Delgamuukw Trial Transcripts

Cross-Examination on Affidavit of Joshua Mclean British Columbia. Supreme Court Dec 14, 1988

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 <3n tiit Supreme (Court of J3riti«l| Columbia  »*a 0843  Smithers Registry  BETWEEN  AND  Smithers, B. C.  December 14, 1988  DELGAMUUKW, also know 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  OOSHUA McLEAN <3Jn tlit Supreme (Hour! of ^Britis!] Columbia  Na 0843  Smithers Registry  Smithers, B. C.  December 14, 1988  BETWEEN  AND  DELGAMUUKW, also know 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  OOSHUA McLEAN  M. Adams, Esq.  Ms. T. Sigurdson  J.A. Macaulay, Esq  appearing for the Plaintiffs  appearing for Her Majesty the  Queen in Right of the Province  of British Columbia  appearing for the Attorney  General of Canada EXHIBITS  INDEX  NO  DESCRIPTION  PAGE  1  2  3  3A ID  3B ID  Special Arda British Columbia,  Application for Assistance Document  Trapline Map from Department of  Indian Affairs Trapline File //E5828  Sketch, page 2  N.J. Sterritt's Notes dated  January 5, 1987, page 1  N.J. Sterritt's Notes dated  January 5, 1987, page 3  6  14  14  14  WITNESS  McLEAN, Joshua  Cross-examination by Mr. Macaulay 1  J.   McLean   (for  Plaintiffs)  Cross-exam by Mr.   Macaulay  1 SMITHERS,   B.C.  2 December 14,   1988  3  4 JOSHUA McLEAN,   a witness  herein  5 called on behalf  of  the  6 Plaintiffs,   having been duly  7 sworn,   testifies as follows:  8  9 S.   HOWARD:   Interpreter previously  10 sworn  11  12 CROSS-EXAMINATION BY MR. MACAULAY:  13 Q   Your name is Joshua McLean?  14 A   Yes.  15 Q   And what is your chief's name?  16 A   O'Yee.  17 Q   Is that in the house of Nii Kyap?  18 A   Yes.  19 Q   What are the other chief's names in the house of Nii  20 Kyap?  21 A Niits'im nii   tarn  lax wakxw.  22 MR.   MACAULAY:     How many names  are  those,   two names?  23 THE  INTERPRETER:     No,   that's just  one name.  24 MR. MACAULAY:  25 Q   Are there any other chief's name in the house of Nii  26 Kyap?  27 A   This is the only one he can recall.  2 8 Q   Does O'Yee have a territory near Bear Lake?  29 A   Yes.  3 0 Q   Do you trap on that territory?  31 A   No.  32 Q   Have you ever been on that territory?  3 3 A   No.  34 Q   When did you take the name O'Yee?  35 A   1964.  36 Q   And did David Gunanoot have the name before that,  37 the name O'Yee before that?  38 A   David was just holding it, looking after it until  39 they put the feast up and then he took it.  40 Q   What did you contribute to the feast when you took  41 the name?  42 A   7 00 on top of all the other material things that he  43 put in.  The 7 00 was just the cash.  44 Q   Did David Gunanoot take over the name at Fred  45 Gunanoot's funeral feast?  46 A   It was at Fred Gunanoot's feast that David took the  47 name to hold until he was able to put up enough *>  J.   McLean   (for  Plaintiffs)  Cross-exam by Mr.   Macaulay  1 money  to take  it because  at  the  time he  didn't have  2 enough.  3 Q What was your father's name?  4 A William.  5 Q And your mother's name?  6 A Mariah.  7 Q Were they both in the house of Nii Kyap?  8 A Yes.  9 Q Was it against the law of the house for a man from  10 Nii Kyap to marry a woman from Nii Kyap?  11 A Yes.  12 Q What was done about that situation?  13 A They really couldn't say anything because they had  14 already been together too long.  15 Q When were you born?  16 A March 6, 193 0.  17 Q And where did your parents live when you were small?  18 A Kisgagaas.  19 Q Did they live on the Indian reserve property at that  20 time?  21 A Yes.  22 Q How long did your parents continue living at  23 Kisgagaas?  24 A They lived there until they died.  25 Q Did you go to school at Kisgagaas?  26 A He went for three years.  27 Q And after school what was your occupation?  2 8 A My father taught me how to trap.  29 Q And what was the name of the territory where your  3 0 father taught you to trap?  31 A We were — the river's name was Xsugwin Liginsxw.  32 Q That is also called the Babine River?  33 A Yes.  34 Q Your father had a registered trapline in that  35 territory?  36 A We just went by the hereditary boundaries.  37 Q Your father died in 1955?  38 A Yes.  39 Q And you applied for registration of a trapline after  40 your father died?  41 A The house members wanted me to take out a  42 registration and that is what I did in '57.  43 Q But your father before he died had a registered  44 trapline?  45 A Yes, he had one but we went by the creeks where the  46 hereditary boundaries were.  47 Q And when you applied for a registered trapline it J. McLean (for Plaintiffs)  Cross-exam by Mr. Macaulay  1 was for yourself and Thomas and William Jr. and  2 Elijah and Ester and your mother?  3 A   Yes.  4 Q   And those were all the members of your family, your  5 immediate family?  6 A   Yes.  7 Q   Then Ester was taken off the trapline?  