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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1989-06-23] British Columbia. Supreme Court Jun 23, 1989

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 17963  Proceedings  1 VANCOUVER, B.C.  2 June 23, 198 9  3  4 THE REGISTRAR:  Order in court.  In the Supreme Court of British  5 Columbia, this 23rd day of June, 1989.  The matter of  6 Delgamuukw versus Her Majesty the Queen at bar, my  7 lord.  8 THE COURT:  All right.  Where are we, gentlemen, ladies and  9 gentlemen?  Mr. Rush.  10 MR. RUSH:  I will be happy to start to answer that question.  11 THE COURT:  Thank you.  12 MR. RUSH:  Originally yesterday or today was to have been set  13 aside to place before your lordship some outstanding  14 matters on the expert opinion evidence called by the  15 plaintiffs.  And that, I think, is still on our  16 agenda, but I understand yesterday some other  17 questions were raised about scheduling.  18 THE COURT:  Yes.  19 MR. RUSH:  And what I wanted to do was hopefully clarify some  20 questions of scheduling, and they are these.  The  21 plaintiffs are proposing that we not sit next week.  22 THE COURT:  Yes.  23 MR. RUSH:  And that next week, for our purposes, would be used  24 to assist in preparing for the following week which  25 would be the week of the 4th.  What we are proposing  26 to do on the week of the 4th is this, we are going to  27 call four witnesses.  One of these witnesses is Mr.  28 Skoda, Lou Skoda or someone from his office Canadian  29 Cartographies to deal with what we consider to be  30 outstanding technical matters of proof with relation  31 to the map atlas and the overlay series.  Our estimate  32 of time on that, my lord, is about a half a day,  33 possibly less.  34 Secondly, we feel that calling of a witness to  35 deal with the Wet'suwet'en genealogies necessary.  36 Previously we had expressed to the court that we could  37 see this evidence being called by way of an affidavit,  38 filing of an affidavit and subsequent  39 cross-examinations.  It is our view that it could be  40 done and expeditiously in the week of the 4th, and we  41 see this as again a half day or less witness.  We  42 propose calling the Dora Wilson-Kenni for that  43 purpose.  44 Thirdly, we will call a witness to prove certain  45 of the fishing sites which have as yet, in our view,  46 not been spoken to.  This witness would speak to the  47 names, places and ownership of sites in the middle 17964  Proceedings  1 Skeena.  Again, we see this witness as being a half  2 day or less.  3 MR. WILLMS:  Who is that witness, please?  4 MR. RUSH:  We cannot give you a name at the present time.  5 Fourthly, we intend to call an expert on one issue  6 which is an issue that has remained as a contentious  7 issue between my friend Mr. Willms and I on the  8 question of the dating of certain of the obsidian  9 flows at the Edziza obsidian site.  We have carried on  10 a lengthy and detailed correspondence with respect to  11 admissions regarding sourcing and dating of obsidian  12 of the Mount Edziza flows.  We have not completely  13 come to an agreement on this, although I can say that  14 four months of correspondence has brought us to a  15 substantial agreement.  There is an outstanding issue  16 and we intend to call someone.  17 There will be no surprise in this, it was evidence  18 that was referred to but objected to in our submission  19 in the evidence of Ms. Albright.  This refers to the  2 0 evidence and a document pertaining to a Ms.  21 Godfrey-Smith.  We intend to call that evidence.  It  22 will be very short, and I suspect again we are talking  23 of something in less than a quarter of a day.  So  24 those are the witnesses that we propose calling for  25 the week of July the 4th.  Our hope is that pending  26 schedules, which we have not yet confirmed, that these  27 could all be done in the first two days of that week.  28 And, if not, then we would propose that they be done  29 in accordance with the convenience of all parties,  30 including the witnesses here.  31 Now, in addition to that, my lord, we also propose  32 to make a submission to you with regard to amendments  33 of the Statement of Claim.  We wish to address these  34 amendments in that week and we would suggest, of  35 course, a convenient time after the calling of the  36 evidence, probably Wednesday.  37 THE COURT:  I'm sorry, that's —  38 MR. RUSH:  That might be a Thursday, sorry, it's a four-day  39 week.  Next we suggest calling or presenting an  40 application which has really been brought to your  41 attention on several occasions during the course of  42 the evidence called by the plaintiffs, the expert  43 evidence.  That is in respect of certain documents  44 which have been objected to and have been marked for  45 identification in proceedings.  We propose dealing  46 with those objections.  Our submission will be that  47 the objection designation that is attached to some of 17965  Proceedings  1 the documents be lifted and that we address the  2 objection and deal with those issues.  3 THE COURT:  Do you have a list of what documents will be  4 involved in that application?  5 MR. RUSH:  Not entirely the list of documents because, as your  6 lordship can appreciate, there is a wide range --  7 THE COURT:  Yes.  8 MR. RUSH:  -- of documents that have been objected to for one  9 reason or another.  But at least there is an issue  10 which has resulted in certain documents being marked  11 for identification which focuses on the purpose for  12 the tendering of the document.  What we would propose  13 doing is identifying, if we can, to isolate the  14 particular issues, advise our friends and address  15 those issues before the conclusion of the plaintiff's  16 case.  17 Now, our intention is to complete this by the end  18 of the week of July the 4th such that the defendant's  19 case can proceed on July the 10th subject to this,  20 that there are and will be certain matters still  21 outstanding.  I have been advised by Mr. Adams that  22 your lordship would not object to our deferring  23 certain of these issues to be dealt with during the  24 course of the defendant's case.  I can say that we are  25 still considering the calling of Dr. Rigsby.  This  26 would be one such issue that we would suggest  27 deferring to a point in time to be mutually agreed  28 upon after the commencement of the defendant's case.  29 Similarly, there is an affidavit that I referred  30 your lordship to at the commencement of Dr. Lane's  31 evidence, the affidavit of Mr. Morrell with regard to  32 certain fishing sites.  Whether or not there would be  33 a cross-examination required of Mr. Morrell, I don't  34 know.  But if such was required that, too, would be an  35 activity, if I can suggest this, which would be  36 deferred to the point in time after commencement of  37 the defendant's case.  And, of course, there is yet  38 outstanding the question of the cross-examination of  39 Mr. Turner who is Yal, Y-A-L, and his health is still  40 a very tenuous matter at this point in time.  And  41 that, too, would be a question of deferring as a  42 matter of evidence to a point in time after the  43 defendant's case has commenced.  44 Now, I think that there would also be certain  45 issues that are still a matter of -- if I can put it  46 this way, a matter of clean-up, outstanding requests  47 that have been made of certain of the experts.  These 17966  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  MR.  are clearly questions which can not be answered in the  time frame that remains to the beginning of July.  And  here I think the concern is that we make our best  efforts to begin the defendant's case at the beginning  of July.  What I am here referring to, my lord, are  such requests like those made of Dr. Lane.  I have not  talked to her since the conclusion of her evidence,  but I assume that some of those requests may take  longer than the time we have remaining.  And without  having canvassed fully all of the other similar types  of requests or outstanding matters of marking this and  that, that remains outstanding in the plaintiff's case  that some of that may have to be completed at a time  after July the 10th.  I think I have covered all those questions of  scheduling, my lord.  What remains from our  perspective would be to address some of the  outstanding matters which my friend Mr. Willms has  raised.  He has certain issues that he wishes to  raise, and I have certain issues that I wish to raise.  I think that subject to responses to what I have  indicated in terms of the scheduling of the remaining  portions of the plaintiff's case, I would propose that  having heard my friends that we move on to  consideration of those issues which my friend and I  consider to be outstanding.  