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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1988-10-12] British Columbia. Supreme Court Oct 12, 1988

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 3612  Proceedings  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  THE  MR.  THE  MR.  OCTOBER 12, 1988  VANCOUVER, B.C.  REGISTRAR:  Order in court.  In the Supreme Court of British  Columbia, Vancouver, this Wednesday, October 12, 1988.  In the matter of Delgamuukw versus Her Majesty The  Queen at bar, My Lord.  I caution you, witness, you are still under oath.  COURT:  Mr. Goldie.  GOLDIE:  My Lord, I found that I had omitted some documents  under Tab 15, and I have supplied my friends and the  Registrar with the complete set of documents under Tab  15.  COURT: They have been added to my brown book, have they?  GOLDIE:  They include some that were there yesterday, but I  hadn't reached Tab 15, so it's -- but that reminds me,  My Lord, that there are certain parts of the brown  book which I wish to tender as evidence or as  exhibits, rather.  Tab 1 simply consists of extracts  from the trial transcript, but Tab 2 consists of pages  1 and 2 of Mr. Sterritt's summary of June 28th, which  THE  MR.  THE  MR.  THE  MR.  THE  MR.  THE  THE  THE  MR.  THE  is not in evidence,  those 2 pages.  and I would tender as evidence  COURT: Which two is that?  GOLDIE:  Under Tab 2, My Lord.  COURT: Yes.  GOLDIE:  It's just two pages under that tab --  COURT:  Umh.  GOLDIE:  — of the brown book.  COURT:  Yes.  All right.  And you are asking Tab 2 to be an  exhibit?  GOLDIE:  Yes, I am, My Lord.  REGISTRAR:  Next exhibit, My Lord, is 739.  COURT:  739.  Thank you.  REGISTRAR:  And that's June 28th, 19 —  GOLDIE:  Pages one and two of June 28th, 1988, opinion of  Neil J. Sterritt.  REGISTRAR:  Uh-huh.  (EXHIBIT 739 - TAB 2 - SUMMARY OF NEIL  STERRITT OPINION - TWO PAGES - JUNE 28, 1988)  THE COURT:  Yes.  MR. GOLDIE:  I'm not asking that the extract from Dr. Daly's  opinion be marked as an exhibit, My Lord, under Tab 4.  That will be dealt with when he gets on the stand.  Under Tab 5 are the pages of the witness's field notes 3613  Proceedings  1 of his interview with Nancy Supernault of 4th of  2 September, 1986, and I wish to tender that, My Lord,  3 as an exhibit.  4 THE COURT:  That's several pages, is it?  5 MR. GOLDIE:  Yes, that runs to, I think, 11, 12, 13 pages —  6 THE COURT: All right.  7 MR. GOLDIE:  — of field notes dated 4th of September, 1986.  8 Informant, Nancy Supernault.  And I tender that as an  9 exhibit.  10 THE COURT:  That will be Exhibit 740.  11 THE REGISTRAR:  740.  12  13 (EXHIBIT NO. 740 - TAB 5-13 PAGES OF FIELD  14 NOTES BY N. STERRITT OF NANCY SUPERNAULT -  15 SEPTEMBER 4, 1986)  16  17 MR. GOLDIE:  There should go along with that, My Lord, the tape  18 of the interview with her.  That was played only in a  19 very limited extent, but the witness identified the  20 informant as Nancy Supernault and himself as the  21 interviewer.  22 THE COURT:  Yes.  Are you seeking to put in the entire tape as  23 part of Exhibit 740?  24 MR. GOLDIE:  I am, My Lord, and I am prepared to play the tape  25 if that's necessary.  I don't have a transcript of  26 that, but the notes themselves, from our examination,  27 follow the tape, and I think I went to the extent of  28 having the tape played, which identified or parallel  29 the first three paragraphs on page one of Exhibit 740.  30 THE COURT:  Any objection to the tape, Mr. Rush?  31 MR. RUSH:  Just that it should be marked as a separate exhibit.  32 That's all.  33 THE COURT:  All right.  34 MR. GOLDIE:  And that is the plaintiffs' document 5620, and  35 there are in fact two tapes.  So it would be 740-1 and  36 740-2.  37 THE COURT:  I'm sorry, the tapes will be 741?  38 MR. GOLDIE:  741 and dash 1 and dash 2.  These are copies that  39 were made for us by a commercial firm.  As my friend  40 stated yesterday, these tapes were delivered on  41 September the 20th to a commercial firm and copies  42 were made for us.  4 3 THE COURT:  Yes.  44 MR. GOLDIE:  I suppose technically the exhibits should be my  45 friends' document, but I have no objection to these  46 being marked -- the copies that were made for us being  47 marked as exhibits. 8614  Proceedings  1 THE COURT:  All right.  741-1 and 2.  2  3 (EXHIBIT NO. 741-1 - TAPE CASSETTE OF #1 OF 2  4 OF INTERVIEW OF N. SUPERNAULT)  5  6 (EXHIBIT NO. 741-2 - TAPE CASSETTE #2 OF 2 OF  7 INTERVIEW OF N. SUPERNAULT)  8  9 MR. GOLDIE:  Under Tab 6A is the affidavit and an extract of the  10 responses to the interrogatory of Alice Jefferies, and  11 I tender as the next exhibit, My Lord.  That affidavit  12 was sworn the 25th of March, 1987, and consists of the  13 affidavit and one, two, three, four, five, six, seven  14 pages.  15 THE COURT:  All right.  That will be Exhibit 742.  16 THE REGISTRAR:  742.  17  18 (EXHIBIT NO. 742 - TAB 6A - AFFIDAVIT OF ALICE  19 JEFFERIES - MARCH 25, 1987 WITH 7 PAGES  2 0                       ATTACHED)  21  22 MR. GOLDIE:  Then under Tab 6B is the affidavit, the first  23 affidavit of James Stevens sworn the 19th of February,  24 1987, to which is attached five pages.  2 5 THE COURT:  743.  26  27 (EXHIBIT NO. 743 - Tab 6B - AFFIDAVIT OF JAMES  2 8 STEVENS - FEBRUARY 19, 1987 WITH FIVE PAGES  2 9 ATTACHED)  30  31 THE REGISTRAR:  743.  32 MR. GOLDIE:  And under Tab 6C is a supplementary affidavit sworn  33 April 29th, 1987 to which is attached two pages.  34 THE COURT:  That will be 744.  35 THE REGISTRAR:  744.  36  37 (EXHIBIT NO. 744 - TAB 6C - SUPPLEMENTAL  38 AFFIDAVIT OF JAMES STEVENS - APRIL 29, 1987  3 9 WITH TWO PAGES ATTACHED)  40  41 THE REGISTRAR:  That's James Stevens as well?  42 MR. GOLDIE:  Yes, it is.  43 THE REGISTRAR: Thank you.  44 MR. GOLDIE:  And under Tab 8 is the cross-examination of Mr.  45 Walter Blackwater which took place on September 1st,  46 19 --  47 THE COURT:  I'm sorry, what tab is that? 3615  Proceedings  1 MR. GOLDIE:  Tab 8, My Lord.  2 THE COURT:  Thank you.  3 MR. GOLDIE:  Took place on September the 1st and 2nd of 1988,  4 and —  5 THE COURT:  Well, these are described as proceedings at trial.  6 Are they proceedings at trial?  7 MR. GOLDIE:  They are, of course, the cross-examination of the  8 witness on his territorial affidavit.  9 THE COURT:  The affidavit is an exhibit.  10 MR. GOLDIE:  The affidavit is an exhibit, Exhibit 605.  11 THE COURT:  Well, I'm in counsel's hands.  Is it necessary to  12 have the cross-examination marked as an exhibit?  13 MR. RUSH:  I don't think so.  I think it's correctly identified  14 on the face page.  The only concern I had was, and I  15 hadn't had a chance to check it, is to be sure that --  16 oh, yes, the re-examination by Mr. Grant is there.  17 THE COURT:  Is this — your understanding, Mr. Goldie, this is  18 the entire cross-examination?  19 MR. GOLDIE:  So far as I am instructed this is the entire  20 cross-examination and re-examination.  21 THE COURT:  Yes.  Well, my view is that as the affidavit went  22 in, cross-examination would also be in as evidence at  23 the trial.  24 MR. GOLDIE:  I am not sure what has been done with these  25 cross-examinations before.  There --  2 6 THE COURT: I don't either.  27 MR. RUSH:  I think this is the first one we have had to deal  28 with, in terms of having it presented to the court.  29 We have had, of course, all the affidavits, but we  30 haven't in fact treated in any way the  31 cross-examinations --  32 THE COURT:  Has Mr. Sterritt not been cross-examined on some  33 other evidence given in cross-examination?  34 MR. RUSH:  Not in respect of a territorial affidavit.  Not Neil  35 J. Sterritt.  N.B. Sterritt, his father, has been.  36 THE COURT:  I mean the witness, he hasn't been cross-examined on  37 examinations --  38 MR. GOLDIE:  Well, his own cross-examination, My Lord.  39 THE COURT:  Yes, but not others.  40 MR. GOLDIE:  But not others.  41 THE COURT:  All right.  Well, I don't see any magic or any harm  42 in having the cross-examinations marked.  The only  43 thing is I wouldn't want to put at risk any  44 cross-examination that may have been conducted on  45 grounds that it wasn't marked.  I think it's part of  46 the trial now.  47 MR. GOLDIE:  Well, I — it's a question — I think it's a purely 3616  Proceedings  1 formal question --  2 THE COURT:  Yes.  3 MR. GOLDIE:  -- of how it becomes part of the trial transcript.  4 THE COURT:  Yes.  5 MR. GOLDIE:  If it could be assigned a transcript number or  6 something like that, but otherwise it's --  7 THE COURT:  Well, I think it should be part of the exhibit  8 established by the affidavit.  9 MR. GOLDIE:  Well, that would be perfectly satisfactory, in  10 which case it would be a dash 2 of Exhibit 605.  11 THE COURT:  Was the affidavit in that case 605?  12 MR. GOLDIE:  The affidavit, I am instructed, is 605.  13 THE COURT:  Any problem with that, Mr. Rush?  14 MR. RUSH:  No.  We should take the precaution, I think, of  15 marking any exhibits that are exhibits within the --  16 THE COURT:  Yes.  17 MR. RUSH:  -- cross-examination and re-examination --  18 THE COURT:  All right.  19 MR. RUSH:  — as well.  20 THE COURT: I'm sure there are some —  21 MR. GOLDIE:  Yes, I have them here, My Lord.  22 THE COURT:  All right.  23 MR. GOLDIE:  These would then be 605-2A, B and C.  24 THE COURT:  All right.  Well, then, the affidavit was 604 —  25 THE REGISTRAR: 605.  26 THE COURT:  605.  So the cross-examination and re-examination  27 will be 605-1.  Is that all right?  28 MR. GOLDIE:  That's satisfactory.  29 THE COURT:  Or should we say 605 capital A, so that the exhibits  30 can have the same number that they had in the  31 cross-examination?  32 MR. GOLDIE:  All right.  That would be better.  33 THE COURT:  And then the exhibits.  There are three exhibits.  34 MR. GOLDIE:  5.  35 THE COURT:  5 exhibits?  36 MR. GOLDIE:  Yes.  37 THE COURT:  So they will be 605-1 to 5 inclusive?  38 MR. GOLDIE:  Yes.  And does Your Lordship wish me to read the  39 descriptions?  4 0 THE COURT: I don't think so.  41 MR. RUSH:  I think that should be 605-A-l.  42 THE COURT:  All right.  A-l to 5 inclusive.  43  44 (EXHIBIT NO. 605A - 1 - LETTER DATED JANUARY  4 5 7, 1908 FROM R.G. LORING TO WHOM IT MAY  4 6 CONCERN - EXHIBIT 1 OF CROSS EXAM OF W.  4 7 BLACKWATER) 3617  Proceedings  1  2 (EXHIBIT NO. 605A - 2 - AFFIDAVIT OF ROBERT  3 STEVENS DATED AUGUST 7, 1986 - Q and A 5 9C AND  4 MAP 2 of 3 for WII MINOSIK)  5  6 (EXHIBIT NO. 605A - 3 - APPLICATION FOR  7 REGISTRATION OF TRAPLINE  - W. BLACKWATER -  8 JUNE 4, 1951)  9  10 (EXHIBIT NO. 605A - 4 - RETURN OF REGISTERED  11 TRAPLINE - W. BLACKWATER - MAY 20, 1953)  12  13 (EXHIBIT NO. 605A - 5 - LETTER - FEBRUARY 9,  14 1979 FROM W. BLACKWATER TO DAVID BLACKWATER)  15  16  17 MR. GOLDIE:  Thank you.  Tab 9, My Lord, is the transcript which  18 we have prepared from the tape of Mr. Sterritt's  19 interview with Mr. Walter Blackwater on May the 22nd,  20 1983.  I have not finished with that, but I will be  21 tendering that later as an exhibit.  22 THE COURT:  All right.  You want to reserve a number for it now?  23 MR. GOLDIE:  Yes, if that's satisfactory.  2 4 THE COURT:  745.  25 THE REGISTRAR:  745.  26 MR. RUSH:  My Lord, the only submission I would make in respect  27 of this is that the tape is -- has been transcribed  28 with a number of notations of unintelligibility and  29 also some editorial commentary, and subject to  30 frailties of that kind, and frailties -- I don't know  31 if my friend is going to put the whole of the tape to  32 Mr. Sterritt -- or not the tape but the transcript.  I  33 think that subject to the fact that not all of this is  34 confirmed by a witness at some point in the trial, I  35 don't object to it being marked, but I think that  36 there are those frailties, and I would think that  37 marked subject to those conditions.  38 MR. GOLDIE:  Well, they are not frailties, they are faithful  39 reproductions of what the tape says, but the -- my  40 friend's point is that the witness has not accepted  41 the whole transcript.  42 THE COURT:  Yes.  43 MR. GOLDIE:  And I am quite aware of that.  And if it is  44 required, I will have the entire tape played with the  45 transcript in front of the witness.  46 THE COURT:  Are you proposing to put in the tape as well?  47 MR. GOLDIE:  Yes, I am. 3618  Proceedings  1  THE  COURT:  2  3  4  5  MR.  GOLDIE  6  THE  COURT:  7  8  MR.  GOLDIE  9  10  THE  COURT:  11  MR.  RUSH:  12  MR.  GOLDIE  13  MR.  RUSH:  14  15  THE  COURT:  16  MR.  RUSH:  17  18  MR.  GOLDIE  19  20  21  22  23  24  25  THE  COURT:  26  1  27  28  29  1  30  31  32  MR.  RUSH:  33  34  35  36  THE  COURT:  37  MR.  RUSH:  38  THE  COURT:  39  40  MR.  GOLDIE  41  42  THE  COURT:  43  44  45  46  MR.  GOLDIE  47  All right.  I think as long as the tape goes in, and  it must be, I think, understood that if someone is  able to make out a different sound from the tape than  the transcriber, then the tape will govern.  :  Yes.  All right.  The tape, then, will be 745A in due  course.  :  Yes.  And I would ask that the -- that that tape be  the original.  All right.  Are you asking that I file the original tape?  :  Yes, I am.  Well, my friends have asked for copies of these.  They have got them copied.  That will leave you without a copy.  That will leave me without a copy.  I have the  original, and that's all that I have.  :  Well, I have just one copy, but I think the  importance of what I am saying, My Lord, is a  reflection of what Your Lordship just said, that the  tape will govern.  I don't want any suggestions that  in the process of making a copy something is rendered  unintelligible that wasn't unintelligible in the  original tape.  All right.  Well, I think in principle it's no  different than what happened when Mr. Goldie called  upon Mr. Rush to produce a certain document from his  production and put it in.  Mr. Rush would then be  deprived of that document, but I think that the -- Mr.  Rush must have the facility to get another copy if he  wishes.  Well, it's a question of paying for the other copy at  this point, My Lord, and if my friend -- he sought to  pay for the copies that he got, and that was fine by  us .  Yes.  How much money are we talking about here?  I don't know.  Every little bit counts.  Seven counsel before me, and I'm sure the cost of  their time is as much as we are using.  :  We have just exceeded the value of the copy, which  I am instructed is four dollars.  Four dollars.  Well, I think -- Mr. Rush, you may  extract the original any time and have a copy made.  If it costs more than four dollars, then I think your  friend should make up the difference.  :  I agree to that, My Lord.  That goes as far as I propose going with respect to. 3619  N.J. 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  marking this morning.  THE COURT: Thank you.  MR. GOLDIE:  Q   Mr. Sterritt, so far as you've heard the tape and have  been able to compare it with the transcript which is  under Tab 9 and is now Exhibit 745, it has been a  faithful reproduction?  A   Yes, it's -- it looks like a fair reproduction to me.  Q   I realize that you haven't heard the entire tape, and  my question was just limited to what you have heard.  A   Yes.  Q   Before we play some other parts of it, however, I want  to go to the transcript or the tape which -- part of  which I played to you yesterday.  It's at page 26 of  the transcript, and I am going to ask Ms. Sigurdson to  play it from just before the end of -- just before an  interruption, which is shown in the transcript as:  "(TAPE SILENT)  (MUSIC)"  Can you do that.  THE COURT:  I'm sorry?  MR. GOLDIE:  I'm sorry, on page 26 of the transcript, My Lord.  THE COURT:  Thank you.  MR. GOLDIE:  Q   And I think we are going to come on -- just a second.  I think we are going to come on just about rivers  going down to the Nass, interjection by Mr.  Blackwater.  "WB:  ... rivers going down to the Nass eh,  NJS:  O.K.  They just hit the Nass and it  goes...goes down towards this side there.  NJS:  Um hmm.  WB: It's about uh 10...10 miles I guess and it  hit the..."  (MUSIC)  THE COURT:  Don't stop.  MR. GOLDIE:  Q   Mr. Sterritt, I am not going to ask you to explain the  silence, but perhaps you can tell us where the music  comes from.  A   I don't know whether that was -- whether when I went  to do the interview that morning whether I grabbed one  of the tapes that my sons had used or not.  I have no  idea.  It's almost as good as Peter Grant putting up 8620  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 the map and the noon hour bell went, noon hour music.  2 Q   Would you just go back, please, Ms. Sigurdson.  I want  3 to get the statement that was being made when the tape  4 went silent.  5  6 "WB:  ...river's going down to the Nass eh?  7 NJS:  Yeah.  8 WB:  O.K.  They just hit the Nass and it  9 goes...goes down towards this side there...  10 NJS:  Um hmm.  11 WB:  It's about uh 10...10 miles I guess and  12 it hit the..."  13  14 Now, would you agree with me that the tape goes  15 silent in the middle of Mr. Blackwater's sentence?  16 A   Yes.  17 Q   Do you have any recollection of turning your recording  18 device off in the middle of a sentence?  19 A   No, I don't.  20 THE COURT:  Well, it was the end of the tape, wasn't it?  21 MR. GOLDIE:  No, not the end of the tape, My Lord.  It goes  22 silent and then the music starts.  23 THE COURT:  Yes.  And then the tape —  24 MR. GOLDIE:  It's music all the way to the end of the tape.  25 THE COURT:  Oh, I see.  Because the transcript shows tape 1,  26 side 2.  27 MR. GOLDIE:  28 Q   Well, that's where I am going to go in a minute.  But  29 the -- we are approaching the end of the tape of side  30 1, but Your Lordship will have heard that the tape  31 goes silent in the middle of a sentence, then there is  32 a silence, and then there is music, and the music goes  33 on for a little while, not too long.  Do you have any  34 recollection of turning your recording device off in  35 the —  36 A   I don't recall what happened there.  I have no idea.  37 Q   Is there any possibility that some part of his answer  38 was erased?  39 A   No.  No.  I haven't listened to that tape since the  40 day it was done.  41 Q   Uh-huh.  Where has it been kept?  42 A   It was in my possession, and then when Mr. Rush wanted  43 it, I turned it over to him.  44 Q   And that arose out of a request that was made when?  45 A   I don't -- I'm not sure when I turned it over to him.  46 Q   Well, the first request for tapes was made in December  47 of 1987.  Is that -- does that accord with a 8621  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 recollection that you have as to when you turned it  2 over?  3 A   I don't recall.  4 Q   But your evidence is that it went from your possession  5 to that of Mr. Rush's?  6 A   Or Mr. Grant, yes.  7 Q   You have no recollection which?  8 A   No, I don't.  9 Q   Was it ever in the possession at the Tribal Council  10 Centre?  11 A   It may have been.  It might have been.  12 Q   When you say it may have been, you mean it may have  13 been before it was turned over to Mr. Rush or Mr.  14 Grant?  15 A   I don't recall.  I can't remember.  16 Q   Yes.  Well, between the time, then, that it was in  17 your custody and the time when it reached the hands of  18 counsel, it may have been in the hands of third  19 parties?  20 A   It would only have been the library, the staff at the  21 Tribal Council that operate the library.  22 Q   You understand that I want to establish whether this  23 tape could have been tampered with.  24 A   Yes, I understand that's what you're saying, but there  25 is -- I never did anything, and no one else did.  I  2 6 don't see why anyone would have.  The only thing that  27 they would have done was someone prepared a copy for  28 Mr. Rush, but it's -- it seems to follow to tape 1,  29 side 2.  It seems to be the same thing.  30 Q   That's what I am going to come to in a minute.  I am  31 not suggesting that it was tampered.  You understand  32 that, Mr. Sterritt.  I want to establish if there was  33 any custody in which such an event could have taken  34 place.  35 A   No.  No.  The library simply would have re-copied it  36 and put it -- given a copy to Mr. Rush or the original  37 to Mr. Rush or whatever they did.  That would be all.  38 Q   You would agree with me, however, that if this tape  39 records what took place on May the 22nd, 1983, that  40 you must have turned the machine off in the middle of  41 Mr. Blackwater's sentence?  42 A   I may have noticed that I was coming to the end and  43 then shut it off and then gone to the other side.  44 Q   All right.  45 A   I may have done that.  I don't recall.  46 Q   All right.  Well, I would like to turn over now.  47 8622  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 "NJS:  See.  O.K. he comes along... along  2 Angodjus eh?  3 WB:  Yeah.  4 NJS:  And then where does he...when he comes  5 off that mountain where does he go down to hit  6 the Nass...that...that boundary?  7 WB:  Uh...  8 NJS:  See here's Angodjus, here.  9 WB:  Yeah.  There's...uh... there's the Nass  10 right down here(?)...  11 NJS:  Here's the Nass.  12 WB:  Yeah.  Yeah.  Where's that little creek  13 uh runs into it...Nass?  There's another  14 little creek.  That's where they comes down.  15 NJS:  Um...What's the name of that creek?  16 WB:  That's the...uh forgot the name of that  17 but I know it's the creek (unintelligible) the  18 small creek you know that's comes  19 right up the mountain and that's how fars he  20 goes on his trapline.  He covers quite a bit  21 of area uh...  22 NJS:  Is it Xsi Lax Uu?  23 WB:  Yeah.  24 NJS:  Is that the creek?  25 WB:  No. Xsi Lax Uu.  No that's not the Xsi  26 Lax Uu, that's...Xsi Lax Uu is over by...  27 NJS:  Right here, eh?  2 8 WB:  Yeah.  That uh...when I'm gonna...when  29 I'm gonna cover to the Xsi Lax Uu you gonna  30 mixed up...uh...because's just almost  31 the same as like Miin Anhl Gii, eh.  They got  32 two Xsi Lax Uu."  33  34 MR. GOLDIE:  35 Q   Let's stop it there.  