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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1988-05-09] British Columbia. Supreme Court May 9, 1988

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 5932  1 Vancouver, B.C.  2 May 9, 198 8  3  4 (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT)  5  6 THE REGISTRAR:  In the Supreme Court of British Columbia,  7 Monday, May 9, 1988.  Calling Delgamuukw versus Her  8 Majesty the Queen at bar, my lord.  9  10 SOLOMON MARSDEN, resumed:  11 ALICE SAMPSON, Interpreter, resumed:  12  13 THE REGISTRAR:  I caution the witness and the interpreter, you  14 are still both under oath.  15 THE COURT:  Mr. Grant.  16 MR. GRANT:  I presume the court has been apprised of the other  17 circumstances.  18 THE COURT:  Well, not really.  And I don't know if your learned  19 friends know about the problem, Mr. Grant.  20 MR. GRANT:  No.  I just got in here.  21 THE COURT:  Well, let me say that on noon, I guess it was or  22 thereabouts on Friday, I was informed by the registry  23 that counsel for Weststar Timber wanted to come before  24 me for a short leave in an injunction application  25 against some of the interests represented in this case  26 and I told the registry to inform counsel that I was  27 uneasy about hearing the matter and that I would only  28 do so in the presence of counsel in this case.  And I  29 suggested that perhaps they seek short leave somewhere  30 else, which I understand that they did.  31 MR. GRANT:  Yes.  32 THE COURT:  And so I had no further connection with the matter.  33 I believe -- I believe counsel for Weststar applied  34 before Judge Cowan who was sitting in first division  35 chambers and he gave the short leave to bring the  36 matter on this morning.  And then just this morning I  37 was informed by the trial division that they had heard  38 from I think it was Mr. Adams who suggested that  39 perhaps the matter should come before me.  And that's  40 as far as it's gone.  I said that I would take it up  41 with counsel when the time arises, if it ever does.  I  42 must confess to being somewhat uneasy about hearing  43 the matter.  44 MR. GRANT:  Well, my lord, I am in a very difficult position.  I  45 became aware of the matter on Saturday and Mr. Adams  46 and myself are the only counsel that are available.  47 Mr. Rush can't deal with the matter.  And also it's a 5933  1  2  3  4  5  6  7  THE  COURT  8  MR.  GRANT  9  10  11  12  THE  COURT  13  14  MR.  GRANT  15  16  17  THE  COURT  18  MR.  GRANT  19  20  21  THE  COURT  question, the position that we are taking will not  necessarily mean that you are seized of the matter,  but how to deal with it this morning in light of the  fact of what we have scheduled with both Canada and I  believe the Province to endeavor to complete Mr.  Marsden, and that's my most immediate concern.  :  Yes.  :  And then to set the matter to a proper time that we  can deal with it and that your lordship is most aware  of our time scheduling for this week and I wish to  speak to the matter before you because --  :  Has it been arranged with counsel for Weststar to  come to this courtroom?  :  Mr. Adams advised Mr. Harbottle that we were in this  courtroom and we requested the file to be brought to  this courtroom.  :  Yes.  :  And he said that he -- and the file is now here I  understand, and he said that he was pleased to be  informed of that information.  :  Mr. Macaulay?  22 MR. MACAULAY:  I just heard of this this minute.  23 THE COURT:  You now know as much about it as I do.  24 MR. MACAULAY:  I am concerned that this matter be heard before  25 your lordship in the middle of this trial.  2 6 THE COURT:  So am I.  27 MR. MACAULAY:  I don't know what the issues are.  I assume it  28 has something to do with the assertion by the  29 plaintiffs of rights that they assert at this trial.  30 THE COURT:  Well, that's what I read in the newspapers, but I  31 don't believe everything I read in the papers any  32 more.  33 MR. MACAULAY:  I haven't even read it in the newspapers, but I  34 assume that that's what they are doing.  35 MR. GRANT:  Well —  36 THE COURT:  I used to believe everything I read in the papers  37 but I am sadly disillusioned.  38 MR. MACAULAY:  I can't think of — well, surely another judge  39 might be available to hear that.  40 THE COURT:  Well, I doubt that, too.  But that may be possible.  41 I haven't checked to see what the list looks like, but  42 the problem with that, Mr. Macaulay, is that Mr. Grant  43 and Mr. Adams are both here.  44 MR. MACAULAY:  Oh, I understand that.  And I see — no  45 difficulty with that.  It's whether or not the  46 argument should be made before your lordship at this  47 trial. 5934  1  MR.  GRANT  2  3  THE  COURT  4  MR.  GRANT  5  6  THE  COURT  7  8  MR.  GRANT  :  Well, the argument -- the argument will be about  when we argue.  That's what I am concerned about.  :  Yes.  :  And that's -- that means that you may not be of  course seized of it and you can muse on the matter.  :  Let's deal with the matter when and if counsel for  Weststar arrives.  :  Thank you, my lord.  And I am instructed to endeavor  9 to complete Mr. Marsden's evidence, notwithstanding  10 all of this on Friday at four o'clock.  11 THE COURT:  All right.  Counsel should also know that I have to  12 deal with the madding crowds at ten o'clock.  13 MR. GRANT:  Yes, I am aware of that, too, my lord.  Maybe Mr.  14 Harbottle may be amidst that crowd.  15  16 EXAMINATION IN CHIEF BY MR. GRANT, Continued:  17 Q   Mr. Marsden, I would like to ask you -- I am going to  18 ask you about some of the laws relating to territory  19 this morning, the Gitksan laws.  But before that I  20 would like to ask you if certain of the Gitksan laws  21 are more important to the Gitksan than other laws.  22 And I say that, I should say that there has been  23 evidence to the court by yourself, of course, on  24 adoption laws.  There has been evidence about naming  25 laws.  There has been evidence about the laws of how  26 the Feast operates and evidence of divorce laws as  27 examples and there has been evidence of laws relating  28 to territory.  Can you tell the court if within the  29 Gitksan view certain laws are more important than  30 other laws?  31 A   The most important law of the Gitksan people are the  32 laws concerning the territories.  This is the most  33 important law.  34 Q   And where did those laws concerning the territories --  35 where are they -- where did they come from?  36 A   The Gitksan people have had their laws since the  37 beginning of time.  And this is how the — where the  38 laws come from.  39 Q   Can you explain that by an example of some of the laws  4 0 and where -- a law and where it came from?  41 A   It is clear to us that we were the first people here  42 because of the histories of what has been told the  43 adaawk of the flood.  And it is quite clear to us that  44 the Creator, Lax ha, has given us the land.  45 Q   Tenimgyet, Art Matthews Jr., gave evidence in this  46 case a few weeks ago about an adaawk of the grizzly  47 bear and a woman that was taken by the grizzly bear. 5935  1 Do you know that adaawk?  2 A   Yes, I know.  3 Q   Do you know any laws - I am not asking you to repeat  4 the adaawk as his lordship has already heard it, but  5 do you know of any laws that have evolved out of that  6 adaawk which relate to the land or the resources on  7 the land?  8 A   It is clear to our people, the Aluugigyet, that when  9 this animal told of the way he should be handled when  10 it is killed and this is one -- this is where our laws  11 have came from.  And this is what -- this is what's  12 been used even today by our people.  13 Q   Under the Gitksan law is there any laws that allow the  14 chiefs to change the boundaries of their house  15 territories?  16 A   No.  17 MR. GOLDIE:  Excuse me.  Was that chief or chiefs?  I didn't  18 catch whether it was singular or plural.  19 MR. GRANT:  In my question?  20 MR. GOLDIE:  Yes.  21 MR. GRANT:  Plural.  22 Q   Can you explain the relationship within — recognized  23 within Gitksan law of respect between the Gitksan and  24 the land and resources?  25 A  Whenever they would get something to live on for  2 6 survival, they knew this was given to them by the  27 Creator and in turn they would show great  28 appreciation, because they knew this was from the  29 Creator.  30 Q   I am not sure if it's you, Madam Interpreter, but you  31 say "they."  Did the witness indicate who they are?  32 THE INTERPRETER:   The Gitksan people.  33 MR. GRANT:  34 Q   And is this relationship of respect, you say that  35 whenever they got things referring in the past they  36 would show respect.  37 MR. GOLDIE:  Show appreciation.  3 8 MR. GRANT:  39 Q   Show appreciation.  Does this show of appreciation  40 still occur today?  41 A   Yes, it's still the same.  42 Q   Can you explain that in relation to how your  43 grandfathers related to the first white people who  44 arrived in the territory?  45 MR. GOLDIE:  Well, let's establish when and where the first  46 white people arrived.  Maybe his grandfather wasn't  47 the first to see them. 5936  1 MR.  2  3  4  5  6  7  MR.  MR. GRANT  THE COURT  GRANT:  9  10  11  12  13  14  15  16  17 MR.  18  19  20  21  22  23 THE  2 4 MR.  25  26  27  2 8 THE  2 9 MR.  30 THE  31 MR.  32  33  34 THE  35 MR.  36 THE  37  38  3 9 MR.  40  41  42  43  44  45  46  47  GRANT:  Well, I submit grandfathers in a broader sense.  Q   Were you told about how the Gitksan reacted when the  first white people arrived?  GOLDIE:  Well, excuse me.  I do -- I would appreciate my  friend establishing where this occurred, but we are  talking about a very large territory and we are  talking about a witness from a village that is not on  the Skeena River.  Well, I'll get to that, but I am firstly asking if  he was told about it and then I am going to come to  the point you were raising.  I just asked if he was  told about it and I will get to the detail.  Well, I think some specificity will help.  You can  approach it from any direction you want, but I think  that there is a danger of slipping perhaps over the  line into generality here.  No.  Well, my lord, I just basically was trying  to -- my friend has raised in the past who told him  this or what and I am just starting with the initial  thing was he told about it and then I was going to go  to who told him and I was going to get to the  specificity that way.  Yes, you may approach it that way.  MACAULAY:  There is nothing wrong with this witness  identifying who told him about the first white man  appearing.  But beyond that where are we?  This isn't  an adaawk.  This isn't a question of oral history.  COURT:  Well, I take it to be a question of oral history.  MACAULAY:  Oral history.  COURT:  I suppose that's the category one would put under.  GRANT:  I believe we argued that very point out last May or  June on persons talking about the first white man and  I can't recall whether it was --  I am not sure specifically.  -- one of the first three witnesses.  Yes.  I think it may qualify as admissible hearsay  of an oral history and you may explore it with as much  particularity as you can, please.  COURT:  COURT  GRANT  COURT  GRANT:  Q  A  Q  Were you told about the Gitksan or some Gitksan  meeting the first white people?  No.  Nobody told me.  Now, you were -- I was asking you earlier about the  respect for the resources and the animals and you  talked about appreciation was shown for that.  Is that  appreciation for the resources and the territory, is  it demonstrated in the laws relating to the territory, 5937  1  2  A  3  4  THE  INTER  5  6  7  MR.  GRANT  8  Q  9  10  11  12  13  14  A  15  16  17  18  19  20  21  22  23  24  Q  25  26  A  27  Q  28  29  30  31  A  32  Q  33  34  35  36  37  A  38  Q  39  40  THE  COURT  41  MR.  GRANT  42  THE  COURT  43  MR.  GRANT  44  45  THE  COURT  46  MR.  GRANT  47  THE  COURT  that is the Gitksan laws?  No.  It was -- the laws were always there to be  followed.  3RETER:  And he was asking if I answered your question,  if that was the question, what question were you  really asking.  Something like that.  Okay.  What I will do, Mr. Marsden, is I am going to  go to some of the specific laws relating to the  territory now.  Can you explain that to him.  Now, I'd  like to ask you about the laws relating to trespass.  Have you ever enforced laws relating to trespass on  your territory?  One time -- at one time when we went out, that's some  of the people from kit Kitwancool, when we went out to  my territory we found there was somebody trapping  there.  So what we did is we took all the traps and  the reason why I did this was because somebody was  trespassing on my territory and we didn't want them to  go there -- on there again.  They reported us to the  white man's law and they couldn't do anything about  this, because they knew this person was — these  people were trespassing.  