 shows the boundary outlined in green, be marked as the  22 next exhibit in the series dealing with the overlays?  23 THE COURT:  No objection?  Yes.  24 THE REGISTRAR:  That will be Exhibit 646-7.  25  26 (EXHIBIT 646-7 FOR IDENTIFICATION: OVERLAY MAP)  27  28 THE REGISTRAR:  Would that be marked for ID?  29 MR. RUSH:  Well, the map attached to the statement of claim is  30 marked for identification.  31 MR. GOLDIE:  I think we have been doing the overlays also.  32 MR. RUSH:  Yes.  33 THE COURT:  All right.  It will be 646-7, ID.  34 THE REGISTRAR:  Thank you.  35 MR. RUSH:  Thank you.  36 Q   Now, Mr. Sterritt, I wonder if you would look at the  37 two overlays and direct your attention in particular  38 to the overlay that you referred us to this morning,  39 that is map number 6, and compare that, if you will,  40 to map number 7, that's just been marked Exhibit 646-7  41 for identification.  646-7.  Are there any changes  42 that you can see between those two maps?  43 A   Yes, there are.  44 Q   Now, were there changes between map 7, which is the  45 overlay, and the metes and bounds description that was  46 part of your summary of opinion on March 9th, 1987?  47 A   Yes. 7646  N. Sterritt (For Plaintiffs)  In Chief by Mr. Rush  1  Q  2  3  THE  COURT  4  MR.  RUSH:  5  6  7  THE  COURT  8  MR.  RUSH:  9  Q  10  11  A  12  13  14  15  16  17  18  Q  19  A  20  21  22  23  24  25  26  27  28  THE  COURT  29  A  30  THE  COURT  31  MR.  RUSH:  32  Q  33  A  34  Q  35  36  A  37  38  39  40  Q  41  A  42  43  Q  44  45  A  46  47  All right.  Can you identify those changes for us,  please?  :  I'm sorry, these changes are what, please?  The changes between map 6 and map 7 on the overlays  and, as well, between the metes and bounds description  of the summary of opinion of March 7, 1987 in map 7.  :  All right.  Thank you.  If you can just identify the first such change, Mr.  Sterritt?  On the eastern border, and the changes are primarily  on the eastern border, at Chapman Lake, which is  somewhat east of Smithers, the boundary changed from  north-south line running along the west shore the  Chapman Lake to the height of land west of Chapman  Lake.  And that is, once again, a reduction in area in  the area of the territory.  You just point that out to his lordship, please.  I am just looking for Smithers to locate it so that --  Smithers is here so you go almost directly east of  Smithers to Chapman Lake.  About halfway between  Smithers and Babine lake.  There may be a point of --  yes, on the small map there may be the mark, the point  of commencement, and point of commencement is where  the change begins.  Chapman Lake is just above the  line, or the statement, point of commencement.  There  is a block that changes there.  :  The change is shown on number 7, is it?  Yes.  The change is between map 6 and map 7.  :  Yes.  Mr. Sterritt, who instructed you about that change?  The Wet'suwet'en hereditary chiefs.  Who, in particular, among the Wet'suwet'en hereditary  chiefs?  There was a number of them:  There was Alfred  Mitchell, Henry Alfred, Roy Morris, Madeline Alfred --  there were others.  There was about 15 people at that  meeting.  I don't recall all the names.  What meeting are you referring to?  It was an evening session in Moricetown where the  hereditary chiefs reviewed this area.  Do you remember about what time, what year that was  and -- time of year?  I believe it was around June of 19 -- no, it was  earlier.  It was prior to May 2nd, it was in the  spring of 1987. 7647  N. Sterritt (For Plaintiffs)  In Chief by Mr. Rush  1  Q  2  3  4  5  A  6  Q  7  A  8  Q  9  A  10  Q  11  A  12  13    I  MR. GOLD  14  15  16    I  MR. RUSH  17  Q  18  19  A  20  Q  21  22  A  23  24  25  26  Q  27  28  A  29  30  31  32  33  34  35  Q  36  37  A  38  39  40  41  42  Q  43  A  44  45  46  Q  47  All right.  And as a result of those instructions, you  concluded that the boundaries should be changed to the  point as it's shown on the map number 7 by the green  line?  Yes.  In that area?  Yes.  Was that information passed on to Mr. Marvin George?  