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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1987-05-13, 1] British Columbia. Supreme Court May 13, 1987

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 142  1 Smithers, B. C.  2 May 13, 1987.  3 THE REGISTRAR:  In the Supreme Court of British Columbia this  4 13th Day of May, 1987.  Delgamuukw, also kown as Ken  5 Muldoe, suing on his own behalf and on behalf of all  6 members of the Houses of Delgamuukw, Haaxw and Hage,  7 and others, against Her Majesty the Queen in the Right  8 of the Province of British Columbia, and The  9 Attorney-General of Canada, at bar, my lord.  10 THE COURT:  Gentlemen, do you want to say anything about the  11 application for intervenor status?  A motion has been  12 filed but no time has been set.  I understand the  13 applicant is more or less waiting for some indication  14 from the registry as to when the application might be  15 heard.  And I don't know what his views are, and I  16 don't know what the views of counsel are, but I am  17 happy to hear the matter at any time.  18 MR. RUSH:  Well, my lord, I would propose that a time certain be  19 fixed for the submissions on it, and perhaps that  20 could be after the court hours or before the court  21 hours.  22 THE COURT:  I don't think we should cut into our time  23 unnecessarily.  How about 9:30 tomorrow.  24 MR. RUSH:  That would be satisfactory to me.  25 MR. GOLDIE:  Yes, my lord.  26 THE COURT:  All right.  I will very the registry — Mr. Goldie?  27 I am sorry, I indicated I would hear Mr. Rush further,  28 if he wished, on this question.  29 MR. RUSH:  We have no objection.  30 THE COURT:  All right.  Thank you.  31 MR. GOLDIE:  Before I begin, there is a point I wish to raise  32 about some observations made by my friend yesterday.  33 We were given a list, some by name and some by  34 number, of the lay witnesses.  And I wonder if it  35 would be convenient for my friend to provide us with  36 the names of the other lay witnesses?  My note is that  37 after the three named witnesses concluding -- well,  38 the three were Mary McKenzie, Olive Ryan and Mary  39 Johnson, then there would be three witnesses who were  40 not named, one of them being Mr. Alfred Joseph.  He  41 was named.  And then I may not have the sequence  42 correctly but my note is there appear to be seven  43 witnesses by number who haven't been named, and I  44 wonder if it would be convenient for my friends to  45 provide us with the names and some indication as to  46 when the summary of their evidence would be available.  47 MR. GRANT:  Yes, my lord.  I dealt with this matter yesterday. 143  1 I will speak to it.  2 Just to be clear, the order of the witnesses, my  3 friend has mis-stated it a bit, and I want to be clear  4 for the record.  It was Mary McKenzie first, Mary  5 Johnson second, Olive Ryan third.  Those are the  6 Gitksan witnesses that I referred to.  The first three  7 of the Wet'suwet'en witnesses will be Alfred Joseph  8 first, Madeline Alfred second, and Pat Namox third.  9 There are further Wet'suwet'en witnesses, and we will  10 provide the names of those in due course when we have  11 the ordering.  And there are further Gitksan witnesses  12 at the conclusion of the Wet'suwet'en witnesses, but  13 what we have provided now to the court and counsel  14 with the first six witnesses' names.  15 With respect to the summaries, my lord, with  16 respect to the summaries, we are endeavouring to  17 prepare those summaries.  As we are providing here and  18 we are going to provide them as soon as possible.  We  19 appreciate -- I appreciated the comments made by my  20 learned friend, Mr. Goldie, on Monday, where he said  21 that he would ask that they be provided when they are  22 ready.  And I understood -- he appeared from his  23 comments to understand the concerns or the  24 difficulties.  But we are endeavouring to prepare the  25 summaries and as soon as the summaries of the next two  26 witnesses are completed, we will be producing them.  27 THE COURT:  At the moment there has only been the summary of the  28 one witness?  29 MR. GRANT:  Of Mrs. McKenzie, yes.  And for these first three  30 witnesses, I must say, I anticipate or I hope to be  31 able to provide the summaries of the third and second  32 witnesses at the same time.  And possibly even the 4th  33 and 5th witnesses at the same time.  So we hope to  34 have that completed as soon as possible.  I cannot  35 commit myself to a time on that given the vagaries of  36 what might happen in the court during the trial.  37 MR. GOLDIE:  Well, as I said on Monday, the difficulty is that  38 that may lead to delay in the cross-examination.  39 I would ask my friend one piece of information, he  40 has given us two names, Olive Ryan, Madeline Alfred,  41 neither of whom appear to be named plaintiffs.  I  42 wonder if he could tell us what Houses each belongs  43 to?  44 MR. GRANT:  My lord, I think that this type of matter, we can  45 arrange between counsel on this.  I don't know if we  46 can deal with all of these matters in the court.  47 MR. GOLDIE:  Perhaps not, but these happen to be very important 144  1  2  3  4  5  6  7 THE  8  9 MR.  10 THE  11 MR.  12 THE  13 MR.  14  15 THE  16 MR.  17  18  19  20  21  22  23 THE  24  25  26  27  28  29  30  31  32  33  34  35  3 6 MR.  37  38  39  4 0 THE  41 MR.  42  43  44  45  46  47  COURT  GRANT  COURT  GRANT  COURT  GRANT  COURT  GRANT  COURT  GRANT  COURT  GOLDI  matters and they have a direct bearing on how we make  our preparation for the cross-examination of witnesses  and I think it is for the benefit of counsel for  Canada also that I am asking this question about the  identification, if that's all we can have at this  time.  Was an order made regarding the furnishing of these  summaries?  I believe there was.  There were directions, I believe.  Directions rather than orders?  Yes.  And was a time limit fixed for this sort of thing?  By agreement at the time there was 14 days before  their evidence was the time limit given.  :  All right.  :  Let me be clear, my lord, my friend has referred to  two, I think there is more information he may want,  and we can discuss this at the break.  I am not trying  to hide anything from him.  But rather than spending a  great deal of time --  because there are probably  other things he may want to know.  There is another  witness he may want to know what House they are in.  :  Counsel will appreciate that I find it awkward to be  trying to extract information from counsel.  On the  other hand, it seems to me that Mr. Goldie's last  request is a relatively inoccuous one and I would have  thought that the House to which these two witnesses  belong would be a simple matter that could be conveyed  without any difficulty.  But, again, I say that I find  it to be uncomfortable, I find myself uncomfortable in  pressing counsel who are resisting in the way that has  been made apparent this morning.  So I will say no  more at the moment.  But Mr. Goldie may renew his  application after the morning break if he is so  advised.  :  I am certainly not trying to be coy, but there is a  fuller discussion rather than just the name of the  Houses that we would like to give them information on.  Before the summaries come in.  :  Mr. Goldie?  E:  As I said yesterday, the desirability of a  defendant's opening at this point is at least  questionable in the ordinary case.  But so far as I  can see, the plaintiffs' opening yesterday makes  specific reference to pleadings only with respect to  the Province.  This is somewhat ironic as the  Province's pleadings are directed to meeting the case 145  1 that is found in the plaintiffs' pleadings and yet we  2 find a good part of their opening directed to our  3 pleadings.  4 Now, the reason for my concern is that the  5 characterization of the Province's case is inaccurate  6 and incomplete.  And I don't propose to try and remedy  7 all of those shortcomings, but there is one notable  8 omission from the review of the Province's case  9 conducted by the plaintiffs which makes it necessary  10 for me to make these observations at this time.  11 Now, as my friends noted, this case differs from  12 Calder.  The prayer for relief in that case consisted  13 of one paragraph and it reads as follows:  "Wherefore  14 the plaintiffs claim a declaration that the aboriginal  15 title, otherwise known as the Indian Title, of the  16 plaintiffs to their ancient tribal territory  17 hereinbefore described, has never been lawfully  18 extinguished."  19 That was the entire prayer for relief.  The prayer  20 for relief in the present case runs to something like  21 16 paragraphs.  And I have handed up to the registrar  22 a black book in which I have put some of the  23 references that I may wish to refer to.  And under tab  24 one, there are pages 13, 14 and 15 of what I see as  25 the statement of claim as of March, 1987.  I don't  26 think prayers for relief have changed but anyway they  27 run to some 16 paragraphs.  And they contain a number  28 of paragraphs which go very far indeed.  They seek a  29 declaration that the plaintiffs have a right to  30 ownership and jurisdiction over the territory, the  31 territory being, of course, the claimed territory.  32 They seek:  "A declaration that the plaintiffs'  33 ownership of and jurisdiction over the Territory  34 existed and continues to exist and has never been  35 lawfully extinguished or abandoned."  And so on.  Then  36 they seek a number of declarations which restrict the  37 "Province's ownership of land, mines, minerals and  38 royalties within the Plaintiffs' Territory..."  A  39 declaration "...that the defendant Province's  40 jurisdiction over the territory, the Plaintiffs and  41 members of their Houses represented by the Plaintiffs  42 is subject to their rights of ownership and  43 jurisdiction."  And a declaration that the Province is  44 not entitled to interfere with it, and so on and so  45 forth.  And a declaration that the defendant Province  46 cannot issue licences or permits authorizing the use  47 of any resources.  And then they seek damages from the 146  1 Province for the wrongful appropriation and use of the  2 territory.  3 If these pleadings were taken at their face value,  4 many of the claims could not even be entertained by  5 this court.  No court in Canada has the jurisdiction  6 to make declarations which go so far as to say that  7 the ownership and jurisdiction over this land is not  8 vested in the Her Majesty the Queen in the right of  9 the Province.  10 Now, there is some ground for thinking that the  11 plaintiffs do not intend to go so far as their  12 pleadings suggest.  In a affidavit filed in support of  13 an application for leave to appeal to the Supreme  14 Court of Canada from a recent judgment of the Court of  15 Appeal, setting aside two certificates of Lis Pendens  16 in this case, Mr. Adams, an associate of Mr. Rush,  17 swears in his affidavit, and this is not in this book,  18 my lord, it's -- he swears, and I quote, "The  19 applicants make to attack on the allodial title of the  20 Crown in the main action, but rather seek declarations  21 of their aboriginal title and rights existing as  22 burdens on Crown title.  The Applicants seek only to  23 protect theri claimed interests against Crown grants  24 of Crown title in fee to third parties pending  25 resolution of the main action." Now what that,  26 whatever that means, the Province must assume and has  27 assumed, that somewhere in between the pleadings and  28 the statement of that kind, the plaintiffs intend to  29 assert, as they allege in their pleadings, various  30 matters which go to the question of ownership and  31 jurisdiction and which distinguish this case from  32 Calder and which presumably require the very far  33 ranging lay and expert witnesses the evidence will  34 call.  35 I emphasize this because it is in the novelty of  36 those allegations which distinguishes it from Calder.  37 Another aspect which distinguishes it from Calder is  38 the status of the plaintiffs.  39 As originally filed, there were some 48 plaintiffs,  40 each of whom was alleged to be the hereditary chief of  41 the named House.  Each plaintiff was therefore said to  42 represent an identified class, all of whose members  43 apparently had the same interest.  The case as now  44 presented is somewhat different.  There are 54 named  45 plaintiffs, if my count is correct, of whom  46 approximately 39 represent the members of their House  47 alone, while some 15 represent the members of their 147  1 own House and the members of other Houses.  In Calder  2 the plaintiff sued on behalf of themselves, the Nishga  3 Tribal Council and named Indian bands.  Indian bands  4 are entities known to the law.  Whether the members of  5 two Houses can be represented by one hereditary chief,  6 whether they all have a common interest so they can be  7 represented by one, is a matter to be seen.  I mention  8 all of this because it has a bearing on the defences  9 which have to be filed.  10 Another difference, and one which has made it  11 virtually impossible to consider admissions, is the  12 change in the external boundaries.  In Calder the  13 boundaries were those which had been asserted, I  14 believe in 1913, they didn't change in the course of  15 the case, in this case there have been significant  16 changes.  And the last of which I am advised was made  17 in the amendment approved here on Monday.  18 Now, out of all of this, the understanding of the  19 Province is that there are three main questions to be  20 answered:  The first is whether the rights which the  21 plaintiff say support their assertions of ownership  22 and jurisdiction arise out of aboriginal or native  23 title or the common law, if one wants to put it that  24 way, or the Royal Proclamation.  The second are what  25 are the elements required to be proven in support of  26 the native title said by the plaintiffs to be to  27 support their assertions of ownership and  28 jurisdiction?  And the third, if such rights, if the  29 plaintiffs' ancestors once enjoyed them, have been  30 extinguished or modified?  31 Now, the plaintiffs have characterized the  32 Province's defence in a number of ways, and I am not  33 going to bother your lordship with, you heard them  34 yesterday.  35 Mr. Grant said that it was important that there be  36 placed before you the historical matrix to the  37 resolution of legal issues, and what I take issue with  38 here is not that proposition, but the characterization  39 of the Province's defences, by reference to the  40 plaintiffs' views of historical matters.  41 As I said, we have pleaded to the case that we  42 understand is put forward by the plaintiffs' pleadings  43 and we do not agree in any way, shape or form to the  44 characterization of the defences that was put before  45 you yesterday.  46 I now come to an omission with respect to the  47 Province's defences, which I think is important, and I 148  1 think your lordship ought to have it now rather than  2 later, because if your lordship thought that what you  3 heard yesterday was the whole of the defendant's case,  4 that would be, in my submission, misleading.  5 And I want to do this with a minimum of references,  6 but just enough to give your lordship a sense of what  7 the -- what it is that I am speaking about.  8 And I want to refer very briefly to the  9 constitutional position.   Prior to 1871, and as  10 effected by British Columbia's union with Canada in  11 that year.  Now prior to July the 20th of 1871, the  12 government of British Columbia as a colony established  13 by Imperial statute, had all the powers necessary to  14 provide for the internal government of the colony.  15 Local legislative powers were exercised subject to the  16 Imperial power of disallowance and reservation, to the  17 formal instructions to the Governor, and to the  18 general doctrine of repugnancy.  19 I have put under tab two, my lord, an extract from  20 the Letters Patent appointing James Douglas, governor  21 and Commander-in-chief of the Colony of British  22 Columbia, which,  of course, was the mainland colony  23 before British Columbia and Vancouver Island were  24 joined.  And I referred to the prayer paragraph  25 numbered four at the bottom of the first page, which  26 states:  We do by these presents further give and  27 grant unto you, the said James Douglas, full power and  28 authority, by Proclamation or Proclamation to be by  29 you from time to time for that purpose issued under  30 the Public Seal of Ourt said Colony, to make, ordain,  31 and establish all such laws, institutions, and  32 ordinances as may be necessary for the peace, order,  33 and good government of Our subjects and others  34 residing inOur said Colony and its Dependencies:  35 Provided that such laws, institutions and ordinances  36 are not to be repugnant, but, as near as may be,  37 agreeable to the Laws and statutes of Our United  38 Kingdom of Great Britain and Ireland."  