Delgamuukw Trial Transcripts

Cross-Examination on Affidavit of Ernest Hyzims British Columbia. Supreme Court Dec 15, 1988

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 <3n tl\e £>uipTzm£ Cnuri of JirttiBlj Columbia  Na 0843  Smithers Registry  Smithers, B. C.  December 15, 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 MA3ESTY THE QUEEN IN RIGHT OF THE  PROVINCE OF BRITISH COLUMBIA and  THE ATTORNEY-GENERAL FOR CANADA,  Defendants.  CROSS-EXAMINATION ON AFFIDAVIT  OF  ERNEST HYZIMS <3n tlit j8>upr*un* Court of ^Bnttal] Columbia  Na 0843  Smithers Registry Smithers, B. C.  December 15, 1988  BETWEEN:  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;  AND:  HER MADESTY THE QUEEN IN RIGHT OF THE  PROVINCE OF BRITISH COLUMBIA and  THE ATTORNEY-GENERAL FOR CANADA,  Defendants.  CROSS-EXAMINATION ON AFFIDAVIT  OF  ERNEST HYZIMS  M. Adams, Esq.        appearing for the Plaintiffs  Ms. T. Sigurdson      appearing for Her Majesty the  Queen in Right of the Province  of British Columbia  O.A. Macaulay, Esq.    appearing for the Attorney  General of Canada INDEX  EXHIBITS  NO.  DESCRIPTION  PAGE  Interrogatory Response sworn  February 6, 1987  WITNESS  HYZIMS, Ernest  Cross-examination by Ms. Sigurdson  Cross-examination by Mr. Macaulay  Re-examination by Mr. Adams  1  15  19 1  E.   Hyzims   (for   Plaintiffs)  Cross-exam by Ms.   Sigurdson  1 SMITHERS, B.C.  2 December 15, 1988  3  4 ERNEST HYZIMS, a witness called on  5 behalf of the Plaintiffs, having  6 been duly sworn, testifies as  7 follows:  8  9 S. HOWARD: Interpreter previously  10 sworn.  11  12 CROSS-EXAMINATION BY MS. SIGURDSON:  13 Q   Mr. Hyzims, my name is Thora Sigurdson, I'm a lawyer  14 for the province.  I would like to ask you a few  15 questions.  I'm showing you an affidavit that has  16 been marked Exhibit 6 08 at trial and ask if that's  17 your signature on page 5.  18 A   Yes, that's mine.  19 Q   Do you read English, Mr. Hyzims?  20 A   A little bit, not too much.  He can read a little  21 bit, not too much and he doesn't have his glasses.  22 Q   Was the affidavit read to you when you signed it?  23 A   Yes, they read everything.  24 Q   And who read it to you, please?  25 A   He can't remember whether it was at the Tribal  26 Council office, but he remembers signing it.  27 Q   Okay.  Can you recall who read the affidavit to you?  2 8 A   He can't remember, but he remembers that Neil was  29 there.  3 0 Q   That's Neil John Sterritt?  31 A   Yes, but he can't remember exactly who read it to  32 him.  33 Q   Okay.  What language was the affidavit read to you  34 in, Gitksan or English?  35 A   It was read in English and done in Gitksan.  36 Q   Could you understand it all in English?  37 A   Yes.  I can understand English, but I can't read it  3 8 if I have to.  39 Q   You hold the chief's name Gwagl'lo?  40 A   Yes.  41 Q   And you are the head chief of the house of Gwagl'lo?  42 A   Yes.  43 Q   You belong to the Lax seel or Frog Clan?  44 A   Yes.  45 Q   From the village of Gitsegukla?  46 A   Yes.  47 Q   You also speak for the house of Duubisxw? 2  E. Hyzims (for Plaintiffs)  Cross-exam by Ms. Sigurdson  1 A   Yes, all what is written on that page I can  2 understand all clan, the Frog Clan.  It is all  3 written on that page.  Because my nephew has written  4 his name on the sheet and all my sisters, sons and  5 daughters.  It is on that page.  They have got some  6 other page somewhere.  7 Q   Are you referring to your interrogatories?  I'm  8 showing you another affidavit you swore on February  9 6, 19 87.  Is that your signature as well?  10 A   Yes, that's mine.  That's my writing.  11 MS. SIGURDSON:  Well, perhaps at this time I will mark extracts  12 from the affidavit of Mr. Hyzims.  I am tendering as  13 an exhibit the affidavit to the interrogatories  14 response of Mr. Hyzims sworn February 6, 19 87,  15 schedule A which is referred to in 24, questions 32,  16 33, 34, 59C and 62.  Could that be marked.  17  18 (EXHIBIT 1:  Interrogatory Response sworn  19 February 6, 19 87)  20  21 MS. SIGURDSON:  22 Q   I should say also with the exhibit copy the map  23 attached to question 59C is also included.  24 A   His feet are aching.  25 Q   Mr. Hyzims, I understand you are not feeling well.  26 Would you like to stop for a moment?  27 A   We will keep on going.  2 8 Q   Please tell me when you want to stop.  29 A   It just comes on for a short time and goes off for  3 0 awhile.  31 Q   I'm showing you schedule A to the interrogatories  32 response which is referred to in question 24 where  33 you were asked what are the names, places of  34 residence, ages and occupations of the members of  35 your house.  Is that the list you were referring to?  36 A   Yeah, that's mine and my sister Violet and Roddy  37 Sampare, Anna.  And what's this?  3 8   THE INTERPRETER:  Jeffrey Johnson, Marcia, Roxanne, Sandra,  39 Roderick, Dale, Don.  40 THE WITNESS:  Yes.  41 THE INTERPRETER:  Winnie, Larry, Evelyn and Selma.  42 THE WITNESS:  Yes, all of them.  That's all in the same house.  43 MS. SIGURDSON:  44 Q   And that's the house of Gwagl*lo?  45 A   Yeah.  46 Q   Is Evelyn Johnson who is the second to last person  47 on the list, is she the person who holds the name 3  E.   Hyzims   (for  Plaintiffs)  Cross-exam by Ms.   Sigurdson  1 Duubisxw?  2 A   Yes.  When Wilfred Waiget died Evelyn took over the  3 name Duubisxw and Roddy has the name Sanoss.  4 Q   Is Duubisxw a separate house from Gwagl'lo?  5 A   The same — the same house.  6 Q   They are the same house?  