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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1988-10-25] British Columbia. Supreme Court Oct 25, 1988

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 3943  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  October 25, 1988  VANCOUVER, B.C.  THE REGISTRAR: Order in court.  In the Supreme Court of British  Columbia, Vancouver, this Tuesday, October 25, 1988,  in the matter of Delgamuukw versus Her Majesty the  Queen at bar.  I caution the witness you're still under oath.  THE WITNESS:   Okay.  THE COURT:  Goldie.  MR. GOLDIE:  My lord.  My lord, I've just been handed a copy of  a letter that's addressed to my colleague Mr. Willms,  and in it Mr. Grant states that he anticipates Mr.  Chilton's evidence would be completed on the afternoon  of Wednesday, October 26th.  I take it from that that  Mr. Chilton will precede Mr. Gottesfeld.  I wonder if  my friend's in a position to assist me in that regard?  MR. RUSH:  That was based on the assumption that we were through  yesterday.  COURT:  I see.  RUSH:  We were going on the assumption that we would have  been through yesterday and that Mr. Mathewes would  start this morning, Mr. Gottesfeld and Mr. Chilton.  That's the order.  GOLDIE:  Mr. Gottesfeld will in fact precede Mr. Chilton  though, will he?  RUSH:  Yes.  GOLDIE:  That's the concern that we have.  COURT:  Thank you.  RUSH:  This is all assuming that we can fit everything in.  COURT:  And that we do finish with Mr. Sterritt sometime.  RUSH:  Sometime.  WITNESS:   Some day.  THE  MR.  MR.  MR.  MR.  THE  MR.  THE  MR.  THE  CROSS-EXAMINATION CONT. BY MR. GOLDIE:  Q   Do you have before you, Mr. Sterritt, the blue binder  that we were dealing with yesterday?  Yes, I do.  At tab 17 the next sheet has got a stamp number 31  which we placed on that and it's dated March 1st,  1976.  Would you turn to that, please?  Yes, that's where I'm at.  And the Peter Williams that is there referred to is  the president of the Kitwancool?  Yes.  And this records a discussion you had with him to  attempt to resolve the Nishga matter one more time?  A  Q  A  Q  A  Q 8944  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 A   Yes.  Well, actually to establish communications with  2 them.  3 Q   Yes.  Well, it suggests that there had been a  4 communication prior to this, does it not?  5 A   Yes, and it's suggesting another one.  6 Q   Yes.  That's what I meant.  And indeed there were  7 attempts made after that?  8 A   Yes.  9 Q   The next one has got in the upper right-hand corner  10 "James Morrison, David Green, Neil Sterritt".  Is the  11 date June or January the 4th, 1979?  12 A   I think that's January.  13 Q   And the notation to the left "all entered", indicates  14 that the information on here has been transmitted to  15 the topographic or data sheets?  16 A   Yes, I think that would refer to the data sheets.  17 Q   All right.  These were prepared for Mr. Marvin  18 George's use?  19 A  Well, this was done in 1978.  That would have been my  2 0 own entry at that time well in advance of Marvin  21 George.  22 Q   I'm not -- yes, I understand that.  The entry though  23 is for the purposes of the cartographer, whether it's  24 you or whether it's Marvin George?  25 A  At that point, yes, it's for my -- it would be for my  26 use.  27 Q   And this is information that was given you by these  28 three gentlemen -- I'm sorry, by these two, James  29 Morrison and David Green?  30 A   Yes.  31 Q   And item number 5 refers to Chipmunk Creek?  32 A   Yes.  33 Q   And it records that it is Waiget's north boundary?  34 A   Yes, which is later clarified by James and by Sam.  35 Q   It is not the boundary now of Waiget?  36 A   I'll have to check the map.  I think it is.  37 Q   Well, let me put this to you:  Miluulak is on the  38 north of Chipmunk Creek now, is it not?  39 A   It is the boundary, Chipmunk Creek, and Xsem  40 gitiigeemix is now Robert Jackson in the house of  41 Miluulak.  It's the same person.  42 THE COURT:  Can you spell that please for madam reporter?  43 THE WITNESS:   Xsem gitiigeemix?  4 4    THE COURT:  Yes.  45    THE WITNESS:   Here it's spelled X-s-e-m g-i-t-i-i-g-e-e-m-i-x.  4 6 And that's -- he's frog.  47    MR. GOLDIE: 8945  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 Q   Well, Miluulak is on the north?  2 A   That's what that is saying there is that Waiget's --  3 that creek is Waiget's north boundary and it should --  4 I put south side there, but it should refer to Xsem  5 gitiigeemix's south boundary.  6 Q   Yes.  7 A   That's what that creek is.  8 Q   So Miluulak is on the north?  9 A   Yes.  10 Q   Yes.  All right.  Over the page is 41, Cut Foot Creek.  11 Is that entry to indicate that Cut Foot Creek is part  12 of the territory of Wii Minosik?  13 A   Yes, and I'd have to check that one as well, but in  14 terms of Cut Foot Creek what they're referring to  15 there is that that was Wii Minosik's territory.  Wii  16 Minosik was the father of Ax Moogasxw.  Ax Moogasxw is  17 in the house of Wii Gaak.  Ax Moogasxw is A-x space  18 M-o-o-g-a-s-x-w.  And that ended up, because of that  19 relationship, ended up becoming the territory of Wii  20 Gaak, W-i-i G-a-a-k, and that's what they're talking  21 about here.  And that territory is within the  22 territory now of Wii Gaak.  23 Q   Yes.  But at that time you were recording information  24 to the effect that it was in the territory of Wii  25 Minosik, weren't you?  26 A   It was -- they were referring to Wii Minosik -- well,  27 actually Tommy Wii Minosik is what they were referring  28 to and Tommy Wii Minosik is Ax Moogasxw.  29 Q   Mr. Sterritt, do you deny that you were recording  30 information from your informants at that time that Cut  31 Foot Creek was in the territory of Wii Minosik?  32 A  Well, I'm clarifying what the situation is.  33 Q   I know what the situation is now.  I'm asking you to  34 confirm for me that you recorded on January the 4th,  35 1979, that Cut Foot Creek was in the territory of Wii  36 Minosik?  37 A   Yes, that's what I recorded, but that wasn't the  38 situation.  It was more complicated than that, and I  39 didn't pick that up from that conversation.  40 Q   Right.  And then on the next page, that's with the  41 stamp 42 on it, the first entry refers to Barker  42 Creek?  43 A   Yes.  44 Q   And does that indicate that Barker Creek, according to  45 your informants, was in the territory of Muut?  46 A   Yes, and that is a mistake on my part.  Muut in  47 fact -- well, the name Xsi Luu Maa Seexsit, there it's 8946  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 spelled X-s-u L-u-m-a s-e-e-x-i-t in fact is a creek  2 farther to the east that empties north into the Duti  3 River, D-u-t-i, and I -- this is a mistake that I made  4 here.  5 Q   Yes?  6 A  Muut is not in this area and until I sat down with  7 Martha Sinclair, Martha Himadim, H-i-m-a-d-i-m, it  8 wasn't -- that's where it was clarified for me.  This  9 is a misunderstanding that I had for sometime.  10 Q   Right.  Is not the English name of Xsi Luu Maa  11 Seexsit, Malloch Creek?  12 A   Yes.  13 Q   Yes.  14 A   Yes, that's right.  M-a-1-l-o-c-h.  15 Q   Number 11, Ground Hog Mountain, territory of Himadim,  16 Lax Gibuu, Kisegas, is that what you recorded as  17 coming from your informants at that time?  18 A   Yes, I did, but that's wrong.  19 Q   Yes.  And the next page, Squinqulaa, this is number 14  20 on that page, my lord, Squinqulaa you record as in the  21 territory of Xsim Sxan?  22 A   Yes, I did, and that was later clarified.  My father  23 talked to Martha Himadim and a number of people and  24 clarified that Xsim Sxan, X-s-i-m S-x-a-n, was in  25 there by marriage to a member of the house of Wii  26 Gaak, W-i-i space G-a-a-k.  27 Q   And it is now recorded in your latest map as in the  28 territory of Wii Gaak?  29 A   Yes, on 9 A.  30 Q   Over the page, there is a drawing and that's -- the  31 date is July 6th to 9th, 1979?  32 A   Yes.  33 Q   And then following that is another page which is  34 stamped page 68 that I don't have any --  35 A   Yes.  This is part of a number of notes with a meeting  36 with Henry Wright in 1979 where I did that sketch and  37 also these notes.  38 Q   Would you read out, please, the first two lines on  39 that?  40 A   That's "Dam Similoo".  41 Q   Yes.  42 A   That's D-a-m space S-i-m-i-1-o-o.  43 Q   Yes.  44 A  And then brackets Dam Sumlo Lake, D-a-m S-u-m-1-o, and  45 then Lax Gibuu, Nii Kyap.  And this is consistent with  46 the information of David Gunanoot when he described  47 his migration from Gitangas down to Old Kuldo and then 8947  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 east up over the mountains near Tommy Jack Mountain to  2 this lake and then on down to Kisegas and where James  3 Morrison talked about that same area, but James  4 Morrison's grandfather or Waiget, W-a-i-g-e-t, Simon  5 Morrison's father, was from the house of Nii Kyap and  6 when he died then this area, this lake, ended up going  7 to Waiget because of the funeral expenses.  Here  8 it's -- he's talking about it as being Nii Kyap, but  9 it was more complicated than that and was described by  10 James Morrison and possibly Sam too, but I'm not sure.  11 Q   In any event, it is now claimed by Wiigyet?  12 A   Yes.  13 Q   Would you spell that, please?  14 A  Wiigyet?  15 Q   Yes.  16 A  W-i-i-g-y-e-t.  17 Q   Thank you.  Tab 18.  The first page, which is stamped  18 number 3 there, is dated January 21st, 1976, and  19 that's your writing and records references that you  2 0 made while you were examining Department of Indian  21 Affairs files?  22 A   Yes, it's sort of a chronology.  23 Q   Yes.  Over the page to page number 4, this too is in  24 your handwriting is it?  25 A   Yes.  26 Q   And it records information you obtained from Richard  27 Benson?  28 A   Yes.  He's given the place names of territories of  29 Kuldo, K-u-1-d-o, that's in the Nass River, along the  30 Nass River near Gwinagiisdxw too.  31 Q   And on the next page this continues information given  32 you by Richard Benson?  33 A   Yes, that's a different area.  34 Q   When you say that's a different area, to what are you  35 referring to?  36 A  Well, I'll spell that name that the reporter needed  37 here, G-w-i-n-a-g-i-i-s-d-x-w.  38 Q   Excuse me, that is Gwinagiisdxw River, is it not?  39 A   Yes.  40 Q   And the English name or adaptation of it being  41 K-w-i-n-a-g-e-e-s-e?  42 A   Yes.  43 Q   Thank you.  44 A   Page -- while it's headed number 6 up there is an area  45 on the east side of the Skeena about 20 miles north of  46 Hazelton.  47 Q   Right.  And then you go down the page and the third 8948  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 entry from the bottom "Rufus Good and Abel Oakes used  2 to fight over Kwinageese River"?  3 A   Yes.  4 Q   We're back at the Gwinagiisdxw now?  5 A   Yes, except that they weren't -- they're -- they  6 weren't discussing Gwinagiisdxw actually, it turns out  7 that it was the Magan Giis area, M-a-g-a-n space  8 G-i-i-s, which was referred to yesterday in those --  9 well, somewhere in here in those notes.  I don't know  10 if I remember which tab.  It would be the same area  11 that was referred to under tab -- oh, here it is under  12 tab 14.  13 Q   Yes.  14 A   That's the area that he was referring to.  15 Q   And the next two entries deal with the same thing?  16 A   I -- no.  No, I don't think so.  He's generally  17 referring to saying that the Kitwancool do not go  18 beyond the junction of the Nass River and the  19 Bell-Irving, which is consistent with the information  20 that others have given later.  In what you referred to  21 yesterday in terms of the trap line of Solomon  22 Marsden, number 0615T029, that's what Richard is  23 referring to here.  24 Q   Yes, that's what I'm talking about.  And Djogaslee,  25 which is now Walter Wilson, used to trap in mountains  26 northeast of the Nass River and Bell-Irving junction?  27 A   Yes, and that's consistent with Walter Wilson's  28 information, who's Djogaslee, D-j-o-g-a-s-l-e-e.  29 THE COURT:  What does it mean when it says "Do not trap  30 beyond.", they don't go --  31 THE WITNESS:   They don't go into — well, the Bell-Irving  32 River, we went by that junction when we did our  33 flight.  34 THE COURT:  Yes.  35 THE WITNESS:   And he is saying that the Kitwancool do not go  36 in --  37 THE COURT:  They don't go north of that junction?  38 THE WITNESS:   That's right.  And what we're talking about here  39 is the Bell-Irving River.  This is the Nass River.  40 And they don't go in this area is what he's saying.  41 MR. GOLDIE:  42 Q   And would you point out the area that Djogaslee traps  43 in as recorded in -- as recorded by Mr. Benson?  44 A   He's talking about Djogaslee being in this area; that  45 he is in that area.  46 Q   And beyond what is now the present boundary line?  47 A   No.  No.  He's speaking generally.  This is the 8949  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 boundary line of Djogaslee now and he's talking about  2 that area.  3 Q   He's talking about the mountains northeast of the  4 junction?  5 A   These mountains.  These are the mountains here.  He's  6 not saying that he goes well beyond, he's just  7 speaking generally.  8 Q   I'm not talking about well beyond, I'm talking about  9 and to the west.  10 A   Oh, no.  11 Q   Those mountains extend to the west, do they not?  12 A   No, they don't.  They're right there.  This is the  13 Bell-Irving here.  This is the Nass.  And he's talking  14 about the mountains northeast of that junction.  15 MR. GOLDIE:   All right.  Thank you.  16 THE COURT: I'm sorry, Mr. Goldie, there was another house or  17 chief that had a name similar to Djogaslee that  18 started with a "D", is that somebody different?  19 THE WITNESS:  That's the same person.  2 0 THE COURT:  Way down south on the Skeena or is that the same  21 person?  22 THE WITNESS:   It's the same person.  He's right here.  23 THE COURT:  Yes.  And this J-o-g-o-s-l-e-e is just misspelled is  24 it?  25 THE WITNESS:   Yes, it's the same hereditary chief, different  26 spelling.  27 THE COURT:  What was the other — the proper spelling?  28 THE WITNESS:   D-j-o-g-a-s-l-e-e.  29 MR. GOLDIE:  Would you look at the next page, please?  This is  30 page stamped number 9.  We assume the date is --  31 THE COURT:  My next page is number 10 — I'm — oh, I'm sorry  32 it's —  33 MR. GOLDIE:  34 Q   It's 10 at the top and stamped 9 at the bottom.  35 Are you in a position to say -- give us any  36 indication of the date of this?  37 A   Yes, I think that would be in 1976.  38 Q   Right.  39 A   Right in that period.  4 0 Q   And when you have recorded this information  41 "Toodoggone = belongs to relative of Himadim", you're  42 talking about a creek of that name?  43 A   Toodoggone is a lake north of Thutade Lake.  44 Q   Yes.  45 A   Toodoggone is spelled T-o-o-d-o-g-g-o-n-e.  46 Q   Is there not a creek by the same name?  47 A   There could be, yes. 8950  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 Q   And it is well outside the land claim area?  2 A   Yes.  I don't see it on here at all, so yes.  3 MR. RUSH:  Is that yes to the lake or yes to the river or creek?  4 THE WITNESS:   Yes that Toodoggone is well outside the land  5 claims area.  I've been told by other people that  6 Himadim had relatives out in that area as well.  7 That's H-i-m-a-d-i-m.  8 MR. GOLDIE:  9 Q   Then the next page is dated April 16th, 1987 and  10 stamped page 69.  This is information from Stanley  11 Williams as of that date?  12 A   Yes.  13 Q   And the third item, David Wells gave Xsi Gallii Gadzit  14 to Guuxsan's house about 1960?  15 A   Yes.  16 Q   Isn't it Mr. Williams' position now that Xsi Gallii  17 Gadzit is still eagle?  18 A   Yes.  I don't know whether that was for the life of  19 Walter Wesley's brother or not, and -- like Walter  20 Wesley was shot.  This all happened in 1960.  Walter  21 Wesley was shot.  David Wells, who was the head of the  22 eagles at that time, turned that area over to Walter  23 Wesley's brother A Xsiixsw, X-s-i-i-x-s-w, and I  24 believe when the brother died then it was to come  25 back.  26 Q   The peace settlement could have a variety of terms  27 then, either permanent transfer or temporary transfer?  28 A   Yes.  29 Q   The next item is dated 25th of March '88 and this is  30 information recorded from you by David Green, or by  31 you from David Green?  32 A   Yes.  33 Q   And the next page is 161.  This would still be  34 information from David Green?  35 A   Yes, it is.  36 Q   And it was he who told you that Johnathan Brown sold  37 Albert Brown's territory to Art Loring for a hundred  38 dollars?  39 A   Yes.  40 Q   That's the last item on the page?  41 A   Yes.  I don't know whether that hundred dollars is  42 accurate, but that's what he told me.  43 Q   Yes.  Next item is February 5th, 1988, and this  44 records an interview with Mr. David Green in the  45 hospital on that date?  46 A   Yes.  47 Q   Thank you.  172, we have some difficulty in making 8951  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 this out, but about a third of the way down the  2 page -- well, first, Wagil Wii, who or what is that,  3 please?  4 A   That's the name of David Green, his Indian name.  5 Q   Yes.  So he is the informant with respect to this on  6 this page?  7 A   Yes, he is.  8 Q   The third item under that name, it begins with "Paul",  9 can you read that for me, please?  10 A   "Paul Djiiwus,D-j-i-i-w-u-s.  He's from the house of  11 Tsabux.  12 Q   Yes.  T-s-a-b-u-x?  13 A   Yes.  14 Q   Yes.  All right.  And what is the rest of it?  15 A  Well, Luu Skadakwit, L-u-u space S-k-a-d-a-k-w-i-t,  16 and Luu Lax Loobit, L-u-u space L-a-x space  17 L-o-o-b-i-t.  18 Q   Now, those are place names are they?  19 A   Yes.  20 Q   And all creeks?  21 A   Yes.  22 Q   The first being Sperry Creek?  23 A   I think it is.  Luu Skadakwit and Luu Lax Loobit, I  24 can't remember which is which right now.  25 Q   All right.  And one is -- whichever they are, one is  26 Sperry Creek and the other is Rosenthal Creek?  27 A   Yes.  2 8 Q   All right.  Thank you.  And over the page.  29 A  What he's doing is listing the names there, but he's  30 talking about Luu Skadakwit with Paul Djiiwus and then  31 listing the names, not that they're necessarily Paul  32 Djiiwus, but that Luu Skadakwit would be.  33 Q   I'm sorry, I didn't follow you.  34 A   He says Paul Djiiwus is Luu Skadakwit.  35 Q   Yes.  36 A   He also lists other names.  I can't remember just the  37 context of how they go there.  38 Q   Well, when you say "Paul Djiiwus is", and then give a  39 creek.  Doesn't he mean that's his territory?  40 A   Yes.  41 Q   Same thing with the next two?  42 A   I'm not sure if -- well, I know Luu Skaiyansit isn't  43 for sure and Luu Lax Loobit, I think he's just listing  44 them.  I'm asking him about different names.  I'm not  45 sure that he's saying -- well, the first one is, but  46 whether he's saying the other two are or not, I'm not  47 sure. 8952  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 Q   All right.  Next page is stamped 191.  This is a  2 continuation of a series of entries.  It's all your  3 handwriting is it?  4 A   Yes, it is.  5 Q   Thank you.  And same thing with the next page?  6 A   Yes.  7 Q   And then the next entry is February 11th, 1988, and  8 this refers to a conversation with Solomon Jack?  9 A   Yes.  10 Q   Now, at the last paragraph you record "Sol asked Percy  11 Sterritt."  Was Percy Sterritt present at this time?  12 A   No, he had seen Percy somewhere else.  13 Q   I see.  He would be -- he was unsure then of where  14 this -- where this creek was?  15 A   No, he knew exactly where the creek was.  He couldn't  16 recall the name, and so he talked to Percy to see if  17 Percy could remember, and Percy told him and that --  18 well, that's what he was doing was trying to recall  19 the name of a particular creek.  20 Q   Yes.  So when you say "Sol asked Percy Sterritt if he  21 knew this creek", you didn't really mean that?  22 A  Well, Sol could have asked him if he knew it. I mean,  23 there's no difficulty with that, but the -- in the  24 context, Solomon was trying to remember the name of it  25 and he -- I had asked him several times because it's a  26 creek -- it's a trail that they went up many many  27 times from Gitangas where they had a camp, that's  28 G-i-t-a-n-g-a-s, on their way to Tommy Jack Creek, and  29 Sol just couldn't -- just couldn't remember it.  He  30 knew that Percy hadn't necessarily gone over it, but  31 that he had walked by it many times on his way to the  32 trap line with my grandfather in the 30's to the  33 hunting ground and so he thought Percy might know and  34 so he asked him.  35 THE COURT:  Could you remind me where Gitangas is?  That's the  36 wild rice?  37 THE WITNESS:   That's the one.  3 8 THE COURT:  Yes.  39 THE WITNESS:   It's right in this area.  40 THE COURT:  Near Slamgeesh?  41 THE WITNESS:   Yes, Slamgeesh is right there.  42 THE COURT:  Yes.  And Gisgegas is further south?  43 THE WITNESS:   Right there.  So here's Gitangas in this area.  4 4 THE COURT:  Yes.  45 THE WITNESS:   And the trail that they used is going up this  46 creek right here just below Gitangas going south and  47 then on up and up Tommy Jack Creek this way and down 8953  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 to Gisgegas here.  2 THE COURT:  Am I correct in believing that when we were on the  3 view, that we flew past Gitangas?  4 THE WITNESS:   We flew right beside it and pointed it out on the  5 right-hand side of the helicopter.  6 THE COURT:   Yes.  And then carried on to Gisgegas on the way  7 back.  8 THE WITNESS:   Yes. That's right.  9 THE COURT:  Thank you.  10 MR. GOLDIE:  11 Q   The next page is -- that's your handwriting that  12 states it's undated at the top?  13 A   Yes.  14 Q   And then down below there is a note November 30th,  15 1987.  Is that the date of the note?  16 A   Yes.  17 Q   And it is correcting the previous entry or enlarging  18 upon it?  19 A   Yes, but it was the interview or the discussion with  20 Martha Himadim, which I sorted that out, which I  21 realized that I was in the -- that I had moved in the  22 wrong area.  23 MR. GOLDIE:   All right.  Thank you.  24 THE COURT:  Mr. Sterritt, one other thing.  On what river is  25 Gisgegas?  26 THE WITNESS:   On the Babine River.  27 THE COURT:  Babine.  28 THE WITNESS:    It flows out of — almost north and then west  29 out of Babine Lake.  30 THE COURT:  Yes.  Thank you.  31 MR. GOLDIE:  32 Q   The next page is dated 18th of January '87.  33 A   Yes.  34 Q   And this is an interview with Albert Tait?  35 A   Yes.  36 Q   And midway down the page McCully Creek used to be  37 Yagosip?  38 A   Yes.  39 Q   And it is now Kliiyem Lax Haa is it?  40 A   Yes, and that Yagosip, Yagosip is near McCully Creek,  41 but not on McCully Creek.  42 Q   The last line is also recording information given you  43 by Mr. Tait?  44 A   Yes.  45 Q   Over the page is recording a phone call of Percy  46 Sterritt in 1984?  47 A   Yes.  