Delgamuukw Trial Transcripts

Cross-Examination on Affidavit of Charlie Austin British Columbia. Supreme Court Mar 17, 1989

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 ,3fn tf]£ ^uprcmr Court of ^ritiel] Columbia  (BEFORE THE HONOURABLE THE CHIEF JUSTICE)  No 0843  Slithers Registry  Smithers, B.C.  March 17. 1989  BETWEEN  AND  DELGAMUUKW, also known as KEN MULDOE,  suing on his own behalf and on behalf  of all other members of the HOUSE OF  DELGAMUUKW, and others,  Plaintiffs;  HER MAJESTY THE QUEEN IN RIGHT OF THE  PROVINCE OF BRITISH COLUMBIA and  THE ATTORNEY-GENERAL FOR CANADA,  Defendants,  CROSS-EXAMINATION ON AFFIDAVIT OF CHARLIE AUSTIN  S. RUSH, Esq;  3.M. MACKENZIE, Esq;  D.A. MACAULAY, Q.C.  Appearing for the Plaintiffs  Appearing for HMQ of the  Province of British Columbia  Appearing for the Attorney-  General of Canada INDEX - WITNESSES FOR THE PLAINTIFFS  AUSTIN, CHARLES  Cross-examination by Mr. Mackenzie  Cross-examination by Mr. Macaulay  Re-examination by Mr. Rush  PAGE  1  15  15 INDEX TO EXHIBITS  Number Description   Page Number  674-1        Affidavit of Charlie Austin sworn March 9,  1989 1  674-2        Application for registration of a trapline,  dated March 13, 1979 of C.Austin 8  674-3        Letter dated February 1, 1987, from Walter  Joseph to Mr. Cox 8  674-4        Band council resolution dated Februaryl , 1977  of Hagwilget Band 8  ii 1  C.   AUSTIN   (Plaintiff)  Cross-exam by  Mr.   Mackenzie  1 March 17,   1989  2 SMITHERS,    B.C.  3  4 (INTERPRETER:  George Holland)  5  6 CHARLIE   AUSTIN,    one   of   the   Plaintiffs  7 herein,   having been  duly   sworn,  8 testified as  follows:  9  10 MR.   RUSH:     Okay.      I  think we  can  get  underway  with   the  11 cross-examination of  Mr.   Charlie Austin  in  respect  of  12 the  affidavit  that was   sworn —   signed on March   the  13 9th,   19 89,   and we will   similarily  be  providing you  14 with a  translation affidavit,   and Mr.   Austin will  be  15 interpreted by  Mr.   Holland.  16  17 CROSS-EXAMINATION  BY   MR.   MACKENZIE:  18 Q       Mr.   Austin,   my   name  is  Mackenzie  and   I represent   the  19 provincial   government.      I'm handing you  an  affidavit  20 dated —   sworn  March 9,   19 89.     Did you  swear   the  21 original   of   that  affidavit?  22 A      Yes,   that's my  affidavit.  23 MR.   RUSH:     What  number  are we  going  to give  that  one?  24 MR.   MACKENZIE:     I'm going  to  follow  the precedent   that we   set  25 this morning.      I would  suggest   that we  use   the  67 4  26 series.  27 MR.   RUSH:     Good.  28 MR.   MACKENZIE:     And  therefore   I would  submit   that  as  Exhibit  29 67 4-1.     The  reason  I  say  674   is   that   that  is   the  3 0 exhibit  number   that  has been given  to  the  affidavit  of  31 William  Simms   sworn June  23,   1988.  32  33 (EXHIBIT 674-1:   Affidavit  of   Charlie Austin  sworn  3 4 March 9,   19 89)  35  36 MR.   MACKENZIE:  37 Q  Mr. Austin, was that affidavit translated to you  3 8 before you swore it?  3 9 A  Yes, it was translated.  40 Q  And who translated it for you?  41 A  Referring to your translator.  42 Q  And in your affidavit, paragraph 7, you adopt certain  43 paragraphs from William Simms' affidavit which is  44 Exhibit 67 4; is that correct?  45 A  Yes. That is right.  46 Q  Yes.  You adopt paragraphs 5,7, 8 and 9 and 10 of  47 William Simms' affidavit; correct? 2  C.   AUSTIN   (Plaintiff)  Cross-exam by  Mr.   Mackenzie  1 A Yes,   that's what  happened.  2 Q You  do  not  adopt  paragraph 6   of William  Simms'  3 affidavit?  4 A That's — it's not included, but that's part of —  5 it's not included, but it's part of the affidavit.  6 Q And you speak about the territory at Burns Lake in  7 your affidavit?  8 A Yes.  9 Q And you were instructed by your grandfather Johnny  10 Sebastian about that territory?  11 A Yes.  He was the first one to instruct me on that  12 territory.  13 Q And you were not instructed by Burns Lake Tom?  14 A No.  15 Q So therefore in paragraph 8 of Willie Simms* affidavit  16 he speaks about Burns Lake Tom.  You want to change  17 that name to your grandfather Johnny Sebastian?  18 A Willie — part of Willie Simms' affidavit remains the  19 same, but Johnny Sebastian was my instructor.  20 Q What is your Wet'suwet'en chief's name?  21 A Ka'kal, Axdii Woo Giikxw.  22 MR. MACKENZIE:   Okay.  Do you want spellings for those?  23 MR. RUSH: K-a-'-k-a-l is the first, and the second is  24 A-x-d-i-i, new word, W-o-o, new word, G-i-i-k-x-w.  2 5 MR. MACKENZIE:  26 Q And what   is   the  name  of  your  house?  27 A G'en egh l_a Yex.  28 MR. RUSH: G-'-e-n, new word, e-g-h, new word, .1-a, Y-e-x.  29 MR.   MACKENZIE:  3 0                       Q What   is   the   name  of  your  clan?  31                       A Laksilyu.  3 2 Q What  are  the  names  of   the  chiefs   in your  house?  