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Supreme Court","attrs":{"lang":"en","ns":"http:\/\/purl.org\/dc\/terms\/creator","classmap":"dpla:SourceResource","property":"dcterms:creator"},"iri":"http:\/\/purl.org\/dc\/terms\/creator","explain":"A Dublin Core Terms Property; An entity primarily responsible for making the resource.; Examples of a Contributor include a person, an organization, or a service."}],"DateAvailable":[{"label":"Date Available","value":"2013","attrs":{"lang":"en","ns":"http:\/\/purl.org\/dc\/terms\/issued","classmap":"edm:WebResource","property":"dcterms:issued"},"iri":"http:\/\/purl.org\/dc\/terms\/issued","explain":"A Dublin Core Terms Property; Date of formal issuance (e.g., publication) of the resource."}],"DateCreated":[{"label":"Date Created","value":"1988-02-12","attrs":{"lang":"en","ns":"http:\/\/purl.org\/dc\/terms\/created","classmap":"oc:SourceResource","property":"dcterms:created"},"iri":"http:\/\/purl.org\/dc\/terms\/created","explain":"A Dublin Core Terms Property; Date of creation of the resource."}],"Description":[{"label":"Description","value":"In the Supreme Court of British Columbia, between: Delgamuukw, also known as Albert Tait, suing on his own behalf and on behalf of all the members of the House of Delgamuukw, and others, plaintiffs, and Her Majesty the Queen in right of the Province of British Columbia and the Attorney General of Canada, defendants: proceedings at trial.","attrs":{"lang":"en","ns":"http:\/\/purl.org\/dc\/terms\/description","classmap":"dpla:SourceResource","property":"dcterms:description"},"iri":"http:\/\/purl.org\/dc\/terms\/description","explain":"A Dublin Core Terms Property; An account of the resource.; Description may include but is not limited to: an abstract, a table of contents, a graphical representation, or a free-text account of the resource."}],"DigitalResourceOriginalRecord":[{"label":"Digital Resource Original Record","value":"https:\/\/open.library.ubc.ca\/collections\/delgamuukw\/items\/1.0019344\/source.json","attrs":{"lang":"en","ns":"http:\/\/www.europeana.eu\/schemas\/edm\/aggregatedCHO","classmap":"ore:Aggregation","property":"edm:aggregatedCHO"},"iri":"http:\/\/www.europeana.eu\/schemas\/edm\/aggregatedCHO","explain":"A Europeana Data Model Property; The identifier of the source object, e.g. the Mona Lisa itself. This could be a full linked open date URI or an internal identifier"}],"FileFormat":[{"label":"File Format","value":"application\/pdf","attrs":{"lang":"en","ns":"http:\/\/purl.org\/dc\/elements\/1.1\/format","classmap":"edm:WebResource","property":"dc:format"},"iri":"http:\/\/purl.org\/dc\/elements\/1.1\/format","explain":"A Dublin Core Elements Property; The file format, physical medium, or dimensions of the resource.; Examples of dimensions include size and duration. Recommended best practice is to use a controlled vocabulary such as the list of Internet Media Types [MIME]."}],"FullText":[{"label":"Full Text","value":" THE THE MR. 9 10 11 THE 12 MR. 13 THE 14 15 MR. 16 17 18 19 20 21 THE 22 MR. 23 24 2 5 MR. 2 6 MR. 27 THE 2 8 MR. 29 30 31 THE 32 MR. 33 34 MR. 35 THE 3 6 MR. 37 38 39 4 0 THE 41 MR. 42 43 44 45 46 47 3425 12 February 1988 Vancouver, B.C. REGISTRAR: Order in court. In the Supreme Court of British Columbia; Friday, February 12, 1988. Calling Delgamuukw versus Her Majesty the Queen at the bar, my lord. COURT: Do counsel have an agenda? GRANT: My lord, I can advise the court as to what I anticipate would be dealt with. There was -- COURT: Welcome back, Mr. Grant. GRANT: Thank you, my lord. COURT: Give me your shopping list in a sense of where we are going. GRANT: Yes. I would -- there are a number of minor procedural matters. One is the filing of a seating list, seating diagrams, which would form part of Exhibit 2, the document book of Gyologyet, and that was agreed to last spring that the seating charts would be modified to match her evidence. COURT: Oh, all right. GRANT: And they have been delivered to both Mr. Plant and Ms. Koenigsberg. Mr. Plant indicated he had no objection to them. I've not heard that from -- MACAULAY: We have no objection. GRANT: I assumed that there wasn't an objection. COURT: Exhibit 2 you say is a document book for Gyologyet. GRANT: The document book for Gyologyet, yes. And there is a tab in Exhibit 2 which is the seating chart, and I would ask that this be incorporated into that tab? COURT: Tab 2. GOLDIE: My lord, I think the old one should stay because the witness was examined with respect to it. GRANT: Oh, yes, of course. COURT: This was at tab 2, Exhibit \u2014 GRANT: I believe that that exhibit was ultimately put in Exhibit 2. And the charts which I provided to my friends are the seating charts for funeral feast hosted by Lax Gibuu Gitanmax. COURT: I am sorry, we don't have a speller today. GRANT: L-a-x first word, G-i-b-u-u, G-i-t-a-n-m-a-x. I will provide a copy of this to the reporter so she can get a spelling. The second one of the charts was a seating diagram for a funeral feast hosted by Giskaast at Kispiox, and the third was a seating diagram for a headstone feast hosted by Lax Seel in Gitanmax. And these are the seating charts that THE COURT: MR. GRANT 3426 have been delivered to my friends and they have reviewed them. All right. That will be part of tab 2 of Exhibit 2? (EXHIBIT 2 tab 2 - SEATING CHARTS) Yes. And that will be my recollection, although we will review the transcript, was that Exhibit 2 was actually marked as an exhibit proper after the commencement of Mary Johnson's evidence. It was an oversight, I believe. COURT: All right. GRANT: The second matter was -- a procedural matter was the commission evidence of Florence Hall. My lord, Florence Hall is the only Wet'suwet'en witness who's given commission evidence where the commission transcript has not yet been filed with the court. And that is in two volumes together with a series of exhibits going from exhibits number 1 through to 10 and I have exhibit -- at the present time, Exhibits 1, 3, 4, 5, and 6. And I will -- and Mr. Plant has delivered to me certain of the other exhibits which were in his custody and it appears that I thought I brought them down but I haven't. I will file those subsequently. I will arrange for delivery of those, and also Exhibit 2 does not seem to be in this file but I will arrange for it. THE COURT: We have tendered that commission evidence, are you, and those exhibits now as an exhibit at this trial? GRANT: Yes. COURT: I think we have been marking commission evidence as exhibits. GRANT: In the same format as the other exhibits. COURT: All right. Then the two volumes of evidence and those exhibits will be the next exhibit, Madam Registrar. REGISTRAR: Commission evidence of Florence Hall, volume 1 and volume 2. COURT: What is the exhibit number, please? REGISTRAR: It will be Exhibit 239. It doesn't say volume 1, my lord. THE COURT: Beg your pardon? 43 MR. GRANT: It doesn't say volume 1 or volume 2. They are dated 44 and the October 13, 14 will be volume 1 -- October 45 13, 14, 15 and 16th, and volume 2 was October -- or 4 6 November 2, 3 and 4. 4 7 THE COURT: Thank you. 9 10 11 12 THE 13 MR. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 2 29 3 0 MR. 31 THE 32 33 MR. 34 THE 35 36 37 THE 38 39 THE 4 0 THE 41 42 3427 1 THE REGISTRAR: That will be volume 2 and that will be Exhibit 2 240. 3 MR. GRANT: And the exhibits I would ask be lettered after on 4 the same exhibit number. 5 THE COURT: Yes. They will be \u2014 6 MR. GRANT: And they are stamped on the back. 7 THE COURT: Yes. They will be Exhibit 239-1, et cetera. 8 MR. GRANT: Yes. THE REGISTRAR: -1, -2, -3, -4, and the affidavit of Florence Hall. COURT: No, I don't think so, Madam Registrar. I think they will be -- they will be given the same tab number to this exhibit as they were exhibits at the commission, so you only have 1, 3, 4, 5 and 6 there. REGISTRAR: I am sorry. COURT: Thank you. GRANT: And the others will be filed subsequently and that is Exhibit 239, is it? REGISTRAR: 239, volume 1. GRANT: And possibly volume 2 should be marked as 239 -- COURT: We have already marked it as 240. GRANT: 240, thank you. (EXHIBIT 239 - COMMISSION EVIDENCE OF FLORENCE HALL VOL. 1) (EXHIBIT 240 - COMMISSION EVIDENCE OF FLORENCE HALL VOL. 2) GRANT: Now, there were two other outstanding matters, my lord, which I understand have been raised partially in my absence and also in my presence. One is the argument with regards to the relevance of certain questions raised last week actually on February 2 by Ms. Mandell, and the issue came out in the context of questioning she had relating to the impact of the CNR Railway on beaver habitat in Wah tah k'eght's territory as I recall. COURT: Yes. But the issue is much broader than that. GRANT: The issue is broader than that and Mr. Plant raised the issue and I will refer to how he's raised it as I recall, at page 3017 and 3018, and he objected to the question on the grounds of relevance and I am quoting from him: \"I do so on the basis that no -- no activity by the Canadian National Railway or its 9 10 11 THE 12 13 14 15 THE 16 THE 17 MR. 18 19 THE 2 0 MR. 21 THE 22 MR. 23 24 25 26 27 28 29 3 0 MR. 31 32 33 34 35 36 37 38 39 THE 4 0 MR. 41 42 43 44 45 46 47 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 MR. 3 6 MR. 37 38 MR. GOLDIE: 39 4 0 THE 41 MR. THE GOLDIE: GRANT: 42 4 3 MR. 44 45 4 6 THE 4 7 MR. COURT: GOLDIE: COURT: GOLDIE: COURT MACAULAY 3428 predecessor, or for that matter, the owner of the Trout Creek Store can, in my submission, be relevant in this proceedings. It's not the subject of any claim by the plaintiffs in the prayer for relief, nor are the persons -- in this case the railway and the owner of the Trout Creek Store, and for that matter Mr. Storey and his ranch, farm -- they are not parties to this litigation, and it's not my understanding that the plaintiff's claim for declaration of entitlement to compensation is based, or can be based on the actions of third parties.\" The court commented on this, and I will deal with the comments in further detail, but at 3025, your lordship said: \"I think the legal question is the relevance and therefore the admissibility of the consequences of alienation on the part of the Province and railway type activities on the part of the Federal Government.\" Now, that was one aspect and I was prepared to deal with that. Before moving into that, there was another matter which depending on one's perspectives -- well, in this scheme of things probably one can call it minor, but that is the outstanding application under Rule 40 (5) re: original transcripts, and Mr. Rush and I discussed it and I had the correspondence with Mr. Mackenzie and I can inform the court of that after dealing with this main argument this morning. There are a couple of other housekeeping matters. Oh, Mr. Goldie indicates he has some other housekeeping matters. If we are sort of drawing up a shopping list, my lord, before we start. Yes. Mine includes timetable. Yes. Mr. Plant will -- wishes to raise a question with respect to the affidavit of Bazil Michell, and those are the two that I wish to draw. Mr. Macaulay? I raised on February 2 the matter of the 3429 1 pleadings -- the issues regarding Canada's 2 jurisdiction over railways and transportation. 3 That's to be found at page 3018. 4 THE COURT: He mentioned the Smithers Airport. 5 MR. MACAULAY: I mentioned the Smithers Airport, too. 6 THE COURT: Are there other airports as well as Smithers within 7 the claimed territory? MACAULAY: Not that I know of. GRANT: Yes, there are. COURT: They fall in the same category. MACAULAY: Equal. They would fall in the same category. Small airfields, I don't know if you'd call them airports. COURT: I think your client regards them all in the same category. MACAULAY: Yes. Airstrips. COURT: All right. MACAULAY: That's the initial \u2014 I have addressed the question of the miniature series of maps. COURT: Yes, all right. MACAULAY: And the matter of the production of certain documents relied on by expert witnesses, the plaintiff's expert witnesses, which we have asked for more than once and have not received them. Those are our items on the shopping list. All right. Well, I have one additional one which may be included in the foreground, but I don't really think it is, and that is the nature of the plaintiff's claim. My lord, maybe I can speak to just that, the one that my friend raised. I maybe glossed over it. I focused on Mr. Plant's objection which elicited Mr. Macaulay's comments and I understood that there are three components that I understand that have to be dealt with. One is what Mr. Plant raised; the other is Mr. Macaulay's concern, and the third is the concern you just raised. That -- I see all of that as part of this argument. COURT: All right. GRANT: And also there was another issue I overlooked and that was the question of venue, my lord. All right. Do you want -- are you going to go first, Mr. Grant? GRANT: Yes. I am prepared to do so, my lord. COURT: All right. GRANT: My colleague, Mr. Rush, will deal with the issue of venue and also will deal with some of the issues 8 MR. 9 MR. 10 THE 11 MR. 12 13 14 THE 15 16 MR. 17 THE 18 MR. 19 2 0 THE 21 MR. 22 23 24 25 2 6 THE 27 28 29 3 0 MR. 31 32 33 34 35 36 37 38 39 THE 4 0 MR. 41 42 THE COURT 43 4 4 MR COURT: GRANT: 45 THE 4 6 MR. 47 3430 1 raised by my friends. 2 THE COURT: You're going to start with this question of 3 relevance, are you? 4 MR. GRANT: Yes, my lord. 5 THE COURT: You say there are three components, and they are 6 consequences of alienation. 7 MR. GRANT: Yes, have been focused as three distinct issues. 8 This came out of the comments made by this 9 honourable court in both June and July of 1987 and 10 February of 1988, on February 2 specifically. And 11 it is our submission, my lord, that these are three 12 distinct albeit inter-related issues. The first is 13 the jurisdiction of the hereditary chiefs over the 14 territory, and the consequences of the transfer of 15 interests from the Provincial Defendant to third 16 parties, for example, farmers and logging companies 17 and the impact of such transfers on the chief's 18 claim. And that is the issue raised by Mr. Plant's 19 objection on relevance. The second issue is the 20 claims against the Federal Crown, and the third is 21 the plaintiff's claim in the pleadings for ownership 22 and jurisdiction over the territory. 23 Now, my lord, before dealing with each of those 24 areas, I wish to re-affirm or to refer the court to 25 the prayers for relief that are in our Statement of 26 Claim and, in particular, as of course the court 27 knows, this is at page 14 of our -- I am sorry, page 28 17 of tab 4 and, as the court knows, these are -- 29 the first claim of course and the first category, 30 the first six pleadings are regarding content of 31 aboriginal rights and of course the claim is for a 32 declaration of a right to ownership and jurisdiction 33 over the territory. I would focus then on the 34 declaration sought under 3, 4, 5 and 6. Under 3 35 that the plaintiff's rights of ownership and 36 jurisdiction within the territory include, and there 37 is a categorization of the inclusions, the right of 38 use, the right to harvest, the right to manage, the 39 right to conserve, and the right to transfer the 40 land to natural resources, and the right to make the 41 decisions in relation thereto. The fourth 42 declaration defines or sets out the -- an inclusion 43 of what jurisdiction -- the jurisdiction claim is 44 and that is the right to govern the territory, 45 firstly; to govern themselves, secondly; and to 46 govern the members of the house as represented by 47 the plaintiffs. And then it describes how, and that 3431 1 is in accordance with the Gitksan and Wet'suwet'en 2 laws administered through the Gitksan\/Wet'suwet'en 3 political, legal and social institutions as they 4 exist and develop. And the fifth one of course is 5 the declaration of rights to ownership and 6 jurisdiction over the territory includes the right 7 to ratify or otherwise refuse to ratify land titles 8 or grants issued by the Defendant Province after 9 October 2, '84, and licences, leases and permits 10 issued by the Defendant Province at any time without 11 the plaintiff's consent. The sixth one is, I would 12 submit, very broad and -- but very open and that is 13 the declaration that the aboriginal rights of the 14 plaintiff include ownership and jurisdiction over 15 the territory -- including ownership and 16 jurisdiction over the territory are recognized and 17 affirmed by section 35 and, of course, with that we 18 will be seeking the court's interpretation having 19 the body of evidence before the court of what this 20 aboriginal right means to the Gitksan and what 21 the -- what section 35 means to the Wet'suwet'en. 22 The other claim that is of relevance to refer you 23 to is claim 12, and that of course is the 24 declaration that the plaintiffs are entitled to 25 damages from the Defendant Province for wrongful 26 appropriation and use of the territory by the 27 defendant or by its servants, agents or contractors 28 without the plaintiff's consent. 29 Now, my lord, and it is in that background that I 30 want to deal with the first -- with all three of the 31 points but the first point about the chief's 32 jurisdiction and the consequences of land transfers 33 and evidence of loss. And I refer of course to Mr. 34 Plant's objections which I have already quoted to 35 the court on February -- his objections on February 36 2, and I would summarize it to be that it was 37 whether it was relevant for the court to hear 38 evidence of the effect of the activity of that third 39 party on the territory. And his actual objection is 40 at page 3017 and 3018, and I won't repeat it, I have 41 already said it to the court. And then although 42 that particular issue with respect to the conduct of 43 the CNR, Mr. Plant raised the broader issue. Now, 44 the court raised it on page 3023 that: 45 46 \"What it really comes down to, is it not, is 47 the question of consequences? If the 3432 1 Wet'suwet'en have a right to govern the 2 territory, transcending their right of Canada 3 to authorize the construction of railroads, 4 then you win it seems to me, and do 5 consequence matter?...if your rights, the 6 plaintiffs right to govern their territory 7 is subject to Canada's constitutional 8 jurisdiction, then lines of steam or railway 9 I think they call it in the Constitution, then 10 you lose the game. Do consequences matter?\" 11 12 And then the court went on to say: 13 14 \"I think the legal question is the relevance 15 and therefore the admissibility of the 16 consequences of alienation on the part of the 17 Province and railway type activities on the 18 part of the Federal Government.\" 19 20 And at 3026, the court stated: 21 22 \"As I said before, if the Province can lawfully 23 alienate forest land either in fee or for 24 logging... 25 26 And I think this is quite important how you describe 27 it: 28 29 \"And it seems to me that whether that's clear 30 cut or selective logging or single blade of 31 grass, to go back to the trespass cases, 32 then it may not make any difference. It's 33 really a question of who has the power. And 34 the clash, it seems to me, or the contest is 35 between the alleged right of the Chiefs to 36 govern the territory, as opposed to the 37 alleged right of the Province to manage or 38 govern it in the way that each of them in 39 their respective ways are purported due in the 40 periods since the arrival of the whiteman in 41 British Columbia.\" 42 43 Now, my lord, the evidence -- 44 THE COURT: Mr. Grant, stop you to say that you shouldn't put 45 any particular stress or importance on the way I 46 frame those remarks because they were made without 47 any prior consideration at all and arose in the 1 2 3 4 5 6 7 8 MR. GRANT: 9 10 11 12 13 14 15 16 17 THE COURT: 18 MR. GRANT: 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 3433 nature of an objection which happens at trial and I was struggling to try and put some focus to the objection. I don't think you should, as I say, regard what I said in those passages as necessarily even correctly stated. I was trying to explore with counsel what the problem was that arose from the obj ection. Yes. My lord, I appreciate the comments and I want to be clear. The reason why I have referred to those is because I think that the court -- I think that where you did make those comments, albeit without previous consideration, that you have focused -- and it is how I think the focus should be on what the issue is on this relevance question. And that's why I am saying it was as good as I could say in terms of what the issue was. Lucky guess on my part. Yes. And in trying to deal with the argument, I felt that that was as good a way of explaining the two -- the concerns. Now, my lord, the evidence of the actual conduct of third parties on the territories which are the subject matter of the case is essential in our submission to explain how the chief's ability to exercise their rights of ownership and jurisdiction over the territory has been impaired and obstructed. The province, in their defence, at paragraph 14 state: \"...If the plaintiffs ever owned or exercised jurisdiction over the territory or exercised jurisdiction over the territory and the resources thereon, there under or there over in accordance with Gitksan or Wet'suwet'en laws or otherwise they do not now continue to do so.\" And that is a quote from after the first phrase in paragraph 14, that's at page 50 of the trial record. The plaintiff's claim on the other hand that: \"The defendant has wrongfully alienated land within the territory to other persons without the consent of the Plaintiffs or their ancestors.\" And this is a paragraph just a moment, my lord 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 2 8 THE COURT: 29 30 31 32 33 34 MR. GRANT: 35 36 37 38 3 9 THE COURT: 4 0 MR. GRANT: 41 42 43 44 45 46 47 3434 paragraph 75 at page 15, and then I -- \"As a result of the wrongful alienation by the Defendant third parties of the Plaintiff's interests in the territory, the Plaintiffs have been denied their rights and the right of ownership, including access and use of parts of the territory and the right to exercise jurisdiction over the territory.\" And in paragraph 77, the plaintiffs further claim that: \"As a result of the wrongful alienation to third parties and the wrongful utilization of the Territory by the defendant and\/or its grantees, licencees and leasees, the plaintiffs have sustained loss and damage.