Delgamuukw Trial Transcripts

Cross-Examination on Affidavit of Thomas Jack British Columbia. Supreme Court Dec 16, 1988

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 <31n ti\t £uprtmt Court of ^Brittsff Columbia  Na 0843  Smithers Registry  Smithers, B. C.  December 16, 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  THOMAS 3ACK  P.R. Grant, Esq. and  M. Adams, Esq.  O.M. Mackenzie, Esq.  M.W.W. Frey, 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 Return of Registered Trapline Holder 9  2 ID     Application for Crown Land dated  August 6, 1981, two pages and map 10  3 Letter dated December 14, 1981 11  4 ID     Correspondence from Canada Document  #10638 14  5 Survey Note dated Oune 4, 1979 15  6 Survey Note dated June 4, 1979 15  7 Data Sheet dated June 4, 1979 15  8-24 ID   Topographic Data Sheets, 17 sheets 17  25 ID     David Gunanoot, N.O.S.. dated  December 16, 1982, pgs 41 - 47 18  26 Neil Sterritt's Notes of Interview  with T. Oack dated May 12, 1988 19  27 Letter dated July 2, 1975 22  WITNESS  OACK, Thomas  Cross-examination by Mr. Mackenzie  Cross-examination by Mr. Frey  Re-examination by Mr. Grant  1  19  20 X  T.   Jack   (for Plaintiffs)  Cross-exam by Mr.   Mackenzie  1 SMITHERS, B.C.  2 December 16, 1988  3  4 THOMAS JACK, a witness on behalf  5 of the Plaintiffs, having been  6 duly sworn, testifies as follows:  7  8 A. SAMPSON: Interpreter previously  9 sworn  10 S. HOWARD:  Translator previously  11 sworn  12  13 MR. GRANT:   Just before Mr. Jack's examination begins, I want  14 to advise my friends on the record of a number of  15 things pertaining to his situation.  Mr. Jack has a  16 number of medical problems.  He first of all has a  17 speech impediment which will become apparent as he  18 testifies.  He is able to speak most English and  19 Gitksan.  He has advised us that he is more  20 comfortable speaking in Gitksan and for that reason  21 he will be using an interpreter, and Miss Sampson  22 has made herself available for that purpose.  23 Secondly, Mr. Jack has a heart condition for  24 which he is under medical treatment and has  25 medication.  And he advised me last night that he  26 was under medical advice to in a stressful situation  27 take frequent breaks.  I have been in touch with his  28 doctor's office this morning and have confirmed  29 through his doctor's office that advice.  So we will  3 0 be asking that he take frequent breaks to give him a  31 chance to rest.  Finally, I have been advised that  32 he has some difficulty in hearing and therefore I  33 would ask all the people questioning him to speak up  34 for his benefit.  Mr. Adams has provided that  3 5 information because he was the person contacting the  36 doctor's office.  Can you explain to Thomas if he  37 wants a break at any time he should say so.  38  39    CROSS-EXAMINATION BY MR. MACKENZIE:  4 0 Q   Mr. Jack, my name is James Mackenzie and I represent  41 the provincial government.  I wish to ask you some  42 questions, please.  43 A   Okay.  44 Q   Mr. Jack, did you sign an affidavit?  45 A   Yes.  46 Q   And you signed your affidavit in May of this year?  47 A   Yes. T. Jack (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 MR. MACKENZIE:  Have you ever signed any other affidavits?  2 MR. GRANT: With respect to this proceeding?  3 MR. MACKENZIE:  4 Q Any other affidavits?  5 A No.  6 Q Did you ever appear in court before?  7  8 (NO AUDIBLE RESPONSE)  9  10 Q In what connection was that?  11 A It is in connection with our fishing.  12 Q And which fishing was that, Mr. Jack?  13 A In Fort Babine.  14 Q When you were you born, Mr. Jack?  15 A July 17, 1929.  16 Q And which languages do you speak?  17 A The English language and the Gitksan language.  18 Q Do you have a name in Gitksan?  19 A No.  20 Q Are you the member of a house?  21 A Yes.  22 MR. GRANT: Gitksan house?  23 THE WITNESS:  Yes.  24 MR. MACKENZIE:  25 Q Are you the member of a Gitksan house?  26 A Yes.  27 Q What is the name of your house?  28 A Nii Kyap's house.  29 MR. MACKENZIE:  Are you a member of any other houses?  3 0 MR. GRANT: Gitksan houses?  31 MR. MACKENZIE:  32 Q Any other houses, Gitksan or any other houses?  33 A No, just Nii Kyap's.  34 Q Where were you born, Mr. Jack?  35 A Bear Lake.  36 Q And where have you lived since your birth?  37 A I have lived in Bear Lake until 1950, and then I  38 left.  But I've been going back and forth to Bear  39 Lake.  40 Q Where did you go when you left Bear Lake?  41 A To Burns Lake.  42 Q Why did you leave Bear Lake?  43 A Most of the people left Bear Lake.  Some went to  44 Takla, some went to Burns Lake, some went to  45 Hazelton.  46 Q What was the reason people left?  47 A The reason why people left was because the man that T. Jack (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1  2  3  4  Q  5  A  6  Q  7  A  8  Q  9  A  10  MR. GRANT:  11  12  13  14  MR. MACKEN  15  Q  16  A  17  Q  18  A  19  Q  20  A  21  Q  22  A  23  Q  24  A  25  Q  26  A  27  Q  28  A  29  Q  30  A  31  Q  32  A  33  Q  34  A  35  Q  36  A  37  Q  38  A  39  Q  40  A  41  Q  42  43  A  44  Q  45  A  46  Q  47  A  had a store there by the name of Carl left Bear  Lake.  There was no one there that had a store so  all the people left.  Your mother was Mary Jack?  Yes.  Your  father was  Peter Murdock?  Yes.     He's  deceased now.  And your mother Mary Jack, is she alive?  