7 A   Mh'm.  The same clan, the same tribe.  8 Q   Did Duubisxw and Gwagl'lo share the same territory  9 as well?  10 A   Yes.  It was Wilfred who went with me when we went  11 out to fight the people when my uncle Alec Brown  12 died.  13 Q   Are these people on schedule A of Exhibit 1 all the  14 members of the house of Gwagl'lo and the house of  15 Duubisxw?  16 A   Yes, all of them.  The rest of them — — he said  17 his grandchildren, the rest are on the end of the  18 paper.  19 Q   Those are excluding Selma Milton and Evelyn Johnson,  20 the last names are your grandchildren?  21 A   Right there.  He said Evelyn and Selma and Roddy are  22 in with Duubisxw.  23 Q   All right.  24 A   Yeah.  And it is all in my house.  25 THE INTERPRETER:  And these are all in his house Gwagl'lo.  26 MS. SIGURDSON:  27 Q   Okay.  Let me go back a bit because I'm not sure if  2 8 I have this straight.  These on schedule A with the  29 exception of Evelyn Johnson and Selma Milton are  30 members of the house of Gwagl'lo?  31 A   Yes.  32 Q   Are these members also members of the house of  33 Duubisxw?  34 A   Winnie is one of his nieces and Larry Pierre is  3 5 Winnie's son.  36 Q   Is Winnie Pierre a member of the house of Gwagl'lo?  37 A   Mh'm.  3 8 Q   Is Winnie Pierre also a member of the house of  39 Duubisxw?  4 0 A   Mh'm.  Right.  These are all the people in the Lax  41 seel house in Gwagl'lo and Duubisxw.  And when we  42 raise the pole all those people will be there to  43 give their support.  44 Q   Do you know if there are any other members of the  45 house of Gwagl'lo and the house of Duubisxw that are  46 not listed here?  47 A   That's all. 4  E. Hyzims (for Plaintiffs)  Cross-exam by Ms. Sigurdson  1 Q   Could you tell me the jobs you have held since you  2 were a young man?  3 A   Yeah.  He worked for the C.N.R. as a section man the  4 first time.  5 Q   How long did you do that for?  6 A   Five years.  7 Q   Can you remember when you started doing that?  8 A   1941 when I start on C.N.R.  9 Q   And what other jobs have you held, Mr. Hyzims?  10 A   Change the ties on the C.N.R. track.  11 Q   Is that in the same five years you just told me?  12 A   Yes, all same five years.  They don't let me off  13 until I get real tired.  And I worked after I  14 finished on the C.N.R. and I work in the school for  15 another five years as a janitor work in Gitsegukla.  16 Q   Could you tell me the years you worked as a janitor?  17 A   1966.  18 Q   And how many years was that?  19 A   Five.  20 Q Between  the  time you work for  the C.N.R.   and  the  21 time you worked as  a janitor,   did you hold other  22 jobs?  23 A   From the C.N.R. I went to the school.  And in  24 between I just worked around at home and did some  25 fishing and cutting wood.  26 Q   Have you ever fished at the coast, Mr. Hyzims?  27 A   Yes, 1936.  2 8 Q   You were a young man, you were born in 1922?  29 A   1922.  Fishing with Fred Howard that time in 1936 at  3 0 the coast.  We went around to Vancouver after the  31 flood.  And after I fishing with Freddy and hired me  32 to work on a net, mending net for five years.  33 Q   And where did you do that?  34 A   Mending net.  35 Q   Yes.  36 A   Down at the cannery when the fishermen get snagged  37 they call me down to put a patch on it and they went  3 8 right out and catch some more salmon.  And in my  39 younger days I would go out trapping, that's why I  40 didn't learn enough to go to school.  All I know how  41 to skin squirrel and weasel.  But I pick up  42 everything when I am working on somewhere else and I  43 questioned him, that's why I understand everything.  44 And I do the plumbing too for water.  45 Q   Yes.  46 A   Bathroom, everything, hot water tank, bathtub, wash  47 basin. 5  E. Hyzims (for Plaintiffs)  Cross-exam by Ms. Sigurdson  1 MS. SIGURDSON:  When was the last time you trapped on the  2 territory of Gwagl'lo?  3 MR. ADAMS: Which one?  There are two territories covered in his  4 affidavit.  5 MS. SIGURDSON:  6 Q   Miinhl Dekwit?  7 A   1947.  8 Q   1947?  9 A   1947.  10 Q   When was the last time you trapped on the —  11 A   That's the last time we go there.  And the heavy  12 snow before we were going back to check the trapping  13 we get no snowshoes and the snow was covered all our  14 traps and that's the last time I went out there in  15 1947.  And I couldn't get into it after that.  I was  16 having arthritis, that's why I didn't go out.  17 MS. SIGURDSON:  And I asked that about the Miinhl Dekwit the  18 territory.  When was the last time that you trapped  19 at the Deep Canyon Creek or Xsi noon?  20 MR. ADAMS:  Maybe you could have your question translated fully.  21 THE WITNESS:  I didn't go to Xsi noon.  That's not my trapline.  22 Different trap, different tribe.  23 MS. SIGURDSON:  24 Q   Whose tribe is that?  25 A   What's his name?  It is quite a long time.  26 Q   Yes.  27 A   That's not my territory.  28 Q   I see.  29 A   So it is way out where my trapline is.  30 Q   Xsi noon is not Gwagl'lo's?  31 A   It is not on the trapline area.  It is not in my  32 name.  Some of them made a mistake on telling the  33 story on that, that's why it is all different, the  34 same as on the map too.  3 5 Q   Oh, I see.  Who does trap at the Deep Canyon Creek?  36 A   Henry Wilson and Albert Wilson.  That was where  37 Mathias had his sawmill and that's Xsi wii luu  38 hlobit.  39 MS. SIGURDSON:  Just wait for a moment until I get the spelling  40 of this, please.  