33 A Am  I  going  to mention all   the  names?  3 4 Q Mention  some  of   the  names.  35 A Hagwilnegh,   Maxlaliis.     That was  my mother's  name.  36 MR.   RUSH: M-a-x-1-a-l-i-i-s.  37 THE WITNESS:       Tse'got.  3 8 MR.   RUSH: T-s-e-'-g-o-1.  3 9 MR.   MACKENZIE:  40 Q Fine.     Oh,   sorry?  41 A Marian holds   that  name  now.      It's  —   that's my  sister.  42 Q Who* s   the  highest  chief   in your house?  43 A Hagwilnegh.  44 Q What  are   the  names  of   the  houses  in your  clan?  45 A Our house  is  G'en egh l_a Yex,   there's also Tse  kai  kal  46 kai  yex.  47 MR.   RUSH: That was   the  third one   of   this morning.     T-s-e  k-a-i 3  C.   AUSTIN   (Plaintiff)  Cross-exam by  Mr.   Mackenzie  1 k-a-1  k-a-i  y-e-x.  2 MR.   MACKENZIE:  3 Q       Are   there  any  other  houses   in your  clan?  4 A       I mentioned  the Laksilyu  names,   but   there's  another  5 one   I just   can't   seem  to mention  it yet.  6 Q       Which house  is  chief  Gidum  Skanist?  7 A       G'en egh  la Yex.  8 Q  Who1s the highest Chief in the Laksilyu clan?  9 A  The way it is now is Hagwilnegh is the highest in the  10 clan.  11 Q       When did you  receive   the  chief's  name Ka'kal?  12 A       It was  after my  father passed away  in   '67.      It was  a  13 while  later.     About   '6 8   is when  there was  a  grave  14 stone  feast and  that's when I paid for  it  and my  15 relatives within  the  clan helped me.  16 Q       And how much  did you pay  for   the   name?  17 A       It was  some  time ago.     It's been a while  now,   but all  18 material   goods,   food,   and  then also  there was  a  19 blanket and cedar headband as  part  of   this,   the  20 regalia,   and cedar  bracelets,   and apron,   and  the   total  21 of   all   the  expenses when  it was  tallied up was  22 approximately   $15,000.      It may  have  been more.  23 Q       Who held  that  name before you?  24 A       My  father held  that  name.  25 Q       And what  clan  is your  father?  26 A       He was  also Laksilyu.  27 Q       And what  clan was your mother?  2 8 A       She was  also Laksilyu.  29 Q       When  did you  receive   the  chief's  name Axdii  Goo —  30 Axdii Woo Giikxw,   sorry?  31 A       It was   in between   the  50's  and 60's.     I didn't have   it  32 written down and  it's  hard  for me   to  remember   that  far  33 back.  3 4 Q  And did you make any contributions for that name?  3 5 A  The same thing also took place there.  There was a  36 large gathering and there was material goods and a lot  37 of money being spent there also.  3 8 Q  Do you recall how much money you spent for that name?  39 A  I can't remember.  That was also written down.  It was  40 approximately 12, $1,500 that I contributed, and they  41 also — they — a lot of money is spent when the guest  42 chiefs that are seated, when you take the name you are  43 renamed, and a lot of money is spent on that.  44 Q  Did you take that name at a feast?  45 A  Yes.  46 Q  And the contributions at that feast were not recorded?  47 A  Traditionally the invited guests that are seated in C.   AUSTIN   (Plaintiff)  Cross-exam by  Mr.   Mackenzie  1 the  feast,   they  are witnesses  to what  takes  place  and  2 they  are witness   to  the   transactions,   and  3 traditionally  you  didn't  need to  record anything.  4 Q       So at   that  feast you  didn't write  down  the  amounts  5 which were  contributed?  6 A       The  only  thing —   the  only   thing   that was  recorded  is  7 that when   the  collection  takes  place  it was   tallied up  8 before  it was mentioned in  the  feast,   and   I may  have  9 had  that,   but  our  house  burnt  down  one   time  and  that  10 probably  burnt  along with  it.  11 Q       When did your  house  burn down?  12 A       It was  around   '58 when  it  burnt.  13 Q       Now,   you  are   next   in line   to  take   the  name Gidum  14 Skanist?  15 A       I would be   the  future   successor  of   this  name  the way  16 the  present  holder  is   talking  now.     He's  already  left  17 the  blankets  and  the  regalia with me   to  hold on  to.  18 Q       The  present holder  is whom?  19 A      Willie  Simms.     It's my uncle.  20 Q       Where  do you  live  at   the  present  time,   Mr.   Austin?  21 A       Tse   Kya.  22 Q       And  do you  live  on  the  Hagwilget Reserve?  23 A      Yes,   that's where   I live.  24 Q       Have you  always  lived at   that  location?  25 A      Before when  I was  able   to work we   travelled  around  26 wherever   I was working,   but  since   I've  retired,   that  27 is where we  live   now.  2 8 Q       And when  did you  retire?  29 A      Before   I quit working  all   together   I had been   sick for  30 10,   11   years.     That was when  I —   the  last   time  I  31 worked  steady.  32 MR.   MACKENZIE:       Mr.   