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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1988-02-16] British Columbia. Supreme Court Feb 16, 1988

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 3577  1 February 16, 1988  2 Vancouver, B.C.  3  4 THE REGISTRAR:  Order in court.  Calling Delgamuukw versus Her  5 Majesty the Queen at bar, My Lord. I caution you Mr.  6 Mitchell and Mr. Holland, you're still under oath.  7 THE COURT:  Gentlemen, I think that I — ladies and gentlemen, I  8 think I should say that I am preparing some brief  9 reasons for judgment dealing with some of the matters  10 that we mentioned yesterday -- I'm sorry, on Friday,  11 and I'll have that out probably not today but  12 hopefully tomorrow, but I have concluded that I don't  13 think that I should make the order that Mr. Grant  14 asked me to make with regard to the official reporters  15 at this time.  And I will give reasons for that, but I  16 think I should say this, that I cannot be unaware of  17 the -- from the material that was filed earlier that,  18 and from what Mr. Grant said, that the plaintiffs are  19 being funded in part by Canada and that Mr. Lightbody  20 advises the -- Canada in that regard.  And my view is  21 that the reporters should be paid on the basis of the  22 one-third arrangements that had been made or offered,  23 but that I should ask counsel to convey my compliments  24 to Mr. Lightbody and ask him to look into this  25 question and give me a report through counsel of any  26 matter that he thinks I should know about which may  27 lead me to change my mind on that question, and I'd be  28 glad to do that if Mr. Lightbody looks into it.  29 The reason of course for my uneasiness about this  30 is I do not wish to get involved in the plaintiffs'  31 funding and it's really a question of priorities I  32 think and for that reason I would like the advice and  33 assistance of Mr. Lightbody and I would hope that he  34 might be able to prepare me a report and give it to  35 counsel and if there's no objection I'd like to see  36 what he says in connection with this matter.  But I do  37 not think it fair to keep the reporters unpaid, as it  38 were, while this investigation is being conducted.  39 Thank you.  40 Mr. Mackenzie?  41 MR. MACKENZIE:  Thank you, My Lord.  My Lord, quickly, and I'll  42 hand up a couple of -- a table of contents and one  43 more tab for the blue binder, and I can show Mr. Rush  44 this —  45 MR. RUSH:  -- your examination's only got an hour to go.  46 THE REGISTRAR: Does that go in the supplemental book?  47 MR. MACKENZIE:  Yes, it goes in the blue book. 3578  1 THE COURT:  In the blue book.  Thank you.  This is tab 9, is it?  2 MR. MACKENZIE:  Yes, My Lord.  3 THE COURT:  Thank you.  4  5 CROSS-EXAMINATION CONT. BY MR. MACKENZIE:  6 Q   Now, Mr. Mitchell, I'm instructed that the Caspit  7 territory you've been speaking about is about a  8 hundred and eighteen miles in area, do you have any  9 knowledge of that figure, square miles?  10 A   No.  11 THE COURT:  A hundred and eighteen square miles?  12 MR. MACKENZIE:  A hundred and eighteen square miles, My Lord.  13 THE COURT:  You don't know?  14 THE WITNESS:   No, I don't know.  15 MR. MACKENZIE:  16 Q   And you say Stanley Morris holds that territory?  17 A   Now, yes.  18 Q   Stanley doesn't trap does he?  19 A   He doesn't trap.  No.  20 Q   Now, referring to your affidavit, Exhibit 185, tab 1,  21 paragraph 10 in the red book.  Now, in that paragraph  22 10 you say the Upper Harold Price Creek territory is  23 claimed by the House of Woos.  Do you see that?  24 A   Yes.  25 MR. MACKENZIE:   And referring to Exhibit 211 — My Lord, we're  26 going to be referring to this exhibit.  I would  27 request that the witness be given that, please.  2 8 THE COURT:  Yes, thank you.  29 THE REGISTRAR:  211?  30 MR. MACKENZIE: Yes, it's the map.  31 THE COURT:  Yes.  32 THE REGISTRAR:  Yes.  33 MR. MACKENZIE:  34 Q   And when you -- in paragraph 10 you refer to the  35 territory shown on this map Exhibit 211, don't you,  36 entitled "Woos"?  37 A   Yes.  38 MR. MACKENZIE:   Does Your Lordship have that?  3 9 THE COURT:  Yes.  40 MR. MACKENZIE:  41 Q   And on the map, Exhibit 211, the external boundary of  42 the land claim goes down the eastern boundary of that  43 Woos territory, doesn't it?  44 A   Yes.  45 Q   Yes.  And on the eastern side of that are the Babine  46 people, correct?  47 A   Yes, that's right. 1  Q  2  3  A  4  Q  5  A  6  Q  7  A  8  Q  9  A  0  Q  1  A  2   MR.  MAC]  3579  Now, Mr. Roy Morris is the chief Woos; is that  correct?  Woos, yes.  Yes.  And he's a high chief in the Gitdumden clan?  Gitdumden.  Yes.  And he's about 50 years old?  About 50, yes.  And he's been living in Moricetown since 1957 about?  About that.  Yes.  And do you know that he became the chief Woos in 1978?  About that time.  I'm not too sure though.  \FZIE: Now, referring to tab 9 of the blue binder  13 interrogatory number 9, My Lord.  14 THE COURT: Tab 9?  15 MR. MACKENZIE:  Yes, My Lord.  16 THE COURT:  Yes.  17 MR. MACKENZIE:  18 Q   Interrogatories of Mr. Roy Morris.  Interrogatory 9,  19 "State the time, when, where and by what manner you  20 became hereditary chief of the Wet'suwet'en?  In 1978  21 I received the name Woos."  22 Now, you know Mr. Roy Morris don't you?  23 A   Yes.  24 Q   And he is a -- he's one of the Wet'suwet'en hereditary  25 chiefs isn't he?  26 A   Yes.  27 Q   And he is one of the chiefs that gave permission to  28 commence the lawsuit isn't he?  29 A   Yes, he would be the head -- head of the clan at this  3 0 time.  31 Q   And Woos' territory was at Chapman Lake wasn't it?  32 A   Their territory would be about south, approximately  33 southwest of Chapman Lake.  34 Q   Yes, bordered on Chapman Lake?  35 A   No, it doesn't border Chapman Lake.  No.  36 MR. MACKENZIE:   Referring to Exhibit 84 which is Mr. Henry  37 Alfred's map.  38 MR. RUSH:  On the interrogatories —  39 MR. MACKENZIE:  On the interrogatories.  40 MR. RUSH:  — marked as a draft map.  41 MR. MACKENZIE:  I appreciate my learned friend's assistance, My  42 Lord.  4 3 MR. RUSH:  Good.  44 THE COURT:  Oh, come on gentlemen, these sort of things aren't  45 necessary.  46 MR. MACKENZIE:  47 Q   Now, Woos' territory is beside Chapman Lake on that MR.  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  li  19  20  21 THE  22 MR.  23 THE  2 4 MR.  25 THE  2 6 MR.  27  28  2 9 MR.  30  31 THE  32  33  34  35  36  37  38  39  4 0 MR.  41 THE  42  43  4 4 MR.  45 THE  46  47  3580  map Exhibit 84, isn't it Mr. Mitchell?  A   Is that the one that's far east, this one here?  Q   Yes.  That's the lake at the far east?  A   Yes, that's the lake.  I don't know the name of it  though in Indian language.  Q   Yes.  Perhaps Mr. Holland could translate the name of  that lake for you, Mr. Mitchell?  A   Yes.  Lok' wenii.  I know that lake.  Q   Is that Chapman Lake?  A   Yes.  Q   And the Woos territory is along -- is just to the west  of that lake isn't it?  A   This map here is quite different from what I know.  I  know that the Babine area is west of Lok' wenii.  Q   Yes.  And that's the area of the Babine Gitdumden  isn't it?  A   I don't know too much about Gitdumden Babine.  MACKENZIE:   Thank you.  At Volume 35 of the transcript Mr.  Alfred Joseph was examined for discovery, page 2283 at  line 4.  COURT:  I'm sorry, what are you reading from?  MACKENZIE:  Volume 35, My Lord, page 2283.  COURT:  Of the trial?  MACKENZIE:  Line 4, cross-examination of Mr. Alfred Joseph.  COURT:  At trial?  MACKENZIE:  Yes, My Lord.  Mr. Alfred Joseph has indicated  that Woos' area is Mr. Roy Morris' area.  Are you  aware of that, as shown on Exhibit 84?  RUSH:  Well, I think that should be read to the witness if  that's what Mr. Alfred Joseph said.  COURT:  Well, I don't think it should be read to the witness  at all Mr. Rush, but this doesn't seem to be a view  that counsel shares with me that it's of no particular  assistance to put to one witness what another witness  has said.  I'm more interested in what this witness  says.  It used to be the flexible rule that judges  wouldn't allow it under any circumstances.  The rule  has certainly become quite relaxed of late perhaps  unfortunately.  MACKENZIE:  Well, I won't press it.  COURT:  How does it advance the case to tell this witness  what somebody else said?  I suppose the next question  would be "Well, do you agree with what he said?"  MACKENZIE:  Yes, My Lord.  COURT:  Some ancient wisdom says that that's terrorizing one  witness with the evidence of another.  Now, I don't  think anyone's going to be terrified here, but how 3581  1 does it really help to find out that a witness says  2 "Well, if he says it, then I guess I agree with it."?  3 I think we better just find what the witness says his  4 own evidence is, and it's a matter of argument to make  5 comparisons.  6 MR. MACKENZIE?  7 Q  Yes, My Lord, I won't press that, My Lord.  8 On Exhibit 84 you'll see that there is no Woos  9 territory in Upper Harold Price Creek; correct?  10 A   No.  11 Q   So your evidence is that you don't know about the  12 Babine Gitdumden near Chapman Lake?  13 A   No.  No, I don't know nothing about those -- that  14 area.  15 MR. MACKENZIE:   Thank you.  Now, Mr. Roy Morris knows his  16 boundaries doesn't he, Mr. Mitchell?  I think we've  17 finished with that one.  Thank you.  18 MR. RUSH:  My Lord, isn't that really for Mr. Roy Morris?  19 THE COURT:  I should think so.  You're asking the witness to  20 assume that Mr. Roy Morris knows his own boundaries I  21 suppose are you Mr. Mackenzie?  22 MR. MACKENZIE:  Yes, My Lord.  My question is does Mr. Roy  23 Morris as a Wet'suwet'en hereditary chief know his  24 boundaries.  My Lord I think that's a very common  25 question in this litigation.  26 THE COURT:  Well, it is, but I'm getting a little weary.  It's  27 of no earthly assistance.  28 MR. MACKENZIE:  29 Q   I won't press it, My Lord.  30 Now, referring to Tab 5 in the blue brief.  This  31 is an excerpt from trial Exhibit 5 "External  32 Boundaries of the Gitksan/Wet'suwet'en".  You see the  33 Wah tah k'eght territory in the centre of that map,  34 Mr. Mitchell?  35 A   Yes.  36 Q   There's no Woos territory marked in there is there?  37 A   No.  38 MR. MACKENZIE:   Now, referring to tab 8 —  39 THE COURT:  Same book?  40 MR. MACKENZIE:  41 Q   Same book, the blue book, My Lord.  This is an excerpt  42 from trial Exhibit 101.  This is the Carrier Sekani  43 overlap map and the Woos territories there appear to  44 the east of the boundary don't they?  45 A   You mean towards Chapman Lake?  46 Q   Yes.  47 A   Yes. 1  Q  2  A  3  Q  4  5  A  6  Q  7  8  A  9  Q  10  11  A  12  Q  13  14  A  15  Q  16  A  17  Q  18  A  19  Q  20  A  21  Q  22  23  A  24  Q  25  26  A  27  Q  28  A  29  Q  30  A  31  Q  32  33  A  34  Q  35  A  36  Q  37  38  A  39  Q  40  A  41  Q  42  43  A  44  45  Q  46  47  A  3582  And that's in Carrier Sekani territory isn't it?  Carrier Sekani, yeah.  There's no Woos territory shown in Upper Harold Price  Creek is there?  No.  Thank you, Mr. Mitchell.  You've been up to the  territory three or four times; is that right?  That's right.  And the last time was in the early 1970's; is that  correct?  Yes, around the 70's, yes.  And you didn't grow up in that territory did you?  You  didn't grow up there did you?  I didn't grow up there.  Now, you grew up in the Namox territory?  I growed up in the Namox territory.  Yes.  Now, Dick Naziel died in 1977 didn't he?  Yes.  He's your father-in-law?  My father-in-law.  Yes.  And his sons want to take over his father's trap line  don't they?  Don't work that way.  No, it doesn't.  His sons -- I'm sorry, I beg your  pardon.  His sons are Allan Naziel?  Allan Naziel.  Yes.  And Roy Naziel?  And Roy Naziel.  And those are your brothers-in-law?  Yes, my brother-in-laws.  And they applied to take over the -- their father's  trap line didn't they?  No, not that I know of.  They're in the Laksilyu clan?  They're the Laksilyu clan.  And do you know that Fish and Wildlife issued a permit  to allow Allan Naziel to trap in that territory?  No, not that I know of, no.  In 1985?  No, I don't know that.  Referring to the document at tab 3 of the blue book,  can you identify Dick Naziel's signature?  I can read it Dick Naziel, but I don't know if it's  his signature.  I don't know his signature, no.  Dick Naziel had a trap line up in this Upper Harold  Price territory didn't he?  Yes.  Yes. 1  Q  2  A  3  Q  4  5  6  7  8  9  A  10  Q  11  12  13  A  14  Q  15  16  17  18  A  19  Q  20  21  A  22  23  24  25  26  Q  27  28  29  A  30  31  32  Q  33  34  A  35  Q  36  A  37  Q  38  39  A  40  Q  41  42  A  43  Q  44  A  45  Q  46  47  A  3583  And that was a registered trap line?  Registered to him.  Yes.  Now, Mr. Mitchell, the other day you at Volume 53,  page 3194, you told, at lines 9 and following, you  told -- you told Miss Mandell that Wet'suwet'en  hunters and trappers from Ootsa Lake hunt and trap in  the Wet'suwet'en territories.  Do you recall saying  that?  Not in this area.  Do you recall saying that trappers and hunters from  Ootsa Lake trap in the Wet'suwet'en area? You said  that didn't you?  I couldn't catch which area you're talking about.  I'll put this question before you.  "Are there  Wet'suwet'en hunters and trappers who are from the  Ootsa Lake area who also hunt and trap within the  Wet'suwet'en territories?", and your answer is "Yes."?  Yes.  Yes, that's right, yes.  Now, what is the name of a hunter from Ootsa Lake who  traps in Wet'suwet'en territories?  Do you know one?  Around Ootsa Lake Chief Louie's son.  I forgot his  name, Andrew, I know -- I worked in that Ootsa Lake  area once.  I know Andrew family they got a trap line  in there.  That's in -- that will be on the north side  of Ootsa Lake.  That I know of.  Yes.  And you said that there are hunters from Grassy Plains  who hunt and trap in Wet'suwet'en territory.  Do you  know someone there?  I don't know the names of the boys that -- Keom  Morris' son, Late Keom Morris' sons and Tommy Skins,  they lived in there and they're Wet'suwet'en.  Now, do people from Decker Lake trap and hunt in the  Namox territory?  