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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1987-05-20] British Columbia. Supreme Court May 20, 1987

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 383  1 MAY 20, 1987  2 SMITHERS, B.C.  3  4 THE REGISTRAR: Order in court.  In the Supreme Court of British  5 Columbia this 20th day of May 1987, Delgamuukw, also  6 known as Ken Muldoe, suing on his own behalf and on  7 behalf of all the members of the Houses of Delgamuukw  8 and all the others and Her Majesty the Queen.  9 THE COURT:  Mr. Grant?  10 THE REGISTRAR:  Witness, I remind you you're still under oath.  11 MR. GRANT:  Thank you, My Lord.  Mrs. McKenzie, yesterday we left off with a  discussion of the marriage laws and you were talking  about marriages of persons to members -- to other  persons within the same clan.  Can you explain to the  court why this law is important to the Gitksan, that  persons not marry into the same clan?  It's very important to the Gitksan law that we don't  intermarry into our own clan and there's several  reasons why this law is very strict amongst the  Gitksan people.  In the first place we have to look  into the children of this couple that they don't  really have -- like we use the word wilxsi laks or  wilxsi bakxws in a different clan.  Especially if this  couple lost a child, who do we go to if they're both  in the same clan?  Now, that's the purpose for it that  it's very strict that this doesn't happen and it's  very difficult for the two families to get together  and so it falls on just the one clan.  Can you explain that in more precision what you mean  when you say it falls just on one clan?  Well, the couple are of the same clan --  Yes?  -- you see.  And then if any -- like a death of the  child that we have --  Of this family?  -- of this couple --  Yes?  -- they're in the same clan.  Right.  And in our law we have to approach the family of the  father of the children.  Yes?  And with this intermarrying we can't go and approach  anybody because they're both in the same clan.  Okay.  12  Q  13  14  15  16  17  18  19  A  20  21  22  23  24  25  26  27  28  29  30  31  Q  32  33  A  34  Q  35  A  36  37  Q  38  A  39  Q  40  A  41  Q  42  A  43  44  Q  45  A  46  47  Q 1  A  2  3  4  Q  5  6  A  7  Q  8  A  9  Q  10  A  11  12  13  Q  14  A  15  16  Q  17  A  18  19  Q  20  21  22  23  24  A  25  Q  26  A  27  Q  28  29  30  A  31  32  33  34  35  36  37  Q  38  A  39  Q  40  A  41  42  43  Q  44  45  46  47  384  And it doesn't look right to the eyes of the Gitksan  when this happens like both parents are of the same  clan.  You say you can't approach the father when there is  this intermarriage in the clan?  We can't approach the family of the father.  Okay.  Why not?  Because the father is of the same clan --  Okay.  -- as the wife.  You see, when in marriage it has to  be a Frog or a Fireweed or a Frog and a Wolf clan.  So  take like for my family, if we lost a child --  Yes?  -- I have to approach the family of my husband to look  after the burial for my child.  This is --  When this doesn't happen -- it can't happen when  they're both in the same clan.  Okay.  And if this happened to your family, in your  own -- to one of your children, your husband's family  of the Frog clan would take care of the burial and the  funeral arrangements, that was your evidence  yesterday?  Yes, uh-huh.  And they are repaid in the Feast Hall?  Yes.  Now, what happens if both the mother and father of the  child who's killed are of the Frog Clan?  What happens  in the Feast hall then?  There is quite a bit of disruption then because we  can't -- the parents can't ask the wilxsi bakxws for  any assistance from the father's side, but there's a  thing that we can solve it too is that we reach back  to the grandparents if this happens to a family.  We  have to reach back to the grandfather and the  grandmother.  Is this marriage in within one clan common today?  No.  It's very rare.  Is it still discouraged?  Yes, it is.  We make sure that in the Feast House  we -- it's -- we have to speak to the young people of  knowing what clan they're in.  I'd like to move to a new area, My Lord.  I'd like to  ask the witness about spiritual beliefs of the Gitksan  and I'd like you -- the first area of the spiritual  beliefs I'd like you to speak about is the naxnok.  Now, we have already heard you describe the naxnok 385  1 as something that is done in the Feast Hall and you  2 referred to it with respect to Anhloo'o's Feast.  Can  3 you give the court a broader description of what the  4 naxnok includes outside of the performance itself?  5 A  We take the naxnok as a living thing, there's life in  6 it.  It's not just the performance.  There's life in  7 it.  And with this life we feel that it's in our  8 spirit, that we have to approach the head chief with  9 it so it's alive in our sense, the Gitksan sense, and  10 the feeling of it.  11 Q   Now, is there any relationship between the naxnok and  12 the territories of the Gitksan chiefs?  13 A  We feel that the naxnok is a living thing and so's our  14 territory.  It connects the living thing.  15 Q   How does it connect to the territory?  16 A   The beliefs in it that it's alive, like the humans  17 have a spirit so is the animals that is on the  18 territory, the fowl in the air, the fish of the  19 waters, the animals on the land, it all connects with  20 the naxnok.  21 Q   Can you explain how a naxnok is acquired, and I'd ask  22 you to refer to Baskyelaxha as an example?  23 A   This person, it wasn't said the name of this person  24 when it was told to me, and he went on his territory  25 to do a little bit of trapping or hunting, and while  26 travelling -- and nightfall he made a camp and he was  27 asleep when he heard a thundering noise so he listened  28 for a while, then the second time it came louder.  The  2 9 third time he -- when he heard it he got up and he  30 looked around.  He knew there was no -- no one -- no  31 human being around near where he was.  32 And he happened to have two dogs with him and with  33 all this thundering noise not one of the dogs got up  34 to bark to the sound of what he heard.  So he got  35 dressed, he got out of his tent and he looked around,  36 he walked a little distance away from his fire.  He  37 didn't see anything and there was no sound again, so  38 when he got to beside the fire this thundering noise  39 came again and he looked up then to the skies and  40 there he saw the opening of the sky and in that circle  41 he seen faces of human beings around this halo up in  42 the skies and he stood there and watched.  He was very  43 much stunned at what was happening there and he didn't  44 say -- do anything and the dogs never moved at all,  45 and then this thing closed up slowly to him and he  46 seen it close, so he said to himself "This is a unique  47 thing happening on my territory."  So he said "I'll 386  1  2  3  4  5  6 THE  7 THE  8 MR.  9  10  11 THE  12 THE  13 THE  14 MR.  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  take it as my naxnok." And he put a name to it and  that's why the name came as Baskyelaxha, frightening  of the thundering of the heavens.  Q   That's what the name means?  A   That's what the name means.  COURT:  Frightening of thunder of heavens?  WITNESS:   Yes.  GRANT:  Q   Who holds the name Baskyelaxha?  A   Billy Blackwater.  COURT:  Sorry?  WITNESS:   Billy Blackwater.  COURT:  Billy —  GRANT:  Q   -- Blackwater.  Have you seen Bill Blackwater perform the naxnok?  A   Yes.  Even on his button blanket he has this opening  with just the heads of the figures looking down and  this halo he has on his regalia, and when he performs  the naxnok he goes around and he keeps covering --  trying to cover himself up.  He said he's afraid of  what's happening in the skies.  That's how it's  performed.  When you say he's covering himself up --  A blanket.  Where, over --  Yeah, over himself.  Now, is that the normal way in which persons receive  naxnok, that is, when they are on their territory or  do they get naxnok in other ways as well?  Mostly from their territory because every House has a  territory and when you do your hunting or trapping  there and these things come to a person, you have to  watch it and then -- and make sure what it resembles.  And this we believe in Gitksan way is the only way  that it's given to us, and see right there we -- the  picture's right there.  It comes there suddenly to a  person.  You may not be thinking about a naxnok at  that time, but there are times that a person -- this  is how naxnok are started is by going to the  territories and receiving it.  This is why we say it's  alive because it's very -- there is real people in  there and human being is there so we took it as a  living thing.  Q   Real people in the naxnok?  A   Yes.  Q   Have you seen performances of the naxnok by the late  Q  A  Q  A  Q  A 387  1 Bob   Robinson?  2 A       Yes.  3 Q   And Tom Campbell?  4 A   Yes.  5 Q   Could you describe what their naxnok was and what  6 happened?  7 A   In the 1930's or even 1929 it was they -- the people  8 wanted to see the naxnok of different high chiefs so  9 they used the old Feast House in Gitanmaax and the  10 Feast House belonged to Spookw, Frank Clark, at  11 Gitanmaax and they had Bob Robinson act out his  12 naxnok.  13 Q   Sorry, who did?  14 A   Bob Robinson.  15 Q   Now, to child this is a frightening thing and even  16 today I still feel the same way about some of these  17 naxnok, they frightening thing put to a child of eight  18 years old maybe.  And they performed that.  This  19 figure sat -- they had done on the stage so that all  20 the people could see so Bob Robinson was in this -- he  21 was draped in a blanket.  22 Q   Covering his head too?  23 A   Covered -- his head was shown, but all the rest of him  24 was all covered with this blanket and songs were sung  25 and it was performed that -- to show the strength of  26 the naxnok, so he -- he sat there and they sang songs  27 of naxnok that went along with it.  28 Now, as the singing went about the head of this  29 person turned right around and it faced the audience  30 again and the body was there, but it was just the head  31 part that turned one circle around and then at that  32 time Tom Campbell walked in.  He said -- he said "I'm  33 here to kill."  So he walked in with a small hatchet  34 and he went up and the naxnok didn't move and he just  35 stayed there to -- this is to show the bravery of  36 people that do these naxnok, and this is why we have  37 the wilxsi laks to protect the people that's acting  38 the naxnok because sometimes it shows bravery when the  39 naxnok is very -- as I said some of them are very  40 fiery, so he -- this person Bob Robinson turned once  41 again his head and he, Tom Campbell, was there with  42 the hatchet ready to put it on his brow here and when  43 he threw that he hit Bob Robinson in the forehead and  44 the hatchet stuck in there.  Now, when he got up the  45 hatchet fell out and there was no mark on his forehead  46 at all.  That's how serious these things go about and  47 it's the strength of the naxnok not to hurt the 1  2  3  4  5  6  Q  7  8  9  10  A  11  Q  12  A  13 THE  COURT  14 THE  TRANS  15 THE  COURT  16 MR.  GRANT  17  Q  18  19  A  20  21  22  23  24  Q  25  A  26  27  28  29  30  31  Q  32  A  33  Q  34  35  A  36  Q  37  A  38  39  40  41  Q  42  A  43  Q  44  A  45  Q  46  A  47  Q  people.  It shows just how alive these naxnok are.  Now, that's -- I've witnessed that and I often  think about it, how much alive a naxnok is, and you  have to protect yourself and protect the person that's  acting out the naxnok.  I'd like to move to another area of your spiritual  beliefs and I'd like to refer to 'widinsxw.  Could you  explain to the court what your belief -- what  'widinsxw is to the Gitksan?  'Widinsxw, is that what you said?  Yes.  'Widinsxw.  :  How is that spelled, please?  LATOR: 'w-i-d-i-n-s-x-w.  :  Yes, that's what I thought.  Go ahead.  Could you explain what is meant by  'widinsxw?  We believe in what may be used as reincarnation and  that's what 'widinsxw is.  Now, a woman give birth to  a child and somewhere before, during pregnancy or  before -- even long before that, a relative of this  woman dies and if he's marred with a disfigurement --  The one who dies?  Yes.  And when this woman give birth to this child  these marks are shown on the child when it's born.  Now, that's -- we believe that that person has come  alive again into the family by showing of these  disfigurements in the face or the hands or feet and  this is how we believe that our people reincarnate.  Have you seen this in your own family?  Yes, I have.  Could you give some examples from your own family and  why you say that?  My husband's mother is Cathleen Risdale.  Uh-huh?  And she has a problem of being lame on one leg.  Now,  when I had my first child I had my first daughter and  she too was lame, she still is today, so we believe  that she has come back to us again.  And which daughter is this you're referring to?  Pearl Trombley.  And she's presently in hospital --  Yes.  -- undergoing treatment for her lameness in Vancouver?  Yes.  Did you speak to your own grandmother about Pearl 389  1 being lame when she was small?  2 A  Well, she did know of it even before I had Pearl  3 because she's one of the halayt and they foresee these  4 things and even before Pearl was born she told me, she  5 said "Your husband's mother is coming back to you."  6 She said, "And don't be alarmed."  It's like she knew  7 what she was handicapped on.  She said "Your child  8 will be the same."  So I expected that and I accepted  9 it.  10 Q   Did Ben -- your husband's mother ever say anything  11 about this before she died?  12 A   No, because she died before I married Ben so I didn't  13 really get to know her very well.  14 Q   What about your grandchildren?  Are any of your  15 grandchildren reincarnated?  16 A   Yes.  And there's another instant that I remember  17 about the thing.  When my son Benny was born and he  18 was all right in the first two months, he hardly  19 cried, but after that day and night he would cry and  20 gurgle up sounds.  So when my grandmother seen him and  21 heard him he said "We better take Benny up to Kispiox.  22 There's a lady up there that when you take babies up  23 to her she can interpret what these children -- these  24 infants are saying in the gurgling sound.", like that  25 comes out from a child.  So I -- we all couldn't sleep  26 and so I was willing to get the problem solved, I  27 said, so we took Benny up to Kispiox.  We went to  28 Louise Williams at Kispiox.  She was Gunuu.  29 Q   She was which?  30 A   Gunuu, a chief name.  31 Q   I took her to her and he start talking to the baby  32 just in our language and here the baby started  33 gurgling and hands were going, feet were going, and  34 she said, "All right.  All right.  Calm down." she  35 said, "I'll get you what you want."  So -- and she  36 turned around to me, "You know," he said, "this boy,"  37 he said "is my first husband Johnny Angus."  And he  38 said "I have a cowboy hat that belong to him, it's  39 upstairs, and that's what he wants.  He wants to wear  40 that cowboy hat again."  So he went -- she went  41 upstairs, she brought the hat down to me and said,  42 "Here, hang it up."  