Open Collections

Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1988-10-14] British Columbia. Supreme Court Oct 14, 1988

Item Metadata


JSON: delgamuukw-1.0019493.json
JSON-LD: delgamuukw-1.0019493-ld.json
RDF/XML (Pretty): delgamuukw-1.0019493-rdf.xml
RDF/JSON: delgamuukw-1.0019493-rdf.json
Turtle: delgamuukw-1.0019493-turtle.txt
N-Triples: delgamuukw-1.0019493-rdf-ntriples.txt
Original Record: delgamuukw-1.0019493-source.json
Full Text

Full Text

 3786  Discussion Re:  Scheduling  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR.  THE  MR.  THE  MR.  THE  MR.  THE  THE  MR.  Vancouver, B.C.  14 October 198?  (PROCEEDINGS RESUMED PURSUANT TO AN ADJOURNMENT)  REGISTRAR:  Order in court.  COURT:  Call the case, please.  REGISTRAR:  In the Supreme Court of British Columbia, at  Vancouver, this, the 14th day of October, 1988.  In  the matter of Delgamuukw versus Her Majesty the  Queen, my lord.  Is it convenient to discuss scheduling?  And I'd  like to just confirm my understanding that we will  be adjourning on the 25th of November and resuming  on the 28th in Smithers.  Yes, that's my understanding.  There is no change in that.  THE  THE  THE  THE COURT  RUSH:  COURT  RUSH:  COURT  RUSH:  COURT  RUSH:  COURT:  MR. GOLDIE  COURT:  RUSH:  No.  And we'll be sitting in Smithers for two weeks.  Yes.  All right.  And then the question arises, when do we  resume in January.  I assume we will still be going  in January?  It is a fair assumption, my lord.  We can do it on an if-necessary basis, I suppose.  The New Year's Day falls on a Sunday so Monday will  be a holiday.  January 3 -- Tuesday, January 3 would  be the first possible date.  Most of the courts are  resuming Monday, January -- well, I am sorry, the  Supreme Court will resume January -- Tuesday,  January 3; the Court of Appeal resumes Monday,  January 9th.  What do counsel prefer?  Is there a  cushion that should be established in case you  haven't finished in Smithers or do you think we  should dive back into battle here on the 3rd of  January, or do counsel think, in view of the siege  that you are all enduring, that a week or two week  extra delay might be time well spent resting?  I am  in counsel's hands in that regard.  :  I am -- I would prefer to hear the plaintiff's  view.  It is their case at the present time and I  would seek to accommodate that.  What do you think?  Well, there are two questions that I think should be  addressed here.  One is the question of when we  should commence in the New Year, and I was going to  propose, given my scepticism about how long these 3787  Discussion Re:  Scheduling  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  cross-examinations have been taking or even if there  should be a week longer in terms of a cushion as you  describe it, I think we should consider taking a  further week and recommencing on the 9th I believe  it is.  That's one issue.  The other issue, my lord, is one that we counsel  are going to take up with the plaintiffs, in fact  have already addressed it with the plaintiffs, and  that is whether or not the present schedule rotation  should be altered in any way.  And when your  lordship raised this at the beginning of the week,  we have raised this with the plaintiffs and we hope  to be able to advise your lordship in a week's time  as to whether or not the plaintiffs would recommend  a change in the present one week off and three weeks  of trial activity.  There have been discussions  between some of the plaintiffs and counsel that  this -- that this possibly should be changed, and we  are seeking instructions on that and I hope to be  able to advise you on that in a week.  So that's a  bigger question which may bear on the issue of the  commencement.  THE COURT:  Are you thinking about dropping the fourth week off  or adding to the period -- the interval between  sitting weeks?  MR. RUSH:  Adding to the interval of sitting weeks.  THE COURT:  I would not look favourably upon the other  direction.  I think three weeks --  MR. RUSH:  Neither would I.  THE COURT: I think three weeks is enough to sit consecutively  and a break -- some break is required. All right.  I think that you should bring that matter up again  when you are instructed and speak to your friends,  and I'd be glad to hear what you say about that.  MR. RUSH:  We are particularly focusing on the period in the New  Year because there is in a sense a break between  the -- we hope to be able to finish the  cross-examinations of the lay witnesses in the New  Year but I should be able to advise you of that in  about a week.  THE COURT:  Ms. Koenigsberg, what about January 9?  MS. KOENIGSBERG:  I have no problems with that.  I should  mention, and I don't know -- I don't mean to speak  out of turn, but I also don't want to see this  changed after we have discussed it today.  I had  understood Mr. Grant to say, and I have a note, that  he had proposed that we not sit the week of the 25th Discussion Re:  Scheduling  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  because I believe he said that they felt they needed  that time to prepare the witnesses for  cross-examination.  I could be wrong.  THE COURT:  25th of.  MS. KOENIGSBERG:  That's right.  I thought he had proposed that  we would not be sitting, I believe, the 21st.  THE COURT:  Yes.  MS. KOENIGSBERG:  Something like that and, if that was the case,  I thought we better address that now.  That's -- I  shouldn't like to be put in a position of organizing  all of our lives to go up to Smithers and try and  finish all these cross-examinations.  THE COURT:  Well, at the moment, we will be sitting -- we are in  the week of the 11th.  We'll be sitting this week,  the week of the 17th, and the week of the 24th.  Then we will be off the week of the 31st of October.  Now, my memory has gone hazy after that.  I assume  we would resume on the 7th and we'd go the 7th, the  14th -- the weeks of the 7th and the 14th of  November and the 25th of November.  Now, is that the  week --  MS. KOENIGSBERG:  In the normal course I believe that is what  the schedule would be, but I just had a note that  when Mr. Grant was here and we were discussing this  scheduling and going to Smithers, he had advised you  that he thought that they would require a week off  before we commenced the cross-examinations.  THE COURT:  I don't recall that but I accept what you say.  MS. KOENIGSBERG:  If that's the — I only raise it because, if  that's the case, I am sure all of us are concerned  that everything be done that can be done to attempt  to finish 34 cross-examinations in three weeks, two  with court sitting and one without, if necessary.  And if they require that week in order to assist at  their end in finishing, then I am in favour of it.  All right.  Mr. Rush, do you have any instructions  on that week of November?  RUSH:  My understanding was the same as Ms. Koenigsberg.  COURT:  That we would not sit.  RUSH:  That the -- the court would adjourn in the week prior  to November 22nd, and there would be a week hiatus  before commencing in Smithers.  Yes, all right. Well, you say the week -- start on  the 21st. You suggest we might go into the week to  finish a witness and then adjourn.  MR. RUSH:  No, my lord.  THE COURT:  You meant the 21st.  THE COURT  MR.  THE  MR.  THE COURT 3789  Discussion Re:  Scheduling  1 MR. RUSH:  I meant the 21st.  Our expectation was that one of  2 the witnesses, I think it is Dr. Daily, would start  3 on the 7th and take two weeks.  4 THE COURT:  All right.  All right.  Well then, subject to change  5 which will hopefully be unnecessary, we would not  6 sit the week of November 21st.  7 MR. GOLDIE:  Could I leave some degree of flex -- or suggest  8 some degree of flexibility there, my lord?  The  9 time-table as proposed by the plaintiff is now a  10 week behind.  If there is a witness on the stand at  11 the end of the week of November 14, it seems to me  12 it wouldn't be too much, if it was just a day or so  13 into the week of the 21st, in order to catch up in  14 some measure --  15 THE COURT:  Yes.  16 MR. GOLDIE:  -- the present schedule.  Other than that, I have  17 no submissions.  18 THE COURT:  We will certainly look at that.  As I said, we are  19 now in the week of the 11th of October and we will  20 be sitting all next week and all the following week.  21 May I tell counsel that, if it's possible, I would  22 like to adjourn at noon on the 28th, that's the  23 Friday, the last Friday of that segment.  I am  24 expected to be at Kamloops that evening for the  25 retirement of Judge MacDonald who is a dear old  26 friend and a wearying warrior, and I would like to  27 be there, and it's not convenient to get there in  28 time for the dinner if I don't adjourn at noon.  We  29 at one time were rather tailing off in the afternoon  30 of the third week of sessions to accommodate various  31 other interests and, if it is at all possible, I  32 will try to adjourn at noon on that last Friday.  33 All right.  Are you ready?  34 MR. RUSH:  My lord, I should advise you that there may be a  35 difficulty next week in terms of proceeding with the  36 present schedule.  Mr. Grant and Ms. Mandell have  37 both been in another court all of this week arguing  38 an injunction application and it looks like it is  39 going to take the balance of today.  And the two of  40 them were responsible for leading the witnesses who  41 were to be led next week, and my present advice from  42 them is that they would need some time to make up  43 the time that they had intended to commit to the  44 leading of or the preparation of those witnesses  45 next week, and I at this moment am very dubious as  46 to whether or not they would be in a position to  47 proceed with those witnesses. 3790  Discussion Re:  Scheduling  1 THE COURT:  All right.  I suppose we will have to leave that  2 until it arises.  I don't know what your friends'  3 positions will be and perhaps I better not ask them.  4 We are going to be a few more days with Mr.  5 Sterritt, I assume, aren't we?  6 MR. GOLDIE:  Well, my lord, I intend to finish what I can today.  7 I don't know what cross-examination Ms. Koenigsberg  8 has but, for the reason that my friend Mr. Rush has  9 referred to, I assume, Mr. Grant has been unable to  10 provide me with the band council resolutions.  11 THE COURT:  Yes.  12 MR. GOLDIE:  And I -- nor has there been supplied the contracts  13 that I requested in my letter of September 29.  I  14 would propose, when I finish this, to have Mr.  15 Sterritt stand down for the purpose of -- so that he  16 may be recalled when those documents are produced,  17 but that would not take me very long once I get  18 them; at least that's my present anticipation.  I  19 would also want to defer marking for or having the  20 witness identify tapes.  We are still going through  21 the tapes that we received in September and I  22 anticipate there may be some that I would wish him  23 to identify.  I don't anticipate playing them.  I  24 would simply want him to identify them.  Subject to  25 that, my lord, I would hope that we would have been  26 able to proceed with the expert witnesses next week.  27 THE COURT:  Well, that would be highly desirable.  If it is not  28 possible of course, it is not possible.  29 MR. RUSH:  I think I should say, my lord, that there has been  30 correspondence between Mr. Grant and Mr. Goldie  31 regarding the obtaining of the band council  32 resolutions and the simple fact is that Mr. Grant's  33 presence is required to do those searches.  34 MR. GOLDIE:  I am not being critical of Mr. Grant at all.  35 MR. RUSH:  No, and neither am I taking that from what you said  36 nor do I assume that you are.  What I am saying is  37 that I think that it makes from the standpoint of  38 completing Mr. Sterritt and, if it's -- if it is as  39 my friend suggests, that his desire to stand Mr.  40 Sterritt down for the purposes of examining on the  41 documents that would be produced, I think next week  42 would allow both Mr. Grant to obtain the documents  43 and as well to complete his -- to complete the  44 preparations for his witness.  45 THE COURT:  There is no reason why Mr. Sterritt or why Mr.  46 Goldie's cross-examination couldn't be stood down  47 and Ms. Koenigsberg's proceeds, is there? 8791  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 MR. RUSH:  None that I can see.  2 THE COURT:  No.  All right.  So proceed Mr. Goldie.  3 MR. GOLDIE:  Yes, thank you.  My lord, I think we had reached,  4 in the reading in of the discovery, volume 4, and I  5 had read questions 1898 to 1904, and the next are  6 1925 to 1926.  7 THE COURT:  All right.  8 MR. GOLDIE:  9 "1925  Q  I want to ask you a few questions about  10 Exhibits 14 and 15, which were marked  11 yesterday.  I am referring to Exhibit 14,  12 which is your letter of March 30th, 1983,  13 to Mr. Peter Williams, president of  14 Kitwancool, and I refer you to paragraph  15 one and the sentence which reads, and I  16 quote:  'This evidence was to be in the  17 form of maps showing House territories, a  18 tape recording of the story behind each  19 Chief's hunting territory, photographs, of  20 each Chief's totem pole and a tape  21 recording of each Chief's laments song.'  22 What do you mean by 'hunting territory'?  23 A  The hunting territory would correspond to  24 the House territory.  It is the land that  25 is owned by the hereditary Chiefs and --  26 1926  Q  Well, I think, I think you have answered my  27 question when you tell me it is the same as  28 the House territory.  29 A  The hereditary Chiefs have berry grounds,  30 fishing grounds, and hunting grounds, so  31 the intent of what I was describing was to  32 ensure that the overall territory of the  33 hereditary Chiefs would be included."  34  35 Question 1936 and 1938.  36  37 "1936  Q  Now, in that letter you also refer in  38 paragraph three to the Profit of  39 Prendre..."  40  41 That should be Prendre, not Pendre, my lord.  42  43 "Would you tell me what that is, please?  44 (EXHIBIT SHOWN TO WITNESS.)  45 A Well, the Profit a Prendre case, the  46 Gitksan and Wet'suwet'en hereditary Chiefs  47 have been very concerned about the way the 8792  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 Department of Fisheries and Oceans and Fish  2 and Wildlife attempt to regulate the fish  3 in the waters of the Gitksan and the  4 Wet'suwet'en, and their total ignorance of  5 the actual management practices of the  6 Gitksan and the Wet'suwet'en hereditary  7 Chiefs themselves when they harvest fish  8 and how they, how they take fish, and how  9 they leave the fish, at the times they  10 leave the fish alone, how they relate, how  11 people own fishing sites, and how they  12 allow certain people to go on or not to go  13 on.  And the Department of Fisheries has  14 set up a policy -- and the B.C. Fish and  15 Wildlife that reflects the commercial  16 fishery on the coast and really in, in the  17 final analysis biologists, even within the  18 Department of Fisheries and Oceans, and  19 by the Fish and Wildlife biologists, and  20 others, and it really isn't geared to  21 conservation but is more geared to the  22 commercial fishery and might -- being the  23 needs of the commercial fishery -- it is  24 not really geared to the meeting the  25 needs of the fishery conservation.  26 1937  Q  Mr. Sterritt —  27 A  Yes -- so, in the Profit a Prendre case the  28 Gitksan and the Wet'suwet'en have attempted  29 to dialogue with those parties, and the  30 dialogue has been very unsatisfactory.  31 1938  Q  What is the Profit a Prendre case?  32 A  I am getting to it, Mr. Goldie.  Because of  33 the dialogue being so unsatisfactory the  34 Department of Fisheries and Oceans  35 prefers, has preferred to ignore the  36 Gitksan and Wet'suwet'en, and most of the  37 people in British Columbia, and it is a  38 very arrogant and haughty attitude, and  39 there is a tremendous knowledge of the  40 people about the fish -- we developed a  41 study in 1979 that was -- I think, that you  42 are aware of that was to be probably the  43 first in depth study of the Indian fishery,  44 and that study relied on a lot of  45 information and a lot or our own  46 information that the Department of  47 Fisheries, and Fish and Wildlife had and 8793  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 the Department of Fisheries and Oceans  2 decided that we had to develop -- we wanted  3 to implement a management system on the,  4 on our rivers reflecting these needs and  5 the Department of Fisheries and Oceans  6 still refused to do that, so we felt one  7 way to bring, to establish a legitimate way  8 to establish the nature of our interest on  9 the river was to enter into -- well, since  10 negotiations wasn't working, enter into  11 litigation.  And we framed a case that  12 dealt with Profit a Prendre.  Now, I would  13 have to refresh my memory, so I don't know  14 whether, I don't think I want to speak on  15 it right now.  But, basically the Profit a  16 Prendre case was to address the issue of  17 ownership of the fish within our  18 territories."  19  20 Question 2026 to 2028.  21  22 "2026  Q  All right.  But one hundred percent within  23 the area bounded on Exhibit 10 by that  24 black line which indicates the boundary as  25 of 1984, a hundred percent of that area  26 was, so far as as were you concerned,  27 covered by House territories?  2 8 A  Yes."  29  30 My lord, Exhibit 10 in the discovery is Exhibit 731  31 in the trial.  32  33 "2027  Q  And you knew which Houses?  34 A Which Houses, but it was necessary to  35 ensure that the right Houses were in the  36 given area.  37 2028  Q  Yes, I understand that.  You made  38 adjustments?  39 A  Based on direction from the hereditary  40 Chiefs, based on analysis.  41 2029  Q  Right.  Now, was there any reason why there  42 could not have been provided in November  43 22nd, 1985, a map showing the territory  44 claimed by each House and clan party to  45 this action?  46 MR. GRANT:  I instruct the witness not to answer.  47 MR. GOLDIE:  No — 8794  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 MR. GRANT:  That is a question for counsel, Mr.  2 Goldie, and I instruct the witness not to  3 answer.  4 MR. GOLDIE:  Well, perhaps you would be good enough  5 to answer for him.  6 MR. GRANT:  You are referring to a letter that you  7 wrote to him, and I believe I will have to  8 refer to my correspondence file; I believe  9 there was response to that.  10 MR. GOLDIE I am asking the witness if there was any  11 reason why that could not have been  12 provided.  13 MR. GRANT:  I am saying that is a question for  14 counsel.  15 MR. GOLDIE:  In a factual sense, in a factual  16 sense --  17 MR. GRANT:  It is a question for counsel.  18 MR. GOLDIE:  And is that the only information that  19 you can give me at this point?  20 MR. GRANT:  I say it is a question for counsel, and  21 I will review and bring my correspondence  22 file and on review of my correspondence I  23 may be able to give you more of a response  24 after reviewing that.  I do not have my  25 correspondence to check that.  26 MR. GOLDIE:  In the meantime I would like that  27 marked as an exhibit, please.  