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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1988-05-06] British Columbia. Supreme Court May 6, 1988

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 5891  S. Marsden (for Plaintiffs)  In chief 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  THE  MR.  VANCOUVER, B.C.  May 6, 198 8  THE REGISTRAR:  Order in court.  In the Supreme Court of British  Columbia, Friday, May 6th, 1988.  Calling Delgamuukw  versus Her Majesty the Queen at bar, my Lord.  I  caution both the witness and interpreter you're still  under oath.  THE COURT:  Mr. Grant.  MR. GRANT:  Thank you, my Lord.  THE COURT:  Mr. Grant, you said yesterday, and I always believe  everything counsel says, that we're on day 91 or 92.  Is that an accurate count?  MR. GRANT:  Actually we're on day 93 today, and I'm basing that  on a very simple deduction of volume numbers of  transcripts, so it may be that depending on -- I think  that included some of the chambers days in July and --  THE COURT:  I think it does too.  MR. GRANT:  Yes, so —  THE COURT:  I have been keeping a running tab, but I could well  have skipped a couple of days.  I'm only day 87.  I hope you were present on whatever those days were,  my Lord.  COURT:  Yes.  I may have been.  GRANT:  Yes.  I think that's right.  I think actually the  transcripts were numbered in the summer months once we  started the trial.  Right, um-hum.  MR. GRANT  THE  MR.  COURT  GRANT  Q  A  Q  A  Q  Just one moment, my Lord, I don't want to repeat  myself, I just want to -- at the end of yesterday,  Chief Xamlaxyeltxw, I asked you about Luuxoon, and you  explained that Luuxoon is the closest to your house  and he was one of the chiefs in your house, and he  left and made his own house.  And then you explained  that Xamlaxyeltxw and Luuxoon have the same crest even  today.  Is that transfer out of the house by Luuxoon  and him taking the crest, is that consistent with  Gitksan law?  Yes.  This is one of our laws, that there was  agreement made between the two chiefs, and whenever  the crests are used whenever there is a feast, then  there is an understanding between these two chiefs.  And is that what happened in that case?  Yes.  And do you know if that has happened in the case of  other Gitksan chiefs or other Gitksan houses? 5892  S. Marsden (for Plaintiffs)  In chief by Mr. Grant  1  A  2  MR.  GRANT  3  4  5  6  7  8  9  THE  COURT  10  MR.  GRANT  11  Q  12  13  A  14  Q  15  16  17  18  19  20  A  21  Q  22  23  24  A  25  26  Q  27  28  A  29  Q  30  31  THE  WITNE  32  A  33  Q  34  35  A  36  Q  37  38  A  39  Q  40  41  A  42  MR.  GRANT  43  44  THE  COURT  45  46  47  MR.  GRANT  Yes.  :  And -- okay.  My Lord, there's something that struck  me.  I meant to ask you at the beginning because I  read a transcript, and that was Mr. Goldie asked me  about scheduling, I will speak to it at 2:00, but one  of the factors in my mind in terms of scheduling, you  indicated that May 20th, that is the Friday before the  long weekend, you were not sitting; is that correct?  :  That is true, yes.  I just wanted to be sure about that.  Now, Mr.  Marsden, does your house have an adaawk?  Yes.  It is there.  And does this adaawk connect with part of the  territory which is the subject matter of this action,  that is -- let me rephrase the question.  Does your  adaawk refer to any part of the territory outside what  we -- what is now -- outside your own territory, that  is Xamlaxyeltxw's territory?  It is our adaawk.  Okay.  My question was probably -- can you -- I'll  come back to that, but can you tell the court when you  would tell your adaawk under the Gitksan law?  When the pole is raised, immediately after the pole is  raised then they held their adaawk.  And have you raised the pole yourself as chief  Xamlaxyeltxw?  Yes.  Do you recall approximately when that was, how many  years ago?  3S:  1981.  1981.  And does this -- under Gitksan law is this adaawk the  property of your house?  Yes.  And this is the same for all the Gitksan chiefs with  respect to their own adaawk?  Yes.  Can you tell the court here your adaawk in a summary  form?  I'll tell about the origin where Sindihl is from.  :  Sindihl, that's the name of the other chief -- the  other chief in your house?  :  Well, Mr. Grant, I have to rely on you, is it really  going to be useful for me to know the adaawk of this  witness' house?  :  Well — 5893  S. Marsden (for Plaintiffs)  In chief 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  THE COURT  MR. GRANT  THE  MR.  COURT  GRANT  THE COURT  Considering the fact that he's not a plaintiff, and  the territory in his territory is not in the claimed  area, and I'm sure it's a very interesting story but  is it helpful, or more particularly, is it relevant?  I think it demonstrates connections between this  witness and plaintiffs and demonstrates another aspect  of the ancient history of the depth of time of the  Gitksan people in the claims territory, and I'm  focusing on "in the claims territory", that's why I've  asked him about that, and I also think that -- well,  I'm also relying in part on the ruling that you made.  Well, I don't —  On the 4th where you talked about the oral histories  may be relevant even if they're oral histories of  Kitwancool, but I'm not going to focus at all on the  Kitwancool aspect of the adaawk.  Well, you don't need to trouble yourself with  authority.  I raise it, your friend isn't objecting,  but I really want to hear everything I can usefully  hear, but I really don't want to hear any more than  that.  I don't -- and the Plaintiffs don't want to spend  your time hearing things that aren't useful, I agree.  COURT:  All right, go ahead.  GOLDIE:  I have another question, my Lord.  My understanding  is that the adaawks of the Kitwancool have been  recorded and have been published, and wouldn't it be  simpler if that was done, to file that?  It's in a  memoir published with the authority of Mr. Marsden and  others, edited by Mr. Wilson Duff.  It's referred to  in Exhibit 439, page 1 and I quote:  "These Rulers, Owners, Protectors and Defenders  were seated on their own seats during the  pre-Historic times, since the Great World Deluge.  (The Deluge is recorded in the histories relating  to the poles of chief --"  And I can't make it out, but it's one of the --  "Guno, page 18, Histories, Territories, and Laws  of the Kitwancool."  And I believe my understanding is that all of the  adaawk with respect to territories are set out in that  document, and if the witness is prepared to confirm  that it would -- we would have it recorded.  MR. GRANT  THE  MR. 5894  S. Marsden (for Plaintiffs)  In chief 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. GRANT  THE COURT  MR.  GRANT:  Q  A  :  Well, the publication, histories, and laws of the  the Kitwancool relates to territories of Kitwancool.  That's not the aspect of this adaawk that I'm  referring to.  I'm referring to, and I believe  actually that that document already exhibited, if not  I think -- I thought it was exhibited earlier.  Mr.  Mackenzie I think referred to it, but in any event, I  have no difficulty that that's probably, given the  context of your ruling, that that document will be  exhibited, but that's different than what I'm asking  the witness about his adaawk with respect to the  origin of his house, and that's I think is relevant  and that's the focus I wish the court to hear.  It's  not the focus of his territory that I'm asking the  court to hear, which is what the focus of histories  and territories and laws of the Kitwancool is.  :  Well, I'm not going to stop you, Mr. Grant.  If it's  in written form and it could be confirmed by the  witness it will save a lot of time, and if that's not  what you want from the witness I am in your hands.  I would have to struggle around with the written form,  it's quicker to do it in this way in the  circumstances.  Chief Xamlaxyeltxw, could you just  proceed to tell where Sindihl originated and that  history?  There is this village, this village is called -- is  known as Gitangasx and it was situated at the head  waters of the Skeena.  It is clear to our people that  Gitangasx was the first village of the Gitksan people.  This was when Sindihl was still living in Gitangasx  they found this stone figure in the water, it is not  clear to us whether it is in the river or in the lake.  They seen this stone figure in the water and they had  a hard time dragging the stone figures out of the  water, and when they did finally drag it out it looked  like a totem pole but was made out of stone.  Sindihl  wanted to erect this stone figure, so what he did is  he invited the surrounding villages, the villages that  are around his own village.  While Sindihl was out  inviting the surrounding villages this stone figure  disappeared.  After Sindihl came back he found out  that the rock had disappeared, so what he did is he  carved -- he remembered the figures that was on the  rock and he carved them onto the wood before the  guests arrived.  After this pole was carved it was  erected and it was known as ha'nii laahl gaak. 5895  S. Marsden (for Plaintiffs)  In chief by Mr. Grant  1 MR. GRANT:  Can you give a spelling for that, please.  2 THE TRANSLATOR:  Ha'nii laahl gaak, H-a-'-n-i-i space 1-a-a-h-l  3 space g, underlined, a-a-k underlined.  4 THE COURT:  All right.  And what does that word mean?  5 MR. GRANT:  6 Q   Yes.  What does that word mean?  7 A   Ha'nii laahl gaak means where the mother crow sits  8 with her young in the nest.  9 Q   Go ahead?  10 A   This is the reason why today Sindihl's crest is in his  11 house.  After they moved --  12 Q   When Sindihl —  13 A   Sindihl moved they travelled to Kitwancool.  After  14 this they got to Kitwancool, then they erect the same  15 pole that they had left behind in Gitangasx.  It is  16 clear to us that Sindihl is from Gitangasx, it is  17 clear to us that we were the first people here at  18 Gitangasx.  When there was too many people at  19 Gitangasx they -- the other people would start moving,  20 and this is what happened.  We moved to Kitwancool.  21 When the village was made at Kitwancool there was a  22 lot of people later on there, and it is clear to us  23 that there was a lot of people, and that this was  24 before the flood.  When the flood started they  25 survived by using rafts, and the family -- the  26 families would all gather on one raft.  After the  27 flood subsided they drifted to this place known today  28 as Alaska.  After they landed they knew where they  29 were.  