Yes , it was.  All right.  Is there a second area on that --  I should mention that Alfred Joseph was at that  meeting as well.  EI:  My friend could oblige me to this extent, if he  could ask the witness to his recollection if he took  notes of this meeting.  This meeting you referred to of the 15 hereditary  chiefs, did you take notes there?  Not at that meeting.  Okay.  Did you take notes of -- did you make notes  later on of what was said?  I think that I had notes of the change prior to that  and it was discussed at that meeting whether or not  the boundary should be changed.  That's my  recollection.  Okay.  And who provided you with the information for  your notes?  The -- I think there were conversations between Alfred  Joseph, myself, I am not sure if we talked to Johnny  David or whether Alfred Joseph talked to Johnny David  and relayed the information back to me.  And then this  information was brought to this meeting and the  hereditary chiefs at that meeting recommended that  change.  All right.  Now, would you go to the next area of  change between those two maps, please?  Yes, it was all actually part of the same adjustment.  In this case the green line, the boundary crosses  Harold Price Creek and goes east of upper Harold Price  Creek and takes in more territory.  And it's all part  of the same change and part of the same session.  Okay.  And were the same chiefs involved?  Yes, it was in the same -- this was done in the same  meeting and part of the buildup to that session as  well.  All right.  Now is there a -- I think you mentioned  three changes? 7648  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  N. Sterritt (For Plaintiffs)  In Chief by Mr. Rush  A  Q  A  THE COURT  A  MR.  MR.  MR.  MR.  The other change was in the area of Tutadi Lake, where  territory was removed.  The dark line, the external  boundary moves into the green line.  All right.  And what was the basis for that change?  This arose out of the meetings in Burns Lake with the  Carrier-Sekani --  :  Sorry, could you show me where that is again?  Yes.  Tutadi Lake is under this line right along here,  and in the northeast corner.  Bear Lake is here so  it's this, the area between the dark line that you see  here and the green line.  That area there.  RUSH  Q  And is that territory which belongs to a Gitksan  hereditary chief?  A   Yes, the House of Nii Kyap.  Q   You were about to tell us what the basis was for this  change?  A   During the meetings that -- at Burns Lake, it was  mentioned that a death had occurred on that territory  sometime in the past, and as a result of that death it  was a Sekani family, a member of a Sekani family had  died, and a feast was held and members of the House of  Nii Kyap, in recognizing this death of a Sekani person  on their territory, turned the territory over to the  son of the Sekani chief.  And the -- as a result of  that information, we discussed it, and David Gunanoot,  Nii Kyap, and other members of the family, decided at  that point because of the uncertainty of what happened  subsequently, to withdraw that from the claim at that  point.  There was further information that comes out  later that leads to restoring that territory.  GOLDIE:  I object to that, my lord.  And I have a very  strong objection to that evidence.  RUSH  Q  with respect  Is a change subsequently made in that  to that boundary?  A   Yes.  Q   Subsequent to that date?  A   Yes.  Q   All right.  And as a result of the change that is  subsequently made, what occurs?  GOLDIE:  Well, just -- I have an objection to any change to  that, because it is based upon, as I read the  material, what this witness says he was told by David  Gunanoot after David Gunanoot gave his evidence on  commission and, in my submission, that is inadmissible  to introduce through this witness, something which 7649  N. Sterritt (For Plaintiffs)  In Chief by Mr. Rush  1  2  3  THE  COURT:  4  MR.  RUSH:  5  ]  6  7  8  9  10  1  11  12  THE  COURT:  13  1  14  MR.  RUSH:  15  THE  COURT:  16  ]  17  18  19  MR.  