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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1988-01-05] British Columbia. Supreme Court Jan 5, 1988

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 2165  Vancouver B.C.,  January 5, 1988.  (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT)  THE REGISTRAR:  In the Supreme Court of British Columbia,  Tuesday the 5th day of January, 1988.  Calling  Delgamuukw against Her Majesty the Queen, my lord.  THE COURT:  Excuse me, Mr. Rush.  ALFRED JOSEPH, resumed:  Mr. Joseph, you are still under oath.  1  2  3  4  5  6  7  8  9  10  11  12  13 THE REGISTRAR:  14  15 EXAMINATION IN CHIEF BY MR. RUSH, Continued:  Mr. Joseph, yesterday you had talked of certain areas  within the Wet'suwet'en territories that were  accessible to all Wet'suwet'en people.  I want to ask  you this morning if there were certain places where  there was common hunting by Wet'suwet'en people?  Yes.  Your answer is yes?  Yes.  Okay.  If you could just speak up a little bit, Mr.  Joseph.  And can you tell us where they were?  There is an alpine at the head of the Driftwood Creek  and that's one area that is used by all Wet'suwet'en  people.  :  I am sorry, used by -- ?  All Wet'suwet'en people.  16  Q  17  18  19  20  21  A  22  Q  23  A  24  Q  25  26  A  27  28  29  THE  COURT  30  A  31  MR.  RUSH:  32  Q  33  34  A  35  Q  36  A  37  MR.  RUSH:  38  THE  COURT  39  MR.  RUSH:  40  Q  41  A  42  Q  43  A  44  Q  45  A  46  MR.  RUSH:  or does that area have a  47  And did that area have the  Wet'suwet'en name?  Yes.  It is Wha Deel'tliis biit  Wha Deel'tliis biit?  Yes.  And I believe that's 230.  :  Thank you.  And Mr. Joseph, what was hunted there?  The main thing that was hunted there is the groundhog.  Okay.  And to our people we call it Dutnii.  That's called Dutnii?  Yes.  I have to rely on Mr. Mitchell for that spelling, I  think. 2166  1  THE  TRANS  2  THE  COURT  3  4  5  THE  TRANS  6  THE  COURT  7  THE  TRANS  8  MR.  RUSH:  9  Q  10  A  11  12  13  14  15  16  17  Q  18  19  A  20  21  Q  22  23  A  24  Q  25  A  26  27  Q  28  A  29  Q  30  A  31  Q  32  A  33  34  Q  35  A  36  MR.  RUSH:  37  38  A  39  THE  TRANS  40  41  MR.  RUSH:  42  Q  43  A  44  45  Q  46  MR.  GOLDI  47  MR.  RUSH:  LATOR:  Dutnii, D-u-t-n-i-i.  :  I am awfully sorry, I have difficulty hearing Mr.  Mitchell because he is not facing this way when he  speaks.  LATOR:  Dutnii, D-u-t-n-i-i.  :  Thank you.  No apostrophe?  LATOR:  No.  Mr. Joseph, what was the groundhog used for?  Ground -- groundhog was used in the same way as  beaver, and it was used for clothing for Wet'suwet'en  people for clothes, robes and blankets.  And the meat  was also used by the Wet'suwet'en.  So that it's very  big area, the alpine meadow is very big, so that  people, all Wet'suwet'en go up there about 20th of  August to hunt ground --  What is -- I am sorry.  What is the name, the English  name, if there is one, for that alpine area?  It is -- I think it's the Cronin.  It's in the Cronin  Mountain area.  Okay.  Was there another area where Wet'suwet'en  people had common access to hunt?  Yes.  There is the another area.  And what's that?  It's a mountain north of Morice Lake about midway  point and --  Is that the name of the mountain, Midway Point?  No.  About midway.  Oh, I see.  On Morice Lake.  Yes.  There is a mountain on the north side and our people  call that 1 eez bee'.  1 eez bee'?  Yes.  Now, that's not a word that's spelled, Mr. Mitchell.  I wonder if you could help us with that.  1 eez bee'.  LATOR:  1 eez bee'.  L underline o -- I am sorry.  Start over.  L underline e-e-z b-e-e-'.  Is there an English name for that place?  Yes, there is an English name, but I just don't  remember that English name.  All right.  E:  It isn't 236, is it?  There is on our word list, Mr. Mitchell at 236. 2167  THE  MR.  8 THE  9 THE  10 THE  11  12  13 MR.  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  COURT  RUSH:  COURT  TRANS  COURT  RUSH:  Q  A  Q  A  Q  A  Q  A  Q  A  Q  A  Would  that.  :  I do  witnes  Well,  or the  236 is  :  Yes.  LATOR:  : I wi  you th  you le  you just look to that and if you could pronounce  n't think anyone would mind if you led the  s with the English name,  the -- I am the not sure that the English name  Wet'suwet'en name that is directed or found at  in fact the one that --  It is.  11 leave it with you to straighten out any way  ink.  But I don't think anyone will object if  ad.  Q  A  On our word list, Mr. Joseph, there is a word that is  similar to 1 eez bee' which shows it as the English --  shows the English as being Mount Loring.  Yes, that's --  Does that ring a bell with you?  Yes.  All right.  Thank you very much.  What was hunted  there?  They hunted the goat and caribou.  Okay.  And was there something special about the  caribou and the groundhog that these two animals were  hunted in the two common places you have mentioned?  The caribou again is like all the other animals that  Wet'suwet'en use is also used for clothing like the  skin and the meat and some cases the hoofs, and so  they are all important to the Wet'suwet'en.  And on a  peak there is more -- usually more than one or two  persons needed to take ground -- caribou or goat.  Were there any other areas where there was common  access for hunting that you know of?  There is in the other chief's territories, but this is  the one that I visited and used myself so I knew.  Can you say -- do you know why these areas were common  in use?  Is there something about them that --  Yes.  Like I said before, they are both used for  clothing that which is important to our people and it  is also used for food so that a common -- the  groundhog one, this Wha Deel'tliis biit, it was a  common area, but one thing was made known to the  people that went there, the first one that went that  got there was in charge of the hunt.  The first  hunter.  Okay.  Now, you said there was -- there were other --  Yes. 216?  1  Q  2  A  3  Q  4  A  5  Q  6  A  7  Q  8  9  A  10  Q  11  A  12  Q  13  A  14  Q  15  16  17  18  A  19  20  21  22  23  24  Q  25  26  27  A  28  29  Q  30  A  31 THE  COURT  32  33  34  35  A  36 THE  COURT  37 MR.  RUSH:  38  Q  39  A  40  Q  41  42  43  44  45  A  46  Q  47  -- common areas?  Yes.  Do you know of these areas?  No.  You just know of them?  I know of them.  All right.  Do you know how many other ones there  were?  I knew of one area north of Hazelton.  Was there a Wet'suwet'en area?  No.  No.  It was Gitksan.  It was an area in the G'itnee country?  Yes.  Okay.  Were there any other Wet'suwet'en common areas  that you have known of apart from the two that you  have mentioned?  I am here talking not about the areas  we have referred to yesterday, but the hunting areas.  No.  That's the only two that I have known.  But their  people say that there are other hunting areas, but  they don't need -- they could be three or four people  can go to these places and do their hunting, but at  times there is different areas where there is -- where  they have to take a lot of people to hunt in an area.  In respect of those areas, are the chiefs of those  territories where those areas are located, is their  permission needed?  To get to the area you need to go through some of the  chiefs' territories.  And is their permission needed?  Yes.  :  I am sorry, Mr. Rush, but I would like to be certain  I have it.  Is it your evidence that the permission of  the chiefs of the surrounding territories is necessary  for one to go to the common areas?  Yes.  :  Yes.  Thank you.  And here you're talking about the Wet'suwet'en chiefs?  Yes.  All right.  Now, I am going to ask you about another  area now, Mr. Joseph.  I want to ask you about Bii  wenii Ben, and if you are aware of there being  non-Indian people who own land around the Bii wenii  Ben area, around Owen Lake?  Yes.  And could you just tell his lordship what you know of  in respect of non-Wet'suwet'en people owning land or 1  2  A  3  Q  4  A  5  6  7  8  9  10  11  12  13  14  15  Q  16  17  18  A  19  20  Q  21  22  23  24  A  25  26  27  28  29  30  Q  31  32  A  33  Q  34  35  36  A  37  Q  38  39  A  40  Q  41  42  43  44  A  45  Q  46  A  47  Q  2169  having leases in that area?  There are resorts around Owen Lake.  What kind of resorts are these?  Tourist resorts.  And there is also houses around  there, beach houses.  And some -- there is some mining  operations that I've seen gates with locks on them.  And then there is ranches and logging operations.  And  the ones that I know that lived in around Owen Lake  area, the ones that I have known as a youngster is a  person by the name of Charlie Kelly is one that had a  ranch and then later on sold that to someone else.  Next time I came into the area to visit there was  another person living there and I think his name was  Shortt.  And it keeps changing.  Did you -- did you as Gisdaywa ever give permission  for the people that you have mentioned who own the  resorts or the ranches to own the property there?  No, I have never given any permission, nor has  Gisdaywa before me.  Do you know how many in numbers, how many  non-Wet'suwet'en people, how many people who are not  members of your House have property in the Bii wenii  area?  It's very hard to put numbers on it, because the  people that are living around the lake, the cabins and  then the ranches and then the mining area you can't go  in there and see -- count how many people that are  working there.  