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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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3014 Proceedings 1 Vancouver, B.C. 2 February 2, 1988 3 4 (PROCEEDINGS RECONVENED AT 10:00 a.m.) 5 6 THE REGISTRAR: In the Supreme Court of British Columbia, this 7 Tuesday, the second day of February, 1988, in the 8 matter of Delgamuukw versus Her Majesty the Queen at 9 bar, My Lord. Both Mr. Alfred and Mr. Holland, you 10 are still under oath. 11 THE COURT: Ms. Mandell. 12 MS. MANDELL: Thank you, My Lord. Two preliminary matters. I 13 first like to advise the court that Mr. Rush will be a 14 bit late this morning and I ask the court's leave with 15 respect to that. 16 THE COURT: Certainly. 17 MS. MANDELL: And I also wanted to advise the court that there 18 was a death in Mr. Alfred's family yesterday, and 19 the -- both Mr. Alfred and Mr. Holland will be wanting 2 0 to go home for the arrangements to be made for the 21 funeral feast. I've advised my friends of this and 22 all parties will take steps to try to be finished the 23 evidence of this witness by noon on Wednesday. But I 24 wanted to advise Your Lordship of that. 25 THE COURT: That is the evidence in chief or the evidence -- 26 MS. MANDELL: No. I hope to be finished the evidence in chief 27 by the break now. 28 THE COURT: Yes, all right. Well do you have another witness to 29 follow? 30 MS. MANDELL: Yes. 31 THE COURT: All right. Well I'm sure I speak for all of us when 32 I express our regrets at the loss to which the family 33 has suffered. May I inform counsel that if it's 34 convenient, I would prefer not to sit on Friday 35 afternoon. There is the midwinter meeting of the 36 Canadian Bar Association and they asked me to make a 37 report on the state of the trial which is a matter of 38 some concern to the bar, and I have indicated to them 39 I would try to make myself available. I don't think 40 it's essential I be there but I'm rather expected to 41 tell the lawyers what they already know. 42 MS. MANDELL: That you are overcrowded. 43 THE COURT: No. That this case is taking up all their time I 44 think is what I have to tell them. I'll leave that 45 with counsel and they can let me know if there is 46 going to be any overwhelming difficulty in that 47 regard. 3015 H. Alfred (for Plaintiffs) Submission by Mr. Plant 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. PLANT THE COURT MR. PLANT THE COURT MR. PLANT I'm not rising to speak on that matter. I can't give Your Lordship any assurances nor could I give my friend any assurances yesterday about the timetable for completion of cross-examination. I should say now that if it became necessary to do so, subject to your Lordship's convenience and to the wishes of my friends, I would not oppose any request for an adjournment or an interruption in this witness' evidence. Yes. Undesirable though that would ordinarily be. Yes. On another matter, My Lord, I briefly spoke to Your Lordship at the close of proceedings last trial week about a Rule 2 8 matter. We some time ago brought on an application to examine Heather Harris pursuant to the provisions of Rule 28. That application was adjourned at my friend's request -- not Ms. Mandell but Mr. Grant and Mr. Rush, in order that Miss Harris be afforded the opportunity of answering questions in writing which I subsequently delivered to her. That -- those questions were delivered in the middle of November, some time later I received Mr. Grant's assurance that the answers would be forthcoming by the middle of January. He subsequently advised me that that was not possible because of an illness, and that the answers would be forthcoming by the 21st of January. I haven't received the answers yet. The questions that I've asked are matters of considerable importance from our perspective, and I'm anxious that some mechanism be put in place for procuring the answers as early -- as early a date as possible. Now Ms. Mandell is not someone that I have dealt with on this, so it may be that Mr. Rush is the appropriate person to respond, or it may be that Mr. Grant is. I'm concerned not to let the matter drag much longer, and I'm in your Lordship's hands in a way as to what the appropriate way of proceeding is. If I just make this comment: I'm not aware that my friends would oppose the -- an application to examine Ms. Harris other than on the basis that they have or intend to provide answers in writing. So subject to that caveat, I repeat what I've said already, namely I'm anxious that the matter be brought forward, and I suppose secondarily, I would be prepared to speak to it again later this week to try and bring some finality to what is becoming a fairly long waiting 3016 H. Alfred (for Plaintiffs) Submission by Ms. Mandell 1 process for us. 2 THE COURT: All right. Ms. Mandell? 3 MR. MACAULAY: My Lord, before Ms. Mandell continues with her 4 examination, Mr. Rush did phone me last night about 5 the unfortunate death in the witness' family. All I 6 can say is that the length of our cross-examination -- 7 we are not noted for lengthy cross-examinations but 8 the length depends very much on the character and 9 extent of Mr. Plant's cross-examination. 10 THE COURT: Yes. 11 MR. MACAULAY: It may be that if Mr. Plant finds he has to take 12 until tomorrow noon, then the appropriate thing to do 13 would be to have this witness stood down and resume 14 later. This trial is not going to end shortly. 15 THE COURT: I don't think so. 16 MR. MACAULAY: But I hope that won't happen. I'll do my best to 17 be even more brief. 18 THE COURT: All right. 19 MR. MACAULAY: Thank you. 2 0 MS. MANDELL: Thank you. 21 THE COURT: Ms. Mandell, can you indicate to your friend Mr. 22 Plant what your convenience would be in connection 23 with the Heather Harris matter? 24 MS. MANDELL: I'm aware that the questions have been -- now the 25 answers to the questions have now been prepared. I'm 26 also aware that there is an intention to deliver those 27 answers as soon as they could be properly processed, 28 and that that shouldn't be a lengthy period of time. 29 THE COURT: All right. Well Mr. Plant wants to speak to it 30 again. Shall we say Friday morning? 31 MS. MANDELL: I would like to speak to Mr. Grant and Mr. Rush 32 about that because it wouldn't be in my hands to do 33 so. 34 THE COURT: If you could do so and speak to your friend and 35 we'll -- he'll -- he's at liberty to bring the matter 36 up again. Thank you. 37 MS. MANDELL: My Lord, I might simply say with respect to the 38 possibility of standing this witness down and 39 resuming -- however that may have to happen -- if it 40 does, it's from our point of view not the best 41 situation which could occur for a lot of reasons. On 42 that basis we're attempting to abbreviate the evidence 43 and I would hope that my friends would take steps to 44 assist in being to the point and to try to get 45 finished and not to count on the convenience of an 46 adjournment. It's -- we would really hope not to do 47 that. 3017 H. Alfred (for Plaintiffs) In chief by Ms. Mandell Submission by Mr. Plant 1 THE COURT: Well Mr. Alfred has been in the box for three full 2 days now. 3 MS. MANDELL: Well it's really two and a half days. 4 THE COURT: Two and a half. 5 MS. MANDELL: Two half days and one day, two days really, yes. 6 THE COURT: So it may be that your friends can complete but 7 there is no way under the present rules that I can 8 require your friends to stop asking questions if they 9 are relevant. 10 MS. MANDELL: Right. 11 THE COURT: Thank you. 12 MS. MANDELL: We'll just get on with it and hope we can do that 13 then. 14 THE COURT: Yes. Go ahead. 15 MS. MANDELL: 16 Q Mr. Alfred, I was, at the close of the day yesterday, 17 directing to your attention Exhibit 151. I wonder if 18 that could be put to the witness. 19 THE COURT: That's tab 5. 20 THE REGISTRAR: Tab number five, My Lord. 21 MS. MANDELL: 22 Q The last question which had been put to you was 23 whether there were examples to your knowledge within 24 your territory where -- when the railway was being 25 either put in your territory or maintained, the beaver 26 were affected adversely by that. And I wondered now 27 whether or not you could answer that question? 28 THE COURT: Well I have a note -- my last note is that wherever 29 the railway goes it destroys beaver habitat by 30 draining dams, so we have that answer. 31 MS. MANDELL: So the question is now, can you give examples from 32 within your territory where beaver dams have been 33 drained by the placement of the railway there. 34 MR. PLANT: Before the witness does that, My Lord, I object to 35 the question on the grounds of relevance. I should 36 indicate I object to several of the questions which 37 preceded it yesterday, that dealt with other 38 photographs. I do so on the basis that no -- no 39 activity by the Canadian National Railway or its 40 predecessor, or for that matter, the owner of the 41 Trout Creek Store can, in my submission, be relevant 42 in this proceeding. It's not the subject of any claim 43 by the plaintiffs in the prayer for relief, nor are 44 the persons -- in this case the railway and the owner 45 of the Trout Creek Store, and for that matter Mr. 46 Storey and his ranch, farm -- they are not parties to 47 this litigation, and it's not my understanding that 3016 H. Alfred (for Plaintiffs) Submission by Mr. Macaulay 1 the plaintiff's claim for declaration of entitlement 2 to compensation is based, or can be based on the 3 actions of third parties. And for that reason, I 4 don't see how any activity by the C.N.R. which may 5 have had the effects suggested by my friend, and 6 agreed to by -- as I recall, by Mr. Alfred yesterday, 7 can be relevant. 8 THE COURT: Mr. Macaulay? 9 MR. MACAULAY: My Lord, the railway is in the claim area by 10 virtue of federal action. There is -- the allegations 11 regarding the federal government are imprecise to say 12 the least. We know that the fisheries jurisdiction is 13 challenged, but yesterday was the first occasion on 14 which there was any intimation that the federal power, 15 constitutional power governing such things as railways 16 was to be plead. Leave should be clearly set out in 17 the pleadings if anything is to be made of this 18 evidence. 19 There has been a request in the circumstances 20 which we will understand for an abbreviation of 21 cross-examination, but this only -- this will enlarge 22 the area of inquiry. Are the plaintiffs saying that 23 the railway is there unlawfully, that it is 24 trespassing, that it's doing things that the -- either 25 the statute doesn't allow, or alternatively, that it's 26 saying that the federal government had no right to 27 make the grant of a right-of-way with the consequent 28 ancillary powers to the railway to establish a line in 29 the Bulkley Valley? 30 The plaintiff's, before they lead that kind of 31 evidence, ought to define in their pleadings exactly 32 in which direction they are going. Are they seeking 33 damages on account of railway activity or are they 34 seeking a declaration the railway ought not to run? 35 As I understand it, they -- if creeks -- if beaver 36 dams are dismantled, I assume it's because if they 37 didn't do so the railway track would be undermind. 38 And that the statute, of course, empowers the railways 39 to do all this kind of works in its right-of-way, that 40 will enable it to run trains along the track. We 41 don't know where we are, where this is going, and the 42 cross-examination there will have to be 43 correspondingly broad unless we understand the point. 44 The same -- we haven't heard about air travel, air 45 space yet, but the same would apply in that regard. 46 MR. PLANT: I don't think the pleadings are sufficiently 47 developed to warrant that kind of evidence. 3019 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 H. Alfred (for Plaintiffs) Submission by Mr. Plant Submission by Mr. Macaulay THE COURT: Ms. Mandell, what is — MR. PLANT: I'm sorry, My Lord. Before my friend Ms. Mandell rises to speak, I think I may not have put the -- my objection in the clearest possible terms. The fact that activity has been carried on within the territory pursuant to otherwise allegedly lawful provincial or federal legislation, is in my view relevant. The question whether or not that activity has been carried on with or without the consent of the plaintiffs is also, in my view, relevant. The irrelevant aspect of it is the question what loss had the plaintiff suffered as a result of that activity, and that is the area of inquiry which I say is irrelevant for the reasons that I tried to identify earlier, which basically is that there is no claim made in this action arising out of those acts. That's not related to their claim of compensation. MR. MACAULAY: My objection is of an entirely different kind, and perhaps I can draw Your Lordship's attention to the pleadings because I don't want to make a vague and general objection with it being difficult to follow. THE COURT: Yes. MR. MACAULAY: And particularly the prayer for relief, and the statement -- in the Statement of Claim the prayer for relief. THE COURT: Unfortunately I don't think I have the Statement of Claim here. But I have -- yes, I do have it. I would say I have it committed to memory but I don't need to rely on that now. MR. MACAULAY: Now we haven't taken any particular technical objections. We know very well what the position is regarding fisheries. This is something if Your Lordship looks at the prayer for relief, it is subdivided into four categories. The category one is the broad and general category. Item five which is the -- perhaps that's the one that deals with this kind of thing, involves a declaration of the plaintiffs' rights to ownership of and jurisdiction over the territory. Includes the right to ratify condition or otherwise refuse to ratify land titles or grants issued by the defendant province. The whole second category, of course, deals only with the province. The third category deals only with the province, and the transitional relief does not deal with the federal Crown at all. It's true that the plaintiffs claim ownership of jurisdiction generally within the territory, and that 3020 H. Alfred (for Plaintiffs) Submission by Mr. Macaulay Submission by Ms. Mandell 1 might be interpreted as so to include ownership of and 2 jurisdiction over the railways. But if that's the 3 case, my friend Ms. Mandell can so inform the court 4 and we'll all know where we stand. 