This is where he refers to that big tree at the 8954  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 end of a swamp that has -- well, he described it just  2 like Chinese writing and when he went back to camp,  3 him and his cousin went back to camp, his uncle told  4 him that he was -- he was mad at them and said that  5 they're not to go past there because it wasn't their  6 territory, and also Walter Blackwater independently  7 advised me that he had been at that -- him and Sam  8 Holme had gone to that same tree and when they  9 returned they were told the same thing, that they  10 shouldn't go past there.  11 Q   And the last entry is also provided you by Mr. Percy  12 Sterritt?  13 A   Yes, last entry on --  14 Q   On the first page mid-river belonging to C. Sampson?  15 A   Yes.  16 Q   All right.  Thank you.  17 AC. Sampson is --  18 Q   Charlie Sampson?  19 A   Niist.  Yes.  20 MR. GOLDIE:   Tab 19.  These are records of interviews on the  21 dates shown, namely the first one, Pete Muldoe, is  22 September 2nd, 1987.  23 MR. RUSH:  Excuse me —  24 MR. GOLDIE:  It's under Tab 19.  2 5 THE COURT:  Yes.  26 MR. RUSH:  Thank you.  27 THE WITNESS:   Pete is talking about how he prepares himself for  28 anything --  29 MR. GOLDIE:  30 Q   I'm not asking you any questions with respect to it,  31 I'm just asking you to identify it.  32 A   Yes, that's Pete Muldoe.  33 Q   Yes.  Thank you.  And is all of this on the subsequent  34 page also Pete Muldoe?  35 A   Yes.  36 Q   Now, midway down the right-hand column on page -- on  37 the last page there it says "Abel told him to go  38 ahead."  What Abel is that, please?  39 A   That's Luus, Abel Tait, L-u-u-s.  40 Q   Thank you.  Tab 20.  The page there is May 9th, 1979,  41 is that, or 7?  42 A   That looks like 7.  43 THE COURT:  I'm sorry, Mr. Goldie.  44 MR. GOLDIE:  Under tab 20, my lord.  45 THE COURT:  I don't have anything until after the first blue  46 separator.  47 MR. GOLDIE:  Yes, that's correct.  There's the — there's a page 8955  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 that reads "Looseleaf notes of NJS - received  2 September 7th".  3 THE COURT:  Yes.  4 MR. GOLDIE:  And then there's a blue page.  5 THE COURT:  All right.  Thank you.  6 MR. GOLDIE:  And then there's a single page which has in the  7 upper right-hand corner -- it's May 9th, 1977.  8 THE COURT:  Yes.  9 MR. GOLDIE:  10 Q   Is that your understanding, Mr. Sterritt?  11 A   Yes.  12 Q   And your informant there was Henry Wilson?  13 A   Yes.  14 Q   And then over on the left you have on the margin "All  15 entered on data sheets May 9th, 1979".  Do you --  16 would that not suggest to you that the interview was  17 1979?  18 A   Oh, maybe it is.  That looks like a "7", but it could  19 well be.  Yes.  20 Q   All right.  Thank you.  And it was Mr. Wilson who told  21 you in the first entry with respect to Legate Creek  22 that "Gitksan on north side, Tshimshiam on south  23 side"?  24 A   Yes.  25 Q   Thank you.  The next sheet is a typed script.  This is  26 a typed script of an interview you had on November 6th  27 with George Milton?  28 A   Yes.  29 MR. GOLDIE:   And that's fine.  Thank you.  And then the next —  30 THE COURT:  What do you make of this statement at about the  31 tenth line that Gisk'aast is grouse tribe. What does  32 that mean?  33 THE WITNESS:   That's — some people do call the — well,  34 Gisk'aast actually, if you break -- that's Gisk'aast.  35 If you break that down, the last part is k-a-a-s-t,  36 k-a-a-s-t, which is fireweed, so generally the  37 Gisk'aast are fireweed.  That's the broadest.  There  38 are some who have the crest within the Gisk'aast of  39 the killer whale, and they would refer to themselves  40 sometimes as the killer whale.  There are others who  41 have as a main crest, within the fireweed, of the  42 grouse and they call themselves the grouse tribe, so  43 it's -- there are a number of crests within the  44 Gisk'aast which they would identify themselves with.  45 That's what that is.  4 6 THE COURT:  Thank you.  47 MR. GOLDIE: 3956  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  MR.  MR.  MR.  Q Lax Behlit is the name of a hunting ground":  A Lax Behlit, that's L-a-x space B-e-h-1-i-t.  Q Who claims that today?  A Gasgabaxs, that's G-a-s-g-a-b-a-x-s.  Q That's eagle is it?  A No, that's frog.  Q Frog?  A Yes.  Q All right.  A And George Milton is frog too.  GOLDIE:   All right.  Thank you.  Yes,  MR  MR  MR  THE COURT  RUSH:  Where is that at?  GOLDIE:  On the first page.  On 7.  About half-way down the first paragraph.  see.  Thank you.  GOLDIE:  RUSH: I  GOLDIE:  Q  A  Q  A  Q  A  Q  A  A  Q  A  Q  A  Q  The next entry records -- what is this, an interview  with Mr. Russell Stevens?  Yes.  And he's the source of the information, or were you  present when Frank Harris made a speech and Jacob  Morrison stood up and told him to sit down?  Russell Stevens is reporting to me something that he  saw.  Right.  Thank you.  Can you place a date on that?  I think that's 1988.  And the event that he is describing, did he tell you  when it occurred?  It was either at a meeting or a feast.  Frank Harris  died in the, as I recall, in the 1960's, and what  Jacob Morrison does is describe to him how there are  different areas that belong to different people, in  general terms.  He describes in general terms along  the Kispiox River.  No, I was asking you to try and date it for me and I  take it it must be before Frank Harris died and he  died in the 1960's?  Yes, and also it has to be before Jacob Morrison died  and Jacob Morrison died, if I recall right, well  before Frank Harris.  All right.  So it could be the 40's or 50's.  Next one is 13th of March, 1988, and this is an  interview with Art Ridsdale?  Yes.  And he's telling you about an event in which Tom 8957  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 Campbell put up a notice at a campsite stating "No  2 Trespassing" and he had done that after talking to the  3 Indian agent Mr. Mortimer?  4 A   I think he told Mortimer to do it and he didn't do it  5 and so Tom did it himself.  6 Q   Uh-huh.  7 A  And that was on the height of land at the east end of  8 the Suskwa River, S-u-s-k-w-a, near -- or overlooking  9 Fort Babine.  10 Q   And -- yes.  The next one is an interview with Fanny  11 Wilson of May 3rd, 1988.  She is Carrier-Sekani?  12 A   No, Fanny is -- Fanny married Peter Wilson.  Peter  13 Wilson was Himadim, H-i-m-a-d-i-m.  Fanny -- Fanny's  14 mother was -- what did she say here -- Fanny's  15 mother --  16 Q   Cariboo Hide.  17 A   Yes.  Oh, yes, up there.  18 Q   And the father was from Fort Graham?  19 A   Yes.  20 Q   Yes.  Well, she was -- what language was she speaking?  21 A  Well, she speaks Gitksan fluently and I don't know to  22 what extent she would speak the -- well, I would have  23 to say the language at Fort Graham, but I'm sure she  24 speaks it.  25 Q   Well, it's not Gitksan is it?  26 A   No, but she speaks Gitksan very fluently.  She almost  27 only speaks in Gitksan.  28 Q   And that was why Mr. Robinson was translating for you?  29 A   Yes.  30 Q   Well she, through Mr. Robinson, told you that her  31 mother was from Cariboo Hide, which is not Gitksan  32 territory is it?  33 A   That's right.  34 Q   Or Fort Graham, it's not Gitksan territory?  35 A   No, it's not.  36 Q   Right.  And she records at the bottom that her husband  37 was Peter Wilson?  38 A   Yes.  39 Q   And then over the page, father's name, and you've  40 underlined that, and was his name Dennis Patrick?  41 A   Yes.  What's interesting about this as well is both  42 her mother's mother and her mother, they all have  43 Gitksan names.  44 Q   Yes.  45 A   Like Gil Genx, Dennis Patrick, her father, that's a  46 Gitksan name.  It's spelled G-i-1 space G-e-n-x.  47 Q   And she may well have had Sustut or names from the 395?  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 people around Cariboo Hide or Fort Graham?  2 A   Could have.  3 THE COURT:  What is this note, parents were what?  4 THE WITNESS:   'Gaats.  That's —  5 THE COURT:  G-a-a-t-s with an apostrophe.  6 THE WITNESS:   Yes.  What that means is that they were both of  7 the same clan.  They were both Lax Seel, frog.  8 MR. GOLDIE:  9 Q   Is that contrary to Gitksan law?  10 A   Yes, and it's a law because it happens -- because it  11 does happen from time to time, and what ordinarily  12 happens when there is a 'Gaats marriage is a member of  13 one side of the other adopts that person into their  14 house so that they are -- then become a member of  15 another clan, another house, of a different -- of a  16 different phretry, I guess, p-h-r-e-t-r-y, in other  17 words, they would no longer be both frog.  One would  18 be frog and one would be wolf or fireweed or  19 something.  20 Q   And the information that she gave you continues over  21 to page 155, that is the written number at the bottom,  22 my lord, and everything that we find there is recorded  23 as her statement is it, her statements?  24 A   Yes, there's -- yes.  25 Q   Now, over the page then, May 6th, 1988, your  26 informants were William Jack, Thomas Jack, Steve  27 Robin -- well, Steve Robinson and yourself, at William  28 Jack's house in Burn's Lake, and the informants would  29 be William Jack and Thomas Jack, would they?  30 A   Yes.  31 Q   And Mr. Robinson was simply accompanying you?  32 A   Yes.  33 Q   And do you know who would be responsible for the  34 statements at the bottom of the page, "Joe Bob owns  35 Moose Valley.  Joe's Dad owned Moose Valley. Bob  36 Patrick owned it."  37 A   I don't recall which of the two or whether it was both  38 of them, but they're referring there to Joe Bob owning  39 Moose Valley, and Joe Bob is from the house of Nii  40 Kyap and also he's pointing out Joe's dad owned Moose  41 Valley.  That would be Bob Patrick.  Bob Patrick was  42 married to a member of the house of Nii Kyap.  43 Q   The next one is January 5th, 1987.  Does that  44 record -- who's Kenny John McKenzie please, was he  45 your informant?  46 A   Yes.  He -- Kenny John McKenzie is the grandson of  47 Mary McKenzie and Ben McKenzie. 3959  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  A  Q  A  Q  A  And when he says in the next page "Ben used to go near  top end Cataline Creek", the Ben is Ben McKenzie?  Yes.  Cataline Creek is in the territory of Djogaslee?  Yes.  And there's a height of land there that  separates Cataline Creek and -- on one side, and  Natlan, N-a-t-1-a-n, Creek on the other and Ben was up  in that area.  And the next one is November 17th, 1987, and your  informant was Eli Turner?  Yes.  THE COURT:  At the next tab?  MR. GOLDIE:  No, it's just the next separating page, my lord.  THE COURT: I don't have one here.  MR. RUSH:  The next separating page is 21.  MR. GOLDIE:  Oh, I'm sorry, we're under tab 21, and it's the  first one under tab 21, the only one.  THE COURT:  Thank you.  MR. GOLDIE:  Q   The informant was Eli Turner?  A   Yes.  The interview was November 17th, 1987?  Yes.  And is he responsible for providing you with all of  the statements on that page?  Well, some of it is my own.  Yes.  The one under the -- that follows the word  "Note"?  Yes.  All right.  Then under tab 22 there are just a series  of data sheets and these are all yours are they?  Yes.  The fourth one is identified "Gunanoot Creek".  Would  you just find that one, please?  No, that's Gunsnaat Creek.  Gunsnaat. Yes.  G-u-n-s-n-a-a-t.  And that records some information under remarks given  you by Mary Johnson?  Are you looking at --  Under "Remarks" you begin with the word "Note:  Historically belonged to Spookw of Gitanmaax".  What's  the source of that note?  I think the part that says "Historically belonged to  Spookw of Gitanmaax" comes out of the Barbeau Bulletin  of -- Barbeau Bulletin 61, page 113.  I think that the  part "is an ancient village known as Gitxsi  Q  A  Q  A  Q  A  Q  A  Q  A  Q  A  Q  A  Q  A 8960  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 gansnaaxt", G-i-t-x-s-i space g-a-n-s-n-a-a-x-t, would  2 have been what came from Mary Johnson.  3 Q   And you obtained that through two informants by the  4 name of Polly and Fanny?  5 A   Yes.  6 Q   And who are they, please?  7 A   Polly Sergeant and Fanny Smith.  8 Q   Mrs. Sergeant is the wife of the late Mr. Sergeant  9 who's termed the son of one of the original white  10 settlers in Hazelton?  11 A   Yes.  12 Q   Then that's followed by a map.  Is that identified as  13 a map from some work done by Mr. Wilson Duff?  14 A   Yes.  15 Q   The next page is in your handwriting?  16 A   Yes, and what I'm doing there is he has on his map --  17 THE COURT:  I'm sorry, looking at that map, is that the right  18 location for Kisgegas?  19 THE WITNESS:   Yes, it is.  See that what we've been referring  20 to so often Shedin Creek, S-h-e-d-i-n.  21 THE COURT:  Yes.  22 THE WITNESS:   And I'll show you where that is.  This is Shedin  23 Creek right here going right up here.  2 4 THE COURT:  Yes.  25 THE WITNESS:   And that's the one that he's identified right  26 there, and the village is right beside it.  Kisgegas  27 village is there.  Shedin Creek is there.  28 THE COURT:  It's the scale.  I guess it seemed -- we had it far  29 too close to Hazelton.  It may be just the scale.  30 THE WITNESS:   All he's showing is Gitksan territories here, not  31 Wet'suwet'en.  32 THE COURT:  Yes, I understand that.  33 THE WITNESS:   And it's the scale.  34 THE COURT:  Yes, all right.  35 MR. GOLDIE:  36 Q   Yes.  37 A  And what I was doing on the next page there was  38 another -- he had references elsewhere as to what  39 those codes were on the previous page.  F-l, F-2 -- or  40 F-l, F-3, W-l, W-4.  That's wolf one, wolf four, frog  41 one, frog three, et cetera. And here they are.  42 THE COURT:  Yes.  43 MR. GOLDIE:  44 Q   Well, you had identified W-2 as Malee?  45 A   Yes.  46 Q   But that's a Kitwancool house is it not?  47 A   Yes. 8961  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 Q   And Mr. Duff has placed that in the present Gitksan  2 claims area hasn't he?  3 A  Well, he has done a very -- well, which is true.  4 That's the same as we have here.  That's the  5 indentation that goes up here.  6 MR. RUSH:  What's the area that's being pointed to there?  7 THE WITNESS:   This is up in — well, on the map it's Mangeese  8 River, M-a-n-g-e-e-s-e, and he goes outside that area  9 and over to there and puts that down.  It's the same  10 thing as we have here.  11 MR. GOLDIE:  12 Q   The boundaries are not, of course, the same, but --  13 A   It's a general map.  14 Q   Well, he's drawn boundaries on it hasn't he?  15 A   They are very general boundaries.  16 Q   But he has drawn boundaries on it hasn't he?  17 A   He's done -- yeah, he's done some boundaries and it's  18 very general at a small scale.  19 Q   And the Malee boundary purports to cross the Nass  20 River doesn't it?  21 A   No, it doesn't.  22 Q   Well, just take a close look at it, please.  23 A  Well, you're talking about W-2?  24 Q   Yes, I am.  25 A  W-2 doesn't go up to -- no.  No. No.  He has  26 identified a W-2 there, but that W-2 doesn't identify  27 all of the area around that dotted line which takes in  28 Kispiox and right out almost to Babine -- to the  29 Babine area.  30 Q   Yes.  31 A   That -- that line -- that dashed line would include  32 what he would have identified as Kispiox territories.  33 Q   Well, we don't know what he would have identified.  34 A  Well, I know what he's identifying there because he's  35 got Kispiox in it.  36 Q   Yes.  37 A  And then he shows a W-2 over on that other creek.  38 Q   Yes.  That's precisely what I was drawing your  39 attention to.  40 A   But that W-2 doesn't identify that whole territory.  41 Q   Well, that's your interpretation.  42 A   It's the right interpretation.  43 Q   Well, it's your interpretation --  44 A   No, it isn't.  Just a minute.  Just a minute.  On the  45 left-hand side he has done a lot of work with the  46 Kitwancool people.  He spent a lot of time working  47 with them.  To this point he had also done some work 8962  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 with the Kispiox people.  2 Q   Yes.  3 A  All he does in that area, and you can see it, is  4 identify the village, the areas, by -- generally by  5 village and you can see that by what he does for  6 Kisgegas, Kuldo, Gitanmaax and Kispiox, but he puts  7 the initial or the label W-2 on that creek to show  8 that there is Kitwancool territory over on that side  9 of the Kispiox River.  It does not include all of  10 that.  11 Q   Yes.  That's your present position?  12 A  And it's the right one.  13 MR. GOLDIE:   Yes.  Of course.  Now, the next item —  14 THE COURT:  What is W-2 intended to designate?  15 THE WITNESS:   That designates Malee.  You see on the next page?  16 THE COURT:  Oh, yes.  All right.  17 THE WITNESS:   Malee is M-a-1-e-e, and then two other names  18 which are associated with Malee.  19 THE COURT:  Thank you.  20 MR. GOLDIE:  21 Q   And at that time, of course, he was treating the  22 Kitwancool as part of the Gitksan?  23 A   Yes.  24 Q   Yes.  Now, the next item is -- this is one of your  25 topographic sheets?  26 A   It is.  27 Q   And  the informant is a little hard for us to make  2 8 out.  29 A  Mike.  30 Q   Oh, it's recorded by Mike Morrell is it?  31 A   Yes, with David Blackwater.  32 Q   Is this Mr. Morrell's handwriting?  33 A   Yes, it is.  34 Q   And he recorded Mr. David Blackwater as identifying  35 the outlying area in the Slamgeesh Range about five  36 miles east of Slamgeesh Lake as part of the territory  37 of Dawamuuk?  38 A   Yes, that's -- and that's something we've discussed at  39 length about.  40 Q   And the next one is again recording by Mr. Morrell in  41 April of 1979?  42 A   Yes.  43 Q   The informants are David Blackwater and Bobby Stevens?  44 A   Yes.  45 Q   And he's also recording that as territory belonging to  4 6 Dawamuuk?  47 A   Yes. 8963  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 Q   Next page is again Mr. Morrell.  I can't make out the  2 date, but it's 1979?  3 A   Yes.  4 Q   And that too he's identifying as territory belonging  5 to David Blackwater?  I mean, yes, I'm sorry,  6 territory belonging to Dawamuuk?  7 A   Yes.  D-a-w-a-m-u-u-k.  8 Q   How's that spelled according to your present spelling?  9 A   I think with just -- well, it's on the statement of  10 claim.  I'm not sure whether it's just one "u" or not  11 at the end.  12 Q   And the next entry is again recorded by Mike Morrell  13 and this looks like the 1st of April, 1979, and again  14 his informants are David Blackwater and Bobby Stevens?  15 A   Yes.  16 Q   And this too he records as belonging in the territory  17 of Dawamuuk?  18 A   Yes.  And this is the -- what Walter pointed out to me  19 that it was Moses Stevens who was married to a member  20 or to a wolf and that it was really Gwinin Nitxw's  21 territory.  It's the same area that is properly Gwinin  22 Nitxw's.  23 Q   Of course if --  24 A   G-w-i-n-i-n space N-i-t-x-w.  25 Q   If Dawamuuk received this as part of a peace  26 settlement, that might be his territory wouldn't it?  27 A   I don't know anything about that, but it's clear from  28 what Walter Blackwater's telling me now and Solomon  29 Jack and others that it's Gwinin Nitxw's territory.  30 Q   And then the next two pages are those you recorded  31 following your interview with Mr. Blackwater on May  32 22nd, 1983, which we have the tape of now?  33 A   Yes.  34 Q   And then two over is again a recording by Mr. Mike  35 Morrell?  36 A   Yes.  37 Q   Informant David Blackwater?  38 A   Yes.  39 Q   Territory Dawamuuk?  40 A   Yes.  41 Q   The next one is recorded by you, that's June the 4th,  42 1979?  43 A   Yes.  44 Q   The informant was David Green?  45 A   Yes.  46 Q   And you placed Motase Lake, M-o-t-a-s-e, Lake in the  47 territory of Nii Kyap? 8964  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 A   He's identified it as being in that area, and in fact  2 the boundary runs along that lake.  3 Q   But it's now in the territory of Wii Gaak, is it not?  4 A   Yes, with -- with Nii Kyap running along the edge of  5 that lake.  6 Q   Yes, but it wasn't recorded as part of a territory at  7 that time, it was recorded as being in the territory  8 of -- I say it wasn't recorded as being part of a  9 boundary, it was recorded as part of a territory,  10 wasn't it?  11 A   I can't say that that's what was actually being said  12 at that time.  13 Q   And then the next one is again David Green with James  14 Morrison as a witness, June the 4th, 1979, and you  15 recorded Drift Lake as being in the territory of Nii  16 Kyap?  17 A   Yes.  18 Q   And it's now in the territory of Haiwas, H-a-i-w-a-s?  19 A   Yes.  20 Q   The next one is again information from David Green on  21 June the 4th, 1979?  22 A   Yes.  23 Q   And so with the next page?  24 A   Yes.  And it points out that Nii Kyap only owns that  25 lake.  It's —  26 Q   Yes.  27 A   -- just a small area.  2 8 Q   And same thing with the pages down to the one dated  29 December 16th, 1982.  They're all information given  30 you by David Green to which James Morrison was a  31 witness?  32 A   I don't know about December 16th, '82.  No.  James  33 Morrison wasn't a witness on that one.  34 Q   No, I'm excluding that.  35 A  All right.  36 Q   I said down to that one.  37 A   Yes.  38 Q   All right.  On December 16th, '82 your informant was  39 David Gunanoot and the Drift Lake was placed in the  40 territory of O'Yee?  41 A   Yes.  42 Q   And that is now in the territory of Haiwas?  43 A   Yes.  44 Q   And the next one is December 18th, '82.  David  45 Gunanoot is the -- is the informant, but he was not  46 sure of the ownership and you attributed that to Wii  47 Gaak? 8965  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 A That's not my writing there.  2 Q Oh —  3 A The Kisgegas is.  The two on top aren't.  The  4 "territory of" and "main crest" aren't my writing.  5 Q Can you identify that handwriting?  6 A No, I can't.  7 Q Is there any other writing on that page which is not  8 your handwriting?  9 A No.  10 Q Next page, is that the same thing?  When I say "same  11 thing" I mean it would --  12 A Yes, that's not mine.  13 Q -- appear that the handwriting where "territory of",  14 "main crest" and "village" is differs from yours?  15 A Yes.  16 Q But over on the right-hand side there appears to be  17 your handwriting to the same effect, is it not?  18 A That's my handwriting there.  Yes.  19 Q And that represents your opinion having regard to Mr.  20 Gunanoot's position that the people who owned the area  21 had all died off?  22 A That's my opinion.  23 Q Yes.  Is that not the case?  24 A Yes, but I don't recall what that was about, but that  25 area is in the area of Miluulak.  26 Q Well, that's what it's attributed to today?  27 A That's what's on map 9 A, and that's in the affidavit.  28 Q Yes.  And then the next page is an interview with  29 Solomon Jack on November 18th, '82; is that right?  30 A Yes.  31 Q And that's all in your handwriting?  32 A Yes, it is.  33 Q All right.  Thank you.  And the next page is all in  34 your handwriting?  35 A Yes.  36 Q That's the interview with Solomon Jack on November  37 18th, 1982?  38 A Yes.  39 Q And Solomon Jack's interview of November 18th, 1982 is  40 also the next one with a little map in the upper  41 right-hand corner?  42 A Yes.  I think we dealt with this last week or two  43 weeks ago.  It's the same one.  44 Q Yes.  But I'm asking you to confirm that's all your  45 handwriting?  46 A Yes, it is.  47 Q All right.  The next one is the same thing, your 8966  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 handwriting?  