I said "Where?"  "In the top of  43 the cradle or wherever you put him into bed."  So I  44 did.  The crying stopped, everything went normal  45 again.  46 That's another instance that reincarnation came to  47 my son Benny and the same way with my grandchild Ian 390  1 Trombley.  He always wanted a blanket that belonged to  2 Kwamoon and again we had to take him to Kispiox and  3 the first lady died, but we were fortunate we had --  4 Lucy Tait was still alive then in Kispiox so I took  5 him -- I took the -- my grandson to her -- her place  6 and when we walked in I knocked on the door.  She said  7 "Come in."  She was on her bed.  She said "Come in."  8 And she called me by my K'amaaxs, like my -- she said  9 "I was expecting you people" he said "this morning."  10 And it was afternoon when we went.  He said "I seen  11 you.", he said "You walked into my house with the  12 baby."  So she knew what I wanted and she talked to my  13 grandson. My grandson told her that he wanted a -- one  14 of the button blanket that I had, "a real old one" he  15 said, "And you have it", Lucy Tait told me, said "You  16 have that blanket in your trunk."  Said, "Get it out"  17 he said "and drape it around him"  she said "when he  18 sleeps tonight."  Said, "Do it for three nights" he  19 said "and then" he said "the baby will be calm."  He  20 said "You won't have no problems with it."  21 So I took the child home, I dug out the blanket and  22 I draped it for him so everything was normal again in  23 the house.  But these are the things that do happen  24 when what we call 'widinsxw.  25 Q   Whose button blanket was that that you --  26 A   It belonged to Kwamoon, Peter Robinson, and he was --  27 Ian was my grandson.  He was the one that wanted the  28 blanket because he was reincarnated like the late  29 Peter Robinson.  30 MR. GRANT:   I'd like to move into another area of the spiritual  31 beliefs and I'd like to ask you about the powers of  32 the halayt, and if you could maybe with reference to  33 your own experiences or your own family explain to the  34 court -- you already referred to your grandmother I  35 believe, explain to the court what you mean by halayt  36 and what she -- how she demonstrated her powers as a  37 halayt?  38 THE COURT:   How is that spelled, please?  39 THE TRANSLATOR: H-a-1-a-y-t.  40 THE COURT:  H-a-1-a-y-a-t?  41 THE TRANSLATOR: H-a-1-a-y-t.  42 THE COURT:  Thank you.  43 THE WITNESS:   In the Gitksan way we -- there's a group that we  44 call halayts and they foresee things.  This is the one  45 thing about it, but before getting to become a halayt  46 you have to train for it.  People go through training  47 for a year, two years before they have the power of 391  1 seeing -- foreseeing the things that will come about  2 later.  3 My grandmother was one of the second best in  4 Kispiox and I seen so much of what she had said would  5 come true, so I really believed in this.  So this is  6 why I questioned her so much of how she became a  7 halayt, you know, she said, "We have to go through  8 training."  And he said "And this halayt is not forced  9 on you."  He said "Right from the start you have it  10 inside you, the feeling that you will become a good  11 halayt, so" he said "you have to go forward with that  12 feeling in you that you're going to make yourself into  13 a halayt."  So there's -- they're taken away from the  14 village completely.  They have to be out in the  15 wilderness with their trainer and quite a bit of  16 fasting is done only they'd just have a meal once a  17 day and they have to exercise to give them strength.  18 They have to have good strong feet and strong arms and  19 this is what has happened during their training.  20 Now, songs has to be used by these halayts so they  21 have to look and they have to put together their own  22 songs in words.  Now, to get that -- those songs,  23 these people, they're taken out where there's a  24 waterfall and they stay there for sometime.  And this  25 person would go to this waterfall and sit by this  26 waterfall by the hours and then you hear the echo of  27 the waterfall and they listen to that and they say  28 little by little there's words coming out from that  29 waterfall and this they have to -- they have to  30 remember what these words are and what they mean so  31 that it forms into a song and this is how they make up  32 their songs is by sitting by the waterfall and getting  33 the song from there.  It takes a long -- a long time.  34 It could go by months and weeks to gather all these  35 songs for them to use when they start performing on  36 the person that they going to cure.  37 And when you're ready you're not afraid.  They say  38 you're not afraid of anything and you have this  39 strength in you.  Your hands are strong, your feet are  40 strong, your mind is clearer then too, so you become a  41 halayt and then these visions become appearing to you.  42 It's not a dream, it's visions come to these people.  43 Sometimes they know what the weather will be like all  44 summer or how many fish are coming up the river.  45 They -- they tell you when there will be plenty of  46 berries, plenty of fish or hardly any at all.  These  47 are the things that they can foresee.  And they tell 392  1 to the people if a person is sick and it's not  2 sickness, a disease or anything, but they spirit have  3 left their body and there's no spirit in your life.  4 And this happens when you are frightened and your  5 spirit leaves you and they the people see where your  6 spirit is.  7 I've experienced this myself because there was a  8 time in 1930 we were -- my grandfather was taking us  9 to Kispiox on a sleigh going up to Kispiox with a team  10 of horses and they -- a person died and it was in  11 December and the ground was frozen so they had to use  12 dynamite to break this spring and just as soon as we  13 were going up the river at Gitanmaax there the  14 dynamites went off and it frightened the horses so  15 they got away with us on the sleigh and I was really  16 frightened.  So after awhile the horses stopped and we  17 proceed going home to Kispiox.  18 About six weeks after that I had problems with my  19 sights.  I couldn't see very much.  Everything became  20 dimmer and dimmer so they took me up to the hospital.  21 Dr. Wrinch was there and he examined me and he said  22 "You have the measles." he said, "And it's gone to  23 your eyes."  He said "That's why you're turning  24 blind."  So they took me up to Kispiox, my parents  25 told my grandmother what's happened.  He said "Don't  26 you listen to Dr. Wrinch."  She said "You have a  27 problem."  She said "You were frightened one time."  28 He said "I had another lady, another halayt came and  29 told me that she had seen you" he said "in the rocks  30 upriver from Gitanmaax."  He said "That's where your  31 spirit is there."  He said "And we have to get you out  32 of there."  33 So I was -- I lost my sight for eight months and  34 then it's three times that these halayts had to come  35 together and perform and then they -- the third time  36 they say I was out of it and after that I begin to  37 just see shadows and then I got my eyesights back.  38 That's the strength of the halayts that brought my  39 eyesights back.  It brought my -- they had to bring my  40 spirit back to get my eyesights back with it.  Now,  41 these are the strength that the halayts have of  42 curing.  43 Q   You said that the halayts performed on you three  44 times.  Over what period of time did this happen, was  45 it days or weeks or months that they did this?  46 A  Well, yes, it -- the first time that they say they --  47 I was in this place for quite sometime, they said, 393  1 that it would take a little while for them to loosen  2 the rocks they say to me, and they performed their --  3 maybe there would be a half a dozen of them and they  4 have a place above Kispiox there.  They have a  5 building where they take -- where they took me and  6 each halayt performed what they have.  Now, they used  7 what we call aatxasxw, that's a power, aatxasxw.  8 MR. GRANT:   Do you want to spell that for the record please,  9 Mr. Translator?  10 THE TRANSLATOR: A-a-t-x-a-s-x-w.  11 MR. GRANT:  12 Q   Thank you.  Go ahead.  13 A  With my grandmother she had the mountain goat as her  14 aatxasxw, and above her bed she has this pelt of the  15 mountain goat and it's always there, all the time,  16 even on her death bed she still had this with her, her  17 aatxasxw.  Now, some halayts would have a marking as  18 their animal and these aatxasxw when they have the  19 power to come they call for this aatxasxw like the  20 mountain goat.  They call for them to help her and  21 give her more strength of -- of bringing back the  22 spirit of a person.  23 Q   Were you present when these -- when they were doing  24 this or did they do this in your absence?  25 A   No.  I had to be there every time they come together,  26 and here again it cost my grandparents quite a bit of  27 money for them to have these halayts go as they have  28 to be given payment for -- for doing the performing.  2 9 Q   Do you recall what was done -- what did they you do  30 while you were there?  31 A   Oh, they had me -- they didn't have a bed, but they  32 had a bear skin on the floor and that's where I laid  33 there while they -- one halayt would do the  34 performing, their thing, their songs.  And there was  35 one halayt there, her name was Louis Wesley, he went  36 around with these rattles and these aatxasxw and they  37 have their own regalias that they wear when they're  38 performing.  Like some of them would just have a skin  39 apron on and these are some of the -- some of them  40 they just don't have anything, just this apron type  41 thing.  42 Now, Louis Wesley's aatxasxw was the cold water,  43 ice water.  Now, there were -- I could sense, I  44 wasn't -- I couldn't see what they were doing, but I  45 sensed what was going on, so when all the drums were  46 going, the rattles were going, the singing, and they  47 kept -- he kept asking the other halayts, he said 394  "Beat the drums louder, the rattles louder."  He said  "I'm beginning to see where she is."  he said.  So he  said "Now," he said, "pour me that cold ice water over  me."  And they did and you could just see the steam  they say when they poured cold water over him.  Now  that is his aatxasxw you see that performed the steam,  so these are the kind of performance that each halayt  has.  One there went through the fire.  They put the  fire in the House they were in, and one would walk  across this coal with bare feet and not getting them  burned.  These are the kind of power that they have  within them.  You said that the halayt cured you.  Obviously you can  see today?  Yes.  And you could see after they did these -- after they  completed their work with you?  Yes.  :  Now --  :  Mr. Grant, we're going to have to take an  adjournment sometime or we'll be going for a long  spell without a break.  Is this as good a time as any?  :  It may well be, My Lord, and I didn't look at the --  :  All right.  Well, now before we adjourn now it seems  to me that this evidence, interesting as it is, has  some problems of admissibility, does it not?  Under  what rule of evidence or practise do you introduce  this evidence, and if this is all you're going to do  in this regard, well then we don't have to have this  discussion now, but if you're going to carry on and  have other examples, on what basis do you tender this  evidence?  Do you want to discuss this now or after  the adjournment?  :  I'd like to discuss it after the adjournment.  :  All right.  Thank you.  36 THE REGISTRAR:  Order in court, this court stands adjourned for  37 15 minutes.  38  39 (PROCEEDINGS ADJOURNED FOR MORNING RECESS)  40  41 I hereby certify the foregoing to be  42 a true and accurate transcript of the  43 proceedings herein to the best of my  44 skill and ability.  45  4 6    47 Tanita S. French  1  2  3  4  5  6  7  8  9  10  11  12  13  Q  14  15  A  16  Q  17  18  A  19  MR.  GRANT  20  THE  COURT  21  22  23  MR.  GRANT  24  THE  COURT  25  26  27  28  29  30  31  32  33  34  MR.  GRANT  35  THE  COURT 395  1 Official Reporter  2 xh2 Mary McKenzie (for Plaintiffs)  3  1 MAY 2 0, 1987.  2 SMITHERS, B.C.  3  4  5 MR. GRANT:  Yes, My Lord, I would like to complete my  6 questioning on this area.  There is one other matter I  7 would like to raise with the witness, and then I would  8 like to speak to the comments the Court made.  9 THE COURT:  Yes, all right.  10 MR. GRANT:  11 Q   You have referred to your grandmother as a Halayt.  12 Can you tell the Court of an example where you saw  13 your grandmother foreseeing things when she wasn't  14 there?  I am referring particularly to an incident  15 involving Jacob Robinson.  16 A   Jacob Robinson is an elderly man and he did the  17 trapping about 9 miles out of Gitanmaax village.  They  18 have a trap line, his wife had a trap line up there,  19 so he -- in the fall he sets his traps out and he  20 comes into the village.  Just before Christmas,  21 December, the snow is quite deep that year and he went  22 out, and he had one person that he lives with in his  23 place in Gitanmaax, and he told this person what date  24 that he was -- he had been back in the village.  So he  25 went out by himself, he had two dogs and he went.  26 Now, when that date came around, this person was  27 worried cause he didn't come in that night, so he  28 waited until the next day.  So when nightfall came and  29 he still wasn't around, he didn't come home, so this  30 person went to the late John Smith because John Smith  31 was related to this person, Jacob Robinson, and he  32 said that -- he told me, he said that he was to be  33 home last night.  He said -- and it's nightfall again  34 and he has not returned yet.  So they asked -- the  35 next day John Smith went around in the village and he  36 asked Alex Green.  He's a trapper and he knows how to  37 travel.  So we asked -- John Smith approached Alex  38 Green and he searched for him because Alex knew the  39 directions of the place where this Jacob Robinson  40 supposed to do his trapping.  41 So Alex Green went, he spent a night out and he  42 followed -- he followed his snow shoe tracks for quite  43 a ways, then it disappeared because the drift had  44 covered the -- so anyway, he seen the blaze, he  45 followed that, still no sign of the late Jacob  46 Robinson.  47 Now, he was out there for two nights and then he 396  1  2  3  4  5  6  7  8  9  10  11  12  13 THE  14 MR.  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  Q  A  Q  A  COURT  GRANT  Q  Q  A  Q  Q  A  returned to Gitanmaax and he went to John Smith again,  he said he couldn't find any tracks, he said he  followed the first track going up the mountain but he  said when he got where the drift was, that he couldn't  find no tracks at all.  So they -- the family got  together and they sort of had a meeting.  Whose family?  John Smith's family.  And he was Nika teen at this point?  Yes, he was -- at that time he was -- he had two names  Nika teen and K'abim Simoogit, at that time.  Want the  spelling of those names?  : No, that's fine.  Now, they -- the family decided that they should ask  more than one person to go, so they sent two out.  