She passed — she passed away December 10, 19 87.  Just stop for a minute, please.  Go off the record.  (DISCUSSION OFF THE RECORD)  Your father was from Fort St. James?  Yes.  Mary Jack's mother was Sophie Jack?  Yes.  Mary Jack's  father was  Chief   Charlie?  No,   John Jack is  the  name.  Yes,   sorry.     John Jack's name was Alayst?  No.  Sorry.  Where did John Jack come from?  Kisgagaas.  And where did Sophie Jack come from?  From the same also.  And Paul Jack was your mother's brother?  Yes.  And he is still living?  Yes.  He lives in Hazelton?  Yes.  And he  left Bear Lake  about  the  same  time you  did?  Yes.  Is  he also known as  Saa po'liyaa?  Yes.  Elsie Patrick was also your mother's sister?  Yes.  Elsie's husband was Bob Patrick?  Yes.  What tribe or Indian nation did Bob Patrick belong  to?  Sekani.  Was your father Sekani?  No.  What  Indian nation?  From Fort St.   James. T. Jack (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 Q Did Paul Jack marry Kate Patrick?  2 A There is a Kate Jackson that Paul stayed with.  3 Q Do you know whether Kate Jackson was married before  4 she stayed with Paul?  5 A Yes.  6 Q Was she married to Dennis Patrick?  7 A Yes.  8 Q Did you know Dennis Patrick?  9 A Yes.  10 Q And he was a Stikine?  11 A Yes.  12 Q He did not speak Gitksan?  13 A Just a part.  14 Q Did Dennis Patrick come from Caribou Hide?  15 A Yes.  16 Q Your father — was your father's brother Abraham?  17 A No.  18 Q Was your grandfather's brother Abraham?  19 A Yes.  20 Q Yes.  Did you know Abraham's chief name?  21 A No, I was too small.  I don't remember.  22 Q Now, Abraham's son was Thomas Abraham, was he?  23 A Yes.  24 Q And did you know Peter Abraham?  25 A Yes.  26 Q He was in that family also?  27 A Yes.  28 MR. GRANT: What was the first name you said?  29 MR. MACKENZIE:  3 0 Q Thomas.  And was Walter Abraham in that family?  31 A Yes.  32 Q And your mother married Walter Abraham?  33 A Yes.  34 Q And she had a son Henry?  35 A No.  36 Q What was the name of her son?  37 A Frank.  He is deceased.  3 8 Q Thomas Abraham, was he a Sekani?  39 A He is from Kisgagaas, Thomas.  40 Q Did you know Michelle Abraham?  41 A Yes.  42 Q Was he Sekani?  43 A No, he's not a Sekani.  He is also from Kisgagaas.  44 MR. MACKENZIE:  Did Thomas Abraham have a registered trapline  4 5 near your uncle's trapline?  46 MR. GRANT: His uncle's registered trapline?  47 MR. MACKENZIE: 5  T. Jack (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 Q Near Paul Jack's registered trapline?  2 A Yes.  3 Q Was it just north of Bear Lake?  4 A Yes.  5 Q And was it east of the Bear River?  6 A It's on the north side.  7 MR. MACKENZIE:  Did Thomas Abraham own Dam Giist?  8 MR. GRANT: Just a moment.  You are talking now not of  9 registered traplines?  10 MR. MACKENZIE:  11 Q No.  Do you know Dam Giist?  12 A Yes.  13 Q And did Thomas Abraham own Dam Giist?  14 A Part of it is his.  15 Q Who owns the rest of it?  16 A Ours is on the south side of Dam Giist.  It belongs  17 to us.  18 Q And Thomas is on the north side?  19 A Up north.  20 Q Yes.  And did Thomas Abraham have his registered  21 trapline near Dam Giist?  22 A Michelle Abraham and Thomas Abraham have the same  23 trapline on the north side.  24 Q Is that the north side of Dam Giist?  25 A Yes.  26 Q Your uncle Paul Jack had a registered trapline east  27 of Bear Lake, correct?  28 A Yes.  29 Q And you are a member of that registered trapline?  30 A Yes.  31 Q And you know the — do you know the boundaries of  32 the Paul Jack registered trapline?  33 A Yes.  34 MR. MACKENZIE:  And the south boundary is Bas Lain Lii?  35 MR. GRANT: Just to be clear, you are now asking him — you are  36 referring the interpreter to the affidavit just for  37 the words, but you are asking about a south boundary  3 8 of the registered trapline?  39 MR. MACKENZIE:  Yes.  40 MR. GRANT: Not of the territory.  Just if you can translate  41 what I've clarified to Mr. Jack and ask him.  42 THE INTERPRETER:  Could you rephrase that again, please?  43 MR. MACKENZIE:  44 Q The south boundary of the registered trapline is Bas  45 Lain Lii?  46 A Yes.  47 Q And did you trap on Paul Jack's registered trapline? 6  T.   Jack   (for  Plaintiffs)  Cross-exam by Mr.   Mackenzie  1 A   Yes.  2 MR. MACKENZIE:  Did you apply to build trapline cabins on that  3 registered trapline?  4 MR.   GRANT:     The witness personally you are asking?  5 MR. MACKENZIE:  Yes.  6 THE INTERPRETER:  What do you mean apply?  7 MR. MACKENZIE:  8 Q   Did you apply for a permit to build registered  9 trapline — to build cabins on that registered  10 trapline?  11 A   Yes.  12 MR. MACKENZIE:  And did you apply to the provincial government?  13 MR. GRANT:  Just a moment.  What date and time frame are you  14 talking about?  15 MR. MACKENZIE:  Early 19 80*s.  16 MR. GRANT:  Pre or post 19 80?  17 MR. MACKENZIE:  Oh, 19 82.  18 MR. GRANT:  Is this on the list of documents?  19 MR. MACKENZIE:  Yes.  20 MR. GRANT:  From your list?  21 MR. MACKENZIE:  Yes, A.G.B.C. 4434.  22 MR. GRANT:  Go ahead.  23 MR. MACKENZIE:  24 Q   Did you apply for a permit from the provincial  25 government?  26 A   Yes, here in Smithers and they told me to go ahead  27 and build the cabins.  28 Q   When did you last trap on Paul Jack's registered  29 trapline?  3 0 A   19 82.  I went with my son Charlie, and he was the  31 one that was setting the traps there.  