But I'd say about a hundred people.  There is a lot of traffic going up and down that road.  You mentioned the road.  Are the roads throughout  Gisdaywa's territory?  Yes.  Have there been roads built in Gisdaywa's territory  during the time that you have held the name of  Gisdaywa?  Yes.  Have you ever given permission to anyone to build  roads in your area?  No.  Have there to your knowledge by members of your House  steps been taken to prevent the building of roads or  to object to the presence of non-members of your house  in your territory?  Yes.  What's that?  My uncle had problems with the ranchers that moved in.  Is this Thomas George? 2170  1  A  2  3  4  5  6  7  8  Q  9  A  10  Q  11  A  12  13  Q  14  A  15  THE  COURT  16  17  MR.  RUSH:  18  19  MR.  GOLDI  20  THE  COURT  21  MR.  RUSH:  22  Q  23  A  24  Q  25  A  26  Q  27  MR.  GOLDI  28  A  29  MR.  GOLDI  30  THE  COURT  31  MR.  GOLDI  32  THE  COURT  33  MR.  RUSH:  34  Q  35  36  37  A  38  MR.  GOLDI  39  40  41  MR.  RUSH:  42  MR.  GOLDI  43  MR.  RUSH:  44  Q  45  A  46  47  Yes.  Thomas George.  And this Charlie Kelly I'm  talking about used to trap around his ranch and then  there was other persons that moved in he had the same  problem with.  So he had to keep reminding them that  they were there as ranchers, not as the hunters or  trappers.  One of the names that he gave me that he  had problems with was a Widen.  Widen.  Widen?  Yes.  Did he go to these people personally?  He had -- yeah, he had -- in the twenties and thirties  he had a homestead around that area.  You are referring to Widen?  Yes.  :  I don't imagine there is an agreement between  counsel as to how that's spelled.  I think it's W-e-d-o-n.  I don't know if it's an  agreement.  I am not sure.  E:  First I have heard of him.  :  Yes.  Thank you.  Do you know how this person's name is spelled?  W-i-d-e-n.  Again?  W-i-d-e-n.  And you --  E:  W-i-d-e-n?  e-n.  E:  Yes, I have seen that.  :  W-i-d-e-n?  E:  Yes.  :  All right.  And you say, Mr. Joseph, that your Uncle Thomas George  raised the question of their ranching to these people  directly?  Yes.  E:  I thought he said remind them that they were there  as ranchers, not as trappers or hunters.  That's what  he said.  That's one of the things he said.  E:  He didn't say the rest.  What is your evidence about that, Mr. --  Well, he -- my uncle said because later on when Mr.  Widen moved -- moved to another location, he was still  my uncle's neighbour, so that's why he told me about 1  2  3  4  5  6  Q  7  A  8  Q  9  A  10  Q  11  A  12  Q  13  A  14  Q  15  16  17  18  19  20  A  21  Q  22  23  A  24  25  26  27  28  29  30  31  32  33  34  35  36  37  Q  38  39  A  40  Q  41  A  42  43  44  45  Q  46  A  47  Q  2171  that, that he had problems with him on his territory.  He's my neighbour again now, but he has a farm east of  of my place now is what he told me.  But he had  problems with him when he was living at Owen Lake that  he was trapping on his territory.  Who was trapping on?  Widen was.  Widen was trapping on --  Yes.  -- your grand -- on your uncle's territory?  Yes.  And that's why he raised it?  Yes.  I see.  Mr. Joseph, I want to ask you about the  subject you discussed briefly yesterday in your  testimony in which I neglected to ask you concerning  your carving, and I wanted to ask you if you when you  were carving poles whether you used certain types of  tools, certain specific types of tools?  Yes.  And was there some special tool that was used by you  when you carved?  Yes.  You have to have different tools and these tools  were used by our people in the past and the design is  that you can use it -- you have to have a certain  angle on it, then you also have to have different ways  of filing the blade.  And they were designed after the  stone or bone tools that our people used before.  They  cut -- made the same cuts, so that when you are using  an elbow adz, you just go to a certain depth before  you start using your knife.  And the same if you are  cutting cross grain, your blades are different.  Then  there is different sorts of adz.  There is elbow adz  and then there is the D shaped adz which you use to  sort of texture it, the flat surfaces or the round  surfaces.  Were you told about these tools and types of tools by  your grandparents and parents?  Yes.  Or other elders who passed on?  When they -- when I asked questions on how the poles  were carved, my grandparents told me that they -- this  is the sort of axe that they use and they give me a  name for it.  So I knew the name of these tools.  Did you -- is that a Wet'suwet'en name?  Yes.  What is that? 2172  1  A  2  Q  3  4  A  5  Q  6  7  A  8  9  10  11  12  13  MR.  RUSH:  14  15  THE  TRANS  16  THE  COURT  17  THE  TRANS  18  MR.  RUSH:  19  Q  20  A  21  22  23  Q  24  A  25  Q  26  A  27  Q  28  29  30  31  A  32  Q  33  34  35  A  36  37  38  39  40  41  42  Q  43  A  44  Q  45  46  A  47  MR.  RUSH:  An elbow adz is T'se yuk' T'sel.  When you describe the tool as an elbow adz, does that  describe the way it is used when you carve?  Yes.  Can you just show us?  Do you use your elbow as a  brace?  No.  You just hold it.  It's -- the handle is about a  foot long and the blade is tied with -- that has to  have a certain angle and the blade has to be cut,  filed a certain way, and you just use it straight  down.  That's what it -- that's what the name means,  an axe that's used straight down.  Mr. Mitchell, do you have the spelling for that,  please?  LATOR:  T'se yuk' T'sel, T-'.  :  Sorry.  Couldn't hear the first letter.  LATOR:  T-'-s-e y-u-k-' T-'-s-e-l underlined.  Thank you.  Were you told of other adz by your grandparents?  That was the main tool, but the other adz that I was  told about was the one that I don't know the name of.  The D adz.  The D adz?  Yeah, the D adz.  It's shaped like a D.  And that is used by you when carving?  Yes.  All right.  Mr. Joseph, I would like to ask you now  about another subject, the subject of spirituality,  and ask you if there are common spiritual beliefs  shared by Wet'suwet'en people?  Yes.  And can you tell his lordship what spiritual beliefs  there are among the Wet'suwet'en people that play a  part in Wet'suwet'en life?  Yes, there is a belief among our people that was  referred to in our legends, legends that were told  about the past before the coming of white people and  one -- the one -- one of the most important ones and  one that always told to us every day is to remind us  that we are here because of one person and they  referred to that person as Hudagghi.  Hudagghi?  Yes.  And what -- is there a description or a meaning that  that person has?  Hudagghi means someone way -- that is higher up.  Spell that for us, Mr. Mitchell. 2173  1 THE  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR.  MR.  A  Q  A  RUSH:  Q  A  TRANSLATOR:  Hudagghi, H-u-d-a-g-g-h-i.  RUSH:  Thank you.  Q   And how did Hudagghi play a role in Wet'suwet'en  beliefs?  A   They always thanked him for -- for the things that  they got to keep us alive.  They thanked him even if  they had a drink of water and they also thanked him  for anything that they got from hunting, any animal  that they killed was all from this being.  And they  also did the same with any living thing, any animal.  They thanked the same thing as a gift from Hudagghi.  Q   Is Hudagghi the spiritual power that is believed today  by the Wet'suwet'en?  Yes.  Do you know the term Habo'ts at?  Yes.  That, I think, my lord, is found at 315.  What is Habo'ts at, Mr. Joseph, and how does Habo'ts  at play a role in the spiritual beliefs of  Wet'suwet'en people?  Habo'ts at is two ways you can use the word.  Habo'ts  at means -- means that they are -- they go through a  ceremony and Hodi't sat is the same thing.  You can  say it both ways.  Q   There are two ways of saying?  A   Yes.  Habo'ts at means they -- they went through the  ceremony.  Hodi't sat is the same word, but is when  they say that it could be that animal or the young  person went through the ceremony.  This Hodi' t sat is  used both for protection of your property and also you  want a young newborn baby to be a good hunter, a  strong hunter, they go through that ceremony.  And  it's also used for your hunting dog.  They do the same  to that.  They go through a ceremony.  Q   With the dogs?  A  With the dog, yes.  Q   Is that to increase the dog's power in some way?  A   Yes.  The -- a dog is a very important to the hunt --  to our people.  And when they do -- when they go  through the ceremony with their dog, when it's a pup,  that dog could be a good -- good dog for hunting  birds, and it could be a good dog for hunting bears or  any good tracking dog are all different.  You can't  have -- do just one ceremony for all the dogs.  You  have to have different qualities for each dog or  each -- same with the human baby.  They are -- they  are -- they go through the ceremony, different 2174  1 ceremonies of that sort.  2 Q   Okay.  Now, you referred to two words and I think they  3 are spelled differently, but maybe you can tell me.  4 You referred first to Habo'ts at?  5 A   Habo'ts at.  6 Q   Yes.  And then you referred to Hodi'ts at?  7 A   Yes.  8 Q   Are the words spelled differently?  9 A   Yes.  10 THE TRANSLATOR:  Yes.  11 MR. RUSH:  Okay.  We spelled the first one, Mr. Mitchell.  12 What's the spelling of the second one, please?  