Now, Mr. Sterritt, can you  36 identify for His Lordship who the "he" is in the  37 person that we hear first on the second side of tape  38 one, which is yourself?  Your Lordship will have seen  39 that the first side stops in the middle of Mr.  40 Blackwater's sentence, the second side starts with Mr.  41 Sterritt saying:  42  43 "See.  O.K. he comes along... along Angodjus  44 eh?"  45  46 And I am asking if he can identify who the "he" is.  47 A   To the best of my knowledge we are talking about Jimmy 8623  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 Blackwater, Wii Minosik.  2 Q   Well, clearly it was Jimmy Blackwater that was being  3 discussed when the tape went silent on side 1.  You  4 would agree with that, would you not?  5 A   Yes, following from page 25.  6 Q   Where he talks about my dad?  7 A   Yes.  8 Q   All right.  Now, you are referring to "he", and I am  9 suggesting to you that it is not Mr. -- Jimmy  10 Blackwater, but it is Luus.  And I direct your  11 attention to the discussion on page 27 where he  12 says -- where you say about three quarters of the way  13 down the page:  14  15 "NJS:  Yeah.  No.  Albert showed me.  I  16 figured that out when we were there."  17  18 And you are talking about two creeks, and isn't that  19 the territory of Luus, Albert being Albert Tait, the  20 son of Abel Tait?  21 A   Yes.  22 Q   So it would appear, would it not, that the tape went  23 silent when Mr. Blackwater was talking about his  24 father's property, and it comes alive, if I may put it  25 that way, when you are discussing with him the  26 territory of Luus?  27 A   No.  I think we are still talking about Wii Minosik,  28 because Xsi Lax Uu Andoo'o, X-s-i space L-a-x space  29 U-u space A-n-d-o-o'o, is the territory -- just south  30 of Wii Minosik territory in that area, and that's why  31 we are talking about, if I follow this right, that's  32 why we are talking about -- and he's referring to Xsi  33 Lax Uu, X-s-i space L-a-x space U-u.  And I think we  34 are still -- yes, we are still talking about the Wii  35 Minosik territory, where it goes.  36 Q   I want you to be sure of the context that I am  37 referring to, because over on page 28 you make the  38 suggestion that the name of the creek that he is  39 trying to identify is Xsi Lax Uu Andoo'o, and he  40 agrees with that.  41 A   Uh-huh.  42 Q   And isn't that the name that is given to the Luus  43 territory?  44 A   Yes, it is, but if you come into the middle of page  45 28, I am just -- I say there:  46  47 "NJS:  O.K.  So I'm just trying to figre out 8624  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 where Wii Minosik comes down to the Nass,  2 where he hits it..."  3  4 And there Xsi Lax Uu Andoo'o is the creek just south  5 of Wii Minosik's territory, and we are using that as a  6 reference point as to where Wii Minosik comes down to  7 the Nass, where -- is just on the height of land just  8 north of there.  9 Q   You have agreed with me, however, that the creek Xsi  10 Lax Uu Andoo'o is the name of the -- is the  11 identification used for the Luus territory.  12 A   Yes.  13 Q   Yes?  14 A   Yes.  15 Q   All right.  Just one other question.  You identify or  16 direct Mr. Blackwater's attention, and I am now  17 talking about the part of the interview which is on  18 side 2 of tape 1, you direct Mr. Blackwater's  19 attention to Angodjus.  That is a mountain?  20 A   Yes.  21 Q   As you thought at the time?  22 A   Yes.  23 Q   And you thought at the time that it identified the  24 feature which was the lay between the boundary of Mr.  25 Blackwater's father and the territory of Luus?  26 A   I was -- yes, I was having some difficulty determining  27 where Angodjus was in the distant -- or pardon me --  28 let's see -- in the area between Poison Mountain and  29 over toward Blackwater, and I was referring to it as  30 Angodjus, but that in fact Angodjus is a mountain down  31 closer to -- down at -- in the area of Poison  32 Mountain, if I remember it.  33 Q   It is now generally thought to be Poison Mountain,  34 isn't it?  35 A   Not thought to be, it is Poison Mountain.  36 Q   Well, at that time you thought it was an entirely  37 different mountain, didn't you?  38 A   Yes, I wasn't certain, but certainly the people who  39 had travelled through that area knew where Angodjus  4 0 was.  41 Q   Well, you were sufficiently certain to have written it  42 in on your land use reference data map, Exhibit 726-A,  43 and that was passed onto Mr. Marvin George and was an  44 identifying feature on Exhibit 102, wasn't it?  45 A   Yes, it probably was.  46 Q   Yes.  47 A   But as I mentioned, that was a period of information 8625  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 gathering and not -- that led up to the review that I  2 began to do in 1986, and the checking that led into  3 the phase with the affidavits.  4 Q   Well -- but in 1983 both you and Mr. Blackwater were  5 mistaken?  6 A   No, not Mr. Blackwater.  I would have been, but not  7 Walter.  8 Q   Well, you -- he didn't disagree with you when you  9 pointed out Angodjus, did he?  10 A  Well, Walter, as I mentioned, was -- I may have been  11 pointing out a mountain.  I don't know whether he was  12 really following that, but it was me that was saying  13 it, and he might have been agreeing.  But he knows  14 where Angodjus is, and he has shown it to me.  15 Q   Well, perhaps he did at some later date, but he didn't  16 at that time.  17 A  Well, we were on a map that is difficult for him to  18 follow or understand or read.  19 Q   Well, Mr. Sterritt, he sufficiently followed the map  20 to understand what you were pointing at and to relate  21 it to other features, didn't he?  22 A   Not really, no.  No, that's not true.  He -- if you  23 had a map in front of you at any time with Walter and  24 you started to point out places, he would immediately  25 wander all over the map, as if he was following right  26 within the immediate vicinity of the area that was  27 being described.  He could not follow a map.  28 Q   You used the map throughout your entire interview,  2 9 didn't you?  30 A   Of course I did, because I was looking at it and using  31 it, and I thought that he understood it, but he  32 didn't.  33 Q   That is your present evidence.  Is there anything  34 further you can say to defame Mr. Blackwater's  35 statements in this interview?  36 MR. RUSH:  I object to that.  37 THE WITNESS:   I am not defaming him.  That's ridiculous.  3 8 THE COURT:  Just a moment.  39 THE WITNESS:   I am not defaming him.  4 0 THE COURT:  Gentlemen.  Just a moment gentlemen.  I think in  41 order to maintain a semblance of order it's necessary  42 that I hear Mr. Rush on his objection.  43 MR. RUSH:  My objection is based on what is in the interview,  44 and if my friend wants to put truly to the witness  45 what is said in the interview and make suggestions to  46 the witness, as they have been doing, that's one  47 thing, but for my friend to decide on how to 8626  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 characterize what the evidence is, I think that's  2 quite another, and I think it's an improper suggestion  3 that he has put to the witness.  It has no bearing on  4 the evidence that he's been examining on up to this  5 point.  6 MR. GOLDIE:  Well, I had reference to the witness's statement  7 yesterday that Mr. Blackwater was not himself and that  8 he was suffering from, if I took him correctly, from a  9 hangover.  10 THE WITNESS:  No, I didn't say that.  11 MR. GOLDIE:  12 Q   You said that he had had a hard night, I believe.  13 A   He did.  14 MR. RUSH:  He was tired, as I recall this, My Lord.  15 THE WITNESS:   I want to explain that.  16 THE COURT:  Mr. Goldie is making a submission now.  I must say,  17 though, in response to Mr. Goldie's most -- last  18 comment, that I certainly took the evidence to suggest  19 that Mr. Blackwater had come up from Terrace the  20 previous day and that he had had a hard night, and he  21 wasn't in good shape.  I took that to be that he had  22 been drinking.  That's the way I took the evidence.  23 But if that isn't so, perhaps when we are disposed  24 with this objection, that matter can be clarified.  25 Sorry, Mr. Goldie, you should proceed with your  26 response to your friend's objection.  27 MR. GOLDIE:  Well, I took -- I take exception to a statement  28 such as that, which seeks to downgrade the evidence  29 found in this interview for the first time.  And I say  30 that that evidence was used by this witness for the  31 purpose of identifying features which were then passed  32 onto Mr. George, and which found their way into  33 Exhibit 102.  There isn't the slightest sense that Mr.  34 Blackwater's evidence was not to be relied upon until  35 we are in court in 1988.  Now, perhaps I need not  36 press my question.  It is one, perhaps, more of  37 argument.  3 8 THE COURT:  Yes.  39 MR. GOLDIE:  But that statement that I made was not made without  40 some concern over the way this witness has treated Mr.  41 Blackwater's evidence.  42 THE WITNESS:  Well, I want to add to that.  43 THE COURT:  Just a moment.  I take it, then, that you are not  44 pressing the witness for an answer to your question  45 you put to him?  46 MR. GOLDIE:  I regard that as argument.  47 THE COURT:  All right. 8627  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 MR. GOLDIE:  2 Q   Now, Mr. —  3 A   I want to add to that.  First of all I have the  4 highest regard for Walter Blackwater.  5 Q   Oh, of course.  6 A   In this situation I phoned -- he didn't know that I  7 was going to call him, and I phoned him in the  8 morning.  It was either a Saturday morning, but I  9 think it was a Sunday morning.  I phoned him.  I  10 pressed him to see if I could come and see him, and he  11 said yes.  I said I wouldn't be too long.  As it  12 turned out, I was whatever it took to go through a  13 tape.  He was tired.  He had possibly done some  14 drinking, but not a lot necessarily.  He wasn't  15 hungover, but he was tired.  His wife was in the  16 background and wanted to get going to Rupert, because  17 they had to get back to Rupert.  He had to work on the  18 Monday.  He -- from the way -- and as I recall it,  19 there are times during the interview where it appeared  2 0 to me that he wanted to -- he wanted to get away.  He  21 wanted to head on.  And I carried on probably longer  22 than I should have.  But the information that he gives  23 in here is generally very good.  There is information  24 that I give or that I refer to.  I am mistaken, but  25 Walter Blackwater, if he gave an impression that he  26 hadn't been in an area there, that is certainly not  27 true, because Walter had been throughout that area  28 around Canyon Lake, had lived there, trapped there,  29 been there with his mother and with other people.  30 Q   Mr. Sterritt, please, you are talking about matters of  31 which you do not have personal knowledge.  Mr.  32 Blackwater has given evidence of what he did when his  33 mother was alive, and she died in 1974.  He gave  34 evidence of what he did when his father was alive, and  35 his father died in 1966.  You have no personal  36 knowledge of those matters, do you?  37 A  Well, I have been -- I have flown through that area  38 with Walter Blackwater, and he has named the creeks.  39 Q   Well, that's fine.  Let him speak for himself.  4 0 A   I do have that knowledge.  41 Q   You have that knowledge from him?  42 A   I was there with him.  He showed me the creek.  43 Q   Yes, Mr. Sterritt.  I say let him speak for himself.  44 You are simply repeating what you heard from him, and  45 he is speaking right here, isn't he?  46 A   Yes, he is speaking there.  47 Q   All right.  Well, let him speak for himself. 362?  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 MR. RUSH:  This transcript was never put to Mr. Walter  2 Blackwater.  3 MR. GOLDIE:  Yes, you are quite right.  Mr. Mackenzie was put  4 under a considerable disadvantage because this tape  5 was not concealed until after Mr. Blackwater's  6 cross-examination.  7 THE COURT:  Well, was the transcript available at the time of  8 the cross-examination?  9 MR. GOLDIE:  No, My Lord.  We made the transcript.  10 THE COURT:  I see.  So Mr. Mackenzie didn't have the tape or the  11 transcript?  12 MR. GOLDIE:  No.  13 MR. RUSH:  This tape wasn't concealed.  14 MR. GOLDIE:  Privilege was claimed, and Mr. Mackenzie asked for  15 it at the outset of his cross-examination.  16 THE COURT:  All right.  17 MR. GOLDIE:  We never got it until September 21st.  18 THE COURT:  So Mr. MacKenzie could not have put to him —  19 MR. RUSH:  That is so, and I retract that.  But if my friends  20 had wanted to put this to Mr. Walter Blackwater, they  21 certainly could have when they received it.  If they  22 wanted to re-open their cross-examination, in my  23 submission they could have sought to do that.  24 MR. GOLDIE:  We may very well make an application to that end.  25 THE COURT:  All right.  But —  26 MR. GOLDIE:  But I am dealing with the person who interviewed  27 Mr. Blackwater in 1983.  28 THE COURT:  All right.  Well, we have now established that the  29 transcript could not have been put to Mr. Blackwater,  30 and Mr. Sterritt has given us a -- some further  31 evidence on the condition of Mr. Blackwater at the  32 time of the interview.  Does that clear up the --  33 MR. GOLDIE:  Yes.  34 THE COURT:  — the matters that we have before us at this  35 moment?  36 MR. GOLDIE:  I should make it clear, My Lord, that this  37 transcript was produced in my office --  38 THE COURT:  I understand that now.  39 MR. GOLDIE:  -- after we received the tape on September 22nd.  4 0 THE COURT:  Yes.  All right.  41 MR. GOLDIE:  And it is clear that if Mr. Mackenzie had had this  42 tape, his cross-examination of Mr. Blackwater would  43 have been very different.  44 THE COURT:  Yes.  All right.  45 MR. GOLDIE:  46 Q   Now, Mr. Sterritt, I want to go onto some other  47 matters dealing with this.  In 1983 would you agree 8629  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 with me that Mr. Blackwater agreed with your  2 suggestion that Baskyelaxhaa, that's the Canyon Lake  3 territory -- I am referring to page 44 of the  4 transcript.  At the bottom of that you are recorded as  5 saying:  6  7 "NJS:  Now, Tom Sampson, but Baskyelaxhaa owns  8 Canyon Lake below or...  9 WB:  Yeah Baskeylaxhaa."  10  11 That was your suggestion, was it not?  12 A   Yes, it was my suggestion, but -- let's see.  He is  13 saying on page 44 that Tom Sampson, who is Gibeumget,  14 G-i-b-e-u-m-g-e-t, goes onto Canyon Lake area.  He  15 goes onto say about two more points down that it used  16 to take him seven days to go from one end of Tsinhl  17 Denden, T-s-i-n-h-1 space D-e-n-d-e-n, to the other  18 end, which is the Canyon Lake area, and they were  19 walking through there, and then to come back again.  20 Q   Perhaps would you like to hear it played.  Would you  21 play that portion.  22 THE COURT: Where are you going to start, Mr. Goldie?  23 MR. GOLDIE:  I am going to start where Mr. Sterritt started.  So  24 that he says -- Mr. Blackwater says:  25  26 "So that's far as I know Tom Sampson goes way  27 up to here ..."  28  29 THE COURT:  You are going to start there?  30 MR. GOLDIE:  I am going to start there and go on from there.  31  32 "WB:  So that's far as I know Tom Sampson goes  33 way up to here I don't how far they go up  34 right up to Tsinihl Denden.  35 NJS:  I'll be darned.  36 WB:  Yeah.  That's uh covered a big area too.  37 NJS:  (Unintelligible)  Gee.  Yeah.  It's a  38 long ways.  39 WB:  Yeah a long ways a long, long way...1  40 used to take me seven day to Tsinihl  41 Denden to the other end.  42 NJS:  Is that right.  43 WB:  We were walking, we walking.  44 NJS:  Tsk, tsk, tsk.  Gee (unintelligible).  45 WB:  A long way, a long ways...way across the  46 Nass and go up and the other day were all real  47 real take me seven days to go 8630  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 there...and come back agin.  2 NJS.  Now, Tom Sampson, but Baskyelaxhaa owns  3 Canyon Lake below or...  4 WB:  Yeah Baskeylaxhaa.  5 NJS:  But Tom Sampson was allowed to go on  6 there...  7 WB:  Yeah they're allowed to go on there yeah.  8 NJS:  I see and who owns across the Nass up  9 there?  10 WB:  Duh...  11 NJS:  That's Lax Gibuu that's  12 uh...Baskyelaxhaa's goes on this one here.  13 WB:  Yeah.  14 NJS:  But it's uh...they got their own  15 trapline down this way towards uh Nass River  16 eh?"  17  18 I -- would you not agree with me that it was your  19 suggestion that Baskyelaxhaa owned Canyon Lake?  20 A   Yes, I agree that was what I said there.  21 Q   Yes.  22 A   But Walter is in this here, he is also referring to  23 Tom Sampson being there, and later on when we got into  24 more detail he described where the territory of  25 Baskyelaxhaa was, and it is just south of there, and  26 that is the Canyon Lake area and Canyon Creek and Vile  27 Creek are the territory of Niist and Tom Sampson, and  28 the others went into that area.  29 Q   Well, Mr. Blackwater was making it clear that Tom  30 Sampson had certain trapping rights, isn't that right?  31 A   Yes.  32 Q   But he agreed with your suggestion that Baskyelaxhaa  33 owned Canyon Lake?  34 A  Well, that's what he said there, but I think if --  35 first of all if we had been -- if he had been speaking  36 Gitksan, not just in English but in Gitksan, and if we  37 had explored that further, as we did later, he would  38 have clarified where Baskyelaxhaa went.  39 Q   Yes.  That's speculation on your part?  40 A  Well, no, it's not, because later he did clarify that.  41 Q   Maybe he did, but at the time he agreed with your  42 suggestion?  43 A   Yes, he agreed with that there.  44 Q   Yes.  45 A   But as I say, later on he made it clear that  46 Baskyelaxhaa is south of there.  47 Q   Now, would you point out to His Lordship where the 3631  N.J. 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  territory that we are talking about is?  A  Which one?  Q   Baskyelaxhaa, the Canyon Lake territory.  A   The Canyon Lake territory is the -- there is the  Skeena here and the Nass River here, and when we left  Slamgeesh that time we flew right up the creek and  down, and then land down at the -- down here.  This is  the Canyon Lake area here.  THE COURT:  This is Baskyelaxhaa?  THE WITNESS:   Baskyelaxhaa is just south of there.  MR. GOLDIE:  Q   On Exhibit 102 the Canyon Lake territory, as shown  with Niist as with Baskyelaxhaa's name below it --  A   Yes.  Q   And I suggest to you --  THE COURT:  What?  THE WITNESS:  No, that's — that's this one.  This is Canyon  Lake right here.  THE COURT:  Yes.  THE WITNESS:  This is where we flew, right across here and down  to the Nass and then down this way, and what this  combines is both Niist, the whole of Niist and  Baskyelaxhaa within it.  MR. GOLDIE:  Q   And that was the state of your knowledge at that time?  A   Yes.  Q   And I suggest to you that you had passed onto Mr.  Marvin George the information that Baskyelaxhaa --  that was his territory, he being a chief in the House  of Niist.  A   Baskyelaxhaa -- well, it wasn't clear at the time.  This was a draft map, this 102, and it wasn't clear to  me the relationship between Baskyelaxhaa, Niist,  because Baskyelaxhaa is a brother of -- well, Billy  Blackwater is the brother of David and Walter, but  that was clarified later.  Q   All right.  And on page 46 of the transcript under Tab  9 you ask him who owns Dam Axws, A-x-w-s.  THE COURT:  Where is that?  MR. GOLDIE:   On page 46, My Lord, of the transcript.  THE COURT:  Where is that?  MR. GOLDIE:  About halfway down Mr. Sterritt says —  THE COURT:  Oh, yes, I see it.  Yes.  MR. GOLDIE:  Says:  "NJS:  Like that Dam Axws, who would own that?  WB:  Baskyelaxhaa." 3632  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1  2  3  4  5  A  6  Q  7  8  9  10  A  11  Q  12  A  13  Q  14  15  A  16  Q  17  A  18  Q  19  20  THE  COURT:  21  MR.  GOLDIE  22  THE  COURT:  23  MR.  GOLDIE  24  THE  COURT:  25  MR.  GOLDIE  26  27  28  ]  29  THE  COURT:  30  MR.  GOLDIE  31  Q  32  33  34  A  35  36  37  38  Q  39  40  41  42  43  44  45  A  46  47  Q  Or Mr. Blackwater says Baskyelaxhaa.  And that's a small lake in the Canyon Lake territory,  is it not?  Yes, it is.  Right.  And the belief in the proposition that  Baskyelaxhaa owned the Canyon Lake territory was such  that Exhibit 5 shows him as the owner of that  territory, does it not?  Yes, on Exhibit 5, which is a draft map.  That's the May, 1987 map?  Oh, just a minute.  Talking about 102?  Talking about Exhibit 5.  It's overlay number 8.  Yes,  that's it.  Yes, that appears on 102.  No, Exhibit 5.  Or Exhibit 5 rather.  And that's the map that was delivered in May of 1987  under Mr. Grant's --  I'm sorry, didn't you mention overlay 8?  :  I think that --  Did you not say overlay 8?  :  Yes, overlay 8 is Exhibit 5, My Lord.  Oh, yes.  All right.  Yes, thank you.  :  I am not sure whether it shows up on the small  overlay, but Your Lordship will see that in the large  one the territory that we have been talking about is  marked as Baskyelaxhaa.  Yes.  So at least in May of 1987 your view was still that  Baskyelaxhaa was the owner of the Canyon Lake  territory?  No, not necessarily.  At that time I was doing a  review, and I didn't take it for granted about any  particular territory at that point.  I was doing a  review of the internal territories.  We have been through this before, but in any event  there is a change between Exhibit 102, which  identifies that territory as Niist and whose House  Baskyelaxhaa is a sub-chief, and Exhibit 5 of 1987, in  which the territory is identified as belonging to  Baskyelaxhaa alone.  You would agree with that,  wouldn't you?  I don't recall what the Statement of Claim reads with  regard to Baskyelaxhaa.  Well, we are not talking about the Statement of Claim. 