RUSH:  20  THE  COURT:  21  ]  22  MR.  GOLDIE  23  24  25  THE  COURT:  26  MR.  GOLDIE  27  THE  COURT:  28  MR.  GOLDIE  29  30  31  32  THE  COURT:  33  MR.  GOLDIE  34  THE  COURT:  35  MR.  GOLDIE  36  MR.  RUSH:  37  1  38  MR.  GOLDIE  39  MR.  RUSH:  40  41  MR.  GOLDIE  42  ]  43  44  45  46  47  contradicts of evidence of a witness given under oath  and not now available for cross-examination.  Is that your understanding, Mr. Rush?  No, it's not at all.  Firstly, it doesn't contradict  Mr. Gunanoot's commission evidence.  Mr. Gunanoot was  sparingly examined on the question of the territory,  there was virtually no examination in respect of that  territory, there is no, in my submission, no  contradiction of Mr. Gunanoot regarding that.  And I  don't accept my friend's proposition on that point at  all.  Well, as I understand it, Mr. David Gunanoot is now  deceased?  He is now deceased, yes.  And what I have is, from Mr. Goldie's theory, that  Mr. Gunanoot has given evidence on commission, that I  presume Mr. Goldie says that territory is excluded  from the claim?  No, he doesn't say that at all.  Mr. Goldie says it is.  I think that's your theory,  Mr. Goldie?  : He was examined in chief and to the extent that he  gave evidence, as I read his evidence, he agrees with  this map up here, and I say this map up here, it's --  The one that shows that territory.  :  The one that shows that territory as excluded.  Yes.  :  Now, at this time, this witness comes along and  says, basing his evidence on an affidavit in which he  states Mr. Gunanoot told me this, he now seeks to  restore this territory.  Whose affidavit is it?  :  It's Mr. Sterritt's affidavit.  Not Mr. Gunanoot's affidavit?  : No.  If Mr. Gunanoot said anything about a map, which I  doubt --  :  Well, he didn't.  He did not address that map which shows it excluded,  he addressed the map which showed it included.  :  Well, of course, Mr. Gunanoot didn't refer to a  map.  He referred to Tutadi Lake and Creek and things  like that.  But the fact of the matter is, that  that -- when he was examined it was claimed in this  case that that territory was excluded.  Now, I say if  they were going to re-institute a claim, based upon  what Mr. Gunanoot stated, then the only proper thing 7650  N. Sterritt (For Plaintiffs)  In Chief by Mr. Rush  1 to do is recall Mr. Gunanoot, because this was known  2 before he died, obviously.  3 THE COURT:  Mr. Goldie, why doesn't this go as to weight?  Here  4 we have a statement about title made by a deceased  5 person, which is, under my previous rulings, is prima  6 facie admissible, and is it not a matter of weight  7 that you can, in due course, introduce, or if it's  8 already in, as I expect it is, refer me to the passage  9 where Mr. Gunanoot said something different, thus  10 questioning the or raising a question as to the  11 correctness of the statement attributed to Mr.  12 Gunanoot by this witness?  13 MR. GOLDIE:  Well, of course I can do that.  But in my  14 submission, the -- when a witness is examined, that it  15 is not permissable to contradict him by reference to a  16 statement that he is alleged to have made at some  17 later date by the party leading his evidence.  They  18 examined him in chief, they examined him with respect  19 to his territory, they examined him in relation to a  20 time when the territory that is now being referred to  21 appeared to be excluded.  If the evidence is that he  22 changed his mind, I still say, with respect, that it  23 cannot be changed.  It's not a declaration against  24 interest.  They are seeking to expand the territory of  25 Mr. Gunanoot, through the lips of this witness, who  26 was, apparently, had many conversations with Mr.  27 Gunanoot.  Many of them.  Now, if -- well, that's my  2 8 submission.  29 THE COURT:  Yes.  Well, I am going to allow the evidence to be  30 given, subject to the objection.  I think it's a  31 matter of weight but it may be that I will be  32 persuaded that it shouldn't be received at all.  