39 Now, "Provided that all such laws, institutions and  40 ordinances of what nature or duration soever, be  41 transmitted under the Public Seal of Our said colony,  42 for our approbation or disallowance."  43 Those are the well-known provisions of disallowance  44 and reservation.  And your lordship will recognize the  45 words peace, order and good government.  And then  46 under tab three, I put the instructions, an extract  47 from the instructions to James Douglas, and these set 149  1 out some restrictions on the making of the laws that  2 he was empowered to make and which later, of course,  3 the legislative council could make.  Not one of them,  4 of course, restricted him in the making of laws  5 relating to Indians.  6 Now peace, order and good government have been  7 judicially recognized as providing for the full range  8 of internal government.  And nothing limited the  9 governor's powers with respect to Indians, nor was  10 there any such limitation on the powers of the  11 legislative council when it was formed.  The  12 particular relevance of this lies in the fact that the  13 civil power in British Columbia prior to 1871 had as  14 complete authority over the Indian residents as it had  15 over the white residents.  But when British Columbia  16 joined Canada, the colony's legislative powers were  17 subjected to the division of powers in sections 91 and  18 92.  And, section, head 24 of section 91, effectively  19 transferred the authority over and responsibility for  20 Indians as Indians and lands reserved for them to the  21 Dominion, or as we now refer to it, Canada.  22 Thereafter, it was beyond the competence of the  23 Province to legislate with respect to Indians as  24 Indians and thereafter the subject matter of Indians  25 and land reserved for Indians was exclusively the  26 field of the Dominion's legislative and administrative  27 powers.  The subdivision of laws for peace, order and  28 good government, of course, gave rise to the dominant  29 feature of Canadian constitutional law until recent  30 times.  31 Now, the point of all of this, is that it will be  32 necessary to look at many laws of the colony to  33 ascertain the position of Indians in British Columbia  34 prior to 1871, and to determine whether any of the  35 rights asserted by the plaintiffs here could co-exist  36 with colonial legislation.  Now, I have put, under  37 tab, some of the leading constitutional cases but I  38 want to give a example of a colonial law which I think  39 is relevant, my lord, because of the references that  40 were made yesterday to Joseph Trutch.  And the one  41 that came to my mind is what is known as the Telegraph  42 Ordinance of 1865.  It authorized an overland  43 telegraph right-of-way which traversed the claims  44 area.  It ran from roughly from southeast to the  45 mid-point just beyond, well, it authorized the  46 right-of-way throughout the claims area.  The actual  47 right-of-way was cleared, and construction made prior 150  1 to 1871, up to near the present village of Kispiox.  2 That particular ordinance empowered the promoters or  3 the undertakers of the line to maintain a telegraph  4 line over any unappropriated and unoccupied Crown  5 lands.  And authorized the use of unappropriated Crown  6 lands not reserved for Indians for the telegraph  7 stations and to take from such lands, woods, timber,  8 et cetera.  Amongst other things, the court will be  9 invited to consider whether that statute and others  10 like it, which were not passed for the purpose of  11 denying aboriginal title, but were passed for the  12 purpose of the general welfare of the colony, whether  13 that kind of statute is an exercise of soverignty  14 incompatible with aboriginal rights and title, over  15 unoccupied and unappropriated Crown lands.  As I have  16 said, and this, I come to what I think is an important  17 part of my submission, once past the date of union,  18 the sole responsibility for and authority over Indians  19 rested with the Dominion.  And your lordship will be  20 invited to consider the effect of the terms of union.  21 And term 13 provided for the Indians and the  22 provisions of land for reserves.  And it opened with  23 these words:  "The charge of the Indians, and the  24 trusteeship and management of the lands reserved for  25 their use and benefit shall be assumed by the Dominion  2 6 government."  27 And in 1875, the Attorney-General of the Province  28 could say that the effect of that was that the colony  29 was unable to hand over to the trusteeship of the  30 Dominion, a community of Indians.  I keep emphasizing  31 this because this was a point that in my friends'  32 characterization of the Province's defence, they made  33 no reference at all to.  34 Now, the Province has never wavered in its position  35 that its sole responsibility left to it after 1871,  36 was to supply lands as the Dominion required and it  37 has met that responsibility, and it is Canada and  38 Canada alone which must deal with any further demands  39 of the kind that your lordship is hearing now.  Now,  40 the legal implications of this transfer of  41 responsibility were developed in a series of cases and  42 I am only going to mention three, because they are  43 sufficient for the purpose of my submission this  44 morning.  And I can summarize these by saying this:  45 That by 1910, it had been established that under head  46 24 of section 91 of the what is now the Constitution  47 Act of 1867, which used to be known as the British 151  1 North America Act, 1867, under that head the Dominion  2 succeeded to all of legislative and administrative  3 jurisdiction of the Province over Indians and lands  4 reserved for the Indians; that that transfer carried  5 with it no proprietary rights, so far as the Dominion  6 was concerned; that while the provinces had no  7 obligations in respect to Indians or lands reserved  8 for Indians, the Dominion in dealing with the Indians  9 resident in a particular province, dealt with them on  10 behalf of Canada as a whole and not on behalf of that  11 Province.  12 My lord, my friends referred yesterday to the St.  13 Catherine's Milling case.  And I have put a few pages  14 from that case under tab four.  It is, of course, from  15 that case that the word "burden" comes from that  Mr.  16 Adams used in his affidavit that I first referred to.  17 The court there had to consider the effect of a  18 surrender by Indians in a territory of what is now in  19 Ontario, to the Dominion, of their interest in lands  20 which were within the ambit of the Royal Proclamation  21 of 1763. The Dominion by a treaty with the Indians in  22 question, of 1873, took a surrender of that interest  23 and assumed certain obligations in return.  One of  24 them being the appropriation of reserves, the other  25 being the payment of annuity, and another, the payment  26 of annuities.  The issue in that case was whether the  27 Dominion, by taking the surrender, succeeded to the  28 beneficial interest of the Indians.  The court held or  29 the Judicial Committee held that the Dominion acquired  30 no interest and the benefit of removing the burden of  31 Indian title fell wholly to the Province.  Beyond the  32 fact that the surrender was made to it, and that was  33 the basis of his main argument, the Dominion said by  34 virtue of head 24 of section 91, we have a interest in  35 those lands.  And the committee said, at page 59, and  36 that's in the book, of the report, your lordship will  37 see at the beginning of the first complete paragraph  38 these words:  "In the course of the argument the claim  39 of the Dominion to the ceded territory was rested upon  40 the provisions of 91 (24), which in express terms  41 confer upon the Parliament of Canada power to make  42 laws 'for Indians and lands reserved for the Indians.'  43 It was urged that the exclusive power of legislative  44 and administration carried with it, by necessary  45 implication, any patrimonial interest which the Crown  46 might have in the reserved lands..."  47 Then I skip down to the last sentence in that 152  1 paragraph:  "It appears to be the plain policy of the  2 Act..."  That is to say, the British North America  3 Act, "...that in order to ensure uniformity of  4 administration, all such lands, and Indian affairs  5 generally, shall be under the legislative control of  6 one central authority."  7 That, of course, was recognized under the terms  8 under which British Columbia joined Canada in 1871.  9 Now, under the next tab, I have set out some  10 extracts from the case of Ontario Mining Company vs.  11 Seybold, decided in 1903.  Now, the issue between  12 Canada and Ontario arose out of the same lands.  After  13 the surrender by treaty in 1873, Canada appropriated  14 reserves for the use and benefit of the Indians in  15 accordance with what the plain terms of the treaty.  16 In 1886, a band residing on one of these reserves  17 surrendered a portion to the Dominion under the terms  18 of the Indian Act of 1880.  That Act, which contains  19 words which are there today, in trust to sell the same  20 and invest the proceeds and pay interest from such  21 investment to the Indians and their descendents  22 forever.  The Dominion sold some of those lands.  The  23 Province of Ontario challenged the title of the  24 Dominion's grantees and it was held, following the St.  25 Catherine's case, that the effect of the original  26 surrender in 1873 gave the Dominion no proprietary  27 interest and that when it purported to sell those  28 lands, formerly reserves, it was in reality purporting  29 to deal with lands of Ontario which were  30 unencumbered - even by the treaty obligations to set  31 aside reserves and had no such power to do so.  In  32 other words, the appropriation of the land  33 constituting the former reserves by the Dominion was a  34 nullity.  35 And at page 82, your lordship will find set out  36 and, I am not going to read it in total, beginning at  37 the 4th line, about a third of the way down the page,  38 after stating the argument of the counsel for the  39 Dominion, and it was in terms, of course, of the  40 grantee of the Dominion, the judicial committee said  41 this:  "This argument assumes that reserves 38 B was  42 rightly set out and appropriated by the Dominion  43 officers as against the Government of Ontario, and  44 ignores the effect of the surrender of 1873 as  45 declared in the previous decision of this Board.  By  46 section 91 of the British North America Act, 1867 the  47 Parliament of Canada has exclusive legislative 153  1 authority over 'Indians and lands reserved for  2 Indians.' But this did not vest in the Government of  3 the Dominion any proprietary rights in such lands, or  4 any power by legislation to appropriate lands which by  5 the surrender of the Indian title had become the free  6 public lands of the province as an Indian reserve, in  7 infringement of the proprietary rights of the  8 province."  And then his lordship went on to refer to  9 another judgment of the board and concluded:  "Let it  10 be assumed that the government of the province, taking  11 advantage of the surrender of 1873, came at least  12 under a honourable engagement to fulfil the terms on  13 the faith under which the surrender was made, and,  14 therefore, to concur with the Dominion Government in  15 appropriating certain undefined portions of the  16 surrendered lands as Indian reserves.  The result,  17 however, is that the choice and location of the lands  18 to be so appropriated, could only be effectively made  19 by the the joint action of the two governments."  20 Now, it will be observed that in the case of  21 British Columbia, term 13 avoided that particular  22 difficulty because it provided for the mechanism of  23 selecting lands reserved for the Government of Canada  24 wished to allot as reserves.  25 Now, the last case arising out of the same treaty,  26 the same set of circumstances, is found under tab six,  27 Dominion of Canada versus Province of Ontario, and in  28 that case, the Dominion sought to fix Ontario with the  29 cost of certain of the annuities.  It says, all right,  30 you, Ontario, have succeeded to the benefit of the  31 1873 treaty, we are, we, Canada, are under an  32 obligation to pay annuities, you ought to repay us  33 some of that cost.  34 THE COURT:  Who were these annuities payable to?  35 MR. GOLDIE:  To the Indians.  The Dominion under the treaty  36 obligated itself to pay annuities to the Indians as  37 part of the treaty.  It did so, I suppose, because it  38 thought it was going to get in return a proprietary  39 interest in the lands.  40 Now, the court said of that particular argument,  41 and this is at page 646, which I have set out in the  42 extract, and it's the top paragraph:  "Again, it seems  43 to their Lordships that is relation of trustee and  44 cestui que trust, from which a right to indemnity  45 might be derived, cannot, even in its widest sense, be  46 here  established."  Now, that argument was that the  47 Dominion was in the position of trustee and the 154  1 Province was in the position of a cestui que trust.  2 And the argument, the legal argument was that the  3 Dominion under that circumstance could recover monies  4 paid out for the benefit of the beneficiary.  The  5 court rejected that proposition.  And said in the  6 beginning of line four:  "The Dominion government were  7 indeed, on behalf of the Crown, guardians of the  8 Indian interest and empowered to take a surrender of  9 it and to give elquivalents in return, but in so doing  10 they were not under any special duty to the province.  11 And in regard to the proprietary rights in the land  12 (apart form the Indian interest) which through the  13 Crown enured to the benefit of province, Dominion  14 government had no share in the it all.  The only thing  15 with regard to which the Dominion could conceivably be  16 thought trustees for the province, namely, the dealing  17 with the Indian interest, was a thing concerning the  18 whole Canadian nation.  In truth, the duty of the  19 Dominion Government was not that of trustees but that  20 as ministers exercising their powers and discretion  21 for the public welfare."  22 And earlier, at page 644, the court said this, and  23 it's the last two sentences in the mid-paragraph:  "In  24 making this treaty..."  that's the treaty of 1873,  25 "...the Dominion Government Acted upon the rights  26 conferred by the constitution."  And there the court  27 is referring to head 24 of section 91.  "They were not  28 acting in concert with the Ontario Government but on  29 their own responsibility, and it is conceded that the  30 motive was not any special benefit to Ontario but a  31 motive of policy in the interests of the Dominion as a  32 whole."  33 Now, the necessary corollary was that the Province  34 was precluded from surrender  negotiations with the  35 Indians resident within their boundaries.  That was  36 the situation then and it is the situation today.  37 And there are these significant words at page 645.  38 And it's the last sentence in the second complete  39 paragraph about two-thirds of the way down the page.  40 "When differences arise between the two governments in  41 regard to what is due to the Crown as maker of  42 treaties from the Crown as holder the public lands  43 they must be adjusted as invested by the Crown with  44 its rights and responsibilities as treaty maker and as  45 owner respectively."  46 It is those two different visions which must be  47 kept in mind in considering the Province's defence. 155  1 So, since 1871, British Columbia could not, if it  2 wanted to, negotiate with Indians resident here with  3 respect to aboriginal title.  There is only one  4 authority who can negotiate with and for the Indians  5 and that is Canada.  The pleadings were amended on  6 Monday have added a reference to Treaty 8.  Your  7 lordship will hear of Treaty 8, which Canada  8 negotiated in 1899.  If dealt with lands partly in  9 British Columbia and partly is what is now Alberta,  10 the Yukon territory and the Northwest Territories.  It  11 was negotiated without the assistance, assent or  12 agreement of British Columbia.  Now, fortunately,  13 British Columbia has acknowledged that any obligations  14 to set aside lands selected by the Dominion within the  15 area of Treaty 8 is covered by term 13 of the terms of  16 union.  17 Now, it is against that evolving constitutional  18 background that the final settlement between the  19 Province and the Dominion took place, over the  20 implementation of term 13.  And there were a lot of  21 misunderstandings and differences of opinion.  And I  22 don't propose to trace in detail this history.  It is,  23 however, another feature of this case that was not  24 considered in Calder.  