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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1987-05-28] British Columbia. Supreme Court May 28, 1987

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 703  1 Smithers, B.C.  2 May 28th, 1987  3  4 (PROCEEDINGS RECONVENED AT 9:30 a.m.)  5  6 THE REGISTRAR:  Order in court.  In the Supreme Court of British  7 Columbia, this 28th day of May, 1987.  Delgam Uukw and  8 others and Her Majesty the Queen.  9 THE COURT:  Thank you.  Well, I think that we should have a  10 discussion about the application of the Hearsay Rule  11 to evidence generally, and perhaps to the adaawks  12 specifically.  And I don't know whether to state my  13 understanding of your position, Mr. Rush, or allow you  14 to do it.  I think I should allow you to do it.  15 MR. RUSH:  Yes.  I'm prepared to make a submission to you on  16 that at this time.  17 THE COURT:  I would be happy if you would, please.  18 MR. RUSH:  I have some authorities which I'll make some  19 reference to.  2 0 THE COURT:  Thank you.  21 MR. RUSH:  My Lord, it is our submission here, and I'm going to  22 deal first with the question of the oral history, if I  23 may characterize it that way.  24 It's our submission that the evidence of the oral  25 history of the Gitksan and Wet'suwet'en people should  26 be admitted as evidence in the case.  The evidence of  27 oral history already led by the first two witnesses  28 was directed at establishing the following:  It's  29 directed at establishing the social organization of  30 the Gitksan people, the identity of the House, clan  31 and wil'nat'ahl, the identity of the chiefs, and the  32 origin of names, how and when crests were acquired.  33 It is directed at establishing major events in the  34 life of the chief, and the House occurrences on the  35 territories and in respect of villages.  The  36 relationship of the chief, the name, and the crest to  37 particular territories, fishing sites owned by the  38 House, at establishing the Nax Nok and the poles owned  39 by the House.  And finally, the way of life and land  40 holding laws of the Gitksan.  And although you have  41 not yet heard evidence with regard to the Wet'suwet'en  42 people, a similar purpose for the calling of oral  43 history would apply regarding them.  44 Now the oral history in the Gitksan language, My  45 Lord, is expressed in the word "adaawk".  And in the  46 transcript at volumes three and four, Mrs. McKenzie  47 has, I think, expressed in very clear terms the 704  1 significance, meaning and power of the adaawk.  And I  2 think it would be appropriate to refer you to two  3 passages in which the -- when examined, she had this  4 to say about the history, the oral history.  She said  5 at volume three, page 188 at line 18, she said:  6  7 A  "The adaawk is, as I worded, history, and  8 it's the happening of how the Gitksan  9 people have their names right from infant  10 to a chief.  The adaawk refers to the  11 songs that are made for the purpose of  12 each chief to use.  The adaawk tells of  13 the Nax Nok, why it was created and how  14 it is shown amongst the people in the  15 Feast House.  The adaawk also tells of  16 the territory of the chief.  Now when we  17 say adaawk, this holds the whole four of  18 the adaawk world."  19  20 And further questioning:  21  22 Q  "Does your House have an adaawk?  23 A  Yes.  24 Q  And does that adaawk or history describe  25 events that occurred before you were  26 born?  27 A  Yes.  28 Q  Does it describe events that occurred  29 before the white man was here?  30 A  Yes.  31 Q  Do you know the adaawk of your House?  I  32 am not asking you to tell it right now, I  33 am asking if you know it?  34 A Will you rephrase that again?  35 Q  Do you Gyolugyet, if I asked you right  36 now to tell your adaawk, could you tell  37 it, do you know what the adaawk is of  38 your House?  39 A  Yes.  40 Q  What I would like you to explain to the  41 court is how you learned the adaawk of  42 your House?  43 A  I learned it through oral history through  4 4 my grandmother.  45 Q  That was Sarah?  46 A  That was Sarah.  47 Q  Wesley? 705  1 A  Yes.  2 Q  How did she teach it to you?  3 A  She taught me when I was about seven  4 years old and they had feastings about  5 it, that I should know the adaawk, the  6 oral, how it's put to me.  Sometimes  7 through over a meal table.  These are how  8 the older people would teach their  9 children, their young children of their  10 House their adaawk, at meal time and  11 before they retire at night.  And it's an  12 everyday thing, not just once in a while,  13 it's an everyday taught.  14 Q  And is there a reason why it was your  15 grandmother who taught you the adaawk?  16 A  Because she was the oldest of the House,  17 of Gyolugyet's House.  And it was her  18 duty to repeat those adaawk to me  19 Q  You described earlier about other events  20 that have occurred before you were born,  21 such as the six sisters who all had boys?  22 A  Yes.  23 Q  How did you learn of that, of those  24 events, who taught you about your history  25 of your family, of the House of  26 Gyolugyet?  27 A  It's through names.  When we are infants,  28 just born, we have a name given to us,  2 9                        and we change our names three or four  30 times before we reach the age of adult.  31 Now, when these change of names, the  32 adaawk goes with the name, this is how  33 the Gitksan people know the adaawk of  34 each name they hold.  35 Q  Are the adaawk, have the adaawk of -- has  36 the adaawk of Gyolugyet been publicly  37 stated at any time in your lifetime, been  38 told at a public event?  39 A  Yes.  4 0 Q  When was that and was the event that it  41 would be told at?  42 A Whenever that is a feasting of names  43 given, this is when the adaawk of  44 Gyolugyet is repeated.  45 Q  And you have attended such feasts?  4 6 A  Yes, I have.  47 Q  Both before and after you have been 706  1 Gyolugyet?  2 A  Yes.  3 Q  And at those feasts are chiefs of other  4 Houses present?  5 A  Yes.  6 Q  Have you been at feasts of other chiefs  7 where their adaawk have been told?  8 A  Yes, I have."  9  10 I'm reading on page 190, just to the middle of the  11 page:  12  13 Q  "And from what your grandmother has told  14 you, do you know if adaawk were told at  15 feasts before you were born?  16 A  Yes.  17 Q  Can you tell the court why the adaawk are  18 told at feasts?  You have explained it  19 happens when names are given, I  20 understand that, but why is that  21 important to tell the adaawk?  22 A  Because the adaawk tells, in a Feast  23 House, that who are the holders of  24 fishing places, creeks and mountains that  25 belong to each House of the chiefs, where  26 they get food, like berry picking, they  27 have -- they tell the owner and the  28 location in a Feast House.  So, through  29 this -- this is how I have my knowledge  30 now is by attending the feastings of any  31 chief, even if it's my own feasting, I  32 hear the chiefs repeat or tell the adaawk  33 of theirs and ours.  This is the  34 importance of the feasting, that these  35 adaawks are told.  36 Q  How accurate are the adaawk of -- is the  37 adaawk of your House, in other words, how  38 close to the truth of those histories?  39 A  In Gitksan law —"  40  41 Her answer was:  42  43 A  "In Gitksan law all adaawks are true."  44  45 And then there was an an objection by Mr. Goldie and  46 an intervention by the court.  47 THE COURT:  Where did you start reading, Mr. Rush? 707  1 MR. RUSH:  At line 23 on page 190.  2 THE COURT:  Okay.  3 MR. RUSH:  Now My Lord, a similar -- similar testimony was given  4 by Mrs. McKenzie in volume four of the transcript, and  5 that begins at page 235, and that is at line 36 --  6 actually 38.  7  8 Q  "I asked whether the adaawk refers to  9 other chiefs of the Wolf Clan who moved  10 from Kuldo'o to Kispiox?  And then you  11 can just proceed with that, the history  12 of that movement from Kuldo'o to Kispiox.  13 A  Like I said, that every House of a chief  14 has their own adaawk.  Now what I am  15 expressing now is the adaawk of how  16 Suuwiigos lived in Gitangasx, how we  17 fought these battles, that's the adaawk,  18 and how the movement of the other chiefs,  19 when Kuldo'o was founded.  This is in the  2 0 adaawk.  Without saying how the movement  21 of the people, it has to go down in an  22 adaawk, it's not just a story.  Adaawk in  23 Gitksan language is a powerful word of  24 describing what the House stands for,  25 what the chief stands for, what the  26 authorities --  27  28 Excuse me,  29  30 "-- what the territory stands for is the  31 adaawk.  It's not a story, it's just how  32 people travelled is the adaawk.  And it's  33 the most important thing in Gitksan is to  34 have an adaawk.  Without adaawk you can't  35 very well say you are a chief or you own  36 a territory.  Without the adaawk, it has  37 to come first, the adaawk, names come  38 after, songs come after, crests come  39 after it and the territory that's held,  40 fishing places, all those come into one  41 and that's the adaawk."  42  43 Now My Lord, that ends at 236 line 12, and there  44 is another passage on the same page beginning line 32  45 and running to the end of the page.  It is similar  46 evidence to the evidence I've just recited to you.  47 Similarly, My Lord, on page 237, beginning line 70S  1 37 running to line 9, and again I don't intend to read  2 that, it is in the similar vein as the passages I've  3 just recited to you.  4 MR. GOLDIE:  Excuse me, was that page 237?  5 MR. RUSH:  That's correct.  6 MR. GOLDIE:  Thank you.  7 THE COURT:  Well Mr. Rush, if it's of any assistance to you,  8 subject to what your friends say, I don't have any  9 trouble with the proposition that the adaawk or the  10 oral history of the various houses is admissible.  My  11 problem is to define what is the adaawk.  Up to now we  12 have been proceeding on the basis that if the witness  13 says it's part of the adaawk then it's taken to be  14 part of the adaawk, ands that's an open-ended  15 principle of admissibility almost unknown to our law.  16 And that's the difficulty I'm having.  I've heard  17 evidence of what I would describe, and I don't say  18 this pejoratively in any sense, but the closest thing  19 that comes to my mind is mythology.  And if the  20 witness says it's part of the adaawk, am I bound by  21 that?  22 MR. RUSH:  Well, the witness has described two types of oral  23 statements, one is the oral history if we can use that  24 general term, and that's described as the adaawk.  And  25 then there are oral statements which are more akin to  26 stories.  27 THE COURT:  Yes.  And Mrs. McKenzie drew that distinction.  28 MR. RUSH:  Drew the distinction.  And given that distinction,  29 the stories, in my submission, say something of the  30 way of life.  If Your Lordship is satisfied about  31 admitting the oral histories, I think you should be  32 equally satisfied about admitting evidence of the  33 stories that express principles of the way of life,  34 the spiritual values of the people, and something to  35 say about why -- why the people of the community are  36 morally bound, if you will, to comply with certain of  37 the laws and principles of the society.  And I think  38 that of the -- for example, the law relating to  39 puberty, and the puberty taboos that you heard  40 yesterday.  In my submission, these -- these would  41 sometimes fall into the category of a story, and I  42 think you heard that yesterday from Mary Johnson, and  43 you should hear that evidence on the basis that it  44 says something of the -- of the way of life, the  45 principles and the social organization of the people.  46 THE COURT:  But how does it assist in the determination of the  47 subject issues in the case, which really relate to a 709  1 claim to an interest in land?  2 MR. RUSH:  Well more than that, My Lord.  It — the — I think  3 there are two primary foci, if I can put it that way,  4 to the statement of claim.  One is a claim to an  5 interest in the land, claim to title of the land as  6 characterized as ownership of the territory.  7 THE COURT:  Interest to include all possible manifestations of  8 that?  9 MR. RUSH:  Yes.  But the other aspect of it is the question of  10 authority or jurisdiction in respect of that land.  11 And to -- to make our case, it's my submission that we  12 must demonstrate to you common laws which apply for  13 all Gitksan and Wet'suwet'en people in respect of that  14 territory.  15 THE COURT:  Using your example, how do the puberty taboos of  16 Mrs. Johnson's House -- and I'm not sure whether she  17 was tending to extend that to the whole of the Gitksan  18 or just to the -- to her House, and I'll come to that  19 in due course, I'm sure.  But how does -- how does  20 that evidence assist in any way in the determination  21 of the -- either the title or the jurisdiction or the  22 land owning interest that are claimed?  23 MR. RUSH:  Well I think it demonstrates that there is an  24 organized society that is governed by specific rules  25 and laws.  And while we are talking there in that case  26 a law with regard to social activity and the way a  27 young person is brought up and brought through into  28 the teenage years, that is but one example.  But there  29 is a range of examples which deals with the laws  30 relating to territorial acquisition, crest  31 acquisition, rules and laws relating to trespass, and  32 the like.  And it's my submission that you must hear a  33 range of the types of laws which show that this  34 society is organized in the sense that it was  35 contemplated by Mr. Justice Judson on Calder, and that  36 it is an organized society with a set body of rules  37 that govern activity, day-to-day life, everyday life  38 in that society.  And I think, to satisfy Your  39 Lordship that this is not something of -- that is of  40 recent creation, we must delve into the ways in which  41 these laws appeared in the histories and the  42 traditions and in the stories of the Gitksan people.  43 And I think what you've seen, in the telling of the  44 adaawk, the histories that you have, and the stories  45 that you have, and I'm -- my submission, My Lord,  46 you've only heard one or two stories as such, that  47 most of the evidence has been directed very 710  1 specifically at the oral history, if you will, that  2 comes into the first category of Your Lordship's  3 concern.  And I think you must hear that range of  4 evidence to have the sense of the legal traditions  5 which permeate the entirety of the Gitksan society.  6 THE COURT:  Well let me ask you whether there is any proper  7 distinction to be drawn between the evidence of Mrs.  8 McKenzie that the band settled -- I won't say  9 originally, but within her historical knowledge, at  10 Gitangasx and then moved to Kuldo and then moved to  11 Kispiox, that kind of history as opposed to the  12 mythology evidence, is there any proper distinction to  13 be drawn between those two types of evidence when  14 considering the admissibility of the adaawk or any  15 part of it?  16 MR. RUSH:  Not in terms of considering admissibility.  I think  17 there is in terms of what you take from the evidence  18 in the end of the day, because as Mrs. McKenzie has  19 said, the adaawk are the history of the Gitksan, she  20 does not make the same claim in respect of the stories  21 or how --  22 THE COURT:  No, I think she did, with respect, at least I took  23 it she did.  When she was asked to give the adaawk,  24 she started talking about Suuwiigos and the -- and the  25 supernatural parts of this history which I classify as  26 mythology.  Now, I don't want to be unfair in using  27 that word, but for purposes of illustration --  28 MR. RUSH:  Well it's very clear, My Lord, that Mrs. McKenzie did  29 not classify that as mythology.  The -- despite the  30 relationship of the animal world and the spiritual  31 world with human activity that comes through in that  32 migration, that was a historical event that moved  33 through a time period that related to specific  34 villages and activities.  Now, when I -- I'm trying to  35 place -- draw to my mind what would classify as a  36 story, and she had a specific word for it, and it was  37 not -- it was not of the kind of history that Your  38 Lordship has just referred to, that despite the  39 spiritual aspects of that story, it was very much an  40 oral history.  And that, I say, is very much what  41 should be admitted under the exception to the hearsay  42 rule, broadly stated on the reputation and public  43 testing principles that are set out in Milirrpum.  44 Now in my submission, it really matters little as  45 between the story, if you will, and the oral history,  46 because in the end, so long as it complies with the  47 other common law tests of admissibility set out in 711  1 Milirrpum, in my submission, they are admissible under  2 that exception.  And I have -- I have something to say  3 about more recent questions and how new events come  4 into the history.  And if Your Lordship is satisfied  5 that the principles in Milir -- Milirrpum, if you are  6 satisfied that the link that is drawn between the  7 admissibility of oral history in aboriginal title  8 cases, in that case, and the general law relating to  9 hearsay, then it's my submission both categories of  10 the oral history, or at least the oral tradition, the  11 oral history of the adaawk and the stories are  12 admissible under the principles of that case.  13 What I feel the Canadian cases direct Your  14 Lordship to, is the principle -- is the application of  15 the Milirrpum case in a wider context than in fact it  16 is contemplated, that there is a more relaxed rule  17 with regard to the application of those principles in  18 aboriginal title cases.  And I'm happy to go through  19 that with Your Lordship if there is -- if you have  20 concerns about that.  But it is my submission that the  21 courts in Canada have very much relaxed the standards  22 of proof in dealing with Indian oral evidence, and the  23 necessity for doing so, and accepting such evidence is  24 related to the existence of an oral tradition in  25 Indian societies.  And if I can just pause here, My  26 Lord, I think it's clear from Mrs. McKenzie's  27 testimony, that that oral tradition has the two  28 components that we have discussed already.  29 The result of this, in my submission, is that the  30 evidence of the -- of informants need not only come  31 from deceased persons, nor relate to events of great  32 antiquity.  And it's our submission that hearsay  33 exceptions should not be limited to events where there  34 is no direct living knowledge.  35 Now My Lord, the starting point for this if I  36 may, is the Simon case, the Supreme Court of Canada  37 decision, which in that case considered what evidence  38 is necessary to consider whether the appellant in that  39 case was entitled by descent benefit of the treaty,  40 and this is to be found at tab 4 of the book of  41 authorities that you have there.  And in particular  42 it's, the passage I want to refer Your Lordship to is  43 found at page 406 to 407.  And the Supreme Court here  44 had this to say, bottom of 406.  The question was, "Is  45 the appellant an Indian covered by the treaty?"  I'll  46 just read this passage:  47 712  1 "The respondent argues that the appellant  2 has not shown that he is a direct descendant of a  3 member of the original Micmac Indian Band covered  4 by the Treaty of 1752.  The trial judge assumed  5 that the appellant was a direct descendant of the  6 Micmac Indians, parties to the treaty.  The Nova  7 Scotia Supreme Court, Appellate Division, on the  8 other hand, relied on the decision of the New  9 Brunswick Court of Appeal in R vs. Simon, and held  10 that the appellant had not established any  11 connection by "descent or otherwise" with the  12 original group of Micmac Indians inhabiting the  13 eastern part of Nova Scotia in the Shubenacadie  14 area.  15 With respect, I do not agree with the  16 Appellate Division on this point.  In my view, the  17 appellant has established a sufficient connection  18 with the Indian band, signatories to the Treaty of  19 1752.  As noted earlier, this treaty was signed by  20 Major Jean Baptiste Cope, Chief of the Shubenacadie  21 Micmac tribe, and three other members and delegates  22 of the tribe.  The Dick Micmac signatories were  23 described as inhabiting the eastern coast of Nova  24 Scotia.  The appellant admitted at trial that he  25 was a registered Indian under the Indian Act, and  26 was an "adult member of the Shubenacadie - Indian  27 Brook Band of the Micmac Indians and was a member  28 of the Shubenacadie Band Number 02".  The appellant  29 is, therefore, a Shubenacadie - Micmac Indian,  30 living in the same area as the original Micmac  31 Indian tribe, party to the Treaty of 1752."  