But I  33 am rather inclined to think that because a witness  34 gives evidence of a fact, which may be in error, and  35 witnesses often make mistakes, just like lawyers and  36 judges, I don't think it should be forever cast in  37 stone that that is his evidence, even though there may  38 be extrinsic, admissible evidence to suggest that he  39 either made a mistake or he changed his mind.  But it  40 certainly goes to weight.  I am not sure it goes to  41 admissibility.  42 MR. GOLDIE:  I point out, my lord, that one is sworn evidence  43 and the other isn't.  4 4 THE COURT:  Yes.  45 MR. GOLDIE:  And if the — it may be that your lordship is  46 right, that if they wish to give to the second  47 evidence the same weight that they gave to the first, 7651  N. Sterritt (For Plaintiffs)  In Chief by Mr. Rush  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  they should -- we should have been afforded the same  opportunity, as soon as it came to their attention, if  that's the case.  But I have a submission that there  is nothing, unless it's a declaration against  interest, that allows unsworn evidence given through a  third party, to alter the evidence or change -- and I  say alter it, because when Mr. Gunanoot was examined,  that territory was excluded from his claim.  THE COURT:  I don't think, Mr. Goldie, that I can rule on  your -- admissibility to the extent that you, to the  extent for which you contend, without carefully  examining carefully what Mr. Gunanoot said on a prior  occasion.  MR. GOLDIE:  I agree with that, my lord, and I am prepared to  make a submission on that basis.  But I wasn't going  to do it until we came to the submission of this  affidavit, and I would prefer to do it at that time.  But in the meantime, I say we shouldn't hear any  evidence on the subsequent matter when the evidence --  the witness has sworn to in an affidavit.  COURT: The affidavit you're talking about, Mr. Sterritt's  affidavit, is it going to be tendered now?  GOLDIE:  It's been marked.  COURT:  It's already in?  GOLDIE:  Yes.  And he is speaking about, he says:  "I was  instructed about the Tutadi Territory and its boundary  by the former Nii Kyap, David Gunanoot, Chief of the  House of Nii Kyap, Wolf Clan, who is now deceased.  David Gunanoot pointed out the territory and major  landmarks to me when we travelled within the Tutadi  Territory.  He told me this territory belongs to Nii  Kyap."  Then he gives a description of the territory,  which, of course, includes that portion.  Now I was  going to object to that paragraph of the affidavit .  COURT:  Well, I am going to hear the evidence subject to the  obj ection.  RUSH: Well, just a couple of points that I have to put on  the record. Firstly, a minor point but the Sterritt  affidavit has not been marked. It's in the document  book, it's a minor matter.  GOLDIE:  I thought we had alloted a number to it.  RUSH:  We may have.  It hasn't been entered as an exhibit,  not been put to the witness.  The second point I would  like to make is that Mr. Gunanoot, from my  recollection, and I was counsel at the time that  evidence was given, did not contradict his ownership  of the Tutadi Lake territory.  And the third point I  THE  MR.  THE  MR.  THE  MR.  MR.  MR. 7652  N. Sterritt (For Plaintiffs)  In Chief by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  Q  13  14  15  16  A  17  Q  18  A  19  20  21  22  23  24  25  26  27  28  29  30  Q  31  32  A  33  34  Q  35  A  36  THE COURT  37  A  38  MR. RUSH:  39  Q  40  41  42  43  A  44  Q  45  46  A  47  would like to make is that with respect to that  territory, if anything turns on the map, that at the  time of his examination, it was May of 1986, at which  time that Tutadi Lake territory was included in the  October 15th, 1985 external boundary map and wasn't  taken out until the May 2nd, 1987 map.  So, there was no examination with respect to the  territory of Mr. Gunanoot's house, Nii Kyap's House at  the Tutadi Lake territory, at a time when there was  the exclusion that's demonstrated by the green line on  map 7.  Whatever that leads to.  