When you seized those traps, was that in accordance  with Gitksan law?  Yes.  What if you had gone to a fishing site or one of the  Gitksan chiefs went to a fishing site, does the same  law apply there if someone else's net or trap is at  that site?  Yes.  Chief Gwis Gyen, Stanley Williams, gave evidence on  commission in this case relating to an event that  occurred in February of this year on Luulak's  territory.  Do you know Luulak and her territory at  Oliver Creek?  Yes, I know him.  And according to Gwis Gyen, logging equipment was  seized by Luulak.  I am sorry, Mr. Grant, but --  Oh, the spelling?  No.  I have lost track of who Gwis Gyen was.  Stanley Williams.  It's a commission evidence  witness, my lord.  All right.  Thank you.  Who we just completed a week ago.  All right.  Thank you. 593?  1 MR.  GRANT  2 THE  COURT  3 MR.  GRANT  4  Q  5  6  A  7  8  Q  9  10  11  12  13  14  15  16  17  18  A  19  20  21  22  Q  23  24  A  25  Q  26  27  28  29  30  A  31  32  33  Q  34  35  A  36  37  38  39  Q  40  41  42  A  43  44  45  Q  46  A  47  The transcript is exhibited now.  Thank you.  Was this seizure by Luulak of equipment, is that in  accordance with Gitksan law?  Yes, this is the reason why they done this is because  it's the Gitksan law.  Chief Xamlaxyeltxw, there has been evidence that the  chiefs under the Gitksan law could kill persons who  trespassed on their territory.  This has been given by  other witnesses.  And your description of what you did  in the fishing sites relates to a seizure of equipment  or goods.  Is that decision that you made to seize  goods rather than kill a person, is that -- is it part  of the chiefs -- is it recognized in Gitksan law that  chiefs can punish persons for trespass in different  ways?  The chief could use this law.  It's still there, but  the government laws have greatly interfered with our  laws, the Gitksan law.  And this is -- this is why  it's not used today.  When you say this is why it's not used today, are you  referring to the penalty of killing for trespass?  Yes.  I'd like to ask you about a slight variation on the  law of trespass.  Under the Gitksan law if a person  trespasses on another chief's territory by mistake, is  there -- must he do something, or what happens in that  circumstance?  If this should happen, the person that trespasses, if  he apologizes to the chief then the chief would  forgive this person.  And on what occasion or where would he apologize to  the chief to be recognized?  This is -- this would happen at a Feast, any kind of a  Feast.  This is when the Feast is going on, it's open  to go -- everything that is to be mentioned in order  for -- in order for the people to hear.  Would the chief or would the person who has crossed  over the territory by mistake have to do anything else  besides apologize?  The person that knows the law is the person that will  compensate -- the trespasser will compensate the chief  at this time when he apologizes in the Feast house.  And why is it done in the Feast hall?  It is not for the Gitksan people to do this by  themselves, because no one would know about it.  And 5939  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16 MR.  17  18 MR.  19  2 0 MR.  21 MR.  22 MR.  23  24 THE  2 5 MR.  2 6 THE  2 7 MR.  28  2 9 THE  3 0 MR.  THE  THE  THE  THE  31  32  33  34  35  3 6 MR  37  38  39  40  41  42  43  44  45  46  47  Q  A  Q  A  Q  A  GRANT:  in order for people to recognize what has been done  and what's going on, they announce it in the Feast and  this is -- this is a correction that's made before the  people.  And does that still apply today?  Yes.  The same.  And does this apply to all the Gitksan?  Yes, all of them.  I'd like to ask you about ownership of the  territories.  Firstly, is there a Gitksan word for  ownership?  In the beginning of time the land was given to our  people and they respected this land.  It is the most  important thing for the -- for our people, the Gitksan  people.  I am not sure.  I was just stopping because it  appeared to me that you were just about to stand up.  GOLDIE:  Yes, I will.  Is there a word that can be spelled  out for recording in the transcript?  GRANT:  Yes.  I am coming back to that.  GOLDIE:  Thank you.  GRANT:  Maybe it would assist, Madam Interpreter, is there a  Gitksan word when I say ownership?  INTERPRETER:  Nidid wilit lood.  GRANT:  Could you give a spelling for that, please?  COURT:  I don't know who is waiting for who here.  GRANT:  Miss Howard is just getting the spelling for you, my  lord.  COURT:  All right.  Thank you.  GRANT:  I hadn't fallen asleep.  TRANSLATOR:  N-i-d-i-d.  COURT:  N-i-d-i-d.  TRANSLATOR:  Space w-i-1-i-t space 1-o-o-d.  COURT:  And that is the word that's the closer equivalent to  ownership.  Thank you.  GRANT:  Q  A  In this court case there has been evidence given about  the wilp and the Miin Simoogit, who I understand you  described last week was the head chief.  And there are  other chiefs in the house and then there are the  members of the house.  With respect to the territory  of the house who owns, or nidid wilit lood, to use  that word, the territory, the Miin Simoogit or all of  the members of the house?  The head chief has the daxgyet, authority to regulate  the territory to the other chiefs and in giving them  to the other chiefs they in turn regulate to the house 5940  1 members.  2 Q   When you say other chiefs, do you mean other chiefs in  3 the same house?  4 A   Yes.  5 THE COURT:  I am not sure, Mr. Grant, if I should understand  6 regulate to mean that or should I understand it to  7 mean delegate?  8 MR. GRANT:  Well, maybe I will pursue it, my lord, to clarify  9 it.  10 THE COURT:  All right.  11 MR. GRANT:  12 Q   When you say the head chief has the power to regulate  13 the authority.  14 THE COURT:  No, no.  Authority to regulate.  15 MR. GRANT:  I am sorry, my lord.  16 Q   The authority to regulate the territory, can you  17 explain what you mean by that?  What does he do?  18 A   The -- he gives them the power to caretake the  19 territory and to -- in turn they let the house members  20 use it.  21 MR. GRANT:   When you say "he" you are referring to the head  22 chief?  23 THE INTERPRETER:  The head chief.  24 MR. GRANT:   And when you are referring to "they" are you  25 referring to the sub-chiefs?  26 THE INTERPRETER:   Sub-chiefs and then the house members.  2 7 MR. GRANT:  28 Q   Okay.  I'd like to rephrase my first question on this  29 topic, and that is under Gitksan law who would be --  30 who is the -- who owns the territory of the house?  31 A   The head chief is -- has the daxgyet to hold this  32 territory.  33 Q   I'd like to refer to laws relating to access to the  34 territories by non-house members.  And the first  35 aspect I would like to ask is if there is a privilege  36 of access known as Yuugwilatxw?  37 A  When a young man marries within the -- within the  38 house of the young woman and they are both Gitksan  39 people, what usually happens is the head chief of that  40 woman's house gives a part of the land to this young  41 man and he tells this young man to use this land to  42 bring the children up, his children up on this land.  43 And also he would give him a fishing site.  44 Q   And how long would the young man have the right to go  45 on that territory, to use it?  46 A   If they happen to separate, then he has no rights to  47 that territory.  But if they go on living together 5941  13  14  1  2  3  4  5  6  7  8  9  10 MR.  11  12 THE  THE  THE  15 MR.  16 THE  17 MR.  18  19 THE  2 0 MR.  21  22  23  24 THE  2 5 MR.  2 6 THE  2 7 MR.  2 8 THE  2 9 MR.  30  31 MR.  32 THE  33 MR.  34  35  36  37  38  39  40  41  42  43  44  45  46  47  until his death, then he'll use that until his death.  And then it goes back to his children.  Q   To whose children?  A   To the man's children.  This is his children with the  wife from that house.  Q   So the children are members of the house --  A   Of the house.  Q   -- whose territory it is?  A   Uh-huh.  GRANT:   Could you just give that -- what's the number of  that word Yuugwilatxw for the record?  TRANSLATOR:  There is two.  1186 and 1243.  COURT:  1243.  TRANSLATOR:  And 118 6.  GRANT:  Is it spelled the same?  TRANSLATOR:  Yes.  GRANT:  My lord, I just wondered, given -- what time did you  want to stop?  COURT:  Oh.  At ten.  GRANT:  I have an excerpt that I wish to refer the witness  to from Histories, Territories and Laws of the  Kitwancool.  I have the title page and page 36 and for  convenience I'll provide them to -- sorry, my lord.  COURT:  Is this part of Exhibit 439?  GRANT:  Exhibit which?  COURT:  This isn't part of Exhibit 439?  GRANT:  No, I don't believe so.  COURT:  No.  Okay.  GOLDIE:  I think it's -- there was an exhibit made of the  map that is part of this.  I think it's 383.  GRANT:  Yes.  There is a map, that rectangular schematic.  COURT:  Oh, yes.  Yes.  GRANT:  It's part of this book, but this is the area that I  wish to refer to.  Q   And what I'd like to ask you - I'll just give this  copy to the interpreter - is, do you recall Madam  Interpreter reading over that section of the  Histories, Territories and Laws of the Kitwancool?  That is, the part three, the laws and customs of the  Kitwancool, the section relating to laws concerning  territories?  Do you remember Madam Interpreter  reading that over to you yesterday?  A   Yes, I remember.  Q   And I am going to ask you about it.  It states:  "Laws concerning territories.  These are the laws  of the lands and hunting-grounds of the people of 5942  1  2  3  4  5  6  7  8  9  10  11 THE  12 MR.  13 THE  14  15  16 MR.  17  18 THE  19 MR.  20  21  22  23  24  25  2 6 MR  COURT  GRANT  COURT  GRANT:  Q  INTERPRETER  GRANT:  Kitwancool.  The lands belong to each clan hold  the power for them.  Another clan going on to  these lands without permission would only make  trouble.  If a person of another clan was found on  these lands without permission, his or her life  would be taken."  And I am going to ask you about that is when that  refers to clans in that, is that the same in this  context as house or wilp?  Well, can this witness answer that, Mr. Grant?  Well, maybe I should --  He can say what his understanding of the laws is,  but surely he can't tell me what the author meant,  whoever the author was.  Is this statement true with respect to Gitksan houses?  Do I read him the first part?  THE  THE  27  28  29  30  31  32  33  34 THE  35 MR.  36  37  3 8 THE COURT  39  4 0 MR  Q   Yes.  You can read him the first paragraph and ask him  if that statement is true with respect to Gitksan  houses.  A   Yes.  COURT:  Mr. Grant, if it's convenient I think we should  adjourn or stand this case down for a moment.  GRANT:  Yes.  Mr. Marsden, you can take a break for a  moment.  (SPEAKING TO OTHER MATTERS NOT CONCERNING THIS TRIAL)  REGISTRAR:  Recalling Delgamuukw versus Her Majesty the  Queen.  COURT:  Mr. Grant.  GRANT:  My lord, before proceeding further maybe I could  have this extract of histories of territories and laws  marked as the next exhibit.  As proof of what?  As a record statement that the  witness has adopted with a modification?  Well, I am going to be proceeding further.  I just  41 think it would seem to make sense that this is the  42 document to which I am referring and that this witness  43 was involved in some of the work, I believe as an  44 informant.  45 THE COURT:  Who is the author?  46 MR. GRANT:  Wilson Duff is the author.  47 MR. GOLDIE:  Well, I -- there is much more to it than than, my  GRANT: 5943  1 lord.  This document arose out of an agreement between  2 the people of Kitwancool and the Provincial museum  3 concerning certain totem poles at Kitwancool.  The  4 agreement is set out in the preface and it was signed  5 on behalf of the people of Kitwancool by this witness.  6 Now, I shouldn't say signed.  The statement is:  "We  7 certify that these conditions are acceptable, Chief  8 Wiha," and then Chief -- Mr. Marsden signed by a  9 sub-chief Liseexw.  And then there are a number of  10 statements about how these were checked and verified  11 and regarded as accurate and so on and so forth.  So  12 that there is a combination in the document of words  13 by Mr. Duff that stories or history recounted by  14 individual witnesses, not witnesses, but chiefs of the  15 Kitwancool as translated by Mrs. Cox, and then the  16 section which is headed part two, Territories of the  17 Kitwancool, and then there is a description of the  18 territories, and then part three, Laws and Customs of  19 the Kitwancool.  And all of these according to my  20 understanding is that the -- the text, whoever wrote  21 the text was checked and accepted by the people of  22 Kitwancool.  I don't think it can be said that this  23 part is Mr. Duff's particular wording.  