They knew the place where they were and they  30 remembered their own territory, their own land, and  31 they did not want to lose this land, so they made a  32 plan that they will return, and this is what they did,  33 they returned to Kitwancool and they resumed living on  34 their territories, then even to this day.  This is why  35 the Gitksan people have their laws of the land, they  36 believe that this is their very own land.  37 Q   I would like to ask you about this pole that Sindihl  38 carved.  I take it from what you've described that  39 these events occurred long before the arrival of the  40 white man or before there was any contact with the  41 white man's tools?  42 A   Yes.  It's in the ancient times.  43 MR. GRANT:  Do you know how Sindihl and these people in the  44 ancient times carved the pole?  45 MR. GOLDIE:  Is this part of the adaawk?  4 6 MR. GRANT:  47 Q   Okay.  That's fair enough.  I can ask a preliminary 5896  S. Marsden (for Plaintiffs)  In chief by Mr. Grant  1 question.  Does the adaawk tell you how they carved  2 the pole, and if it does can you describe how?  3 A   In the ancient times they have their own tools to use  4 on whatever they are doing, carving poles, cooking.  5 Q   When you were taught the adaawk were you taught what  6 these tools were made of?  7 A  What they would do is they would sharpen a rock until  8 it was sharp like a knife and it does work like a  9 knife.  And this -- and these tools are also used when  10 they are preserving their fish and their meat.  The  11 tool that they used to carve the totem pole is known  12 as the dax winsxw.  13 MR. GRANT:  Do you have a spelling or a number for that, please?  14 THE TRANSLATOR:  Dax winswx, d-a-x, underlined, space  15 w-i-n-s-x-w.  16 THE COURT:  Thank you.  17 MR. GRANT:  18 Q   I just wanted to ask you, who taught you the adaawk  19 that you've described?  20 A   In the beginning when there were the Gitksan people  21 here they used to live in big houses, which is known  22 as long houses.  There is no rooms in a long house,  23 it's just one big room.  The chief would sleep on the  24 back centre of the house and then they would have  25 their -- his brothers and his nephews on the sides.  26 Early before morning the chief would rise and he would  27 tell his brothers and nephews and the house members of  2 8 the adaawk.  He would go over the adaawk and then he  29 would go over his plans of what they're going to do,  30 if they're going to have a feast, planning a feast.  31 When the -- when the older chief passes on the new  32 chief comes on and he does the same thing, and this  33 keeps going on and on and they keep changing chiefs  34 and they still do the same thing, telling of the  35 adaawk and what has happened during the lifetime.  And  36 this is the reason why today we know the adaawk, it's  37 been passed on, because this is what they did from the  38 beginning of time.  39 Q   Can you explain who specifically, the names of those  40 people who told you the adaawk in this way, which  41 persons?  42 A  My grandfathers told me.  43 Q   Did they also teach you about how the poles were  44 carved before the white man arrived?  45 A   Yes.  They told me.  46 Q   Now, you referred yesterday to the names of the  47 Kitwancool chiefs referred to in paragraph 51, I 5897  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  S. Marsden (for Plaintiffs)  In chief by Mr. Grant  believe, in the Statement of Claim, and you referred  to Txaax wok as being in the same house as Wilitsxw.  A   I seen Wilitsxw's House and I've never seen Txaax  wok's House, but they are in the same house, they are  in one house.  THE COURT:  I'm sorry, Mr. Grant, I didn't get which houses you  were asking about.  MR. GRANT:  Okay.  I was referring to Wilitsxw, which is John  Robinson.  TRANSLATOR:  Number 80.  GRANT:  Number 80.  And Txaax wok.  TRANSLATOR:  594.  THE  MR.  THE  MR.  THE  MR.  THE  MR.  THE  MR.  GRANT  COURT  GRANT  COURT  GRANT  COURT  GRANT  Q  A  A  Q  A  A  Which is number 594 --  All right.  On the word list, the Gitksan word list.  All right.  And Txaax wok is James Morrison.  Yes.  Yesterday you explained the difference between the  relationship between you and Sindihl in your house and  the relationship between you, Hlamii and  Xamlaxyeltxw -- Sto'o wilp.  Can you explain what the  relationship is between Wilitsxw and Txaax wok in  Wilitsxw's House?  I could not say very much about this because it's not  proper for me to say anything, but one thing I know is  that Wilitsxw has his pole and Txaax wok has his pole.  Do you know if Txaax wok is a Sto'o wilp of Wilitsxw,  or is it more like you and Sindihl and -- I mean you  and Sindihl?  I can't say anything about this.  And this is because that is a different house?  Yes.  That's one of the reasons, and I can't say  anything because it's not clear to me.  Okay.  Now, yesterday you explained that the  Kitwancool are Gitksan, and you're Gitksan, and you  explained or referred to the fact that the Kitwancool  are not in this court action.  Did the Kitwancool  chiefs make a decision not to be plaintiffs or persons  making a claim in this court case?  This has stood out for a long time, that we are  independent, and the reason why I am here is that we  did have a meeting and they allowed me to come and  give support.  And when you say "we had a meeting", are you referring  to the Kitwancool chiefs? 589?  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  S. Marsden (for Plaintiffs)  In chief by Mr. Grant  A   Yes.  It's the law.  THE INTERPRETER:  Can I clarify with him?  THE COURT:  Oh, yes.  MR. GRANT:  Q  A  MR. GRANT  MR.  MR.  THE  MR.  GRANT  COURT  GRANT  THE  MR.  Yes.  I think that's fair.  Because they are acting independently, they did not  want to mix their laws with the Gitksan people.  Is the decision of the Kitwancool chiefs not to be  in this court case an example of their exercise of  authority under Gitksan law?  GOLDIE:  Well, I don't follow that question, my Lord.  The  witness just finished saying we did not want to mix  their laws with the Gitksan people.  That seemed to me  to be perfectly clear, and my friend is embarking upon  a cross-examination if he is -- if he's trying to get  him to qualify that answer.  No.  It wasn't intending to qualify that answer, no.  What is your question again, Mr. Grant?  I asked whether the decision of the Kitwancool  chiefs to not be in the court case was an example of  the exercise of their authority under Gitksan law.  Is that not a self-evident fact, is the right not to  be in a lawsuit?  Surely that's a decision anyone's  entitled to make, whether he's Gitksan or anything  else.  Yes, that's true, but what -- of course as I  indicated yesterday, the focus of the evidence on this  witness was the law.  I was trying to have him  elaborate on the authority, and I take my friend's  point that he -- to the extent that he referred to it  it was leading and I was trying to direct him to an  area, and I will rephrase the question.  COURT:  Thank you.  GRANT:  Q  THE COURT  MR. GRANT  Are the laws of the Kitwancool the same as or  different than the laws of the other Gitksan chiefs?  It's the same.  Now, you referred yesterday to going out on your --  that is Xamlaxyeltxw's territory.  Can you explain to  the court where that territory is with reference to  some landmarks that you can name?  The time when Sindihl left his land and came towards  Meziadin Lake, when they got to this place they called  Anx ts'imilixhl naageets'.  Can you give a number or a spelling for that,  please, Miss Stevens.  TRANSLATOR:  Anx ts'imilixhl naageets', A-n —  A  Q  A  MR. GRANT  THE 599  S. Marsden (for Plaintiffs)  In chief by Mr. Grant  1 THE COURT:  You're being drowned out, I'm sorry.  2 THE TRANSLATOR:  A-n-x underlined, space, t-s-'-i-m-i-l-i-x-h-1  3 space n-a-a-g underlined e-e-t-s-'.  4 THE COURT:  Thank you.  5 MR. GOLDIE:  T-s —  6 THE TRANSLATOR:  Apostrophe.  7 MR. GOLDIE:  Apostrophe, thank you.  8 THE COURT:  And what is that — he mentioned Meziadin Lake a  9 moment ago.  It's not the same thing, is it, or is it?  10 MR. GRANT  11 THE COURT  12 MR. GRANT  13 THE COURT  No, it's not, as I recall, as I understand it.  It's a location?  It is a location.  Can anyone tell me where it is?  I'm sure it's on  14 Mr. Macaulay's map.  15 MR. MACAULAY:  Oh, yes, my Lord.  16 MR. GRANT:  Well, the witness was describing coming over from  17 Gitangasx and down, and you see the Meziadin and then  18 he referred to going to the Meziadin.  If the witness  19 goes on I think this will become clear, my Lord.  I am  20 trying to place it for you.  21 THE COURT:  Yes, thank you.  22 MR. GRANT:  And I can tell you — but maybe I should just let  23 the witness explain it so there's no suggestion that  24 I'm --  25 MR. GOLDIE:  I wouldn't object in the slightest if he's led down  26 the river to where he's supposed to be going.  2 7 MR. GRANT:  28 Q   As long as it doesn't affect the weight.  Just one  29 moment.  Can you tell us where that place is in --  30 where that place is in relation to Meziadin Lake and  31 Kitwanga Lake?  32 A   It's not very far from Meziadin, it's about ten miles.  33 Q   Would that be ten miles above it or below it?  34 A   Past Meziadin.  35 Q   And is this where your territory starts, that is the  36 territory of Xamlaxyeltxw?  37 A   Yes.  38 Q   Proceed, Chief Xamlaxyeltxw, you were describing where  39 Sindihl went from there?  40 A   They got to Anx ts'imilixhl naageets' and then lived  41 there for a time inspecting the land.  After the  42 inspection was done then they decided to claim this  43 area, and after they've lived at Anx ts'imilixhl  44 naageets' they started travelling again and they got  45 to a place known as Aks naagelgaa.  46 MR. GRANT:  That name is on — there's a sketch map that — or a  47 map that was excerpted from the Histories, Territories 5900  S. Marsden (for Plaintiffs)  In chief by Mr. Grant  1 and Laws of the Kitwancool I believe in the evidence  2 of -- no.  It was in the evidence of Mr. Morrison --  3 oh, it's at tab 1 of this white book, my Lord,  4 fortunately we recommended that you keep here.  And  5 you can see below the name Wolverine River there you  6 can see that name Aks Naagelgaa, although it's not  7 spelled as Miss Stevens would spell it.  8 THE TRANSLATOR:  It's number 815 on the word list.  9 THE COURT:  Thank you.  10 MR. GRANT:  I'm sorry, Mr. Marsden, I just wanted the court to  11 follow you.  