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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1988-09-22] British Columbia. Supreme Court Sep 22, 1988

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 5112  Submission by Ms. Russell  1 September 22, 1988  2 Vancouver, B.C.  3  4 THE REGISTRAR: Order in court.  In the Supreme Court of British  5 Columbia, this Thursday, the 22nd day of September  6 1988, in the matter of Delgamuukw versus Her Majesty  7 the Queen continuing, my lord.  8 MS. KOENIGSBERG:  My lord, although I raised this motion, I  9 guess we would call it, Ms. Russell will be arguing on  10 our behalf because I have to leave to be in another  11 court.  12 THE COURT:  All right.  Thank you.  13 MR. WILLMS: My lord, my name is Wiilms, initials C.F.. I appear  14 for the Attorney-General of British Columbia today and  15 I will be appearing from time to time as the trial  16 continues.  17 THE COURT: Thank you.  Today's the 22nd is it?  Yes.  All right.  18 Ms. Russell, it's your motion.  19 MS. RUSSELL: Yes, it is, my lord.  20 My lord, at the beginning of this matter I thought  21 that it should be very clear for what we are  22 requesting production.  We are asking for reports,  23 questionnaires, surveys, and data, all data from which  24 conclusions were drawn for the production of the  25 expert reports of the plaintiffs.  We, my lord, are  26 not asking for production of draft reports and  27 confidential notes such as were requested in the  28 Phillips Barratt Kaiser case decided by Mr. Justice  29 Finch.  Therefore, this is not a matter of privilege,  30 but it's a matter, we say, of requiring that the  31 plaintiffs produce the facts on which their expert  32 reports were based.  33 Now, we have been for sometime trying to demand  34 these as documents were produced in the ordinary  35 course of the litigation, and as of March 1988 we  36 received a reply from Mr. Rush on the status of these  37 reports and interview notes, et cetera, that we were  38 requesting.  And he says, and I'll hand a copy to my  39 friends.  4 0 THE COURT:  Thank you.  41 MS. RUSSELL:  He says in that third paragraph, my lord:  42  43 "I have reviewed your request carefully  44 and I believe my comments made in court on  45 July 31 cover the matter.  It is our view  46 that the documents which you request are the  47 facts on which the opinion of the expert is 5113  Submission by Ms. Russell  1 based and are thus covered by the 60 day  2 disclosure order made by the Chief Justice  3 during the trial on June 26th, 1987.  The  4 purpose of the motion was to provide to the  5 defendants sufficient prior notice of the  6 plaintiffs' expert report and the facts on  7 documents upon which the reports are based  8 in order to avoid a surprise."  9  10 THE COURT:  That means facts or documents.  11 MS. RUSSELL:  Yes, I'm sorry, I would imagine so.  12  13 "The facts and documents upon which our  14 experts rely along with their final opinion  15 reports, where those reports will be relied  16 upon by the plaintiffs, will be produced to  17 the defendants prior to 60 days before the  18 witness is called or the report is relied  19 upon."  20  21 Now, we understand that since that there's been  22 some change of opinion of the plaintiffs on this  23 matter, however, we're faced in this case, in a sense,  24 with a slightly unique situation with respect to the  25 plaintiffs' experts.  Many of their experts have done  26 primary research on which their reports are based.  27 This can be compared to the more ordinary situation  28 where the facts on which an expert bases his report  29 are facts at large, all parties are aware of.  Even  30 so, Section 11 (1) of the Evidence Act requires that  31 the statement provided be of the facts and the  32 opinion.  And there is a multitude of case law which  33 says that the report is not complete without  34 production of those facts.  35 We don't have access to those facts at large which  36 makes our situation that much difficult.  Therefore,  37 we must have access to the data which form the facts  38 on which those reports are based.  The reports  39 themselves become interpretations of the data and of  40 the facts, but don't provide the facts, the interview  41 notes, the primary research on which those reports are  42 based.  And obviously and it's trite law for me to  43 say, with respect, the requirements of providing the  44 facts is for the simple reason that we have no way of  45 evaluating that expert's report without knowing the  46 basis on which that report has been drafted.  We are  47 certain, my lord, that these data, these primary 8114  Submission by Ms. Russell  1 research sources, must be the facts on which their  2 reports rely and their reports aren't complete without  3 them.  4 THE COURT:  Well, let me stop you, Ms. Russell, a moment and  5 ask -- I take it that you have the reports?  6 MS. RUSSELL:  Yes, we do, my lord.  7 THE COURT:  How many are we talking about?  8 MS. RUSSELL:  There are 22 reports, my lord.  9 THE COURT:  And they're on such things as genealogy?  10 MS. RUSSELL:  Yes, they are.  11 THE COURT:  Fishing.  What else?  12 MS. RUSSELL:  We also have Mr. Daly's report which is  13 anthropology, anthropological in nature, and really it  14 has come to a head at this point, my lord, because of  15 Mr. Daly coming up.  16 THE COURT:  When is he expected to give his evidence?  17 MS. RUSSELL:  I'm sorry, my lord, I don't know exactly, but  18 within the next 60 days one assumes, as we do have  19 some general idea of the schedule.  It is his field  20 notes in particular and his interview notes that we  21 are concerned with.  Now, I should say, my lord, that  22 we have some of those field notes and interviews and  23 we have an indication from Mr. Grant that he may  24 voluntarily produce any more if they are found, but  25 that's simply not satisfactory.  We are not certain  26 then that we have full production or that we can  27 depend on timely production.  2 8 THE COURT:  Well, when you said that Mr. Rush — well, Mr. Rush  29 said that that material would be furnished to you --  30 or he didn't say that material, he said the facts  31 and --  32 MS. RUSSELL:  It was in response to a request for field notes  33 and interview notes, my lord.  34 THE COURT:  Yes.  "The facts and documents upon which our  35 experts rely along with their final opinion reports,  36 where those reports will be relied upon by the  37 plaintiffs, will be produced to the defendants prior  38 to 60 days..."  39 Now, you said there's some change in that, a  40 change more favourable to your position or less  41 favourable?  42 MS. RUSSELL:  Less favourable, my lord.  I believe it's now the  43 position of the plaintiffs, and I may be anticipating  44 Mr. Grant, but that these documents are producible  45 upon cross-examination of the expert, but -- as in the  46 Phillips Barratt case, but not in advance and not  47 within the 60-day rule, which you've elucidated. 5115  Submission by Ms. Russell  1 I can tell you, my lord, that that letter was  2 written in response to a request for additional  3 genealogies from Heather Harris as facts on which her  4 report was drafted, interview notes of Antonia Mills  5 and appendices of Mike Morrell's reports, and  6 interview notes of Richard Daly, Hugh Brodie interview  7 notes, and additional appendices and maps.  8 Now, some of those documents have been provided,  9 but it's really this primary source material that we  10 are now requesting full disclosure of within that  11 60-day rule.  12 THE COURT:  What did Mr. Finch say about this, Mr. Justice  13 Finch, say about this question in the Phillips Barratt  14 case?  I've noticed in his reports, the B.C. Reports  15 this week --  16 MS. RUSSELL:  I have the case here if you -- it's on a slightly  17 different issue and that was production of the draft  18 reports and draft calculations, matters of that sort,  19 which the -- which were requested to be produced for  20 cross-examination of the expert, and he said that  21 those were producible and lost their privileges then  22 by waiver of privilege at the time that that witness,  23 who had been a confidential advisor at that time, at  24 the time he became an expert, and that those materials  25 were producible because they went to his credibility  26 as an expert.  And in fact, it's a slightly different  27 issue.  It's not the facts on which he relies.  28 I can provide you with a copy of that decision, my  29 lord.  I've brought it along.  30 THE COURT:  Yes.  All right.  31 MS. RUSSELL:  My lord, perhaps as a little indication of the  32 difficulties that the lack of these data present to  33 us, I can read to you from the summary of one of our  34 responsive expert's reports.  I do have other copies  35 of the pages here, but this document was provided to  36 my friends in June of 1987.  I won't read the whole  37 first page, but I will read the first paragraph and  38 I'll read the last half of the paragraph which begins  39 at "the sources of information".  4 0    THE COURT:  Yes.  41    MS. RUSSELL:  42  43 "The sources of information, identified  44 by the author as being used to determine  45 species distribution and abundance, may be  46 appropriate but the author neither presents  47 nor summarizes the results of these 5116  Submission by Ms. Russell  1 investigations in a scientifically useful or  2 credible form.  In fact, they are not  3 presented at all.  Only the author's  4 interpretations of the data are presented."  5  6 In other words, we don't have the data.  7 In the second paragraph:  8  9 "In the absence of such documentation",  10 referring to the data, "we have no objective  11 means of determining that the procedures  12 were appropriate, that the results support  13 the conclusions, or that no other  14 interpretation of the results was possible."  15  16 Next paragraph, last sentence.  17  18 "The Haeussler report presents only the  19 author's opinion or his interpretation of  20 unreported data as support for the  21 assumptions used."  22  23 Second page, last paragraph, my lord, last  24 sentence.  25  26 "For us to present an opposing or  27 supporting opinion without adequate  28 documentation of supporting data, evidence  29 or theory would not be scientifically  30 constructive."  31  32 My lord, that's why in our submission the facts on  33 which the opinion is founded must be produced to make  34 the report complete.  That complete report is required  35 by Section 11 (1) and is obviously for the reason that  36 we cannot evaluate the reports without the facts.  37 THE COURT:  I came without a copy of Section 11 (1).  38 MS. RUSSELL:  Yes, I do, my lord.  It's on the second page of  39 this document.  40 THE COURT:  All right.  Thank you.  Just let me look at it for a  41 moment.  What is your understanding, Ms. Russell, that  42 the 30 days has been in this case extended to 60 days?  43 MS. RUSSELL:  Yes, my lord.  That is my understanding.  44 THE COURT:  You're not suggesting that that's not a relevant  45 date or anything are you?  46 MS. RUSSELL:  No, I'm not, my lord.  47 THE COURT:  You're just saying that you want this material 5117  Submission by Mr. Willms  1 within 60 days of the --  2 MS. RUSSELL:  Of the expert being called, as that rule reads.  3 THE COURT:  Before he testifies.  4 MS. RUSSELL:  That's right.  Thank you, my lord.  5 THE COURT:  All right.  Thank you.  Mr. Willms?  6 MR. WILLMS:  My lord, I support everything my friend has said  7 and, in addition, and dealing specifically with Dr.  8 Daly, Dr. Daly as an anthropologist did something  9 called participant observation, which meant that he  10 lived with the group that he was investigating, made  11 notes of what he saw, notes of who he talked to, and  12 all of those, if not disclosed, make it virtually  13 impossible for the defendant's experts to assess the  14 opinion which Mr. Daly reaches.  So to the extent that  15 these documents form the basis for the opinion, it's  16 impossible to prepare for cross-examination or  17 virtually impossible with most of the plaintiffs'  18 experts because to prepare for cross-examination  19 requires the assistance of experts to assess and put  20 it into an understandable form.  21 The second point that I wish to make -- and that's  22 a point on Section 11.  The second point is that Mr.  23 Justice Finch in Phillips Barratt did say that when an  24 expert was formally tendered, that the privilege, the  25 legal privilege, was waived in respect of even  26 communications with counsel or drafts of the report.  27 That is certainly broad enough, what Mr. Justice Finch  28 said, to include the facts upon which the opinion is  29 based so even if on a very narrow reading of Section  30 11 this falls outside of it, and I don't want to  31 anticipate what my friends may argue, but in the  32 circumstances of this case to keep the case moving  33 along to ensure the cross-examination can begin after  34 the evidence in chief of the expert witness concludes,  35 it will be necessary in virtually all cases to have  36 that information in advance, elsewise there will be  37 perhaps a little bit of cross-examination and then an  38 application for an adjournment in order to -- it's not  39 a normal witness case, my lord.  A lawyer can't read  40 and assess the data himself or herself.  41 So what I'm suggesting is that even if on a very  42 narrow view of Section 11, if that's what my friends  43 are suggesting here, that Section 11 doesn't cover  44 this, that your lordship has jurisdiction to make sure  45 that this trial keeps moving along to require that  46 those facts, not the draft reports, not the back and  47 forth between counsel and the expert, not -- ill?  Submission by Mr. Grant  1 THE COURT:  Well, you'll ask for that later.  2 MR. WILLMS:  We'll ask for that later, we will, my lord, but at  3 this time it really is the method of meeting the  4 witness' evidence.  5 THE COURT:  Thank you.  Mr. Grant?  6 MR. GRANT:  Yes, my lord.  I take the position firstly, my lord,  7 that Section 11, that we are in a -- the court may  8 have an impression, a misimpression because of Mr.  9 Sterritt's evidence, and in the case of Mr. Sterritt,  10 of course, as has been discussed over the past week,  11 the notes upon which he relies are the facts and they  12 were disclosed.  These are the field books and the  13 looseleaf notes.  14 Such, my lord, is not the case with, for example,  15 Dr. Daly.  Dr. Daly's report is over 700 pages long.  16 Dr. Daly, in his report, for the vast majority of his  17 report, relies upon two sources:  One, the expert  18 report of other witnesses that have already been  19 disclosed, such as the berries report referred to by  20 Ms. Russell; two, the sworn evidence before this court  21 either by way of commissioner at trial and references  22 to those transcripts and to where persons have said  23 things, in other words, the transcripts of evidence  24 which all counsel have.  That's what Dr. Daly relies  25 on.  The facts upon which he relies are in his report.  26 Now, with respect to the type of notes, and I  27 don't believe either counsel has thus far set it out,  28 I want to be clear what our position is.  Where an  29 expert, for example Dr. Daly, refers to an interview  30 with "X" in his report, we do not oppose the  31 production of those notes.  In fact, the vast majority  32 of those notes have, to my knowledge, been disclosed,  33 and we are making further investigations.  We don't  34 oppose that before the witness is called.  However, if  35 there are notes that are not referred to by the  36 expert, or not relied on by the expert, we say that  37 that -- that the Phillips Barratt case applies, that  38 Justice Finch's decision applies, and that it's not  39 until the witness takes the stand that those notes are  40 producible.  41 And I'd just like to refer you -- I think it is  42 referred to in Barratt itself, but it's the S & K  43 Processors case of Madam Justice McLachlin, at the  44 time, and she refers to -- and it's on page 293, and  45 this was a case where the Section 11 applied, my lord.  46 She concluded that, at the top of page 293, the quote  47 from Mr. Justice Finch's order: 5119  Submission by Mr. Grant  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. GRANT  THE COURT  MR. GRANT  THE COURT  MR. GRANT  "Waiver of privilege is ordinarily  established  where it is shown that the  possessor of the privilege:  (1) knows of  the existence of the privilege; and (2)  voluntarily evinces an intention to waive  that privilege.  However, waiver may also  occur in the absence of an intention to  waive, where fairness and consistency so  require."  And then she concluded it was not waived.  And  what she said at page 221 of the report, herself --  Not 221.  No, I'm -- I've got her decision --  Oh, I see.  -- my lord, which --  All right.  -- she said:  "In the case of production of an  expert's report under the Evidence Act  Section 11, it can be contended that the  pre-trial production of the report and the  attendant loss of privilege at that stage is  involuntary, being compelled by statute.  Being involuntary, it cannot constitute  waiver, although it is clear that under  Section 11 privilege will be lost as to the  opinion and the facts upon which it is  based.  Moreover, even if production of the  report pursuant to the Act could be said to  constitute waiver, in these circumstances it  cannot be said to be unfair or inconsistent  that the party producing it retain such  privilege as is left to him by the Act."  Now, then it goes on to -- just before that last  comment, "I may add", it says:  "In the result, I conclude that the  privilege attaching to these documents has  not been waived."  In other words, there'd been a Section 11 report  produced, but there were documents as well. And she  says that between the production of the Section 11 5120  Submission by Mr. Grant  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  report and the witness taking the stand there isn't  waiver.  "The plaintiffs are not entitled to  production.  They are, however, entitled to  disclosure of all the facts upon which the  inferences and conclusions contained in the  Laventhol & Horvath report are based, to be  furnished by way of particulars as well as  by supplementation of the report insofar as  it fails to precisely set forth those  facts."  We do not dispute that point.  We do not dispute  that if there is supplementation of the report, and  that's where we say if Daly, for example, refers to an  interview that's not disclosed in the report, we say  it should be produced, and we don't disagree with --  THE COURT:  Well, did you limit it to those that are mentioned  in the report or can you go further and say that  they're relied upon, if not mentioned.  MR. GRANT:  Well, what -- yes.  If they're facts upon which he  relies to form his opinion, we say those can be  producible, but what we say is in the case of Dr. Daly  the facts upon which he relies for the most part is  either other expert reports or the sworn statements of  witnesses in court.  And all of that is clearly set  out in his report.  That's why his report is so  lengthy is to cover the points, the facts upon which  it is based.  Now, there's another point raised by Mr. Willms  and that is where we come closer to them.  We do not  wish adjournments of cross-examinations either because  of production of draft reports or for any other  reason.  As you can recall yesterday, we're very  concerned that we not have that adjournment and we've  advised both counsel, and presently Ms. Mandell with  respect to the experts, is -- has or is disclosing all  of the notes referred to by any of the experts.  There  is not a question here that we are going to sit on the  notes until the witness starts his cross-examination.  That's counter-productive to everybody, and in fact  what we are doing is disclosing not only the notes  that I've referred to that are producible, that we  concede are producible, but all notes.  But, my lord,  for us to -- the simple fact of it is this:  Ms. 5121  Submission by Mr. Grant  1 Russell says "Well, we can't -- our experts can't  2 analyse." Their experts are going to come up several  3 months after our witnesses.  They will have their  4 opportunity at that time to give their evidence.  5 THE COURT:  There is an earlier deadline and that's  6 cross-examination.  7 MR. GRANT:  Yes.  And of course then they, on the principles of  8 Justice Finch, then anything that comes within the  9 ambit that's relevant once that witness takes the  10 stand, that is producible.  But we're not saying we're  11 going to wait until that point because we don't want  12 either defendant to stand up and say "Well, now I want  13 to adjourn because I want to see -- to have these  14 notes."  We are agreeing to produce.  15 And Ms. Russell referred to one of the requests  16 which was the genealogies of Heather Harris, and  17 you've already ruled on that point when there was  18 questions to be answered under Rule 28 about Heather  19 Harris, and that was the provincial defendants sought  20 that, and one of the things they sought was all of her  21 genealogies and you at that point, as I recall,  22 adopted the Finch position saying "Well, I can't order  23 production of these at this point in time because it  24 depends on whether they're going to rely on this  25 expert or not."  In any event, those genealogies are  26 being produced under the terms of another order for  27 cross-examination of witnesses on territorial  28 affidavits.  29 But the majority of the material -- we've  30 disclosed the Daly notes to them, not just in the past  31 year.  And as I've said, I've made inquiries.  But, my  32 lord, for us to give -- for the defendants to say  33 "Well, we have to get all of these notes 60 days  34 before.", is basically we may as well say "Fine.  All  35 of our experts are doing your research for you."  And  36 that is what we're concerned about and that is where  37 we say there's no fairness here.  They have their own  38 experts.  They have been doing their own research,  39 including in the anthropological and other fields.  40 All we're saying is we'll produce them ahead of time.  41 They have to be produced when the witness is on the  42 stand.  If that's not reasonable, we'll produce them  43 ahead of the witness being on the stand, and that's  44 for example what we're doing right now with the first  45 four or the first series of witnesses, the witnesses  46 that are being called over November -- I'm sorry, over  47 October.  And I've indicated that we would make 5122  Submission by Mr. Grant  1 similar inquiries of Mr. Daly -- Dr. Daly, and once we  2 have these we're going to produce them as well.  If  3 there's anymore, then I suspect -- I strongly suspect  4 there is no more, but there may be, and I'm making  5 further inquiries on that point.  6 THE COURT:  Well, what's your position, Mr. Grant, if I say:  7 All right.  Well, I'm going to accept Mr. Grant's  8 assurance that Dr. Daly is relying solely on other  9 reports and evidence at trial and nothing else, and if  10 that is so, there is no need to produce anything  11 except those other reports upon which he relies, and  12 that he won't in his evidence be allowed to go beyond  13 that and he will have to find support for his opinions  14 and conclusions in that material and nowhere else.  15 MR. GRANT:  And in the notes to which he refers in his opinion,  16 which have been disclosed.  17 THE COURT:  And anything else that he may have disclosed.  Are  18 you content to have your evidence treated in that way?  19 MR. GRANT:  Well, I've made inquiries of Dr. Daly and I have to  20 discuss this further with him.  I did not intend to  21 lead his evidence.  But we take the position that,  22 subject as I say to these other notes that are  23 referred to by him, that he is able to provide his  24 opinions based upon the material to which he refers in  25 his report.  Yes.  2 6 THE COURT:  It seems to me that there's not much point in  27 requiring the production of a lot of material that is  28 not going to be relied upon.  29 MS. RUSSELL: My lord, we don't seek that.  