Rush,   you  have  no  objection  to me  recording  33 that we have  an audience here  of  about  17   people  and  I  3 4 presume   they're  all  Wet'suwet'en people?  35 MR.   RUSH:     I   think   that's   right.      I  think  there's  some  Gitksan  36 among us.  37 MR.   MACKENZIE:  3 8 Q       Yes.     I  see.     Okay.  3 9 What  occupations  did you have when you were  40 working?  41 A  During the war years I worked as a construction worker  42 over at the airport.  I worked there for a while.  43 Q  Yes.  Besides that?  44 A  After that I worked on a CN work train.  45 Q  Did you have any other occupations?  46 A  I also worked as a section man for the CN for a while,  47 and then I also went fishing on the coast for a while 5  C.   AUSTIN   (Plaintiff)  Cross-exam by  Mr.   Mackenzie  1  2  Q  3  A  4  5  6  7  8  9  10  Q  11  A  12  13  14  15  16  Q  17  A  18  19  20  21  22  23  24  25  26  Q  27  A  28  Q  29  A  30  31  32  Q  33  A  34  Q  35  A  36  Q  37  38  A  39  Q  40  41  A  42  Q  43  44  A  45  Q  46  A  47  around 1942.  Did you have any other occupations?  I have done many — all types of work in many places.  In 1945, '46, when them first portable sawmills came  into the country in Hazelton area, they were all out  in — out in the bush.  I worked on them for a while.  There was a sawmill. Will in Sawmills up in the Silver  Cup Road, and I worked there for a while.  I was — I  was skidding with horses.  Did you have any other occupations?  I worked for Hazelton Sawmills.  This was located at  south Hazelton and I worked there for three years,  which changed name later to Rim Forest, but that's  been shut down now and they have a big mill at  Carnaby.  Did you have  any  other  occupations?  Going back before   I worked  on  the   sawmills  and  all  these  other  little  jobs,   I   travelled with my  parents,  my mother and my dad and my  sister,  wherever   they were  hunting and  trapping  I   travel  with  them,   and at  one  time we   spent   some   time  in  the  back of  Topley  one  winter.     They were   trapping back  there.     We  lived  in a  tent.      I  remember  it was  really  cold when we  lived  in  the   tents  and  I  remember  getting very  cold at   nights.  I  didn't  have   no wife,   so —  What  house was your  father   in?  He was  also  from G'en egh la  Yex.  What  house was your mother   in?  I  don't  know  how  it  came  about,   but   I had been  told  that   she belongs   to Gidum  Skanist's  house  and  there's  also a  picture  ID  saying  that.  And Gidum  Skanist's  house  is G'en egh  la Yex?  Yes.  How  old are you  now,   Mr.   Austin?  Last  fall   October 24th  I became 68.  You have been  the  chief  councillor  at   the Hagwilget  Reserve for  several  years,   were you  not?  Yes,   I've also  done   that.  And have you also  served as a band councillor at   the  Hagwilget Band?  I was a  chief   there.  And you also   served as  a Hagwilget  representative  on  the Gitksan-Carrier  Tribal   Council?  Yes,   I worked with   them.  Now,   you  have a  registered  trapline,   do you  not?  Yes,   since   I've —   I've had that  trapline  registry  I've   taken  ill   and  I've  never used  it because  of  my C.   AUSTIN   (Plaintiff)  Cross-exam by  Mr.   Mackenzie  1 illness.  2 Q  And when did you receive that registered trapline?  3 A   I think it was about 1977.  4 Q  And who had that registered trapline before you?  5 A   It was Joseph Seymour.  6 Q  Did you know Joseph Seymour personally?  7 A  Yes, he was a relative of mine.  8 Q  And what clan was Joseph Seymour in?  9 A  He's of Laksilyu.  10 Q  And what house was Joseph Seymour in?  11 A  I didn't know what house he belonged to, but he was  12 closely related to us.  Sometimes he resided with us.  13 Q  And where is your registered trapline?  14 A  It's past Morice Lake.  I believe it's on the other  15 side.  There's a creek running in from the south which  16 is one of the boundaries.  17 Q   Is your — have you ever been out to your trapline?  18 A   I already mentioned that by the time when I got that  19 registered trapline I became ill and I was unable to  2 0             go out there.  21 Q  Yes, I understand that. I wonderered if you'd ever had  22 an opportunity to visit it?  23 A  Me and my wife we drove out there and we came down to  24 the lakeshore and we looked to see if we can locate  2 5 it, but it was down the lake a ways and we didn't have  26 a boat.  But on the — while travelling up in that  27 area between Houston and Morice Lake, there was a lot  2 8 of logging going on and we seen a lot of that while we  2 9 travelled out there.  30 Q  Have you a map of your trapline?  31 A  I have one at home.  It's sitting in a briefcase.  