32 MR. MACKENZIE:  What has been your occupation since you left  33 Bear Lake, Mr. Jack?  34 MR. GRANT:  You mean wage employment?  35 MR. MACKENZIE:  36 Q    Yes.  37 A   I've been working in the sawmills.  I've been  38 falling.  Also I've been working as a carpenter.  3 9 MR. GRANT:  I request given the background that there be a break  40 at a convenient time, but at about ten after four if  41 we can take a break or any time before then that you  42 find is convenient.  43 MR. MACKENZIE:  44 Q   I will just finish up in this area then.  At Bear  45 Lake did you know Arthur Sampson?  46 A   Yes.  47 Q   Did you know William Charlie? T.   Jack   (for  Plaintiffs)  Cross-exam by Mr.   Mackenzie  1 A   Yes.  2 Q   What language does William Charlie speak?  3 A   He uses the Gitksan language, the Carrier language  4 and the English language.  5 Q   Does William Charlie live at Takla Landing now?  6 A   Yes.  7 MR. MACKENZIE:  Yes.  Can you say whether William Charlie is a  8 Gitksan or Sekani or Stikine?  9 MR. GRANT:  In terms of whether his mother came from the  10 Nappally Way or in terms of the band membership or  11 what are you talking of?  There are many options  12 there.  I just ask that you clarify in what sense  13 you are asking.  14 MR. MACKENZIE:  15 Q   Where did William Charlie's mother come from?  16 A   She came from Old Fort.  17 Q   So when you lived at Bear Lake, there were people  18 living there whose mothers came from Kisgagaas, Old  19 Fort, Caribou Hide, and Fort St. James?  20 A   Yes.  21 MR. GRANT:  We will take a break now, Thomas.  22  23 (BRIEF ADJOURNMENT)  24  25 THE WITNESS:  Before he asks me anymore questions, I want to go  26 back to the question about what he asked me about  27 Bear Lake.  2 8   MR. GRANT:  The witness has indicated he wants to go back to  29 what you said, so maybe he can give the answer or  3 0 the further explanation if any that he has.  31 THE WITNESS:  The real reason why the people left Bear Lake was  32 because of the murder that was committed there by  33 Jimmy Louie.  They were all alone in the village,  34 Jimmy, his mom and William Dennis.  They made some  3 5 home brew and they all got drunk, and this is when  36 Jimmy Louie committed murder.  He killed William  37 Dennis after they were drunk.  They were all by  3 8 themselves in that village.  This is one of the  39 reasons why all the people dispersed from that  40 village.  41 After the murder was committed the Indian  42 agent known as Mr. Howe talked to each individual in  43 that village.  He asked each person where they  44 wanted to move.  He said: Wherever you want to  45 move, we will build you a house.  We will make a  46 farm.  We will start giving you — we will start off  47 with giving you a cow, a pig, a chicken and we will 8  T. Jack (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 make you a garden.  He asked each individual where  2 they wanted to move and after the people of Bear  3 Lake moved away they've never seen anything —  4 nothing was given to them like what the Indian agent  5 promised them.  And this is why the people all  6 dispersed from Bear Lake because of that Indian  7 agent's promises and his lies.  8 MR. GRANT:  Is the witness finished his answer?  9 THE INTERPRETER:  Yes, he is finished.  10 MR. MACKENZIE:  Did you know where Dennis Patrick's trapline  11 was?  12 MR. GRANT:  Registered?  13 MR. MACKENZIE:  14 Q   Registered trapline?  15 A   No.  16 Q   Did you know where Kate Patrick's registered  17 trapline was?  18 A   Yes.  19 Q   And where was that?  20 A   It's on your left-hand side of Bear River.  It's  21 towards the Skeena junction — towards the Sustut at  22 the Skeena junction at Xsi gwin Gyila'a.  23 Q   When you say "left", you mean facing down the Bear  24 River it's on the left side?  25 A   Facing down.  26 Q   And did you trap on that trapline?  27 A   Yes.  2 8 Q   And did your mother Mary Jack trap on that trapline?  29 A   Yes.  3 0 Q   And that trapline is between the Sustut River and  31 Squingula River?  32 A   Yes.  33 Q   And whose territory was Kate Patrick's registered  34 trapline in?  3 5          A   Nii Kyap.  36 Q   And O'Yee was responsible for that territory?  37 A   Yes.  3 8 Q   Did you know Samuel Brown?  39 A   I wasn't born yet when he passed on.  40 MR. MACKENZIE:  Who was O'Yee when you were trapping on the  41 territory?  42 MR.   GRANT:     On which?  43 MR.   MACKENZIE:  44 Q   I'm sorry.  Who was O'Yee when you were trapping on  45 Kate Patrick's registered trapline?  46 A   Paul.  47 Q   Paul Jack? T.   Jack   (for  Plaintiffs)  Cross-exam by Mr.   Mackenzie  1 A   Yes.  2 Q   Does Paul Jack still hold the name O'Yee?  3 A   No.  4 Q   When did Paul Jack give up the name O'Yee?  5 A   I don't know when Joshua McLean took that name.  6 MR. MACKENZIE:  O'Yee's boundary was Squingula?  7 MR. GRANT:  This is the territory?  8 MR. MACKENZIE:  9 Q   Was O'Yee's boundary on Squingula?  10 A   Yes.  This is where Paul and Kate trapped.  11 Q   Who owned the territory on the other side of  12 Squingula?  13 A   I can't tell you because I don't know.  14 MR. MACKENZIE:  Did you know Xsim Xsaan?  15 THE INTERPRETER:  What are you saying?  Is that a person or a  16 place?  17 MR. MACKENZIE:  18 Q   Yes, that's a person.  Henry Wright's father.  19 A   No, I don't think so.  20 MR.   