2 A   Yes.  3 Q   You say "the informant Solomon Jack" and then there  4 appears to be some other sources of information there?  5 A   Solomon Jack identified the name of the creek.  6 Q   Some information came to you in May of 1979 and some  7 in the spring of 1976?  8 A   The — yes.  9 Q   All right.  And the later information is the correct  10 one is it?  11 A   Yes, the May the 28th, '79 — well, what Solomon told  12 me isn't incorrect.  He identified the creek.  The --  13 and then Steve Robinson pointed out who was on the --  14 in May of '79 who was on the north side of Salmon  15 River.  16 Q   All right.  And the next one is stated to be recorded  17 by Irene Ness and informants Gideon Johnson.  Who was  18 Irene Ness, please?  19 A   She was from Gitsegukla.  20 Q   Was she one of the workers on the land claims?  21 A   No.  22 Q   Why is it included in your material then, is it --  23 have you adopted this?  24 A   It was -- I haven't -- I haven't used that.  It was  25 some information that was brought to my attention.  26 Q   But you didn't use it?  27 A   No.  28 Q   And then the next three pages all deal with the Roche  29 de Boule Mountain and your informants were all Dick  30 Lattie?  31 A   Dick Lattie.  32 Q   Dick Lattie.  33 A   L-a-t-t-i-e.  34 Q   Yes.  And all on May 31st, '79?  35 A   Yes.  36 Q   All right.  And that's all in your handwriting?  37 A   Yes, it is.  38 Q   Thank you.  At the bottom of the last of those three  39 you have a note about something Steve Robinson  40 differing from the information given you.  Which is  41 correct?  42 A  Well, that little -- in front of the Roche de Boule  43 there's a little sharp peak and it could be called  44 either one.  Neither is incorrect in terms of the name  45 of that peak.  4 6 Q   All right.  47 A   You could call it either. 8967  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 Q   And then our next one is -- that deals with  2 information given you on November 21st, 1982 by Mr.  3 Morrison.  That's in your handwriting?  4 A   Yes.  5 Q   All right.  Now, the same thing on the next page.  6 That's your handwriting?  7 A   Yes.  8 Q   This interview was the 23rd of April 1979 and you  9 placed a note, "Chris Harris to Art Sterritt, 1972".  10 That was information given you by Art Sterritt?  11 A   Yes.  12 Q   And then the next one is in your handwriting, Barker  13 Creek?  14 A   Yes.  And that's the one that I was wrong about as to  15 the location of that.  16 Q   Yes.  And the next one is also yours, informant Ben  17 McKenzie?  18 A   Yes.  19 Q   And the next one is yours from informant Steve  20 Robinson?  21 A   Yes.  22 Q   And the same with the next one which is May 28th,  23 1979?  24 A   Yes.  25 Q   And Art Sampson in February 1976, that's yours?  26 A   Yes.  27 Q   Two of those -- or not two, there's more than two,  28 three in all.  The last one, Mr. Sterritt, you have  29 noted as recorded by you on December 16th, 1982.  The  30 informant Art Sampson, February 1976.  Does that  31 indicate that this is transferred from notes made in  32 February '76?  33 A   Yes, to the data sheet.  34 Q   Yes.  All right.  35 A   Yes.  36 Q   Thank you.  The next one is yours.  The informant is  37 your father, Mr. Gunanoot, and Pete Muldoe?  38 A   Yes.  39 Q   And Stanley Wilson; is that right?  40 A   Yes.  41 Q   Thank you.  The next one, is that your handwriting  42 also?  43 A   Yes.  44 Q   All right.  Thank you.  And the next one is Eli  45 Turner?  46 A   Yes.  47 Q   You've marked there as recorded on March the 10th, 396?  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 1981.  Is that the time you got this information from  2 Mr. Turner?  3 A   Yes.  4 Q   And he states the territory he describes belongs to  5 all houses?  6 A   It's not a territory, it's just a lake.  It's --  7 Q   Well, it's so much as to the extent that a lake can be  8 described as territory, he says it belongs to all  9 houses?  10 A  Well, I'm simply using this form to write down what's  11 there, but I didn't -- I mean, it doesn't refer to a  12 territory, it refers to a lake.  13 Q   Yes.  And Chicago, the next item, Chicago Creek,  14 recorded by M. Brown, Neil Sterritt, is that Martha  15 Brown?  16 A   Yes.  17 Q   And the informants are J. Williams and Steve Robinson?  18 A   Yes.  19 Q   All right.  The next one is yours of informant Henry  20 Wilson of February 12th, 1980?  21 A   Yes.  22 Q   And the same thing in the next one, and the next one,  23 and then the next one is Damsumlo Lake and your  24 informant was Henry Wright of July 7th, '79, and then  25 you have other notes, David Green, Joshua McLean,  26 James Morrison.  What is the significance of that,  27 please?  28 A   They were there.  29 Q   They were witnesses to what Mr. Wright said?  30 A   Yes.  And somewhere back in here you -- we went  31 through those notes.  32 Q   Yes.  And the significance of transferring it to the  33 data sheet, however, is that it was intended for  34 ultimate transmittal onto a map?  35 A   Yes, but it didn't mean that it was final.  36 Q   Well, we know that.  37 A  As I pointed out, there was review and verification  38 which I eventually did, and the affidavit process,  39 which are the end result of the process.  40 Q   Then the next one is dated 1976, informant Pete  41 Muldoe, McCully Creek, and that's yours?  42 A   Yes.  43 Q   And the next one is Pete Muldoe and there seem to be  44 two different types of handwriting on that page, one  45 in the body of the sheet and the other under other  46 notes.  Are they both yours?  47 A   I think they are. 8969  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 MR. GOLDIE:   All right.  Thank you.  Tab 23, my lord, is one  2 we've already dealt with.  3 THE COURT:  Just going back to that last one, these cabins we've  4 heard so much about, I don't know if it's ever been  5 comprehensively stated, do I understand these are  6 cabins on the Telegraph Trail?  7 THE WITNESS: That's what — yes.  They are numbered beginning  8 just above Kispiox and they go to almost where we  9 landed on our -- when we were way up the Bell-Irving  10 River to 9th Cabin there.  11 THE COURT:  Is there any other sequence of cabins given this  12 designation as cabin 1, 2, 3, et cetera, or first,  13 second, third?  Anytime I've heard reference to a  14 cabin by a number in that way, I can assume, can I,  15 that they are these cabins on the Telegraph Trail?  16 THE WITNESS:   Yes.  17 THE COURT:  Yes.  Thank you.  18 THE WITNESS:   But what you may find — well, now it won't  19 happen.  That's -- that's what it would refer to, from  20 one to nine.  21 THE COURT:  Yes, I assumed that, but I don't know that it's been  22 stated.  Sorry, Mr. Goldie.  23 MR. GOLDIE:  24 Q   And those are the cabins, of course, that date back to  25 the days of the Dominion telegraph service?  26 A   Yes.  About 1866 is when they first went through  27 there.  28 THE COURT:  1866.  29 MR. GOLDIE:  30 Q   Well, that was only to Kispiox wasn't it?  31 A   Yes but that's when they first went through.  They  32 were beginning the Cullins overland telegraph at that  33 time.  34 Q   But these cabins north of Kispiox are dated from the  35 days of the Dominion telegraph service are they not?  36 A  Which was revitalized around the turn of the century.  37 Q   Yes. All right.  As I said, my lord, the notes under  38 tab 23 are the ones that we dealt with yesterday.  39 Mr. Sterritt, with respect to those notes,  40 however, they are dated as you told us the 23rd or  41 28th of September, 1986.  Have there been subsequent  42 meetings with the Carrier-Sekani?  43 A   The subsequent meeting was at Burns Lake.  44 MR. GOLDIE:  Could I see Exhibit 103, please?  45 THE REGISTRAR: 103 A?  46 MR. GOLDIE:  47 Q   Yes.  That's right.  Thanks.  I'm showing you Exhibit 8970  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 103 A, and I'd like you to confirm whether those notes  2 are in your handwriting.  And that's dated April 4th,  3 1987, my lord.  4 A   Yes.  Those are all my handwriting.  5 MR. GOLDIE:   Thank you.  And they have been marked for  6 identification, my lord.  I ask that these be  7 confirmed as an exhibit.  8 THE COURT:  No objection, Mr. Rush?  9 MR. RUSH:  No.  10 THE COURT: Yes.  All right.  Well, were they given the A  11 designation?  12 THE REGISTRAR: They've been marked on January the 11th, '88 as  13 103 A for identification.  14 THE COURT:  All right.  It will remain 103 A.  15  16 (EXHIBIT 103 A:  Notes dated April 4, 1987 of N.  17 Sterritt)  18  19 MR. RUSH:  Yes.  20 MR. GOLDIE:  Yes.  My lord, I want to confirm the authorship of  21 Exhibit 582 which was marked for identification.  22 Would you confirm that those are notes from your  23 notebooks?  24 THE COURT:  What was the date 103 A was marked?  25 THE REGISTRAR: It was marked January the 11th, '88, 103 A.  26 MR. GOLDIE:  27 Q   Just that one.  28 A   Yes, those are my notes.  29 MR. RUSH:  May I see that, please?  30 MR. GOLDIE:  My lord, those were notes put by Mr. Mackenzie to a  31 witness -- Mr. Plant, I'm sorry, to Mr. Glen Williams.  32 THE COURT:  And the number?  33 MR. GOLDIE:  582, and it was marked for identification and the  34 witness now confirms that that is his note.  35 Mr. Sterritt, I was supplied with -- oh, yes,  36 under tab 24 --  37 THE COURT:  You're asking that now be Exhibit 582 are you?  38 MR. GOLDIE:  Yes.  39 THE COURT:  Mr. Rush, no objection?  40 MR. RUSH:  No, my lord.  This note was put to Mr. Sterritt I  41 think today or yesterday.  42 THE COURT: All right.  43  44 (EXHIBIT 582: Notes of Neil Sterritt)  45  46 MR. GOLDIE:  47 Q   Tab 24, Mr. Sterritt, in the book before you, would 3971  Submission by Mr. Rush  1 you confirm that those are all notes of yours?  2 A  All that's in that tab?  3 Q   Yes.  4 A   Yes, they are.  5 MR. GOLDIE:  All right.  My lord, I'd ask that the whole of this  6 book be marked as a single exhibit.  7 THE COURT:  Mr. Rush?  8 MR. RUSH:  Well, my lord, a number of these entries and dividers  9 are extracts and my first position is that the whole  10 of the entry should go in.  I haven't been able to go  11 through each and every one of these entries comparing  12 them with the notes that I have, but I've done it in  13 some cases and there's been a selection made of  14 certain pages from certain entries and it's my  15 submission that the whole of the particular entry  16 that's being relied upon, in some cases it's a page  17 and in other cases it's up to 15 or more pages, I  18 think the whole of it should go in.  19 So that's my first position, and I think  20 furthermore, my lord, I think that -- I think these  21 should be separately marked in some way in order to  22 identify and distinguish one to the next.  23 THE COURT:  Well, that can be accomplished by giving them a  24 suffix —  25 MR. RUSH:  Oh, yes.  26 THE COURT:  — relating to the tab number.  27 MR. RUSH:  Yes, I think it can be, but it's not just the tab  28 numbers.  There are a number of dividers in respect of  29 each tab and then there's, of course, the difficulty  30 that is presented by the grouping together, the  31 gathering of the topographic sheets under tab 22, and  32 maybe that's not a particularly big problem, but I  33 certainly think that the divider or the separator  34 should be separately marked in some way so we  35 understand what it is that we're marking here.  36 THE COURT:  Miss Koenigsberg?  37 MS. KOENIGSBERG:  I have nothing to add.  I have no objection to  38 it being marked.  39 THE COURT:  Goldie?  40 MR. GOLDIE:  I can certainly have it marked in whatever fashion  41 is -- it follows the way in which Exhibit 721 was  42 dealt with.  There's an index, and I can mark it in  43 accordance with the index whatever the exhibit number  44 is and a dash with each tab.  45 THE COURT:  It doesn't seem to me that it's a matter of  46 substance.  It's a matter of some difficulty, but not  47 insuperable difficulty.  I think that the numbering 8972  Ruling by the Court  Submission by Mr. Goldie  1 that Mr. Rush proposes can be accomplished.  Madam  2 registrar will have her hands full, but I think we'll  3 mark the book as the next exhibit number followed by a  4 dash for each tab number and by a letter A, B, C, et  5 cetera, for each separate section separated by the  6 blue dividers.  I don't see that there is any major  7 difficulty that stands with that being done.  8 With regard to Mr. Rush's first position, Mr.  9 Goldie —  10 MR. GOLDIE:  Well, I think that's properly something for my  11 friend to be concerned about.  The witness had no  12 difficulty in dealing with the extracts.  He's  13 identified each one and if my friend feels that  14 there's something he wishes to put to the witness in  15 re-examination from these documents, that's fine, but  16 the other -- the other parts are extraneous and  17 irrelevant.  18 THE COURT:  Well, certainly whether it's extraneous or  19 irrelevant or not is an entirely different matter.  I  20 think Mr. Rush and Mr. Goldie that I should follow the  21 ruling that I've made in other respects and to say  22 that I do not think the use of a document or a part of  23 a document in cross-examination necessarily lets in  24 the entire balance of what may be very lengthy  25 documents or collections of documents, but I think  26 having said that, that if there are other documents in  27 the same collection, that is, from which these  28 documents have been extracted which are connected,  29 which is the word used in the cases relating to the  30 use of discovery evidence, then I think that those  31 other documents can go in, not as part of the case of  32 the cross-examiner who puts the document in  33 originally, but as just evidence in the case which may  34 explain or even contradict the document.  35 I don't think it's fair to Mr. Rush to expect him  36 to deal with this in re-examination at this moment  37 unless he's able to do so, and I doubt that he is, but  38 it does seem to me that Mr. Rush, not having known,  39 which I assume he didn't know with certainty, which  40 documents were going to be referred to in the  41 cross-examination, that he ought to be entitled when  42 he's ready to make his submission in this regard to  43 urge that other documents from the same collections be  44 admitted into the evidence with the purpose I've  45 described.  46 MR. GOLDIE:  Well, that's perfectly all right with me, my lord.  47 We can maybe deal with my friend's submission at the 3973  Submission by Mr. Rush  1 same time as we receive other documents that I have  2 requested arising out of Mr. Sterritt's  3 cross-examination.  4 THE COURT:  All right.  5 MR. GOLDIE:  Could I have the number please of the —  6 MR. RUSH:  I'm sorry, if we're leaving the subject, that's not  7 satisfactory to me, my lord.  I mean, at the very  8 least, in my submission, I ought to be entitled to,  9 once having gone through these various tabs and  10 dividers, to put the whole of the document in.  I  11 mean, I'm in the position now where I don't know how  12 many pages there are here, but there are a lot, and  13 these have been extracted selectively and I'm not  14 going to be able to put all these to Mr. Sterritt and  15 ask him whether or not a particular passage that Mr.  16 Goldie has referred him to is otherwise referenced in  17 other material within the same entry.  18 THE COURT:  Well, I'm open to be persuaded, Mr. Rush, but are  19 you not -- are you not splitting your case?  20 MR. RUSH:  Well, I don't think so, my lord.  21 THE COURT:  If these documents are part of your case, should  22 they not have been put in in chief and are you not  23 limited now to putting in those documents that meet  24 the special test I've just described or attempted to  25 describe.  26 MR. RUSH:  Well, as long as I'm able to put in documents without  27 Mr. Sterritt being here.  That's my difficulty, is  28 that I'm now in a position where I can't put a  29 document to Mr. Sterritt.  3 0 THE COURT:  Yes.  31 MR. RUSH:  I can put some —  32 THE COURT:  No, I think whether the document is from the same  33 collection is connected.  It's not dependent upon Mr.  34 Sterritt's evidence, it's a matter of reading it and  35 comparing the document with what's already gone in.  36 That's an intellectual exercise that we can struggle  37 with in Mr. Sterritt's absence.  38 MR. RUSH:  Well, I'm satisfied to deal with it on that basis,  39 but I don't think it's entirely that, as I think that  40 the cross-examination's demonstrated, that words  41 appear on the page and it doesn't readily appear what  42 the significance of it is.  43 THE COURT:  Yes.  Well, I don't think that we should feel in any  44 way limited by what's happened today as being the  45 final word on the subject.  I think if you raise it  46 again and, as I say, I'm open to be persuaded on it,  47 but my present view is as I have stated, including of 3974  Proceedings  1 course what I've said prior to what Mr. Rush has said.  2 All right.  We'll take the morning adjournment.  3 THE REGISTRAR: Do we fix a number first?  4 THE COURT:  Yes, I'm sorry.  We better get rid of that.  What's  5 the next number?  6 THE REGISTRAR: Exhibit number 774, and the tabs will be 774 - 1.  7 The blue sheets will be --  8 MR. GOLDIE:  A, B, C.  9 THE REGISTRAR: A, B and C.  10 MR. GOLDIE:  All right.  Thank you.  11 THE REGISTRAR: Corresponding to the tab.  12 MR. GOLDIE:  Yes.  13 THE COURT:  Yes. All right.  Thank you.  14  15 (EXHIBIT 774:  AGBC Blue Book Vol. 3, 24 tabs - Neil  16 Sterritt notes handwritten. Tabs 774 - 1 to 774-24  17 with separator sheets marked A,B,C, to correspond with  18 tabs)  19  20    THE REGISTRAR: Order in court.  Court will recess.  21  22 (PROCEEDINGS ADJOURNED AT 11:25 a.m.)  23  24 I hereby certify the foregoing to  25 be a true and accurate transcript  26 of the proceedings herein to the  27 best of my skill and ability.  28  29  30 Tanita S. French  31 Official Reporter  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 8975  N. Sterritt (For Plaintiffs)  Cross-exam by Mr. Goldie  1 (PROCEEDINGS RECONVENED PURSUANT TO THE MORNING BREAK)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Mr. Goldie.  5 MR. GOLDIE:  My lord, one other matter.  I had -- there was  6 delivered to me on October 20th, in compliance with  7 requests previously made, some 13 contracts with  8 consultants, and I'm going to read so that it goes  9 into the record.  Sylvia Albright, May 30th, 1985;  10 Hugh Brody, April 1986; Rod Chilton, May 24th, 1985;  11 John Cove, March 3rd, 1986; Richard Daly, Richard Lee,  12 April 22nd, 1986; David Hatler, November 22nd.  And I  13 think —  14 THE COURT:  November 22nd of what year?  15 MR. GOLDIE:  16 Q   It doesn't state, my lord, but I think -- oh, 1985 it  17 must be.  Sybille Haeussler, Skeena Forestry  18 Consultants, July 17th, 1985; James M. Kari, May 12th,  19 1986; Barbara Lane, Lane & Lane Associates, June 13th,  20 1985; Rolf W. Mathewes, November 5th, 1985; Antonia  21 Mills, March 13th, 1985, Mike Morrell, May 16, 1986;  22 Bruce Rigsby, March 24th, 1986.  23 So far as my examination goes, Mr. Sterritt, all  24 of these appear to have been executed on behalf of the  25 tribal council by somebody other than yourself.  I  26 take it that you had nothing to do with the execution  27 of these contracts between the tribal council and the  28 consultants that I've named?  29 A   That's right, I did not.  Other persons -- I had a  30 number of responsibilities in certain areas, and other  31 persons took on major responsibilities in other areas,  32 and they looked after that.  33 Q   Do you have any knowledge of the negotiations with  34 respect to the terms and conditions of these  35 agreements?  36 A   No, I didn't.  That was delegated to other people, and  37 they were totally responsible for that.  38 Q   All these were entered into after the writ was issued.  39 Do you have any knowledge of any arrangements with any  40 of these people, except Professor Cove, whose earlier  41 contract has been produced, prior to the writ being  42 issued?  43 A   No.  44 Q   All provide that manner -- that work shall be done in  45 a manner satisfactory to the tribal council.  I'm  46 asking you to assume that that is provided in all of  47 these.  And on that assumption, were you involved in 3976  N. Sterritt (For Plaintiffs)  Cross-exam by Mr. Goldie  the determination of whether the work was satisfactory  of any of these?  A   No, I wasn't.  The lawyers and Richard Overstall.  Q   A number provide for the filing of draft reports.  Did  you see any of these?  A   I saw some of them.  I think when we -- when we went  through this two weeks ago I referred to what I had  seen, and that was it.  Q   All right.  Thank you.  All provide that no part of  the compensation shall be paid to members of the House  of Commons.  Is this clause inserted because some or  all of the funding was to come from the Government of  Canada?  A   Yes.  GOLDIE:  I'm not going to ask that these be marked, my lord.  They'll be dealt with when the individual consultant  is on the stand.  That completes my cross-examination.  COURT:  Thank you.  Ms. Koenigsberg.  KOENIGSBERG:  My lord, just to complete a task-keeping chore  involving my cross-examination of Mr. Sterritt, in the  marking of the book of documents which I used with Mr.  Sterritt there was a document at tab 1.  It's now  Exhibit 762, tab 1, called Organizing for Self-  Government and Management Training and Development  Plan, and my friend, Mr. Rush, requested that the  whole of that document, if it wasn't present, be  marked, and I do have a copy of the whole of that  document.  COURT:  That was Exhibit 7 62?  KOENIGSBERG:  762, and it will be tab 1.  COURT: Yes. All right. All right. Well then, would it be  convenient to mark that document as 762-1A?  KOENIGSBERG:  I have no objection, if my friend has no  objection, to this document simply -- that I have just  handed up -- being substituted for tab 1. It's simply  all of tab -- all of the document instead of --  COURT:  There is no magic in keeping the other document  separate?  KOENIGSBERG:  None at all.  COURT: All right. If Mr. Rush agrees, and I think he does,  then this will be substituted as Exhibit 762-1. Thank  you. You're not seeking any right to re-examine after  Mr. Goldie's cross-examination, Ms. Koenigsberg?  KOENIGSBERG:  No, my lord.  COURT:  All right.  Mr. Rush.  RUSH:  Mr. Sterritt, I'm going to ask you a number of  questions.  Some of these, and most of these, are by  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  MR.  16  17  18  THE  19  MS.  20  21  22  23  24  25  26  27  28  29  THE  30  MS.  31  THE  32  33  MR.  34  35  36  37  THE  38  39  MS.  40  THE  41  42  43  44  MS.  45  THE  46  MR.  47 8977  N. Sterritt (For Plaintiffs)  Re-exam by Mr. Rush  1 reference to volume numbers, but I may not necessarily  2 in each case refer you to a transcript.  For the  3 convenience of the court, my lord, I will make a  4 reference to a transcript number, but not in all cases  5 or maybe any of them will I necessarily refer you to  6 that.  7 THE COURT:  Okay.  8  9 RE-EXAMINATION BY MR. RUSH:  10 Q   Mr. Sterritt, you gave evidence that there is no  11 Gitksan-Wet'suwet'en Tribal Council Society today --  12 I'm paraphrasing your words -- and that the statement  13 that the society represents the hereditary chiefs with  14 respect to the -- their aboriginal title is not true  15 today.  