And the reason for that was  25 that it was unnecessary for the court to consider it  26 in terms of the issue that was placed before it.  27 But in the defence that has been raised to the  28 allegation of present day jurisdiction and ownership,  29 in this case, the Province has made reference in its  30 defence to have the historical events which culminated  31 in the adoption and implementation by the two  32 governments of the report of the Royal Commission on  33 Indian Affairs.  That was alluded to by my friend.  34 And that implementation was by legislation enacted in  35 1919 and 1920 by the two governments, and by the  36 passage of Orders-in-Council in 1923, 1924 and 1938.  37 Now as these events unfolded, the two, as between  38 the two governments, so did the claims of the native  39 groups resting upon aboriginal title.  And it is an  40 important part of the Province's case, which was not  41 alluded to by my friends, and this is the omission  42 that I say is sufficiently significant for me to make  43 this submission to your lordship now, it is an  44 important part of the Province's case to show the  45 interaction of these claims and the relations between  46 the two governments as I, as it was, and I repeat only  47 the Dominion Government which could speak for the 156  1 native groups.  2 Now, I will, without getting into the evidence at  3 all, I ask your lordship to note these things:  First,  4 the agreement between Canada and British Columbia to  5 settle all outstanding matters relating to Indians  6 which my friends referred to as the McKenna-McBride  7 Agreement, excluded consideration of the aboriginal  8 title by the Royal Commission.  Mr. McKenna, for the  9 Dominion, recognized that the British Columbia reserve  10 system, as it was in colonial days, was one which  11 differed in terms from the treaty system utilized in  12 the central provinces although having the same purpose  13 in mind.  14 The Dominion passed an Order-in-Council in 1914  15 providing the Native Groups access to the courts on  16 the issue of aboriginal title.  The native groups  17 refused to accept the conditions set out in the  18 Order-in-Council, that was a Dominion  19 Order-in-Council, and continued to press the Dominion  20 to facilitate a reference to the Judicial Committee,  21 something the Dominion had no power to do.  22 The Royal Commission sat throughout the Province,  23 some Native Groups repeated demands based on native  24 title, as my friends indicated, others did not and  25 confined themselves to reserve requirements.  After  26 the Royal Commission's report, which was rejected as  27 inadequate by the Native Groups, the Dominion in 1922  28 and 1923 sought to arrive at agreement with the Native  29 Groups.  There were discussions between the Dominion  30 and the Native Groups which, if they had been brought  31 to a conclusion, would have resulted in a surrender of  32 aboriginal title - if it existed.  These discussions  33 failed, the Province was not involved.  The Dominion  34 deliberately and over the protests of the Native  35 Groups implemented the Commission's report and by  36 Order-in-Council 1265, Dated July 19, 1924,  37 acknowledged that British Columbia had done what was  38 required of it under term 13, and all outstanding  39 differences between the two governments has been  40 resolved.  There was a 1938 Order-in-Council of the  41 Province which constituted the formal act of transfer  42 to the Dominion of all lands in British Columbia set  43 aside for the use and benefit of Indians except those  44 to be determined under Treaty 8.  45 It will be submitted, and this is the defence that  46 is raised in this case, that in doing so Canada fully  47 alive to the consequences, bound the Indians in 157  1 respect of claims against the Province based on  2 aboriginal title once and for all.  I will come to  3 what claims they can make as a consequence of that.  4 British Columbia complied with the provisions of  5 the Terms of Union, Canada acting within its  6 constitutional powers acknowledged this.  And I make  7 reference, my lord, to Order-in-Council 1265 of July  8 24, which is set out under tab eight and the relevant  9 portion begins on the second page with the words, "AND  10 TO RECOMMEND:"  And that is, as I say, the  11 Order-in-Council, the Federal Order-in-Council:  "That  12 the Report of the Royal Commission of Indian Affairs  13 as made under date of the 30th day of June, 1916, with  14 the amendments thereto as made by the representatives  15 of the two Governments, Mr. W. E. Ditchburn,  16 representing the Dominion Government, and Major J. W.  17 Clark, representing the Province, in so far as it  18 covers the adjustments, readjustments or confirmation  19 of the Reductions, Cut-offs and additions in respect  20 of Indian Reserves proposed in the said report of the  21 Royal Commission, as set out in the annexed schedules,  22 be approved and confirmed as constituting full and  23 final and adjustment and settlement of all differences  24 with respect thereto between the Governments of the  25 Dominion and the Province, in fulfilment of the said  26 Agreement of the 24th day of September, 1912, and also  27 of Section 13 of the Terms of Union, except in respect  28 to the provision for lands for Indians resident in  29 that portion of British Columbia covered by Treaty No.  30 8, which forms the subject of interim report No. 91 of  31 the Royal Commission:  The settlement of a which will  32 be allowed to remain in abeyance until some more  33 suitable time, but which shall not prevent the  34 Government of the province from dealing with vacant  35 Crown lands under the provisions of the land laws of  36 the Province from time to time in force and effect."  37 Now, my lord, if Canada was wrong in releasing  38 British Columbia without concluding the treaty it  39 sought to negotiate in 1922 and 1923, the consequences  40 will not affect, in my submission, the Province.  41 remedy of the Plaintiffs and all others in a like  42 position will be against Canada alone - as was the  43 case in Guerin vs. The Queen.  Guerin, is not, of  44 course, about aboriginal title but illustrates an  45 applicable principle.  46 The defence pleaded by the Province, if successful,  47 will mean that when the plaintiffs issued their Writ 15E  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18 THE  19 MR.  20  21 THE  22 MR.  23  24  25  2 6 THE  27  2 8 MR.  29  30  31  32  33  34  35  36  37 THE  38  39  40  41 MR.  42  43  44  45  46  47  on October, 1984 they did so in the wrong court and  against the wrong defendant.  It is not up to the  plaintiffs to suggest in their opening how the  Province views its defence from selecting certain  paragraphs.  The defences must be taken as a whole and  by omitting reference to the defence which I have just  referred, it distorts the historical, and  constitutional background which is of such great  importance in this particular case.  I am not going to make any further reference to the  Province's case.  My purpose was to ensure that the  references made to the Province's case will be  understood in the legal background.  As to the factual  background referred to my my friends, we will meet  that in due course.  Of course there will be an issue, the Royal  Proclamation, there is no question about that.  COURT:  No question there is an issue?  GOLDIE:  No question but that there will be an issue on  that.  COURT:  I was afraid that that's what you meant.  GOLDIE:  As I say, the factual aspects will be dealt with  and I don't intend to go into them here.  I will deal  with that in the opening of the Province's case in the  fullness of time.  COURT:  Thank you, Mr. Goldie.  Mr. Macaulay, do you want to  say anything at this time?  MACAULAY:  I have told your lordship yesterday that the  Attorney-General of Canada intends to open at the  usual time.  That's the opening of Canada's case.  At  which time we will deal with, amongst other things,  the historical matters referred to by my learned  friend, Mr. Goldie, and your lordship may not be  surprised to hear then that we take, may take a  different view of history in some respects.  But I don't intend to open now.  COURT:  Thank you.  Mr. Rush or Mr. Grant, a little bit  unusual, but is there any response you wish to make,  limited, of course, to what Mr. Goldie last said  today?  RUSH:  My lord, I don't propose any response.  I would just  point out that we, of course, have a considerably  different view of the cases and authorities.  I am  sure that wouldn't come as a surprise to you.  The fact that Mr. Goldie points out that this, the  major aspect of his opening reply was in respect of  what he said was an  apparent omission in our opening. 159  1 I suppose it can be said that from the pleadings it  2 wasn't as apparent as he now makes it.  What the  3 significance of this defence seems to be to the  4 defendant, and of course we are grateful to him for  5 pointing that out to us.  6 THE COURT:  All right.  Thank you.  Do you want to proceed with  7 your case, Mr. Rush?  8 MR. RUSH:  Yes, my lord.  Thank you.  9 MR. GRANT:  Yes, my lord, I will be calling the first witness.  10 Prior to calling the first witness I wish to advise  11 the court that the questions and answers that this  12 witness will be giving will be in the largest part in  13 English.  However, I do wish to have an interpreter  14 sworn in because this witness -- two interpreters  15 sworn in, in fact, because this witness will be  16 referring Gitksan words and I want a reporter -- an  17 interpreter for the purposes of the reporter, which  18 has been the practice during the Commission Evidence,  19 someone to assist in the spellings of those words as  20 they go along and, secondly, I want, there is  21 pronunciation of certain words, in the questioning  22 there will be certain words I will be endeavouring to  23 pronounce and it may be required to have the  24 interpreter pronounce those words properly for the  25 witness as well as to translate some of the concepts  26 that the witness may refer to in the Gitksan language.  27 And I raise this right now because I wish to tender  28 Mrs. Sadie Howard as the interpreter to be with the  29 witness, Mrs. McKenzie, and I wish to tender Ms. Fern  30 Stevens to assist the reporter to be sworn in.  I am  31 not certain, my friend made some allusions to matters  32 to do with our interpreters.  33 THE COURT:  We are really talking about translators.  34 MR. GOLDIE:  It's on that basis, unless there is an actual  35 interpretation, then I am not, we are not concerned  36 with that aspect of it.  37 THE COURT:  All right.  Those two ladies can come forward then  38 and be sworn.  39  40 SADIE HOWARD, Translator, Sworn.  41 THE REGISTRAR:  Will you state your full name, please?  42 THE TRANSLATOR:  Sadie Howard.  43  44 FERN STEPHENS, Translator, Sworn.  45 THE REGISTRAR:  Will you state your full name, please?  46 THE TRANSLATOR:  Fern Stevens.  47 160  1  THE  COURT  2  3  MR.  GRANT  4  5  6  7  8  9  0  1  2  THE  COURT  :  Where do you want these ladies to position  themselves?  :  Preferable if Mrs. Howard could be with the witness,  right beside the witness, and I don't know what are  the facilities within the box or outside.  But she  could possibly stand beside the witness and it's more  to assist the reporter it may be that the Ms. Stevens  could sit beside the reporter.  I would like to arrange for a chair to be available  for Ms. Howard because Mrs. McKenzie is going to be an  extensive witness.  :  There is a seat -- I assume it is a moveable dock.  13 THE REGISTRAR:  Yes, it was put there for the purposes of  14 interpreters.  15 MR. GRANT:  I wish to call Chief Gyoluugyat, Mrs. Mary McKenzie.  16  17 MARY McKENZIE, a witness called  18 on behalf of the plaintiffs,  19 after first being duly sworn,  20 testified as follows:  21  22 THE REGISTRAR:  State your full name for the court?  23 THE WITNESS:     Mary McKenzie.  24  25 EXAMINED IN CHIEF BY MR. GRANT:  26  2 7 MR. GRANT:  28 Q   Before I proceed, my lord, I wish to advice the court  29 and I had advised earlier that we would be providing  30 the geneologies, and I have put together for  31 convenience of counsel, a document book and there were  32 some final corrections in it and it will be over  33 imminently.  I will provide it to counsel.  It's not  34 very extensive but it does provide the geneology of  35 Mrs. McKenzie.  36 Q   Could you tell the court your Chief's name, please?  37 A  My Chief's name is Gyoluugyat.  38 Q   What does that name mean?  39 A   It means to stand in one accord.  40 THE COURT:  I am sorry, Mr. Grant, I am confused alreadly.  She  41 says "my Chief's name", does that mean her name or his  42 chiefly name or is somebody else being her Chief's  43 name?  I am not sure what she means.  44 MR. GRANT:  It may have been my questioning, my lord, and I will  45 try to be careful.  4 6       Q   Do you hold the name Gyoluugyat?  47       A   Yes, I do. 161  1  Q  2  A  3  Q  4  A  5  Q  6  A  7  Q  8  A  9  Q  10  A  11  12  Q  13  14  A  15  Q  16  A  17  Q  18  A  19  Q  20  21  A  22  Q  23  24  A  25  MR.  GRANT  26  27  28  29  THE  COURT  30  31  32  33  34  35  36  MR.  GRANT  37  38  MR.  GOLDI  39  40  41  42  THE  COURT  43  MR.  GRANT  44  Q  45  A  46  Q  47  A  Is there a word in Gitksan for chief?  In Gitksan chief is Simoogit.  Are there -- do you belong to a House?  Yes, I do belong to a House.  Does every Gitksan person belong to a House?  Every Gitksan person belongs to a House.  Are you the only chief in your House?  No.  Is there different ranks of chiefs in your House?  Yes, in each House there are different ranks of  chiefs.  Is there a word for the rank of chief which you are in  your House, in Gitksan?  Yes.  In Gitksan my rank is Xsgoogam.  What does that mean?  It means that I am the head chief of a House.  Are you one of the plaintiffs in this court action?  Yes, I am.  And do you represent persons other than yourself in  this court action?  Yes, I do.  How do you determine who you represent in the court  action?  I determine that I represent Madiik, Gwamoon, Hlo'oxs.  :  My lord, I trust that given a daily transcript, I  can spell some of these for the court or else if you  prefer it will be just dealt with through the  transcript of these names.  :  Well, I am in your hands, Mr. Grant.  I am not sure  how I am going to proceed.  I am writing these words  down as close as I can phonetically and I will  transfer them when I see a transcript.  But it would  be presumptuous of me to suggest how the matter should  proceed at this stage.  You do what you think will  best advance your cause.  :  I will spell these names because it may be helpful  to all counsel and to the court.  3:  I was going so suggest that, my lord.  Most counsel  are familiar with these names now and if my friend  wishes to lead on this kind of thing and to spell the  names, I think it's in everybody's interest.  :  All right.  Thank you.  :  Madiik, M-a-d-i-i-k?  That's correct?  Yes.  Kwamoon is K-w-a-m-o-o-n?  Yes. 162  1  Q  2  3  A  4  Q  5  6  7  A  8  Q  9  10  A  11  Q  12  A  13  Q  14  A  15  Q  16  A  17  Q  18  A  19  20  Q  21  22  A  23  Q  24  A  25  Q  26  A  27  Q  28  29  30  31  A  32  THE  COURT  33  MR.  GRANT  34  Q  35  36  A  37  THE  COURT  38  MR.  GRANT  39  THE  COURT  40  MR.  GRANT  41  Q  42  43  A  44  45  Q  46  A  47  And Hlo'oks is H-l-o apostrophe o-k-s; is that  correct?  That's correct.  Now would the other chiefs in your House refer to you  as the Xsgoogam or would they have a different name  for you?  No, Xsgoogam is the proper.  Are you the plaintiff referred to in paragraph 14 of  the statement of claim as amended?  Yes.  Do you belong to a clan of the Gitksan?  Yes, I belong to a clan of the Lax Gibuu.  L-a-x, one word, G-i-b-u-u is the second word?  Yes.  Does every Gitksan belong to a clan?  Yes.  In fact we have three.  Can you tell the court what the other clans are?  They are Lax Gibuu, the wolf, the fire weed, Giskaast,  that's the fire weed, and the frog is Laxsee'l.  Is the Lax Gibuu clan, is there a translation for  that, what that crest is?  It's the wolf.  Giskaast, that's G-i-s-k-a-a-s-t; is that correct?  Yes.  And Ganeda, G-a-n-e-d-a?  Yes.  And I will ask for the interpreter with Mrs. McKenzie  can correct if I am wrong, and the Lax See'l, L-a-x  one word, S-e-e apostrophe 1, the second word; is that  correct?  Yes.  I haven't got a note of what that is.  That's what I was just going to clarify.  Does the Ganeda and the Lax See'l refer to the frog  clan?  Yes.  What is the spelling again, please?  L-a-x and S-e-e-1 is the second word.  Thank you.  You have referred to the three other chiefs in your  House, who holds the name Kwamoon in your House?  The person that holds the name of Kwamoon is Pearl  Trombley.  She is my daughter.  Who holds the name Madiik in your House?  The person who holds the name Madiik is my son, Ben  McKenzie junior. 163  1  Q  2  3  4  5  6  7  A  8  Q  9  A  10  Q  11  A  12  Q  13  A  14  15  Q  16  A  17  Q  18  19  A  20  Q  21  A  22  Q  23  24  A  25  Q  26  A  27  Q  28  A  29  Q  30  A  31  Q  32  A  33  Q  34  A  35  Q  36  37  A  38  Q  39  40  A  41  Q  42  43  44  A  45  Q  46  47  A  Just to clear up a question that the court may have,  paragraph 38 of the statement of claim refers to  Madiik and that was referred to as George Naziel.  