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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1989-07-10] British Columbia. Supreme Court Jul 10, 1989

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 18418  Submission by Mr. Grant  1 July 10, 1989  2 VANCOUVER, B.C.  3  4 THE REGISTRAR: Order in court. In the Supreme Court of British  5 Columbia this 10th day of July, 1989, in the matter of  6 Delgamuukw versus Her Majesty the Queen at bar, my  7 lord.  8 THE COURT:  We can proceed.  Mr. Grant.  9 MR. GRANT:  Yes, my lord.  As we left matters on Friday we had  10 the amendments to the statement of claim to deal with.  11 THE COURT:  Yes.  12 MR. GRANT:  And I'm prepared to speak to that now.  13 THE COURT:  It's opposed is it?  14 MR. GRANT:  I understand so.  15 MR. GOLDIE:  Only to a very limited extent.  My principal  16 concern are the terms, my lord.  17 MR. GRANT:  Well, okay.  I'll just introduce it then, my lord.  18 THE COURT:  Yes.  Okay.  19 MR. GRANT:  The amendments are to conform to the evidence,  20 clarify the pleadings, and rectify names of chiefs who  21 are deceased.  I would just advise your lordship of  22 the first section of the -- and I deal with this as  23 amendments to the writ because as you'll recall the  24 English names of many of the chiefs are not on the  25 statement of claim in those paragraphs.  So since May  26 11th, 1987, when the last amendment was obtained, the  27 late David Gunanoot, Chief Nii Kyap, has died and  28 Gerald Gunanoot now holds that name, and that  29 amendment is made.  Lelt, Fred Johnson, has died, and  30 Lloyd Ryan has taken that name.  Martha Brown, the  31 late Kliiyem Lax Haa, has died and Eva Sampson has  32 taken that name.  George Naziel, the former Madeek,  33 has died and James Brown has taken that name.  Johnny  34 Mack, the former Klo Um Khun, K-l-o U-m K-h-u-n, has  35 died and Patrick Pierre has taken that name.  36 Sylvester Williams, the late Hagwilnegh, has died and  37 Ron Mitchell has taken his name.  Joe Wright, the late  38 Xsgogimlahxa, has died and Vernon Milton has taken  39 that name.  And Magnus Turner, the holder of the name  40 Wiigyet from Kitsegukla, has died and Roy Westley has  41 succeeded to that name.  There was a misspelling of  42 Sarah Layton's name and that is corrected in this  43 writ.  It was L-a-y-t-o-n is the correct spelling.  44 There have been amendments made with respect to  45 the houses of which persons are representing and these  46 are reflected in evidence.  For example, I will go to  47 the writ now -- or the statement of claim, I'm sorry 18419  Submission by Mr. Grant  1 my lord, because these are reflected in the statement  2 of claim as well as the writ.  In the case of  3 paragraph 1, Delgamuukw is bringing the action on  4 behalf of himself and a member of Haaxw.  Hage,  5 H-a-g-e, is deleted as the evidence has described.  6 Hage is now part of the house of Delgamuukw.  7 In paragraph 4 Lelt brings the action on behalf of  8 himself and his house and the house of Haak'w,  9 H-a-a-k-'-w.  Luulak has been deleted and Luulak is  10 a -- is described as a chief in Lelt's house in the  11 commission evidence of Lelt and also in Exhibit 853.  12 That exhibit, my lord, is the genealogies of the  13 Gitksan and 853 (26).  14 In the case of Kliiyem Lax Haa, paragraph 8,  15 it's -- Kliiyem Lax Haa is representing herself and  16 the members of the houses of Kliiyem Lax Haa and  17 Wii'Mugulsxw.  Xsagyo, X-s-a-g-y-o and Hawaaw,  18 H-a-w-a-a-w, are removed as they are presently within  19 the house or biologically connected and within the  20 house of Wii'Mugulsxw, and that would be Exhibit 853  21 (44) .  22 Gwis Gyen is bringing this action on behalf of  23 himself and the members of the house of Gwis Gyen.  It  24 had formerly been the house of Hax Bagwootxw and  25 that's demonstrated by the evidence of both -- of Gwis  26 Gyen on his commission evidence and the evidence of  27 Olive Ryan.  28 Gyolugyet, paragraph 13, is bringing the action on  29 behalf of herself and the members of the house of  30 Gyolugyet, and that's reflected in her evidence, the  31 evidence of Mary McKenzie.  32 In the case of -- this is on the writ, my lord,  33 but not in the statement of claim.  There's a line  34 reference at Gitludahl, G-i-t-l-u-d-a-h-1, who's  35 referred to in paragraph 32, is bringing action on  36 behalf of himself and the members of the house of  37 Gitludahl and Wiigyet.  It appeared that although --  38 at the time of the amendment in May of '87 the  39 statement of claim was amended, but the writ is just  40 brought in accordance with that.  Guuhadak,  41 G-u-u-h-a-d-a-k, is deleted as a separate plaintiff  42 and a separate house.  Exhibit 853 (12) shows that he  43 is within the Yagosip house today and of course the  44 name Guuhadak in May of 1987 at the time of the last  45 amendment was held by Thomas Wright who held it as a  46 separate house, but since his -- he has died, no one  47 has taken the name and there are -- and all of the 18420  Submission by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  THE  COURT  17  18  19  20  MR.  GRANT  21  THE  COURT  22  MR.  GRANT  23  24  25  26  27  THE  COURT  28  29  MR.  GRANT  30  THE  COURT  31  32  33  MR.  GRANT  34  THE  COURT  35  MR.  GRANT  36  THE  COURT  37  MR.  GRANT  38  39  THE  COURT  40  MR.  GRANT  41  THE  COURT  42  MR.  GRANT  43  44  45  46  47  members of that house are also represented within  Yagosip's house.  Now, with respect to paragraphs 50, 53, 55, 61,  72, 74, 74A and 75, there are amendments in all of  those paragraphs and I will -- of a similar nature,  and I will deal with them at once.  There's -- and  they are -- 53, for example, says that the plaintiffs  in certain paragraphs numbered are hereditary chiefs  of the Wet'suwet'en and are descendants and this is  what is -- "and/or successors of the hereditary  Wet'suwet'en chiefs".  That is intended, my lord, to  reflect the evidence that you've heard that in certain  cases the present holders may have been adopted in,  may not be biologically connected.  And that amendment  is throughout those paragraphs I've listed.  I suppose it could also refer to a chief who was  selected to be chief upon the death of a previous  chief, but not in the direct blood line of the former  chief, would it?  Right.  Does it go any further than that?  Well, I think you are saying it a different way than  what I have said, which is that where the present  holder, for example, or some holder in the past, their  biological connection is chosen as a successor, but  there's not a direct biological line.  Yes.  Well then I suppose you're saying that an  uncle is an ancestor?  In this case, yes.  So this wouldn't be -- this amendment wouldn't be  necessary if the new chief was a nephew, but your  amendment is necessary if there's an adoption?  Yes.  An example of course is Delgamuukw himself.  Yes.  If you may recall there were three lineages there.  Yes.  And the lineage in which the earlier Delgamuukws had  been --  Yes.  -- all died out.  Yes.  All right.  That's an example of that.  Now, paragraph 56 and  56A is a replacement of the previous paragraph which  defined a territory as that marked on schedule A,  which was a large map which is now on the overlay  series and was metes and bounds described.  This ties  directly to the evidence before your lordship and 18421  Submission by Mr. Grant  Submission by Mr. Goldie  1 refers to -- and it's broken up because Exhibit 646-9A  2 refers to Gitksan territory and 646-9B refers to  3 Wet'suwet'en.  But the last sentence at 56A allows us  4 to keep the terminology of territory throughout the  5 rest of the statement of claim without a lot of  6 needless amendments.  7 In 57 there are spelling changes to 57 h) adaawk  8 and kun'ga, which are spelled as I believe they appear  9 in the transcript, or at least as they've been spelled  10 in court.  And there's an addition of crests as well  11 as totem poles in i), as reflected in the evidence,  12 and then k) is added, and that's of course -- there  13 has been extensive evidence of the feast system.  14 Paragraph 67 has the addition of "for this  15 purpose" and it's just for clarification.  That's in  16 paragraph 67 1. on page 17 and in 67 2. again there's  17 an addition for clarification.  It appeared that we  18 overlooked, referring to defendant, the provincial  19 crown when -- after the federal crown was added.  20 Paragraph 72 responds to the allegation of the  21 defence of a defence of abandonment, and that's "the  22 Plaintiffs, their ancestors and/or predecessors have  23 never abandoned nor ceased to assert their aboriginal  24 title, ownership and jurisdiction".  25 Those, my lord -- there are no amendments to the  26 prayers for relief, and those consist of the  27 amendments which we are seeking to make to the  28 statement of claim now.  2 9    THE COURT:  Thank you.  Mr. Goldie.  30 MR. GOLDIE:  My lord, it appears to me that only some of these  31 amendments are reflecting the evidence and my  32 principal objection is to the introduction of the word  33 "predecessors", and I'll come to that in a minute.  34 Generally speaking, the rest of my concerns relate to  35 the terms.  I have no objection to the introduction of  36 successor chiefs resulting from the death of encumbant  37 chiefs.  Perhaps, my lord, if I could -- does your  38 lordship have a copy of Mr. Rush's affidavit?  3 9    THE COURT:  Yes.  40 MR. GOLDIE:  I'll deal with these really paragraph by paragraph.  41 At paragraph 2 is what is being referred to and my  42 concern is that the holders of the -- the new holders  43 of these names should be bound by the evidence given  44 by the deceased chiefs, whether by interrogatories,  45 discovery, commission or otherwise, unless the new  46 holders gave evidence while holding the name.  In  47 other words, my lord, the new holders are to be bound 18422  Submission by Mr. Goldie  1  2  3  ]  4  5  THE  COURT:  6  7  MR.  GOLDIE  8  9  10  11  THE  COURT:  12  13  MR.  GOLDIE  14  THE  COURT:  15  MR.  GOLDIE  16  THE  COURT:  17  MR.  GOLDIE  18  THE  COURT:  19  20  21  22  MR.  GOLDIE  23  24  1  25  THE  COURT:  26  27  28  MR.  GOLDIE  29  THE  COURT:  30  31  32  MR.  GOLDIE  33  34  THE  COURT:  35  MR.  GOLDIE  36  37  38  THE  COURT:  39  MR.  GOLDIE  40  1  41  42  43  44  45  46  47  ]  by -- taking Kliiyem Lax Haa as an instance, Martha  Brown gave commission evidence and the new holder, in  my submission, ought to be bound by the evidence given  by the previous holder.  When you say "bound", do you mean treated as if the  new holder had given that evidence?  :  Yes.  I say that because we're making a change at  the end of the plaintiffs' case and I would prefer not  to reopen matters, and it seems to me that this is a  reasonable term to be imposed.  Well, the evidence given by the previous holders is  evidence in the case.  :  Yes.  Yes.  If it's been introduced it is evidence.  :  Oh, yes.  Yes.  Are you seeking anything more than that?  :  No, it's —  You're seeking a clarification that the evidence  given by former chiefs is not withdrawn or struck from  the record or whatever you can do in that regard if  anything.  :  Or ceases to bind the members of her house to the  extent that she purported to do so or he purported to  do so.  I'm always worried about that word bound or binding  somebody.  It carries with it the connotation of being  conclusive.  :  Well, perhaps --  Even the evidence that a witness gives himself isn't  conclusive against him or for him. It's just evidence  in the case.  :  It's evidence in the case, but when Mr. -- when an  interrogatory response was filed --  Yes.  :  -- on behalf of Albert Tait, it was a response on  behalf of Mr. Tait as representing the house of  Delgamuukw.  Yes.  :  Now, Mr. Muldoe, Ken Muldoe, was examined on  discovery before he became the Delgamuukw, the holder  of that name.  So far as -- my concern is that if  there was any contradiction in the evidence of those  two people, it would be the submission that the  interrogatory response of Mr. Tait is to be given  weight so far as the house of Delgamuukw is concerned.  And I don't want to have to say I want to examine Mr.  Muldoe now that he's become Delgamuukw. 18423  Submission by Mr. Goldie  1 THE COURT:  All right.  2 MR. GOLDIE:  Now, if I can go to paragraph 3, my friends -- my  3 friend Mr. Rush says that the description of the  4 representative nature of the following plaintiffs has  5 been changed to conform with the evidence at trial.  6 Now, as Mr. Grant has indicated, it is more than a  7 change in the description, it is the elimination of  8 certain named plaintiffs.  Taking the first example of  9 Delgamuukw, Mr. Muldoe ceases to speak for the house  10 of Hage, H-a-g-e, and that house disappears as a named  11 plaintiff.  Now, the evidence may be that the  12 interests of the members of that house are taken care  13 of elsewhere, but that house disappears so far as  14 being a named plaintiff is concerned.  The same goes  15 with respect to Luulak.  When Lelt ceases to speak for  16 Luulak nobody speaks for Luulak.  So far as the  17 allegation in the statement of claim is concerned, it  18 is as if a named plaintiff has abandoned his claim.  19 And the same goes with respect to the two houses that  20 Mrs. Sampson as Kliiyem Lax Haa ceases to speak for.  21 Now, Gwis Gyen, Mr. Stanley Williams, is a little  22 different.  Originally Mr. Williams asserted that he  23 was Gwis Gyen and a member of the house of Hax  24 Bagwootxw and sued on behalf of the members of that  25 house.  I should -- yes, the May 11th writ alleged as  26 follows "Gwis Gyen, also known as Stanley Williams,  27 suing on behalf -- suing on his own behalf and on  28 behalf of all the members of the house of Haaxw  29 Bagwootxw".  Now, that is being changed to be "Gwis  30 Gyen, also known as Stanley Williams, suing on his own  31 behalf and on behalf of all the members of the house  32 of Gwis Gyen".  So Hax Bagwootxw disappears and a new  33 house becomes a plaintiff.  His representative  34 capacity earlier was on behalf of the members of Hax  35 Bagwootxw.  His representative capacity at this time  36 is on behalf of the members of Gwis Gyen and the  37 result is the disappearance of Hax Bagwootxw as a  38 plaintiff.  39 So those -- there is the disappearance of  40 plaintiffs and there is the emergence of a new one.  41 In my submission, the term that should accompany this  42 is that claims made or on behalf of the houses that  43 have disappeared should be dismissed as abandoned,  44 just as it would be if plaintiff X said "I  45 discontinue" or an amendment was granted which  46 eliminated his name from the statement of claim or the  47 writ.  The treatment of that is that he has abandoned 18424  Submission by Mr. Goldie  1 the claim, and in my submission the same result should  2 follow with respect to these named houses.  3 So far as the substitution -- so that would affect  4 the houses of Hage, H-a-g-e --  5 THE COURT:  Are these collected in the affidavit?  6 MR. GOLDIE:   Beg your pardon, my lord.  7 THE COURT:  Are these collected in the affidavit?  8 MR. GOLDIE:  No, they're not.  9 THE COURT:  I better make a note of that.  Hage, H-a-g-e.  10 MR. GOLDIE:  Yes.  Perhaps if I can go through it in terms of  11 the list as it is in paragraph 3 of the affidavit.  12 In respect of Delgamuukw, the house of Hage  13 disappears.  In respect of Lelt the house of Luulak  14 disappears.  In respect of Kliiyem Lax Haa the houses  15 of Xsaxgyoo, that's X-s-a-x-g-y-o-o, and Hawaaw,  16 H-a-w-a-a-w, disappear.  In respect of Gwis Gyen, the  17 house of Hax Bagwootxw disappears, and in respect of  18 Gyolugyet, Mary McKenzie, the house of Kwamoon  19 disappears.  Most of these came into the picture in  20 September of '86, although Hax Bagwootxw was one of  21 the original plaintiffs.  22 Now, it really doesn't matter if the interests of  23 the plaintiffs' individuals are found protected  24 elsewhere, all I'm saying is that the named plaintiffs  25 that I have named, their claims should stand as  26 dismissed as abandoned.  27 Now, it really doesn't matter too much, but I  28 cannot recall any evidence that the house of Hax  29 Bagwootxw has disappeared or ceased to exist.  The  30 evidence was that there was a dispute between the  31 holder of that name and Mr. Stanley Williams, and Mrs.  32 Ryan gave some evidence of this, but that's  33 irrelevant.  As I say, I cannot recall any evidence  34 the house itself ceased to exist, but if it chooses  35 not to make a claim, as is the effect of this  36 amendment, then a claim in its name stands dismissed.  37 Now, paragraph 4 is Guuhadak.  That was Mr. Thomas  38 Wright.  He was added as a separate plaintiff in  39 September of '86 after he had given commission  40 evidence to the effect that he wished to be  41 represented in his own right.  And if -- if it is the  42 case that the members of his house are represented in  43 other respects, then the claim made in Guuhadak's name  44 should also be dismissed as abandoned.  45 If I can go to paragraph 5, my lord, I don't take  46 objection to the reference to successors.  The case to  47 date was based on the allegation that the hereditary 18425  Submission by Mr. Goldie  1 chiefs succeeded to that name by biological descent.  2 Well, it became clear that there were many instances  3 where that wasn't so, so I take no objection to that.  4 In paragraph 6 there is a change which makes  5 reference to predecessors.  6 THE COURT:  Paragraph 6 of the —  7 MR. GOLDIE:  Paragraph 6 of Mr. Rush's affidavit.  8 THE COURT:  Yes.  9 MR. GOLDIE:  And perhaps the first example is paragraph 53 of  10 the amended statement of claim.  11 THE COURT:  The proposed or the —  12 MR. GOLDIE:  The proposed one which is appended to Mr. Rush's  13 affidavit.  I'm sorry, it should be 56 is the one that  14 I want to refer to, my lord.  And the allegation that  15 is proposed is "The Gitksan chiefs, their ancestors  16 and or predecessors, since time immemorial have owned  17 and exercised jurisdiction..." Expressed in that way,  18 it is a claim based on succession of -- by any means,  19 whether by war or -- it is successors of predecessors  20 not only of name, but also predecessors in occupation,  21 and I don't think that was intended.  It would  22 include, for instance, the conflicting claims over  23 Bear Lake.  There was one suggestion that some of the  24 people there are really Gitksan, although they are  25 Carrier-Sekani apparently.  The claim of predecessors  26 then would extend to that, and I don't think this is  27 an amendment which conforms to the evidence.  I think  28 it is an amendment of substance.  29 THE COURT:  What word do you say would be acceptable?  30 MR. GOLDIE:  If it is to avoid what I'm concerned about, it  31 should be and/or predecessors of that name or of their  32 name.  Something which would confine it to the  33 representative capacity in which the plaintiff chiefs  34 are plaintiffs.  35 THE COURT:  So as to confine it to chiefs who held that high  36 office in accordance with Gitksan or Wet'suwet'en  37 practise?  38 MR. GOLDIE:  Yes.  I have no comment with respect to the  39 amendment to paragraph 57 referred to in --  4 0 THE COURT:  How about 5 6A?  41 MR. GOLDIE:  I'm sorry, my lord?  42 THE COURT:  5 6A.  43 MR. GOLDIE:  56A, yes, well, that's the same thing as — I'm  44 sorry, 56A is -- provided the word predecessor is  45 confined, I have no objection to that.  What it is  46 doing is stamping the final territorial claim in  47 accordance with the maps 9A and 9B.  This is, of 18426  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  Submission by Mr. Goldie  Submission by Mr. Macaulay  Submission by Mr. Grant  course, a great deal of evidence, some of it  conflicting, about how one gets to 9A, but that's got  nothing to do with the final choice of the plaintiffs  of what they wish to rely upon.  My friend states that other alterations are  syntactical or grammatical, but there are two which I  think are purely typographical, but I should draw your  lordship's attention to them.  In paragraph 49B the  allegation there used to be, and I start with line 2,  "and is bringing this action on behalf of herself",  and I don't understand the plaintiff to have changed.  I think it is still the same lady, and I assume that's  just a mistake.  MR. GRANT:  Yes.  MR. GOLDIE:  49C, the second line there, "the Plaintiff,  Wigetimschol, is the hereditary chief of the house of  Wigetimschol", used to be of the house of Namox, and I  assume that's not intended to change because if it is  that's a new house and the disappearance of Namox.  And of course the -- I wish as a final term the right  of the defendant to amend the defence and  counter-claim.  THE COURT:  Thank you.  Mr. Macaulay.  MR. MACAULAY: My lord, it appears that the claim now is a joint  claim rather than a joint and several claim, and if  that's not what's intended by the -- by counsel for  the plaintiffs, perhaps they should consider what's  been done in paragraphs 56 and 56A.  Those paragraphs  refer only to a -- what is clearly a joint claim and  only to the external boundaries.  Do I take it that  the internal boundaries of the houses are no longer in  issue?  And of course I assume the order, whatever  order was made regarding amendments, will provide for  the amendment of the Canada's defence as well.  THE COURT:  Thank you.  Mr. Grant.  MR. GRANT:  When one examines, my lord, the previous paragraph  56, in response to the last issue raised by Mr.  Macaulay, you -- it's delineated in the same way, that  the plaintiffs have owned and exercised jurisdiction  over the lands described in schedule A, which is a  metes and bounds of an external boundary and set out  on the map attached as schedule B hereafter referred  to as a territory.  So 56 and 56A parallel the  previous pleadings.  There never was any mention of internal boundaries.  Within the pleadings, no.  THE COURT  MR. GRANT  THE COURT  No. 18427  Submission by Mr. Grant  1 MR. GRANT:  No, that wasn't delineated in the pleadings and the  2 plaintiffs don't think that that's necessary to be  3 delineated in the pleadings.  