\" One of the declarations which I have already referred to you, declaration number 12, is a declaration of entitlement to damages for wrongful appropriation and use by the Province. In order to explain the effect of activity by third parties it is important to put in context how the third parties have acquired their permission from the Provincial Defendant. That is -- But isn't your friend seeking to prove that for you with his alienation project? He's saying we have made all these alienations either in fee or by some lesser estate, lease, licence, permit or otherwise, and he's saying this is what we've done and that's what you complain about. But what's important, my lord, is that the primary claim of the plaintiffs here is the claim of declaration of rights and the declaration of rights the plaintiffs are seeking -- aboriginal rights are seeking are ownership and jurisdiction. Yes. It seems to me you have joined issues there. Yes. And of course when one reads the pleadings of the defence that paragraph 14, when one hears the cross-examination which is the other arm of why this evidence is relevant, that the -- both the Province and the Federal Defendant have cross-examined the witness extensively as to the utilization of the resources on the territory and the enjoyment of the territory. And they have basically canvassed 3435 1 extensively the question of presence of plaintiffs 2 on the territory. 3 Now, my lord, with all due respect, we don't 4 assume that our friends have a motive to assist us 5 with the alienation project or mapping. The point 6 that they are raising is that the plaintiffs -- the 7 defendant has occupied, has been present, has been 8 on the territory through this alienation, but there 9 is a big difference here and that's where the 10 evidence of what actually happens on the ground is 11 important. 12 MR. GOLDIE: My lord, I don't want to interrupt my friend but I 13 don't think he is addressing Mr. Plant's objection. 14 We don't -- if the plaintiffs make a claim of 15 ownership and jurisdiction, we don't question the 16 relevance of the evidence of people who say, I 17 trapped on the territory. That is relevant. Mr. 18 Plant's objection, though, is on the question of 19 loss and that's made clear at page 3019. So it's 20 not the question of whether X was on the territory, 21 it is a question of whether there has been any 22 pecuniary loss experienced by the presence of the 23 corner store and that's not pleaded. There is no 24 pleading that claims damages in respect of that. 25 MR. GRANT: My lord, with respect, the relevance \u2014 26 THE COURT: Did I understand what you were saying, Mr. Goldie, 27 is that the loss if any that's plead is as a result 28 of the alienation of the corner store and not the 29 loss if any which results from the operation of the 30 corner store by the person who the alienation took 31 place? 32 MR. GOLDIE: To put it at its narrowest point, that was the 33 purpose of the objection. 34 THE COURT: Yes. 35 MR. GOLDIE: And I will make my submission on the question of 36 what the pleadings deal with, but I just didn't want 37 my friend to set up a straw man and knock it down 38 because we don't -- we accept his allegation of 39 ownership and jurisdiction. That's what all of this 40 evidence is all about, we understand that anyway. 41 THE COURT: Yes, all right. 42 MR. GRANT: Okay. Well, my lord, the point of it is and I was 43 going to move to another example because I think it 44 is -- as I think Mr. Plant referred to, he said 45 whether it is CN or the corner store. And I will go 46 to the example, of course, Mr. Storey's farm. Mr. 47 Storey, whether he puts up three silos on his farm 3436 1 within Wah tah k'eght's territory may not be 2 relevant, but what is relevant is whether or not the 3 Provincial Defendant obligated Mr. Storey to clear 4 enormous acreage on his land and what's equally 5 relevant is whether Mr. Storey did it, because, my 6 lord, if he left the land as it was when he arrived 7 and it continued to provide for example habitat for 8 moose and other game, there were no fences, this may 9 not have adversely affected Wah tah k'eght. In 10 fact, if he had done that, the fact of a transfer of 11 a piece of paper in Victoria or Prince Rupert may 12 have had absolutely no relevance to Wah tah k'eght 13 and no notice to him of what was going on. But if, 14 my lord, on the other hand as happened, he cleared 15 the land so that there was no moose habitat or 16 minimal moose habitat and no habitat left for 17 fur-bearing animals, this would have serious adverse 18 implications for Wah tah k'eght and occasions lost 19 to the plaintiffs. But what's equally important and 20 relevant is, it is when that happens on the land is 21 when the plaintiffs get notice of what is actually 22 happening, and all of these alienation maps that my 23 friends are submitting may have a bearing or no 24 bearing because it's what happens on the ground, not 25 what happens in the Land Titles Office that is what 26 is -- is how the people, the plaintiff's, see the 27 damage that they have sustained. 28 Now, what's more equally important is at the 29 same time as Mr. Storey, and I don't mean to pick on 30 him but just as an example because you've heard 31 evidence of Mr. Storey's farm, but at the same time 32 as he is clearing his land, my lord, he is erecting 33 fences and, at the same time, officers of the 34 Provincial Defendants such as Wildlife Officers are 35 restricting and restraining the plaintiffs from the 36 exercise of their authorities. And what happens, my 37 lord, is that that course of activity over the last 38 70 years is what is relevant to rebut the impact of 39 what my friends say has happened regarding the 40 alienations. And that is the reason for relevance. 41 It's not a question of -- of course as this court 42 recalls and I -- it was referred to on February 2, 43 it is not a question today of quantification of the 44 loss to Wah tah k'eght of those few acres or the 45 hundreds of acres of Mr. Storey's farm or the clear 46 cut, it is a question of what the impact is and the 47 denial by that conduct of the ability of Mr. -- of 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: 3437 Wah tah k'eght to exercise his authority on this territory. That is the relevance. But I guess what -- I am searching for a way through this piece of unchartered country and I guess the question -- no, I won't put the question yet. You go ahead. I will leave it for now. Now, to take another -- the other obvious example, that is a logging company obtained a tree farm licence within one of the chief's territories and if they did no logging on the territory, the impact on that chief or even the notice, as I call it, the actual notice, will be nonexistent or minimal. But if as we say will be demonstrated before this court the Provincial Defendant not only gives the tree farm licence to the third party but they require them not only to log but to clear cut log throughout the territory or risk the loss of their TFL, the consequential effect on the plaintiffs is very relevant. In other words, the Province, the Provincial Defendant, as part of its terms of leasing or otherwise giving interests in the territory of the chiefs, is encouraging and even enforcing activity which destroys the chief's ability to exercise their authority over the territory. And that, my lord, is the relevance and that's what ties the conduct of Westar Timber or Mr. Storey or innumerable other third parties to the Provincial Defendant. And it's where the Provincial Defendant has required them to do that. Now, similarly, my lord, if the conduct of third party such as CN, which the court has heard evidence of its destruction of beaver habitat and we'll hear evidence that it has destroyed fishing sites and villages, impairs the chief's ability to exercise authority over those portions of their territory, this is equally relevant in response to the defences raised in terms of the fact that the plaintiffs no longer exercise authority over the territory or jurisdiction. Now -- and it is in that context, my lord, of that conduct and that destruction of the plaintiff's ability to exercise authority that one must take into account as an example of another whole body that is being raised by the Federal Crown and that is the hereditary chiefs go to the coast and fish commercially. Now, my lord, taken in isolation, this evidence may suggest that the chiefs have left their 3438 1 territory to take resources from somewhere else, 2 have given it up. But when you put it in the 3 context of the destruction or alteration of the 4 chief's territories without their consent, it 5 demonstrates that this conduct is partially at least 6 a result of an economic and a social imperative. It 7 is a question of survival in other words. 8 Now, it is that course of activity by the 9 defendants coupled with those third parties who are 10 obligated by the defendants to certain things on the 11 territory. It is in that context that the plaintiff 12 has to analyse the conduct of the hereditary chiefs 13 and their exercise of authority over the territory 14 over the last 70 or 80 years. 15 My lord, the Provincial and Federal Defendant 16 allude to, through paragraph 14 of the defence and I 17 don't specifically raise it, the issue of -- an 18 issue of acquiescence or maybe even abandonment by 19 the plaintiffs. And they cross-examine extensively 20 on the plaintiff's conduct regarding their 21 territory, and it's -- if the plaintiffs that have 22 been denied the right to exercise jurisdiction 23 because of the destruction or alterations, that 24 subsequent conduct in our submission is relevant. 25 That -- when I say subsequent conduct, that -- I 26 mean the subsequent conduct of third parties after 27 they are issued the papers, the documents, the 28 leases, the licences, the permits, the title deeds 29 from the Provincial or the Federal Defendant. 30 Now, my lord, regarding the question of damages, 31 the issue of quantification is left, but the issue 32 of entitlement is before the court, and the measure 33 of Wah tah k'eght's loss certainly is the extent of 34 appropriation of his territory by third parties 35 under licences or leases, that is, under 36 authorizations of the defendants. But that is 37 secondary in our submission, my lord, to the 38 essential point of this evidence, the conduct of the 39 third parties to go to the issue of the attack on 40 the Gitksan and Wet'suwet'en way of life and their 41 society, and these consequences of why you see the 42 evidence that you see today which as I understand, 43 although not being in the court but reviewing the 44 transcripts, includes numerous photograph after 45 photograph of evidence of somebody else being on Wah 46 tah k'eght's territory for example. It's in the 47 context of the licences and the leases and the 3439 1 authorization of third parties operating under those 2 permits that the -- issued by the Federal and 3 Provincial Defendants and the requirements that they 4 have to do things including, in the plaintiff's 5 context at times, destroying the plaintiff's way of 6 life, the plaintiff's jurisdiction over the 7 territory, it is in that context that the evidence 8 is relevant of what they actually do. Because when 9 you look at these maps, you may see that there are 10 TFL's covering the entire scope of the territory, 11 but that doesn't really answer the question. The 12 question is what actually is happening. If there is 13 TFL's that where there is nothing happening, it is 14 not only not relevant to loss, the chief may not 15 even have notice of what's going on. Here I am 16 using notice in the terms of actual notice. 17 Now, those are my submissions with respect to 18 that and I would like to move into the claims 19 against the Federal Crown because it ties in 20 directly to what I have just submitted to the court. 21 My lord, as you may recall, the plaintiffs did 22 not start this court case against the Federal Crown. 23 The Province applied over the plaintiff's objection 24 and the Province's -- and the Federal Crown's 25 objection to them being joined as a party. That 2 6 went to the Court of Appeal, and the Court of Appeal 27 upheld the decision of Mr. Justice Trainor which I 28 wish to allude to in part. And given what I have 29 just said, before going to Mr. Justice Trainor's 30 point, is that no matter what our intent was 31 initially, the Federal Crown is here; they are to be 32 bound by the findings of fact of this court and 33 where they have authorized the conduct of third 34 parties and in fact required third parties to do 35 things such as destroy fishing sites or villages, 36 fishing villages which is evidence you will hear 37 regarding CN, or beaver habitat as you have already 38 heard, that evidence is relevant. Now, the Court of 39 Appeal referred to the first five declarations which 40 I have quoted to the court at the beginning of this 41 submission, and then they stated -- and I apologize, 42 my lord, I don't have the Court of Appeal's decision 43 with me, but basically it followed Mr. Justice 44 Trainor and said: 45 46 \"In their Statement of Claim, the plaintiffs 47 allege from time immemorial they have had the 3440 1 right to own and exercise jurisdiction over 2 the territory in question and to enjoy the 3 resources found on this property and that in 4 all this period they have in fact exercised 5 exclusive jurisdiction over the territory.\" 6 7 It is our submission, my lord, that the plaintiff's 8 position that the pleadings for a claim of ownership 9 and jurisdiction of the territory described in 10 Schedule A and B to the Statement of Claim includes 11 any territory claimed by the Federal Crown without 12 more, without further amendment and that we were 13 forced into that position at the time that the 14 Supreme -- this court, Mr. Justice Trainor of this 15 court, and the Court of Appeal upheld the fact that 16 the Federal Crown was a party to be bound by these 17 facts. Now, in his submission, Mr. Macaulay on 18 behalf of the Federal Crown states at page 3018, and 19 I believe he already alluded to this: 20 21 \"The plaintiffs, before they lead that kind of 22 evidence...\" 23 24 I believe referring to the CN evidence... 25 26 \"...ought to define in their pleadings exactly 27 in which direction they are going. Are they 28 seeking damages on account of railway activity 29 or are they seeking a declaration the railway 30 ought not to run?\" 31 32 Now, it appears from this comment that the Federal 33 Crown is unclear as to the extent and the scope of 34 the claim of the plaintiff's case. In order to make 35 this clear, we say that the conduct of the Federal 36 Crown in purporting to exercise authority over the 37 territory and alienate portions of the territory was 38 unlawful and contrary to the plaintiff's ownership 39 and jurisdiction. And I refer you to Mr. Justice 40 Trainor's decision of page 4, where he says, the 41 second -- first full paragraph after referring to 42 the fact that the defendant -- the Provincial 43 Defendant wanted the Federal Crown in at that stage 44 for -- in case of a set off in case damages were 45 payable, the Provincial Defendants said the Federal 46 Crown pays. And the court found of course that they 47 are not -- that this court is not entitled to award 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 MR. MR. MR. MR. GOLDIE: GRANT: GOLDIE: GRANT: 3441 damages against the Federal Crown due to the Federal Court Act and constitutional matters -- the Federal Court Act, I am sorry. However he says at page 4, the second -- first full paragraph: \"However the plaintiffs' claims are not clearly defined as relief sought only from the defendant without impingement on the interest of the Crown in Right of Canada.\" In fact counsel for the plaintiffs acknowledge that he's prepared and intends to give notice to the Attorney General of Canada under the Constitutional Question Act. And I believe the Constitutional Question Act is in the -- Constitutional Question Notice, I am sorry. It is not -- I am not going to refer to it in any event, but that notice was provided after Mr. Justice Trainor's decision. Now, then he goes on on page 5, my lord, at line 10: \"Surely, every issue that properly can be considered and determined in that hearing should be included. A second hearing covering much of the same evidence should be avoided if reasonably possible. At the same time, the rights of the plaintiffs in this action to have their specific claims adjudicated must be recognized. Counsel for the plaintiffs is generally concerned about questions of cost and timing.\" Now then, he says at the next paragraph on page 5. I Think my friend should read the next sentence. \"His case will involve evidence from many sources and some of that is now being taken on commission.\" And the next sentence. \"He is concerned that the thrust or focus of the plaintiffs' claim would be moved from ownership and jurisdiction to indemnity and money and he submits that he should not be required to be involved in the latter.\" Now, the point, my lord, is that as I have indicated 3442 1 the primary claim of the plaintiffs is the claim of 2 ownership and jurisdiction. The issue is the court 3 then went on to consider the eight areas on page 6 4 and I only refer you to number 7 as an example, \"the 5 rights of the Plaintiffs to ownership and 6 jurisdiction over the territory based on the 7 Constitution Act of 1982\". And as pled and as 8 notorious I believe now to this -- is known, of 9 course it is, that of course the Constitution Act of 10 1982 by section 52 or 51 I believe is the Supreme 11 Law of Canada. If that's the case and the 12 plaintiff's aboriginal right includes ownership and 13 jurisdiction over the territory, that finding of 14 fact -- if the court's finding of fact that the 15 plaintiffs are entitled to a declaration of 16 ownership and jurisdiction surely will have an 17 impact on the Federal Crown and that would have to 18 be -- although any enforcement of that right may 19 have to go to another court. 20 Now, it is in that context, my lord, that I am 21 saying that this re-statement of our position and 22 the statement of the position by Mr. Justice Trainor 23 and by the Court of Appeal in upholding him 24 clarifies that these findings of fact, including a 25 finding that whether it be CN or other persons 26 authorized by the Federal Crown, it is impinged on 27 the plaintiff's ownership and jurisdiction, those 28 findings of fact would be binding on the Federal 29 Crown. And just as what third parties authorized by 30 the Province have been obligated by the Province to 31 do is relevant, what the Federal Crown has obligated 32 third parties to do is equally relevant, and I have 33 already referred to the CN example. Now, it is 34 relevant that the court consider the conditions and 35 obligations that the Federal Crown has imposed on 36 third parties where those obligations have adverse 37 effects and leads to loss to the plaintiff's ability 38 to exercise their authority and jurisdiction over 39 the territory. 40 We concede of course that this court does not 41 have jurisdiction to make a damage award against the 42 Federal Crown as was conceded by the Provincial -- 43 the Province in their application. But this court 44 does have jurisdiction and the right to make 45 findings of fact against the Federal Crown and to 46 make declarations which will bind the Federal Crown 47 in subsequent proceedings. And of course neither 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 THE COURT: 22 23 24 2 5 MR. GRANT: 2 6 THE COURT: 2 7 MR. GRANT: 28 29 30 31 32 33 34 35 36 37 38 3 9 THE COURT: 4 0 MR. GRANT: 41 42 43 44 45 46 47 3443 the plaintiffs nor this court nor the Court of Appeal, and I won't speak for the defendants, but at least the plaintiffs do not wish to have to repeat the evidence adduced herein for a separate claim against the Federal Crown. Now, therefore we submit that it's -- that the issue is clear and that evidence of conduct of third parties, be it on the Province's hand of Mr. Storey or the logging company or on the Federal hand, the CN, where it is led to impingement or an inability of the plaintiffs to seek ownership and to exercise their ownership and jurisdiction is relevant evidence. My lord, those are my submissions relating to the relationship of the Federal Crown. I hope that clarifies matters for Mr. Macaulay, and I will leave it to him to respond. I'd like to go to the last point which is the claim for ownership and jurisdiction and that is the point that you have raised yourself in which we -- Just a moment, please, if I could make a note. All right, thank you. This is the third argument or third branch of this point which is the nature of the plaintiff's claim? Yes. Thank you. Well, my lord, I am going to refer to some quotes and I -- from the court and it is not -- again, I appreciate that these are comments made by the court in the course of the -- again, trying to clarify the issue as I understand it, not to -- I appreciate they were not the final word on the subject and I believe as Mr. Rush indicated in the beginning of this week, we don't anticipate that necessarily the final word on the subject should be today and I am not prepared to say that but to try to clarify the matter. This matter, my lord, was raised by the court on June 26 and on July 17. July 17. 17, yes, my lord. And on June -- well, before going to how I understand it, the plaintiff's claim, my lord, I want -- it is our submission that our claim is clear that clearly forms an entitlement to aboriginal rights including ownership and jurisdiction over the territory. But the prayers for relief which I've referred you to and I have requoted today include many specific aspects of 3444 1 aboriginal right and, of course, the prayer for 2 relief number 6 includes a declaration of 3 entitlement, a declaration that the aboriginal 4 rights are recognized and affirmed by section 35. 5 Now, on June 26, my lord, your lordship stated -- I 6 am sorry, my lord, I don't think -- I haven't noted 7 the page but this was in the course of the 8 discussion: 9 10 \"But I at the moment have some misgivings about 11 whether you are claiming or whether your 12 statement of claim includes a lesser claim for 13 aboriginal rights than ownership and use and 14 self-government and all those things. Now, I 15 think this is a -- this is a discussion that 16 will assume much more important later than it 17 does now. I raise it only to alert all 18 counsel to the question I have about what the 19 position of the plaintiffs is. That is, there 20 is no doubt about what the position of the 21 plaintiffs is in the first instance. But as 22 to alternatives, I am in some doubt about what 23 alternatives you are actually claiming.