Is  that the same person, is that the same, the name  that's held by your son or is that from a different  House or Nation?  It's the one held by a person of the Wet'suwet'en.  And, is George Naziel a Wet'suwet'en?  Yes.  So he was not in your House?  No.  Who holds the name Hlo'oxs in your House?  The person that holds that Hlo'oxs name is Fedelia  O'Brien, my second daughter.  When did you receive the name Gyoluugyat?  I received the name in 1959.  Can you tell me at what kind of a event you received  it?  Yes, it was done by putting on a Feasting.  What kind of a Feast?  It was a pole-raising Feast.  Before you received that name Gyoluugyat, did you hold  any other chiefly name?  Yes, I did.  And what was that?  I held the name of Gwamoon.  The same name now held by Mrs. Trombley?  Yes.  Before you held the name Gwamoon, who held that name?  Peter Robinson.  And when did he die?  He died in 1935.  When did you receive the name Gwamoon?  1942.  Did anyone hold the name Gwamoon between 1935 and  1942?  No.  Was anyone responsible for caring for that name at  that time?  Not at that time.  Is there a name for the other chiefs in your House,  that is, for chiefs other than the Xsgoogam in any  House in Gitksan?  By answering that, I have to say that I have Ganeda.  I will return to that in a few moments.  What was your mother's name?  My mother, Gitksan name? 164  1  Q  2  A  3  4  Q  5  A  6  Q  7  A  8  Q  9  A  10  Q  11  A  12  Q  13  A  14  Q  15  A  16  17  Q  18  19  20  A  21  Q  22 THE  COURT  23  2 4 MR.  GRANT  25  26  27  2 8 THE  COURT  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  Both her Gitksan name and English name?  Her English name is Ester Holland and her Chief name  is Madiik.  And is your mother alive now?  No.  When did she die?  1963.  Who took the full name Madiik after your mother died?  My son, Ben McKenzie.  Do you know when your mother received the name Madiik?  Yes.  It was when Mark Madiik died in 1917.  Was Mark Madiik related to your mother?  Yes.  How?  They were, in English it's cousins.  They were  cousins.  You say in English they were cousins, among the  Gitksan, would the relationship be described  differently?  Yes, it would be described as my wil'na t'ahl.  Wil'na t'ahl, my lord.  :  Mr. Grant, you pick a convenient time for the  morning adjournment, if you will.  :  Yes, this may be an appropriate time because the  document books have come to me, and before putting  some of the documents to her I would like to review  them.  :  All right.  We will take the morning adjournment  now.  (PROCEEDINGS ADJOURNED FOR SHORT RECESS)  I hereby certify the foregoing to be  a true and accurate transcript of the  proceedings herein to the best of my  skill and ability.  Wilf Roy  Official Reporter 165  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  (PROCEEDINGS RESUMED AT 11:30)  THE REGISTRAR:  Order in court.  THE COURT:  Mr. Grant.  MR. GRANT:  Yes, my Lord.  I do wish to tender the document  book, but I have just had an opportunity review it  over the break and my friends have not had an  opportunity to review it, as I have just delivered it  to them, so I will proceed and at the appropriate time  if they have any concerns about it they can raise it  at that time.  MR. GOLDIE: Well, I can ask my friend right now, I turn to tab  2.  MR. GRANT:  Yes.  MR. GOLDIE: And I find that document number 89 updated, April  8th, 1987. Unless my friend can correct me, I don't  believe that's been produced so far.  This document number 2 is a geneology.  It's one of  the series of geneologies that will be tendered, or  were to be — would be tendered with the geneologist's  report, but as it relates directly to Gyoluugyat's  house we are tendering it now, and as I've indicated,  I'm hoping to have more of these produced by the end  of this week, not only with respect to the witnesses,  but generally.  Well, is it a document that in the normal course of  events would have been produced for inspection, or is  it a document that would be part of counsel's brief.  It was prepared by — was prepared — has been  prepared by the geneologist, the expert, as part of  the counsel's brief, but it's a document that a sample  geneology was tendered with a sample of the  geneologist's report, and since then we've been  endeavouring to complete all the rest of them so they  would be complete so we would be able to produce the  rest of them.  THE COURT:  Okay.  MR. GRANT:  And because there was a concern raised on Monday, I  will endeavour, I will — I may advise the court and  my friends, this witness can go through it.  I did not  intend to have this witness go through the geneology  in detail, I intended that the next witness would  review her geneology in detail, because we, in an  effort to in a way compartmentalize some of the  evidence, that is then the court can see how the  geneologies are done, and of course it's available for  cross-examination.  THE COURT  MR. GRANT 166  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  THE COURT:  Yes.  Well, I'm not sure that I even have a grasp.  have a grasp or understanding of the  I'm sure I do not  moment  i  I've  MR. GRANT  THE COURT  problem between you gentlemen at the  jment and I have  it a document that you  I wish to put to the  MR.  MR.  MR.  THE  MR.  THE  MR.  THE  MR.  THE  MR.  THE  MR.  THE  MR.  THE  MR.  THE  MR.  GRANT:  GOLDIE:  GRANT  COURT  GRANT  never seen this document and I have — I've never had  to deal with the problem.  Is  want to put to the witness?  :  Yes, yes.  It is a document  witness.  But it's in the nature of  of facts that appear  a memoir  somewhere else,  or  is  a compilation  it?  It's —  No.  It's a geneological chart.  COURT  GRANT  COURT  Yes.  Of the ancestors and descendants of the members of  the House of Gyoluugyat.  Created for the purposes of this trial?  That's correct.  All right. Now, Mr. Goldie, what is the nature of  your, I'll call it an objection? Do you say this is  document you should have seen previously?  GOLDIE:  Yes.  It's dated April the 8th, 1987.  COURT:  Yes.  GOLDIE:  It is — we were given a so-called expert's report  which purports to be a geneological report. We have  asked for precisely this kind of thing.  COURT:  Yes.  GOLDIE:  And it is of obvious importance for us to study as  a matter of cross-examination of the witness, at least  so it appears at this time.  COURT:  Yes.  Well, what do you — are you suggesting, Mr.  Goldie, that your friend should not put this document  to the witness and not lead this evidence?  GOLDIE:  Well, as I say, I open tab 2, the document I got  about two minutes ago, and see something which should  have been delivered to us a month ago, and there  appear to be a number of other diagrams.  Which of  them, if any, are created by somebody other than the  witness?  I don't know.  Which of them are — well,  I'm not sure whether these  some of these have been disclosed,  some, but the —  here's some photographs.  have been —  COURT:  Um-hum.  GOLDIE:  We recognize  COURT:  Well —  GOLDIE:  I certainly don't want to impede the conduct of the  trial, and my suggestion at this point is that my  friend continue, but I have to advise your Lordship 167  MARY MCKENZIE - for Plaintiffs  in chief by Mr. Grant  1 that if we feel in any way embarrassed or impeded in  2 our preparation for reasonable, expeditious  3 cross-examination, then we'll simply have to deal with  4 these documents in some other fashion.  5 THE COURT:  Yes, all right.  I think that —  6 MR. MACAULAY:  There was another document that my friend, Mr.  7 Grant has told us will be available shortly.  That's a  8 map of the House territory.  And we've had a number of  9 those maps delivered as appendices to answers to  10 interrogatories.  I take it this is a blowup, in  11 effect, of the map that was shown yesterday showing  12 all the House territories throughout the claim area.  13 One of the features of those maps is that there are  14 no — none of the aboriginal fishing stations that the  15 various plaintiffs say, I suppose everyone of these  16 Houses say they have, is endorsed on those maps, and  17 these particularly relevant answers delivered a couple  18 of days ago to our interrogatories referred to the  19 fact that these territories will — these fishing  20 stations will be identified shortly, and so we're  21 getting these various documents and maps piece-meal,  22 which makes it difficult to prepare for  23 cross-examination of this and other witnesses.  24 THE COURT:  Well, it seems to me the only way I can deal with  25 that kind of an objection, Mr. Macaulay is —  26 MR. MACAULAY:  This isn't an objection, I'm just stating.  27 THE COURT:  Or to that kind of a comment then is to say that if  28 you feel that you're not able to cross-examine by  29 reason of any of these alleged deficiencies in the  30 production you've received, then it may be that I  31 would have to adjourn the cross-examination if such is  32 your wish, but I'll have to deal with that sort of a  33 problem, which is almost the same thing Mr. Goldie has  34 suggested, I'll have to deal with that as it-arises. I  35 think Mr. Grant should proceed with his evidence and  36 we'll see how we get along.  37 MR. MACAULAY:  Okay.  38 THE COURT:  Thank you.  39 MR. GRANT:  Thank you, my Lord.  My Lord, it may be appropriate  40 at this stage then to put in the document book as an  41 exhibit for identification at this time, and if my  42 friends then have concerns about any part of it, they  43 may wish to raise that at a later stage.  44 MR. GOLDIE:  Well, we have expressed our concerns.  Why not just  45 go on with the witness and leave — if you have to  46 refer to an individual document we'll deal with it as  47 you lead your witness. 168  MARY MCKENZIE - for Plaintiffs  in chief by Mr. Grant  1  THE  COURT:  2  3  MR.  GRANT:  4  5  6  7  THE  COURT:  8  MR.  GRANT:  9  Q  10  11  12  13  A  14  THE  COURT:  15  A  16  THE  COURT:  17  MR.  GRANT:  18  Q  19  A  20  21  Q  22  23  A  24  Q  25  i  26  A  27  28  Q  29  A  30  Q  31  A  32  Q  l  33  A  ;  34  Q  '  35  i  36  A   1  37  Q  38  39  A  40  1  41  ]  42  43  Q  44  1  45  46  1  47  Do you — does the witness need the document in  front of her at the moment?  I'm trying to, rather than interrupt, I'm trying to  put it in now, because I believe she may need it, but  I will proceed and she will need it shortly.  I'm  moving into that area.  All right, thank you.  Mrs. McKenzie, I would like to refer back to previous  holders of names of your name, and you may have  already described this, but could you tell me who held  Gyoluugyat before you did?  Joseph Danes.  Joseph Davies?  Joseph Danes, D-a-n-e-s.  Thank you.  And who held the name Gyoluugyat before Joseph Danes?  The person that hold the name before Joseph Danes was  Nicodemus Gyoluugyat.  Okay.  So Nicodemus' last name actually was the name  Gyoluugyat?  Yes.  Took it as his surname.  Do you know when Joseph Danes took the name  Gyoluugyat?  To my knowledge it was when Nicodemus died that Joe  Danes took the name.  And do you know when Nicodemus Gyoluugyat died?  No.  Do you remember Nicodemus Gyoluugyat in your lifetime?  No.  When did Joseph Danes die?  He died in December of 1934.  Okay.  And when did — I'm sorry — do you know how  old Joseph Danes was when he died?  No, I don't.  Do you remember Nicodemus Gyoluugyat's family or  his — I mean his wife and his children?  I have only seen his wife probably a couple of times,  but I know his children.  I can't remember their  names, but I remember they were living in Gyoluugyat's  long-house in the village of Kispiox.  I would like to refer to document 7 in the document  book and put that document to the witness.  It is a  photograph.  Saying this before, tendering it, and I  believe it has been produced on our list of documents.  In fact, my Lord, it's loose.  We'll put it back in 169  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  the book.  Do you recognize this picture?  A  Yes, I do.  Q  What is it a picture of?  A  Pictures of two long-houses in the picture and a totem  pole.  MR. GRANT:  Okay.  I would like you to — I would like to mark  this as Exhibit number 1.  THE COURT:  All right.  There will be no objection?  MR.  MR.  THE  MR.  THE  MR.  THE  MR.  GRANT:  Q  A  GRANT  COURT  GRANT  COURT  GRANT  COURT:  GRANT:  Q  A  Q  A  Q  Q  A  Q  A  Q  A  Q  EXHIBIT 1 - Photograph.  Now, I would like you — you said there were two  long-houses in this picture.  Do you know where these  houses were located, in what community?  They're in the village of Kispiox, and I know the one  house here in this picture is the long-house of  Gyoluugyat.  Okay.  Now, I want you to show, point it to the court,  and then I'll put it on the record.  Just point which  one?  This one here.  So —  Thank you.  For the record it is —  In the background.  It is the fourth house from the right-hand side of  the picture.  Thank you.  see that house?  referred to as Nicodemus  Is this when  you were an  old.  No one  And did you  Yes, I did.  Is that the house you  Gyoluugyat's house?  Yes.  When did you see the house?  adult or a child?  As a child, probably seven or eight years  was living in it then when I was that age.  Okay.  And it was torn down by the late Joseph Danes.  Okay.  And was it torn down while you were a child?  No.  It was in the 1930's when it was taken down.  Okay.  And what is your birth date?  I'm sorry.  Are you asking a woman her age?  It may assist to give us a sense of when these events  occurred, that's the only reason I want to ask you? 170  MARY MCKENZIE - for Plaintiffs  in chief by Mr. Grant  1 A I was born January 27th, 1919.  2 Q I believe you gave us your mother's Indian name was  3 Madiik.  What was her English name?  4 A Esther Holland.  5 Q And do you know when your mother was born?  6 A No, I don't.  7 Q You indicated she died in 1963?  8 A Yes.  I'm pretty sure of that.  9 Q And was Esther Holland in Gyoluugyat's House?  10 A Yes.  11 Q Who was Esther — your mother's mother?  12 A Pardon me?  No.  She had her own house, Madiik had her  13 own House.  14 Q Okay.  Is Madiik now in Gyoluugyat's House?  15 A Madiik now is in Gyoluugyat's House.  16 Q And when did that happen, that change, Madiik being in  17 Gyoluugyat's House as opposed to being in her own  18 House?  19 A That's when Esther Holland died, in 1963.  20 Q Who was Esther Holland's mother?  21 A Esther Holland's mother was Sarah Green, her married  22 name.  Her maiden name was Sarah Wesley.  23 THE COURT:  Wesley?  24 A Wesley.  25 MR. GRANT:  26 Q W-e-s-1-e-y?  27 A Yes.  28 Q Did she hold a Gitksan name, that is Sarah Green?  29 A Yes.  30 Q What was that name?  31 A I've got so many names in my head that I —  32 THE COURT:  Is it a matter in which counsel might lead?  33 MR. GOLDIE:  I have no objection.  34 MR. GRANT:  35 Q Her name — I have to pronounce it though, my Lord —  36 was — her name is Siighlgoxws, and I will spell it so  37 the interpreter may pronounce it properly,  38 S-i-i-g-h-1-g-o-x-w-s.  Maybe Mrs. Howard, you may  39 pronounce it?  40 A Yes.  I believe Mrs. Howard can pronounce that name,  41 please? Siighlgoxws.  42 Q is that name, was that her name?  43 A Yes.  That is her name.  44 Q And what House was Sarah Green in?  45 A Gyoluugyat.  46 Q Do you remember her in your lifetime?  47 A Yes. 171  MARY MCKENZIE - for Plaintiffs  in chief by Mr. Grant  1 Q Do you know when she was born?  2 A I don't know when she was born.  3 Q Do you know when she died?  4 A Yes, I do.  I remember when she died.  She died in  5 1942.  6 Q Do you know the name of her — that is Sarah Wesley's  7 mother?  8 A No, I don't.  9 Q Okay.  Do you know who Sarah Wesley's mother was  10 married to?  11 A Yes.  12 Q Who was that?  13 A She was married to Noola.  14 Q N-o-o-l-a.  And what House was Noola from?  15 A Noola was from the House of Luutkudziiwus.  16 MR. GRANT:  Okay.  Is there a —  17 MR. GOLDIE:  Excuse me.  Could that be spelled, please?  18 MR. GRANT:  19 Q L-u-u-t-k-u-d-z-i-i-w-u-s; is that correct?  20 A Yes.  21 MR. GOLDIE:  Thank you.  22 MR. GRANT:  23 Q Is there a present holder of the name Luutkudziiwus?  24 A Yes.  25 Q Who is that?  26 A My husband, Ben McKenzie.  27 Q Okay.  Sorry, Mrs. McKenzie, but sometimes I haven't  28 made a note of what you said, so I may repeat a  29 question.  30 A That's fine.  31 Q Could you just tell me again who — which House Sarah  32 Wesley's mother was in?  33 A Gyoluugyat.  34 q Okay.  Was your mother, Esther Holland, always in  35 Madiik's House?  36 A Yes.  37 q Okay.  Did your grandmother, Sarah Wesley, have any  38 brothers or sisters?  39 A She has one brother.  40 Q What was his name?  41 A Mathias Wesley.  42 q Did he hold any Simoogit or Chief's names?  