32 Q  Does your trapline touch or border upon Atna Bay?  33 A  If I took a look at that paper I could probably tell  3 4 you more and whereabouts it would be from it, Atna  3 5 Bay.  36 Q  But can you recall that, whether your trapline runs  37 along the shore of Morice Lake south of Atna Bay?  38 A  I know that it runs along the shoreline, and as far as  39 Atna Bay goes I can't tell you how close or how far  40 away it was from Atna Bay, but I got a letter from —  41 I got a letter from ATN saying that they changed the  42 boundary line to the middle of the lake.  43 Q  And do you know which clan territory that area is?  44 A  How I came into possession of that trapline was  45 previous to myself there was a Laksilyu holding that  46 trapline, and there was letters came in to band  47 council office in Hagwilget, and it was from the game 7  C.   AUSTIN   (Plaintiff)  Cross-exam by  Mr.   Mackenzie  1 warden and what he was  saying  is  that a Laksilyu held  2 that   trapline  before  and what  they wanted was  another  3 Laksilyu  to   take   it,   and  they   had  searched by   letters  4 through Moricetown,   Burns Lake,   and  then —   and  5 Houston,   and as  a  result,   Josie Moore's mother was  an  6 old  lady who my mother and  Marian looked after,   and  7 they   in  turn agreed for myself   to  take   that  trapline.  8 Q       Do you know which  clan  territory   that   trapline  is  9 located  in?  10 A       At   the   time   I  didn't know who   it belonged  to.      I just  11 assumed because  of  Laksilyu holding  that  registered  12 trapline   that   that was Laksilyu  territory,   and because  13 of   the   game warden looking  for Laksilyu  to   take hold  14 of   that  trapline because  of   the previous holder was  a  15 Laksilyu,   I agreed  to  take  it.  16 Q       And do you  know  now which  clan  territory   that   is?  17 A       From what   I  understand,   I just found out  recently,  18 that  that  territory belongs  to another  clan.  19 Q       And  do you  know which  clan  that   territory belongs   to?  20 A      Within our  clan  system  there's  five within  the  21 Wet'suwet'en,   but  in  comparison  to Gitksan,   they  only  22 have  three because  Gilseyhu and Laksilyu are  as  one  23 down  there.  24 Q       So  is   it  fair  to  say   that you don't know which  clan  25 territory your  registered  trapline  is  in?  26 A       The way   I   think right  now   is  I  cannot  jump  in  there  27 and  say who  it belongs  to or what.     The  only  process  2 8 that   I  can deal  with  this because we know  that   it   is  29                                 within  somebody  else's   territory,   you would  have   to  3 0 call   a  feast  and let   the  chiefs  decide how   it  is  going  31 to be  resolved.  32 Q       But   now,   at   the present   time,   you're  not aware  of  33 whose   territory   that  is?  34 A       One   of   the  clan  territories  in  the  area   is Gilseyhu,  35 and  there's Big  Seymour and his  sons were  also in  that  36 area,   and because  of   the  trapline   system  that was  37 imposed on us,   as a  result  of   that,   they were handed  38 down from father  to  son.     It's  called Nege'deldes,   and  39 because  of   the   trapline  system a lot  of   this —   a lot  40 of   the  clan  systems went  astray.     And all   this —   the  41 only way you  can resolve any  of   this  is   through a  42 feast  system where   the  chiefs will   speak  to  it.  43 Q       I'm  placing before you an application for  registration  44 of   a   trapline  dated March 13,   1979.     This  is  a  carbon  45 copy.     Can you  identify your  signature  on  the bottom  46 line?  47 A       I  don't   think anybody  can write  like me,   so   it  looks C.   AUSTIN   (Plaintiff)  Cross-exam by  Mr.   Mackenzie  1 like   it's my writing.  2 MR.   RUSH:     Can you  give  us  a  copy  of   that  too,   please?  3 MR.   MACKENZIE:     Yes.      I wish   to   submit   that  as  Exhibit  67 4-2.  4  5 (EXHIBIT 674-2 :  Application for  registration  of   a  6 trapline  dated  March 13,   1979   of   Charlie Austin)  7  8 (BRIEF  RECESS   TAKEN)  9  10 MR.   MACKENZIE:  11 Q  This is a letter dated February 1, 1987, from Walter  12 Joseph to Mr. Cox, and it's said on here that a copy  13 went to you, Mr. Austin.  Is that a letter of which  14 you received a copy?  15 A  Yes, I have one like this and it's a copy of this.  16 MR. MACKENZIE:   Next exhibit, please?  17  18 (EXHIBIT 674-3 : Letter dated February 1, 1987 from  19 Walter Joseph to Mr. Cox)  20  21 MR. MACKENZIE:  I'm showing your counsel something first.  22 MR. RUSH:  Thank you.  I need a copy of that too.  23 MR.   MACKENZIE:  24 Q       Yes.      I'm showing you a band council   resolution of   the  25 Hagwilget Band dated  February 1,   1977,   and can you  26 identify  that as  a  resolution  that  transferred  the  27 trapline   to you?  2 8 A      Yes,   I'm aware  of  —  29 MR.   MACKENZIE:        Exhibit   67 4-4.  