\" 24 25 And on July 17, my lord, this court raised it at 26 page 1914: 27 28 \"Well, I don't think I've ruled that there 29 isn't an alternative claim already in the 30 pleadings. I think I've indicated that I have 31 some difficulty locating it, or extracting it 32 from the language I suppose is a better way to 33 put it. But that matter is at large, I think. 34 And I understand the force of what Ms. 35 Koenigsberg says, as I'm sure you do, but 36 we're not here today to commit anybody to 37 any -- a deadline either for this sort of 38 thing, or an end date for the completion of 39 the evidence, so that matter can be peacefully 40 left at large I think.\" 41 42 Now, as this was raised by the court on both 43 those dates, my lord, and in trying to grapple with 44 the issue, I must say that with some respect that it 45 is unclear I am seeking clarification as to what 46 position the court sees regarding the need to canvas 47 this argument prior to the conclusion of evidence of 3445 1 the case. The reason I say that, my lord, is that 2 of course the rules provide for provisions of 3 amendments to the pleadings to match the evidence. 4 If that is necessary at the completion of this case 5 or at the completion of the plaintiff's case, we 6 will be making such application. 7 But in considering the statements of the court 8 and reviewing the transcript of June 26 where this 9 was argued, my lord, it is our submission that the 10 court may find certain aboriginal rights without 11 finding all of the rights claimed by the plaintiffs 12 on the pleadings as they now stand. It is apparent 13 to all parties that the court will have to make a 14 decision with respect to the scope of section 35 of 15 the Constitution Act as it applies to the plaintiffs 16 in this case. 17 This prayer for relief is in paragraph 6, and I 18 would ask the court to consider again what Judson 19 and -- what Judson has said in the Calder case and 20 what was said by the Supreme Court in Kruger and 21 Manuel. I just have an excerpt here for my friends. 22 Now, Mr. Justice Judson at page 156 stated, and I 23 have the excerpt, in the Calder case: 24 25 \"Although I think that it is clear that Indian 26 title in British Columbia cannot owe its 27 origin to the Proclamation of 1763, the fact 28 is that when the settlers came, the Indians 29 were there, organized in societies and 30 occupying the land as their forefathers had 31 done for centuries. This is what Indian title 32 means and it does not help one in the solution 33 of this problem to call it a 'personal or 34 usufructuary right'. What they are asserting 35 in this action is that they had a right to 36 continue to live on their lands as their 37 forefathers had lived and that this right has 38 never been lawfully extinguished.\" 39 40 Now, then the court in Kruger and Manuel of 41 course at the second page in the second column went 42 on to state just before that in the paragraph, 43 before laws of general application: 44 45 \"Claims to aboriginal...\" 46 47 About ten lines up, my lord. 1 THE COURT: 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 MR. GRANT: THE COURT: MR. GRANT: 3446 I am sorry, where are you reading from now? Kruger and Manuel, the second page in and, I am sorry, the top of the page was clipped off, the second column, about eight lines up from the Laws of General Application section there, where it says -- Yes. \"Claims to aboriginal title are woven with history, legend, politics and moral obligations. If the claim of any Band in respect of any particular land is to be decided as a justiciable issue and not a political issue, it should be so considered on the facts pertinent to that Band and to that land, and not on any global basis.\" Now, that, my lord, is why as I believe you commented earlier on when you raised this issue is -- or in comments this morning is why we are facing in some ways unchartered ground. And it is quite simply this, that the Gitksan and Wet'suwet'en have not raised the issue of what their aboriginal title means to them before a court before this time. And it doesn't help us in the resolution of that to determine what either the Mowry (phonetic) or the other groups within Canada, for example, have determined the Inuit in Baker Lake and others in terms of discussing what the scope of the aboriginal title it is . Now, I would dare say, my lord, in light of the abundance of the evidence which you have already heard and I would go on to say, because I think this will be before the court before the end of the day or the end of the trial, that the notoriety of the northwest coastal societies including the Gitksan and both historical and anthropological terms that the court is dealing here with two very sophisticated and complex societies, two of the most sophisticated and complex which have ever raised the issues of aboriginal rights before the courts. Now, in determining the scope of section 35, the evidence which the court hears is to the scope of aboriginal rights, particularly the Gitksan and Wet'suwet'en, is essential. It is for this reason it is my submission that the court cannot really -- that it is difficult for both us as counsel for the plaintiffs and the courts to consider where the 3447 1 alternatives, if any, lie. As you said in June 26, 2 it is clear what our -- what the plaintiff's 3 position is, but the question of the alternatives is 4 a question that I dare say may only become apparent 5 after the full canvassing of the evidence, both 6 direct and cross-examination. And I would submit as 7 was suggested I believe in the opening of the trial, 8 my lord, that the trial in a way is an educational 9 process for all -- on the Gitksan and the 10 Wet'suwet'en for all who are present in the court 11 and it is for this reason, my lord, that the 12 plaintiffs are concerned why the court is 13 considering the prognosis of -- and this was 14 originally commented I referred to by I think Mr. 15 Macaulay in court just referring to the issue as an 16 all-or-nothing question relating to the issue. 17 It is our submission, my lord, that in the 18 pleadings at this stage, in those declarations and 19 in paragraph 57 which at page 11 and 12 of the 20 pleadings, that there is ample room for the court to 21 consider the scope and extent of the aboriginal 22 rights of the plaintiffs and even if the court finds 23 at the end of the day that you cannot see your way 24 to the declarations as the plaintiffs -- the 25 scope -- the broad scope of the declarations which 26 the plaintiffs seek, that you still will have ample 27 latitude to make a declaration which will match the 2 8 evidence. 29 THE COURT: Well, that's really my problem, Mr. Grant, because 30 when I read your Statement of Claim, it is so 31 frequently filled with references to ownership and 32 jurisdiction that I was concerned to know and I am 33 still concerned to know, although you are making 34 yourself clear this morning, whether you were 35 claiming anything beyond ownership and jurisdiction 36 and, until today, I haven't received from you any 37 statement that you were claiming anything more than 38 ownership and jurisdiction. Now, as I say, when I 39 read your Statement of Claim, I don't find any 40 pleadings that clearly advance anything other than 41 ownership and jurisdiction and, indeed, in your 42 prayers for relief, any claims other than ownership 43 and jurisdiction are made obliquely if at all, and 44 it is really a matter of establishing what is the 45 game we are playing here, and I don't say that in 46 any facetious sense. I think that all parties are 47 entitled to know the extent of the claim that's 3448 1 being advanced, and it isn't enough in my view to 2 say, well, there may be amendments at the end. It 3 seems to me that the evidence should be related to 4 the pleadings as it's going in, and when I look at 5 the Statement of Claim, as I say I see frequent 6 references to, for example, ownership and 7 jurisdiction. For example, 69 talks about 8 aboriginal rights of the plaintiffs include 9 ownership and jurisdiction; 72 says plaintiffs have 10 never ceased to assert their aboriginal title, 11 ownership and jurisdiction and the right of 12 possession; 73 talks about aboriginal title, 13 ownership and jurisdiction; same with 74. Paragraph 14 75 refers to the right of ownership including access 15 and use and right to exercise jurisdiction. 16 MR. GRANT: Which paragraph is that, my lord? 17 THE COURT: 75. But when you come to the claims and what's 18 called a prayer for relief, somewhat archaic term, 19 paragraphs 1 and 2 are clearly claims for 20 declarations of ownership and jurisdiction 21 simpliciter. And then 3 says a declaration of 22 plaintiff's rights of ownership and jurisdiction 23 within the territory include the right to use, 24 harvest, manage, conserve. Now, that doesn't seem 25 to me to be a claim for anything other than 26 ownership and jurisdiction. Paragraph 4 says that 27 the right to jurisdiction includes the right to 28 govern and things of that nature which don't seem to 29 me to advance any alternative claim. Paragraph 5 30 says that the right to ownership of and jurisdiction 31 over the territory includes the right to ratify 32 titles or refuse to ratify titles. Again, doesn't 33 seem to be an alternative claim. And then 6 is a 34 declaration of aboriginal rights generally including 35 ownership of and jurisdiction. And so it seems to 36 me that it's only fair that I should ask you as I 37 did previously are you claiming something beyond 38 ownership and jurisdiction, and you have indicated 39 today that you are. 40 MR. GRANT: Well \u2014 41 THE COURT: But I am not at the moment satisfied that it's 42 pleaded, and that's why I thought we should have 43 this kind of discussion. 44 MR. GRANT: Yes, my lord. Well, it's interesting \u2014 the 45 terminology that you have just referred to of 46 claiming something more is -- 47 THE COURT: Well, not something more, something additional to. 1 MR. GRANT 2 THE COURT 3 4 5 MR. GRANT 6 7 8 9 THE COURT 10 MR. GRANT 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 THE COURT 42 MR. GRANT 43 THE COURT 44 45 46 MR. GRANT 47 THE COURT 3449 Something different than. Yes, taking for the purpose of illustration to put it in focus if you failed on your claim to ownership and jurisdiction, are you claiming anything else? Well, my lord, I just would refer you to a couple of the paragraphs of the pleading and that is that paragraph 57 describes what the plaintiffs have done. Yes. And that paragraph 57 is an attempt to delineate what is meant for the court when we use the words \"ownership and jurisdiction\". My lord, I think Mr. Justice Judson dealt with a similar although different problem of terminology when he commented that it doesn't help us to talk about personal use of fructory rights, and the dilemma in this type of litigation, my lord, is that one may be stuck that any terminology one uses becomes -- if one may say a buzz word, and if one era as you will see in the case history, it was personal and use of fructory rights from 1888 and on. Then it becomes, in 1972 or '71, it becomes for a certain era, use and occupancy. That becomes -- that terminology comes out in part of the Calder decision. Then we have aboriginal rights and of course the -- the Supreme court of Canada, Mr. Justice Dickson, then Mr. Justice Dickson, now the Chief Justice, referred to of course that what aboriginal title is and is not and again tried to disabuse of this terminology. Well, it is in that context, in that legal historical context that I think you should look at when we are talking about ownership and jurisdiction, we are not talking here -- we don't want ownership and jurisdiction just to become a buzz word which probably given the length of the trial may very well be at the end of the day, but what we are saying is that what -- there is no question, and I think it is clear to the court, that the primary claim that we are seeking is ownership and jurisdiction. No doubt about that. And \u2014 But you have to keep in mind that you have linked \"ownership and jurisdiction\" with other words such as \"to govern the territory\". Yes. Which seems to me if you use Baker Lake as just an 3450 1 example, the plaintiff failed on ownership and 2 jurisdiction but succeeded on what generically might 3 be called aboriginal rights. 4 MR. GRANT: Well, and that is why I think that you \u2014 although 5 you see that's the point. For example, let me take 6 an example and I don't want to suggest to the court 7 this is what would happen. On page 9 of the 8 Statement of Claim or page 1 of the Trial Record, 9 actually 57(d), is that the plaintiffs have 10 exercised their spiritual beliefs within the 11 territory. And of course one of the \u2014 that as part 12 of the content of the jurisdiction of the plaintiffs 13 is something that we would ask the court to find, 14 their right to exercise their spiritual beliefs on 15 their territory. As I say, I am taking this as a 16 hypothetical. Let us suppose, my lord, that at the 17 end of the day the plaintiffs did not establish 18 that. What I am saying to the court is that that is 19 not fatal to the plaintiff's claim. It may well be 2 0 that when the court makes the finding and when the 21 court defines the aboriginal rights of the 22 plaintiffs it would exclude those things that the 23 courts says, well, you have just not established 24 this particular area that you say you have. 25 Similarly to take the example of (d), governing the 26 territory, and you may say, I can't find in all of 27 this evidence that you have actually governed the 28 territory. Of course I am saying this in the most 29 cautious of ways but let us say that as an example, 30 but that does not preclude the court from saying, 31 but I do find that you have aboriginal rights; I do 32 find that you have ownership and jurisdiction, but 33 your ownership and jurisdiction which is part of 34 your aboriginal rights is defined in this way. 35 This is what I find it means to the Gitksan and 36 the Wet'suwet'en. And that is why the comments of 37 Mr. Chief Justice Dickson in Kruger and Mr. Justice 38 Judson in Calder are so important, that it is -- it 39 is in the context of what the plaintiffs -- these 40 particular peoples, the Gitksan and the Wet'suwet'en 41 find, it is in that context that you are going to 42 find their ownership and jurisdiction, their 43 aboriginal rights. 44 That is one point, and the second point is that, 45 my lord, and you referred to it yourself and I would 46 just -- just give me one moment. The paragraph 69 47 which I believe you referred to on page 14 is the 3451 1 assertion that the aboriginal rights of the 2 plaintiffs include ownership and jurisdiction over 3 their territory. That's one point. And those 4 aboriginal rights, those rights referring to 5 aboriginal rights, are paramount to enactments past 6 and present to the Province of British Columbia. 7 Similarly, where you refer to the paragraph such as 8 74 and 73, its aboriginal titles, jurisdiction and 9 ownership of the plaintiffs has not been and cannot 10 be distinguished and, once again, 73, aboriginal 11 title, ownership and jurisdiction of the Gitksan and 12 Wet'suwet'en chiefs are the laws of the province of 13 British Columbia are subject to those. And once 14 more in 72, the plaintiffs have never ceased to 15 assert their aboriginal title, ownership and 16 jurisdiction in right of possession of the 17 territory. Now, then one looks at the prayer for 18 relief and what's important, my lord, I hope you 19 don't -- of course it is not a declaration sought, 20 but in an effort to clarify the 14 declarations or 21 the 15 declarations that are there, they are headed 22 and that first heading of those six is the content 23 of aboriginal rights. 24 THE COURT: The first one, I am sorry, or number 6, did you say? 25 MR. GRANT: Part 1 is Content of Aboriginal Rights, and the 26 first six are the content of aboriginal rights. And 27 then in number 6, number 6, that's true, the 28 aboriginal rights of the plaintiff, that phrase is 29 modified including ownership of and jurisdiction 30 over the territory but, my lord, whatever the 31 aboriginal rights are that you find, whatever they 32 are that you find, we seek the declaration that 33 those aboriginal rights are recognized and affirmed 34 by section 35. And that declaration itself, my 35 lord, is a declaration that in itself gives you the 36 scope when you have heard the evidence to define the 37 aboriginal rights and say, this aboriginal right is 38 defined. And you may say, this aboriginal right 39 includes jurisdiction but it does not include 40 ownership, or it includes ownership but not 41 jurisdiction, or it includes another bundle of 42 rights. And that is why I say it is a question 43 of -- it's on the facts particular to the Gitksan 44 and Wet'suwet'en that their aboriginal rights are 45 defined, and just as the Gitksan and Wet'suwet'en 46 cannot attempt to establish the aboriginal rights of 47 the Nishga or of the Nuchanga (phonetic) people on THE COURT: 9 10 11 MR. GRANT: 12 THE COURT: 13 14 15 16 17 18 19 20 21 MR. GRANT: 22 23 24 2 5 THE COURT: 26 2 7 MR. GRANT: 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 3452 Meares Island, similarly those other findings -- those -- what those people's aboriginal rights are are different as well. And that's the sixth declaration, and so what we have endeavoured to do -- What you are saying really is I should read paragraph 6 as it -- if it says a declaration of the aboriginal rights of the plaintiffs, whatever they are, which you say include at least -- which you say include ownership and jurisdiction. Yes. Well, that's the kind of clear statement I was looking for, Mr. Grant, so that we would all know where we stand. I think I have your submission, I think. I don't want to cut you off, but that's what I was looking for, for you to tell me. I must say that my impression from the responses I received earlier were that that was not your position and for that reason I have pressed for a considered response. Yes. My lord, but I guess maybe the reason for the ambiguity, I'd like to make it clear, and I certainly don't want to go down in history in any way. That will happen anyway, Mr. Grant. You can't help that. In terms of the statement, my lord, and in trying to grapple with this and express this to you, an analogy came to me and that was the analogy I believe Mr. Goldie's already tendered -- no, he hasn't tendered this, it will be before the court. It is a McKenna McBride transcript of their evidence. And the plaintiffs in this case, what they don't want to say to this court \u2014 what they don't want to say to this court and they don't want their counsel to say to this court is, well, you can just give us use and occupancy or you can just give us this or that. And the reason is, my lord, that was actually the predicament that they were in in 1915 when their grandparents or parents were before Mrs. McKenzie's father, Joshua Holland, was before McKenna McBride, and they said, just tell us where you want the Reserve, and they said, well, we can't tell you where we want the Reserve because we don't want a Reserve; this is all our territory. And they want that -- I think that's what the plaintiffs are trying to tell the court. They are saying this 3453 1 territory is our territory, and they are unequivocal 2 about that position, and I think that's -- that is 3 why probably the issue of ownership and jurisdiction 4 is so strongly pressed in the pleadings but I trust 5 that's -- and in the evidence of course. 6 THE COURT: All right. Thank you, Mr. Grant. We will take a 7 few moments now. My preference would be to hear 8 your learned friends on these three issues before we 9 go on the other ones if that's convenient. 10 THE REGISTRAR: Order in court. Court will recess. 11 12 (MORNING RECESS AT 11:17 A.M.) 13 14 I hereby certify the foregoing to be 15 a true and accurate transcript of the 16 proceedings herein, transcribed to the 17 best of my skill and ability. 18 19 20 21 22 23 TANNIS DEFOE, Official Reporter 24 United Reporting Service Ltd. 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 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 3454 (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT) THE COURT: Mr. Grant. MR. GRANT: Yes, my lord. Mr. Rush will be here briefly, but before my friends proceed my lord, there is just one point I want to make and that is in this discussion on this third area, this question, is it -- as I have said, that the plaintiffs' claim is a claim for ownership and jurisdiction. It's how the plaintiffs' see what their aboriginal rights are. In the discussions I have had with you and my reference to the pleadings and to paragraph six, I have just said there are different ways that you will be able to interpret or to arrive at your decision. Of course that is not, perish the thought, for me to deal with. It's for the court to deal with. And -- THE COURT: Well, not at this time, anyway. MR. GRANT: That's right. And I think that \u2014 I think that the -- that that's what is important and that's why I referred to the 1915 commissions. That the plaintiffs in their evidence today, in their evidence in 1915 and in their pleadings have tried to make it very clear to the court what they see their aboriginal rights as being and I think that's a four-score before the court. THE COURT: Thank you. Mr. Goldie or Mr. Macaulay. Whoever. MR. GOLDIE: Now, my lord, the exact objection that was made, and we have gone very far afield in the discussion, was at transcript 48 at page 3012, and the objection wasn't made at this time, but it will become clear, it is to this line of questioning that the objection was taken. Line nine: \"Q What loss has Wah tah Keg'ht and your House suffered as a result of the Trout Creek store being there on your territory?\" And then line 38: \" Could you advise what loss, if any, Wah tah Keg'ht and your House was suffered as a result of the railway having been put through your territory?\" Now, the first - volume 49, Mr. - and then at page 3019 in transcript Plant said at line two: 3455 1 2 \"I'm sorry, my lord. Before my friend Ms. Mandell 3 rises to speak, I think I may not have put the -- 4 my objection in the clearest possible terms. The 5 fact that activity has been carried on within the 6 territory pursuant to otherwise allegedly lawful 7 provincial or federal legislation, is in my view 8 relevant.