43 A Yes.  44 Q What names did he hold?  45 A He hold Dibe.  46 Q Um-hum?  47 A And Hlo'oxs. 172  MARY MCKENZIE - for Plaintiffs  in chief by Mr. Grant  1  Q  2  A  3  THE COURT  4  A  5  MR. GRANT  6  Q  7  A  8  Q  9  10  A  11  Q  12  A  13  Q  14  A  15  Q  16  A  17  Q  18  A  19  Q  20  21  22  23  A  24  25  Q  26  A  27  Q  28  A  29  Q  30  31  A  32  Q  33  A  34  35  Q  36  A  37  Q  38  A  39  Q  40  41  A  42  Q  43  44  45  A  46  Q  47  What House was he in?  Gyoluugyat's House.  :  I'm sorry?  Gyoluugyat's House.  And do you know when Mathias died?  Yes.  He died in 1932.  Do you know, was your father's mother alive during  your lifetime?  No, I don't.  I didn't remember then.  Okay.  What was your father's name?  William Holland.  Did he have a Chief's name?  Yes.  What was that?  Haaluus.  Okay.  And he was from Kitwangak.  When you referred to your grandmother in your evidence  today and in this trial, is that whenever you refer to  your grandmother, are you referring to your mother's  mother, as far as someone you spoke to?  Yes.  That would be the only one that — my  grandmother.  Do you know if your great grandmother had any sisters?  Yes.  How many sisters did she have?  There was six.  Okay.  And do you know whether any of those six  sisters had any children?  Yes.  How many would they have?  I don't know how many each one  six women, they had all boys.  Okay.  Did those boys hold any  Yes.  Okay.  What names did they hold?  They had Madiik, Gwamoon, Hlo'oxs, Dibe.  Um-hum.  Was Nicodemus Gyoluugyat related to any of  those?  Yes.  He was one of them.  Okay.  Were the holders of those names, any of the  holders of those names amongst those boys brothers, or  were they all cousins?  They were cousins.  Could you tell the court the significance of the fact  that these three — these six sisters only had boys in  have, but between the  Chief's names? 173  MARY MCKENZIE - for Plaintiffs  in chief by Mr. Grant  1 the Gitksan system? What was the effect of that in  2 terms of Gyoluugyat's House and Madiik's, and  3 Gwamoon's, and Hlo'oxs?  4 A  The effect of that in the family was there were no  5 female, and it's in our Houses that through the  6 females the family increases, and with the six men,  7 although they were married and had children, but their  8 children weren't in the Gyoluugyat's House at all.  9 Q  Okay.  Did this have anything to do with your mother  10 taking the name Madiik?  11 A  Yes.  To my knowledge it did.  12 Q  Okay.  Can you explain that?  13 A  Because she was the only one that had children.  14 Q  Um-hum?  15 A  And with her only having three, I was her first child,  16 and of course I was a female.  17 Q  Um-hum?  18 A  And I had two brothers.  19 Q  When you —  20 A  And this brought the lightening to the minds of the  21 other Chiefs, that the family would populate from my  22 mother and myself.  23 Q  Okay.  Now, I believe you already indicated that the  24 former holder of Gwamoon before yourself was Peter  25 Robinson?  26 A  Yes.  27 Q  Do you know who held the name Gwamoon before Peter  28 Robinson, and can you explain it in the relationship  29 of these seven sisters and the boys they had?  30 A  Well, with Peter Robinson, he would be the cousin to  31 all these six men, they were all cousins.  As I  32 mentioned there, that one of those —  33 THE COURT:  I'm sorry, I don't have any reference to these six  34 men.  Have I missed something?  35 MR. GRANT:  36 Q  Oh, okay.  I referred you to the — your great  37 grandmother had six sisters?  38 A  Yes.  39 Q  Right?  Now, and they had children?  40 A   Yes.  41 Q  But all of their children were boys?  42 A  Yes.  43 Q  And you're not sure how many children each had, but  44 they were all boys?  45 A  No, I didn't.  But the six women did.  46 Q  Now, maybe that's where the confusion was?  47 A  Yes. 174  MARY MCKENZIE - for Plaintiffs  in chief by Mr. Grant  1  Q  2  3  A  4  Q  5  A  6  Q  7  A  8  Q  9  A  10  Q  11  A  12  Q  13  A  14  Q  15  16  A  17  Q  18  19  A  20  Q  21  A  22  Q  23  A  24  Q  25  A  26  Q  27  A  28  Q  29  A  30  Q  31  A  32  Q  33  A  34  Q  35  A  36  Q  37  38  A  39  Q  40  A  41  Q  42  A  43  Q  44  A  45  Q  46  A  47  Q  So Peter Robinson was a cousin to the boys of these  women?  Yes.  Or to the women?  To the boys.  Okay.  So he was one children of one of the sisters?  Yes.  Okay. Was he related to your grandmother then, Sarah?  Yes.  And how?  To put it straight, they were cousins, first cousins.  Did your grandmother, Sarah, have any sisters?  No, she didn't.  Okay. You already indicated she had a brother,  Mathias?  Yes.  Okay.  Did she have any other children besides your  mother, Esther?  Yes.  And who were they?  Had one son.  What was his name?  Walter Green.  Um-hum.  And they had Agnes, Agnes Green.  Um-hum?  And Martha Green and Matilda.  Did Agnes Green hold a name?  Yes, she did.  What was that name?  Haakx.  H-a-a-k-x.  Did Martha or Matilda have any children?  No.  One died at an early age, in their teens.  Okay.  What about Agnes?  Agnes died in 1932, and she didn't have no children.  Okay.  I believe you indicated that you had two  brothers?  Yes.  And could you give their names?  The oldest one is William Holland.  Yes?  And the youngest is George Holland.  Okay.  Are they both alive?  No.  William died in 1924.  Okay.  As a child?  As a child.  And George? 175  MARY MCKENZIE - for Plaintiffs  in chief by Mr. Grant  1  A  2  Q  3  A  4  Q  5  A  6  Q  7  A  8  9  Q  10  11  12  13  A  14  Q  15  A  16  17  18  19  THE  COURT  20  A  21  MR.  GRANT  22  THE  COURT  23  A  24  MR.  GRANT  25  THE  COURT  26  MR.  GRANT  27  Q  28  29  A  30  Q  31  A  32  Q  33  34  A  35  Q  36  A  37  Q  38  A  39  Q  40  A  41  Q  42  A  43  Q  44  45  A  46  Q  47  A  a name?  George is still living.  Okay.  And does he hold  Yes.  What name is that?  He holds the name of Dibe.  Dibe, D-i-b-e, and what does  that name mean?  It means the ram, sometimes it's called a mountain  goat.  Do you have — you've indicated that you have children  that hold these names, but maybe we can just for the  record explain who your children are.  You can just go  through the names of your children?  The oldest of my children is Pearl Tremblay.  She is the holder of Gwamoon?  She is the holder of Gwamoon today.  The next one is  Ben McKenzie Junior.  He holds the name of Madiik  today.  The third one is Fedelia O'Brien, she holds  the name today of Hlo'oxs.  :  I'm sorry?  Hlo'oxs  H-1-o-o-x-s.  What's her her first name?  Fedelia O'Brien.  F-e-d-e-1-i-a.  Thank you.  Okay.  You referred to Pearl, Ben, Fedelia.  Wilma  McKelvie?  Yes.  And are — what House are those children in?  Today they're in the House of Gyoluugyat.  Okay.  Do they — does your daughter, Pearl, have any  children?  Yes, she has.  And are they sons or daughters or both?  She has three boys.  Does your daughter, Wilma, have any children?  Yes.  And what — are they sons or daughters or both?  She has two sons and four daughters.  Does your daughter, Fedelia, have any children?  Yes.  She has two boys and three girls.  Do any — and what House are the children of your  three daughters in?  They're in the House of Gyoluugyat today.  Does your son, Ben McKenzie, have any children?  Yes, he has. 176  MARY MCKENZIE - for Plaintiffs  in chief by Mr. Grant  1 Q What are they, boys or girls?  2 A Two boys and four girls.  3 Q And are they in the House of Gyoluugyat?  4 A No, they're not.  5 Q Are they in a House, a Gitksan House?  6 A Yes, they are.  7 Q Which House are they in?  8 A They're in Wii Gaax House.  9 MR. GRANT:  That's W-i-i, first word, second word, G-a-a-x.  Why  10 are they in Wii Gaax House and not Gyoluugyat.  11 THE COURT:  You're talking about the two boys and four girls of  12 Ben McKenzie's?  13 MR. GRANT:  14 Q Yes.  Your son's children?  15 A In Gitksan law our children go to the mother's side,  16 not the father, so four of my son's children are in a  17 different House.  18 Q And that is also why your daughter's children, of  19 course, are in your House?  20 A Yes.  21 Q Is this what we would call matrilineal, that is the  22 descent comes from the mother's side?  23 A Yes. That's the word, matrilineal.  24 Q Does your — do any of your daughters have children  25 who themselves have children?  In other words, do you  26 have any grandchildren through your daughters?  27 A Yes, I have.  28 Q Okay.  Does — let's — Pearl only has sons, so I'll  29 just refer to — I'll start with Wilma.  Does she —  30 do any of her daughters have children?  31 A Yes.  32 Q Which ones have children?  33 A Carla has two boys.  34 Q Yes?  35 A Alice has a son.  36 Q Um-hum?  37 A And that's all she has.  38 Q Okay. Are those grandchildren of yours in your House?  39 A Yes. My great grandchildren.  40 Q Your great grandchildren, yes?  41 A Yes.  42 Q Does Fedelia's daughters have any children?  43 A Yes.  44 Q And which of her daughters have —  45 A Dolores is the only one that has a daughter.  46 Q Okay.  Do you know Violet Brown?  47 A Yes, I do. 177  MARY MCKENZIE - for Plaintiffs  in chief by Mr. Grant  1 Q Does she hold a Gitksan name?  2 A Yes, she does.  3 Q And what name is that?  4 A Adilo'op.  Do you want the spelling of that?  5 Q Yes.  For the court, that's G-a-d-i-1-o-o.  I'll ask  6 you so I don't get it wrong.  Is it A-d-i-1-o-'-o-p?  7 A Yes.  8 Q Who was her mother?  9 A Her mother was Marriane Brown.  10 Q Did you know her mother?  11 A Yes, I did.  12 Q Is her mother alive now?  13 A No.  14 Q When did she die?  15 A I'm not too sure of the year, but I believe it's 1959.  16 I could clarify that later on too.  17 q Yes.  Was Marriane Brown in Gyoluugyat's House?  18 A Yes.  19 Q Is her daughter, Violet, in your House?  20 A Yes.  21 Q Does Violet have any children?  22 A She has.  23 Q Okay.  Are they in your House?  24 A Yes.  25 Q Does her — does she have any daughters who have any  26 children?  27 A Yes, she has.  28 Q Okay.  Are those children of her daughter's in your  29 House?  30 A Yes.  31 Q Can you explain to the court how Violet or Marriane is  32 related to your mother or your grandmother?  33 A To say how Marriane is related to, there's always the  34 sisters.  35 Q Yes?  36 A And then their cousins.  Those are the people that are  37 related.  38 Q You mean?  39 A And are in the House of Gyoluugyat.  40 Q You mean it goes back to the six sisters?  41 A Yes.  It goes right back to there.  42 Q I see.  So they're related through several generations  43 back?  44 A Yes.  45 Q Do you know what name, if any, was held by Marriane  46 Jack -- or Marriane Brown, I mean?  47 a Yes.  First, when to know her as a child her name was 178  MARY MCKENZIE - for Plaintiffs  in chief by Mr. Grant  1  2    MR. GRA  3  Q  4  5  6  7  8  9  A  10  Q  11  A  12  13  14  15  Q  16  A  17  Q  18  A  19  20  Q  21  22  A  23  Q  24  25  26  A  27  Q  28  29  A  30  31  Q  32  A  33  Q  34  35  36  37  38  A  39  Q  40  41  A  42  Q  43  A  44  45  Q  46  47  A  Tax Misaks  Miss Howard, if I'm  I will endeavour to spell it  incorrect you correct me, or maybe Miss Stevens, what  spelling do you have on it? T-a-m-i-i-s-a-x?  I'm  getting a negative response.  underline the X.  Thank you.  I  McKenzie.  That was her child's  No.  That's how you knew her?  Yes.  I knew her, and it's not a child's  T-a-m-i-i-s-a-x?  I  T-a-x-m-i-s-a-k-s,  'm sorry, Miss  name?  a — she's part of the wing  There are several Chiefs in  name,  part  each  it's ~  of  side  of  I'll call it  Gyoluugyat.  Gyoluugyat.  Yes?  And there's several on her right.  Right?  Of the Chiefs, and she holds one of these names, the  sub-Chief, you may call it.  Okay.  So we may call it a sub-Chief, but she was one  of the wings of Gyoluugyat in Gyoluugyat's House?  Yes.  And when you say that these people are on your right  or on your left, are you referring to how they would  be seated with you in the Feast Hall?  Yes, that's correct.  Okay.  And I'll come back to that, my  Marriane Brown hold any other name?  Yes.  I'm not sure, but I'll clarify that  but she held a name of Suuygos.  Suuygos?  Suuygos, S-u-u-y-g-o-s.  Now, I would like to refer you now to tab 2 of the  document book.  Now, I would like to ask you if you  have seen that before, and it's two pages — I'm  sorry, it's three pages long, and tell me if you've  seen that document before?  Yes.  Okay.  You can refer to the other two pages, just be  sure you've seen them all?  Yes, I have.  What does that document demonstrate or show?  It shows the Chiefs, the sub-Chiefs, the children, the  grandchildren, are all in Gyoluugyat's House.  Okay.  So this chart would be a chart of the geneology  of your House?  Yes.  Lord.  Did  after lunch, 179  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  THE COURT:  Well, is that what it is?  It's not what she  described it as.  MR. GRANT:  Yes, well —  THE COURT:  She said it shows the Chiefs to sub-Chiefs, the  children who were grandchildren of the House of  Gyoluugyat.  Yes.  I take it it would be as of April 7th.  MR.  THE  MR.  THE  MR.  THE  MR.  THE  MR.  THE  MR.  THE  MR.  THE  MR.  THE  MR.  GRANT  COURT  GRANT  Q  A  COURT  A  Q  A  Q  A  Yes.  As of April 8th, 1983.  That's the date on it.  It would be up to date today?  Yes.  That would be the roster of the present — well, I  don't know if the roster of the whole House or just a  roster of the sub-Chief's children and grandchildren.  GRANT:  Q  It does show all of the members of your House?  Yes.  Right from my great grandmother.  Um-hum?  Right down to my great grandchildren.  So it shows past and present members of your House?  Yes, yes.  COURT:  All right.  Well then, Mr. Grant, with respect, that  does sound like a geneology then.  GRANT:  Yes.  COURT:  But I'm not sure exactly what it was yet.  Is it the  geneology of the House of Gyoluugyat or is it the  geneology of the family of which the witness is a  member?  It's the geneology —  Maybe they're the same thing,  Pardon?  Maybe they're the same thing, _      .  It's the geneology of the House of Gyoluugyat.  Not just of her family?  No.  All right.  GRANT  COURT  GRANT  COURT  GRANT  COURT  GRANT  COURT  GRANT  Q  I don't  I don't  know,  know.  Now, the other question I wish to ask you, you had an  opportunity before coming into court to review this  document; is that right?  A  Yes.  Q  And is it correct from your — from your knowledge?  A  Yes.  It is correct.  Q  Okay.  Now, there are dates on that document, and  other than those dates, the dates that are listed on  the documents, there's B dates for, presumably, birth 180  MARY MCKENZIE - for Plaintiffs  in chief by Mr. Grant  1  2  3  4  5  MR.  6  7  MR.  8  MR.  9  10  11  12  13  THE  14  15  MR.  16  17  18  19  THE  20  21  22  MR.  23  THE  24  25  26  27  28  MR.  29  30  THE  31  32  MR.  33  34  THE  35  36  MR.  37  THE  38  39  MR.  40  THE  41  42  43  44  45  46  47  MR.  dates, and D dates, death dates.  Other than the dates  on the document, do you know the people who are on  this document, do you know who all of them are?  A  Yes, I do.  GRANT:  Okay.  I would ask that this be entered as the next  exhibit, my Lord.  GOLDIE:  Can she tell us who the author of the document is?  GRANT:  Well, yes.  She can or I can, my Lord.  It was  prepared for the assistance of counsel, and it was —  the author of the document is Mrs. Heather Harris, who  is one of the experts for whom a summary has already  been provided and who will be tendered in due course.  COURT:  All right.  Well, what are you tendering, Mr. Grant,  just the table 2, or tab 2 rather, or —  GRANT:  As it's bound I would like to enter the entire  document book for convenience, and then if there's any  questions as to the document, possibly we can list tab  2 as —  COURT:  All right.  Well, Mr. Goldie and Mr. Macaulay, is it  convenient to be marked Exhibit A for identification  for the time being?  GOLDIE:  Yes, that's all right.  COURT:  All right.  Exhibit A for identification.  Can I  suggest we just make it Exhibit 2 for identification,  and then if it becomes an exhibit we will have it in  the same numerical sequence.  That might be more  convenient.  GOLDIE:  Yes.  There's already a photograph which I believe  has been marked separately as Exhibit 1.  COURT:  Exhibit 1?  This book will become Exhibit 2.  We  can't accomodate all the —  GOLDIE:  No.  All I wish to preserve is that the document as  a whole is not yet proven.  COURT:  Yes, all right.  So it will be Exhibit 2 for  identification for now.  I'm sorry.  MACAULAY:  That is the whole book?  COURT:  The whole book, yes.  But as far as I'm concerned  tab 2 has now been proven.  GOLDIE:  Yes.  COURT:  The rest of the document will become an exhibit in  due course, or it won't, but at the end of the day we  will have to sort some of these things out, but I'm  satisfied that tab 2 has been proven.  EXHIBIT 2 FOR IDENTIFICATION - Blue binder  GRANT:  My Lord, I have 181  MARY MCKENZIE - for Plaintiffs  in chief by Mr. Grant  1 MR. GOLDIE:  While my friend is collecting his brief, I want to  2 make it clear, my Lord, that we are not waiving our  3 entitlement to see a document in accordance with the  4 rule which, unless otherwise ordered, may not be used  5 in examination unless it's been disclosed.  This is —  6 my friend keeps referring to this as part of his  7 counsel's brief.  