I'm sure your friends would like to know, Mr. Rush,  when can they have some notice of the amendments you  seek?  My lord, that is probably not going to be something  that we can provide until the beginning of the week  before.  These are matters for which instructions have  to be obtained.  These are not matters that we can do  quickly.  We feel that this can be done at the  beginning of the week of the 4th.  Well, I am troubled by the anticipation that I have  that the defendants will say that they want some  notice before they have to respond to the application.  Well, I had better wait to hear what they say.  Mr.  Macaulay or Mr. Willms, who wants to go first?  Mr.  Willms.  WILLMS:  My lord, just dealing with the witnesses, I take it  Mr. Skoda is going to give some opinion evidence.  I  would like to know what it is, what evidence my  friends are seeking.  Technical is a pretty broad  brush.  I am sure my friend knows what Mr. Skoda is  going to say, and if he could let us know we would be  THE COURT  MR. RUSH  THE COURT 17967  Proceedings  1 grateful.  2 THE COURT:  You don't have any notice?  3 MR. WILLMS:  We have never received an opinion from Mr. Skoda.  4 I don't know what evidence he is going to give, what  5 technical evidence.  On the genealogies, this is the  6 first time that we have heard a name for the  7 genealogies.  We would like to know what genealogies  8 are going to be -- I mean there is a mass of  9 documents.  We would like to bring the right documents  10 over to cross-examine Ms. Wilson-Kenni.  I would like  11 to know what genealogies she is going to give evidence  12 about.  On the fish site witnesses, it would be nice  13 to know who the witness is and also what fish sites or  14 what general areas the evidence will cover.  15 THE COURT:  Your friend said the mid-Skeena.  16 MR. WILLMS:  Yes, that's illuminating.  If there is any  17 particularity that my friend can provide about the  18 middle Skeena that would be most helpful.  On the  19 expert on -- one issue I should say that I have  20 advised my friend is that during the course of the  21 trial he sought to tender a document showing where the  22 obsidian that Ms. Albright referred to in her report  2 3 came from.  2 4    THE COURT:  Yes.  25 MR. WILLMS:  I have advised my friend that I have withdrawn my  26 objection to the document that he sought to mark, the  27 document that I objected to.  But sometime in our  28 correspondence, and I don't know where it came from,  29 my friend suddenly requested an admission as to dating  30 the obsidian flows.  We don't have any notice of an  31 opinion on how old these obsidian flows are.  We have  32 never been served with a document.  And, in fact, the  33 only document that we have been served with formally  34 is the document that was filed in court.  We have  35 certainly received some other material, but I don't  36 know what opinion evidence my friend is referring to.  37 We have never received a report that puts the dating  38 of these obsidian flows into issue.  I just should say  39 that I have withdrawn my objection to the document  40 that my friend sought to tender in respect of Ms.  41 Albright's opinion of where the obsidian came from.  42 So I don't know what issue my friend or what opinion  43 this witness is going to be giving on the dating  44 because we don't have a dating opinion.  45 On the amendments to the Statement of Claim --  46 THE COURT:  Well, let's deal with the witnesses.  Did you want  47 to add anything to that, Mr. Macaulay? 1796?  Proceedings  1  MR.  MACAU  2  3  THE  COURT  4  5  6  7  MR.  RUSH:  8  9  10  THE  COURT  11  MR.  RUSH:  12  13  14  THE  COURT  15  MR.  RUSH:  16  17  18  19  THE  COURT  20  21  MR.  RUSH:  22  23  THE  COURT  24  25  MR.  RUSH:  26  27  28  29  30  31  THE  COURT  32  33  34  35  36  MR.  RUSH:  37  THE  COURT  38  MR.  RUSH:  39  40  41  42  43  44  45  46  47  jAY:  No, my lord, I think my friend, Mr. Willms, has  pretty well covered it.  :  I think it is convenient to deal with these things  individually.  Mr. Rush, are you able to respond to  what Mr. Willms has just said regarding these proposed  witnesses?  There is nothing magic about the opinion of Mr.  Skoda, it is on the maps.  We have had the maps for a  considerable amount of time, that is the opinion.  :  I'm sorry, the opinion --  The opinion is the maps and how the maps came into  being.  We have sought through notices of  admission, --  :  Yes.  -- which I have here and my friend's responses, to  obtain admissions regarding the maps.  The admissions  we have received are inadequate.  Given those  admissions, we have to call Mr. Skoda.  :  To prove that the maps -- what we are talking about  are the overlays?  The overlays, my lord, the ones to your left-hand  side and as well the map atlas.  :  And you want Mr. Skoda to prove that those  documents, those maps are what they purport to be?  Well, what is contained -- my friends have admitted  that the general geographic area depicted on the map  is accurate.  And I -- they have not agreed that any  of the overprinting can be agreed to.  And, with  respect, some of the overprinting Mr. Skoda can speak  to.  :  Well, he is going to be proving that -- well, I am  groping, but is it this that he is going to be proving  that the overlays are accurate in the sense that they  accurately reflect the information that he was given  by Mr. Marvin —  No, my lord.  :  Mr. George?  No, my lord.  The overlays, in our opinion, are  proved.  What he will prove is the base which is one  of the bases that are referred to in the map atlas  series.  The map atlas series requires that printing  on the map be proved.  Regrettably one of the  defendants has not made admissions with regard to the  printing of the map and the names contained on the  map.  In my submission, we have to call someone to  prove that.  So that is the purpose of his evidence.  But as to the opinion, the opinion is the map, 17969  Proceedings  1 what is contained on the face of the map.  Much of  2 that has, in our opinion, already been addressed by  3 experts called by the plaintiffs.  This is information  4 which is of a technical or mechanical nature as to how  5 the information was obtained and where the names come  6 from.  7 THE COURT:  What are you talking about?  Names are you talking  8 about, place names?  9 MR. RUSH:  Yes.  10 THE COURT:  Mountain tops, rivers, things like that?  11 MR. RUSH:  Yes.  12 THE COURT:  Not editorial comments like we have in some of the  13 map atlases?  14 MR. RUSH:  Very little of the editorial comments, so far as I am  15 presently instructed, is generated by Mr. Skoda, that  16 is all from experts.  17 THE COURT:  All right.  Well, we will see if that is sufficient  18 for your friend's immediate purposes.  19 MR. RUSH:  I can give you an example which, in my submission, is  20 not an issue, my lord.  And an example, of course, is  21 the Morris River is identified as a certain place on  22 the map.  And the Wet'suwet'en name Wedzen Kwe is not  23 admitted as being the Morris River.  Now, that  24 probably is not in issue because the evidence is  25 replete I think on the matter of Wedzen Kwe being the  26 Morris River.  2 7 THE COURT:  Yes.  28 MR. RUSH:  But that is an example of other types of geographic  29 features named for which it is not clear -- for which  30 it is not to directly related that the name and the  31 place are the same.  32 Now, fishing sites.  I'm sorry, genealogies was  33 next, the question of genealogies.  We can advise our  34 friends as to which genealogies will be addressed.  I  35 don't have them on the top of my head, but there are  36 five remaining outstanding.  I believe that they are  37 all Wet'suwet'en genealogies.  They will all be  38 addressed by Ms. Wilson-Kenni.  The fishing sites, so  39 far as a witness goes there, I am not in a position at  40 this point in time to advise my friends of who that  41 witness will be.  I can advise my friends at the  42 beginning of the week.  The fishing sites are the  43 sites above Hazelton and below Kispiox.  44 So far as my friend's comments concerning his  45 admission regarding the sourcing of the obsidian, the  46 point of concern is that the document my friend  47 withdraws his objection to identifies four individual 17970  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  but separately defined sources of obsidian at Edziza.  His admission makes no distinction between the  different flows.  And, in my submission, those flows  will be shown to be distinguished by age.  