13 THE TRANSLATOR:  Hodi't sat, H-o-d-i-t — sorry, start all over.  14 H-o-d-i-'t s-a-t.  15 MR. RUSH:  16 Q   Now, the beliefs of the Habo'ts at and its power and  17 Hodi't sat, are they followed among the Wet'suwet'en  18 people today?  19 A   Yes.  20 Q   Are there beliefs among Wet'suwet'en people relating  21 to reincarnation?  22 A   Yes.  23 Q   And what is your understanding of that belief?  24 A  Well, when the -- in some cases the -- some of the  25 young people say something or do something and the  26 elder, the aunts will say, well, it's this person that  27 has some back.  You are -- you have a trait and that's  28 recognizable by an elder.  You yourself won't know it,  29 but you have some thing, some qualities and it is  30 recognized by other elders.  And at times when you do  31 something as a youngster I heard that many times, "I  32 did something," and did or said something that  33 belonged to another clan from a different clan  34 altogether.  And they jokingly say to me, but then it  35 is meant when you inherit some trait or quality,  36 skill, you -- they call it Haneegidiisilai, but if you  37 inherit some other clan's trait they say 1 guunii be  38 Haneegidiisilai.  So that is something that's always  39 been said by our people.  40 Q   And that was said to you?  41 A   Yes.  They say, "You have inherited someone's else's  42 trait."  43 Q   And is that what the difference between the two  44 Wet'suwet'en expressions is?  45 A   Yes.  46 Q   That —  47 A   Yes. 1  Q  2  3  A  4  Q  5  A  6  Q  7  A  8  Q  9  A  0  Q  1  2  A  3  4  Q  5  A  6  7 MR.  RUS1  2175  And that would sometimes have been said to you in a  joking manner by --  Yes.  -- relatives of yours?  Yes.  In the sense that you inherited a trait --  Yes.  -- from some other clan?  Some other clan.  So -- but --  Would you just give us those two expressions again so  Mr. Mitchell can record them?  If I inherited my own people's trait it's -- they  would say Haneegidiisilai.  Haneegidiisilai.  And the second of the two expressions, Mr. Joseph?  It's the same word except you have the got 1 guunii be  is someone else's.  Do you have the second of the two?  18 THE TRANSLATOR:  Yes.  19 MR. RUSH:  Go ahead.  20 THE TRANSLATOR:  Haneegidiisilai, H-a-n-e-e-g-i-d-i-i-s-i-1-a-i.  21 And the second one 1 guunii be, 1 underlined  22 g-u-u-n-i-i b-e, and then the first word that I  23 spelled.  Do Wet'suwet'en people believe in reincarnation today?  Yes.  Are there beliefs about the -- are there beliefs among  Wet'suwet'en people about the ability of people to  foretell future?  Yes.  What knowledge do you have of that?  Well, as you grow up in a village where all  Wet'suwet'en live and where there is elders, all the  elders from every clan live together, you are always  in contact with these people every day, because you --  there is no -- no water, running water.  Things like  that you have to do for them.  And as you do that you  help a blind person or an elder, they say you helping  me with anything that I need, anything that I can't  do.  If you keep this -- they say that I have had this  feeling about you since you worked -- helped me.  I  have this inner feeling and my voice tells me that you  will be around for a long time.  And that feeling that  they get is amongst all our people when it is  described is if they are making -- they get this  feeling about something that's going to take place,  they say Wa ghe 'at nii.  2 4 MR.  RUSH  25  Q  26  A  27  Q  28  29  30  A  31  Q  32  A  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 2176  1 Q   What does that mean?  2 A  Wa ghe 'at nii is they come up with a breath from deep  3 within.  They have -- they make some different noise  4 with their breath that you can hear and when you hear  5 that you know that they are -- it is something about  6 me as a person or they may be -- they may be thinking  7 of someone else, but they themselves know that this  8 person is -- if I was going hunting and they made that  9 noise, they would say, "Well, you are going to be all  10 right, because I had this feeling about you."  But if  11 there is something else wrong they would say, "Well, I  12 suggest that you don't go."  There is -- it's  13 happening today at home and areas -- other  14 Wet'suwet'en areas you always -- our people always  15 talk about that.  16 Q   Are there special people who have this power or does  17 everyone have the power?  18 A   It's -- that feeling is amongst all our people, but  19 some of them don't -- don't know that they have that  2 0 power.  21 Q   And do some people know that they have that power?  22 A   Yes.  23 Q   And is this belief in the power, is that held among  24 the Wet'suwet'en people today?  25 A   Yes.  26 THE COURT:  I didn't get the spelling of that.  27 MR. RUSH:  Yes.  Just now I was going to ask Mr. Mitchell.  28 THE TRANSLATOR:  Wa ghe 'at nii, W-a g-h-e '-a-t n-i-i.  2 9 MR. RUSH:  30 Q   Now, the power that you have just described about an  31 ability to look into the future, is that related to a  32 belief in the power of people to see into the future  33 in their dreams?  34 A   Yes.  35 Q   And is there a belief among Wet'suwet'en people of a  36 power to see to the future through dreaming?  37 A   Yes.  38 Q   And could you just tell his lordship briefly what your  39 knowledge is of that?  40 A   That is another one is they are known as Na na leel.  41 Q   Yes.  And what does that mean?  42 A   They are the ones that speak up their dreams and  43 interpret them.  44 Q   Are there special people who do that?  45 A   Yes.  4 6 Q   And what about their dreams that is important?  47 A   That is the same as the first one I told about.  Na na 2177  1 leel.  But if they dream about a person or the hunt  2 been good, they tell you right now and there is a word  3 for that.  4 MR. RUSH:   I think we'll have the first word that you just  5 mentioned a few moments ago regarding ability to  6 dream.  7 THE TRANSLATOR, Na na leel, N-a-n-a 1-e-e-l.  8 MR. RUSH:  9 Q   And now, Mr. Joseph --  10 A   If they have a dream, bad dream about you, they may  11 tell you or they may tell your relatives if you are  12 not around, but if they told you themselves, they'd  13 say -- first thing they'd tell you is Dzah ngiitlte'.  14 Q   What does that mean?  15 A   I had a bad dream about you.  16 Q   Has that ever been said about you or to you?  17 A   I heard it on the phone once.  18 Q   Did you govern yourself differently as a result of  19 hearing that?  20 A   Yes.  I was out of the country and I heard that about  21 me.  22 Q   And you changed the way that you --  23 A   Yes.  24 Q   -- conducted yourself?  25 A   Yes.  26 MR. RUSH:   Okay.  What's the spelling of that, Mr. Mitchell?  27 THE COURT:  I am sorry, Mr. Rush, but I think you have got two  28 blanks -- I am sorry, I think we have only got one  29 blank, but I am not sure what this word is.  Is this  30 the word -- no, I am sorry.  I do have two blanks.  I  31 have a note that if they have a good dream they tell  32 you right away.  If they have a bad dream they may  33 tell you or your relatives.  If they tell you they say  34 some word.  35 MR. RUSH:  And I think that's the second of the two words, my  36 lord, and that is I think what Mr. Mitchell was just  37 going to spell.  38 MR. MITCHELL:  Dzah ngiitlte', D-z-a-h n-g-i-i-t-1-t-e-'  39 MR. RUSH:  And then there was a word used by Mr. Joseph just  40 before that which you have spelled which was --  41 perhaps you could just pronounce it for me, Mr.  42 Mitchell, Nana leel.  43 THE TRANSLATOR:  Nana leel.  4 4 MR. RUSH:  45 Q   And that is the person with that dreaming power?  46 A   Yes.  Yes.  47 THE COURT:  Have I got that last one spelled correctly, D-z-a-h 217?  1  2  THE  TRANS  3  THE  COURT  4  THE  TRANS  5  THE  COURT  6  7  THE  TRANS  8  THE  COURT  9  MR.  RUSH:  10  Q  11  12  13  14  15  16  A  17  Q  18  19  20  A  21  Q  22  23  24  A  25  Q  26  27  A  28  29  30  Q  31  A  32  Q  33  A  34  Q  35  36  A  37  Q  38  39  A  40  Q  41  A  42  Q  43  A  44  45  46  47  Could I have it  o-g-i-i-t-1-l-t-e.  LATOR:  No.  It's D-z-a-h n-g-i-i-t-1-t-e  :  n-g.  Thank you.  LATOR:  t-l-t-e-'.  :  I haven't got it right at all  again, please?  LATOR:  D-z-a-h n-g-i-i-t-1-t-e'.  :  Thank you.  Mr. Joseph, I wanted to ask you about something you  referred to a moment ago.  You said there were certain  breath sounds that were indicated by certain people  and is there a belief by Wet'suwet'en people that  those people and those sounds have certain spiritual  power?  Yes.  And it's -- when you were referring to those sounds,  the breath sounds, were you referring to the ability  of those people to look into the future?  Yes.  And is it -- is it a belief among Wet'suwet'en people  that's held among those people that the person with  that power is able to predict things in the future?  Yes.  Okay.  And have you had experience of that yourself  directly?  I was -- I had to go through a ceremony not from the  breath power but from a dream.  I had to go through  ceremony.  You did?  Yes.  In respect of it?  Yes.  Okay.  But that you say is not in respect of the  breath power?  No.  No.  Do you have -- you have knowledge about others who  have --  Yes.  -- experienced that power?  Yes.  Okay.  That breath power is also -- it's used when you are --  a person gets sick, you are in hospital and someone  visits you and says -- and when they look at you or  shake your hand they say, "I have this breath about  you that you are going to be all right," so they say, 2179  1 "Don't worry."  