CONTENTdm
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.
application/pdf
15983 M. George (For Plaintiffs) Cross-exam by Mr. Willms 1 Vancouver, B. C. 2 April 22, 1989. 3 4 MARVIN GEORGE, Resumed: 5 6 THE REGISTRAR: In the Supreme Court of British Columbia, 7 Vancouver, this Saturday, April 22, 1989. Delgamuukw 8 versus her Majesty the Queen at bar, my lord. 9 I caution the witness, you are still under oath. 10 THE COURT: Mr. Willms. 11 MR. WILLMS: My lord could Exhibit 108-13 be placed before the 12 witness. This is the March 1987 opinion. 13 THE COURT: Which one is it? 14 MR. WILLMS: It's in the gray book my lord, 108-13. 15 THE COURT: Thank you. 16 Q And if you can turn to page 11, Mr. George, we left 17 off with the description of you of the planimetric map 18 at the top of the page, which is on a mylar base which 19 you identified is in Hazelton. And then in the middle 20 paragraph you say that you produced an original map 21 showing the external boundaries of the Gitksan and 22 Wet'suwet'en territory. Now, are any of the overlays 23 that are marked in the 646 series made from your 24 planimetric mylar base as opposed to your topographic 25 mylar base? 26 A I don't believe they were. 27 Q So, your understanding is that all of the overlays 28 were made from the topographic mylar base? 29 A Yes, I believe they were, yes. 30 Q At the bottom, under the title overlay -- 31 A Except for the first one, your honour, it would have 32 been on the planimetric base. The coded one. 33 THE COURT: Except for —? 34 A The original coded one, I believe it's -- 35 MR. WILLMS: 36 Q Do you mean the internal coded territories? 37 A Yes, that one would have been on my planimetric base. 38 THE COURT: Is that five? 39 MR. WILLMS: Exhibit 102, my lord, and it's map four. 4 0 THE COURT: Overlay number four? 41 A Yes, it would be map number four. 42 MR. WILLMS: 43 Q Now, you describe overlays down below on page 11, you 44 say "I next developed an overlay showing clan 45 separation within the claimed boundaries for both the 46 Gitksan and the Wet'suwet'en." 47 Is that the one you have just described as map 15984 M. George (For Plaintiffs) Cross-exam by Mr. Willms 1 four? 2 A Yes, there is a clan separation there plus internal 3 boundaries. 4 Q And at the bottom of the page and carrying over to the 5 next page, you say: "However, I am in the process of 6 producing maps of the individual house territories. 7 Upon completion of that work I shall be able to update 8 and produce a final version of the map of the entire 9 territory with all the house territories delineated 10 separately on it." 11 And now that's not the way that you arrived at 9-A 12 and 9-B, is it? 13 A No, I told you that when this was -- this original 14 draft was produced, my understanding of my 15 responsibility at that time was based on this 16 particular draft but that whole thing changed. 17 Q But the original plan that you had was to map the 18 individual house territories and then put them all 19 together into a larger map? 20 A That was the original plan, yes. 21 Q Yes. And you changed that, did you change that 22 because there were gaps and overlaps between these 23 individual house territory maps? Is that why you 24 decided to do it differently? 25 A No, no, no, there is no gaps, there is no overlaps 26 between the house territories. 27 Q Well there isn't in 9-A and 9-B. 28 A No, there isn't in 9-A and 9-B and there isn't in the 29 original coded map either. 30 Q You will agree with me though that if we went through 31 the interrogatory maps and put them on a map there 32 would be gaps and overlaps territories, wouldn't 33 there? 34 A If you put all the interrogatory maps together? 35 Q Yes. 36 A The interrogatory maps were draft maps, were never 37 finalized and the information that appears on the maps 38 9-A and 9-B is from the affidavits and there is no 39 overlaps. 40 Q No, but you will agree with me from your own knowledge 41 of the interrogatory maps that if we put all of those 42 maps together there would be gaps and overlaps between 43 house territories? 44 A The original interrogatory maps were never finalized 45 with the hereditary chiefs and I can't really -- if 46 you are comparing them to map 9-A and 9-B, is that 47 what you're asking me or if the original interrogatory 15985 M. George (For Plaintiffs) Cross-exam by Mr. Willms 1 maps as compared to the original coded maps? 2 Q No, what I am suggesting is if you took a map of the 3 whole area, with no boundaries on it, and then took an 4 interrogatory map and started filling the territories 5 in using the interrogatory maps until you had used all 6 of the interrogatory maps and put them all onto your 7 base map, what you would have if you did that is gaps 8 and overlaps between house territories? 9 A I don't believe there would be gaps and overlaps. 10 THE COURT: You mean in some. 11 MR. WILLMS: 12 Q Some, I am not saying in all, but there would be some 13 gaps and overlaps? 14 A I can't see there would be gaps and overlaps. I can't 15 agree with that. And I wouldn't have had a complete 16 set of bases at one time, because the whole area up to 17 94-G there were never bases available to me until 18 after a certain point. 19 Q I just want to be clear, are you saying that there 2 0 wouldn't be any or that you don't know whether there 21 would be any? 22 A I don't believe that there are interrogatory maps that 23 are attached to every one of the interrogatories. For 24 the simple reason that those bases may not have been 25 available to me. 26 Q Carrying -- 27 THE COURT: Sorry, just to complete my note, Mr. Willms, if you 28 don't mind, so instead of proceeding as planned to map 29 the individual house territories and put them together 30 on a map of the entire area within the external 31 boundaries, you instead took a map of that entire area 32 and put the house internal boundaries on that larger 33 map? 34 A The 1:250,000, your honour? 35 THE COURT: Yes. 36 A On that particular scale it's impossible to identify 37 all the geographical features that would have been in 38 in any particular area because the scale is just too 39 small. It would have identified certain major 40 features within each individual area, but it wouldn't 41 have identified all geographical features there. It's 42 just too small. 43 THE COURT: I am just trying to get a picture of what the two 44 different plans were. You told Mr. Willms originally 45 you planned to map the individual house territories 46 and put them together in a map of the entire area, 47 that was your original plan? 15986 M. George (For Plaintiffs) Cross-exam by Mr. Willms 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 A THE COURT A A Yes, that was. THE COURT: What is the alternative that you actually followed? A Well, Lou Skoda was then hired on to produce maps of the -- maps 9-A and 9-B, which is the external-internal boundaries of the Gitksan and Wet'suwet'en, and we had provided him information of where those boundaries were and it's on that information that he produced overlays maps 9-A and 9-B. Is that different from what I suggested a moment ago? I don't know. Maybe I just didn't understand your question. Well, I can well understand that, because I am in unchartered waters here. But I am trying to get the change that was made from your original plan, I want to make sure that I have it acurately. What was -- what did you do instead of the plan as originally intended? I am still in the process of up-dating the individual base maps as per the affidavits. But, again, I don't have a complete set of base maps that will incorporate all of the boundaries as identified in the affidavits, your honour. There are some changes and those changes may have taken me off the original base that I had and originally we had intended to go on a north-south perspective but when Lou Skoda was hired on he had gone in an east-west perspective, so to be consistent with his maps I had then changed all my format to go to the east-west also. THE COURT: All right. Thank you. MR. WILLMS: Q If I can describe it this way, Mr. George, the original plan was to add together all of the territories to make the big territory and ultimately what you did was you took the big territory and divided it up? No, the original plan was to produce a map which showed the external boundary on a base 1:250,000 and identify those internal boundaries on that particular map. And also to produce individual maps of those individual territories depicting the external boundaries of that particular territory, identifying the geographical features within that territory and labeling them and to show the adjacent territories and, in some instances, if there was a external boundary on there, that external boundary would have A 15987 M. George (For Plaintiffs) Cross-exam by Mr. Willms 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 Q COURT A THE THE THE MR. been shown also in a different format, so that there would be no problems in identifying the area that I wanted to identify, no problems in identifying the adjacent house territories and there would have been no problems in identifying the external boundaries and to label each one of those territories. Mr. George -- I am sorry, just to make sure I have it. So you weren't able to produce from this process maps of the individual territories from the affidavits on a scale of 1:250,000? Yes, that's the result of that process right there. But what I am saying is that I don't have bases that would cover all of those individual territories to produce a map right now. I have the bases that are in -- based on information I had previously to the affidavits, there was some changes to the boundaries. And I am in the possess of updating all of that information. Am I right in saying from this process you have not been able to produce maps of the individual house territories on a larger scale than that or is it a smaller scale than 1:250,000? Larger scale. Larger scale. Is that correct? I have a majority of them done and I am still in the process of completing it. And I will be ordering new bases that will allow me to complete them all, your honour. What is the larger scale? The larger scale would be a scale ranging from 1:10,000 to 1:100,000. One to ten or one to 200,000? No, 1:100,000, your honour. It would range from that to that, depending on the size of the particular territory. COURT: All right. Thank you. WILLMS: Q Those are the scales of the interrogatory maps too, aren't they? Some of them are, yes. They are within that range? Within that range, yes, that's correct. On page 12, the second paragraph you talk about a -- "This process has been further complicated by amendments to the pleadings and by instructions from legal counsel to include the boundaries of the THE COURT A Q A COURT A COURT A A Q A Q 159? M. George (For Plaintiffs) Cross-exam by Mr. Willms 1 territories of the named plaintiffs' houses. As a 2 result of further amendments to the pleadings there 3 will be further amendments to the boundaries of the 4 chiefs' territories." 5 Now is that the process that you used in preparing 6 maps 9-A and 9-B, that when there was an amendment you 7 added that territory? 8 A Everything that I added to the maps 9-A and maps 9-B 9 comes from the hereditary chiefs, there is nothing 10 that I added by myself to produce that map. That map 11 was produced based on the affidavits and from 12 information that went into those affidavits that 13 described those boundaries and described those 14 geographical features. And it's based on the 15 affidavits that overlay maps 9-A and 9-B were 16 produced. 17 Q Further, carrying on at page 12, you produced an 18 overlay showing all administrative boundaries based on 19 information obtained from the Ministry of Forests and 20 the Ministry of Lands, Parks and Housing. What was 21 that that you prepared? 22 A I was attempting to try to produce all these maps but 23 then again that whole format changed again, because 24 Lou Skoda had been hired on to produce all that 25 information. 26 Q Did you produce this overlay on a planimetric base or 27 on a topographic base? 28 A It would have been just on a mylar. 2 9 Q On a mylar. 30 A Yes. 31 Q And topographic or planimetric? 32 A A mylar is neither a topographic or planimetric. A 33 mylar is a mylar. 34 Q What were you mapping on to, just a blank mylar? 35 A That's correct. It says overlay. 36 Q What was underlaying the overlay, topographic or 37 planimetric? 38 A Underlaying the overlay I believe would have been the 39 original planimetric base that I had produced. 40 Q Do you still have that overlay? 41 A Not in the state that it was in when this thing was 42 produced, no, I don't. 43 Q But you still have it? 44 A Yes, when, like I say, when the -- that map was 45 produced based on information that I had at the time 46 which identified certain geographical features and 47 certain places and when the format changed to the 15989 M. George (For Plaintiffs) Cross-exam by Mr. Willms 1 north-south that was the only base that I had so I 2 took this base and erased all the names and 3 re-labelled those features based on east-west 4 perspective. 5 Q But do you still have an overlay showing some or all 6 administrative boundaries based on information 7 obtained from the Ministry of Forests and the Ministry 8 of Lands, Parks and Housing? 9 A I don't have them any more, no. They have gone out of 10 my possession and I don't know where they are. I 11 believe they may have been sent to Lee Lou Skoda to 12 use. I don't know where they are. 13 Q You don't have them any more? 14 A No, I don't have them. 15 Q How about the next one, you describe overlay "showing 16 transportation routes based on the 1:250,000 series 17 which I obtained from the Ministry of Environment and 18 Ministry of Forests"? 19 A I thought we just talked about that one. 20 Q You don't have that one either? 21 A No. 22 Q And you don't know where it might be? 23 A No. 24 Q Although I have been calling this a draft, Mr. George, 25 you -- this was your opinion in 1987 and you knew that 26 this was going to be delivered as your opinion to the 27 defendants, is that right? 28 A If I continued to do what I had set out to do here, it 2 9 would have been my opinion. But my job changed and 30 based on the opinion that you have right now, the 31 updated opinion is what I was -- it's what I did. 32 Q Well, let me back up then. You knew that this 33 document, which was prepared by you, was going to be 34 delivered to the defendants in this case; is that 35 right? 36 A Yes, I did. 37 Q And at the time you prepared it this document 38 contained your opinions at the time; is that right? 39 A At the time based on my duties at the time, yes. 40 MR. WILLMS: My lord, I missed a couple of maps the other day 41 which I would like to finish right now. I am finished 42 with the opinion of March, 1987. 43 THE COURT: All right. 44 MR. WILLMS: And I wonder if Exhibit 683 for identification 45 could be put. 4 6 THE COURT: 64 3? 