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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1988-06-22] British Columbia. Supreme Court Jun 22, 1988

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 7134  Proceedings  1 JUNE 22, 1988  2 VANCOUVER, B.C.  3  4 THE REGISTRAR: In the Supreme Court of British Columbia, this  5 Wednesday, June 22, 1988, calling Delgamuukw versus  6 Her Majesty the Queen at bar.  7 I caution the witness you are still under oath.  8 THE COURT:  I am informed by Madam Registrar through Mr. Rush,  9 to whom I am grateful, that we are graced this morning  10 by the presence of Mr. Justice Hall in the courtroom,  11 and I am pleased to recognize your attendance here  12 this morning, sir, and to say that it's a great  13 pleasure to you see you looking so well and fit, and I  14 hope that you are able to enjoy the morning's  15 proceedings.  I think it's not incorrect to say that  16 Mr. Justice Hall is a great Canadian and one of the  17 dragoons of the Canadian judiciary, and you are most  18 welcome, and we are most happy to see you, sir.  Mr.  19 Rush.  20 MR. GOLDIE:  If I may be allowed, My Lord, to record my  21 concurrence with Your Lordship's views.  22 THE COURT:  Thank you, Mr. Goldie.  Mr. Rush.  23 MR. RUSH:  My Lord, at the beginning of this week a motion was  24 set down pertaining to certain documents, and upon  25 request of my friend he asked that the matter be put  26 over to Monday, but I understand that in Friday's  27 proceedings last week Mr. Macaulay indicated that he  28 had no difficulty with the matter going to Friday.  I  29 proposed to my learned friends that the motion go to  30 Friday morning, and I would ask now that that motion  31 be set down for hearing on Friday morning of this  32 week.  33 MR. GOLDIE:  My Lord, I would prefer it to be heard on Friday.  34 The reason is that I have an inquiry outstanding to  35 our Ottawa researcher.  36 THE COURT:  Yes, all right.  37 MR. GOLDIE:  And I expect to have that by the weekend, and it is  38 certainly relevant to responding to my friend's  39 motion.  40 THE COURT:  Yes.  You said Friday, Mr. Goldie?  41 MR. GOLDIE:  I meant Monday, yes.  42 THE COURT:  What do you say about Monday, Mr. Rush?  43 MR. RUSH:  Well, on that basis I can't really —  44 THE COURT:  All right.  Monday satisfactory, Mr. Macaulay?  45 MR. MACAULAY:  Monday is satisfactory.  46 THE COURT:  I would be glad to hear counsel on Monday.  47 MR. RUSH:  There is one other matter by way of a preliminary 7135  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.  THE  THE  MR.  MR.  THE  THE  MR.  THE  MR.  THE  MR.  matter that Mr. Grant will speak to.  COURT:  Yes, thank you.  GRANT:  Yes, My Lord.  This is relating to one document out  of the grey book of Mr. Williams, that was the book of  documents of Glen Williams, that Mr. Plant and I  basically have come to agreement on all the documents  except this one.  I take the position that the  document, which is the bylaw affidavit of Glen  Williams, and the bylaw should be marked as an  exhibit, as I believe it's referred to from page 6885  through to page 6889 of the transcript, volume 108,  and it's identified at page 6887, line 22 as by Mr.  Williams as his affidavit.  And then Mr. Plant went on  to compare a 1983 bylaw attached to that affidavit  with the 1986 bylaw, which is already an exhibit, and  I submit, I think, as -- this is a document that has  been referred to, it was referred to over the course  of four pages, and, I think, as Mr. Goldie said  yesterday, referring to another document, that it  should be marked as an exhibit.  It is a document that  is referred to, and the witness was cross-examined on  it.  COURT:  Let me see the document, please, Madam Registrar.  REGISTRAR:  Is that the one at Tab 5?  PLANT  GRANT  COURT  MR. GRANT  COURT  GRANT  COURT  GRANT  COURT  PLANT  Tab 5.  Yes, Tab 5.  Tab 5 is the affidavit of Mr. Williams.  Is that  what you are --  The affidavit of Mr. Williams which refers to a  number of exhibits, including a 1983 bylaw.  Is the 1983 bylaw in evidence --  The 1983 bylaw is an exhibit to that affidavit.  Not to this copy it's not.  But it's not to this copy.  That's right.  I don't  know, maybe my friend can advise me, because he dealt  with the Registrar.  I know he referred to it.  I had  thought that it had been in this book.  All right.  Mr. Plant.  Well, first I might observe that when my friend and  I last spoke on this subject, he indicated that he  would be getting back to me with his views, and this  is the first I have had the pleasure of knowing what  his views are.  I deliberately did not tender the  document.  I asked some questions about it.  The  exhibits to Mr. Williams' affidavits are over an inch  thick.  I did not want to clutter Your Lordship with  the addition of that material into the record, and I 7136  Proceedings  1 do not see it as necessary to file the affidavit.  Had  2 I done so, I would have asked Your Lordship to mark it  3 as an exhibit before then.  4 THE COURT:  Counsel will have to refresh my memory.  This was  5 part of the cross-examination of Mr. Williams?  6 MR. GRANT:  Yes.  7 MR. PLANT: I don't have the book with me, because I didn't  8 realize we would be dealing with it.  But I asked Mr.  9 Williams to confirm -- my recollection is that I asked  10 him to confirm the statements made in the first or  11 second paragraph concerning his position with the  12 Tribal Council and the Band Council.  I also read to  13 him paragraphs 24 to 27, going from memory, and I also  14 asked him to confirm that one of the exhibits to that  15 affidavit was a 1983 fishing bylaw enacted by the  16 Gitwangak Band Council, and I asked him to confirm one  17 or two matters of fact relating to what was in that  18 bylaw, and to the best of my recollection at the  19 moment -- again I don't have the transcript reference  20 before me -- that's -- that was the sum total of my  21 cross-examination.  22 MR. GRANT: Well, as I have indicated, he identified and  23 cross-examined for three pages of the transcript on  24 this affidavit, and questioned Mr. Williams on it.  25 It's a document that has been referred to in evidence.  26 The '83 bylaw of the Moricetown Band is Exhibit 248A,  27 so it is an exhibit.  28 THE COURT:  It's already in?  29 MR. GRANT:  The bylaw of Moricetown is in, the wording, I can  30 advise the Court of this bylaw, is the same, except  31 they are different bands.  So I believe he was  32 questioned with respect to 248A, but the witness was  33 asked specifically if this was his affidavit, and then  34 he was asked questions about the affidavit, and I  35 submit that it's proper that the document, having been  36 put to the witness, should be marked as an exhibit.  37 MR. PLANT:  Perhaps I could say, if my friend wants to tender  38 the affidavit and all of the exhibits to it as part of  39 his case, I don't object to that.  I don't think I am  40 under any obligation to ask that the document be  41 marked as an exhibit as part of my cross-examination,  42 but if he wants to tender the document as part of his  43 case, then I'm not going to object to that.  44 THE COURT: Are you prepared to accept your friend's offer, Mr.  45 Grant, or do you want me to rule?  46 MR. GRANT:  I am prepared to -- if the document is marked as an  47 exhibit, and it's clear that it's the one that is 7137  Proceedings  1 referred in this passage of cross-examination, I have  2 no problem with that, and it will have to be a  3 sequential exhibit.  I mean, I will give the number  4 to -- I'll prepare the affidavit or file it.  5 THE COURT:  I'm not sure what it means when somebody says it's  6 not part of my case, particularly when it arises in  7 cross-examination.  I think when documents become  8 exhibits, they become evidence in the case, and they  9 are foreign against all parties, if it's evidence.  I  10 suppose there may be some rarer cases where it is  11 particularly significant that somebody puts a document  12 in, although I'm not sure that's -- I'm not sure  13 that's a valid judicial reason.  I think evidence is  14 evidence, and it's foreign against everybody.  But if  15 counsel seem to have been agreed that this exhibit  16 should now be -- this affidavit and all its exhibits  17 should be exhibits in the case, I'm not sure if they  18 are evidence of truth of all facts stated in them --  19 MR. MACAULAY: I don't agree, My Lord.  I don't want it to appear  20 on the record that I agree this should be marked as an  21 exhibit.  It's -- I haven't seen that affidavit, but I  22 know what the -- what it generally it is about.  It's  23 about the the fishing by-laws, reserved fishing  24 bylaws.  This action has nothing to do with reserve  25 fishing, and that's the basis of my objection.  This  26 action has to do with the definition of aboriginal  27 rights.  It ignores the distinction between -- as I  28 understand it, the plaintiffs draw no distinction  29 between reserved lands and other territories,  30 traditional territories.  31 THE COURT:  Yes.  32 MR. MACAULAY:  This has to do — it's just beside the point, and  33 we are cluttering up the record with -- was it an inch  34 of exhibits?  Well, that's the basis of my objection.  35 THE COURT: I only deal in metric.  36 MR. MACAULAY:  It doesn't — I'm too old to go metric.  It  37 doesn't address any of the issues that are before Your  38 Lordship, any of the issues that the plaintiffs are  39 raising, or the issues that -- that form the basis of  40 the defence.  All sorts of things are asked about  41 cross-examination for reasons I have -- that are  42 difficult to understand sometimes.  We'll come to that  43 again in a few minutes with this witness, some  44 documents, similar documents, and I'll repeat my  45 objection then.  4 6 THE COURT:  Yes.  47 MR. MACAULAY:  But I am objecting on the grounds of they are 713?  Proceedings  1 irrelevant.  2 THE COURT: Yes.  3 MR. GRANT:  My Lord, I would comment that the 1983 bylaw, the  4 first of the bylaws to be introduced as an exhibit,  5 was introduced by the Provincial defendant as an  6 exhibit, and I don't think, from my recollection,  7 there was any objection taken by the Federal defendant  8 at that point to that document being marked as an  9 exhibit, on the basis of relevance, and this is the  10 same material.  11 THE COURT:  Well, I am in a position where I am dealing now with  12 the consequences of the witness being asked about some  13 of the passages in these documents in  14 cross-examination.  15 MR. GRANT:  Yes.  16 THE COURT:  And it seems to me that if there is not agreement of  17 all counsel that the document should be marked,  18 together with all its exhibits, then I think I have to  19 rule on a strict legal basis as to what are the  20 consequences of asking a witness about a document  21 which is not then tendered.  Opposing counsel says I  22 now want it marked because it was referred to the  23 witness, and he was cross-examined on it.  I take it  24 that's the position, and Mr. Macaulay's unwillingness  25 to agree to Mr. Plant's offer --  26 MR. GRANT: I understand that Mr. Macaulay's position is based on  27 relevance, and that solely is the basis.  28 THE COURT:  I am not really concerned why he is objecting.  He  29 is objecting, and therefore I have to rule.  All  30 right.  Well, is there anything else that you wanted  31 to say?  I am going to deal with it on the narrow  32 evidentiary ground.  Does putting it to the witness  33 make it subject to being marked as an exhibit on your  34 application?  35 MR. GRANT:  Well, it may have been more appropriate, My Lord,  36 and this was something that I thought of since, that I  37 on redirect should have put it in, and that would  38 have -- in a way that is how -- that may be what Mr.  39 Plant is in a way referring to, because then I would  40 have directed him to a signature which was directed  41 to -- he was directed to by Mr. Plant, and then asked  42 to have it marked.  If I had done that, it's my  43 submission that it could have at that point been  44 marked.  And as Mr. Plant says on the distinction  45 of -- it would have come in some way as part of the  46 plaintiffs' case as opposeed to the defendants' case,  47 but that distinction, and I agree with the Court, that 7139  Proceedings  1 makes no difference, but at that point it could have  2 been marked.  3 What happened is that Mr. Plant and I generally  4 discussed the documents.  There was general agreement  5 that he was going to excise, and then this one came  6 up, and on re-thinking it I realized that this one --  7 I reviewed the transcript and there was extensive  8 questioning of the witness regarding it, and I think  9 that for a complete record the Court should have this  10 document before it as to the document which the  11 witness was cross-examined on.  12 THE COURT:  All right.  Well, if I have to rule on the basis of  13 my experience in these matters, I would refer to a  14 ruling by Mr. Justice Coady, when he was a Trial  15 Judge, who is a excellent Trial Judge, in a case where  16 a police officer referred -- I'm sorry, a police  17 officer was cross-examined as to a part of his notes  18 in a large heroin conspiracy case, and having been  19 cross-examined on a part of his notes, counsel for the  20 Crown then applied to have all the officer's notes put  21 into evidence on the grounds of cross-examination had  22 made them evidence.  Mr. Justice Coady ruled that  23 cross-examination on a portion of a document does not  24 make the entire document admissible as evidence in the  25 case, but that only those parts upon which there had  26 been cross-examination should become admissible as  27 evidence in the case.  And for that reason I would --  28 I am disposed to rule against the entire document and  29 all its exhibits being an exhibit, and I would rule  30 that only those parts that were examined upon should  31 be part of the case.  32 I agree with Mr. Grant that if he had sought on  33 re-examination to -- not to put the document in,  34 because at that point my ruling would have been the  35 same, but to have relied upon a different procedure  36 and said to the witness in re-examination, under  37 cross-examination you were asked about what you said  38 in a document, what else did you say in that document,  39 the witness could have given the balance of the  4 0 document in evidence.  But that didn't happen, and I  41 am now left with just the question of whether the  42 cross-examination makes the document admissible.  I am  43 disposed to say that it does not.  44 I don't propose to rule finally, because I am  45 reminded that within the last year a very useful paper  46 was delivered to the criminal law subsection of the  47 Canadian Bar Association by -- I'm sorry, I can't 7140  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  think of his  first name -- Mr. Smith.  He delivered a very useful  paper that dealt with this very subject, and I don't  propose to rule 'til I have read that paper, and to  make sure that the law hasn't overtaken Mr. Justice  Coady, and I will look at that, if I can, during the  course of the day, and try and deal with it tommorrow  morning.  If counsel wanted to look at that paper, the  source where it may most readily be found would be  through Mr. Rick Peck, who was chairman of the  criminal law subsection at the time that paper was  delivered.  THE COURT:  Mr. Rush.  MR. RUSH:  Thank you.  Madam Registrar, I wonder if the black  document book for Mr. Sterritt could be placed before  the witness.  Please turn to Tab 28, Mr. Sterritt.  Q   While involved with the blanket trapline proposal of  the Gitksan-Wet'suwet'en Tribal Council, did you also  become specifically involved with a trapline of a  hereditary chief, David Blackwater senior?  Yes, I did.  Right.  I am showing you a letter under Tab 26.  Is  this a letter which you directed to the Ministry of  Environment to a Mr. Rick Marshall of that Ministry?  Tab 26?  Yes.  Yes.  David Blackwater, Niist, had come to see me, and  brought a letter that had been written to him by the  Ministry of Environment under Rick Marshall, and I  forwarded a letter to the Ministry of Environment  thereafter outlining David Blackwater's concerns.  On whose behalf?  On his behalf.  All right.  In that tab as well, I believe, there is a  letter from Mr. Marshall of June 26th, 1985 to Mr.  Blackwater senior.  Is that the letter that you  received -- or from Mr. Blackwater?  Yes, it is.  MR. RUSH:   The letter from Marshall to Mr. Blackwater senior,  June 26th, 1985, and from Mr. Sterritt to Mr.  Marshall, July 11th, 1985, may those be exhibits, My  Lord.  THE COURT:  634 is the next number?  THE REGISTRAR: Yes, My Lord.  THE COURT:  All right.  The June 26th, 1985 letter will be 634A,  and Mr. Sterritt's reply is 634B.  A  Q  A  Q  A  Q  A  Q  A  RUSH: 7141  N.J. Sterritt (for Plfs.)  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  (EXHIBIT 634A - TAB 26 - LETTER - JUNE 26,  1985 MARSHALL TO BLACKWATER - PLAINTIFF)  (EXHIBIT 634B - TAB 26 - LETTER - JULY 11,  1985 - STERRITT TO MARSHALL - PLAINTIFF)  THE WITNESS:  And David Blackwater was very concerned because of  the comment in the letter that the trapline could be  put up for public auction, and -- or to be passed onto  someone else.  THE COURT:  Is there more about this,  is resolved?  There is more about this.  Thank you.  MR.  THE  MR.  MR.  THE  THE  or may I ask if the matter  RUSH:  COURT  RUSH:  Q  A  Q  A  RUSH:  COURT  Turn to Tab 27.  Yes.  Mr. Sterritt, is that a response that you received  from Mr. Marshall pertaining to your letter of July  the 11th, 1985?  This is from Mr. Marshall to Mr.  Sterritt, July 18th.  Yes, it is.  And he points out the policy, which is to  pass the trapline onto the immediate family members,  and then defines what family members are, and one of  the reasons that I was concerned at this time is that  about two years earlier Frank Gillen had indicated to  me that he would attempt to follow the -- he would  follow the matrilineal system of the Gitksan and  Wet'suwet'en inheritance.  Okay.  May this be the next exhibit, My Lord.  Yes.  635.  REGISTRAR:  635, Tab 27.  (EXHIBIT NO. 635 - TAB 27 - LETTER - JULY 18,  1985 - REPLY - MARSHALL TO STERRITT)  Q   Was counsel, legal counsel, involved in correspondence  with the Ministry of the Environment regarding Mr.  David Blackwater senior's trapline?  A   Yes, they were.  I asked Peter Grant to get the policy  manual, because of the difference between what Frank  Gillen had said to us a couple of years earlier and  the contradictions, and also -- so Peter Grant  followed up on that, and this is a letter that he  passed onto me, and also Louise Mandell became  involved in this same issue.  Q   All right.  May the letter at 28 be marked as the next 7142  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.J. Sterritt (for Plfs.)  In chief by Mr. Rush  exhibit please.  That's Marshall to Mr.  dated August 15th, 1985.  THE COURT:  Yes, that will be 636.  Peter Grant,  (EXHIBIT NO. 636 - TAB 28 - LETTER - AUGUST  15, 1985 - MARSHALL TO GRANT)  THE COURT  MR. RUSH  THE  MR.  MR.  MR. RUSH  THE  MR.  There is in that tab another letter dated March  17th, '86.  You are coming to that, I suppose, are  you?  Louise Mandell.  That March 17th letter should really be part of the  next tab.  COURT:  All right.  RUSH:  And I'll deal with -- in reference to that tab.  GOLDIE:  The letter under Tab 28, Exhibit 636, had  enclosures with it.  It was not my friend's position  that he wishes those enclosures to go in?  Well, I would hate to revisit the argument that was  earlier made, My Lord.  This letter is the only  letter -- this is the document which I have.  I  understand that the policy manual that is referred to  is the same policy manual that was referred to in a  letter submitted by Mr. MacKenzie, as a letter sent to  the Gitanmaax Band, but did not contain the policy  manual.  And I believe it's the same manual, and I'll  have to determine if it's the same.  I don't object to  it going in as an appendage to either letter, and I'll  try to determine what that is.  So that's 636, My  Lord.  636.  COURT:  RUSH:  Q  A  Q  A  Yes.  