THE COURT:  The document doesn't —  MR. RUSH:  The document doesn't show that.  But it is clear from  the evidence that that was what was intended to be  shown by the document.  And, in my submission, I have  tried to make information available to my friend to  satisfy him that that's what those designations in the  document indicate.  MR. WILLMS:  Well, my lord, I can save my friend the trouble.  It is clear from the document -- I read the document  as representing different flows.  One is called flow  one, one is flow two, one is flow three, one is flow  eight or something like that.  COURT:  Are they dated flows?  WILLMS:  Not in the documents, no.  RUSH:  No, they are not.  WILLMS:  But it shows different flows.  COURT:  I think what your friend is saying is that he wants  you to admit or he wants to prove the date for each of  the four distinct flows.  WILLMS:  And that's the point, my lord, where I say we have  had no opinion, nothing under Sections 10 or 11 of the  Evidence Act from my friend about that.  The only time  that arose was during the course of our discussion on  me withdrawing my objection to the document that my  friend tendered.  So we do not have an opinion from my  friend within the meaning of either Section 10 or 11  about the dating.  Frankly, my lord, what the relevance of that is I  don't know because Ms. Albright gave evidence about  how old the obsidian was that she found which was not  based at all on how old the flows were.  In fact, her  evidence had nothing to do with the flows and  everything to do with Fladmark's work.  So I don't  know why my friend wants to do this.  But, my lord,  there is no notice under either Section 10 or 11 of  the opinion, whatever it may be that my friend seeks  to tender.  THE COURT:  Mr. Rush, when can you give your friend whatever  notice is required in that regard?  MR. RUSH:  Well, my lord, I guess there is a difference,  obviously a difference between us about the fact of  notice because, in my submission, I tried to make  available documents to him which would satisfy him on  THE  MR.  MR.  MR.  THE  MR. 17971  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 age.  I made reference to a thesis, provided him  with excerpts from it, and provided him with  references to other articles.  Now, I can -- I suppose  I can do that at the first of the week.  THE COURT:  All right.  Well, I think the issue is joined on  this question.  I think it will be necessary for you  to give whatever further notice you think is required,  Mr. Rush.  And for me, if necessary, to examine the  material when we reconvene to see that whatever notice  there is has been adequately given.  It seems to be a  matter that ought not to cause a great deal of  controversy if the scientific evidence is precise and  not open to serious technical question or objection,  but I really don't know anything about that.  Do you  have in mind what Mr. Rush is talking about, Mr.  Willms, when he says he has provided you with  material?  MR. WILLMS:  Well, he has given me material that indicates the  range of the date on the flows at Mount Edziza.  I  don't know if that's what he is talking about about  dating.  But I don't recall -- I certainly did read  the material when I got it, but I don't recall putting  a date to a flow when I read it.  I don't know what it  is that he says this witness is going to say.  It may  well be that it is a big so what, but I don't know  yet.  Well, as I say, I think the issue is joined.  We  will have to deal with that when the time comes.  Mr.  Rush should give whatever further notice he thinks  advisable as soon as he can give it.  All right.  MACAULAY:  My lord, can we have dates by which we have the  genealogies identified and the fishing sites  identified with regard to which evidence will be lead?  We know from experience that Mr. Rush and Mr. Grant  get caught up in other matters, they have a great deal  to do.  The result sometimes is that -- with the best  of intentions on their part, the result sometimes is  that we get very, very short notice of some of those  things.  I think there should be -- there ought to be  a date next week by which those matters are -- it  surely isn't difficult to list the five genealogies.  It ought not to be difficult to the list the fishing  sites.  We are dealing with 300 fishing sites or  something like that.  THE COURT:  Well, the fishing sites must be the ones that are  clearly marked on the map atlas, are they not?  MR. RUSH:  That's right.  THE COURT  MR. 17972  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 COURT  MR.  THE  MR. MACAULAY:  Which ones are we going to deal with?  MR. RUSH:  Well, my lord, I don't know how many.  I haven't  reviewed the number on Gitanmaax to Kispiox.  THE COURT:  There are a great many, 25 or 30.  MR. RUSH:  Yes.  No more than that, though.  THE COURT:  But those are the ones you are talking about?  MR. RUSH:  Yes.  THE COURT:  Yes.  MR. MACAULAY:  There are documents -- you know, in our vast  collection of documents there are certain documents  that pertain and some evidence perhaps that pertains  to a particular site or group of sites.  That's the  reason for what I consider to be quite a proper  request for the identification of the 30 odd.  If he  is in a position to lead evidence the week after next,  I expect him to be in a position to give almost  immediately a list of the sites that the witness is  going to address.  Well, let's look at the map atlas.  It is -- where  is the map atlas, Madam Registrar?  Which number is  it, Mr. Willms?  WILLMS:  358-2, my lord.  COURT:  And between Gitanmaax and Kispiox I wouldn't think  there is more than 20, is there?  Can we count them.  There seems to be about 20.  All right.  Well, then are those the ones you want  to call some evidence about, is it, Mr. Rush?  That's correct.  All right.  And is that sufficient notice, Mr.  Macaulay?  MR. RUSH:  Well, I haven't got my map with me.  Perhaps what I  will do is to send a letter to my friend giving my  understanding of those to deal with, and I expect him  to say yes or no.  That may be the best way of dealing  with that one.  The other five genealogies, again Mrs.  Dora Kenni is here, and I think she knows what --  THE COURT:  What is reasonable, Mr. Rush?  By what date next  week can you give your friends the notice of the  genealogies about which you are going to be adducing  evidence?  MR. RUSH:  Well, I can tell them today of the precise ones.  THE COURT:  Okay.  MR. RUSH:  Maybe I can rattle them off the top of my head, I'm  not sure.  There is Woos, Goohlaht/Caspit, Smogelgem.  I think those are the three that I recall off the top  of my head.  There are three others, I believe.  We  will find out in just a moment.  MR.  THE  MR.  THE  RUSH:  COURT:  RUSH:  COURT: 17973  Proceedings  1 THE COURT:  Ms. Mandell is getting instructions.  2 MR. RUSH:  In terms of speaking to these, I would say Thursday  3 of next week.  The others are Hagwilnegh and Samooh,  4 S-A-M-0-O-H.  5 THE COURT:  Do your friends have these?  6 MR. RUSH:  No, they don't have them.  7 THE COURT:  Will they have them by Thursday?  8 MR. RUSH:  Or if we can get them to them by Thursday, yes, they  9 will have them.  I suggest that Thursday will be the  10 date that we can more particular about the fishing  11 sites that will be addressed in the evidence of that  12 witness.  13 THE COURT:  All right.  Well, unless anybody says otherwise, I  14 think that we will have to proceed that way.  I would  15 have hoped that this evidence could have been called  16 next week because I think we are crowding ourselves  17 into the four days -- we are crowding things into the  18 four days that I thought we were going to use for  19 other purposes.  But it is too late to do anything  20 about that now, so we will have to accomodate that.  21 Now, you have -- you've mentioned a question of  22 the amendment, Mr. Willms.  23 MR. WILLMS:  All I can say on that, my lord, is that depending  24 on the scope of the amendment that will determine the  25 notice.  Obviously if there are large amendments to  26 the Statement of Claim, Monday may be wholly -- or  27 Tuesday may be wholly inadequate at the start of the  2 8 week.  If the amendments are minor it may be more than  29 adequate, but I can't say.  Certainly it is this  30 defendant's position that the Statement of Claim, any  31 amendments must take place before any defendant is  32 compelled to commence his case.  33 THE COURT:  Mr. Rush, can you tell us whether the amendments go  34 beyond the statement you made some time ago that with  35 some reluctance you would be making a submission,  36 without intending in any way to retreat from your  37 primary position, you would be seeking to advance an  38 alternative claim for what I think I very generally  39 described as Baker Lake or Calder-type aboriginal  40 rights.  