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Delgamuukw Trial Transcripts
British Columbia. Supreme Court
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.
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18807 J. P. Tourond (for Province) In Chief by Mr. Mackenzie 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 THE THE THE MR. THE MR. THE MR. REGISTRAR: In the Supreme Court of British Columbia, this 17th day of July, 1989. In the matter of Delgamuukw versus hear Majesty the Queen at bar, my lord. May I remind you, sir, you are still under oath? WITNESS: Yes. REGISTRAR: Would you state your name for the record, please? A James Peter Tourond. COURT: Mr. Mackenzie? GRANT: My lord, before Mr. Mackenzie starts, I have a matter to raise with your lordship concerning the next witness. And I have been in correspondence with my friends concerning production of documents and at quarter to six last Thursday evening I received a reply from Mr. Willms in which he indicated that they were not going to produce the documents that we had requested for Mr. Shelford. I understand that Mr. Shelford is scheduled to commence tomorrow. I wish to raise this now because I would like -- I do not want a delay in cross-examination as a result of late production or non-production of these documents relating to him. And the documents come in -- that I have requested -- come in a series of forms. One of the concerns raised by my friends was that the initial demand was -- they couldn't respond to it and, as a result, I faxed to them -- and they also objected to the form of Notice to Produce -- so I faxed to them a subpoena duces tecum for Mr. Shelford and I also specified and was more clearly specified each of the documents that I wish. And in light -- I have not yet received a response to that, although Mr. Willms says he is going to reply to me today on that, but it's not very satisfactory, my lord, because I wish to have an opportunity to reviews these documents before the cross-examination. COURT: Do you have any right to that with a non-party witness? GRANT: Well, the Notice to Produce relates -- the documents I am concerned about that I have a right to are documents that I say are relevant and that should have been listed by the provincial defendant, have not been listed by them. COURT: You you are not talking about Mr. Shelford's documents? GRANT: I agree, the documents he should bring with him are ones that -- that has to be dealt with after he takes the stand. I agree with that. And I am not asking 18808 J. P. Tourond (for Province) In Chief by Mr. Mackenzie 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. MR. for those early production. But I am concerned that my friends are saying that they are -- certainly implied that they are not going to request him to produce any documents in any event, and that could lead to problems. What are the documents that you say the defendant should have for which you have asked for production? GRANT: There is a trapline — WILLMS: If I could rise at this point, simply -- I advised my friend this morning there is a letter coming over to my friend which deals in detail with his letter which we got sometime late Friday. I can't remember when. It doesn't really matter. And once he reads that letter I am sure that whatever requests my friend may have for documents may be changed by the response contained in the letter. The letter is a detailed response to Mr. Grant's four or five page letter on Friday. And I really think -- and I suggest that if my friend would wait until -- and the letter is being typed up right now, I should have it in my friend's hands by the morning break, and if there is something further that arises out of this we can deal with it at that time when my friend is more fully informed. Well, my lord, the difficulty with this is this, that I had -- I was very specific about the particular documents and my friend -- I requested them before court, I said "Well, what is your position on these documents?" and he says, "Well, just wait for this letter." Quite frankly, my lord, I -- the original request was made over a week ago, and I am at a loss. For example, the first is the trapline files -- When did you know that Mr. Shelford was going to be called? GRANT: We received the summary -- WILLMS: A month ago. GRANT: We received the summary -- just a moment. We requested -- we knew Mr. Shelford was going to be called over a month ago. The requests for these productions is out of the summary we requested on June 27th, relating to Mr. Shelford. And we received that summary sometime after that. The summary was provided in the 14 days. It was provided in the first week of July. Well, is there a problem in waiting until after the morning break to see what your friend's letter says? Whether it clarifies the problem or narrows it? If it doesn't, is there any advantage to dealing with it now MR. GRANT THE COURT MR. MR. MR. THE COURT 309 J. P. Tourond (for Province) In Chief by Mr. Mackenzie 1 instead of an hour and a half from now? 2 MR. GRANT: I am in your lordship's hands with respect to that. 3 I am prepared to deal with the matter now. 4 THE COURT: I don't think we should interrupt the evidence of a 5 witness unless it's necessary to do so. It may not be 6 necessary. But I think we should carry on with the 7 witness and you may speak to the matter after the 8 morning adjournment. 9 MR. GRANT: Thank you, my lord. 10 11 JAMES PETER TOUROND, Resumed: 12 13 CROSS-EXAMINATION BY MR. MACKENZIE: (Continued) 14 15 MR. RUSH: Before you get underway, there was another matter you 16 asked us to advise you about, it is the question of an 17 argument on certain motions. 18 THE COURT: Yes. 19 MR. RUSH: It deals with the question of the admissibility and 20 objections taken to certain of the expert opinion 21 reports. And an argument on what has been termed as 22 the treatises, and we -- the plaintiffs take the 23 position that we would like to have Mr. Shelford's 24 evidence completed before the argument begins. But we 25 are also prepared to do the argument on Friday. And 26 we are, in terms of timing, we would see the argument 27 on the treatises issue being raised first and 28 proceeding with that. We think that that's a matter 29 of some concern by both sides. We should try to get 30 that dealt with first and proceed with the dealing 31 with the expert opinion reports and the objections 32 taken to those on Friday. And if we can't finish on 33 Friday, we go to Monday. But our view is that we 34 would like to see Mr. Shelford's evidence finished 35 before any of that starts. 36 THE COURT: Will Mr. Shelford's evidence take more than three 37 days? 38 MR. RUSH: We were told it would take is to Friday. But that's 39 in any friend's hands. 4 0 THE COURT: Can the argument be conveniently done in a day? Why 41 can't we have -- 42 MR. WILLMS: We are prepared to do the argument whenever Mr. 43 Shelford concludes, whether it be Thursday or Friday 44 or Thursday afternoon. 45 THE COURT: All right. Will you be ready as early as Thursday 46 afternoon? 47 MR. RUSH: We hadn't planned to be. We said we had anticipated 18810 J. P. Tourond (for Province) In Chief by Mr. Mackenzie 1 it would go on Friday but I can check on that. 2 THE COURT: I think we should try to use up the time so we won't 3 be caught short of time at the end. But let's see how 4 we get on and see if you can be ready on Thursday. If 5 Mr. Shelford is supposed to take two days, I am sure 6 it will take longer than that. 7 All right. Mr. Mackenzie? 8 MR. MACKENZIE: 9 Q Mr. Tourond, on Friday you told us that you had known 10 Matthew Sam and his family, do you recall that? 11 A Yes. 12 Q Did Matthew Sam, or members of his family, visit your 13 home on occasion? 14 A Yes. 15 Q And was this when you were growing up? 16 A Yes. 17 Q And can you recall -- and did Matthew Sam or any 18 member of his family ask you at any time to assist 19 them with making telephone calls, for example? 20 A Yes. 21 Q Can you tell his lordship what those occasions or what 22 that occasion was? 23 MR. RUSH: Well, perhaps my friend can be more specific. Is it 24 Matthew Sam or his wife or who? I think it should be 25 clear what circumstances we are talking about. 26 MR. MACKENZIE: 27 Q Yes. Could you please explain the circumstances to 28 his lordship? 29 A On at least two occasions that I can remember, Matthew 30 Sam's wife, Amelia, came to our place and requested 31 that the RCMP or to phone the RCMP on matters that 32 were happening at the reserve, like that they were 33 being beaten upon. Amelia had been cut on the face, 34 she was bleeding, and she wanted the RCMP to come out 35 and settle the matters. 36 Q Did she say who was beating her? 37 A She said it was -- she mentioned the names of some 38 Skin, Skin Indians, the native people. 39 Q Who are those people? 40 A They are a family of native people that live across 41 Francois Lake in the Skins Lake-Uncha Lake area, 42 somewhere in that country. 43 Q How old were you when this incident occurred? 44 A I think I was early teens. 45 Q So that would be sometime -- sometime between 1960 and 46 1969? 47 A Yes. 18811 J. P. Tourond (for Province) In Chief by Mr. Mackenzie 1 Q And on those occasions when Matthew Sam or members of 2 his family came to your home, did they ever speak 3 about their house or their clan? 4 A No, they did not. I have never been aware of them 5 ever saying anything about their house or clan. And I 6 don't know -- it's only recently that I ever heard 7 that they had a house or a clan. 8 Q And in what circumstances did you find that out? 9 A A year ago when I was working on some of the maps, 10 when I was working with the Ministry of Forests. 11 Q You spoke about Bill -- who is Bill Sholtie? 12 A Bill Sholtie is a native person living on the reserve, 13 the Takla Reserve, at present. 14 Q And have you had occasion to give him transportation 15 into Houston and back? 16 A Yes, I have many times he has caught a ride with me to 17 Houston and from Houston back to his place. 18 Q When did these occasions take place? 19 A Throughout the summer and winter, whenever he was 20 living there. 21 Q How long ago did that go back? 22 A Over the last six years or so. 23 Q How many times a year would you be doing that for him? 24 A Oh, once or twice a month. 25 Q Did you have occasion to chat with him during those 26 rides back and forth to Houston? 27 A Yes, we carried on conversations about an hour drive 28 from his place to the town of Houston and he carried 29 on conversations. 30 Q Did he ever mention his house or his clan to you? 31 A No, he did not. 32 Q Did he ever speak about his house or his clan 33 territory? 34 A No, he did not. 35 Q And has Bill Sholtie, on occasion, come to your or 36 your parents -- I am sorry, come to your home to 37 borrow things? 38 A Yes, he has. He has come to our place to borrow sugar 39 or to buy eggs, we sell eggs on occasion, and tobacco 40 from my parents' place. 41 Q Have you spoken -- who is Shirley Wilson? 42 A Shirley Wilson is a native person living on the east 43 side of Tatla Reserve. 44 Q And have you spoken to her or her family during the 45 years you have lived across from the Tatla Reserve? 46 A Yes, she has come to our place to visit with my wife. 47 Q And have you been present on those occasions? 18812 J. P. Tourond (for Province) In Chief by Mr. Mackenzie 1 A A few occasions I have been in the house. 2 Q How often would that take place? 3 A Oh, it's maybe taken place three, four times in the 4 last three years. 5 Q And did Shirley Wilson speak on those occasions about 6 her house or her clan? 7 A I never heard her speak of such. 8 Q Did she speak about house or clan territories? 9 A No, I have never heard her speak of such. 10 Q Now, did you see Matthew Sam trapping? 11 A I saw Matthew Sam going on to the -- or going to the 12 trapline and coming back with furs, beaver. 13 Q Where was that? 14 A That was north of the reserve towards Tsichgass and 15 south of the reserve to -- in the Long Lake-Rainbow 16 Lake area. 17 Q Have you seen anyone else trapping in that area 18 recently? 19 A Yes, I have seen John Mould trapping in that area. 20 Q Have you ever seen Roy Morris trapping in that area? 21 A No, I have not. 22 THE COURT: You told me but I have forgotten, is John Mould a 23 native or a white? 24 A He is non-native. 25 THE COURT: He is not a native? 26 A That's right. 27 MR. MACKENZIE: 2 8 Q Have you seen John Mould hunting? 29 A I have not seen John Mould hunting on site other than 30 he has told me he has hunted and I have seen wild meat 31 at his place that he has said he has taken -- 32 MR. RUSH: I object to any hearsay. 33 MR. MACKENZIE: 34 Q And have you seen anyone trapping at Nadina Lake? 35 A James Macallian. 36 Q And you mentioned him before, he is a white person? 37 A Yes. 38 Q Do you have knowledge of who has the trapline in that 39 area? 40 A It's a native trapline. 41 THE COURT: Did you say Nadina Lake or Nadina Mountain? 42 MR. MACKENZIE: Nadina Lake, my lord. 4 3 THE COURT: Thank you. 44 MR. MACKENZIE: 45 Q And how do you know about the traplines in the Nadina 46 Lake area? 47 A While working with the Ministry of Forests, we have 18813 J. P. Tourond (for Province) In Chief by Mr. Mackenzie 1 registered trapline maps and a corresponding list of 2 registered trappers that corresponds to the registered 3 trapline map and numbers. 4 Q And can you say, generally, whether there are native- 5 held registered traplines in the area west of Francois 6 Lake? 7 A Yes, there is. 8 Q And can you say whether those traplines are being 9 trapped? 10 MR. RUSH: I object to that. 11 MR. MACKENZIE: 12 Q Would you have any way of knowing whether those 13 traplines are being trapped, without answering the 14 first question? 15 A Well, with my travels relating to the Forest Service 16 work and my travels relating to my personal life, I 17 had not seen native people trapping in those areas 18 other than what I mentioned previously. 19 Q Is there any other reason why you would be familiar 20 with the trapline boundaries west of Francois Lake? 21 A Relating to my Forest Service work, we had to notify 22 registered trappers when logging was going to take 23 place and I was also be involved when Barry Grainger's 24 trapline was being sold to obtain maps and to 25 determine size of area, which made me aware of the 26 traplines surrounding Barry Grainger's former 27 trapline. 28 Q Have you attended any native feasts or potlatches? 29 A No, I have not. 30 Q Now, you spoke on Friday about forest recreation 31 sites. I am showing you a map which has been marked 32 as Exhibit 44A, for identification, does that map set 33 out the locations of the forest recreation sites in 34 the area you described? 35 A Yes, it does. 36 Q And are those forest recreation sites which you 37 described on Friday currently in use? 38 A Yes. 39 THE COURT: What is the exhibit number again, please? 40 MR. MACKENZIE: 44A for identification, my lord. 41 THE COURT: Thank you. 42 MR. MACKENZIE: I understand that exhibit has been marked as an 43 exhibit proper for a limited purpose, my lord. 44 THE COURT: All right. 