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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1988-09-28] British Columbia. Supreme Court Sep 28, 1988

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 3452  N. Sterritt (For Plaintiffs)  Cross-exam by Mr. Goldie  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  Vancouver, B. C.  September 28, 1988.  NEIL STERRITT, Resumed:  THE REGISTRAR:  In the Supreme Court of British Columbia, this  Wednesday, September 28, 1988.  Delgamuukw versus her  Majesty The Queen, at bar.  THE COURT:  Mr. Goldie?  MR. GOLDIE:  Thank you my lord.  THE COURT:  I am sorry, Mr. Goldie, can you assist us on a  scheduling matter?  Do you expect to be the rest of  the week with the witness or where do we stand?  MR. GOLDIE:  I expect I will be asking the witness to be stood  down sometime today.  We are prepared to proceed with  the experts if they are called but otherwise I will  reach a point where I will be asking him to be stood  down.  THE COURT:  All right.  Thank you.  CROSS-EXAMINATION BY MR. GOLDIE:  (Continued)  MR. GOLDIE:  Q   Mr. Sterritt, I have just one or two more questions  about Kathleen Wale that we were discussing yesterday.  And my question to you is this:  On October 23rd,  1984, when the writ was issued, where was the  territory that was claimed on behalf of Kathleen Wale  located?  A   The -- on behalf of Kathleen Wale the House of Gwoimt?  Q   That is correct.  A  Along the Skeena, just south of the Village of  Kisgagas.  Q   Is that the only place that territory was claimed on  her behalf?  A   Yes.  The other areas which would have fallen under  her name, would have been under either Smaex or Tasbux  or Tsiiwus, I am not sure which of those names were  associated with her name.  Q   None of the names that you have just mentioned are  referred to in the statement of claim, are they?  A   I believe --  MR. RUSH:  You should put that before him.  MR. GOLDIE:  Q   Under Exhibit 1 or under tab 1 is appended to your  affidavit the statement of claim is issued on November  23rd, 1984 and I would like you to confirm for me that 8453  N. Sterritt (For Plaintiffs)  Cross-exam by Mr. Goldie  1 none of the three names that you have just mentioned  2 is referred to in the statement of claim.  3 THE COURT:  Well, that should be a matter for counsel.  4 MR. RUSH:  I have looked at it and I can confirm that.  5 THE COURT:  All right.  And your question, Mr. Goldie, was  6 directed to the first statement of claim?  7 MR. GOLDIE:  Yes, I said on October 23rd, 1984, where was the  8 territory that Gwoimt was claiming in the statement of  9 claim.  10 Q   Now, can you respond to my question?  11 MR. RUSH:  He did.  12 THE COURT:  He said on the Skeena near Kisgagas.  13 MR. GOLDIE:  14 Q   Near Kisgagas.  What about the territory which is in  15 the upper right hand corner and which in Exhibit 102  16 is identified as territory claimed on behalf of Gwoimt  17 and her associated chiefs?  18 A   Can you repeat that again?  19 Q   Who claimed that territory in October 23rd, 1984?  The  20 territory that stretches south from Thutade Lake to  21 Bear Lake, and which is identified on Exhibit 102 with  22 the letters and numeral 1A5, and the 5 under the code  23 is identified as Gwoimt, Smaex and Tsiiwus.  I am  24 asking you who claimed that territory on October 23rd,  25 1984?  26 A   That area was a territory associated with Smaex.  27 Q   Who is not referred to in the statement of claim?  2 8 A   No.  29 Q   So, therefore, Gwoimt was claiming that territory on  30 behalf of one of her associated chiefs?  31 A   Yes.  32 Q   All right.  Now, where was the territory that she was  33 claiming for herself or her associated chiefs in 1985?  34 THE COURT:  You mean the territory near Kisgagas?  35 MR. GOLDIE:  Well, I now have it, as I understand it from Mr.  36 Sterritt, that she would be the plaintiff who would be  37 claiming the territory south of Thutade Lake, through  38 to Bear Lake, because one of her associated chiefs was  39 the person associated with that territory.  40 Q   But she would be the plaintiff, the declaration would  41 be made in her name, is that not correct?  42 A  As I recall -- you're talking about 1985 now?  43 Q   Well, I wanted to make sure that his lordship was  44 following me and I want to go back to 1984, do you  45 follow me, at the time the writ was issued, October  46 23rd, 1984, and do you agree with me that at that time  47 the territory south of Thutade Lake to Bear Lake was 8454  N. Sterritt (For Plaintiffs)  Cross-exam by Mr. Goldie  1  2  A  3  4  5  6  7  8  9  Q  10  11  12  13  A  14  Q  15  A  16  Q  17  18  19  20  21  22  A  23  Q  24  25  26  27  THE COURT:  28  MR. GOLDIE  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  A  being claimed by Kathleen Wale?  No, I can't -- I don't recall just how it was framed  in 1984, the statement of claim was framed.  Tsabux,  Tsiiwus and Smaex were associated with Gwoimt, but  whether we had identified in 1984, just how we had  identified that at that time, I don't recall in  relation to that territory north and northeast of Bear  Lake.  Well, if it was any one of those people it would have  to be Kathleen Wale who was making the claim, because  the others aren't even mentioned in the statement of  claim; is that right?  They are not mentioned, that would be right, yes.  All right.  So we have it --  If that was the case, yes.  Well, I think Mr. Rush has agreed with me that they  are not mentioned in the statement of claim.  Now, the -- we have it, then, that the claim to  that territory was being made by Kathleen Wale and she  was the person identified with that territory at that  time?  As I recall, yes.  I want to refer you to your examination for discovery,  volume three, page 290, question 1397.  "Q   Would it be fair to say --"  Does your lordship have it.  Yes.  :  1397 to 1398:  Q Would it be fair to say this then, that in 1984  the 37 plaintiffs were those who had identified  themselves as houses?  A  Well, yes, you could say that, you could say that  that those -- that those houses had been  identified at that time as representing the  people and the land.  Q   And in the subsequent two years the process that  you have been describing as taking place resulted  in the identification of further houses?  MR. GRANT:  You mean houses which were not identified  in 1984?  MR. GOLDIE:  That is the process he has been  describing.  A   Yes, that could be the situation."  Do you remember being asked those questions and you  gave those answers?  Yes. 8455  N. Sterritt (For Plaintiffs)  Cross-exam by Mr. Goldie  1 Q   And they were true?  2 A   Yes.  3 Q   And in volume four, page 468, question 2022 to 2033:  4  5  6 "Q   Let me phrase it a little differently.  At the  7 time that the writ was issued you had, on October  8 22nd, 1984, there was attached a Schedule A and  9 B, a metes and bounds description and a map.  The  10 map was Exhibit 10.  Do you recall that?  11 A   Yes."  12  13 My lord, Exhibit 10 is now Exhibit 731.  14 "Q   Within the external boundaries depicted on  15 Exhibit 10 you knew of the house boundaries in  16 some detail, perhaps not in complete detail; is  17 that a fair statement?  18 A   I knew, I knew that, yes.  I knew of the house  19 territories, that there was a lot of work that  20 had to be done genealogically and in consultation  21 back and forth with hereditary chiefs to ensure  22 that the depiction of the territories at that  23 time was accurate."  24 You were asked those questions and you gave those  25 answers?  26 A   Yes, I did.  27 Q   And the answers were true?  28 A   Yes.  29 Q   Now, in 1985 your view, I suggest, of who was the  30 proper chief identified with the territory south of  31 Thutade Lake and extending to Bear Lake, was still  32 Gwoimt or Kathleen Wale?  33 A   No.  In the summer of 1985, I went on a field trip to  34 that area with members of the House of Nii Kyap, a  35 member of the House of Nii Kyap, and during that  36 period identified features and then following that, in  37 the -- which would be when I sat down in 1986, in  38 December of 1986, then I brought together all of the  39 information that I had from over the years as well as  40 that field trip and began to put all of that together.  41 Q   But you didn't change the map that is Exhibit 102 and  42 is dated October, 1985?  43 A   No, it was a base map and a draft map that Marvin was  44 working with and I had, in terms of him and I working  45 together on that, I hadn't done that and not until  46 September or December of 1986, is when I sat down and  47 began to go into it in detail. 8456  N. Sterritt (For Plaintiffs)  Cross-exam by Mr. Goldie  1 Q   And there are notes of your field trip in the summer  2 of 1985 to which you refer?  3 A   Yes, there are.  4 Q   And who are the people who accompanied you on that?  5 A   On that particular trip there was two sets of -- on  6 one day I went out with two sets of people, in the  7 morning I went out with William Charlie, who is Wawsi  8 Mideek, and my father, Neil B. Sterritt, Wii Gaak, and  9 then in the afternoon I went out with Peter Abraham,  10 and Alec Bob, Alec Bob, and Alec Bob is from the House  11 of Nii Kyap.  12 Q   Were any of your imformants on that occasion members  13 of the House of Gwoimt?  14 A   No.  15 Q   But it was on that occasion, and possibly on  16 subsequent occasions, that you obtained information  17 that caused you to correct or change the territory  18 at -- attributed to Gwoimt in the area south of  19 Thutade Lake?  20 A   No, the -- I don't know at what point Tsabux was  21 identified in the statement of claim as a hereditary  22 chief with a house, for the purposes of the statement  23 of claim, but at whatever point that was, that -- I  24 mean at any given time, that is the area that was  25 known to be territory of the House of Tsabux, and the  26 chiefs within that house are Smaex, and Tsiiwus, and  27 that was the reason that Gwoimt's name appeared on the  28 map originally, because Gwoimt was associated with  29 those chiefs and sat together at the feast, and still  30 sit together at the feast. But it was not the  31 territory of Gwoimt.  32 Q   Mr. Sterritt, I am not talking about the subsequent  33 appearance of Tsabux or anybody associated with him, I  34 talking about the substitution of Nii Kyap for Gwoimt  35 in the northern part of the area which had been  36 attributed to her by you in 1984?  37 A  Well, I pointed out yesterday that David Gunanoot, Nii  38 Kyap, had mentioned that Black Hat Tom was his uncle  39 and it wasn't clear at that time to me what the  40 relationship was between Black Hat Tom, who was also  41 known as Tom Tsabux, and Nii Kyap, and that's the  42 reason for that.  43 Q   Well, you haven't got to the point of why you  44 attributed Gwoimt to that area in the first place?  45 A  Well, I think I have.  4 6 Q   Well, why?  47 A   Because of the relationship between Gwoimt and Tsabux. 3457  N. Sterritt (For Plaintiffs)  Cross-exam by Mr. Goldie  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  Q   Well, Tsabux subsequently appears in his own right, we  are not talking about him, we are talking about the  substitution of Nii Kyap for Gwoimt in the northern  part of this area?  A   I just explained the connection.  I wasn't clear on  the relationship between relationship between Tsabux  and Nii Kyap, because David Gunanoot had called Black  Hat Tom his uncle and I thought there might be a  relationship.  When we pursued that further and got  into it, in fact there was a separate House of Tsabux  and the House of Nii Kyap was separate.  And -- but  that's the reason for that at the time.  Q   And the information upon which you attributed the  territory to Kathleen Wale in 1984 proved to be wrong?  A   No.  I pointed out, I think we have gone over this a  number of times this week, that the first statement of  claim identified a number of hereditary chiefs who  would represent a certain number of people and all of  the territories.  Gwoimt in that case was associated  with Smaex, Tsiiwus and Tsabux and for that reason  Gwoimt's name appeared in that area.  But it was not  the territory of Gwoimt.  Q   Despite what the statement of claim alleged?  A  Well, I think I have clarified that for you a number  of times.  Q   I am interested in finding out the process which  resulted in an allegation in the statement of claim  with respect to a named person as the head of a house  and whose name us subsequently removed.  And I think I  have your explanation.  A   Yes, I have explained that a number of times.  Q   Now I want to move --  THE COURT:  Before do you that, the territory you mentioned as  being attributed to Kathleen Wale at the time of the  first statement of claim near Kisgagas, is that still  attributed to her or has that been -- has she been  replaced in that area?  A   No, that's still there.  It's south of Kisgagas --  THE COURT:  And it's still attributed to Gwoimt?  A   Yes, this is the one right here.  Kisgagas is right  about here and actually it's more southwest when you  look at the map.  unchanged?  :  So that that's  Yes.  :  Thank you.  THE COURT  A  THE COURT:  MR. GOLDIE:  Q   That's unchanged from 102, basically, right straight 345?  N. Sterritt (For Plaintiffs)  Cross-exam by Mr. Goldie  1 through to overlay map 9-A?  2 A   Yes, I believe so.  3 Q   Now, I want to ask you some questions about the  4 territory of Geel.  One of -- and this is the northern  5 territory -- and one of the aspects of the concessions  6 made to the Tahltan was to reduce Geel's territory in  7 size; is that correct?  8 MR. RUSH:  Excuse me, there has been no evidence of concessions  9 made to the Tahltan?  Are you paraphrasing the  10 evidence of Mr. Sterritt's or is this a question you  11 are putting to the witness?  12 MR. GOLDIE:  That's how I am characterizing it.  13 A  Well, that's an improper characterization.  14 MR. GOLDIE:  15 Q   Well reduction, how about that, the reduction in the  16 northern territory in favour of the of the Tahltan?  17 Are you happier with that?  18 A   That's a better word but --  19 THE COURT:  How would you describe it?  20 A  An identification of the further work of the further  21 work on the boundaries in that area --  22 THE COURT:  A recognition of the Tahltan claim to that claim  23 formerly claimed by the Gitksan?  24 A   Yes.  25 MR. GOLDIE:  26 Q   And that was one -- one of the results of that  27 re-definition of that was the  -- what was part  28 originally thought to be the territory of Walter  29 Harris as Geel became Tahltan territory?  30 A  Well, I would say it was always Tahltan territory.  As  31 I mentioned, people defined the area as going to the  32 head of the Skeena and when you're situated at  33 Hazelton that's a very general term.  But in fact,  34 ultimately, with more and better work, then we were  35 able to identify where the boundaries went in that  36 area.  37 Q   And what you're saying is that once that was done you  38 recognized that territory which had been earlier  39 claimed as territory of Geel's, had always been  40 Tahltan territory?  41 A   Yes.  42 Q   Now, I have looked through the material that you gave  43 us for Geel, and Mr. Walter Harris doesn't appear to  44 be one of your informants, and when I say the material  45 you gave us for Geel I am referring to a blue binder  46 of material dated April 20th, 1987, which you informed  47 us included the material that you had relied upon in 8459  N. Sterritt (For Plaintiffs)  Cross-exam by Mr. Goldie  1 arriving at your conclusion that the territory we are  2 talking about was -- belonged to Geel.  And did he --  3 was Mr. Walter Harris is one of your informants?  4 Because I don't find any reference to him in this book  5 that you gave us.  6 A   No, Walter himself was not familiar with the territory  7 but what he did know from his father and from his  8 uncles was that Geel had a territory at the head of  9 the Skeena, but it was other persons who were familiar  10 with that territory who defined it for me.  11 Q   Well, one of your informants was Walter Blackwater?  12 A  Walter Blackwater was one of them.  13 Q   He provided you with a lot of information, did he not?  14 A  Well, in respect to what?  15 Q   Well, this and other territories besides this?  16 A   Yes.  17 Q   He gave commission evidence, did he not?  18 A   Cross-examination, I think.  19 Q   Cross-examination on an affidavit, yes.  20 A   Yes.  21 Q   And you were present?  22 A   Yes, I was.  23 Q   Did he give his evidence in Gitksan?  24 A   Yes, I think he did.  25 Q   Is it my understanding that the interviews that you  26 conducted with him were conducted in English?  27 A   It was a mix when Walter talked to me, sometimes he  28 talked in English but he speaks broken English and  29 sometimes he spoke in Gitksan, and in the company of  30 someone else.  I am not -- not always with someone  31 else, but sometimes with someone else there.  32 Q   One of the tapes that was produced on September 23rd  33 is the plaintiffs' document 5594, which I am  34 instructed was an interview with Mr. Blackwater May  35 22nd, 1983.  I am instructed that that entire tape is  36 in English.  37 A   Yes, I think it may have been.  I haven't reviewed  38 that tape but it may have been.  39 Q   And I am instructed that Mr. Blackwater showed no  40 difficulty with the English language in the course of  41 that interview, would that be your recollection?  42 A  Well, he could converse in English but to express  43 himself in terms of the territory in a full way,  44 it's -- and I find that with a lot of the Gitksan and  45 Wet'suwet'en, that they express themselves much better  46 in their own language and Gitksan is his first  47 language. 8460  N. Sterritt (For Plaintiffs)  Cross-exam by Mr. Goldie  1  Q  2  3  4  A  5  Q  6  7  A  8  Q  9  10  A  11  12  Q  13  14  A  15  16  Q  17  18  A  19  Q  20  21  A  22  23  24  Q  25  A  26  27  28  Q  29  30  31  32  33  34  A  35  36  37  38  39  40  41  42  43  44  45  46  THE COURT  47  The question that I put to you was that he experienced  no difficulty in the English language in the course of  that interview; is that your recollection?  I don't recall whether he did or not.  But you do recall that the entire interview was  conducted in English?  