Just to be clear.  30 MR. GRANT:  I think the point at which we differ is that we say  31 that the 60-day rule does not apply to the production  32 of underlying notes, and that that -- except in some  33 exceptions as we've already disclosed.  For example,  34 we have, for example, Rod Chilton's report, the maps  35 upon which were created on the basis of his report.  36 All of this has been produced, but the 60-day rule  37 does not apply.  38 But we're not saying that we want to lie in the  39 weeds, so to speak, and then have the witness on the  40 stand for the first time to disclose notes. We hope  41 that this would not happen, but we cannot guarantee  42 that all of the notes of a particular expert will be  43 produced within 60 days.  We do not oppose production  44 before the examination of the witness of those notes  45 and if other notes come to our attention of which we  46 are unaware we would disclose them.  47 THE COURT:  Well, how can you say that the 60-day rule doesn't 5123  Submission by Mr. Grant  1 apply to underlying facts?  That's specifically what  2 the Evidence Act says.  3 MR. GRANT:  No, it does apply to underlying facts, my lord.  We  4 provided the underlying facts.  That's what we say.  5 We've provided the underlying facts inside the  6 reports.  That's what's been done.  The witnesses have  7 said "This is what we rely on." or "This is what we  8 say is the situation with respect to it."  9 But our friends want to go much further than that.  10 What they say is it's not enough that the witness says  11 it's fact A and fact B.  It's that the witness says  12 fact A is contained in my notebook of me going out, if  13 it's Ms. Haeussler, out on the mountain and seeing the  14 berries.  But she says the berries are on that  15 mountain and they grow this side of the mountain and  16 not that side, for example.  That is the fact upon  17 which she relies.  If my friends dispute that fact,  18 that the berries grow on that side of the mountain,  19 God bless them, they can dispute it and cross on it,  20 but that's the facts and that's what's set out.  But  21 what isn't set out is that she may have done some  22 coded notes of, you know, blueberries and blackberries  23 and things like this.  Those are the documents and  24 that's what I say is the distinction that in the  25 Phillips and Barratt case is made.  26 It's one thing for the witness to say these are  27 the facts and they've set out the facts.  Of course --  28 THE COURT: You're drawing a distinction between the disclosure  29 of facts relied upon on the one hand to the broad  30 general obligation of disclosure of relevant facts as  31 part of the discovery process, that is, the discovery  32 of document process.  33 MR. GRANT:  That's right, because of course -- and that's where,  34 of course, I think in July of '87 this was commented  35 on by your lordship in one of the hearings in that  36 summer is that -- is the question was that a witness,  37 as I recall, and I don't have the reference, but that  38 the witness -- we're not obligated to disclose the  39 notes of an expert retained by us at that time, but as  40 I recall you even commented then, and it's my  41 understanding of the law, "but this may well change  42 when we put that witness on the stand" and we say yes,  43 it may well change when we put the witness on the  44 stand, but not only that.  We say we're not going to  45 wait until that day, we're going to produce in advance  4 6 to give them some time.  47 But they have the underlying facts, and that's 5124  Submission by Mr. Grant  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. GRANT  THE COURT  MR. GRANT  what we're saying.  They have the underlying facts.  They are in the reports.  And, you know, Ms. Russell's  comments is that, you know, it's not "We would like to  know the basis why Dr. Daly says 'X'." It says, "It's  not that.  We're asking for reports, questionnaires,  all data."  All data.  What is all data?  That's —  could be a truck load of stuff.  I don't know what the  data is.  :  Data is information, isn't it?  It's another word  for information.  :  Yes.  It's a word for documents.  It's not  necessarily a word for facts.  And what we're saying  is we've provided the facts.  You have the facts and  the opinion.  And it's not only Dr. Daly's evidence. I  mean, this question was raised with respect to Mr.  Morrell's appendices.  They've all been disclosed.  Antonia Mills' notes, they've been disclosed.  All of  these things that they've requested, the vast majority  of what they requested in March of '88, has been  disclosed.  So we say that the underlying facts are set out in  the reports and the 60-day rule should not apply to  the production of notes.  And this puts -- it means  that 120 days or 90 days before a witness is called,  wherever that expert witness has to be, that we have  to canvass with that witness all of the notes.  Now,  we are canvassing this with all of the witnesses, we  just say, and we take the position, the 60-day rule  doesn't apply to that.  :  Well, Mr. Grant, are you equating facts in Section  11 (1) to the facts required to be proven, as  distinguished from evidence?  :  No, I'm saying the facts, as I used in the example  of Miss Haeussler, if she sets out in her report if  there's berries -- I can give an example, a more  precise example I have here.  This is page 240 of the  Daly report.  "Mrs. Ryan explained that peace  settlements were arranged in a feast and  ceremony called gawa gyanii. Some people say  that gawa gyanii originated in the course of  ending a battle..."  And he goes down and he says "some people" and  then he goes down to explain.  "Olive Ryan, Mary  McKenzie, and Pearl Trembley." 5125  Submission by Mr. Grant  1 Now, it seems to me there's no question that there  2 where he refers to Pearl Trembley, a person who was  3 not called, that any notes he has of that particular  4 interview are disclosable.  But he doesn't say -- but  5 the facts, my lord, the facts are set out.  6  7 "Mary McKenzie and Pearl Trembley  8 explain to me that at the end of the gawa  9 gyanii, when it is done properly, the down  10 should be floated over the protagonists."  11  12 And then it explains it.  He sets out what he was  13 told right in the report.  The only addition that any  14 note could have is if there's something else said  15 there or something else.  But the facts upon which he  16 relies are set out expressly in the report, otherwise  17 this report would have been a quarter of the size.  18 THE COURT:  Well, I suppose the problem your friends have is  19 that they don't know if that is the source of -- they  20 don't know if the source of every statement is  21 included in the report or not.  I suspect that's what  22 they're saying.  If the report was crystal clear, and  23 the facts supporting the opinion are those set out and  24 only those set out, then the problem wouldn't be here  25 because they would need nothing further.  26 MR. GRANT:  Well, that's the point, is that he quotes — he says  27 exactly what persons said outside of court to him as  28 well as he refers to the references in court.  And of  29 course that was the whole tenor as to why this report  30 was prepared in this way, to exactly preclude this  31 kind of a problem.  32 And so the fact that he had this interview with  33 these people and they told him this, is the facts on  34 which he can be cross-examined on, and of course at  35 that time it's -- my lord, it's an analogy of the  36 policeman's notes.  You know, the policeman says that  37 a person was impaired and then you say, "Well, did you  38 take notes of the symptoms?"  "Yes."  "Can I look at  39 them?", and then you cross-examine him.  And "Well,  40 did Pearl Trembley really say that?", or whatever.  41 That's the analogy we have here.  But to disclose  42 those when we've disclosed the facts in the report  43 itself, I submit, is a burden that's not -- that's not  44 fair to us, and it's not only that it's not fair to  45 us, it's not necessary, aside from just another lever  46 of production which isn't normally required.  47 And that's where I say that -- I just look at page 5126  Submission by Mr. Grant  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. GRANT  THE COURT  MR. GRANT  292 of the Community College -- the Phillips and  Barratt case where Susan Hosiery is referred to  half-way down.  "After elaborating on the reasons for  the privilege, he said this at page 34:  'What is important to note about both of  these rules is that they do not afford a  privilege against the discovery of facts  that are or may be relevant to the  determination of the facts in issue.  What  is privileged is the communications or  working papers that came into existence by  reason of the desire to obtain a legal  opinion or legal assistance in the one case  and the materials created for the lawyer's  brief in the other case.  The facts or  documents that happen to be reflected in  such communications or materials are not  privileged from discovery if, otherwise, the  party would be bound to give discovery of  them.'"  Now, what we've done here is we've disclosed the  facts within the opinion.  And of course this came out  of a situation where it was a pre-trial -- there'd  originally been a pre-trial subpoena.  And then he  says then at page 296 at the bottom paragraph, my  lord:  "So long as the expert remains in the  role of a confidential advisor, there are  sound reasons for maintaining privilege over  documents in his possession.  Once he  becomes a witness, however, his role is  substantially changed."  We take, of course, no issue with that.  And nor does your friend.  And —  Or your friends.  But in fact what's done in the focus, I think  there's sort of a general clouding.  I think this is a  general issue that affects all experts, but the focus  of this has been that they say it is not good enough  for us to say that notwithstanding we're not required  to produce these notes until the witness is on the 5127  Submission by Mr. Grant  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. GRANT  THE COURT  MR. GRANT  THE COURT  stand, and it's Dr. Daly they're focusing on in the  correspondence, we will produce it ahead of time so to  avoid any unnecessary adjournments of trial.  And the  focus is on Dr. Daly's report in all of the demands  that have been made of recent date, and that's where I  think, as Ms. Russell rightly said, that's where in  her view it's come to a head.  But what if an expert had -- if an expert went into  the field and said -- discovered that there are no  blueberries on the north face, and he checked with  various people and they all said there have never been  blueberries on the north face, and so he then says in  his report the members of this house suffered  seriously because they don't have blueberries anymore  which they used to get from the north face, and the  facts that I rely upon for this are that there used to  be blueberries on the north face, even though he knows  that there didn't used to be blueberries on the north  face.  Now, he has disclosed the fact upon which he's  based his conclusion, but it's not true.  Now, I've  taken it to the extreme example, but it seems to me  that he has complied with your interpretation of the  Evidence Act.  He's given his opinion; he's stated the  basis on which he relies; he's stated the facts upon  which he relies, and then unless the party that  reviews such evidence to be tendered rushes out into  the field and re-covers the ground, he won't know that  that opinion is falsely premised.  But, my lord, I think that's, of course, the beauty  of cross-examination and, as I say, we disclose these  notes in advance in any event.  They'll say -- the  obvious first question is "Why did you say there used  to be blueberries?" "Well, because these five people  told me."  How are they to know?  They're going to retrace the  same steps the expert's traced for the purpose of  disproving a false statement when, if he's requiring  not just to state the bald fact but the circumstances  surrounding the formulation of that opinion, he had a  great deal more difficulty doing that?  But it's not -- from your example, my lord, it's not  the circumstances surrounding the formulation of the  opinion that is the problem, it's the fact that he's  relying on a fact that isn't true, and --  Well, let's not put the man in a worse -- let's just  say that he's assumed there was all these berries on 512?  Submission by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR. GRANT  THE COURT  MR. GRANT  THE  MR.  COURT  GRANT  THE COURT  MR. GRANT  the north face and so he states as the basis -- and he  doesn't know one way or the other really, but he just  assumes "Oh, there's always berries on north faces.",  so he says "The fact I rely upon is that there used to  be berries on the north face."  He's stated the fact  upon which he based his conclusion, but there's no way  of checking it.  It's a hypothesis that we, the plaintiffs, would  have to prove independently that there are berries on  the north face.  We would have to prove that fact  somehow and it may be through one of the witnesses,  and it may be through -- but we couldn't -- but if  that was a premise upon which that opinion was, is  that they've suffered damage because there's no more  berries on the north face, the obvious question at the  end of trial would be "Well, was there ever berries on  the north face?"  But what I'm saying is that's why I gave you this  example --  If that's the case, then there would be no reason to  call the expert because these facts would be proved  independently of the expert.  The expert is sort of a  wrap-up.  It makes it unnecessary, in most cases, to  call all this other evidence.  That's what we are hopeful of but, as I say, this is  why I give you the example --  Yes.  -- of one page of -- it's of where Dr. Daly says  this is the fact.  There's -- gawa gyanii originated  in the course of ending a battle, Olive Ryan said  this, Gyologyet, Mary McKenzie said this, Pearl  Trembley explained this, and he says what they said to  him.  I have no trouble with that.  That would seem to be  a sufficient disclosure of the facts.  He's given his  source and he's given his evidence that supports his  conclusion.  That's right.  And that's what his report consists  of.  That's what his report consists of, and that's  why we take such strong exception to this with respect  to his report, and I note that the defendants don't  raise -- they don't raise that kind of a problem with  his report specifically, although this is the report  that they're demanding the notes.  And of course he  can be asked on the stand -- and we say we would give  them in advance in any event -- "Well, could I see  your notes of your interview with Pearl Trembley about 5129  Submission by Mr. Willms  1 that?"  And of course once he's on the stand, any  2 privilege of that would be waived and, of course, as I  3 say, as a matter of committee we say we're not going  4 to wait until the first day of cross-examination for  5 that.  6 THE COURT:  Well, I think I understand your position, Mr. Grant.  7 Thank you. Any reply?  8 MR. WILLMS:  I've spoken to my friend and I just have a short  9 point, my lord, on Dr. Daly and then I think my friend  10 may have something to say about the other submissions.  11 Dr. Daly in his report says explicitly that "The  12 bulk of the data pertaining to this report", the bulk  13 of the data, "has been gathered by means of  14 participant observation," and that is exactly what he  15 says his report is based on.  16 He then says that:  17  18 "Participant observation involves two  19 qualitatively different types of data which  20 anthropologists consider to be highly  21 important for the achievement of an accurate  22 understanding of social institutions.  On  23 one hand, the investigator must collect",  24 must collect, "information concerning what  25 people say they do; that is, one must study  26 the people's perceptions about their own  27 social institutions.  This is generally  28 achieved by means of interviews or  29 questionnaires, or by means of a textual  30 analysis of the people's conversations and  31 speeches viewed against the archaological  32 and ethnohistorical data available in  33 documentary sources."  34  35 And then he goes on to describe actually living in  36 the community and seeing what is going on.  I guess  37 that would be firsthand evidence that he may or may  38 not make a note of.  But Dr. Daly says explicitly in  39 his report what participant observation is and what he  40 has done, and so I take some issue with my friend's  41 characterization of what Dr. Daly has done.  42 THE COURT:  Thank you.  Ms. Russell?  43 MS. RUSSELL: My lord, I'll be very brief, but I'd like to  44 respond to a couple of points raised by Mr. Grant.  45 First of all, where the reports are based on sworn  46 evidence, those reports are facts at large.  We have  47 access to them.  But where that report is based on 5130  Submission by Ms. Russell  1 interview notes, those are not facts at large.  And  2 where Dr. Daly may say so-and-so said such-and-such in  3 an interview, well, we don't have any way of testing  4 his evidence, if that is so.  We can ask in  5 cross-examination "That was really so?"  That's the  6 limit of our ability to analyse what he has said.  7 What he is doing where he says "Pearl Trembley said  8 'X,Y, and Z'.", is he is drawing a conclusion from  9 what she has said.  I don't agree that that can be  10 characterized as the facts on which he relies, and I  11 think that it is necessary for us to be able to test  12 that report by looking at those notes.  And to leave  13 it in the hands of the plaintiffs to voluntarily  14 disclose at such time as it is convenient for them to  15 disclose puts us in an impossible position to prepare  16 properly to cross-examine.  17 Secondly, my lord, I'd like to respond to Mr.  18 Grant's comments on how this was argued before you  19 once before.  It was indeed, and subsequently Mr. Rush  2 0 informed us that he viewed those documents that we  21 requested as being within the 60-day rule.  We've  22 relied on that.  And now we're faced again with the  23 position that these were -- these are documents  24 producible on cross-examination of the experts and we  25 can wait until such time as they'll be produced by the  26 plaintiffs.  27 As well, my lord, at the time that this matter was  28 argued before you Mr. Adams swore an affidavit on July  29 17th of 1987.  I'm sorry, I don't have copies of this.  30 I didn't anticipate this would be raised, but in that  31 affidavit he goes through a number of the experts, and  32 he says in paragraph 17:  33  34 "I am informed by Richard Overstall, and  35 verily believe that Richard Daly is  36 presently in Norway, that  his interview  37 notes are still being collected, that many  38 of the notes are in Toronto, and that all  39 should be available about the end of August  40 1987."  41  42 Now, my lord, I'm afraid I'm just a little  43 impatient with a suggestion now by Mr. Grant that it's  44 very difficult for the plaintiffs to produce these  45 notes within the 60 days before the witness will be  46 called.  47 As well, my lord, I wish to make one other point, 5131  Proceedings  1 and perhaps I'm citing an obvious proposition once  2 more, but that is that surely the purpose of requiring  3 that all the facts be produced for us is for us to  4 decide, on reviewing the whole of the report, whether  5 or not we need to call a responsive expert or to  6 cross-examine.  And without those facts we're unable  7 to make that kind of decision.  Thank you.  8 THE COURT:  All right.  Thank you.  This raises, in my view, a  9 most difficult question which, as I see it, now can be  10 summarized by asking myself whether the word "facts"  11 in Section 11 is to be given a narrow or extended  12 meaning.  If it's to be given the meaning that it is  13 given in relation to pleadings, then the plaintiffs'  14 obligation is much less than it would be if it were  15 given a larger meaning equated to a word such as  16 "evidence" upon which the witness relies, and that is  17 a matter upon which I want to take some time to think  18 about because I think it's an important question.  If  19 the witness has to disclose the bald fact or facts  20 upon which he relies, in the sense that we use that  21 word in relation to pleadings, then, as I say, the  22 obligation is much narrower than it would otherwise  23 be, and I will give that matter some thought and I  24 will give you a short judgment or memorandum as soon  25 as I possibly can.  26 I think we'll adjourn to give madam reporter a  27 brief break before we resume at ten o'clock.  Thank  2 8 you.  29 THE REGISTRAR: Order in court.  This court stands adjourned for  30 a brief recess.  31  32 (PROCEEDINGS ADJOURNED AT 9:52)  33  34 (PROCEEDINGS RECONVENED AT 10:08)  35  36 THE REGISTRAR: Order in court.  37 Mr. Sterritt, may I remind you that you're still  38 under oath?  39 THE WITNESS:   Yes.  4 0 THE COURT:  Mr. Goldie?  41 MR. GOLDIE:  My lord, yesterday — I'm sorry, did you —  42 MR. RUSH: There were three of us rising.  43 MR. GOLDIE:  Oh, yes.  Well, I'll sit down.  44 MR. PLANT: Well, I just had a housekeeping matter, my lord.  45 There's been some informality in some of these -- in  46 some of the comings and goings of counsel, but I hoped  47 to be going soon and I thought, given the length of my 5132  Proceedings  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  MR.  THE  MR.  COURT  PLANT  COURT  RUSH:  THE COURT  MR.  MR. RUSH  MR.  MR.  MR.  MR. RUSH  absence, it would be appropriate if I sought your  lordship's leave to be excused from this trial for --  I want to say for the next ten months of this trial.  I'm sure we'll still be here when you come back Mr.  Plant.  I thought I should leave it to you to say that, my  lord.  I look forward to returning.  Thank you, Mr. Plant.  You're excused until you  return.  Thank you.  I'd just like to say on behalf of the plaintiffs'  counsel we'd like to wish Mr. Plant all the best in  his academic pursuits.  We're looking forward to big things from you, Mr.  Plant, and don't worry about us, we'll be fine.  Don't  spend too much time worrying about us.  Thank you, Mr.  Plant.  GOLDIE: I will defer my compliments.  My lord, yesterday I did not have all of the  amendments or the course of amendments to the  statement of claim, and what I would like to do is  place before the witness our pleadings book and just  have him confirm the dates when amendments were made  which are relevant to my cross-examination, that is to  say, the addition of or subtraction of plaintiffs.  Just before my friend proceeds with that, my lord,  there was an issue raised yesterday about notes of two  informants which were said to have been included in  the notes of the deceased chief and that had not  previously been included in notes that had been  delivered to my learned friends, and reference was  made to some notes of Mr. Gunanoot and of Mrs. Martha  Brown.  Now, I asked my friend to specify for me the notes  of Mr. Gunanoot, which he did, but he did not do so in  respect of Miss Martha Brown, and in order to track  down what occurred here I'll need to know what the  dates are of the two entries that he made reference  to, and I would ask if he can tell us that now.  GOLDIE: Yes, I'd be glad to.  Martha Brown of 6th September  '86 and Martha Brown of July 8th, 1987.  RUSH: Thank you.  GOLDIE:  Those I believe are in the index.  The ones that I  referred to with respect to Mr. Gunanoot are not,  but -- yes, they are in the index.  They're the last  two items under the heading "Looseleaf Notes".  Well, thank you.  I'm going to make inquiries on  those. 8133  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 THE COURT:  Yes.  All right.  2 MR. GOLDIE:  I want it understood, my lord, that I'm not being  3 critical of anyone in terms of failing to disclose.  4 This is obviously a matter as embarrassing to my  5 friend as it is troublesome to me.  