Please turn to Tab 29, Mr. Sterritt.  Yes.  Appended to Tab 29 is first a letter dated March 12th,  1986 from Louise Mandell to Richard Marshall, dated,  as I have said, March 12th, 1986, and there is in  addition a letter to Mr. Marshall from Miss Mandell  dated March 27th, 1986 with two enclosures, the  trapline registration together with the relinquishment  form of my trapline interests, and there is also a  letter from Mr. Marshall to Miss Mandell of March  17th, 1986.  Now, Mr. Sterritt, you indicated that Miss Mandell  became involved, along with Mr. Grant, or later than  Mr. Grant on -- in respect of this trapline?  Yes, she did, and I had a meeting with her and with  David Blackwater, and we discussed the problem, and 7143  N.J. Sterritt (for Plfs.)  In chief by Mr. Rush  1 then she followed up with correspondence in assisting  2 David Blackwater.  3 Q   All right.  And this is the correspondence.  Can you  4 identify this correspondence?  5 A   Yes.  6 Q   You received this, did you?  7 A   Yes, I did.  8 Q   Including a letter from Mr. Marshall?  9 A   Yes, I did.  Louise Mandell passed it along to me.  10 Q   All right.  And what was the final resolution in  11 respect of the registration of the territory involved,  12 Mr. Sterritt?  13 A   The problem was that the Ministry of Environment  14 wanted to pass the trapline along to the son of  15 Charles Sampson, Perry Sampson.  The final resolution  16 was that Perry Sampson agreed that David Blackwater as  17 Niist was the proper nephew, proper person to receive  18 the trapline from Charles Sampson, who was Niist, and  19 this letter, with Perry Sampson and David -- Perry  20 Sampson, David Blackwater's signature on it is  21 evidence of that.  22 Q   All right.  When you say proper, do you mean proper in  23 accordance with the matrilineal inheritance system of  24 the Gitksan-Wetsuwet'en chiefs?  25 A   Yes, at the death of Charles Sampson at the funeral  26 feast David Blackwater took the name of Niist.  Perry  27 Sampson was there.  It was proper, and this is -- that  28 problem was resolved in terms of the trapline records  29 here, but it was properly dealt with some years  30 earlier when Charles Sampson died.  31 Q   Charles Sampson was the former holder of the name  32 Niist?  33 A   Yes, he was.  34 MR. RUSH   My Lord, I propose marking these documents.  Perhaps  35 the March 12th letter first.  36 THE COURT:  Yes, that will be 637A.  And the Government's letter  37 will be 637B.  David, March 17th, '86, and Louise  38 Mandell's letter, March 27th, 1986 should be 637 C.  39  4 0 (EXHIBIT NO. 637A - TAB 29 - LETTER - MARCH  41 12, 1986 - L. MANDELL TO R. MARSHALL -  42 PLAINTIFF)  43  44 (EXHIBIT 637B - TAB 29 - LETTER - MARCH 17,  45 1986 - MARSHALL TO MANDELL - PLAINTIFF)  46  47 (EXHIBIT 637C - TAB 29 - LETTER - MARCH 27, 7144  N.J. Sterritt (for Plfs.)  In chief by Mr. Rush  1 198 6 - MANDELL TO MARSHALL WITH ATTACHED -  2 PLAINTIFF)  3  4 MR. RUSH:  My Lord, I think it's only proper to point out that  5 the principle objection to Mr. Blackwater taking this  6 line was that he was already registered as a  7 co-holder, and the material that has been placed  8 before you includes a relinquishment of Mr.  9 Blackwater's.  10 THE COURT:  I noticed that.  I should have added that the two  11 attachments to 637B will be part of that exhibit as  12 well.  13 MR. RUSH:  There are two attachments, My Lord, and they should  14 be part of 637C.  15 THE COURT:  Yes.  I'm sorry, yes.  16 MR. MACAULAY:  What is the date of 637B?  17 MR. RUSH:  The date of —  18 THE COURT:  March 17th.  19 MR. RUSH:  Is March 17th.  2 0 MR. MACAULAY:  We haven't got that.  21 MR. RUSH:  I'm sorry.  It was inadvertence, but I believe that  22 is this.  23 My Lord, I'm sure Mr. Goldie will make the  24 submission he has just made as a matter of argument.  25 We suggest that the point raised by Mr. Goldie is one  26 of the reasons there were the other reasons which had  27 to do with the statutory nature of the inheritance  28 under the Fish and Wildlife --  29 THE COURT:  I have glanced quickly at the correspondence.  3 0 MR. RUSH:  Yes.  31 THE COURT:  General idea of what's in it.  32 MR. GOLDIE: Excuse me, before we go on, may I point out that  33 with respect to Exhibit 634B, that's the letter of --  34 under Tab 26, there appears to have been an enclosure  35 to that referred to in the fourth paragraph on page  36 one.  I am enclosing for your reference a section of  37 the genealogy of the Wilps Niist that which  38 demonstrate that the successor to Charles Sampson, who  39 is the former Niist, is David Blackwater senior.  I  40 think we should have, My Lord, because it -- it goes  41 to the question of whether Mr. Blackwater wasn't  42 within the definition of immediate family member that  43 the department recognized --  44 THE COURT:  All right.  Well —  45 MR. RUSH:  I unfortunately -- again I do not have that as part  46 of my document, but it was sent to me by my learned  47 friends, and I don't have that with me, but I am happy 7145  N.J. Sterritt (for Plfs.)  In chief by Mr. Rush  1  2  THE  COURT:  3  MR.  RUSH:  4  THE  COURT:  5  MR.  RUSH:  6  Q  7  8  9  A  10  Q  11  THE  COURT:  12  13  MR.  RUSH:  14  Q  15  16  17  18  19  i  20  21  22  23  24  A  25  Q  26  A  27  28  29  30  31  32  1  33  34  35  36  37  Q  38  i  39  A  40  Q  41  42  43  A  44  45  MR.  GOLDIE  46  47  to include it as part of this exhibit.  I think it should be included as part of 634B.  That's certainly fine with me.  Thank you.  Reference has been made, Mr. Sterritt, to a genealogy  of Niist that accompanied the letter, 634B.  Do you  recall that having been sent with the letter?  Yes, I do.  All right.  Well, the genealogy will be added when it's  available.  Yes.  Thank you.  I am now going to direct your attention to Tab 30.  Yesterday, Mr. Sterritt, you testified about fishing  charges that had been laid in respect of violations of  the Fisheries regulations, and what involvement that  you had in seeing to defences for Gitksan and  Wet'suwet'en fishermen.  Now, following those charges  and the disposition of those charges were you yourself  involved on behalf of the hereditary chiefs in  face-to-face negotiations with the Department of  Fisheries over the regulation of the Fishery?  Yes, I was.  When did that happen?  It happened continually from the time that the charges  had been -- that we had won the case, and then through  into 1981 and 1982 we were in negotiations, we met  with various representatives of the Department of  Fisheries and Oceans, from the local level through to  the Ottawa level.  And the -- the areas that we were  discussing were co-management, development of a  commercial inland fishery.  The summer regulations  that were being imposed by the Department of Fisheries  and Oceans and ways to deal with that, those were some  of the discussions that we were having.  Now, you mentioned when the Fishery charges were won.  What year was that?  1979.  And you said co-management.  And can you explain to  the Court what you mean by co-management, what was  intended at the time these discussions occurred?  The hereditary chiefs saw co-management in a different  way than the Department of Fisheries and Oceans.  :  Excuse me, my understanding of my friend's purpose  in leading this evidence is to demonstrate the nature  of Mr. Sterritt's employment as president of the 7146  N.J. Sterritt (for Plfs.)  In chief by Mr. Rush  1 Tribal Council.  That being so, is it necessary to go  2 through the differences that arose between the Federal  3 Department of Fisheries and the hereditary chiefs, or  4 is it not sufficient for Mr. Rush's purpose to have  5 him state the nature of his employment.  6 MR. RUSH:  I don't think it is, My Lord, and I think this is the  7 same objection raised yesterday by my learned friend,  8 which was disposed by Your Lordship, and that is the  9 point here that there is a history and a context to  10 the conduct of the hereditary chiefs within the Tribal  11 Council, and at that time, when Mr. Sterritt was  12 acting first as the director of land claims and then  13 as president, and I don't go -- I don't intend to go  14 chapter and verse through these discussions, but I do  15 think that the timing of the discussions, the content  16 of the discussions is material.  17 Its been examined on and cross-examined on with  18 previous witnesses, and I intend to lead Mr. Sterritt  19 through the events -- the involvement by the chiefs in  20 the Tribal Council with regard to certain resource  21 management initiatives that were being taken by  22 government bodies.  23 THE COURT:  Mr. Macaulay.  24 MR. MACAULAY:  I will be objecting to most of the documents in  25 the next few tabs.  I can't object in advance to  26 questions that may be put to the witness on the  27 general topic.  I won't be objecting to this witness  28 giving in a general way an account of his discussions  29 with the Department of Fisheries, although it's  30 difficult to see the relevance, but I won't.  But the  31 documents which I have read, I will be submitting are  32 not relevant, and for reasons that I can outline now,  33 I'll wait 'til he seeks to put them in.  34 THE COURT:  I think you perhaps should wait, Mr. Macaulay, until  35 they are tendered.  36 MR. MACAULAY:  We know that there were -- from earlier evidence,  37 that there were various attempts to have -- to have a  38 bylaw approved, and that finally one was let through,  39 in a sense, and we also know that there is other  40 litigation lending its way through the courts on those  41 very issues, but it has to do with reserves and  42 fishing on reserves and reserve boundaries and the  43 like.  44 THE COURT:  Well, today's the — I'm sorry, Mr. Goldie, anything  45 else?  46 MR. GOLDIE:  No, My Lord.  I just -- my friend's purpose in  47 putting it in seem to be a very narrow one, and the 7147  Submissions by Counsel  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  THE COURT  MR.  RUSH:  Q  A  A  Q  A  examinations of other -- of the chiefs on this point  seem to exhaust the substantive point, and I -- my  suggestion was that perhaps it was unnecessary to  establish the point, but I don't take anything further  than that.  :  I don't think on the 111th day of taking the  evidence in this case that I should preclude the  plaintiffs from calling evidence that amount to  conversations with representatives of the defendants  prior to the commencement of the action.  There may be  some admissions there.  I can't predict that.  I think  the activities of the witness, prior to the  commencement of the action, may well be relevant.  I  will have to leave it to counsel to keep it within  some reasonable limits.  I don't really have any legal  interest in knowing the facts of the cases and the  reasons for the disposition of it, and I'm sure Mr.  Grant -- I think we are getting more detailed than we  need, but I don't think I want to interfere with how  counsel put their case in.  We have come too far down  this road to change now.  Thank you.  Over what period of time did the discussions with  representatives from the Department of Fisheries and  Oceans take place with regard to the co-management?  Over a period of about two years.  We found ourselves  very far apart.  The hereditary chiefs' ownership and  jurisdiction over the fishery was the terms of  reference that I operated under.  The hereditary  chiefs advised me that co-management meant that they  would make major decisions, in terms of the fishery,  that they would determine times of fishing, and they  had their own management practises, and from the  Department of Fisheries and Oceans' point of view  co-management meant giving permits to the Indian  fishermen, that they have closures on certain days and  so many days per week, and we never could close that  gap.  And yesterday you testified to the fact that in 1979 a  fish management study was initiated by the Tribal  Council, and you were involved in that?  Yes, I was.  Was the initiation of the fish management study in any  way related to the co-management discussions that were  going on between the hereditary chiefs, yourself and  members of the Department of Fisheries and Oceans?  Yes, it was, because we felt that we needed to do an 7148  N.J. Sterritt ( for Plfs.)  In chief by Mr. Rush  1 indepth study, that we could sit down with the  2 Department of Fisheries and Oceans and other persons  3 to demonstrate in some detail the reasons why we  4 should have a commercial inland fishery, the reasons  5 why the Gitksan-Wet'suwet'en hereditary chiefs should  6 play a major role in the fishery.  There were major  7 social and economic benefits that could arise through  8 the type of plan that we intended to implement.  9 Q   All right.  In 1982 was a decision taken by hereditary  10 chiefs and Band Council letters, that you know of, to  11 proceed with legal proceedings regarding the reserve  12 base fishery?  13 A   Yes, there was.  It was -- we called it -- locally we  14 called it the Prendre case.  It was a Petition of  15 Right taken on by hereditary chiefs to establish their  16 right to the the fish and the waters of the reserve  17 adjacent to the -- of the river adjacent to the  18 reserve.  19 Q   The petition of right has been made an exhibit by the  20 defendants.  It's Exhibit 26, My Lord.  Was a fiat  21 sought of the Lieutenant Governer of the Province of  22 British Columbia with regard to this petition?  23 A   Yes.  24 Q   To your knowledge was it granted?  25 A   No, it was not.  2 6 Q   Now, at the same time or during the time when the  27 Petition of Right was a consideration of the  28 hereditary chiefs, was there a consideration as well  29 given to the drafting and passing of bylaws under the  30 Indian Act with regard to the fishery?  31 A   Yes.  Every season we continued to find ourselves  32 under tremendous pressure from enforcement officers,  33 and felt that something had to be done while the study  34 was being carried out to remove that pressure.  Our  35 discussions were not effective in doing that with the  36 Department of Fisheries and Oceans, and so the  37 hereditary chiefs sought other ways, and one of the  38 ways was to use the bylaw making powers of the Indian  39 Act to assert the authority and control of the  40 hereditary chiefs over the fishery, and their  41 instructions were to assert -- to develop bylaws that  42 would do that over the fishing sites that were within  43 the reserve and outside of the reserve.  44 Q   And were such bylaws initiated?  45 A   Yes, there was.  In early in 1983 the Hagwilget and  46 the Moricetown Band passed bylaws, and then later in  47 the fall of 1983 the Gitwangak Band passed bylaws. 7149  N.J. Sterritt ( for Plfs.)  In chief by Mr. Rush  1 The Moricetown bylaws were disallowed, and the --  2 Q   Disallowed by?  3 A   By the Minister of Indian Affairs.  4 THE COURT:  Moricetown was disallowed?  5 THE WITNESS:   Moricetown and Hagwilget bylaws were disallowed  6 by the Minister of Indian Affairs.  7 MR. RUSH:  8 Q   If I may just ask you to pause there.  In respect of  9 the drafting and passing of these bylaws, what was  10 your role?  11 A  My role was in sitting in with the hereditary chiefs,  12 bringing to their attention the progress that we might  13 or might not be making, in terms of our discussions  14 with the Department of Indian Affairs, and take  15 instruction from the chiefs in how to frame the  16 bylaws.  17 Q   All right.  Were you involved yourself in the  18 correspondence with representatives from the  19 Department of Indian Affairs concerning the language  20 of the bylaws?  21 A   Yes, I was.  22 Q   All right.  Was counsel also involved?  23 A   Yes.  There is a volume of correspondence on that.  24 Q   Now, without referring to that, I wonder if you could  25 just explain to His Lordship what occurred after the  26 bylaws had been first passed in early 1983, and then  27 you said disallowed.  What followed from that in 1983?  28 A   The Gitwangak Band passed a bylaw that was disallowed  29 by the Deputy Minister.  The Gitwangak Band and the  30 hereditary chiefs decided to appeal that decision, and  31 that went before the courts in British Columbia,  32 Justice Collins, I believe, and we lost that appeal.  33 And at that point we were pretty disappointed, but the  34 lawyer, the justice lawyer for the Attorney General of  35 Canada, met with us afterwards and suggested that she  36 could help us to frame wording from the bylaw -- in a  37 bylaw that might pass.  And we, in the interests of  38 achieving a negotiated agreement, pursued that.  39 Q   And were you involved in pursuing that on behalf of  40 the hereditary chiefs and the Band Council?  41 A   Yes, I was present when the decision came down here in  42 Vancouver, or when it came down, and yes, here in  43 Vancouver, and this justice lawyer talked to one of  44 our lawyers and said that I was present, and we then  45 took up that offer.  And I instructed Peter Grant to  46 pursue the negotiations, to try to come up with  47 wording that would be acceptable to the hereditary 7150  N.J. Sterritt ( for Plfs.)  In chief by Mr. Rush  1 chiefs and to the Department of Indian Affairs.  2 Q   And what followed from that?  3 A  Approximately two years of correspondence, discussions  4 and generally frustration, in that whenever we thought  5 we had an agreed upon wording for a bylaw, and pass it  6 along to the people who would advise the minister in  7 Ottawa, the bylaw was -- it wasn't -- it -- they would  8 not -- they said it would not pass, that more changes  9 had to be made.  We constantly had to make more  10 changes to the wording of the bylaw, and this went on  11 for a period of two years.  12 Q   All right.  And are you able to recall how many drafts  13 were proposed and rejected of the bylaws that were  14 intended to be passed?  15 A   There was eight drafts, and I think that the ninth  16 draft we finally -- I made, along with Glen Williams,  17 made some trips to Ottawa, and met with the Minister  18 of Indian Affairs and made representations to the  19 standing committee on Indian self government.  Keith  20 Penner, sent letters there, sent letters to our MP,  21 and we insisted that the bylaw, that we could not make  22 any further changes in the bylaw, that it was a game  23 that was being played by the officials, and that we  24 had to -- that there is -- there was too many problems  25 on the river for the people.  There was no reason why  26 the bylaw couldn't be approved, because we had been  27 told that there was nothing wrong with it.  We had the  28 help of the Attorney General's office, and we were  29 getting very, very upset and frustrated with the  30 pressure from both ends, on the river for the people  31 and at the other end where no one would pass this  32 bylaw.  33 Q   All right.  In 1986 was the bylaw eventually not  34 disallowed by the Minister of Indian Affairs?  35 A  Well, several bylaws went to Ottawa and were once  36 again disallowed.  A bylaw -- pardon me, I should go  37 back to the summer of 1985.  In 1985 I was -- prior to  38 this the -- somehow the Department of Fisheries and  39 Oceans became involved in our bylaw, and we once again  40 expressed our concern about that, that there was no  41 reason for them to be involved.  They were involved.  42 It was them, then, that was rejecting the bylaw.  The  43 Minister of Indian Affairs said that he would try  44 mediate and try to get one, but I found myself in  45 Ottawa in the summer, July of 1985, negotiating with  46 the Minister of Indian Affairs and the Minister of  47 Fisheries and Oceans to pass the bylaw.  And I made 7151  N.J. Sterritt ( for Plfs.)  In chief by Mr. Rush  1 some guarantees.  I did a letter of intent.  I  2 contacted our lawyer on the phone.  Glen Williams was  3 in Gitwangak, and he was speaking to the hereditary  4 chiefs, and he was advising me whether or not I could  5 negotiate an agreement that we would integrate our  6 fish management plan with the larger management plan  7 of the Department of Fisheries and Oceans.  