41 THE INTERPRETER:  Xsi wii luu hlobit.  42 MS. SIGURDSON:  You have met with Neil John Sterritt on a  43 number —  44 MR. ADAMS:  Sorry, can we just go off the record for a second?  45 MS. SIGURDSON:  Yes, we may.  46  47 (DISCUSSION OFF THE RECORD) 6  E.   Hyzims   (for  Plaintiffs)  Cross-exam by Ms.   Sigurdson  1  2 MS. SIGURDSON:  3 Q   Mr. Hyzims, you have met with Neil John Sterritt on  4 a number of occasions, have you not?  5 A   Yes, he comes to my house sometimes.  6 Q   And you discuss the territory claimed by Gwagl'lo?  7 A   Yes, we went out for a ride one time.  8 Q   You went out for a ride with Neil John Sterritt and  9 Stanley William's territory?  10 A   Yes.  11 Q   That was in 1983; is that correct?  12 A   Yes.  13 Q   Do you recall meeting longer ago than that on  14 January 4, 1977?  15 A   Yes.  16 Q   And that was a meeting to discuss the territories of  17 the Gitsegukla chiefs, do you recall?  18 A   Yes.  19 Q   And at that meeting there was an effort made to  20 resolve the boundaries of Gitsegukla, but there was  21 no success?  22 A   Yes.  23 Q   I would like to turn again to your interrogatories.  24 And in your interrogatories you were asked on  25 question 59C:  "What are the boundaries of your  26 house's territory?"  Do you recall being asked that  27 question and providing an answer?  2 8 A   I told him the boundaries and where the fishing  29 sites were.  3 0 Q   All right.  We were given a map — or pardon me, the  31 answer in the interrogatories is:  "The approximate  32 boundaries of my territory are included in the map  33 which is set out in schedule C except for my fishing  34 sites."  This is the map we are provided as schedule  3 5 C and which we are told are the approximate  36 boundaries of your house.  I'll show you the map and  37 ask if this is — if you recall seeing this map when  3 8 you signed the interrogatories?  39 THE INTERPRETER:  He wants to know if the same Gwagl'lo is on  40 this map.  41 MS. SIGURDSON:  This was added later, but this was here before  42 there is a handwritten note that says Gwagl'lo.  43 MR. ADAMS:  Did you want to put your question again about  44 whether he had seen it?  45 MS. SIGURDSON:  Yes, I was waiting for him to finish reviewing  46 the map.  47 MR. MACAULAY:  Is that a photocopy?  Perhaps it would be easier 7  E. Hyzims (for Plaintiffs)  Cross-exam by Ms. Sigurdson  1 to use the original.  2 MS. SIGURDSON:  That would be very helpful.  3 MR. MACAULAY:  Sometimes the photocopies look quite different.  4 MS. SIGURDSON:  5 Q   Mr. Macaulay has provided an original of the same  6 map.  Could you look that, Mr. Hyzims?  7 A   All the maps I saw them.  If it is not right on the  8 map I wouldn't sign.  9 Q   All right.  Does this map accurately show the  10 boundaries of the house of Gwagl*lo?  11 A   Yes.  12 Q   Does Gwagl'lo claim any other territory other than  13 that is shown within the dark boundary on this map?  14 A   Just this one.  No one else has.  15 Q   Up at the very top there is a creek and the only  16 mark here is Noon, N-O-O-N.  Now, I would suggest  17 that that's Xsi noon.  18 A   Xsi noon, that's Hanamuxw's trapline.  Is this  19 territory also the territory of Duubisxw?  2 0          A   They are all the same on the map.  21 Q   They are all the same.  So this dark boundary?  22 A   Duubisxw a little farther off where my trapline  23 goes.  Duubisxw owns territories on part of the  24 territory of Gwagl'lo.  25 MS. SIGURDSON:  Is all of Duubisxw's territory within the black  26 line shown on this map?  27 MR. ADAMS:  I wonder if you can determine whether the witness  2 8 has any facility in reading maps?  29 MS. SIGURDSON:  Well, he seems to be having no problem reading  3 0 the map, Mr. Adams.  31 MR. ADAMS:  It seems to me he is asking for assistance in  32 locating places, and I am concerned that he may not  33 know where the features are.  The questions as to  34 the boundaries and features may not be of any value.  3 5 MS. SIGURDSON:  36 Q   Mr. Hyzims, can you read maps?  37 A   I can make it out a little bit.  3 8 Q   And you know that the dark line here is a boundary  39 line?  40 A   Yes.  He wants to know where Gitsegukla Lake is.  41 Q   There is Dam Giist here in the territory below the  42 name Guxsan.  Is that the lake?  43 A   Yeah, that's the one.  He says it starts at Wii  44 Dekwit.  45 Q   This side going towards Dam Giist?  46 A   Dam Giist, yeah, right.  47 Q   Does Gwagl'lo's territory cross Xsi Siiyuun which I 8  E. Hyzims (for Plaintiffs)  Cross-exam by Ms. Sigurdson  1 understand is Kitsuns Creek?  2 A   It is pretty close to the trapline.  It takes us  3 four days to travel the trapline.  Is it correct  4 that Gwagl'lo's trapline starts at Miinhl Dekwit and  5 it goes close to Xsi Siiyuun?  6 A   ItisXsi Siiyuun.  7 Q   That's my pronunciation there.  8 A   It goes further up.  9 Q   It goes further up —  10 A   Mh'm.  11 Q   Up which rivers?  12 A   It comes from the mountain and that is where the  13 creek comes from.  14 Q   Is the mountain Miinhl Dekwit that it comes from?  15 A   Xsi noon is a glacier.  16 Q   All right.  17 A   And that's where the Gitsegukla River drains out of.  18 Q   I see.  Do you know a glacier called Sganis'  19 Mehlasxw?  Perhaps Madam Interpreter you could  20 pronounce that.  21 A   It's in a completely different area.  22 Q   All right.  23 A   It's far away from Miinhl Dekwit.  24 Q   Yes.  Your ~  25 A   Somebody made a map they take everything together,  26 and it is all separated.  