47 MR. WILLMS: 683, my lord. 15990 M. George (For Plaintiffs) Cross-exam by Mr. Willms 1 MR. WILLMS: Gyetm galdoo G-Y-E-T-M, G-A-L-D-O-O, that's a map 2 that you prepared, Mr. George? 3 A Yes, it is. 4 Q And it's a map that you prepared of the territory of 5 Gyetm galdoo? 6 A It is a draft map prepared by me of the territory of 7 Gyetm galdoo as they understood it to be at this 8 particular time, yes, it is. 9 MR. WILLMS: May that be exhibit 683 proper, my lord. 10 THE COURT: Yes. 11 12 (EXHIBIT 683: MAP OF TERRITORY OF GYETM GALDOO) 13 14 MR. WILLMS: Now, the next one -- my lord, our notes indicate 15 that this was marked for identification, but we have 16 had some trouble finding it so I propose that this map 17 be given a separate number and we can relate it if we 18 ever do find the other one. 19 THE COURT: What is it you have there? 20 MR. WILLMS: It is the territory of Wii gaak, dated May 13th, 21 1987. 22 Q I am putting a copy of that -- 23 THE COURT: You don't have an exhibit number for it now? 24 MR. WILLMS: It may have been marked Exhibit "A" for 25 identification, my lord, on the cross-examination of 26 Neil Sterritt. 27 THE COURT: All right. 28 MR. WILLMS: But, I think just to make sure, while we have got 29 Mr. George here -- 30 Q Mr. George, that's a map that you prepared? 31 A Yes, it is. 32 Q And it's a map that you prepared to show the territory 33 of Wii gaak? 34 A At this time, I believe -- the boundaries I have to 35 compare it to an overlay map 9-A to see if it is the 36 exact boundaries of Wii gaak as described in the 37 affidavit. 38 MR. WILLMS: Could that be the next exhibit, my lord 39 40 (EXHIBIT 1010: MAP OF TERRITORY OF WII GAAK) 41 42 MR. WILLMS: 43 Q Mr. George, I am showing you a photocopy of a letter 44 dated April 21st, 1988 from Mr. Grant to yourself, re 45 territorial affidavits. You received this letter? 46 A Yes, I did. 47 MR. WILLMS: My lord, 1018-14. 15991 M. George (For Plaintiffs) Cross-exam by Mr. Willms 1 (EXHIBIT 1018-14: LETTER DATED APRIL 21, 1988) 2 3 MR. WILLMS: 4 Q There is a reference to a reporting letter of April 5 18th, do you still have the letter that is referred to 6 there? 7 A I may have and I may not. I would have to check that, 8 your honour, to -- 9 Q All right. Maybe you can tell me this, you will see 10 in the last line of that first paragraph you say, or, 11 sorry, Mr. Grant says to you: "However, I appreciate 12 the concern you have regarding the witness who swore 13 the affidavit on April 19th that we get those matters 14 finalized as quickly as possible." And I wonder if 15 you could turn at the same time to tab 5 of 1018, 16 which is the affidavit of Roy Morris. It's also 17 Exhibit 670, my lord. 18 If you turn to the last page, Mr. George, you will 19 see that this affidavit was sworn April 19th, 1988, 20 and I have searched through the Wet'suwet'en 21 affidavits and can't find another one sworn this date. 22 But can you remember, is this the affidavit that you 23 were concerned about? 24 A No, I can't remember. I would have to search back and 25 try to identify that. But at this time, no, I can't 26 remember if it's this affidavit or not. I don't 27 remember having any problem with this particular 28 affidavit. 29 Q You don't? 30 A No. 31 Q Do you remember having a problem with an affidavit? 32 A No, I don't. 33 MR. WILLMS: Could Exhibit 990 be put to the witness. And it's 34 tab 2. 35 THE REGISTRAR: This is the document Hugh Brody, my lord. 36 MR. WILLMS: 990, tab 2. 37 Q Mr. George, this has, or is from Mr. Brody and you see 38 your name is in the upper left hand corner. And I 39 believe it is supposed to represent you speaking, a 40 transcript of you describing the mapping process, have 41 you seen this before? 42 A Have I seen this? 43 Q Yes. 44 A No, I haven't. 45 Q Do you recall being filmed by Hugh Brody? 46 A I believe I was, but it was never used in the film. 47 Q Do you remember whether or not there was taping of 15992 M. George (For Plaintiffs) Cross-exam by Mr. Willms 1 what you were saying, that is, it was video and audio? 2 A I believe it was, but like I said it was never used in 3 the actual film. 4 Q Could you turn to 3/2? 5 THE COURT: That's of 990-two? 6 MR. WILLMS: Yes. 7 A Tab 3? 8 MR. WILLMS: No, the page numbers are three and then there is an 9 oblique and then it appears to be page 2? 10 A Yes, I have got it. 11 Q You -- and this is supposed to be a transcript of you 12 speaking and in the middle of the page there is a 13 description as follows: "And the researchers would go 14 to the elder's house and bring along maps, tape 15 recorders and listen, talk to him, try to get him to 16 describe his areas and try to get him to pinpoint on a 17 map as to where these areas were but it's kind of hard 18 with a map, because they look at a map, all they see 19 is lines, they don't really understand the map." 20 Now, first of all, do you recall saying that or 21 something similar to that during the Hugh Brody taping 22 process? 23 A Yes, I may have said those things, yes. 24 Q And that's the case, isn't it, the case is that it was 25 hard for the chiefs to pinpoint anything on a map 26 because all they see is lines, they don't really 27 understand it? 28 A I believe it's been said over and over that many of 29 the chiefs don't understand maps and can't read maps 30 and that is why field trips were conducted, that's why 31 they went out in a helicopters and once they got on 32 the land they could see the territories, see the 33 territories, they could see the geographical features, 34 they could identify those features, identify 35 boundaries. 36 Q But when you went around to prepare the territorial 37 affidavits and went to the person with the draft 38 affidavit, you went with a map too, didn't you? 39 A And I also indicated I explained in great detail where 40 those boundaries were, which features those boundaries 41 were on based on information that they had given me. 42 What we are explaining here is the original process of 43 how they started gathering information. It has 44 nothing to do with the affidavit process, what I am 45 saying here. 46 Q Now, one thing that you do recall is that in the 47 initial process it was the hereditary chiefs who went 15993 M. George (For Plaintiffs) Cross-exam by Mr. Willms 1 out on the field trips and pointed out their own 2 territories, is that fair? It was mostly the 3 hereditary chiefs who did that? 4 A Along with the research team as I indicated in here. 5 Q But it would be a hereditary chief saying "there is my 6 boundary, that's in my boundary, that's someone 7 else's", correct? 8 A And based on the understanding of that particular 9 researcher and how we may have transferred that 10 information to the working maps. And those boundaries 11 that come to me would be based on that. 12 Q And the reason why it was the hereditary chiefs that 13 were taken out was because it was assumed they would 14 be the most knowledgeable about those territories? 15 A They are the most knowledgeable about their 16 territories. You will find in the affidavit process, 17 when those maps were explained to them in great 18 detail, identify those features that they identified 19 as being on their boundaries and the geographical 20 features within their boundaries. And that's in the 21 affidavits. 22 Q Well — 23 A They are very knowledgeable on their territories. 24 Q Mr. George, you will agree with me that many of the 25 affidavits, including many of the Wet'suwet'en 26 affidavits, are not sworn by the hereditary chief who 27 claims the territory? 28 A They are sworn by people who grew up on those 29 territories and who were given permission by the 30 hereditary chief to speak on those territories. 31 Q But you will agree with me this far, won't you, that 32 when you have an interview note with a hereditary 33 chief about his territory and that interview note 34 conflicts with an affidavit, the interview note is 35 probably right? 36 A No, the affidavit is right. 37 MR. WILLMS: Now, my lord, that -- there are a number of 38 outstanding matters, one of them is in court, it's 39 that map which Mr. George has almost finished tracing 40 on and I do want to mark that when he is finished and 41 I hope that he can do it today. Maybe at the break. 42 A Yes, I planned to do it at 4 o'clock but 4 o'clock 43 came, I was so happy to get out of here. 44 MR. WILLMS: I am not being critical, Mr. George. 4 5 THE COURT: I'm with you. 46 MR. WILLMS: I just wanted to make sure that when Mr. George is 47 finished, that I can pop up and mark that, even though 15994 M. George (For Plaintiffs) Cross-exam by Mr. Willms 1 I don't have any further questions right now. 2 THE COURT: Remember me, what is it we are marking? 3 MR. WILLMS: My lord, it is a copy of the base map, which has 4 been marked Exhibit 646, and what Mr. George is 5 roughly transferring on to it is the overlap boundary 6 from 101 on to that map. And maybe what I could do is 7 just reserve the number now. 8 THE COURT: All right. It's the 101 overlap boundary? 9 A At this time maybe I can say that the map that I will 10 be transferring that boundary on isn't the same bases 11 that I use as indicated to me by Lou and that the 12 drainage patterns on that map are way different from 13 the drainage patterns that appear on my map and what I 14 will do is I will transfer that boundary where it will 15 fall on that map, even though it will fall through 16 different drainage patterns. As long as everybody 17 understand that. 18 THE COURT: Is it Exhibit 101? 19 MR. WILLMS: It would be moving the line from Exhibit 101 on to 20 a copy of 646. 21 THE COURT: Even though — what is the distinction, Mr. George, 22 that they are both 1:250,000, aren't they? 23 A Yes, and mine is a planimetric base and as I indicated 24 I have used the Kail Autofocus projector to transfer 25 that particular boundary and I indicated that the 26 boundary in some areas did not fall on the high land 27 but it was not up to me to say well, this is where 28 they want to have their boundary to go and I had 29 transferred that boundary with the Kail Autofocus 30 projector on to that map. And the map, the 1:250,000 31 composite that is there is different from the 32 1:250,000 topographic print that I had sent to Lou 33 Skoda. 34 THE COURT: What is the difference between them? 35 A I believe his would be a more up-to-date base than 36 what I had and the drainage patterns on his base 37 differ from the drainage patterns that are on my base. 38 THE COURT: They are not the same base? 39 A No, they are not. 40 THE COURT: The are not the same topographic base? 41 A Not the same topographic base. 42 THE COURT: All right. Any objection to that being reserved? 43 MR. RUSH: No, I don't have any objection to that. But I do 44 want to say, you might recall that when the overlap 45 series was introduced I attempted to explain, as well 46 as I could, what my instructions were from Mr. Skoda 47 about the way in which the base was, the way he made 15995 M. George (For Plaintiffs) Cross-exam by Ms. Koenigsberg 1 the base, and you may recall that there were different 2 editions of the federal and provincial series which he 3 had to place together that were different from the 4 bases that were earlier provided by Mr. George and as 5 well that he had to fit them together and there was 6 a -- I am sure that I stated it more articulately then 7 than I am now, because it was fresher, but he had to 8 makes adjustments on the western side because of a 9 magnetic differentiation that appeared in the later 10 editions of the same topographic series. In any 11 event, it was all set out at that time. 12 THE COURT: All right. 13 THE REGISTRAR: The next number would be 1022, my lord. 14 THE COURT: All right. That number will be reserved and you can 15 speak to that on Monday. 16 A On another day when I am not under pressure to do it, 17 I will -- 18 MR. WILLMS: Certainly before Mr. George returns to Hazelton. 19 Now, my lord that, concludes my cross-examination, 20 subject to anything that may arise out of the 21 documents that Mr. George is sending down and if 22 anything does arise out of it, I recognize that we 23 will be back before you to see where that takes us. 24 THE COURT: All right. Thank you. 25 THE COURT: Ms. Koenigsberg? 26 27 CROSS-EXAMINATION BY MS. KOENIGSBERG: 28 2 9 MS. KOENIGSBERG: 30 Q Mr. George, with some trepidation I am going to try 31 and understand the process that you went through in 32 mapping the external and internal boundaries before 33 you entered into the territorial affidavit process, 34 which began sometime in 1987; is that right? 35 A That's correct, yes. 36 Q I think the best place to begin, at least for me, is 37 with your summary opinion, which was delivered to the 38 defendants in March of 1987, and which is 1018-13. In 39 this summary opinion, you are explaining the bases for 40 your opinions which are set out on page two, and 41 bearing in mind that this opinion is as of March of 42 1987, correct? 43 A Yes. 44 Q And when we look at the information that you're 45 discussing in this opinion, we are looking at the 46 state of the information and your instructions as of 47 the spring of 1987? 15996 M. George (For Plaintiffs) Cross-exam by Ms. Koenigsberg 1 A Hm-hmm. 2 Q Correct? 3 A Hm-hmm. 4 Q Can you say yes or no? 5 A Yes, yes. Sorry. 6 Q You knew in March of 1987 that the actual trial that 7 we are now engaged in was to begin May 11th, 1987? 8 A That's correct, yes. 9 Q And if I can put it this way, and I think it's in your 10 opinion, in terms of your goal that's what you were 11 shooting for? 12 A That's what I was shooting for. 13 Q Paragraph 3 on page 2 you say: "I am presently in the 14 process of completing this work. As a result of the 15 ongoing research being conducted by Neil Sterritt the 16 maps of each house territory are not yet complete. 17 Therefore the maps which I intend to prepare on the 18 entire territory showing each house boundary are not 19 yet complete." 20 A That's correct. 21 Q And you are there describing that you are working on 22 individual house territorial boundaries and that a 23 great part of that process is information still being 24 collected by Neil Sterritt and then he passes it on to 25 you? 26 A As I work on a particular base, what I try to do is 27 complete a particular project, as I am working on it 28 again as I explained, what that does for me is that on 29 a particular base I put on all the information that I 30 have that would pertain to that particular base. 31 Q When you're saying base, just so that we are very 32 clear -- 33 A Of a particular territory. 34 Q All right. 