They sent Alex Green out again and Jeff Robinson, that  was the grandson, and they left.  So everybody was  preparing for Christmas at that time, so we had a  person doing little bit of work on our house and he  came and repeated what he heard, that Jacob Robinson  was lost out in the trap line, and that Alex Green had  gone out and he returned and he couldn't find no trace  of him and no tracks after awhile.  So Peter Wale told  us this, so we just sat there.  But the next morning  my grandmother got up and she usually have hot drink  when -- this time she didn't.  This was Sarah?  Yes, Sarah, Sarah Green.  And I asked her, I said, "Are you sick?"  She said  "No".  She said "I'm just troubled", he said, "about  Jacob Robinson lost".  He said "He is lost".  He said  "I seen him last night, before I went to sleep," he  said, "a picture came to me".  He said "He is lost and  he got snow-blind at the same time.  That's why he got  lost".  He said "He went in a different direction from  where his camp was."  And he said "But he is still  alive.  He made himself comfortable."  He said "He has  little fly and the two dogs beside him last night."  So the second night and the third night, and we asked  Peter Wale if they heard -- if these people have come  back from searching again, and he said "Not yet".  Just to be clear, the second and third night was after  your grandmother told you this?  Yes.  And so when she got up the fourth morning or the  fifth morning, after we heard of the disappearance of  Jacob Robinson, and he said, you know, he said, "Last 397  1 night I seen him again."  He said "He is very sick."  2 He said, "He can't get up."  He said "He put his snow  3 shoes up on each end of the fire now."  He said that  4 it's -- "If any searchs would come looking for him,  5 they would find these snow shoes stuck in the snow.  6 So that's the purpose of him putting the snow shoes at  7 each end of the fire he had."  Now he said, "He only  8 has very little wood to keep him warm".  And so the  9 people who went to search hadn't come back at all.  10 They were out three nights and they came back, they  11 said they couldn't find him.  So my grandmother, when  12 Peter Wale arrived again this day, he said, "Poor  13 Jacob Robinson, he died last night".  14 Q   Your grandmother said this?  15 A   Yes, he said "He died last night."  He said "He's got  16 his fly, two dogs are there."  He said "The snow shoes  17 are still up.  It's at the end of the fire but he  18 passed away last night."  He said "He was very sick  19 but he said the people that went to search for him  20 never going to find him."  He said "They are going in  21 a different direction than where he died."  So when  22 the searchers came back and they said no, there was no  23 trace of any tracks or anything, so Peter Wale keep  24 repeating, asking my grandmother if she was very sure  25 that he died and he said "I'm very sure."  He says  26 "I'm a great halayt, I see just the picture as it's  27 happening everyday."  He said, "I know how he was."  28 He said "He was really sick", he said, "before he  29 died", but he said "Those searchers won't find him".  30 He said "They never will.  They won't find his carcass  31 or anything".  And that's what happened, they never  32 did find him.  33 My grandmother said "There would be one person that  34 will go out later."  He said "The dogs are still  35 alive", she said, "and those dogs are going to try and  36 come back after they sense that Jake was died", so  37 Jeff Robinson went up again.  38 Q   Was this in the winter or the spring?  39 A   It's the winter.  It was in March, I think it was,  40 they went up again to make sure that the snow was  41 melting a little, so little tracks would show, and  42 they wanted -- even they knew that he had died but  43 they just wanted to find the remains.  So Jeff went --  44 I don't know who Jeff Robinson went with -- so I told  45 my grandmother about it, that these two young people  46 are going to go up, the snow has settled.  So she  47 said, "well", she said, "it's all right if he do but 398  1 they won't find his body anywhere".  He said "He never  2 will".  But he said "The dogs are trying to make  3 home".  He said "They are heading home.  One dog lost  4 his pack, one dog still has his pack on", he said,  5 "and inside that pack", he said, "rubber boots of  6 Jacob Robinson are in the dog pack."  And he said  7 "That's the dog that's going to make it home", he  8 said.  "These searchers", he said, "they are going to  9 find these dogs".  So they did.  Jeff Robinson came  10 across this dog, just ready to give in, and he had a  11 pack on, and out of the pack they found the rubber  12 boots that was in the pack sack the dog had.  They  13 returned and took the pack out, they -- the dog, and  14 they set it down.  They went ahead to see how the  15 tracks of these dogs were from; and they found the  16 second dog where he died, but then the snow melted so  17 fast up in -- where the trees were up in the mountain,  18 that the tracks were lost, the dog's tracks were lost  19 again, so they couldn't find where --  20 Q   Where Jacob —  21 A  Where Jacob was.  22 Q   Yes.  23 A   So they tried to take this dog home to Gitanmaax, but  24 it died on the way down after they had took the pack  25 off.  And when this was heard in Gitanmaax,  26 everybody -- well a lot of people went up to visit  27 John Smith, and he had in his porch the pack of this  28 dog with the rubber boots in it.  So I heard about it  29 and my mother and I went up, just to make sure it is,  30 after my grandmother told us before, and there they  31 were, in the dog pack, these rubber boots, and they  32 never found his body.  And he said "When Jacob got  33 lost", she said -- and she said she figured -- "he  34 figured", he said, "that nobody would find him, so he  35 went on ahead for awhile, deeper into the wilderness",  36 he said, "and that's where he made himself".  And he  37 said "In his heart he would rather dig himself", he  38 said, "so he said he dig the snow and that's where he  39 laid, just alongside his tent."  He said that "in his  4 0 mind" -- my grandmother said -- "he didn't want to be  41 found, his carcass or anything, and he just didn't  42 want people to find him".  43 And that's what happened to this day, they haven't  44 traced where he died or how he died, but my  45 grandmother knew that he was sick and got snow-blind.  46 So this is the strength these halayt's would have,  47 that they foretell, even though they are not there -- 399  1 she wasn't there or -- but she still knew what goes on  2 with him everyday.  This is the strength that these  3 halayt's have.  4 Q   Did she tell you all of these things?  5 A   Yes.  6 Q   And do you recall about when that was, that Jacob  7 Robinson was lost?  8 A   I can't recall the date, the year, but probably was in  9 the 40's.  10 Q   Now, you have been describing some of the beliefs in  11 the halayt and the naxnok and reincarnation.  Are  12 these just your beliefs or are they beliefs of the  13 other Gitskan?  14 A  All Gitskan knows about this belief.  We all believe  15 in it, even today we still believe in it.  It may seem  16 to other people that it's just a fairy tale, but it's  17 not to us, to the Gitskan people.  It's very true and  18 it's very much alive today when you believe in it.  19 MR. GRANT:  My Lord, I don't know if you wish me to deal with  20 the points raised by the Court, but I am prepared to  21 do that now.  22 THE COURT:  Well, my problem, Mr. Grant, is that I have no  23 difficulty, if you want to adduce evidence that the  24 Gitksan's have beliefs of the kind that have been  25 described.  My difficulty is with the admissibility of  26 the individual instances of these beliefs.  I am  27 having trouble framing in my own mind a basis for  28 admissibility.  I suppose the evidence is being led,  29 as it were, to give specific examples so as to confirm  30 beliefs, but the specific examples are not as I  31 presently view the matter, but subject to what you  32 say, probative of the beliefs themselves, either they  33 believe these things or they don't, and the fact that  34 they have specific examples which are not capable of  35 verification, as it were, lead me to think that I  36 ought not to be hearing the specific sorts of things  37 that I have been hearing this morning, but I am in  38 your hands.  I would like to be assisted by counsel in  39 that connection, if it's convenient so to do.  40 MR. GRANT:  Well, two aspects to concerns that you have raised.  41 One was the question that you seem to -- that you  42 don't have the difficulty with, and that is to the  43 relevance of the evidence.  44 THE COURT:  No, I don't know — yes, I think that's — I don't  45 have difficulty with the relevance of the evidence of  46 beliefs.  4 7 MR. GRANT:  Yes. 400  1 THE COURT:  If the witness were to say, for example, I believe  2 and the reputation or the beliefs of the Gitksans are  3 such and such, I have no difficulty with that.  It  4 would be the same as if someone said I believe in  5 Christianity and 46 percent of the population of a  6 certain place holds the same views or something of  7 that kind, that's fine, but I don't think that  8 don't think it would be relevant if somebody wanted to  9 come along and say today that I witnessed a Christian  10 miracle.  That's my present view.  11 MR. GRANT:  Well, with respect, as was led in the opening, My  12 Lord, this evidence of the spiritual belief, it's the  13 plaintiffs submission that it's much more important to  14 have the content of it than to have that there is this  15 belief.  This is the reason.  The spirituality, as we  16 referred to it in the opening, ties directly to the  17 relationship to the territory, and it is for this  18 reason that the spiritual world, as the witness  19 described last week, that they deal with the Naxnok on  20 a different level than they deal with people, chiefs  21 outside of the Feast, other relationships; that there  22 is this interconnection of the spiritual, the human  23 and the animal world and all of this interconnects  24 within the Gitskan territory.  25 Now, with respect to the evidence that this witness  26 has led, it's all her own experience, and I have been  27 trying to only adduce that evidence which is of her  28 own experience, so that you can -- it's easy, maybe  29 one may say -- as I say, I believe in the Christian  30 principles or I am a Catholic or I am an Anglican, and  31 there is this whole body of beliefs that you or I or  32 anyone can go to and say, well, this is the Catholic  33 or the Anglican theology that this person is talking  34 about, this is generally what they believe, and we  35 know that.  But here, this witness is trying to  36 explain the Gitskan spirituality, and there isn't this  37 sort of body, you say okay, Gitskan spirituality is  38 something here and I understand what that is, as does  39 everybody else, and it is for that reason that I  40 submit that it is important that the specifics of that  41 spirituality be brought out for the Court to  42 understand what it is that this witness is saying once  43 she says we have spiritual beliefs.  44 THE COURT:  Let me take this last example.  It doesn't seem to  45 me that it adds to the assertion that we have people  46 in our nation or within our group of people who have  47 the power to foretell the future.  It doesn't add to 401  1 that, to say here is an example of where it happened.  2 Either they believe these things or they don't, and it  3 wouldn't be necessary for the witness to say I believe  4 in Christianity, to prove the truth of the Christian  5 miracles that we find in the Bible.  The truth can  6 hardly be proved anyways.  And while the witness is  7 indeed giving some examples of personal experiences,  8 it seems to me that if the Court should receive  9 specific instances, if they are both relevant and  10 admissible -- and I may be talking about a question of  11 policy now -- there is no end to the amount of  12 evidence that can be adduced in support of the belief.  13 And I am not sure that it adds anything to the belief.  14 MR. GRANT:  Well, there is one thing I submit —  15 THE COURT:  I doubt if your learned friends even question the  16 fact of the belief.  17 MR. GRANT:  Well, I will try not to anticipate my learned  18 friends, except to this extent, that as not only their  19 pleadings say but as their expert reports suggests,  20 there is a thesis that these beliefs are dead and  21 gone, that these beliefs are something that may have  22 happened some other time but they are not relevant  23 today.  24 THE COURT:  There could be an issue on that, I understand that.  25 MR. GRANT:  Now, if that's — and to the extent of that issue,  26 what is important is that this witness is describing  27 events that have occurred recently and in her  28 lifetime, which are part of the foundations of her  29 belief, and I submit that that makes it relevant and  30 admissible; and it's not that we anticipate leading  31 interminable numbers of these examples but basically  32 this witness has been endeavoring to cover many areas,  33 as you know, to provide an overview and is trying to  34 demonstrate these elements of spirituality.  35 THE COURT:  Well, I don't know, of course, how far you propose  36 to carry this.  My reaction is that what I have heard  37 is -- except for the fact of the beliefs, is  38 inadmissible, but I would be glad to have whatever  39 further submissions you wanted to make on the question  40 now or at some subsequent time or -- and to hear your  41 learned friends or more or less to put myself in the  42 hands of counsel.  But I am troubled about the fact  43 that we could spend a lot of time hearing examples,  44 which, in my respectful view, don't add to the  45 question of beliefs or no beliefs.  The beliefs are, I  46 think, are a matter properly to be adduced and  47 received by the Court.  I am not -- I am repeating 402  1 myself now -- I am not satisfied that specific  2 instances are admissible.  3 Is there anything else you want to say about that,  4 Mr. Grant, or should I call your learned friends and  5 get their views?  6 MR. GRANT:  What I would ask at this stage, My Lord, is that  7 first of all I am not intending to illicit further  8 examples on this area from this witness, although I  9 may be dealing with other aspects of the beliefs, the  10 principles of the beliefs, I am not intending, and  11 that's why I wish to leave out the last example, and I  12 would propose that with respect to its admissibility  13 that you not make a ruling on it now, and that we deal  14 with this further, subsequently.  15 THE COURT:  Well, all right, subject to what your learned  16 friends say.  Is that satisfactory, Mr. MacAulay and  17 Mr. Plant?  18 MR. MACAULAY: Well, My Lord, if there is to be further evidence  19 of a like nature, that would seem that the issue  20 should be dealt with before that further evidence is  21 led.  If your lordship rules that the evidence is not  22 admissible, the evidence -- I am talking about the  23 evidence now of examples of the foundation or basis  24 for belief, then counsel for the plaintiffs will be  25 saved the trouble of having to lead evidence of a like  26 nature which may later be held inadmissible.  