27 Q   It is all separated?  2 8 A   Yeah.  29 MS. SIGURDSON:  Your trapping area doesn't go close to Sganis'  30 Mehlasxw?  31 MR. ADAMS:  Can we make sure you are talking about a trapping  32 line or registered trapping area.  33 MS. SIGURDSON:  I said trapping area.  34 MR. ADAMS:  Well, it is not clear to me.  One is a registered  35 trapline and one is a house territory, and I am  36 concerned it may not be clear to the witness either.  37 MS. SIGURDSON:  3 8 Q   The area where you trapped or you used to trap  39 before 1947 —  40 A   Trapline.  41 Q   And the area that you trapped before 1947, that was  42 the area that was shown to you by Dan Guxsan and  43 Jacob Milton and Alec Brown?  44 A   I was young at the time, but I still remember.  That  45 old man is blind and he knows where the trail goes  46 through the lake in the spring time.  47 Q   Dan Guxsan died in 193 9? 9  E.   Hyzims   (for  Plaintiffs)  Cross-exam by Ms.   Sigurdson  1 A   Mh'm.  2 Q   And he had been blind for a few years before that?  3 A   He is really blind, but he knows everything.  He  4 tells me where my uncle's trapline is by the time we  5 get to Miinhl Dekwit on this side of the road and  6 Dam Giist.  7 Q   When I talk about trapping area, I am talking about  8 the area that Dan Guxsan showed you?  9 A   It is way farther up.  10 Q   Okay.  Perhaps you could explain to me where farther  11 up it is.  Is that the trapping grounds that starts  12 at Miinhl Dekwit?  13 A   That's starting at Miinhl Dekwit and the trapline  14 that goes all the way up to Dam Giist.  15 Q   And that's Gitsegukla Lake?  16 A   Mh'm.  Yeah.  17 Q   And that trapping area that Dan Guxsan taught you  18 goes —  19 A   They have another territory, hunting territory close  20 to the lake.  21 Q   Dam Giist Lake?  22 A   Yes.  23 Q   Do you know a mountain area called in English the  24 Nipples?  25 A   That's the bottom of Gitsegukla and the mountain go  26 through there and flipped right over that's why they  27 are called that.  2 8 Q   Is that mountain in the area that Dan Guxsan taught  29 you about?  30 A   Yes.  31 Q   Did Dan Guxsan tell you about the Miinhl Dekwit and  32 Xsi noon territory?  33 A   Yes.  We went all the way.  We walked four days from  34 our village to get up Xsi noon and it is quite a  3 5 ways.  36 Q   Did you go to a mountain called Sganis' Mehlasxw on  37 that trip?  3 8 A   We are not supposed to go over there, we trespass.  39 Q   Can you go close to Sganis' Mehlasxw or do you  40 stay —  41 A   We only go as far as our boundary and we can't go  42 over or we would be trespassing.  43 Q   Is the boundary Xsi Siiyuun?  44 A   Yes.  45 Q   Does Gwagl'lo still claim Dam Spaidat which in  46 English I understand is Sandstone Lake?  47 A   It is part of Duubisxw.  That's a different area. 10  E.   Hyzims   (for  Plaintiffs)  Cross-exam by Ms.   Sigurdson  1 Q        All  right.     Does Gwagl'lo claim Hankin Lake or Lax  2 ditax?  3 A   No, there is no lake on our territory.  4 Q   There is no lake on your territory?  5 A   No lake, just a creek and a meadow.  6 Q   Do you know who claims Lax ditax or Hankin Lake?  7 A   That is a part of Duubisxw's.  There is another lake  8 called Sdoosdahl tax.  9 MS. SIGURDSON:  Could I have the spelling for that, please.  10 MR. ADAMS:  Just while you are waiting for the spelling, I am  11 instructed that Hankin Lake is not Lax ditax but Dam  12 duusil.  13 MS. SIGURDSON:  Do you know a name called Dam duusil?  14 MR. ADAMS:  Just wait until the interpreter is back with us.  15 THE INTERPRETER:  A lake called what?  16 MS. SIGURDSON:  Dam duusil?  17 THE INTERPRETER:  Which lake were you —  18 MS. SIGURDSON:  19 Q   Dam duusil, and the spelling I have is D-A-M space  20 D-U-U-S-I-L.  21 A   I am not exactly sure where Dam duusil is, but I  22 know Sdoosdahl tax, Spaidat and ditax.  23 MS. SIGURDSON:  I would like to change the topic for a moment.  24 THE INTERPRETER:  He is asking if there is more coffee here.  25 MS. SIGURDSON:  Would you ask him if he would like to take a  26 break?  27 THE WITNESS:  Yes.  2 8 MS. SIGURDSON:  Perhaps we can take a 15 minute break now.  29  3 0 (BRIEF ADJOURNMENT)  31  32 MR. ADAMS:  For the record, I've advised my friends after a  33 break that I have inquired into the state of Mr.  34 Hyzims' health through the translator and have been  35 advised that he is not well and that he is in pain  36 and in increasing pain from his arthritis.  He has  37 medication for that at home and that he has left it  3 8 there in Gitsegukla.  He has expressed to me through  39 the translator that he is not thinking straight.  40 MS. SIGURDSON:  Perhaps we can ask Mr. Hyzims that tomorrow, but  41 I don't know if that's appropriate.  42 MR. ADAMS: Well, I am setting out on the record what I've been  43 advised through the translator, that's the best I  44 can do.  I have been advised that he is not thinking  45 straight as a consequence of the pain and the  46 proposal that I have made and my friends have  47 accepted is that we attempt to continue with him 11  E. Hyzims (for Plaintiffs)  Cross-exam by Ms. Sigurdson  1 tomorrow, Friday, after Mr. Fred Wale has completed  2 his examination.  Fred Wale is presently scheduled  3 to begin at 9:30 tomorrow morning and what we have  4 agreed is that we will try to continue with Mr.  5 Hyzims when he completes.  6 MS. SIGURDSON:  And that's agreeable with me.  7 MR. MACAULAY:  Perhaps you can ask whoever is bringing his  8 medication up from Gitsegukla to bring his glasses  9 as well because he didn't have them here this  10 morning.  