32  33 Now the relevant passage comes:  34  35 This evidence alone, in my view, is  36 sufficient to prove the appellant's connection to  37 the tribe originally covered by the treaty.  True,  38 this evidence is not conclusive proof that the  39 appellant is a direct descendant of the Micmac  40 Indians covered by the Treaty of 1752.  It must,  41 however, be sufficient, for otherwise no Micmac  42 Indian would be able to establish descendancy.  The  43 Micmacs did not keep written records.  Micmac  44 traditions are largely oral in nature.  To impose  45 an impossible burden of proof would, in effect,  46 render nugatory any right to hunt that a  47 present-day Shubenacadie Micmac Indian would 713  1 otherwise be entitled to invoke based on this  2 treaty."  3  4 Now My Lord, I think there is a similar view of  5 the reception of oral testimony found in the Bear  6 Island case in the judgment of Mr. Justice Steele, of  7 the Ontario Supreme Court, and that's to be found at  8 tab 5.  And I want to refer you to page 26, it's the  9 second page along.  He is here dealing with  10 evidentiary issues and what he says in this passage at  11 the middle of the page is this:  12  13 "Indian oral history is admissible in  14 aboriginal land claim cases where their history was  15 never recorded in writing.  However, this does not  16 detract from the basic principle that the court  17 should always be given the best evidence.  The  18 court has an obligation, first, to weigh the  19 evidence and consider what evidence is the best  20 evidence and, second, if such best evidence is not  21 introduced, to consider making an adverse finding  22 against the person who has failed to produce it."  23  24 Now, the other passage I want to refer you to is  25 to -- is at page 32, and here Mr. Justice Steele went  26 on to find that it was not a condition of the  27 admissibility of evidence of the oral tradition that  28 the informants of the Indian witnesses be dead.  And I  29 ask you to look at the second full paragraph on page  30 31:  31  32 "If a white person, or non-Indian, gives  33 evidence as to oral tradition, this testimony is  34 admissible generally only where the declarants are  35 dead.  In the present case, Mr. Conway, Mr.  36 Morrison and Mr. Macdonald gave evidence as to what  37 they had been told by Indians.  In many cases, the  38 supplier of such information is still alive and in  39 other cases is not identified.  This must be borne  40 in mind in determining the credibility and weight  41 of the evidence.  I make this comment  42 notwithstanding that to a degree all three of these  43 gentlemen are experts in their own particular  44 fields."  45  46 And at the bottem of page 32:  47 714  1 "I am not so concerned about the  2 credibility and weight to be given to the expert  3 testimony of persons such as Dr. Rogers or Dr.  4 Nichols, who are acknowledged experts in their  5 general fields.  Dr. Rogers is an ethnologist and  6 any opinions that he may formulate based on  7 information received from living Indians as to  8 their oral traditions are admissible in court.  9 Unfortunately, in the present case he had made no  10 study of the Temagami Indians."  11  12 And he went on to find that was not his particular  13 area of concern.  14 THE COURT:  Of course does that passage not compare to the type  15 of evidence which is habitually received from a person  16 such as an appraiser, regarding the value of land?  He  17 goes out and talks to all the people that have made  18 purchases or sales comparable to the subject property,  19 or he just consults the Land Registry records and he  20 is allowed to give a synopsis because of his expertise  21 or his assumed expertise in assessing what is relevant  22 and what isn't.  Isn't that what Mr. Justice Steele is  23 talking about there?  24 MR. RUSH:  Oh yes, I think that's true.  25 THE COURT:  So while it might apply, that passage might apply  26 with great force to your expert witnesses, does it  27 really touch the question we are talking about now?  28 MR. RUSH:  Yes, it does.  And for this reason, that there is a  29 process by which events of an oral history find their  30 way into the history that the Gitksan and Wet'suwet'en  31 people have worked out.  It's a process of telling of  32 the event and retelling of the event, and of  33 witnessing and rewitnessing of the event in a public  34 forum.  And in my submission, given that those tests  35 are the very tests applied in respect of the -- of an  36 exception to the hearsay rule under the reputation  37 principles, where those tests can be applied to the  38 oral history as it moves present in time, in my  39 submission, that is a sufficient basis upon which to  40 evaluate the trustworthiness of the evidence, that is  41 admitted.  42 THE COURT:  I don't know if it's of any interest to you people,  43 but I was talking to the Chief Justice of Ontario the  44 other day and he told me that the Bear Island case is  45 being set for hearing in the Court of Appeal in  46 January, I think, next year.  It's taken a long time  47 but they are finally going to get to it. 715  1 MR. RUSH:  My Lord, my point here is that the evidence of Mrs.  2 McKenzie shows that the oral history of the Gitksan  3 may include major events in the life of a House which  4 are of relatively recent origin.  The fact that the  5 events described are of recent origin does not deprive  6 them of their important place in the history of the  7 House.  Now if I can state, perhaps, a little more  8 articulately, what is critical here is how the event  9 is authenticated as part of that history.  And what  10 you know in the evidence from Mrs. McKenzie and Mrs.  11 Johnson, the event has passed on from one person who  12 has a duty to tell it, and if we can call that person  13 the custodian of transmittal, to another who has a  14 duty to receive it, that is the custodian of receipt.  15 The event is told and received at a public feasting.  16 The witnessing chiefs confirm and validate what was  17 said.  There is a public sifting of rights pertaining  18 to the community as a whole.  The oral history is  19 validated in the process of witnessing by the other  20 chiefs, and if I can put it this way:  The event  21 enters the oral history when it passes through this  22 process of witnessing and validation, having been told  23 and retold in the feasts.  24 And if I can characterize the oral history in  25 this way, My Lord:  The oral history starts at the  26 beginning of collective memory and extends to the  27 present, and it is subject to the process of telling  28 and retelling, witnessing and rewitnessing to assure  29 and ensure its authenticity.  And it's our submission  30 it should not matter what time period the history  31 refers to in order to be valid.  I think where it  32 would be otherwise, the oral history would be frozen  33 into a specific and arbitrary time frame, and it would  34 condemn history to being static in time, and it is  35 not.  I think that is a truism of our being.  It  36 should not be considered to be so, because the history  37 in this case is Indian oral history.  And as I think  38 has been referred to in previous submissions, the oral  39 history is like a growing tree which matures over time  40 with a happening of new events.  And as Mrs. McKenzie  41 said, what is happening here in this courtroom is part  42 of the history of the Gitksan for her House.  43 Now, My Lord, just as the categories of duty in  44 negligence actions are never closed, so the addition  45 of new events to the oral history are not foreclosed  46 by time.  And it's for this reason that we say that  47 the court should not prejudge the oral history of the 716  1 Gitksan chief and Houses as terminating at some or any  2 particular arbitrary moment in time, but rather judge  3 them against the appropriate common law evidentiary  4 standards of necessity.  And here I'm just taking from  5 Phipson and Wigmore and Milirrpum, of necessity and  6 circumstances creating a fair or probable trustworth-  7 iness in the evidence.  And thirdly, facts generally  8 discussed in the community.  9 THE COURT:  Sorry, necessity and of circumstances creating a  10 fair and probable --  11 MR. RUSH:  Probable trustworthiness in the evidence and facts.  12 Thirdly, facts generally discussed in a community.  13 Now My Lord, our submission is that if these  14 tests are met, the evidence of oral history, even of  15 recent events coming from live informants should be  16 admitted.  Now here, obviously, I'm directing your  17 Lordship's concern to the evidence that was led  18 concerning the John Smith Feast.  19 THE COURT:  Yes.  20 MR. RUSH:  And what I say about this evidence, is that I do not  21 now ask you to apply the argument that I've made with  22 regard to the admissibility of oral histories to any  23 specific body of evidence, including the John Smith  24 Feast at this time, because in our submission, you  25 need not decide that question as to the admissibility  26 of that evidence now.  And I say that because in -- in  27 our submission, we don't think we've met the standard  28 of proof with regard to that particular Feast at this  29 time.  But, as the evidence unfolds, as more evidence  30 is available, Your Lordship will be asked to make a  31 judgement on that Feast, as we may well ask you to  32 make judgments in respect of other recent events,  33 depending on whether or not, as we say, they meet the  34 standards as I have set out, and which I think are  35 very much the underlying fundamental principles of the  36 exception to the hearsay rule on the reputation and  37 public exposure principles set out in Milirrpum.  38 Now what our immediate submission is, is this:  39 That Your Lordship accept the evidence of the oral  40 history and, if you will, if Your Lordship divides  41 oral history against stories which are in the oral  42 tradition, that both the oral history and the stories  43 in the oral tradition should be admitted as evidence  44 in the case as coming with -- under the exceptions to  45 the hearsay rule, noted in aboriginal title cases  46 where the evidence falls into the principle set out in  47 Milirrpum that Your Lordship has referred to as -- as 717  1 accepting, as I understand your comments.  And I would  2 just point out that I had intended to go into a  3 lengthy consideration of the Milirrpum case, I don't  4 intend to do that.  It is at tab 2 for your reference,  5 My Lord, and the relevant passages there really begin  6 at page 154.  7 THE COURT:  You haven't reproduced it all, I hope?  8 MR. RUSH:  No, I didn't.  I just took the passages dealing with  9 the admissibility of oral testimony.  It begins at 154  10 and passes through to 159, and I think all of the  11 major arguments are dealt with seriatim in that case  12 by the learned judge.  13 Those are my submissions.  14 THE COURT:  Well before you sit down, Mr. Rush, thank you.  But  15 the -- the problem that I'm having and I'll be very  16 frank about it, is that appellate judges not faced  17 with these problems have tossed off some general  18 pronouncements about the need for evidence, but I  19 don't think they anticipated the problems that they  20 were creating such as I'm facing here, and it seems to  21 me that I can't be slavishly bound, nor by legal  22 principle do I think I am bound by pronouncements made  23 in a wholly different context.  What Mr. -- what the  24 learned Justices of the Supreme Court of Canada said  25 in Calder, for example, were said in the context of a  26 trial that took four days where assumptions were made  27 that permitted that case to be tried, including  28 argument, in four days.  And stare decisis doesn't go  29 so far as to require me to apply those kinds of  30 pronouncements strictly.  It seems to me that I have  31 to find some way through these difficult woods, I have  32 to -- I have to find some way of allowing the  33 plaintiffs to prepare a record for appeal, we all know  34 this case will be appealed, which will -- which will  35 not be embarassed by any lack of evidence at the  36 appellate level.  It seems to me, however, that there  37 have to be some limitations on the -- on the  38 academically, unassailable propositions you have put  39 forward.  What are those limits and how do I deal in a  40 practical sense with a situation such as we have here,  41 where we are not talking about even a nation such as  42 the Nishga in the Calder case, but where you have for  43 your own reasons, which I'm sure have been carefully  44 considered, you've based your case upon not on the  45 nation's claims but on Houses' claims.  And where I  46 have I think it's 54 plaintiffs, I don't think that  47 the authorities can be read to require me to hear viva 71E  1  2  3  4  5  6  7  8 MR.  9 THE  10 MR.  11  12  13  14 THE  15 MR.  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30 THE  31  32 MR.  33  34  35  36  37  38  39  4 0 THE  41 MR.  42  43  44  45  46  47  RUSH:  COURT  RUSH:  COURT  RUSH:  COURT  RUSH:  COURT  RUSH:  voce, the oral tradition of 54 Houses.  Keeping in  mind that Mrs. McKenzie was in the box, I guess, for  about five days, I think, I haven't counted but I  think about five days or six, and if I'm to hear the  oral tradition of 54 Houses, the trial becomes not a  marathon but a siege.  Now what is the answer to that  problem in 25 words or less, please, Mr. Rush?  I had a very lengthy submission on that.  :  Yes, I'm sure you do.  Well my first comment is that Your Lordship is  dealing with really a pragmatic situation and not one  which is a question of the admissibility of certain  principles.  :  Yes, yes.  And it's my view that the principles that we've  advanced here are sound principles for the  admissibility for allowing into evidence the oral  histories of the Gitksan and Wet'suwet'en people.  Now  having said that, it doesn't mean to say, in my  submission, that the oral adaawk in relation to each  and every House must in the end be told by each and  every one of the plaintiff witnesses.  It was never  our intention and it is not our intention to call all  of the plaintiffs.  And the problem of the length of  time that it would take to call the evidence needed to  prove the points -- or to prove the claims in the  statement of claim as being carefully considered by  us, and it is our view that we can prove what needs to  be proved with far fewer than 54 plaintiff witnesses.  :  That's the best news I've heard so far today, Mr.  Rush.  And in my submission, My Lord, you have heard for  example, that there are adaawk or oral histories which  apply to more than one chief.  You might well remember  that Mrs. McKenzie said that -- that the Suuwiigos  oral history in fact was a history that was shared by  at least four other chiefs, and one of those was  Wiigyet and that's the one that comes to mind at the  moment.  :  Yes.  Similarly, the history, if you will, of the dispersal  at T'am Lax amit is a very, if I might say, well known  in terms of the anthropological literature, and  certainly well known within the Gitksan community as  applying to more than one House.  And we will be  asking you to make certain judgments with respect to  the application on some of the oral histories. 719  1 Now, it's my submission that what Your Lordship  2 voices as a difficulty with respect to the length of  3 the trial or the way the evidence will come in, is a  4 pragmatic problem, if I may phrase it that way, that  5 has to be dealt with in terms of the structure of the  6 evidence of the plaintiffs, and the -- if you will,  7 the phrasing of the evidence to give you the picture  8 of all the plaintiffs.  In effect, My Lord, if we --  9 we've taken certain steps to shortcut the necessity of  10 calling 54 plaintiffs.  One is the production of the  11 map similar to this, and there will be evidence from  12 one person that will deal with the territories on this  13 map.  And it's our hope that this evidence will  14 satisfy you as to the territorial boundaries and the  15 ownership of those territories.  But Your Lordship  16 can't do that without the underlying base, which the  17 oral histories, the adaawk, represent as existing  18 within the community.  And I can tell you that it is  19 our hope that we can persuade you that once having  20 heard a number of adaawk, that you will accept that  21 these adaawk are the adaawk of -- of the -- of the  22 chiefs of the community.  And there will be, of  23 course, a different presentation with the presentation  24 of evidence with respect to the Wet'suwet'en people.  25 But it is in this way that, in my submission, the  26 question of the duration of the evidence and the proof  27 of the items that we need to prove to show ownership  28 and authority over territories, must proceed.  2 9 THE COURT:  All right.  Thank you, Mr. Rush.  Mr. Goldie or Mr.  30 Macaulay?  31 MR. GOLDIE:  Thank you.  32 My Lord, I appreciate your Lordship's concern over  33 what you call the pragmatic problem.  I am going to  34 deal with the situation as I see it at the present  35 time, in the full realization that I don't have the  36 concept of the trial that the plaintiff does.  My  37 friend has a plan, and I do not -- I'm not privy to  38 that plan, so when he speaks of what will happen in  39 the future, I'm at a disadvantage in that regard, and  40 I'm going to speak about the situation as it presently  41 stands.  42 I'm going to be submitting that the adaawk cannot  43 be an umbrella.  My friend wishes to have accepted as  44 evidence of the truth of the matters therein stated,  45 anything which can be -- to which the name adaawk can  46 be attached.  I will be suggesting that recent events  47 cannot qualify as oral history in the terms spoken of 720  1 in the cases, and I'll give Your Lordship one obvious  2 example.  Mrs. McKenzie's evidence was that she  3 learned the adaawk of her House from her grandmother  4 starting at the age of seven.  And that adaawk cannot  5 have been the same adaawk that includes the John Smith  6 Feast for very obvious reasons.  Now my friend says  7 that history is not static.  Well, I agree with that.  8 He says it's a growing event.  Your Lordship will  9 appreciate that if that principle is accepted, the  10 adaawk can be reshaped by recent views to support a  11 particular point of view, and thereby, the principle  12 of reliability and trustworthiness is lost.  13 Now that's simply by way of an introduction.  I'm  14 going to speak now of what I consider to be the five  15 examples of hearsay that Your Lordship has so far  16 heard of:  The first is evidence of origin; the second  17 is evidence of territory; the third is simply evidence  18 of what a deceased person said, that is to say direct  19 evidence of what that person said; the fourth is  20 evidence of an event to which there may be living  21 witnesses, and which may well be proved by a more  22 available and more reliable evidence; and the 5th is  23 evidence of spiritual beliefs and happenings.  24 Now going back to the first, evidence of origin.  25 As I understand it, this is in the form of an adaawk  26 of the events of T'am Lax amit in the case of Mrs.  27 Johnson, and in the events which led to the migration  28 to Old Kuldo, and the subsequent migration to Kispiox  29 in the case of Mrs. McKenzie.  30 If I may pause here and point out that my friend  31 says there are two foci to his case, one is aboriginal  32 title, and the other is present-day authority  33 ownership and jurisdiction, and I will be saying that  34 oral history is strictly relevant only to the first.  35 The second is of current status, current beliefs,  36 current actions, things of which direct evidence can  37 be given.  Now to turn back to the -- the evidence of  38 origin.  39 As stated by Mrs. Johnson, the -- the matters  40 which she has described of the dispersal, I am -- I do  41 not understand to be directed to a particular point in  42 the case.  Now when I say I do not understand, I want  43 to put that as an admission of my failure, perhaps, to  44 see the point to which the evidence is directed.  45 Whether T'am Lax amit was destroyed by a supernatural  46 bear or a -- some other animal, is not an issue in the  47 case.  What it is apparently tendered for, is in 721  1 support of a fact to be inferred that it was an  2 organized society, which was -- which existed, was  3 scattered, and then led to the establishment of other  4 communities which are now represented, it is alleged,  5 by the plaintiffs.  6 So the evidence tendered does not appear to be  7 direct evidence of any fact alleged.  It is not direct  8 evidence of the kind admitted in Milirrpum which was  9 "My father, now dead, said this is our land."  