45 MR. MACKENZIE: 4 6 Q I am showing you a map -- 47 MR. RUSH: I wonder if you would show it to me first, please, 18814 J. P. Tourond (for Province) In Chief by Mr. Mackenzie 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. RUSH before showing it to the witness? MR. MACKENZIE: Oh, yes. Q I am showing you a map which has been marked as Exhibit 54A, and this is on quadrant five of the forest cover series, dealing with grazing permits, and on Exhibit 54A grazing permits are said to be set out in an area enclosed by red line, quadrant five depicts the southwest corner of the land claims area from just west of Francois Lake over to the divide, continental or the mountain ranges west of Morice Lake, and there are some grazing permits depicted just northeast of Poplar Lake, going up towards Nadina Mountain and east to just west of Francois Lake. Can you say whether those -- and there is another grazing permit shown on the Owen Creek Road, just to the east of the Owen Creek Road; can you say whether those grazing permits are in use? RUSH: I object to this, my lord. MACKENZIE: Q Sorry, would you have any knowledge of whether those grazing permits are in use? Again, I object. The question is really one of knowledge of (a), the grazing permit; and, (b), the depiction of an area that is suppposedly covered by such person on this map and there is nothing that we have heard so far to indicate that this witness has any knowledge of at least the latter point and its mapping. He has given some evidence of grazing permits, I have seen nothing to qualify this person to give evidence about its geographic portrayal on the map. THE COURT: I suppose the witness could say what he has seen with respect to grazing on the map. RUSH: And he has already done that. COURT: Yes. RUSH: He has already been asked questions about what he has seen with regard to grazing permits and where he has had direct involvement. MACKENZIE: I am now directing him to a map, my lord, an area covered this this map fairly specifically. COURT: I think the witness can say what he has seen to the map. I don't think he can go beyond that. MACKENZIE: Q Do you have any means of knowing that the grazing permit areas shown on this map are in use? A Yes. Q What means of knowledge would you have? MR. THE MR. MR. THE MR. 18815 J. P. Tourond (for Province) In Chief by Mr. Mackenzie 1 A By seeing cattle grazing on the area and being 2 somewhat involved with the grazing lease through my 3 time working through the Ministry of Forests. 4 Q Referring to the area east of Poplar Lake, and the 5 basis of the sources of knowledge you have just 6 mentioned, is that area in use for grazing permits 7 today? 8 A Yes. 9 Q And referring to the area Owen Creek, based on the 10 sources of knowledge you have mentioned, is that area 11 in use for grazing permits? 12 A Yes. 13 Q I am referring to the map which is quadrant six of 14 Exhibit 54A, now this map depicts the -- it's Exhibit 15 54A. 16 MR. RUSH: These are for identification, right? 17 MR. MACKENZIE: Yes. 18 THE COURT: What is the number again? 19 MR. MACKENZIE: 54A for identification, quadrant six. 20 Q And this depicts the area north and south of Francois 21 Lake and as far south as the southern, southern 22 portion of the land claims area and it appears to have 23 grazing permits outlined with red lines. Can you 24 indicate to his lordship your familiarity with those 25 permit areas, if any? 26 A I am only familiar with two areas. 27 Q Yes, which ones are those? 28 A One area that is on the north side of Francois Lake, 29 extending west towards Park Lake and east towards 30 Parrott Creek and north to Tsichgass Lake and the 31 other area is north of Clemretta. 32 Q Could you spell that, please? 33 A C-L-E-M-R-E-T-T-A. 34 Q Where is that? 35 A That's about 12 miles east of the west end of Francois 36 Lake and it extends up Parrott Creek. 37 Q This is the grazing permanent area you're talking 38 about? 39 A Yes. And east towards Colleymount. 40 Q Where is Colleymount? 41 A Colleymount is about 25 miles east to the west end of 42 Francois Lake and the grazing permit extends north to 43 the height of land towards Goosley Lake. 44 Q His lordship is familiar with Goosley Lake, having 45 landed there by helicopter. 46 Based on the -- and is your knowledge of these 47 permit areas similar to or, sorry, are the sources of 18816 J. P. Tourond (for Province) In Chief by Mr. Mackenzie 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 your knowledge regarding these permit areas similar to the sources of knowledge you have just mentioned with respect to the other areas? A Yes. Q And based on that knowledge, can you tell his lordship whether these grazing permits are in use? A Yes, they are. Q When you say they are in use, what did you mean by that? A That cattle are grazing upon the permits. Q On the areas subject to the permits? A Yes. Q Mr. Tourond, you have spoken about your travels in the area west of Francois Lake, do you recall having said that over the last two days? A Yes. Q Do you know of anyone else who has travelled in that area as much as you since you moved back to the west end of Francois Lake in 1981? MR. RUSH: I object to this, my lord. THE COURT: Why? MR. RUSH: Well, there is no foundation for this, it can be that he is out there watching other people doing the same thing he is or he has heard it from somebody else. THE COURT: Well, he has been asked, do you know of anyone who travels more than you do in that area? His means of knowledge may be questioned, but if -- and it may not be a particularly useful answer if it isn't developed more, but surely a person who is living in the area would come to know some things about the area and one of the things that he would know is who he has seen travelling around as much as he has. MR. RUSH: Well, I don't object to that. I am objecting to any hearsay component to the answer. THE COURT: All right. Mr. Mackenzie, I think the question is an unobjectionable one. It may not have much force if it isn't developed more but I don't think the question itself is one that I would stop this witness from answering. MR. MACKENZIE: Q Can you answer that question? A I do not know of anyone else who has travelled in that area more than I have. Q On what is the basis of your knowledge about that subj ect? A Well, in my line of work with the Ministry of Forests, I travelled in that area to carry out my forest 18817 J. P. Tourond (for Province) In Chief by Mr. Mackenzie 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 A Q A Q A Q MR. MR. THE THE MS. THE related duties and during hours that I was not working with the Ministry of Forests I travelled in that area for my own enjoyment or my own business endeavours. And do you know anyone else living in the community who has travelled as much as you have in that area of your own personal knowledge? I am not aware of anyone else. Do you know of anyone else who has travelled as much as you in that area west of Francois Lake since your return to Houston in 1974? No, I do not. To your knowledge, did any other member of the Forest Service staff travel as extensively in that area as you did? I know they have not. Based on your years of residence in the community at the west end of Francois Lake, your years of working in the area west of Francois Lake, your discussion over the years with white and native residents in the community, what is the general understanding in the community as to the ownership of land, apart from private land and Indian reserve land? I object to this question. The question calls for a hearsay response and it's basically built on supposition that the witness has discussed the premise of the question with other people who are living -- Well, I think that the question may not be artistically framed, and I am hesitant to say more than that. I think the area is one that the defendant is entitled to explore. And I think it can be asked in a different way or it might be asked in a different way. There is a classic question that is usually posed in this area, if one uses the magic words it seems to be all right but if one doesn't use the magic words it's subject to objection. MACKENZIE: Q What is the reputation in the community as to the ownership of land apart from privately-owned lands and Indian reserve land? A That the land belongs to the people of the province. MACKENZIE: Thank you, Mr. Tourond. That completes our examination, my lord. COURT: Thank you. COURT: Ms. Koenigsberg, any questions? KOENIGSBERG: No, my lord. COURT: Thank you. Mr. Rush? MR. RUSH THE COURT 18818 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 J. P. Tourond (for Province) In Chief by Mr. Mackenzie CROSS-EXAMINATION BY MR. RUSH: MR. RUSH: Thank you, my lord. Q Mr. Tourond, you told us that there was a map of the Gitksan-Wet'suwet'en boundaries on the wall at the Forest Service office in Houston? MR. MACKENZIE: Sorry, my lord, I think my friend may be misstating the evidence. I think Mr. Tourond said he worked with a map showing the boundaries. MR. RUSH: Well he can say my understanding is wrong. THE COURT: Do you understand that's what he said? MR. RUSH: Yes, at page 18805 at line 42 he said: "Q And prior to this court case were you aware of the territories of the house or clan boundaries for the native people? A Yes. I saw a map on the Forest Service office with some -- with names on it." THE COURT: Yes. The problem I suppose is the "hanging on the wall." MR. RUSH: Well, he can say it wasn't hanging on the wall. THE COURT: No, it's more serious than that, Mr. Rush. Counsel are entitled to put something to a witness as a statement of fact attributing it, as I think you did, to the witness. MR. RUSH: I will change it, my lord. I am happy to strike off the phrase "on the wall." Q Mr. Tourond, let me ask you again: You said there was a map of the Gitksan-Wet'suwet'en boundaries on the forest, at the Forest Service office in Houston? A I worked with a map at the Forest Service. Q Was it on the wall? A No, it was not. Q Where was it? A It was on the table for the short time I worked with it. Q For the short time that you worked with it. When did you work with it? A About a year ago. Q That was this time last summer? A Roughly. It could have been a little earlier in the spring. I am not quite sure. Q Was that the first time you had seen it? 18819 J. P. Tourond (for Province) Cross-exam by Mr. Rush 1 A Yes. 2 Q And who drew it to your attention? 3 A I was asked by my supervisor to help this other 4 individual collect some information that they wanted 5 and in the area that was pointed out to me on the map. 6 Q On that map that you were shown. What did it say on 7 the map, how was it identified, please? 8 A I don't really remember what the identification on the 9 map was . 10 Q Do you remember what the date was? 11 A The date on the map? 12 Q Yes. 13 A No, I don't. 14 Q Do you remember any of the names on the map? 15 A I was told they were native names and they appeared -- 16 they looked like native names to me. 17 Q And the person that you were told to help, that was 18 Mr. Mackenzie? 19 A The person I was helping in the office was not Mr. 20 Mackenzie directly. 21 Q Did you help Mr. Mackenzie at any time? 22 A I understood that Mr. Mackenzie had asked for the 23 office to help on the map but at that time I wasn't 24 aware that it was Mr. Mackenzie exactly that I was 25 helping. 26 Q All right. And did you directly help Mr. Mackenzie 27 sometime after last summer of 1988? 2 8 A In what way? 29 Q In any way? Did you travel around with him and show 30 him places? 31 A No, I did not. 32 Q Did he come to your office and were things pointed out 33 to you by him? 34 A No, he did not point anything out to me. 35 Q And when is the first time you had direct personal 36 contact with Mr. Mackenzie? 37 A It was last month. 3 8 Q Last April or last -- 3 9 A June. 40 Q Last June. 41 A June or end of May, somewhere in there. 42 Q All right. And this map that you looked at, the 43 Houston Forest Service office, were you asked to point 44 out certain things on this map? 45 A I think I was asked to identify logging areas within 46 the different areas that were pointed out to me. 47 Q And who was it that pointed out those different areas 18820 J. P. Tourond (for Province) Cross-exam by Mr. Rush 1 to you? 2 A One of the -- the fellow that I was working with. 3 Q And you did that? 4 A I did that, yes. 5 Q This is from your knowledge of the logging shows in 6 the area south and west of the Nadina River? 7 A Yes. 8 Q Did you mark them on another map? 9 A No, I did not. 10 Q Did your supervisor? 11 A Not that I am an aware of. 12 Q Now, did you take any photographs of areas in the -- 13 that were shown on that map? Did you go out and 14 travel around on the roads of the areas shown on the 15 map that you saw and take photographs? 16 A No, I did not. 17 Q Did at any time anyone tell you to take photographs in 18 the course of your travels or your activities in the 19 areas shown in the map that you saw? 20 A No, they did not. 21 Q You were a forestry technician up until April 30th, 22 '89; is that right? 23 A Yes. 24 Q And then did you quit? 25 A Yes. 26 Q And as I understand your job, you were -- your job was 27 to make inspections of timber sales? 28 A Timber sales and other forest tenures, yes. 29 Q Yes, I am going to just ask you about one or two of 30 these other ones. You went to places, as I understand 31 it, the large part of your job was to go to places 32 where contractors were clearing timber and you checked 33 logging methods out where these logging shows were? 34 A That was part of the job, yes. 35 Q Isn't that the biggest part of the job? 36 A That would be 50 percent of the job. 37 Q As I understand your job, you basically were 38 inspecting logging sites to see if the contractors 39 were complying with cut plans? 40 A When I was inspecting the loggers, yes, that's what I 41 was doing. 42 Q And you made -- in the summertime another part of your 43 job was to make sure those contractors had fire 44 supressant equipment? 45 A Yes. 46 Q I guess you will agree with me, will you, Mr. Tourond, 47 that when you were out at the places where these 18821 J. P. Tourond (for Province) Cross-exam by Mr. Rush 1 logging shows were located, southwest of Francois 2 Lake, there weren't any hunters and trappers around 3 those places, were there? 4 A Not during the hunting season. 5 Q Or any time? 6 A Yes, there is hunters near where they are logging. 7 Not right on the block they are logging but on the 8 roadways leading to the logging areas. 9 Q Where the logging takes place, Mr. Tourond, there 10 aren't any hunters or trappers, are there? 11 A Yes, there is. 12 Q There are? In the area you have seen hunters and 13 trappers in the area where logging is going on? 14 A As I say, not on the block that the logging is going 15 on but in the roads leading to the block that the 16 logging was taking place. 17 Q Because you will agree with me, won't you, Mr. 18 Tourond, that hunting and trapping and logging, they 19 don't mix, do they? 20 A Well, I would agree to that to a certain extent. 21 Q And is it your understanding, Mr. Tourond, that the 22 contractors who are authorized to cut timber in the 23 area southwest of Francois Lake were authorized to cut 24 timber only if they clear cut? 25 A Yes. 26 Q Mr. Tourond, I want to show you a letter -- 27 MR. MACKENZIE: Could I see the letter, please? 2 8 MR. RUSH: 29 Q I want to show you a letter, if you will just look at 30 this letter. You said in the course of your evidence 31 that in the latter years of working with the Forest 32 Service you sent letters to trappers? 33 A Yes. 34 Q Is the kind of letter that is shown as Exhibit 489 the 35 type of letter that you sent to trappers? 36 A Similar. 37 Q And presumably that letter is dealing with not your 38 area where you had responsibility, but you sent 39 letters like that to trappers in the area where you 40 had responsibility involving the logging southwest of 41 Francois Lake; is that right? 42 A Yes, I sent a similar letter. 43 Q Okay. Now, in your knowledge of those areas, and in 44 respect of those trappers to whom you sent letters, do 45 you know of any situation where the ministry altered a 46 logging plan or changed a cut because of a protest by 47 a trapper? 322 J. P. Tourond (for Province) Cross-exam by Mr. Rush 1 A 2 Q 3 4 A 5 Q 6 7 A 8 THE COURT 9 MR. RUSH: 10 THE COURT 11 THE REGIS1 12 Q 13 14 15 A 16 Q 17 18 A 19 Q 20 21 22 A 23 Q 24 A 25 Q 26 27 28 A 29 30 Q 31 32 A 33 Q 34 35 A 36 Q 37 A 38 Q 39 40 A 41 Q 42 43 44 A 45 Q 46 47 A I can't think of one. And when did you start sending letters like this to trappers in the course of your work? I think it started three, four years ago. And before that time, I take it you had no experience in sending letters like the one that's in 489? That's correct. : May I see Exhibit 38 -- what is it? 489. : 489. Thank you. PRAR: It's tab 7. You were born in Vanderhoof in 1949, you have told us, and do you remember the year you entered public school? Would it be around 1955? Yes. And when did you enter high school? Would that be around 1962? Thereabouts. In -- between '62 and 1970, as I understand your evidence, Mr. Tourond, you attended high school in Burns Lake? Yes. And you told us you graduated in 1970? Yes. And you told us that while you were going to high school in Burns Lake you lived at a dormitory or you boarded there during the week? I lived at a dormitory or I also lived with friends or boarded at their place. That's what I think you said. So during the week you spent your time at Burns Lake? Yes. And what's the distance from Burns Lake to Nadina River? 