8 Q   When you say our fish management plan, what were you  9 referring to?  10 A   I was referring to the bylaws, of what was outlined in  11 the bylaws.  It included the hereditary chiefs as  12 advisors.  The reason it was in that manner, because  13 it was the only way that they would accept the bylaw,  14 but we intended to have the hereditary chiefs as the  15 final authority on the fishery.  16 Q   The fish management plan, did that relate in any way  17 to Mr. Morell's study?  18 A   Yes, it did.  19 Q   In what way?  20 A  We had a final report by then and his recommendation.  21 In any event, in 1985 the -- I was negotiating in  22 Ottawa, Glen was advising me.  The -- I did a letter  23 of intent.  I thought that both the Minister of  24 Fishery and Oceans and Minister of Indian Affairs were  25 satisfied.  Still failed to pass the agreement.  It  26 was a joint letter between the three of us.  I, in the  27 fall or early winter of -- fall of '85 or early winter  28 of '86, I believe the bylaws were disallowed again,  29 and then in the spring of 1986 a bylaw was not  30 disallowed.  31 Q   That is to say the minister did not exercise his  32 disallowance power into the Indian Act, isn't that  33 correct?  34 A   That's right.  35 Q   And the effect of that was that the bylaws were --  36 became law, so far as you know?  37 A   They became law.  38 Q   All right.  Just before you go on from that point, Mr.  39 Sterritt, had there been another court action in 1985  40 that was brought to the Federal Court?  41 A   I don't recall.  42 Q   All right.  Now, in 1986 what was the date of the --  43 of the minister not disallowing the bylaws?  44 A   I believe it was in June.  Somehow June 26th stands  45 out in my mind, but I'm not sure that that's the exact  46 date.  47 Q   All right.  Now, I understand that the -- there has 7152  N.J. Sterritt ( for Plfs.)  In chief by Mr. Rush  1 been a restraining order taken against the  2 implementation of the bylaws in the summer and June of  3 1986, is that correct?  4 A   Yes.  And going back, there was an injunction in 1985,  5 I believe, against the -- perhaps it was in '86, an  6 injunction taken against the bylaws.  7 Q   Just so we get our dates correct, was the injunction  8 against the bylaws taken after the minister allowed  9 them?  10 MR. GOLDIE:  Why don't you lead on this point.  11 THE WITNESS:  Yes, I think it was.  12 MR. MACAULAY:  Not at all.  It was quite clear it was after.  13 MR. RUSH:  14 Q   All right.  Mr. Sterritt, I understand in the first  15 part of April of 1986 the minister allowed the bylaws?  16 A   That probably is the date.  I can't quite remember.  17 Q   And it's my understanding as well that on June the  18 15th of 1986 — excuse me, June the 16th of 1986 that  19 a restraining order was obtained by the Attorney  20 General of the Province of British Columbia on behalf  21 of a number of --  22 THE COURT:  What was the date?  23 MR. RUSH:  16th of 1986.  24 THE COURT:  16th of?  2 5 THE REGISTRAR:  June.  26 MR. GOLDIE:  I think that more correctly was described it was  27 obtained by the relaters.  2 8 MR. RUSH:  29 Q   And is it your understanding that that was appealed to  30 the Court of Appeal of British Columbia?  31 A   Yes.  32 Q   And the appeal was not successful?  33 A   That's right.  34 Q   And there has been an appeal to the Supreme Court of  35 Canada?  36 A   Yes.  37 Q   And that appeal is outstanding?  38 A   Yes.  39 THE COURT:  Has leave been obtained?  40 MR. RUSH:  Leave has been obtained.  41 Q   Now, Mr. Sterritt, just to back you up slightly, you  42 mentioned in your testimony that there had been some  43 pressures on the Indian fishermen, and I wonder if you  44 could elaborate on what type of pressure you were  45 referring to when you said that?  46 A  Well, whenever we won a court case against the  47 Department of Fisheries and Oceans, they rewrote their 7153  N.J. Sterritt ( for Plfs.)  In chief by Mr. Rush  1 regulations.  In effect from about 1979 to 19 -- well  2 it's still going on, but for a number of years we  3 assisted, I guess, the Department of Fisheries and  4 Oceans in rewriting the regulations, because we won a  5 number of cases.  It resulted in increased enforcement  6 and other ways of finding ways to charge the people  7 for infractions on the river.  One of the things that  8 developed was that the Department of Fisheries and  9 Oceans would take the nets.  10 Q   Would take —  11 A   Take nets from the fishermen on the river, and would  12 not return them, and this created an economic hardship  13 to the fishermen.  14 MR. MACAULAY:  My Lord, I object to that, to the extent that  15 it's hearsay.  16 MR. RUSH:  I appreciate my friend's objection.  I am not going  17 to pursue that.  18 MR. MACAULAY:  I don't know to what extent Mr. Sterritt was a  19 knowledgeable person, but I don't think he was present  2 0 everywhere along the river.  21 THE COURT:  Thank you.  22 MR. RUSH:  23 Q   Mr. Sterritt, were you directly involved in assisting  24 hereditary chiefs in the return of seized nets in the  25 Department of Fisheries and Oceans?  2 6 A   Yes, I was.  27 Q   Over how many summers were you involved in this?  28 A   For four or five summers I was involved in that.  I  29 signed bonds on behalf of the fishermen as president  30 of the Tribal Council to go and get the nets back.  I  31 also went and got some nets back directly.  32 Q   And these nets were returned to the fishermen from the  33 Department of Fisheries and Oceans?  34 A   Yes, they were.  35 Q   And returned to hereditary chiefs, whom you knew to be  36 fishermen?  37 A   Yes.  And hereditary chiefs accompanied me on one  38 occasion when we went and returned the nets ourselves  39 from the Department of -- well, the conservation  40 office actually.  41 Q   And that was in Hazelton, was it?  42 A   New Hazelton.  43 Q   New Hazelton.  All right.  Now, you indicated, Mr.  44 Sterritt, that you were involved in direct  45 correspondence with officials and representatives from  46 the Department of Indian Affairs and other government  47 bodies with regard to the language and the development 7154  Submissions by Counsel  In chief by Mr. Rush  1 of the Fisheries bylaws, is that so?  2 A   Yes.  3 Q   And you drafted and sent a number of letters in  4 respect of the development of the drafts of the  5 bylaws?  6 A   Yes.  7 Q   And counsel was also involved, were they?  8 A   Yes.  9 Q   And you received copies of correspondence that had  10 been received by counsel in relation to these bylaws?  11 A   Yes, I did.  12 Q   And was this in the years from 1983 to 1986?  13 A   Yes.  14 Q   All right.  Would you turn to Tab 30, please.  15 MR. MACAULAY:  That's the point at which I anticipate that my  16 friend is going to put the several tabs to the  17 witness.  Perhaps this is the appropriate time to make  18 the objection.  I didn't object to a general narrative  19 of what went on.  That may be, for all I know, an  20 important part of the plaintiffs' case.  We're now  21 getting into the details, issues -- I'll just take one  22 as an example.  It's a letter by -- from this witness,  23 from Mr. Sterritt to Indian Affairs that's at Tab 45.  24 A letter dated October 26th, 1984.  25 THE COURT:  Planning to tender this, Mr. Rush?  26 MR. RUSH:  Pardon me?  27 THE COURT:  Are you planning to tender this letter?  28 MR. RUSH:  Yes.  And especially if Mr. Macaulay refers to it.  29 MR. MACAULAY:  Well, I am using that as an example of what's  30 dealt with in this -- the kind of thing that's dealt  31 with in this correspondence.  This letter and all the  32 others have production numbers.  You will see 115.  33 This is 115.  That is in another action, and they are  34 exhibit stamps and, of course, that's in another  35 action, so this is being carefully considered by this  36 court in its proper context.  The letter deals with  37 such things as who should negotiate with the Tribal  38 Council, and I refer to the bottom of page two and the  39 top of page three where the witness says in his  40 letter:  41  42 "Furthermore, it became apparent in September  43 the third parties not previously been  44 involved in negotiations were becoming  45 involved in new discussions of the bylaw as  46 demonstrated by a memo of September 4th, 1984  47 from Dennis Novak to to Mr. Hodgkins." 7155  Submissions by Counsel  In chief by Mr. Rush  1  2 Also on page two he brings up the question of  3 whether or not the Department of Fisheries and Oceans  4 had any right to comment on drafts.  On that same page  5 it was suggested that the Department of Indian Affairs  6 was not negotiating in good faith, because they raised  7 matters that were not raised at an earlier meeting,  8 the 11th meeting.  Then at page three the question is  9 raised whether or not the Tribal Council ought to be  10 required to negotiate with the Fisheries and Oceans,  11 and at page four whether the minister, that is the  12 Minister of Indian Affairs, ought to attempt a legal  13 interpretation of a draft.  In the middle of the page  14 he says:  15  16 "Again I must reiterate that we do not  17 believe that it is the responsibilities of the  18 minister or his staff to complete the legal  19 interpretation and to disallow any bylaw which  20 they vaguely suspect as not being entirely  21 accurate."  22  23 At pages -- at the bottom of page four and the top  24 of page five the -- this witness addresses the  25 question whether the department was -- that is Indian  26 Affairs was bias, because it refused to recognize the  27 laws of the Gitksan.  And again on page five whether a  28 fishing bylaw had paramouncy over the Fisheries Act,  29 which is a legal question, an interesting legal  30 question.  All those things, all that detail, and this  31 correspondence deals with that kind of thing.  And the  32 correspondence deals with another interesting  33 question, and that is whether or not the medium finium  34 rule of the common-law applies to the boundaries of  35 reserves, that is whether the boundary of the reserve  36 extends out to the middle of the river, or rather the  37 rights -- whether indeed whether the boundaries extend  38 out.  There are all those interesting questions which  39 will be dealt with by the courts at the appropriate  40 time, but all this detail is not relevant to any -- to  41 the matters that Your Lordship has before you.  42 Now, the next letter at Tab 46 is the Indian  43 Affairs reply.  It's explained that Mr. Hodgkinson  44 signed some letter while the appropriate person was on  45 leave.  That was in connection with one of the  46 allegations of bad faith.  In discussing contents of  47 the bylaw and what words should be deleted from the 7156  Submissions by Counsel  In chief by Mr. Rush  1 then current draft, there was some discussion about  2 the word "traditional land", whether the bylaw should  3 be made applicable to traditional land in addition to  4 reserves.  Now, those are interesting and important  5 questions, both for the Government of Canada and for  6 the Tribal Council, and the bands that are directly  7 effected, but they are not matters that are before  8 Your Lordship.  9 Now, this general narrative gives you some idea of  10 what this witness was doing about bylaws, and what's  11 been happening, but that's just going to fill up the  12 record with trivia, and I think it's my duty to  13 object.  This is on a quite different footing than the  14 correspondence concerning traplines.  The question of  15 traplines is inextricably intertwined with the  16 question of the rights to land, aboriginal rights, no  17 matter how, whether you accept the plaintiffs'  18 definition of what an aboriginal right is or someone  19 else's definition, but this is -- this doesn't qualify  20 in that way at all.  It is a separate topic subject.  21 In fact it's inconsistent with the proposition of the  22 sovereignty.  The plaintiffs' case is that they are  23 the sovereign owners of this land.  Now, that doesn't  24 omit any question of boundary or reserves or  25 co-management or any of those other things, fishing  26 bylaws under the Indian Act.  It's difficult to  27 understand how that could be part of the plaintiffs  28 case.  And my objection is only to the -- obviously  29 there is a great deal more correspondence than this,  30 but like I said, there was two years worth of  31 correspondence, I think.  And a selection from those  32 files dealing with that kind of subject is not going  33 to help anyway.  That's my submission.  34 THE COURT:  Thank you. Mr. Goldie.  35 MR. GOLDIE:  Well, My Lord, my understanding is that this is all  36 being tendered for the limited purpose of  37 demonstrating Mr. Sterritt's scope of his duties and  38 not for the truth of the matter stated.  In that case  39 I have already said what I have to say about the  40 degree of -- to which that is required.  41 THE COURT:  Thank you. Mr. Grant — I'm sorry, Mr. Rush.  42 MR. RUSH:  Well, I hate to -- the documents here are being  43 tendered for reasons more than as an explicated by my  44 learned friend, Mr. Goldie, and these documents relate  45 specifically to the points raised by my learned friend  46 Mr. Macaulay.  The defence put forward by The province  47 in 33A is that: 7157  Submissions by Counsel  In chief by Mr. Rush  1  2 "The title of the Crown to the land of what is  3 now of the Province of British is not now or  4 never has been burdened or excluded by  5 aboriginal right, title or owner jurisdiction,  6 but if it was that burden was discharged by  7 the voluntary acts of the Crown in setting  8 aside particular tracks of lands as reserves  9 for the use and benefit of Indians."  10  11 What the Crown Federal expresses in these documents  12 in no uncertain terms, that the fishery, and the land  13 underlying the fishery, were not intended to be part  14 of the reserves, so the question is when the reserves  15 were set up, what did the Gitksan and Wet'suwet'en  16 Indians get.  And the argument that is being advanced  17 in this correspondence, and I suggest adopted by the  18 Province, is that if they got land, it didn't include  19 land that included their fisheries.  And I say what --  20 why this is relevant, My Lord, is that it demonstrates  21 that if there was any value in the land, that was  22 attached, and intended to be attached with regard to  23 the fishery, then the argument that they didn't get  24 the fishery certainly depreciates the value of what it  25 is said that they got.  26 Now, this series of correspondence not only shows  27 the sorry state of the efforts within the parameters  28 of the Indian Act for the chiefs and certain Band  29 Councils to obtain statutory authority for a limited  30 management of their fishery, and how in the end it was  31 frustrated, but in my submission it contains very  32 express statements of the Federal Government against  33 their interests about what they see to have been  34 included within the reserve allocations as a result of  35 the MacKinnon McBride allocations in 1915 and  36 subsequently.  That issue, My Lord, is presently being  37 litigated in the Provincial courts of British Columbia  38 in criminal matters.  39 Now, in my submission this correspondence is  40 material, very material to provide Your Lordship with  41 an insight and the evidence of the position of the  42 Federal Crown.  And I say it speaks directly to the  43 defence raised by the Province in 33A, and I might add  44 adopted by the Federal Crown in their defence.  And so  45 I submit, with respect, that this correspondence ought  46 to be placed before Your Lordship.  47 I say as well, My Lord, that if there is a concern 715?  Submissions by Counsel  In chief by Mr. Rush  1 about filing the other material, I am happy to file it  2 all.  There is an affidavit that this correspondence  3 was appended to, the affidavit of Mr. Sterritt.  I am  4 happy to file that affidavit, and I will file if need  5 be.  What I extracted from the affidavit was that the  6 most relevant exchanges of correspondence between  7 representives of the Ministry, representatives of the  8 government of the day and Mr. Grant, Mr. Sterritt and  9 others.  Now, in my submission, My Lord, for the  10 reasons I have indicated, that this evidence is  11 material and should be heard.  12 THE COURT:  All right.  Well, I have to take an adjournment.  13 It's that time anyway.  A matter I have to attend to.  14 But when I come back, Mr. Rush, I would like to have  15 your assistance on this question, that it seems to me  16 that your claim is based upon aboriginal rights to  17 title or some lesser -- arising for historical reasons  18 that pre-dated this material.  And what this material  19 appears to relate to, and I haven't had a chance to  20 read any of it, but it appears to relate to a somewhat  21 treacherous attempt to negotiate an arrangement that  22 dealt with a small part of the major -- the total  23 problem.  Is it, I ask rhetorically, necessary for me  24 to know the details of those negotiations?  I am not  25 going to be assisted, am I, by saying the Department  26 acted fairly or the department acted very badly.  It  27 doesn't seem to me that it would matter whether  28 they -- one side or the other took an unfair or a  29 difficult or a bad faith position.  The fact is that  30 it seems to me Mr. Sterritt could state that we had  31 two years, as he already has, two years of  32 frustrating, torturous and only partially successful  33 negotiations, and if there is any disagreement with  34 that, no doubt I will hear about it.  As I say, I am  35 reluctant, starting -- I am reluctant, starting now,  36 after all the -- after the course of the trial to  37 date, to start saying, well, I am not going to hear  38 something that counsel say they ought to have as part  39 of their case, but I have to say to counsel at the  40 moment I am troubled about this case getting too far  41 afield, and that it went a long way -- maybe we  42 haven't gone very far afield, it may all come together  43 at the end, and if there is any risk of that, then I  44 propose to hear the evidence.  But at the moment it  45 doesn't matter to me what the details of those  46 negotiations were, either the plaintiffs had rights  47 before these discussions started, or almost before.  I 7159  Submissions by Counsel  In chief by Mr. Rush  1 notice the first letter is May 17th of '83, which is  2 before the commencement of the action.  But the rights  3 were crystallized, whatever they were, I'm sure by  4 that date, and I have to -- you have to satisfy me,  5 Mr. Rush, that it is necessary for me to know all the  6 particulars in the negotiations, or at least selected  7 portions of the details, and I'll be glad to hear from  8 you on that further question in what I hope to be a  9 very few minutes.  10  11  12 I HEREBY CERTIFY THE FOREGOING TO  13 BE A TRUE AND ACCURATE TRANSCRIPT  14 OF THE PROCEEDINGS HEREIN TO THE  15 BEST OF MY SKILL AND ABILITY.  16  17    18 LORI OXLEY  19 OFFICIAL REPORTER  2 0 UNITED REPORTING SERVICE LTD.  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  4 7 (PROCEEDINGS RESUMED PURSUANT TO A SHORT ADJOURNMENT) 7160  N.J. Sterritt (for plaintiffs)  Submissions by counsel  1 THE REGISTRAR:  Order in court.  2 THE COURT:  Mr. Rush?  3 MR. RUSH:  The first point I would make is that the bylaws --  4 MR. GOLDIE:  Excuse me.  Before my friend replies to your  5 lordship's question, I don't know whether your  6 lordship intended to ask me if I had anything to say.  7 THE COURT:  I'll be glad to hear from you, Mr. Goldie.  8 MR. GOLDIE:  My friend ought to hear what I have to say before  9 he makes his reply --  10 THE COURT:  All right.  11 MR. GOLDIE:  -- because he indicated that his purpose in  12 tendering these documents was far different than what  13 I had in mind.  14 Now, my understanding of what all of this is about  15 relates constitutionally to Canada's power to regulate  16 the fisheries as opposed to the proprietary interest  17 of the fisheries.  I may have stated it superficially,  18 but essentially that's what it's all about.  So far as  19 I'm aware, Canada's constitutional power to regulate  20 fisheries is not an issue in this case, and I can  21 state that it's got nothing to do, as far as I can  22 see, with Paragraph 33A of the defence.  