GRANT:     Just  for   the record,   the explanation that you  gave  21 to  the   translator  that  it was Henry Wright's  father  22 was not  translated.  23 MR.   MACKENZIE:     I'm  showing you a  registered  trapline return.  24 THE  INTERPRETER:     What was   the question?  25 MR.   GRANT:     He  didn't  ask  one.  26 MR.   MACKENZIE:  27 Q   I'm showing you a return for a registered trapline.  28 I understand that's Paul Jack's trapline.  Did you  29 sign that return?  30 A   Yes.  31 MR. MACKENZIE:  Exhibit 1, please.  32  33 (EXHIBIT 1:  Return of Registered Trapline  34 Holder)  35  36 MR. GRANT:  That document that you've just referred to the  37 document itself is undated, although it purports to  3 8 refer to 1961.  At the place for the dating of  39 documents, there is no date.  40 MR. MACKENZIE:  41 Q   Right.  Now, this is the application for Crown Land  42 dated August 6, 19 81.  Can you identify your  43 signature on the first two pages?  44 A   Yes, both of them are.  45 Q   There are three pages in that document, and the  46 third page is a sketch map.  47 A   This is where I was building the cabins.  I made one 10  T.   Jack   (for  Plaintiffs)  Cross-exam by Mr.   Mackenzie  1 at the lake.  2 MR. GRANT:  He is referring to Azuklotz Lake.  3 MR. MACKENZIE:  This is the map on page 3 of the document.  4 MR. GRANT:  The name is written there.  5 THE WITNESS:  There was a guy named Jack Fletcher.  He had a  6 cabin right over here.  Right here which he gave to  7 Paul.  This is where his cabin was which was given  8 to Paul.  9 MR. MACKENZIE:  Referring to site number 4 on the map.  10 MR. GRANT:  He is referring to the bottom of the — in that  11 vicinity, but it more appears on the bottom of  12 the — in the bottom set of the X.  Inside the X at  13 the bottom.  14 MR. MACKENZIE:  15 Q   You were speaking about Tetana Lake?  16 A   Mh'm.  17 Q   Is that in the — is Tetana Lake in Paul Jack's  18 territory?  19 A   Yes.  2 0 Q   And which house owns that lake?  21 A   Yes, it belongs to Paul because inside the trapline  22 or the territory.  23 MR. MACKENZIE:  Please mark that application dated August 6,  24 1981 three pages as Exhibit 2.  25 MR. GRANT:  I just want to reserve the right to object to its  26 admissibility on the basis of relevance.  I want to  27 reserve the right on that record, so I am wondering  2 8 if maybe I should in that way suggest that it be  29 Exhibit 2 for identification.  There is no question  3 0 it has been identified.  I'm not disputing that.  It  31 is a question of relevance.  But I think it can go  32 in as an — well, no, because if it is marked as an  33 exhibit proper then there leaves me no room to argue  34 it's admissibility as to relevance at a later date.  35 MR. MACKENZIE:  Okay.  Exhibit 2 for identification because it's  36 Christmas.  37  3 8 (EXHIBIT 2 FOR IDENTIFICATION:  Application for  39                 Crown Land dated August 6, 1981, two pages and  4 0 map)  41  42 MR. GRANT:  I can just say one more thing in terms of  43 endeavouring to get you into the Christmas spririt,  44 Mr. Mackenzie.  Possibly if you are talking about  45 the boundaries of registered traplines, of course  46 you are free to ask about those and you may have  47 other interests, but of course generally we have 11  T. Jack (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 been admitting applications for registration of  2 registered traplines.  And I say that generally,  3 especially where those are documents which either  4 our clients or relatives of our clients have signed  5 them.  And it may save you some time so that you  6 don't have to prove the boundaries.  Now, if you are  7 talking about a registered trapline in a white man's  8 name you had better be more cautious, but you may be  9 able to shorten up your cross-examination.  10 MR. MACKENZIE:  11 Q   This is another letter, copy of a letter dated  12 January 14, 19 81.  Is that your letter?  13 A   The original?  14 MR. GRANT:  You are asking if it's his signature, I presume?  15 MR. MACKENZIE:  16 Q    Yes.  17 A   Yes, this is my signature.  18 MR. MACKENZIE:  Next exhibit, please.  19  20 (EXHIBIT 3:  Letter dated December 14, 1981)  21  22 MR. GRANT:  This is a letter that you indicated is from the list  23 of documents 11161?  24 MR. MACKENZIE:  Yes.  25 MR. GRANT:  And it is part of a larger file?  26 MR. MACKENZIE:  Yes, I have that file here.  27 MR. GRANT:  Is there more than what you have given me in that  2 8 file?  You gave me some photocopies?  29 MR. MACKENZIE:  No, that's all.  30 MR. GRANT:  Just a moment.  I think you misunderstood me.  You  31 gave me a batch of document, but that is not the  32 entire contents of the file?  33 MR. MACKENZIE:  No.  34 MR. GRANT:  Okay  35 MR. MACKENZIE:  36 Q   Now, speaking about the territory east of Bear Lake,  37 you described that in your affidavit as Dam Smaex's  3 8 territory?  39 A   Yes.  40 MR. MACKENZIE:  And are the boundaries of Dam Smaex —  41 MR. GRANT:  Dam Smaex.  42 MR. MACKENZIE:  43 Q   Are the boundaries of Dam Smaex's territories the  44 same as Paul Jack's registered trapline boundaries?  4 5 A   It's the same.  46 Q   Do you know a lake called Wilp Maas?  47 A   Yes. 12  T. Jack (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 Q   Do you know a lake Dam Gwits Ahl loots?  2 A   Yes.  3 Q   Are those different lakes?  