28 MR. GRANT:  What is that?  29 MR. GOLDIE:  My letter of November the 22nd, 1985,  30 addressed to Mr. Grant and to Mr. Rush  31 enclosing an initial set of interrogatories  32 and asking for some general information;  33 one, a list of the members of each House  34 represented in the action, showing for each  35 member his or her name, address, D.I.A.  36 number, and the band into which he belongs;  37 two, a list of the lands of each  38 represented in the action, and so on and  39 forth, and, five, a map showing the  40 territory claimed by each House and clan  41 party to this action, what parts are in  42 conflict with the territorial claims of  43 other Houses, clans, bands or native  44 organizations.  45 (EXHIBIT 17 - letter of November 22, 1985)"  46  47 My lord, that is Exhibit 735 in the trial.  Question 3795  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  2038 to 2039.  '2038  Q  Mr. Sterritt, you understood that if you  made a mistake and excluded land which the  Chiefs wanted you to include, that land  would not be the subject-matter of this  lawsuit; you understood that, did you not?  A  Yes, yes, I did.  Q  And that underscored for you the importance  of the work that you have undertaken?  A And for that reason I spent a tremendous  amount of time ensuring that I met with the  respective hereditary Chiefs."  2039  THE COURT:  MR. GOLDIE:  THE COURT:  MR. GOLDIE:  THE COURT:  MR. GOLDIE:  Questions 2104 and 2105.  "2104  Q  Did you, in the course of your searches,  having for their purpose..."  I am sorry, where are you reading?  2104, my lord, page 493.  2104, I am sorry.  Yes, thank you.  "2104  Q  Did you, in the course of your searches,  having for their purpose the determination  of boundaries, ascertain whether the  Gitksan Chiefs had presented any Petitions  of their own?  A  I understand that in 1908, and even before  that, Gitksan hereditary Chiefs were making  representations and may have been part of a  delegation that went to Victoria and  Ottawa --  2105  Q  Yes.  A  -- to make representation, and I understand  prepared -- there was, I don't know whether  it was an oral or a written, because I have  never seen a written presentation, but  there was a group that went to Ottawa, I  think, in 1908, and our people refer to  that quite often."  2168, page 515, my lord.  Thank you.  "2168  Q  I am going to refer you to page two of the  Exhibit. 3796  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. GRANT:  Exhibit 7."  THE COURT:  MR.  THE  GOLDIE:  COURT:  MR. GOLDIE:  My lord, that is Exhibit 384 at the trial.  '2169  Q  Exhibit 7, the page that begins at the top  two 'introduction'.  (DOCUMENT SHOWN TO WITNESS)  A  Um-hum.  2170 Q  And the first sentence of which reads, and  I quote:  'The Gitksan-Carrier Tribal  Council can be considered senior political  entity representing eight Indian Villages  on the Upper Skeena and Lower Bulkley  Rivers in northwestern British Columbia.'  Now, was there any other entity, political  entity that was senior to the Tribal  Council at that time?  A  I said 'a' political entity in my comments  just now, and the other entities would be  the hereditary Chiefs and the Band  Councils.  2171 Q  The question is, were there any other  entities senior to the Gitksan-Carrier  Tribal Council as a political entity in  1977?  A  I would say that the hereditary Chiefs were  senior at that time.  2172 Q  Well, was not the Tribal Council a  political representative of the Tribal  Chiefs?  A  The hereditary Chiefs made political  representations on his -- their own behalf  and also expected and asked the Tribal  Council, and sometimes the Band Councils to  do the same."  Question 2204, 2209, my lord.  This is the same  situation that I described yesterday where between  the discovery in February and the discovery in --  resumption of the discovery in March.  Excuse me just a minute, Mr. Goldie.  I marked 2144  when you were reading --  2104.  And I just want to delete my mark.  Well, I have  done that.  Go ahead, thank you.  It is page 526, my lord, question 2204, and I was  saying that the question starts out with a 8797  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 reference, question 1198.  That refers to the  2 previous discovery.  3  4 "2204  Q  Question 1198.  Question:  'Between July,  5 1977, and the present has the Tribal  6 Council conducted a census as to establish  7 who will qualify as a member of the Gitksan  8 nation?'  What is your answer to that,  9 please?  10 A  No, the membership has been worked on by  11 genealogists in the last few years, and  12 that is the extent of any list that we  13 have, and it has been submitted through the  14 interrogatories.  15 2205  Q  We have not received all of the  16 interrogatories yet.  Is there a  17 consolidated list?  18 A  No, no, there is not.  19 2206  Q  And the genealogists, were those employed  20 by the Tribal Council?  21 A  The genealogist is employed by the Tribal  22 Council.  23 2207  Q  Yes.  And have they provided you with not  24 one list, but fifty, sixty, seventy lists?  25 MR. GRANT:  With respect to the genealogist, he is  26 acting on the instructions of counsel and  27 is providing material to counsel and you  28 have received a summary of the expert's  29 report; I believe that you have received a  30 complete expert report of the genealogists,  31 of the summaries.  32 MR. GOLDIE:  Whether I have or have not is beside  33 the point.  I am asking Mr. Sterritt if  34 there is a census and the answer was  35 'No, there no census.'  Is that correct?  36 A  Yes.  37 2208  Q  I then asked:  'Has the Tribal Council  38 prepared a list of people who qualify as a  39 member of the Gitksan nation'?  4 0 A We have not.  41 2209  Q  But the lists that are attached to the  42 interrogatories are those who qualify as  43 members of the Gitksan nation, the  44 interrogatories answered by Gitksan Chiefs,  45 of course?  4 6 A And Wet'suwet'en.  47 2212  Q  Second sentence..." 379?  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1  2 This again is a reference to Exhibit 384 and the  3 page 4 of the document was shown to the witness and  4 I am referring to a second sentence in my question.  5  6 "2212  Q  Second sentence:  'The following chronology  7 indicates just a brief summary of the  8 written evidence supporting the Gitksan  9 claim that the Gitksan-Simoighets Chiefs  10 desired negotiations of a Treaty over their  11 land before permitting European access to  12 their territory.  The government  13 authorities responsible preferred to ignore  14 their appeals.'  Can you direct me to the  15 evidence which supports the claim that the  16 Gitksan Chiefs desired negotiating of a  17 Treaty?  18 A  The -- I couldn't direct you to it right  19 now, to anything that states that, and I am  20 not sure that the word 'Treaty' was used.  21 It may have been, and it may not have been,  22 but, no, I can't, I can't do that at this  2 3 time."  24  25 Question 2222.  26  27 "2222  Q  Mr. Sterritt, what I want to know, and you  28 may have answered this, and if so you can  29 say so, is there any evidence of the  30 Gitksan Chiefs proposing a Treaty over  31 their lands?  32 MR. GRANT:  You can complete your explanation, Mr.  33 Sterritt?  34 A  The process that was undertaken led to  35 Treaties throughout Canada.  The hereditary  36 Chiefs of the Gitksan and Wet'suwet'en went  37 on to Ottawa, and perhaps to Victoria, and  38 made representations and the outcome of  39 their demands would have led to  40 negotiations, if they, if the Province or  41 the Federal Government had responded  42 fairly, and no doubt they, they could have  43 entered into Treaties.  I told you earlier  44 that I don't, I don't recall whether there  45 was such a demand, specifically, and I want  4 6 to review that."  47 3799  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1  2  3  MR.  RUSH:  4  MR.  GOLDIE  5  THE  COURT:  6  MR.  GOLDIE  7  8  THE  COURT:  9  MR.  GOLDIE  10  11  THE  COURT:  12  MR.  GOLDIE  13  MR.  RUSH:  14  MR.  GOLDIE  15  MR.  RUSH:  16  THE  COURT:  17  18  MR.  GOLDIE  19  THE  COURT:  20  MR.  GOLDIE  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  2239 -- I think that, my lord, is in the next  volume.  What's the question?  :  2239, 2240, I believe is in the next volume, 5.  What are these pink pages at the back?  :  Those were pages made by the reporter of requests  for information.  Oh, I see.  :  It was just a matter of convenience for counsel, my  lord.  So we are going to volume 5.  :  Volume 5, yes.  Question 2239, 2240 in volume 5.  What's the page?  :  Page --  All right, I have it.  There is so much interjection and dialogue between  counsel.  :  It is page 549.  2239, thank you.  "2239  Q  At page seventy-five of the transcript of  February the 25, 1987, you were being  examined with respect to the Victoria paper  and I directed you to a quotation at page  105 in which you said, and I quote:  'Other  evidence of title today is the Chief's  knowledge of the exact locations of fishing  sites and hunting territory boundaries.  We  all have that recorded on our maps now.'  And then subsequently you were asked  whether these boundaries were recorded and  are you able to produce the maps that you  were referring to in 1983 as recording the  exact location of fishing sites and hunting  territories?  A  I believe, Mr. Goldie, that you have  received, with Marvin George's opinion  report locations of fishing sites, and  which would have referred to the maps at  that time; and with respect to hunting  territory boundaries, you, in the past  couple of days have produced a map that was  coloured that would be a general depiction  of the territories, but it will not be the  final depiction, because as I have already  said I am going through and doing a lot of  work to check and ensure that what I had 8800  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 put on maps was accurate in the knowledge  2 of the hereditary Chiefs, so the fishing  3 sites, I believe, the maps, I believe you  4 have.  The hunting territory boundaries,  5 the traditional boundaries I am finalizing  6 that now.  7 2240  Q  Well, the request that was made in February  8 and which was repeated on Tuesday of this  9 week was for production of the maps that  10 you referred to in 1983, and I, again,  11 direct you to the words 'boundaries  12 recorded on our maps now.'  And I, of  13 course, emphasize the word 'now' as  14 relating to the date of your paper; namely  15 December, 1983.  Now, I understand on  16 Tuesday, that request was being --  17 materials were being gathered together to  18 meet that request, so I am not interested  19 at the present moment in the final maps  20 which you are in the course of preparing, I  21 am asking you for the production of the  22 maps to which you referred to in December  23 of 1983."  24  25 There is no answer at that.  26  27 "MR. GOLDIE:  Can you assist me, Mr. Grant?  28 MR. GRANT:  Yes, I would like to come back to that  29 after the break.  I believe we have dealt  30 with that.  I have my, I do not have right  31 now my notes of that request, and the  32 response, and I will deal with that, if  33 that is all right with you, after the  34 break.  35 MR. GOLDIE:  Well, there was —  36 MR. GRANT:  That was, I think you were referring,  37 obviously, to page 105?"  38  39 My lord, that has become Exhibit 732.  40  41 "MR. GOLDIE:  That is correct.  And I am referring to  42 pages seventy-six through to seventy-eight  43 of the transcript of February the 25th,  44 1987, to which I made reference to Tuesday  45 this week.  46 MR. GRANT:  Yes, I appreciate you made reference to  47 question 471 and following, and I would 301  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:  MR. GOLDIE:  THE COURT:  MR. GOLDIE:  THE COURT:  MR. GOLDIE:  THE COURT:  MR. GOLDIE:  THE COURT:  MR. GOLDIE:  just like to have a chance to review my  notes on it.  That was, I looked at that  the evening of your request of this week,  and just have to go back to my notes on  it. "  Then question 2332, page 582.  My note on this list, the next question is 2239.  Well, I thought I just dealt with that, my lord.  I am sorry.  Yes, you did.  I am sorry, you are  right.  I am behind you.  2332?  2332 to 2381.  2332 is in.  Down to and including?  2381.  2349 has been read, yes.  And I will start at 2350.  Yes.  And this, my lord, had to do, just to refresh your  recollection, had to do with the completion of the  material necessary to produce a final map of the  internal boundaries.  That was what the preceding  context was.  "2350  2351  A  Q  2352  2353  A  Q  A  Q  A  Delgamuukw is now Kenny Muldoe; is that  correct?  That's right.  Now, you describe in the report the general  process beginning at page six, and you  state that on page seven that you tried to  record this preliminary information in a  hardbound field book.  What you have  produced this morning, and what you have  described as photocopies of pages from your  surveyor's note book that is what you mean  by the hardbound field book?  That's correct.  And then you go on to say -- and you are  now referring to follow up telephone calls  if I understand it correctly?  Um-hum.  That kind of information is recorded on  loose-leaf paper and bound in a three ring  binder.  Will you produce a copy of that?  Some of that will also appear in there."  I just pause there, my lord.  The witness was there  referring to files containing pages of material 8802  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 produced that morning which was the beginning of the  2 production of field notes which production was  3 completed, as we understand it, in September of this  4 year.  5  6 "2354  Q  Well --  7 A  You will find that there may also be some  8 telephone conversations where I confirmed  9 will also appear in there and there is, the  10 three ring binders, yes, I will.  The  11 information in those will be made available  12 as well.  13 2355  Q  And then you go on to say 'where possible I  14 try to have a map available during the  15 interview.' That is the ordinary  16 topographical map, is it?  17 A  Yes.  That's a map you can buy in the  18 office here (indicating).  19 2356  Q  Yes, and you sometimes photograph features,  20 as you state on page eight, and you  21 developed a topographic survey form, which  22 is Appendix B.  Can you indicate when that  23 form was developed?  24 A  It was in the late seventies that I  25 developed that map.  26 2357  Q  Right.  Thank you.  27 A  I don't know if -- the date may be on the  28 bottom or it may not be -- no,it isn't.  29 2358  Q  It only includes the title 'Gitksan-Carrier  30 Tribal Council'.  So, it must have been  31 before the name change?  32 A  Yes.  33 2359  Q  And when was the name change?  34 A  (NO ANSWER.)  35 2360  Q  Sometime after 1981?  36 A  Yes, it is, it's, I don't recall the date.  37 It might have been, I think, it was after  38 1981, yes.  39 2361  Q  And those topographical survey sheets have  40 all been kept; have they?  41 A  Yes.  42 2362  Q  And they are available for inspection?  43 A  Yes.  44 MR. GRANT:  They are part of the material that we  45 are putting together.  46 MR. GOLDIE:  All right.  47 2363  Q  And then at page nine after gathering this 8803  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 material up I gather you transferred it to  2 an intermediate map.  You say 'after', I am  3 referring, referring at page nine and I  4 quote:  'After completing an interview  5 the data are transferred to a map and the  6 appropriate forms which are then turned  7 over to a draftsman for final map  8 preparation.'  So that what goes to the  9 draftsman is a map plus these forms; 'these  10 forms' being the topographic survey forms?  11 A  That's right.  12 2364  Q  And it is from those that he works, subject  13 to your supervision?  14 A  That's correct.  15 2365  Q  And the map that is given to the  16 cartographer is the one that is described  17 at the top of page nine?  18 A  Yes, I assign numbers to a map or to  19 features on the map and they go with the  20 data forms, and that's what I present to  21 the cartographer.  22 2366  Q  So, he is working, as I said, from a one  23 over two hundred fifty thousand map on  24 which you have numbered the features plus  25 the topographic survey form, which assists  26 him in the identification process?  27 A  Yes, that's -- and well, basically that's  28 right.  He works from that scale and then  29 he works, works with a one to fifty  30 thousand scale.  31 2367  Q  Is the one to fifty thousand scale  32 uniformly used for the depiction of House  33 territories?  34 A Well, the proposal is one to fifty  35 thousand, hasn't been applied to the entire  36 territory.  It was difficult to obtain one  37 to fifty thousand over all and we have had  38 to order map bases in order to do that and  39 that's taken some time.  I don't know  40 whether one to fifty thousand is presently  41 available over all of the territory at this  42 time.  I don't know that.  Marvin would  43 know that.  44 2368  Q  Where did the Terra survey people that are  45 referred to in this appendix, or report,  46 where do they come into the picture?  47 A  They are not in my report. 8804  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 MR. GRANT:  They are in Mr. George's report.  2 MR. GOLDIE:  Oh, yes, that is right.  I am sorry.  3 It is Appendix (B) to Mr. George's report.  4 MR. GRANT:  And Mr. George, in his report,  5 explains --  6 MR. GOLDIE:  7 2369  Q  Well, my question is, are you involved --  8 of your own knowledge do you know why the  9 Terra survey people came into the process  10 that we are discussing?  11 A Marvin George deals with Terra.  I don't  12 have anything to do with them.  13 2370  Q  All right.  Thank you, is it fair to say  14 that you work most directly with the  15 Gitksan and he works with others when he  16 comes to the Wet'suwet'en?  17 A  Generally, I have done -- early on I did  18 work with the Wet'suwet'en and it became  19 very large job and others did the, a lot of  20 the detailed work on the Wet'suwet'en.  And  21 I have continued to be involved in that as  22 well, but the detailed work, it is a  23 different language.  24 2371  Q  Yes.  25 A  So, it was necessary to have Wet'suwet'en  26 persons doing the research, the detailed  27 research with them.  28 2372  Q  At page ten you say in the first paragraph,  29 and I quote:  'They used the same  30 techniques described above.'  Am I to take  31 it from that they did the same sort of  32 things that you have described that you did  33 with the Gitksan?  34 A  Yes.  35 2373  Q  How many people were used to --  36 A  Do you mean researchers or informants?  37 2374  Q  No, the people who are using the same  38 techniques that you used?  39 A At least two, perhaps three.  40 2375  Q  And who are they, please?  41 A  Gisday Wa, Alfred Joseph.  42 2376  Q  Yes.  43 A  Smogelgem, Leonard George.  44 2377  Q  Yes.  45 A Marvin George himself conducted some of  46 that work.  I am not sure if there were  47 more than that.  