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[Proceedings of the Supreme Court of British Columbia 1988-11-30] British Columbia. Supreme Court Nov 30, 1988

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 9935  A. Tom (For Plaintiffs)  Cross-exam by Mr. Frey 1  Smithers, B. C.  2 November 30, 1988.  3  4 THE REGISTRAR:  Witness, I remind you, you are still under oath.  5 THE COURT:  Mr. McKenzie?  6 MR. MACKENZIE:  My lord, before the cross-examination continues  7 may I take this opportunity introduce your lordship to  8 Mr. Darrell 0'Byrne.  9 THE COURT:  Yes, Thank you.  10 MR. MACKENZIE:  Mr. 0'Byrne practices in Terrace and will be  11 assisting us in these cross-examinations.  And, my  12 lord, I would request leave to leave the court after I  13 finish my remarks and have Mr. 0'Byrne continue in my  14 stead.  15 THE COURT:  You don't have to have leave for that.  An assistant  16 with an independent bar can come and go as they wish.  17 MR. FREY:  Miss Russell is in court, although not gowned,  and  18 she may have something to say on this preliminary  19 matter.  20 MR. MACKENZIE:  I have one other preliminary matter, my lord,  21 and it is this:  We completed the cross-examination of  22 Thomas K. Morris on Monday afternoon.  On Tuesday  23 morning, we received a package of interview notes and  24 some of those notes are -- relate to an interview with  25 Thomas Morris and deal with the territory described in  26 his territorial affidavit.  The notes relate to the  27 territory that was discussed and questioned upon in  28 the cross-examination on Monday.  Therefore, my lord,  29 we apply to reopen Mr. Morris's cross-examination and  30 it's our submission that apart from all the  31 substantive and the other reasons that this would be a  32 convenient -- convenient to do that while we are in  33 Smithers at any time during the last next three days,  34 while all counsel are here, rather than wait for the  35 new year or having him come to Vancouver.  36 My lord, I have further submissions relating to  37 that application but I think my friend has a  38 preliminary response; is that correct?  39 MS. MANDELL:  Well, I advised my friend that I have no knowledge  40 of the delivery of the notes of Thomas K. Morris's  41 interview and I thought this would be an appropriate  42 application to be made before Mr. Grant when he is  43 back in court, certainly tomorrow morning, with Johnny  44 David.  45 MR. MACKENZIE:  My lord, I have no objection to making the  46 application and discussing with Mr. Grant tomorrow,  47 and I would presume it would not cause serious added 9936  A. Tom (For Plaintiffs)  Cross-exam by Mr. Frey 1 inconvenience to  Mr. Morris if he were to be requested  2 to return to Smithers.  I think he lives in Burns  3 Lake -- or, correction, not in Burns Lake but down in  4 the southern lakes area.  5 THE COURT:  All right.  Well, if that's the convenient way to  6 proceed, that's satisfactory.  Mr. Grant will be here  7 tomorrow morning?  8 MS. MANDELL:  Yes.  9 THE COURT:  Where is he today?  10 MS. MANDELL: He is in Moricetown preparing Johnny David.  11 THE COURT:  All right.  Now, I think that I should warn counsel  12 that I cannot sit late this afternoon, I have to go to  13 Vancouver by private plane at 4:30 in connection with  14 some other matters and returning later this evening.  15 So I have to leave promptly at 4 o'clock.  16 MR. MACKENZIE:  My lord, with respect to that, to your  17 lordship's travel arrangements, I wonder if it might  18 be post to discuss were counsel the possibility of  19 doing the remaining cross-examinations this week out  20 of court so that your lordship would not be required  21 to return until Monday.  We don't have an in-court  22 examination scheduled for Friday.  23 THE COURT:  I am in counsels' hands.  If the application has to  24 be heard tomorrow, then I have to come back.  25 MR. MACKENZIE:  Well, my lord, perhaps we can discuss that with  26 counsel and meet your lordship's travel concerns and  27 perhaps have the application Monday.  28 THE COURT:  Well, do counsel want to adjourn and discuss it now  29 or do it at the break?  30 MR. MACKENZIE:  We can do it at the break.  31 THE COURT:  I should say I am quite happy to come back, the  32 plane's been laid on and I can come back in the  33 morning and I would be happy to come back.  If I am  34 not needed here, there are other things I can do in  35 Vancouver, but I have set this time aside and I can be  36 here tomorrow if I am needed.  37 MR. MACKENZIE:  We will advise your lordship later.  3 8 THE COURT:  Thank you.  39  40 CROSS-EXAMINATION BY MR. FREY:  (Continued)  41  42 THE COURT:  Mr. Frey?  4 3 MR. FREY:  44 Q   Mr. Tom, yesterday we were discussing the Harold Price  45 Creek territory.  And you told us yesterday that the  46 territory bordering on the southwest was Gilseyhu  47 territory; is that correct? 9937  A. Tom (For Plaintiffs)  Cross-exam by Mr. Frey 1 A   Yes.  Now, yesterday you gave us the term Mesdzii Yex.  Yes, that's right, Mesdzii Yex is Laksamshu House.  I understood yesterday that that was the name for the  Owl Clan or the Owl Crest; is that correct?  It's a crest also.  All right.  And does the term Mesdzii Yex apply to all  Laksamshu members?  Yes, it's their crest and it's their house, all of  Laksamshu Clan.  And Smogelgem is a Mesdzii Yex chief?  Yes, that's their crest also.  And I am sure it is,  for sure it is theirs.  Sorry?  It's theirs for sure.  And Kloum Khun is an Mesdzii Yex chief?  They are the chiefs in the Mesdzii Yex, Kloum Khun,  Tsaibesa and Smogelgem.  :  I didn't get the name, I am sure I have it on two  pages ago, but what is the spelling of the kind of  chief that Smogelgem and Kloum Khun are?  It's not the type of chief, it's another chief. It's  M-E-S-D-Z-I-I, Y-E-X.  :  All right.  Thank you.  Now, Kloum Khun was Johnny Mack?  Yes.  And he passed away recently?  Yes, it wasn't too long ago.  And has his successor been named?  Yes, one of my nephews, about a year ago, had a smoke  feast and be designated and also there is another one  in Moricetown that's going to be successor to replace  Kloum Khun.  And who are these two individuals?  Suzie Dennis, who is going -- who is designated to be  the successor.  Her name is Tabe Tutghus, and is the  one that is designated to be the successor of Kloum  Khun.  And can I have the spelling for Suzie Dennis's name  that was given?  UYTOR:  T-A-B-E, T-U-T-G-H-U-S.  Now, there was another name you mentioned as an  Mesdzii Yex chief and it was Tsaibesa?  Yes, all the Laksamshu belong to Mesdzii Yex.  Mr. Michell, can I have a spelling for Tsaibesa?  2  Q  3  A  4  Q  5  6  A  7  Q  8  9  A  10  11  Q  12  A  13  14  Q  15  A  16  Q  17  A  18  19  THE  COURT  20  21  22  MR.  FREY:  23  24  THE  COURT  25  MR.  FREY:  26  Q  27  A  28  Q  29  A  30  Q  31  A  32  33  34  35  Q  36  A  37  38  39  40  Q  41  42  THE  TRANS  43  MR.  FREY:  44  Q  45  46  A  47  MR.  FREY: 993?  B-E-S-A.  A. Tom (For Plaintiffs)  Cross-exam by Mr. Frey 1    THE TRANSLATOR:  T-S-A-I-  :  Is Tsaibesa the person that's been designated from  Moricetown?  One of the -- my grandmother was Tsaibesa in Hagwilget  a long time ago and they were also around the area in  Babine also.  Well, I think what his lordship is asking about is  that you referred a couple of questions ago to a  successor to Kloum Khun from Moricetown and I  understand the successor from Moricetown is Suzie  Dennis; is that right?  Suzie Dennis is going to be the successor out in the  Babine area, and the Moricetown people are designating  Pat Pierre to be the successor.  :  As successor to Kloum Khun?  Pat Pierre is going to be designated as successor to  Kloum Khun in Moricetown is what I hear, and his name  was To ghes tai, and there was also an old -- an  elderly person out on the Babine who was To ghes tai  for the Babine area.  His name was Lane William.  Mr. Michell, can we have a spelling for that name?  EATOR:  T-0, G-H-E-S, T-A-I.  :  Thank you.  Just so that I have this right, Pat Pierre is to  become Kloum Khun in Moricetown?  Yes, that's what they talked about in Moricetown  and -- it hasn't happened yet and the same thing with  Suzie Dennis, the feast hasn't taken place yet.  Is Suzie Dennis going to become To ghes tai or is  Suzie Dennis going to become a Babine Kloum Khun?  Yes, she is going to be taking the name Kloum Khun  because she is the daughter to my sister, and she is  also a grandchild of Kloum Khun.  So when the process of feasts is finished, there will  be Kloum Khun in Moricetown, who is Pat Pierre, and a  Kloum Khun in the Babine who is Suzie Dennis?  Yes, that's the way it is.  Now, I am going back to the chief called Tsaibesa, and  that's -- today is that Stanley Wilson?  I guess that's who we call Tsaibesa.  Does he live in  Hagwilget?  I am afraid I don't know where he resides.  You're not certain today whether it's Stanley  Wilson?  I don't know for sure if he is the one called  2  THE  COURT  3  4  A  5  6  7  MR.  FREY:  8  Q  9  10  11  12  13  A  14  15  16  THE  COURT  17  A  18  19  20  21  22  MR.  FREY:  23  THE  TRANS  24  THE  COURT  25  MR.  FREY:  26  Q  27  28  A  29  30  31  Q  32  33  A  34  35  36  Q  37  38  39  A  40  Q  41  42  A  43  44  Q  45  46  47  A 9939  A. Tom (For Plaintiffs)  Cross-exam by Mr. Frey  1  Tsaibesa.  2  Q  3  A  4  Q  5  6  7  8  9  A  10  Q  11  12  A  13  Q  14  A  15  Q  16  A  17  Q  18  A  19  Q  20  A  21  Q  22  A  23  Q  24  25  26  A  27  Q  28  A  29  Q  30  A  31  32  33  Q  34  THE COURT  35  MR. FREY:  36  Q  37  A  38  39  Q  40  A  41  42  43  Q  44  45  46  47  A  Is Tsaibesa a separate house?  No, they are all in the same house, Laksamshu House.  Well, in this lawsuit we have come to use the term  clan as applying to the Laksamshu Clan, and we have a  term in this lawsuit that we have used called house.  And I am wondering whether Tsaibesa is a separate  house from Kloum Khun and from Smogelgem?  They are all sisters and they all belong to one house.  And you're now referring to your grandmother and her  two sisters?  Yes.  And you're talking about your mother's mother?  Yes.  And your mother's mother was Ma'ul, M-A-'-U-L?  Yes.  Mr. Holland, can you pronounce that name for me?  Ma'ul.  Did your grandmother have an English name?  Millie.  Now, Ma'ul is a name in the House of Smogelgem?  Yes, it's a name in Mesdzii Yex.  Well, when you say it's a name in the Mesdzii Yex, you  mean it's a name in the Owl Crest?  And what I am  wondering is, is it a name in the House of Smogelgem?  Yes.  One of your grandmother's sisters was Theresa Grey?  Yes.  And she was in the House of Kloum Khun?  Kloum Khun is in Mesdzii Yex and you keep going in the  different direction.  How many Mesdzii Yex did your  grandmother teach you to ask all these questions?  Today I am here to ask the questions.  :  How are you spelling Grey?  It's spelled G-R-E-Y.  Now, what name did Theresa Grey hold?  Since yesterday, I told you Theresa Grey held the name  Kloum Khun.  Have you not learnt it yet?  Your grantmother's other sister was Rose Brown?  Yes, I have told you also the same thing about five  times since yesterday.  I should know them, I was  raised amongst them.  Well, if you can tell, Mr. Tom, I am trying to follow  his evidence and I am trying to understand this so  that his lordship can understand it as well so he will  have to bear with us.  How many times you ask me these questions -- 9940  :nt,  please  2  3  I  don' t  4  MR.  FREY:  5  6  7  THE  COURT  8  9  10  11  MR.  FREY:  12  Q  13  14  A  15  16  17  Q  18  A  19  Q  20  A  21  Q  22  A  23  Q  24  25  A  26  THE  COURT  27  A  28  THE  COURT  29  MR.  FREY:  30  Q  31  32  33  A  34  35  36  Q  37  38  A  39  40  41  Q  42  43  44  A  45  46  47  Q  A. Tom (For Plaintiffs)  Cross-exam by Mr. Frey 1    THE COURT:  Well, just a  think these  names were given yesterday.  I haven't got a note of  Rose Brown or Theresa Grey yesterday.  The name wasn't given yesterday.  He referred to his  grandmother's sister and he may have given her Indian  name as Kloum Khun but I am not certain of that.  :  Yes, I have three names, Ma'ul, Tsaibesa and Kloum  Khun, but the English names weren't given and I don't  think it's accurate for the witness to say that he has  given this five times.  That isn't so.  That's correct, my lord.  Rose Brown -- do you have an  answer there, Mr. Holland?  He just -- my grandmother's sisters, Kloum Khun,  Tsaibesa is the ones I was talking about all this  time.  And Rose Brown is Tsaibesa?  Yes.  And the three sisters were all in the same house?  Yes, they always had been in the Mesdzii Yex.  I am sorry, I missed the last word?  Mesdzii Yex.  Now, today are Smogelgem, Kloum Khun and Tsaibesa in  the same house?  Yes, that is their house.  :  I'd like to know what house are they all in?  In the Indian, it is called Mesdzii Yex.  :  All right.  Thank you.  So, Mr. Tom, if someone said to you that Kloum Khun  was in a different house than Smogelgem, you would say  they were wrong?  Yes, it wouldn't be right for me if they were to be in  different houses, because in Indian way they all  belong to Mesdzii Yex.  And in the same way it would be wrong if someone said  that Tsaibesa was in a separate house than Smogelgem?  It wouldn't be right for me also if Tsaibesa was in a  different house.  What other house would Tsaibesa  belong to?  Well, I am trying to find that out, Mr. Tom.  Your mother was Lucy Tom and she was in the House  of Smogelgem?  Yes, she belonged to them because she was a grandchild  of Smogelgem.  Johnny Dominic and Lucy Tom were  brother and sister.  Smogelgem was the uncle.  And did your mother also hold the name Ma'ul? 9941  A. Tom (For Plaintiffs)  Cross-exam by Mr. Frey 1 A   No, my mother's  mother was Ma'ul.  2 Q   Now, your father was a Alex Tom and he was Gitdumden?  3 A   Yes.  4 Q   And —  5 THE COURT:  I am sorry the name?  6 MR. FREY:  Gitdumden, it's the Wolf Clan.  Does your lordship  7 need a spelling for that?  8 THE COURT:  No, Thank you.  9 MR. FREY:  10 Q   What house was your father in?  11 A  My father was from up in the Takla area and his uncle  12 was Gil ugh un and then when he passed on, my father  13 was Gil ugh un and he belonged in Cass Yex.  14 MR. FREY:  Can I get a spelling for Gil ugh un?  15 THE TRANSLATOR: G-I-L-,-U-G-H-,-U-N.  16 THE COURT:  We didn't get the house name.  17 MR. FREY:  18 Q   And Cass Yex is the head chief of that House Madeek?  19 A  Madeek and Gil ugh un and Sk'a liil, Bagh K'un, they  20 are the head chiefs of that clan.  21 MR. FREY:  Well, I believe there were two new names there, Mr.  22 Michell.  23 THE TRANSLATOR:  Sk'a liil, S-K-'-A, L-I-I-L and Bagh K'un,  24 B-A-G-H, K-'-U-N.  25 MR. FREY:  My lord, I believe the closest correspondence to the  26 plaintiffs in this lawsuit would be Madeek.  27 THE COURT:  I see.  2 8 MR. FREY:  2 9 Q   Mr. Tom, did you know Donald Grey?  30 A   Yes, I know him.  31 Q   And what clan was he in?  32 A   He is of the Tsayu Clan and they were married because  33 they lived in different areas, different villages when  34 they met one another, and they are Laksamshu and  35 Tsayu.  36 Q   When you say they were married, you mean Theresa Grey  37 and Donald Grey?  38 A   Yes, they were living together when I stayed with  39 them, because she was one of my grandmothers.  40 Q   So was Donald Grey your mother's father?  41 A  My mother's father was a Gilseyhu, her name was Maskii  42 Boo.  He came from the area called Nee ta wi t'ai.  43 MR. FREY:  Well there, both a chief's name and a place name  44 there, Mr. Michell.  45 A   This was his village and that's the way they pronounce  46 it and that is how I pronounce it.  47 THE TRANSLATOR:  Maskii Boo, M-A-S-K-I-I, B-O-0 and Nee ta wi 9942  A. Tom (For Plaintiffs)  Cross-exam by Mr. Frey 1              t'ai, N-E-E, T-  A, W-I, T-'-A-I.  2 MR. FREY:  3 Q   But, in any event, Donald Grey was Tsayu, is that  4 right?  5 A   Yes, Tsayu.  