5 0 mi1e s. 50? Yes. In '70 to 71, as I understand your evidence, you travelled to Australia and New Zealand? During the winter months, a five month period there. Well, you graduated in '70 and then this five month period you went to Australia and New Zealand; is that right? Yes. in '72 you joined the Forest Service and moved to Terrace? Yes. 18823 J. P. Tourond (for Province) Cross-exam by Mr. Rush 1 Q And you lived for two years in Terrace? 2 A Basically, yes, I lived for two years there. 3 Q Well, I am just trying to understand that from the 4 period of 1972 to 1974 you were living in Terrace? 5 A Yes. 6 Q Now, I don't know whether or not you -- when you 7 answered that you meant to include Smithers, but for 8 one month of that period you -- 9 A Yes, for one month at the latter part of the second 10 year I lived in Smithers. 11 Q And was it in that period that you got married? 12 A No, it was not. 13 Q When did you get married? 14 A Ten years ago. 15 Q All right. Do you have children? 16 A Yes. 17 Q How many? 18 A Two. 19 Q Now, while you were living in Terrace, I take it that 20 you didn't get back to Nadina Lake very often or 21 Nadina River, rather? 22 A Are you saying Nadina River? 23 Q Nadina River. 24 A I probably came back two weekends out of a month. 25 Q In '74 you moved to Houston? 26 A Yes. 27 Q And that's when you went to work with the Forest 28 Service? 29 A I worked with the Forest Service previous to that. 30 Q As well? 31 A As well. 32 Q But you were working in Houston with the Forest 33 Service? 34 A Yes. 35 Q And you lived in Houston? 36 A Yes. 37 Q And is it right to say that for eight years, from 1974 38 to 1982, you lived in Houston? 39 A Yes. 40 Q That's -- and you worked in Houston? 41 A I worked out of the Houston office which my area of 42 responsibility was south of Highway 16 towards Ootsa 43 Lake and west of Francois Lake in the Morice Forest 44 District. 45 Q Am I right, Mr. Tourond, that the administrative 46 office for that district is in Houston? 47 A Yes. 18824 J. P. Tourond (for Province) Cross-exam by Mr. Rush 1 Q And you carried on administrative work out of that 2 office, didn't you? 3 A Yes. 4 Q And I understood your evidence to be that you worked 5 out of that office and you said that you thought for 6 about two days a week you did -- you were out of the 7 office or you were travelling somewhere? 8 MR. MACKENZIE: Well, my lord, my friend has mis-stated the 9 evidence incorrectly in the last three questions. 10 First of all, he had Mr. Tourond in Houston until 1982 11 and secondly he told Mr. Tourond that he worked two 12 days a week when the evidence is at least three days a 13 week. 14 MR. RUSH: Well, my lord, by my count, which of course isn't 15 that great, my note of his evidence was that he spent 16 eight years living and working in Houston and from 17 '74, I take that to be '82. Now, if that's a problem, 18 I am sure the witness can help us here. My 19 understanding of the evidence was that he has worked 20 two days in the office. 21 Q Now, on both of these matters Mr. Tourond, maybe you 22 can help us . 23 A I usually worked two days in the office and three days 24 in the field. 25 Q All right. When did you move to Houston? 26 A When did I move to Houston? In 19 — 1974. 27 Q And when did you leave Houston? 28 A Nine years ago. 29 Q It's nine years ago? 30 A Yes. 31 Q '81, is that it? 32 A If this is '89, yes. 33 Q All right. Well I want to understand, Mr. Tourond, my 34 understanding of your job was that you do a number of 35 administrative tasks which are done at the Houston 36 office; is that right? 37 A Yes, the paperwork is done at the office. 38 Q And some of the paperwork that you said you did at the 39 office was looking after grazing permits; is that 40 right? 41 A I assisted the person who was looking after the 42 grazing permits with information. 43 Q All right. Tell us what other administrative work you 44 did there? 45 A Well, I looked after reforestation, looked after 46 protection, both fires and insect protection work, 47 mining, FUP's, For Use Permits, Special Use Permits, 18825 J. P. Tourond (for Province) Cross-exam by Mr. Rush 1 woodlots, gravel pits, Special Use Permits and other 2 small permits like that, Burning Permits, both large 3 and small. 4 Q These were permits that you issued or in some way 5 administered? 6 A Yes. 7 Q And you say that you did that two days in the office, 8 that's your evidence, is it? 9 A Well, part of the administrative would be in the 10 office but also we had to inspect a lot of these areas 11 in the field before we actually drew up the permit or 12 the document. 13 Q And what was the year that you moved away from 14 Houston? 15 A To Francois Lake? 16 Q Yes. 17 A '80, '81. '81, I think. 18 Q '81. And did you continue to work at the Houston 19 office? 20 A Yes, I did. 21 Q And did you continue to do the administrative work 22 that you told us about at the Houston office? 23 A Yes. 24 Q So it's correct to say, is it, that from 1981 or 25 '80-'81 to the present, or to April 30th, I guess, 26 1989, you continued to work out of the Houston office; 27 is that right? 28 A Yes, and I commuted to my place at Francois Lake every 2 9 day. 30 Q You did that every day, did you? 31 A Yes. 32 Q And that's along the Morice-Owen Lake Road? 33 A Yes. 34 Q And did you continue to work what you estimate to be 35 those two days of administrative work in the Houston 36 office? 37 A Yes. 38 Q From '81 to '89? 39 A If would vary, sometimes maybe I would work three 40 days, four days, if there was a project that had to be 41 done in a short period of time. 42 Q Or maybe a whole week? 43 A There might be occasion, yes. 44 Q And the work that you're doing now, since you left the 45 office of the Ministry of Forests I think you said 46 contract work, is it? 47 A Yes. 18826 J. P. Tourond (for Province) Cross-exam by Mr. Rush 1 Q And it's contract work of the kind that you were doing 2 while you were with the Ministry of Forests? 3 A Yes. 4 Q Do you have any option to return to the Ministry of 5 Forests? 6 A You mean like they would give me a certain length of 7 time that I could return, is that what you mean? 8 Q Yes, could you go back there? 9 A I could if I reapplied and if there was room, I guess. 10 I didn't burn any bridges. 11 Q What I mean to say, you're not on a leave of absence 12 or anything? 13 A No. 14 Q Now, Mr. Tourond, I have reviewed your mother's report 15 and declaration of guide outfitters, these are 16 Exhibits 1097 to 1101. And I am going to summarize 17 for you the times and places which those reports 18 indicated that you personally guided and I would like 19 you to agree or disagree with me. 20 And if those could be placed in front of Mr. 21 Tourond. Have you looked these over, Mr. Tourond, 22 before testifying? 23 A Have I, did you say? 24 Q Yes. 25 A No, I haven't looked these over. 26 Q All right. Do you have the set for 1984 in front of 27 you, Exhibit 1097? 28 A Yes, I do. Yes. 29 Q And, by my reading of the reports filed by your mother 30 for the year of 1984, you guided from October 8th to 31 October 19th for a total period of 11 days. 32 MR. MACKENZIE: Did you want the witness to add up the 33 various -- does Mr. Rush want the witness to add up 34 the various reports to determine the length of time? 35 THE COURT: Well, I don't know, but if, Mr. Rush, I think by his 36 question has summarized, I gather, what these -- what 37 he says these reports say. 38 MR. RUSH: I am prepared to go through these, my lord. 39 THE COURT: Well, is it necessary? 40 MR. MACKENZIE: My lord — 41 MR. RUSH: Perhaps what I will do is just go through the first 42 one with him. 43 THE COURT: All right. 4 4 MR. RUSH: 45 Q Exhibit 1097, Mr. Tourond, if you look here at this 46 report for 1984, it shows you to be the guide in the 47 place for the name of the guide, do you see that? 18827 J. P. Tourond (for Province) Cross-exam by Mr. Rush 1 A 2 Q 3 4 A 5 Q 6 A 7 Q 8 A 9 Q 10 A 11 Q 12 A 13 Q 14 15 16 A 17 Q 18 19 20 21 A 22 Q 23 24 A 25 Q 26 27 28 29 MR. macke: 30 31 32 33 34 MR. RUSH: 35 36 37 MR. macke: 38 39 40 41 42 43 MR. RUSH: 44 45 THE COURT 46 MR. RUSH: 47 Q one-day hunt? to October 13th? next two do not pertain to your guiding. Mr. Tourond, is that it comes Yes. And it shows that this hunt was from October 8th, do you see that? Yes. And apparently it was a Apparently. The next is October 8th Yes. And the next is October 15th to October 19th? Yes. And the next is October 15th to October 19th? Yes. And then the But my reading of that, to a number of 11 days? Yes. And in your perusal of those, as I took you through them, my understanding is that for the most part in 1984 you guided at Nadina River, Duck Lake, Poplar Lake and the Shelford Hills; is that right? Yes, that gives a general geographic location. And those areas are all, relatively speaking, close to one another? Relatively speaking. In 1985, my reading of your mother's guiding reports, Mr. Tourond, if you will look at the next exhibit, 1098, and I am just going to cite this to you, is that you guided from September 2nd to 4th? JZIE: Excuse me, Mr. Rush. Perhaps, my lord, Mr. Rush -- we could assist with the -- with this by suggesting that Mr. Rush give the number of days and the witness could verify during the break to confirm the number that Mr. Rush has calculated. Well, I am not going to go through the file seriatim but I think I will go to the questions that will lead to the number of days. JZIE: Mr. Willms has just added up the 1984 and he comes to 17 days, that's opposed to the 11 days Mr. Rush has calculated. We had occasion earlier last week where there was a difference between Mr. Willms and Mr. Rush in figures. But I don't know if this is something we could confirm for -- during the break. Well, I am going to put these to my friends and they can do the arithmetic. : Go ahead. Now, Mr. Tourond, I would like you to look again at J. P. Tourond (for Province) Cross-exam by Mr. Rush 1 2 3 A 4 Q 5 6 THE COURT 7 MR. RUSH: 8 Q 9 10 11 A 12 Q 13 14 A 15 Q 16 17 A 18 Q 19 20 A 21 Q 22 A 23 Q 24 A 25 Q 26 A 27 Q 28 29 A 30 Q 31 32 A 33 Q 34 35 A 36 Q 37 THE COURT 38 39 MR. RUSH: 40 41 Q 42 43 44 45 46 47 1985, please, and Exhibit 1098, and you guided from September 2nd to the 4th? Yes. And then September 15th and 16th and September 23rd to 27? : Sorry? September 23rd to 27. And September 30th to October the 5th. And that comes to a total of 17 days, as my calculation indicates; is that right? Well, without adding up the days -- Well, I will just ask you to check these over the break and maybe you can confirm that for me, okay? Yes, okay. And you have flipped through those, have you, Mr. Tourond? Yes, I have. And again my reading of these shows that you guided at Sibola Mountain? Mountains. And Ahtna Lake? Yes. And Morice Lake and Kidprice Lake? Yes. And they are all relatively in the same area? What do you mean by relatively? Well, they are grouped, are they not, at the west end of your guiding area or your mother's guiding area? Yes. And Kidprice and Morice Lake are reasonably close together in geographic relationship? Yes. And Ahtna and Sibola -- Ahtna is certainly relatively close to Morice Lake, isn't that right? Yes. In 1986 -- : Could we take the morning adjournment before you go on? Maybe I will give my friends my counts of the dates, and the days. In 1986, Mr. Tourond, you needn't refer to this now, but my count indicates that there were 24 days that you spent guiding; in 1987 my count indicates that you spent 25 days guiding, personally naturally; and in 1988, 13 days; and no days in 1989. Now, I would like you, if you will, you can take those documents away and just check the numbers that I 18829 J. P. Tourond (for Province) Cross-exam by Mr. Rush 1 have indicated to you and if you can confirm that or 2 whatever your estimate is, that would be fine. 3 THE COURT: Thank you. 4 5 (PROCEEDINGS ADJOURNED FOR SHORT RECESS) 6 7 8 9 10 I hereby certify the foregoing to be 11 a true and accurate transcript of the 12 proceedings herein to the best of my 13 skill and ability. 14 15 16 17 18 19 Wilf Roy 20 Official Reporter 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 18830 Submissions by Mr. Grant Cross-exam by Mr. Rush 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 (PROCEEDINGS RESUMED AT 11:30 a.m.) THE REGISTRAR THE COURT MR. RUSH: THE COURT MR. GRANT Order in court. Mr. Rush. I think Mr. Grant wanted to raise a question of the documents with you. Oh, yes. Yes, my lord. I now have a response for my friend which does shorten some of the matters down, but the central issues between the parties here and Mr. Shelford as the first witness of the defendants who was -- as you are aware he was an M.L.A. and was the -- a minister for a period of time, and amongst the documents and his summary indicates that he is going to give evidence that he never heard of a land claim in the Lakes District area for a number of years until very late on, late on, according to the summary, when he was -- after he had been a minister and an M.L.A. Now, it's our position, my lord, that in view of the defence, paragraph 36, about administrative actions and in view of the Provincial defendant and the tenor of their cross-examination and the tenor of their evidence that conduct of the plaintiffs in not pursuing a land claim, and this is tenor of evidence of witnesses we have now heard from the defendants, makes increasingly relevant those cabinet minutes of decision or cabinet documents which relate to the policy of the Provincial defendant with respect to Indian land claims prior to the commencement of the action. And this comes to fruition in my letter -- my letter of July 11, which was responded to on July 13, which I then responded again to on the 14th, I have responded again to today, in which they have said: "I have requested all minutes of the Executive Council between 1968 and '72 and 1978 and '79 while Mr. Shelford was a cabinet minister which refer to or discuss the government's policy regarding Indians and land claims." And I had the Notice to Produce. On July response, they said: in their "We do not know and would not know, except after undertaking a difficult and lengthy search where the documents described in, inter alia, that item 18831 Submissions by Mr. Grant Cross-exam by Mr. Rush 1 9 exist." 2 3 And then they reiterate that today by basically 4 saying: 5 6 "As to documents in government ministries, we 7 believe those documents in the action have been 8 disclosed." 9 10 And I have requested correspondence from the minister 11 of agriculture, I have done archival searches, and 12 they are not in the Archives. I have reviewed the 13 document lists of the Provincial defendant and there 14 is no correspondence from the minister -- the former 15 minister of agriculture, Mr. Shelford, at all that's 16 listed other than three letters that my friend points 17 out to me while he was an M.L.A. and not a minister, I 18 believe, and then he says that they are not -- they 19 conclude that further searches are unreasonable. 20 Now, firstly, my lord, I find it remarkable that, 21 (a) the Provincial defendant does not have 22 documents -- cabinet documents relating to Indian land 23 claims in this period of time, '68 to '72. You may 24 recall this is the time of the commencement of the 25 Calder decision but of course we are not discussing 26 privileged correspondence here about instructions to 27 solicitors but cabinet -- but policy of the 28 government, so the land claims issue was certainly of 29 great relevance I would submit to the Provincial 30 defendant at the very time when this man was the 31 minister of agriculture and he would have known of 32 that. That goes directly against what his summary of 33 evidence suggests. 34 Similarly, I would be surprised that the counsel 35 for the Provincial defendant have no knowledge of such 36 documents or cannot be obtained. 