If it is, the  24 whole of the text was accepted back in 1958 by the  25 chiefs of the Kitwancool including Mr. Marsden.  I  2 6 will be submitting that the whole document ought to be  27 marked and that it ought to be accepted as the truth  28 of the matters stated so far as the parts adopted by  29 Mr. Marsden and his fellow chiefs.  30 THE COURT:  You mean adopted in the document or adopted in the  31 evidence?  32 MR. GOLDIE:  Adopted in the document.  33 THE COURT:  So you don't object to the document being an  34 exhibit.  You just say that the whole thing should be  35 here, not just this excerpt.  36 MR. GOLDIE:  Yes.  I would say that the preface which is written  37 by Mr. Duff is clearly his work, but elsewhere the  38 authorship is identified as a particular chief,  39 translated of course, and then there was a memorandum  40 by Mr. Duff.  The part that I was referring to was  41 the -- and I quote, "the manuscript was prepared in  42 typewritten form and submitted to the Kitwancool for  43 their approval.  It was returned in November 1959 with  44 a number of minor corrections and additions including  45 the lists of personal names in the appendix.  The  46 corrected manuscript was then prepared for  47 publication."  And following that is the -- is a 5944  1 photograph of the chiefs who recorded histories 1958  2 and Mr. Marsden is one of those.  So I would say that  3 the correct question, if I may put it to this -- put  4 it this way, is the statement made in the preface that  5 this was submitted to the chiefs of the Kitwancool and  6 approved by them with minor corrections correct.  If  7 that is so, then the parts which are attritubed to  8 them can be marked.  And my suggestion, my lord, would  9 be that the whole document be marked with the notation  10 in the transcript that it is not submitted, nor is it  11 admitted with respect to any opinions stated by Mr.  12 Duff.  13 THE COURT:  I suppose in cross-examination, Mr. Goldie, you can  14 put that to the witness.  15 MR. GOLDIE:  I had intended to.  16 THE COURT:  Mr. Macaulay?  17 MR. MACAULAY:  My lord, I don't — I don't object.  I see no  18 reason for objecting to Mr. Grant putting propositions  19 to the witness and asking the witness if that  20 accurately reflects the law of his house so far as he  21 knows it.  22 THE COURT:  It offends the rule against leading the witness, but  23 I suppose it's a convenient way of doing it.  24 MR. MACAULAY:  Oh, we have long since gone by that, my lord.  25 Leading has been endemic.  2 6 THE COURT:  All right.  Well, then thank you, Mr. Macaulay.  Mr.  27 Grant, what do you say about Mr. Goldie's larger  28 suggestion?  29 MR. GRANT:  Well —  30 THE COURT:  Which he -- if his facts are correct, he is going to  31 be able to get this in cross-examination anyway.  32 MR. GRANT:  Right.  Subject to the question of relevance  33 relating to the territories of the Kitwancool, and I  34 think that you have made a -- you made the ruling last  35 week which dealt with the question or in Mr. Smith's  36 evidence, I think, during his evidence that so far as  37 the territories are connected or joined to the Gitksan  38 claim territory, then that would apply.  The other  39 problem I see, although I guess Mr. Goldie is free to  40 do it, is the only way for him to fairly put that is  41 to put the entire text to the witness.  I mean this  42 document is 30 -- this document is 30 years old.  For  43 him to say well, it says here that you adopted  44 everything in this document, do you agree with  45 everything in this document I think would be an unfair  46 approach.  And that's one reason why I haven't tried  47 to put the entire document.  I don't intend to or wish 5945  to go through the entire document with this witness.  THE COURT:  Well, all right.  I think we should get on with it.  I am going to -- if you don't agree, Mr. Grant, I am  going to allow you to mark this portion and leave it  to Mr. Goldie to put the rest in, if he can, when the  time comes from cross-examination, at which time I'll  probably then disregard this extract and refer to the  entire text.  But I am wondering what's the reason for  the abbreviated title, " Histories, Territories and  Laws of the."  I think that was just the photocopier, my lord.  It  should be "Histories, Territories and laws of the  Kitwancool."  The word Kitwancool is there.  Kitwancool should be there.  Yes.  Right above "Anthropology in B.C."  All right.  This may be the next exhibit.  9  10  11 MR.  12  13  14 THE  15 MR.  16 THE  17 THE  18  19  20  21  22 MR.  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  GRANT  COURT  GRANT  COURT  REGISTRAR:  The next exhibit will be 447, my lord.  (EXHIBIT 447:  Excerpt of the Histories and  Territories of the Kitwancool)  GRANT:  Q   Okay.  I had raised and discussed the first paragraph  with you, Mr. Marsden, and I just refer you to the  second paragraph of the document, Exhibit 447,  which -- on page 36, that states that:  "Other people may be allowed to hunt there with  the chief's permission if they go in company with  the clan owning the hunting-ground.  Anyone who  marries into the clan may hunt there, with the  chief's permission.  If a woman marries out of her  village, she can go an dhunt with her husband, but  if she has children, they belong to the  Kitwancool, even if born and living somewhere  else."  Is that -- do you agree with that statement as a  statement of the laws that apply to all of the Gitksan  with respect to the house territories?  A   Yes.  All of them.  Q   All of — ?  A   Them.  Referring to the Gitksan people.  Q   All of the Gitksan people.  It then states:  "The chief gives the power over his  hunting-grounds to his nephews, and they are free 5946  1 to use them.  They have been given the power to  2 rule these hunting-grounds belonging to their  3 clan."  4  5 And do you agree that that statement is correct with  6 respect to the house territories?  And is that -- yes.  7 A   Yes.  8 Q   And is that what you were referring to when I asked  9 you about ownership and you said the chief would  10 delegate to his nephew -- delegate to other chiefs in  11 his house?  12 A   Yes.  13 Q   Now, I'd like to go over the next paragraph which  14 states that:  15  16 "One of the strictest laws is that no  17 hunting-ground can ever be cut in half and given  18 to anyone."  19  20 And I would ask if you agree with that and if you can  21 explain why that is if you do agree with it.  22 A   Yes.  That's one of the strictest laws.  It's -- ever  23 since beginning of time the boundaries have always  24 been the same.  What -- the ancient times the people  25 know where the boundaries are.  They are still there  26 today and there is no gaps in between them.  And it's  27 still like this today.  28 Q   And is that the same -- when you say there are no  29 boundaries between them, are you referring to just the  30 territories of the Kitwancool or all of the Gitksan  31 chiefs' territories?  32 A  All the people, all the Gitksan people.  33 Q   It then states that:  34  35 "No one is allowed to make any such  36 hunting-ground smaller or larger, even if they own  37 or have power over it."  38  39 And do you agree with that?  It also says:  40  41 "This also applies to all fishing-grounds and all  42 natural resources in and under the ground."  43  44 Do you agree with those statements as part of the law  45 of the Gitksan?  46 A   Yes.  47 Q   And then it states that: 5947  1  2  3  4  5  6  7  8  9  10  11  A  12  Q  13  14  A  15  16  MR.  GRANT  17  A  "This law is so severe and powerful that no one  from another clan or without clan rights can come  to hunt, fish, mine, cut timber, or do any other  thing on these lands without the consent of the  head chief and his council reading."  Do you agree that that is an accurate statement of the  law with respect to the house territories of the  Gitksan?  Yes, it is.  Now, can you explain why that is so, that this law is  so severe?  This is why the Indian people, Aluugigyet, call their  territories a storage place, An luu to'os't.  :  Do you have a spelling for that, please?  Whenever they would need --  18 THE COURT  19 MR. GRANT  2 0 THE COURT  Sorry.  Are we getting a spelling  9  Yes.  Thank you.  21 THE TRANSLATOR:  A-n space 1-u-u t-u-u-s. (sic)  22 THE COURT:  Thank you.  2 3 MR. GRANT:  24 Q   Okay.  Go ahead with the translation, Miss Sampson.  25 A  Whenever they would need anything for survival or  26 whenever they want the resources, it's just like  27 opening a storage bin and taking what you need out of  28 that, the storage place.  And this is why they look at  29 the -- they have respects for the land for survival.  30 Q   Now, you have already referred to this concept of  31 Yuugwilatxw.  I think it's 1186, my lord.  And you  32 have also described that I believe one of your  33 daughters, Rosy, has married Jack Smith and he is an  34 Indian person from Ahoust, is that right?  35 A   Yes.  36 Q   And would the law of Yuugwilatxw apply to him and the  37 reason I am asking you is to him as a non -- an Indian  38 person who is not Gitksan?  39 A   Yes, he is an Indian and this is applied to him.  40 Q   Now, if one of your daughters married a non-Indian  41 person, a white person, would the law of Yuugwilatxw  42 apply to the non-Indian husband?  43 A   No.  44 Q   Can you explain why?  Why not?  45 A   The reason for this is we have two different  46 lifestyles here.  The Indian people have a different  47 lifestyle from the white people.  The Indian people 594?  1 always care about their relationship with people,  2 especially with their in-laws.  The father-in-law, the  3 mother-in-law.  And they look after their in-laws.  4 And with the white people it's different.  They don't  5 seem to really care about anything.  I have seen a lot  6 in my lifetime that how they have acted.  They have  7 lived, they have lived at a place for a time and then  8 they just leave it.  They walk away.  And they do  9 this.  But with the Indian people it's different.  10 They know how to look after the -- their relationship  11 with the people and their relationship with the  12 territory.  13 Q   Now, I'd like to ask you if you have heard of a law of  14 the Gitksan regarding access by non house members  15 known as Amnigwootxw.  And maybe, madam, you can check  16 the number for me, please.  17 A   Yes.  18 THE TRANSLATOR:  525.  19 THE REGISTRAR:  525.  2 0 MR. GRANT:  21 Q   Can you explain the law of Amnigwootxw?  22 A  Amnigwootxw is similar to Yuugwilatxw.  Amnigwootxw is  23 when the son travels with his father on the territory,  24 he will be with his father until his father dies.  But  25 after his father dies he does not say he owns this  26 territory.  He leaves and if he wants to go back there  27 he has to get permission from the head chief of that  28 territory before he goes back on to the territory  29 where him and his father were before.  This law is the  30 law that shows it's been followed and it's the law of  31 the land.  It shows that it's been followed because  32 there has no boundaries, the boundaries haven't been  33 changed on the territories.  34 Q   If the owner of the territory gives permission to the  35 son after his father's death to go back on the  36 territory, does he do that publicly?  37 A   This could -- when the permission is granted it could  38 be between the head chief and the young man that wants  39 to enter the territory and this person could not be  40 refused if he goes to the chief and asks permission.  41 He would not be refused, because when his father dies  42 all the deceased person's children are taken by the  43 Wii' na t'ahl as their own children and this is why  44 they don't refuse them to go on to the territory.  45 Q   When you say they are taken by the Wii' na t'ahl, can  46 you explain whose Wii' na t'ahl takes them?  47 A   Okay.  It is the Wii' na t'ahl of the person that was 5949  1 travelling with his father.  2 THE COURT:  The Wii' na t'ahl of the father, is it not?  3 MR. GRANT:  4 Q   Yes.  Is it the Wii' na t'ahl of the father?  5 A   Yes, the Wii' na t'ahl of the father.  6 MR. GRANT:  My lord, I just wondered what your sense of when we  7 would break.  8 THE COURT:  I thought we would try and get back on schedule at  9 11:15.  10 MR. GRANT:  11:15.  11 Q   I would like to ask you about whether persons from  12 other houses can go on the territory to learn -- I am  13 sorry, I am not finished -- to learn the boundaries of  14 the territories of other houses?  15 A   The question is it similar to what Stanley did?  16 Q   Well, you are referring to Stanley Williams, Chief  17 Gwis Gyen?  18 A   Yes.  19 Q   Yes.  As an example, he has given evidence on  20 commission that he travelled on many territories of  21 other chiefs.  Is that a privilege or right in the  22 Gitksan law?  