Now, Mr. Sterritt, my question to you was:  In respect  of the Tutadi Lake territory, did you subsequently  determine, by a perusal of the maps, that this  territory was included in the claim?  Well, not necessarily by perusal of the maps.  By what means?  Some other information came forward, David Gunanoot  himself was troubled all along by the fact that it was  withdrawn, but some other information came forward  from a member of the House of Nii Kyap, who lived in  the Takla area, that the -- in fact, that the  territory had been restored to the House of Nii Kyap,  and with that, with that information, the House of Nii  Kyap was prepared to or to claim that territory as  Gitksan territory.  The other matter is that I was in  the process of preparing the first draft of the  affidavit with David Gunanoot when he died, which  would have dealt with this territory.  Who was the person that you referred to in respect to  a conversation then?  Sarah Teegee.  She's a member of the house of Nii  Kyap.  How do you spell Teegee, please?  T-E-E-G-E-E.  :  Is she alive?  Yes, she is.  The changes that are reflected in the green line on  map number 7, do those changes or at least the  information that led to those changes, communicated to  Marvin George?  Yes, they were.  And on the basis of those changes, do you know what  Mr. George did?  I understand that he prepared a revised external  boundaries of the territory. 7653  N. Sterritt (For Plaintiffs)  In Chief by Mr. Rush  1  ]  MR. GOLD  2  3  4  5    I  MR. RUSH  6  Q  7  A  8  Q  9  A  10  11  12  13  14  15  16  Q  17  18  A  19  20  21  22  23  24  25  26  27  28  29  30  Q  31  A  32  Q  33  A  34  35  36  Q  37  A  38  39  Q  40  A  41  42  Q  43  44  A  45  46  47  EI:  My lord, I wonder if my friend would be good enough  to ask the witness if there are notes of the meeting  with Sarah Teegee and any subsequent meetings with  David Gunanoot?  The conversation you had with -- is it Mrs. Teegee?  Yes.  Do you recall about when that was?  I think that my first discussion, the discussion began  in the fall of 1986, and then I had further  discussions in the spring of 1987, as did other  people, and there may have been discussions subsequent  to the spring of 1987 as well.  And to the best of my  knowledge, those notes appear in the loose-leaf  journals that have been turned over to the defendants.  And what about the -- did you make notes of your  discussions with Mr. Gunanoot?  I have a lot of notes with David Gunanoot, going right  back, I think, to the mid-'70s, where David is very  clear about his ownership being on the north shore of  Tutadi Lake and the other notes are -- they come  through the years, but there was a modification which  was reflected in my affidavit, that I am not sure  whether there is a note to reflect that, and that is  where on the final map that we end up with, it goes to  the height of land east of Moose Valley, not up Moose  Valley.  But I have notes of the trips with David and  I have a lot of notes -- or not a lot of notes, but I  do have notes about Tutadi Lake.  Were you in that area with David Gunanoot?  Yes, I was.  Was that part of a field trip that you made?  I made two field trips there.  I made one by  helicopter with David and James Morrison.  I made  another trip by vehicle in the fall of 1986.  All right.  Thank you, Mr. Sterritt, on that point.  But the discussion that I had that leads to my  affidavit, was just prior to his death.  When did Mr. Gunanoot die?  The fall of 1987.  And I am not sure if there is note  about that.  That's one I would have to check.  Okay.  Were there any other changes made in respect of  this map?  No.  But there may appear to be some changes in that  the -- you described them when you described how these  overlays were prepared in relation to heights of land  and so on, and the line wavers, depending on the 7654  N. Sterritt (For Plaintiffs)  In Chief by Mr. Rush  1  2  3  4  5  6  7  8  Q  9  10  11  A  12  Q  13  THE  COURT  14  15  16  17  MR.  RUSH:  18  19  THE  COURT  20  MR.  RUSH:  21  THE  COURT  22  MR.  RUSH:  23  THE  COURT  24  MR.  