5 THE COURT: Well we would, perhaps, under head one, subhead 6 four. 7 MR. MACAULAY: To govern the territory? 8 THE COURT: Yes, to govern the territory. 9 MR. MACAULAY: All right. Well if the examination — if my 10 friend says the examination is in support of that 11 claim for relief, then we'll know where we are. 12 THE COURT: Well shall we ask Ms. Mandell on what basis she 13 seeks to adduce this evidence? 14 MS. MANDELL: Thank you. My Lord, I might first respond to my 15 friend Mr. Plant who I think has raised an objection 16 which is more straightforward to deal with. The 17 plaintiffs are claiming damages under Section 12 of 18 the prayer for relief that the plaintiffs are entitled 19 to damages from the defendant province for the 20 wrongful appropriation and use of the territory by the 21 defendant province or by its servants, agents or 22 contractors without the plaintiff's consent. And my 23 friend Mr. Plant raises the fact that third parties 24 whose particular use of the land has been put to the 25 witness, are not before the court and their action -- 26 nor the actions of those working for them or for the 27 government ought to be raised in issue. Well it's 28 not. What's in issue is whether or not the plaintiffs 29 and their house members have suffered damages as a 30 result of the wrongful appropriation of their land by 31 the defendant province, and then that land having been 32 then issued to third parties who presumably are using 33 it under the lawful authority of the provincial 34 jurisdiction. If the claim were as my friend were to 35 raise it, I think the example might be that somebody 36 receives the land from the province for the purposes 37 of farming and instead unlawfully chooses to mine it, 38 or do something else which is outside the authority 39 that the province vested in that person, and that 40 caused damages. 41 I would certainly agree with my friend in that 42 instance that we are not entitled to bring a case 43 which would include the damage which was done outside 44 the ambit of the provincial authority as against a 45 third party in the territory. But in this case, the 46 questioning is with respect to the appropriation of 47 land by third parties under the authority of the 3021 H. Alfred (for Plaintiffs) Submission by Ms. Mandell 1 province and the jurisdiction that the province claims 2 to have done that. And that, in my submission, is 3 foursquare within the confines of the case. 4 My friend Mr. Macaulay raises another point and 5 that's with respect to the problems posed for the 6 federal government as to the extent to which the 7 federal government also has -- is being challenged for 8 wrongfully appropriating aspects of the plaintiffs' 9 territory. And on that front, I might draw to your 10 Lordship's attention the fact that the damage claim is 11 as against the province, it's not specifically as 12 against the federal government, but I do want to 13 reinforce the fact that the content of the aboriginal 14 rights, the sections in the relief claim dealing with 15 that, declare set declarations that the plaintiffs 16 have a right to the ownership of and jurisdiction over 17 the territory. And particularly with respect to 18 number four, that they've got the right to govern 19 themselves and where there is interference with that 20 to their detriment and which causes them loss and 21 inabilities to control the jurisdictional rights which 22 are being asserted, in our submission, it's both an 23 aspect of the proof of the jurisdiction which they 24 otherwise assert, as well as a demonstration of the 25 difficulties in their so asserting it. And in my 26 submission, the questions on the railway particularly 27 are part of the method of proving number four of the 28 content of aboriginal rights. 29 THE COURT: I wouldn't have read number four particularly as an 30 assertion that the railroad had no right to be where 31 it is. Do you say that that's the -- 32 MS. MANDELL: That's not the purpose of leading that evidence, 33 no. But it is important from the point of view of the 34 plaintiff's case, to prove -- to show the chiefs' 35 understanding of their territory and the damages done 36 to the territory and to the governing authority of the 37 chiefs in the course of their trying to govern 38 themselves and their members of their houses within 39 their territory. And I think that the evidence is 40 important on that point. 41 MR. MACAULAY: If the railway — 42 THE COURT: I'm sorry, Mr. Macaulay, I think perhaps we should 43 let Miss Mandell finish. 44 MR. MACAULAY: Oh, hadn't she finished? 45 THE COURT: You are not finished, or are you finished, Ms. 46 Mandell? 47 MS. MANDELL: Well, I had finished. 3022 H. Alfred (for Plaintiffs) Submission by Ms. Mandell 1 THE COURT: I see. Well — 2 MS. MANDELL: Unless there were questions from the bench? 3 THE COURT: I have all sorts of questions, I'm just at a loss as 4 to -- to see my way through all of this. Does it 5 really matter what the consequences of the railroad 6 are? I mean I can -- I think I could take judicial 7 notice of the fact that if you build a railway through 8 beaver infested lands you are going to disturb that 9 habitat. Do we have to have detailed evidence on 10 that? Surely the question is that the nature of the 11 rights asserted are going to govern that question, the 12 consequences surely are just the tail that goes with 13 the hide. You see I'm not sure you've pleaded 14 anything that would entitle you to say in argument 15 that the railroad is not entitled to be where it is. 16 But even if you had, is it necessary to have detailed 17 evidence of interference with individual streams or 18 even examples of it? There are limits to the -- to 19 the size of the measure and the size of the sand that 20 they are going to grind here. How does the knowledge 21 of what the railroad does at a particular location, or 22 the fact that it interferes with beaver dams at all, 23 really advance the trial of these issues? 24 MS. MANDELL: Well a good deal of the proof of the plaintiffs' 25 case is involved with the knowledge which the chiefs 26 and their house members have with respect to their 27 territories, and also, the method by which that 28 territory is harvested and conserved and managed. And 29 the extent to which there is activity in the territory 30 which is both known by the chief and is something 31 which is -- and something within the realm of the 32 decision making which needs to be taken into account 33 in the harvesting and the conserving and the managing 34 of the territory, that evidence becomes relevant to 35 the case. 36 THE COURT: That railroad has been there since 1912 or something 37 like that, hasn't it? 38 MS. MANDELL: I'm not sure of the date. It's a long — it's 39 turn of the century activity but I'm not sure 40 precisely when. But, My Lord, that's not the point 41 either, because part of the way in which the case is 42 now being advanced by both sides, in our submission at 43 least, is that the Wet'suwet'en have been in their 44 territory for many hundreds and hundreds of years, and 45 to the extent that there has been alienation, and from 46 the Wet'suwet'en point of view fairly recent times, 47 although from the province and the federal government 3023 H. Alfred (for Plaintiffs) Submission by Ms. Mandell 1 point of view, the time span may be viewed as longer, 2 that that's not the test in terms of what rights the 3 plaintiffs have. 4 THE COURT: Well what it really comes down to, is it not, is the 5 question of consequences. If the Wet'suwet'en have a 6 right to govern the territory, transcending their 7 right of Canada to authorize the construction of rail- 8 roads, then you win it seems to me, and do 9 consequences matter? I didn't put the other side of 10 that question. If the -- if you are right, the 11 plaintiff's right to govern their territory is subject 12 to Canada's constitutional jurisdiction, then lines of 13 steam or rail I think they call it in the 14 constitution, then you lose the game. Do consequences 15 matter? 16 MS. MANDELL: Although, I mean that's — it's a forward looking 17 view. The point at this stage, though, is to prove 18 the content of the right. And in our submission, it 19 matters both what plaintiffs -- how the plaintiffs 20 view their territory and what's happened on it, both 21 from the point of view of their ability to govern it 22 and their -- and their activity in the past and in the 23 present and in the future to govern it, as well as the 24 way in which there has been interference with that by 25 the coming of third parties and the authority of the 26 province, and to a lesser degree, pled in this case, 27 the damage done by the federal government to that 28 territory. That's part of the analysis of the content 29 of the right. Now I agree with Your Lordship that at 30 the end of the day, what will matter is who ultimately 31 will have the governing authority with respect to the 32 territory. 33 THE COURT: And the nature of the governing authority. 34 MS. MANDELL: And the nature of the governing authority is going 35 to determine the case. But at this point, the 36 declarations are geared towards a discussion of what 37 is the content of that right, and part of what's being 38 asserted by the plaintiffs is that the content 39 includes a governing authority. 40 THE COURT: Well I must say that I have been very troubled about 41 a lot of the evidence for some weeks, particularly 42 this question of consequences which has now emerged 43 out of a mass of detail. I would have thought that 44 the nature of the right would not in any way depend 45 upon what's happened in any detailed sense, where, if 46 the whole territory had been clear-cut, that would 47 either be lawful or unlawful, and it wouldn't matter 3024 H. Alfred (for Plaintiffs) Submission by Ms. Mandell Submission by Mr. Macaulay 1 what the nature of the logging was, for example. 2 MS. MANDELL: Although in our view, it certainly is significant 3 whether or not the alienations or the logging or 4 whatever example you are going to take, took place in 5 a manner which involves the chiefs and the authority 6 which they exercise and the decision making which they 7 are attempting to exercise as well, or whether or not 8 it doesn't. If there is no authority of the chiefs or 9 their houses involved in that activity, then it would 10 be, in my submission, hard for Your Lordship to 11 understand the nuances of the jurisdiction which is 12 being asserted by the plaintiffs. 13 On the other hand, in the face of that kind of 14 activity, Your Lordship has a window into the way in 15 which the chiefs and the chiefs on behalf of their 16 houses exercise their jurisdiction, and are frustrated 17 in what they feel is the probable exercise of their 18 jurisdiction. And I think that it's on that front 19 that there is -- there is fruitful evidence for Your 20 Lordship to take notice of. 21 THE COURT: All right. Well — 22 MR. MACAULAY: My Lord, I have to respond to that, if I may. 23 Either the railway, according to the plaintiffs' 24 theory, is there as a trespasser or it's not, and we 25 don't know all the places. If it's a trespasser, of 26 course everything it does has to be accounted for. If 27 the railway is not a trespasser, the question arises 28 what are its powers within its right-of-way? We don't 29 know yet the limits of the right-of-way, we don't know 30 if that beaver dam is in a right-of-way or not. If 31 the claim is not -- or the allegation is not that the 32 railway is a trespasser, but only that it is 33 committing -- that it's causing damage for which the 34 plaintiffs claim compensation, then the plaintiffs may 35 be in the wrong court. In fact, the plaintiffs do not 36 claim damages against the federal court and I guess 37 it's for that reason. 38 This evidence sounds like rather detailed 39 specific evidence supporting a claim for damages. If 40 it's in the right-of-way it's nothing to do with the 41 province and there is no claim against the federal 42 government, so why are we hearing it? 43 MR. PLANT: I wonder if I might just say one thing in reply to 44 Miss Mandell? 4 5 THE COURT: Yes. 46 MR. PLANT: I concede that the plaintiffs have put in issue in 47 this lawsuit as against the province, the question 3025 H. Alfred (for Plaintiffs) Submission by Mr. Plant 1 whether or not the province's act in alienating or 2 disposing of certain lands -- 3 THE COURT: Yes. 4 MR. PLANT: -- is wrongful, and whether or not such a wrongful 5 act would give rise to the right to compensation. I 6 do not concede and say, rather, that the plaintiffs 7 have not put in issue any claim for compensation 8 arising out of the acts of third parties pursuant to 9 the alienation or the entitlement that they have. 10 That's where I have a concern, it arises out of what 11 loss have you suffered because of the operation of the 12 Trout Creek Store? I look in the pleadings for some 13 assertion that the activities by the owners of the 14 Trout Creek Store are in issue, and I -- 15 THE COURT: Well that's a consequence of the issue, isn't it? 16 MR. PLANT: Well if there is an argument that the province is 17 liable for the -- if there is a foreseeability or 18 remoteness argument then that may be so, but I -- my 19 understanding is that this issue was advanced once 20 before Mr. Justice Taylor when the plaintiffs had 21 amended their pleadings to seek to make the province 22 liable for the actions of all persons, and the 23 pleading of the plaintiffs was amended and the claim 24 confined to the action of the province, its servants, 25 agents or contractors, whatever the language is in 26 paragraph 12 of the prayer for relief. And to that 27 extent, if that is my friend's argument, I -- I 28 haven't heard it made so far, I don't think it's there 29 on the pleadings, but I would not press Your Lordship 30 to a ruling now on that aspect of the matter. 