4 A   Yes, they are different.  5 Q   Do you know the English name for Wilp Maas?  6 A   Azuklotz Lake.  7 Q   Is that an English name or a Stikine name or a  8 Gitksan name, Azuklotz?  9 A   Gitksan.  10 MR. GRANT:  For the record, that's the name that is on the map  11 that you've been referring to, the government map  12 that you've been referring to.  13 MR. MACKENZIE:  You learned about Paul Jack's territory from  14 Paul Jack, didn't you?  15 MR. GRANT:  Just a moment.  Are you talking about Paul Jack's  16 registered trapline because we haven't talked about  17 a Paul Jack territory.  18 MR. MACKENZIE:  I'm sorry, the last question dealt with that  19 exactly.  He said the boundaries are the same as the  2 0 registered trapline.  21 MR. GRANT:  Well, yes, the boundaries of the Nii Kyap territory.  22 MR. MACKENZIE:  That wasn't the question.  23 MR. GRANT:  You said are the boundaries of the Dam Smaex  24 territory the same?  25 MR. MACKENZIE:  Yes.  26 MR. GRANT:  He has described who owns the Dam Smaex territory.  27 MR. MACKENZIE:  2 8 Q You learned about  the Dam Smaex  territory  from  Paul  29 Jack,   didn't you?  30 A Yes.  31 Q   Now, I would like to ask you about O'Yee's  32 territory, Xsi gwin Gyila'a.  33 A   I told you about this earlier where Xwi gwin Gyila'a  34 was, and now you are asking me about it again.  3 5 MR. MACKENZIE:  No, not yet.  36 MR. GRANT:  He will ask you about it again, but he hasn't  37 started.  3 8 MR. MACKENZIE:  3 9 Q   Did you know David Gunanoot?  40 A Yes.  41 Q And he  told you about   the Xsi  gwin Gyila'a  42 territory?  43 A Yes.  44 Q Did you  travel with David Gunanoot  in the Xsi  gwin  45 Gyila'a  territory?  46 A        No,   but  I  travelled with Peter Wilson.     No,   I don't  47 go with David,   but  I  travelled with Peter Wilson. T. Jack (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 Q   Peter Wilson trapped on the territory after Dennis  2 Patrick died; is that right?  3 A   He only trapped there for one winter.  4 Q   Okay.  But you did get some information from David  5 Gunanoot, did you?  6 A   Yes.  7 Q He  told you about  the boundaries  of Xsi  gwin Gyila'a  8 territory?  9 A   Yes.  10 Q   Did you know Fred Gunanoot?  11 A   Yes.  12 Q   And was he O'Yee?  13 A   He doesn't know.  14 Q   Were you aware of — do you know where William  15 Charlie's trapline is?  16 A   Yes.  17 Q   And is that — does he trap on O'Yees' territory Xsi  18 gwin Gyila'a?  19 A    No.  20 MR. MACKENZIE:  Were you aware of a dispute between Fred  21 Gunanoot and William Charlie about the O'Yee  22 traplines?  23 MR. GRANT: When are you referring to?  24 MR. MACKENZIE:  1940.  25 MR. GRANT:  Just a second before you translate the question.  26 MR. MACKENZIE:  27 Q Can  I just  ask  some  other introductory questions  2 8 before I  get into this.     Bear Lake Charlie was  29 William  Charlie's father?  30 A Yes.  31 Q   Do you remember the Gunanoot brothers complaining  32 about Bear Lake Charlie trapping on their territory?  33 A   No, I don't recall anything.  34 Q   Do you remember a dispute between the Gunanoot  35 brothers and Dennis Patrick about trapping on the  36 Xsi gwin Gyila'a territory?  37 A    No.  3 8 Q   Do you remember the Gunanoot brothers complaining  39 about Kate Patrick trapping on the Xsi gwin Gyila'a  4 0 territory?  41 A   No.  42 MR. MACKENZIE:  This is an archival document from the Public  43 Archives of British Columbia, Canada Document 10638.  44 I would like to submit that as the next exhibit for  45 identification.  46 MR. GRANT:  Is this the entire file relating to this matter?  47 MR. MACKENZIE:  Yes, the entire Canada document. T. Jack (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 MR. GRANT:  Well, is it the entire file relating to this matter?  2 MR. MACKENZIE:  I can't answer that question.  3 MR. GRANT:  You don't know?  4 MR. FREY:  I can't give you any confirmation.  5 MR. GRANT:  We will mark it as an exhibit for identification.  6 MR. MACKENZIE:  Perhaps I could just describe it for the record.  7 As I mentioned, it is archival documents.  The  8 documents are correspondence relating to a dispute  9 between the Gunanoot brothers and Bear Lake Charlie,  10 and it contains a map apparently including the Xsi  11 gwin Gyila'a territory which is described here.  12  13 (EXHIBIT 4 FOR IDENTIFICATION:  Correspondence  14 from Canada Document #1063 8)  15  16 MR. GRANT:  The witness indicated that he doesn't know anything  17 about it.  18 MR. FREY:   Sorry, Mr. Mackenzie, what was your description of  19 that document?  20 MR. MACKENZIE:  The dispute relating to traplines on the Xsi  21 gwin Gyila'a territory.  22 MR. GRANT:  I haven't had a chance to read this document.  I  23 just think it should be referred to as  24 correspondence contained in Canada document number  25 10638 from the period of June 17, 1940 to November  26 19, 1940 because I don't want to spend the time  27 right now to read it all and decide whether I agree  28 with the description.  29 MR. MACKENZIE:  3 0 Q Do you  know  the lakes  and rivers on the Xsi  gwin  31 Gyila'a  territory?  32 A Yes.  33 Q   Do you know a lake Dam Xsimootixswit?  34 A   Yes.  35 Q Is  that  in Xsi  gwin Gyila'a  territory?  