11 (PROCEEDINGS ADJOURNED)  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 12  E.   Hyzims   (for  Plaintiffs)  Cross-exam by Ms.   Sigurdson  1 (PROCEEDINGS   RESUMED   PURSUANT  TO  ADJOURNMENT)  2  3 ERNEST HYZIMS, resumed:  4  5  6 MR. ADAMS:  Let me just say one thing before you start.  When we  7 adjourned this morning Mr. Hyzims said that he had  8 left his medication in Gitsegukla.  We are coming  9 back after an adjournment since this morning at 4:50  10 p.m.  In the interval counsel for the plaintiffs  11 have been in touch with his doctor in Terrace and  12 have obtained medication for him in Smithers and he  13 has now taken that and tells us that he is feeling  14 better.  15  16 CROSS-EXAMINATION BY MS. SIGURDSON:  17 Q   Thank you for coming back, Mr. Hyzims.  I have just  18 a few more questions.  Alec, the former Gwagl*lo  19 died in 1943?  20 A   Yes, a train hit him.  21 Q And when did Jacob Milton pass away?  22 A It was  a long time after Alec died that Jacob died.  23 I  can't recall   the exact year,   but he died in the  24 village  of Gitsegukla.  25 Q Would  that be  in  the  1960's or 1950's?  26 A I  think maybe  it was  in  the  sixties.  27 Q And Jacob Milton held  the  chief's name Taa Guut  28 Gwisaat?  29 A Yes,   that's  the name  that he held.  30 Q Is  that a name in  the house of Gwagl'lo or a name in  31 the house  of Moolxan?  32 A Itisin  the house of Moolxan.  33 Q Is  the house  of Moolxan empty now?  34 A Yes,   it was,   but now  there are people  that are  35 taking  some  of   the names  in Moolxan's house  like  36 Joe's  son,   he has  one  of   the names.  37 Q Could you  tell me Joe's last name?  3 8 A         Xsgogimlaxha.  39 Q And when  did your mother Elizabeth Hyzims  pass  away?  40 A 1947.  41 Q   I would like to ask you about when you signed your  42 affidavit, that is Exhibit 608.  Madam Interpreter  43 is showing you a copy of that affidavit.  When were  44 you first asked if you would sign an affidavit about  45 the territory of Gwagl'lo?  46 A   It was a long time ago.  It was quite a while back  47 and I can't remember the exact date.  Is there a 13  E. Hyzims (for Plaintiffs)  Cross-exam by Ms. Sigurdson  1 date on it?  2 Q   Well, there is a date on the affidavit of June 8,  3 1988.  Were you asked before then?  4 A   No.  5 Q   Can you recall who asked you to sign an affidavit  6 describing the territory of Gwagl*lo?  7 A   That is a hard part for me to say because I can't  8 exactly recall who.  9 Q   All right.  10 A   That's one of the symptoms that I have that every  11 now and again I just can't seem to recall anything.  12 Q   In the past few years you have met with Mr. Neil  13 Sterritt on a number of occasions?  14 A   Yes.  15 Q   Often Stanley Williams was with you as well?  16 A   That was a time we went up with Neil and we took a  17 drive up, but we got stuck at Miinhl Dekwit so we  18 had to turn around.  19 Q   And you have met with Mr. Sterritt and Mr. Williams  20 on other occasions as well, have you not?  21 A   No.  22 Q   Do you recall meeting with Mr. Williams and Mr.  23 Sterritt on March or April of 19 88?  24 A   That may be the meeting that was held at the health  25 station in Gitsegukla, but by the time I got over  26 there it was pretty well over.  27 Q   Can you recall at this time who was present when you  28 signed your affidavit?  29 A   It's really hard for me to say because it's been  3 0 quite a while ago.  31 Q   That's fine.  Even longer ago on February 6, 19 87  32 you swore another affidavit answering questions and  33 that's when you included a list of your house  34 members.  Do you recall that?  35 A   He says the list should have him, Violet, Anna,  36 Roddy and all of Anna's children and Sandra's.  37 Q   In another question, question 62 you were asked:  3 8 "Does your house possess any documentary evidence of  39 ownership of this territory." Could you translate  40 that, please? And the answer you gave was:  "Yes,  41 there is a trapline registration in my name and my  42 songs, regalia, pole and adaawk."  43 A   Yes.  44 Q   When you mention the trapline registration, were you  45 talking about the trapline registered to Joseph  46 Wesley of which you are a member?  47 A   The one that you are probably talking about is one 14  E. Hyzims (for Plaintiffs)  Cross-exam by Ms. Sigurdson  1 that was taken out a long time ago.  And what we did  2 was we went to the Indian office and we were given  3 little cards or permits.  Joseph trapped on one part  4 of the territory and we trapped on another part.  5 Q   All right.  I'm showing you an application for  6 registration of a trapline of Joseph Wesley and ask  7 if you've seen that before?  8 A   No.  9 MS. SIGURDSON:  On the second page which would be the back of  10 the original it lists the members.  And the members  11 are Joseph Wesley, Ernest Hyzims, Joseph Wright and  12 Andrew Sampare.  Are those the people who are on the  13 trapline, the registered trapline?  14 MR. ADAMS:  Sorry, just a second.  On which registered trapline  15 because he has never seen this before.  16 MS. SIGURDSON:  17 Q   Of Joseph Wesley and Company?  18 A   A long time ago.  19 Q   I suggest the line was registered — before the line  20 was registered to Joseph Wesley, do you know who the  21 line was registered to before Joseph Wesley?  22 A   No.  They never really had anything to do with the  23 territory before, but they only use it through our  24 grandfather.  