The issue ultimately for  4 the court is going to be dealing with the territory,  5 and we've proven it in the way we felt was  6 appropriate.  7 Now, there is certainly some misconception on the  8 part of my friend, Mr. Goldie, that I wish to clarify.  9 I'll deal firstly with Gwis Gyen.  The reason for that  10 change is the evidence of Stanley Williams in April of  11 1988.  He's asked on page 1 of his commission  12 evidence, which has been exhibited, "Your chief's name  13 is Gwis Gyen?"  And he says "Right." "And are you the  14 head of a house?"  "Right."  "What is the name of your  15 house?", and he gives the name as 'Yaxyagaahuuwaalp,  16 '-Y-a-x-y-a-g-a-a-h-u-u-w-a-a-1-p, and then he  17 describes what that means.  Then he says "Do you know  18 Hax Bagwootxw?"  "Right."  "And what house is Hax  19 Bagwootxw in?"  The same house "'Yaxyagaahuuwaalp.",  20 with the same spelling as I have given.  21 Now, the amendment is to reflect that evidence.  22 It is not to delete a house or to add a new house.  23 It's the same house, but the pleading referred to the  24 house -- the pleadings, as you know, refers to the  25 houses by the names of the head chiefs of those  26 houses.  That's how it's generally been done, and in  27 this case the evidence indicated that the head chief  28 today of that house is Gwis Gyen.  That's why that  2 9 amendment is made.  So my friends should be under no  30 illusion that that is the deletion of a claim by a  31 named plaintiff.  It is not.  Exactly the same people  32 are represented, exactly the same territory is being  33 claimed, and that clarifies the naming of the house.  34 Now, with respect to the others, as I have  35 indicated, at page 11126 of Volume 174 Heather Harris  36 was asked in cross-examination by Mr. Goldie about  37 Hage and Delgamuukw.  And the -- and he was -- he said  38 at the bottom of that page.  39  40 "Q   Now, the name Hagee was in fact -- was in  41 fact taken by Ray Mowatt?  42 A   Yes.  43 Q   That's on page three of the --  44 THE COURT: Hagee —  45 MR. GOLDIE:  And there is no logical  46 connection --  47 THE COURT: I'm sorry, Hagee is a name in 1842?  Submission by Mr. Grant  1 Delgamuukw?  2 MR. GOLDIE:  It's on page three of the  3 Delgamuukw.  4 THE COURT:  Yes.  Thank you."  5  6 And the witness explains that.  7 Now, she goes on on page 11127 that those two  8 houses are amalgamated, and then on line 34.  9  10 "Q   Well, can you tell me in what way Hagee --  11 the house of Hagee survives as an  12 independent house.  13 A   It doesn't.  14 Q   No, it's parts of the house of --  15 A   Right, but it could have been amalgamated at  16 a time previous to Ray Mowatt taking a name,  17 because I don't know if this group of people  18 on page seven were the biological relatives  19 of Delgamuukw from an earlier time, or if  20 they were members of the original house of  21 Hagee."  22  23 Now, the evidence clearly established that Hage  24 today is amalgamated with Delgamuukw.  Therefore, all  25 of the persons -- every individual previously  26 represented as the pleadings is still represented.  27 They are represented in the house of Delgamuukw by Ken  28 Muldoe, Delgamuukw.  All of the territory claimed by  29 Delgamuukw still is being claimed, and there is no  30 territory separately delineated on Exhibit 646-9A,  31 which is the territory of Hage.  So there is no  32 difference and there is no abandonment of any claim.  33 Now, I will come back to Luulak.  I will deal  34 with -- I'm sorry, I can deal with Luulak now.  In  35 Luulak's case it was the commission evidence of Fred  36 Johnson on page 1 -- 5, Volume 1, page 5.  This is now  37 in evidence, the late Fred Johnson, and he says -- he  38 refers to Luulak and Luulak was his grandfather, at  39 the top of that page, and then he goes on, line 13 to  40 17:  41  42 "THE INTERPRETER: What are you saying, that  43 we have two ladies now, one lady's name  44 Luulak and one ladies name of Ta'axtsa'ox",  45 T-a-'-a-x-t-s-a-'-o-x, that's one word, "and  46 these are the people that are in the house  47 that must continue to follow the laws of our 18429  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  people in feasts and during funerals."  "And what is the name...", and then he's asked about  the name of the ladies.  And Exhibit 853, as I've already referred to you,  26, shows that Luulak is within the house of Lelt and  that genealogy.  Once again, my lord, exactly the same  persons are represented in the court action.  There's  no change of that, and exactly the same territories  are claimed.  Now, in this case, unlike the others, and if there  is any ambiguity about this I will not seek the  amendment, but in this case, unlike the others, there  is, and extensive evidence was given about it, a  separately delineated territory of Luulak down on the  south-east section.  Now, the evidence describes on  that same page and the page following of Fred Johnson  that Lelt is taking care of the Luulak territory.  If  there is any ambiguity in my friend's mind or any  confusion that may result, I would not want to delete  Luulak referred to there, but the plaintiffs say it is  not necessary.  But there is no abandonment of the  claim of that territory or the claim by people.  Now, my lord, I think with respect to --  What paragraph is Miluulak?  It's Luulak, not Miluulak. Luulak is L-u-u-1-a-k.  You may recall, my lord, that was the case where the  person died, the chief died.  Mr. Williams gave it,  and I think you observed that commission.  What paragraph is it in the proposed amended  statement of claim?  It would be paragraph numbered 4.  The previous  paragraph read "The plaintiff Lelt is the hereditary  chief of the house of Lelt and is bringing this action  on behalf of himself and the members of the houses of  Lelt, Luulak and Haak'w."  Now, the purpose of that statement, and as you may  recall long ago, a concern the court expressed was  that all of the Gitksan and all of the Wet'suwet'en  were represented in this action.  As the evidence has  indicated, there is not a necessity to refer to Luulak  as a separate house today and have Luulak represented  in the action.  Luulak is represented.  She's  represented by Lelt, and there is no -- and is now  part of the house of Lelt because of the small size of  that house group and is referred to on Exhibit 853-26.  And you say that the evidence shows that the members 18430  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.  THE  MR.  GRANT  COURT  GRANT  THE  MR.  COURT  GRANT  THE  MR.  COURT  GRANT  of the house of Luulak are members of the house of  Lelt.  Today.  And are included by the proposed paragraph 4?  That's right.  So there's no abandonment.  Now, with respect to Xsaxgyo and Hawaaw, that's  the Kliiyem Lax Haa amendment, there is no separately  delineated territory in Exhibit 9A for that group.  Wii'Mugulsxw has territory and Kliiyem Lax Haa has  territory and an examination of Exhibit 853-44 shows  that all of the living members of Xsaxgyo and Hawaaw  are within the Wii'Mugulsxw house group today.  So, in  other words, there's no change and no abandonment by  anybody.  Now, similarily with Guuhadak.  There's no  separately deferred territory.  Now, the intent of the amendment for predecessors  is that when you talk about ancestors and descendants  and then you talk about successors, you want to refer  to predecessors.  My concern with what my friend said  when he says predecessors of that name is that that is  not consistent with the evidence because in some cases  in a previous time the name may have been -- the head  chief of the house may have been a different name than  the present head name.  And a very contemporary  example is Axtii Hiikw and Tenimgyet.  In other words,  it's not enough to say that name, but the intent is to  parallel successors.  Now, and I believe -- oh, and my friend referred  to paragraph 49B, and I -- there was a transcription  mistake there.  That should be "herself", and it  appears that the last Gaxsbgabaxs should have a  "b-a-x-s" on that line, that's on page 10 of the  statement of claim, and yes, with respect to paragraph  49C that should be a chief of the house of Namox, and  that was a transcription mistake and there was no  intent to amend there.  49C.  Yes, it should be "The Plaintiff Wigetimschol is the  hereditary chief of the house of Namox and is bringing  this action...".  And I believe that was said -- "a"  in the previous one.  Yes, it should be "is a  hereditary chief of the house of Namox". That's how it  was worded before, and there's no change to those two  paragraphs intended.  So 49C should now read --  "The Plaintiff Wigetimschol is a hereditary chief of  the house of Namox and is bringing this action on 18431  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  behalf of himself and the members of the house."  49B  should be "is bringing this action on behalf of  herself and the members of the house of Gaxsbgabaxs",  and that should be about "b-a-x-s".  THE COURT:  I'm sorry, house of —  MR. GRANT:  Gaxsbgabaxs, G-a-x-s-b-g-a-b-a-x-s.  Seems the last  spelling is not consistent with the previous ones.  THE COURT:  All right.  MR. GRANT:   So I am concerned that if there is any question  with respect to the Luulak situation, as argued by my  friend, that we would leave that name in paragraph 7  but, as I say, it's redundant, but I'd rather have  redundancy than something else.  THE COURT:  What do you say about your friend's objection to  predecessors in view of the possibility that a chief  may have required -- a predecessor may have succeeded  to that rank other than in accordance with Gitksan  traditional practises or Wet'suwet'en traditional  practises?  I would ask -- I don't want to say a final word, but  I think that if there is a modifier, as your lordship  suggested, and I just would have to discuss this with  my colleagues, of predecessors --  Well, Mr. Goldie just said that it could be covered  by saying predecessors of that name.  That won't do it.  That won't do it?  No, because that's what I was referring to.  You  have the Tenimgyet Axtii Hiikw example, and that goes  back in history.  In other words, different chiefs in  different years may have been responsible, but I think  the predecessor in accordance with Gitksan and  Wet'suwet'en law would cover it in the sense that  it -- the concept is the successor predecessor  concept.  I mean, I would not want to face an argument  that because at an earlier time Axtii Hiikw was the  head chief of the house then Tenimgyet can't properly  bring it.  It's a different name now, and so that  wouldn't -- but I think the -- a modifier of in  accordance with Gitksan-Wet'suwet'en law would meet  our needs, but I'd like an opportunity to discuss  that —  THE COURT:  All right.  Thank you.  MR. GRANT:  -- with my colleagues.  Subject to that I would not  obj ect.  I've dealt with Mr. Macaulay's question.  I  believe I've dealt with all of those.  MR. GRANT  THE COURT  MR.  THE  MR.  GRANT  COURT  GRANT 18432  Submission by Mr. Goldie  Submission by Mr. Macaulay  1 THE COURT: All right.  Thank you.  2 MR. GOLDIE:  My lord —  3 THE COURT:  I'm sorry.  4 MR. GOLDIE:  -- could I draw my friend's attention to one other  5 matter.  I note that map 9A has a claim in the name of  6 Hax Bagwootxw so that appears to fall under the same  7 category of Goohlaht.  There appears to be a  8 territorial claim made in that name.  9 My lord, may I clarify my position with respect to  10 these I'll call them disappearing houses?  11 THE COURT:  Yes.  12 MR. GOLDIE:  It's not my intent to have any individual claim  13 dismissed.  What I'm concerned about is houses, and  14 Heather Harris in her evidence in transcript 174 at  15 page 11129 said this, and I was questioning her about  16 Hage:  17  18 "Q   Yes.  And that conclusion tells us that if  19 Hagee was a separate house, and its been  20 claimed that it is a separate house, it  21 ceased to be a separate house when Mr. Ray  22 Mowatt took the title?  23 A   Houses don't cease to exist when they  24 amalgamate.  A separate accounting is still  25 kept of the house properties, and in the  26 future they could reconstitute themselves."  27  28 Now, I -- to put it in a colloquial terms, I wish  29 to guard against the Chesire cat syndrome where the  30 house gradually disappears leaving behind it only a  31 grin, to reappear at some other time.  If -- as I said  32 earlier, if my friends' pleadings cause houses to  33 disappear, the evidence is that doesn't mean that  34 they've ceased to exist, but they cease to exist as  35 plaintiffs in this action.  And if there is -- they're  36 going to cease to exist to be plaintiffs in this  37 action, then I wish to have them dealt with in the  38 manner I'm suggesting.  3 9 THE COURT:  Thank you.  40 MR. MACAULAY: My lord, concerning paragraphs 56 and 56A, as I  41 understand my friend's responses is that yes, we are  42 claiming A and B, but we're only pleading A.  Now,  43 originally the plaintiffs were at liberty to plead  44 their case in any way they saw fit, but they're now in  45 a position of having to seek leave of the court to  4 6 amend and I don't think that the amendment should be  47 granted on that basis.  If they're claiming A and B, 18433  Submission by Mr. Grant  1 they should plead A and B.  2 MR. GRANT:  I think that the point my friend quoted from Miss  3 Harris is exactly the point, that there's two issues  4 here and what we've endeavoured in these pleadings, my  5 lord, is to have the pleadings deal with how the court  6 can handle the claim which is that all persons are  7 represented and within your eyes, within the  8 court's -- within the juris prudence of the court, the  9 concern is that they all be represented.  And the  10 amalgamation represents them, but there is no grin or  11 Chesire cat here because the -- the Gitksan within the  12 Gitksan system they know and they -- those territories  13 are still represented by persons who are before your  14 lordship.  And that's the crucial issue there.  15 THE COURT:  The corpus of the cat remains.  16 MR. GRANT:  The corpus of the cat remains and the cat's still  17 got a house or a territory I should say, but what I'm  18 saying is that they're amalgamated into -- it's to try  19 to reflect what is the status of the Gitksan houses at  20 the time that your lordship is dealing with them so  21 they can be properly represented.  And we -- there's  22 two issues here.  One is, is every Gitksan person  23 represented, and we've reviewed it and consider they  24 are.  And that's the point of these whole paragraphs  25 is that -- to represent every Gitksan person, and  26 secondly, is get every Gitksan territory represented.  27 And there's no ambiguity among the Gitksan.  They know  28 when Delgamuukw speaks today that Hage is sitting  29 beside him and that Hage -- any claims of Hage and  30 Hage's property are protected by Delgamuukw.  The  31 problem is is that my friend is putting a colouration  32 on this amendment to suggest that that's not the  33 reality either within the evidence or before your  34 lordship, and we don't want to -- we don't want any  35 ambiguity on that.  There's nobody -- nobody is  36 abandoning anything here.  Any claim that has been  37 before your lordship for the past two years, it's  38 still there.  But it's an effort to have these  39 pleadings reflect what you have heard, and I think  4 0 that's quite important.  41 And I must admit, my lord, for talking about  42 through the looking glass, the A and the B of Mr.  43 Macaulay, I don't know what he's referring to.  I know  44 there's a 56 and a 56A.  I don't exactly know what he  45 means that we have to do A and B.  46 THE COURT:  Well, I think what he's saying, if I understand him,  47 is that you've pleaded external boundaries as the 18434  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.  THE  MR.  THE  GRANT  COURT  GRANT  COURT  MR.  THE  GRANT  COURT  MR. GRANT  THE  MR.  THE  MR.  COURT  GRANT  COURT  GRANT  THE COURT  indicators of the territorial claim you're advancing  and you haven't pleaded any claims to internal  boundaries.  Right.  There's a volume of evidence and on one view I  suppose it may be said that the totality of the  internal boundaries equals the external boundaries.  Yes.  But that there is no claim specified in the  statement of claim which would permit a judgment to go  in favour of a house for a -- for what we have been  dealing with as a house territory or a territory  claimed by a house.  Well, the --  And I don't want to project myself further than I  have to without taking a possible scenario that one  house would succeed in establishing its claim to its  territory as described in the evidence, but another  house would fail.  And Mr. Macaulay asks what does  that do to your total claim.  Well, it may have the effect of modifying the  external boundaries or creating a Swiss cheese --  Yes.  -- effect.  Not that --  An unsuccessful claim to territory.  But the impact of -- for us to have -- I thought we  would face the opposite objection.  If we had  specified in a different way than what we had in 56 by  an individual territorial claim, both defendants would  have said now you're very late in the day and now  you're saying something different than what we've been  operating on the basis of.  The evidence of the  individual house territories cumulatively is the  evidence of the entire territory.  And there's two issues here.  One is the proof of  the entire territorial claim, that is, how do we prove  paragraph 56, and the other is what we are claiming.  And I think there is lots of evidence that the Gitksan  chiefs operate together and the Wet'suwet'en chiefs  operate together so that there's a corpus there that  works together.  All right.  Well, I have reached these conclusions;  that the amendments should go except for the question  of predecessors on which Mr. Grant indicated that he  wanted to consider possibly a change in the language  to conjugate the observations Mr. Goldie made in that  regard, and I will defer consideration of those 18435  Ruling by the Court  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  amendments, and Mr. Grant may speak to that matter  again at any convenient time after he's considered  possible alternative wording.  With regard to the claim of Mr. Goldie to have the  actions of the houses who are said to be  "disappearing" from the action, and with regard to the  observations made by Mr. Macaulay regarding the  consequences of paragraphs 56 and 56A, I consider  those matters to be questions of law which is not  necessary for me to decide at this time.  I think the  action should proceed on the basis of the proposed  amended statement of claim subject to the one matter  I've just mentioned, and for those other matters to be  dealt with at the end of the case after I have had the  benefit of counsel's full argument and opportunity to  reflect upon the consequences of these changes.  I am hesitant to pronounce finally on any of those  questions at this time and I will take them under  consideration if counsel remind me to deal with them  at the end of the trial or if I remember without being  so reminded.  Thank you.  Mr. Goldie, would you like  to start or would you rather take the morning  adjournment now?  MR. GOLDIE:  I think Mr. Grant has one more matter.  THE COURT:  Oh, I'm sorry, I thought there was only one matter.  MR. GRANT:  Firstly, my lord, I understand from Mr. Adams that  he made references to cases and he said that he would  tidy up his notes and these are his notes of exactly  what he read from.  He's prepared those and I've  provided a copy to my friend and a copy for your  lordship, and I wish to mark as the next exhibit now  an affidavit of Mr. Morell as I referred you to.  COURT:  Yes.  GRANT:  Matters worked out so that we could file this today  and that should be marked as the next exhibit.  I will  provide another copy to your lordship.  I just  realized of course the exhibit copy is a copy to be  kept separate.  GOLDIE:  My lord, before it's marked may I say a word?  COURT:  Yes.  GOLDIE:  This arises out of Mr. Morell's evidence and the  specific reference is in transcript Volume 209 at page  14048.  COURT:  14 04 8?  GOLDIE:  Yes.  COURT:  Yes.  GOLDIE:  And my friend Mr. Grant said one item he wanted to  THE  MR.  MR.  THE  MR.  THE  MR.  THE  MR. 18436  Submission by Mr. Goldie  1 advise the court with and he said, and I quote:  2  3 "You may recall with respect to Exhibit  4 35822, that should be brackets 22, the  5 fishing sites map.  Mr. Morell described his  6 methodology yesterday and there was a  7 question with respect to which sites he  8 observed and which sites he had been  9 informed of.  I propose after reviewing it  10 with the witness last night that it was a  11 longer process than I'd anticipated, that  12 the way to resolve it, and I advised my  13 friends of this, is that because of the  14 number of background documentation which my  15 friends -- it's been disclosed, but it's a  16 question of tracing through to make sure  17 that it's accurate, is that I will file an  18 affidavit of Mr. Morell referring to that  19 map in which he will list those sites that  20 he has observed and he will list those sites  21 that he was informed of by, for example, a  22 deceased chief like Albert Tait, and the  23 question of whether that's admissible can be  24 argued at a later date, but that affidavit  25 would be tendered as a supplement to the  2 6 map.  That would save me spending what I  27 realize is going to be much longer, not only  28 in preparation, but in examination today."  29  30 And my lord, the affidavit that has been proposed  31 contains a number of statements about fisheries  32 technicians observing fishing at certain sites.  Now,  33 that goes -- that's not evidence of reputation derived  34 from what somebody deceased has stated.  It is simply  35 pure hearsay, and I think it goes beyond what my  36 friend said he would do, which is file an affidavit of  37 Mr. Morell's personal observations and a list of those  38 in respect of which he was informed.  