8 A   Yes, she got married.  9 Q   Did she go to live outside the — away from  10 Kisgagaas?  11 A   Yes, she moved to Prince Rupert.  12 Q   Has she lived in Prince Rupert ever since then?  13 A   No, they've separated and she has come back.  14 Q   I'm showing you a trapline map.  Have you seen a  15 copy of this before?  16 A   They gave me a copy when they gave me the  17 registration.  18 Q   Do you still have that copy of the trapline map?  19 A   He has it in Kisgagaas.  20 MR. MACAULAY:  I'm showing you a map which is part of a set of  21 documents.  I'll ask you if that is a map you sent  22 into the government last year, a map of your  23 trapline? He should look at all the documents.  24 THE INTERPRETER:  You wanted to know if this was the copy that  25 he has?  26 MR. MACAULAY:  27 Q   My question is did you send in that copy of your  28 trapline map last year to the government, send it to  29 the government last year?  30 A   I did apply, but I just dropped it after.  I didn't  31 go through with it.  32 Q   Well, I'm not asking about your application, I am  33 asking if you sent in as part of your application a  34 map of your trapline?  35 A   No, I didn't send a map in.  36 MR. MACAULAY:  Now, then I want you to look at the document and  37 I'll ask you if you signed the document on July 3,  3 8 19 86.  39 MR. ADAMS:  Sorry, which document?  40 MR. MACAULAY: Well, the map is part of the document, and I was  41 asking him if he sent in the map.  My questions were  42 directed at the map.  43 MR. ADAMS:  I understand that, but now you asked him if he  44 signed it on the date.  45 MR. MACAULAY:  No, that's all the same document.  It is all one  46 application.  47 MR. ADAMS:  All right. 4  J.   McLean   (for  Plaintiffs)  Cross-exam by Mr.   Macaulay  1 MR.   MACAULAY:     And  one  of   the applications has  the  title  2 "Declaration by Applicant".     Well,   he  should look at  3 all   the pages  including that  one.     It's all   the  same  4 document.  5 MR. ADAMS:  Well, it is in the sense that I gather under one  6 number of yours it is included, but I don't see  7 anything that connects the maps to these documents,  8 that's my problem.  9 MR. MACAULAY:  On page 3 of the document under item 6 it says:  10 "Map traplines included".  11 MR. ADAMS:  Just hang on a second, Sadie, until we get this  12 straightened out.  I don't know how I can knew or he  13 can know unless he can identify it that this map is  14 the map that is referred to.  15 MR. MACAULAY:  Oh, that's right.  If he can't identify it that's  16 the end of it.  17 MR. ADAMS: Well, I think his answer was he didn't send in a map  18 with his application.  19 MR. MACAULAY:  Now I'm asking him if he sent in an application  20 signed by him on July 3, 19 86.  21 MR. ADAMS:  I understand that.  The other thing that I wonder if  22 it would help to determine is whether he is able to  23 read that and independently of that he may have  24 signed it.  25 MR. MACAULAY: Well, I'll ask him if he understood what he was  26 signing as the next question, but first let's find  27 out if he has any recollection of signing it.  28 MR. ADAMS:  That's fine.  29 THE INTERPRETER:  So I ask him if he signed this on the 3rd?  3 0 MR. MACAULAY:  31 Q    Yes.  32 A   Yes, I signed it.  33 Q   And when you signed it was a map of your trapline  34 attached — when you signed this document, was the  3 5              map of a trapline attached?  36 A   No.  37 Q   Now, the map that is now attached by somebody else,  38 does that look familiar to you?  Does it look like a  39 copy of your trapline map?  40 A   No, it doesn't look like it.  The one I have has the  41 reserve shown on the end on the top part.  42 Q   For the record, the document I was referring to has  43 on its cover page the words "Special Arda British  44 Columbia, Application For Assistance, part one" and  45 comprises several pages including a map.  I'm not  46 going to be — now I am going to ask about this  47 document — first I had better ask are there any J. McLean (for Plaintiffs)  Cross-exam by Mr. Macaulay  1 other pages of that document that you don't  2 recognize that weren't there when you signed the  3 document?  4 A   He doesn't remember seeing this second page.  5 Q   He is referring to a page entitled "Note to  6 Applicants".  It is the first page after the cover  7 page.  Okay.  8 A   He remembers this page.  9 Q   That is the page —  10 A   With his name on it.  11 Q   With his name on it and six numbered paragraphs.  12 A   It was the second page.  He doesn't remember seeing  13 this.  14 Q   For the record, paragraphs 10 to 15 he doesn't  15 remember.  16 A   He remembers 16 to 17.  17 Q   Paragraphs 16 to 17.  18 A   And the one he signed.  And the next one.  And the  19 next one.  And the next.  And the last page.  And  20 this one.  He doesn't remember the map, it wasn't  21 there.  