30  31 (EXHIBIT 674-4 :   Band council   resolution  dated  February  32 1,   1977   of  Hagwilget Band)  33  3 4 MR.   MACKENZIE:      I'm  showing you  a  copy  --   oh,   not  —   I'm  showing  35 it  to your  counsel.  36 MR.   RUSH:     Thank you.     Yes.  37 MR.   MACKENZIE:  3 8        Q  I'm showing you a copy of a letter from Clive Macleod,  39 District Conservation Officer, to Mr. Walter Joseph,  40 dated May 13, 1976, relating to Joseph Seymour  41 trapline.  Did you see that letter?  Can you identify  42 it?  43 A       I can't  say whether  I  seen  this letter  or  not,   but   I  44 remember when  they were  looking for —  by letter,   to  45 find a  person  to be   successor  to  that  trapline,   and  I  46 think   I have  seen  that  one.  47 Q      When he  said he  has  seen  that  one,   did he mean  the  one 9  C.   AUSTIN   (Plaintiff)  Cross-exam by  Mr.   Mackenzie  1 we were  looking at  from Clive Macleod?  2 A       I may  have   seen  it.  3 Q       I want   to  speak about your  house  now.  4 Which  territories  does  G'en egh l_a Yex  own?  5 A       One   of  G'en  egh  la Yex's   territories   is —  belongs   to  6 Gidum Skanist,   and one  other one   that   I know  of   is   the  7 one  Daniel   Leon —   he —  who's my  grandfather,   he  has  8 one  G'en egh la  Yex   territory.     At  this  point,   because  9 of   the   trapline   system,   his  son,   Patty  Leon,   who's my  10 cousin,   is Laksamshu,   in our  traditional way   is  11 Nege'deldes,   but  because  of   the white man's way,   the  12 trapline  system,   I  think he has   that   trapline  registry  13 in  that   territory.     He  has  asked me  to use   that  14 territory  of  my   grandfather's,   Daniel  Leon.     He   says  15 there   is  lots  of  beaver  in  there,   that   I  should  go   in  16 there  and —  but  his  children are  using  it  or  seem  to  17 dislike   the   idea,   so   I  never bothered.     And  the  other  18 territory   that   I  know  of   Tseel_-k'ez   ben  territory  19 which belongs   to Gidum  Skanist.  20 Q       The  first   territory you  said was Gidum Skanist.     Where  21 is   that  territory?  22 A      That's  the  one   I was  talking about  at  Tseel_ k'ez   ben.  23 MR.   RUSH:     That's  T-s-e-e-l_,   new word,   k-'-e-z,   new word,   b-e-n.  24 MR.   MACKENZIE:  25 Q       That's at Burns Lake?  26 A      Yes,   that's   the  same one.  27 Q       And where  is  Patty Leon's  territory?  28 A       It's  up  in  the  general   area between Topley  and Topley  29 Landing.     That's   the  one  he was asking me about.     That  3 0 belongs   to G'en egh  la Yex.  31 Q       And  Patty Leon lives  at Topley  landing?  32 A      Yes,   that's where  he  lives.  33 Q       And Daniel  Leon has  passed on?  34 A      Yes,   he's deceased.  3 5 Q  Patty Leon is one of the Babine people?  36 A  They live in that area.  They all related to us.  We  37 have relatives there are spread out.  3 8 Q  Patty Leon is the chief of the Burns Lake Band at  39 Topley Landing — I'm sorry, I'll rephrase that  40 question.  Patty Leon is chief of the Babine Band at  41 Topley Landing?  42 A  He is a hereditary chief and he also — he's also an  43 assistant to the church system up there.  He is in  44 much the same position as Pat Namox, but Patty Leon  45 also holds numerous hereditary chief names.  46 Q   Patty Leon holds Babine chiefs' names; correct? '  47 A  There was a disagreement to one of Patty 10  C.   AUSTIN   (Plaintiff)  Cross-exam by  Mr.   Mackenzie  1  2  3  4  5  6  7  8  9  10  11  Q  12  A  13  14  Q  15  A  16  17  18  19  20  21  Q  22  23  A  24  25  Q  26  A  27  Q  28  A  29  30  31  Q  32  A  33  34  35  36  Q  37  A  38  Q  39  A  40  Q  41  A  42  43  44  Q  45  46  A  47  which  had belonged  to  Sam  Patrick  that —  when  there  was  a feast at Burns Lake when  Patty Leon  took  the  name,   but  a year  later   there was a disagreement  and  another lady,   Madeline William,   took  that  name,   and  so  I —   that  lady   that  took that  name away  at  that   time  is   still   using  it and  they  are all   related  to  us.  Regardless,   they  still  whenever   there's  a  feast   at  Moricetown  or Hagwilget,   they  come  down and help  us.  We  also  do  the   same   thing  in  turn.     We  go  out   there  and we help  them.  What   is   Patty  Leon's  chief's  name?  I  can't  recall   names he holds at  this  time,   and  I  even  forget   the  one   that  Sam  Patrick had.  You agree   that   they're Babine  names?  They  all   live out   in that general   area,   and  they've  had living quarters  all   the way  up and down  the lake.  And at  one   time  they  created a village   in Burns  Lake  and  they moved most  of   the  people  on  the lake  down  there,   but   there's   still   people  living out  along  the  lakes and  these  names may have been from Babine.  