You mean that territory I was raised on?  Yes?  No.  Do people from Broman Lake hunt or trap in the Namox  territory?  No.  Do people from Maxan Lake hunt and trap in the Namox  territory?  Maxan Lake it's just our neighbours.  Yes?  They don't come into our territory, no.  Well, you testified that you trapped with your uncle  Boo, Donald Walter, didn't you?  Yes. 3584  1 Q   And he's at Palling isn't he?  2 A   Palling.  Yes.  3 Q   And did he come into Namox territory as well to visit?  4 A   Before my time probably, yes.  5 Q   Yes, he used to come into the Goosley Lake territory  6 to hunt and trap?  7 A   That I wouldn't know.  No.  I wasn't around them days.  8 Q   Now, Mr. Mitchell, yesterday you testified that -- not  9 yesterday, but last week you told us that when you go  10 hunting you don't obtain a permit; is that correct?  11 A   Yes.  12 Q   And -- but you're aware of the seasons for moose for  13 example aren't you?  14 A   Yes.  15 Q   Okay.  You know that the season ends on November 15,  16 don't you?  17 A   Yes.  18 Q   Yes.  And you know that the law requires you to get a  19 permit for hunting moose in winter don't you?  20 A   Yes.  21 Q   And January 1983 you got a permit for your son John  22 didn't you?  23 A   Yes.  24 Q   Yes.  And you got that to play it safe didn't you?  25 A   I was crippled that time.  I can't hunt for myself,  2 6 that's why I got a permit for John.  I had seven  27 broken ribs and if I was on my own I'd go out shoot  28 one moose.  29 Q   But you got the permit for John to play it safe didn't  30 you?  31 A   Yes.  32 Q   Yes, because you knew that without a permit he would  33 break the law; is that correct?  34 A   He had my pick-up.  They seize my pick-up, that's why  35 I did it, to play it safe, yes.  36 Q   And in 1983 you testified your son Vern also went  37 hunting for you didn't he?  38 A   Oh, he hunts for me all the time.  39 Q   And he obtained a sustenance permit then too didn't  40 he?  41 A   No, I don't know about his sustenance permit.  42 Q   Now, Vern went hunting for you in 1982 when you had  43 the accident -- or I'm sorry, Vern went hunting for  44 you in 1983 when you had the accident, is that your  45 evidence?  4 6 A   John did.  47 Q   Only John?  Yes? 1  A  2  Q  3  4  A  5  Q  6  7  A  8  9  10  11  Q  12  13  A  14  15  Q  16  A  17  Q  18  19  A  20  Q  21  A  22  Q  23  A  24  Q  25  26  27  A  28  Q  29  30  31  A  32  Q  33  A  34  35  Q  36  A  37  38  Q  39  40  A  41  Q  42  A  43  Q  44  A  45  Q  46  47  A  3585  Vern he hunts all the time.  Yes.  And you're not aware whether Vern obtained  sustenance permits or not?  No.  Have you told him that he does not require to obtain a  sustenance permit?  No, I never tell him that, but they know what to do on  their own.  I teach them how to hunt and like my  father teached me and I teach them Indian law, not  white man's law.  Did you teach them that they do not have to obey the  white man's hunting law?  Our ancestors never did a white man law before, so I  told them that, yes.  You told Vern that?  Yes.  Did you tell Vern not to obey the white man's hunting  law?  I just told him our law, that's all I told him.  And your brother Billy goes hunting also?  Yes.  And he obtained sustenance permits?  Not that I know of, no.  Okay.  I'm putting to you, Mr. Mitchell that Billy  obtained a sustenance permit on January 20, 1982.  Do  you know anything about that?  No, I don't know.  He doesn't live with me.  No.  Now, you testified that you go out to hunt moose  about two weeks before the white man's season; is that  correct?  Yes, a week before.  And you also hunt moose in the winter?  I get my moose in the fall.  I don't have to hunt,  I'll have enough meat for the winter.  Do you hunt moose in the winter also?  If out trapping, yes, we'll shoot them.  That's what  we live on out in trap line.  And do you know that other Indian hunters from  Moricetown kill moose in the winter?  I don't keep track of them, no.  But you know that they do don't you?  Yes.  And do you know that they don't obtain permits?  Not that I know of.  No.  You've been goat hunting every year up until about  four years ago?  Up until about five, six years ago, yes. 3586  1 Q   So you were hunting goats every year up until about  2 1980?  3 A   '80 or '79 I think my last time.  4 Q   And did -- let's say in 1979 did you hunt goats in the  5 Wah tah k'eght territory in 1979?  6 A  My last trip was I went to Caas weniige' tet tay on my  7 last trip.  8 MR. MACKENZIE:   Can I have the spelling for that, please?  9 THE TRANSLATOR: 585.  10 MR. MACKENZIE:  11 Q   And Where's that?  12 A   That's would be west of Moricetown.  13 Q   I take it you didn't obtain a permit to go hunting did  14 you?  15 A   No.  16 Q   No.  Are you aware that a permit is required to hunt  17 goats in that territory?  18 A   Yes, according to white man's law.  Yes.  In our law  19 we don't require a permit.  20 Q   So you feel the white man's law does not apply to you  21 as far as hunting is concerned?  22 A   Our ancestors never did have a white man's permit.  23 Q   So there's no need for you to obey the provincial  24 hunting regulations, is that what you say?  25 A   Our ancestors and their grandfathers from generation  26 to generation have never had permits and they've never  27 required permits and they went hunting whenever the  28 goats were fat enough to harvest, and then they went  2 9 out and they got what they needed and that's how my  30 grandmother and my fathers have taught me.  31 Q   So the provincial hunting regulations do not apply to  32 you, is that true?  33 A   No.  34 MR. MACKENZIE:   Yes.  Now, referring to Exhibit 224, please,  35 application for sustenance permit.  36 THE REGISTRAR:  It's tab 3 in the black book, My Lord.  37 MR. MACKENZIE:  38 Q   I beg your pardon, tab 3, in the black book, My Lord.  39 Mr. Mitchell, in that application you solemnly  40 declared that you would comply with the Wildlife  41 regulations.  Do you see that in paragraph 4?  I beg  42 your pardon, we're looking at the application for the  43 sustenance permit and I'm referring you to paragraph  44 4.  Do you see that?  45 A   Yes.  46 Q   Yes.  And in paragraph 6 you said "I make this solemn  47 declaration conscientiously believing it to be true." 3587  Do you see that, paragraph 6?  Yes.  But you don't comply with the regulations do you?  At this time, like I said, I was crippled.  I was  protecting my son.  What they do in case like this if  he didn't have my -- the permit, my son, if he shot a  moose with my pick-up, he's -- the government will  seize my pick-up too.  And that's what I didn't want.  That's why if I was healthy as today I'd go out and  shoot my own moose without a permit.  And you had your son John sign that application also  didn't you, Exhibit 224?  Yes.  And he agreed to abide by the regulations didn't he?  He agreed to protect our vehicles and guns.  Our guns  and vehicle cost us a lot of money.  We're poor people  not -- we're not rich like you guys.  I want to  protect that.  And did you tell John that he didn't have to follow  the law?  I didn't tell him that.  But you don't follow the law do you?  Like I said if I was healthy like I am I'd go out and  shoot moose.  :  Just a moment, please.  26 THE WITNESS:   On my trap line, trapping territory.  27 MR. RUSH:  My objection is this, that the question is worded in  28 a rather vague way, and although it might be  29 contextualized, I think the question ought to be more  30 fairly put, if this is what my friend wants to seek,  31 "You don't follow the law in respect of the Fish and  32 Wildlife regulations.".  33 THE COURT:  Well, we've already got his answer on that.  I take  34 it, Mr. Mackenzie, you're asking the witness these  35 questions with specific reference to hunting under  36 this permit aren't you?  37 MR. MACKENZIE:  Yes, My Lord, and under the Wildlife  38 regulations.  39 THE COURT:  But are you asking the question irrespective of this  40 permit?  41 MR. MACKENZIE:  Yes, My Lord.  42 THE COURT:  So this permit's got nothing to do with the context  43 of your question?  44 MR. MACKENZIE:  It's led up to my question, My Lord.  My  45 submission would be that this is part of the law in  46 British Columbia.  47 THE COURT:  Well, it seems to me that the witness has said what  1  2  A  3  Q  4  A  5  6  7  8  9  10  11  Q  12  13  A  14  Q  15  A  16  17  18  19  Q  20  21  A  22  Q  23  A  24  25 THE  COURT 3588  1 he does generally.  He has already admitted that this  2 was his application.  He's told us the circumstances,  3 but it's clear, isn't it, that he's not going to hunt  4 pursuant to this permit?  5 MR. MACKENZIE:  Yes, My Lord.  6 THE COURT:  Or at that particular time at all.  Now, where do we  7 go from there?  He said that he didn't tell his son  8 not to comply with the law.  Is there any area left  9 unexplored?  10 MR. MACKENZIE:  I won't press that, My Lord.  Thank you.  11 THE COURT:  Well, I'd like to press something else.  12 MR. MACKENZIE:  Yes, My Lord.  13 THE COURT:  Mr. Mitchell, why didn't your son John just apply  14 for a permit for himself?  Why did you have to make  15 the application?  16 THE WITNESS:   Because John he the only able boy, my son, to  17 shoot moose for me.  18 THE COURT:  How old was he at this time?  19 THE WITNESS:   Right now he's about 34.  20 THE COURT:  So in 1983 he was an adult.  Why wouldn't he just go  21 and get a sustenance permit without you having to sign  22 it?  23 THE WITNESS:   At that time John he was single and is staying  24 with me at my house.  25 THE COURT:  Does that make a difference about whether you get a  26 sustenance permit or not?  27 THE WITNESS:   Well, according to white man's rule it's supposed  28 to take one permit.  Like I said, I try to protect my  29 rifle --  30 THE COURT:  Well, I understand that you wanted to make sure he  31 had a permit if he's going to be using your guns and  32 your vehicle, but I still don't understand why he just  33 didn't go get a permit and go and shoot whatever moose  34 he could find?  35 THE WITNESS:   I shot one moose for one woman at Moricetown.  36 They had a sustenance permit, and they put my name on  37 it to shoot a moose for her, and that's how this one  38 works.  39 THE COURT:  But did you have any greater rights to a sustenance  40 permit than your son John?  41 THE WITNESS:   At the time when that — we got that permit I was  42 disabled.  4 3 THE COURT:  Yes?  44 THE WITNESS:   And then — and John was the only able bodied  45 person there to go hunting.  4 6 THE COURT:  Yes?  47 THE WITNESS:   And who was living with us and then he was 3589  1 employed part time in the village, so that is why he  2 was able -- he was allowed to go out and get the moose  3 for me.  4 THE COURT:  Are you saying that John, your son John, might not  5 have qualified for a sustenance permit by himself?  6 THE WITNESS:   Yes, because he was working.  I applied for it,  7 that's one moose.  Yes.  8 THE COURT:  Thank you.  Thank you, Mr. Mackenzie.  9 MR. MACKENZIE:  10 Q   And are you aware that white men can obtain sustenance  11 permits also?  12 A   No, not that I know of.  13 Q   Now, are you aware of the white man's hunting -- the  14 provincial hunting regulations are passed to protect  15 animal populations?  16 A   Yes, I'm aware of the white man's regulation and I  17 also know of the method, the lottery tickets that they  18 use, and when they go out in our territory all you see  19 is cow moose, you don't see hardly any bulls and  20 everybody goes out there, but when we go out we only  21 take what we need.  That's how we go hunt.  22 Q   And in the olden days in your ancestor's time there  23 were only Indian hunters there weren't there?  24 A   Yes.  25 Q   And now there are white hunters there also aren't  26 they?  27 A   Lots of them.  Yes.  2 8 Q   And you don't know how many animals the white hunters  29 kill do you?  30 A   One time I was going up to towards Equity Mines,  31 there's three vehicles that I met and they all had  32 moose horns on their -- in their vehicles and that was  33 one of the reasons I get my moose at least ahead of  34 time because all these white hunters get out there and  35 they're crazy. I don't want to get shot by them.  36 That's why I go ahead of them.  37 Q   And with more roads there are more hunters coming into  38 the territory aren't there?  39 A   Every year there's more hunters I think.  40 Q   And white hunters you say should obey the provincial  41 hunting regulations shouldn't they?  42 A   They have to obey it because they're white man.  43 Q   Yes.  Now, do you know about the caribou?  You  44 mentioned the caribou that used to live in Namox.  You  45 remember that?  46 A   Yes.  47 Q   And there was a large herd in the Telkwa Mountains in 3590  1 the 1960's wasn't there?  2 A   Yes, at one time a long time ago there used to be  3 caribou even right around the Moricetown area, and  4 what my grandfather had told me was that the reason  5 for -- one of the reasons for the caribou not -- that  6 have gone back way into the hills is because of the  7 train, possibly the train going by and the noise and  8 that's what drove them back.  And right at this time  9 around the Telkwa Range area there's a few caribous up  10 there.  11 Q   At Telkwa Range there used to be a lot of caribou  12 didn't there?  13 A   Yeah, my -- in my father's days.  Yes.  14 Q   And do you know that in 1965 there was a lot of  15 hunting of caribou in that area?  16 A   No, I don't know that.  17 Q   Do you know that the hunting in the 1960's almost  18 wiped out the caribou herd?  19 A   I didn't know anything about that because us we didn't  20 go up in that territory or place, the area you might  21 call Oonis.  And around the 1960's we were working and  22 the only area that we went to was in our own  23 territory.  24 Q   Do you know that the Telkwa Range area is now closed  25 to caribou hunting?  2 6 A   No, I don't know.  27 Q   Do you know that the Caspit area is now closed to goat  28 hunting?  29 A   No, I don't know that either.  30 Q   Do you know that the only hunting allowed in Caspit  31 for goats is bow and arrows?  