22 Q   The witness has gone through the document.  How  23 about the cover page?  24 A   No.  25 Q   The witness has gone through the document I showed  26 him and has identified nine pages, and I will ask  27 him to confirm that.  I have taken the others out.  2 8 Could you ask Mr. McLean to look at that document  29 again with the pages deleted that he couldn't  30 identify and let's confirm that he does recognize  31 those remaining ones.  The witness says yes, those  32 are the pages he recognizes?  33 A   Yes.  34 Q   And were those pages present when he signed?  35 A   Yes.  36 MR. MACAULAY:  Could that be marked Exhibit 1 to this  37 cross-examination.  38  39 (EXHIBIT 1: Special Arda British Columbia,  40 Application for Assistance Document)  41  42 MR. MACAULAY:  43 Q   Now, I'll show you again the trapline map that I had  44 showed you earlier.  Does that map look like the one  45 that was sent to you when you applied on behalf of  46 your family for a trapline registration?  47 A   Yes, it looks like this one.  This is how it looked 6  J. McLean (for Plaintiffs)  Cross-exam by Mr. Macaulay  1 on the top that I mentioned before.  2 MR. MACAULAY:  Could that document be marked Exhibit 2 to this  3 examination for discovery.  4  5 (EXHIBIT 2:  Trapline Map from Department of  6 Indian Affairs Trapline File E5 82 8)  7  8 MR. MACAULAY:  For the record, this is a portion of Department  9 of Indian Affairs trapline file E5828.  We have a  10 production number too, and I can give you that if  11 you want it.  12 MR. ADAMS:  Your document number?  13 MR. MACAULAY:  Yes.  14 MR. ADAMS: Yes, I would appreciate that, please.  15 MR. MACAULAY:  Off the record for a second.  16  17 (DISCUSSION OFF THE RECORD)  18  19 MR. MACAULAY:  20 Q   Was there a dispute between your father and Austin  21 Mathews about one of the boundaries of the trapline,  22 of the McLean trapline?  23 A   No.  24 MR. MACAULAY:  Our document number for that trapline file in  25 which the last exhibit was taken is 4593.  26 MR. ADAMS:  Thank you.  27 MR. MACAULAY:  28 Q One  of   the boundaries  of   the  trapline  is  Shegisic  29 Creek,   S-H-E-G-I-S-I-C.  30 A   Yes, that is where the boundary is.  That was a  31 hereditary boundary and it is still the same.  32 Q   Well, it is the hereditary boundary and it is also  33 the boundary of the registered trapline on the west  34 side?  35 A   If that's the same boundary, well that's —  36 MR. MACAULAY: Well, did Mr. Mathews do trapping in the area  37 next to Nii Kyap's territory?  3 8 THE INTERPRETER:  Was it Austin Mathews?  3 9 MR. MACAULAY:  40 Q   Austin Mathews.  41 A   Yes, he owns territory on the other side of the  42 creek.  43 Q   And the creek that forms the boundary, what name do  44 you call that creek?  45 A   Xsi Getsit.  46 MR. ADAMS:  It's number 3 on paragraph 7 on page 3 of the  47 affidavit under Rivers and Creeks. 7  J.   McLean   (for  Plaintiffs)  Cross-exam by Mr.   Macaulay  1 MR.   MACAULAY:  2 Q Had you ever heard of   the name Shegisic  for  that  3 creek?  4 A   He has always known it as Xsi Getsit.  That is what  5 it was called way before his time, and it is still  6 the same name as it is known today.  7 Q   How long did you continue trapping, all winter  8 during the entire season, that is all winter long?  9 A   We usually start on the 15th of October and then  10 when the snow gets too deep right around Christmas  11 time we come in and then we go back for beaver in  12 March.  13 Q   And do you still go out trapping about the 15th of  14 October and come back in around Christmas time?  15 A   Yes, I still do.  16 Q   And have you done that all your life since you were  17 a boy?  18 A   Yes, ever since the first time I went out with my  19 father, and I was seven years at that time.  2 0 Q   You mean seven years old?  21 A   Mh'm.  22 Q   Did you ever go fishing at the coast near Prince  23 Rupert?  24 A   No.  25 Q   Did you ever do any commercial fishing anywhere?  26 A   Only fishing I do is at Kisgagaas.  27 Q   Have you ever done any pole cutting?  28 A   Yes, I did for Arthur Hankin around 1946.  29 Q   And for how many years did you cut poles?  30 A   Three years.  31 Q   Have you ever ever had any other employment in the  32 logging business, the forest industry?  33 A   I worked for the section.  I think he means C.N.R.  34 in 1944.  35 Q   For how many years did you work for the railway?  36 A   One year.  37 Q   Apart from the pole cutting and the one year with  38 the railway, have you ever had any other employment,  39 paid employment?  40 A   I also worked for many years for Hobenshield, but I  41 usually go trapping in the wintertime.  42 Q   What does Hobenshield do?  43 A   He worked as a faller.  44 Q   For how many years did he work as a faller?  45 A   About 15 years.  About 15 summers.  