I am not sure about that, whether it was or not.  But since there is a tape, we will take the tape as  conclusive, will we?  I haven't listened to that tape.  I haven't reviewed  that tape, I think, since that time.  Do you recall that during that interview there was a  map of the areas being discussed?  I think there may have been a 1 to 250,000 map.  I am  not sure about that.  You and Mr. Blackwater discussed it, features on that  map, did you not?  I believe we did, yes.  Mr. Blackwater had no difficulty in following you on  the map?  Yes, he did.  I would point out a feature, and he  would go skimming across the map.  I had a great deal  of difficulty with it.  But he was able to understand what the map was?  Not really.  From just the way he dealt with the map,  he couldn't.  And in subsequent sessions with Walter I  found that I have had the same experience.  I am talking about this session that is on a tape that  was produced in September, September 23rd, of a  written interview on May 22nd, 1983, and I am  suggesting to you that Mr. Blackwater in that  interview did not experience difficulty in discussing  with you features on the map?  He had no difficulty discussing features.  But with  respect to the map, he may have appeared to understand  but I found from that and from other discussions with  Walter with a map in front that he could not follow a  map.  And would he go -- I would point out a place on  a map and we would exchange information as to what  that feature was, and then he would -- then he would  start to describe where he was going from there and he  would be running all over the map as though -- he may  have sounded that he understood the map, but in fact  he was all over the page or whatever was in front of  him.  :  Which of the various Blackwaters went on the  northern tour? 8461  N. Sterritt (For Plaintiffs)  Cross-exam by Mr. Goldie  1 A   That was Walter's brother, David, that came on the  2 trip.  3 THE COURT:  David?  4 A   Yes.  5 MR. GOLDIE:  6 Q   Now in the book that you handed us in April of 1987 or  7 handed -- not handed to us but that we received in  8 April of 1987, I find a record of an interview with  9 Mr. Walter Blackwater on the 12th of January, 1987 and  10 is this handwriting yours?  11 A   Yes.  12 Q   And there is red underlining in the page as we  13 received it, was that provided by you for our  14 assistance?  15 A   Is this from that document book?  Yes, okay.  Yes, I  16 believe I did.  17 Q   Now that interview was by telephone?  18 A   I am not sure whether it was or not.  19 Q   Well, I am directing your attention to the words "by  20 telephone" just opposite the date.  21 A   Yes.  22 THE COURT:  Mr. Goldie, the date was?  23 MR. GOLDIE:  12th of January, 1987, my lord.  24 Q   And that interview was conducted in English?  25 A   Yes, it was.  Well, primarily, I think primarily in  26 English.  27 Q   And at the bottom of the page, underlined in red, one  28 of three lines underlined in red, you have first  2 9 "boundary of Geel", and then a line down, you have  30 "boundary of Geel goes way up to Stikine."  What did  31 you understand -- first I should ask you, is that a  32 transcription of something that Mr. Blackwater told  33 you?  34 A   Yes.  35 Q   What did you understand him to mean by "way up to  36 Stikine"?  37 A  Well, quite often they talk about the Stikine people  38 and in that case he was talking about the boundary  39 would go to the Stikine people.  40 Q   All right.  He didn't mean to the headwaters of the  41 Stikine, did he?  42 A   I don't think so.  They -- it's my understanding that  43 it went up to the Stikine and I don't think he was  44 talking about the Stikine River.  45 Q   Or -- well, what you recorded was "boundary of Geel  46 goes way up to Stikine."  Now that could be either the  47 river or the people? 8462  N. Sterritt (For Plaintiffs)  Cross-exam by Mr. Goldie  1 A   They use the name Stikine interchangeably.  Actually  2 they use that more than Tahltan, but they use that  3 interchangeably with the people.  4 Q   But my question to you is, that that could have been  5 either the people or the river?  6 A  Well, that's a possibility, that that's what it could  7 be, yes.  8 Q   Of course if he was referring to the river he was  9 mistaken?  10 A  Well, the -- yes, because it doesn't go way up to the  11 head of the Stikine.  12 Q   Right.  By January 12th, 1987, you were dealing with  13 the Tahltan people or had dealt with them in  14 connection with their claims?  15 A   Prior to that I had talked to Martha Himadim, Martha  16 Sinclair, and she had indicated where the boundary  17 went, boundary went up the Skeena as well.  18 Q   My question was:  At that time, had you been in  19 contact with the Tahltan people?  20 A   In what year?  21 Q   January the 12th, 1987.  22 A   I think that the trip that I took to Iskut, if I  23 remember right, was in 1986, was in the fall of 1986.  24 Q   All right.  Now, you have advised his lordship that  25 the entire northern territory of Geel's was excluded  2 6 from the map which accompanied the statement of claim  27 as issued in October, 1984, because Geel had not, in  28 effect, decided at that point, had not decided to join  29 the lawsuit, am I right in that?  30 A   Yes.  31 Q   Now, had you identified any other territories as  32 belonging to Geel at that time?  33 THE COURT:  From what time is that?  34 MR. GOLDIE:  October of 1984, my lord.  35 THE COURT:  Thank you.  36 A   In what area?  37 MR. GOLDIE:  38 Q   Well, just generally.  39 A  Well, we knew that Geel was associated and had  40 territories in the area of Sweetin River down in  41 the -- on the Kispiox river.  42 Q   Was that removed from the claims area because Mr.  43 Harris hadn't decided to join the lawsuit?  44 A   No.  One of the chiefs in his house had indicated that  45 he wished to go in at that time and he did.  46 Q   Well, in whose name was that territory claimed in the  47 statement of claim as issued in October, 1984? 8463  N. Sterritt (For Plaintiffs)  Cross-exam by Mr. Goldie  1 A   I am not sure.  I would have to look.  I don't recall.  2 Q   All right.  But we do have it clear that there was  3 property which has been or territory subsequently  4 identified as Geel which was within the boundary of  5 the land claim as it was in October, 1984, and was not  6 excluded, even though the northern territory was  7 excluded?  8 A   Yes.  9 Q   And you can't recall the name of the person who  10 claimed that territory in 1984?  11 A  Well, it's a member of his house.  I think his name  12 is -- and I think Walter had indicated that if he  13 chose to enter at that time, that he could -- I think  14 his name is Niista Huuk, that's John Heit.  15 Q   Well, he wasn't named in the statement of claim, was  16 he?  17 A   No, but that territory was associated with someone  18 else and I don't recall who it was associated with  19 then.  20 Q   You may have an opportunity of consulting the  21 statement of claim during the break and perhaps you  22 can tell us after that who was claiming that Sweetin  23 River territory in October of 1984.  24 THE COURT:  I take it Geel was not a plaintiff at that time?  25 MR. GOLDIE:  He was not a plaintiff at that time, my lord.  And  26 as Mr. Sterritt has confirmed, the exclusion of this  27 finger of territory in the north, I am referring to an  28 overlay which shows the territory as outlined in the  29 claim to the Federal Government in 1977 and the  30 territory as outlined in what is now Exhibit 731, the  31 map attached to the original statement of claim was  32 excluded because Mr. Harris had not made up his mind.  33 Q   One other reference, if you can assist us, Mr.  34 Sterritt, another one of your informants with respect  35 to Geel's territory was Martha Brown?  36 A   Yes.  37 Q   And I am going to show you notes of an interview with  38 her dated November 30th, 1984.  Are those are your --  39 is that your handwriting?  40 A   Yes, it is.  41 Q   And the people present at that time were Martha Brown,  42 S. Robinson, is that Steve Robinson?  43 A   Yes.  44 Q   E. Samson, who is that, please?  45 A   That's Eva Samson.  46 Q   And yourself?  47 A   Yes. 8464  N. Sterritt (For Plaintiffs)  Cross-exam by Mr. Goldie  1 Q   And this was "re her territory"; is that correct?  2 A   Yes.  3 Q   And you have underlined on those pages those  4 observations which she made which relate to the  5 territory of Geel?  6 A  Well, yes.  7 Q   And on that date, November 30th, 1984, did she say to  8 you that Geel's territory is around Groundhog Mountain  9 and Table Mountain, it doesn't go past there?  10 A   Yes, she did.  11 Q   That is considerably south of the boundary which  12 existed before the reduction or re-definition that  13 occurred with the Tahltans?  14 A  What's the date on that?  15 Q   November 30th, 1984, according to this?  16 A   Yes.  17 Q   Am I not correct then, Mr. Sterritt, that shortly  18 after the statement of claim was issued, you were  19 advised by Martha Brown that Geel's territory was --  20 the boundary was considerably short of what was  21 depicted in the next amendment to the statement of  22 claim?  23 A   Yes, I did.  And the reason for that is that I wanted  24 to get further information and also to, once I had  25 that information, to deal with the entire northern  26 boundary, not all at once or not piece by piece.  27 Q   In any event what she told you was place the -- placed  28 the boundary far short of the Stikine River?  29 A   Yes.  30 Q   And was she telling you something which indicated that  31 the claim as made in October of 1984 was excessive?  32 A   I don't recall that she said anything like that.  33 Q   I am not suggesting she said anything like that, I am  34 asking you if -- wasn't that information which  35 indicated to you that the claim, as made in October,  36 1984, was excessive?  I am talking now about the  37 northern boundary.  38 A   I wouldn't use those words.  I was seeking a --  39 whether there was further detail about those areas, we  40 had -- we had a map that we had used for a number of  41 years that was based on a certain amount of  42 information but at that point I was seeking further  43 detail.  And Martha Brown indicated that at the time.  44 Q   She is a very high ranking chief?  45 A   She was.  46 Q   Her -- she is one, she was one of the plaintiffs,  47 Kliiyem lax haa? 3465  N. Sterritt (For Plaintiffs)  Cross-exam by Mr. Goldie  1  A  2  Q  3  4  A  5  Q  6  7  A  8  Q  9   :  MR. RUSH:  10  MR. GOLDIE  11  12  13  14  A  15  Q  16  A  17  Q  18  i  19  A  20  Q  21  22  A  23  24  25  Q  26  27  A  28  29  Q  30  i  31  32  A  33  Q  34  A  35  Q  36  37  A  38  39  40  41  42  Q  1  43  44  45  46  A  47  Yes.  You say "we had a map we had used for many years",  what are you referring to, please?  Yes.  I am referring to the map of 1977.  That's the one that was presented to the federal  government?  Yes.  Now, in this book, there is a map, which --  Which book are you talking about?  :  The book dated April the 20th, 1987 entitled —  well, one title is Territory of Goohlaht, and then  under another tab there is Territory of Geel.  Now, is  that a map on which you have entered some features?  Yes, it is .  That's the -- the printing is in your hand, is it?  Yes, it is .  And that purports to be the northern territory of  Geel?  Yes, it is.  That, of course, is after the boundary was redefined  with the Tahltans, is it not, that map?  This map or this territory, as it's shown, was based  on the work that I did over the winter of 1987,  starting in December of 1986.  Yes, what I am saying is that it is subsequent to the  redefinition of the boundary?  It's part of the redefinition.  I don't get your  point.  I am looking -- I am going to ask you, is there any  map which shows Geel's territory prior to the  redefinition of the northern boundary?  There is the map that you see -- you see that.  Exhibit 102?  Yes.  That's a draft map.  That was your understanding of Geel's northern  territory in October of 1985?  No.  This is a map that, a draft map that Marvin  prepared, he was using the same base that he had used  all along, and in December of 1986 I sat down and  began to do a review of all the material that I had  and of the external territories.  My question to you is:  Prior to the redefinition of  the boundary, which followed the work you commenced in  December of 1986, your understanding of the northern  territory of Geel is found as outlined on Exhibit 102?  No, I had information at that time that I had received  from my uncle, that I received from Martha, that I had 8466  N. Sterritt (For Plaintiffs)  Cross-exam by Mr. Goldie  1 received from Martha Himadim, Martha Brown, as  2 distinct from Martha Himadim, that indicated that the  3 boundary was not as far up the Skeena as we had  4 thought and that simply hadn't found its way on to the  5 maps.  6 Q   All right.  Now, the -- you will recall that on  7 Exhibit 10, that is to say Exhibit 731, you also  8 outlined your understanding of the Carrier-Sekani  9 overlap, as it was at that time, at that time, the  10 time of your examination for discovery, do you recall  11 that?  12 A   Yes.  13 MR. RUSH:  If my friend is moving on to to a new subject or if  14 he isn't the map that was shown to Mr. Sterritt is  15 entitled "Territory of Geel, Xsi Miinanhlgii"   and  16 stamped "draft copy".  17 THE COURT:  Thank you. Is that book —  18 MR. GOLDIE:  It's not an exhibit.  I think I probably better —  19 I should say this, that the interview with Martha  20 Brown to which reference was made, is now under tab 5  21 in Exhibit 721.  22 THE COURT:  Tab 5 in the book of documents?  23 MR. GOLDIE:  Yes, that reminds me —  24 THE COURT:  I don't think that's what tab 5 is in this book.  25 MR. GOLDIE:  721, my lord.  2 6 THE COURT:  Maybe it's back here.  27 MR. GOLDIE:  721 is the collection of notes that the plaintiff  28 has tendered.  29 THE COURT:  I am just mystified by your reference to tab 5, Mr.  30 Goldie.  31 THE REGISTRAR:  This is 721, my lord.  32 THE COURT:  All right.  33 MR. GOLDIE:  Well, that reminds me, my lord, that the -- does  34 your lordship have 721 tab 5?  35 THE COURT:  Yes, I do now.  36 MR. GOLDIE:  The fourth page in is the note of an interview with  37 Martha Brown on November 30th, 1984.  38 Q   Mr. Sterritt, I want to put before you the note of the  39 interview in 721, and draw your attention to the fact  40 that what was given us in April of 1987 appears to be  41 an edited version, to assist you in that regard -- I  42 am sorry, what is in Exhibit 721 is edited.  For  43 instance, I refer you to page 3 in the document that  44 was given us in 1987, April, and I draw your attention  45 to the portion which reads "M. B. went up with Walter  46 Geel.  They went up because he wanted to make a totem  47 pole." 8467  N. Sterritt (For Plaintiffs)  Cross-exam by Mr. Goldie  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  MR.  We were unable to find that in 721, can you tell us  why one was taken out and the other was left in?  MR. RUSH:  My lord, he can't tell you that but I can.  In  reviewing those notes, what has clearly happened is  that when the notes were pulled through on the feeder  for the photocopier and in fact pulled in several  pages at one time and so it looks like some of the  pages are spliced and I just, after the questions of  some of these notes not having been included as they  should have been, I have been reviewing all of the  notes and trying to determine exactly what was wrong  and in both pages, the second page and the third page,  there are in fact three pages all compressed into one.  So that's the explanation.  COURT:  That's in the document book that Mr. Goldie is  working from?  RUSH:  Yes, the document book in 721 is -- contains pages  which have been collapsed together, we have got half  of one and half of another.  I have been reviewing  those and have determined that those two pages  contain -- whereas the whole entry should contain  seven, I think it has five or something like that.  GOLDIE:  Well, are there -- I assume my friend will inform  me of any other documents like that.  RUSH:  Well, I am trying review all of them.  It takes a  comparison one by one by myself.  COURT:  Yes.  The exhibit, 721, tab 5, doesn't appear to  have any photographic compression?  GOLDIE:  It's the one that does.  721 does not include all  of the material that is in the book that we were given  in April.  COURT:  I am sorry, I spoke too quickly, because the 5th  page does show a line.  KOENIGSBERG:  It's the fourth page in my book is headed  seven and the next page is headed eight but there are  only three pages.  COURT:  I understand.  All right.  GOLDIE:  The -- now at the time, of course my lord, when we  received, when we received the material in the book I  have been showing to the witness, we did not have any  of these other notes.  They started coming prior to  the conclusion of Mr. Sterritt's discovery, and of  course they have been coming in in batches since then.  I was going to to say, my lord, I should tender the  documents to which I have referred as separate  exhibits.  The first, my lord, would be Mr.  Blackwater's telephone interview of the 12th of  MR.  MR.  THE  MR.  THE  MS.  THE  MR. 8468  N. Sterritt (For Plaintiffs)  Cross-exam by Mr. Goldie  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  January, 1987, that consists of one page, Martha  Brown's interview of November 30th, 1984,  THE COURT:  The date?  MR. GOLDIE:  November 30th, 1984.  And that consists of eight  pages.  And the map which my friend, Mr. Rush, has  identified, which does not appear to be dated but  which the witness has stated is subsequent to the  redefinition or alteration of the northern boundary.  I would ask that the Blackwater documents be marked  Exhibit 73 —  THE REGISTRAR:  736 would be the next exhibit.  MR. GOLDIE:  736.  The Martha Brown document be 737, and the map  be 738.  My lord, I don't have any copies of those and I  will have those made over the --  (EXHIBIT 736: INTERVIEW BY PHONE WITH WALTER  BLACKWATER BY N. STERRITT)  THE  MR.  MR.  THE  MR.  THE  MR.  (EXHIBIT 737:  1984)  NOTES WITH MARTHA BROWN, NOVEMBER 30,  (EXHIBIT 738: MAP - NORTHERN TERRITORY OF GEEL -  PRINTING BY N. STERRITT, UN-DATED)  COURT:  Any objection, Mr. Rush?  