There has been different 8805  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 work done over the last few years and that  2 may not be all of them, but those,  3 certainly, they were central to that.  4 2378  Q  Well, are their notes comparable to your  5 notes and their identification of  6 topographical features on the map, will  7 they all be part of the material that you  8 are preparing now?  9 A  Yes.  10 2379  Q  How will they be identified when they come  11 to look at this material?  12 A  They will be identified as Wet'suwet'en  13 research by the person who conducted the  14 research.  15 2380  Q  Well, looking at Appendix (B), which is the  16 topographic survey form, where will their  17 name appear?  18 A  On the topographic survey form the name  19 would appear under interviewer (indicating)  20 if and if they are in there -- they have  21 a field book they happen to use, or so  22 other form and their name either ahead of  23 that in a group of information or on that  24 page.  25 2381  Q  I would ask you to be good enough to ensure  26 where the interviewer is not you and we get  27 a bundle of documents like this -- the  28 interviewer, or the person conducting the  29 interview, and the person is not you, it  30 will be so clarified.  31 A  It will be quite clear to you."  32  33 Question 2408 to question 2409.  34  35 "2408  Q  Now, on page six you say:  'Although I  36 initially referred to registered trapline  37 maps to lead me to specific informants I  38 have since concentrated on old boundaries  39 as described to me by the hereditary  40 Chiefs.'  So, in the case of some Houses  41 you consulted registered trapline maps?  42 A  In my early work I would, I would say that  43 I canvassed many, if not all, traplines.  44 2409  Q  Well, this refers to —  45 A  I am talking about going back to '75 or  4 6 whatever."  47 306  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.  MR.  MR.  MR.  MR.  COURT:  GOLDIE  RUSH:  GOLDIE  RUSH:  GOLDIE  And question 2455 to 2456.  2455, page 616.  "2455  Q  Mr. McKenzie has drawn to my attention on  page twelve, you say, and I quote:  'When I  returned to Hazelton in 1974 Mr. Harris  instructed me to continue the work and  allowed me make a copy of his map.'  And we have discussed that and then you go  on and say, and I quote:  'He also gave me  some of his notes.'  Are those notes still  in existence?  A  Yes, they are.  2456  Q  Have they been produced?  MR. GRANT:  In this material this morning?  MR. GOLDIE:  Yes.  MR. GRANT:  I will let Mr. Sterritt answer that.  I do not believe they have, but I am not  sure.  A  No, my intention -- I have number of things  that you requested that I am -- that are  part of what we assumed would be the  package as I finalized my report and got  this material together."  And volume 6 --  Just a minute, Mr. Goldie.  Thank you.  That's at page 673, question 2633 to 2644.  Just a moment, please.  Page 673.  Yes, thank you.  "2633  Q  The Writ is date-stamped May the 13th, if  you will refer to the first page,  Delgamuukw is no longer Albert Tait, is he?  A  That's correct.  2634 Q  That is Mr. Kenny Muldoe?  A  Yes.  2635 Q  Now, until Albert Tait's  two houses as alleged in  A  (NO ANSWER.)  MR. GRANT:  Three Houses.  MR. GOLDIE:  Well, three —  2636 Q  His own and that of Haaxw and Hage, Charles  Olson and Raymond Mowatt; is that right?  A  Yes.  2637 Q  Does Kenny Muldoe continue to speak on  behalf of the Houses whose names are born  death he spoke for  the Writ? 8807  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 by Charles Olson and Raymond Mowatt?  2 A  Yes, he does.  3 2638  Q  Was there any particular ceremony, or  4 event, that marked that, or did Kenny  5 Muldoe inherit the right to speak for those  6 two Houses when he became Delgamuukw?  7 A  I am not aware of what the family itself  8 did in that connection but there was a  9 feast and Ken Muldoe became Delgamuukw and  10 what the internal works of the family were  11 in that specific matter I can't say at this  12 point.  13 2639  Q  You filed an affidavit, though, when the  14 Writ was amended, while Albert Tait was  15 alive, and I believe you advised the Judge  16 that you were able to assure him that  17 Charles Olson and Raymond Mowatt had  18 consented to become represented by  19 Delgamuukw?  2 0 MR. GRANT:  Just a moment.  21 2640  Q  Charles Olson, I will go back to the  22 question of the evidence concerning Mr.  23 Justice Cumming; Charles Olson is  24 hereditary Chief and the head of the House  25 of Haaxw?  26 A  Charles Olson is a hereditary -- the head  27 of the House of Haaxw.  2 8 2 641  Q  And Raymond Mowatt is like-wise with  29 respect to the House of Hage?  30 A  Raymond Mowatt is a hereditary Chief and  31 the head of the House of Hage.  32 2642  Q  When you say 'Kenny Muldoe' can speak for  33 Charles Olson and Raymond Mowatt in respect  34 of their lands and the use to which they  35 put their lands; does that extend to  36 representing them at, for instance,  37 meetings of the Tribal Council?  38 A  Yes, it does.  I have seen instructions  39 from Haaxw or Hage saying that since Ken  4 0 Muldoe has become Delgamuukw, saying that  41 there is any difference in the relationship  42 and I -- but, what the, what the family  43 itself has discussed I am not aware of at  44 this time.  Since --  45 2643  Q  Yes.  To put it another way you have  46 received nothing which confirms that Mr.  47 Kenny Muldoe can speak with the same 8808  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 authority in respect of those other two  2 Houses as Albert Tait did?  3 A  I have received nothing like that, no.  But  4 that does not mean that the family has not  5 sat down and worked that out amongst  6 themselves.  I have been very busy on my  7 opinion report.  8 2644  Q  Yes.  How do you know that the family have  9 done this?  10 A  I didn't say that.  I didn't — I don't  11 know whether -- that doesn't say that the  12 family hasn't sat down and done that.  13 That's what I said."  14  15 Question 2680 to 2685.  16  17 "2680  Q  But when -- and I am now, my question is  18 now related to these Houses and by my count  19 there are sixteen Plaintiffs who speak for  20 themselves and their own House and for  21 other Houses, and we have talked about two  22 of those; Delgamuukw and Lelt, but there  23 appear to be sixteen in that category.  24 When -- and taking Fred Johnson, as Lelt,  25 as an example of that sixteen, when he says  26 in this lawsuit that the boundaries of his  27 territory are such and so and that the  28 boundaries of the territory of Luulak is  29 such and so, and the boundaries of the  30 territory of Haaxw are such and so, Lelt,  31 eventually as will be depicted on your map,  32 he speaks and binds all the members of  33 those three Houses; is that your  34 understanding?  35 MR. GRANT:  Go ahead.  36 A  Yes, that is my understanding that the  37 person who has been named as speaking for  38 that House will bind that House.  39 2681  Q  And if the Court at some later time  40 determines that there should be money paid  41 to Fred Johnson it will be he who  42 determines who gets what part of that  43 money?  44 A  The decision making that goes on within the  45 House will be determined by the hereditary  46 Chiefs and the members of the House and  47 I -- there is communication that would go 8809  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 on between Houses and House members and  2 where a House represents another House  3 if -- if a hypothetical situation was to  4 occur where money was the issue, then the  5 House would determine that along with the  6 hereditary Chief.  7 2682  Q  There seems to be a little difference  8 between the authority and Fred Johnson  9 under that circumstance and Fred Johnson  10 with respect to determining the boundaries  11 of the territories?  12 A Well, Mr. Goldie, I think there is a little  13 difference in the question that you were  14 putting and the, the outcome of, of the  15 aspect of this, the -- what I am talking,  16 telling you that at a given point in time  17 the hereditary Chief, if it was Lelt, would  18 be communicating with the House members and  19 for that reason I am assuming that the --  20 if Lelt's decision was binding on the House  21 there would be communication between the  22 House and House members and that, that is  23 the communication that is going on now.  It  24 would continue to go on and would have to  25 apply in circumstances like I am  26 describing.  27 2683  Q  Well, I suggest to you that there appears  28 to be a little difference in the nature of  29 the authority that Lelt could exercise --  30 as I understood it you told me that if he  31 gave evidence in this case and said that,  32 'the boundaries of my territory is such and  33 so, the boundaries of the territories of  34 Luulak is such and so, and the boundaries  35 of the territories of Haaxw are such and  36 so', that would be binding upon the members  37 of those three Houses; and I understood you  38 to agree with that?  39 A  That's, that's right.  40 2684  Q  All right.  Now, that indicates to me that  41 he has the authority to make that statement  42 and to indicate where the boundaries are,  43 and I understood you to say in response to  44 my questions about the distribution of  45 money that before there was any  46 distribution there would be a consultation  47 amongst the members of the Houses and the 8810  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 hereditary Chiefs?  2 A Well, Lelt himself would not, I don't  3 believe, that Lelt would -- if there was a  4 situation of compensation, that Lelt would  5 be the single person to decide what happens  6 to that money.  7 2685  Q  I see.  All I am getting at is I am seeking  8 your assistance in describing for me the  9 authority of the hereditary Chiefs in  10 relation to this lawsuit; do you follow  11 me?  12 A  Yes, I think I understand your question and  13 the, you know, there has to be, I think,  14 that you have to understand that there is a  15 system by which these people, the  16 hereditary Chiefs operate, there is a way  17 they deal with each other, and there is  18 communication, and making a decision about  19 even -- an example of Lelt making a  20 decision about boundaries would be sitting  21 down with Luulak and Haaxw and saying, you  22 know, 'this is what I am going to do',  23 and he would have a responsibility, based  24 on his discussion with those people.  25 Similarly it would apply in terms of any  26 outcome of a decision that was made in the  27 Court."  28  29 2690 to 2692.  30  31 "2690  Q  Have these relationships, as exemplified by  32 these particular set of Plaintiffs, are  33 these relationships set out in writing  34 anywhere, the subject-matter of any  35 discussions that you are aware of?  36 A  I want to be clear on the relation, could  37 you be clear on what you mean by 'these  38 relationships', Mr. Goldie?  39 2691  Q  Well, the relationship which is exemplified  40 by one, the head of one House speaking for  41 other Houses, is there any general rule  42 which has been understood and set down in  43 writing which gives rise to the right of  44 one chief to speak for other chiefs?  45 A  This —  46 2692  Q  Hereditary Chiefs, that is?  47 A  This, I think you have to refer to the 8811  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 hereditary Chiefs themselves.  I am  2 aware -- I mean I am speaking for myself --  3 I am aware that the hereditary Chiefs  4 themselves made comments about these  5 relationships in the Barbeau-Beynon files,  6 and I don't have those references on the  7 top of my head, but there are such  8 references in Barbeau-Beynon and what other  9 material I couldn't tell you right now.  10 But, there is, there are references."  11  12 "2699  Q  Would it be fair to say that these  13 relationships which give rise to the right  14 of one hereditary Chief to speak for the  15 members of another House are fairly  16 flexible and are determined by particular  17 circumstances -- and let me give you an  18 example; illness, is that one reason why  19 Albert Tait spoke for Charles Olson?  20 A  Yes, it is."  21  22 2701 to 2703.  23  24 "2701  Q  Well, perhaps that is confusing.  Let me  25 just stick with the question of age.  Is  26 age a consideration?  27 A Within the Gitksan and Wet'suwet'en system  28 the hereditary Chiefs are -- there are  29 different stages at which a person is  30 trained and develops and grows into  31 becoming -- you have to go through stages  32 to become a hereditary Chief, knowledgeable  33 hereditary Chief, and there -- and then  34 there are people, hereditary Chiefs who are  35 quite knowledgeable and been around for  36 sometime and are very familiar with the  37 culture and the place names and the  38 history.  As with any, any group, native or  39 non-native, younger persons are learning.  40 But, in our system we respect the  41 hereditary Chief and their knowledge, so  42 they speak in most, if not all,  43 circumstances on behalf of those younger  44 persons.  45 2702  Q  Yes.  So, age is a consideration in  46 determining who speaks for who?  47 A  Sometimes that is consideration. 8812  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 2703  Q  Yes.  What other considerations are there  2 that determine when one speaks for the  3 members of another house or another chief?  4 A  The nature of the occasion, the nature of  5 the circumstances."  6  7 Question 2707.  8  9 "2707  Q  So, by the time the trial of this action  10 comes on there could be further changes in  11 the identification of the Plaintiffs, quite  12 apart from death?  13 A  To the best of our ability, barring  14 death or illness, but subject to the, you  15 know, to the direction of the lawyers, or  16 of the family, primarily, death or illness,  17 the Plaintiffs who -- and I think with the  18 changes that Mr. Grant has identified to  19 you we should have pretty well -- that  20 should be the final list of Plaintiffs to  21 the best of our ability.  And let me say  22 also that even in these circumstances of,  23 let's say illness, that the Plaintiffs  24 wouldn't change, but that that family would  25 want to ensure that another knowledgeable  26 and respected elder would speak for that  27 family, or that House, or how they have to  28 have their interest represented in Court."  29  30 2728 to 2731, page 699.  31  32 "2728  Q  Mr. Sterritt, you have had an opportunity  33 of referring to the Statement of Claim, and  34 I referred you to paragraph fifty which  35 states that the Plaintiffs in certain  36 paragraphs are, apart from the Kitwancool  37 Chiefs, and I quote:  'The hereditary  38 Chiefs of the Gitksan.'  And my question to  39 you is are there any other hereditary  40 Chiefs besides those names in the Statement  41 of Claim?  42 A  Yes, there are.  I have reviewed those  43 numbers and one, three -- paragraph one,  44 three to six, eight to ten, twelve to  45 thirty-nine, forty-eight and forty-nine,  46 and they -- yes, they appear to be all of  47 the Plaintiffs.  But there are other 8813  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 hereditary Chiefs.  The other hereditary  2 Chiefs include the Kitwancool, which you  3 have already mentioned, but the answer to  4 your question is -- there are other  5 hereditary Chiefs.  6 2729  Q  And without giving me names or anything  7 like that, tell me more about them?  8 A Well, what I can tell you about them is  9 that they are represented by hereditary  10 Chiefs or Plaintiffs in this action and  11 there are Houses, there are Plaintiffs who  12 represent other Houses or hereditary Chiefs  13 in this action.  They are hereditary Chiefs  14 in those Houses and they are represented.  15 2730  Q  By virtue of being members of the House?  16 A  Yes.  17 2731  Q  But there are many, many more hereditary  18 Chiefs in the Gitksan nation than those  19 named in the Statement of Claim?  20 A  The interrogatories list those hereditary  21 Chiefs."  22  23 2783 to 2784.  24  25 "2783  Q  Chiefs can only come from a particular  26 class within the Gitksan nation?  27 A  That is a, that's a general rule, but it's  28 not a strict rule.  There are some  29 situations where the, as with any system,  30 where the Gitksan or Wet'suwet'en may  31 choose a person to be a hereditary Chief  32 for any number of reasons.  33 2784  Q  Can you give me an example of that, please?  34 A Well, if for example, for an example if  35 there is a need and a person is proving  36 themselves as an outstanding person in many  37 ways, they -- and a leader within the  38 House -- it could be that the House would  39 consider that person to be, should become a  40 hereditary Chief in a certain set of  41 circumstances."  42  43 2796 to 2797.  44  45 "2796  Q  Now, the question is, can a hereditary  46 Chief be created or made as such who is not  47 within that category or class? 8814  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  A  That would be a matter for the Gitksan or  the Wet'suwet'en hereditary Chiefs to  decide.  2797  Q  That is what I thought you said, and I  asked you to give me an example of that;  and I understood you to get this far, that  you said it has happened to your knowledge,  but you cannot give me an example?  A  Not right now."  "2800  Q  Mr. Grant uses the words 'head Chief —  what do you understand that to mean, Mr.  Sterritt?  A Well, I think generally, 'head Chief, the  hereditary Chief of the head of the House  might be considered a 'head Chief.  That  may be one way of putting it."  THE COURT:  MR. GOLDIE:  Q  2850 -  2850?  no, I have deleted that, my lord.  Delete 2850.  2922 to 292?  "2922  Q  You, yourself, are not the holder of a  trapline licence?  A  No, I am not.  2923 Q  Do you know who holds the trapline licences  in your House's territory?  A  No, I don't.  2924 Q  Does Pete Muldoe own one?  A  Pete might, but I don't know that.  I don't  know that.  2925 Q  Ken Angus?  A  I have never heard of Ken Angus.  2926 Q  Or Wallace Johnson?  A  I don't know if Wallace Johnson owns a  trapline.  2927 Q  John Heit?  A  I don't know if John Heit owns a trapline.  2928 Q  Norman Weget?  A  I don't know that."  My lord, that concludes the discovery, and Mr.  Sterritt, you understood that the arrangement that  we outlined yesterday continued today, that is to  say, that unless you said otherwise, you are taken  to have given the answer that I have read to you and 315  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1  2  A  3  MR.  GOLDIE:  4  5  6  7  8  9  10  THE  COURT:  11  MR.  GOLDIE:  12  THE  COURT:  13  THE  WITNESS  14  MR.  GOLDIE:  15  Q  16  17  18  A  19  Q  20  A  21  Q  22  23  24  A  25  Q  26  A  27  Q  28  29  A  30  Q  31  A  32  33  Q  34  35  36  A  37  Q  38  39  A  40  41  42  43  44  MR.  GOLDIE:  45  46  47  that the answers are true; is that correct?  Yes, yes.  My lord, I want to tender Exhibit 3 on Mr.  Sterritt's examination for discovery, it is the  plaintiff's document 1693, and it is a contract  between Gitksan-Carrier Tribal Council Association  and John J. Cove, and that is the Professor Cove who  is an expert retained in this case on behalf of the  plaintiffs.  