46 Q   Did the fur prices drop considerably after the 1950  47 season? J. McLean (for Plaintiffs)  Cross-exam by Mr. Macaulay  1 A   I think it came up a little bit.  2 Q   Well, in the last ten years has it been possible to  3 earn a living at trapping?  4 A   I could if I just do trapping.  5 MR. MACAULAY:  I'm showing you a copy of a letter addressed to  6 Joshua McLean by Mr. C.A. Moore dated April 3, 19 87.  7 Did you receive that letter?  8 MR. ADAMS:  Just before she translates that answer, I'm not sure  9 that it has been — I'm not sure that it has been  10 ascertained that he can read that, otherwise he  11 wouldn't know.  12 MR. MACAULAY:  Well, we will go back to the other and I was  13 going to ask him if the — if he can't recall the  14 letter.  15 MR. ADAMS:  If he can't read it he has no way of knowing he has  16 received that letter as to any other letter.  17 MR. MACAULAY:  I'll rephrase the question.  Can you identify  18 that document, that piece of paper?  19 THE INTERPRETER:  I already told him — well, I asked him if he  20 remembered getting this letter from a Mr. Moore  21 about his application.  22 MR. ADAMS:  So you've described the letter already?  23 THE INTERPRETER:  I didn't describe what was in it, but I just  24 said this letter about your application.  25 MR. ADAMS:  But surely the thing that would be helpful to  26 determine is if he can read when you are going to  27 show documents to him that are written.  28 MR. MACAULAY:  29 Q   All right.  We will start that way if you would  3 0 like.  Can you read English?  31 A   He can read a little, but not much.  He can sign his  32 name.  33 Q   When you made your application that you signed, were  34 you able to read and understand what you were  35 signing?  36 A   Elsie just read it to him, Jack Sebastian's mother.  37 Q   For the record, we are referring to Exhibit 1.  Now,  3 8 did Elsie or anyone else read to you in April of  39 last year or May of last year a letter from Mr.  40 Moore about your application?  41 A   He didn't get anybody to read it for him, but he  42 didn't know exactly where this came from.  43 Q   Well, you can tell him this comes from — it is a  44 copy in a government file of a letter that is  45 addressed to Mr. Joshua McLean, general delivery  46 Hazelton.  47 A        He  doesn't remember getting one. s  J.   McLean   (for  Plaintiffs)  Cross-exam by Mr.   Macaulay  1  Q  2  3  A  4  Q  5  6  A  7  8  Q  9  10  11  A  12  Q  13  14  A  15  16  Q  17  A  18  Q  19  20  A  21  Q  22  A  23  24  Q  25  A  26  27  28  Q  29  A  30  Q  31  A  32  Q  33  A  34  Q  35  A  36  37  Q  38  A  39  Q  40  A  41  Q  42  A  43  Q  44  45  46  47  And do you know Mr.   Moore of   the Government of  Canada?  No.  Do you know a Mr. Mclntyre of the Government of  Canada?  He thinks he was the one that came to his house and  he told him to just forget the whole thing.  Did you tell Mr. Mclntyre during a recent season you  had caught only three marten, five squirrel and a  beaver?  Yes.  And was  that  the  total   that you  trapped for  a whole  season?  That was the time I only went out for a week I got  six and I had to come in.  Do you have any children?  No.  Now, does your brother William McLean go trapping  with you?  Yes, if he is not working he goes out with me.  Does he live at Kisgagaas?  Yes, he had a cabin out there and that was the one  that burned down.  Does he have another full-time job?  He usually just gets a short-term employment, like a  while ago he only got work for two months with B.C.  Hydro.  Is your brother Thomas still alive?  Yes.  And does he go trapping with you?  Yes.  Yes, he goes with me.  Does he live at Kisgagaas?  Yes.  And he lives there all year-round, Thomas?  Only when he gets work.  But I live there right  through.  How about your brother Elijah?  He works steady.  Does he live at Kisgagaas?  He usually stays out at camp in Meziadin.  Does he work in the lumber industry?  He works in the logging industry.  He's a faller.  Now, I'm showing you a map that the Gitksan  Wet'suwet'en lawyers gave to us over a year ago.  I  can tell you it is a map attached to a document  signed by Wii minosik.  I just want you to tell him  what it is.  Have you ever seen that map or any copy 1C  J.   McLean   (for  Plaintiffs)  Cross-exam by  Mr.   Macaulay  1 of   that map before?  2 A No,   he  doesn't remember  seeing one.  3 Q Do you  know Robert Stevens?  4 A Yes,   I   know  him.  5 Q   And he is in the house of Wii minosik?  6 A   Yes.  7 Q   Now, you can see that the map shows an area — the  8 area where you have spent your life trapping?  9 A   It all looks backwards to him.  10 MR. MACAULAY:  Do you have difficulty in reading maps like this  11 one ?  12 THE INTERPRETER:  I asked him if he knows how to read a map and  13 he says no.  14 MR. MACAULAY:  15 Q   If Robert Stevens stated that Wii minosik owned the  16 trapline or the territory in which you have your  17 trapline, he would be wrong?  