31 THE COURT: All right. Well I'm going to lay the cards way out. 32 I think there is a very serious problem here, Ms. 33 Mandell, and I'm going to hear the evidence subject to 34 the objections, and I think at some convenient time we 35 must have a full argument on this question. I think 36 the legal question is the relevance and therefore the 37 admissibility of the consequences of alienation on the 38 part of the province and railway type activities on 39 the part of the federal government. My preliminary 40 view, and I'm not going to rule and therefore I'm not 41 going to stop you from adducing your evidence, is that 42 the consequences of the exercise over the federal 43 power with railways is highly dubious admissibility. 44 Relevance, really, and therefore admissibility. But I 45 think in the circumstances I'll allow you to proceed, 46 and if the matter is going to rise again, as I expect 47 it will, then I think we should have a full argument 3026 H. Alfred (for Plaintiffs) Submission by Ms. Mandell 1 on that question and come to grips with what is 2 obviously, in my view, a very important -- 3 MS. MANDELL: It's an important issue. 4 THE COURT: Important and significant issue. All right. 5 MS. MANDELL: Thank you, My Lord. If I might just ask you one 6 question before I proceed. With respect to your 7 framing up of the issue, you've mentioned the word 8 "consequences of alienation". Do I understand you 9 correctly that what you're referring to is the very 10 many ways in which the alienation has ultimately today 11 impacted upon the chiefs and their houses? 12 THE COURT: Yes. 13 MS. MANDELL: Okay. 14 THE COURT: And on the geography of the territory. 15 MS. MANDELL: All right. 16 THE COURT: There could be an impact on geography without an 17 impact on the chief or the house at all. 18 MS. MANDELL: Right. And you're — the way that — again, if I 19 might ask you, the point then that you've -- that 20 you've seen to be clearly part of the case, is the 21 fact that if the alienation took place at all, that 22 will be part of an ultimate solution at the end of the 23 day, and the actual consequences of the alienation are 24 not something which -- may not be something which the 25 evidence ought to address. 26 THE COURT: Yes. As I said before, if the province can lawfully 27 alienate forest lands either in fee or for logging, 28 then it seems to me that whether that's clear-cut or 29 selective logging or a single blade of grass, to go 30 back to the trespass cases, then it may not make any 31 difference. It's really a question of who has the 32 power. And the clash, it seems to me, or the contest 33 is between the alleged right of the chiefs to govern 34 the territory, as opposed to the alleged right of the 35 province to manage or govern it in the way that each 36 of them in their respective ways have purported to do 37 in the periods since the arrival of the white man in 38 British Columbia. 39 MS. MANDELL: And then just taking this one step further from 40 that perspective, the issue as to the damages that are 41 claimed by the plaintiffs in this case, that whole 42 issue, if the alienation issue were determined by the 43 case as to the consequences, that would be put over to 44 a later portion of the trial? 45 THE COURT: I'm proceeding on the basis that it has been put 46 over and that -- and that although I don't recall now 47 whether we ever had any discussion about whether the 3027 H. Alfred (for Plaintiffs) In chief by Ms. Mandell 1 evidence of damage would be adduced at this trial, I 2 think it was decided it was not. 3 MS. MANDELL: Well there was an agreement between the parties 4 which was filed the first day of the trial. 5 THE COURT: I have to go back and review that, I haven't looked 6 at it for some time but I think we should have a 7 discussion about this -- 8 MS. MANDELL: A full scale. 9 THE COURT: — at a more convenient time. 10 MR. MACAULAY: Well the — I hope that that will include a 11 discussion of the extent of the constitutional 12 challenge, if that's what it is. And it's not just 13 railways it's airports, the Smithers airport, where we 14 stand there. The right to take land for defence 15 purposes. 16 THE COURT: Well that's purely a matter of pleading, is it not, 17 Mr. Macaulay? 18 MR. MACAULAY: Yes. But it ought to be pleaded and it isn't. 19 THE COURT: You say it's not plead? 20 MR. MACAULAY: It's not. 21 THE COURT: And if it is pleaded at the moment it is obliquely 22 mentioned, if at all, in paragraph 1 (4) of the 23 prayer. 24 MR. MACAULAY: Only of the prayer for relief. It isn't 25 raised -- 2 6 THE COURT: Yes. 27 MR. MACAULAY: — in the body of the statement. 2 8 THE COURT: I think the — I think the argument should include 29 that important question. 30 All right, go ahead, Ms. Mandell. 31 MS. MANDELL: 32 Q Thank you. Before the discussion about the relevancy 33 of the question, Mr. Alfred, I had asked you to 34 address your mind to Exhibit 151, and the question to 35 you was where within your territory are you aware that 36 the railway has interfered with the beaver? 37 A Just north of Moricetown there was a beaver dam there, 38 and then one summer that was blown up. Three times 39 now. He says there is no more beaver in that area. 4 0 Q All right. And do you know who blew up the dams? 41 A It was C.N.R. crews that blew up the dams. 42 Q And to your knowledge, was the railway placed on your 43 territory with the consent of Wah Tah K'eght or -- 44 A I don't know, but it seems like nobody gave them any 45 permission. 46 Q Okay. And you'll also notice on Exhibit 151, that 47 there was hydro poles that were moving -- that are 3026 H. Alfred (for Plaintiffs) In chief by Ms. Mandell 1 going along the road. Do you see those poles? 2 A Yes. 3 Q And are there hydro lines throughout Wah Tah K'eght's 4 territory? 5 A Yes. 6 Q And to your knowledge, were the hydro lines placed on 7 the territory with the consent of Wah Tah K'eght? 8 A No. They never asked us, they just went ahead and put 9 them in. 10 Q All right. Now I'm also directing to your attention 11 from that exhibit, the road that's in the centre of 12 the photograph. Have there been roads placed through- 13 out Wah Tah K'eght's territory? 14 A Yes. These roads have been put on -- put along the 15 foot trails, where the foot trails used to be, like 16 from all the way from S'aay K'e Tai to Ta begh Tai. 17 THE TRANSLATOR: Ta Begh Tai is 489, and S'aay K'e Tai I'll 18 spell, is S-'-A-A-Y, K-'-E, T-A-I. 19 MS. MANDELL: 20 Q And when you say the place where the foot trails used 21 to be, were the foot trails placed there by your 22 ancestors? 23 A Yes. My grandmother had informed me and told me about 24 these foot trails there before, and that the roads 25 were put along the same area. 26 Q All right. And to your knowledge, has Wah Tah K'eght 27 ever consented to the placement of roads within your 28 territory? 2 9 A No. 30 Q To your knowledge, has Wah Tah K'eght been consulted 31 as to where the roads, the railways or the hydro lines 32 have been placed within your territory? 33 A No. 34 Q According to Wet'suwet'en law, should Wah Tah K'eght 35 have been consulted before these activities took place 36 in your territory? 37 A If there was to be any building of roads or any 38 activity within Wah Tah K'eght's territory, they are 39 supposed to consult and ask permission from Wah Tah 40 K'eght before they do any of these things. But up to 41 now, they -- nobody has even so much as consulted with 42 Wah Tah K'eght and they just come onto the territory 43 and do as they please. 44 Q Is there any mining done, to your knowledge, within 45 your territory? 46 A Yes, there was one at K'aaz Kwe. 47 Q Okay. To your knowledge, has the mine built any road 3029 H. Alfred (for Plaintiffs) In chief by Ms. Mandell 1 in your territory? 2 A Yes. They are from the boundary line, there is a road 3 going in within my territory, going to that mine along 4 the K'aaz Kwe boundary line. 5 Q What loss, if any, did you and your house suffer as a 6 result of the mining and the mining road being in your 7 territory? 8 A Yes. White people make money on these mining 9 activities, and being on our territory we don't get no 10 benefits from it. 11 Q Okay. Do you know what mineral is mined from that 12 mine? 13 A I don't know. 14 Q Did you -- did Wah Tah K'eght give their consent for 15 that mine or the mining roads to be on your territory? 16 A No. 17 Q I would like to have the witness turn now to the 18 volume of pictures which were distributed yesterday. 19 My Lord, I might also ask that the witness and 20 yourself have before you Exhibit 164. 21 THE COURT: Yes, I have it. 22 MS. MANDELL: 23 Q Mr. Alfred, if I could ask you to turn to tab 1 of 24 the -- of the volume of pictures. Can you identify 25 the photograph? 26 A Yes. 27 Q Where is that photograph taken? 28 A That's at -- the picture that was taken there looks 29 like -- the picture was taken from the area at G'et 30 sa'lis. 31 THE COURT: Sorry? 32 A The picture was taken from G'et sa'lis. 33 THE TRANSLATOR: G'et sa'lis, G-'-E-T, S-A — 34 THE COURT: Sorry, G-'-E? 35 THE TRANSLATOR: T, S-A-'-L-I-S. 36 MS. MANDELL: 37 Q And if -- could you identify by looking at Exhibit 38 164, where G'et sa'lis is to be found within your 39 territory? 40 A This here was taken -- taken this area here, looking 41 west this way. 42 Q Is it this area? 43 A This way here looking that way. 44 Q Okay. My Lord, if you could -- if you could look to 45 trail two on the exhibit. 4 6 THE COURT: Yes. 47 MS. MANDELL: The witness has identified the shield like 3030 H. Alfred (for Plaintiffs) In chief by Ms. Mandell 1 clear-cut area -- 2 THE COURT: Yes. 3 MS. MANDELL: -- on the trail, and he has identified that that 4 is where the photograph would have been taken from. 5 THE COURT: Looking? 6 MS. MANDELL: Looking west. 7 THE COURT: Thank you. 8 MR. PLANT: I heard it more as north-west, he pointed up that 9 way more. 10 THE COURT: All right. 11 MS. MANDELL: 12 Q Are there any -- first of all, I'm sorry, I see a lake 13 in the picture. Can you see that lake? 14 A Yes. 15 Q Do you know which lake that is? 16 A Tats'eke. 17 THE TRANSLATOR: Three six nine. 18 THE COURT: Sorry? 19 THE TRANSLATOR: Three six nine. 2 0 THE COURT: Thank you. 21 MS. MANDELL: 22 Q Are there any of your boundary marks identified within 23 this photograph? 24 A Where you see the ridge on the height of land is the 25 boundary along Caas Weniige'tet tay, and on right-hand 26 side coming down the picture would be the creek 27 running down called Sde Kep. 28 THE COURT: Is that a ridge in the foreground or is it a ridge 29 off in the distance. 30 A That would be on a mountain top in the fore. 31 THE COURT: I see. On the other side of the lake? 32 A Yes. 33 MS. MANDELL: Okay. I ask that we get the spelling of that. 34 THE TRANSLATOR: Caas Weniige'tet tay, C-A-A-S, 35 W-E-N-I-I-G-E-'-T-E-T, T-A-Y. 36 MS. MANDELL: And My Lord, that mountain ridge has been marked 37 on Exhibit 164 for your own reference. 38 THE COURT: It has? 39 MS. MANDELL: It's beside the area -- also beside the area 40 marked "goats" just below Porphrey Creek on the 41 left-hand side of the map, Caas Weniige'tet tay. 42 THE COURT: Oh yes, right. 43 MS. MANDELL: I'm going to ask that that picture be marked as an 44 exhibit. 4 5 THE COURT: Yes. 46 THE REGISTRAR: Be 166, My Lord. 4 7 THE COURT: Thank you. 3031 H. Alfred (for Plaintiffs) In chief by Ms. Mandell 1 (EXHIBIT 166 - Photograph at Tab 1) 2 3 MS. MANDELL: 4 Q If you could then turn to the next photograph. Do you 5 recognize -- this is under tab 2. Do you recognize 6 the picture portrayed there? 7 A Yes. 8 Q And where is this picture taken? 9 A Same place. 10 Q It's from the same place? 11 A From the same place. 12 Q All right. And what direction is the camera facing? 13 A North-east or east. 14 Q North-east? 15 A Sorry, south-east. 16 Q That's right, thank you. And are there any features 17 of your boundary which are shown in that picture? 18 A From the creek Sde Kep where the boundary starts and 19 you can see the farthest mountains, the boundary goes 20 over the top and the height of land on that mountains 21 and it goes down at the end of the mountain, it goes 22 down and into a -- down into the valley. 23 Q All right. And what -- do you know the name of the 24 boundary which you're identifying through the peak of 25 the mountain? 26 A The Needle Point is right there on this side of that 27 one, the line goes down, that's the Needle Point 28 there. 29 MS. MANDELL: Okay. My Lord, the witness has indicated if you 30 can see in your photograph, that there is a very sharp 31 point of a mountain ridge which is snow covered in the 32 foreground of the picture between what appears to be 33 two mountains, and then moving into a valley area. 34 THE COURT: Yes. 35 MS. MANDELL: That one large point is — he has identified as 36 Needle Point and says that the boundary line is just 37 before that. 38 THE COURT: Yes. The needle point is the highest peak in the 39 picture, is it? 40 MS. MANDELL: That's right, yes. I would ask that that 41 photograph be identified as the next exhibit. 42 THE COURT: Yes. 43 THE REGISTRAR: Exhibit 167, tab 2. 44 45 (EXHIBIT 167 - Photograph at Tab 2) 46 47 MS. MANDELL: 3032 H. Alfred (for Plaintiffs) In chief by Ms. Mandell 1 Q Could you turn now to tab 3. Do you recognize this 2 photograph? 3 A Yes. 4 Q And where is that photograph taken? 5 A From the same place. 6 Q All right. And what direction is the camera pointing? 7 A South. 8 Q Okay. And are there any features of your boundary 9 which can be seen from this photograph? 10 A There is that mountain that you just identified on the 11 other picture, photo, the place called Tsee Ggexw, and 12 that's where that line goes down and this goes into 13 this picture, into the valley at a place called 14 Teeteet, and that's where the boundary goes across and 15 then up into the height of land on the peaks on the 16 left on the photo. 17 MS. MANDELL: All right. Perhaps we can get the number for 18 Teeteet. 19 THE TRANSLATOR: Tsee Ggexw is 533 and Teeteet is 73 — sorry, 20 373. 21 THE COURT: Is that the one on the left or on the right centre 22 of the photograph? 23 MS. MANDELL: The witness has identified, My Lord, that — the 24 first mountain which he referred to is off the right- 25 hand side of the photo. He then identifies that the 26 boundary comes -- being on the right-hand side of the 27 photo, he identified Teeteet which is the valley just 28 below the first mountain that you see there, and then 29 the line carries on and is identified into the 30 mountain range -- the ridge range which is the range 31 to the left-hand side of the photo. 