It is  10 admissible not for the truth of the matters stated in  11 it, but as proof of her belief, Mrs. Johnson's belief  12 in that matter, and my friends are entitled to draw  13 inferences from that limited aspect of its  14 admissibility.  The -- in other words, it is proof of  15 a belief in an event which occurred a long time ago,  16 and it is -- the fact that may be inferred from that  17 is that there is a community belief to that effect.  18 But if it is admitted as an exception to the hearsay  19 rule, it is admitted as proof of the facts therein  20 stated, and in my submission, that -- it is -- it  21 doesn't meet the Milirrpum test in that regard.  What  22 Milirrpum said is that where there is a concurrence of  23 many voices on a fact which is a direct probative  24 issue, that is to say, "My father said this is our  25 land," and you have the declarant, you have the issues  26 of reliability and trustworthiness being met, that's  27 fine.  All I'm saying here is that the adaawk of the  28 dispersal, the adaawk of the migration of Mrs.  29 McKenzie's House, is not directed to that point.  What  30 it is directed to, and it is admissible for the  31 purpose of proving, is that that belief is held by her  32 and by the members of her House.  So the evidence is  33 admissible, but not for the purposes of the truth of  34 what is therein stated.  35 Now if I may go to evidence of territory.  36 THE COURT:  Just a moment, Mr. Goldie.  37 MR. GOLDIE:  Yes.  38 THE COURT:  If it's only admissible as proof of -- as proof in  39 that limited sense, that is of her belief, and perhaps  40 extrapolating from there, a commonly held belief in  41 the community, for what purpose do you say it is  42 admissible?  43 MR. GOLDIE:  Well, I take it that my friends can argue from  44 that, that there is a belief common to the community  45 of which -- for which she speaks, namely her House.  46 The fact of a common origin is perhaps a point in  47 argument with respect to a like society.  Put another 722  1 way, My Lord, if there was half a dozen points of view  2 as to where one originated, that suggests half a dozen  3 sources have come together in a present-day community.  4 It is arguable that that commonly held belief is  5 therefore of assistance to my friends in respect of  6 their submission that there is a common -- I'm sorry,  7 a single society which has existed for an indetermi-  8 nate but lengthy period of time.  9 THE COURT:  So put it perhaps in another way, perhaps not as  10 eloquently, you are saying that it might be  11 admissible, or it would be admissible to -- on the  12 issue of social organization?  Or do you go that far?  13 MR. GOLDIE:  Yes, that's arguable.  I'm now getting, of course,  14 into questions of weight.  15 THE COURT:  Yes.  16 MR. GOLDIE:  And without getting into those points, I can  17 perceive it's applicability to issues of that kind.  18 THE COURT:  All right, thank you.  19 MR. GOLDIE:  Well I now wanted to go -- that as I see it, and I  20 again emphasize as I see it at this stage, is the  21 evidence of origin that has been tendered.  22 Now, evidence of territory, and her -- I think with  23 respect, My Lord, we have something quite different,  24 and here we get into the question of evidence of  25 reputation which is the -- is the -- what was being  26 sought from Milirrpum and what is being sought in the  27 other case which this is -- this evidence is admitted  28 as proof of the matters therein stated by virtue of  29 being an exception to the hearsay rule.  30 Now the evidence of territory, based on  31 reputation, is so far -- I believe I'm right in saying  32 this, is so far that of Mrs. McKenzie.  And her  33 evidence was at least in part, purported to be of her  34 direct present knowledge.  And I refer to volume seven  35 of the transcript, the 20th of May, page 414, line  36 nine -- well actually it begins at -- yes, line nine  37 is all right:  38  39 Q  "Mrs. McKenzie, you don't have to make  40 reference to the map itself, but if you  41 could refer to some of the geographic  42 locations on your territory and  43 particularly some of the creeks' names?"  44  45 And she goes on to give the names of certain creeks.  46 And in line 39:  47 723  1 A  "These are the creeks that I'm familiar  2 with that's on the territory.  3 Q  And do these creeks, are they all within  4 your territory?  5 A  Yes, they're all in our territory.  6 Q  And can you describe any mountains or  7 other place, geographic place names, on  8 your territory?"  9  10 And she gives one.  11  12 Q  "Now, what is that, is that a mountain or  13 a --  14 A  It's a place at the point there.  15 Q  It's within the territory?  16 A  Yes, within the territory.  17 THE COURT:  But is it a mountain?  18 THE WITNESS:  No."  19  2 0 And so on down to line 2 6 on page 415.  After naming  21 those, she said -- the question was put to her:  22  23 Q  "Is there any other place?  24 A  That's all."  25  26 And the cross-examination, she never did state  27 directly the reputation that she was relying upon in  28 relation to those particular places, and I want to  29 refer to the transcript of the 25th of May, volume  30 nine.  31 THE COURT:  Sorry, the reference again.  32 MR. GOLDIE:  It's volume nine, My Lord, at page 530, line 26 to  33 line 41:  34  35 Q  "Does the adaawk of Gyolugyet describe  36 the location of Gyolugyet's territory  37 when Gyolugyet lived at Gitangasx?  38 A When they were in Gitangasx, I would say  39 they have.  40 Q  What does the adaawk say about the  41 location of the territory at Gitangasx?  42 A  The story of adaawk I hear, is when the  43 people move -- lived in Kuldo.  44 Q  So you don't know what the adaawk says  45 about the territory of Gyolugyet at  46 Gitangasx; is that correct?  47 A  Yes.  Because Gitangasx is no longer a 724  1 village.  2 Q  But you were told about Gitangasx by your  3 grandmother?  4 A  Yes.  There had been a village at  5 Gitangasx.  6 Q  Did she tell you about the territory of  7 the chiefs who went there?  8 A  No, no.  9 Q  That's not part of the adaawk?  10 A  No.  11 Q  What about at Kuldo, is the territory of  12 Gyolugyet part of the adaawk of the time  13 at Kuldo?  14 A  Yes.  15 Q  And what does the adaawk say about that,  16 about that territory at that time?  17 A Well, the adaawk goes what Suuwiigos, the  18 warrior, did, how he formed the Kuldo  19 village, and all the three clans and who  20 had moved down there, like from  21 Gitangasx."  22  23 Now Your Lordship will appreciate that that goes to  24 what I call origin.  And then the question is asked:  25  26 Q  "Does the adaawk talk about the territory  27 that Suuwiigos and the House of Gyolugyet  2 8 had when they were at Kuldo?  29 A  Yes.  30 Q  What does it say about that?  31 A Well, it does say what houses they had  32 built at Kuldo and the territory that  33 goes with adaawk.  34 Q  What does the adaawk say about the  35 territory of Gyolugyet?  36 A Well, it just says where the territory  37 is.  38 Q  What does it say about where the  39 territory is?  40 A Well it tells the directions of where it  41 is, somewhere in the north-west of Kuldo.  42 Q  Does it say anything more than that about  43 the location of the territory?  44 A  I just can't describe to you right now,  45 because it involves a lot of names and a  46 lot of the different places in the  47 territory.  But in this Feasting, people 725  1 have the feeling that they could mention  2 these places, these names, and these  3 territories and what other chiefs and  4 their Houses, what territory they have.  5 It's easily explained in the Feasting  6 House, and it's open and I have a lot to  7 say.  But the feeling of the people here  8 other than Gitksan don't have the very  9 inner feeling of what they -- Gitksan  10                        people have in their minds --"  11  12 And so on, and I think my friend referred to that.  13 But then -- and so Your Lordship will see that she  14 didn't say what the reputation was, but then my -- she  15 was asked this question:  16  17 Q  "When your grandmother told you the  18 adaawk when she was still alive, did she  19 describe the territory that Gyolugyet had  20 at Kuldo?  21 A  Yes.  She mentioned them by the creeks  22 and the mountains.  23 Q  And are those the creeks and the  24 mountains that you told us about a few  25 days ago in your evidence?  2 6                     A  Yes."  27  28 Now that is very close to Milirrpum, "My father  29 told me this is the land of my ancestors."  So the  30 direct evidence is that of her grandmother, it is not  31 the adaawk as such.  It is admissible under Milirrpum  32 but it is in my submission, got nothing to do with the  33 general proposition that anything to which the name of  34 adaawk is attached is admissible.  35 Now the next category -- well perhaps I can put  36 it this way, My Lord, that my present view and my  37 present submission is that each piece of evidence has  38 to be tested on its own ground, and it becomes  39 admissible or not according to the Milirrpum tests.  40 The next category is evidence of what living  41 witnesses have said, and I take as an example in  42 volume seven, Mrs. McKenzie's evidence, page 420, line  43 41, and the witness is talking about her husband who  44 was still alive.  Line 42:  45  46 MR. GRANT:  "Could you describe for the court  47 what happened when Ben went on the 726  1 territory?  2 MR. PLANT:  Excuse me for interrupting.  I'm not  3 clear if this is part of the adaawk or if  4 it is just pure hearsay.  5 MR. GRANT:  This is evidence -- more recent  6 evidence of the use of the territory.  7 THE COURT:  Well, I see no harm in her saying,  8 as she has, that in 1947 apparently  9 alone, or possibly not, in 1948 with  10 George Holland he went out trapping.  But  11 what happened while he was there and  12 certain details surely is detail that  13 can't be proven by secondary evidence.  14 MR. GRANT:  Well —  15 THE COURT:  Unless it has such notoriety and  16 reputation in the community that it would  17 qualify for some exception to the hearsay  18 rule."  19  20 The point I'm making is that if that is representa-  21 tive of evidence which will be tendered, I cannot see  22 any basis for its admissibility, unless the witness --  23 unless the actor comes forward and gives the evidence.  24 Now, there was another example, and that was --  25 and I'm not going to make a submission with respect to  26 its admissibility because it is already in.  Exhibit  27 11, Mrs. McKenzie stated in her evidence, and Your  28 Lordship directed that she produce it, that she was  29 keeping a book on which she wrote certain things down,  30 and my friend, Mr. Grant, produced copies of the  31 relevant pages from that book.  In it, she recorded  32 what Albert Tait had said to her in 1978 and 1981  33 about her territory.  Now this I don't think it is --  34 has anything to do with an adaawk.  It is simply a  35 statement by somebody who is now dead, about, I  36 assume, a relevant aspect of the case.  37 It, however, is useful, because it illustrates  38 the difficulty of treating the adaawk as an umbrella  39 under which recent events could come in.  At the time  40 of both of those interviews or discussions, I'll put  41 it that way, between the late Albert Tait and Mrs.  42 McKenzie, the -- the land claims issue was very much  43 to the form.  44 I was going to refer Your Lordship to an  45 affidavit of Mr. Sterritt, who was the president of  46 the Tribal Council, that was filed in support of the  47 application of the present plaintiffs to intervene in 727  1 the Meares Island appeal.  Now Mr. Sterritt's  2 affidavit which was sworn on February 1985, that is to  3 say after this action had been commenced, stated that  4 he was the President of the Gitksan-Wet'suwet'en  5 Council, "and as such have personal knowledge," et  6 cetera.  He stated that:  7  8 "The Tribal Council had been incorporated in  9 1978, and I have annexed a copy of the -- "  10  11 He said:  12  13 "The purposes of the Tribal Council include  14 the protection of aboriginal title of the  15 Gitksan-Wet'suwet'en people.  16 (7)   On November 7th, 1977 —"  17  18 That is to say before Mrs. McKenzie's first discussion  19 with the late Mr. Tait,  20  21 "-- the Gitksan and Wet'suwet'en hereditary  22 chiefs presented a declaration of land  23 claims to the Ministry of Indian and  24 Northern Affairs together with the map of  25 the aboriginal territory of the  26 Gitksan-Wet'suwet'en Tribal Council.  Copies  27 of that declaration and map are attached  28 hereto as Exhibits B and C to my affidavit."  29  30 I have attached the declaration and the land claims  31 map of the time, and of course the land claims map  32 then presented to the minister was substantially that  33 which is in issue in this case.  34 And then he says:  35  36 "On or about December 13th, 1977, the  37 Government of Canada accepted on principle  38 our land claim.  Since 1975 I have  39 researched the land claim of the Gitksan  40 Wet'suwet'en hereditary land chiefs and  41 since March 1st I have been involved in  42 working on behalf of the Tribal Council in  43 researching their aboriginal claim."  44  45 Now I mention that, because one of the provisions  46 in the -- when one is talking about the exception to  47 the hearsay rule, is that it should not -- the 728  1 declaration should not be made at a time when the  2 litigation which is before the court was contemplated.  3 And this, I emphasize, is one of the reasons why one  4 cannot deal with the adaawk or the declarations of  5 deceased persons in an umbrella fashion.  6 THE COURT:  But Mr. Goldie, it seems to me that, and I think I'm  7 right, that Mr. Plant put the exhibit in.  8 MR. GOLDIE:  Oh, he did.  It's in.  It's in.  I'm simply — I'm  9 simply using it -- using this as an example.  10 THE COURT:  Of hearsay?  11 MR. GOLDIE:  Yes.  Of why one cannot make any blanket directions  12 with respect to declarations made by deceased persons.  13 THE COURT:  Well as I understand the law, hearsay, however it  14 arises and wherever it comes from is -- is  15 inadmissible to prove the truth of the facts stated  16 unless there is a clear exception.  But that document  17 it seems to me, would at least be evidence of the  18 state of mind of the witness.  19 MR. GOLDIE:  Oh I agree, I agree.  The — but that again is a  20 qualification made --  21 THE COURT:  Yes.  22 MR. GOLDIE:  -- made with respect to the purpose for which it is  23 admitted.  24 THE COURT:  Well I want to make sure I understand the thrust of  25 your submission.  I can see lots of reasons why that  26 document is -- was tendered and why it's admissible.  27 MR. GOLDIE:  I must emphasize again, My Lord, that I'm not  28 suggesting that that document is not evidence today.  2 9 THE COURT:  Yes.  30 MR. GOLDIE:  I'm simply addressing the submission as I  31 understood it from my friend, that in this type of  32 case.  33 THE COURT:  Yes.  Recent?  34 MR. GOLDIE:  Just because it's recent.  35 THE COURT:  I see, yes.  36 MR. GOLDIE:  And I'm saying there are dangers with respect to  37 recent declarations.  My friend referred to the Simon  38 case --  3 9 THE COURT:  Yes.  40 MR. GOLDIE:  -- which is tab 4 in his book of authorities, and  41 that case involved the application of a treaty of  42 friendship to a band of Micmac Indians in New  43 Brunswick.  My friend referred to page 407, and he  44 read these words, I quote, on the first paragraph:  45  46 "The appellant admitted at trial that he was  47 a registered Indian under the Indian Act, and was 729  1 an "adult member of the Shubenacadie - Indian Brook  'adult member of the Shubenacadie - Indian Brook  2 Band of Micmac Indians and was a member of the  3 Shubenacadie Band Number 02."  4  5 His Lordship said:  6  7 "This evidence alone, in my view, is  8 sufficient to prove the appellant's connection to  9 the tribe originally covered by the treaty.  True,  10 this evidence is not conclusive proof that the  11 appellant is a direct descendant of the Micmac  12 Indians covered by the Treaty of 1752.  It must --"  13  14 And I emphasize these words:  15  16 "-- It must, however, be sufficient, for otherwise  17 no Micmac Indian would be able to establish  18 descendancy."  19  20 Now I read that as indicating that His Lordship  21 would not have entertained evidence otherwise  22 inadmissible, and that it was the connection with an  23 Indian band which is presumed to be the successor of  24 the tribe with which it was once connected.  I don't  25 read that case as assisting in the proposition that  26 there is some general relaxation of the laws of  27 evidence.  I think that it is clear that every one  28 here is anxious that a record be created that is not  29 open to criticism in the appellate court, and to the  30 extent that we can do that, we are certainly going to  31 be of whatever assistance we can.  The submissions  32 that I'm making, I do hope, My Lord, will underline  33 the fact that one cannot arrive at a general  34 proposition that the adaawk as such, without further  35 analysis, is generally proof -- nor should the story  36 be admitted -- and I'm now referring to the  37 distinction made by Mrs. McKenzie -- nor should the  38 story be admitted for any purpose other than the  39 witness' knowledge of such a story, if that is  40 relevant.  But where the witness herself says, "Well,  41 one is true according to our beliefs, and the other is  42 a story according to our beliefs," I don't think, with  43 respect, that Your Lordship is entitled to ignore  44 that -- the distinction the witness herself makes.  45 Now I'm not going to make any submission with  46 respect to the John Smith Feast in light of what my  47 friend stated.  Her evidence is again, not proof -- as 730  1 it now stands, is not proof of the matters alleged or  2 stated.  It is so far as it is relevant, proof of her  3 stateof mind.  4 THE COURT:  But her belief that a Feast was held apparently  5 contrary to some existing legislation, it seems to me,  6 is of doubtful relevance.  7 MR. GOLDIE:  Well I haven't made any submissions on relevance,  8 My Lord, and I come back to what I said at the  9 beginning, I can't foresee the full thrust of my  10 friend's case.  11 THE COURT:  I suppose Mr. Rush's answer would be — and Mr. Rush  12 will correct me, of course, if I am -- if I misstate  13 it, that it is part of the living history of the  14 House, and is admissible for that purpose.  15 MR. GOLDIE:  I would say it is presently admissible as evidence  16 of her belief that such an event occurred, but it is  17 not proof that such an event did occur, or if it did  18 occur, that it occurred for the reasons that she had  19 given.  2 0 THE COURT:  All right.  21 MR. GOLDIE:  The last category which I have noted, I'm taking  22 far longer than I intended to, My Lord, is the  23 question of spiritual beliefs and happenings.  And the  24 note I have is that this evidence and the discussion  25 that occurred with respect to that, in the transcript  26 for the 20th of May at page 499 — 399, I beg your  27 pardon, and extending through to page 403, and I'm not  28 going to read anything there, it's fresh in  29 everybody's recollection.  30 THE COURT:  What's it about Mr. Goldie, which event is it?  31 MR. GOLDIE:  Oh, well she gave evidence, and perhaps I should  32 make a quick reference to it.  33 MR. RUSH:  What's the volume number?  34 THE COURT:  May 2 0th.  35 MR. GOLDIE:  She gave evidence of a situation in which she  36 almost lost her sight, or did in fact lose her sight,  37 and the doctor at Hazelton had diagnosed it as  38 measles.  And those who were helping her at home said  39 "No, there are other reasons why you have lost your  40 sight."  They prescribed, if I may use that word, a  41 certain course of action, and she regained her sight.  42 And Mrs. McKenzie testified to that, and testified to  43 other events which indicate beliefs -- I'll put it  44 this way:  In beliefs in the curative powers other  45 than conventional medicine.  46 Now again, I say if it is relevant it is  47 admissible for the purpose of proving that that is her 731  1 belief.  And the fact that she believes that there are  2 some things wrought by powers beyond the ken of man,  3 if I may say so, is a belief that is a very common  4 one, but it is not evidence that the plaintiffs in  5 this case hold such beliefs, or that those beliefs are  6 held by the people they say they represent.  7 Assuming that those experiences are personal --  8 are relevant, then the evidence is admissible.  But  9 again, only as to her beliefs.  The evidence that this  10 may extend to the Gitksan nation, I say with respect,  11 it is not evidence of that, and any such attempt to  12 characterize it as that runs head long into the  13 hearsay rule without any real basis for an exception.  14 I just have one --  15 THE COURT:  Well apart from relevance, Mr. Goldie, why doesn't  16 it qualify as direct evidence of her experiences?  