Is that a privilege in the Gitksan law?  23 A  What happens is they have seen the lifestyle of  24 Stanley, his consideration, his patience.  They have  25 watched the way he carries himself.  And they chose  26 him because he -- when somebody tells -- asks would  27 you come with us on our territory, he would -- he  28 wouldn't refuse.  He would go right away.  And this is  29 what people found out about Stanley, the way he is.  30 And this is why they -- the chiefs like his company.  31 And it wasn't the intention of teaching them this and  32 that.  It was because they seen his lifestyle.  But  33 the thing is every time when anybody invites anyone on  34 their territory they have to point out where the  35 boundaries are to the people that go with them.  36 Because if they over-step that boundary it will be the  37 chief's fault if this person that he invited gets into  38 trouble because he over-steps the boundary.  So this  39 is why they point the boundaries out to him and where  40 the creeks, mountains, lakes are.  41 Q   You said they -- I believe it was they at the  42 beginning of your answer, they watched Stanley.  Who  43 are you referring to as they?  Who watched Stanley?  44 A   The people, the people that are present there that  45 have territories, they see the way Stanley lives his  46 lifestyle and this is the reason why they like him.  47 This is why they invite him on their territories. 5950  1 Q   When you say the people, are these people the chiefs?  2 A   Yes.  3 Q   I understand that there is a Gitksan term which could  4 be translated as expert.  I think it's pronounced An  5 gwil look't.  Is that correct, Madam Interpreter?  6 THE INTERPRETER:  Yes.  7 MR. GRANT:  Do you have a spelling for that, please?  8 THE TRANSLATOR:  A-n space g-w-i-1.  9 THE COURT:  G-w-i-1?  Thank you.  10 THE TRANSLATOR:  Space 1-o-o-k underlined '-t  11 MR. GRANT:  A "t" at the end?  12 THE TRANSLATOR:  Yes.  13 MR. GRANT:  14 Q   Do the Gitksan chiefs today consider Stanley, that is  15 Gwis Gyen, an An gwil look't.  16 MR. GOLDIE:  Well, how can he answer that question?  Can he not  17 speak for himself?  18 MR. GRANT:  He can start by speaking for himself.  19 MR. GOLDIE:  He is not one of the plaintiffs so I don't know  20 what relevance it has.  21 MR. GRANT:  22 Q   Have you seen Gwis Gyen speak in the Feast hall?  23 A   Yes.  I see.  24 Q   Have other chiefs in your presence asked him to speak  25 about territories in the Feast hall?  26 A   Yes.  This is what they say.  27 Q   Why is he asked to speak in the Feast hall about  28 territories?  29 A   This is the way Stanley is.  He knows all the  30 territories of the chiefs, because most of these  31 chiefs have invited Stanley on their territory and  32 this is why he knows all the territories there and he  33 was invited.  34 Q   Is he considered an An gwil look't with respect to  35 territories?  36 A   Yes.  This is what the chiefs know that this Stanley  37 is an expert on the territories and this is why they  38 choose him to tell their boundaries in the Feast hall.  39 They know this.  40 Q   I'd like to move into another area relating to the  41 laws regarding territory.  Is there a law that  42 recognizes that a person from a different house can go  43 on a Gitksan territory in recognition of him helping  44 to bury the Miin Simoogit of that house?  45 A   This could not happen without the permission of the  46 chief of that house.  47 Q   Of which house? 5951  1  A  2  Q  3  THE  INTER  4  MR.  GRANT  5  6  THE  INTER  7  MR.  GRANT  8  Q  9  10  11  12  13  14  A  15  16  17  18  19  Q  20  21  A  22  Q  23  24  25  A  26  27  28  29  Q  30  31  32  33  A  34  Q  35  36  37  38  A  39  Q  40  A  41  42  43  44  THE  COURT  45  46  MR.  GRANT  47  THE  COURT  Of the chief of the deceased, the new chief house.  The chief of the house whose territory it is?  PRETER:  Could you say it again, please?  :   Madam Interpreter, is it the chief of the house  whose territory it is?  URETER:  Yes.  I am sorry, I just want to be clear for the record  what I am referring to for the record.  Now, is there  a term referred to, and I am not sure I have the right  spelling so my pronunciation might be off, as N'id an  luut t'ip magit, which refers to this privilege.  Do  you have a spelling for that?  Yes.  This could happen.  If the house was weak,  dwindling, and there is no one there to bury the dead,  to help out, so what happens is they call a chief from  the same clan and they would pay the expenses of the  dead and in turn they would give the land.  When you say from the same clan, you mean from a  different house of the same clan?  Yes.  And then -- are you finished?  And how is it  recognized that the chief from the different house of  the same clan gets the right to use the territory?  The head chiefs, the Simgigyet, could do this amongst  themselves in one village.  Like in the Kitwancool  village, they could pass the land, but they can't do  it out of different villages.  Okay.  Just to be clear about this, you know Miluulak  who was a Frog chief of the -- or not -- a Ganeda  chief and whose territory is within the Kisgagas area.  Do you know Miluulak?  Yes.  If -- and I am not suggesting that this is the case,  but let us say that if Miluulak's house, for example,  needed help and Xamlaxyeltxw of the Ganeda clan  helped, would you get right to Miluulak's territory?  No.  And why not?  It's not possible because this is the land of a  different village and it's far from our territories.  One of our laws is not to take anybody's territory  from a different village and that's one of our laws.  :  Perhaps we should take just a slightly accelerated  adjournment, shall we, this morning.  :  Accelerated but the same length approximately.  :  Oh, yes.  Approximately. 5952  1 (PROCEEDINGS ADJOURNED PURSUANT TO MORNING RECESS)  2  3 I hereby certify the foregoing to be  4 a true and accurate transcript of the  5 proceedings herein to the best of my  6 skill and ability.  7  8  9  10  11 Laara Yardley,  12 Official Reporter,  13 United Reporting Service Ltd.  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  x 5953  In chief by Mr. Grant  THE  THE  MR.  9  10  11  12 MR.  13  14  15 MR.  16 MR.  17 MR.  18  19 MR.  2 0 MR.  21  22  23  24  25  2 6 THE  2 7 MR.  28  2 9 THE  30  31  32  33  34  35 MR.  36 THE  37 MR.  38 THE  3 9 MR.  40  41 THE  42 MR.  43  44  45  46  47  (PROCEEDINGS RECONVENED PURSUANT TO THE MORNING BREAK)  REGISTRAR:  Order in court.  COURT:  Mr. Grant.  GRANT:  Yes, my lord.  Chief Xamlaxyeltxw, there -- you've  been describing this privilege or recognition in  Gitksan law about when a person from another house of  the same clan provides -- pays for the burial of a  chief that they have rights to use the territory.  Do  you know if this has happened in the case of a former  Yal?  GOLDIE:  Is this -- I'm sorry.  Excuse me for a minute.  Is  this Yal at Kitwancool or Yal elsewhere, my lord?  There are a number of Yals.  GRANT:  The western Yal.  The Yal at Kitwancool, Gitwangax.  GOLDIE:  Hidee ho.  GRANT:  I don't know if my friend is excited by the  explanation I've given for the name Yal.  GOLDIE:  It would take something more than that.  GRANT:  Q   I'm sure much more.  In any event, can we -- do you  know of an example of this with respect to Yal?  A   Yes, I know about this, but I would like to -- to --  to answer the question of Goldie about the Yal of  Kitwancool.  COURT:  Well, should we bother with this, really?  GRANT:  Well, it's something I was going to go back to  because --  COURT:  Well, you go back to it then, but let's have the  witness answer the question and then try and keep this  thing on some reasonable basis.  Mr. Goldie made a  perfectly sensible clarifying observation, and the  witness shouldn't be interjecting himself into that  sort of thing.  Let's just --  GRANT:  No, no.  COURT:  -- answer the question.  GRANT:  Well, my lord, I agree the observation --  COURT:  Do you really want to argue this, Mr. Grant?  GRANT:  No, I'll proceed to the question I had been and deal  with that in due course.  Thank you.  COURT  GRANT  Q  A  Before you -- before -- I will ask you about that  later as -- about Yal.  But can you explain what  happened regarding Yal and someone assisting in the  burial of Yal?  It -- it happened when -- when there was just Yal and 5954  In chief by Mr. Grant  1 his sister alive, and they lived at a place called  2 Gisa Hooxsit.  3 MR. GRANT:  Do you have a spelling for that, please?  Can you  4 just say the name again, Miss Sampson, so it can be  5 spelt?  6 THE INTERPRETER:  Gisa Hooxsit.  7 THE TRANSLATOR:  G-i-s-a space H-o-o-x-s-i-t.  8 MR. GRANT:  9 Q   Go ahead.  10 A   They lived at this place, and Yal took sick and died,  11 and there was no one there to -- to bury Yal, so she  12 remembered back to her village, Gitsegukla, and she  13 remembered Guxsan.  14 Q   G-u-x-s-a-n, my lord.  15 A  And she went to see Guxsan in the Village of  16 Gitsegukla.  After she arrived in Gitsegukla, she went  17 to see Guxsan and explain to him that there was nobody  18 there to bury the body of Yal.  Because Guxsan was  19 close to the house -- to this house, he buried Yal.  20 After the -- the burial of Yal, Guxsan held a Funeral  21 Feast.  During this feast Yal's sister was trying to  22 give him the -- the rattle, the regalia, but Guxsan  23 refused, and so she tries -- tries to give him the --  24 the -- the seat in the Feast House and the name, and  25 Guxsan refused.  When she finally mentioned a  26 territory, then Guxsan took this territory.  And this  27 territory is still there today, and there is a  28 mountain that they call Guxsan's mountain, Skanist  29 Guxsan Mountain.  30 Q   Were Guxsan and Yal or are Guxsan and Yal in the same  31 Wii' na t'ahl or different Wii' na t'ahl?  32 A   It's a different Wii' na t'ahl, but they were from the  33 same clan.  34 Q   And is there -- do you know -- is there another name  35 for this territory that was given, or for this  36 mountain?  37 A   The name of the territory is Ant ga'1 bakw.  38 MR. GRANT:  That I believe is listed, my lord.  Could you check  39 that?  It's in the -- it's in the directory.  The name  40 was given in Stanley Williams' evidence.  I think it  41 starts A-n-t.  42 THE COURT:  A-x-d-i-i-t b-a-h-1, number 5?  43 MR. GRANT:  Number 5?  What have you got it as?  44 THE TRANSLATOR:  1070.  4 5 MR. GRANT:  46 Q   1070, my lord.  47 Now, when did this happen? 5955  In chief by Mr. Grant  1  A  2  Q  3  A  4  Q  5  A  6  Q  7  8  9  A  10  11  Q  12  13  A  14  Q  15  16  17  18  19  20  21  A  22  23  24  25  26  27  MR.  GRANT  28  29  THE  INTER  30  THE  WITNE  31  THE  COURT  32  33  34  MR.  GRANT  35  THE  COURT  36  MR.  GRANT  37  THE  COURT  38  39  40  MR.  GRANT  41  Q  42  43  44  A  45  46  47  It's been a long, long time --  Was it before --  -- when this happened.  -- before you were born?  Yes, long, long before I was born.  Where is this territory Ant ga'1 bakw located in  relation to say Gitsegukla and Gitwangax, Skeena  River?  It's close to Cedervale where this territory is,  across from the river.  That would be on the railroad side of the river  then?  Yes.  Okay.  Under the Gitksan law, and I'm not talking  about the specific example you've given of Yal but the  general principle of these transfers where a house  needs help at a Funeral Feast, for example, is it a  permanent transfer or is it recognized that -- or is  it preferred that the land be returned at some future  time to the original house under Gitksan law?  This is the law of the Gitksan people.  When a chief  has buried a dead person, then that land is -- is not  taken back.  It -- it is given to be kept.  If the  chief that is giving the land away makes a decision  that he wants the -- the land back, then it is; and if  he says he doesn't want the land back, then it is.  Just a second.  You said it is.  Is what?  You said  if the chief --  RETER:  It is given away.  S:  Yeah.  What I'm taking from that is that if it's a gift  with a statement of reversion, then it comes back;  otherwise it's absolute.  Right.  I don't know if that's what the witness meant.  Right.  That refers to the timing in a sense.  Unless there's a condition it comes back.  But I'm  not sure that's what the witness said.  That's what  I'm assuming.  Is it at the time that the land is given that it is  announced it will be returned in the future or does  that happen later?  Yes, they -- they announce in the feast how -- how the  land is going to be.  If -- if they decide to -- to  just use the land and give it back later on, they will  say, "Dim am dax yukw dii."  That means I'm just 5956  In chief by Mr. Grant  1 holding it.  2 Q   Maybe we can get the spelling after you're finished  3 your answer, Miss Sampson.  Go ahead, Madam  4 Interpreter.  Miss Sampson?  