Does G'en  egh  la Yex  own  any   territory at   the  head  of  the  Telkwa  River?  I  know  of  my  dad's  nephew  Tommy  Michell.     He  held a  territory  up  there.  Is   that Gen egh  la Yex  territory?  Yes.  Is there Gen egh la Yex territory at Macdonell Lake?  I don't know too much about that area at all.  The  previous witness that was questioned today, they  have — they hold that territory up there.  Does Gen egh la Yex own territory at Maxan Lake?  That Maxan Lake area also belongs to Gen egh l_a Yex.  Maxan, who was a member of Gen egh la Yex, probably  Maxan, who has passed on, Hagwilnegh will probably be  responsible for that area now.  Does Gen egh la Yex own territory at Hagwilget?  No.  Did Chief Charles Francis own territory at Hagwilget?  You're talking about Chief Charles?  Yes, Gidum Skanist?  He had a house just below the church in Hagwilget and  then further to the front he built a house, Gen egh la  Yex, which belonged to Gidum Skanist.  Was that his, Gidum Skanist1s, territory before the  reserve was established?  A lot of our elders in the past have lived there, and  they — they resided there and today we are — we, as 11  C.   AUSTIN   (Plaintiff)  Cross-exam by  Mr.   Mackenzie  1 children,   are  still   living  there,   but  the  territory  2 around  that  reserve belongs  to Spookw.  3 MR.   RUSH:     That's  61   on  the  plaintiffs'   list.  4 MR.   MACKENZIE:  5 Q       I want   to ask you  some questions  about Willie  Simms  6 now,   William  Simms.     Now,   William  Simms  is  a member  of  7 the  house  of  Gyetm galdoo,   a Gitksan house;   is   that  8 correct?  9 A      Willie  is  first  cousin  to my mother because  he  10 actually  is my  uncle,   and he  also related  to  Daniel  11 Leon  and Donald Walter.     And Gyetm galdoo   is  Gitnay  12 from Gitanmaax and  not  related to  them at all.  13 Q       Okay.     Do you  know   that Willie  Simms was adopted  into  14 the house  of  Gyetm  galdoo?  15 A      He   told me one   time  that   they  gave him a name   there  16 because  he helped  them out  a few  times,   and Jessie  17 Sterritt's  family  was  the  one   that  gave him a  name.  18 Q       And Jessie  Sterritt  adopted Willie   Simms  into   the  19 house  of  Gyetm galdoo;   correct?  20 A      Willie   Simms,   occasionally  he  gets  angry when he  21 disagrees  or   somebody disagrees with  him.     At   one  22 point when  in Gitanmaax he  attended  a  feast  and  this  23 lady  came  and  told him  to  sit  in another  place.     He  24 didn't  like   that.     And in regards  to Gidum Skanist  25 somebody was   talking about   the  name Gidum  Skanist  and  26 he  didn't agree with  that,   so he was mad at both ends.  27 And one  day  he  called me and he  gave me  the  regalia  2 8 and he   told me  to look after  it because he  said  "You  29 will  be   taking my place,   Gidum  Skanist."     And  I  had  30 told  him at   that   time   "Let's  leave   this  in  the  hands  31 of  God because we  don't  know which  one  of   us   is  going  32 to  go  first."     And   that's  the way   that  it   stands  33 today.      I  leave  it   in  the  hands  of  God.  3 4 Q       And  are you aware  that   some people  from Moricetown  3 5 want   to  take   the  name Gidum Skanist?  36 A      Yes,   I'm aware  of   that.  37 Q       And  they want  to  take   the  name away  from Willie  Simms?  38 A      Yes,   that's what  they're  saying.  3 9 MR.   RUSH:     How much  longer you  going   to be?  40 MR.   MACKENZIE:     Maybe we   should  go  off   the  record  to  discuss  41 that.  42  43 (OFF   THE   RECORD   DISCUSSION)  44 (BRIEF  RECESS   TAKEN)  45  46 MR.   MACKENZIE:  47 Q       You  told me  about   Patty  Leon's  territory.     Can you 12  C.   AUSTIN   (Plaintiff)  Cross-exam by  Mr.   Mackenzie  1 tell  me —  can you agree with me  that  Patty  Leon  is  2 the  chief   of   the  band at  Topley Landing?  3 A       I  don't  know  how many  houses are  out at Topley  4 handing.      I  don't  know  how many Gitdumden  or  how many  5 Laksamshu  is out   there.     If   there —   if   there's quite  6 a  number  of   them,   well,   then  Patty Leon would be   their  7 chief.  8 Q       He's  the  chief   councillor   there,   isn't he?  9 A       I  don't  know.      I  don't  know about   that.  10 MR.   MACKENZIE:       Okay.     Now,   why  do  the Moricetown  people want  11 to  take   the   name Gidum  Skanist,   to your  knowledge?  12 MR.   RUSH:     Well,   excuse me  just  a moment.  13 MR.   MACKENZIE:      Yes?  14 MR.   RUSH:     That's  a  problematic question.  15 MR.   MACKENZIE:      Oh,   okay.  16 MR.   RUSH:     I   think you mean  to  say  why,   of   those  people who want  17 to  claim —  18 MR.   MACKENZIE:     Yes.  19 MR.   RUSH:     —   the   name at  Moricetown.     