\" 9 10 Now, that was the point I was endeavoring to make when 11 my -- I interrupted my friend's submission. 12 13 \"The irrelevant aspect of it is the question what 14 loss had the plaintiff suffered as a result of 15 that activity, and that is the area of inquiry 16 which I say is irrelevant for the reasons that I 17 tried to identify earlier, which basically is that 18 there is no claim made in this action arising out 19 of those acts. That's not related to their claim 20 of compensation.\" 21 22 Now, in order to follow this through, my lord, I am 23 going to make reference to the pleadings. Would you 24 give that to his lordship, please. 25 THE REGISTRAR: Certainly. 26 MR. GOLDIE: The pleadings as they now stand restrict the claim 27 for damages to trespass by the Crown, its servants, 28 agents, contractors. Now, the objection was on the 29 basis of relevance, and relevance is defined by 30 pleadings. There is no claim for damages occasioned 31 by the corner store or the Canadian National 32 Railway. Now, the history of the pleadings 33 underlines this. The original statement of claim 34 was deficient in two respects. One was that there 35 were no facts alleged that supported any claim for 36 damages, and secondly the claim against the Crown as 37 originally pleaded appeared to include people for 38 whom the Province was not responsible. And the 39 original prayer for relief is under tab one of this 40 little book that I handed up. And your lordship 41 will see the declarations that were sought at that 42 time. They were only six in number. Six has 43 expanded like topsey and is now about 14. 44 45 \"First, a declaration that the plaintiffs' 46 ownership and jurisdiction over the territory has 47 never been lawfully extinguished or removed. 3456 1 Second, the declaration of the plaintiffs do not 2 have jurisdiction over the territory of the 3 plaintiff. Third, a declaration that the 4 plaintiffs are entitled to damages from the 5 defendant for the wrongful appropriation and use 6 of their lands by the defendant or by other 7 persons without their consent.\" 8 9 Your lordship will note \"or by other persons.\" Now, 10 after some correspondence, and I have put in the 11 book a letter that I wrote to my friend of the 7th 12 of March, 1985, a Notice of Motion was brought on 13 under -- and it's under tab 3, and it was to strike 14 out paragraph 3 of the prayer for relief. The day 15 before the motion was heard an amended statement of 16 claim was filed, which alleged facts in support of 17 the claim for damages. So that was taken care of. 18 The argument on the motion which was heard before 19 Mr. Justice Taylor in April of -- the day after the 20 statement of claim was amended, I think it was April 21 25, 1985, then centred around two issues. And the 22 first was whether this was a claim by 47 plaintiffs 23 as there were then, bringing a class action on 24 behalf of some six or seven thousand plaintiffs, 25 each of whom had a cause of action, or was it an 26 action by 47 groups, each group being homogeneous? 27 And the other issue that was before the court, was 28 the Crown required to meet a claim for damages in 29 trespass caused by people with whom it was not 30 connected? 31 Now, the plaintiffs' written argument answered A 32 by saying that it was some 47 claims, and I have put 33 under tab five some excerpts from that and I am not 34 going to read all of it, but your lordship will get 35 the sense of it. Page seven, paragraphs two and 36 three, where my friends say: 37 38 \"In our case there is clearly a common interest, 39 exertion of a common right or a common grievance 40 normally arising from a common origin. If the 41 plaintiffs have an aboriginal right to their 42 territory as claimed and if that territory or 43 parts of the territory have been wrongfully 44 alienated thereby destroying their aboriginal 45 rights for the territory, each House has a claim 46 for damages. The claim is being brought by the 47 House as an unincorporated association of the 3457 1 Gitksan and Wet'suwet'en people. Any damages 2 suffered by the House would be shared amongst its 3 members.\" 4 5 And pages 13 and 14 are to the same effect. So it was 6 on that basis that that pleading clarified I 7 withdrew my objection and that took care of the 8 first point. 9 And we proceeded on that basis since, only there are 10 now a much larger number of plaintiffs. But each 11 plaintiff represents a group and each plaintiff is 12 self-contained. 13 Now, the issue -- the contest over issue B, or the 14 second issue, was the Crown required to meet a claim 15 for damages and trespass caused by people with whom 16 it was not connected? Is -- my friend's position is 17 indicated on pages 13 and 14 and -- under the 18 heading Declaratory Orders. And in essence, it was 19 well, don't do anything with the -- don't decide 20 this point now. Wait until the end of the day. 21 Now, the submission that was made on behalf of the 22 Province was a very simple one, and that is that 23 there is no basis for vicarious liability on the 24 part of the Crown. And what was brought to Mr. 25 Justice Taylor's attention was the statement by 26 Professor Atea, which is -- I put under tab six. 27 This was referred to. And it was in the context 28 that this is a claim for trespass, as indeed I 29 understand it to be. And I drew to his lordship's 30 attention the statement that is found in the very 31 first paragraph where the learned author said: 32 33 \"Vicarious liability in the law of tort may be 34 defined as a liability imposed by the law upon a 35 person as a result of, one, a tortious act or 36 omission by another. Some relationship between 37 the actual tort-feasor and the defendant, whom it 38 is sought to make liable.\" 39 4 0 And three: 41 42 \"Some connection between the tortious act or 43 omission in that relationship. In the modern law 44 there are three and only three relationships which 45 satisfy the second requirement of vicarious 46 liability. Namely that of master and servant, 47 that of principal and agent, and that of employer 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 THE MR. THE MR. THE MR. 3458 and independent contractor.\" Now, that submission was accepted by his lordship, and the question then became what was to be done with respect to the prayer for relief that I have -- that was in the statement of claim at that time. And as is often done on an application to strike out, the real question is what would be the appropriate amendment. And the amendment that was made is the one that is there to this day, which is servants -- yes, it's indicated in the Formal Order, my lord, that what was -- what was done at the time. That's under tab seven: \"The plaintiffs were at liberty to further amend the amended statement of claim by deleting the words 'or by other persons' in paragraph three and substituting therefore the words 'its servants, agents or contractors.'\" Now, the corner store is not operated by the Crown. The lady or gentleman who runs it is not a licensee of the Crown or an agent of the Crown. COURT: I am sorry, where is this language about contractors? You said paragraph 3. GOLDIE: It's paragraph 3 of the prayer for relief. Now, that -- we were looking at the original statement of claim, my lord, which is in part under tab -- COURT: All right. It's not paragraph 3 of the present prayer for relief? GOLDIE: No, it isn't. It's been renumbered. It's paragraph 12. COURT: Oh. Yes. Yes. All right. GOLDIE: The words contractor, its contractors or its servants, its agents or its contractors, take their ordinary meaning. They denote a special relationship for which the law -- which is the foundation in law for vicarious liability. Now, the holder of a Crown grant is free to conduct on that land any lawful activity or he can do nothing with it. He can cut firewood or he can walk around in it or he can conduct his business on it. He can do anything which is within -- which is lawful and is not a nuisance. So that there is nothing that your lordship ought to be troubled with in the question what loss did you suffer as a result of that corner store. 3459 1 Now, my friend said, well, the Crown requires 2 certain people to do certain things. If that's my 3 friend's allegation, he's going to have to lead 4 evidence of every licence, of every permit that he 5 relies upon. If he says the corner store is a 6 licensee, then he must -- he must -- he must 7 establish that. Even if he does establish it, the 8 question of loss is irrelevant, because it has been 9 severed. So I want to re-emphasize the fact that 10 the pleadings make activity relevant and we have 11 accepted that from the start. For instance, from 12 the standpoint of the defendants' pleadings, and I 13 am referring to the trial record here under tab 7 at 14 page 16, it's paragraph 36. We say that: 15 16 \"If the plaintiffs or their ancestors ever had 17 aboriginal or other right, title, ownership or 18 jurisdiction, etc. which is not admitted the same 19 or reduced, diminished or extinguished by one or 20 more of.\" 21 22 And then E at the bottom of that page: 23 24 \"The actions of third parties in the exercise of 25 rights and privileges conferred by the said 26 statutes and statutory instruments.\" 27 28 We say that -- we say that the activity has an impact 29 on aboriginal rights, but the question of whether 30 that activity has caused financial loss is 31 irrelevant. Of course, the owner of the corner 32 store is in all likelihood, assuming he or she is 33 the owner of the fee, is in all likelihood at that 34 the end of a long chain of title. 35 My friend used the example of the Story farm and 36 he said Mr. Story has built a fence. Well, no Crown 37 grant ever requires the building of a fence. And I 38 doubt if Mr. Story is the original Crown grantee, 39 but my point is this. There is a relevant question. 40 How has Mr. Story's fence interfered with your 41 ownership and jurisdiction? The irrelevant question 42 is what loss have you suffered by reason of Mr. 43 Story's fence? My friend referred to the judgment 44 of Mr. Justice Trainor pronounced in February of 45 1986 and read the second paragraph on page five. 46 And I asked him to read the last sentence of that 47 paragraph where his lordship summarized the 3460 1 submission that was made by Mr. Rush at that time. 2 And I quote from the judgment: 3 4 \"He is concerned that the thrust or focus of the 5 plaintiffs' claim would be moved from ownership 6 and jurisdiction to indemnity and money and he 7 submits that he should not be required to be 8 involved in the latter.\" 9 10 Well, at the risk of becoming tedious, the objection 11 was on that very point. Now, I -- that deals with 12 the question of the nature of the objection. I now 13 want to comment very briefly on the nature of the 14 pleadings -- 15 THE COURT: Are you going to deal with the railroad and the 16 airport? 17 MR. GOLDIE: I am going to leave the railroad and the airport 18 to my friend. 19 THE COURT: All right. Thank you. 20 MR. GOLDIE: Except to state the obvious, that I am not -- my 21 client isn't responsible for the actions of the 22 Canadian National Railway or the Department of 23 Transport. A very brief comment on the exchange 24 that your lordship has had with my friend Mr. Grant 25 on the nature of the claim that he's making. I 2 6 don't have any comment to make on his pleadings. I 27 regard them as an all or nothing case. We have 28 responded to the pleadings. As I said in my opening 29 last May, this is not a replay of Calder. Calder 30 was a claim for aboriginal right which was defined 31 by the plaintiffs in that case as the right to hunt 32 and fish on vacant Crown land. That is to say, a 33 right as against the world to carry on that activity 34 on vacant Crown land. My friend has made it 35 abundantly clear that he goes far further in this 36 case and that's what all this evidence is about and 37 we are responding to it. I do have this comment or 38 I have two comments. Firstly, I say if he intends 39 to amend, he should do it now rather than at the end 40 of the day. Whatever day that might be. My second 41 observation is this: Several times my friend has 42 said what ownership and jurisdiction means to the 43 plaintiffs. That your lordship will declare what 44 that means to the plaintiffs. Well, with all 45 respect, they presumably know that now. They are 46 here seeking to obtain a declaration as against the 47 world what ownership and jurisdiction means. What 3461 1 it means to them is irrelevant. That might be the 2 subject of a Royal Commission or of an inquiry by an 3 interested anthropologist, but it's not what we are 4 here for. 5 THE COURT: Mr. Goldie, why do you say it's an all or nothing 6 case? 7 MR. GOLDIE: Well, I'm just -- that was my reading of the 8 pleadings before your lordship ever raised the 9 question. I -- when I read the pleadings, it seemed 10 to me a claim for ownership and jurisdiction, 11 period. My friend has now advised your lordship 12 that there is more in I guess it's paragraph 6 of 13 the prayer for relief than I saw at first instance, 14 but that's often the case. And I am quite 15 prepared -- if the pleadings are unchanged, I am 16 quite prepared to argue what that is, and I say that 17 if they fail on their claim for ownership and 18 jurisdiction, they fail on the action. Because it 19 is not a Calder action. But my friend has made a 20 submission on that and I am going to consider it. I 21 have to say that I have to tell your lordship that 22 our counterclaim touches everything within the 23 spectrum: ownership, jurisdiction, aboriginal right, 24 whatever it may be. 25 THE COURT: Well, do you say that it is not open to your friends 26 to advance an argument for relief in this action as 27 an alternative for some lesser right than ownership 28 and jurisdiction? 29 MR. GOLDIE: Oh, I don't \u2014 I don't say that if they amended 30 their pleadings to claim in the alternative that 31 they couldn't do that, no. Not at all. I just say 32 that when I read the pleadings, I came to the 33 conclusion that they were not seeking any relief in 34 the alternative. And the relief they sought was 35 ownership and jurisdiction and in the ordinary full 36 sense of those words. But if my friend -- in fact, 37 I wouldn't -- I wouldn't suggest for a minute that 38 they couldn't seek relief in the alternative. I 39 think that completes my submission. 40 THE COURT: All right. Thank you. Just a moment, please, Mr. 41 Macaulay. Mr. Macaulay? 42 MR. MACAULAY: If it please your lordship, the submission I made 43 the other day arises out of the nature, general 44 character and specific recording of the statement of 45 claim. It was -- and I am referring now to the 46 latest statement of claim, the one filed on May 11, 47 1987. Before I do that, perhaps I should go back to 3462 1 something that my friend Mr. Grant mentioned in his 2 submission. And that is the reasons for judgment of 3 Mr. Justice Trainor handed down on February 21 of 4 1986. That was the occasion when an order was made 5 joining the Attorney General of Canada as a 6 defendant. The application was made by Mr. Goldie 7 on behalf of the Province and was opposed by the 8 plaintiffs and by the Attorney General. In his 9 reasons for judgment at page 6 Mr. Justice Trainor 10 lists a number of matters, issues that were he found 11 hadn't been raised in the earlier pleadings. Of 12 course the earlier pleadings had nothing to do with 13 Canada that could have as he put it an effect on the 14 Crown in Canada. He listed them. They included 15 fisheries, the power to regulate Indians and land 16 reserved for Indians under section 91.24, section 17 109, the Royal Proclamation section, the section 88 18 of the Indian Act and also the Constitution Act of 19 1982. After Canada, if I can call it that, was 20 joined as a defendant, there were further 21 amendments. My recollection is there were two or 22 three further amendments to the statement of claim 23 ending with the one that's before -- forms part of 24 the record now. And it's clear from all those 25 versions, those later versions of the statement of 26 claim, that the plaintiffs rely on the Constitution 27 of Canada, both the 1867 Constitution Act and the 28 1982 Act as part of the foundation for their claim. 29 In paragraph 69 of the statement of claim they 30 invoke section 35 of the Constitution Act and 31 several other sections. And they say that -- and 32 I'll now read from that section: 33 34 \"The aboriginal rights of the plaintiffs include 35 ownership and jurisdiction over their territory 36 and those rights are paramount to enactments 37 past and present of the Province of British 38 Columbia.\" 39 40 That is how they rely on the Constitution of Canada 41 and they say they invoke the doctrine of paramountcy 42 vis-a-vis British Columbia only. In paragraph 71 43 they say that the customary and conventional 44 international law requires the Provincial Crown to 45 recognize and confirm. In paragraph 73 they refer 46 to the laws of British Columbia and say that they 47 are subject to the reservation of aboriginal title, 3463 1 ownership and jurisdiction by the Gitksan chiefs and 2 the Wet'suwet'en chiefs and do not confer any 3 jurisdiction over the territory and resources 4 thereon and therein claimed by the plaintiffs. They 5 refer to the laws of the Province of British 6 Columbia. In paragraph 75 they say that the 7 defendant has wrongfully alienated land and 8 wrongfully -- it's in the singular and it's quite 9 clear that that refers to the Province only. 10 Because in paragraph 76 they go on to say the 11 defendant, in the singular again, had wrongfully 12 permitted others to use the plaintiffs' territory by 13 issuing grants, licences and leases. That's clearly 14 a reference to the Province only. And in paragraph 15 77 they refer to the wrongful -- the wrongful 16 alienation to third parties and wrongful utilization 17 of the territory by the defendant in the singular. 18 In paragraph 79 they refer again to the defendant 19 only, with a little more precision, it's referred to 20 as the defendant Province. And the prayer for 21 relief of course is -- arises out of those 22 allegations. In paragraph 5 there is a reference to 23 the defendant Province, that is \"the declaration 24 sought is a declaration that the plaintiffs' rights 25 to ownership and jurisdiction over the territory 26 include the right to ratify, conditionally or 27 otherwise refuse to ratify land titles or grants 28 issued by the defendant Province after October 22, 29 1984.\" And there is a whole series of declarations 30 that are sought: seven, eight, right down -- 31 including 12, from seven to 12 that affect only the 32 Province. The statement of claim can't possibly be 33 read as raising issues concerning, for instance, the 34 Indian Act, section 88 of the Indian Act or any 35 other sections. This is Mr. Goldie's list, by the 36 way. It was reproduced in the judgment. 37 MR. GOLDIE: The amendments that you are reading from are made 38 after Mr. Justice Trainor's judgment. 39 MR. MACAULAY: I think I have made that clear to his lordship. 40 Mr. Justice Trainor listed these eight matters that 41 he thought might interest Canada. 42 THE COURT: He is trying to give you credit for it, Mr. Goldie. 43 MR. MACAULAY: Yes, I am saying he took those eight issues from 44 Mr. Goldie's very able and successful submission. 45 There is no reference to the -- to Canada's power to 46 regulate railways or airports, their power to 47 regulate Indian reserves, their power to make 3464 1 treaties, and there is at least one international 2 treaty that has a direct impact on the area claimed 3 and that's the International Fisheries Treaty, has a 4 direct impact on the regulation of the fishery all 5 along the Skeena River. And now, having said that, 6 we received a report, that's the Morrell report, 7 fisheries report, in which it was obvious the 8 question of the limits on the Federal Crown's power 9 to regulate fisheries was likely to be raised and 10 indeed that issue was -- has been raised in other 11 cases like the Sparrow case, limits on the 12 constitutional power of the Federal Crown. That's a 13 very different question from the question whether or 14 not Canada has any jurisdiction at all on those 15 pleadings. And having read Mr. Morrell's report, a 16 report, an expert's report was prepared covering the 17 fisheries. And now we hear today for the first time 18 that the railway, which finds its -- is operating 19 under the provision of the Railway Act of Canada, 20 and under -- and is governed by Federal agency, and 21 indeed owned by the Crown, the Federal Crown, is 22 supposed to have destroyed villages. Now, I had 23 never heard that and I had never seen that in any 24 report, any of the many reports, the plaintiffs have 25 filed. But obviously we will have to look into that 26 and we will -- may seek leave of the court to file 27 another expert's report covering important matters 28 of that kind, that is the development of the railway 29 during almost all of the present century. That's 30 the difficulty that arises out of having pleadings 31 cast in this form. 32 We now have a clear statement from counsel for the 33 plaintiffs, as I understand his statement is that 34 every -- every aspect of Canada's jurisdiction is 35 challenged. That is, that I take it that the 36 doctrine of paramountcy, at the very least the 37 doctrine of paramountcy is going to be invoked 38 against the Federal as well as against the 39 Provincial Crown and that important matter ought to 40 be raised in the pleadings so that it's an issue in 41 the pleadings. This isn't -- this isn't -- you 42 can't characterize that kind of an issue as a sub 43 issue of a greater or more important issue that's 44 clearly been raised in the pleadings. Far from 45 raising these issues, the statement of claim as it's 46 presently cast not only suggests, it takes the 47 position that it's only the Provincial Crown's 3465 1 jurisdiction and laws that are imputed in a broad 2 and comprehensive manner. So that now that I think 3 we know where we stand and we do now, I submit that 4 the plaintiffs should be required to amend their 5 pleadings accordingly. 6 THE COURT: Well, Mr. Macaulay, what I understand as the 7 doctrine of paramountcy, and I have -- I must 8 confess I didn't read up on my constitutional law on 9 that point in preparing for today's submissions and 10 not anticipating that it would arise, but my 11 recollection of the doctrine of paramountcy is that 12 it applies where two jurisdictions or two branches 13 of the legislative scheme each claim jurisdiction 14 over the same area or subject matter. 