37 Now, they have indicated -- I have also requested 38 correspondence from and to Mr. Shelford relating to 39 these documents and today they have indicated he has 40 none, and they have indicated they only have located 41 three, so I am not -- they have in other words 42 responded to that request but what remains outstanding 43 is this question, and of course I can canvas this 44 further with the witness in due course, if there is 45 anything else. But what they have now -- what I am 46 seeking is those cabinet documents while he was the 47 minister, which is a very short period of time, of his 18832 Submissions by Mr. Grant Cross-exam by Mr. Rush 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 term of office which relate to Indian land claims policy. And the very -- you are being given one side of a picture, I would submit, my lord. : Well, that's always the way in a lawsuit. I hear the one side when the plaintiffs are giving the evidence and I hear the other side when the defendants are giving theirs. : Well, no. I am saying in total on this one issue, in that you are hearing that, in the cross-examination by the defendants of the plaintiff's witnesses and through the witnesses the defendants are leading, that the issue as being raised fully that the plaintiffs or their persons did not raise the issue of land claims until very late in the day. But the other side of that issue is what -- of course we don't agree with that and that's an issue between the parties, but what was the response; in other words, what was the context in which that was dealt with? And that I say is relevant to your lordship. The leading case appears to be the Gloucester Properties case of the Court of Appeal which I have for your lordship, just as it's -- and of course Chief Justice Nemetz at the time gave the decision and, on page 69, he refers to the -- of course the Crown was arguing for an absolute privilege but after reviewing the common law and the Crown Proceeding Act he states at page 69, the third paragraph from the bottom, after reviewing all of that law: "In our opinion the rule of law which exists in British Columbia as referred to in Section 9(2) of the Crown Proceeding Act is that an assertion of privilege by the Crown with respect to cabinet minutes and discussions does not attract an absolute privilege. The claim of privilege will prevail only when it is necessary in the public interest. The Court will weigh the facts in each particular case to determine whether the public interest in the administration of justice should prevail over the interest in nondisclosure." And then the last paragraph of that page: "Most of the authorities to which reference has been made deal with disclosure of documents. As indicated earlier counsel for the Crown sought to distinguish between a qualified privilege 18833 Submissions by Mr. Grant Cross-exam by Mr. Rush 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 attaching to documents and an absolute privilege attaching to discussions in a cabinet meeting. There is no basis in principle for drawing such a distinction." And then he goes on to the process and the -- that an affidavit was filed and it was of course leading to examination for discovery in the Gloucester Properties case. Now, my lord -- MR. MACKENZIE: Excuse me, my lord. Could we have Mr. Tourond leave the witness box during the argument? THE COURT: Oh, yes. Yes. (WITNESS STOOD DOWN) MR. GRANT: It's my submission, my lord, that it is -- and of course the issue was also raised about the use of a Notice to Produce and of course it is unusual here, but we are now, although very late in the trial, document lists are being produced by all parties as the trial is proceeding by agreement, so it's not the documents that are listed that we are concerned about; it's the question of the production of documents which are not listed. And it's my submission that these documents should be disclosed, and in order to properly cross-examine this witness, ultimately I submit that all the cabinet documents relating to the Indian land claims policy should be disclosed, but for the purposes of cross-examining this witness, those documents between 1968 and 1972, while he was in the cabinet, and December 1978 and the 1979 election, while he was in the cabinet, those two periods of time should be disclosed. And I understand that that is not -- I do not know if that's a large volume of documents but it is a very narrow period of time and certainly, I submit, that that material should be disclosed. This is not material that is available to the plaintiffs. The final point that my friend did not have an opportunity to reply to but I had requested was guide outfitter returns for the period of time when he was a guide outfitter and that came to my attention later although it was -- THE COURT: Who was a guide outfitter? MR. GRANT: Mr. Shelford appeared to be either an assistant guide outfitter or a guide outfitter. 18834 Submissions by Mr. Grant Cross-exam by Mr. Rush 1 THE COURT: All right. Well, Mr. Willms or Mr. Mackenzie? 2 MR. WILLMS: Well, my lord, I just want to know, is my friend -- 3 the request that was sent with the Notice to Produce 4 and then with the purported Subpoena that we received 5 Friday goes far, far beyond what my friend is 6 requesting now. Is he abandoning his request for the 7 rest of the material or are we going to hear that 8 later? I would like to know my friend's position on 9 all of the material that he requested in his Notice to 10 Produce and the purported subpoena that was faxed to 11 us so we can deal with it all at once rather than in a 12 hodgepodge kind of way. 13 MR. GRANT: Well, I understood, my lord, that my friend had 14 responded to the other matters today in that he 15 indicated -- I had requested documents, correspondence 16 in Mr. Shelford's possession and he said: 17 18 "We understand Mr. Shelford does not have in his 19 possession any document answering your 20 descriptions." 21 22 Then I had requested documents, correspondence to and 23 from him as an M.L.A. and my friend responds that 24 documents created by an M.L.A. aren't now and they 25 never are in the custody of the government of the day, 26 so he there is answering me by saying Mr. Shelford 27 doesn't have the correspondence and we don't, so it is 28 not there. And then he says as to documents in 29 government ministries. Now, my request is very 30 specific there. It's correspondence while he was the 31 minister. Just a moment. It is correspondence while 32 he was the minister -- first of all, all documents 33 directed to him while an M.L.A. and the minister for 34 Indian people, and then all documents from Mr. 35 Shelford as the minister directed to Indian leaders 36 discussing Indian land claims issues, discussing 37 traplines, discussing guide outfitting, discussing 38 conflicts between farmers, ranchers, settlers, et 39 cetera, and on one side Indians. So that 40 correspondence, which is in the government ministry, 41 and this would be correspondence while he was the 42 minister of agriculture, I have had archival searches 43 done and it is not there, so his documents in the 44 office of the ministry. Yes, my request for those 45 documents which remains, although I understand that 46 Mr. Shelford has none and there is nothing left. The 47 government doesn't have his correspondence as an 18835 Submissions by Mr. Willms Cross-exam by Mr. Rush 1 M.L.A. so I believe my friend has answered it. He 2 said they just don't exist, which I didn't know. 3 THE COURT: All right. Well, Mr. Willms, what is your position 4 on cabinet documents relating to Indian policy during 5 the period Mr. Shelford was a member of the Executive 6 Council? 7 MR. WILLMS: My lord, first of all in respect of those 8 documents, we have made inquiries about what happened 9 to the ministry files, Mr. Shelford's files. They 10 went to Mr. Stupich who was the next ministry 11 official. We are still making inquiries to see if it 12 exists, and the reason why, my lord, that we say that 13 the issue of whether or not the documents exist is 14 relevant is that -- and my friend hasn't handed up -- 15 and this is my only copy, I thought my friend might 16 hand up what he requested originally, and I will do 17 that now, my lord. 18 MR. GRANT: What's that, all the correspondence? 19 MR. WILLMS: Your Subpoena or, sorry, the purported Subpoena 20 along with the purported Notice to Produce and your 21 letter request. 22 MR. GRANT: Is that both letters of July 14 and July 11? 23 MR. WILLMS: Yes. 24 Now, my lord, before I get into the submission, 25 because my friend did not -- he just requested more 26 documents than just the cabinet documents but if you 27 look at his letter of July 14th, attached to that 28 letter at the back is a Subpoena purportedly directed 29 to Mr. Shelford, and then attached to that is the 30 letter that my friend wrote of July 11. And some of 31 these matters we have dealt with on the July 11 32 letter. We have told my friend where he can find the 33 trapline documents, they have been marked as exhibits 34 and disclosed. We have told him about the John 35 Shelford trapline. We have told him about the 36 Wistaria hearings that he is asking about and original 37 claims but, when we get into -- and this is on -- it 38 is the second to the last page of the letter request, 39 my lord, so the document that came up to your lordship 40 that I just handed up. If you turn to the second to 41 the last page of that, my lord, starting with -- I 42 think my friend is now satisfied with 1 through 4, or 43 I understood that from what he just said, but starting 44 with 5, he requested all the documents between the 45 date of the first election of Mr. Shelford and his 46 defeat which refer to the policy on land claims; 6, 47 all documents generated in his capacity as an M.L.A. 18836 Submissions by Mr. Willms Cross-exam by Mr. Rush 1 or as a minister directed to Indian leaders, Indian 2 land claim issues, traplines, guide outfitting, 3 conflicts; 7, all documents directed to Cyril Shelford 4 while an M.L.A. and while the minister of agriculture 5 for Indian people; 8, all documents directed to Cyril 6 Shelford while an M.L.A. and while the minister of 7 agriculture would deal with the subject of Indians, 8 like Indian land issues, traplines, guide outfitting; 9 9, all minutes of the Executive Council between '68 10 and '72 and '78 to '79, while Cyril Shelford was a 11 cabinet minister which refers to or discusses the 12 government's policies regarding Indians. 13 Now, along with this letter was a Notice to 14 Produce directed -- purportedly directed to this 15 defendant and also to Mr. Shelford demanding 16 production of all of these documents. And then when 17 we wrote back and advised our friends that the Notice 18 to Produce was ineffective in respect of Mr. Shelford, 19 we then received the purported subpoena faxed to us. 20 Now, the submission, my lord, which is set out in the 21 handwritten submission that I handed up, the four-page 22 submission -- 23 THE COURT: Handwritten? 24 MR. WILLMS: I am sorry, the typed submission which I handed up, 25 deals with both the legal effect, my lord, of the 26 Subpoena and the Notice to Produce, but also whether 27 or not your lordship should make an order along the 28 lines that my friends are suggesting. And the cases 29 that are cited on pages 3, page 3 is the Kiewit case 30 and that's a quote from Peter Kiewit, that's your 31 lordship's decision, in Peter Kiewit and B.C. Hydro. 32 There is no evidence whatsoever put forward by my 33 friends here at all that there are any such policy 34 documents, that there are any such minutes, that there 35 are any such letters to or from Mr. Shelford. There 36 is not a shred of evidence from my friends that any of 37 these documents that they are looking for or they 38 think are there should be produced. And in my 39 submission when you look at the request of the 40 plaintiffs in the Notice to Produce and in the 41 Subpoena and even what my friend said this morning 42 which seemed to expand after I got up and asked for 43 more information from him as to what he was still 44 seeking, it is unduly burdensome. There is no 45 evidence that it's going to lead anywhere, even if it 46 was relevant. There is no evidence that it's 47 relevant. And that, in litigation such as this, where 18837 Submissions by Mr. Willms Cross-exam by Mr. Rush 1 one party, and I will come to this later, my lord, 2 where a reasonable request for disclosure of 3 information is made, it will be given consideration 4 and we are looking now for some of these documents 5 that my friend has requested just -- not under any 6 obligation pursuant to the two documents that were 7 served as is set out in my argument, my lord, but just 8 to satisfy ourselves that in order to find these -- 9 for example, we are still looking or trying to 10 determine where the ministry files for agriculture 11 would be if they were not in the Archives. There are 12 some ministry files in the Archives, I am sure my 13 friend has looked through them, he must know where 14 they are. We have -- as far as we are aware for the 15 Ministry of Agriculture in the Archives, there appear 16 to be in excess of 20 separate files which would need 17 to be searched in order to determine whether any such 18 documents exist. And the thickness of them, which are 19 described, my lord, some of these files range between 20 two metres thick down to thin files, maybe only an 21 inch, and these are the documents that my friend wants 22 us to look through in a search for something which, 23 who knows, may or may not exist. And that's in the 24 Archives which are open to my friend. 25 With respect to the other requests that my friend 26 is making, those are not government documents. 6 27 through 9 are documents that are M.L.A. documents. 28 M.L.A. documents are not government documents. So -- 29 and my friend has it, he can explore that with Mr. 30 Shelford when Mr. Shelford takes the stand, where or 31 what happened or what recollection Mr. Shelford has as 32 to the number of letters that he got in the land 33 claims area from people in that area making claims to 34 title, and that's something, my lord, that we of 35 course during cross-examination of some of their 36 witnesses determined that there were documents, not 37 that many, but it would have been incredibly 38 burdensome to look ahead for a wide range of documents 39 that may or may not exist. 40 THE COURT: You now have a fairly narrowly focused request, 41 don't you? 42 MR. WILLMS: Well, I don't think so, my lord. I don't take it 43 my friend to have backed away from 6 through 9. It's 44 temporarily -- now he says he wants policy and 45 tomorrow he'll come in and he'll say he wants 46 something else and that he gave me a notice for. 47 THE COURT: There has been a lot of chasing around from both 33? Submissions by Mr. Willms Cross-exam by Mr. Rush 1 sides. 2 MR. WILLMS: There has been a lot of chasing around on both 3 sides and the chasing around from -- in our submission 4 anyway, from the defendant's submission, in each case 5 where chasing around was requested there were 6 documents which indicated that there had to be 7 documents there. I mean, when we asked for the band 8 council documents, there were letters that the 9 province had to the band council indicating that there 10 should be documents there. Of course I don't think we 11 got very much, but that's -- whether it's there later 12 on doesn't reflect on whether there is a sufficient 13 basis for going into that kind of search. And if we 14 are to be faced with Notices to Produce and Subpoenas 15 like this before we call any witnesses, especially a 16 witness who may have been employed by the government, 17 we are never going to get a witness into the stand and 18 finish, my lord, because we are going to spend the 19 next two months, three months, looking for all of 20 these documents to try to satisfy my friends as to the 21 fact that they don't exist. 