Can you tell the court when the society ceased  16 to exist?  17 A  As I recall, it was about June of 1987.  18 THE COURT:  After the trial started?  19 THE WITNESS:  Yes.  2 0 MR. RUSH:  21 Q   Now, your attention was also directed in the cross-  22 examination to a resolution of some hereditary chiefs,  23 and this was dated April the 3rd, 1975.  And this is a  24 resolution that's marked, my lord, Exhibit 116.  And  25 this resolution directs, and I quote, "Our elected  26 representives on the Gitksan-Carrier Tribal Council to  27 make land claims a priority issue."  Were you an  28 elected representative of the tribal council at that  2 9 time?  30 A   No, I was not.  31 Q   Who were, to your knowledge?  32 A   I don't recall all of them, but Ray Jones was the  33 president at that time.  I believe that Victor Jim was  34 the vice-president.  I think that Howard Wale was a  35 member.  I -- Richard Morgan, I think, was an elected  36 member at that time.  Ken Russell, Dan Michell, or  37 Johnny Mack from Moricetown, Perry Sampson from Glen  38 Vowell.  That's all I can recall.  I don't recall the  39 others.  40 Q   Okay.  Was there any other similar resolution such as  41 this one, which was marked Exhibit 116, passed in and  42 around the same time, to your knowledge?  43 A   There was no written resolution.  There was a -- a  44 meeting of the chiefs, I think it was in January, at  45 which --  46 THE COURT:  '76 or earlier?  4 7 MR. RUSH: 397?  N. Sterritt (For Plaintiffs)  Re-exam by Mr. Rush  1 Q   January of the same year, which was '75.  Or is it  2 January of the next year?  3 A   I think it was January of '75 where -- well, the  4 location will identify.  It was a meeting in Kitwanga  5 of a -- almost about a hundred hereditary chiefs,  6 where Gary Patsey, Al Mason, and myself were asked  7 to -- to coordinate a map with boundaries and I think  8 a -- a statement or a declaration.  9 Q   All right.  Now, is that all you had to say on that?  10 A   Yes.  11 Q   Okay.  Now, you also made reference in your testimony  12 to a list of trapline holders, which you said in your  13 evidence that you had reviewed with Ben and Mary  14 McKenzie, and at the time that you gave the evidence  15 you said that you hadn't been able to find it.  Were  16 you able to locate it?  17 A   Yes.  18 Q   And did you provide me with a copy?  19 A   Yes, I did.  20 Q   All right.  Is this the list to which you made  21 reference in your testimony?  22 A   Yes, it is.  23 Q   All right.  The list is typewritten in part, and there  24 seems to be printing or handwriting on the list as  25 well?  26 A   Yes, that's my printing.  27 Q   Now, did you type this, Mr. Sterritt?  28 A   No.  It was a list that the Department of Indian  29 Affairs had and --  30 Q   And the printing or the writing that's otherwise on  31 this list, is that in your hand?  32 A   Yes, it is.  That's information that Mary and Ben  33 McKenzie are providing me as I go through it.  34 Q   All right.  There is a number of pages that have no  35 type on them.  Can you just flip through the second  36 page, for example.  Is that your handwriting?  37 A   Yes, that would be the backside of a -- of another  38 page.  39 Q   Just go ahead, if you will, to -- there is another  40 page with Steve Morrison at the top.  41 A   Yes.  42 Q   Similarly in your handwriting?  43 A   Yes.  44 Q   And the last page, is that similarly your diagram or  45 handwriting -- and handwriting on that page?  46 A   Yes, it -- now, that information, it seems to me that  47 I must have sat down with Steve Morrison as well as 3979  N. Sterritt (For Plaintiffs)  Re-exam by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR.  MR.  A  Q  A  Q  A  Mary and Ben, Steve either earlier or later, probably  later.  And that's where that information -- he's  provided me with that information that's on the backs  of the pages.  GOLDIE:  Where is that page?  RUSH:  Q   Are you just referring to the back of the last page,  Mr. Sterritt?  As well as his name on the other one.  That's the back of what looks to be the page after  typewritten page number 3; is that right?  Yes.  And what about the information on the -- the second  page after page number 1?  That would be -- that would be information from Mary  and Ben.  Q   Apart from what you've indicated was the information  coming from Mr. Steve Morrison, is all the other  information handwritten on here information from Mary  and Ben?  A   Yes.  RUSH:  All right.  May that be an exhibit?  GOLDIE:  Well, excuse me, my lord.  I'd like to know what  gave rise to this.  My friend has said he gave  evidence, but I'd like to see the transcript reference  to see if it arises out of the cross-examination.  It's page 8090 at Volume 131, where my friend made a  request of the production of this.  It was produced,  and I am now producing it to the witness.  A copy was  given to you.  GOLDIE:  All right.  I don't object.  COURT:  All right.  RUSH:  My lord, may that be an exhibit, please?  COURT:  It will be 775.  REGISTRAR:  775.  RUSH:  Exhibit 775?  COURT:  Yes.  RUSH:  Thank you.  (EXHIBIT 775 - LIST OF TRAPLINE HOLDERS)  MR. GOLDIE:  Could we have an indication from the witness as to  the date of the annotations, my lord?  MR. RUSH:  Well, my lord, that's all given in cross-examination.  That was a matter of some cross by my learned friend,  and I don't intend to pursue it.  I think it's there  in the cross, and I think if he turns to the  MR.  MR.  MR. RUSH  MR.  THE  MR.  THE  THE  MR.  THE  MR. 3980  N. Sterritt (For Plaintiffs)  Re-exam by Mr. Rush  1  2  THE  COURT:  3  MR.  RUSH:  4  5  THE  COURT:  6  7  MR.  RUSH:  8  THE  COURT:  9  MR.  RUSH:  10  MR.  GOLDIE  11  12  MR.  RUSH:  13  MR.  GOLDIE  14  MR.  RUSH:  15  Q  16  17  18  19  20  21  ]  22  23  A  24  25  Q  26  27  28  29  30  A  31  32  33  Q  34  i  35  A   I  36  37  38  39  Q  40  A  41  Q  42  43  A  44  Q  45  46  i  47  A   '  reference, he'll find it.  Of the notations?  Yes, I think it was -- I think the evidence was it  was sometime in 1975 or '76.  I can't be sure which.  What about the part that's obliterated on the front  page?  Is that on all copies or just my copy?  Yes, this is on all copies.  All right.  That's a defect.  All right.  :  Well, I don't find the date that my friend is  referring to here.  Well, it's —  :  It was not before us.  I'm happy to go into it.  I don't want to argue about  this, my lord.  I want to get on with this process if  I can, and if it would help things by asking Mr.  Sterritt, yes.  Mr. Sterritt, the date, as best as you can recall,  when you had the discussions with Ben and Mary  McKenzie that resulted in your handwriting on now  Exhibit 775, can you advise the court?  This is one of the first things that I did, and it  would have been in -- in or very close to 1975.  Now, Mr. Sterritt, at page 8103 of Volume 131 the  court asked you for the special name given to a head  chief, and in your evidence at that time you said --  you replied a Miin Simoighet.  I want to ask you if  there is a term in Gitksan known as Warn Simoighet?  Yes, there is.  And those are spelled M-i-i-n space  S-i-m-o-i-g-h-e-t, and the second one is W-a-m space  S-i-m-o-i-g-h-e-t.  Okay.  And what -- is there any difference between a  Warn Simoighet and a Miin Simoighet?  Miin Simoighet is a head chief of a house.  There are  a number of -- there are the chiefs and what we call  the wings in the house, who all -- their names would  be considered a Warn Simoighet.  And what does Warn Simoighet mean?  The name of a chief.  That's the literal meaning of the word -- words Warn  Simoighet?  Yes, it is.  All right.  You then later made reference at the same  point in your evidence to a Simoighet.  Is there a  difference between a Simoighet and a Warn Simoighet?  Warn is -- is an adjective.  Simoighet is a person.  So 3981  N. Sterritt (For Plaintiffs)  Re-exam by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR.  THE  THE  THE  THE  MR.  THE  MR.  Q  A  RUSH:  COURT  if you said that is a Warn Simoighet, you're saying  that that name that that person has is a chief's name.  If you say that's a Simoighet, that's a chief.  Referring to the person?  To the person, yes.  All right.  Okay.  Is it W-a-m or n?  WITNESS:  "M" as in Mary.  COURT:  That's Warn with an "m"?  WITNESS:  Warn, yes.  RUSH:  Okay.  Now, in Volume 132, page 8149,  you described a means by which the --  I'm sorry, Mr. Rush, the page number?  Mr. Sterritt,  COURT:  RUSH:  Q  Page 8149 at Volume 132, lines 13 to 47.  You described a means by which the hereditary  chiefs would get together to meet to decide how any  damages that might be awarded should be applied, and  then subsequent to that -- and this is another  reference, my lord, at 8150, same volume, line 6 to  7 -- you said that the process would include  discussions within the house, and my question is can  you describe what role the house would play in those  discussions?  A   The houses would play a major role.  The -- the  hereditary chiefs of the given house would -- could  meet possibly before such a session and then again  after a session, where the hereditary chiefs get  together, and would -- decisions of the house would  prevail.  The -- a meeting of just the hereditary  chiefs to discuss such a situation would not  necessarily be the final answer to it.  The houses  themselves would meet separately.  Q   Now, you explained in your evidence that there was an  area identified for the House of Xsgogimlaxha, and  this is at page 8166 of Volume 132, and that's at line  5 to 6.  Now, later on, Mr. Sterritt, at page 8167 at  lines 36 to 38, you said that you were not able to  identify a Xsgogimlaxha territory within the  Kitsegukla territory.  Now, can you clarify for the  court, are there any house territories belonging to  Xsgogimlaxha on map overlay 9A?  A   No, there are not.  Q   Now, does Xsgogimlaxha, to your knowledge, have  territories?  A   Xsgogimlaxha, no, I don't know.  But Xsgogimlaxha does  have fishing sites at Kitsegukla. 8982  N. Sterritt (For Plaintiffs)  Re-exam by Mr. Rush  1 Q   All right.  Now, can you assist me, Mr. Sterritt, is  2 Xsgogimlaxha a separate house?  3 A   Yes.  4 Q   All right.  And you say that Xsgogimlaxha has fishing  5 sites?  6 A   Yes.  7 MR. RUSH:  All right.  8 THE COURT:  Is Xsgogimlaxha a plaintiff?  9 MR. GOLDIE:  Yes.  10 THE WITNESS:  Yes.  11 MR. RUSH:  12 Q   Okay.  Now, let's see.  At page 8167, I think, as  13 well -- my lord, this is still in Volume 132, line 31  14 to 34 -- you gave evidence that a territory once  15 thought to be that of Xsgogimlaxha belonged in fact to  16 Wiis Dis.  Now, is Wiis Dis a hereditary chief's name?  17 A   That's W-i-i-s D-i-s.  Wiis Dis is a hereditary chief  18 who has been -- and that name has been looked after by  19 Gasgabaxs, G-a-s-g-a-b-a-x-s.  20 Q   The name is a hereditary chief's name, is it?  21 A   Yes.  22 Q   All right.  I think you said there was no -- no holder  23 of the name of Wiis Dis today; is that right?  24 A   That's right.  25 Q   Okay.  Now, in which house is the name of Wiis Dis?  26 A   The name is in the House of Molxan, which has also  27 been looked after -- Molxan is M-o-l-x-a-n -- which  28 has been looked after by Gaxsbgabaxs.  29 Q   Okay.  Now, is there territory -- if you go over to  30 map 9A, is there territory separately identified as  31 the territory of Wiis Dis on the map?  32 A   Yes, there is.  It's right by the Village of  33 Kitsegukla on the south side.  34 Q   Now, Mr. Sterritt, on my desk-size map I have a  35 designation of the territory Gaxsbgabaxs and then  36 below that Wiis Dis and an arrow pointing to a  37 territory.  Is that on the -- on that map as well, the  38 large overlay?  39 A   Yes.  There is a territory right next to the territory  40 of Wiis Dis that shows an arrow of Gaxsbgabaxs going  41 to that territory.  I think that that arrow referring  42 to Gaxsbgabaxs going on that side, I think it's both.  43 It should be Gaxsbgabaxs in relation to Wiis Dis,  44 because she's speaking for him, and Gaxsbgabaxs on the  45 territory where the arrow goes.  46 Q   All right.  Well, this is what I don't understand.  47 Does Gaxsbgabaxs/Wiis Dis go with the territory to 8983  N. Sterritt (For Plaintiffs)  Re-exam by Mr. Rush  1 which the arrow is pointing?  2 A   Yes.  3 Q   All right.  Now, there is also a territory beneath the  4 words Gaxsbgabaxs/Wiis Dis.  What can you say about  5 that territory in terms of ownership?  6 A   That's the one I'm referring to.  It's Wiis Dis looked  7 after by Gaxsbgabaxs, and Gaxsbgabaxs is speaking on  8 behalf of them because Wiis Dis -- there is no holder  9 of that name.  10 Q   So should it be Gaxsbgabaxs/Wiis Dis in respect of  11 both of those areas?  12 A   Only the one area.  Gaxsbgabaxs on the left side where  13 the arrow points, and on the right side it should be  14 Gaxsbgabaxs/Wiis Dis.  15 THE COURT:  Well, how many members are in this House of Wiis  16 Dis?  17 THE WITNESS:  I don't know.  18 THE COURT:  How long has the name been vacant?  19 THE WITNESS:  I don't know.  I can't say.  I don't know.  2 0 THE COURT:  All right.  21 MR. RUSH:  22 Q   Okay.  My next reference, my lord, is to Volume 133.  23 You said in your evidence here -- the reference, my  24 lord, is page 8253, Volume 133, lines 14 to 22 -- that  25 a person is a member of a house by being born into his  26 mother's house or by adoption into a house, but you  27 also said -- and this is at line 45 to 46 -- that a  28 person may be considered by reason of their father to  29 be Gitksan.  Now, what rights would such a person  30 have?  31 A   The latter, the person who only through his father,  32 would only have the rights of Amna gwood, A-m-n-a  33 space g-w-o-o-d.  34 THE COURT:  I'm sorry?  35 THE WITNESS:  A-m-n-a.  36 THE COURT:  A-m-n-a.  37 THE WITNESS:  Space g-w-o-o-d.  And when the father dies, then  38 that person would have no further rights, unless the  39 family related to the father said that the person  40 could, otherwise they have no rights.  41 MR. RUSH:  42 Q   Okay.  Does that person, the person considered to be  43 Gitksan in the manner you have described, do those  44 persons have the -- any other rights as an adopted  45 person or a person born into a house has apart from  4 6 what you've mentioned?  47 A   No, only if they are adopted. 8984  N. Sterritt (For Plaintiffs)  Re-exam by Mr. Rush  1  THE  COURT:  2  1  3  4  THE  WITNES  5  6  7  8  9  10  THE  COURT:  11  MR.  RUSH:  12  THE  COURT:  13  MR.  RUSH:  14  15  THE  COURT:  16  MR.  RUSH:  17  18  19  20  21  22  23  1  24  MR.  GOLDIE  25  26  27  28  29  30  MR.  RUSH:  31  32  33  34  35  36  THE  COURT:  37  38  ]  39  40  MR.  RUSH:  41  42  43  THE  COURT:  44  MR.  RUSH:  45  THE  COURT:  46  MR.  RUSH:  47  line 14 to  is  9  I'm sorry, Mr. Rush, I didn't get it.  After the  death of the father the rights would be continued only  with the consent of whom?  S:  The house relatives of the father.  If the father  was Fireweed and he died, the -- the son or daughter  has no further rights, unless the brothers and sisters  of the father or close relatives say that that person  has -- can go into that area, but that would be the  only basis.  Mr. Rush, I'm sorry, what page was that?  Yes, it was at page 8253 at Volume 133.  Yes.  Thank you.  And it's -- there are two line references,  22 and line 45 to 46.  Thank you.  Okay.  The next question, my lord, is the one that  to be found in Volume 134.  Now, at page 8282, line  to 20, Mr. Sterritt, you answered this, that you did  not know if the laws and customs of the Gitksan  supersede the laws of the province if the two are in  conflict.  Now, my question to you is what is your  understanding of the extent of the application of  Gitksan and Wet'suwet'en laws?  :  Well, my lord, I'm not sure where that takes us.  The cross-examination was the supersession of the  provincial laws.  My friend is asking a general  question about the application of Gitksan laws without  reference to that.  That's been covered in his  examination in chief.  Well, my view, my lord, on this question was that  there was some ambiguity in the series of questions  that were put to Mr. Sterritt at the time in terms of  the reach of the Gitksan and Wet'suwet'en legal  regime, and it is on that basis that I felt that Mr.  Sterritt should clarify this ambiguity, if he can.  Are you able to solve Mr. Goldie's problem by  confining the scope of your question at least by  minifying it?  Are you talking about all laws of  Canada or are you talking about --  No, just -- the question was posed where there is a  British Columbia law and where there is a Gitksan law,  if the two are in conflict --  Yes.  -- what occurs, does one supersede the other.  Yes.  And my question is -- is aimed at Mr. Sterritt's  understanding of the extent of the reach of Gitksan 3985  Submissions by Counsel  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT:  MR. RUSH:  THE COURT:  MR. GOLDIE  laws, and would they -- would that reach impact either  in terms of people that it would touch or in terms of  area to which it would apply, would it impact on any  provincial laws that were in -- intended to touch the  same people in the same area.  You're talking about provincial laws?  Yes, I am.  All right.  Mr. Goldie.  But, my lord, the witness said very clearly that he  didn't know.  He was asked this question:  "Q    Is it your understanding that the  plaintiffs claim that such laws supersede  the laws of the province if the two are in  conflict?  A    I don't know."  I think my friend is cross-examining his witness now  if he takes him beyond that.  MR. RUSH:  Well, my lord, maybe I'll go to the next question  because I think that it's in a way related to the same  issue, and that is the question of lack of  clarification between two or more answers given by Mr.  Sterritt on this question, and I'll reframe it this  way then.  And this arises out of the question and  answer on page 8284, where Mr. --  THE COURT:  8284?  MR. RUSH:  Yes.  Same volume, 134.  — where Mr. Sterritt said  he hadn't thought about the question of whether the  province could make laws in respect of the resources  of the Gitksan people, and yet later in his testimony  Mr. Sterritt said at 8286 that Canada and B.C. do not  have sovereignty in the Gitksan and Wet'suwet'en area.  And I'll pause here because there is an objection in a  sense.  My question will be is -- can he explain the  two statements, because, in my submission, those two  statements do not sit together.  And again, I say that  this is a matter that clearly falls within my rights  to pursue in terms of clarification.  THE COURT: They could only be brought into harmony, if I can  use that word, if he has thought about it since and  has arrived at a conclusion since he gave his other  answer.  MR. RUSH:  Well, I — I don't think so.  I think that's one  possible explanation, but I think the other possible  explanation is that at the time Mr. Sterritt said that 3986  Submissions by Counsel  1 Canada and B.C. do not have sovereignty in the Gitksan  2 Wet'suwet'en area, so at the time it is clear that at  3 least to that extent he had thought about the  4 relationship of --  5 THE COURT:  Well, I'm not suggesting that he wouldn't have  6 recourse to his prior knowledge, but it seems to me  7 that his answer would have to be one that he has  8 arrived at since that answer was given, wasn't it?  9 MR. RUSH:  Well, I don't think so.  Again, at the risk of  10 repeating myself, I think that, yes, your lordship is  11 right in terms of one explanation for how it is he  12 could now think about that particular answer, but I  13 say that at the time he clearly thought about the  14 sovereignty of Canada and B.C. in relationship to the  15 Gitksan and Wet'suwet'en area, so there was something  16 on his mind at that time, and -- well, it -- we may be  17 playing mind games to try and figure out at what  18 particular time now he would be thinking of that  19 but --  20 THE COURT:  Yes.  Well, I don't mind if you go ahead and ask the  21 question, Mr. Rush.  It may be that there is some  22 ambiguity arising out of the word "supersedes" as  23 well.  It seems to me that it might be useful to have  24 that answered.  Mr. Goldie.  25 MR. GOLDIE:  I point out to your lordship that there was a  26 further question beyond what my friend has read at  27 page 8282.  I say:  28  29 "Q    Do you, as a plaintiff, assert that the  30 laws of the Gitksan supersede the laws of  31 the province if the two are in conflict?  32 A That's fairly complex, and I'm unable to  33 answer that question.  34 Q You have no opinion or you have not given  35 any consideration to that at all?  36 A No, not -- no, I haven't.  Not detailed  37 consideration.  38 Q Well, whether detailed or otherwise, have  39 you given it sufficient consideration to  40 answer the question whether it is your  41 position as a plaintiff in this case that  42 the laws of the Gitksan and the customs of  43 the Gitksan supersede the laws of the  44 Province of British Columbia if the two are  45 in conflict?  4 6 A    No, I haven't."  47 3987  N. Sterritt (For Plaintiffs)  Re-exam by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR. RUSH:  THE COURT  MR. RUSH:  Q  So it seems to me, my lord, that the witness precluded  further cross-examination when he said that he hadn't  given that any consideration.  Now, the issue of  sovereignty is not necessarily an ambiguity.  The  witness may have a view on sovereignty that is  completely different than the question that he hasn't  given any consideration to.  He certainly dealt with  the question of the aspect of the extent of laws.  Well, that's where I say the ambiguity arises because  whether one considers political sovereignty or legal  sovereignty or economic sovereignty, I think they are  all issues that may be entailed within the question --  within the terminology of sovereignty.  I would allow you to ask the question subject to the  obj ection.  THE  THE  THE  THE  THE  All right.  Just let me reframe the question again for  you, Mr. Sterritt.  You indicated in your evidence  that you hadn't thought about the question of whether  the province could make laws in respect of the  resources of the Gitksan people, and then, as you have  just heard me relate, you indicated that Canada and  British Columbia do not have sovereignty in the  Gitksan and Wet'suwet'en area.  My question is can you  explain what you meant by the two statements?  A   The Gitksan and the Wet'suwet'en have sovereignty  within that territory, within their territories.  The  Gitksan-Wet'suwet'en have their laws within those  territories and the power to make laws within those  territories.  And the -- excuse me -- the Gitksan and  Wet'suwet'en laws prevail over the laws of the  province within that territory -- within the  territories.  Q   Is that what you meant by sovereignty or is that what  you mean by sovereignty?  A   Yes.  COURT:  Well, Mr. Sterritt, what do you want me to  understand you mean when you say that the Gitksan and  Wet'suwet'en have sovereignty and the power to make  laws for the territories?  Who makes the laws, the  chiefs, the houses, the clans, the tribal council,  band councils, who?  WITNESS:  The hereditary chiefs.  COURT:  Each for his own territory?  WITNESS:  On behalf of the houses.  