Do the amendments go beyond that?  41 MR. RUSH:  I think you are talking in kind, are you, my lord?  42 THE COURT:  Yes.  43 MR. RUSH:  No, they don't.  For the most part, I can tell your  44 lordship that the amendments address questions of  45 plaintiffs and houses.  There are a number of  46 plaintiffs who have deceased since the period of time  47 of the commencement of the action. 17974  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 COURT:  Yes.  MR. RUSH:  And we will be amending to reflect the current  holders of names, amendments of that type.  So the  primary objective of the amendments will be in respect  of the parties.  And in terms of other types of  amendments, if I may say amendments dealing with the  substantive or claim portions of the Statement of  Claim, they will not go beyond what your lordship has  identified as a type of amendment.  They will -- at  this point I don't think I can go beyond saying that  they will not be substantial in number of that kind.  THE COURT:  All right.  Is it not possible they could have  notice of this before the weekend before next weekend?  RUSH:  It isn't, my lord, no.  COURT:  Not possible?  RUSH:  No.  MR.  THE  MR.  MR.  MACAULAY:  Well, I don't have to open my case until October,  so I can seriously say I am not prejudiced.  I am not  THE COURT  MR.  THE  faced with a July opening.  Well, I am not going to order that the -- I am not  going to order what counsel says is impossible, but I  am not going to pronounce in any way upon the question  of whether we will be able to deal with the amendments  as early as later in the same four-day week of which  notice is given.  It's easy for me to say this, if I  could say it, but at the moment I am not disposed to  allow this question to stand in the way of proceeding  with the defendant's case, unfair as that may appear  to them to be.  I have a general sense that it will not in the  long run turn out to be unfair, but there is always a  risk.  But I do not think that the defendants should  take from what is being said now that there is any  likelihood that they won't be expected to embark upon  the defence on the following Monday.  That's a matter  that is always open, but that's my present view of the  matter.  I should hear from you, Mr. Willms, on the  question of Rigsby or Turner and these other questions  that Mr. Rush brought under the rubric of clean-up  with regard to experts.  Anything you wanted to say  about that?  WILLMS:  Well, just before that, my lord, my friends did  mention documents that were marked for identification  where he wanted to lift the identification and tender  the documents proper.  COURT:  Yes. 17975  Proceedings  1 MR. WILLMS:  And as with the other evidence, notice by next  2 Thursday of which documents my friend intends to make  3 the arguments in respect of would be helpful.  I am  4 sure that he must have a list or a partial list  5 already of those documents, and if he can refer that  6 to us so that we have some notice of which documents.  7 I do want to add, my lord, that I did not hear my  8 friend say what we've been hearing for some time, and  9 that's that there would be a submission in respect of  10 the documents that have been marked with the expert  11 reports.  My friend did say something about truth and  12 not, but I understood that my friends were going to  13 make an argument that the documents went beyond being  14 just something that the witness referred to, that  15 there was some more meaning to it which, of course,  16 would affect the opinion that has been filed in  17 support and based on the documents.  18 I don't know what my friend -- we've been hearing  19 about this.  I don't know whether my friend has an  20 argument or intends to advance an argument on that,  21 but that could be done at the same time because I'm  22 sure some of the documents my friend is referring to  23 that have been marked for identification would fall  24 within the same category.  25 THE COURT:  Perhaps that's what Mr. Rush is speaking about.  26 MR. WILLMS:  Maybe that's what he is speaking to.  27 MR. RUSH:  Yes, it is.  I think there are a number of different  28 types of arguments that are outstanding that have in  29 some sense been deferred, and some of those I think we  30 could conveniently address next -- a week Wednesday.  31 THE COURT:  Would that go so far as to include the argument on  32 the admissibility of historical opinions?  33 MR. RUSH:  Yes.  34 THE COURT:  All right.  35 MR. RUSH:  Well, I think there are some documents such as I  36 think an example would be Dr. Galois' report --  37 THE COURT:  Yes.  38 MR. RUSH:  -- which stands as an example of a document that has  39 been marked for identification for which there is an  40 argument that must be addressed.  41 THE COURT:  All right.  42 MR. WILLMS:  In respect of the other documents, I mean I  43 anticipated Dr. Galois, my lord, because we've been  44 waiting for that.  But if there are some other  45 documents, if my friend could advise us by next  46 Thursday of what other documents he is going to be  47 seeking to tender as exhibits proper that would help. 17976  Proceedings  1 MR. MACAULAY:  Are we to address the large, very large issue of  2 the categories of documents that are admissible and  3 those that are not?  Taken on the one hand say  4 colonial dispatches that are found in the archives and  5 at the other end newspaper reports at the bottom end,  6 so to speak?  7 THE COURT:  Well, at some point we have to.  8 MR. MACAULAY:  But that the submission — if that is the  9 argument that the plaintiffs intend to start making on  10 Thursday, we are not going to have enough time.  Oh,  11 we have to.  Yes, it has to be done, I agree.  12 MR. WILLMS:  I mentioned that very briefly, my lord.  But I am  13 assuming that in order for my friend to say, for  14 example, mark Dr. Galois' report, he will have to  15 advance the basis for the admissibility of the  16 underlying documents.  I am just anticipating that.  I  17 hope I am anticipating correctly.  18 MR. MACAULAY:  The Dr. Galois collection, eight volumes, covers  19 almost all the categories that there are so that will  20 be an interesting and useful exercise, but it will  21 take more than one day I would think.  22 THE COURT:  Are you planning to address those broad questions,  23 Mr. Rush?  24 MR. RUSH:  Well, I don't know how long this argument is going to  25 take.  You've heard bits and pieces of it all the way  2 6 through.  You have heard objections come forward with  27 certain documents and various positions have been  28 advanced.  It is certainly the case that the documents  29 with respect to Dr. Galois represent a range of types  30 of documents for which there are outstanding issues  31 and arguments to be made.  32 I am not sure that we had intended that every one  33 of those issues be canvassed in the course of the  34 argument.  But having said that, I think it is also  35 the case that if they get raised in the course of the  36 argument, I think unless there is some discreet way of  37 hiding them off it makes sense to address them at that  38 time.  I think that the proposal that I would make is  39 that if it does take longer than two days or a day  40 then it does.  I think we just have to address that  41 issue, my lord.  42 However, I suggest that we attempt to define for  43 our purposes what it is that we see as composing the  44 argument that we wish to put forward at that time in  45 respect of Dr. Galois' report.  And to the extent that  46 this may include or not clear up issues that my  47 friends have, then I think that that should be raised 17977  Proceedings  1 by them.  Perhaps if it will take longer on other  2 issues then that might be a matter that could be  3 deferred.  It may not be.  4 THE COURT:  That would include archival documents as well?  5 MR. RUSH:  I think, yes.  6 THE COURT:  This is something that I have to have some  7 assistance from you on archival documents.  8 MR. WILLMS:  My lord, I don't want my friends to think that we  9 are taking him by surprise.  I have been thinking of  10 of the documents that have been filed in support of  11 the opinions, anticipating a document that went beyond  12 this is a document that the witness referred to.  13 THE COURT:  Yes.  14 MR. WILLMS:  That's what I am expecting.  I am not expecting  15 anything less than that, and if I am wrong in that I  16 would like my friends to tell me because that affects  17 our position on the reports that have been filed  18 relying on all those documents.  