2 Q   Has that happened to you?  Have people done that to  3 you?  4 A   Yes.  5 MR. RUSH:  My lord, this appears to be the completion of my  6 direct-examination, and I would like to take a break  7 now, perhaps the morning break early and allow me to  8 review my notes to see if there is anything further.  9 THE COURT:  All right.  How long do you think you would like to  10 have?  11 MR. RUSH:  Our normal break.  12  13 (PROCEEDINGS ADJOURNED PURSUANT TO MORNING BREAK)  14  15  16  17  18 I hereby certify the foregoing to be  19 a true and accurate transcript of the  20 proceedings herein to the best of my  21 skill and ability.  22  23  24  25 Laara Yardley,  26 Official Reporter,  27 United Reporting Service Ltd.  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 2180  1 (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT)  2  3 ALFRED JOSEPH, RESUMED:  4  5 THE COURT:  Mr. Rush.  6 MR. RUSH:  Thank you.  I have one further series of questions.  7 THE COURT:  All right.  8 EXAMINATION IN CHIEF BY MR. RUSH CONTINUED:  9 Q   Mr. Joseph, is there a belief among Wet'suwet'en  10 people in the power of spiritual healing?  11 A   Yes.  12 Q   And have you had experience with this yourself?  13 A   Yes.  14 Q   And what is that?  15 A   It is -- our people say that whenever you are  16 frightened or something happens that you lose your  17 strength, inner strength, and you are -- you could get  18 sick.  And they speak of something like a shock.  If  19 that's not -- if that's not dealt with right away you  20 become sick.  To me -- my experience in that area is  21 that I -- when I started carving I was carving on my  22 own for about three years and after that I got formal  23 instruction.  My -- the tools that I started using  24 were like the old tools made by our -- used by our  25 ancestors, and it made my work more interesting, and I  26 was more excited about the whole thing that I  27 worked -- I had worked deep into the night on my own.  28 And this happen at Ksan.  I was told not to work alone  29 up until at night because they said there's an old  30 grave site nearby.  And I must have forgot it.  So I  31 work this one night all by myself, and there was  32 somebody had a radio -- a TV there which he was trying  33 to fix so he had to plug it in.  And I could hear the  34 music going.  And while I was carving I started  35 hearing this whistle.  And the whistle is used by our  36 people, the secret society, is the same as the whistle  37 that are used on the West Coast.  They are wide use.  38 And they are very -- some of our healers used it.  And  39 I heard those whistles as a young boy around  40 Hagwilget.  41 Q   Is this what you heard that night?  42 A   Yes.  43 Q   Yes.  44 A   I heard this whistle.  I thought it was coming from  45 the TV so I ignored it.  When it started getting  46 louder I got up and watch, see if there was anything  47 on TV that was doing the noise, but it wasn't.  The 2181  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR.  MR.  THE  MR.  MR.  Q  A  RUSH:  A  RUSH:  COURT  RUSH:  GOLDI  noise got louder so I went back in my chair and  started listening more closely.  And as it got louder  the door started to shake as if strong wind hit the  door, so that's when it really got to me.  So I jumped  up and grabbed my coat.  And my car was parked  outside.  I started the car up and I had -- it was  moonlight, wintertime, could see for miles.  So I  thought maybe somebody's scaring me.  So I went round  the building.  I went right around the building.  There was no one there.  But the whistle stopped so I  went home.  Got home around two o'clock in the  morning.  And next morning I told my wife about it.  She said you better go and see -- see the elder that  lives close by that has those powers that he dreams  and he has this voice power.  So I went to see him.  And he was deaf, but his daughter could communicate  with him.  So he was -- his daughter told him what  happened to me.  And he didn't say a word.  He just  laid there smoking his pipe and looking at me.  Finally when he finished his pipe, smoking it, he  called me over and said, "Sit over here."  So I went  over and sat down.  And then he just felt all over; my  head, my hair, and then did -- went -- he touched my  head and blew on a -- and said a few words to himself  and then said, "Okay.  Sit down over here."  And he  looked at me and he said, "You are strong."  He said,  "Nothing touched you so you have the power to resist  whatever came after you so you will be all right."  And if I didn't hear those words I don't think I would  have -- I would have been -- I would have been in  doubt, but when he told me that and I felt pretty good  about it and just kept on working.  And did you carry on later with your carving?  Yes.  Thank you.  Yes.  Those are my questions, Mr. Joseph.  Thank you.  :  Thank you.  Thank you, my lord.  E:  My lord, I have a couple of preliminary points.  Your lordship may recall that on the 23rd of June you  made a ruling with respect to Mr. Joseph's evidence,  and I'm quoting from the transcript at page 1675.  That the admissibility of certain of that evidence  would stand only if he, that is Mr. Rush, "undertakes  to either call the witnesses or furnish affidavits  from them and, if requested, produce those witnesses 2182  1 for cross-examination."  And later your lordship at  2 page 1678 said, "if the affidavits are not filed the  3 evidence won't be considered."  4  5 The kind of evidence that was being referred to,  6 and I'm using this just as an example, is where Mr.  7 Joseph was quoting other informants with respect to  8 particular geographical points which were of  9 significance.  And the example that I have here is  10 from volume 25, page 1696, and this starts at line 25.  11  12 "Q Okay.  And could you see Driftwood Creek  13 from your vantage point?  14 A You could see the valley of Gyologyet.  15 Q Okay."  16  17 That is to say Bazil Michell who's living and  18 available.  19  20 "Q Did he point out anything else to you from  21 that point?"  22  23 And then the question and answer goes down.  24  25 "Q Did you know the English name for the basin?  26 A I think it's the Silver King, I'm not too  27 sure.  28 Q Known as the Silver King basin?  29 A Yes.  30 Q Did Bazil give you a Wet'suwet'en name for  31 that basin?  32 A He said that was called Wha deel 'tliis biit  33 peak."  34  35 That's the example of what I'm talking about.  I  36 would like to know to what extent my friend is going  37 to comply with your lordship's ruling, although at a  38 later point you doubted even that was an appropriate  39 ruling, but nevertheless that was the ruling made at  40 the time, because I don't want to cross-examine on  41 evidence that is inadmissible.  That's my first point,  42 my lord.  43 THE COURT:  What you are asking your friend to do is to indicate  44 whether he proposes to adduce supporting evidence, if  45 I can call it that, for --  46 MR. GOLDIE:  Yes.  47 THE COURT:  -- Some of the evidence that was given by the 2183  1 chiefs?  2 MR. GOLDIE:  It's my friend's choice of course.  If he doesn't  3 wish to do that then I won't bother cross-examining on  4 that evidence.  I have --  5 MR. RUSH:  I'm happy to answer that now.  6 THE COURT:  Yes.  7 MR. RUSH:  I should say that this is the first that my friend  8 has raised with me about this issue.  I would have  9 been happy to advise of our position earlier if we had  10 been asked.  11 MR. GOLDIE:  I don't have to ask, my lord.  12 THE COURT:  No.  Not at all.  13 MR. RUSH:  I'm happy to advise the court and my learned friend  14 that we do intend to file affidavits.  They're being  15 produced.  And the consideration that we have was  16 whether an affidavit should fall into the category of  17 affidavits that would support the evidence given by  18 Mr. Joseph or would they be part of territorial  19 affidavits that would otherwise be filed.  So it's  20 part of our total consideration in terms of filing the  21 Wet'suwet'en territorial affidavit.  So the answer to  22 my friend is yes.  23 THE COURT:  Excuse me, Mr. Goldie.  Your friend's response makes  24 it your choice as to whether you cross-examine or not.  25 MR. GOLDIE:  I should like to know what affidavits are being  26 filed and by whom.  This is what dictates the choice.  27 If my friend is saying that he's filing an affidavit  28 of Bazil Michell then I know that I need not examine  29 Mr. Joseph on that.  There will be an opportunity of  30 examining Mr. Michell.  And, of course, I should have  31 those affidavits before I complete my  32 cross-examination of Mr. Joseph because there may be  33 some aspects of those affidavits which I wish to  34 cross-examine him on if they are in support of his  35 evidence.  36 MR. RUSH:  There is the very reason why my learned friend ought  37 to have advised me before today, because I want the  38 cross-examination to proceed.  And had he informed me  39 that he wanted to see these affidavits then we would  40 have put that as a matter of priority.  And now we  41 hear today that my friend wants these for purposes of  42 cross.  43 MR. GOLDIE:  Well, of course.  44 MR. RUSH:  Well not of course.  