C-o-v-e?  C-o-v-e, my lord.  Yes.  :  Yes, it is.  And that contract is entered into on, it looks like  April 13, 1978, and who signs as president of the  Tribal Council?  William Blackwater.  And at that time what was your position?  In 1978, I was the director of Land Claims.  And you didn't make any arrangements with Mr. Cove.  If I recall your evidence from yesterday, it was  made by Mr. Overstall and Mr. Ryan and others?  In relation to the court case work that he did?  Yes.  Yes.  Is the work that he was to do under this contract to  do with the court case?  No.  How are you able to identify that, please?  This work -- was the work that was identified here  to be done for a court case?  Yes.  With respect to this contract of employment,  is the work that Professor Cove was to undertake  related to or in contemplation of litigation?  No.  Has his report of the work that he has done under  that contract, was it filed with the Tribal Council?  I think we discussed that during the examination for  discovery and I am trying to recall.  I believe  there was one filed but I don't know whether we were  able to locate it.  There was a discussion on that.  I don't —  I think that was your recollection at the time or  report that you made at the time in 1987, that you  had been unable to locate it.  And I don't think  that I made a request for its production but I do so 316  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  now in case the document is turned up in the  meantime.  And in the mean time, I tender that as an  exhibit, my lord.  THE REGISTRAR:  Exhibit 758, my lord.  THE COURT:  Yes.  (EXHIBIT 758 - CONTRACT BETWEEN GITKSAN-CARRIER  TRIBAL COUNCIL ASSOCIATION AND JOHN J. COVE)  MR. GOLDIE:  There is one other matter of -- that I should deal  with.  I don't think yesterday I tendered as an  exhibit Mr. Sterritt's field note of his interview  with Mr. Art Kusik on November 2, 1982, which is the  first document under tab 16 of the brown document  book and I tender that as an exhibit at this point,  my lord.  THE COURT:  Thank you.  That will be Exhibit 759.  THE REGISTRAR:  759, my lord.  (EXHIBIT 759  NEIL STERRITT'S FIELD NOTE OF  INTERVIEW - NOV. 2, 1982)  MR. GOLDIE:  THE  THE  COURT:  And under tab 18, although some references were  made to it, I don't believe there were marked as a  single exhibit the ten pages of data sheets,  topographic survey, Gitksan territories, all dated  May 22, 1983, and all recording information in  respect of which Mr. Walter Blackwater was the  informant.  I tender those ten pages, my lord, as a  single exhibit.  All right.  REGISTRAR:  Exhibit 760, my lord.  (EXHIBIT 760  DATA SHEETS, TOPOGRAPHIC SURVEY  GITKSAN TERRITORIES MAY 22, 1983)  MR. GOLDIE:  THE COURT:  MR. GOLDIE:  There is one other point that I may take the  opportunity of commenting on.  Your lordship may  recall that there was a direction given that the --  at the plaintiff's request that the document list  should, if possible, come to an end by today.  I had not recalled that.  I will refresh your lordship's recollection.  It is  volume 117, and it was June 27, 1988, and at page  7308, it appeared that there was a discussion back  and forth and the upshot of it was that -- that your  lordship was prepared to make an order that 8817  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 discovery, that's document discovery, be completed  2 by October 15 with appropriate safeguards,  3 appropriate safeguards meaning that people could  4 disclose documents late but might have to obtain an  5 order of the court.  And the suggestion was made in  6 Mr. Adams' absence that he draft an order to that  7 effect.  He's been unable to do so and my only point  8 in referring to it is this:  We have endeavoured to  9 complete the document disclosure by today.  There  10 may be one more supplementary list in the works  11 today.  I am reasonably satisfied that we have got  12 all that are relevant.  There is one exception in  13 this sense:  The Province undertook to have a  14 complete collection of colonial orders in council  15 gathered together in which -- to which any reference  16 occurs that affects Indians throughout the province.  17 Those which relate to the claims area have been  18 separately listed as they came along from time to  19 time.  But I am going to write to my friends and say  20 that this collection is available, provide them with  21 an index and, if they think that a pre-emption in  22 the Okanagan has some bearing on the issues in this  23 case, they are free to have the document.  24 There is a matter which is outstanding which I  25 trust that my friends can address if we are going to  26 follow the suggestion made by Mr. Rush with respect  27 to scheduling, and that is not only the order of the  28 witnesses who will be called for cross-examination  29 but also the requests that we have made with respect  30 to Wet'suwet'en information, tapes.  Mr. Mackenzie  31 set this out in his letter of September 21, 1988,  32 and we are anxious to -- we are more than anxious,  33 we want to ensure that we do not have a repetition  34 of the Walter Blackwater matter where, if we had had  35 the tape of his interview with Mr. Sterritt of May  36 1983, the character of the cross-examination would  37 have been totally altered; and it is also of  38 importance and significance that we get these tapes  39 that have been made, and they appear to be many of  40 the Wet'suwet'en witnesses, in good time so that we  41 can determine those who are able to give their  42 evidence in English.  43 Subject to that, my lord, I -- oh, yes, Ms.  44 Sigurdson has pointed out to me that I have not  45 dealt finally with the transcript of the  46 cross-examination of this witness before Mr. Justice  47 Cumming.  I think that was -- it is in the first N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1  2  3  4  5  MR.  RUSH:  6  7  THE  COURT:  8  MR.  GOLDIE  9  THE  COURT:  10  MR.  GOLDIE  11  THE  COURT:  12  MR.  RUSH:  13  MR.  GOLDIE  14  15  16  THE  COURT:  17  MR.  GOLDIE  18  19  THE  COURT:  20  21  MR.  GOLDIE  22  THE  COURT:  23  MR.  RUSH:  24  THE  COURT:  25  THE  regist:  26  MR.  GOLDIE  27  28  29  30  31  MR.  GOLDIE  32  33  34  35  36  37  38  39  40  41  42  43  44  THE  COURT:  45  46  47  MS.  KOENIG  document book under tab 3.  I think my friend was  considering his position with respect to the  completion of that transcript and whether he  warranted the re-examination to go in.  Yes.  I think if my friend is going to put it in, I  think everything should go in.  In the first document book.  In the black document book under tab 3.  Yes.  So accordingly, I tender that as an exhibit.  All right.  Re-examination --  The re-examination is I believe there.  Well, I am  sorry, I thought there was but the last page seems  to have Mr. Grant in mid flight so to speak but --  Well, the top of page 38.  Re-examination appears to conclude at the top of  that page 39.  I think it is completed, my lord.  It looks like it starts at the page -- top of page  38, does it?  Yes.  Are you satisfied, Mr. Rush?  Yes, it looks to be the case.  All right.  Well, that will be Exhibit 761.  IAR:  761, my lord.  Thank you, my lord.  (EXHIBIT 761 - TRANSCRIPT OF CROSS-EXAMINATION  OF WALTER BLACKWATER BEFORE MR. JUSTICE CUMMING)  I have just a couple of more points.  We are still  going through the field notes that have been  produced and not -- there is not so much a question  of not being able to read them, it is a question of  correlating them with earlier extracts.  We may  wish, on Mr. Sterritt's resumption of his  examination, to tender further extracts from field  notes.  I believe there is a request to my friend  which is outstanding and that is the index to the  Gitksan-Wet'suwet'en Tribal Council library, and the  map that is referred to in the plaintiff's document  list 418.  I think my friend indicated there is  inquiries still in hand.  All right.  Now, what's intended now, Ms.  Koenigsberg will cross-examine?  How long do you  expect to be, Ms. Koenigsberg?  >BERG:  Half an hour to an hour depending on how we go 319  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:  MR. RUSH:  along.  Yes, and what is intended with respect to  re-examination, Mr. Rush?  Are you able to resume --  are you able to commence your re-examination or are  you able to stand down until Mr. Goldie finishes his  cross?  I think so to do the latter.  As I understand Mr.  Goldie's reservations, if I can put it that way,  there are basically the band council resolutions,  the contracts; he wishes to perhaps enter further  audio tapes; and he advises now that there may be  field notes that he extracts or field notes that he  wants to put in.  And for those reasons I would not  want to commence my re-examination until that's  completed.  All right.  I should advise your lordship as well that I have  some comments to make about one of the items that my  learned friend raised just a moment ago and you  might want -- do you wish to hear it now?  No.  I think the reporters have a sequence and it's  time that they changed, and I have made arrangements  to meet a group at the morning adjournment so  perhaps maybe we should do that and I will hear you  as soon as we resume.  All right.  We will adjourn  for the morning adjournment.  Thank you.  THE REGISTRAR:  Order in court.  This court stands adjourned for  the morning recess.  (PROCEEDINGS ADJOURNED AT 11:20 A.M.)  I hereby certify the foregoing to be  a true and accurate transcript of the  proceedings herein, transcribed to the  best of my skill and ability.  THE COURT  MR. RUSH:  THE COURT:  TANNIS DEFOE, Official Reporter  United Reporting Service Ltd.  (PROCEEDINGS RESUMED PURSUANT TO MORNING RECESS) 8820  N.J. Sterritt (for Plaintiffs)  Cross-exam by Ms. Koenigsberg  1  2 THE REGISTRAR:  Order in court.  3 THE COURT:  Ms. Koenigsberg.  4 CROSS-EXAMINATION BY MS. KOENIGSBERG:  5 Q    My lord, I have put together some documents which I  6 may refer to and ask the witness to identify.  And  7 just for convenience, I have put them in a book and  8 I will attempt to recall to mark them as exhibits if  9 it's appropriate.  10 Mr. Sterritt, I would like to explore with you  11 your role as the director of land claims, your role  12 as president of the Tribal Council, and both of  13 those roles in relation to the research for land  14 claims for which you have been responsible.  Now,  15 we've had your evidence actually in a number of  16 places and in a number of times about your having  17 conducted or been responsible for the conduct of  18 research on behalf of the Tribal Council for land  19 claims since 1975, is that a correct  20 characterization?  21 A    Yes.  22 Q    That research, if I may attempt to put it into broad  23 categories, of course was related to establishing  24 the basis for land claims for the Gitksan and  25 Wet'suwet'en people?  26 A    Yes.  Yes, that would be right.  27 Q    And was researched to discover and document the  28 historical and traditional uses of the land claimed  29 by the Gitksan and Wet'suwet'en and its boundaries?  30 A    To -- read that again, please?  31 Q    To document -- to discover and document the  32 historical and traditional uses of the land claimed  33 by the Gitksan and Wet'suwet'en and its boundaries?  34 A    Yes.  35 Q    And part of that research related to those two  36 topics I have already outlined would be tracing the  37 ancestry of the people to the use of the land?  38 A    Yes.  39 Q    And to developing, discovering and documenting the  40 rules or laws by which the people lived on the land  41 and established their boundaries?  42 A    Yes, that would be right.  43 Q    I'm not attempting, Mr. Sterritt, here to limit the  44 areas of research which you may have covered, but I  45 am attempting to summarize, if I may, the focus of  46 the research and the research programs which you  47 developed beginning in 1975. 8821  N.J. Sterritt (for Plaintiffs)  Cross-exam by Ms. Koenigsberg  1 A    Well, I didn't -- well, commencing then, but we  2 didn't begin to frame those areas until after I  3 became the director of land claims in 1977.  4 Q    Yes.  You established, if I can put it this way, an  5 external boundary by 1977 and began more extensively  6 to, if I can put it again, discover and document the  7 historical traditional uses of that land within the  8 boundaries?  9 A    I don't know whether I could be as precise as that.  10 In the 19 -- what I was doing all along myself was  11 identifying place names, geographical features, that  12 was a particular area that I worked on.  In terms of  13 as to when we began to focus on the subject matter  14 that you've just described in your last sentence,  15 your last statement, that would have been later,  16 possibly around 1979 or 1980, somewhere around  17 there.  18 Q    All right.  I would like to put to you that the  19 backbone, if I can, or perhaps even the whole body  20 of that research of the areas that I've outlined,  21 and I am accepting for the purposes of this question  22 that we began in some form in 1975 and the concepts  23 progressed with the research, I am accepting that in  24 my question.  But I would suggest to you that the  25 backbone, the whole really of that research has been  26 based on the knowledge of the elders, the oral  27 traditions and your gathering of that?  28 A    Yes, that has been a central part of the work that  29 has been conducted.  3 0 Q    And —  31 A    The information of the hereditary chiefs, their  32 knowledge, their understandings.  33 MS. KOENIGSBERG:  Yes.  And —  34 THE COURT:  Well, are you drawing a distinction between what Ms.  35 Koenigsberg described as elders and you said were  36 hereditary chiefs?  37 THE WITNESS:  Well, when I said hereditary chiefs I should have  38 said basically the people.  No, I am not really  39 drawing a distinction.  4 0    THE COURT:  Yes, thank you.  41 MS. KOENIGSBERG:  42 Q    And I would suggest to you that there are elders who  43 may not be hereditary chiefs who have been  44 interviewed and whose knowledge would be as valuable  45 as a hereditary chief's knowledge, depending on the  46 actual interview and the amount of information you  47 were able to get.  You didn't make a distinction 8822  N.J. Sterritt (for Plaintiffs)  Cross-exam by Ms. Koenigsberg  1 between hereditary chiefs and elders, your thrust  2 was to obtain and document the evidence, the  3 knowledge, of the knowledgeable Gitksan and  4 Wet'suwet'en people?  5 A    Yes, that would be true.  6 Q    And the focus of your research became, probably  7 beginning about 1979, the conducting of interviews,  8 the documenting of those interviews, the taping of  9 those interviews to create, I think what you have  10 described as a legacy?  11 A    I don't know whether I have described it as a legacy  12 or not, but -- not of my research.  13 Q    Well, let me just put a document which is dated  14 January 1983, it is a Gitksan-Carrier Tribal Council  15 newsletter.  Let me put that in front of you and we  16 can perhaps proceed from there.  That's at tab 6, my  17 lord.  You were president of the Tribal Council in  18 January of 1983?  19 A    Yes, I was.  20 Q    And you had written and had published in this  21 newsletter your Christmas message.  You called it  22 the "President's Message."  And we see a photocopy  23 of a photograph of you, I suppose, delivering this  24 message on the front page; is that correct?  25 A    That's a photograph of me at the annual convention.  26 The letter that is there is something that I wrote  27 to the people at Christmas.  They just -- the speech  28 there and the letter aren't connected.  29 Q    And just to look at the content of your Christmas  30 message, and just skipping down to the second full  31 sentence:  32  33 "The past year has been busy but satisfying.  34 The most satisfying activities of the past  35 year are those involving the elders.  We in  36 Tribal Council have been fortunate to be able  37 to work with the elders to outline and detail  38 the fishing stations and hunting grounds  39 that belong to the Simgiget.  40 This work will be valuable for future  41 generations of Gitksan and Carrier People.  42 It is a legacy from our..."  43  44 I assume that's "people" underneath the hole in the  45 paper?  46 A    It could be people or past, I don't know.  47 Q    Yes, it probably is past. 8823  N.J. Sterritt (for Plaintiffs)  Cross-exam by Ms. Koenigsberg  1  2 "...from our past that none can dispute.  It  3 is a powerful legacy that conveys the spirit  4 of thousands of years of survival and growth  5 in our 22,000 square miles of territory.  The  6 legacy of names ..."  7  8 MR. RUSH:   "This legacy."  9 MS. KOENIGSBERG:  10 Q "...this legacy of namesof lakes, creeks and  11 mountains transforms what they Europeans  12 consider to be empty wilderness into a land  13 as familiar as our own backyards, a land with  14 distinct Indian identity."  15  16 Just stopping there, I have read that part of your  17 letter accurately, have I?  18 A    Yes.  19 Q    I took it from reading that that you had indeed  20 participated both directly as an interviewer and  21 indirectly as the supervisor of the research and  22 certainly one of the, if I can put it this way,  23 architects of its parameters, that is the research?  24 A    Well, at this point I'm referring to the work that I  25 had been doing that Alfred Joseph and Leonard  26 George, I'm not sure just what time frame Glenn  27 Williams fits into there, but I'm basically  28 referring to the research in that area.  29 Q    Yes.  And if I can just back up a little bit because  30 I would like to trace with you -- I mean from  31 January of '83, I would like to trace with you the  32 development and the research and your participation  33 in it.  Without excluding anything which may be an  34 important strand of research, I have understood from  35 reviewing these documents that there were really  36 three major areas of research, one beginning in  37 about 1979 was the fishing management study, and  38 that involved conducting exstensive interviews with  39 elders and hereditary chiefs and other people as to  40 locations of their fishing stations, their  41 traditional fishing practices, et cetera?  42 A    That was the work under the supervision of Mike  43 Morell.  44 Q    That's right.  And, in fact, in a newsletter of 1982  45 there is lengthy mention of a person by the name of  46 Harry Daniels who was said to have conducted many of  47 the interviews of the elders? 8824  N.J. Sterritt (for Plaintiffs)  Cross-exam by Ms. Koenigsberg  1 A    Yes, I think Harry worked for -- Harry worked for  2 Mike Morell.  3 Q    Yes.  And Mike Morell was the fishing biologist that  4 the Tribal -- whom the Tribal Council hired to  5 assist in looking at the Gitksan-Wet'suwet'en  6 fishery, and to make recommendations with regard to  7 the way in which it should be conducted; is that  8 correct?  9 A    Yes.  10 Q    And that study that Mike Morell was involved in had  11 two areas, two aspects, one was technical, that is  12 related to the biology of the fish and their  13 habitat; is that correct?  