RUSH:  25  Q  26  27  28  29  30  A  31  32  Q  33  A  34  35  36  37  Q  38  39  40  A  41  Q  42  A  43  Q  44  45  A  46  Q  47  quality of the base map that was used for the original  line, which might have gone back to when Marvin George  first started or to the original map that was prepared  quite a while ago.  So it departs from the line here  and there but it is not necessarily a change in the  external boundary.  It just reflects better  information on more recent topographic maps.  Okay.  I would like to ask you, if you would, to look  at this overlay, which is map 8.  If you could just  take that down.  Take this down?  Yes.  :  I am not sure I understand the note that's attached  to this legend for the map, it says "May 20th, 1987."  Is that the date when it was marked Exhibit 5 for  identification?  Seems to me Exhibit 5 --  My lord, that map -- excuse me, are we talking about  map 8?  :  Yes, I am looking at the legend.  Yes, I think it was May 20th.  :  All right.  This is the map here, my lord.  :  I remember Exhibit 5.  And this is one of the first maps that we had.  I would just like you to compare the two, Mr.  Sterritt.  If you look at map 8 and Exhibit 5 for  identification, do they appear to you to show the same  boundaries as depicted on Exhibit 5 for  identification?  The external boundary is the same on map 8 as on map  7.  All right.  And in respect to the internal boundaries?  Well, they are based on information that was available  at the time and they are different from the internal  boundaries that are reflected on map number 4.  They  are -- yes, they differ.  All right.  But my question is in respect of Exhibit  5, which is the red-bordered map, and map 8, do the  internal boundaries appear to you to be the same?  You mean this map and this one?  Yes.  Yes.  All right.  And who prepared Exhibit 5 for  identification?  Marvin George.  And were you involved in providing information to Mr.  George from which the map was drawn? 7655  N. Sterritt (For Plaintiffs)  In Chief by Mr. Rush  1 A  Marvin was working from field books and information  2 that I had handed him at that time.  The field books  3 and topo sheets and, once again, at that time, that  4 information was incomplete.  He was working, it was a  5 big job for him to try and keep up and he was doing  6 his best but it was not necessarily complete or  7 up-to-date.  8 THE COURT:  You're talking now about Exhibit 5 for  9 identification?  10 A   Yes.  11 MR. RUSH:  12 Q   Just -- you mentioned field books and topo sheets, was  13 there other information that he had?  14 A   Yes.  There would have been -- by this time I am  15 also -- I am under instruction of the lawyers to check  16 the external territories as well as the internal  17 territories, I had been doing that since December of  18 '86, and there is a body of information that I have  19 that I am referring to Marvin but he hasn't  20 necessarily reflected that on his maps yet.  I let him  21 know what I have got, turn it over to him, and he is  22 trying to keep up but it's a major job.  I turned over  23 whatever information I had at the time.  24 Q   My question was, in what form did that information  25 take?  26 A   By then the loose-leaf notes had become part of my  27 procedure, so part of my information gathering.  28 Q   You made reference earlier in your testimony to maps  29 contained in a white binder, I believe you said six  30 maps.  Were those maps maps that Mr. George had?  31 A   Yes, they were more or less permanently in his care.  32 When he received information from me he tried to  33 update it in the white binder maps.  34 Q   Was that an ongoing process?  35 A   Yes.  I tried to assist Marvin as much as I could and  36 either telephoned him or went to him directly to bring  37 him information.  38 Q   All right.  Now, at the time that exhibit -- well,  39 leading up to the time that Exhibit 5 for  40 identification was prepared, can you advise the court  41 as to whether or not any other maps dealing with the  42 internal boundaries of the hereditary chiefs were in  43 the process of preparation or had been completed?  