23 The reference has been made to the injunction.  24 That aspect arose out of the concerns of commercial  25 fishermen about the potential impact of this dispute  26 or negotiation or arrangement with respect to  27 regulation.  But constitutionally the extent of the  28 federal power of regulation is not an issue.  It's got  29 nothing to do with Paragraph 33, and if I had known  30 that my friend was tendering them -- this material on  31 that purpose, I would have objected to it on that  32 basis.  33 THE COURT:  Thank you.  Anything further, Mr. Macaulay?  34 MR. MACAULAY:  If any of these letters can be construed as  35 admissions by the Federal Crown, relevant admissions,  36 then the proper course for my friend to take is to  37 list these documents.  I don't believe they are  38 listed, and to serve a notice to admit.  39 THE COURT:  Well, there's no requirement to doing that though,  40 is there?  One can prove an admission that way, but  41 one can also prove it as other ways in trial.  42 MR. MACAULAY:  I think it's a requirement to list it.  43 THE COURT:  Are these documents not listed?  4 4 MR. MACAULAY:  I don't think so.  45 THE COURT:  Not listed in any list?  46 MR. MACAULAY:  Certainly not in ours, I don't believe in the  47 plaintiff's or the Province's. 7161  N.J. Sterritt (for plaintiffs)  Submissions by counsel  1 MR. RUSH:  My lord, it's true these documents are not listed on  2 a list.  However, I think up to I believe it's a week  3 and a half ago, I wrote to my learned friends and told  4 them that these documents would be -- could be used in  5 the -- in the examination of Mr. Sterritt.  As a  6 result of that, the Province wrote and asked for  7 copies of certain of the documents.  They didn't ask  8 for copies of these.  I got no response from the  9 Federal Crown, so I expressed at that time that we  10 were attempting to get these onto the document list.  11 They've had, in my submission, adequate notice of the  12 fact that these documents were to be used in the  13 examination or could be used in the examination, and,  14 as I say, we're still trying to get them on a list.  15 Now, is the fact that they're not listed the --  16 the issue in this objection, because this -- these  17 documents were given to the Federal Crown in 1986.  18 THE COURT:  I think that's a different — that's a different  19 question of -- listing is another issue that I think I  20 should deal with separately from the question of  21 admissibility generally.  I'd like to hear you on the  22 question of whether it's necessary to have the  23 evidence, the details of these negotiations, or  24 whether it isn't possible to take advantage of that  25 marvellous human capacity for summarization, which is  26 denied to computers and mechanical devices.  It seems  27 to me, as I said before, subject to what you have to  28 say, that this whole question of difficulty of  29 negotiations and that sort of thing is something that  30 can be summarized quickly and that it isn't necessary  31 to receive all these documents.  32 MR. MACAULAY:  Before — before we get on to that issue, my  33 lord, we received a summary of Mr. Sterritt with  34 attached to it a page entitled "Documents relating to  35 Neil J. Sterritt".  And if that's what my friend's  36 referring to -- he refers to an affidavit of Ben  37 Williams in Wale, an affidavit of Victor Jim in Wale,  38 notes of discussions with Chris Harris, hereditary  39 chiefs' working map, letters concerning lack of  40 trapline proposal, correspondence regarding black  41 water trapline and photos.  These documents don't fit  42 any of those categories.  We first saw these -- no  43 doubt there's a file somewhere in in Vancouver with  44 these documents in it.  The first time we saw these  45 was when the book was handed to us.  4 6    THE COURT:  All right.  Thank you.  Mr. Rush?  47    MR. RUSH:  These documents are exhibited in Mr. Glen Williams' 7162  N.J. Sterritt (for plaintiffs)  Submissions by counsel  1 affidavit.  2 MR. MACAULAY:  It says Neil Sterritt's affidavit on the face of  3 them.  4 MR. RUSH:  In Neil Sterritt's affidavit.  It's part of Glen  5 Williams' affidavit.  6 The first issue that I want to reply to, my lord,  7 is the point made by my learned friend, Mr. Goldie,  8 that the only issue that he sees here is a question of  9 the constitutional power of Canada to regulate the  10 fishery.  There is an intertwining character to the  11 constitutional powers here between the power to  12 regulate the fishery and the federal power to deal  13 with lands, Indian lands, reserves for Indians.  And  14 it, as you referred in the evidence, is the latter  15 that this evidence is directed to.  In particular, the  16 question that -- under the department of -- under the  17 Indian Act there is a bylaw making power, and it was  18 that power that was invoked here, and so it is the  19 constitutional power with respect to Indians and land  20 reserves for Indians that is the issue and not the  21 regulation of the fishery.  22 The point of the documents is, firstly, the issue  23 of what constitutes a reserve.  And as I've tried to  24 urge upon your lordship, that statements made in the  25 course of the negotiations pertain on both sides of  26 the negotiations as to what in fact was meant by a  27 reserve and, indeed, in the first of the letters that  28 I was to have referred Mr. Sterritt at Tab 30, there  29 is a sketch, a rough sketch attached to the letter  30 that was directed to the Honourable Judge Munroe,  31 Minister of Indian Affairs, in which it sets --  32 postulates a number of -- of options with regard to  33 what the hereditary chiefs and of the Gitwangak  34 village meant by the meaning of reserve.  35 THE COURT:  Well, where you're losing me, Mr. Rush, and we have  36 to get me back is that if you're right in your cause  37 of action, then surely the reserves are  38 inconsequential.  They're no longer of any importance,  39 are they?  40 MR. RUSH:  Well —  41 THE COURT:  If your clients have the ownership and jurisdiction  42 of the territory, or if they have aboriginal rights  43 over the territory, short of ownership and  44 jurisdiction, then does it matter what the -- what the  45 boundaries of the reserves are?  46 MR. RUSH:  No, it doesn't, except insofar as there is a defence  47 that relates directly to the issue.  If we're wrong in 7163  N.J. Sterritt (for plaintiffs)  Submissions by counsel  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:  any aspect of that, where does that leave the  plaintiffs if we don't examine, in our submission,  evidence that pertains to the defences that are  raised?  :  Well, is there an alternative claim here that if all  else fails, I should define the boundaries of the  reserves?  No.  There's no such alternative, but what I'm saying  here is that there is a defence that's raised that  asserts that the reserves constitute the  relinquishment of any title that Indian people may  have had, and I think that it is an issue of  considerable importance among all of the parties,  because there are differences between the Province and  Canada on what constitutes the reserve.  Now, in my submission, this evidence is directed  at disclosing to your lordship what constitutes in the  eyes of the Federal defendant, at least, the -- their  perception of what is contained within the meaning of  reserve, because I don't think it is a straightforward  matter, as I think you've been led to believe, in  respect of this defence, led to believe by the  Province in filing the sketches of the reserves that  somehow the sketch is the -- is the definitive  statement of what constitutes a reserve.  Now, as I say, this -- this is directed at their  defence, and I -- in my submission, we have to deal  with defences whether we like it or not, and we're  certainly -- our position is that the Gitksan and  Wet'suwet'en people have aboriginal title, ownership  and jurisdiction over their territories, which include  the reserves and the reserve fisheries.  Now -- so that really is my first point.  And I'm  repeating what I said to your lordship prior to the  break.  I think the exchange in correspondence here  discloses the position of the hereditary chiefs in  respect of the Gitwangak Band and the Federal Crown  with regard to what they perceive to be not just  reserves but traditional lands, as the language was  used there, because throughout the debate is whether  or not the bylaws could have the effect of reaching to  waters which were not waters that were adjacent to the  reserve.  So, in my submission, it is relevant to your  lordship to know what the position of the Federal  Crown was in respect of the proposed bylaws in the  drafts that were advanced.  And I should point out to 7164  N.J. Sterritt (for plaintiffs)  Submissions by counsel  1 your lordship that in Tab 31, the Minister of Indian  2 Affairs, at that time the Honourable John Munroe,  3 expressly states what the position of the Federal  4 Government was in disallowing the proposed bylaw at  5 that time.  6 Now, the second basis, I think, of relevance for  7 this correspondence is that throughout the  8 correspondence it is evident that on behalf of the  9 chiefs, Mr. Sterritt and, to a certain degree, Mr.  10 Graham, advance that it is the aboriginal title that  11 the chiefs are seeking to assert through the bylaws,  12 and I think that that too is relevant; that, in fact,  13 by using an instrumentality of statutes such as this,  14 that this is not in some way giving over to the  15 jurisdiction of some other authority, but is an  16 attempt to utilize that jurisdiction in order to  17 assert aboriginal title.  And I think that that is  18 evident in the correspondence.  19 Once again, my third point, my lord, is that the  20 correspondence discloses the involvement of the  21 hereditary chiefs in an attempt in the course of the  22 drafting of the bylaws to invoke the Gitksan and  23 Wet'suwet'en laws and practices through the  24 instrumentality of the bylaw, and I think that the  25 correspondence again discloses the resistance by the  2 6 Federal Government to doing that.  27 Also, in the course of the examination,  28 particularly by the Province, there has been  29 examination of Dan Michell, Wigetimstochol, and Glen  30 Williams both on the question of their role in the  31 bylaw making, this -- this particular power that they  32 invoked on behalf -- that they participated in in  33 respect of their respective bands.  And the question  34 of the drafting process and the various stages through  35 which the bylaws passed in their draft form was a  36 subject of cross-examination of Mr. Williams.  The  37 bylaws themselves were introduced through Mr. Dan  38 Michell, the Moricetown bylaws.  39 Now, in my submission, in respect of the drafting  40 process, it is relevant for you to know how it came to  41 be that these various drafts were prepared and that  42 they were submitted and what happened to them.  And I  43 say that that's what these drafts disclose.  And I ask  44 your lordship to allow me to proceed.  4 5    THE COURT:  Thank you.  46 MR. GOLDIE:  My lord, I hesitate to burden your lordship any  47 further, but you should be aware of the reply to the 7165  N.J. Sterritt (for plaintiffs)  Submissions by counsel  Ruling  1 defence to which my friend is referring.  Paragraph  2 33A, which he relies upon as having some relevance  3 here, was replied to, and these are the words in  4 paragraph 2D:  5  6 "In reply to Paragraph 33A of the furnished  7 amended statement of defence, the plaintiffs  8 say that the title of the Crown to the lands  9 of what is now the Province of British  10 Columbia has been and is now burdened and  11 subject to the aboriginal rights, title,  12 ownership and jurisdiction of the  13 plaintiffs, and such was not discharged by  14 the voluntary acts of the Crown or otherwise  15 in setting aside particular tracks of land  16 as reserves for the use and benefit of the  17 plaintiffs and their ancestors."  18  19 So they clearly understood that the issue was the act  20 of setting aside in effect the burden of the Crown,  21 not the boundaries of the reserves or anything like  22 that.  2 3    THE COURT:  Thank you.  24 I am satisfied that it is not necessary or  25 relevant for the plaintiffs to adduce in evidence the  26 documents and details of the negotiations with the  27 agencies of the Federal Government or with the  28 Provincial Government, if they were involved, relating  29 to the fishing bylaws passed and disallowed or passed  30 and not disallowed by the minister.  31 I do not preclude the plaintiffs from adducing  32 evidence from Mr. Sterritt about the fact of  33 negotiations and, indeed, the difficulties.  But the  34 drafting and the suggestions back and forth as to  35 wording, in my view, are details that are not relevant  36 and would add unreasonably to the burden of evidence  37 in this case.  38 Having said that, however, I would allow Mr. Rush  39 to adduce any of this material if he wishes to put it  40 forward, not for the general purposes stated but as,  41 for example, an admission, as he mentioned a moment  42 ago, or upon any other basis which the ingenuity of  43 counsel may suggest.  44 In addition, so as to ensure the completion of the  45 record, I would allow Mr. Rush, if he wishes, to have  46 the correspondence that I have described as the  47 details marked as exhibits for identification so that 7166  N.J. Sterritt (for plaintiffs)  Ruling  Exam in chief by Mr. Rush  1 if it should be later determined that I am in error in  2 this ruling, that the material upon which he seeks to  3 rely would be before the Court and could be used upon  4 such a determination to be made.  Mr. Rush can  5 indicate at some time, not necessarily right now,  6 which of the documents he wishes to tender for  7 identification in the way I have just described, and  8 that can be done when it is convenient.  I don't think  9 there's anything else that I need to say.  10 MR. RUSH:  Thank you, my lord.  11 Mr. Sterritt, I'm going to direct your attention  12 now to Exhibit 248B.  This is in the evidence of Dan  13 Michell, in one of the document books introduced at  14 that time.  15 THE REGISTRAR:  You don't have a copy there?  16 MR. RUSH:  I have a copy.  I'll be happy to show it.  17 Now, Mr. Sterritt, I'm showing to you Exhibit  18 248B.  19 THE COURT:  I'm sorry.  248?  20 MR. RUSH:  Yes.  248B, entitled "A Bylaw for the Preservation,  21 Management, Conservation and Use of Fish on Reserve  22 and Traditional Lands, Rivers and Waterways of the  23 Moricetown Band".  And this document, in my copy at  24 least, does not appear to be dated, although I thought  25 that a date had been --  26 THE COURT:  Well, on the bottom of page 12 —  27 THE REGISTRAR:  Band Council Bylaw.  28 MR. RUSH:  Yes.  I see.  29 THE REGISTRAR:  February 28th.  3 0 MR. RUSH:  31 Q   I have two blank pages in this copy and I thought that  32 the date appeared after that.  Thank you.  33 It's dated, Mr. Sterritt, on the 18th of day of  34 February, 1986.  To your knowledge were bylaws -- were  35 similar bylaws passed by other Gitksan or Wet'suwet'en  36 bands at the same time or thereabouts?  37 A   Yes.  38 Q   Okay.  Mention has been made of a Gitwangak bylaw.  39 Was a similar bylaw as this one that's shown as  40 Exhibit 248B, was it passed by the Gitwangak Band?  41 A   Yes, it was.  42 Q   And to your knowledge were there bylaws passed by  43 other bands that --  44 A   Yes.  The Kispiox Band and the Gitanmaax Band.  45 Q   And were these -- the bylaws that are contained here  46 in Exhibit 248B, are these the bylaws that were  47 eventually allowed by the Minister of Indian affairs 7167  N.J. Sterritt (for plaintiffs)  In chief by Mr. Rush  1  2  A  3  THE COURT  4  MR. RUSH:  5  Q  6  7  A  8  Q  9  10  11  12  13  14  A  15  Q  16  17  18  19  20  A  21  Q  22  23  24  A  25  26  Q  27  A  28  29  30  Q  31  A  32  33  34  35  36  37  38  39  40  41  42  Q  43  A  44  45  46  Q  47  in April of 1986?  Yes.  :  Not disallowed as to all of those villages or bands?  The minister did not disallow them in respect of any  of the four villages; is that right?  Yes.  Yes.  That's right.  Now, so far as your involvement  went, Mr. Sterritt, and your knowledge as a result of  your participation in the negotiation of these bylaws,  I'd just ask you to look at the whereas clauses, ask  you if that correctly -- if those whereas clauses  correctly set out the intention of the bylaws?  Yes, they do.  Yes.  All right.  Thank you.  Now, in relation to this  bylaw, Mr. Sterritt, was there a proposal for the  implementation of a commercial inland fishery relating  to the fisheries that were the subject-matter of these  bylaws?  Yes.  And can you -- could you tell his lordship what the  proposal for the commercial inland fishery was and how  it related to the bylaws?  The proposal was that we would harvest 10,000 salmon  in the -- during the summer as a test fishery.  Is this in the summer of 1986?  Yes.  And we -- one of the reasons we wanted the --  required the bylaws was to do that, and we made -- we  were making plans to proceed with that.  Now, by "we", who do you mean?  The -- the band council's involved and the hereditary  chiefs in -- with the band council.  The Department of  Fisheries and Oceans refused to allow us to do that.  They -- we had, through the work of our biologist,  established that there would be plenty of fish to have  a test fishery that summer.  We made this known to the  Minister of Fisheries and Oceans and to the Minister  of Indian affairs, and they still refused to allow us  to do that.  The -- as a matter of fact, when I was in  Ottawa, I informed them that it was our understanding  there would be a surplus of fish that year and --  This, again, you're talking about the summer of 1986?  Yes.  And they still refused to acknowledge that we  could implement a commercial inland fishery that  s umme r.  And since the summer of 1986, have the Gitksan and  Wet'suwet'en hereditary chiefs been able to establish 716?  N.J. 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  a commercial inland fishery?  A   It has been resisted every year.  In that year there  was a -- the hereditary chiefs were quite outraged  because there was a surplus of 1.6 -- over a million  fish went to the spawning grounds and could not get to  the spawning grounds.  We went up.  We looked at the  situation.  We saw the fish.  That is, a number of the  people from the tribal council went up to see what was  happening on the spawning grounds, and there were fish  in the neighbourhood of three or four hundred thousand  fish circulating below the fish barrier at Fulton  River, at the spawning channels of Fulton River.  And  this was still at a time when the Department of  Fisheries and Oceans would not acknowledge that we  could proceed with the commercial inland fishery  when -- and so we took pictures of that.  Q   When you say "we", were you involved in that?  A   Yes.  I took the pictures and other persons took  pictures.  And we were also informed that the fish  that were there were spawning and that -- that it  didn't matter that there were so many fish at the  entrance.  They would spawn in the lake anyways.  They  only needed in the neighbourhood of, I think, 100,000,  a couple hundred thousand fish to go into the Fulton  River spawning channel.  And there was about 400,000.  There was a total of about 1.2 million fish that did  not get to the spawning grounds and that were wasted,  in effect.  And so that was -- kind of highlighted the  emotions that were going on and the problems that we  were encountering, and our information was there was  enough fish for us to do a test fishery of 10,000  salmon.  THE COURT:  Well, Mr. Sterritt, I've lost something here.  I'm  sure there's a simple answer to this.  But in the  summer of 1986 when you wanted to have this test, your  bylaw had not been disallowed?  RUSH:  My lord, it had been restrained by a restraining  order in June of --  COURT:  I'm sorry then.  But Mr. Sterritt said that Ottawa  said no.  