19 THE COURT:  All right.  Well, we will have to see what is said  20 in the course of the argument.  And if you're not able  21 to respond to it, Mr. Willms, we will be taking  22 advantage of Mr. Rush's suggestion that it will have  23 to be deferred to some other time.  24 MR. MACAULAY:  I don't see how we can get a quarter of the way  25 into those issues very usefully.  2 6 THE COURT:  Well, we will have to do the best we can.  To an  27 older man the judge said, I don't think you can serve  28 the sentence, but do the best you can.  We will do the  29 best we can.  30 MR. WILLMS:  Now, on the other items that my friend mentioned in  31 respect to Dr. Rigsby -- of course Dr. Rigsby's report  32 has been marked.  I don't know what it is my friend  33 wants to call Dr. Rigsby for.  I'm sure that at the  34 time he wants to seek leave to call him, he will  35 advise the court and we can deal with it at that time.  36 So I don't think we need to deal with Dr. Rigsby right  37 now.  My friend will let us know why he wants to call  38 him at the appropriate time.  39 On the Morrell affidavit, because we are calling  40 lay witnesses at the beginning of our case, my lord,  41 and in respect of fishing, we would like the Morrell  42 affidavit before the plaintiffs close their case.  43 Certainly cross-examination, if it is necessary on the  44 Morrell affidavit, could be deferred and wouldn't need  45 to be done before.  46 THE COURT:  You haven't seen the affidavit yet?  47 MR. WILLMS:  No. 1797?  Proceedings  1 MR. RUSH:  I don't have it, my lord.  I am not sure it can be  2 produced before the end of the case.  3 MR. WILLMS:  Well, the Morrell affidavit in respect to fishing  4 sites, my lord, is, as I take it, going to identify  5 fishing sites that are allegedly owned and used by  6 various plaintiffs.  There is lay evidence that the  7 defendants want to lead about fishing on the river,  8 and that aspect of my friend's case should be in  9 before we reply to the fishing evidence.  Now, I don't  10 know what the difficulty is with that affidavit, but  11 we would like that before we close our case.  12 In respect of the Turner cross-examination, my  13 lord, that can take place after the plaintiffs close  14 their case.  15 THE COURT:  Yes.  16 MR. WILLMS:  In respect of Dr. Lane and the expert requests, the  17 document requests, clearly we will need those before  18 either Dr. Greenwood or Dr. Farley give evidence.  But  19 if they came -- if there was some delay in them, I  20 don't think that would affect the start of the  21 defendant's case.  Obviously, the sooner the better.  22 THE COURT:  Yes.  All right.  Well, I can only say about the  23 Morrell affidavit that if the affidavit isn't in hand  24 before the plaintiffs close their case, or to put it  25 another way, before the defendants open their case  26 then the plaintiffs will have to assume the risk of  27 having the affidavit ruled inadmissible if fairness is  28 a real risk to the defendants by reason of having  29 embarked upon that part of their case.  30 I can put it any other way, if the plaintiffs  31 don't furnish the affidavit before the defence embarks  32 upon their case well, then, the -- a new dimension of  33 fairness may well arise which may well be a problem to  34 the plaintiffs.  But that is the risk that they will  35 have to assume if they haven't got the notice of the  36 affidavit to the other side before they start calling  37 their evidence.  I don't think I can say more about  38 that.  39 But it seems to me that in a case of this  40 magnitude there often have to be loose ends.  I don't  41 think that these matters usually turn out to be nearly  42 as important at the end of the case as they sometimes  43 appear to be during the course of the trial or in the  44 preparation for trial.  I have always said that I  45 think most of the applications can be done -- wouldn't  46 usually affect the end result of the trial, and the  47 same applies to these outstanding or overhanging 17979  Proceedings  1 matters, but that is always subject to change in  2 particular circumstances.  It is a very general  3 thought and may not apply to this case.  4 But other than that, it seems to me that with the  5 time that we have we will have to plod on for four  6 days and do what we can during those four days.  7 Anything that isn't done will either have to fall by  8 the wayside or be dealt with at a later time, and  9 fairness will become a factor that will then have to  10 be taken into account.  Is there anything else that  11 you want to do today?  12 MR. WILLMS:  My lord, there are a number of minor points.  13 THE COURT:  Yes.  14 MR. WILLMS:  In fact, I can deal with a couple right now.  I had  15 objected to two documents that were marked during Ms.  16 Albright's evidence.  One was a radio carbon date from  17 Gitanga'at.  The other one was the obsidian sourcing  18 846-6 was the radio carbon date.  19 THE COURT:  846-6?  20 MR. WILLMS:  And 846-7 was the sourcing on Edziza.  I want to  21 withdraw the objection to the marking of both of those  22 documents.  And we still have --  23 THE COURT:  846-6 was an obsidian artifact found at —  24 MR. WILLMS:  No, 846-6 is a single bata analytic radio carbon  25 date that was taken from a sample that Ms. Albright  26 obtained at Gitanga'at.  27 THE COURT:  And were they marked for identification?  28 MR. WILLMS:  No.  They were marked subject to the objection.  So  29 846-6 has been marked subject to the objection.  I am  30 withdrawing the objection.  31 THE COURT:  Are you involved in this, Mr. Macaulay?  32 MR. MACAULAY:  Only very peripherally.  I won't stand in the way  33 of any --  34 THE COURT:  You are not maintaining any objection to those two  35 documents?  3 6 MR. MACAULAY:  No.  37 THE COURT:  Thank you.  38 MR. WILLMS:  And the other one there is a document that says  39 Edziza one, Edziza two, Edziza three.  Once again  40 there are obsidian artifacts that Ms. Albright  41 obtained and had them sourced.  There is a two-page  42 letter that has been marked as Exhibit 846-7, or I  43 should say two pages which indicate where those pieces  44 of obsidian came from.  I am -- that was marked again  45 subject to my objection.  I am withdrawing the  46 objection to that.  Your lordship has already heard  47 about the dating and my friend, I take it, is going 17980  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  MR. WILLMS  MR. RUSH:  MR. WILLMS  MR. RUSH:  THE COURT  MR. RUSH:  to -- will have to deal with that again.  THE COURT:  Thank you.  :  Now, that is --  Just before --  :  Sorry.  Do you want, my lord, to deal with them as we go  through them or do you want my friend to deal with  them all.  I have one point I would like to raise.  Yes, I would rather do it now.  All right.  My friend has withdrawn his objection to  846-6 which is the carbon dating of bata analytic.  I'm not quite clear whether in so doing he assumes  that the admission that he made in his letter to me of  January 30th was intended to be encompassed by his  withdrawal of the objection.  The admission is that:  "We admit that the bata analytic analyze the radio  carbon sample from the location described in radio  carbon sample date sheet R-SR-85-1 and obtained  the radio carbon date as set out in Exhibit  846-6."  I take it that that was what was intended by your  statement?  MR. WILLMS:  That was.  THE COURT:  All right.  Thank you.  Mr. Willms.  MR. WILLMS:  Now, the next item was with Dr. Mathews.  I think  through Dr. Gottesfeld we obtained a draft report of  Dr. Mathews.  I tendered it as an exhibit and my  friend Ms. Mandell objected that I tendered it.  It  was marked as Exhibit 799 For Identification.  My  friend and I have talked about this and Dr. Mathews  has explained in a signed document, two signed  documents, the differences between the draft and the  final.  And so -- so that will be marked.  As I  understand it, the objection to marking 799 proper  will be withdrawn and Exhibit 799 For Identification  will now become an exhibit proper at the trial.  My  friend Ms. Mandell has the documents from Dr. Mathews  of explanation to mark as a separate exhibit.  THE COURT:  All right.  MS. MANDELL:  Perhaps, my lord, it could be done that there is  four letters which are basically my friends' questions  to Dr. Mathews and his response --  THE COURT:  Yes.  MS. MANDELL:  — on two different occasions.  And with 799 the  four enclosures could be included. 