The paragraphs  39 of the affidavit which seem to me to be -- go beyond  40 what my friend said he would file and which appear to  41 me to be clearly objectionable, include 23, 24, 26 and  42 28, and there may be others that I haven't spotted.  43 But I think with respect, my lord, that the affidavit  44 in its present form is not admissible and although the  45 right was given to cross-examine on the affidavit, I  46 see no point in doing so unless the affidavit is  47 conformed to the description given by my friend of 18437  Submission by Mr. Goldie  Submission by Mr. Macaulay  Submission by Mr. Grant  1 personal observation and a list of sites in respect of  2 which he was informed.  The list of sites in respect  3 of which he was informed should not include the words  4 "at which the informants observed fishing" because  5 that's the hearsay aspect of it.  6 THE COURT:  Mr. Macaulay.  7 MR. MACAULAY: I was going to make a submission similar to Mr.  8 Goldie's.  Paragraph 17 is an example of the  9 difficulty we would have in cross-examining Mr.  10 Morell.  He says in that paragraph that -- he refers  11 to a map which is attached to the affidavit and says  12 that refers to "recording being done between 1979 and  13 1985 by myself or fishery technicians working under my  14 direction." It's clear that he has no personal  15 knowledge of a lot of these matters and we would run  16 up against a stone wall in cross-examination and he  17 probably couldn't answer a lot of the questions that  18 we might want to ask him.  19 THE COURT:  Grant.  20 MR. GRANT:  Just taking that example, first of all, my lord, as  21 is set out in the affidavit, there's -- there was some  22 timing and logistical problems and for that reason  23 there is schedules, maps, my friends haven't made any  24 reference to them, but Mr. Macaulay -- directly, but  25 Mr. Macaulay refers to paragraph 17, but he doesn't  26 refer to the section.  It's all divided by the section  27 of these maps and this is the section referring to map  28 A.  And then he -- in paragraph 15 Mr. Morell attests  29 to all of the fishing site numbers on Exhibit A in  30 which he has observed fishing.  In paragraph 16 on the  31 Skeena, it's a Skeena and Bulkley map, he refers to  32 those sites on the Bulkley River.  Then he says "The  33 sites I've not referred to in these two paragraphs are  34 sites where Indian fishing has been recorded by myself  35 or fisheries technicians".  36 Now -- so that's -- and I appreciate my friends  37 may say well, there's an argument with respect -- an  38 argument to be made, and at the time I had said there  39 was an argument to be made.  This affidavit discloses  40 what Mr. Morell has personally observed.  It discloses  41 those sites.  It also discloses sites which have been  42 recorded under his programme where fishing has  43 occurred.  That is where he -- persons working under  44 his direction recorded, but there is no ambiguity as  45 to which sites he observed and which sites somebody  46 else observed, so if my friends may say at the end --  47 and that was intentional.  If my friends say at the 18438  Submission by Mr.  Discussion  Grant  1  2  3  4  THE  COURT  5  6  MR.  GRANT  7  THE  COURT  8  9  MR.  GRANT  10  THE  COURT  11  12  MR.  GRANT  13  THE  COURT  14  15  16  17  MR.  GRANT  18  19  20  21  22  23  24  25  26  27  28  THE  COURT  29  30  31  32  MR.  GRANT  33  34  35  THE  COURT  36  MR.  GRANT  37  38  39  THE  COURT  40  MR.  GRANT  41  42  43  THE  COURT  44  45  46  47  end of the day "Well, those sites have to be  disregarded.", there's no difficulty in that.  That's  clear.  You're not contending for any exception to the  hearsay rule with respect to this evidence are you?  With respect to the evidence of --  Of what other informants have informed him except  for deceased informants.  That's right.  You're not contending for any blanket exception from  the hearsay rule are you?  Well, no, I mean, this is part of his --  Let me put it this way:  Do you think -- do you  agree I should take the affidavit in, but disregard  anything that is clearly hearsay and which doesn't  fall within the deceased person declaration exception?  Well, only to the -- the only extent to which I  think that may be relevant is the extent to which his  opinion is that it was -- if we put it in a sentence  or two, there was a lot of fishing on the Skeena  River.  He not only has his own personal observations,  but he has the reports of others to rely on that, but  that would of course be a foundation for this opinion.  But in terms of the sites that he observed, I think  that it is sufficient for your lordship to look at  those -- all of those paragraphs in which he has  observed sites.  I don't think your friends dispute that.  The  question is do I exclude and disregard entirely that  which is hearsay unless it fits an identifiable  exception?  Well, I believe you -- it would have to be argued  that it would fit an exception to the hearsay rule for  it to be relied upon.  All right.  Well, then the question is --  The difficulty -- I'll tell you, my lord, the  difficulty is that these maps have more numbers than  he refers to --  Yes.  -- on them.  So he has explained those numbers.  There are numbers of fishing sites where fishing has  been recorded as well, but it's not by him.  Well, the question I suppose I have to ask Mr.  Goldie and Mr. Macaulay is whether the affidavit is so  offensive that it has to be recast excluding the  inadmissible hearsay, or whether it can be safely  taken in on the basis that inadmissible hearsay will 18439  Discussion  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  be disregarded.  MR. GOLDIE:  I'm happy with the latter because the offending  paragraphs are clearly identified.  THE COURT:  All right.  MR. GRANT:  Yes, I —  THE COURT:  All right.  Well, then I don't see why it shouldn't  be taken in on that basis as the next exhibit.  What  is the next exhibit number?  THE REGISTRAR: Number 1081, my lord.  (EXHIBIT 1081: Affidavit of Stuart Rush with  amendments)  MR.  THE  MR.  MR. GRANT  THE COURT  MR.  THE  THE  GRANT  COURT  GRANT:  And I'll provide a copy for your lordship's own  later today.  COURT:  All right.  GOLDIE: I may add to this, but I can say now, my lord, that  paragraphs 5, 8, 17, 23, 24, 26 and 28 all fall within  the category that I have referred to as being hearsay.  I don't want my silence right now to be taken as  agreeing with that, my lord.  No.  All right.  Thank you.  Is it convenient to  take the morning adjournment?  Yes, there's two other brief matters.  All right.  REGISTRAR: Order in court. Court stands adjourned for a  short recess.  (PROCEEDINGS ADJOURNED FOR MORNING RECESS)  I hereby certify the foregoing to  be a true and accurate transcript  of the proceedings herein to the  best of my skill and ability.  Tanita S. French  Official Reporter 18440  Submissions 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  (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT)  THE REGISTRAR:  Order in court.  THE COURT:  Mr. Grant.  MR. GRANT:  Last Friday, if you recall, I had raised a question  regarding documents and you raised the question of  course of the broad number of documents.  I just want  to tell your lordship that I considered your comments  over the weekend with co-counsel that we will -- Mr.  Rush has delivered -- as well as the notice to admit  we had delivered last week regarding Mount Edziza, Mr.  Rush also delivered to my friends documents relating  to feast documents of Mr. Sterritt.  Those were  outstanding.  There are documents that are in both the Federal and  Provincial document list that we are aware of now that  relate to the Joint Standing Committee of 1928 and we  will be -- we, of course, have not led evidence on  that in a -- there may be some evidence that came from  our witnesses on that when it was raised on  cross-examination, but we will be -- we will be  seeking to tender those documents.  And also, as Mr.  Goldie said last Friday, the pre-emption -- our  request that other documents be put in at the same  time as some of their documents relating to certain  pre-emptions.  We would be asking to put in the  surrounding documents that we requested they put in.  Now, the final matter I wish to deal with --  GOLDIE:  Excuse me, does that mean that my friend is  admitting the pre-emption documents?  GRANT:  No, not in its present form.  We would ask for some  conditions of other documents going in with them.  GOLDIE:  But my friend is aware of our response to those  conditions.  I thought my friend just stated that he  would wish to put in what he terms surrounding  documents.  If the pre-emption documents of my friend go in  without the surrounding documents, and if my friend  has prove them in another way, they may well prove  them through a witness at which time we would have the  opportunity of leading the other documents through  that witness.  But if my friends find another way that  they wish to put them in without agreement because  they do not wish to put in all the documents that we  say are relevant, then we would be asking to put in  the surrounding documents.  THE COURT:  I don't think I can usefully deal with this, Mr.  MR.  MR.  MR.  MR. GRANT 18441  Submissions by Mr. Grant  1 Grant, except when we are specifically facing the  2 problem.  I don't know anything about what you are and  3 your friend have been talking about in this regard,  4 and I don't think I can respond to it.  5 MR. GRANT:  No.  I am only advising your lordship because you  6 raised the point that in terms of -- in terms of being  7 able to file documents later which I mentioned on  8 Friday that of course these would be principally  9 documents of which we are not aware.  I just wanted to  10 advise your lordship that there are these groups.  11 THE COURT:  Well, you've raised the question, your friends are  12 on notice, and we will face it when you are ready to  13 deal with it.  14 MR. GRANT:  Yes.  Now, the final point is regarding the  15 ambiguity as it appeared on Friday relating to the  16 60-day rule and under which we've been guided since we  17 commenced our expert witnesses.  That rule may have  18 two components, and on Volume 2 8 on June 2 6, 1987 page  19 1865 and 1866 it was initiated by Mr. Goldie.  And he  20 was asking that you enlarge the time for the delivery  21 of experts' reports and Mr. Rush intervened and said:  22  23 "MR. RUSH:  The application by my friends is to  24 widen the time from 30 days to 60 days,  25 being the time within which to deliver the  26 expert reports of the plaintiffs' experts.  27 We don't take issue with that.  What I want  28 to advise your lordship about--  29 THE COURT:  That's from the 30 —  30 MR. RUSH:  To 60 days.  31 THE COURT:  — to 60 days before the witness is  32 called?  33 MR. RUSH:  That's right.  34 THE COURT:  Yes.  35 MR. RUSH:  What we ask is the same consideration  36 from my learned friends.  There are two --  37 there are two reports which are identified  38 as summary reports that have been delivered  39 by the Provincial defendant.  The are of a  40 Dr. Greenwood and a Mr.  Williams.  And we,  41 of course, would like to have their reports  42 within a 60 day timeframe within --  43 THE COURT:  Before they are called?  44 MR. RUSH:  Before they are called.  45 MR. GOLDIE:  I agree with that, my lord.  4 6 THE COURT:  All right.  47 MR. RUSH:  And similarly with respect to a Mr. 18442  Submissions by Mr. Grant  1 Gruth, a report that's been filed by the  2 Federal defendant, that too is identified as  3 a summary and we take the same position with  4 respect to that.  5 MR. MACAULAY:  That's agreed.  6 THE COURT:  All parties.  All right.  Well, let  7 me ask something about that.  Is the  8 delivery of these reports to be taken as  9 conclusive notice that the witnesses will be  10 called?  11 MR. RUSH:  That they would be called?  12 THE COURT:  Yes.  13 MR. RUSH:  I haven't considered that point as  14 yet."  15  16 And then the court raises whether it should have --  17 you should have the reports at the same time.  Now,  18 with respect to Dr. Greenwood and Mr. Williams and Mr.  19 Gruth, we have nothing further than what we had on  20 June 26, '87.  So if my friend from his comments on  21 Friday is suggesting that, A, he is not calling Mr.  22 Greenwood or Mr. Williams, or that their summary is  23 their final report that is one issue to be clarified.  24 But in any event, in June of '87 it was understood  25 that we only had summaries.  And that is the first  26 phase of it which was an extension of the Evidence ACT  27 rule.  28 Now, what happened subsequently, my lord, is set  29 out in a series of correspondence between counsel.  It  30 commenced in June of 1988 when Mr. Goldie wrote to  31 myself -- or to Mr. Rush and a copy to myself and  32 stated regarding the expert evidence reports, raising  33 the same issue that of course your lordship had  34 raised.  And he said in the middle paragraph:  35  36 "Preparation for cross-examination in  37 respect of all these subjects is and will be  38 a large undertaking; more importantly, it  39 would be a wasted effort if evidence in some  40 areas is not to be called.  The potential  41 for delay in concluding this case in the  42 event our preparation is misplaced is  43 evident.  44 Accordingly, would you be good enough now to  45 inform us which of your experts and their  46 reports will not be tendered at trial in  47 order that we may avoid the time of 18443  Submissions by Mr. Grant  1 unnecessary preparation."  2  3 On June 30th, Mr. Plant wrote regarding the seven  4 expert reports that we were -- these are the  5 biophysical reports that you later heard evidence on,  6 and we listed them in July of -- in June 28th.  And on  7 the last paragraph of the first page, he says:  8  9 "Do to seven reports listed in your letter  10 constitute the first part of your expert  11 evidence for the fall term?  If not, I ask  12 that you advise us prior to July 8 in order  13 that we may coordinate the ability of our  14 advisors."  15  16 Now, there was other correspondence.  But on September  17 7th, Mr. Plant sent:  18  19 "A draft submission in respect of trial  20 scheduling which we intend to make at or  21 shortly after the resumption of trial on  22 Monday next."  23  24 And then the -- the draft is attached.  And the first  25 paragraph he suggests that if Provincial defendants  26 are going to seek the court's assistance to minimize  27 the risk of delays and disruptions during the  28 presentation of the balance of the Plaintiffs' case.  29 He sets out a sequence of correspondence including  30 that to which I have referred.  And then he states --  31 he responds in paragraph 9 to a letter -- quotes a  32 letter from myself of July 4th where I refer:  33  34 "As you know there is a sixty-day rule and  35 we shall provide you with the names of the  36 expert witnesses whom we intend to call  37 within the time order by the Court."  38  39 So as of that time in July -- this is of course while  40 Mr. Sterritt was on the stand, my lord.  So at that  41 time in July we were operating under the assumption  42 that the 60-day rule operated.  Then he says:  43  44 "The 'rule' referred to by Mr. Grant is a  45 consent order made in June 1987 pursuant to  46 section 11(1.1)(d) of the Evidence Act.  In  47 the only instance of its application to day 18444  Submissions by Mr. Grant  1 (namely, in the case of Mr. Sterritt) it was  2 abrogated at the request of the Plaintiffs."  3  4 Of course, you recall Mr. Sterritt was initially  5 introduced as a lay witness and then an expert  6 witness.  Now, then in paragraph 13 he says --  7 paragraph 13(a):  8  9 "In the result, sixteen months after the  10 commencement of trial counsel for the  11 Province are in the following position:  12 (a)  we do not have any idea of the sequence  13 of the remaining Plaintiffs' lay and expert  14 witnesses.  15 (e)  lastly, if the 60-day order were  16 adhered to there would be no expert evidence  17 (apart from Mr. Sterritt) until October 25,  18 which is 60 days after August 26."  19  20 And then on paragraph 15 the draft says;  21  22 "The Province therefore seeks directions as  23 follows:  24 (a)  disclosure prior to September 16 of the  25 order of the remaining Plaintiffs'  26 witnesses."  27  28 Now, in response to that, I responded to Mr. Plant two  29 days later on September 9th.  And I state:  30  31 "We are concerned about your raising  32 schedule matter in the form of a Draft  33 Argument to the Court.  If you had expressly  34 laid out your concerns as clearly as you did  35 in your draft applications for directions we  36 may well have been able to respond to them  37 earlier.  38 In any event, I wish to confirm to you the  39 status of the witness schedule for the next  40 sixty days and the length of time for each  41 of these witnesses.  Of course, it is  42 impossible for us to accurately assess the  43 timing of each of these witnesses as it  44 depends to a great extent on the amount of  45 cross-examination of Mr. N.J. Sterritt."  46  47 And as you may recall, that cross-examination took 18445  Submissions by Mr. Grant  1 longer than had been -- was anticipated.  It was at  2 least until September 9th.  Then the next -- so  3 witnesses are listed and you can -- and on September  4 14th, Mr. Plant — Ms. Sigurdson on Mr. Plant's behalf  5 wrote a letter in response, and he talks about the  6 expert reports.  And then he says at the bottom of  7 page 2:  8  9 "We also put you on notice of our position  10 that the sixty day order does not permit you  11 to tender the evidence of Messrs. Rigsby and  12 Kari, it had been our understanding that  13 this was a summary, not a full report.  As  14 your letter of September 9 constitutes the  15 first notice to us that you have delivered  16 the full report, we assume the sixty day  17 rule applies and their evidence will not be  18 tendered until November 8."  19  20 Now, on October 21st, Mr. Rush wrote relating to this.  21 I won't refer to that, my lord, that was with respect  22 to Mr. Daly.  The next excerpt I have is from volume  23 132, November 16, 1988, line 14, my lord.  24  25 "MR. WILLMS:  I suppose the short of it, my  26 lord, is that -- that three on, one off  27 starting on January the 9th --  2 8 THE COURT:  Yes.  29 MR. WILLMS:  — is perfectly acceptable to Her  30 Majesty so -- so long as we get notice from  31 my friends of who the witnesses are.  And I  32 should say that the three witnesses that my  33 friend has listed are the only ones that  34 we've had notice of within the 60-day rule,  35 and I'm anticipating getting some notices  36 fairly shortly on some other witnesses to  37 find out who's next or who fills in where."  38  39 On November 21st, that is November 16th, Mr. Willms  40 writes to counsel for the Plaintiffs, and he states at  41 the bottom of that letter:  42  43 "We would appreciate being notified at your  44 earliest convenience, and no later than  45 sixty days prior to February 6, 1989, the  46 name or names of the witness(es) who will be  47 called the week of February 6." 18446  Submissions by Mr. Grant  1  2 Now, finally on March 28, 1989, there were submissions  3 made by Mr. Rush and Mr. Goldie at page 13733 of the  4 trial transcript.  And this was with respect to --  5 there was further expert evidence in the 120 days and  6 the 60 days.  Now, Mr. Goldie raised at line 5:  7  8 "MR. GOLDIE:  Well, my lord, there's a  9 possibility of one more expert.  The reason  10 that I say possibility is that it was a  11 matter that Mr. Robertson was looking after,  12 and I have to -- I'm in the process of  13 reviewing the memoranda that he had prepared  14 with respect to that."  15  16 Then he referred to a death in the family.  17  18 "THE COURT:  I think they want to fix or have  19 some certainty in the timeliness of  20 disclosure of the identity and the burden of  21 the evidence to be given by any experts that  22 you're going to -- that are going to be  23 called.  24 MR. GOLDIE:  Well, I had intended to observe the  25 60-day rule, there's no doubt about that.  26 The idea of now extending to 120 has, so far  27 as I can see, no reasonable purpose to it,  28 especially having regard to the advice we  29 received this morning, the plaintiffs may  30 not proceed beyond the end of May.  31 MR. RUSH:  Well, I think my friend has not  32 understood or I've not made clear, probably  33 the latter, what it is I'm asking for.  I  34 think the 60-day rule about diclosures of  35 who the witnesses are and when they will be  36 called for present -- presently disclosed  37 expert opinions should remain in place for  38 the defendants, as it has for the  39 plaintiffs —"  40  41 THE COURT:  Who is saying that?  42 MR. GRANT:  Mr. Rush is.  43  44 "-- but my request is in respect of an  45 expert opinion that we have not had any  46 notice of to this point, and it's that type  47 of opinion, and when my friend says there 18447  Submissions by Mr. Grant  1 may be one more, that we wish 120-day notice  2 for, and if there are documents that are  3 fresh documents contained or referenced in  4 that report or opinion, then I think those  5 should be disclosed at the same time.  So  6 I'm trying to distinguish between those two  7 types of opinions and their disclosure  8 times.  9 THE COURT:  Well, this witness,  this mystery  10 witness wouldn't be called early in your  11 case, would it, Mr. Goldie?"  12  13 And there is some exchange there.  And then your  14 lordship went on to say at page 13734, line 11 and  15 following:  16  17 "THE COURT:  Well, in veiw of the length of  18 notice that has been given, the reports of  19 the plaintiffs' experts, I must say I tend  20 to favour 120 days, but I don't think it  21 is -- we're at the 120-day threshold or even  22 close to it yet, and I think perhaps the  23 matter should be deferred for a few weeks  24 and perhaps Mr. Goldie will then have made a  25 decision on whether this witness should be  26 called, and then we'll speak to it again.  