35 A Would be from -- 36 Q An example would be -- 37 A A scale from 1:10,000 or 1:100,000, depending on the 38 territory that I was working on. 39 Q And an example of that would be the interrogatories' 40 maps, some of which we have seen, that is an example 41 of the base with information on it? 42 A Yes, and I was also aware that none of those bases 43 would be thought of to be final until the time that 44 the chiefs had reviewed them extensively and had 45 identified them as being the final maps. 46 Q I am going to take you through your draft -- your 47 opinion, rather, your summary opinion, where I believe 15997 M. George (For Plaintiffs) Cross-exam by Ms. Koenigsberg 1 that you are describing the very process that you are 2 describing, the state of your knowledge in March of 3 '87, so if you turn to the first paragraph over on to 4 page 2 and it begins -- I mean on three, it begins on 5 page 3: "As part of my work I have been required to 6 prepare drafts of maps for the use of legal counsel in 7 the preparation of this litigation. An example of one 8 of those draft maps is listed as document 1324 in the 9 defendants' list of documents. I have also prepared 10 draft maps of the house territories, some of which, I 11 have been informed, have been attached to 12 interrogatories of individual chiefs." 13 A Yes, it identifies them as being drafts because they 14 were never finalized. 15 Q Okay. Now, you prepared a large number of draft house 16 territory, individual house territory maps, bases with 17 information on them? 18 A That's correct, yes. 19 Q And some of those were attached to interrogatories and 20 delivered to the defendants, correct? 21 A That's correct, yes. 22 Q So there were some that did not get attached to 23 interrogatories sworn to by individuals? 24 A Yes, as I explained that I may not have particular 25 bases for those particular territories. 26 Q Okay. This is one area where I am confused so let's 27 try and understand that. From page 3 here, you appear 28 to be describing a large number of draft maps of the 29 house territories and I take it that when you're 30 describing those there, they are draft -- they are 31 bases with some information on them? 32 A Yes. 33 Q Okay. Some of those became interrogatories' maps? 34 A That's correct, yes. 35 Q Some of them did not? I deduced that from your words. 36 A Yes. 37 Q Okay. But the some that did not become attached to 38 the interrogatories maps, had information on them for 39 some reason, a decision was made not to attach them to 40 interrogatories? 41 A No, no, no, no. The ones that did not get attached 42 either I did not have a base or if I had a base there 43 was no information on that particular base. I may 44 have not got to that particular territory yet at that 45 particular time. As I explained, I tried to complete 4 6 one project at a time and not jump around so I have a 47 pretty good idea of the direction I am going and 1599? M. George (For Plaintiffs) Cross-exam by Ms. Koenigsberg 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 information that I have on those maps. Q So if I understand you then, it's your understanding that every house territory draft map which you had prepared, where you had a base with information on it, a boundary and features marked on it, became attached to an interrogatory, it was only those where there is a base, I guess, but no information on it that did not become attached to interrogatories? MR. RUSH: No, he didn't say that. That's not a summary of his evidence. He said he didn't have some bases as well. THE COURT: I took it from that that he said that he drew some of these maps without a base. A The original process was the ones that I had drawn, I had drawn one base map and drew the planimetric information on it and then added the topographical information, like, literally hand drawing each map but that process would have been just too costly, taken too long, so we started ordering bases from Terra Surveys in Ottawa and at the time I believe there were 94-D series, there were no 1:50,000 bases available but they were becoming available and as they became available they produced those maps for me. But I never did have a complete set all at one time. MS. KOENIGSBERG: Q Okay. Sorry, we are going to have to take this piece by piece for me to understand it. THE COURT: Takes it in leaps and bounds. MR. WILLMS: We will get to the metes and bounds. Q I am just showing you an interrogatory map which was marked, it was marked by Mr. Willms as 1020-2, and this is just for illustration, this we know as an interrogatory map? Yes, it is, draft copy, yes. Now, its base, if I understand it, is all of the information which underlies the boundary and the labeling of the features; is that right? Is that what you mean by base? Yes. And it is a draft copy as it's identified on here and at the time of the interrogatory process, everybody knew that these were still draft copies but they were used, for whatever reason, to be attached to those interrogatories. Q As far as you know -- well let me ask you: Did you attend when any interrogatories were sworn by a hereditary chief? A No, I didn't. Q And when they were taken around the boundaries? A Q A 15999 M. George (For Plaintiffs) Cross-exam by Ms. Koenigsberg 1 A No, I wasn't -- I didn't attend. And I don't know if 2 they did take them around the boundaries and I don't 3 know if -- I can't say that. 4 Q So you know nothing about the process by which the 5 interrogatory map was attached to the interrogatories? 6 A No, I don't. 7 Q Okay. I am not finished trying understand this yet. 8 Now, when we talk about -- just leave that in front 9 of you. When we talk about draft maps on page 3 of 10 your opinion, "Draft maps of the house territories, 11 some of which I have been informed have been attached 12 to interrogatories of individual chiefs", 1020-2 there 13 in front of you, is an example of some which have been 14 attached to interrogatories of individual chiefs? 15 A Yes. 16 Q Was there another form of map which falls into the 17 category of draft maps of house territories which 18 doesn't look like that? 19 A Any map that was never finalized by the hereditary 20 chiefs would be considered a draft map and that 21 process was done in the affidavit process and those 22 maps became the final maps which makes up the external 23 and internal boundaries of the Gitksan and 24 Wet'suwet'en. 25 Q I am trying to understand what the two categories of 26 maps look like that you have described in the first 27 paragraph, not the first full paragraph, but the first 28 paragraph of page 3 of your opinion, where you 29 describe "I have also prepared draft maps of the house 30 territories, some of which, I have been informed, have 31 been attached to interrogatories of individual 32 chiefs." Now, 1020-2 is one category of the draft 33 maps which were house territories? 34 A Yes. 35 Q There are others that were not attached to 36 interrogatories, true? 37 A There were maps that were not attached to 38 interrogatories probably because I did not have bases 39 of those particular areas at the time. 40 Q But you had a map of a house territory that did not 41 have a base like in 1020-2? 42 A Run that by me again, please? 43 Q There was a map but you had no base? 44 A I may have had a mylar topographic base similar to 45 that without any information on it, like a blank 46 mylar, I may have had that, yes. 47 Q Have we had an example of that in the courtroom during 16000 M. George (For Plaintiffs) Cross-exam by Ms. Koenigsberg 1 your evidence? 2 A No. 3 Q Is that — 4 A It's the information that I asked of Dick LeSage, he 5 indicated to me that he could provide me with a 6 certain -- Dick LeSage is from Terra Surveys in Ottawa 7 and in Ottawa he has access to negatives which are a 8 series of plates which are used for the lithographic 9 process of producing the 1:50,000 topographic series, 10 and each one of those plates contains different 11 information, one plate may contain just the 12 planimetric features, another plate may contain just 13 the topographic information and another plate may 14 contain administrative boundaries, another plate may 15 contain names. Now it's that process, I asked him to 16 produce a map for me that did not contain any names on 17 it and I did not want the U. T. M. grid because I 18 wasn't going to be needing the U. T. M. grids on these 19 particular maps and that blank map that he produced 2 0 for me. 21 Q Okay. So you had some maps on which you drew house 22 territories but it had a different base than the one 23 that we are looking at at 1020 and some state of 24 information on it, I mean, some state of information 25 which allowed you to draw a house territory? 26 A Again, I explained to you that when I start one 27 project I complete one project. I wouldn't start this 28 project and then take this particular map and draw a 29 line and then leave it and run back to this particular 30 map, carry on, go back to that map, draw another line, 31 add one feature and run back to the other map, no I 32 didn't do that. 33 Q I understood you when you said that before, Mr. 34 George, that's why I am having in particular a great 35 deal of difficulty understanding what you meant in 36 March of 1987 when you wrote this opinion, when you -- 37 A Maybe I can help you there. 38 Q Let me ask my question though, just so that we are on 39 the same wavelength here. Would you agree with me 40 when I read this paragraph before the first full 41 paragraph on page 3, that the one we have gone over 42 several times here about the draft house territories, 43 which you prepared that you're talking about two 44 categories of draft maps of the house territories? If 45 we think of a whole pile of them some of them were 46 attached to interrogatories and some weren't, the some 47 that were look like 1020-2, okay, are there two 16001 M. George (For Plaintiffs) Cross-exam by Ms. Koenigsberg 1 categories? 2 A Well, a blank map would not be considered a draft, a 3 blank map is just a blank map. There would be no 4 reason to consider it a draft. 5 Q What did you mean then? 6 A Every map would have been a draft map and by the 7 time -- if this was a process that we are still going 8 on and those maps were still never finalized by the 9 hereditary chiefs at the end of the day when I had 10 completed all of those maps they would all be 11 considered draft maps because they were never 12 finalized. And it's the ones that I had at the time 13 that were attached to the interrogatories, or the ones 14 that I am referring to as some of them have been 15 attached. 16 Q Which ones were not attached? 17 A The ones that were not completed. 18 Q And so they looked like 1020-2 but they had less 19 complete information than, for instance, 1020-2; is 20 that right? 21 A Maybe I will go back to what I originally said. When 22 I started a project I would complete a project. I 23 would not jump from this map to another base and draw 24 a line and then leave it and leave it in a state of 25 incompletion and run back to this map and put some 2 6 more information, jump back to that map again and add 27 a name and jump back to this, so I would end up with 28 maps of different stages of completion. No, that's 29 not the process. I would complete a particular 30 project and then that particular base has information 31 that would allow me to complete other bases. If would 32 have boundaries on there that I would have already 33 have taken from that information that I had. An 34 example I would use, this particular base two, draw 35 the bas of Gwis Gyen, if I had that particular base. 36 Because this already has this boundary on it. So I 37 would then use this base to transfer the boundary of 38 this territory on to the other map. So it assists me 39 in preparing the other map. 40 Q All right. Let's make sure the record's clear here. 41 You have said you would use this map, referring to 42 1020-2, which is which house territory? 43 A There I believe is identified as Haakasxw. 44 Q And that's H-A-A-K-A-S — 4 5 A X-W. 46 Q Right. And on the eastern side -- 47 A Yes. 16002 M. George (For Plaintiffs) Cross-exam by Ms. Koenigsberg 1 Q -- of Haakasxw's territory -- I hope I got that 2 close — is Gwis Gyen, G-W-I-S, G-Y-E-N? 3 A That's correct. 4 Q And you would use 1020-2 as part of the next map which 5 would show the territory of Gwis Gyen; is that 6 correct? 7 A Yes, it would be a building process. I would then use 8 this base to draw the adjacent house territories which 9 would -- the adjacent house territories would then be 10 this base. It would be a building process. I 11 wouldn't be jumping from one base to the other base. 12 I wouldn't have bases in differ states of completion. 13 Q If I understand that process, at any one time I should 14 not expect to find in your office a map from way up, 15 of the a house territory way up north and one way down 16 south and one way over on the east with nothing in 17 between, because you don't work like that; is that 18 right? You would have completed maps each relating to 19 the next, geographically speaking; is that right? Is 20 that what you're saying? 21 A That's the process that I would use but that's not 22 necessarily a process that I always followed. If for 23 some reason they would require a particular base for 24 another area, for whatever reason, and if I had that 25 particular base I would then go to that base and do 26 the same thing, that same procedure again. 27 Q All right. I am just going to try one more time on 28 paragraph 3. On page 3 of your opinion, sorry. And 29 you will forgive me -- 30 A Page 3? 31 Q Page 3, the same line where it reads to me, Mr. 32 George, like we have two categories of draft maps of 33 the house territories? 34 A No, there is only one category of draft map. It may 35 appear in here that there is two categories but there 36 is only one category, either a blank map or a draft 37 map. 38 Q All right. 39 A Or in some cases no maps, depending on what stage I 4 0 was at in time and what stage the maps came to me from 41 Skoda. 42 Q You had information, if I can try and understand this 43 now, you had information in varying stages of 44 completion about a large number of house territories; 45 is that right? 46 A That's correct. 47 Q And you transferred that information on to a piece of 16003 M. George (For Plaintiffs) Cross-exam by Ms. Koenigsberg 1 paper with varying degrees of information on it? 2 A That's correct. 3 Q And that would result in some maps with a 4 topographical base like the one we see in 1020, with 5 the amount of information that you have drawn on it in 6 1020, that would be one category, correct? 7 A I think you lost me along the way here. Maybe you 8 could start that again. 9 Q If you have a variety of what I will call bases that 10 is -- 11 A Blank. 12 Q -- blanks or maps prepared by Terra, either with 13 topographical features or whatever the base is made up 14 of, some topographical features removed, in other 15 words you had a variety of pieces of paper that you 16 were going to make a house territory map out of, it 17 had a variety of information on them when you got 18 them? 19 A Yes, some may contain lots and some of them didn't. 2 0 Some may contain the odd English name that they did 21 not remove, they would show the locations of the 22 rivers, creeks, lakes, it would show the drainage 23 patterns, it would show the topography, which are the 24 contour lines, which shows the relief, the heights of 25 land. They would be in that stage. 