17 MR. GOLDIE:  It does, it does.  There is no issue over that.  If  18 I say I have measles, the doctor -- if I say I have  19 measles, so on and so on and so on, that's direct  20 evidence.  There is no issue over that.  21 THE COURT:  All right.  22 MR. GOLDIE:  If it is tendered for the proposition that the  23 Gitksan nation has a certain belief, then that's where  24 it runs afoul.  25 THE COURT:  All right.  26 MR. GOLDIE:  The difficulty which I have to conclude with, is  27 that I find it -- I find it hard to be of assistance  28 to Your Lordship if there are present rulings  29 required, and I repeat what I said.  If rulings are to  30 be made now, then much of this will have to be  31 objected to, and I believe that much of the evidence  32 that has been tendered is admissible for limited  33 purposes at the present time at any rate.  34 THE COURT:  Thank you.  Mr. Macaulay?  Sorry, Mr. Macaulay,  35 we'll take the morning adjournment now.  36 THE REGISTRAR:  Order in court.  37  38  39  40  41  42  43  44  45  46  47 732  1  2  3 (PROCEEDINGS ADJOURNED AT 11:00 a.m.)  4  5  6 I hereby certify the foregoing to be  7 a true and accurate transcript of the  8 proceedings herein transcribed to the  9 best of my skill and ability.  10  11  12  13  14  15  16 Toni Kerekes,  17 O.R., R.P.R.  18 United Reporting Service Ltd.  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  47 733  1 (PROCEEDINGS RECONVENED PURSUANT TO MORNING RECESS)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Mr. Macaulay?  5 MR. MACAULAY: My Lord, the Attorney General of Canada takes the  6 position that the oral history of the plaintiffs  7 generally is admissible for the truth of the contents  8 where it meets the tests of necessity and reliability  9 or truthfulness, for example, adaawks that have been  10 annealed or tempered by the process of repeated  11 recital in the Feasts and assented to by a  12 considerable part of the community that are interested  13 in the matters that are told in those circumstances.  14 The evidence -- the adaawk concerning the move of  15 the -- Mrs. McKenzie's House from Kuldo to Kispiox may  16 be an example of that.  In the case of statements made  17 by persons either alive or dead, but privately, that  18 haven't been the subject of that tempering or testing  19 process by the frequent retelling in the Feasts,  20 doesn't meet the test of trustworthiness, although it  21 might meet the other test of necessity.  A statement  22 by a head chief to one of his descendants with nothing  23 more doesn't meet that test.  That situation is to be  24 distinguished from the situation in the Milirrpum, the  25 Australian case, where there was a joint communal  26 claim which was evidenced by many people saying "My  27 father told me that this was the land of our clan."  28 Now, I submit also that there is no authority for  29 the proposition that I believe was advanced by Mr.  30 Rush that there's any special rule in the case of  31 aboriginal claims for rights or land or jurisdiction  32 and that none of the authorities referred to by him  33 supports that.  34 Now, recent events concerning which several  35 submissions were made are to be tested by the court in  36 the same way as any other of the -- what's called an  37 adaawk or oral history.  The court must consider if  38 there is better evidence available, for instance,  39 under the general rubric of necessity.  A declarant's  40 interest is to be tested by the court under the rubric  41 of reliability or truthfulness and it doesn't help --  42 and it's not relevant in the administration by the  43 court of the laws of evidence to consider whether  44 somebody says it's part of an adaawk or it's a story  45 or it's something else.  Those are not the touch  46 stones, and are not to be the touch stones under which  47 any particular piece of evidence is considered as to 734  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  4 0 MR  41  42  43  44  45  46  47  THE  COURT  RUSH:  its effect, as to the probative effect that it has.  In that connection, I'd draw Your Lordship's  attention particularly to that portion of Wigmore  which is included in my learned friend's book of  authorities.  It's Tab 18 of the plaintiff's book,  page 557.  It's part of paragraph number 1591.  At the  top of the page the learned author makes this  observation, which I submit is a very sound expression  of the law in that regard.  He says, the limitation  already noticed is obtaining another hearsay  exception; that the reputation, to be admissible, must  have arisen ante litem modum, is well established and  its propriety cannot be doubted.  But that is only a sub-category of the  general rule that the evidence, any evidence that a  party seeks to have admitted under the exceptions to  the hearsay rule, must meet the two tests of  admissibility and reliability.  And of course any  statement made, and I refer particularly to the  statements made by the late Albert Tait to the witness  Mary McKenzie, are statements that are not made ante  litem modum, and those don't meet the test that the  authorities require.  Similarily, notwithstanding the  fact that they may be characterized by one witness or  another as an adaawk.  So that another example is -- I  think my friend Mr. Rush referred to what is happening  in court, here in court, being part of the adaawk.  Well, that is neither -- meets neither of the tests of  necessity since there's better evidence available of  what's happening here, and the witness' evidence may  or may not be, depending on Your Lordship's ultimate  findings, the other test of reliability.  So that  there could be no general ruling now that each  evidence as it comes up has to be considered by the  court in the light of those two fundamental tests and  classified accordingly.  That's my submission, My  Lord.  :  Thank you Mr. Macaulay.  Mr. Rush, do you wish to reply?  Yes, I do.  Let me deal first with Mr. Goldie's  argument, and the last point that he makes regarding  spiritual beliefs.  I think I need only say that the  full implication of Mr. Goldie's argument is that for  the plaintiffs to prove what it is they have claimed  in their Statement of Claim, they would be required to  call every one of the plaintiff witnesses, indeed, it  might be to call every one of the Gitksan people to 735  1 show specific examples of their spiritual beliefs in  2 order to show that is commonly held as the spiritual  3 beliefs of the Gitksan people.  And I'm sure that  4 wasn't the implication that he intended by that  5 argument.  6 Coming to his argument at the beginning, he says  7 first that the adaawk cannot be an umbrella for all  8 kinds, I take it for all kinds of evidence, which  9 would otherwise be considered to be hearsay.  We make  10 no such claim.  The claim that's advanced here as an  11 exception to the hearsay rule is that evidence of oral  12 history, evidence of oral tradition, which meets the  13 test of Milirrpum ought to be admitted as evidence in  14 the case.  The construct of an umbrella is my friends'  15 and it is not ours.  What we say, that it is the  16 evidence should be tested against the Milirrpum  17 principles properly understood.  And those -- the way  18 in which my learned friend constructs those principles  19 I say is somewhat of a misreading of the case.  And I  20 think that this appears from his subsequent arguments.  21 My second or third point is that my friend casts  22 that the adaawk can somehow be reshaped by recent  23 views as an attempt to understand or perhaps state the  24 argument that we advance that events of a more recent  25 nature can and may form, but not necessarily will  26 form, part of the oral history.  That's not the  27 argument, My Lord.  The argument is that recent events  28 may add to the history just as recent events in any  29 national -- any other national context may add to the  30 history of, for example, Great Britain.  31 My next point goes to the question of my learned  32 friend's distinction between, that is Mr. Goldie's  33 distinction, between what constitutes evidence of oral  34 history directed at territory, and evidence directed  35 at jurisdiction.  And I want to make it very clear  36 that the evidence of the Gitksan and Wet'suwet'en  37 people today about their jurisdiction is based on  38 their jurisdiction which is of a historical nature and  39 is deep-rooted in history, and to the extent that the  40 oral history satisfies the Milirrpum principles that  41 that oral history speaks of the jurisdiction and  42 authority of the Gitksan chiefs.  And soon you will  43 hear the Wet'suwet'en chiefs in respect of their  44 territories and the power that they have enjoyed  45 historically as evidenced in these histories to their  46 territories and to the use of those territories and  47 the people that occupy them. 736  1 Now, my friend alluded to the evidence pertaining  2 to the T'am lax amit story and the history that is  3 involved with respect to the retelling of that adaawk.  4 Now, what we say, My Lord, is that the proof of the  5 T'am lax amit history is to show that there are deep  6 historical roots that can be traced by the chief  7 telling the story and the House to which it belongs,  8 to events of the past, to territories that were  9 acquired in the past, to rights to the territory, and  10 the crests of those territories that came out of  11 experiences of the past.  If we can characterize it as  12 a chain of continuity from the past to the present,  13 and that chain is the chain of the oral history.  14 Going next to the point about the proof of  15 territory based on reputation, as my learned friend  16 says, and he pulls from the Milirrpum case the  17 statement "My father said this is my land and that is  18 permissible evidence."  I have a number of things to  19 say about my friend's argument here.  The first is  20 that in the Milirrpum case, this was seen by the court  21 as but with one example of the type of oral history  22 that was contemplated as being admissible in that  23 case.  And if Your Lordship looks at page 153 of the  24 type of oral history that was contemplated in that  25 case, oral testimony that he said -- that -- I'm  26 sorry, it should be 154.  Beginning at the top of the  27 page:  28  29 "In my opinion, the proper approach of the  30 court to the difficult problems of evidence which  31 the case poses is upon the following lines.  32 Neither the novelty of the substantive issues, nor  33 the unusual difficulties associated with the proof  34 of matters of aboriginal law in custom, is any  35 ground for departing from the rules of the law of  36 evidence which the court is bound to apply.  On the  37 other hand, the rules of evidence are not to be  38 applied irrationally, are to be applied rationally,  39 not mechanically.  The application of a rule of  40 evidence to the proof of novel facts in the context  41 of novel issues of substantive law, must in  42 accordance with the true rationale of the rule, not  43 merely in accordance with its past application to  44 analogous facts.  The proposition there is no  45 substantive right or there is no precedent for this  46 fact situation, therefore there is no appropriate  47 rule of evidence, therefore the evidence is 737  1 inadmissible, is unacceptable.  2 I take as a simple example for the purposes  3 of applying these principles a piece of evidence  4 which in slightly varying forms the aboriginal  5 witnesses gave several times and which the  6 defendants contended to be inadmissible.  'My  7 father, who is now dead, said to me this, referring  8 to a particular piece of land, is the land of the  9 Rearat Jingu(ph)'. At this stage I need not go  10 into the various forms in which the statement was  11 put."  12  13 And then he goes into discuss the law as it was set  14 out in Phipson and subsequently in Wigmore.  15 My point, my first point is that the court in that  16 case clearly saw that statement as an example of a  17 much broader type of evidence which was sought to be  18 admitted as oral history.  19 Now, what we are endeavouring to lead in this  20 case, My Lord, is something that reaches far more deep  21 into the history of the Gitksan people than going back  22 to one generation of what a father or a grandmother  23 tells the recipient of the information today, namely  24 the chief that is giving the witnessing testimony.  In  25 our submission, My Lord, our evidence goes to the  26 richness of that ownership.  In our submission you can  27 go much farther back into the generations that have  28 preceded the one generation of information coming from  29 a grandmother.  The people, the Gitksan and  30 Wet'suwet'en people, as I think it is demonstrated by  31 the adaawk which you have already heard, go back many  32 thousands of years and that it is important in our  33 submission to show the very depth of the territorial  34 ownership and the authority which the Gitksan and  35 Wet'suwet'en people lay claim to.  And we are saying  36 in this case, the pleadings I think pose it very  37 sharply, that we are saying that the title goes back  38 generations and generations and that it is in fact the  39 length of ownership which is a key to the claim of  40 ownership that is made today, and that cannot be  41 demonstrated by a simple statement that "My  42 grandmother told me that the land of Gyolugyet is in  43 fact my land."  And I've already made my submissions  44 to Your Lordship with respect to what it is that the  45 adaawk is addressed to and I think it is far more  46 broadly reaching than is cast by my learned friend Mr.  47 Goldie. 73E  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  4 0 THE  41  42  43  4 4 MR.  45  46  47  COURT  RUSH:  So far as the statement of deceased persons and an  example was given, the evidence of Mr. Ben McKenzie --  sorry, not the evidence of Ben McKenzie, but the  evidence of Mr. McKenzie, who's alive, who has given  evidence or given statements to Mrs. Mary McKenzie,  evidence of that kind we don't say ought to be  admitted as some exception under some other head or  rubric that is found in the authorities, and nor did  Mr. Grant press that point.  And I think if Your  Lordship reviews the transcript on that you will see  that Mr. Grant did not advance with that.  The next point that is made by Mr. Goldie is what  he points out as the dangers of recent declarations,  and like Mr. Goldie we don't dispute that.  But what  we say is that we have suggested to your Lordship what  we think are valid tests of necessity, of the test of  the probability of trustworthiness, and these tests we  say can avoid the very dangers that my learned friend  refers to.  We don't say that to say something is an  adaawk, therefore makes it admissible as an exception  to the hearsay rule.  That's not a self-serving  statement that we seek to advance here, but what we do  say is that if oral history can encompass events of a  more recent origin, then if they satisfy these other  tests, then it is my submission that they ought to be  accepted as oral history for the truth of what is  said.  And perhaps I should leave Your Lordship with this,  that the evidence of the oral history, the evidence of  the adaawk, is led not for the purpose of the beliefs  that are held.  They are led here for the purpose of  the truth of the contents of those histories and that  in my submission they cannot be reduced or demeaned on  the basis of relegating them to the fact that this is  what people today believe in, but rather because of  the very process contemplated in the Milirrpum case we  see that they do have the trustworthiness and the  authenticity of history, once having satisfied the  very tests of authenticity contemplated by that case.  :  Well, do you advance Mrs. Johnson's evidence about  the destruction of the village by a supernatural bear  as proof of the truth of that fact?  That's what you  just said I think.  Well, what I say is that that adaawk will be -- may  be repeated and may be explained in the context of a  scientific event at that time.  What we will endeavour  to do, My Lord, is to put that event in the context of 739  1  2  3  THE  COURT  4  5  6  7  8  9  10  MR.  RUSH:  11  THE  COURT  12  MR.  RUSH:  13  14  15  THE  COURT  16  MR.  RUSH:  17  18  THE  COURT  19  MR.  RUSH:  20  21  22  23  THE  COURT  24  MR.  RUSH:  25  26  27  28  29  30  31  32  33  THE  COURT  34  MR.  RUSH:  35  THE  COURT  36  37  38  MR.  RUSH:  39  40  41  42  THE  COURT  43  44  45  46  MR.  RUSH:  47  a very specific moment in time that we think we can  demonstrate scientifically.  :  But -- yes, but she has said that the belief is that  the village was destroyed by a supernatural bear.  And  I think you said a moment ago, and I want to make sure  I have your submission right, that you were putting  forward the history of the adaawk as proof of the  truth of the facts stated in it.  I think that's what  you said.  Yes.  :  Yes.  Well, again, as I -- what I say is the sifting  process has to bring you to the acceptance, in my  submission, of the truthfulness --  :  Yes.  -- of the adaawk or the oral history as you've heard  it.  Now, whether it was a supernatural bear --  :  Yes.  -- or whether it was a bear with unusual powers, a  large bear, what has been -- what has been brought  forward to the present time is the cast of a  supernatural bear.  :  Yes.  It doesn't mean that the event, wherein the  supernatural bear or the bear with extraordinary  powers is located, didn't happen.  And it's my  submission, My Lord, that to say that there was a  supernatural or an intertwined, interrelated aspect of  the supernaturality, if you will, of the bear with the  natural element, the bear itself, to say that that  occurred, in no way lessens the fact that the event  occurred, and that in my submission --  : You mean the destruction of the village?  That's right.  :  Well, I have no difficulty with that.  I have  difficulty with, I think, the way you put the  proposition which may -- may be entirely semantically.  Well, what I say, My Lord, is that I think it is  clear from the evidence that you've heard that the  spirit world, the animal world and the human world in  many aspects of history are interrelated.  :  I have no difficulty with that at all.  I don't  think I have much difficulty with that proposition,  but I have a little trouble just by one statement you  made.  Now, so far as my friend's Mr. Macaulay's comments  go, he made reference to the late Albert Tait's 740  1  2  3  4  5  6  7  8  9  10  11 THE  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34 THE  35  36 CROS^  37  38  39  40  41  42  43  4 4 MR.  45  46  47 THE  evidence as found in Exhibit 11.  And I need only say  this, that I think it was the evidence of Mrs.  McKenzie that in 1978 that the litigation wasn't  contemplated, this litigation wasn't contemplated.  I  don't know that she said that in respect of the 1983  entry.  What we -- so far as I'm aware of the -- in  the evidence she made no claim in the  cross-examination conducted by Mr. Plant that this  evidence was an adaawk.  And it certainly wasn't  proffered by the plaintiffs for that purpose.  COURT:  All right.  Thank you, gentlemen.  I'm not going to  make any ruling now.  I may try to come to grips with  some of this over the course of next week or I may  allow the matter to continue for the sifting process  that Mr. Rush described.  I have two serious problems.  I have the black letter law to deal with and I have  the practical pragmatic problem to deal with, and I  have as my overriding objective to ensure that a  proper record is created for the proper determination  of these issues.  Counsels' submission have been very  helpful and I'll continue to struggle with it.  I  think for the moment we should continue.  I think that  I have an over-arching jurisdiction to hear evidence  and to reject it subsequently, if I conclude that it's  not admissible, whether or not an objection has been  taken, but I think in effect some objections have been  made which can be elevated to the status of blanket  objections to inadmissible evidence, and I'm going to  assume for the moment that there is an objection to  any -- to the admissibility of any evidence that  doesn't stand muster, and I'll deal with that as best  I can whenever it's possible so to do.  All right.  Shall we proceed with Mrs. Johnson?  REGISTRAR:  Witness, I remind you you're still under oath.  -EXAMINATION  Q  CONT. BY MR.  A  GRANT  COURT  GRANT:  Yes, My Lord I just -- I intend to go back to conclude  on two points I had raised yesterday.  The first point  is -- just a moment, My Lord.  I have a photograph, an enlarged photograph, that I  wish to show to you and ask if you recognize that  picture?  Yes.  