I  27 think the matter should be spoken to again.  28 Is two weeks away too near, Mr. Goldie?  29  30 And then it is dealt with there.  And then Mr. Goldie  31 did disclose it subsequently that this is the summary  32 opinion report.  33 MR. GOLDIE:  I'm sorry?  34 MR. GRANT:  The summary opinion of I believe Dr. Far —  35 MR. GOLDIE:  It is the full report.  36 MR. GRANT:  Okay.  Thank you.  In any event, my lord, what  37 happened when you look at the sequence is that from  38 last June of '88 the 60-day rule was the extension of  39 Section 10 and 11 of the Evidence Act which was made  40 by consent in June of '87.  41 In June of '88 the defendants were in exactly the  42 position we're in today.  They were saying:  We need  43 to know the order so that there is no delays in trial  44 and these are the problems.  And there was  45 correspondence over the summer, and it was apparent  46 that Mr. Sterritt's evidence would take longer.  And  47 on September 7th in the draft argument that Mr. Plant 18448  Submissions by Mr. Grant  1 prepared and sent to us he proposed that he was going  2 to seek an order specifically on that point.  That  3 order -- that application to seek such an order was  4 made redundant because we appreciated the position of  5 the defendants and we co-operated by providing that.  6 And we dealt with the 60-day notice as notice not only  7 that there is a body of expert opinion reports or  8 summaries of witnesses, but the 60-day notice would  9 apply as to who the witnesses were.  And the argument  10 made by the defendants, and with which we agreed, was  11 that how could they have their experts or their people  12 respond to these expert opinion reports.  13 Now, you've seen from this sequence that right now out  14 of the expert opinion reports two of them from the  15 Provincial defendants Williams and --  16 THE COURT:  Greenwood.  17 MR. GRANT:  Yes.  Are summaries.  So we don't have the full  18 opinion reports.  But what is more important is that  19 if the defendants intend to call an expert witness or  20 possibly will call an expert witness on September the  21 5th that the same sense of fairness that applied to  22 them should apply to us, and we've been operating that  23 way.  And we have, with all due respect to Ms.  24 Koenigsberg, we have, except with respect to Mr.  25 Sterritt, endeavored to provide notice well ahead of  26 time as to who the witnesses were.  And that system  27 has operated continuously since the September 9th  28 letter from myself and thereafter.  And, of course,  29 you may recall that I have advised the court -- we  30 have advised the court as we have gone along as well.  31 But if the defendants intend to call an expert  32 witness on September 5th, it is not at all  33 satisfactory that we have to guess which of their  34 expert witnesses that they provided opinion reports  35 for that they should be called for.  And we understood  36 as your lordship commented even in June of '87 that  37 the way of dealing with this was the same both ways.  38 But on a review of it, I see why -- I do see why my  39 friends say, well, there was no order of naming and  40 that appears to be the case because when they were  41 prepared to make their submission on September 9, '88  42 we agreed.  So without intervention to your lordship,  43 we concurred with that.  And we say that the same  44 level of fairness should apply to make the playing  45 field somewhat level.  4 6    THE COURT:  All right.  Thank you.  Mr. Goldie.  47    MR. GOLDIE:  Well, my lord, I take it that this puts to rest the 18449  Submission by Mr. Goldie  1 question of 120 days.  2 THE COURT:  I think we are past that now.  3 MR. GOLDIE:  Yes.  I will deal — I intended to deal in part  4 with order in my opening, but perhaps I can make a few  5 comments at the present time.  I think my friends are  6 mistaken when they say they do not have more than two  7 summaries from the Provincial defendant.  My  8 recollection is that they have three plus a report  9 making four in all, and that is the total at the  10 present time of the expert witnesses that we intend to  11 call.  So far as those -- so far as the operation of  12 this rule is concerned, it had been my understanding  13 that if the -- if the party calling the witness  14 decided that there would not be a report filed under  15 Section 10, but that the witness would be called under  16 Section 11 that the summary, together with the  17 underlying facts, would be the appropriate notice.  18 And I believe that was the case with respect to Dr.  19 Lane.  We had a summary and she was called and gave  2 0 viva voce evidence.  21 Dr. Farley's report was filed I think about May  22 10th in time sufficient for the 60 days to be -- allow  23 for him to be called today.  That was my -- had been  24 my original intention.  My friends found that to be  25 inconvenient, and he will not be called until some  26 time in the fall.  I gather -- I may be wrong in my  27 understanding of this, but I gather one of the  28 concerns that my friends have is what the order will  29 be.  I will deal with that in a little greater detail,  30 but I can say that so far as the experts are concerned  31 our intention is to call Dr. Farley first, followed by  32 Dr. Greenwood because that is the logical way of  33 dealing with the law of proclamation in that order.  34 Second --  35 THE COURT:  You are talking now about September?  36 MR. GOLDIE:  Yes.  Well, it won't be September 5th.  It will be  37 some time later in September because I have other  38 witnesses to deal with.  And as I said, I will come to  39 that in my opening for September 5th.  4 0    THE COURT:  All right.  41 MR. GOLDIE:  But the order, that's what I am talking about now.  42 The order would be Dr. Farley, Dr. Greenwood, Mr.  43 Williams.  And then there is a question with respect  44 to Dr. Robinson.  And I say a question because the --  45 your lordship's rulings on the submissions made by Ms.  46 Mandell will have a bearing on Dr. Robinson's report,  47 together with your ruling on an argument you've yet to 18450  Submission by Mr. Goldie  1 hear which deals with the use of treatises.  And that  2 is one of the things that has been left open by my  3 friends and which we would like to see concluded as  4 soon as possible.  I don't really know what else my  5 friends are concerned about.  6 THE COURT:  Well, the two that I identified, one is whether the  7 reports or the summaries that they have now are all  8 they are going to get.  For example, --  9 MR. GOLDIE:  Yes.  10 THE COURT:  -- if you are going to call these four witnesses  11 then summaries are sufficient.  12 MR. GOLDIE:  I plan to call them all.  But — well, there is a  13 question with respect to Dr. Robinson.  I plan to call  14 Dr. Farley, although we have filed a report.  I plan  15 to call Dr. Greenwood.  Whether he will file a report  16 is -- depends upon your lordships' ruling on the  17 objections taken to the reports of Dr. Daly, Galois  18 and Ray.  And --  19 THE COURT:  Dr. Daly?  20 MR. GOLDIE:  Dr. Galois is the primary one.  21 THE COURT:  Yes.  22 MR. GOLDIE:  My present feeling is that we should file his full  23 report, and if there are parts of it which cannot be  24 referred to by virtue of your lordship's ruling, well,  25 we will just have to deal with that on a viva voce  26 basis.  But I can say now in answer to the questions  27 that not withstanding the fact that there are -- that  28 there are at least two reports filed that the  29 witnesses, subject to my comments about Dr. Robinson  30 will be called.  31 THE COURT:  The other issue that your friend identified was the  32 order in which these witnesses will be called, and I  33 take it that this is the order?  34 MR. GOLDIE:  Farley, Greenwood, Williams.  35 MR. GRANT:  And when, my lord?  36 MR. GOLDIE:  Well, I will deal with the when business which  37 depends, in part, on my friend's reaction to  38 outstanding notices to admit when I deal with my  39 opening.  4 0 THE COURT:  All right.  Thank you.  41 MR. MACAULAY:  My lord, I understood Mr. Grant to say this  42 morning just before the adjournment that, quite apart  43 from the question of the documents, additional  44 documents that he wants to put in if the Province puts  45 in certain pre-emption documents, and that would be  46 really in the way of reply if you categorize the  47 thing.  He has another collection of documents that he 18451  Submission 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  wants to put in with his case.  Now, we are coming to the end of the plaintiffs'  case.  The plaintiff is now giving notice that they  will be putting in, I heard for the first time this  morning -- I may have missed something on Friday, but  I heard for the first time this morning it has to do  with the Senate House of Commons Joint Committee of  1927.  Those, although I don't -- I am not going to  submit that the Province should not start its case  before that is done.  That is part of the plaintiffs'  case, not part of their reply and it should be done  properly.  When I say properly, before the adjournment  of July.  THE COURT:  Well, I can only deal with it when it arises.  MR. MACAULAY:  Well, my lord, if it comes in September the  Province will be finishing their case and we will be  about to start.  Then we will be shoveling in more  evidence.  I don't think that is something they should  be allowed to do.  Well, I'm sure Mr. Grant and Mr. Rush will be  prepared to indicate whether they can fix an outside  date within which this further material will be  tendered, can you, Mr. Grant?  I would -- what I propose is that we would provide  my friends by no later than the beginning of September  session what the documents are.  What we are doing  is -- what I am specifically saying is reserving the  right.  We did not, of course, raise initially -- it  is in the defence case this whole subject of Joint  Committee.  But given what you have said, and out of  an abundance of caution and rather than waiting to see  how the defence felt about that, we know of the  existence of some documents at that point should be  before your lordship and that becomes --  COURT:  You don't think you can give your friends a list of  those before we adjourn this month?  GRANT:  I would agree that we do it properly.  I will  endeavour to do that.  COURT:  Yes.  GRANT: They are all on our friends' lists. They are their  documents. And the only -- and maybe by the end of  the day when Mr. Goldie does get to his opening. But  what I was dealing with and what I wish to deal with,  my lord, is the question that it is crucial for us to  have 60-days notice of who the expert witness is so  that we can deal with our experts and that is exactly  the issue raised by them.  I would ask that that be  THE COURT  MR. GRANT  THE  MR.  THE  MR. 18452  Submissions by Mr. Rush  1 part of the 60 day.  2 THE COURT:  I am going to ask Mr. Goldie to speak to that again  3 after he makes his long-awaited opening.  4 MR. GRANT:  I believe that that covers the points that I had  5 listed the outstanding issues on Friday.  And Mr. Rush  6 just wishes to deal with one point before Mr. Goldie  7 starts his opening.  8 MR. RUSH:  My lord, I suppose I am addressing you on this  9 subject because at the end of Friday reference was  10 made to the expert opinion report of Dr. Albright.  I  11 want to raise again this question of what appears to  12 be a difference between parties as to the effect of  13 the filing and tendering of expert opinion reports  14 with what appears to be the defendants' position that  15 there are outstanding objections in respect of those  16 expert opinion reports.  And as I see the plaintiffs'  17 position, we say those are filed and tendered and are  18 evidence in the case.  My friends say those are filed  19 and tendered and evidence subject to their objections.  20 And that raises, I think, two pressing issues in  21 my mind.  One is the way in which these objections and  22 the effect of the filing of these reports is to deal  23 with -- is to be dealt with.  And, secondly, the  24 timing.  And I here raise this more to deal with the  25 issue of process.  I think it has to be clear among us  26 that the plaintiffs' view is these are -- these  27 reports are filed and are evidence in the case.  Yet,  28 at the same time, I can see that some of the reports  29 or some aspects of either the reports or the documents  30 on which those reports rely were filed subject to  31 objection.  32 Now, from my perspective, my lord, it should be  33 clear that we have a process to deal with these  34 objections so that these reports are part of the  35 outstanding issues to be filed as part of the  36 plaintiffs' case or that the objections are raised as  37 part of the arguments of my friends in the course of  38 their closing submissions.  Now, I take it that there  39 is not necessarily one way of dealing with all of  40 these so-called objections.  41 But what I do say, my lord, is that at least I  42 understand from Mr. Willms' submission Friday and Mr.  43 Goldie's today that at least in regard to certain  44 documents of Miss Albright's report that they wish to  45 see an argument on those documents.  I see that there  46 are some outstanding arguments that need to be made  47 vis-a-vis those reports and those documents that 18453  Submissions by Mr. Rush  1 underlie those reports.  2 And my recommendation, my lord, is that you assist  3 in giving some direction as to the timing of these  4 arguments if my friends perceive that these are  5 matters that are of some urgency to their case.  And,  6 secondly, to the determination of the issue of whether  7 these are to be -- intended to be left by the court  8 and by my friends to their closing submissions.  And,  9 if not, if that is not so in terms of my friends'  10 understanding then I would suggest that we establish  11 some sort of schedule by agreement to deal with each  12 of these documents in turn, and to resolve those  13 outstanding objections and to make it clear that these  14 objections, once resolved, clarify and articulate for  15 all of us the status of the reports and the underlying  16 documents.  17 THE COURT:  Is there a list of these outstanding matters?  18 MR. RUSH:  Well, we asked -- there is a difference again between  19 our friends and ourselves on which are those documents  20 that they consider to have objections about.  And on  21 the 7th of July we asked for a listing from Ms.  22 Koenigsberg concerning this.  It seems to me that  23 that's the way to go.  If my friends have something in  24 mind, and certainly I can see by reference to some of  25 the transcript accounts of the course of events that,  26 yes, I can see that there are arguments that need to  27 be made.  But I am not sure that we are ad idem on all  28 of these reports.  I feel that we need to have  29 clarified what is outstanding on these reports and  30 then deal with it in some way.  31 THE COURT:  I agree with you, Mr. Rush.  I agree that these  32 matters should be resolved.  Do defence counsel have  33 anything to say in this regard?  34 MR. GOLDIE:  Any convenient time?  35 THE COURT:  Yes.  36 MR. GOLDIE:  But before we adjourn.  37 THE COURT:  Yes.  Well, I am in counsels' hands.  38 MR. GOLDIE:  I would like to see the schedule of lay witnesses  39 dealt with before we adjourn.  40 THE COURT:  Well, I think that we should — counsel should take  41 the rest of this week to think about it and take the  42 Monday morning to decide how long the argument might  43 require and submissions might be required.  We will  44 schedule a time for a week from today, or we will make  45 an appointment with each other to do it during the  4 6 week commencing a week today.  We will fix that time  47 at the opening next Monday morning. 18454  Opening by Mr. Goldie  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR.  THE  MR.  THE  MR.  THE  MR. RUSH  THE COURT  MR.  RUSH:  Your lordship is saying that we will fix a date for  when this is going to happen a week from today?  COURT: Yes. And it will have to be during that week, too,  I should think, if we could possibly do it unless you  want to come back the following week and do it on the  following Monday.  GOLDIE:  Well, I am concerned about not finishing these  witnesses before we adjourn, my lord.  COURT:  Well, that's why I am saying we will do it next week  if it can be done without compromising that priority.  GOLDIE:  Yes.  COURT:  If not, we will have to find another time.  But it  will have to be soon.  Yes, I think we would be gratefully assisted in some  clarification from our friends on the issues that they  see that they have outstanding objections in those  reports.  And, my lord, subject to the reservation and  outstanding issues, I think that closes the  plaintiffs' case.  All right.  Well, Mr. Rush, I must say that from  time to time I have been reminded of Napoleon's  musings on the opening of the second day of the Battle  of Waterloo when he wondered if the enemy would ever  close -- would ever show their backs.  I am sure your  friends are wondering if you and your friends would  ever show your backs, but you have reached that stage  without literally fitting the description, I'm sure.  It is good that we have at least reached this  milestone.  Mr. Goldie, do you want to start?  GOLDIE: Yes, my lord. My lord, I do not propose opening  the defendant's case at any length. And that's not  because of the fact that the plaintiffs' case still  has a number of loose ends. It is because I don't  think there is any doubt about anybody -- in anyone's  mind here as to what the issues in the case are all  about.  Your lordship may recall that some two years ago,  and to correct what appeared to me to be a  misapprehension of the Province's case I outlined some  of its aspects in my comments on May 13, 1987.  And,  my lord, these are found in Transcript Volume 3 at  pages 144 to 148.  At that time I touched on the  consitutional change in responsibility for Indian  matters which took place when British Columbia joined  the Union on July 20, 1871.  Prior to that date, of course, the Government of  the Colony of the British Columbia was clothed with 18455  Opening by Mr. Goldie  1 all the means of internal self-government subject only  2 to the powers of reservation and disallowance  3 exercised by the paramount authority of the Imperial  4 Government.  5 I noted that when British Columbia became a  6 Province of Canada these powers of reservation and  7 disallowance were vested in the Dominion.  And what is  8 possibly one of the most important aspects of the case  9 in the constitutional sense, British Columbia lost the  10 competence to enact legislation in respect of Indians  11 as Indians.  And that is, of course, as a result of  12 section 91 of the Constitution Act of 1867 exclusive  13 authority with respect to Indians and lands reserved  14 for Indians was vested in Parliament.  15 There have been suggestions from time to time that  16 British Columbia is somehow unique in not having  17 concluded land cession treaties with Indian peoples in  18 the province.  That uniqueness, so-called, is simply  19 not so.  20 By way of illustration, my lord, I have put up on  21 the board, and it is rather small scale to observe,  22 but it is a map produced by the Department of Indian &  23 Northern Affairs in 1970 and revised in 1977.  The map  24 purports to show the Indian treaties and the Title  25 Block States Revised Map, October 1977.  It goes on to  26 say that:  27  2 8 "No attempt has been made to chart the  29 Vancouver Island treaties on a map of this scale  30 nor the maritime peace and friendship treaties."  31  32 So apart from the Vancouver Island treaties,  33 so-called, that map purports to show the land cession  34 treaties in Canada as they were in 18 -- 1977.  The  35 map shows that there are very large areas of Canada  36 which -- in respect of which no treaties have been  37 concluded.  The whole of modern Quebec, the Maritimes;  38 namely, Nova Scotia, New Brunswick, Prince Edward  39 Island, by far the greatest part of the Yukon  40 territory, only a small portion in the east being  41 included in Treaty 8.  And, in fact, those -- the  42 total land surface and a good part of the Northwest  43 Territories were never the subject matter as of that  44 date of land cession treaties.  And, indeed, the only  45 pre-Confederation land cession treaties appear to be  46 combined to southern Ontario.  47 Now, of course, British Columbia has been 18456  Opening by Mr. Goldie  1 constitutionally incompetent to make such treaties  2 since 1871.  3 So I simply say that the constitutional  4 observations made in May 1987 are as relevant now as  5 they are then.  And they continue, as I say, to be  6 relevant.  They are particularily relevant when, in  7 the intervening period of two years we come to  8 consider the nature of the plaintiffs' claims.  9 It was then and is now a claim of ownership and  10 jurisdiction.  Whether it includes a claim for use and  11 occupation in the sense of the claim put forward in  12 the Calder case has not been clarified by the  13 plaintiffs and remains a matter of argument.  And your  14 lordship may recall that when this was raised I  15 submitted that the present Statement of Claim amended  16 as it now is, is one for ownership and jurisdiction  17 and does not clear up the claim that was made in  18 Calder.  19 I need not enlarge upon the difference between a  20 claim of ownership and jurisdiction which, if it's  21 successful to the degree contemplated in the prayer  22 for relief, would remove substantially all, if not  23 all, control of the lands and its resources in the  24 claims area from the Province and vest that control in  25 the plaintiffs.  26 My lord, touching very quickly on the question of  27 the order of the defendant's case and the nature of  28 the defendant's case, it is in the public interest  29 that this trial be brought to a conclusion in a  30 reasonably expeditious way.  There are a number of  31 other lawsuits awaiting the outcome of the case and  32 the sooner your lordship is enabled to consider the  33 evidence and to hear counsels' final submissions the  34 better.  