5 A  And when this happens, then they will return that  6 territory when -- when the -- when the house members  7 are stronger to -- to take over.  8 MR. GRANT:  Do you have a spelling for that?  9 THE TRANSLATOR:  Dim am dax yukw dii, D-i-m space a-m space  10 d-a-x underline space y-u-k-w space d-i-i.  11 THE COURT:  Thank you.  12 MR. GRANT:  13 Q   Do you know of an example of this, where the land was  14 returned in Tenimgyet's -- with respect to Tenimgyet's  15 house?  16 A   I — I don't know.  17 Q   Okay.  To refresh your memory, you -- I would refer  18 you to Charles Smith.  Do you recall something with  19 respect to Charles Smith and the Tenimgyet territory?  20 A   Yes, I know.  Yes, this -- this happened in  21 Tenimgyet's and Axtii Hiikw's house when Charles  22 Smith's father passed on.  There was -- there was no  23 one in the house.  All the people were too young in  24 that house to be responsible for -- for the -- for the  25 territories and the names, so what Charles Smith  26 did -- Charles Smith did is he took the — a name, and  27 he held he was the caretaker of the -- of the  28 territory.  Years later, when Charles Smith seen that  29 the -- the house was getting -- the house members were  30 getting stronger, then he let go of the — of the  31 name, the seating place and the -- and the territory,  32 and he gave it back to -- to the rightful owner.  And  33 this was when Tenimgyet was -- was, Art Mathews  34 Junior, was still small in that house.  35 Q   I'd like to ask you about another area about laws of  36 access.  What is the Gitksan law with respect to  37 crossing over the territory of another chief or of  38 another house to get to your own territory?  39 A   This is what happens when, and it happens a lot of  4 0 times, that when one of the family that owns one of  41 Wii' na t'ahl, that owns the territory up further than  42 this territory here, then what happens, they walk on  43 the territory of that other chief's to get to their  44 territory.  And what happens is they don't -- they  45 just go on that trail.  They don't go out of the trail  46 and start hunting on that territory.  They just keep  47 walking until they get to their own territory. 5957  In chief by Mr. Grant  1 MR. GRANT:  What is this called in Gitksan, the right to cross  2 over someone else's territory?  3 THE INTERPRETER:  Nii yuuwit.  4 MR. GRANT:  Can we get a spelling for that?  5 THE TRANSLATOR:  N-i-i space y-u-u-w-i-t.  6 THE COURT:  Thank you.  7 MR. GRANT:  8 Q   And do you know or -- I'm sorry -- when the chief is  9 crossing that territory, can he hunt for food on his  10 way through the other chief's territory?  11 A   Yes, they -- they could do this if -- if the animal  12 was right on that trail.  They could shoot that animal  13 on the trail, but they can't go in and hunt on that  14 territory.  15 MR. GRANT:  I'd like to ask you about another area of the  16 territory laws and transfers, and this is what's been  17 referred to as Xsiisxw.  That term has already been  18 given.  It starts T-s, I think.  Do you have a number  19 for that?  Maybe X-s.  20 THE TRANSLATOR:  X-s, I think.  21 MR. GRANT:  22 Q   Miss Howard will get the number, my lord.  23 Do you know of a law where land can be transferred  24 which is referred to as Xsiisxw, and if so, can you  25 explain it?  26 A   Xsiisxw is when something is given, when a -- when  27 land is given to the person or when -- when life is  28 given to the person.  These are the -- it's -- they  29 don't want anything that will wear out right away,  30 like material things.  They don't want this for  31 compensation.  They have to -- to take a look at  32 what -- what they're -- they're going to give because  33 they want to use this for -- for a lifetime.  A  34 lifetime thing has to be given.  35 Q   What is Xsiisxw -- I'm sorry, you're not finished,  36 Madam Interpreter.  What is Xsiisxw given for?  37 A   This is when a person's life is taken, and it's a  38 serious matter to -- to have a -- to have -- to give  39 compensation to the -- to the family.  And a life has  40 been taken here, and that's what they have to look at.  41 This is why they have to -- to give a lifetime thing,  42 like the land, another person they would give, because  43 the -- the life of a person has been taken.  44 Q   How long -- if land is given, how long is it given  45 for?  46 A   The -- the life of a person has been wiped out, and  47 for -- for the -- for that person to be compensated 595?  1  2  3  4 MR.  5 THE  6 MR.  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  children  36  37  38  39  40  41  42  43  44  4 5 MR.  46  47 THE  In chief by Mr. Grant  for this life that was taken then it is for a  lifetime.  If they -- if they would give that land  away, it will be for a lifetime.  GRANT:  For the lifetime of who?  INTERPRETER:  Of the —  GRANT:  Q   If a person has been killed and then you say they give  it for the lifetime, how do they determine the length  of the lifetime?  A   It is given to them.  They are the owners now.  Q   Is it ever returned?  A   It -- this is not the law, to -- to have the land  returned, but if the chief that is getting the land  makes a decision that one day he will return the land,  then that would happen.  The head chief.  Q   And where -- how would he announce the return of the  land, if that chief who received it was going to give  it back?  A   They -- they always -- the chiefs always announce  their plans in the Feast House, and they will also  announce it too when they are giving this land back.  Q   Is there a special -- at what type of feast would they  announce the return of land?  A   It is very serious when a life is gone, and this is  one of the -- the -- the biggest feasts we have, is  when -- when they're having a feast for — when  they're having a Funeral Feast.  It is one of the  serious feasts, and this is where -- where they  usually announce when the -- when the Xsiisxw will be  returned.  Q   Have you seen -- first of all, do you know of an  example of a Xsiisxw where land was given to a -- to  the house of a victim of a killing or a death?  A   I've -- I've seen this happen once about 30 years ago  when Ernest Hyzims -- one of Ernest Hyzims'  accidentally shot Walter Wesley.  And this child, the  boy that -- that shot Walter Wesley, was from the  House of Simadiiks.  What David Wells did -- he was  the one that held the name Sakum Higookw.  He -- they  were in the same house as Simadiiks, and he held the  name Sakum Higookw.  And what he did is he -- he gave  a part of a territory to -- to -- well, what he did  is -- is he had papers out, and he even sent these  papers to Ottawa.  GRANT:  But you said he gave part of the territory to, and  you interrupted yourself.  INTERPRETER:  That's exactly how he said it. 5959  In chief by Mr. Grant  1 MR. GRANT:  2 Q   Okay.  To whom did he give part of the territory?  3 A   It was given to Guxsan.  Matthias Wesley was Guxsan  4 then.  And Guxsan still has this territory today.  5 Q   Who was the head chief of this house of which  6 Simadiiks and Sakum Higookw were members at that time?  7 A   I am not sure, but what -- what I was told is that  8 they were in the same house, and Sakum Higookw is the  9 head chief.  10 Q   And how was -- I think it was Matthias Wesley you said  11 who was Guxsan.  How was he related to Walter Wesley,  12 the victim?  13 A   His brother.  14 Q   If there is a Xsiisxw between the Gitksan and another  15 group of people who are not Gitksan, is the settlement  16 or the transfer of land recognized as permanent under  17 Gitksan law?  18 A   Yes.  19 Q   And you're aware of, and I'm just giving this as an  20 example, of the wars between the Gitksan and the  21 Ts'its'aawit around the Meziadan area?  You know those  22 histories?  23 A   Yes, I know that.  24 Q   And was there a Xsiisxw between the Ts'its'aawit and  25 the Gitksan that ended those wars?  26 A   This is the -- what the Ts'its'aawit gave the  27 Kitwancool people for compensation of the blood that  28 was spilt there.  It's the Meziadan Lake and the  29 surrounding areas.  I am not sure -- quite sure how --  30 how big the Meziadan area is, and this is what they  31 gave the people.  32 Q   Was there a feast between the Ts'its'aawit and the  33 Gitksan at which this was given?  34 A   The meeting is called Gawaagyaanii.  35 MR. GRANT:  Do you have a spelling for that?  36 THE TRANSLATOR:  760.  37 MR. GRANT:  38 Q   760.  39 A   Before peace was made between these two, Kitwancool  40 invited the Ts'its'aawit people, and in turn the  41 Ts'its'aawit invited the Kitwancool people.  42 MR. GRANT:  Are you finished?  And is this method of settlement  43 through Gawaagyaanii and the feast, is this --  44 MR. GOLDIE:  I don't think he said feast.  45 MR. GRANT:  I'm sorry, I should have said and Xsiisxw.  46 MR. GOLDIE:  All right.  Thank you.  4 7 MR. GRANT: 5960  In chief by Mr. Grant  A  Q  A  Q  A  1 Q   Through Gawaagyaanii and Xsiisxw.  Is it part of the  2 Gitksan law?  3 A   Yes, it is.  4 THE COURT:  I didn't get the spelling of the name of this other  5 people.  6 MR. GRANT:  Oh, the Ts'its'aawit.  TRANSLATOR:  T-s stop i-t-s stop a-a-w-i-t.  COURT:  Thank you.  GRANT:  Q   And your daughter, Rena Williams, had a child who was  killed by accident in a car a few years ago; is that  right?  Yes.  And the persons from the house -- the person who was  involved in that accident who was driving the car was  from the House of Luutkudziiwus; is that right?  Yes.  Was there a Xsiisxw or any settlement at a feast  relating to Rena's -- your grandchild's death?  I don't exactly remember -- I don't remember exactly  what date it was last month when Joshua Campbell  passed on.  This was when a feast was held, and they  invited our family to this feast.  Before the expenses  were paid, they announced what had happened, that  the -- that the life of a young girl was taken from  Guxsan's House and that -- that a payment would --  would be made to -- to that family, and they did give  them a small amount of money.  This kind of Xsiisxw  that gives money is -- is -- is not according to our  law because the money is spent fast, but the thing  that really counts here is that the family were  satisfied because these people will never forget this  law that they are trying to put into action.  COURT:  All right.  Could we adjourn, please?  GRANT:  Could I have just one clarifying question to end the  area?  COURT:  Do you have to?  GRANT:  Not if you have to —  COURT:  I'm in a little rush today.  GRANT:  Just -- when you say the family, which family was  that?  INTERPRETER:  Luutkudziiwus' family — Guxsan's family.  COURT:  All right.  Two o'clock, please.  THE REGISTRAR:  Order in court.  Court will adjourn until 2:00.  MR.  7 THE  8 THE  9 MR.  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 THE  35 MR.  36  37 THE  3 8 MR.  39 THE  4 0 MR.  41  42 THE  43 THE  44  45  46  47  (PROCEEDINGS ADJOURNED PURSUANT TO THE LUNCHEON BREAK) 5961  In chief by Mr. Grant  1  2 I hereby certify the foregoing to be  3 a true and accurate transcript of the  4 proceedings herein to the best of my  5 skill and ability.  6  7 Leanna Smith  8 Official Reporter  9 United Reporting Service Ltd.  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  4 7 (PROCEEDINGS RESUMED PURSUANT TO LUNCHEON ADJOURNMENT) 5962  S. Marsden (for Plaintiffs)  In Chief by Mr. Grant  1  2 THE REGISTRAR:  Ready to proceed, my lord.  3 THE COURT:  Thank you.  Mr. Grant.  4  5 EXAMINATION IN CHIEF BY MR. GRANT, Continued:  6 Q   Chief Xamlaxyeltxw, I'd like to ask you about Yal.  Do  7 you know who holds the name Yal in Kitwanga today?  8 A   George Turner has this name.  9 Q   Do you know of anyone in the house of Antgulilbix,  10 Mary Johnson, in Kispiox holds the name Yal today?  11 A   I heard about this, that this is where the name Yal is  12 from, Mary's house from Kispiox.  13 Q   Mary Johnson's house?  14 A  Mary Johnson's house.  15 Q   Can you explain how the name Yal came from Kispiox to  16 be in Kitwanga with George Turner?  17 A   I've heard there was one chief who was known as Gho  18 j ansxwi'm.  19 Q   Go ahead.  20 A   She later held the name Yal.  And I have seen that  21 they had a pole there, but I really don't know why Yal  22 has a pole in Kitwancool.  23 MR. GOLDIE:  Kitwancool or Kitwanga?  24 MR. GRANT:  Kitwanga was the answer.  25 A   There was no Fireweed Clan living in Kitwancool.  26 There were only two clans.  That was the Frog Clan and  27 the Wolf Clan and these are the two clans in that  28 village.  This is why it is not clear to me why Yal  29 had a pole in Kitwancool.  There is only one thing I  30 know is that Yal married a woman out of Gwashlam's  31 house.  32 MR. GRANT:  Do you have a number for Gwashlam?  I think it's on  33 the plaintiffs' list.  34 THE TRANSLATOR:  18.  35 MR. GRANT:  36 Q   18 on the plaintiffs' list.  37 A  And this is the reason why Yal was given a part of a  38 territory and a fishing site, because of Yuugwilatxw.  