The problem simply  6 is that we didn't have them and we're not pointing the  7 finger at anybody.  8 THE COURT:  Thank you.  9 MR. RUSH:  No, I neither take it as embarrassing or troublesome,  10 but I'm concerned about how this can happen and I want  11 to find out for myself and hopefully be able to advise  12 my friend about it.  I think it is a concern about  13 disclosure and we had hoped that we would give timely  14 disclosure on these things and I'm very concerned that  15 if this has occurred what the reason for it is.  16 MR. GOLDIE: Well, I've already made it clear that disclosures on  17 the 2nd, 14th and 20th of September are not timely.  18 Now, my lord, I wanted to put before the witness  19 my pleadings book and have him confirm the amendments  20 made to the statement of claim with respect to the  21 deletions or additions of plaintiffs, and I'm showing  22 him first the statement of claim as issued on October  23 23rd, 1984, and we have gone through that and that is  24 indeed in the witness' book.  25 THE COURT:  I'm sorry, that date was again?  26  27 CROSS-EXAMINATION BY MR. GOLDIE CONT.:  28 Q   October 23rd, 1984.  That is the original statement of  29 claim and it is appended to the affidavit of Mr.  30 Sterritt sworn February 17th, 1985, which is Exhibit  31 729.  32 And those are the original plaintiffs, are they  33 not, Mr. Sterritt?  34 A   Yes.  35 MR. GOLDIE:   I next show you a statement of claim which is date  36 stamped April the 24th, 1985.  37 THE COURT:  April 24th?  38 MR. GOLDIE:  April 24th, 1985.  3 9 THE COURT:  Yes.  40 MR. GOLDIE:  And that was amended pursuant to Rule 24 (1)(a) of  41 the Supreme Court Rules, and I would ask you to  42 satisfy yourself that there was no change in the  43 Gitksan or indeed the Wet'suwet'en plaintiffs?  44 MR. RUSH:  I think it should be made clear to the witness what  45 constitutes change in terms of the document and how it  4 6 would appear on the document.  47 THE COURT:  Well, is that not a matter that speaks for itself by 8134  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 looking at the two documents?  Does it add anything  2 for the witness to make the comparison?  3 MR. GOLDIE:  Well, my cross-examination yesterday was altered  4 somewhat because I didn't have the document before me.  5 Perhaps my friend can agree that there was no change  6 made in the statement of claim?  7 THE COURT:  Well, if counsel states that's a fact I would accept  8 it.  9 MR. GOLDIE:  And perhaps it's unnecessary to burden the witness.  10 MR. RUSH:  Well, my lord, I think the document speaks for itself  11 in my perusal of it.  I haven't got it in front of me,  12 except for the copy shown to the witness.  It appears  13 that there weren't any changes made to the list of  14 plaintiffs.  15 THE COURT:  List of the plaintiffs?  16 MR. RUSH:  Yes.  17 MR. GOLDIE:  The list of the plaintiffs.  That indeed is my  18 understanding, and the same with respect to the  19 amended statement of claim which is date stamped -- or  20 is dated, I should say, 12th of June, 1985.  There  21 is -- there were no changes to that.  22 And then we come to the statement of claim which  23 is amended on the 21st of February, 1986, and the only  24 thing that was done there was to add the  25 Attorney-General of Canada and all my remarks relate  26 to the plaintiffs.  27 Then we come to the amended statement of claim  28 date stamped September the 10th.  29 THE COURT:  September 10th.  30 MR. GOLDIE:  31 Q   Which was 1986 and was amended pursuant to the order  32 of Mr. Justice Cumming made the 19th day of August,  33 1986, and it is that one that I wish to pause at and  34 ask the witness some questions.  35 Mr. Sterritt, you may take it from me that  36 wherever you find underlining or side-lining signals a  37 change from what was the case before, and it would  38 appear to me that Delgamuukw now speaks not only for  39 his own house, but those of Haaxw and Hage; is that  40 correct?  41 A   Yes, on this statement of claim.  42 Q   Yes.  Now, in September 1986, Axtii Hiikw is stated to  43 be also known as Henry Tait and that is a change.  44 Heretofore Axtii Hiikw was Geoffrey Morgan, was he  45 not?  46 A   Yes.  About that time Geoffrey Morgan died.  47 Q   Yes.  And the amendment which was made substituted 8135  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 Henry Tait as Axtii Hiikw?  2 A   Yes.  3 Q   And that was supported by an affidavit which you filed  4 in support of the change, was it not?  5 A   I believe that I did.  I would have to -- I did file  6 an affidavit.  I'd have to -- and I think it was  7 incorporated on that.  8 Q   Yes, well, perhaps we can go back to the transcript of  9 your cross-examination before Mr. Justice Cumming.  10 Could I have the book of documents please that the  11 witness was being referred to?  It's this one here.  12 Right.  Thank you.  And I'm going to refer you to tab  13 3, and I place that before you, and beginning at the  14 bottom of page 22.  Do you have page 22 in front of  15 you?  16 A   Tab 3, page 22.  Yes.  17 Q   Yes.  That's your cross-examination on your affidavit.  18 Yes.  Now, at the bottom of that page at line 43:  19  20 "Q   Yes.  From your affidavit, and that of Mr.  21 Rush, it appears that Moses Morrison,  22 Geoffrey Morgan, George Milton, and Arthur  23 Kusick have all died since October 1984?  24 A   That's correct.  25 Q   Can you tell me approximately when each of  26 those Chiefs died?  27 A  Moses Morrison died on December the 17th,  28 1985.  29 Q   Yes.  30 A  Arthur Kusick died, I believe, in February  31 of '86.  It's one of those months in '86.  32 Q   Yes.  33 A   George Milton died in late May or June of  34 1986.  35 Q   Yes.  36 A  And Geoffrey Morgan died in the late summer  37 or early fall of 1985, I believe it was."  38  39 And you remember that, giving that evidence, do  40 you?  41 A   Yes.  42 Q   And is that still your sense of the correct date of  43 Mr. Morgan's death?  44 A  Well, I don't have the exact date of when he died.  45 Q   No, I understand that.  I just wanted to know if there  46 was anything that you've learned since this  47 examination, which was on August the 18th, 1986, that 8136  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 would cause you to say "I now have subsequent  2 information and I want to change what I said there."?  3 A   I don't recall exactly when Geoffrey Morgan died at  4 this time.  5 Q   Right.  Thank you.  But so your evidence is still,  6 however, that it was late summer or early fall of  7 1985?  8 A   I believe I have notes somewhere of exactly when he  9 died.  I'm not sure about that.  10 Q   It's not important, Mr. Sterritt.  11 And then you were referred to an affidavit which  12 you had sworn in another part of this proceeding, line  13 14:  14  15 "Q   Would you refer, please, to paragraph six of  16 your affidavit?  You say:  17 'I have been informed by Tenimgyet that  18 Axtii Hiikw can speak for him.  Geoffrey  19 Morgan died since this action was commenced  20 and Henry Tait now holds Axtii Hiikw.'"  21  22 You recall swearing that affidavit, do you?  23 A   Yes, I do.  2 4 Q   And was it true?  25 A   Yes.  26 Q   And then the question goes on:  27  28 "Q   In what manner, if you can describe it  29 briefly, did Henry Tait succeed Geoffrey  30 Morgan and effective when, taking into  31 account that Mr. Morgan died in the early  32 fall of 1985?  33 A   Henry Tait is the nephew of Geoffrey Morgan.  34 Q   Yes.  35 A  And as the nephew was chosen to take the  36 Axtii Hiikw.  37 Q   Yes.  And the choosing, of course, is  38 something that is done by each House; is  39 that correct?  40 A   That's correct.  41 Q   Can you tell his lordship when the choosing  42 of Henry Tait took place?  43 A   It would have been done prior to the death  44 of Geoffrey Morgan and would have been  45 confirmed at the funeral feast of Geoffrey  4 6 Morgan."  47 8137  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 You remember giving those answers and they're  2 true?  3 A   Yes, I gave those answers and to the best of my  4 knowledge it -- there's -- usually a hereditary chief  5 will determine who will be the successor.  It's not  6 always done.  Sometimes after the death the family  7 members will get together and discuss who will become  8 the successor.  9 Q   Yes?  10 A   But -- and to the best of my knowledge this happened,  11 but I wouldn't be entirely sure of that.  12 Q   And then I go on to say at line 38:  13  14 "Q   Of Geoffrey Morgan.  15 Now, I just want to be sure that I have  16 this understanding correctly.  I am going to  17 show you an affidavit that was sworn and  18 filed in the lis pendens proceedings. It's  19 dated the 11th of December 1985 and filed  20 December 16th.  21 THE COURT:  Is that in this action?  22 MR. GOLDIE:  No, it's in a separate proceeding  23 but the parties are the same.  I should give  24 your lordship the registry number.  25 THE COURT:  This is the affidavit of who?  26 MR. GOLDIE: This is the affidavit of Mr.  27 Sterritt.  28 Q   Mr. Sterritt, did you swear that affidavit?"  29  3 0 And so on.  31 Now that -- you identify an affidavit, and then at  32 line 29:  33  34 "Q   Now, I take it, Mr. Sterritt, that when you  35 swore that affidavit, Geoffrey Morgan was  36 dead and he was one of the two Chiefs; would  37 that be correct?"  38  39 Now, the background of that reference is that Mr.  40 Sterritt said in his affidavit that he'd been  41 instructed by 46 of the 48 appellants and on behalf of  42 two he'd received instructions from others.  43  44 "A   Yes.  45 Q   And he had instructed other member of his  46 House to provide you with instructions to  47 proceed with this action? 513?  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 A   Yes.  2 Q   Who was the person that instructed you on  3 behalf of--"  4  5 And there was an objection taken.  6 Line 40:  7  8 "Q   Was Mr. Tait already the Chief of that  9 House?"  10  11 And there was an objection.  Line 47:  12  13 "MR. GOLDIE:  No, does Henry Tait speak — you  14 skipped a paragraph there, I think."  15  16 At line 5:  17  18 "Q   Did you identify for his lordship who it was  19 that gave you instructions with respect to  20 the House at which Geoffrey Morgan had been  21 Chief and by who by that time was dead?  22 A   I am not precisely sure that Geoffrey Morgan  23 was dead at that time.  It was --  I can't  24 remember. It was the late fall -- pardon  25 me -- late summer, early fall..."  26  2 7 And so on.  28 And I now want to skip down to line 36 -- no, I'm  29 sorry, I want to read the rest.  Line 14:  30  31 "Q   Well, assuming he was alive, do you recall  32 whom he instructed to instruct you?  33 A   He would have instructed Henry Tait.  34 Q   All right.  And you say now you are not  35 quite sure whether Mr. Morgan was alive or  36 dead at the time of -- you swore this  37 affidavit on December 1985?  38 A  My best recollection is that he would have  39 been dead then but I would want to check  40 that.  41 Q   If he was dead, your evidence is that Henry  42 Tait had succeded by that time to the  43 chieftainship; would that be correct?  44 A   The feast is sometimes held upon the death  45 or at the funeral and sometimes within some  46 months of that, when the actual succession  47 takes place." 8139  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1  2 Now, just pausing there, do you remember giving  3 those answers?  4 A   Okay.  Which line are you at?  5 Q   I had read down to line 27 and your response to the  6 question if he was dead, your evidence is that:  7 "Henry Tait had succeeded by that time to the  8 chieftainship; would that be correct?"  And you  9 responded "The feast is sometimes held upon the death  10 or at the funeral and sometimes within some months of  11 that, when the actual succession takes place."  12 And my question is you recall giving those answers  13 and were they true?  14 A   I gave that answer.  As I recall, the -- I would have  15 to sit down and chart the sequence of events because I  16 don't recall exactly what happened at this time in  17 terms of when Geoffrey Morgan died and when Henry Tait  18 took the name.  I know I attended a feast where Henry  19 Tait either took the name or he certainly was  20 conducting business as Axtii Hiikw, and whether that  21 was upon the death or sometime later -- sometimes the  22 circumstances are if -- well, the person will die  23 during the fishing season and it's impossible for the  24 successor to get back from the fishing grounds.  25 Q   Well, Mr. Sterritt, you're free to give whatever  26 explanation you wish, but my question was, was your  27 answer true?  28 A  Well, what I'm telling you is that I'm not sure.  The  29 same sequence of events that I'm running through now I  30 wasn't certain about at that time, so I can't say  31 exactly -- I don't recall exactly what the sequence  32 was then.  33 Q   Well, but in your mind at that time did you give a  34 truthful answer as stated in this transcript?  35 A  Well, I don't think it's a question of truthful or  36 untruthful in that situation.  I was trying to recall  37 and I couldn't and I haven't refreshed -- I haven't  38 looked over my notes to see, or into my feast books,  39 if it appears there, to see exactly what happened.  40 Q   But you wished me to accept the proposition that Henry  41 Tait was a chief who was able to give you  42 instructions?  43 A   Oh, no.  Henry Tait is -- if Geoffrey Morgan was  44 deceased, is a person who could have given me  45 instructions at the time or to the -- to counsel, as  46 could have Art Matthews junior, and that would not  47 have been -- would not have been a problem.  As I say, 8140  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 I don't recall the sequence of events and I would have  2 to review just exactly what happened at that time.  3 Q   But Mr. Henry Tait did give you instructions, didn't  4 he?  5 A   To the best of my recollection Henry Tait did give  6 instructions.  7 Q   And when he gave you those instructions, you believed  8 him to be the chief who could give instructions,  9 didn't you?  10 A   Henry Tait, whether the succession had taken place or  11 had not, was known to be the one that would probably  12 be taking the name.  He and Art Matthews junior are  13 senior members of that house on the death of Geoffrey  14 Morgan and either or both of them -- and I know they  15 were talking to each other -- could have given  16 instructions with respect to the action.  17 Q   Mr. Sterritt, let me read you your questions and  18 answers beginning at line 28.  19  20 "Q   In what manner did Henry Tait tell you that  21 he consented to become a plaintiff in this  22 action?  23 A   He verbally informed me."  24  25 Was that answer true?  26 A   He did tell me, yes.  27 Q   All right.  28  29 "Q   Just tell me what he said to you.  30 A   He said that he was prepared to be a  31 plaintiff in this case.  32 Q   All right.  Representing himself and the  33 other members of his House?  34 A   Yes."  35  36 Were those answers true?  37 A   That was the discussion I had.  Yes.  38 Q   Yes.  And he was going to represent the entire house,  39 that's what you asserted, was it not?  40 A   Yes.  41 Q   Of which Tenimgyet was a chief?  42 A   Yes.  43 Q   In which house of Tenimgyet was a chief?  44 A   I described to you yesterday that Tenimgyet was a name  45 that was the higher -- the higher ranking at a point  46 in the past.  During the time of the Morgans, the name  47 Axtii Hiikw became the chief's name that everyone 8141  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 referred to.  The name Tenimgyet was parallel, but did  2 not assume the fullest responsibility within the  3 house.  Before Geoffrey Morgan died, he had advised  4 Art Matthews junior and his mother that Art Matthews  5 junior, the name Tenimgyet, should become -- should be  6 restored again to its original position.  And that was  7 eventually done.  8 Q   Yes.  Now, but before that was done, Mr. Henry Tait as  9 Axtii Hiikw held the senior name and was so regarded  10 by Mr. Art Matthews junior; isn't that correct?  11 A  Well, the -- I think you're confusing two things here.  12 Q   Well, can you answer my question?  13 A  Well, I will. I will.  14 MR. RUSH:  Firstly, if my friend wants to put some evidence that  15 Art Matthews junior, who was cross-examined on the  16 witness stand, said in relation to this, I think he  17 should put it to him directly as to what Art Matthews  18 said.  19 MR. GOLDIE:  Well, I —  20 MR. RUSH:  I mean, if my friend says "Does Mr. Art Matthews  21 regard Axtii Hiikw as the leading chief?  Is that your  22 understanding, Mr. Sterritt?"  Surely, my lord, that  23 is something that must emerge from the  24 cross-examination of Mr. Art Matthews.  25 THE COURT:  Couldn't it arise —  26 MR. RUSH:  My learned friend had the fullest opportunity to put  27 all of this to Art Matthews and didn't.  28 THE COURT:  But couldn't that information arise au dhors the  29 cross-examination?  It could be just general  30 knowledge.  I doubt if there's any dispute about it.  31 MR. RUSH:  I don't know if there's a dispute about it at all.  32 In fact, I don't know what most of this  33 cross-examination is about, but the point is that  34 there was a live witness who was there to answer more  35 directly the questions that are being put.  36 THE COURT:  But it may not have been important in the  37 cross-examination of that witness, but it becomes  38 important in this one.  There are always semantical  39 problems in these matters.  I think it would be  40 preferable to -- if the purpose of the evidence was to  41 establish that fact, it might have been preferable to  42 get it from Mr. Matthews, but sometimes in  43 cross-examination one's entitled to refrain from a  44 frontal assault and one will take a more circuitous  45 route.  46 I think there are difficulties that you recognize,  47 Mr. Goldie, but I think you may proceed. 8142  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 MR. GOLDIE:  I don't rely upon anything that Mr. Matthews junior  2 said.  I rely upon what this witness said, and I've  3 already read it.  4 THE COURT:  Yes.  5 MR. GOLDIE:  6 Q   Would you turn back to page 23 Mr. Sterritt?  7 A  Well, what I was going to point out to you --  8 Q   Excuse me, but I will come to that.  9 A   I will turn to page 23, but I wanted to point out  10 something to you.  The name that was on the statement  11 of claim at the time was Axtii Hiikw.  I had to go to  12 Henry Tait to see if he wished to have his name remain  13 there at that point.  I also was aware that  14 discussions were going on within the house that, in  15 terms of the name Tenimgyet, and counsel was involved  16 in those discussions and eventually, as the record  17 shows, the name Tenimgyet, which Geoffrey Morgan  18 wanted restored to a certain status, ended up being  19 the plaintiff in this action.  But at that point what  20 I was determining was whether or not Henry Tait was  21 prepared to have his name, his name rather than  22 Geoffrey Morgan's, connected to the name Axtii Hiikw.  23 And I appeared in court in that regard.  24 Q   And you went further?  25 A  Well, I'm not sure.  26 Q   Would you turn to page 23, please?  You swore an  27 affidavit stating that you'd been informed by  28 Tenimgyet, now that's Art Matthews Junior, isn't it?  29 A  Where are you looking?  30 Q   Page 23, line 18.  31 A   Oh, but that -- at that point Tenimgyet did say that.  32 Q   Yes.  You were -- you had taken a step further.  You  33 had confirmed with Mr. Art Matthews junior that Axtii  34 Hiikw, namely Henry Tait, could speak for him; isn't  35 that what you swore in the affidavit?  36 A  At the time it was important to -- because I knew of  37 these discussions, it was important to determine the  38 status of Tenimgyet and what Art Matthews junior felt  39 about the situation.  40 Q   Yes.  Well, why was it important?  41 A   Because I was going to be appearing in court with an  42 affidavit.  43 Q   Yes.  Why was it not sufficient, Mr. Sterritt, simply  44 to say, as you said with others, Geoffrey Morgan is  45 dead, there's a new holder of the name, and I want to  46 substitute Henry Tait for Geoffrey Morgan?  What's it  47 got with the law -- what's it got to do with the 8143  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 lawsuit to swear an affidavit that Mr. Art Matthews  2 junior says that Mr. Henry Tait can speak for him?  3 A  Well, I didn't draft the affidavit.  It was part of  4 the affidavit.  5 Q   I see.  But Mr. Art Matthews did tell you that Mr.  6 Henry Tait could speak for him?  7 A   Yes, he did.  8 Q   Now, subsequently, Mr. Art Matthews junior  9 contradicted himself and said "I want to speak for  10 myself and, furthermore, the name Tenimgyet is going  11 to be the senior name."  Isn't that right?  12 A   Oh, that's not how it was done.  13 Q   Maybe that's not how it's done, but that's the effect  14 of it?  15 A   Not in the tone that you're presenting it.  Not at  16 all.  17 Q   Well —  18 A   There is a working relationship between Tenimgyet and  19 Axtii Hiikw.  They were talking to each other.  There  20 was no sense of -- that you're portraying here.  21 Q   I'm not portraying anything, Mr. --  22 A  Well, I thought you were.  23 Q   -- Sterritt.  Just answer my questions. I put it to  24 you that subsequently Mr. Art Matthews junior changed  25 his mind, whatever the process was?  26 A   No, it was -- the name Axtii Hiikw appeared in the --  27 in the statement of claim.  28 Q   Because it was the senior chief?  29 A   Because it had a certain status for a period of time,  30 and was a high ranking chief in that house.  And there  31 were discussions going on, there was protocol to be  32 carried out.  It was going to take time, and the  33 family was working that out.  34 Q   In any event, whatever the process, Mr. Sterritt, Mr.  35 Art Matthews subsequently informed you that he was  36 going to speak for the house; isn't that correct?  37 A   Subsequently the members discussed this and gave  38 instructions to counsel to change the name on the  39 statement of claim.  40 Q   Were you present at such discussions?  41 A   Not in subsequent ones.  Those were discussions that  42 were held with legal counsel.  43 Q   All right.  Then I put it to you again that whatever  44 the process, Mr. Matthews changed his mind and said  45 "Mr. Tait may no longer speak for me.  I will speak  46 for the house."  47 A   Oh, no, he wouldn't say it like that. 8144  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 Q   Well, never mind what he said or how he said it, that  2 was the effect of what happened?  3 A   But that's not what he said nor how he said it.  4 Q   Well, what did he say to you?  5 A   He didn't —  6 Q   To you?  7 A   He didn't speak to me.  8 Q   All right.  9 A   But what I'm telling you is that Axtii Hiikw and  10 Tenimgyet worked closely together and it wasn't a  11 question of Axtii -- or Tenimgyet going to Axtii Hiikw  12 and saying "I am now the spokesman."  That did not  13 happen.  14 Q   I see.  15 A   They discussed it and a change of name took place.  16 Q   But not in your presence, the discussions?  17 A   Not in my presence.  18 Q   Now, may I go to the -- again back to the statement of  19 claim of September the 10th, 1986, and there were --  20 that's the statement of claim which reintroduced Mr.  21 Walter Harris as Geel -- I shouldn't say reintroduced,  22 but brought him in as a plaintiff; is that right?  23 A  What tab in this are you referring to?  24 Q   I'm referring to the September 10th, 1986 statement of  25 claim as filed?  26 A  At which tab will I find that?  27 MR. RUSH: I think that's at tab 5.  28 MR. GOLDIE:  It is not.  It is not in the book of documents.  29 MR. RUSH:  Oh, I see.  30 MR. GOLDIE:  What is attached to the book of documents is a  31 statement of claim that was amended a month later.  32 MR. RUSH:  Well, then he should be presented with the statement  33 of claim you're talking about.  34 MR. GOLDIE:  That's what's before him.  35 THE COURT:  Yes.  