32 THE COURT: And 373, Teeteet or some such pronunciation, is a 33 valley? 34 MS. MANDELL: That's the valley. 35 THE COURT: Yes. 36 MS. MANDELL: 37 Q And where is Kitsequkla Lake in relationship to this 38 photo? 39 A Kitsequkla Lake would be back from the valley and it 40 would be just outside the boundary. 41 Q All right. It's not visible in the photo; is that 42 correct? 43 A No. 44 THE COURT: I don't understand that at all, Miss Mandell. 45 MS. MANDELL: My Lord — 46 THE COURT: If this is looking south, Kitsequkla has to be off 47 to the left, isn't it? This is the lake? 3033 H. Alfred (for Plaintiffs) In chief by Ms. Mandell 1 MS. MANDELL: The actual photo, I believe, would be not truly 2 south, it's more south-west? 3 A South-west. 4 THE COURT: Well the lake would still be on — oh, I see the 5 lake could be on the right-hand side. 6 MS. MANDELL: The lake would be beyond Teeteet, you can't see it 7 in the photograph, but the witness has identified that 8 it would be outside the territory. The boundary line, 9 My Lord, as he has identified it, moves through the 10 valley and then back up over the range, and Kitsequkla 11 Lake would be on the other side of the valley. 12 THE COURT: All right, that's what you say. I have trouble with 13 that but it may be. 14 MS. MANDELL: 15 Q Perhaps -- is there -- if you were to be able to see 16 the lake on this picture, would it be located between 17 the mountain and Teeteet? 18 A Where you see that closest snowy mountain there. 19 Q That's on the right-hand side of the photo? 20 A And then where Tsee Ggexw would be over off the photo, 21 the lake would be between that mountain that I spoke 22 of first, and Tsee Ggexw. 23 MS. MANDELL: I would ask that that be marked as the next 24 exhibit. 25 THE REGISTRAR: Exhibit 168, My Lord, that's tab 3. 2 6 THE COURT: Yes. 27 28 (EXHIBIT 168 - Photograph at Tab 3) 29 30 MS. MANDELL: 31 Q If you could turn to tab 4. Do you recognize this 32 photograph? 33 A Yes. 34 Q Where is that photograph taken, from where is it 35 taken? 36 A There again, the picture is taken from the same area 37 of G'et sa'lis, it's looking south. 38 Q Okay. And does this photograph accurately reflect the 39 state of the clear-cut in that area at this time? 40 A Yes. 41 Q Are there any features of your boundary which are 42 visible through this photograph? 43 A You can see the farthest hill there is a ridge 44 sticking out, and then there is a ridge going down 45 across the photo nearest to you, and in between them 46 two ridges on the hill, and down would be Too Coo Kwe, 4 7 flowing down. 3034 H. Alfred (for Plaintiffs) In chief by Ms. Mandell 1 THE COURT: May I have a number or spelling for that, please. 2 THE TRANSLATOR: Too Coo Kwe T-O-O-G-H, K-'-O, K-W-E. 3 THE COURT: Thank you. 4 MS. MANDELL: My Lord, the witness was identifying the ridges at 5 the centre of the photograph. 6 THE COURT: Not the ridge that's on the — near the extreme 7 right-hand side? 8 MS. MANDELL: No. 9 THE COURT: All right. 10 MS. MANDELL: 11 Q Can you show me, Mr. Alfred, where on the map Exhibit 12 164 this location is that's just been spelt, Too Coo 13 Kwe? 14 A This one here. That little hump is right in there 15 somewhere. 16 Q Okay? 17 A Then you are looking from there to -- 18 THE COURT: East or west of the river? 19 MS. MANDELL: The river which he has identified is the one which 20 is marked on the exhibit as Reiseter River. 21 MR. PLANT: No. 22 A Reiseter Creek. 23 MR. PLANT: No, Reiseter. 24 MS. MANDELL: Reiseter. 25 MR. PLANT: And some people call it Reiseter. 2 6 THE COURT: Well I can't even find it. 27 MS. MANDELL: It's between — it's just beyond number five 28 trapline. 29 THE COURT: Oh. That's hardly a boundary of a territory. 30 MS. MANDELL: 31 Q No, I'm going to get to that. And the peak that 32 you've identified is -- is that in the area just east 33 of the word "dear hunting"? 34 A This hump over here sticking out -- sorry, it's on 35 this side over there. 36 Q You've identified the creek called Twin Creek? 37 A Between Twin Creek and Reiseter Creek you see that 38 there is the hump. 39 A That's the hump. Back here, goes along here. 40 Q And that the ridge you are identifying goes from 41 approximately between the line marked number five and 42 Reiseter Creek, back as far as -- as far as where 43 you've marked beaver entering into the Two Bridge Lake 44 area? 45 A (WITNESS NODS HEAD IN RESPONSE) 46 Q Is that a boundary of your territory or just a 47 landmark? 3035 H. Alfred (for Plaintiffs) In chief by Ms. Mandell 1 A No, no. Just a landmark. 2 THE COURT: Take the morning adjournment now, please. 3 THE REGISTRAR: Excuse me, is that an exhibit, please? 4 MS. MANDELL: Yes. 5 THE REGISTRAR: Tab 4 will be Exhibit 169. 6 7 (EXHIBIT 169 - Photograph at Tab 4) 8 9 THE REGISTRAR: Order in court. Court stands adjourned. 10 11 (PROCEEDINGS ADJOURNED AT 11:15 a.m.) 12 13 I hereby certify the foregoing to be 14 a true and accurate transcript of the 15 proceedings herein transcribed to the 16 best of my skill and ability. 17 18 19 20 21 22 Toni Kerekes, 23 O.R., R.P.R. 24 United Reporting Service Ltd. 25 26 xh2 H. Alfred (for Plaintiffs) 27 2 8 (PROCEEDINGS RECONVENED PURSUANT TO MORNING RECESS) 29 30 THE REGISTRAR: Order in court. Delgamuukw versus Her Majesty 31 the Queen at bar, My Lord, ready to proceed. 32 MS. MANDELL: Thank you. 33 THE COURT: Miss Mandell? 34 35 MS. MANDELL: 36 Q Thank you. Could you turn to tab 5? Can you identify 37 where this photograph was taken? 38 A G'et sa' lis. 39 Q Is that the same place as the previous photograph? 4 0 A Same, yes. 41 Q And what direction is the photograph facing? 42 A South. 43 Q Are there any landmarks from your territory which you 44 can identify from this photograph? 45 A This part of a mountain, foot of a mountain you see on 46 the right on this side would be the start of Ts'e dee 47 k'aay, and then the line -- 3036 H. Alfred (for Plaintiffs) In chief by Ms. Mandell 1 THE COURT: Is that Hudson's Bay Mountain? 2 THE WITNESS: Yes. 3 THE COURT: That's the shoulder on the right-hand side? 4 THE WITNESS: That's the foot of it, the beginning, yes. 5 THE COURT: Yes. 6 THE WITNESS: And then a line would be coming down, the boundary 7 would be coming down this side of it where you see 8 sort of a field, looks like a field to me, and that's 9 where the line would be coming down there and going 10 across. And the mountains at the back of the photo 11 would be Telkwa Range. 12 MS. MANDELL: 13 Q And Telkwa Range are outside Wah tah k'eght's 14 territory? 15 A Outside. 16 MS. MANDELL: All right. Thank you. I'd ask that that be 17 marked as the next exhibit. 18 THE COURT: Yes, 170. 19 THE REGISTRAR: 170, My Lord. 20 21 (EXHIBIT 170: Tab 5 of red binder of photographs) 22 23 MS. MANDELL: 24 Q If you could turn to tab 6? Can you identify where 25 this photograph was taken? 26 A Same place. 27 MS. MANDELL: All right. And are there any boundaries within 28 your territory which can be identified by this 29 photograph? 30 THE COURT: I'm sorry, could we have the direction, please? 31 MS. MANDELL: 32 Q I'm sorry, thank you. Which direction is the 33 photograph facing? 34 A From here would be south. 35 MS. MANDELL: Right. That's south. 3 6 THE COURT: Thank you. 37 MS. MANDELL: 38 Q And are there any boundary marks from your territory 39 which can be identified in this photograph? 40 A The bigger portion of the mountain you see in the 41 middle of the photo would be Ts'e dee k'aay and to the 42 right is the start of Evelyn Mountain, and where -- at 43 the -- between Ts'e dee k'aay and Evelyn Mountain is 44 where the line come, the boundary comes down, and goes 45 across Yin Letiit'aay. 46 THE COURT: Now, the large mountain in the centre Ts'e dee k'aay 47 is Hudson Bay Mountain. What number is that, please? 3037 H. Alfred (for Plaintiffs) In chief by Ms. Mandell 1 THE TRANSLATOR: I have a spelling for it. 2 THE COURT: Well, yes, all right. 3 THE TRANSLATOR: Ts'e dee k'aay, T-s-'-e d-e-e k-'-a-a-y. 4 THE COURT: Yes. All right. Thank you. 5 MS. MANDELL: Okay. Thank you. I'd ask that that photo be 6 marked as the next exhibit. 7 THE COURT: Yes. Number 171. 8 THE REGISTRAR: 171. 9 10 (EXHIBIT 171: Tab 6 of red binder of photographs) 11 12 MS. MANDELL: 13 Q If you could turn to tab 7? Do you recognize where 14 this photograph was taken? 15 A Same place. 16 Q It's the same place. And what direction is the camera 17 pointing? 18 A Be north-west. 19 Q And do you -- are there any features of your boundary 20 which can be identified by the photograph? 21 A Indicating almost on the far mountains going down 22 towards the foot of that mountain would be the creek, 23 Sde kep, coming down, and then as you go up to the top 24 of the mountains on the ridge would be the boundary 25 line going towards Caas weniige'tet tay. 26 MS. MANDELL: I'd ask that that be marked as the next exhibit. 27 THE REGISTRAR: 172. 2 8 THE COURT: Yes. 29 THE REGISTRAR: Tab 7. 30 31 (EXHIBIT 172: Tab 7 of red binder of photographs) 32 33 MS. MANDELL: If you could turn to tab 8? 34 THE COURT: Tab 8 I think is already 165. 35 MS. MANDELL: 36 Q It's already Exhibit 165, that's right. 37 Where is this photograph taken? 38 A Looks like it's same place, but just next slash it 39 looks like to me. 40 Q And can you recognize the direction that it's 41 pointing? 42 A South. 43 Q All right. And are there any features of your 44 boundary which can be identified in this photograph? 45 A It looks like the boundary would be on the darker -- 46 on the other side of the darkest section of the timber 47 down below. 3036 H. Alfred (for Plaintiffs) In chief by Ms. Mandell 1 Q All right. 2 A Ts'e dee k'aay would be, which is not on the photo, 3 but would be out on the right-hand side of the 4 picture. 5 MS. MANDELL: That picture has already been marked. 6 MR. PLANT: I don't have -- I'm not sure if I have the spelling 7 for the -- 8 MS. MANDELL: Ts'e dee k'aay? 9 MR. PLANT: Whatever the word was that was just said. 10 MS. MANDELL: 11 Q It's on the map. 12 If you could turn to the next tab, tab 9, can you 13 recognize where this photograph was taken? 14 A Yes. 15 Q And where was that? 16 A Ts'e di sdee. 17 THE COURT: Where please? 18 MS. MANDELL: We're going to need a spelling for that. It's 19 Ts'e di sdee. 2 0 THE COURT: Well, that's Hudson Bay Mountain. 21 MS. MANDELL: No, that's — 22 THE COURT: I was just told it was. 23 MS. MANDELL: This is the head waters of K'aaz kwe, as I 24 understand it. 25 THE TRANSLATOR: 396. 26 MS. MANDELL: 396. 2 7 THE COURT: 396. 2 8 MS. MANDELL: 29 Q And could you direct us from Exhibit 154 to the 30 location where this photograph would be taken? 31 A It would be right in there somewhere. Nee biil 32 dilyee. 33 MS. MANDELL: The witness has pointed to a spot somewhere on 34 the dotted part of the line of number 2. 35 THE COURT: Yes. 36 MS. MANDELL: 37 Q Close to Nee biil dilyee. 38 A Nee biil dilyee. 39 THE TRANSLATOR: 367. 4 0 MS. MANDELL: 41 Q What direction is the camera pointing? 42 A North-east. 43 Q All right. And do you see any portion of your 44 boundary which can be identified through this 45 photograph? 46 A The snow-covered hill you see first back on the photo 47 on the right-hand side is Bec'et K'esdiilih. On top 3039 H. Alfred (for Plaintiffs) In chief by Ms. Mandell 1 of that is a boundary and the other side of that 2 boundary line is -- belongs to Woos territory. 3 MS. MANDELL: Okay. 4 THE TRANSLATOR: 581. 5 THE COURT: I'm sorry? 6 MS. MANDELL: 581. 7 THE COURT: Thank you. 8 MS. MANDELL: And then beyond that is Woos, W-o-o-s. 9 MR. PLANT: My Lord, I don't have 581 on my list. It doesn't go 10 any farther than 533, so I do ask for a spelling. 11 MS. MANDELL: We'll provide a copy of the updated list for my 12 friends. 13 MR. PLANT 14 THE COURT 15 MR. PLANT May I have the spelling now, please 9 B-e-c-'-e-t K-'-e-s-d-i-i-1-i-h. Thank you. 16 MS. MANDELL: If I could have that picture marked as the next 17 exhibit? 18 THE COURT: 173. 19 THE REGISTRAR: 173, tab 9. 20 21 (EXHIBIT 173: Tab 9 of red binder of photographs) 22 23 MS. MANDELL: If you could turn to tab 10 — 24 MR. MACAULAY: Before we get farther, My Lord, insofar as 25 these -- the glossary is concerned, we seem to be 26 behind as well and perhaps the registrar can make 27 arrangements to hand us some copies of up-to-date 28 copies of whatever's been handed up to Your Lordship. 29 THE COURT: I was given the second two pages I think just 30 yesterday. 31 MR. MACAULAY: I wasn't aware of that. 32 THE COURT: Well, maybe three or four. 33 MR. MACAULAY: Three or four pages by the looks of it. 34 THE COURT: Well, I'd be happy to give you my copy which I have 35 just had ring-bound at lunch time. You can have a 36 copy if you wish if that's convenient. 37 MR. MACAULAY: This comes up from time to time. 3 8 THE COURT: Yes. 39 MS. MANDELL: I apologize. It's an oversight on our part. We 40 were hoping to distribute it today and we distributed 41 it yesterday because we understood the problems that 42 had happened. 43 THE COURT: Well, you're going to get it from your friends then 44 Mr. Macaulay. 45 MS. MANDELL: 46 Q Thank you. If we could turn then to tab 10? First of 47 all, can you identify where this photograph was taken? 3040 H. Alfred (for Plaintiffs) In chief by Ms. Mandell 1 A That's the same place Ts'e di sdee. 2 Q All right. Same place as the previous exhibit. And 3 what direction is the camera facing? 4 A East. 5 MS. MANDELL: Okay. And do you recognize those two good 6 looking men in the photograph? 7 MR. PLANT: Well, I concede that for the fellow on the left. 8 MR. RUSH: I'm certainly happy to hear that. From which 9 perspective? 10 THE WITNESS: On the left is Alfred Mitchell. 11 MS. MANDELL: 12 Q Is this area a natural meadow? 13 A Yes. 14 Q Are there any portions of your boundary which you can 15 see identified through the photograph? 16 A This one we identified earlier on the other photo is 17 Bec'et k'esdiilih, and the boundary would be on the 18 other -- the boundary would be on the other side of 19 this ridge you see in the back on top of that ridge. 20 Q And do you know whose territory is to the other side 21 of that boundary? 22 A On the other side of that boundary line would be Woos 23 territory. 24 MS. MANDELL: W-o-o-s. Woos. Thank you. 25 THE COURT: And just for geographic and climatic reasons, in 26 what month would this be taken? 