18 A   Yes, he would be wrong.  19 MR. MACAULAY:  Did you ever hear that Robert Stevens claimed Wii  20 minosik was the owner of the territory which you  21 have your trapline?  22 MR. ADAMS:  Just before you ask that, you are asking that with  23 reference to the map and his answer was he couldn't  24 read a map.  25 MR. MACAULAY:  26 Q   We don't have to use the map to ask him that.  We  27 will take the map away and ask him virtually the  2 8 same question.  Did you ever hear that Robert  29 Stevens claimed your trapping area for Wii minosik?  3 0 A   No, I have never heard it.  31 MR. MACAULAY:  Do you remember a visit from Neil Sterritt on  32 January 5, 19 87?  33 THE INTERPRETER:  Which Neil Sterritt?  34 MR. MACAULAY:  35 Q    Neil J.?  36 A   Where at?  37 Q   Did you talk about your boundaries with Neil John  3 8 Sterritt on or around January 5, 19 87?  39          A   No, I don't remember.  4 0 MR. MACAULAY: We've done an hour, shall we take five.  41  42 (BRIEF ADJOURNMENT)  43  44 MR. MACAULAY:  Do you know Axdii ts'ex?  45 THE INTERPRETER:  No, I think you said it wrong.  Can I look at  46 this?  47 MR. ADAMS:  Are you asking if he knows the present holder of 11  J. McLean (for Plaintiffs)  Cross-exam by Mr. Macaulay  1 that name, is that the question?  2 MR. MACAULAY:  3 Q    Yes.  4 A   He doesn't know the present holder.  5 Q   Did you go to AXdii ts'ex's hunting ground with the  6 former Axdii ts'ex in 1943 and 1944?  7 A   Yes, I went with Frank Wilson if he was the holder  8 of that name at the time.  9 MR. MACAULAY:  And did you and Frank Wilson go from Kisgagaas up  10 the Babine Trail on the south side of the Babine  11 River?  12 THE INTERPRETER:  Can you repeat that?  I was writing this down.  13 MR. MACAULAY:  14 Q   Did you and Frank Wilson travel to his hunting  15 ground up the Babine Trail on the south side of the  16 Babine River?  17 A   Yes, we went that way when I went with him.  18 Q   And did you both cross a creek called Thomlinson  19 Creek?  20 A   Yes.  21 Q   And then did you follow the east side of that creek  22 for three miles?  23 A   Yes.  24 Q   And is there a hill there when you travel that three  25 miles that's K-I-I, D-E-K-W-I-T.  Is there a hill  26 called that?  27 A   Yes, that's where Frank Wilson had his cabin.  28 Q   And is there a slide from that place where the cabin  29 is down into Thomlinson Creek?  3 0 A   Yes, and the slide went all the way down to a little  31 creek called Xsimatsi Ho'ot.  32 MR. MACAULAY:  I think that's in the affidavit.  Yes, it's at  33 page 3 of the affidavit under the heading Rivers and  34 Creeks, it is number 2.  3 5   MR. ADAMS:  There is a creek at the number you identified that  36 seems to be Xsimatsi Ho'ot, but what is there is  37 Xsimatsi Ho'ot Ando'o and that may or may not be the  3 8 same thing.  39 MR. MACAULAY:  40 Q Well,   we will   ask  that.     Is Xsimatsi  Ho'ot  the  same  41 as Xsimatsi  Ho'ot Ando'o?  42 A It's a  little different.     Xsimatsi   Ho'ot  goes  43 towards   t;he Skeena.  44 Q Then Xsimatsi  Ho'ot  is not Thomlinson Creek?  45 A    No.  46 Q   Okay.  Do you remember telling that about that trip  47 to Neil John Sterritt in January 19 87? J. McLean (for Plaintiffs)  Cross-exam by Mr. Macaulay  1 A   Yes, Walter Wilson went out with us.  2 Q   And did Neil John Sterritt draw sketches of what you  3 were telling him?  4 A   No, but he was writing down the names of the creeks.  5 Q   He didn't show you any sketches and ask you if you  6 agreed?  7 A   No.  8 Q   On that occasion when you were talking to Neil John  9 Sterritt about boundaries, did you tell him that  10 Frank Wilson's boundary was near Thomlinson Creek  11 and that it followed on Nii Dekwit?  12 A   Yes, I told him — I told him what my father told me  13 that our boundary was on the Xsimatsi Ho'ot Creek  14 and that Frank Wilson owned the other side on the  15 east side.  16 Q   Did you tell Neil John Sterritt that your father's  17 cabin was on the north side of the Babine River?  18 A   Yes, I told him.  19 Q   And did your father have his cabin on the north side  20 of the Babine River?  21 A   Yes, that was where we lived when he was teaching me  22 how to trap.  23 Q   On that occasion, did you tell Neil John Sterritt  24 that Ansa maawxs is Nii Kyap's territory?  25 A   He says it should be Lax duu maawxs, and that was  26 what he said to me.  27 Q   Is that in the affidavit?  28 A   No.  29 MR. MACAULAY:  Perhaps we could have a spelling.  Could that be  30 spelled out.  31 THE INTERPRETER:  L-A-X space D-U-U space M-A-A-W-X-S.  32 MR. MACAULAY:  33 Q   What kind of feature is Lax duu maawxs?  Is it a  34 creek or a hill or what is it?  35 A   It's a little piece of land where the sun never gets  36 to.  There is always snow on there and that is where  37 they used to go and get snow to make what we call  38 diaks.  That's Indian ice cream.  