15 MR. MACAULAY: Each property claim jurisdiction. 16 THE COURT: Yes. Such as when the Federal Government and the 17 Provincial Government both purport to legislate with 18 respect to the same class of subject. Maybe there 19 is another meaning for paramountcy. Is that the 20 sense in which you are using it? 21 MR. MACAULAY: Yes, it is. That's the sense in which I am using 22 it. It seems to me -- well, the very word 23 paramountcy is used in the statement of claim. 24 THE COURT: Is it, really? 25 MR. MACAULAY: In 69 the plaintiffs say that their rights are 26 \"paramount to enactments past and present of the 27 Province of British Columbia.\" Now, the rights they 28 are referring to is the rights to jurisdiction. And 29 I take it -- and ownership. I take it this is where 30 the plaintiffs' rights to own and govern their 31 territory collide with any Provincial law, then the 32 doctrine of paramountcy is invoked. Well, it seems 33 from what Mr. Grant has said today that that 34 doctrine of paramountcy is going to be invoked as 35 against the Federal Crown in a -- it's impossible to 36 tell just now whether it's in every respect or 37 whether it affects the right and obligation of 38 Canada to defend the country or whether it 39 challenges the right of the Federal Crown to 40 administer Indian reserves or exactly where the 41 doctrine is being invoked. And those matters ought 42 to be pleaded with some particularity. As I say, 43 it's certainly not to be pleaded as the issue is 44 pleaded as against the Province. It should say that 45 section 69 should now read, \"those rights are 46 paramount to enactments past and present of Canada 47 and the Province of British Columbia\" to conform 3466 1 with what Mr. Grant has told us and that would raise 2 the issue and would make relevant perhaps another, 3 God forbid, but another archive of documents. The 4 last hundred years of the history of the railroad. 5 THE COURT: Well, we don't want that, do we? 6 MR. MACAULAY: It's not what we want, it's what we have to look 7 at. The specific statements were made about the 8 destruction of villages, for instance. Well, I 9 don't know if the witness is going to give viva voce 10 evidence about that. I kind of doubt it. 11 THE COURT: I thought we were talking about the destruction of 12 beaver habitat. 13 MR. MACAULAY: No. Villages. Oh, was it beaver villages that 14 we are talking about? I don't think so. There were 15 three things that were mentioned. 16 THE COURT: I don't recall. All right. Well \u2014 17 MR. MACAULAY: Still, whether it's beaver villages we are 18 talking about or whatever, we will have to consider 19 what steps we take to meet that case. The Indian -- 2 0 we have enough documents dealing with the 21 administration of dealings with the administration 22 of the reservation. We have to look through the 23 archives to see if there are more, but first there 24 should be an amendment. 25 THE COURT: All right. Thank you, Mr. Macaulay. Mr. Grant. 26 MR. GRANT: Thank you, my lord. Well, first of all, my lord, 27 the Federal Crown dealing with Mr. Macaulay's 28 submissions has already filed or tendered their own 29 alienation project. Now, these aren't restricted to 30 reserves they have given us and proposed at some 31 stage. 32 MR. MACAULAY: It's not an alienation program, my lord. If my 33 friend has misunderstood the character of these 34 maps, there are maps that show the Federal presence 35 in various ways: Where the Indian reserves are, the 36 public works property is, the railroad and so on. 37 We have never characterized that as an alienation 38 project particularly. 39 THE COURT: All right. 40 MR. GRANT: I think one of the buzz words that goes round is 41 alienation, and I appreciate my friend clarifying 42 that. But let me say this, my lord: When you see 43 them you will find them very very similar except for 44 who the names of -- who it is that's sitting there. 45 And when my friend says it's Federal presence, 46 that's -- of course he is talking about here 47 airports, he's talking about, as he said, public 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 THE COURT: 33 34 35 MR. GRANT: 36 37 38 39 40 41 42 THE COURT: 43 44 45 4 6 MR. GRANT: 47 3467 works, he's talking about as -- he's calling it the Federal presence. It comes as somewhat of a surprise to me, given that this matter was raised by us, by the Federal Crown last year, last spring, that they -- my friend is suggesting that this may not at all be relevant. And it's our submission that an -- and as I tried to explain that what happens on the territory by either the Federal presence, quote unquote, or by third parties invited thereby -- on behalf of the Federal Crown is relevant to show the impact on the plaintiffs' ability to exercise ownership and jurisdiction. Now, the issue regarding the fishery has been clear to my friend, and that is an issue that the plaintiffs are raising. He has had no difficulty with that with respect to the present pleadings. The issue with respect to the reserves, I believe it was Mr. Joseph was cross-examined extensively about the existence of Felix George reserve on his territory and the Hagwilget reserve and this is part of the, quote, Federal presence. And all we are saying is in the line of my argument is that if it happens to be that the railway or the licence to go on or authorized by Federal Crown to go on there or the airport has interfered with say Wah tah Keg'ht's ability to exercise his ownership and authority, that that evidence is probative to the court in terms of why maybe Wah tah Keg'ht is no longer exercising his authority where the airstrip is in Smithers. That's what the point of that evidence is . Do you challenge the right of Canada to authorize lines of rails and -- lines of railways and airports in the territory claimed in this action? Well, what we are saying, my lord, is that the evidence of what -- the context in which it was is that the evidence of what the railway or the airport does is relevant to show how the plaintiffs have been impaired in their ability to carry out their activities or to exercise ownership and jurisdiction. But are you saying that your claim is such that if you are successful you would have ownership and jurisdiction over on the C.N.R. right-of-way and over the airport? The claim is for ownership and jurisdiction over the territory, yes, and that includes that. And my 1 2 THE COURT 3 MR. GRANT 4 5 6 7 8 9 10 11 12 13 14 THE COURT 15 16 17 MR. GRANT 18 19 20 21 22 23 24 25 26 27 28 29 THE COURT 30 MR. GRANT 31 THE COURT 32 MR. GRANT 33 THE COURT 34 MR. GRANT 35 THE COURT 36 37 38 MR. GRANT 39 40 41 42 43 44 45 46 THE COURT 47 3468 friend refers to -- Well, should that not be pleaded then? Well, you see, that's why I went to the seventh point of Mr. Justice Trainor's comments, because that's not been changed. And that's in paragraph 56, the plaintiffs have owned and exercised jurisdiction over the lands, and paragraph 58 the plaintiffs continue to exercise jurisdiction and ownership over the territory at the present time and that's where I referred you to the quote of the Court of Appeal in the appeal of Mr. Justice Trainor's decision because they referred specifically to that. And then -- But you see, at that time those learned judges didn't have your amended pleadings before them. They didn't know -- But those paragraphs -- they had -- they had those paragraphs before them that I have referred to. Those paragraphs haven't been changed. I agree that we have not -- we have narrowed it, if one may say. There has been no -- the removal of the reference to section 88, we have narrowed it down. But with respect to the claim, you see, my lord, the problem here is a jurisdictional one as well is that this court cannot in our submission make -- it can make certain declaration which impact on the Federal Crown. It cannot make orders against the Federal Crown. So -- Oh, I wouldn't be worried about that. Well, you have given me some reassurance. I don't read the Federal Court Act that narrowly. But \u2014 It may be a problem with claim for damages. Yes. You're talking about land within British Columbia. I am not sure that the Federal Court Act excludes my jurisdiction in that regard. Well, it may be that there are more -- and I believe from the, quote, Federal presence maps, there may be -- as I recall, there is more than one airport, air field, etc., and it may be that some of those that are not used have no impact. One -- there will be evidence led before the court of a location of one air field which is on the location of a village site of the Gitksan. Well, shouldn't you at least add the Federal Attorney General to paragraph 69? 3469 1 MR. GRANT: I am sorry, 69? 2 THE COURT: Yes. Where you claimed paramountcy for your rights 3 and protections against the Province. And if you 4 did that, then your friend might ask for some 5 particulars of which Federal laws you say are 6 subject to the paramountcy rule as we are using it, 7 and there would at least be shared understandings in 8 that regard. You come close to pretzelling 9 ourselves, I suppose, in some of these problems, but 10 I would not read your statement of claim at the 11 moment to challenge the Federal presence. Now, that 12 may be -- that may be very general, and I'd have to 13 read the statement of claim carefully in the light 14 of the arguments I have heard today, but I have not 15 read the statemet of claim as challenging such 16 things as airports and railways. No doubt there are 17 other items of Federal presence that might fall in 18 the same classification. 19 MR. GRANT: Well, I take your point and I would like to consider 2 0 your point about amendment. 21 THE COURT: Yes. 22 MR. GRANT: So I can't speak \u2014 I don't want top speak any 23 further on that right now, and consider what you 24 have said there. But, my lord, as I expressed at 25 the beginning, the way this -- Mr. Plant jumped was 26 the specific example to which he jumped with his 27 objection was C.N.R. and what they were doing to the 28 territory and he made it clear that he was concerned 29 about that general scope and Mr. Goldie has 30 explained that as Mr. Plant did, but that's why my 31 argument I felt had to focus on both issues. 32 Because the C.N. when they have conducted themselves 33 improperly, and it's the village site is a fishing 34 village which evidence will be led of, but that was 35 destroyed. It's not a beaver village. That we have 36 already heard about. But with respect to what C.N. 37 has done, the relevance of that is how it impacts on 38 the plaintiffs' ability to exercise their ownership 39 and jurisdiction and as Mr. Goldie referred in their 40 defence, I believe paragraph 36 of their defence, 41 that is directly in issue. 42 Now, presumably, my lord, although I am unclear 43 because the, quote, Federal presence project, if we 44 may call it that, is along the same lines. So 45 that's why I didn't see that there was any -- that 46 we were at odds with each other and with respect to 47 what we understood the issues were. That the 10 THE COURT: 11 12 13 14 15 16 17 18 MR. GRANT: 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 THE COURT: 34 MR. GRANT: 35 36 37 THE COURT: 38 39 40 41 42 43 44 45 46 47 3470 Federal Crown was going to say, well, the Province has done these things and they have alienated. Well, we have a Federal presence and that's the part of the defence as well. And we say yes, the Federal presence in certain places may have impaired the plaintiffs' ability to exercise ownership and jurisdiction and we are going to take issue with that in terms of how the plaintiffs have effected the loss . In view of the absence of Canada from paragraph 69, if I were giving judgment in your favour today for ownership and jurisdiction I would feel constrained to qualify that by excluding such things as the airport and the railroad -- railway and I don't know what else. I take it from hearsay that you would think that I shouldn't pose that limitation or that qualification. No. What I meant, my lord, is -- I have your point about the amendments and I understand that, but what I am saying is, okay, that's one part of it. What I am saying is it's quite proper for us to say what has C.N. done, not to seek a declaration of entitlement of loss against the Federal Crown but to show how C.N., how the Federal Crown where it -- where C.N. has done it under the direction and authority of the Federal Crown, where the Federal Crown has impaired the plaintiffs' ability. But at the end of the day that may not mean there is a declaration against that, but only a finding that the plaintiffs have been impaired and I -- all I'm speaking to there is the relevance of that evidence. Now, I'd like to go back to Mr. Goldie's comments. Just a moment, please. Yes. Thank you. My lord, my friend has pointed out the time and rather than just start I would like to reply to Mr. Goldie, but I will wait until after lunchtime. All right. Yes. 2 o'clock then, please. (PROCEEDINGS RESUMED PURSUANT TO LUNCHEON ADJOURNMENT) I hereby certify the foregoing to be a true and accurate transcript of the proceedings herein to the best of my skill and ability. Laara Yardley, Official Reporter, 3471 1 United Reporting Service Ltd. 2 3 4 5 6 7 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 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 3471 (PROCEEDINGS RESUMED PURSUANT TO A LUNCHEON ADJOURNMENT AT 2:00 P.M.) THE REGISTRAR: Order in court. Ready to proceed, my lord. THE COURT: Mr. Grant. MR. GRANT: Yes, my lord. Mr. Goldie in his response and his reply indicated that -- made much of the Trout Creek Store. When you look at Exhibit 146 which is the photograph of the Trout Creek Store which has been tendered which is Mr. Mackenzie's photograph as I understand, you will see that it is a liquor distribution outlet; in other words, the Trout Creek Store to talk about agents, the Trout Creek Store is expressly an agent for one of the functions of the Provincial Government. And of course as my friend says in that prayer for relief and the entitlement to damages, it deals with the damages occasioned by servants, agents or contractors. Mr. -- we have no difficulty or we anticipate no difficulty once the -- in our right of cross-examination of persons on the alienations in establishing the authorizations and their requirements for persons, the third parties to obtain the properties, my lord. In the one examination that has taken place I have been instructed that the person didn't know anything about that and that occurred yesterday. We have not had a chance to review the transcript yet. Now, I just want to clarify something about -- this is on the point of the objection, but still, that I think there is three stages in terms of what happens regarding these alienations. First stage is the alienation itself that the Province has alienated or given a lease to somebody. The second is the proof of impact of what that person has done with it. And the third is quantification. And it is agreed by Exhibit 20 that quantification is not before the court now. It is severed. But with all due respect, I believe that what Mr. Goldie effectively did in his argument was lumped two and three together. Let me put it in a pragmatic way. It's not enough for us to say, well, Mr. Storey's put up a fence, and Mr. Goldie says then that's -- you end there, the fact that there is a fence there. The point is, what is the impact if any of that fence. THE COURT: How can you litigate a matter of that kind -- an area as vast as this? If we have to look into the 1 2 3 4 5 6 7 8 THE 9 MR. 10 THE 11 12 MR. 13 THE 14 15 16 MR. COURT GRANT COURT GRANT: COURT: GRANT: 3472 many impacts of every alienating piece of property -- MR. GRANT: We are not going to look at the impact of every alienated piece of property, but there are -- my friend's objections were that you can't look at any of this and what we are saying, you must go beyond the fence. Your friend said you could. At the impact of the fence. He said you could. I shuttered when he said it, but that's what he said. Well, because -- That is making -- that would make a mockery of litigation. May as well close the doors, we will never finish, if those issues were at large. My lord, the point is this, is let us go beyond Mr. Storey's farm to something that's been before this court in the last few days and was raised by Mr. Mackenzie, and that is Equity Silver. Equity Silver Mines which is on that territory and it is not enough to say, well, there is a sign and there is a building there. It is a question of what the effect of Equity Silver Mines -- Your friend says you can do that. Again, I shutter but he says you can do that. He says you can't say what's your loss by reason of you doing it. Well, what we are saying is what is the impact. He says, as I understand Mr. Goldie, he says you can do that. I think Mr. Goldie's objection arises from the fact that the question was put by Ms. Mandell to Mr. Mitchell was the loss by reason of -- it wasn't Mr. Mitchell. GRANT: Mr. Alfred. COURT: Mr. Alfred, what is the loss by reason of the store or the loss by reason of the railroad. That's the context. As I take it what Mr. Goldie is saying, you can't inquire into the loss caused by non-agents of the non-servants, non-agents to the Crown. GRANT: Yes, but we will establish that that's one of the points. The point is that we intend to establish through the cross-examination that some of these persons are agents and that's the ones that we are particularly interested in. But of course not everyone -- every individual, and it is not a question of fee simple here, my lord. It is a question of the agricultural leases, for example; it is a question of the mining licences and leases. MR. THE GRANT: COURT: 17 18 19 20 21 22 23 2 4 THE COURT: 25 26 27 28 29 30 31 32 33 MR. 34 THE 35 36 37 38 3 9 MR. 40 41 42 43 44 45 46 47 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. GOLDIE: THE MR. COURT: GRANT: THE MR. THE MR. COURT GRANT COURT GRANT 3473 Those kinds of things where the impacts are to be felt. The agreement, Exhibit 20, sets that out and it's a question of -- what was interpreted by Ms. Mandell's question was that when asked what is the loss, it was, would you quantify the loss, then I concede that that is not -- that has been severed by agreement. But if it's by what she said what is your loss, what is the impact on you, that's the issue, and it may be the wording which led to the objection, the wording of the question. Now, my friend also raised the point of -- and I just -- don't want it to go unanswered, that in referring to Mr. Justice Taylor's -- the argument there about the houses as self-contained. Of course and we will be tendering evidence that there is an interrelationship and I think that that's obvious to the court. Well, my lord, we will have to deal with that at the time, but that was very thoroughly argued before Mr. Justice Taylor. Does it rise in connection with this objection, Mr. Grant? Only that Mr. -- no, it only -- Mr. Goldie raised it in terms of his statement and I don't want it to be assumed that that answers the entire issue. There is an interrelationship, there is a plea of the Gitksan and the Wet'suwet'en plaintiffs. The Gitksan plaintiffs as a group and the Wet'suwet'en as a group. One of the final points is that Mr. Goldie said, well, and it may have been again my wording in discussion that -- in comments to the court, that the plaintiffs know what their ownership and jurisdiction is, and it's not for the court to determine what the ownership and jurisdiction means to the plaintiffs. Well -- You're going to the other point now? Yes. All right. This is I think his only comments on the other point when he referred to the Calder case and I agree with him that this is not a replay of Calder. I think there is nobody here that construes it in that way at this stage of the game. In any event, it is our submission that what this court is being asked do find is that in Canadian law there is a recognition of the plaintiff's rights and 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 THE COURT 22 23 24 MR. GRANT 25 THE COURT 26 MR. GRANT 27 THE COURT 28 MR. GRANT 29 THE COURT 30 MR. GRANT 31 32 33 34 35 36 THE COURT 37 38 MR. GRANT 39 THE COURT 40 41 MR. GRANT 42 43 44 THE COURT 45 46 MR. GRANT 47 3474 the rights of ownership and jurisdiction. And that the Canadian law, in order for you to find that, it is important and relevant as to what the ownership and jurisdiction is defined for the Gitksan and the Wet'suwet'en and that's why -- that's why what their understanding what they see as their right is important because that's the context within which you're going to have to interpret the findings and of course it's not a question of the plaintiff's -- they know what they are -- they know what their understanding is. It is a question for the court to recognize it as against others. Now, on -- the only point I wish to re-emphasize there on that last comment, and I think the discussion this morning was very helpful to counsel for the plaintiffs in any event, was to clarify what the court's concern was as well and as I believe Mr. Rush and I both said that we don't see this as sort of a finalization or completion of that discussion or that position. Well, I take what you are saying there is that in argument you will elect which remedies you want to pursue. Yes. Or advance in argument. Yes. Which is a better way to put it. Yes. Well \u2014 But we weren't seeing it as -- what I was concerned of and why I quoted the June 2 6 and July 17 comments was that there was some lack of clarity in my mind as to what in fact the court -- your concern was and this morning that you clarified that as far as the plaintiff's counsel are concerned. Well, do you say that your pleadings raise grounds of relief beyond ownership and jurisdiction? We say that our pleadings -- Not beyond, but in addition to or in substitution for or as alternatives to? Well, as I tried to define to the court, there was components of ownership and jurisdiction in our pleadings and the court may -- No doubt about that part of it. It is the other part. The court may find some but not all of those components. And that's why I wish to say, because I 1 2 3 4 5 6 7 THE COURT: 9 10 11 12 13 14 15 16 17 18 19 2 0 MR. GRANT: 21 22 23 24 25 THE COURT: 26 27 28 29 30 31 32 MR. GRANT 33 34 THE 35 MR. 36 THE MR. THE 37 38 39 4 0 MR. 41 42 43 44 45 46 47 COURT GRANT COURT GRANT COURT GRANT: 3475 wish -- I think it is only appropriate that given the clarification by the court that we express this clarification to the plaintiffs so that they understand what you're asking and that's why I say this isn't the final discussion on that point and why Mr. Rush raised that earlier in the week. Well, I am in -- no doubt what you are saying, Mr. Grant, you of course have to have in mind what Mr. Goldie said. He says that your claim -- and he will argue your claim as pleaded goes only to ownership and jurisdiction and it's a win or loss situation there. You win on that or you lose. He said, and I regard the pleadings as raising all or nothing and I said why, and the note I made of his reply was, \"because of the pleadings\". And it's not for me to say, as long as it is clearly understood, that there is an issue between you and your friend as to whether you are claiming anything in this action except ownership and jurisdiction. Well, I think Mr. Goldie's position was clear and I think that I have -- I think he also has now as well heard the position that I presented today. I am sure that between ourselves we will have lots to dispute. I think you both understand yourself. The problem is whether the pleadings are capable of supporting the possible alternative claims and, at the end of the day, I have no doubt that Mr. Goldie will be arguing that you succeed on ownership and jurisdiction or you fail entirely, and you're able to protect yourself in that regard. Yes. I understand Mr. Goldie's position on that point. All right. Those are my comments in reply. Thank you. Now -- There was this other matter. There are several more. Let me go to my shopping list. Do you want to deal with reporter's fees. Yes, possibly because then I believe there are some -- Mr. Rush would deal with. What I have here is a -- and I -- basically, my lord, I understood from Mr. Rush that what had happened was that subsequent to the January 4th application, I believe it was Mr. Mackenzie of the Provincial Crown team tendered some correspondence. Now, I've reviewed my correspondence and I have -- I 3476 1 am tendering here correspondence between myself and 2 Mr. Mackenzie and Mr. Roy. And it goes back, and I 3 just -- I just want to summarize so the court has 4 the context of it. I believe some of this is 5 probably the correspondence that Mr. Mackenzie 6 tendered just so the court has an understanding of 7 the history of the matter and how this arose. 