He has identified it as something  8 prepared by an expert.  We ask for the geneological  9 tables which that expert's report refers to, and I  10 don't want it by any manner of means to be understood  11 that I am consenting to the production of these as  12 each witness is called to the stand.  That's something  13 we have done today in order to keep the trial going.  14 THE COURT:  Yes.  15 MR. GRANT:  My Lord, I think I've made my point clear.  I've  16 instructed the expert to have those completed as  17 quickly as possible and produced.  That is the — not  18 just one geneological chart but all of them, so they  19 will all be tendered.  20 MR. GOLDIE:  This one is dated April the 8th.  21 THE COURT:  All right, gentlemen.  Let's get onto something  22 else, because we have a problem here that we'll come  23 to in due course.  24 MR. GRANT:  We will have a lunch break if my friend wishes to.  25 MR. MACAULAY:  Did your Lordship wish to know that tab 2 has  26 been proven?  27 THE COURT:  I take it the witness has proven it viva voce.  28 MR. MACAULAY:  Up to a point.  She says she can't verify all the  29 information, particularly the dates of birth.  Quite  30 obviously she can't from the tenure of her evidence,  31 she can't tell some of these — who some of these  32 people are, with respect, so —  33 THE COURT:  That may be.  34 MR. MACAULAY:  But if the document is proven, then those facts  35 are proven, or there's prima facie proof of them.  36 THE COURT:  Well, I may have been too hasty in saying it's been  37 proven, because counsel are raising things that I  38 hadn't fully considered.  I just think that there's  39 not much purpose in pursuing this dialogue much  40 further, if at all.  I will reconsider whether it's  41 been proven or not, that is whether tab 2 has been  42 proven or not, and Exhibit 2 is in for identification,  43 and proof thereof can be supplemented as to tab 2 and  44 otherwise as counsel may be advised.  If they don't,  45 at the end of the trial we will have an argument about  46 what's been proven and what hasn't been proven.  47 MR. GRANT:  My Lord, may I — I know it's a little bit early, 182  MARY MCKENZIE - for Plaintiffs  in chief by Mr. Grant  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  THE  but I'm moving into another area that may be a little  bit lengthy.  This may be an appropriate time to  adjourn.  COURT:  All right, two o'clock.  REGISTRAR:  Order in court.  Court stands adjourned until  two o'clock.  (LUNCH BREAK TAKEN AT 12:25)  I hereby certify the foregoing  a true and accurate transcript  proceedings herein transcribed  best of my skill and ability  to be  of the  to the  Grfiham D. Parker  Official Reporter  United Reporting Services  Ltd. 183  1  2  THE  REGIS1  3  4  A  5  THE  COURT  6  MR.  GRANT  7  Q  8  9  10  11  A  12  Q  13  A  14  Q  15  A  16  Q  17  A  18  Q  19  20  21  THE  COURT  22  MR.  GRANT  23  Q  24  25  A  26  Q  27  A  28  Q  29  A  30  Q  31  32  33  34  A  35  THE  COURT  36  A  37  MR.  GRANT  38  Q  39  A  40  Q  41  42  43  44  45  46  47  (PROCEEDINGS RESUMED AT 2 O'CLOCK)  rRAR:  Witness, do you realize you are still under  oath?  Yes, I do.  :  Mr. Grant?  :  Yes, my lord.  I just wanted to, before proceeding to the next area,  to cover a couple of points.  You indicated that your  daughter, Wilma's daughter, Carla, had two children;  could you give me the names of two children?  The oldest one is Kenneth Craig,  Kenneth Craig?  Yes.  And the other one?  Joshua.  Do you recall when Joshua was born?  July 29, 1985.  Yes, I have taken the liberty of preparing another  copy, it appeared -- we were in court, for the court's  ease and --  :  Thank you.  You also indicated that a Alice Marshall, Wilma's  daughter, had a child; what's that child's name?  Matthew.  Matthew?  Yes.  When was he born?  He was born in 1985.  Could I have Exhibit 2 for a minute, please.  I would refer you to Exhibit 2, the first page, and  are they referred to on the exhibit, those two  children?  Here is Carla.  Yes.  No, they are not here on this one here.  :  Well, Carla Craig is here?  Yes, but the second son is not on here.  And Alice Marshall's is not on here?  No.  So that's a modification to that.  Now, my lord, you have heard evidence of the House  that this woman, Gyoluugyet's House, and I would like  to move into another area of evidence now and speak  about a question, Mrs. McKenzie, on the significance  or meaning of the House to the Gitksan.  Of course  there is introductory evidence to assist the court.  Now, what is the Gitksan word for House? 184  1  A  2  Q  3  A  4  Q  5  6  A  7  Q  8  9  10  A  11  12  Q  13  A  14  15  Q  16  17  18  A  19  Q  20  21  A  22  23  24  Q  25  26  A  27  Q  28  A  29  30  Q  31  A  32  Q  33  34  A  35  36  Q  37 THE  COURT  3 8 MR.  GRANT  39  A  40  Q  41  42  43  A  44  45  46  Q  47  Wilp.  W-i-l-p; is that right?  Yes.  Is there another way you could say that you were from  the house of Gyoluugyat?  In Gitksan I would say Wilp Gyoluugyat.  Can you tell the court what is the significance of  your House, what does it mean to Gitksan to belong to  a House?  In Gitksan law we go by the Houses of each chief.  Each chief has to have a house.  Why are you a member of the house of Gyoluugyat?  I am a member of the house of Gyoluugyat because I am  the Xsgoogam of Gyoluugyat's house.  Is there, if you translate the word Wilp literally  from Gitksan to English, does it refer, does it mean  house?  No, it doesn't.  Wilp in Gitksan indicates the family.  Do you mean like your husband and your children and  grandchildren?  In Gitksan, Wilp is just my side of the family, not my  husband's, but my husband has his own house, his own  Wilp, because he is a chief too.  Do you mean the people referred to to Exhibit 2, tab  two of Exhibit 2?  Yes, all those people there.  What village is Gyoluugyat from, what is your village?  As history goes of Gyoluugyat, he is from Gitangasx at  first.  Gitangasx?  Yes.  G-i-t-a-n-g-a-s-x.  And where is Gyoluugyat from more  recently?  From Gitangasx Gyoluugyat moved, well, they formed a  village Kuldo'o.  Does --  :  What was that last word?  :  K-u-1-d-o apostrophe o.  Yes.  If a Gitksan person hears your name or another Gitksan  chief hears your name, does that signify where you  come from?  By saying where I am from, from Kuldo'o, yes, they  will know where I am from.  Gitangasx House from  Kuldo'o.  You referred to the fact that in the older ancient  times Gyoluugyat was from Gitangasx? 185  1  A  2  Q  3  A  4  Q  5  A  6  Q  7  8  A  9  Q  10  A  11  1  12  Q  13  A  14  15  16  Q  17  18  i  19  20  A  21  22  1  23  Q  24  25  A  26  Q  27  28  A  29  Q  30  A  31  Q  32  A  33  Q  34 MR.  GOLDIE  35 MR.  GRANT:  36  A  37  Q  38  A  39  40  41  42  Q  43  44  45  i  46  A  47  Q  Yes.  Was this before the arrival of the Europeans?  Long before.  You have heard of a place called Tamlax amit?  Yes, I have heard of Tamlax amit.  And this is -- do you know where that refers to, where  Tamlax amit was located?  Yes.  Where was it located?  It was located down on the Skeena River, close to  Gitanmaaxs.  Did Gyoluugyat ever come from Tamlax amit?  Through the stories that have been related to me, by  the older chiefs, they never mentioned that we were  from Tamlax amit.  But they say we are from Gitangasx.  Is Gitangasx, was it a community contemporary with  Tamlax amit?  In other words, was it -- were people at  Gitangasx at the same time people were Tamlax amit or  was it earlier or later?  To my knowledge, from what it is that Gitangasx and  Tamlax amit were about at the same time, although  Gitangasx may be a little bit older.  Now, you said that you were the Xsgoogam Simoogit of  your House; does each house have a Simoogit?  Yes, every House has.  Is the house of Gyoluugyat, does it have another name  besides the house of Gyoluugyat?  Yes.  What is that name?  Ts'im ansgootsxan.  T-s-i-m-a-t-s-o-i-m (sic)?  Yes.  What does that.  :  Would you mind spelling that again?  T-s-i-m-a-t-s-o-m-i-m (sic).  What does that mean?  It means the House Of The Shadows.  And why does your House have that name?  Because every Chief's house has to have a name.  Either they would have an extra name for a House, or  it goes by the chief name of the Chief that owns the  house.  In the statement of claim your House is referred to as  the House of Gyoluugyat.  Among the Gitksan, is --  would your House ever be referred to as the House of  Gyoluugyat?  Can it be referred to that way?  Yes.  Can it also be referred to by this name Ts'im 186  1  2  A  3  Q  4  5  A  6  Q  7  A  8  Q  9  10  A  11  Q  12  13  A  14  15  16  17  Q  18  19  A  20  Q  21  A  22  Q  23  24  A  25  Q  26  27  28  29  30  31  32  33  A  34  Q  35  36  A  37  38  Q  39  40  41  42  A  43  Q  44  45  A  46  Q  47  A  ansgootsxan?  I am sorry, I tried to avoid saying it.  Yes.  Is that the same with the Houses of other Gitksan  chiefs?  Yes, each House, Chief's House has to have a name.  Does your House have any territory?  Yes.  Do the Houses -- what about the Houses of the other  Gitksan chiefs, do they have territories?  Yes, they have.  Is that an important part of a House to have a  territory?  Yes, the importance of a chief's House is that it  holds the adaawk, that's the legend or the history,  and it holds the songs, the Nax nok, and the names and  the territory.  And you have already described that the House has a  head chief?  Yes.  And it has other chiefs in the House?  Yes.  That is the same with the other Houses of other  Gitksan chiefs?  Yes.  Adaawk,a-d-a-a-w-k, and Nax nok is N-o-x, n-o-x (sic),  two words.  Later on in your evidence I will ask you  in more detail about your territory, but just to give  the court a sense of where your territory is located,  could you advise him where your territory is within  the claim, the area which is the subject matter of  this court action?  Is it the in the north, south,  east or west?  It's in the north.  Is it near any place, any other community or  geographic location?  Will you rephrase that sentence again so that I  could --  Okay.  Let me ask you this:  Do you know the location  of -- let me refer to the two northern centres of the  Gitksan, Gitangasx and Kuldo'o, do you know the  location of those two places?  Yes.  Okay.  Is your territory near either of those two  places?  Yes, Kuldo'o.  It's at Kuldo'o?  Yes. 187  1 Q   Now, my lord, at this point I would like to move into  2 a area of the -- about Gyoluugyat's House itself and  3 in more detail about the relationship between  4 Gyoluugyat's House, Gyoluugyat and the other chiefs  5 and her House.  6 You have indicated that your mother was from the  7 House of Madiik and now Madiik is in your House.  Do  8 you know, originally, what was -- was there one House  9 of Gyoluugyat or was there more than one House, that  10 is a House of Gyoluugyat and Madiik or any of these  11 other chiefs you have named?  If you could start at  12 the earliest times that you know of, and describe the  13 Houses, the House of Gyoluugyat?  14 A   You mean the chiefs that are in Gyoluugyat's House?  15 Q   Yes.  16 A  As of today?  17 Q   No, no.  As of -- just a moment.  My friend is  18 standing.  19 MR. GOLDIE:  I think it would be helpful, my lord, if the  20 witness was able to speak of whether she is referring  21 to her personal knowledge, or whether it is history  22 within the House.  I am not raising a question about  23 hearsay, but I think it is necessary to determine what  24 is handed on from generation to generation and  25 identify it as we go along, as opposed to what is in  26 the personal knowledge of the witness.  27 THE COURT:  I suppose we are going to have to come to grips with  28 that some day, Mr. Grant.  Is there any reason why you  29 shouldn't follow your friend's suggestion?  30 MR. GRANT:  Yes, I have no problem with that.  And I believe  31 what I will do, because this witness -- I am prepared  32 to come to grips with it, and I believe rather than  33 moving directly into the detail of her House now, the  34 fact that my friend raises this now, I will move into  35 the area of the oral history of the Gitksan.  36 THE COURT:  All right.  37 MR. GRANT:  38 Q   So, Mrs. McKenzie, if I could turn you to another  39 subject for a few moments.  I would like to ask you  40 about how the Gitksan have recorded their history.  41 Now, do you know of events that you can tell the court  42 about that happened before you were born?  43 A   I could, through oral history.  44 Q   You referred to the Adaawk, can you tell the court  4 5 what you mean by Adaawk?  46 A  Adaawk in Gitksan is the history or the legend.  You  47 see in Gitksan we have two things:  The Adaawk when we 1 hear of the word Adaawk, we know the meaning of that  2 when it's repeated to us orally.  But when we say  3 antimahlasxw, that means story, it doesn't refer to  4 Adaawk of the Chiefs.  Adaawk is very important to the  5 Gitksan people.  It tells their history.  6 Q   Maybe I will have Miss Stevens just spell for the  7 record.  8 THE TRANSLATOR:   A-n-t-i-m-a-h-1-a-s-x-w.  9 THE COURT:  Thank you.  10 MR. GRANT:  11 Q   Now, are Adaawk, you have used two terms for Adaawk,  12 you have used the term legend and history, are Adaawk  13 actual events that have occurred or are they mythical  14 events, that is, partly true and partly not true?  You  15 said that Adaawk are important so I would like you to  16 explain why they are important and clarify for me what  17 you mean?  18 A   The Adaawk is, as I worded, history, and it's the  19 happening of how the Gitksan people have their names  20 right from infant to a chief.  The Adaawk refers to  21 the songs that are made for the purpose of each chief  22 to use.  The Adaawk tells of the Nax nok, why it was  23 created and how it's shown amongst the people in the  24 Feast House.  The Adaawk also tells of the territory  25 of the chief.  Now when we say Adaawk, this holds the  2 6 whole four of the Adaawk world.  27 Q   Does your House has an Adaawk?  28 A   Yes.  29 Q   And does that Adaawk or history describe events that  30 occurred before you were born?  31 A   Yes.  32 Q   Does it describe events that occurred before the white  33 man was here?  34 A   Yes.  35 Q   Do you know the Adaawk of your House?  I am not asking  36 to you tell it right now, I am asking if you know it?  37 A  Will you rephrase that again?  38 Q   Do you Gyoluugyat, if I asked you right now to tell  39 your Adaawk, could you tell it, do you know what the  40 Adaawk is of your House?  41 A   Yes.  42 Q   What I would like you to explain to the court is how  43 you learned the Adaawk of your House?  44 A   I learned it through oral history through my  45 grandmother.  46 Q   Okay.  That was Sarah?  47 A   That was Sarah. 189  1  Q  2  A  3  Q  4  A  5  6  7  8  9  10  11  12  Q  13  14  A  15  16  17  Q  18  19  20  A  21  Q  22  23  24  A  25  26  27  28  29  30  Q  31  32  33  A  34  Q  35  36  A  37  38  Q  39  A  40  Q  41  A  42  Q  43  44  A  45  Q  46  47  A  Wesley?  Yes.  How did she teach it to you?  She taught me when I was about seven years old and  they had feastings about it, that I should know the  Adaawk, the oral, how it's put to me.  Sometimes  through over a meal table.  These are how the older  people would teach their children, their young people  of their House their Adaawk, at meal time and before  they retire at night.  And it's an everyday thing, not  just once in a while, it's an everyday taught.  And is there a reason why it was your grandmother who  taught you the Adaawk?  Because she was the oldest of the House, of  Gyoluugyat's House.  And it was her duty to repeat  these Adaawk to me.  You described earlier about other events that have  occurred before you were born, such as the six sisters  who all had boys?  Yes.  How did you learn of that, of those events, who taught  you about your history of your family, of the House of  Gyoluugyat?  It's through names.  When we are infants, just born,  we have a name given to us, and we change our names  three or four times before we reach the age of adult.  Now, when these change of names, the Adaawk goes with  the name, this is how the Gitksan people know the  Adaawk of each name they hold.  Are the Adaawk, have the Adaawk of -- has the Adaawk  of Gyoluugyat been publicly stated at any time in your  lifetime, been told at a public event?  Yes.  When was that and what was the event that it would be  told at?  Whenever that is a feasting of names given, this is  when the Adaawk of Gyoluugyat is repeated.  And you have attended such feasts?  Yes, I have.  Both before and after you have been Gyoluugyat?  Yes.  And at those feasts are chiefs of other Houses  present?  Yes.  Have you been at feasts of other chiefs where their  Adaawk have been told?  Yes, I have. 190  1 Q   And from what your grandmother has told you, do you  2 know if Adaawk were told at feasts before you were  3 born?  4 A   Yes.  5 Q   Can you tell the court why the Adaawk are told at  6 feasts?   