In my respectful submission, my  45 lord, it's part and parcel of a scheduling problem  46 that we have with our people who are working in  47 Smithers and with the staff of the chiefs here in 2184  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19 THE  2 0 MR.  21  22  23  24  25 THE  26  27  28  29  3 0 MR.  31  32  33  34 THE COURT  35  36  37  3 8 MR. GOLDI  39  40  41 MR. RUSH:  42  43  44  THE  4 5 MR.  46  47  Vancouver, dividing ourselves between two places, and  it's not something we can snap our fingers at and  produce at my friend's indication.  And I say this  with regard to Bazil Michell, if that is the  particular affidavit my friend is worried about, yes,  we will be filing an affidavit of Bazil Michell.  I am  happy to look at the other persons who informed Mr.  Joseph about the evidence that he gave, and I will  tell my learned friend after lunch, I think, whether  or not we will file affidavits of those specific  people in relation to that specific information passed  on to Mr. Joseph or whether they will form part of  territorial affidavits relating to other territories.  And I'm happy to do that.  Whether we can produce them  for my friend's cross-examination I can say now that  we can't produce all of those affidavits.  I'm not  sure which ones we can produce.  I think we can  produce some.  COURT:  You mean produce during the course of this?  RUSH:  During the cross-examination.  Because I think that  there is some importance to moving ahead with the  cross-examination.  And I would like to have had these  affidavits if they were of my friend's concern in his  cross to him.  COURT:  I think, Mr. Goldie, that I can't do better than  leave it down on the basis Mr. Rush has mentioned.  At  some point you may have to ask that the witness be  stood down, and I'll have to deal with that at the  time.  GOLDIE:  I don't have any problem with that, my lord.  I  would have -- I would have thought that my friend was  concerned with determining which of his evidence was  going to be admissible.  :  I would not like to leave it understood or  misunderstood that I'm saying that the witness will  necessarily be stood down.  That's a matter I'll have  to deal with when the time comes.  E:  Yes, it will.  My friend tells me that he's going  to be giving me some information after lunch.  Presumably providing me with some of the affidavits.  I don't want the moment to pass, my lord, without  putting on the record that I do have concerns about  the witness being stood down.  COURT:  I would expect that.  RUSH:  And if the witness were a resident of Vancouver I  don't think I would make the pitches that I would have  to make, but I have very serious concerns about our 2185  1 witness scheduling.  And I want the court to know that  2 witnesses are being to the best of our ability  3 scheduled into Vancouver on what we see as our best  4 guess of how they will be called.  And we can't keep  5 witnesses in Vancouver.  Thank you, my lord.  6 MR. GOLDIE:  My next comment will indicate the nature of my  7 friend's concern for complying with the requests that  8 I have made.  I have made requests of my friend for  9 documents.  I have made specific reference to this  10 witness.  I was informed in June of last year, June  11 the 18th, and this is in respect of inquiries that I  12 had made about the April the 6th, 1986 All Clans  13 Feast.  It had emerged from an expert's report that we  14 were given that there had been such a feast.  And it  15 had emerged from that expert's report that there was a  16 transcript of that feast.  And we asked for production  17 of that and it was produced.  18  19 I subsequently asked if there was any further  20 feasts, and my friend advised me in June the 18th, and  21 I hope from his letter I can advise that there was a  22 second All Clan Feast hosted by the Carrier-Sekani  23 April 4th and 5th, 1987.  24  25 "We are not in possession of any video tapes or  26 transcripts of this feast.  I do not know if there  27 are any photographs of the feast.  If there were  2 8 and as to any documents that might be in the  29 possession of the Gitksan and Wet'suwet'en  30 participants in this feast we claim privilege for  31 them."  32  33 And then my friend made a further reference to a  34 request that we had made, and made sometime before.  35  36 "As to your request for the documents referred to  37 by Mr. Sterritt in the talk in which he gave in  38 Victoria in 1983 we are presently reviewing that  39 talk and the documents referred to therein and  40 will get back to you shortly regarding these."  41  42 Then on June the 24th I wrote to my friend, and  43 this was when we were still in Smithers.  44  45 "Re:  Alfred Joseph  46 I expect to refer to the trapline material  47 identified on list of documents under number 2186  1 1276."  2  3 And then I give a number of the traplines.  And I  4 continue.  5  6 "The video of the All Clan Feast in April 1986  7 reveals maps on the wall of the room in which the  8 feast took place.  Mr. Victor Jim refers to these  9 at page eight of the transcript you furnished me.  10 They depict the internal boundaries of the claims  11 area.  I would appreciate the immediate production  12 of these maps."  13  14 Now, the next event was an application before your  15 lordship which was heard on July the 31st.  And in the  16 course of that reference was raised, and that was  17 raised because of the reference to privilege in the  18 letter that I've just read to your lordship.  In the  19 transcript of that application your lordship said  20 this -- I don't know that there's a page number, but  21 it's the transcript of July 31st.  Your lordship said;  22  23 "With respect to the All Clan Feast I accept Mr.  24 Rush's assurance that he will search out and list  25 the documents that relate to the All Clan Feast  26 held in April this year and I will leave it to him  27 to advance a proper claim for privilege, if any,  28 with respect to those documents."  29  30 On September the 8th -- and a direction to that  31 effect was embodied in the formal order.  32  33 Then on September the 8th Mr. Mackenzie wrote to  34 Mr. Rush and he said I enclose a draft order of the  35 Honorable The Chief Justice dated July 31 for your  36 signature and an affidavit of Mr. Muldoe sworn May  37 6th, 1987.  And then he quoted the excerpt from the  38 proceedings on July 1st that I've just read to your  39 lordship, and after quoting that he said, and I quote  40 from his letter;  41  42 "Please advise us of the results of your search for  43 the documents relating to the April All Clan Feast  44 and other feasts of the same category as directed  45 By The Chief Justice.  46  47 On this latter topic, I direct your attention to 2187  1 Exhibit 'A' to the enclosed Affidavit of Ken  2 Muldoe sworn May 6th, 1987.  At page seven,  3 paragraph 19, Mr. Muldoe refers to several All  4 Clan Feasts, including feasts in June 1986, and  5 February and March 1987.  6  7 In accordance with the Chief Justice's direction  8 on July 31, 1987, therefore, I request that you  9 research and disclose all documents in your  10 clients' possession relating to these and other  11 All Clan Feasts whether or not mentioned in Mr.  12 Muldoe's affidavit."  13  14 Then on November 9th of Mr. Mackenzie wrote to Mr.  15 Grant saying I enclose a copy of my letter to Mr. Rush  16 of September 8, a copy of my letter to you of October  17 1st, and an affidavit of Ken Muldoe of May 6th.  18  19 "Since I have had no response to my letters to Mr.  20 Rush of September 8 and to you October 1, I am  21 writing at this time to inquire about your  22 progress in the search for All Clan Feast  23 documents as referred to in the Order of the Chief  24 Justice dated July 31st, 1987 and as discussed in  25 the above-noted letters.  26  27 For your assistance, the All Clans Feasts of which  28 I am presently aware with respect to which we have  29 not yet seen any documents are as follows:  30  31 (1) April 4 and 5, 1987."  32  33 And your lordship will recall that Mr. Joseph has  34 given evidence on that.  35  36 "(2) June, 1986;  37 (3) February, 1987; and.  38 (4) March, 1987."  39  40 And he referred once again to the direction and  41 the excerpt from the transcript to which I have  42 referred.  43  44 "Please confirm that you are searching for such  45 documents and that if any such exist, you will  46 advise us preferably before the forthcoming  47 depositions of Plaintiffs' witnesses. 2188  1 I ask for the courtesy of an immediate reply."  2  3 And then I next refer to Miss Sigurdson's letter  4 of December 14th, 1987 requesting that we be provided  5 with copies of the following documents, and then  6 there's a listing of documents from the plaintiff's  7 lists of documents one to nine, to documents from  8 Plaintiffs informal list of documents re Bob Galois  9 document list, and then paragraph numbered three, and  10 I quote;  11  12 "There are a number of outstanding requests for  13 documents.  We repeated our requests that you  14 provide us with copies of the following  15 documents:"  16  17 And then the numbers are listed.  18  19 "The above list of documents does not represent all  20 of the outstanding requests for documents and does  21 not constitute a withdrawal of our request for any  22 document previously requested but not referred to  2 3 above.  24  25 In your letter of November 20th, 1987, you  26 indicated that you are unable to provide us with  27 copies of audio and video tapes as you did not  28 have sufficient funds to arrange for copies to be  29 made.  We are prepared to pay the reasonable costs  30 of copying these video and audio tapes in advance  31 if required.  