8 What happened was that in the May and June 9 sessions, accounts were tendered to the plaintiff's 10 counsel which I -- to my office in fact which I 11 reviewed in July which included the cost of the 12 originals. Upon a review of the regulations, it 13 became apparent to me as I set out my July 28 letter 14 to Mr. Goldie that the party ordering the transcript 15 would pay the cost -- the first party ordering the 16 transcript would pay the cost of the original. What 17 happened after that was a series of correspondence 18 back and forth in which I refer to some March 12 19 correspondence which unfortunately is not included 20 here. Mr. Mackenzie had some correspondence with 21 United Reporting and basically the Province took the 22 position they did not order daily transcripts first, 23 that everybody ordered them at the same time on May 24 11 and therefore the plaintiffs pay which was the 25 practice of the reporters. In any event, then we 26 had the September 8 session in which you may recall 27 there was an application for commission evidence and 28 an application for an order under Rule 40 (5) that 29 the commission evidence transcripts be paid by the 30 Province and you allowed that order. 31 Now, after that court sitting, I had a discussion 32 with Mr. Mackenzie and Mr. Roy, and it was 33 determined that Mr. Mackenzie proposed a one-third 34 split for past transcripts, and I would refer you to 35 the -- to the letter -- 36 MR. GOLDIE: Without prejudice. 37 MR. GRANT: Yes. There was a without prejudice, basically to 38 resolve the outstanding matter concerning the past 39 transcripts. 40 THE COURT: Does the letter contain an offer of settlement? All 41 right. Are you claiming privilege, Mr. Goldie? 42 MR. GOLDIE: No, but I don't know what the point of this all is. 43 We reached an agreement and that was it. 44 THE COURT: The offer was accepted. 45 MR. GOLDIE: The offer was accepted. 46 MR. GRANT: The point of it of course is \u2014 the only point of 47 that letter is the without prejudice; that it was 3477 1 the past billings that were agreed to, my lord. 2 That was the point. It settled the matters for past 3 billings. There was no discussion and it was -- it 4 was made clear both in discussions with Mr. 5 Mackenzie and through this correspondence that we 6 were not talking about perspective billings. We are 7 still disputing the effect of the September 8 order, 8 and Mr. Roy became involved on November 9th letter. 9 He had operated under the assumption that the 10 upcoming commissions which included those under the 11 September 8 order were to be billed one-third. 12 Now, what happened was the court clarified the 13 order, I advised Mr. -- in the November 20 letter to 14 Mr. Goldie, I indicated our position that it was the 15 court -- the original was to be paid by the Province 16 and, on December 2nd letter, I advised Mr. Roy that 17 I would be applying to settle the September 8th 18 order so that we could determine who was to pay the 19 cost of the originals. And then on December 23, I 2 0 advised Mr. Roy and that was at the same time that I 21 forwarded the motion to my friends regarding the 22 application on January 4 under Rule 40 (5). 23 So the reason for that history, my lord, is only 24 to put in the context a couple of the letters that 25 Mr. Mackenzie tendered to the court and that 26 basically the debate started about the May and June 27 transcripts. That was sorted out by agreement. 28 Then the commission evidence after September 8 which 29 you had made the order and what your order meant, 30 that was spoken to by counsel and you clarified 31 that, that they were to pay the cost of the original 32 transcripts. And then finally there was the 33 discussion or there was the application on January 34 4. 35 Now, I may suffice to say that in the affidavit 36 that was filed on January 4, there was an estimate 37 that had been given by Mr. Roy of $1,600 a week. On 38 a review of the accounts for the trial transcripts, 39 in fact, it is costing the plaintiff's side about 40 $1,900 a week for the transcripts and that is -- 41 well, let me suffice to say this, my lord, is that 42 there is no doubt in my mind given the trial 43 schedule, given what's happened, that if the 44 plaintiffs are required to pay all or one -- even 45 one-third of the cost of the original transcripts, 46 the plaintiffs -- 47 THE COURT: You are not being asked to pay it all. 1 MR. GRANT: 2 THE COURT: 3 MR. GRANT: 4 5 6 7 8 9 10 11 12 13 14 15 THE COURT: 16 17 MR. GOLDIE 18 19 20 THE COURT: 21 22 THE REGIST 23 THE COURT: 24 MR. GRANT: 25 26 27 28 THE COURT: 29 MR. GOLDIE 30 31 THE COURT: 32 33 MR. GOLDIE 34 35 36 37 38 39 40 41 42 43 THE COURT: 44 45 MR. RUSH: 46 47 3478 One-third. The deal was good for the rest of the trial. Yes. The one-third of the transcripts that the plaintiffs will run out of the funds to cover the cost of the transcripts before -- cover the cost not only of the one-third of the original but of the copies of the transcripts well in advance of the completion of trial. And as Mr. Goldie said of course at that time we could bring on an application for the cost of the originals but of course that would not help the situation in terms of the copies which the plaintiffs would need. And I -- so I am just filing these letters with you just to put the whole matter in context. Have you looked at these letters, Mr. Goldie or Mr. Macaulay? Do they include everything? No, they do not, and they include a couple which didn't come to us. Mr. Grant's letter to United, we didn't get a copy of that. I will have to find the other correspondence then. You don't know where it is, Madam Registrar? IA.R: Which one is this, my lord? The correspondence. I know where I can find it. Yes, and I do agree with Mr. Goldie, but it is clear the ones -- a couple that were sent to Mr. Roy, it appears -- it is clear that whether they are CC'd or not, they are marked on. Thank you. Mr. Goldie, any comment? No. I don't -- our position or our offer is still open. Thank you. Timetable. I think this was your item, Mr. Goldie. Yes, my lord. My present understanding is that we have two more witnesses after the witness who is in the stand now. We think it would be appropriate if our friends could indicate to us what they have in mind after that, both as to the identity and the number of witnesses that they have scheduled. It seems to me that we are in a better position now than we were on January 4th to get a clearer idea of the timetable that we are looking at and the -- what it is that is being called in the way of evidence. Are you able to respond to that, Mr. Rush or Mr. Grant? I think it would assist the court if we were to have some understanding as well from the defendants about how long they think their cases will take and what THE COURT: MR. GOLDIE: 9 10 11 THE COURT: 12 13 14 MR. GOLDIE: 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 4 6 THE COURT: 47 3479 evidence that they intend to call, how many witnesses. Someone has got to go first. Yes, and I think it had better be my friend because a defendant is never able to say how long his case is going to be until he knows what the plaintiff's case is, and we have heard enough today about the imprecision of the pleadings to have some sense that maybe there is some evidence that we are going to have to call that maybe we hadn't planned on. Are you able to indicate, Mr. Goldie, that if your friend goes first, you will be able to make some useful reply depending on of course what he says? Well, it will tell me, for instance, whether I have to have an expert here before the end of June or not. I have got two experts now, one of whom has been cooling his heels and he's gone off on a round-the-world trip as I understand it on a bout of frustration. I have got another witness who is awaiting to have some elective surgery done and he's -- I don't anticipate he is going to be called as a witness but I want him here when my friend's expert dealing with that particular area is called. When we were at the pretrial conferences, my friend was very precise over the number of lay witnesses he was going to call, the number of expert witness he was going to call. Now, what is the problem in telling us how many more lay witnesses he is going to call? We can make our own projections about time based on the rate that we are going, and they are not very encouraging projections, and perhaps what my friend -- may be in a position to say, I am going to call ten more witnesses, five of whom I don't expect to be more than half a day, or something along those lines. And it is absolutely no purpose for me to make calculations or estimates until I know approximately when my friend intends to finish his case and how long he intends to be in getting there. I might point out to your lordship that in another long case that's before the court, the plaintiff has an estimate which he changes every week according to the progress of the case, and he's got it down on a -- witnesses being called on certain days right through until the end of his case. Well, let me change the subject for a minute. Is all the commission evidence taken? GOLDIE COURT: GOLDIE COURT: RUSH: 1 MR. 2 3 4 5 6 THE 7 MR. 8 9 10 11 12 THE 13 14 15 16 MR. 17 18 19 20 21 22 23 24 25 26 27 2 8 THE COURT: 29 30 31 MR. RUSH: 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 3480 : I don't know. I think -- our understanding that there are two -- I can be corrected on this, but there was -- one commission evidence was postponed on the account of illness and I don't know what the situation is with respect to the other. All right. : And we are going to be asking to have a commission -- one commission reopened to provide for cross-examination on a document which came to light after the commission was closed, but that's not the problem. It is the days in court. Yes. Well, I was going to come to the next stage and, at one stage, Mr. Rush, you were talking about filing some 50 or 55 affidavits as I recall. Where does that stand? Well, I don't know how many we are going to file. I can't give you the exact number. I couldn't give it to you then and I was asked when I was pressed similarly for an exact number. My friends are concerned about exactitude which I am afraid I just can't give them with accord but I can say that affidavits, territorial affidavits, are being prepared and we are intending to file them as they are completed or as best we can. So it is a process for us to continue to do that. And of course in doing that so that that evidence will not have to be called in court by us. Well, have any of them been filed yet in exchange to -- so that your friends can be deciding whether they need to cross-examine? Yes. The ones of the witness we have been prioritizing, the completion of the evidence of those witnesses that will be called here and -- or on commission. Much has been made of the affidavit that has been filed by Mr. Stanley Williams. He will be a commission witness. He is likely to be the only other commission witness. Let's hope that we'll be able to do his commission during the period of time of the three week off period we have in late March and early April. And there were a large number of territories spoken to in that affidavit and our priorities are to get those ones done. Apart from that, we are going on to the other ones and getting those finished as we can. But let me say two other things: Firstly, I don't quite accept what my friend says about the difficulty he would have in disclosing to the court 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. GOLDIE MR. RUSH: 3481 the information that he must have about the kind of evidence that he would lead and the duration of that evidence. It is somehow being made to seem here that it's within the plaintiff's control, both the duration of the trial and the duration of an individual witness and I take exception to that. At cross-examination has been lengthy and in some cases twice as long as the direct examination. There is no way the plaintiffs can control that. If my friend wants to closely examine the length it will take to do the trial for an individual witness, he should examine the document books that he brings forward and the length of his cross-examination. It is a matter that we have spoken to your lordship about before, namely, that we call a witness that is directed on specific subjects but the witness must be prepared to answer on all subjects, and all subjects become the matter of a lengthy and pain staking in some cases cross-examination. Now, that is one reason that we the plaintiffs are troubled by the length it is taking to do these -- to take this evidence. We are concerned and deeply concerned about how long the witnesses are taking. And apart from bringing it to your lordship's attention, I don't know what to do about it. We are examining the other witnesses that we are intending to call and, whereas I would have been able to assure your lordship that we would have had X number of witnesses, I think when we started in January I think I indicated to you it was 18 or 20 witnesses. Now my instructions are to re-exam that number, to try to determine whether in fact that number can be further shortened. But again, it is the plaintiffs who are adopting another means by which they must re-assess their case and they must determine how to shave off their evidence to bring it in within reasonable time frames. But what you are hearing again, my lord, is only the plaintiff's side. You don't know a tittle more about the defendants or how long the defendant's case will be, notwithstanding my learned friend's very strenuous submissions a moment ago. You know nothing about it. I think Mr. Goldie told us one time what he anticipated his expert evidence was going to be. Yes. I would be very grateful if he would reiterate it 3482 1 because I don't remember it. 2 THE COURT: I don't remember it either. 3 MR. RUSH: I don't know how many witnesses he is going to call, 4 or how long he thinks it is going to take, or when 5 it will be. 6 THE COURT: Maybe Mr. Goldie will tell us again \u2014 7 MR. RUSH: I'd very much like to hear the same from my friend. 8 MR. GOLDIE: I will go back and get the transcript reference. I 9 have spoken about the expert witnesses we are 10 calling and it hasn't changed and I will give my 11 friend the reference to that. 12 The question that is of the greatest importance 13 is: Who's up to bat next. We have got two 14 witnesses, the preparation for these witnesses takes 15 a long time or a pain staking time as my friend 16 says, and despite his comment that the 17 cross-examination is longer than the evidence in 18 chief, I think statistically that just isn't so. Be 19 that as it may -- 20 THE COURT: That's the problem with statistics and averages, you 21 know. 22 MR. GOLDIE: Yes. 23 THE COURT: Six hundred pounds of canaries is still six hundred 24 pounds. 25 MR. GOLDIE: That's right, and a ton of feathers is still a ton 26 of feathers. Our interest is precise. We want to 27 know who's coming up next and what they are going -- 28 not necessarily what they are going to be talking 29 about but are they lay witnesses or are they 30 experts? 31 THE COURT: Yes. Well, this is a role that I am not sure that I 32 should be involved in at all as it is really 33 counsel's area of operations and it's only a matter 34 of curiosity on my part. I think it is exceedingly 35 helpful to have a reasonable sense of what to expect 36 and the order in which to expect it. I think Mr. 37 Goldie has said what his expert evidence will be. I 38 don't know if he -- he's said what he estimates the 39 length it will be, but are you not able, Mr. Rush, 40 to indicate if you had two more witnesses of the 41 class we are in now, who you will be calling after 42 that? 43 MR. RUSH: My lord, I think we have already indicated that the 44 witness that will be following Alfred Mitchell is 45 Dan Michell. 46 MR. GOLDIE: We know that. 47 MR. RUSH: Yes, you do. That's on the record. 1 MR. GOLDIE 2 MR. RUSH: 3 THE COURT: 4 MR. RUSH: 5 6 THE COURT: 7 8 9 MR. RUSH: 10 11 12 13 14 15 16 17 THE COURT: 18 19 20 21 22 23 24 25 26 27 28 29 MR. RUSH: 30 31 32 33 34 35 36 37 THE COURT: 38 39 40 MR. RUSH: 41 THE COURT: 42 43 44 45 46 47 MR. RUSH: 3483 : Sarah Layton. And then Dora Kenny, Wilson Kenny. Who? Dora \u2014 Wilson Kenny after that, and after that will be Art Matthews Junior. And are they -- for my purposes and only for my curiosity, are they the same kind -- class of witnesses as the ones we have been hearing? Yes. But the witness -- the next three witnesses will conclude, for the most part, the Wet'suwet'en evidence. In Tenimgyet or Art Matthews Junior will be dealing with the Gitksan evidence and will be completing. Then we'll be moving into the balance of the lay witnesses and I -- as I say, I don't think that we are holding anything back here. I don't want this to -- I take -- Well, I am not worried about that, Mr. Rush, but it is usual for the plaintiff to have the best idea of the way the trial will likely flow and the plaintiff has knowledge in that regard that no one else has. I would think that your friends now have the names of the next five witness or four, next five witnesses. Well, that's, I am sure, of some comfort to them. For my purposes, I must again confess to some curiosity. What is -- what do counsel plan to do about the commission evidence? At one time it was suggested that we were going to watch the evidence being given on video. I think that was a suggestion that was made by Mr. Goldie, it wasn't our suggestion. I don't think there has been any discussion at all, any serious discussion with your lordship about how to deal with the totality of the commission evidence. There has been some thought in our mind that you would, rather than seeing the whole of it, you might want to see portions of it. I'd like to have a look at the witness, yes, but I was also terrorized by the fact that somebody said there are some 50 days of it. Yes, I think someone said that. And I wouldn't, unless counsel tell me it is essential, even if they did, I might have some other views on the matter but I prefer not to the look at 50 days of video tape evidence, but I am able to read it but I am not going to read it if I am going to be asked to sit and watch it. Well, from our standpoint, whatever is decided in THE COURT: MR. RUSH: 9 10 THE 11 12 MR. COURT: RUSH: COURT: RUSH: COURT: 13 14 THE 15 16 MR. 17 18 19 THE 20 21 22 23 24 25 26 2 7 MR. RUSH: 28 29 30 31 32 33 34 35 36 37 38 3 9 THE COURT: 40 41 42 43 44 45 46 47 3484 terms of viewing the video, we think it is essential that you read the transcripts. Well, I can terrorize often because I wouldn't read it if I was going to watch it because I would follow it well on the screen and let my eye go from the screen to the transcript and back again. Well, in my view, my lord, it's never been our position that you should sit and watch 50 hours of video. I am grateful for that. I hope Mr. Goldie feels the same. If your lordship is required to watch it, I would hope that Mr. Goldie would, too. I can assure you that all counsel would be expected to stay and watch it. I do think it would be useful if the parties put their minds to the subject and came back to me with some ideas about that. All right. Well -- and the sooner the better because I am not reading any transcripts at the moment because I am waiting for this problem to be resolved. All right. Well, Mr. Rush, are you able to go anywhere beyond your next four or five witnesses that have been mentioned and indicate in what area you think we will get into this then? I think that your lordship must know from the order that you made about requiring 60 days' notice of any further reports of our experts that before we call any of the other experts we must give our friends 60 days' notice, and we have not done so in respect of all of our experts. Our present intention is to proceed with the further Gitksan evidence and that the witnesses that we will be calling will be Gitksan witnesses. I don't want to say at this time who after Mr. Art Matthews Junior will be called because we are frankly reviewing the evidence and it is a matter of concern to us. Well, I think that in -- I think it is fair, I won't go any further than that, that your friends always have three or four witnesses ahead but I won't go beyond that. I think as you call a witness I think the time is probably opportune to give your friends notice of another witness and I would expect them to do the same with you or earlier on when they call their evidence because they won't have any evidence to call as I understand. THE COURT MR. GOLDIE 3485 RUSH: My lord, I -- from my standpoint given the degree of disclosure which has been required of the plaintiffs and is continuing to be required of the plaintiffs, that my friends must have some idea about how long their case is going to take. Even allowing for the fact that they may be required to call other evidence, I would like to hear how long that case is going to be. COURT: So would I. I'd love to hear that. RUSH: The sooner I hear that, the better because that may even alarm me further about how long the case will take or it will tell me that I needn't be as concerned about how the pace of the case is going until June because we know how long and what the schedule is going to be until the end of June. And I think I would be assisted as you would be if we had that knowledge. Mr. Goldie, can you give us any indication how long you estimate as presently planned your defence will take in chief? No. I will go back and look at the submission I made before and if it needs to be updated, I will do so. COURT: I will be very glad if you do that. Mr. Macaulay, are you in a position to give us an estimation? MACAULAY: When I see the amendments to the Statement of Claim, I may be. COURT: I am not sure there is going to be amendments to the Statement of Claim. MACAULAY: Assuming we don't have to enlarge our defence by considering calling oral defence witnesses, I would think that three to five weeks depending on the length of the cross-examination. COURT: Including cross-examination? MACAULAY: Including, yes. That will involve four expert witnesses, two of who -- the evidence in two cases will be very brief. I would think that the cross-examination is -- very narrow topic so in effect two expert witness and some lay witnesses as well. That covers, I hope, three weeks but it could be a little longer. THE COURT: All right. Well, it seems to me that the large \u2014 the two areas -- large areas of uncertainty at the moment are the volume and the cross-examination if any on the affidavits and the length of the defence of the Province. I take it that -- well, I shouldn't take anything as assumption. Have you 1 MR. 2 3 4 5 6 7 8 9 THE 10 MR. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2 6 MR 27 2 29 3 0 MR. 31 32 33 34 THE 35 MR. 36 37 38 39 40 41 42 43 44 45 46 47 THE THE MR. THE MR. THE 1 2 3 4 5 6 7 8 MR. 9 10 11 THE 12 MR. 13 14 15 16 17 18 19 2 0 THE 21 22 23 24 25 2 6 MR. 27 THE 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 RUSH: COURT: RUSH: COURT: RUSH: COURT: RUSH: COURT: GOLDIE COURT: MR. GOLDIE 3486 completed the -- you have furnished a report for the number of experts, Mr. Rush? Reports or summaries of all of them. Yes. How many of them are there? I think there are 22. And they will -- do you have a decision on how many are going to be called? Well, we don't just yet but we are looking at that too. They are not all going to be called I can tell you that. Some will and some won't. Considerable number won't be called by us. I can't advise you as yet as to how many we will call, but we will be -- there were some summary reports that were filed and your lordship directed that further -- that if we are going to file a full report that we give our friends 60 days' notice and we are mindful of that and we are trying to meet that requirement. All right. Well, sounds to me like we are almost finished then. Moving along very well. Mr. Goldie, I will be glad if you could review what you said there and let me have a reference to either what you said or where you said it, and I will be glad to look at it as I am sure Mr. Rush will. : Yes, and if it requires revision, I will do that. All right. I am not sure there is anything more to comment about that. When the time comes, I hope, Mr. Goldie, that you will be able to indicate to your friend for example with both affidavit witnesses for cross-examination, if any, and experts, how long you anticipate you might be in your cross-examination and I think that's the same for what I reasonably expect Mr. Rush will do by way of furnishing you with additional names in order in which they are to be called. : As your lordship will appreciate, the question of lay witnesses so far as the Province is concerned is one that we are making up our minds on as we go along. The expert witness we know, and I don't anticipate that we have changed anything from the estimates that I originally gave. So far as the -- dealing with the affidavits, we will deal with them just as soon as we get them in terms of deciding whether we want to cross-examine on them. I don't believe we have received any affidavits of witnesses who aren't being called so those affidavits simply THE MR. THE MR. 9 10 11 THE 12 13 14 15 MR. 16 17 MR. 18 19 20 21 22 THE 2 3 MR. 24 25 26 27 28 29 30 31 32 33 34 THE 35 MS. 36 37 38 39 40 41 42 43 44 45 46 47 COURT: GOLDIE COURT: GOLDIE: 3487 become part of the area for cross-examination. COURT: Yes. GOLDIE: But we haven't seen an affidavit of a witness who hasn't been called and I'll -- I would anticipate that we could tell my friend very quickly whether we do need to cross-examine and probably an estimate of how long that would be. I think it would be useful to have that information. We were able to give estimates that we -- that we were adhered to on the examinations for discovery. All right. Thank you. The next two items I have are yours, Mr. Macaulay, your map, and something to do with the production of documents referred to and the expert reports. I think Mr. Plant is going to raise a point about an affidavit of Bazil -- MACAULAY: I would emphasize about the miniature map that my friend, Mr. Rush, was going to tell us what his position was on the map today. That's the only reason I have a note of that and my colleague, Ms. Koenigsberg, will address the other. COURT: What can you tell us about that, Mr. Rush? RUSH: I will seriously regret when this matter has been finally concluded as I am getting used to standing up and addressing the subject, but I talked to Marvin George, the cartographer, who advises us on the subject, and he indicated this morning he is delivering a memo and the map to me today. And I think he is returning the map as well as the memo and I should be able to tell my learned friend on Tuesday and at least I think I can be fairly assured of that. He said it would have -- I would have it by Monday for sure. COURT: Thank you. All right. KOENIGSBERG: I think I can very briefly deal with production of documents. It's not bringing it forward at the motion today but rather it has been brought forward a number of times and we have asked our friend for a response in a lengthy letter outlining the proceedings to date on such documents, and I think it would be appropriate to have a time for response for that so we know whether or not if we have to bring on a motion. It would be terrific if your lordship didn't have to deal with that, but you may have to deal with that, and I think it should be dealt with shortly if it does have to come before the court. 1 THE 2 3 MS. 4 MR. 5 6 7 8 9 10 11 12 13 THE 14 15 MS. 16 17 18 19 2 0 THE 21 MS. 22 23 24 25 26 27 THE 28 29 3 0 MR. 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 COURT: KOENIGS RUSH: COURT: KOENIGS COURT: KOENIGS COURT: PLANT: 3488 Your friends know what you are talking about, Ms. Koenigsberg? BERG: Oh, yes. Some of this is a matter of communication with experts, one of whom is out of the country -- two of whom are out of the country. In order to -- we are dealing with it. I can't say -- we are trying to address the subject and try to get back to my friends on that. I think we can have an answer what -- I would suggest to your lordship is we provide an answer on the Monday after the week off so that would be in effect two Mondays from now. Ms. Koenigsberg looks a little perplexed by that suggestion, Mr. Rush. BERG: My perplexion is that it is a topic which is steadily put off and I can recall that it was in July that we received an affidavit talking about the experts being out of the country. I don't know if they are the same experts. Experts are always out of the country. BERG: Yes, I know, it is in the nature of the beast. But if my friend cannot answer it before then, I don't think there is much I can do, except we will have to try and bring the matter on as quickly as possible if it has to be brought on upon receiving that answer. All right. Thank you. Mr. Plant, you wanted to talk about the affidavit of Bazil Michell. Yes. Your lordship may recall that during my cross-examination of Henry Alfred I asked Mr. Alfred some questions of an affidavit which had been sworn by Bazil Michell on December 11, 1987. Bazil Michell is a Wet'suwet'en person who was examined on commission sometime ago and this is an affidavit which had been provided to us the first week of January, just about a month ago, in response to your lordship's directions during the course of the evidence of Mr. Alfred Joseph, and I \u2014 following the questions that I had asked of Mr. Alfred about Mr. Michell's affidavit, I sought to tender the affidavit as an exhibit. My friends opposed that at the time and my recollection is that your lordship wished to consider the matter in light of the ruling which you made last June about the circumstances under which Mr. Joseph could give his evidence. My concern is this: I'd like the matter to be 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 THE MR. THE MR. COURT PLANT COURT PLANT THE MR. THE COURT: PLANT: COURT: 3489 resolved one way or the other soon, if not today, because if the matter is to be resolved against me, then I would make application and indeed do so to reopen Mr. Michell's cross-examination on commission for the purpose of examining him on that affidavit. And I hesitate or I observe the obvious, that the affidavit is a sworn statement by Mr. Michell made by him subsequent to his examination on commission. It deals with matters that he did discuss in his testimony and I wish to alternatively either have the affidavit filed now or, if that is not possible, then to reopen the cross-examination of Bazil Michell for the purpose of examining Mr. Michell on that statement. That's really all I have to say about that. This was an affidavit you put to Mr. Henry Alfred? Yes. And your friend objected? Yes. The objection had -- well, I hesitate to summarize it. I think it was that the evidence of Mr. Joseph when it was hearsay evidence was somehow conditional evidence, and that the plaintiffs had an election about whether or not they were going to pursue the matter of delivering and filing affidavits and really was up to them to do as they wished. I opposed their opposition at the time and your lordship's response was that you wanted to go and have a look at the transcript. Now, for the purpose of this submission I am not -- and my position at the moment is that your lordship doesn't have to go to the transcript because it is really this simple: The plaintiffs have obtained a sworn statement from someone who's already given evidence in this case. I think in those circumstances, I am entitled as a right to reopen my cross-examination of that witness and could do so for a limited purpose of simply putting the affidavit to him, getting him to admit it's his affidavit and then closing my cross-examination. Seems to me with respect it is a more expeditious way -- Couldn't you just prove an affidavit as a document that was furnished by your learned friends? Yes, and perhaps to some extent it is admissible per se as an admission against interest, but -- Or you can call Mr. Michell as an adverse witness and put it to him. 3490 1 MR. PLANT: Yes. That's another option, but the easiest option 2 for my point of view is apply to reopen Mr. 3 Michell's cross-examination. That's also perhaps 4 the safest for two reasons: Firstly, Mr. Michell 5 was, a year and a half ago, a witness who required 6 to be examined in his home in Moricetown because of 7 his advanced age; and secondly, I am given to 8 understand that since then his health has 9 deteriorated rather than improve. Rather than 10 putting him to the trouble of bringing him down 11 here, really all I want is the affidavit to be part 12 of the record, my lord. 13 THE COURT: I take it, Mr. Rush, you are not prepared to waive 14 your objection to this important document. 15 MR. RUSH: My first comment is that I advised my friend -- my 16 friends of the issues that they were going to 17 raise -- that I was going to raise today except for 18 what I think are fairly straightforward matters. If 19 I had known that this matter was coming forward I 20 would have brought a transcript which I photocopied 21 and prepared the argument on it. What I suggest 22 that we do is that you have a look at that. I do 23 think it is relevant despite what my friend says 24 and \u2014 25 THE COURT: What I don't want you people to do today is put me 26 in the position where I have to start ruling on 27 admissibility of evidence because if we ever get 28 into that, this trial is going to be shortened by 29 half and, if I have to start applying the rules of 30 evidence which have been very, very lax up to now, 31 we are going to have a lot of arguments -- I 32 shouldn't say it would shorten the trial, it would 33 shorten the evidence; it would probably take longer 34 for the trial. For example, there is a well known 35 rule that you mustn't put the evidence of one 36 witness to another witness. It is not the purpose 37 of a witness to comment or editorialize on what 38 someone has said. 39 MR. RUSH: My lord, there are other \u2014 40 THE COURT: Mr. Plant may fail if he wants to put Mr. Michell's 41 affidavit to Mr. Alfred and -- but if I have to 42 start ruling on evidence then, as I say, the course 43 of this trial is going to take on a different 44 complexion. 45 MR. RUSH: There are other considerations apart from this strict 46 interpretations that we have about admissibility of 47 evidence and propriety of certain evidence in its 1 2 3 4 5 6 7 8 9 10 11 12 13 THE 14 15 16 17 18 19 MR. 2 0 THE 21 MR. 22 23 THE 2 4 MR. 25 THE 26 27 28 2 9 MR. 30 31 32 33 THE 34 MR. 35 36 37 3 39 40 41 42 43 44 4 5 MR. 4 6 THE 47 COURT: 3491 probative value but be that as it may. One of the reasons that I would have benefited and the court ultimately from some notice on this issue is that I haven't had an opportunity of taking instructions either and I note that Mr. Bazil Michell is a very aging and frail man, and this has been indicated to my learned friend before when he indicated a desire to cross -- re-exam on commission, and that may be a factor that would play in my mind on this issue advising my clients so ultimately I think it is better -- we are all better served if we can put the matter to Monday and allow us a bit of time. I think we should. It seems to me there are ways in which Mr. Grant and Mr. Plant can get this affidavit in and we have only mentioned a couple of them, and I think that you people will apply your minds to it. I think it can probably be resolved fairly quickly. Are you suggesting Monday? Yes. That's what I was suggesting. Are you going to be here Monday, Mr. Plant? Yes. Would it be convenient to deal with it first thing on Monday? I would think so. Certainly. All right. Well, I am sorry, get on with some evidence but Monday's trial assignments so short adjournment. MACAULAY: On concerning my submissions about the Statement of Claim, my lord, I know that your lordship might be inclined to direct the amendments to Statement of Claim be made. COURT: No. I won't be doing that. MACAULAY: But if they aren't made, I will be making strenuous objection to evidence that isn't covered by the allegations in the Statement of Claim and that would be unfortunate. Well, I think the plaintiff is dominus litus insofar as his own pleadings are concerned and I would -- I have no jurisdiction to order the pleadings be amended. If the plaintiffs apply to amend, I will deal with it. If they don't and you have objections, then I will have to hear what that is about. MACAULAY: The railroads are mentioned. COURT: Well, railroads have been getting -- having their own way for so long, I am sure they will expect to RUSH: COURT: GOLDIE COURT: RUSH: COURT: was hoping we might have to make will have to take a THE COURT 3492 1 continue to do so. I will be back as quickly as I 2 can. 3 THE REGISTRAR: Order in court. Court will recess. 4 5 (AFTERNOON ADJOURNMENT AT 3:00 P.M.) 6 7 I hereby certify the foregoing to be 8 a true and accurate transcript of the 9 proceedings herein, transcribed to the 10 best of my skill and ability. 11 12 13 14 15 16 TANNIS DEFOE, Official Reporter 17 United Reporting Service Ltd. 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 3493 1 (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT) 2 3 THE REGISTRAR: Ready to proceed, my lord. 4 THE COURT: Mr. Rush? 5 MR. RUSH: There was one further issue that we wanted to raise 6 and that was the question of the venue of the trial. 7 During the discussion that occurred back last June 8 on this subject, there was an indication by your 9 lordship that you were not closed to the idea that 10 certain phases of the trial may well be venued back 11 to Smithers. This was after you had made your 12 decision to venue the trial to Vancouver. We would 13 propose to you that your lordship change the venue 14 of the trial to Smithers in two respects. One in 15 respect of the calling of some more of the lay or 16 the native evidence, and secondly, in respect of the 17 argument. It is -- it has been a desire of the 18 plaintiffs that your lordship take an aerial viewing 19 of the territory, and we think that it would be an 20 advantageous time if you were to schedule a portion 21 of the balance of the native witnesses to be heard 22 in Smithers for one of the periods of time or more 23 of the periods of time, however your lordship sees 24 fit to order, and at the same time to take the 25 opportunity of doing an aerial viewing of the 26 territory. And we think that sometime later in May 27 or June, depending on the schedule, and 28 unfortunately I would like to be able to propose a 29 specific period to you, but I think that the 30 question of the scheduling of the trial is so much 31 in flux that at the moment I am not in a position to 32 be any more concrete than simply to say that we 33 would propose that you make such a change in venue 34 for the purposes of some of that evidence. 35 Secondly, although it is certainly early to be 36 requesting this, we are asking your lordship to 37 consider changing the venue of the trial to Smithers 38 for the purposes of argument and again I'm unable to 39 assist you about a timing for that, because I think 40 as you've heard from the discussion today that none 41 of the counsel here can be as specific as we'd like 42 to be about when that argument will occur. And much 43 of it, I guess, depends in terms of the speed of the 44 trial over the next few months. So I am asking your 45 lordship to consider these questions and if you -- I 46 don't expect, as your lordship has not expected 47 answers of me, at this point for your lordship to 1 2 3 4 5 6 7 8 THE COURT 9 MR. RUSH: 10 THE COURT 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 MR. RUSH: 33 THE COURT 34 MR. RUSH: 35 THE COURT 36 MR. RUSH: 37 38 39 40 41 42 THE COURT 43 MR. RUSH: 44 45 THE COURT 46 MR. RUSH: 47 3494 make any rulings at this point, but I would like you to consider this, and I will raise it again with you at a time when we can be more specific about the timing. And I think that it's consistent with your lordship's observations and those observations, if you need a reference, appear on page 1815 in volume 26. I am sorry, 1815? 1815 in volume 26, which is June 24. Volume 26. Well, I think Mr. Rush, before I call on your friends, I have been thinking about the argument and another aspect, and I wouldn't want to raise it now, merely to ask whether counsel have given any thought to the form the argument should take. We have found in long trials recently that a written argument or a written summary supplemented by oral submissions is a very convenient way for some counsel and certainly for the judge, because in a case with such difuse facts and issues, it's a lot to soak up if one is just sitting and listening. And the preparation of summary is a useful tool for counsel in that it focuses attention and brings -- sometimes brings a form to it, and we have usually found arguments that are based upon written outlines are substantially shorter than if it's just left open. And I don't know whether counsel have put their minds to the question of the form in which the argument would take. The length of the argument is a factor that we bear on what you're talking about. I don't know whether you have given any thought to the question of argument yet. Yes. That is \u2014 There has been considerable thought given to it. Yes. I have not discussed this fully with my colleagues or my clients, but as a subjective preference I think that a summary is desirable, and it certainly would help to narrow and sharpen the focus of the issues in the case. I don't think I can say very much more than that. All right. I think it seems on the face of it to be a useful way to proceed. Yes. But I think that again that much of that is dependent on the nature of the evidence that we have to hear. 3495 1 THE COURT: Thank you. Mr. Goldie? 2 MR. GOLDIE: My lord, we are obliged to my friend. He gave Mr. 3 Mackenzie some details of what he's been suggesting 4 this morning. And we understood that -- well, we 5 understand there are three points. Firstly, to hear 6 lay witnesses, and my suggestion is that -- or my 7 reaction, I should put it more accurately, my 8 reaction is that it is somewhat premature until we 9 know the number of witnesses and we have a little 10 better handle on it. It may be that we have to 11 integrate this to some extent with cross-examination 12 on affidavits, if that becomes necessary. As to an 13 aerial view -- so as to the change of venue, for the 14 purposes of lay witnesses I think it's -- my friend 15 ought to renew that suggestion when he has an idea 16 of how many he's going to call. If not, the actual 17 people that he will be calling. 