35 Now, to this end we have endeavored to reduce in  36 number the so-called lay witnesses and we are  37 proposing that some evidence be proven by affidavit.  38 As your lordship and my friend knows we propose in  39 the next two weeks to call four lay witnesses whose  40 evidence is primarily directed to the question of  41 present-day ownership and jurisdiction.  42 I propose that two other witnesses, lay witnesses,  43 give their evidence by affidavit and that they be  44 cross-examined in the month of August.  I have sent  45 the affidavits of these two witnesses to my friends,  4 6 and I am hopeful that we can determine whether this  47 could be done by consent.  Both of these witnesses 18457  Opening by Mr. Goldie  1 live in the north and the cross-examinations would  2 take place in Smithers.  And after my friends have had  3 an opportunity of responding to this, we can advise  4 your lordship.  I have indicated earlier that we would  5 be calling at least three expert witnesses.  And I  6 won't repeat what I have said with respect to that.  7 But before those expert witnesses are called, I  8 want to clear up the question of the alienation maps  9 and the underlying documents that your lordship has  10 already been -- has already directed be proven by  11 affidavit including the custodial affidavits that your  12 lordship directed be filed.  Now, five of these  13 custodial affidavits were filed in July of 1988, and  14 there was cross-examination with respect to one.  15 There could have been others, but I -- it was not  16 convenient to proceed with others.  But I am going to  17 ask my friends to re-examine that position to see if  18 we can deal with some of those in August.  We expect  19 to file and serve additional custodial affidavits  20 before the end of July, and we will be asking for  21 directions with respect to those.  Now, there are --  22 there is an outstanding notice to admit with respect  23 to the alienation documents, and after that has been  24 responded to we can come back to that.  25 There are two other outstanding notices to admit,  26 one with respect to the food fishing permits and the  27 other with respect to the trapline files that were  28 filed and marked as Exhibit 995-41A For Identification  29 on Mr. Brody's cross-examination.  That is enough to  30 indicate to your lordship that the evidence of  31 witnesses required to prove those matters is still at  32 large.  33 But regardless of how we resolve those, I intend  34 to start in September with evidence from two witnesses  35 who will deal with the evolution of the trapline maps.  36 And I do not anticipate that the -- that any expert  37 will be called before that is done.  I indicated in my  38 comments this morning earlier that your lordship's  39 rulings on the arguments presented by Mr. Adams and  40 Ms. Mandell have a bearing on the presentation of the  41 case.  42 Turning to the nature of the defendant's case in a  43 very summary way, the plaintiffs opening in May of  44 1987 suggested in some respects that the Province's  45 principal defence was acquiescence or waiver on the  46 part of the plaintiffs.  This is not so.  I spoke in  47 May of 1987 to correct at least in part that 1845?  Opening by Mr. Goldie  1 misapprehension.  2 What will be submitted is that there never was in  3 British Columbia prior to July of 1871 any concept of  4 native title, aboriginal title, what have you,  5 analagous to the proposition that was put forward here  6 of ownership and jurisdiction.  7 What was recognized and protected was an interest  8 of the native peoples of British Columbia in their  9 occupied village sites and where they had adopted an  10 agrarian way of life as in the southern interior,  11 cultivated fields and as much land as they could  12 tilland enjoy the rights or was required for their  13 support together with the free exercise of fishing the  14 lakes and rivers and hunting over all unoccupied Crown  15 lands in the Colony.  16 Well, my lord, those last few words are in part a  17 quotation from a despatch of Governor Douglas which  18 has been referred to in evidence.  It was his despatch  19 of October 9, 1860.  He was reporting on a tour of the  20 province that he made which took him from Hope to  21 Lillooet to Lytton and then down to Rock Creek.  He  22 reported that in both -- in many places on his journey  23 he met with Indians, large numbers of whom had  24 gathered at Cayoosh, as Lillooet was then known as,  25 and then later on beyond -- at Lytton and beyond.  And  26 he said in paragraph 35 of his despatch:  27  28 "I had an opportunity of communicating  29 personally with the native Indian tribes,  30 who assembled in great numbers at Cayoosh  31 during my stay.  I made them clearly  32 understand that Her Majesty's Government  33 felt deeply interested in their welfare, and  34 had sent instructions that they should be  35 treated in all respects as Her Majesty's  36 other subjects; and that the local  37 magistrates would attend to their  38 complaints, and guard them from wrong,  39 provided they abandoned their own barbarous  40 modes of retaliation, and appealed in all  41 cases to the laws for relief and protection.  42 I also forcibly impressed upon their minds  43 that the same laws would not fail to punish  44 offences committed by them against the  45 persons or properties of others.  46 I also explained to them that the  47 magistrates had instructions to stake out, 18459  Opening by Mr. Goldie  1 and reserve for their use and benefit, all  2 their occupied village sites and cultivated  3 fields and as much land in the vicinity of  4 each as they could till, or was required for  5 their support; and that they might freely  6 exercise and enjoy the rights of fishing the  7 lakes and rivers, and of hunting over all  8 unoccupied Crown lands in the colony; and  9 that on their becoming registered free  10 miners they might dig and search for gold,  11 and hold mining claims on the same terms  12 precisely as other minors:  in short, I  13 strove to make them conscious that they were  14 recognized members of the commonwealth, and  15 that by good conduct they would acquire a  16 certain status, and become respectable  17 members of society.  They were delighted  18 about the idea, and expressed their  19 gratitude in the warmest terms."  20  21 That was the same message that he conveyed to native  22 groups much closer to the American border who were  23 deeply concerned about what was going on in the United  24 States.  25 Now, that aspect of the Colony's policy was stated  26 by Governor Musgrave some nine years later in a letter  27 written in February 1870 when he said, and I quote:  28  29 "The policy which has been pursued hitherto  30 of treating the Indians as British subjects  31 under the same protection and titled to the  32 same privileges and incurring the same  33 liabilities as the white population."  34  35 Of course, what the Governor referred to as affairs of  36 administration included in a number of instances  37 exceptions to that such as the law prohibiting the  38 sale of liquor to Indians.  But whatever may be and  39 whatever one may think of these exceptions to the --  40 in the administration of that policy, it was wholly  41 inconsistent with a claim of ownership and  42 jurisdiction which is -- has been properly regarded or  43 compared to a claim in fee simple.  And, in my  44 submission, that if there ever was such a claim it was  45 extinguished by July 20, 1871.  46 Now, that word extinguishment may suggest to your  47 lordship that we are going to embark upon a 18460  Opening by Mr. Goldie  1 revisitation of Calder, and there are some significant  2 differences:  First, the court will have the benefit  3 of the observations of the judges of the Supreme Court  4 of Canada in Calder.  5 Secondly, the documentary material to be laid  6 before you will be far more exstensive on the question  7 of extinguishment than was available at the time that  8 Calder was argued.  I shouldn't say available.  All of  9 this material has been reposing in the archives.  All  10 that was considered necessary by the parties at that  11 time to deal with the question of extinguishment.  12 Third, there will be exstensive documentation  13 relating to the modification of aboriginal title if it  14 survived 1871.  It will be recalled that the Province  15 conceded in Calder that nothing had been done since  16 Confederation to extinguish aboriginal right or title.  17 For instance, no consideration was given in Calder to  18 the effect of Provincial legislation of general  19 application.  20 Fourth, there was no attempt in Calder to examine  21 closely the effect of the Terms of Union,  22 particularily Term 13.  The events which took place  23 between 1871 and 1938, when the Province conveyed  24 title to Canada of Indian reserves in British  25 Columbia, are relevant both to the defendce and to the  26 counterclaim and the documentation is exstensive.  27 My lord, the number of events which have taken  28 place since 1871 have already been the subject matter  29 of evidence in the trial.  30 The change effected by the Terms of Union will be  31 examined in light of the official documents of the  32 day; the long wrangle between the Province and the  33 Dominion primarily over the size of reserves and over  34 the so-called reversionary issue.  I parenthetically  35 note that B.C.'s interest in reserve lands in terms of  36 a reversionary interest was recognized in Orders in  37 Counsel in both British Columbia and Canada in the  38 year 1875.  That issue -- the issue which arose over  39 which it encompassed was not resolved until 1912 when  40 Sir Richard McBride and Mr. McKenna reached an  41 understanding on the scope of the Royal Commission.  42 My lord, would this be a convenient time?  4 3    THE COURT:  Yes.  44  45  46  47 18461  Opening by Mr. Goldie  1 THE REGISTRAR:  Order in court.  Court stands adjourned until 2  2 o'clock.  3 (PROCEEDINGS ADJOURNED AT 12:30)  4  5  6 I hereby certify the foregoing to  7 be a true and accurate transcript  8 of the proceedings herein to the  9 best of my skill and ability.  10  11  12    13 LISA FRANKO, OFFICIAL REPORTER  14 UNITED REPORTING SERVICE LTD.  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 18462  Opening by Mr. Goldie  1 (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT)  2  3 THE REGISTRAR: Order in court.  4 THE COURT:  Goldie.  5 MR. GOLDIE:  My lord, just before lunch I had referred to the  6 twin problems which had caused irritation and wrangles  7 between the Province and the Dominion for a number of  8 years, that is to say, the size of reserves and the  9 reversionary interest claimed by the Province.  10 THE COURT:  What precisely do you mean by reversionary interest?  11 MR. GOLDIE:  It was the proposition that if a reserve was  12 surrendered as being unnecessary or in any other way,  13 that the -- all the rights reverted to the Province.  14 THE COURT:  All right.  15 MR. GOLDIE:  And it was oddly enough a suggestion made by Mr.  16 Duncan which was picked up and embodied in both the  17 Provincial and the Federal Orders in Council of 1875  18 which was part of the process of trying to arrive at a  19 settlement of the disputes between B.C. and Canada.  20 And that claim by British Columbia to this  21 reversionary interest, and I can say in brackets that  22 they went so far that British Columbia was selling  23 that interest in Indian reserves at one time, but that  24 was abandoned by British Columbia in 1912.  25 As part of the necessary historical review, I --  26 the documentary material will go into the origin of  27 claims to an interest in lands, if not in scope  28 approaching the claim of ownership and jurisdiction  29 made here, at least generically related to such a  30 claim, including such matters as the disallowance of  31 British Columbia land legislation in 1875; the  32 appointment of the Indian Reserve Commission; the  33 nature of Lord Dufferin's speech in Victoria in 1876;  34 the views of Mr. Sproat, who became the sole Indian  35 land -- Indian Reserve Commissioner; the views at the  36 time of the Federal Ministers of the Interior; the  37 views of Mr. Duncan at Metlakatla; the reports of the  38 two Commissions of Inquiry on the Northwest Coast; the  39 petitions of the native peoples to the Prime Minister  40 of Canada and to the King; all of these may be taken  41 as a prelude to the Dominion Order in Council of 1914  42 which provided for a judicial resolution of the  43 question of title.  44 These will be developed so far as our research has  45 enabled us to do in full context so that the true  46 construction and effect of the documents can be  47 determined.  Now, I commented on this history in my 18463  Opening by Mr. Goldie  1 remarks in Smithers and I won't go any further.  2 I want to conclude by making a comment about some  3 of the statements made by plaintiffs' counsel in their  4 opening, and some of the opinion evidence tendered in  5 the case so far, and I'm referring to evidence which  6 calls in question what I will call the honour of the  7 Crown, and that's a phrase that your lordship has seen  8 and it relates not only to the Crown or the executive  9 government of the Colony and then the Province of  10 British Columbia, but also in right of Canada and by  11 extension the Imperial Crown.  And in its broadest  12 terms the issue that is raised and has been raised is  13 whether the Indian peoples of this Province have been  14 treated fairly.  15 Now, in my submission the defence will support the  16 conclusions that firstly British Columbia is far from  17 being the only jurisdiction in Canada not to have  18 recognized aboriginal title.  Second, that the policy  19 of the Colony of British Columbia towards native  2 0 people was in its time and even now when viewed from  21 the perspective of the late 20th century enlightened  22 and humane.  Third, that the governments of the United  23 Kingdom and of the Colony were resolved to avoid a  24 policy similar to that pursued in the United States at  25 the time which required that treaties be negotiated  26 between parties holding vastly unequal powers,  27 followed by removal of Indian peoples from their homes  28 to confinement in sometimes remote reservations, and a  29 policy that not infrequently produced cruel results,  30 including bloodshed.  31 Now, my lord, if I may pause there, I read to your  32 lordship from Governor Douglas' dispatch of October  33 the 9th, and I wish to refer to an earlier dispatch --  34 excuse me, my lord.  I apologize, my lord, I thought I  35 had that dispatch with me, but at any rate, I can tell  36 your lordship what the substance of it was, the  37 reference that I had in mind.  It was the dispatch  38 which preceded the one that I referred to this morning  39 and which covered that part of his journey across the  40 Province in 1860 up to Lytton, and he commented on the  41 concerns which were being displayed by the Indian  42 peoples at the time over events which were going on in  43 the state of Oregon.  And he pointed out that -- well,  44 he didn't point out, he enclosed with his dispatch a  45 newspaper account of a battle between a party of  46 settlers and a body of Indians which resulted in the  47 extinction of the settlers with the exception of one 18464  Opening by Mr. Goldie  1 survivor, and he said it is a measure of the impolicy  2 of the United States' attitude towards the Indian  3 peoples that produced that result.  4 And the effect of it is indicated in the next  5 point, namely, that the Colony of British Columbia  6 chose instead to treat native people as British  7 subjects and, using the words of Governor Musgrave in  8 1870, "under the same protection entitled to the same  9 privileges and incurring the same liabilities as the  10 white population".  11 The next point that the colony of British Columbia  12 recognized that humanity required that lands used and  13 occupied by the Indians be protected and preserved  14 from them.  And those -- those are virtually -- it's a  15 paraphrase of the words Governor Douglas used.  16 THE COURT:  From them or for them?  17 MR. GOLDIE:  Preserved for them.  18 Next, that this duty was recognized and  19 incorporated into the Terms of Union under which  20 British Columbia joined Canada.  21 Now, my lord, it can certainly be argued that the  22 discharge of the obligations which were undertaken in  23 the name of the Crown were not always attended by a  24 praiseworthy or a generous spirit, but nevertheless  25 the obligation was performed.  And I will ask your  26 lordship to reject what I will call the conspiracy  27 theory of history which appears to have been adopted  28 by the plaintiffs in support of the far-reaching  29 claims of present day ownership and jurisdiction.  30 My lord, that is as much as I propose saying by  31 way of an opening and I -- subject to your lordship's  32 direction, I'll call the first witness.  33 THE COURT:  All right.  34 MR. GOLDIE:  Dr. Steciw.  35  36 IGOR STECIW, a witness called on  37 behalf of the Provincial Defendant,  38 testified as follows:  39  40 THE REGISTRAR: Would you state your full name and spell your  41 last name, please?  42 THE WITNESS:   Okay.  My name is Igor Steciw, I-g-o-r, is the  43 first name, last name is S-t-e-c-i-w.  44 THE REGISTRAR: Thank you, sir.  Please be seated.  45 THE COURT:  S-t-e-c-i-e-w?  46 THE WITNESS:   No, S-t-e-c-i-w.  4 7 THE COURT:  Thank you. 18465  I. Steciw (for Province)  In chief by Mr. Goldie  1  2 EXAMINATION IN CHIEF BY MR. GOLDIE:  3 Q   Dr. Steciw, you're a medical doctor practising in  4 Smithers where you have lived since 1967?  5 A   Yes.  6 Q   You took your undergraduate degree at McMaster  7 University?  8 A   Yes.  9 Q   And your medical degree at the University of Toronto?  10 A   Yes.  11 Q   You interned at a hospital in Saskatoon before  12 commencing the practise of medicine in Smithers in  13 1967?  14 A   Yes.  15 Q   Now, I'm instructed that in 1969 or 1970 you purchased  16 a half interest in a small guide outfitting area.  17 Would you tell the court how this came about and the  18 nature of what a guide outfitting area is?  19 A   Okay.  Why this came about actually is because since I  20 was a boy, young boy, I was always interested in the  21 out-of-doors and hunting, fishing.  This was my life  22 essentially, and when I came to British Columbia with  23 a specific purpose of carrying on these activities, I  24 saw the opportunity to carry on these activities not  25 only as a sort of a hobby, you might say, but also as  26 a -- well, to put it -- as a second profession.  And  27 also at this time I met a man who was in guiding, a  28 number of people, one of them actually was Tommy  29 Walker, who at this time was guiding in the Spatzizi,  30 and he inspired me essentially that perhaps it might  31 not be a bad idea to purchase a guiding area.  Also I  32 was sort of looking to purchasing a guiding area not  33 too far from Smithers so I could carry on my guiding  34 activities and also medicine at the same time.  And of  35 course I found a man by the name of Jerry Langdon who  36 held the area in question, and I decided to go ahead  37 and invest some money in it and purchase a half  38 interest.  It was a great adventure to me.  39 Q   I take it that the name guide outfitting sufficiently  40 describes the nature of the business that's carried  41 on?  42 A   Yes.  43 Q   I'm going to draw your attention to a map which has  44 been placed on the stand which is called entitled  45 "Boundary of Lis Pendens Area" and boundary shown  46 thus, which outlines the lis pendens area, and then  47 the second line is "guide and outfitters", and I 18466  I. Steciw (for Province)  In chief by Mr. Goldie  1 wonder if you could point out to his lordship on that  2 map the area that -- in which you purchased an  3 interest from Mr. Langdon?  4 A   Okay.  The area is essentially outlined by these lines  5 over here where -- and then so forth.  This dotted  6 line here, and the Bulkley River as a boundary.  7 Q   Could you name for the purposes of the transcript the  8 principal geographic features which -- by which you  9 can identify that particular area?  10 A   Sure.  It contains within its borders the Blunt  11 Mountains, the Goat Mountain, Nadazil Mountains, and  12 some -- well, all of the Harold Price Creek, some  13 lakes such as Wan Lake, Torkenson and Holland Lakes,  14 and I believe Bristol Lake, but I'm not sure because  15 that was sort of on the boundary.  16 Q   Now, I think the spelling of those is all sufficiently  17 self evident, but what was the one before Bristol,  18 Tork —  19 A   Torkenson.  20 Q   Torkenson?  21 A   Yes.  22 Q   All right.  On that map, is that identified with the  23 letter 22 and a name McTaig(ph)?  24 A   Yes, that's correct.  25 Q   Is McTaig the person to whom you disposed of that  26 area?  27 A   Yes, that's correct.  28 Q   My lord, this map is the one that is known as map 13  29 for which Exhibit number 55C is -- has been reserved.  30 I'm going to come back to it in a few minutes, but I  31 will be asking that it be given that exhibit number.  32 Perhaps now, Doctor, you would describe just how  33 you made use of that territory?  You said that you  34 purchased a half interest in it and I take it that  35 later you acquired all of the interest in it?  36 A   That's right.  That's correct.  37 Q   And you held that territory or used that territory as  38 a guide outfitter from 1969 or 1970 until what time?  39 A   Until 19, I believe, 76.  4 0 Q   Right.  And you were -- during that period you became  41 a certificated guide outfitter?  42 A  Well, the area you see became certificated.  43 Q   Yes?  44 A   It was a change from what was the sort of case before  45 and definite boundaries were put on the area as  46 described in the certificate giving me the -- well,  47 the exclusive rights to guide. 