14 A    Yes.  15 Q    And the other was exstensive interviewing and  16 looking at traditional and contemporary Indian  17 fishing practices; is that correct?  18 A    Yes, there was -- that was part of the  19 investigation.  20 Q    And so if I can put this as one of the earlier  21 focuses for the research which you were in charge  22 of, it was initially exstensive interviewing  23 relating perhaps not exclusively, but in large part  24 to documenting traditional fishing sites and fishing  25 practices?  26 A    Yes, I think that's correct.  Yeah.  27 Q    And there were a number of people involved in that  28 interviewing process, Harry Daniels being one of  2 9 them?  30 A    Yes.  31 Q    And did you personally conduct, that you can recall,  32 any of the interviews of the elders or hereditary  33 chiefs with regard to their traditional fishing  34 sites?  35 A    No.  Well, no, I shouldn't say that.  The -- any  36 discussion that I held in relation to territories or  37 fishing sites are contained in my field books.  My  38 focus was not on fishing sites, it was more on the  39 territories, but I did get some fishing site  40 information.  I got it as early, I think, as 1975.  41 And -- but generally I did not focus on fishing  42 sites.  But what I did get is in my field books.  43 MS. KOENIGSBERG:  All right.  And if I can just read to you,  44 again, this is from a February '82 newsletter, and I  45 will put a copy of it in front of you.  I don't know  46 if you are the author of this particular article or  47 not. 325  N.J. Sterritt (for Plaintiffs)  Cross-exam by Ms. Koenigsberg  Is it in the book?  1  MR. RUSH  2  MS. koen:  3  Q  4  A  5  Q  6  7  8  9  A  10  Q  11  12  A  13  Q  14  15  16  A  17  18  19  Q  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  A  No, it's not.  I will just give you a copy here.  Is this a cover page to this?  Is that what this is?  Yes, I believe that's the front page.  And the  article that I'm referring to is on page seven  headed:  "Harry Daniels Talks About Fish Management  Study."  Yes, I have that page.  Did you happen to be the author of this particular  article?  No.  Okay.  There doesn't appear to be authorship  attributed in this document.  Are you familiar with  this article?  I'm not familiar with it.  I'm sure that I read it  at the time, but I haven't seen this article since  then.  Okay.  Let me read just a short part of it and ask  you if it accords with your understanding and  knowledge of what Harry Daniels was doing.  "I asked Harry what he was doing..."  This is the second full paragraph.  "...he told me, "I'm interviewing our Elders  who have traditional fishing grounds from  Chicago Creek, just below South Hazelton to  Legate Creek near Terrace".  Harry added,  "the purpose of my interviews is to document  ownership of these fishing grounds in  Historical times and who are really in charge  of them today."  And then just the next paragraph:  "In addition, Harry advises that the team of  researchers are also examining how our  ancestors managed our Fish resources and the  manner in which the fishing grounds were  passed down from generation to generation."  Now, did you understand that that was the purpose of  the interviews being conducted by Harry Daniels and  others in relation to the fish management study?  I think that's pretty close.  The purposes were 8826  N.J. Sterritt (for Plaintiffs)  Cross-exam by Ms. Koenigsberg  1 outlined in the terms of reference to Mike Morell,  2 and it sounds pretty close to it.  I would have to  3 say that -- yes, I would say that it's fairly close.  4 Q    Okay.  And so we had one strand of research going on  5 from 1979 certainly through 1982 and perhaps later  6 that was focused on fishing, if I can put it that  7 way, and that was related and ended up in a report  8 on the fish management study; is that correct?  9 A    Yes.  10 Q    And is it fair to say that the interviews of both,  11 some of which you conducted which are in your  12 fieldnotes, some of that information ended up -- you  13 gave that information, I assume, to Mr. Morell or  14 his researchers?  15 A    I didn't do much on fishery, and I don't recall  16 whether I would have handed that on to Mike or not.  17 I just don't remember.  18 Q    All right.  So —  19 A    It was never very much.  I was concentrated more on  20 the territories.  21 Q    So you didn't actually have a programme in place, if  22 I can put it that way, whereby if you came across  23 information related to ownership of a traditional  24 fishing site that you would automatically flag that  25 to be given to the researchers working on the fish  2 6 management study?  27 A    We didn't have such communication set up, but I  28 certainly -- I probably communicated verbally to  29 Mike, and I don't recall to what extent any more  30 than that.  I just don't recall.  31 Q    Well, you certainly were one of the people who was  32 involved in having this fish management study done;  33 is that correct?  34 A    Well, I was quite involved in originating the fish  35 study, heavily involved in that and in framing the  36 terms of reference.  And then in the period to 1979  37 or 1980 I was busy on a number of things.  Gary was  38 supervising this, and I was relating to Gary in  39 terms of this study.  40 Q    When you say "Gary," do you mean Gary Patsey?  41 A    Yes, Gary Patsey.  I then in 1981, as I've mentioned  42 already, I resigned from the Tribal Council from my  43 position and came back in the fall of '81.  At that  44 point Don Ryan was executive director and he was  45 overseeing virtually all of the projects within the  46 Tribal Council at that point, and Gary Patsey was  47 still involved. 8827  N.J. Sterritt (for Plaintiffs)  Cross-exam by Ms. Koenigsberg  1 Q    Yes.  But you certainly were familiar with the  2 nature of the research that was going on in relation  3 to fishing?  4 A    Yes.  5 Q    And in relation to these interviews and the  6 documentation of the interviews, it would be your  7 understanding that there might be other uses for  8 those interviews as well?  In other words, when  9 you -- when an elder or hereditary chief is being  10 interviewed with regard to traditional practices, it  11 would be likely that the interviewer would come  12 across the information relating to fishing sites and  13 perhaps hunting grounds at the same time?  14 A    That may have happened, but I -- I did not -- that  15 material was under the supervision of Mike and that  16 was never brought to my attention.  17 Q    Okay.  The second area of research beyond the  18 fishing management study is one that I would put  19 under the category of census information.  And in  20 about 1979, as I understand it, a programme was  21 instituted to train Gitksan and Wet'suwet'en people  22 as researchers, what one might roughly call social  23 science researchers, so that they could conduct  24 research related under the heading of a census of  25 the Gitksan and Wet'suwet'en people?  26 A    Well, census would be a pretty loose term because  27 really what they were doing was a social and  28 economic survey of the conditions of the Gitksan and  29 Wet'suwet'en.  I don't know whether -- while it was  30 referred to as a census, it really was more of a  31 survey.  32 Q    Yes.  33 A    Of the social and economic survey, the housing on  34 the reserve, employment levels, unemployment levels,  35 that sort of thing.  36 Q    Okay.  If you would turn to tab 8 in your book,  37 there is a document which is entitled "Proposal For  38 Educational Funding"?  39 A    Yes.  40 Q    And you are said to be the -- you are making the  41 application as the land claims director at that  42 time; is that correct?  43 A    That's right.  44 Q    And this is your document, that is you are the  45 author of it?  46 A    Yes, I am.  47 Q    And I'm not sure there is a date.  Yes, I don't 32?  N.J. Sterritt (for Plaintiffs)  Cross-exam by Ms. Koenigsberg  1 believe there is a date on this document.  But my  2 assumption is that it is probably in 1981 because it  3 makes reference to you already having sent  4 researchers to Ottawa in 1979 and then -- well, I'm  5 sorry, it would be 1980 because it goes on in the  6 second full paragraph and it says:  7  8 "Data analysis and reporting from the census  9 results will be completed in September,  10 1980."  11  12 Can you help me with the date?  13 A    The only way I could help you with the date is that  14 on page 2 the programme talks about starting on the  15 1st of October of 1980 and fishing on the 31st.  So  16 I'm assuming that this proposal is sometime in the  17 year 1980 prior to the 1st of October.  18 Q    Okay.  19 A    That's the best that I could do on that.  20 Q    And perhaps to get a handle on the scope of the  21 census research and its relation to land claims, we  22 can just look at the first three paragraphs of this  23 application.  The first paragraph:  24  25 "In 1979 the Gitksan-Carrier Tribal Council  26 sent six trainees to Carleton University for  27 a ten week programme in research methods.  28 The course prepared them to do contemporary  29 research on their home communities, and a  30 census was conducted in 1979-80 to provide a  31 social-economic profile of the Gitksan and  32 Carrier."  33  34 And that's what we've just talked about?  35 A    Yes.  36 Q    You then go on to say that:  37  38 "Data analysis and reporting from the census  39 results will be completed in September, 1980.  40 The Tribal Council proposes to then begin a  41 historical study which will last 18 months.  42 This will be done to acquire information  4 3 needed to make and implement development  44 policies which are based on the culture and  45 Traditions of the Gitksan and Carrier  46 peoples."  47 8829  N.J. Sterritt (for Plaintiffs)  Cross-exam by Ms. Koenigsberg  1 And I take it that you are there proposing the next  2 level of research which would be conducted?  3 A    That's what that seems to be, yes.  4 Q    And without going into the details of this  5 application, the purpose of obtaining money in this  6 application was to -- for further training of the  7 same researchers to develop their skills so they  8 could go on and do historal research?  9 A    Yes.  10 Q    I mean historical related to the culture and  11 traditions of the Gitksan and Wet'suwet'en people?  12 A    Yes.  13 Q    And so in the next paragraph we have:  14  15 "Consistent with its past efforts, the Tribal  16 Council desires that the historic research be  17 conducted by its own people; specifically six  18 members of the present research team who have  19 training and experience in general research  2 0 methods."  21  22 And you go on to say that they wouldn't have all of  23 the skills yet to conduct that research and they  24 should have more in-depth training and you are  25 applying for assistance in that regard; is that  26 correct?  27 A    Yes.  28 Q    And you obtained assistance and these people did go  29 on to conduct historical research?  30 A    I don't recall whether this project was actually  31 carried out.  I think it was, but --  32 Q    Well, certainly a programme of formal interviews to  33 to be taped, transcribed and kept was conducted  34 between 1980 and 1984; is that correct?  35 A    Well, I am just trying to remember whether this  36 programme actually went ahead.  I mean this is an  37 application.  38 Q    Yes.  39 A   And I think that it did.  I am looking at the names  40 on page 3.  41 Q    The names of the researchers?  42 A    No, the instructors.  43 Q    Oh, the instructors?  44 A    I think this did go ahead, yes.  45 Q    Okay.  And in any event, assuming that it went  46 ahead, interviews were conducted by these  47 researchers; is that correct? 8830  N.J. Sterritt (for Plaintiffs)  Cross-exam by Ms. Koenigsberg  1 A    Yes, I believe so.  2 Q    And if we look at -- I'm not, you'll be glad to  3 know, go through this whole programme in detail, but  4 if we look at tab seven, this is at least the second  5 of several reports.  This is called the "Final  6 Report To Resource Development Project Planning  7 Fund" and it's date May of 1982.  Are you familiar  8 with that document?  9 A    Yes, I've seen that before.  10 Q    Did you have any part in its -- are you one of the  11 authors?  12 A    No, I'm not.  13 Q    You were Tribal Council president when it went  14 forward?  15 A    Yes, I was.  16 Q    And if we look at page 16 -- I'm sorry, if we start  17 on page 15 under the heading:  18  19 "5.  Documentation of the Gitksan-Carrier  20 Legal and Authority System:",  21  22 we see:  23  24 "The Gitksan-Carrier legal and authority  25 system is inextricably linked to  26 territoriality and resource management.  27 A comprehensive picture of this system is  28 being drawn from information provided by  29 elders and chiefs and from earlier fieldnotes  30 and published and unpublished literture.  To  31 date..."  32  33 Now we are speaking of May of 1932.  34  35 "...thirty-four chiefs and elders have give  36 interviews of up to five sessions and ten  37 hours."  38  39 I take that to be each, does that accord with your  40 understanding?  41 A    I don't — I don't know.  42 Q    And you wouldn't have been able to complete 34  43 interviews in five sessions, would you?  If so, we  44 would like to know how you did it because we have  45 got a daunting task ahead of us.  46  47 "Each interview is taped in the informants own 8831  N.J. Sterritt (for Plaintiffs)  Cross-exam by Ms. Koenigsberg  1 language and then is translated and  2 transcribed by the interviewer."  3  4 You understood that to be the process, isn't that  5 correct?  6 A    Yes.  7 Q    And then there is considerably more that is going to  8 be done with these interviews as is explained, that  9 is that:  10  11 "The fieldnotes of Marius Barbeau and William  12 Beynon are being studied systematically both  13 to verify information arising from interviews  14 and to provide points for investigation in  15 interviews."  16  17 You are certainly familiar with that process?  18 A    Yes, I don't know whether that was done, though.  19 Q    But you are familiar with that process, being  20 familiar yourself with the -- what I referred to as  21 the Barbeau-Beynon materials?  22 A    I am familiar with that material, yes.  I don't know  23 whether they actually did that.  24 Q    That's right.  But you certainly have had resort to  25 those materials in your research to verify and  26 perhaps get further information for some of the  27 interviews that you conducted?  2 8 A    I have reviewed them.  I have reviewed the  29 Barbeau-Beynon files, gone through them, not  30 necessarily to verify what I am hearing from a  31 hereditary chief, but simply to see what they say  32 and I have relied on the information of the  33 hereditary chiefs.  34 Q    All right.  And then you go onto say:  35  36 "Investigation into the indiginous laws  37 governing rights of occupation and use cover  38 the following general topics:  territorial  39 boundaries and boundary changes within the  40 system; access to specific territories;  41 conditions placed on access; transfer of  42 territorial rights; relations with other  43 Indian nations; and enforcement of rules with  44 the focus on property.  45 We are finding that a high degree of  46 continuity in the legal and authority  47 structure has existed from the nineteenth 8832  N.J. Sterritt (for Plaintiffs)  Cross-exam by Ms. Koenigsberg  1 century to the present."  2  3 If we can return to the interviews, it is -- was  4 from the process of gathering and documenting these  5 interviews with elders and hereditary chiefs that  6 you were verifying and documenting the indiginous  7 laws, the rights, all of those things which you have  8 told us about over the last many weeks make up, at  9 least part, if not all, of the Gitksan-Wet'suwet'en  10 culture as it relates to its holding of land and  11 land claim?  12 A    That was a project that was going on under -- I  13 don't know if it was Scott Clark, but certainly  14 under Peter Grant.  Peter was supervising that  15 project.  16 Q    Yes.  17 A   And that was information that they were gathering,  18 but —  19 Q    You were certainly aware of that?  20 A    Oh, I was aware of it, yes.  21 Q    And many of the things you were doing yourself, Mr.  22 Sterritt, paralleled and sometimes overlapped what  23 these researchers were doing, isn't that correct?  24 A    Well, to the extent that I was doing -- I was  25 talking to people, getting information and that it  26 may have overlapped what was happening here, that's  27 true.  But I was doing -- I was gathering  28 information and going on with my other activities as  29 president.  I don't know to what extent it  30 overlapped.  I never saw the data that was being  31 gathered here, it was under the supervision of  32 Peter.  33 Q    When you say "data,"  we are referring to the  34 interviews?  35 A    Yeah.  36 Q    I am not referring to the analysis of any  37 interviews, but the actual interviews themselves?  38 A    No, I never saw those.  39 Q    But you did contribute to them?  40 A    I -- no, I don't know whether or not Peter used my  41 information.  He might have.  He might have asked me  42 questions.  43 Q    Okay.  If we can back up, perhaps you can clarify.  44 I guess it was yesterday afternoon Mr. Goldie was  45 reading from your examination for discovery, and  46 questions 91 through 94 were these:  47 8833  N.J. Sterritt (for Plaintiffs)  Cross-exam by Ms. Koenigsberg  1 "91    Q   You yourself conducted interviews with  2 tribal elders?  3 A   In my capacity as director I developed a  4 research programme.  5 Q   My question was, did you ever interview  6 tribal elders as part of that programme?  7 A   On a limited basis I did.  8 Q   And you interviewed some of the  9 hereditary chiefs?  10 A   There were some interviews."  11  12 When you gave those answers, were you referring to  13 some interviews that you yourself did conduct?  14 A    Well, that's the interviews that appear in my  15 fieldnotes --  16 Q    Yes.  17 A    -- over a number of years.  18 Q    Yes.  19 A   And then the interviews that appear in the looseleaf  20 notes.  21 Q    So if there is comprehensive interviews of David  22 Gunanoot, a hereditary chief and an elder, that you  23 have conducted which cover the topics of  24 territoriality, laws, rules, culture, would you not  25 have turned those over to the research being  2 6 conducted and to the -- what we would call the  27 traditional historical research?  28 A    I never conducted that kind of an interview.  My  29 focus was on territory.  Anything else that might  30 have come up in the conversation appears in those  31 notes.  But I never focused on -- I never went into  32 an interview focusing on laws.  My focus was on  33 territories, place names, and the other information  34 that I had appeared in my journals where David sat  35 down and talked to me about -- oh, he simply sat  36 down and talked to me about what he wanted to talk  37 about.  He told me histories and different things,  38 and I recorded those.  