RUSH:  None.  GOLDIE:  Q   Now, I am turning to the Carrier-Sekani overlap and  you will recall that you outlined what you described  to be the Carrier-Sekani overlap on Exhibit 731 or  Exhibit 10, you recall that, do you?  A   Yes, I do.  COURT:  I am sorry, Exhibit 731?  GOLDIE:  Yes, that's the map that was attached to the  original statement of claim, it was before the witness  on his examination for discovery, and it was on that  that he marked certain outlines.  Your lordship may  recall the outline of the northern boundary change.  And for your lordship's assistance, the boundary  change was marked by the figure 3 on Exhibit 10 or  Exhibit 731.  COURT:  That was Exhibit 10 on the discovery?  GOLDIE:  Yes, Exhibit 10 on the discovery.  And I am not  going to make further reference to that.  Q   And there were, at the time of your discovery, namely, 8469  N. Sterritt (For Plaintiffs)  Cross-exam by Mr. Goldie  1 in March of 1987, there were differences to be  2 resolved between the Carrier-Sekani and the Gitksan  3 and Wet'suwet'en?  4 A   There were discussions to be held, yes.  5 Q   Well, when I say differences to be resolved, I mean  6 there was an acknowledged overlap and that is what I  7 mean by differences?  8 A  Well, I never said that there was an overlap.  I  9 believe somewhere, at some point, I informed you that  10 I did not believe there to be an overlap, that there  11 was further work that had to be done by the  12 Carrier-Sekani themselves in relation to genealogies  13 and that, with that work, it would demonstrate that  14 there is no overlap.  15 Q   Well, that was because, in your opinion, the work that  16 you had done would support, in your opinion, the  17 correctness of the line as you understood it at that  18 time?  19 A   No, the hereditary chiefs themselves were stating that  20 there was no overlap, that they owned those  21 territories.  22 Q   The -- but there were -- it was known at that time, in  23 March of 1987, that there was a necessity, both for  24 further work to be done on the part of the Gitksan-  25 Wet'suwet'en, and on the part of the Carrier-Sekani  2 6 and that it was known there would have to be meetings,  27 further meetings?  28 A   The Gitksan and Wet'suwet'en stood ready at any time  29 to meet with any neighbour, if there was an issue to  30 be discussed, and that was something that the  31 hereditary chiefs were prepared to do and that I as  32 president was prepared to do at any given time and was  33 a process that we simply were prepared to do.  We were  34 prepared to meet with our neighbours at any time on  35 these issues.  36 Q   I understand that, Mr. Sterritt.  And in fact you have  37 met with the Carrier-Sekani, on that basis, how many  38 times since March of 1987?  39 A   Since March of '87?  40 Q   Yes.  41 A   Once.  42 Q   Well, that was -- and prior to that you had met in  43 April of 1986?  44 A   Yes, there was a meeting in April of '86.  There was a  45 meeting in, I think, September of '86 as well.  46 Q   I wasn't aware of that but the meeting in April of  47 1986 has been referred to as the All Clans Feast of 8470  N. Sterritt (For Plaintiffs)  Cross-exam by Mr. Goldie  1 Moricetown?  2 A   Yes, that was to deal with Wet'suwet'en territories.  3 Q   And there was a map put up on the wall which has now  4 been produced and marked Exhibit 101 here, which is a  5 map drawn or prepared by Marvin George, which  6 indicated the extent of the land claimed by the  7 Wet'suwet'en as -- not the Wet'suwet'en, by the  8 Carrier-Sekani, as it was then understood by the  9 Gitksan and Wet'suwet'en?  10 A   Yes, there was a map at that meeting.  11 Q   Yes.  And the word overlap was used at that meeting on  12 a number of occasions, wasn't it?  13 A   It may have been, yes.  14 Q   You were there, weren't you?  15 A   Yes.  16 Q   Have you not read the transcript of that meeting?  17 A   Not for a long time, no.  18 Q   Is it your evidence today that the overlap, using that  19 word as it was used at that All Clans Feast, has been  20 resolved?  21 A   Can you repeat the whole question again?  22 Q   Is it your evidence today that the overlap issue as  23 between the Gitksan Wet'suwet'en and the  24 Carrier-Sekani has been resolved?  25 A  Are you referring to the April, '86 meeting.  26 Q   No, I am sorry.  I confused you.  I said I am using  27 the word overlap in the same sense as it was used at  28 that meeting, but now put that to one side, and simply  29 concentrate on this question:  Is it your evidence  30 today that the overlap issue as between the Carrier-  31 Sekani and the Gitksan-Wet'suwet'en, has been  32 resolved?  33 A   The -- subsequent to the April of '86 meeting, the  34 Carrier-Sekani people moved away from that line that  35 they had had in their earlier map, which goes back to  36 the early '80s, they moved away from that considerably  37 and almost entirely eliminated the areas that they  38 were claiming in Wet'suwet'en territories.  There was  39 a very -- I don't know to what extent they have done  40 work in the -- along the southern boundary but the  41 last that I know is that there was very little, if  42 anything, along the southern boundary, to my  43 knowledge, little if anything along the eastern  44 Wet'suwet'en boundary, and in the -- in terms of  45 subsequent work, there was -- the extent of what I  46 understand that the Carrier-Sekani may be claiming  47 today, would be a line from approximately north of -- 8471  N. Sterritt (For Plaintiffs)  Cross-exam by Mr. Goldie  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  A  THE COURT  A  THE COURT  A  from east of Horetsky, actually along the height of  land east of the Nilkitkwa River, that's Xsi Yaga  Mahlit on our map.  In fact it's right in the area we  landed.  It's where we first landed at Horetsky. It's  right there.  :  We didn't land at Horetsky?  No, we didn't.  The mountain we landed on is the area  approximately where the line would go north from  there.  :  What was the name of that mountain again?  That was Kotsin Mountain.  Let me look.  :  Yes, that is it.  That's it, K-O-T-S-I-N.  From there, the line goes  slightly east and north to the west end of Thutade  Lake, about like so.  But there was nothing on any of  the trips that we took into the area with Carrier-  Sekani persons and our hereditary chiefs that  indicated that to us, that that was not Gitksan  territory.  For example, the names in the area east of  there are all Gitksan names.  The people who are  members of the Carrier-Sekani Tribal Council, who  still maintain that they have an interest in that  area, are in fact Gitksan persons' Gitksan names, but  living at at Takla Lake.  Similarly, at Bear Lake,  the -- at a meeting at Moose Valley in September or  October of 1986, before we left that meeting the  members of the Carrier-Sekani said that if Thomas Jack  and Mary Jack and that family, wished to be involved  in this court case, then they would -- then it was up  to them, and in fact they are members of the House of  Nii Kyap, they own the territories around Bear Lake on  both sides, and then the area that remained was the --  as far as we are concerned then is the area from just  north of Bear Lake into this area and the people who  are in that area are members of the House of Nii Kyap.  MR. GOLDIE:  Q   Well, Mr  Sterritt, the question I put to you was:  Is  it your evidence today that the differences have been  resolved and your answer is no, and you have just  described the presently outstanding differences as you  understand them?  A   I shouldn't say no.  I mean, there is -- the way I see  it, there is still work that they may have to do but  the Gitksan and Wet'suwet'en have done their homework  and have set a very high standard for themselves and  meet that standard.  Q   Well, let me put it this way:  The outline of the 8472  N. Sterritt (For Plaintiffs)  Cross-exam by Mr. Goldie  1 claim made by the plaintiffs in this case, as depicted  2 on overlay map 9-A, is not one that has been agreed to  3 by the Carrier-Sekani at this point?  4 A  Well, not to my knowledge.  They -- and to what extent  5 they might disagree, I don't know.  I have just gone  6 through and described where matters were as of about a  7 year ago, and also point out that, through  8 genealogies, we have determined that the people who  9 are claiming those areas are in those areas.  10 Q   Yes.  Now, with —  11 A   The complication that arises is that there are Gitksan  12 persons who live at Takla Lake and at Fort St. James,  13 who I didn't know whether they consider themselves  14 members of the Carrier-Sekani Tribal Council or  15 whatever, but they are in that area and that's where  16 the complication comes in.  17 Q   I appreciate the evidence that you have given but I --  18 you will recall that you stated that the Tahltan had,  19 as far as you were aware, agreed to that northern  20 boundary.  My simple question is:  Have the  21 Carrier-Sekani agreed with the eastern boundary and  22 your evidence is not to your knowledge?  23 A   No, you're being too general there.  With the  24 exception of the -- well, if you go by the original  25 map that was issued by the Carrier-Sekani Tribal  26 Council, just about all of that has been removed.  27 There are a couple of areas that remain, and in terms  28 of the Wet'suwet'en little, if any, and as I  29 understood it, the Carrier-Sekani were going to do  30 further research.  I don't know what they have done or  31 where they have gotten to on that at this point, but  32 in terms of what's -- what remains, there is a, as I  33 know it now, there is -- there may be a smaller area  34 in the northeast.  35 Q   Now, the next people that we discussed were the  36 Council of Tsimshian Nations, when I say when we  37 discussed, I am talking about your examination for  38 discovery.  What I will do is read to you some of your  39 answers on the examination and ask if you agree with  40 them or if you wish to amend them in any way.  Volume  41 three, 339, questions 1570 to 71:  42  43 "Q  Let us come around, who is next?  44 A   The next group we would come to would be the  45 council of Tsimshian Nations.  46 Q   Yes?  47 A   They are based in Kitselas and Kitsumkalum." 8473  N. Sterritt (For Plaintiffs)  Cross-exam by Mr. Goldie  1 You were asked those questions and you gave those  2 answers?  3 A   Yes.  4 Q   And they are true?  5 A   Yes.  6 Q   1597 to 1582:  7  8 "Q   I am instructed the land to the north and  9 northwest of Sand Lake is within the boundaries  10 of a trapline which is registered in the name of  11 William Bolton.  Are you aware of that?  12 A   That may be true.  William Bolton may have a  13 trapline in that area.  I couldn't tell you that,  14 but the  hereditary lands that belong to the  15 House of Tenimgyet are within the boundaries of  16 that area and that's what that map reflects.  17 Q   Mr. Bolton, is he either a Gitksan or  18 Wet'suwet'en, to your knowledge?  19 A  Mr. Bolton is, to my knowledge, is from  20 Kitsumkalum.  21 Q   So Tsimshian?  22 A   Tsimshian.  23 Q   Is it not so that the land on the north shore of  24 Sand Lake is within the territory claimed by the  25 people of Kitsumkalum?  26 A   The people of Kitsumkalum may have included that  27 in their territory but based on the work that I  28 have done now the information of the hereditary  29 chiefs is accurate that it is Gitksan territory  30 and that it has been for hundreds of years.  And  31 also based on my work there is information from  32 the elders of the Kitsumkalum people that the  33 boundary of the Xsii 'it River is the limit of  34 the Kitsumkalum people, and I think, once again,  35 as I mentioned before, it is very important to do  36 genealogical research; very important to get out  37 on the ground.  It is very important to know your  38 histories, and there is no question that the  39 Tenimgyet, that is the territory of the House of  4 0 Tenimgyet."  41 You were asked those questions and gave those  42 answers?  43 A   Yes.  44 Q   1585 to 1587:  45  46 "Q   Can you locate on this map, Exhibit 10, the area  47 that we are talking about? 8474  N. Sterritt (For Plaintiffs)  Cross-exam by Mr. Goldie  1 A  We are talking about Dam Gitax 'ol, Sand Lake.  2 Q   Yes.  3 A   I guess we use number 4.  4 Q   Yes.  4."  5 And the exhibit was then marked accordingly.  6 Question -- were you asked those questions, and did  7 you give those answers?  8 A   Yes, I do.  9 Q   And they are true?  10 A   Yes.  11 Q   Question 1590 to 1599:  12  13 Q   Now, you have marked a particular point on the  14 Exhibit 10 as 4, which is Sand Lake.  Can you  15 give me any aerial sense of the overlap which you  16 understood the people of Kitsumkalum made and  17 which you say is now resolved?  18 MR. GRANT: Just for the record before he does that, Mr.  19 Sterritt as marked the number 4 in the left  2 0 margin.  21 A   Okay.  22 MR. GRANT:  And then he has crossed out a line and has made  23 another line with an arrow.  24 MR. GOLDIE:  Yes.  25 MR. GRANT: Just so the record shows that there was a  26 correction made by Mr. Sterritt.  27 MR. GOLDIE:  Yes.  28 A   To be -- the fact is I have only just received an  29 indication in rough from Kitsumkalum what it is  30 they are claiming and it is very difficult to  31 determine from this map just how far north in  32 that particular valley, the valley of Lum An  33 Tsihl Gwellii that they are going and I don't  34 know how far they go.  I don't know what their  35 claim is.  36 MR. GRANT:  Just for the record, I understand that a map of  37 the Kitsumkalum claim with respect to this area  38 has been produced to counsel for the Province of  39 British Columbia and I think that if you want to  40 question Mr. Sterritt on it you should at least  41 let him, that you should allow him to examine  42 that map.  43 MR. GOLDIE:  Well, I am just asking him what he  44 understands.  I am not putting any maps to him.  45 A  What I understand that generally they are  46 claiming --"  47 8475  N. Sterritt (For Plaintiffs)  Cross-exam by Mr. Goldie  1 Then Mr. Grant intervened.  2  3 "Just a moment.  With respect to what Mr.  4 Sterritt understands by the overlap claims of any  5 other group -- of course Mr. Sterritt is not here  6 representing those groups  7 MR. GOLDIE:  That is clearly stated.  8 MR. GRANT:  And also his opinion is only his opinion about  9 that, and I question the weight of it.  I have  10 allowed you to go on extensively about it, but  11 the weight of his opinion as to what their claim  12 is and where that overlap is, is a matter of an  13 opinion that may be modified by material provided  14 by any of these other groups to counsel for the  15 Province.  Thusfar we have not received from  16 counsel for the Province any Rules, answers to  17 the Rules under the examinations and most, if not  18 all, cases have not provided --  19 MR. GOLDIE:  There have been no Rule 28's, Mr. Grant.  20 MR. GRANT:  -- any answers to questions --  21 MR. GOLDIE: There have been no Rule 28 examinations.  22 MR. GRANT: Tendered by the Province to these third parties  23 who are ordered to be examined under Rule 28."  24  25 And there is a continuing exchange.  And I will skip  26 down now to page 345:  27 MR. GOLDIE: I am not putting the answers of third parties  2 8 to him, I am simply going -- do you have here the  29 affidavit of Mr. Ryan which was sworn on the Rule  30 28 application?"  31  32 If I may intervene there, that was Mr. Ryan of the  33 plaintiffs, whose affidavit was filed when the  34 Province sought orders under Rule 28.  35  36  37 "Because I have page 3 of that affidavit and it  38 states and I read: 'I have been informed by Neil  39 Sterritt, the president of the Gitksan-  40 Wet'suwet'en Tribal Council, that he has had  41 informal discussions with Alex Bolton of the  42 Kitsumkalum Band that the western boundary is  43 claimed by the Gitksan plaintiffs.  A further  44 meeting was scheduled between representatives of  45 the plaintiff and representatives of the Council  46 of Tsimshian Nations on June 17, 1986, to  47 exchange technical information and evidence with 8476  N. Sterritt (For Plaintiffs)  Cross-exam by Mr. Goldie  1 respect to the proper border.' Did you so inform  2 Mr. Ryan in those words?  3 A   Yes, I did.  4 Q   Now, could you tell me, please, what technical  5 information and evidence was exchanged?  6 A   Yes, I can.  7 Q   Please do so?  8 A  We went to a meeting and we took a map and we  9 took some anthropological information and we  10 provided that information to the Kitsumkalum  11 people --  pardon me, the Kitselas and  12 Kitsumkalum people, and requested certain  13 information and we received none and they  14 received ours.  15 Q   You received nothing from them?  16 A   No.  17 Q   Were you given any indication at that meeting  18 about of what their claim was?  19 A  We have a very general idea about, about the  20 extent of it and that's the best that I can do.  21 Q   And could you do the best for me by depicting it  22 on the map, Exhibit 10?"  23  24 Mr.  Grant intervened.  And I skip down to the  25 answer.  26  27 "Well, all I can say, some portion of the Lum An  28 Tsihl Gwellii, which is the Cedar River, I don't  2 9 know how much they say they claim and Lum An  30 Tsihl Gwellii, this river here (indicating).  31 Q   Could you, just if you do not mind, put another 4  32 at the end of Cedar River so whoever reads the  33 transcript can understand where your pen was  34 hovering over when you said 'along the Cedar  35 River'.  36 A  Well, I will put a 5 by the name Cedar River.  37 Q   All right.  That is fine.  38 A   5 (indicating).  39 Q   Thank you.  And somewhere in there, indefinite as  40 it may be, you understand they make some sort of  41 claim?  42 A   Yes.  43 Q   Is it your understanding that part of that claim  44 is based upon the use by the people of  45 Kitsumkalum of that territory for hunting,  46 fishing and trapping?  47 A   I don't know what the basis is." 8477  N. Sterritt (For Plaintiffs)  Cross-exam by Mr. Goldie  1 Q   Do you recall being asked those questions and did you  2 give those answers?  