32 A   Oh, yes, now maybe I can go hunting traditionally like  33 the old ways.  34 Q   And do you know the reason that the area was closed is  35 because too many animals were killed?  36 A  Around Bec'et K'esdiilih area the last time I was  37 there there was goats and in the mountain area about  38 approximately a hundred the last time I was there.  39 They sure didn't look like they were going to -- they  40 run out of goats then.  41 MR. MACKENZIE:  Do you have a spelling for that?  42 THE TRANSLATOR:  581.  43 THE WITNESS:  They must have killed them all off after.  44 MR. MACKENZIE:  45 Q   That was in early 1970 you were up there?  46 A   Yes.  47 Q   I'm instructed the area, the Caspit area, was closed THE  THE  THE  MR.  A  COURT  TRANS  COURT  RUSH:  9  10 THE COURT  11  12  13  14 MR. RUSH:  15  16  17  18 THE COURT  19  20  21  22  23  24  25  26  2 7 MR. RUSH:  28  29  30  31  32  33  34  35  3 6 THE COURT  37  38  39  40  41  42  43  44  45  46  47  3591  to goat hunting in 1974.  You don't know that though  do you?  No, I didn't know that.  :  What was the name of this location?  LATOR: 581.  :  581.  I wonder if my friend can advise whether he will be  calling evidence to support the suggestions placed  before the witness?  :  Well, that's another old fashioned theory isn't it  Mr. Rush, that you can't ask a question without  implying an undertaking to call evidence?  Hasn't that  theory been rather exploded?  Well, it was an old fashioned theory that I thought  that I was used to, but it would certainly assist the  plaintiffs if they were to know that such evidence was  going to be called.  :  Well, aren't there provisions in place which will  acquaint the plaintiffs with the nature of the  evidence being called by the defence?  I do not  subscribe to the view that every question, throw away  or otherwise, implies an obligation to call evidence.  If that were so, it might be a good rule because no  one would ask an awful lot of questions or we'd have  an enormous amount of relatively insignificant  evidence.  Well, at least in respect of some of these questions,  My Lord, there is opinion that is associated with the  answer and of course the defendants are required to  and have filed expert opinion reports, and of course  if they intend to file other ones we would like to  know that, and certainly Your Lordship has asked that  a summary or the report be filed by the defendants and  it's for that reason that I stand to inquire about  this matter.  :  Well, there are two parts to the question and one is  that it isn't encumbant upon cross-examining counsel  to put so much of his case to an opposing witness as  that will, in fairness, give him an opportunity to  answer what is going to be alleged in connection with  something of which he has particular knowledge.  The  other part of the rule, as I understood it, was you  couldn't make an assertion against a witness unless  you were prepared to call evidence on it, but I've  never understood how that rule could fit with the  collateral evidence rule that you could not call  evidence in relation to collateral matters and you 3592  1 were bound by the answer.  2 I don't think I'll impose or rule that Mr.  3 Mackenzie has assumed any obligation by these  4 questions, but I made as careful a note as I can that  5 the question is not evidence if the witness doesn't  6 adopt it, and so to the extent the witness says "I  7 don't know.", well, there is -- then there is no  8 evidence on the point anyway.  9 Mr. Mackenzie?  10 MR. MACKENZIE:  11 Q   Thank you My Lord.  You don't report your goat kills  12 to the Fish and Wildlife Branch do you?  13 A   No.  14 Q   You don't report your moose kills to the Fish and  15 Wildlife Branch do you?  16 A   No.  17 Q   Can you agree with me from your experience that if  18 there is too much hunting in an area the animals will  19 not come back?  20 A   If there is too much hunting they'll kill them off.  21 The animals will come back, sure, if there's  22 animals -- any animals to be coming back.  23 Q   Yes.  If there's too much hunting, you'll kill the  24 animals off won't you?  25 A   Yes.  26 Q   Yes.  So you have to regulate the hunting don't you?  27 A   Yes, in our own way like our grandfathers taught us,  28 same thing with fur-bearing animals.  29 Q   And that is intended to conserve the animals isn't it?  30 A   Yes.  31 Q   And you and the Wet'suwet'en chiefs want to conserve  32 the animals don't they?  33 A   Yes, Wet'suwet'en they all do.  34 MR. MACKENZIE:   No further questions, My Lord.  35 THE COURT:  Thank you.  36 THE WITNESS:   Can I have a couple questions?  37 THE COURT:  No, later you can, but not now.  I think we'll take  38 the adjournment now.  Ms. Koenigsberg, you can start  39 in a few minutes.  Thank you.  40 THE REGISTRAR:  Order in court.  Court will recess.  41  42  43  44  45  46  47 3593  1  2        (PROCEEDINGS ADJOURNED FOR MORNING RECESS)  3  4 I hereby certify the foregoing to  5 be a true and accurate transcript  6 of the proceedings herein to the  7 best of my skill and ability.  8  9    10 Tanita S. French  11 Official Reporter  12 (PROCEEDINGS RESUMED AT 11:30)  13  14 THE REGISTRAR:  Order in court.  Ready to proceed, my Lord.  15 THE COURT:  Yes, Miss Koenigsberg.  16  17 CROSS-EXAMINATION BY MS. KOENIGSBERG:  18 Q   Thank you, my Lord.  Mr. Mitchell, I would like to ask  19 you some questions about particular people and what  20 houses and clans they're in.  We've heard about your  21 grandfather, Jimmy Mitchell or Jimmy Michell, who was  22 your grandfather?  23 A  My grandfather, yes.  24 Q   Yes.  And was he in the House of Hagwilnegh?  25 A  All I know is he's Kiil wenii wet'en, that's what they  26 call him, Kiil wenii wet'en.  27 THE TRANSLATOR:  Kiil wenii wet'en, K-i-i-1 w-e-n-i-i  28 w-e-t-'-e-n.  29 THE COURT:  And was his name Mitchell or Michell?  30 A  Michell.  31 THE COURT:  Thank you.  32 MS. KOENIGSBERG:  33 Q   Is Kiil wenii wet'en the name of a house in  34 Wet'suwet'en?  35 A  All I know is -- all I know is that they're a group of  36 people in the house, and there's very few left.  37 There's only one left now, is Johnny David and Mabel  38 Samcritch.  3 9 THE COURT:  Johnny David and Mabel?  40 A  Mabel Sam.  41 MS. KOENIGSBERG:  Did you say Mabel Samcritch?  42 THE COURT:  C-r-i-t-c-h?  43 A   C-r-i-t-c-h, I think.  4 4 THE COURT:  Thank you.  45 MS. KOENIGSBERG:  46 Q   So that I understand you, as far as you know Jimmy  47 Michell was not in the House of Hagwilnegh? 1  A  2  3  4  5  6  7  8  Q  9  10  A  11  12  13  Q  14  15  A  16  17  18  19  20  Q  21  A  22  Q  23  24  A  25  Q  26  A  27  Q  28  A  29  Q  30  31  32  33  A  34  35  Q  36  37  A  3 8 MS.  KOENI  39 THE  TRANS  4 0 THE  COURT  41  42  43  44  A  45 THE  COURT  46  47  A  3594  All I knew was that my grandfather was Kiil wenii  wet'en, and whenever the Laksilyu are doing things in  the feasts they always help one another, and  Hagwilnegh, Wah tah k'eght, they all work together in  the feast hall.  That's all I knew when I was younger.  I don't know exactly how the Kiil wenii wet'en system  was structured.  Is there an English translation or meaning for the  word Kiil wenii wet'en?  I don't think there's any translation for Kiil wenii  wet'en in English, but the area where they were from  was around Dennis Lake area, towards MacDonald lake.  I'm sorry, did you say Dennis Lake area toward  MacDonald Lake?  And the name came from when -- the name derives from  the fish in the fall time after they spawn.  There's  dead fish all over down the creek in which they call  Keel, and that's where the name came from and that's  my grandfather's.  And Jimmy Michell was from the Laksilyu clan?  Yes.  And your father, Big Tommy Michell, he had the chief's  name, Misaloos?  Misaloos, yes.  And he was in the House of Namox?  House of Namox, yes.  And that's the Tsayu clan?  Tsayu clan, yes.  And Big Tommy Michell's son was Little Tommy Michell,  or was he -- what relationship -- let me ask you what  relationship was Little Tommy Michell to Big Tommy  Michell?  Little Tommy Michell is Big Tommy Michell's  brother-in-law.  And Little Tommy Michell, do you know what house he  was in?  He was in the House of G'enegh La yex.  L4SBERG:  Can we have the spelling for that?  LATOR:  399.  :  Miss Koenigsberg, forgive me for interrupting.  A  few minutes ago, Mr. Mitchell, you told us about the  Kiil wenii wet'en, and you said they were a group of  people in a house of which there were very few left?  Yes, that's right.  :  Did you have a particular house in mind, or are  there some of these people in several houses?  My -- in my grandfather's that's all I know about him. 3595  1 THE COURT:  Yes?  2 A   Kiil wenii wet'en.  3 THE COURT:  Yes?  4 A   That's all I know.  5 THE COURT:  Are there Kiil wenii wet'en in other houses?  6 A  All I knew was my grandfather was Kiil wenii wet'en  7 and Johnny David, whom I talked to quite often, is  8 Kiil wenii wet'en too, and I never found out what  9 house they were in.  10 THE COURT:  Sorry, Miss Koenigsberg.  11 MS. KOENIGSBERG:  12 Q   I'll just follow that up.  I was going to ask you if  13 you knew what house Johnny David was in, and are you  14 telling me that all you know is that he was in the  15 same group with your grandfather, the Kiil wenii  16 wet'en?  17 A   Yeah.  That's all I know, yeah.  18 Q   And you don't know if he was in the House of  19 Hagwilnegh?  20 A   No, I don't, no.  21 Q   Do you know what chief's name Little Tommy Michell  22 had?  Was he Skokumwasaas?  23 A   Yes.  24 Q   And do you know what house that's in?  25 A   G'enegh La yex.  26 Q   G'enegh La yex?  27 A   G'enegh La yex.  28 THE TRANSLATOR:  G'enegh La yex, 399, and Skokumwasaas, 233.  2 9 THE COURT:  2 32?  30 THE TRANSLATOR:  233.  31 MS. KOENIGSBERG:  32 Q   And you've told us about your half brother Lawrence,  33 Lawrence Michell?  34 A   Yes.  35 Q   Is it Mitchell or Michell for Lawrence?  36 A   You've got his name, Mitchell, yes.  37 Q   Mitchell?  What house is Lawrence in?  3 8       A   Gitdumden.  39 Q   Is that a clan, Gitdumden?  40 A   Clan, yes.  41 Q   Do you know if he's -- if he is a member of a  42 particular house in the Gitdumden clan?  43 A   Roy Morris' mother, Lucy, and Lawrence's mother, Mary,  44 are sisters, and they're in the same house.  That's  45 how he's my half brother.  4 6       Q   And Lawrence's mother married Tom?  47       A   Yes. 3596  1 Q   Is she in the House of Kweese?  2 A   Kweese.  3 Q   Do you know if she's in the House of Kweese?  4 A   Kweese, no.  5 Q   No?  Do you know what house she's in?  6 A  All I know is Gitdumden, and she would be Roy Morris'  7 aunt.  8 Q   Would she be in the House of Woos?  9 A  Around 1947, when she died, and I can't recall what  10 house she was in, it was all sisters are living around  11 Broman Lake area, and all I knew is that my father was  12 married to Gitdumden.  13 MS. KOENIGSBERG:  Okay.  Do you know a person by the name of  14 Martha Shorty?  15 MR. RUSH:  What's the spelling on that, please?  16 MS. KOENIGSBERG:  The spelling I have is S-h-o-r-t-y.  17 MR. RUSH:  Thank you.  18 A   No.  I don't know the name, no.  19 MS. KOENIGSBERG:  20 Q   Did you know of a person by the name of Old Sam?  21 A   I heard of Old Sam when I was a boy, that's all I  22 knew, I just heard of him.  23 Q   You heard of him?  Did you hear where he was from?  24 Did you hear of him in association with some place  25 where he was from?  2 6 A   I don't know where Old Sam came from, all I know is  27 he's Wet'suwet'en.  28 Q   Was Matthew Sam referred to as Old Sam, or would that  29 be a different person?  30 A   There's two -- there's two Matthew Sams; which one are  31 you referring to?  32 Q   Either one who might have been called Old Sam, if you  33 know?  34 A   No.  I don't know that.  35 Q   You've never heard the name Old Sam used to refer to  36 either Matthew Sam; is that right?  37 A   No.  38 Q   In paragraph 11 of your affidavit you refer to Dick  39 Naziel as a member of the House of Woos.  Do you  40 recall that?  41 A   Yes.  42 Q   Could he be in the House of Madeek?  43 A   Yes.  Dick Naziel is the brother to George Naziel, who  44 was Madeek, so they are of -- from the same house.  45 Q   Right.  Is it incorrect that he -- that when you have  46 him in the House of Woos it should be Madeek?  47 A  All I know is they're all Gitdumden, but I can't 3597  1 really tell you which house they're all from.  2 MS. KOENIGSBERG:  Thank you.  I'm going to turn to a different  3 subject now.  4 THE COURT:  Excuse me, Miss Koenigsberg, what paragraph is the  5 affidavit?  6 MS. KOENIGSBERG:  Paragraph 11, my Lord.  7 THE COURT:  Thank you.  8 MS. KOENIGSBERG:  9 Q   You told us about the Namox territory and your hunting  10 and trapping rights in that territory, and in the  11 course of telling us about that you told us that Namox  12 announced in the feast hall that you and your brother,  13 Billy would have hunting and trapping rights in  14 Namox's territory.  Do you remember that?  15 A   Yes.  In the 40's anyway me and my father and Billy  16 went trapping in the upper part of Namox's territory.  17 That's when he mentioned that we can go in there, me  18 and my brother Billy.  And my father's clan, me and  19 Billy were were Neg'edeld'es.  2 0 Q   And Namox announced that in the feast while your  21 father was still alive; isn't that right?  22 A   Yes.  23 Q   And strictly speaking, that would not be Neg'edeld'es  24 after your father died, in your rights; is that  25 correct?  26 A   In our rights, yes.  27 Q   I want to make sure you understand me.  Neg'edeld'es,  28 as I understand it, means that you have rights while  29 your father is still alive; is that correct?  30 A   Yes.  31 Q   And under Wet'suwet'en law your rights would end when  32 your father died; is that correct?  33 A   Yes.  34 Q   But Namox announced in the feast that your rights  35 would continue; is that correct?  36 A   That's right, yes.  37 Q   And is that -- that's different from the Wet'suwet'en  38 law at Neg'edeld'es, isn't it?  39 A  According to our law, yes.  40 Q   Is it sufficient in Wet'suwet'en law for a chief to  41 make an announcement in the feast hall in order to  42 change the law?  43 A   In my case, I'm from Kispiox.  