39 Q    Yes.  4 0 A    I went away later and wrote them in my journal.  41 Q    The recording of those stories, and they have  42 certainly been referred to in evidence as stories of  43 crests, of family history, you would not have seen  44 those as being interviews?  45 A    The ones that I did?  46 Q    For the purposes of establishing the family history  47 of Niist? 8834  N.J. Sterritt (for Plaintiffs)  Cross-exam by Ms. Koenigsberg  1 A    The ones that I did?  2 Q    Yes.  3 A    I did do some -- well, you used a specific example,  4 Niist.  I did -- I believe I did an interview there.  5 But in terms of sitting down to conduct an interview  6 generally for the purposes that are outlined here, I  7 did not do such an interview.  It was always a focus  8 on territories.  I may have asked some information  9 about crests from time to time, not much more than  10 that.  11 Q    But you're not suggesting that there is no  12 relationship between the family history, the oral  13 history that may have been told to you, and the  14 boundaries and the territories?  15 A    No, oh, no.  16 Q    You would -- you are positive that there is such a  17 relationship?  18 A    Oh, yes, and I've said that.  19 Q    And so if you took down a story which pertained to  20 the boundaries and the territories, then that story  21 would form part of the research into the boundaries  22 and territory?  23 A    Yes.  24 Q    But you had no channel for turning that over  25 specifically to the people who were working on the  26 traditional historical research, is that what you  27 are saying?  28 A    Not necessarily.  I mean I don't recall the  29 communication because I was simply gathering the  30 information.  There may have been times when I sat  31 down with Peter or with Scott and they asked me  32 questions or I related information to them, but  33 there was no formal cross-over on that.  34 Q    Well, when you say "no formal cross-over," do you  35 mean you didn't hand over copies of your interviews?  36 A    No, not necessarily.  37 Q    When you say "not necessarily," would you sometimes,  38 if they were relevant to what you were doing?  39 A    I don't recall.  I may have, but I don't recall.  40 Q    If you would turn to tab 5, there is a paper there.  41 It is by Peter Grant "Presented to the Symposium on  42 Folk Law and Legal Pluralism" in 1983.  And the name  43 of that is "Recognition Of Traditional Laws In State  44 Courts And The Formulation Of State Legislation."  45 And on page 2 -- perhaps, in fairness, I should  46 start on page 1.  The Gitksan and Carrier  47 Codification Project. 8835  N.J. Sterritt (for Plaintiffs)  Cross-exam by Ms. Koenigsberg  1  2 "The Gitksan-Carrier Tribal Council  3 Association hired Gitksan and Carrier people  4 to do primary research and interviewing of  5 hereditary chiefs in 1981.  The actual  6 interviewing continued until the end of March  7 of 1983 at which time there were two hundred  8 interviews compiled."  9  10 Now, are you familiar with this paper?  11 A    No, I haven't seen it before at all.  12 Q    Were you familiar with the -- you are certainly  13 familiar with the primary research and interviewing  14 of the hereditary chiefs from 1981 through to the  15 end of March of 1983?  16 A    Yes, I knew that this was going on under Peter's  17 supervision.  18 Q    Yes.  And those interviews, while being analyzed and  19 referred to and used in relation to what has been  20 called the Codification of Laws Project, were  21 interviews of hereditary chiefs and elders about the  22 traditional use of their lands, isn't that right?  23 A    In relation to laws because that's the area that  24 Peter was working on.  25 Q    Now, on -- if you'll just turn over to tab 3.  There  26 is a letter from you, I believe, dated May 18, 1984  27 to the Law Foundation.  And on page 6 is your  28 signature?  29 A    Yes, there is.  This is a letter that was prepared  30 by Peter, and I read it and signed it.  31 Q    You would stand by what it says, I take it?  32 A    Yes.  33 Q    And its purpose was to obtain additional funding to  34 complete or carry on the Codification of Laws  35 Project; is that correct?  36 A    Yes.  And as I recall, we didn't get any more  37 funding.  38 Q    Right.  But you are also indicating to the Law  39 Foundation the status of the research by May 18th of  40 1984; is that correct?  41 A    I would have to read the letter again.  42 Q    Well, let me just refer you to -- I would be happy  43 for you to read the letter, but let me refer you to  44 some parts of it.  In the first full paragraph of  45 about the middle you say:  46  47 "From October, 1982 until the spring of 1983 8836  N.J. Sterritt (for Plaintiffs)  Cross-exam by Ms. Koenigsberg  1 there was exstensive interviewing of  2 hereditary Chiefs with respect to their  3 traditional rules.  All of these interviews  4 had to be transcribed and by the late summer  5 of 1983 most of those interviews had been  6 transcribed and translated.  An example of  7 where exstensive research has been carried  8 out are the interviews relating to the  9 traditional feasting of the Gitksan and  10 Wet'suwet'en people.  (A copy of the typical  11 transcript is enclosed)."  12  13 And I can advise you that in the file there was no  14 transcript enclosed.  But you are there referring to  15 the same interviews, although the time periods vary  16 little.  I could imagine it would be hard to keep  17 track exactly of when they began and when they  18 ended, but those are the same interviews that Mr.  19 Grant has referred to in his paper and that were  20 referred to in the newsletters that I have referred  21 you to.  I don't mean that every single interview  22 was the same, I mean the interviewing process aside  23 from those interviews which were directly related to  24 fishing sites?  25 A    These are relating to feasting and laws.  26 Q    Yes.  27 A    I'm not sure that the fishing sites -- interviews  28 under the direction of Harry -- of Mike Morell are  29 the same as the ones that Peter Grant is overseeing.  30 Q    Well, okay.  If we look on page 2 of your letter  31 under "Utility of the Codification Project."  And  32 just to assist you, you have earlier talked about  33 objectives and a considerable amount of analysis of  34 these interviews that was to be done, some of which  35 had been done.  You then go on to say:  36  37 "Already some of the analysis has been used  38 extensively.  For example, major sections of  39 the Gitksan-Wet'suwet'en brief to the Pearce  40 commission was built on the findings of the  41 codification project.  Secondly, the Petition  42 of Right for ownership of the fish and waters  43 on the reserve to the provincial government,  44 which is now being considered by the Cabinet,  45 was made possible because of the evidence  46 produced through this project."  47 8837  N.J. Sterritt (for Plaintiffs)  Cross-exam by Ms. Koenigsberg  1 And if we just stop there, both of those related to  2 fishing?  3 A    Yes.  Yes, they did.  4 Q    And a considerable amount of overlap, if not many of  5 the same interviews obtaining the data on  6 traditional fishing use and contemporary Indian  7 fishing practices, were utilized in both of those  8 projects, isn't that right?  9 A    Yes, but I don't know if the interviews that  10 Peter -- that they used here for the Pearce  11 commission, for example, were on laws.  More on laws  12 and laws relating to fishing sites that Peter had  13 drawn on and had gone into the Pearce report.  I'm  14 not sure about that as opposed to what Harry or Mike  15 Morell had been doing in his group.  16 Q    I'm not suggesting that at different times different  17 researchers didn't interview elders and then  18 somebody else would come along later and interview  19 the elders again for a somewhat different purpose,  20 but isn't it true that if an exstensive interview  21 was obtained of an elder or hereditary chief which  22 covered their traditional house history and all of  23 those other matters that we've heard so much about,  24 that that interview was used for whatever project it  25 would lend itself to?  26 A    Not necessarily, because the interviewers had to  27 make guarantees to the persons they were talking to,  28 so that's not necessarily the case.  29 Q    So are you suggesting that if you interviewed an  30 elder, David Gunanoot or whoever who was  31 knowledgeable, and you had notes pertaining to their  32 house histories, and they happened to tell you about  33 fishing sites, and they happened to tell you about  34 hunting grounds, and they happened to tell you about  35 their oral histories relating to boundaries that  36 you -- and you obtained that by a person who was  37 hired on the fish management study that you wouldn't  38 use that, you would go back to David Gunanoot again  39 and obtain the same information again by a different  40 researcher?  41 A    That could well have happened.  I don't -- I don't  42 know to what degree what Mike was doing and Peter  43 were doing corresponded.  In other words, if there  44 was an interview that was useful one to the other, I  45 don't know what the communications was between them.  46 I couldn't tell you that.  What I can say is that I  47 did not see these interviews. N.J. Sterritt (for Plaintiffs)  Cross-exam by Ms. Koenigsberg  1 THE COURT:  Can we continue this at 2 o'clock?  2 MS. KOENIGSBERG:  Yes.  3 THE COURT:  Thank you.  4 THE REGISTRAR:  Order in court.  This court stands adjourned  5 until 2 o'clock.  6 (PROCEEDINGS ADJOURNED TO 2 o'clock)  7  8  9  10 I hereby certify the foregoing to  11 be a true and accurate transcript  12 of the proceedings transcribed to  13 the best of my skill and ability.  14  15    16 LISA FRANKO, OFFICIAL REPORTER  17 UNITED REPORTING SERVICE LTD.  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  4 6 (PROCEEDINGS RESUMED PURSUANT TO AN ADJOURNMENT)  47 8839  N. Sterritt (for Plaintiffs)  Cross-exam by Ms. Koenigsberg  1 THE REGISTRAR:  Order in court.  2 THE COURT:  Where are your friends, Ms. Koenigsberg?  3 MS. KOENIGSBERG:  Oh, I am not stepping on that line, my lord.  4 I am afraid they didn't realize that court had  5 convened.  6 MR. RUSH:  Sorry, my lord, normally we get a warning call.  7 THE COURT:  Not too serious, Mr. Rush, just noting your absence  8 here.  Ms. Koenigsberg.  9  10 CROSS-EXAMINATION BY MS. KOENIGSBERG:  11 Q    Mr. Sterritt, before we broke for lunch, we were  12 talking about what I had identified as three strands  13 of research and your involvement in it, and up to  14 the point where we had gone in the chronology of  15 events, we had established that there were fishing  16 interviews or interviews relating to the fish  17 management study and very little if any overlap that  18 you knew of with those interviews and those that  19 were related to historical, traditional research.  20 Does that accord with your recollection?  21 A    I don't know what overlap that there might have  22 been.  23 Q    Okay.  And we had talked about what had been  24 identified in Mr. Grant's paper by the end of March  25 of 1983, there having been compiled 200 interviews,  26 and those, from your understanding, would not have  27 included the interviews relating -- that had been  28 done in relation to fishing?  29 A    I don't know.  I don't know that.  30 Q    Okay.  So it could be a larger number than 200 and  31 it could be a smaller number than 200, depending on  32 what it contained -- well, I guess it couldn't be  33 smaller than 200, but I guess it might be larger  34 than 200?  35 A    I don't know.  36 Q    You will agree with me that there are mentioned 200  37 interviews having been compiled in March of '83?  38 A    Yes, that's mentioned in the report.  39 Q    Yes.  And it is of course discussed in your letter,  40 not by number, but those interviews are discussed in  41 your letter of May 18, 1984, which you have told us  42 Mr. Grant wrote but that you adopt?  43 A    Yes.  44 Q    And you were familiar with the contents of this  45 letter?  46 A    Yes.  47 Q    And we had gone through on page 2, and that's at tab 8840  N. Sterritt (for Plaintiffs)  Cross-exam by Ms. Koenigsberg  1 3, that letter of yours to the Law Foundation  2 talking about the use to which the interviews had  3 been put, and we have gone through two projects  4 relating to fishing; the Pearce Commission and the  5 Petition of Right.  And then there is a third in  6 the -- about in the middle of the last paragraph  7 under -- on page 2 under Utility of Codification  8 Project.  It says:  9  10 "Thirdly, Band by-laws on the fisheries were  11 developed as part of this project and these  12 by-laws remain a political issue for the  13 federal government.  Fourthly, many of the  14 findings of this project have led to excellent  15 mapping on traditional land use."  16  17 Do you see that?  18 A    Yes.  19 Q    Now, when you were saying that, were you referring  20 to interviews resulting in information different  21 from the information which you obtained?  22 A    I don't know what Peter was referring to when he did  23 this.  He was referring to, as I understand it, the  24 codification project.  And in that area I am not  25 sure what he is saying.  26 Q    Well, although he wrote it, I mean at the time you  27 read it and you --  28 A    Yes.  29 Q    -- you must have had some understanding of what was  30 being referred to there?  31 A    Well, I read it and signed it.  I went through --  32 through it.  33 Q    There is no doubt in your mind that information  34 attained from chiefs and elders on their traditional  35 use of land was used by you and Marvin George and  36 anyone else involved in the mapping project to map  37 traditional land use.  That's correct, isn't it?  38 A    Yes.  I did interviews and gathered information and  39 used that that was passed along to Marvin George.  40 Q    And so, there is no doubt in your mind that when  41 Peter wrote, and that many of the findings of this  42 project, that although he is referring to the  43 Codification of Laws Project, he is referring to the  44 body of information obtained in part through that  45 project, that is the interviewing of hereditary  46 chiefs and elders?  47 A    I don't know what Peter is referring to there.  To 8841  N. Sterritt (for Plaintiffs)  Cross-exam by Ms. Koenigsberg  1 what extent he is referring to my work and other  2 work, I don't know.  3 Q    Maybe other documents will throw a little more light  4 on it.  We go on to the fifth:  5  6 "Chiefs' binders on indicators of aboriginal  7 title have been developed as a result of  8 supplementary finding of this project."  9  10 What does that refer to?  11 A    I don't know what that is.  This is Peter's project.  12 I don't know what he means by that.  13 Q    Well, when you say it is Peter's project, you mean  14 that Mr. Grant was hired by the Tribal Council  15 Association while you were president to supervise  16 and assist in a Codification of Laws Project; is  17 that correct?  18 A    Yes, yes.  19 Q    And —  2 0 A   And he was under -- he was working with Don Ryan on  21 that.  22 Q    Yes.  And -- but there is no doubt, is there, Mr.  23 Sterritt, that you as president have to be involved  24 to some degree in all of the research projects that  25 are ongoing in the Tribal Council relating to land  2 6 claims?  27 A    Not necessarily because I was very busy on the  28 constitutional front, the national level.  I was  29 quite involved on the -- in terms of the -- at a,  30 well, fund raising --  31 Q    Yes.  32 A    -- at a broad level and, in terms of some of the  33 larger political issues that were going on, I was  34 heavily involved in those.  35 Q    That's right.  But at this time and even in -- if we  36 just started with the May 18, 1984 letter, you  37 didn't just put your name to that without having  38 some idea about what was in it?  39 A    Well, I leave it to Don and to Peter in terms of the  40 details of what they are doing.  That doesn't mean I  41 know everything that Peter is doing.  42 Q    I can more than accept that you don't know  43 everything that Mr. Grant is doing, even everything  44 that Mr. Grant is doing in relation to land claims,  45 but you do have some understanding of the research  46 project and the research process that was ongoing in  47 the Codification of Laws Project? 8842  N. Sterritt (for Plaintiffs)  Cross-exam by Ms. Koenigsberg  1 A    No.  That was a project that was under Peter and I  2 did -- I had very little to do with it.  3 Q    And none of your research and none of your, I might  4 say, intensive knowledge of the boundaries and the  5 territories and the bases of the claims of the  6 hereditary chiefs to those territories were shared  7 with Mr. Grant and the researchers on the  8 Codification of Laws Project?  9 A    Well, I didn't say -- I mean, I have already  10 mentioned that Peter and I or Peter may have asked  11 me questions.  In terms of the information that he  12 was accumulating, I never saw any of that  13 information.  In terms of the information that I was  14 gathering, it was because I would come home and,  15 perhaps from Ottawa, I spent as long as four months  16 in Ottawa on the national front just on the  17 constitutional conferences of 1983 alone.  I came  18 home, did a couple of field trips, and went back to  19 Ottawa again.  And that's an example of types of  20 things I was doing.  I was fitting it in.  In terms  21 of my material, I don't think I -- I don't think I  22 passed along very much, if anything, to Peter.  23 Q    Well, just look at the last line here on this page,  24 page 2:  25  26 "Finally, the Gitksan-Wet'suwet'en Tribal  27 Council has produced significant discussion  28 papers on aboriginal title and aboriginal  29 government for the First Minister's  30 conference on aboriginal constitutional  31 matters arising out of the findings of this  32 proj ect."  33  34 Now, that's the work you were doing in Ottawa you  35 just told us about, isn't it?  36 A    That was a very small part of it.  What I was doing  37 in Ottawa was at a national level.  In a sense I was  38 doing very little for the Tribal Council at the  39 national level.  What was required was the  40 organization of the first First Minister's  41 conference and the preparation for that, and there  42 was myself and three others who were intensely  43 involved in that, and then what actually happened in  44 the First Minister's conference, all the logistics,  45 the organization of that.  What also was going on  46 was meetings with Attorney Generals and departmental  47 officials.  There was three levels of meetings going 8843  N. Sterritt (for Plaintiffs)  Cross-exam by Ms. Koenigsberg  1 on and, at some of the officials and ministerial  2 levels, I was involved in doing presentations on --  3 in trying to educate and inform them about the  4 issues.  And that was the purpose of that paper and  5 it was developed, and then I took it and I presented  6 it.  7 Q    Okay.  8 A    But my, you know, my activities were for -- oh, I  9 think over a period of perhaps a year and a half,  10 maybe two years, were in terms of the, what was  11 being done, the substance of what was being done in  12 the constitutional conferences and the logistics  13 of --  14 Q    Yes.  