25 Q   Was Joseph Wesley a member of the house of Nikateen?  26 A   Yes.  27 MS. SIGURDSON:  I have a note here of Mr. Sterritt's — pardon  2 8 me, I have a note that Mr. Sterritt took of a  29 conversation with you and Stanley Williams on March  30 3, 1988.  And he writes:  "Gwagl'lo's territory went  31 up Xsi Giist from Dekwit until Joseph Wesley, wilps  32 Nikateen came down."  33 THE INTERPRETER:  Which part were you reading?  34 MS. SIGURDSON  35 Q    This.  36 A   Joseph Wesley came right from the village of  37 Gitsegukla and it was my uncle who brought them into  38 the house.  It wasn't me who did it, it was my  39 uncle.  He was like a brother to Joseph Wesley.  40 MS. SIGURDSON:  Those are all my questions.  Thank you, Mr.  41 Hyzims.  42 MR. MACAULAY: Are you going to mark that?  43 MS. SIGURDSON:  I would like to take care of two matters.  One  44 is that on Exhibit 1 the question in brackett C:  45 "What are the boundaries of your house's territory?"  46 The question number was not included on the  47 photocopy and that should be 59C.  I assume you have 15  E. Hyzims (for Plaintiffs)  Cross-exam by Mr. Macaulay  1 no objection to that being on the record.  The  2 second matter is that Mr. Hyzims looked at an  3 original of the map of Gwagl'lo that was attached to  4 the interrogatory response and also I understand has  5 been marked as 692 for identification at trial.  I  6 suggest this map either replace or be added to the  7 affidavit copy as this is the map he looked at.  8 MR. ADAMS:  I am happy to have it replace it.  So the original  9 map will now become part of Exhibit 1 in his  10 cross-examination.  11  12 CROSS-EXAMINATION  BY  MR.   MACAULAY:  13 Q Mr.   Hyzims,   did you  know John Wesley who used  to  14 live at Gitsegukla?  15 A Yes.     Yes,   I  knew him.     His house used to be where  16 Norman Wright has  his  house now on  the  old Highway  17 16.  18 Q   And what were his house and his clan?  19 A   Nikateen.  20 Q   And what clan is that?  21 A   Ganada.  22 Q   Do you remember that John Wesley made a will in  23 which he left his trapline to Joe Wright?  24 A   No.  25 Q   Did you know Joe Brown who used to live at  26 Gitsegukla?  27 A   Yes.  28 Q And what was  his house?  29 A That's  the Gisgaast head chief Xsgogimlaxha.  3 0 Q Did Joe Brown ever  go  trapping on  the —  on your  31 territory?  32 A   No.  33 Q   Did your house have a longhouse at Gitsegukla?  34 A   No.  35 Q   During your lifetime did anyone who had the name  36 Gwagl'lo put up a pole?  37 A   There is one in Gitsegukla now and I have one that  38 has been carved.  I have a copy that has been carved  3 9 of it now.  40 Q   The one that is in Gitsegukla now, when was it put  41 up?  42 A   You know where the old village of Gitsegukla used to  43 be down by the river, and that was where all the  44 totem poles were.  And one — another totem pole  45 fell over and it hit Gwagl'lo's pole and it went  46 over too.  It almost floated down the river.  That  47 was when we took it and we pulled it up to the 16  E. Hyzims (for Plaintiffs)  Cross-exam by Mr. Macaulay  1 present village.  It is laying by my house now.  2 Q   But who was the chief who first put that pole up?  3 A   It was Alec Brown when he was still strong.  4 Q   So that is the chief who died in 1943?  5 A   Yes.  6 Q   And do you remember when he put that pole up for the  7 first time?  8 A   I was very small at the time and my mother also told  9 me about it.  My mother's name was Elizabeth.  10 Q   Was it after you were born or was it before you were  11 born that that pole was first carved and put up by  12 Alec Brown?  13 A I wasn't born yet.     But my mother  told me  all  about  14 it.  15 Q   Do you remember when the old village was damaged by  16 a flood?  17 A   Yes, 193 6.  And some of the poles drifted away.  18 Q   Was that the year that you went down to Vancouver by  19 train in order to get up to Prince Rupert for  20 commercial fishing?  21 A   That was the year I went fishing with Freddy.  22 Q   Did you take the train to Vancouver and then a ship  23 to the fishing grounds?  24 A   Yes.  25 Q   And did most of the men and women in Gitsegukla go  26 down on that train to Vancouver that year?  27 A   Yes, some of them came from Kispiox and some from  28 Hazel ton.  29 Q   Did the children go — that year, did children also  30 .       go to the fishing grounds with their parents?  31 A   Down the coast?  32 MR. MACAULAY:  To the cannery.  Did the children also go out to  33 the canneries when their parents went to the fishing  34 grounds?  35 MR. ADAMS:  Are you asking about that year still?  36 MR. MACAULAY:  37 Q   That year.  3 8 A   Yes, they all went.  39 Q   And up to the time that the war started, was it —  40 was that the custom for the children to go with  41 their parents to the canneries?  42 A   Yes, because there was no one else to look after  43 them at home.  44 MR. MACAULAY: What members of your house go out on the trapline  45 and Miinhl Dekwit territory with you.  46 MR. ADAMS: Are you asking about the house territory that is  47 described in the affidavit? 17  E. Hyzims (for Plaintiffs)  Cross-exam by Mr. Macaulay  1 MR. MACAULAY:  There is a house territory described as Miinhl  2 Dekwit.  3 MR. ADAMS: But it is the one in paragraph 5 of the affidavit  4 that you are asking about? This is the whole  5 problem of the difference between a registered  6 trapline and the house territory, and I just want it  7 to be clear what you are asking him.  8 MR. MACAULAY:  9 Q   Yes, the one described in paragraph 5.  