WITNESS:  Department of Fisheries and Oceans.  RUSH:  Yes.  I think that —  COURT:  That's where I'm lost.  RUSH:  Q   All right.  I'll pursue that.  Thank you.  Now, his lordship has directed your mind to the  question that it was Ottawa that had rejected the idea  MR.  THE  THE  MR.  THE  MR. 7169  N.J. Sterritt (for plaintiffs)  In chief by Mr. Rush  1 of a commercial inland fishery.  What did you mean by  2 that when you said it was Ottawa?  Firstly, who was it  3 in Ottawa?  4 A   I meant the Department of Fisheries and Oceans.  5 Q   And when you say they rejected the proposal of a  6 commercial inland fishery, what do you mean by that?  7 A  We intended to implement a commercial inland fishery  8 that summer.  They had their enforcement officers  9 available to stop us from doing that, and there was  10 also a restraining order from the courts to prevent us  11 from proceeding with that.  12 Q   Okay.  Was there enforcement of fisheries regulations  13 against an attempt to establish the commercial inland  14 fishery?  15 A   Yes.  16 Q   Were charges laid against Gitksan and Wet'suwet'en  17 people in that summer?  18 A   Yes, there were.  19 Q   And there has been some evidence in the proceedings  20 about a fish camp or fish camps that were established  21 in that summer.  Do you have knowledge of that?  22 A   Yes, I do.  23 Q   Where were these fish camps established?  24 A   There were two fish camps:  One at Ant Kii iss  25 Gitwangak.  Stanley Williams referred to that in his  26 evidence, that location.  And there was another fish  27 camp at Gwin oop at Kispiox, and Gitludahl, Pete  28 Muldoe, referred to that fishing site.  29 Q   And how were these fish camps related, if they were,  30 to the bylaws or the proposals for a commercial inland  31 fishery?  32 A   The hereditary chiefs and the Gitksan and Wet'suwet'en  33 people generally were outraged and decided to proceed,  34 in any event, with the fish camps and to take fish and  35 to sell fish.  36 Q   And were those -- did those sales occur through these  37 particular camps or at these camps?  38 A   Yes.  There were sales and there was barter.  Fish  39 were traded.  40 Q   All right.  And, to your knowledge, was it at these  41 points where there were -- the enforcement of the  42 fisheries regulations occurred?  43 A   Yes.  44 Q   Now, at this time, I take it, Mr. Sterritt, that  45 nothing has changed in respect of the situation that  46 existed in the summer of 1984 so far as the  47 implementation of the bylaws goes? 7170  N.J. Sterritt (for plaintiffs)  In chief by Mr. Rush  1 A   That's right.  2 Q   The bylaws are still under a restraining order from  3 the courts?  4 A   Yes, they are.  5 MR. GOLDIE:  You said 1984.  You mean 1986?  6 MR. RUSH:  7 Q   Thank you.  1986.  8 Now, I'd like to direct your attention now to  9 matters pertaining to logging.  As the director of  10 land claims or later as president of the  11 Gitksan-Wet'suwet'en Tribal Council, were you involved  12 in bringing to the attention of the Provincial or  13 Federal Governments complaints of the Gitksan and  14 Wet'suwet'en hereditary chiefs to logging or logging  15 practices in their territories?  16 A   Yes, I did.  In particular to the Provincial  17 Government.  18 Q   And can you recall what your first involvement was in  19 that respect?  20 A   The -- the -- in 1975, actually, was my first  21 involvement when the Kitsegukla Band blockaded the  22 road at -- just off Highway 16 at -- it was called  23 Skeena Crossing, where the railroad crosses, to  24 prevent logging in their territory.  25 Q   Were you present during this?  26 A   Yes, I was.  They blockaded that road for about two  27 weeks.  And at the end of that -- it ended up in some  28 negotiations with the owners of the mill.  And that  29 was one of the first times.  The second time Jeff  30 Harris, Luus, came to see me.  And he was very  31 concerned about the logging.  I mentioned this  32 already.  But he wanted to hold a fast, and he wanted  33 other hereditary chiefs to join with him and to go and  34 stop the logging on his territory.  When I -- there  35 were other instances, but when I became president, the  36 executive director, Don Ryan, brought to my attention  37 a letter or a presentation that had been done in 1981  38 to the B.C. Forest Service in response -- or to the  39 Ministry of Forests in response to a -- a report on  40 the Kispiox T.S.A., which recommended intensification  41 of the logging within that T.S.A.  And that brief was  42 presented in New Hazelton in the summer of 1981.  And  43 there was response demanded or requested by the  44 persons who presented that report, and, to my  45 knowledge, there's never been a reply.  It -- it  46 refers to the problems that have existed for some time  47 and continue to exist today.  There was -- a couple of 7171  N.J. Sterritt (for plaintiffs)  In chief by Mr. Rush  1 years ago, there was a proposal to log the Stevens  2 Creek area, and the hereditary chiefs, Geel in  3 particular, Gitludahl, Pete Muldoe, Delgamuukw, Albert  4 Tait, were very concerned with a proposal to log the  5 Stevens Creek area, because it was an important area  6 for steelhead and coho spawning, and also very  7 important area for game habitat as well as being the  8 territory of Geel, Walter Harris.  Another area that  9 was of great concern was the proposed logging of the  10 West Skeena.  11 Q   May I just ask you to pause there for a moment, Mr.  12 Sterritt?  The Stevens Creek area, could you tell his  13 lordship where that is located?  14 A   Stevens Creek is at what we know as Lax Dii Dax.  It  15 is on the Kispiox River.  When we were on the  16 overflight, we flew right over it.  It was close to  17 Dam Matsii Gogat.  That's Swan Lake.  It was -- when  18 we left Meziaden and flew to Culdoe, it was about  19 half-way along that journey.  I'm talking about the  20 overview.  21 Q   The overview that occurred a week and a half ago; is  22 that right?  23 A   Yes.  Yes.  We left Meziaden Junction.  We flew over  24 to the Kispiox River.  And just as we came to the  25 Kispiox River, we were in the area of Stevens Creek.  26 Q   Lax Dii Dax, is that the name of a territory or --  27 A   It's the name for an area within the territory.  It's  28 sometimes used synonymously with the territory.  29 Stevens Lake is one of the main lakes within that  30 territory.  31 Q   Okay.  I'm just going to ask you to pause there.  Lax  32 Dii Dax, if we could get a spelling for that.  I  33 believe the evidence pertaining to this territory  34 occurred during Mr. Muldoe's testimony, and there's  35 probably -- if your lordship would just give me a  36 moment, I'll find that.  37 Q   Lax Dii Dax, my lord, is 1423.  And you gave the name  38 of Swan Lake, Mr. Sterritt.  Could you give me that  39 again, please?  40 A   Dam Matsii Gogat.  41 MR. MACAULAY:  It's on the map, my lord.  42 MR. RUSH:  43 Q   I'll try to find the spelling for that.  Is it this  44 area located close to Stevens Lake --  45 A   It's at —  46 Q   -- that you're talking about?  47 A   It's at Stevens Lake.  It's -- Stevens Creek flows out 7172  N.J. Sterritt (for plaintiffs)  In chief by Mr. Rush  1 of Stevens Lake.  2 Q   All right.  And Stevens Lake is -- is there a Gitksan  3 name for that that you know?  4 A  Min Dagan.  5 Q   That's 1470, my lord.  So that's the area where the  6 concern was expressed by Pete Muldoe, I think you  7 said, Geel, and Albert Tait, Delgamuukw?  8 A   Yes.  9 MR. RUSH:  All right.  10 THE REGISTRAR:  Stevens Lake is 1470, my lord.  11 THE COURT:  1470.  Thank you.  12 MR. RUSH:  13 Q   Now, Mr. Sterritt, what was the upshot of the points  14 raised by the three hereditary chiefs in respect to  15 the logging at Stevens Creek or Stevens Lake?  16 A   Geel and myself participated in negotiations.  There  17 was a logging equipment -- pardon me.  Road  18 construction equipment was being moved in, and it  19 was -- it was stopped before it got to the area.  20 The —  21 Q   How was it stopped?  22 A  Well, we informed the people who were moving the  23 equipment that they shouldn't go in; that we were  24 going to make efforts to stop this.  And over a period  25 of two days -- well, what I should say is the Ministry  26 of Forests authorized them to go in, and we informed  27 the Ministry of Forests in a meeting, a public meeting  28 in Kispiox with hereditary chiefs and the general  29 public present -- and when I say the general public, I  30 mean nonlndian people were there as well.  They had a  31 big concern as well.  We entered into negotiations,  32 and over a period of two days, I believe, convinced  33 the Ministry Forests that they could not proceed, and  34 they cancelled the logging in that area.  35 Q   When -- and you say that occurred about two years ago,  36 to your recollection?  37 A   Yes.  38 MR. RUSH:  All right.  Now, I —  39 MR. GOLDIE:  That's 1986?  4 0 MR. RUSH:  41 Q   '6?  42 A   I think it was 1986, yes.  43 Q   Okay.  Now, you were about to move on to another issue  44 pertaining to logging in the Gitksan-Wet'suwet'en  45 territories after Stevens Creek.  I think you had  46 mentioned the West Skeena?  47 A   Yes.  There was a proposal to log the territories of 7173  N.J. Sterritt (for plaintiffs)  In chief by Mr. Rush  1 the Gitwangak hereditary chiefs, west of the Skeena  2 River and south of Gitwangak.  And the hereditary  3 chiefs there decided that they weren't going to oppose  4 that; that they could not oppose it because they were  5 not participating in it; that the damage due to the  6 present logging practices is too great, and the  7 proposal was shelved.  Whether it was for that reason  8 or not, I'm not sure, but it was shelved.  It is now  9 being developed again.  10 Q   Where is this area that you're talking about?  11 A   It's Xsi gwin k'aat.  That's Fiddler Creek.  It's  12 along the Skeena.  Fiddler Creek flows east into the  13 Skeena River.  It's near our southern border.  And it  14 is an area along west of the Skeena, along -- in that  15 area.  16 MR. RUSH:  Do you have the Gitksan spelling for that, please?  17 THE SPELLER:  316.  18 MR. RUSH:  19 Q   316?  Thank you.  20 Mr. Sterritt, I'd just ask you to step off the  21 witness stand and go to the map just behind you to  22 Exhibit 5.  Can you just point to where Fiddler Creek  23 is?  24 A   The village of Gitwangak is here and Xsi gwin k'aat,  25 Fiddler Creek, is right here.  Terrace, the  26 municipality of Terrace is down here.  It's about  27 midway between Gitwangak and Terrace.  28 MR. RUSH:  Thank you.  29 THE COURT:  The river flows — Fiddler Creek's on the east side  30 of the Skeena and flows west of Skeena?  31 THE WITNESS:  It's on the west side and it flows east into the  32 Skeena.  33 THE COURT:  Is it your southern external boundary?  34 THE WITNESS:  It's very close to it.  35 THE COURT:  It's north of Legate Creek?  36 THE WITNESS:  Almost.  It's slightly north and opposite Legate  37 Creek.  You go up about an inch from the Legate Creek  38 and you come to Fiddler Creek.  3 9 MR. RUSH:  40 Q   Did you have involvement in other logging proposals or  41 plans in the territory after the West Skeena proposal?  42 A   Yes.  There was logging in the area of Gitwangak that  43 the hereditary chiefs of Gitwangak were opposed to,  44 and they made that known to the logging contractors  45 who were going into that area.  That was in the fall  46 of 1985, I believe.  And the logging contractors were  47 going into that area.  And there were meetings between 7174  N.J. 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  the hereditary chiefs and the logging contractor.  Q   Did this have to do with the Seven Sisters area?  A   It was close to it, yes.  It was directly connected  with the Seven Sisters logging.  Q   And in relation to Seven -- where Seven Sisters -- is  Seven Sisters a mountain or a range of mountains?  A   It's a mountain, massive.  The creek Xsu Wii Lax  Loobit, Boulder Creek, the logging was proposed along  there, and the hereditary chiefs involved were opposed  to it and then talked to the logging contractor.  He  modified his logging plan based on the discussions of  the hereditary chiefs, and they allowed him to proceed  on that basis.  MR. RUSH:  Xsu Wii Lax Loobit, do you have the spelling for  that, please?  THE SPELLER:  X-s-u-space-W-i-i-space-L-a-x-space-L-o-o-b-i-t.  THE COURT:  Thank you.  MR.  RUSH:  Q  A  Q  A  Q  A  Q  A  Q  A  Q  A  Q  A  Now, Mr. Sterritt, in those -- on those occasions  where you had involvement with the hereditary chiefs  in either modifying or opposing the logging, what was  the logging practices that were opposed?  The hereditary chiefs were very concerned about the  damage to the creeks.  The -- well, Stevens Creek was  one example, but logging did not occur there.  In the  area of Xsu wii 'din, Sweetin River, which flows into  the -- flows west into the Kispiox, there has been  damage in that area, and the hereditary chiefs have  seen that damage.  They're concerned about it.  What's the spelling of the English name, Sweetin?  Sweetin.  It's actually one word.  S-w-e-e-t-i-n River?  Yes, it is.  And the Gitksan is Xsu wii 'din?  Yes, it is.  And we flew up that after we left Stevens  Lake when we were on the overflight.  All right.  Go ahead.  They're very concerned about the damage to the habitat  for big game, moose, deer, also to the damage that  results to the furbearers.  But the -- there's  tremendous damage to the big game in the area of  Gitludahl's territory at Twin Lakes.  You've been there?  Yes, I have.  You've made these observations yourself?  Yes.  Another concern is the -- the damage to trails  that are cut in by persons who want access to their 7175  N.J. 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  hunting territory, house territory, the trails, the  cabins and the lakes on the territory.  And a good of  example of that is on Wah Tah K'eght's territory east  of Moricetown.  MR. RUSH:  That's — Wah Tah K'eght is on the plaintiff's list,  of course.  THE SPELLER:  69.  MR. RUSH:  Q   Have you again observed the nature of the damage that  has occurred there?  A   Yes.  I've been there with the members of the family  of Wah Tah K'eght and I've been there with other  persons.  Q   My lord, Wah Tah K'eght is not 69.  It's 68.  A   There is concern about the -- the unemployment amongst  the Gitksan and Wet'suwet'en people.  THE COURT:  I think if you're changing the subject, I think  we'll adjourn now.  Thank you.  Order in court.  Court will adjourn until 2:00  MR. RUSH  THE REGISTRAR  p. m  (PROCEEDINGS ADJOURNED)  I hereby certify the foregoing to be  a true and accurate transcript of the  proceedings transcribed to the best  of my skill and ability.  Kathie Tanaka, Official Reporter  UNITED REPORTING SERVICE LTD. 7176  Proceedings  In chief by Mr. Rush  1  2 THE REGISTRAR: Order in court.  Calling Delgamuukw versus her  3 Majesty The Queen at bar.  4 THE COURT:  Mr. Grant.  5 MR. GRANT:  My Lord, before we proceed I have taken the liberty  6 of providing to my friends, based, on part, Miss  7 Russell's comments about the red book, a map which I  8 would ask be marked as the next exhibit, and this is a  9 map which is similar to maps you have already seen,  10 except that the difference is that it has the actual  11 flight plan of the viewing on the map.  I provided a  12 copy for Your Lordship as well and both of my friends,  13 and I would ask that that document be marked as the  14 next exhibit.  15 MR. GOLDIE:  I don't think so, My Lord.  The whole purpose of  16 the overview is in the context of the case, and not to  17 take evidence.  I think the map should be held by  18 everybody to whom it is given as an aid.  It should  19 not be an exhibit.  20 THE COURT:  Am I correct in believing that we have already  21 marked the red book?  22 MR. GRANT:  We have already marked the red book as an exhibit,  23 and at that point no objection was taken by any party,  24 I don't believe, except Miss Russell was concerned  25 that the red book referred to some parts of the flight  26 plan deviated a little bit from the red book.  The  27 only difference is that this map shows the actual  28 flight plan, and it is an aid for the court, and  29 that's primarily what it is.  Mr. Sterritt has already  30 described some things in relation to the locations of  31 the flight, and I don't think that there is any  32 dispute amongst the parties as to where we went,  33 especially since all of the parties were there,  34 including Your Lordship, and that's why -- since the  35 red book is in, I would submit that it's appropriate  36 to have this marked as an exhibit, and if necessary  37 can be marked as a 'B' exhibit.  38 MR. GOLDIE:  It's obvious the red book doesn't have a document  39 in it which is marked external boundaries of the  40 Gitksan-Wet'suwet'en territories.  We have enough of  41 those maps already, My Lord, without having to deal  42 with another one.  43 THE COURT:  All right.  I will think about that one, Mr. Grant.  44 I want to have a look at it anyway, for other reasons,  45 and I'll let you have my decision in that in due  46 course.  47 MR. GRANT:  There is a copy for Your Lordship as an aide-memoire 7177  Proceedings  In chief by Mr. Rush  1 in any event.  2 THE COURT:  Thank you.  3 MR. GOLDIE:  Before my friend, Mr. Rush, resumes his examination  4 in chief, yesterday Your Lordship may recall reference  5 was made to a letter dated July the 11th, 1985 from  6 the Wet'suwet'en -- Gitksan-Wet'suwet'en Tribal  7 Council to the Ministry of the Environment.  I just  8 want to get the tab number.  9 THE COURT:  26.  10 MR. GOLDIE:  Tab 25, I believe it is, Exhibit 633.  11 THE COURT:  Yes, that's 633.  12 MR. GOLDIE:  There are actually two of them.  I'm sorry, it's  13 the first one.  Does Your Lordship have it?  14 THE COURT:  I have 633, which is —  15 MR. GOLDIE:  And it made reference to -- on page 2 in paragraph  16 2.  17 THE COURT:  Yes.  18 MR. GOLDIE:  To maps which encompass the claims of all the  19 Indian trappers.  2 0 THE COURT:  Yes.  21 MR. GOLDIE:  And attached to it was one map.  Now, I am advised,  22 My Lord, that this is a photocopy of the document as  23 received, the Fish and Wildlife branch of the Ministry  24 of the Environment in Smithers on July 16th, and in  25 the -- in the upper left-hand corner Your Lordship  26 will see that there is attached a note which is  27 contemporaneous in time, that there are no enclosures  28 attached.  29 THE COURT:  So from your position there are no other documents  30 that should be included with this letter?  31 MR. GOLDIE:  And indeed as sent to the addressee it didn't  32 contain the map which is attached to Exhibit 633.  33 THE COURT:  Even the one that is attached here now?  34 MR. GOLDIE  Even the one that is attached now.  35 THE COURT:  Are you able to assist in this, Mr. Rush?  36 MR. RUSH:  My Lord, I cannot.  As I said, that was — that —  37 those three pages were the three pages that --  38 THE COURT:  Came from your files?  39 MR. RUSH:  Were in the files of the plaintiff, and those were  40 listed, and that's what I had.  And as I indicated,  41 that's all that was available, so far as I know, and  42 in the plaintiffs' files.  And my friend was a little  43 faster than me.  I have been trying to check back  44 myself on this, and I haven't been able to be any more  45 illuminating than I was yesterday.  46 THE COURT:  Would it be acceptable, Mr. Rush, if I mark as 633B,  47 Mr. Goldie's copy, with this notation "no enclosure 717?  N.J. Sterritt (for Plfs.)  In chief by Mr. Rush  1 was enclosed" as a further clue in the resolution of  2 this mystery?  If you have something to add after  3 that, we'll add in as well.  So this will be 633B.  4 We'll make the other one, which was 633, we'll make it  5 633A, and I'll put them in the same tab together, and  6 if there is anything further to be added to which  7 explains the missing fact, then we'll hear from it in  8 due course.  I was given two copies.  You give them  9 back, Mr. Goldie.  10 MR. RUSH:  My Lord.  11 THE COURT:  I just put a copy in my book, and Madam Registrar  12 will keep the other one as an exhibit.  