39 Q   Is that place near your father's cabin?  40 A   That's where one of the boundary lines goes towards.  41 It almost gets to that little place.  42 Q   Well, is it on the north side of the Babine River?  43 A   Yes.  44 MR. MACAULAY:  Did you tell Neil John Sterritt at that same time  45 that your father buried Sam Green so Joseph Green  46 gave him Andip yeest, A-N-D-I-P, Y-E-E-S-T?  47 THE INTERPRETER:  Was it Sam Green? 13  J.   McLean   (for  Plaintiffs)  Cross-exam by Mr.   Macaulay  1 MR. MACAULAY:  2 Q   Buried Sam Green so Joseph Green gave him Andip  3 yeest?  4 A   Yes.  5 Q   And Andip yeest is on the north side of the Babine  6 River?  7 A   It's really close to the cabin.  It's out towards  8 the Babine Trail.  9 Q   That is on the north side of the Babine River?  10 A   Yes.  11 Q   Now, I'm showing you two pages from Neil John  12 Sterritt's notebook.  I am going to ask you if you  13 saw — it contains a drawing, a sketch.  I am going  14 to ask you if you — you have to put them together  15 to understand them.  They belong together.  Have you  16 ever seen that sketch on those two pages before?  17 A   No, he never showed me this.  18 Q   I'll show you another sketch.  This is from another  19 document of Neil John Sterritt.  It has a date  20 January 5, 19 87 and your name.  And it says:  "At  21 his house in hospital subdivision".  Now, do you  22 remember meeting at your house in hospital  23 subdivision with Neil John Sterritt?  24 A   Yes, he remembers.  25 Q   You remember the meeting.  Do you remember that he  26 took notes at that time when he spoke to you?  27 A   Yes.  Yes, I saw him writing.  28 Q   And did you read the notes after he had finished  29 them?  30 A   No because there was no one else there to read it  31 for me.  32 Q   And did he — I'll show you the second page of these  33 notes.  Did he somehow show you this sketch?  34 A   Yes, he showed me.  35 Q   And did you agree with the sketch that he made?  36 A   Yes, I told him it was all right.  37 MR. MACAULAY:  Could this document be marked Exhibit 3.  3 8   MR. ADAMS:  Well, it is only the sketch that he has identified.  39 He said he was making notes, but that he had no  40 opportunity to know what was in the notes.  41 MS. SIGURDSON:  Perhaps I can assist.  There was an agreement  42 with Mr. Rush to have the notes identified.  There  43 is Stuart's letter.  44 MR. ADAMS: What has not happened here is it hasn't been  45 confirmed in Mr. Sterritt's notes.  46 MS. SIGURDSON:  The way we've been dealing with that to date is  47 we've been marking them.  Mr. Grant asked to review 14  J. McLean (for Plaintiffs)  Cross-exam by Mr. Macaulay  1 the notes he had in his office, and subject to  2 hearing back from Mr. Grant they have been marked as  3 exhibits proper.  4 MR. ADAMS: Well, I have no objection.  5 MS. SIGURDSON:  But then the obligation is for you to come back  6 if you can show that they are not Mr. Sterritt's  7 field notes.  8 MR. ADAMS:  If it is brought up again to mark them as exhibits  9 proper, then we will deal them as exhibits proper.  10 MR. MACAULAY:  I am going to deal with it this way.  He has  11 identified page 3 of 3.  I will ask that the page he  12 has identified, the sketch, be marked Exhibit 3 and  13 that the other two pages be marked Exhibit 3A and 3B  14 for identification.  15 MR. ADAMS:  I have no objection to that.  16 MR. MACAULAY:  The page 1 will be 3A, page 2 will be just 3 and  17 page 3 will be 3B.  18  19 (EXHIBIT 3:  Sketch, page 2)  20  21 (EXHIBIT 3A FOR IDENTIFICATION:  N.J. Sterritt's  22 Notes dated January 5, 19 87, page 1)  23  24 (EXHIBIT 3B FOR IDENTIFICATION:  N.J. Sterritt's  25 Notes dated January 5, 19 87, page 3)  26  27    MR. MACAULAY:  2 8 Q   Now, the last page we've marked as 3B.  The last  29 page of these notes at the top have the following:  30  31 "Nii Tekxwit arrow boundary between William  32 McLean and Frank Wilson."  33  34 Do you see that?  I am just asking if you can read  35 that note now, not then.  If he can understand the  36 note.  37 A   Where the boundary is?  3 8 Q   No, I am just asking you if he can read those notes  39 tonight.  I am not asking him — the first question  4 0 has nothing to do with if he saw these notes ever  41 before.  I am just asking him if he can read enough  42 English to read those notes tonight?  43 A   He can make out his father's name and the note Luu  44 Delim Tsim Dak who is Nii Kyap, this one.  He can  45 recognize his father's name and he knows that.  46 Q   Did you tell Neil John Sterritt that Nii Tekxwit was  47 the boundary between your territory and Frank 15  J. McLean (for Plaintiffs)  Cross-exam by Mr. Macaulay  1 Wilson's?  2 A   Yes.  3 Q   And did you help Frank Wilson build a new cabin at  4 Nii Tekxwit in 1943?  5 A   No, there was a cabin there when I went with him.  6 Q   Wasn't the cabin old and rotten when you went there  7 with him?  8 A   It was still in good shape.  