27 THE WITNESS: I believe the party taking the pictures went up 28 there in May or possibly June. 2 9 MS. MANDELL: 30 Q And do you know whether or not the parties in the 31 picture had your consent when they did go up there at 32 that time? 33 A Yes, they notified us. 34 THE COURT: And who's the gentleman on the left in the 35 photograph? 36 MS. MANDELL: That's Alfred Mitchell. 37 THE COURT: Alfred Mitchell. Thank you. 38 THE REGISTRAR: Exhibit 174, My Lord, tab 10. 39 THE COURT: I'm sorry? 40 THE REGISTRAR: Exhibit 174, tab 10. 41 THE COURT: Yes. Thank you. 42 43 (EXHIBIT 174: Tab 10 of red binder of photographs) 44 45 MS. MANDELL: 46 Q Could you then turn to tab 11, please? Can you 47 identify where on the territory this picture was 3041 H. Alfred (for Plaintiffs) In chief by Ms. Mandell 1 taken? 2 A Same place. 3 Q And what direction is the camera facing? 4 A East. You look on the east this way. 5 Q Okay. And are there any features of your boundary or 6 landmarks within your territory which you can see in 7 that picture? 8 A The mountains you see in the back and the mountain or 9 where -- the area where the picture was taken from 10 there is a valley, and between the mountains and where 11 the area where the picture was taken and down below 12 that in between would be the creek Too Coo kwe, and 13 then on towards the left-hand side where the mountain 14 range disappears down into the timber on the other 15 side of that mountain range would be Haneec'et gehw, 16 and the boundary line would be going towards that. 17 MS. MANDELL: Okay. Thank you. There were some names that 18 we'll need some numbers for. 19 THE TRANSLATOR: Haneec'et gehw. 20 THE COURT: Which one was that? There was a valley and a creek 21 and is this the name you're giving me now? 22 MS. MANDELL: Too Coo kwe. 23 THE TRANSLATOR: I'm sorry, Too Coo kwe is 366. 2 4 THE COURT: Thank you. 25 THE TRANSLATOR: Haneec'et gehw is 242. 26 MS. MANDELL: Haneec'et gehw is the mountain and it's also 27 identified in Exhibit 154. 28 THE COURT: That's Debenture Peak it's called on — 29 MS. MANDELL: That's in English. 30 THE COURT: Well, then that picture wouldn't be taken east so 31 much as south-east? 32 MS. MANDELL: South-east, yes. 33 THE COURT: Thank you. 34 MS. MANDELL: Can I have that then marked as the next exhibit? 35 THE REGISTRAR: 175, tab 11. 36 37 (EXHIBIT 175: Tab 11 of red binder of photographs) 38 39 THE COURT: And can you tell me which of those peaks would be 40 242, Debenture Peak, the one on the right or one of 41 the others? 42 THE WITNESS: You can't see Haneec'et gehw on there, but it's on 43 the other side of that mountain. 44 THE COURT: I see. So these mountains are in front of Debenture 45 Peak are they? 46 THE WITNESS: Haneec'et gehw would be on the other side of the 47 mountains that you see. That's where the boundary 3042 H. Alfred (for Plaintiffs) In chief by Ms. Mandell 1 would be. 2 THE COURT: Thank you. 3 MS. MANDELL: Could you then turn to -- did I mark that as an 4 exhibit? 5 THE COURT: Yes, 175. 6 MS. MANDELL: 7 Q And could we then turn to the next tab? Can you 8 identify where within the territory this picture is 9 taken? 10 A Yes. 11 Q Where is it? 12 A Same place looking east -- south-east. 13 Q Looking south-east. And are there any landmarks or 14 boundary points which you can identify from that 15 picture? 16 A The area the side of the mountains at the foot of the 17 mountains looks like the same place where Too Coo kwe 18 comes down alongside the mountain. Right at the 19 middle of the photo where you see sort of a flat place 20 at the end of the mountain looks like Hagez diliih. 21 THE TRANSLATOR: 496. 22 THE COURT: I'm sorry? 23 MS. MANDELL: 496. 2 4 THE COURT: Thank you. 25 MS. MANDELL: 26 Q Is Hagez diliih a landmark or a boundary point? 27 A The boundary line would be behind that. 28 THE COURT: Is that the flat-topped mountain? 29 THE WITNESS: It would be right just below what looks like the 30 flat top and sort of a snowy -- goes into the timber 31 right in the middle of the photo. 32 MS. MANDELL: It looks like a plate that's moving into the 33 timber area. 34 THE TRANSLATOR: Excuse me, Louise. Hagez diliih? Hagez diliih? 35 THE WITNESS: Hagez diliih. 36 THE TRANSLATOR: Hagez diliih, that's not — that's — I gave you 37 the wrong number then. 38 MS. MANDELL: Okay. My Lord, the number you were given for 39 Hagez diliih is wrong. We'll get a spelling for that. 40 THE COURT: Just a moment, please, which number was I given for 41 that? 42 THE TRANSLATOR: 496. 43 MS. MANDELL: 496. 44 THE COURT: Oh, yes, just a moment. 45 THE TRANSLATOR: Okay, the spelling for that is — 46 THE COURT: Just a moment, please. Is it still 496? 47 THE TRANSLATOR: No. 3043 H. Alfred (for Plaintiffs) In chief by Ms. Mandell COURT: No, all right. And the spelling is again, please? TRANSLATOR: H-a-g — COURT: I'm sorry, there's so many coughs at the first letter I'm lost. TRANSLATOR: H-a-g-e-z d-i-1-i-i-h. COURT: Thank you. MANDELL: Yes. Could we have that marked, please? REGISTRAR: That will be number 176, tab 12. (EXHIBIT 176: Tab 12 of red binder of photographs) MANDELL: Q Okay. If you could turn to tab 13, please? Do you -- can you identify where within the territory this photograph was taken? A Yes, same place. Q Okay. And which direction is the camera then pointing? A The camera point east. Q Okay. And can you identify any features, landmarks, or boundaries, which you can see in that photograph? A Right behind Alfred is the place where we were just talking about, Hagez diliih, and on the left-hand side of the photo on the mountain range and behind that would be the mountain Haneec'et gehw. Q Is Haneec'et gehw visible from this photograph? A No. MANDELL: Okay. I'd like then that that be marked as the next exhibit, please? COURT: Again this would be taken looking south-east then? WITNESS: South-east. Yes. Yes. REGISTRAR: Exhibit 177, tab 13. COURT: Thank you. (EXHIBIT 177: Tab 13 of red binder of photographs) MANDELL: I wonder now if Exhibit 84 could be put to the witness? Perhaps I could put my own copy to the witness, possibly it would be faster. This is a -- PLANT: I have the original if that would be of assistance. REGISTRAR: I have it here. MANDELL: The rest of the exhibits could be taken away. I won't be making reference to them again. Excuse me, I'm going to put my exhibit to you because I understand that this one isn't the right one. REGISTRAR: That's marked 84. 1 THE 2 THE 3 THE 4 5 THE 6 THE 7 MS. 8 THE 9 10 11 12 MS. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MS. 29 30 THE 31 THE 32 THE 33 THE 34 35 36 37 MS. 38 39 40 MR. 41 THE 42 MS. 43 44 45 46 47 THE 3044 H. Alfred (for Plaintiffs) In chief by Ms. Mandell 1 MS. MANDELL: 2 Q Have you seen this map before? 3 A Yes. 4 Q And is that the map which you swore when you -- when 5 you swore interrogatories which were then delivered to 6 the provincial government? 7 A Yes. 8 Q Does the boundary line on this map differ from what 9 you know your boundaries to be? 10 A Yes, it's different. 11 Q And what is the major point of difference? 12 A From Wed'zen kwe and where K'aaz kwe enters into it 13 the boundary goes up K'aaz kwe to K'aaz kwe nuk' and 14 then it goes up into Nee biil dilyee, but the way this 15 line is the line is too far north. 16 MS. MANDELL: My Lord, do you need any spellings from that 17 answer? 18 THE COURT: No, I'm fine. Thank you. 19 MS. MANDELL: 20 Q In 1986 when you swore the interrogatory, did you know 21 that the boundary of your territory was K'aaz kwe? 22 A I always knew it was K'aaz kwe since I was very young 23 because my grandmother told me about it and Peter 24 Bazil -- Peter Bazil, my uncle, also instructed me 25 about the boundary lines and they both instructed me 26 not to go beyond that boundary line. 27 Q All right. If in 1986 I had come out with you to your 28 territory, could you have walked me to your northern 29 boundary? 30 A Yes. 31 Q Okay. Can you explain then why the map, which is the 32 interrogatory map, how the mistake was made with 33 respect to the northern boundary? 34 A At the time when I first seen the map the line that I 35 had seen I thought was K'aaz kwe because at the time I 36 didn't have my glasses with me when I first seen the 37 map. 38 Q Thank you very much. I just have a few questions for 39 you, Mr. Alfred, a few more questions about a number 40 of unrelated matters. 41 First of all, could you advise us the date of your 42 father's funeral feast? 43 A I believe it was in September, 1987. 44 Q And do you know whether or not Peter Bazil could read 45 or write English? 46 A No, I never seen him read or write or sign his name. 47 He was much the same -- same way as my mother. 3045 H. Alfred (for Plaintiffs) In chief by Ms. Mandell 1 Q Okay. You mentioned that members of your house would 2 use goat skins sometime for mattresses. Do members of 3 your house today continue to put goat skins to any 4 use? 5 A Yes, some of them use it today. They use it for floor 6 rugs. 7 Q You mentioned in your evidence that you did not get a 8 permit to hunt for deer or for moose. Do you get a 9 permit to go goat hunting from the province? 10 A No. 11 Q When you were giving your evidence regarding the 12 trapping of beaver, you indicated that there were 13 beaver to be trapped in the eastern portion of your 14 territory along Two Bridge Lake and the creek which 15 flows out from it. Do you recall having given that 16 evidence? 17 A Yes. My father and mother and Cecil had gone up into 18 that area and they hunted and trapped beaver up there. 19 I forget how long ago that was. 20 Q Okay. And have you personally ever been successful in 21 trapping a beaver up there? 22 A No, I've never hunted beaver up there. I've gone up 23 into that area twice, but I've never gone that far. 24 Q Okay. To your knowledge are there any resources 25 within your territory, any animals particularly, which 26 once lived in your territory, but today no longer can 27 be found there? 28 A Well, in the last while moose which we used to hunt 29 and marten are -- haven't been as plentiful as they 30 used to be. 31 Q Are there any species of animals which used to be in 32 your territory, but no longer are there? 33 A There was when mother was trapping. He used to catch 34 lots of lynx before the clear cutting, but now there's 35 none to be had at all. 36 Q And were caribou once in your territory? 37 A My uncle had told me one time there was caribou within 38 the territory, but there's none to be seen today, and 39 a long time ago, that is why they had a fence and 40 snares set up at the place called Nee biil dilyee. 41 That is the name of that place where they used to 42 snare and catch caribou there. 43 Q All right. Do you know whether or not your ancestors 44 made use of the caribou? 45 A Yes, they utilize the caribou to the fullest. They 46 used it -- they never wasted any parts of it. The -- 47 before the white man came they made clothing out of 3046 H. Alfred (for Plaintiffs) In chief by Ms. Mandell 1 the hides, moccasins, and the meat they also -- they 2 smoked it and they also utilize that. 3 Q And how do you know this information? 4 A Because my grandmother raised me and who told me all 5 about this and also my uncle. 6 Q You told us yesterday that when you were explaining 7 the trap, the lines where you trap from Exhibit 164, 8 that you cut line number four in the early 70's. Do 9 you remember telling us that? 10 A Yes. 11 Q And that was the -- that was the part below the slash 12 that you cut in the early 70's, was that your 13 evidence? 14 A Yes. 15 Q And did you also trap marten on that line when you cut 16 it? 17 A Yes. 18 Q And you were also telling us about your plans to 19 connect your trap lines in the eastern portion of your 20 territory. Do you recall that? 21 A Yes. 22 Q And the -- you were intending to connect the line 23 around Two Bridge Lake? 24 A Yes. 25 Q Do you have any plans with respect to the construction 26 of a cabin where the lines connect? 27 A Yes, I made plans. I have made plans for the future 28 to construct a cabin at Tedeltl'ets. 2 9 Q And where do you intend to get the wood from to 30 construct this cabin? 31 A I would use the trees from the area right around where 32 I'm going to build a cabin. 33 Q Can you identify what -- how you as Wah tah k'eght 34 sees the value to you and your house of the trees 35 within your territory? 36 A Yes. Our ancestors have always utilized the trees 37 within the territory for building shelters and also 38 for setting traps amongst the forest and then them 39 forests have now been depleted. 40 Q How would you as Wah tah k'eght describe your 41 relationship to your territory? 42 A I feel same way about the territory as my grandparents 43 and my uncles felt towards the territory. And the way 44 they took care of it, I myself as Wah tah k'eght will 45 also feel the same way about it and will take care of 46 the territory as they have done before me. 47 Q And why are you taking care of the territory? 3047 H. Alfred (for Plaintiffs) In chief by Ms. Mandell 1 A I am taking care of the territory, I'm taking over 2 because my uncles have passed on and I also as Wah tah 3 k'eght am the head of the -- head of my people and 4 that is one of the other reasons I take care of the 5 territory now. 6 THE COURT: Have you something you want to finish, Miss Mandell? 7 MS. MANDELL: We can adjourn. 8 THE COURT: All right. Thank you. 9 THE REGISTRAR: Order in court. Court will adjourn. 10 11 (PROCEEDINGS ADJOURNED FOR LUNCH RECESS) 12 13 I hereby certify the foregoing to 14 be a true and accurate transcript 15 of the proceedings herein to the 16 best of my skill and ability. 17 18 19 Tanita S. French 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 3046 H. Alfred (for Plaintiffs) Cross-exam by Mr. Plant 1 (PROCEEDINGS RECONVENED AT 2:00 p.m.) 2 3 THE REGISTRAR: Order in court. Delgamuukw versus Her Majesty 4 the Queen, at bar. 5 THE COURT: Ms. Mandell. 6 MS. MANDELL: My Lord, I have no further questions of this 7 witness. 8 THE COURT: All right, thank you. Mr. Plant, you are next. 9 MR. PLANT: This time, yes, My Lord. 10 11 CROSS-EXAMINATION BY MR. PLANT: 12 Q Mr. Alfred, I'm going to put before you a document 13 which is an affidavit dated July 31, 1986, the date is 14 on the second page. Could you please confirm that 15 that is your signature on the second page of that 16 document? 