So just proceed now.  12 MR. GOLDIE:  Isn't the earlier one Wolverine River, the one that  13 Miss Stephens spelled out and which was about ten  14 miles from Meziadin?  Isn't that Wolverine River?  15 MR. GRANT:  I will check that.  16 MR. GOLDIE:  I say that, my Lord, because that appears from page  17 17 of Exhibit 439, where it's stated:  18  19 "Over many generations they moved down along the  20 Nass River camping in various locations,  21 including"--  22  23 MR. GRANT:  Yes.  I see what my friend is pointing to.  Well,  24 I'll let you proceed and then I'll just confirm that  25 with the witness.  26 MR. GOLDIE:  Thank you.  2 7 MR. GRANT:  28 Q   Go ahead with your description.  You were at Aks  29 Naagelgaa?  30 A  When they got to Aks Naagelgaa they lived there for a  31 time again and they inspected the land.  After the  32 inspection was done they claimed this land.  After  33 they moved from Aks Naagelgaa they travelled and they  34 got to a place known as Win sgahlguu'l.  35 MR. GRANT:  Do you have a spelling for that one?  36 THE TRANSLATOR:  Win sgahlg-u-u'1, W-i-n space, s-g underlined  37 a-h-1-g-u-u-'-1.  38 THE COURT:  U-u apostrophe 1?  39 THE TRANSLATOR:  Yes.  4 0 THE COURT:  Thank you.  41 MR. GRANT:  42 Q   Go ahead?  43 A  And they did the same with this territory, they  44 claimed it and they travelled on again, and they got  45 to a place called Ski geenit.  46 MR. GRANT:  Can you give a spelling for that, Miss Stevens?  47 THE TRANSLATOR:  S-k-i space g-e-e-n-i-t. 5901  S. Marsden (for Plaintiffs)  In chief by Mr. Grant  1 A  And they lived at Ski geenit for a time and inspected  2 the land and claimed it, and they claimed it as part  3 of the territory that they already claimed.  They  4 moved from Ski geenit and they went towards the  5 Meziadin River.  6 MR. GRANT:  7 Q   I'm sorry.  Was that the Nass River?  8 A   Or the Nass River.  The Nass River and -- this was  9 where the boundary of the Nishgas were, the place  10 called Git xsi ts'uuts'xwit.  11 Q   Do you have a number?  That's number 768, my Lord.  12 A  And this was where Sin Gewin lived.  13 THE COURT:  I'm sorry.  Who lived there?  14 MR. GRANT:  Sin Gewin.  Can you give a spelling, please.  15 THE TRANSLATOR:  Sin Gewin, S-i-n space g underlined e-w-i-n.  16 MR. GRANT:  17 Q   Who was Sin gewin?  18 A   Today it's Dennis Gogag holds this name.  19 Q   And I believe -- is this is a name in your house?  20 A   Yes.  21 MR. GRANT:  Okay.  22 THE COURT:  Yes.  We had him yesterday.  2 3 MR. GRANT:  24 Q   Yes.  25 A  When they left Sin gewin they travelled to the west  26 side of the Cranberry River, and this is why they  27 owned this territory today, because they took that --  28 they went towards Cranberry River and until it gets to  2 9 the Kitwancool Lake.  They came upon where we had  30 lived, and this was where Wixa showed where Sindihl's  31 house was to be built.  32 THE COURT:  I'm sorry, whose house?  33 THE TRANSLATOR:  Sindihl.  Not Sin gewin?  No.  Thank you.  37 A   This is how the village of Kitwancool started.  It  38 wasn't known as Kitwancool back then, it was known as  39 Gitan'yaaw.  I will tell you why it is called -- how  40 it came to be Kitwancool.  It's just that recently  41 it's known as Kitwancool.  It was a very long village.  42 The village was about eight miles when it was known as  43 Gitan'yaaw.  What happened is the Ts'its'aawit  44 declared war on the Kitwancool people and they killed  45 most of the people.  After the war there was just a  46 few people left alive, and what they did is they  47 gathered at one place and made a village at one place,  34 THE COURT  35 MR. GRANT  3 6    THE COURT 5902  S. Marsden (for Plaintiffs)  In chief by Mr. Grant  1 and there was just a few left, and this is why it's  2 known as Gitwinhlguu'1.  "Guu'l" means small in our  3 language.  4 THE COURT:  I haven't got, Mr. Grant, the name of those who  5 declared war on them, on the Kitwancool.  6 MR. GRANT:  The Tsi'its'aawit.  7 THE TRANSLATOR:  764.  8 THE COURT:  Thank you.  9 MR. GRANT:  You did get the name of the village, Gitwinhlguu'1  10 was 597.  11 THE COURT:  Yes, thank you.  12 A   This is -- I'll tell you about the -- how I tell you  13 about the name of Kitwancool.  14 MR. GRANT:  15 Q   Thank you.  Just before the break I just wanted to ask  16 you one question without going into the detail of it,  17 but you've referred to the wars with the Ts'its'aawit.  18 Did the Kitwancool call other Gitksan people, or were  19 chiefs of other Gitksan villages involved in helping  20 the Kitwancool fight the Ts'its'aawit?  21 A  What happened is there was a man from Gitsegukla that  22 was married to a Kitwancool woman, and what happened  23 was when the women went towards the Kitwancool Lake to  24 make moose hide to preserve the moose hide for their  25 clothing, while the women were doing this the  26 Ts'its'aawit killed them off, and this is why the  27 Gitsegukla was involved.  This woman heard the  28 commotion outside of her -- the camp and she knew what  29 the Ts'its'aawit were doing so she ran and she ran as  30 fast as she could, but one of the Ts'its'aawit  31 warriors seen her running away, so he ran after her,  32 and just when she was getting to the other side of the  33 lake this is when the Ts'its'aawit shot her with an  34 arrow, and she died instantly.  35 THE COURT:  I think on that unhappy moment we'll take the  36 morning adjournment.  37 MR. GRANT:  We'll finish after the break.  38 THE REGISTRAR:  Order in court.  39  40  41  42  43  44  45  46  47 5903  S. Marsden (for Plaintiffs)  In chief by Mr. Grant  1 (PROCEEDINGS ADJOURNED AT 11:15)  2  3 I hereby certify the foregoing to be  4 a true and accurate transcript of the  5 proceedings herein transcribed to the  6 best of my skill and ability  7  8  9  10 Graham D. Parker  11 Official Reporter  12 United Reporting Service Ltd.  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 5904  S. Marsden (for Plaintiffs)  In chief by Mr. Grant  1  2 (PROCEEDINGS RECOMMENCED AT 11:30 A.M.)  3  4  5 THE REGISTRAR:  Order in court.  Ready to proceed, My Lord.  6 THE COURT:  Mr. Grant.  7 MR. GRANT:  My Lord, I am not going to go in further detail in  8 the evidence of this Ts'its'aawit, because this  9 evidence has been led through one of the commission  10 witnesses, and you will have an opportunity to see  11 this evidence otherwise.  12 I'm sorry, Madam Registrar, do you have Exhibit 383,  13 and it's at Tab 1.  I just want you to put it to the  14 witness for a moment.  I think a copy --  15 MR. MACAULAY: Your Lordship will be glad to know that the river  16 on the left-hand side, Kin skuch, appears quite  17 clearly on the excellent map --  18 MR. GRANT:  On the aide-memoire.  19 THE COURT:  Well, you may have said that, Mr. Macaulay, I just  20 assumed that you said that.  21 MR. GRANT:  I wonder if we have the overlay that has that map.  22 THE COURT:  What is it called on your map, Mr. Macaulay?  2 3 MR. MACAULAY: Same.  2 4 MR. GRANT:  25 Q   I have in front of you Exhibit 383, and this  26 document -- or a copy of Exhibit 383.  It's at Tab 1  27 of the white book in Vernon Smith's exhibits.  This  28 map is from the book, the histories, territories and  29 laws of the Kitwancool, which, as I recall, was  30 published around 19 -- in or around 1958.  Have you  31 seen this map or a copy of this map before?  32 A   I seen this -- I seen this when they first finish with  33 the book.  34 Q   Now, I only have one question to ask you, Chief  35 Xamlaxyeltxw, and that is that there is a dotted line  36 around this map which is -- consists of straight  37 lines, and are those straight lines the exact  38 boundaries of the Kitwancool territory?  39 A   The rivers show that the map is -- it's not really  40 correct, because of the way the rivers are shown.  41 This -- it's not as straight as it is on here, it's  42 just the approximate.  43 Q   The approximate?  44 A   Boundaries.  There is supposed to be a river here,  45 which is shown as Xsu maaxwsxwit, and it's not even on  46 here.  47 Q   Indicating just for the record, My Lord, above in that 5905  S. Marsden (for Plaintiffs)  In chief by Mr. Grant  1 blank space below the name Meziadin Lake on Exhibit  2 383, and above Kin skuch River -- above where Kin  3 skuch, K-i-n, s-k-u-c-h, River is located.  4 What do the actual boundaries of the Kitwancool  5 territories -- what do they actually follow?  6 MR. GOLDIE:  Well, perhaps my -- I don't understand the  7 relevance of asking what the boundaries are of the  8 Kitwancool territory.  9 THE COURT:  Well, I don't either, Mr. Grant.  10 MR. GRANT:  Fair enough.  I'm only — okay.  Well, this matter,  11 My Lord -- I think I can rephrase it to bring it  12 relevant.  13 Q   Is it correct that the Kitwancool territory borders on  14 the western side of the territory of other Gitksan  15 chiefs who are the plaintiffs in this action?  16 A  Are you talking about a different village or are you  17 talking about Kitwancool?  18 Q   Okay.  I am asking if the boundaries of the chiefs of  19 Kitwancool, are they immediately adjacent or next to  20 the boundaries of the Kispiox chiefs, Kitwanga chiefs?  21 A   Yes, it is so that they -- the boundaries of Kispiox  22 and Kitwancool come together, but they know where the  23 boundaries are.  When they travel on their territory,  24 they know where the boundaries are.  25 Q   When you say they know, who are you referring to, the  26 Kispiox chiefs or the Kitwancool chiefs or both?  27 A   They both know when Kispiox travels on their  28 territory, they know how far to go, and so does the  29 Kitwancool people.  30 MR. MACAULAY:  My Lord, if the purpose of this cross-examination  31 is to establish that this Exhibit 383 is a schematic,  32 that is the outer boundaries, I am prepared to admit  33 on behalf of the Attorney General of Canada that is  34 clearly a schematic to show all the dips and curves.  35 THE COURT:  I don't know if that's your purpose or not, Mr.  36 Grant.  It's pretty obvious that Mr. Macaulay has  37 described it accurately.  38 MR. GRANT:  I think he has.  I, of course, would feel much  39 easier if the other defendant felt the same.  I am not  40 certain what the provincial position is, but certainly  41 they have raised much about this being a straight line  42 and this being the exact boundaries in the evidence,  43 of which Mr. Goldie wasn't present.  44 MR. GOLDIE:  I read the transcript.  