3 A   Yes, I did.  4 Q   And they are true.  5 THE COURT:  Could we take the morning adjournment now?  6 MR. GOLDIE:  Yes.  7  8  9  10  11 I hereby certify the foregoing to be  12 a true and accurate transcript of the  13 proceedings herein to the best of my  14 skill and ability.  15  16  17  18  19  20 Wilf Roy  21 Official Reporter  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 MORNING ADJOURNMENT) 8478  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1  2 THE COURT:  Mr. Goldie.  3 MR. GOLDIE:  Thank you, my lord.  4  5 CROSS-EXAMINATION BY MR. GOLDIE, (Continued):  6 Q   Question 1617 to 1618 in Volume 3:  7  8 "Q Is it right to put it this way then, that  9 the area that you have identified on Exhibit  10 '10' is an area that has been the  11 subject-matter of discussions with the  12 Kitsumkalem people; those discussions have  13 not been concluded, that as far as you are  14 concerned the area that is within the  15 boundary line shown in Exhibit '10' is  16 properly the area of the House of the  17 Gitksan, but the matter is still open as  18 between the Gitksan and the Kitsumkalem; is  19 that a fair way of putting it?  20 MR. GRANT:  I believe he described that there were  21 some changes to Exhibit '10.'.  22 MR. GOLDIE:  I understood him to say that they  23 were very minor changes.  24 A Yes, there is minor changes in that area.  25 Everything, what you have just said, the  26 very last part I think I would disagree  27 with.  I would have to -- actually I would  28 like to hear it again.  29 MR. GRANT:  Read the question back, please."  30  31 And the question was then read back.  32  33 "A Mr. Goldie, we have, for a number of years  34 now, have made every effort to meet with  35 other tribal groups and to continue to try  36 and do that.  I have done a tremendous  37 amount of work in this area (indicating)  38 with the hereditary chiefs and feel quite  39 confident that is Gitksan and would be happy  40 me to meet with them and discuss it further  41 and hear what they have to say and to, you  42 know, go into this in great length, but the  43 evidence, in my opinion, is quite strong.  44 It is Gitksan territory under the house of  45 Tenimgyet.  46 MR. GOLDIE:  47 Q That is Arthur Matthews? 8479  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 A    Arthur Matthews, Junior."  2  3 You were asked those questions and you gave those  4 answers?  5 A   Yes, I did.  6 Q   And the answers are true?  The answers are true?  7 A   There was a complicated answer back in there.  Yes,  8 they were -- it was true at the time, yes.  9 Q   Are there any qualifications you wish to make at the  10 present time and if so I'll put the answer in front of  11 you?  12 A   Yes.  I'd just like to look at that one answer.  It  13 was complicated.  Yes.  That's fine.  14 Q   So the answers are true then and true now, is that  15 correct?  16 A   Yes.  17 Q   Question 1619 to 1620:  18  19 "Q     Were there any notes made of the discussions  20 that are described in Mr. Ryan's affidavit?  21 MR. GRANT:  The ones before the affidavit was  22 sworn?  23 MR. GOLDIE:  And the one that was scheduled in  24 June that he describes, and then the ones  25 that Mr. Sterritt has talked about since  26 then?  27 (DOCUMENT SHOWN TO WITNESS)  2 8 A     I don't know about any notes that might have  2 9 been made at the meeting that Mr. Ryan  30 attended -- oh, is he not referring to that  31 here -- okay.  32 Q     You had informal discussions with Alex  33 Bolton; did you keep any notes of that  34 meeting?  35 A     I would have to check.  I am not sure  36 whether I did or not."  37  38 You were asked those questions and you gave those  39 answers?  40 A   Yes.  41 Q   And they are true?  42 A   Yes.  43 Q   And have you made a check to determine whether there  44 are any notes of your meetings with Mr. Bolton?  45 A   To the best of my recollection the notes appear in one  46 of my field books.  They are very brief, but there are  47 some notes in my field book. 8480  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 Q   Will they be identified by reference to Mr. Bolton?  2 A   Yes.  I think Alex Bolton's name appears on the top of  3 the page.  4 Q   And so far as you are aware those are the only notes  5 of discussion you have had with Mr. Bolton?  6 A   Yes.  7 Q   The burden -- or it is a matter of concern, is it not,  8 that the council of Tsimshian people feel they are  9 unprepared to discuss their boundary with you?  10 A   I don't know on what basis or at what state of  11 preparation they are.  They -- at one of the meetings  12 they did not have the money that they -- they did not  13 have a budget at that point to do research.  And they  14 were going to try and get it.  What we offered was our  15 facilities, our library.  What they wanted to do was  16 to go to Ottawa and research there what information  17 there might be about the Kitselas or the Kitsumkalum  18 territories.  And I think what they -- you might have  19 been thinking of is the Barbeau Beynon.  What we did  20 was we offered to open our library to them so that  21 they could have access to all of that information that  22 we had which as far as I know was pretty comprehensive  23 with regard to Barbeau and Beynon on their  24 territories.  25 Q   Well —  26 A  At one of the sessions I took some material to them  27 and asked them -- they had said -- they had indicated  28 they had information and I asked them for that  29 material at that meeting in addition to anything else.  30 And they did not indicate whether they would give it  31 to the -- to us or not.  To this day I have not  32 received anything and I think I made a request later  33 on for information.  34 Q   You made a request for information of them?  35 A   Yes.  36 Q   What, by -- in writing or orally?  37 A   I don't know whether it was at that meeting or whether  38 it was in writing later.  I don't recall.  39 Q   Well, Mr. Sterritt, we asked in a Notice to Admit that  40 was given in June, we asked the plaintiffs to admit a  41 letter from the council of Tsimshian nations to the  42 minister, Department of Indian Affairs, Ottawa, dated  43 November 24, 1986, in which request is made for money  44 and assistance.  I don't believe that document was  45 admitted.  I am not sure why not, but in any event it  46 wasn't.  Would it be correct to say that you were  47 aware in November of 1986 that the Tsimshian, the 8481  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR.  A  A  Q  A  Q  A  Q  RUSH:  THE COURT  MR. RUSH:  MR.  THE  MR.  THE  MR.  council of Tsimshian nations was seeking assistance  from the Federal Government to allow it to embark upon  a research and documentation program?  I don't know at what point I was aware of that,  whether it was earlier than that or about that time.  I can't recall.  Did they not tell you that their information at that  time was insufficiently specific and rich enough in  detail to support their claim as against the Gitksan  on an equitable basis?  Oh, they never indicated that to us.  They -- at a  meeting they talked about those areas.  They did not  get into specifics.  They -- I think they indicated  they had to do work, but they never -- I don't recall  at any time them using those words.  Well, didn't they indicate to you that they considered  themselves to be at a disadvantage?  I don't know.  I don't think they did indicate that in  a meeting.  Well, wasn't that --  But -- but what -- but we were aware that there was  information and we offered our library to them.  We  said they could come up and spend as long as they  wanted in our facilities, that if it was a problem of  getting to Ottawa that they could come to Hazelton and  have free access to our files.  And that was for the purpose of overcoming the  disadvantage which they felt themselves to be at?  Well, how can he state the purpose, my lord?  I mean  he has just said that he didn't say anything to that  effect.  He is asking Mr. Sterritt to project into the  minds of --  : He has said that they have indicated they didn't  have proper funding, which is some indication of a  disadvantage, is it not?  Well, that might be a conclusion your lordship would  draw, my lord, but I mean the question is aimed at  eliciting from Mr. Sterritt what was in the mind of  other people at the meeting.  No.  From what they said.  I beg your pardon?  From what they said only.  GOLDIE:  COURT:  GOLDIE:  COURT:  GOLDIE:  Q   I am putting it to the witness that the purpose of the  offer that was made to use the library facilities was  in your mind to help them overcome any difficulty they 8482  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 might have with respect to lack of information?  2 A   I don't want to use those words.  As I recall we had  3 met once, Don had met with them once.  Then I had a  4 session with them.  There was some difficulty during  5 the meeting in terms of an information exchange and  6 they did talk about wanting to do some research and  7 that they would have to go to Ottawa to do that.  And  8 we pointed out that it was important to us that we  9 work on this issue.  One of the things that we were  10 encountering is that meetings were being set up and  11 they would cancel them.  But it was important that --  12 that we do meet and that we do discuss it and that  13 information -- that if they needed information and  14 they couldn't get to Ottawa, that they would be  15 welcome to come to our library and use it.  16 Q   Well, my suggestion to you was that the purpose for --  17 the reason you made this offer was to get them up to a  18 level where they could start talking to you about  19 details?  20 A   I don't recall whether that was part of it.  They  21 had -- they had -- we had a copy of their map.  It  22 went over some of our areas.  We didn't know what the  23 basis for it was and they said that those were areas  24 that were of concern to them.  We also provided them  25 with some of the information of the hereditary chiefs  26 in addition to what -- to offering them our library.  27 And we wanted to get discussions underway.  28 Q   Yes.  Now, was a Mr. Mel Bevan, B-e-v-a-n, present at  29 any of your meetings?  30 A   He was present at -- yes, he was present at one or two  31 of them.  I don't recall how many.  32 Q   And he was the president of the council of Tsimshian  33 nations in 1986, was he?  34 A   Yes, I think he was.  35 Q   Now, you say we've made a -- we invited them to use  36 our library.  And that would have in your view made it  37 unnecessary for them to go to Ottawa?  38 A   No.  They may still have felt that they wanted to go  39 to Ottawa, but if they -- if what they were concerned  40 about was the Barbeau Beynon files, if that's what  41 they wanted to access, then we had them.  I don't know  42 what other reasons they might have wanted to go to  43 Ottawa for.  44 Q   But you also have there a very large number of copies  45 of the archive documents, do you not?  46 A  Where?  47 Q   In your library at Hazelton? 8483  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 A  Well, which archive documents?  2 Q   RG10?  3 A   I don't know that number.  4 Q   You don't know that?  5 A   No.  6 Q   Well, I have made a request, my lord, that the --  7 there is an index to that library, that it be  8 produced.  My instructions are that there are a very  9 large number of documents that have been copied from  10 files in Ottawa.  And I'll put the question to you  11 once more, Mr. Sterritt.  Did you not inform the  12 representatives of the council of Tsimshian nations  13 that the library at Hazelton contained not only  14 Barbeau Beynon material but a great deal of archival  15 material, however you might characterize that?  16 A   I don't recall that.  What I was referring to was the  17 Barbeau Beynon and perhaps the Wilson Duff material.  18 He also -- I don't know whether he actually did work  19 with the Kitselas and Kitsumkalum, but he reviewed and  20 had notes of the Barbeau Beynon material and so one  21 way or the other there would have been material  22 appearing in both.  23 Q   Now, you presented him with some material, did you  24 not?  25 A   Yes, I did.  26 Q   I refer to question 1628 to 1630, my lord:  27  28 "Q     Excuse me, before you go on, could you  29 summarize for me the nature of the evidence  30 that you presented to Mr. Bolton that  31 satisfied you that this was Gitksan  32 territory, just, without going into detail,  33 what was the nature of the evidence that Mr.  34 Ryan referred to in his affidavit?  35 A     The, the material that I provided to the  36 Kitsumkalum was part of the material that  37 satisfied me about who the area belonged to.  38 Q     And what satisfied you?  39 A     Well, you asked me about the material that I  4 0 provided to them, and that's what I am  41 referring to.  42 Q     Yes.  43 A    And that material is from the Barbeau Beynon  44 records of 1920."  45  46 You gave those answers and those answers -- you were  47 asked those questions and you gave those answers and 8484  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 the answers are true?  2 A   Yes.  3 Q   Yes.  And you were relying upon the Barbeau Beynon  4 material that you had identified and which you gave to  5 them as supporting your assertion that the property --  6 the territory was part of the Gitksan territory?  7 A   That's partly true.  The -- the hereditary chiefs had  8 defined their territories and had provided the detail  9 of creeks, lakes and mountains within those  10 territories.  They were the ones who provided the bulk  11 of the information.  But I also because of this --  12 because the Kitsumkalum were -- and Kitselas were --  13 when they had submitted that map and also indicated  14 that they had an interest in that area, then I  15 reviewed the Kitsumkalum files and the Kitselas files  16 to see what was in them and to what extent their --  17 those files came into Gitksan territories.  On that --  18 and those are the files that I handed over to the  19 Kitselas and Kitsumkalum.  20 Q   Yes.  21 A   But —  22 Q   That was the material that you referred to and the  23 answer to your -- my question, the material that you  24 provided them was from the Barbeau Beynon records of  25 1920?  26 A   Yes.  And based on the information from Kitsumkalum or  27 Kitselas and Kitsumkalum hereditary or knowledgeable  28 people from the 1920's that Barbeau had -- Barbeau and  29 Beynon had talked to.  30 Q   Yes.  Precisely.  You were relying upon Barbeau Beynon  31 to persuade them that your version of the boundary was  32 correct?  33 A   I was providing them with the information from the  34 files, if they could -- couldn't find it to do that,  35 but I was relying on the information of the hereditary  36 chiefs as to their territories.  37 Q   But you didn't supply them with that information.  You  38 supplied them with files from Barbeau Beynon, didn't  39 you?  40 A   I think that I -- I don't recall, but there was no  41 reason why I wouldn't give them the Gitksan -- the  42 information from Barbeau Beynon on the Gitksan side.  43 And that was the -- if I didn't, then the offer was  44 there for them to come and look at all of those files  45 in our library.  And there is no reason why they  46 couldn't have done that.  Mel Bevan himself is very  47 familiar with our tribal council.  He lived in our 8485  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 area for a long time.  He was the -- an administrator  2 for the tribal council in the area and he knew what  3 was in those files or if he didn't know the details,  4 but he knew that they were there, he could have come  5 and looked at them.  6 Q   And he could speak then with authority when he  7 complained to the Federal Government that the council  8 of Tsimshian nations didn't have the research and  9 documentation that would place them on an equitable  10 basis with you?  11 A  Well —  12 MR. RUSH:  There has been no evidence that he complained to the  13 Federal Government.  14 MR. GOLDIE:  Well, you know he did.  15 THE COURT:  I don't know he did.  16 MR. GOLDIE:  No.  I appreciate that, my lord.  We may have to  17 subpoena Mr. Bevan.  18 Q   My question, however, was that he would be in a  19 position to know the nature of the documentation that  20 you had, that's your evidence, isn't it?  21 A   Yes.  He would -- he knew that we had acquired the  22 Barbeau Beynon files.  23 Q   And a lot of other material, too?  24 A   I don't know what you are referring to.  25 Q   Well, a good deal more historical material?  26 A   In what kind?  27 Q   Historical.  Do you not know what I mean when I say  28 historical material?  29 A  Well, I don't know what you are referring to.  30 Q   Well, I am asking you haven't you got other historical  31 material in your library other than Barbeau Beynon?  32 A   There is a lot of material in the library.  I can't  33 tell you everything that's there.  There is --  34 Q   I am not asking you that.  35 A   -- a lot of current information and historical.  36 Q   Yes.  37 A   But I can't say what all is there.  But I know that  38 the Barbeau Beynon files are there.  39 Q   Yes.  40 A  And in terms of an advantage or disadvantage, they  41 could have had complete access to our files.  There  42 was no reason why they couldn't have gone through  43 them.  44 Q   But that's not my question, Mr. Sterritt.  From your  45 evidence you say that Mr. Bevan would have knowledge  46 of the documentation contained in the library of the  47 Gitksan-Wet'suwet'en tribal council? 8486  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1  A  2  3  Q  4  5  6  7  A  8  9  10  Q  11  A  12  Q  13  14  A  15  Q  16  A  17  18  Q  19  A  20  21  22  Q  23  A  24  25  Q  26  A  27  28  Q  29  A  30  31  32  33  Q  34  35  A  36  37  38  39  40  Q  41  42  A  43  44  Q  45  THE COURT  46  47  A  He would be aware of it.  I don't know to what extent  he would have knowledge about what was there.  All right.  But wouldn't you agree with me that that  would provide him with at least the basis of comparing  the resources of his own people with the resource  available to you?  Well, can you explain to me what the disadvantage  would be if he has access to that file, all that  material?  Well, perhaps --  There is no disadvantage.  Yes.  Well, that is based upon your conclusion that  what is in the Gitksan tribal council is complete?  