2 6 Q And you would have a variety of them and they would be 27 for different geographical locations within the claim 28 area? 29 A That's correct. 30 Q And then on those, what we will call those base maps, 31 okay, can we call those base maps? 32 A Bases, yes. 33 Q And on those you placed information which you received 34 from the hereditary chiefs, directly or indirectly? 35 A On those I would place information that would come to 36 me from Neil Sterritt or from Alfred Joseph, this base 37 from a north-south perspective and I also indicated 38 that because Lou Skoda had produced a series of maps 39 on an east-west perspective, to be consistent with 40 that I adopted an east-west perspective also. So 41 there was a transitional stage here from the 42 north-south bases to the east-west bases. So this 43 particular base that I had here may not have been good 44 enough for me any more based on the east-west 45 perspective because maybe the information may have ran 46 off. So I would have to send those, I had information 47 that I would sent to Terra Surveys, or I had negatives 16004 M. George (For Plaintiffs) Cross-exam by Ms. Koenigsberg 1 of these particular bases and I would send them back 2 to them and tell them that I want this on an east-west 3 perspective now that that's the format that I will be 4 working under. So there is that whole transitional 5 stage also. 6 Q Okay. So you had a variety of bases? 7 A Yes. 8 Q And they had a variety of information put on them by 9 Terra? 10 A As they provided it to me, yes. 11 Q And they provided them to you? 12 A Yes. 13 Q And then you put a variety of information which you 14 received, directly or indirectly, from the hereditary 15 chiefs, that is you either got it yourself or Alfred 16 Joseph or Leonard George or Neil Sterritt, whoever -- 17 A That's correct. 18 Q -- collected it and gave it to you? 19 A Hm-hmm. 20 Q And you transferred it on to the variety of bases? 21 A That's correct. 22 Q And at any one time -- well, let's not talk about any 23 one time -- in March of 1987, when you wrote this 24 opinion, you had in your possession the variety that I 25 have described or a variety? 26 A Yes, that's correct. 27 Q And some of that variety got attached to 28 interrogatories? 29 A Yes, that's correct. 30 Q And some of the variety didn't? 31 A That's correct. 32 Q Do you know any reason or what was the reason why some 33 of the variety did not get attached to 34 interrogatories? 35 A Because that particular base may not have been 36 prepared at the time that interrogatory was done. 37 Q Okay. So it might be because you didn't have a base 38 of the geographical location for which the hereditary 39 chief was going to say that was his territory? 40 A That could be correct, or I may have had a base and 41 that information at the time of that particular 42 interrogatory was done, I may have had a base but I 43 may not have completed it or may not have started that 44 particular base. 45 Q Okay. Or might it also be the case that you would not 46 have completed the information gathering? 47 A That could also be, yes. 16005 M. George (For Plaintiffs) Cross-exam by Ms. Koenigsberg 1 Q Okay. 2 Q I think I understand. Now, I would like to go to the 3 information which you put on to the bases that you had 4 in March of '87, as you have described it? 5 A Yes. 6 Q In 1987, as you have described in your report of 1987, 7 you describe sources of information beginning at page 8 four and it goes over to page five. In March of '87 9 you had completed field trips with hereditary chiefs 10 yourself? 11 A That's correct, yes. 12 Q You had more information coming from Neil J. Sterritt 13 and you had a considerable amount of information in 14 hand from Neil J. Sterritt? 15 A That's correct. 16 Q Would most of the information that you had to come 17 from Neil J. Sterritt, as you described it in your 18 report, have pertained to the Gitksan? 19 A Most of them. There are instances where he had 20 conducted feel trips in the Wet'suwet'en territories. 21 Q Were there just the two territories that you received 22 information from him on for the Wet'suwet'en? 23 A No, I believe there may be three. 24 Q Could be three? 25 A Maybe four. 26 Q Okay. But the vast majority of the information that 27 you were to receive and had received from Neil 28 Sterritt in March of 1987, was for the Gitksan 29 territories? 30 A That's correct, yes. 31 Q As you have explained on page six of your report, you 32 had completed data gathering from Alfred Joseph and 33 the other Wet'suwet'en chiefs and you had utilized 34 that? 35 A That's correct, yes. 36 Q And on page five as well, in the second full 37 paragraph, beginning with respect to the topographic 38 place names? 39 A Hm-hmm. Yes. 40 Q You refer to Alfred Joseph and, I am sorry, I am 41 really thinking of the first paragraph there: "I have 42 interviewed Alfred Joseph and Leonard George on the 43 Wet'suwet'en boundaries. I have also requested the 44 assistance of Gisdaywa in reviewing earlier 45 research..." that was the research of Alfred Joseph 46 which had been done earlier? 47 A Yes. 16006 M. George (For Plaintiffs) Cross-exam by Ms. Koenigsberg 1 Q "...and he had provided me with that data of specific 2 landmarks within the Wet'suwet'en territory." 3 A That's correct. 4 Q Is it fair to say that in March of '87, when you wrote 5 this opinion, you, at that time, thought that you had 6 essentially completed the research to be done by way 7 of Alfred Joseph, Leonard George, in fact everyone 8 related to the Wet'suwet'en territories but you were 9 still working or anticipating information coming from 10 Neil Sterritt, either with respect to the territories 11 that he was doing or giving you information on in the 12 Wet'suwet'en or the Gitksan? In other words, it's the 13 research of Neil Sterritt that is incomplete, that's 14 come to you in March of '87? 15 A I can't get into his mind and decide whether his 16 research is incomplete or not. 17 Q No, you say that it's incomplete. 18 A It says on page 2 that the whole process is draft 19 maps. 20 Q I understand that. You are describing -- 21 A As long as you understand that is all draft maps for 22 the reasons as I indicated, they were never finalized. 23 Q In this report of March of '87, you were describing 24 the information-gathering process that you had gone 25 through, correct, to March of '87, and you're telling 26 us what else you anticipate in March of '87 is still 27 to happen? 2 8 A I am anticipating my time line here: "At this time I 29 have not completed any of the final boundaries of the 30 individual..." "...any of the final boundaries of the 31 individual house territories. I anticipate this work 32 will be completed in advance of the trial so that 33 these maps can be utilized during the course of the 34 trial." 35 Q Yes. 36 A I am anticipating my -- 37 Q That's right. And you are anticipating, if we go to 38 that, that's -- what page were you just reading from? 39 A Page 3. Or was that the page you were referring to? 40 Q Well, I had gone on to the sources of information. 41 Yes, page 3, the last paragraph: "At this time..." 42 March of '87, "...I had not completed any of the final 43 boundaries of the individual house territories. I 44 anticipate that this work will be completed in advance 45 of the trial so that these maps can be utilized during 46 the course of the trial." 47 That was your opinion of the state of your 16007 M. George (For Plaintiffs) Cross-exam by Ms. Koenigsberg 1 information and how long it was going to take to 2 complete it in March of '87, correct? 3 A At March, as of March, '87, it says, "I have not 4 completed any", I believe that should be "I have not 5 completed all of the final boundaries." 6 Q But you anticipated that you could complete that work 7 by -- well, in advance of trial, by May of '87, or May 8 11th or May whatever? 9 A Yes, I had anticipated that I could but I later 10 realized that I couldn't. 11 Q Okay. When you formed the opinion that you could 12 complete it, you had in mind what you wrote on pages 13 four through the balance, but specifically four 14 through six, that is, that you still had information 15 to come to you from Neil Sterritt, you tell us that 16 you knew that, the actual research was not complete 17 and Neil Sterritt was still researching and was giving 18 you the information as it came to him; is that 19 correct? 20 A I would have to read this and get the context in which 21 I am writing this. 22 Q Look at page five, the last full paragraph: "In 23 summary, the vast majority of the data which I have 24 recorded on the maps has come from the hereditary 25 chiefs. I gathered a certain amount of this data 26 directly, I also have relied extensively on the data 27 gathered by Neil Sterritt between 1975 and the present 28 time. This research is continuing. Neil Sterritt is 29 providing me with further information and data with 30 respect to specific house territories." 31 A Yes, that's what it says there, yes. 32 Q March of '87, Neil Sterritt's research, that he is 33 going to provide to you so that you can complete the 34 individual house territories, is continuing? 35 A That's what it says here, yes, that's correct. 36 Q Do I understand that from the information that you had 37 in March of '87, you anticipated that it shouldn't 38 take too much more or if shouldn't take longer than 39 between March of '87 and May of '87 to complete that? 40 A I would have to know at what particular stage I was at 41 at this particular time to say that. 42 Q Well, you said that, didn't you, in your report? 43 A Yes, this is in my report. 44 Q It was your opinion in March of '87? 45 A Yes. 46 Q All right. And that opinion was based on this 47 information, that is, the information you have 1600? M. George (For Plaintiffs) Cross-exam by Ms. Koenigsberg 1 outlined in your opinion? 2 A Yes. 3 Q And that information that you told us in your opinion 4 in March of '87 was that you still had information to 5 come from Neil Sterritt? 6 A Yes, that's what's written in there. 7 Q But when we read what you said about Alfred Joseph and 8 Leonard George and so on, that data gathering 9 information was complete at that time? 10 A At that time, yes. 11 Q And you were still in the process of finalizing the 12 boundaries based on the information that you had in 13 March of '87? 14 A Based on information that I had, yes, it indicates in 15 here that they are all draft maps. 16 Q Yes, they are all draft maps but the information 17 gathering process, the research done by the people 18 that you relied on, and that you did yourself, was 19 complete except for Neil Sterritt? 20 A I had only been on a few field trips and I did not 21 research these particular maps extensively as was done 22 with the affidavit process at this time. 23 Q I understand that. I am looking at March of '87 when 24 you wrote this opinion. At that time you believed 25 that you had completed all of the information 26 gathering that results in the lines on the maps, 27 except for the information to come from Neil Sterritt? 28 A That would be correct, yes. 29 Q So you were engaged in, if I understand it, in March 30 of '87, with your eye on May of '87, in finalizing it, 31 if I can put it that way, individual house maps, for 32 review by the hereditary chiefs? 33 A That would be correct, yes. 34 Q Now, in May — in May of '87, May 11th to be precise, 35 the trial commenced? 3 6 A Hm-hmm. 37 Q And — 38 A Yes. Sorry. 39 Q And you had produced a map? 40 A Yes, I did. 41 Q And that was what is now overlay number eight? 42 THE COURT: Exhibit 5, isn't it? 43 MS. KOENIGSBERG: Yes. What happened to it? 44 THE REGISTRAR: Five is — they have a sheet over it. 45 THE COURT: It's the colour-coded — 46 MS. KOENIGSBERG: Maybe we could just look at it. 47 THE COURT: Perhaps the witness could look at it rather than 16009 M. George (For Plaintiffs) Cross-exam by Ms. Koenigsberg 1 disturb whatever is there, if it's inconvenient to 2 disturb it. 3 MS. KOENIGSBERG: We are looking at, marked as Exhibit 5, and 4 that is the map that you produced for the commencement 5 of the trial? 6 A Based on information that I had at the time, yes. 7 Q Right. Okay. 8 THE COURT: That's overlay seven, is it? 9 MS. KOENIGSBERG: 10 Q Is that overlay seven or overlay eight, Mr. George? 11 A I believe we indicated at the time that particular map 12 was produced and the time the overlay was produced 13 there was a minor change made to the original base 14 that was forwarded to Mr. Skoda. 15 THE COURT: You have one that's made 7/'87, seven, and you have 16 one made 20th, which is and eight. We had filed 17 Exhibit 5 before May 20th, although then only for 18 identification. So it must be seven. 19 A At the time that particular base was produced there 20 was a minor change made to the territory of Amagyet, I 21 believe, A-M-A-G-Y-E-T, so it wouldn't be the same as 22 the overlay, your honour. 23 THE COURT: Is that Amagyet? 2 4 A A-M-A-G-Y-E-T. 25 MR. RUSH: Excuse me, Exhibit 5 for identification was exhibited 26 on May 20th in '87. 27 THE COURT: All right. So it may be seven or eight. 28 MR. RUSH: It's eight. 29 THE COURT: It's eight? All right. 30 MS. KOENIGSBERG: 31 Q You can confirm that, can you, Mr. George? 32 A I don't know what exhibit it is. 33 THE COURT: I believe what Mr. Rush says. 34 MS. KOENIGSBERG: 35 Q The only change between overlay map seven and overlay 36 map eight, as far as you know, is the date or Amagyet? 37 A No, there are a few labeling differences that appear 38 on my map, that is as they appear on that particular 39 overlay map. 40 Q It's essentially the same information as in map five? 41 A Except for those few minor changes. There was the 42 change to the boundary and some of the labeling that 43 appears on that overlay is not the same as the 44 labeling that appears on my map. 45 Q Map five, Exhibit 5, I should say, not map five to 46 confuse it with overlays, Exhibit 5 was the map that 47 you were shooting for in your opinion in March of '87; 16010 M. George (For Plaintiffs) Cross-exam by Ms. Koenigsberg 1 is that correct? When you said that, on page 3, "I 2 anticipate that this work, that is the completion of 3 the final boundaries of the individual house 4 territories, will be completed in advance of trial so 5 that these maps can be utilized during the course of 6 the trial." 7 Leaving aside that there may be individual house 8 territory maps, map five or Exhibit 5 is the map 9 showing the external and internal boundaries based on 10 all of the information that you had by May of '87 when 11 it was completed; is that correct? 12 A That would be fair, yes. 13 Q Now you have told us that you were working, the plan, 14 plan A or 1, was to work on individual house 15 territories and then put them all together? 