What I  27 am saying is that the issue should be subject of  28 submissions and of a ruling now, since there may be --  29 I don't know how many more witnesses will have  30 evidence to give of this category, but at least one  31 and perhaps more than one, and we have spent a good  32 part of this morning hearing that evidence.  Now,  33 if -- in the end, if it's held by the Your Lord not to  34 be admissible, I submit at that time, dealing with  35 matters that wouldn't count in the end, the witness,  36 so far as the evidence that Mrs. McKenzie has given, I  37 see nothing wrong in the witness saying I received  38 such and such treatment or administration from the --  39 from the haylayt for -- because I was halayt,  40 suffering in this particular case, and I was treated  41 in such and such a manner and I recovered and the  42 witness is going to say her belief is that that person  43 had the skill or the power to affect such cures.  44 THE COURT:  Well, I'm not sure I would go even that far, Mr.  45 MacAulay.  I don't think it matters that the  46 particular person, the witness or anyone else was the  47 beneficiary of this power -- 403  MR.  THE  MR.  THE COURT  9  10  11  12  13  14  15  16  17  18  19  20  21  22  2 3 MR.  24  25  2 6 THE  27  28  2 9 MR.  30  31  32 THE  33 MR.  34  35  36  37  3  39  40  41  42  43  44  45  4 6 MR  47  MACAULAY: It doesn't prove the power, it proves the belief.  COURT:  Proves the belief, that's all, and the belief, it  seems to me, is --  MACAULAY: But it's admissible to the extent that that is  within the witness's own experience of knowledge.  Most of the rest was -- were matters that have been  told to this witness by others.  Partly told and partly experienced.  For example,  she wasn't there when they found the dog with the pack  and that sort of thing, so to that extent it's not  admissible as original evidence, it can only be  admissible as part of a -- as part of a legend or as  confirmation of a belief, and unless counsel tell me  they dispute the fact of the belief, I don't see why  we are troubled by the time it takes to put all the  evidence in, because it is probably a non-issue  anyway, in the sense of -- its probably a non -- not a  controversial issue, although I don't even know.  Mr.  Grant suggested it may be controversial, I don't know.  But I think there has to be some fairly strict limit  on how much confirmatory evidence I should receive,  that is confirmatory of a belief.  MACAULAY: Well, that's, generally speaking, whether the --  my submission is that that should be decided before  other witnesses are called to give similar evidence.  Well, Mr. Grant says he doesn't propose to call -- I  think he said any other from this or examples of this  particular belief from this witness.  That's -- I have led the witness of the spiritual  belief, although in the exemplary manner, some of the  other rules she will be speaking of.  Mr. Plant, anything to submit?  Only that on the basis of the evidence that the  witness has given so far, I don't dispute the fact of  her belief.  The issue of whether the belief as a  whole continues to permeate every aspect of the  culture does remain at issue.  I see.  All right.  All right.  Well, let's go on  then and see how we get along.  As I say, it may be  that I have to draw a policy line somewhere.  I don't  know if it comes to that or not.  I haven't given it  enough thought, but I have indicated to counsel some  general views I have, and maybe the matter -- maybe  we'll be lucky and the matter won't arise again.  I  suspect it will.  In light of Mr. Plant's comments, which reinforce my  argument most strenuously, it will rise again and we  COURT:  GRANT:  COURT:  PLANT:  THE COURT  GRANT: 404  1 will deal with it.  2 MR. GRANT:  3 Q   Mrs. McKenzie, are there certain rules with respect to  4 the -- what persons, such as women who are pregnant or  5 expecting, are allowed to eat, and are these part of  6 your spiritual beliefs or your laws?  7 MR. PLANT: I'm sorry to rise on what may seem to be a rather  8 trifling point, but I think I may have heard three  9 questions in that last question, and in particular, I  10 may have heard -- I think I heard an alternative put  11 to the witness, which may not exist, that is in the  12 last part of the question, are these part of your  13 spiritual beliefs or your laws; and the suggestion  14 being that they must be one or the other, and to that  15 extent, I think the question -- well, suggests an  16 answer, and I wonder if it might be possible for the  17 question to be framed in such a way that it does not  18 suggest that answer.  19 THE COURT:  I'm sure Mr. Grant will be happy to oblige.  20 MR. GRANT:  I think what I will do, I will not only oblige but I  21 am going to leave that area for the moment and I will  22 come back to it.  23 THE COURT:  All right.  2 4 MR. GRANT:  25 Q   I would like to move into another area, My Lord, and I  26 would like to speak to you about language.  You have  27 given us many Gitksan words in the course of your  28 evidence, and I would like you to explain if there is  29 a term in Gitskan for the Gitksan language.  30 A   Yes, there is.  The last, about 10 years now, the term  31 "old Gitskan language" is used, but then, as I said  32 before, my children, my grandchildren, have cut short  33 on our language in saying a word that is incomplete.  34 Now we have to ask elders, we have to listen to this  35 and correct them, because if it goes on, our language  36 will be different from the old to the modern.  Now we  37 are trying very hard to keep the old Gitskan language  38 spoken in our area.  Now, in the area of these other  39 villages there, it is slightly different in each  40 village, like the Kitwangar, Kitwancool and  41 Kitsegukla, and then there is the Kispiox, Glenvowell  42 and Gitanmaax, and then Gisaga'as again has a  43 different, slightly different dialect, so -- but we  44 understand one another.  For instance, like I say --  45 Gisaga'as, when you ask, in English you say "what",  46 and in Gisaga'as they say "Gwii" and in Gitskan you  4 7 say "Aguu". the  405  1 Q   In Gitanmaax?  2 A   In Gitksan.  And then in Gitsaga'as they say "Gwii".  3 And then when you further down with the others,  4 Kitwangar, they say "Aguu".  Just the word "what" in  5 English.  So they are different words that they  6 pronounce a little differently on the seven villages,  7 but it's still Gitskan language, but it's just the  8 more you work towards the coast -- like we understand  9 it's in Gitskan, we understand the Tshimshian and  10 Nishga language, it's not completely different, but  11 it's just the way they -- the words are used slightly  12 different from the Gitskan.  13 Q   What does the word xsim algyax mean?  14 A   xsim algyax means in the Gitksan language.  15 Q   That's the Gitksan word for the Gitksan language?  16 A   Yes.  17 THE COURT:  Spelling please.  18 THE TRANSLATOR: xsim algyax, underline "x".  19 MR. GRANT:  20 Q   Now, is there another term for Gitksan as opposed to  21 Nisga'a language that you use?  Let me ask you this.  22 Is there a Gitksan word for the Nisga'a language?  23 A   Yes, we -- when we are referring to the people on the  24 Nass River down the coast there, we address them as  25 the Nisga'a.  26 Q   Is there different terms for the language of the  27 Gitksan in the west, in Kitwancool, and the language  28 at Gisaga'as, are there different terms in the Gitksan  29 language for those two dialects?  30 A   The dialects are slightly different.  31 Q   Is there -- do you call those dialects by different  32 names?  33 A  Well, it's just maybe there is -- I'm not too clear on  34 that, but when a group of people, like from different  35 villages, and we speak a language, we speak like it's  36 Gitxsanimx, but you can place them where they are  37 from, like the far north, the Gisaga'as, they are Bear  38 Lake people, they have a term too; and we have  39 Kispiox, the Gitanmaax, are both the same, and you go  40 further down to Kitwangar and Kitsegukla and  41 Kitwancool.  Now, when you hear these people speak and  42 you just know the locations where they are from.  43 Q   Can you tell the Court what is the significance or  44 what is the importance of your language to you to the  45 Gitksan?  46 A   To keep our history we have to keep our language.  47 That's the importance of our language, that we keep -- 406  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17 MR.  18  19  20  21 THE  22  23  24  25 THE  2 6 MR.  27  2 8 THE  2 9 MR.  30 THE  31 MR.  32  33  34  35  36  37  38  39  40  41  42  43  44 THE  4 5 MR.  4 6 THE  47 THE  like all nationalities, they have language that they  keep, so that's important to the Gitskan, is to have  our language spoken.  Q   I would like to move into another area now, and I  would like to ask you about the moving about your own  totem pole, that is the totem pole, Gyolugyet, and if  you have seen that pole or photographs of that pole  and where it was located?  A   I have seen photographs of the pole and was out at  Galdo'o.  Q   I refer the Court to tab eight, but I intend to  produce a proper copy of the photograph.  Q   Is this the photograph which you were referring to?  A   Yes, this is the photography.  Q   And is that your own photograph?  A   Yes, it is.  GRANT:   I would ask for this photograph to be marked as the  next exhibit.  There is, under tab eight, there is a  photocopy of it.  I did not have the original  photograph.  COURT:  All right.  That will be Exhibit 4, I think.  (EXHIBIT NO. FOUR - PHOTOGRAPH)  COURT:  Are you tendering it Mr. Grant?  GRANT:  Yes.  And there is a copy here for the Court, for  the witness.  COURT:  Well, it's number 3 on page 2 of tab 8, is it?  GRANT:  It's a better photograph.  COURT:  No, it's not.  GRANT:  Q   It's number 2 on the first page of tab eight.  Now, do you know when this photograph was taken  approximately?  A  Approximately 1920.  Q   Now, has this pole ever left Galdo'o?  A   No, it hasn't.  Q   Okay.  Have you been involved in any decision as to  whether that pole should leave Galdo'o?  A   I have.  Q   Can you tell the Court the circumstances of that  decision?  A  When 'Ksan village started, and it was only 1970 --  COURT:  I didn't get the name of the village.  GRANT:   'Ksan.  Apostrophe K-s-a-n.  COURT:  Was open what year, 1970?  WITNESS:  1970. 407  1 THE COURT:  Yes.  2 THE WITNESS: Now, we have a school that was set up for carvers  3 and they carved some poles for the village, the 'Ksan  4 village, to be erected in that area, so the  5 tourists -- we take tours and we have to explain to  6 these tourists the symbol of our crests.  Now, they  7 knew, the people from Victoria, the museum down there,  8 and a lady that is in charge of 'Ksan at that time,  9 was Mrs. Polly Sargeant.  Now, as I work there and  10 they knew this pole was out at Galdo'o, they took a  11 helicopter and went and seen the pole and they said  12 that it could hold -- for them to remove that pole  13 from Galdo'o and have it prepared and erected at 'Ksan  14 Village.  Now, they approached me, we had he a meeting  15 and I went to my wil'nat'ahl, I went to Violet Brown  16 and my children and we talked about it, and asking  17 them how they feel about it, what I have been asked to  18 do.  And we all felt that that pole shouldn't be  19 removed from the Galdo'o people because although we  20 have living in Gitanmaax and Kispiox, we are still  21 called the Galdo'o people and Gitksan law that no  22 totem poles will be taken out of one village and  23 erected in another village.  That's to say in a Feast  24 House you are taking that seat of that chief and taken  25 out and you no more have your strength, you don't have  26 the power, you don't have a seat in the Feasting  27 House, if totem poles are removed from one village to  28 another.  And this is a strong law among how we keep  29 our totem poles.  30 Now, if I had said yes, for them to remove that,  31 where would I put it?  I can't put it on 'Ksan ground  32 because I got -- I'm not -- I haven't got a House  33 there, Gyolugyet's House there.  For me to erect a  34 totem pole there -- so it's impossible for me to give  35 my consent for them to remove the totem pole of  36 Gyolugyet into another village.  So this is the reason  37 why we said no, because we can't.  It has to stay  38 there and it rots there, it fell, and that's it, and  39 that goes on our adaawk again, that that pole is still  40 at Galdo'o, it rotted there, that pole is Gyolugyet's  41 adaawk again.  42 Q   A couple of questions of clarification.  Where is  43 'Ksan village located?  44 A   It's located where the Bulkley Village flows into the  45 Skeena River, just at that point.  46 Q   Is it in one of the villages of the 'Ksan?  47 A   In Gitanmaax. 408  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. GRANT  Q  A  MR. GRANT  THE COURT  And you say this pole will be left at Galdo'o, that  fact is part of your adaawk.  Can you explain what you  mean by that?  :  Well, that's clear, isn't it?  Well, is what happened recently in 1970, is that part  of the adaawk which will be retold in the Feast?  If the pole is moved, it will go on the adaawk while  that pole is moved to 'Ksan, you see.  But we want our  adaawk very solid.  That's why we left the pole at  Galdo'o, so adaawks will be very solid, and that is --  wouldn't have connections with the village, in a  village of 'Ksan.  :   I note the hour, My Lord.  It may be a convenient  time to stop.  :  All right.  We'll adjourn then 'til two o'clock.  I HEREBY CERTIFY THE FOREGOING TO BE  A TRUE AND ACCURATE TRANSCRIPT OF THE  PROCEEDINGS HEREIN, TO THE BEST OF MY  SKILL AND ABILITY.  LORI OXLEY  OFFICIAL REPORTER  UNITED REPORTING SERVICE LTD.  (PROCEEDINGS RESUMED AFTER NOON ADJOURNMENT)  THE REGISTRAR:  Order in court.  Witness, I remind you you're  still under oath.  Mr. Grant?  THE COURT:  MR. GRANT:  Q  A  Q  A  Yes, My Lord, I'm going to move into the area of  territories now.  Mrs. McKenzie, could you tell the court where your  territory's located in the -- within the  Gitksan-Wet'suwet'en territory, which is the subject  of this action, by general geographical description?  The Gyolugyet territory is up in the north.  Okay.  And where is -- is it near any of the villages  of the Gitksan?  Well, where the territory is we have -- I'll say the  neighbours of the territory. 409  1 Q   Okay.  Before that is there other -- is there a  2 village or community near your territory or was there  3 a village of the Gitksan near your territory?  4 A   Yes, Galdo'o.  5 Q   Galdo'o?  6 A   Yes.  7 Q   Okay.  And you say that you would describe some of the  8 neighbours, that is, some of the chiefs who have  9 territories bordering your territory?  10 A   Yes.  11 Q   Okay.  Go ahead.  Tell the name of those people?  12 A   To start off with I have Ma'uus, that is one of the  13 neighbour I have and --  14 THE COURT:  I think we'll need a spelling of that, Mr. Grant.  15 THE TRANSLATOR: M-a-'-u-u-s.  16 THE COURT:  Thank you.  17 THE WITNESS:   The second border is Tsibasaa.  18 THE COURT:  Spelling please?  19 THE TRANSLATOR: T-s-i-b-a —  20 THE COURT:  I'm sorry?  21 THE TRANSLATOR: T-s-i-b-a-s-a-a.  22 THE WITNESS:   Next border that — of our territory is  2 3 Delgamuukw.  2 4 MR. GRANT:  2 5       Q   Delgamuukw?  