No.  But we also --  No.  Isn't that correct, Mr. Sterritt?  In terms of that it was still open to the Tsimshian to  go to Ottawa if they wished.  Yes.  But in terms of -- they had -- they identified that  they had an immediate problem.  They didn't have the  money to get to Ottawa right now.  Yes.  They identified that to you, didn't they?  They said they didn't have a budget then to get to  Ottawa then and I said, "Well, in the meantime -- "  Excuse me just a moment.  I said, "In the meantime you have complete access to  our files in Hazelton."  Yes.  And that offer was open.  I think I phoned and  followed up on that.  I said, "You have access."  Where is the disadvantage?  They could still go to  Ottawa if and when they got some money.  Mr. Sterritt, you knew that they were applying to  Ottawa, didn't you?  I think it was on the radio.  I think that they  mentioned that they wanted to -- when they were  applying for money, I don't know if that was in a  specific sense or a general sense, but I think I heard  it on the radio.  Yes.  And the basis was that they considered themselves to  be at a disadvantage to you?  I didn't hear that on the radio and they never said  that in front of us.  All right.  I want to go back to your discovery now.  :  Just a minute.  Mr. Sterritt, did they ever take you  up on your offer?  No. 8487  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 THE COURT:  Thank you.  2 MR. GOLDIE:  3 Q   Page 369.  Yes.  Actually it's beginning at page 367,  4 my lord, question 1680.  5  6 "Q Now, can you indicate to me on Exhibit '10'  7 the approximate area of the Nishga claim and  8 I am going to refer you to your Document  9 Number 1858, which is a copy of something  10 entitled:  'Nishga Land Claim Area,' and  11 contains a note at the bottom:  'January  12 10th, 1983 C.T.C.'  That would be the  13 Gitksan-Carrier tribal council?  14 A Can I look at that, please.  15 Q Yes."  16  17 Question 1682:  18  19 "Q 'Yes'?  20 A Yes.  21 Q All right.  The original of that document,  22 or whatever that was copied from  23 (indicating), this being the copy that we  24 have of plaintiffs' documents 1858 was  25 received by the tribal council along with  26 the Nishga tribal council's response to the  27 Pearse Commission's final report.  Now,  28 setting that aside a minute, the Pearse  29 Commission reference, was that the first  30 time you had knowledge of the extent of the  31 Nishga land claim?  32 A One of the difficulties in, in determining  33 what the Nishga were actually saying might  34 be an overlap was sorting out which map they  35 were using."  36  37 Were you asked those questions and did you give those  38 answers?  39 A   Yes, I did.  40 Q   They are true?  41 A   Yes.  42 Q   Question 1684:  43  44 "Q Yes.  45 A Because this map was one of a number.  And,  46 in fact, the Nishga have a declaration that  47 they have produced and a number of times we 8488  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 have asked them to tell us -- or pardon  2 me -- we have sat down and analysed what it  3 is that that declaration is saying, and in  4 our opinion the declaration did not support  5 what the Nishga were saying about their  6 boundary; about where their boundary was,  7 and, in fact, one of the subsequent meetings  8 we have had with the Nishga since, let's  9 say, July of '86, they have engaged a  10 consultant who did an analysis of that and  11 determined that their interpretation of the,  12 I believe, the 1916 Declaration was not  13 right.  And that in itself resolved a large  14 part of the so-called 'overlap.'.  15 Q That was in what, the northwestern end?  16 A Beginning, beginning -- I couldn't say, I  17 don't know how far down, because I don't  18 have the map with me.  But in any event  19 approximately, beginning around, number  2 0 '6'."  21  22 Now, you were asked those questions and you gave those  23 answers?  24 A   Yes, I did.  25 Q   And the answers are true, are they?  26 A   Yes.  27 Q   And the 6 is something you placed on Exhibit 10 or  28 Exhibit 731 here?  29 A   Yes.  That's the same map we were talking about  30 before.  31 Q   Yes.  32 A   The other numbers, yes.  33 Q   Yes.  And then some questions were put and Mr. Grant  34 objected on the grounds that matters involving the  35 Kitwancool have nothing to do with this lawsuit.  And  36 then I go to page 384, which is in the next volume, my  37 lord.  Now, after a discussion relating to the nature  38 of the meetings, I -- question 1728:  39  40 "Q Yes.  41 A And then I want to explain what has happened  42 subsequent.  43 Q Yes, please do.  44 A Okay.  45 MR. GRANT:  You are referring to Exhibit '15'  46 (EXHIBIT SHOWN TO WITNESS)  47 A From a map entitled 'Nishga Land Claim Area' 8489  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 from Exhibit '15' onto Exhibit '10' I am  2 going to draw the degree of overlap between  3 those two maps, and I will begin at, just  4 south and west of Dam Gitax 'ol, which is  5 Sand Lake.  6 Q Which is already marked with a '4' on  7 Exhibit '10'.  Would you identify that  8 starting point with a numeral, and I think  9 we are probably up to about seven.  10 MR. GRANT:  For the record, he is using a pencil,  11 marking this line (indicating).  12 A I have marked it with a red -- orange pencil  13 number '7' at, just west, barely west of  14 Sand Lake and then going to the height of  15 land (indicating) just north of Sand Lake,  16 and then at that point there is no --  17 because of the scales it's difficult to get  18 it, but my understanding that basically no  19 separation between the lines in to that area  20 until we get -- basically it follows that  21 line to a point, there is a mountain just  22 south of that area, known as Tsim Sto'ot."  23  24 1731:  25  26 "Q Is there an English name for that name?  27 A The English name of that mountain would be  28 Mount Priestly."  29  30 And were you asked those questions -- well, I am sorry  31 I will ask the next one.  32  33 "Q Is it in the area of Mount Priestley, it is,  34 Mount Priestly is right in the area of the  35 second '7' that you have drawn?  36 A Yes."  37  38 And then he continues his answer:  39  40 "A And then at that point the line would, the  41 line would converge and go east along the  42 height of land and then around the drainage  43 of the Gyehl 'Din River.  44 Q And the English name for that, please?  45 A Kiteen.  46 Q Yes.  47 A And then back to the third '7' in an area 8490  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 near Xsi Anxtimiiyit."  2  3 And were you asked those questions and did you give  4 those answers?  5 A   Yes, I did.  6 MR. RUSH:  My lord, I think that the witness should have Exhibit  7 10 in front of him.  8 MR. GOLDIE:  Yes.  If that would be helpful.  It's 731 here.  9 THE REGISTRAR:  731?  10 MR. GOLDIE:  Yes.  11 Q   Now, without going into the detail of your discovery,  12 you were marking with a series of sevens in an orange  13 pencil the overlap as claimed by the Nishga, is that  14 correct?  15 A   I think that the red pencil indicated the overlap  16 as -- or pardon me, the area as it would be defined in  17 the Nishga Declaration in an interpretation of the  18 Nishga Declaration.  It goes from near Sand Lake  19 around the headwaters of the Kiteen River and then --.  20 Oh.  And then goes up north to near to south of  21 Mezziadin and then back down.  It's either -- I'd have  22 to read that again.  23 Q   Wasn't that taken from a map that you had received for  24 the Nishga called -- identified as Exhibit 15 on your  25 examination for discovery?  26 A   It may have been.  I'd like to --  27 Q   And then you got around to the Nishga Petition a  28 little later, didn't you?  29 A   But what is Exhibit 15?  30 Q   It's a map entitled "Nishga Land Claim Area."  31 A   Prepared by who?  32 Q   It's the plaintiffs' document 1858.  33 MR. RUSH:  The title is on page 377 which is in the previous  34 volume as a map of Nishga land claim area.  35 MR. GOLDIE:  Yes.  And it's plaintiffs' document 1858.  If my  36 friends have their list of documents that would give  37 the origin of it.  38 Q   Isn't this a map that you were given by the Nishga,  39 Mr. Sterritt?  40 A  Well, I want to be sure of that.  41 Q   Yes.  Well, in the plaintiffs' list of documents it's  42 dated January 10, 1983, "Nishga Land Claim Area."  And  43 you have no idea now of the origin?  44 A   No, I am not saying that.  I would like to see which  45 map that is that we were interpreting here.  46 Q   Well —  47 MR. RUSH:  There may be some. 8491  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1  MR.  GOLDI  2  MR.  RUSH:  3  MR.  GOLDI  4  Q  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  A  29  30  Q  31  A  32  Q  33  A  34  THE  COURT  35  36  37  A  38  THE  COURT  39  A  40  THE  COURT  41  A  42  THE  COURT  43  44  45  46  A  47  THE  COURT  EI:  It's referred to at page 367 and I have --  378.  I have read this:  "Q     Can you indicate to me on Exhibit '10' the  approximate area of the Nishga claim and I  am going to refer you to your Document  Number 1858, which is a copy of something  entitled:  'Nishga Land Claim Area', and  contains a note at the bottom:  'January 10,  1983 C.T.C.'  That would be the  Gitksan-Carrier tribal council?  A     Can I look at that, please?  Q     Yes."  Question 1683:  "Q     All right.  The original of that document,  or whatever that was copied from, this being  the copy that we have of plaintiffs'  document 1858 was received by the tribal  council along with the Nishga tribal  council's response to the Pearse  Commission's final report."  Isn't that the case?  Oh.  Okay.  That -- yeah.  That -- that was what we  were putting on here.  Yes.  And is indicated by the series of sevens?  Yes.  That's right.  All right.  That's right.  :  Is that a -- is that an overlap into Kitwancool  territory or is it some -- I suppose this would not be  Kitwancool?  No, this isn't.  :  This would be --  All of this and all along in this area.  :  Yes.  Down to a point about there, is.  :  Is this area between the two -- between the two  sixes a territory that we are talking about the other  day as having been deleted from one of the  territories?  That's right.  :  Yes. 8492  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 A   Yes.  2 THE COURT:  Thank you.  From whose territory was that deleted?  3 A   Yal, Y-a-1.  4 THE COURT:  Yes.  Thank you.  5 MR. GOLDIE:  6 Q   Now, I was at page -- in Volume 4, page 384 and rather  7 than reading an extensive part of the discovery, I  8 think we have it now, the sevens were the transference  9 onto Exhibit 10 of that map that the Nishga had  10 submitted to the Pearse Commission?  11 A   Yes.  12 Q   Then page 392, and my lord, this simply has to do with  13 the identification of the figure eights on Exhibit  14 731.  15 THE COURT:  All right.  16 MR. GOLDIE:  17 Q   Question 1753.  Well, I go back.  1751:  18  19 "Q The question I wanted to put to you is that  20 it is not indicated on Exhibit '10' with  21 respect to the Nishga claim in the Bowser  22 Lake area; have you sufficient knowledge of  23 that interest to indicate on Exhibit '10'  24 the extent of their claim as you now know  25 it?  26 A What I would like to do is put on this map  27 my understanding of the Nishga Petition and  28 then also, then I would like to talk to you  29 about the area that the Nishga say is theirs  30 in the northwest, and so I will do that.  I  31 will try to put on this map where the Nishga  32 go in relation to the Petition of 1913.  33 Q And do you --  34 A As they now interpret it.  35 Q Do you have a copy of the Petition of 1913  36 here?  37 A I, I am not sure whether I have or not.  38 Q I suggest that you continue to use the  39 orange pencil for Nishga."  40  41 And then Mr. Grant says:  42  43 "  I handed him a red one   44 MR. GOLDIE:  It will be identify by the '8'.  45 Q     Will there been any overlap between the  46 lines that you are about to draw and the  47 lines identified by '7' on Exhibit '10'? 8493  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 A In this case we would begin with the letter  2 '7' -- the number '7', as we did before and  3 go to -- and this is very approximate  4 because I don't have a map in front of me.  5 Q In this case I will take Mr. Grant's  6 suggestion and we will use a different -- a  7 black --  8 A That's good.  And I will do a dashed line.  9 Q All right.  10 A The Nishga Petition, as I understand, it  11 would be beginning at number '8'  12 (indicating) -- pardon me, beginning at  13 number '8', right beside number '7'  14 (indicating)  15 Q Yes.  16 A The first number '7', would follow number  17 '7' around to the second number '8'  18 (indicating)."  19  20 Perhaps your lordship might wish to see that.  21 A   The first seven is here.  22 THE COURT:  Yes.  23 A   The first eight is here.  The eight follows the seven  24 until we get to that point.  2 5    THE COURT:  Yes.  26 A  And then at that point the line departs and goes --  27 well, that's how far we are right now.  We got to  28 here.  2 9    THE COURT:  Yes, all right.  30 MR. GOLDIE:  Yes.  31 Q   The question 1758 -- answer -- question:  32  33 "Q Yes.  34 A The first number '7', would follow number  35 '7' around to the second number '8'  36 (indicating).  37 Q Yes.  38 A From that point an approximation, and this  39 could vary some, but would go northeast and  40 then would go northwest, approximately  41 (indicating).  I could be wrong about the  42 northern part, but in any event --  43 Q You are tracing the dotted line along the  44 western boundary of the Gitksan claim on  45 Exhibit '10'?  46 A (Indicating).  The Nishga Petition of 1913  47 would follow that line fairly closely except 8494  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 in the lower area near the village of  2 Kitwancool.  I don't recall where that goes  3 exactly, so I will put a question mark  4 there (indicating) and a question mark,  5 say, from in the area of the Nass River,  6 because I don't recall whether it follows  7 the boundary or goes straight across  8 (indicating).  I will put two lines there  9 (indicating)."  10  11 Now, the --  12 A   The Nass River is running down right there, under my  13 finger.  That's it.  14 THE COURT:  Yes.  15 A   Yes.  16 MR. GOLDIE:  17 Q   And the balance of your recollection of the Petition  18 is indicated by the dashed lines identified from time  19 to time with the numeral eight?  20 A   Yes.  21 Q   Now, I want to go to the next numbering, question  22 1764.  I am starting there not because the question  23 means anything, my lord, but because the answer deals  24 with the beginning of the use of the numeral nine.  25 THE COURT:  All right.  26 MR. GOLDIE:  27 Q  28  29 "Q All right.  Thank you.  30 A And in doing that they then, I guess you  31 could say leaped outside of their Nishga  32 Petition, which was something that their  33 hereditary chiefs in 1913 stood on, but they  34 leaped outside of it to say that they owned  35 land.  And I will draw that line  36 approximately, but we will start with the  37 number -- I will try and do a solid line, I  38 guess, (indicating) but with the number '9';  39 that which is on the Nass River.  40 Q Where it crosses the Gitksan boundary; is  41 that about right?  42 A Near Xsi Txemsem; the Nass River is Xsi  43 Txemsem, and Bell Irving River is Sto'ot Xsi  44 Txemsem (indicating).  In that area the  45 line would be something like so  46 (indicating), meeting farther east  47 (indicating), but I am not sure about that 8495  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 (indicating).  And I believe something like  2 so (indicating), and then that would be  3 number '8'.  4 Q     Now, you concluded --  5 A     Pardon me number '9'.  6 Q     You concluded that line by marking a '9'  7 close to the number '2', which was one of  8 the boundaries that you drew for the  9 Tahltan?  10 A     That's right."  11  12 Were you asked those questions and you gave those  13 answers?  14 A   Yes, I did.  15 Q   And the answers are true?  16 A   Yes.  17 Q   Now, Mr. Sterritt, you have described Feasts with the  18 Nishga --  19 MR. RUSH:  Excuse me, my lord, I have just looked at the answer  20 preceding that and it seems to me that the passages  21 just read, 1764 and so on, don't make much sense  22 without a reference to 1763.  I think that should be  23 put to the witness.  24 MR. GOLDIE:  I am content to do that, my lord.  25 THE COURT:  All right.  26 MR. GOLDIE:  27 Q  28 "Q     -- that was created -- "  29  30 Well, actually it should begin further up if we are  31 going to do that.  32 THE COURT:  Well, you read up to 1761.  33 MR. GOLDIE:  Yes.  I am going to start, I think, 1761.  34 THE COURT:  You have already read that.  35 MR. GOLDIE:  Is read.  36 Q   So I will just continue.  1762:  37  38 "Q     That is the same overlap -- "  39  40 THE COURT:  Sorry, you didn't include 1761.  41 MR. GOLDIE:  Oh, I am sorry.  I thought I had.  42 Q   1761 then:  43  44 "Q     Now, as you have drawn it so far there does  45 not appear to be any overlap in the  46 northwest sector?  47 A     That's correct -- well, the only overlap in 8496  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 relation to the map would be once again in  2 the Gitksan area.  3 Q     That is the same overlap essentially --  4 A    As number '7'.  5 Q     -- that was created in the line that you  6 drew with the number '7'?  7 Well, Mr. Sterritt, is it your  8 understanding then that there is no overlap  9 or claim by the Nishga in the areas around  10 Bowser Lake or near Bowser Lake claimed by  11 the Gitksan?  12 A     I maintain that there is no overlap.  The  13 Nishga qualified, followed up and qualified  14 their Petition by saying that they owned the  15 Bowser Lake area, and they, they, they told  16 a story that the Gitksan hereditary chiefs  17 are quite familiar with; in particularly the  18 hereditary chiefs of Kitwancool.  And the  19 story applies to Meziadin, to the area near  20 the Meziadin not to the Bowser Lake; but the  21 story told by the Nishga purports to apply  22 to the Bowser area."  23  24 And you were asked those questions and you gave that  25 answer?  26 A   Yes, I did.  27 Q   Thank you.  