16 A No, I would have had a pretty good idea where the 17 external and internal boundaries were. I would have 18 probably have produced an overlay first and then gone 19 to the individual. 20 Q In fact there are a number of external boundary 21 overlays, are there not, that were produced? 22 A Yes, yes. 23 Q That were produced between '85 and '87? 24 A Yes, there are a number number produced. 25 Q But map five, are you the person that delivered it to 26 Peter Grant for putting it -- for presenting it at 27 trial? 2 8 A Map five was produced and put on the wall at the 29 office in Smithers and next thing I know it was in 30 court. I didn't intend it to be produced for court, 31 it was just an information map that I had produced it 32 would be on the wall in the office in Smithers. And 33 it ended up in court. 34 Q Sorry. Are you now -- you're not talking about 35 Exhibit 5, you're talking about map five? 36 A That one, yes. 37 Q Exhibit 5 that we have looked at which was produced at 38 trial, you have agreed with me is the map that you 39 were shooting for when you described the final product 40 of your research and your mapping on page 3 in your 41 opinion? 42 A Yes, it may have been. 43 Q All right. You were aware that Alfred Joseph was 44 called as a witness at trial while the trial was still 45 in Smithers, correct? 46 A Yes, I am aware of that. 47 Q And that was in June of 1987? 16011 M. George (For Plaintiffs) Cross-exam by Ms. Koenigsberg 1 A That's correct, yes. 2 Q And you were present during some or all of the 3 evidence that he gave in Smithers? 4 A I was present during some of it, yes. 5 Q And you understood that he was going to give evidence 6 about research resulting in the boundaries being drawn 7 on the maps that he had given to you; is that correct? 8 A I understood he was going to be giving evidence. I 9 didn't know what direction his evidence would be 10 going, no. 11 Q You didn't know that he was going to give evidence 12 based on the research that he had done, on house 13 territories and boundaries? 14 A No, I don't believe I was made aware of the type of 15 evidence he was going to give. 16 Q You were aware that as a result of a ruling by the 17 Chief Justice about the nature of that kind of 18 evidence, that is the evidence of the hereditary 19 chiefs about their territories being given by another 20 person, in that case Alfred Joseph, was hearsay? 21 A Yes. 22 Q And it was as a result of that ruling, I believe you 23 have told us, or your understanding of that, that the 24 territorial affidavit process was begun? 25 A That's correct, yes. 26 Q And you were then retained to participate in that 27 process? 28 A Yes. 29 Q I believe those were your words but you were already 30 working on the project but -- the mapping project -- 31 but you specifically at that time, in June or July or 32 whenever it was of 1987, directed your efforts toward 33 the territorial affidavit project? 34 A That's correct, yes. 35 MS. KOENIGSBERG: Is this a convenient time? 36 THE COURT: Yes. Most of us, particularly Mr. Reporter, would 37 appreciate a few minutes, I think. 38 None of us would want to rush things along but some 39 of us might appreciate an indication, should I have 40 the judges' kitchen open for lunch, if we have one? 41 MS. KOENIGSBERG: Counting my friends re-examination I would 42 think so. I would think I might be close to it. 43 (Proceedings adjourned for short recess) 44 45 46 47 16012 M. George (For Plaintiffs) Cross-exam by Ms. Koenigsberg I hereby certify the foregoing to be a true and accurate transcript of the proceedings herein to the best of my skill and ability. 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 Wilf Roy Official Reporter 16013 M. George (for Plaintiffs) Cross-exam by Ms. Koenigsberg 1 (PROCEEDINGS CONTINUED PURSUANT TO MORNING RECESS) 2 3 THE REGISTRAR: Order in court. 4 THE COURT: Koenigsberg. 5 MS. KOENIGSBERG: 6 Q Mr. George, I think we'd got up to the territorial 7 affidavit process? 8 A Yes. 9 Q If I understood your earlier evidence about that 10 process, you went out beginning sometime after June of 11 1987? 12 A That's correct, yes. 13 Q And you would have visited various hereditary chiefs 14 or elders who might be going to swear affidavits as to 15 the boundaries of the territories? 16 A That's correct. Yes. 17 Q And when you visited these people, you had a form of 18 draft affidavit? 19 A No. I had information as to where that particular 20 boundary was at the time, and I had information of the 21 names that were within that territory or on the 22 boundary of the lakes and rivers and creeks. Yes. 23 Q You had draft maps? 24 A That's correct, yes. 25 Q And were the draft maps that you had the draft maps 26 that you described preparing in March of '87 in your 27 opinion? 28 A They would be the ones, yes, I had to complete them 29 all at the time and the ones I had had completed, yes. 30 Q And you had produced what's been marked -- what was 31 marked at the trial as Exhibit 5 and it in fact shows 32 the internal house territory boundaries? 33 A That's correct. Yes. 34 Q And were there then individual house territory maps 35 for each one that is shown on Exhibit 5? 36 A At that time? 37 Q Yes. 38 A Yes. 39 Q And I believe that you described some draft maps 40 earlier in your evidence and you said that you still 41 have them? 42 A I also indicated that some of those bases were already 43 on the east-west perspective and some of those bases 44 could contain the information that was in the 45 affidavits, the boundaries, and those perhaps were 46 utilized for the production of the boundaries that 47 would appear on the overlay map 9B. 16014 M. George (for Plaintiffs) Cross-exam by Ms. Koenigsberg 1 Q Okay. If we jump ahead to 9A and 9B too fast I'm 2 going to get confused, so let me be sure that I 3 understand you. You took draft maps that had the 4 information that you had to date with you to the 5 interviews with the persons who were going to 6 potentially swear the affidavits? 7 A That is correct. Yes. 8 Q Okay. And that corresponded to the information which 9 would be shown on Exhibit 5? 10 A That's correct. 11 Q Okay. And you made notations on some of those maps in 12 response to what people said to you during that 13 interview process if there was a change? 14 A I would have made the changes to that map. I don't 15 know if I would have made notations. I may have 16 identified -- if a geographical feature may have 17 moved, I would have identified it on that map, yes. 18 Q And you took that back to your office? 19 A That's correct. 20 Q Along with any notes of the interviews? 21 A That's correct. 22 Q And that would have gone into the process of producing 23 the final territorial affidavit? 24 A That's correct. Yes. 25 Q Okay. When you went to interview the person again, 26 and it would have been you in many instances who went 27 back with the final affidavit to be sworn? 28 A Many instances. Yes. That's correct. 29 Q If the person didn't speak English you would have had 30 a translator? 31 A That's correct, yes. 32 Q And in many instances that was Mr. George Holland? 33 A In many instances it was George Holland. On a few 34 instances it was Victor Jim, yes. 35 Q And looking at an example of that one, Mary Joseph was 36 a person who swore a territorial affidavit? 37 A That's correct. Yes. 38 Q And who does not speak English well? 39 A That's correct, yes. 4 0 Q And George Holland went with you and you -- when you 41 went over the territorial affidavit that she swore 42 with him? 43 A That's correct. Yes. 44 Q Could we look at the territorial affidavit then of 45 Mary Joseph, and it is Exhibit 667 and I will just 46 hand up a spare so we have it. 47 A Are we finished with these? 16015 M. George (for Plaintiffs) Cross-exam by Ms. Koenigsberg 1 MS. KOENIGSBERG: Is that the draft? Yes. Could we mark the 2 binder that I've just handed up as the next exhibit? 3 THE COURT: Yes. 4 THE REGISTRAR: Exhibit 1023. 5 6 (EXHIBIT 1023: A.G. Canada Cross-exam book/M. George) 7 8 THE COURT: It didn't stay empty long, Miss Koenigsberg. 9 MS. KOENIGSBERG: Pardon? 10 THE COURT: It didn't stay empty long. 11 MS. KOENIGSBERG: It won't get very full. I promise. And if we 12 make the territorial affidavit of Mary Joseph, tab 1. 13 14 (EXHIBIT 1023-1: Territorial Affidavit of Mary Joesph) 15 16 MS. KOENIGSBERG: 17 Q And in this territorial affidavit Mary Joseph is 18 swearing to the boundaries of McQuarrie Lake area 19 first; is that correct? 20 A That's correct. Yes. 21 Q And that is an area which is claimed by Smogelgem? 22 A That is a Smogelgem territory. I believe it's under 23 Goohtseawh, who was in the house of Smogelgem. 24 Q Under -- I'm sorry, under whom? 25 A Smogelgem. It would be the same house. 26 Q Yes. It's a Smogelgem territory? 27 A Yes. 28 Q Did you say it was under some other sub chief? 29 A I believe it may be under Goohtseawh, but it's -- 30 Goohtseawh is under Smogelgem, yes. 31 Q Okay. And could you spell that? 32 A G-o-o-h-t-s-e-a-w-h. 33 THE COURT: I didn't get it. I'm sorry. 34 MS. KOENIGSBERG: 35 Q G-o-o-h-t-s-e-a-w-h? 36 A That's correct, yes. 37 Q In paragraph 5 of this affidavit, beginning the fifth 38 line up -- 39 A Uh-huh. 40 Q -- you're describing the western boundary of that 41 territory; is that -- could I -- 42 A Beginning on -- 43 Q "Here the boundary runs west along the height of hand 44 south of...", and then there's the Wet'suwet'en name 45 for Emerson Creek in quotes there? 4 6 A I haven't found it on here. 47 Q Oh, sorry, the sixth line up from -- on paragraph 5. 16016 M. George (for Plaintiffs) Cross-exam by Ms. Koenigsberg 1 A Okay. 2 Q Have you got that, "Here the boundary runs west..."? 3 A Yes. 4 Q "...along the height of land south of", and then 5 there's the Wet'suwet'en name for Emerson Creek? 6 A That's correct. 7 Q And then the English "(Emerson Creek) to the height of 8 land at its head waters." 9 A That's correct. 10 Q "Here it runs north along the height of land west of 11 (Emerson Creek) to the height of land at the head of 12 Dockrill Creek."? 13 A That's correct. 14 Q There is no Wet'suwet'en name there for Dockrill 15 Creek; correct? 16 A No. It would have been a name that I put in there to 17 help assist me in finding that particular territory. 18 Q Okay. "Here it runs east along the height of land 19 north of Dockrill Creek..." 20 A That's correct. 21 Q "...to the height of land at the head of Edward 22 Creek."? 23 A That's correct. 24 Q And Edward Creek has no Wet'suwet'en name? 25 A No, it doesn't. 26 Q "Here the boundary runs east along the height of land 27 north of Edward Creek.", and there is a Wet'suwet'en 28 feature -- named feature there "Yen Staan"? 29 A That's correct. It's Y-e-n S-t-a-a-n. 30 Q Which is an unnamed hill on government maps. 31 Pausing there, when you were explaining the 32 boundary as described in the affidavit to Mary Joseph, 33 she would not have understood the two creeks, Dockrill 34 and Edward, because they have no Wet'suwet'en name; 35 isn't that correct? 36 A I believe she may have indicated that they may have 37 had a name, but she didn't remember them at the time, 38 and on the English maps they're identified as Edward 39 and Dockrill. 40 Q Did you attend when Mary Joseph was cross-examined on 41 her affidavit? 42 A Yes. 43 Q Okay. And this is an excerpt from the 44 cross-examination on her affidavit of Mary Joseph 45 dated December 7th, 1988, and you've indicated that 46 you were present? 47 A I believe I was. Yes. 16017 M. George (for Plaintiffs) Cross-exam by Ms. Koenigsberg 1 Q And on page 11 Mr. Frey is cross-examining Miss 2 Joseph, and beginning at line 37: 3 4 "Q Now, do you know a creek that the white 5 people call Dockrill Creek? 6 A I also don't know that one. 7 Q Mr. Holland, do you know a name for Dockrill 8 Creek? 9 All right. And do you know a creek that 10 the white people call Edward Creek? 11 A No, I don't know any English names. 12 Q All right. And Mr. Holland, do you know a 13 Wet'suwet'en name for Edward Creek?" 14 15 Mr. Holland isn't answering here, but there is no 16 Wet'suwet'en name; isn't that correct? 17 A That's correct. Yes. 18 Q 19 20 "Q Now, when -- Mrs. Joseph, when you swore the 21 affidavit, did -- do you recall when Mr. 22 Holland read to you the boundary 23 description? 24 A Yes. 25 Q And when he read the boundary description to 26 you did -- did he use any English names? 27 A No." 28 29 Is it fair to say that when you were met with that 30 kind of problem, that there would be landmarks or 31 features with no Wet'suwet'en name having an English 32 name, that the person swearing the affidavit would 33 have to take your word for it that that's where the 34 boundary went? 35 A No, no. She identified the boundary being -- as being 36 south of Yen Staan, which is a feature that is 37 identified on the map, and identified the boundary as 38 being -- where is it on this affidavit -- "boundary 39 runs west along the height of land", the boundary 40 being south of Yeelces Kwe, Y-e-e, slash the 1, c-e-s 41 K-w-e, identified as Emerson Creek on the English map, 42 and she identified where her boundary was in relation 43 to the Yen Staan. And based on that information, I 44 drew -- I described that particular area in here and 45 identified those particular creeks so that that 46 boundary can be drawn in relationship to those 47 features on the map. But when the affidavit was read 1601? M. George (for Plaintiffs) Cross-exam by Ms. Koenigsberg 1 to her the affidavit was translated and those English 2 names were read to her. 3 Q Yes. The English names would be read to her? 4 A Yes. 5 MS. KOENIGSBERG: But they would have no meaning, would they? 6 MR. RUSH: Excuse me, how can this witness say that? How could 7 he answer that? 8 MS. KOENIGSBERG: Well — 9 THE COURT: Well, there is an answer to that question. 10 MR. RUSH: There is an answer to that question. 11 THE COURT: Yes. 12 MR. RUSH: But the answer to that question comes from Mary 13 Joseph. 14 THE COURT: Well, I don't want to make suggestions, but it seems 15 to me that particularly a person who's there to 16 observe the proceedings and has a familiarity in both 17 languages might be able to answer that question. She 18 might say several times that she did hear it. I 19 don't -- what did she say? "I don't know any English 20 names." It may be a conclusion he's reached, but it 21 seems to me that it might have some weight, but we'll 22 probably -- we're probably wasting time. 23 THE WITNESS: If you look at paragraph 10 it says right in 24 there: 25 26 "I know the boundary and the geographic 27 points in the territory by their 28 Wet'suwet'en names. I know some of these by 29 their English names. I do not know all of 30 the English names..." 31 32 MS. KOENIGSBERG: 33 Q Yes. And you agree that she didn't know -- you have 34 no reason to believe that she wasn't telling the truth 35 or didn't understand when she was being cross-examined 36 that two of the English names which she didn't know 37 were Edward Creek and Dockrill Creek? 