22 THE COURT: Well, I am not impressed, Mr. Willms, with the 23 weight of the burden to look at what are being called 24 cabinet documents for a very limited period of time 25 and in relation to the land claims policy. That 26 doesn't seem to me to be a particularly burdensome 27 undertaking. And it seems to me in Mr. Goldie's 28 opening it raised the question of policy, did it not? 29 MR. WILLMS: My lord, I believe that was the policy that was 30 embedded in the terms of union. 31 THE COURT: Oh, yes. 32 MR. WILLMS: But I mean then -- that policy pre-confederation 33 was then carried on jointly but, in my submission, I 34 don't see on the pleadings where government policy 35 respecting the Nishga lawsuit or -- 36 THE COURT: All right. Leaving that out for the moment, the 37 question of what Mr. Goldie's opening raised, if 38 you're going to call Mr. Shelford, he is going to say, 39 as I gather his summary does, that there was little if 40 any notice of any land claim during the particular 41 period as witnesses have now been saying. Is it 42 unreasonable to ask that cabinet documents dealing 43 with land claim policy, if any, during his tenure as a 44 member of the Executive Council should be produced? 45 Is that so burdensome that we should be bogged down on 46 it? 47 MR. WILLMS: My lord, first of all, as to the evidence that this 18839 Submissions by Mr. Willms Cross-exam by Mr. Rush 1 witness or the present witness and Mr. Shelford will 2 cover, it is within the Lakes District. What land 3 claims policy has to do with what Indian leaders, 4 whoever the Indian leaders are that my friend is 5 referring to in his letter, letters from Indian 6 leaders or Indian people, certainly with respect to 7 letters sent to Mr. Shelford while he was an M.L.A. 8 which is the evidence that he is going to be giving 9 concerning that from the constituents in the area as 10 an M.L.A., my lord, not -- 11 THE COURT: We are not talking about letters to or from M.L.A.s 12 at the moment, we are talking about cabinet documents. 13 MR. WILLMS: But, my lord, the evidence of Mr. Shelford is going 14 to be as the M.L.A. and that is not the evidence of -- 15 it's like any M.L.A., it's like the letters -- 16 THE COURT: But what he is called, he is not immune from any 17 other -- 18 MR. WILLMS: No, no, no, and if it exists, my lord, if there is 19 some document that my friends can show exist in 20 cross-examination and is relevant that Mr. Shelford 21 recalls because as my friend said in his letter and 22 I -- I sent -- if you look, my lord, at my friend's 23 letter to me, the third page, and this is an 24 appropriate concession by my friend in my submission, 25 on the third page, item 5 which is the request for the 2 6 government policy documents, he says: 27 28 "This request related to documents of which Cyril 29 Shelford would have become aware relating to 30 government policy with land claims." 31 32 And that's the issue. What does Mr. Shelford know 33 about that and my friends can explore that and, if 34 there are documents that Mr. Shelford is aware of, we 35 will certainly, subject to any claims for privilege 36 that may exist, my lord, but we will certainly look 37 for them. But to look through five years of ministry 38 files to find out whether or not, first of all, to 39 find the files wherever they may be, wherever they 40 went after Mr. Stupich was finished with them -- 41 THE COURT: The cabinet documents wouldn't be hived off in the 42 separate ministries, would they? 43 MR. WILLMS: The cabinet documents are, as we understand it from 44 Mr. Shelford, all of his documents were given -- all 45 of his ministry documents were given to his successor, 46 Mr. Stupich, in '73 I suppose is when it was. Mr. 47 Shelford tells us he doesn't recall minutes but maybe 18840 Submissions by Mr. Willms Cross-exam by Mr. Rush 1 my friends will be able to assist Mr. Shelford in his 2 recollection but -- 3 THE COURT: I don't know if they count as minutes or not. 4 MR. GRANT: My instruction is that there is minutes of the 5 Executive Council which is the cabinet minutes and 6 they would relate to whatever topics, and I, with 7 respect to that, my friend has gone on about the 8 correspondence. I thought he had responded to me 9 about it. He's disclosed more than what he said to 10 me. He said there was no letters and there was no 11 correspondence. Now he said he doesn't know. But put 12 that aside for the moment, he's also said he's 13 continuing a search which he told me that he wasn't 14 going to continue the search in the letter but in any 15 event it's the cabinet documents and they are minutes 16 of the Executive Council. They wouldn't be hived off 17 to the ministry, my lord, that's my instruction, but 18 they are not in the Archive and we can't get access to 19 them unless my friend produces them. 20 MR. WILLMS: My information is that Mr. Shelford does not recall 21 Executive Council minutes. Now -- and that's, if my 22 friend's asked him in the stand, is what my 23 understanding is. That's the evidence that Mr. 24 Shelford would give, and that's in my submission what 25 my friends are entitled to. They are not entitled 26 half-way through a case to obtain a discovery through 27 a witness on completely separate issues which are 28 unrelated to the evidence of the witness, my lord. 29 And that, my lord, is what Mr. Justice Finch said in 30 the Phillips Barratt case which I handed up to your 31 lordship. 32 THE COURT: Are counsel aware of the fact that the Ontario Court 33 of Appeal is expressing disagreement with that 34 judgment in total? He says it is completely wrong. 35 MR. WILLMS: I thought it was just the High Court but — 36 THE COURT: I was told it was the Court of Appeal. 37 MR. WILLMS: I saw a High Court decision that expressed 38 disapproval of that. 39 THE COURT: It may have only been High Court. 40 MR. WILLMS: But maybe it's been to the Court of Appeal. 41 THE COURT: I suspect you are right. 42 MR. WILLMS: This is a different point, my lord. It is at tab 43 8, during the course of the trial, and this was the 44 initial time that the Subpoena duces tacum had been 45 served or the Subpoena had been served on the experts, 46 and in that decision Mr. Justice Finch quoting Mr. 47 Justice Toy in another case and quoting from Justice 18841 Submissions by Mr. Willms Cross-exam by Mr. Rush 1 Bouck in another case said that you can't use a 2 Subpoena under Rule 40 to obtain discovery midway 3 through a trial. That's not the purpose of it. The 4 purpose of it is to obtain documents to cross-examine 5 the witness, to effectively cross-examine the witness. 6 Now, to get minutes that Mr. Shelford has no 7 recollection of and as far as he knows don't exist, is 8 an unduly burdensome request. As your lordship said 9 in the Kiewit case -- 10 THE COURT: That was quite different. They didn't have any 11 target in mind at all. 12 MR. WILLMS: With all due respect to my friends, I understand 13 that they are attempting to narrow that request but 14 their initial request is very -- is as broad as you 15 can paint it. And here to request documents which may 16 or may not exist in Ministry files which we haven't 17 been able to locate yet will only serve if we are 18 still going to -- 19 THE COURT: I am sorry, Mr. Willms, I don't think that that's 2 0 what we are even talking about at the moment. We may 21 get to that but we are talking about cabinet 22 documents. 23 MR. WILLMS: Yes, my lord. What I am — 24 THE COURT: Not Ministry documents. 25 MR. WILLMS: What I am trying to suggest, my lord, is that to 26 look for documents for which, on our understanding Mr. 27 Shelford does not recall -- 28 THE COURT: No, but surely the question is, should counsel have 29 them for the purpose of cross-examination. The fact 30 that he doesn't recall should hardly be a ground for 31 production of documents that should otherwise be 32 produced here. 33 MR. WILLMS: But, my lord, it gets -- it goes directly to the 34 written argument that I have handed up. In 35 circumstances like this, if every time my friends make 36 a broad ranging response for government documents, we 37 need to stand a witness down while we spend two months 38 looking for something which may not exist when one 39 question on cross-examination of Mr. Shelford, "To 4 0 your knowledge were minutes kept of the Executive 41 Committee meetings that you attended?" Answer: "No." 42 Then there is no purpose served in searching -- 43 THE COURT: Not at all. It comes out of the documents. Now,, 44 "Here is one. Do you remember it?" He might say, 45 "Yes, I do remember it." 46 MR. WILLMS: But -- well, perhaps, you know, I don't know where 47 my friend is getting his instructions, I am trying to 342 Submissions by Mr. Willms Cross-exam by Mr. Rush 1 get mine from the person who was the minister at the 2 time. 3 THE COURT: Well, I don't have any problem if you, on making 4 proper inquiries, come back and say there are no 5 minutes kept of the minutes of the Executive Council. 6 That's the end of the matter. But your friend says -- 7 I would be a little surprised if they don't keep some 8 record. 9 MR. WILLMS: Well, I don't know whether — 10 THE COURT: I have seen large organizations that very wisely 11 kept no records at all. 12 MR. WILLMS: My lord, with all due respect to my friends, 13 whether cabinet minutes are kept today in my 14 submission, and I don't know whether they are or not, 15 maybe they are today, maybe with this government -- 16 THE COURT: We are not concerned about today. 17 MR. WILLMS: Exactly, and it is Mr. Shelford who was the 18 minister at the time. 19 THE COURT: I don't think we should be limited just by Mr. 20 Shelford's recollection. 21 MR. WILLMS: But it goes to the root of my submission, my lord, 22 that if every time my friends have -- if every time an 23 idea comes about we think there should be documents 24 during the period of time, then we're looking for a 25 witness, we'll never finish the witnesses because we 26 have more government witnesses coming up in the fall 27 and the witnesses are going to get in the stand, I 28 suppose, or maybe we'll get another Notice to Produce 2 9 and maybe we'll get another Subpoena faxed to us, and 30 the witnesses will -- 31 THE COURT: Isn't it a question of what documents should have 32 been produced in the first instance? 33 MR. WILLMS: Well, certainly, my lord, in terms of that, the 34 demand for discovery of documents was canvassed with 35 the Ministry. The issues that were identified by the 36 parties were canvassed. At the time the relevance of 37 the government's policy in the 1970s with respect to 38 issues which turn on pre-confederation, confederation, 39 and the turn of the century, at least by my friend's 40 evidence, I think they stopped after Dr. Galois at 41 1925, or '27, I don't know when Dr. Galois' evidence 42 of the history in economy stopped. But certainly up 43 to 1927 and past, a thorough search has been done to 44 the best of our knowledge and documents produced. 45 Now, when we get into our case, all of a sudden my 46 friends suggest that government policy -- 47 THE COURT: Your friends are making a much narrower approach. 18843 Submissions by Mr. Willms Ruling by the Court 1 Mr. Shelford is going to say I have never heard of 2 this sort of thing. 3 MR. WILLMS: He is not going to say that, my lord. He is not 4 going to say I never heard of this. He is going to 5 say he didn't receive notice until -- and he will 6 explain when, from the Lakes District, that he was the 7 constituent. Now, that's why I talked about the 8 Nishga, my lord, and Calder. Everybody could read 9 about that in the paper, what the relevance of the 10 fact that the Nishga commenced a lawsuit 15 years or 11 more before these plaintiffs did, I don't know. 12 But -- and what government policy was in respect of a 13 lawsuit commenced by Mr. Calder on behalf of the 14 Nishga is, I don't know. I don't know what my friends 15 say is relevant arising out of that, and that's not 16 what Mr. Shelford — that's not where Mr. Shelford's 17 evidence is going, my lord. And with all due respect 18 to my friends, I don't know why anything to do with 19 the Calder case or the Nishga is relevant in terms of 20 government policy here and especially not to the 21 evidence of Mr. -- the next witness. 22 Now, without the relevance, my lord, without some 23 indication by my friends that there are policy minutes 24 that relate somehow to the plaintiffs in this case, 25 policy decisions or minutes of that, in my submission 26 your lordship's decision in the Kiewit case, and I 27 have cited some American jurisprudence on complex 28 litigation, that it is unduly burdensome, it is 29 expensive, and we'll never get our witnesses finished 30 if we are faced with this every time we call a witness 31 who is or was an employee of the government. 32 THE COURT: Well, one never knows what might be the fall-out 33 from any one of these things, but I do not presently 34 have the view that checking minutes of meetings of the 35 Executive Council during the time of Mr. Shelford's 36 incumbency as a minister with particular relation to 37 land claims in the claim area is overly burdensome, 38 and I go no further than that. I am not dealing with 39 anything beyond that. And I think if we are going to 40 have a problem in this area, we will have to face it 41 in a more direct way than that we are discussing in 42 this narrow compass, but I think that there should be 43 a search made to see if there are such documents and I 44 think that the defence should -- I am sorry, the 45 plaintiffs now should have the opportunity to 46 cross-examine on such documents if they exist. And I 47 go no further than that. I hope that I am not being 18844 Ruling by the Court J.P. Tourond (for Province) Cross-exam by Mr. Rush 1 unfeeling about the burdens that are placed upon 2 people who have other things to do, but we have a 3 problem on our hands, we have to deal with it the best 4 we can, and the plaintiffs have been put to some 5 difficulty in digging up documents the defence wanted 6 and I think it has to -- it has to be dealt with on an 7 individual basis and this particular demand, the 8 narrow one I just described, seems to be one to which 9 I should accede. 10 MR. WILLMS: So those are minutes of the Executive Council while 11 Mr. Shelford -- related to the land claims 12 territory -- 13 THE COURT: And policy. 14 MR. WILLMS: And policy — 15 THE COURT: During that time. 16 MR. WILLMS: That's policy related to the lands — 17 MR. GRANT: That would be land claims policy generally, policy 18 of the Provincial defendant. 19 THE COURT: Yes, I think so. I don't think you can divide the 20 province up -- 21 MR. WILLMS: Well, my lord — 22 THE COURT: — for this purpose. 23 MR. WILLMS: In that -- certainly we'll make the searches and if 24 we can't find anything, we will advise our friends. 25 If we can find something, I would like to reserve, my 26 lord, the opportunity to cover privilege or relevance 27 with your lordship before disclosing the documents to 2 8 my friends. 29 THE COURT: Yes. I will be very glad to hear you, as always, 30 Mr. Willms. 31 MR. WILLMS: Thank you, my lord. 32 THE REGISTRAR: Mr. Tourond. 33 34 JAMES PETER TOUROND, Resumed: 35 36 CROSS-EXAMINATION BY MR. RUSH: (Continued) 37 Q Mr. Tourond, if I can direct your attention back to 38 the question of the periods of time that you were 39 personally guiding on your mother's guiding area and I 40 had reviewed with you prior to the break certain 41 periods as indicated in the guide reports and 42 declarations. Now, I just want to go back over these 43 with you and ask you if you can agree or disagree with 44 me in respect of the total number of days you were in 45 fact personally guiding, and you have had an 46 opportunity I think of reviewing the numbers of days 47 that you were guiding as it appears from those 18845 J.P. Tourond (for Province) Cross-exam by Mr. Rush 1 reports. Is that so? 2 A Yes. 3 MR. MACKENZIE: My lord, I can assist my friend by, since we did 4 the count, by saying that we agree with my friend 5 except for 1985 and 1987. In 1985, we have 16 days, 6 and in 1987, we have 24 days. 7 THE COURT: What did the plaintiffs say? 8 MR. RUSH: I said 17 and 25. 9 THE COURT: All right. 10 MR. RUSH: We'll go along with this arithmetic adjustment. 11 THE COURT: The years were 1984. 12 MR. RUSH: Yes, my lord. I was going to review these with the 13 witness. 