6 Q   What was his chief's name?  7 A   I have been around there for sometime and I had never  8 heard of them having a chief name because he came from  9 west of there and in the Gitsegukla area.  10 Q   Was he adopted into the Tsayu Clan?  11 A   This was a long time ago and I don't know what took  12 place at that time.  13 Q   Now, yesterday I asked you about the Sun Crest, and I  14 am going to ask you now, have you ever heard it said  15 that in previous decades the Sun Crest was a crest of  16 Smogelgem's house and not a crest of the House of  17 Kloum Khun?  18 A   The sun is a crest, it is a crest of the Laksamshu and  19 it's always been like that from generation to  20 generation in time and the same with the houses.  21 Q   So, you have never heard anyone say that it was just  22 Smogelgem's crest?  23 A   The Sun Crest belongs to the Laksamshu, Kloum Khun,  24 Tsaibesa and all of them, it belongs to the Laksamshu  25 and when you go out to Babine area, it's the same  26 there, it belongs to Dinee wiil and Ag'wasa.  And  27 wherever you go in this world, it is their crest.  28 MR. FREY:  Can I have those two Babine names?  29 THE TRANSLATOR:  D-I-N-E-E, W-I-I-L and A-G-'-W-A-S-A.  3 0    MR. FREY:  31 Q   And it's the same with the Owl Crest, that's a crest  32 of all of Laksamshu and it's not just Kloum Khun's  33 crest?  34 A   Yes, that's all the same as with all the other crests.  35 Q   Now, yesterday, Mr. Tom, I just want to remind you of  36 one thing you said yesterday, you said that Johnny  37 Dominic was the only person who taught you regarding  38 his territory but at the same time that you were  39 working with Ben McKenzie.  40 A   Ben McKenzie was with his grandfather and he looked  41 after his grandfather on the territory and when he  42 passed on, that is when my uncle, Johnny Dominic, took  43 over the territory, and then when he passed on that is  44 when I took over.  45 Q   Did Ben McKenzie also learn about the territory from  4 6 Johnny Dominic?  47 A   He learnt from McKenzie, that was his uncle, and 9943  A. Tom (For Plaintiffs)  Cross-exam by Mr. Frey 1              that's why he  on the territory with him and that's  2 where he learnt the territory.  3 Q   Now, I am referring now to the Harold Price Creek  4 territory, and I have a name that I am going to spell  5 and I would like you to try and pronounce it, Mr.  6 Holland.  7 Do you need something to write it down, Mr.  8 Holland?  9 A   I will give it a try.  10 MR. FREY:  Now, the spelling I have is A-L, K-A-N-E-'-T-E.  Now,  11 Mr. Holland, are you able to pronounce that word?  12 A  Al Kane'te.  13 Q   Have you ever heard that name, Mr. Tom?  14 A  Al Kane'te, I have been in that area and it belongs to  15 Dew sum t'suk.  16 MR. FREY:  If we can have that name.  Mr. Michell?  17 THE TRANSLATOR:  D-E-W, S-U-M, T-'-S-U-K.  18 MR. FREY:  19 Q   Is that a Wet'suwet'en chief or a Babine chief?  20 A   Babine.  21 Q   That's a Babine chief.  22 Was that land -- and I am referring now to Al  23 K'anee tai --  24 A   That is within Dew sum t'suk's territory.  25 Q   That territory that we are talking about, was that  26 ever Wet'suwet'en territory?  27 A   No.  28 Q   Now, have you ever heard that Smogelgem's territory at  29 Harold Price Creek, used to belong to Kloum Khun?  30 A   Kloum Khun also used the area, the territory, and in  31 the way our law works is that if somebody is not  32 occupied, if you were to ask them to come and use the  33 territory to support your families, in this way we  34 create employment, much as you would, what you call  35 employment and we do the same thing to support one  36 another.  37 Q   So you have never heard that in previous generations  38 it belonged to Kloum Khun and not to Smogelgem, you  39 have never heard that?  40 A   Yes, he has never heard that he has ever held the  41 territory.  When I was with my uncle in that  42 territory, I knew that Kloum Khun and Peter Grey, they  43 were also using the territory at that time.  44 Q   I am sorry, I missed a name, I knew that Kloum Khun  45 and someone were using the territory?  46 A   Peter Grey.  47 Q   Peter Grey. 9944  A. Tom (For Plaintiffs)  Cross-exam by Mr. Frey 1 Now, Chief  McKenzie held the name Smogelgem?  Yes.  And do you know whether Chief McKenzie was known as  David McKenzie?  I don't think I was born at the time when David  McKenzie was alive.  He could have been the brother of  McKenzie.  I believe that David McKenzie was Johnny  David's father, where they held the territory out in  the Perow area.  That is what I believe that Johnny  David's name is, as it is today.  :  I didn't get the name of that territory?  Perow, P-E-R-O-W.  That's the name on the government  maps, I believe, my lord.  You never knew David McKenzie?  No, I have never seen him.  He passed on when I wasn't  even around yet.  Have you ever heard of a chief called Chief Roosevelt?  I heard of him but I don't know who it would be.  That  was long time ago.  Had you ever heard from your elders that David  McKenzie ran the Hudson's Bay store in Hazelton?  Which David?  McKenzie.  No, I don't know about that.  Now, Mr. Tom, did you know that you're registered as a  member on a trapline along with Thomas Grey Tait?  Yes, I know of that.  Donald, he was Donald Grey's  nephew.  He wasn't really entitled to it when he gave  it back to me.  :  What was the name, Mr. Frey?  Thomas Grey Tait, T-A-I-T.  :  Thank you.  And he was Donald Grey's nephew?  Yes, he was Donald Grey's nephew and Donald Grey came  from the Gitsegukla area.  Was Thomas Grey Tait in a Wet'suwet'en clan?  Yes, at this time Laksamshu clan are all as one, even  with the Gitksan people.  :  Sorry?  Gitksan people.  So, if I understand, Thomas Grey Tait was in the  Gitksan Fireweed Clan?  All I knew is that he was in Hagwilget when I was  staying with my grandmother and also his brother,  Herbert Tait was there and then Peter Grey was also  2  A  3  Q  4  5  A  6  7  8  9  10  11  THE  COURT  12  MR.  FREY:  13  14  Q  15  A  16  17  Q  18  A  19  20  Q  21  22  A  23  Q  24  A  25  Q  26  27  A  28  29  30  THE  COURT  31  MR.  FREY:  32  THE  COURT  33  MR.  FREY:  34  Q  35  A  36  37  Q  38  A  39  40  THE  COURT  41  A  42  MR.  FREY:  43  Q  44  45  A  46  47 9945  A. Tom (For Plaintiffs)  Cross-exam by Mr. Frey 1 there, who was  adopted by and raised by my  2 grandmother.  3 Q   So, you don't know which clan he was in?  4 A   Tommy Tait is Laksamshu.  5 Q   Now, Johnny Dominic was registered on that trapline  6 with Thomas Grey Tait; is that correct?  7 A  My uncle, Johnny Dominic, held that area with the  8 advice of Donald Grey, Tommy Tait was registered on  9 there.  10 Q   And are you aware that Johnny Dominic objected to  11 Tommy Tait being registered on the trapline?  12 A   It wasn't so, he didn't object to it, because he was  13 helping my grandmother, he was entitled to go on there  14 and then when -- later on he transferred it back to  15 me.  16 Q   So, if I understand your evidence, you're not aware  17 that Johnny Dominic made any objection to Tommy Tait  18 being on the land?  19 A   I didn't know about that myself.  After my uncle  20 passed on, Tommy knew about this, that is why he  21 returned the register to me.  22 Q   When did you get back on the register, what year?  23 A   I re-registered it about a year ago but Tommy Tait had  24 made arrangements long before that to have it  25 transferred back to me and on his advice I went to the  26 game warden and I took the papers back to him and I  27 asked him, "Are these the papers that you're talking  28 about?"  And he said, "Yes, I had arranged that for  29 you a long time ago."  And that is when he signed it  30 with Freddy George as a witness and then I took the  31 papers back.  32 Q   Now, are you aware that during the 1960s Johnny  33 Dominic was trying to get Tommy Tait off the trapline  34 and get it transferred to you and your brothers?  35 A   I know of that, we went to the Indian agent and on the  36 advice of Tommy Tait and he told us that it was our  37 own territory, he said, "for you to take it" and that  38 is what we did.  39 Q   When you say "he told us", do you mean Tommy Tait or  40 the Indian agent?  41 A   Yes, it was Tommy Tait.  42 Q   And do you know when that happened, what year?  43 A   I don't know what year it was, but I -- Tommy was the  44 one that told me that and then later he gave the  45 papers back to me.  46 Q   All right.  Now that was after Johnny Dominic's death;  47 is that right? 9946  A. Tom (For Plaintiffs)  Cross-exam by Mr. Frey 1          A   Yes.  2 Q   I am talking about almost 20 years before, I am  3 talking about in the 1960s, and what I am wondering is  4 if you ever heard that back then Johnny Dominic was  5 trying to get the registration away from Tommy Tait  6 and was trying to get it transferred to you and your  7 brothers, did you ever hear about that?  8 A   Yes, I knew of my -- when my uncle told me that I  9 should be included in that registry.  10 Q   And it wasn't until some 20 years later that you were  11 included on the registry?  12 A  All this time, I trapped in the area I didn't see  13 anybody out there and Tommy had told me that "you are  14 entitled to this territory.  So you should trap out  15 there, whenever you feel like" and that is when he  16 returned -- he transferred the register over to me.  17 Q   But he told you that in the the 1980s?  18 A   It could he have been around the 1980s.  How do you  19 know about all of this information you're asking me  20 about?  21 Q   The Indian agent has files on these things.  22 Now, do you know why you didn't get on the  23 registration in the 1960s when Johnny Dominic was  24 trying to get you on the registration?  25 A   I was told, Tommy told me at that time that I was  26 included in the registry, and later on I found out  27 that it wasn't so, so I asked him about it and that is  28 when he told me that I -- the registry would be  29 returned back to me.  30 Q   Now, Johnny Dominic had two daughters, didn't he?  31 A   Yes.  32 Q   And what clan were they?  33 A   Glan tun.  34 THE COURT:  I am sorry?  35 A   Glan tun.  36 MR. FREY:  Do you have a spelling for that, Mr. Michell?  37 THE TRANSLATOR:  G-L-A-N, T-U-N.  3 8    MR. FREY:  39 Q   Is that a Babine clan?  40 A  As I mentioned before that all these clans, Glan tun,  41 Gilseyhu, Laksamshu, Gitdumden, they are clans, they  42 have never changed at all.  43 Q   Well, I have never heard the name Glan tun before.  It  44 may have occurred in evidence.  Can you tell me, Mr.  45 Holland, what clan that is?  Is there an English word  46 for that clan?  47 A   Yes, that's the same as Laksilyu. 9947  A. Tom (For Plaintiffs)  Cross-exam by Mr. Frey 1 Q   Frog?  Frog.  Now, have you ever heard that Johnny Dominic attempted  to will his trapline to his two daughters, have you  ever heard that?  Yes, he wanted them included but traditionally I was  entitled to it and that is why I got the papers back  for it now.  If Johnny Dominic had willed the traplines to his  daughters and left you out, that wouldn't be right  under Wet'suwet'en law?  Yes, that wouldn't have been right at all.  Now, I am going to ask you some questions about the  territory that you described in your affidavits or  affidavit, excuse me.  Now, do you read maps?  I understand maps, but I can't see because my eyes are  not very good.  All right.  Well, then perhaps I can direct your  attention to a certain place, do you know where Blunt  Creek flows in to Harold Price Creek?  Is that the creek that comes from Lots wenii?  You  mention these names in English and I don't know, I  only know the area in my own language.  Mr. Holland, do you know these names in  Wet'suwet'en?  You don't know the names in  Wet'suwet'en?  Some of them are on the affidavit, two  of them are -- perhaps the affidavit could be put to  Mr. Holland and he could work with the Wet'suwet'en  names there.  Now, Mr. Holland the name for Blunt Creek is on page 2  of the affidavit, and I am at paragraph 5 now.  And  you will see that in paragraph 5 there is a  description of the boundary and on the second line  there is a name Xaaz Kwe; do you know where that creek  is, Mr. Tom?  This Xaaz Kwe is a Wet'suwet'en word, other than what  I know, and --  Well, Mr. Tom —  He should finish translating the answer just given.  Ses Kwe or Xaaz Kwe and then there is a creek coming  in from Lots Wenii, that's Laksilyu territory and  there is one that I would call Lots Wenii.  Well, Mr. Tom, I am taking this out of your affidavit,  and in your affidavit, and I am sure Mr. Holland will  help me with the pronunciation here, Harold Price  Creek is referred to to as Ses Kwe.  Ses Kwe is all the way down the territory and there is  2  A  3  Q  4  5  6  A  7  8  9  Q  10  11  12  A  13  Q  14  15  16  A  17  18  Q  19  20  21  A  22  23  24  MR. FREY  25  26  27  28  29  30  Q  31  32  33  34  35  36  A  37  38  Q  39   :  MR. FREY  40  A  41  42  43  Q  44  45  46  47  A 994?  there  where my  uncle --  2  3  4  Q  5  A  6  7  8  9  Q  10  11  12  13  A  14  15  16  17  18  19  20  MR.  FREY:  21  22  THE  TRANS  23  MR.  FREY:  24  25  26  27  28  THE  COURT  29  MR.  FREY:  30  31  32  33  34  35  THE  COURT  36  MR.  FREY:  37  THE  COURT  38  MR.  FREY:  39  Q  40  41  42  A  43  Q  44  A  45  46  47  A. Tom (For Plaintiffs)  Cross-exam by Mr. Frey 1 a big smokehouse  at the  smokehouse there and I have been with him all through  that territory.  Now, is Ses Kwe Harold Price Creek?  White man called it Harold Price Creek but me I call  it Ses Kwe and I have walked through that area and I  was raised through there and I always called it Ses  Kwe.  Now, there is a creek that flows into Harold Price  Creek and this is where you began your description of  the boundary of the territory, and I am going to ask  Mr. Holland again to try and pronounce that creek.  The boundary line goes across and where it starts near  Ses Kwe and the Lots Wenii is a different, that is  Laksamshu people's territory, and this Xaaz Kwe, and I  am not sure of which is a Wet'suwet'en word, and there  is two creeks coming in from Lots Wenii and then  another creek coming in from the other area called  G'itnee Dzel, that also flows in to that creek.  All right Mr. Michell that creek near the end of the  answer.  LATOR:  G-'-I-T-N-E-E, D-Z-E-L.  My lord, if you have the Attorney-General of Canada's  map and if you have Harold Price Creek, the overlays,  between the words Harold and Price if you go right  down the map you will see a relief line of 3,000,  relief figure of 3,000.  :  3,000?  Yes there, an elevation, 4,850 and then immediately  underneath that you will see in much lighter  lettering, a relief line, 3,000, and immediately  underneath that is a creek, running parallel.  That's  the creek I am trying to direct the witness's  attention to.  :  Blunt Creek.  It was not named on this map.  :  I suppose it comes up Blunt Mountain.  All right.  Now, Mr. Tom, when you swore this affidavit did  someone translate it to you from English into Gitksan?  Or excuse me, from English into Wet'suwet'en?  It was read to me in English.  Was it read to you in Wet'suwet'en?  I have never heard of the word Xaaz Kwe but personally  myself I know the area well, I can walk around the  mountain and know every area.  I know where all the  ground hogs are. 9949  A. Tom (For Plaintiffs)  Cross-exam by Mr. Frey 1          Q   Mr. Tom, when  you swore this affidavit, did someone  2 read the affidavit to you in Wet'suwet'en or was it  3 only read to you in English?  4 A   It was read to me in English.  5 Q   Mr. Tom, can you read English?  6 A   If I could read English I would talk to you myself.  7 Q   All right.  Now, because you're not talking to me  8 yourself, when this affidavit was read to you in  9 English, did you understand all the words?  10 A   I didn't understand -- I don't understand, that is why  11 I have a translator.  12 Q   All right.  But when you swore this affidavit, you  13 didn't have a translator?  