You have explained it happens when names are  7 given, I understand that, but why is that important to  8 tell the Adaawk?  9 A   Because the Adaawk tells, in a Feast House, that who  10 are the holders of fishing places, creeks and  11 mountains that belong to each House of the chiefs,  12 where they get food, like berry picking, they have --  13 they tell the owner and the location in a Feast House.  14 So, through this -- this is how I have my knowledge  15 now is by attending the feastings of any chief, even  16 if it's my own feasting, I hear the chiefs repeat or  17 tell of the Adaawk of theirs and ours.  This is the  18 importance of the feasting, that these Adaawks are  19 told.  20 Q   How accurate are the Adaawk of -- is the Adaawk of  21 your House, in other words, how close to the truth of  22 those histories?  23 A   In Gitksan law all Adaawks are true.  24 MR. GOLDIE:  Yes, isn't that a conclusion for your lordship to  25 reach?  26 THE COURT:  Well, stated that way, indeed, yes, it is.  27 MR. GRANT:  Maybe the way the question was stated, but I think  28 the answer she referred to in the Gitksan system.  I  29 was clearly trying to lead it --  30 THE COURT:  Truth is a quality that someone puts on a fact or a  31 statement.  I think she can certainly state her belief  32 in that regard.  This is probably semantical, as much  33 of this is at the moment.  I think the objection is a  34 proper one.  I think, however, that the witness can --  35 well, quoting from the Australian case, perhaps you  36 could ask her what the reputation is within the  37 Gitksan community for the truthfulness of a Adaawk.  38 MR. GRANT:  That's what I was leading to.  3 9 THE COURT:  Yes.  40 MR. GOLDIE:  By a torturous path.  41 MR. GRANT:  Depends who is being tortured.  42 Q   Mrs. McKenzie, in -- to the Gitksan chiefs, what is  43 the, as his lordship has said, what is the reputation  44 as to the accuracy of the Adaawk?  45 A   How could the Adaawk be repeated if it's not true to  46 the Gitksan people?  They got to be accurate and I  47 know this from experience of myself that they are 191  1 accurate.  And I believe in it.  2 Q   And would the other chiefs be as firm in what they say  3 that it's accurate as you are?  4 A   Yes, in a Feasting House you hear that they all, we  5 all believe in it.  6 Q   You have heard -- have you heard in your lifetime  7 about the killing of a man named Yomans?  8 A   I heard about it.  9 Q   And who -- this event occurred before you were born?  10 A   Yes.  11 Q   And how did you learn of this event and the -- and  12 what happened?  13 A  My father was related to Mrs. Yomans and it was  14 Charles Yomans that was murdered.  So it was through  15 my father that I knew very little of it.  16 Q   And you have -- so what you know of that event is  17 through what was told to you and not through things  18 that you read?  19 A   No, I didn't read anything on that.  It was told to me  20 repeatedly at our home because my father talked about  21 it.  22 Q   And I am not asking you to do this right now but if I  23 did ask you to describe the events around the killing  24 of Yomans, that is, where it happened and how it  25 happened, could you tell that to the court from what  26 you have been told?  27 A  Well, it happened in townsite of Hazelton, today it's  28 called.  And Charles Yomans had a store in Hazelton.  29 THE COURT:  You said you weren't going to ask the witness to  30 give the story.  31 MR. GRANT:  32 Q   I wasn't going to ask you to describe it, you are  33 showing that you could describe the events of what  34 happened from what what your father told you; is that  35 right?  36 A   Yes.  But as I said, I know very little of it.  But  37 how he was really murdered was one thing I didn't, I  38 am not clear on that.  39 Q   Maybe at this point, and I would like to ask you to  40 tell what you know of the killing of Yomans, the  41 description of the event the killing of Yomans?  42 MR. GOLDIE:  Well, is this because it is part of the Adaawk?  43 THE COURT:  That is not Adaawk, is it, that is not part of a  44 Adaawk, is it?  45 MR. GRANT:  No, the reason I am leading this is to demonstrate  46 the oral tradition and the passing on of this evidence  47 through oral tradition, my lord. 192  1 THE  COURT  2  3  4 MR.  GRANT  5  6  7  Q  8  9  A  10  Q  11  12  A  13  14  Q  15  16  A  17  18  Q  19  A  20  Q  21  22  A  23  Q  24  25 THE  COURT  26  2 7 MR.  GRANT  28  Q  29  30  31  32  A  33  34  35  36  37  Q  38  39  40  A  41  Q  42  A  43  Q  44  45  A  46  Q  47  A  :  Well, I have serious reservations about it, Mr.  Grant.  It's like proving reputation by specific acts,  isn't it?  :  Okay.  I am not sure it leads anywhere anyway.  I  will move on from this.  I will return to it at a  later stage in the context.  Do the children, did your children learn the Adaawk of  the House of Gyoluugyat?  Yes, they have.  And how did they learn the history of the House of  Gyoluugyat?  Because I related it to them what my knowledge is and  what I know.  Did either your mother or your grandmother talk to  your children about the Adaawk?  My grandmother died in 1942.  So I have a daughter and  a son that was old enough to listen to her.  That is Pearl and Ben?  Yes.  Do you know if your son or your daughter retained any  of the things told to them by their grandmother?  Yes.  Can you tell the court what you have observed about  their recollections?  :  I don't think so, Mr. Grant.  That's history by  reputation, too many times removed, I should think.  Are you concerned as to whether the Adaawk of your  House will survive beyond your generation and into  future generations, that is, the younger people, are  they learning the Adaawk, to your knowledge?  To my knowledge the young people are taking interest  in it and to my knowledge too that our Adaawk will  never die.   Starting from oral, now the younger  people have it written in black and white.  It shows  that our Adaawk will never die.  Now, I would like to move into the area of your House,  Mrs. McKenzie.  As I understand your evidence, there  is presently one House of Gyoluugyat; is that correct?  Yes.  And Kwamoon, Madiik and Hlo'oxs are in that House?  Yes.  At the present time.  Yes.  Originally, at Gitangasx, was there one or more  than one House involving these chiefs?  How the Adaawk was told, there were.  There were --  There were other Houses. 193  1  Q  2  A  3  Q  4  5  A  6  Q  7  8  A  9  Q  10  11  A  12  Q  13  A  14  Q  15  16  A  17  Q  18  19  A  20  Q  21  22  23  A  24  25  26  27  28  29  30  31  32  33  34  35  36  37  Q  38  A  39  Q  40  A  41  Q  42  A  43  Q  44  45  46  A  47  Okay.  You may have misunderstood my question.  Maybe.  At Gitangasx were Kwamoon, Madiik and Hlo'oxs in  Gyoluugyat's House originally?  Yes.  Did they separate from that House, either at Gitangasx  or later?  Kuldo'o is when each of them had their House.  And when you say each of them, you are referring to  Gyoluugyat?  Yes.  Kwamoon, Madiik, and Hlo'oxs?  Yes.  Why would these Houses have separated at Kuldo'o or  why did they separate at Kuldo'o?  Would you rephrase that question?  You said originally there was one House with all these  chiefs in it.  Yes.  Is there reasons in the Gitksan system for chiefs to  leave a House and set up their own House?  And if you  can explain to the court why that happens.  In each House, like the Gyoluugyat's House, there are  wing chief, like a sub chief.  When one chief sees  that the House of Gyoluugyat can hold no more family,  the second chief, the right hand chief or the left  hand chief, would decide to build a House.  And so  this term goes through, like Kwamoon would build a  House, and with him he would take some of the females  and the males into his House.  So, those people are  named as Kwamoon, they are all of Kwamoon's House, but  originally they are from Gyoluugyat House.  The same  way with Madiik, same way with Hlo'oxs.  And, may I  add now that talking about the Houses in Kuldo'o, a  House that moves there that is really connected with  Gyoluugyat, the Luus.  And who is the present holder of the name Luus?  Today?  Yes.  Jeff Harris senior.  And he is one of the plaintiffs in this action?  Yes, I believe he is.  Does Gyoluugyat, Kwamoon, Madiik and Hlo'oxs, do they  share the same Adaawk or do they have different  Adaawk?  There is two answers to that.  The first one is  that -- how did you phrase it? 194  1  Q  2  A  3  Q  4  A  5  Q  6  7  A  8  Q  9  10  11  12  A  13  Q  14  A  15  16  Q  17  18  19  A  20  Q  21  22  A  23  Q  24  25  A  26  Q  2 7 MR.  GOLDI  28  29  3 0 MR.  GRANT  31  Q  32  33  34  35  36  37  38  39  40  A  41  Q  42  A  43  Q  44  A  45  Q  46  A  47  Q  Do they share the same Adaawk?  I would say yes to that.  And the next one?  Do they have different Adaawk?  Yes.  So they both have, they share the Adaawk of Gyoluugyat  House and they also have their own Adaawk?  Yes.  Today does Kwamoon have territory -- today, does  Kwamoon have territory which is separate from  Gyoluugyat's or is the territory together with  Gyoluugyat's?  It's a territory of the four chiefs I have mentioned.  There is a territory?  Yes, there is a territory.  And within that territory  would be the Madiik, Luus, Kwamoon, Gyoluugyat.  And do you recall that you prepared, an interrogatory  was prepared that had a map attached of your  territory?  Yes.  In that map did that territory that, outer boundary,  did that include Kwamoon, Madiik and Luus territory?  Yes.  At Kuldo'o, can you just tell me which of the chiefs  that are now in your House had their own House?  Had their own House you mean?  In Kuldo'o, yes.  3:  Once again I would ask my friend to identify  whether this is by virtue of Adaawk or personal  knowledge.  :  Okay.  And what I would like you to tell me was, I am talking  about having their own house, I mean whether they had  a separate physical structure, a house what small H,  and then I would ask you in your answer to explain  whether you know this personally, that is, you saw it  or it was told to you by someone?   Let me go back.  I  will ask the questions in two parts, my lord, then I  will cover the point raised by my friend.  In Kuldo'o, Gyoluugyat had a house?  Yes.  Did Kwamoon have a separate house in Kuldo'o?  Yes.  Did Madiik have a separate house in Kuldo'o?  Yes.  Did Luus have a separate house in Kuldo'o?  Yes.  How do you know that, that they had four houses, they 195  1 had four separate houses at Kuldo'o, is that from the  2 Adaawk or from you personally seeing them or another  3 way?  4 A   I didn't presently see these houses.  But it's  5 referred to me that all these four chiefs had their  6 own Houses in Kuldo'o.  7 Q   And who told that to you?   Was this part of what,  8 when you were taught the Adaawk?  9 A  At the present time do you mean or --  10 Q   You are talking about, in the ancient time when the  11 people moved to Kuldo'o, who taught you that there  12 were four Houses in the ancient time?  13 A  Well, that's through the Adaawk.  14 Q   And what about in the present time, that is, more  15 recently, do you know if there were separate Houses?  16 A   The way it is today, there is only one House that we  17 refer to as Gyoluugyat.  18 Q   Now, I would like your help to clarify, how can the  19 court, in any given example, know whether chiefs who  20 are now in a house, once had their own house, is there  21 way in the Gitksan system that you know that?  22 A   Each house of the chief, and we call them wings, and  23 they are, there is four on each side of a head chief.  24 And these what we call in Gitksan, the wings, hlaga  25 koaxhl simoogit.  2 6 THE COURT:  And does that mean wings?  27 MR. GRANT:  That's what I was going to ask next.  28 Q   What would that mean translated, the word that you  29 have just described?  30 A   It means the wings of the head chief.  31 Q   We interrupted for the spelling but you were  32 describing that there were four of these?  33 MR. GOLDIE:  Four on each side?  34 A   Four on each side.  When you go to a feasting house,  35 it shows there how the chiefs are seated, you see,  36 there is always the head chief, the four on the right  37 and four on the left.  Even in the seating in the  38 Feast House.  3 9 MR. GRANT:  40 Q   Okay.  41 A   This is how it's shown more.  42 Q   We will come back to the seating of the feast later on  43 in your evidence.  44 Now, just to, because the question I asked is quite  45 a while ago, I will re-state it:  Let me ask you this  46 way:  Can, under the Gitksan system, could Kwamoon  47 leave your house and set up her own house today? 196  1  A  2  Q  3  A  4  Q  5  A  6  7  8  9  10  11  12  Q  13  A  14  15  Q  16  A  17  Q  18  A  19  Q  20  A  21  Q  22  23  A  24  Q  25  26  27  A  28  29  30  Q  31  32  A  33  34  35  Q  36  37  A  38  Q  39  40  41  A  42  43  44  Q  45  46  A  47  Today?  Yes.  Yes, she could.  How would she do that?  She would have to build her house and then raise a  totem pole, and that's how she would move out.  She  would take her boys with her and then, of course, in  the Gitksan law, she has, with just her boys there,  she needs females to go into her house.  So this is  when she takes some of, maybe one or two of the two  sisters she had, daughters would go into her house.  They would be her neices?  Yes, they would be her neices along with her three  boys .  Now, does Kwamoon have any crests of her own?  Yes.  Does Madiik have crests of his own?  Yes.  And Hlo'oxs?  Yes.  You said that she would have to build her house and  raise the pole?  Yes.  Is there a -- would it just be a matter of her having  the pole carved and erected or would she have to do  more than that?  Well, the way I will put it, that she has to have a  house first.  We have to build her house, and then  raise a totem pole.  Does she have to have a feast to do either of these  things?  Yes, she has to put on a feast of erecting a house.  And another feasting would be put on for the raising  of the totem pole.  Would chiefs of other clans, that is, other than the  wolf clan or Lax Gibuu, be invited to those feasts?  Yes.  And what is the significance of those chiefs, why  would they have to be invited to the feast, in the  Gitksan system?  We carry on from the oral history, that our history is  shown and we continue to do the ways of the chief.  It  is expected of a chief.  They have to fulfill that.  What would happen to Kwamoon's territory if she  separated from your house?  With the territory we have, and I say we, because this  includes Kwamoon, Madiik, Hlo'oxs, the territory we 197  1 hold is, to my understanding, are close together, so  2 it's a vast territory and we share it.  Only as a  3 family, we have to have shown where the territory of  4 Kwamoon and these other Madiik and Hlo'oxs, but it's  5 all connected together.  6 Q   You have described how Kwamoon could move out of your  7 house, could Madiik leave your house?  8 A   Yes, they could.  And Hlo'oxs, whenever they want to  9 now.  The reason for that, why they were in  10 Gyoluugyat's House was, like I said before, when we  11 have male, you don't expand your family in the House  12 so this happened to Kwamoon's house and Hlo'oxs and  13 when Madiik died, there was no one in the family  14 capable of taking the chief name, because my children  15 were all very young at that time.  So now that they  16 have these names, and have families of their own,  17 whenever they want to have their house built, they  18 will do it.  19 MR. GRANT:  My lord, I am moving into a new area.  Maybe we  20 could break.  21 THE COURT:  Yes, we will take the break.  22  23 (PROCEEDINGS ADJOURNED FOR SHORT RECESS)  24  25 I hereby certify the foregoing to be  26 a true and accurate transcript of the  27 proceedings herein to the best of my  28 skill and ability.  29  30  31  32  33 Wilf Roy  34 Official Reporter  35  36 xh2 MARY MCKENZIE - (for Plaintiffs)  37 (PROCEEDINGS RESUMED AT 3:20)  38  39 THE REGISTRAR:  Order in court.  4 0 THE COURT:  Mr. Grant.  41 MR. GRANT:  42 Q   Mrs. McKenzie, I would like to ask you if there is a  43 Gitksan word, Sto'o wilp; is that a Gitksan word?  44 A   Yes.  45 MR. GRANT:  And maybe Miss Stevens could spell it.  46 THE TRANSLATOR:  S-t-o-'-o-w-i-1-p.  4 7 MR. GRANT: 19E  1  Q  2  3  A  4  Q  5  6  A  7  Q  8  A  9  10  11  12  13  Q  14  A  15  Q  16  A  17  Q  18  19  A  20  21  22  23  Q  24  A  25  26  27  2 8 MR. (  GRA1  29  30 THE '  IRA]  31  32  A  33  34  A  35  36  37  38  39  40  41  42  43  Q  44  45  46  A  47  Q  What does that mean, can you explain what it refers  to?  It refers to the -- to the wing of the chief.  So who -- so these Chiefs we've referred to, Gwamoon,  Madiik, and Luus, are they your Sto'o wilp?  No.  Who are your Sto'o wilp.  The first name was?  The Gitksan way -- now, let me just take one moment  here to -- in Gitksan way we'd like -- it's not --  it's not a separate thing, when we say in Gitksan,  that doesn't mean that two Chiefs are separated, we're  still connected in that house.  Yes?  And they are the wings of that Chief.  Um-hum?  Within the house.  