14 Mr. Tourond, in 1984, you personally guided for 11 15 days? 16 MR. MACKENZIE: My lord, I am just, as my friend indicated, just 17 putting the numbers that we came up with before Mr. 18 Tourond. 19 MR. RUSH: 20 Q Yes. This is satisfactory to me. Do you agree with 21 that, Mr. Tourond, please? 22 A Eleven days? 23 Q Yes. 24 A Yes. 25 Q In 1985, you guided from September 2 to October 5, 26 over that period, for a total number of days of 16? 27 A Yes. 28 Q And in 1986, you guided from September 8 to October 4, 29 for a total number of 24 days? 30 A Yes. 31 Q And 1987, you personally guided from September 7 32 through to October 3, for a total number of 24 days? 33 A Yes. 34 Q And in 1988, you guided in the period from September 35 19 to October 23, for a total period of 13 days? 36 A Yes. 37 Q All right. Now, I think we have already discussed, 38 Mr. Tourond, where it was that you guided in '84 and 39 85, and I'd like to direct your attention now to 1986. 40 And if you can agree with me that the places that you 41 guided were at Atna Lake and Kidprice Lake -- excuse 42 me, in 1986, you guided at Atna Lake and Kidprice 43 Lake? 44 A Yes. I guided at Atna Lake and Kidprice Lake but I 45 also must have guided somewhere else. 46 Q Yes, you did, and I am going to come to that if you 47 will agree with those? 18846 J.P. Tourond (for Province) Cross-exam by Mr. Rush 1 A 2 Q 3 A 4 MR. RUSH 5 6 MR. mack: 7 8 : MR. RUSH 9 Q 10 11 A 12 Q 13 A 14 15 16 17 18 Q 19 A 20 Q 21 22 A 23 Q 24 A 25 Q 26 27 28 A 29 Q 30 A 31 Q 32 33 34 A 35 Q 36 A 37 Q 38 A 39 Q 40 41 A 42 Q 43 44 A 45 Q 46 47 Yes. And you also guided at Nadina River and Duck Lake? Yes. In 1987, the place where you personally guided, Mr. Tourond, was -- \FZIE: Excuse me, Mr. Rush, Mr. Tourond was answering your question with clarification. Was there something more you wanted to add about 1986, sir? Yes. What is that, sir? I would like to add that one of these documents does not name the place that I guided in. It is missing from the file. But I recall looking at the names of the hunters who signed at the bottom of the document that this was also in the Nadina Valley area. Is that Nadina? Yes. All right. And those areas are identified with the MU number, are they? Yes. Or not shown at all? No, they are identified with an MU number. Can you turn now please to 1987. Will you agree with me that where you personally guided in 1987 was at Nanika River -- excuse me, Nanika Lake? Yes. McBride Lake and Jones Lake? Yes, that's correct. And those areas, McBride Lake, Nanika Lake, and Jones Lake, they are all relatively within a close proximity one to the other? No, they are not. And where is -- which one isn't or aren't? Jones Lake is not in the same area. Where is Jones area? It is in the Nadina River area. I see. Nadina -- McBride and Nanika are relatively close together? Yes. And that would be on the western side of the guiding area of your mother? Yes. And as I think we know, the Nanika or, excuse me, Nadina River is on the eastern side or closer to Nadina River, the west end of Francois Lake? 18847 J.P. Tourond (for Province) Cross-exam by Mr. Rush 1 A Yes. 2 Q In 1988, Mr. Tourond, my reading of the reports 3 indicates that you personally guided at Nadina River, 4 Duck Lake, Poplar Lake, and Blue Lake, and there was 5 one trip that you had at -- two at Atna Lake? 6 A That's right. 7 Q All right. And you haven't guided in 1989; is that 8 right? 9 A Not yet. 10 Q All right. I am through with those. Now, you told us 11 that you knew Simon Brown? 12 A Yes. 13 Q And he was a friend of yours when you were in high 14 school in Burns Lake? 15 A Yes. 16 Q And you told us he was a native person? 17 A Yes. 18 Q And do you know what kind of native person he is, what 19 his family was, or his clan or house? 20 A No, I do not. 21 Q Do you understand him to have belonged to a house by 22 the name of Woos, W-o-o-s? 23 A No, I do not. 24 Q And do you know what relationship he has with Mr. 25 George Brown? 26 A He was a brother. 2 7 Q And Mr. Jim Brown? 28 A A brother. 2 9 Q And did you ever meet Mr. Jim Brown? 30 A Yes. 31 Q And I take it that you went to the Brown household for 32 suppers or for lunches? 33 A No, I did not. 34 Q You simply went there what, to meet Simon and then off 35 you went to chum around somewhere? 36 A That's correct. 37 Q And how often would you have chummed around with Simon 38 back in your high school days, what frequency? 39 A Well, we usually walked to school and from school 40 together and then after supper we usually went out and 41 chummed around together, so it was many times. 42 Q You told us you learned some words, some native words, 43 did you? 44 A I think I did but I couldn't recall them today. 45 Q You can't. Did you understand -- did you know what 46 the language was that you were learning at that time? 47 A I wasn't told directly what the language was. 18848 J.P. Tourond (for Province) Cross-exam by Mr. Rush 1 Q Did you seek to find out what the words were that you 2 were using? 3 A Well, I just -- yes, the translation between English 4 and native words, what they meant. 5 Q Right. You knew a native word and you knew what they 6 meant? 7 A In English. 8 Q In English, but you didn't know what language they 9 represented? 10 A No. I wasn't told directly this is such and such a 11 language. 12 Q Well, you were using a native word. Did you think to 13 ask about what language it was? 14 A No. 15 Q Why not? 16 A Why should I? 17 Q Yes. Did you inquire of Mr. Simon Brown what his 18 relationship was to the people in Moricetown? 19 A No. 20 Q Did you ever ask Mr. Simon Brown what his house or 21 clan was? 22 A No, I did not. 23 Q That wasn't of any interest of yours? 24 A No, because I had never heard of any such, so I wasn't 25 interested. As far as I knew there wasn't any. 26 Q Well, you knew he was a native person, didn't you? 27 A Yes. 28 Q And you were interested in that fact? 29 A Not really. I was interested -- him and I were 30 friends. It didn't matter if he was native or 31 non-native. Him and I were friends. 32 Q Yes, I understand that. But didn't you want to know 33 anything more about him as a native person? 34 A Nothing any more than I would any other friend. 35 Q I see. And you wouldn't ask another friend what 36 language they happen to speak if you knew that they 37 were -- that one of the words that you knew was a 38 German word or a French word or -- that would be of no 39 interest of yours? 4 0 A Well, I might know it was a German word or a French 41 word but I wouldn't know what dialect or whatever it 42 was. 43 Q No. But in any event, you didn't think to ask Mr. 44 Simon Brown about his family connections or his family 45 relationships? 46 A No, I did not. 47 Q You told us in your direct examination that you 18849 J.P. Tourond (for Province) Cross-exam by Mr. Rush 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 visited several mining sites. Do you remember that? A Yes. Q And you said that one of those was one at Sweeney Mountain? A Yes. Q And you said you couldn't remember when you were there? A That's correct. Q And you told us that you were at Troitsa Lake? A Yes. Q And you said that you couldn't remember but you thought it was about eight to nine years ago? A Yes. I would like to just make a correction to Troitsa Lake. It was the Troitsa Lake area, not Troitsa Lake on the lake itself. Q Right, all right. You also said you were at Sibola? A Yes. Q When was that? A It was about the same period of time. Q And Tableland? When were you there, Tableland Mountain? A I have been there a couple of times. Once just last year. Q When were you there when you were doing these mining site visits? A Well, once last year and, I can't remember, it was eight, nine years ago. Q And what about Atna Lake? You said you were there at a mining site visit? A Close to Atna Lake on the mountain. Q When was that? A I'd say it was around five years ago. Q You are not sure about that? A I am not sure of the exact year, no. Q And you say along Morice Lake, you were also there inspecting a mining site? A In the Morice Lake area, yes. Q Yes. When was that? A It was about the same time as the site at Atna. Q So you think that's about five years ago, you think? A Somewhere around there. Q All right. And do I understand correctly, Mr. Tourond, that you went to those places in order to assess the timber removal that was being done, if any, by those mining operations? A In some of the locations. The other ones, I was there to request closure of the operation due to the high 18850 J.P. Tourond (for Province) Cross-exam by Mr. Rush 1 fire hazard. 2 Q I see. And I take it that you weren't there to check 3 on the racial origins of the people on those sites, 4 were you? 5 A No, I was not. 6 Q That was of no concern of yours? 7 A No. 8 Q Now, you also indicated throughout your testimony that 9 when you travelled on the roads in the forest district 10 south and west of Francois Lake you did so as in the 11 course of your job as a forest technician; is that 12 right? 13 A Yes. 14 Q I am not saying that's the only time but I am saying 15 that certainly during the work week I understand 16 that's when you were supposed to have done this; is 17 that so? 18 A Yes. 19 Q And my understanding of your job and your evidence is 20 that mainly what you were doing was going to and from 21 logging shows? 22 A As I said before, that was about 50 percent of my 23 activities, yes. 24 Q Well, is it more than 50 percent of your activities 25 out driving around? 26 A Yes. I am doing other administrative work. 27 Q Well, what I am trying to understand is I think you 28 told us that you spent two days in the office doing 29 administrative work? 30 A On the average. 31 Q On the average. Sometimes more, sometimes less? 32 A Right. 33 Q But that's what you did in Houston? 34 A Yes. 35 Q So I take it that you've got -- from that, that you 36 are on an average three days out on the road? 37 A Sometimes more, sometimes less. 38 Q Sometimes less. Now, of the three days out on the 39 road, Mr. Tourond, are you not going to and from 40 logging shows for most of the time? 41 A No. I would say 50 percent of my field work was going 42 to and from logging shows and the other would be the 43 other tenures that I was responsible for and other 44 things related to the public. 45 Q Now, what other tenures are you talking about? 46 A I am talking about special use permits, free use 47 permits, tree planting projects, bug infestation 18851 J.P. Tourond (for Province) Cross-exam by Mr. Rush 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 areas, laying out and cruising timber that obviously had not been logged yet, involved with grazing permits between the forest service and the rancher, servicing forest service look-outs, doing some liaison field work with the Ministry of Environment. THE COURT: Is it convenient to adjourn, Mr. Rush? MR. RUSH: Certainly. THE COURT: All right, thank you. THE REGISTRAR: Order in court. Court stands adjourned until 2:00 p.m. (PROCEEDINGS ADJOURNED AT 12:30 p.m.) I hereby certify the foregoing to be a true and accurate transcript of the proceedings herein, transcribed to the best of my skill and ability. TANNIS DEFOE, Official Reporter United Reporting Service Ltd. 352 J. P. Tourond (For Province) Cross-exam by Mr. Rush 1 2 3 THE COURT 4 MR. RUSH: 5 Q 6 7 8 A 9 Q 10 11 A 12 13 Q 14 15 A 16 17 Q 18 A 19 20 21 Q 22 23 A 24 Q 25 26 27 A 28 Q 29 30 A 31 Q 32 A 33 Q 34 35 A 36 Q 37 38 A 39 40 Q 41 42 A 43 Q 44 45 46 A 47 (PROCEEDINGS RESUMED AT 2:00 O'CLOCK P.M.) : Mr. Rush? Mr. Tourond, when you travelled from Houston to areas southwest of Francois Lake, I understand you travelled by public road? Public road and logging roads, yes. And the type of road that you travel on, would it look something like this photo in Exhibit 77-6? This was a branch road off of the main road which I travelled on. The question I have to ask you, are the roads you travelled on in the area, were they like that? Some of them are, some of them are worse, some are better. By worse you mean the logging is more severe? No, some of the roads are not as -- that is more or less a main artery road. Some of the other roads are not to the standard that that one is. I see. So you're talking about the condition of the road? Right. In terms of the condition of the landscape, beside the road, is that typical of the kind of landscape that you travelled through? Some of it is, yes. And was the travel that you did mainly from the period of May to September? No, it was year around. Sorry? It was year round. I had the impression from you that some of the roads you didn't travel on because they weren't passable? Yes, some of them but other ones were passable. The main roads are the ones that were passable; is that right? Main roads and some of the branch roads leading to the logging. Am I right to say that your travel was considerably more restricted in the wintertime? Yes, by vehicle it was, but -- Well, at this point I am only discussing the question of your travel by vehicle, you understood that, didn't you? Yes, but I just made it clear that by vehicle it was -- 18853 J. P. Tourond (For Province) Cross-exam by Mr. Rush 1 Q I am right, though, am I not, Mr. Tourond, that in 2 terms of your travel in the non-summer months, that 3 for a considerable period of time in the year your 4 travel was considerably restricted? 5 A I would say from the period the end of November to the 6 end of March it was restricted. 7 Q And the places that you travelled to were places where 8 there was activity of some kind or another, a logging 9 cut or a tree planting area or forestry campsite? 10 A No, I also travelled to areas where we did either 11 check cruising or cruising or investigating timber, 12 beetle infestations. 13 Q And those were -- you got to those by the roads that 14 you described? 15 A Sometimes, other times we flew to those areas 16 depending on the remoteness and availability to access 17 them. 18 Q How many times would you fly in a particular year, Mr. 19 Tourond? 20 A Oh, quite a few times. 21 Q Five or six? 22 A No, I would say it was more like 20 times. 23 Q Now, I want to ask you about the road travel that you 24 made. When you were travelling on the main roads and 25 the logging roads or the side roads, I take it that 26 you -- your purpose there was to get to a place where 27 you had some job to do, your job as a forest 28 technician? 29 A Either to get to or get close to the area that I had 30 to carry on my job. 31 Q And the point of the travel wasn't to keep track of 32 other people on the road? 33 A Not -- well, the Ministry of Forests isn't involved 34 with counting people on the roads, but you do know 35 people when you pass them or are camping or carrying 36 on activities that you can see. 37 Q But my only point, Mr. Tourond, is that you weren't, 38 in the period of time you have been employed with the 39 Ministry of Forests, in doing the travel that you said 40 you have done, your main concern wasn't who was on the 41 road or when they were travelling or where they were 42 going or what they were doing? 43 A Well, we usually observe other people, yes, especially 44 in the summertime, you know, how they are camping, if 45 they have got a campfire, if the campfire is in an 46 area that is safe, that -- because we are concerned 47 with escaped camp fires or abandoned campfires or 18854 J. P. Tourond (For Province) Cross-exam by Mr. Rush 1 such. 2 Q These are at campsites, aren't they? 3 A They are at sites that people camp, people don't 4 always camp in a designated forest service campsite, 5 they camp in other areas that are not designated. 6 Q Isn't it the case that the people on the road that you 7 say you pass by on the road, you are not keeping track 8 of those people, are you? 9 A Well, I don't count the heads in the vehicle. I look 10 to see if I recognize them or not. 11 Q You don't — 12 A But I don't keep a record of it, no. 13 Q You don't count heads and check to see who they are, 14 do you? 15 A I usually look to see who the driver is. 16 Q Right. But you don't, if a vehicle has two or three 17 passengers in it you are not checking to see who the 18 people are in the vehicle, are you? 19 A No, not really, just who the driver may be, if I know 20 him. 21 Q So you can never say if some vehicle is passing you 22 whether there are native or non-native people in it? 23 A Not unless I notice if they are or they are not. 24 Q You told us that you saw native fellow trapping at 25 Poplar Lake, do you remember that? 26 A Yes. 27 Q Who was it? 28 A He was a native fellow at Poplar Lake. 2 9 Q Yes, I understand that. But do you know who he was? 30 A I understand from asking questions that he was 31 Sylvester Williams. 