COURT:  But by that answer do you presuppose the possibility  of 50 or 60 different laws within -- separate laws for N. Sterritt (For Plaintiffs)  Re-exam by Mr. Rush  1 each territory?  2 THE WITNESS:  No, there are — based on the past there have  3 been -- laws have evolved over time for the Gitksan  4 and Wet'suwet'en, and they -- they are similar laws  5 from one house to the next.  They apply throughout the  6 territory.  And in a similar way laws passed by the  7 Gitksan and Wet'suwet'en would be common throughout  8 the territory.  And there may be unusual circumstances  9 in a given area or situation, but those would have to  10 be dealt with as they arise, but the laws would apply  11 throughout the territory.  12 THE COURT:  Well, what is the mechanism that you foresee for the  13 making of these laws?  Just hereditary chiefs would  14 get together and make a law?  15 THE WITNESS:  The hereditary chiefs would have to — there might  16 be a situation arises where a law has to be developed.  17 In the -- they might outline the parameters for which  18 they wish to consider that law, but in the present  19 times I think they would resort to a secretariat of  20 advisers, who would provide them with information  21 based on which they would make a decision about the  22 law that -- that is to be incorporated.  23 THE COURT:  Well, if, for example, they decide that there is  24 some very choice timber that they want to log in the  25 upper reaches of the Skeena, would the Wet'suwet'en  26 chiefs have a say in that?  27 THE WITNESS:  Not necessarily, but I wouldn't exclude that  28 possibility.  Similarly for the Gitksan and the  29 Wet'suwet'en territories.  They wouldn't necessarily,  30 but it's possible that Gitksan and Wet'suwet'en  31 chiefs, hereditary chiefs, would all be at the meeting  32 in which they laid out the -- the general concerns and  33 general goals and objectives that they want a  34 secretariat to work on and to bring back and advise in  35 terms of the details that they could make a decision  36 on.  37 THE COURT:  I take it there is no such mechanism in place at the  38 moment, no secretariat or equivalent?  39 THE WITNESS:  Well, no.  40 THE COURT:  Other than the tribal council?  41 THE WITNESS:  The closest we come to it is the staff of the  42 tribal council.  But there -- there is a recognition  43 of a need for such a group, and what form that takes  44 officially or otherwise is -- you know -- has not been  45 discussed in detail, but it is such a -- there is a  46 necessity based on all of the information coming in  47 to -- that affects a given goal or direction or 3989  N. Sterritt (For Plaintiffs)  Re-exam by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  circumstance, that there is a need for this  information and advice to come to the hereditary  chiefs for them to weigh in terms of their own  positions and their own -- their own authority and in  relation to their houses?  THE COURT:  Mr. Sterritt, so there will be no unnecessary  misunderstanding, when you say the staff of the tribal  council, do you exclude the elected members when you  say staff?  Some people might say staff means the paid  employees.  Others might say it includes the  elected  members.  What did you intend by saying  staff?  THE WITNESS:  Well, I should point out, I guess, to a certain  extent how it worked while I was president.  The  hereditary chiefs may have had an issue or a problem  that they were working on, and they outlined what they  wanted done, and then as president either I or the  executive director took that to the people that were  available to us within the tribal council staff and  worked out information, took that information back to  the hereditary chiefs, and then they reviewed it  and -- but it doesn't mean that there would be a  tribal council.  There could be a secretariat of some  other form that would fulfil that function in a -- in  a way to be defined yet.  But that would be the  objective of that secretariat.  All right.  Thank you.  THE COURT  MR. RUSH:  Q  Now, Mr. Sterritt, in what you have just described, in  the view that you have just expressed, the  secretariat, what relationship would that have, if  any, to the feast?  A   The -- well, there are feasts right now for a number  of purposes, and we've talked about what they are.  There are also feasts in which the hereditary chiefs  could meet as similar to meeting in -- in parliament,  where they would -- it would not be a feast  necessarily put on by a house.  It could be a feast  put on by a number of hereditary chiefs to lay out  this direction, to lay out what it is they're  concerned about and how it would go forward.  The  houses themselves who are directly affected, if it was  their territory in their area, would have input into  that and advise the hereditary chiefs about their  concerns and their needs, and then they would set out  a direction that would go to a secretariat.  It would  then go back through the same process and probably 8990  N. Sterritt (For Plaintiffs)  Re-exam by Mr. Rush  1 through the house to the hereditary chiefs where they  2 gather.  Those -- that's a possibility.  It's not  3 something that's fixed, but it's one consideration  4 that we've given.  But the house that is directly  5 affected in a given area would play an important role  6 in terms of how they see the future of their territory  7 and how it relates to the other territories and to  8 the -- the Gitksan and Wet'suwet'en territories.  9 MR. RUSH:  Okay.  Thank you.  I want to go to another subject,  10 Mr. Sterritt.  At page 8455 -- I believe it's the same  11 Volume, 134, my lord, line 42 to 43.  I thought it was  12 still 134.  8455.  It's the — just at the back end of  13 Volume 134.  You made reference there, Mr. Sterritt,  14 to three Gitksan terms, two of which I understood.  15 THE COURT:  I'm sorry, Mr. Rush.  I notice it's almost 12:30.  16 You're going into a subject that's going to deal with  17 three parts.  18 MR. RUSH:  No, I — I hope this is a short answer.  19 THE COURT:  All right.  20 THE WITNESS:  Maybe I should, just before we do break, go back  21 to one thing on that other.  If a law was applied by  22 Canada or the province in that area, say, then the  23 house and -- I don't know whether I should use the  24 word assembly of chiefs, but where the chiefs meet  25 would have a veto power over any other laws that may  26 be applied or considered.  They could stop that  27 because of the decisions that the hereditary chiefs  28 and their goals for that given house territory in a  29 given area.  30 THE COURT:  When you say laws of Canada, you mean laws of Canada  31 or British Columbia or just Canada?  32 THE WITNESS:  Yes, either or both.  33 MR. RUSH:  All right.  My question — I'm now directing Mr.  34 Sterritt to 8455.  35 THE COURT:  Do you mind if we do that after lunch, Mr. Rush?  36 MR. RUSH:  I've got Mr. Mathewes coming after lunch, my lord.  I  37 thought I'd be able to ask 12 more questions.  38 THE COURT:  I see.  All right.  Two o'clock.  39 THE REGISTRAR:  Order in court.  Court will adjourn until 2:00.  40  41 (PROCEEDINGS ADJOURNED AT 12:30 P.M.)  42  43  44  45  46  47 8991  N. Sterritt (For Plaintiffs)  Re-exam by Mr. Rush  1 I hereby certify the foregoing to be  2 a true and accurate transcript of the  3 proceedings herein to the best of my  4 skill and ability.  5  6  7 Leanna Smith  8 Official Reporter  9 United Reporting Service Ltd.  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 3992  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  N.J. Sterritt (for Plaintiffs)  Re-exam by Mr. Rush  (PROCEEDINGS RECONVENED PURSUANT TO LUNCH)  THE REGISTRAR: Order in court.  THE COURT:  Mr. Rush.  MR.  RUSH:  Q  THE  MR.  COURT  RUSH:  Q  A  Thank you.  Directing your lordship's attention to  page 8355 at Volume 134, lines 42 to 43.  In the  transcript at that point, Mr. Sterritt, after having  been asked a question in relation to a discovery, a  question was asked of you, line 38.  I'll just read  this :  "Q   And was the answer true?  A   Yes, because for the reasons that I  mentioned possibly in my direct, that an  individual may have appeared to be in an  area but was there by reason of Amna nig  woot, Yugwilaat, or Smna niigeet, and that's  what I am referring to."  Now, Mr. Sterritt, I have heard in your evidence  you refer to Amna nig woot, and Yugwilaat, but I  wonder if you would explain what the meaning of Smna  niigeet or Smna niigeet is, and that's S-m-n-a new  word n-i-i-g-e-t?  :  I'm sorry, n-i --  THE  THE  MR.  THE  MR.  I-g-e-t.  The only other term that I've used in that context of  rights or privileges of one house to another is the  term Amna Yeet, A-m-n-a --  COURT:  I'm sorry?  WITNESS:   A-m-n-a space Y-e-e-t.  That, what you just  spelled and said, doesn't mean anything to me, but  there are three terms in context that I've used and  Amna Yeet is the other one.  That is a right of -- to  certain privileges on your grandfather's land and Yeet  or Yeet is your grandfather, Y-e-e-t.  All right.  Thank you.  Did you get those other spellings, madam reporter?  RUSH:  COURT  RUSH:  Q  The other spellings are A-m-n-a n-i-g w-o-o-t and  Y-u-g-w-i-1-a-a-t.  My next reference, my lord, is at Volume 135 at  8409, and here Mr. Sterritt there were a series of  questions that were asked of you in reference to  Exhibit 17-9-A and this had to do with questions 3993  N.J. Sterritt (for Plaintiffs)  Re-exam by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  A  Q  A  MR. RUSH:  THE COURT  MR. RUSH:  Q  pertaining to the evidence of Mary Johnson.  And at  line 34 the question was asked, and I'm quoting:  "Q   Yes, I'm well aware of that.  But I put  it to you that your recollection in June  last year, 1987, was that the map which has  been marked as Exhibit 17-9-A was before  Mrs. Johnson when you advised her that that  property belonged -- or that territory  belong to Ma-uus.  A   No.  No, no.  I think that we had that  session, as I recall it, that information  came forward, and then between then and  going to trial, a map was produced that  would have been shown to Mary Johnson.  But  I don't -- I don't -- I think that there was  a session between when we sat down and when  we went to trial where we had gone back and  done this map and then brought it in front  of Mary Johnson.  I don't recall that this  map was there.  I'm pretty certain it  wasn't. "  My question is, are you talking there of two  sessions with Mary Johnson?  Yes.  Now, in relation to when her evidence was given, are  you able to advise the court as to the time when those  sessions occurred?  The first session was one or two weeks before she went  on the stand and the second session was, as I  remember, a couple of days before she went on the  stand.  All right.  Mr. Sterritt, I'm going to ask you a  question that arises out of a passage in the  transcript at page 8443 in the same volume, my lord.  :  Eighty --  443.  It's at line 40, and the question that was  there, I should tell you that this is in the context,  Mr. Sterritt, of questions being asked about the house  of Woosimlaxha and the house of Gutginuxw, and I think  that if -- the sense of the question is captured at  line 40 where you were asked by Mr. Goldie:  "Q   That the progression that I've just given  you, we start off with Gitludahl claiming 8994  N.J. Sterritt (for Plaintiffs)  Re-exam by Mr. Rush  1 territory in his own right.  We have Victor  2 Mowatt and Billy Morrison claiming parts of  3 that territory in each in his own name, and  4 your evidence is that there are no members  5 of the house of Woosimlaxha, Victor Mowatt's  6 house?"  7  8 Your answer:  9  10 "A  Well, I was wrong about that."  11  12 And then the question:  13  14 "Q   I see.  Well, that's what I'm trying to get  15 at.  What is the source of the information  16 that led you to change your mind?  17 A   I believe that Abel Brown, possibly Pete  18 Muldoe and Steve Robinson explained the  19 relationships there, but I don't recall  20 exactly."  21  22 And my question is did, in terms of these three  23 people, was this at a meeting of these three people or  24 was this separately?  25 A   It was separately.  2 6 Q   And are you able to put a time frame in reference to  27 this?  28 A   In terms of Steve Robinson I think it was within the  29 past year.  I think for all three of them it's within  30 the past year.  31 Q   All right.  All right.  At page 8446, line 32,  32 questions were asked in the following way and your  33 answers were as follows:  34  35 "Q   Well, I'll come back to my original  36 question, but I -- something you said just  37 now I want to pursue.  What do you mean 'was  38 identified'?  39 A  Well, when we did the first -- the first set  40 of plaintiffs, it was on the same basis as  41 we had before, was that Gwoimt would  42 represent -- would also represent Tsabux and  43 Tsiwuus.  44 Q   Because they were sub-chiefs in her house?  45 A   No, I can't say that we viewed them as  46 sub-chiefs.  I'm not sure about that, the  47 basis for that at the time. 3995  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  N.J. Sterritt (for Plaintiffs)  Re-exam by Mr. Rush  Q Well, they were linked together on the coded  map, and if they weren't sub-chiefs they are  associated with her?  A  Associated, yes."  What did you understand the question "associated  with" and what did you mean by the answer "associated"  with?  A  Well, in terms of association, Tsabux, and that's  T-s-a-b-u-x, and Tsiwuus, T-s-i-w-u-u-s, both sit at  the same table with Gwoimt, G-w-o-i-m-t.  As a matter  of fact, one of those sits right beside Gwoimt and  that's what I meant by associated with.  MR. GOLDIE:  Well, I point out, my lord, that the question was  put in relation to the so-called coded map Exhibit 102  and the names are associated with each other in that  map.  At page 8451 of Volume 135.  MR. RUSH:  THE COURT  MR. RUSH:  Q  Okay.  I'm sorry, what reference again, please?  8451.  And here, Mr. Sterritt, you were asked this  question at line 4:  "Q   And you cannot identify for me the source of  the information that led to the subdivision  of what was originally attributed to her  amongst three houses?  A   The -- be in the summer of 1985, we  conducted a field trip to that area, and the  many geographic features were identified  including the area of Miluulak, or the --  some features that were identified as  Miluulak's -- part of Miluulak's territory,  the area of Blackhat Tom and -- and some of  the features within the area of Nii Kyap.  And that was on the field trip of the summer  of 1985."  Now, Mr. Sterritt, I guess my question is who was  on that field trip?  A   On the trip where we identified those features,  particularly the mountain area of Miluulak, it was  Peter Abraham and Alec Bob and Edward John.  Q   All right.  At page 8456, my lord, Volume 136.  At  question -- line 1, reference is made to a field trip  here and the question was: 8996  N.J. Sterritt (for Plaintiffs)  Re-exam by Mr. Rush  1 "Q   And there are notes of your field trip in  2 the summer of 1985 to which you refer?  3 A   Yes, there are.  4 Q   And who are the people who accompanied you  5 on that?  6 A   On that particular trip there was two sets  7 of -- on one day I went out with two sets of  8 people, in the morning I went out with  9 William Charlie, who is Wawsi Mideek, and my  10 father Neil B. Sterritt, Wii Gaak, and then  11 in the afternoon I went with Peter Abraham  12 and Alec Bob, Alec Bob, and Alec Bob is from  13 the house of Nii Kyap."  14  15 Now, Mr. Sterritt, in terms of the two times, were  16 you talking with about two different field trips or  17 the same?  18 A   That was on one day.  In the morning we went out to an  19 area.  We only had one helicopter.  We went out to an  2 0 area with William Charlie and my dad and Edward John.  21 We returned back to our base at Bear Lake for lunch,  22 and after lunch went out in the afternoon to an area  23 farther to the east with Peter Abraham, Alec Bob, and  24 Edward John and myself.  25 Q   Now, Mr. Sterritt, this is in reference to questions  26 that were asked of you about Exhibit 102 and in  27 particular territory attributed to Gwoimt, Smaex and  28 Tsiiwus on that map, and the question is in relation  29 to lines 19 to 26.  This is at page 8453 of Volume  30 136, and Mr. Goldie asked you, and I quote:  31  32 "Q   Who claimed that territory in October 23rd,  33 1984?  The territory that stretches south  34 from Thutade Lake to Bear Lake, and which is  35 identified on Exhibit 102 with the letters  36 and numerals 1A5, and the 5 under the code  37 is identified as Gwoimt, Smaex and Tsiiwus.  38 I am asking you who claimed that territory  39 on October 23rd, 1984."  40  41 And the answer that you gave:  42  43 "A   That area was a territory associated with  4 4 Smaex."  45 Q   Who is not referred to in the statement of  46 claim?  47 A   No. 3997  N.J. Sterritt (for Plaintiffs)  Re-exam by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  A  29  Q  30  A  31  32  Q  33  34  35  A  36  THE COURT  37  MR. RUSH:  38  THE COURT  39  MR. RUSH:  40  Q  41  42  43  44  A  45  46  Q  47  A  Q   So, therefore, Gwoimt was claiming that  territory on behalf of one of her associated  chiefs?  A   Yes."  And then at 8457 in relation, I believe, to the  same territory, the question was asked at line 13:  "Q   And the information upon which you  attributed the territory to Kathleen  Wale.  And I think we understand that to be Gwoimt.  " 1984 proved to be wrong?  A   No.  I pointed out, I think we have gone  over this a number of times this week, that  the first statement of claim identified a  number of hereditary chiefs who would  represent a certain number of people and all  of the territories.  Gwoimt in that case was  associated with Smaex, Tsiiwus and Tsabux  and for that reason Gwoimt's name appeared  in that area.  But it was not territory of  Gwoimt."  And my question is, whose territory was it?  At that time?  Well, at that time and today?  That area south of Thutade Lake is the area of Nii  Kyap, Tsabux, and Miluulak as shown on map 9 A.  Okay.  Just so that there's no misunderstanding about  my question, I was asking about the time of October  the 23rd, 1984?  Nii Kyap and Tsabux and Miluulak.  :  What was the date you just gave Mr. --  October 23rd, 1984.  :  What's the date of the writ?  October 23rd, 1984.  All right.  Mr. Sterritt, would you just go to 9 A and point  out those three territories which you've just made  reference to?  Thutade Lake is right here and Nii Kyap, Miluulak and  Tsabux.  I'm sorry, I didn't see.  Thutade Lake, Nii Kyap, Miluulak and Tsabux. 399?  N.J. Sterritt (for Plaintiffs)  Re-exam by Mr. Rush  1 Q   Now, I refer you to a passage that appears at 8465, my  2 lord.  This is the same volume.  This really arises at  3 line 5, I suppose, and it's -- I'm quoting:  4  5 "Q   That's the one that was presented to the  6 federal government?  7 A   Yes.  8 Q   Now, in this book, there is a map which --  9 MR. RUSH:  Which book are you talking about?  10 MR. GOLDIE:  11 Q   The book dated April the 20th, 1987,  12 entitled -- well, one title is Territory of  13 Goohlaht, and then under another tab there  14 is territory of Geel.  Now, is that a map on  15 which you have entered some features?  16 A   Yes, it is. "  17  18 Now, Mr. Sterritt, do you recall the book that is  19 being referred to in that passage?  2 0 A   Yes, I do.  21 Q   What is that book?  22 A   During my examination for discovery, Mr. Goldie asked  23 me to prepare a document book that showed the  24 accumulated information that I was relying upon to --  25 with respect to a given house territory and he asked  26 that it include information for a northern  27 territory -- or a Gitksan territory, pardon me, and a  28 Wet'suwet'en territory, and so I prepared -- and I  29 think he recommended that it be Geel, G-e-e-1, and  30 Goohlaht, G-o-o-h-l-a-h-t, and that's what I proceeded  31 to do.  32 Q   All right.  And which was the -- I take it that  33 Goohlaht was the Wet'suwet'en territory and Geel was  34 the Gitksan territory?  35 A   Yes.  36 Q   And what happened with that book?  37 A   That was turned over to the Province and I don't  38 recall on what date that was done.  It was either in  39 March of '87 or after March of '87.  40 Q   Still on Volume 136, I direct you now, Mr. Sterritt,  41 to a question and an answer on page 8499 beginning at  42 line 38, and this is a question that goes like this:  43  44 "Q  Yes.  I said is that where matters now stand  45 and I understood you to say yes.  Are there  46 notes of the meetings that you have referred  47 to in October 1984?" 8999  N.J. Sterritt (for Plaintiffs)  Re-exam by Mr. Rush  1  2 I should say contextually, Mr. Sterritt, these are  3 notes of meetings with the Nishga, and the question  4 was:  5  6 "Q   Are there notes of the meetings that you  7 have referred to in October 1984?"  8  9 And your answer was:  10  11 "A   I am not sure about that."  12  13 And then Mr. Goldie says:  14  15 "MR. GOLDIE:  Well, I ask my friend to produce  16 them if there are."  17  18 And then at two o'clock, page 8501, at line 7, my  19 lord, Mr. Goldie asked the following:  20  21 "Q  My lord, I wish to put before the witness  22 tab 5 of the document book of Mr. Solomon  23 Marsden.  It's been marked Exhibit 454 for  24 identification, my lord.  The Registrar's  25 mark is reserved for 454.  26 Mr. Sterritt, do you identify that as  27 notes in your handwriting?  2 8 A   Yes, I do.  29 Q   And what event, please, or what period, I  30 should say?  31 A   That is the notes that I made at the Nisga'a  32 feast at Canyon City, I believe, October  33 27th of '84. Yes."  34  35 Now, Mr. Sterritt, I'm just showing you my copy of  36 the first page of that.  Just ignore all the -- I'm  37 directing your attention to the top.  38 A   Yes.  39 Q   All right.  My question to you is were there notes  40 that you made of other feasts with the Nishga in  41 October of 1984 other than these ones that are dated  42 October 27th, 1984?  43 A  Well, there are notes that go with that page.  There's  44 a series of notes that go with that page that follow  45 it.  46 Q   Yes.  47 A   Other than that, no. 9000  N.J. Sterritt (for Plaintiffs)  Re-exam by Mr. Rush  1 Q   The import of my question was were the notes that you  2 refer to as notes that were taken in October of '84  3 the ones that were subsequently shown to you by Mr.  4 Goldie?  5 A   Yes.  6 Q   Now, my lord, I want to direct the witness' attention  7 to a passage in Volume 137, and this passage is to be  8 found at 8536.  It begins at 8535 and here, Mr.  9 Sterritt, the context is that a passage from the  10 expert opinion report filed by you on June the 28th,  11 1988, was read to you by Mr. Goldie at -- beginning at  12 the bottom of 8535.  And at page 8536, at line 3, in  13 part he read:  14  15 "In March, 1987 I initiated a verification  16 process for most territories to refine my  17 definition of the chiefs' boundaries on maps  18 and in written descriptions."  19  20 And then the question that followed that at line  21 27 was, and I'm quoting the question now:  22  23 "Q   Well, let me suggest to you that you  24 commenced this verification process after  25 your examination for discovery in that  26 month; do you recall that?  27 A   Yes, I remember the examination for  28 discovery, but I began in December of 1986  29 and did a review of the external  30 territories, and I don't know whether this  31 is referring to the internal territories or  32 not.  