Could you provide us with a  32 quotation of the price to make copies of  33 documents..."  34  35 And then that paragraph concludes with these  36 words, and I quote;  37  38 "As some of these documents may be relevant to the  39 commission evidence of Stanley Williams we would  40 appreciate your expediting delivery of same as  41 soon as possible."  42  43 Continuing.  44  45 "I note that document 5641 is marked map 2 of 2,  46 fishing sites of Antgulilbix.  Please, provide us  47 with map 1 of 2, fishing sites of Antgulilbix. 2189  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25 THE  2 6 MR.  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  COURT  GRANT  Finally, in his letter of June 24, 1987, Mr.  Goldie asked for the production of the map  referred to in the All Clans Feast of April, 1986.  We have not yet received the map and we repeat  herein our request for its production."  My lord, these, all the letters which I have read,  were given to my friend yesterday.  And the covering  letter said, and I quote;  "Of the foregoing, the requests with respect to  maps and documents displayed at or relating to All  Clan Feasts are critical.  Mr. Joseph's  cross-examination cannot be completed without  them."  I should add one further thing.  That the map  which is clearly depicted in the video of the All Clan  Feast of 1986 appears to be the same map as is in an  office in which Mr. Ryan is photographed in a video  production called On Indian Land, which is listed as a  document in my friends' productions.  I think that  speaks for itself, my lord.  And we have not received  those which I have requested.  :  Mr. Grant.  :  Maybe I should deal with this, my lord.  I must  express some surprise, because yesterday after the  lunch hour at two o'clock my friend did provide us  with a copy of the letter with all of these attached.  And the opening of his letter, to paraphrase, was that  this is matters that we can deal with without the  assistance of the court.  I reviewed these with -- all  of these correspondence with Mr. Rush and with my  office and I'm prepared to deal with all of them in  front of the court.  I also advised my friend this  morning I gave him some correspondence relating to  some of the matters he raised.  I advised him this  morning on all of the outstanding matters I was in  touch with my office and they were all in process and  he could expect answers very shortly on all of those  matters.  Now, firstly, with respect to the All Clans Feast,  that was not made part of the order, but it was an  assurance given by Mr. Rush and so it's not in the  order itself because we said it wasn't part of the  court's order.  There was an understanding though, and 2190  1 in order to undertake that process, my lord, we had to  2 contact not only our clients who were present, but  3 other people who are outside of the Province and  4 outside of the country, and it's been a time consuming  5 process.  In any event, there is one set of notes for  6 that feast -- there are two sets of notes for that  7 feast.  One set was made on our instructions and we'll  8 claim privilege on them, and the other set is a set  9 which we are disclosing.  I should say there are three  10 sets of notes because on September 3rd of this year  11 there were notes of Alfred Joseph which were delivered  12 to my friend together with photos of the April 4th,  13 1987 feast.  So he has substantially what there is,  14 and —  15 MR. GOLDIE:  Excuse me.  I don't think we have received those.  16 MR. GRANT:  The letter of September 3rd came out of my office.  17 I delivered it on September 3rd to Mr. Goldie together  18 with photographs.  That's a file copy.  19 MR. GOLDIE:  I'm sorry.  We haven't — I'm sorry.  That's not a  20 letter I'm familiar with.  21 MR. GRANT:  My friend may wish to consult with his associates at  22 the lunch break about this.  23 MR. GOLDIE:  Well, I'm advised by Mr. Plant that he's not seen  24 it.  We will certainly inquire at my office.  If I  25 could have copies of that that would be very helpful,  26 of the material and the letter, please.  27 MR. GRANT:  Yes, we will arrange for copies.  That's my file  2 8 copy.  29 MR. GOLDIE:  Yes, I understand.  30 MR. GRANT:  We'll arrange for that, Mr. Goldie.  My lord, the  31 letter of December 14th relating --  32 THE COURT:  Well, Mr. Grant, I'm not sure this is a very  33 valuable piece of trial time.  34 MR. GRANT:  I agree with you.  35 THE COURT:  I think there's obviously a problem here that has to  36 be resolved, and my preliminary view is that in the  37 absence of a proper claim for privilege having been  38 advanced, or failing such claim being advanced  39 properly immediately these are documents that should  40 be given to your friends, but I don't think that it's  41 useful for trial time to be taken up with these kinds  42 of dialogues.  I think that there -- it sounds like  43 there being no claim to privilege having been advanced  44 at this moment Mr. Goldie is entitled to those  45 documents, but I think it's a matter you're going to  46 have to deal with very, very promptly.  In the  47 meantime I think we should get on with the trial, and 2191  1  2  3  4  5  6  7  8  9  10  11  12 MR. GRANT  13  14  15  16  17  18  19  20  21 THE  22  23  24  2 5 MR.  2 6 MR.  27  2 8 THE  2 9 MR.  3 0 MR.  31  32  33 THE COURT  34  35  36  37 MR. GOLDI  38  3 9 CROS  40  41  42  43  44  45 THE  4 6 MR.  47 THE  COURT  GRANT  GOLDI  COURT  GRANT  GOLDI  if you gentlemen can't work the matter out over the  lunch hour well then, and depending how long Mr.  Goldie predicts his cross-examination is going to be,  I think we should deal with the matter either at four  o'clock this afternoon or at 4:30 tomorrow afternoon,  or some such other time as counsel can conveniently  agree upon.  But in the meantime, unless Mr. Goldie  has some other matter he wants to take up in a  preliminary way, which I may deal with in the same  somewhat summary fashion, I think we should deal with  the cross-examination of Mr. Joseph.  :  Yes, my lord.  I only want to say, if I may, one  point for the record at this time because I don't  really like to leave just this one point of what was  implied, is we are -- we have no -- any documents we  are not claiming privilege on we have no objection to  immediate production, but the request for several  documents came -- was delivered -- was a letter of  December 14th at which time, my lord, the office --  the category of the office from the library --  :  Mr. Grant, I don't think I want to hear all this.  I  know you are -- you have enormous difficulties.  I  have no doubt you do.  The fact is we are sitting with  the witness in the box.  We should be getting on.  :  I agree.  E:  The whole point is I want the map that was on the  wall in April of 1986.  :  I think your friend understands.  :  We do.  I told him I will speak to him at noon hour.  E: I want it to be clear I raised it now because it  affects my cross-examination. And I have said that  since April.  :  I'm in your hands whether we deal with these matters  at four o'clock this afternoon or 4:30 tomorrow  afternoon, if it's necessary to do so.  Can you  proceed, Mr. Goldie.  E:  Yes, I can.  Thank you, my lord.  EXAMINATION BY MR. GOLDIE:  Q   Mr. Joseph, I want to read to you a paragraph of the  Amended Statement of Claim.  You're familiar with that  document, are you?  Yes.  And —  COURT:  I'm sorry, Mr. Goldie, what paragraph?  GOLDIE:  Paragraph 58.  COURT:  Thank you.  A  Q 2192  1 MR. GOLDIE:  2 Q   That paragraphs reads, Mr. Joseph, and I quote;  3  4 "The Plaintiffs continue to own and exercise  5 jurisdiction over the territory to the present  6 time."  7  8 You, of course, are one of the plaintiffs, aren't  9 you?  10 A   Yes.  11 Q   And the territory is both described in the appendix to  12 the Statement of Claim and is shown in a map which is  13 filed May the 11th, 1987, and you're familiar with  14 that map, are you?  15 A   Yes.  16 Q   There are no house boundaries on that map; is that  17 correct?  Would you like to see the --  18 A   Yeah.  19 Q   The map.  I just want you to confirm that there are no  20 house boundaries.  21 THE COURT:  Mr. Goldie, that map you say was filed May 11th?  22 MR. GOLDIE:  It was with the Amended Statement of Claim.  It's  23 Schedule B to the Amended Statement of Claim.  2 4 THE COURT:  Thank you.  25 MR. GOLDIE:  And paragraph 56 alleges that;  26  27 "The Plaintiffs have owned and exercised  28 jurisdiction over the lands described in Schedule  29 'A' and set out on the map attached as Schedule  30 'B' (hereinafter referred to as 'the Territory")."  31  32 THE COURT:  Have you got that map, Madam Registrar?  33 THE REGISTRAR:  I don't have it right here, my lord.  34 THE COURT:  All right.  I have that big blue book.  I can find  35 it in my chambers.  36 MR. GOLDIE:  37 Q   Would you tell me, please, or tell his lordship,  38 please, how you as a plaintiff own the territory that  39 is shown on that map?  And the point of my question,  40 Mr. Joseph, is that that map doesn't show any internal  41 or house boundaries, and I want to understand whether  42 you are claiming ownership over any part of the  43 territory outside the house of Gisdaywa?  44 A   The house of Gisdaywa have always used the boundary of  45 the area around Biiwenii and Nadina and parts of  46 Wedzen Kwe.  