The  suggestion behind  it  20 is   that  everybody  at  Moricetown wants  to   take   the  21 name,   and  I'm sure you didn't mean  that.  22 MR.   MACKENZIE:     Of   course.     That's  right.     Yes.  23 MR.   RUSH:     Maybe   it would help  to  rephrase   it a bit  to be  more  24 specific.  25 MR. MACKENZIE:  26 Q       Yes.     Yes.     You  said  some people  at Moricetown  claim  27 the   name Gidum  Skanist?  28 A       In  the past William  has  told me  that  there's  people  29 that want   that   name  and  they —   I don't  know   the  3 0 reasoning behind  it,   probably because  it  is a big  31 name.  32 Q       Now,   are you  aware   that Willie Simms owns  land outside  33 the  reserve  in Two  Mile  and New  Hazelton?  3 4 A       A long  time ago  he  used  to  live  in Hagwilget  and he  35 lived —  he built a house  next  to his mother's  place  36 where him and his wife lived,   and after  that when he  37 moved off   the reserve he had became enfranchised and  38 that's when he  lived  in New Hazelton,   but   then now  he  39 lives  in Two Mile.      I  think he's  living  on his  40 father-in-law's   territory place.     He's living on  his  41 daughter's husband's land.  42 Q       Does Willie Simms  own  the  land?  43 A      No,   that's —   it  belongs  to his  son-in-law.  44 Q       Who's his   son-in-law?  45 A       John Mickelichuk.  46 Q       Now,   William Simms worked for   the  CN Railway   for many  47 years;   is   that  correct? 13  C. AUSTIN (Plaintiff)  Cross-exam by Mr. Mackenzie  1 A  Yes. He worked there for quite a while.  2 Q  When did he retire from the CN?  3 A  It's been quite a while.  When he celebrated his  4 birthday last fall I think he said he was 84.  5 Q  Now, I want to ask you some questions about the  6 territory of Burns Lake.  You never trapped in that  7 territory, did you?  8 A   No.  9 Q  And you never hunted in that territory, did you?  10 A   No.  11 Q       The  first   time you went   to  that   territory was   in 1988;  12 is   that  correct?  13 A       You're   talking about Burns  Lake?     You're   talking  about  14 Burns Lake,   Tseel_ K'ez?  15 Q       Yes.  16 A      That wasn't  the  first   time.  17 Q       When was   the  first  time   that you went  to  that  18 territory?  19 A  We travelled through there many times before on the  20 highway, and then after my grandfather had told me  21 about the area I go there many times and I look over  22 the territory.  23 Q  Now, you were at Jimmy Williams' feast in 1987,  24 weren't you?  25 A       I   think  I was  invited.     Myself   I  can remember   things  a  26 long ways  back,   but   some more  recent  times   I can't  27 always  recall   readily.  28 Q       At  Jimmy Williams'   feast   Patty Leon  tried   to put Gidum  2 9 Skanist  on  to Joe  Alec,   didn't he?  3 0 A       I just  remembered  that and  I forget who hosted  that  31 feast   that   time.  32 Q       And you  said at   that   time Willie  Simms  is   still   alive  33 and  using   the  name,   didn't you?  34 A      Yes,   that's what  I   told  them.  35 Q       And you  said   "So why  are you  doing  this?".   Didn't you?  36 A       Yes.  37 Q  Now, are you aware that there are many Indian — many  3 8 native traplines in the Burns Lake territory?  3 9 A  I heard about it at that time.  40 Q  You know Frank Tibbutz has a trapline in that Burns  41 Lake territory?  42 A  That's the first time I heard that.  43 Q  Were you aware that that trapline was passed to Frank  44 Tibbuts by will from his father?  45 A  Are you talking about the white man way or the Indian  46 traditional way?  47 Q   I'm talking about a will by which Frank Tibbutz, Chief 14  C.   AUSTIN   (Plaintiff)  Cross-exam by  Mr.   Mackenzie  1 Tibbutz,   passed the   trapline   to his  sons by will?  2 A       In our  traditional way yenta  is a   territory,  whereas  a  3 trapline   is just —  could be  anywhere where   there's  a  4 trail,   and  I'm  not  sure as  to which one you  are  5 referring to.  6 Q  And do you know Toby Charlie who has a trapline in the  7 Burns Lake territory?  8 A  Yes, I heard that he holds a registered trapline  9 there.  10 Q  He is a member of the Burns Lake Band?  11 A  He lives around there so he must belong there.  12 Q  And over the years — well, are you aware that over  13 the years he's leased his trapline to white people?  14 A   No.  15 Q  And do you know Winnie Casimel who has a trapline in  16 the Burns Lake territory?  17 A   No.  18 Q       Did you ever   travel   on  the Burns Lake   territory with  19 your  grandfather Johnny  Sebastian?  20 A       I  didn't   travel  with  him  on the   territory,   but   I  did  21 go hunting with him  in another  area,   and  that's when  22 he   told me about   the  territory and he   told me why  he  23 was   telling me  about   the   territory.     