39 After Yal's death they were not supposed to have  40 ownership of that territory that was given to him and  41 also the fishing site.  42 Q   I'd like to turn to another subject and that is the  43 subject of what I will refer to as delegation.  Do you  44 know any occasions where the Gitksan chiefs delegate  45 the function of speaking to outside groups to a  46 specific person or group of persons?  47 A   Yes, they do this. 5963  1  Q  2  A  3  4  5  6  7  Q  8  A  9  10  THE  COURT  11  A  12  MR.  GRANT  13  Q  14  A  15  THE  COURT  16  MR.  GRANT  17  THE  COURT  18  A  19  20  21  MR.  GRANT  22  Q  23  A  24  Q  25  26  27  A  28  29  30  Q  31  32  A  33  Q  34  35  36  37  A  38  39  40  41  42  43  44  45  46  47  Q  S. Marsden (for Plaintiffs)  In Chief by Mr. Grant  Can you explain by example how this is done?  Yes.  The chiefs could choose people to — they'll  give -- they'll put their power on this person to be  used as a spokesperson to stand in for them, to speak  for them in such as in the court case and whatever  they want him to do or to say.  Has this happened --.  Oh, I am sorry.  This is what the Simgigyet did with the tribal  council.  I am sorry, this is what who did?  The Simgigyet.  Simgigyet.  That's chiefs.  Chiefs.  The chiefs?  Yes.  That's the plural of chiefs.  Thank you.  They appointed the tribal council for this court case  and the tribal council -- the tribal council could do  this but not the band council.  Finished?  Uh-huh.  When such a delegation -- first of all, can that  delegation by the chiefs, is that consistent with the  Gitksan laws?  The reason why the tribal council could do this was  because of the chief decisions from all the different  villages, Gitksan villages.  When such a decision is made under Gitksan law, who  holds the Daxgyet or authority over the territories?  It's always the chief that has the Daxgyet.  Now, I would just like to ask you about the poles.  Do  the Gitksan -- can you explain the relationship of the  Gitksan totem poles to the territory of the Gitksan  chiefs?  When the chief is planning to raise the pole, it is  very important because he thinks back of his territory  where he would put all -- on this pole he would put  all the power and authority that he has and he'll put  all the crests in his adaawk on this pole.  And even  around this area we see totem poles and it's -- the  Indians know how important it is to our people,  because it shows where our power and authority and  jurisdiction is.  This is what these poles show where  it lies.  And this totem pole is called Xwtsaan.  This totem pole is called Xwtsaan? 5964  S. Marsden (for Plaintiffs)  Cross-exam by Mr. Goldie  1 A   Xwtsaan.  2 MR. GRANT:  Do you have a spelling for that?  3 THE TRANSLATOR:  It's 568.  4 MR. GRANT:  Thank you, Chief Xamlaxyeltxw.  If you would answer  5 Mr. Goldie's questions.  6 THE COURT:  Mr. Goldie.  7  8 CROSS-EXAMINATION BY MR. GOLDIE:  9 Q   Mr. Marsden, do you understand English?  10 A   Little bit.  11 Q   Little bit.  When you drove a bus in Prince Rupert,  12 did you speak a little bit of English with the people  13 there?  14 A   Uh-huh.  15 Q   I would like to speak to you directly in English, but  16 if you don't want to do that then we can speak through  17 Mrs. Sampson.  Is that all right?  18 A   Uh-huh.  19 Q   Thank you.  Sometimes your chief's name is spelled  20 differently and I'd like you to spell this to him.  21 K-'a-m space L-e-x-y-e-1-t-x-w.  How would you  22 pronounce that?  23 THE TRANSLATOR:  Could you spell that again, please?  24 MR. GOLDIE:  Yes.  Well, the first spelling I want to show you  25 is from page two of Exhibit 439 and it's item two and  26 it reads the seat or thrown of Gam lakyeltq, but there  27 appears to be a "q" at the end of it and Mrs. Sampson  28 will pronounce that.  That is your name.  29 THE INTERPRETER:  He said he will explain to you why.  30 A   The reason for this is because there was a person from  31 the Nass River that this was when the first white man  32 arrived, came and showed some of our people how to  33 write the language, which is different from today when  34 another person shows up and this is -- he knows  35 that -- he knows how to write the language.  So this  36 is why there is two different spellings.  37 MR. GOLDIE:  38 Q   Yes.  Well, I am not surprised that there are  39 different spellings and I am not being critical.  I  40 just want to make sure that whenever I read a certain  41 spelling I'm thinking of Mr. Marsden.  Now, if you  42 look at page 15 of Exhibit 439 under Ganeda the first  43 name K-' a-m space l-a-x underlined space y-e-1-t-x-w,  44 that, too, is your name, is it not, Mr. Marsden?  45 THE INTERPRETER:  Well, we didn't see.  46 MR. GOLDIE:   Well, could Mrs. Sampson see the exhibit.  47 THE TRANSLATOR:  It's this one. 5965  S. Marsden (for Plaintiffs)  Cross-exam by Mr. Goldie  1 THE INTERPRETER:  Oh, is that the one?  2 A   Yes.  3 MR. GOLDIE:  4 Q   Yes.  Now, here's a much older one and this may be the  5 man from the Nass.  I'm going to show you a document  6 and in the first line of the second paragraph there is  7 a name, K-a-m-'-n-a-e- with a circumflex or line  8 joining it, r-h-'-y-a-e-1-t-k.  Do you see the one I  9 am referring to?  The first line of the second  10 paragraph.  11 MR. GRANT:  I am not sure, to expedite matters if my friend  12 showed it to me I may be --  13 A   It doesn't look like it's anything like my name, the  14 way I have seen it spelled before.  15 MR. GOLDIE:  16 Q   No.  All right.  Thank you.  Mr. Marsden, you are the  17 head chief or senior chief of the Ganeda Clan or  18 Raven, is that right?  Perhaps you should translate  19 that for him.  20 A   Yes.  I'm the first.  21 Q   And in Kitwancool the Ganeda Clan is Raven/Frog?  22 A   Uh-huh.  23 Q   And in Kitwancool they are really two people who have  24 come together, the Raven from the headwaters of the  25 Stikine, and the Frog from the Skeena?  26 A   Yes.  27 Q   Now, I want to ask you some questions about when you  28 obtained your chiefly name, Xamlaxyeltxw, and I think  29 you told his lordship that you obtained that name in  30 1955 when Albert Douse died?  31 A   Yes.  It's true.  32 Q   And before Albert Douse held that name, his mother  33 Mrs. Richard Douse held the name?  34 A   Yes.  35 Q   And she had two sons, John D. Derrick, D-e-r-r-i-c-k,  36 and Albert Douse?  37 A   John R. Derrick.  38 Q   John R. Derrick?  39 A   R. Derrick.  4 0 Q   Right.  Thank you.  And Mrs. Douse wanted Albert to  41 succeed her and she gave him the name Hlamii?  42 A   That's right.  43 Q   And that means a successor to Xamlaxyeltxw, to the  44 chiefly name?  45 A   Hlamii is the Sto'o wilp and he chooses his own  46 successor.  47 Q   Well, I want to make sure that I've got the right 5966  S. Marsden (for Plaintiffs)  Cross-exam by Mr. Goldie  1 name.  Could you spell for me, Hlamii?  2 THE INTERPRETER:   H-1-a-m-m-i.  3 MR. GOLDIE:  4 Q   All right.  That's the name that I have.  And I  5 thought that was the name that was given to the  6 successor to be, Xamlaxyeltxw?  7 A   No.  I told you already that Hlamii wilp chooses own  8 successor.  9 Q   Thank you.  When Mrs. Richard Douse was Xamlaxyeltxw  10 Sindihl was a name, a chief's name behind Xamlaxyeltxw  11 at that time, was it not?  12 A   The Xamlaxyeltxw is the first chief and what they  13 never told me is that they didn't tell me why Sindihl  14 comes after Xamlaxyeltxw because he was the first  15 chief when they arrived.  16 Q   Yes.  And wasn't it when Mrs. Richard Douse died that  17 the members of the clan Ganeda could not agree on who  18 her successor would be and Albert Douse was given the  19 name but Sindec or Sindihl was given the seat?  20 A   Yes.  This is what happened because John Derrick was  21 older than Albert and this is how they put it.  But I  22 don't know the reason why John didn't take the name  23 Xamlaxyeltxw.  24 Q   Albert took the name, didn't he?  25 A   Uh-huh.  26 Q   And Albert sat in front of John Derrick at the Feast?  27 A   Yes.  28 Q   Yes.  And it was said at the Feast that the two shared  2 9 one seat even though there were two of them?  30 A   Yes, it's still like that today.  31 Q   Yes.  That's the way it is with you and Mr. Good,  32 Robert Good?  33 A   Uh-huh.  34 Q   Yes.  Now, your mother, Mrs. Maggie Good, was the  35 sister of Mr. Albert Douse, was she not?  36 A   That's right.  37 Q   And when Albert Douse died -- well, he was killed in  38 an accident, was he not?  39 A   Yes.  40 Q   Did he not want Jonathan Derrick to be his successor?  41 A   John Derrick asked me, came and got me and asked me to  42 take the name and this is how I -- this is why I took  43 the name Daxgyet.  44 Q   Was there not a meeting or Feast at which the  45 Kitwangas and the Gitseguklas were also present?  46 A   No, they did not have a meeting, but they were told  47 the chiefs of the Gitsegukla and Kitwanga were told 5967  S. Marsden (for Plaintiffs)  Cross-exam by Mr. Goldie  1 about what has happened and this is -- they have  2 recognized this.  3 Q   Well, were not some of the Gitsegukla and Kitwanga  4 chiefs against your taking the name and the Wolf Clan  5 chiefs spoke up in your favour?  6 MR. GRANT:  Of which village?  7 MR. GOLDIE:  8 Q   Of Kitwancool.  9 A   No.  They all agreed that I should take the name.  10 Q   All right.  Do you know who Walter Douse was?  11 A   I know him.  12 Q   And is he alive now?  13 A   No.  14 Q   No.  Was he alive in 1958?  15 MR. GRANT:  Which name was that?  16 MR. GOLDIE:  17 Q   Walter Douse.  18 A   I think so.  19 Q   All right.  Did you know Jonathan Johnson of Kispiox?  2 0       A   No.  21 Q   All right.  Now —  22 THE COURT:  Say he did no or he didn't know?  23 MR. GOLDIE:  24 Q   I understood him to say no.  25 A   No.  26 Q   I think you told his lordship that your name was  27 changed from Solomon Good to Solomon Marsden in 1962  2 8           and you explained why.  Are you sometimes known as  29 Solomon William Marsden?  30 A   No.  Solomon Allan.  31 MR. GOLDIE:   Is Mr. Marsden's name?  32 THE INTERPRETER:   Second name Allan.  33 MR. GOLDIE:   Second name.  34 Q   Does he know a Solomon William Marsden?  35 A   No.  36 Q   Thank you.  37 A   I have a son that is Solomon Marsden Jr.  He's known  38 as Bill.  39 Q   Oh.  All right.  Thank you.  4 0       A  And —  41 Q   He might then be the one.  42 MR. GRANT: I think the interpreter was completing her answer.  43 A  And this must be a mix-up with the William and Bill.  44 MR. GOLDIE:  45 Q   Thank you.  Now, you've told his lordship that your  46 parents were Mr. and Mrs. Fred Good except that your  47 father was Douglas Marsden, is that right? 596?  S. Marsden (for Plaintiffs)  Cross-exam by Mr. Goldie  1 A   Yeah, that's right.  2 Q   Mr. Fred Good, however, at one time had a map of the  3 Kitwancool trapping and hunting territories?  4 A   Yes.  5 Q   And it was that map which is the basis of the map in  6 the front of the Kitwancool histories that we were  7 talking about this morning.  Histories, Territories  8 and Laws.  Could we have Exhibit 383, please.  9 THE REGISTRAR:  383.  10 MR. GOLDIE:  Yes.  I think it's the fronticepiece and the map.  11 MR. GRANT:  It's in the white book.  12 MR. GOLDIE:  Oh, yes, thank you.  Well, I think I can —.  13 Perhaps I can show it to the witness.  Apart from the  14 line, the straight line which I'm indicating --  15 MR. GRANT:  That's on the external boundary?  16 MR. GOLDIE:  The external boundary.  17 Q   But that map is the map that -- is like the map that  18 Mr. Fred Good had, is that correct?  19 A   Uh-huh.  20 THE COURT:  Which line, Mr. Goldie, east or west?  21 MR. GOLDIE:  Pardon, my lord?  22 THE COURT:  Which line were you directing his attention, east or  2 3 west?  24 MR. GOLDIE:  I was pointing on the external boundary on the  2 5 west.  26 THE COURT:  The west, thank you.  27 MR. GOLDIE:  But I —  28 MR. GRANT:  Oh, just the one line.  29 MR. GOLDIE:  Well, I am referring to the straight line boundary  30 in total.  31 Q   Mr. Good's map didn't have any line around as an outer  32 boundary at all, did it?  33 A   There was no lines.  34 Q   There was no boundary lines?  35 A   No boundaries lines.  36 Q   Thank you.  Now, I am going to show you — I am going  37 to show you a copy of the pamphlet, Histories,  38 Territories and Laws of the Kitwancool, and on page 3  39 there is something called an agreement, and on page 4  40 there is a statement that the conditions of the  41 agreement are acceptable, Chief Wiha, W-i-h-a.  Would  42 you pronounce that, Mr. Marsden, please?  43 A  Wiha.  44 Q   Wiha.  45 THE COURT:  Where is that, Mr. Goldie?  46 MR. GOLDIE:  It's on page 4, my lord.  4 7 THE COURT:  Yes. 5969  S. Marsden (for Plaintiffs)  Cross-exam by Mr. Goldie  1 MR. GOLDIE:  Right at the top.  2 THE COURT:  Oath, yes.  3 MR. GOLDIE:  4 Q   Chief Wiha was a head chief of the Lax Gibuu or Wolf  5 Clan?  6 A   Yes.  7 Q   And that was Walter Derrick?  