13 MR. RUSH:  The one that was submitted yesterday, that will  14 become 633A?  15 THE COURT:  Yes.  16  17 (EXHIBIT 633B - TAB 25 - LETTER - JULY 11,  18 1985 FROM N. STERRITT TO D. STEVENTON WITH  19 HANDWRITTEN NOTATION - 'NO ENCLOSURE' -  2 0 DEFENDANT)  21  22 MR. RUSH:  Thank you.  Now, I'm handing up volume 2 of the  23 document book for reference to Mr. Sterritt.  It's His  24 Lordship's copy and a bench copy.  25 MR. GOLDIE:  I take it, My Lord, that in volume 1 that tabs 30  26 to 51 are extracted, is that correct?  Those are the  27 documents that your Lordship's ruled are unnecessary?  28 THE COURT:  I never looked at them to see if that's so.  Will  29 you be coming back to those documents, Mr. Rush?  30 MR. RUSH:  Yes, My Lord.  31 THE COURT:  They are not at the moment anyway.  32 MR. GOLDIE:  No, they are not.  33 MR. RUSH:  34 Q   Now, I wish to refer Mr. Sterritt to the second of the  35 2 volumes.  Let me just direct his attention to that  36 now.  Mr. Sterritt, I am directing your attention to  37 Tab 60 of volume 2 of the black document book.  I want  38 to ask you some questions about that, if I may.  And,  39 My Lord, I am just interjecting in the general train  40 of the examination here.  There were two matters that  41 arose from this morning that I want to raise with Mr.  42 Sterritt now and deal with them.  4 3 THE COURT:  Yes.  4 4 MR. RUSH:  45 Q   This morning you made reference to the Fulton River,  46 and some observations you made in the Fulton River  47 area in 1986, and I want to ask you, first, if the 7179  N.J. Sterritt (for Plfs.)  In chief by Mr. Rush  1 observations which you made at the Fulton River are  2 depicted in the photographs which appear at Tab 60?  3 A   Yes, they are.  4 Q   And I would like to refer you to Tab 61.  5 THE COURT:  This is 1986, is it not?  6 MR. RUSH:  Yes.  7 THE COURT:  All right.  8 MR. RUSH:  9 Q   And there are photographs, two photographs at Tab 61.  10 Do those two photographs relate to the observations  11 that you made at the Fulton River in 1986?  12 A   Yes, they do.  13 Q   All right.  Now, Mr. Sterritt, I would like to ask you  14 about the Fulton River.  Just whereabouts is the  15 Fulton River?  16 A   The Fulton River is a tributary of Babine Lake.  It  17 flows east into Babine Lake.  The salmon run that we  18 are referring to, that I referred to this morning, is  19 a run that comes up the Skeena, past the Gitksan  20 villages, and some portions of that run go off and go  21 up the Bulkley River and past the Wet'suwet'en  22 villages, but the majority of the salmon population  23 that come up the Skeena go to the Fulton system, the  24 Fulton hatchery.  25 Q   Now, were these photographs taken at the Fulton  26 hatchery or close to it?  27 A   Yes, they were taken just downstream.  Some of the  28 photographs in Tab 60 -- the photographs in Tab 60  29 were taken from the walkway above the barricades, the  30 gates that prevent the salmon from going into the  31 Fulton River hatchery, the spawning channels, and they  32 open the gates when they are ready to count, and allow  33 a certain number of salmon to go through to the  34 spawning channels.  35 Q   All right.  What does the top photograph at Tab 60  36 show?  37 A   That's a photograph of the salmon milling around below  38 the barricades, the gates that prevent the salmon from  39 going through, and that is just a portion of the  40 river.  The river stretch is from that point down to  41 the lake about half a mile, and there were similar --  42 the water right to the lake had that number of -- had  43 that density of fish in it.  44 Q   And the second of the two photographs there?  45 A   That's a picture of the salmon right below.  There is  46 a bit of a waterfall where the gates are, and the  47 salmon right below it are milling around, and that's 7180  N.J. Sterritt (for Plfs.)  In chief by Mr. Rush  1  2  Q  3  4  A  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  THE COURT  29  MR. RUSH:  30  Q  31  32  A  33  34  Q  35  A  36  Q  37  38  A  39  Q  40  41  42  A  43  Q  44  A  45  46  MR. RUSH:  47  THE COURT  some of the salmon at that point.  All right.  Now, I want to direct you to Tab 61 and  ask if you can recognize the first photograph,  Yes, on the top Mike Morrell, the biologist who had  been in our employ from 1979, is sampling the dead  fish carcasses that lay on the edge of the bank, and  this is farther down the river.  We have driven around  and then walked out to where the Fulton River goes  into the lake, and so we are both along the stream  right where it goes into the lake and also along the  lake.  But in this case what Mike Morrell has done in  response to a claim by the Department of Fisheries and  Oceans that the -- it doesn't matter that the fish are  left there, they spawn anyways in the lake, and there  is no real harm, we did a -- several samples of the  numbers of fish, you see, in the lower picture.  He  has cut it open to see how much of the eggs are left  in the dead fish, and in that fish that you see there,  there is about one-third of the eggs have been  spawned, and so there is two-thirds of the eggs are  left.  In the lower picture he has opened the bellies  of each, and you can see several which have a hundred  percent of the eggs, and his estimate of a few samples  here and there around the edge of the lake and along  the stream is that about three to four out of ten of  the fish have a hundred percent -- of the dead fish  have a hundred percent of the eggs still intact.  :  I note that Mr. Macaulay --  Mr. Sterritt, in terms of your observations, where  were these fish located that you observed here?  These fish are on the edge of the lake right where  Fulton River goes into Babine Lake.  Okay.  Were these dead fish?  Yes.  Were there other fish like this along the river's edge  there?  Yes.  Now, just to take you back to Tab 60 for a moment, the  top photograph, does that disclose fish that are alive  or not?  They are alive.  They are swimming about, yes.  And what was the time of year that you witnessed this?  This was in July, August, when the major salmon run is  getting to the Fulton channel.  It's about that time.  All right.  Can this be marked as an exhibit?  :  Yes. 7181  N.J. Sterritt (for Plfs.)  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. GOLDIE:  I assume Mr. Sterritt took these photographs.  THE COURT:  Or was there when they were taken.  I thought he  said he was there when they were taken.  THE WITNESS:  I took these photographs.  MR. GOLDIE:  Thank you.  THE COURT:  All right.  Tab 60 will be —  THE REGISTRAR:  Exhibit 638.  THE COURT: 638.  And 61 will be 639.  (EXHIBIT NO. 638 - TAB 60  SALMON SPAWN - PLAINTIFF)  C PHOTOS  THE  THE  THE COURT  THE  THE  MR.  (EXHIBIT 639 - TAB 61-2. C PHOTOS - SALMON  SPAWN - PLAINTIFFS)  COURT:  Mr. Sterritt, I have never had to think about this,  but I take it the fish go up the Skeena and into the  Babine, up the Babine to Babine Lake and then down the  lake to Fulton?  WITNESS:   Yes, they do, right where we landed at Kisagas,  the Babine River flows into the Skeena about three or  four miles below, that run then runs up to Babine  Lake, just as you have described.  I can show you on  the map.  I think I have got it figured out.  I just -- I  remember driving by Fulton, and I was thinking to  myself that it was unlikely that the fish would want  to spawn at almost the far end of Babine Lake, but  that's not the case.  That's what they do.  WITNESS:  There is another river, Pinkut, which is another  set of channels, and they spawn in there as well, and  there is some spawning on -- along the lake to a  certain degree.  Pinkut is where, at the north end of the lake or  also at the south end?  WITNESS:   Farther south than Fulton.  COURT:  Further south than Fulton.  All right.  RUSH:  Q   Who was with you on that occasion, besides Mr.  Morrell?  A   Don Ryan, the executive director of the Tribal  Council.  My son, Gordon Sterritt.  Michell Good, a  girl who worked at the Gitwangak Band.  I think I  mentioned Mike Morrell, or you did a minute ago.  Mike  McDonald, who did some videos of this trip.  One of  the Departments of Fisheries and Oceans technicians  who worked at the facility accompanied us as we walked  THE  THE COURT 7182  N.J. Sterritt (for Plfs.)  In chief by Mr. Rush  1 around, and he explained the numbers of fish and what  2 was happening and toured us around the hatchery.  3 Victor Jim.  That's what I remember at this time  4 point.  Alfred Joseph.  5 Q   Gisdaywa?  6 A   Gisdaywa.  I think he was on the trip too.  7 Q   All right.  Thank you.  Now, I would like to draw your  8 attention to one other matter before I continue with  9 the direct examination, to a document at Tab 54 of the  10 document book.  This morning, in reference to your  11 evidence regarding logging, you testified about a  12 submission that was made to the Kispiox Timber Supply  13 Area Public Meeting in 1981, and I wonder if you can  14 identify this document at Tab 54?  15 A   Yes.  This is the document that Don Ryan, the  16 executive director, passed onto me later in the year.  17 Q   Is this the submission that was presented at that  18 time?  19 A   Yes, it is.  20 Q   And were representatives of the Ministry of Forests  21 present?  22 A   Yes.  23 Q   In the last page at page 5 it says:  24  25 "In conclusion I would like to thank the  26 forest service for the opportunity given to  27 the Gitksan-Carrier Tribal Council to examine  28 your plans for this area.  We look forward to  29 receiving written answers to our questions  30 soon, so we can adequately respond to your  31 invitation to discuss your proposal further."  32  33 Did you receive any answers, any written answers to  34 the questions posed in the brief?  35 A   None that I am aware of.  36 MR. RUSH:   That be an exhibit, My Lord.  It's entitled the  37 Gitksan-Carrier Tribal Council presentation to the  38 Kispiox Timber Supply Area Public Meeting, July 23rd,  39 1981, New Hazelton, B.C.  4 0    THE COURT:  64 0.  41    THE REGISTRAR: 640.  42  43 (EXHIBIT NO. 640 - TAB 54 - PROPOSAL  44 BRIEFING - TRIBAL COUNCIL RE TIMBER - JULY 23,  45 1981)  46  47    MR. GOLDIE:  I am raising no objection to it, My Lord, on the 7183  N.J. Sterritt (for Plfs.)  In chief by Mr. Rush  1 same basis that I said this morning, that it is  2 indicative of this witness's duties as president of  3 the Tribal Council.  4 MR. RUSH:  5 Q   Mr. Sterritt, you still have that document in front of  6 you, Exhibit 640.  On page 2, if you refer to page 2  7 where the full paragraph just prior to the heading --  8 the questions at the bottom of the page, "on this  9 basis".  Do you see it there?  10 A   Yes.  11 Q   It makes reference to the Kispiox TSA report.  Was  12 such a report presented or made public either at the  13 meeting or prior to the meeting?  14 A   It was made available prior to the meeting and was  15 dealt with at this meeting.  16 Q   All right.  And the report also makes mention in the  17 preceding paragraph.  18  19 "There are three main aspects of forest  20 management that concern Indian people today.  21 They are:"  22  23 And it sets out the three.  First:  24  25 "The non-industrial use of the forests, that  26 is the preservation of habitat for game,  27 fur-bearers and fish.  28 2)  The attempts by Indian communities to  29 regain some of their timber cutting rights  30 under the B.C. Forest Act.  I am thinking of  31 the Tree Farm Licence application by Kitwanga  32 and the Forest Licence application by  33 Moricetown.  34 3)  The employment security of Indian workers  35 in the sawmills at Hazelton, Kitwanga and, to  36 a lesser extent, Smithers."  37  38 Were those aspects of forest management that concern  39 Gitksan and Wet'suwet'en people?  40 MR. GOLDIE:  That's a leading question, My Lord.  He's not the  41 author of the document.  He suggested the answer to  42 him.  43 THE COURT:  It was leading, Mr. Rush.  44 MR. RUSH:  Well, the document is a leading document by its very  45 presence, My Lord.  4 6    THE COURT:  That's why we allow documents to speak for  47 themselves, I think. 7184  N.J. Sterritt (for Plfs.)  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.  THE  MR.  RUSH:  COURT  RUSH:  THE COURT  MR. RUSH:  Q  Sometimes they speak more loudly than others.  Yes.  My concern, My Lord, is that I don't want it to be  taken from my friend's assertion that the document is  only going to Mr. Sterritt's role as, at this time, I  suppose, president of --  The question was leading, and perhaps there is  another way of going about it.  Mr. Sterritt, were you knowledgeable at this time  about concerns of the Gitksan and Wet'suwet'en people  regarding the forestry and logging and forest  management?  A   Yes.  I had been quite conscious of the problem of the  sawmills in the area, that there was no security of  work for the -- for any of the employees, the Gitksan  and Wet'suwet'en persons who were working in those  mills, and that continues to be a problem.  The issues  that are outlined here were also points that are  constantly made.  MR. GOLDIE:  Excuse me, I am objecting to that, My Lord.  The  witness has had this presented to him.  He's not the  author.  He's identified where it was handed in.  I  have stated my position with respect to it, but to  question him on it is just another way of leading him.  THE COURT:  I think that's right, Mr. Rush.  I think what you  are doing, which would be perfectly proper in  cross-examination --  Pardon me?  The examination you are engaging in now would be  perfectly proper in cross-examination, but it seems to  me that it does lead the witness.  You can ask if he  agrees with that statement.  Yes.  All right then.  On page 2, Mr. Sterritt, in terms of the three points  that I read to you in that paragraph, paragraph -- the  second full paragraph on page 2, and there are 3  points there, do you agree with those points?  Yes, I do.  THE COURT:  Was the Kispiox timber supply area large enough to  include Moricetown?  THE WITNESS: I don't know the exact definition of the Kispiox  term of supply area.  THE COURT:  Would it go so far as Gitwangak?  THE WITNESS: Oh, yes, yes, and well north of Hazelton up to the  head of -- possibly right to the Babine River where we  flew down.  MR.  THE  MR.  RUSH:  COURT  RUSH:  Q  A  COURT 7185  N.J. Sterritt (for Plfs.)  In chief by Mr. Rush  1 THE COURT:  All right.  2 MR. RUSH:  3 Q   Now, this morning, Mr. Sterritt, we broke off this  4 morning's examination with your describing to His  5 Lordship what log practices it was that were expressed  6 to be the -- either the opposition from your  7 experience or the complaints about logging practices  8 of the hereditary chiefs, and you described damage to  9 creeks and spawning extremes, you described the  10 effects of logging on moose habitat areas, and I think  11 you also made reference to the impact on trails.  Were  12 there any other areas of complaints or opposition from  13 your experience of the hereditary chiefs in the area?  14 MR. GOLDIE:  Well, he referred to fur-bearers.  15 THE WITNESS:  The hereditary chiefs instructed me and several  16 other persons to go to a meeting in the Kispiox valley  17 community hall to speak against the Mitten Road  18 extension, and the reason that the chiefs' opposed  19 that was because it could lead to raw log exports and  20 an increased cutting of the timber on the Kispiox  21 River up in the Kispiox territories.  So they were  22 very concerned about the raw log export, that it meant  23 that logs were simply -- trees were simply cut down  24 and taken out of the area, and that the possibility of  25 other jobs in the logging industry through sawmills  26 and other ways was being eliminated, and the other  27 problem --  28 Q   Just before you go on to that, who was that that  29 instructed you to attend at this meeting and to voice  30 your opposition?  31 A   Gitludahl, Pete Muldoe.  He instructed me to go to  32 that meeting.  Geel, Walter Harris.  And Spookw, Steve  33 Robinson.  There were other hereditary chiefs there  34 who spoke up as well at the meeting as well.  Wii  35 Muglusxw, Art Wilson.  36 Q   Do you recall the date of this?  37 A   No, I don't.  38 Q   All right.  You were about to express another point?  39 A   The hereditary chiefs and myself had seen the waste of  40 both softwood and hardwood as a result of the logging  41 practices.  I have gone out to where the logging  42 occurs, and out of the trees that have been cut, in my  43 estimate there are -- let's say on a given day, if  44 there was seven or eight loads, truck loads of logs  45 cut, piles that would take three to four loads were  46 being burnt on the edge of the landing where the logs  47 were being hauled out, so that for every, let's say, 7186  N.J. Sterritt (for Plfs.)  In chief by Mr. Rush  1 seven or eight loads that were being cut, three or  2 four of those loads were being burnt.  And this waste,  3 the fur-bearers -- the hereditary chiefs were  4 concerned about the fur-bearers and about the habitat,  5 and trees were being cut down simply to burn right on  6 the edge of the landing, when they could be left up to  7 protect the fur-bearers and the other animals and the  8 soil, and so that is a concern.  And that was  9 expressed.  10 Q   All right.  Is there anything else?  11 A   Not that I recall right now.  12 Q   Right.  13 A   The place where I observed that was on Gwoimt's ground  14 at Tsuwinhl Geets, which is up the Skeena River on the  15 east side near on the Shewililba Creek.  16 Q   Shewililba?  17 A   Yes.  18 Q   And what's the name of the place you gave us in  19 Gitksan?  20 A   That's Gwoimt's territory.  21 Q   When did you make that observation?  22 A   Last spring.  23 MR. RUSH:   Is there a number for that?  24 THE TRANSLATOR:   1617.  25 MR. RUSH:  Thank you.  26 Q   Mr. Sterritt, I am going to turn your attention now to  27 another matter about which you have given some  28 evidence yesterday, and that is regarding the  29 constitutional issue that was undertaken by the  30 hereditary chiefs and yourself in late 1981.  Were the  31 hereditary chiefs involved in the process to amend the  32 constitution of Canada?  33 A   The hereditary chiefs first of all told the Tribal  34 Council that something had to be done about the  35 constitution, that it was an important -- it could be  36 an important initiative.  After I had been president  37 for about a year -- well, first of all I already  38 described that I was directedly involved immediately,  39 but then within the year I attended a meeting in  40 Toronto.  Hereditary chief, Spookw, was with me, Steve  41 Robinson.  We returned to Hazelton and described what  42 was happening, and we met with hereditary chiefs and  43 members of the Tribal Council, and in that process the  44 hereditary chiefs decided that we should get involved  45 to try to ensure that a proper definition of title and  46 rights would be incorporated into the Canadian  47 constitution, that we should be involved.  If we could 7187  N.J. Sterritt (for Plfs.)  In chief by Mr. Rush  1 be successful in doing that, we should make that  2 initiative, that matters concerning the  3 Gitksan-Wet'suwet'en should be brought to that forum,  4 and they asked me to do that as president.  5 Q   All right.  And what did you do as a result of that  6 direction?  7 A   The first minister's conference was going to be held  8 in 1983, in April of 1983.  As a result of the meeting  9 that we had attended in Toronto in the fall of '82, I  10 became directly involved in Ottawa with the officials  11 meetings.  There were three levels of meetings,  12 ministerial -- first ministers, ministerial and  13 officials, and in the officials meetings were making  14 recommendations.  I became directly involved in both  15 the logistics and the framing of the issues that were  16 to be brought in front of the Attorney General's of  17 Canada.  18 Q   And was that in respect of the first ministers'  19 conference in 1983?  2 0 A   Yes, it was.  21 Q   All right.  22 A   The information at the Attorney General's level was  23 going to be brought forward to the first ministers'  24 level at the FMC in April.  