It didn't leak or  9 anything.  10 Q   Did you ever travel on this territory, your  11 territory with David Gunanoot?  12 A   No, but he usually travels up the trail that goes up  13 this way when he goes to his territory.  14 Q   The trail you refer to is on the south side of the  15 Babine River?  16 A   The trail goes up on the north side of the Kisgagaas  17 Ridge.  18 Q   So that is north of the Babine River?  19 A   Mh'm.  2 0 Q   Did you know that David Gunanoot gave evidence just  21 the way you are tonight?  He gave evidence in this  22 action?  23 A   Yes, he knows.  24 Q   And did you know that David Gunanoot in his evidence  25 said that Xsugwit Tsilaaswxt, X-S-U-G-W-I-T,  26 T-S-I-L-A-A-S-W-X-T, belonged to Nii Kyap?  27 A   Yes, I know.  2 8 Q   And that territory is north of the Babine River?  29          A   Yes.  3 0 Q   And do you agree with that?  31 A   Yes, I do.  He told me.  32 MR. MACAULAY:  Is a creek called X-S-I, M-I-H-L, M-I-H-L —  33 THE INTERPRETER:  Xsi mihi mihl.  34 MR. MACAULAY:  35 Q   Is a creek called Xsi mihl mihl part of that  36 territory Xsugwin Tsilaaswxt?  37 A   Yes, it is.  3 8 MR. MACAULAY:  Were you present at a meeting between James  39 Morrison and David Green and Neil Sterritt in June  40 1979?  41 THE INTERPRETER:  David Gunanoot?  42 MR. MACAULAY:  43 Q   James Morrison, David Green, Neil Sterritt?  44 A   By the time I got there the meeting was over.  45 MR. MACAULAY:  Does James Morrison know what Nii Kyap's  46 territory is?  47 MR. ADAMS: How can he know what James Morrison knows? 1G  J. McLean (for Plaintiffs)  Cross-exam by Mr. Macaulay  1 MR. MACAULAY:  2 Q Does James Morrison  travel   through Nii  Kyap's  3 territory  from  time  to  time?  4 A   No.  5 Q   Does David Green go through your territory  6 occasionally?  7 A   If the river is high in the spring they usually  8 travel through our territory on their way back from  9 Wii Tax.  10 MR. MACAULAY:  Is David Green a neighbour of yours?  11 MR. ADAMS:  In what sense?  I don't understand the question.  12 MR. MACAULAY:  Well, does he live near Mr. McLean? A neighbour  13 in the ordinary sense?  14 MR. ADAMS:  In Hazelton?  15 MR. MACAULAY:  He lives in Kisgagaas.  16 MR. ADAMS:  That's why I don't understand the question.  I don't  17 know where you are asking him about him being a  18 neighbour.  19 MR. MACAULAY:  20 Q   In Kisgagaas?  Is he a neighbour in Kisgagaas?  21 A   Yes, we are pretty close and we know each other.  22 Q   Do you sometimes live in Hazelton?  23 A   Yes, when I worked for the section I lived in  24 Hazelton.  25 Q   Could you show Mr. McLean his affidavit.  It's right  26 there.  Mr. McLean, there are two creeks that have  27 names that are very similar in your territory and  28 they are numbers 8 and 9.  You see 8 and 9?  One is  29 known in English as Clifford Creek.  3 0          A   Yes, there is two creeks.  31 Q   And they have very similar names?  32 A   Mh'm.  33 Q   And they flow into the Babine River?  34 A   Yes, that is where the slide is, and that's why they  35 put in that fish ladder at that place.  36 Q   And is the source of both those creeks an area  37 called Luu Ska Tsee'it?  3 8 A   The name of the mountain where they come from is  39 called Luu Ska Tsee'it.  40 Q   Did you ever tell Neil John Sterritt that that  41 mountain and the area around that mountain was the  42 hunting ground of Geel?  43 A   Yes, I told him.  44 Q   What house does Geel belong to?  45 A   He said Walter Harris is the holder of the name now.  46 Q   Is Walter Harris a member of the house of Nii Kyap?  47 A   No. 17  J.   McLean   (for  Plaintiffs)  Cross-exam by Mr.   Macaulay  1 Q Does Walter Harris  have  the right  to hunt  around  2 that mountain?  3 A No.  4 Q   Well, how did he lose the right to hunt?  How did  5 Geel lose the right to hunt there?  6 A   He said Neil made a mistake in his notes.  Geel  7 should have been on the other side of this little  8 mountain by the Skeena River side.  9 Q   Did you see Neil John Sterritt's notes about Geel  10 before tonight?  11 A   No.  12 Q   Now, you signed and swore this affidavit on May 10th  13 of 1988?  14 A   Yes, I remember Neil called us and Walter Wilson  15 went in with me.  16 Q   And before you signed the affidavit, was it read to  17 you?  18 A   It was read to me and Walter explained it in  19 Gitksan.  20 Q   Did you make any corrections to the affidavit before  21 you signed it?  22 A   The way Walter explained it to me in Gitksan it was  23 right so I signed it.  24 Q   You travelled into Hazelton with Walter to do that,  25 to sign the affidavit?  26 A   Yes.  27 Q   And before you signed the affidavit, were you shown  28 a map of this territory described in the affidavit?  29 A   Yes, Walter followed it around as he was saying the  3 0 names of the little creeks.  