I know what's gone on.  45 THE COURT:  I don't think, Mr. Grant, that anyone would suggest  46 that was a legal boundary of any kind or intended to  47 be anything more. 5906  S. Marsden (for Plaintiffs)  In chief 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.  THE COURT  MR.  MR.  THE  MR.  GOLDIE:  If my friend can refer me to the evidence that says  that suggests that, I would be glad to consider it,  but that's not the case as far as I am aware.  I do remember a case where it was contended by an  agent of the Attorney General of British Columbia that  British Columbia was flat, for purposes of calculating  quantities of pieces of land, but nobody seemed to  accept that evidence then, and I don't think I should  accept that evidence now.  Well, we should consider introducing that evidence  in that transcript, My Lord, because it may be part of  the provincial theory in the case here.  GOLDIE:  Perhaps we'll let the present agent speak for what  the provincial theory is in this case.  It will be on the flatness of the province, I guess.  We had a flat earth government at the time.  MR. GRANT  GRANT  COURT  GRANT  Q  THE  MR.  THE  MR.  MR.  MR.  MR.  One question -- you referred to your territory at --  starting at Xamlaxyeltxw's territory and Anx  ts'imilixhl nageets.  Is that the same -- it that  known to white people as Wolverine River?  A   Yes, it is the -- it is Wolverine River, and in our  language Wolverine is Naageets'.  Q   So in fact it's Wolverine River to the Gitksan as  well.  You referred to a place called Git xsi  ts'uuls'xwit on your territory.  Is this a border of  your territory, that is of the Kitwancool territory  with another Indian nation?  A   Yes, this is the boundary between Kitwancool and the  boundary of the Nishga.  COURT:  I'm sorry, between Kitwancool and?  GRANT:  And the Nisga.  TRANSLATOR:  And the Nishga.  GRANT:  Q   And have you -- were you taught about a marker  delineating this boundary?  And I am raising this, My Lord, because it will tie  into some later evidence he gives regarding the laws.  A Yes, they raised a pole with a stone figure on top of  this pole, and the stone figure is known as a  Hlgimadaa sook, and this is to show that this was the  Nishga boundary.  GRANT:  Who —  GOLDIE:  My Lord, assuming that this is important, can we  find out on the map where the location of what we are  talking about?  GRANT:  I have highlighted the names of the spellings.  As I 5907  S. Marsden (for Plaintiffs)  In chief by Mr. Grant  1 indicated on Exhibit 383, are, of course, different,  2 but that name just above Git xsi ts'uutsxwit, which is  3 on the lower left corner, My Lord, you see a name,  4 G-i-t - k-s-e - d-z-o-z-q-u.  5 THE COURT:  Yes.  6 MR. GRANT:  I checked with Madam — with Miss Stevens at the  7 break, and she has indicated that that is, although a  8 different spelling, that is the same word.  That's  9 correct, Mrs. Stevens?  10 THE TRANSLATOR:  Yes.  11 THE COURT:  The same word as 768?  12 THE TRANSLATOR:  No.  13 MR. GRANT:  No.  It's the same word as?  14 THE TRANSLATOR: Git xsi ts'uuts'xwit.  15 MR. GRANT:  Do you have a number for that word?  16 THE TRANSLATOR: I don't think so.  17 MR. GOLDIE:  No, it was just spelled out.  18 THE TRANSLATOR:  Yes.  19 MR. GOLDIE:  Could Miss Stevens give us the spelling again when  20 it was first mentioned?  21 THE TRANSLATOR:  G-i-t, x-s-i, t-s'u-u-t-s'x-w-i-t.  22 MR. GOLDIE:  All right.  Thank you.  23 A  At this place where the Git xsi ts'uuts'xwit, this  24 chief raised this from Nishga, raised this pole, and  25 this was where Sin Gewin lived also, and they lived --  26 they both lived there where the boundary was.  27 Q   Okay.  And did you -- I'm not certain.  Did you give  28 the name of that marker that he put there?  Was there  29 a name for that?  30 A   Hlgimadaa sook.  31 Q   And what does that name mean?  32 A   The eggs of the robin.  33 THE COURT: That's 768, is it?  34 MR. GRANT:  That is 768.  35 THE TRANSLATOR: Yes.  36 THE COURT:  Is it possible to find out when this marker was  37 raised?  3 8 MR. GRANT:  Yes.  39 Q   Can you describe when this rock was raised by this  40 Nishga chief, possibly in relation to before -- was  41 this before or after the white people came into your  42 territory?  43 A  Way before the white man came.  44 Q   Was it -- and from what you have said, this was after  45 Sin dihl in your house moved over to this territory,  46 because you said Sin Gewin was living there; is that  47 right? 590?  S. Marsden (for Plaintiffs)  In chief by Mr. Grant  1  A  2  Q  3  4  A  5  Q  6  7  8  9  10  A  11  Q  12  13  A  14  MR.  GOLDI  15  16  17  MR.  GRANT  18  19  20  21  THE  COURT  22  MR.  GRANT  23  MR.  GRANT  24  Q  25  26  A  27  Q  28  29  A  30  Q  31  32  33  34  A  35  Q  36  37  A  38  Q  39  40  41  A  42  43  44  45  46  47  Yes.  Was this before or after the flood that you have  referred to?  Before.  I would like to ask you some laws, and I'll refer to  your own territory, but I am asking you these to --  for reference to the Gitksan territories, the laws  relating to them.  Are the members of your house  entitled to go on your territory?  Yes.  Under Gitksan law must they come to you to ask  permission before they go there to use the resources?  Yes.  :  I'm sorry, I want to be sure about that answer.  Is  his answer that members of a house must come to him to  go on the territory?  No, I asked if they are entitled to go on the  territory.  I asked, must they come to you to ask for  permission to go on the territory and use the  resources, I believe.  He said yes.  And he said yes.  Now, is this the -- is this law the same for all of  the Gitksan?  Yes, it's the same.  Now, in your lifetime have Nishga people used the  resources of your territory to your knowledge?  Ever since I was small I have never seen this.  Did your uncle, the former Xamlaxyeltxw, or your  grandmother, the former Xamlaxyeltxw, tell you -- did  they -- did they tell you about the territory, your  territory?  Yes, they told me.  And did they tell you who used the territory and had  authority over the territory?  Yes, they told me.  From what they told you, can you tell us if the  Nishga, if any Nishga used your territory or lived on  the territory in their lifetimes?  No, they never mentioned this to me, if this happened.  There is only one thing I know is that this happened  after the white man came.  When the missionaries came,  they -- in our village there was some people that  turned to this missionaries, and there were some that  didn't, and in those times the Nishga people were  strong in this religion that the missionaries brought, 5909  S. Marsden (for Plaintiffs)  In chief by Mr. Grant  1 so what happened is some of the people from Kitwancool  2 moved to the Nisgas with the Nisgas.  They left the  3 territory in Kitwancool, and they moved with the  4 Nishga people, and now they are trying to claim some  5 part of the Kitwancool territory, and saying that this  6 is where they are from.  7 Q   Now, I have asked you yesterday and referred you today  8 to some of the laws, and I am going to go more  9 directly into the laws.  And I have asked you if these  10 laws that you have referred to apply to all of the  11 Gitksan, and you have indicated that the laws you  12 described do.  Can you tell the Court when you say  13 they apply to all of the Gitksan, which Gitksan  14 village -- which villages or the chiefs of which  15 villages are you referring to that these laws apply?  16 A   The Kitwancool and the other Gitksan people have one  17 in the same law, and is this what you are asking?  18 Q   Yes, that's what I am asking.  Was he asking for  19 clarification?  Yes.  Now, when you say the other  20 Gitksan people, can you tell the Court the people of  21 which communties are you referring to?  22 THE TRANSLATOR:   I think he misunderstood my question.  23 A  All the Gitksan people have the same law, and the  24 Wet'suwet'en have the same law, but I am not really  25 sure whether it's exactly the same.  26 Q   You mean the same as the Gitksan or not?  27 A  Wet'suwet'en, yes.  28 Q   When you say all of the Gitksan have the same law,  29 maybe I will, with the indulgence of my friends, I  30 will refer to some places.  Does this law apply to the  31 chiefs from Kuldo?  32 A   Yes, that's the same.  33 Q   And Gisagas?  34 A   Yes.  35 Q   Kispiox?  36 THE COURT:  I'm sorry, did you say no for Gisagas?  37 THE TRANSLATOR:  Yes.  38 THE COURT:  He said yes for Gisagas?  39 THE WITNESS:  Yes, it's the same.  4 0 MR. RUSH:  41 Q   Gitan'maaxs?  42 A   Yes, the same.  43 Q   Gitsegukla?  44 A   Yes.  45 Q   Gitwingax?  46 A   Yes.  47 Q   And Kitwancool? 5910  S. Marsden (for Plaintiffs)  In chief by Mr. Grant  1 A   Same.  2 Q   And the chiefs of Glen Vowell are actually --  3 MR. GOLDIE:  Well, please don't lead him on that.  4 MR. GRANT:  Okay.  5 Q   Where are the chiefs of Glen Vowell from?  6 THE COURT:  Almost a self evident question.  7 MR. GRANT:  No, I don't think it is.  8 THE COURT:  Is it not?  9 MR. GRANT:  That's why I want to clarify.  I left that village  10 out, and I want Your Lord to understand why.  11 THE COURT:  All right.  12 THE WITNESS:  I could not — I could not tell you, but I know we  13 have the same laws.  14 MR. GRANT:  15 Q   Okay.  Is Glen Vowell one of the traditional villages  16 of the Gitksan?  17 A   I don't think so.  18 Q   Do you know what village Kliiyem lax haa comes from?  19 35, My Lord.  20 A   The only thing I heard is that there was a movement  21 being made, because of the missionaries that came as  22 Salvation Army, and I am not too sure where they moved  23 from.  24 Q   Okay.  Now, I would like to ask you about the law  25 relating to the passing of names.  Now, where under  26 the Gitksan law can names be passed?  In what  27 occasions?  28 A   Nobody can just take a name and use it.  This has to  29 be done in the feast hall.  When a name is put on a  30 person, what happens is he stands and he -- and his  31 wilxsilaks call his new name out, and he has expenses  32 to pay.  When they call his new name out, then he pays  33 these people.  After this has happened, then this is  34 when he can use the name that's given to him.  35 Q   Do you have a spelling for wilxsilaks?  36 THE TRANSLATOR:  Wilxsilaks, w-i-1-x-s-i-l-a-k-s.  37 MR. GRANT:  38 Q   And what does wilxsilaks mean?  39 A   That's the father's relatives.  40 Q   And is that the same as the father's wil'nat'ahl?  And  41 I am asking you that, Madam Interpreter.  42 THE TRANSLATOR:  Yes, it is.  43 Q   Now, can a name be put on a person at any feast, that  44 is a feast for any occasion?  