38 A That's correct. And I also indicated to you that she 39 had identified the boundary around the Yen Staan area 40 and identified the boundaries of Yeelces Kwe, 41 Y-e-e-1-c-e-s K-w-e. 42 Q Yes. 43 A And then told me where the boundaries were. And when 44 I told her that I had to write it this way so that the 45 boundaries can be drawn on the map, I had to identify 46 these certain features, she understood that and that 47 was translated to her. She may still not know 16019 M. George (for Plaintiffs) Cross-exam by Ms. Koenigsberg 1 Dockrill Creek and Edward Creek. 2 Q Yes. Okay. Now, you were aware that she had never 3 been to that area? 4 A I don't know if I'm aware of that or not. She may 5 have indicated that. I -- that escapes me at this 6 time. 7 Q Okay. Let's just go back to the cross-examination on 8 page 11 just above where I began reading. If we look 9 at line 32, do you see that? 10 A Yes. 11 Q 12 13 "A My grandfather mentioned that name to me. 14 I'm not familiar with that area, but I heard 15 Johnny David and Moses David mention that 16 area to me. 17 Q You've never gone to that creek yourself? 18 A No." 19 20 And then on to the Dockrill Creek and so on. Is 21 that — 22 A That's what it says. 23 Q Yes. And was that your understanding when you went to 24 her with the information that you had on the draft map 25 and the features and so on, that her information was 26 from her grandfather? 27 A That's correct. 28 MS. KOENIGSBERG: Okay. 29 MR. RUSH: Just so that we can be clear about that, my lord, the 30 reference is to a creek and my friend's use of the 31 word area -- 32 THE COURT: Yes. 33 MR. RUSH: -- does not accord with the examination starting at 34 26 where the Yeelces Kwe is the particular reference 35 place. 3 6 THE COURT: Yes. 37 MS. KOENIGSBERG: 38 Q Well, I suppose we can argue at the end of the day 39 what -- let me ask you, in the course of your going 40 over the affidavit with her, did Mrs. Joseph indicate 41 to you that she had been to that area? 42 A I don't remember, but she definitely knows that it's 43 in -- Yeelces Kwe is in the territory, based on the 44 information that she was told. Yes. 45 Q Yes. Do you know what Yeelces Kwe, the creek that's 46 being referred to, is? It's Y-e-e-1, new word, C-e-s, 47 new word, K-w-e. Is that Emerson Creek? 16020 M. George (for Plaintiffs) Cross-exam by Ms. Koenigsberg 1 A Yes, I believe it is. 2 Q Yes. And that's the creek that's immediately south of 3 Dockrill Creek, isn't it? 4 A I'd have to look at that. 5 Q Well, I'm going to have to put before you a map I can 6 read, and this map is another map. Can you -- you can 7 read it? 8 A Yes. This is — it's a federal series 1 to 250,000 — 9 Q Okay. 10 A -- topographic map, and there is a creek identified as 11 Dockrill. 12 Q Yes. 13 A But the creek, you're asking me if immediately south 14 of Dockrill Creek is Emerson Creek. I'd have to say 15 no. There's a creek in between there. 16 Q Yes, I'm sorry, but in this territory there Emerson 17 Creek is -- 18 A Is identified as Yeelces Kwe, yes. 19 Q Yes, and it's in the southern part of the territory? 20 A Southern part of the territory. 21 Q And as we go north and talk about the features that 22 are described in the affidavit, the next one we -- 23 north is Dockrill? 24 A Dockrill. 25 Q And then just immediately north of that is Edward? 26 A That's correct. 27 MS. KOENIGSBERG: Okay. Thank you. Okay. The next area I'd 28 like to take you to -- sorry, could the 29 cross-examination of Mary Joseph, the extract, be 30 marked as tab 2? That would be 1023, tab 2. 31 THE COURT: Yes. 32 33 (EXHIBIT 1023-2: Excerpt from Cross-examination on 34 Affidavit of Mary Joseph) 35 36 MS. KOENIGSBERG: 37 Q I want to talk about the Smogelgem territory that was 38 sworn to by Antoine Tom and has in it Harold Price 39 Creek. 40 A Yes. 41 Q Okay. And could we look at the affidavit of Antoine 42 Tom? It was Exhibit 676. Now, 9B shows that 43 Smogelgem territory, and I'm just pointing to it now? 44 A That's correct. Yes. 45 Q And it shows an area which includes two creeks known 46 as Moan Creek, M-o-a-n, and Luhk Creek, L-u-h-k? 47 A That's correct. Yes. 16021 M. George (for Plaintiffs) Cross-exam by Ms. Koenigsberg 1 Q If you look at Antoine Tom's territorial affidavit 2 where he's describing this area in paragraph 5, I 3 believe that the -- beginning about the tenth line 4 down begins: "The boundary crosses the Ses Kwe" S-e-s 5 K-w-e "here and runs northeast." Do you see that? 6 A Yes, I've got it. 7 Q If you read all the way to the bottom, would you agree 8 with me that that description does not include those 9 two creeks? And if I can just -- I don't mean to halt 10 you in your progress, but I might be able to help you. 11 It's my understanding that overlay 4 is consistent 12 with the territorial affidavit description in 13 paragraph 5, but that 9B is not? 14 A Your honour, the lines that she's referring to "The 15 boundary crosses the Ses Kwe here and runs northeast 16 along the height of land south off the Suskwa River to 17 C'etneey Dzel.", and that's identified as Netalzul 18 Mountain, that isn't even nowhere near those two 19 creeks that she's talking about, so why should it 20 include those creeks. 21 THE COURT: Why should it include those creeks? 22 THE WITNESS: Yes. There's no reason to include those creeks 23 in this particular area. 24 THE COURT: All right. 25 MS. KOENIGSBERG: 26 Q When you read that boundary as it's described in 27 paragraph 5, is it not consistent with the boundary 28 that's drawn in overlay 4 for this area rather than 29 9B? If you were — 30 A No, no. This is consistent with the boundary as on 31 overlay 9B. It crosses the Ses Kwe and runs 32 north-west along the height of land south of the 33 Suskwa River -- 34 Q Yes. 35 A -- to C'etneey Dzel, Netalzul Mountain, which is right 36 in this location here. The area that she's referring 37 to, your honour, is way down here. 38 THE COURT: I suppose there's some question about where the 39 headwaters of those creeks are, is there? 40 THE WITNESS: But I identified C'etneey Dzel as being Netalzul 41 and it's nowhere near the two creeks that she's trying 42 to refer me to. 43 THE COURT: All right. Just stop for a moment. Madam reporter, 44 do you need a spelling? 45 THE WITNESS: C'etneey Dzel. C-'-e-t-n-e-e-y D-z-e, slash the 46 1, C'etneey Dzel. Is there another one that you want? 47 THE COURT: The name of the mountain? 16022 M. George (for Plaintiffs) Cross-exam by Ms. Koenigsberg 1 THE WITNESS: Netalzul, N-e-t-a-l-z-u-1, Mountain. 2 MS. KOENIGSBERG: 3 Q If you just read down the sixth line up, "Here the 4 boundary runs south-west" -- 5 A Read down six lines up. What are you talking about? 6 Q Move your eye down and it will be six lines up, and 7 stop it at six lines up: 8 9 "Here the boundary runs south-west to a point 10 on the north bank of Harold Price Creek." 11 12 See that? "Here the boundary runs south-west."? 13 A 1, 2, 3, 4, 5, 6. I've got on the sixth line, "Kwe 14 Harold Price Creek to Kees Aggeel Niitggez." 15 Q Keep going and then -- I'm sorry, it was the fifth 16 line up. "Here the boundary runs"? 17 A Oh, okay. Yes, I've got that. 18 Q Okay. 19 20 "Here the boundary runs south-west to a point 21 on the north bank of (Harold Price Creek), 22 this point being three miles upstream from 23 the confluence of (Blunt Creek)." 24 25 A That's correct. 26 Q Wouldn't that cut off this area and bring you up here 27 making this the boundary? 28 A There's the feature that is identified on here, your 29 honour, K-e-e-s A-g-g-e-e, slash the 1, 30 N-i-i-t-g-g-e-z, which is a feature on the boundary of 31 Smogelgem. It's this ridge right in here. 32 MR. RUSH: Pointing on the most easterly line. 33 THE WITNESS: Yes. And here the boundary runs south-west to a 34 point on the north bank off the Suskwa River, the 35 Harold Price, this point being three miles upstream 36 from the confluence of Xaaz Kwe and Blunt Creek, and 37 here's Xaaz Kwe and Blunt Creek, so you go three miles 38 upstream and identify that point. So it doesn't cut 39 it off, no. 4 0 MS. KOENIGSBERG: 41 Q Okay. So you say it is consistent with that and not 42 consistent with overlay 4 which shows it without that, 43 if I can call it, the Moan Creek-Luhk Creek hump? 44 A What's in here is on overlay map 9B and depicts the 45 boundary of Smogelgem. 46 Q Were you present during the cross-examination of 47 Antoine Tom on his affidavit? 16023 M. George (for Plaintiffs) Cross-exam by Ms. Koenigsberg 1 A Yes, I was. 2 MS. KOENIGSBERG: And if we could just first mark Antoine Tom's 3 affidavit as the Exhibit 1023, tab 3. 4 THE COURT: 4 — oh, yes, I'm sorry, this document will be 5 1023-3. 6 7 (EXHIBIT 1023-3: Antoine Tom's affidavit) 8 9 MS. KOENIGSBERG: 10 Q And if we go over to page 9955, you may recall there 11 was some considerable difficulty in identifying 12 precisely where Mr. Antoine Tom should stand to look 13 across and identify a particular area, so the whole 14 first part of this is bringing us up to an 15 understanding of where we're standing. And if you 16 look at page 9955, line 17: 17 18 "Q All right. If you're standing at the point 19 where Loots wenii ts'anlii..." L-o-o-t-s 20 w-e-n-i-i t-s-'-a-n-1-i-i. 21 22 And do you know what the English name for that 23 feature is? Did you understand that to be Antoine 24 Tom's name for Blunt Creek? 25 A No. No, I didn't. 26 Q You don't know that -- if that's Blunt Creek? 27 A It isn't. It isn't Blunt Creek. 28 Q But that was his understanding? 29 A No, it isn't. 30 Q That's what he was describing? 31 A No. 32 Q What was he describing? 33 A Loots wenii ts'anlii is a creek that comes from a lake 34 identified as Loots wenii. Ts'anlii means flowing 35 from it. 36 Q Yes. And if -- and if we're talking about a creek 37 flowing from -- 38 A Loots wenii. 39 Q Yes. Are we talking about Blunt Creek? 40 A No, we're not. 41 Q What are we talking about? 42 A A creek that flows from Loots wenii. 43 Q Does it become Blunt Creek? 44 A It may be. It may further down. 45 Q Okay. Where it flows through the Harold Price Creek, 46 being that creek where it flows into Harold Price 47 Creek? 16024 M. George (for Plaintiffs) Cross-exam by Ms. Koenigsberg 1 A I missed your -- I lost you. 2 Q Okay. The creek that comes from the lake Loots wenii 3 ts'anlii -- 4 A Yes. 5 Q Okay. -- where it flows into Harold Price Creek, do 6 you know where that is? 7 A Yes. 8 Q And where is that? 9 A That is outside the territory of Smogelgem. 10 Q Yes. Is that the place where you told him it was 11 outside his territory that you had to start the 12 description? 13 A No, I started at the confluence of Harold Price Creek 14 and Blunt Creek as it says in there. 15 Q Yes. All right. Do you know -- did you understand 16 when Mr. Antoine Tom was being cross-examined and he's 17 standing, being placed verbally, at the point where 18 the creek we've been talking about flows into the 19 Harold Price Creek, and it goes on and says "And you 20 are looking across at the east bank", meaning Harold 21 Price Creek, "is that Smogelgem's territory there?" 22 And it gets a little confused here, and if you go 23 right down to line 32. 24 25 "Q That's right. Now listen to my question. 26 If you're standing at that point..." 27 28 We're still at that same point where Loots wenii 29 ts'anlii flows into the Harold Price Creek. 30 31 "Q If you're standing at that point on the west 32 bank and you're looking over to the east 33 bank, that is Smogelgem's territory over 34 there on the east bank? 35 A No, I wouldn't be -- wouldn't be his 36 territory. That would be Dew sum ts'uk's 37 territory." 38 39 That's D-e-w s-u-m t-s-'-u-k-'s territory. And 40 then if we skip down to the spelling, line 42: 41 42 "Q It's not Smogelgem's territory, it's Babine 43 territory? 44 A Yes. 45 Q And if someone said that was Smogelgem's 46 territory they would be wrong? 47 A If anybody said that they would be wrong." 16025 M. George (for Plaintiffs) Cross-exam by Ms. Koenigsberg 1 2 Mr. Tom is talking about the area looking across 3 east which is that bulge including Moan and Luhk 4 Creek, is he not? 5 A I don't know how you come to that conclusion. No. 6 Q Where did you think he was standing and looking? 7 A I wouldn't know why they placed him on Loots wenii 8 ts'anlii in the first place, and I'd have to find out 9 which direction he's looking, upstream, downstream 10 or — 11 Q Okay. Well, you can't agree with me that he is saying 12 there that that bulge is Babine country? 13 A No, I can't agree with that. No. 14 MS. KOENIGSBERG: Okay. I want to look now at the Morice Lake 15 area which is -- well, maybe we better mark the 16 cross-examination of Antoine Tom extract as -- 17 THE REGISTRAR: 1023-4. 18 MR. RUSH: Tab 1023-4. 19 THE COURT: Yes. 20 21 (EXHIBIT 1023-4: Extract of Cross-examination on 22 Affidavit of Antoine Tom) 23 24 MS. KOENIGSBERG: 25 Q Now, in relation to Morice Lake there is Goohlaht 26 territory and Woos territory; is that correct? 27 A Can I have something that you're looking at? Yes. 28 Just looking at the map there's a Goohlaht and Woos 29 around Morice Lake. Yes. 30 Q Yes. And 9B shows the Woos territory almost bisecting 31 the Goohlaht territory and stopping short considerably 32 of the external boundary; is that correct? 33 A Stopping short considerably, yes. 34 Q Yes. And do you know that on the other side of the 35 external boundary the Haisla people claim that area? 36 A Yes, I'm aware of that. Yes. 37 Q Okay. Now, were you present when Mabel Critch was 38 cross-examined on her territorial affidavit? 39 A I believe I was. Yes. Can I have her affidavit, 40 please? 41 Q Sure. I'm just handing up the territorial affidavit 42 of Mabel Critch. Now, if we look at the 43 cross-examination, page 10169? 44 A Yes, I have it. 45 Q The very bottom of the page. I'm sorry, it's the 46 cross-examination. 47 A I know. I'm following you. 16026 M. George (for Plaintiffs) Cross-exam by Ms. Koenigsberg 1 Q At the bottom of the page. Got it? I believe it's 2 about line 46: 3 4 "Q Well, now your description brings Woos -- " 5 W-o-o-s, "does it bring Woos right out to 6 the border with the Haisla? 7 A Haisla. 8 Q You know where the Haisla live. They live 9 west of the Wet'suwet'en? 10 A Uh-huh. 11 Q So do you say -- well, is it your -- were 12 you told by your ancestors that Woos ' 13 territory goes right out to that border with 14 the Haisla? 15 A Yes." 16 17 Now, that evidence is not consistent with the 18 boundary as drawn on 9B; would you agree? 19 A Yes, I agree. 2 0 Q And — 21 A I believe she may have been confused here. In the 22 affidavit she identified a hill on the south-west 23 boundary of this particular territory as being Wiil 24 wenii, W-i-i, slashed 1, w-e-n-i-i. 25 Q Okay. 26 A And that's a feature on there that is right on this 27 particular point right here. Right there. 