8633  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 A  Well, you are talking about --  2 Q   Talking about Exhibit 102, which is the map of  3 October, 1985, and Exhibit 5, which is a map of May,  4 1987.  5 A   But you mentioned Baskyelaxhaa being a sub-chief in  6 the House of Niist.  7 Q   Well, isn't that what the code on the side of Exhibit  8 102 says?  9 A   Not necessarily.  It may or it may not be.  There are  10 situations where there are -- they may be a sub-chief  11 and they may not be.  12 Q   Well, let me put it this way, that the code on Exhibit  13 102 suggests that Baskyelaxhaa is associate with  14 Niist.  15 A   Yes.  Yes, which is true.  16 Q   All right.  But when we come to the map of 1987, the  17 name Niist is dropped and Baskyelaxhaa is shown as  18 being the claimant of that territory.  19 A  Well, as I have mentioned, I was reviewing the  20 internal territories at that time.  I had a lot of  21 work to do, and was working that out.  I don't know at  22 what point I worked on that area.  It may have been  23 later.  But certainly map 102 was a draft and any  24 other internal territories were drafts until such time  25 as they have been reviewed very intensively.  26 Q   Now, is map 9A in the same category?  27 A   No.  28 Q   And map 9A we are back to Niist, or Niist is now  29 identified as the claimants of that territory, and the  30 boundaries have changed?  31 A  Well, the boundaries are based on the affidavits of  32 the hereditary chiefs.  33 Q   Well, map 9A is consistent with Mr. Walter  34 Blackwater's territorial affidavit?  35 A   Yes.  36 Q   So Mr. Blackwater between 1983 and the time he swore  37 his affidavit came to the conclusion that Baskyelaxhaa  38 didn't own that territory?  39 A   Yes.  We did a lot of work, sat down and really sorted  40 out just where the different people went in that area,  41 and as we went over the affidavits that's what was  42 established.  43 Q   I would like you to look at his affidavit for a  44 minute, please, under tab 7, paragraph 14 -- or  45 actually I should ask you to start at page 4,  46 paragraph 10.  The -- item B, paragraphs 10 to 16  47 inclusive is -- deals with the Canyon Lake territory. 8634  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 A Yes.  2 Q And Mr. Blackwater states in that affidavit in  3 paragraph 11 that he was instructed about that  4 territory and its boundary by Jack Tait.  Mr. Tait  5 died in 1922?  6 A I don't know.  7 Q Mr. Thomas Sampson --  8 A I don't think so.  9 Q All right.  10 A Jack Tait?  11 Q Yes.  12 A No, I don't think he died in 1922.  13 Q He was dead before 1983, though, wasn't he?  14 A Yes.  And I think he was still alive in the early  15 fifties.  I remember Jack Tait.  But I think he was  16 still alive in the fifties, maybe into the mid or late  17 fifties.  18 Q The mid or late fifties?  19 A Well, it could be, yes, because I remember the name.  20 I remember the person.  21 Q And -- well, there have been more than one Jack Tait,  22 hasn't there?  23 A I don't think so.  24 Q All right.  Well, then, your recollection is that he  25 died some time in the mid-fifties, but in any event he  26 was dead well before 1983?  27 A Yes.  28 Q Thomas Sampson, when did he die?  2 9 A I don't know.  30 Q Well, he wasn't alive in 1983, was he?  31 A No.  32 Q And Mary Blackwater, Mr. Blackwater's mother, died in  33 1962?  34 A No.  No.  35 Q Well, isn't that what he stated in his evidence?  36 A I don't think so.  Died, I think, in 1974 or '75.  37 Q Well, are we talking about his mother or his wife?  38 A Walter Blackwater's mother?  39 Q Which is -- is Mary Blackwater his wife?  40 A Mary Blackwater is Walter Blackwater's mother.  41 Q Well -- and you say she lived until 1974?  42 A Yes.  I was at her funeral.  43 Q All right.  1974.  Mr. Blackwater's change of view  44 from the ownership of Baskyelaxhaa to Niist could not  45 have come from any one of the three people who were --  46 who were his informants with respect to the territory,  47 could it? 8635  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 A  Well, I think that it was just a matter of sitting  2 down much more intensely with Walter and going over it  3 and him thinking more about it.  I think that's all it  4 amounts to.  5 Q   Well, he states in his affidavit that his information  6 comes from three people, Jack Tait, Mary Blackwater  7 and Thomas Sampson, is that correct?  8 A   Yes.  9 Q   And in 1983 he agreed with you that Canyon Lake  10 territory was owned by Baskyelaxhaa?  11 A  Well, that's what he said, yes.  12 Q   Yes.  And he agreed with that, presumably, because  13 that was the information he had at that time?  14 A   I don't think so.  I think that if we had done a very  15 intensive interview, and I had had more landmarks and  16 had been able to pursue it to the degree that I  17 eventually did, that he would have been able to sort  18 all that out.  19 Q   Well, that again is speculation on your part.  20 A   No, it's not, because when I did sit down with him and  21 do it, he was able to do that.  22 Q   Yes.  23 A  And he -- you know, he mentioned those things.  24 Q   Yes.  But my question to you, Mr. Sterritt, is that in  25 1983, given the sources of information which he has  26 identified in his affidavit, he believed, based on the  27 only information that he's sworn, that the ownership  28 of the territory by Baskyelaxhaa was consistent with  29 what information had been given him by Jack Tait, Mary  30 Blackwater and Thomas Sampson?  31 A   I think you mixed up two things there.  32 Q   All right.  Well, you are probably quite right.  The  33 basis for his agreement in 1983 that Baskyelaxhaa was  34 the claimant of the Canyon Lake territory could only  35 have come from Jack Tait, Thomas Sampson and Mary  36 Blackwater?  37 A   I think that if I had had the -- been able to pursue  38 it in depth in 1983, spent a lot more time with Walter  39 on that day and pursued it in depth, he would have  40 sorted out those relationships in his own mind, and  41 it's what he eventually did.  42 Q   Well, Mr. Sterritt, that is not responsive to my  43 question.  Let me put it another way.  In 1983 would  44 you agree with me that Mr. Blackwater's only source of  45 information about the Canyon Lake territory was from  46 what he had heard from Jack Tait, Thomas Sampson and  47 Mary Blackwater? 8636  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 A   I don't know.  Could have been from other people as  2 well, but certainly they were the main people.  3 Q   And in 1987 he identified them as his sources of  4 information, didn't he?  5 A   Yes.  6 Q   All right.  And would you not agree with me, then,  7 that in 1983, when he agreed with you that the Canyon  8 Lake territory belonged to Baskyelaxhaa, he believed  9 he was being consistent with the sources of his  10 information?  11 A  Well, I don't know what he believed, but Walter  12 certainly knew that Thomas Sampson, Gibeumget and  13 others and Niist, Thomas Sampson, Charles Sampson,  14 many people owned the Canyon Lake area.  He also knew  15 that Baskyelaxhaa was in that area and travelled  16 across that area.  I don't know to what extent, when  17 he agreed with me, what he meant by that, but  18 certainly he knows and knew that Gibeumget under Niist  19 was responsible for that area.  20 Q   You mentioned a couple of names here.  Charles  21 Sampson.  Do you know when he died?  22 A   I think that Charles Sampson died in the early 1960's.  23 Early or mid sixties.  24 Q   He was never an informant of yours?  25 A   I spent a lot of time with Charles when I was young.  26 He lived with my dad and he only spoke Gitksan.  He  27 never spoke any English whatsoever.  And I was around  28 Charles Sampson for years, from 1940 to -- 'til I went  29 away to Vancouver in late fifties.  I knew Charles  30 quite well.  31 Q   He wasn't an informant of yours for the purposes of  32 establishing boundaries?  33 A   No.  No.  34 Q   And did I ask you -- I asked you about Thomas Sampson,  35 and you thought he was dead in the mid sixties, was  36 it?  37 A   No, we are talking about Jack Tait there.  But Thomas  38 Sampson, he also was with my dad a lot, and I was  39 around him for a long time as well, but I can't  40 remember when Thomas passed away.  41 Q   It was before you returned to Hazelton in 1973?  42 A   I'm not sure about that.  43 Q   He was not an informant of yours for the purposes of  44 establishing boundaries?  45 A   No, he wasn't.  46 Q   Mary Blackwater.  I see I now have a note here that  47 she died in 1974.  That coincides with your 8637  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 recollection?  2 A   Yes.  3 Q   And she was not an informant of yours, was she?  4 A   No.  5 Q   Charles Stevens, I don't think you mentioned his name,  6 but I have his name down here.  7 A   Charles Stevens, he -- I think he died in the late  8 seventies.  Pardon me, the late sixties.  9 Q   And he wasn't an informant of yours?  10 A   No.  11 Q   And I think Sam Hope died around 1982?  12 A   Yes, that sounds about right.  13 Q   Was he an informant of yours?  14 A   I talked to Sam a little bit, but he only spoke  15 Gitksan as well, and he was not well.  He was quite  16 sick.  So no, he wasn't.  17 Q   And that would be a time when you didn't understand  18 Gitksan very well?  19 A   It was probably around 1979 or 1980 that I talked to  20 him.  21 Q   And Jimmy Blackwater, Mr. Blackwater's father died in  22 1966?  2 3 A   I don't know.  24 Q   Well, I think I was -- yes.  Mr. Blackwater stated in  25 his examination that his father died in 1966.  You  26 would accept that, would you?  27 A   Yes.  28 Q   So he wouldn't be an informant of yours?  2 9 A   No.  30 Q   And Moses Stevens, he died about 1971?  31 A   I don't know.  32 Q   Well, he wasn't an informant of yours, was he?  33 A   No.  34 Q   All right.  Now, Mr. Blackwater went on in his  35 interview with you in 1983 to suggest that Sallysout  36 Creek belonged to Baskyelaxhaa.  I refer to page 46.  37 THE COURT:  That's tab?  38 MR. GOLDIE:  Tab 9.  3 9    THE COURT:  9.  40 MR. GOLDIE:  41 Q   And I read to you the reference to the small lake in  42 the Canyon Lake area, and I want to go on from there.  43 You asked him this:  44  45 "NJS:  He would eh?  Does he own up on top of  46 the mountains there?  47 WB:  Yeah they owns the whole mountain too. 363?  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 NJS.  And...uh...and then he comes down  2 this..the Nass eh...  3 WB:  And then they come down the Nass yeah.  4 NJS:  To...uh Sallysout Creek?  5 WB:  Yeah, right.  6 NJS:  Both sides of that or?  7 WB:  Both sides, yeah."  8  9 Now, he would -- he was mistaken in attributing  10 Sallysout Creek to Baskyelaxhaa?  11 A   It's a boundary.  It's not both sides of it.  12 Q   Well, isn't Sallysout Creek in Wii'goob'l's property?  13 A   It's on -- in part of it.  Sallysout Creek goes kind  14 of in a southerly direction and then swings kind of  15 west, and that's the part that is Wii'goob'l.  16 Q   Yes.  And it's just before it comes into the Nass.  Is  17 that what you are referring to there, or is that what  18 you understood him to refer to?  19 A   Just as it enters the Nass, yes.  2 0 Q   When you put this question to him, they come down to  21 the Nass and you say to Sallysout Creek, he understood  22 what you were talking about, didn't he?  Would you  23 like to hear the tape played on that?  24 A   No, that's all right.  25 THE COURT:  Perhaps, Mr. Goldie, this would be a convenient time  2 6 to take the adjournment.  27 MR. GOLDIE:  Thank you, My Lord.  28 THE REGISTRAR:  Order in court.  29  30 I HEREBY CERTIFY THE FOREGOING TO  31 BE A TRUE AND ACCURATE TRANSCRIPT  32 OF THE PROCEEDINGS HEREIN TO THE  33 BEST OF MY SKILL AND ABILITY.  34  35    3 6 LORI OXLEY  37 OFFICIAL REPORTER  38 UNITED REPORTING SERVICE LTD.  39  40  41  42  43  44  45  46  4 7 (PROCEEDINGS RESUMED AT 11:30) 3639  N.J. 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 REGISTRAR:  Order in court.  THE COURT:  Mr. Goldie.  MR. GOLDIE:  Q   Mr. Sterritt, do you recall Mr. Blackwater telling you  in the course of his interview that he hadn't been on  his father's territory for 20 years?  A   He may have.  Do you have a page there?  Q   If you would refer to page 5 of the transcript under  tab 9.  About half-way down the page you have been  questioning him about some features on the -- what I  take to be the east side of the Nass, and you make  reference to a feature called Xsi Luu Am Maldit, X-S-I  L-U-U A-M M-A-L-D-I-T.  What is that, please, Mr.  Sterritt?  A   That's a creek.  Q   A creek?  A   On the map it's Slowmaldo Creek, S-1-o-w-m-a-l-d-o.  Q   Right.  And Mr. Blackwater repeats that.  And you say:  "NJS:   That creek...  WB:    That's my dad's trapline yeah.  I know that  place, eh.  NJS:   Okay.  WB:    I really know that well.  That goes all the  way up to... uh...uh... Groundhog Mountain.  NJS:   Right.  What's that mountain.  You know,  when you're going up...uh...Xsi Luu Am  Maldit there's a mountain on the  left-hand side.  See this one here?"  Of course, when say "See this one here", you're  pointing to the map, aren't you?  Probably.  Well, were you pointing out the window?  I'm probably pointing to a mountain.  On the map?  Yes.  And Mr. Blackwater said:  "WB:    Uh.  NJS:   Do you know the name of that?  WB:    Uh...uh...(unintelligible) I've forgotten  that.  I know the mountain before but...  I've never even go there for the last 20  years now like...  NJS:   That is right, eh?  A  Q  A  Q  A  Q 8640  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 WB:    Yeah.  I...(unintelligibel)... I know them  2 all...and I forgot the name of them now."  3  4 So he had not been on this territory or his father's  5 territory for some 20 years?  6 A   Yes.  7 Q   And he had forgotten the name of the owner of  8 Groundhog Mountain?  9 A   I don't know whether he had or not.  10 Q   Well, if you turn over the page you said:  11  12 "NJS:   Umm hmm.  13 WB ...I've forgotten the name of them now....  14 There's another know...  15 Groundhog Mountain.  16 NJS:   Here's Groundhog right here."  17  18 And again you're referring to the map?  19 A   Yes.  2 0 Q   And then he said:  21  22 "WB:    Yeah.  Groundhog..there's another mountain  23 on this side..on this side yeah.  24 NJS:   Umm hmm.  25 WB:    And..uh..the name of Miin Anhl Gii..  2 6 NJS:   Oh yeah...Miin Anhl...Miin Anhl...  27 WB:    You know what I am talking about, eh?  28 NJS:   Yeah.  I know which one, yeah.  2 9 WB:    That's Miin anhl Gii there.  And there's  30 un...Groundhog...uh... Groundhog Mountain.  31 NJS:   There's another name for that?  32 WB:    Yes, another name for  33 that...uh...(unitelligible)...almost the  34 same Skanism Gwiik.  35 NJS:   Skanism Gwiik?  36 WB:    Yeah.  That's the Groundhog Mountain.  37 NJS:   Is that the whole big mountain area?  38 WB:    That's the whole big mountain there.  And  39 there's...uh... the trail goes over there.  40 NJS:   Yeah.  41 WB ...that's Skanis Gwiik.  42 NJS:   O.K.  4 3 WB:    And...uh...uh...when you go...when you go  44 over that mountain and there's...uh...  45 I've forgotten who's the owner of that  46 place there... there's a trail goes over  47 that way but I don't know..." 8641  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1  2 Now, the owner of that place, meaning the territory,  3 is Geel?  4 A  Well, I'm not sure what he's referring to there.  5 Q   Well, I'm asking you today if the claimant of that  6 territory that he's speaking about, namely the  7 Groundhog area, is Geel?  8 A  Well, the territory at -- yes, is Geel up in that  9 area, right.  10 Q   Yes.  And of course he describes that territory in  11 detail in his affidavit?  12 A   Yes.  And he refers to page 7 there it's Tsaphl  13 Hasiiyeeks.  14 Q   I beg your pardon?  15 A   Tsaphl — T-S-A-P-H-L space H-A-S-I-I-Y-E-E-K-S.  16 Q   You mean in his affidavit?  17 A   No, right here.  18 Q   What page are you on, please?  19 A   Page 7.  20 Q   Yes?  21 A  Which he also referred to in his affidavit, I think.  22 Q   Yes.  The question I put to you was he had forgotten  23 the name of the person who claimed that territory, and  24 I take it you don't disagree with me?  25 A   He may have forgotten at the time, yes.  26 Q   Yes.  Now, would it be correct, Mr. Sterritt, to say  27 that in 1983 in the course of this interview you were  28 endeavouring to construct -- reconstruct the past?  29 A   No.  I don't think it would be correct to say that.  I  30 was trying to identify place names.  I had wanted to  31 see Walter for awhile, and as he lived in Rupert I  32 hadn't been able to see him.  I don't know whether I  33 would say that.  34 Q   You say he lived in Rupert and you wanted to see him.  35 Was this the first time you had seen him?  36 A   No.  I had seen him at his mother's funeral.  37 Q   That was when?  38 A   '74.  I think I had seen him I think at Chris Harris'  39 funeral.  40 Q   Yes?  41 A   Chris Harris' funeral.  And I might have seen him from  42 time to time, but I hadn't -- I don't recall how  43 often, but I wanted to have an opportunity to sit down  44 with him.  45 Q   All right.  The reason I put that question to you was  46 that when I read the transcript it seems to me that  47 you've done a number of things which were -- which 8642  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 were intended to trigger his memory, and you indeed  2 did want to trigger his memory, did you not?  3 A   Not necessarily in that sense, no, I don't think so.  4 I -- I wanted to know what he knew and if I had some  5 information I may have indicated it, but I also wanted  6 an opportunity to go out onto the territory with him,  7 and that simply wasn't possible at the time, but  8 eventually we did scrape up the money to be able to go  9 out and do it.  10 Q   Well, you did suggest matters of historical importance  11 to him, such as the boundary between Luus and  12 Dawamuxw, did you not?  13 A   I'm not sure where you're referring to.  14 Q   Well, perhaps if we could have the tape at page 48 of  15 the transcript, I'm going to refer to the transcript  16 between pages 48 and 50, my Lord.  And I want to start  17 somewhere around where Mr. Blackwater says "They  18 covered everything right from there":  19  20 "WB:    They covered everything right from there.  21 NJS: then...Dawamuxw  22 goes...oh, O.K. comes all the way up to  23 uh...what's that place? Let's see, how can  24 I figure this out?  What's the name of the  25 place that uh with the pass there?  2 6                  WB:    Hm, which one?  27 NJS:   Right at 5th Cabin where Dawamuxw the  28 boundary ends between Wii Minosik and  2 9 Dawamuxw?  30 WB:    Wii Skaiyip.  31 NJS:   Yeah, Wii Skaiyip.  32 WB:    Yeah.  33 NJS:   O.K.  When you cross south of there...  34 WB:    Yeah.  35 NJS:   ...where does Dawamuxw go?  36 WB:    They goes right across there... right... I  37 think it's right across the  38 mountain...right to they...they on top of  39 the mountain because uh...the other side of  4 0 the mountain they...they...Tom  41 Sampson's... they covered the wole works,  42 eh.  4 3 NJS:   O.K.  Now who owns...  44 WB:    They...  45 NJS:   ...that, like that uh that other uh Xsi Lax  46 Uu...Xsi Lax Uu?  47 WB:    Xsi Lax Uu.  That's... 8643  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 NJS: Who owns that?  2 WB: ...that's uh Dawamuxw uh covered that one.  3 NJS: All of it?  4 WB: Yeah, the whole works.  5 NJS: Right to the head of Xsi Lax Uu.  6 WB: Yeah... that's,no that's not  7 right... that's uh Xsi Lax Uu...that's uh  8 Luus...  9 NJS: O.K.  10 WB: Luus is cover that.  11 NJS: So where does  12 um...Dawamux...where do they come across?  13 WB: They...1...1 didn't even really know where  14 did they came across but I knows uh I don't  15 know how did this one work because there's  16 uh two, two families in the little  17 place there...  18 NJS: Oh, is that right?  19 WB: Yeah.  I don't know how did that work  20 because there's uh Dawamuxw there they  21 cover part of it and Luus is cover...  22 NJS: Is that right?  23 WB: ...part of it.  I don't know did that work.  24 NJS: You don't know how far up, eh?  25 WB: No, I didn't know. ..not... not exactly.  26 NJS: But if Dawamux goes in behind 4th Cabin...  27 WB: Yeah...  28 NJS: ...he goes along about Tsinihl Denden, eh?  29 WB: Yeah goes along about Tsinihl Denden yeah,  30 that's uh...  31 NJS: And...  32 WB: ...covered all of...covered to...right  33 on top of mountain or something like...  34 NJS: Yeah.  35 WB: ...this something like that anyway...  36 NJS: Yeah and then he comes down somewhere.  37 WB: Yeah...comes down to the...the...  38 NJS: How about that uh you know that uh Xsisga  39 Mal'  40 WB: Xsis - Xsisga Mal'dit.  41 NJS: Xsisga Mal'dit yeah.  42 WB: That's uh Dawamux uh I know  43 (unintelligible)...  44 NJS: He owns that?  45 WB: There's the two of them...there's two, one  46 small Xsisga Mal'dit...  47 NJS: Yeah. 8644  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 WB: ...and one big one.  2 NJS:   Yeah.  3 WB: (Unintelligible) well they covered...all  4 covered that and...  5 NJS:   Dawamuxw covered that. . .  6 WB:    Yeah did...Dawamuxw goes...1 know...1  7 know...(unintelligible)  8 NJS:   Okay.  9 WB:    But I know two of small and one  10 big one . . .  11 NJS:   O.K.  12 WB:    Dawamuxw covered uh these two yeah.  13 NJS:   O.K. and then um...I'm wondering which way  14 he comes down...where him and Luus have the  15 boundary. . .hmm. . .it's. . .must come down  16 through (unintelligibel) Xsisga Mal'dit,  17 eh?  18 WB:    Xsisga Mal'dit yeah.  They came down  19 through Xsiga Mal'dit is... uh running into  20 Slamgeesh."  21  22 Q   Were you not seeking to revive Mr. Blackwater's memory  23 both of the boundary of Dawamuxw and the boundary  2 4 between Dawamuxw and Luus?  25 A   I think I was going back over the information and  26 trying to see where the boundary went, yes.  27 Q   And indeed, when you say, and I'm now referring to  28 page 50, my Lord, where you say "It must come down  29 here" or must -- I didn't -- I'm not quoting that  30 accurately.  