I don't know whether that's the  33 distinction here.  I don't recall."  34  35 Now, when you refer to most territories, were  36 there territories that you had not initiated a process  37 of verification for at that time?  38 A   Yes.  39 MR. GOLDIE:  Well, excuse me, what is "at that time"?  40 MR. RUSH:  Well, whatever the time was in the question.  41 MR. GOLDIE:  Well, the time in the question related to the  42 previous questions which were after his examination  43 for discovery in March of 1987.  44 MR. RUSH:  Well, the passage I read was:  45  46 "In March, 1987 I initiated a verification  47 process for most territories to refine my 9001  N.J. Sterritt (for Plaintiffs)  Re-exam by Mr. Rush  1 definition of the chiefs' boundaries."  2  3 That's the time that I'm referring to, March of  4 1987.  5 MR. GOLDIE:  That's it.  Thank you.  6 THE WITNESS:   Yes.  The territories that would not be included  7 when I refer to "most" would be those that I've  8 already done on the external boundaries that I had  9 done between December and then.  10 MR. RUSH:  11 Q   All right.  Now, Mr. Sterritt, you were asked a  12 question pertaining to a statement that was attributed  13 to you in a Victoria symposium in December of 1983,  14 and a passage was read from that by Mr. Goldie, and  15 perhaps to get the context I should simply read the  16 question.  This begins, my lord, at 8545 at line 35,  17 and the question is as follows:  18  19 "Q   The second sentence requesting -- well, I  20 should read the first.  21 'Other evidence of title today is the  22 chief's knowledge of the exact locations  23 of fishing sites and the hunting  24 territory boundaries.  We have all of  25 that recorded on our maps now.  We, the  26 Gitksan-Carrier people, know our  27 boundaries.  They are finite; they are  28 22,000 square miles.  Our boundaries  29 follow the height of land.  The  30 boundaries are rivers and lakes and  31 sometimes, when our people sing their  32 songs telling of our territory, they  33 sing about those rivers, those lakes,  34 and other things that tell how that land  35 ended up being the property of a  36 particular chief.'.  37 Now, my suggestion to you..."  38  39 And this is Mr. Goldie questioning you:  40  41 " that as of December 1983 you were of  42 the opinion that any extrapolation that was  43 required between salient features was to be  44 made following a natural boundary such as a  45 height of land, rivers or lakes?  46 A   Oh, I think you'd be wrong in that.  This  47 was a -- there was no place to get into 9002  N.J. Sterritt (for Plaintiffs)  Re-exam by Mr. Rush  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  detailed description of boundaries.  I think  by that point I was certainly aware that --  of boundaries going along trails because of  a particular story I'd been told about a  snare that was set on a trail that was a  boundary between two houses, and that if the  bear that entered the snare fell and died on  one side of the trail, then it belonged to  the hereditary chief on that side.  If it  fell and died on the other side, then to the  other chief, and they each respected that.  So I was certainly aware of trails then."  My question to you, Mr. Sterritt, is who told you  the story that is referred to in that answer?  A   There was several people who told me about that, but  Steve Robinson was one, Spookw, S-p-o-o-k-w.  The  other was Gwiiyeehl, G-w-i-i-y-e-e-h-1, and that's  Chris Skulsh.  And as I recall there's a -- I think  there's a note about that, that Chris Skulsh -- when  he told me about it.  Q   All right.  A  And he was referring to his boundary.  MR. RUSH:   All right.  Thank you.  Now, my lord, I want to  refer Mr. Sterritt to a passage at 8552, that's Volume  137.  It begins at line 6 and I think goes to line 16.  "Q   Well, everything you know about the Gitksan  is that you -- a member of the Gitksan can  only be a member of one house; isn't that  right, what you do know?  A   But in this case I don't know we're talking  about two different houses."  MR. GOLDIE:  I don't "think" we're —  MR. RUSH:  Q   Excuse me.  Thank you.  Let me start again, Mr.  Sterritt.  "A   But in this case I don't think we're talking  about two different houses.  Miluulak and  Haiwas are -- have been brothers.  They are  very close houses.  I don't know whether  we're talking about -- in the case of these  interrogatories whether they're both dated  the same time or whether one is submitted  later.  I have no idea.  I don't know what 9003  N.J. Sterritt (for Plaintiffs)  Re-exam by Mr. Rush  1 comparison you're drawing there."  2  3 Now, Mr. Sterritt, you didn't answer that  4 question, and my question to you is can a member of  5 the Gitksan only be a member of one house?  6 A   To my knowledge, yes, except that there are exceptions  7 to this extent that I'm aware of:  A person who's in  8 one house, let's say from Kispiox, for various reasons  9 may have helped a person either in that village or in  10 another village from another house, and when I say  11 another house but of the same clan, like let's say two  12 fireweed houses, and that a head chief from the house  13 let's say from Kitwanga, might honour that individual  14 or show his gratitude and appreciation to that  15 individual by giving that person a name from their  16 house.  I can't tell you whether that means that  17 person ends up in that other house, but certainly they  18 have a name from that house and it's -- it at least is  19 an honorary name in that house.  But I can't go any  20 farther than that.  They are -- that's what I can say  21 at this point.  22 Q   All right.  Now, still in the same volume, my lord, at  23 page 8570 and line 30, you were asked these questions,  24 Mr. Sterritt, and I think this puts it in context:  25  26 "Q   Well, we have it then that the first  27 drafts...",  28  29 And they're meaning the first drafts of the  30 territorial affidavits.  31  32 "...were prepared not from the information given  33 you by the deponent, but from the  34 information that you had gathered up in the  35 course of your research?  36 A   Yes, that's right, and on review with the  37 hereditary chief that was when the -- if  38 work that I had done was -- if I had  39 misunderstood something, then the hereditary  40 chief corrected me.  41 Q   Yes.  And a good deal of the information  42 which you have gathered and which would be  43 reflected in the draft came from living  44 witnesses?  45 A   Yes, as well as deceased, yes."  46  47 Now, my question is when you agreed with Mr. 9004  N.J. Sterritt (for Plaintiffs)  Re-exam by Mr. Rush  1 Goldie that the information that you had gathered in  2 the course of your research, when you had agreed with  3 that, what information were you referring to?  4 A   There I was referring to information that had been  5 given to me by many of the deponents and other  6 information from other hereditary chiefs.  It was the  7 information of the Gitksan people, hereditary chiefs,  8 and a large part of it was the information of the  9 deponents in the affidavits.  10 Q   Now, at pages 8605 and 8606, Mr. Sterritt, you were  11 directed to certain passages in the transcript of the  12 audio tape of your interview with Mr. Walter  13 Blackwater in 1983, May 22nd, 1983, and at the bottom  14 of page 8605 at line 35 you were directed to certain  15 passages, and I'll read those to you if you don't  16 understand the context, but at 8606 you made reference  17 to, and I'm quoting your answer to a question:  18  19 "Q   All right."  20  21 This is at line 28, my lord.  22  23 "A   I think he may be saying that he doesn't  24 remember it, but with the trip with Nancy  25 and David, they identified the mountains in  26 that area and between -- and it's a -- it's  27 a way they like to work when reviewing this  28 information and going out in the field, but  29 they identified that mountain as Loot guu  30 hanak."  31  32 And then you spelled it.  33  34 "Q   Much later?  35 A   On the trip that Nancy and David and Walter  3 6 and I went on.  37 Q   1986?  38 A   Yeah.  39 Q   Yes.  Now, casting your mind across the Nass  40 to the Niist territory..."  41  42 That goes on to another issue.  43 My question is the trip that you're there  44 referring to, I think you -- is that a field trip that  45 you took with Walter Blackwater, David Blackwater, and  46 Nancy Supernault?  47 A   Yes, it was in September of 1986, and just for the 9005  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  N.J. Sterritt (for Plaintiffs)  Re-exam by Mr. Rush  Submissions by counsel  reporter it was -- the name you gave should be spelled  L-o-o-p space G-u-u space h-a-n-a-k, Loop Guu hanak.  Q   All right.  My question is, did you -- did you take  notes during the course of that trip?  A   Yes, I did.  Q   And did you also take photographs during that trip?  A   Yes, I did.  MR. RUSH:   Now, I'm showing you, Mr. Sterritt, a typed script  called "Helicopter Recce September 6th, 1986".  I'm sorry, helicopter?  THE COURT  MR. RUSH:  Q  A  THE COURT:  MR. GOLDIE  Recce, R-e-c-c-e.  Recce.  I was wondering how it was spelled.  My lord, I object to the introduction of these  by  notes at this time.  That wasn't the purpose of the  cross-examination.  The cross-examination was a  clarification of the transcript.  THE COURT:  What have you got there, Mr. Rush, a series of  photographs?  MR. RUSH:  No, these are a series of notes taken, I presume,  Mr. Sterritt during the course of this helicopter  reconnaissance.  Now, Mr. Sterritt made reference to  these notes on several different occasions.  He made  reference to them at page 8633, at 8666, 8667, and  8669, and this was in the context, I should point out  to your lordship, that my learned friend was  endeavouring to put notes to Mr. Sterritt -- well, and  he did extensively cross-examine Mr. Sterritt on notes  of an interview with Mr. Blackwater, May 22nd, 1983,  and then he related those notes to Mr. Walter  Blackwater's affidavit which was sworn in 1988 I  believe.  And the suggestion was that there was no  intervening information from Mr. Walter Blackwater,  and in the passages that I have referred you to Mr.  Sterritt identified on several occasions that he went  to the territory that was the subject matter of the  cross-examination and went on a field trip with Mr.  Walter Blackwater and took notes, and I simply am  seeking to put these notes before him and to have him  identify the notes.  MR. GOLDIE: Well, my lord, I made no suggestion that these  notes didn't exist. It's quite clear the witness  stated that he went on a trip in 1986, but that --  that doesn't emerge out of the cross-examination.  It's extraneous to the cross-examination. It was  volunteered by the witness.  My cross-examination was 9006  Submissions by counsel  1 directed entirely to eliciting from the witness  2 information with respect to the tape of May 1983.  3 MR. RUSH:  Well, my lord, if I can refer you to a passage at  4 page 8667 in which my learned friend asks this  5 question:  6  7 "Q   Yes.  And that change could not have  8 occurred as a result of any information  9 Walter received from those who he has listed  10 as his informants in his affidavit of May  11 1988?  12 A   I also pointed out that the changes were a  13 result of Walter sitting down and thinking  14 more deeply about the nature of the  15 ownership and those territories.  Changes as  16 a result of some of the extrapolation that I  17 did also some of the -- possibly some  18 misunderstanding that I had based on limited  19 information, but with the field trip we got  20 a lot more detailed information and were  21 able to work more precisely thereafter."  22  23 MR. GOLDIE:  Exactly.  The whole purpose of my cross-examination  24 was directed to those who Mr. Blackwater listed as his  25 deponents.  26 THE COURT:  Yes.  Well, I don't think so, Mr. Rush, I'm sorry.  27 The fact that they're notes doesn't really add much to  28 it.  In cross-examination one's able to put notes and  29 things like that, and witnesses in chief it isn't so  30 easy.  But if you put away or put aside the notes, the  31 question is could you ask this witness to give all  32 this evidence in re-examination, and my present sense  33 of it all is that it wouldn't be permissible  34 re-examination, being more to buttress what he said in  35 chief rather than to explain anything he said in  36 cross-examination.  He said in cross-examination that  37 Walter Blackwater had given this matter a lot of  38 thought and took field trips and that sort of thing.  39 I think you could explore that, but to go into the  40 details of it is to introduce original evidence that  41 doesn't seem to me arises or is made admissible by the  42 cross-examination.  43 MR. RUSH:  Well, my lord, I simply say in response to that that,  44 I mean, here on four separate occasions during the  45 course of his examination, close examination on a  46 comparison of two sets of information, one in May of  47 1983, the other in 1988, I believe, Mr. Sterritt 9007  Submissions by counsel  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  explains how it is that he came by further  information.  And in terms of your understanding of  what that information is, and whether or not that  would assist you in determining the effect of the  accumulative process that was underway that led to Mr.  Walter Blackwater's statements in his affidavit and  subsequently in his cross-examination on that  affidavit, I think these notes are pertinent and  relevant.  THE COURT:  Well, I don't think in the first place the notes  would be admissible, but apart from that, I don't have  any difficulty if you were to -- if you were to  explore with Mr. Sterritt what opportunities Mr.  Blackwater had in the intervening period to equip him  to the results or conclusions he reached after the  consideration that the witness has already described  he gave or must have given to his evidence.  But I think the -- that doesn't really meet Mr.  Goldie's point, which I don't pass on now is whether  it does any good or not as to whether it was related  just to the source of his information.  That's a  separate matter upon which I will want to have the  assistance of counsel, but at the moment I don't think  at this stage the cross-examination allows you to just  put all those notes in.  You couldn't do it in chief  and I don't think you can do it in re-examination,  unless -- unless Mr. Goldie put some notes -- but I  gather he didn't put any of those notes to the  witness; you're not suggesting that?  MR. RUSH: No, I'm not suggesting that he put those notes to the  witness.  THE COURT: Then I don't think you can put the notes in. I don't  think you could have put the notes in in chief either.  They don't have -- the situation doesn't have the same  leeway that would be the case in cross-examination.  Very well.  Mr. Sterritt, this field trip, did this  occur on one day or over several days?  There was a field trip on September 6th, 1986, and  another one on September 7th, 1986.  We did not go to  the same areas.  They were not for the same purpose,  but Walter and David accompanied me on both days.  The  field trip with Nancy was the one -- and Walter and  David, was on September the 6th, 1986.  MR. RUSH:   All right.  I wonder if you can just go to map 9 A  and if you wouldn't mind explaining to his lordship --  I'll put this in a more convenient place for your  MR.  RUSH:  Q  A 900?  N.J. Sterritt (for Plaintiffs)  Re-exam by Mr. Rush  1 lordship.  2 THE COURT:  That's all right.  I enjoy the exercise.  3 MR. RUSH:  4 Q   Just if you wouldn't mind showing to his lordship  5 where you travelled with Mr. Walter Blackwater on the  6 date of this particular field trip?  7 A  We flew from Hazelton almost directly north along the  8 Kispiox River and then across to the Skeena and up the  9 Skeena past Kuldo, continued up and landed on the  10 mountain just south of Slamgeesh Lake -- pardon me,  11 actually it's immediately west of Slamgeesh Lake,  12 that's spelled S-1-a-m-g-e-e-s-h.  We did some work in  13 that area and then we flew to Gitangas, which is  14 almost south and then east.  We did not land.  We went  15 to Gitangas, turned around, and flew back and landed  16 north-west of Slamgeesh Lake, actually directly north  17 of Blackwater Lake.  18 Q   All right.  If I can just ask you to pause there.  The  19 first two points are in the territory of Gwinin Nitxw  2 0              on map 9 A?  21 A   Yes.  22 Q   And the second -- and the third point where you landed  23 is in the territory Wii Minosik on that 9 A?  24 A   Yes.  And then we flew north from there and landed on  25 Devil's Claw Mountain near the north end of Geel's  26 territory, G-e-e-1.  From there we flew almost  27 directly west and then turned and came south down Xsi  28 Luu Wit Wiidit, X-s-i space L-u-u space W-i-t space  29 W-i-i-d-i-t, which on the map is Kotsinta Creek,  30 K-o-t-s-i-n-t-a.  31 Q   And whose territory is that shown on this map?  32 A   Niist's territory, N-i-i-s-t.  33 THE COURT:  You also showed something in Gyloget's territory?  34 THE WITNESS: I was too far over with my pen.  35 THE COURT:  I see.  36 THE WITNESS:   We flew out to here and then down this creek and  37 then across up Vile Creek, V-i-l-e, to Niist's  38 territory, and Canyon Lake, and then on back down to  39 Hazelton.  40 THE COURT: Excuse me, Mr. Rush, please.  41 MR. GOLDIE:  That's as described in Exhibit 679, my lord.  42 THE COURT:  67 9.  43 MR. GOLDIE:  Yes.  That's the route of the helicopter trip.  4 4 MR. RUSH:  45 Q   Thank you.  Now, I take it -- or did Mr. Walter  46 Blackwater provide you with certain information during  47 the course of that helicopter flight? 9009  N.J. Sterritt (for Plaintiffs)  Re-exam by Mr. Rush  Submissions by counsel  1 A   Yes.  Walter, Nancy, and David.  2 MR. RUSH:   And can you describe the type of information  3 provided to you by Mr. Walter Blackwater?  4 MR. GOLDIE:  Well, I object to that, my lord.  What is the point  5 of that?  It is hearsay, and if it is embodied in Mr.  6 Blackwater's affidavit, it is unnecessary.  7 MR. RUSH:  Well, my lord, again I'm trying to show that there is  8 an event that -- or at least one event that occurred  between the May 22nd, 1983 and the signing of the  affidavit, and I'm not asking Mr. Sterritt to go into  the statements made by Mr. Walter Blackwater.  I'm  simply asking him what kind of information he was  provided with during the course of that trip, and in  my submission it's not offending the hearsay rule for  you to know what the nature of the information was.  I  think yes, it might be if it were -- if I were asking  him chapter and verse about, if he could give it,  about what was provided to him by Mr. Walter  Blackwater.  THE COURT:  I think you're in the friendly bite of an exception  to the hearsay rule.  I think it is permissible for  the witness to describe for this purpose the kind of  investigation or exploration or discussions they  shared or have reported, without giving the  discussions verbatim because they do not prove the  truth of anything like in the past in that connection,  but would be relevant to the question of -- or  possibly relevant to the question of why Mr.  Blackwater's evidence appears to be as it's been.  MR. GOLDIE:  The second leg of my objection, my lord, stems from  the fact that my cross-examination was entirely  directed to the affidavit which Mr. Blackwater swore,  and I put it to the witness, this is at page 8668:  "Q   Just agree with me or disagree with me that  the affidavit purports to be based upon  information received from people who are now  or at the time of the swearing of the  affidavit were dead?  A   Yes.  Q   And all of whom who were in fact dead before  1983."  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT:  Well, as I said, I think that is another point that  I will have to consider in due course.  At the moment  it seems to me that it is, to put it at its lowest,  arguable that the evidence has some additional 9010  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  N.J. Sterritt (for Plaintiffs)  Re-exam by Mr. Rush  Submissions by counsel  levels -- or relevance irrelevant to that question.  MR. GOLDIE:  If —  THE COURT:  The importance of that question is probably a more  polite word.  MR. GOLDIE:  I object, my lord, to any attempt to add to Mr.  Walter Blackwater's affidavit, which on its face  purports to be based on information from dead people,  any information that he got from Mr. Sterritt or any  other --  THE COURT:  The judgment I have just pronounced does not permit  Mr. Rush to adduce evidence from this witness about  anything that Mr. Blackwater -- yes, Mr. Blackwater  may have said, and to that extent does not add to or  subtract from, vary or refute, anything that's in his  affidavit.  MR.  RUSH:  Q  A  A  Q  A  MR. RUSH:  THE COURT  Well, nor is this the object of the question.  But,  having in mind his lordship's caveat, Mr. Sterritt,  can you say in general terms what information was  relayed to you during the course of this field by Mr.  Walter Blackwater, and I'm not asking you to give any  details or to relate any specific information  regarding features or whatever?  The main information given to me by Walter Blackwater  during that trip was the identification of mountains,  creeks, lakes, and to some extent boundaries, but  primarily the topographic features, which I would work  with him later when I got back from the field.  And was this in relation to the area that was covered  as you described on map 9 A?  Yes.  And did you say, or do you recall if you took  photographs during this?  I took photographs throughout that trip and they're in  the -- in the binder -- binders, one of the binders  that we identified last June.  All right.  All right.  Thank you.  I'll gather up  those.  :  We'll take the afternoon adjournment now, Mr. Rush.  THE REGISTRAR: Order in court.  This court will recess, 9011  N.J. Sterritt (for Plaintiffs)  Re-exam by Mr. Rush  Submissions by counsel  1  2 (PROCEEDINGS ADJOURNED AT 3:00 p.m.)  3  4 I hereby certify the foregoing to  5 be a true and accurate transcript  6 of the proceedings herein to the  7 best of my skill and ability.  8  9    10 Tanita S. French  11 Official Reporter  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 9012  N. Sterritt (For Plaintiffs)  Re-exam by Mr. Rush  Submissions by counsel  1 (PROCEEDINGS RECONVENED PURSUANT TO THE AFTERNOON BREAK)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Mr. Rush.  5  6 MR. RUSH:  7 Q   Thank you, my lord.  I refer the witness to a passage  8 on the bottom of 8697, the top of 8698, Volume 138.  9 Here the context, Mr. Sterritt, is with reference to  10 questions being asked of you concerning Pacific and,  11 in particular, comments attributed to Mrs. McDougall,  12 and at the bottom of 8697 the question was asked:  13  14 "Q    Well, she's not agreeing with that, is she?  15 She's saying it belongs to people who are  16 plaintiffs in this case.  I don't mean  17 she's identifying them as plaintiffs, but I  18 mean she's identifying people who are  19 plaintiffs, and she says the territory  20 belongs to them?  21 A    Well, it is -- that's how it appears here,  22 but it is Kitselas territory, they are  23 related, they're closely related, and --  24 but it is not Gitksan territory, but they  25 do have rights to go there.  