I'd ask that -- this picture is Exhibit 1 for  identification in the commission evidence of Martha  Brown.  It's not an enlargement of something in Exhibit 17? 741  1 MR. GRANT:  No, it isn't, My Lord, it's another photograph.  I'd  2 ask that it be marked as the next exhibit.  I wish to  3 refer the witness to it.  4 THE COURT:  There being no objection, I see no reason why it  5 shouldn't be an exhibit.  6 THE REGISTRAR:  Eighteen.  7 THE COURT:  Eighteen.  Thank you.  9  10  11  12 MR.  13  14  15  16  17  18  19  20  21  22 THE  23  2 4 MR.  25  2 6 THE  2 7 MR.  2 8 THE  2 9 MR.  30  31  32  33  34  35  36  37  38  39  40  41  42 MR.  43 THE  4 4 MR.  45  46  47  (EXHIBIT IE  KISPIOX)  ENLARGED PHOTO OF HOUSES AND POLES OF  GRANT:  And while that is being marked, My Lord, my learned  friends asked about the dates on the photo which are  in Exhibit 17 and I want to advise that, with  confirmation with the Public Archives of Canada, that  they have no definite dates for any of these  photographs and can only make guesses, but they are in  the 1900, 1920 era is what they are guessing, so it  appears that the evidence of this witness as to what  she has seen as a child is probably the best evidence  of the dates of the photographs that there is.  COURT:  All right.  What is Exhibit 18, an enlarged  photograph of what, please?  GRANT:  Okay.  It's an enlarged photograph of houses and  poles.  COURT:  At Kispiox?  GRANT:  Yes.  COURT:  Thank you.  GRANT:  Q   You recognize the houses in this photograph and you  have seen them?  A   Yes.  Q   Now, what I would like you to do, there is -- on the  right-hand side of this photograph there is just the  corner of a house?  A   Yes.  Q   And starting with that one, if you can just point to  the houses going from the right-hand side as you face  Exhibit 18 down, if you could just indicate to the  court whose houses those were?  A   The first one with just the corner is Haaxw's house.  GRANT:  Which number is that?  TRANSLATOR: Twenty-seven.  GRANT:  Q   Twenty-seven on the plaintiff's list.  Yes, go ahead?  A  And the next one is both Hawaaw and Doga ges'. 742  1 THE TRANSLATOR: Number 30 is Hawaaw.  2 THE COURT:  Sorry?  3 THE TRANSLATOR: Number 30 is Hawaaw.  4 THE COURT:  She gave two names.  5 MR. GRANT:  Thirty is Hawaaw, and Doga ges?  6 THE TRANSLATOR: It's not on here.  7 MR. GRANT:  8 Q   D-o-g-e-g-e-s.  9 And the third house?  10 A   That's Gwii yeehl's house.  11 THE TRANSLATOR: Number 19.  12 MR. GRANT:  13 Q   Number 19, My Lord.  14 The fourth house?  15 A   That's Kliiyem lax haa's house.  16 Q   And does that -- it appears to have a hole, did  17 Kliiyem lax haa's house have a hole above the door?  18 A   Yes.  Yeah.  And that is why they call Kliiyem lax  19 haa's house Wil 'na k'ak.  20 MR. GRANT:  Okay.  Could you give the number for Kliiyem lax  21 haa?  22 THE TRANSLATOR: Thirty-five.  23 MR. GRANT:  And the spelling of Wil 'na k'ak?  24 THE TRANSLATOR: Wil 'na k'ak, W-i-1 —  25 THE COURT: This is 35?  26 THE TRANSLATOR: Yes, Kliiyem lax haa.  W-i-1 n-a-  27 k-'-a-a-k-'(sic).  2 8 MR. GRANT:  29  30 Q   And which house is beside Kliiyem lax haa's?  31 It appears in behind a pole.  You can just see a roof  32 there?  33 A   It's Gutginuxw's house.  34 THE TRANSLATOR: Number 14.  35 MR. GRANT:  36 Q   And next to that?  37 A   Next to Gutginuxw is Gitludahl's -- no, it's Delgam  3 8 Uukw.  39 THE TRANSLATOR: Number 4.  4 0 MR. GRANT:  41 Q   And next to that.  42 A   Then Gitludahl.  43 Q   Okay.  Can you look at the photograph and tell the  44 court if Gitludahl's house is actually there?  45 A   No, it's already torn down, but I know the exact spot  46 and who his neighbours are.  47 MR. GRANT:   So it was there, but at the time of this picture it 743  THE  THE  THE  MR.  9  10  11  12  13  14 THE  15 MR.  16  17  18 THE  19 MR.  20  21  22  23 THE  2 4 MR.  25  26  27  28  29  30  31  32  33  34  35 THE  3 6 MR.  37  38 THE  39 THE  4 0 MR.  41  42 THE  4 3 MR.  4 4 MR.  45  46  47  had been torn down?  COURT: I haven't got a name for the last one, the one we're  talking about.  TRANSLATOR: Gitludahl was number 11.  COURT:  Thank you.  GRANT:  Q   So then the next house -- after the house with what  appears to be the white roof on it is a space, and  that's where Gitludahl's house was; is that right?  A   Yes.  Q   And then the next house that you see in the picture,  which seems to be a white front on it?  A   That's Geel's house.  TRANSLATOR: Number 8.  GRANT:  Q   Okay.  And the one next to that?  A   That's Ma'uus.  TRANSLATOR: Number 48.  GRANT:  Q   And then is there one beyond that that you can see  just the roof?  A   Just the roof is Dawamuxw's house.  TRANSLATOR: Number 3.  GRANT:  Q   Those are all that you can clearly see in the  photograph?  Yes.  Now, do you recall the houses going beyond -- do you  recall the houses going beyond Dawamuxw's house that  were there?  Yes.  Can you tell the court whose they were?  Yeah.  Next to Dawamuxw's, both Dawamuxw's and Niista  huuk' and next to them is --  COURT:  I'm sorry?  GRANT:  Just a second, we need Niista huuk'.  That isn't on  the list.  TRANSLATOR: Niista huuk', N-i-i-s-t-a- h-u-u-k-'.  COURT:  Thank you.  GOLDIE: I'm sorry, My Lord, I didn't catch the last two  letters.  COURT:  H-u-u-k-'.  GOLDIE: H-u-u-k.  Thank you.  GRANT:  Q   And when you refer to Niista huuk', is that the same  house as is Dawamuxw's?  A   Yes.  A  Q  A  Q  A 744  1  2  3  4  5  6  7  8 MR.  9 THE  10 MR.  11  12  13  14  15  16  17  18  19  20  21  22  23  24 THE  25 THE  26  27  28  2 9 THE  3 0 MR.  31  32  33  34 MR.  35  36  37  38  39  40  41  42  43  44  45  46  47  MR.  THE  Q   Okay.  Go on.  And you were saying that next to that  house, which house was there?  A   There were -- they got the same house Dawamuxw and  Niista huuk'.  Q   And do you recall which house was beyond Dawamuxw's  house?  A   That's Xsim gaakhl's house.  GRANT:  Do you have that, Madam Interpreter?  TRANSLATOR: Yes, Xsim gaakhl, X-s-i-m g-a-a-k-h-1.  GRANT:  Q   Thank you.  Go on?  A  And next to -- there's a small little building that  you could see on the picture in the rest of the  picture is late Charles Wesley's building.  He use it  as a store.  Q   And you referred to that yesterday in one of the  photographs in Exhibit 17?  A   Yeah.  And next to this little building is another new  house, Feast House, that belongs to both Tsibasaa and  Antgililbix, so that's the end and -- of the houses.  Then the road turns and this is the corner and it  turns and goes up to a small hill not far from where  these houses are.  There is Wii elaast's house.  TRANSLATOR: Number 72.  WITNESS: And he's — Wii elaast's  gan.  GRANT:  Spell that, please?  TRANSLATOR: G-w-i-1-a-x, underlined, g, underlined,  WITNESS: And next to Wii elaast is Hlo'oxs house.  GRANT:  Q   This is the house of the chief who's now in  Gyologyet's house; is that right?  Yeah.  He's her -- her family.  other chief name is Gwilax  A  GRANT:  Q  A  Q  A  H-l-o-x(sic), My Lord, referred to earlier.  Okay.  Now, going back to Exhibit 18, I'm going to  show you Exhibit 18, and the photograph -- as I say,  the photograph at Tab 3 of Exhibit 17.  Now, can you  tell by the houses that are standing in Exhibit 18 and  Exhibit 17 which of those is the earlier picture?  Which is older?  Oh, that one.  Yes.  Is this picture more recent, that is, the  picture in Tab 3 than the picture --  Yeah.  This is older because I notice in the other  picture of Gutginuxw's house it's a new building and  it's a two-storey building. 745  1  MR.  GRANT  2  THE  COURT  3  4  5  6  MR.  GRANT  7  Q  8  9  A  10  Q  11  A  12  Q  13  A  14  Q  15  A  16  17  Q  18  A  19  THE  COURT  20  MR.  GRANT  21  THE  COURT  22  MR.  GRANT  23  THE  COURT  24  MR.  GRANT  25  Q  26  27  28  29  A  30  31  THE  TRANS  32  THE  COURT  33  MR.  GRANT  34  Q  35  A  36  37  38  39  40  41  Q  42  43  A  44  45  46  THE  COURT  47  THE  TRANS  :   Now --  :  I'm sorry, Mr. Grant, I'm not -- I thought she gave  us two different answers there as to which one was  oldest.  When you asked her which was the oldest one  she first pointed to 17.  Okay.  In Exhibit 17 is a house of Gutginuxw; is that  right?  Yes.  And it's a newer house --  New.  -- than --  Yeah.  -- than the house of Gutginuxw in Exhibit 18?  Yeah.  Yeah, as you could tell that it -- it's ready  to fell down on that picture.  Referring to Exhibit 18 for the record.  Yeah.  So it's Tab 3 of 17 is more recent than --  Than Exhibit 18.  — than Exhibit 18?  Yes.  Thank you.  Now, I'd just like you to tell the court with  reference to Exhibit 18, if you can make reference to  any of the poles that are there and whose poles they  are, again starting at the right-hand side?  Yes.  The first one is Haaxw's totem pole.  You can  see the frog's on it because they are Frog tribe.  LATOR: That's number 27.  :  Thank you.  Then there's a second  The second one is Hawa  see the tall hat on th  to Hawaaw's family whe  family and that figure  there's another pole s  another of Hawaaw's po  And is that the one th  the top?  Yes, there's an eagle  Hawaaw's crest.  It's  small eagle.  :  And what's the numbe  LATOR: Hawaaw is number  aw's totem pole and you could  e top of the pole.  It was given  n they -- they murdered their  comes from the Nass River and  tanding in front of that, is  le, both Hawaaw and Ska be'k'.  at appears to have an eagle on  on the top of the pole.  That's  called Gwax skiik.  That means a  r of Hawaaw, please?  27 -- oh, no 30. 746  1  MR.  GRANT  2  Q  3  4  5  6  7  8  A  9  Q  10  A  11  MR.  GRANT  12  THE  COURT  13  MR.  GRANT  14  Q  15  A  16  17  THE  COURT  18  19  20  21  MR.  GRANT  22  Q  23  24  A  25  MR.  GRANT  26  THE  TRANS  27  THE  COURT  28  MR.  GRANT  29  Q  30  31  32  A  33  34  Q  35  A  36  THE  COURT  37  THE  TRANS  38  MR.  GRANT  39  Q  40  41  A  42  Q  43  44  A  45  46  47  THE  COURT  And the one you're referring to is this pole which if  one counted from the -- from the right-hand side --  okay.  I just want -- so the court knows, the pole  from the right-hand side of the picture, it would be  the fourth one over if you don't count one that's  almost hidden behind it; is that right?  Yes.  Okay.  Yeah, those are Wii elaast's pole.  Which, the one hidden behind?  The third one?  The one behind --  Oh, no, that's hidden behind is Kliiyem lax haa's  pole.  :  Stop, stop, please.  Mr. Grant, we'll never get this  straight if we don't stay in our numbering.  Can she  tell us whose pole is the third one?  At least I can  see a third one.  Yes.  The third pole from the right, can you tell  whose pole that is?  That's Gwii yeehl's pole.  :   Can you give a number for that?  LATOR: Number 19.  :  Thank you.  Okay.  And then there's one hidden behind the Hawaaw  pole and is that the one you said was Kliiyem lax  haa's?  Yes, that's Kliiyem lax haa's.  You can see the wolf  standing on the top.  That's Git waltxwm gibeew.  That's the name of that wolf on the top?  Yes.  :  All right.  Kliiyem lax haa is what number, please?  LATOR: Thirty-five.  Okay.  Now, you referred on Hawaaw's pole there was  something about a bear or something on the bottom?  Yes.  You can see -- this is the fifth pole from the right,  My Lord.  Yes.  That's -- that's Hawaaw's pole and it's a  half-bear is on the pole.  It's a white grizzly bear  they said.  : Which pole is that, Mr. Grant? 747  1 MR. GRANT:  This is the fifth one from the — the fifth one from  2 the right which -- you know, when I'm counting the one  3 behind it.  4 THE COURT:  Well, isn't that the fourth?  5 MR. GRANT:  There's one hidden behind it that's just sticking up  6 behind.  7 THE COURT: Which one has the bear at its —  8 MR. GRANT:  9 Q   Can you just put an X" on the top of the pole with the  10 bear in a red -- yes, with the bear in red.  Thank  11 you.  12 Now, to the left of that pole there's another pole  13 that is again up to the skyline.  Can you -- whose  14 pole is that?  15 A   That's Gwii yeehl's pole.  16 THE TRANSLATOR: That's number 19.  17 THE COURT:  Sorry?  18 THE TRANSLATOR: Nineteen.  19 THE WITNESS:   They've got an eagle on the top too.  2 0 MR. GRANT:  Now, is it correct that on your pole in Kispiox there  is a -- there are -- is a crest of a whale?  Yeah.  Okay.  And without telling the adaawk, I don't want  you to give an adaawk right now, but is there an  adaawk about how you received the crest of the whale?  Yes.  And is that -- is there a name in your House called  Gwin lax nisims?  Yes.  31 THE TRANSLATOR: Number 13.  32 MR. GRANT:  On the —  33 THE TRANSLATOR: On the names of Mary's House.  34 MR. GRANT:  On the names of Mary's House list it's number 13?  35 THE TRANSLATOR: Yes.  3 6 MR. GRANT:  37 Q   And does the adaawk that tells about the whale, does  38 it also tell about that name, Gwin lax nisims?  39 A   Yes.  40 Q   And is there a Nax nok in your House of saa  41 tsaan?  A   Yes, saa tsaan.  MR. GRANT:   Saa tsaan?  THE TRANSLATOR: Saa tsaan, S-a-t-s-a-n(sic).  42 A   Yes, saa tsaan.  43 MR. GRANT:   Saa tsaan?  44 THE TRANSLATOR: Saa tsaan, S-a-t-s-a-n(sic).  4 5 MR. GRANT:  4 6       Q   And is that adaawk of Gwin lax nisims and the whale  47 refer to the Nax nok of saa tsaan?  21  Q  22  23  A  24  Q  25  26  27  A  28  Q  29  30  A 748  Yes.  Does it take quite a long time to tell that adaawk?  Yes, it's a long adaawk.  I was talking -- asking you yesterday about some of  the laws and you described the laws of the girls who  reach puberty?  Yes.  And Mrs. McKenzie referred to laws about xsiisxw or  settlements.  Are you aware of -- do you know of any  example where settlements were given where there was  an accident?  Yes.  Can you tell the court -- and how -- how do you know  that, who told you about that?  My mother and grandmother, Edith Gawa, told me about a  settlement between the Wolf tribe and the Fireweed  tribe.  Do you know when this occurred approximately?  Yeah.  When?  It happens in Kispiox.  They said that while they  were -- the folks from Glen Vowell were pretending to  attack Kispiox, they pretend to have a war and they  captured one of the chief, his name is George Robinson  one of Richard Morrison's relative. He's from the  house of Ma'uus.  And they capture him and took him  away to Glen Vowell.  So at the next night the people  of Kispiox were preparing to attack Glen Vowell and  take back the one that was captured, and after they  left the ladies decided to go too.  They were just  playing and acting and they get together in one of a  great big house that belongs to late Philip Wilson --  Philip Williams.  Philip Williams is my uncle George  Williams' stepfather, and I didn't see Philip  Williams, and I didn't see Uncle George's mother.  But  that's their house where the ladies get together and  Philip got a lot of guns and he -- he checked each gun  and after he checked to see if there's no -- no  bullets in the gun, that's -- and then he hand it over  to each lady, check every gun, never missed it.  Then  they started out on the ice and as they -- when they  pass Gwin o'op, the junction --  43 THE TRANSLATOR: Seven.  44 MR. GRANT:  Number 7 —  45 THE TRANSLATOR: Uh-huh.  46 MR. GRANT:  -- on the first page of the list provided yesterday?  47 THE TRANSLATOR: Yes.  1  A  2  Q  3  A  4  Q  5  6  7  A  8  Q  9  10  11  12  A  13  Q  14  15  A  16  17  18  Q  19  A  20  Q  21  A  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42 749  1  MR.  GRANT  2  THE  COURT  3  MR.  GRANT  4  5  THE  COURT  6  7  8  MR.  GRANT  9  Q  10  11  12  A  13  14  15  16  17  MR.  GRANT  18  THE  TRANS  19  MR.  GRANT  20  Q  21  A  22  23  24  25  26  27  28  29  30  31  32  Q  33  34  A  35  36  Q  37  A  38  39  40  41  42  43  44  45  46  47  Go ahead.  I'm sorry, what's number 7.  Number 7 on the first page of the list provided  yesterday that's -- she referred to a place Gwin o'op.  :  I'm sorry, I thought -- I took it she was passing a  gun to Olive Johnson, but maybe I'm not following the  evidence.  No, I think you misheard.  She said that they went  past Gwin o'op and this was at a junction of the bulk  of the Kispiox and Skeena Rivers.  Yes.  And not far from Gwin o'op you could see a --  the river is -- just turns and that's where they met a  man and the man comes from the House of both  Dawamuxw's and 'Niista huuk's and his brother is late  William Stevens, that's Laan is his chief name.  :  Is that on the list, or just give the spelling?  LATOR: Laan, L-a-a-n.  Go ahead.  And the ladies pretended to point a gun to him.  They  just say -- they were playing "guxw, guxw, guxw", and  a young lady comes along with them.  She's really  young and she pointed the gun on the side of this man  and the gun went off.  People didn't understand the  reason because the owner of the gun checked every gun  and the man said slowly "You -- you shot me." and then  he flopped down really slow.  And they nearly --  there's an opening on the ice not far and the young  lady nearly run into the ice.  Just -- just the ladies  grab her, she's so frightened of what happened.  You mean there was a hole in the ice on the river  where she ran?  Yes.  Yes.  She nearly run into the hole because she  was so scared of what happened.  What happened next?  So after this happens while the village is putting up  their Feasts and they -- and you seen those great big  houses, and they sent a little boy to spy the house of  the guy that died and -- and this little boy came back  to the house that sent him and said they were singing  a war song.  It's a really fast beat.  That -- that  means they will -- they will strike back, and then  when this little boy told what happened a chief put on  all his -- all his blankets, head dress and everything  and got a rattle and go there.  They went to the house  that was preparing for war and he -- when he come in 1  2  3  THE COURT  4  MR. GRANT  5  Q  6  A  750  he -- he sang his Xsinaahlxw with the rattle in his  hand.  :  We better get a spelling of the song.  Yes.  That's the breath song.  7 THE TRANSLATOR: Xsinaahlxw, X-s-i-n-a-a-h-1-x-w.  8 THE COURT:  Yes.  Thank you.  9 MR. GRANT:  10 A  After the breath song, then he spoke to the chiefs  11 that the man that was shot belongs to. He told them he  12 will -- he will be giving a compensation of hunting  13 ground to them, not all of the hunting ground because  14 they got a lot of territory, and they could give  15 just -- just little bit of the territory.  So  16 everything is settled.  The reason I want to tell it  17 is just for an example even if it's an accident among  18 the Indians they still give what we call xsiisxw.  19 MR. GRANT:  Spell that, please?  20 THE TRANSLATOR: Xsiisxw, X-s-i-i-s-x-w.  21 MR. GRANT:  22 Q   And were goods given from the family of the girl to  23 the -- or from the House -- the chief of the House of  24 the girl to the chief of the other house.  25 A   He already gave the land, the hunting ground after the  26 breath song so xsiisxw means compensation.  27 Q   Mrs. Johnson, I'd like to ask you a few questions now  28 about the selection of chiefs among the Gitksan.  Can  29 you tell the court how -- for example, what you and  30 your brother Tsibasaa will look in -- look to in a  31 person if you are considering who should become a  32 chief in your House or who should be your successor?  33 A   Yeah.  Anyone that lives a clean life and not an  34 alcoholic because the chief name is so sacred among  35 the Indians, and also the territory, and we want  36 someone that's really wise and understand the laws of  37 our land and respect the rest of the tribe, honour the  38 rest of the tribes.  39 Q   Do you look to the wife if, let us say the person you  40 are looking to is a man, would you look to -- expect  41 certain things from his wife if he is going to become  42 a chief?  43 A   Yeah, in the very ancient time grandmother said the  44 chiefs had a hard time selecting a chief.  They select  45 their own family, but like I said, the chiefs life  46 should be clean and pure because -- because the eagle  47 down is white, that means pure and eagle down is soft 751  1 and -- very soft.  That's why I say when you are  2 grieved, and the chiefs will speak to you in the Feast  3 House if there's any death in the family, and you  4 could feel their words how they -- how they droned on.  5 It's just like as if the feathers fell on you, on your  6 life, that's how their words are.  7 Q   Is that still the case today?  8 A   Yeah, it's still, it is today.  So as you said about  9 the wife, this happens in the ancient time if the wife  10 of the supposed to be a chief gossips, that's what we  11 call guu galamk'.  12 THE TRANSLATOR: Guu galamk', G-u-x-w g-a-1-a-m-k-'.  13 THE WITNESS:   And gossips and hurt people's feeling, then the  14 chiefs of the House would select another one because  15 they want the chief and the territory to be complete  16 pure and true and the chief is supposed to tell the  17 truth, not to lie about anybody else's territory.  