32 Q And where did you see Sylvester Williams? 33 A At Poplar Lake. 34 Q Well, that's helpful. You know that Poplar Lake is a 35 big lake, don't you, Mr. Tourond? 36 A Yes. 37 Q So tell us where he was. 38 A Well, I saw him on the road to Poplar Lake. I can't 39 remember the exact spot. I saw him at the Forest 40 Service campsite on Poplar Lake quite a few times, and 41 I saw him by his cabin or the cabin that he was 42 staying in at Poplar Lake. 43 Q How many times did you see him there? 44 A Well, on the road I saw him probably more than I saw 45 him at Poplar Lake, because I did observe who was 46 driving the vehicle when I would pass by it. 47 Q So this is an occasion in which you did see a native 18855 J. P. Tourond (For Province) Cross-exam by Mr. Rush 1 person driving a vehicle and you now know that person 2 to be Sylvester Williams? 3 A Yes, I recognize the vehicle that he was driving. 4 Q How many times did you see him driving the vehicle? 5 A Well, several times. I can't give you the exact 6 number. 7 Q Is it five, six, 20, how many? 8 A Probably between five and 20 times. I don't know. 9 Q Over what period of time? 10 A Usually in the spring, on springtime every year for 11 four, five years at least. 12 Q For four or five years. Can you remember is that four 13 or five years from present? 14 A No, it isn't. I haven't seen him there for several 15 years now. I understand he is deceased. 16 Q So what four or five years would that be? 17 A Well, previous to the last five years. 18 Q And what part of Poplar Lake was he at when you saw 19 him at Poplar Lake? 20 A He was at the campsite, the Forest Service designated 21 campsite at Poplar Lake. 22 Q Is that the only place that you saw him there? 23 A That I can recall, yes. 24 Q Was he with anyone? 25 A He was with his wife or who I understand was his wife. 26 Q Was he with anyone else? 27 A Not that I ever seen. 28 Q I am going to show you what is marked as Exhibit 218, 29 Mr. Tourond, can you recognize the male person holding 30 the skins in this photograph, Exhibit 218, as 31 Sylvester Williams? 32 A I think it is. 33 Q Is that the person beside him who you think to be his 34 wife? 35 A I couldn't be 100 percent sure. 36 Q And I want to show you a photograph which has been 37 marked as Exhibit 221, and I wonder if you can 38 identify the cabin that's shown in this photograph? 39 A Yes, that looks like the cabin that was on the float 40 at Poplar Lake. 41 Q And that's the cabin that burned down? 42 A It looks like it. 43 Q And are you able to determine if the people in the 44 photograph, if the male shown in the photograph is 45 Sylvester Williams, the person you identified in 46 Exhibit 218? 47 A Well, it's such a poor picture I couldn't say 100 356 J. P. Tourond (For Province) Cross-exam by Mr. Rush 1 2 Q 3 A 4 Q 5 6 A 7 Q 8 A 9 Q 10 A 11 Q 12 A 13 Q 14 A 15 Q 16 A 17 Q 18 A 19 Q 20 21 22 A 23 Q 24 25 A 26 Q 27 A 28 Q 29 30 A 31 Q 32 A 33 Q 34 35 36 A 37 Q 38 A 39 40 Q 41 A 42 Q 43 44 45 A 46 Q 47 THE COURT percent sure. Did you ever see Mr. Williams at this cabin? Yes, I have. And do I understand from your testimony that you never actually saw Mr. Williams out on a trapline? You mean out actually setting a trap? Setting a trap or at a place where a trap was located? No, I don't recall seeing him. You know Park Lake? Park Lake? Yes. Yes. Park Lake? Hm-hmm. And you have been to Park Lake? Yes. Did you ever see Mr. Sylvester Williams at Park Lake? No, I did not. I want to show you Exhibit 215, which is a photograph, can you confirm for me that the person in the green and black checkered jacket is Mr. Sylvester Williams? It's a side view of this person. It's hard to tell. All right. There is another person standing up behind in the background, do you recognize that person? No, I don't really recall it, no. Do you recognize him to be a native person? He could be. And do you recognize the area that is shown by this photograph? No, it could be taken anywhere. Are there poplars like this at Park Lake? In various places nearby, yes. Did you ever see a campsite at Park Lake that resembles what the scene that's depicted in this photograph shows? No, I have not. Do you recall being at Park Lake in 1984 or 1985? Yes, I passed through there probably two or three, four times. In the years, in each of those years? Yes, it could be more or less, mind you. If I told you that the photograph was taken in 1984 and 1985, does that help you recollect whether or not you saw the scene which is shown in the photograph? No, it does not. All right. : Is Park Lake big enough to be on any of these maps? 18857 J. P. Tourond (For Province) Cross-exam by Mr. Rush 1 MR. RUSH: 2 A 3 THE COURT 4 5 A 6 MR. RUSH: 7 Q 8 9 A 10 Q 11 12 13 14 15 16 A 17 18 19 Q 20 21 22 A 23 Q 24 A 25 Q 26 27 A 28 THE COURT 29 30 A 31 THE COURT 32 MR. RUSH: 33 Q 34 35 36 A 37 Q 38 A 39 Q 40 A 41 Q 42 43 44 A 45 46 Q 47 A Yes, I think so. I think so. I can look for it in due course, smaller lakes though, isn't it? Yes, it is. It's one of the What's the distance west from Nadina River that Park Lake is? What are you referring to as Nadina River? Well, I understand there has been what has been called a point of -- a community of -- a collection of habitations where the outflow of Francois Lake is where Nadina River is located and it's sometimes referred to as Nadina River and Nadina River Crossing; is that right? I am aware of the old settlement of Nadina and my mother called her place that she grew up on as Nadina River. All right. Well, maybe we could take that as a point of reference. From that point to Park Lake along the road, what's the distance? Road distance? Yes. Seven, eight miles, something like that. And from where you live what would be the distance by road? Seven and a half or eight and a half miles. : What would you say the elevation of Francois Lake is? It's 2400 feet. : Thank you. I want to show you a photograph, Mr. Tourond, and ask you if you can identify the scene that's shown in the photograph which is shown as Exhibit 214. Well, I have never seen this scene, no. It's a camp of some sort, is it? It looks like it, yes. This is not at any one of the forestry campsites? Not that I can identify. If you look in the background, does it assist you by reference to the type of trees or the height of trees that you see in the background? Well, I see a small spruce. They look like possibly immature pine. Does that help you determine where it is? There is hundreds of acres of immature pine. I J. P. Tourond (For Province) Cross-exam by Mr. Rush 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 A Q A A Q A Q A Q A Q A Q A Q A Q A Q A Q A Q A Q cannot -- Do any of these people -- do you know any of those people, any of the three people shown in Exhibit 214? No, I don't. Do you recognize that as an area that was around Park Lake? It could be, because there is immature pine around Park Lake. And whenever you were out on Park Lake you have never seen anything that resembles this campsite or those people? No, I have not. Now, you told us, Mr. Tourond, that you saw John Mould trapping? Yes. Where did you see him trapping? I have seen him trapping north of our place, towards Tsichgass Lake, I have seen him trapping in the area of Blue Lake -- Jones Lake -- I am sorry, not Blue Lake, Jones Lake. Does that mean -- I am sorry, anything more? And various other places around there. Close to where you live? Yes, it's relatively close. And are these occasions when you went out to talk with him or to find him, where was he trapping when you saw him? Well, he was trapping in the areas I just described to you. Are those close to roads? They are road-accessible, yes. You saw him from the road, did you? A couple of occasions or I see his vehicle parked beside the road and his snowmobile trails that he takes to inspect his traps. take it, on some occasions occasions that I didn't see you said you saw him trap So, you saw his vehicle, I but didn't see him? I saw his vehicle numerous him. And what about Gary Lloyd, too? Yes, I have seen Gary Lloyd trap, I have been with Gary Lloyd when he has been trapping a couple of occasions. And that's on your late uncle's trapline? That's correct. And what about James Macallian, you said you saw him 18859 J. P. Tourond (For Province) Cross-exam by Mr. Rush 1 trapping? 2 A I saw him trapping on the trapline that he was renting 3 near Nadina Lake. 4 Q Did you see him from the road? 5 A Yes, I saw him from the road. And I also saw his 6 vehicle parked beside the road. 7 Q That is how you know it was him, because it was his 8 vehicle? 9 A Well, I seen him personally trap or trapping and then 10 I seen him driving that vehicle on a regular basis so 11 I assumed it was his vehicle that I saw again. 12 Q And did you also assume that he was trapping, sir? 13 A Well, I am sure he was trapping. He had traps in the 14 back of his vehicle and traps and such and those times 15 that's what he would be doing. 16 Q Well then, you must have seen the people that were 17 trapping along Owen Lake Road too, did you? 18 A I saw people trapping along Owen Creek, yes. 19 Q How many times would you have seen those people? 20 A Various times in the spring season. 21 Q How many times? 22 A Maybe ten, ten times. 23 Q Over what period of time? 24 A Well, I didn't see him this spring so over the last 25 six years or so. 26 Q And how close were they to the road? You saw them 27 from the road, didn't you? 28 A Yes, well, Owen Creek passes close to the road in 29 various locations. And I also walked into one of 30 their camps once, where they had beaver hung up and 31 they were camping there which was not in sight of the 32 road but it was close. 33 Q When you did that, you must have got close enough to 34 see who the people were? 35 A Yes, they were young native fellows. 36 Q And apart from the young native people there, did you 37 see any older native people when you -- 38 A No, I did not there, at that campsite. 39 Q Did you see older native people while with your 40 travelling around the road at any time? 41 A Yes, I did. 42 Q Who were those people? 43 A Native people. I do not know their names. 44 Q How many of these native people did you see then? 45 A On occasion, two people, one person. 46 Q I want to show you a photocopy of a photograph and ask 47 you if you can identify the person in the photograph 18860 J. P. Tourond (For Province) Cross-exam by Mr. Rush 1 2 3 A 4 5 Q 6 A 7 MR. RUSH: 8 9 THE COURT 10 11 12 13 14 MR. RUSH: 15 Q 16 17 A 18 Q 19 20 A 21 Q 22 23 A 24 Q 25 A 26 Q 27 A 28 Q 29 A 30 Q 31 32 A 33 Q 34 35 A 36 Q 37 A 38 39 40 41 42 Q 43 A 44 Q 45 46 47 A as being one of those people that you might have seen trapping along Owen Lake Creek. Well, I am sorry, but this photocopy of a photograph is so poor that I would not say I saw him at all. You can't identify any -- Oh, no, I cannot. I would like this marked as an exhibit for identification, please. : All right. (EXHIBIT 1102 FOR IDENTIFICATION: PHOTOGRAPH) PHOTOCOPY OF And do you know a native person by the name of Leonard George? I have only heard of the name. I do not know him. Now, you told us that you have been out to Morice Lake? Yes. And I take it that you went out to Morice Lake by the Morice River road? Yes. In some occasions, yes. Well, that's the main way you got out there, isn't it? I flew out on numerous times too. Would you have been out in that area in 1980? It's possible, yes. Is it possible you were out in 1980 in the spring? Yes, it's possible. And do you know the place where the confluence of Gosnell Creek and Morice River is located? Yes, I do. And did you ever see any trapping in there being done by anybody? During the period of time of 1980, did you say? Yes. I may be incorrect in saying but I don't think there was a road to -- well, there still is not a road to the confluence of Gosnell Creek and Morice River. So the only way to get there would be either by river boat or by flying to. Well, did you go in? And I did not go by river boat or fly in. Let me ask you if -- this is a photograph, Exhibit 183, there is a date on it of May, 1980. Do you recognize the scene? No, I do not. That could be taken anywhere up there. 18861 J. P. Tourond (For Province) Cross-exam by Mr. Rush 1 Q Do you recognize the people? 2 A No, I don't. 3 Q If I told you that was taking taken along the Morice 4 River, would that assist you at all, in May of 1980? 5 A No, it wouldn't, because I don't -- other than you 6 telling me that it was taken along the river, I 7 couldn't tell you it was. It doesn't look -- it could 8 look like that anywhere out there. 9 Q And I want to show you two cabins depicted in a 10 photograph, Exhibit 213. Have you ever seen a scene 11 that is indicated like this? 12 A I couldn't be 100 percent sure but it does look 13 familiar to the site where the Forest Service road 14 crosses the Morice River. 15 Q And is it because of the two cabins that you have -- 16 you can identify the place? 17 A Yes, the cabins look something like what I saw there. 18 Q And — 19 A Especially the old one here. 20 Q And did you see, in any time, at any time in the 21 1980s, any trapping in and around those cabins? 22 A No, I did not. 23 Q Do you know Warner Williams? 24 A I do not. 25 Q Sarah Layton? 2 6 A No. 27 Q Would you have been in the area of Morice Lake in 28 1981? 29 A Possibly. 30 Q I want to show you another poor photocopy of a 31 photograph, Mr. Tourond. Just ask you to look at the 32 photocopy of the photograph that's shown in the bottom 33 right hand corner and I would ask you if you can 34 identify the lake that is shown in the background. 35 A It could be Morice Lake but I wouldn't be 100 percent 36 sure but it does look like it could be. 37 Q All right. Do you recognize any of the people that 38 are shown in the photograph, particularly the one in 39 the foreground? 40 A The faces are so distorted with the photocopying I 41 couldn't identify it. 42 Q All right. And this photograph was taken on October 43 5th, or it's said that it's taken on October 5th, 44 1981. Do you have a recollection of seeing any native 45 people at Morice Lake in and around that period? 