28 Q So you say that if we look at her territorial 29 affidavit -- 30 A Yes. 31 Q -- the boundary as described in that territorial 32 affidavit -- is that paragraph 5? 33 A Yes, it is. 34 Q Is not consistent with her evidence in 35 cross-examination? 36 A That's correct. Yes. 37 Q When you described the boundary to her in the 38 affidavit process, you understood her evidence to be 39 that the boundary did not go to the Haisla external 40 boundary; correct? 41 A She had identified some features to me, your honour, 42 Tadelkeet, T-a-d-e-1-k-e-e-t. The boundary runs along 43 there and runs south-west and south-east along the 44 height of land west and south of Wezden Ben, Morice 45 Lake, W-e-d-z-e-n B-e-n, to Wiil wenii, an unnamed 46 hill on government maps. And Wiil wenii is where I 47 indicated it would be on that map. That's what she 16027 M. George (for Plaintiffs) Cross-exam by Ms. Koenigsberg Submission by Ms. Koenigsberg 1 said when I had gone around the boundaries with her. 2 And in here she may have just been confused because 3 she didn't have nothing to refer to. 4 Q So your evidence is that in the territorial affidavit 5 process she described to you landmarks which you -- 6 A Yes, which is in the affidavit. 7 Q Yes, which you transferred to a description and a map 8 consistent with the boundary being where you have it 9 on 9B? 10 A That's correct. Yes. 11 MS. KOENIGSBERG: Those are all my — oh, yes, can we mark 12 that? 13 THE COURT: Yes, 1023-5 and 6. The affidavit's 5 and the 14 cross-examination is 6. 15 16 (EXHIBIT 1023-5: Affidavit of Mabel Critch) 17 18 (EXHIBIT 1023-6: Excerpt from cross-examination of 19 Mabel Critch) 20 21 THE COURT: Are you going to finish your sentence, Miss 22 Koenigsberg? 23 MS. KOENIGSBERG: Yes. I'm finished with asking questions of 24 the witness, but I do not close my cross-examination, 25 my lord. Yesterday we had some discussion of maps 26 which the witness had identified as still being in 27 Hazelton, and I believe a few days before that there 28 had been identified this body of maps, if I can put 29 them that way, which describe the house territories 30 and which form part of the basis of the territorial 31 affidavits, and thus 9B, which are also in Hazelton. 32 In my submission, I'm not certain what the 33 importance is of the larger planimetric maps, the 34 underlying maps that go to the issue of the final map. 35 We'll have to see those to know. But I think that we 36 can safely assume that the draft territorial house 37 boundary maps that were used and marked on in the 38 process of determining the content of the territorial 39 affidavits, which are the bases of 9B, are crucial. 40 They are, in fact, in my submission, one of the most 41 important forms of information that we have in terms 42 of the major issue in this lawsuit. 43 My friend yesterday suggested that we had not been 44 timely in our request for the underlying facts and the 45 documents, and I would bring to your lordship's 46 attention that in June of 1987 the federal defendant 47 served on my friend a notice of motion in which we 1602? Submission by Ms. Koenigsberg 1 asked for, among many other things, the facts on which 2 the opinions of the following experts are based, 3 Marvin George. We asked for maps, we asked for 4 specifically every kind of document which had been 5 likely disclosed by the information that we had, which 6 was not a list of documents but was the summary 7 opinion of this witness in this witness' case. 8 That motion was adjourned a number of times, but 9 on July 17th, 1987, Murray Adams delivered on behalf 10 of the plaintiffs an affidavit. All of this material 11 is before your lordship many times. In paragraph 14 12 of that affidavit Mr. Adams deposed: 13 14 "I'm informed by Richard Overstall and verily 15 believe that Marvin George is presently on 16 vacation and on his return will be 17 continuing work on the individual house 18 territory maps. Mr. Overstall anticipates 19 that the plaintiffs will deliver Mr. 20 George's complete report including the maps 21 at least 60 days before Mr. George 22 testifies." 23 24 This motion was subsequently argued in July of 1988. 25 Sorry, reserved in July and argued in October. 26 My friends have had more than adequate notice of 27 our request for underlying facts and maps. 28 THE COURT: What was the disposition of the argument? 29 MS. KOENIGSBERG: Well, it wandered off on to Mr. Daly's 30 interviews as the specific order, but in fact of 31 course my friends took it that -- the position on that 32 motion that 60 days was when you would get the 33 underlying facts or the supporting documentation. In 34 Mr. Daly's case the argument went on to what are 35 underlying facts and it was the interviews that we 36 were discussing, but the position taken by my friends 37 and in fact consistent with the order and subsequent 38 orders that your lordship made, it was that the 39 defendants would be given the underlying facts at 40 least by 60 days before the witness was to be called, 41 and that's of course when the reports were to be 42 served, and that is what Mr. Adams had said in his 43 affidavit. That was the affidavit that we had gotten 44 and so we didn't go on and make subsequent motions. 45 We assumed that we would receive the underlying facts 46 60 days before. 47 Now, we did not receive them 60 days before, but 16029 Submission by Ms. Koenigsberg Submission by Mr. Rush 1 when we did receive them by way of a list and 2 subsequently the production of the maps and some of 3 the interviews, the maps described of course were not 4 disclosed on the list nor have they been produced. 5 All this goes to, my lord, is that in my 6 submission those are very important documents. My 7 friend cannot with justice say that we did not ask for 8 them, that we had two years notice of this and this 9 is, you know, a few weeks before this witness comes 10 before you that we then ask for them and it's too 11 late. That's not consistent with the record, and in 12 my submission those underlying draft maps are crucial 13 and they should be produced before the defendants must 14 close their cross-examination. 15 Having said that, when we have those maps and have 16 had an opportunity to look at them, it may be that we 17 will not require Mr. George to be cross-examined on 18 them, that whatever turns on those can be covered in 19 argument. They are produced documents, and my friend 20 can worry about whether he wants further evidence on 21 it. 22 THE COURT: All right. Mr. Willms, do you have any contribution 23 to this? 24 MR. WILLMS: I support what my friend has said, my lord. 25 THE COURT: Thank you. Mr. Rush? 26 MR. RUSH: Well, my learned friend has garbled her understanding 27 of the request made by Mr. Willms yesterday with the 28 nature of her response today. I made no submission 2 9 with regard to the draft maps. I made -- when Mr. 30 Willms made that request, I took that into account and 31 I said, as with regard to the underlying map with 9A, 32 that we would attempt to produce that and in a timely 33 way. And that was my response and that, as I 34 understand it, is what Miss Koenigsberg is now 35 addressing herself to. What she didn't address 36 herself to, conveniently I would point out, is that 37 Mr. Willms made a request for the mylar. 3 8 THE COURT: Yes. 39 MR. RUSH: And that's what my response was directed to yesterday 40 because there were mylar requests made by Miss 41 Koenigsberg's office for which I did say that it was 42 terribly inconvenient for the plaintiffs to produce 43 those at the time that we got the request for them. 44 Now, I just -- as far as we're concerned, and on 45 this particular issue of the working maps, in my view 46 my friends shouldn't leave open their -- and your 47 lordship should not permit the right of the defendants 16030 Submission by Mr. Rush Ruling by the Court M. George (for Plaintiffs) 1 to leave open their cross-examination. Mr. Willms 2 didn't ask for that. What he asked for was that he 3 wanted to see them and then he'd decide what to do, 4 and I think your lordship should be guided by that 5 position, which I frankly can't take any objection to. 6 I think if my friends when they see the documents wish 7 then to do something about them, then you'll hear from 8 both of us no doubt in our respective ways and I 9 think, in my submission, that's the way matters should 10 stand. 11 The particular document that my friend refers to, 12 a motion in June of 1987 that she goes on about, the 13 fact of the matter is that on her own examination 14 today the very documents that were the subject matter 15 of that motion didn't even exist at that time. They 16 were generated as a result of interviews that Mr. 17 George had subsequent to that. 18 THE COURT: Well, I don't think there's any magic in whether her 19 cross-examination's left open or not because even if I 20 made no reservation of that position, the -- an order 21 could be made to reopen the cross-examination anyway, 22 and so I think I'll follow Mr. Rush's suggestion. I 23 won't make any particular order, but I don't -- I 24 don't preclude the possibility of further 25 cross-examination, nor do I preserve it as an absolute 26 right. I think I'll wait to hear what counsel says, 27 and if Miss Koenigsberg satisfies me that further 28 cross-examination is necessary in the interests of 29 fairness and completeness and justice and all those 30 other concepts, then that will be permitted. If it 31 doesn't go that far, well, then probably it won't be. 32 We'll wait to hear what happens then. All right. 33 Thank you. Mr. Rush, do you have some re-examination? 34 35 RE-EXAMINATION BY MR. RUSH: 36 Q Yes. In your cross-examination with Mr. Willms, 37 conducted by Mr. Willms, Mr. George, you were asked if 38 Chief Louie had a wife and you indicated that that was 39 so and that his wife was Cheslatta. And my question 40 to you now is to your knowledge did Chief Louie have 41 more than one wife? 42 A I believe he had two. 43 Q And do you know the nationality of the other wife? 44 A One was Cheslatta and one was Wet'suwet'en. 45 Q You also indicated during the cross-examination that 46 an affidavit of Stanley Williams was prepared without 47 your having reviewed it, following which there was a 16031 M. George (for Plaintiffs) Re-exam by Mr. Rush 1 meeting with Mr. Sterritt and Mr. Williams to go over 2 that affidavit so that it could be plotted by you. My 3 question to you is subsequent to that, was there a 4 second affidavit prepared by Mr. Williams? 5 A Do you want to put that in English? 6 Q Well, to put it short, to your knowledge were there 7 two affidavits that were prepared by Mr. Williams? Do 8 you know if that's so or not? 9 A I believe there was. 10 MR. RUSH: Could the grey book be placed before Mr. George 11 please? 12 THE REGISTRAR: 1018? 13 MR. RUSH: 14 Q Yes. Looking at tab 4, page 3, this Edgell affidavit 15 was shown to you by Mr. Willms? 16 A Yes, it was. 17 Q Paragraph 6, schedule A, the reference to schedule A, 18 is it your understanding that that was the metes and 19 bounds description of that statement of claim that was 20 filed there? 21 A Yes, that's correct. 22 Q And the schedule B that it's referred to it says is a 23 map said to delineate the description of schedule A? 24 A That's correct. 25 Q And that was a map that was appended to the statement 26 of claim of October the 23rd, 1984? 27 A Yes, that's correct. 28 Q Is it your understanding that both those were appended 2 9 at the same time in the same statement of claim? 30 A That would be correct. Yes. 31 Q In your response, Mr. George, which is at tab 3 of 32 this binder, you go through in paragraphs 4 through 63 33 and you state the nature of the -- of your response in 34 each one of those paragraphs. Do I understand from 35 that that you took what was said in one affidavit and 36 responded one -- point by point, or how did you make 37 your responses to the Edgell affidavit? 38 A He had a map which he would identify one which his 39 comment would have referred to, and I went to that 40 particular area and looked at the features there and 41 looked at his comments and compared those comments to 42 my description. In my description he also identifies 43 the one which he's making reference to. 44 Q And then did you draft your response in turn? 45 A Yes, based on that. Yes, that's correct. 46 Q And are those the responses that appear in those 47 paragraph numbers that I just indicated? 16032 M. George (for Plaintiffs) Re-exam by Mr. Rush 1 A Yes, they are. 2 Q Now, Mr. George, I'll just direct your attention away 3 from that, but on a related subject. You were asked 4 in the cross-examination concerning the metes and 5 bounds descriptions, and in response to a question put 6 to you by Mr. Willms you said you had, when you worked 7 with the Ministry of Forests, that you had an Order in 8 Council metes and bounds description of forest 9 districts; is that right? 10 A Yes. There would be descriptions of the forest 11 region, Prince George forest region boundary, metes 12 and bounds description passed through Order in 13 Council, and there would be descriptions of the forest 14 district boundaries within the Prince George forest 15 region again passed through Order in Council. 16 Q All right. And were those metes and bounds 17 descriptions outlined in those Orders in Council? 18 A Yes, they were. 19 Q All right. And in -- you said in your response to a 20 question from Mr. Willms that you found those on 21 occasion to be inadequate for the purposes of mapping? 22 A Yes, they were. 23 Q And when you say inadequate, what do you mean or what 24 did you mean by that? 25 A Based on those descriptions there was no way that I 26 could plot those particular boundaries. 27 Q Okay. 28 A They were inadequate. They did not describe those 29 boundaries in a way that those boundaries could be 30 plotted by someone in the topographical drafting 31 field. 32 Q All right. And what did you do about that, if you did 33 anything? 34 A We made requests for particular maps that would 35 correspond to those descriptions. 36 Q And from that? 37 A And based on the maps and -- based on the maps and the 38 description, those boundaries were plotted into the 39 central atlases in the Prince George forest region. 40 Q Was any other additional information obtained by you 41 in respect of those particular ones that -- or those 42 metes and bounds descriptions that you found to have 43 been inadequate? 44 A Well, we would have -- we would have had to get the 45 map that that description was referring to, and with 46 the assistance of cross-referencing both of those we 47 were able to put the line to the maps. 16033 M. George (for Plaintiffs) Re-exam by Mr. Rush 1 Q Okay. All right. I'll just ask you, if you will, to 2 refer to tab 5 of the grey binder of the provincial 3 defendant, and if you'll refer to paragraph 5, your 4 attention was directed to this description of the 5 Isaac Lake territory in Mr. Morris' affidavit, and 6 it's at the -- your particular attention was drawn to 7 the opening words, and I quote: "Starting at the 8 confluence of Dedzii'tse Kwe", D-e-d-z-i-i-'-t-s-e 9 K-w-e, and parenthetically it's stated to be an 10 "(unnamed creek on government maps)", and Niitaagh 11 Ben", N-i-i-t-a-a-g-h B-e-n, "(Francois Lake)". 