I understand that.  And what I would like you  15 to agree to if you can is at least this general  16 basis of your knowledge.  You knew, in fact, you  17 began the research project based on interviewing  18 elders and hereditary chiefs?  19 A    How far are you going back to?  20 Q    '75.  You began the process?  21 A    I began a process there, yes, in terms of the first  22 map.  23 Q    And you were involved in limited but some  24 interviewing of elders and hereditary chiefs  25 relating to their -- the territoriality issue of  26 aboriginal rights?  27 A    Well, I think that's very broad.  I think I was  28 involved in acquiring -- well, if the people told me  29 stories, I wrote those down but my main focus was on  30 geographical place names.  31 Q    I understand that.  But you related those to the  32 histories and the culture at least in your own mind;  33 isn't that right?  34 A    Well, I don't think that you can separate those.  I  35 think you'd have to be more specific on that.  36 Q    Well, I am just trying to get from you what you knew  37 and what you understood about the research process  38 from 1975 on, and I have from you that you did  39 conduct some interviews of some elders and  40 hereditary chiefs that involved information relating  41 to their territories.  You have called it place  42 names and I am saying I am put -- making it a little  43 broader.  It wasn't just place names, was it?  44 A    The bulk of it was place names.  I felt that the way  45 to approach it was to identify place names within  46 the territory.  There was some territorial work but  47 my focus, and you can see that from my notes 8844  N. Sterritt (for Plaintiffs)  Cross-exam by Ms. Koenigsberg  1 throughout, is that it was on place names, location  2 of place names.  3 Q    Yes.  And you understood and in fact directed the  4 research projects that came out of the Land Claims  5 Office while you were research director; isn't that  6 right?  7 A    I shared that responsibility with Garry Patsy.  I  8 wasn't director but we shared that, and also then  9 Scott Clark was responsible for that as well.  10 Q    You all worked together?  11 A    Yes, but I -- I worked at a different level.  I also  12 was involved in other issues separate from just the  13 research.  14 Q    I understand that, but you did work with Mr. Clark  15 and you did work with Mr. Patsy on research related  16 to land claim involving interviewing elders and  17 hereditary chiefs?  18 A    They did research.  I was involved in a number of  19 things and I did some of my own research.  20 Q    Yes.  21 A    I was not -- I was not involved in the research that  22 they did with people that they were seeking  23 information from.  24 Q    I understand that.  But you certainly talked to  25 elders and hereditary chiefs on an ongoing basis,  26 both about their histories, their place names, and  27 whatever else was going on in the community from --  28 at least from 1975 until today; isn't that right?  29 A    Yes, I did that in differing degrees.  30 Q    Sure.  31 A    But I -- to a limited extent in terms of histories,  32 most of that appears in my very early notes with  33 David Gunanoot?  34 Q    Yes.  35 A    There are passing references to histories in my  36 field notes.  37 Q    Yes.  38 A   And in -- to a certain extent in some of the  39 loose-leaf notes but the emphasis there is not on  40 histories, it is on place names.  41 Q    Yes.  42 A   And locations.  43 MS. KOENIGSBERG:  I understand.  Now, I would like to — you to  44 turn to tab —  45 THE COURT:  Ms. Koenigsberg, where did you get this figure of  46 200 interviews from?  47 MS. KOENIGSBERG:  That's referred to in Mr. Grant's paper at tab 8845  N. Sterritt (for Plaintiffs)  Cross-exam by Ms. Koenigsberg  1 5, and it is on page 2, the reference begins at  2 tab -- or at page 1 where he says, "The  3 Gitksan-Carrier Tribal Council Association hired  4 Gitksan and Carrier people to do primary research  5 and interviewing of hereditary chiefs."  6 THE COURT:  Yes, all right.  Thank you.  7 MS. KOENIGSBERG:  And that — that paper was in fact enclosed  8 with Mr. Sterritt's letter.  You can see that  9 reference in -- I have forgotten the tab.  10 THE COURT:  All right.  You are turning now to where, please?  11 MS. KOENIGSBERG:  Tab 3.  I am on tab 6.  We have — it's the  12 newsletter we have already talked about, January  13 1983, where you gave the Christmas -- did a  14 Christmas letter referring to the legacy of the  15 interviews if you will.  And then if we turn over to  16 page -- fourth page under "Land Claims Research  17 Preparation Update".  18 MR. RUSH:  What tab, please?  19 THE COURT:  6.  2 0 MS. KOENIGSBERG:  21 Q    6.  This is a report by Scott Clark and you have --  22 he is at this time a Land Claims officer?  23 A    I think that he was the research co-ordinator of the  24 Land Claims Office.  25 Q    Yes.  He is an anthropologist; is that correct?  26 A    I think he is, yes.  27 Q    In January of '83, of course, you were president?  2 8 A    Yes, I was.  29 Q    And you have read this newsletter?  30 A    Not since then.  31 Q    Okay.  But in any event, Mr. Clark would have  32 reported to you in some respects, I believe you  33 referred to that in your examination for discovery,  34 the difference between being president and being  35 Land Claims director is who reports to who?  36  37 Q    And Mr. Clark at this time would have reported to  38  39  40  41 A    No, no.  He was -- Scott Clark at that time was  42 reporting to either Don Ryan or Garry Patsy or both.  43 He wasn't reporting to me then.  44 Q    All right.  And in any event, he is reporting  45 generally to the Tribal Council people about the  46 Land Claims research.  47  A  Yes.  Q  And Mr  you?  A  In 198  Q  '3?  A  No, no 8846  N. Sterritt (for Plaintiffs)  Cross-exam by Ms. Koenigsberg  1 "I would like to bring people up to date on our  2 research preparations for the Land Claims.  3 The work covers a number of different areas so  4 that we will be prepared for both the  5 short-term and longer-term issues from various  6 angles."  7  8 That's a principle that you were certainly in  9 accordance with?  10 A    Yes.  11 Q  12 "Approaching land claims in this way means a  13 lot of work by many people -- but in the end  14 it is the safest approach because it means  15 that Tribal Council is not locked into a  16 single tactic.  17 The Traditional/Historical Study is in its  18 final stages of information collection."  19  20 We have already gone over references to that.  21  22 "Many elders and chiefs have been interviewed  23 so that we can put their great store of  24 knowledge and use in the land claim.  We have  25 several more elders and chiefs we want to  26 interview before this phase of the study ends  27 in March.  The final report is planned for  28 December, 1893."  29  30 He then goes on and talks about:  31  32 "The Fish Management Study is in its fourth and  33 final year.  We have just had our best season  34 yet of information collection in terms of  35 fishing on the Kispiox, Skeena, and Bulkley  36 Rivers.  The researchers in this project also  37 are in their..."  38  39 I think that's...  40  41 " stages of interviewing chiefs and  42 elders regarding Traditional Gitksan and  43 Carrier fishing and the more recent impacts on  44 this.  The final report is due in July, 1983."  45  46 We have certainly talked about the collection of  47 that day.  He then goes on. 8847  N. Sterritt (for Plaintiffs)  Cross-exam by Ms. Koenigsberg  1  2 "The Codification of Laws Project is closely  3 tied to the Traditional/Historical Study in  4 that the information being provided by the  5 elders and chiefs forms its basis."  6  7 That was your understanding, was it not, that the  8 interviews that were being conducted by the  9 researchers in the second phase of the research  10 project, that is when you had applied for the monies  11 to -- for further and more intensive training for  12 the researchers to do the historical study, and  13 that's the Traditional Historical Study; isn't it?  14 A    Yes, based on this, yes.  15 Q    That -- those interviews were the basis for the  16 codification of laws and any other analysis, if you  17 will, of those interviews which those interviews  18 would bear?  19 A    I can't say that.  I don't know what -- to what  20 extent Scott and Peter, in what way and with what  21 they were dealing with at that time.  22 MS. KOENIGSBERG:  Okay.  Well, let's just look at this  23 statement.  Mr. Clark was in charge of this research  24 project of really Land Claims Research.  25 THE COURT:  Mr. Clark.  26 MS. KOENIGSBERG:  Mr. Scott Clark.  2 7    THE COURT:  Yes.  2 8    MS. KOENIGSBERG:  29 Q    During this period?  30 A    Garry Patsy was the director and Scott was working  31 with Garry, and Don was the executive director and  32 they were working --  33 Q    Scott was the man with the, if I can put it this  34 way, with the specific professional research  35 training; isn't that right?  36 A    Yes, he assisted with that.  37 Q    And he was in charge of assisting in the gathering  38 of the research, the way you do questionnaires or  39 how, from a social science point of view, to best  40 achieve the information that you seek?  41 A    Yes, yes, I think he was.  42 Q    And he says in this letter to the Tribal Council:  43  44 "The Codification of Laws Project is closely  45 tied to the Traditional/Historical Study in  46 that the information being provided by the  47 elders and chiefs forms its basis." 8848  N. Sterritt (for Plaintiffs)  Cross-exam by Ms. Koenigsberg  1  2 Now, is there any other interpretation we can put on  3 that than that the interviews which are extensive  4 form the basis for both the Codification of Laws  5 Project and any other analysis that you would do,  6 whether it is mapping or doing papers on aboriginal  7 title and the claim that the Gitksan-Wet'suwet'en  8 people have to aboriginal title?  9 A   As I recall, the only mapping that was being done at  10 that time was by me, except that Alfred Joseph on  11 the other side was -- for the Wet'suwet'en and other  12 people were doing mapping on that side.  And to my  13 knowledge the only material from the Gitksan side  14 that was going into the mapping was mine.  I don't  15 know anyone else that was doing that -- oh, except  16 Glen Williams who was working with me.  17 Q    Yes.  I am not suggesting that 200 interviews, if we  18 can call them that, that seem to form the basis of  19 the Traditional/Historical Study and the  20 Codification of Laws Project, I am not suggesting  21 that your interviews on place names and your  22 specifically directed conversations with hereditary  23 chiefs about where boundaries are were necessarily  24 the same as these.  My question to you is, can't you  25 agree and didn't you know that the  26 traditional/historical interviews are the same  27 interviews that form the basis for the Codification  28 of Laws Project?  29 A    Well, I think that's possible but I don't know that  30 for sure.  31 Q    Okay.  Well, is there really any other  32 interpretation?  Are not the rules and the laws of  33 the Gitksan-Wet'suwet'en as they have been explained  34 in this courtroom based on traditional, cultural  35 rules and stories and adaawk, whatever you want to  36 call it, aren't they all mixed up the same?  Aren't  37 they --  38 A    Well, I wouldn't -- I don't know whether they are  39 all mixed up the same.  4 0    MS. KOENIGSBERG:  Excuse the awkward language.  41 THE COURT:  Well, there is two studies that are mentioned in  42 this paragraph, the Codification of Laws and the  43 Traditional/Historical Study.  There is no doubt  44 that they are based primarily upon the information  45 of elders, is it?  46 THE WITNESS:  No, I think that's right.  47 THE COURT:  That much is so. 8849  N. Sterritt (for Plaintiffs)  Cross-exam by Ms. Koenigsberg  1 MS. KOENIGSBERG:  2 Q    I don't think I have to go any further with that if  3 you can agree with that.  I'd like you just to turn  4 to tab 4.  This is a document dated January 23, 1984  5 from Arlene Danes.  It says to Michael Jackson but  6 it is the Law Foundation and I believe that's just a  7 mistake; that should be Michael Jacobsen?  8 A    Yes, probably.  9 Q    And who is Arlene Danes?  10 A    She was a secretary in the office.  11 Q    Right.  And she is just including a quarterly report  12 that was to have been sent with earlier application  13 for funding sent by Mr. Ryan; is that your  14 understanding?  15 A    Yes, that's what that --  16 Q    And if you look at page 2, it just gives us perhaps  17 a little more information on these interviews.  Look  18 at page 2 under Translation and Legal Analysis.  She  19 is referring -- this report -- not Arlene Danes who  20 is the author of this report, she sent it along to  21 the Law Foundation.  But this report says under  22 Translation and Legal Analysis:  23  24 "Since March, 1983, most of the interviews have  25 been translated although there are a great  26 deal more Carrier interviews to be translated  27 which were not taken into account in the March  28 31st report.  29 According to the researchers, there are  30 approximately 35 Carrier interviews to be  31 translated and 9 Gitksan interviews to be  32 translated."  33  34 Stopping there.  You knew during this period of  35 time, '83, '84, that one of the major parts of this  36 project was to obtain these interviews where  37 necessary in the chief's language, whether it be  38 Wet'suwet'en or Gitksan, and then to have that  39 translated and transcribed; is that correct?  40 A    I was aware that they were conducting those  41 interviews in Gitksan and Wet'suwet'en, yes.  42 Q    That they were translating them?  43 A    Yes.  44 Q    And it is saying here that there are approximately  45 35 still to be translated at the Carrier interviews  46 and 9 Gitksan interviews to be translated and then  47 it speaks about the objectives.  And then when we go 8850  N. Sterritt (for Plaintiffs)  Cross-exam by Ms. Koenigsberg  1 down into the next last paragraph:  2  3 "In the interim, there is a great deal of  4 analysis to be done with respect to the  5 Carrier interviews.  There are approximately  6 50 Carrier interviews which have been  7 translated."  8  9 And then it goes on to talk about the analysis that  10 will be done with these interviews.  I added those  11 up and I got 85 Carrier interviews.  Would it be  12 your understanding that there -- if we were talking  13 about there general topic of 200 interviews, that  14 there would be more Gitksan interviews than Carrier  15 interviews?  16 A    I don't know.  I don't know how many interviews they  17 did.  18 MS. KOENIGSBERG:  Okay.  Now, I wanted to ask you what else you  19 might know about the use of these interviews and, at  20 tab 2 is the Gitksan-Wet'suwet'en blanket trapline  21 proposal and I might be wrong but I think this has  22 already been marked as a exhibit.  23 MR. RUSH:  It has.  24 MS. KOENIGSBERG:  25 Q    And Appendix B to that proposal is toward the back.  26 Looks like it is on the ninth page in.  Have you got  27 that, Appendix B?  28 A    It is got 10185 on the top right.  2 9 Q    Yes, our document number.  30 A    Yes.  That's on a number.  It says Appendix B,  31 Transfer of Registered Trapline?  32 Q    Yes.  33 A    Yes.  34 Q    You sent out a great number of these letters to the  35 hereditary chiefs who were participating in the  36 blanket trapline proposal; is that correct?  37 A    Ralph Michell was looking after that and --  38 Q    Yes.  It went out over your name, though, didn't it?  39 A    It may have, yes.  40 Q    You certainly were aware of the letter?  41 A    Yes.  42 Q    And in that letter it refers to -- we look at the  43 second paragraph:  44  45 "The Gitksan-Wet'suwet'en Tribal Council  46 Association is the registered holder of the  47 blanket trapline territory, including the area 8851  N. Sterritt (for Plaintiffs)  Cross-exam by Ms. Koenigsberg  1 that was formerly registered in your name  2 hereby guarantees that in consideration of  3 your transfer of your trapline to the Gitksan  4 Wet'suwet'en Tribal Association, the Tribal  5 Council Association shall maintain on record  6 maps of your traditional trapping and hunting  7 territories and shall provide you with a folio  8 including the sources of the information  9 showing your traditional trapping  10 territories."  11  12 What was that folio?  13 A    There never was one done.  14 Q    Okay.  What did you intend would be included in that  15 folio?  16 A   As I recall, the information as to their territories  17 such as is in my notes and information like that.  18 Q    What about if interviews with various elders turned  19 up information about trapping, territories and  20 boundaries, would that be included?  21 A    I don't know.  We never got that far.  22 Q    That would certainly be a source of information,  23 wouldn't it?  24 A    I think it is possible.  25 MR. RUSH:  I think he should just finish.  2 6    MS. KOENIGSBERG:  27 Q    Sorry.  28 A    It is a possibility.  29 Q    Were you actively collecting any other information  30 at the time other than the interview projects that  31 we have talked about?  32 A    You mean me?  33 Q    I mean the Tribal Council Association while you were  34 president or director of Land Claims?  35 A   As I recall, the only things that I can recall are  36 the things that have been mentioned here.  I don't  37 know what else.  38 Q    So would it be fair to say that in February of 1985,  39 which is the date of this document, the only sources  40 of information that you know about that would have  41 been in the control of the Tribal Council  42 Association would have been your interviews and the  43 interviews conducted by the Fish Management Study  44 group and the interviews conducted by the  45 Traditional/Historical Study group?  46 A    Yes, I think that would be right.  47 Q    And so it would be fair to assume, would you agree 8852  N. Sterritt (for Plaintiffs)  Cross-exam by Ms. Koenigsberg  1 with me, whatever you were going to put in the folio  2 would probably include one of those sources, one or  3 more?  4 A   As it would relate to territory, yes.  5 Q    Yes.  Now, in 1979, when you were director of  6 research for Land Claims, a library was established  7 in the Tribal Council offices; is that correct?  8 Well, I am looking at --  9 A    I think it was in 1977.  10 Q    -- a band council resolution which is dated November  11 27, 1979.  You are not a signatory but do you  12 recognize that?  13 A    Yes.  Well, I don't know whether I have ever seen  14 this one but I recognize the text there.  15 Q    Yes, and it, at the bottom of it, says:  16  17 "Therefore, be it resolved that the  18 Gitksan-Carrier Tribal Council approved  19 transfer of the old Department of Indian  20 Affairs' trapline map to the centre for  21 historical preservation and for the use of the  22 centre and member bands while conducting  23 historical research."  