You say:  31  32 "O.K. and then um...I'm wondering which way he  33 comes down...where him and Luus have the  34's...must come down through  35 (unintelligible) Xsisga Mal'dit, eh?"  36  37 And Mr. Blackwater agrees with you and says that  38 that's running into the Slamgeesh.  You were at that  39 point actually working over the map together, were you  40 not?  41 A   Yes.  I think so.  I was certainly working with it.  42 Q   Well —  43 A   But it's one of the weaknesses of working -- well, the  44 preferred way was to get out in the field with Walter  45 Blackwater, and which I eventually did.  46 Q   Yeah.  But my point is that when you say to him or  47 when you comment "Must come down through", you were 8645  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 pointing out a line that you suggest is the boundary  2 between Dawamuxw and Luus?  3 A   I don't know whether I was or not.  4 Q   Well, let's look at the map that I suggest you were  5 working with.  I wonder if the witness might see  6 Exhibit 725.  Now first, would you agree that these  7 are the sheets that -- this is one of the two sheets  8 that you had before you when you were interviewing Mr.  9 Walter Blackwater?  10 A   I'm not sure if I had this or whether I had a  11 composite with nothing on it other than the map of the  12 features.  I don't recall what I had with me.  13 MR. GOLDIE:  Well, I'm going to suggest to you that these are  14 the very maps and that you were making -- writing with  15 respect to this.  Now, the area that is drawn in  16 purple, isn't that the area that you satisfied  17 yourself was the territory of Dawamuxw in the course  18 of your discussions with Mr. -- with Mr. Blackwater?  19 MR. RUSH:  Well, just excuse me.  There were two questions  20 there; one is about the map and the writing and one is  21 with respect to the purple which you have identified  22 to.  And is it the latter question which you want?  23 MR. GOLDIE:  24 Q   Well, I'm endeavouring to refresh his memory by  25 referring him to a particular part of Exhibit 725, and  26 the part that I'm referring him to is outlined in  27 purple.  Have you got that?  28 A   Yes, I have.  But what I would do is go back -- I  2 9 don't know whether I had the white binder with me or  30 not.  If I did some work I would go back to the white  31 binder and then work on the white binder maps, but I  32 didn't necessarily have it with me at the time and I  33 don't recall having it with me.  34 Q   All right.  But I suggest to you that as a result of  35 your interview with Mr. Blackwater you coloured in  36 purple the territory of Dawamuxw.  37 A   Yes, yes.  38 Q   And indeed, you have identified -- and that territory  39 extends westward on to the next map?  40 A   Probably, yep.  41 Q   And indeed, you have identified by a marginal note on  42 the southern boundary it as Dawamuxw, is that correct?  43 A   Dawamuxw, yes.  44 Q   That's your handwriting?  45 A   Yes, it is.  46 Q   Now, in the upper left-hand -- on the left-hand margin  47 you have a note "December 15 1982, at Sam Hope Feast. 8646  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1  i  2  3  4  5  A  6  Q  7  A  8  Q  9  A  10  Q  11  12  13  A  14  Q  15  A  16  17  18  Q  19  20  A  21  Q  22  i  23  24  25  A  26  27  MR.  GOLDIE  28  THE  COURT:  29  MR.  GOLDIE  30  THE  COURT:  31  MR.  GOLDIE  32  Q  33  34  35  36  37  38  A  39  Q  40  41  A  42  Q  43  44  45  46  A  47  Q  Walter Blackwater says Dawamuxw comes up creek  to main" -- and I can't make out the next work, and  "Gwinin Nitxw on the other side."  Is that your  printing?  Yes, it is.  And is the little sketch above it --  That's mine.  Your printing?  That's mine, yes.  Yes.  In 1982 then Mr. — Mr. Blackwater was  consistent in his recollection with the information he  gave you in May of 1983?  Yes.  Now, I want to --  And at the same time I think that he is referring to  the -- the area because of Moses Stevens being married  to a Wolf.  Well, he knew Moses Stevens was married to a Wolf at  that time, I suppose?  Yes.  And the informants which he now relies upon were all  dead?  By "Now relies", I mean in his affidavit with  respect to the territory which is identified as  Dawamuxw's territory on Exhibit 725?  Yes.  I believe they -- yes.  They're -- the ones  named there are all dead.  :  Yes.  Now, I want to show you the companion sheet.  What exhibit number was the first one, Mr. Goldie?  :  725, my Lord.  Thank you.  What number is it?  I'm now referring to the companion sheet of 726.  The  sheets are identified -- 725 is the National  Topographic sheet, McConnell Creek, and 726 is  identified as Bowser Lake.  And there's a description  of the territory of Dawamuxw on the right-hand side of  Exhibit 726?  Yes.  And in fact, it is identified with a word written in  there "Dawamuxw".  Is that your handwriting?  Yes, it is .  Now, the boundary that runs, roughly speaking, north  and south, isn't that the boundary that you and he  were working over in the exchange that we listened to  a few minutes ago?  It may have been.  Well, the boundary between -- 8647  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 A  Well, it would be my understanding of what he was  2 saying, but it's not necessarily what he was really  3 telling me.  4 THE COURT:  Where's the pass?  5 A   It's on the other map.  6 THE COURT:  Oh, all right.  Sorry, don't bother.  7 MR. GOLDIE:  8 Q   The -- well, just sticking with 726 for a minute, the  9 territory to the left of that purple line running  10 roughly north and south is later attributed to Luus,  11 is it not?  12 A   Yes.  13 Q   In part?  14 A   To the area on the creek that goes down into the Nass.  15 Q   Yes.  16 A  Which is this one right here.  17 Q   And then over directly west to the north-south line is  18 the Canyon Creek area, is it not?  19 A   Yes.  And he refers to Tom Sampson being in there on  20 page, I think, 48 or 49.  21 Q   And did he not in the course of the interview --  22 A   Tom Sampson, page 48 in the middle of the page.  23 Q   Yes?  24 A   That's what he's referring to.  25 Q   Yes.  Well, Tom Sampson's name is found on this map  26 running up Kotsinta Creek?  27 A   Yes, Xsi Luu Wit Wiidit, that's X-S-I space L-U-U  28 space W-I-T space  W-I-I-D-I-T.  2 9 Q   Did you put Tom Sampson's name on the map as a result  30 of your discussion with Mr. Blackwater?  31 A   I don't know if it was as a result of that discussion,  32 but that's my printing there.  33 Q   Yes.  Now, going back to the area directly west of the  34 north-south boundary or the west boundary of Dawamuxw,  35 if you go down to the Nass you're going to be  36 following Vile Creek, aren't you?  37 A   Yes.  38 Q   And at the junction of Vile Creek and the Nass there's  39 a printing "Large Camp"?  40 A   Yes.  41 Q   And you were informed of that by Mr. Blackwater?  42 A   Yes.  Not only by him, Abel Brown, I think, has  43 mentioned it to me, possibly Albert Tait, I think  44 Albert Tait mentioned it.  It was a big camp where  45 everybody went to, Arthur Sampson, other people have  46 mentioned it to me as well.  47 Q   Yes, all right.  Now, directly north of the words 8648  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 Large Camp is the word "Luus"?  2 A   Yes.  3 Q   And you wrote that in?  4 A   That's my printing.  5 Q   Yes.  Now, Luus' territory includes the headwaters of  6 Shilalahou or Shilalahou Creek on this map?  7 A   Yes.  8 Q   And that's been later changed?  9 A   Yes.  That's wrong.  10 Q   And then we go directly north and we find Wiininosik,  11 and that's in your handwriting?  12 A   Yes, it is.  That's the area I mentioned yesterday  13 that I extrapolated across the river.  Walter had  14 mentioned an area, and I extrapolated around to the  15 whole area, but that was my doing.  16 Q   Yes, all right.  And then we go north and -- again to  17 the northern boundary of the green-shaded line and we  18 find Groundhog Pass?  19 A   Yes.  20 Q   And beyond that was the territory of the man whose  21 name he couldn't remember, but that's Geel's  22 territory, is it not?  23 A   Yeah.  24 Q   All right.  Now, let's reverse our direction and go  25 south.  I direct you again to "Large Camp"?  26 A   Yes.  27 Q   Go south down that, please, to the junction of  28 Sallysout Creek in the Nass?  29 A   Yes.  Right here.  30 Q   On this map the boundary follows Sallysout Creek for a  31 considerable distance, doesn't it, a boundary, I  32 should put it that way?  33 A   It follows it for a little ways.  34 Q   Well —  35 A   Not for very far.  Sallysout creek turns and goes to  36 the west, not very far up.  It goes on up into the  37 mountains.  38 Q   And the -- and the -- that territory is Wii Goob'1  39 shaded green?  40 A   Yes.  41 Q   And the -- it doesn't -- doesn't that depiction follow  42 the description that Mr. Blackwater gave you, or does  43 it differ?  44 A  Well, he said it comes down to Sallysout Creek and  45 then it goes on up, but this depicts it would be  46 approximate in terms of what he's telling me, but it  47 would be my interpretation of what he's saying here. 8649  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 Q   Yes.  I appreciate that.  But I now go back and  2 suggest to you that these maps with the names on it,  3 both in English and otherwise, were the very maps that  4 you had in front of you when you were discussing this  5 with him?  6 A   No.  I don't remember that.  7 Q   Well, what maps did you have?  8 A  Well, I had a map with nothing on it that I used, it  9 was a composite with basically nothing on it that I  10 took around with me, and that may have been the map I  11 had at that time, but I'm not sure.  12 Q   You say a map with nothing on it.  You mean a blank  13 sheet of paper?  14 A   No.  I said a map -- I referred to it earlier, maps  15 like these without anything written on them, the  16 National Topographic series.  17 Q   Oh, yes.  Well, that's the, I think then, the  18 difference between us, is that you may have kept  19 Exhibit 725 and 726 at home and marked it up later  20 with the information that you obtained from Mr.  21 Blackwater, but you were working over a topographic  22 map?  23 A   Oh, yes, yes, I was.  24 Q   The same base maps as Exhibit 725 and 726?  25 A   Yes.  2 6 Q   With him?  27 A   Yes.  2 8 Q   And the two of you were working over this map  29 together, or these maps together?  30 A   I had this map in front of me, yes.  31 Q   And the two of you were working over the maps  32 together?  33 A  We were going over it, but I wouldn't say that Walter  34 necessarily knew where -- could read the map, I  35 wouldn't say that.  36 Q   Yeah.  Well, he was able to follow where the Nass was,  37 he was able to follow where the creeks were, he was  38 able to follow where the mountains were?  39 A   No, no, no.  If I showed him the Nass in a spot he  40 knew that was the Nass.  41  42 A   From there -- for him to relate from this was very  43  44  45 A   No.  I wouldn't say so.  I could then go to another  46 spot and he could relate on that point if we were  47 talking about something specific, but he couldn't  Q  Yes?  A  From there -- for him  difficult.  Q  But he did it?  A  No.  I wouldn't say so 8650  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 necessarily go from there and follow the map around,  2 it didn't mean anything to him.  3 Q   Well, Mr. Sterritt, you say it didn't mean anything to  4 him.  You spent over an hour with Mr. Blackwater going  5 over these maps, and you used the information that he  6 gave you?  7 A   I had a map in front of me, we had some features that  8 he knew in his own mind of the territory that we  9 discussed.  I pointed out where I thought some of  10 those points were on the map, he was able to follow it  11 from there, but he could not -- from that point he  12 could not follow a map.  13 Q   Is your answer to my question influenced by the fact  14 that you were present when Mr. Blackwater said in his  15 cross-examination that he couldn't read a map?  16 A   No.  From the process that I went through we would sit  17 down with a map in front of us and I would ask him to  18 describe an area, and away he would go.  He would be  19 wandering all over that map as though he was walking  20 three miles, and in fact, on the map he had covered as  21 much as 30 or 40 miles.  He might as well have had a  22 blank piece of paper in front of him.  23 Q   You're not suggesting that what we have heard on the  24 tape is incorrectly recorded?  25 A  Well, in what sense are you saying that?  Because I've  26 just explained to you that Walter could not follow --  27 I could point out a spot on a map.  If I had asked him  28 to follow on the map all the way around in a given  29 point he couldn't have done it.  30 Q   All right.  Mr. Sterritt, I'm going to ask you to  31 point out to his Lordship precisely where you were on  32 the map when you said at page 50:  33  34 "O.K. and then um...I'm wondering which way he  35 comes down...where him and Luus have the  36's...must come down through  37 (unintelligible) Xsisga Mal'dit, eh?"  38  39 Now, can you tell his Lordship by reference to Exhibit  40 725 or 726 precisely the area where you're talking  41 about?  42 A   I need that one.  43 THE REGISTRAR: 725.  44 MR. GOLDIE:  45 Q   Yes?  46 A   You see, even in that area I could have been on the  47 wrong side of Xsisga Mal'dit.  I could have been on 8651  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 the south side when in fact he could have been  2 referring to the north side.  3 MR. GOLDIE:  Maybe show -- but you're speculating.  Just tell us  4 where you were.  5 THE COURT:  Just a moment, please.  6 A   Now, the Slamgeesh Lake is right under the -- right  7 there, that's where we landed when we went from Bear  8 Lake over on the over-flight.  That's why I don't  9 think he was working with these maps, because I would  10 have had to follow right through from one to the  11 other, so do you have the other one?  12 MR. GOLDIE:  13 Q   Yes.  14 A   Okay.  Now, this is Shilahou here, Shilahou, this is  15 Xsisga Mal'dit I think down here, and we're coming  16 down -- I think we're talking about coming down  17 through this way right in here.  That in itself  18 doesn't match with this, doesn't match with this,  19 right.  That does not match with that, so we could  20 have been talking about either side of Shilahou there,  21 but in terms of following it, he was following it in  22 his mind, I can't say that he was following it on the  23 map, because he couldn't follow the map.  24 Q   Well, you keep repeating he couldn't follow the map?  25 A   Yeah.  But if you look at that entry, that doesn't  26 show that he's following on the map.  He's saying they  27 come down through Xsisga Mal'dit, he's saying which  28 runs into Slamgeesh.  29 Q   There are many other places where you say "What about  30 here" and so on and so forth.  And in fact, he  31 identifies a place for you, doesn't he, at page 48.  32 You say:  33  34 "Right at 5th Cabin where Dawamuxw the boundary  35 ends between Wii Minosik and Dawamuxw."  36  37 And he provides you with the notation?  38 A   Yes.  Wii Skaiyip.  39 Q   Yes, Martin's Flats.  40 A   That doesn't mean he's looking at the map.  He knows  41 Wii Skaiyip and 5th Cabin, he's not looking at a map  42 necessarily, he's just referring to that.  43 Q   And when you say on page 47, you say:  44  45 "There's a creek just above 4th Cabin, do you know  46 the name of that one...just above's  47 4th Cabin here you go up a little 8652  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 ways half a mile."  2  3 When you say "Here's", you're talking about the map,  4 aren't you?  5 A   I'm pointing at the map, yes.  6 Q   Yes.  And he says:  7  8 "WB:    Um...m...  9 NJS:   ... it'd be a mile...'bout a mile.  10 WB:    Hmm...m...1 forgot of that now...hmm...1  11 forgot the name of that now."  12  13 He doesn't say he can't understand you?  14 A   It doesn't mean he's following on the map.  I pointed  15 to a point right on the map, and he simply says he  16 can't remember the time.  That doesn't mean that he's  17 reading the map.  18 Q   Now, all right, thank you.  Again, I want to be sure  19 that I understand what you were endeavouring to do,  20 and I suggested to you that you were seeking to  21 trigger his recollection of past events and past  22 places?  23 A   No, I'm not.  24 Q   Places that he had not been on for something like 20  25 years?  26 A  At that point I simply sat down to do an interview of  27 place names that -- of areas he had been, whether --  28 Q   Yeah?  29 A   I can't say that I was there to trigger memories, no,  30 I wouldn't say that.  I was simply there to interview  31 him.  32 Q   Well, you referred to him what other informants said,  33 didn't you?  34 A   Yes.  But I don't see what problem that is.  35 Q   Isn't that an aid to his recollection?  36 A   I'm pointing out, yes, what other people have said,  37 but it doesn't mean that I'm there for the purpose of  38 triggering his memory.  I'm -- I was simply there to  39 find out what he knew.  40 Q   Yes.  And another aid to his memory was the one that  41 we've been discussing, the use of maps?  42 A   He -- I had a map there to assist myself and I thought  43 maybe he could read it, but I was wrong about that.  44 Q   Well, you continued to use them throughout the entire  45 interview, didn't you?  46 A   Of course I did.  47 Q   Yes.  And did he not use the map itself to point out 8653  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 to you the directions in which certain features ran?  2 A   I don't think so.  I would have to see what you're  3 referring to, but even if he was it didn't mean he  4 understood what was happening there.  I would have to  5 see what you're referring to.  6 Q   Well, I'm going to refer you to -- first to page 1.  7 And you say -- you start out by saying:  8  9 "Here's Blackwater Lake right here."  10  11 And you point to that feature on the map, right at the  12 outset, isn't that correct?  13 A   Um-hum, yes.  14 Q   And then you point out Groundhog Mountain right here,  15 right?  16 A   Yes.  17 Q   And then Nass River?  18 A   Um-hum.  19 Q   And then you say:  20  21 "This is the Telegraph Trail goes across here."  22  23 In other words, you're orienting the map for him?  24 A   Yes.  25 Q   And then at the bottom of that page you say:  26  27 "One goes out this way to 9th Cabin."  28  29 And he answers affirmatively yes to the 9th cabin.  30 You say:  31  32 "NJS:   9th Cabin's way over here.  33 WB:    And there's another branch, it's uh up that  34 way.  35 NJS:   O.K....  36 WB:    Uh, let's see this one here..."  37  38 And then something:  39  40 "WB:    This is the telegraph over here eh."  41  42 In other words, he's pointing to the map with respect  43 to the location of the Telegraph Trail?  44 A  Well, he's generally located there, yes.  45 Q   Yes, all right.  4 6 A   Um-hum.  47 Q   And then at the bottom of page 32 you're discussing 3654  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 the Blackwater territory, or at least some part of it,  2 and just at the bottom Mr. Blackwater says "On the  3 Blackwater side"?  4 A  What page are you on?  5 Q   Page 32, the bottom, please.  The second interjection  6 from the bottom.  I'll just start there for purpose of  7 convenience.  Well, I'll go up, start -- beginning  8 with your statement:  9  10 "NJS:   O.K. but how far towards 7th Cabin does  11 your Dad go?  12 WB:'s only goes far as that creek.  13 NJS:   Right here?  14 WB:    Yes."  15  16 Now, right here you're pointing to the map, aren't  17 you?  18 A   I would think so, yes.  19 Q And you say:  20  21  22  23  24  25  26  27  28  29 "NJS:  O.K.  And how far on this side like,  30 there's a mountain..."  31  32 And then after an unintelligible comment he says:  33  34 "WB:    There's all along the mountain as far as I  35 know because I don't other side of the  36 mountain ... as far as I know they're ... they  37 cover really quite a bit of area in  38 here like all the way from...  39 NJS:   Angodjust...right here."  40  41 Now, of course that's -- you're again referring to the  42 map?  43 A   Yes.  44 Q   And he says:  45  46 "Yeah.  Angodjus that's... that's the name of the  47 whole mountain and uh it goes this way."  "NJS:  But on this side.  WB:  Yeah.  NJS:  On this. . .  WB:  On the Blackwater  side."  A  Um-hum.  Q  You say: 8655  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1  2 And when says "this way", he's pointing to a direction  3 of the feature on the map, isn't he?  4 A   Not necessarily.  5 Q   Well, how does he indicate this other than by the  6 reference to the map?  7 A  Well, he doesn't -- I don't recall what he was  8 actually doing at the time, but he could be doing a  9 number of things describing to me.  10 Q   Well —  11 A   I don't recall.  12 Q   If you don't recall I'll accept the transcript.  Now,  13 I put it to you that the -- the chiefs are far more  14 conversant with maps than you have suggested.  I  15 believe at one time you suggested that most chiefs  16 cannot read the maps?  17 A   There are some who can read maps, but most of them  18 can't, a lot of them can't.  19 Q   Um-hum.  I want to refer you to a letter that I've  20 placed under tab 9 of the document book -- I'm sorry,  21 not tab 9, tab 12.  You of course would have no  22 personal knowledge of this, but this is a letter from  23 Mr. G.C. Mortimer, Indian Agent, dated January 19th,  24 1931 addressed to Mr. Ditchburn, the Indian  25 Commissioner for British Columbia.  And Mr. Mortimer  26 says:  27  28 "In reply to your letter of December 19th, 1930 I  29 respectfully beg to hand you the following report  30 on the Indian traplines --"  31  32 that there's a -- it says:  33  34 "To had you the following report on the Indian  35 traplines of this Agency."  