Can you explain it in the context of Gyoluugyat's  house?  In Gyoluugyat's house I referred that there are four  Chiefs on each wing of me.  Now, in other Chief's  Houses, they have maybe less and they may be more than  eight in one house are the wings of one Chief.  Um-hum.  So throughout this court, I know that some of the  plaintiffs would say there's only two or maybe four,  because each house has different -- has more family in  it, more Chiefs in it, some of them very less.  :  Um-hum.  You earlier referred to the term Wil 'na  t'ahl.  Can you spell that for the record.  IATOR:  W-i-1-'-n-a-t-'a-h-1.  What does that term —  can you explain what that refers to for the court?  Wil 'na t'ahl is -- I'm referring to Gyoluugyat's  word.  My Wil 'na t'ahl are from the House of Madiik,  Gwamoon, An hlo'o, Luus, 'Wee Eelaast, Haaluus, and  Amagyat.  The people of these Houses are my Wil 'na  t'ahl.  We're closely woven.  Sometimes in the years  behind us these people were linked together in houses,  and as I referred how Gwamoon would leave Amagyat's  House, still Gwamoon is my Wil 'na t'ahl.  So my Wil  'na t'ahl will be from the Houses of these Chiefs I  mentioned.  Now, in the document, the Geneology that we showed you  earlier, Gwamoon, the present Gwamoon and Madiik and  Hlo'oxs are included, is that correct?  Yes.  And presently they are in your House? 199  1  A  2  Q  3  A  4  Q  5  A  6  Q  7  A  8  Q  9  10  A  11  Q  12  A  13  Q  14  A  15  Q  16  A  17  Q  18  A  19  Q  20  21  A  22  23  Q  24  25  A  26  Q  27  28  A  29  30  31  32  33  34  Q  35  36  37  A  38  Q  39  A  40  Q  41  42  43  44  A  45  Q  46  47  Yes.  But you also referred to three other houses?  Yes.  Three other Chiefs?  Yes.  That was Wii Eelaast?  Yes.  And who -- and that is W-i-i E-e-1-a-a-s-t.  And who  is that today, who holds that name today?  James Angus Junior.  Okay.  And he is a plaintiff?  Yes.  I believe he is.  And Amagyat, you referred to Amagyat?  Yes.  And who is that?  Percy Wilson.  And you referred to Luus?  Yes.  They are not referred to on this chart that we've  referred to this morning, are they?  No.  But when you use the word Wil 'na t'ahl, it  refers to the other three I mentioned.  Okay.  Does it refer to all of the people in their  House, as well as those three Chiefs?  Yes.  Can you explain why Wii Eelaast, Luus, and Amagyat are  part of your Wil 'na t'ahl?  As I said before, I take for instance when I said that  Gwamoon would decide to build a House, and then he  leaves, and so all these other Chiefs do the same, so  they are all from Gyoluugyat's House start off with,  and they each have their own houses.  Now, and in  Gitksan, this is called Wil 'na t'ahl.  And this time that they all came from one House, is  this the time of Kuldo'o or of the time of Kit an  gasx?  Probably to my knowledge it's from Kit an gasx.  So this is quite an ancient connection?  Yes.  It is quite ancient.  If I walked into a Feast at which you were sitting at  your table, could I see by watching where you are  sitting and where Luus is sitting, could I see that  there was a relation between you?  Yes.  Can you explain that to the court, what the court  would see if he walked into the Feast Hall and saw  your table, that is with respect to where Luus is? 200  1  A  2  3  4  5  Q  6  7  A  8  9  10  11  12  MR.  GRANT  13  14  15  16  17  18  19  20  21  THE  COURT  22  MR.  GOLDI  23  24  25  26  MR.  GRANT  27  THE  COURT  28  MR.  GRANT  29  30  31  32  THE  COURT  33  MR.  GRANT  34  35  36  THE  COURT  37  MR.  GRANT  38  THE  COURT  39  MR.  GRANT  40  Q  41  42  A  43  44  Q  45  A  46  47  MR.  GRANT  To the table in the Feast House mentioned, the Kuldo'o  people's table, so first I take the head seat of that  table.  On my left would be Luus, next would be  Anhlo'o -- am I going too fast for your spellings?  We'll get the spellings after you're finished, just  keep going and Miss Stevens will mark them down.  I'll got to my left now.  On my left would be  Gadilo'o, Madiik, Gwamoon, Hlo'oxs, Woos, Siighlgoxws,  so you'll see the connections thereof between Luus,  Woos, and Amagyat's House on the table there, it shows  you.  :  Now, my Lord, I wish to refer at this point to the  second document under tab 3 of Exhibit 2.  I wish to  put this to the witness.  This document was drawn on  the -- this is based on what the witness has informed  counsel of and was drawn as a convenient way of  showing what she's describing.  I'll leave it to the  court to put this document to the witness and ask her  to confirm whether this reflects what she is  describing.  :  Have counsel seen this?  E:  No.  We were supplied with a form of a seating  arrangement with responses to interrogatories, but it  bears no relationship to this, or at least it doesn't  appear to.  There was a question on the interrogatories which --  Well, apart from that.  Which deals with seating.  This is this seating  here, this particular diagram here is where -- is a  description of, as you can see the head of it, Mrs.  McKenzie.  It's different from what she just said, isn't it.  That's why I want to ask her, I mean I wanted to be  clear on those names and I don't know -- I don't  believe it is different than what she said.  Well, she said Luus was on her left.  Yes.  Here is on the right.  Yes.  Can you show the court which side Luus is on?  You said "I was on the left".  Which side is Luus on?  My right, facing -- well, in this courthouse, the door  is there.  Right?  And our table, I sit like he does, and on my right  would be Luus, next would be Anhlo'o.  :  Okay. 201  1 THE  2 MR.  3  4  5  6  7  8 THE  9 MR.  10 THE  11  12  13  14  15 MR.  16  17  IS  MR.  19 MR.  20  21  22 THE  2 3 MR.  24 THE  2 5 MR.  2 6 THE  27  28  29  30  31  32  33  34 MR.  35  36  37 THE  3 8 MR.  39  4 0 THE  41 MR.  42 THE  43  44  45  4 6 MR.  47  COURT:  Well —  GRANT:  My Lord, there's one comment.  You may have not been  watching, and this is why I didn't pick up on what she  said.  I was watching the witness' hand, and she was  pointing to this side and then she pointed to her left  side referring to others, and I was watching her, and  I agree, she may well have said the left.  COURT:  She said the left.  GRANT:  But her hand was indicating the right side.  COURT:  All right.  Well, the trouble with this document, of  course, is that it's leading, isn't it, to put it to  the witness.  Certainly is the convenient way to do  it, and one shouldn't expect too much from memory.  It's like a policeman's note in some way.  GRANT:  I have no problem with having her go through it.  I  just wanted to try and save at least the spelling of  it, that might save a little bit in that --  GOLDIE:  Who, though, is the author of this document?  GRANT:  This was prepared -- this was prepared in the -- on  the instructions of Mrs. McKenzie to myself.  It was  prepared by my assistant.  COURT:  And you understand that this is your brief.  GRANT:  This is what she told me, and I had it drawn out.  COURT:  Yes.  GRANT:  And my writing is not as good as this.  COURT:  Well, if counsel object, and I'm not sure if they do  or not, then it's necessary to have the witness  exhaust her recollection, and if that doesn't work  counsel can ask her to repeat it, and if that doesn't  work, eventually counsel can put his brief before the  witness.  At least, that's what I understand the  authorities to say.  I suspect that counsel won't  really object if you lead on this, will you gentlemen?  GOLDIE:  The -- not particularly.  This sort of thing can be  avoided so easily by just letting us have it a few  days beforehand.  COURT:  I'm sure that's right.  GOLDIE:  I'm going to save my objections for some more  substantial matters.  COURT:  All right.  MACAULAY:  I make no objection.  COURT:  Yes, all right.  You can put the document before the  witness.  As a matter of fact, you can ask her if  that's the way they sit, and if she says yes, that's  all we really need to do.  GOLDIE:  All that has to be done is this, what she told X,  whoever X is. 202  1  THE  COURT  2  MR.  GRANT  3  Q  4  5  6  A  7  Q  8  A  9  Q  10  11  12  13  A  14  Q  15  16  A  17  Q  18  A  19  Q  20  Q  21  22  A  23  Q  24  A  25  26  27  Q  28  A  29  30  31  32  33  34  35  36  37  MR.  GRANT  38  39  THE  COURT  40  41  MR.  GRANT  42  THE  COURT  43  MR.  GRANT  44  Q  45  46  47  A  Yes,  You recall meeting with my articling student and  discussing the seating with her and showing and/or  having her diagram out the seating of your table?  Yes.  Is that correct?  Yes.  Now, I wish to show you a document and ask if you have  seen that before.  This is the second document under  tab 3.  It's entitled "The Modern Seating".  Have you  seen a copy of that document before now?  Yes.  I believe I have.  Now, the centre square, can you explain what that  represents and what the names on both sides represent?  The square there is the table.  Um-hum?  At the head table sits Gyoluugyat.  Mm-hmm.  And the names along the left-hand side as you look at  the book along the binding side, starting with Luus?  Yes.  Is that the order of seating at your table?  Yes.  That's the order we sit every time there is a  Feasting of Gitksan, this is always the way that the  Chiefs are seated in their Feast House.  At your table?  At my table.  And if one of these Chiefs is seated not  exactly it disrupts the whole table, and the head  Chief is embarrassed, so this is the reason why  Gitksan law we have to keep our own seats at a  Feasting in order every time.  How these names come,  like with the left wing and the right wing, and it  shows on this copy here how these people sit from each  House, and every Chief that has a table have their  names down too like that.  Okay.  I would ask -- well, if the document has been  marked as an exhibit, so -- for identification.  Well, it's the second document page, page 2 of tab 3  of Exhibit 2.  Right.  Yes.  Now, so from this document -- or let me ask you this.  Chiefs from other -- is it correct that Chiefs from  other Houses sit at your table?  No. 203  1  Q  2  A  3  4  Q  5  A  6  Q  7  8  9  10  11  A  12  13  14  Q  15  A  16  17  18  19  2 0 MR.  GRA1  21  22  Okay.  When I --  It all has to be on Gyoluugyat's House, with the  Chiefs, the wings would sit at the Gyoluugyat's table.  Is Luus in your House?  Luus is the wing.  Okay.  Do you -- do you consult with the persons in  the Wil 'na t'ahl, the other Chiefs in the Wil 'na  t'ahl for specific purposes, do you as Chief go to  Luus to talk about certain business, and what kinds of  things do you consult with him and other Chiefs about?  Yes.  I have to go to the head Chief, I mentioned that  I call Wil 'na t'ahl, whatever the case may be at a  Feasting House.  Um-hum?  In the territories, the songs are sung from somebody  else when it belongs to us, and there are no -- if  someone else shows that out without my permission I  have to talk to them why head Chiefs, about the wings  and the Houses that come under Wil 'na t'ahl.  :  Another term I would like to ask you about is what  is the Wilxsi'witxw, and before you explain, maybe  Miss Stevens can spell it.  23 THE TRANSLATOR:  W-i-1-x-s-i-'-w-i-t-x-w?  2 4 MR. GRANT:  25 Q   Go ahead?  26 A  Wilxsi'witxw in Gitksan are the people of my father's  27 House, like his brothers and his sisters.  28 Q   This is a totally different House from yours?  29 A   Yes, because it's the House of my father, and my  30 father has -- it is his own House.  31 Q   Can you explain the importance of the Wilxsi'witxw to  32 you, of your Wilxsi'witxw?  33 A   The importance of my Wilxsi'witxw, or Wilxsi bagwinsxw  34 is another word when there's more than one of the  35 Wilxsi 'witxw, is one.  Now you've got that all  36 written down.  37 MR. GRANT:  I'll let her spell it.  38 THE TRANSLATOR:  W-i-1-x-s-i-b-a-g-w-i-n-s-x-w.  3 9 MR. GRANT:  40 Q   Go ahead?  41 A  My Wilxsi bagwinsxw are responsible for me because  42 they're from the House of my father.  The importance  43 of them to be with me is they have to -- they have to  44 be in with my -- my House and my father's House.  45 Whenever I put a Feasting on they have to be there and  46 they have to assist me with -- I'm say in a Feasting  47 House.  When there's a big Feasting a Chief would use 204  1  2  3  4  Q  5  6  A  7  8  Q  9  A  10  Q  11  Q  12  13  14  A  15  16  17  18  19  Q  20  A  21  Q  22  A  23  24  25  Q  26  A  27  28  29  30  31  32  33  34  Q  35  A  36  37  38  39  40  Q  41  A  42  Q  43  44  45  46  47  A  their Nax Nok.  Now, if I put the Feasting on and I  give out my Nax Nok my Wilxsi bagwinsxw will assist me  in that.  How do you mean they will assist you, what will they  do?  Well, they would -- they would help me go around and  show the people what my Nax Nok is and act it out.  Um-hum.  And they would act it out with me.  Mm-hmm.  What about at the time when a person dies?  Is there  anything that the Wilxsi'witxw is responsible for at  that time?  Yes.  When a head Chief dies -- I'll put this as a  head Chief.  When a head Chief dies the very first  people that are called to do the work -- when I say  work, it means that -- well, let me use the word  undertaker.  Um-hum?  That's as close as I can put it right now.  Um-hum?  They -- if my Chief dies, if I die, which I hope not  right away, my Wilxsi bagwinsxw will be called upon to  buy a casket for me.  Um-hum?  My family doesn't have to worry about that, they go to  my Wilxsi baginsxw and they buy a casket for me.  This  is the purpose of my -- their duty of my Wilxsi  bagwinsxw when you asked the question before.  Now,  then a person is selected to buy a casket, a person is  selected to buy my clothes, persons are selected to  dig the grave for me, and these are the important  things the Wilxsi bagwinsxw will do for me.  Um-hum?  And these people are not only notified when they're  here, I am  -- I'm dead, they expect word to come to  them, because they are the people of Gadilo'o House,  and they're expected, but we still have to approach  them.  Um-hum?  To respect the House.  I would like to move into another area now, my Lord.  I would like to move into the area of the authority of  the Chief, with the example of Gyoluugyat and the  source of her authority.  Is there a word in Gitksan  for law?  Yes. 205  1 Q   What is that word?  2 A  Ayook'.  3 MR. GRANT:  Can you spell that, please?  4 THE TRANSLATOR:  A-y-o-o-k-'.  5 THE COURT:  A-y-o-o-k-'?  6 THE TRANSLATOR:  Yes.  7 THE COURT:  Thank you.  8 MR. GRANT:  9 Q   Within the Gitksan system are there laws?  10 A   Yes.  11 Q   Under Gitksan law do you have -- did you have the  12 right to bring this court action for your House?  13 A  Would you phrase that again, please?  14 Q   Under Gitksan law do you, Gyoluugyat, have the right  15 to bring this court action for your House?  16 A   Yes.  17 Q   Okay.  Can you explain your authority to do that?  18 A   Being the Xsgoogam Simoogit of Gyoluugyat's House I'm  19 entitled to make decisions, and I have to confer this  20 to the other Chiefs within my House.  21 Q   Okay.  22 A   Before I say yes, the wings, my wings, I approach  23 them, and they all agree, so I brought myself into  24 this court case.  25 Q   And could you be specific as to which of your wings  26 you discussed this with before you decided to bring  27 this court action?  28 A   I had to talk to Gwamoon, Madiik, Hlo'oxs, and within  29 my House is Gadilo'o.  Of course I sit with her at the  30 table.  31 Q   Um-hum?  32 A   So these are the people that I spoke with.  33 Q   Now, did you speak with Luus?  34 A   Yes.  I had to speak with him and with Wii Eelaast and  35 Amagyat.  Now, this is where all the -- where Wil 'na  36 t'ahl comes in.  37 Q   Yes.  38 A   That we have to decide and call on these five people,  39 and they discuss -- a Chief may have the authority of  40 a House, but still that Chief has to notify the wings  41 of the Chief, they have to refer to them, and this  42 matter that is brought to them would be tossed about  43 so that they're prepared, they are prepared to -- like  44 with this court case today, here, I'm up at the  45 witness stand here, my other Chiefs, my wings are in  46 this courtroom with me, so I -- they had to be with me  47 today. 206  1 MR. GRANT:  My Lord, I note it's a bit before 4:00, but I was  2 going to move into an area that's fairly detailed, and  3 I wonder if maybe we can --  4 THE COURT:  Well, if you think that's the best way to proceed  5 I'll be governed by your advice in that regard.  6 MR. GRANT:  Thank you, my Lord.  7 THE COURT:  All right.  We'll adjourn then until 9:30 tomorrow  8 morning.  9 THE REGISTRAR:  Order in court.  This court stands adjourned  10 until 9:30, May 14th.  11  12 (PROCEEDINGS ADJOURNED AT 3:50)  13  14 I hereby certify the foregoing to be  15 a true and accurate transcript of the  16 proceeding herein transcribed to the  17 best of my skill and ability  18  19  20  21 Graham D. Parker  22 Official Reporter  23 United Reporting Services Ltd.  24  25  26  27  28  29  30


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