It's before him now in a different book.  36 THE WITNESS:   Yes.  Page 3?  37 MR. GOLDIE:  38 Q   Yes.  Mr. -- that's when Mr. Walter Harris became a  39 plaintiff?  40 A   Yes.  It's underlined in this -- on this page, so I  41 would assume that's when that happened.  42 Q   All right.  Now, there are a couple of other changes  43 that I'm going to refer to in a little greater detail.  44 Well, Mr. Thomas Wright became a plaintiff in this --  45 in his own capacity; is that right?  46 A   Yes.  47 Q   At that time.  Now, sometime -- well, let me ask you 8145  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 some questions about the affidavit, about the  2 examination which you do have before you under tab 3.  3 Before that, I believe I should read you another  4 question and answer with respect to Mr. Tait, and it's  5 on page 25.  6 MR. GOLDIE:   "In what manner..." I'm sorry, no.  I've completed  7 that.  Thank you.  8 Mr. Sterritt, turning to tab 5 in the book of  9 documents now, there's attached to that the statement  10 of claim which was applied for in respect of its  11 amendment in October.  Now, that statement of claim  12 reflected the change from Mr. Henry Tait to Mr. Art  13 Matthews junior and the change of name from Axtii  14 Hiikw to Tenimgyet?  15 MR. RUSH:  Well, there are two questions there.  16 MR. GOLDIE:  17 Q   Well, it reflected the -- it reflected the appearance  18 of Mr. Art Matthews junior as Tenimgyet?  19 A   On page 1 of the amended statement of claim that I see  20 19th day of August 1986, there's a line appearing to  21 the side of Tenimgyet also known as Art Matthews  22 junior, yes.  23 Q   Right.  I don't think it's dated the 19th of August.  24 That refers to an earlier amendment.  In any event,  25 Axtii Hiikw disappears and Tenimgyet appears in that  26 statement of claim; right?  27 A   Yes.  2 8    THE COURT:  And the name of the house is changed?  29 MR. GOLDIE:  30 Q   And the name of the house is changed; you confirm  31 that?  32 A   Yes.  The house of Tenimgyet.  33 Q   Yes.  And you say there was no competition between Mr.  34 Henry Tait, who was Mr. Geoffrey Morgan's nephew, and  35 Mr. Art Matthews for the head chieftainship of that  36 house?  37 A   Yes, there was no competition.  38 Q   Each, however, represented two sides of the house, did  39 they not?  40 A   I'm not -- no, I'm not certain that -- there is a  41 Stoo'o wilp, that's S-t-o-o-'-o w-i-l-p.  I'm not sure  42 if there's Stoo'o wilp in his house, and certainly  43 there is no competition.  It was a matter of Henry  44 Tait being away a lot commercial fishing and that Art  45 Matthews junior was available.  46 Q   Yes.  He resided where?  47 A   In the village of Gitwangak.  That's 8146  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 G-i-t-w-a-n-g-a-k.  2 Q   Now, Mr. Sterritt, on this application what is Mr.  3 Victor Mowatt's Gitksan name?  4 A  Woosimlaxha.  5 MR. GOLDIE:   Yes.  6 MR. RUSH:  That's 83.  7 THE WITNESS:   Number 83.  8 MR. GOLDIE:  9 Q   He appeared as -- the first time as a plaintiff in the  10 action, did he not?  11 A   I'd have to check.  12 MR. GOLDIE:   Would you look at paragraph 49?  13 THE COURT:  In tab 5?  14 MR. GOLDIE:  15 Q   Yes, the attachment under tab 5, my lord.  16 A  What paragraph is that?  17 Q   Forty-nine of the statement of claim.  18 A   Yes.  19 Q   Had you known that Mr. Mowatt was Woosimlaxha before  20 October 23rd, 1984?  21 A   Yes.  I believe I attended at the feast when -- I did.  22 I was at the feast when he took the name.  23 Q   And that was before October 23rd, 1984?  24 A   Yes.  It was considerably before.  25 Q   Does he have a -- is he the head chief of a house?  26 A   The house of Woosimlaxha, the house of Gutginuxw, and  27 the house of Gitludahl, all have a very complex  28 relationship, and we were trying to work this out just  29 exactly what the relationship is.  To the -- from what  30 I can determine, there have been different  31 relationships between Woosimlaxha, Gitludahl and  32 Gutginuxw, for a long long time, depending on where  33 Woosimlaxha lived.  Woosimlaxha married into  34 Gitanmaax.  He is a hereditary chief from Kispiox, but  35 he married a Gitanmaax person at sometime in the past  36 and had a house in Gitanmaax and then also -- and  37 maintained his links to the people in the land in  38 Kispiox and moved back to Kispiox, and the present  39 Woosimlaxha once again is from -- resides in  4 0 Gitanmaax.  41 Now —  42 Q   Who spoke for him in October 1984, or did anybody?  43 A  Well, I'd have to look at the statement of claim of  44 1984.  45 Q   Well, that's under tab 1.  46 A   I — I believe that Gitludahl, G-i-t-l-u-d-a-h-1, that  47 would have been the hereditary chief who would have 8147  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 been looking after both Gutginuxw and Woosimlaxha at  2 that time.  3 Q   And then subsequently it evolved to a point where Mr.  4 Mowatt wished to become a plaintiff in his own right?  5 A   No, that's not what happened.  The house -- we had a  6 meeting with the family members.  Let's see, how did  7 this go.  We had a family meeting.  We had two  8 meetings. There was a meeting with Moses Morrison, who  9 was Gitludahl; Alvin Weget, who's Denii, that's I  10 think D-i-n-i-i; Pete Muldoe, who subsequently became  11 Gitludahl, Elsie Morrison, who's Waiget, W-a-i-g-e-t;  12 Gertie Morrison, my aunt; and myself, and at that  13 meeting discussed the case and during that meeting  14 there was some discussion about the house -- about the  15 house of Gutginuxw.  16 Alvin Weget was adopted or brought across.  He was  17 given a name by my uncle and was part of his house,  18 but Alvin Weget is closely related to the house of  19 Gutginuxw by birth, and so there was a subsequent  20 meeting where Abel Brown from the house of Gutginuxw,  21 his name is Anda ap, that's A-n-d-a a-p; Perry  22 Sampson, who is Tsogo gaak, that's T-s-o-g-o g-a-a-k;  23 Victor Mowatt, who's Woosimlaxha, and that's spelled  24 W-o-o-s-i-m-l-a-x-h-a.  25 THE COURT:  I'm sorry, W-o-o-s-i- —  26 THE WITNESS:   — m-1-a-x-h-a.  2 7 THE COURT:  Yes.  28 MR. RUSH:  That was the number 83, my lord.  29 THE COURT:  Is that what -- I was looking a moment ago in  30 paragraph 49, but it's spelled differently.  31 MR. GOLDIE:  Yes, my lord.  Yes, 49.  Yes.  32 THE COURT:  Wait a minute.  I'm sorry.  I'm confused now.  In  33 paragraph 49 there are a number of sub-paragraphs of  34 49.  35 MR. GOLDIE:  Yes.  It is the — it's the one that is 49 without  36 any A,B,C,D or E.  37 THE COURT:  Oh, yes.  All right.  38 MR. GOLDIE:  And in the writ of summons Woosimlaxha is  39 identified as Victor Mowatt.  4 0 THE COURT:  Yes.  Right.  Thank you.  41 MR. GOLDIE:  All right.  There have been these meetings that  42 you've described, and the result was that things were  43 so arranged that Mr. Mowatt became a plaintiff, spoke  44 for a house, sought a declaration of title in his own  45 name, and the prospect of damages; isn't that right?  46 MR. RUSH:  Well, my lord —  47 THE WITNESS:  — Victor — 8148  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1  MR.  RUSH:  2  3  4  THE  COURT  5  MR.  RUSH:  6  7  THE  COURT  8  9  MR.  RUSH:  10  THE  COURT  11  THE  WITNE  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  MR.  GOLDI  27  Q  28  A  29  30  31  32  33  Q  34  35  36  A  37  Q  38  39  A  40  41  Q  42  43  44  A  45  46  Q  47  A  Excuse me.  Mr. Sterritt was in the process of  describing the subsequent meeting where he was  identifying various people who were in attendance.  :  Yes.  And I wonder if he had completed describing the  meeting and describing the attendees.  :  He gave me Abel Brown, Terry Sampson, Victor Mowatt,  and himself.  Yes.  And that was Perry Sampson, my lord.  :  Perry.  Sorry.  3S:   And there was, I believe, Ralph Michell attended  that meeting, that's Wii seeks, W-i-i s-e-e-s-x.  Now, at that meeting Willy Morrison, who is  Gutginuxw, that's G-u-t-g-i-n-u-x-w, was not able to  attend.  He was away at the time at the coast, but I  talked to him subsequently, and there is a close  relationship between the two, Woosimlaxha and  Gutginuxw, and they decided at that time that the name  Woosimlaxha would -- should come forward, and that's  in fact what was done.  They also decided that Abel  Brown would be the person to speak on behalf of the  house of Gutginuxw and that in fact is what has  developed.  But in terms of Victor Mowatt coming into  the meeting and demanding to be a plaintiff, that was  not the case at all.  r:  I didn't put that to you, Mr. Sterritt.  Well, you suggested the prospect of damages is what --  you more than did that, you said that, and that is not  the case.  Victor Mowatt -- they decided that he would  at that point be a spokesman, but subsequently they  decided that Abel Brown would be a spokesman.  I know subsequently that happened.  I'm talking about  October of 1986 and Mr. Mowatt became the spokesman  and he is a plaintiff; you agree with me so far?  He became a plaintiff at that point.  Yes.  And, as such, he seeks a declaration of title to  identified land; isn't that right?  The -- the statement of claim explains the basis for  why they are a plaintiff.  Yes.  And if he is a successful plaintiff, he claims  damages from the province of British Columbia to be  paid to him on behalf of the members of his house?  The plaintiffs maintain many things in the statement  of claim.  Well, I'm picking out one.  I realize that. 8149  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 Q   Yes.  Doesn't he claim, if he's successful, the right  2 to receive damages?  3 A   He is.  Amongst the items that he is maintaining in  4 the statement of claim, that's one of the items.  5 Q   Yes.  And if he receives damages, it is he who decides  6 the distribution of the damages; isn't that right?  7 A   That is wrong.  8 Q   Well, let me put it this way:  The people who are  9 identified as being in the house for which he speaks,  10 they seek to have damages allotted to them for  11 themselves alone; isn't that right, in respect of the  12 territory that they claim?  13 A  Well, you're -- there is a technical aspect to the  14 statement of claim that I can't appreciate that is  15 drafted by lawyers.  Okay.  The discussions that I  16 have had with hereditary chiefs is that on a  17 successful declaration, assuming a successful  18 declaration, that the hereditary chiefs would have to  19 meet and decide on how the -- well, whatever the  20 declaration is, how the rest of the -- how those  21 damages or whatever is applied, will benefit the  22 Gitksan and Wet'suwet'en people all together.  23 And the -- for example, let's assume that -- let's  24 assume that there's a particularly -- an area within a  25 hereditary chief's territory that has nothing.  It's  26 been all logged off, perhaps it's been mined off,  27 perhaps there's no fish because of the damage, any of  28 a number of things, but for another reason somewhere  29 else there are resources that the Gitksan and/or  30 Wet'suwet'en could proceed into that area and log.  31 The discussions that the hereditary chiefs have  32 had is that it would not be fair for a house to  33 benefit exclusively to the detriment of the other  34 house that has suffered damages, and the -- all of the  35 people must get together and sort out that area so  36 that no one benefits excessively and no one suffers a  37 great loss because of things that have happened in the  38 past.  There would be a redefinition of how things  39 would work in the future, and that's a -- I've  40 attended meetings where hereditary chiefs have spoken  41 to that issue, and so your suggestion that there would  42 be tremendous damages for an individual, and that he  43 alone would make that decision about how that would be  44 distributed is wrong.  For one thing, the house  45 members would be involved in the decision and it would  46 be broader than that because -- because of the nature  47 of the system and the discussions that I've heard. 5150  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1  Q  2  ]  3  4  i  5  6  A  7  8  9  10  Q  11  A   '  12  1  13  14  15  16  17  18  19  20  21  Q  22  A   '  23  Q  24  A  25  Q  26  27  28  A  29  30  Q  31  A  32  33  Q  34  A   '  35  36  Q  37  38  A   '  39  1  40  MR. GOLDIE  41  42  43  44  MR. RUSH:  45  MR. GOLDIE  46  47  Well, I want to be sure I've got what you're telling  me correctly.  What you're saying is there'd be a pot  into which all damages would go and it would be  distributed according to what the hereditary chiefs  thought was fair and equitable?  The hereditary chiefs would meet and decide on a  process and the process would include discussions  within their house.  It would not just be the  hereditary chiefs.  But everything would go into a common pot?  Well, I can't predict the future completely, Mr.  Goldie, but I know the discussions that have been  held, and it wouldn't -- what would not happen is, for  whatever the benefit is, -- it could be -- you know,  it could be two acres.  Whatever the benefit, it would  not go to a single individual who would take it for  themselves and to the detriment of others.  It would  be -- there would be collective decisions.  The people  would get together to sort out what is the best thing  for the future of Gitksan and Wet'suwet'en children.  But they would start out with the pot?  Well, I couldn't say that.  All right.  I mean, you're simplifying it.  Now, in any event, Mr. Mowatt became a plaintiff at  this stage and that would give him a voice in this  process that you've just finished describing?  Yes.  Victor Mowatt as a hereditary chief would have a  voice.  Would he have it even if he wasn't a plaintiff?  The way that the system works is that the hereditary  chiefs listen to those people who are around them.  Well, he is a hereditary chief, isn't he?  Well, you asked me if he wasn't a hereditary chief  would he have a voice.  I'm sorry, I -- if he wasn't a plaintiff, would he  have a voice in this process?  Well, there are named plaintiffs, but I mean every  Gitksan and Wet'suwet'en person is a plaintiff.  :   Yes.  So really it comes down to this, Mr.  Sterritt:  What is the point in somebody becoming a  named plaintiff, as Mr. Mowatt did, months after the  action was started?  Is that really for Mr. Sterritt to answer, my lord?  :  Well, I'm trying to get at the -- what it is that  requires us to go through this process of subdividing  the plaintiffs and subdividing the areas which are 5151  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  MR. RUSH  MR.  THE  MR. RUSH  MR.  MR.  MR.  MR.  THE  MR. RUSH  claimed and finding out whether it is relevant at all  to this litigation.  Well, there's no process of subdividing the areas or  subdividing this -- or determining that claim,  subdividing the claim.  The process of the naming of  plaintiffs is one that may not be within the purview  of Mr. Sterritt to answer, and certainly not in  respect of questions of knowledge in respect of all of  the plaintiffs.  I mean, what -- the questions being  asked are questions that are aimed at imputing  knowledge in respect of all of these plaintiffs who  are named.  GOLDIE:   If he's ignorant let him say so, but his evidence  is that he attended meetings.  COURT:  Well, I think, Mr. Rush, that the evidence is — is  possibly relevant and I won't go any higher than that,  because that's as far as I have to go, but it does  seem to me that this evidence reflects on the -- or  might reflect on the nature of the claim that is being  advanced.  I've understood up to this point that, of  the plaintiffs' case, that each house individually  says "I have ownership and jurisdiction over my  territory."  That is -- that seems to be called into  question by the evidence I'm now hearing.  If the house -- if the house's recovery is  supplemented to some larger group interest, then it  seems to me that an argument might be based upon or  might be addressed that that goes to this -- the  nature of the title that's being claimed.  Well, I have two responses to that.  First, my lord,  the plaintiffs were not permitted to pursue the  questions about what in the future might occur with  respect to a successful determination on any of the  declarations.  And --  GOLDIE:  That's not true.  RUSH:  It is true.  GOLDIE:  That's not true.  RUSH:  Well, it is.  With respect, it is.  COURT: Well, the statement you just made, Mr. Rush, that is  one I'm racing around trying to figure out what you're  saying.  What I'm saying is that in evidence in respect of  what would occur in the future with regard to the  determination of, let's say, a successful damage  award, the plaintiffs have embarked upon on several  occasions, in which objection has been taken to that,  saying, well, the future is not really a question of 5152  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. RUSH:  THE COURT  MR.  THE  RUSH:  COURT  what the litigation is about, it's whether or not the  rights exist and the determination of how the rights  should be determined.  :  I'm sorry, Mr. Rush, but I'm not following that.  I'm not able at the moment to recall any discussion of  the type you're now describing.  Well, my lord, if you'll permit me I will find the  references, but on a number of occasions, at least two  or three that I recall in the case of Mary McKenzie,  being one where we endeavoured to move into a -- to  attempt to introduce the chiefs' understanding of what  they perceived would occur in the event of a  successful declaration.  :  Well, Mary McKenzie gave very explicit evidence  about that as to the -- her wish to have control over  the realization of the resources.  She described, or  she and others described, logging trucks going out of  the area taking resources, and she said that that  should be for the Indian people.  She described that.  Oh, yes.  I quite agree, but here, my lord, the  question is put to Mr. Sterritt in terms of the  mechanism or the methodology by which he, Mr. Sterritt  perceives, on the basis of some discussions with  hereditary chiefs, as to what would occur in the  future.  And what I say, my lord, is that I recall  that that evidence was attempted to be led on that  issue from some of the chiefs and that is to say --  :  I think I need to be refreshed on that, Mr. Rush,  because I don't have a recollection of that at the  moment.  But even if that were so, I'm not sure that  it's quite the same thing when the defendant is  seeking to explore the nature of and, if I can put it  this way, the ownership of the claim.  I'm not sure  that it's going to make any difference at the end of  the day because if the claim doesn't rest with the  houses, perhaps it rests somewhere else.  I don't  know.  It would seem to me, though, that the  plaintiffs have committed themselves to the house  concept.  Yes.  :  And that if the witness is saying he may not be --  he may not be not be saying anything different from  that, but it might be that he is.  I don't know where  this is going, but it is cross-examination and it  seems to be, at first blush, and it may be very  superficial to say, that he seems to be casting some  doubt upon the nature of the house claim and I don't 5153  Submissions by counsel  1 think I can stop Mr. Goldie from pursuing that, but  2 I'd be happy to have references to inconsistent  3 rulings, if any, because it may be that that should be  4 reconsidered.  As I say, I don't have a recollection  5 of it at the moment, but I'm not going to stop the  6 present cross-examination.  7 You may proceed, Mr. Goldie.  8 We'll take the morning break.  9 THE REGISTRAR: Order in court.  This court stands adjourned for  10 a brief recess.  11  12 (PROCEEDINGS ADJOURNED FOR MORNING RECESS AT 11:10)  13  14 I hereby certify the foregoing to be  15 a true and accurate transcript of the  16 proceedings herein transcribed to the  17 best of my skill and ability.  18  19    20 Tanita S. French  21 Official Reporter  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47     xh2 N. Sterritt (For Plaintiffs) 8154  Submissions by counsel  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  6 CROSS-EXAMINATION CONTINUED BY MR. GOLDIE:  7 Q   Thank you, my lord.  Mr. Sterritt, was -- is there any  8 difference of opinion amongst the chiefs on this  9 question of the manner in which damages would be  10 distributed that you described earlier?  11 A  Well, it was a -- it was a discussion, and some of the  12 chiefs suggested that that was a way of possibly  13 proceeding.  By no means are the discussions firm.  It  14 was just something that came up in relation to what  15 the future might hold.  The -- in terms of differences  16 of opinion, people would discuss what the  17 possibilities are, but no one would -- I don't think  18 that -- that it was a -- necessarily a fixed course or  19 something that would create strong feelings one way or  20 the other.  21 Q   Do I take it from your evidence then that there are  22 some chiefs who wish to retain any damages  23 attributable to their territory for their own house?  24 A   I -- I couldn't say that.  There's been no discussions  25 necessarily that would -- I mean, there may be some  26 who have focused on the extent of damages within their  27 territory and have had concern about that, but whether  28 that translates into them saying that they want  29 whatever would arise out of damages solely for  30 themselves, I -- I'm not certain about that.  31 Q   You've never heard anyone say that?  32 A  Well, I couldn't say that, and I couldn't say that  33 it's something that -- that is a fixed idea in the  34 minds of the chiefs of the house or houses or of the  35 people within the house.  36 Q   But you have been at discussions where it was  37 apparently made clear, according to the evidence  38 before your adjournment, that the damages would be  39 distributed amongst the people of the Gitksan?  40 A   No, I was saying that that was something that they had  41 discussed and it was a possibility.  It wasn't made  42 clear that that's what would happen.  43 Q   I see.  44 A   The -- the house system --  45 Q   Well, excuse me for a minute.  Are you changing any of  46 the evidence you gave before the adjournment, because  47 I don't want to go back over that again? 8155  Submissions by counsel  Cross-exam by Mr. Goldie  1 A  Well, what I'm explaining is that the house --  2 Q   Excuse me.  Are you changing any of the evidence you  3 gave before the adjournment?  4 A   The discussion --  5 Q   Can you answer my question, please?  6 A   Don't interrupt me, please.  7 MR. GOLDIE:  No.  Excuse me.  I want to know —  8 THE COURT:  Gentlemen, there is no point carrying this on when  9 both of you say not to interrupt.  I think we'll start  10 all over again, and you'll have to start with a  11 question, Mr. Goldie, and we'll see where we go from  12 there.  13 MR. GOLDIE:  14 Q   Mr. Sterritt, do you wish to change any of the  15 evidence you gave before the adjournment on this  16 question of the distribution of damages?  17 A  What I wish to point out to you is that the area that  18 we were discussing before the adjournment is very  19 complex, it's part of a large discussion.  The house  20 system is an important system to the Gitksan and  21 Wet'suwet'en people, and part of the discussion of the  22 houses is what I explained before the adjournment.  In  23 addition, the houses feel quite strongly that they  24 are -- that there are historical reasons for the  25 boundaries of -- internal boundaries, that there are  26 many matters pertaining to the houses that must  27 continue on into the future, and there have been  28 discussions about what those matters may be.  As I  29 say, that's for the future and also for much more  30 intensive, in terms of the future, for much more  31 intensive discussions in that area.  In terms of the  32 fact that there are little or no resources on a given  33 territory and untouched resources on others, it was  34 recognized that those with the resources that have  35 been removed would need assistance, would need help  36 and -- for the future in terms of what their children  37 would do and what the people would do, and that that  38 was a possibility, the items that I described.  