18 The second suggestion of an aerial view, it is, of 19 course, I think very much in your lordship's 20 discretion. In the time we've had to think about 21 it, I can see some practical difficulties which I'd 22 like to give a little further thought to. I am not 23 sure that it's -- whether it would be possible to 24 pack this crew into a helicopter or just precisely 25 how this was intended to be done, whether we would 26 have the trapping of an -- all the trappings of the 27 courtroom or whether your lordship would be 28 encouraged to waunder off by yourself. 2 9 THE COURT: I have done that. 30 MR. GOLDIE: I rather thought you had. But those are just some 31 practical questions that occurred to us. And I 32 really don't have anything further to say on that. 33 As to argument, that to me is at least in some 34 measure bound up in the question of the form of 35 argument. As far as we're concerned, my present 36 intention is that there should be a written summary 37 and the oral argument will simply highlight or pick 38 up the points of emphasis. It seems to me that the 39 nature of this case -- and we haven't heard any 40 experts yet. The nature of this case may involve a 41 rather considerable historical review, reference to 42 documents and things like that. I don't know, but 43 it may be that the balance of convenience in terms 44 of access to documents, libraries and so on and so 45 forth, might tip the scales in favour of Vancouver, 46 but I want to say that I'm not expressing any firm 47 views on this matter. It's very much -- very much a 3496 1 matter as I view it in the future and with the 2 exception of hearing the lay witnesses and I would 3 be prepared to consider that when I know 4 the number and the nature of their evidence. 5 THE COURT: Thank you. Mr. Macaulay? 6 MR. MACAULAY: I have no submissions to make on the question of 7 venue, my lord. I can't see how we can make an 8 effective presentation of our argument without 9 having a written summary, not only a written summary 10 but books of documents that we will want to refer to 11 collected in the way that will support our several 12 submissions. As to taking a view, this is a pretty 13 considerable extension of the ordinary taking a 14 view. I don't know what you'd see from the air. 15 How much depends on how high you fly, I suppose. 16 THE COURT: You see a lot of trees. 17 MR. GOLDIE: Boundaries. 18 MR. MACAULAY: Like your lordship, I have been in and out of the 19 Smithers airport, a Federal airport. I managed to 20 pick out the railroads and roads and fields and 21 mountain ranges, but how that's going to help, I 22 don't know. 23 THE COURT: Well, my exploration was pretty well confined to the 24 Highway 16 corridor and I am sure there is much more 25 to be seen than just that. I will have to give it 26 some thought. I am not adverse to a view if the 27 plaintiffs think that it's something to be done. 28 How it's to be done is another matter. There are 29 two theories, and I won't try to state them 30 specifically, but one is that the judge takes a view 31 only for the purpose of assisting him to understand 32 the evidence and the other view is that the view 33 itself becomes part of the evidence, that is that 34 the court sees something that has been mentioned in 35 evidence, he's entitled to take it into account. I 36 am not sure how that would apply to this case. But 37 there are those two theories. And I think the 38 preferred view is that the judge merely looks at the 39 locus in quo for the purpose of assisting him to 40 understand what he has heard about in court. With 41 regard to the other questions, I'm more favourably 42 inclined to allowing the plaintiff to make their 43 argument in Smithers and if it's a limited duration, 44 which it would have to be anyway, then I am to the 45 idea of taking more evidence in Smithers. I make no 46 excuses. I find this a terribly trying and 47 difficult trial and I find myself worn out at the 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 RUSH: COURT MR. RUSH: THE MR. COURT RUSH: 3497 end of a day of this kind of evidence, because it's strange to me and it's terribly weary again. I wouldn't take more than a very few weeks of evidence in Smithers. I just find it far, far too demanding and far too difficult and far too wearying. And I know that it's in everyone's interest to make sure that we get through this trial, and without over-taxing ourselves. I worry about this strain that the trial like this has on counsel. I have been through marathons like this before and I know how difficult they are. And I know they are more difficult on counsel than they are on judges. And if counsel felt anything like I did after six weeks of travelling and hearing evidence, then I think that's a matter that I have to be very concerned about. I assume that there are serious logistical problems to taking all the exhibits back to Smithers, but I suppose that can be overcome. But I'll give it some consideration. I don't want to mislead anyone. I'm not enthusiastic about the idea for the reasons I mentioned. And in addition to that, I have another problem now, and that is the Honourable the Attorney General has established a justice reform committee that is attempting to reinvent the trial process in a very few months and that's taking an enormous amount of my time and is going to take an increasing amount of my time over the next four months or beyond. I understand there has been a -- there is going to be an extension of time to the end of June, to the end of August, I believe, and for that reason I'm more required here than is usually the case. But these matters can be spoken to again. I'll give it some more thought and you can raise it again, Mr. Rush, when you have a specific proposal that you think might be worthy of consideration. Thank you. : All right. Thank you. Do you want to start with evidence or do you want to -- Well, my lord, I know there is not much time left, but I think it would be useful if we could take whatever time we could. : All right. Yes. Thank you. Mr. Mitchell. Mr. Holland. ALFRED MITCHELL, previously sworn: GEORGE HOLLAND, interpreter, 3498 1 previously sworn: 2 3 THE REGISTRAR: I caution you, Mr. Mitchell and Mr. Holland, you 4 are both still under oath. 5 THE COURT: Mr. Mackenzie. 6 MR. MACKENZIE: Thank you, my lord. I will just \u2014 I am going 7 to take the opportunity to hand up the updated table 8 of contents to the document report. 9 THE COURT: Thank you. 10 MR. MACKENZIE: Black document book. My lord, I am handing up 11 plaintiffs' document 5541 to be placed behind tab 14 12 in the document book. All you have there is an 13 excerpt from that document. 14 THE COURT: Oh. Thank you. 15 MR. MACKENZIE: Handing up one document to be placed behind tab 16 12. This is interrogatory number 62 for Mr. 17 Sylvester Williams. That's to go behind tab 12 or 18 where Sylvester Williams' interrogatories are in the 19 black book. 20 THE COURT: This is a further extract from his interrogatories? 21 MR. MACKENZIE: Yes, my lord. Handing up the supplementary 22 document books for Mr. Alfred Mitchell for the 23 evidence we will be getting into, I presume, next 24 week now, my lord. 2 5 THE COURT: Thank you. 26 MR. RUSH: I wonder if my friend could advise whether or not 27 there are any other documents or document books he 28 intends to lead. 29 MR. MACKENZIE: I think that \u2014 I don't want to say finally now, 30 my lord, but I think that finishes off the documents 31 to the end of this witness' evidence. All this 32 material has been disclosed to my friends and as one 33 works through the cross-examination there is 34 sometimes other documents come to light. 35 THE COURT: I think I'll go into the secondhand looseleaf 36 business when the trial is over. 37 MR. MACKENZIE: My lord, at tab 14 of the document book is 38 plaintiffs' document 5541, and I'd ask that that be 39 placed before the witness. Well, we're going to 40 have to open up the map for the witness. My lord, 41 on Friday we were dealing with Exhibit 73G and some 42 questions arose with respect to that exhibit which I 43 hope that we'll be able to clarify Monday morning, 44 but in preparation for that clarification I wish to 45 have this document identified. 46 47 CROSS-EXAMINATION BY MR. MACKENZIE: (Cont'd) 3499 1 Q Now, I ask the witness, then, Mr. Mitchell, to refer 2 to the document 54 -- 5541 before you. You see 3 Goosley Lake on that map? Now, there are some 4 handwritten notes on that map which were on this 5 document when it was received from the plaintiffs 6 and I am going to refer to some of those handwritten 7 notes now, my lord. Now, just down to the southeast 8 of Goosley Lake, do you see Tsee Delk'en on the map, 9 Mr. Mitchell? 10 A Tsee Delk'en, yes. 11 MR. MACKENZIE: I need a spelling for that. 12 THE TRANSLATOR: 298. 13 THE COURT: What is the number? 14 THE TRANSLATOR: 298. 15 THE COURT: T-s-e-d-1-i-k-i-n. 16 MR. MACKENZIE: Just to answer your lordship's comment, that the 17 spelling on this map is different, although the 18 pronunciation appears to be the same. 19 THE COURT: Oh, all right. The number again, please, Mr. 20 Mitchell? 21 THE TRANSLATOR: 298. 22 THE COURT: Thank you. 23 MR. MACKENZIE: 24 Q And then the next location you see the lake Alex, Mr. 25 Mitchell? 26 A 'Al egh Ben. That's this one here. 27 Q Yes. 28 A 'Al egh Ben. It's got no \"Ben\" on it. 29 Q Yes. Could we have the spelling for that, Mr. 30 Mitchell? 31 THE TRANSLATOR: 558. 32 MR. MACKENZIE: And again, the spelling on the map is slightly 33 different from the spelling Mr. Mitchell has given 34 you, my lord. 35 THE COURT: Yes. 36 MR. MACKENZIE: But the pronunciation appears to be the same. 37 THE COURT: Yes. 38 MR. MACKENZIE: 39 Q And moving up to Sam Goosley Lake to the western edge, 40 there is a notation which reads, \"Dock marks 41 approximately location of prints. 7 August '82,\" 42 and one of those signatures looks like \"A. Joseph.\" 43 Now, I am referring the witness to that notation on 44 the map and Mr. Mitchell, is that where the 45 footprints were that you spoke about in your 46 evidence? 47 A Yeah. Right at the end of the lake. This little bit 3500 1 below the lake. 2 Q Yes. 3 A I'd say about four or 500 feet below your lake. 4 Q Yes. So that right at the end of the arrow? 5 A Right at the end of this arrow here. 6 MR. MACKENZIE: Yes. Pointing to the arrow leading from that 7 handwritten notation, my lord. 8 THE COURT: Yes. 9 MR. RUSH: There are in fact two arrows there. 10 THE COURT: Yes. 11 A That second one is the second smaller arrow. 12 MR. RUSH: And the witness says the second smaller arrow. 13 A Bigger arrow is Ben. 14 MR. MACKENZIE: I am sorry, Mr. Rush has a comment. 15 MR. RUSH: No. I was just repeating what the witness said. He 16 just said Ben. 17 MR. MACKENZIE: 18 Q Going over to the headwaters of Buck Creek, there is a 19 notation which seems to say \"blazed corner\" right at 20 the headwaters of Buck Creek at the southeastern -- 21 east of Goosley Lake. Is that the location where 22 you told us about the blaze on the tree, Mr. 23 Mitchell? 24 A The blaze on the tree is right along this Allin Creek. 25 Q Yes. 26 A That's where the boundary is. 27 Q I'll put a \u2014 2 8 THE COURT: I haven't found those words. 29 MR. MACKENZIE: I am sorry, my lord. It may not appear on your 30 lordship's copy. I would ask that the plaintiffs 31 produce the original of this on Monday, my lord, so 32 this can be -- 33 THE COURT: Oh, I'm sorry, I do find it. It's partly obscured 34 by the \u2014 35 MR. MACKENZIE: By that shaded line, my lord. 3 6 THE COURT: Yes. 37 MR. MACKENZIE: That shaded line has been familiar to us in this 38 courtroom. 39 MR. RUSH: Familiar to some anyway. 40 THE COURT: This says \"blazed corner.\" 41 MR. MACKENZIE: Yes, my lord. My lord, if Mr. Rush is able to 42 bring in his original of this on Monday, perhaps the 43 handwritten comments will be clearer. 44 THE COURT: Well, I don't need it for that. 45 MR. MACKENZIE: Thank you, my lord. 46 THE COURT: Unless you need it for some other reason. 47 MR. MACKENZIE: I ask that that be produced at any rate, my 3501 1 lord. 2 MR. RUSH: Why? 3 MR. MACKENZIE: So that we can read the comments. Some of them 4 are not as clear as I would hope that they are on 5 the original. 6 MR. RUSH: Well, if it's not clear, then we will try to get it, 7 but I don't see there is any lack of clarity by 8 anyone in the courtroom as yet. 9 MR. MACKENZIE: Sorry, my lord. Whether they are clear or not, 10 I would request that the original be produced 11 because this is a photocopy. We have done the best 12 we can. But we received this document in pieces and 13 we taped it together and then had a photocopy made 14 of the taped document. So it's not as clear as I 15 would hope the original might be. 16 THE COURT: No one has told me, but I assume from some of these 17 maps that that is the headwaters of Buck Creek, is 18 it? It flows firstly west and then northerly to the 19 Bulkley River. 20 MR. MACKENZIE: 21 Q Is that correct, Mr. Mitchell? 22 A This Allin Creek, that's where that middle starts. 23 Q Yes. 24 A It starts right there, it goes down to \u2014 into Goosley 25 Lake. 26 Q That's Buck Creek that flows into Goosley Lake, isn't 27 it, and it flows -- 28 A Buck Creek is below Goosley Lake. 29 Q Yes. 30 THE COURT: Does Buck Creek not flow into Goosley Lake? 31 A After it starts Goosley Lake, that's what we call it 32 Buck Creek. 33 THE COURT: Yes. And it flows into Goosley Lake from the east 34 and flows out to the west, does it? 35 A Oh, what we call this here is -- 3 6 THE COURT: I \u2014 37 A Neel dziis Tl'aat Kwe. 38 MR. MACKENZIE: Could we have the spelling of that, please? 39 A Neel dziis Tl'aat Kwe. It goes into Goosley Lake and 40 after it passes here, after it passes our boundary 41 then they call it Buck Creek. 42 MR. MACKENZIE: Yes. If we get the spelling I will repeat what 43 the witness just said. The witness was referring to 44 the \u2014 45 A Neel dziis Tl'aat. 46 MR. MACKENZIE: Do we need the spelling for that, Mr. Mitchell? 47 THE TRANSLATOR: Yes, you do. 3502 1 MR. MACKENZIE: Could you give that to his lordship, please? 2 THE TRANSLATOR: N-e-e-1 underline \u2014 3 A Kwe. 4 THE TRANSLATOR: \u2014 d-z-i-i-s T-l-'-a-a-t K-w-e. 5 THE COURT: That's Buck Creek, isn't it? 6 MR. MACKENZIE: That \u2014 7 A It's got no white man name for that. 8 THE COURT: Oh, all right. 9 A Buck Creek is down below. 10 THE COURT: All right. 11 A North of Goosley Lake. Buck River they call it. 12 MR. MACKENZIE: Now, the witness was pointing to the creek on 13 the map as marked Buck Creek, east of Goosley Lake. 14 THE COURT: Yes. 15 MR. MACKENZIE: And he was pointing out that this flows \u2014 this 16 creek that he referred to flows westerly into 17 Goosley Lake and then it flows out of the western 18 end of Goosley Lake and again it's called Buck Creek 19 on this map. 2 0 THE COURT: Yes. 21 A This will be right, but this is wrong. 22 MR. MACKENZIE: Okay. 23 MR. RUSH: He's pointing to the easterly portion of the creek as 24 being wrong. In the -- 25 MR. MACKENZIE: Yes. 26 Q Now, this creek, what's its name? That's Neel dziis 27 Tl'aat, isn't it? 28 A Neel dziis Tl'aat Kwe. 29 Q Neel dziis Tl'aat Kwe. And it's flowing west -- 30 A Into \u2014 31 Q -- into Goosley Lake? 32 A Yes. 33 Q And now, referring to a handwritten notation northwest 34 of Goosley Lake, just where the word \"Morice\" 35 appears, and that's the place where two creeks meet, 36 isn't it? And what did you tell us the name of that 37 place was? 38 A Yeah, that's L diits L a yis. 39 Q Could we have the -- 40 A L diits L a yis. 41 MR. MACKENZIE: Could we have the spelling for that, please? 42 THE TRANSLATOR: 597. 43 MR. MACKENZIE: 44 Q Now, the spelling on the map at that location again is 45 different than the spelling Mr. Mitchell has given, 46 but the pronunciation appears to be the same. And 47 now, my lord, the witness has identified several 3503 1 features on this map. And, Mr. Mitchell, as a 2 result of your examination of this map, can you 3 agree it's part of the area around Sam Goosley Lake? 4 A What I just named, that's the name of the place I just 5 named. 6 MR. MACKENZIE: Yes. Thank you. My lord, I would submit this 7 document be entered as the next exhibit. 8 THE COURT: All right. 9 THE REGISTRAR: Exhibit 241, tab 14. 10 11 (EXHIBIT 241: Tab 14) 12 13 MR. MACKENZIE: I might point out, my lord, that the document 14 appears to be a map produced by the Canadian 15 Department of Engineering, Mines and Resources and 16 the scale is said to be 1 to 50,000, and the title 17 of that map -- the title of the map which appears at 18 the bottom of that exhibit is Colleymount, 19 C-o-l-l-e-y-m-o-u-n-t, British Columbia. And my 20 lord, that map which is now Exhibit -- 21 THE COURT: 241. 22 MR. MACKENZIE: 241, will be a useful reference \u2014 a reference 23 map for the detail of the various creeks and the 24 heights of land in this part of the territory. And 25 my lord, I wonder if I could direct your lordship 26 to - I know your lordship has put that map away - 27 Exhibit 241, but I wish to direct your lordship to a 28 feature on that Exhibit 241 which arises out of the 29 discussion yesterday at the end of yesterday. I 30 request that your lordship refer to that Exhibit 241 31 briefly. And my lord, at volume 56 of the 32 transcript page 3423. 33 THE COURT: Page? 34 MR. MACKENZIE: Page 3423. 35 THE COURT: Yes. 36 MR. MACKENZIE: Starting at line four your lordship and I had a 37 discussion about the Foxy Creek area on this -- 38 which can be seen on this map, Exhibit 241, and does 39 your lordship see Foxy Creek mentioned just 40 northeast of Goosley Lake? If your lordship goes up 41 beyond the shaded line -- 42 THE COURT: Yes. I see Foxy Creek, yes. 43 MR. MACKENZIE: Yes. And your lordship could see also noted on 44 there, that is at the headwaters of Foxy Creek the 45 name Lu Lake, L-u Lake, a small lake. 4 6 THE COURT: Oh, yes. 47 MR. MACKENZIE: And then can your lordship see flowing out of Lu 3504 1 Lake, Blue Creek just flowing out of the western -- 2 correction, the eastern shore of Lu Lake, Blue Creek 3 and that flows into Foxy Creek. Does your lordship 4 see that? 5 THE COURT: Yes. 6 MR. MACKENZIE: And my lord, that Foxy Creek, as your lordship 7 will have seen now, continues to flow east and then 8 north, and as the witness has said, it flows 9 eventually up into the Maxan Lake and Maxan Creek 10 Indian reserve country. As going up the creek, my 11 lord -- 12 THE COURT: A place I have often been. 13 MR. MACKENZIE: Where Lu Creek joins Foxy Creek. 14 THE COURT: Yes. 15 MR. MACKENZIE: If your lordship could proceed along Foxy Creek 16 you'll see that there is a small creek also flowing 17 into Foxy Creek just past Lu Creek. Comes from the 18 south flowing into into Foxy just before Foxy Creek 19 turns. 2 0 THE COURT: Yes. 21 MR. MACKENZIE: Well, that is something I wish to direct your 22 lordship to when I read this portion from the 23 transcript. 24 THE COURT: All right. 25 MR. MACKENZIE: Starting at line four on page 3423. And my 26 lord, this discussion was relating to Exhibit 73G, 27 which was Mrs. Emma Michell's commission, Exhibit 2 28 map, and we were discussing the easterly boundary as 29 appeared on that map which is Exhibit 73G. And I 30 said, \"My lord, can you see how the boundary moves 31 around?\" And the court, \"You mean the easterly 32 boundary?\" And I said, \"Yes, my lord. Northeast 33 portion.\" The court, \"Yes. You say that's covering 34 over a creek?\" And I said, \"Yes, my lord.\" The 35 court, \"I see. It does extend out of the bottom. 36 You say that's Foxy Creek.\" I say, \"I'm suggesting 37 that, my lord.\" And the court, \"I see. You say 38 that one of the branches of Foxy Creek swings south 39 and that's the boundary?\" And I say, \"Yes, my 40 lord.\" And then the court, \"Well, can Mr. Mitchell 41 tell us whether he agrees with that or not?\" And I 42 said, \"Yes, my lord.\" Well, my lord, I am raising 43 this because I may have misunderstood your lordship 44 and I wanted to make clear that we saw the behavior 45 of Foxy Creek at this point that we were discussing, 46 and if you will recall and we will see this in more 47 detail on Monday, Emma Michell's map had the 3505 1 boundary following along down Foxy Creek just 2 turning east -- turning west where Foxy Creek turns 3 west and then coming south to the height of land 4 that you can see really directly south of that creek 5 to which I directed your lordship's attention. 6 A Mr. Mackenzie, can I correct this? 7 MR. MACKENZIE: Yes. 8 A I just \u2014 9 MR. MACKENZIE: Mr. Mitchell disagreed with that boundary. I 10 think that's clear. He doesn't think that's the 11 boundary. But we -- your lordship and I were 12 discussing that particular geographic location on 13 the map. 14 A On \u2014 15 MR. MACKENZIE: 16 Q Okay. Mr. Mitchell, yes. 17 A Oh, I got this ahead of Foxy Creek we call this G'oh 18 k'ets ha t'ai. 19 Q Yes. 20 A And we got Tsee zuul ts'ak on it. 21 Q Excuse me. Could we get the spelling for that, 22 please? 23 A Tsee zuul ts'ak. That's not the name. 24 Q Could we get the spelling for those, please? 25 THE TRANSLATOR: G-'-o-h k-'-e-t-s h-a t-'-a-i. 26 MR. MACKENZIE: And then the next one? 27 THE TRANSLATOR: What was that? 28 A Tsee zuul ts'ak goes this way. 29 MR. MACKENZIE: Excuse me. We will just get the spelling and 30 we will be able to --. 31 THE TRANSLATOR: 556. 32 MR. MACKENZIE: Now, my lord, the witness is referring to Lu \u2014 33 to what is known as Lu Lake on this map, Exhibit 34 241. 35 THE COURT: Yes. 36 MR. MACKENZIE: And the witness is referring to the handwritten 37 notation which appears beside Lu Lake. 3 8 THE COURT: Yes. 39 MR. MACKENZIE: On Exhibit 241. And as the witness has said before, he disagrees with that name being attributed to this lake. And Mr. Mitchell is saying that the Indian name, the Wet'suwet'en name should be attributed to another lake. Is that correct, Mr. -- Yes. And you made that point yesterday as well, Mr. Mitchell? 40 Q 41 42 43 44 45 A 46 Q 47 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 3506 A Yes. MACKENZIE: Well, my lord, that's all that I wish to discuss with respect to that document Exhibit 241. All right. Thank you. All right. Can we take the rest of the week off and we will resume Monday morning at 10 o'clock. I take it there is no news of Ms. Mandell? No, there isn't. Thank you for inquiring. The court expects to be informed. 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