14 A   Referring to -- if you really want to know for sure, I  15 will take you up there where my uncle's house is and I  16 will show you every hole where a trap has been set,  17 and I will show you where my uncle went and where I  18 went.  19 Q   Mr. Tom, do you remember on May 17th, 1988 in Burns  20 Lake, that you swore this affidavit, do you remember  21 when you swore it?  22 A   Yes.  23 Q   On that day, when you signed your name on this  24 affidavit, did someone read the affidavit to you in  25 Wet'suwet'en or was it only read to you in English?  26 A   It was read to me in Wet'suwet'en and I might have  27 misunderstood the Wet'suwet'en word in there.  28 Q   Who read it to you in Wet'suwet'en?  29 A  Are you referring to translator here and also there is  30 one -- two other persons that was there when I signed  31 this.  32 Q   On May 17th, 1988, Mr. Holland read the affidavit to  33 you in Wet'suwet'en?  34 A   Yes.  35 Q   All right.  36 A   Like I told you before, I may have misunderstood this  37 word at that time.  38 MR. FREY:  I am wondering because we started early --  39 THE COURT:  I think we will take the morning adjournment now,  40 please.  41  42 (PROCEEDINGS ADJOURNED AND RESUMED FOLLOWING RECESS)  43  4 4    THE COURT:  Mr. Frey.  4 5    MR. FREY:  46 Q   Mr. Tom, do you remember back in May of 1988 in Burns  47 Lake when you swore this affidavit, do you remember 9950  A. Tom (For Plaintiffs)  Cross-exam by Mr. Frey 1 that part of the  affidavit was a description of the  boundary of the territory starting at a point and  going around the territory and coming back to that  same point, do you remember that?  Yes, I know.  Now, I understand that you said that you may not have  understood every word in the affidavit; is that  correct?  At this point, I may have misunderstood that one word,  because I can't read it all.  All right.  Now, I am now going to refer you to the  part of the affidavit where you actually describe the  boundary, where you actually go around the territory.  Just tell him that, Mr. Holland.  All right.  Now,  when that was read to you in May of 1988, it was Mr.  Holland that read it to you?  Yes.  Now, Mr. Holland, what I am going to ask you to do  again, I am going to ask you to read the first line  and a half of the territorial description, so I am  going to ask you to read and translate into  Wet'suwet'en, the following words:  "Starting at the  the confluence of the Ses Kwe, (Harold Price Creek)  and Xaaz Kwe (Blunt Creek) "  Now, Mr. Holland, you read the first line and a half  to him just now?  Yes.  Now, Mr. Tom, do you understand what Mr. Holland just  read to you?  Yes.  All right.  He just read to you a passage about two  creeks, where two creeks meet, one of them is Harold  Price Creek and the second one is what the white man  calls Blunt Creek, do you know where he is talking  about?  I know Ses Kwe, there is three creeks coming into it.  There is the three creeks that join in with Ses Kwe,  one coming from Soon Dzel, and the other one -- and  there is one small lake coming from -- one creek  coming from a small lake that's called Mesdzii Delmuh.  Now, my lord, the first word that was used I believe  is found in the affidavit --  :  I don't have a copy of the affidavit.  The first word referred to is under paragraph 7, I  can make it on the transcript, in paragraph 7 it's the  second mountain named.  Now, there is a creek that flows out of the west into  2  3  4  5  A  6  Q  7  8  9  A  10  11  Q  12  13  14  15  16  17  A  18  Q  19  20  21  22  23  24  25  Q  26  27  A  28  Q  29  30  A  31  Q  32  33  34  35  36  A  37  38  39  40  41  MR. FREY:  42  43  THE COURT  44  MR. FREY:  45  46  47  Q 9951  A. Tom (For Plaintiffs)  Cross-exam by Mr. Frey 1 Harold Price  Creek, isn't that right, at the boundary  2 point?  3 A   It flows west.  4 Q   All right.  On the other side, there is a creek that  5 you have mentioned in your affidavit that Mr. Holland  6 has read to you and I will have Mr. Holland pronounce  7 this again, but it's Xaaz Kwe, can you pronounce that?  8 Now, do you know where that creek is?  9 A   I know all the creeks there but Xaaz Kwe is confusing  10 me.  11 Q   All right.  So, today, when Mr. Holland says that name  12 to you, you don't understand the name and you don't  13 know where that creek is?  14 A   He hasn't heard about that, hasn't heard about the  15 name Xaaz Kwe.  16 Q   All right.  And it was Mr. Holland that read you that  17 name in May of 1988?  18 A   I may have misunderstood it at that time and I  19 probably didn't hear it.  20 Q   So, you may have misunderstood it in May of 1988 and  21 you don't recognize the name at all today?  22 A   I may not have heard it.  I haven't heard that name  23 before.  24 Q   All right.  And you don't recognize it today when Mr.  25 Holland says it to you?  26 A   This affidavit was written out and -- but I do know my  27 own territory.  28 Q   All right.  Well, I am just trying to learn about your  29 territory too and the second name that occurs in your  30 affidavit is the name that Mr. Holland has read to  31 you, Xaaz Kwe, or as Mr. Holland will pronounce it --  32 THE COURT:  I am sorry, Mr. Frey.  33 MS. MANDELL:  I was going to object at this point.  We have been  34 around this bush at least eight times and I think my  35 friend has established what the witness knows about  36 this name, he has established what he knew at the  37 time, how the confusion may or may not have occurred,  38 and I think at this point it's just badgering.  39 THE COURT:  Well, I would agree with you that we have been  40 around it and around it, Ms. Mandell, but I have  41 difficulty understanding why there is any difficulty  42 now in identifying the confluence of these two water  43 courses.  The witness says he knows every foot of the  44 territory.  45 MS. MANDELL:  Well, perhaps if that's the problem, the witness  46 says there is three creeks that flow in.  47 THE COURT:  And we've eliminated now the one coming from the 9952  A. Tom (For Plaintiffs)  Cross-exam by Mr. Frey 1 west.  We are  only concerned about the one coming from  2 the east, surely the witness knows what Mr. Frey is  3 talking about now if he knows the territory at all,  4 and I am sure he does.  5 MS. MANDELL:  He then next should be asked what the name of the  6 other creek is and perhaps we can put this matter to  7 bed.  8 THE COURT:  I have think Mr. Frey is trying manfully to get an  9 answer out of him.  You might take Ms. Mandell's  10 suggestion if you are so advised.  11 MR. FREY:  I am going to ask that question but there is another  12 point I want to get to first.  13 Q   This name we are having trouble with today, Mr.  14 Holland, please say that name to the witness?  15 A   Xaaz Kwe.  16 Q   If someone told you that that creek was in Smogelgem's  17 Harold Price Creek territory, if someone said that to  18 you, would they be wrong?  19 A   Yes, I have never heard that name and it wouldn't be  20 right for me.  I know the area because I set traps in  21 there and all throughout that area.  22 Q   Well, you have never heard that name as being one of  23 the places in the Harold Price Creek territory?  24 A   Yes, I wouldn't recognize it because I don't know  25 what's written in here because I don't write English  26 at all.  27 Q   I understand that.  But Mr. Holland has just read you  28 the line and a half we are concerned about.  And that  29 line -- and that has a name in it, the short passage  30 he read to you, and I understand your evidence today  31 is that you don't recognize that name, have I got that  32 right so far?  33 A   Yes, I have told you that I don't know that name  34 though.  35 THE COURT:  And that name is Xaaz Kwe?  36 MR. FREY:  In the affidavit it says X-A-A-Z, Q-W-E, and it's  37 found in the second line of the boundary description.  38 THE COURT:  I think Ms. Mandell's objection is right, he doesn't  39 recognize the name and I don't think you can take it  40 any further than that.  41 MR. FREY:  Well, maybe I will use Ms. Mandell's technique.  42 Q   I am referring you to the southwest corner of the  43 Harold Price Creek territory, do you know where I am  44 talking about?  45 A   I think you're talking about -- we would be talking  46 about the creek coming from Loots Wenii.  47 Q   That's right.  That's the creek I am asking about. 9953  A. Tom (For Plaintiffs)  Cross-exam by Mr. Frey 1          A  Well, that is  what I call it, and you mentioned it  2 differently from what I know.  3 Q   And just so we have this straight, what is your name  4 for that creek?  5 A   Loots wenii t'sanlii.  6 MR. FREY:  Mr. Michell?  7 THE TRANSLATOR:  L-0-O-T-S, W-E-N-I-I, T-'-S-A-N-L-I-I.  8 MR. FREY:  9 Q   Now, that creek runs down into Harold Price Creek,  10 doesn't it?  11 A   Yes, that flows into -- yes, that's the one I was  12 telling you about earlier, except that I -- I have a  13 different name for it.  14 Q   All right.  Now, that creek itself, is that creek in  15 the Harold Price Creek territory?  16 A   Yes, where it runs into Ses Kwe, would be in, within  17 the territory mentioned.  But where it starts from is  18 somebody else's territory.  19 Q   So in other words, if I walked up that creek five  20 miles, that's not Smogelgem's territory?  21 A   Yes, you would be in somebody else's territory by  22 then.  23 Q   And the land on the south side of that creek, that's  24 not in Smogelgem's territory either?  25 A   On the south side of Ses Kwe would be in Smogelgem's  26 territory.  27 Q   No, I mean on the south side of Lots wenii tsanii?  28 A  Where the creek flows into Ses Kwe would be in  29 Smogelgem's territory but where it starts from is  30 somebody else's territory, over the hills.  31 Q   So the land on the south bank of the creek is not part  32 of Smogelgem's territory?  33 A  Where it flows into Smogelgem territory that would be  34 his but anything south of that would not be his, it  35 would belong to the people that you were talking about  36 yesterday.  37 Q   Gilseyhu?  38 A   Yes.  39 Q   Now, pretend we are standing at that point where Loots  40 Wenii flows into Harold Price Creek, and I am going to  41 now direct your attention to the land on the other  42 side of Harold Price Creek, the land on the east bank  43 of Harold Price Creek.  44 A   Yes.  45 MR. FREY:  All right.  My lord, just for your references on  46 Canada's map I am now questioning about the blue  47 shaded area. 9954  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  A. Tom (For Plaintiffs)  Cross-exam by Mr. Frey 1    THE COURT:  Yes.  MR. FREY:  Q   Now, I believe you have told me about these creeks  already, but there is a creek that flows in from the  east almost at the same point where Loots wenii  ts'anlii flows in from the west; is that right?  Can you rephrase that?  Loots Wenii ts'anlii flows from the west into Harold  Price Creek, across the river and just a little bit  further upstream, there is a creek that flows in from  the east, do you know that creek?  There is a creek coming from the east, from Al K'anee  T'ai, that's where Ses Kwe starts and it flows from  the east and there is a series of little creeks  running into that where it starts.  MR. FREY:  Could we have that name, Mr. Michell?  THE TRANSLATOR:  Which one?  MR. FREY:  The creek that flows from the east from —  THE TRANSLATOR:  Ah'1 Gaa Neetaiy?  It's on the affidavit.  MR. FREY:  Where is it?  THE TRANSLATOR:  Areas, A-H-'-L, G-A-A, N-E-E-T-A-I-Y.  MR. FREY:  All right.  That's found in paragraph 7, my lord.  Thank you.  A  Q  A  THE COURT  MR. FREY:  Q  A  Q  A  Q  A  Q  A  A  Now, you were telling us before about three creeks  that ran together, do you recall that?  There is two creeks coming in from the C'etneey Dzel,  and Loots wenii and one creek, Neen lii, do you know  where Neen lii is?  No, I don't know where that one is.  Does that one  come in from the east?  There is a small opening, a field there, there is a  small lake across in there and there is waterfalls  there and that falls is quite high.  But does it come in from the east, does to flow into  Harold Price Creek from the east?  It doesn't come in from the east, it goes through the  waterfalls and then it enters into Ses Kwe.  All right.  If you --  Harold Price Creek or Ses Kwe, comes in from the east,  from Ah'1 Gaa Neetaiy.  I want you to imagine, Mr. Tom, that you're standing  at the point where Loots wenii ts'anlii flows into  Harold Price Creek and I want you to imagine you're  standing on that point on the west bank looking across  Harold Price Creek to the east bank.  There is another creek there up further where that 9955  A. Tom (For Plaintiffs)  Cross-exam by Mr. Frey 1 goes, there is  one coming from Soon Dzel.  2 MR. FREY:  Can I get the spelling for that creek, please?  3 THE TRANSLATOR:  S-O-O-N, D-Z-E-L.  4 MR. FREY:  5 Q   Have you ever heard that the white man calls that  6 Money Creek?  7 A   I never heard it and I wouldn't understand it.  I just  8 know the Indian name for it.  9 Q   All right.  But that creek is across the river from  10 the west bank of Harold Price Creek where we were  11 standing we were standing at the junctions of the two  12 creeks, looking at east bank, and that creek flows in  13 on the east bank; is that right?  14 A   I believe that would be right because there is a lot  15 of creeks there, they come in from all directions  16 there.  17 Q   All right.  If you're standing at the point where  18 Loots wenii ts'anlii flows into the Harold Price  19 Creek, and you are looking across at the east bank, is  20 that Smogelgem's territory there?  21 A   If I am standing at that spot you mentioned, how far  22 am I looking when I -- that creek you're talking  23 about?  24 Q   You are standing where Loots wenii ts'anlii flows into  25 Harold Price Creek, you're standing on the west bank  26 of Harold Price Creek and you are looking across at  27 the east bank of Harold Price Creek, have you got  28 that?  29 A   I mentioned before that there is that creek coming  30 into where it starts, Ses Kwe starts and there is  31 another creek coming into that.  32 Q   That's right.  Now, listen to my question.  If you're  33 standing at that point on the west bank and you're  34 looking over to the east bank, that is Smogelgem's  35 territory over there on the east bank?  36 A   No, I wouldn't be -- wouldn't be his territory.  That  37 would be Dew sum ts'uk's territory?  38 THE COURT:  What did he say?  39 MR. FREY:  We had that spelling before, do you have that word?  40 THE TRANSLATOR:  D-E-W, S-U-M, T-S-'-U-K.  41 MR. FREY:  42 Q   It's not Smogelgem's territory, it's Babine territory?  43 A   Yes.  44 Q   And if someone said that was Smogelgem's territory  45 they would be wrong?  46 A   If anybody said that they would be wrong.  47 Q   Now, Mr. Tom, did you go to an all-clans feast in 9956  A. Tom (For Plaintiffs)  Cross-exam by Mr. Frey 1 Burns Lake in  1987?  2 A   Yes, I was there.  3 Q   And did you address the people at the all-clans feast?  4 A   Yes.  5 Q   All right.  And what did you talk about when you were  6 addressing the people at the all-clans feast?  7 A   Yes, at that time I spoke on the boundary on that  8 territory, because I had just got the papers back for  9 that area, and I spoke on Dew sum ts'uk's territory  10 and the Dinee ts'o K'ees, which is from Chapman Lake  11 on down.  12 MR. FREY:  That last word, Mr. Michell?  13 THE TRANSLATOR:  D-I-N-E-E, T-S-'-O, K-'-E-E-S.  14 THE COURT:  Thank you.  15 MR. FREY:  16 Q   Now, when you say you were talking about the boundary  17 of that territory you mean the Harold Price Creek  18 territory?  19 A   Yes, I spoke on that area wherever I had been.  20 Q   When you say you just got the papers, you're talking  21 about the trapline registration?  22 A   Yes, I was, when I got trapline registries that I was  23 talking about, when I got that back, it was our  24 territory, that is why.  25 Q   All right.  