26 A   Yes.  27 Q   I think the court has that spelling.  28 A   You have that.  And another territory that's border to  29 Gyolugyet's territory is Djogaslee.  30 THE COURT:  Spelling, please?  31 THE TRANSLATOR: D-j-o-g-a-s-1-e-e.  32 THE WITNESS:   And the next one would be Skiik'm lax ha.  33 THE COURT:  Spelling, please?  34 THE TRANSLATOR: K-1-i-i-y-e-m l-a-x h-a-a.  35 MR. GRANT:  I think the interpreter miss —  36 THE TRANSLATOR: Oh, I got that wrong.  That's Skiik'm lax ha.  37 That's S-k-i-i-k-'-m l-a-x h-a, Skiik'm lax ha.  38 THE COURT:  Is the other one also one of the neighbours?  39 THE TRANSLATOR: No, it isn't.  40 MR. GRANT:  No.  Mr. Interpreter, that was yourself?  41 THE TRANSLATOR: Right.  42 THE COURT:  I crossed it out.  4 3 MR. GRANT:  44  Q  Okay.  45  A  And the next one would be Wii'goog'l  46  Q  Wii'goog'1?  47  A  Yes. 410  1 THE  2 THE  THE  THE  THE  THE  3  4  5  6  7  8 MR.  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 MR.  42 THE  43  44  45  46  4 7 MR.  COURT:  I'll need a spelling of that.  TRANSLATOR:  That would be W-i-i-'-g-o-o-g'1.  COURT:  G-'?  TRANSLATOR: L.  COURT:  L.  WITNESS:   Those are just about all the borders we  know.  GRANT:  Q  A  Q  A  A  Q  A  Q  A  GRANT  COURT  GRANT  I'd like you to turn around and behind you is a map  labelled "The external boundaries of the  Gitksan-Wet'suwet'en territory", dated May 2nd, 1987,  and for the record this map is -- shows the external  boundaries as in Schedule A to the amended Statement  of Claim, and it also has internal boundaries located  thereon.  Could you come and take a look at that map and  point to the court the territory of Gyolugyet on that  map?  Just to give you some points of reference,  Hazelton is there about the middle of the map?  Yes.  Hazelton here, and this is Galdo'o and this  where Gyolugyet's territory starts is there and it  goes along and of course this is Ma'uus the neighbour  here and Antgulilbix and Tsibasaa here.  Those are neighbours as well?  Yes.  And it goes all to Delgamuukw just where all  this red lining is.  And I mentioned that I had  Wii'goog'l as one of the neighbours.  This is the  territory Wii'goog'l's here.  And it goes along this red line at the north at the  top end there where you were unable to reach?  Yes.  Yes.  Now, have you examined that map and determined if  that's an accurate -- that red line is an accurate  outline of your territory?  It's accurate.  Okay.  And those names of those neighbours that you've  referred to, those are the names -- the names you've  given are the names of the neighbours that are located  on different parts of the map?  Yes.  Okay.  Mr. Grant, when I look at that map I'm reminded of a  style of modern art called painting by numbers.  Is it  possible to have a map numbered with numbers in each  square and the name of the territory or the House that  claims it so that --  Within each of these territories, My Lord -- 411  1  THE  COURT  2  MR.  GRANT  3  THE  COURT  4  MR.  GRANT  5  6  7  8  THE  COURT  9  MR.  GRANT  10  11  THE  COURT  12  MR.  GRANT  13  14  THE  COURT  15  16  17  18  19  20  21  22  MR.  GRANT  23  24  25  26  27  THE  COURT  28  29  30  MR.  PLANT  31  32  33  34  35  MR.  GRANT  36  THE  COURT  37  38  39  40  MR.  GRANT  41  THE  COURT  42  43  MR.  GRANT  44  THE  COURT  45  MR.  GRANT  46  47  Yes?  -- is a name, and it's some distance from the bench.  Yes?  We have no difficulty in producing a copy, and I  ultimately intend as soon as the maps are completed to  produce a copy of this which would be let's say a desk  model, if I may be liberal about it.  Yes?  But this map here does have the names of the  neighbouring groups.  Yes?  All right.  If that's what you were concerned about there are  reference on them.  Well, I'm concerned about that and also the ease of  finding them and the ease of handling these names, and  again I don't want to intrude on counsel's territory,  if I can use that word, but there is it seems to me an  easier way to do this than to have the witness and Mr.  Interpreter say and spell these words for us.  There  has to be a better way than that, but I'll leave it  with you to do what you can to assist us.  Yes.  There is a listing that is being used now with  the interpreter.  It appears that there's some  corrections to be made on it and I think we could  arrange to provide -- correct it and provide a copy  for the Court's bench as well.  All right.  Thank you.  Mr. Plant looks like he's  compelled almost to spring to his feet, but he's  changed his mind.  Well, at this point I don't really want to take up  the court's time, but this is the first time I've seen  this map.  Actually we asked for a map like that in  November 1985.  I wonder if my friend would be able to  produce for me for our own use a copy of that map.  Well, I take some exception to this.  Well, gentlemen -- no, just -- Mr. Grant, please.  There's no reason for anybody to be taking exception  to anything.  Everyone seems to want to have the last  word and really it's getting quite childish.  My Lord —  Now, this is a reasonable request.  Can we not  respond to the request?  I will respond.  Yes?  My friend and the Federal Government was served with  a map of the internal boundaries identical to this  map -- 412  1 THE  MR.  9  10  11  12 THE  13 MR.  14  15  16 THE  17  18  19  2 0 MR.  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35 THE  3 6 MR.  37  38 THE  3 9 MR.  4 0 THE  41  42  43  44  4 5 MR.  46  47  COURT  GRANT  COURT  GRANT  COURT:  Yes?  GRANT:  -- on the first day, with the exception of the  colouration.  I, as counsel -- this copy was made  specially for the court, for the ease of the court,  with the colouring in. It took an extensive amount of  time for a person to do it and to put a sealant on it  so that the colours wouldn't be wiped off.  But this  map -- the only point I wish to say is my friend may  have been confused by the colouring, but this map  was -- is identical to the map that was produced to  both the Federal counsel and to my friend.  All right.  And that -- and as I say this is the only one like  this with its colour and its just for the ease of the  court.  That seems to me to be an eminently sensible  explanation.  Now, the question, however, is can you  furnish your friend with a copy or is the difficulties  you've described such that you can't?  I would -- if my friend could utilize the map that  he's already been provided with and if he wants other  copies of that map, not coloured-coded, we can arrange  for that as well, that is, copies -- in fact, I  believe we've delivered at the request of Mr. Goldie  eight copies of the map of the internal boundaries  because he was having difficulty copying them, so we  used our system to copy them, and if they need further  copies of that map of the internal boundaries that  would be fine.  But I would say that we have other  maps to be done and it's taken the cartographer a  significant amount of time to do the colouring.  I'd  rather not have to do it for all counsel, and I as  counsel don't have one in my office that's  coloured-coded either.  COURT:  All right.  Thank you.  GRANT:   I'd ask that this map before proceeding further be  entered as the next exhibit, My Lord?  COURT:  Well, for identification I should think.  PLANT: I would prefer that.  COURT:  Yes, five for identification.  (EXHIBIT FIVE FOR IDENTIFICATION - MAP OF  INTERNAL BOUNDARIES, COLOUR-CODED)  GRANT:  Now, in anticipation of the difficulties this  morning, My Lord, certain of the words which are place  names on the territory I've arranged to have typed out 413  1  2  3  4  5  6  7  8  9  10  11  12  THE  COURT  13  MR.  GRANT  14  THE  COURT  15  MR.  GRANT  16  17  THE  COURT  18  MR.  GRANT  19  20  21  22  23  THE  COURT  24  MR.  GRANT  25  26  27  THE  COURT  28  MR.  GRANT  29  THE  COURT  30  31  32  33  34  35  MR.  GRANT  36  37  THE  COURT  38  MR.  GRANT  39  Q  40  41  42  43  A  44  45  46  47  and there is a non-Indian word in the second column.  I've provided copies of these after the lunch hour to  both my friends and I have a copy for the court and a  copy for the interpreter.  I would ask leave, though,  if Mr. Sterritt could sit with me and I'm going to ask  the witness some of these names and Mr. Sterritt could  give me the numbers to which he's referring.  The  reason is is because the pronunciation of this witness  may be such that it may lead to multiple spelling, but  then I could refer to the numbers on this listing of  the place names she's referring to.  Well, Mr. Sterritt is going to be assisting you --  Yes?  -- not giving evidence I gather at this time?  He's not giving evidence at this time.  He is  assisting me and then I could refer to the notes.  Yes.  There's nothing wrong with that.  I have a copy of this list for the court.  I'd ask you now, Mrs. McKenzie, if you could give  the names of some of the creeks on your territory and  just do it slowly so that I can refer to the numbers  on this list.  Is this a list of creeks?  This is a list of geographic locations on the  territory, some of them are creeks and there are other  as you can see mountains and other geographical sites.  And geographical features on the Gyolugyet area?  Yes.  All right.  Well, then this can be Exhibit 6 for  Identification then.  (EXHIBIT 6 FOR IDENTIFICATION -   LIST OF  GEOGRAPHIC LOCATIONS AND FEATURES)  :  I'll provide another copy to the court for the  exhibit.  :  All right.  Mrs. McKenzie, you -- you don't have to make reference  to the map itself, but if you could refer to some of  the geographic locations on your territory and  particularly some of the creeks' names?  The creeks that I'm very familiar on the territory and  it's been repeated to me of the names of the creeks on  the territory, and especially after my husband made  two trips there, he understood where all these  different creeks are and this territory is all held by 414  1  2  3  4  5  6  Q  7  A  8  MR.  GRANT  9  THE  COURT  10  MR.  GRANT  11  Q  12  A  13  Q  14  A  15  THE  COURT  16  MR.  GRANT  17  Q  18  A  19  Q  20  A  21  Q  22  A  23  24  Q  25  26  A  27  Q  28  29  A  30  Q  31  A  32  Q  33  A  34  THE  COURT  35  THE  WITNE  36  MR.  GRANT  37  Q  38  39  A  40  Q  41  A  42  43  THE  COURT  44  THE  WITNE  45  46  MR.  GRANT  47  Kwamoon, Hlo'oxs, and Gyolugyet and Madeek.  Now, there are probably five or six creeks that  these people each hold where they'd be located on that  territory.  Now, the first creek would be Xsagan  Gaksda.  91, for the record, of Exhibit 6.  Go ahead?  The next one would be Xsa'an Lo'op.  93. On my numbers I'm referring to Exhibit 6.  Yes.  Go ahead?  The next one would be Xsan Gehl Tsuuts.  92.  The next one would be Xsi laa damus.  :  98.  98 on Exhibit 6.  The next one would be Xsa'n Yam.  99.  The next one would be Win skahl Guuhl.  100.  These are the creeks that I'm familiar with that's on  the territory.  And do these creeks, are they all within your  territory?  Yes, they're all in our territory.  And can you describe any mountains or other place,  geographic place names, on your territory?  There is Da'm Ansa Anguas.  104.  Now, what is that, is that a mountain or a --  It's a place at the point there.  It's within the territory?  Yes, within the territory.  :  But is it a mountain?  3S:   No.  Is it -- well, maybe you could just tell what -- how  would you translate that name Da'm Ansa Anguas?  Da'm Ansa Anguas?  Yes.  It is where you -- where you cook food, Da'm Ansa  Anguaas.  A campsite?  S:   Well, you could say that's where the people would  make their camp to go hunting.  Q   Okay.  Can you recall any other geographic names? to the  415  1 A   There's a mountain there it's called in Gitksan Andap  2 Matx.  3 Q   101.  Do you know if it's got a name on the government  4 maps?  5 A   Yes.  It's -- the name on the maps is Kyologet  6 Mountain, and there's a creek that runs from the  7 mountain there Xsi andap Matx.  8 Q   96.  Okay.  Is there any other place?  9 A   That's all.  10 Q   Just note for the record, My Lord, I didn't intend to  11 and I did not put Exhibit 6 for Identification  12 witness when she was giving those names.  13 Now, I'd like to show you another map and ask you  14 if this map or -- copies of this map have been  15 produced to my friends as well, My Lord.  The map is  16 is actually lateral.  This way it would be the same  17 geographic centre.  18 Now, have you seen that map before?  19 A   Yes.  20 Q   Is that a blowup of your territory which is on the  21 Exhibit 5 for Identification?  22 A   Yes.  23 Q   And does that have on it some of these place names  24 that you have referred to?  25 A   Yes.  They -- all the place names I've said are all on  2 6 this map.  27 Q   You'll have to turn to the reporter.  28 A   Oh, I'm sorry.  All the names that I had given are on  29 this, the Gyolugyet territory.  30 Q   And they're on this map?  31 A  And they are on this map.  32 MR. GRANT:   I just want to note for the record, My Lord,  33 there's a place Xsa'an Lo'op where the spelling has  34 been changed on this map in red.  Just to alert my  35 friends to it, Xsan To'op.  There's both a Xsa'an  36 Lo'op and a Xsan To'op on this map and both of them is  37 correct.  I'd ask that that be marked as the next  38 exhibit number?  39 THE COURT:  Yes, that will be 7 for identification.  40  41 (EXHIBIT SEVEN FOR IDENTIFICATION: - MAP OF  42 GYOLUGYET TERRITORY)  43  4 4 MR. GRANT:  45 Q   Now, you've indicated that within your territory are  46 the territories of -- within what is your territory in  47 this claim are the territories of Kwamoon and Madeek; 416  1  2  A  3  Q  4  A  5  Q  6  7  8  9  A  10  Q  11  A  12  Q  13  A  14  Q  15  A  16  THE  COURT  17  MR.  GRANT  18  Q  19  20  A  21  MR.  PLANT  22  23  THE  COURT  24  MR.  GRANT  25  Q  26  27  28  A  29  30  31  Q  32  A  33  34  35  36  37  38  39  Q  40  41  A  42  Q  43  44  45  A  46  Q  47  is that correct?  In Gyolugyet's territory here?  Yes.  Yes.  Yes, the Madeek, Hlo'oxs and Kwamoon.  Could you advise the court as to where Madeek's  territory is located within yours?  You can refer to  the map or just refer to the creek name if you wish  to?  Madeek's creek would be Xsa'an Lo'op.  93.  And what about Hlo'oxs's?  Hlo'oxs's would be Xsagan Gaksda.  Xsagan Gaksda?  Yes.  91. And Kwamoon?  Kwamoon's would be Sankisoots.  :  91?  No, I don't believe so, My Lord.  Can you just say  that name again?  Sankisoots.  : It's number 92 on the right-hand side of the column I  think.  :  92?  92, yes, My Lord. Now, where -- do you know who was  involved in the creation of Exhibit 7 of that map of  your territory?  Neil Sterritt junior.  He was the one that made the  map up because I gave him permission to put a map of  our territory, the Gyolugyet's territory.  Why was it necessary for you to give him permission?  At -- with this court case we need maps and I know no  person who make any maps and besides when I selected  Neil Sterritt junior to make maps of my territory he  was able to travel through the -- through the  territory in a helicopter.  I suppose that's what they  used at that time, so this is why he was able to put  the full details of my Gyolugyet's territory.  And have you authorized him to speak in greater detail  about your territory and its geographic location?  Yes.  