39 Q   Is that any different from what you've testified to  40 before the adjournment?  41 A  Well, what I wanted to point out is that it's -- the  42 house -- it's part of a complex discussion.  It hasn't  43 gone as far as it can go.  There is much to consider  44 in that area in relationship to hereditary chiefs,  45 their members, and their houses and their territories,  46 and there have been considerations about a number of  47 things, and that's one of them. 8156  Submissions by counsel  Cross-exam by Mr. Goldie  1 Q   You are a member of the House of Gitludahl?  2 A   Yes, I am.  3 Q   What is the claim of the House of Gitludahl in this  4 action?  5 A  Well, it's defined in the statement of claim.  6 Q   All right.  Thank you.  I want to go back to Mr.  7 Mowatt, please, and the question I want to put to you  8 is for what reason did Mr. Mowatt emerge in 1986 as a  9 plaintiff in his own right instead of continuing as he  10 had been up until that time under the wing of  11 Gitludahl?  12 A  Well, I pointed that out in our discussions before the  13 adjournment.  I mentioned what some of the  14 considerations were.  15 Q   Yes, and I suggested to you that one of the  16 considerations was a declaration of title from this  17 court to the territory that was claimed.  18 A   I think that one of the -- the way we framed the  19 statement of claim the first time and -- was that  20 there were -- that the hereditary chiefs and the  21 houses would be the plaintiffs.  22 Q   Yes.  23 A  And as we proceeded, it became obvious that there were  24 more houses than had been identified and that there  25 were in some cases subdivisions within those houses  26 that had become identified, and that was more a matter  27 of discussions within the houses themselves, and it  28 was -- and also from the -- I think from the point of  29 view of counsel that this was a -- I don't know  30 whether I have the right term -- a representative  31 action.  It was the first time where hereditary chiefs  32 had standing in a court case, and that the -- to the  33 best of our ability we should frame the statement of  34 claim and the plaintiffs in it to best represent the  35 houses and the corresponding territories, and that was  36 a large part of the consideration, if not -- well,  37 when I say large, I mean a very large part of the  38 consideration that it was a representative action, to  39 the best of our ability, that should be reflected.  40 And it wasn't an issue of, as you have described it,  41 of one hereditary chief playing off against another  42 one.  43 Q   And after October 1984, as you put it, houses emerged  44 which hadn't been taken into consideration in 1984?  45 A  Well, the decision to proceed with the action in the  46 summer of '84 required a tremendous amount of work  47 before the -- within a short period of time.  The 8157  Submissions by counsel  Cross-exam by Mr. Goldie  1 hereditary chiefs said that this should proceed as  2 soon as possible, and on the -- on the first -- on the  3 first pass a statement of claim was drafted which  4 was -- which included all of the territories and to  5 the best of our ability the names that represented all  6 of those territories, and in one way or another they  7 did, but as we proceeded there were amendments based  8 on this -- this -- I don't know whether to say --  9 well, this perception or this approach that the  10 hereditary chiefs, who were the heads of houses,  11 should be the plaintiffs.  12 Q   And I asked you that meant that you recognized houses  13 as they emerged that you hadn't been aware of in  14 October '84?  15 A  Well, I wouldn't say that we hadn't been aware of  16 them, but in terms of framing it, we did -- we did our  17 best in the summer of 1984, and it's reflected there,  18 and we continued to -- legal counsel continued to talk  19 to house -- houses and to take direction from them,  20 and that's what was part of the process.  21 Q   And the same thing with respect to territories.  As  22 new houses were recognized, so they had to be  23 recognized in terms of the territory each claimed?  24 A   Sometimes it wasn't obvious.  I mean, we've already  25 explained in terms of the maps -- you know -- how they  26 evolved, but it wasn't as obvious at the time where  27 and to what extent a hereditary chief either was  28 delegated to that area within the house or was -- or  29 there was an independent territory for that hereditary  30 chief.  31 MR. GOLDIE:  I'm going to refer you to the overlay of map -- or  32 Exhibit 102, which is map -- overlay map 4, and I'm  33 going to be referring to the -- to the coding on that  34 map.  Do you see the coding on that map?  Does your  35 lordship have the overlay for map 4?  36 THE COURT:  Yes, yes.  37 MR. GOLDIE:  On the right-hand side it's got, "Key to Coding,"  38 which is taken off Exhibit 102.  Would you look at  39 that, please, Mr. Sterritt.  You see there are chiefs  4 0 named from 1 to 48, and am I not correct that the  41 first chief named is, with I think one exception, the  42 original plaintiff?  43 THE COURT:  I'm sorry, Mr. Goldie, you said?  44 MR. GOLDIE:  If your lordship will see under "Chiefs."  4 5 THE COURT:  Yes.  46 MR. GOLDIE:  And it's not in the order of the statement of  47 claim. 5158  Submissions by counsel  Cross-exam by Mr. Goldie  1  THE  COURT:  2  MR.  GOLDIE  3  4  5  THE  COURT:  6  MR.  GOLDIE  7  8  9  10  11  THE  COURT:  12  MR.  GOLDIE  13  THE  COURT:  14  MR.  GOLDIE  15  Q  16  17  A  18  Q  19  20  A  21  i  22  i  23  24  25  26  27  28  29  30  31  Q  32  A  33  34  Q  35  A  36  Q  37  A   '  38  39  40  41  42  43  Q  44  A  45  46  Q  47  Yes.  :  But Luus is an original plaintiff.  Wii Gaak is an  original plaintiff.  Niist, Gwininitxw, Gwoimt.  The  spelling is a little different in some cases.  Yes.  :  Gyologet, Nigyap, which is Mr. Gunanoot, Axtii  Hiikw, Klii Yeem Laxhaa, Spookw and so on.  Now, I  think the exception is one that Mr. Sterritt spoke  about the other day, and that's Mr. Walter Wilson's  house.  Number 11, Djogaslee is the named plaintiff.  Instead of?  :  Instead of the Axtii Dzeek.  Yes.  And the other names that follow are the sides of the  house, are they not?  Not necessarily, no.  Well, wasn't that what you thought in October 21st,  1975?  As I recall, the -- for example, number 2, which is  Wii Gaak and Ax Mooggwasx, that's W-i-i space G-a-a-k  dash Ax Mooggwasx, A-x space M-o-o-g-g-w-a-s-x.  That's the way it's spelt here, which -- Ax Mooggwasx  is in the House of Wii Gaak.  The reason that he would  be identified here is because he had responsibility  for a territory up the Skeena under the House of Wii  Gaak.  And similarly, the House of Nigyap, number 7,  the reason that they're there is because they had  responsibility on -- for a territory within the House  of Nii kyap --  Yes.  -- somewhere else other than a territory that Nii kyap  himself might have been responsible for.  But they are closely related to Nii kyap?  Yes.  You testified to that.  Well, in that case -- but if you go to the first one,  Luus and Amaget are together there, but in fact  Amagyet has a historical relationship to Luus and  becomes connected with Wii elaast, and in our -- as we  proceed with the statement of claim, as I recall, Wii  elaast and Amagyet are more closely related.  Yes.  So that would not be true in the case of the first  one.  Look at 27, please.  That's Gitludaahl.  That's your  house, is it? 8159  Submissions by counsel  Cross-exam by Mr. Goldie  1 A   That's the house that I belong to, yes.  2 Q   And what I suggest are the sub-chiefs in that house  3 are Dene, Luulaks', Walp, Wawsim Laxhaa -- that's Mr.  4 Mowatt, is it not?  5 A   Yes.  6 Q   -- and Guutx Winuux.  Who is the holder of the name of  7 Gutginuxw?  8 A  Willie Morrison.  9 Q   Yes.  10 A  And in that situation there is a separate House of  11 Gutginuxw.  12 Q   Yes.  13 A  And similarly, Dene, the name, is -- has a close  14 relationship with Gitludahl but, as I understand it  15 now, is more properly a member of the House of  16 Gutginuxw, that Dene being in this case spelt D-e-n-e  17 and Gutginuxw -- what was the plaintiff number?  Do  18 you have that, Peter?  19 Q   Well, on October 17th, 1985, this is what you and Mr.  20 Williams thought the relationship was, that the head  21 chief was Gitludahl and the wings or sub-chiefs  22 consisted of the people that are named after his name?  23 A   No, no.  24 Q   You didn't think that in 1975?  25 A   In 1975?  26 Q   Yes — 1985.  27 A   No, we didn't necessarily think that.  28 Q   Well —  29 A   It was that -- it wasn't clear about the House of  30 Gutginuxw or Woosimlaxha, but that the House of  31 Gitludahl would speak to those territories at that  32 time.  33 Q   That was your thinking at the time, was it not?  34 A   Yes, but that's different than what you're saying.  35 Q   All right.  The attribution of the names after the  36 head chiefs, the named plaintiffs in this list, was  37 whatever you thought appropriate at the time?  38 A  Well —  39 Q   Is that what you're telling me?  40 A   No.  No, not in those words.  We have gone through a  41 lengthy discussion on this, and that's not what I've  42 said.  43 Q   Well, I'm trying -- we haven't discussed this before,  44 Mr. Sterritt, and I'm trying to understand why in  45 October 17th, 1985, you prepare -- or a list is  46 prepared according to the instructions given to the  47 cartographer by you and Mr. Williams that lists the 8160  Submissions by counsel  Cross-exam by Mr. Goldie  1 named plaintiffs first and then includes after it a  2 number of other houses, some of whom become individual  3 plaintiffs.  Now, what was the reasoning, what was the  4 purpose, what was the -- what was the purpose of the  5 nature of this listing?  6 A  Well, as I recall, at that point I think was that  7 we -- we had envisaged that the least number of  8 plaintiffs that represented the houses would be --  9 would be more convenient to the court and would --  10 that if we had gone to the greatest number of houses,  11 it would have been more complicated and more difficult  12 for the -- for the court.  We were trying to deal with  13 the -- the needs of the Gitksan and Wet'suwet'en  14 leaders, hereditary chiefs, and the understanding that  15 there had never been a case where the -- the leaders  16 as hereditary chiefs of houses and clans, and when I  17 say that I'm referring to the Wet'suwet'en system and  18 the Gitksan system, had come before the courts.  To  19 our knowledge, the Bear Island case was a case where  2 0 one individual was the -- or one band was a named  21 plaintiff.  The Nishga case there was five plaintiffs  22 in terms of I think five band councils.  Or in the  23 case of the Meares Island they were talking about two  24 band councils.  The Baker Lake case, as we understood  25 it, did not have hereditary chiefs as the named  26 plaintiffs.  And we thought that we were breaking new  27 ground and that it would be difficult that we were in  28 some ways working against the system, but we thought  29 it was very important, and the hereditary chiefs were  30 insisting that they should be the plaintiffs in court.  31 We tried to keep the numbers down, but in fact -- and  32 that was our first draft.  33 Q   First draft of what?  34 A  Well, that was -- the statement of claim of 1984  35 was -- was our first drafting, our first submission to  36 court --  37 Q   Yes.  38 A   -- in terms of the named plaintiffs.  39 Q   And you knew at that time that you would be adding  40 further plaintiffs?  41 A   No, I -- no, I don't -- in our -- in my mind, in any  42 event, I didn't know the nature of the system and to  43 what degree amendments could be made.  I learned  44 fairly quickly, but I -- I -- and to my recollection,  45 the hereditary chiefs understood that the statement of  46 claim was -- was more or less written in stone at the  4 7 time. 5161  Submissions by counsel  Cross-exam by Mr. Goldie  1  Q  2  3  A  4  5  6  Q  7  8  A   '  9  10  11  Q  12  13  14  A  15  Q  16  A  17  Q  18  A  19  20  Q  21  22  23  24  A  25  Q  26  27  A   '  28  29  30  Q  31  32  33  A  34  Q  35  36  A  37  Q  38  39  40  A  41  Q  42  A  43    I  MR. GOLDIE  44  45  46  47  i  I see.  And I think, as you said earlier, there  were -- new houses did emerge or new --  New houses didn't emerge.  The houses existed.  There  was an understanding that some houses would be  representing others, and we've gone into that.  And that understanding as of October 17th, 1985, is  shown in the code of Exhibit 102?  Well, it's to a large degree that understanding, but  there were other considerations that came into the  subsequent changes to the statement of claim.  Yes, I am aware of that, but I put it to you that your  understanding of the representation is set out in the  code, in October 21st, 1975, in Exhibit 102?  1984.  1985.  Just a minute.  I'm talking about the code on Exhibit 102.  I thought we were talking about the statement of  claim.  Well, you have told me that you drafted the statement  of claim in -- with the idea in mind of keeping the  number of plaintiffs to a minimum.  Have I got that  correct?  Yes.  And you have told me that you apparently knew of other  houses?  We were aware of others and that some houses would  represent them, but also there was -- it was more  complicated than that, and I have explained that.  All right.  But the resolution of your problem, as you  saw it, was to designate that one house would  represent a number of others?  Yes.  And that is set out in the code on Exhibit 102, at  least as of the date of that map?  It may be.  Yes, that's a possibility.  But you tell me that the representation is not on the  basis of there being sides to the house and the named  individuals being sub-chiefs of a head chief?  Not necessarily, no.  But it is so in the case of some?  There are some.  :  Yes.  All right.  Now, I want to go back to the  changes that were made in October of 1986 in which Mr.  Victor Mowatt was added as a named plaintiff, and he,  of course, was not the only one.  There was Mr. Joe  Wright that was added as a named plaintiff at that 8162  Submissions by counsel  Cross-exam by Mr. Goldie  1 time; am I right in that?  2 THE COURT:  Which statement of claim are we dealing with now?  3 MR. GOLDIE:  We're talking about the one that is attached to tab  4 5 in the book.  5 THE COURT:  All right.  What date?  6 MR. GOLDIE:  And that's the — that was allowed in October of  7 1986.  8 THE COURT:  Oh, is this the one that was amended pursuant to the  9 order of Mr. Justice Cumming made the 19th of August?  10 MR. GOLDIE:  No, that was the September amendment, my lord.  11 We've moved a month later, and we're dealing with the  12 changes that were made at that time.  13 THE COURT:  Well, in this book then we're looking at which tab?  14 MR. GOLDIE:  Under tab 5 attached to — attached to Mr. Ryan's  15 affidavit.  That statement of claim was allowed in  16 respect of the plaintiffs.  There was some changes  17 elsewhere but in respect to the plaintiffs.  And on  18 page 6 --  19 THE COURT:  I'm sorry, I'm not sure what I'm — I asked if this  20 was the statement of claim that was amended pursuant  21 to the order of Mr. Justice Cumming.  You say that's  22 not so.  23 MR. GOLDIE:  No.  What he -- what he allowed was done a month  24 earlier.  His order was dated August, and the  25 statement of claim was filed in September.  26 THE COURT:  So this statement of claim which is in tab 5 was  27 filed when?  28 MR. GOLDIE:  It was filed — the date-stamp is October 27th.  2 9 THE COURT:  '85?  30 MR. GOLDIE:  '86, my lord.  And it was amended pursuant to the  31 order of Mr. Justice Locke made October 22nd, 1986.  32 THE COURT:  That's why I'm — I guess there is all kinds of  33 explanations, but I would have thought then they would  34 have that order of Mr. Justice Locke mentioned at the  35 head of the statement of claim.  36 MR. GOLDIE:  Well, what is attached —  37 THE COURT:  Looking at this I would assume that this amendment  38 was pursuant to the last order mentioned in the list.  39 MR. GOLDIE:  Well, what is attached to Mr. Ryan's affidavit was  4 0 the amendment applied for.  41 THE COURT:  Oh, all right.  So it hasn't been amended yet?  42 MR. GOLDIE:  No.  43 THE COURT:  And the order was made by?  44 MR. GOLDIE:  Mr. Justice Locke on October 22nd.  4 5 THE COURT:  '8 0?  46 MR. GOLDIE:  '6.  47 THE COURT:  All right.  Thank you.  And now you're referring to? 8163  Submissions by counsel  Cross-exam by Mr. Goldie  1 MR. GOLDIE:  I'm referring to page 6 of the proposed amendment  2 to the writ of summons, which identifies Mr. Joe  3 Wright, and then to paragraph 49(A), which identifies  4 him by his Gitksan name.  5 THE COURT:  That's Joe Wright?  6 MR. GOLDIE:  7 Q   Yes.  8 What was the reason for Mr. Wright becoming a  9 named plaintiff?  10 A   I don't know.  I wasn't part of those discussions.  11 That was -- Don Ryan signed that affidavit, and there  12 was -- well, I can't speculate, but there must have  13 been discussions between counsel and Don Ryan and the  14 plaintiffs.  15 Q   You had had no discussions with Mr. Wright before?  16 A   On this?  17 Q   On this.  18 A   No.  19 Q   Do you know -- are you familiar with Mr. Wright's  20 Gitksan name?  21 A   Yes, I am.  22 Q   Did you know prior to 1986 that there was a house by  23 that name?  24 A   I'd have to look at the dates to sort that out.  I'm  25 not sure when I became aware of that -- that  26 information.  27 Q   That might be a house of which you were unaware in  28 1984 and later obtained information about?  29 A   I'm not certain about that.  In terms of this change,  30 I wasn't part of those discussions.  31 Q   All right.  Now, Gertie Watson became a plaintiff at  32 that time.  Do you know her?  33 A   Yes.  34 Q   Do you know anything of the reasons why she became a  35 plaintiff at that time?  36 A   No.  I -- I was not part of these discussions either,  37 but there were discussions going on on -- and they're  38 fairly complex, and Don was dealing with Gertie  39 Watson.  40 Q   Were you familiar with her Gitksan name?  41 A   Yes.  42 Q   Did you know that that name was the name of a house?  43 A   I'm not certain at what point I would have been aware  44 of that.  It -- I'm really not certain.  45 Q   That too might have been a house that emerged after  46 October 1984 of which you had been unaware at that  4 7 time? 8164  Submissions by counsel  Cross-exam by Mr. Goldie  1 A  Well, I'm not -- I don't think the word emerged is the  2 right word.  3 THE COURT:  The word you used, Mr. Sterritt, was identified —  4 THE WITNESS:  Yes.  5 THE COURT:  -- when you first gave your evidence.  6 THE WITNESS:  The lax seel or ganada -- lax seel is l-a-x space  7 s-e-e-1, and ganada is g-a-n-a-d-a.  Those terms are  8 used interchangeably.  -- from Kitsegukla are fairly  9 complex.  It was difficult to determine that.  I might  10 have referred to the House of Gaxsbgabaxs or the house  11 of -- that's spelt G-a-x-s-b-g-a-b-a-x-s, and the  12 House of Molxan, and that's M-o-l-x-a-n, or the House  13 of Wiis Dis, that's W-i-i-s D-i-s, but they are  14 closely related.  It's quite complex.  Don Ryan worked  15 out that relationship, and I was aware of that, but I  16 don't recall just exactly how that went.  But as I  17 say, there is a close relationship.  18 MR. GOLDIE:  19 Q   I am instructed that there is no name on Exhibit 102  20 under the chiefs' coding that appears to approximate  21 the name of Mr. Joe Wright.  That would suggest, would  22 it not, that you had not identified his house?  23 A   Yes.  24 Q   When you say yes, you agree with my suggestion that  25 his house had not been identified as of October --  26 either October 1984 or October 1985?  27 A   Yes, it's not on the statement of claim.  28 Q   It's not on the statement of claim, and it isn't on  29 Exhibit 102, is it?  30 A   Yes, it does not appear on there.  31 Q   Yes.  When you say there, you're referring to Exhibit  32 102?  33 A   Yes.  34 Q   Now, I am instructed that -- well -- and if you had  35 not identified that house, does it not follow that you  36 had not identified the territory at that time?  37 A  Well, there are areas where Xsgogimlaxha had gone to,  38 but it was difficult for me to determine what the  39 nature of his use of those territories were, and in  40 the evidence of Stanley Williams he pointed out that  41 Xsgogimlaxha had close ties to the Wet'suwet'en and  42 had come to Kitsegukla and that in terms of the lands  43 that he went to it was with the -- with the -- well, I  44 don't know if he said the permission, but it was  45 because of his -- because other houses took him into  46 those areas, but I have not -- and also, as I  47 understand it, in terms of this relationship between 8165  Submissions by counsel  Cross-exam by Mr. Goldie  1 the Wet'suwet'en and the Gitksan for this -- for this  2 person, that's really all that I have to go on.  I  3 can't say much more about that.  4 Q   Well, you're talking about events which have taken  5 place since October of 1985?  When I say events, I  6 mean events which have given you the knowledge that  7 you are just speaking of now.  8 A  Well, I was aware of the relationships to the  9 Wet'suwet'en, but I didn't -- it wasn't clear to me  10 just what had happened.  Overall I've known that --  11 that that house has -- has had close relationships  12 with the Wet'suwet'en.  13 Q   But, Mr. Sterritt, I thought you told us a few minutes  14 ago that you knew so little of Mr. Wright's house that  15 you hadn't attributed him to anybody else in the list  16 on Exhibit 102 and that it was likely that you weren't  17 aware that there was a house by that name?  18 A   No, I'm not -- no, I don't think I said that.  That's  19 not what I said.  2 0    THE COURT:  What you said is you don't know when you learned  21 that that was the name of a house.  22 THE WITNESS:  Yes, I knew about Xsgogimlaxha and the  23 relationships to the Wet'suwet'en and his presence in  24 Kitsegukla.  Now, just let me check here.  Can you  25 repeat your question again, please?  26 MR. GOLDIE:  27 Q   Well, having re-examined Exhibit 102, as you have just  28 a minute ago, would you agree with me that as of  29 October 17th, 1985, you were unaware of his house at  30 least to the degree of listing it on Exhibit 102?  31 A   Yes, I think that that -- I was aware of the person,  32 aware of the name, but as to the identity of the  33 house, I -- yes, that would be true.  34 Q   And as to the identity of the territory that would be  35 true also?  36 A  Well, I was aware of areas that he was going to, but  37 the territories were areas that the House of Gwis gyen  38 had held for many years.  39 Q   As you later found out?  40 A  Well, I'm not sure what you mean by that.  41 Q   Later, after October 21st, 1985, or October 17th,  42 1985.  43 A   I don't know the basis for that.  44 Q   Well, that's the date of Exhibit 102, so we're told.  45 Doesn't it follow, Mr. Sterritt, that sometime after  46 Exhibit 102, where Mr. Wright isn't listed, and  47 October of 1986 you or Mr. Ryan found out enough to 8166  Submissions by counsel  Cross-exam by Mr. Goldie  1 apply to have him listed as a separate plaintiff  2 claiming separate territory?  3 A  Well, I wasn't -- I didn't participate in the  4 amendment to the statement of claim.  I'd have to see  5 the -- where is the other map?  The -- there was an  6 area identified for the House of Xsgogimlaxha, and as  7 I conducted further work on that, it was clarified  8 that -- or pointed out to me that they had come into  9 the area, they were from the -- had been in the  10 Wet'suwet'en area, they had come in, and they had uses  11 there, and Stanley Williams testified to that.  12 Q   Yes.  My only question was that that process took  13 place after Exhibit 102 had been prepared.  