45 A   Yes, this is the time to give the names out.  It  46 doesn't matter whether it's the funeral feast or a  47 pole raising feast, this is open to -- for the names 5911  S. Marsden (for Plaintiffs)  In chief by Mr. Grant  1 to be given out to the people that don't have names  2 yet, the house members.  3 Q   What about a name such as your name, Xamlaxyeltxw, can  4 that name be passed at any kind of feast?  5 A   No, only when the chief dies, this is when the name of  6 the head chief is passed on.  7 Q   And is there a special feast to pass the name of a  8 head chief?  9 A   No.  10 Q   Why can your name only be passed when you or when the  11 head chief dies?  12 A   The head -- this is the head chief's name, and he's  13 responsible, and he has the power for that house, and  14 the only time they could put this name on somebody is  15 when the chief dies, because he is the head chief.  16 Q   Does anything else pass at the time the head chief  17 name passes?  18 A  What was the question?  19 Q   Does anything else pass at the time the head chief  20 name passes?  21 A  When the new chief takes the head chief's name, then  22 he is responsible for everything in that house of  23 passing of the territories.  And is that the question  24 you are asking?  25 Q   Yes.  I am asking if when a new chief takes on -- I'm  26 talking about a head chief here, when a new person  27 takes on the head chief's name, does he take on  28 anything else besides the name, and I understand you  29 have indicated Xamlaxyeltxw, that he is in charge of  30 the territories, and I am paraphrasing a little.  I  31 would like to just ask you, Madam Interpreter, could  32 you ask the witness if he is getting tired?  33 A   No, not.  34 MR. GRANT:  I'm a bit concerned, from knowing the witness.  It's  35 a dangerous question to ask.  36 THE COURT:  No one ever wants to say no.  Do you want to adjourn  37 now?  38 MR. GRANT:  I think -- just from watching the witness, I think  39 we should have an adjournment.  4 0    THE COURT:  All right.  41 THE REGISTRAR:  Order in court.  Court adjourned until 2  42 o'clock.  43  44 (PROCEEDINGS ADJOURNED FOR LUNCHEON RECESS)  45  46  47 5912  S. Marsden (for Plaintiffs)  In chief by Mr. Grant  1  2  3 I HEREBY CERTIFY THE FOREGOING TO  4 BE A TRUE AND ACCURATE TRANSCRIPT  5 OF THE PROCEEDINGS HEREIN TO THE  6 BEST OF MY SKILL AND ABILITY.  7  9 LORI OXLEY  10 OFFICIAL REPORTER  11 UNITED REPORTING SERVICE LTD.  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 5913  Proceedings  1  2 (PROCEEDINGS RESUMED AT 2:00)  3  4 THE REGISTRAR:  Order in court.  Calling Dalgamuukw versus Her  5 Majesty the Queen at bar, my Lord.  6 THE COURT:  Mr. Grant.  7 MR. GRANT:  Yes.  The ongoing saga of trying to get previous  8 documents organized here.  Exhibit 344 was --  9 THE COURT:  Counsel all can sit and proceed without Miss Brower?  10 She's not here.  I suppose we can go ahead, can we?  11 MR. GRANT:  I don't know actually.  I thought she would be here.  12 MR. MACAULAY:  I'll see she gets a transcript, my Lord.  13 MR. GRANT:  Exhibit 344 was reserved for excerpts from the  14 certified documents of the Registrar of Companies of  15 the tribal council, and Mr. Macaulay provided a copy  16 to me which was edited as per the directions of court,  17 and I've reviewed it, and I just was going to give  18 this copy to the Madam Registrar.  19 THE COURT:  All right.  This will be Exhibit 344.  2 0 MR. GRANT:  Yes.  21 THE REGISTRAR:  It was marked, my Lord, on March the 10th.  22 THE COURT:  All right.  23 THE REGISTRAR:  Certified documents.  24 MR. GRANT:  This is the actual exhibit.  25 THE REGISTRAR:  Very good.  Will you be giving — do you have a  26 copy for his Lordship?  2 7 MR. GRANT  2 8 THE COURT  2 9    MR. GRANT  Yes.  Thank you.  This was a provincial document -- exhibit, my Lord.  30 I'm not intending to refer to it in this person's  31 evidence.  32 THE COURT:  Is this the exhibit or is that an extra copy?  33 MR. GRANT:  That's an extra copy.  I gave my copy to be marked  34 as an exhibit, so --  35 THE COURT:  All right.  36 MR. GRANT:  My friends advise me they will provide me with a  37 copy.  Yes.  Mr. Goldie suggested I speak to the  38 schedule.  As I had indicated with respect to the  39 present witness, my lord, I anticipated taking one and  40 a half to two days.  I anticipate I will be until noon  41 on Monday, and the reason we had requested the  42 additional days was to complete this witness' evidence  43 so he does not have to return, and I would hope that  44 that could be done by the end of Tuesday, although it  45 may not be.  I guess we can proceed now that Miss  46 Brower is here, my Lord.  She can read the transcript  47 on her comments made on her. 5914  S. Marsden (for Plaintiffs)  In chief 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  THE COURT:  We've been talking about you in your absence, Miss  Brower.  MR. GRANT:  That I would hope that — and I am available to go  into the Wednesday of next week in order to complete  this witness.  Mr. Goldie wrote to me, and I knew he  had two difficulties next week, and I can't -- just  can't recall which days they are.  One of them --  MR. GOLDIE:  One of them is my physical absence in Vancouver on  Wednesday.  THE COURT:  Yes.  That's a problem.  MR. GRANT:  We could possibly do electronic communication, but I  guess Mr. Goldie doesn't wish that.  In any event, if  his cross-examination is not finished, then that  precludes it.  If his cross-examination was finished  then I would ask counsel to consider whether or not  for the cross-examination by Mr. Macaulay whether  other counsel can be here, but I'll leave that in his  hands because I don't really want the witness to have  to go up and down and come back again.  In any event,  assuming on the Monday or Tuesday of the week next,  the 16th Pete Muldoe will give evidence.  He is the  next witness.  I estimate his evidence will be seven  days .  THE COURT:  In chief or —  MR. GRANT:  No.  Total estimate we're trying for.  THE COURT:  Yes.  MR. GRANT:  And so if it started on the Tuesday, that would be  the bulk of the -- that would be three days in that  week, because the Friday is unavailable and three days  of the next week.  Following upon him would be David  Blackwater, three days, and again I say that's a rough  estimate, but the total, and following on him would be  Glen Williams, and that would take up the balance of  the next three weeks sitting, the next court month in  the case, and that's the schedule.  THE COURT:  And then we go to Smithers for the view.  MR. GRANT:  Oh, yes, then the view.  I wanted to speak to the  view on Monday or Tuesday, but I would like to --  we're having people investigate the whole examination,  but the proposal of the plaintiffs is it not be  reported, that it not be with a court reporter there.  It would be much more informal then.  We also take the  position that it not be with counsel, that lawyers not  be present, but a lay person, so that it's much more  informal that if -- and possibly this would be  conducive to your concept of a break from looking at  all of our faces, my Lord, every few weeks. 5915  S. Marsden (for Plaintiffs)  In chief 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  THE COURT  MR. GRANT  Well, it's a different kind of beauty, Mr. Grant,  Yes.  One of the reasons for that is the logistics  of the -- if it was by an aerial view was just the  capacity, and we -- but we recommend that, and we're  pleased that none of the counsel -- I mean none of the  plaintiff's counsel will be present or none of the  defence counsel, but the problem is one -- if one side  wants to have counsel there, it's almost a foregone  conclusion that everyone will have to.  The only  parallel I can give is Justice Meredith, I believe,  did a viewing in the Sanrich(?) case, and I don't know  whether it was by agreement or by his direction there  was no counsel there.  I think it was the size of the  boat was the problem in that case, and we have a  similar problem, and I would like to speak to that in  more detail next week.  MR. MACAULAY:  What layman would that be, if it was not counsel.  MR. GOLDIE:  Sir Wilfred Laurier.  MR. GRANT:  Possibly Joseph Trutch for the Province.  THE COURT:  Well, if we get Her Majesty to come along and it  would just be resolved.  MR. GRANT: That's quite true, or the Princess of Wales, any of  the royal family would probably resolve the problem.  THE COURT:  I did that once before, and what we did is we had a  Jet Ranger helicopter which accommodated a pilot and  four, and the judge and two counsel went together.  In  this case there would be a judge and three counsel,  which can still be accommodated in an ordinary sized  helicopter.  MR. GRANT:  Yes.  We don't want you to be -- the concept that we  have would be not that you would be -- counsel,  including plaintiff's counsel, are not the persons  that can probably direct you best in that.  THE COURT: Well, in my other one the balance of each crew came  along in separate aircraft. That was the only way of  doing it.  MR. GRANT:  That was one suggestion, is that we suggested the  parties rotate and at some different stages of the  trip someone ride with yourself, but it's the question  of we're investigating the cost factor and the  availability, but if it's a viewing we would submit  you would go -- would go out with persons who could  show you what it was, and the other thing is that I  think counsel -- well, I will leave it to counsel for  the defendant as to what their ideas are in the  viewing, but I would like to speak to it early in the 5916  S. Marsden (for Plaintiffs)  In chief 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  THE COURT  MR.  THE  GRANT  COURT  MR.  THE  MR.  THE  MR.  THE  MR.  MR.  week.  And I also anticipate that we would be two to  three days because of weather conditions and all of  that, and alternate --  Two or three days on the ground as well as  travelling time back and forth?  Yeah.  Two or three days in the north for you, yes.  All right.  Well, I have to bring up another matter  with counsel, and I will ask for their assistance with  this.  I don't know if counsel have been notified of  this, but on Friday the 27th Madam Justice Wilson of  the Supreme Court of Canada is receiving an honorary  degree at U.B.C. along with Chief Justice Nemetz'  wife.  There's some expectation I think probably  indicated that I should be at that convocation.  I  would defer to this trial if counsel think that it was  important that we do so.  