12 Now -- and that ends the quote. Now, just 13 referring to that, I want to ask you if Dedzii'tse 14 Kwe, that is the first word that I spelled, is that a 15 topographical feature? Is that what you consider to 16 be a topographical feature? 17 A Yes, it is. 18 Q And is that -- is that feature known to you to be 19 physically on the ground? 20 A Yes, it is. 21 Q Okay. And does that knowledge, the fact that you know 22 it to be physically on the ground, does that allow you 23 to plot it? 24 A Yes, it does. Yes. 25 Q Now, from your knowledge, Mr. George, is there any 26 other unnamed creek called Dedzii'tse Kwe, that's the 27 same spelling, madam reporter, on Francois Lake? 28 A There's only one Dedzii'tse Kwe on Francois Lake, 29 D-e-d-z-i-i-'-t-s-e K-w-e. 30 Q Okay. All right. I just want to direct your 31 attention, please, to tab 8 of this grey book, a 32 similar document that your attention was drawn to -- 33 I'm sorry, my mistake, tab 38 of the plaintiffs' 34 document binder which is Exhibit 998, and in that 35 volume it is tab 38? 36 A Tab 38. 37 Q Yes. Your attention was drawn to this particular tab 38 and a particular part of the tab by Mr. Willms. This 39 is an interview of November the 5th, 1987, and your 40 attention was in particular drawn to the last line and 41 I'm quoting "Samooh" S-a-m-o-o-h "territory to change 42 to Khay la'h". K-h-a-y, new word, l-a-'-h. And I want 43 to ask you, Mr. George, when you wrote that what did 44 you contemplate the nature of the change to be when 45 you said it changed to Khay la'h? What was the change 4 6 that you had in mind? 47 A I believe the area would have been labelled as Samooh 16034 M. George (for Plaintiffs) Re-exam by Mr. Rush 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 THE MR. Q A Q A Q A Q A Q A COURT RUSH: Q A Q MR. THE THE THE THE THE THE THE MR. on one of the maps and based on the information of these people it was later changed to Khay la'h. That is to say the labelling was changed? The labelling was changed. That's all. Now, I'd just ask you to go to tab 39, please, of the same document book, and Mr. Willms was asking you about this interview that was shown to have occurred on December the 9th, '87? Uh-huh. Yes. Mr. George, I take it that the person that was being interviewed here was Mabel Forsythe? Yes , it was. All right. And I would like you to read from the top of the interview beginning with the interview down to the passage that was referred to you by Mr. Willms? Starting at "Before"? Pardon me? Starting at "Before"? : Before. No, I would like you to start right at the top of the page. Okay. Because I think the confusion that I perceive may be in that -- may be clarified by a reference to the whole of the preceding line. So if you'll just begin and read down to the passage that Mr. Willms referred you to, which is the line at the three -- middle three-hole punch, beginning "Mary Joseph". So if you'll just read that? Yes. It's December 9th You needn't read it out it to yourself? Okay. Down to Louie Tommy? Yes, I read it. All right. And — Stopping for a minute is it? WITNESS: A Q A Q A RUSH: COURT: loud. If you would just read I'm sure that's not "Bingo' COURT: WITNESS COURT: WITNESS COURT: RUSH: Q All right Yes, she was just making a comparison there. It is Bingo? Bingo. That's the word that's spelled there? Yes. Yes. All right. Thank you. My question to you is it's in relation to 16035 M. George (for Plaintiffs) Re-exam by Mr. Rush 1 Mr. Willms' question about who the dad -- whose dad is 2 being referred to here, and you indicated that, as my 3 note has it, that it was Mary Joseph's dad, and I 4 wonder if you read the whole of that contextually what 5 you can say about -- the dad is referred to twice 6 there? 7 A Uh-huh. 8 Q One time in the Mary Joseph line ending with "dad's", 9 and then in the three lines down from that it says 10 "After dad passed away". Are you, when you read the 11 whole of that, able to tell us who the dad is? 12 A I believe it was Mabel Forsythe's dad. 13 Q Yes. All right. Just -- I'll take you up a few lines 14 before this. It says -- "Before", the Mary Joseph 15 line, it says "Before our time my father lived around 16 Round Lake." And whose father would that be in 17 reference to? 18 A Again, Mabel Forsythe. 19 Q Thank you. Now, if you'll turn to tab 44, this is a 20 passage as well that you were referred to by Mr. 21 Willms. It's at the bottom of this interview below 22 the indication "N.B.", and it says "Johnny David and 23 Mabel Sam Critch state that all of Wedzen Ben..." Now, 24 what is Wedzen Ben, please? 25 A Wedzen Ben is Morice Lake. 26 Q That's W-e-d-z-e-n, and then an apostrophe -- excuse 27 me, a comma, and then it carries on "half of Tenelghel 28 is Gitdumden", and that's T-e-n-e-l-g-h-e-1 with a 29 slash through it. 30 Now, the word Tenelghel, what does that refer to? 31 A Tenelghel, T-e-n-e-l-g-h-e-1, is a ridge, your honour, 32 on the west -- it's this ridge right here, your 33 honour, on the west shore of a ridge west of -- 34 immediately west of Morice Lake. That's Tenelghel. 35 Q Now, you're pointing to a line which is on the -- 36 appears, if this is north, that would appear on the 37 north-westerly side of the territory separating Woos 38 from Gyolugyot, is that so? 39 A Woos from Goohlaht. 4 0 THE COURT: It's in the — 41 MR. RUSH: Excuse me, Goohlaht? 42 THE COURT: In the territory of Goohlaht? 43 THE WITNESS: It's on the boundary of both, your honour. 44 THE COURT: Boundary between Goohlaht and Smogelgem? 45 THE WITNESS: No, Woos. 4 6 THE COURT: Woos? 47 THE WITNESS: W-o-o-s. 16036 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 M. George (for Plaintiffs) Re-exam by Mr. Rush THE THE MR. THE COURT: All right. WITNESS: Goohlaht is G-o-o-h-l-a-h-t. RUSH: My lord, this is where the witness -- COURT: Yes, I see it. Thank you. Mr. Rush, again not wanting to rush you, but -- MR. RUSH: Oh, I'm hoping to finish, my lord, if you can bear with me, and if everybody else can bear with me, I hope, I think I can finish within ten minutes. Is that all right, madam reporter? Fine with me. THE THE MR. MR. THE MR. MR. THE MR. COURT: WITNESS RUSH: Q A RUSH All right. Yes. Please, Mr. George, will you return to tab 49? Do you have that? Yes, I do. And if you'll turn to the second page at tab 49, and you were referred to this tab by Mr. Willms. Would you place the grey binder before Mr. George, please? REGISTRAR: What tab? RUSH: Q Tab 12 of Exhibit 1018. Now, Mr. George, I want to direct your attention to the second page of tab 49 of the black binder. Uh-huh. And to the feature that is described at the top of the page as "Nee Taa Bel", N-e-e, new word, T-a-a, new word, B-e-1. Do you see that? Yes, I do. And I would ask you if you would then look to page 2 of the Simms' affidavit at tab 12. That's 1018-12? A Q A RUSH COURT RUSH: Q A Q 1018. Yes. And in particular the last seven lines. I want -- I see in the last seven lines and on the sixth line a reference to Nee Taa Bel. Can you tell me if that is the same or a different feature that is being referred to there in the Simms' affidavit? That's the same feature, your honour. And I would ask you to look at the bottom of the page of page 2 in 49 where it says under the interview with Willy Simms "Alfred Joseph, September 4th, 1981", and I quote "Gidum Skanist" G-i-d-u-m, new word, S-k-a-n-i-s-t, "said the boundary of this territory is east of Burns Lake near where the sawmill Babine Forest Products Limited is located." Is that description or that information, Mr. George, from what you know of Mr. Simms' affidavit, consistent with the affidavit? 16037 M. George (for Plaintiffs) Re-exam by Mr. Rush 1 A 2 Q 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 A 23 Q 24 25 26 27 28 29 30 31 32 33 34 35 A 36 Q 37 38 39 40 41 42 43 44 A 45 THE COURT 46 47 MR. RUSH: Yes, it is. Yes. Now, if you'll please look to tab 37, or perhaps before I do, I'll direct your attention to tab 36 of Exhibit 998. And Mr. Willms directed your attention to this tab and in particular to page 1, 2, 3, 4, 5 of this tab and to entry number 25 which says "Porphry Creek", P-o-r-p-h-r-y, Creek, and that under that apparent heading it's said "Is at Beamont", B-e-a-m-o-n-t, "This is Gitksan." Your attention was directed to that, Mr. George, and I would like to direct your attention now to tab 37, the following tab, which contains an interview apparently with Madeline Alfred, Josephine Michell, Lezat(ph) Naziel, N-a-z-i-e-1, Alfred Mitchell, Victor Jim, and Doug Tait, and in particular to the entry on page 2 and which is under entry number 9 where it says "Porphry Creek", same spelling, and the entry there is "This is boundary w slash", which I take to be with, "Gitksan and Wet'suwet'en." Did you take that into account in your -- at that period of time in June, apparently June 9th, 1987? Yes, I did. Now, Mr. George, yesterday it was suggested or at least placed before you your draft summary of opinion which was dated to March 1987, and that's 1018-13, my lord, and it was suggested to you that -- this was draft 4 of your opinion, and the suggestion was that the document that is at tab 13 is draft 4 of the document that was and is at Exhibit 998-1 which is the opinion of yours which you have identified and is dated March 19th -- March, 1989, and my question is, are the documents separate documents or is the one, that is to say, 1018-13, is that -- is the one the draft of the other? They're separate documents. During Mr. Willms' examination earlier this morning he suggested, I think, I don't know whether intentionally or not, that there was one planimetric base drawn by you and that was map 4 of the overlay series which is Exhibit 102 and you agreed with him, and I just wanted to direct your attention to this paper map which is overlay 5 and I just want to ask you if that too is a planimetric base? Yes, that is a planimetric base, your honour. What is the number of that piece of paper or does it have a number? Exhibit 101. 1603? M. George (for Plaintiffs) Re-exam by Mr. Rush 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 THE THE MR. THE MR. THE MR. THE MR. THE MR. THE MR. THE MR. THE MR. REGISTRAR: Exhibit 101. COURT: All right. Thank you. I'm a little confused as always, Mr. Rush. You said 102 series? Did I say series? I thought you did. If I did I didn't — Because we have the 646 series. Yes, I -- map 4 Yes. And that's what whatever it is. 646. 646 of the overlay series. And what is 102? 102, my lord, this is 101, and 102 is the coded map of October the -- on the overlay October 17th, 1985, and it contains the coding of the -- All right. All right. clans and villages. Yes, my lord, 102 is 4. RUSH: COURT RUSH: COURT RUSH: COURT RUSH: COURT RUSH: COURT RUSH: COURT RUSH: is in the overlay series. I intended to say. It's COURT RUSH: Q -- chiefs, overlay map All right. A Q A Q A Q Mr. George, you were asked a number of questions by Miss Koenigsberg about the fact that certain of your draft maps had been attached as map answers to the interrogatories, and you indicated in answer to her questions that you didn't attend when the interrogatories were sworn or signed, and I want to ask you if you played any role at all in the decision to attach or not to attach maps to interrogatory responses? No, I didn't. Now, you were also referred by Miss Koenigsberg to the draft -- excuse me, the summary of opinion of March of 1987, again Exhibit 1018-13, and I think you stated in your answer to one of her questions that you believed that the information for the Wet'suwet'en was complete as at the date of March 9th -- excuse me, March of 1987, and my question to you, was that an assumption that you operated on at that time? Yes. And subsequent to that what did you learn about that assumption? It was wrong. Okay. Now, I want to ask you about overlay map 8. This is in the overlay series, and this is the map that was exhibited on May the 20th, 1987. Excuse me, 16039 M. George (for Plaintiffs) Re-exam by Mr. Rush 1 I -- perhaps to be really precise I think I'll -- Mr. 2 George, I think I won't deal with that, but I will 3 deal with this one, and I'm sure Mr. Willms won't mind 4 if I take this off. Now, just so you're not craning, 5 Mr. George, I'm just going to move this over here. 6 Now, this is or was Exhibit 5 for identification, now 7 Exhibit 5, and that was exhibited on May the 20th. 8 With regard to this particular exhibit, Mr. George, 9 were any of the internal boundaries that are depicted 10 on that exhibit reviewed -- were they reviewed by you 11 with any of the hereditary chiefs before that exhibit 12 was filed? 13 A No, they weren't. 14 MR. RUSH: You were asked about Loots wenii ts'anlii? 15 MS. KOENIGSBERG: He was? 16 MR. RUSH: 17 Q Yes. And you pronounced it very well too. And that's 18 L-o-o-t-s, new word, w-e-n-i-i, new word, 19 t-s-'-a-n-1-i-i. And you disagreed with Miss 20 Koenigsberg that Loots wenii ts'anlii was Blunt Creek? 21 A Yes, I disagree with that. 22 Q And from your knowledge is there a Wet'suwet'en name 23 for Blunt Creek? 24 A Yes, there is. 25 Q And what is that? 26 A Xaas Kwe. It's X-a-a-s, I believe, Kwe, K-w-e. 27 MR. RUSH: Those are all of my questions. Thank you. 2 8 THE COURT: All right. 29 MR. WILLMS: My lord, I understand we're in a position to mark 30 Exhibit 1022 now that the witness has finished his 31 tracing. I'd ask that it be marked at this time. 32 MR. RUSH: No objection. 33 THE COURT: Yes. All right. It's 1022, is it? 34 THE REGISTRAR: 1022. 35 THE COURT: All right. That may be marked accordingly. 36 THE REGISTRAR: Thank you. 37 38 (EXHIBIT 1022: Base map overlay, boundary transferred 39 to Ex. 646 copy) 40 41 THE COURT: All right. Thank you. I suppose we should adjourn 42 until ten o'clock on Monday morning, should we? 43 MR. RUSH: I hope so, my lord. 44 THE COURT: All right. Thank you. Thank you, madam reporter. 45 THE REGISTRAR: Order in court. This court will adjourn until ten 4 6 a.m. Monday. 47 16040 M. George (for Plaintiffs) Re-exam by Mr. Rush 1 2 (PROCEEDINGS ADJOURNED TO APRIL 24, 1989 AT 10:00 A.M.) 3 4 I hereby certify the foregoing to 5 be a true and accurate transcript 6 of the proceedings herein to the 7 best of my skill and ability. 8 9 10 Tanita S. French 11 Official Reporter 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
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.
Images provided for research and reference use only. For permission to publish, copy, or otherwise distribute these images, please contact the Courts of British Columbia: http://www.courts.gov.bc.ca/
Original Format: University of British Columbia. Library. Law Library.
[Proceedings of the Supreme Court of British Columbia 1989-04-22]
Text