31 Q   Had you ever seen that map before the day you went  32 to Hazelton to sign the affidavit?  33 A   No, but Walter just read it to me.  34 Q   Were you able to understand that map that Walter was  3 5 showing you?  36 A   Yes, I understood it when he showed it to me.  37 Q   That's Walter Wilson we are talking about, right?  38 A   Yes.  3 9 Q   Did Henry Wright ever trap in your territory?  40 A   Yes, he used to go out with me once in a while when  41 he was still alive.  42 Q   How many years did he go out with you the last time?  43 A   1979.  44 Q Did he know  the  territory as well  as you  did?  45 A        Yes.     Of  course he  used to go out with my  father  46 before me.  47 Q   Did Thomas Wright go trapping on your territory? 18  J. McLean (for Plaintiffs)  Cross-exam by Mr. Macaulay  1 A   Yes, he would go trapping out there too.  2 Q   What is his house? What house does he belong to?  3 A   They are really close together.  There is Tsim gan  4 otsin.  They are really close together so it was  5 almost like one house.  And that is what they call  6 the other half of the house Sto'o wilp.  7 Q   Thomas Wright was the chief of his house, the head  8 chief of his house?  9 A   Wii Kaax is the head of the house.  10 Q   Did your house come originally from Gitangasxw?  11 A   Yes.  12 Q   And did your house go from Gitangasxw to Kuldo?  13 A   No, but the Kuldo people used to come to Gitangasxw.  14 Q   Do you know when the house of Nii Kyap left  15 Gitangasxw?  16 A   The way it was told to me it was hundreds and  17 hundreds of years ago that they left Gitangasxw.  18 They found a fishing site at Kisgagaas and that was  19 one of the reasons why they moved.  20 Q   When you were young was there still a longhouse  21 belonging to Nii Kyap?  22 A   I will tell you that what I remember of it was when  23 I was small was there used to be cracks in between  24 the walls about an inch wide.  It was a big house  25 with a hole in the centre and that was where all the  26 people lived all around inside.  27 Q   Did your father and mother live in that house?  28 A   Yes.  Yes, they all stayed in Nii Kyap's house.  29 Q   And were there any windows in that house?  30 A   No.  31 Q   And did the feasts take place in that house?  32 A   Yes, that was one of the reasons why they were big.  33 Q   Did Nii Kyap have a totem pole in front of that  34 house?  35 A   The only pole that I remember was Waiget's pole that  36 was called Milkst.  37 Q   Was it the custom for every new chief to put up a  3 8 pole?  39 A   Yes, that was one of their customs.  40 Q   Had that custom stopped by the time you were young?  41 A   At the time around that time everyone had pretty  42 well separated and there was no one to do it.  43 Q   When was the Nii Kyap longhouse last used as a house  44 for the chief and his family?  45 A   No, it was before I really knew anything.  All I can  46 remember was that I saw the house when it was there.  47 Q   Did you ever live in the house? 19  J. McLean (for Plaintiffs)  Cross-exam by Mr. Macaulay  1 A   It was too old by the time.  All I remember is that  2 we used to play in it.  3 Q   Was it the custom to put up grave houses after a  4 chief was buried over his grave?  5 A   Yes, they used to do that.  6 Q   And were those grave houses put up at the place  7 where the body was burned?  8 A   Yes, my grandmother told me that they used to burn  9 the deceased's possessions with the body and then  10 they would build a little house on top.  11 Q   When was the last grave house built at Kisgagaas?  12 A   The last that I remember is the one that my father  13 built in 1937, and you can still see the remains of  14 it today.  15 Q   Where do the Nii Kyap chiefs hold their feast now?  16 A   Gitanmaax.  17 Q   And at the feast where do you sit? Who do you sit  18 next to on the right hand and the left?  19 A   Jerry is holding the name Nii Kyap today.  I sit  20 next to him.  And the rest of his wings will sit on  21 the left side of me.  And the house of Wii Kaax will  22 sit on the right side.  23 Q   Is there a nax nok that belongs to O'Yee?  24 A   Yes.  2 5 Q   And do you know that nax nok?  26 A   David was teaching me the song of the nax nok.  27 Q   And this is David Gunanoot?  2 8 A   And he passed away so I never really knew the song.  29 MR. MACAULAY:  Thank you, Mr. McLean, those are my questions.  30 MS. SIGURDSON:  I have no questions.  31 MR. ADAMS:  Can we just take a few seconds and come back.  I  32 have a few questions.  33  34 (BRIEF ADJOURNMENT)  35  36 MR. ADAMS:  I have no more questions for you.  Thank, you Mr.  37 McLean.  3 8 (PROCEEDINGS CONCLUDED)  39  40 I hereby certify the foregoing to  41 be a true and accurate transcript  42 of the proceedings herein to the  43 best of my skill and ability.  45 ^'Ç ̈Lo. sf-^^^Aa  46 LISA FRANK07 OFFICIAL REPORTER  47 UNITED REPORTING SERVICE LTD.


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