I would like to have  counsel's candid views now, that is something that can  be accommodated.  If it's going to cause any  difficulty then I would not attend.  I think the  Justice of the Supreme Court of Canada is entitled to  an amount of consideration in a matter of this kind.  I think that I should probably be at the convocation  but I will wait to hear what counsel have to say about  that.  That would be the 27th of May?  Yes.  At two o'clock in the afternoon.  Well, I appreciate that, my Lord.  We could sit in the morning, if necessary.  Yes.  We're trying to allocate the scheduling.  As  you know, we're trying to finish all of this sector of  witnesses by the end of June.  All right, thank you.  I believe this morning where we left off I was  asking you about the passing of names --  GOLDIE:  Sorry.  Before my friend commences, my Lord, I  think when he speaks to the question of the view, that  he address the question of the mechanics of the -- not  the flight but the itinerary.  It may considerably  simplify matters when we come to talk about who goes  where and what aircraft and so on and so forth.  If  there is an itinerary laid out, that may be of  assistance to us if we're going to consider the  situation of a lay person in the aircraft, but we -- I  think it essential that all parties know where the  aircraft is going to go, what it's going to be -- what  route it is going to follow and where it is going to  stop.  GRANT  COURT  GRANT  COURT  GRANT  COURT  GRANT 5917  S. Marsden (for Plaintiffs)  In chief 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  THE COURT:  Yes.  And I would think that if the plaintiffs want  me to see sites A, B and C it may be the defendants  will want me to see X, Y and Z.  I think that those  matters must all be considered, so the sooner the  itinerary can be settled probably the more convenient  it would be for everybody.  All right.  Thank you, Mr.  Grant.  MR. GRANT: That's one reason why I only want to raise the  question of no counsel today. I hope that I can  provide some detail to my friends.  THE COURT:  I think you sufficiently startled your friends and  I.  MR. GRANT:  I think not having counsel was one of the factors  that I could safely say today was on our minds, and I  will get the itinerary.  MR. MACAULAY:  I take it, my Lord, that there will be, since  there will be no reporter my friend is suggesting that  no comments will be made to your Lordship about --  THE COURT:  Well, I would think that it would be certainly open  for counsel to point things out that they want me to  look at.  MR. MACAULAY:  They won't be there.  THE COURT:  Well, their representatives then.  Somebody's got to  point things out to me.  I've seen a lot of British  Columbia lakes but everyone is different, there's  always a reason to look at one.  MR. GRANT:  I think it would be a relatively pointless exercise  if no one could talk to you on this heli-plane flight.  COURT:  I think it must be Friday.  GRANT:  I'm wondering if people want evidence led this  afternoon.  Yes.  They're waiting patiently for you, Mr. Grant.  THE  MR.  THE  MR.  COURT  GRANT  Q  A  MR.  THE  MR.  Thank you, my Lord.  Everybody wants to say something  else.  Chief Xamlaxyeltxw, I just wanted to ask you,  you were referring to the passing of the chief's names  or the passing of names at feasts, and I just would  like to clarify one point.  When -- do you recognize  the term Miin simoogit?  This is the first person in the house, the head chief  is Miin simoogit.  Can you give a spelling for that, please?  M-i-i-n space s-i-m-o-o-g-i-t.  GRANT:  TRANSLATOR:  GRANT:  Q   Now, when a Miin simoogit's name is passed is anything  else passed at the same time?  A  When the decision has been made for a successor of the 591?  S. Marsden (for Plaintiffs)  In chief by Mr. Grant  1 former chief, then the name is put on this new chief,  2 and the power and the authority is -- is put on this  3 chief to make decisions on territories and the house  4 plans.  5 MR. GRANT:  Is there a — Madam Interpreter, is there a Gitksan  6 word when you say "power"?  7 THE INTERPRETER:  Dax gyet.  8 MR. GRANT:  Do you have that?  9 THE TRANSLATOR:  664.  10 MR. GRANT:  11 Q   664.  I would like to move into another area of laws,  12 Chief Xamlaxyeltxw, and ask you about the adoption  13 laws of the Gitksan.  If a Gitksan woman marries a  14 non-Gitksan, and by this I would mean either a  15 Nishga'a or a Tsimxsan or a non-Indian, is that person  16 usually adopted by the Gitksan?  17 A   Yes.  They could adopt this person into another house.  18 This is to save embarrassment for both the wife of  19 that person and that person himself, so as when  20 there's a feast he has a place to sit and he won't be  21 standing at the door.  22 Q   In this circumstance, when a non-Gitksan is adopted  23 into a house, can that non-Gitksan take the Miin  24 simoogit or head chief's name in that house sometime  25 in the future?  26 A   No.  This not could happen, because if he were to  27 leave the village then there would be nobody at his  28 seating place and they would not pass the chief's name  29 to him and because he's not a true member of that  30 house.  31 Q   Now, is there a type of adoption in -- recognized in  32 Gitksan law when a -- the membership of a house is  33 dwindling or getting -- the house membership is  34 getting too small?  35 A   Could you ask the question again, please?  36 Q   Okay.  Do chiefs adopt persons when the -- their house  37 is getting small?  38 A   Yes.  The adoption happens when the house is dwindling  39 and this chief has to know this person, they have to  40 be very close and they have to -- he has to know this  41 person very well.  Even if he's not from his own house  42 he would be from a different house, but he has to know  43 this person and he has to train this person to take  44 the chief's name.  He has to train him first and then  45 tell him what he's supposed to do.  46 Q   Can you give an example of where a chief has adopted  47 someone in because his house was getting too small and 5919  S. Marsden (for Plaintiffs)  In chief by Mr. Grant  1 then that person became a chief -- the successor?  2 A   Yes.  I seen this happen when George Milton, known as  3 Haak asxw, took in this prince who's actually from the  4 Nishga, and this prince was brought up in the village  5 of Sakum Higookw, and George Milton, Haak asxw, chose  6 him to be his successor or chose him to take the name  7 in his house.  8 Q   Is that -- was that adoption by George Milton and  9 Larry Wright later taking the name, was that in  10 accordance with the Gitksan law?  11 A   Yes.  It's the law.  12 Q   Have you heard of a situation where the house  13 membership -- let me rephrase the question.  Do chiefs  14 sometimes adopt persons to increase their house  15 membership and particularly women?  16 A   Yes.  They could do this, but that woman does not  17 hold -- does not have any authority in the house.  18 Q   Do you know of an example where a -- well, let me ask  19 you this:  Have you heard of chiefs adopting -- male  20 chiefs adopting their own daughters into their house  21 to increase the membership?  22 A   Yes.  This is the law that when the chief's house is  23 dwindling he could adopt his daughter -- as soon as  24 the daughter is born he could adopt this daughter and  25 bring her up into the house, and this daughter will  26 have rights in this house.  27 Q   In these circumstances would the daughter's children  28 automatically be members of that house?  29 A   Yes.  30 Q   Do you know of an example of this person who has  31 adopted their own daughter?  32 A   I seen this happening.  I seen this happening with  33 Sakum Higookw at Gitwangax.  Her dad adopted Doris  34 when Doris just a baby, and she is the -- she was  35 adopted because she was the producer of the house  36 members, and if the family and the house members  37 wanted her to be the head chief she could have done  38 this.  39 Q   And are her children -- does she have children?  40 A   Yes.  She has children.  41 Q   And are they members of the House of Sakum Higookw  42 today?  43 A   Yes.  44 Q   I would like to move to another area of the laws and  45 ask you about the marriage laws of the Gitksan.  46 There's been evidence -- well, let me ask you, can a  47 Gitksan under Gitksan law ever marry someone in the 5920  S. Marsden (for Plaintiffs)  In chief by Mr. Grant  1 same clan?  2 A   It is not the law of the Gitksan people to marry  3 within their own clans.  When this happened amongst  4 the relatives then this person could be put to death,  5 even if it's their own brother they could put him to  6 death when this happens.  7 Q   If this happens today is there anything that is done  8 by the Gitksan to resolve it?  9 A   Today what happens, they would adopt either the man or  10 the woman into another house, another clan.  11 Q   Is it still the law today among the Gitksan that you  12 are not to marry into your own clan?  13 A   Yes.  It's still there.  14 Q   Do the chiefs -- under the Gitksan law do the chiefs  15 have the authority to decide the punishment for a  16 person breaking this law in any particular  17 circumstance -- in each case, I should say?  18 A   Yes.  It's what they do today, they -- what I said  19 before, they're adopted into another clan.  20 Q   And is that by a decision of the chiefs?  21 A   Yes.  22 Q   Now, I would like to ask you about marriage.  Within  23 your house and within your own relatives or your  24 predecessors were marriages arranged by the parents?  25 A  We -- we did the right thing when we -- the right  2 6 thing when we got --  27 Q   You were saying "We did", the answer started --  28 A  We -- it was correct the way we went about our  29 marriage.  30 Q   And you're referring to?  31 A  With the Gitksan law.  32 Q   And you're referring to yourself and Kathleen?  33 A   Yes.  34 Q   Now, can you describe how it was decided who your  35 uncle Albert Douse would marry?  36 A   This is what my grandmother and my grandfather did,  37 they arranged the marriage of my uncle Albert Douse  38 with Rosie.  They have the -- they were in the same  39 level of class, and they were both prince and  40 princess, and this is the reason why my grandparents  41 chose Rosie.  42 Q   What house was Rosie from?  43 A   From Wiigyet's house.  44 Q   And is that the house of Wiigyet from Gitsegukla?  45 A   Yes.  46 Q   And your uncle Albert Douse was -- became the Chief  47 Xamlaxyeltxw you've described.  