18 MR. GRANT:  19 Q   Who was involved in the decision that you would be  20 given the name Antgulilbix in 1982?  Who participated  21 in making that decision?  22 A   I made it myself.  23 Q   Okay.  24 A   The reason is grandmother told me that if there's  25 no -- no men in the family, then a woman will take a  26 great chief, grandmother said.  That's why I ask my  27 cousin Wilfred Gawa that if he's willing to take  28 Antgulilbix, and that's how it should be, Wilfred  29 should go up higher.  If he take Antgulilbix, and then  30 some of the family will take Yal, but he -- he won't  31 take it.  The reason I selected him is because he's  32 still working and he's still strong, way younger than  33 I am because their mother is the youngest of the  34 family.  35 Q   That is Wilfred's mother was the youngest of the  36 family?  37 A   Yeah, of the family.  38 Q   Now, you say you decided yourself?  39 A   Yeah.  40 Q   But did you have a meeting with your brother Stanley?  41 A   Yeah.  I had -- this was among the meeting after  42 Wilfred didn't -- didn't want to take Antgulilbix.  43 That's when I told in the meeting that I -- I'm  44 willing to take my auntie's power, that's 54.  45 THE TRANSLATOR: Dax gyat, D-a-x, underlined, g-y-a-t.  46 THE COURT:  G-y-a-t?  47 THE TRANSLATOR: Yes. 752  1 THE WITNESS: Even though I'm already retired of work, when I was  2 strong I went back and forth to the coast and worked  3 real hard and I can't help -- accomplish so many  4 things, but at this time I told him even Tsaligi am  5 luu wok'y hli dax gyathl no'y.  That means whether I  6 spent just a night after taking it, that's a very  7 ancient word.  8 MR. GRANT:  9 Q   Which, what you just said?  10 A   Yeah, Tsaligi am luu wok'y hli dax gyathl no'y.  11 THE TRANSLATOR: Can I get her to say it again?  12 MR. GRANT:  13 Q   Can you just repeat the word for the interpreter?  14 A   Tsaligi am luu wok'y hli dax gyathl no'y.  15 THE TRANSLATOR: Tsaligi am luu wok'y, T-s-a-1-i-g-i a-m  16 1-u-u-w-o-x-'-y(sic).  17 MR. GRANT:  18 Q   Go ahead?  19 A   Yeah.  20 Q   You're finished?  21 A   Yeah, that's how it's decided and all the chiefs of  22 the different Giskaast and my own family they all  23 agree, this was -- this was the day before Auntie  24 Emily is buried.  25 Q   Did a similar process occur when Stanley was selected  26 to be Tsibasaa in 1958?  27 A   Yes.  Yes.  28 Q   And can you describe some of the reasons why Stanley  29 was selected to be Tsibasaa in 1958?  30 A   Yeah.  It's our own family selected him, our own  31 crest, but -- but our law is the different Giskaast  32 chiefs should be present and they were there too and  33 some of -- one of the granny is still alive at that  34 time, that is, Lucy Tait, Fred White's mother, and  35 Lucy would like Leonard Gawa to take Tsibasaa.  36 Q   He's the person who holds that name Gwin lax nisims  37 now and was on your seating chart; is that right?  38 A   Yeah.  Yeah, but my brother Wilfred Gawa spoke up,  39 that's Yal.  He said "Leonard is too young to take the  40 chief.  I know him."  He said.  "So -- so I select  41 Stanley to take Tsibasaa." he said.  42 Q   Did all of the chiefs in your House agree with that?  43 A   Yeah.  Gwin lax nisims spoke up too. That's late  44 Alfred Latz.  Should we adjourn Mr. Grant?  Yes, we can adjourn now.  Until two o'clock?  All right.  4 5 THE COURT  4 6 MR. GRANT  4 7 THE COURT 753  1 THE REGISTRAR:  Order in court.  2  3 (PROCEEDINGS ADJOURNED FOR LUNCHEON RECESS)  4  5 I hereby certify the foregoing to be  6 a true and accurate transcript of the  7 proceedings transcribed to the best  8 of my skill and ability.  9  10    11 Tanita S. French  12 Official Reporter  13 xh2 Mary Johnson (for Plaintiffs)  14  15 (PROCEEDINGS RECONVENED PURSUANT TO AFTERNOON RECESS)  16  17 THE REGISTRAR: Order in court.  18 THE COURT: Mr. Grant.  19 MR. GRANT:  20 Q   Yes, My Lord, before leaving the area of songs, do  21 many of the Gitksan Houses have songs today?  22 A   Yeah, there were very many.  There were -- they know  23 the songs.  Its villages know their songs.  24 Q   And just before the break you said that the songs  25 were -- that if the songs were lost, the house would  26 still have its adaawk and its crests?  27 A   Yeah.  28 Q   Is there anything else that you can say about what  29 would happen if the songs were lost?  30 A   If -- if the songs were lost and -- and the chief  31 would ask -- would tell a history of his song to  32 another chief, then that chief would compose a song  33 for him.  That's how they carry on with the -- with  34 the adaawks and the songs.  35 Q   The songs that -- the song like the one you sung  36 yesterday, was that a recently composed song or a very  37 very ancient song?  38 A  A very ancient song.  But if they compose the song  39 about the history, it's just as ancient too because  4 0 they didn't compose it.  41 Q   Okay.  You said just then that if they compose a song  42 it is ancient because it comes from the history?  43 A   Yeah, it's -- it's about the ancient history that they  44 will tell another chief, then the chief will compose  45 the song about they adaawk.  46 Q   So if you composed a song today about an adaawk, that  47 song would be about the ancient adaawk, is what you're 1  2  A  3  4  Q  5  6  A  7  Q  8  A  9  Q  10  A  11  Q  12  13  A  14  Q  15  16  17  A  18  Q  19  A  20  21  Q  22  A  23  Q  24  25  26  A  27  28  THE  COURT  29  MR.  GRANT  30  Q  31  A  32  Q  33  A  34  Q  35  A  36  THE  COURT  37  MR.  GRANT  38  39  THE  COURT  40  MR.  GRANT  41  Q  42  A  43  Q  44  A  45  Q  46  47  754  saying?  Yeah, yeah nothing will be added to it.  It will be  just about the adaawk.  Okay.  But like the song you sang yesterday, that was  a song not composed by you?  No.  Or your grandmother?  No.  It was composed in those ancient times?  Yes.  Yes.  Okay. I'd like to -- when we left off, we were  talking about the Gwin o'op, this fishing site?  Yes.  Where you sang the song Hawaaws.  Do you have fishing  sites, that is, does Antgulilbix and Tsibasaa have  fishing sites?  Yes.  Can you describe where those sites are located?  The first one is located not -- not very far from the  village of Glen Vowell.  And it's on the Skeena River?  On the Skeena, yeah.  And what is the name of that site?  If you can't  remember, just say so and I believe the court -- I'll  lead you on it.  You can't remember it right now?  It's the name that I always forget, but it comes back  again.  :  Where is it?  It's just above Glen Vowell; is that right?  Yes.  It's between Glen Vowell and --  Kispiox.  And Kispiox?  And that's where --  :  Do you have the name in your brief?  :  I have the name on the list.  I'm sorry, I was just  letting her finish her answer.  :  All right.  Sorry?  That's Wilt gallii bax fishing site.  And it's called Gwin Disgyenn?  Yes. Gwin Disygenn.  Number 328 on the list.  This is the list of place  names of Antgulilbix.  And what side of the river, if you're facing 1  2  3  4  A  5  Q  6  7  A  8  Q  9  10  11  A  12  MR.  GOLDI  13  14  THE  COURT  15  MR.  GRANT  16  17  THE  COURT  18  19  20  MR.  GRANT  21  Q  22  23  24  A  25  Q  26  27  A  28  29  30  31  32  33  34  35  36  Q  37  38  A  39  Q  40  Q  41  A  42  43  Q  44  45  A  46  Q  47  A  755  downstream and you're in the middle of the river, what  bank is it on, the right bank or the left bank?  Is it  on the same side as Glen Vowell?  Yes.  And this is just below the -- your ancient village of  Wilt allii bax?  Yeah, Wilt gallii bax.  Okay.  332, My Lord.  Now, was that fishing site used by the members of  your House when they stayed at Wilt gallii bax's.  Yes.  EI: Now, why not just ask her who uses it?  That  question suggested the answer.  : Oh, yes, that was a clearly leading question.  :  Yes.  If my friend's opposing any leading  questions --  : I don't think your friend objected when you suggested  the name that she couldn't remember, but this is a  matter of greater substance.  And of course my question wasn't who uses it now, it  was at that time.  Now, has that site been used in your lifetime?  Yes.  And who used -- who has used that site in your  lifetime?  My grandmother told me it was Suu no'osxw that lives  there, and I didn't see this elderly man, one of the  grandfather from the House of Tsibasaa.  And after he  died, then Emily Latz and her husband Walter Latz  lived there for a long time.  This was while they were  still young.  The smoke house stands just near the  road that -- that faced the road that turns into Glen  Vowell, an old road.  That's where the smoke house  stands.  Just so that the court understands your answer,  there's a highway between Hazelton and Kispiox?  Yes.  And a turn-off into Glen Vowell today; is that right?  A road --  I mean the old -- the old road that they use for a  shortcut in the olden days.  And there was another road that used to be there going  into Glen Vowell?  Yes.  And that's where the smoke house was?  Yeah. 756  1 Q   It's near the vegetable farm, where the vegetable farm  2 is located on that highway today?  3 A   Yeah.  Yeah, not very far from the vegetable farm.  4 Q   Okay.  Is there a smoke house there today?  5 A   No.  6 Q   Why not?  7 A   Because they -- they didn't build another smoke house  8 because Wilfred is supposed to be the one that looks  9 after it, but he looks after another smoke house,  10 another fishing site.  11 Q   And is the farm right up here near the fishing site?  12 A   Yeah.  13 Q   Now —  14 A   Do you mean by Gwin Disgyenn?  15 Q   Yes.  16 A   Yes.  There's a farm and he just put his fence right  17 behind the smoke house and he got a nice frame house  18 standing there.  He's an elderly man, but he works  19 real hard and his name is Fred Fallensby.  20 Q   And that was a person who lived there, he doesn't live  21 there today; is that right?  22 A   No.  23 Q   Now, if you continue -- and this is on the Skeena  24 river, this fishing site; is that right?  25 A   Yeah.  Yeah.  26 Q   Okay.  If you continued on upstream, can you tell us  27 where the next fishing site of Antgulilbix is located?  28 A   It's not very far from -- from this fishing site.  29 There's another fishing site that is called An Guux Di  30 Git wank.  31 Q   Three-twenty-nine on the list.  32 And is that on the Skeena River or the Kispiox  33 River?  34 A   On the Skeena.  35 Q   And is it on the same side as Gwin Disgyenn?  36 A   No, on the other side.  37 Q   And —  38 A   But they move the smoke house on this side when --  39 when one of the grandmother got arthritis.  40 Q   Okay.  And who stayed at that fishing site?  41 A   That's -- that's Gwin lax nisims.  Sarah Doll's  42 mother.  43 MR. GRANT:   Gwin lax nisims is on your list of names.  44 THE TRANSLATOR: Thirteen on Mary's.  45 THE COURT:  Thirteen is what?  46 MR. GRANT:  The name of the person Gwin lax nisims, Sarah Doll's  47 mother, that's on the list of members of her House. 757  1 THE  MR.  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  2 7 MR.  2 8 THE  2 9 THE  30 THE  31 THE  32 THE  33  34  35  36 THE  37  38  39  4 0 MR.  41  42  43  44  45  46  47  COURT  GRANT  Q  Thank you.  And going further up the stream is there another  fishing -- where's the next fishing site of  Antgulilbix?  A   There still -- go up the Skeena until it gets to the  other side, Holiday's Ranch, and the fishing site is  called Ga'gits'unhl t'a'ootsip.  Q   Three-thirty-eight on the territory list.  And can you explain what that name means?  It means behind the little fort that stands in the  middle of the Skeena River.  And was there a fort there on an island in that  location?  Yeah.  And that was a fort of the Gitksan people that was  built by the people of Kispiox?  Was this fort -- who  built the fort?  No, no.  I didn't say they built the fort.  Oh --  They just call it Ga'tgits'unhl t'a'ootsip.  That's  the little island that they call the Ga'tgits'unhl  t'a'ootsip.  And sometimes the white people call those  little islands fort.  That's where the braves were  fighting in the olden days when the Nass River people  attack our village.  GRANT:  Now —  COURT:  Their ground was on the island?  WITNESS:   It's not a big island, it's a very small island.  COURT:  Yes?  WITNESS:   With trees on it.  COURT:  Yes.  I just didn't understand whether you said that  the place where the warriors who were killed by the  gentlemen from the Nass was on this island or was it  somewhere else?  WITNESS:   Yeah, one of -- one of our brave man's name is --  is K'alant and he was -- he was hiding on the island  and that's where the Nass River people attack him and  that's where they killed him.  A  A  Q  A  Q  A  GRANT:  Q  A  Q  A  Q  And the fishing site is -- it's not on the island, but  it's on the Kispiox side of the Skeena River?  Yes.  Now, who uses this -- who in your House has used this  fishing site?  Uncle George Williams, that's Tsibasaa.  Does Wilfred Gawa use it today? 758  1 A   Yeah, he use it today, Yal.  2 Q   If you continued up the Skeena River from this site,  3 are there any other fishing sites of Antgulilbix  4 further up the Skeena?  5 A   Oh, there's one up at what they call Miinhl Antselda.  6 Q   Number 335.  Yes?  And why is it called that name?  7 A   Because of that little mountain.  You could see the  8 little mountain standing, and there's a look-out on  9 the top and -- and on the side of this mountain  10 there's a trail goes around it and the stones were --  11 were so thin around the side of the mountain.  That's  12 what they call these stones, An Saalda'm lo'op.  They  13 were smooth.  14 MR. GRANT:   What number is that on the list?  15 THE TRANSLATOR: Number ten.  16 MR. GRANT:  17 Q   Number 10 on page 1 of the list from yesterday.  18 And I believe you described that before.  Is this  19 a fishing site that you have -- you have used?  2 0 A   Yeah.  21 Q   And this is a site where you were with your mother and  22 father?  23 A   Yes.  24 Q   Is there any more fishing sites of Antgulilbix  25 upstream on the Skeena River?  26 A   No, that's — that's all.  27 Q   There's a place in the Skeena River between Kispiox  28 and Hazelton where there's a bridge; is that right?  2 9 A   Yeah.  30 Q   And it's known as Four-Mile Canyon?  31 A   Yeah.  32 Q   Does Antgulilbix have any fishing sites in Four-Mile  33 Canyon?  34 A   It's Yal that owns the fishing site there.  35 Q   And this is the Yal from your House?  36 A   Yes.  37 Q   That's Wilfred Gawa?  38 A   Yeah.  39 Q   And this -- this canyon is downstream of Glen -- it's  40 downstream of the fishing site at Glen Vowell that you  41 talked about, isn't it?  42 A   No, it's on the -- as you cross the bridge, it's on  43 the other side of the bridge.  I didn't see it, I just  44 see the -- saw the smoke house.  45 Q   And is there a name for this fishing site?  46 A   The name of the other fishing site is An skiis Wiiget.  47 Q   Three-thirty-six on the list. 759  1  2  A  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23 THE  COURT  24  2 5 MR.  GRANT  26  27 THE  COURT  28  29  30  31  32  33 MR.  GRANT  34  Q  35  36  A  37  38  39  40  41  Q  42  A  43  Q  44  45  A  46  Q  47  A  And what does that name mean?  Well, remember the story about Wiiget.  I know -- I  know a lot about this story and -- and this is what  happened to him.  He's so greedy -- a lot of my people  know this story, and he eats up everything.  So he --  when he -- as he was travelling he found a man living  all alone with a lot of swans in his House he dried,  and -- "Where you got all this?"  he said.  And he  showed him the skin of the swan.  "I just wear this  and go out on the water and -- and catch -- tie all  the two or three foot of the swan and bring them over  to the shore."  But he was so greedy and tie the foot  of so many swans, and the swans felt something about  their foot, so they all fly and they were taken up  into the air.  And he wished that he will land on a  rock.  If he land on the earth he will go down and go  down underneath the earth, so he did land on a rock  and nearly -- nearly -- the rock nearly cover him,  just his face can't move.  All his hands were covered,  and all the animals came and looked at him and ask --  he ask "Help.", but they can't help him.  But when a  link comes along --  :  I think you should cut this off, Mr. Grant.  This  really isn't going to be of any help.  :  I'm only asking her about this as to why that site  is named.  :  Oh, I understand that.  And the name has something  to do with a story that relates to Mr. Wiiget and his  greediness and swans and things of that kind, but  surely I don't need any more than that, unless you  think there's some special significance that I have to  know?  Is there special marks on the rock today where this  fishing site is?  Is there marks on the rock?  They say there's a mark, but I didn't see it.  The  reason I want to -- I want to tell this is because the  Nishga'a have called Wiiget their father, but Wiiget  is among us too and we know a lot of stories about  him.  About Wiiget?  Yeah, so another fishing site is called ansamtu'uts.  Three-three-seven.  And that's in Four-Mile Canyon  too?  Yeah, the same.  And is that one of Yal's fishing sites?  Yeah. 760  1 Q   And what does that mean, ansamtu'uts?  2 A   It means a pot of iron.  3 Q   Pot iron?  4 A   Yeah.  5 Q   Do you know why it's called that?  6 A   They use it to cook their meal.  7 Q   Does Antgulilbix have any fishing sites on the Kispiox  8 River?  9 A   There's a fishing site not far from the village  10 where -- where late Fred White used to fish.  I  11 remember the spot and my grandmother used to fish  12 there too.  It's not far from the village and that's  13 all the fishing site I know.  14 Q   These are all the sites that you know of Antgulilbix?  15 A   Yes.  Yes.  16 Q   And you know the sites of other chiefs on the Skeena  17 River too, don't you?  18 A   Yeah.  Yeah.  Yeah.  19 MR. GOLDIE: Excuse me.  Is there a name, My Lord, for the one on  20 the Kispiox?  I missed it.  21 THE COURT: I don't think it was given, if there is one.  22 MR. GRANT:  23 Q   No.  Do you recall, is there a Gitksan name for the  24 one on the Kispiox River that you recall?  25 A   Kispiox River?  2 6 THE COURT:  The one which Fred White and your grandmother used.  27 THE WITNESS:   Oh, no.  28 MR. GOLDIE: Thank you.  2 9 MR. GRANT:  30 Q   From what you said yesterday, would it be fair to  31 say -- would it be correct that you grew up at fishing  32 sites every year from the time when you were very  33 small?  34 A   Yeah.  35 Q   And could you tell the court what your family would do  36 at the fishing site, what did they do with the fish  37 they caught at the fishing site?  38 A   They dry them and they had a preparation for the  39 wintertime, just enough they know how much they will  40 use.  And they got the deep freeze.  They dug it into  41 the earth and line it with many things like birch  42 bark.  43 Q   Uh-huh?  44 A  And that's where they kept their food, meat and fish.  45 They also hide it from the enemies because our country  46 is rich and they know it, that's why they always  47 attack it in the olden days. 1  Q  2  3  4  A  5  6  7  8  9  10  11  Q  12  A  13  Q  14  15  A  16  17  18  19  20  21  22  Q  23  24  25  A  26  Q  27  28  29  30  31  32  Q  33  34  35  A  36  37  38  Q  39  A  40  41  42  Q  43  44  A  45  Q  46  47  A  761  When you were growing up, did your family always have  a lot of fish?  Was there always lots of fish for your  family?  Yeah.  Yeah.  There were -- in my time there were  no -- no welfare and no social assistance and about  this time of the year everybody's busy planting  potatoes and planting vegetables and they got all  their gardens of black currants.  That's why I still  like black currents today because my mother grow --  everybody grows black currents.  Now, are the fish still dried today by the Gitksan?  Yeah, they still dry it.  And can you explain how the fish were dried by your  parents and how they are dried today?  Yeah, first they didn't dry the fish while they were  still very fresh, they just leave it overnight or put  it through the stream and leave it near the water  overnight and the next day then they dress it and  smoke it.  If they dry it -- if they dress it while  they really fresh, they would be hard when they dry,  after they dry.  And this -- they do the same method of using the  fish -- of drying the fish in the same way today; is  that right?  Yeah.  And they got a special wood for smoke, it's the  cottonwood tree, and it makes the fish really shiny,  and they don't use that pine.  If they use it the fish  will all turn black.  It's -- the smoke is too strong.  So they use one special kind of tree, it's cottonwood  tree.  And those they would get from the territory around the  fishing sites or from their territory?  The cottonwood  trees, where would they get the cottonwood trees from?  