That area has gone -- always been with  47 the name Gisdaywa and the house of Kaiyexweniits. 1  Q  2  3  A  4  Q  5  6  7  A  8  Q  9  10  11  12  13  14  A  15  Q  16  17  A  18  Q  19  A  20  Q  21  A  22  23  24  25  Q  26  27  28  29  30  A  31  Q  32  A  33  Q  34  35  36  37  38  39  A  40  Q  41  A  42  Q  43  44  45  A  46  47  2193  That's broadly speaking the Owen Lake Nadina Mountain  area?  Yes.  That, of course, is only a small part of the territory  shown on the map that is attached to the Statement of  Claim; isn't that right?  Yes.  It is part of that.  In fact, as I understand it -- and I'm now referring  to Exhibit 62.  There's a map that is part of that  exhibit dated May the 12th, 1987.  My understanding is  that you as the holder of the name of Gisdaywa claim  ownership only of that which is shown contained within  the heavy line on that map?  Yes.  Now, do you know how big that territory is of Gisdaywa  in terms of square miles?  Just approximately.  Yes.  40 square miles.  Around 4 0?  Yes.  I thought it was larger than that.  It is larger than that, but we don't use for hunting  and trapping.  We only use the valleys and the lakes,  and the plateaus and the mountains are for summer and  fall hunting.  Well, I made a very rough calculation, and it could be  considerably out, but that the total of the land area  enclosed in the solid line on the map in Exhibit 62  was about 315 square miles.  Would that be about  right, the total?  Total, yes.  Could be.  And of that you and your house use about 40?  Yes.  Thank you.  Now, going back to the question of the  territory, which is shown on the map attached to the  schedule of the Statement of Claim, am I right in my  understanding that you as Gisdaywa do not claim any  interest in the territory of, for instance, Mary  McKenzie, who gave evidence up in Smithers?  Not outside Wet'suwet'en territory.  Not outside of the Wet'suwet'en territory?  Yes.  So that you -- now, what about the territories of  other Wet'suwet'en chiefs, do you make any claim with  respect to that territory?  Times I will be invited to those territories by the  owners, but the Gisdaywa territories are the only ones  I have to protect. 1  Q  2  A  3  Q  4  5  6  A  7  Q  8  9  A  10  Q  11  12  13  A  14  Q  15  A  16  17  18  19  20  21  Q  22  23  24  A  25  26  Q  27  28  29  A  30  Q  31  32  A  33  Q  34  35  36  A  37  Q  38  39  40  A  41  Q  42  43  44  45  46  A  47  Q  2194  Are the only ones you have to protect?  Yes.  And it is the responsibility of the holder of the  names of the other houses to protect their own  territories?  Yes.  And it is only the territory of Gisdaywa that you  have, or you claim to have any jurisdiction?  Yes.  Am I right in my understanding that Wet'suwet'en law  does not recognize any right on the part of anybody  but you to the ownership of the territory of Gisdaywa?  Me and my house members.  Well, your house members defer to you, do they not?  I have to -- I'm not the only chief in the house of  Kaiyexweniits.  I have uncles that are older than me  that I have to go for advice.  I have cousins that are  older than I am.  So it's the house of Kaiyexweniits  are always into -- always meet about whatever is  happening on the territory of Kaiyexweniits.  But is it not so that it is the holder of the name  which has the right of ownership of that territory and  the duty to protect it?  I have to protect it with -- along with the other  chiefs that are in Kaiyexweniits.  I'll come back to them in a minute, but I want to  understand the duties and the responsibilities of the  holder of your name.  Yes.  And you've testified that before you held that name  there were others who held that name?  Yes.  Am I not right then that when that name was conferred  upon you that carried with it the ownership and  responsibilities of the territory?  Yes.  And that is so with respect to each of the  Wet'suwet'en chiefs who hold the name of the  territory; is that right?  Yes.  So would I be right then in concluding that in this  lawsuit you claim only the territory which is shown in  the map included with Exhibit 62, and that's the map  that shows in outline the territory of the house of  Gisdaywa?  Yes.  Now, with respect to that territory then you say that 2195  1  2  3  A  4  5  Q  6  7  8  A  9  Q  10  11  12  13  A  14  15  16  17  Q  18  19  20  A  21  Q  22  23  24  A  25  Q  26  A  27  Q  28  A  29  Q  30  A  31  Q  32  A  33  Q  34 THE  COURT  35  36  A  37  3 8 MR.  RUSH:  39  4 0 MR.  GOLDI  41  Q  42  43  44  45  46  47  you own and exercise jurisdiction over it; is that  correct?  I -- I own along with my other fellow chiefs.  I  cannot sell it without consulting my other chiefs.  M'hm.  But you say that you -- when you own and  exercise jurisdiction and you say well, I consult my  other chiefs, that is to say the chiefs of your house?  Yes.  That means that you with their advice and after  consulting them you say you control that territory?  I'm using the word control as another word for  jurisdiction.  I control along with my other uncles and cousins,  because in the feast house one -- only one person  cannot do all the work.  You need the support of the  house members.  Yes.  But I put it that it is you with the advice and  consultation of the house chiefs that control the  territory?  Yes.  And are those house chiefs the people you named in  your response to an interrogatory; namely Joe George,  Hoog'et?  Yes.  Sylvester George, Mahleeh?  Yes.  And Madeline George?  Yes.  Those are the people that you referred to?  There's also my cousins and brothers that are in.  Perhaps you better give me their names also.  Jack Mitchell, Beenee et'lxw.  Yes.  :  I'm sorry.  I didn't hear what came after Jack  Mitchell.  He's a cousin who's also in the house of  Kaiyexweniits.  I think the witness also gave the Wet'suwet'en name  for Mr. Mitchell.  E:  Yes.  Perhaps I could assist.  In question 32 of the interrogatory you were asked to  identify hereditary chiefs who were not plaintiffs,  and you said, and I am -- I am happy to put this  response in front of you, Mr. Joseph, but the response  that you gave, and I quote, "There are other  Wet'suwet'en chiefs in each house who are represented  by one of the named plaintiffs.  Furthermore there are 2196  1 some chiefs of other houses who are represented by a  2 named plaintiff.  I am able to answer for the chiefs  3 of my house.  I can only speak for the chiefs of my  4 house unless otherwise authorized with the consent of  5 the chiefs of those other houses or clans.  The other  6 chiefs in my house are; Joe George, Hoog'et.  7 Sylvester George, Mahleeh.  Jack Michell, Beenee  8 et'lxw, and Mabel Forsyth."  Perhaps you better give  9 me her name.  Is it Unlogh?  10 A   No, it's not Mabel Forsyth.  Mary.  Mary Ann Alec.  11 Q   I see.  Well, then your response to the interrogatory  12 that was -- I was reading from was made in December  13 19th, 1986.  Was Mabel Forsyth the holder of that name  14 at the time?  15 A   No.  16 Q   It should have been Mary Ann Alec?  17 A  Mary Ann Alec.  18 Q   Thank you.  19 THE COURT:  Mr. Goldie, I think we're getting some evidence that  20 I doubt if it's on the record.  The witness gave the  21 name Jack Mitchell and then an Indian name that caused  22 me to interrupt.  I don't think we ever got that name.  23 MR. GOLDIE:  I'm sorry, my lord.  Perhaps you might give us --  24 THE TRANSLATOR:  Jack Mitchell is 123.  2 5 THE COURT:  12 3?  26 THE TRANSLATOR:  Yes.  2 7 THE COURT:  Thank you.  28 MR. GOLDIE:  And Mary Ann Alec's name was given I think  29 yesterday.  30 THE COURT:  Yes.  No.  No.  I think when you read the names out  31 starting with Joe George and Sylvester George and you  32 added some Indian names.  I'll be surprised if madam  33 reporter got the names.  Joe George is Hoog'et?  34 THE TRANSLATOR:  122.  35 THE COURT:  122?  36 THE TRANSLATOR:  Yes.  37 THE COURT:  Thank you.  38 MR. GOLDIE:  And Sylvester George?  39 THE TRANSLATOR:  107.  40 MR. GOLDIE:  41 Q   I want to explore with you a little more the question  42 of what you mean by jurisdiction and control.  Do you  43 say that you with the advice and after consulting with  44 the chiefs that I have named decide who may go on the  45 territory of Gisdaywa?  46 A   Yes.  47 Q   And you decide who uses it? 2197  Yes.  And who removes the trees from it?  I don't think I -- I'd give anyone permission to  remove trees.  I see.  What about building roads?  Building roads as long as it follows the existing  roads that we have is fine, but if it's there to  remove the resources we -- my house and myself don't  support that.  Have you ever given permission to anybody to build  roads?  No.  What about farming, have you ever given permission to  or have you ever decided who farms there?  Yes.  And who was that, please?  Members of the house of Kaiyexweniits.  And I think you told my friend this morning that you  had never given permission to non-Indians to farm on  that territory?  Give me --  I said, I thought I understood you to tell Mr. Rush  this morning that you had never given permission to  non-Indians to farm or ranch?  I've never given them permission.  No.  No.  What about mining, have you ever given permission to  mine?  No.  As you have testified, Mr. Joseph, all of these  activities that I have named have gone on or are going  on on the property today?  Yes, they are going on.  Without your permission?  Without, yes.  