24  25 That was one of the purposes of that library or  26 resource centre, isn't it?  27 A    Yes.  28 Q    And it was a concern that you shared with the  29 hereditary chiefs that their heritage, including  30 documenting their histories, their territories,  31 their -- all of their artefacts should be preserved  32 and the Tribal Council would be the vehicle for  33 that?  34 A    Well, there is many parts to your statement there.  35 Q    Yes.  36 A    It's -- it was important that the knowledge of the  37 hereditary chiefs be collected and preserved for the  38 benefits of future Gitksan-Wet'suwet'en persons.  It  39 was also important that this information, as much as  40 was possible, be brought into one area but there was  41 a third part to your statement.  42 Q    Well, I mentioned artefacts as well as documenting  43 histories.  44 A    Well, that was a concern but not one that was easily  45 handled in terms of being able to store or look  46 after -- well, artefacts are one thing but a lot of  47 the regalia of the hereditary chiefs is not really 8853  N. Sterritt (for Plaintiffs)  Cross-exam by Ms. Koenigsberg  1 artefacts.  That's -- that material is used on a  2 day-to-day basis.  You can't classify that as  3 artefacts.  4 Q    Did the hereditary chiefs go further -- were they  5 formal in declaring their concern for the  6 preservation of materials relating to their  7 histories and their territories in their own  8 control?  Was there a formal directive to you or the  9 Tribal Council while you were a member of it, and I  10 mean a directing mind member of it?  11 A    I don't recall.  12 Q    Certainly you were prepared to do what you needed to  13 do to preserve their heritage?  14 A    I was very interested and concerned that the  15 geographical features within the territory be set  16 down; that they be put on to -- that that be  17 recorded on paper and that that would be a record  18 that was important for future generations.  There  19 were individuals who came to me and, not necessarily  20 because I was -- because of my interest, but because  21 they felt that I might record that and, you know, on  22 paper, and do something with it.  But they were also  23 very busily passing that on to people with -- people  24 within their own houses as well.  25 Q    Yes.  26 A    Younger people.  But it also seemed that it was  27 probably wise to have a place where that could be  28 safely stored, a central place.  29 Q    Yes.  30 A   And that was part of the purpose of the library.  31 Q    And you were aware that the hereditary chiefs had  32 expressed a concern that any recording of their oral  33 histories remained in their control?  34 A    Yes.  35 Q    And one of the ways to assert and maintain that  36 control is to maintain the records that are made of  37 their histories in the Tribal Council?  38 A    Can you repeat that again?  39 Q    One of the ways to assert that control and to  40 maintain that control is to maintain the library in  41 the Tribal Council.  If there is a recording or a  42 document made of the oral histories, then that  43 remains in the Tribal Council or with the Tribal  44 Council.  That's a goal, isn't it?  45 A    I don't know to what -- I don't recall to what  46 extent hereditary chiefs might have said that.  47 Q    Did you understand that to be a goal? 8854  N. Sterritt (for Plaintiffs)  Cross-exam by Ms. Koenigsberg  1 A    I don't know whether it was a goal of theirs or an  2 objective of other people, but it may have been, I  3 don't recall.  4 Q    What other people would it have been an objective  5 of?  6 A    Well, when I say, if it was -- it wasn't of  7 hereditary chiefs, it was of other people, and I am  8 referring to people like myself and others.  9 Q    I would like to ask you just if you would turn to  10 tab 1, and there is a document called Organizing for  11 Self Government, a management training and  12 development plan, and this was authored by Dr. Frank  13 Cassidy, it is dated 1985.  You are familiar with  14 that document?  15 A    I am aware of it, not necessarily familiar with it.  16 Q    In the preface on the second page, it says:  17  18 "This report was commissioned by the  19 Gitksan-Wet'suwet'en Tribal Council."  20  21 You were president when it was commissioned?  22 A    Yes.  23 Q    Were you one of the commissioners?  24 A    Don Ryan commissioned this and oversaw it in depth.  25 Frank Cassidy talked to me at one point but I can't  26 say that I had an awful lot to do with this project  27 at all.  28 Q    He thanks you for your valuable assistance and you  29 wouldn't quarrel with whatever assistance given  30 being valuable; would you?  31 A    I can't remember offering him a lot of assistance on  32 this.  33 Q    And have you read it?  34 A    Yes, I think I have read this one.  35 Q    And can you confirm that this document has the  36 approval of the Tribal Council?  37 A    I don't know whether it ever ended up going through  38 an approval process by Tribal Council.  39 Q    It says in the preface that at the last line:  40  41 "Copies can be obtained by writing the  42 Gitksan-Wet'suwet'en Tribal Council."  43  44 As president of that association, would you agree  45 with me that it is unlikely that you would keep  46 copies and disseminate them if you didn't approve of  47 it as an organization? 8855  N. Sterritt (for Plaintiffs)  Cross-exam by Ms. Koenigsberg  1 A    No.  A document could be prepared for review by  2 people and not necessarily have approval and then  3 eventually be modified and then brought back in  4 another form for approval.  So I don't -- I don't  5 know whether this ever ended up being approved or  6 not.  7 Q    Do you recall when you read it if you had any  8 concerns about its contents?  9 A    I don't recall.  10 Q    You would have voiced them if you had had concerns?  11 A    There was a group of people who were dealing with  12 this in depth and I was not dealing with it to any  13 great extent.  It was really for them to review and,  14 if there were concerns, then they would have brought  15 those back and then through that committee I -- as I  16 recall -- I didn't have much to do with this  17 programme, and what they were -- in terms of their  18 input, I would have respected their input because it  19 was a collective group.  20 MS. KOENIGSBERG:  Thank you.  Those are all my questions.  I do  21 have a couple of points I would like to -- comments  22 I would like to make and requests I would like to  2 3                make.  24 THE COURT:  Before you do that, do you want —  25 MS. KOENIGSBERG:  Maybe we could mark — I don't know what would  26 be the easiest way to mark this.  We have referred  27 to each document and, if my friend has no -- I am  28 sorry, I could have the witness -- although what it  29 would be in for, I don't know.  30 THE COURT:  Do you want to take ten out?  31 MS. KOENIGSBERG:  Yes, I just took ten out.  I think he's  32 identified, for whatever purpose he's identified it,  33 all the other documents, and it can go in as one  34 exhibit.  35 THE COURT:  I will give you back tab ten.  What do you say, Mr.  36 Rush?  37 MR. RUSH:  I think that they should be separately marked and my  38 friend has picked a portion of the Organizing for  39 Self Government document and I think that, as I  40 understand it, this document was longer than that,  41 although I can't remember.  It isn't?  42 MS. KOENIGSBERG:  Well, maybe put it this way, if it is, I'd be  43 glad to substitute the full document.  44 MR. RUSH:  That's all I want.  If the document is bigger than 12  45 pages in length or 13 pages in length, I think it  46 should all go in.  47 THE COURT:  All right.  Well, subject to that, is there any 356  N. Sterritt (for Plaintiffs)  Cross-exam by Ms. Koenigsberg  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  reason why this book shouldn't be the next exhibit  and the individual tabs be suffixed by dash 1, 2, 2  referring to tab numbers?  No, except to say that tab 2 is already an exhibit.  It is Exhibit 631.  Oh, all right.  I don't think it matters if it is i  twice.  What's the next exhibit on the page?  REGISTRAR:  Number 762, my lord.  COURT:  All right.  Well, this book will be exhibit 762.  KOENIGSBERG:  1 through 9.  COURT:  Yes, and then the individual documents will be  marked 762 - 1 to 9 for the first nine tab numbers.  All right, Mr. Registrar, would you have those  documents marked accordingly then.  REGISTRAR:  Yes, my lord.  MR. RUSH  THE COURT  THE  THE  MS.  THE  THE  (EXHIBIT 762  1 to 9  A.G. BLACK DOCUMENT BINDER)  THE COURT:  Thank you.  Just a moment.  All right, thank you.  MS. KOENIGSBERG:  My lord, I'd like to make a request that the  200 interviews referred to be produced.  I can  advise the court and my friend that we were able to  identify 22 entries in my friend's lists which could  possibly be attributed to interviews.  Some clearly  are.  In facts, 13 interviews produced by my friend  by letter relating to Alfred Joseph we have received  and -- but they are also included in the 22 entries  and we could find no other references in my  plaintiff's -- in the plaintiff's list which could  have been -- which we could discern as being  interviews.  I believe from this witness' evidence  now that his interviews and his notebooks do not  constitute those interviews, although it is possible  there could be some overlap.  There were other  researchers than Mr. Sterritt conducting these  interviews and we have not been able to identify  them.  We have asked for interviews of course  intermittently but until we obtain the Law  Foundation file we did not realize that there were  200 and that they had been translated and  transcribed as described in these documents.  THE COURT:  All right.  I suppose you need some time for that,  do you, Mr. Rush?  MR. RUSH:  Well, just to say that there have been, as I  understand it, a number of disclosures of interviews  and the various forms in which these have come, I  have understood they may not all be in the -- in 8857  N. Sterritt (for Plaintiffs)  Cross-exam by Ms. Koenigsberg  1 a -- at the tight form of being identified as an  2 interview of this particular hereditary chief but,  3 as I understand it, Mr. Morell has interviewed a  4 number of hereditary chiefs and what particular form  5 the interview takes I don't know and there have been  6 interviews as I have said disclosed on the document  7 list and I would have to say that, as far as I know,  8 there are not 200 interview notes.  I don't -- or  9 such interviews, but I will, you know, endeavour to  10 make the inquiries with respect to any ones that may  11 not have been disclosed.  These I don't know about.  12 THE COURT:  Ms. Koenigsberg, have you notified your friend of  13 the 22 that you have identified?  14 MS. KOENIGSBERG:  No, I —  15 THE COURT:  Perhaps you could do that.  16 MS. KOENIGSBERG:  I'd be glad to give him our list of ones but I  17 can advise my friend that Mr. Morell is not listed  18 as one of the interviewers in the 200 interviews if  19 those 200 interviews, as I understand Mr. Sterritt's  20 evidence, are separate from the Fish Management  21 Study but, leaving that aside, there are no  22 interviews identified as being conducted by Mr.  23 Daniels, for instance, who's mentioned as being a  24 interviewer, and I have counted Mr. Morell's  25 interviews and his interviews of course are in  26 English.  27 THE COURT:  All right.  Well, if you'd be good enough to give  28 Mr. Rush a note of the 22 that you have identified,  29 and perhaps it would help to also earmark the 13  30 that you say have been produced.  Mr. Rush will  31 naturally have to make some inquiries.  32 MS. KOENIGSBERG:  I should say, my lord, that there is some  33 urgency to this at this point.  We are facing 34  34 cross-examinations of elders and hereditary chiefs  35 and these interviews would appear in whatever form  36 they take to be directly relevant to many of the  37 persons that we have not yet cross-examined and, in  38 particular, all of the Wet'suwet'en people that are  39 to be cross-examined.  It would appear that there  40 are transcripts of translated interviews in 1983, at  41 least 50 at that time transcripts, and I can tell my  42 friend that precisely there are 13 Wet'suwet'en  43 interviews disclosed to date on the list.  It was  44 harder to tell with some of the others if they were  45 interviews or not, the making of the 22.  It is  46 extremely important that we receive this material  47 before we are faced with conducting these N. Sterritt (for Plaintiffs)  Cross-exam by Ms. Koenigsberg  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  cross-examinations or we are going to be in the same  position we have been in with Mr. Sterritt.  THE COURT:  I am sure Mr. Rush will take that into account and  keep in mind.  All right.  There is one other  document that you handed up but I don't know if you  intend to put it in, the February 2 newsletter.  MS. KOENIGSBERG:  Other than that I read a part to him.  Perhaps  we could mark it as an exhibit.  THE COURT:  Do you want it marked?  MS. KOENIGSBERG:  Yes, if we could.  THE COURT:  Exhibit 7 63.  THE REGISTRAR:  763, my lord.  (EXHIBIT 7 63 - FEBRUARY 2 NEWSLETTER)  MS. KOENIGSBERG:  me.  Thank you, my lord.  Thank you for reminding  THE COURT:  MR. RUSH:  THE COURT:  MR. RUSH:  Now, when do you think we are going to be able to  proceed, Mr. Rush and Mr. Goldie and anyone else  that wants to speak on this question?  Perhaps I should address you first on this subject.  I want to raise one other point that I sought to  follow up with after Mr. Goldie's completion of his  cross-examination -- or completion up to the present  date of his cross, and that is the question of the  closure, if I can use that term -- of the disclosure  of documents.  I can advise your lordship that the  intentions of the plaintiffs were considerably  greater than our ability to comply and, at the  present time, I can tell you that we cannot maintain  the schedule of complying with the disclosure of the  remaining documents which we want to disclose that  was established for today.  And I simply wish to  advise your lordship of that at this time.  We are  doing the best job we can to gather the remaining  documents that we are seeking to disclose and to put  them on a list and to get them to our friends but  unfortunately we are not in a position to do that as  of today's date.  I suppose that's why the Common Law didn't treat you  with the same severity, the representation as to a  future factor as it did to a past factor.  Certain wisdoms and reasons in Common Law I suppose  and I am sure that's it or a reason for it anyway.  The second point is the question of the  continuation and what I would propose at this  juncture is that the trial stand down for a week and 359  N. Sterritt (for Plaintiffs)  Cross-exam by Ms. Koenigsberg  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  MR.  THE  MS.  THE  MS.  THE  MR.  THE  reconvene on a week Monday for the completion of Mr.  Sterritt's cross-examination and then the re-direct,  and the -- in the beginning -- and the beginning of  the next experts in the sequence that I have  indicated that they will be called.  So, in effect,  what I would seek to do in the next week is to  comply with my learned friends, Mr. Goldie in  particular, immediately, his document requests so  that the cross-examination can be completed, and  then to go on with the finalization of the evidence  of Mr. Sterritt and then proceed with the experts in  a weeks' time.  COURT:  Mr. Goldie or Ms. Koenigsberg?  GOLDIE:  Well, my lord, I don't really see any other way of  it.  COURT:  No, nor do I, but perhaps Ms. Koenigsberg does.  KOENIGSBERG:  Well, I suppose it is tilting windmills but I  had understood both Mr. Gottesfeld and Mr. Matthewes  were available and, very brief, I don't anticipate  lengthy cross-examinations on my part and I don't  anticipate lengthy cross-examinations on the part of  the Province, although, I really can't speak for  them.  And I just wonder if it -- even if we started  on Tuesday or Wednesday, we could probably complete  those two in next week and it would be -- progress  in this trial is slow but at least if we could keep  it steady, we might --  COURT:  Eventually win the race.  KOENIGSBERG:  Yes, might last.  COURT:  The problem of that I suppose is, anticipating what  Mr. Rush will say, is that we can't meet all these  demands for documents and conduct an examination at  the same time.  I suppose that's your position.  RUSH:  That's one of them, yes.  COURT:  Oh, I am as anxious as you are, Ms. Koenigsberg, to  get on with this but I really think that we have to  accept the inevitability of some parts of our fate  and I think this is one of them.  If counsel have  got themselves into difficulties in meeting  deadlines and schedules I think we ought not add to  that burden, and I think we will have to take next  week off.  I regret that, but I think that must be  so.  Is there any advantage in considering  re-arranging the -- not the following week, because  that's the week we will finish with Mr. Sterritt,  but the following week which would normally be the  week off? 360  N. Sterritt (for Plaintiffs)  Cross-exam by Ms. Koenigsberg  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  MS. KOENIGSBERG:  My lord, there is a commission of Mr. Boys  scheduled in Victoria.  I don't think we can  possibly.  THE COURT:  All right.  Well, we will stay to the same schedule.  MR. RUSH:  Well, I was going to reiterate my friend's position.  I think at least three of us in this room will be  there on the commission.  THE COURT:  All right.  Well then, with some regret, we will  have to adjourn until a week from this coming Monday  at ten in the morning.  Wish you all a pleasant  week.  Mr. Registrar, when we would adjourn, would  you phone Ms. Gosney and get confirmation from her  that this courtroom won't be needed in the meantime  and, if that's so, we can lock it up and counsel can  leave whatever they want to leave here.  If she says  that the room is needed, will you have her call me  in my chambers and I will see if I can talk her out  of it.  THE REGISTRAR:  Yes, my lord.  THE COURT:  Thank you.  THE REGISTRAR:  Order in court.  This court stands adjourned  THE COURT:  Thank you, madam reporter.  (PROCEEDINGS ADJOURNED TO OCT. 24, 198 8)  I hereby certify the foregoing to be  a true and accurate transcript of the  proceedings herein, transcribed to the  best of my skill and ability.  TANNIS DEFOE, Official Reporter  United Reporting Service Ltd.


Citation Scheme:


Citations by CSL (citeproc-js)

Usage Statistics



Customize your widget with the following options, then copy and paste the code below into the HTML of your page to embed this item in your website.
                            <div id="ubcOpenCollectionsWidgetDisplay">
                            <script id="ubcOpenCollectionsWidget"
                            async >
IIIF logo Our image viewer uses the IIIF 2.0 standard. To load this item in other compatible viewers, use this url:


Related Items