44 Q   Yes?  45 A  And my father raised me in that territory, so he  46 invited me in there to stay there.  I can go hunt,  47 trap anytime. 1  Q  2  3  4  A  5  6  7  8  9  10  Q  11  12  13  A  14  Q  15  16  A  17  Q  18  19  A  20  Q  21  22  23  A  24  25  Q  26  27  28  29  30  A  31  32  33  34  35  36  37  38  39  Q  40  41  42  A  43  Q  44  45  46  47  A  3598  Yes.  But Namox, by giving you permission and making  an announcement in the feast hall, changed the  Wet'suwet'en law, did he not?  Yes.  I was raised with my father in trapping and  hunting within the area, and knowing that the old ways  a good hunter is always invited, and knowing that I  wasn't going to be going back to Kispiox, so that was  why they asked me to and showed me the territory, and  that is how I know the boundaries and the territories.  Do you have rights to hunt and trap in other  territories of houses of which you are not a member  other than Namox?  Yes.  And do you have those rights for instance in the  territory of Knedebeas?  Yes.  And are those the same rights that you have on Namox's  territory?  The same rights, yes.  And it's not just that you have permission to go once  or twice, but that you have the right to hunt and trap  there for your life?  In Knedebeas territory in the 60's Christian Holland  announced that I could go there.  And that's different from the Wet'suwet'en law where  you're allowed to hunt and trap in a territory where  you're not a member of the house while your father is  alive.  Your rights are different from that, aren't  they?  It is true that I don't have rights there in  Wet'suwet'en laws, but the situation, the way it was,  there was exceptions made, and Christian Holland for  instance, she told me that her grandchildren, who are  all girls, won't be able to utilize the territory  fully, and I as a hunter and trapper, she had told me  that I would be allowed to use it so in the future the  male grandchildren may be able to learn from me,  and -- learn from me and I would be teaching them.  Now, I would like to ask you about some other evidence  that you gave about a gathering place at Aldermere.  Do you remember talking about that?  Yes.  And you said that there was a village at or near  Aldermere where people gathered in the olden times as  they came from trapping and hunting and were going to  fishing; do you remember that?  Yes. 3599  1 Q   Did you mean that at Aldermere there was a permanent  2 village, or did you mean there was a place of  3 gathering for approximately a week while people  4 gathered before they went onto places where they  5 fished?  6 A   It's just a place where they gathered.  There's some  7 coming in from Telkwa River area, some from Morice  8 River area, Sam Goosley area, Maxan Lake area.  They  9 all gathered there.  That's -- you know, that's after  10 everybody gathers then they start going towards  11 Moricetown or Hagwilget, wherever they're going to.  12 Q   And I believe, if I understood you, you said that the  13 first persons that arrived at Aldermere would wait for  14 the others to come from the territories?  15 A   Yeah.  16 Q   Is that right?  17 A   Yeah.  They all would.  18 Q   And they would all go to their various fishing  19 villages?  20 A   Yes.  21 Q   And some might go to Moricetown and some might go to  22 Hagwilget; is that correct?  23 A   Yes.  24 Q   Why would they wait for all of the other people to  25 come from the territories?  26 A   They would gather there to -- after a long winter they  27 gathered so they would meet, and then one of the other  28 reasons is that if when they gather sometimes if there  29 should be one family missing, and then they would know  30 that something has happened to them, or maybe they  31 might have been killed off, or because at that time  32 sometimes there would be war parties coming from the  33 Nuu'tsenii area, and then they would know something  34 has happened to them.  That is why they gathered  35 there.  36 MS. KOENIGSBERG:  The Nuu'tsenii, is that N-u-t-s-e-n-i?  37 THE TRANSLATOR:  311.  38 MS. KOENIGSBERG:  211?  39 THE TRANSLATOR:  3.  4 0 MS. KOENIGSBERG:  41 Q   311?  You also told us about using the goat meat, and  42 you told us that today you use the goat meat but you  43 don't use the goat skin.  Do you remember that?  44 A   Yes.  45 Q   Your ancestors, you told us, used the goat skin for  46 rugs or mattresses; is that right?  47 A  A long time ago our ancestors all utilized all the 1  2  3  4  5  6  7  Q  8  9  10  A  11  12  13  Q  14  15  16  17  A  18  19  20  21  22  23  24  25  Q  26  27  28  29  A  30  31  Q  32  33  34  35  36  A  37  38  Q  39  A  40  41  Q  42  43  44  45  46  A  47  Q  3600  hides, skins for clothing.  That was before the white  man had come, but since the white man clothing came  into the area we rarely used goat skin.  The old times  they used bear skin, moose skin, and all the other  furs, but now we copy the white man, we dress and we  use the white man's clothes.  And as I understand you, you don't use the goat skin  for rugs or for mattresses either; is that right,  today?  Now, this time -- at this time I know of one chief who  uses the goat skin, and his name is Mutt, and -- but  myself at this time I don't use the goat skin.  I would like now to talk about fishing at Moricetown.  You told us that after the fish ways were put in about  1951 there were no more spring salmon, or very few; do  you recall that?  After the -- after the fish ladder was put in -- at  that time was plenty fish, and that fish ladder would  go up and then later years, four or five years later,  hardly any fish going up, so it was all the species,  coho, sockeye.  Why they put that fish ladder in was  that the pink salmon, they want the pink salmon to go  further upstream, that's why they put the fish ladder  in, otherwise all the species go right through.  I understood your earlier evidence, Mr. Mitchell, to  be that you particularly noticed that there were no  spring salmon.  Are you including the spring salmon in  what you just said?  Just very few coming up now, yes.  There's some there,  but not as plentiful as before.  I'm instructed that within a year after the fish  ladders went in in 1951, that is by the 1952 season  for spring salmon, there were the same if not higher  levels of spring salmon going through the canyon  there.  Is that different from what you understand?  '52 and '53 there's still lots of spring coming  through, but after say '60's there's hardly any.  In the 1960's?  In the 60's — after '57, '60's, that's when  everything started to go down, all species.  So now if I understand you, you're not saying that as  soon as the fish ladders went in at Moricetown that  there were no more or very few spring salmon, it was  approximately nine to ten years later that you noticed  a decrease; is that right?  Yes.  A lot of decrease after that ladder was put in.  Yes.  Do I understand you, though, that would be nine 3601  to ten years after the fish ladder went in?  I would say about six, seven years after.  It was put in in 1951?  '50.  1950?  You've told us that you used the Namox's  fishing sites at Moricetown for fishing?  Yes.  And Kweese?  Kweese, yes.  And how many sites did Namox have at the Moricetown  Canyon when you were using it?  All I know is that one site I recall, Ooyuk'een.  All right.  Is that the one you say was destroyed by  the ladder?  Yeah.  That was completely destroyed, yes.  Do you know if Namox had any other fishing sites at  the canyon?  That's all I know, that's the only way I have it, I  can remember.  Let me understand.  Do you know if he had more, even  though you only used one?  The only one I knew was Ooyuk'een.  As a child or a  teenager I fished, and that's where I got my fish  from, because we had a smokehouse not too far away  from there.  Generally speaking, when -- the fishing sites in the  Moricetown Canyon, would you use different ones at  different times to correspond with the high water and  the low water?  It's hard to go fishing when the water is high, so  just when the water is flowing over the rock we fish  it Ooyuk'een, and when the water is lower we go to  C'itil tl'uk or Dee g'iit k'et for a fishing site.  We  set up a platform.  jSBERG:  Okay.  Could we have the spellings for the  Namox fishing site, which I believe is the first one  he mentioned, and Kweese's fishing site, which is the  second one?  Kweese's fishing site is C'itil tl'uk.  40 THE TRANSLATOR:  The ones that he mentioned, C'itil tl'uk —  41 THE COURT:  Sorry, which one is 502?  42 THE TRANSLATOR:  Ooyuk'een and C'itil tl'uk.  43 MS. KOENIGSBERG:  I'm sorry, do we have a different one as  44 between the translator and the speller?  Are we  45 talking about two different sites or is there a  46 different pronunciation for the one site?  47 THE TRANSLATOR:  The last one he gave is Dee g'iit k'et, 441.  1  2  A  3  Q  4  A  5  Q  6  7  A  8  Q  9  A  10  Q  11  12  A  13  Q  14  15  A  16  Q  17  18  A  19  20  Q  21  22  A  23  24  25  26  Q  27  28  29  30  A  31  32  33  34  35 MS.  KOEI  36  37  38  39  A 3602  1 MS. KOENIGSBERG:  441?  And that is Kweese's fishing site.  2 THE COURT:  Kweese is 441.  3 MS. KOENIGSBERG:  Yes.  4 THE COURT:  Thank you.  5 MS. KOENIGSBERG:  6 Q   Since the fish ways were put in have you yourself or  7 have you seen persons standing on the fishing ladder  8 or fish way as a site to fish from?  9 A  At the fishing site C'itil tl'uk, near the fish  10 ladder, at bottom end of it they stand on the rock  11 above it, and that's where they fish from, and on the  12 west side of the river they fish for hump backs near  13 the opening or the bottom end of the fish ladder.  14 They use dip nets to dip for hump backs, and they just  15 take out the good ones and then they throw the rest  16 back in, or else they let them go upstream.  17 Q   You've not seen anyone stand right on the fish ladder  18 and fish?  19 A   Yeah.  That's where they stand, on the end of the fish  20 ladder when they use that dip net, yes.  21 Q   And have you seen or done it yourself, use the fish  22 way to walk along to go from site to site?  23 A  What, you expect us to fly over it?  Of course we walk  24 on it to go across it.  25 Q   Thank you.  In 1984 you were a band councillor?  26 A   Yes.  27 Q   And do you recall signing a permit or a licence for  28 the Moricetown Band members to fish at Moricetown for  29 food?  30 A  A long time ago we were -- I forget the year, we were  31 discussing a blanket fishing permit, however reluctant  32 we were to do that.  33 Q   Mr. Mitchell, I'm showing you a fishing licence that's  34 our document number 5139.  Is that your signature on  35 it?  36 A   Yes.  37 Q   And is that a licence for the Moricetown Band to fish?  38 A   Yes.  That's what it says there.  39 MS. KOENIGSBERG:  Thank you.  Could that be marked as the next  40 exhibit.  41 MR. RUSH:  Do you have the original of that?  42 MS. KOENIGSBERG:  I don't know if we do.  If you would like to  43 see it --  44 MR. RUSH:  Yes, I would.  I would like the original placed as an  45 exhibit.  46 MS. KOENIGSBERG:  Yes.  If it's available we will do that.  47 THE REGISTRAR: Exhibit 205. 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  MS.  THE  MS.  MS.  THE  MS.  3603  EXHIBIT 205 - Fish licence #5139 dated August 21,  1984  KOENIGSBERG:  You've had permits to fish for food, food  permits all through the 1950's, didn't you?  COURT:  Are you asking the witness personally?  KOENIGSBERG:  Q   Yes.  A  Well, I forget how long ago it was when we had these  permits and what -- the fish warden was living right  there at the canyon, and what he had told us was that  the reason they were giving us permits is so that  somebody else won't come down there and fish.  Q   Yes.  And you would report the number of fish that you  would take in a given season.  Do you remember that;  so many spring, so many coho?  A   I never counted how many fish I had taken, but only  knew that we had enough for the winter, but today we  only took 10 springs and about 25 sockeye, which my  wife smoked and jarred some.  Q   I'm instructed that in 1957 you, Mr. Mitchell, were  able to take 71 springs.  Does that sound right?  A   I don't know how you know I got 71, but when we get a  large number of fish we share it with the other  villagers, like Emma(?) and them, and we help one  another in that way.  Q   Yes.  But would that be a large -- for whatever  purposes, would that be a large number of fish for you  to catch in the 50's of spring?  A   Seventy-one fish?  KOENIGSBERG:  Yes?  COURT:  No, 71 spring?  A   Oh, spring.  Yes, sounded right.  That would last for  one family.  KOENIGSBERG:  Q   But do you recall catching approximately that many  spring salmon in a season that you shared with other  members of your family?  If I caught that much I share it with my  mother-in-law.  That would be a lot of fish to eat yourself, wouldn't  it?  I can't eat that myself for sure.  But you might actually catch -- do you recall catching  that many?  A   Like I said, I never counted them.  A  A  Q 1  Q  2  3  A  4  Q  5  A  6  Q  7  3604  Did you work for the Sunnyside Cannery at the coast in  1947?  Yes.  Yes?  Yes.  And do you recall if your brother Billy also worked at  the coast?  8 A   No.  9 MS. KOENIGSBERG:  Do you know if he worked for North Pacific  10 Cannery?  11 THE COURT:  I'm sorry.  Did the witness work or brother Billy?  12 MS. KOENIGSBERG:  13 Q   I'm sorry, brother Billy.  Do you know if he worked  14 for the North Pacific Cannery?  15 A  What year?  16 Q   1954?  17 A   If he did I don't know, no.  18 MS. KOENIGSBERG:  Those are all my questions.  Thank you, Mr.  19 Mitchell.  20 A  May I ask —  21 THE COURT:  I'm sorry.  22 A  Well, I want to ask a question.  23 THE COURT:  Well, why don't you wait until you see what Mr. Rush  24 asks you?  25 A   Oh, okay.  2 6 THE COURT:  Are you going to be a few minutes, Mr. Rush?  27 MR. RUSH:  Yes, I am.  2 8 THE COURT:  All right.  I think we'll adjourn until two o'clock.  2 9 Thank you.  30 THE REGISTRAR:  Order in court.  Court will adjourn until 2:00.  