Was Rosie a chief or 5921  S. Marsden (for Plaintiffs)  In chief by Mr. Grant  1 was she related to a chief?  2 A   She was the niece of Wiigyet.  3 Q   Was your marriage with Kathleen -- well, did your  4 grandmother have anything to do with your marriage to  5 Kathleen?  6 A   It —  7 Q   Let me rephrase the question.  Was your marriage to  8 Kathleen arranged by the chief of your house?  9 A   No.  It wasn't arranged, but after we started living  10 together then they put up a feast.  And this is -- at  11 this feast they recognized that we were following the  12 law because of the different clans.  13 Q   And is that -- I'm sorry?  14 A   Because of Kathleen was a prince in Guxsan's House.  15 Q   A princess?  16 A   Princess.  17 Q   And who put up that feast, which house put up the  18 feast?  19 A  At this time we were at Gitsegukla, and the frog clan  20 of the Gitsegukla put the feast up.  21 Q   And that is -- is the frog clan of Gitsegukla the  22 Wiidil of Guxsan?  23 A   Yes.  24 Q   I would like to move to another area -- oh, let me ask  25 you this.  In the description of the marriage, when  26 you say the chiefs or persons married their own rank,  27 is that a law that's common to all of the Gitksan?  28 A   Yes.  That's the Gitksan law.  29 Q   I'd like to move to a new area of laws and ask you  30 briefly about the crests.  Now, before I do that I ask  31 you what the Gitksan word for law is?  32 A  Ayook.  33 MR. GRANT:  Do you have a spelling for that or a number  34 reference?  35 THE TRANSLATOR:  A-y-o-o-k.  36 THE COURT:  Okay.  37 MR. GRANT:  And what is the Gitksan word for crests?  Madam  38 Interpreter, you can give me that word if you want  39 THE INTERPRETER:  Ayuks.  40 MR. GRANT:  And how do you spell that?  Is it spelled  41 differently?  Can you give that spelling, please.  42 THE TRANSLATOR:  It's A-y-o-o-k.  43 THE COURT:  That's law.  What is the crest now.  44 THE TRANSLATOR:  I'm sorry.  It's A-y-u-k-s.  45 MR. GRANT:  Is there a number there?  46 A   It's 361.  47 THE COURT:  361. 5922  S. Marsden (for Plaintiffs)  In chief by Mr. Grant  1  MR.  GRANT  2  Q  3  4  5  6  A  7  Q  8  9  A  10  11  12  13  14  Q  15  16  A  17  18  19  20  21  Q  22  23  24  25  A  26  27  28  THE  COURT  29  A  30  MR.  GOLDI  31  MR.  GRANT  32  Q  33  34  35  36  A  37  THE  COURT  38  MR.  GRANT  39  THE  COURT  40  MR.  GRANT  41  Q  42  43  44  45  A  46  47  361, your Honour.  Now, you've described the crest of  your house, and -- or one of the crests and the  history of that crest.  Do all the chiefs who hold a  territory have crests?  Yes.  And is there a relationship in Gitksan law between the  crests and the territory of a chief?  In the ancient times when the people acquired their  crests they go through a hardship, and some of the  people suffer while acquiring the crest.  And this --  this is why they -- this is how they acquire these  crests .  And can you explain how these crests relate to the  territories of the chiefs?  The Ayuks is always acquired from the territory, and  in the ancient time it was very hard to get these  Ayuks, and it wasn't easy for them to get these Ayuks  and this is why -- this is why the Ayuks is very  important to them.  You described yesterday how Looxoon had originally  come from your house and how Looxoon has crests that  were from your house.  Does Looxoon have his own  territory today as well?  Yes.  Looxoon has his own territory, and it's true  that he was from Xamlaxyeltxw's house before today.  He has territory right next to Xamlaxyeltxw.  :  Right next to?  Xamlaxyeltxw.  £:   That is in the Kitwancool territory.  Well, I'll go into that.  Yeah.  Is Looxoon's house  and territory part of the Kitwancool territory that's  outside of the claim of the Gitksan chiefs in this  case?  Yes, Kitwancool.  Shall we take the afternoon adjournment, Mr. Grant?  I could have one more question and leave the area.  Yes, go ahead.  I didn't mean geographically.  I should never leave an  opening like that for my friend.  These -- the laws  about the crests that you've described, are these laws  the same for all of the Gitksan?  Yes.  Each house has its own Ayuks, and no one from  another house is supposed to use another person from  another house's Ayuks, crest. 5923  S. Marsden (for Plaintiffs)  In chief 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. GRANT  THE COURT  MR. GRANT  THE REGISTRAR:  You're referring -- okay.  All right, thank you.  Thank you, my Lord.  Order in court.  (PROCEEDINGS ADJOURNED AT 3:00)  I hereby certify the foregoing to be  a true and accurate transcript of the  proceedings herein transcribed to the  best of my skill and ability  Graham D. Parker  Official Reporter  United Reporting Service Ltd. 5924  S. Marsden (for Plaintiffs)  In chief 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  THE  THE  MR.  REGISTRAR:  COURT  GRANT  Q  (PROCEEDINGS RECOMMENCED AFTER A BRIEF RECESS)  Order in court.  Ready to proceed, My Lord?  Yes please.  Mr. Grant.  THE  THE  THE  MR.  I would like to move into another area of laws, and  this is laws of the Gitksan relating to the  territories and the fishing grounds of the Gitksan and  the authority of the chiefs.  And for convenience I  will refer to your house, but I am asking this  question in terms of the general laws.  Who in your  house has the power and is responsible for all of the  territories and fishing sites of your house?  A It is always the first chief, the head chief to be  responsible to have power and authority over these  matters.  Q   And when you say the first chief, Madam Interpreter.  TRANSLATOR: The head chief.  Q   The head chief.  Is that the same in Gitksan to what  would be referred to as Miin Simoogit?  A   Uh-huh.  Q   Now, can the head chief give authority or delegate  this authority to care for the territory and fishing  sites to other people in his house under the Gitksan  law?  A   Yes, the head chief could do this, but only at the  time the pole has been raised.  This is when the chief  will give out territories, and he will give these  people power to look after the territories.  Q   And this particular time of the pole being raised, is  this what is referred to as Baxmaga?  A   Yes.  Q   Now -- oh, yes, I think it's a number.  TRANSLATOR: 1222.  COURT:  Thank you.  GRANT:  Q Now, you know that -- okay. You have described that a  head chief's name passes on when the former head chief  dies. Does the Baxmaga occur some time later than the  funeral feast at which the new chief takes the name?  A   Sometimes some people would have the Baxmaga about a  month later, and a month later is when -- oh, this is  a year later.  Q Now, do you -- between the time that a new chief takes  the name and the Baxmaga, which you say may happen a 5925  S. Marsden (for Plaintiffs)  In chief 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  A  Q  A  THE  MR.  A  COURT  GRANT  Q  A  Q  THE  MR.  THE  THE  THE  THE  THE  THE  THE  MR.  year later, who is the caretakers for the different  fishing sites and the different territories?  The head chief holds this power until it is time for  him -- can I clarify with him?  Yes, please clarify.  The new chief that has the name is responsible for the  fishing sites and for the territory, and until the  raising of the pole, then he will show his power.  Now, what about the circumstance where the former head  chief had given permission to persons to care for the  fishing sites or parts of the territory?  I am not  finished the question, but maybe you want to translate  that.  And those caretakers are still alive at the  time that the former head chief dies?  Yes, it remains the same until the caretaker dies, and  then they will chose another one to care for the --  that part of the territory.  The former caretakers carry on?  Yes.  So at the funeral feast of the head chief is it  correct that the former caretakers carry on?  Yes, they are the same.  Now, I think I can ask Madam Interpreter, when you say  caretakers, is there a Gitksan word or phrase that is  used?  TRANSLATOR:  Ama gyaa'dihl lax yip.  GRANT:  Can you give that please.  WITNESS:  The first part is 610, A-m-a, g-y-a-a, d-i-h-1.  COURT:  D-i-h-1?  TRANSLATOR:  Uh-huh.  COURT:  That's caretaker.  TRANSLATOR:  And l-a-x, underlined, y-i-p.  COURT:  Thank you.  And that means caretaker?  TRANSLATOR: Yes.  GRANT:  Q   Does that mean caretaker?  A   Yes.  Do you know Tenimgyet?  Yes, I know him.  Do you know if the present Tenimgyet, Art Mathews, has  raised or is going to raise a pole?  Yes, I heard that they were going to raise a pole, but  I don't know exactly when they are going to raise this  pole.  And you were present at the first cut ceremony for the  raising of Hanamuxw pole in April, 1987?  I wasn't there when they cut the pole down, but I went  Q  A  Q  A  Q  A 5926  S. Marsden (for Plaintiffs)  In chief by Mr. Grant  1 when they were going to start carving the pole.  I  2 went when Gwaans was there.  3 Q   Okay.  And Hanamuxw is intending to raise that pole?  4 A   Yes, he is supposed to raise this pole.  5 Q   And when Hanamuxw raise the pole, is this the time  6 when she could announce if there are new caretakers  7 for her fishing sites?  8 A   Yes, this is the law.  9 Q   And is this the same if -- I'm sorry -- if Tenimgyet  10 raises a pole?  11 A   Yes.  12 Q   When a new chief takes on the name, how does he  13 demonstrate his authority over the territory?  14 A   Is this when the former chief just dies?  15 Q   Yes.  16 A  As soon as the word is out that the chief is dying,  17 then the members are prepared, and they -- and they  18 select a successor.  19 Q   Okay.  Now, you may have misunderstood my question.  20 Other witnesses have described what happens at that  21 time when a chief is dying.  If I could just rephrase  22 it.  You have described that the new chief will take  23 the name at the funeral feast.  You have described  24 that earlier.  How does he demonstrate his authority  25 over the territory at that funeral feast when he takes  26 that name?  How does he show it?  27 A   This is the law of the Gitksan people, that when he is  28 there, he shows the amount of money he is spending,  29 and he pays for all the expenses of the former chief.  30 Q   Can there be occasions when the other chiefs do not  31 recognize the authority of the new chief, and why  32 would -- well, I'll ask that first.  33 A   I have never seen this happen before.  This is a real  34 serious matter, and they are giving each others a lot  35 of support at this time.  36 Q   I would like to refer you to -- can I have Exhibit  37 30A, please, Madam Registrar.  