Surely  14 that's so?  15 A   Yes.  16 MR. GOLDIE:  Now, I am instructed that Gertie Watson's house --  17 THE COURT:  Before you go on, Mr. Goldie, could you show me on  18 the map where Xsgogimlaxha's assigned territory is?  19 THE WITNESS:  It's on this one here.  20 MR. GOLDIE:  You're referring to Exhibit 5.  21 THE COURT:  I'm sorry, where?  22 THE WITNESS:  I don't know what this exhibit number is.  23 MR. GOLDIE:  Well, it is Exhibit 5.  24 THE WITNESS:  It's right in this area here.  Kitsegukla is very  25 close to there, and that's it along there.  2 6 THE COURT:  Thank you.  27 MR. GOLDIE:  28 Q   Now, would you show his lordship where that territory  2 9 is on Exhibit map 9A?  30 A   Here's Hazelton, here's Kitsegukla, and this is the  31 territory.  That territory is drawn in this area here.  32 THE COURT:  261B?  33 THE WITNESS:  That's 2.G.18, I think.  34 THE COURT:  18.  All right.  35 THE WITNESS:  Could be 18.  And it's just —  36 THE COURT:  A part of that?  37 THE WITNESS:  — a strip in there.  38 MR. GOLDIE:  The witness has referred your lordship to Exhibit  39 102.  40 THE COURT:  Oh, I'm sorry, yes.  41 MR. GOLDIE:  Which is the 1975 map.  I was asking him to  42 indicate --  4 3 THE COURT:  Not '75.  44 MR. GOLDIE:  '85, yes.  I was asking him to indicate it on map  45 9A, which is, in my understanding, the final map.  4 6 THE COURT:  Well —  47 MR. RUSH:  This is 9A over here. 8167  Submissions by counsel  Cross-exam by Mr. Goldie  1 THE WITNESS:  This is 9A here.  2 MR. GOLDIE:  Yes, that's what I'm talking about.  3 THE WITNESS:  That's not 9A.  4 THE COURT:  No.  5 THE WITNESS:  Right in here.  This is not 9A.  6 MR. GOLDIE:  7 Q   That's map 5.  That's the same thing as the --  8 A   This is the area right in here and -- under the name  9 of Wiis Dis, W-i-i-s space D-i-s.  And Kitsegukla is  10 right in that area there.  11 THE COURT:  Thank you.  12 MR. GOLDIE:  13 Q   Do I take it then that there is now somebody else  14 speaking for Joe Wright?  15 A   In terms of what?  16 Q   Speaking for him.  17 A  Well, I don't know whether he is still a named  18 plaintiff.  I'd have to check the list as of the  19 latest statement of claim.  20 THE COURT:  How is Wiis Dis spelt again?  21 THE WITNESS:  W-i-i-s.  22 THE COURT:  Yes.  23 THE WITNESS:  Space D-i-s.  24 THE COURT:  Thank you.  Well, can you explain to me why is that?  25 Why is that shown as a separate territory in his name?  26 THE WITNESS:  Well, what was explained with the evidence of  27 Stanley Williams is that Xsgogimlaxha is a hereditary  28 chief who came into Kitsegukla from the Wet'suwet'en  29 and was given some privileges to go into certain areas  30 there and -- but -- and may have ended up with a  31 trapline in an area within someone else's territory,  32 but in fact the traditional territory was the property  33 of someone else, and this other person, Wiis Dis, as  34 it was located by me, Wiis Dis, that is the territory  35 of Wiis Dis, not the territory of Xsgogimlaxha.  I  36 have not been able to identify a territory for  37 Xsgogimlaxha within the Kitsegukla territories.  38 MR. GOLDIE:  39 Q   Or anywhere within the claims area?  40 A   Yes, but I don't know what the relationships are  41 between Xsgogimlaxha and other Wet'suwet'en clans or  42 houses.  43 THE COURT:  All right.  Well, is Xsgogimlaxha a plaintiff now?  44 MR. GOLDIE:  45 Q   Yes, he is, my lord.  46 But I suggest to you that there is no property or  47 no territory identified in his name in the latest map 516?  Submissions by counsel  Cross-exam by Mr. Goldie  1 that has been presented to the court.  2 A   Yes, that's right.  3 Q   Now, Gertie Watson, I am instructed, is under number  4 15 on the list of chiefs on Exhibit 102, the head  5 chief or the first named chief being Gwag'lo.  Would  6 you agree with that, Mr. Sterritt?  7 A   Yes, Gwag'lo is named and followed by two other names  8 there.  That's spelt G-w-a-g --  9 MR. GOLDIE:  And —  10 THE COURT:  Just a moment.  11 THE WITNESS:  I haven't finished.  — apostrophe-1-o.  12 THE COURT:  Is that G-w-a-g-1-apostrophe-l-o or —  13 THE WITNESS:  G-w-a-g-apostrophe-1-o.  That's the way it appears  14 on 102.  15 THE COURT:  All right.  16 MR. GOLDIE:  17 Q   And Gwagl'lo was one of the original plaintiffs, that  18 is to say, one of plaintiffs named in the 1984  19 statement of claim?  20 A   Yes, and is still a named plaintiff.  21 Q   And is still a plaintiff?  22 A   Yes.  23 THE COURT:  Which one of these two names is Gertie Watson?  24 THE WITNESS:  The Gaxsbgabaxs.  I'll spell that.  Oh, here it  25 is.  G-a-x-s-b-g-a-b --  26 THE COURT:  I'm sorry, b-g?  27 THE WITNESS:  Yes, a-b-a-x-s.  28 MR. RUSH:  It's number 7 on the plaintiffs' list.  2 9 THE COURT:  Thank you.  30 MR. GOLDIE:  31 Q   Gwagl'lo is Ernie Hyzims?  32 A   Yes.  That's spelt H-y-z-i-m-s.  33 Q   Does Gertie Watson hold a name in the House of  34 Gwagl'lo?  35 A  Well, as I mentioned earlier, it's a very complex --  36 as I understand it, Gaxsbgabaxs and Gwagl'lo are  37 separate houses.  Now -- are in separate houses.  38 Gaxsbgabaxs and Wiis Dis, W-i-i-s space D-i-s, and  39 Molxan -- now, I want to make sure about that  40 spelling.  Well, M-o-l-x-a-n.  -- are more closely  41 related and -- oh, there is one other.  There is two  42 others.  There's Duubisxw, D-u-u-b-i-s-x-w, and there  43 is Haakasxw, and that may appear here.  44 Q   Look at 18, please.  45 A   It's H-a-a-k-a-s-x-w, and on here Molaxan is spelled  46 M-o-l-a-x-a-n.  Now, if I remember correctly, Molaxan  47 is dead.  I mean, there is -- it -- that name was 8169  Submissions by counsel  Cross-exam by Mr. Goldie  1 being held by George Milton as with the first name,  2 Haakasxw, which I spelt a couple minutes ago.  I'll  3 spell it for you.  H-a-a-k-a-s-x-w.  George Milton was  4 Haakasxw, and he held the name Molaxan as well.  5 George Milton died, and I think Larry Wright took the  6 name Haakasxw.  Gertie Watson -- there is a close  7 enough relationship amongst them that Gertie Watson  8 could represent any of those, depending on what they  9 decided to do.  And I think that there is not a holder  10 for the name Wiis Dis.  I think that that person is  11 also dead.  I could be wrong about that, but that's my  12 recollection.  And that Gertie Watson was looking  13 after the name Wiis Dis in the absence of someone  14 being named it.  Now, I'm not -- I'm not certain about  15 that, but that's what I recall.  So that brings us to  16 how those names appear and in terms of what -- where  17 they go from there and appear on the final map, and I  18 would have to look at that to see exactly what that  19 is, but I think that -- well, I will look.  20 Q   Well, Mr. Sterritt, I'm not interested.  My question  21 is not yet directed to the question of territory.  My  22 question at this point is did Gertie Watson hold a  23 name in the House of Gwagl'lo?  24 A   I don't know that.  I don't know.  She may have held a  25 name in that house at some time, but I don't know  26 that.  27 Q   Can you tell his lordship for what reason you  28 apparently concluded in Exhibit 102 that Gwagl'lo  29 could speak for Gertie Watson's house?  30 A   Because at that time they may have chosen to have  31 Ernie Hyzims speak for her.  32 Q   That's speculation on your part?  33 A  Well, I don't recall the discussions.  I wasn't  34 involved in all the discussions in terms of the  35 plaintiffs.  I dealt with some of the areas, and I  36 have a better recollection of that, but I don't recall  37 the discussions on this one.  38 Q   All right.  Thank you.  On what basis was it concluded  39 that Gertie Watson should be a separately named  40 plaintiff, if you know?  41 A  Well, I think it was a number of the hereditary  42 chiefs, including Gertie, discussed the family  43 relationships of the names, all of those names that I  44 have just discussed, and I think it was on that basis  45 that they made recommendations to legal counsel.  46 Q   You testified a few minutes ago that Joe Wright was  47 recognized as a separate plaintiff and a separate 5170  Submissions by counsel  Cross-exam by Mr. Goldie  1  2  3  1  4  A  5  Q  6  A  7  1  8  9  1  10  Q  11  12  A  13  THE  COURT:  14  15  16  17  THE  WITNES  18  19  20  21  22  23  MR.  GOLDIE  24  Q  25  A  26  1  27  Q  28  29  30  A  31  Q  32  33  A  34  Q  35  36  A  37  1  38  39  40  41  42  1  43  44  45  46  MR.  GOLDIE  47  THE  COURT:  house in part, according to my note, because he had a  trapline on a certain territory.  Did that apply to  Gertie Watson?  I didn't say that.  I'm sorry, please correct me.  I said that, as I understood it, Don Ryan had  discussions with Joe Wright and perhaps others and as  a result of that he was named as a plaintiff, but I  didn't say it was as a result of a trapline.  I have a note that a reference was made by you to a  trapline.  You mean --  Yes, you said he was -- he came from Wet'suwet'en  country and was thought to use -- to Kitsegukla and he  was allowed to use some territory and may have had a  trapline you said.  S:  But I was separating the two issues.  How he  became named as a plaintiff I'm not -- you know -- I'm  not -- I wasn't part of those discussions.  Territory  was identified for me, and it wasn't clear to me the  nature of that.  It may have been because of a  trapline.  All right.  And that was -- you know -- the second side to that  discussion.  Well, my question was did the existence or nonexistence of a trapline have anything to do with the  identification of Gertie Watson as a named plaintiff?  No, not to my knowledge.  All right.  Now, with respect to territory, her  territory is recognized in your latest map, is it not?  Yes, it is .  Yes.  And that was, of course, subsequent to Exhibit  102?  Territory was -- Gaxsbgabaxs -- I was aware that  Gaxsbgabaxs had territory in a couple of areas, and,  oh, I think that I may have been aware of that as long  ago as -- well, maybe as long ago as 1980, but I'd  have to check my notes.  But certainly I have known  that Gaxsbgabaxs has had territory because Stanley  Williams talked to me about it and Eli Turner.  Those  are two people, in any event, who have mentioned it.  But just at what point they identified it I couldn't  be certain.  :  All right.  Could I see where her territory is, please, on map 5171  Submissions by counsel  Cross-exam by Mr. Goldie  1 9A?  2 THE WITNESS:  On —  3 MR. GOLDIE:  Perhaps Exhibit 5 first.  4 THE COURT:  All right.  Well, Mr. Sterritt, counsel want you to  5 do on it 5.  6 THE WITNESS:  Well, without reference to the boundaries that are  7 here, the area of Gaxsbgabaxs' territory goes --  8 extends from the -- do you remember Kitsegukla?  9 THE COURT:  Oh, yes.  10 THE WITNESS:  From the west side of the Skeena there across —  11 well, this -- across like so and down into -- into  12 this area enveloping the Eagle territories, and then  13 there is another territory.  It's identified on this  14 map right in this area.  15 THE COURT:  Under whose name?  16 THE WITNESS:  Under Gaxsbgabaxs.  17 THE COURT:  Oh, yes.  18 THE WITNESS:  And in this case it's identified as Haakasxw,  19 H-a-a-k-a-s-x-w, and runs from, as I say, from  20 opposite Kitsegukla right around to the -- just across  21 the Kitwancool River, which runs into the Skeena near  22 Kitwanga.  23 MR. GOLDIE:  24 Q   Now 9A.  25 A   On 9A Gaxsbgabaxs is right here and identified as  26 such, and Gaxsbgabaxs is right here and identified as  27 such.  And then on this side, as I recall, Gaxsbgabaxs  28 is representing Wiis Dis, W-i-i-s space D-i-s.  29 THE COURT:  Wiis Dis is not a plaintiff?  30 THE WITNESS:  It's — well, it's a situation where — no, Wiis  31 Dis is not a plaintiff.  As I recall, Wiis Dis is --  32 the name Wiis Dis is looked after by Gaxsbgabaxs, and  33 there is no living person named Wiis Dis at this time.  34 THE COURT:  All right.  35 MR. GOLDIE:  36 Q   Is there a house by that name?  37 A   I don't recall.  As I mentioned before, it's  38 inter-connected with Gaxsbgabaxs, so I don't recall  39 that at this time.  40 MR. GOLDIE:  Well, I point out that Gaxsbgabaxs does not purport  41 to represent the house that you have just -- or the  42 name that you have just mentioned.  That's your  43 understanding, is it?  44 MR. RUSH:  Today?  45 MR. GOLDIE:  Today.  46 MR. RUSH:  Then you should look at the pleadings today.  47 MR. GOLDIE:  Well, I am going to put the pleadings in front of 8172  Submissions by counsel  Cross-exam by Mr. Goldie  1 him today.  2 THE COURT:  You mean as in the statement of claim?  3 MR. GOLDIE:  4 Q   In the statement of claim, yes, referring to paragraph  5 49(C).  6 A  What page?  Will that be in here?  7 Q   It's not in there.  This is the statement of claim  8 which is filed May the 11th, 1987, and I am referring  9 you to paragraph 49(c).  Does that refer to Gertie  10 Watson?  11 A   Yes, it does.  12 Q   And that does not allege that she speaks for any house  13 other than her own?  14 A   Gaxsbgabaxs is looking after the name of Wiis Dis, and  15 they have sat down and discussed this, that house,  16 those family members, and she's representing that  17 territory.  18 Q   But not so far as the statement of claim is today  19 framed?  20 A  Well, no, it's not there, but in terms of -- she --  21 she has the responsibility for Wiis Dis, and I am not  22 certain if there is a separate house of Wiis Dis, or  23 if there is a separate house, whether it isn't  24 connected in the same way that Walter Wilson,  25 Djogaslee, D-j-o-g-a-s-l-e-e, Walter Wilson, and Axtii  26 djeek, A-x-t-i-i space d-j-e-e-k -- in the same way  27 that they can be identified in separate houses but are  28 responsible for the -- and work on the land  29 inter-connectedly.  30 MR. GOLDIE:  All right.  Thank you.  31 THE COURT:  Can we adjourn at this moment?  32 MR. GOLDIE:  This is convenient.  My lord, I have overlooked it,  33 and perhaps it's not even necessary or customary, and  34 I am not suggesting it is necessary, but would it be  35 appropriate to give this witness the usual warning  36 with respect to discussions during cross-examination?  37 THE COURT:  I'll ask Mr. Rush to do that.  38 MR. GOLDIE:  Thank you.  39 THE COURT:  Thank you.  Two o'clock.  40 THE REGISTRAR:  Order in court.  This court stands adjourned  41 until 2:00 p.m.  42  4 3 (PROCEEDINGS ADJOURNED)  44  45  46  47 8173  Submissions by counsel  Cross-exam by Mr. Goldie  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  8 Leanna Smith  9 Official Reporter  10 United Reporting Service Ltd.  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 (PROCEEDINGS RECONVENED AFTER LUNCHEON RECESS) 8174  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE REGISTRAR: Order in Court.  In the Supreme Court of British  Columbia, in the matter of Delgamuukw versus Her  Majesty the Queen continuing, my lord.  Mr. Sterritt, may I remind you you're still under  oath?  THE WITNESS:   Yes.  THE COURT:  Goldie?  MR. GOLDIE:  Q   Mr. Sterritt, you, of course, knew Martha Brown before  her death?  Yes, you've referred to Kliiyem lax haa.  Kliiyem lax haa?  Yes.  Is there any other Martha Brown?  There have been, yes.  But we're talking about the one who was a plaintiff?  Yes.  And she died when?  Well, if you don't remember that's  all right.  At the time of her -- before she died she  was the head of her house?  Yes.  And from the first she was a named plaintiff?  Yes.  And subsequently the statement of claim was amended so  that she was alleged to speak for Alice Wilson,  Hawaaw?  Hawow, H-a-w-o-w.  Did you say o-w?  Well, it could be a-w.  I'm not sure.  Do you have a  better spelling there?  MR. GOLDIE:   The spelling I had was H-a-w —  MR. RUSH:  It's number 30 on the list.  A-a-w.  THE COURT:  I'm sorry H-a-w —  MR. GOLDIE:  H-a-w-a-a-w.  THE COURT:  Number?  MR. RUSH:  Excuse me, my lord, it's 30 on the list.  THE COURT:  Thank you.  MR. GOLDIE:  Q   And Mr. Arthur Wilson, Wii'muglusxw.  You want to look  under tab 5, the statement of claim, paragraph 8.  Yes.  And that's Mr. Arthur Wilson, is it?  Yes, it is.  And Gertie Morrison?  That's Xsaxgyoo, X-s-a-x-g-y-o-o.  Right.  And you spoke to the addition of those as  A  Q  A  Q  A  Q  A  Q  A  Q  A  Q  A  Q  A  A  Q  A  Q  A  Q 8175  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 named plaintiffs when the matter came before Mr.  2 Justice Cumming on August the 18th, 1986?  3 A   Yes, I believe I did.  4 Q   And when -- you say that you attended some parts of  5 Martha Brown's commission evidence.  To your knowledge  6 she did not speak for Alice Wilson or Arthur Wilson or  7 Gertie Morrison on that commission, did she?  8 A  At that time she would have been speaking on their  9 behalf because they are -- they are closely related,  10 and in terms of the house of Kliiyem lax haa.  11 Q   Right.  12 A  And I did not attend -- I can't remember just how  13 much, whether it was -- it might have been an  14 afternoon or less that I attended to one of the  15 commissions of Martha Brown.  16 Q   Well, her commission evidence was taken on October,  17 1985 and January 1986, was it not?  18 A   I don't know.  19 Q   Well, I assume that I've given you the correct range  20 of dates.  That would be before an application was  21 made to add Alice Wilson, Arthur Wilson and Gertie  22 Morrison, as people for whom Martha Brown could speak,  23 if that application took place in September of 1986?  24 A   Yes.  25 Q   Yes.  And the -- you say those three people were  26 closely related, that is to say they were members of  27 the wolf clan?  28 A   Yes.  29 Q   And when Exhibit 102 was prepared, item 9 indicates  30 that two or one of them was a sub-chief in the house  31 of Kliiyem lax haa, that is to say, Arthur Wilson;  32 does that accord with your understanding?  33 A   Yes.  34 Q   And the other sub-chief in that house was stated to be  35 Wii elaast.  That's Jimmy Angus, isn't it?  36 A   Yes.  37 Q   But no reference was made on Exhibit 102 to either  38 Alice Wilson or Gertie Morrison?  If you want to  39 confirm that, please do.  40 A  As I recall, their names were not on the statement of  41 claim at the time you're referring to.  42 Q   No, I'm sorry, I'm speaking of Exhibit 102, the coded  4 3 map.  44 A   Oh, okay.  45 Q   And it's item 9.  46 A   Yes, there's three chiefs' names there.  47 Q   One of them being Martha Brown? 8176  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 A   Yes.  2 Q   The other being Arthur Wilson?  3 A  Wii'muglusxw,  W-i-i space M-u-g-i-1-s-x-w.  4 Q   And the other being Jimmy Angus?  5 A  Which appears here as Ee'laast, E-e'-e-1-a-a-s-t.  6 Q   Well, that was how Wii elaast in this case was spelled  7 at that time?  8 A   Yes.  9 Q   The omission of Alice Wilson and Gertie Morrison from  10 the list on Exhibit 102 indicates that you were  11 unaware that they were sub-chiefs in the house of  12 Kliiyem lax haa at that time?  13 A   No.  No.  14 Q   Why were they not found on Exhibit 102?  15 A   Because Kliiyem lax haa was representing them.  16 Q   Well, I suppose I ought to put it this way:  Why were  17 they not named like Wii elaast and the Gitksan name  18 for Arthur Wilson?  Why name two and not the others?  19 A   I don't recall exactly why the distinction at the  20 time.  I don't recall that there was any -- any  21 particular reason for either omitting them or adding  22 them.  I don't recall that.  23 Q   Yes.  Was it possibly because you had not identified  24 the houses of Alice Wilson and Gertie Morrison at the  25 time of Exhibit 102, namely, October 1985?  26 A   That could be, but we -- pardon me.  Wii'muglusxw,  27 that's W-i-i space m-u-g-1-s-x-w, Hawaaw, H-a-w-a-a-w,  28 and Xsaxgyoo, X-s-a-x-g-y-o-o, are very closely  29 related to Kliiyem lax haa, and I don't recall the  30 reasons why we decided to identify them later, except  31 that they do have a relationship to some of the  32 territories of Kliiyem lax haa, and they -- it's  33 recognized that Kliiyem lax haa maintains her  34 relationship to those lands as well, even though they  35 have separately identified houses.  And this is  36 somewhat similar to the situation with Djogaslee,  37 D-j-o-g-a-s-l-e-e, and Axtii Hiikw, A-x-t-i-i space  38 d-j-e-e-k.  39 Q   Do you remember being examined before Mr. Justice  40 Cumming with respect to these additional witnesses to  41 be -- or additional chiefs to be spoken to by Martha  42 Brown?  43 A   Yes, I recall that.  44 Q   Would you look under tab 3, please, and go to page 31?  45 A  Which page?  46 Q   Thirty-one.  And from lines 8 to 32 you identify who  47 Alice Wilson is and who Arthur Wilson is and who 8177  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 Gertie Morrison is, right?  2 A   In line 38?  3 Q   I said 8, line 8 to 32.  4 A   Now, 8 to what, 32 did you say?  5 Q   Yes.  Uh-huh.  6 A   Okay.  7 Q   And my question was:  You identified the English names  8 of the three people who were being added and the  9 English name of Kliiyem lax haa?  10 A   Yes.  11 Q   Now, I'm going to read you from line 33 to line 13 on  12 page 32:  13 "Q   Martha Brown is Kliiyem lax haa, my lord.  14 Any one of these three under a disability?"  15  16 And I might pause there.  The three we're talking  17 about is Alice Wilson, Arthur Wilson and Gertie  18 Morrison.  19  2 0 "A   No.  21 Q   Does each of those three houses have its own  22 lands?  23 A   The house of Hawaww and Wii'Mugolsxw and  24 Kliiyem Lax Haa have separate lands that are  25 lands that belong to that group.  26 Q   Well, lands that belong to each of those  27 houses?  2 8               A   Yes."  29  30 Was that your -- was that answer "yes" a correct  31 answer?  32 A  Well, the answer at line 36 refers to the houses as  33 having separate lands that are lands that belong to  34 the group, and what I mean by that is that they have  35 delegated responsibilities for each of those separate  36 lands, and they are -- and they are a group.  They  37 are --  38 Q   Mr. Sterritt, the question at line 39 was:  39  40 "Q   Well, lands that belong to each of those  41 Houses?"  42  43 And your answer to that was "yes".  Is that a  44 correct answer?  45 A   No.  I would say that the first answer -- the main  46 point that I want to make is that the house  47 relationship here is similar, if not identical, to the 517?  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 house relationship of Djogaslee and Axtii Hiikw, and  2 they could be identified as a house, but they have  3 very close relationships, and they have a  4 responsibility for the lands.  5 Q   Let me go on.  6  7 "Q   What about the last one?  8 A   Xsaxgyoo?  9 Q   Yes.  10 A   To my knowledge there is not a separate  11 piece of land as a territory that would be  12 Xsaxgyoo's, but there may be a fishing site.  13 Q   Does Xsaxgyoo's land, that is to say the --  14 are each of these three hereditary chiefs of  15 their houses?  16 A   Yes.  17 Q   And each of those three is by reason being  18 hereditary chiefs authorized to represent  19 the interests of the members of their  20 houses?  21 A   Yes.  22 Q   Does the House of Xsaxgyoo share lands with  23 the house of Kliiyem lax haa?  24 A   Xsaxgyoo could share lands with any of the  25 other three.  26 Q   I see.  But the other three have, however,  27 separate and distinct lands, one from the  28 other?  2 9 A   Yes."  30  31 Was that answer "yes" correct?  32 A   Yes, to the extent that they have -- Wii'muglusxw has  33 a territory at Sgan Sna'at, S-g-a-n space S-n-a'a-t,  34 which he is particularly responsible for.  Kliiyem lax  35 haa was identified with the territory at the head of  36 the Skeena at Miin Lax Mihl, M-i-i-n space L-a-x space  37 M-i-h-1.  Hawaaw and Kliiyem lax haa are identified  38 with the territory west of the -- or pardon me, east  39 of the Kispiox River near Ant Gilek, that's A-n-t  40 space G-i-1-e-k, and Kliiyem lax haa is identified  41 with the territory west of the Kispiox in the same  42 area, but Dogogeiss is a sub-chief in that house,  43 D-o-g-o-g-e-i-s-s, who also is in that area with  44 Kliiyem lax haa.  Xsaxgyoo, as I mentioned, may have a  45 fishing site, and I'm not certain about that, but  46 shared lands, and was with the other hereditary chiefs  47 wherever they went. 8179  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 MR. GOLDIE:   Well, the -- let me refer you to a response that  2 you made to his lordship or --  3 THE COURT:  Excuse me a moment, Mr. Goldie.  