31  32 (PROCEEDINGS ADJOURNED AT 12:25)  33  34 I hereby certify the foregoing to be  35 a true and accurate transcript of the  36 proceedings herein transcribed to the  37 best of my skill and ability  38  39  40  41    42 Graham D. Parker  43 Official Reporter  44 United Reporting Services Ltd.  45  46  47 3605  1  2  3  4  5  6  7  8  9  10  11 (PROCEEDINGS RECONVENED PURSUANT TO LUNCH RECESS)  12  13 THE REGISTRAR:  Order in court.  Calling Delgamuukw versus Her  14 Majesty the Queen to the bar, My Lord.  15 THE COURT:  Mr. Rush.  16  17 RE-EXAMINATION BY MR. RUSH:  18 Q   Yes.  Thank you, My Lord.  Madam registrar, would you  19 please place before Mr. Mitchell the black book of  20 documents, the first large book, and I'd ask Mr.  21 Mitchell if you would look at tab number 1.  Mr.  22 Mitchell, what is contained in tab number 1 is the  23 genealogy of the House of Waiget, clan Gisk'aast,  24 village of Kispiox.  You told Mr. Mackenzie and the  25 court that you were a member of the House of Wii  26 seeks.  Now, I want to ask you if you can tell us who  27 holds the name of Wii seeks?  28 A  Who holds Wii seeks now?  29 Q   Yes?  30 A   It's Ralph Michell.  31 Q   Ralph Michell.  All right.  I just want to ask you if  32 you'd look on page number 3 and it shows a Ralph  33 Michell as Wii seeks; is that right?  34 A   Yes.  35 Q   All right.  Now, previous to Ralph Michell was it Pete  36 Muldoe that held the name of Wii seeks?  37 A   I don't know too much about that.  I think Pete might  38 have held that name before.  39 Q   Okay.  Mr. Mitchell, will you look please at page 1 of  40 the genealogy and you'll see that Pete Muldoe's name  41 is located on page 1.  Do you see it there?  42 A   Yes.  43 Q   And he is there holding the name it says of Gitludahl.  44 Is that the name you understand him to hold today?  45 A   That's all I understand him.  Yes.  46 Q   And now I want to ask you if you'll also look please  47 at page 3 again and you see on page 3 Elsie Muldoe. 3606  1 Do you see the name there?  2 A   Yes.  3 Q   Elsie is related to you is she?  4 A   That's my aunt.  5 Q   Okay.  And it's there her name is the name of  6 "Waiget", do you see that?  7 A   Yes.  8 Q   And finally, Mr. Mitchell, would you please look at  9 tab 7 -- excuse me, page 7.  Do you know Lloyd  10 Morrison?  11 A   Yes.  12 Q   Okay.  And under on page 7 there's a name "Waiget"?  13 A   Yes.  14 Q   Do you know Lloyd Morrison to hold the name of Waiget?  15 A   I don't know.  I don't know about that.  I don't know  16 too much about them.  17 Q   All right.  Thank you.  Okay.  All right.  Thank you.  18 Now, Mr. Mitchell, had you -- before this genealogy  19 was shown to you in court had you ever seen it before?  2 0       A   No.  21 THE COURT:  I don't have it marked as an exhibit, is it?  22 MR. MACKENZIE:  No, My Lord.  23 THE COURT:  No, it wasn't marked.  2 4 MR. RUSH:  25 Q   Now, Mr. Mitchell, one of the questions that was asked  26 of you by Mr. Mackenzie was if the reason that you  27 were out trapping was to sell the furs that you  28 trapped, and you said to him it was not only that, but  29 it was meat -- for meat for food too.  Do you remember  30 saying that to him?  31 A   Yes.  32 Q   My question is, do you also distribute this meat in  33 any particular way, the meat that you get from the  34 trapping?  35 A   Yes.  When we go trapping we, like in beaver, we trap  36 beaver for the fur and then we also trap the beaver  37 for the meat and we make it into Tsa k'ayh and then we  38 give that to be used in potlatch.  And I used to give  39 it to my father and he in turn would give it to other  40 people and that's so -- that's how we been taught to  41 share.  42 MR. RUSH:   The word Tsa k'ayh, Mr. Mitchell?  43 THE TRANSLATOR: 358.  44 MR. RUSH:  Thank you.  45 THE COURT:  Sorry?  46 THE TRANSLATOR: 358.  4 7 THE COURT:  Thank you. 3607  MR. RUSH:  Now, you also told us in your cross-examination that  your brother, and I think you meant Billy Mitchell,  traps on the Namox territory and you said that  somebody recently drove him down or has driven him  down to go hunting.  When Billy is down in the  territory either trapping or hunting, how long does  Billy stay there at one time?  MACKENZIE:  My Lord, I don't — I'd object to that.  I don't  see how that arises out of my cross-examination.  COURT:  Well, I don't think that I can deal with that  objection without considerable help from counsel.  I  don't have a recollection of the specifics of the  evidence of which I heard quite a great deal regarding  Billy's -- brother Billy's trapping exploits.  Yes.  Well, the context was that Billy Mitchell  stayed in Houston and that somebody drove him down to  hunt in the territory.  I recall that.  And I thought there was an implication that it could  have been done on a daily basis or it could have been  done every other day or every other week.  That was in cross-examination was it?  Yes, it was.  And I was trying to illicit from the  witness if he knew the duration of the time that Billy  Mitchell was in the territory.  Mr. Mackenzie, are you able to assist in that regard?  MACKENZIE:  My Lord, there is no mention in that line of  questioning about the time that Billy spent on the  territory and no discussion at all about Billy -- no  questions about Billy being on the territory.  That,  as I understand it, was simply the question of driving  down the mine road to get to the territory.  COURT:  I have a note that in cross-examination there was  evidence about Dan Michell could put Billy down to  another part of the territory.  You say, Mr.  Mackenzie, that the only evidence you asked about was  whether Billy ever drove on the mining road?  MACKENZIE:  My Lord, with respect to Billy Mitchell I did  ask a question about Billy using the mine road and I  asked a question about Dan Michell as the caretaker  and the person of authority moving Billy --  COURT:  Yes.  MACKENZIE:  -- to -- and giving orders or instructions to  Billy.  RUSH:  There was a series of questions, My Lord, it was very  early in the cross-examination, by Mr. Mackenzie,  which it -- you might recall an objection I made  1  2  3  4  5  6  7  8 MR.  9  10 THE  11  12  13  14  15 MR.  16  17  18 THE  19 MR.  20  21  22 THE  2 3 MR.  24  25  2 6 THE  2 7 MR.  28  29  30  31  32  33 THE  34  35  36  37  3 8 MR.  39  40  41  42 THE  4 3 MR.  44  4 5 MR.  46  47  RUSH:  COURT  RUSH:  COURT  RUSH:  COURT: 1  2  3  4  5  6  7  8  9  10  11  12  13  14 THE COURT  15  16  17  18 MR. RUSH:  19  20  21 THE COURT  22  2 3 MR.  24 THE  25  26  27  28  29  30  31  32  33  34 MR.  35  36  37  38  39  40  41  42  43  44  45  46  47  RUSH:  COURT  RUSH:  Q  A  3608  concerning irrelevance of certain evidence regarding  the use of the Bulkley Valley Hospital.  It was  shortly after that that I asked or that was -- a  question was asked about where Billy Mitchell stayed  and it was said that he stayed in Houston, and then  the evidence was offered somebody drove him down to go  hunting.  And then he was asked well, does he come  back to Moricetown frequent -- does he come back to  Moricetown.  He said he comes back lots of times.  And  what I was trying to do is to clear up what I thought  was an ambiguity in the evidence about the frequency  of which or at least the duration during which he  stays in the territory.  :  Well, I have a note that he in 1962 was in Smithers  Hospital, at the Bulkley Valley Hospital.  He talks  about his children, being at the church, then he said  he --  It was right after that, My Lord.  It was immediately  after the questions concerning his participation in  the church.  :  I have a note that he -- that "My brother Billy  lives in Houston."  Yes, I have it.  Yes, that's it.  :  "He drives to Goosley Lake by the mining road.  He  stays at Moricetown with friends.  He attends feasts."  And then we went onto tab 9 which dealt with logging  roads.  All right.  I think that I will allow the  question.  It may round out the evidence.  Certainly  the fact that he lives in Houston doesn't say that he  doesn't -- that he goes there every night and he  doesn't stay on the property for any particular period  of time, but I think it's close enough that it might  be clarified.  Mr. Mitchell, are you able to say how long your  brother Billy Mitchell stays in the territory when he  goes down to hunt and trap on those occasions when he  traps on Namox's territory?  My brother Billy when he goes trapping up in the Namox  territory I'm not sure how long he would stay,  sometimes probably a month when he's trapping from the  cabin.  But this last Christmas he was trapping in the  northern end of the territory and that's when Bill  Holland would drive him up there from Houston, but  since then Dan has instructed and has moved him over  to the cabin, so now he probably would stay there and  I don't know how long he would stay there, probably be 1  2  MR.  RUSH:  3  4  5  6  7  8  9  THE  REGIS1  10  MR.  RUSH:  11  Q  12  13  14  A  15  Q  16  17  A  18  19  20  MR.  RUSH:  21  22  23  THE  COURT  24  MR.  RUSH:  25  THE  COURT  26  27  28  MR.  RUSH:  29  Q  30  31  32  33  34  A  35  Q  36  37  A  38  THE  COURT  39  40  41  MR.  RUSH:  42  43  44  45  46  47  THE  COURT  3609  a month at a time.  Now, I would like to have placed before Mr. Mitchell  the blue book of documents.  It's the book of  photographs.  I'm sorry, I said documents, I intended  to say photographs.  The blue book of photographs.  I'm sorry, this is in the Wah tah k'eght -- let me  just get this clear.  I may have it wrong myself.  Excuse me, I do, it's the green book.  ?RAR:  The green book.  I'd like to ask you to look at tab 13, Mr. Mitchell,  it's Exhibit 233, and this I think you identified as  an ore concentrate truck from the Equity Silver Mine?  Yes.  Can you tell us, Mr. Mitchell, do you know what kind  of minerals are mined at the Equity Silver Mine?  I imagine they would be mining silver, that's why they  call it the Equity Silver Mine.  I don't know what  else they would be taking out of there.  And did you know, Mr. Mitchell, that in 1986 the  mine generated over 22 million dollars in its  operations?  :  Is that not a slightly leading question, Mr. Rush?  I guess it is slightly, My Lord.  Yes.  :  It would be no less leading I suppose if you  suggested one dollar, but it sounds like it's more  leading than one dollar would be.  You were asked questions about Equity Silver Mine and  its location, Mr. Mitchell, and you indicated during  your cross-examination that you had understood that  Emma Michell had written letters to Equity Silver Mine  complaining about the territory.  Do you recall that?  Yes.  Do you recall or do you know what complaints she made  about Equity Silver Mine?  She had told me that she had written letters.  : Mr. Rush, I'm sorry to interrupt, but as this is  re-examination should it not be kept in reasonably  close limits?  This is obviously hearsay.  Well, yes, as was the initial question, My Lord, and  the answer that was given concerned complaints that  she had made and I agree that it was hearsay, and I  thought it was hearsay at the time, but I think that  now that the hearsay is in at least he'd be able to  say what the complaints were.  :  Well, I don't remember what the original question 3610  1 was.  2 MR. MACKENZIE:  My Lord, my friend could assist us by giving us  3 the citation for these questions.  That would be of  4 some assistance.  5 THE COURT:  Well, I remember something vague about it.  I  6 suspect that I made no note about it because -- if it  7 was as Mr. Rush said it was.  Can you remind me what  8 the question was, Mr. Rush?  I suppose it would be  somewhere in the area where we marked Exhibit 233?  RUSH:  No, it was a little later.  It was in reference to  Exhibit 185 and there was a series of questions asked  about the distance that the territory was in relation  to Houston and then to Moricetown, and then she was  asked about whether she, Emma Michell, was Mr.  Mitchell's aunt and he said that it was Big Tommy  Michell's sister and he said she is next to Namox and  lower rank than Namox, and he indicated that Emma  Michell trapped throughout the area.  COURT:  Do you have a date for this?  RUSH:  Yes.  MACKENZIE:  Yes.  It's on February 11, Volume 56, My Lord,  page 3404.  COURT:  Well, I don't have the books here.  MACKENZIE:  That was the series of questions I was asking  about the various chiefs, whose maps I later used, and  My Lord Your Lordship will recall I asked a series of  questions about Emma Michell, and then Dan Michell,  and then Sylvester Williams, then Leonard George, then  the hereditary chiefs.  And My Lord, that was Thursday  afternoon.  I think it may have been before the break.  RUSH:  That's right.  MACKENZIE:  Thursday — last Thursday afternoon just before  the break.  Well, I have a note about Emma Michell is my aunt,  Lii luus is her name.  She is next to Namox, a very  important person in our house.  She has visited and  trapped in Sam Goosley Lake area.  She has  knowledge --  MACKENZIE:  Yes, My Lord.  COURT:   -- about the territory.  And that's all I've noted  about it.  RUSH:  Perhaps you did purge her notes of the  cross-examination.  COURT:  If that's where it appeared I didn't make a note of  it.  RUSH:  Well, the question was at page 3404 at line 19.  9  10 MR.  11  12  13  14  15  16  17  18  19 THE  2 0 MR.  21 MR.  22  23 THE  2 4 MR.  25  26  27  28  29  30  31  32  33  34  35  36  37  38  3 9 MR.  4 0 THE  41  42 MR.  43  44  45  4 6 MR  MR.  MR.  THE COURT  THE  47 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. RUSH:  THE  MR.  COURT  RUSH:  Q  A  Q  A  Q  A  3611  She has also written to the logging company  to get the old cabin at the east end of  Goosley Lake?  She told me that.  Yes.  And are you aware that she has written  letters to Equity Mines complaining about  conditions on the territory?  She told me she had been writing to them, I  don't know what responses she get out of  that."  So my submission, My Lord, is that is not a  question of hearsay, it's simply an indication of Emma  Michell's interest in the territory and her knowledge  of the territory and of course that went on to ask  whether she knew the boundaries of the territory.  :  If Mr. Mackenzie had said "What did Emma Michell  say:  and there'd been no objection and I had allowed  A  the question, you could certainly ask what else did  she say, but I don't think unless she's asked  specifically that the rule I've stated would apply to  what the witness has said, but we're one step further  because here it's hearsay.  I don't think it's proper  re-examination, Mr. Rush.  What she complained about  seems to me not to be relevant unless we know what she  said and only she, it seems to me, could give that  evidence.  Well, My Lord, I just think that if it's important to  test her -- what her knowledgability is about the  territory through asking a question of this kind, then  it ought to be equally as important to test her  knowledge to know what she wrote about.  But I accept  Your Lordship's ruling there.  :  Thank you.  The question was asked of you, Mr. Mitchell, about a  fire which had occurred on the Sam Goosley -- or a  fire which had occurred in 1958, and you were directed  to a tab, and it's tab 16, My Lord, of the green book.  Do you have the photograph book in front of you?  Yes.  And I think you said, Mr. Mitchell, that your brother  had fought the fire which took place on the ridge in  the background of tab 16, which is Exhibit 234, and  there were other fire-fighters who came from  Moricetown.  Do you remember saying that?  Yes. 3612  1 MR. RUSH:   I wonder, do you remember any of the names of the  2 other fire-fighters from Moricetown?  3 MR. MACKENZIE:  Well, My Lord I —  4 THE COURT:  Well, I think that's a matter that arose in the  5 cross-examination.  I have a note that he did say what  6 Mr. Rush has said, that the forest service fought the  7 fire with people from Moricetown.  He doesn't know if  8 it's been replanted, but small pine is growing up  9 there now.  Yes.  You may answer that question.  I'm  10 sorry?  11 THE WITNESS:   My brother Lawrence, Lawrence Mitchell.  That I  12 know he's fighting fire over there and there's --  13 THE COURT:  Anyone else?  14 THE WITNESS:   Roy Morris.  Pretty hard to remember them all,  15 but they had a bus going from Moricetown to this area  16 fighting fire because it was a big fire in there.  17 They stayed there two weeks at a time.  They come back  18 and then the next bunch would go in, that's all I  19 know.  2 0 MR. RUSH:  21 Q   Thank you.  Yes, now I wonder if madam registrar could  22 place Exhibit 211 in front of Mr. Mitchell.  I think  23 I'm done with that, Mr. Mitchell.  Thank you.  24 Now, Mr. Mitchell, you were shown Exhibit 211 by  25 Mr. Mackenzie and he asked you if Marvin George showed  26 you the northern boundary of Caspit and you said that  27 Marvin George showed you Exhibit 211, and then you  28 said that Sylvester told you about it.  And my  29 question to you is did Marvin George have anything to  30 do with the preparation of Exhibit 211, the document  31 you're holding in your hand?  32 A   I don't know that.  No.  33 MR. RUSH:   Was it Mr. Overstall who assisted in drawing the  34 lines on that map for you, that is to say, the plastic  35 overlay?  36 MR. MACKENZIE:  I think that was covered in examination in  chief, My Lord.  WITNESS:   Yes. That's this map that I have.  Richard  Overstall helped me with that.  THE  37  38  39  4 0 MR  41  42  43  44  45  46  47  RUSH:  Q  A  Right.  My question, Mr. Mitchell, is was the northern  boundary of Caspit on Exhibit 211 told to you by  Sylvester Williams or by Marvin George?  Northern boundary right by Lots' wenii, north side  of -- north-east side of Lots' wenii.  That one  Sylvester told me that there is a ridge starts here  right down to this end here, eastern end of that.  He MR. RUSH  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  2 8 THE  2 9 MR.  30  31 MR.  32 THE  33 MR.  34  35 THE  3 6 MR.  37 THE  38 THE  3 9 MR.  40  41  42  43  44  45  46  47  A  Q  A  3613  said that was a boundary.  Sylvester William told me  that when we was camping here at Kennedy Lake.  All right.  Now, you were asked some questions this  morning by Mr. Mackenzie about hunting and in  particular hunting moose, and you indicated to Mr.  Mackenzie that you go out hunting before the white man  starts hunting.  Do you remember that?  Yes.  My question to you is what determines or how do you  determine yourself when you go out?  Yes.  My father -- even at my father's time these  hunters were shooting one another, so as a result of  that he warned me about these hunters, and he also  instructed me to go out hunting before these crazy  people come around.  And even right to this day it's  happening.  Even right around in the Smithers area  people are getting shot and you hear it on the radio  and TV, you hear about people getting shot while  hunting down in the Okanagan, and that is one of the  reasons why I still follow my father's warnings  because these people go wild out there.  All right.  Thank you.  Mr. Mitchell, you were shown  a sustenance permit, what is called a sustenance  permit, which is Exhibit 234, which is at tab 3 of the  defendant Province's black document book.  Could that  be placed in front of Mr. Mitchell, please?  Thank  you.  Was this not put to the witness in chief?  MACKENZIE:  Yes, My Lord.  The question was put in chief, My  Lord, not the document.  The document was put before the witness.  All right.  wanted you to look at paragraph  You see "number of dependents"?  Rush, what's the tab number?  COURT:  RUSH:  COURT  RUSH:  COURT  RUSH:  COURT:  WITNESS  RUSH:  Q  Mr. Mitchell, I  number two there.  I 'm sorry, Mr.  This is tab 3.  Thank you.  Yes.  The number of dependents, if any, it says "4" there?  A   Yes.  Q Are these your dependents?  A Me, my wife and four boys.  Q   Okay.  John Mitchell you have said is your son.  Does  he have dependents?  A   He stayed with me.  Q   He was staying with you at that time? 3614  1 A   Yes.  Yes.  2 MR. RUSH:   All right.  You told the court that the reason that  3 you obtained the sustenance permit was to play it  4 safe, I think you said, and then you went on to say "I  5 didn't want the government to seize the pick-up.".  6 Can you tell His Lordship what did you mean by that?  7 MR. MACKENZIE:  My Lord, before the translation is made, in  8 chief at page 3324 Miss Mandell asked Mr. Mitchell  9 "What was your thinking in having John get a permit?",  10 and Mr. Mitchell answered, as Mr. -- this is in chief,  11 My Lord.  Mr. Mitchell answered, as Mr. Rush has said,  12 "So I play it safe for him if I get a permit."  13 MR. RUSH:  Yes.  And that was recanvassed in cross-examination,  14 and Mr. Mitchell then went on to say what I had just  15 said, that he didn't want the government to seize the  16 pick-up.  And I think that it -- there is some logic  17 to having him explain what he meant by that.  18 THE COURT:  Well, there's logic in it, but it's clearly  19 splitting the case isn't it?  I understand precisely  20 what happened here.  I really don't think you need to  21 be troubled by it, Mr. Rush.  22 MR. RUSH:  All right.  It's not going to decide this case.  23 THE  2 4 MR.  25  26  27  28  29  30  31  32  33  34  35  3 6 MR.  37  38 THE  3 9 MR.  40  41 THE  42 MR.  43  44  45  46  47  RUSH:  COURT  RUSH:  Q  Now, Mr. Mitchell, you were asked some questions about  fishing sites by Miss Koenigsberg and you indicated  that you had fished at Namox's fishing site Ooyuk'een,  I think it is, Ooyuk'een?  Ooyuk'een, yes.  And at this -- this was followed by a statement that  you made that you fished at a fishing site which is at  number 502, Mr. Mitchell, if you'll pronounce that for  me?  And my question is, is this -- is this fishing  site Kweese's site?  Kweese took Dee g'iit k'et.  The fishing site that I need assistance on  pronunciation is at 502.  TRANSLATOR: That's Ooyuk'een.  Dee g'iit k'et is 441.  RUSH:  Yes, I'm sorry, that's right, at 441.  Now, could you  pronounce that again for me please, 441?  TRANSLATOR: Dee g'iit k'et.  RUSH:  Dee g'iit k'et?  Dee g'iit k'et.  Was that fishing site a Kweese fishing site?  Kweese, yes.  You were also asked about whether or not you  A  Q  A  RUSH  Q  A  Q  A  Q 3615  1 personally received a food fish permit throughout the  2 1950's, and you said "I forgot how long ago it was  3 when we used to have permits.".  That was my note.  4 And my question to you is, do you recall, Mr.  5 Mitchell, when the Department of Fisheries first had a  6 warden at the Moricetown Fisheries' site at the  7 canyon?  8 A  We were quite young when there was a fish warden there  9 and exactly what time it was or -- I don't know.  10 MR. RUSH:   Okay.  Now, finally, Mr. Mitchell, if you could  11 place Exhibit 250 in front of --  12 THE REGISTRAR:  250?  13 MR. RUSH:  Yes, I think it may have been the last exhibit.  14 THE REGISTRAR:  Yes.  15 MR. RUSH:  16 Q   Mr. Mitchell, you identified your signature on this  17 Exhibit 250 certifying that you are an Indian  18 registered under the Indian Act.  There is another  19 signature on this document and it says "issued by".  20 Do you know whose signature that is?  21 A   No, I can't read that signature.  22 Q   All right.  Do you know who made out this document?  23 A   No, I don't know that, who made it out.  24 MR. RUSH:  Those are my questions.  25 THE COURT:  All right.  Thank you.  Mr. Mitchell, do you still  26 want to say something?  27 THE WITNESS:   Yes, I'd like to —  2 8 THE COURT:  Just a moment.  Just a moment.  29 THE WITNESS:   — ask a question.  30 THE COURT: Mr. Rush, do you want the witness to ask a question?  31 I don't know whom he wishes to ask the question.  32 MR. RUSH:  I don't have any difficulty with him asking a  33 question, My Lord.  34 THE COURT:  All right.  35 THE WITNESS:   All these questions they been asking me, the  36 government, I just wondered why don't they ask me  37 where we from and where we're originated from?  38 THE COURT:  Well, Mr. Mitchell —  39 THE WITNESS:   I don't know why they didn't ask that question.  40 THE COURT:  That would be a question for the plaintiffs' lawyers  41 to ask you if they wanted to ask that question.  42 Sometimes lawyers don't ask questions for good reasons  43 and maybe that would be a good question for them not  44 to ask you.  45 THE WITNESS:   Oh, another one is that they been pretty fussy  46 about our genealogy.  I want to ask the government  47 about their genealogy, Provincial's too. 1 THE  2  3  4  5  6  7  THE  THE  9  10 THE  11  12 THE  13  14 THE  15 THE  16  17 MR.  18 THE  19 MR.  2 0 THE  21  22 MR. RUSH:  23  24  25  2 6 THE COURT  27  26  3616  COURT:  Well, I'd have to tell you, Mr. Mitchell, that that  genealogy might be very interesting, but it wouldn't  be relevant to this case.  WITNESS:   Well, they ask us where you guys from?  COURT:  Well, your lawyers have had lots of opportunity to  ask about genealogy to the extent they think is --  they think it's important.  I don't think there's  going to be any lack of evidence about genealogy in  this case.  Anything else?  WITNESS:   No.  They don't answer my question anyway.  No  use asking any more.  COURT:  That may be true, Mr. Mitchell.  Thank you very  much.  WITNESS:   Thanks.  COURT:  Thank you, Mr. Holland, unless you're going to stay  with us, Mr. Holland, I don't know if you are.  No, he's not required at the moment, My Lord.  And how about Mr. Mitchell?  No.  Oh, yes, I think Mr. Mitchell will be required.  All right.  Mr. Alfred Mitchell's excused, Mr. Rush,  if you wish him to be excused.  Yes.  Thank you.  RUSH:  COURT:  RUSH:  COURT:  MR.  2 9 THE  3 0 MR.  31 THE  32  33  34  35  36  37 THE  38  39 THE  4 0 THE  41 MR.  42  43  44  45 THE  4 6 MR.  47  RUSH:  COURT  RUSH:  (WITNESS EXCUSED)  What about all this material, Mr. Rush, are we going  to need --  You'll probably need some of it.  Yes.  All right.  Thank you.  I call Mr. Dan Michell, My Lord, next witness.  REGISTRAR:  Mr. Dan Michell,  DAN MICHELL, for the Plaintiffs,  having been duly sworn, testified as  follows:  REGISTRAR:  Would you state your name for the record, sir,  and spell your last name?  WITNESS:   Dan Michell.  M-i-c-h-e-1-1.  REGISTRAR:  Thank you.  You may be seated.  RUSH:  Thank you.  Now, My Lord, I have a document book that  I will be making reference to.  It's another black  binder to place with all the other binders you have,  and I have a witness' copy as well.  COURT:  Thank you.  RUSH:  Now, My Lord, I also have an additional up-to-date  Wet'suwet'en word list which I'd like to pass up to 3617  1 you and I only have one.  I'll get another photocopied  2 of that for you.  This takes us up to word number 610.  3 THE COURT:  This duplicates what I already have?  4 MR. RUSH:  It does.  It should bring it forward and it should  5 extend it.  6 THE COURT:  Yes.  All right.  7 MR. RUSH:  Thank you.  8 THE COURT:  Is there — are the first few pages identical?  No  9 they're not.  10 MR. RUSH:  I'm not sure about that.  11 THE COURT:  No, they're not.  The one I've been using goes to  12 115 on the first page and this one goes to 10 --  13 MR. RUSH:  There may be a different —  14 THE COURT:  All right.  I'll replace this one I think in my  15 book.  This is the one you're going to be working  16 from?  17 MR. RUSH:  Yes.  18 THE COURT:  And is this the one Mr. Mitchell works from?  19 MR. RUSH:  Yes.  2 0 THE COURT:  Thank you.  21  22 EXAMINATION IN CHIEF BY MR. RUSH:  23 Q   Now, Mr. Michell, your Wet'suwet'en chief's name is  24 Wigetimstochol?  25 A  Wigetimstochol.  Yes.  2 6 MR. RUSH:   Yes.  27 THE TRANSLATOR: 354.  2 8 MR. RUSH:  354.  And you received this name in 1960 at the  headstone feast of your late brother George Michell?  Yes.  And before you it was your late brother George Michell  who held the name Wigetimstochol?  Yes.  And before your late brother George held the name,  before him it was Alec Tiljoe who held that name?  Yes.  And Alec Tiljoe was your mother Emma Michell's cousin?  That's right.  Yes.  In English Wigetimstochol means great beaver man?  Yes.  And I understand that you are from the House of Namox?  Yes.  And the person who holds the name of Namox is Lucy  Holland or Lucy William?  Yes.  Does Lucy today go by the name of Lucy William?  