36  37 And he gives:  Applications made 106, granted 86,  38 pending 20, deceased Indians traplines:  39  40 "These are at present being transferred to  41 relatives.  No trapline, as far as I know, has  42 been refused.  43 Of course in many instances, maps supplied  44 by the Indians are entirely wrong and conflicted  45 with other traplines."  46  47 Was it -- was it not common, to your knowledge, for 8656  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 many trapline owners to have maps of their traplines?  2 A   I have seen drawings that people have made of their  3 territories.  I don't know whether it was common for  4 them to have maps, but I have seen drawings made by  5 some of them, some of which are fairly accurate and  6 some of which aren't necessarily accurate, either to  7 scale or dimension, but contain all the boundaries and  8 the features.  9 MR. GOLDIE:  Yes.  The idea of transferring physical features to  10 a depiction on a piece of paper was quite a common one  11 for people who wished to have something which  12 indicated the nature of their exclusive trapping  13 interests.  14 MR. RUSH:  Well, I object to that.  How can the witness answer  15 that, how can anyone in the room answer that question?  16 MR. GOLDIE:  Well, my question wasn't limited to time, my Lord.  17 My question is unlimited as to time, and perhaps the  18 witness can answer it and perhaps he can't.  19 THE COURT:  The problem is of course that your questions are  20 coloured by this letter, are they not?  21 MR. GOLDIE:  Yes.  22 THE COURT:  Is it really something that is properly to be  23 explained by the witness?  24 MR. GOLDIE:  Well, I also have in mind of course that in 1975 he  25 was directed by the chiefs to --  2 6 THE COURT:  Oh, well, that's —  27 MR. GOLDIE:  To get into the question of traplines.  28 THE COURT:  I'm inclined to — well, I do agree with Mr. Rush's  29 objection.  If you want to start over again about 1975  30 without using a letter of this kind I think we might  31 get along a little better.  32 MR. GOLDIE:  33 Q   Well, the -- from the time of your own personal  34 knowledge, and quite apart from the linen maps which  35 you found in the trapline or in the office of the  36 Indian Agent at Hazelton, the -- it was not uncommon  37 for individual chiefs to have depictions of their  38 trapping territory?  39 A   I have seen some individuals who could do a map very  40 accurately in terms of the features of a given area.  41 I have not seen that widespread amongst the people,  42 but I have also seen that the same people who could do  43 a very accurate drawing of a territory with creeks and  44 so on, quite an accurate drawing, could not  45 necessarily read the topographic map or take that  46 information to a topographic map, although some of  47 them could read a topographic map, but generally the 8657  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 most of them could not read a map, no.  Some did try  2 to draw and to bring that forward, but generally what  3 you're saying I couldn't agree with.  4 Q   But the concept of depicting on a piece of paper  5 physical features on the ground was not unknown?  6 A   Yes.  Because some individuals could do it, but  7 certainly the concept of a territory within the mind  8 of the chief, because they had their mental maps of  9 their territories, and -- and knew the territories,  10 but to take and put that onto a map, some of them  11 could do that, but it wasn't widespread.  12 Q   Well —  13 A   Not to my knowledge.  14 MR. GOLDIE:  All right.  Mr. Mortimer goes on to say:  15  16 "Also many disputes arise between Indians  17 themselves regarding the encroachment of other  18 Indians on their Hunting Grounds, most of which  19 are amicably settled in this Office."  20  21 You wouldn't dispute that, would you?  22 MR. RUSH:  Well, I object to that.  He's asking the witness the  23 very -- he's asking the witness to put yourself back  24 there with Mr. Mortimer and to make a judgment about  25 what Mr. Mortimer said.  Now, that's not within the  26 personal knowledge of Mr. Sterritt.  27 MR. GOLDIE:  No, I agree.  28 MR. RUSH:  That somehow he can go back and --  29 MR. GOLDIE:  I agree with that, he's not within his personal  30 knowledge.  My Lord, I would like to ask that that  31 letter be marked as an exhibit, that the archival  32 certificate is on the next page.  33 THE COURT:  Mr. Rush?  34 MR. RUSH:  Well, the exhibit doesn't speak for any -- for the  35 truth of any of the contents in the letter.  What it  36 does, as my friend is saying, to have it marked  37 without the necessity of -- well, no.  He's a  38 plaintiff, he didn't have to do that, I don't object.  39 THE COURT:  All right.  40 THE REGISTRAR: Exhibit 746, my Lord.  41  42 EXHIBIT 746 - Tab 12 - Letter dated January 19,  43 1931 from G.C. Mortimer to Mr. Ditchburn  44  45 MR. GOLDIE:  There are certain presumptions with respect to the  46 truth of the matter stated, which I will rely upon at  47 a later time. 365?  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 THE COURT:  Thank you.  2 MR. RUSH:  Well, that was a matter that we were going to argue  3 at some point in the future when we all agreed to it.  4 THE COURT:  You know how much I'm looking forward to that  5 argument.  6 MR. GOLDIE:  I wanted to make it clear I didn't accept my  7 friend's statement.  8 THE COURT:  Okay.  9 MR. GOLDIE:  10 Q   There were of course a number of references to  11 trapping and traplines in Mr. Blackwater's evidence?  12 A   Yes.  13 Q   And so far as I can tell, you either treated some of  14 these as referring to territory or ignored the  15 existence of trapping rights in the delineation of  16 territorial borders?  17 A  Well, you've got two questions there.  18 Q   That's correct.  19 A   Can you break that down?  20 Q   You can take your choice.  21 A  Well, one question at a time there, please?  22 Q   It is an either/or.  You either used some of these  23 references to trapping as an indication of territorial  24 boundaries, didn't you?  25 A   No.  On that I found that sometimes individuals when  26 referring to a territory talked about the territory as  27 a trapline and vice versa, and I made no judgment on  2 8 that at the time.  29 Q   Well, I'm suggesting you did, the judgment as depicted  30 on the Exhibit 725 and 726?  31 A   No.  At the time I made no judgment as to whether he  32 was talking about a trapline or a traditional  33 territory.  34 Q   Well, certainly you rejected his evidence about Tom  35 Sampson's trapping rights when you came to draw the  36 boundary of his father's territory?  37 A   I don't follow how you got there.  38 Q   Well, let me take you to page 35 of the transcript.  39 About half-way down or a little better than half-way  4 0 down you say:  41  42 "NJS:   O.K.  And then in 7th Cabin area is Alfred  43 Shanoss eh?  44 WB:    Alfred Shanoss yeah."  45  46 Now, in that -- when you stated "In the 7th Cabin area  47 is Alfred Shanoss", you were referring, were you not, 8659  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 to traplines?  2 A   Not necessarily, no.  3 Q   Well, had he not been referring to traplines?  4 A  Well, he might have been, but he could have been using  5 the term interchangably as territory.  6 Q   Well, if you go back a page to 34, Mr. Blackwater  7 states:  8  9 "WB:    And then uh...uh... Peter Shanoss' trapline  10 and uh Albert Shanoss' trapline... they...  11 they're all -- all around 7th Cabin.  12 NJS:   Oh yeah."  13  14 Do you have what I'm referring to?  15 A   Yes.  I'm on page 34.  16 Q   Yes.  And he says:  17  18 "That's all...they all...they all these brothers  19 have traplines there...but uh... I never did go...  20 go over there maybe just one, two, three times I  21 go over there that's all."  22  23 I suggest to you that on page 35, when you say "O.K.  24 And then in 7th cabin area is Alfred Shanoss", you're  25 suggesting to him that there was some territorial  26 rights associated with the traplines?  27 A   I need some water, please.  The area which includes  28 all of that area is the territory of Niist.  29 Q   Yes?  30 A  And Peter Shanoss, Alfred Shanoss are all within the  31 territory of Niist.  I think they may have had  32 traplines in that area, but they're within the  33 traditional territory of Niist.  34 Q   All right.  But when you come to Thomas Sampson, so  35 far as I'm aware, you attribute no territorial rights  36 to that, and I go over to page 36, and there's -- I  37 pick up the discussion about half-way down the page,  38 there's a reference earlier to the 8th Cabin, and Mr.  39 Blackwater says:  40  41 "WB:    And there's no trees on it...just a...just  42 a bunch of beaver dams...  43 NJS:   That's uh...that's uh Charlie... Charlie  44 Samps ... Charlie Sampson's covered that  45 area.  46 WB:    It's around uh 8th Cabin...8th Cabin.  47 NJS:   Hmm. 8660  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 WB:    That's uh Charlie Sampson's property.  2 NJS:   O.K.  3 WB:    And uh...and all the way...that's a big  4 area for this one Charlie Sampson's... this  5 a...way the goes to Nass over here.  6 NJS:'s right here, and the Nass comes  7 down or it the...not the Nass, Bell-Irving  8 River...  9 WB:    This one here they go...they had it covered  10 up...there's a whole mountain there they  11 covered the whole works and that whole  12 creek goes down there they covered...and  13 goes right into the...the Nass River and  14 all the way down to the Nass River they...  15 they meet uh Tom Sampson's uh trapline into  16 what the...uh... what did they call that  17 lake now...the...the 4th Cabin...the 4th  18 Cabin is...this is almost the same over  19 here isn't it?"  20  21 And so forth.  And you identify where the 4th Cabin is  22 here.  He says:  23  24 "WB:    Yeah.  It's a creek runs just below this  25 (unintelligible) not too far about two or  26 three miles away.  27 NJS:   Below?  28 WB:    Yeah.  It's not on here but I see  29 4th cabin right here."  30  31 Incidentally, if I may stop there, when you say "I see  32 4th Cabin right here", you were obviously referring to  33 a map with that feature identified on it, weren't you?  34 A   It's on -- it's on a map, yes.  35 Q   And he says:  36  37 "WB:    Yeah.  And there's a creek runs into it...  38 and there's a lake.  39 NJS:   Tsinihl Denden, eh.  40 WB:    Tsinihl Denden, yeah.  That's Tom's...Tom  41 Sampson's trapline."  42  43 Now, Tsinihl Denden is the Canyon Lake area, isn't it?  44 A   Yes.  What he's done is gone from well north of 9th or  45 8th Cabin all the way down Kotsinta Creek,  46 K-o-t-s-i-n-t-a, Creek and across Canyon Lake and over  47 to the Skeena.  I don't know how many miles he's 8661  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 covered there.  2 Q   He doesn't go to the Skeena, does he?  3 A   4th Cabin is at the Skeena.  4 Q   He just goes to the Canyon Lake?  5 A   But he says -- yes.  But we end up at 4th Cabin, and  6 that's on the Skeena.  7 Q   All right.  And he says that Tom Sampson's trapline he  8 has rights in the Canyon Lake area which is claimed by  9 Niist or Baskyelaxha, depending on what time you're  10 talking about?  11 A   That's right.  Niist is in that area.  12 Q   Yes.  And Tom Sampson is not in the same clan as  13 Niist, is he?  14 A   Yes, he is.  15 Q   I thought Tom Sampson was Wolf?  16 A   Niist is Wolf.  17 Q   Are you -- Lax Gibuu?  18 A   Yes.  19 Q   But not in the same house?  20 A   Yes.  21 Q   Are you saying that Tom Sampson is in the House of  22 Niist?  23 A   To my knowledge -- to the best of my knowledge, Tom  24 Sampson is in the House of Niist.  25 MR. GOLDIE:  Well, I will have to consult the genealogy again.  26 I didn't think that was correct.  27 THE COURT:  Excuse me, Mr. Goldie, are those cabins shown on  28 those maps that you have there?  29 MR. GOLDIE:  Yes, they are, my Lord.  3 0 THE COURT:  Are they?  31 A   Yes.  32 MR. GOLDIE:  The Telegraph Trail can be discerned.  33 THE COURT:  I suppose we should adjourn here, Mr. Goldie.  34 MR. GOLDIE:  Yes, that's satisfactory.  35 THE COURT:  All right, two o'clock.  36 THE REGISTRAR:  Order in court.  Court will adjourn until two.  37  38  39  40  41  42  43  44  45  46  4 7 (PROCEEDINGS ADJOURNED AT 12:30) 8662  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1  2 I hereby certify the foregoing to be  3 a true and accurate transcript of the  4 proceedings herein transcribed to the  5 best of my skill and ability.  6  7  9 Graham D. Parker  10 Official Reporter  11 United Reporting Service Ltd.  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 8663  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 (PROCEEDINGS RECOMMENCED AFTER LUNCHEON RECESS)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Mr. Goldie.  5 MR. GOLDIE:  My Lord.  6 Q   Mr. Sterritt, I want to leave the purposes that you  7 had in mind in interviewing Mr. Blackwater in 1983 and  8 get to the question of your use of the information you  9 obtained at that time.  And I believe we have covered  10 this, but you utilized that information from the  11 interview in the sense of passing it to Mr. Marvin  12 George and when he made up Exhibit 102?  13 A   Yes, I think that the steps would have been I put it  14 on the maps in the white binder, and then Marvin  15 probably had the white binder maps to work from.  16 Q   The white binder maps, are those the ones that we  17 looked at this morning, Exhibit 725 and 726?  18 A   Yes.  19 Q   And Exhibit 102, that is to say the coded map, shows,  20 just to refresh our recollection, that Niist's  21 property in the northwest does not go east of the  22 Nass, is that right?  23 THE COURT:  Doesn't go east of the Nass?  24 MR. GOLDIE:  25 Q   Does not go east of the Nass.  26 A  Map four shows l-B-3, which is Niist, Baskyelaxhaa.  27 l-B-3.  l-B-3.  The Nass runs down through here, and  28 that's l-B-3 there and l-B-3 there.  29 THE COURT:  He says it does, Mr. Goldie.  30 MR. GOLDIE:  31 Q   In Exhibit 102?  32 A  Map four, I believe, Exhibit l-B-3.  33 Q   And where is the Nass on that please?  34 A   It comes right down along through here.  35 Q   Well, does this territory go east of the Nass?  36 A   I thought you were referring to this area.  37 Q   When I said the northwest, I am referring to the  38 territory which includes the Muckaboo.  39 THE COURT:  l-B-3.  40 MR. GOLDIE:  l-B-3.  But l-B-3 is — My Lord, I am referring to  41 this one up here, up here being the uppermost, if I  42 may put it that way.  43 A   No, it doesn't on that map.  44 Q   And while we are standing here, Wii Minosik does go  45 west of the Nass?  46 A   Yes, I pointed out what happened in that area about  47 this mountain and this area here.  And my -- I pointed 8664  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 out where Walter pointed out on an area on that side  2 and the mountains, and I had gone all around the  3 mountains in that area.  4 Q   And Dawamuxw was identified as the Slamgeesh area  5 territory on Exhibit 102?  6 A   Yes, I believe so.  Yes.  7 THE COURT:  What do you call —  8 MR. GOLDIE:  3F25.  9 THE COURT:  That's Dawamuxw, Slamgeesh?  3 —  10 MR. GOLDIE:  F25.  11 Q   And the territory of Luus, 1-B-l, includes the  12 headwaters of Shahaluu Creek?  13 A   Yes, it does.  14 Q   And the second territory of Niist, that is to say the  15 Canyon Lake territory, is identified as Niist's  16 property, is it?  Am I right in that?  17 A   That's l-B-3?  18 Q   Yes.  19 A   It's Niist, Baskyelaxhaa.  20 Q   All right.  Some changes were made to the territories  21 that were mentioned, that I have mentioned, between  22 Exhibit 102, which is October, 1985, and Exhibit 5,  23 which is May of 1987.  Would you agree that there are  24 some changes?  Perhaps I should go through it with  25 you.  Canyon Lake on Exhibit 5 is now Baskyelaxhaa?  26 A   Yes.  27 Q   Slamgeesh has become Niist.  But there is a name below  28 that.  Can you tell us whose name that is?  2 9 A   Gaiyamlaxha.  30 Q   And that is the name of Mr. Charles Stevens?  31 A   I think that may be, yes.  Gaiyamlaxha,  32 G-a-i-y-a-m-1-a-x-h-a.  33 THE COURT:  Was that "M" or "N" at the end?  34 THE WITNESS:  "M".  35 THE COURT:  "M"?  36 MR. GOLDIE:  Yes.  37 Q   Mr. Stevens is the son of Moses Stevens who held the  3 8 name Dawamuxw?  39 A   Yes, and the brother of Mary Blackwater.  The -- the  40 brother of Mary Blackwater.  Mary is the mother of  41 Walter Blackwater.  42 Q   Yes.  And is Niist and Gaiyamlaxha in the same House,  43 or are they in the same House?  44 A   I think that they are.  45 Q   You are not sure?  46 A   I think that they are.  I am not sure.  47 Q   Now, is there any change made in the territory of Luus 8665  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 in respect of the headwaters of Shahaluu as between  2 Exhibit 102 and Exhibit 5?  3 A   Not at that point, no.  4 Q   Well, I would like to be sure of that, please, Mr. --  5 A   No.  Oh, maybe it is.  Yes, it appears that it is.  6 Q   Yes.  The territory of Luus is reduced and the  7 boundary to the west cuts across the headwaters --  8 cuts across the height of land above the headwaters of  9 Shahaluu Creek; is that right?  10 A   Yes.  11 Q   Right.  Thank you.  Now, as between Exhibit 5 and  12 overlay map 9A the Slamgeesh property is now  13 attributed to Gwinin Nitxw.  14 THE COURT:  I'm sorry, which one?  15 MR. GOLDIE:  Slamgeesh.  16 THE COURT:  Slamgeesh is now Gwinin Nitxws?  17 MR. GOLDIE:  18 Q   You confirm that, do you?  19 A   Yes.  20 Q   And the Canyon Creek property which was Baskyelaxhaa  21 is now Niist?  22 A   Yes.  Canyon Lake, Canyon Creek.  23 THE COURT:  Are the borders unchanged?  24 THE WITNESS:  They will be changed because Baskyelaxhaa is on  25 the south in an area south of there.  That territory  26 is made up of two, what was formerly one large  27 territory is two.  The southern part is Baskyelaxhaa  28 and the northern part is Niist.  29 MR. GOLDIE:  30 Q   Right.  And the Wii Minosik property is restricted to  31 a territory east of the Nass?  32 A   Yes.  33 Q   Niist, however, now extends east of the Nass?  34 A   Yes.  35 THE COURT:  I'm sorry, Wii Minosik is now which side of the  36 Nass?  37 MR. GOLDIE:  Is now restricted to territory east of the Nass.  38 THE COURT:  Yes.  And the other one?  39 MR. GOLDIE:  40 Q   But on the other hand Niist, the northwestern or the  41 uppermost territory, a portion of it extends east of  42 the Nass, is that correct, Mr. Sterritt?  43 A   Yes.  44 Q   The changes which took place between Exhibit 5 of May,  45 1987 and the date of Mr. Blackwater's affidavit, which  46 was sworn May the 13th, 1988, does not appear, so far  47 as our information goes, to come from -- directly from 8666  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 him.  We have been unable to find any notes, field  2 notes of discussions with him.  In that period I mean.  3 A   The identification of features took place when we went  4 out with Nancy, David and Walter, and then there may  5 not have been any -- well, they are pretty extensive  6 notes on that field trip.  7 Q   Yes, those are the sixth, seventh and eighth of  8 September, 1986.  9 A   Right.  And then the changes, the major changes may  10 have occurred on the affidavit, in the writing of the  11 affidavit and when he was reviewing it.  12 Q   And the process that you earlier described for His  13 Lordship of how you drafted an affidavit, took it to  14 him, discussed it with him, another draft and so on?  15 A   Yes.  16 Q   Now, we have identified a number of places where Mr.  17 Blackwater, in his interview in 1983, differed from  18 Mr. Blackwater's affidavit of 1988, and I have gone  19 through some of those with you, and I am talking about  20 differences between the interview in 1983, which form  21 part of the material for Exhibit 102, and the  22 affidavit, Exhibit 605 of May of 1988, which formed  23 the basis of overlay map 9A.  24 A   Yes.  25 Q   We have identified those differences?  26 A   Yes.  27 Q   Now —  28 A  And the basis for some of those differences.  29 Q   Yes.  Of course does it not follow from that, and from  30 what you have told me about his informants as listed  31 in his affidavit, that none of them contributed to the  32 changes that he has accepted between his interview and  33 his affidavit?  34 A   I don't follow that.  35 Q   Well, I put it to you that Mr. Blackwater and you had  36 certain views about territorial boundaries in May of  37 1983 which found their way into Exhibit 102.  38 A   You are referring to the May of '87 map?  39 Q   No, Exhibit 102 is October of 1985.  40 A   That's right.  Okay.  Map four.  41 Q   Yes?  42 A   Yes.  43 Q   And he and you had different views with respect to  44 some of those boundaries when it came to his affidavit  45 of May, 1988?  46 A   In 1983 some of the boundaries that I drew were based  47 on extrapolation based on information he provided me. 8667  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 They were based on some of the information he gave me.  2 At the time he was referring, for example, to  3 Dawamuxw, Moses Stevens, but -- and Moses Stevens had  4 a trapline in that area, but when he sat down and  5 thought about that further, that was clear that  6 that -- really Moses Stevens was only in that area  7 because of his wife, and that it really belonged to  8 Gwinin Nitxw.  He's pretty clear as we go through this  9 transcript over the last couple of days that Tom  10 Sampson is in the Canyon Creek area.  He says it when  11 we get into the forties area where we left off before  12 lunch.  We referred to that over and over.  13 I think some of the boundary areas would be refining  14 that he did when we sat down with an affidavit and he  15 had also had thought about that further.  