Now, having gone around the map that is  28 Exhibit 731, I am going to leave that and refer you to  29 Feasts that were attended with the Nishga and you have  30 attended some, have you?  31 A   Yes.  But what I should point out on that is that the  32 Nishga interpretted their Petition to include all of  33 the watershed of the Nass River and then  34 subsequently -- and we had had a couple of meetings  35 and in one of the meetings I informed them that if  36 they were following their 1916 Petition or 1913  37 Petition that it was -- it wasn't interpreted right  38 and subsequently they went and hired a consultant who  39 did an analysis of the Petition which was almost  40 identical to ours.  At that point the Nishga called us  41 to the Nass and indicated to us that they had done  42 this review, revised what it was they were claiming  43 and that's the basis for that line from nine to nine.  44 I just want to clarify that.  That's -- originally  45 they had gone right out and included the area around  46 Geel's territory.  They had gone as far as that where  47 the height of land was there that included the Nass 8497  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 River.  They included those territories.  Including  2 Blackwater Lake and all of that.  So that's the  3 background to this and why I drew the line nine to  4 nine.  5 Q   Now, I asked you a minute ago that you have attended  6 Feasts with the Nishga where the so-called overlap was  7 discussed?  8 A   Yes.  9 Q   And you took notes?  10 A   Yes.  11 Q   And they are as accurate as you could make them at the  12 time?  13 A   The -- yes.  To the best of my ability the language,  14 it was spoken in Gitksan and in -- well, for the  15 purposes of the common language between the Gitksan  16 and the Nishga we call it Sim Algyax, and that's S-i-m  17 space A-1-g-y-a-x.  And so the Nishga also used their  18 own language as well.  19 Q   And the Feast in October 1984, do you recall where  20 that was?  I think you have given evidence on this.  21 A  Well, the first Feast was at Kitwanga and I am not --  22 I don't recall the date of that.  It was in May of --  23 Q   Well, did you --  24 A   It may have been '84.  I don't recall.  But the first  25 meeting of our Feast was in 19 -- or was in May and  26 then the follow-up, the second one was in, I think,  27 October.  2 8 Q   Yes.  And —  2 9 A  And I don't know which one you are referring to.  30 Q   Well, I'm -- I'm going to refer to the one in October.  31 That was the one in which the Nishga were the hosts?  32 A   Yes.  33 Q   And at which they told their adaawk?  34 A  Well, we differed on that.  Whether they were telling  35 adaawk or not.  36 Q   Yes.  They characterize it as such and at least to my  37 recollection one of the Gitksan characterized it as  38 such.  But in general you felt they were not telling  39 adaawks.  They were telling myths?  40 A   They were telling what they call anda mahlasxw.  41 That's a-n-d-a space m-a-h-1-a-s-x-w.  Anda mahlasxw  42 and adaawk are different.  43 Q   Yes.  That's precisely the point I was putting to you.  44 In your view they were telling myths?  45 A   They were telling anda mahlasxw.  46 Q   Well, would you give me the English translation for  47 that, please? 8498  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 A  Well, they carry a moral.  They -- the Wiigyet --  2 that's W-e -- pardon me, W-i-i-g-y-e-t, the Wiigyet  3 stories are anda mahlasxw and they are taught -- they  4 explain how mountains were created or creeks or  5 rivers, lakes; they explain -- and they also provide a  6 moral so as to train young people to do or not to  7 do -- to act properly.  And whereas adaawk are based  8 on history and events.  9 Q   Yes.  The distinctions that you make have already been  10 given in evidence.  I asked you if there is an English  11 translation for what I have referred to as myths and  12 you don't know one, I take it?  13 A  Well, I don't know whether there was a perfect  14 translation.  So --  15 Q   All right.  But at any rate whatever it is that the  16 Nishga told, whether they were adaawk or whether they  17 were what I have described as myths, there was a sharp  18 response from some of the Gitksan present, is that not  19 right?  20 A   No.  I think that the Gitksan hereditary chiefs felt  21 that because eagle down had been blown in the meeting,  22 that a sharp response couldn't be given, that it  23 would -- that it would have to be dealt with later.  24 There were responses given, but I know that one or two  25 hereditary chiefs did come to me and say that we  26 really couldn't deal with it because we were so far  27 apart on it.  They were -- by and large had given anda  28 mahlasxw.  And when we were in Kitwanga the Gitksan  29 hereditary chiefs had given an adaawk about the event.  30 For example, at Bowser Lake where the feather was  31 given over to the house of Skiikm Lax ha by the  32 Stikine and other examples down the boundary.  But in  33 terms of sharp response, there was one hereditary  34 chief gave a humorous response and played on the theme  35 that had been had developed, which was a story about  36 Wiigyet.  37 Q   Yes.  Wasn't the word "aggression" used by at least  38 one chief in describing what he had heard?  39 A   It might have been.  I don't recall.  40 Q   Well, would you agree with me that if I describe  41 something you have said as aggression, that that's a  42 reasonably sharp response?  43 A  Well, you would have to remind me about that.  44 Q   All right.  I will.  Now, the -- have you described  45 all of the -- well, I will put it a little  46 differently.  Following that Feast in October of 1984,  47 what further steps have been done to resolve the 8499  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 difference as it was outlined by you in Exhibit 10  2 that appears to exist between the Nishga and the  3 Gitksan on the question of this overlap?  4 A   I think there were one or two sessions with the Nishga  5 and at one of the sessions I urged the Nishga that it  6 was very important that if there was going to be any  7 differences, further differences, that the way to deal  8 with those differences was to -- either by vehicle or  9 by helicopter to go out to those spots with  10 knowledgeable hereditary chiefs from both parties and  11 to determine the nature of the problem.  I urged that  12 very strongly with the Nishga.  And I got no response.  13 I followed up with phone calls and I got no response.  14 But subsequently there was a meeting where the Nishga  15 called us to -- well, I don't know whether it was  16 subsequently.  I don't know at what point it fell into  17 place, but we were called over and they did a -- is  18 when they did the last presentation which I have  19 described here with the line -- which includes the  20 lines nine to nine, but not the other -- well, I am  21 not sure about the other parts.  22 Q   And that's where matters now stand?  23 A   To the best of my knowledge that's where it stands.  24 We maintain that -- that there are details within the  25 territories, creeks and lakes and mountains that can  26 be identified by knowledgeable hereditary chiefs  27 within the areas that they are talking about and that  28 with -- and that the Gitksan hereditary chiefs have  29 done that.  They have identified the adaawk that  30 relate to those areas, in particular at Bowser Lake.  31 They have named the creeks, lakes and mountains in  32 that area.  And that if the Nishga are going to  33 continue to make that claim in that area, they will  34 have to provide equal detail and evidence of the  35 history, and there is no evidence of that.  The  36 history is very clear in that area.  37 Q   Yes.  I said is that where matters now stand and I  38 understood you to say yes.  Are there notes of the  39 meetings that you have referred to in October 1984?  40 A   I am not sure about that.  41 MR. GOLDIE:   Well, I ask my friend to produce them if there  42 are.  My lord, I am going to to another subject if --  43 THE COURT:  All right.  Should we look forward to hearing about  44 that at 2 o'clock then.  45 MR. GOLDIE:  Very well.  4 6    THE COURT:  Thank you.  4 7 (PROCEEDINGS ADJOURNED PURSUANT TO LUNCHEON 8500  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 ADJOURNMENT)  2  3 I hereby certify the foregoing to be  4 a true and accurate transcript of the  5 proceedings herein to the best of my  6 skill and ability.  7  8  9  10  11  12 Laara Yardley,  13 Official Reporter,  14 United Reporting Service Ltd.  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 3501  N. Sterritt (For Plaintiffs)  Cross-exam by Mr. Goldie  (PROCEEDINGS RESUMED AT 2 O'CLOCK P.M.)  NEIL B. STERRITT, Resumed:  CROSS-EXAMINATION BY MR. GOLDIE:   (Continued)  :  My lord, I wish to put before the witness tab 5 of  the document book of Mr. Solomon Marsden.  It's been  marked Exhibit 454 for identification, my lord.  The  Registrar's mark is reserved, reserved for 454.  Mr. Sterritt, do you identify that as notes in your  handwriting?  Yes, I do.  And of what event, please, or what period, I should  say?  That is the notes that I made at the Nisga'a feast at  Canyon City, I believe, October 27th of '84.  Yes.  Yes.  The date again, please?  October 27th, 1984.  Thank you.  And it is at this feast that the Nisga'a told their  histories or what they suggested were their histories  and the Gitksan listened and made some remarks in  reply; is that right?  Yes.  The Nisga'a were the hosts?  Yes, they were.  And the discussion was with respect to the overlap?  Yes, it was with -- yes.  On page one, you have under the heading "Opening  Ceremony - Gosnell, overlap is not serious", is that  James Gosnell, the president of the Nisga'a Tribal  Council?  I think it was.  He has a brother too but I believe it  was him that was speaking at the time.  His brother was there also, was he not?  Yes, he was.  That's spelled with one L, is it?  I have two here.  :  G-O-S-N-E-L-L.  Thank you.  :  I am sorry, I don't have an extra copy of this.  Just with attempted computer retrieval, we are all  going to be in difficulty.  :  I hope this is spelled uniformly.  I am sorry, my  1  2  3  4  5  CROSS-EXAM  6  7  MR.  GOLDIE  8  9  ]  10  11  Q  1  12  13  A  14  Q  15  16  A  17  1  18  Q  19  THE  COURT:  20  A  21  THE  COURT:  22  MR.  GOLDIE  23  Q  24  25  26  27  A  28  Q  29  A  30  Q  31  A  32  Q  33  i  34  35  i  36  A  37  38  Q  39  A  40  THE  COURT:  41  A  42  MR.  GOLDIE  43  THE  COURT:  44  MR.  GOLDIE  45  THE  COURT:  46  47  MR.  GOLDIE 8502  N. Sterritt (For Plaintiffs)  Cross-exam by Mr. Goldie  1 lord, I have this under tab 14 of the document book.  2 THE COURT:  Thank you.  3 MR. GOLDIE:  The reason I requested the witness to identify it  4 is so that I could tender it as Exhibit 454, and have  5 that exhibit confirmed as such.  6 THE COURT:  Where within tab 14 might I find it?  Oh, I think I  7 have it.  This is page 2.  8 MR. GOLDIE:  Yes.  9 THE REGISTRAR:  Tab 5 is now going to be an Exhibit, my lord?  10 MR. GOLDIE:  Yes, I think the number was reserved for it.  11 THE REGISTRAR:  454.  12 THE COURT:  And what is tab 4 going to be, these notes?  13 MR. GOLDIE:  Yes, my lord.  14  15 (EXHIBIT 454:NOTES OF NEIL B. STERRITT)  16  17 MR. GOLDIE:  18 Q   And your notes indicate the statements that were made  19 by the various speakers from the Nisga'a, including  20 the story of Meziadin as they recounted it.  That, my  21 lord, is on the number at page 26 on the -- page 26 on  22 the —  23 THE COURT:  Yes, I have it.  24 MR. GOLDIE:  2 5 Q   And then —  26 A  Well, as I recall it on page 26, there is some stars  27 there, I don't know if those are mine or someone  28 else's, but that -- they were talking about -- I don't  29 recall whether they were talking about what the  30 Nisga'a call the Tahltan Concession or talking about  31 the history then.  I can't remember.  32 Q   At any rate, the observations of the Nisga'a went on  33 to page 37?  34 A   Yes, that's right.  35 Q   And then you record there a speaker, what was his  3 6 name?  37 A   Elmer Derrick.  Are you referring to the top of the  38 right hand page?  39 Q   No, about midway down, Gwas Laam --  40 MR. RUSH:  What page are you on, please?  41 MR. GOLDIE:  37.  42 A   Yes, G-W-A-S space,  L-A-A-M.  43 Q   And that is Mr. Abel Campbell?  44 A   Yes.  45 Q   A Kitwancool chief?  46 A   Yes.  47 Q   And at the bottom of that page, he is recorded as 8503  N. Sterritt (For Plaintiffs)  Cross-exam by Mr. Goldie  1 saying, "I listened to your Adaawk this evening where  2 you have mentioned your territory and various high  3 chiefs."  It appears that he regarded what he had  4 heard as an Adaawk; is that right?  5 A   I don't know whether he did or not.  6 Q   You just recorded his words?  7 A   He was -- I don't recall.  I think he was speaking in  8 Gitksan and I am not sure what it was he said.  He may  9 have said Adaawk.  10 Q   Well, that's what you thought he said, isn't it?  11 A   Yes, that's what I have there.  12 Q   And the -- then he tells some history and at page 39,  13 you record Mr. Solomon Marsden as speaking, are you  14 not, Gamlakyeltxw?  15 A   Yes.  16 Q   And Mr. Marsden goes on for a couple of pages and then  17 at the bottom of the right hand column on page 40, he  18 is recorded as saying "I hope from deep in our hearts  19 we will give you our Gugwihl Gyoo, that's Mr. Peter  20 Williams, is it not?  21 A   Yes, he is the president of the Kitwancool.  22 Q   Yes.  And on the next page, Mr. Williams is -- you  23 have recorded his statements?  24 A   Yes.  25 Q   And he is here addressing the Nisga'a, is he not?  26 A   Yes, he is.  27 Q   And you have recorded him as saying, "Your high chiefs  28 brought out their strong points.  I will relate to you  29 something I remember."  Then he goes on to speak about  30 the Royal Commission and various other matters of an  31 historical nature; is that right?  32 A   Yes, he did.  33 Q   And he re-tells the Meziadin story from the Kitwancool  34 perspective?  35 A   Yes, he tells the history of Meziadin with respect to  36 the Kitwancool.  37 Q   And on page 41, he says on the second column, he says  38 at the top -- well, I start at the bottom of the left  39 hand column he says, the last two lines:  "This is why  40 Kitwancool owns Meziadin and Bowser Lake is part of  41 Kitwancool and Gitksan own part of Bowser."  42 THE COURT:  Where are you reading that from?  43 MR. GOLDIE:  That's on page 41 — I am sorry, 42.  4 4    THE COURT:  Thank you.  45    MR. GOLDIE:  And it begins at the bottom of the left hand  4 6 column.  47    THE COURT:  Oh, yes. 8504  N. Sterritt (For Plaintiffs)  Cross-exam by Mr. Goldie  1 MR. GOLDIE:  2 Q   And he goes on to say, as you recorded him, "I don't  3 know how long NTC overlap."  NTC is Nisga'a Tribal  4 Council?  5 A   Yes.  6 Q   And he says, "NTC claims all of the lands of Gwinuu"?  7 A   Yes.  8 Q   That's Mr. Godfrey Good, a Kitwancool chief?  9 A   Yes.  10 Q   And he says "this is aggression"?  11 A   Yes.  What he was saying there at that time was that  12 the effect of what the Nisga'a was doing was that it  13 was an act of aggression on their part and at this  14 point it's the Kitwancool who are responding to the  15 Nisga'a, the -- and that's why Solomon Marsden had  16 called on Peter Williams, because Peter has been the  17 president of the Kitwancool since, oh, I think as far  18 back as possibly as far back as the mid-1920s or,  19 pardon me, the -- well, it could be in the 1910 to  20 1920 or somewhere in that period where he became --  21 probably in the '20s, he became the president.  22 Q   He succeeded his father, did he not?  23 A   Yes, he did.  24 Q   And then he, or at least you record him as saying "NTC  25 claims all of Gogak, nil left."  I take it your use of  26 the word "nil" is simply to indicate that the speaker  27 is suggesting that the Nisga'a claim would leave  28 nothing for a number of the hereditary chiefs of the  29 Kitwancool?  30 A   Yes, that's what Peter Williams was saying there, as I  31 recall from reviewing this, is that based on what the  32 Nisga'a are saying there is nothing left for Gogak,  33 G-O-G-A-K, and then the other names that are there,  34 including Gwinuu.  35 Q   And the last name is the Kitwancool name that Mr.  36 James Morrison bears, not the last name but the first  37 name on the last list or the last line of the chiefs'  3 8 names?  39 A   Yes.  Tkawok, and there it's spelled T-K-A-W-O-K.  4 0 Q   And that's Mr. James Morrison?  41 A   Yes.  42 Q   And he says "aggression has taken it not overlap"?  43 A   Yes, aggression by  the Nisga'a, that it wasn't  44 overlap but it was an act of aggression by the Nisga'a  45 because they were not in that area, there was no basis  46 for their claim in that area.  47 Q   That's a fairly sharp rejoinder, is it not? 8505  N. Sterritt (For Plaintiffs)  Cross-exam by Mr. Goldie  1 A   I don't think so.  Peter Williams is quite a gentle  2 individual.  He was simply -- he stood up and spoke in  3 a pretty calm manner and felt that -- pointed out that  4 based on what the Nisga'a were saying, that it was an  5 act of aggression but it wasn't, there was nothing  6 sharp about that.  7 Q   And over the next page, left hand column, second  8 paragraph, you record him as saying, "This is why  9 Kitwancool will not use the term overlap but  10 aggression."  That's a correct recording of what he  11 said?  12 A   To the best of my recollection, yes.  13 Q   And in the next column, second from the bottom, he is  14 recorded as saying, "But tonight another act of  15 aggression" and he is referring to the statements made  16 by the Nisga'a at that feast?  17 A   I don't see where -- that's on the second side?  18 Q   The right hand column on that page, second to last  19 paragraph?  20 A   Yeah, yeah.  21 Q   When he says, "but tonight another act of aggression",  22 he is referring to the statements made by the Nisga'a  23 at this feast?  24 A   Yes.  25 Q   All right.  Thank you.  26 A  And in that he is speaking on behalf of the  27 Kitwancool.  The hereditary chiefs, like Stanley  28 Williams, had passed information along to me that  29 since the eagle down had been spread it was not a  30 place to respond to the stories of the Nisga'a but a  31 place to hear them out and then to go away and  32 consider it.  