25 Q   Now, did you report back to meetings in the territory?  26 A   Yes, I did.  27 Q   And were there hereditary chiefs who were either  28 advising you in Hazelton or advising you during the  29 course of the first ministers' conferences?  30 A   Both in Hazelton I reported back at meetings there and  31 received direction.  They were -- there were people in  32 the community working on some of the issues that I  33 should try to advance.  34 Q   Who was that?  35 A   Peter Williams was -- is considered a honourary  36 advisor to the Tribal Council, Dr. Peter Williams.  37 Hereditary chiefs in the community who were -- who  38 worked both with Peter and with the Tribal Council to  39 frame the issues, and members of the Tribal Council  40 who were drafting the positions that were coming  41 forward in each of the communties, and I don't recall  42 the names of the people in each of the communties at  43 this time, but there were meetings held where the  44 issues on the table were brought there and direction  45 was given back again.  46 Q   Was Perry Sampson one such person?  47 A   Yes. 7188  N.J. Sterritt (for Plfs.)  In chief by Mr. Rush  1  Q  2  A  3  Q  4  A  5  Q  6  A  7  Q  8  9  10  11  12  A  13  14  15  16  17  18  19  Q  20  21  A  22  23  24  25  26  27  28  29  30  31  Q  32  33  A  34  35  36  Q  37  A  38  39  Q  40    ]  MR. GOLD  41  42    ]  MR. RUSH  43  Q  44  45  46  47  A  Was Bill Blackwater another person?  Yes.  And Alfred Joseph?  Yes.  Are they hereditary chiefs?  Yes, they are.  Now, Mr. Sterritt, during the time that you were  involved with the first ministers' conference in 1983,  did you have any particular involvement in gathering  of information with regard to the territory and  research work on the land claim?  I did.  During the winter it was very intensive.  While I was on the constitution I did very little.  When I did gather information, it was on a part-time  basis.  If I attended a feast I might gather some  information.  It was an information gathering time.  I  did go on the field trips in the spring of '83, and  those were also information gathering trips.  Now, how long were you involved on behalf of the  hereditary chiefs in the first ministers' conferences?  I continued -- well, when we finished that first  ministers' conference we were quite concerned because  we didn't gain as much ground as we had hoped.  We met  with the hereditary chiefs, as a lot of them watched  it on TV, and they brought forward their concerns  about the process, but they thought that we should try  one more time, the first ministers' conference in  1984.  So I participated in very much the same way as  I had the previous year in the first ministers'  conference in 1984.  All right.  And was that the last involvement that you  had with the first ministers' conference?  At the level of intensity, yes.  I attended the 1985  first ministers' conference, but I did not participate  in the same way that I had before.  What was the reason for the change?  Because the hereditary chiefs felt that we were  wasting our time.  Okay.  And did you agree with that?  3:  Well, I object to that, My Lord.  His evidence has  been that he takes instructions.  Mr. Sterritt, were there efforts by the Gitksan and  Wet'suwet'en hereditary chiefs in relation to other  court cases that impacted on their ownership and  jurisdiction?  Yes, there were.  The hereditary chiefs gave me 7189  N.J. Sterritt (for Plfs.)  In chief by Mr. Rush  1 direction to be involved in the -- on an intervenor  2 basis on the Guerin case.  3 Q   Who intervened there?  4 A   The National Union Brotherhood, the Assembly of First  5 Nations intervened.  We were one of several groups who  6 put together the argument, assisted in putting  7 together the argument for the National Union  8 Brotherhood.  9 Q   When you say "we", who do you mean?  10 A   The Gitksan and Wet'suwet'en people.  11 Q   All right.  Why was it felt necessary to participate  12 in that?  13 A   Because the hereditary chiefs were concerned that it  14 was dealing with aboriginal title, aboriginal rights,  15 and that they wanted to protect their interest.  They  16 wanted to attempt to achieve a definition, achieve  17 successes in court that could advance the aboriginal  18 title and rights of the Gitksan and Wet'suwet'en  19 people.  20 Q   Were you similarly involved in other such litigation?  21 A   Yes, I was.  22 Q   I don't mean you personally, but I mean were you --  23 was the Tribal Council or hereditary chiefs involved  24 in such litigation?  25 A   Yes.  The Meares Island case we were -- the hereditary  26 chiefs sought intervenor status in that, and --  27 MR. GOLDIE:  Surely you are going to correct that.  2 8    MR. RUSH:  29 Q   Mr. Goldie says that I should be correcting the  30 comment that you just made.  Would you just -- what  31 body was the intervening body that participated in the  32 intervention?  33 A   The Tribal Council.  34 Q   And on whose behalf?  35 A   On behalf of the hereditary chiefs.  36 Q   And with what other tribal organization, if any, were  37 the -- did the intervention occur?  With whom did they  38 participate?  39 A   The Carrier -- as I recall, the Carrier-Sekani Tribal  40 Council, Tahltan Band, I believe was also involved,  41 and possibly the union of B.C. Indian chiefs.  42 Q   And why was it felt necessary, Mr. Sterritt, so far as  43 you were aware, to participate as part of an  44 intervention group in this case?  45 A  Meares Island people were concerned with aboriginal  46 rights to trees, and the hereditary chiefs were  47 concerned about aboriginal rights to trees as well as 7190  N.J. Sterritt (for Plfs.)  In chief by Mr. Rush  1 aboriginal title and rights to other resources, and  2 felt for a similar reason that we should participate  3 in that, and in that case, and do what we could to  4 advance successful decision, and in so doing advance  5 the aboriginal title rights of the Gitksan and  6 Wet'suwet'en hereditary chiefs.  7 Q   All right.  And was there an intervention that the  8 Tribal Council or hereditary chiefs participated in in  9 respect of the case of Regina versus Sparrow?  10 A   Yes.  11 Q   What was the nature of that?  12 A   This case concerned itself with the aboriginal rights  13 to fish, and in a similar way we felt that we should  14 participate in that case.  15 Q   When you say "we", who do you refer to?  16 A   The Tribal Council on behalf of the hereditary chiefs.  17 Q   All right.  Now, Mr. Sterritt, I wanted to turn your  18 mind to another question, and that is the issue of  19 what has been termed Indian self government.  Were you  20 involved in making a presentation to a federal  21 government sub-committee parliament on the issue of  22 Indian self government?  2 3 A   Yes, I was.  24 Q   And on whose behalf were you -- did you participate in  25 respect of that?  26 A   On behalf of the hereditary chiefs, Delgamuukw --  27 pardon me, the current Delgamuukw, Ken Muldoe, and I  28 made a presentation in Prince Rupert.  29 Q   All right.  Do you recall when that was?  30 A   1982.  31 Q   All right.  32 A   There is many dates.  I am having trouble exactly  33 figuring out which one, but the Penner --  34 Q   I am going to ask you to refer to a document which has  35 been marked in part in these proceedings as Exhibit  36 579.  I am going to show you the entire document,  37 which is the "indian self government of Canada report  38 of a special committee.  This document is found at Tab  39 57 of the document book.  Mr. Sterritt, do you  40 recognize this document, by the way?  41 A   Yes, I do.  42 Q   You received a copy of this, did you?  43 A   Yes.  44 Q   All right.  The orders of reference are dated December  45 22nd, 1982, and there is a list of places and  46 participants, and the back of the report on page 153  47 it indicates that at Prince Rupert on February 16th 7191  N.J. Sterritt (for Plfs.)  In chief by Mr. Rush  1 and 17th, 1983 a number of Tribal Councils made  2 presentations to this committee, and on page 154 it  3 indicates that the Gitksan-Carrier Tribal Council, Mr.  4 Neil Sterritt, president, Mr. Ken Muld, is that  5 Muldoe?  6 A   It should be Ken Muldoe.  7 Q   Treasurer made a submission.  Does that assist you in  8 recalling the date?  9 A   Yes, that's the time.  10 Q   All right.  And what submission was made to the  11 committee at that time by yourself and Mr. Muldoe?  12 A   It was a submission on the aboriginal title and rights  13 of the Gitksan and Wet'suwet'en hereditary chiefs.  I  14 dealt with historical matters, historical development,  15 described the feast system and the house system, the  16 territories, the ownership.  We then brought the  17 presentation forward into the early 1900's and on into  18 the present, and described many of the forces that  19 were playing on the Gitksan and Wet'suwet'en people,  20 and how Indian self government, based on the  21 traditional system, could take place in the future,  22 and how economic developments, particularly within the  23 fishery, the Indian fishery inland, could benefit the  24 Gitksan and Wet'suwet'en people in both in an economic  25 and social way.  And then we talked about Indian self  2 6 government as we saw it.  27 MR. RUSH:   All right.  Now, My Lord, I know there was a  28 representation made, I think it was by Mr. Grant at  29 the time -- and an extract from this report was  30 submitted as Exhibit 579 -- to have the whole of the  31 report submitted.  I believe two pages of the report  32 were submitted.  I am tendering the balance of the  33 report as the next exhibit, and I'm happy that it be  34 marked as Exhibit 579A or B, as the case may be.  35 THE COURT:  Any objection?  36 MR. GOLDIE:  It's a public document.  It's admissible without  37 any further ado.  38 THE COURT:  579A.  39  40 (EXHIBIT NO. 579A - TAB 57 - REPORT - "INDIAN  41 SELF GOVERNMENT" - 1982 - PLAINTIFF)  42  43 MR. GOLDIE:  I don't know what the relevance is, but it's a  44 public document and it's admissible.  45 MR. RUSH:  It's at Tab 57.  46 THE REGISTRAR:  It seems to go back to 579 for one page.  47 MR. RUSH:  That's right. 7192  N.J. Sterritt (for Plfs.)  In chief by Mr. Rush  1 THE REGISTRAR: Tab 57.  2 MR. RUSH:  3 Q   Now, Mr. Sterritt, just before I leave the matter of  4 investigations by government bodies, was there a  5 submission made by the hereditary chiefs or the Tribal  6 Council to the Pearce Commission on the Pacific  7 Fisheries?  8 A   Yes, there was, and that was in 1981.  9 Q   All right.  And who made the submission?  10 A   Galisk'alan, Gary Patsy.  Dinii  11 Q   Dinii.  D-i-n-i-i.  12 A  Alvin Weget.  13 Q   Yes.  14 A  And Gitludahl, Pete Muldoe.  15 Q   Yes.  16 A   That was done in Kispiox.  17 Q   What did you understand the -- what were the terms of  18 reference of this --  19 A  Well —  20 Q   -- commission?  21 A   To review the fishery on the west coast, and the  22 presentation was made -- Dr. Pearce went around to  23 many communties and many different participants in the  24 fishery on the west coast, and also to aboriginal  25 communties, and he came to Kispiox and a presentation  26 was done there.  27 Q   All right.  Just show the witness the document at Tab  28 52.  This is Tab 52 of volume 2.  Showing you a  29 document entitled Gitksan-Carrier Tribal Council to  30 the Pearce Commission on the specific Fisheries  31 policy.  Do you recognize this document?  32 A   Yes, I assisted in the early development of the  33 document.  34 Q   What do you mean by that?  35 A  When the arrangements were being made for Dr. Pearce  36 to come to our territory, I helped to do that, and  37 then I helped also as the -- as this presentation was  38 put forward there were meetings with hereditary  39 chiefs, a committee was put together and I assisted in  40 that -- in the early part of that.  41 Q   All right.  And this submission was made to Dr. Pearce  42 at Kispiox?  4 3 A   Yes, it was.  44 Q   All right.  I would like that to be marked as an  45 exhibit, My Lord.  46 MR. GOLDIE:  I object to that, and substantially the grounds  47 that Mr. Macaulay advanced.  This is apparently a 7193  Submissions by Counsel  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  THE COURT  MR. RUSH:  federal commission.  The witness is not the author of  it.  So far as I am aware there is nothing with  respect to the -- to that commission which has any  relevance to the issues before Your Lordship.  The  order-in-council makes reference to the fishing  industry of the Pacific Coast of Canada and the  problems facing the industry.  Well, I think the reach of the commission went  beyond high tide.  It seems to me that there might be  some relevance, not in proof of the truth of anything  stated, but as evidence to the fact that this is what  we presented to that commission.  I see that it's a --  the area that leaves me in some doubt.  Are you  advancing it for any more than that, Mr. Rush, than to  say this is what we -- this is what was put forward by  the authors of this report?  My Lord, I think the facts in this document have been  separately or will be separately proved, and the  document, I think, speaks in a number of ways.  It  partly establishes a time, date in answer to the  suggestion of the provincial defendants' defence on  acquiesence, and it is part of, again, a body of  evidence that we feel necessary to present to the  Court to demonstrate the steps taken by the hereditary  chiefs in respect of asserting their ownership and  jurisdiction.  Looking at page 44:  "The fishery resource within our territory  still belongs to the Gitksan and Carrier  people.  Ownership of the resource has never  been extinguished a treaty, contract or other  agreement."  Now, clearly the document, if admitted, can't prove  that fact.  I say, My Lord its been proven independently in our  submission.  But I quite agree, I don't advance it for  the proof of that fact.  What I would do, however, is  another reason for demonstrating -- for advancing this  document is to show the connection between the  document and the fact of the presentation of the  Gitksan-Carrier declaration and the map outlining the  territories of the Gitksan and Carrier Indians on  November the 7th.  THE COURT: I am going to admit it merely for the purpose of  proving that this is a position advanced by the  THE COURT  MR. RUSH: 7194  Submissions by Counsel  In chief by Mr. Rush  1 authors of this report to the Pearce commission, but  2 not as proof of the truth of the facts stated in it.  3 THE REGISTRAR:  It will be Exhibit 641.  4  5 (EXHIBIT NO. 641 - GITKSAN-CARRIER TRIBAL  6 COUNCIL TO PEARCE COMMISSION - TAB 52 OF  7 VOLUME 2)  8 THE COURT: We'll take the afternoon adjournment.  9  10  11 (PROCEEDINGS ADJOUNED)  12  13 I HEREBY CERTIFY THE FOREGOING TO  14 BE A TRUE AND ACCURATE TRANSCRIPT  15 OF THE PROCEEDINGS HEREIN TO THE  16 BEST OF MY SKILL AND ABILITY.  17  18    19 LORI OXLEY  2 0 OFFICIAL REPORTER  21 UNITED REPORTING SERVICE LTD.  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 7195  N.J. 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  THE  THE  MR.  (PROCEEDINGS RESUMED PURSUANT TO A SHORT ADJOURNMENT)  REGISTRAR:  Order in court.  COURT  RUSH:  Q  Mr. Rush.  MR.  MR.  THE  MR.  Thank you.  Mr. Sterritt, I've been referring you to the  document at Tab 52.  I wonder if you would just go  back to that for a moment.  That's in Volume 2 of the  document book.  You indicated in your evidence that it  was Gary Patsy, Alvin Weget and Pete Muldoe who made  the submission to the Pearce Commission.  On whose  behalf was this submission made?  A   On behalf of the hereditary chiefs.  Q   Was this -- was there a public gathering at which this  submission was made?  A   Yes.  There was a large gathering in Kispiox.  Q   Okay.  And you indicated that you had a role with  regard to the preparation of this.  Were you among the  authors of this report?  A   Yes, I was .  Q   Now, let me ask you if you'll please direct your  attention to Tab 53.  Do you recognize this document?  A   Yes, I do.  Q   It's entitled "Response of the Gitksan-Carrier Tribal  Council to the Final Report of the Commission on  Pacific Fisheries Policy, November 26th, 1982".  Were  you involved at all in the drafting or authoring of  this report?  A   Yes.  I assisted and -- and there was a number of  people who prepared this document.  Q   All right.  And what became of this document, Mr.  Sterritt?  A   It was forwarded to the Minister of Fisheries and  Oceans, The Honourable Pierre de Bane.  Q   Is the purpose of the document correctly stated in its  title?  Is that what the document was intended to do?  A   Yes.  Upon receipt of the Pearce report, Mike Morrell,  the biologist, reviewed it, and it was also reviewed  by myself and others, and we had concerns and made  them known in this document.  Q   And when you say "others", who were the others?  A   Don Ryan, Gary Patsy and hereditary chiefs who had  reviewed the Pearce report.  RUSH:  May this be the next exhibit, my lord?  GOLDIE:  With the same limitations, my lord.  COURT:  Yes.  On the same basis.  Exhibit 642.  RUSH:  Tab 53. 7196  N.J. Sterritt (for plaintiffs)  In chief by Mr. Rush  1 THE REGISTRAR:  642.  2 (EXHIBIT 642:  Tab 53, Response by council to  3 fisheries policy dated November 26, 1982)  4 MR. RUSH:  5 Q   Mr. Sterritt, would you please refer to Tab 55?  This  6 is a letter from yourself to Mr. W.J. Rich of the  7 Aluminium Company of Canada, January 18th, 1982.  Can  8 you identify this letter as having been sent and  9 having been written and sent by yourself?  10 A   Yes.  This is the letter.  11 Q   What was the purpose of the letter?  12 A  Alcan was -- had set up a process and was inviting  13 involvement of the community in terms of impact  14 assessment procedures.  15 Q   Of what impact assessment?  16 A   Impact of the proposed Kemano Completion Project.  We  17 were -- the Wet'suwet'en hereditary chiefs were  18 concerned about the proposal in the Wet'suwet'en  19 territories, and we prepared this letter to tell them  20 our concerns and disagreement and also to express our  21 concern about the impact assessment procedures.  22 Q   All right.  In the last page of this letter on page 5,  23 it says:  24  25 "We have requested on several occasions that  26 we do a land claims presentation in the near  27 future.  We are prepared to do so, but we  28 feel there must be some resolution of the  29 foregoing beforehand."  30  31 Firstly, was there any land claims presentation  32 requested of you or the tribal council or any  33 hereditary chiefs that you were aware of?  34 A   No.  It wasn't requested, but we finally made  35 ourselves heard and we did a -- a small land claims  36 presentation to members of Alcan in Hazelton.  37 Q   Do you remember how -- was it shortly after this  38 letter or sometime after the letter; do you recall?  39 A   Yes.  40 Q   Yes to which?  41 A   Sometime after this, and I don't recall just how long  42 after.  43 MR. RUSH:  Okay.  And I wonder if that can be an exhibit, my  44 lord.  45 MR. GOLDIE:  I submit the same limitations apply to that.  46 THE COURT:  Yes.  On that basis Exhibit 643.  47 THE REGISTRAR:  Exhibit 643, Tab 55. 7197  N.J. Sterritt (for plaintiffs)  In chief by Mr. Rush  1  2  MR. RUSH  3  Q  4  A  5  Q  6  A  7  Q  8  9  10  A  11  Q  12  13  A  14  Q  15  16  A  17  Q  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  A  35  Q  36  37  38  39  A  40  MR. RUSH  41  42  43  44  45  46  47  (EXHIBIT 643:  Tab 55, Letter dated January 18, 1982)  Mr. Sterritt, would you please refer to Tab 56?  Yes.  Can you identify this letter?  Yes.  And The Honourable R.H. McClelland, was he the  minister of energy, mines and petroleum resources of  the Province of British Columbia on June 30th, 1982?  Yes.  And reference is made to a letter of Mr. McClelland's  of June the 4th, 1982.  Did you receive such a letter?  Yes.  This letter of yours of June 30th, '82 appears to be  in response to that; is that right?  Yes.  And you indicated in Paragraph 2:  "Earlier we had drawn your attention to the  government policy which stated all new  hydroelectric developments in B.C. were to  be built by B.C. Hydro and asked if it  applied to the Aluminium Company of Canada's  Kemano Completion Project.  