They were always close by everywhere, and not just the  cottonwood tree, it's -- it's -- they call those wood  am k'ooxst.  And what does that mean?  When -- after they grow really big they call them  cottonwood, yeah, they were the same only they were  smaller.  Did -- do you remember trading with the people at  Gisgagas, for fish that were at Gisgagas?  Yes.  Can you tell the court when that happened and an  example of when it happened that you recall and --  Yeah. 762  -- where you were going?  Yeah, yeah.  When the hunters go out this was still  the month of February when the ice is still good, and  they pack they toboggans with food, like sugar and  flour and rice, lard, tea, and dried -- dried berries  like peaches.  And when they get to Gisgagas, there  was a junction there at -- Gisgagas Creek runs into  Skeena and they call this saxwhl aks, and that's where  they camp, and left they camp and go up to Gisgagas to  trade for some dried fish there.  They always got many  dried fish there.  They trade it with tea or flour or  sugar.  That's what they need because they didn't  always go to town, no road at that time, just a trail  that the horses use.  Did you go on such a trip?  Yes.  And who did you travel with when you went up  towards --  My first husband Peter Angus.  We were going up to  Moose Creek, Wii minosik territory.  And did you go and stay out at Moose Creek with your  husband?  Yes.  Yes.  And was he Wii minosik?  No.  Or was he a member of the House?  He's -- he's a member of the House and his name is  'Wiis t'is.  :  Can you give that name please to the court?  30 THE TRANSLATOR: 'Wiis t'is, '-W-i-i-s t-'-i-s.  31 THE COURT: That's your first husband's name?  32 THE WITNESS: Yeah.  33 MR. GRANT:  34 Q   And he was a member of the house of Wii minosik; is  35 that right?  36 A   Yeah.  37 MR. GRANT:   That's number?  38 THE TRANSLATOR: Seventy-seven.  3 9 MR. GRANT:  40 Q   Seventy-seven on the list of plaintiffs.  41 A  We pass -- I remember we have passed Wii gaak's  42 territory before we get to Moose Creek.  43 MR. GRANT:  What number is that, please?  44 THE TRANSLATOR: Seventy-three.  4 5 MR. GRANT:  46 Q   And do you recall the -- when you say you passed Wii  47 gaak's territory, is there a geographical place you  1  Q  2  A  3  4  5  6  7  8  9  10  11  12  13  14  15  Q  16  A  17  Q  18  19  A  20  21  Q  22  23  A  24  Q  25  A  26  Q  27  A  28  2 9 MR.  GRA1 763  1  2  A  3  4  Q  5  A  6  7  Q  8  9  10  A  11  12  13  MR.  GRANT  14  15  16  MR.  GOLDI  17  18  MR.  GRANT  19  THE  COURT  20  MR.  GRANT  21  THE  COURT  22  MR.  GRANT  23  Q  24  25  26  27  28  A  29  30  Q  31  32  A  33  34  35  36  Q  37  38  A  39  THE  COURT  40  41  MR.  GRANT  42  Q  43  44  45  A  46  47  can refer to which was Wii gaak's territory?  I remember they got a cabin just at the edge of the  Skeena River.  Okay.  And one of his boys were there when we -- we stopped  there for a while and they give us something to eat.  You indicated that Wii minosik's territory was in the  area of Moose Creek.  Is there any other places that  you remember the names of on Wii minosik's territory?  Yes.  Not very far from Moose Creek there's another  creek runs into Skeena and they call this creek Xsi An  Dap Matx.  :   I believe 311, but it's -- the reference to the  other name isn't correct on this one, it's a different  place.  It's X-s-i, and then the balance of 311.  E: You mean -- excuse me, My Lord, X-s-i should precede  the words Anda'ap Matx?  Yes.  So it's —  X-s-i and then Anda'ap Matx.  Thank you.  And I'm not referring to the right-hand column on that  reference.  Okay.  Was there -- is there any other place names  that you could just refer us to on Wii minosik's  territory?  Yes.  On this side of Skeena there is -- they say  there's another place, it's called Gwi luu skeekwit.  And what -- and what is that, was that a creek or a  mountain or?  It's a nice hunting ground.  I didn't see it and  Edith -- Edith Gawa went there once or twice and she  knows there were a lot of beavers there.  There is a  lake there, she said, where the cabin stands.  When you refer to Edith Gawa, are you referring here  to your -- Wilfred Gawa's wife?  Yeah.  Yeah.  She belongs to the house of Wii minosik.  : Can we have the name of this hunting ground if there  is one?  Yes, G-w-i-1-u-u, one word, second word is  X-e-e-k-w-i-t.  Did your family also trade fish with the Nishga'a?  No.  They trade -- they trade some dried berries to  the Tsimxsan people for dried clams and fish eggs and  seaweed.  They trade their berry, like soap berries, 764  1  2  3  4  5  6  7  8  9  10 MR.  11  12  13 THE  14  15 MR.  16 THE  17 MR.  18 THE  19 MR.  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35 THE  3 6 MR.  37 THE  3 8 MR.  39  4 0 THE  41 MR.  42  43 THE  44 THE  45  46  4 7 MR.  Q  A  Q  A  Q  A  GRANT  COURT  GRANT  COURT  GRANT  COURT  GRANT  Q  A  Q  A  A  Q  A  COURT  GRANT  COURT  GRANT  that what they really like, and they still like it  today.  So that you still trade this today?  Yes.  Soap berries?  Yes.  And soap berries are -- they were dried were they?  Yes.  When they were dry, but today they put up jams  and they traded with the abalones.  I'm not sure we'll get through the next section,  but I'm prepared to -- I'm moving into another area  that's all.  How do you feel, Mrs. Johnson, can you carry on for  a little while?  Yes.  Can I believe that?  I don't think she'll ever say she can't carry on.  Well, let's go to four o'clock if we can.  I'd like to ask you about your territories, that is  the territories of Antgulilbix.  Yes.  How many territories does Antgulilbix have within this  territory of the Gitksan?  Yes, there's the first one is what the white people  call where the moon shines on, that's Andamhl.  Three-twenty-two on the list.  And can you tell us where that is in relation to  say one of the villages?  It's a mountain behind Glen Vowell village and that's  where the log is that I mentioned earlier.  They  logged off the side of this mountain.  When was the side of this mountain logged off?  I don't know, maybe a few years ago.  How does one spell Glen Vowell?  G-e-1-e-n, one word, V-o-w-e-1-1, second word.  G-e-1-e-n?  What did I say?  Maybe I need the adjournment, My  -w-e-1-1.  Lord, G-l-e-n, V-o-  COURT: Right, thank you.  GRANT:  You're asking me too hard questions with English  words.  COURT:  Sorry.  WITNESS:   And below this mountain where the vegetable farm  is, not far from there is the village of Wilt galli  bax.  GRANT:   I'd like to refer to Exhibit 17 for a moment, 765  1  2  THE  COURT  3  MR.  GRANT  4  5  THE  COURT  6  MR.  GRANT  7  8  THE  COURT  9  MR.  GRANT  10  11  THE  COURT  12  MR.  GRANT  13  Q  14  15  16  A  17  Q  18  A  19  Q  20  21  22  A  23  Q  24  A  25  MR.  GRANT  26  27  28  THE  COURT  29  MR.  GRANT  30  Q  31  32  33  34  A  35  Q  36  37  38  A  39  Q  40  A  41  Q  42  43  A  44  Q  45  46  47  please?  That last name is 332.  :  Three-thirty-two.  :  I refer you to the second map at the end at Tab 9 of  Exhibit 17.  : The second map or --  :  The second -- there's two plastic holders with maps  in them.  :  The second one or the second one from the end?  :  The last one, the very last map.  It's roughly  shaped like this.  :  Yes.  Pie-shaped.  Now, can you recognize this map, and I  just will give you some pinpoints.  On the top of this  map is Kispiox?  Yes.  It says -- that's the village there and Glen Vowell?  Yeah.  Now, do you recognize that map, the territory referred  to on that map, and I'm asking you about the territory  that's in the heavy dark line?  Yes.  Okay.  Now, whose territory is that?  That's our territory.  :   For the record, My Lord, I folded the bottom half.  I folded the bottom half of this under which has the  name on it.  :  Yes.  All right.  Now, can you show on that map wher  if it's too difficult for you to r  just have to tell me, that's okay.  Andamhl on the map?  Is it that one?  Okay.  There's a name along the li  referring -- along the black line  side of this map called Andamhl?  Oh, yeah.  Now, that's the mountain that you'  Yes.  Now, on the other side of Andamhl,  holds that territory?  Luutkudziiwas.  Do you know how long your territor  Vowell, that is, if you walked str  mountain from Glen Vowell, how Ion  where Glen Vowell is here down to  e Andamhl is?  And  ead the map, you  Can you see  ne of the map,  on the right-hand  re referring to?  do you know who  y is from Glen  aight back up the  g would it be from  the bottom, do you 766  1 know how long that is?  2 A   Stanley might know because Stanley used to go to  3 Andamhl.  4 Q   Okay.  And Stanley's your brother Tsibasaa?  5 A   Yes.  Yes.  And my father used to take him up there  6 when he was young and showed him where -- where they  7 will set the trap.  8 Q   Now, on this map right in the top of the middle going  9 towards Glen Vowell there's this creek with a name on  10 it "Xsu wil galli bax"?  11 A   Yes.  12 Q   Do you know that creek?  13 A   Yes.  14 Q   And —  15 A   It runs into that vegetable farm that I mentioned a  16 while ago and -- and the vegetable farm covers that  17 little creek, but as you pass by you could still see  18 the water is bubbling out there.  19 Q   Okay.  And then there's a little triangle just behind  20 Glen Vowell and the name Wilt galli bax on that  21 triangle.  Is that where the village that you referred  22 to yesterday was located?  It's right near the creek?  23 A   Yes.  24 Q   Okay.  25 A   It's not far from the vegetable farm where there's a  2 6 clearing is where I remember I went with my mother  27 when I was smaller.  She's going to pick some  28 blueberries where Wil Gallii Bak used to stand, and  29 when we get there there were no trees growing, they  30 just -- just bushes were growing, cottonwood bushes.  31 MR. GOLDIE: I wonder if my friend could tell us whether the  32 vegetable farm is on the -- on what side of the road  33 between Hazelton and Kispiox is that farm?  Is it  34 where the old village was or is it between the road  35 and the Skeena River?  36 THE WITNESS:   It's close to the old village, not very far.  I  37 remember there's a trail there before the farmers were  38 there and we -- we didn't walk very long when we get  39 to where the old village stands.  40 THE COURT:  Well, is there any dispute about it?  My  41 recollection is that when you're driving towards  42 Kispiox it's on the left-hand side, is it not?  43 MR. GRANT:  Yes.  I'm just trying to recall that.  There may be  44 some of it on the right-hand side too, the building is  45 on the left-hand side.  I don't think there's a  46 dispute about that.  47 THE COURT: That highway is not marked on this plan is it, or is 767  MR.  THE  MR.  MR.  9  10 THE  11 MR.  12  13 THE  14 MR.  15  16  17 THE  18 MR.  19  20  21  22  23 THE  2 4 MR.  25 THE  26  27  28  29  30 THE  31  32  33  34  35  36  37  38  39  40  41  42  it?  GOLDIE: Yes.  COURT:  Is this the highway?  GOLDIE: Yes.  GRANT:  The black line -- you have Sikadook Indian reserve  two, and you see the black line going through it and  actually going up between Indian and reserve there?  That is my understanding of what is the road, a  representation of the road.  COURT:  Is that the road?  GRANT:  It's a thin -- it's a thin black line, not the heavy  dark line.  COURT:  That's the one that runs towards the river?  GRANT:  Yes.  There is one that runs towards the river and  bisects the road Sikadook, that's another road, My  Lord, but there's a road that's at the base of it --  COURT:  Oh, yes.  GRANT:  -- that goes along, and if you follow it back you  can see where it crosses the river on the right-hand  side of the map and then you can see just below  Kispiox where it again crosses the river along the  Kispiox river.  COURT:  Yes, right at the village.  GRANT:  Yes.  COURT:  Yes.  All right.  So that's the road.  All right.  Well, on that happy note of discovery, shall we  adjourn until tomorrow?  We have some matter -- a  matter to deal with at 9:30 I think.  All right.  Thank you.  We'll adjourn until 9:30 tomorrow morning.  REGISTRAR Order in court.  (PROCEEDINGS ADJOURNED TO MAY 29, 1987 AT 9:30 A.M.)  I hereby certify the foregoing to be  a true and accurate transcript of the  proceedings transcribed to the best  of my skill and ability.  Tanita S. French  Official Reporter ■>69  Mary Johnson (for Plaintiffs)  In chief by Mr. Grant  1  2 (PROCEEDINGS RECONVENED PURSUANT TO AFTERNOON RECESS)  3  4 THE REGISTRAR: Order in court.  5 THE COURT: Mr. Grant.  6 MR. GRANT:  7 q  Yes, My Lord, before leaving the area of songs, do  8 many of the Gitksan Houses have songs today?  9 A   Yeah, there were very many.  There were — they know  10 the songs.  Its villages know their songs.  11 0  And just before the break you said that the songs  12 were -- that if the songs were lost, the house would  13 still have its adaawk and its crests?  14 A   Yeah.  15 Q   Is there anything else that you can say about what  16 would happen if the songs were lost?  17 a   If — if the songs were lost and — and the chief  18 would ask -- would tell a history of his song to  19 another chief, then that chief would compose a song  20 for him.  That's how they carry on with the — with  21 the adaawks and the songs.  22 Q  The songs that — the song like the one you sung  23 yesterday, was that a recently composed song or a very  24 very ancient song?  25 A  A very ancient song.  But if they compose the song  26 about the history, it's just as ancient too because  27 they didn't compose it.  28 0  Okay.  You said just then that if they compose a song  29 it is ancient because it comes from the history?  30 A   Yeah, it's -- it's about the ancient history that they  31 will tell another chief, then the chief will compose  32 the song about they adaawk.  33 Q   So if you composed a song today about an adaawk, that  34 song would be about the ancient adaawk, is what you're  35 saying?  36 A   Yeah, yeah nothing will be added to it.  It will be  37 ]ust about the adaawk.  38 0  Okay.  But like the song you sang yesterday, that was  39 a song not composed by you?  40 A   No.  4 1 Q   Or your grandmother?  42 A   No.  43 Q   It was composed in those ancient times?  44 A   Yes.  Yes.  45 c   Okay.  I'd like to -- when we left off, we were  46 talking about the Gwin o'op, this fishing site?  4"' A   Yes. 770  Mary Johnson (for Plaintiffs)  In chief by Mr. Grant  1  Q  2  3  4  A  5  Q  6  A  7  8  Q  9  A  10  Q  11  12  13  A  14  15  THE  COURT:  16  MR.  GRANT:  17  Q  18  A  19  Q  20  A  21  Q  22  A  23  THE  COURT:  24  MR.  GRANT:  25  26  THE  COURT:  27  MR.  GRANT:  28  Q  29  A  30  Q  31  A  32  Q  33  34  35  36  37  38  A  39  Q  40  41  A  42  Q  43  44  45  A  46  MR.  GOLDIE  47  Where you sang the song Hawaaws.  Do you have fishing  sites, that is, does Antgulilbix and Tsibasaa have  fishing sites?  Yes.  Can you describe where those sites are located?  The first one is located not — not very far from the  village of Glen Vowell.  And it's on the Skeena River?  On the Skeena, yeah.  And what is the name of that site?  If you can't  remember, just say so and I believe the court — I'll  lead you on it.  You can't remember it right now?  It's the name that I always forget, but it comes back  again.  Where is it?  It's just above Glen Vowell; is that right?  Yes.  It's between Glen Vowell and —  Kispiox.  And Kispiox?  And that's where —  Do you have the name in your brief?  I have the name on the list.  I'm sorry, I was just  letting her finish her answer.  All right.  Sorry?  That's Wilt gallii bax fishing site.  And it's called Gwin Disgyenn?  Yes. Gwin Disygenn.  Number 328 on the list.  This is the list of place  names of Antgulilbix.  And what side of the river, if you're facing  downstream and you're in the middle of the river, what  bank is it on, the right bank or the left bank? Is it  on the same side as Glen Vowell?  Yes.  And this is just below the — your ancient village of  Wilt allii bax?  Yeah, Wilt gallii bax.  Okay.  332, My Lord.  Now, was that fishing site used by the members of  your House when they stayed at Wilt gallii bax's.  Yes.  : Now, why not just ask her who uses it? That  question suggested the answer. 771  Mary Johnson (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  MR. GRANT  Oh, yes, that was a clearly leading question.  Yes.  If my friend's opposing any leading  questions —  THE COURT: I don't think your friend objected when you suggested  the name that she couldn't remember, but this is a  matter of greater substance.  MR. GRANT;  Q  A  Q  A  Q  Q  A  A  Q  A  Q  A  Q  A  Q  A  0  A  Q  And  was  Yes  And  of course my question wasn't who uses it now, it  at that time.  Now, has that site been used in your lifetime?  who used — who has used that site in your  lifetime?  My grandmother told me it was Suu no'osxw  there, and I didn't see this elderly man,  grandfather from the House of Tsibasaa.  And after  died, then Emily Latz and her husband Walter Latz  lived there for a long time.  This was while they were  still young.  The smoke house stands just near the  road that — that faced the road that turns into Glen  that lives  one of the  he  Vowell,  stands.  Just so  there's  Yes.  an old road.  That's where the smoke house  that the court understands your answer,  a highway between Hazelton and Kispiox?  And a turn-off into Glen Vowell today; is that right?  A road —  I mean the old — the old road that they use for a  shortcut in the olden days.  And there was another road that used to be there going  into Glen Vowell?  Yes.  And that's where the smoke house was?  Yeah.  It's near the vegetable farm, where the vegetable farm  is located on that highway today?  Yeah.  Yeah, not very far from the vegetable farm.  Okay.  Is there a smoke house there today?  No.  Why not?  Because they — they didn't build another smoke house  because Wilfred is supposed to be the one that looks  after it, but he looks after another smoke house,  another fishing site.  And is the farm right up here near the fishing site?  Yeah.  Now — 772  Mary Johnson (for Plaintiffs)  In chief by Mr. Grant  1 A  Do you mean by Gwin Disgyenn?  2 Q  Yes.  3 A  Yes.  There's a farm and he just put his fence right  4 behind the smoke house and he got a nice frame house  5 standing there.  He's an elderly man, but he works  6 real hard and his name is Fred Fallensby.  7 Q  And that was a person who lived there, he doesn't live  8 there today; is that right?  9 A  No.  10 Q  Now, if you continue — and this is on the Skeena  11 river, this fishing site; is that right?  12 A  Yeah.  Yeah.  13 Q  Okay.  If you continued on upstream, can you tell us  14 where the next fishing site of Antgulilbix is located?  15 A  It's not very far from — from this fishing site.  16 There's another fishing site that is called An Guux Di  17 Git wank.  18 Q  Three-twenty-nine on the list.  19 And is that on the Skeena River or the Kispiox  20 River?  21 A  On the Skeena.  22 Q  And is it on the same side as Gwin Disgyenn?  23 A  No, on the other side.  24 Q  And —  25 A  But they move the smoke house on this side when —  26 when one of the grandmother got arthritis.  27 Q  Okay.  And who stayed at that fishing site?  28 A  That's — that's Gwin lax nisims.  Sarah Doll's  29 mother.  30 MR. GRANT:  Gwin lax nisims is on your list of names.  31 THE TRANSLATOR: Thirteen on Mary's.  32 THE COURT:  Thirteen is what?  33 MR. GRANT:  The name of the person Gwin lax nisims, Sarah Doll's  34 mother, that's on the list of members of her House.  35 THE COURT:  Thank you.  36 MR. GRANT:  37 q  And going further up the stream is there another  38 fishing — Where's the next fishing site of  39 Antgulilbix?  40 A  There still — go up the Skeena until it gets to the  41 other side, Holiday's Ranch, and the fishing site is  42 called Ga'gits'unhl t'a'ootsip.  43 Q  Three-thirty-eight on the territory list.  44 And can you explain what that name means?  45 A  It means behind the little fort that stands in the  46 middle of the Skeena River.  47 q  And was there a fort there on an island in that 773  Mary Johnson (for Plaintiffs)  In chief by Mr. Grant  1 location?  2 A  Yeah.  3 Q  And that was a fort of the Gitksan people that was  4 built by the people of Kispiox? Was this fort — who  5 built the fort?  6 A  No, no.  I didn't say they built the fort.  7 Q  Oh —  8 A  They just call it Ga'tgits'unhl t'a'ootsip.  That's  9 the little island that they call the Ga'tgits'unhl  10 t'a'ootsip.  And sometimes the white people call those  11 little islands fort.  That's where the braves were  12 fighting in the olden days when the Nass River people  13 attack our village.  14 MR. GRANT:  Now ~  15 THE COURT:  Their ground was on the island?  16 THE WITNESS:   It's not a big island, it's a very small island.  17 THE COURT:  Yes?  18 THE WITNESS:  With trees on it.  19 THE COURT:  Yes.  