36 A   Yes.  37 Q   And does Nii Kyap own that lake?  38 A   Yes.  39 Q   Does he own the entire lake?  4 0 A   Yes.  41 MR. MACKENZIE:  Do you know the lake Tarn Atii dawd't?  42 MR. GRANT:  Is it on the list?  43 THE WITNESS:  Yes.  44 MR. MACKENZIE:  4 5 Q   Who owns that lake?  46 A   Nii Kyap.  47 MR. GRANT:  Do you have the spelling for that, please? T.   Jack   (for  Plaintiffs)  Cross-exam by Mr.   Mackenzie  1 MR. MACKENZIE:  2 Q   Do you know the English name for that lake?  3 A   No.  4 MR. MACKENZIE:  With respect to the first lake we mentioned, I  5 am instructed that is Motase, M-O-T-A-S-E, Lake.  I  6 am filing a survey note recorded by Neil Sterritt  7 dated June 4, 1979.  8 MR. GRANT:  The spelling is different then, but I understand  9 that we are referring to the same place as is in  10 paragraph 14 of Mr. Jack's affidavit, the third name  11 under Lakes.  12 MR. FREY:  What's the date of the survey sheet, please?  13 MR. MACKENZIE:  June 4, 197 9.  And I am going to mark the  14 exhibit numbers on, and I will ask the reporter to  15 stamp them afterwards to finish the series and I  16 will complete most of my cross-examination.  The  17 next lake I refer to I am instructed is Drift Lake.  18 I am filing a Neil Sterritt survey note dated June  19 4, 1979 relating to that lake.  It will be Exhibit  20 6.  21  22 (EXHIBIT 5:  Survey Note dated June 4, 1979 by  23 Neil Sterritt)  24  25 (EXHIBIT 6:  Survey Note dated June 4, 1979 by  26 Neil Sterritt)  27  2 8 MR. MACKENZIE:  29 Q   And I just say that the Motase Lake data sheet is  30 Exhibit 5.  Do you know David Green?  31 A   Which David Green are you talking about?  I know two  32 David Greens.  33 Q   I understand this is a David Green from the Gitksan  34 area, Hazelton and Kispiox in that area?  3 5 A   I know a David Green in Hazelton, and I know one in  36 Kispiox too.  37 MR. GRANT:  That shows you, Mr. Mackenzie, your precision hasn't  3 8 advanced us.  39 MR. MACKENZIE:  40 Q   Do you know a creek Gwiis xsi gwin gyila'a?  41 A   I can't recall that.  42 MR. MACKENZIE:  I am filing a data sheet dated June 4, 197 9 with  43 this name on it, and I mark that as page 3-3 0 in my  44 series.  45  46 (EXHIBIT 7:  Data Sheet dated June 4, 1979)  47 16  T. Jack (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR. GRANT:  Off the record.  (DISCUSSION OFF THE RECORD)  MR. GRANT:  During the  these, 17,  understand  break I've looked at a large number of  dated topical survey data sheets.  I  from our discussion when we were off the  record on the break that it is Mr. Mackenzie's  intention to introduce these documents as exhibits  here, although none of them actually refer to this  witness as the informant and there is no indication  that this witness was even present for any of these  interviews.  The interviews are primarily one with Mr.  Gunanoot, David Gunanoot, on December 17th of 82,  December 16th of '82 and another interview with a  Martha Haimadimtxw Sinclair on June 17, 19 83.  I  think that I wish to review the agreement made by  counsel  certain  applies  that it  portion  time to  these  regarding the Sterritt notes.  I'm not  the scope of that agreement and how it  to topographical survey sheets, but given  5:35 and that this is a significant  is  of what's left and  go  marked  I will  it will take us a long  through this, I don't object to having  for identification in this examination,  try to be clear as to why I want them  marked for identification.  I want to ensure that  their admissibility is covered by the agreement or  otherwise which Mr. Mackenzie believes it is.  And  I'm not in a position right now to — there is no  point in us arguing that.  This will save you having  to refer the witness to each and every one of the  places that are on these topographical data sheets,  and subject to the conditions I've put on it all of  these can go in as exhibits for identification now.  I propose they go in sequentially, that is each TPS  sheet will be numbered separately and that they —  and that copies will be provided of them.  So that's  the plaintiffs' position regarding the process.  MR. MACKENZIE:  So that would be for identification, the next 17  exhibits from Exhibit 8 for 17 exhibits.  MR. FREY:  I'm sorry, we are marking those sequentially as  numbers?  Exhibit 8 through to 24 for identification on the  cross-examination of Mr. Jack.  I would want  particularily because of speed — we are not going  to have the reporter mark them now, but I would want  MR. GRANT: 17  T. Jack (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 to be able to get photocopies of them so there is no  2 disagreement in the future as to what documents we  3 are looking at.  This isn't an agreement regarding  4 any topographical data sheets, it is the 17 they  5 showed me.  And of course this doesn't necessarily  6 apply in the future.  7 MR. MACKENZIE:  I wonder if I could just refer to the numbers  8 for clarification, the numbers that appear in our  9 copies.  10 MR. GRANT:  Well, the problems is some of them have been  11 photocopied off and I don't see them.  12 MR. MACKENZIE:  Most of them are on there, I can tell you what  13 the others are.  But that is going to be of  14 assistance because it will assist you in identifying  15 them before you get the copies.  16  17 (EXHIBITS 8-24 FOR IDENTIFICATION:  Topographic  18 Data Sheets)  19  20 MR. MACKENZIE:  You referred to the topographic data sheets  21 which we are going to mark 8 to 24 for  22 identification, and specifically to the interview  23 with David Gunanoot on December 18, 19 82.  