Your reply  stated that the question would not be  addressed until such time as Kemano  Completion was proposed to the government as  a proj ect."  What time frame are you talking about here when you  said "Earlier we had drawn your attention to the  government policy"?  Are you able to say when that  was?  In the previous six to eight months.  Okay.  And had you received a reply, as indicated here  from Mr. McClelland, that the question would not be  addressed until such time as Kemano completion was  proposed to the government as a project?  Yes.  You state at the bottom of this letter, quote:  "We also find it hard to understand why  provincial resource agencies such as fish  and wildlife branch and forest service are  spending time working on Mean's Kemano  completion environmental reports when  government policy may exclude the company 719?  N.J. 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  from further power development."  Were the fish and wildlife branch and forest service  doing as you indicate here?  MR. GOLDIE:  Well, I object to that, my lord.  We're getting  very, very far field.  The purpose of this letter, and  I haven't heard the witness say yet that it was  written on the instructions of the hereditary chiefs,  but no doubt he will, appears to me to ask Mr.  McClelland to say something other than he said in the  letter of June the 4th, and what -- what that's got to  do with the issues before us, I -- completely misses  me.  THE COURT:  Does it really matter what the fish and wildlife  people were doing, Mr. Rush?  MR. RUSH:  It's not of momentous significance, but I do say, my  lord, that the letter discloses the efforts taken by  the tribal council, Mr. Sterritt, to attempt to  protect the territory of the Wet'suwet'en chiefs where  the proposal was --  THE COURT:  I'm prepared to admit it for the purpose of proving  the position that Mr. Sterritt took on that occasion.  I don't think it's necessary to go further and  determine what people working in other branches of the  government were doing.  MR. RUSH:  Well, only to ask Mr. Sterritt what his knowledge was  of that particular fact.  Perhaps that fact isn't, as  I've said, of momentous significance, but I think  knowing the facts stated here and his knowledge of  them is of importance.  MR. GOLDIE:  Well, the -- what the Provincial Government does or  what its employees do pursuant to a statute which  deals with applications under the Utilities Act or  what have you, in my submission, has got nothing to do  with this case.  If there was a concern -- and the  witness has yet to say that.  If there was a concern  on the part of the hereditary chiefs that something  which had come to their attention was going to affect  their interests, all the witness has to say is on  their instructions I wrote this letter.  THE COURT:  I'm with Mr. Goldie on that specific objection.  I  don't think I want to get into what fish and wildlife  were doing.  They might be doing something quite  improper, but I don't think that matters.  Very well.  MR.  THE  MR.  RUSH:  COURT  RUSH:  You're tendering the letter, are you?  If you'll allow me to just ask one or two more 7199  N.J. 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  questions on this.  THE COURT:  Yes.  MR. RUSH:  Mr. Sterritt, it indicates on the last paragraph,  quote:  "Therefore, on behalf of the Gitksan-Carrier  Tribal Council, I formally request that the  Provincial Government state now whether  their policy prohibiting large scale private  hydroelectric development applies to the  Kemano Completion Project or not."  MR.  MR.  A  Q  A  This indicates that --  GOLDIE:  Well, it indicates what it says.  RUSH:  Q   Well, this is, I guess, again a fundamental difference  between Mr. Goldie and I.  Not everything appears as  it is .  Mr. Sterritt, on whose behalf were you writing  this letter?  The hereditary chiefs of the Wet'suwet'en territories.  And I take it, Mr. -- well, was there other exchanges  between yourself and the ministry of energy, mines and  petroleum resources?  Yes.  The -- we had a previous letter to them, and  there may have been subsequent letters.  I don't  recall at this time.  All right.  And can you tell the Court what the  purpose of the involvement of yourself and/or the  tribal council was in these letter exchanges?  It was to express the concern of the hereditary chiefs  and it was to attempt to obtain information about  proposals that were being developed by Alcan and also  to put the Provincial Government on notice about the  aboriginal title and rights of the Gitksan and  Wet'suwet'en hereditary chiefs.  Did this so-called Kemano Completion Project proceed,  Mr. Sterritt?  A  MR.  THE  THE  MR.  MR.  THE  No, it did not.  My lord, may this  exhibit, please?  Yes.  644.  may this letter be the next  A  RUSH:  COURT  REGISTRAR:  644, Tab 56.  GOLDIE:  On the limitations that are stated; namely, it's  not for the truth of the matters therein stated.  RUSH:  Except as far as Mr. Sterritt has attested to.  COURT:  Yes. 7200  N.J. Sterritt (for plaintiffs)  In chief by Mr. Rush  1  2    ]  MR. RUSH  3  Q  4  5  6  7  8  A  9  Q  10  A  11  Q  12  13  14  A  15  16  17  18  19  20  21  22  Q  23  24  25  A  26  27  28  Q  29  30  A  31  Q  32  A  33  34  35  36  Q  37  38  39  A  40  41  42  Q  43  44  45  A  46  47  (EXHIBIT 644:  Tab 56, Letter dated June 30, 1982)  Now, Mr. Sterritt, we can just set that document book  aside for a moment.  Now, in the summer of 1984 you  told the Court that you -- the -- you had attended a  meeting at which the hereditary chiefs had given  instructions to commence this litigation?  Yes.  And I think you said that was at Gitanmaax, was it?  Yes.  On July the 12th.  Now, following that meeting what role were you playing  in respect of the research that was going on with  regard to the land claim?  Subsequent to that meeting -- at that meeting the  hereditary chiefs recommended that a court case on  aboriginal title and rights on ownership and  jurisdiction be undertaken, and under instruction from  the lawyers I was participating in research of the  territories of the Gitksan and, to a certain degree,  the Wet'suwet'en hereditary chiefs.  I also continued  my political and administrative role as president.  And was there a role that you played as a researcher  in conjunction with the role that Marvin George was  hired to play as a cartographer?  Yes.  I -- the information that I had gathered for --  prior to that and that I continued to gather after  that, I passed along to Marvin George to put on maps.  And were there others who were conducting research of  the Gitksan or Wet'suwet'en territories at that time?  Yes.  Alfred Joseph.  And what was he doing?  He was conducting research on the Wet'suwet'en  territories in a similar way that I was doing for the  Gitksan territories.  Glen Williams to a limited  degree was doing some research as well.  And was there a map that was eventually prepared that  showed the external boundaries of the Gitksan and  Wet'suwet'en hereditary chiefs?  Yes.  Marvin George had been asked to do a metes and  bounds of the territory and a draft map of the  external boundaries of the territory.  And was there a map that was eventually prepared as  well showing the internal boundaries of the Gitksan  and Wet'suwet'en hereditary chiefs?  Yes.  A draft map of the internal territories was also  drawn based on the information that had been gathered  to that time. 7201  N.J. Sterritt (for plaintiffs)  In chief by Mr. Rush  1  Q  2  3  4  A  5  6  7  Q  8  9  A  10  Q  11  12  13  A  14  Q  15  A  16  Q  17  A  18  19  Q  20  A   '  21  22  23  24  Q  25  A  26  27  MR. RUSH:  28  29  MR. GOLDIE  30  MR. RUSH:  31  Q  32  33  34  A  35  Q  36  A  37  Q  38  A  39  40  41  42  43  i  44  45  46  47  ]  Now, you've told us about field trips which you took  in 1983.  During 1984 were there any field trips which  you took at that time?  I'm sure that I took one or two, but I can't remember.  I can't fit it into the sequence.  Yes.  I -- I can't  place them right now.  All right.  There were other field trips which you  took in the -- after 1984, were there?  Yes.  There was in 1985, 1986.  All right.  Without necessarily putting them in the  correct sequence but in terms of 1985, do you recall  the field trips that you took then?  Yes.  I travelled to Bear Lake, Tarn Smaex.  Tarn Smaex?  Tarn Smaex, yes.  Is that S-m-a-e-x?  Yes.  And we did research in that area.  We identified  features.  When you say "we", who do you mean?  Well, Alfred Joseph was on that trip.  Hereditary  chiefs were on the trip.  There were also members of  the Carrier-Sekani Tribal Council, both Sekani people  and Gitksan people who were on that trip.  Was this a trip by airplane or helicopter?  Yes.  We flew into Bear Lake and landed there, and we  had the helicopter come to the area to assist us.  Okay.  Now, was there another trip, field trip that  you took in 1985?  :  I have no objection to leading on this point.  On July the 16th, Mr. Sterritt, do you recall taking a  field trip to Djil Djila or to Mosk Mountain by  helicopter?  Yes.  All right.  That was -- well, that was part of the same trip.  It was?  There was -- we flew in -- we flew in by helicopter.  There was also a group who went in by airplane.  And  on the second day we conducted research as far south  as Djil Djila, which is the mountain that was  immediately east of our first landing on the overview.  We landed at Lip Sganisit, Kotsine Mountain, on the  overview, and that mountain is just east of there.  We  then went to -- in 1985 we then went to -- north along  the mountains to as far as Skanist Wiigak, which is  Mosk Mountain. 7202  N.J. 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.  THE  THE  THE  THE  THE  THE  MR.  THE  THE  THE  MR.  MR.  MR.  RUSH:  Okay.  Now —  COURT:  I'm sorry.  Did you land at a mountain east of  Kotsine or west of Kotsine?  WITNESS:  East.  COURT:  East?  WITNESS:  It's Driftwood Mountain or Range.  COURT:  Is it mountain or range?  WITNESS:  It's on the Driftwood Range.  RUSH:  Q   You gave a name for Kotsine Mountain?  A   Lip Sganisit.  SPELLER:  L-i-p-space-S-g-a-n-i-s-i-t.  COURT:  I-s-i?  SPELLER:  I-s-i-t.  RUSH:  Now, Mr. Sterritt, do you want to just show us where  that is on the map, please?  You indicated that it was  a point close to a place where you went on the  overview.  GOLDIE:  I prefer that the witness use the map that has  already been marked in the proceedings.  RUSH:  Q   We can use both then.  Just have a reference to  Exhibit 5 for identification, Mr. Sterritt.  Lip Sganisit, Kotsine Mountain, is right on this  internal boundary between Haiwas and Miluulak, and  that's a mountain we landed on in the overflight.  Djil Djila, the Driftwood Range, is the -- are the  mountains immediately east of there, and we landed on  the north end of Djil Djila.  In 1985?  In 1985.  All right.  If you'll just bring that map down, the  the aide-memoire.  Do you want to just point out where  it was that you landed on the overview?  There's a hexagonal mark, dot, there.  We landed at  Kotsine Mountain, right there, where the flight turns  and goes east, and when we turned and went east and  then north, we flew around the south end of Djil  Djila, the Driftwood Range.  And where was it in 1985 that you set down?  Almost at the north end of the Driftwood Range as  shown on the map.  All right.  Thank you.  Just return to the witness  box.  SPELLER:  Driftwood Range is 1623.  RUSH:  Is which?  REGISTRAR:  Driftwood Range.  A  Q  A  Q  A  Q  A  MR. RUSH  THE  MR.  THE 7203  N.J. Sterritt (for plaintiffs)  In chief by Mr. Rush  1  MR. RUSH:  2  3  THE COURT  4  5  MR. RUSH:  6  Q  7  8  A  9  10  11  12  13  Q  14  A  15  Q  16  A  17  18  Q  19  20  21  A  22  Q  23  A  24  Q  25  26  27  28  29  A  30  31  32  33  34  35  36  Q  37  38  A  39  Q  40  41  A  42  43  44  45  Q  46  47  A  Now, Mr. Sterritt, did you do any other field trips  in that year of 1985?  :  Well, your friend suggested you could lead, Mr.  Rush.  All right.  1986, I understand that you went to the  Blackwater groundhog area by helicopter?  Yes.  There were two flights in the -- in September of  1986:  One on the first day and then another flight on  that -- the day after.  We went -- the people who  accompanied me on that flight were David Blackwater,  'Niist, Walter Blackwater, his brother.  Is this Walter Blackwater Senior?  Yes.  Yes.  All right.  And Nancy Supernault, who -- the four of us went on  the trip the first day.  We heard evidence about David and Walter Blackwater.  Nancy Supernault, is she a Gitksan person with a  hereditary chief's name?  Yes, she is.  Her name is Sim hoodin.  Sim hoodin?  Yes.  I'll just ask you to proceed with your evidence on  this, and we'll -- I'll ask Mrs. Howard if she will  get us the spelling for that.  On this occasion you  said there were two -- two occasions, two different  places that you went to?  Yes.  On the second day, Delgamuukw, Albert Tait,  'Niist, David Blackwater, and Tiisxw, Walter  Blackwater, we flew to New Culdoe, Tselasxwm Gansxw,  and Old Culdoe, and identified some fish sites and  identified the -- the cabin sites at both locations.  And Albert Tait and Walter and David both pointed out  these different features there.  Now, Walter and David are the David Blackwater and  Walter Blackwater?  Yes.  Now, did you also conduct a field trip to Moose Valley  in September of 1986?  Yes.  Later on we drove by vehicle around via Fort St.  James, Vanderhoof, and Fort St. James and then north  to Moose Valley, and conducted that field trip and  held meetings there.  All right.  Hereditary chiefs were with you on that  occasion?  Yes, they were. 7204  N.J. Sterritt (for plaintiffs)  In chief by Mr. Rush  1 MR. RUSH:  And I'm just going to pause here.  Mrs. Howard, Sim  2 hoodin, I think, was the name.  Could you please give  3 us that spelling?  4 THE SPELLER:  K-s-i-m-h-o-d-a-n.  5 THE COURT:  h-o?  6 THE SPELLER:  d-a-n.  7 MR. RUSH:  8 Q   Mr. Sterritt, in 1987 you were also involved in a  9 number of field trips, as I understand it, and you  10 went on some field trips to the Wet'suwet'en  11 territories; is that correct?  12 A   Yes, I did.  13 Q   And where did you go?  14 A   I went to Sam Goosely area with Alfred Mitchell and  15 Alfred Joseph.  I went just south of Smithers and  16 Telkwa and --  17 Q   Is this on a separate occasion now or the same  18 occasion?  19 A   The same time coming through there.  20 Q   Yes?  21 A  And then on -- on a subsequent date, and I don't  22 remember the date, but went to Wah Tah K'eght's  23 territory and to the wolf territory, Woos, with Alfred  24 Mitchell and you.  We hiked into that area.  25 Q   Wah Tah K'eght, my lord, is 68.  Yes.  All right.  2 6 And —  27 A   I also made a separate trip with Madeline Alfred and  28 several other ladies from Moricetown to Wah Tah  29 K'eght's territory east of Moricetown in that period.  30 Alfred Mitchell accompanied me on that trip and Victor  31 Jim.  32 Q   Is that to the area of Caaz Creek?  33 A   Yes.  34 Q   That's C-a-a-z Creek.  Did you also make a trip or  35 have you mentioned it, Mr. Sterritt, to Round Lake?  36 A   Yes, I did.  37 Q   Okay.  Was that in the summer of 1987?  3 8 A   Yes, it was.  39 Q   Okay.  And did you make a trip as well to the  40 Bowser-Bell Irving River area?  41 A   Yes.  In September of 1987, Nii Kyap, David Gunanoot,  42 James Morrison, the present Nii Kyap, Gerald Gunanoot,  43 and I went to the Bowser area.  44 MR. GOLDIE:  What date was that again, please?  4 5 MR. RUSH:  46 Q   That's in September of 1987.  Do you recall the exact  47 day of the month, Mr. Sterritt? 7205  N.J. Sterritt (for plaintiffs)  In chief by Mr. Rush  1  A  2  Q  3  4  5  A  6  7  8  9  10  Q  11  12  13  A  14  Q  15  A  16  Q  17  A  18  Q  19  20  21  A  22  MR.  RUSH  23  24  THE  spel:  25  MR.  RUSH  26  THE  spel:  27  28  MR.  RUSH  29  Q  30  31  32  33  34  A  35  Q  36  A  37  Q  38  A  39  40  41  Q  42  43  44  45  46  47  A  No, I don't.  All right.  And what was the purpose of that trip?  I  guess I should ask you what was the purpose of all of  these trips?  The purpose was to identify features, to -- to go  along with a knowledgeable elder hereditary chief to  identify features and boundaries, and in this case was  to go to Bowser with Nii Kyap, David Gunanoot, to do  that.  All right.  Now, the area that you travelled to with  Alfred Mitchell, was that an area known as Harold  Price Creek?  Yes.  And was that in the summer of 1987?  Yes.  Did you travel by foot?  Yes.  We hiked into that area.  And in terms of the field trips that you made, were  you required to do similar types of hiking to access  the areas where you were going?  Yes.  From time to time.  Now, Mrs. Howard, I understand there was a name that  you were going to spell for us.  E1R:  Walter Blackwater?  Yes.  E1R:  T-i-i-s-x-w.  And the name for Culdoe is 108 on  the word list.  108.  Thank you.  Now, Mr. Sterritt, in the period  after 1984 after instructions were given to commence  this litigation, were their house -- meetings of  houses of the Gitksan and Wet'suwet'en hereditary  chiefs?  Yes, there were.  And did you attend some of these meetings?  Yes, I did.  Okay.  And what was the purpose of the house meetings?  It was to get direction from the house in terms of the  court case.  It was to identify their house  territories and fishing sites.  Now, as a result of the field trips that you took and  the house meetings and other information which you  have received from hereditary chiefs, was there a map  of the external boundaries of the Gitksan and  Wet'suwet'en hereditary chiefs drawn for presentation  in court in May of 1987?  Yes, there was. 7206  N.J. 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.  Q   Now, you've indicated on a -- several occasions, Mr.  Sterritt, that you had been working part time doing  gathering of information about the hereditary chiefs'  territories.  Did you -- did your work in this respect  become full time at some point?  A   Yes.  In 1986, December, as a result of instructions  from the lawyers, I began to work full time on the  external territories of the Gitksan and Wet'suwet'en.  Q   And how long have you worked on the -- worked on this  on a full-time basis?  A   From that time, I have worked virtually full time.  My  duties as president and administrator became secondary  to the task of working with the information that had  been gathered.  Q   All right.  A  And it moved from the external boundaries to the  internal boundaries as well and working with the  hereditary chiefs on affidavits.  Q   All right.  Now, you in 1987 -- well, I should say in  December of 1986 when you began to work full time in  this role, you were still president of the  Gitksan-Wet'suwet'en Tribal Council; is that right?  A   Yes.  Q   And you were president of the tribal council during  1987?  A   Yes.  Until the annual assembly of the fall of 1987.  Q   And at that time I take it there was -- was there an  election for the position of president of the  Gitksan-Wet'suwet'en Tribal Council?  A   Yes, there was.  Q   And you were not successful in that election?  A   That's correct.  Q   And from that point on you were no longer president of  the tribal council?  A Yes. That's right.  Q   Did you after that point continue your research work  that you've described to the present?  A   Yes, I did.  RUSH:  My lord, I'm just shy of the hour, but it is a  convenient place for me to stop and embark on a new  topic tomorrow.  All right.  Thank you.  We'll adjourn.  Order in court.  Court will adjourn until 10:00  tomorrow.  THE COURT  THE REGISTRAR  a. m  (PROCEEDINGS ADJOURNED UNTIL JUNE 23, 1988 at 10:00 A.M.) 7207  N.J. Sterritt (for plaintiffs)  In chief by Mr. Rush  9 I hereby certify the foregoing to be  10 a true and accurate transcript of the  11 proceedings transcribed to the best  12 of my skill and ability.  13  14  15  16 Kathie Tanaka, Official Reporter  17 UNITED REPORTING SERVICE LTD.  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


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