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