17 A Yes. 18 Q I'm sorry, yes? 19 A Yes. 20 Q And do you recognize the document as the affidavit 21 which you swore on that day which had the answers to 22 your interrogatories attached to it? 23 A Yes. 24 Q And paragraph one of the affidavit, you say, and I 25 quote: 26 27 "I am one of the Plaintiffs in this action and 28 have received Interrogatories served on me by the 29 Defendant" 30 31 That statement was true at the time that you made it? 32 A Yes. 33 THE COURT: I take it, Mr. Plant, I don't have this affidavit, 34 do I? 35 MR. PLANT: No, My Lord. 36 THE COURT: All right, thank you. 37 MR. PLANT: 38 Q Paragraph number two reads, and I quote: 39 40 "I have attached hereto and marked Exhibit "A" to 41 this my Affidavit, my answers to those 42 Interrogatories. Those answers are provided in 43 the same numerical order as the Interrogatories." 44 45 That statement was true at the time you made it? 46 A Yes. 47 Q In paragraph number three you say, and I quote: 3049 H. Alfred (for Plaintiffs) Cross-exam by Mr. Plant 1 "The answers that are attached as Exhibit "A" to 2 this my Affidavit are true to the best of my 3 knowledge except where stated to be upon 4 information and belief and whereso stated I verily 5 believe them to be true." 6 7 And that answer was true at the time that you gave it, 8 or that statement was true at the time that you made 9 it? 10 A Some -- I was just wondering if you mean when you 11 talking about information, some time has been given to 12 consultation. 13 Q Well Mr. Alfred, these are words that either you used 14 or someone used on your behalf. When you swore this 15 affidavit in July 1986, were the answers that are 16 attached as Exhibit A to it, true to the best of your 17 knowledge except where in the answers it says that you 18 obtained your information from someone else, and to 19 that extent, you are relying on the information of 20 others; is that correct? 21 A Yes. 22 Q And if you turn the page over, Mr. Alfred, you'll see 23 the beginning of Exhibit A which has the questions and 24 the answers; is that correct? 25 A Yes. 26 Q Mr. Alfred, when you swore this affidavit containing 27 these answers on the 31st of July, 1986, were you able 28 to read them in English or did you require an 29 interpreter? 30 A Yes. I had an interpreter at the time when the 31 answers were written down. 32 Q Did the interpreter assist you in understanding the 33 questions and your answers? 34 A Yes. 35 Q Was that interpreter -- who was that interpreter, 36 please? 37 A George Holland. 38 Q The man who is sitting beside you today? 39 A Yes. 40 Q Could you turn to page ten of Exhibit A and in 41 particular question 58. Do you have that? 42 A Yes. 43 Q Question 58 is at the bottom of page ten and it reads: 44 45 "Does your House claim ownership of or 46 jurisdiction over any particular territory?" 47 3050 H. Alfred (for Plaintiffs) Cross-exam by Mr. Plant 1 The answer which is at the top of page 11 is, "Yes." 2 Is that answer correct? 3 A Yes. 4 Q And when you answer that question, did you understand 5 the word "House" -- well let me ask you. What did you 6 understand was meant by the word "House"? 7 A Yes. I -- what I understood there was the Laksilyu 8 had different houses, much the same as the Gitdumden 9 had the different houses in the clan. 10 Q And you are the chief of one of the houses of the 11 Laksilyu? 12 A Yes. 13 Q That house is sometimes called the "House on flat 14 rock"? 15 A Yes. 16 Q And when you were asked in question 58: "Does your 17 House claim ownership of or jurisdiction over any 18 particular territory," did you understand that to be a 19 reference to the house on a flat rock? 20 A Yes. 21 Q Is there a word in Wet'suwet'en for territory, Mr. 22 Alfred? 23 A Yes. Yintah. 24 Q May I have the spelling of that. 25 THE TRANSLATOR: Four hundred and seventy-six. 2 6 MR. PLANT: 27 Q Question 59 of the interrogatories, 59 (c) which is on 28 page 11, Mr. Alfred, you are asked: 29 30 "If so, what are the boundaries of your House's 31 territory?" 32 33 Do you see that question? 34 A Yes. 35 Q And the answer that you gave was: 36 37 "See Schedule "B" attached to these answers." 38 39 Did you see that? 40 A Yes. 41 Q And Schedule B to Exhibit A to your affidavit of July 42 31, 1986, was this map; is that correct? 43 THE COURT: Exhibit 84? 4 4 MR. PLANT: 45 Q Yes, My Lord. 46 A Yes. 47 Q The map that I have put before Mr. Alfred is the 3051 H. Alfred (for Plaintiffs) Cross-exam by Mr. Plant 1 original of Exhibit 84 as it was attached to the 2 interrogatories delivered to us. Now, as far as you 3 were concerned when you answered the interrogatories 4 on July 31, 1986, this was intended to be a map of the 5 boundaries of the territory of Wah Tah K'eght, 6 correct? 7 A When I first seen this map I thought it to be the 8 boundaries, but after studying it for some time, I 9 realized that they weren't the proper boundaries. 10 Q Did you give that study before or after you swore the 11 affidavit in answer to your interrogatories? 12 A I didn't see that until after I had signed the 13 interrogatories. 14 Q And if you had been wearing your glasses on the 31st 15 of July 1986 -- well let me ask you this, Mr. Alfred: 16 With your glasses on today, can you identify the 17 location of the creek known as K'aaz Kwe on this map, 18 Exhibit 84? 19 A K'aaz Kwe is right in here. 20 Q So you are pointing at the creek which has the 21 printing G-'-A-S-K-W-U-H, you see that? 22 A Yes. 23 Q Could you identify on this map, or locate the location 24 of Toboggan Lake? 25 A Toboggan Lake would be located here somewhere. I 26 can't see the lake. 27 Q Let me see if I could just assist you by asking you 28 if -- by directing your attention to a place that has 29 the word T-A-B-E-G-H-T-E-Y printed beside it, would 30 that be in the approximate location of Toboggan Lake? 31 A Yes. 32 Q Can you recognize where Porphrey Creek is, also 33 sometimes called Sde Kep? 34 A Sde Kep is back in here somewhere, that boundary line. 35 Q So you are now pointing in the general area of the 36 heavy black line in the upper left-hand corner which 37 has above it S-T-E-Y, G-Y-U-P; is that correct? 38 A Yes. 39 Q With your glasses on -- well perhaps I'll ask this 40 question: With or without your glasses on, would you 41 be able to read those two words S-T-E-Y, G-Y-U-P as 42 Sde Kep? 43 A You want me to take my glasses off and look at it for 44 you? 45 Q No. My concern is whether you feel comfortable 46 reading words that are printed on a map? 47 A I can see them with my glasses on but without them I 3052 H. Alfred (for Plaintiffs) Cross-exam by Mr. Plant 1 can't see. 2 Q Thank you. Could you find for me on that map the 3 location of Blunt Creek? 4 A Blunt Creek, that's K'aaz Kwe. 5 Q Yes. You are pointing at K'aaz Kwe. Is that the same 6 place in your mind as Blunt Creek? 7 A The white man might call it Blunt Creek but in 8 Wet'suwet'en I just know it as K'aaz Kwe. 9 Q Have you ever heard of a creek called X'aaz Kwe, and I 10 think the spelling for it is X-A-A-Z, K-W-E? 11 THE TRANSLATOR: X-'-A. 12 MR. PLANT: X-'-A? 13 THE TRANSLATOR: Yes. 14 MR. PLANT: Perhaps, Mr. Mitchell, you could assist in my 15 undoubtedly defective pronunciation. 16 THE TRANSLATOR: X'aaz Kwe? 17 A No, I don't know no X'aaz Kwe. 18 MR. PLANT: 19 Q In July 1986, was there doubt -- any doubt in your 20 mind about where the boundaries of the territory of 21 Wah Tah K'eght were? 22 A There is no doubt in my mind because even as a young 23 child I travel in there with my grandmother trapping, 24 and I was informed and instructed not to go beyond 25 K'aaz Kwe, because that is the boundary line. 26 Q But K'aaz Kwe is not shown as the boundary on this 27 map, correct? 2 8 A No. 29 Q It's not shown. Some other creek is shown as the 30 boundary; is that correct, the northern boundary on 31 the east side of the Bulkley? 32 A Where you see the boundary on this map here now is a 33 creek coming down north of K'aaz Kwe. I'm not 34 familiar with that creek, but that's where that 35 boundary is coming down, the creek called Kwun Kwe. 36 Q K-W-U-N, K-W-E? Is that creek sometimes known as Kwun 37 Creek to your knowledge? 38 A All I knows is Kwun Kwe. Nobody has ever called it 39 Kwun Creek to my knowledge. 40 Q Thank you. When was it that your study of this map 41 revealed to you the error in the boundary that you 42 have described? 43 A It was about one week ago when I seen this map and 44 that's when I noticed that the boundary was not in the 45 right place, and that's when I started asking 46 questions about it. 47 Q Do you have any idea how it was that the boundary line 3053 H. Alfred (for Plaintiffs) Cross-exam by Mr. Plant 1 came to be in the incorrect place? 2 A I don't know how it came about, because I don't make 3 maps. 4 Q And if in July 1986 someone had asked you where the 5 northern boundary was of your territory on the west 6 side of the Bulkley, you would have told them that it 7 was K'aaz Kwe, correct? 8 A Yes. 9 Q Has there been any change in the boundary of the 10 territory of Wah Tah K'eght as you know it, since July 11 31st, 1986? 12 A Ever since information regarding the boundaries was 13 given to me by my grandmother and my uncles, and the 14 landmarks have never changed that I know of. 15 Q When you were answering the questions of Ms. Mandell, 16 you've told us about a place which Peter Bazil 17 identified as part of the boundary on the -- I think 18 on the north, I'm not sure which side of the Bulkley. 19 My spelling of that place from the transcript is 20 C-'-E-L-K-'-I-I-G-N-T-S-'-E-T-L, and I would like to 21 know where that place is? 22 MS. MANDELL: Do you have a copy of that? 23 MR. PLANT: I was looking forward to having someone assist with 24 the pronunciation. 25 THE TRANSLATOR: C'elk'iignts ' etl. 2 6 MR. PLANT: 27 Q Do you recall hearing that or giving us that name a 28 few days ago, Mr. Alfred? I guess it was a week 29 before last, actually? 30 A Yes. 31 Q And where is that place, please? 32 A C'elk'iignts'etl be right in there somewhere. 33 Q Is it on the boundary? 34 A That's -- no, no, no. The boundary is way back, Caas 35 weniige'tet tay. C'elkiignts'etl is the mountain 36 between the boundary line and Moricetown. 37 Q Is it a -- is it a mountain or a hill? 38 A A mountain. 39 MR. PLANT: I have the spelling of those places but I don't know 40 if Your Lordship -- 41 THE COURT: No, I don't need them for my notes. 42 MR. PLANT: 43 Q The other place, Caas weniige'tet tay, I took, Mr. 44 Alfred, to be describing the mountains which were the 45 boundary, and that word is printed along the western 46 part of the boundary as shown on Exhibit 164. So the 47 other place, C'elk'iignts'etl, which I would have to 3054 H. Alfred (for Plaintiffs) Cross-exam by Mr. Plant 1 2 3 4 THE TRANS 5 A 6 7 MR. PLANT 8 Q 9 10 A 11 Q 12 13 14 15 16 A 17 Q 18 19 20 A 21 Q 22 23 24 A 25 Q 26 27 28 THE COURT 29 MR. PLANT 30 THE COURT 31 32 MR. PLANT 33 THE COURT 34 MR. PLANT 35 Q 36 37 38 39 40 41 42 43 A 44 Q 45 A 46 Q 47 ask Mr. Mitchell or Mr. Holland to pronounce again, is a mountain in between the mountain on the boundary in Moricetown? LATOR: C'elk'iignts'etl is 518, My Lord. C'elk'iignts'etl would be almost half-way between Caas weniige'tet tay and Moricetown Mr. Alfred, did you attend a feast in Moricetown called the All Clan Feast in April 1986? Yes. And as I understand it, the purpose of that feast was -- arose out of the fact that the Carrier Sekani Tribal Council had made a claim which overlapped the territory claimed or owned by some of the chiefs of the Wet'suwet'en; is that correct? Yes. And chiefs made speeches at that feast talking about the boundaries of their territories; isn't that correct? Yes. And the Wet'suwet'en chiefs were trying to persuade the Carrier Sekani chiefs that the Carrier Sekani boundary was in the wrong place; is that correct? Yes. I would like to show you another map, Mr. Alfred, it's Exhibit 101. First I'll take this map away from you. My Lord, I have an extra copy of that. Is this the map that was on the wall at that feast? The feast hall in Moricetown. Either on the wall of the feast hall or the wall in the gentleman's office that I heard about. Well at this point I can't remember which it was. All right. Mr. Alfred, I don't need to refer you to the top half of that map, so I might be able to make it more convenient. I don't need the bottom half so much either. Let's start here. This map is entitled "Wet'suwet'en Territories Affected by Carrier Sekani." Those words are printed over on the right-hand side. Do you see that, Mr. Alfred? Yes. Have you seen that map before? Yes. And from my reading of the map -- well let me ask you this: From your reading of the map, would you agree 3055 H. Alfred (for Plaintiffs) Cross-exam by Mr. Plant 1 2 3 4 A 5 6 Q 7 A 8 Q 9 10 11 A 12 Q 13 14 15 16 17 18 19 A 20 Q 21 THE COURT 22 MR. PLANT 23 24 25 THE COURT 26 MR. PLANT 27 28 THE COURT 29 MR. PLANT 30 31 THE COURT 32 MR. PLANT 33 THE COURT 34 MR. PLANT 35 THE COURT 36 MR. PLANT 37 Q 38 39 40 THE INTER 41 42 MR. PLANT 43 Q 44 45 46 A 47 that the territory of Wah Tah K'eght as shown on that map is one of the territories affected by the Carrier Sekani overlap? That line is out of my territory. That big dark line you are talking about? Yes. It's off my territory. The line that shows the Wah Tah K'eght territory on this map does not follow K'aaz Kwe, do you agree with me? K'aaz Kwe is right in here. Yes. And my suggestion to you -- suggestion to you is that the line of Wah Tah K'eght's territory is north of K'aaz Kwe, and it's this somewhat darker line that proceeds around a corner up to a little dot that says T-S-I-N, new word, T-A-A-L, Tsin Teel. That's the boundary of the territory of Wah Tah K'eght as shown on this map; do you agree with me? That's not right line. So this map is wrong also? Where is Tsin Teel, Mr. Plant, please? An inch or two north of Moricetown there is a dark line I read as being the external boundary on the north. Yes. And if you follow that line around about an inch or two, it takes a jog to the north. Yes. And there is a dot and two small words printed there. What do you say those words are? Well I say it's T-S-I-N. I see, yes. T-A-A-L. Yes, all right. I'm not sure if we got the answer to the last question. The map -- this map is also wrong, it doesn't show Wah Tah K'eght's territory correctly? 