Now, has your territory been described in Feasts in  the manner that you've earlier given evidence that  your adaawk had been described?  Yes.  Can you tell the court something about how your  territory has been used, what things have been taken 1  2  3  A  4  5  6  7  8  Q  9  10  A  11  12  13  14  15  16  MR.  PLANT  17  18  19  MR.  GRANT  20  21  THE  COURT  22  MR.  GRANT  23  24  THE  COURT  25  26  27  28  MR.  GRANT  29  Q  30  31  A  32  Q  33  34  A  35  36  37  38  39  Q  40  A  41  Q  42  A  43  44  Q  45  A  46  Q  47  A  417  off the territory by persons from the time of your  grandmother to now?  To put the adaawk on the territory trap lines have to  be put -- like the four Houses there and they have to  show which creek and that a trap line that belongs to  each of the houses that -- that they're under  Gyolugyet.  Okay.  When you refer there to trap lines, are you  referring to the registration of trap lines?  When I refer to the trap lines there's only two  territories there that -- well, they -- it was  registered because we were approached by the Wildlife  that we had to have our trap lines registered or else  we lose them, and this is why we had to have them  registered.  : Excuse me, My Lord, I wonder if a time frame could be  established for the approach that the witness has just  spoken of.  : I'm going to be leading that evidence in due course,  My Lord.  :  You can't do it now?  :  Well, it was just out of sequence, but I can do it  now.  :  I don't know whether the witness was approached  directly, whether this is hearsay.  I really don't  know what it's about and I don't think your friend  does either.  The description you've just given, when was this  occuring, when did this occur?  When the map was --  The registration of the trap lines that you're talking  about?  This happened when -- I've forgotten what year it is,  but at that time we had Indian agent at Hazelton and  his name was Captain Mortimer at that time and he was  the person, one of the persons that approached us that  we had to have registrations for the trap lines.  And this was in your lifetime?  Yes.  And do you remember him coming to your House?  Yes.  Or else he'd called at us -- my mother and I up  to his office in Gitanmaax.  Uh-huh.  And your mother that was Esther Holland?  Yes.  So what did your mother do when he told her this?  Well, we had -- she had to register Xsa'an Lo'op. 1  Q  2  A  3  Q  4  5  A  6  Q  7  8  A  9  Q  10  11  A  12  13  Q  14  15  16  A  17  18  19  20  21  Q  22  A  23  24  25  26  27  Q  28  A  29  Q  30  A  31  Q  32  33  34  A  35  36  Q  37  38  39  A  40  41  42  43  44  45  Q  46  A  47  418  And what name did your mother hold at that time?  Madeek.  Do you know if that is still registered in your  mother's name?  Yes, it still is .  Is part of the territory -- have you registered part  of the territory in your name?  No, I haven't.  Did your grandmother obtain things from the territory  which were used in the Feast?  Yes, there were beaver pelts that were taken out from  the territory.  Were there any special resources, and here I'm  referring to dyes or things like that that were taken  from your territory?  Yes, there's a place in our territory and I'm not too  clear on which creek it's on.  See I've never been to  this territory so I'm just -- what I've seen that  there is a little place where they get their red dye  from the rocks.  Uh-huh?  And this dye is used by -- when the carvers that carve  totem poles they go out there and get this red core  and it's used to use in paints on totem poles, and  dyes like that are used in making baskets and cedar  mats, this dye was used, the red core.  Was it used by the halayt?  Yes.  How would they use it?  They'd put it on their faces.  Was your mother -- was your -- did others who used  this recognize in the Feast Hall where this dye came  from in any way?  Will you rephrase that?  I got something else on my  mind.  I wasn't quite sure of the question.  Did those people who used the dye from Gyolugyet's  territory recognize in the Feast Hall that it was from  Gyolugyet's territory in any way?  Yes.  It was recognized and it -- especially the  halayts would use this red colour for their faces or  for dyes for their robes and head gears that are woven  and this dye is used.  So when people need this they  have to come to my grandmother and ask her permission  for them to go and get this red core and --  Okay.  And of course they -- with this they don't need very  much because it lasts a long time, a small piece 419  1  2  Q  3  4  A  5  6  7  8  9  10  11  Q  12  13  A  14  15  16  Q  17  18  19  A  20  21  THE  TRANS  22  THE  COURT  23  THE  TRANS  24  THE  COURT  25  MR.  GRANT  26  Q  27  28  A  29  Q  30  A  31  32  33  34  MR.  GRANT  35  THE  COURT  36  MR.  GRANT  37  Q  38  A  39  Q  40  A  41  Q  42  43  A  44  45  46  47  would.  Was your grandmother or the Gyolugyet at the time paid  for the use of this dye?  In a Feasting House a gift would be given to her  because she won't -- nothing is sold, it has to be  shared.  So this is why she just gives the people  permission to go and get what they need and in a  Feasting House this is referred to the people how they  got this red core and why they're giving her this gift  for it.  How did you learn of the use of this red rock from  your territory?  Because I've seen my grandmother use it in her -- in  her regalias.  She'd use it as a dye and as a paint  for her facial and arms.  Now, do you know a person named Yanxws? Now, I'll  leave that for the interpreter to spell.  Is the  pronunication Yanxws?  Yanx.  I've heard of the name, but I've never seen the  person.  LATOR:  Y-a-n-x-w-s.  :  Y-n-x-w?  LATOR: Y-a-n-x-w-s.  :  Thank you.  Can you tell the court about this man and where he  lived?  He lived on the territory there.  Uh-huh?  And it's not far from Win skahl Guuhl.  It's where he  resides almost the whole of the year. About a couple  of months he comes into the village, but he lives out  on that territory.  That was 100 that name.  Yes, I heard that.  Thank you.  And was he from Gyolugyet's House?  Yes.  Where did Yanxws die?  Yanxws died out in the territory.  And how did your family or Gyolugyet's family learn of  that?  It was known that he was sick so two of the family  went out and took care of him, but he left word with  everybody that he was not to be moved out of the  territory if he dies.  He wanted to be buried on the  territory and that's what the family did. 1  Q  2  A  3  Q  4  A  5  Q  6  7  8  9  10  A  11  Q  12  A  13  Q  14  A  15  16  17  Q  18  19  A  20  Q  21  A  22  Q  23  24  A  25  MR.  GRANT  26  27  MR.  PLANT  28  29  THE  COURT  30  MR.  GRANT  31  32  THE  COURT  33  34  35  36  37  38  MR.  GRANT  39  THE  COURT  40  41  42  MR.  GRANT  43  Q  44  45  46  47  A  420  And so he is buried on Gyolugyet's territory?  Yes.  Was this -- were you alive when he died?  No.  I never -- this was before my time.  Now, you described last -- in your evidence last week  that your mother and yourself gave your husband Ben  permission to use your territory.  Did Ben ever  exercise his rights under that permission?  Did your  husband ever use your territory?  Yes.  When did he use it?  In 1947 when he first went there.  Uh-huh?  And a year -- the next year he went out again and this  time he went up with my brother George Holland.  They  went up for beaver trapping.  And can you describe what you -- first of all, could  you -- is your husband Ben, he is still alive?  Yes.  Is he well?  No, he's not well at all in the last couple of years.  Would he be able to come to court and tell what  happened in 1947?  No, I believe not.  :   Could you describe for the court what happened when  Ben went on the territory?  : Excuse me for interrupting.  I'm not clear if this is  part of the adaawk or if it is just pure hearsay.  :  Mr. Grant?  :  This is evidence -- more recent evidence of the use  of the territory, My Lord.  It's evidence that --  :  Well, I see no harm in her saying, as she has, that  in 1947 apparently alone, or possibly not, in 1948  with George Holland he went out trapping.  But what  happened while he was there and certain details surely  is detail that can't be proven by secondary evidence,  can it?  :  Well —  :  Unless it has such notoriety and reputation in the  community that it would qualify for some exception to  the hearsay rule.  Yes, sir.  When your husband went out in 1947 was  there any event that recalls the time that he was out  in terms of unusual event, that you know of, that is  that happened right in Hazelton where you were?  In 1947 he went out there alone -- 1  Q  2  A  3  4  5  6  7  8  9  10  11  Q  12  A  13  14  Q  15  16  17  18  A  19  20  21  Q  22  A  23  24  25  Q  26  A  27  28  29  30  31  32  33  34  35  36  37  38  Q  39  40  41  42  43  44  45  46  47  421  Uh-huh?  -- because my brother wasn't home yet, he was in the  Second World War and he hadn't come home, so Ben left  and went on the territory and after -- he was there  when Marion Jack and Tommy Jack went to the territory,  Gyolugyet's territory, so they did the trapping of  beavers there.  Now, while they were there -- they  left on the 2nd of May of 1947 and they got in to  Hazelton on the 29th of May.  And during they stay  there we had floods during the month of May.  In Hazelton as well?  In Hazelton, yes, floods up on the Kispiox River and  the Skeena River.  Now, before you go any further, did Ben describe the  events of what occurred out on the territory during  those floods in any Feasts or any -- in public  gatherings of the Gitksan?  He didn't -- he didn't have to because it's our  territory.  We're the ones that have to give it all to  the chiefs --  Yes?  -- when we give him permission, even though he's my  husband.  But it's the Gitksan law that I, the owner,  has to give her permission even if he's my husband.  Right.  So that the people, like the border people of the  territory, will know that he's there because he has to  go through these -- some of these territories to get  into our territory and for us to announce it that  he'd -- he'd be sent out there by us to do the  trapping.  And my mother Esther Holland asked the  people that whoever our neighbours are is not -- will  not think that Ben is trespassing, that he's -- he's  going to our trap line.  But this has to be told to  people so that when they meet Ben on their territory  they know that he's just going through the trail in  their territory to get to ours.  Okay.  I understand that in 1947 in the month of May  while your husband was on the territory there was  flooding in Hazelton and there was flooding in the  area.  Now, I also understand that there was, as a  result of that flooding, there were certain -- you  were -- well, as a result of that there may have been  certain things that happened on the territory.  Now, without describing what happened on the  territory as a result of the flooding, can you tell  the court whether Ben later described those events, 422  1 what happened in that month of May on Gyolugyet's  2 territory, did he describe those events in a public  3 meeting or to other Gitksan chiefs what he did?  4 A   Yes, he did because the neighbours of the territory --  5 Q   Yes?  6 A   -- would give Ben when they knew that he was going to  7 go out to our trap line, they gave him the directions  8 because this is the first time he go there, and he  9 didn't have anyone with him to show him where the  10 place is, but -- so when he came across to even in  11 town these neighbours directed him by telling how far  12 it is from there and to the next territory again.  13 This is how he got his directions of -- by the people,  14 the neighbours.  15 Q   When he came back from the territory, did he describe  16 to you what happened while he was out there?  17 A  Well, they were nearly -- the first time like I said  18 when --  19 Q   Just -- just I want you to understand before you go on  20 is that Mr. Plant has raised some objection and I want  21 to know -- I don't want you to tell me at this point  22 what happened, I'd just like you to tell me if he told  23 you what happened?  24 A   Yes.  25 Q   Okay.  2 6 A   Every trip he made he always have my mother and I,  27 when she was still alive, and tell us what happened  28 and where these creeks are and what mountains, and  29 he'd seen all these and the distance in between these  30 creeks and these lakes.  He and I we had a very good  31 picture of it after he was there.  32 Q   Did he describe to other chiefs in a Feast or in other  33 public gatherings what happened in the month of May  34 1947 when the flooding occurred and he was on  35 Gyolugyet's territory?  36 A   He did a trapping on our territory, but on the way  37 back they tried to make it home.  He -- they knew that  38 the rivers are risened so they came back.  39 MR. PLANT: Excuse me, Mrs. McKenzie.  It does sound as though  40 the witness is about to give evidence of what she was  41 told and my objection to that evidence stands.  42 MR. GRANT:  Okay.  43 THE COURT:  Well, it does seem to me, Mr. Grant, to be hearsay  44 unless it fits some exception.  Can you suggest what  45 exception it might qualify under?  46 MR. GRANT:  Well, maybe what I'll do is I'll leave this area  47 right now because I think the witness may have 423  GRANT  Q  misunderstood my question and I was endeavouring to  elucidate the exception under which it would come  under, which would be the exception of --  THE COURT:  Well, you see let's assume for the moment that he  did at a public meeting describe his adventures in the  summer of 1947.  That would be -- that would be  admissible if it affected the state of mind of the  witness, if it was important to know that she had that  information as an explanation for why she said or did  something else, but other than that it's just plain  ordinary common garden variety hearsay, isn't it?  I'll leave the point, My Lord, and I'll go on.  I'd like you to explain the rights of the Gitksan  to use their father's territory and if there's a  Gitksan term for that you could maybe start by giving  that Gitksan term and then maybe explain what those  rights are?  I believe you referred to umnigwootxw.  :  Spell it, please?  LATOR: U-m-n-i-g-w-o-o-t-x-w.  :  All right.  And what does that mean, please?  Can you explain what you mean by umnigwootxw?  Umnigwootxw are the -- it's a territory belonging --  the way I'll explain it, on Gyolugyet's territory now  we -- the Gyolugyet before me is Joseph Danes and he  has children and when he died some of these men,  they're men now, would want to go on the territory  where their father had trapped and that's what  umnigwootxw is.  And this doesn't mean that they own  the territory and they could -- they're given  permission, but once in a while they have to go when  they decide they want to see the place where they're  father is before, so they go there and trap and that's  where umnigwootxw comes in is that the children going  over the trap line to trap and that doesn't mean they  own it.  Q   Can you give the names of some of Joseph Danes'  children who would be in that category?  A   Yes.  There's Wallace Danes and Freddy Danes.  Q   What about your children, do they have rights of  umnigwootxw?  A   Yes.  