10 A   At the time of this affidavit or —  11 Q   Yes, at the time of this affidavit?  12 A   Violet and them used to go out with me I think maybe  13 around '48.  The last time I remember going out on  14 there was 1947 with Godfrey Wesley.  15 Q   Did you stop trapping after the 1947 season?  16 A   That was last time I was able to go out there before  17 I got sick.  But since I've been sick I have not  18 been able to go out.  19 Q   And since you got sick and were unable to go out to  20 that territory, which members of your family have  21 been out trapping?  22 A   No one.  23 Q   No one?  24 A   No one.  25 Q   Is there any member of Wii Lo'op, your house, that  26 has been using that territory since you stopped  27 going out there?  28 A   No one used it, but it has been logged off and there  29 is really nothing out there.  3 0 Q   When was it logged off?  31 A   I can't remember the time they started logging it  32 off.  33 Q   Did the logging start a long time ago, ten years ago  34 or 20 years ago?  3 5 A   Ever since they've started logging up in that area  36 they have put in roads whereas before there used to  37 be just a trail that we would go up to.  And they  3 8 have taken all the trees out and there is really  3 9 nothing on the territory, and there are no animals  40 even to hunt for food.  41 Q   In your lifetime, has any house at Gitsegukla given  42 a hunting or trapping territory to another house as  43 compensation?  44 A   No.  45 Q   Did your mother tell you that it used to be the law  46 that in certain circumstances one house would give  47 territory as compensation to another house for some 18  E. Hyzims (for Plaintiffs)  Cross-exam by Mr. Macaulay  1  2  A  3  4  5  6  7  Q  8  A  9  Q  10  11  A  12  Q  13  14  A  15  16  Q  17  A  18  19  Q  20  A  21  Q  22  23  A  24  Q  25  A  26  27  Q  28  A  29  Q  30  31  A  32  Q  33  34  A  35  Q  36  A  37  Q  38  39  A  40  Q  41  42  A  43  44  Q  45  A  46  Q  47  wrongdoing?  Yes, that was — that is the laws of our people.  And that is what happened when Abraham — when the  gun went off and hit Walter and that was David Wells  and them did.  They gave part of their territory to  them.  Was David Wells a member of your house?  No, he comes from the Eagle Clan.  But it was the Eagle Clan who gave territory in  compensation?  All of my children belong to the Eagle Clan.  How long ago was it that that territory was given in  compensa ti on?  It was a long time ago.  That was when Abraham was  still young and when he himself was hurt.  Was it more than 30 years ago?  It's been quite a while back.  Abraham was born in  1948, and he is passed away too.  Is any member of your house a halyat?  What do you mean?  Well, halyat was a — do you understand — do you  understand what the term halyat means?  Do you mean a doctor?  Yes.  My father Paul Hyzims was.  He was a doctor before  doctoring comes around.  But your father is no longer alive?  He died in 1931.  Since then is there any — in Wii Lo'op has there  been any halyat?  No.  Do you know of any halyat in Gitsegukla, in other  houses?  They have all gone.  Is there any secret society now in Gitsegukla?  No.  Do you remember when there was — there were secret  societies or either one or more secret societies?  No, they have all died.  Do you remember grave houses being built in your  lifetime?  Yes,   I  saw one where we have our smokehouse now  where Alec Brown's wife was buried.  And she was a chief?  Yes.  And is it your understanding it was the custom to  put up a grave house whenever a chief was buried? 19  E. Hyzims (for Plaintiffs)  Re-exam by Mr. Adams  1 A   Yes, that was what they used to do when somebody  2 died a long time ago.  You can still see some of  3 them like the graveyard in Gitsegukla now.  4 Q   Has any grave house been built since you became the  5 head chief of your house?  6 A   No, they just use a fence now and they put up a  7 headstone.  8 Q   So that customs has changed since the old days?  9 A   Yes.  10 MR.   MACAULAY:     Those  are my questions.     Thank you,   Mr.   Hyzims.  11  12 RE-EXAMINATION BY MR. ADAMS:  13 Q   Mr. Hyzims, I just have two or three questions for  14 you that come out of things that you were asked this  15 morning and this afternoon by Miss Sigurdson and Mr.  16 Macaulay.  Miss Sigurdson this morning and Mr.  17 Macaulay this afternoon have asked you about fishing  18 at the coast, and particularly they referred to  19 1936.  My question is have you fished at any time on  20 the Skeena River?  21 A   I fished there in the early spring and right through  22 the summer.  23 Q   And where is there when you say you fished there?  24 A   There are three fishing sites right down below where  25 the smokehouse is.  There is one for spring, one for  26 sockeye and one for coho.  There is three sites.  27 Q   Can you say where the smokehouse is in relation to  28 the village of Gitsegukla?  29 A   The smokehouse stands right up on top of where the  30 spring salmon fishing site is.  And that is where  31 the grave is right in front of where the smokehouse  32 is standing now.  That is a hereditary land.  It was  33 passed on from the previous holders of Gwagl'lo.  34 There used to be a house there and when they put the  3 5 highway through they took part of that territory.  