Now, this name that we had spelled for us,  26 which, Mr. Holland, you will help me with, Dinee ts'o  27 K'ees, is that the Babine name for the territory  2 8 around Chapman Lake?  29 A   Yes, old fort.  30 Q   And did you tell them about the boundary that's in  31 your affidavit?  32 A   Yes, I told them about the three people that own  33 territories along there.  And I believe that this  34 affidavit may not be all that accurate along there.  35 Q   Who are the three people that own territory?  36 A   That's the three people would be Dew sum ts'uk, Dinee  37 ts'o k'ees, and the Smogelgem area is the one I have  38 access to now.  39 MR. FREY:  I am not sure if we have all three of those names,  40 Mr. Michell, the first two?  41 THE TRANSLATOR:  Dew sum ts'uk, D-E-W, S-U-M, T-S-'-U-K and  42 Dinee ts'o K'ees, D-I-N-E-E, T-S-'-O, K-'-E-E-S.  4 3 MR. FREY:  44 Q   And what you were saying is that the land to the east  45 of Smogelgem is Babine land and Chapman Lake is Babine  46 land, is that what you were telling me?  47 A   Yes, that would be within their territory from way 9957  A. Tom (For Plaintiffs)  Cross-exam by Mr. Frey 1              back.  2 Q   That's the Babine that you're talking about?  3 A   Yes.  4 Q   Now, was there an agreement reached between the  5 Wet'suwet'en and the Babine regarding the boundary on  6 the east around Chapman Lake?  7 A   Yes, Casimel Williams, who is quite elderly, knew the  8 area around Chapman Lake.  He spoke on that.  9 Q   All right.  Did the agreement regarding the boundary  10 on the east of Smogelgem's territory and around  11 Chapman Lake, did that affect the boundary of  12 Smogelgem's territory at all?  13 THE COURT:  Just a moment, please.  14 MS. MANDELL:  I don't think the witness said there was an  15 agreement, he has just explained that Casimel Williams  16 spoke about the area around Chapman Lake.  17 MR. FREY:  I will ask that question again.  18 Q   I am going to ask the same question I asked before,  19 Mr. Tom:  At the all-clans feast in 1987, did the  2 0 Wet'suwet'en and the Babines come to an agreement as  21 to what the eastern boundary was around Chapman Lake?  22 A   The same area, there was no agreement at that time.  I  23 didn't see it myself, there was no papers drawn up or  24 anything.  25 Q   Well, let me put it this way:  Did the people at the  26 feast agree with the eastern boundary that you  27 described of Smogelgem's territory?  28 A   Yes, the people that had territories along that area  29 had talked on that and they didn't totally agree with  30 everything and there is still going to be talk on it  31 yet.  32 Q   All right.  Now, Mr. Tom, I am moving on to another  33 area.  I just want to go through some of the names we  34 went through yesterday, which are chiefly names in the  35 House of Smogelgem, and I want to make sure that I  36 have got them right and I am talking about chiefly  37 names.  38 A   If you speak to me about the chiefs, you going to ask  39 me about it, I will tell you again.  4 0 Q   All right.  Your name G'ee Yeah Ghun or, as Mr.  41 Holland will pronounce it, that's a chiefly name?  42 A   Yes, that's a chiefly name.  43 Q   And the name Johnny Dominic had, Ghel Yii, that's a  44 chiefly name as well?  45 A   Yes.  He had the name Ghel Yii and G'wis-da.  46 Q   I know that.  Are those both chiefly names?  47 A   Yes, G'wis-da, they are both chiefly names. 995?  A. Tom (For Plaintiffs)  Cross-exam by Mr. Frey 1 Q   And today, no  one holds either of those names; is that  correct?  No.  All right.  There is another name, which Mr. Holland  you will have to help me with, Goo'tseawh?  That name Goo'tseawh comes from Babine and whoever  does good always receives that name.  All right.  Well, just to make sure, my understanding  is that this name is held by Andrew George and it  could be my pronunciation, but can you tell me what  the name held by Andrew George is?  Tsaibesa.  Andrew George holds Tsaibesa?  Yes, he holds that name.  All right.  My lord, just to make sure it's not my pronunciation,  I am going to have Mr. Holland read a name that's in  the interrogatory affidavits sworn by Smogelgem.  Can  you say that name to Mr. Tom?  Is that the name you  have been talking about?  A lady from Babine held that name by the name of Janie  Holland.  Now, is that a name in Smogelgem's house or is that a  Babine name?  Yes, it's also in Smogelgem's house because they all  work as one.  And did Andrew George -- has Andrew George ever held  that name?  I don't think so.  And is that a chief's name in Smogelgem's house?  Yes, it's a chief name.  All right.  And the last name I want to ask you about  is the name your grandmother had, Ma'ul, is that a  chief's name in Smogelgem's house?  Yes, it's a chief name in Smogelgem's house, a sister  to him.  Who holds that name today?  One of my nieces, Suzie Dennis's child, by the name of  Deborah, holds that name now.  Now, are there any names that I have missed that are  chiefs' names in the House of Smogelgem?  You mentioned all the names in -- from Babine that are  Laksamshu clan.  I know an elderly woman in Babine who  has a chief name, Diit nee.  Mr. Michell, could you spell that please?  I was pretty small at that time when she -- but she  passed on in 1936 at the age of 105.  2  3  A  4  Q  5  6  A  7  8  Q  9  10  11  12  A  13  Q  14  A  15  Q  16  MR. FREY  17  18  19  20  21  A  22  23  Q  24  25  A  26  27  Q  28  29  A  30  Q  31  A  32  Q  33  34  35  A  36  37  Q  38  A  39  40  Q  41  42  A  43  44  45  MR. FREY  46  A  47 9959  N-E-E.  A. Tom (For Plaintiffs)  Cross-exam by Mr. Frey 1    THE TRANSLATOR:  D-I-I-T,  Does anyone hold that name today?  Nobody holds that name at this time.  And that name, that's a chief's name in Smogelgem's  house?  Yes, that is a chief name.  Now, did you ever know little Dennis Michell?  Would that be from Moricetown?  That's my understanding but it's -- it's also my  understanding that that was Florence Hall's father?  Yes, he comes from around here.  Did you know him?  I didn't know him, he may be still around.  I knew a  lot of Michells.  Now --  I probably heard of him, I never seen him.  I only  knew Jackie Michell's father, who drowned out in  Babine, around Ses Kwe area.  All right.  Smogelgem has a territory near Wallcott;  is that right?  I don't know anything about Wallcott, I just knew  about the Perow area.  All right.  There is a name that we have been given  for this territory, and I will spell it for you, Mr.  Holland, so that you can pronounce it for Mr. Tom:  C-'-E-D-I-I, T-0-0, T-S-A-N.  Do you want me to read  that to you again?  PRETER:  Yes, please.  C-'-E-D-I-I, T-0-0, T-S-A-N.  Can you pronounce that?  C'edii too tsan.  Have you heard of that territory, Mr. Tom?  I heard the Indians talking about it.  Have you ever been there?  No, I never been there at all.  Have you ever heard the story that that territory was  transferred to Little Dennis Michell because he bought  a gravestone for the Smogelgem before Chief McKenzie?  I don't know the name of the Smogelgem before Chief  McKenzie, but the story I am referring you to, that is  that Smogelgem before McKenzie died, Little Michell  bought hes gravestone and because he bought the  gravestone he got at territory at Wallcott, have you  ever heard that?  Yes, they used to do that a long time ago, they would  give territories in compensation but this specific  2  MR. FREY  3  Q  4  A  5  Q  6  7  A  8  Q  9  A  10  Q  11  12  A  13  Q  14  A  15  16  Q  17  A  18  19  20  Q  21  22  A  23  24  Q  25  26  27  28  29  the inte:  30  MR. FREY  31  Q  32  A  33  Q  34  A  35  Q  36  A  37  Q  38  39  40  41  42  43  44  45  46  A  47 9960  A. Tom (For Plaintiffs)  Cross-exam by Mr. Frey 1 story, I never  heard about.  2 Q   All right.  And in terms of this territory we are  3 talking about, you don't know that much about it?  4 A   No, I don't know it that well.  5 Q   All right.  Now, Leonard George is Smogelgem today; is  6 that correct?  7 A   Yes.  8 Q   And my understanding is that he is a native court  9 worker; is that correct?  10 A   Yes.  11 Q   And I also understand that he used to be a land claims  12 researcher as well, do you know that?  13 A   Yes, I know of that.  14 Q   And I also understand that he used to be a salesman,  15 did you ever hear that?  16 A   Yes, I know of him when he was a salesman because he  17 come down to my place and he tried to sell me a  18 machine that eats dirt, and what the white man called  19 vacuum cleaner, and I told him, I says, no, my  20 forefathers they never use anything like that, when I  21 want to sweep my place out I break a spruce ball and I  22 used that to sweep the place out.  He didn't sell me  23 anything, he just left.  24 Q   Do you know of any other jobs that Leonard George has  25 had, besides the three we have talked about?  2 6 A   No.  27 Q   Where did Leonard George grow up?  2 8 A  Around Telkwa.  2 9 Q   And where does he live now?  30 A   I don't know where he lives now.  Probably lives in  31 the same place.  32 Q   And was Leonard George's father Thomas George?  33 A   Yes.  34 Q   And Thomas George is Gitdumden?  35 A   Yes.  36 Q   And when you say Leonard George grew up in Telkwa, he  37 grew up with his father?  38 A   Yes, I think his father raised him, a long time ago  39 his father became a white man and now as a result of  40 that Leonard then would also be white.  And up to this  41 date, I think he got his status back.  Could be.  42 Q   Leonard George became Smogelgem in 1971; is that  43 right?  44 A   Yes, I know the time.  45 Q   Was there a feast?  46 A   I wasn't present at the time when they had the feast,  47 but I heard about it, but people that would be his 9961  A. Tom (For Plaintiffs)  Cross-exam by Mr. Frey 1 uncles out in  Babine, To ghes tai and G'us tl'ee, Alex  2 Zaa and Abelam Coo.  3 MR. FREY:  Well, Mr. Michell we will have to get the four uncles  4 from Babine?  5 THE TRANSLATOR:  To ghes tai, T-0, G-H-E-S, T-A-I; Alex Z-A-A,  6 G'us Tl'ee, G-'-U-S, T-L-'-E-E, A-B-E-L-A-M, C-'-O-O.  7 MR. FREY:  8 Q   Now, Mr. Tom, why weren't you at the feast?  9 A   I wasn't advised or told about the feast at that time.  10 I didn't know about it.  Any time the clan is going to  11 put up a feast, usually we advise everybody but at  12 that time I wasn't told about it.  13 Q   Where were you living at that time?  14 A   I was living in Burns Lake and then I was working at  15 Houston for Northwood at that time.  16 Q   So, do you have any idea how much Leonard George  17 contributed to get the name Smogelgem?  18 A   His feast took place without my knowing it so I  19 wouldn't know.  20 MR. FREY:  My lord, those are my questions.  Thank you very  21 much, Mr. Tom.  22 THE COURT:  All right.  Thank you.  23 Should we come back early or are we going to be  24 pressed for time?  25 MS. MANDELL:  Well, my lord, I am scheduled to be upstairs this  26 afternoon with Mary Skin and she is a very elderly  27 lady, I don't know whether or not -- she certainly  28 can't go later today.  She has been up since early  29 this morning so it would be my preference that we  30 attempt to start her on time.  Although I should check  31 to see how the upstairs is doing.  32 THE COURT:  What do counsel say about tomorrow?  33 MS. MANDELL:  I haven't had a chance to confer with anybody so I  34 will have to speak to people over the lunch.  35 MR. 0'BYRNE:  I did speak to Mr. Mackenzie during the break and  36 I understand the discussions between counsel would be  37 that there would be a requirement for your lordship to  38 be here tomorrow.  39 THE COURT:  There would or wouldn't?  40 MR. O'BYRNE:  There would.  Just the briefest of moments.  41 THE COURT:  I will proceed on that basis then.  What are you  42 going to do then, Ms. Mandell, do you want to stand  43 this witness down so you can be upstairs or do you  44 need to re-examine?  45 MS. MANDELL:  I won't be long in re-examination.  Perhaps five  4 6 minutes.  47 MR. O'BYRNE:  I am not going to be very long.  I would think, my 9962  A. Tom (For Plaintiffs)  Cross-exam by Mr. 0'Byrne 1 lord, just  some general background questions.  2 THE COURT:  Do you want to stay and do it now?  3 MS. MANDELL:  That would be preferable.  4 THE COURT:  I think we will stay and finish then, if that's  5 convenient.  6  7 CROSS-EXAMINATION BY MR. O'BYRNE:  8  9 MR. O'BYRNE:  10 Q   Mr. Tom, how old are you, sir?  11 A   54.  12 Q   Where did you grow up?  13 A   Babine.  That's where I was born.  14 Q   And did you grow up on Babine Lake?  15 A   Yes.  16 Q   And did you go to school?  17 A   No.  18 Q   Where do you live today?  19 A   Burns Lake.  20 Q   How long have you lived in Burns Lake?  21 A   I was living in Burns Lake when I was working and took  22 sick it would be approximately 20 years now.  23 Q   Are you married?  24 A   Yes.  25 Q   Do you have children?  26 A   Yes.  27 Q   How many children do you have?  28 A   I have nine children and I lost three, just last year  29 I lost one in a car accident, who was 25 years old.  30 There was a total of three that passed on.  31 Q   And you're a grandfather, I take it?  32 A   Yes.  I have eight grandchildren.  33 Q   You did some trapping on the territory you described  34 in your affidavit; is that correct?  35 A   Yes, I trapped in the area when I was pretty young,  36 when I went out with my uncle.  37 Q   How old were you last time you trapped on the area  38 described in your affidavit?  39 A   I was about 30 years old when I got married and then  40 when I went out there and after that the price of furs  41 was down so I didn't do any trapping but I went out  42 there.  43 Q   Have you ever trapped in any other areas?  44 A   Yes, I trapped on the territory mentioned in the  45 affidavit and sometimes I went into another Laksamshu  46 territory belonging to Dyee Coo.  47 Q   Did you have a registered trapline other than in the 9963  A. Tom (For Plaintiffs)  Cross-exam by Mr. 0'Byrne 1 territory  that you have discussed in your affidavit?  2 A   No, the area that I hold register to is where I done  3 most of my trapping.  4 Q   And that's the area described in your affidavit,  5 correct?  6 A   Yes.  7 Q   When was the last time that you were out on the  8 territory you described in your affidavit?  9 A   I was up there last spring.  We drove in there because  10 the whole area is logged out by the forestry.  11 Q   When was the time then before the spring of 1988 that  12 you were last on the territory you described in your  13 affidavit?  14 A   The time before that we drove up the road from Babine,  15 and I showed my children where their grandfather had  16 been trapping, looking into the area.  17 Q   And when was that, please?  18 A   It was a year ago in August.  It was real beautiful up  19 there when you drive up in the mountains.  20 Q   You told us that you worked for Northwood in Houston;  21 is that correct?  22 A   Yes, I worked there.  Yes, at that time the price of  23 furs was way down and that is why I went to work to  24 make a living for my children.  25 Q   And how long did you work for Northwood?  26 A   12 years.  27 Q   And what type of work did you do for Northwood?  2 8 A   I was cleaning up for them and sometimes I would do  29 edging for them and cut-off saw.  30 Q   Other than that type of work, what other type of work  31 have you done?  32 A  When I first worked for them was out in Pendleton Bay,  33 I was boom man and tugboat operator, and pier man and  34 I the pier mand who died, drowned, him and I done the  35 pile driving for them.  36 Q   Now, the affidavit that you swore in May of 1988, it  37 was translated to you by Mr. Holland, correct?  38 A   Yes.  39 Q   And it was a series of or a number of typewritten  40 pages, correct?  41 A   Yes.  42 Q   And when it was read to you, did you make any  43 corrections in the affidavit?  