What was the name  4 of the property that Wii'muglusxw had at -- what did  5 you call it?  6 THE WITNESS:   Sgan Sna'at, that's S-g-a-n space S-n-a'a-t.  7 THE COURT:  Thank you.  8 THE WITNESS:   I have to spell a word here to — X-s-a — just e  9 second -- x-g-y-o-o.  10 THE COURT:  Thank you.  Mr. Goldie.  11 MR. GOLDIE:  Now, you made a response to his lordship to the  12 effect that these lands are all the same?  13 MR. RUSH:  Which lands?  14 MR. GOLDIE:  15 Q   The lands of these three people and Kliiyem lax haa.  16 Well, let me, in case you're having difficulty  17 recalling that, refer you to page 36, line 26:  18  19 "THE WITNESS:  Number seven in my affidavit, your  20 honour, Hawaaw', Wii'mugolsxw, Xsaxgyoo,  21 Kliiyem Lax Haa, those are brothers and  22 sisters, and Kliiyem Lax Haa can easily  23 speak on behalf of all of them.  They could  24 be in one house or their own house.  They  25 are talking about the same lands.  One, it  2 6 would be between the family whether Hawaaw'  27 went to a separate piece of land one year  28 and another one the next year, and it would  29 be the same lands that are under the houses  30 of Kliiyem Lax Haa, Wii'mugolsxw and  31 Xsasgyoo."  32  33 The lands are interchangable within that group  34 apparently?  35 A   No.  36 Q   Is that right?  37 A   No.  No.  38 Q   Well, what did you mean, then, Mr. Sterritt, when you  39 said, and I quote:  40  41 "It would be between the family whether  42 Hawaaw' went to a separate piece of land one  43 year and another one the next year,"  44  45 A   It -- I was explaining that they were closely  46 together, that Hawaaw could go to any of the  47 territories of Kliiyem lax haa if they discussed it, 8180  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 as could any of the others, but there is an area that  2 Hawaaw is identified with, and that's the area east of  3 the Kispiox River, Ant Gilek.  That's A-n-t space  4 G-i-1-e-k.  And the fact that they could go to any of  5 those areas, for example, my uncle's cousin Georgie  6 Wilson was Wii'muglusxw prior to Art Wilson, and he  7 used to go to Miin Lax Mihl, that's M-i-i-n space  8 L-a-x space M-i-h-1, with my uncle and with Phillip  9 Wilson long ago.  But my uncle, who's the brother of  10 Gertie Morrison, when he was growing up, and Gertie,  11 both went with their grandmother to the area all along  12 the east side of the Kispiox River beyond Xsan Seegit  13 and Ant Gilek.  Xsan Seegit is X-s-a-n S-e-e-g-i-t,  14 and Ant Gilek is A-n-t space G-i-1-e-k, and that is  15 the area on the east side of the Kispiox.  16 Now, Gertie Morrison subsequently became Xsaxgyoo,  17 and if I remember right, her mother was Xsaxgyoo.  18 That's X-s-a-x-g-y-o-o.  19 Q   Well, perhaps I can put it this way, Mr. Sterritt.  If  20 Kliiyem lax haa in October of 1984 was speaking for  21 these people, why was it necessary in 1986 to add them  22 to the statement of claim as plaintiffs?  23 A   I would have to -- I would have to -- well, I can't do  24 it, but the -- I don't know what the instructions of  25 the lawyers were, but it was in order to clarify a  26 relationship and some of the wings.  Well, they're not  27 entirely wings, but senior chiefs within the house.  28 They could -- some of them could be considered wings,  29 but senior chiefs within the house of Kliiyem lax haa  30 and the areas that they had been delegated to within  31 that house.  And they are identified as separate  32 houses, just as Djogaslee and Axtii Hiikw and  33 Axweegasxw.  Axweegasxw is A-x-w-e-e-g-a-s-x-w.  34 Q   Mr. Sterritt, it was you who was speaking to this  35 amendment, wasn't it?  36 A   Yes.  37 Q   Not Don Ryan?  38 A   No.  39 Q   No.  So you don't know what happened?  40 A   No.  I explained in the affidavit the relationship.  41 Q   Yes.  42 A  And that it was -- well, I can't remember my exact  43 words, but it was an effort to demonstrate the  44 relationship and the other senior members of the  45 house, and also that there were -- that they did have  46 separate houses, separately named houses.  When I say  47 separately named houses, I'm not referring to in the 8181  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  Q  A  Q  A  THE COURT  THE  THE  THE  MR.  THE  MR. RUSH  THE  THE  MR.  strict sense, but that there are houses of Xsaxgyoo  within or beside the house of Kliiyem lax haa.  Yes.  And they're closely related.  I believe you've stated that, but I understood you to  say that you cannot explain why the sub-chiefs or the  heads of the wings of Kliiyem lax haa wish to be  identified as separate plaintiffs in the action?  Only to demonstrate that -- well, Wii'muglusxw as a  house had been identified with the territory at Sgan  Sna'at, S-g-a-n space S-n-a'a-t, that Hawaaw was  identified also with a piece of territory, but  basically probably more to demonstrate that the  relationship was more complex than it appeared  earlier.  Are their lands allocated on 9A to these various  chiefs?  WITNESS:   The territories -- Kliiyem lax haa is at the head  of the Skeena, and Kliiyem lax haa -- or Wii'muglusxw,  I believe, is at Sgan Sna'at, and Kliiyem lax haa is  on either side of the Kispiox, but I don't think that  we have identified separately that Hawaaw is on --  separately on the territory on the east side of the  Kispiox.  COURT:  There's no separate territory for Hawaaw?  WITNESS:   Well, it's the area that Hawaaw is entitled to go  to, but I don't believe it's separately identified.  I'll have to check that.  RUSH:  Well, I mean —  WITNESS:   I think that it is identified.  I'm not certain,  but I think that these relationships are also  identified within the affidavits, you know, by the  deponents.  I believe that it's in there as well.  It  demonstrates, or it indicates, the relationship in  terms of each of those territories.  My interjection was simply on the basis that if Mr.  Sterritt would be assisted by looking at 9A to answer  your lordship's question, it might be a preferred way.  Yes.  If you need to do that, Mr. Sterritt.  WITNESS:   Okay.  There.  That's the one on the east side of  the Kispiox that I was talking about.  GOLDIE:  Q   That's in the name of Kliiyem lax haa?  A   Yes.  And the one on the west side?  I'm not sure what it says in the affidavit.  I would  have to refresh my memory, but it may not refer to  COURT:  Q  A 5182  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 Hawaaw in there.  This will be Kliiyem lax haa.  This  2 one is Kliiyem lax haa, and then there's one further  3 one -- I'm sorry, that is Wii'muglusxw, but in the  4 affidavit -- I mean, Kliiyem lax haa, but it may refer  5 to Wii'muglusxw in the affidavit.  6 THE COURT:  As well as —  7 THE WITNESS:   As well as Kliiyem lax haa.  8 THE COURT:  And Hawaaw, H-a-w-a-a-w?  9 THE WITNESS:   I'm sorry, there's something wrong here.  10 MR. GOLDIE: Are you looking at the right map?  11 THE WITNESS:   No, that's not the right one.  What map is that?  12 MR. RUSH:  9A is the one that's —  13 MR. GOLDIE: Just put a piece of white paper under it.  14 THE COURT:  9A is — well, is this 9A on top?  15 MR. RUSH:  It's the one on the bottom.  16 THE WITNESS:   I'm sorry, here it is.  Wii'muglusxw here.  17 THE COURT:  Yes.  18 THE WITNESS:   I was looking straight up.  This is the territory  19 of Wii'muglusxw that I referred to.  This is the one  20 that —  21 THE COURT:  Hawaaw.  22 THE WITNESS:   Hawaaw, and this is Kliiyem lax haa, and there's  23 an area in here that Djogaslee is connected with, but  24 that's not mentioned, I believe, in the affidavit.  25 And then this is the other Kliiyem lax haa territory,  26 but this -- this territory of Wii'muglusxw is also  27 part of the territories of Kliiyem lax haa.  28 MR. GOLDIE:  2 9 Q   As between the map and the affidavits, which should we  30 go by?  31 A   Pardon?  32 Q   As between the map and the affidavits, if there is a  33 discrepancy, which should we go by?  34 A  Well, I don't think there'd be a discrepancy.  There  35 may be a reference to the person in the affidavit if  36 there is that relationship.  For example, I think that  37 Gaxsbgabaxs in that area will refer -- where she is  38 responsible for the territory of Wiis Dis, will refer  39 to the hereditary chief Wiis Dis, W-i-i-s space D-i-s,  40 and Gaxsbgabaxs is a little more complicated than  41 that.  42 MR. RUSH:  That's 7.  Gaxsbgabaxs is 7.  43 THE WITNESS:   Number 7.  It's not a discrepancy.  44 MR. GOLDIE:  45 Q   Well, shall we say difference?  46 A  Well, wherever there's that -- as far as I can  47 remember, wherever there is that kind of a 8183  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 relationship, it's often pointed out in the affidavit.  2 Q   Yes.  Now, am I right in my understanding that at the  3 time you were examined in 1986 you did not know where  4 the territory -- had not identified the territory of  5 Jimmy Angus?  We talked of him the other day.  6 A  Well, are you referring to a particular map?  7 Q   Well, I'm referring to the situation as it was in  8 August of 1986, and if you'd look at page 33 of your  9 evidence you've stated at line 27 that:  10  11 "    We originally filed 48 plaintiffs, and that  12 we will try to stay with that number as the  13 number of plaintiffs.  The number of houses  14 could be in the neighbourhood of -- the  15 number that will be added and represented  16 within those 48 will be close to a hundred.  17 Q   Do each of them have separate territories?  18 A   Not necessarily.  19 Q   But most of them?  20 A  A good number of them, yes.  But they were  21 represented in the original action.  22 Q   Well, I hear you say that, but the names of  23 those houses did not appear in the  24 pleadings; isn't that right?  Of the houses  25 which you tell me may include another 52,  26 there may be another 52 houses besides the  27 48 that are named, approximately?  28 A   Yes.  2 9 Q   And you say some don't have lands but others  30 do claim identifiable lands; is that  31 correct?  32 A   Yes.  33 Q   Now, for instance, there's a house known as  34 Eelast; is there not?  E-e-1-a-s-t.  35 A   Eelast.  36 Q   All right.  And the hereditary chief of that  37 is Jimmy Angus.  38 A   That's correct.  39 Q   Is he under a disability?  40 A   No, he's not.  41 Q   Does he -- does that house claim territory?  42 A   Yes.  43 Q   But it is not identified in the proceedings?  44 A  We informed Mr. Plant that there would be  45 other changes coming, and that is what I'm  46 working on.  47 Q   But, Mr. Sterritt, I questioned you -- that 8184  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 is not identified in the pleadings to date?  2 A   Not at this point."  3  4 Now, am I not correct, Mr. Sterritt, that it was  5 your evidence that at that time that the territory has  6 not been identified and that you were working on it at  7 the time?  8 A   Yes, that's what I said there.  9 Q   Yes.  So that at the time you were looking -- you were  10 seeking to identify Mr. Jimmy Angus' territory?  11 A  Well, Wii Elaast.  I wasn't seeking to identify it.  12 It was a matter of defining the boundaries of it.  It  13 wasn't a matter of finding territory.  14 Q   Yes.  15 A  Well, that's —  16 Q   You knew a general area, but you didn't know what the  17 boundaries were?  18 A   I didn't have the details of that.  I had an  19 understanding that Wii Elaast was -- was connected to  20 a territory near Kuldo and also that there was a  21 fishing area along the west side of the Skeena, but I  22 was not -- I did not have the boundaries of that clear  23 at that time.  24 Q   Uh-huh.  And you told us yesterday why Mr. Angus  25 wanted to be separately represented other than by  26 Martha Brown.  Mr. Sterritt, Percy Wilson is Amagyet,  27 A-m-a-g-y-e-t?  28 A   Yes.  29 MR. GOLDIE:   On Exhibit 5, could you confirm for me that it —  30 his territory shown on that map borders Martha Brown  31 on the east, Gitludahl on the north and Ma'uus on the  32 south and Kitwancool on the west?  33 THE COURT:  I'm sorry, could you give me those again, please?  34 Borders Martha Brown --  35 MR. GOLDIE:  36 Q   Martha Brown on the east, Gitludahl on the north, and  37 Ma'uus on the south, and Kitwancool on the west.  38 Can you confirm that, if you wish to, from Exhibit  39 5?  No, Exhibit 5 is the one, Mr. Sterritt, to your  40 right.  41 A   The -- yes, that's on the west side of the Kispiox.  42 It's the area of Kliiyem lax haa and -- Amagyet and  43 Kliiyem lax haa.  44 Q   Well, excuse me, I just wanted you to confirm for me  45 that the neighbours were the ones that I gave you,  46 namely, Kitwancool on the west, Martha Brown on the  47 east, Gitludahl on the north and Ma'uus on the south; 8185  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 is that right, as shown on Exhibit 5?  2 A   That's how it appears on that map, yes.  3 Q   All right.  Thank you.  And Mr. Wilson is a member of  4 the wolf clan?  5 A   Yes, he is.  6 Q   But he's not spoken for by Martha Brown is he?  7 A  At what time?  8 Q   Any time in these proceedings I'm talking about, of  9 course.  10 A  At that time we weren't clear about the territory of  11 Amagyet.  I shouldn't say at that time.  We had  12 identified that Amagyet was in that area.  I  13 subsequently learned that Amagyet is -- had been in  14 that territory along with Kliiyem lax haa and that  15 Amagyet, in fact, was south of there along Xsu Wii  16 Masxw, that's S-x-u space W-i-1 --  17 THE COURT:  I'm sorry, X-s-u space?  18 THE WITNESS:   W-i-1 space M-a-s-x-w, and that's Date Creek,  19 D-a-t-e, and that -- well, the members of the family  20 of Amagyet had been in that territory along with the  21 family of Kliiyem lax haa, but as I proceeded along  22 and got more information, it was clear that the  23 territory belongs to the house of Kliiyem lax haa.  24 MR. GOLDIE:  25 Q   Uh-huh.  And not Amagyet?  26 A   That's right.  27 Q   In Exhibit 102 you linked Amagyet with Luus; was that  28 correct?  29 A   Yes.  Amagyet and Wii Elaast and Luus.  Luus is  30 L-u-u-s, Wii Elaast is W-i-i space E-e-1-a-a-s-t, I  31 think is how it appeared later, and Amagyet,  32 A-m-a-g-y-e-t, I believe.  33 THE COURT:  Is the territory shown on Exhibit 5 as belonging to  34 Amagyet the same territory shown on 9 A as belonging  35 to Kliiyem lax haa?  36 THE WITNESS:   Yes.  Yes.  And what wasn't — what didn't become  37 clear until later was -- or is the origin of those in  38 terms of -- of those people in terms of Kuldo as  39 opposed to Kispiox.  And Luus is from Kuldo.  There  40 appeared to be a relationship between Luus and  41 Amagyet.  The person who held the name Wii Elaast  42 before Jimmy Angus was from Kuldo and that was Steve  43 Morrison, and that is the reason why Amagyet was put  44 beside Luus at the time.  But in subsequent  45 discussions we learned that Wii Elaast and Amagyet --  46 well, we learned that there was a house of Amagyet  47 from Kispiox and Percy Wilson is deceased and Jimmy 8186  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 Angus, Wii Elaast, is -- has a relationship with the  2 house of Amagyet and he is speaking on behalf of  3 Amagyet and the -- that's why Wii Elaast appears along  4 Date Creek along with Amagyet.  5 Q   Yes.  The question I put to you was that in Exhibit  6 102 you linked Amagyet as a sub-chief of Luus, but  7 that's not correct, if I follow what your explanation  8 was?  9 A  Well, I can't go back.  I don't know what the original  10 relationships were, but at that time it was not -- or  11 with subsequent information it was not correct, yes.  12 THE COURT:  When you say put together, do you mean on this code?  13 MR. GOLDIE:  That's on the code.  It's number one on the code,  14 my lord.  15 THE COURT:  Oh, yes.  Thank you.  16 MR. GOLDIE:  17 Q   And it was -- it was your judgment which assigned a  18 territory to Amagyet on Exhibit 5 which subsequently,  19 that is to say in exhibit or map 9A, is shown as  20 belonging to Kliiyem lax haa?  21 A   No, it's not -- it's not just my judgment.  As I  22 mentioned earlier, in this particular discussion the  23 family of Amagyet had been in the area of that  24 territory and other persons had referred to that.  I  25 believe that the work of Chris Harris on his map  26 indicated Amagyet in that area and -- but with further  27 discussions the territory was identified as being  28 Kliiyem lax haa's and that the family of Amagyet,  29 being wolf along with Kliiyem lax haa, had been in  30 that area and -- through some particular arrangement  31 perhaps with Kliiyem lax haa, but I'm not aware of  32 that, but they were in that area.  33 MR. GOLDIE:   But it was your knowledge of Amagyet's people's  34 presence in that territory which decided you to place  35 Amagyet as the owner of that territory in Exhibit 5,  36 wasn't that right; namely, in May of 1987, it was your  37 belief that Amagyet owned that territory?  38 MR. RUSH:  Which question are you asking?  There are two  39 questions there.  40 MR. GOLDIE:  Well, let's take the last one and forget about the  41 first.  42 THE COURT:  Do you want the question again, Mr. Sterritt?  43 THE WITNESS:   Yes.  Yes.  44 THE COURT:  Please —  45 MR. GOLDIE:  46 Q   Well, I'll combine them two into one question then.  47 In May of 1987, namely, the date of Exhibit 5, it 8187  N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 was your knowledge that the people of Amagyet had been  2 on the territory in question, which decided you to  3 show on Exhibit 5 that the territory belongs to  4 Amagyet; is that a fair proposition?  5 A   No.  No.  It was -- that map -- I was aware by that  6 time that a lot of work had to be done on the internal  7 boundaries and -- which was subsequently done, and  8 through the process following that a lot of work was  9 done with each hereditary chief and we sorted out  10 these relationships that are fairly complex and came  11 up with -- with the hereditary chiefs, the plaintiffs'  12 affidavits, and their representatives, which speak to  13 9A.  14 Q   Yes.  Let us go back to May of 1987 and Exhibit 5.  15 Amagyet is said to own that territory; you agree with  16 that?  17 A   Yes.  That appears on that map.  18 Q   And you believed that to be so at that time, did you  19 not?  20 A   I -- at that point it -- while Amagyet might have been  21 identified as a separate house, it wasn't clear what  22 the relationship between Kliiyem lax haa and Amagyet  23 was, and I think that by that time it was pretty  24 clear -- or not pretty clear, but apparent that there  25 could have been a relationship, and that Kliiyem lax  26 haa was the leading chief on that territory.  27 Q   But that was later?  28 A   No, not necessarily.  29 Q   Well, why put the name Amagyet on Exhibit 5?  30 A  Well, on the same basis that Wii'muglusxw might appear  31 on another one.  32 Q   I'm not talking about other people, I'm talking about  33 Amagyet?  34 A   That's what I'm saying.  35 Q   Now, tell me why you placed the name Amagyet on that  36 territory on May 11th, 1987, unless you believed at  37 the time that Amagyet was the owner of that property?  38 A  Well, that's -- that's a possibility, but I don't  39 recall exactly at the time.  40 Q   All right.  At the time, of course, the statement of  41 claim alleged that Amagyet was spoken for by Wii  42 Elaast?  43 A  At what point?  44 Q   In May of 1987.  45 A   Yes.  46 Q   Not Kliiyem lax haa?  47 A   Yes. N. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 Q   Did you really have any idea who owned that property  2 at that time, any clear idea?  3 A  At which time?  4 Q   In May of 1987 when Exhibit 5 was tendered to the  5 court?  6 A   I think that -- I think that that map at that time  7 was -- reflected information that had been on previous  8 maps and that it was used, but that there was  9 information that that territory was Kliiyem lax haa's,  10 and on May of '87 I think that I had discussions with  11 Martha Brown, either right in that area where she  12 identified that it was her territory, and that  13 Djogaslee was also in that area.  So at that time I  14 was -- which side of May there, I mean, it was right  15 in that period.  And there were discussions with  16 Martha about that.  I'm pretty certain of that.  17 Q   That is to say, May of 1987?  18 A  Well, as I say, which side of May, but I know right in  19 that area it was -- whether it was before or just  20 after, I was having -- I was talking to Martha and she  21 was advising me, so I think that -- I think I did know  22 at that time.  23 MR. GOLDIE:   Well, in Exhibit 721, which is a production of  24 notes that you had with deceased chiefs --  25 THE COURT:  I think, Mr. Goldie, if you're starting on something  26 new like that, we'll take the afternoon adjournment  27 first, please.  28 THE REGISTRAR: Order in court.  This court stands adjourned for  29 a brief recess.  30  31 (PROCEEDINGS ADJOURNED AT 3:00)  32  33 I hereby certify the foregoing to  34 be a true and accurate transcript  35 of the proceedings herein to the  36 best of my skill and ability.  37  38  39 Tanita S. French  40 Official Reporter  41  42  43  44  45  4 6 (PROCEEDINGS RECONVENED PURSUANT TO THE AFTERNOON BREAK)  47 5189  N. Sterritt (For Plaintiffs)  Cross-exam by Mr. Goldie  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE REGISTRAR:  THE COURT:  Mr.  Order in court.  Goldie.  CROSS-EXAMINATION CONTINUED BY MR. GOLDIE:  Q   Mr. Sterritt, I understood you to tell his lordship  that it was right in and around the time of Exhibit 5  that you had discussions with Martha Brown which  assisted you in resolving the question of whose  territory this should be?  A   Yes, and I can't remember which side of that date.  But I'm also trying to recall whether or not Albert  Tait, when I had -- was having my final discussions  with him before he passed away, whether he referred to  that, but I am not certain of that.  Q   Well, in the material which was provided and marked as  Exhibit 721 there appear to be interviews or notes of  interviews with Martha Brown on the 6th of September,  and that wouldn't be the time, would it?  A   Of what year?  Q   '86.  A   I don't know.  I'd have to look at those notes.  MR. GOLDIE:  Perhaps you'd be good enough to do so.  Tab 5.  THE COURT:  You referred the witness to?  MR. GOLDIE:  Tab 5, my lord.  THE COURT:  Yes, but to the date of September?  MR. GOLDIE:  September the 6th, '86, and then there is one July  the 8th, 1987.  THE COURT:  Yes, that's what I've written.  THE WITNESS:  July the 8th of '87 there is a reference there  that Dogogeis owns Naa Sgan Timiiyitit.  That's --  D-o-g-o-g-e-i-s is as it's spelled, and Naa Sgan  Timiiyitit is N-a-a space S-g-a-n space  T-i-m-i-i-y-i-t-i-t.  And then also refers to Xsii Sip  Saatxwit.  That's X-s-i-i space --  THE COURT:  I'm sorry.  THE WITNESS:  X-s-i-i.  THE COURT:  X-s or S-x?  THE WITNESS:  X-s-i-i.  THE COURT:  Yes.  THE WITNESS:  Space S-i-p space S-a-a-t-x-w-i-t, and then "(lake  near Steelhead camp)."  Underneath it reads, "Boundary  is big hill near Steelhead camp," and underneath is  written, "Dogogeiss," that's D-o-g-o-g-e-i-s-s, and  under that is, "Mauss," M-a-u-s-s.  And then let's  see.  Now, there is also a reference to a mountain.  MR. GOLDIE:  Q   Excuse me, are these references which you have just 5190  N. Sterritt (For Plaintiffs)  Cross-exam by Mr. Goldie  1  2  3  A  4  5  THE COURT:  6  MR. GOLDIE  7  Q  8  A  9  Q  10  A  11  12  Q  13  14  A  15  Q  16  17  18  A  19  Q  20  21  A  22  23  Q  24  25  A  26  Q  27  28  29  A  30  31  32  33  Q  34  35  36  37  38  A   '  39  Q  40  41  42  43  A  44  1  45  46  47  MR. GOLDIE  read references to the area that is identified as  belonging to Amagyet in the Exhibit 5?  Those are references to the territory belonging to  Kliiyem lax haa.  There is another note.  But which one?  Yes.  Pardon?  Oh.  Say which one.  The one on the west side of the Kispiox at 17 Mile  Bridge.  That's not the one that is marked on Exhibit 5 as  belonging to Amagyet?  