46 A No, I do not. 47 MR. RUSH: May that be an exhibit, my lord? 18862 J. P. Tourond (For Province) Cross-exam by Mr. Rush 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 MR. WILLMS: I object, my lord. There is no foundation for this document going in. There is no identification of the photographer. I mean, if my friend wants to mark it for identification, for whatever that's worth, that's fine. Well, I don't need a photographer to identify a photograph. You need somebody to recognize what it is. What it is. And what I can say is the witness's evidence is that it may be Morice Lake. And in my submission, to that limited extent, it's admissible as a photograph. WILLMS: Well then, perhaps I will, after my friend let's me know what number it is on his exhibit list, I can tell you later. All of these were disclosed on Alfred Joseph's evidence by request of counsel. It doesn't have much evidentiary value, except a picture of something that might be Morice Lake. To that extent, it can be an exhibit. (EXHIBIT 1103: PHOTOCOPY OF TWO PHOTOGRAPHS) MR. RUSH: THE COURT MR. RUSH: MR. MR. RUSH: THE COURT: MR. RUSH: Q THE COURT: MR. RUSH: THE COURT: MR. RUSH: THE COURT: MR. RUSH: Q A Q A Q A Q Now, you have said that -- We are talking about the one -- The one in the lower right hand corner. The lower one only? Yes. I didn't draw the witness's attention to the upper one. All right. Thank you. Now, Mr. Tourond, you said that you had seen some people hunting during the course of your job as a forest technician? Yes. And is it correct to say that the place where you have seen hunting is where you have seen hunters at their camps and where you have seen people driving along the road doing hunting from the vehicles? And people walking along the road or near the road that I observed. So, the occasions on which you have seen people hunting are where people are located at a camp or are on the road; is that right? Or just off the road. But visible from the road? 363 J. P. Tourond (For Province) Cross-exam by Mr. Rush 1 A 2 Q 3 4 5 A 6 Q 7 A 8 Q 9 10 11 A 12 13 Q 14 A 15 16 Q 17 18 A 19 THE COURT 20 A 21 22 MR. RUSH: 23 Q 24 25 26 A 27 28 29 Q 30 A 31 Q 32 33 A 34 Q 35 A 36 Q 37 38 39 40 41 42 43 A 44 Q 45 A 46 Q 47 But visible from the road. And I take your evidence to be that you have not observed any hunting of any kind in places away from the road or away from the camps? While working for the Forest Service? Yes. Not while working for the Forest Service, no. The people that you saw hunting by the road in vehicles, were these native or non-native people? Could you tell? The ones who I can remember and observed were non- native . It's illegal to hunt from the road, isn't it? It is not. Only certain roads are designated as such but other roads are not. I see. Is it common practice to hunt from the road in your area? A lot of the non-local people hunt that way, yes. : Is it still illegal to hunt from a vehicle? Well, you can't, not supposed to shoot from a vehicle but you can stop the vehicle, get out and shoot. Now, the area around Tsichgass, you said that you were aware that Matthew Sam had been in the area around Tsichgass, I think you said trapping, didn't you? Yes, I said that I had seen him, I think he was also hunting, I seen him and his wife go up either in sleigh in wintertime or by wagon in the summertime. And come back? And come back, yes. And you knew that Roy Morris was in that area hunting too, didn't you? No, I do not. That's an area where Roy Morris trapped, isn't it? That's what you said. I never saw him trapping there. I see. Now, I want to show you a map, Mr. Tourond, that was entered as an exhibit in the cross- examination on the territorial affidavit of Roy Morris. And this is Exhibit 8 for identification, I believe. Now, just want to ask you if you can recognize the area on this poor photocopy of Exhibit 8, cross-examination of Mr. Roy Morris? Like the area, the whole map? The whole area, yes. Yes, I do. It helps you locate yourself because the area that is marked with Barry Grainger is an area that you can 18864 J. P. Tourond (For Province) Cross-exam by Mr. Rush 1 2 3 A 4 Q 5 6 7 8 A 9 Q 10 11 A 12 13 Q 14 15 16 A 17 Q 18 19 20 A 21 Q 22 23 A 24 THE COURT 25 26 MR. RUSH: 27 A 28 29 Q 30 31 32 A 33 Q 34 35 36 A 37 Q 38 39 A 40 Q 41 42 43 44 45 A 46 Q 47 A recognize where the trapline, his trapline was located, right? Yes. And you will notice that to the south and to the west and east of the area, where your uncle Barry Grainger had his registered trapline, is an area that is marked as being a trapline of Roy Morris, do you see that? I see that on the map. Yes. And you know that, don't you, as being an area that was registered to Roy Morris? I know it was registered to Roy Morris but I do know that it's registered to John Mould now. I think you have told us that. This area was registered to Roy Morris wasn't it, that's what you understand? Yes, yes. And the area up to the east of your uncle Barry Grainger's place that was also, you understand to be, registered to Roy Morris? Well, it's within the same boundaries. My lord, these haven't been, as yet, haven't had the opportunity of seeing these. Yes. : All right. Madam registrar has a number eight but probably from a different cross-examination. Yes, that's correct. This looks like an old map and there could be some boundary differences that I wouldn't be aware of. The area of Tsichgass Lake though is the area where you saw or at least you were aware of Matthew Sam having hunted or trapped? In the vicinity, yes. And this vicinity is the same area where this map seems to mark the registered trapline area of Roy Morris, is that right? Yes. And you tell us that you have never seen Roy Morris trapping in that area; is that right? That's right. You will notice as well that south of Roy Morris's trapline is what appears to have been marked as Roy Morris's trapline, is an area that is attributed to someone by the name of Cyril M. Shelford; do you see that? Yes. Are you familiar with that area? I am familiar with the area. 365 J. P. Tourond (For Province) Cross-exam by Mr. Rush 1 Q 2 A 3 4 Q 5 A 6 Q 7 A 8 Q 9 10 A 11 Q 12 13 14 15 16 A 17 Q 18 19 A 20 Q 21 22 23 A 24 Q 25 26 A 27 Q 28 A 29 THE COURT 30 MR. RUSH: 31 Q 32 33 A 34 Q 35 A 36 37 38 Q 39 A 40 Q 41 A 42 Q 43 A 44 Q 45 A 46 47 Have you ever seen Cyril M. Shelford trap? That area is now different and it's broken into other traplines. That wasn't my question. No, I have not seen Cyril Shelford trap. You know who Cyril Shelford is, do you? Yes, I do. You have never seen him hunt out there either, have you? No, I have not. You mentioned in your examination this morning, Mr. Tourond, that you had knowledge of there being a family, or persons by the name of Skin at the Tatla Reserve when you knew of Matthew Sam and his wife Amelia? Yes, I related that incident this morning. Did you ever see any of the people whose surname was Skin at the Tatla Reserve? I think I did when I was younger, yes. And do you know whether or not any of the people that you saw were living at the Tatla Reserve at that time or do you have a recollection of that? No. No. Apart from Matthew Sam and his wife Amelia, who else lived at the Tatla Reserve as you were a young person? Their daughter, Violet Sam. Anyone else? No, not that I could remember. : How do you spell that? T-A-T-L-A-T, I think. And you told us, Mr. Tourond, that you had been to Bill Nye Lake? Yes. And when were you there? I have been there on several occasions, once flying in and the rest of the time I drove in and the first time I was there was about eight years ago. Is that when you flew in? Yes. And when did you drive in? Probably a year or so later than that. And were you there again? Yes, I was. When? A few occasions after that, and I hunted that area here a couple of years ago. It's marked on that guiding report as McBride Lake but that's in close 18866 J. P. Tourond (For Province) Cross-exam by Mr. Rush 1 proximity. 2 Q You are saying that where it says McBride Lake on the 3 report it doesn't say Bill Nye Lake? 4 A No, I didn't mean to say that but you get one 5 geographic location and Bill Nye is in the same area. 6 Q Well, were you at Bill Nye? 7 A I was at Bill Nye and I was at McBride. 8 Q Do you know who Bill Nye was? 9 A No, I don't. 10 Q And Anzac Lake, do you recognize Anzac as -- do you 11 know the lake? 12 A Is that what I pronounce Anzac? 13 Q I guess so. 14 A Whereabouts is it located? 15 Q I don't know. I just took a lake and you said you 16 were at Anzac Lake. 17 A Yes. 18 Q How do you spell that? 19 A I guess A-N-T-Z-A or something. I don't know. I have 20 to look at it on the map. 21 Q And when were you there? 22 A I was there with my uncle the first time 12 to 14 23 years ago. 24 Q And how often were you there, how many times have you 25 been there? 26 A I was there again probably eight years ago. I helped 27 fight a small lightning strike fire near the shore of 28 Anzac Lake. 2 9 Q And what time of the year was that? 30 A In the summertime. 31 Q Was that the same with Bill Nye, were you there in the 32 summer, except I guess when you were guiding? 33 A I was, yes, I was guiding in the fall there, I was -- 34 when I flew in it was in the wintertime and then I was 35 there on the other occasions during the spring and 3 6 summertime. 37 Q And I took your evidence to be that when you were at 38 Bill Nye Lake and Anzac Lake, you didn't see anybody 39 there? 40 A That's correct. Other than the firefighters at Anzac. 41 Q Those are the people you took in? 42 A Yes. 43 Q I take it there were some native people among those? 44 A Yes, I think there was. 45 Q In fact it's the case, is it not, Mr. Tourond, by and 46 large there are native and non-native people fighting 47 the fires in your district? 18867 J. P. Tourond (For Province) Cross-exam by Mr. Rush 1 A Yes. 2 Q And you've -- the guiding that you have done is 3 guiding that you have done, I think you have said, in 4 respect of your mother's guiding permit and you have 5 been into Nadina Lake and Duck Lake and Jones Lake; is 6 that right? 7 A Yes, I have been to all three. 8 Q And I think you have said that you have been to Poplar 9 Lake and Ahtna Lake? 10 A Yes. 11 Q And that was in respect of the guiding activities that 12 you did? 13 A Those were, but Nadina Lake was not. 14 Q Well, I take it you have been there what, on other 15 occasions than simply guiding? 16 A Yes. 17 Q You have been to Stepp Lake, have you? 18 A Yes, once and I have flown over it several times. 19 Q And that was in relation to the guiding? 20 A No, it was not. Well, I was not guiding, no. 21 Q But it was in relation to your mother's guiding 22 activity, wasn't it? 23 A Yes, I was scouting the area but I wasn't guiding 2 4 anybody. 25 Q Is that true at Kidprice? 26 A No, I was guiding at Kidprice. 27 Q Am I right, Mr. Tourond, when I say to you that when 28 you guide you want to take people, your clients, to 29 places where you know there is going to be game? 30 A That's correct. 31 Q And you also take them to places where you know there 32 aren't going to be people? 33 A Well, you try to avoid places where there isn't too 34 many people, but on the road-accessible areas that's 35 next to impossible. 36 Q The idea is that you try to go to places where the 37 hunting, as I understand it, is -- you hunt where 38 there aren't other people accessing the same game? 39 A Yes, you try to. You walk either off the road to a 40 meadow or a lake that's a fair distance from a known 41 road in hopes that there is nobody else that knows 42 about the lake or is hunting at that lake or meadow or 43 whatever. But that doesn't guarantee there isn't. 44 Q No, that's true. 45 And your efforts at hunting big game, moose and 46 bear, to some degree, are determined by the absence of 47 people who don't frighten the game when you're there? J. P. Tourond (For Province) Cross-exam by Mr. Rush 1 A Well, you try, yes. 2 Q You don't want the game frightened away otherwise that 3 would presumably prevent somebody that you are guiding 4 getting a kill; isn't that right? 5 A Yes, but we still hunt in areas of logging and whatnot 6 where there is continuous noise. 7 Q Who is Shirley Wilson? You told us that you knew a 8 person by the name of Shirley Wilson? 9 A Shirley Wilson lives on the Tatla Reserve near our 10 place. 11 Q When did she move there? 12 A I would say somewhere around six years ago or so. 13 Q You're not sure about that, are you? 14 A No. Just a minute. Four or five years ago, I think. 15 Q And is she a native person? 16 A I think she is. 17 Q Is she married? 18 A Well, she is with a fellow. I am not sure if she is 19 married or not. 20 Q Is he a native person? 21 A No, he is not. 22 Q And do they have a family? 23 A Yes, there is kids at the house. 24 Q They have a house on the reserve, do they? 25 A Yes, they do. 26 Q You told us she was on the east side of the Tatla 2 7 Reserve? 28 A Yes. 29 Q And how many other houses are on the reserve? 30 A There is just the Wilson house and the Bill Sholtie 31 house and there is an old cabin down by the lake. I 32 don't know if it's livable or not. 33 Q You haven't been down there? 34 A No, I have not, for years. 35 Q I wonder if you could place before the witness, madam 36 registrar, Exhibit 1100. It's the outfitter's licence 37 of 1987. I am sorry, the declaration and report of 38 guide outfitter, 1987. 39 Q Do you have that in front of you, Mr. Tourond? 40 A That's Exhibit 1100? 41 Q Yes. 42 A Yes. 43 Q Can you turn to the fifth page along. And you see 44 this is for the period 1987? 45 A Yes. 46 Q The hunting period from 09/21 to 09/26? 47 A I must have the wrong one. Okay, yes. 18869 J. P. Tourond (For Province) Cross-exam by Mr. Rush 1 Q That is in relation to a Mr. Jennings? 2 A Yes. 3 Q And if you will just go along to the next one in line 4 it says in relation to a Mr. Lien, L-I-E-N? 5 A Yes. 6 Q And that's -- that indicates that that's at McBride 7 Lake? 8 A Yes. 9 Q And then the next one along is a Mrs. Skidmore. 10 A Yes. 11 Q And that's in the period 09/21 to 09/26? 12 A Yes. 13 Q This seems to suggest to me that you were guiding 14 three people in the same period; is that right? 15 A Yes, I was guiding three people, not together, but 16 during the same time. 17 Q Is there a regulation with regard to the number of 18 people you can guide at one time? 19 A I can only guide two people at one time but I wasn't 20 guiding three people at one time. 21 Q You have got things back up in order there? 22 A Yeah. 23 Q I would just like you to explain for me, please, it 24 appears there is a day hunt for Mr. Jennings, is it? 25 A Is it a what? 26 Q A one-day hunt? 27 A No, it wasn't a one-day hunt. 28 Q How long was that hunt? 29 A I think what I recall is this hunt terminated early, 30 they were booked for the full week between the 21st 31 and the 26th but it terminated early because of bad 32 weather and then I went on to hunt with Miss Skidmore 33 in the latter part of that week. 34 Q I just wanted to determine whether or not you were 35 guiding three people at the same time, Mr. Tourond. 36 Were you doing that? 37 A I think I mentioned previously, I was not. 38 Q The form indicates that it's 09/21 to 09/26, does that 39 mean that that form in terms of those entries is 40 incorrect and that's in terms of Miss Skidmore? 41 A This form is filled out for the week those people are 42 hunting. There is cases where you don't hunt the same 43 person all week. Some other person could hunt that 44 person for a day or whatever and that was the way the 45 form was filled out that they were hunting during that 46 week. 47 Q Well, she wasn't hunting with you for that period, was 18870 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 J. P. Tourond (For Province) Cross-exam by Mr. Rush MR. A RUSH: THE COURT she? Not for the full period, no. My lord, those appear to be the questions that I have for this witness but I would just like to take the break now and determine if there is anything else I want to ask him and if there is I will do so. All right. We will take the afternoon adjournment now. (PROCEEDINGS ADJOURNED FOR SHORT RECESS) I hereby certify the foregoing to be a true and accurate transcript of the proceedings herein to the best of my skill and ability. Wilf Roy Official Reporter (PROCEEDINGS RESUMED AT 3:20 P.M.) THE REGISTRAR: Order in court. THE COURT: Yes, Mr. Rush. MR. RUSH: Those are my questions, my lord. THE COURT: Mr. Willms? MR. WILLMS: No re-examination, my lord. THE COURT: All right. Well, I suppose you don't want to call another witness. I am sorry, Mr. Tourone, you are excused now. (Witness aside) THE COURT: Are you ready to start another witness? MR. WILLMS: We propose to call Mr. Shelford tomorrow morning, my lord. THE COURT: We will adjourn until ten o'clock tomorrow morning. THE REGISTRAR: Order in court. Court stands adjourned until ten o'clock tomorrow morning. 18871 J. P. Tourond (For Province) Cross-exam by Mr. Rush 1 (PROCEEDINGS ADJOURNED AT 3:22 P.M. UNTIL JULY 18, 1989) 2 3 4 5 6 I hereby certify the foregoing to be 7 a true and accurate transcript of the 8 proceedings herein transcribed to 9 the best of my skill and ability. 10 11 12 13 14 15 TANNIS DEFOE, Official Reporter 16 UNITED REPORTING SERVICE LTD. 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
Trial proceedings
British Columbia
KEB529.5.L3 B757
English
Uukw, Delgam, 1937-
Indigenous peoples--Canada
Oral history
Wet'suwet'en First Nation
Vancouver : University of British Columbia Library
Vancouver : United Reporting Service Ltd.
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Original Format: University of British Columbia. Library. Law Library.
[Proceedings of the Supreme Court of British Columbia 1989-07-17]
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