He wanted me   to  24 know  all   the  features  of   the  territory because  of   our  25 system.     When  the   names  go with —   the   territories   go  26 with  the  names,   and one  day  I will  be  a  successor,   the  27 way  our  system works.  2 8 Q       And when was   that  he   told you  that  information?  29 A       It was approximately  early  or late  50' s.  3 0 Q       And where were you  hunting when he   told you  that?  31 A      We were hunting  out  in  the Bulkley  Canyon  area.  32 Q       And what were you  hunting for?  33 A       In  the  old  traditional way we  go hunting in  the  first  34 snowfall   in  the  fall  when  there's  fresh  tracks.     We  35 hunt  for moose.  36 Q      You hunted in many  areas?  37 A      Yes,   we —   it's  a  rather large  area,   so we hunt  in  3 8 there  in many  different  parts  of   it.  3 9 Q       And where  are   some  of   the places  that you've hunted  40 over the years?  41 A  We hunt all the time because we live off the meat from  42 the wild.  43 Q  And really you can hunt anywhere, can't you?  44 A  When we're hunting big game we usually get them almost  45 anywhere because within the territories there's no  46 fences.  47 Q       Do you  know where   that  lake  is?     I've  given you a 15  C.   AUSTIN   (Plaintiff)  Cross-exam by  Mr.   Mackenzie  Cross-exam by Mr.   Macaulay  1 name.      It's —   I  think  it's  C'eyes  Taan Ben.  2 A       I believe  it's  on  the Gidum  Skanist   territory.  3 Q       Do you  know where  it  is  on  that   territory?  4 A       It's —   from where   the  road is  it's across  from  there.  5 Q       Across  — what  do you mean  "across  from  there"?  6 Across what?  7 A       It's   north  of   the  highway.  8 Q       Now,   when you're  hunting for moose you  hunt  all   over  9 the   territories.     You don't have  to ask permission  to  10 go   to hunt moose,   do you?  11 A       I  never asked anybody   in  springtime when  I  go hunting  12 on a   saddle  horse.     When   I  get  any  game  nobody  13 questions me,   so  I  don't  say  anything.  14 MR.   MACKENZIE:       Thank you very  much,   Mr.   Austin.  15  16 CROSS-EXAMINATION  BY  MR.   MACAULAY:  17 Q       Mr.   Austin,   my   name  is Macaulay and   I  am  the  counsel  18 for   the Attorney-General   of  Canada.  19 Chief   Frank Tibbutz,   was  he Gidum Skanist?  20 A       I  know —   at   this  day   I  only know  of   one,   one Gidum  21 Skanist,   and — who holds,   my  uncle,   who holds   that  22 high  hereditary  chief   name.  23 Q       You  don't  know who  his  predecessor was,   who your  24 uncle's predecessor was?  25 A       There was quite a —   there was quite  a few former  26 Gidum  Skanists.      I was  pretty  young  there  at  27 Hagwilget.     I remember  Chief   Charles was one  of   them.  28 Q       Do you  know who Joseph  Seymour's  father was?  29 A       I heard of   the man.      I  didn't  know —   I didn't  know  30 him personally,   and  I  didn't   talk  to  him like   I would  31 you.      I —   I heard  of   him.     His  name  is Big  Seymour.  3 2 Q       He was Big  Seymour?  33 A       Yes.  3 4 Q       Is   the  name —   is Gidum  Skanist   next   in line   to   take  3 5 the  name  Hagwilnegh?  36 A      Gidum  Skanist   is a big name,   and  the  former Hagwilnegh  37 from way back just  had a  dislike for one another for  3 8 wanting  to know which  one was higher,   a higher  name,  39 and Willie  Simms was  aware of   that.  40 Q       Well,   is   the  answer   that Gidum  Skanist  does  not  41 necessarily  succeed  to  the   name Hagwilnegh?  42 A       I  don't   think  so.  43 MR. MACAULAY:   I have no other questions.  Thank you, Mr.  44 Austin.  45  46 RE-EXAMINATION BY MR. RUSH:  47 Q  Now, Mr. Austin, you mentioned earlier in your 16  C. AUSTIN (Plaintiff)  Re-exam by Mr. Rush  1 evidence that you were present during the giving of  2 evidence by a previous witness.  And was that this  3 morning when you sat in on the evidence?  4 A  Here?  5 Q  Yes.  6 A      Are you referring  to Namox?  7 Q      Was  that   Pat Namox  that you sat  in on earlier  today?  8 Is   that who you were  talking about?  9 A      Yes,   that's   the  one   I was  referring  to.  10 Q       And did you  sit  in on all   of   his  evidence?  11 A      Yeah,   I listened  to  the —  all   of   the evidence.  12 Q       And  Pat Namox  is  of   the Laksilyu  clan?  13 A      Yes,   that's  right.  14 MR.   RUSH:     That's  all.     Those  are  all  my questions.  15  16 (PROCEEDINGS  ADJOURNED)  17  18 I hereby certify   the   foregoing  to  19 be a   true and accurate   transcript  20 of   the proceedings  herein  to   the  21 best Jbf  my  skill  and  ability. /  22  23 _i  24 Tanita S. French  2 5 Off/icial 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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