2 6 Q    But it was you who decided or came to the  27 conclusion that it was not Gitksan  28 territory, not Mrs. McDougall?  29 A    No.  That's not true.  There's other  30 information.  The boundary, other people  31 have pointed out the boundary along what is  32 known as Hakhl Yee, H-A-K-H-L space Y-E-E.  33 That's the mountain just on the north side  34 of Legate Creek, and the boundary runs  35 along there, and there was a meeting I  36 think in 1976 where that was discussed as  37 well, that the uncertainty about Legate  38 Creek, but I think in that meeting Jessie  39 Sterritt was there and she pointed out that  40 it should be Kitselas.  It's not -- no.  41 It's not something that I was pointing  42 out."  43  44 My question, Mr. Sterritt, is apart from Jessie  45 Sterritt, were there any other people that pointed out  46 the boundary in that area, as you have made reference  47 to in that passage? 9013  N. Sterritt (For Plaintiffs)  Re-exam by Mr. Rush  Submissions by counsel  1 A   Yes, Art — Art Matthews Sr. and Jr., Stanley  2 Williams.  I don't recall who else.  3 Q   All right.  Thank you.  Now, in reference to Volume  4 139, my lord, at page 8702 to page 8703, at the bottom  5 of 8702, Mr. Sterritt, you made reference to the name  6 of Niista Huuk, N-i-i-s-t-a H-u-u-k, and this was in  7 reference to a question asked about you -- asked of  8 you rather -- concerning Stanley Williams and his  9 relationship to Niista Huuk.  And at the top of page  10 8703 you said:  11  12 "A    But he -- he was very conscious of his  13 Temlaham origins, this Niista Huuk.  He  14 maintained his relationships with his --  15 well, I guess in some ways distant  16 relatives, his relatives in Kitwanga, the  17 Fireweed, as well as in Kispiox.  And that  18 would be consistent with what my aunt was  19 saying, Edith McDougall.  And he maintained  20 his relationships -- some relationships  21 with Stanley Williams.  Now, Stanley did  22 help with that burial, or did conduct the  23 burial.  I'm not sure that would entitle  24 Stanley to some rights there, but Stanley  25 decided he wasn't going to pursue them" --  26  27  28 to pursue that rather --  29  30 "and that's what he was saying here."  31  32 Now, what did you mean when you said, "...he was  33 very conscious of his Temlaham origins, this Niista  34 Huuk"?  35 A   Niista Huuk lived at Temlaham before the snowfall.  36 Q   What period of time are you talking about, Mr.  37 Sterritt?  38 A   Hundreds of years ago.  A long time ago.  39 Q   All right.  40 A  And Niista Huuk and his family migrated down along the  41 Skeena and eventually to Kitselas.  Others migrated at  42 the same time.  Gwis Gyen and other members of his  43 family migrated to Kitsegukla.  And Gwiiyeehl,  44 G-w-i-i-y-e-e-h-1, they also migrated.  45 MR. GOLDIE:  Well, my lord, I don't like to interrupt, but this  46 is the witness who stated on his examination for  47 discovery that he was not familiar with the history of 9014  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  N. Sterritt (For Plaintiffs)  Re-exam by Mr. Rush  Submissions by counsel  houses.  He didn't  of it.  have information.  He was ignorant  MR.  RUSH:  Q  He wasn't  well, I wouldn't want the  A  I think  that's a misstatement of the evidence.  He said he  wasn't knowledgeable of the history in detail.  Mr. Sterritt, just what you've said here, what's  the source of this information you're talking about?  There is a -- a volume -- two volumes of information  that was provided by Niista Huuk himself, Walter  Wright.  It's on the public record.  It's called "The  Men of Madeek" and also "The Wars of Madeek."  And  this was information that Walter Wright dictated or  provided to a man by the name of Will Robinson, who  was non-Indian, and he sat down and told him all of  these histories and these migrations, and that's --  that's where the source of the information in terms of  the migrations and the relationships of Niista Huuk  come from as well as information in the Barbeau-  Beynon files in terms of Gwiiyeehl and Niista Huuk.  Well then, you're saying that the source of your  statement that he was aware of and conscious of his  origins of Temlaham is published information, is it?  THE WITNESS:  Yes.  THE COURT:  What were you going to tell me where Gwiiyeehl  migrated to?  THE COURT:  THE WITNESS  THE COURT:  THE WITNESS  THE COURT:  THE WITNESS  THE COURT  MR.  RUSH:  Q  Gwiiyeelh, G-w-i-i --  Yes.  -- space y-e-e-h-1.  Yes.  He ended up in his migration in Kitselas, lived  there for a time, and then he travelled on back up the  Skeena to farther up the Kispiox River than Kispiox,  about 40 miles up the Kispiox, and then made his way  on back down to Kispiox.  And the Barbeau-Beynon files  are -- there is a lot of information in there about  that and also --  That's enough.  Thank you.  I was just curious to  finish my sentence.  Thank you.  All right.  Thank you, Mr. Sterritt.  I want to refer  you now to a passage at 8723 of the same transcript.  First, I guess, beginning at the bottom of 8722, and  I'm quoting a question of Mr. Goldie's, and he is  dealing with a number of things, and he's referring, ]  believe -- let me see -- well, I'll begin with the  question earlier.  Question at line 31: 9015  N. Sterritt (For Plaintiffs)  Re-exam by Mr. Rush  Submissions by counsel  1  2 "Q    Now, as I say, I had some trouble in  3 determining just why all these changes  4 occurred, but I now want to refer you to a  5 note apparently of a meeting of yours with  6 Mr. Stanley Williams in 1987, and I refer  7 you to tab 16 in the brown book, and it's  8 the second item.  Is that a note of a  9 conversation that you had with Mr. Williams  10 on January 21st, 1987?"  11  12 And you agreed that it was.  And then the question:  13  14 "Q    And he is dealing with a number of things,  15 but my reference is to the last two lines,  16 and that starts off with the word  17 'Aaxsqwit Mountain,'"  18  19 A-a-x-s-q-w-i-t Mountain,  20  21 "is that right?  22 A     Yes.  23 Q     And that's in a particular territory, isn't  24 it?  25 A     Yes.  26 Q     Can you identify that territory on one of  27 our maps, please, just to give his lordship  28 an idea of where it is.  29 A     Kitwanga is located right here, and this  30 area just west of Kitwanga is the area we  31 are talking about.  32 Q     Right.  And it is -- the territory is  33 identified by that mountain feature, is it  34 not?  35 A     Yes.  36 THE COURT:  And in whose territory is it?  37 A     Yal's.  Y-A-L."  38  39 And my question is who informed you that that was the  40 territory of Yal's?  41 A   Stanley Williams, Phillip Turner.  I think perhaps Eli  42 Turner as well.  Arthur Matthews Sr.  I don't recall  43 who else.  44 MR. RUSH:  Thank you.  Mr. Sterritt, you were directed to  45 Exhibit 384, which is a document entitled "The  46 Gitksan-Carrier Tribal Council Request For Funding For  47 Research By Gitksan-Carrier Land Claims Committee To 9016  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  N. Sterritt (For Plaintiffs)  Re-exam by Mr. Rush  Submissions by counsel  Office Of Native Claims."  I believe this was  yesterday by Mr. Goldie.  Yes.  And a passage was --  on this -- in this document was referred to you under  the heading "B. Traplines," and the passage he  referred to you was, and I'm quoting:  "Although the registered trapline always  corresponded to an aboriginal territory,"  and although not quoted, it follows in part,  "not always did the trapline encompass the  total hunting ground of the Simoighet to  whom it belonged."  Now, Mr. Sterritt, I'm just going to cover over my  note here, but this -- I'm showing you the document,  and this document appears on my copy to be single  spaced and indented.  And can you tell me the source  of the -- of that information that's contained in  there?  COURT:  What page is it on?  RUSH:  This is —  COURT:  It's Exhibit 384.  RUSH:  It's 384, and it looks like it's the one, two, three,  fourth page.  It's number 7.  COURT:  Thank you.  RUSH:  I wonder if we can have the -- would it be difficult  to get the exhibit, please?  COURT:  384.  RUSH:  384.  THE  MR.  THE  MR.  THE  MR.  THE  MR.  THE  MR.  THE  MR.  MR.  MR.  MR.  MR.  REGISTRAR:  384?  RUSH:  Yes, we might as well put it to him.  COURT:  Not at all.  RUSH:  Thank you, very much.  Just showing you tab 7, Mr.  Sterritt.  Yes, page 7 under "B. Traplines."  I'd like  you to look at that.  Can you tell me the source of  that information; do you know?  GOLDIE:  This is of the second paragraph?  RUSH:  Of the whole thing.  Under the heading "B. Traplines"?  GOLDIE:  RUSH:  Q   Yes.  A   I wrote this and -- yes,  Q   All right.  Thank you.  I wrote that.  Thank you, very much.  Could 9017  N. Sterritt (For Plaintiffs)  Re-exam by Mr. Rush  Submissions by counsel  1 you place the blue binder, book of documents, Volume  2 number 3, of the Attorney General of British Columbia  3 before Mr. Sterritt, please?  Thank you.  4 Mr. Sterritt, I want to direct you to tab 23, and  5 at tab 23 there are notes that you have identified as  6 notes under your handwriting; is that correct?  7 A   Yes.  8 Q   And what's the date of this; are you able to say?  Is  9 it 28 or 23?  Did we have this conversation yesterday?  10 It's one or the other I guess we said.  11 A   Yes, that's the —  12 Q   Okay.  13 A   That's what we discussed yesterday and today, I  14 believe.  15 Q   All right.  In respect of the individuals that your  16 attention was directed to on pages 1, 2, 3, I believe,  17 were there any other notes which you made of  18 discussions with -- which you had of -- with any of  19 those people during that same period?  20 A   Yes, we were there for two or three days, and we had  21 more detailed discussions with not all, but some of  22 those people that are listed there on subsequent days.  2 3 Q   And do you --  24 A  And those notes -- there are notes of those -- of who  25 we talked to and what we talked about.  2 6 Q   All right.  And just going down page number 1, can you  27 identify whether there are notes of a discussion that  28 you had with any other -- other people there?  29 A   Yes, the people that -- that are on these pages would  30 be William George.  There would be further notes with  31 him.  Joe Bob.  32 THE COURT:  I'm sorry, are you telling me that you had  33 discussions with William George beyond which is noted  34 here?  35 THE WITNESS:  Yes, either later in the day or on the following  36 day.  37 THE COURT:  So you're really now giving evidence of additional  38 discussions with those persons?  39 THE WITNESS:  Yes.  4 0 MR. RUSH:  41 Q   That's right.  42 A   Yes.  So William George, Joe Bob, William Charlie,  43 Peter Abraham.  There may be one or two others, but I  44 don't see their names here.  They're not listed on  45 this.  46 MR. RUSH:  Sorry, that was William George, William Charlie,  47 Peter Abraham? 901?  N. Sterritt (For Plaintiffs)  Re-exam by Mr. Rush  Submissions by counsel  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. RUSH:  THE COURT  MR. RUSH:  Q  Joe Bob.  And Joe Bob.  Yes.  All right.  And in relation to those discussions, Mr.  Sterritt, what did they relate to, that you had with  those people, if you can summarize them?  A   The main information was as to who they -- their  mothers and fathers, grandmothers and grandfathers  were, and -- and the territories that -- that they  related to.  Q   Okay.  And what was -- from your standpoint, what was  the purpose of that?  A   To see -- although they were not living in one -- in  one of the Gitksan villages, they were living in  either Fort St. James or Takla or other places, and to  determine who they were, whether they were Gitksan or  Sustut dene or Seccannie.  I'll spell those.  Sustut  dene is S-u-s-t-u-t space d-e-n-e, and Seccannie is  S-e-c-c-a-n-n-i-e.  And to find our way through the --  the problem that was created by the Department of  Indian Affairs' arbitrary designation of districts,  the Babine District as opposed to the Fort St. James  District, and what that all meant.  That was part of  it.  MR. RUSH:  My lord, I propose to show the witness certain notes  that -- of conversations with some of the individuals  that were identified on pages 1 and 2 of the Moose  Valley notes of September the 23rd or 28th, 1986.  The  cross-examination dealt extensively with the question  of relationships and lineage and lines of family  connections, and I propose simply to ask this witness  to identify these notes and if these are the ones that  he took at the time.  And I think what these do is  to —  THE COURT:  Flesh out.  MR. RUSH:  Well, essentially it deals with the evidence that was  extensively examined in cross-examination.  THE COURT:  Mr. Goldie.  MR. GOLDIE:  Well, my lord, this document was requested in -- by  us in October the 6th, and it was delivered to us on  October 21st.  THE COURT:  I'm sorry, which document?  MR. GOLDIE:  This is the notes of the Moose Valley meeting.  THE COURT:  Tab 23?  MR. GOLDIE:  Tab 23.  And we — there is some 20 pages.  THE COURT:  And you got it when? 9019  Discussion  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT:  Submissions by counsel  MR. GOLDIE:  And we got them on October the 21st, and I think I  examined on them yesterday.  The purpose of my  examination was to determine from the witness  primarily what was being said in these notes because a  good part of it was, shall we say, shorthand, and I  wanted to know, for instance, what he meant when he  put down, "Joe Bob - 1/2 Gitksan 1/2 Sustut dene."  As  far as I was concerned, these notes are self-  contained.  If there is any other document which  contradicts them or is subsequent in time or which my  friend considers to be important, fine, but that  was -- that was something that he might have foreseen  when he put in his case.  These, as far as I am aware,  are a part and parcel of the meetings with the  Carrier-Sekani relating to the so-called overlap.  And, of course, I examined with respect to genealogy,  because that's what these notes are all about.  But I  didn't -- I didn't have reference to any other notes,  and I -- I have yet to hear from my friend just  precisely why it is that it is necessary that some  other references now be referred to.  Well, let me first understand what's regarding you  gentlemen.  The notes that you want to put in, Mr.  Rush, are they a body of notes from which exhibit --  tab 23 has been extracted, and have they been produced  to your friend for inspection?  Yes.  Miss Sigurdson wrote to me on October the 6th  and said, "We have notes," and provided me with a page  which showed page 21.  She said, "Do you have notes  that precede this?"  And I wrote back.  I was able to  find the notes eventually and gave her those notes.  These notes, 21 and following, are notes of  conversations with people, some of whom have been  identified by Mr. Sterritt, that were disclosed on  September the 7th, and I simply wish to put in the  balance of the notes.  Well, I'm not sure that I've completely grasped the  underlying facts.  Miss Sigurdson seems to have  received tab 23 on October 21st.  Yes.  Now, that was as a result of a request she made, I  gather, on October 8th, was it, Mr. Goldie?  MR. RUSH:  October 6th.  MR. GOLDIE:  October the 6th, my lord.  THE COURT:  All right.  And she referred in that request to some  other documents which had been produced earlier?  MR. GOLDIE:  Yes.  What gave rise to this, my lord, is in the --  MR. RUSH:  THE COURT:  MR. RUSH:  THE COURT 9020  Discussion  Submissions by counsel  1 in the -- Mr. Sterritt's evidence in chief on  2 September the 16th he said that there was a meeting at  3 Moose Valley, the format, evening sessions and  4 sessions where, "...Edward John, and myself sat down  5 and conducted interviews with members of the  6 Carrier-Sekanni in terms of who they were and who  7 their parents were..."  8 THE COURT:  Now, was that chief or cross-examination?  9 MR. GOLDIE:  That was in chief.  And Miss Sigurson wrote and  10 said are there notes with respect to that, and this is  11 what we got in response.  And I point out that my  12 friend, to the extent that he thought it was  13 necessary, examined the witness in chief on September  14 the 19th about some notations on the linen maps, and  15 he asked, Sophia Jack, do you know of her?  Yes, she's  16 deceased.  All right.  Eric, Paul, Mary Jack, Mrs. Bob  17 Patrick.  18  19 "Q    Do you know an Eric Jack?  20 A    No.  There is an Alec Jack.  There are four  21 children of Sophia that I'm aware of."  22  23 Bob Patrick.  So that's what he thought was  24 sufficiently important in his case in chief to examine  25 on, and it was, however, the prior reference to  26 interviews with members of the Carrier-Sekani in terms  27 of who they were and who their parents were that  28 prompted Miss Sigurdson's request.  29 MR. RUSH:  Well, that's certainly not reflected in her letter.  30 Her letter says, "In the material you provided to us  31 on September 2nd, 1988, are pages 21 to 36 of an  32 interview.  I would attach page 21 for your reference.  33 Could you provide us with pages 1 to 20?  34 MR. GOLDIE:  Well, that —  35 THE COURT:  All right.  36 MR. GOLDIE:  — that came directly out of that.  37 MR. RUSH:  Well —  38 MR. GOLDIE:  She was anticipating that what he was referring to  39 we had been supplied in part.  40 THE COURT:  Well, I have a note from your cross-examination, Mr.  41 Goldie, that there was -- that the witness described,  42 I think this morning, subsequent meetings with the  43 Carrier-Sekani at Burns Lake.  44 MR. GOLDIE:  Yes.  45 THE COURT:  Exhibit 103A.  46 MR. GOLDIE:  Yes.  47 THE COURT:  That's something different than what you're talking 9021  Discussion  Submissions by counsel  1 about now, Mr. Rush?  2 MR. RUSH:  Yes.  3 THE COURT:  All right.  All right.  Well, I have two problems of  4 admissibility here.  It seems to me that Mr. Rush  5 embarked upon this subject in his evidence in chief,  6 led evidence about this meeting at Moose Lake but did  7 not develop it extensively, and that would seem to  8 suggest that he should not be allowed to develop it  9 further.  But I have the further problem of  10 admissibility that usually holds that when a  11 witness -- when counsel in cross-examination says what  12 did A say on that occasion, that it is then competent  13 for opposing counsel in re-examination to say what  14 else did A say in addition to what you have just  15 described, which would seem to suggest that it is a  16 proper ground for re-examination.  While I'm thinking  17 about that dichotomy, I should ask Miss Koenigsberg if  18 she has anything to suggest.  19 MS. KOENIGSBERG:  No, my lord.  20 THE COURT:  Well, Mr. Rush, I would like to hear from you on why  21 I should allow you to lead evidence, detailed evidence  22 in re-examination on a -- on a matter raised in chief  23 at this time, that is in re-examination.  And I'm now  24 thinking that the principle that I mentioned secondly,  25 which would seem to be in your favour, probably does  26 not apply universally if the matter was raised for the  27 first time in chief, and it's probably restricted to a  28 matter that arises for the first time in cross-  29 examination.  That is -- that is the way that I would  30 attempt to rationalize that dichotomy, if I didn't  31 have some assistance from counsel on the question.  32 Briefly, why having raised the subject in chief should  33 you be allowed to re-examine on it at all, please?  34 MR. RUSH:  Well, the questions, my lord, are that my learned  35 friend went into an extensive cross-examination on the  36 issue of relationships and the determination of the  37 father/mother side and relationship of those  38 particular sides to territory.  Those were not issues  39 canvassed by me in cross -- in direct examination.  40 Yes, issues of territory obviously were, but these  41 issues in terms of the relationship that were  42 explored, and extensively explored, about William  43 Charlie, William George, the relationships on the  44 mother and father side, which in my submission are  45 partial descriptions of those relationships, which, as  46 you have heard from Mr. Sterritt, are more fully  47 canvassed on individual interviews that -- or 9022  Discussion  Submissions by counsel  1 discussions that he had subsequently with some of the  2 same people.  Now -- and I say firstly, that there --  3 the issue -- the issues raised by Mr. Goldie in his  4 cross were not raised in the same way in direct.  5 Secondly, the -- it is a matter of importance that  6 what was initially put to Mr. Sterritt about evidence  7 or information provided to him by some of the people  8 was more fully canvassed by some of those people at a  9 later time, and in my submission it is relevant and  10 explicatory of the information that was cross-examined  11 on.  And I say that, with respect, that I couldn't  12 know what my learned friend was going to cross on in  13 respect of those notes.  What I say is that you've got  14 essentially half the story, and there are notes which,  15 in my submission, refute some of the suggestions that  16 are made to the witness by Mr. Goldie on the basis of  17 the information that is contained in tab number 23,  18 and the information that, in my submission, refutes it  19 is contained within the notes that were provided on  20 September the 2nd, and I think they should be put to  21 him.  22 THE COURT:  Mr. Goldie.  23 MR. GOLDIE:  Well, we asked for production of the tapes of these  24 interviews, and we're awaiting those.  Maybe we should  25 await them.  As far as I'm concerned, my friend raised  26 the issue in chief.  He said -- I'm reading from page  27 7907 of Volume 128 — he said:  28  29 "Q    All right.  And following that was there a  30 meeting at Moose Valley?  31 A    Yes, there was.  32 Q    And was that in September of '86?  33 A    Yes."  34  35 Who attended?  And he named Solomon Jack, Robert  36 Jackson Sr., James Morrison.  Bear Lake that -- were  37 there Carrier-Sekani representatives there?  38  39 "A    Yes, there were.  4 0 Q    About how many?  41 A   About 25.  42 Q    What was the format of this gathering?  43 A    This was more a meeting...there was evening  44 sessions between the hereditary chiefs  45 and there were sessions where the leader of  46 Carrier-Sekanii, Edward John, and myself  47 sat down and conducted interviews with 9023  Discussion  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  Submissions by counsel  members of the Carrier-Sekanii in terms of  who they were and who their parents were  and so on."  So that my friend described the meeting and the  interviews, and that's all that he thought was -- was  relevant to say, that there was interviews about who  their parents were.  Now, if I understand him correctly, he's saying  that these minutes of the meeting which took place  on -- that he's given us, and which are in part taken  down while the speaker was being tape recorded, are  contradicted or refuted by some later interviews.  Well, if that's the case, I'd like to see them, and  I'd like to see the -- hear the tapes before I make  any further comment, my lord.  But at the present time  I don't see any basis for my friend's position.  :  What's the problem with the tapes, Mr. Rush?  