8 A   Yes.  It was Walter Derrick.  9 Q   At that time?  10 A   Uh-huh.  11 Q   Yes.  And you and he found that agreement which had to  12 do with the Kitwancool totem poles acceptable in 1958,  13 is that right?  14 MR. GRANT:  Well, my lord, I think that the witness should have  15 an opportunity to have the agreement -- this is 30  16 years ago -- have the agreement reviewed and maybe at  17 the time of the break with him.  When I say reviewed,  18 have it read to him is all I mean so he knows what's  19 being discussed here.  20 MR. GOLDIE:  Well, I can do it a little differently.  21 Q   Did you remember, Mr. Marsden, in 1958, which as Mr.  22 Grant says is 30 years ago, the Kitwancool people  23 agreed with Mr. Wilson Duff that three totem poles  24 could be taken to Victoria and restored and in return  25 a book would be published of the Kitwancool Histories  26 and Territories and Laws.  Do you remember that?  27 A   Uh-huh.  28 Q   And do you -- who is Liseexw?  Was there a chief in  29 your house Liseexw?  30 A   Less-say-gu.  31 THE COURT:  I don't have an answer to that.  The question was  32 was he a chief in the house of the witness.  33 MR. GOLDIE:  In the house of the witness and Mr. Marsden gave a  34 slightly different and more correct pronunciation.  35 THE COURT:  Yes.  But did he agree with the suggestion?  36 MR. GOLDIE:  37 Q   I said he, but it was Maggie Good, was it not?  38 A   Yes.  39 MR. GOLDIE:  My lord, that's indicated on page five.  40 THE COURT:  Well —  Oh, yes.  41 MR. GOLDIE:  42 Q   The Frog Clan, Chief Liseexw, Maggie Good, and in  43 accordance with that agreement --.  Oh, Maggie Good  44 was your mother?  45 A   Uh-huh.  46 Q   Yes.  And she signed the agreement for you?  47 A   Uh-huh. 5970  S. Marsden (for Plaintiffs)  Cross-exam by Mr. Goldie  1 Q   And the totem poles or the poles were taken away and  2 the stories and histories and laws of the Gitksan --  3 of the Kitwancool were told before a lady by the name  4 of Mrs. Cox?  5 A   Uh-huh.  6 Q   And then they were printed and sent back to Kitwancool  7 for you and the chiefs to examine, is that correct?  8 A   Uh-huh.  9 Q   And this document that I have shown you contains on  10 page 14 the stories of the two totem poles shown on  11 page 15, is that right?  This has the stories of these  12 two totem poles?  13 A   Uh-huh.  14 Q   And those stories were told by Mr. Ernest Smith who  15 was -- well, who was Mr. Smith, was he Chief Wiixa?  16 A  Wiixa.  17 Q   Wiixa?  18 A   Yeah.  That was before Walter Derrick.  19 Q   So it was Mr. Ernest Smith in 1958 and Mr. Walter  20 Derrick in 19 sometime later?  21 A   Yeah.  22 Q   Thank you.  I'm sorry.  I was confused.  And then  23 there were other stories told and one of them was the  24 story of the Nee-gamks totem pole belonging to the  25 Frog Clan?  26 MR. GRANT:  My lord, it appears my friend is going through this  27 book and reading the titles, quickly scanning the  28 book.  I wonder what the point of that is.  It's  29 obvious what the titles are and also I don't know if  30 the witness has read these stories or read this book.  31 MR. GOLDIE:  Well, I don't know whether he has or not, my lord.  32 MR. GRANT:  Maybe it should be asked of him.  33 MR. GOLDIE:  My understanding is that these stories were sent to  34 Kitwancool and they were approved by the chiefs and  35 Mr. Marsden was one of the senior chiefs at the time  36 and I have no idea whether he's read it recently or  37 not, but in my submission --  38 MR. GRANT:  Or at all.  39 MR. GOLDIE:  -- the approval of these stories is the approval of  40 the history of the Kitwancool.  And if my friend  41 challenges that, if he tells me that these stories are  42 incorrect or he is not prepared to accept the witness'  43 statement, well, that's one thing and we can deal with  44 that.  45 THE COURT:  Well, do you say, Mr. Goldie, that the witness has  46 already said that these are the stories that were  47 approved by the chiefs? 5971  S. Marsden (for Plaintiffs)  Cross-exam by Mr. Goldie  1 MR. GOLDIE:  Yes, I was in the middle of going through those.  2 THE COURT:  All right.  3 MR. GOLDIE:  And I — the final question that I want is that  4 yes, indeed these are the stories of the Kitwancool.  5 THE COURT:  Well, I think it's time for the adjournment.  I  6 think it won't do any harm to have the witness look at  7 the document if that's his wish during the adjournment  8 and we will resume again in a few minutes.  9 MR. GOLDIE:  All right.  10  11 (PROCEEDINGS ADJOURNED PURSUANT TO AFTERNOON RECESS)  12  13 I hereby certify the foregoing to be a true  14 and accurate transcript of the proceedings  15 herein to the best of my skill and ability.  16  17  18  19 Laara Yardley, Official Reporter,  20 United Reporting Service Ltd.  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        (PROCEEDINGS RECONVENED PURSUANT TO THE AFTERNOON BREAK) 5972  S. Marsden (for Plaintiffs)  Cross-exam by Mr. Goldie  1  2 THE REGISTRAR:  Order in court.  3 THE COURT:  Mr. Goldie.  4 MR. GOLDIE:  5 Q   Mr. Marsden, I've put before you the pamphlet we've  6 been talking about, and I've opened it at page 6, and  7 I would ask you if you would agree with me that the  8 right-hand man in the second row identified as Mr.  9 Solomon Good is you 30 years ago?  10 A   Yes.  11 Q   And the -- you and the other chiefs were identified as  12 the people who recorded the histories, and the other  13 chiefs were Mr. Ernest Smith, Mrs. Maggie Good, Mr.  14 Peter Williams, Mr. Walter Derrick, Mr. Fred Good?  15 Those were the chiefs who told the histories, are  16 they?  17 A   Urn hum.  18 Q   Thank you.  When you say "um hum," you mean yes, do  19 you?  20 A   Yes.  21 MR. GOLDIE:  Thank you.  Now, I referred to the agreement that  22 was entered into with the Kitwancool, but I also want  23 to refer to page 5.  About two thirds of the way down  24 the page I'm going to read to you what is there.  25 MR. GRANT:  Could the interpreter have it in front of her too?  26 MR. GOLDIE:  27 Q   It states on this page that Mrs. Cox -- Mrs. Cox was  28 the interpreter?  29 A   Yes.  30 Q   "Mrs. Cox spent the period from October 10th to  31 October 19th in Kitwancool.  Her work was much  32 facilitated by the generous hospitality and  33 co-operation of Mr. and Mrs. B.W. McKilvington (Mrs.  34 McKilvington being the school-teacher in the  35 village)."  Do you remember Mrs. McKilvington?  36 A   Yes.  37 Q   And she was the school teacher?  38 A   Um hum.  39 MR. GOLDIE:  Continuing, "As the appointed chiefs narrated the  40 stories, Mrs. Cox translated them into English and Mr.  41 McKilvington wrote them down."  Do you recall that?  42 You're nodding your head?  43 MR. GRANT:  Can —  44 THE WITNESS:  Well, I don't know.  45 MR. GOLDIE:  Oh, you don't know.  All right.  Well, let me  46 continue.  47 MR. GRANT:  Just -- I'm just wondering if the witness is 5973  S. Marsden (for Plaintiffs)  Cross-exam by Mr. Goldie  1 following what you're saying.  2 MR. GOLDIE:  3 Q   Well, if I'm going too fast, you tell me, and I'll  4 have Mrs. Sampson translate it.  5 A   Yeah.  6 Q   All right.  Do you remember Mr. McKilvington writing  7 down the stories in a notebook?  8 A   Yes.  9 Q   Thank you.  And on the last page of the notebook all  10 of the chiefs signed their name; is that right?  11 A   Yes.  12 Q   And your name is down there as the Frog Clan chief,  13 Xamlaxyeltxw, Solomon Good; is that correct?  14 A   Yes.  15 Q   And the story of the Frog Clan, if you'd turn to page  16 23 -- or the raven.  First, I show you photographs on  17 page 22.  Are those totem poles standing outside or  18 did they stand outside of Albert Douse's house at one  19 time?  20 A   Yes.  21 MR. GOLDIE:  Now, my lord, the story which begins at page 23 is  22 the history of the totem pole Ha' niilaahl gaak, Where  23 The Raven Sleeps With Its Young, and was recorded on  24 October 15th, 1958, and continues on page 27.  25 MR. GRANT:  Mr. Marsden was not present from the description at  26 the beginning.  27 MR. GOLDIE:  Well, that's just precisely what I was about to  28 say.  29 MR. GRANT:  Thank you.  30 MR. GOLDIE:  31 Q   The people present on the first day were Mr. Ernest  32 Smith, Mr. Peter Williams, Mr. Fred Good, Mr. Walter  33 Derrick, and Mrs. Fred Good.  34 Mr. Marsden, is it so that only your mother, Chief  35 Liseexw, would be the only person who could discuss  36 the history of the pole?  37 A   Yeah, only her was know pretty well the story that  3 8 time.  39 Q   Yes.  And she allowed Mr. Walter Derrick to tell the  40 story on this particular occasion.  Would that be  41 appropriate?  Would that be -- if you can translate  42 for me, Mrs. Sampson.  Would that be proper under  43 Gitksan law?  44 A   Yes, she gave her permission for this adaawk to be  45 told.  46 Q   Thank you.  And this is an adaawk, is it?  47 A   Yes. 5974  S. Marsden (for Plaintiffs)  Cross-exam by Mr. Goldie  1 Q   And this adaawk is the story of the pole, and it is at  2 a time when Sindihl was the chief?  3 A   Yes.  4 MR. GOLDIE:  And it tells the story of their travels from the  5 place they came from, which means wading in water?  6 Could you read -- could you put that question to the  7 witness, please?  8 THE INTERPRETER:  Where are you reading from?  9 MR. GOLDIE:  10 Q   Well, it's the third paragraph beginning with the  11 words, "Now begins the story of this most important  12 pole.  Shen-dil was the name of the chief, and  13 Zem-an-lu-sqaks, meaning 'wading in water,' was the  14 name of the place they came from."  15 A   It's not the village, it's the house that's Tsim an  16 luu Sgeexs.  17 Q   I'm sorry, I didn't catch your answer.  18 A   It's not the village, it's -- the house name is Tsim  19 an luu Sgeexs.  20 Q   I see.  All right.  But this adaawk tells of the  21 travels down to the Wolverine River?  That's in the  22 same paragraph.  23 A   Yes.  24 Q   And then it tells how they came to Kitwancool or  25 Gitan'yaaw.  That was the name of Kitwancool before  26 the wars with the Ts'its'aawit; is that right?  27 A   Yes.  28 Q   Is this the same adaawk that you told his lordship  29 about, the travels down to the Wolverine and then the  30 other river which -- the Cranberry River?  31 A   Yes, it's the same.  32 MR. GOLDIE:  Now, if I go over to page 27, which is a history of  33 the wars with the Ts'its'aawit and how the Village of  34 Gitan'yaaw became Kitwancool, and that took two days,  35 and you were present during that time, were you?  36 MR. GRANT:  On the second day.  37 MR. GOLDIE:  38 Q   Could you ask Mr. Marsden if he was present when the  39 history of the wars adaawk was told?  40 A   Yes.  41 Q   And that -- and you have told the same adaawk of the  42 two wars here?  43 A   Yes, it's the same.  44 Q   Thank you.  Now, my lord, that carries through until  45 page 34.  Now I want to ask you about the territories,  46 and this is on page 35, and then on page 36 there is  47 the portion that Mr. Grant put to the witness, and 5975  S. Marsden (for Plaintiffs)  Cross-exam by Mr. Goldie  1 I'll be asking the witness some questions about that.  2 Mr. Marsden, the only clans that hold territory in  3 the Kitwancool are the Wolf and the Raven/Frog?  4 A   Yes, the only two.  5 MR. GOLDIE:  You told his lordship this afternoon that the  6 Fireweed Clan owned some property through Yal, or Yal,  7 but that was long ago and is no longer the case?  Let  8 me rephrase that.  Does the Fireweed Clan own any  9 property?  10 MR. GRANT:  Is that in Kitwancool?  11 MR. GOLDIE:  In Kitwancool.  12 THE COURT:  You mean in the Kitwancool Village or in the  13 territory?  14 MR. GOLDIE:  In the territory.  15 THE COURT:  Thank you.  16 THE WITNESS:  The only reason why Yal was around the territory  17 of the Kitwancool people was because of Yuugwilatxw.  18 MR. GOLDIE:  And tell me what that means, please?  19 THE INTERPRETER:  Yuugwilatxw is when a male person marries into  2 0 a woman's house --  21 MR. GOLDIE:  All right.  22 THE INTERPRETER:  — and uses the territory.  23 MR. GOLDIE:  All right.  Now, Kitwancool is the only village in  24 which there are only two clans; am I right in that?  25 MR. GRANT:  Of the Gitksan.  26 MR. GOLDIE:  27 Q   Of the Gitksan people?  28 A   Yes, there's only two clans in Kitwancool.  29 MR. GOLDIE:  In 1938, which Mr. Grant will no doubt point out to  30 me is 50 years ago, there was --  31 MR. GRANT:  That's not necessary.  32 MR. GOLDIE:  33 Q   -- there was an agreement between the Frog and the  34 Raven Clans, and they formed a union; is that correct?  35 A   Yes.  36 Q   Yes.  And that's still the case today?  37 A   Yes, it's still the same today.  38 Q   And Kitwancool is the only village of the Gitksan that  39 has such an arrangement between clans?  