29  Q  30  31  A  32  Q  33  34  A  35  Q  36  37  A  38  Q  39  A  40  Q  41  A  42  Q  43  A  44  Q  45  46  A  47  Q 1  A  2  Q  3  4  A  5  Q  6  7  A  8  Q  9  A  0  Q  1  A  2  Q  3  4  A  5  Q  6  7  A  3618  Yes.  Now, Lucy William, Chief Namox, is 88 years old I  understand?  Yes.  And the House of Namox is in the Tsayu, T-s-a-y-u,  clan?  Yes.  And this is the beaver clan?  Yes.  And Namox is the head chief of the House of Namox?  Yes, that's right.  And Wigetimstochol is one of the chiefs in the House  of Namox?  Yes.  Now, the sub-chiefs in the house are firstly Lii luus  and that name is held by your mother Emma Michell?  Yes.  18 THE TRANSLATOR: 353.  19 MR. RUSH:  353, My Lord.  2 0 THE COURT:  Yes.  21 MR. RUSH:  22 Q   And secondly Misaloos, and this name is held by Victor  23 Jim today?  24 A   Yes, Misaloos.  25 THE TRANSLATOR: It's 519.  2 6 THE COURT:  Sorry?  27 THE TRANSLATOR: 519.  2 8 THE COURT:  Thank you.  2 9 MR. RUSH:  30 Q   And thirdly Wil'aat, this name is held by Margaret  31 Williams?  32 A   Yes, that's right.  33 THE TRANSLATOR: 601.  34 MR. RUSH:  35 Q   And fourth, Git'an, and this name is held by Susie  36 Alfred?  37 A   Yes.  38 THE TRANSLATOR: 520.  3 9 MR. RUSH:  Now, the chiefs that I've just named, they are all  members of the House of Namox?  Yes, that's right.  Now, is there separate territory owned by  Wigetimstochol that is separate from that owned by  Namox?  No.  And your -- the territory owned by Wigetimstochol and  40  Q  41  42  A  43  Q  44  45  46  A  47  Q 1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17 THE  18 MR.  19 THE  2 0 MR.  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41 MR.  42 THE  43  4 4 MR.  45 THE  46  47  3619  that of Namox are the same?  A   Yes.  Q   And by what right do you as Wigetimstochol have --  what right do you have to the territory of Namox?  A  Well, when I was born as a Tsayu, a member of Tsayu  clan, I was -- I have that right when I got born into  that clan.  Q   And does this right also include the right to the  fishing grounds of the House of Namox?  A   Yes.  Q   And does this right also belong to all of the members  of the House of Namox?  A   Yes.  Q   Now, where is the territory of Namox located?  A   It's up in Sam Goosley which is called in our language  Neel dzii Teezdlii ben.  Neel dzii ben.  TRANSLATOR: 542.  RUSH:  542.  TRANSLATOR:  RUSH:  That's Neel dzii Teezdlii ben.  Q   Okay.  Now, Mr. Michell, do you sit in the seat which  will be the seat -- which is the seat of the successor  to the name of Namox?  A   Yes.  Q   Are you considered to be the successor to Namox among  other members of your clan and house?  A   Yes, I believe so.  Q   The present holder of the name of Namox, what is her  health like?  A   She is very old.  She is sick at all times now and in  and out of the hospital.  She's not able to get around  too much anymore now.  Q   Now, did you provide the affidavit in response to the  interrogatory questions for the House of Namox on  behalf of Chief Namox?  A   Yes, I was chosen to take her place in the court  action.  Q   Okay.  And were you requested to do so by Namox  herself?  Yes, we talked about it.  Okay.  I'm going to refer you to the first tab at --  :  I think we'll take the afternoon adjournment, if you  don't mind, before we do that.  Yes.  Thank you.  A  RUSH:  COURT  RUSH:  REGISTRAR:  Order in court.  Court will recess.  (PROCEEDINGS ADJOURNED FOR AFTERNOON RECESS) 3620  1  2 I hereby certify the foregoing to  3 be a true and accurate transcript  4 of the proceedings herein to the  5 best of my skill and ability.  6  7    8 Tanita S. French  9 Official Reporter  10 (PROCEEDINGS RESUMED AT 3:20)  11  12 THE REGISTRAR:  Order in court.  Ready to proceed, my Lord.  13 THE COURT:  Yes, Mr. Rush.  Yes, thank you.  I was going to ask the witness about  tab 1 in the document book.  I'm placing before you a  black document book, Mr. Michell.  This is headed  "Laxtsamasyu-Tsayu".  This is the seating plan of the  Tsayu and the Laksamshu?  Yes.  Now, do the Laksamshu and the Tsayu sit together at  the feast hall?  Yes.  And you have reviewed this seating plan with me, and  is this seating plan correct?  Yes.  Now, I want to ask you, if you can, Mr. Michell, where  is the dividing line between the Laksamshu and the  Tsayu?  Do the Tsayu sit on basically the right-hand  side of this plan as you face it?  Yes.  All right.  Now, is it correct to say that Florence  Hall sits at the centre of the seating?  Yes.  And to her right sits Leonard George, who is  Smogelgem?  To her left.  I'm sorry?  They're facing me.  To their left.  Yes.  If Florence Hall was seated as she would be  seated at the feast hall, Leonard George would be on  her right?  Her right, yes.  And those people sitting to his right, including  Leonard, they are Laksamshu; is that correct?  Yes.  All right.  And all of those people sitting on  14 MR.  RUSH  15  Q  16  17  18  19  20  A  21  Q  22  23  A  24  Q  25  26  A  27  Q  28  29  30  31  A  32  Q  33  34  A  35  Q  36  37  A  38  Q  39  A  40  Q  41  42  43  A  44  Q  45  46  A  47  Q 1  2  3  A  4 THE  COURT  5 MR.  RUSH:  6  7 THE  COURT  8 MR.  RUSH:  9  Q  10  11  12  A  13  Q  14  15  16  A  17  Q  18  19  A  20  Q  21  A  22  Q  23  24  25  A  26  Q  27  A  28  Q  29  A  30  Q  31  A  32  Q  33  34  35  A  36  Q  37  38  A  39  40  41  42  43  44  Q  45  46  A  47  3621  Florence Hall's left, including Florence Hall, are  Tsayu?  Yes.  :  I'm sorry.  Is Florence Hall Tsayu or Laksamshu.  She's Tsayu.  So those people -- everyone sitting on  Leonard George's left is Tsayu.  :  Yes.  Okay.  Now, just looking at the second row, Mr.  Michell, is Doug Tait, who sits directly here in front  of Florence Hall, is he Laksamshu or Tsayu?  Laksamshu.  Okay.  And are those people who are sitting on Doug  Tait's left, as if you were at the feast hall, are  those people all members of the Tsayu?  Yes.  And those people on his left, including Doug Tait,  they are all Laksamshu?  On his right side.  I'm sorry, yes, thank you.  To his right?  Yes.  All right.  Now, in respect of the third row, where is  the dividing line on the third row between Laksamshu  and Tsayu?  Where Mary Joseph is sitting, this is Lasksamshu.  And the people to Mary Joseph's right are Lasksamshu?  Yes.  All right.  And Kate Ridsdale, she is Tsayu?  Yes.  And those people sitting on her left are Tsayu?  Yes.  Now, there is a fourth row, which includes your name,  the name of Amos Naziel, which appears his  Wet'suwet'en name is Mutt; is that correct?  Yes.  And Victor Jim, Misaloos.  Is there something special  about those people who are sitting in that row?  Yes.  To my understanding, that where Amos Naziel is  sitting, who holds the name Mutt is in line to take  over the name Kweese, to be his or her successor.  And  the same goes where I'm sitting.  We get up -- I'm  sitting on this seat in line to be the successor of  Namox.  And is Victor Jim sitting in a seat which is a  successor seat as well?  Well, to my understanding, you know, if I held the  name Wigetimstochol, if for some reason that I don't 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  Q  A  A  Q  A  Q  A  Q  A  MR.  THE  THE  MR.  A  Q  A  Q  A  RUSH:  COURT  3622  really exercise my authority as being a hereditary  chief I believe Victor would go instead of me to be a  successor of the head chief.  So Victor would be your successor?  No, not necessarily.  He would take over, maybe in our  house would be Namox.  Okay.  Is it correct to say that those three seats are  the seats of successors?  Yes.  And they are all successors in the House of Namox --  or I'm sorry -- in the clan of Tsayu?  Yes.  Is Florence Hall, is she the high chief in the clan?  Yes.  I want to ask you about two names which are on the  third row on the right side, that of Alfred Mitchell  and Bill Mitchell.  Now, Alfred Mitchell, we've heard  in evidence, is from a Gitksan house, the House of  Wiiseeks.  Can you tell the court why does Alfred  Mitchell sit in that seat in the Wet'suwet'en feast?  Well, like Alfred and Billy, they were always treated  as Tsayu, although they are Lasksamshu.  Whenever  Tsayu are hosting a feast they are always involved in  it just as much as Tsayu, although these seats are,  what I should say, I don't know how to explain it, but  are not big chief's seating, they are kind of an open  seating.  These seats where they are seated are considered open  seating?  Yes.  All right.  But do they always sit in those seats?  Yes.  Even though they are open?  Yes.  Okay.  May this be marked as an exhibit, please.  :  Yes.  REGISTRAR:  Exhibit 251, tab 1.  RUSH:  Q  A  EXHIBIT 251 - Laksamshu-Tsayu clan seating plan  One other question in relation to the seating plan,  Mr. Michell.  Those seats which are on the right-hand  side of the -- far right-hand side of the plan as you  look at it, there's two people at the top end;  Beatrice Morris and Helen Nikal.  Are they Tsayu?  Yes. 1  2  3  4  5  6  7  8  9  10 MR.  11 THE  12 MR.  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32 MR.  33 THE  34 MR.  35 THE  3 6 MR.  37 THE  3 8 MR.  39  40  41  42  43  44  45  46  47  3623  Q   And where there are blank seats, is that open seating?  A   Yes.  Q   All right.  And similar on the opposite side, those  seats which run along the left-hand side of this page,  are they Lasksamshu people?  A   Yes.  Q   All right, thank you.  Now, prior to holding the name  of Wigetimstochol did you hold the name of Wii c'agh?  A  Wii c'agh.  RUSH:  Wii c'agh.  TRANSLATOR:  362.  RUSH:  Q   Thank you.  And does the name of Wii c'agh, does that  mean "Big Wings"?  A   Yes.  Q   And I understand you received this name as a child in  approximately 1941 or '42?  A   Yes.  Q   And when you took the name of Wigetimstochol, this  name was passed on to your nephew, Stanley Nikal?  A   Stanley Nikal, Jr.  Q   Stanley Nikal, Jr.?  And that was in 1960?  A   Yes.  Q   Now, does this mean, does the fact that you passed the  name of Wii c'agh to Stanley Nikal, Jr. mean that  Stanley will be your successor?  A   In a way yes, but not necessarily.  Like I said  before, it depends on how they exercise their  authority, like being a chief, you know, in the feast  hall, that have to be recognized by other chiefs that  come to the feast hall.  Um-hum.  I'm sorry, Stanley's last name?  Nikal, Jr.  N-i —  N-i-k-a-1.  Thank you.  Now, is the name of Wii c'agh, is that a child's name  or an adolescent name?  How big a name is the name Wii  c'agh, I guess?  It is hereditary chief name, but not as high as those  of Kweese and Namox.  Is it not as high as other names that appear on the  Tsayu list?  A   Yes.  Q   Now, I would like to show you the genealogy, which is  RUSH:  COURT  RUSH:  COURT  RUSH:  COURT  RUSH:  Q  A  Q 3624  1 at tab 2.  If you will just have a look at that  2 genealogy, Mr. Michell.  Now, you have reviewed that  3 genealogy chart with me?  4 A   Yes.  5 Q   And this is the genealogy chart of the House of Namox?  6 A   Yes.  7 Q   Thank you.  And it contains, so far as you're aware,  8 the members of the House of Namox?  9 A   Yes.  10 Q   Now, you -- is it correct to say that you know most of  11 the people that are referred to on this chart?  12 A   Yes.  Most but not all.  13 MR. RUSH:  But not all, no.  14 MR. GOLDIE:  Having regard to that, perhaps my friend can tell  15 us who the author of the chart is.  16 MR. RUSH:  The -- well, my Lord, I don't know why I'm required  17 to tell my friend that.  18 MR. GOLDIE:  He's not required to do anything.  It's just a  19 matter of assistance to me, my Lord.  If neither my  20 friend nor the witness is the author, or Mr. Michell  21 can't identify everybody, if I know who the author is  22 I may be able to say, as I no doubt will, I have no  23 objections to it being marked.  2 4 MR. RUSH:  25 Q   Well, I think that why I cannot say for certain is  2 6 that the primary work was done by Mr. Victor Jim, who  27 was another of the members in this house, but he may  28 not have done all of the work on the chart, and I  29 suspect that he received assistance from other members  30 of his house, so I can't say with certainty that it  31 was only Victor Jim who did this chart.  Now, I would  32 like you to look at -- it's the 1, 2, 3, 4th page  33 over, Mr. Michell.  And at the -- do you have at the  34 top of that page the appearance of Alfred Namox and  35 Joseph Namox?  36 A   Yes.  37 Q   And I understand that you are not aware of the family  38 connection of the names which are shown above the line  39 where Alfred and Joseph Namox are located; is that  40 right?  41 A   Yes.  42 Q   Okay.  Now, on the same page I want to refer you to  43 the children of Diane Toews and Gary Calaho.  I  44 understand that you are not familiar with their  45 children?  4 6 A   No.  I don't know.  47 Q   Okay.  And I want to refer you as well to the next 1  2  3  A  4  Q  5  A  6  MR.  RUSH:  7  THE  COURT  8  MR.  RUSH:  9  THE  COURT  10  MR.  RUSH:  11  THE  COURT  12  MR.  RUSH:  13  Q  14  15  16  17  18  A  19  Q  20  A  21  MR.  RUSH:  22  THE  COURT  23  A  24  THE  COURT  25  MR.  RUSH:  26  Q  27  28  29  A  30  Q  31  32  33  34  35  36  A  37  38  Q  39  A  40  41  42  43  44  45  46  Q  47  A  3625  page, page 5, that you are not familiar with the  children of Kate Ridsdale and John Ridsdale?  Not all of them.  You are familiar with some of them, are you?  Yes.  Okay.  And --  :  Well, there's only two, aren't there?  No, my Lord.  :  I'm sorry, yes .  There's practically the whole of the second line.  :  Yes.  Now, on page 6, Mr. Michell, I understand that you're  not familiar with the children of Signa Widen and  Henry Hellar?  Do you have this 6th page?  That's page  Yes,  Children that are  Mr. Michell?  5, then one more page.  located here?  Oh, yeah.  Do you know those children,  No.  Okay.  :  Do you know the parents?  Yeah.  I know Signa.  :  Yes.  And I understand that with regard to the children of  Mary Widen, or Widen, and Pete Schon that you do not  know the children, Doreen, Dale, and Darin?  No.  Okay.  Now, would you just go through the chart page  by page, and I want to ask you if, apart from those  exceptions or those exclusions, do you know the other  people that are referred to on the chart?  