44 A   Yes, referring to your translator, he translated it,  45 read it through for me, and there was no changes made  46 except for the word, one word that's there that I may  47 have overlooked or misunderstood at that time. 9964  one  word that  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  A. Tom (For Plaintiffs)  Re-exam by Ms. Mandell 1 Q   Other than that  you overlooked, did you  tell the translator that there was anything wrong in  the affidavit?  A  At that time, I didn't recognize any mistakes so I  didn't point out any mistakes except that I may have  overlooked this one word at that time.  Q   You did not ask through the translator, then, to have  anything changed in the affidavit; is that correct?  A   No.  Q   Before the affidavit was translated to you, did you  talk to Marvin George about the territories of your  land?  A   Yes, I remember Alfred Joseph talking to me on the  phone and he was talking to me about Dyee Coo's  territory and advised him at that time that it was  different territory all together.  That's what I  remember.  Q   Who did you tell the boundaries of the territory to so  they could put it down in writing for you?  A   Yes, I told Marvin George, with the assistance of a  translator, about the territory.  That is what was  written down.  Q   And did you ever correct the words that Marvin George  wrote down?  A   I told him everything that I knew and I didn't think  that this mistake would appear at that time.  Q   Whose mistake is it, is it your mistake or Marvin  George's mistake?  A   The territory that I was talking about, I tell it the  best way I know how.  It couldn't have been me, it may  have been Marvin that made the mistake in that one  word.  MR. O'BYRNE:  I have no further questions, my lord.  RE-EXAMINATION BY MS. MANDELL:  MS. MANDELL:  Q   You described that as a boy you went into this  territory with your uncle Johnny Dominic.  At that  time, when you went in with him, did you hunt or trap  or fish?  A  When I was with my uncle we went trapping and in the  winter months we would catch steelhead in the creek to  eat.  Q   And where did you stay when you went trapping with  Johnny Dominic?  A   There was a house where the edge of the field C'ee 9965  A. Tom (For Plaintiffs)  Re-exam by Ms. Mandell 1 Ng'heen.  2 THE COURT:  Sorry?  3 A   C'ee Ng'heen.  4 Q   After you got married, did you continue to use this  5 territory for hunting, trapping or fishing?  6 A   I saw -- I continually use it but like I said before,  7 when the price of furs was way down I still went out  8 there but in the fall time used to go hunting moose  9 out there.  10 Q   And where did you stay since you were married, once  11 you went back on to the territory?  12 A   Burns Lake.  13 Q   And did you or did anyone from your family construct  14 any smokehouses on the territory?  15 MR. FREY:  My lord, I am going to have to object.  I didn't ask  16 about fishing and smokehouses and construction of  17 anything on the territory.  I didn't even ask about  18 him going on to the territory.  19 MS. MANDELL:  I think both of them asked about him using the  20 territory.  21 THE COURT:  Certainly Mr. 0'Byrne did.  I think it's opened up  22 by the question about using the territory.  23 A   Yes, like I mentioned before, that when me and my  24 uncle went out there, we had a smokehouse there and  25 that's where we lived.  2 6 MS. MANDELL:  27 Q   And I was asking apart from that smokehouse that you  28 have told us about, did you or your family construct  29 any other smokehouse on that territory?  30 A   No.  31 Q   And have you used the territory throughout your  32 lifetime for picking berries?  33 A   There is a place called Saa wig'us ai, that's where we  34 pick berries and because the woman's picking berries  35 there they call it woman's camp.  36 MS. MANDELL:  I don't think that name appears in the affidavit.  37 THE TRANSLATOR:  S-A-A, W-I-G-'-U-S, A-I.  38 MS. MANDELL:  39 Q   Would you be able to tell us whether you have gone to  40 the territory to either hunt or pick berries or fish,  41 how often in the last 30 years have you gone, could  42 you give us an estimate, do you go every year, every  43 other year?  44 A   Yes, we were able to travel up there by cars and they  45 will go picking berries and around August time we go  46 up in the most to go and hunt for groundhogs.  47 Q   And did you also fish in the area? 9966  A. Tom (For Plaintiffs)  Re-exam by Ms. Mandell 1          A  We didn't go  fishing up there, but in the summertime,  2 around August, we spent a whole month smoking salmon  3 in the Babine area.  4 Q   And if I could ask you again the question:  Over your  5 lifetime, would you go into that territory often, like  6 every year or would you go less frequently?  7 A   Yes, since the forestry built roads in there, we  8 can -- we drive in there and go hunting in there most  9 every year.  10 Q   You mentioned that in 1987 you went to a feast in  11 Burns Lake and there you discussed this territory, did  12 you describe the eastern boundary of this territory at  13 that meeting?  14 A   Yes, I talked, I told them about it, because I knew  15 where the boundary was.  16 Q   And what were the main features that you mentioned to  17 the meeting you were on the eastern boundary?  18 A   Yes, I told them about all the different names, the  19 Indian names that I knew of and these names have been  20 there as long as I can remember and it's been there  21 long before, these names were used long before my time  22 by my ancestors and grandparents.  23 Q   And can you tell us today what those names were that  24 you mentioned at the feast?  25 A   This area that I was talking about, Saa wig'us ai, and  26 a mountain Tsa g'es and then continuing from that  27 mountain there is one called Nee'ats from, continuing  28 from that on the north side it belongs to the Babine.  2 9    THE COURT:  I will have to get those names, Ms. Mandell.  30 THE TRANSLATOR:  T-S-A, G-'-E-S and N-E-E-'-A-T-S.  31 MS. MANDELL:  32 Q   Were there any other major landmarks that you  33 identified at the meeting in describing the eastern  34 boundary of the Babine at Burns Lake?  35 A   Yes, as I mentioned, Ceetney Dzel one time, a long  36 time ago, there was a lady by the name of Rosa went up  37 there with a gentleman friend and she took -- when  38 they killed a cariboo, she broke the horn off and she  39 drove it into the a jack pine, C'enduu.  4 0 Q   And is that a boundary marker now?  41 A   It's just a major landmark.  You asked about a major  42 landmark but the line is inside that.  43 Q   All right.  Did anybody at the meeting at Babine  44 disagree with the way you had described the eastern  45 boundary of this territory?  46 A  When I was talking on that territory, nobody disagreed  4 7 with me. 9967  Ken Muldoe (For Plaintiffs)  Cross-exam by Ms. Koenigsberg 1    MS. MANDELL:  I  have got no further questions.  2 THE COURT:  All right.  Thank you.  I suppose we will have to  3 adjourn -- I think we will all try to get back here as  4 reasonably quickly as we can and we will start when  5 everyone is ready to start, somewhere I would think  6 shortly after 2 o'clock, perhaps.  7  8 (PROCEEDINGS ADJOURNED FOR LUNCH AND RESUMED AGAIN AT 210 P.M.)  9  10 THE COURT:  All right.  Where are we now?  11 MR. MACKENZIE:  It's Tuesday so we must be in Smithers, my lord.  12 Actually, it's Wednesday.  So I think we are still in  13 Smithers.  14 My lord, we discussed this question of your  15 lordship's returning tomorrow with other counsel and  16 I -- the concensus is that we wish to have Johnny  17 David cross-examined in court tomorrow.  He is the  18 witness scheduled tomorrow.  We have estimated a day  19 for his cross-examination.  He is an elderly gentleman  20 and my friends may wish to -- he may wish to have a  21 break and continue Friday morning.  But at the present  22 time, we don't have another witness scheduled for  23 Friday, in court.  24 THE COURT:  All right.  25 MS. MANDELL:  I can confirm that, my lord, we would like Mr.  26 David to come tomorrow.  He is quite elderly and he is  27 reasonably well, it seems, so we would like him to  28 start tomorrow.  And if he does tire tomorrow it may  29 be required that he be stood down and continue on  30 Friday.  31 THE COURT:  Would it help if we started early and even if we  32 have to break early?  Some of these people are better  33 in the mornings than later in the day.  34 MR. RUSH:  I don't think we should change the time to start.  I  35 think they will be here at ten and ready to go.  36 People are coming from Hazelton all the way through so  37 they are expecting to start at ten.  38 THE COURT:  All right.  What are we going to do this afternoon?  39 MR. RUSH:  Yes, we have Mr. Ken Muldoe is next on the schedule,  40 as I understand it.  Call Mr. Muldoe to the witness  41 stand.  42  43 KEN MULDOE, a plaintiff herein,  44 after first being duly sworn  45 testified as follows:  46  47 996?  Ken Muldoe (For Plaintiffs)  Cross-exam by Ms. Koenigsberg 1    CROSS-EXAMINATION  BY MS. KOENIGSBERG:  2  3 MR. RUSH:  I should advise that Mr. Muldoe's affidavit is 606  4 and was tendered on June 20, 1988 and Mr. Muldoe is  5 being tendered for cross-examination now.  6 THE COURT:  Ms. Koenigsberg?  7 MS. KOENIGSBERG:  8 Q   Mr. Muldoe, your chief's name is Delgamuukw?  9 A   That is correct.  10 Q   And there is a house by the name of Delgamuukw?  11 A   Only a chief by the name of Delgamuukw.  12 Q   There is no house by that name?  13 A   There is a house.  14 Q   There is?  And is Delgamuukw the head chief of that  15 house?  16 A   That's correct.  17 Q   And are there other chiefs in that house as well?  18 A   There are several chiefs.  19 Q   And is George Muldoe one of those chiefs?  20 A   That's correct.  21 Q   What is his chief's name?  22 A   Neke.  23 Q   N-E-K-E?  24 A   Correct.  25 THE COURT:  And his name again?  26 MS. KOENIGSBERG:  N-E-K-E.  27 THE COURT:  His English name?  2 8 MS. KOENIGSBERG:  George Muldoe.  29 Q   And is George Muldoe your brother?  30 A   That's correct.  31 Q   And is Earl Muldoe also a chief in the House of  32 Delgamuukw?  33 A   That is correct.  34 Q   And is his chief's name is 'Wii a lax?  35 A   Yes.  36 Q   Is that spelled W-I-I,-A-, L-A-X?  37 A   That's correct.  3 8 Q   And.  39 MR. RUSH:  Sometimes with a W, I think.  4 0 MS. KOENIGSBERG:  41 Q   W-I-I,-A-, L-A-X  sometimes with a W.  And is Earl  42 Muldoe also your brother?  43 A   That is correct.  44 Q   And is Samson Muldoe also a chief in the House of  4 5 Delgamuukw?  46 A   He is a chief.  47 Q   And what is his chief's name? 9969  Ken Muldoe (For Plaintiffs)  Cross-exam by Ms. Koenigsberg 1 A  Waa'a.  2 Q   Is that spelled W-A-A-'-A?  3 A   That's correct.  4 Q   And that's pronounced Waa'a?  5 A  Waa'a.  6 Q   And is Lottie Muldoe a chief in the House of  7 Delgamuukw?  8 A   That's correct.  9 Q   What is the chief's name that she holds?  10 A  Axgii gi'ii.  11 Q   Is that spelled A-X-G-I-I, G-I-'-I-I?  12 A   Close enough.  13 Q   And is Ray Mowatt a chief in the House of Delgamuukw?  14 A   He is a chief.  15 Q   What is his chief's name?  16 A   Hag'e.  17 Q   Can you spell that?  I found at least three spellings  18 for it?  19 A   H-A-G-'-E.  20 Q   And that's pronounced Hag'e?  21 A   Hag'e.  22 Q   And Lloyd Muldoe is a chief in the House of  2 3 Delgamuukw?  24 A   That's correct.  25 Q   And what is his chief's name?  2 6 A   Gan nu Lax ha.  27 Q   And could you spell that for us please?  28 A   Programmes the speller could.  29 MS. KOENIGSBERG:  Miss Howard?  30 THE TRANSLATOR:  G-A-N, N-U, L-A-X, H-A.  31 THE COURT:  Thank you.  32 MS. KOENIGSBERG:  33 Q   Are there any other chiefs, hereditary chiefs, in the  34 House of Delgamuukw that I haven't mentioned?  35 A   There is Haaxw.  36 Q   Could you spell that?  37 A   No, I can't.  3 8 THE TRANSLATOR:  H-A-A-X-W.  39 MS. KOENIGSBERG:  4 0 Q   And who holds that name?  41 A   Charles Olson.  42 THE COURT:  Charles Olson?  43 A   Yes.  44 MS. KOENIGSBERG:  45 Q   Are there any other chiefs?  4 6          A   No.  47 Q   Now, when we -- when I say that Delgamuukw is the head 9970  Ken Muldoe (For Plaintiffs)  Cross-exam by Ms. Koenigsberg 1 chief,  are all of the other chiefs whom we have  2 listed, are they of equal rank in the House of  3 Delgamuukw?  4 A In some circumstances.  5 Q And do any of them have territory separate from that  6 of Delgamuukw?  7 A The only one is shepherd from Delgamuukw, Waa'a.  8 Q Sampson Muldoe?  9 A Right.  10 Q And where is that territory located?  11 A North of Kispiox.  12 Q Now, Albert Tait held the name Delgamuukw before you;  13 is that correct?  14 A That's correct.  15 Q And he died January 18th, 1987?  16 A That's correct.  17 Q And he died unexpectedly, did he?  18 A That's correct.  19 Q And you took the name on January 22nd, 1987; is that  20 correct?  21 A That's correct.  22 Q At the funeral feast for Albert Tait?  23 A That's correct.  24 Q And at that feast, contributions were made and did you  25 make a contribution?  26 A I made a contribution.  27 Q And was that in part for the taking of the name?  28 A That was in part.  2 9 Q And what was your contribution?  30 A Cash contribution was $1600.  31 Q And was there a further contribution in goods other  32 than cash?  33 A There was goods included, above the cash contribution.  34 Q Were they valued at the feast and announced?  35 A They were valued at the feast.  36 Q What was the announced value?  37 A Approximately $500.  38 Q Now, we have heard evidence in this trial that it can  39 take up to seven years for a person to take the name  40 of a head chief, not necessarily seven years but up to  41 seven years, and many feasts; was this quite a short  42 period of time for someone to take a head chief's  4 3 name?  44 A Not necessarily.  45 Q Now, on the plaintiffs' map 9A, are you familiar with  46 this plaintiffs' map?  I am just holding up and  47 showing you an overlay over a number of maps, it's 9971  Ken Muldoe (For Plaintiffs)  Cross-exam by Ms. Koenigsberg 1              been  produced by your counsel in this trial, and it is  2 shown as map 9A; have you seen that?  3 A   I have seen it.  4 Q   On this map, Delgamuukw claims three distinct  5 territories; is that correct?  6 A   That's correct.  7 Q   And just for clarity's sake, or an attempt at clarity,  8 I would just like to describe those territories in  9 relation to one another so we can keep them  10 separately.  The first one I will describe is the most  11 northerly on this map, and it is on the westernmost  12 boundary of the claim area.  And is it sometimes  13 referred to as the Kwinageese territory?  14 A   That's correct.  15 Q   And going south on the map, the next area is one which  16 I think could be described as the Ironsides Creek  17 area?  18 A   That's correct.  19 Q   And that's the English name for a creek for which  20 there is, of course, a Gitksan word, what is that  21 Gitksan word?  22 A  Willi wax.  23 Q   Is that spelled W-I-L-L-I, W-A-X, approximately?  24 A  Approximately.  25 MR. RUSH:  Mr. Pete Muldoe's affidavit it was spelled in the  2 6 second, W-A-X-W.  27 MS. KOENIGSBERG:  28 Q   And the third area on this map, smallest territory  29 claimed could it be described as the Tenas Hill,  30 T-E-N-A-S?  31 A   That's correct.  32 Q   And it is a smaller and the southernmost territory  33 claimed on this map?  34 A   That's correct.  35 Q   You have sworn an affidavit that is Exhibit 606 in  36 these proceedings, that relates only to the Kwinageese  37 territory; is that correct?  38 A   That's correct.  39 Q   And for the record, my lord, and for your assistance,  4 0 Mr. Pete Muldoe gave evidence with regard to the  41 Ironsides Creek territory and the Tenas Hill.  42 THE COURT:  Thank you.  43 MS. KOENIGSBERG:  Territory.  44 Q   Now, before Mr. Tait died, Albert Tait, he swore an  45 interrogatory or an affidavit appending some answers  46 to an interrogatory and you reviewed that  47 interrogatory, did you not? correct.  