17981  Proceedings  1 THE COURT:  Yes.  2 MS. MANDELL:  I think that is probably the most convenient way  3 of doing it.  4 THE COURT:  A, B, C, D?  5 MS. MANDELL:  Yes.  6 THE COURT:  The four letters will be A, B, C, D.  7 THE REGISTRAR:  Exhibit 799 will become    8 THE COURT:  799 is already in.  9 MS. MANDELL:  It is now an exhibit.  10 THE COURT:  So the first exhibit will be 799 capital A and the  11 second letter which Ms. Mandell is handing in now.  12 MS. MANDELL:  The first letter is A and the rest follow A, B, C,  13 and D.  14 THE COURT:  All right.  15 THE REGISTRAR:  My lord, on the exhibit list I have 799 For  16 Identification.  17 THE COURT:  Yes.  It will now be 799 not for identification.  18 THE REGISTRAR:  And then these will be A, B, C, and D.  19 THE COURT:  Yes.  Thank you.  20  21 (EXHIBIT 799 A, B, C, D:  Question and Response  22 Letters)  23  24 MR. WILLMS:  The next one is a minor one.  During the  25 cross-examination of Dr. Mills a report by Ruth  26 Murdoch was put to Dr. Mills.  In the report by Ruth  27 Murdoch there was a reference to interviews done with  28 a number of Wet'suwet'en people, including some  29 plaintiffs.  We requested production of the material  30 on file with the Moricetown Band that is referred to  31 in Murdoch's document.  My friend wrote back on the  32 30th and advised that he had not yet been able to  33 obtain copies of transcripts or notes with the  34 Wet'suwet'en hereditary chiefs.  We repeated our  35 request to determine whether or not they had turned  36 up.  I don't know whether my friend has had any  37 success in locating those documents.  38 MR. RUSH:  They have been searched for and they haven't been  3 9 found.  4 0 THE COURT:  All right.  41 MR. WILLMS:  The final matter that my friend and I discussed was  42 the Marvin George maps.  You'll recall during the  43 cross-examination, my lord, of Mr. George it came to  44 pass that the draft maps that he used when the  45 witnesses swore the territorial affidavits were not --  46 THE COURT:  Territorial affidavits or interrogatory maps?  47 MR. WILLMS:  No, the territorial affidavits, my lord.  I think 17982  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  we have marked all the interrogatory maps.  MR. WILLMS:  Mr. George explained how he took the maps and the  editorial affidavit and went through with the deponent  and made changes and the like.  We have received those  maps.  I have requested of my friend that the  originals be tendered rather than copies.  The reason  why we would like the originals tendered is that on  many of the originals first of all there is different  either pen or pencil, different colors, yellow  highlighter on some locations.  Also apparently  different handwriting in different pen.  And so in  this case in respect of -- if I can put it this way, a  picture being worth a thousand words, the original  explains in volume what the process was that Marvin  George described briefly in court.  If the originals were marked there would be no  need to re-call Marvin George, as far as this  defendant is concerned, to have Mr. George go through  and identify all of the different pens, different  colors going on at different times and different  people because it is obvious when you look at the  original that that is what has taken place.  THE COURT:  You have looked at the originals, have you?  MR. WILLMS:  We have the originals.  And, in fact, I have them  ready to tender as exhibits.  It is my suggestion that  the originals be marked, as I said, and as far as this  defendant is concerned then it would not be necessary  to re-call Mr. George to cross-examine him on these.  I understand my friend has a submission on why the  originals shouldn't be marked.  THE COURT:  Yes.  All right.  Mr. Macaulay, did you want to  answer to this?  MS. KOENIGSBERG:  I guess I dealt with Mr. George and, in fact,  did part of the cross-examination leading to these  exhibits.  I would certainly agree with Mr. Willms'  submissions.  In fact, if the originals are not marked  as exhibits, I don't know how we would avoid having to  re-call Mr. George and cross-examine him on them  because you won't be able to see on a copy what you  can see on the original.  COURT:  All right.  Mr. Rush?  RUSH:  Well, I don't know how anybody drew that conclusion.  Have copies -- have copies been attempted is what I  would like to know?  WILLMS:  Yes, my lord.  And the biggest -- one of the large  problems with copies, of course, is that black pen  comes out the same as pencil.  Another problem with a  THE  MR.  MR. 17983  Proceedings  1 copy is that yellow highlighter is almost impossible  2 no matter how you to do it to pick up light yellow  3 highlighter.  But the other point is if my friend  4 wants to take the originals and make colour copies for  5 himself, he can certainly take them out and do that.  6 But a colour copy is a pale copy of the original.  7 MR. RUSH:  My submission is that Marvin George wants his maps  8 back, it's as simple as that.  These maps have maps of  9 a similar kind with similar kinds of writing on it  10 with similar kinds of pen and with similar types of  11 ink, line drawings with similar kinds of shadings was  12 copied and was submitted.  The copies -- it was  13 satisfactory to my friends in the case of Mr.  14 Sterritt's seven maps or six or whatever the number  15 was, and in this respect the copies came out just  16 fine.  They were photocopies of the originals and the  17 originals were returned.  18 I see no reason why these originals can not be  19 returned.  These were photocopied -- colour  20 photocopies of those.  It seemed satisfactory to my  21 friend.  I can't see any difference whatsoever in the  22 Marvin George draft maps which my friends have had for  23 a considerable period of time.  I don't see any  24 difference in those maps with the maps that were  25 tendered to the court by Mr. Sterritt and were  26 photocopied and that was satisfactory in that  27 situation.  These are working maps.  They are maps  28 that Mr. George wants to retain in his possession for  29 his use.  I see no reason why copies wouldn't be  30 satisfactory.  31 THE COURT:  Well, I am in a position where I'm not able to pass  32 any kind of informed judgment on whether copies are  33 just as good as originals.  It seems to me that the  34 best evidence rule and practice dictates that  35 originals when required are used at trial.  That's not  36 to say that they can't be extracted as required and  37 returned or that they can't be sent away to be copied  38 and, of course, ultimately they can be returned.  But  39 if the defendants insist, I think they are entitled to  40 have the originals filed.  But I think that any  41 accomodation that is necessary can be -- is much to be  42 desired.  I think the maps should be marked as  43 exhibits.  I think the originals should be marked as  44 exhibits.  They can then be returned to Mr. George to  45 make whatever copies he wants and the originals then  46 returned to the court file.  47 MR. WILLMS:  Thank you.  My lord, I have the maps in three — 17984  Proceedings  1 there is an index in each volume and the maps are each  2 individually at a tab.  I have got some copies for  3 you, not colour.  So, my lord, I would tender the  4 three volumes.  Since they are tabbed sequentially not  5 in each volume, but tabbed 1 through 34B.  6 THE COURT:  That's for the first volume?  7 MR. WILLMS:  No, all three.  Volume 1 is tabs 1 to 9, volume 2  8 is tabs 10 to 24, and volume 3 is tabs 25 to 34B.  9 THE COURT:  All right.  10 MR. WILLMS:  I am going to suggest, my lord, that they have one  11 exhibit number dash the tab rather than three  12 different exhibit numbers.  13 THE COURT:  And so the next exhibit number?  14 THE REGISTRAR:  Would be 1060, my lord.  15 THE COURT:  1060-1 to 1060-34B.  16  17 (EXHIBIT 1060-1 — 1060-34B:  Volume 1-3, Marvin  18 George's Maps)  19  2 0 THE COURT:  All right.  21 MR. WILLMS:  Now, my lord, that I think concludes the matters  22 that Mr. Rush and I discussed --  23 THE COURT:  Just finishing this one up, do you want to take  24 these away, Mr. Rush, and have copies made?  25 MR. RUSH:  Well, copies were generously made for me.  Whether  26 they are the copies that --  27 THE COURT:  Well, if Mr. George finds them unsuitable then he  28 can come back and get the originals.  29 MR. WILLMS:  And now the mylars.  30 THE COURT:  Mylars?  31 MR. WILLMS:  We have received the mylars, the original mylars.  32 What you cannot reproduce when you reproduce the  33 mylars is the whiting out on the mylars.  It will not  34 come through on any reproduction.  Once again, that's  35 why it is my submission that the original mylars  36 should be marked each as an exhibit.  You will recall  37 that these are the basis of the maps that were sent to  38 Mr. Skoda.  