And I  24 note that most of the — or several of them deal  25 with an interview on December 16, 19 82.  Only one  26 appears to deal with — a couple of them deal with  27 December 18th.  I want to file the notes of the  2 8 interview of December 18, 19 82.  29 MR. GRANT:  This is from the Neil Sterritt notebooks?  3 0 MR. MACKENZIE:  Yes.  31 MR. GRANT:  The notes you've shown me are not the entire note —  32 are not the notes of the entire interview.  In fact,  33 you have page 41, page 44 and 45 and 46 and 47.  34 MR. MACKENZIE:  46 and 47.  They are the entire notes as far as  3 5 our records.  36 MR. GRANT:  You don't have pages 42 and 43 so if that was  37 inadvertent on your part, if you intend to include  3 8 42 and 43, I think if the notes go in they should go  39 in in their entirety.  40 MR. MACKENZIE:  Yes, I agree.  That is inadvertent.  41 MR. GRANT:  It may well have been beneficial to me, but I'm  42 consistent in my position.  And once again the  43 practice here is that notes of Mr. Sterritt are put  44 in during the cross-examinations for identification  45 so I can review them and ensure that they are there  46 in their entirety.  If you intend to put in —  47 subject to that I don't object to that being marked 18  T. Jack (for Plaintiffs)  Cross-exam by Mr. Mackenzie  1 Exhibit 25 for identification, the note of David  2 Gunanoot, N.J.S  dated December 16, 19 82, pages 41  3 through to 47 inclusive.  4 MR. MACKENZIE:  Yes.  5 MR. GRANT:  Without the need to question the witness about it,  6 at least as far as I'm concerned.  I understand that  7 you are putting these in so that the evidence will  8 be together?  9 MR. MACKENZIE:  Yes.  10  11 (EXHIBIT 25 FOR IDENTIFICATION:  David Gunanoot,  12 N.J.S. dated December 16, 19 82, pgs 41 - 47)  13  14 MR. GRANT:  You will agree you will put in the entire note?  15 MR. MACKENZIE:  Yes.  I don't agree that it should be for  16 identification.  17 MR. GRANT:  Don't disagree, Mr. Mackenzie, it is almost  18 Christmas.  We sorted this out with the Chief  19 Justice just a while ago.  20 MR. MACKENZIE:  21 Q   Mr. Grant, you virtually finished my  22 cross-examination for me with your corporation so I  23 had better get it all the way finished.  Mr. Jack,  24 you signed your affidavit in Burns Lake; is that  25 correct?  26 A   Yes.  27 Q   Was there a lawyer there had you signed your  28 affidavit?  29 A   Yes.  3 0 Q   Do you know who that was?  31 A   Murray.  32 MR. MACKENZIE:  Was the affidavit translated to you before you  33 signed it?  34 MR. GRANT:  In the Gitksan.  35 THE WITNESS:  Mervin is the one that read it to me.  36 MR. MACKENZIE:  37 Q   Was that the first time you saw the affidavit that  3 8 day?  39 A   Yes.  40 Q   Did you have any meetings before that day relating  41 to the affidavit material?  42 A   Yes.  43 Q   And when was that?  44 A   In May.  45 Q   And who did you meet with?  46 A   Neil Sterritt.  47 Q   Did Michelle Abraham own Sustut Lake? ■« o  T. Jack (for Plaintiffs)  Cross-exam by Mr. Frey  1 A   Yes.  2 MR. MACKENZIE:  I would like to file Mr. Sterritt's notes of the  3 interview with Mr. Jack on May 12, 1988 as the next  4 exhibit.  5 MR. GRANT:  Is that the entirety of that interview?  6 MR. MACKENZIE:  Yes, on that date as far as I know.  7 MR. GRANT:  Mr. Mackenzie, when you got your notes you indicated  8 there was notes of another date?  9 MR. MACKENZIE:  Yes.  10 MR. GRANT:  The set I have with me may have gotten mixed up.  I  11 suggest that I have — there may be more than one  12 page of notes on May 12, '88.  How is your set?  13 Does it indicate there is only one page of notes on  14 that date?  15 MR. MACKENZIE:  Yes, I have several notes from May 6th in the  16 same handwriting.  They are all in the same  17 handwriting on May 6th.  18 MR. GRANT:  I understand that.  19 MR. MACKENZIE:  Do you have other notes for May 12th?  20 MR. GRANT: Well, no, I have got the same notes.  I'm just not  21 certain if I have them — the notes I have are —  22 all of them are from May 6th or from May 6th or  23 12th.  It is just that the notes are loose and they  24 may have been mixed up.  In any event, I am not  25 objecting to put it in as for identification.  I  26 will want the entire note from May 12th, that's all  27 I'm concerned about.  Is that your intention to mark  2 8 that as an exhibit?  29 MR. MACKENZIE:  Yes, please.  30  31 (EXHIBIT 26: Neil Sterritt's Notes of Interview  32 with T. Jack dated May 12, 1988)  33  34 MR. MACKENZIE:  No further questions.  35  36 CROSS-EXAMINATION BY MR. FREY:  37 Q   Mr. Jack, I'm counsel for the federal government.  I  3 8 just have one or two questions.  I believe that you  39 said that the last time that you went up to the Dam  40 Smaex territory was in 1982; is that right?  41 A   Yes.  42 Q And  in 19 82   did you also go  to the Xsi  gwin Gyila'a  43 territory?  44 A   No.  45 Q   When is the last time that you have been to the Xsi  46 gwin Gyila'a territory?  47 A   It's been a long, long time. T. Jack (for Plaintiffs)  Re-exam by Mr. Grant  1 Q   Was it before you moved from Bear Lake to Burns  2 Lake?  3 A   We went there again after we moved to Burns Lake.  4 Q   It was in 1950 you went to Burns Lake?  5 A   Yes.  6 Q   And can you remember approximately how many years  7 after you moved to Burns Lake you went up to the Xsi  8 gwin Gyila'a territory?  