I have a son Ben McKenzie junior and I have a  grandson Kenny John McKenzie, and in the last four  years now my husband is unable to go out on his own  territory.  And Ben and Kenny would travel with him if  9  10  11  12 MR.  13  14  15  16  17  18  19  2 0 THE  21 THE  22 THE  2 3 MR.  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  A  COURT  TRANS  COURT  GRANT  Q  A 424  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  A  THE  MR.  THE  MR.  THE  MR.  A  Q  A  COURT  GRANT  COURT  GRANT  COURT  GRANT  -- when Kenny was small on week-ends he'd go out with  his grandfather on his territory and the same way with  my son.  So after four years Ben was unable to go out  trapping on his territory so he send our son Benny and  our grandson Kenny to go and do the trapping on his  trap line.  And he did say at that time that he's  unable to go so he has the children to go and do the  trapping.  And he did say that while he's alive these  two will trap on his territory and whatever the amount  of money these two get when they sell the fur, they  come to their grandfather and their father and they  let them know.  So my husband Ben said "Well, we'll  split the difference."  He said "You've done a lot of  work and that's my territory."  So this is how he has  the money from the territory.  And Ben said as long as  he's alive these two will carry on, but when he dies  there's -- they can't go every year on this territory.  Only when they'd ask permission from -- from the chief  that they would be permitted to go there once in  awhile.  This is how these umnigwootxw stand.  It  doesn't belong to them, but they could be given  permission to go there once in awhile.  I'd just like to refer you to Exhibit 5 which is the  map underneath and if you could point out to the court  where Luutkudziiwus was or Ben your husband's  territory was located on that map, maybe in relation  to Hazelton, which again is in this centre part here?  There it is right here.  This area here.  Where the  green is it's Luutkudziiwus's territory. It's got his  name on there.  The area in the green and this would be between  Hazelton and --  Babine.  -- Babine?  Okay.  :  On the east boarder of the claim there?  :  On the eastern boarder, yes, the eastern side of the  plain area.  :  Mr. Grant, what is the distinction between the red  and the green, anything special?  :  Yes, My Lord that colour coding is of assistance in  the sense that it's by clan.  The green is the Lax  See'l clan, the yellow is the Lax Skiik or Eagle clan.  :  Eagle?  :   It's over just on this side here.  You have not  heard evidence of that thus far.  The brown is the --  the brown is Lax Gibuu, and the red or pinkish colour 425  1 is the Giskaast or Fireweed.  2 THE COURT:  So the Gyolugyet area which looks to me to be red  3 you say that's brown?  4 MR. GRANT:  Yes.  When you see it -- to assist the court because  5 of the distance --  6 THE COURT:  Yes?  7 MR. GRANT:  — we've highlighted it with red tape, but the  8 inside boundary is brown.  9 THE COURT:  Yes.  Thank you.  10 MR. GRANT:  I note the time, My Lord, it may be a convenient  11 time for the break.  12 THE COURT:  All right.  Yes.  We'll pick up after the  13 adjournment.  14 THE REGISTRAR:  Order in court, this court stands adjourned for  15 15 minutes.  16  17        (PROCEEDINGS ADJOURNED FOR AFTERNOON RECESS)  18  19 426  Mary McKenzie (for Plaintiffs)  In chief by Mr. Grant  1 MR. GRANT:  2 Q  Mrs. McKenzie, how do you know or how have you learned  3 the names, the geographic names that you have given  4 for Gyolugyet's territory?  5 A  My grandmother went on the territory and so did my  6 mother, and from them that I am familiar with the  7 names of these creeks.  8 Q  Have these names been described in the Feasts?  9 A  Yes.  10 Q  You were talking about Yanxws.  You said he was — he  11 died before you were born.  Was he alive in your  12 mother's or your grandmother's lifetime?  13 A  My grandmother's.  14 Q  Can you explain to the Court why you have not been out  15 on Gyolugyet's territory personally?  16 THE COURT:  Well, I'm sorry, is that true that you have never  17 been on the territory?  18 THE WITNESS:  No, I have never been there, but my husband went  19 there and I am familiar with the names, and especially  20 my husband there, he draw a sketch or a map for us.  21 THE COURT:  So when you went trapping with your husband, as you  22 described earlier, that was on his territory, not on  23 yours?  24 THE WITNESS:   Yes.  25 THE COURT: I understand.  Thank you.  26 MR. GRANT:  27 Q  Okay.  Can you explain why you went to your husband's  28 territory and not to your territory?  29 A  The reason why is that his trap line is all prepared  30 for his trapping, that he has cabins built on his trap  31 line, he has several routes of trap line that he  32 follows, and so with our territory it hasn't been  33 used, no one has been there because I'm young and my  34 children are very small at that time, so it was left  35 that way.  Now, it's allowed that I go with my husband  36 to his trap line, and it's shorter place from  37 Gitanmaax to his trap line where it starts.  38 Q  When you say it is allowed that you can go on your  39 husband's trap line, are you referring to under  40 Gitksan law?  41 A  Yes.  42 Q  Can you explain that a bit further, what you mean by  43 that? What is the rule that you are discussing,  44 referring to there?  45 A  When people are married, it's a law that I could go on  46 with him on his trap line, when he's there, and it is  47 the same way with him, he's able to go with me on my 427  Mary McKenzie (for Plaintiffs)  In chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR. GRANT  THE COURT  MR. GRANT  Q  Q  A  trap line, if I go with him there.  Was it normal that when there were two chiefs that  were married to each other that you would go to the  husband's territory more often than the wives?  That's not so. We are both chiefs and we could go to  his whenever we can, and the same way with my  territory, we can go there for maybe one season,  trapping season.  Okay.  Are there any — since you have been Kwa moon  and Gyolugyet, has there been anyone that disputes  Gyolugyet, the territory you described as your own as  being Gyolugyet's, amongst the Gitksan?  Has any other Gitksan chief claimed Gyolugyet's  territory to you?  Yes.  Today I discovered about five years ago that one  of Joe Danes' son, Wallace Danes, registered a trap  line, Andap Matx, which is against our law.  He can go  there by my permission as amnigwootxw, but he, for  some reason, he registered without confirm it to me  and my family.  That's one hundred, My Lord, on the list.  Thank you.  Has anyone in the Feast Hall, when you have described  your territory or when your mother described the  territory, these different Feasts you have been  describing, has anyone disputed that that is  Gyolugyet's territory?  There is — between when my grandmother was alive and  my mother, there was a lot of times that they had to  go in Court about the territory as people were coming  in and trying to take over.  Are you aware of geographic places where or geographic  descriptions of Ben McKenzie's territory, your  husband's territory, or can you describe some of the  geographic locations on that territory?  When you start out from the village of Gitanmaax, the  time we were travelling, we started on what is called  the Babine Trail, and that trail was used by the  Hudson's Bay Company during their freighting from  Gitanmaax to Babine.  So there was mileage put on in a  trail, and they called it the Hudson's Bay mileage,  and I believe that because it seems that one mile is 2  miles to me at that time, and the first creek that we  come to on his territory is —  If you can't recall the name right now —  I know, but on the map it is named as the Nation 428  Mary McKenzie (for Plaintiffs)  In chief by Mr. Grant  1 River.  2 Q  Nation river?  3 A  Yes.  4 Q  Okay.  Go ahead.  5 A  And to go from there, from Gitanmaax to Hazelton to  6 this point is 18 miles.  7 THE COURT:  80 or 18?  8 THE WITNESS:   18.  9 MR. GRANT:  18.  10 THE WITNESS:  Yes.  And then we come across to his home place.  11 MR. GRANT:  12 Q  Yes.  13 A  They called it — Ben calls it home place because they  14 built a house there when Ben's grandmother was still  15 alive, and that was their homestead up there.  They  16 raised cattle and horses. And before they were  17 married, Ben's grandparents, Ben's grandmother owned  18 this territory of Luutkudziiwus.  19 Q  Was she Luutkudziiwus?  20 A  No, she wasn't at that time, but it was the territory  21 of Luutkudziiwus and she was in the house — in the  22 clan at that time, amnigwootxw.  23 Now, across the river, Suskwa River, is a territory  24 of old McKenzie, David McKenzie, and he did the  25 trapping there while Ben's grandmother did the  26 trapping on Luutkudziiwus's trap line, so they always  27 met, so this is how they got married, is knowing each  28 other from the territory.  So that made it a big area  29 for both of them to do the trapping because they were  30 joined together.  This Suskwa River just divided the  31 territory between them.  So they have a big territory.  32 So they either go to the Lax See'l territory, they go  33 to Giskaast, and this territory belongs to the  34 Wet'suwet'sen people.  35 Q  Which one, the Giskaast?  36 A  The Giskaast, David McKenzie.  37 Q  Okay.  And why was that? Why do you say it was  38 Wet'suwet'sen?  39 A  Because David McKenzie, he is a Wet'suwet'en chief  40 of ~  41 Q  do you know which House of the Giskaast that is?  42 A  He is Smogelgem.  43 Q  Go ahead.  You were talking about going out on the  44 territory yourself.  45 A  Yes.  When they — Mrs. McKenzie died, that left Ben  46 to trap on their trap line.  Now, he would go, his  47 grandfather would tell him to go on his trap line when 429  Mary McKenzie (for Plaintiffs)  In chief by Mr. Grant  1 he — he was getting old and he couldn't travel,  2 couldn't do anymore trapping, so he sent Ben out to  3 his trap line.  And what Ben made out of that trap  4 line, he would give it to his grandfather, and then  5 what he got from their own trap line, he kept for  6 himself.  Now, when David McKenzie died, Ben never set  7 foot again on that territory because it belonged to  8 his grandfather and it is a Wet'suwet'en territory, so  9 he kept to his own part, Luutkudziiwus*s trap line  10 territory.  11 Now, there are mountains there.  I went over with  12 him once on his trap line.  It usually takes him  13 three — two weeks to go over by himself on the trap  14 line, but he took me with him, and it took us three  15 and-a-half weeks just because I went with him, you  16 travel slower.  First time on snow shoes too, so you  17 have quite a problem with me.  But I did go with him  18 on this trap line, and I know where the places are,  19 the names of the places, because I have been there  20 with him.  And he has a mountain.  It's called Hahla  21 Gyoodit, is the name of the mountain that he does his  22 trapping on.  And there is two creeks that flow.  Xsi  23 Hahla Gyoodit is the name of the creek that run from  24 there.  25 THE COURT:  Have you got it, Madam Reporter?  26 THE REPORTER:  Yes, My Lord.  27 MR. GRANT:  28 Q  You said there were two creeks.  They were both the  29 same name?  30 A  Yes, they called it the Big Xsi Hahla Gyoodit and the  31 Little Xsi Hahla Gyoodit.  32 Q  Okay. And are there other names that you recall on  33 Ben's territory, place names that you went to?  34 A  On the Babine Trail his territory closes off at the  35 flat at 33 mile from Gitanmaax, and it sort of turns  36 and going up to Babine Lake.  And the flat there is  37 34.  38 Q  Go ahead.  39 A  This is, as far as I have travelled with him, on these  40 territory.  Now, there is the mountain close by and  41 it's called Ant'aahlxw.  We always go to pick berries.  42 THE TRANSLATOR: I didn't get that word.  43 THE WITNESS:  Ant'aahlxw.  44 MR. GRANT:  45 Q  And you say that is close by.  Is that close by —  46 A  Babine Trail.  47 Q  And ~ 430  Mary McKenzie (for Plaintiffs)  In chief by Mr. Grant  1 A  And where the home cabin is, it's right behind the  2 home cabin, and you don't have to walk too far to go  3 up to the berry patch.  4 Q  Did Ben build places out on his territory aside from  5 his home cabin?  6 A  Yes.  Every line that he has — he doesn't have just  7 the one line because he has to set 475 traps on  8 different lines, and he doesn't work them at one time  9 but that's how many traps he has on his territory, and  10 one month he travel on two trap lines.  To work that  11 out, he would quit that and then go to another  12 direction on the trap lines he had, but when I went  13 with him that time, and with all the traps he wanted  14 to know just how many traps he had on his territory,  15 and that's how many we counted, 475 traps.  16 Q  And what did you do on his territory? Did you stay  17 out there for any length of time?  18 A  Well, I had to travel with him everyday while he goes  19 on his trap lines, setting his trap line or going over  20 it; and with the depth of the snow up in the higher  21 mountains, about seven or eight feet, and it took us  22 sometime to travel.  And there is a place there that  23 is a deep canyon and the avalanche comes down there,  24 so we sort of had to wait 'til it's cooler in the  25 evening to go through in a place.  26 Q  Did you stay at the home cabin at any time while Ben  27 was out travelling on the territory?  28 A  Yes, I did.  When our son was born in 1937, he was  29 just a month old.  I had to go up there in December.  30 At that time we had ten horses and he does the  31 guiding, he guides for the big game hunters or mining  32 outfit, he guides in the summertime, so he has to have  33 horses. So  we cut hay out there where there is a  34 field, we cut our own hay for the horses.  So someone  35 has to stay at the home cabin to feed the horse and to  36 see that they get — have water, so I stayed at the  37 cabin.  Like I said before, it takes him two weeks  38 before he returns back to the home cabin, and I be  39 alone with one infant, feeding the horses everyday.  40 n  do you have any fishing sites that belong to  41 Gyolugyet?  42 A  Yes, I do have.  In our — my grandmother and my  43 mother had said we did have a fishing place.  Then the  44 late Albert Tait, he told me that we have a fishing  45 place on the Kispiox River.  46 Q  And where is that located? Where is the fishing site  47 located? 431  Mary McKenzie (for Plaintiffs)  In chief by Mr. Grant  1  A  2  Q  3  A  4  MR.  PLANT  5  6  7  8  9  THE  COURT  10  11  12  MR.  PLANT  13  14  15  16  MR.  GRANT  17  18  19  20  21  THE  COURT  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  MR.  GRANT  45  THE  COURT  46  MR.  GRANT  47  Q  On Kispiox River.  Is it near any community?  I get mixed up with my —  : Well, before the witness answers, again, I am not  certain if this is part of the adaawk of a House or  this is just another example of hearsay.  It sounds  like she is just repeating something that the late  Albert Tait told her.  :  But it was a statement made as to a territorial  right, wasn't it, or a public right — public or  private right I should say.  : Well, it sounds as though it was a private right,  but — and the statement was not made in the context  of the Feast Hall or the adaawks, so far as I know  where the testing process, so-to-speak goes on.  