18467  I. Steciw (for Province)  In chief by Mr. Goldie  1 Q   In that area?  2 A   In that area.  3 Q   Now, you will be telling his lordship in a few minutes  4 about the present area in respect of which you hold a  5 guide outfitter's certificate, but am I to understand  6 that during this period between 1969, '70, to sometime  7 in 1976, you held the exclusive right to guide in the  8 area that is marked on that map as 22?  9 A   Yes.  10 MR. GOLDIE:   Now, I want to go back to the manner in which you  11 utilized that area, and can you --  12 MR. RUSH:  Excuse me, I understood you to say that he purchased  13 this eventually at one time.  14 MR. GOLDIE:  He purchased the other half interest.  15 MR. RUSH:  When was that, because I suppose that he shared his  16 exclusive right with someone before that?  17 THE WITNESS:   Yes, that's right, with Jerry Langdon.  And then  18 I would say just a guess of two years afterwards, in  19 other words, '71, '72, I purchased the exclusive --  20 well, the other 50 per cent of the interest.  21 MR. GOLDIE:  22 Q   Yes.  23 A  And therefore I became the only certificated -- you  24 know, the guide and outfitter for that area.  25 Q   Right.  Thank you.  Now, I wanted to get your  26 description of how you made use of it?  27 A   Okay.  Well, in the guiding business really the start  28 is very slow usually, so at first I had very few  29 clients as I was an unproven case.  I took in clients  30 both on foot and by four-wheel drive and also by  31 horses into the area and guided them for big game  32 hunting.  33 Q   And where would you approach from?  This area is I  34 believe northeast of Moricetown is it?  35 A   Uh-huh.  Yes.  36 Q   How would you get into the area?  37 A   Okay.  There were -- first of all with horses that I  38 took in.  I had a pack string of horses.  I would get  39 in on the so-called Duck Wing Lake Road and then at a  40 certain point I had a blazed tree where I knew where  41 to go in with horses, sort of say blindly without a  42 trail.  This is to keep it more or less secret from  43 other people.  And then after, shall we say half a  44 mile to a mile, the real trail began and this trail  45 went ultimately to the Goat -- so-called Goat  46 Mountain, in that area, where I hunted goats  47 primarily. 18468  I. Steciw (for Province)  In chief by Mr. Goldie  1 Q   And you've named one species just now of --  2 A   Yes, goat.  3 Q   -- the game that was being sought?  4 A   Yes, mountain goat, grizzly bear, moose, black bear  5 essentially.  6 Q   And what time of year would you take people in there  7 for the purposes of hunting?  8 A   In September --  9 Q   And that was --  10 A   — usually.  11 Q   And September until about when?  12 A   Until probably the end -- well, the beginning of  13 September until probably the end of September, some  14 such time.  15 Q   Right.  And this went on until you disposed of the --  16 this went on annually did it?  17 A   Yes.  18 Q   Can you tell his lordship or identify for his lordship  19 any other area within this lumped creek area in which  20 you took hunters in?  21 A   Yes.  There was another area where I have utilized an  22 existing forestry access road and walked in with two  23 American hunters from Montana.  This was in 1976 and  24 this was essentially the area we hunted was behind two  25 valleys behind Seaton Mountain.  If you care to I  26 could show it to you on a map, more or less.  27 Q   Yes.  I'm going to ask you to take a red marker and  28 put a circle firstly on Goat Mountain, and secondly on  29 the area you're just describing now.  30 A   Okay.  This is Goat Mountain.  Should I put a "G"?  31 Okay.  This is Goat Mountain right here, a circle and  32 "1", and this is Seaton Mountain.  So we went in --  33 this map is -- okay, here we are.  This is the first  34 big valley right here.  I would say right in there was  35 the second.  36 Q   That's all right.  Carry on.  My only concern is that  37 the reporter catch what you're saying.  And you put a  38 "1" beside Goat Mountain and a "2" beside Mount  39 Seaton; is that correct?  40 A   Yes.  41 Q   All right.  Now, would you be good enough to trace  42 with the red pen still the route that you took in to  43 Goat Mountain?  44 A   Yes, I have to find here Duck -- Duck Wing Lake, and  45 I'm not sure -- I'm not sure -- one of these two lakes  46 probably is -- it doesn't -- here we are.  Okay.  It  47 was approximately -- we started off before Duck Wing 18469  I. Steciw (for Province)  In chief 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  Lake and it approximately followed thus.  If this  little thing here indicates a little pot-hole lake  which I use it's almost right in place.  I have a  picture of this, a photograph.  So we would put this  what as "3" or just the actual --  Q   Just draw the line so that we can follow that.  A   Okay.  I've drawn a dotted line more or less the way  it was.  And then we had actually a sort of a -- well,  there was a -- after eight hours of travel by horses  we put up a first camp which was -- that was before  Goat Mountain.  It was, I would say, approximately  here.  I'll put number "3" on that.  And then the next  day we usually would start.  We'd take a half-day ride  by horses to get to this sort of penultimate almost  camp here where we set up for the permanent camp and  hunted from here Goat Mountain.  What you have marked "4"?  Pardon me?  Which you have marked "4"?  Yes, that's right.  THE COURT:  THE WITNESS  THE COURT:  THE WITNESS  MR. GOLDIE:  Q   All right  That's the camp from which you set out to  do the actual hunting?  A   The goat hunting.  Yes.  Q   Now, would you just draw with a line, another dotted  line, how you got into the Mount Seaton area?  A   Okay.  There's a forestry access road right over here.  And you go -- right almost before it ends it goes down  into the Blunt Creek drainage.  Before just it goes  down in that there's a cut-off, some sort of a -- I  think it's an old mining road to the left.  You follow  that until it comes to -- literally to the end and  there's an old broken down mining shack with an  aluminium roof that's all caved in, and from there we  started cross-country.  So I'll approximate that just  say approximately -- approximately like this.  Okay.  Q   All right.  Now, I want to understand your evidence so  far.  You've -- you commenced the exclusive use of  that area in 1971 or 1972, and you disposed of your  interest in it in 1976.  And your use of it, as you've  described it so far, was conducted on an annual basis.  Is that --  A   Pretty well, yes.  It was very sporadic as I mentioned  because the clientele wasn't steady, but it was there.  Q   Yes.  All right.  A   Uh-huh.  Q   Now, I want to read to you some names, but before I do 18470  I. Steciw (for Province)  In chief by Mr. Goldie  1 that, prior to your acquisition of an interest in this  2 area, did you have any experience at hunting in the  3 general locality of the Blunt Mountain area, and I'm  4 referring you to Suskwa River.  Did you ever hunt in  5 that general direction?  6 A   No, I don't remember.  7 Q   The -- in 1970 were you hunting there with Mr. Leonard  8 George?  9 A   Oh, actually I hunted with Mr. George shortly after I  10 came to Smithers.  We were hunting essentially in the  11 Quick area which is just --  12 Q   Oh, yes.  13 A   Just east of Smithers about maybe 26 something odd  14 miles.  We've hunted along the Morice River Road.  15 Q   Uh-huh.  16 A  We hunted on actually crossing private property on the  17 grazing lease.  As a matter of fact, I remember in the  18 spring of 1968 I shot a grizzly with Leonard being  19 right beside me.  20 Q   I'm going to ask you to identify on the map the -- you  21 mentioned Quick did you?  22 A   Yes, it's called, yeah, Quick, Falcon Road.  23 Q   Would you do that, and I think we're up to number 5  24 now?  25 A   Okay.  I'll try to find that.  Here's Houston and  26 Smithers.  Here's Smithers.  Somewhere here.  It's  27 right in between a little bit.  28 Q   Maybe Mr. Mackenzie can assist you.  29 A   Quick.  Okay.  It was generally speaking the Quick  30 area, and it was actually on the northeast side of the  31 river.  It's a general region.  Like we didn't stick  32 to any one particular field or anything like this, so  33 I'll put just general number "5".  Is it -- is it 5?  34 And also we hunted on Grouse Mountain.  35 Q   And could you put a number opposite that, please?  36 A   Yes.  And incidentally there was one occasion that we  37 hunted west of the river.  I mean, this is a matter  38 of -- and this is where of course, as I mentioned, in  39 May I shot this grizzly with Leonard being right  40 beside me, and that's not -- I'm not really sure of  41 the exact location.  It was more or less a little bit  42 south and a little bit west of the --  43 Q   Of the Bulkley River?  44 A   Of the Bulkley River.  Yes.  45 Q   All right.  46 A   So I can put "7" in there?  47 Q   Yes, if you would, please. 18471  I. Steciw (for Province)  In chief by Mr. Goldie  1 A   It's approximate.  2 Q   And this we may identify as the general area in which  3 you shot the grizzly when accompanied by or with --  4 when you were with Mr. Leonard George?  5 A   Yes.  6 Q   Now, I want to read to you some names and I should  7 tell your lordship that I'm going to read the names of  8 territories identified by -- in the territorial  9 affidavits which contain references to some of the --  10 some of the geographical features that we have  11 referred to, and the first one is Blunt Creek which is  12 identified in Exhibit 185, section C, capital C.  And  13 have you ever -- do you know any of the following  14 people:  Lucy Namox, Stanley Morris, Sylvester  15 Williams; any one of these three?  16 A   The first one was Lucy?  17 Q   Lucy Namox, N-a-m-o-x?  18 A   I actually think I know her, but I'm not dead sure.  19 You see, your honour, I take care of a lot of the  20 native people in Smithers and when I'm on call for  21 other doctors and so forth a lot of these names run,  22 you know, into each other.  I'm fairly sure I know  23 Lucy, Lucy Namox.  24 Q   All right.  Stanley Morris?  25 A   Yes, I know Stanley Morris.  26 Q   Sylvester Williams?  27 A   Don't believe so.  28 THE COURT:  I'm sorry?  29 THE WITNESS:   I don't believe so.  30 MR. GOLDIE:  31 Q   Did any one of those three, and you've only identified  32 tentatively one and positively another, but did any  33 one of those three ever inform you that you were using  34 territory which they claimed?  35 A   No.  36 Q   And I'm going to refer now to the Suskwa River which  37 is -- forms part of the northern boundary --  38 A   Yes.  39 Q   -- of area 22.  Did you know Sylvester Green or David  40 Green?  41 A   I don't believe so.  42 Q   All right.  Now, Harold Price Creek -- oh, my lord,  43 the exhibit reference of the Suskwa River is Exhibit  44 595 A, capital A.  Next reference is Harold Price  45 Creek.  That runs throughout the area 22, does it not?  46 A   Yes, it does.  Uh-huh.  47 Q   Roy Morris? 18472  I. Steciw (for Province)  In chief by Mr. Goldie  1 A   Roy Morris I have just met I think, what was it, last  2 week as a matter of fact, a medical matter of one of  3 his family.  4 Q   Dick Naziel?  5 A   I don't think so.  6 Q   N-a-z-i-e-1. And that is Exhibit 185 B.  And in  7 respect of the, again, part of the Harold Price Creek  8 area, Leonard George you have referred to, you know  9 him?  10 A   Yes.  11 Q   Now, Luna Creek -- oh, before I go on, the reference  12 to Harold Price Creek in relation to Mr. Leonard  13 George is Exhibit 676 A.  Next reference is Luna  14 Creek.  Is that an area that is in the Blunt Creek  15 area?  16 A   Yes.  17 Q   Exhibit 602 C.  Do you know a Mr. Walter Wilson?  18 A   It doesn't ring a bell.  19 Q   Well, in respect of any of those names that I put to  20 you since referring you to Lucy Namox, Stanley Morris,  21 and Sylvester Williams, did any one of the names that  22 I mentioned to you subsequently ever tell you that in  23 your use of the Blunt Creek area you were using  24 territory claimed by them or others -- or other native  25 peoples?  2 6 A   No.  27 Q   I say that, my lord, because not all of the exhibits,  28 of course very few of them, are sworn by the chiefs  29 themselves.  They are referring -- they're sworn by  30 other people on behalf of chiefs or referring to  31 chiefs' territory.  32 Now, you said that your use of the -- this Blunt  33 Creek area was annually, sporadically. Was any part of  34 it shut off by the Fish and Wildlife branch in 1975?  35 A   Yes, as a matter of fact it was.  They were conducting  36 some sort of a mountain goat study and they decided to  37 actually shut off all of the mountains within my  38 guiding area to goats for one year.  I believe it was  39 1975.  It was a biologist called Dave Hatler.  40 Q   But your belief is that it was 1975.  Did you use that  41 area in the subsequent year?  42 A   Yes, 1976.  43 Q   Right.  Now, what evidence, turning your mind back to  44 this experience you had with this area, what evidence  45 did you observe of Indian presence in this area, area  46 22?  47 A  Well, where I went anywhere off the road none 18473  I. Steciw (for Province)  In chief by Mr. Goldie  1 whatsoever.  On the old Suskwa Road, which is sort of  2 parallel to the Bulkley River, I think one or maybe  3 two occasions at the most right on the road I think,  4 as I recall, one or maybe even two cars there were  5 some native people, one or two people, in.  I believe  6 I saw a rifle.  That's in the car.  It's quite vague,  7 this information, to me.  8 Q   And did you see any hunting by Indian or native  9 peoples?  10 A   No.  11 Q   In your use of that area did you see any other human  12 activity?  13 A   Yeah.  Yes, in 1976 when we walked, as I mentioned,  14 with these two American hunters into that second  15 valley past Seaton Mountain we noticed an awful lot of  16 helicopter sort of activity to one side of our camp  17 and we followed this up, climbed the mountain, and saw  18 down in the valley a tent, and we found -- we walked  19 down to the tent and there was a man and a woman and  2 0 there was some other people that were away from camp  21 they said, but anyhow, they identified themselves as  22 mining exploration crew.  23 Q   And that was in the -- you say the second valley past  24 Mount Seaton?  25 A   Okay.  That's when I walked in with those hunters  26 there, but this actually was the valley after that.  27 Q   Yes.  28 A   The third valley you might say.  29 Q   Thank you.  Now, in 1977 you acquired a certificated  30 area which I'm instructed you refer to as the Upper  31 Skeena area?  32 A   Yes.  33 Q   Would you indicate to his lordship on the map the  34 boundaries of that area?  35 A   Okay.  It joined on -- in the southern portion,  36 south-eastern portion, it joined the other area, as  37 indicated by this dotted line.  It followed this  38 broken line, went along the Babine River to its  39 confluence with the Skeena River at this point,  40 travelled up the midline of the Skeena River up to at  41 the point where the Sustut River flows into the Skeena  42 River, and subsequently it essentially followed all  43 the drainage of the Mosque River including half of the  44 Mosque Mountain, which is here, and then it followed  45 the Skeena drainage opposite or in boundary with the  46 Tatlattui Park and —  47 THE COURT:  What was the name of the park? 18474  I. Steciw (for Province)  In chief by Mr. Goldie  1 THE WITNESS:   Pardon?  Tatlattui Park.  2 THE COURT:  T-a-t —  3 THE WITNESS:   T-a-t-1-a-t-t-u-i I guess.  I think.  And then it  4 went as far as Duti River on both sides of the Skeena  5 and then it followed the western drainage of the  6 Skeena including the Slamgeesh River.  Am I supposed  7 to wait, your honour?  8 THE COURT:  No, that's all right.  9 THE WITNESS:   Okay.  And coming down to Canyon -- the drainage  10 of the -- well, it's essentially the Skeena drainage  11 including Canyon Lake and a little unnamed lake just  12 west of that.  Then it went along Vile Creek to the  13 Nass River, followed the Nass River down until it was  14 at the junction with the Kwinageese River going down  15 as -- it's a little difficult to describe.  It's all  16 described in my certificate, sir.  Essentially  17 following this dotted line here to the Cranberry down  18 along this line here, Cranberry, then Kitwanga Lake,  19 Kitwanga River, down to the Skeena, and then it joined  20 up going up the Skeena, then up the Bulkley, joining  21 up with the confluence of the Suskwa River with the  22 Bulkley as outlined in this map.  23 MR. GOLDIE:  24 Q   Now, that -- I'm sorry, on that map it has your name  25 and what number beside it?  26 A   Twenty-three.  27 Q   Twenty-three.  And is that the guiding area that you  28 acquired in 1977?  29 A   Yes, sir.  There is one thing I'd like to point out at  30 this point.  Part of this area from Vile Creek,  31 essentially the Nass -- that part that is the  32 Kwinageese River and the Nass, was not included in  33 this at the very beginning.  Subsequently it was added  34 by the game branch.  And another addition just  35 happened I believe in 1987 to the plot that I  36 mentioned was that I bought out part of Ron Fleming's  37 area north of me, and added it on to it.  And if you  38 care to we can go through those boundaries.  39 Q   Well, I'm instructed that this map, my lord, indicates  40 boundaries as of the date the writ was issued in 1984.  41 All right.  Well, now, Doctor, if you'd like to now --  42 I'll come back to that in a few minutes, but perhaps  43 you might tell his lordship something of the  44 background of your acquisition of this.  From whom did  45 you acquire this particular area?  46 A   I acquired it from a guiding company that called  47 itself, and still does, the Love Bros. & Lee, and this 18475  I. Steciw (for Province)  In chief by Mr. Goldie  1 essentially represented by far the vast majority of  2 the total area.  They still kept a little northern  3 portion which they still have.  4 MR. GOLDIE:   What is the -- what's the size of this area on the  5 map?  It indicates it's a very substantial area,  6 but —  7 MR. RUSH:  Are we now talking about the area that was purchased  8 in 1977 or the area that is described on this map?  9 MR. GOLDIE:  Yes, we're talking about the area that was  10 purchased in 1977 --  11 MR. RUSH:  Thank you.  12 MR. GOLDIE:  13 Q   -- and is represented on this map with the exception  14 of the northern area and that's outside that solid  15 black line representing the claims area, is it not?  16 A   Uh-huh.  17 MR. RUSH:  I'm sorry, I understood the witness to say that there  18 were two additions.  19 MR. GOLDIE:  Yes.  20 MR. RUSH:  One —  21 MR. GOLDIE:  22 Q   One in 1980 when —  23 A   The first -- okay.  The first change from the original  24 boundaries as I had bought the area from Love & Lee, I  25 forget when exactly, it's -- it was added by the game  26 branch I would venture a guess '85, '84, something  27 like that.  It's only a guess, and this can be checked  2 8 with the game branch.  And the next addition was in  29 1987 when I bought a small portion sort of adding on  30 to the northernmost border of that area from Ron  31 Fleming.  32 Q   Yes.  All right.  Now, I want you to give his lordship  33 an estimate of the size of the area as you bought it  34 before the first addition to it?  35 A  Approximately 4,000 square miles.  36 MR. GOLDIE:   Now, you mentioned that that is the area in  37 respect of which you obtained a certificate.  I want  38 to show you a certificate, a copy of what purports to  39 be a certificate, and ask you to identify it.  I'm  40 showing the witness a document marked "Guide  41 Outfitter's Certificate".  My lord, that is — a  42 photocopy of that or one of its variations is found in  43 Exhibit 55D, I believe, tab 23.  44 Doctor, on page --  4 5 THE COURT:  Tab 23?  46 MR. GOLDIE:  47 Q   Tab 23 of Exhibit 55.  On page 2 is that your 18476  I. Steciw (for Province)  In chief by Mr. Goldie  1 signatures above the line marked "grantee"?  2 A   Yes.  3 MR. GOLDIE:   All right.  My lord, I tender that as an exhibit.  4 THE COURT:  All right.  5 THE REGISTRAR: Exhibit 1082, my lord.  6 THE COURT:  1082?  7 THE REGISTRAR: Yes.  8  9 (EXHIBIT 1082:  Guide Outfitter's Certificate for Dr.  10 Steciw)  11  12 THE COURT: Mr. Grant — excuse me, Mr. Goldie — was it on Vile  13 Creek did we stop and changed passengers in the  14 helicopter?  15 MR. MACKENZIE:  I could —  16 THE COURT:  Oh, yes, you were there too, Mr. Mackenzie.  17 MR. MACKENZIE: Yes, my lord.  Where Vile Creek went into the  18 Nass River just past -- we went up Canyon Creek,  19 Canyon Lake, Vile Creek, down to the Nass River, and  2 0 that's where we changed.  21 THE COURT:  Were we on Vile Creek when we changed?  22 MR. MACKENZIE: I think it was either just around that time or  23 just after that time.  24 THE COURT:  After we'd been on to the Nass?  25 MR. MACKENZIE: Yes, my lord.  26 THE COURT:  All right. We were already on the Nass after having  27 flown along part of Vile Creek or all of Vile Creek?  28 MR. MACKENZIE: Yes, my lord.  2 9 MR. GRANT: Yes.  30 THE COURT:  All right.  Thank you.  31 MR. GOLDIE:  32 Q   Doctor, the guide outfitter's certificate is the one  33 that gives you the exclusive right to guide in the  34 named area?  35 A   Yes, sir.  36 Q   And the -- there is attached to it a metes and bounds  37 description or a, more accurately, a description  38 referring to the geographic features.  Is there in  39 addition to a certificate a licence --  40 A   Yes.  41 Q   -- requirement?  42 A   Yes, this is a yearly licence that's renewed yearly to  43 guide in that specific area for which a guide  44 outfitter holds a certificate too.  45 Q   Now, looking at the certificate it appears to be valid  46 for a period of what, seven years, and then the  47 licence is renewed annually; is that the idea? 18477  I. Steciw (for Province)  In chief by Mr. Goldie  1 A   I believe -- yes, various -- I'm not sure what mine  2 was for, how long it was valid, but I think -- I think  3 it's variable actually in different cases.  