If you can  just start at page 1 and just quickly review them to  your own eye?  Maybe I should try to explain those ones that I don't  know and when I say I don't know them.  All right, sure?  You know, I know they are part of our family, but I  really don't go meet them and get to know them because  they don't live in our village that we're living in.  That's the reason why I don't really know their band  names.  Even some of my sister's children, you know,  even right close, you know, when there are so many of  them you get mixed up in their names and stuff.  But you know them to be members of Tsayu?  I know they are members of the Tsayu. 1  Q  2  A  3  Q  4  5  A  6  Q  7  8  A  9  Q  10  A  11  MR.  RUSH:  12  THE  COURT  13  14  A  15  THE  COURT  16  A  17  18  THE  COURT  19  A  20  THE  COURT  21  A  22  THE  COURT  23  24  A  25  26  THE  COURT  27  A  28  29  MR.  RUSH:  30  31  32  THE  COURT  33  MR.  RUSH:  34  THE  COURT  35  36  MR.  RUSH:  37  A  38  THE  COURT  39  A  40  THE  COURT  41  MR.  RUSH:  42  Q  43  44  45  A  46  Q  47  A  3626  And your house?  Yes.  All right.  Now, can you just review the chart on page  1?  Yes.  Page 2?  I guess I will ask you, are you familiar with  the people on that page, Mr. Michell?  The first page?  Yes?  Yes.  All right.  Page 2.  :  I take it a number of these will be deceased by now,  are they?  Yes.  :  But you knew them when they were alive?  Yes.  Some of them, like for first page I didn't know  George Michell.  :  Yes?  And he died before my time.  :  I see, all right.  You know of them?  But the rest I know them.  :  All right.  Is George Michell the only one you  haven't known in your lifetime?  Well, there were two George Michells.  Another George  Michell after —  :  Yes?  Was my next older brother, and he died in January of  1959.  My Lord, if you look at the list you will see that  the first George Michell, which is on the left side,  pre-deceased the George Michell --  :  Yes.  And Dan was born after both George's.  :  Yes, all right.  Well, the second George died in  1959.  The witness was born in 19 --  '31?  '31.  :  So you would have known --  Yeah.  I knew him, the second George, I knew him.  :  You didn't know the first one?  All right.  Now, just on the second page, Mr. Michell, you knew  Amanda, and you knew that Amanda and Jimmy Michell  were of the Namox house?  Yeah.  Amanda Michell was of the Namox house.  Yes.  And Amanda was Emma's mother?  Yes. 1  Q  2  3  4  5  A  6  Q  7  A  8  Q  9  10  A  11  Q  12  A  13  Q  14  A  15  THE  COURT  16  A  17  MR.  RUSH:  18  THE  COURT  19  MR.  RUSH:  20  THE  COURT  21  MR.  RUSH:  22  23  THE  COURT  24  MR.  RUSH:  25  Q  26  27  28  A  29  Q  30  31  32  33  34  A  35  Q  36  37  38  A  39  Q  40  41  42  43  A  44  Q  45  46  47  3627  And of course Emma is your mother.  Those -- or the  children that are identified on that line you were  aware of the children and the sisters and brothers of  Emma Michell?  Just some.  Okay.  Except for Emma, they're all passed on?  Yes.  Okay.  And the next line, Mr. Michell, Bernadette  Naziel --  Yes.  Is your sister.  And you know her children?  Yes.  And grandchildren?  Yes.  :  Bernadette is your sister?  Yes.  Emma Michell, my Lord, is Mr. Michell's mother.  :  Yes.  And Bernadette --  :  I'm just trying to see which line.  If you take the first -- top line on page 1, it  follows through into the 1, 2, 3rd line on page 2.  :  Yes, all right.  Okay.  Now, the children of Winnie Michell, Mr.  Michell, you know the children there and  grandchildren?  Yes.  Okay.  Now, go to the third page.  It shows your  sister Beatrice, or your sisters Beatrice, Gloria,  Helen and Lillian and their children, and in the case  of Helen, her grandchildren.  Do you know the children  and grandchildren there?  Yes.  All right.  And then over to page 4, the -- your  sister, Mary Alice and her children, and I think the  children -- the child that's cut off, is that Tanya?  Yes, Tanya.  All right.  Now, I just wanted to ask you again about  if you will look to page 5, which is the next  following page, you will see the children of Lucy  William?  Yes.  And the children of course of Lucy William on page 5  is Kate Ridsdale, but if you then go back to page 4  you will see her children:  Peter Holland, Bill  Holland, Mabel Holland, Francis Holland, Jim Holland 1  2  3  4  5  A  6  Q  7  8  9  A  10  Q  11  12  A  13  THE  COURT  14  15  MR.  RUSH:  16  THE  COURT  17  MR.  RUSH:  18  THE  COURT  19  MR.  RUSH:  20  THE  COURT  21  22  23  MR.  RUSH:  24  25  THE  COURT  26  MR.  RUSH:  27  28  THE  COURT  29  MR.  RUSH:  30  Q  31  32  33  34  35  A  36  Q  37  A  38  Q  39  40  A  41  MR.  RUSH:  42  THE  COURT  43  44  45  MR.  RUSH:  46  THE  COURT  47  3628  and Seymour Holland, and then the children of Mabel on  that page, and except for the grandchildren, do you  know those children of Lucy William and the  grandchildren through Mabel Holland?  Yes.  All right.  Now, I think you said that Kate Ridsdale  on page 5, that you knew some of the children of  Kate's but not all of them?  Yes, that's right.  All right.  And you didn't know any of the  grandchildren; is that right?  No, I didn't.  :  I just want to make sure I understand that Lucy  William is present Namox.  Yes.  :  She was first married to Julian Holland?  Yes.  :  And he died in 18 --  Well, there's no --  :  No, the date is -- so after that she married  Sylvester William, and then so the next line is the  children of Lucy and Sylvester, I take it?  No, my Lord.  The next line are the children of Lucy  William and Julian Holland.  :  Oh, all right.  The next line does not show any children of the  marriage of Lucy William and Sylvester William.  :  All right, thank you.  Now, I'll just take you over to the next page, Mr.  Michell.  On page 6 you will see Maryann Tiljoe and  her children, Alec, Louie, and Annie Tiljoe.  Is it  your knowledge that Alec, Louie, and Annie are members  of Namox and their mother was Maryann?  Yes.  I knew Alec Tiljoe and Annie Tiljoe.  And Louie?  Did you know Louie Tiljoe?  No, I didn't.  Okay.  Did you understand Maryann Tiljoe to be Alec's  mother?  Yes.  Okay.  Now, the children --  :  Can I take it, Mr. Rush, that looking at Louie  Tiljoe, it says born 1898.  Does the "D" mean he's  deceased.  My Lord?  :  Does the "D" mean that he's -- written down he's  still alive but they haven't filled in the date. 1  MR.  RUSH:  2  3  4  THE  COURT  5  MR.  RUSH:  6  THE  COURT  7  MR.  RUSH:  8  Q  9  10  11  12  13  14  15  16  17  A  18  MR.  RUSH:  19  THE  COURT  20  21  MR.  RUSH:  22  THE  COURT  23  MR.  RUSH:  24  THE  COURT  25  26  MR.  RUSH:  27  THE  COURT  28  29  30  MR.  RUSH:  31  32  33  34  THE  COURT  35  MR.  RUSH:  36  THE  COURT  37  MR.  RUSH:  38  Q  39  40  41  A  42  Q  43  44  45  46  A  47  Q  3629  No.  The "D" means we were unable to determine the  date he passed on, but what determines the fact of his  having deceased is the dot in the middle.  :  Yes, all right.  In each of one of them.  :  Yes, thank you.  Now, the children of Annie Tiljoe, Mr. Michell, you  will see on that line there's Thomas, Ellen, and  Donald, all of whom have passed on.  And then you see  the children of Ellen Michell, and I think you  indicated that there were some of the children and  some of the grandchildren that you did not know, but  other than those that you have identified, do you  understand the others on this genealogy on page 6 to  be members of Namox?  Yes.  All right.  :  Do I take it that Bill Widen married Marge Widen and  and she was not an Indian?  Yes.  :  Is that what that "N.I." means?  Yes, "Non-Indian".  :  And her children would not be listed in the  genealogy, or did she have no children?  I will just have to find it here, my Lord.  :  Well, it's on page 6, just where you were a moment  ago.  You were talking about Ellen Michell and Emil  Widen.  My Lord, her children wouldn't be shown, even if she  were adopted into a Wet'suwet'en house, because it's a  matrilineal system and it would fall through the --  through Bill.  :  Yes, all right.  If Bill were a she.  :  Yes.  Now, Mr. Michell, I just ask you to look, please, at  page 7, and you will see there Margaret Williams and  Alec Williams.  You know Margaret?  Yes.  And their children:  Evelyn, Clarence, Georgia, Susan,  and Douglas, and their grandchildren, and then  great-grandchildren.  Do you know these to be members  of the House of Namox?  Yes.  And then I didn't refer you to those people that are 3630  1 identified on page 6, who are the children of Margaret  2 Williams.  If you will just on the right-hand side,  3 there is Rose Williams and Pearl Williams.  Did you  4 know Rose and Pearl, both of whom have passed on?  5 A   Yes.  I knew them.  6 Q   And Rose's child, it looks like Tomy Tom, and Pearl's  7 is Christopher Williams.  Do you know them to be  8 members of the Namox house?  9 A   Yes.  10 MR. RUSH:  Okay.  My Lord, I'm going to ask that this document  11 be made an exhibit to the proceedings.  I think I can  12 say that for the most part this document was drawn  13 with the assistance of Mr. -- drawn by Mr. Victor Jim  14 and with the assistance of course of other members of  15 the house, and Mr. Dan Michell.  16 THE COURT:  Mr. Goldie?  17 MR. GOLDIE:  I don't have any objections.  It would speed things  18 up I think if I could ask my friend just two or three  19 little questions about identification.  Page 7,  20 mid-page, "John Dumont (Alta)".  What does that mean,  21 please?  22 MR. RUSH:  I think that means Alberta.  23 MR. GOLDIE:  Alberta, right.  I think those are the only  24 questions that occur to me.  25 THE COURT:  All right.  26 MR. GOLDIE:  I have no objection to it being marked.  27 THE REGISTRAR:  252 tab 2, my Lord.  28  EXHIBIT 252 - Genealogy of Namox  Now, Mr. Michell, so far as you're aware today that --  the Exhibit 252, which is the genealogy of Namox,  represents the members of the House of Namox?  Yes.  Mr. Michell, I'm going to ask you some questions about  your personal background now.  You were born on April  28th, 1931 and you're 57 years old?  Yes.  And you were born in Moricetown?  Yes.  And I think you've already indicated that your mother  is Emma Michell?  Yes.  And your father was Little Tommy Michell?  Yes.  And he was -- he held the Wet'suwet'en chief name of  29  30  31 MR.  RUSH  32  Q  33  34  35  A  36  Q  37  38  39  A  40  Q  41  A  42  Q  43  44  A  45  Q  46  A  47  Q 3631  1 Skokumwasaas?  2 A Yes.  3 THE TRANSLATOR:  233.  4 MR. RUSH:  5 Q 233.  And I understand that your father passed on on  6 December the 10th, 1985?  7 A Yes.  8 Q And he was of the Laksilyu clan?  9 A Yes.  10 Q And you married Catherine William in 1958?  11 A Yes.  12 Q And she is of the Gil seyhu?  13 A Gil seyhu.  14 Q Gil seyhu, thank you.  And she holds the name of  15 Weeliih?  16 A Yes.  17 THE TRANSLATOR:  483.  18 MR. RUSH:  19 Q Thank you.  And you have eight children?  20 A Yes.  21 Q And they are all members of the House of Knedebeas?  22 A Yes.  23 Q And that's the same house as your wife?  24 A Yes.  25 Q And I understand you have nine grandchildren?  26 A Yes.  27 Q And they are living in Moricetown?  28 A Yes.  29 Q And I understand that you are living in a new house in  30 Moricetown yourself?  31 A Yes.  32 Q And this house was provided to you by the people in  33 Moricetown?  34 A Yes.  35 Q In appreciation for the work that you have done for  36 the village?  37 A Yes.  38 Q And you went to school in Moricetown?  39 A Yes.  40 Q And after school I understand you worked in the  41 logging industry?  42 A Yes.  43 Q And did you work for your father for a period of time?  44 A Yes.  4 5 Q And what did you do with him?  46 A Well, we were taking some cedar poles out for Hansen  47 Lumber and Timber Company. 1  Q  2  3  A  4  Q  5  6  A  7  Q  8  A  9  Q  10  11  A  12  Q  13  A  14  Q  15  16  A  17  Q  18  19  A  20  Q  21  22  23  A  24  Q  25  26  27  A  28  Q  29  30  31  A  32  Q  33  34  35  36  A  37  Q  38  39  40  A  41  Q  42  A  4 3 MR.  RUSH:  44 THE  COURT  45  4 6 MR.  RUSH:  47 THE  COURT  3632  Okay.  And you worked for a period of time peeling  cedar poles?  Yes.  And that you also worked in other jobs in the logging  industry falling?  Yes.  I've done that too.  Okay.  And this was in the 50's and 60's, was it?  Yes.  Okay.  And I understand that from 1964 you worked as a  section man for six years with the C.N.R.?  Yes.  Until about approximately 1970?  Yes.  Okay.  And while you were a section man with C.N.R.  you changed ties and changed rails?  Yes.  And that's the type of work you did?  I'm not  suggesting it's everything, okay?  Yes.  And after this period, Mr. Michell, I understand that  you were trained in maintenance and repair, and  maintenance and repair for villages?  Yes.  Um-hum.  And subsequent to that you obtained  employment with the Moricetown Band to work on the  maintenance and repair for the village?  Yes.  And that you worked with the Moricetown Village for 15  years and you continued to do so up to the present  time?  Yes.  And I also understand that after three years of  working with the village as a maintenance and repair  person you were elected as the chief councillor in  1975?  Yes, that's right.  And that you've been chief councillor -- you were  chief councillor, rather, for the Village of  Moricetown for approximately 12 years, to May of 1987?  Yes.  And you have stood down since that time?  Well, election every two years and two-year terms.  Now, I'm going to turn to another subject, my Lord.  :  All right.  We'll look forward to the pleasure of  hearing that tomorrow morning.  Thank you.  :  Ten o'clock, thank you. 3633  1 THE REGISTRAR:  Order in court.  Court will adjourn.  2  3  4  5  6  7  8  9  10 (PROCEEDINGS ADJOURNED AT 4:00)  11  12 I hereby certify the foregoing to be  13 a true and accurate transcript of the  14 proceedings herein transcribed to the  15 best of my skill and ability  16  17  18  19  20 Graham D. Parker  21 Official Reporter  22 United Reporting Service Ltd.  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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