3 9 THE COURT:  Yes.  40 MR. WILLMS:  And you can see the whiting out on the mylars when  41 you put the mylars over a dark background.  You can  42 see where boundaries have been removed, but you can  43 not reproduce that whiting out, not by any means we've  44 discovered, so I'm submitting the originals again  45 here, my lord.  46 THE COURT:  They haven't been previously marked?  47 MR. WILLMS:  Not these mylars, no. 17985  Proceedings  1 THE COURT:  These are Mr. George's mylars?  2 MR. WILLMS:  Yes.  Mr. George, he had mylars, I think a dylar.  3 I can't remember whether it was a dylar or a mylars  4 for what we've been calling 9B.  But he had 9A, a  5 mylars for that 9A still at his place of employment, I  6 think.  And so these are the -- the first mylars, if I  7 can call it the 9A mylars, mylars 1.  8 THE COURT:  Yes.  9 MR. WILLMS:  And it has Mr. Skoda's note on it received — it  10 has got map 9A, June 28, '88, L. Skoda marked on the  11 right-hand side.  12 THE COURT:  Yes.  13 MR. WILLMS:  And as I understand it from Mr. George's evidence  14 and from the note on it, this was the mylars that was  15 used to make map 9A.  I would submit this mylars as  16 the next exhibit.  17 MR. RUSH:  Well, I strongly oppose this, my lord.  I can see no  18 reason, earthly reason, why it is significant to the  19 defendant's case to be able to demonstrate that there  20 were white outs on the mylars.  These were tendered to  21 demonstrate what was given as the black lines, not the  22 white white outs to Mr. Skoda for the production of  23 the overlays.  24 Now, these maps, these mylars are one of a kind.  25 These are mylars that Mr. George presently uses.  In  26 my submission for the limited value of demonstrating  27 that there are white outs, it seems to me not to  28 outweigh the right of Mr. George to have his maps  2 9 which have been maps you have heard have been prepared  30 since 1984.  The other map is the planimetric mylars  31 which is one of a kind, he uses this mylars.  In my  32 submission he should continue to use the mylars which  33 is satisfactory is either the copy that they want to  34 make of the mylars itself or a print that they want to  35 make of the existing mylars.  36 Now, in terms of the evidentiary value of what my  37 friends are getting at, if they want to cross  38 examine -- if the point is that they want to ask Mr.  39 George about these mysterious white outs or whatever  40 they are --  41 THE COURT:  I don't think your friend suggested they were  42 mysterious.  43 MR. WILLMS:  They are not mysterious.  They appear to follow  44 placement of boundaries at earlier times.  There are  45 some pencil writings on them, too, that is very  46 difficult to recreate.  It is just the markings on it  47 are almost impossible to duplicate. 17986  Proceedings  1 THE COURT:  All right.  2 MR. RUSH:  I am saying, my lord, these are Mr. George's working  3 mylars.  He ought to be able to continue to work with  4 them.  There are adequate alternative means of  5 demonstrating the copies of this material if they want  6 it.  They can get either duplicate mylars or we can  7 have Mr. George speak to it.  But, in my submission,  8 there is absolutely no reason to retain those mylars.  9 THE COURT:  What is the history, they have been delivered to the  10 defendants for inspection?  11 MR. RUSH:  Yes.  During the course of the cross-examination the  12 cross-examination took the turn that they were  13 eliciting other types of maps, other documents.  Mr.  14 George indicated that these were available.  He said  15 he would go and get them.  They weren't in Vancouver.  16 He went and got them and gave them to me.  I sent them  17 to my friends.  Now, in -- these aren't like the  18 prints that have been handed up to your lordship  19 already.  There are other prints that could be made of  20 those, presumably.  We have got copies of those now.  21 But that is not the case with these mylars.  These are  22 one of a kind.  They are documents that Mr. George  23 uses.  He ought to be able to continue to use them.  24 They are not something that you can just snap your  25 fingers and produce at a whim.  It is a costly and  26 time-consuming effort to make these documents.  27 MR. WILLMS:  Well, my lord, I am somewhat taken aback by what my  28 friend says because he marked Exhibit 1011 which I  29 understood was the mylars for map 9B.  He marked that  30 one.  I just assumed that this is 9A and now we have  31 completed the record.  32 MR. RUSH:  Because there was a duplicate of the mylars.  33 THE COURT:  A duplicate can't be made of this one?  34 MR. RUSH:  Well, that's what I am saying.  My friends can make a  35 duplicate if they want.  Let them make their  36 duplicate.  We produced the original for them.  37 THE COURT:  The problem being that the duplicate won't show the  38 white outs.  39 MR. WILLMS:  I'm sure the white outs, unless Mr. George needs  40 the pencil marks and the white outs, it is more useful  41 to him to have a duplicate of this and us to have the  42 original marked in court than it is the other way  43 around, in my submission.  44 MR. RUSH:  Well, why is that, my lord?  What is the purpose of  45 that, if my friend could just explain that to us.  46 THE COURT:  Well, the workings of devine providence in counsel's  47 mind is not disclosed to me, and in due course perhaps 17987  Proceedings  1 it will be.  I think the answer to this problem is a  2 practical one.  I think following my previous ruling I  3 think the original mylars should be marked as an  4 exhibit.  I think it should be entrusted to Mr. George  5 for safekeeping on his undertaking to be given through  6 counsel, not counsel's undertaking, but Mr. George's  7 undertaking that it will be preserved and will be made  8 available in the course of these proceedings and any  9 appeals here from as may be required.  In that way the  10 requirements of the parties will be satisfied.  If Mr.  11 Willms wants to make any -- a copy of it for his use  12 in the interim, I think he should have the opportunity  13 to do that.  I think the original can be marked and  14 entrusted to Mr. George.  15 MR. RUSH:  Well, my lord, I just want to urge you on -- my  16 friend has introduced this particular mylars which is  17 the mylars of 9A.  I don't know what the situation is  18 with regard to 9A.  I'm not sure that there would be  19 any difficulty with your lordship's ruling there.  But  20 I do know that with regard to the original planimetric  21 map there would be difficulty because Mr. George was  22 working on that map.  He indicated that on the witness  23 stand.  That map is a working map that is in  24 production and he was working on it to do other things  25 with it.  26 THE COURT:  Do we have it before us today?  27 MR. RUSH:  Well, that's the other map.  This is the original  28 planimetric.  29 MR. WILLMS:  My lord, I am trying to take them one at a time so  30 I tried 9A.  We have dealt with the A.  Now I was  31 going to deal with the planimetric which as I  32 understand it is the -- we've got an exhibit.  I think  33 it is Exhibit 102 and 101.  34 THE COURT:  Just a minute.  The original mylars of 9A will be  35 Exhibit 1061?  36 THE REGISTRAR:  Yes.  37 THE COURT:  1061.  38  39 (EXHIBIT 1061: Mylar 9A)  40  41 THE COURT:  Just mark it and return it to counsel, please, Madam  42 Registrar.  Mark it in a way that it won't cover the  43 Village of Gitanmaax or anything like that.  44 THE REGISTRAR:  Yes.  45 THE COURT:  All right.  46 MR. WILLMS:  Now, this, my lord, the Exhibits 101 and 102 are  47 made from a planimetric base.  This is the planimetric 179?  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 COURT  MR. RUSH  THE  MR.  THE  MR.  THE  MR.  THE  MR.  base that was used for that mylars.  This particular  planimetric base has, especially in the northern  Gitksan areas, apparently boundaries lines that have  been whited out.  If you look through various drafts  of the plaintiff's territorial -- some of the  interrogatory maps the white outs then become relevant  in respect to where boundaries were shifted around.  The white you can see, as I said earlier, underneath  with a dark background, but you cannot duplicate it by  making another mylars.  Now, I am not opposed as your lordship ordered  with respect to Exhibit 1061 to my friend if he needs  to use this mylars to use the mylars in the same  fashion.  But once again, not only for this court but  for such other courts as may be interested in this  this is the best evidence.  All right.  What is the difference between the  previous one and this one in practical terms?  