4 Q   All right.  Well, whatever the time is it will be  5 stated in the exhibit?  6 A   Yes.  7 Q   But the licence itself is renewal annually?  8 A   Yes.  9 Q   I'm showing you a document headed "Guide Outfitter  10 Licence", and there is a line marked "Signature of  11 licensee".  Do you own up to that?  12 A   Yes.  13 Q   That's your signature?  14 A   Yes.  15 MR. GOLDIE:   I tender that as an exhibit, my lord.  16 THE REGISTRAR: Thank you.  17 THE COURT:  1083?  18 THE REGISTRAR: Yes, my lord.  19  20 (EXHIBIT 1083: "Guide Outfitter Licence of Dr. Steciw)  21  22 MR. GOLDIE:  23 Q   Now, I note that appendix A refers to assigned quotas.  24 Would you explain that to his lordship, please?  It's  25 the last page of that licence, my lord.  26 A   Yes.  What certain licences state are certain special  27 restrictions you might say.  For example, in my area  28 in the southern portion I was only allowed to take so  29 many moose, and so many goats, and that's what quotas  30 refer to.  31 Q   When you say you take, you're referring to --  32 A   I'm sorry, in my guiding activities --  33 Q   Yes.  All right.  34 A   -- for my clients I'm allowed to harvest only a  35 certain number of certain species as outlined in the  36 quota system.  37 Q   Now, I want to go through with you your particular use  38 of this area and if we could do it by years, to the  39 best of your recollection, and if you need assistance  4 0 in refreshing your memory and you have documents which  41 would assist you in that in the form of aircraft logs  42 or other documents of that time, diaries or anything  43 like that, well then tell -- you can tell his lordship  44 when you've reached a point where you've exhausted  45 your recollection.  46 A   Okay.  47 Q   But first let us go back to the year in which you say 18478  I. Steciw (for Province)  In chief by Mr. Goldie  1 you acquired an interest in this and that would be  2 1977.  Did you take people into this area in that  3 year?  4 A   Yes, I did.  5 Q   Can you tell his lordship approximately when and  6 where?  7 A   Okay.  I took two American hunters for goat only  8 hunting into Kuldo'o Lake.  We flew in there with a  9 Beaver, made camp, and hunted.  I believe we --  10 Q   Go ahead.  11 A  We flew in I think it was the middle of September,  12 September 15th, and we were supposed to fly out I know  13 either on the last day of September or the first day  14 of October, but the weather turned bad and the plane  15 was a couple of days late, at least two or three days.  16 Q   Would you please mark on the map with a --  17 A   Yes.  18 Q   -- numeral "6" I guess it is Kuldo'o Lake?  19 A   Okay.  20 MR. MACKENZIE: I think it's "8".  21 MR. GOLDIE:  Is it "8"?  22 MR. MACKENZIE: Yes.  23 MR. GOLDIE:  24 Q   All right.  Thank you.  25 A   Okay.  Well, Kuldo'o Lake is right over here.  Right  26 here.  So --  27 Q   Just put a circle around it.  28 A   Okay.  I put it just north of it anyhow.  2 9 Q   Now, that was where you went in.  Where did the  30 hunting take you from that lake?  31 A   Okay.  The hunting took us into the mountains north  32 and into the mountains south of there.  33 Q   And approximately how many miles in each case away  34 from the lake itself?  35 A   Okay.  I remember that we went north almost as far as  36 a little lake that -- where one of the branches of the  37 Kispiox ends, and this is the little lake here.  I  38 would say it was about just -- I'm going to put a  39 straight line, of course that's not the way we went,  40 but approximately ended up something like here.  Now,  41 south of here we went to the headwaters of the Sweetin  42 River, essentially, the headwaters of the Skeena,  43 following into here.  Let me get my glasses.  I find  44 this map actually quite confusing because it's  45 strictly black and white instead of the usual colour.  4 6 Okay.  So we would have been approximately maybe as  47 far as here, and actually this I can tell you when 18479  I. Steciw (for Province)  In chief by Mr. Goldie  1 exactly -- I'm sorry, and this is more or less exact.  2 There's a certain valley and an overpass here.  That's  3 where we went.  4 Q   All right.  Now, that was in 1977 in the fall?  5 A   Oh, excuse me.  One more thing.  The other guide that  6 was with me and the two hunters did go down quite a  7 ways down the Kuldo'o River.  I'm not exactly sure how  8 many miles, perhaps three, something like that, a  9 rough guess.  10 MR. GOLDIE:   All right.  11 MR. RUSH: I think the witness should restrict his comments to  12 what he knows from his personal observation.  13 MR. GOLDIE:  Yes, I agree.  And that's all I'm asking Dr. Steciw  14 to do is to state what he himself did or saw.  15 THE COURT:  What do you mean by an overpass?  16 THE WITNESS:   Oh, pardon me, not an overpass, I meant a pass  17 period.  18 THE COURT:  Oh, all right.  19 MR. GOLDIE:  20 Q   Any signs of human activity other than your own in  21 that trip?  22 A   None.  23 Q   And the fall of 1977?  24 A   None whatsoever.  25 Q   All right.  Now, let's go to the next year, 1978?  26 A  Would you like me to start now?  27 Q   Yes, if you would, please.  28 A   Okay.  In the spring of 1978 I hired a DC3 aircraft  29 and took in a lot of supplies to build camps.  I took  30 gas, I took lumber.  I'd taken two men with me and we  31 landed at the Chipmunk Creek landing strip in the  32 north Skeena portion of my guiding area.  33 Q   What's the location of that airstrip?  34 A   Okay.  I can mark that airstrip for you exactly.  35 It's -- the Chipmunk Creek here isn't labelled, but  36 this is Chipmunk Creek.  There's a big swamp here.  37 The strip is something like -- about like that.  38 Q   And would you give that a number, please?  39 A   Number "9".  Okay.  And we prepared -- oh, we went --  40 I also flew in a jet boat, an aluminium 20-foot jet  41 boat with motor, jet -- a mercury motor with jet  42 attachment, and I explored the river with these two  43 men down the stream.  44 THE COURT:  The Skeena River?  45 THE WITNESS:   Downstream approximately eight miles.  46 MR. GOLDIE:  47 Q   This is the Skeena River though? 18480  I. Steciw (for Province)  In chief by Mr. Goldie  1 A   This is the Skeena River.  We explored it down  2 approximately eight miles to Foster -- to Foster  3 Creek, which is right here, and we set up camp here.  4 We also explored maybe five -- at least five miles  5 downstream of that also, but the initial drive was to  6 build a camp I could use for that spring's bear hunt  7 which was coming very fast and I didn't have that much  8 time.  9 Q   Now you said "we explored down to Foster Creek", and  10 you said you've marked something on the map.  You  11 better put a number on that.  12 A   Oh, okay.  This is number "10".  13 Q   Now, would you again describe what number 10 is?  14 A   Number 10 is -- essentially marks the confluence of  15 Foster Creek and Skeena River and this is the site  16 where we prepared camp.  We made tent frames.  We just  17 set up a very comfortable tent -- I mean a camp.  18 Q   And did you -- any other activities?  Did you cut  19 trails?  20 A   Yes.  Yes, we cut trails right up -- see there's a --  21 some excellent slides, what we call slides.  These are  22 very steep areas where in the spring the snow goes off  23 and the fresh green grass comes and this is where the  24 bear of course like to eat it first thing in the  25 spring.  We wanted to get to these places and this  26 meant making trails up Foster Creek.  And we  27 established a little fly camp somewhere like two and a  28 half hours walk by trail to the headwaters of Foster  29 Creek.  Should I mark that or --  30 Q   And now you've told his lordship that you explored  31 both the Skeena down to Foster Creek or south of  32 Foster Creek, and did you explore Chipmunk Creek?  33 A   Yes.  I beg your pardon, I forgot that.  We did  34 explore Chipmunk Creek, but we made no trails in 1978  35 into the Chipmunk -- along the Chipmunk Creek.  36 Q   Now, Chipmunk Creek is not identified by a name on  37 that map, but it is the confluence of the unnamed  38 creek where the airstrip is that you marked?  39 A   Yes.  40 Q   All right.  And it runs -- or it drains the area that  41 eventually is marked with Chipmunk Mountain; is that  42 correct?  43 A   Yes, that's right.  44 Q   All right.  Now, that you say was in the spring of  45 1978?  46 A   Yes.  47 Q   In that spring later did you -- did you guide any 18481  I. Steciw (for Province)  In chief by Mr. Goldie  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  A  Q  A  Q  A  hunters into that area?  Yes, I did.  What areas did you use?  In the spring?  Yes.  We -- okay, to be exact we hunted along the Chipmunk  Creek and going quite a bit upstream of Chipmunk Creek  I would say roughly speaking maybe four, four miles or  so, and we hunted upstream in the headwaters of Foster  Creek and we hunted along the shores of the Skeena  River and between Chipmunk and Foster Creek.  In fact  that year we went all the way up to where the -- up  the Skeena where the Duti River empties into the  Skeena, and I -- again, we probably hunted as far as  between five and ten miles, probably five, seven miles  what have you, down on the Skeena River and sort of  adjacent country downstream from Foster Creek.  Right.  Now, were you active in the fall of that year  Yes.  Can you describe that for his lordship, please?  Okay.  I think, Mr. Goldie, if you don't mind we'll take  the afternoon adjournment before we get into the fall  season.  Thank you.  REGISTRAR: Order in court. Court stands adjourned for a  short recess.  (PROCEEDINGS ADJOURNED FOR AFTERNOON RECESS)  I hereby certify the foregoing to  be a true and accurate transcript  of the proceedings herein to the  best of my skill and ability.  Q  A  Q  A  THE COURT  THE  9  Tanita S. French  Official Reporter 18482  I. Steciw (For Province)  In chief by Mr. Goldie  1 (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT)  2 THE REGISTRAR:  Order in court.  3 THE COURT:  Mr. Goldie.  4 MR. GOLDIE:  5 Q   Doctor, we were -- I was just going to ask you about  6 other activity in 1978.  I understand you guided in  7 that area in the fall of 1978?  8 A   Yes, I did.  9 Q   When I say that area, I am talking about your own  10 general area.  Now --  11 A   Yes.  12 Q   Now, can you tell his lordship precisely in greater  13 detail where and when and --  14 A   Okay.  I flew out at the end of August some time to  15 Slamgeesh Lake again to make trails and freshen up  16 trails to make sure the camp was essentially  17 serviceable and good because I had clients coming.  I  18 think the first client -- I think the first client  19 came the very beginning part of September.  It is  20 either 1st or the 5th of September.  And all in all, I  21 have guided in Slamgeesh Lake area downstream -- like  22 downstream from Slamgeesh Lake, as well as going west  23 the other way, as well as hunting on the mountains  24 south and southwest of Slamgeesh Lake.  I am pretty  25 sure -- I mean the date is -- I think we went out of  26 there, in fact I'm sure it was something like 4th, 6th  27 of October or thereabouts.  28 Q   So you and your crew were there for late August to  29 early October?  30 A   Yes.  31 Q   And your clients were there for early September to  32 early October?  33 A   That's right.  34 Q   And did you see -- well, tell me what you did or tell  35 his lordship what you did in preparation for the  36 arrival of your -- of your clients in terms of trail  37 building.  And whether, in the course of that, you saw  38 any evidence of human activity, past or present.  39 A   Past or present.  Okay.  Well, essentially we had to  40 fix up the cabin.  We had to clean it, the existing  41 cabin.  I have made a trail to a mountain from the  42 Slamgeesh Lake on a southern -- sort of south,  43 southwest of Slamgeesh Lake so that we would have  44 access to a goat hunt because I had a goat hunter.  So  45 I have made that trail with a fellow guide.  I have  46 also made a trail downstream along Slamgeesh River I  47 would say for a total of maybe four miles or 18483  I. Steciw (For Province)  In chief by Mr. Goldie  1  2  3  4  5  6  THE COURT  7  A  8  9  10  11  12  13  Q  14  15  16  17  18  19  A  20  21  22  23  Q  24  A  25  THE COURT  26  A  27  THE COURT  28  A  29  30  Q  31  A  32  33  THE COURT  34  A  35  36  37  38  39  40  41  42  43  44  Q  45  A  46  Q  47  thereabouts, or three maybe from Slamgeesh Lake along  Slamgeesh River.  I have also refreshed trails from  Slamgeesh Lake westward along -- I guess it is an  unnamed creek joining Damshilgwit Lake to Slamgeesh  Lake.  :  We need a spelling of that, I suppose.  D-A-M-S-H-I-L-G-W-I-T, I think.  I also tried to go up  stream from Slamgeesh Lake which -- upstream of the  Slamgeesh River to get to the access to the mountains  north.  And I've made trails for quite a ways.  It was  just too tough so I gave that up.  But those were the  sum total probably of my preparational activities.  Right.  Now, before we go any further, would you put  onto the map 13 and identify as we have been doing  Slamgeesh Lake, Damshilgwit Lake, and some indication  of the extent to which you went upstream and  downstream on Slamgeesh Lake with your trail  preparation?  Slamgeesh Lake is over here.  Oh, yes, Slamgeesh Lake  is this little tiny little lake.  The cabin is right  about here.  Now, would you like me to put a number on  that?  If you would.  Sorry, I will put a circle around Slamgeesh Lake.  :  Put a number on it.  What number are we on now?  :  11.  Now, this is Damshilgwit Lake.  I put a circle around  that and put 12.  All right.  The trail that was freshened up was a trail along  here, essentially like so.  :  Between the points 11 and 12?  Yes, between 11 and 12.  Now, there are a number of  meadows near Slamgeesh River going down so we built  trails until a certain point which I would venture to  say a conservative estimate about three miles.  So we  will just put this down to something like, you know,  this and put an X here.  Also the trail I tried to  build to the mountains back of here, you see, and  didn't get anywhere.  I tried to go up here, but it  was too steep for any hunter to really be comfortable  with it, I felt.  Do you need that put on, too?  No, that's fine.  Okay.  Now, I want to ask you while you were doing all of  that whether you observed any -- any signs of human 18484  I. Steciw (For Province)  In chief by Mr. Goldie  1 activity other than your own?  2 A   No present activity whatsoever.  Right a little bit  3 past an outlet of Slamgeesh Lake where we had a tree  4 stand -- oh, okay, there was a tree stand just down a  5 little on the creek from the Slamgeesh Lake because  6 the way it happens is this way that Slamgeesh Lake  7 drains by a short sort of a creek into the Slamgeesh  8 River.  9 Q   Yes.  10 A   So there was a tree stand there before.  And it was  11 built by, I believe, Jack Lee who was one of the  12 people who owned that area at one time.  Now, when I  13 explored downstream I did find some little like shacks  14 about six by five or some such thing that puzzled me  15 at the time.  I didn't know what these were.  These  16 were quite close to this tree stand across the creek  17 and maybe a couple hundred yards or so off.  18 Q   Mh'm.  19 A  And as I have learned, this is hearsay, mind you --  20 Q   Well —  21 A   Okay.  I was very puzzled what these were.  But that  22 shows human activity.  23 Q   Anyway, you found these?  24 A   Yes, I found these.  25 Q   And I take it they were -- they were old, were they?  26 A   Yes, very old.  Also --  27 Q   I'm sorry.  28 A  Also I found traces of the old telegraph trail.  The  29 reason why I say this is because there were some  30 insulators from the wires that I remember we found and  31 gave to some of the hunters.  They kept for a  32 souvenir.  And some thick wire that I take it was for  33 a telegraph.  34 Q   Now, the map indicates the fifth cabin is somewhere in  35 that area?  36 A   Yes.  The fifth cabin is just west of Slamgeesh.  The  37 fifth cabin is almost -- well, fifth cabin is almost  38 at Damshilgwit Lake or sort of a highway term for that  39 lake is Fifth Cabin Lake.  4 0 Q   And did you ever locate anything which matched a  41 description fifth cabin?  42 A  What do you mean?  43 Q   Did you ever find any remains or ruins which --  44 A   Yes.  There are ruins there of I think two cabins.  45 Q   All right.  Now, was there anything else?  Did you  46 notice any blazes or --  47 A   Yes. 18485  I. Steciw (For Province)  In chief by Mr. Goldie  1 Q   -- any other signs of human activity?  2 A   Yes.  When I have made the trail south, southwest of  3 Slamgeesh Lake I made it -- of course I just sort of  4 chose where the trail would be good where it wouldn't  5 be too swampy, of course, and sort of picked my way  6 along to the top of the mountain.  As I was going I  7 would say maybe three quarters up, shall we say, I  8 noticed some deep, deep blazes in the trees.  Now,  9 this implies, Your Honour, that these blazes were made  10 some time ago and as the tree bark goes it builds up  11 so the blazes seem very, very deep.  There was no  12 trail there, but I just found the blazes.  And then I  13 picked my way and picked my way.  And when I was sort  14 of just a little bit further along, I came to a great  15 big spruce tree.  There was another very definite  16 blaze like that of an old blaze and in the wood  17 portion, you see, in pencil was written Dixie and some  18 name, I don't remember now, Stevens, 1948.  19 Q   Now —  20 A   So what I have done is I thought, well, that's fair  21 enough.  I will carve my name in there above that  22 1978.  So that's what's happened.  23 Q   To provide a puzzle for future generations.  Now,  24 apart from what you've described, did you find --  25 well, firstly, did you run across anybody else at the  26 time you were in there?  27 A   Nobody.  28 Q   And I am now going to refer to the spring in 1978 when  2 9 you were up in the Chipmunk and Upper Skeena and the  30 fall when you were at Slamgeesh?  31 A   No, nobody.  32 Q   And any indication of -- other than what you've  33 described of hunting activity?  34 A   No.  35 Q   Or other activity by native people or anybody else for  36 that matter?  37 A   No, none whatsoever.  38 Q   All right.  Thank you.  Now, in 1979, can you cast  39 your mind back to that, please?  40 A   Okay.  In the spring of 1979 I had a reasonably busy  41 spring bear season.  I flew out again to Chipmunk  42 strip, the landing strip.  And we have this time cut  43 trails up the Chipmunk Creek which would be about  44 three and a half hours' walk by the trail.  45 Q   Mh'm.  46 A  And subsequently past another three and a half four  47 hours' walk to another -- like another camp.  We found 18486  I. Steciw (For Province)  In chief by Mr. Goldie  1 no evidence of any campfires, nothing.  2 Q   That was in the spring in the Chipmunk Creek area?  3 A   Yes.  4 Q   Which you've marked on the map.  What about the fall?  5 Were you at either Slamgeesh or Chipmunk again in that  6 year '79?  7 A   Yes.  Yes, I was.  I was actually -- in 1979 I was in  8 Slamgeesh again.  9 Q   Again any signs of use by native peoples?  10 A   Nobody was around, sir.  11 Q   All right.  12 A   No sign.  13 Q   All right.  1980, can you recall -- let's start with  14 the spring?  15 A   Yes.  In the spring of 1980 I again did exactly the  16 same thing, I flew out to the Chipmunk strip.  I had  17 two big parties for spring bear.  I would say we  18 probably flew out there something like May 10th or  19 even a day or two before it could have been.  We were  20 there probably until -- I mean until about June 6th or  21 there about, something to that effect.  22 Q   Any sign of Indian presence?  23 A   No.  24 Q   Were you active in the fall of 1980?  25 A   No, I wasn't.  2 6 Q   And can you --  27 A  What happened was I sort of was overworked between  28 medicine and this because this turned out to be sort  29 of more of a working proposition than I perhaps  30 figured.  And I thought, gosh, wouldn't it be nice for  31 me to kind of get out and enjoy all of this myself.  32 And a buyer just presented himself and the area was --  33 a tentative agreement was made between him and myself  34 to purchase the area.  And I didn't, therefore,  35 continue.  36 Q   And for how long a period were you inactive because of  37 this reason?  38 A   Okay.  What happened was that this man was a very nice  39 chap, mind you, but he was a very inapt guide.  It  4 0              became very soon obvious to me and to him that he  41 couldn't really hang on to this and he couldn't carry  42 on the business.  So I repossessed the area in 1982.  43 In '82 and began to guide myself and thought, well,  44 fine, I am going to guide again.  45 Q   So you resumed your guiding activity, then?  46 A   Yes.  47 Q   All right.  Well, in that case, if we could go to the 18487  I. Steciw (For Province)  In chief by Mr. Goldie  1 first period in which you picked up that business  2 again.  3 A   Okay.  4 Q   What would that be, the spring of 1982?  5 A   Okay.  The spring of 1982 I flew out myself with my  6 plane to the Chipmunk strip with a guide, a fellow  7 that used to guide for me.  We just kind of had a look  8 around to see what was really going on because I  9 wasn't in the area for a little while.  And we kind of  10 freshened up the trail at Chipmunk Creek and looked at  11 the cache and so forth.  12 Q   All right.  13 A  And I was in there not very long, probably only a  14 week, if that.  15 Q   Now, you speak of freshening the trails.  Were there  16 any trails in that area before you cut them?  17 A   None.  None whatsoever.  18 Q   And I believe your evidence was that you cut trails in  19 that area in 1979; is that right?  20 A   That's right.  21 Q   All right.  Well, now any sign of activity of native  22 or other people?  23 A   No, sir.  24 Q   Go to the spring of 1983, please.  25 A   Okay.  Well, what happened was I had to essentially  26 start my guiding business all over again from scratch  27 because my clientele went since the ownership sort of  28 changed.  