9972  Ken Muldoe (For Plaintiffs)  Cross-exam by Ms. Koenigsberg 1 A   That's  2 Q   And he swore that interrogatory on August 7th, 1986,  3 do you recall that?  4 A   That's about the date.  5 Q   And subsequently you swore an affidavit appending  6 answers to interrogatories on January 28th, 1987, and  7 you swore them as though you -- the answers given were  8 given by Albert Tait?  9 A   That's correct.  10 Q   And in that interrogatory -- in the interrogatory  11 which you swore, I am just showing you the affidavit  12 itself, and it has affixed to it just one page, but  13 could you identify that as the affidavit which you  14 swore?  15 A   That's the affidavit I swore.  16 Q   I have appended to the document which I showed you,  17 Mr. Muldoe -- maybe I will just put one in front of  18 you -- answer 59(c), and 59(c) there, do you recognize  19 that?  It refers to the boundaries of your house's  20 territory?  21 A   That's correct.  22 Q   Do you see under 59(c) --  23 A   That's right.  24 Q   And it says "see map which is attached as schedule C",  25 and then it says, "our territory also includes a berry  26 picking place where the Combs now live in the Kispiox  27 valley."  28 A   That's correct.  29 Q   And 59(c), I understand, has been marked as an exhibit  30 in these proceedings, it's Exhibit 682 for  31 identification.  32 And could we just mark this affidavit as the next  33 exhibit?  34 THE COURT:  The affidavit and answer?  35 MS. KOENIGSBERG:  With 59(c) attached.  36 THE COURT:  We don't we just call it Exhibit 622.  37 MS. KOENIGSBERG:  682?  38 THE COURT:  Do you wish it to be an exhibit?  39 MS. KOENIGSBERG:  The map itself is marked but I don't think  40 it's marked with the affidavit, at least on our list.  41 THE COURT:  What are you asking to be 682 for identification?  42 This —  43 MS. KOENIGSBERG:  No, the affidavit itself, I think, has been  44 identified or could be made an exhibit proper in these  45 proceedings, and I am just going to make reference to  46 the map.  I don't think we will have to mark it again.  47 THE COURT:  What are you tendering now? 9973  Ken Muldoe (For Plaintiffs)  Cross-exam by Ms. Koenigsberg 1    MS. KOENIGSBERG:  The affidavit of Mr. Muldoe with exhibit —  2 with answer 59(c).  3 THE COURT:  All right.  What's the next exhibit number, please?  4 THE REGISTRAR:  824.  5  6 (EXHIBIT 824:  AFFIDAVIT OF KEN MULDOE SWORN JANUARY 28, 1987)  7  8 MS. KOENIGSBERG:  And just perhaps for completeness, I am just  9 going to show you Mr. Tait's first interrogatory.  And  10 again, I have just -- I just have the affidavit and  11 attached to it 59(c), question and answer 59(c), do  12 you recognize Mr. Tait's signature on that affidavit?  13 A   I recognize it.  14 MS. KOENIGSBERG:  I believe the witness said he recognized it.  15 THE COURT:  All right.  16 MS. KOENIGSBERG:  17 Q   And is the page appended to that affidavit, 59(c), as  18 you recall it from reviewing Mr. Tait's  19 interrogatories?  20 A   I recall it.  21 THE COURT:  Is that already in?  22 MS. KOENIGSBERG:  I don't believe it is.  23 THE COURT:  All right.  And you're tendering it as —  24 MS. KOENIGSBERG:  The next exhibit.  25 THE COURT:  825.  26  27 (EXHIBIT 825:  AFFIDAVIT OF ALBERT TAIT SWORN AUGUST 7, 1987)  28  2 9 MS. KOENIGSBERG:  30 Q   Now the map, which I believe is already marked as  31 Exhibit 682 for identification, I will show you the  32 copy that we had and ask the witness if he can  33 recognize it.  Is this the map which was schedule C?  34 A   That was the original draft copy.  35 Q   That's the map that you saw when you reviewed those  36 affidavits?  37 A   Right.  38 Q   And this map is a map which corresponds with the area  39 that is claimed as the Kwinageese territory; is that  40 correct?  41 A   That's correct.  42 Q   Now, Mr. Muldoe, in this affidavit, in answer to  43 question 59(c), which asks for the boundaries of the  44 territory, and we have this map as a draft of the  45 boundaries of the Kwinageese territory, there is no  46 description of either the claimed area today of  47 Ironsides Creek area or the Tenas Hill area, isn't 9974  Ken Muldoe (For Plaintiffs)  Cross-exam by Ms. Koenigsberg 1              that  correct?  2 A   It's been described by my father in court in  3 Vancouver.  4 Q   Yes?  5 A   It's been entered into the courts.  6 Q   But my question to you is:  In answer to the questions  7 in the interrogatories, the answers to which we have  8 just looked at, where it says:  "What are the  9 boundaries of the territories claimed by this  10 house..."  And it's Delgamuukw we are speaking of, the  11 only territory which was described, whose boundaries  12 were described, was the Kwinageese territory, isn't  13 that correct?  14 A   That's correct.  15 Q   Another territory is mentioned, it's said to include a  16 berry picking place where the Combs now live in the  17 Kispiox Valley, correct?  18 A   That's correct.  19 Q   And there is no other territory described as belonging  20 to the House of Delgamuukw in these interrogatories?  21 MR. RUSH:  Well, I think -- excuse me, I would just like to  22 interrupt.  My friend's question, framed in the way it  23 does, I think would suggest that all of the  24 interrogatories should be put to the witness because  25 the question was, in these interrogatories there are  26 no other territories so described, and my reading of  27 the interrogatories is that that's not so.  I don't  28 know whether the witness's answer would be otherwise  29 but I think he should see the whole of the  30 interrogatories.  31 MS. KOENIGSBERG:  I have no difficulty with that, with putting  32 it in, but rather than getting into that I will  33 confine my question to:  34 Q   The only territory whose boundaries are described as  35 being boundaries is the one described as the  36 Kwinageese territory?  37 A   That's correct.  38 Q   But in addition, in answer to that question, there is  39 another area which is referred to, that is a berry  40 picking place where the Combs now live in the Kispiox  41 Valley?  42 A  We have several other areas that aren't on there but  43 it's been disclosed by my father in Vancouver, fishing  44 areas.  45 Q   But in January of 19 -- I should say in August of  46 1986, and January of 1987, the only boundaries, areas  47 with boundaries claimed by the House of Delgamuukw, 9975  Ken Muldoe (For Plaintiffs)  Cross-exam by Ms. Koenigsberg 1 was the  Kwinageese territory and an area which is not  2 indicated with a boundary as a berry picking place in  3 the Kispiox Valley, that's correct, isn't it?  4 A  All three of them were claimed in one way or another.  5 Q   My question to you is:  That --  6 A   I answered your question regarding boundaries already  7 and it's coming back to me the same again.  I have  8 answered your question.  9 Q   I wanted to be sure that we are very clear about this.  10 Let me just ask you, where is the Combs place in the  11 Kispiox Valley or the berry picking place where the  12 Combs live in the Kispiox Valley?  13 A   It's approximately three miles from Kispiox.  14 Q   Approximately three miles from Kispiox.  15 And is it within any of the claimed areas on map 9A  16 that is claimed by Delgamuukw?  17 A   It is within Waa'a.  18 Q   Within Waa'a?  19 A   Yes.  20 Q   There is no area on 9A ascribed to Waa'a, is there?  21 A   I have to see a different, a bigger map than that.  22 Q   A bigger map?  23 A   Yes.  24 Q   I think we are all handicapped, this is the biggest  25 map any of us has brought but let me put it in front  26 of you and let you look at it.  Admittedly the print  27 is small, I am just pointing to the area that we have  28 described here this morning or this afternoon, the  29 Kwinageese territory is here with the name Delgamuukw  30 on it?  31 A   That's correct.  32 Q   And there is another area with Delgamuukw on it, which  33 we have described as the Ironsides Creek area -- you  34 have just put your finger on that.  And then there is  35 the smaller area just south of that, with Delgamuukw  36 on it?  37 A   That's correct.  38 Q   Is the Combs family or the Combs berry picking area in  39 any one of those three?  40 A   It's in this one here.  41 Q   It's in the southernmost area which we have described  42 as the Tanas Hill area?  43 A   That is right.  44 Q   And you say that area belongs to Waa'a?  45 A  Waa'a, in the House of Delgamuukw.  46 Q   But you say that Waa'a has a separate territory?  47 A   He is in the same house.  It's been amalgamated. 9976  Ken Muldoe (For Plaintiffs)  Cross-exam by Ms. Koenigsberg 1 Q   It's been  amalgamated?  2 A   Yes.  3 Q   So it's just as accurate to say Delgamuukw as Waa'a on  4 this territory?  5 A   Delgamuukw is Waa'a.  6 Q   What did you mean when you said it was a separate  7 territory?  8 A  At one time Waa'a had a separate house, right now it's  9 been amalgamated just like Hag'e.  10 Q   Is it then accurate to say that if the head chief of  11 the house has the authority to direct where the  12 members of that house will hunt, fish or trap or use  13 the territories, that it would be Delgamuukw who would  14 direct people in the Tanas Hill area or would it be  15 Waa'a?  16 A   If would be a consensus of all the chiefs in the House  17 of Delgamuukw.  18 Q   Would any one chief have more authority over that  19 territory than any other?  20 A   I will have the final say.  21 Q   So then, the answer to my question is, that Delgamuukw  22 has precedence in terms of authority over the area  23 known as Tanas Hill?  24 MR. RUSH:  I think his answer was "I will very the final say."  25 MS. KOENIGSBERG:  Well, this is cross-examination, my lord.  26 MR. RUSH:  I know, I wasn't sure whether you were trying to  27 summarize the evidence or whether you were posing a  28 new question.  If it was a summary I think it should  29 be faithful to the answer.  30 MS. KOENIGSBERG:  How about a summary question?  31 THE COURT:  How about a summary answer?  32 MS. KOENIGSBERG:  That would be nice too.  33 A   I practice my authority.  34 MS. KOENIGSBERG:  35 Q   You practice your authority and you practice it over  36 the Tanas Hill area?  37 A   That is correct.  38 THE COURT:  Do I understand you to be saying, Mr. Muldoe, that  39 the Combs Ranch is within the Ironside Creek area?  40 A   No, within the Tanas Hill area.  41 MS. KOENIGSBERG:  The Tanas Hill area, my lord, and it's the  42 southernmost, it's closest to Kispiox.  43 Q   Is that a fair way of putting it?  44 A   That's correct.  45 Q   In fact it would appear on map 9A, if I am correct, to  46 encompass Kispiox; do you have that?  47 THE COURT:  I think — a moment ago but I think I lost it now. 9977  Ken Muldoe (For Plaintiffs)  Cross-exam by Ms. Koenigsberg 1    MS. KOENIGSBERG:  If you can find Kispiox and just move north,  2 you are in the Tanas Hill area designated with the  3 name Delgamuukw on that map.  4 THE COURT:  Yes.  All right.  So Tanas Hill is in the southern-  5 most area marked Delgamuukw, is it?  6 MS. KOENIGSBERG:  Yes, my lord.  7 THE COURT:  That's the one that goes down and includes Kispiox?  8 A   That is correct.  9 MS. KOENIGSBERG:  Yes.  10 THE COURT:  Thank you.  11 MS. KOENIGSBERG:  12 Q   The berry picking place, which is referred to in your  13 interrogatory, in the interrogatory which you signed  14 and which Mr. Tait swore, I didn't mean to make a  15 distinction there, which you swore and Mr. Tait swore,  16 is not meant to encompass the entire area now claimed  17 as the Tanas Hill area, is it?  18 A   Could you repeat that again?  19 Q   Where it says in answer to 59(c) on the interrogatory,  20 where it says a berry picking place where the Combs  21 now live in the Kispiox Valley, that is not meant to  22 encompass all of the area now claimed as what we were  23 referring to as the Tanas Hill area?  24 A   It's part of it.  25 Q   It's part of it.  26 Now, going back to the Kwinageese territory, which  27 is the one which you have sworn an affidavit for, and  28 which is shown on 9A as well as the northernmost  29 territory designated with the name Delgamuukw, did you  30 know Chris Harris?  31 A   Chris Harris is my uncle.  32 Q   Than he held the name Luus?  33 A   That's correct.  34 Q   And he died about 1976?  35 A   Somewhere around there.  36 Q   And you're familiar with a map which Chris Harris  37 drew?  38 A   I am aware of it.  39 MR. RUSH:  What's the exhibit number, please?  40 MS. KOENIGSBERG:  Exhibit 22 for identification.  41 Q   Yes, I think that's the trial exhibit number, because  42 the Neil Sterritt discovery exhibit number is 20.  43 You have seen that map before?  44 A   Not in this version.  45 Q   You have seen a slightly different version?  46 A   Smaller.  Very small.  47 Q   And you were shown this map when you were examined for 997?  Ken Muldoe (For Plaintiffs)  Cross-exam by Ms. Koenigsberg 1              discovery  by Mr. Goldie, do you remember that?  2 A   I don't remember.  3 Q   You don't remember being examined for discovery or you  4 don't remember being shown this map?  5 A   No.  6 Q   I am sorry, you don't remember being shown the map?  7 A   I don't remember seeing it when I was being questioned  8 by Mr. Goldie.  9 Q   When was it that you saw this map or a smaller version  10 of it?  11 A  Maybe three years ago.  12 Q   And who showed you the map?  13 A   I think it was Neil Sterritt.  14 Q   And I am just going to leave that here because it may  15 be easier for you to refer to it in its fuller  16 context.  17 But I have taken the liberty of just copying the  18 part, which I hope I got right, as the part that seems  19 to correspond to the Kwinageese territory.  And I have  20 had photocopied, Mr. Muldoe, the part of this map  21 which includes from where it says on the most -- on  22 the westerly side here, Skawill and then just  23 Skawill/Joogosle'e, Gyolugyet, Tsii Basa'a and further  24 on down, do you see that?  25 A   I see it.  26 Q   Now, do you recognize the area which -- that would  27 correspond approximately to the Kwinageese territory  28 on the Chris Harris map in front of you?  29 A   I recognize it, it's bordered by the Gyolugyet,  30 Joogosle'e and Tsii Basa'a.  31 Q   We don't see when we look at this map the name  32 Delgamuukw, do we?  33 A   No.  34 Q   Is Axgii gii the name that is on the bulk of the area  35 claimed as the Kwinageese territory on 9A?  36 A  Axgii gii was held by the late Delgamuukw before any  37 of these maps were ever made, that's why you see the  38 name Axgii gii on there.  39 Q   I am going to ask you a few questions about that but  40 before I do, does the Kwinageese territory claimed on  41 map 9A also cover the part of the Chris Harris map  42 that shows Gyolugyet coming across the northern  43 section?  44 A   That is not a right map to describe Delgamuukw's  45 territory.  46 Q   All right.  My question to you is:  On Chris Harris's  47 map, if we were to try to identify the area which is 9979  Ken Muldoe (For Plaintiffs)  Cross-exam by Ms. Koenigsberg 1 claimed  as the Delgamuukw-Kwinageese territory on map  9A it would cover the area as ascribed to Axgii gii  and part of the area ascribed to Gyolugyet?  That's correct.  And it's the northern part, the boundary of which, the  northern boundary of which is the Nass River?  That's correct.  And so that would read all of Delgamuukw?  That would be all Delgamuukw.  Is there any other part ascribed to any other house on  the Chris Harris map which is included in the  Delgamuukw-Kwinageese territory?  None.  Now you mentioned that Axgii gii was a name held by  Delgamuukw a long time ago?  Yes, that's correct.  And Fritz Harris held that name, did he?  Fritz Harris?  Different clan.  He didn't hold the name Axgii gii?  No.  Your mother now holds that name?  That's correct.  Who held that name before your mother, do you know?  He said --  Albert Tait.  5SBERG:  He held the name Axgii gii as well as Delgamuukw?  Yes.  And before Albert Tait?  I don't recall.  I am showing you a document which was produced by your  counsel in his genealogy for the House of Delgamuukw.  