3RETER: Before you interrupted my interpretation, he said this map is not right. Oh. Thank you, Mr. Holland, Did you have occasion to look at this map prior to the overlap feast in April 1986? Yes. When there was that meeting at that time, it was displayed on the wall, and I seen it from a distance 3056 H. Alfred (for Plaintiffs) Cross-exam by Mr. Plant 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 at that time. Q I take it, then, that you did not have -- you did not look at it closely to see if it was correct or not? A I just saw -- looked at the outside overlap lines. It didn't interfere with my territory so I didn't bother with it. Q So I think, as I understand your evidence, you looked at it and didn't see any interference with the territory of Wah Tah K'eght, or to put it another way, the Carrier Sekani overlap did not touch your territory so far as you could see from this map? A When I seen overlap boundary lines at that time, them lines were -- were not overlapping. It seemed like it wasn't overlapping my territory, so I -- it was some distance away. Q Before we leave this map, Mr. Alfred, could you look at the territory that's on the right-hand side of the heavy black line near your territory where the word Woos, W-O-S, appears. Do you see where that word appears? A Yes. Q So far as you can tell, is that a correct depiction of the territory which is owned by Chief Woos? A From what I can see on this map now, the Woos territory seems to be too far south, from looking at it from our territory that goes up K'aaz Kwe nuk. And when you go on the boundary line at Nee biil dilyee, and you are looking east, it would be -- you would be looking over the hill and then you would be looking at Woos' territory Q Which is further north, the territory of Woos, than is drawn on this map? A Woos' territory would be a little further north and it would be looking close to Nee biil dilyee, where the boundary would be. Q The place that you call Nee biil dilyee, is in the approximate area of the headwaters of K'aaz Kwe? A No. Nee biil dilyee would be the area where K'aaz Kwe starts from the -- from a meadow there. Q Thank you. THE COURT: Are you saying that Nee biil dilyee is the headwaters of K'aaz Kwe or are you saying it's near the headwaters? A It's -- Nee biil dilyee is a meadow there and that's where the creek starts from and that's the same area where they set snares for caribou. THE COURT: Is that where the pictures were taken that we saw 3057 H. Alfred (for Plaintiffs) Cross-exam by Mr. Plant 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 THE COURT A THE COURT MR. PLANT Q MS. this morning? It's in the same area but down further. All right. And it's near the headwaters of K'aaz Kwe? Yes, that's right. Thank you. Mr. Alfred, after the All Clan Feast in 1986, there were some other meetings with the Carrier Sekani to discuss the overlap; is that correct? A Are you talking about the meeting maybe they had later on in Burns Lake? Q Yes. I don't -- I don't want to ask you anything about that meeting except that -- well perhaps I'll ask you this: Were you there at that meeting in Burns Lake? A Yes. Q Why were you there? A Any time when somebody is talking about territories, all the chiefs go there to listen and what's being said. Q Eventually there was a change made to the external boundary of the Wet'suwet'en territory; is that correct. MANDELL: Excuse me, before that question is answered, I wonder if my friend could clarify is he speaking about a change to a map, a change to the people's perceptions? I don't know what he is really referring to, I don't know how the witness can. Mr. Plant? THE COURT MR. PLANT Q A Q A A I'm asking about whether there was a change in the boundary of the territory as depicted on the Wet'suwet'en maps? At the time -- or at that meeting discussion on those overlap, and whether -- whether the maps were redone at that time I don't know anything about that. Was the boundary itself changed as a result of the discussions? Yes. There was discussions on the overlap and as a result of his discussions there was further plans to have other follow-up meetings, but I didn't go to them ones . Do you know if, as a result of those follow-up meetings, there was any change made to the external boundary of the Wet'suwet'en territory? Up till now I don't have any knowledge as to what 3056 H. Alfred (for Plaintiffs) Cross-exam by Mr. Plant 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 THE MR. THE THE MR. really took place, because the concerns were with Oonistod'en. COURT: I'm sorry, concerns were about? PLANT: I didn't hear it either. A With -- the territories of the Oonistod'en people who were affected by the overlap. May I have that one please, Mr. Mitchell. Oonistod'en, O-O-N-I-S-T-O-D-'-E-N. COURT TRANSLATOR PLANT: Q Are they Wet'suwet'en THE MR. A Q COURT: A PLANT: Q A THE COURT MR. THE PLANT COURT MR. PLANT THE COURT MR. PLANT: Q Who are the Oonistod'en people? people, Mr. Alfred? The Oonistod'en are Wet'suwet'en people. They call Oonistod'en because they are people that have territories way out. And — Sorry, way out in the west or the east? Yes, that would be the territories would be towards the west. So because their territories were being discussed, you didn't consider it important to go to those meetings? Yes. As chiefs of some Wet'suwet'en people, we have some concerns as to, so we are witnesses as to what happens, and we -- we as witnesses weigh the differences and advise them as such, because they themselves know their own territories and we act only as witnesses. They known their own territories like I know my own territory, I know my own boundaries. Mr. Plant, I intended really to ask the witness if he meant way out to the east and I said west by mistake and I hope I haven't led the witness. I was going to ask the witness -- If you look at the area overlap it is both east and west. Yes. And I may be under a misapprehension so I wondered whether territories way out simply meant territories away from Moricetown, but -- I want you to ask him what he means about when he says "way out", when he talks about the Oonistod'en people. Mr. Alfred, you -- you told us that -- you told us about the Oonistod'en people whose territories were affected by the Carrier Sekani overlap. And I think you said that those people were people with territories "way out". What does that mean, "way out", does it mean east or west or does it have a 3059 H. Alfred (for Plaintiffs) Cross-exam by Mr. Plant 1 particular meaning? 2 A Yes. That name Oonistod'en derives from they travel a 3 long ways out to their territories. They travel 4 towards Houston and then they travel south from there 5 to get to the territories. 6 Q And those are the people who are the Oonistod'en? 7 A Yes. 8 MR. PLANT: Would it be convenient, My Lord? 9 THE COURT: Yes. We'll take the afternoon adjournment. 10 THE REGISTRAR: Order in court. Court stands adjourned for a 11 short recess. 12 13 (PROCEEDINGS ADJOURNED AT 3:10 p.m.) 14 15 I hereby certify the foregoing to be 16 a true and accurate transcript of the 17 proceedings herein transcribed to the 18 best of my skill and ability. 19 20 21 22 23 24 Toni Kerekes, 25 O.R., R.P.R. 26 United Reporting Service Ltd. 27 (PROCEEDINGS CONTINUED PURSUANT TO AFTERNOON BREAK) 28 29 THE REGISTRAR: Order in court. Ready to proceed, My Lord. 30 THE COURT: Mr. Plant? 31 MR. PLANT: 32 Q Mr. Alfred, I'm going to show you Exhibit 101 again 33 and would you agree with me, Mr. Alfred, that this map 34 shows an overlap between the territory of Wah tah 35 k'eght and territory claimed by the Carrier-Sekani. 36 A It don't seem like it because Tedeltl'ets is way out 37 and that overlap line is way back from Haneec'et gehw. 38 Q This map shows the eastern boundary of the territory 39 of Wah tah k'eght as far east as the Fulton River and 40 the lakes along the Fulton River, do you agree with 41 me? 42 A No. 43 Q You don't agree that the map shows that? I'm not 44 asking you where you think your territory is, Mr. 45 Alfred, I'm asking you what you think the map shows? 46 A No, it -- the boundary doesn't go through that area at 47 all. 3060 H. Alfred (for Plaintiffs) Cross-exam by Mr. Plant 1 Q Well, let's look at the map here. Beside the word 2 "Woos", Mr. Alfred, there's a word "Hloh Wa Nii", 3 H-l-o-h W-a- N-i-i. Do you see that word where I'm 4 pointing it to you? You're nodding so I think you 5 mean yes. That's Chapman Lake isn't it? 6 A That could be the same Chapman Lake, but my boundary 7 does not go that far back. 8 Q Would you agree with me that there's a heavy black 9 line along the left shore of Chapman Lake on this map? 10 You see this heavy black line here? 11 A That black line, as you can see, goes all the way up 12 north and that's not my territory. My territory is 13 where -- indicating with the finger is where. 14 Q So you're indicating the area -- sorry, to interrupt, 15 you're indicating the area to the left of the very 16 wide black line in the general area of where the word 17 "Wah tah k'eght" is, just so that there's something on 18 the record about where you were pointing? 19 A It would be inside the broad dark line. Outside -- 20 outside of that broad dark line is not my territory. 21 Q You told me a few minutes ago -- you were pointing at 22 the dark not so wide line that goes all the way up, as 23 you said. What did you think that that line was 24 showing when you first saw this map? 25 A I wasn't looking at that long dark line, I was only 26 looking at the territory that belonged to me. 27 Q Well, Mr. Alfred, that long dark line is the external 28 boundary of the territory which this map-maker thought 29 belonged to the Wet'suwet'en and the Gitksan; isn't 30 that correct? That's your understanding of what it 31 represented? 32 A That -- that narrow dark line must have been thought 33 to be the external boundary line for the G'itnee and 34 Wet'suwet'en people and I didn't pay much attention to 35 it because the Wah tah k'eght territory was inside 36 that. 37 Q Is there a Wet'suwet'en chief who has territory 38 between the territory of Wah tah k'eght and the 39 external boundary? 40 A Yes, that's -- it could be so because Woos has a 41 territory between that and my territory. 42 Q But that territory of Woos that you've told us about, 43 that's not drawn on this map is it? 44 A Woos' territory is shown on there, but it's too far 45 south. 46 Q In the area where you think Woos has territory though 47 the map doesn't show any territory belonging to Woos, 3061 H. Alfred (for Plaintiffs) Cross-exam by Mr. Plant 1 the map shows territory belonging to Wah tah k'eght; 2 isn't that correct? 3 A Yes, I just noticed that the Woos east boundary is 4 further south than it should be because Woos' east 5 boundary is east of Nee biil dilyee, the head waters 6 of K'aaz kwe. 7 MR. PLANT: Mr. Alfred, the area on Exhibit 101 that we've been 8 talking about which is east of the wide dark line and 9 includes this territory of Woos here, the external 10 boundary of the Gitksan/Wet'suwet'en claim has been 11 changed to follow this thick black line; isn't that 12 correct? 13 MS. MANDELL: Again I'd ask is that changed on a map or changed 14 in the consciousness of the chiefs or changed 15 officially? What is the question? 16 MR. PLANT: 17 Q I thought the question was relatively straightforward. 18 The external -- well, Mr. Alfred, the external 19 boundary of the Gitksan/Wet'suwet'en chiefs as drawn 2 0 on maps has been changed and the new maps, the maps 21 drawn nowadays, would show the external boundary 22 following this line here which is the wide line; is 23 that correct? 24 A At this point I don't know exactly what you're talking 25 about. You rather confused me. 26 Q Well, that's because your counsel and I have had a 27 discussion. I think it's because -- well, let's see 28 if I can try it this way. 29 You told me that this dark line here, the thin 30 very dark line, was the external boundary of the 31 Gitksan/Wet'suwet'en territory, at least according to 32 this map, whether it's right or wrong, that's the way 33 it's shown on this map; correct? 34 A That narrow dark line would depict the external lines 35 even though it's not right, but that's what it 36 probably depicts is the external lines. 37 Q Should the external line be where the wide line is? 38 A That wide dark line don't seem to be right either and 39 I don't know why. There should be two lines along 40 there. 41 Q Do you know where the external boundary should be in 42 this area of the map, Mr. Alfred? 