44 A  Marvin George was working to produce territorial maps  45 of each individual territory and he was doing this on  46 a scale of one to 50,000 and one to 100,000 maps.  47 What that required in the early stages for him was 7656  N. Sterritt (For Plaintiffs)  In Chief by Mr. Rush  1  2  3  1  4  Q  5  A  6  7  8  9  10  ]  11  12  13  14  15  16  17  18  19  20  Q  21  A  22  Q  23  A  24  Q  25  26  27  A  28  29  30  ]  31  Q  32  33  MR.  GOLDIE  34  MR.  RUSH:  35  MR.  GOLDIE  36  37  THE  COURT:  38  A   I  39  MR.  RUSH:  40  1  41  MR.  GOLDIE  42  43  MR.  RUSH:  44  Q  45  1  46  47  to -- he was actually drafting the maps, he was taking  existing maps, pasting them together and then actually  doing the contour lines, rivers, creeks and lakes.  Did you see him do this?  Yes, I did.  That took up at least six months going on  a year where he was basically just doing that.  He  wasn't -- he had a general area which would have  included the chief's territory but he did not have  information on it.  It was a major job, it was too  much, the court schedule, we were moving into that  phase, and he had to find another technique and he  consulted a contracting firm who were able to  photograph blocks of maps put together, based on his  instructions, and then that eliminated this process of  preparing individual maps.  He was putting information  on those.  It was a lengthy process and very slow for  him.  So he was well behind in his accumulation of  information from where I was in my gathering of  information.  In terms of the coded map, that is, I think, map 4?  Yes.  Now, the coded map shows internal boundary lines?  Yes.  All right.  And can you tell the court upon what  information, that you're aware of, that those internal  boundary lines were drawn?  On map 4, overlay 4, he is basically working from the  white binder, topo sheets, information that Alfred  Joseph and Glen Williams, to a certain extent, and  myself have passed on to him.  Now, at the time -- that map is dated October, I think  of 1985 --  :  I don't think it's dated at all.  Exhibit 102?  No, the map --  :  That may be but I don't think Exhibit 102 is --  which it purports to be a copy of.  Is that 4?  Map 4, Exhibit 102.  The overlay that is map 4 there, appears to be dated  October of 1985.  :  And I am saying that that does not appear, as far  as I am aware, in Exhibit 102.  The overlay, which is map 4, appears to be dated  October of 1985, Mr. Sterritt, and my question to you  is:  Can you say whether at that time the maps of one  to 50,000 and one to 100,000, were also being prepared 7657  N. Sterritt (For Plaintiffs)  In Chief by Mr. Rush  1 by Mr. George?  2 A   Yes, yes, by then he is into that process.  3 Q   Is there any relationship between those maps and, to  4 your knowledge, and the map which is overlay map 4?  5 A   They would be, at that point, generally they would be  6 similar but his -- well, they would be similar to  7 that, but when he gets on to map 8, which has the  8 draft internal territories, then they reflect some of  9 the maps that were attached to the interrogatories.  10 THE COURT:  What is the date that's shown on overlay number 4?  11 A   October 17th, 1985.  12 MR. GOLDIE:  Well, my point, the point of my interjection, my  13 lord, is that map 4 purports to be a copy of Exhibit  14 102, and as far as I am aware, there is no date on  15 Exhibit 102.  16 THE COURT:  All right.  I have noted that.  17 Is it convenient to adjourn, Mr. Rush?  18 MR. RUSH:  Yes, my lord.  19 THE COURT:  All right.  Thank you.  We will adjourn until 10  20 o'clock tomorrow morning.  21  22 (PROCEEDINGS ADJOURNED TO TUESDAY, SEPTEMBER 13, 1988 AT  23 10 O'CLOCK A.M.)  24  25  26  27  28 I hereby certify the foregoing to be  29 a true and accurate transcript of the  30 proceedings herein to the best of my  31 skill and ability.  32  33  34  35  36  37 Wilf Roy  38 Official Reporter  39  40  41  42  43  44  45  46  47

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