I just didn't understand whether you said that  20 the place where the warriors who were killed by the  21 gentlemen from the Nass was on this island or was it  22 somewhere else?  23 THE WITNESS:  Yeah, one of — one of our brave man's name is —  24 is K'alant and he was — he was hiding on the island  25 and that's where the Nass River people attack him and  26 that's where they killed him.  2 7 MR. GRANT:  28 Q  And the fishing site is — it's not on the island, but  29 it's on the Kispiox side of the Skeena River?  30 A  Yes.  31 Q  Now, who uses this — who in your House has used this  32 fishing site?  33 A  Uncle George Williams, that's Tsibasaa.  34 Q  Does Wilfred Gawa use it today?  35 A  Yeah, he use it today, Yal.  36 Q  if you continued up the Skeena River from this site,  37 are there any other fishing sites of Antgulilbix  38 further up the Skeena?  39 A  Oh, there's one up at what they call Miinhl Antselda.  40 Q  Number 335.  Yes? And why is it called that name?  41 A  Because of that little mountain.  You could see the  42 little mountain standing, and there's a look-out on  43 the top and — and on the side of this mountain  44 there's a trail goes around it and the stones were —  45 were so thin around the side of the mountain.  That's  46 what they call these stones, An Saalda'm lo'op. They  47 were smooth. 774  Mary Johnson (for Plaintiffs)  In chief by Mr. Grant  1 MR. GRANT:  What number is that on the list?  2 THE TRANSLATOR: Number ten.  3 MR. GRANT:  4 Q  Number 10 on page 1 of the list from yesterday.  5 And I believe you described that before.  Is this  6 a fishing site that you have — you have used?  7 A  Yeah.  8 Q  And this is a site where you were with your mother and  9 father?  10 A  Yes.  11 Q  Is there any more fishing sites of Antgulilbix  12 upstream on the Skeena River?  13 A  No, that's — that's all.  14 Q  There's a place in the Skeena River between Kispiox  15 and Hazelton where there's a bridge; is that right?  16 A  Yeah.  17 Q  And it's known as Four-Mile Canyon?  18 A  Yeah.  19 Q  Does Antgulilbix have any fishing sites in Four-Mile  20 Canyon?  21 A  It's Yal that owns the fishing site there.  22 Q  And this is the Yal from your House?  23 A  Yes.  24 Q  That's Wilfred Gawa?  25 A  Yeah.  26 Q  And this — this canyon is downstream of Glen — it's  27 downstream of the fishing site at Glen Vowell that you  28 talked about, isn't it?  29 A  No, it's on the — as you cross the bridge, it's on  30 the other side of the bridge.  I didn't see it, I just  31 see the — saw the smoke house.  32 Q  And is there a name for this fishing site?  33 A  The name of the other fishing site is An skiis Wiiget.  34 Q  Three-thirty-six on the list.  35 And what does that name mean?  36 A  Well, remember the story about Wiiget.  I know — I  37 know a lot about this story and — and this is what  38 happened to him.  He's so greedy — a lot of my people  39 know this story, and he eats up everything.  So he —  40 when he — as he was travelling he found a man living  41 all alone with a lot of swans in his House he dried,  42 and — "Where you got all this?"  he said.  And he  43 showed him the skin of the swan.  "I just wear this  44 and go out on the water and — and catch — tie all  45 the two or three foot of the swan and bring them over  46 to the shore."  But he was so greedy and tie the foot  47 of so many swans, and the swans felt something about 775  Mary Johnson (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  their foot, so they all fly and they were  into the air. And he wished that he will  rock. If he land on the earth he will go  down underneath the earth, so he did land  taken up  land on a  down and go  on a rock  THE COURT  and nearly — nearly — the rock nearly cover him,  just his face can't move.  All his hands were covered,  and all the animals came and looked at him and ask —  he ask "Help.", but they can't help him.  But when a  link comes along —  I think you should cut this off, Mr. Grant.  This  really isn't going to be of any help.  MR. GRANT:  I'm only asking her about this as to why that site  is named.  THE COURT:  Oh, I understand that. And the name has something  to do with a story that relates to Mr. Wiiget and his  greediness and swans and things of that kind, but  surely I don't need any more than that, unless you  think there's some special significance that I have to  know?  MR. GRANT:  Q  Is there special marks on the rock today where this  fishing site is?  Is there marks on the rock?  A  They say there's a mark, but I didn't see it.  The  want to — I want to tell this is because the  have called Wiiget their father, but Wiiget  us too and we know a lot of stories about  reason I  Nishga'a  is among  him.  Q  About Wiiget?  A  Yeah, so another fishing site is called ansamtu'uts.  Q  Three-three-seven.  And that's in Four-Mile Canyon  too?  A  Yeah, the same.  Q  And is that one of Yal's  A  Yeah.  Q  And what does that mean,  A  It means a pot of iron.  Q  Pot iron?  A  Yeah.  Q  Do you know why it's called that?  A  They use it to cook their meal.  Q  Does Antgulilbix have any fishing sites on the Kispiox  River?  A  There's a fishing site not far from the village  where — where late Fred White used to fish.  I  remember the spot and my grandmother used to fish  fishing sites?  ansamtu'uts?  there too.  It's not far from  all the fishing site I know.  the village and that's 776  Mary Johnson (for Plaintiffs)  In chief by Mr. Grant  1 Q  These are all the sites that you know of Antgulilbix?  2 A  Yes.  Yes.  3 Q  And you know the sites of other chiefs on the Skeena  4 River too, don't you?  5 A  Yeah.  Yeah.  Yeah.  6 MR. GOLDIE: Excuse me.  Is there a name, My Lord, for the one on  7 the Kispiox?  I missed it.  8 THE COURT: I don't think it was given, if there is one.  9 MR. GRANT:  10 Q  No.  Do you recall, is there a Gitksan name for the  11 one on the Kispiox River that you recall?  12 A  Kispiox River?  13 THE COURT:  The one which Fred White and your grandmother used.  14 THE WITNESS:   Oh, no.  15 MR. GOLDIE: Thank you.  16 MR. GRANT:  17 Q  From what you said yesterday, would it be fair to  18 say — would it be correct that you grew up at fishing  19 sites every year from the time when you were very  20 small?  21 A  Yeah.  22 Q  And could you tell the court what your family would do  23 at the fishing site, what did they do with the fish  24 they caught at the fishing site?  25 A  They dry them and they had a preparation for the  26 wintertime, just enough they know how much they will  27 use.  And they got the deep freeze.  They dug it into  28 the earth and line it with many things like birch  29 bark.  30 Q  Uh-huh?  31 A  And that's where they kept their food, meat and fish.  32 They also hide it from the enemies because our country  33 is rich and they know it, that's why they always  34 attack it in the olden days.  35 Q  When you were growing up, did your family always have  36 a lot of fish? Was there always lots of fish for your  37 family?  38 A  Yeah.  Yeah.  There were — in my time there were  39 no — no welfare and no social assistance and about  40 this time of the year everybody's busy planting  41 potatoes and planting vegetables and they got all  42 their gardens of black currants.  That's why I still  43 like black currents today because my mother grow —  44 everybody grows black currents.  45 Q  Now, are the fish still dried today by the Gitksan?  46 A  Yeah, they still dry it.  47 Q  And can you explain how the fish were dried by your 777  Mary Johnson (for Plaintiffs)  In chief by Mr. Grant  usii  rig the  way  today; is  it1!  s the  rea:  lly shiny,  use  it the fish  e is  too strong.  it's  cottonwood  1 parents and how they are dried today?  2 A  Yeah, first they didn't dry the fish while they were  3 still very fresh, they just leave it overnight or put  4 it through the stream and leave it near the water  5 overnight and the next day then they dress it and  6 smoke it.  If they dry it — if they dress it while  7 they really fresh, they would be hard when they dry,  8 after they dry.  9 Q  And this — they do the same method of  10 fish — of drying the fish in the same  11 that right?  12 A  Yeah.  13 ft  And they got a special wood for smoke,  14 /\     cottonwood tree, and it makes the fish  15 and they don't use that pine.  If they  16 will all turn black.  It's — the smoke  17 So they use one special kind of tree,  18 tree.  19 Q  And those they would get from the territory around the  20 fishing sites or from their territory? The cottonwood  21 trees, where would they get the cottonwood trees from?  22 A  They were always close by everywhere, and not just the  23 cottonwood tree, it's — it's — they call those wood  24 am k'ooxst.  25 Q  And what does that mean?  26 A  When — after they grow really big they call them  27 cottonwood, yeah, they were the same only they were  28 smaller.  29 Q  Did — do you remember trading with the people at  30 Gisgagas, for fish that were at Gisgagas?  31 A  Yes.  32 Q  can you tell the court when that happened and an  33 example of when it happened that you recall and —  34 A  Yeah.  35 Q  — where you were going?  36 A  Yeah, yeah.  When the hunters go out this was still  37 the month of February when the ice is still good, and  38 they pack they toboggans with food, like sugar and  39 flour and rice, lard, tea, and dried — dried berries  40 like peaches.  And when they get to Gisgagas, there  41 was a junction there at — Gisgagas Creek runs into  42 Skeena and they call this saxwhl aks, and that's where  43 they camp, and left they camp and go up to Gisgagas to  44 trade for some dried fish there.  They always got many  45 dried fish there.  They trade it with tea or flour or  46 sugar.  That's what they need because they didn't  47 always go to town, no road at that time, just a trail 778  Mary Johnson (for Plaintiffs)  In chief by Mr. Grant  1 that the horses use.  2 Q  Did you go on such a trip?  3 A  Yes.  4 Q  And who did you travel with when you went up  5 towards —  6 A  My first husband Peter Angus.  We were going up to  7 Moose Creek, Wii minosik territory.  8 Q  And did you go and stay out at Moose Creek with your  9 husband?  10 A  Yes.  Yes.  11 Q  And was he Wii minosik?  12 A  No.  13 Q  Or was he a member of the House?  14 A  He's — he's a member of the House and his name is  15 'Wiis t'is.  16 MR. GRANT:  Can you give that name please to the court?  17 THE TRANSLATOR: 'Wiis t'is, '-W-i-i-s t-'-i-s.  18 THE COURT: That's your first husband's name?  19 THE WITNESS: Yeah.  20 MR. GRANT:  21 Q  And he was a member of the house of Wii minosik; is  22 that right?  23 A  Yeah.  24 MR. GRANT:   That's number?  25 THE TRANSLATOR: Seventy-seven.  26 MR. GRANT:  27 q  Seventy-seven on the list of plaintiffs.  28 A  We pass — I remember we have passed Wii gaak's  29 territory before we get to Moose Creek.  30 MR. GRANT:  What number is that, please?  31 THE TRANSLATOR: Seventy-three.  32 MR. GRANT:  33 Q  And do you recall the — when you say you passed Wii  34 gaak's territory, is there a geographical place you  35 can refer to which was Wii gaak's territory?  36 A  I remember they got a cabin just at the edge of the  37 Skeena River.  38 Q  Okay.  39 A  And one of his boys were there when we — we stopped  40 there for a while and they give us something to eat.  41 Q  You indicated that Wii minosik's territory was in the  42 area of Moose Creek.  Is there any other places that  43 you remember the names of on Wii minosik's territory?  44 A  Yes.  Not very far from Moose Creek there's another  45 creek runs into Skeena and they call this creek Xsi An  46 Dap Matx.  47 mr. GRANT:   I believe 311, but it's — the reference to the 779  Mary Johnson (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. GOLDI  MR.  THE  MR.  THE  MR.  THE  MR.  GRANT  COURT  GRANT  COURT  GRANT  Q  E: You mean — excuse me  the words Anda'ap Matx?  '•  Yes.  So it's —  X-s-i a  Thank you  isn't correct on this one, it's a different  s X-s-i, and then the balance of 311.  -- excuse me. Mv Lord. X-s-i should m  other name isn't cc  place.  It's X-s-i, and then tne Daiance or Jii.  I: You mean — excuse me, My Lord, x-s-i should precede  md then Anda'ap Matx.  )U.  A  Q  A  A  COURT  GRANT:  Q  And I'm not referring to the  reference.  Okay. Was there — is th  that you could just refer us  territory?  Yes.  On this side of Skeena  there's another place, it's  And what — and what is that  mountain or?  It's a nice hunting ground.  Edith — Edith Gawa went the  knows there were a lot of be  lake there, she said, where  When you refer to Edith Gawa  to your — Wilfred Gawa's wi  Yeah. Yeah. She belongs to  : Can we have the name of thi  is one?  right-hand column on that  ere any other place names  to on Wii minosik's  there is — they say  called Gwi luu skeekwit.  , was that a creek or a  I didn't see it and  re once or twice and she  avers there. There is a  the cabin stands.  , are you referring here  fe?  the house of Wii minosik.  s hunting ground if there  Q  A  Q  A  Q  A  MR. GRANT:  Yes, G-w-i-1-u-u, one word, second word is  X-e-e-k-w-i-t.  Did your family also trade fish with the Nishga'a?  No.  They trade — they trade some dried berries to  the Tsimxsan people for dried clams and fish eggs and  seaweed.  They trade their berry, like soap berries,  that what they really like, and they still like it  today.  So that you still trade this today?  Yes.  Soap berries?  Yes.  And soap berries are — they were dried were they?  Yes. When they were dry, but today they put up jams  and they traded with the abalones.  I'm not sure we'll get through the next section,  but I'm prepared to — I'm moving into another area  that's all.  THE COURT:  How do you feel, Mrs. Johnson, can you carry on for 780  Mary Johnson (for Plaintiffs)  In chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR.  THE  MR.  THE  MR.  GRANT  COURT  GRANT  COURT  GRANT  Q  little while?  Yes.  Can I believe that?  I don't think she'll ever say she can't carry on.  Well, let's go to four o'clock if we can.  I'd like to ask you about your territories, that is  the territories of Antgulilbix.  A  Yes.  Q  How many territories does Antgulilbix have within this  territory of the Gitksan?  A  Yes, there's the first one is what the white people  call where the moon shines on, that's Andamhl.  Q  Three-twenty-two on the list.  And can you tell us where that is in relation to  say one of the villages?  A  It's a mountain behind Glen Vowell village and that's  where the log is that I mentioned earlier.  They  logged off the side of this mountain.  Q  When was the side of this mountain logged off?  A  I don't know, maybe a few years ago.  COURT:  How does one spell Glen Vowell?  GRANT:  G-e-1-e-n, one word, V-o-w-e-1-1, second word.  COURT: G-e-1-e-n?  GRANT:  What did I say? Maybe I need the adjournment, My  Lord, G-l-e-n, V-o-w-e-1-1.  COURT:  Right, thank you.  GRANT:  You're asking me too hard questions with English  words.  COURT:  Sorry.  WITNESS:  And below this mountain where the vegetable farm  is, not far from there is the village of Wilt galli  bax.  I'd like to refer to Exhibit 17 for a moment,  please? That last name is 332.  COURT:  Three-thirty-two.  GRANT:  I refer you to the second map at the end at Tab 9 of  Exhibit 17.  COURT: The second map or —  GRANT:  The second — there's two plastic holders with maps  in them.  COURT:  The second one or the second one from the end?  GRANT:  The last one, the very last map.  It's roughly  shaped like this.  COURT:  Yes.  GRANT:  Q  Pie-shaped.  Now, can you recognize this map, and I  THE  MR.  THE  MR.  THE  MR.  THE  THE  MR. GRANT  THE  MR.  THE  MR.  THE  MR.  THE  MR. 781  Mary Johnson (for Plaintiffs)  In chief by Mr. Grant  1 just will give you some pinpoints.  On the top of this  2 map is Kispiox?  3 A  Yes.  4 Q  It says — that's the village there and Glen Vowell?  5 A  Yeah.  6 Q  Now, do you recognize that map, the territory referred  7 to on that map, and I'm asking you about the territory  8 that's in the heavy dark line?  9 A  Yes.  10 Q  Okay.  Now, whose territory is that?  11 A  That's our territory.  12 MR. GRANT:  For the record, My Lord, I folded the bottom half.  13 I folded the bottom half of this under which has the  14 name on it.  15 THE COURT:  Yes.  All right.  16 MR. GRANT:  17 Q  Now, can you show on that map where Andamhl is? And  18 if it's too difficult for you to read the map, you  19 just have to tell me, that's okay.  Can you see  20 Andamhl on the map?  21 A  Is it that one?  22 Q  Okay.  There's a name along the line of the map,  23 referring — along the black line on the right-hand  24 side of this map called Andamhl?  25 A  Oh, yeah.  26 Q  Now, that's the mountain that you're referring to?  27 A  Yes.  28 Q  Now, on the other side of Andamhl, do you know who  29 holds that territory?  30 A  Luutkudziiwas.  31 Q  Do you know how long your territory is from Glen  32 Vowell, that is, if you walked straight back up the  33 mountain from Glen Vowell, how long would it be from  34 where Glen Vowell is here down to the bottom, do you  35 know how long that is?  36 A  Stanley might know because Stanley used to go to  37 Andamhl.  38 Q  Okay.  And Stanley's your brother Tsibasaa?  39 A  Yes.  Yes.  And my father used to take him up there  40 when he was young and showed him where — where they  41 will set the trap.  42 Q  Now, on this map right in the top of the middle going  43 towards Glen Vowell there's this creek with a name on  44 it "Xsu wil galli bax"?  45 A  Yes.  46 q  do you know that creek?  47 a  Yes. 782  Mary Johnson (for Plaintiffs)  In chief by Mr. Grant  1 Q  And —  2 A  It runs into that vegetable farm that I mentioned a  3 while ago and — and the vegetable farm covers that  4 little creek, but as you pass by you could still see  5 the water is bubbling out there.  6 Q  Okay. And then there's a little triangle just behind  7 Glen Vowell and the name Wilt galli bax on that  8 triangle.  Is that where the village that you referred  9 to yesterday was located?  It's right near the creek?  10 A  Yes.  11 Q  Okay.  12 A  It's not far from the vegetable farm where there's a  13 clearing is where I remember I went with my mother  14 when I was smaller.  She's going to pick some  15 blueberries where Wil Gallii Bak used to stand, and  16 when we get there there were no trees growing, they  17 just — just bushes were growing, cottonwood bushes.  18 MR. GOLDIE: I wonder if my friend could tell us whether the  19 vegetable farm is on the — on what side of the road  20 between Hazelton and Kispiox is that farm?  Is it  21 where the old village was or is it between the road  22 and the Skeena River?  23 THE WITNESS:  It's close to the old village, not very far.  I  24 remember there's a trail there before the farmers were  25 there and we — we didn't walk very long when we get  26 to where the old village stands.  27 THE COURT:  Well, is there any dispute about it? My  28 recollection is that when you're driving towards  29 Kispiox it's on the left-hand side, is it not?  30 MR. GRANT:  Yes.  I'm just trying to recall that.  There may be  31 some of it on the right-hand side too, the building is  32 on the left-hand side.  I don't think there's a  33 dispute about that.  34 THE COURT: That highway is not marked on this plan is it, or is  35 it?  36 MR. GOLDIE: Yes.  37 THE COURT:  Is this the highway?  38 MR. GOLDIE: Yes.  39 MR. GRANT:  The black line — you have Sikadook Indian reserve  40 two, and you see the black line going through it and  41 actually going up between Indian and reserve there?  42 That is my understanding of what is the road, a  43 representation of the road.  44 THE COURT:  Is that the road?  45 MR. GRANT:  It's a thin — it's a thin black line, not the heavy  46 dark line.  47 THE COURT:  That's the one that runs towards the river? 783  Mary Johnson (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:  Yes.  There is one that runs towards the river and  bisects the road Sikadook, that's another road, My  Lord, but there's a road that's at the base of it —  THE COURT:  Oh, yes.  MR. GRANT:  — that goes along, and if you follow it back you  can see where it crosses the river on the right-hand  side of the map and then you can see just below  Kispiox where it again crosses the river along the  Kispiox river.  THE COURT:  Yes, right at the village.  MR. GRANT:  Yes.  THE COURT:  Yes.  All right.  So that's the road. All right.  Well, on that happy note of discovery, shall we  adjourn until tomorrow? We have some matter — a  matter to deal with at 9:30 I think.  All right.  Thank you.  We'll adjourn until 9:30 tomorrow morning.  THE REGISTRAR Order in court.  (PROCEEDINGS ADJOURNED TO MAY 29, 1987 AT 9:30 A.M.)  I hereby certify the foregoing to be  a true and accurate transcript of the  proceedings transcribed to the best  of my skill and aj/ility.   /  Tanita S. French  Official Reporter

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