The problems of the tapes?  :  Yes.  They're in Hazelton, and I just -- I just requested  them.  When my friend asked me for them this morning,  I requested them.  :  Well, I think that I am at serious risk here of  doing legal injustice and possibly unfairness to one  side or the other.  I think in a perfect world this  problem wouldn't arise.  No, I won't put it that way.  I'll say that in normal litigation this problem  probably wouldn't arise because the scope of the  enquiry is usually so much more narrowly confined than  it is in this case.  But where I have a -- where I am  presented with a risk of unfairness in this  connection, I'm going to fall back on my one special  case principle of erring.  If I err on the side of  admissibility rather than on exclusion, then I'm going  to allow the evidence to be adduced subject to the  objection that's been made, and I do so because it  seems to me that it may be -- upon a proper  consideration of the whole subject matter it may be  that the evidence sought to be used by Mr. Rush may be  admissible.  By that I mean relevant and therefore  admissible to an issue that was not embarked upon in  the evidence in chief.  And if that is so, it's  probably -- it will probably be correct that it should  be adduced.  But I have another difficulty that your friend may  be able to help me with, Mr. Rush, and that is that --  THE COURT  MR. RUSH:  THE COURT  MR. RUSH:  THE COURT 9024  Discussion  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  Submissions by counsel  that is, these are -- this is your witness, and he's  under, in effect, examination in chief.  It seems to  me that at best the notes are only available to  refresh the memory of the witness and can't just be  identified and put in as they can be in cross-  examination.  I don't know what --  MR. GOLDIE:  I -- in for a penny, in for a pound, my lord.  If  it would keep things short, if he put the notes to him  and we knew what they were.  THE COURT:  Yes.  And I would, in view of the hesitante  dubitante approach I've taken in this case, I would be  prepared to consider reopening the matter on proper  grounds being shown, if Mr. Goldie thinks that there's  something he thinks that will bear upon this problem.  If there is a difficulty about the availability of the  witness, then it will have to be resolved in some way  that is not impossible between the ingenuity of  counsel, and the solution can be devised.  You may  proceed, Mr. Rush.  MR. RUSH:  Well, my lord, given what you've just said, I'd like  to take the evening to consider that because I want to  complete Mr. Sterritt.  This lingering is not  satisfactory.  And just in respect of that, Mr. -- Dr.  Mathewes, who was our next witness, has been waiting  to testify, and Ms. Mandell was here to lead him, and  it's obvious that both Mr. Sterritt and Mr. -- Dr.  Mathewes' examination will go to tomorrow morning.  But before the issue does go to tomorrow morning,  there was a matter that Miss Mandell wanted to raise  with the court that pertained to Dr. Mathewes, which  she feels it would be of assistance to everybody if we  could raise it now, and I would suggest -- I'd like to  suggest that we interrupt Mr. Sterritt so that Ms.  Mandell can raise that issue with you and perhaps get  some guidance from the court on it.  And I would  further propose that we consider commencing tomorrow's  session at nine o'clock so we could attempt to both  complete Mr. Sterritt and Dr. Mathewes.  MR. GOLDIE:  Well, my lord, I wonder if my friend can tell me,  because I may have to be elsewhere tomorrow, if Mr.  Sterritt's re-examination is completed except for this  one point.  No, it's not.  I'm going to canvass a number -- not  many, but a number of the entries in the -- in the  blue book that my learned friend referred Mr. Sterritt  to both yesterday afternoon and today.  Shouldn't we get on with that then, my lord?  MR. RUSH:  MR. GOLDIE 9025  Discussion  Submissions by counsel  1 THE COURT:  Can you -- well, I was thinking, can you not go on  2 with your -- at least embark upon the other matters  3 that you have for re-examination?  But if we're not  4 going to finish -- no, I don't see any real advantage  5 in that, Mr. Goldie.  I think we'll stand Mr. Sterritt  6 down.  Is it convenient to start -- resume at nine  7 o'clock?  8 MR. GOLDIE:  Yes.  9 THE COURT:  It's satisfactory to me.  Yes.  All right.  We'll  10 stand Mr. Sterritt down to ten o'clock tomorrow.  11 MR. RUSH:  Thank you.  12 THE COURT:  Miss Mandell.  13 MS. MANDELL:  Good afternoon after a long absence.  14 THE COURT:  Welcome back.  15 MS. MANDELL:  Thank you.  I want to raise the issue of the  16 document disclosure involving the experts to seek some  17 direction from your lordship hopefully to avoid  18 problems which appear already to be arising between  19 counsel without your assistance.  There are two issues  20 which have arisen.  One is the question as to what the  21 law is regarding privilege with respect to expert  22 documents.  And my friends have given us now several  23 letters where they interpret the Barratt and Phillips  24 case to entitle them to a range of documents which on  25 our side we say they are not entitled to.  26 And the second issue is how to avoid the problem  27 of a witness coming in from Smithers bringing all the  28 documents hopefully in their possession, which  29 hopefully we have disclosed, my friend on cross-  30 examination asking something like, "And having been  31 exposed to another kind of document," and the person  32 saying yes, and suddenly we're all standing down  33 because counsel didn't explore that with the witness,  34 and the witness didn't provide it, and we're dealing  35 with a transport problem of documents and endless  36 delays.  And one of the -- and in communication with  37 Mr. Willms today, it appears that that problem could  38 very well arise if at least one of the purposes of  39 cross-examination is to further explore the existence  40 or the non-existence of certain documents in the  41 possession of the witness.  42 Now, having considered all this, we'd like to  43 propose another method of resolving this.  As to what  44 is or what is not privileged, I don't think at this  45 stage that Mr. Willms is in the position to argue that  46 point.  He said he wanted to reread the Barratt and  47 Phillips case, and I'm prepared to put over that 9026  Discussion  Submissions by counsel  1 argument to a time suitable to all counsel and to get  2 some guidance beforehand as to what it is that we  3 should properly be claiming privilege with respect to  4 according to your lordship's direction.  But as to the  5 other problem of document disclosure, we propose that  6 there be some pre-trial procedure established which  7 could eliminate the problem of the witness taking the  8 stand and then us all having to stand down because  9 something has arisen that nobody has anticipated.  And  10 to that end, I have discussed with Mr. Willms a  11 procedure which would necessitate counsel, the  12 plaintiffs' counsel, making a list of all the  13 documents in the file of the witness and indicating in  14 advance which documents we take a claim of privilege  15 with respect to, and that counsel for the defendants  16 beforehand indicating to us if there are any other  17 areas, other than what's been disclosed or as a result  18 of the list, which they anticipate that they would  19 like us to direct questions to the witness with  20 respect to those areas to see if further documents  21 exist, and that this procedure be done before the  22 witness takes the stand, and that cross-examination  23 not be the way that document disclosure requests are  24 canvassed, that it be done between counsel before the  25 witness takes the stand.  And the plaintiffs from our  26 side are prepared to proceed on this basis, and we're  27 seeking direction from your lordship then with respect  28 to both a time suitable to argue the privilege part of  29 the case, and hopefully before too long, because I  30 don't want the -- we have excluded some documents on  31 privilege.  Dr. Mathewes is not going to be affected,  32 I don't think, by this.  Dr. Gottesfeld, the next  33 witness, will, and I don't want the problem of there  34 being a ruling with respect to privilege arising after  35 Dr. Gottesfeld is off the stand.  He lives in  36 Smithers, and already we're running a day behind for  37 him, and I don't want to aggravate the timetable  38 problems which we have.  39 So the direction which we're seeking is both with  40 respect to a date to debate this issue with you; and  41 secondly, some direction with respect to the proposal  42 I make that there be a document disclosure process  43 beforehand responsible both of the plaintiffs and the  44 defendants to canvass out of court these areas for  45 disclosure and not when the witness is on the witness  46 stand.  47 THE COURT:  Are you talking about an exchange of lists, are you? 9027  Discussion  Submissions by counsel  1 MS. MANDELL:  Yeah.  Well, for us it would be an exchange — at  2 this stage it would be the plaintiffs exchanging --  3 giving a list to the defendants, but the corresponding  4 obligation is that the defendants identifying to us,  5 as counsel, what other areas, if any, or if anything  6 arises as a result of the list, that they would ask  7 the witness can you -- I mean, it arose today with Mr.  8 Willms in a conversation.  He was going to ask the  9 witness something.  Well, I hadn't explored it with  10 him.  As it turns out, I now have, the witness is  11 here, and we've got an answer.  But had that been all  12 done on the stand and with a different result, we  13 might all be standing down for the answer to a  14 question that I could have canvassed with the witness  15 yesterday.  And because most of the witnesses are on,  16 from our point of view, a very tight time line,  17 they're being drawn away from usually other geographic  18 locations and oftentimes away from their files or  19 access to the material that they might otherwise  20 canvass, we would like all of this done before they  21 get here.  22 THE COURT:  All right.  I should hear what your learned friends  23 say before I rush in where anyone would fear to tread.  24 MR. WILLMS:  The suggestion that my friend just mentioned, with  25 a minor modification, is, I think, a good one.  And  26 the minor modification is this.  What I suggested was  27 that in respect of each witness that there be a  28 listing of the documents that the witness has at  29 present that are related to their report with two  30 columns, a privileged and a non-privileged column,  31 with the ability to look at the non-privileged  32 documents, and if we disagree with the privilege  33 claim, to have that as a concrete basis for an  34 application for production.  Also included in that  35 would be documents that have been in the possession of  36 the witness but are no longer in the possession of the  37 witness, that is, destroyed drafts of reports, things  38 like that.  And what -- what I then offered is if  39 there was such a list prepared, that I would within an  40 a very quick period of time, first of all, say which  41 privileged documents I wanted to argue about, if any;  42 and secondly, if there were gaps in the documents that  43 I could see where it would appear likely that there  44 would be another document, I would advise my friend  45 that there would be.  Now, that, of course, won't, my  46 lord, foreclose the normal process of perhaps  47 stumbling across a document in cross-examination that 902?  Discussion  Submissions by counsel  1 no one anticipated ahead of time, but I did -- and I  2 think it's a good proposal, that if there are  3 documents that we can anticipate, that we should  4 attempt to -- to get that dealt with ahead of time.  5 But on the privilege argument, my lord, I don't  6 think that it's going to be very useful to argue what  7 Phillips Barratt may mean in this case without  8 actually having something concrete.  I don't want to  9 argue within the air, because it's going to vary  10 depending on the witness what exactly the document --  11 the privilege claim may mean.  But other than that, on  12 the first stage of what my friend suggested, I'm in  13 agreement with that.  14 MS. MANDELL:  My lord, I should just say that with respect to  15 this not arguing anything in the air, we'll provide to  16 my friend, hopefully by tomorrow, as -- if this  17 formula will work -- the documents in say Dr.  18 Gottesfeld's file, and there will be there established  19 certain documents over which we claim privilege and  20 certain portions of the documents.  We can argue this  21 application with respect to Dr. Gottesfeld, but I  22 think that if my friend wants something concrete,  23 let's do it with a witness and let's do it with the  24 first witness that it may come up in -- in respect of.  25 THE COURT:  What do you say about Mr. Willms' inclusion of  26 documents that were but are no longer in the  27 possession of the witness?  28 MS. MANDELL:  Well, I think if we can identify them, I've got no  29 problem in disclosing those.  30 THE COURT:  All right.  31 MS. MANDELL:  I mean, it's a tough problem, as you know.  I  32 mean, a witness, especially in these areas -- it's not  33 like a doctor that has a file with the name of the  34 person that they're dealing with.  Very often the data  35 is not consolidated in a way that's so easily  36 identifiable.  But if it comes to our attention as a  37 result of questions which we agree we're going to ask  38 and we know about it, I don't see any reason why the  39 other -- both defendants shouldn't know about it.  40 THE COURT:  All right.  Miss Koenigsberg.  41 MS. KOENIGSBERG:  Well, I wasn't consulted about this  42 beforehand, so it's a bit off the top of my head, but  43 I think we have -- I hate -- I'm sorry to say, a  44 bigger problem than we're actually grappling with  45 here.  I think there are two kinds of documents that  46 we have to be concerned about.  There are privileged  47 documents, and I agree with -- with my friends that a 9029  Discussion  Submissions by counsel  1 resolution along the lines being proposed is -- is  2 agreeable to me.  But there are a large number, a much  3 larger number of other documents which in my  4 submission are not privileged documents in that sense.  5 They have nothing to do with the Phillips Barratt  6 case.  They are the facts relied upon, and they are  7 documents which should be produced at the time of the  8 report.  And it is apposite to bring that up at this  9 time because it applies to Mr. Mathewes, it applies to  10 Mr. Gottesfeld, it applies to Miss Haeussler.  This  11 morning on my desk arrived this bunch of material,  12 which appear to be, and I have to admit I haven't read  13 it yet, appear to be --  14 THE COURT:  Not the free trade agreement, is it?  15 MS. KOENIGSBERG:  Could be.  — notations, which probably would  16 fall into the very rough category of field notes or  17 something like that, relating to the work that Mr.  18 Mathewes did about which his opinion -- on which his  19 opinion is based.  What I can tell your lordship is  20 that it doesn't appear to be anything related to  21 counsel.  It doesn't appear to be correspondence.  It  22 appears to me to be what I would call material related  23 to scientific matters which Mr. Mathewes is covering.  24 Now, it may be that upon close look at it, it  25 really doesn't bother us a whole lot that we've had  26 one day to look at it in reviewing the kind of cross-  27 examination that we may do, but we are getting quite a  28 lot of this kind of material.  We have received a lot  29 of it in the last week in relation to other witnesses.  30 In two instances where I have prepared what extensive  31 cross-examination I would intend to do, and it impacts  32 quite regularly on that cross-examination.  There must  33 be some misunderstanding between counsel as to the  34 type of documents and whether it's producible well  35 ahead and as a fact relied upon as opposed to whether  36 it's a privilege document of the nature of  37 correspondence or drafts which are not facts relied  38 upon but which may be producible once the witness is  39 in the stand.  40 THE COURT:  Well, have I not dealt with that problem in the  41 reasons I had already delivered?  42 MS. KOENIGSBERG:  I thought your lordship had, and in your  43 reasons, in my submission, you looked at this very  44 problem, and you came to the conclusion that facts  45 relied upon are documents -- I think it's in your  46 second to last paragraph on page 6 of your reasons.  47 That the defendants are entitled to examine the 9030  Discussion  Submissions by counsel  1 original data, notes and writings of the anthro-  2 pologists on which his report is based, and that's  3 fitting it within the section 11 category.  There --  4 sometimes there are going to be documents which are on  5 the fine line.  Are they of the sort --  6 THE COURT:  Oh, yes.  If a scientist has been keeping notes for  7 20 or 30 years, it may be that some of them might  8 relate indirectly or even closely to what the -- to  9 the subject matter of the report, but I wouldn't think  10 that he'd have to review all that storehouse of  11 information which the scientist has collected together  12 over his lifetime.  I wouldn't expect that to be  13 producible.  14 MS. KOENIGSBERG:  My assumption is, my lord, that we're not  15 dealing with that kind of problem.  We're dealing with  16 material which in several cases the scientist has gone  17 to the area and performed certain operations on the  18 land or on the vegetation or whatever and has analyzed  19 that, categorized it, and come to some conclusion.  20 And it's that data which we have been asking for from  21 day one, and it's that data which we are getting in I  22 would say rather late order, and I think that we must  23 have some misunderstanding about the disclosure.  24 THE COURT:  Well, maybe you don't.  You have now received some  25 material.  Maybe that was in response to -- with  26 respect to this witness -- your reason for objecting  27 with respect to a different witness.  28 MS. KOENIGSBERG:  Well, at this point I think perhaps it would  29 be helpful if we were able to canvass -- if we're ad  30 idem that there is this distinction between the  31 privileged material and data, and that the data should  32 be, in the best of all possible worlds, produced in a  33 timely fashion.  34 THE COURT:  I think I'd like to reserve for a slightly different  35 time the question of the facts upon which the opinion  36 is based because I think while it's timely to bring it  37 up because it's an ongoing problem and a repeater-type  38 problem, I think for the moment I'd like to deal  39 firstly with the question of privilege.  40 MS. KOENIGSBERG:  Then I have no problem subject to working out  41 the details with the proposal.  42 THE COURT:  Yes.  All right.  All right.  Ms. Mandell, what  43 you're proposing is, as Mr. Willms has responded, as I  44 understand it, is that you will furnish him with an  45 inventory of your witness' file.  And it seems to me  46 that if we're going to look at privilege, it has to  47 be, as it were, counsel's file, because there may be a 9031  Discussion  Submissions by counsel  1 privileged document in counsel's file that bears on  2 the question that's not in any witness' file.  But I  3 may be looking for a difficulty which doesn't exist.  4 But it seems to me that to be useful, both areas  5 should be covered.  And with that inventory, Mr.  6 Willms will quickly identify those which he -- those  7 claims to privilege which he disputes, and we can --  8 we can have an argument about that.  And then, as I  9 understand it, Mr. Willms will, without foreclosing  10 his right to explore any matter that arises  11 spontaneously, he will indicate to you those areas  12 that he anticipates might be the subject of  13 investigations so that you can either dispute his  14 intention in that regard and have an argument about it  15 or you can have the documents producible in a timely  16 way, and it seems to me that's a perfectly sensible  17 suggestion.  Counsel can be commended for having  18 anticipated the problem, and I see no reason why we  19 shouldn't proceed in that way.  20 With regard to the question of the effect of the  21 Phillips Barratt case, I'm not surprised this has  22 arisen.  I anticipated in my recent decision, and took  23 out some sections because I didn't want to -- to  24 anticipate that problem when I was anticipating, so I  25 decided not to anticipate it, because I -- I have to  26 say that I -- I feel that I'm probably obliged to  27 follow what Mr. Justice Finch said in that case.  The  28 real question is what did he say.  And I think that if  29 there is a disagreement between counsel as to the  30 meaning or effect of that decision, then I think we  31 should definitely have an argument, and I'd be glad  32 for counsel to suggest when, having regard to  33 scheduling matters, they think it would be most  34 convenient to have that dialogue.  35 MS. MANDELL:  My lord, from our point of view, I would suggest  36 that it take place either Thursday or Friday of this  37 week, and I leave it in your hands, and I'd like to  38 continue with Dr. Mathewes.  He's already been in the  39 wings for a day.  4 0    THE COURT:  Yes.  41 MS. MANDELL:  And Dr. Gottesfeld, if we can either deal with  42 this before or immediately after his argument but  43 while he's down here.  44 THE COURT:  Well, I'll leave it to counsel to suggest when they  45 want to have that, if they can, to when they want to  4 6 have that argument.  If you want to have it at nine  47 o'clock some morning or at four o'clock some afternoon 9032  Discussion  Submissions by counsel  1 any afternoon but today, that would be -- that would  2 be satisfactory.  3 MR. WILLMS:  The only problem that I can foresee, my lord, is  4 this:  the Phillips Barratt argument was made with the  5 documents being there before Mr. Justice Finch.  In  6 other words, he had the documents that were being  7 argued over.  8 THE COURT:  Yes.  Ms. Mandell says that this can be done in  9 relation to --  10 MR. WILLMS:  Then that's — when I get the Dr. Gottesfeld's  11 list -- but it may not arise on Dr. Gottesfeld's list.  12 Then we'll have to wait.  13 THE COURT:  Ms. Mandell.  14 MS. MANDELL:  Perhaps we should do it Thursday before Dr.  15 Gottesfeld is completed.  16 THE COURT:  Well, Mr. Willms I think understandably and  17 reasonablably wants to see Dr. Gottesfeld's list  18 first.  I think if that after he sees that Thursday  19 morning is convenient, I think that will be perfectly  20 satisfactory to me, and if you want it at nine  21 o'clock, that's fine, or if you want to use regular  22 court time for it, that's satisfactory.  All right.  23 Nine o'clock tomorrow morning.  24 MR. RUSH:  Thank you.  25 THE REGISTRAR:  Order in court.  Court will adjourn till 9:00  26 a.m.  27  2 8 (PROCEEDING ADJOURNED)  29  30 I hereby certify the foregoing to be  31 a true and accurate transcript of the  32 proceedings herein to the best of my  33 skill and ability.  34  35  36  37 Leanna Smith  38 Official Reporter  39 United Reporting Service Ltd.  40  41  42  43  44  45  46  47


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