I -- given  16 the nature of the interview in 1983, and I think he  17 did pretty well there, but I have no trouble with the  18 way that Walter Blackwater, when he thought about it  19 further and when we sat down with an affidavit, the  20 way we, you know, where the final boundaries ended up  21 and the way that they ended up.  22 Q   The question that I put to you was that for whatever  23 reason you and he had different views of the  24 territorial boundaries in May of 1988 than you had in  25 May of 1983.  26 A   Yes, and we have explained those reasons.  I have  27 explained those reasons.  28 Q   Yes.  And that change could not have occurred as a  29 result of any information Walter received from those  30 who he has listed as his informants in his affidavit  31 of May of 1988.  32 A   I also pointed out that the changes were a result of  33 Walter sitting down and thinking more deeply about the  34 nature of the ownership of those territories, changes  35 as a result of some of the extrapolation that I did,  36 also some of the -- possibly some misunderstanding  37 that I had based on limited information, but with the  38 field trip we got a lot more detailed information and  39 were able to work more precisely thereafter.  40 Q   Yes.  The question that I put to you was, whatever the  41 reasons that Mr. Blackwater had, and for whatever  42 cause Mr. Blackwater may have had to make the changes  43 that he did, those cannot be attributed to the people  44 that he lists as informants in his affidavit.  45 A  Well, to the extent that they are the ones who taught  46 him originally, I think we can say that that's the  47 basis for his information. 366?  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 Q   Well, I suggest to you that he was reciting to you in  2 May of 1983 what he believed he had obtained from  3 those people in the early years.  4 A   Yes, and he also had a lot more information in his  5 head that he worked through, and which he would have  6 got from those people as well.  And it's the same  7 information.  He thought about it deeply.  It's from  8 the same people.  9 Q   But he couldn't get it from those people after his  10 interview with you in May of '83, could he?  11 A   He already had it.  They were dead, they were gone,  12 but he already had this information.  13 Q   Of course they were dead.  He couldn't go back to them  14 to find out whether he was right or wrong.  15 A   He didn't have to.  He had been taught by them from  16 the beginning, and he had to sift all through that  17 information and work it out, which he did.  18 Q   That is your explanation, is it, because what I am  19 going to put to you, Mr. Sterritt, is that the  20 Blackwater affidavit is a sham.  21 A  Well, I disagree with you.  22 Q   It is put forward as based upon information Blackwater  23 received from dead people, isn't it?  24 A   Yes, the information there -- what's the point of  25 that?  I don't know what the distinction is between  26 dead and alive people.  Could you explain that.  27 Q   There is quite a distinction, especially for those who  28 are dead.  29 A  What's the distinction in terms -- what is the point?  30 Q   Just agree with me or disagree with me that that  31 affidavit purports to be based upon information  32 received from people who are now or at the time of the  33 swearing of the affidavit were dead.  34 A   Yes.  35 Q   And all of whom were in fact dead before 1983.  36 A   Yes, I believe that's true.  37 Q   None of whom was an informant of yours?  38 A   That's right.  39 Q   And the information which he sets forth in his  40 affidavit differs from those facts and opinions which  41 he expressed to you in May of 1983?  42 A   There was -- I pointed out to you already that in 1983  43 Walter was reacting at a certain level with a certain  44 amount of information.  We had not made a field trip  45 to the area yet, which I felt was going to be  46 important.  We made that in 1986.  The traplines over  47 the years had worked their way into the -- into the 8669  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 language of the people.  Some of that, it's obvious  2 from what he's talking about here, in terms of  3 Dawamuxw and so on, he's talking about the trapline of  4 Moses Stevens in that context, but when he thinks  5 about it more deeply, the hereditary -- the real owner  6 of that territory is Lax Gibuu from the House of  7 Gwinin Nitxw, and all of that information he had more  8 time to think about.  The interview in 1983 was in a  9 certain situation at a certain time.  Possibly if we  10 had had all day or several days and a field trip to  11 the area with David and Nancy and discussed on the  12 ground there the situation amongst themselves, that  13 would have been worked out within days, but we didn't  14 have that field trip.  15 Q   The territorial affidavit was put forward to escape  16 what you understood to be a problem with hearsay  17 evidence?  18 A   I don't know why you use the word escape.  I  19 understood from the discussion partly from, I guess,  2 0 you and from the judge on the bench and the  21 discussions from our lawyers over the issue of hearsay  22 that if a person was living, that they -- then it  23 could only be hearsay.  It had to be from dead  24 persons, and that I could not -- I myself could not  25 come forward with information if those people were  26 living, and they should.  27 Q   Yes.  28 A  And as I understand it, that's the situation.  29 Q   Yes.  30 A   I don't understand it as escape.  I think it was a  31 good process that we went to with the affidavits, and  32 that the hereditary chiefs themselves were able to sit  33 down and review and think deeply about the  34 information, and the affidavits, I think, were an  35 excellent process.  36 Q   But that was the reason why the informants had to be  37 dead at the time the affidavit was sworn, isn't it?  38 A  Well, I don't get your point.  39 Q   Well, haven't you explained it?  40 A  Well, if I have, I don't understand why you are  41 repeating it again.  42 Q   Well, I am asking you to confirm that for every  43 territorial affidavit the informants that the deponent  44 relied upon had to be deceased at the time the  45 affidavit was sworn.  46 A   That's my understanding, yes.  47 Q   Yes.  And the process which took place prior to the -- 8670  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 now going back to Mr. Blackwater.  The process which  2 took place between May of 1983 and May of 1988 was, of  3 course, entirely confined to his discussions and  4 relations with living people, isn't that right?  5 A   Say that again.  6 Q   I say the process which took place between May of  7 1983, when Mr. Blackwater was interviewed by you and  8 expressed certain facts and opinions, and May of 1988,  9 when he swore Exhibit 605, and which caused him to  10 alter some of those statements of fact and opinion,  11 were, of course, based entirely upon his relations  12 with living people.  13 A   I'm not following you.  The process between 1983 and  14 1988 --  15 Q   Yes.  16 A   -- is based on discussions he had with living people.  17 Is that what you're saying?  18 Q   Yes.  The helicopter trips, the discussion that you  19 had with him when you presented him with a draft  20 affidavit, when you relied upon the accumulation of  21 information that you had, that was all based upon  22 living people or the people that you had interviewed?  23 A   Other people you mean?  24 Q   Yes.  25 A   In relation to Walter Blackwater?  26 Q   In relation to the information in Walter Blackwater's  27 affidavit.  28 A   Oh, no.  No.  Walter Blackwater -- I mean, I don't  29 know who are the other people you are talking about,  30 but Walter Blackwater, Nancy Supernault, David  31 Blackwater and I went on a trip.  They identified  32 place names.  33 Q   Yes.  34 A  And throughout that area.  35 Q   Yes.  36 A  Walter, when it came time to do the affidavit,  37 Walter -- I did a draft, as I recall some of that --  38 some of those territories were altered dramatically,  39 because as he went through it he advised me of the  40 changes.  There were -- I don't know to what extent  41 Walter may have talked to other people, but certainly  42 it's a process that all of the hereditary chiefs like  43 to engage in, to go to other people and confirm and  44 verify what they know or what they understand, but  45 Walter's understanding of -- for example, Moses  46 Stevens and his relationships with his grandmother and  47 the land is something that he would have worked out. 8671  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 Q   Well, is it your evidence that he hadn't worked it out  2 in May of 1983 when you interviewed him?  3 A   I have already pointed out to you that we discussed  4 the information at a certain level, and I asked him  5 some questions and he answered.  6 Q   And he stated -- and we have gone through this?  7 A   Yes, we have.  8 Q   He stated that Dawamuxw owned the property?  9 A   Yes, but he was referring to the trapline.  10 Q   Oh, Mr. Sterritt, you agreed with me --  11 A   He uses the term property, but he is referring to the  12 trapline.  13 Q   You agreed with me when I read to you, and you heard  14 played on the tape, that Mr. Blackwater wasn't  15 referring to traplines when he was talking about the  16 property or territory of Dawamuxw.  I hope we don't  17 have to go through that again.  18 A  Well, we have gone through it several times.  Moses  19 Stevens had a registered trapline in that area.  It  20 was the territory of Gwinin Nitxw.  21 Q   But we are talking about what Mr. Blackwater said in  22 1983.  23 A   I know we are.  24 Q   And he wasn't talking about traplines when he was  25 talking about the property --  26 A   I think he was.  27 Q   Well, we'll -- we'll have to rely upon the tape and  28 the record and upon your earlier statements.  29 A  And what I have just said.  I have just said that --  30 and he's explained that, and when he got into the  31 affidavit process he pointed out that Gwinin Nitxw was  32 in that area.  33 Q   Now, Mr. Sterritt, would you not agree with me that if  34 Mr. Blackwater had placed -- had put down on a piece  35 of paper the source of the information that he relied  36 upon with respect to the territories in May, 1988,  37 that he would have used the names of a good many  38 people, most of whom were then living?  3 9 A   I don't know.  40 Q   Well, he would have used your name, wouldn't he?  41 A   I don't think so.  42 Q   Well, you brought to him an affidavit based on your  43 accumulation of knowledge and said, "Now, what about  44 it?"  45 A   No, he -- I brought to him an affidavit which he then,  46 as we went through it, he began to carve up.  47 Q   Uh-huh.  Now, of course in the period from May, 1983 8672  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 to May, 1988 the litigation was either contemplated or  2 in progress, is that correct?  3 A   It wasn't in progress, and May of 1983 I don't know  4 whether it was being contemplated.  5 Q   Well, wasn't this -- wasn't litigation in  6 contemplation in February of 1979?  7 A   No.  No.  The people had every intention of entering  8 into negotiations, and what was -- it was suggested  9 the litigation may be a possibility, but it certainly  10 wasn't being contemplated.  The people believed -- had  11 every reason to believe that all things being equal  12 they would be able to enter into negotiations.  13 Q   Well, in May, 1983 I am putting to you that the  14 litigation was contemplated.  Now, is your answer to  15 that yes or no?  16 A   It might have been.  I don't recall.  17 Q   All right.  And of course by October of '84 it was in  18 progress?  19 A   Yes.  20 Q   And I suggest to you that in either case, May, 1983  21 or, of course, May, 1988, it was -- there was an  22 atmosphere of expectation of compensation from the  23 litigation or from the settlement of land claims with  24 the federal government.  25 MR. RUSH:  Excuse me, I think that the question requires, in  26 fairness to the witness, some more particularity, as  27 my friend is saying an atmosphere in respect of Mr.  28 Blackwater, which seems to be the context of his  29 questions, or among all hereditary chiefs.  30 THE COURT:  Perhaps you can put the question again, Mr. Goldie.  31 MR. GOLDIE:  32 Q   Let me put it this way.  That the period that we are  33 speaking of, May, 1983 to May, 1988, was within a  34 period in which there was an expectation within the  35 Gitksan community of substantial compensation from  36 either the settlement of land claims through  37 negotiation with the federal government or through the  38 litigation with the provincial government.  39 A   No, I don't recall that being a major topic or topic  40 of discussion --  41 Q   Well —  42 A   — at all.  43 Q   Was it not the topic of discussion within the Tribal  44 Council?  45 A   It was one element, I think, that was discussed, but  46 it wasn't a major element by any means at all.  47 Q   Now, the situation that I have outlined to you, that 8673  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 is to say the reliance upon stated informants who were  2 dead when the affidavit was sworn, and the potential,  3 if not the actual fact of information coming to the  4 deponent from living sources, is a fact that applies  5 to each of the territorial affidavits, doesn't it?  6 A  Well, I don't think that we've gotten that far.  As I  7 understand it, it was a requirement of the course that  8 it had to be deceased persons written into the  9 affidavit.  10 Q   Whatever your understanding was, my question is that  11 the territorial affidavits all follow the same format,  12 don't they?  13 A   Yes.  14 Q   They each use a common vocabulary when it comes to  15 talking about conservation and the jurisdiction?  16 A   There is a common vocabulary in there, yes.  17 Q   Each purports to rely upon people who are dead at the  18 time the affidavit was sworn?  19 A   Yes.  20 Q   And I am suggesting to you that each was arrived at  21 through a procedure that you have described as  22 drafting an affidavit, using your accumulated  23 knowledge and taking it to the deponent and going  24 through it with him draft by draft until he agreed  25 with what you described to him.  26 A   No, not -- that's not right.  It's not what I  27 described to him.  It's what the hereditary chief told  28 me was the proper boundary.  29 Q   Well, now, we have gone through this before, Mr.  30 Sterritt, that you used words which explained to him  31 the words in the affidavit which were to be utilized  32 by the cartographer in making a map, isn't that right?  33 A   Yes.  And then when the affidavit was put in front of  34 the hereditary chief, if that was wrong, they changed  35 the wording.  36 Q   Yes.  All right.  I am suggesting to you that the  37 procedure, however, which I have just described and  38 which we went through the first day of your resumed  39 examination, the procedure that you drafted the  40 affidavit, you balanced the need for Mr. George's  41 requirements with respect to mapping information and  42 the need to explain to the chief, and you explained to  43 him what those words in the affidavit meant.  You  44 described it to him.  45 A  And then the chief corrected me, if correcting was  46 needed, and described where the boundary went.  Became  47 his affidavit. 8674  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 Q   A source of his information, the major source of his  2 information, the only source of his information with  3 respect to what those words in the affidavit meant was  4 you?  5 A   No.  6 Q   Well, who else was with you?  7 A   The hereditary chief, if they knew the name of a  8 mountain along a boundary, they provided the source of  9 that information, not me.  10 Q   I'm sorry, I may have mislead you.  I am talking about  11 the time when the affidavit was presented to the  12 hereditary chief by you.  13 A   You mean for the first time?  14 Q   Yes.  15 A   On the first go round they were my words.  They didn't  16 necessarily have wording that Marvin George needed,  17 but generally my words, and then I sat down with the  18 chief, went around, and they -- the affidavit became  19 the words of the hereditary chief.  20 Q   After you explained the words in the affidavit?  21 A  And then the hereditary chief changed the boundary  22 according to his knowledge of where the boundary was.  23 Q   So the source of his information with respect to the  24 wording in the affidavit was you?  25 MR. RUSH:  The first draft of the affidavit?  26 MR. GOLDIE:  27 Q   Yes, the first draft affidavit.  28 A   The first draft.  29 Q   Yes.  That's correct, is it not?  30 A  Well, I want to be clear.  31 Q   Yes.  Well, first draft your answer is yes?  32 A   Yes.  33 Q   All right.  Then if there was a second draft, would  34 you come back and the process would be repeated?  35 A  And repeated with the words of the chief.  If he said  36 there is a mountain in here or a river, a creek, then  37 that was put in, but if there was an English word that  38 was needed that -- to explain it, yes, those were  3 9 mine.  40 Q   All right.  Or if he described a feature to you in  41 terms that Marvin George couldn't use, you would take  42 his description and turn it into words that Marvin  43 George could use, and explain that to the chief?  44 A   Oh, yes, I would explain to the chief that -- no.  45 Let's see.  You mean like using northeast or along the  46 height of land or something like that?  Is that what  47 you are talking about? 8675  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 Q   Well, I'm suggesting to you --  2 A  Well, let's use the example of along the height of  3 land.  4 Q   Uh-huh.  5 A   Then -- or down the height of land along a mountain.  6 In that situation I might say to the hereditary chief  7 Luu Bax Dawihl Sganist, L-u-u space B-a-x space  8 D-a-w-i-h-1 space S-g-a-n-i-s-t, and then I might give  9 the name of the mountain, Sganis Wijix, S-g-a-n-i-s  10 space W-i-j-i-x.  So I would explain it going up along  11 the height of land, along the mountain, the mountain  12 called Caribou Mountain.  I would say that in Gitksan,  13 and then the chief would say yes.  Then I would write  14 that in English, or down a creek I would say Gisi  15 Dawihl Xsu Gwin Hliiyuun, G-i-s-i space D-a-w-i-h-1  16 space X-s-u space G-w-i-n space H-1-i-i-y-u-u-n.  That  17 means going down Mosque River, and I would explain  18 that, and then they would say okay, and then I would  19 put that in English, right.  20 Q   Yes.  So the —  21 A  And so the words of the chief, if he was talking about  22 that creek, I would ask him or I would say the words  23 of the chief would -- they might come back in Gitksan.  24 He would agree in Gitksan or he would explain more to  25 me in Gitksan or in English, and if I didn't  26 understand, I would get help, and then the affidavit  27 would be -- then I would put that into English.  It  28 would be pretty hard to put it all in Gitksan and then  29 have you understand it.  30 Q   Now, if the affidavit of Mr. Blackwater had been sworn  31 in May of 1983 and you gave him the name of Angodjus,  32 he would have understood you to be describing a  33 mountain which doesn't bear that name in Gitksan at  34 all.  35 A   I think if we had sat down to do affidavits in 1983  36 and to go through that kind of a process, it would  37 have been clear that he would not have signed an  38 affidavit to say Angodjus was near Blackwater, because  39 it was down near Poison Mountain.  I think that kind  40 of a process, I'm glad we got into it, because it was  41 a good process.  42 Q   I take it that you do not agree with me that the  43 affidavits are defective in the sense that they do not  44 name all of the informants of the deponent?  45 A   Oh, there are living people that may have provided  46 information to hereditary chiefs.  They certainly have  47 a wealth of information coming to them in the past and 3676  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 in the present, but to what extent the information of  2 an individual is weighted one way or the other, I  3 would suggest -- more than suggest it's Jimmy  4 Blackwater, an extremely knowledgeable man, Moses  5 Stevens, Charles Sampson, all of those people  6 extremely knowledgeable and would have played a large  7 part in the education of Walter Blackwater, and  8 subsequent people to what extent I couldn't say.  9 Q   Well, do you agree or disagree with my suggestion to  10 you that the territorial affidavits are defective?  11 A  Well, define the sense.  12 Q   In not naming the source of information upon which the  13 deponent relied.  14 THE COURT:  Not naming all sources?  15 MR. GOLDIE:  16 Q   Not defining all sources of information.  That's  17 correct.  Thank you, My Lord.  18 A   Yes, but our understanding was that because of hearsay  19 that they couldn't.  That was my understanding.  20 Q   Well, that may be your understanding, Mr. Sterritt,  21 but is that the reason why certain sources of  22 information were left out?  23 A   Out of the affidavits, yes, because if the people are  24 living, then it's hearsay.  25 Q   All right.  So you —  26 A   That's right.  27 Q   You agree with me, then, that the territorial  28 affidavits are defective in the sense that they do not  29 name all of the sources of information that the  30 deponent relied upon?  31 MR. RUSH:  Well, doesn't that call for an opinion which my  32 friend might well argue from certain facts?  33 THE COURT:  I think the word defective, Mr. Goldie, does imply  34 the application of legal and evidentiary principles to  35 facts which are now pretty clear.  36 MR. GOLDIE:  37 Q   Well, I won't press the point, but I just want to put  38 one further question.  Would you agree with me that  39 every territorial affidavit omits the names of sources  40 upon which the deponent relies for his opinion?  