And Stanley himself got up and told a,  33 as I mentioned already, a story about Wii Gyet, and in  34 his commission evidence he told that same story, at  35 some length, exactly what he said to the Nisga'a.  And  36 it drew laughter from the entire audience, because  37 it's quite humorous.  38 Q   That was a sort of attempt to smooth things over after  39 Mr. Williams had characterized the speeches of the  40 Nisga'a as an act of aggression?  41 A   I wouldn't say that.  42 Q   What was it done for?  43 A   Peter Williams, the messages had come to me before,  44 Peter Williams had talked in terms of how we should  45 deal with the evening, whether we should respond, and  46 no, I wouldn't characterize it that way at all.  Peter  47 Williams was speaking on behalf of the Kitwancool, it 8506  N. Sterritt (For Plaintiffs)  Cross-exam by Mr. Goldie  1 was not up to us how they responded but certainly  2 Stanley Williams was not trying to smooth over  3 anything that Peter Williams said.  4 Q   I see.  The evidence that has been given here is that  5 Kitwancool are Gitksan; is that correct?  6 A   Yes.  7 Q   There is still an outstanding dispute with the  8 Nisga'a?  9 A   I don't know.  That's a matter for Kitwancool.  10 Q   Well -- and what about the matter with respect to the  11 territories which are the subject matter of this  12 claim?  13 A   The Nisga'a wrote a letter -- pardon me, they invited  14 us to come over to the Nass in October of '86, or '87,  15 must have been 1986, and we went over and they  16 outlined what they had to say, they said that they  17 still or that they were -- had claims to land in the  18 Bowser Lake area, that by reason of family, they  19 had -- that there was land in the Blackwater area,  20 that there was an area around Sand Lake and an area on  21 the Kiteen River, I am not sure whether it was just  22 prior to that or just after that, that we had a  23 meeting with the Nisga'a and I urged on them very  24 strongly that we take their knowledgeable elders and  25 ours and go out to those territories we are talking  26 about, and that they provide the same kind of detail  27 that the  Gitksan had provided and I also advised them  28 that it would be my highest priority, whatever I had  29 planned, and I was making trips back and forth to  30 Ottawa and so on, that everything would -- nothing  31 would take priority over a trip with them at the  32 shortest of notice.  And I urged that on them and at  33 no time did they follow-up with that.  No such trip  34 occurred.  And there was, based on the history that  35 Jessie Sterritt has told them on a couple of  36 occasions, and David Gunanoot, about the Bowser area,  37 there is simply no basis for their claim to that area,  38 other than -- I will say something that at one point I  39 asked them the nature of their claim in the Blackwater  40 -Bowser area and they called it their common -- not  41 their common land, they called it their -- not the  42 word common, it was -- I think it had a connotation if  43 not the same word as common lands, and I said what do  44 you mean by that?  Because we have set a standard and  45 that the areas are owned by individual hereditary  46 chiefs, that they can define the creeks, lakes and  47 mountains in those areas and they have a history that 8507  N. Sterritt (For Plaintiffs)  Cross-exam by Mr. Goldie  1 goes with it.  And at no time have we seen this.  They  2 also talked about the Bowser area as being what they  3 call the Tahltan Concession and the Tahltan  4 Concession, I understand that at some point, I think  5 in the 1970s, the Tahltans and the Nisga'a met, the  6 Nisga'a were considerably south by about 40 miles of  7 where the Tahltans had a line, and that during the  8 meeting the Nisga'a assumed that the area between  9 where their line was and where the Tahltan was, was a  10 Tahltan concession to them.  And I have at no time  11 determined any other basis for the Nisga'a being in  12 that area.  13 Q   Well, my question was, what is the status of the  14 matter today, is the -- have the Nisga'a agreed to the  15 boundary which is shown on map 9-A?  16 A   I don't know.  17 Q   Well, your last contact with them was such that you  18 could not say they have agreed to that outline?  19 A   Yes, that's in October of 1980, whatever, that was my  20 understanding.  And the hereditary chiefs of that area  21 have -- they know those territories, they know the  22 history of it and they have signed affidavits to that  23 effect.  24 Q   We know what the Gitksan chiefs have done, Mr.  25 Sterritt.  I was just trying to get your assistance  26 with respect to the position the Nisga'a have taken in  27 relation to the claim that is now before us on map 9-A  28 and I take it your evidence is that they have not  29 agreed to that?  30 A   The last discussion I had with them was in October of  31 19, I guess, 1986, which a number of us attended on  32 the Nass River at short notice.  There was about five  33 or six of us.  34 Q   And there was an agreement at that point on the  35 boundary of the Gitksan-Wet'suwet'en land claim, was  36 there?  37 A  At that time, the Nisga'a pointed out several areas  38 which I have already identified and I had urged on  39 them that we had to get out, if they felt that they  40 had more to say that it had to be done out and on the  41 ground, or just prior to that or just afterwards, I am  42 not sure, but I had indicated to them that we had to  43 get out, that they had to -- there would have to be  44 more work done if that's how they felt, and they never  45 took us up on that.  46 Q   Now I just want to ask you a couple of questions about  47 an item that you dealt with in your examination for 350?  N. Sterritt (For Plaintiffs)  Cross-exam by Mr. Goldie  1 discovery, volume three, my lord, page 308, question  2 1451 to 1454.  The witness is being asked about a  3 video that was earlier identified, question 1451:  4  5 "Q   Do you recall stating in that video that new  6 political institutions will be developed based on  7 traditional Gitksan laws?  8 A   Yes."  9  10 Now my lord, I should provide my friend with the  11 name of that particular video.  I believe it is on  12 Indian Land.  Question 1452:  13  14 "Q   Can you describe for me the nature of the new  15 political institutions you had in mind?  16 A  Well, the new political institutions would be the  17 Feast Hall and the hereditary chiefs  18 administering the territories today in a  19 contemporary sense.  They would -- the ongoing  20 administration of policy making in the territory  21 would have to be a subject that the hereditary  22 chiefs themselves sit down and work out.  There  23 would have to be a definition of the relationship  24 between the Gitksan and the Wet'suwet'en and the  25 provincial government and municipalities and  26 other institutions.  Those are the --  27 Q   Well, Mr. Sterritt that is a relationship, I  28 asked you what the new political institutions  29 were and I understood you to say, the feast?  30 A  Well, the Feast Hall.  31 Q   Feast Hall?  32 A   The Feast Hall and the governing by the  33 hereditary chiefs.  We would have to define those  34 new institutions.  There are -- there are some  35 people working on that.  Those have not been  36 resolved yet.  Those have not been defined in  37 detail."  38  39 Were you asked those questions and did you give  40 those answers?  41 A   Yes, I did.  42 Q   And volume two, page 196, questions 1057 to 1070:  43  44 "Q   I refer —"  45  46 Well, I should have asked you if I didn't, whether  47 the questions I asked you -- I asked the questions -- 8509  N. Sterritt (For Plaintiffs)  Cross-exam by Mr. Goldie  1 did you give the responses that I read to you to the  2 questions I read, and were the answers true?  3 A   Could I look at them again, please?  4 Q   Yes, that's volume four.  Three.  1451 to 1455.  1454.  5 A   That was through how far?  6 Q   1454.  7 A   Yes, those are the answers I gave and that was true to  8 the best of my knowledge at that time.  9 Q   Is it true today?  Are those answers true today?  10 A   I can't say.  11 Q   Because of your lack of knowledge?  12 A   I don't -- I haven't been involved in any of those  13 discussions since spring of 19 -- since I began to  14 work on the affidavits and --  15 Q   Well, that would be some time --  16 A   Pardon me, that's 19 -- that's over -- I started in  17 the summer of '87 but I basically was, from the time  18 about May or June, I was involved in detail in the  19 review of the territories and the affidavits and I  20 don't know what discussions went on in those areas.  21 Q   Well, when did you cease to be president of the Tribal  22 Council?  23 A   In October of 1987.  24 Q   And the evidence you were giving was in February of  25 1987, so your knowledge about this particular area  26 only takes you down to May or June of 1987?  27 A   Yes, I was basically working full-time on those  28 matters.  I spent very little time on my duties as a  29 president from the time that I really got engrossed in  30 reviewing the territories.  31 Q   All right.  I am now going to refer you to volume two,  32 page 196, questions 1057 to 1070:  33  34 "Q   I refer you to paragraph 4 of the prayer for  35 relief which claims 'a declaration that the  36 plaintiffs' rights to jurisdiction includes the  37 right to govern the territory themselves and the  38 members of the houses represented by the  39 plaintiffs in accordance with Gitksan and  40 Wet'suwet'en laws administered through Gitksan  41 and Wet'suwet'en political, legal and social  42 institutions, as they exist and develop.'  The  43 worth 'themselves' is of course limited to the  44 hereditary chiefs who are plaintiffs in this  45 action?  46 A  Word themselves would refer to the plaintiffs and  47 the members would refer to all of the Gitksan and 8510  N. Sterritt (For Plaintiffs)  Cross-exam by Mr. Goldie  1 Wet'suwet'en people."  2  3 Did you give that answer to question 1057 and was  4 that answer true?  5 A   Yes, I gave that answer and to the best of my  6 knowledge, that was true.  7 Q   Question 1058:  8  9 "Q   So it is the hereditary chiefs and the members of  10 their houses who would govern the territory; is  11 that correct?  12 A   On a successful declaration the Gitksan and  13 Wet'suwet'en people would be in a position to  14 negotiate with the federal government and the  15 provincial government to define the relationship  16 with those two institutions and to determine how  17 the resources of territories would be harvested  18 and how the benefits would flow to all people  19 within the territory.  20 Q   But that declaration speaks of governing and I  21 take it the governing would be done by the  22 hereditary chiefs and members of their houses; is  23 that correct?  24 Objection was taken. Question 1060:  25  26 "Q   Are the present residents of the territories who  27 are not members of the Gitksan and Wet'suwet'en  28 excluded from governing if that declaration is  2 9 made?"  30  31 Objection was taken.  Question 1061:  32  33 "Q   Would you identify for me, please, Mr. Sterritt,  34 the political institutions that are referred to  35 there?  36 A   Hereditary chiefs are best able to speak to that  37 but the hereditary chiefs in and of themselves  38 are a political institution.  39 Q   The only political institution referred to in  40 that paragraph?  41 A   Feast Hall.  42 Q   Pardon?  43 A   Feast Hall.  44 Q   Tribal Council?  45 A   Not necessarily.  46 Q   Is it at all?  47 A   It may have not be at all in this case. 3511  N. Sterritt (For Plaintiffs)  Cross-exam by Mr. Goldie  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  Q   Is it excluded from that word?  MR. GRANT: In paragraph 4?  MR. GOLDIE:  Yes.  A   It may be."  And then the next is, on the bottom of page 198 is  indicated as question 1067 but my recollection is that  it was part of the answer, my lord.  If it is the  answer, it would read, "It may be the hereditary  chiefs would have to speak to that.  It may well be."  THE COURT:  Is that agreed?  MR. RUSH:  I can't say one way or the other.  It seems to fix  there.  THE COURT:  All right.  MR. GOLDIE:  Q   Do you have a recollection, Mr. Sterritt, of stating  that the hereditary chiefs would have to speak to the  question of whether the Tribal Council was to be  excluded from the words "political institutions"?  A   I don't recall that.  THE COURT:  Well, unless told otherwise, I will read it as that.  Because there is no question mark and it's more likely  to be a statement made as part of the answer than as a  separate question.  There is another question  following.  It may be cleared up in the next questions, my  MR. GOLDIE:  A  Q  A  lord.  Question 1068:  "Q   What are the legal institutions referred to in  paragraph 4?  A   Legal institutions of the Gitksan and  Wet'suwet'en hereditary chiefs.  Q   What are they, please?  A They are exercised in the Feast Hall.  Q Does that exclude the Tribal Council?  A   Definitely."  Mr. Sterritt, were you asked the questions that I  have read to you and did you give the answers that I  have read?  Yes.  And were those answers true?  To my understanding at the time that was my  information there.  And, Mr. Sterritt, if the concept that you have  referred to in which the compensation for damages, if  such compensation is awarded, is to be distributed 3512  N. Sterritt (For Plaintiffs)  Cross-exam by Mr. Goldie  1  2  3  1  4  5  6  A  7  8  9  Q  10  A  11  Q  12  13  MR.  RUSH:  14  15  16  17  18  19  20  21  THE  COURT:  22  MR.  GOLDIE  23  24  ]  25  26  27  28  29  THE  COURT:  30  MR.  RUSH:  31  32  THE  COURT:  33  34  35  1  36  MR.  RUSH:  37  38  THE  COURT:  39  MR.  RUSH:  40  41  42  THE  COURT:  43  44  45  MR.  RUSH:  46  47  amongst the Gitksan and Wet'suwet'en Houses, rather  than being paid to the chief of the house claiming the  damage, if that concept is instituted it would require  something other than the feast hall to implement,  would you agree with that?  I don't want to comment on that.  That's a fairly  complex matter that would take some consideration by a  lot of people.  Well, is it something beyond your knowledge?  I can't say whether it is or not.  You just don't want to answer the question; is that  right?  Well, my lord, it's a hypothetical question, asking  the witness to posit himself at some point in the  future and in relation to all of the other plaintiffs,  and my friend is asking him what if in the future  something happens and what is your opinion at that  point, or can you project your opinion into the minds  of the other plaintiffs?  And I think it's not an  appropriate question.  Mr. Goldie?  :  Well, I am not going to press the matter, my lord.  My lord, at this point I have reached that part in  my cross-examination where I would ask the witness to  stand down.  And my friends are at liberty to call the  next witness if they are so minded but I have a number  of things that I wish to clear up.  But at this point,  I have -- I apply to have the witness stand down.  Mr. Rush?  Well, I take it this is an application for an  adj ournment?  Well, I suppose in one sense -- well, not really,  because Mr. Goldie is suggesting you go on with some  other witnesses.  He is applying to stand the witness  down.  But Mr. Goldie doesn't determine the sequencing of  the plaintiffs' witnesses.  Oh, no.  And I take this as an application for an adjournment  and our view is we would wish to proceed with Mr.  Sterritt's evidence.  You object to standing the witness down?  The  question of whether you want another witness or not  seems to me a different question.  Well, I don't object to it in relation to -- firstly,  I don't view this as standing the witness down.  I  view this as an application to adjourn Mr. Sterritt's 3513  Discussion  Do you oppose  1 testimony.  2 THE COURT:  Well, I think it's the same thing.  3 that?  4 MR. RUSH:  With respect to Mr. Goldie's application, I don't.  5 THE COURT:  I don't think Mr. Goldie is suggesting that I order  6 you proceed, are you?  7 MR. GOLDIE:  No, I just said I am ready to proceed.  8 THE COURT:  I don't think I would accede to Mr. Goldie's  9 application if he was asking me.  I would take the  10 view that the plaintiffs could, if they were  11 agreeable, call another witness now.  But I wouldn't  12 order them to call another witness now in these  13 circumstances until Mr. Sterritt is finished his  14 cross-examination.  And there may be times, and I  15 would not preclude the court's authority to order  16 another witness to be called, that -- there is no  17 reason for that sort of judicial intervention at this  18 time in this case.  And I am disposed, unless anyone  19 is opposing it, to order that we either stand the  20 witness down or adjourn the completion of the cross-  21 examination, however it's to be described, and the  22 only question is, when do we resume?  I take it that  23 your suggestion, Mr. Goldie, would be -- I take it  24 it's a week from this coming Monday or do you think  25 you might be ready to proceed before then?  That is  26 this week.  I am not available next week.  27 MR. GOLDIE:  Well, I take it, my lord, it's now my friend's  28 application to adjourn.  Perhaps he should suggest  29 when we should start again.  I certainly will be ready  30 on the -- subject to some comments that I make here  31 about production, I will certainly be ready to proceed  32 in the next week on.  33 THE COURT:  You won't be ready by, say, Friday of this week?  34 MR. GOLDIE:  No.  35 THE COURT:  Well, I am not going to put it in a formal basis, I  36 think we will adjourn this trial, subject to whatever  37 else needs to be done this afternoon, and to a week  38 from this coming Monday, at which time Mr. Sterritt's  39 cross-examination will be continued to completion.  40 MR. RUSH:  Well, the only avenue I was going to explore was the  41 question of the cross-examination, if there is  42 cross-examination of the federal defendant.  If there  43 is any that could be done that should be done now.  44 And I was -- I have been advised by the -- Ms.  45 Koenigsberg that they are not prepared to proceed and  46 I advised them last week that in the event that Mr.  47 Goldie applied for an adjournment that they should be 3514  Discussion  1 prepared to proceed.  