40 A   Yes, they -- they did this because they — they want  41 to stand together independently, and they want to  42 stand as one if there is any problems that -- that  43 arises.  44 Q   But there is no other Gitksan village which has that  45 arrangement?  46 A   I never heard of it.  47 Q   No.  And the Kitwancool also have a president, don't 5976  1  2  A  3  Q  4  A  5  Q  6  A  7  Q  8  9  A  10  Q  11  12  A  13  Q  14  A  15  Q  16  17  18  A  19  20  Q  21  A  22  23  24  Q  25  A  26  Q  27  i  28  A  29  Q  30  i  31  A  32  Q  33  34  35  i  36  A  37  3 8 MR.  GOLDIE  3 9 MR.  GRANT:  40  41 MR.  GOLDIE  42  Q  43  A  44  45  Q  46  A  4 7 MR.  GOLDIE  S. Marsden (for Plaintiffs)  Cross-exam by Mr. Goldie  they?  Yes.  The present president is Mr. Peter Williams?  Yes.  And the president before him was Mr. Albert Williams?  Yes.  And the first president was Mr. Albert Douse; is that  correct?  Yes.  Now, he has the power to protect the laws of  Kitwancool; is that correct?  Yes.  No other Gitksan village has a president, does it?  No.  And those Kitwancool laws which the president protects  include the laws concerning the Kitwancool  territories?  Yes, the -- the -- the president has -- has protected  our laws and -- and also our laws of the land.  Yes.  And the -- the -- the chiefs all have their -- their  own powers over the territory, but they — they chose  the president to be a spokesperson.  And to protect the laws?  Yes.  Now, is it correct that a chief's daughter must always  marry a chief?  She's supposed to marry a prince, not -- not a chief.  I see.  But a chief must also marry a chief's  daughter; is that not correct?  Yes, he could.  Now, Mr. Grant asked you about Gitksan laws, about  access to territory and things of that order.  Are  those laws the same for the Nishga as they are for the  Gitksan?  They did have the same laws, but today they -- the  Nishga people have tried to change these laws.  :  And what about the Tsimxsan?  I'm just wondering if the witness was finished the  answer.  I'm sorry.  What about the Tsimxsan?  Do they have the same laws?  I think they are the same because they -- they have --  we see these totem poles when -- when we go see them.  And they have the same clans?  Yes, they have clans too.  :  Thank you.  Now -- 5977  S. Marsden (for Plaintiffs)  Cross-exam by Mr. Goldie  1 THE COURT:  I'm sorry, the question was they have the same  2 clans, and the answer was, yes, they have clans too.  3 Are they the same clans?  4 MR. GOLDIE:  5 Q   The clans are the same, are they not?  There is a  6 Wolf, and a Raven, Eagle?  7 A   I am not too sure whether it's the same because even  8 in the Wet'suwet'en tribe you have four — four clans,  9 and I'm not too sure about the -- the -- these people.  10 Q   The Tsimxsan?  11 A   If -- the Tsimxsan people, if they have different  12 clans.  13 MR. GOLDIE:  All right.  You say the Wet'suwet'en have four  14 clans, but they come from a different -- they're a  15 different people, are they not?  16 MR. GRANT:  From the Gitksan?  17 MR. GOLDIE:  18 Q   Yes, from the Gitksan.  19 A   Yes, they are a little different.  20 Q   Now, Mr. Marsden, the -- you have told us that the --  21 the stories that were translated by Mrs. Cox were  22 returned to you and your fellow chiefs, and they were  23 in typewritten form on a typewriter; is that correct?  24 I'm -- perhaps you --  25 A   Yes, that's right.  26 Q   And then it was returned to Victoria, and it was  27 printed in the form that you see before you?  28 A   Yes.  29 MR. GOLDIE:  Well, I tender that as an exhibit, my lord.  3 0 THE COURT:  Mr. Grant.  31 MR. GRANT:  I think there may be -- I want to reserve the right  32 that certain portions of it I may argue with respect  33 to relevance, but I have -- subject to that and also  34 with respect to the question of -- I'll — I can raise  35 matters on re-direct, of course, on one or two  36 matters, but other than that I have no objection.  37 THE COURT:  Yes.  All right.  It will be the next exhibit.  38 THE REGISTRAR:  Exhibit 448.  39  40 (EXHIBIT 448 - BOOKLET ENTITLED "HISTORIES,  41 TERRITORIES AND LAWS OF THE KITWANCOOL")  42  43 MR. GOLDIE:  Now, Mr. Marsden, you told his lordship that the  44 Kitwancool were not Plaintiffs in this action, and  45 that was because you wanted to be independent of the  46 laws of the Gitksan, of the other Gitksan; is that  47 correct? 597?  1 THE  2 MR.  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  coast  and  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  S. Marsden (for Plaintiffs)  Cross-exam by Mr. Goldie  INTERPRETER:  What was that last part?  GOLDIE:  Q   They wished to act independently, they did not want to  mix their laws with the Gitksan people.  A   The Kitwancool people have always talked about being  independent for a long, long time now.  It never just  recently start.  They have said this way before this  started, the land claim started.  And this is what  they always said.  And it is not quite clear to me why  we -- we aren't here in court.  And this is why they  elected the president years back.  Q   Yes.  A   Because they want independence.  Q   Yes.  Independence from the other Gitksan?  A   It is not very clear to me when -- when they first  elected that president -- a president, it isn't very  clear to me what the real reason was.  Q   Well, the first president was elected a way back  before the first war, 1908, '9, '10, '11, somewhere in  there?  A long time ago?  A  Maybe it is.  Maybe it is that time when they elected  the president.  Q   And he was the president of the -- he was -- as you  say, he was elected president because of land claims?  A   Yes.  Q   And the Kitwancool have their own land claim, do they  not?  A   Yes.  Q   Now, there is much -- the Kitwancool people have over  the years, a number of them have gone to the  have lived with the Nishga; is that right?  A Yes. What happened is when the first missionary came  and started teaching them religion, the Nishga people  were -- were religious people, and some of the people  in Kitwancool took to religion also, and so what they  did is they left Kitwancool to go live with the rest  of the people that believed, and there must be --  there must have been over a hundred people that moved  down -- down there.  Q   To the Nishga?  A   Yes, from what I was told.  Q Thank you. And there have been some movement of  Kitwancool people to the Gitksan villages on the  Skeena, like Kispiox, Gitwangax, Gitsegukla?  A   This is only through marriage.  Q   Like you know Fred Johnson, Lelt, don't you?  A   Yes. 5979  S. Marsden (for Plaintiffs)  Cross-exam by Mr. Goldie  1  2  3  4  5  6  7  8  9  10  11 MR.  12 THE  13 THE  14 THE  15  16 MR.  17 THE  18 THE  19  20  21 MR.  22 THE  2 3 MR.  24  25  26  2 7 MR.  28  29  30  31  32  33  34  35  3 6 MR.  37  38  39  40  41  42  4 3 MR  44  45  46  47  THE  Q   Fred Johnson came from Kitwancool, but he is -- now  lives at Gitwangax; is that right?  A   Yes.  Q   But his father was a high chief in the Wolf Clan in  Kitwancool?  A   Yes.  Q   And that is how -- that's an example of how Kitwancool  people have moved and live in other villages of the  Gitksan?  Fred Johnson belongs to the Gitwangax Clan.  Yes.  I'm sorry, I haven't heard of  A  GOLDIE:  COURT:  Sorry, which clan?  INTERPRETER:  Gitwangax Clan.  COURT:  The Gitwangax Clan,  it before, have I?  GRANT:  I think that may have been Madam Interpreter.  INTERPRETER:  He belongs to one of the clans in Gitwangax.  COURT: Thank you. Well, he was a member of the Wolf Clan  at Kitwancool. Would he still not be a Wolf Clan at  Gitwangax?  GRANT:  No, that was his father.  COURT:  His father.  GRANT:  And that's where I was concerned with my friend.  He  said he was from Kitwancool.  Of course, he referred  to his father, but I think the witness has answered  now that he's from Gitwangax.  GOLDIE:  Q   Well, we'll come back to Mr. Johnson.  Mr. Marsden, I  want to show you Exhibit 439, which is the Kitwancool  comprehensive claim, and ask you is that your  signature on page 9?  Is that your signature?  A   Yes.  Q   Did you sign that or did you ask somebody to sign for  you?  A   That's my signature.  GOLDIE:  That's your signature.  Good.  That's what I hoped.  Mr. Marsden, before you put your signature there, did  you have this land claim to the Federal Government  explained to you?  Did you understand what it was?  INTERPRETER:  He said no, but I think he misunderstood my  question.  I think he thinks that I'm saying did you  read this.  GOLDIE:  Q   No, I didn't -- it's just -- perhaps if I put this  question, Mrs. Sampson:  Before he signed it, did  somebody explain to him in his own language what that  was all about? 5980  S. Marsden (for Plaintiffs)  Cross-exam by Mr. Goldie  1 A   No.  2 Q   Are you not aware, Mr. Marsden, that the Kitwancool  3 have made their own land claim to the Federal  4 Government?  5 A   Yes, I think they -- they put it in.  6 MR. GOLDIE:  All right.  7 THE COURT:  Is it convenient, Mr. Goldie, to adjourn or do you  8 want to carry on for a while?  9 MR. GOLDIE:  No, this is as good a place as any.  I have a  10 couple of more questions on that, but then I'll be  11 going into something much longer.  It's just as easy  12 to cut it off now.  13 MR. GRANT:  My lord, just before — I didn't realize it when I  14 spoke about it.  I think it's Exhibit 4 — the last  15 exhibit, 489.  I wonder if --  16 THE REGISTRAR: 448.  17 MR. GRANT:  Or 448.  I'm sorry.  I wonder if — I thought — I  18 thought my friend had put in the original of the book,  19 which it's got the photographs and everything else  20 clear.  I would suggest that that may be an  21 appropriate exhibit.  When I was speaking, I didn't  22 realize he handed a copy.  23 THE COURT:  Do you have an original copy, Mr. Goldie?  24 MR. GOLDIE:  Well, it's not an original, my lord.  It's one that  25 I bought for $2.25 in the Interior Stationery in  26 Smithers.  27 THE COURT:  I see.  All right.  28 MR. GOLDIE:  I'm happy to donate that.  2 9 THE COURT:  All right.  All right.  How are we getting along  30 between yourself and Mr. Macaulay and re-examination?  31 Can we finish in good time tomorrow or do you want to  32 start early or what do you want to do?  33 MR. GOLDIE:  I think it would be wise if we started early.  34 THE COURT:  Is that convenient to everyone?  35 MR. GRANT:  I just would like to see.  36 MR. GOLDIE:  Yes, always subject to Mr. Marsden's health.  37 THE COURT:  Or we can start at 9:30.  38 MR. GOLDIE:  Yes, maybe 9:30 is better.  39 MR. GRANT:  It's all right with the witness to start at 9:00, my  40 lord.  He appears to be all right today.  41 THE COURT:  Would counsel prefer 9:30?  42 MR. GRANT:  I would -- if it may make a difference, I would  43 prefer nine o'clock.  This witness, as many elders, I  44 think the morning is a better time for him.  He may  45 tire out if we extend it to the end of the day.  4 6 THE COURT:  Yes.  All right.  Mr. Macaulay.  47 MR. MACAULAY:  Where does that leave the next cross-examination? 5981  S. Marsden (for Plaintiffs)  Cross-exam by Mr. Goldie  1 MR. GOLDIE:  Quite a way down the track.  2 MR. GRANT:  That's what I'm wondering.  Do my friends — is  3 that -- are we all engaged in the effort to complete  4 tomorrow?  Is that --  5 MR. GOLDIE:  Well, of course we're engaged in an effort to  6 complete, but I can only go as fast as the witness can  7 go.  8 THE COURT:  Well, I can sit late tomorrow night if necessary.  9 MR. MACAULAY:  Well, there is a point beyond which the witness  10 can't be expected to go on.  11 THE COURT:  Well, we'll adjourn when that point is reached  12 regardless of what time it is.  13 MR. MACAULAY:  I hope the witness understands that because  14 cross-examination when he's exhausted, and it must be  15 an exhausting experience, isn't going to be of much  16 value either to the Plaintiffs or the Defendants or  17 the Court.  18 THE COURT:  Well —  19 MR. GRANT:  My friends, I will advise them of that as well  2 0 tomorrow morning.  21 THE COURT:  We can't do better than start at nine o'clock, and  22 we'll go as long as we can.  23 MR. GRANT:  Will there be a morning matter at ten o'clock?  24 THE COURT:  Yes, there will.  There is another serious problem  25 tomorrow, but that doesn't take long, and if we start  26 at 9:00, we need a bit of a break at 10:00 anyway.  27 All right.  Nine o'clock.  Thank you.  28 THE REGISTRAR:  Order in court.  Court will adjourn until 9:00  29 a.m.  30  31 (PROCEEDINGS ADJOURNED)  32  33 I hereby certify the foregoing to be  34 a true and accurate transcript of the  35 proceedings herein to the best of my  36 skill and ability.  37  38  39  4 0 Leanna Smith  41 Official Reporter  42 United Reporting Service Ltd.  43  44  45  46

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