So I actually -- let's see, 1980.  Oh, yes,  29 I had two spring bear hunters who I took again to the  30 same place.  We flew out to Chipmunk strip.  We hunted  31 along Chipmunk Creek up to headwaters and the same  32 thing down the river, down the Skeena, Foster Creek,  33 up in the headwaters and the valleys there along the  34 Skeena.  35 Q   And any evidence at all of native use or any use of  36 those areas apart from what you've testified to?  37 A   No, not any native use.  I might say it was that  38 spring that there were three white hunters that flew  39 in with two aircraft on the Chipmunk strip.  And when  40 they saw me they were wondering, hey, you know, we  41 didn't think anybody was around.  And I said, hey,  42 look, it is not anybody's country.  We won't interfere  43 with you if you don't interfere with us.  And they  44 said, no, that's okay, so they flew out the next day.  45 Q   Those people were not a guide and a party though, I  46 take it?  47 A   No, no, these were resident hunters. 18488  I. Steciw (For Province)  In chief by Mr. Goldie  1  Q  2  A  3  Q  4  5  6  7  8  A  9  10  Q  11  12  13  A  14  Q  15  16  17  A  18  Q  19  20  21  A  22  23  24  25  26  27  28  29  THE COURT  30  A  31  32  33  34  35  36  37  38  THE COURT  39  40  A  41  42  43  44  THE COURT  45  A  46  47  And were they native or white people?  No, no, they were white people.  All right.  Now, you've indicated that you've had  considerable activity or use of the Chipmunk Creek and  the Slamgeesh Lake areas, and you made reference to  flying in your own plane.  When did you acquire your  own aircraft?  Well, I acquired my aircraft actually a few months  after I finished my pilots licence in 1979, I believe.  Mh'm.  So that you've been piloting your own aircraft  when you've been going into Chipmunk Creek and the  Slamgeesh?  Yes, from 1980 on.  All right.  Now, if we can pause then and consider how  you -- how you got to and from.  Where did you keep  your aircraft?  In Smithers  And how did you -- what was the route that you took up  to your -- to these two places, one Chipmunk Creek and  the other Slamgeesh?  Okay.  You know, sometimes it dictated what the  weather was like.  There was three routes, primarily.  The most common one was going from Smithers along  east -- just along the Bulkley River, going to the  Suskwa, the confluence of Suskwa River and Bulkley  River, going a little bit up the Suskwa going to Atlin  Pass.  I can trace that out for Your Honour if you  like.  Would you like that?  :  No, that's fine.  Then I went a little along the Babine River and then  Shedin Creek, along the headwaters of Shedin Creek to  Damsumlo Lake.  Then dropped into the Skeena and flew  to Canyon Lake which is in the area or Slamgeesh or  took that route and flew through the pass where  Slamgeesh River comes out of -- like over the  mountains on to the -- on to the Skeena at that point  and into Chipmunk.  :  What sort of landing gear is your plane equipped  with?  Okay.  You see, Your Honour, the first plane I had was  a Maule.  It is called Maule M4.  It is a STOL  aircraft.  STOL meaning short take off and landing.  And I had a regular landing gear --  :  Wheels?  Wheels, that's right.  And therefore I could land  quite easily on Chipmunk strip as, of course, can any  aircraft with wheels. 18489  I. Steciw (For Province)  In chief by Mr. Goldie  1 MR. GOLDIE:  2 Q   All right.  When did you dispose of this last aircraft  3 you mentioned?  4 A   Yes, this is my first aircraft, the Maule M4.  5 Q   Yes.  6 A   I disposed of it I think November 1980.  I have  7 obtained a 185.  8 Q   A Cessna?  9 A  A Cessna 185 on wheels and on floats.  And subsequent  10 to that, I think it was next year or so, I purchased  11 hydraulic skis which would enable me to take out from  12 the airport on wheels with the skis pumped up  13 hydraulically.  Then to travel like in the wintertime  14 I could hydraulically put the skis down and land on a  15 frozen lake.  And, of course, that was the reason.  16 Q   Well, I am going to come to your winter flying in a  17 couple of minutes.  But I interrupted you to ask your  18 route in the period that we have been talking about  19 which was basically from 1979 when you got your  20 aircraft until we got to 1983, I believe.  I am  21 correct in that.  '83, yes.  And I just want to go --  22 I want to go back now to the chronological sequence  23 and take you to the -- to 1984.  What can you tell  24 about that year?  25 A   1984 I remember I had one spring -- one spring bear  2 6 hunter.  His name was Meham who I took to Chipmunk  27 strip again.  And again we hunted both Foster Creek  2 8 and Chipmunk.  29 Q   The Chipmunk Creek strip appears to be close to the  30 right of way of B.C. Rail?  31 A   Yes, it is.  32 Q   Can you tell his lordship how far the rail is laid and  33 if you ever saw people use the rail to --  34 A   Okay.  The rail is laid all the way -- okay, I will  35 describe this.  The north portion of the strip just  36 past it is a little hill.  It is very distinctive.  37 When you come onto land you can see it right away.  38 The rail is laid right up to that little knoll right  39 up to it and it ends right there.  Now, what was the  40 other question?  41 Q   Have you ever seen people use it?  42 A   I have seen -- there were some people in hard hats.  43 Like, you know, hard hats.  They were surveying, you  44 know, from the railroad.  They came by a little  45 speeder just to look around one year.  To tell the  46 truth now, I'm not really too sure when it was even.  47 Q   Okay, that's -- in effect, you've seen the B.C. Rail 18490  I. Steciw (For Province)  In chief by Mr. Goldie  1 laid to that point, and that is the end of the steel?  2 A   That's the end of the steel.  3 Q   And you've seen a speeder up to that point?  4 A   That's right.  5 Q   Now, in --  6 THE COURT:  Just once or frequently?  7 A   You know -- no, I think it was either once.  Once I  8 remember for sure, but it could have been twice.  9 MR. GOLDIE:  10 Q   All right.  Now, I think you've referred to the spring  11 of 1984.  12 A   Yes.  13 Q   What about the fall?  14 A   Okay.  The fall of 1984.  Oh, yes, I took a hunter by  15 the name of Jake Sauers to Kuldo for a goat hunt.  And  16 we again -- well, we actually hunted just the southern  17 portion of the mountains from Kuldo Lake that year.  18 He was a man who was actually very afraid of heights.  19 This made goat hunting very complicated for us and for  20 him.  So then later on he -- after about three or four  21 days of a ten-day hunt, he asked us if we could get  22 him somewhere where the fishing is good.  You see  23 there is no fish in Kuldo Lake.  I never was able to  24 catch a fish and never saw fish rise in Kuldo Lake.  25 Anyhow, so then we flew into Slamgeesh where he fished  26 and had a really good time.  27 Q   In 1984, spring or fall, and apart from the  28 description you've given of the B.C. Rail people, were  29 there that year or another year --  30 MR. RUSH:  He didn't say B.C. Rail people.  31 MR. GOLDIE:  I thought he said surveyors.  32 MR. RUSH:  He said he saw people with hard hats on.  They were  33 surveyors and he saw them come into speeder.  34 A   Just so there is no lack of clarity on this, these  35 people were from -- I understand it from surveying --  36 just surveying the tracks.  These were railroad people  37 from what I understand.  Like engineers from what I  38 understand in hard hats.  They were white people,  39 that's all.  40 Q   Well, whoever, did you see in 1984 any sign of native  41 activity?  42 A   No, sir.  43 Q   Now, I want to go on to 1985.  44 A   Excuse me, that wasn't quite all the activity in 1984.  45 Q   All right.  Please complete that.  46 A  What happened was that I was -- there were four  47 hunters from -- I think three of them from Germany 18491  I. Steciw (For Province)  In chief by Mr. Goldie  1  2  3  4  5  6  7  8  Q  9  10  A  11  Q  12  THE COURT  13  A  14  Q  15  A  16  Q  17  18  19  20  21  A  22  Q  23  A  24  25  Q  26  27  A  28  Q  29  A  30  Q  31  32  33  A  34  Q  35  36  37  38  A  39  Q  40  41  A  42  Q  43  A  44  45  46  47  any, one from Switzerland that cancelled.  So I was  left with two weeks or over that with more or less  nothing to do.  So I thought, boy, this is great.  I  will go hunting myself.  So I took a friend of mine by  the name of Bob Hilborn.  We hunted the Slamgeesh Lake  area and also Canyon Lake.  And here I shot a moose  for my own meat consumption because I --  You mentioned Canyon Lake a couple of times, but I  don't think it is identified in the map.  This is Canyon Lake.  And that's number 13, is it?  13.  :  14.  11, 12.  Whatever you like.  Here is Canyon Lake.  What number are you giving it?  14.  14.  Thank you.  Before you return to the witness box,  I notice that there appears to be in your guiding area  towards the west there just outside the solid black  line for the land claims boundary the Swan Lake area.  Did you ever take people in there?  Oh, yes.  What areas did you take them to in that area?  The Swan Lake itself, actually.  This was specifically  for grizzly bear hunting and fishing.  Yes.  Could you identify Swan Lake with a number,  please.  Just a second.  With a number 15?  15.  Okay.  Did you see any sign of native activity, or did you  run into any native peoples in that area, the Swan  Lake area?  No, I didn't.  All right.  Let us return to the chronology.  I am not  sure if I asked you if you saw anybody in the 1984  area in this last period that you described between  yourself and Mr. Hilborn.  Did you see anybody?  No, we didn't.  1985, can you describe the activity.  Was there any  spring hunting that year?  I don't think so.  How about the fall?  I had a big group.  I don't remember all their names,  but I had a few hunters from Germany and Switzerland.  We hunted Slamgeesh Lake and the areas that I have  described.  We have hunted Canyon Lake, I believe.  Yes, we did for sure. 18492  I. Steciw (For Province)  In chief by Mr. Goldie  1 Q   What about Kuldo?  2 A  And Kuldo.  3 Q   Any signs of activity or did you meet any native  4 peoples in that year?  5 A   No.  6 Q   What period of time would be covered in the fall of  7 1985 from what you've just described?  8 A   I would -- well, all of September anyway.  9 Q   Right.  Now, in 1986 I think you his -- I now want to  10 revert to your airplane.  11 A   Okay.  12 Q   In 1986 did you acquire a new type of airplane?  13 A   Yes, I did.  The reason for that was this, that as you  14 might know by looking at the map there are a number of  15 very, very small lakes.  I wanted to get more of a  16 STOL potential.  In other words, short take off and  17 landing potential.  Especially on floats so that I  18 could land and take off and explore much more of the  19 country than say a 185 would offer.  A 185 is an  20 excellent aircraft, but it is not as STOL as some.  So  21 I purchased a highly modified machine.  It was  22 basically what is called a PA12 Piper.  PA12 with a  23 very large engine and modified wing that really suited  24 the ticket.  That was in 1986.  That was with a  25 specific thought in mind of really, you know,  26 investigating for future camps, landing at every  27 single lake and exploring what I could possibly could  28 because I thought of enlarging my operation a little  29 bit.  30 Q   Did this aircraft enable you to fly more slowly than  31 your previous one?  32 A   Yes, the stall speed was very slow.  It was very good  33 for that purpose.  34 Q   When you say stall that time, that is S-T-A-L-L, is  35 it?  36 A   Yes, that's right.  37 Q   And STOL before is S-T-O-L?  38 A   S-T-O-L, short take off and landing.  39 Q   Now, I want you to describe what you did with this new  40 aircraft in 1986.  And, again, let us approach it from  41 a chronological basis.  42 A   I began flying in those parts of my area that I  43 thought were either marginally unsafe or totally  44 unsafe with a 185.  I explored the headwaters of the  45 Mosque.  I have explored some of the Nass drainage  46 portion of my guiding area near Kwinageese River.  I  47 can point this out later on in the map.  Near Yellen 18493  I. Steciw (For Province)  In chief by Mr. Goldie  1 Lake.  I have explored and landed and made different  2 camps in different places, so to say -- and if you  3 care to know the details I will tell you specifically.  4 Q   Well, there are a couple of names there that I don't  5 think we have -- well, let me ask you this, amongst  6 the areas that you explored did they include Barker  7 and Cutfoot Creeks?  8 A   Yes.  I flew Barker and Cutfoot Creeks in the country  9 rather carefully because I thought it was a very  10 attractive area to kind of set up camps.  There are  11 three tiny little lakes at the headwater of Cutfoot  12 Lake that I thought -- I flew many, many times.  I  13 tried to figure it out and size it up whether it was  14 safe to land such an aircraft, and more than that to  15 take off with people.  16 Q   Mh'm.  17 A  And, you know, I was very careful in a sense because I  18 was flying under all kinds of conditions with winds,  19 you know, from different directions and so forth.  I  20 really thought that it was marginal so I decided to  21 back off of that one.  But I did really in detail  22 examine Barker and Cutfoot.  And, in particular,  23 Cutfoot Creek.  24 Q   I just want to get the rest of the names.  Then I am  25 going to ask those that have not been identified to be  2 6              marked on the map.  27 A   Okay.  28 Q   Can you recall any other areas that you explored, and  29 especially those at which you may have built camps or  30 trails?  31 A   Yes.  Essentially, though, to put it in a most general  32 terms I tried to essentially see and explore every  33 valley in the area.  Now, I know it is impossible to  34 know in great detail because the area was so vast, but  35 that was my intent.  Now, I did concentrate on a few  36 places.  Cutfoot Creek, as I have mentioned to you,  37 and Barker Creek area.  38 Q   Yes.  39 A   The headwaters of the Mosque.  40 Q   Yes.  41 A  Which essentially is a so-called Bird Flats, Bird Hill  42 Flats I think it is called because that is a  43 particularily attractive area.  An unnamed lake which  44 we have called just for lack of a better name Skeena  45 Lake.  4 6 Q   Mh'm.  47 A   I have flown very meticulously and low in behind to 18494  I. Steciw (For Province)  In chief by Mr. Goldie  1  2  3  4  5  6  Q  7  8  A  9  10  11  12  Q  13  14  A  15  16  17  18  19  Q  20  A  21  Q  22  23  A  24  25  26  27  Q  28  A  29  30  Q  31  A  32  33  34  35  Q  36  A  37  38  39  40  41  42  43  Q  44  THE COURT  45  A  46  THE COURT  47  A  see the underbrush with the potential for camps.  Kwinageese, that part of Kwinageese is in my guiding  area.  Also a name that of a lake that is unnamed  which has a boomerang shape to it which we call  Boomerang Lake.  Just pausing there, can you go to the map and see how  many of these you can identify?  First of all, that lake at the headwaters of the  Mosque I also called it High Lake because you can't  find a name.  In fact, you can't find it on this map  you have to get a different map.  Just put, I think it is number 16, in the general  area.  All right.  It is almost at the border between me and  a guide by the name of Maurice Pollard.  The next area  down named here Robinson.  Okay.  This would be  approximately here, something like this, a lake here.  And this is number?  16.  16.  And that is your estimate of a location of what you  called High Lake?  That's right.  Actually, I have found out since that  the commercial pilots call it Twin Lake because there  is another little round lake just beside it.  It is  just out of my area by a few yards.  All right.  Okay.  What I called Skeena Lake, for lack of a better  name, is this lake over here.  I will put a --  17.  17 on it.  And this is essentially on the east -- on  the eastern side of Skeena between -- essentially  between Chipmunk strip or between Chipmunk Creek and  Mosque Creek.  Right.  Now, also I flew to Barker, like Barker Creek.  But  like I am saying, particularily Cutfoot.  And I don't  know, I can't make out all of these lakes here.  But  we go by the name here, Cutfoot.  Well, there is three  lakes here actually you can see them.  There is one,  two, three.  So we will put this general area in here  and name that 18, is it?  17, I think.  :  18.  I'm sorry, Your Honour.  :  18 is Cutfoot?  18 is Cutfoot, yes.  Cutfoot and Barker shall we call 18495  I. Steciw (For Province)  In chief by Mr. Goldie  1  2  THE COURT  3  A  4  5  6  7  8  9  10  11  Q  12  THE COURT  13  A  14  15  Q  16  A  17  Q  18  19  A  20  21  22  23  24  25  26  27  28  Q  29  A  30  31  Q  32  A  33  34  35  Q  36  37  A  38  Q  39  A  40  41  42  43  44  45  46  47  it together, is that okay?  :  Yes.  I will put Barker the next one down there, that is 18.  I actually flew quite a bit in the Vile Creek area.  There is a really very interesting slide here down by  Vile Creek that I thought I could use for spring bear.  I got familiar with that, but I didn't really come to  that place.  But it is there.  I'm not sure it's  important now.  I will just put slide.  It is roughly  about say here.  That's 19, is it?  19.  :  What is 19, please?  19 is just a nice slide that looks very likely for  spring bear to be there.  This is off or on Vile Creek?  This is just south west off Vile Creek.  Yes.  All right.  Now, you also mentioned something  which you said you called Boomerang Lake?  Yes, I'm coming to that.  Let's see, it is a very --  yes, that's it right here.  There is no name to it, so  I just call it Boomerang Lake, and I suppose 20.  And  I did establish camp here for moose and black bear and  did guide out here in 1986.  Also I landed -- actually  explored the Kwinageese River.  That is over here,  that portion of it is in my area.  I couldn't land, of  course, on that river.  It is a very small river.  Kwinageese River, number 21.  Yes, all right.  And I also explored Yellen Lake.  It is a bigger lake.  Here we are right here.  22, Yellen Lake.  All right.  I also flew a bit of the Brown Bear Lake.  I wasn't  really interested in that country because very close  to that there is logging, so I didn't bother.  Now, Doctor, you've described fairly exstensive, I  will call it reconnaissance.  Mh'm.  Over what period of time did that --  Okay, I began according to my, you know, the logs of  the aircraft, of this particular aircraft, I think the  first flight I took on this reconnaissance was June.  Now, I remember I had in 1986 two weeks where I had, I  think -- I forget exactly, but let's say -- well, it  is very close.  It is maybe six or seven guides, no  less than five certainly doing nothing but trails and  camps and so forth.  I was flying the whole two weeks.  First two weeks in September steady, like every day 18496  I. Steciw (For Province)  In chief by Mr. Goldie  1  2  3  Q  4  5  A  6  Q  7  A  8  Q  9  10  11  A  12  13  Q  14  15  16  17  A  18  Q  19  20  A  21  22  23  THE COURT  24  A  25  THE COURT  26  A  27  THE COURT  28  A  29  30  31  THE COURT  32  A  33  34  35  36  37  38  39  40  Q  41  A  42  43  44  Q  45  A  46  47  Q  almost, you might say virtually, and, of course,  before that.  It started I think in June.  All right.  Now, just pausing there, you said you had  five guides.  You mean you had five employees?  Yes.  Who were working on the ground?  Yes, that's right, sir.  And you started the reconnaissance aspect in June, and  do I understand that you carried that through into  September?  That's right.  But it was particularily intense the  first two weeks of September.  Right.  Now, I want to get a sense of the distinction  between flying over and landing and actually  constructing camps and trails.  Am I correct that in  this year there were new camps and trails established?  Yes.  This is a main chief year where this happened.  Can you tell his lordship which of these fall into  that category?  This lake here, shall we call it Twin Lake because  that is what the commercial pilots call it.  Camp  established including full exploration of the area.  :  It doesn't have a number, does it?  16.  :  Twin Lake?  Yes.  :  I have got that as Mosque Lake.  Yes, I referred to -- I didn't know the name of the  lake, so I call it myself Mosque since it is at the  headwaters of the Mosque.  :  Yes, all right.  And it is very high, so I sometimes called it High  Lake.  But the name that the commercial pilots call it  there is Twin Lake.  And another camp at number 17  which is Skeena Lake, so called by me for lack of a  better name.  There is some trails there that we have  made.  And also on Boomerang Lake I have established a  camp primarily for moose and black bear and trail work  there.  Mh'm.  And I think, but I'm not sure, that it is at Swan Lake  we have made a camp at one of the islands. Trail work  was minimal.  Swan Lake is way over in the west, is it?  South of there.  Swan Lake is right over there.  South  of there.  And there is a number you have given it? 18497  I. Steciw (For Province)  In chief by Mr. Goldie  1 A   15.  Excuse me, I had better put my glasses on.  2 Q   All right.  Now, that completes then the  3 identification of those locations where in 1989 of you  4 established facilities from which you guided clients?  5 A   Yes.  6 MR. GOLDIE:  Would this be a convenient time?  7 THE COURT:  Yes, I think it is a convenient time to adjourn.  8 Thank you.  I leave it to counsel to make suggestions  9 if you think we should sit longer.  Thank you.  10 THE REGISTRAR:  Order in court.  Court stands adjourned until 10  11 o'clock tomorrow.  12 (PROCEEDINGS ADJOURNED AT 4:00)  13  14 I hereby certify the foregoing to  15 be a true and accurate transcript  16 of the proceedings herein to the  17 best of my skill and ability.  18  19  2 0    21 LISA FRANKO, OFFICIAL REPORTER  22 UNITED REPORTING SERVICE LTD.  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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