It's the same territory.  So what you're telling us is that this note indicates  to you that Kliiyem lax haa owns the territory of  Amagyet as it was depicted on the map of Exhibit 5?  Yes, Kliiyem lax haa owns that territory, yes.  And would you explain again the relationship between  Dogogeiss and Kliiyem lax haa?  Dogogeiss, that's D-o-g-o-g-e-i-s-s, is in the House  of Kliiyem lax haa.  What is -- do you know the English name of the holder  of that name?  I -- as I recall, it's Rosie Pierre.  And is Rosie Pierre the -- where does she sit in the  feast in relation to Kliiyem lax haa?  Is she a high  name in the house?  She's -- I don't recall.  She's four or five down, I  think opposite my Aunt Gertie, and my Aunt Gertie is  even further than that down along the table where she  sits from Martha Brown.  I ask you those questions, Mr. Sterritt, just so that  I don't misunderstand your evidence.  The -- it seems  to me that what you have just finished reading is  identified by Martha Brown as being owned by Rosie  Pierre?  Well, within the House of Kliiyem lax haa.  What precedes the territory at 17 Mile Creek is a line  that reads, if I understand it correctly, "Kliiyem lax  haa owns," and then there is a reference.  What  territory is that?  That's Dam Gwihl Aaltxwit, that's D-a-m space  G-w-i-h-1 space A-a-1-t-x-w-i-t, and that is -- that's  a lake that will appear on the map as -- I believe  it's Sammon Lake, S-a-m-m-o-n.  :  Thank you. 8191  N. Sterritt (For Plaintiffs)  Cross-exam by Mr. Goldie  1 THE COURT:  And where is it?  2 THE WITNESS:  It's just north of Murder Creek on the east side  3 of the Kispiox River.  4 MR. GOLDIE:  5 Q   It's not in the territory that is attributed to  6 Amagyet in the Exhibit 5?  7 A   No.  8 Q   All right.  Is there anything else there that bears on  9 the territory that is said to be Amagyet's?  10 A  Well, only that there's a set of -- yes, there is  11 going back to 1983.  It's a reference by Martha, but  12 it -- it's only a reference, and that's on the first  13 entry in this book on the --  14 Q   Under tab 5?  15 A   Under tab 5.  16 Q   Yes.  17 A   On the second page it refers to Nii laa habasxw,  18 that's N-i-i space 1-a-a space h-a-b-a-s-x-w.  It  19 says, "a mountain behind Ted Campbells along McCully  20 Creek."  Now, there's no reference there as to  21 ownership, but that is a mountain on the -- which is a  22 boundary between Kitwancool, Kliiyem lax haa and other  23 chiefs, but I have no reference as to -- indicating  24 ownership there.  But she has mentioned that to me  25 there.  26 Q   Yes.  Ted Campbell is what, a white farmer?  27 A   Yes.  28 Q   Well —  29 A   The only other -- I had mentioned that the information  30 had not necessarily ended up on the map, and there is  31 some notes in here that are not mine right in this  32 same section of a trip that was taken by Martha and --  33 and Marvin George and Susan Marsden, which also refers  34 to the Dogogeiss territory on the other side and the  35 various places along there.  36 Q   Can you identify the writer?  37 A   I believe that's Susan Marsden.  38 Q   All right.  Thank you.  And just point out to me,  39 please, the reference that you have in mind?  40 A   On the second page.  41 Q   Yes.  42 A   Referring to Dogogeiss' area there.  43 Q   Boundary Mauus and Dogo -- D-o-g-o-g-e-s; is that  44 right?  45 A   I don't see where you see that.  46 Q   Well, the second entry.  47 A   Oh, okay.  Yes. 8192  N. Sterritt (For Plaintiffs)  Cross-exam by Mr. Goldie  1 Q   That's the same person that you have spelled with  2 g-e-i-s?  3 A   Yes.  And under it there's the note Dogogeiss, two  4 dots, Hawaaw, that's H-a-w-a-a-w, in Kliiyem lax haa's  5 House.  6 Q   Yes.  All right.  Anything else?  7 A   It makes the same reference basically going down for  8 one, two, three -- well, the references to the Kliiyem  9 lax haa territories continue on down there.  10 Q   Or Dogogeiss territory?  11 A  And going on to the third page, there is a point about  12 the boundary being on this side of -- well, what's  13 written there is Wilna'masxw, that's  14 W-i-1-n-a-apostrophe-m-a-s-x-w, Mountain with red  15 spot, which is the -- the mountain at the head of Xsu  16 wii masxw, X-s-u space w-i-1 space m-a-s-x-w.  Date  17 Creek is at the lower end of that, D-a-t-e.  18 MR. GOLDIE:  Well, Mr. Sterritt, as far as the attribution of  19 the territory that is shown as Amagyet's in Exhibit 5  20 is concerned, you received information in July that  21 caused you to change your mind?  22 MR. RUSH:  May I just interject for a moment, my lord.  I had  23 been under the impression that what we were talking  24 about was a territory that in map 9A was identified as  25 the owner, which was identified as Kliiyem lax haa,  26 and that that same area was identified on map A, that  27 is -- excuse me -- map 8, that is to say, Exhibit 5,  28 was there named as Amagyet.  Well, if we're talking  29 about the same territory, in both 9A and 8 it's  30 identified as Kliiyem lax haa, so I'm -- unless my  31 friend is referring to the territory between Mauus,  32 which is Wii elaast, and Amagyet on both 9A and map 8,  33 and it wasn't clear to me.  I thought we were  34 referring to a territory that had previously been  35 marked as Amagyet on 8, but it doesn't appear to be so  36 on my recollection, and I think that could be  37 clarified by looking at 9A.  38 THE WITNESS:  This is 9A.  Map 8.  39 THE COURT:  8 is 5.  40 MR. RUSH:  It's over here.  41 THE WITNESS:  Put it on this one.  And what's the date of this  42 one?  43 MR. RUSH:  The red one is map 8, which is May the 20th, 1987,  44 and the black one is 9A.  45 THE COURT:  But the original 5 is this one, isn't it?  46 MR. GOLDIE:  Yes, it is.  47 THE COURT:  This one here. 8193  N. Sterritt (For Plaintiffs)  Cross-exam by Mr. Goldie  1 MR. GOLDIE:  2 Q   Well, that's -- I was directing the witness, my lord,  3 to Exhibit 5 and to map 9A.  4 A   But this is the one that was dated May --  5 Q   Well, I don't know about the map overlays, Mr.  6 Sterritt, except 9A, but the one that I directed your  7 attention to and that you looked at was Exhibit 5.  8 A  And what's the date of this one?  9 THE COURT:  That's the one that was filed in court on about May  10 20th, as I recall.  11 MR. GOLDIE:  Yes.  12 MR. RUSH:  That's right.  13 THE WITNESS:  Then it seems to me that this was adopted for the  14 purpose of this.  I'm speculating, I guess, but -- and  15 that's what that was.  And this is the work that's  16 been done and appears here.  17 MR. GOLDIE:  Well —  18 THE COURT:  Well, we didn't see the overlay in Smithers, I don't  19 think.  20 THE WITNESS:  No.  21 MR. GOLDIE:  22 Q   We were told Exhibit 5 was the final map, Mr.  23 Sterritt, and that's what I've been working with.  24 A  Well —  25 THE COURT:  Can you assist us by indicating which of those two  26 copies of what are supposed to be the same thing was  27 made first, 5A that was -- or the 5 rather that was  28 filed in court and the overlay?  29 MR. RUSH:  My lord, I can advise you of that.  The overlay came  30 well after Exhibit 5 for identification.  31 THE COURT:  Well then, it appears it's as simple as this, that  32 somebody has corrected the overlay.  33 MR. RUSH:  I don't know.  I don't know what the explanation for  34 that is.  35 THE COURT:  Mr. Goldie.  36 MR. GOLDIE:  37 Q   Well, the -- the question that I put was related to  38 Exhibit 5, and it was that with respect to the  39 attribution of territory to Amagyet as shown on  40 Exhibit 5 it would appear that on July the 8th you  41 received information from Martha Brown which led you  42 to change your mind, and I was going to invite you to  43 either agree with me or indicate why you didn't agree  44 with that.  45 A  Well, the reason that I was having trouble was because  46 of the map because I spent the -- map number 5 --  47 because I spent the winter from 1986, in December, to 8194  N. Sterritt (For Plaintiffs)  Cross-exam by Mr. Goldie  1  2  3  4  5  6  7  8  9  10  Q  11  12  13  14  15  16  17  A  18  Q  19  20  A  21  22  23  24  25  26  MR.  GOLDIE  27  28  THE  COURT:  29  MR.  GOLDIE  30  THE  COURT:  31  MR.  GOLDIE  32  Q  33  34  A  35  Q  36  A  37  38  Q  39  40  41  A  42  THE  COURT:  43  MR.  GOLDIE  44  THE  COURT:  45  MR.  GOLDIE  46  THE  COURT:  47  MR.  GOLDIE  about May reviewing the boundaries, the external  territories, and the Kliiyem lax haa territory at, the  English name, McCully Creek was one of the ones that I  reviewed and had sorted out, and that's why I was  confused by the -- by that.  I -- as I recall, I  believe that I had -- I'd have to check, but I think I  got as far as that creek before Albert Tait died  and --  but I'm not sure.  I mean, I'm not positive  about that.  All right.  Well, if you wish to add anything to that  tomorrow, please feel free to do so.  One other  territory that I wish to draw your attention to at  this time is that of Yal, whose territory formed a  part of the -- was part of the external boundary at  the time of the statement of claim October 1984 map;  is that right?  I'm speaking of --  Yes.  Yes.  Perhaps you might point to his lordship the  territory we're speaking of.  The Nass River -- excuse me -- flows along the  left-hand side of the -- of the base map right here.  The Kiteen River, K-i-t-e-e-n, flows out to the Nass  River in this direction, and the area that we're  speaking of is to the west of upper Kiteen River right  in here.  It's labelled 3.G.31 on the overlay.  :  On Exhibit 102, my lord, that is the coding for  that territory.  What is the number of the code?  :  3.G.31.  Oh, I'm sorry.  Yes.  And that tells us that the head chief or the first  named chief is Antgulilbix, and that's Mary Johnson?  Not of that —  This is a different Yal, is it?  Yes, the Yal in the House of Antgulilbix is a Gawa,  one of her -- one of her nephews, I believe.  Well, the coding, as you pointed out, is 3.G.31, and  that refers to Antgulibex, and let's just take this  one by one.  Antgulilbix is Mary Johnson?  Yes.  I'm sorry, I'm not following this.  :  Does your lordship --  Don't you have a different code?  :  No.  Does your lordship find 31 under "Chiefs"?  Oh, yes.  :  All right.  That -- the 3.G. simply identifies the 8195  N. Sterritt (For Plaintiffs)  Cross-exam by Mr. Goldie  1 clan and the village, but the 31 identifies the name  2 of the chief and the sub-chiefs or associated chiefs.  3 THE COURT:  All right.  Yes.  4 MR. GOLDIE:  5 Q   And your lordship will see that Antgulibex is the  6 first name, and I asked Mr. Sterritt to agree that was  7 Mary Johnson.  The second one is Tsii Baasaa, which is  8 Stanley Wilson, Mr. Sterritt?  9 A   Yes.  10 Q   And Yal, who is George Turner, or is that a different  11 Yal altogether?  12 A   In this case the G. refers to Kitsegukla, and Yal --  13 it appears to me that Antgulibex and Tsii Baasaa --  14 well, I can't see them anywhere else so -- so    15 MR. GOLDIE:  Isn't it a case of —  16 MR. RUSH:  Well, is there any further answer?  17 THE WITNESS:  Yes.  Antgulilbix and Tsibasaa and Yal in Kispiox  18 are different than the Yal from Kitwanga.  19 MR. GOLDIE:  20 Q   Yes, that's what I was trying to suggest to you.  21 A   Right.  22 Q   That the mistake in Exhibit 102 is firstly to  23 attribute Antgulibex, Tsii Baasaa and Yal to  24 Kitsegukla.  25 A  Well, Antgulilbix -- there is an Antgulilbix, there  26 may even be a Tsibasaa in Kitsegukla.  27 Q   All right.  28 A   There is an Antgulilbix, a Tsibasaa and a Yal in  29 Kispiox.  30 Q   All right.  Well then, in that case the attribution to  31 the village is correct, Kitsegukla, but there is no  32 Antgulibex of Kispiox on Exhibit 102; is that right?  33 A   Okay.  As I can --  34 MR. GOLDIE:  Let me suggest this to you —  35 MR. RUSH:  There should be an answer to that question.  36 THE WITNESS:  I've got an answer to that.  37 MR. GOLDIE:  38 Q   Yes, I know what the answer is.  If you look over at  39 Kispiox, you'll find 3.F.31, won't you?  40 A   Yes, 3.F.31 twice.  41 Q   Right.  So —  42 A   Right.  43 Q   So there is a 3.G.31, and there is a 3.F.31, and there  44 is only one 31; is that right?  45 A   Don't confuse us.  4 6 Q   Well, I didn't draw the map.  47 A  What do you mean by there is only one 31? 5196  N. Sterritt (For Plaintiffs)  Cross-exam by Mr. Goldie  1  Q  2  3  A  4  5  Q  6  A  7  Q  8  9  A  10  Q  11  12  13  A  14  Q  15  A  16  17  18  19  Q  20  A  21  22  23  24  25  THE COURT  26  27  MR. RUSH:  28  MR. GOLDI  29  Q  30  31  32  A  33  Q  34  A  35  Q  36  A  37  38  39  40  41  Q  42  43  44  45  A  46  47  Q  Well, look down the list of numbers under "Chiefs" and  you will find one 31?  Well, you're just repeating what you said earlier, I  guess.  Yes, that's right.  Okay.  Okay.  All right.  Now, the 3.G.31 is the one I am directing  your attention to.  Yes.  And that's supposed to be Kitsegukla, but I believe  you told us that that's -- that the village that  should be shown there would be Kitwanga?  George Turner lives in Kitwanga.  All right.  I was referring to where he lived.  There are members  in their house, Antgulilbix and I believe Tsibasaa,  and they -- by blood they are very closely related to  Gwis Gyen, and -- G-w-i-s space G-y-e-n.  That's Stanley Williams?  Yeah.  And they -- there was a migration from -- or to  Kitwancool at one point.  My tendency or -- I believe  that there -- I think that the Kitsegukla designation  is right, but I'm -- I'd have to refresh my memory on  that.  :  That designation is on which map?  What number is  that?  Is that 4?  Map 4 .  Everything you say might be reconciled if the Yal that  is referred to instead of being 3.G.31 would be 29?  If you look under the --  No, I don't think so.  No.  That's a third Yal we have; is that right?  No, that would be the same person.  All right.  But, as we mentioned to you a number of times, this  was a draft map, and in terms of -- it was an effort  to, at request of counsel, to provide a representation  and also for -- to begin a review with the hereditary  chiefs but --  Well, it doesn't really matter for my purposes, Mr.  Sterritt, but I'm just suggesting to you that if  instead of 31 it was 29 it would fit with your  explanation.  Well, there is a separate House of Yal, and there is a  House of Gwis Gyen.  And 29 indicates that Yal and Gwis Gyen are sub-chiefs 5197  N. Sterritt (For Plaintiffs)  Cross-exam by Mr. Goldie  1  2  A  3  4  Q  5  A  6  Q  7  8  9  A  10  THE COURT  11  12  MR. GOLDI  13  Q  14  15  16  17  18  19  20  A  21  Q  22  23  24  A  25  Q  26  A  27  Q  28  29  A  30  Q  31  32  33  A  34  Q  35  36  37  A  38  Q  39  40  41  A  42  Q  43  44  A  45  Q  46  47  of the House of Hax Bagwootkw?  I don't know if it's suggesting that they are sub-  chiefs .  Or associated with?  Associated.  But they are chiefs associated with.  All right.  And isn't that what we're talking about,  that -- the Yal that is associated with Gwis Gyen and  Hax Bagwootkw?  In that case, but it became clear later that --  :  I'm sorry, the reporter's going to need a spelling  for that,  r:  All right.  It's H-a-x capital B-a-g-w-o-o-t-k-w.  I'm glad your lordship reminded me.  I'd hate to have  that reported phonetically.  As I say, it's not a matter of concern to me.  I  am just suggesting to you that 29 would have been the  appropriate identification for this particular Yal,  Mr. George Turner?  Yes.  In terms of the relationship, yes.  Yes.  All right.  Now, that territory was included in  the Gitksan claim in the -- in the map attached to the  original statement of claim in October 1984?  That was an -- an external boundaries map?  Yes.  Yes , it was.  And this -- this claim is on the external boundary,  isn't it?  Yes.  And it was included in the -- and it's included in  Exhibit 102, the map of October 1985 that we've just  been looking at?  Yes.  And it was included in the statement of claim map  attached to the amended statement of claim of April  1985, which is your overlay map number 3?  Yes.  And it is included in the territory which is claimed  in the Carrier-Sekani overlay map of April 1986, which  is your overlay map number 5?  Yes, it is.  All right.  But in your overlay map number 6, which is  said to be dated March 9th, 1987, it disappears?  Yes, that's -- that's right.  Now, that date, March 9th, 1987, is something of a  misnomer, isn't it, Mr. Sterritt?  There was no map  completed as of that date; it was the map that was to 519?  N. Sterritt (For Plaintiffs)  Cross-exam by Mr. Goldie  1 accompany the summary of your opinion of that date?  2 Am I not correct in that?  3 A   Yes, there was to be a map to go with my summary,  4 right.  5 Q   But it was in fact never completed until some later  6 time?  7 A  At that time -- well, I wouldn't say it was a  8 misnomer.  At that time I had embarked on a review of  9 the external territories, and it was -- I'm not sure  10 at what point I completed that review, but I spent a  11 good part of the winter doing that, and I think -- I  12 think that that -- that a good part of the boundary --  13 that I completed a good part of the boundary by then.  14 Q   By then being?  15 A  Well, by March the 9th.  That the statement of claim  16 or -- pardon me -- the description that was attached  17 to my -- I would have to check it, but the description  18 that was attached to my report, I would have to see  19 which changes were made by then as to which -- how far  20 I had gotten on that.  I would have to check that.  21 Q   Well, what is clear is that that map was never  22 produced to the defendants until the overlay map that  23 you introduced here; isn't that correct?  24 A   I think that's right.  25 Q   Yes.  And as late as March the 27th, the last -- March  26 the 25th, the second to last day of your examination  27 for discovery, it was referred to by Mr. Grant at page  28 427.  29  30 " is described in Marvin George's report  31 which you received yesterday, he is working on  32 such a map, he is finalizing the boundaries and  33 as soon as such a map is available we will  34 present it."  35  36 Now, that map was produced in court for the first time  37 with your map overlay number 6?  38 THE COURT:  I thought it was number 8.  39 MR. GOLDIE:  No, 8 -- overlay map 8, my lord, according to my  40 note, is Exhibit 5.  41 THE COURT:  Oh.  Well, which one was to be attached to the  42 summary of opinion?  43 MR. GOLDIE:  There was no map attached to the summary.  44 THE COURT:  But I have a note that number 8 was to be attached,  45 and that's not right I don't think.  46 MR. GOLDIE:  Oh, well, I think the — it's map 6.  47 THE COURT:  Six. 8199  N. Sterritt (For Plaintiffs)  Cross-exam by Mr. Goldie  1 MR. GOLDIE:  Which reads, "Map of Metes and Bounds Description  2 of the Gitksan-Wet'suwet'en Territories in Appendix A  3 of Sterritt Summary of Opinion March 9th, 1987, not an  4 exhibit."  5 THE COURT:  That's number 6.  6 MR. GOLDIE:  That's number 6.  And I understand Mr. Sterritt to  7 have agreed with me that that map, which was seen for  8 the first time by the defendants as the overlay map  9 number 6, was certainly not attached to Mr. Sterritt's  10 summary, and as late as March 25th we were advised  11 that Mr. George was working on it.  12 THE COURT:  And that was produced in the evidence in chief of  13 the witness?  14 MR. GOLDIE:  15 Q   That is correct, my lord.  And it's on that basis that  16 I am suggesting that the date of March the 9th is  17 somewhat misleading.  18 A   If that map fits with the description that was  19 attached to my report, then -- I don't -- I can't  20 comment on the date, but then it matches what was in  21 my report, and I was reviewing the boundaries at that  22 time.  23 Q   But the map itself didn't exist on March the 25th, did  24 it?  25 A   I don't know whether it did or not.  26 Q   Well, you were present in an examination for discovery  27 when Mr. Grant stated that,  28  29 "...he is working on such a map, he is finalizing  30 the boundaries and as soon as such a map is  31 available we will present it"?  32  33 A  Well —  34 Q   That's the map of the metes and bounds of your report,  35 isn't it?  36 A  A map doesn't have to be completed for Marvin George  37 to -- to work on the metes and bounds, if I indicate  38 to him where the metes and bounds should be altered.  39 Q   I am not questioning that for a minute, Mr. Sterritt.  40 I am simply saying to you that we were advised in your  41 presence that that map wasn't finalized, which  42 purported to be the map of the metes and bounds.  43 A  Marvin George, I don't know what he might have had in  44 his possession but could have had any one of these  45 maps with a boundary on it and been in the process of  46 preparing a final map that would be the same as this  47 and not have it finished and have done a metes and 8200  N. Sterritt (For Plaintiffs)  Cross-exam by Mr. Goldie  1 bounds based on points that I would indicate to him  2 along where to change it.  3 Q   Is it your evidence that when Mr. Grant said to me,  4  5 "...he is working on such a map, he is finalizing  6 the boundaries and as soon as such a map is  7 available we will present it, "  8  9 is it your evidence that there was such a map in  10 existence at that time?  11 A   That comment is referring to a process that's going  12 on.  13 Q   My question is was there such a map in existence at  14 that time, namely March the 25th?  15 A   I can't say.  16 THE COURT:  What page?  17 MR. GOLDIE:  That's page 427, my lord, of volume 4 of Mr.  18 Sterritt's examination for discovery.  19 THE COURT:  I'm sorry, page?  20 MR. GOLDIE:  21 Q   427.  22 I'll come back to that later, but I want to have  23 your agreement, and I think I have it, that that map,  24 overlay map 6, which is -- excludes Yal's territory  25 from the Gitksan land claim.  Would you agree with  26 that?  27 A   It excludes, well, not all of Yal's territory --  2 8 Q   No.  29 A   -- but it excludes an area that is identified with  30 Yal, yes.  31 Q   Yes.  Right.  And that, of course, is certainly the  32 case with Exhibit 5 behind you there?  33 A   Yes.  34 MR. GOLDIE:  And the map overlay 9A?  35 MR. RUSH:  My lord, the discussion on page 427 is not in  36 relation to the map that subsequently was identified  37 as and dated March of 1987.  It appears that it  38 relates to the question of house boundaries, which  39 would mean an internal boundary map, and I take it  40 that the discussion there is in relation to the map  41 that was subsequently identified as Exhibit 5.  42 MR. GOLDIE:  Well, that certainly isn't my understanding, my  43 lord.  44 MR. RUSH:  Well, I think a reading of the question that you put  45 certainly indicates -- the question at 1897,  46 "1897  Q   Well, if we had a map in its final form  47 which depicted House boundaries I would 8201  N. Sterritt (For Plaintiffs)  Cross-exam by Mr. Goldie  1 be happy to work with that, but so far  2 as one has not been produced that is  3 the best we have to work with, Mr.  4 Sterritt,"  5  6 and then Mr. Grant's interjection.  7 MR. GOLDIE:  Well, I'll provide your lordship with the other  8 references, which are numerous, as to what was going  9 on with respect to the map.  Now --  10 THE COURT:  Is it convenient to adjourn, Mr. Goldie?  11 MR. GOLDIE:  Yes, my lord.  12 THE COURT:  All right.  There is still another ceremony tomorrow  13 morning that I wish to attend.  I'm not sure if it  14 starts at 9:15 or 9:30.  I may be delayed just a very  15 few minutes.  For convenience do you want to schedule  16 it to start at 10:15?  17 MR. RUSH:  If that's convenient to your lordship.  18 MR. GOLDIE:  Whatever suits your lordship.  19 THE COURT:  All right.  Thank you.  20 THE REGISTRAR:  Order in court.  This court stands adjourned  21 until 10:15, September 23rd.  22  2 3 (PROCEEDINGS ADJOURNED)  24  25 I hereby certify the foregoing to be  26 a true and accurate transcript of the  27 proceedings herein to the best of my  28 skill and ability.  29  30  31    32 Leanna Smith  33 Official Reporter  34 United Reporting Service Ltd.  35  36  37  38  39  40  41  42  43  44  45  46  47


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