Have you seen that genealogy before you?  You may have  seen it all spread out.  I have seen it.  Did you review that genealogy?  Not in the sense that you review it to know it.  I  used it for reference.  And did you provide any of the information which is  contained on this genealogy?  Genealogy information was provided by the late  Delgamuukw.  And to your knowledge, is it accurate, this genealogy?  It's fairly accurate.  Let me leave a copy of it in front of you.  On this  genealogy, on page four -- do you have a copy?  Yes, I do, thank you.  2  3  4  A  5  Q  6  7  A  8  Q  9  A  10  Q  11  12  13  A  14  Q  15  16  A  17  Q  18  A  19  Q  20  A  21  Q  22  A  23  Q  24  MR. RUSH  25  A  26  MS. KOEN  27  Q  28  A  29  Q  30  A  31  Q  32  33  34  35  A  36  Q  37  A  38  39  Q  40  41  A  42  43  Q  44  A  45  Q  46  47  MR. RUSH 9980  Ken Muldoe (For Plaintiffs)  Cross-exam by Ms. Koenigsberg 1    MS. KOENIGSBERG:  2 Q It shows -- is that your mother Lottie Harris?  3 A That's correct.  4 Q And it shows her as Axgii gii, and just above that, it  5 shows Solomon Johnson and did he hold the name Axgii  6 gii?  7 A I don't remember.  8 Q Okay.  But you believe that Albert Tait gave this  9 information, is the author of this information that we  10 see on this genealogy?  11 A He is the author of this.  12 Q Yes.  And just below Solomon Johnson, the line on  13 which Solomon Johnson is, is the line where Albert  14 Tait is, do you see that?  Do you see Albert Tait  15 there?  16 A Just below or beside it?  17 Q Just beside it, I see Albert Tait.  Yes, now you have  18 your finger on Albert Tait, Delgamuukw?  It doesn't  19 show Axgii gii as his name there, should it be there?  20 A Depends in what year this genealogy was made.  21 Q Okay.  If you turn over to page eight.  22 A Page eight?  23 Q The last page, eight.  24 Do you see the name Peter Brown about the middle of  25 the page?  26 A Peter Brown?  27 Q Yes.  28 A Yes, I see it.  29 Q And it has Axgii gii under it?  30 A That's correct.  31 Q And did you know Peter Brown?  32 A Not in my lifetime.  33 Q Do you know if he ever held the name Axgii gii?  34 A I wasn't even born.  35 Q You never heard that?  36 A No.  37 Q It doesn't show any relationship lines, if I can put  38 it that way, Peter Brown, do you know how he was a  39 member of the House of Delgamuukw?  40 A Because he he was a Frog.  41 Q Because he was a Frog?  42 A He was Frog Clan.  43 Q Delgamuukw is in the Frog or Lax Seel clan?  44 A Yes.  Lax Seel.  45 Q Do you know what house Fritz Harris is in?  46 A Chris Harris?  47 Q Fritz Harris? 9981  Ken Muldoe (For Plaintiffs)  Cross-exam by Ms. Koenigsberg 1          A   House of  Luus .  2 Q   House of Luus.  And you don't believe that the name  3 Axgii gii was ever in the House of Luus?  4 A   Different clan.  I said that before.  5 Q   Yes.  So, to your knowledge, the name Axgii gii would  6 not be in the House of Luus?  7 A   Never.  8 Q   In any event, at the time that Chris Harris made this  9 map, if he made it within a short time before he died,  10 and he died in 1976, you believe that Albert Tait held  11 the name Axgii gii?  12 A   I believe that he held it, and I also believe that he  13 worked that area and that he built one complete cabin  14 and another uncompleted cabin on it and I know that he  15 had walked from Kispiox to that area.  16 Q   When did your mother take the name Axgii gii?  17 A   I don't recall.  18 Q   Was it before Albert Tait died?  19 A  Well before.  20 Q   Well before.  Might it have been in 1975 or '76?  21 A   I believe she took it when the late -- the former  22 Delgamuukw took -- the former Delgamuukw, Mark  23 Johnson, passed away and Albert Tait took Delgamuukw  24 and my mother took Albert Tait's name which was Axgii  25 gii.  26 Q   On the genealogy on page one it shows Mark Johnson  27 having died in 1954?  28 A   That's about right.  2 9 Q   And so your mother took the name approximately in  30 1954?  31 A   That's right.  32 Q   So, if this map by Chris Harris was made after 1954  33 your mother would have been the holder of the name,  34 Axgii gii?  35 A   Could be.  36 Q   And would Axgii gii have been the head name of the  37 House of Delgamuukw at the time this map was made?  38 This map referring to the Chris Harris map?  39 A   Not that I recall.  40 Q   Would the fact that the name is put on this territory  41 signify that that's the most -- that's the head  42 chief's name?  43 MR. RUSH:  I would object to that question.  I don't think it's  44 within the compass of any of us to know what it would  45 signify, the right -- that fact what the name is.  4 6    THE COURT:  I think that's right.  I think you could frame the  47 question a bit differently. 9982  Ken Muldoe (For Plaintiffs)  Cross-exam by Ms. Koenigsberg 1    MS. KOENIGSBERG:  2 Q   Would you expect that the name being attached to a  3 territory identifying the territory, as signifying  4 that the name is the highest name in the house to  5 which its ascribed?  6 A   No.  7 Q   So we could expect to see -- it would not be unusual  8 to see Axgii gii attributed to an area that belonged  9 to Delgamuukw and Delgamuukw would be the highest  10 chief's name in that house?  11 A   This is just an informational map that was drawn by my  12 late uncle to try and pull things together and whoever  13 had use of that property at that time, his name was  14 put on there.  15 Q   Did Axgii gii have territory separate from that of  16 Delgamuukw at one time?  17 A   Not to my knowledge.  18 Q   Now, the boundary of the Axgii gii territory on the  19 Chris Harris map is shown considerably south of the  20 Nass River, that's correct, isn't it?  21 A   That is wrong.  22 Q   Well it's wrong but it's correct that it's on this  2 3 map, isn't it?  24 A   That's the way it's shown on this map but it's wrong  25 according to our own.  26 Q   And your information is different?  27 A   That's correct.  28 Q   And it shows that Gyolugyet in fact is across the  29 north part of this territory and goes right over to  30 the western boundary of it on the Chris Harris map,  31 that's correct, isn't it?  32 A   That's right.  33 Q   But on map 9A, all of that territory which is ascribed  34 to Gyolugyet and then the most northerly part of the  35 Chris Harris map on 9A is ascribed to Delgamuukw?  36 A   That's correct.  37 Q   Is it fair to say that Chris Harris was a  38 knowledgeable person about boundaries of the Gitksan?  39 A   Knowledgeable.  40 Q   I asked you once before -- maybe I will leave that  41 there so you can refer to it -- I asked you once  42 before if you remembered being examined for discovery  43 by Mr. Goldie with reference to this particular map  44 and you said you didn't remember it?  45 A   Still I don't remember.  46 Q   I am just going to read you some questions and answers  47 on page 27 of that examination for discovery, and ask 9983  Ken Muldoe (For Plaintiffs)  Cross-exam by Ms. Koenigsberg 1              you if  you remember giving or hearing those questions  2 and giving those answers, and I want to ask you what  3 you meant.  And I am beginning at question 219:  4  5 "Q   Going back to Exhibit 20 on Mr. Sterritt's  6 discovery..."  7  8 And if we looked at the Chris Harris map it says  9 exhibit to Sterritt's discovery:  10  11 "The copy of the Chris Harris map, the northerly  12 boundary of the House of Axgii gii, which is now  13 as you have told me is part of Delgamuukw, is  14 south of the Nass River and the name Gyolugyet  15 appears in there.  Is that a house?  16 MR. RUSH: It appears in where?  17 MR. GOLDIE:  Between the — well, it is to the  18 northeasterly side of the boundary of Axgii gii.  19 Q   I want to know if that name is the name of a  20 house?  21 A   It is not within my territory and I cannot  22 answer.  23 Q   I am sorry, I did not catch that.  24 A   It is not within my territory.  I cannot answer  25 whether it is a house or not, that is the  26 question you asked me.  27 Then just stopping there.  28 Do you recall now being asked those questions and  29 giving those answers?  30 A   There was a conversation with Mr. Goldie and Mr. Rush  31 here and -- that is not all of it, also there is the  32 next page to it.  33 Q   Yes, it goes on but for the purposes of my question, I  34 don't think we need to go on.  You go on to answer the  35 that Gyolugyet is Mary McKenzie and so on.  I want to  36 know now if you recall being asked questions and  37 giving answers that had reference to that map.  38 A   I recall that, I recall not answering on someone  39 else's territory.  40 Q   Okay.  My question to you now is:  What do you mean  41 "it is not within my territory and I cannot answer"?  42 And I will just refer you back to the question, which  43 was a lengthy one:  44 "Q   Referring you to the Chris Harris map and  45 referring you to the northerly boundary of the  46 House of Axgii gii, which is now as you have told  47 me a part of Delgamuukw, is south of the Nass 9984  Ken Muldoe (For Plaintiffs)  Cross-exam by Ms. Koenigsberg 1  River and the name Gyolugyet appears in there, is  2 that a house?"  3 Your answer was:  4 "A   It is not within my territory and I cannot  5 answer."  6 What did you mean by that answer?  7 A   It is not within my territory as the map depicts.  8 Q   Okay.  So is it fair to say that you meant that the  9 area ascribed to Gyolugyet at the top is not in your  10 territory?  11 A   Not within my territory with the reference you're  12 using.  13 Q   Okay.  Those are all my questions on that.  14 THE COURT:  I take it what you're saying here, Mr. Muldoe, your  15 territory is not of the Nass to this, this territory  16 you are being asked on this map is south of the Nass  17 and is therefore not in your territory?  18 A  All I am saying that not the territory with a  19 reference that's been used, which is my late uncle's  20 map, it is not in my territory to -- within this map,  21 and the newer maps it is within my territory.  22 THE COURT:  All right.  Thank you.  23 THE COURT:  Mr. 0'Byrne?  24 MS. KOENIGSBERG:  I am finished my examination on this point.  25 THE COURT:  I thought you said you were finished.  26 MS. KOENIGSBERG:  I said I was going to be short but not quite  27 that short.  28 Q   I'd now like to ask you some questions about your  2 9 employment history and where you have lived.  You were  30 born in Port Essington?  31 A   In Haysport.  32 Q   That is near Port Essington?  33 A  Across from there.  34 Q   And you were born in 1937?  35 A   That's correct.  36 Q   And how old were you when you moved back to Kispiox?  37 A  A few months.  38 Q   It's not something that you really remember, is that  39 fair?  4 0 A   No.  41 Q   How long did you live in Kispiox?  42 A  Approximately 20 years.  43 Q   And then I understand you went to Vancouver?  44 A   I went to Vancouver Vocational Institute.  45 Q   You went to the Vancouver Vocational Institute?  46 A   That's correct.  47 Q   To school? 9985  Ken Muldoe (For Plaintiffs)  Cross-exam by Ms. Koenigsberg 1 A   Yes.  2 Q And when was that?  3 A 1958.  4 Q And did you work in Vancouver?  5 A I worked in Vancouver.  6 Q And where did you work?  7 A Johnson Motors.  8 Q Johnson Motors?  9 A Yes.  10 Q And how long did you work there?  11 A Approximately two-and-a-half years.  12 Q And I understand that you trained at Vancouver  13 Vocational Institute as a heavy- and light-duty  14 mechanic?  15 A That's correct.  16 Q And did you work then as a mechanic for Johnson  17 Motors?  18 A I worked as a mechanic for Johnson Motors.  19 Q Did you work as a mechanic after the two-and-a-half  20 years with Johnson Motors?  21 A I worked as a mechanic.  22 Q Where?  23 A Several locations in Vancouver.  24 Q And how many years in all did you work in Vancouver?  25 A Approximately 12.  26 Q 12 years.  That takes us to about 1970?  27 A Yes.  28 Q Did you move back to Kispiox after that?  2 9 A I moved somewhere in there.  30 Q You moved where?  Sorry.  31 A I moved somewhere in that time, 1970, '71.  32 Q And it was back to Kispiox?  33 A That's correct.  34 Q And have you lived in Kispiox since 1970?  35 A I have lived in Kispiox since I moved back.  36 Q And you also have been a commercial fisherman?  37 A I am a commercial fisherman.  38 Q And you still are?  39 A I am still.  4 0 Q And when did you first become a commercial fisherman?  41 A Approximately 20 years ago.  42 Q So, the first time you went commercially fishing you  43 were living in Vancouver?  44 A I was living in Vancouver.  45 Q And did you -- you owned your own boat?  46 A For the first few years I was a crew member of a seine  47 boat. 9986  seine  boat?  2  A  3  Q  4  A  5  Q  6  A  7  Q  8  A  9  THE  COURT  10  A  11  THE  COURT  12  A  13  THE  COURT  14  A  15  MS.  KOENI  16  Q  17  A  18  Q  19  20  A  21  22  Q  23  A  24  Q  25  A  26  Q  27  28  A  29  Q  30  A  31  Q  32  A  33  Q  34  35  36  A  37  Q  38  A  39  Q  40  A  41  Q  42  A  43  44  Q  45  A  46  Q  47  A  Ken Muldoe (For Plaintiffs)  Cross-exam by Ms. Koenigsberg 1 Q   On a  Yes.  Where did you fish?  Coast-wide.  Coast-wide?  Yes.  And when did you first purchase your own boat?  Approximately five years ago.  :  Sorry, five years ago?  Five years ago.  :  A gillnetter or seine boat?  Gillnetter.  :  Gillnetter?  Yeah.  EISBERG:  And where do you fish now?  Coast-wide.  When you say coast-wide, can you give me the outer  boundaries?  From Alaska, Canadian border right down to the border  down Vancouver Island.  And you fished on the west coast of Vancouver Island?  I have been there.  Have you fished in the Fraser?  I fished in the Fraser.  And you also worked for the Department of Indian  Affairs?  That's correct.  And you worked for that department for how many years?  About two years.  And where were you located?  Hazelton.  Hazelton.  Are there any other occupations which you  have held as principal occupations other than the ones  we have discussed?  Chief of the Frog Clan.  Chief of the Frog Clan.  You mean Chief Delgamuukw?  That's correct.  You are also a Kispiox band councillor?  That's correct.  How long have you been a Kispiox band councillor?  I was involved with council for approximately 14, 15  years.  And you still are?  No, I am not.  When did you stop being a band councillor?  About a year ago. 9987  Ken Muldoe (For Plaintiffs)  Cross-exam by Ms. Koenigsberg 1 Q   You  hunted and trapped on the territories of  Delgamuukw?  I have hunted and trapped on those territories, that's  correct.  On all three of the territories which are claimed by  Delgamuukw in this lawsuit?  That's correct.  Have you hunted and trapped in other territories?  Pardon.  Have you hunted and trapped in other territories  within the claim area?  Yes, I have hunted in other claim areas.  You say you have hunted, have you not trapped also?  I have not trapped -- I do not trap on anybody else's.  When did you first go trapping in the Delgamuukw  territories?  Approximately 15 years ago.  :  I am sorry, 15 or 50?  15.  5SBERG:  He might be in the Guinness Book of World  Records if it was 50 years ago.  And 15 years ago you were also working in Vancouver?  I had moved up here, I had been up this way about 15.  About 15 years.  And when you first trapped was it in  the Kwinageese territory?  In the Willuu Wakw territory.  The Ironsides Creek territory?  That's right.  And how often have you been trapping there?  Just about every year.  Every year for the last 15 years?  Sorry?  About every year except for maybe two years.  Okay.  And have you trapped in the Gwinagiist  territory?  I just came from there.  You trapped this year?  I am still there.  We have interrupted your trapping season, have we,  this year?  That's correct.  When was the first time that you trapped in that area?  Oh, about six years ago.  And what about the Tanas Hill area, have you trapped  there?  Members of my family have trapped there.  But you have not?  