43 A The people from the east would have territories and I 44 believe the lines should go on the height of land west 45 of Chapman Lake. 46 Q Does the boundary, the external boundary, follow the 47 Fulton River as it flows out of Chapman Lake? 3062 H. Alfred (for Plaintiffs) Cross-exam by Mr. Plant 1 A 2 THE COURT 3 4 MR. PLANT 5 THE COURT 6 7 MR. PLANT 8 Q 9 10 11 A 12 13 14 15 Q 16 17 A 18 19 MR. PLANT 20 21 22 23 24 THE COURT 25 26 MR. PLANT 27 THE COURT 28 29 MR. PLANT 30 Q 31 32 33 34 A 35 36 37 38 39 40 THE COURT 41 42 43 44 MR. PLANT 45 THE TRANS 46 MR. PLANT 47 I don't know that boundary in that area at all. : The height of land would hardly follow a river would it? : I beg your pardon? : The height of land would hardly follow a river would it? No, and I'm just going to ask, do you know where the line goes after it follows the height of land west of Chapman Lake? See all that area is where the boundaries are, outside of that I don't know where the lines would go. In some areas where I'm not familiar with I would ask my mother and them to clarify that for me. So you don't know where the boundary goes from the height of land west of Chapman Lake? I don't know exactly where the boundary line would go through in that area. : Those are all the questions I have on this map, Mr. Alfred. Thank you. I'd now ask you to look at trial Exhibit 5 for identification. I'm not sure how I can do this conveniently, My Lord. : That's all right. You go ahead. I'll come over there if I need to. : Excuse me? : You go right ahead. to. I'll come over there if I need Okay. Well, Mr. Alfred, I'll hold it. Have you seen this map before, and feel free to inspect it closely if you'd like to? Take all the time you wish to have a look at it. K'aaz kwe right in here is my territory, that's all I know, is this part from this river to K'aaz kwe, K'aaz kwe nuk', Nee biil dilyee to Tedeltl'ets, and back this way to C'ede'i kwe to Wed'zen kwe and from Wed'zen kwe to Sde kep. I don't know any more than that, but the Woos' territory was -- : Well, he should stop now and let madam reporter catch up with some of those names. You were going to start next about Woos's territory. Let's clean up this area first. : Do you have the names madam reporter that we're -- LATOR: No. : I think that the witness was describing an arc that began, roughly speaking, with K'aaz kwe and then the 3063 H. Alfred (for Plaintiffs) Cross-exam by Mr. Plant 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. PLANT THE MR. THE MR. THE MR. THE MS. COURT PLANT term Nee biil dilyee was used. As he rounded the corner of the arc, he, I think, used the term Haneec'et gehw. Well, I'm sorry, Mr. Plant, I wonder if counsel could agree that the area shown on trial Exhibit 5 for identification as the territory of the witness is more or less as shown in Exhibit 84? I can't agree with that, My Lord, because there's been substantial change to the eastern boundary. Oh, yes. What I could agree to is that the depiction on trial 5 is not consistent with Exhibit 164. that's right. It's substantially larger. Exhibit COURT: Well, PLANT: Yes. COURT: Yes. PLANT: It's smaller than the territory on Exhibit 84. COURT: Yes. MANDELL: My Lord, I might also say that the question put to the witness was "Have you seen this map before?", and he hasn't answered that question yet, so maybe we could find out whether or not we're really meant to be asking questions from this map. MR. PLANT: Well, I don't need an answer to that question. It's clear from the witness' evidence in relation to the map that he was able to recognize some of the features on it. THE COURT: I have no doubt about that either. As soon as he fixed himself on the map, which took a moment only, he was able to draw his finger to what the boundary of his property was, which appeared to me to conform more or less to Exhibit 164. MANDELL: Yes, that's correct, yes. MS. MR. THE MR. PLANT COURT PLANT Q A Q A That's my understanding too. Yes. I saw that with my own eyes. I'm going to move onto another subject, Mr. Alfred, for a few minutes, it's the subject of goat hunting, and I would ask that a copy of Exhibit 164 be put before the witness. In the upper left-hand corner of the -- of this map there is an area with a blue circle around it with the word "goats" in it. My understanding, Mr. Alfred, is that that's an area where you hunted mountain goats with Dan Michell, Cecil Alfred, and your son Lester; is that correct? That's right. And when was that hunting trip, please? It would be early 80's. 3064 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 H. Alfred (for Plaintiffs) Cross-exam by Mr. Plant Q Is that the only time that you've ever gone to hunt goats in that area? A Yes. MR. PLANT: When you went to that area on that occasion did you comply with the provincial government regulations affecting goat hunting? MS. MANDELL: Well, perhaps my friend could ask what regulations it is that he's referring to? MR. PLANT: I'm referring to the regulations affecting goat hunting. MS. MANDELL I don't know what they are. I don't know how the witness will. MR. PLANT: Well, I take it my friend's objecting to the question. MS. MANDELL: I just ask that my friend be precise and put to him what regulation he's referring to. THE COURT: Well, perhaps you could merely put to the witness "Did you obtain a licence for -- " MR PLANT: Q A I'll certainly try, but I may not ask that question yet, My Lord. Mr. Alfred, are you aware of the fact that the provincial government regulates mountain goat hunting? I heard of some kind of regulation regarding closures, but that area there is within my territory and that is why I go hunting there. Q So when you go hunting, when you went hunting, did you check and see if it was open season for mountain goat hunting at the time? A I never asked about any regulations, but one of the reasons we went up there to hunt goat is to get meat for a feast that was taking place for my brother. Q And did you get a permit to hunt goat from the game warden's office when you went on that trip with Dan Michell? A No. Q Did you take any parts of the animals that you caught to the game warden for inspection? A No. Q Are you aware of the fact that the reason for the provincial government regulations is to try and keep track of how many animals are killed? A I don't know whether they -- the process of the counting, but I also have the same rule that I would like to know how much game is taken out of my territory. Q But you don't know do you? 3065 H. Alfred (for Plaintiffs) Cross-exam by Mr. Plant 1 A When Dan and us went up there we got three goats and 2 that's all we took. 3 Q Do you know if there are whites, white people, who 4 hunt goats in any of the mountain areas around Wah tah 5 k'eght's territory? 6 A When the white people go in there they sneak around 7 and we are unable to know how much they take out. 8 Sometimes they go in there with helicopters and when 9 they go in there with helicopters and then they come 10 out of there quickly and we don't find out that they 11 been there until some period after. 12 Q If I could ask you now about the area on the 13 right-hand side of Exhibit 164, the lower right-hand 14 corner, also marked "goats", I think you told us that 15 you went to this area, which is generally speaking 16 near Two Bridge Lake, you went there with Victor Jim 17 and Chester William, do you remember telling us that? 18 A Yes. 19 Q And do I have it right that you -- the purpose of your 20 trip was to trap beaver, but that you got lost and so 21 you hunted goats instead? 22 A We didn't go up there to hunt beaver, but we went 23 there to check for the fish traps that were there, but 24 before we got there we came upon a goat which we 25 killed and then in turn that goat was brought in and 26 used at my father's funeral feast. 27 Q So that trip must have been quite recently? 28 A Yes, it was quite recent. 29 Q Is that the only time you've ever hunted goat in this 30 part of your territory? 31 A That was just the one time when we went in there. 32 Q Did you have a permit to hunt for goats on that 33 occasion? 34 A No. 35 Q Have you ever heard of an area or a place called the 36 Babine Mountain recreation area? 37 A Yes, I heard of that, but that area is quite a ways 38 away from where -- from there. 39 Q My instructions are that the Babine Mountain 40 recreation area is right in the area of Two Bridge 41 Lake, that's not all of it, but that's part of it. Do 42 you have any knowledge of that? 43 A I think it -- where we shot our goat was quite a ways 44 into our territory from Tedeltl'ets and that 45 recreation area would be further away past Haneec'et 4 6 gehw. 47 Q Can you recall where in the area that you've marked on 3066 H. Alfred (for Plaintiffs) Cross-exam by Mr. Plant 1 this map you killed the goat? 2 A We came in from here and we walked in this way. We 3 didn't get to the creek. We walked around in there 4 somewhere. It was quite a ways away from Two Bridge 5 Lake. 6 Q And the place you came in was along Driftwood Creek, 7 the road there? You -- I think you were pointing 8 along here? 9 A Yes. 10 Q And then at some point you headed off presumably you 11 began hiking or walking up into the hills? 12 A We walked west. 13 Q Right. Did you leave your truck at a place called 14 Sunny Point? 15 A I don't know the place where you call Sunny Point, but 16 we went up -- up C'ede'i kwe, and we cross -- we 17 crossed C'ede'i kwe and then we went into the timber. 18 MR. PLANT: C'ede'i kwe is? 19 THE TRANSLATOR: 231. 2 0 MR. PLANT: 21 Q And that's Driftwood Creek is it, Mr. Alfred? 22 A Yes. 23 MR. PLANT: Would it be — 2 4 THE COURT: 231? 25 THE TRANSLATOR: Yes. 2 6 THE COURT 2 7 MR. PLANT 2 8 THE COURT Yes. Would it be convenient to adjourn? Yes. All right. Just a moment please. 29 MS. MANDELL: How long do you think you're going to be? 30 MR. PLANT: My friend asks me how much longer I'm going to be 31 and I think she has Mr. Alfred's well-being in mind. 32 I can't say at the moment how much longer I'm going to 33 be. I think it's a fair guess that I'm going to have 34 some trouble finishing before noon tomorrow. 35 THE COURT: All right. Well, we will not detain Mr. Alfred 36 after two -- or after 12:30 tomorrow morning. If he 37 has to have his cross-examination continue some other 38 time so be it. I think that's the best way to do it. 39 MR. MACAULAY: My Lord, I take it that's as firm an arrangement 40 as one can expect, in other words, we will not prepare 41 our cross-examination for tomorrow? 42 THE COURT: Well, if you can count on your friend Mr. Plant 43 using up the morning -- 44 MR. MACAULAY: Really my question is, is the witness indeed 45 leaving at noon? 46 THE COURT: Well, I think so in view of the reasons for his 47 departure, yes. 3067 Proceedings 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 THE COURT MR. PLANT MS. MANDELL: My Lord, I can advise that I've canvassed with the witness the possibility from his point of view of his finishing tomorrow and not leaving until first thing Thursday morning. If that were a situation where he could be finished, his preference is to do that. He doesn't want to keep coming back, it's both expensive and tiring, and it's difficult all the way around, and if by starting a little earlier tomorrow we might be able to facilitate that his cross-examination would be complete in the day, by far that's his preference that we do that. Well, Mr. Plant and Mr. Macaulay, if you have all day tomorrow can you both finish comfortably and conveniently? My Lord, my ability to estimate the length of cross-examinations in this case is non-existent. It's certainly a possibility, but I thought my cross-examination of Mrs. Alfred would take a day. I think it took at least two. I'm not opposing my friend's request that we start early, I'm just not sure that it would produce the desired result. If we're not optimists in this business we wouldn't be here, so I think we should start at 9:30 and see if we can finish the witness tomorrow. MANDELL: Thank you. COURT: Would that be convenient, Mr. Macaulay? MACAULAY: Yes, My Lord, so long as I know what we're doing. COURT: I think we'll start at 9:30. MANDELL: Thank you. COURT: Oh, just before I go, I'm troubled about the question of the pleadings both as I've mentioned earlier and as you mentioned this morning and I just wonder if counsel can't agree on a time when we can have that argument. I would prefer to do it this week if possible, but I know that counsel have schedule problems and could they confer and let me know tomorrow if a suitable time can be arranged, if not this week, then perhaps next week? MR. RUSH: Perhaps I can just speak to that now, My Lord, I wasn't here for the full discussion that occurred this morning. I've just discussed it with Ms. Mandell, and I think it would be preferable that Mr. Grant have an opportunity of familiarizing himself with the comments that were made and as well our clients, and Mr. Grant will be down next week. COURT: All right. RUSH: And I would prefer that we consider possibly Tuesday THE COURT MS. THE MR. THE MS. THE THE MR. 3066 Proceedings 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 THE MR. THE MR. COURT PLANT COURT PLANT THE COURT MR. or Wednesday of next week being a time to have that out more fully. Is that going to be convenient to you Mr. Macaulay and Mr. Plant? Well, my problem at the moment is Mr. Goldie is out of town and I'm not certain that I'll be able to reach him and I know that he will be as interested as Mr. Grant to -- When will he be back? Thursday, but I may be able to reach him tonight, I may not. Yes. Well, I just think that we ought to get this matter settled, particularly about the nature of the plaintiffs' claim. I'm most uncomfortable proceeding this far into the trial without having that settled and I would like to have that matter considered next week if counsel can possibly arrange it. MACAULAY: It will save some time I think and it would be more convenient all around if the plaintiffs give, before we launch into argument, if the plaintiffs give us some idea or outline of the position that they may be taking if, for instance, and I take the railroad case, if the plaintiffs are not going to present a constitutional challenge regarding railroads, then I won't have to prepare for it. Then I won't be making any lengthy and useless submissions on it. Well, it may be that it's something that your friends can indicate to you, Mr. Macaulay, that they are or are not questioning the presence of the railway and the airport. They would seem to me to be fairly fundamental questions that the plaintiffs have probably considered, but I don't want to put myself inside their heads. I'm more concerned, however, about the -- well, it may be included, in the problem that we talked about last spring and that is the true nature of the plaintiffs' claim, and I think that probably subsumes this subsidiary question that you just mentioned Mr. Macaulay and for that reason it seems to me that it will be included in the discussion, but I would like to think that counsel could assist each other as much as possible in that connection, but I want to get it straightened out what the nature of the plaintiffs' claim is, and I would like to have that discussion next week. If the plaintiffs can indicate the railway and the airport problem exists or doesn't exist, Mr. Macaulay, then I think that would be very helpful. I'll leave that THE COURT 3069 Proceedings 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 with them. Thank you. All right. 9:30 tomorrow morning. THE REGISTRAR: Order in court. Court will adjourn. (PROCEEDINGS ADJOURNED TO FEBRUARY 3, 1988 at 9:30 A.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. Tanita S. French Official Reporter
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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[Proceedings of the Supreme Court of British Columbia 1988-02-02]
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