I know  what the difference is --  This is a working map that Mr. George is actually  changing.  I see.  It's a mylar that contains names on it, it contains  rivers, it contains boundaries.  This is a working --  it is the only one there is.  And it is incomplete?  It is incomplete.  It is in the process of completion?  Well, he has other projects that he is working on,  and he wants to use this map.  And change it?  Yes.  And he indicated that -- he indicated in his  evidence what he was doing when he realized that this  was the only one.  So he started to take some of the  lines out of it because he wanted to put it back it  back to its original shape because he had put markings  on it which changed the original form of the mylars.  In my submission, he ought to be able to continue to  work on his maps.  Well, I have no doubt that that is so.  It is just a  question of how that is to be accomplished.  How many  of these white out markings are there?  WILLMS:  If you go to the northern area, my lord, there  are -- it is hard to describe, but there may be 10 to  15 lines that have been whited out in the northern  part of the map that you can see when you have a dark  background underneath.  But you can't see it any other  COURT  RUSH:  COURT  RUSH:  COURT  RUSH:  COURT  RUSH:  THE COURT  MR. 17989  Proceedings  1 way and you can't duplicate it.  2 THE COURT:  Can a copy not be made of the mylars and with the  3 assistance of the technical people who can make these  4 copies, can they not duplicate the white out on the  5 copy?  6 MR. WILLMS:  My understanding, my lord, from our technical  7 people is no.  Now, if my friends have better  8 technical people.  9 THE COURT:  No, I don't mean that the white out will not show up  10 on the duplicate, but can the duplicates be made and  11 the white out be added to the copies?  12 MR. WILLMS:  Well, I hadn't thought of that because what  13 somebody has to do is interpret where these are and  14 try to create something which is not the witnesses own  15 document.  I hadn't, frankly, considered that.  16 THE COURT:  Well, I have no doubt that science has reached the  17 stage where that can be done.  I think that the --  18 because it is a working document I think at the  19 present it should be copied.  I think the copy should  20 be doctored to conform to the original and the  21 original should be returned to Mr. George to do  22 whatever he has to do with it.  23 MR. MACAULAY:  I take it, my lord, that that will involve the  24 agreement of counsel for all the parties that the  25 markings on the copy accurately reflect the whited out  26 lines.  I gather that's what's in issue here.  If we  27 can't agree, I don't say that that is likely to  28 happen, but if we can't agree we will have to approach  29 your lordship for rulings on that.  30 THE COURT:  The planimetric map is of what, of the claim  31 territories?  32 MR. RUSH:  Of an area that encompasses the claim territory.  33 There are certain lines on the map that -- with names  34 on them.  Throughout the evidence of Mr. George, my  35 lord, he expressed that there was an original  36 planimetric map and that was asked for.  37 THE COURT:  Yes.  38 MR. RUSH:  I believe copies have been already -- copies of this  39 map at certain points in time have already been  40 exhibited.  41 THE COURT:  All right.  Well, then it seems to me that the way  42 the matter must be managed is for the copy to be made  43 and that copy then doctored, if I can use that unhappy  44 phrase, to conform to the original and the original --  45 and both copies can then be delivered to the  46 plaintiffs and they will confirm, if such is the case,  47 that the copy conforms to the original.  And if not, 17990  Proceedings  1 then the copy and the original can be brought back to  2 court and the explanation given.  I will have to make  3 a decision whether the copy conforms to the original  4 or it doesn't.  The number will be 1062.  That number  5 will be reserved for the doctored copy when it is  6 available.  7  8 (EXHIBIT #1062 RESERVED)  9  10 MR. WILLMS:  My lord, just one other minor matter.  I haven't  11 corresponded with my friend on it.  I don't expect  12 him -- there was one request with Mr. Grant in respect  13 of interview notes that Ms. Marsden had with each of  14 the witnesses that were placed in the witness file  15 respecting -- I think it was respecting fishing sites.  16 I can't recall what the topic was.  But Mr. Grant was  17 going to look for those.  And we, of course, would  18 like those before the plaintiffs close their case.  19 THE COURT:  It is awkward to speak to Mr. Grant if he is not  20 here.  21 MR. WILLMS:  I know, but perhaps my friends could alert Mr.  22 Grant to our concerns.  23 THE COURT:  I am sure they will be glad to do that.  24 MR. RUSH:  We recognize that as an outstanding request.  25 THE COURT:  Thank you.  Mr. Macaulay.  26 MR. MACAULAY:  I hesitate to get into the mapping business at  27 this late date, but I take it from your lordship's  28 rulings on the other mylars that there is no problem  29 about using those documents again by Mr. George for  30 other purposes.  In other words, they will stay as  31 they are?  32 THE COURT:  Well, I understood -- yes, I understood the one that  33 I am returning to him which is 1061 was on his  34 undertaking that it will be returned as required.  35 MR. MACAULAY:  Without any change?  36 THE COURT:  I intended it to be without change.  37 MR. RUSH:  That's the way I understood it.  38 THE COURT:  All right.  39 MR. MACAULAY:  That only comes up because the last one clearly  40 is going to change.  41 THE COURT:  That's right.  42 MR. MACAULAY:  That's all.  43 THE COURT:  Anything else?  44 MR. RUSH:  Yes.  This is more a matter of advice to your  45 lordship.  Cross-examinations on the territorial  46 affidavits, the affidavits have been marked.  The  47 practice has been that we will file the transcripts of 17991  Proceedings  1 the cross-examinations together with the exhibits that  2 pertain to the particular cross-examination.  I wish  3 to do that.  I am not sure that it is necessary to  4 take court time to do it.  I will not do it today, but  5 I will amass those and present them to the court clerk  6 and they can perhaps be marked appropriately.  But we  7 are gathering together all of those exhibits and they  8 will be filed.  9 THE COURT:  The affidavits have already been filed?  10 MR. RUSH:  The affidavits have been filed and they have exhibits  11 numbers.  These will be A, B, C, and D under those  12 exhibit numbers.  13 THE COURT:  How many of them are there?  14 MR. RUSH:  My recollection is outstanding it could be something  15 in the order of 22.  16 THE COURT:  Yes.  Well, that's a matter that counsel are free to  17 discuss with Madam Registrar.  If she has a problem  18 she'll bring it to my attention, I'm sure.  19 MR. RUSH:  All right.  Thank you.  The next matter is with  20 regard to Ms. Sylvia Albright in addressing the  21 question of the admission of the radio carbon dating  22 at Gitanma'at.  I took my friend Mr. Macaulay's  23 silence to mean that he did not disagree with the  24 admission and would make the same admission as Mr.  25 Willms.  26 MR. MACAULAY:  Mr. Rush is correct, my lord.  2 7 THE COURT:  Thank you.  28 MR. RUSH:  The next thing, my lord, is that we had filed a  29 binder of interviews with hereditary chiefs in the  30 course of the evidence of Dr. Antonia Mills.  I  31 believe these are Exhibits 948 and 949.  I would like  32 the leave of the court to have those removed from the  33 custody of the registrar for the purposes of indexing  34 and tabbing.  I think that they were filed without  35 indexes or tabs, I think it would be a more convenient  36 reference point if we had an index to them.  I am  37 proposing that we do that if you have no objection.  38 THE COURT:  No, I think that would be helpful.  I'm sure it  39 would be.  40 MR. RUSH:  Those are all my matters, my lord.  41 THE COURT:  All right.  Anything else?  42 MR. WILLMS:  No, my lord.  4 3 MR. MACAULAY:  No.  44 THE COURT:  I will look forward to seeing you all then a week  45 from Tuesday.  I wish you a very pleasant intervening  46 period and long weekend.  Thank you.  47 17992  Proceedings  1 THE REGISTRAR:  Order in court.  Court stands adjourned.  2 (PROCEEDINGS ADJOURNED TO JULY 4, 198 9)  3  4  5 I hereby certify the foregoing to  6 be a true and accurate transcript  7 of the proceedings herein to the  8 best of my skill and ability.  9  10  11    12 LISA FRANKO, OFFICIAL REPORTER  13 UNITED REPORTING SERVICE LTD.  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


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