No.  2  3  A  4  5  Q  6  7  A  8  Q  9  A  10  Q  11  12  A  13  Q  14  A  15  Q  16  17  A  18  THE COURT  19  A  20  MS. KOENI  21  22  Q  23  A  24  Q  25  26  A  27  Q  28  A  29  Q  30  A  31  Q  32  A  33  Q  34  35  A  36  Q  37  A  38  Q  39  40  A  41  Q  42  A  43  Q  44  45  A  46  Q  47  A 99?  Ken Muldoe (For Plaintiffs)  Cross-exam by Ms. Koenigsberg 1          Q   You were  a band councillor of the Kispiox Band in  2 1983?  3 A   That's correct.  4 Q   And you were a councillor when that band applied for  5 financial assistance to the Department of Indian  6 Affairs to set up a dispute resolution group?  7 A  What group?  8 Q   I will call it a dispute resolution.  There were some  9 outstanding disputes within the Kispiox Band over land  10 within the reserves, fishing sites and trapping lines,  11 do you recall that?  12 A   I recall but not in exactly the name that I hear now.  13 Q   It's my name, which was meant to be descriptive.  I am  14 just going to put in front of you two documents which  15 are from the plaintiffs' list 58-12 and 57-97, and  16 looking at the document first, which is plaintiffs'  17 number 57-97, there is a letter there to a Mr. Peter  18 Clark dated June 23rd, 1983 and signed Mr. George  19 Muldoe, who is your brother and who was chief  20 councillor of the Kispiox Band Council in 1983?  21 A   That's correct.  22 Q   And that letter appends as the last page of that group  23 of documents that I have just handed you, a band  24 council resolution; do you see that?  25 A   I see it.  26 Q   And it says:  "Whereas the Kispiox Band Council wishes  27 to settle disputed lands, traplines and fishing sites  28 within the Kispiox Band; and whereas an elders and  29 hereditary chiefs group will be set up as outlined..."  30 I think that should be, "...in a letter to Peter  31 Clark, director of reserves and trusts dated June  32 23rd, 1983, therefore be it resolved that the  33 Department of Indian Affairs transfer to the Kispiox  34 band $10,000 to carry out the proposed programme."  35 And it's said to be subject to an agreement signed  36 July 14, 1981.  You signed that band council  37 resolution?  38 A   I signed it.  39 Q   Was my characterization of the group as one of dispute  40 resolution a mis-characterization do you think?  41 A   No.  42 MS. KOENIGSBERG:  Could this group of documents, which includes  43 the letter from Mr. George Muldoe, which is two pages,  44 and some pages which are appended, which -- there are  45 two pages appended which just seem to be a listing of  46 lots within the reserve which are the subject of  47 dispute and the band council resolution I have just 9989  Ken Muldoe (For Plaintiffs)  Cross-exam by Ms. Koenigsberg 1 read, be  marked as the next exhibit?  2 THE COURT:  What's the next exhibit number, please?  3 THE REGISTRAR:  826.  4  5 (EXHIBIT 82 6: SIX PAGES, FIRST PAGE BLANK, NEXT PAGE  6 LETTER DATED JUNE 23, 1983)  7  8 MS. KOENIGSBERG:  9 Q   And the next document which I handed to you, which is  10 document number 58-12, is another Band Council  11 resolution dated October 24, 1984?   Do you recognize  12 that resolution?  13 A   I recognize my signature on it.  14 Q   And that is a resolution for the continuation of the  15 same programme that we have just heard about?  16 A   That's right.  17 MS. KOENIGSBERG:  Could that be marked —  18 Q   And there is a page appended to it which appears to be  19 a setting out of a monthly honorarium to each of the  20 elders who will participate in the dispute resolution.  21 THE COURT: It's the budget.  22 MS. KOENIGSBERG:  Yes, I believe so.  23 THE COURT:  827.  24 MS. KOENIGSBERG:  Is that correct?  25 A   Yes.  26  27 (EXHIBIT 827: THREE PAGES, FIRST PAGE BLANK, NEXT PAGE  28 BAND COUNCIL RESOLUTION DATED OCTOBER 24, 1984)  29  30 MS. KOENIGSBERG:  31 Q   This was a programme which was successful, was it, for  32 the Kispiox band in terms of resolving disputes?  33 A   One of them.  34 Q   Traditionally, the matters referred to, that is, the  35 allocation of lands, the resolution of disputes over  36 traplines and fishing sites, would have been in the  37 feast hall; is that correct?  38 A   That's correct.  39 MS. KOENIGSBERG:  Those are all the questions I have.   Thank  4 0 you.  41 THE COURT: Mr. 0'Byrne?  42  43 CROSS-EXAMINATION BY MR. O'BYRNE:  44  4 5 MR. O'BYRNE:  46 Q   Mr. Muldoe you were asked some questions about your  47 capacity as a chief councillor, what were the years 9990  Ken Muldoe (For Plaintiffs)  Cross-exam by Mr. 0'Byrne 1              then that you  acted as a councillor in the Kispiox  2 Band?  3 A   I am sorry, I can't -- could you speak a little bit  4 louder or a little bit more clarity?  I have had about  5 75 percent loss of hearing.  6 Q   All right.  You tell me if you can't hear me.  7 A   Okay.  8 Q   What year did you commence in the capacity as a band  9 councillor in Kispiox?  10 A   I remember being a councillor before I left for  11 Vancouver and I was -- that was in 1957, I had to  12 resign.  That was my first year as councillor.  13 Q   And you came back then to Kispiox in the early '70s,  14 did you?  15 A   That's correct.  16 Q   And you, again, took up a role in the Tribal Council  17 that was then ongoing?  18 A   That's correct.  19 Q   It was then known as the Gitksan-Carrier Tribal  20 Council?  21 A   That's correct.  22 Q   You were chairman of a variety of meetings over time;  23 is that correct?  24 A   Sometimes.  25 Q   All right.  I want to direct your attention to a  26 meeting in December of 1981, a meeting of the Gitksan-  27 Carrier Tribal Council held in the Totem Cafe banquet  28 room, you were the co-chairman of the meeting.  There  29 was a discussion on the need of staff in the Hazelton  30 office of the Tribal Council, do you recall that  31 meeting at all?  32 A   I recall it.  33 Q   And do you recall that there was a discussion about  34 whether or not people to be hired should have some  35 preference in being able to speak English?  36 A   Be able to speak English?  37 Q   Or to be fluent in English?  38 A   No.  39 Q   Do you recall some discussion where there was some  40 concern whether there should be a person from the  41 Gitksan tribe and one from the Carrier tribe to  42 eliminate a language barrier?  43 A   One of the objectives.  44 Q   Do you recall saying that there should not be a  45 language barrier, you thought the language barrier had  46 pretty well been overcome by your people?  47 A   Perhaps. 9991  saying  that?  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  Ken Muldoe (For Plaintiffs)  Cross-exam by Mr. 0'Byrne 1 Q   Do you recall  A   That's a long time ago.  Not word for word.  Q   Well, do you recall saying words to that effect?  A  What is the question?  Q   I was asking you whether or not you stated "there  shouldn't be a language barrier, I think that's pretty  well been overcome amongst our people"?  A   I could have said that.  Q   All right.  Now, do you recall a meeting as well of  the Gitksan-Carrier Tribal Council in March of 1972,  at this meeting you were the chairman of the meeting,  and there was some discussion of the Gitksan history  that was being prepared.  Do you recall that?  A   I recall that.  Q   And do you recall there was some concerns about the  Xsan information and the information they were  gathering from the elders?  A   That concern is still there.  Q   What was the concern, do you recall?  A   That the information wasn't going to be made available  to us and it's still locked up.  Q   And you wanted that information because you were  concerned firstly about the Nisga'a Tribal Council  having an overlapping claim in the Gitksan land claim  area; is that right?  A   That's one of them.  There was many concerns.  Q   And another concern was that you wanted this  information that was being gathered at that time in  1972 to assist you in your own land claims within the  Gitksan-Carrier Tribal Council?  A   Perhaps.  Q   Were there other concerns?  A   Perhaps.  Q   Do you recall them?  A   In 1972?  Q   I take it then you don't recall?  A   No.  Q   All right.  Do you recall a meeting of the Gitksan-  Carrier Tribal Council in March of 1973, it was in, I  believe, the high school library, you moved that  discussions be continued on the land claims that had  been under discussion at the meeting and there was as  well discussion amongst the people assembled about the  way that the Gitksan-Carrier Tribal Council and the  people of it should be compensated by way of land  claims; do you recall that?  A   Compensated? 9992  Ken Muldoe (For Plaintiffs)  Re-exam by Mr. Rush 1 Q   Yes.  There was  discussions of royalties and money  2 being paid, do you recall that?  3 A   I remember the meeting.  4 Q   Do you remember stating that cash settlement would be  5 a sell out, arrangements should be made so as to  6 receive compensation on a continual basis for years to  7 come?  8 A  Maybe I said that.  9 Q   Do you recall saying that?  10 A   Pardon?  11 Q   Do you recall saying that?  Do you recall putting  12 forward that any settlement should be on the basis of  13 royalties?  14 A   That's one of the bases.  15 Q   And you put that forward, correct?  16 A   Yes.  17 MR. O'BYRNE: I have no further questions, my lord.  18 THE COURT:  Mr. Rush?  19  2 0 RE-EXAMINATION BY MR. RUSH:  21  22 MR. RUSH:  23 Q   Mr. Muldoe, you were asked some questions about the  24 contributions which you have made at the feast, when  25 you took the name of Delgamuukw.  You were asked the  26 question of what amount of cash contribution did you  27 make and your answer was $1600.  Was this a personal  28 contribution of $1600?  29 A   It was personal.  30 Q   How much cash did your house contribute at the same  31 feast?  32 MS. KOENIGSBERG:  Excuse me, my lord, I object.  I don't think  33 that arises out of my cross-examination.  We are  34 talking about the name and his contribution and there  35 is actually a lengthy document that deals with these  36 contributions but I didn't cross-examine on it.  I  37 don't see what it has to do with my cross-examination.  38 MR. RUSH:  Well, I think it arises — that's the note I had, I  39 made a contribution and the question, I think it's  40 clearly the question is whether or not there is a  41 house, whether Mr. Muldoe in his capacity as a house  42 member, or in his personal capacity, makes  43 contributions and how much money was contributed in  44 respect of the name.  I will ask the same question  45 with respect to the goods.  If anything turns on what  46 his personal contribution is, the evidence earlier has  47 been that the house makes contributions of both cash 9993  cont  ributions  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  Ken Muldoe (For Plaintiffs)  Re-exam by Mr. Rush 1 and goods  in support of the succeeding  chief.  THE COURT:  Well, in view of the fact that there was no mention  in examination in chief, I think you should be allowed  more latitude than would normally be the case in  re-examination.  I think you may proceed.  MR. RUSH:  Q   My question to you is:  Do you recall the cash  contributions made at that feast by members of your  house, that is, the House of Delgamuukw?  A   Our house had two feasts.  Which one are you referring  to, the most recent one, the burial feast or the  headstone feast?  Q   The burial feast?  A   The burial feast, $1600.  Q   Okay.  What was the contribution, do you recall the  contribution made by other house members of goods at  your feast at the burial feast?  A   There was considerable but I don't know the exact  amount.  I would be guessing if I gave you a figure  now.  Q   Was it in excess of $500?  A   It was well in excess of $500.  Q   Thank you.  I want to direct your attention to a map  that there was some examination on, this map, which is  Exhibit 22 and although it's marked for  identification, my lord, it's Exhibit 22 in the  proceedings, you were asked in particular about the  word Giloget, G-I-L-O-G-E-T, which shows in the --  looks to be the northeast, above the northeast dotted  line on this map, where the word Axgii gii, A-X-G-I-I,  G-I-I, and his lordship asked you about the place of  the Delgamuukw territory there as being below or above  the Nass River.  Assuming for the moment that the  place where Nass River is described in this, on this  map, do you see where I am pointing to?  A   Yes.  Q   And assuming for the moment that the dotted line here  is intended to refer to a boundary, is the place, is  the word Giloget, G-I-L-O-G-E-T, in a place that is --  well, is that the right place for the attribution or  description of the territory of Gyolugyet?  A   It's in the right position as far as being a  neighbour.  The same Joogoslee to the north, Giloget  and Tsii Basa'a.  Q   All right.  This map suggests, again, if this is a  boundary that's a correct boundary of Axgii gii goes 9994  Ken Muldoe (For Plaintiffs)  Re-exam by Mr. Rush 1              to this line and  north to the Nass River, is that  2 right?  3 A   That's not right.  4 Q   Was that right, has that ever been right?  5 A   Not in my memory.  6 Q   You were asked about trapping, Mr. Muldoe, and you  7 were asked if you trapped at Kwinageese and your  8 answer was that you trapped there about six years ago.  9 Do other members of your house trap in the Kwinageese  10 territory?  11 A  All the members trap in the Kwinageese territory.  12 Q   All right.  And do you know for how long other members  13 of your house trapped at the Kwinageese territory?  14 A   The former Delgamuukw trapped there.  15 Q   Excuse me, I should have been clearer in my question.  16 I do not mean to say earlier members, I mean to say  17 the present members of your house who are --  18 A   There is my brothers trap up there, my nephews trap up  19 there.  20 Q   How long have your brothers been trapping there?  21 A   12 years.  22 Q   And the question that was put to you by Ms.  23 Koenigsberg, in reference to this document 57-97, just  24 want to be sure that that is in front of you.  And  25 this document is or pertains to a letter to a Mr.  26 Clark dated January 23rd, 1983 and I direct you to  27 your paragraph two of that letter, do you see that,  28 where it says in part:  "The conflict between sections  29 42 to sections 48 of the Indian Act and the hereditary  30 system still enforced by the hereditary chiefs has  31 created problems which cannot be solved by the elected  32 Band Council or through departmental procedures."  Do  33 you recall, Mr. Muldoe, what sections 42 and 48 refer  34 to?  35 A   No.  36 Q   It goes on to say in the same paragraph, and I quote:  37 "The lands affected included surveyed and unsurveyed  38 lots within the Kispiox Indian Reserve boundaries,  39 registered and unregistered traplines and fishing  40 sites."  There is a list attached to that document and  41 it makes reference to lot numbers in Kispiox, is that  42 in the Village of Kispiox, the reserve?  43 A   That's in the Village of Kispiox.  44 Q   And those block references and lot references are to  45 lots in the reserve at Kispiox?  46 A   Kispiox Reserve Number 1.  47 Q   You agreed with Ms. Koenigsberg in reference to this 9995  Ken Muldoe (For Plaintiffs)  Re-exam by Mr. Rush 1 document that  traditionally the resolutions of  2 disputes occurred in the feast hall?  3 A   That's correct.  4 Q   My question to you is:  Do they occur in the feast  5 hall today?  6 A   They still occur.  7 MR. RUSH:  That's it.  8 THE COURT:  All right.  Thank you.  We will adjourn then until  9 10 o'clock tomorrow morning.  10 MR. RUSH:  Thank you, my lord.  11 (PROCEEDINGS ADJOURNED TO THURSDAY, DECEMBER 1, 1988 at 10  12 O'CLOCK A.M.)  13  14  15 I hereby certify the foregoing to  16 be a true and accurate transcript  17 of the proceedings herein to the  18 best of my skill and ability.  19  20  21  22  23  24 Wilf Roy  25 Official Reporter  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47

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