I think I have a copy  38 for the court, an extra copy.  39 Q   Now, maybe, Madam Interpreter, could you just look at  40 that first, and refer you to page 3 of Exhibit 30A.  41 Madam Interpreter, did you translate page 3 earlier  42 today to the witness?  43 THE TRANSLATOR:  Yes, I did.  44 Q   Chief Xamlaxyeltxw, you recall earlier today that  45 Madam Interpreter translated a speech that you gave at  46 the first cut ceremony in April, 1987?  Do you  47 remember her translating that for you? 5927  S. Marsden (for Plaintiffs)  In chief by Mr. Grant  1  A  2  Q  3  4  5  A  6  MR.  GRANT  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  THE  COURT  22  23  24  25  MR.  GRANT  26  THE  COURT  27  28  29  30  31  32  MR.  GRANT  33  THE  COURT  34  35  MR.  GRANT  36  37  38  39  40  THE  COURT  41  42  43  MR.  GRANT  44  45  46  THE  COURT  47  Yes.  And is that translation, or is what she read to you or  translated to you, was that what you said at that  ceremony?  Yes.  :   Okay.  Now, My Lord, I would ask if this can be  marked as an exhibit proper at this stage.  It's an  exhibit for identification, and I wish to advise the  Court that Gwisgyen, Stanley Williams, had his speech  read to him and identified it as his at his  commission.  In fact this is also an exhibit in his  commission.  4467, yes.  And the first part was also  read, that is the statement of Lelt was read, and  Gwisgyen gave evidence that that was what Lelt said at  the time.  And of course with respect to the statement  of Lelt, it's -- it was read to him for whether it was  said and whether he agreed with what was said there.  It wasn't -- in fact it wasn't -- in fact that what's  was said.  I was wondering if we could have it marked  as an exhibit proper.  :  Well, wasn't there an argument about this at the  time of the evidence on the video about being hearsay,  and an argument advanced that I shouldn't hear even  the audio portion because it was hearsay?  :  Yes, you heard --  :  I overruled that and said I was going to hear it  all, if I was going to see the -- if I was going to  see the video, I was going to listen to what was said,  even though I knew I wouldn't be able to understand  it, because I thought that it might be part of the  visual experience too.  :  Well, it was part of the event.  :  It was part of the event.  The words themselves are  surely hearsay, aren't they?  :  Yes, but what I am saying is that this witness  identifies these as his words.  He is now here.  That,  of course, was at the time that these words were being  put in through Gwaans, who did not speak or was not  transcribed here.  :  Well, the most evidentiary value that could be had,  if it's marked now, would be as evidence of what the  witness said.  : This is evidence of what the witness said, that's  right, and I want to ask the witness about this, of  course, now that he is here.  :  Well, one of the problems I have is I don't  subscribe to the hearsay theory that says you can put 592?  S. Marsden (for Plaintiffs)  In chief 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. GRANT  THE COURT  MR.  THE  MR.  GRANT  COURT  GRANT  THE  MR.  THE  MR.  THE  MR.  THE  MR.  THE  MR.  in one side of a conversation.  Well, this is not one side, though, in the sense --  this was a speech made by each of these three people.  Gwisgyen identified his, Gwisgyen identified that Lelt  said his, and this witness has identified his.  All of which proves practically nothing, except that  he said it.  That's right, that he said it.  Where does that take any of us?  Because I am going to ask the witness about -- I am  going to ask him about what he said.  I mean, I  think -- I think, with respect, My Lord, that I think  that in a way it's -- if the witness had been speaking  in English, you would have heard what they said as  part of the event.  They didn't speak in English, so  as an aid to the Court and so that people could  understand what was said, it was translated, and that  was part of the event.  And I'm just asking it be  marked as an exhibit.  I don't want to lean on open doors.  What's the  position of counsel for the defendants?  Well, I'm quite prepared to take the evidence as it  now stands, that this witness says I said these  things.  COURT:  These words?  GOLDIE:  At that event.  So all that it proves is that he  said them.  COURT:  Yes.  All right.  Well, Mr. Macaulay?  MACAULAY: I have nothing to add to that, My Lord.  COURT:  Well, what you are asking, then, is that Exhibit 30A  for Identification now be Exhibit 30A?  GRANT:  Yes.  COURT:  Well, I think that can now be ordered.  COURT  GOLDIE  GRANT:  Q  A  (EXHIBIT NO. 30 A - SPEECH OF S. MARSDEN AT  FIRST CUT CEREMONY OF APRIL, 1987)  Now, can you tell us, Chief Xamlaxyeltxw, why you made  this speech, or why you said this at the K'ots gans,  why did you speak there?  It is the law of the Gitksan people to do this.  They  are there to give these people strength.  They are  there to give these people that are getting the pole  ready, they are there to give them their blessing.  Now, in your speech you said there is a frog on there  where it came from, where it comes from is what we  call wilksiwitxw, and it is the law that they use it, 5929  S. Marsden (for Plaintiffs)  In chief by Mr. Grant  1 they use what is their fathers.  Can you explain what  2 you were referring to there, and why it's on the page  3 where his --  4 A   This is the reason why this frog is there, why they  5 use this crest.  This crest belongs to their father,  6 and to show respect for their father, they take this  7 crest and they show it off, and this is why this crest  8 was on this pole.  When the chief dies, this frog at  9 the bottom of the pole is not used any more.  It's  10 removed from the bottom of the pole.  And the  11 successor will do the same thing.  If he wants to, he  12 will put his father's crest at the bottom of this  13 pole.  14 Q   Okay.  In this case are you referring to the  15 particular pole of Hanamuxw?  16 A   Yes.  17 Q   Okay.  You said at the very beginning of your talk,  18 "It's the real law, the laws of our grandfathers is  19 when they start making a pole, they stand over it."  2 0 Can you explain to me what you -- what you mean when  21 you say the laws -- "it's the real laws, the laws of  22 our grandfathers is when they start making a pole"?  23 What laws are you referring to?  24 A   It is -- I am referring to our grandfathers' law.  25 Q   Were you referring to the law that you have just  26 described about -- were you finished the answer on  27 that?  28 A   This is what we are referring to, our forefathers.  29 Q   In the video, I believe that's Exhibit 30, and in  30 reference here it shows that you sang two songs at  31 that ceremony.  Why did you sing there?  32 A   This is the law of our forefathers.  This is what they  33 do.  They would -- while standing over the pole they  34 would sing the Limxoo'y, and the songs, the Limxoo'y,  35 is not just used everyday, it is used at an important  36 event, because this is a very serious matter of what  37 is going on.  38 Q   Does the Limxoo'y have any relationship to Daxgyet?  39 A   Yes.  40 Q   Can you explain please?  41 A  When the Limxoo'y is sang, it is very important and  42 it's very powerful.  It is used only when important  43 events are happening, and this is why we sing these  44 songs.  We put -- there is power in these songs.  We  45 put the power, the Daxgyet onto the person that is  46 raising the pole.  47 THE COURT:  Is this a convenient place to adjourn, Mr. Grant 5930  S. Marsden (for Plaintiffs)  In chief 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  please?  MR. GRANT:  Yes, the witness indicated he has finished the  answer.  We can adjourn now.  THE COURT:  All right.  THE REGISTRAR:  To Monday at 10 a.m.?  THE COURT:  Yes, Monday at 10 o'clock.  MR. MACAULAY: My Lord, I suggest that we sit longer hours -- sit  longer hours on Monday and Tuesday.  I would expect  that Mr. Marsden would want to be finished by Tuesday  night.  I don't get the feeling that it's going very  fast.  THE COURT:  Excuse me, Mr. Macaulay.  I'm just checking to see  if I am already committed to anything on Monday  morning.  What about your witness, Mr. Grant?  MR. GRANT:  Yes.  THE COURT:  All right.  Well, I'm available.  Mr. Goldie, do you  have to do other things before court on Monday?  MR. GOLDIE:  I have one, but it could go ahead.  Ms. Sigurdson  could be here.  THE COURT:  Yes.  Mr. Grant?  MR. GRANT:  The witness has indicated -- I think we could try it  by starting earlier.  THE COURT:  I think we should start earlier.  If we have to  adjourn earlier, we haven't lost anything.  That's right.  And I concur fully with Mr. Macaulay.  9 o'clock?  What time?  I didn't hear you, My Lord.  9 o'clock.  That's fine with myself.  That's fine.  Has my friend got any estimate?  Given where we are now in his notes, perhaps he could  tell us if he expects to be finished by noon.  How long, Mr. Grant?  Well, that's my objective, is to finish by noon on  Monday or earlier.  As Mr. Goldie knows, he and I are  in communication about it, there are a series of  documents relating to a Notice to Admit that he has  given to me that he indicates relates to this witness,  and I have to review those.  THE COURT: You think you can finish by noon on Monday?  MR. GRANT:  My objective is so I can finish by noon on Monday,  so cross-examination can start in the afternoon.  THE COURT:  Well, I have a very bad list on Monday which I will  have to speak to at 10 o'clock, but we can get an hour  in before that.  MR. GRANT:  I will try to schedule a topic that will just cover  the hour.  MR.  THE  MR.  THE  MR.  MR.  THE  MR.  GRANT  COURT  GRANT  COURT  GRANT  GOLDIE  COURT  GRANT 5931  Proceedings  1 THE COURT:  All right.  9 o'clock on Monday.  Thank you.  Madam  2 Reporter, you will inform your office?  3 THE REPORTER:  Yes, My Lord.  4 THE REGISTRAR: Order in court.  Court will be adjourned until 9  5 on Monday morning.  6  7 (PROCEEDINGS ADJOURNED TO MONDAY, MAY 9, 198 8  8 AT 9: 00 A.M. )  9  10 I HEREBY CERTIFY THE FOREGOING TO  11 BE A TRUE AND ACCURATE TRANSCRIPT  12 OF THE PROCEEDINGS HEREIN TO THE  13 BEST OF MY SKILL AND ABILITY.  14  15    16 LORI OXLEY  17 OFFICIAL REPORTER  18 UNITED REPORTING SERVICE LTD.  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 5932  Proceedings  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

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