Well, with respect, my position is, My Lord, that  this is — I have been talking about our territory,  which was described, and she indicated on many  occasions how her territories were described at the  Feasts.  Well, I have heard it and I am going to reserve on  its admissibility.  It does sound to me like the sort  of thing that is discussed in the Australian case  where Mr. Justice Blackburn posed the typical  question, my grandfather told me this is our band or  our clan's land.  Mr. Justice Blackburn said that was  admissible in a generous application of the reputation  exception to the hearsay rule.  I am not sure that  anything turns on the difference between a grandfather  and Albert Tait in this context, and I intend no  disrespect to either of those gentlemen, and I tend to  think that it's — that's the sort of thing that's  properly admissible, which in my view is quite  different from the narrative sort of happenings the  witness was giving earlier this afternoon. But your  objection, Mr. Plant, is recorded, and we'll have to  have a discussion about this sometime soon. And  counsel perhaps had best get ready to instruct me in  that regard.  I must say, just at the adjournment I  looked at the — at Phipson, and I looked at that  passage of the Australian case, and it seems to me it  is quite well set out and particularly in the  Australian case.  Yes.  All right, Mr. Grant.  Can you describe where you have had a chance — while 432  Mary McKenzie (for Plaintiffs)  In chief by Mr. Grant  1  2  3  4  5  6  7  6  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. GRANT  THE COURT  MR. GRANT  Q  MR. GRANT  counsel have  describe now  you know the  that --  You see, the  That fishing  father is of  so when he —  fishing whene  that fishing  Spell it pi  Yes.  W-i-1  word is g-y-e  Exhibit 6.  Thank you.  been discussing with the Court, can you  where your fishing site is located and if  name of that site, if you can give  late Albert Tait, we're his wilxsibakxws.  — his father is related to us and his  Luus's House, so we are the wil'nat'ahl,  he's had permission from us to do his  ver he's up in that area, and the name of  is Wil Nii Skihl Gyet.  ease.  , one word, second word is N-i-i, third  -t.  I'm sorry, 106 in the list of  THE COURT  Now, you  Could you  Is it nea  I'm getti  My Lor  this, but  asking to  she's ind  if I get  for her.  Well, I  that come  put the q  forgetful  think cou  circumsta  Toews in  which cou  available  bit to sa  certainly  the witne  about it  work, the  indicated that was on the Kispiox River,  clarify where that fishing site is located?  r a village or a village site of the Gitksan?  ng all my maps mixed up.  d, I would ask leave of my friends to lead on  I don't want to lead.  The only reason I am  lead is because I think the witness, as  icated, is getting a bit confused.  I think  her to a geographic site, it would be easier  MR  GRANT:  Q  think that counsel, if he has instructions  from the witness, is entitled, after having  uestion to the witness and for reasons of  ness or tiredness has delayed her answer, I  nsel can lead the witness in proper  nces.  It's all well set out in the case of  the Grand Pacific Coal Railway about 1960,  nsel might usefully have a look at, if it's a  I think — perhaps it's stretching it a  y you can lead on it, but you can  — you are certainly not foreclosed because  ss can't remember the question.  You can go  circuitously, if you wish.  If that doesn't  n you can lead, as that case suggests.  Okay.  I would just like you to take your time, and  can you — you have described where Gyolugyet's  territory is, in the northern part of the territory of  the Gitksan.  Can you describe where your fishing site  is in relation to that territory?  I'm getting a little confused.  The territory of the 433  Mary McKenzie (for Plaintiffs)  In chief by Mr. Grant  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  fishing places.  Okay. Would it assist you — have you seen a map of  where your fishing site is located?  I have seen it, and it is not only Gyolugyet's places  there, there is a couple more somewhere in that area.  Okay.  I am going to show you a copy of a map which  has fishing sites on it, and ask if you recognize it.  Copies of these have been produced to my friends.  It's right in here where the fishing place is and it's  Xsan.  That's the Skeena River.  There is a large map on the right-hand side with a  "See inset" on the left-hand side, as you face it with  the "See inset" on the right-hand side.  Have you  looked at the "See inset"? On looking at the map, can  you locate your fishing site in relation to one of the  community sites or village sites of the Gitksan?  Would you rephrase that again.  Well, it indicates Kuldoe Indian Reserve.  Now, is  that the village around which your fishing site is  located?  Yes.  Now, does that location of your fishing site, where it  is labelled on that map, does that — is that your  understanding of the fishing site of Gyolugyet is  located?  In other words, is it correct?  Yes, it is correct.  I would ask this map be marked as the next exhibit.  Mr. Plant?  Well, for identification.  If I may so submit, My  Lord, the author of the map hasn't been identified,  the circumstances surrounding these creations — I  mean, the map has the very spot on it that the witness  has been searching for, and that's now being  identified, it says so right on the map, and I don't  object to it being marked for that purpose at this  time.  All right.  Well, we'll mark it now for  identification.  I'm not sure it will make much  difference at the end of the day but we'll mark it.  I  think it's number 8, is it?  (EXHIBIT NO. 8 FOR IDENTIFICATION - MAP)  THE COURT:  Does "IR" stand for Indian Reserve?  MR. GRANT:  Yes.  Just for the record, it's my understanding  this map has been prepared by Mr. Sterritt and Mr.  Marvin George, both of whom have provided summaries of  A  Q  A  Q  A  MR. GRANT  THE COURT  MR. PLANT  THE COURT; 434  Mary McKenzie (for Plaintiffs)  In chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR.  THE  MR.  THE  MR.  reports made.  PLANT: If I may say so, My Lord, part of the problem that I  am faced with is that I only received this map on  Monday, and I haven't really had the opportunity to  inspect it with the care that would be necessary to  test all of the many things that it may actually say.  COURT:  Well, it's a pretty simple map.  It wouldn't take a  great deal of —  PLANT: It was submitted with a half a dozen or other so  maps.  COURT:  GRANTs  Q  Well, it's marked for identification.  Could you — do you recall any of the fishing sites  that belong to Luutkudziiwus; and could you give an  indication as to whether any of those sites that  you're familiar with —  THE  THE  THE  THE  MR.  THE  THE  MR.  COURT:  WITNESS  COURT:  WITNESS  GRANT:  COURT:  WITNESS  GRANT:  Q  Yes, his fishing sites, a  on the Skeena River, four  Gitanmaax to Kispiox.  Four miles?  Four miles.  From —  From Gitanmaax.  To Kispiox.  Towards Kispiox?  Yes, towards Kispiox.  House of Luutkudziiwus,  miles on a highway from  is  Is it on the same side of the river as the highway or  on the opposite side?  A  It's on the opposite side.  Q  Okay.  And I may have missed this but did you  indicate — is it a location of a creek or anything?  A  With the Luutkudziiwus's House and his wil'nat'ahl,  there is — there is a lot in the wil'nat'ahl and in  the four mile canyon there, they have several fishing  places where they set their nets, not only on the  Cedar Creek but on — right in the canyon they have  three or four there.  Q  Okay.  Did you ever go to any of Luutkudziiwus's  fishing sites with your husband?  A  1958 I stayed there for about six weeks, a month  and-a-half, doing canning and drying fish because in  1958 and '59 I was there.  The late Martha Brown was  living right at that place.  Every summer she moves  over there.  Q  Yes.  A  And she — at this time in '59 she was quite old.  So 435  Mary McKenzie (for Plaintiffs)  In chief by Mr. Grant  1 she sent word over to Ben, my husband, that she want  2 us over, to have company, because Ben was just out of  3 the hospital then at that time.  So we did.  And I  4 put — I helped her put some salmon up for her that  5 summer.  And she was the Ligi Hla'am, she was the one  6 that took Ben's mother's name.  7 Q  That was her name?  8 A  Yes, it was Ben's mother at first.  And then it passed  9 onto Martha Brown, Mrs. John Brown.  There is two or  10 three Martha Browns.  11 Q  This is not the same Martha Brown that holds the name  12 Kliiyem lax haa, is a plaintiff?  13 A  No, Martha, as Mrs. John Brown.  14 Q  What did you do when you were out at the fishing  15 grounds that morning?  16 A  There were a few of Ben's relatives were over there,  17 Helen Danes was there that summer, I was there and  18 Thomas Wright was doing the fishing.  He went out on  19 the boat to set nets out in the canyon, and this fish  20 was all shared with the Helen Danes and Helen Wright  21 and Ben and I and Mrs. Brown.  Then we had another  22 elderly lady that asked permission from Ben if she can  23 stay with us that summer, so she can put up some  24 salmon for herself, and both Mrs. Brown and Ben said  25 it was all right, so Fanny Robinson came and put her  26 tent up at that site.  27 Q  Did you go back there the following year?  28 A  No.  But we always go over it when we need salmon, we  29 go and get what we need, but Helen Danes was there  30 with Thomas Wright.  31 Q  And what House is Helen Danes?  32 A  Luutkudziiwus.  33 Q  Now, you have given evidence last week that your  34 father was Haluus.  And was he a chief?  35 A  Yes, he was a chief in the House of his own.  36 Q  And did he have a territory or does Haluus have a  37 territory?  38 A  Yes.  39 Q  Can you describe to the Court where that territory is  40 located?  41 A  It's right across the village of Kitwangar, and just  42 slipped my mind the Gitksan name of that place, but  43 it's called the Seven Sisters.  44 Q  And it's in the area of the Seven Sisters?  45 A  Yes.  46 Q  Is there a creek along the border of your father's  47 territory? 436  Proceedings  1 A  Yes, there is creek.  It's called, on maps on  2 highways, is the West Bolder Creek?  3 A  Yes.  4 Q  Called West Bolder Creek?  5 A  Yes.  6 Q  Did you ever go out to your father's territory?  7 A  No, I was quite small at the time and I had to go  8 attend school, so I didn't go out with them, but I was  9 placed with my aunt when I was attending school.  10 Q  And which aunt was that?  11 A  Angus Johnson.  12 Q  And was that Angus Sutton or Johnson?  13 A  No, Angus, my mother's sister.  14 Q  Where was that?  15 A  In Gitanmaax.  16 Q  My Lord, it may be a appropriate time to break.  17 THE COURT:  Yes, all right.  We'll adjourn then.  I suppose —  18 well, I do think we should sit regular hours tomorrow,  19 unless anyone thinks otherwise.  20 MR. GRANT:  That's satisfactory.  21 THE COURT:  There is one matter that I wonder if it would be  22 useful, and it may be it's too soon, if we should have  23 a discussion about this hearsay question.  Perhaps  24 it's too soon, but could counsel perhaps give some  25 thought to having a half hour before a court sitting  26 day — not a half hour before court but a half hour  27 before the usual time before we start to hear  28 evidence.  29 MR. MACAULAY: Which of the several points —  30 THE COURT:  Well, I think it may be difficult to define  31 precisely the problem, but I think the extent to which  32 hearsay evidence is admissible in the sense that we  33 have been hearing it today, I think we should try and  34 resolve that for all future witnesses, and it may be  35 that a dialogue with counsel would be of some  36 assistance in trying to arrive at some definition.  I  37 am reluctant to keep hearing evidence subject to  38 objection.  You lose track of it and you don't know  39 later on what's in and what isn't.  Counsel don't know  40 what isn't and what is in evidence, and I have a sense  41 now of what I think is admissible and what isn't, but  42 I would like to have the assistance of counsel in that  43 regard.  44 MR. MACAULAY: Well, I think it would be appropriate that counsel  45 for the plaintiffs lead off the discussion.  46 THE COURT:  Yes, I would think that's right.  47 MR. GRANT:  Yes, we would anticipate doing that, and we agree 437  Proceedings  1 that next week we could — tomorrow we maybe could  2 speak to it but schedule a day next week to schedule  3 it.  4 MR. MACAULAY:  So we aren't talking of cross purposes, it would  5 be useful if the counsel for the plaintiff to perhaps  6 define very briefly the issues that are going to be  7 covered so that counsel for the Crown office and the  8 Attorney General could address the same issues.  9 THE COURT:  Well, I think that's so.  I have in mind the issues  10 we have talked about this afternoon.  That's really  11 what I have in mind.  12 MR. MACAULAY:  And does it include the issue that I referred to  13 and in fact submitted very briefly that there was no  14 problem about the application of the hearsay rule,  15 this is the evidence of the witness that she was ill,  16 that she received certain treatment, administered by a  17 person she identified and about which she could give a  18 personal account of and then recovered and concluded  19 that it was as a result of a treatment.  I think that  20 that wouldn't offend any —  21 THE COURT:  Well, I don't think it offends any rule except  22 possibly the overarching rule of relevance.  23 MR. MACAULAY: Well, is relevance one of the topics that we  24 should address your lordship on?  25 THE COURT:  Yes, I should think so.  I still have the view that  26 if someone believes something, it isn't necessary to  27 and it may not be relevant to prove all the bases for  28 or any of the bases for that belief.  As I said  29 before, I don't — and I don't have any authority for  30 this — it may be a matter of policy that someone has  31 to draw a line somewhere, and looking around, I claim  32 the best qualification to draw the line.  But I can be  33 persuaded to put some fingers on the line, if I can  34 use that political expression, after I have heard  35 counsel, but I don't want to speak dogmatically at the  36 moment.  It may be that the evidence we heard about  37 the illness and the treatments she received and the  38 attribution that she places on those facts perhaps is  39 admissible, although there either has to be some limit  40 to the number of those kinds of examples, I just don't  41 know; and my defensive reaction is to say that none of  42 it is necessary and therefore — and none of it is  43 relevant.  44 The important thing is whether or not there is a  45 belief but that may be too simplistic, and I would be  46 glad to hear counsel on that issue as well.  47 Thank you.  10 o'clock. 438  Proceedings  1  2  3  4  5  6  7  8  9  .0  .1  2  3  4  5  6  7  8  9  0  1  2  3  4  5  6  7  8  9  0  1  2  3  4  5  6  7  3  I HEREBY CERTIFY THE FOREGOING TO BE  A TRUE AND ACCURATE TRANSCRIPT OF THE  PROCEEDINGS HEREIN TO THE BEST OF MY  SKILL AND ABILITY.  LOftl 0)  OFFICIAL REPORTER  UNITED REPORTING SERVICE LTD.

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