36 The same thing happened to where my mother used to  37 live right on the corner they took a good chunk of  3 8 that territory off when they put the highway in.  3 9   MR. ADAMS: You mentioned three fishing sites for different  4 0 kinds of fish.  Did those sites have names?  41 MS. SIGURDSON:  I object.  That's quite far afield from the  42 cross-examination.  I think the original question  43 did you fish on the Skeena is on the line, but  44 further detail isn't part of the cross-examination.  45 MR. ADAMS: Well, the issue of fishing is opened by both  46 cross-examinations and I am asking about fishing.  47 There is no warrant to confining it to salt water 20  E.   Hyzims   (for  Plaintiffs)  Re-exam by Mr.   Adams  1 and there is no —  2 MS. SIGURDSON:  I object.  It is improper cross-examination, but  3 my objection is on the record and we can deal with  4 it later.  5 MR. ADAMS:  So you are agreeable to have him answer the question  6 and subject to argument later?  7 MS. SIGURDSON:  Yes.  8 MR. ADAMS:  9 Q   I asked him about three fishing sites and I have  10 asked him the names of those?  11 A   Gwin lo ga lo'op is the name of spring salmon site.  12 Anx tsidixs for the sockeye.  And for the coho site  13 An guus ga sgii is the name of it because there is a  14 rock that goes down through the middle of the river  15 and it goes sideways, right across the river sort of  16 sideways.  A long time ago it used to go straight  17 across the river, but when the steam boats came up  18 the river they blew a part of it off, that's why you  19 only see a small part of it today.  20 Q   Whose fishing sites are those?  21 A   It's ours.  22 Q   Who is the our that you are referring to when you  23 say "it's ours"?  24 A   That's Gwagl'lo's, Wii Lo'op and that would be where  25 Winnie and them will be fishing when I go this  26 coming season.  We just go by how high the water is  27 when we go — when we start fishing.  We don't go by  28 what the fisheries tell us.  29 Q   All right.  Mr. Macaulay asked you a question just a  3 0 few minutes ago and he was asking about the giving  31 of territories as compensation for wrongdoing.  And  32 you can translate that far and then I will ask him a  33 question.  And then your evidence was my mother told  34 me it used to be the law to give territory in  35 compensation.  36 A   Yes, that is Gitksan law, but no one has done it in  37 our house.  3 8 Q   My question is is that still the law in the right  39 circumstances?  40 A   That is the law.  41 Q   One more question.  I want to show you again the  42 map.  Maybe I could have the original of the map  43 that is attached to Exhibit 1.  This is the map that  44 Miss Sigurdson showed you this morning, and you were  45 asked a number of questions about places on that map  46 and boundaries shown on that map.  And I just want  47 to ask you this, quite apart from the map, are you 21  E. Hyzims (for Plaintiffs)  Re-exam by Mr. Adams  1 familiar with a place called Tsim an makhl?  2 A   I don't think I can see it on this map.  3 Q   My question first was apart from the map, are you  4 familiar with a place by that name?  5 A   If we go up there we could go by car I could show  6 you where it is.  7 Q   Would you show me on the map where it is, please?  8 A   Where is Miinhl Dekwit?  9 Q   Are you able to show me where as Tsim an makhl is?  10 A   No, I can* t.  11 MS. SIGURDSON:  I think I should say for the record here that I  12 would refer in the transcript to page 7 824, lines 16  13 to 23 where Mr. Sterritt explains that that feature  14 is misiocated on the map and I think that should be  15 on the record at the same time.  16 MR. ADAMS:  Fine.  I didn't hear the answer to my own question  17 which was can you show me on the map?  18 THE INTERPRETER:  He says he can't see it.  19 MR. ADAMS:  20 Q   I would like to ask you without the map about  21 another place and tell me whether you are familiar  22 with this place and that is Tax gii gyoot?  23 A   That's where you hunt mountain goat.  24 Q   Okay.  25 A   The same as Wii Lo'op, it is right next to that.  We  26 stop right on top of Wii Lo'op by helicopter you can  27 locate everything.  28 MR. ADAMS:  Sorry, I'm not quite finished with the map.  I just  29 want to ask the parallel question about those  30 places.  31 MR. MACAULAY:  Sorry.  32 MR. ADAMS:  33 Q   I wonder if you could show me on the map where Tax  34 gii gyoot and Wii L'op are?  35 A   It's close behind what we call Dekwit going out  36 towards Gitsegukla.  I can ride in a car and show  37 you.  If we go up there we go by car I could show  3 8             you where these places are.  39 MR. GRANT:  It was by Deep Creek is what he said, Mr. Macaulay.  40 MR.   MACAULAY:     Agreed.  41 MR.   ADAMS:  42 Q   Can you show me on the map where Wii Lo'op is?  43 A   No, he doesn't — what is this?  44 Q   For the record, the witness is pointing to the part  45 of the map that says Miinhl Dekwit.  46 A   He thinks that if Miinhl Dekwit is here then Wii  47 Lo'op should be behind it somewhere. 22  E. Hyzims (for Plaintiffs)  Re-exam by Mr. Adams  1 MR. GRANT:  He said something about it being far apart.  2 MR. ADAMS:  Those are all the questions that I have, thank you.  3 (PROCEEDINGS CONCLUDED)  4  5  6 I hereby certify the foregoing to  7 be a true and accurate transcript  8 of the proceedings herein to the  9 best of my skill and ability.  10  11  12  13 LISA FRANKO, OFFICIAL REPORTER  14 UNITED REPORTING SERVICE LTD.  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

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