9 A   About two years after Burns Lake.  10 Q   All right.  And that's the last time you've been up  11 there?  12 A   Yes.  13 Q   And between 1950 when you moved to Burns Lake and  14 19 82, did you go back to the Dam Smaex territory any  15 time in between those years?  16 A   Yes.  17 Q   And how many times did you go during the years — or  18 if you can remember, how many times did you go  19 between the years 1950 and 1982?  20 A   We go back there twice a year in the spring time and  21 in the fall time.  22 Q   Was that the entire answer?  23 A   Yes.  24 Q   And do you — with respect to the Dam Smaex  25 territory, do you look after that territory for Nii  26 Kyap?  27 A   Yes.  28 MR. FREY:  Those are my questions.  29  3 0 RE-EXAMINATION BY MR. GRANT:  I have a few questions to ask you  31 out of the questions you were asked, Mr. Jack.  You  32 were asked by Mr. Mackenzie if you applied to the  33 government for a permit to build your trapping  34 cabins.  I believe this is Exhibit 2 for  35 identification.  It was referred to.  36 MR. MACKENZIE:  I think it is Exhibit 2.  37 MR. GRANT:  For identification.  3 8 MR. MACKENZIE:  Okay.  39 MR. GRANT:  Do you know what would have happened if you had  40 built those cabins without getting a permit from the  41 government?  42 MR.   MACKENZIE:     Objection.  43 THE WITNESS:  No, I don't know what would happen.  44 MR. GRANT:  45 Q   Why did you apply for the permits?  46 A   I want them to know that this is my territory and  47 that I was going to build cabins on my territory. T. Jack (for Plaintiffs)  Re-exam by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR.  MR.  A  GRANT:  A  Q  If you crossed over Xsi gwin Gyila'a to the other  side of the river from Nii Kyap's territory, do you  know whose territory you would be on?  Wii Kaax.  You were asked about whether or not Paul Jack taught  you about the Dam Smaex territory, and you said he  did.  Did Mary Jack, Elsie Patrick and David  Gunanoot also teach you about that territory?  MACKENZIE: Objection.  THE WITNESS:  Yes.  MR. GRANT:  Q   You were asked about Dam Xsimootixswit.  Do you know  who owns the territory on the other side of Dam  Xsimootixswit? That is the other side from Nii  Kyap, Dam Xsimootixswit?  William Charlie.  In one of the exhibits in the Exhibit 8 to 24 series  for identification which has been marked, it is a  topographic data sheet dated December 18, 19 82 with  reference to the site, the head of Driftwood River  at the top.  I'm not referring to the number as  Madam Reporter hasn't had a chance yet to mark all  the numbers on these.  There is a reference to  creeks that flow into Bear Lake under comments.  Do  you know the names of the creeks that flow into Bear  Lake?  I'm not asking you to give us those names, I  am just asking if you know the names of those creeks  that flow into Bear Lake?  Yes.  Just for the record, that was Exhibit 21 for ID that  I was referring to.  The file from which Exhibit 1  was taken federal document number 11161 includes a  letter dated April 19, 1974 from Doug Turner to Mrs.  Mary Jack and there is a reference to Thomas Jack.  I would just like to ask you if you have seen that  letter before.  You can take a moment to read it.  No.  Okay.  Is your brother William Jack?  Yes.  Again in the file there is a letter dated July 2,  1975 from — with a signature on it.  Do you  recognize the signature on the bottom of that second  page of the letter?  This is Dora's writing, William's wife.  She is  deceased.  Okay.  I would like that letter marked as the next  exhibit, please.  A  Q  A  Q  A  Q  MR. GRANT: 22  T.   Jack   (for  Plaintiffs)  Re-exam by Mr.   Grant  1 MR.   MACKENZIE:     I have a copy here.  2  3 (EXHIBIT 27: Letter dated July 2, 1975)  4  5 MR. GRANT:  6 Q   Now, immediately following that letter of July 2,  7 1975 in this file, the federal government file, is a  8 letter addressed to Mr. William Jack dated July 21,  9 197 5 from a Mr. Mclntyre of District Real Estate  10 Office who is the officer for the lakes district.  11 This letter appears to respond to that letter and to  12 the claim made on — in the William Jack letter to  13 compensation for destruction of traplines and  14 reserve lands taken by the railroad.  Do you recall  15 your brother William asking for compensation for  16 destruction of part of your territory by the B.C.  17 Railway in or around July 1975?  18 MR. MACKENZIE:  Objection.  19 THE WITNESS:  No.  2 0 MR. GRANT:  Do you recall a response from the Indian agent to  21 your brother regarding that?  22 MR. MACKENZIE:  Objection.  23 THE WITNESS:  No.  24 MR. GRANT:  I would request to mark the July 21, 1975 letter as  25 an exhibit for identification.  26  27 (EXHIBIT 2 8 FOR IDENTIFICATION:  Letter dated  28 July 21, 1975)  29  3 0 MR. GRANT:  Thank you very much, Mr. Jack, those are all my  31 questions.  Thank you for your patience.  32 (PROCEEDINGS CONCLUDED)  33  34 I hereby certify the foregoing to  35 be a true and accurate transcript  36 of the proceedings herein to the  37 best of my skill and ability.  38  39  FRANKO, ^-OFFICIAL ]  40 LISA FRANKO, ^-OFFICIAL REPORTER  41 UNITED REPORTING SERVICE LTD.  42  43  44  45  46  47


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