41 A   I couldn't say that, because -- no, I couldn't agree  42 with that, because I don't know to what extent there  43 may have been live informants who assisted hereditary  44 chiefs, or they sat down and discussed, amongst  45 themselves, information.  I couldn't say that.  46 Q   Well —  47 A   I couldn't say that. 8677  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 Q   Yes.  All right.  But let me -- we have been talking  2 almost entirely about Mr. Blackwater's affidavit.  Am  3 I correct in my understanding that your most  4 frequently consulted informant in 1987, after June the  5 26th and in 1988, would be Mr. Stanley Williams?  6 A   He was certainly the person that I talked to a lot,  7 yes.  I don't know whether -- he could have been the  8 one that I consulted the most, but I'm not sure about  9 that.  10 Q   He certainly speaks to the greatest number of  11 territories, doesn't he?  12 A   Yes.  13 Q   And he swore two affidavits?  14 A   I believe so, yes.  15 Q   One in November of 1987, which I understand is Exhibit  16 446-11, and one in -- which is Exhibit 446-2, is in  17 1988.  Could I have exhibit -- those two exhibits,  18 please, Madam Registrar.  19 THE REGISTRAR:  446-2 and 11.  20 MR. GOLDIE:  Thank you.  21 Q   Mr. Sterritt, the 446-2 is sworn on March the 30th of  22 1988, and I am going to refer you to page 17.  23 THE COURT:  The date again?  24 MR. GOLDIE:  March 30th, 1988.  2 5 THE COURT:  Thank you.  26 MR. GOLDIE:  27 Q   That is Mr. Williams' description of the territory of  28 Herbert Burke, Wii Hlengwax.  That's W-i-i space  29 H-1-e-n-g-w-a-x.  30 THE COURT:  W-a-x?  31 MR. GOLDIE:  W-a-x.  Yes, My Lord.  32 THE WITNESS:  Yes.  33 MR. RUSH:  Did you mention that it was page 17?  34 MR. GOLDIE:  I thought that was the right page.  35 THE COURT:  Page 7?  36 MR. RUSH:  Page 17.  37 MR. GOLDIE:  Yes.  38 THE COURT:  I'm sorry, I'm not sure I got that name spelt right.  39 W-i-i space H-l-e-n --  40 MR. GOLDIE:  — G-w-a-x.  41 THE REGISTRAR:  It's number 76 on the plaintiff's list, My Lord.  42 THE COURT:  What number?  43 THE REGISTRAR:  Number 76.  44 MR. GOLDIE:  45 Q   And that's Mr. Herbert Burke, is it?  46 THE REGISTRAR:  Yes.  Sorry, I thought you were asking me.  47 MR. GOLDIE:  I accept that answer. 367?  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 Q Now, if you look at paragraph 67, Mr. Sterritt.  Do  2 you see paragraph 67?  3 A Yes.  4 Q The informants are Charles Smith and Mathias Bright?  5 A Yes.  6 Q And they were both dead -- well, can you tell me  7 anything about their deaths?  8 A No, I can't.  9 Q They never were around when you were actively  10 investigating the land claims?  11 A No.  12 Q We may assume, then, that they died before 1975?  13 A I don't know.  14 Q But in any event would you agree with me that they  15 died earlier than January the 25th, 1987?  16 A Yes.  17 Q Because in his November -- yes, all right.  Now, if  18 you refer to paragraph 68.  19 A Uh-huh.  20 Q There is a creek that I have spelled as L-u-u-m space  21 A-n-s-a-g-a-n space T-s-a-1-t-w-i-t, Luum Ansagan  22 Tsaltwit.  Now, that is an unnamed south flowing  23 tributary of Insect Creek, is that correct?  24 A Yes.  25 Q And Insect Creek is the same thing as Mosquito Creek?  26 A I'm not sure.  27 THE COURT:  Mr. Goldie, was that last one S-g-a-n-1 or T?  28 MR. GOLDIE:  S-a-g-a-n, new word T-s-a-t-w-i-t.  2 9    THE COURT:  Thank you.  30 THE WITNESS:  It's only Insect Creek on this map.  31 MR. GOLDIE:  32 Q Well, do you not understand that to be colloquially  33 referred to as Mosquito Creek?  34 A It may be, yes.  35 Q Those are my instructions.  Not that that should  36 influence you.  At any rate, in the paragraph that you  37 are looking at that creek is identified, is it not?  38 A Yes.  39 Q And it is part of the boundary of the territory?  40 A Okay.  You are referring to Insect Creek as being part  41 of the boundary?  42 Q No, I am referring to this tributary that comes into  43 Insect Creek.  44 A Yes.  45 Q Now, from that description where do you say he places  46 that creek?  By that I mean in whose territory.  47 THE COURT:  The creek or the tributary? 8679  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 MR. GOLDIE:  2 Q   The tributary.  Thank you, My Lord.  3 A   The tributary is the boundary between Wii Hlengwax  4 Tenimgyet, T-e-n-i-m-g-y-e-t, and W-i-i space  5 H-1-e-n-g-w-a-x.  6 Q   And it's not possible to tell from that in whose  7 territory that falls?  8 A  Well, it describes it -- no, it's describing Wii  9 Hlengwax's territory there.  10 Q   But I mean from the description that's before you, you  11 are not able to say in whose territory.  I realize  12 it's a boundary in part, but you are not able to say  13 from the description where he placed the ownership of  14 that tributary?  15 A  Well, here he says it runs north along the east bank  16 of Luum An Sagan Tsaltwit, L-u-u-m space A-n space  17 S-a-g-a-n space T-s-a-1-t-w-i-t.  So it runs along the  18 east bank, then the creek is in Tenimgyet's territory.  19 Based on that.  20 Q   Yes, thank you.  Now, I want to refer you to -- if you  21 just put the 1988 affidavit to one side.  I want to  22 refer you to the 1987 affidavit.  23 THE COURT:  That's 446-11?  24 MR. GOLDIE:  Yes, My Lord.  And at page 17 again.  25 Q   Is that the description of the Insect Creek as  26 perceived by Mr. Williams in November of 1987?  27 A  Was this the affidavit that was replaced by this one?  28 Q   Yes.  29 A   Yes, I had -- this is a much -- this is one of the  30 earlier affidavits.  It was written in a way that  31 was -- well, it had two problems.  One of the problems  32 was that when Stanley sat down and when I went over  33 this with him again, he said I was wrong in what I had  34 done, and also it wasn't as clear, in terms of the map  35 maker for Marvin George, and I had made an error at  36 the head of Insect Creek.  It's not described there.  37 Q   Yes.  There is no reference to the tributary which is  38 identified in the 1988 affidavit?  39 A  Well, there is.  It's mentioned on item number 6 on  40 page 18, Gan Tsaltwit, which is a mountain in an area,  41 and Luum An Sagan Tsaltwit, which is mentioned on page  42 19.  Talking about the same feature, but I had gone in  43 the same place there.  44 Q   You are quite right.  The tributary is not mentioned  45 in the description, is it?  46 A   No, it's mentioned in the affidavit.  47 Q   It's mentioned in the affidavit as a feature within 8680  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 the territory?  2 A   Yes.  And I had made an error in where that went, and  3 Stanley caught it when we went over that again.  4 Q You mean after it had been sworn and filed?  5 A This one, yes.  6 Q This one being the November affidavit?  7 A Well, I can't remember what the sequence was, but it  8 was after that that we went over that and he corrected  9 it.  10 Q   Well, that actually changed the boundary, as you have  11 stated?  12 A   Yes, it did.  13 Q   Your failure to pick up the fact that this unnamed  14 tributary formed a boundary and was not a feature  15 within the territory --  16 A   Yes.  17 Q   -- the effect of it was that in his later affidavit he  18 placed the creek in the territory of Art Mathews  19 junior, whereas in his earlier affidavit he placed  20 that creek, this unnamed tributary in the territory of  21 Herbert Burke?  22 A  Well, that was the effect of the work at that time,  23 from the affidavit, but -- just a minute.  I think  24 there is something else there as well that you are  25 missing.  26 THE COURT:  Well, while you are looking for that, Mr. Sterritt,  27 we will take the afternoon adjournment.  28 THE REGISTRAR: Order in court.  Court will recess.  29  30 (PROCEEDINGS ADJOURNED FOR A SHORT RECESS)  31  32 I HEREBY CERTIFY THE FOREGOING TO  33 BE A TRUE AND ACCURATE TRANSCRIPT  34 OF THE PROCEEDINGS HEREIN TO THE  35 BEST OF MY SKILL AND ABILITY.  36  37    3 8 LORI OXLEY  39 OFFICIAL REPORTER  4 0 UNITED REPORTING SERVICE LTD.  41  42  43  44  45  4 6 (PROCEEDINGS RESUMED AT 3:15)  47 8681  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 THE REGISTRAR:  Order in court.  2 THE COURT:  Mr. Goldie.  3 MR. GOLDIE:  4 Q   My Lord.  Mr. Sterritt, you wish to say something  5 about both of those affidavits?  6 A  Well, on affidavit -- which one have I got here?  7 Where's the other one?  8 Q   They should be both there.  9 A   Oh, up on number 69 on page 18.  10 THE COURT:  I'm sorry, which affidavit is that, please?  11 A   446-11.  12 THE COURT:  Yes?  13 A   Is the reference to Tsim Tsaltwit, which should be Gan  14 Tsaltwit and the area of Art Matthews within that  15 territory.  As far as I know there is no Tsim Tsaltwit  16 within that territory, but I see the same mistake was  17 made on the other affidavit.  But in any event, that's  18 what that is referring to.  19 MR. GOLDIE:  20 Q   I'm sorry.  What is that which you are now speaking  21 about?  22 A   The reference to the area within the Wii Hlengwax, and  23 I didn't understand everything that Stanley was  24 telling me, and then when we went through it again  25 later he clarified that, and that's what that is.  26 Q   Well, the -- what I wish to draw to your attention,  27 that in the November 1987 affidavit as sworn to by  28 him, he places the creek in question in the territory  29 of Mr. Burke?  30 A   Yes.  And that's what I'm pointing out to you here.  31 Q   Well, I'm suggesting to you that without your  32 correction in the affidavit of November 1987 he places  33 the creek in the territory of Mr. Burke and he  34 identifies it as a feature in the territory, isn't  35 that correct?  36 A   In the -- yes, but in the same affidavit of Mr. Burke,  37 that area there, Art Matthews, Jr., also owns a small  38 area in this territory at what should be Tsin  39 Tsaltwit, and there's also a trail in -- known as Bax  40 Ganan Git Wilt, T-S-I-N space T-S-A-L-T-W-I-T, and  41 then the next part is B-A-X space G-A-N-A-N space  42 G-I-T space W-I-L-T.  That's the same area that is —  43 that becomes better defined on the second affidavit.  44 Q   All right.  The question -- we have to take these  45 affidavits as we find them, and the question I put to  46 you is taking that affidavit, the November affidavit  47 in its literal form, it places this creek within the 8682  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 territory of Herbert Burke?  2 A  And identifies an area there that is also the  3 territory of Gibeumget.  4 Q   Yes.  Perhaps so, but the creek itself is asserted to  5 be, by Mr. Williams, a feature within the territory of  6 Mr. Burke's?  Isn't that what he is stating in the  7 later paragraph.  Geographical features on the  8 boundary and within the territory are --  9 A   Yes.  But that's clarified there and also with the  10 other affidavit.  This is -- the description in this  11 one is more general in the -- on the November  12 affidavit, and it is replaced by the later affidavit.  13 Q   Yes.  And the later affidavit he places within the  14 territory of Art Matthews, Jr.?  15 A   Yes.  16 Q   Yes, all right.  17 A  And on the earlier one it's referred to within  18 paragraph 69.  19 Q   Well now, in the material that was furnished us in  20 September 14th of this year I find a one-page  21 memorandum apparently of a meeting that you had with  22 Mr. -- that you had with Mr. Williams.  And I would  23 ask you to be good enough, if you can identify that.  24 First, is that your handwriting or printing?  25 A   Yes, it is.  26 Q   And the date would be the 25th of January, 1987?  27 A   Yes.  28 Q   And the interview or the discussion was with Mr.  29 Williams, Gwis Gyen, G-W-I-S G-Y-E-N?  30 A   Yes, it is.  31 Q   And the first item he's talking about this creek, is  32 he not?  33 A   Yes, Tsin Tsaltwit.  34 Q   And he says -- or you say "SWM'S doesn't know who owns  35 it".  That's Stanley Williams?  36 A   Yes.  37 Q   Well, are you recording then the fact that -- that Mr.  38 Williams told you on the 25th of January, 1987 that he  39 didn't know who owned the creek?  40 A   Yes.  That's what I say there.  41 Q   Now, by November of '87 it appears ambiguous, let's  42 put it that way.  He identifies the creek as a feature  43 on the boundary or in the territory of Mr. Burke, and  44 you tell me that a close reading would indicate that  45 he is also identifying a feature within that territory  4 6 which belongs to Mr. Art Matthews?  47 A   Yes. 8683  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 Q   Right.  But then when we come to March, there's no  2 doubt about it, he clarifies it?  3 A   Yes.  4 Q   Does that not suggest that Mr. Williams received  5 information about the ownership of a feature within  6 the property after the 25th of January, 1987?  7 A   He may have.  8 Q   And that could come only from somebody other than the  9 informants that he names in his affidavit, Charles  10 Smith, Mathias Wright?  11 A   Yes.  That's possible.  12 MR. GOLDIE:  All right.  I want to -- could that be marked as an  13 exhibit, my lord, or it can be placed --no.  I would  14 prefer to tender it as a separate exhibit.  15 THE COURT:  Yes, the next exhibit.  16 THE REGISTRAR: Exhibit 747.  17 EXHIBIT 747 - Photocopy of one page of notes -  18 memo dated January 25, 1987 Neil Sterritt and  19 Stanley Williams  20 MR. GOLDIE:  21 Q   I want to deal with some of the evidence that you gave  22 of the reason for changes between Exhibit 102 and  23 overlay map 6, which is Exhibit 680, and if Exhibit --  24 yes, Exhibit 680, my lord, is described as the map of  25 metes and bound description of the  26 Gitksan-Wet'suwet'en territories in Appendix A of  27 Sterritt's summary of opinion, and your Lordship will  28 recall that that map did not appear until the  29 beginning of the trial.  Now, your evidence that I  30 wish to refer to is under tab 14 of the brown book,  31 and I'm going to refer first to Treaty Creek, and a  32 reference to which I wish to draw your attention is in  33 volume 124, which is the last extract under tab 14.  34 Does your Lordship have that?  35 THE COURT:  Yes.  36 MR. GOLDIE:  37 Q   And there was your evidence in chief given on  38 September 12th, 1988, at page 7614 lines 20 to 46.  39 Mr. Rush asked you:  40  41 "Q Now, Mr. Sterritt, did you provide any  42 information to Mr. George in assisting -- to  43 assist him in preparing what is now map 680,  44 Exhibit 680?  45 A Exhibit 680 being the March 9th, 1987 map?  46 Q Yes, yes.  47 A Yes, I did.  Marvin had copies of the white 8684  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 binder with six maps of mine, he had access  2 to my field books and any information that I  3 received that updated previous information I  4 passed along to him, either by phone or  5 by going to his office, and informing  6 him of the changes.  7 Q Now, I'd like you to look at map overlay  8 four and map number 6."  9  10 And map overlay 4, is, Mr. Rush goes onto explain, is  11 the map that's dated October 17th, 1985, and is the  12 so-called coded map which is Exhibit 102.  And then  13 you were -- then went through certain changes, and at  14 that time page 7618 at line 46 you were asked:  15  16 "Q Let me ask you about the next change on the  17 external boundary, I think you were about to  18 direct our attention to an area around  19 Treaty Creek."  20  21 And then at line 6 you say:  22  23 "A Yes.  The boundary went from -- changed to  24 go down the creek which we call Xoo, to  25 the -- it's Treaty Creek on the map, and to  26 the Bell-Irving, and then up the  27 Bell-Irving."  28  29 THE COURT:  I'm sorry, Mr. Goldie, I thought you said 7618.  30 MR. GOLDIE:  Oh, I started at line 46 of 7618, and I've gone  31 over now to --  32 THE COURT:  Oh, yes, all right.  33 MR. GOLDIE:  34 Q   Gone over now to page 7619, and I got down to line 9,  35 and then Mr. Rush asked you to outline the area on the  36 map that you're referring to, and if I may draw your  37 attention to it, Mr. Sterritt, I'm referring you to  38 the overlay which is map -- is actually the overlay of  39 map 9-A, but the area in question is in the north-west  40 corner of the Claims territory and results in a finger  41 being created reducing the territory by running the  42 boundary down Treaty Creek to about Bell-Irving River  43 and then up the Bell-Irving, is that correct?  44 A   Yes.  45 MR. GOLDIE:  Right.  46 MR. RUSH:  I think my Lord if my friend is going to make  47 extensive references to the two overlays perhaps they 8685  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 should be placed on the base copy and reference can be  2 made to them by Mr. Sterritt, if he feels it necessary  3 to make such references.  4 THE COURT:  Yes, all right.  5 MR. GOLDIE:  I have no objection to that, my Lord.  I'm not  6 going to make extensive references to the maps, I just  7 simply wanted to identify the area that we're talking  8 about, but Miss Sigurdson can put the overlay up.  9 Then returning to page 7619, you describe the change  10 that is made, and at line 22 my friend says:  11  12 "Q     Now, did you obtain information from a  13 hereditary chief which led to you conclude  14 that the boundary should be changed in that  15 area?  16 A     Yes, Nii Kyap, David Gunnanoot, was of that  17 area and he described that to me and when I  18 sat down with him and reviewed the boundary  19 in that area, original -- the territory  20 belongs to the house of Skiik'm lax ha.  I  21 don't know if you have a number for that.  22 MR. RUSH:  Yes. That's 59 in the plaintiffs'  23 list."  24  25 And then you continue at line 34:  26  27 "A    And Mr. David Gunanoot's grandfather was  28 from the House of Skiik'm lax ha.  He was  29 allowed by a successor to his grandfather  30 to register a trapline in this area and the  31 trapline boundary was north of Treaty Creek  32 and part of the reason that I went from the  33 headwaters of Treaty Creek over to the  34 Bell-Irving, it was an extrapolation that I  35 made and partly the description which David  36 was giving me, which was more about his  37 trapline than it was about the territory,  38 when I sat down after instruction from the  39 lawyers, got more precisely what the  4 0 boundary was, then David informed me that it  41 did go down Treaty Creek and up the  42 Bell-Irving River."  43  44 And the -- I won't read -- well, my friend says at  45 line 47:  46 "Q     So when you refer to the extrapolation, you  47 mean as it is shown on map 4, which is dated 8686  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 October 17, 1985?  2 A Yes."  3  4 Now, if I understand your evidence correctly, you  5 suggested that the boundary in the area we're talking  6 about was an extrapolation on your part and that  7 afterwards David Gunanoot gave you more precise  8 instructions.  Is that a fair summary of what you've  9 said?  10 A   Yes, as I recall.  11 Q   I'm going to suggest to you the sequence is exactly  12 the opposite, that the latest boundary is an  13 extrapolation and that Mr. Gunanoot's precise  14 instructions were with respect to the boundary as it  15 is shown on Exhibit 102.  That's not in accordance  16 with your recollection?  17 A   Yes.  David had mentioned that it should go in, but he  18 was talking about the -- he was talking about the  19 trapline being in that area, and his trapline did go  20 north of that area.  21 Q   Yes.  But didn't he also tell you that his territory  22 and that of Old Daniel Skawill went north of -- went  23 along the line as he originally described?  24 A   He has told me that his territory went up there and  25 also that was Skiik'm lax ha's territory, but that  26 the -- that the creek, Treaty Creek should be the  27 boundary.  28 Q   I see.  Well, I'm going to ask you to turn to tab 15  29 in the brown book and the first page under the title  30 page of "Journal of Neil Sterritt" is an entry for  31 December 12th, 1976.  And can you make that out:  32  33 "Meeting with various chiefs to review territorial  34 map, Nii gyap, David Gunanoot; Spookw, S.  35 Robinson; Himadim(?), P.C. Wilson; Gyedemgaldo,  36 T. Danes, Brown, Mowatt, Wright, McLean."  37  38 And so on.  Now, that was a meeting in 1976 to review  39 a territorial map.  Do you have any recollection of  40 what map it is that you're talking about here?  41 A   Yes.  That was in 1976.  42 Q   Yes.  And was that the map which was subsequently  43 approved for presentation to the federal government?  44 A   No.  It was a map -- the map that ended up being  45 approved was on a scale of 1 to 500,000.  As I recall,  46 the one that was put in in front of them was 1 to  47 250,000. 3687  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1  Q  2  3  4  A  5  Q  6  7  A  8  9  10  11  12  Q  13  14  15  16  17  18  19  20  21  22  23  24  A  25  Q  26  27  28  29  30  31  A  32  Q  33  34  35  A  36  Q  37  38  39  40  41  A  42  THE COURT:  43  A  44  THE COURT:  45  A  46  THE COURT:  47  MR. GOLDIE  Yes.  That's to say the same scale as the large maps  that we have seen here and which have been marked  Exhibit 5 and Exhibit 102?  Yes.  These chiefs apparently were able to follow a map,  were they?  I was pointing out creeks and rivers, but by and  large, no, they were -- I was pointing out where the  head of the Skeena was, the head of the Nass, the  Bell-Irving River, and I couldn't say that they could  follow in detail around that map.  All right.  What -- I'm going to ask you to go up to  Exhibit 102 and just follow so his Lordship can follow  you, a description which David Gunanoot gave of his  territory and that of Old Daniel Skawill, that we can  judge the precision of Mr. Gunanoot's description.  And I'm reading from that entry in December 12th:  "David Gunanoot says his territory and that of old  Daniel Skawill" —  Now, just pause there.  Old Daniel Skawill was Skiik'm  lax ha, was he?  Yes, he was.  All right.  "Crosses Bowser River" --  I think it's two and a half miles, but it might be  seven and a half miles west of Bowser Lake?  All right.  "Up past and around headquarters Treaty Creek."  "Headwaters"..  "Headwaters Treaty Creek, down east side Teigen  Creek, south mouth on Snowbank Creek, along south  side Snowbank Creek to Bell-Irving River."  This is Snowbank Creek right here.  Where's the mouth?  Right there.  I see.  Where it runs into --  Yeah.  Yes, all right, yes. N.J. 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  THE  MR.  THE  MR.  MR.  THE  MR.  THE  MR.  Q   And then:  "Across the Bell-Irving River and then north along  east shore Bell-Irving to point opposite mouth  of Owl Creek."  A   Owl Creek is right here.  Q   Yeah, all right.  Now, that's -- that was a pretty  easy description to follow, wasn't it?  A   Yes.  GOLDIE:  And that was a description which was approved by a  group of chiefs on December 20th, 1976.  And I'm  referring you to the next page of what is found under  tab 19, an entry under December 20th, 1976.  And that heavy line you showed me, Mr. Sterritt, is  on what overlay?  That's Exhibit 102, but the map that -- the map that  that would have been on is the reproduction at this  scale of the map that was presented to the federal  government in 1977.  All right.  I don't know what number that is.  All right, that's good enough.  MR.  THE COURT  A  COURT:  A   I  COURT:  GOLDIE:  Q   I  think it's --  A   It's probably the first overlay.  COURT:  All right.  GOLDIE:  Q   Well, there is a coincidence of the boundary at that  point between the federal government presentation in  1977, 102, and the map which was attached to the  Statement of Claim in October of 1984, isn't that  right?  When I say coincidence, the boundary there is  all the same?  A   Yes.  Q   Now, I was going to direct your attention to entry  December 20th, 1976.  By the way, all these entries  are in your handwriting?  A   Yes, yes.  That's my writing.  GOLDIE:  By these entries, I mean the one I read from  December the 12th.  And on December 20th you say or  record Lands Claims meeting at Kispiox well attended,  so on and so forth.  COURT:  Where have you got that now?  GOLDIE:  It's under tab 15, my Lord.  COURT:  Yes.  GOLDIE:  It's the fourth sheet in.  It's got at the bottom 8689  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 of the page number 19, which we put on.  2 THE COURT:  Yes, all right.  Where do you see that now?  3 MR. GOLDIE:  I'm in the first paragraph.  4 THE COURT:  Oh, yes.  5 MR. GOLDIE:  6 Q   Lands Claim meeting at Kispiox.  And I'm going to skip  7 down to the fourth line:  8  9 "David Gunanoot, Tommy Danes, Art Kusick, Art  10 Sampson, Paul Jack, Walter Brown, Jessie Sterritt,  11 Martha Brown, Henry Wright, Joshua McLean, Sammy  12 Gunanoot, etc."  13  14 Now, that was -- those people were all hereditary  15 chiefs?  16 A  Most of them are, yes.  17 Q   And:  18  19 "The boundary on the north-west, north, and  20 north-east was approved by those present,  21 i.e. from head Surveyor Creek along head Treaty  22 Creek, east side Teigen, south side Snowbank Creek  23 on cross up east side of Bell-Irving etc."  24  25 That is essentially the same line that you traced for  26 his Lordship?  27 A   Yes.  28 Q   All right.  And then several pages over -- well, I  29 should say that Mr. Gunanoot then tells a story about  30 some areas, and the story winds up with a man coming  31 out of a cabin, and I'm now at the top of page what is  32 marked as 21:  33  34 "This man never came back to Oweegee and Skowill  35 had free access to east side Teigen Creek, south  36 side Snowbank Creek, and east side Bell-Irving to  37 9th cabin (Salmon River?)."  38  39 And then a note:  40  41 "Map Teigen was a German trapper and he registered  42 a trapline near Teigen creek in 1930 "s."  43  44 But wasn't Mr. Gunanoot telling a story of how a long  45 time ago his -- Mr. Skawill's access to this territory  46 was confirmed by a certain event?  47 A   Yes.  I think that's right. 8690  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 Q   And he's talking about this same territory or this  2 same piece of territory?  3 A   Yes.  4 Q   And there's nothing said there about trapping?  5 A   I don't -- I think there was some reference to  6 trapping, but Mat --  7 THE COURT:  It's on the previous page about the 6th line.  8 MR. GOLDIE:  9 Q   Well, yes, thank you.  10  11 "With regard to the Oweegee area, David says his  12 grandfather's uncle, who was also known as  13 Skawill, was very very old when he was out on the  14 trapline."  15  16 And he goes on:  17  18 "It was at this time (David thinks in the 1880's  19 maybe) that the Stikine people shot his  20 grandfather's uncle after which the Stikine people  21 "steppedback" i.e. relinquished land to Gitksan  22 for payment of bloodshed.  David says Daniel  23 Skawill spoke of this many times."  24  25 And then he goes on to discuss the shooting.  I amend  26 my suggestion to you that there was no mention of  27 trapping.  There was that reference which his Lordship  28 picked out.  Now, I'm going to suggest to you, Mr.  29 Sterritt, that it could not be with reference to the  30 trapline, because Mr. Gunanoot's -- the boundary of  31 his trapline is not Treaty Creek, but Treaty Creek is  32 in the centre of his trapline; is that not the case?  33 A   Yes.  Just about in the centre, I think that's pretty  34 close.  35 Q   Yeah.  So wouldn't that eliminate the suggestion that  36 Treaty Creek in some way is the boundary of the Land  37 Claim because in its true character it's related to  38 the trapline?  39 A   Not necessarily.  I recall a discussion with David  40 later when he -- when I asked him -- I asked him more  41 specifically about the trapline, and -- and about  42 Treaty Creek, and then we went out on a field trip a  43 couple of months before he died to that area, but I  44 did ask him about Treaty Creek and about his trapline  45 in that area with Jerry Gunanoot present, as I  46 remember, and through that process established that  47 the boundary was at Treaty Creek. 8691  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 Q   Well, there's one other thing that I want to draw your  2 attention to, and that is that Teigen Creek, which Mr.  3 Gunanoot states Mr. Skawill and subsequently himself  4 had free access to, is well north of his trapline  5 boundary, is it not?  6 A   I don't recall the exact trapline boundary, but it may  7 be.  8 Q   Certainly it's not your recollection that Teigen Creek  9 is a trapline boundary?  10 A   No.  11 Q   I'm going to suggest to you that it is not until  12 Snowbank Creek flows into the Bell-Irving that the  13 northern Land Claim boundary and the trapline  14 boundaries coincide?  15 A   I'm not sure about that in terms of the trapline, I  16 couldn't say.  17 Q   Just so that you're sure what I'm referring to, I'm  18 suggesting to you that it is not until the Snowbank,  19 which is coming down here, flows into the Bell-Irving  20 that there is a coincidence between the trapline  21 boundary and the Land Claims boundary?  22 A  Well, I'm not certain where the trapline goes, but  23 that may be.  24 Q   Now, you've referred to some conversations with Mr.  25 Gunanoot, but the only references we've been able to  26 find to the northern boundary in the notes of Mr.  27 Gunanoot is December the 2nd, 1986, and if you turn  2 8 over the next page under tab 15 you will find a memo  29 to file from Neil Sterritt re Boundaries, two areas:  30 The Duti River area, we're nowhere near that, are we?  31 A   No.  32 MR. GOLDIE:  Does your lordship have the page?  33 THE COURT:  Yes.  I think so.  34 MR. GOLDIE:  35 Q   What about the first one, Awiija area?  36 A   That's in the Bell-Irving area.  37 Q   I see, all right.  You record that:  38  39 "I met with David to talk about the above  40 boundaries.  In this regard David said that Mat  41 Teigen's trapline was at Salmon River and at  42 Snowbank Creek.  On further questioning David  43 believed Salmon River to flow into the Bell-Irving  44 about three to four miles above Hodder Creek.  He  45 said if you stand on the second Bell-Irving bridge  46 and look downstream you see the mountain at Salmon  47 River.  He said there are two ninth cabins.  One 8692  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 is at Salmon River and begins at Telegraph Creek.  2 The other is at Rochester Creek and begins on the  3 Kispiox River at Cullen Creek.  4 It appears that Salmon River is Teigen Creek, and  5 that where Teigen Creek enters the Bell-Irving is  6 where the Stikine told Skawill and others to  7 camp."  8  9 And over the page:  10  11 "David agrees it is up to Skiik'm lax ha as to the  12 proper boundaries at Treaty Creek and Bell-Irving  13 River."  14  15 Now, that suggests to me that somebody, possibly  16 yourself, had put the proposition to him that there  17 was a boundary at Treaty Creek and he was agreeing  18 that it was really Skiik'm lax ha, who was the head of  19 the house, to decide where the boundaries were on  20 Treaty Creek and Bell-Irving River, is that right?  21 A  Well, that's right.  He -- it is the territory of  22 Skiik'm lax ha.  He was there because he was the son  23 and it was up to them.  24 Q   But doesn't this indicate -- or let me ask you another  25 way.  There is no indication from a reading of what  2 6 I -- of this memorandum that Mr. Gunanoot had changed  27 his mind about the territory, is there?  28 A   He was -- he knew they had trapped up on the -- in the  29 Teigen Creek area and that his trapline went north of  30 Treaty Creek, but I don't recall just what it was that  31 he said in terms of that, but if he felt -- or he felt  32 that if it was -- if it was a matter for a change from  33 where the original map went in previously to there  34 that it was up to Skiik'm lax ha.  35 Q   And the idea was that the boundary should be on Treaty  36 Creek came from Skiik'm lax ha, did it not?  37 A   From the House -- from members of the -- of Skiik'm  38 lax ha.  39 Q   Yes.  But not from Mr. Gunanoot?  40 A   No, not necessarily.  41 Q   And indeed, Mr. Gunanoot, who was, as you stated, an  42 elderly man, was on the 9th of January, '87, you  43 record him as being unable to recall the name of  44 Treaty Creek.  That is under the next separator sheet,  4 5 my lord.  46 A   It was -- if I remember, it was when we went on the  47 field trip that he remembered the name of that creek. 3693  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1  Q  2  A  3  Q  4  A  5  Q  1  6  7  8  9  10  11  12  13  14  A  15  MR.  GOLDIE  16  THE  COURT:  17  18  MR.  GOLDIE  19  THE  COURT:  20  MR.  GOLDIE  21  THE  COURT:  22  A  23  THE  COURT:  24  MR.  GOLDIE  25  THE  COURT:  26  MR.  GOLDIE  27  28  29  THE  COURT:  30  MR.  GOLDIE  31  32  THE  COURT:  33  MR.  GOLDIE  34  THE  COURT:  35  MR.  GOLDIE  36  Q  37  38  A   '  39  MR.  GOLDIE  40  41  THE  COURT:  42  MR.  GOLDIE  43  THE  COURT:  44  MR.  GOLDIE  45  Q  46  47  And the field trip was when?  It was about a month or two before he died.  I see.  Are there any notes of that?  Yes.  I believe you have those.  My recollection, and I will check this, is that there  is a memorandum of a meeting with him immediately  before his death, but not of a field trip, but I'll  check that.  In any event, I suggest to you, Mr.  Sterritt, that the change of the boundary came as a  result of suggestions or as a result of meetings of  the House of Skiik'm lax ha, or what have you, made in  1987 or sometime immediately before the 1987, 2nd of  January.  Well, 2nd of December, 1986, I'm sorry.  That may have been, I don't recall.  :  All right.  I haven't got it clear in my mind what the change  was.  Was it to create that indentation in the --  :  Yes, my Lord.  Yes, all right.  :  It took that little peninsula.  Instead of going up -- is that Teigen Creek?  Yes.  Up towards Teigen Creek.  Instead it created that enclave?  :  That's correct.  Yes, all right.  :  Now, the next change, or a change which you then  referred to is identified as Pacific, and under tab  14, the transcript reference is again volume 124.  I'm sorry, this is a new subject, is it?  :  Well, it's -- it's taking the changes between maps  4 and 6 that he gave evidence on.  Yes, all right.  :  And I'm finished with Treaty Creek.  Yes.  The next one you said was Pacific?  Pacific, yes.  And the reference that I wish to refer  to is page 7621.  Which tab, I'm sorry?  :  Under tab 14, please.  And it's the last collection  of pages from the transcript.  Line 41.  What page?  :  7 621, my Lord.  Thank you.  "Q     All right.  Mr. Sterritt, there is a change  at a site on the Skeena River known as  Pacific? 8694  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 A     Yes."  2  3 And then you were asked to indicate the nature of the  4 change.  Perhaps, Mr. Sterritt, if you wouldn't mind  5 stepping over to the overlay and just indicate the  6 geographic area that we're dealing with?  7 A   Right.  Here's Terrace right here, and up the Skeena  8 to where you meet the boundary, the southern  9 south-west boundary of the territory, there's a  10 railroad station there called Pacific.  11 Q   And you say at page 7622, line 8:  12  13 "A The change represents a change of reduction  14 in the area of the overall territory and it  15 is the yellow, the March 1987 boundary runs  16 along the height of land and down, then down  17 to a lake and a creek and then to the  18 Skeena.  That's as a result of more detailed  19 discussions with Stanley Williams, but also  20 an aunt of mine, Edith McDougall, Wii Lixs  21 Akasp."  22  23 A   That's wrongs there, I'll spell it all correctly.  24 W-I-I space L-I-X-S space H-A-S-T.  25 THE COURT:  L-I-X-S H-A-S-T is what should be there?  26 MR. GOLDIE:  27 Q   The reporter unfortunately even got the spelling of it  28 wrong.  Now, the concern that I have, Mr. Sterritt, is  29 that when we turn to the reports of your interviews  30 with your aunt that we were provided we cannot find a  31 clear indication of what you've discussed there, but  32 as we read it, on the contrary, as she is claiming  33 territory right down to Legate Creek.  Now,  34 L-e-g-a-t-e, that creek has never been claimed by  35 the -- by anybody who's in the present action, is that  36 right?  37 A   No.  You misunderstand what I said and what she's  38 saying.  Her father was a man by the name of Joe  39 Brown.  His Indian name is Gwiiyeehl,  40 G-W-I-I-Y-E-E-H-L.  Gwiiyeehl lived at one time at  41 Kitselas with his very close relative, Niista Huuk,  42 N-i-i-s-t-a space H-u-u-k.  Gwiiyeehl was down here  43 because of his close relationship with Niista Huuk,  44 who was Fireweed, and it was considered -- he was  45 considered to have rights and in a sense to even own  46 the area, but not as a Kispiox chief but because he  47 had once been at Kitselas, so she is clarifying that 3695  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1  2  3  4  5  6  Q  7  8  A  9  Q  10  A  11  MR.  GOLDIE  12  13  14  15  16  THE  COURT:  17  MR.  GOLDIE  18  19  20  THE  COURT:  21  MR.  GOLDIE  22  THE  COURT:  23  THE  COURT:  24  MR.  GOLDIE  25  Q  26  27  28  A  29  Q  30  A  31  Q  32  33  34  A  35  Q  36  A  37  Q  38  A  39  Q  40  A  41  42  Q  43  A  44  45  1  46  Q  47  Pacific itself is Kitselas and that Legate Creek is  Kitselas territory, and then used to go down there  every year because of this close relationship, but  then land is not being claimed by hereditary chiefs  from Kispiox.  Yeah.  Well, that was my question to you.  It's not  the subject of a claim in this action?  No, that's right.  All right.  And she never said that it was Kispiox territory.  :  Well, I would ask you to turn, please, to what I'm  instructed is a memorandum of meetings that you had  with her, I'm not sure what the date is, but it's  under tab 15, and my lord, it is the second to last  white sheet from the end.  Looks like 75.  :  I'm instructed that the interview was on January  the 16th, 1986 and that what I've directed you to is  the second page of that, and --  Is that a page number -- is that 000075?  :  That's put on there by us, my lord.  Yes.  It's a 7, is it?  Yes.  Over on the left-hand side at the bottom of what  looks like the first column, that's what she -- what  you've just related to us?  You're on the one that has 000075?  Yes, that's correct.  Yes.  And she's saying that something Brown, is that --  is -- that's her father's Indian name?  N-A-A  apostrophe A-S?  Oh, down on the left-hand side?  Yes.  That's William Brown.  I see.  That's William Brown, Naa'as.  And he's Kitselas?  He was -- I think that William Brown was the -- he was  closely related to Edith's father.  Yes.  I'm not sure whether he was Kitselas or not, Naa'as, I  think Naa'as, William Naa'as, he may have been, I  don't recall.  All right.  Well, at any rate, your aunt is telling  you that he has a hunting ground at Pacific and that 8696  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 that hunting ground's name is X-Z-I-N-A-G-W-O-O-D?  2 A   Yes.  3 Q   And he says that she says that William Brown is  4 closely related to her father, and that he has two  5 sons, Peter Brown and Alfred Brown.  Does that accord  6 with your recollection of this discussion?  7 A   Yes.  8 Q   And then on the upper right-hand side she says Joseph  9 Brown, Nathan Brown, Amos Brown are Gisgaast from  10 somebody's home or house?  11 A   House, that's, Xantw, X-a-n-t-w, Xantw, and Gwiiyeehl  12 G-w-i-i-y-e-e-h-1, are side by side.  13 Q   Yes.  And are they Kitselas houses?  14 A   No.  They're Kispiox, and they have a migration  15 history coming from Kitselas.  16 Q   Yes.  Well, she says "We lived at Pacific", giving the  17 Indian name for it?  18 A   That's right.  19 Q   That accords with your recollection?  20 A   Yes.  21 Q   Now, that's -- the next entry is for the 25th of  22 August, 1986.  And there's a genealogy over on the  23 left-hand side, William Brown again with his two sons,  24 Peter Brown and Alfred Brown, and then on the  25 right-hand side you have as an entry:  26  27 "Informant, Edith McDougall, Joseph Brown's  28 trapline, that's my dad's land."  29  30 Then the Indian name for Pacific?  31 A   No, not Pacific.  32 Q   I thought —  33 A   Indian name for Legate Creek.  I'm sorry if --  34 THE COURT:  That's called the hunting ground?  35 A   Yes.  It's generally called that as the hunting  36 ground, but the creek, Legate Creek, is Xsinagwoodq,  37 X-S-I-N-A-G-W-O-O-D-Q, as it's spelled on that page.  38 MR. GOLDIE:  39 Q   Yeah.  Well, but that's what she characterized as the  40 hunting ground when you talked to her earlier in the  41 year?  42 A   Yes.  43 Q   Yes, all right.  But you say she was mistaken?  44 A   No.  You just said that it was Pacific.  45 Q   Well —  46 A   Pacific isn't Xzinagwoodq.  47 Q   All right. 8697  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 A   But the area is also generally referred to as  2 Xzinagwoodq, the Legate Creek area and the area that  3 they went to.  4 Q   All right, I accept that.  But Mrs. McDougall states  5 that William Brown has a hunting ground at Pacific?  6 A   Yes.  7 Q   And then four lines below that:  8  9 "This hunting ground's name is Xzinagwoodq."  10  11 A   Yes.  12 Q   Well, is she right or is she wrong in characterizing  13 the name of the Pacific hunting ground with that word?  14 A   Yes.  All I was objecting to was calling Pacific  15 itself Xzinagwoodq.  I just wanted you to find that --  16 I think we were at cross-purposes.  17 Q   When I say that's Pacific, I'm talking about the  18 hunting ground.  19 A   Right.  20 Q   All right.  The meet -- the interview you had with her  21 in August of '86, she says:  22  23 "William Brown used it for a long time after my  24 father died.  He didn't leave it to the right  25 people.  He left it to his son Peter Brown.  It's  26 up to Chris Skulah and Jackie Williams, they  27 should own it."  28  29 Those two of course are plaintiffs in this action, are  30 they not?  31 A   Yes, they are.  32 Q   Is she saying that that territory belongs to them?  33 A   I -- she is in terms of their relationship with  34 Kitselas.  They have rights and privileges to go  35 there, but it is Kitselas territory, not Gitksan  36 territory.  37 Q   Well, she's not agreeing with that, is she?  She's  38 saying it belongs to people who are plaintiffs in this  39 case.  I don't mean she's identifying them as  40 plaintiffs, but I mean she's identifying people who  41 are plaintiffs, and she says the territory belongs to  42 them?  43 A  Well, it is -- that's how it appears here, but it is  44 Kitselas territory, they are related, they're closely  45 related, and -- but it is not Gitksan territory, but  46 they do have rights to go there.  47 Q   But it was you who decided or came to the conclusion 369?  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 that it was not Gitksan territory, not Mrs. McDougall?  2 A   No.  That's not true.  There's other information.  The  3 boundary, other people have pointed out the boundary  4 along what is known as Hakhl Yee, H-A-K-H-L space  5 Y-E-E.  That's the mountain just on the north side of  6 Legate Creek, and the boundary runs along there, and  7 there was a meeting I think in 1976 where that was  8 discussed as well, that the uncertainty about Legate  9 Creek, but I think in that meeting Jessie Sterritt was  10 there and she pointed out that it should be Kitselas.  11 It's not --no.  It's not something that I was  12 pointing out.  13 MR. GOLDIE:  I see.  Well, my lord, I have a few more questions  14 on this, but this might be a convenient time.  15 THE COURT:  All right, thank you.  Ten o'clock.  16 THE REGISTRAR:  Order in court.  Court will adjourn until 10:00  17 a.m.  18  19 (PROCEEDINGS ADJOURNED)  20  21 I hereby certify the foregoing to be  22 a true and accurate transcript of the  23 proceedings herein transcribed to the  24 best of my skill and ability  25  26  27  28  29 Graham D. Parker  30 Official Reporter  31 United Reporting Service Ltd.  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47


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