They say they are not.  But in  2 my view, it's an appropriate situation, that if there  3 is cross-examination they can do they should embark  4 upon it now.  5 THE COURT:  Well, has Mr. Rush stated your position, Ms.  6 Koenigsberg?  7 MS. KOENIGSBERG:  Yes, and I communicated that both before he  8 advised the court and afterward.  9 THE COURT:  I think that if the position hadn't been taken that  10 there is to be a unity of portions of the examination  11 of this witness and if there is objection, I think I  12 would not order Mr. Goldie's cross-examination to be  13 interrupted any more than I would order another  14 witness to be called in the intervening period.  So, I  15 think that that's the appropriate order to make.  And  16 Ms. Koenigsberg's cross-examination will follow the  17 completion of Mr. Goldie's cross-examination, unless  18 other circumstances arise that make it necessary to  19 review or reconsider that ruling.  20 What else is there to do now?  21 MR. GOLDIE:  My lord, I do want to make it clear that I did not  22 apply for an adjournment.  I continued my or I  23 commenced my cross-examination despite the failure to  24 provide me with the notice required.  25 THE COURT:  I don't think if matters how these matters are  26 described.  Mr. Sterritt's evidence in chief was  27 interrupted by adjournment for a day, as I recall.  I  28 don't know whether it was adjourned or stood down, and  29 that happened, and those things happen from time to  30 time in the course of a trial and I don't think it  31 matters now whether someone is seeking an adjournment  32 or what they are doing.  I think we all know what  33 happened.  34 MR. GOLDIE:  I just didn't want the word attached to me for  35 further reference.  36 My lord, we do ask for delivery to us of the band  37 council minutes.  That's a matter which has been  38 outstanding now for a considerable period of time.  39 THE COURT:  Is this still relating to the question of the B. C.  4 0 Fund?  41 MR. GOLDIE:  Yes, and a couple of other things.  And we are now  42 coming up to a point where the request that I made,  43 which was to be fulfilled by the end of August, I  44 don't know whether there is anything in there for Mr.  45 Sterritt's cross-examination, but I do know that there  46 will be things in there which we will be examining in  47 terms of the cross-examination of the Wet'suwet'en 3515  Discussion  1 witnesses.  So that's number one.  2 THE COURT:  Well, let's deal with that.  How is your  3 investigation coming along, Mr. Grant?  4 MR. GRANT:  I think we have to anticipate, since we talked about  5 this I have been in court.  As I indicated, I am just  6 in fact in the process of reviewing a list with  7 respect to the one band, which I have completed.  If  8 Mr. Goldie is concerned about the Wet'suwet'en bands,  9 at some level of priority, I have absolutely no  10 problem with my next foray into that maze of documents  11 going to the Wet'suwet'en bands, although, with  12 respect, I must say for the record, with respect to  13 the B. C. Special, there has been production with  14 respect to Moricetown, Kitwanga and Hagwilget already  15 through the witnesses and that's been full disclosure  16 of the existing documents in the hands of the band  17 councils.  With respect to Kispiox, from my  18 recollection there are -- and in fact I am pretty  19 certain of this, I can advise the court that there  20 were no band documents relating to the B. C. Special.  21 So, I am -- I prefer to -- it's easier, in order to  22 get the whole process done, to deal with all areas  23 that Mr. Goldie wants disclosed at once per band.  But  24 if he is concerned about, for example, B. C. Special  25 documents as a priority, then with some  26 reorganization, I guess I could check those first.  27 But I am basically going by band by band basis.  And  28 aside from computerized list production, which is -- I  29 don't have any problems with that, I see or I  30 anticipate delivering this list to him shortly with  31 respect to the Kispiox band.  There will be an  32 adjournment, I will going to take advantage of some of  33 this time to go into some of the other bands.  But I  34 had said that -- I had said that that entire project  35 with respect to all the bands, given that legal  36 counsel must be involved in it, I do not anticipate  37 that can be completed prior to the end of October with  38 respect to all bands.  But I had indicated that the  39 first band I would be producing a list and that's what  40 I am in fact doing right now.  41 THE COURT:  I am only dealing at the moment with the special  42 fund and it seems to me that this has been around for  43 so long, I would like you to tell me, Mr. Grant, if it  44 would be unreasonable that that disclosure be  45 completed by the end of next week?  46 MR. GRANT:  I just want to -- just a second.  There is three  47 bands left.  I wanted to be sure.  I don't think there 3516  Discussion  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  is a problem with that.  Given the fact that that's  the focus of the documents.  That's not the focus of  the way I was focussing but I don't have any  difficulty in re-focussing that.  There is three bands  and I think that can be handled.  THE COURT:  By the end of next week then.  What else?  MR. GOLDIE:  During the course of Mr. Sterritt's cross-  examination we made several requests, the list of  trapline holders Mr. Sterritt reviewed with Mary and  Ben McKenzie, that's volume 131, page 809, lines 1 to  20, that's a request; our request for a list of or  index to the material in the Gitksan and Wet'suwet'en  Tribal Council Resource Centre, that's at volume 130,  page 8100, lines 21 to 28; the notes with respect to  the interviews with the Tahltan people, Peter Dennis,  Jim Dennis, et cetera, that's volume 134, page 8306;  there is one audio tape, which was first requested in  1987, and has been requested in a series of times  since then; it's number 5602, Mr. Sterritt's interview  with David Gunanoot.  And I would ask for that  production.  And then, my lord, there is --  THE COURT:  You can step down if you want, Mr. Sterritt. You're  welcome to stay if you wish.  MR. GOLDIE:  Then I asked for production of the plaintiffs'  documents numbers 418 and 3013.  Now, the history of  that, my lord, is that Mr. Grant said that he was  reviewing the map, the map which is document 3013, in  his letter of June of 1988, and your lordship will  appreciate that we would require that before the  cross-examination is complete.  The map at 418, which  has been referred to before, is said to be privileged.  I am not sure on what basis.  But whatever the  privilege is, I would like to have it clarified.  Now, my lord, there is one other thing, but perhaps  we should deal with those.  THE COURT:  All right.  Mr. Grant or Mr. Rush?  MR. RUSH:  Well, we are in the process of running down all of  these requests.  These are -- we have noted all of  these and the only one of these which it's unclear to  us just what the nature of the position taken was, is  in relation to 418, where it is said that a claim for  privilege is made.  That does not accord with our  recollection.  And if the source of that information,  whether it's a discussion or a letter or something of  that order, or a statement in court, we would like to 3517  Discussion  1 know that because that's not clear to us.  2 THE COURT:  You don't think you have claimed privilege?  3 MR. RUSH:  I am not sure.  I must confess in this case I really  4 can't say or recall what the situation is with regard  5 to that document.  6 In terms of the others, we have been given enough  7 information to try and run them down and determine  8 where they are.  9 THE COURT:  Well, in as much as these are matters that Mr.  10 Goldie says are required for his cross-examination,  11 or, I think he said that about all or most of them,  12 again it would have been reasonable to expect them to  13 have been produced, barring some unexpected exigency,  14 by the end of next week?  15 MR. RUSH:  I would think that's a reasonable time frame.  16 MR. GOLDIE:  Could we make if earlier, my lord, because the end  17 of next week is the Friday before the cross-  18 examination begins.  With the gift of a couple of days  19 that my friends now have --  20 MR. RUSH:  There is no gift of a couple of days.  We were quite  21 happy to proceed.  22 THE COURT:  Well, it may have not be a gift but it is a couple  23 of days.  24 MR. RUSH:  It is a couple of days but it is no gift.  25 MS. KOENIGSBERG:  Present?  26 MR. RUSH:  What I can tell your lordship is that many of these  27 documents it now appears are in Hazelton and there  28 will have to be a search made of the files.  29 THE COURT:  Well, Mr. Rush, I would think that it is reasonable  30 if the they are required for cross-examination, that  31 Mr. Goldie have them for the weekend before the  32 cross-examination starts.  And subject to anything  33 else that might intervene, I would say not later than  34 Friday, a week from this coming Friday.  35 Mr. Goldie, what else?  36 MR. GOLDIE:  One other thing, my lord, and this has just come up  37 today.  In our examination of the materials that have  38 been given us, we have come to the conclusion that  39 certain of the materials have been edited.  Now, I  40 drew the witness's attention to one of them this  41 morning and the explanation that was given was that  42 the photocopying machine had run into a problem and my  43 friend, Mr. Rush, was going through the job of  44 determining in what other instances that has taken  45 place.  In a conversation that Miss Sigurdson had with  46 Ms. Koenigsberg, at which Iwas present, I understand a  47 question of privilege has been raised as a reason for 351?  Discussion  1 exclusion of certain of the passages in the materials  2 under 721.  3 MR. RUSH:  Who told you that?  4 MR. GOLDIE:  Pardon?  5 MR. RUSH:  Who told you that?  6 MR. GOLDIE:  I understood that from Ms. Koenigsberg.  7 MR. RUSH:  Well, you should get your information from Mrs.  8 Koenigsberg correct.  9 MR. GOLDIE:  Well, perhaps my friend will inform the court in  10 respect to what privilege is being claimed in the  11 documents that we have been given?  12 THE COURT:  If any.  13 MR. GOLDIE: If any.  14 MR. RUSH:  Well, firstly, my lord, in respect of the material  15 that my friend has referred to, there has been no  16 editing.  And the allegation that he says that such  17 has occurred is wrong.  18 Now, the discussion I had with Ms. Koenigsberg, and  19 she would have, I hope, reported it accurately to Mr.  20 Goldie, and Mr. Goldie reported it accurately to the  21 court, was that in respect of some of the field  22 notebooks, there had been an editing for privilege of  23 communications with counsel, not in respect of any of  24 the material that's in 721, which are loose-leaf  25 notes.  26 MR. GOLDIE:  Well, I was coming to that but you carry on.  27 MR. RUSH:  No, I think you should carry on.  28 MR. GOLDIE:  No, I would like to hear precisely where it is that  29 the editing has taken place.  I was going to go  30 through 721, has it been done there?  Here, here and  31 here.  But my friend says my information is incorrect,  32 and probably it is.  The point that is of any  33 importance right now is in -- where has the editing  34 been done?  Because we have been struggling with  35 material which in some places seems to lack continuity  36 and if there is a claim for privilege, we want to know  37 on what the basis is and we have we want to have some  38 idea how to identify it.  39 THE COURT:  Well, Mr. Rush says that there is no editing in  40 Exhibit 721 and unless he resiles from that, or you  41 can direct his attention specifically to an apparent  42 gap? I assume that that problem is out of the way.  43 With respect to a claim for privilege elsewhere in  44 documents, that is by way of editing in documents that  45 have been produced, it seems to me that the old wisdom  46 upon which we are often well advised to rely, where  47 there is a claim for privilege it must be -- the 3519  Discussion  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  document must be disclosed by way of an identifying  description and the claim for privilege made  specifically with respect to such material.  And in --  my first reaction in the dialogue I am hearing from  counsel is that if there has been production of field  notes and, for example, and if there has been editing  for the purposes of privilege, there should be a  specific claim for privilege set out in some way,  usually an affidavit of documents, but we don't have  that sort of thing any more.  But even in a disclosure  list.  But I think ex necessity, documents are being  disclosed, when a list is being made where there is no  claim for privilege.  But is there any reason, Mr.  Rush, to depart from conventional wisdom with respect  to a specific claim for privilege where one is being  advanced?  MR. RUSH:  Just that we have to go back and review all of the  material, all the field notebooks which my friends  have had since March of 1987.  If they had had a  concern about continuity or anything, we would have  hoped to have heard from them on it.  But I think we  are talking about a task of considerable proportions,  to review the material that's been given to my  friends.  THE COURT:  Well, all right.  Excuse me.  Mr. Goldie, are you  able to indicate to your friend, not necessarily right  now, but by a letter over the next couple of days  where it appears those places where there appears to  be some editing by reason of some lack of continuity?  GOLDIE: Let me give your lordship jsut an example from 721,  and this may turn out to be the problem with the Xerox  machine.  COURT:  Yes.  GOLDIE:  It's under tab 1, and it's one, two, three, four,  five, six, seven pages from the end.  COURT:  Just a moment.  GOLDIE: And it is -- it purports to be one of ten pages -- I  am sorry, it purports to be a ten page discussion with  Mr. Gunanoot and Mr. McLean and a Mr. Jerry Gunanoot  of March 12th, 1987, and your lordship will see in the  upper right hand corner, one of ten, two of ten and  then if we go over to the next page it says four of  ten and then about three or four lines down, three of  ten.  THE COURT:  Sorry.  Just a moment.  Yes, I see it.  MR. GOLDIE:  Then the -- I don't know what the explanation is  for that but it doesn't seem to be in -- the  MR.  THE  MR.  THE  MR. 3520  Discussion  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR. RUSH  THE COURT  MR.  THE  MR.  THE  MR.  RUSH:  COURT  MR. RUSH  THE  MR.  continuity doesn't seem to be preserved.  Well, my lord, I think that it is self-evident what  happenedthere.  Four of ten and three of ten,  obviously two pages in sequence have been pulled  through at the same time.  I can see the faint outline of a line under  "smoked", for example, you can just see where the top  of that page looks like it was photographed there.  But that's an example.  Anything else you can point  to, Mr. Goldie?  GOLDIE:  Not right now, my lord.  COURT:  No.  Well, Mr. Rush has indicated that he is  reviewing this exhibit with respect to the kind of  mechanical, I will use the word failure, but in a  neutral sense, has occurred in connection with this  exhibit.  And that should solve that problem.  With  respect to the field notes, I am not sure if -- are  you able to state, Mr. Rush, whether the field notes  have been edited for purposes of privilege?  Well, my lord, I can remember one passage in respect  of one field note.  All right.  Then let me ask Mr. Goldie, are you  aware of any specific examples in the field notes?  GOLDIE:  From time to time, I can say personally that in  reviewing the field notes I have had trouble in  picking up one page from another.  What I am -- I  don't want to waste my time and I don't want to waste  my friend's time.  I have some of those as -- I will  put it this way, being reviewed in the light of the  material that was supplied in September for the  purposes of my cross-examination.  If I find that I  have a problem with continuity with those selected  ones, I will inform my friend.  I think that's the way to go and I wish my friend had  done this with respect to these 471, or 721, because I  think we could have resolved that a lot more quickly  and I was hoping to have a letter and the pages with  respect to the earlier entry mentioned for my friend  before the end of the day.  All right.  I think that resolves that bit of  unpleasantness.  I have nothing further except to say this, my lord,  my friends are in receipt of requests from us with  respect to the sequence of the witnesses for cross-  examination on affidavit, and identification of those  who require translation.  This has been brought up and  your lordship mentioned that this should be done in  COURT  GOLDIE 3521  Discussion  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  good time.  I don't want that lost sight of, because  we won't be meeting until October 3rd, I think it is,  and I would expect that material to be delivered in  the interim period.  THE REGISTRAR:  It will be next October 11th which is Tuesday.  MR. GOLDIE:  Yes, October 11th.  October 3rd is next Monday.  THE COURT:  Yes.  MR. GRANT:  Just to be clear on that, I had anticipated when  I -- that we would have -- I would not have been here  this week, but now that I can anticipate dealing with  this matter on my return up north, I have to meet with  the people, what the answer to those questions, but I  can deliver it in advance.  THE COURT: I think that should be put behind you as soon as  conveniently possible.  MR. GRANT:  We need to know that as well, of course, so --  THE COURT:  All right.  Anything else?  All right.  I won't  say -- I don't hope to see some of you in the Court of  Appeal next week, but if you are not there, I will  understand.  (PROCEEDINGS ADJOURNED UNTIL OCTOBER 11TH, 19?  o'clock A. M.)  AT 10  I hereby certify the foregoing to be  a true and accurate transcript of the  proceedings herein to the best of my  skill and ability.  Wilf Roy  Official Reporter


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