Now, I'm going to deal with trapping separately, but  if I understood your evidence correctly you first went  on the territory between the -- about 1927 to 1931,  the first four years of your life?  Yes.  And Gisdaywa at that time was Joseph Nahloochs?  Yes.  44 MR. GOLDIE:  Does your lordship need a spelling for that?  45 THE COURT:  No.  Thank you.  46 MR. GOLDIE:  47 Q   Now, is it your understanding, or is it your evidence  1  A  2  Q  3  A  4  5  Q  6  A  7  8  9  10  Q  11  12  A  13  Q  14  15  A  16  Q  17  A  18  Q  19  20  21  A  22  Q  23  24  25  A  26  Q  27  A  28  Q  29  30  A  31  Q  32  33  34  A  35  Q  36  A  37  Q  38  39  40  41  A  42  Q  43  A 1  2  3  4  5  A  6  Q  7  8  A  9  Q  10  A  11  Q  12  13  A  14  Q  15  16  A  17  Q  18  19  A  20  Q  21  22  A  23  24  Q  1  25  26  27  28  29  30  A   ]  31  Q  32  A  33  MR.  GOLDIE  34  i  35  ]  36  37  38  39  THE  COURT:  40  MR.  GOLDIE  41  THE  COURT:  42  MR.  GOLDIE  43  Q  44  45  46  47  A  2198  that the territory shown on the map of May the 12th in  Exhibit 62 which we have referred to already as the  territory of Gisdaywa was the territory of Gisdaywa in  1927 to '31 when you were first on it?  Yes.  There were white men farming the land there as you  have testified?  Yes.  One of them being Charlie Kelly?  Yes.  Do you know when Charlie Kelly obtained title to the  land that he was farming on the territory of Gisdaywa?  No, I don't know when it happened.  You never had occasion to look into that during your  researches into the land claims matter?  No.  But he was certainly there when you first went on the  property?  Yes.  And you understood, and you understand now that he  owned that property, do you not?  I don't know if he owned the property, but he was  there.  M'hm.  And you gave evidence about a mine that is  there when you drove through the property recently,  but there has been mining activity on that -- in that  area.  By that area I mean the area of the territory  of Gisdaywa.  There's been that mining there all your  life, has there not been, mining activity?  Mining activity is without Gisdaywa's permission.  Without permission?  Yes.  :  Listed in the plaintiffs' documents is number 55 --  document 5540.  I asked my friend to produce that, but  my request was very recent, and in the expectation of  he doesn't have the document here I've had copies made  of what he gave me.  Would you give that to his  lordship, please?  This is the plaintiffs' document number?  :  This is plaintiffs' document number 5540, my lord.  Thank you.  Do you have that in front of you, Mr. Joseph?  That's  a photocopy of a photocopy, and it's not too good of  one, but you'd recognize it as the Owen Lake area,  would you not?  Yes. 1  Q  2  3  A  4  Q  5  6  A  7  Q  8  9  10  11  A  12  Q  13  14  A  15  Q  16  A  17  Q  18  A  19  Q  20  21  22  23  A  24  Q  25  26  27  28  29  A  30  Q  31  32  A  33  Q  34  35  A  36  Q  37  38  A  39  Q  40  A  41  Q  42  A  43  44  Q  45  46  A  47  2199  It's a Provincial Government topographical map.  The  sheet is entitled "Owen Lake".  M'hm.  There is a fair amount of handwritten additions to  that map.  Did you recognize the handwriting?  There is printing, but I don't see any handwriting.  All right.  Well, thank you.  I agree with that.  That  is printing.  And if you'd look at Owen Lake itself  which is right in the centre of the sheet, the lower  half, do you see Owen Lake there?  Yes.  And just to the left at the upper part of it there is  the printed words Biiwenii Ben?  Yes.  Is that your printing?  Nope.  It's not my printing.  Do you recognize whose it is?  No.  I spell my -- I've been spelling my Ben with a U.  Oh, yes.  Just above that printed words Biiwenii Ben,  above and to the right, is a lot that was printed, and  this printing is the map printing Felix George Indian  Reserve 3.  Do you see that?  Yes.  And then to the right of the Felix George and south of  that -- I would say if you take Felix George as the  centre of the clock and go down to the south and east  of it at 5:00 o'clock you come across a lake called  George Lake?  Yes.  And above that is the printing of someone that I don't  recognize, George Ranch?  Yes.  Is that the approximate location of the ranch of your  uncle?  Yes, I think it is.  And over to the right of it is what I believe are the  words Larsen Ranch?  Yes.  Do you recognize that name?  I heard of the name.  Is that another white rancher?  White.  I think there was a white rancher with an  Indian white.  Using that map can you tell me where the present day  mining activity is?  It's as what I have seen from the road there is -- is  a road that goes by Owen Lake towards the east end or 1  2  Q  3  A  4  5  Q  6  A  7  Q  8  A  9  Q  0  1  2  3  A  4  Q  5  A  6  7  Q  2200  south end of Owen Lake.  Yes.  There is a gate there that's locked, and there's some  printing on there, and it's some mine that I've seen.  That's the present day mining activity?  Yes.  Is that correct?  Yes.  Yes.  It's not in the square that is printed on the  map as opposed to the printing that is added to the  map, Mine Hill.  Do you see those words immediately  south of George Lake?  Yes.  It's not there that the present day mine --  No.  It may be up there, but there is a gate down by  the lake which is always locked.  I see.  All right.  18 THE COURT:  I haven't found Mine Hill.  19 MR. GOLDIE:  Well, did your lordship find George Lake?  2 0 THE COURT:  Yes.  21 MR. GOLDIE:  Directly south of that in lot —  22 THE COURT: Yes, I see it.  23 MR. GOLDIE:  — 3402.  24 THE COURT: Thank you.  But that's not the location of present  25 operations, I gather.  26 MR. GOLDIE:  Well, as I understand what Mr. Joseph has told us  27 he's not sure where the actual mine is because the  28 road with the gate on it is not there.  It's closer to  29 the south end of Owen Lake.  30 Q   Is that correct?  31 A   Yes.  32 Q   Now, the logging, can you tell us by reference to this  33 map approximately where the present day logging is?  34 A   Present day logging would be what I've seen is south  35 of Owen Lake and west of Owen Lake.  36 MR. GOLDIE:  I see.  All right.  Now, before I go any further  37 I'd like to tender this as an exhibit, my lord.  38 THE COURT:  Yes.  All right.  Exhibit number —  39 MR. RUSH:  Is this for identification?  40 MR. GOLDIE:  Well, does my friend have an objection to it?  41 MR. RUSH:  Well, this witness hasn't identified the map.  He's  42 referred to things that you've directed his attention  43 to, and I don't -- I mean, is my friend intending to  44 prove the map in some way other than simply by  45 submitting it to the witness?  46 MR. GOLDIE:  No.  He has identified on the map that the words  47 George Ranch refer to the location of his uncle's 2201  1 ranch, and the --  2 THE COURT:  I think it may be an exhibit.  There may be an  3 argument what it proves or what it stands for, but as  4 it comes from the opposite camp, and as the witness  5 has identified at least some parts of it, it seems to  6 me that it's evidence that far at least, and therefore  7 should not be marked for identification.  What else it  8 proves, if anything, is a matter that I'll be glad to  hear counsel on in due course.  RUSH:  On that basis I don't have an objection.  It's just  that this witness hasn't said that he prepared the map  or did anything with the map.  On that basis I don't  mind.  COURT:  It at least proves the -- the relative location of  the lake to the other matters that have been  specifically mentioned.  It goes at least that far.  I'm not sure whether -- I haven't read the legend, but  there may be some provision that would make it  admissible anyway.  I'll leave that to counsel to deal  with in due course.  GOLDIE:  My lord, I'm going to provide your lordship and my  friends with a binder to put these exhibits in  depending on how many documents there are, but they  will have to be marked independently and this binder  will simply be a collection of them.  COURT:  This will be the next exhibit.  9  10 MR.  11  12  13  14 THE  15  16  17  18  19  20  21 MR.  22  23  24  25  2 6 THE  27 THE  2 8 THE  29  30  31  32 MR.  33  34  35  36  37  38  39  40  41  42  43 THE  44  4 5 MR.  46  47  REGISTRAR:  COURT:  76.  That's number 76, my lord.  (EXHIBIT 76:  Map)  GOLDIE:  I would ask my friends to produce the original so  we may consider if it should be better listed than the  copy that I've provided.  Q   Now, Mr. Joseph, you've just told his lordship that  the logging -- the location of the logging as you  recall it, that's based upon the last time you drove  through the territory?  Yes.  Was that earlier this year or was it in 1986?  Earlier this year.  Earlier this year, right.  Earlier this year?  Yes.  A  Q  A  Q  COURT  A  GOLDIE:  Q   Well, earlier 1987?  A   '87. 1  MR.  GOLDIE  2  3  Q  4  5  A  6  Q  7  A   '  8  9  10  11  Q  12  i  13  14  15  A   ]  16  17  18  19  20  Q  21  A  22  23  24  25  Q  26  A  27  Q  28  MR.  RUSH:  29  30  MR.  GOLDIE  31  A   '  32  33  34  35  36  37  38  Q  39  A  40  Q  41  A  42  MR.  GOLDIE  43  44  45  MR.  RUSH:  46  47  MR.  GOLDIE  2202  :  Yes.  These notes were made in anticipation of  cross-examination in May or June.  But logging has been going on there since the 1950's,  has it not, to your knowledge?  Yes.  And that would be without your permission?  Without my permission.  And if I try to prevent that  it's -- it's always happen that our people went to  jail if they opposed anything that was happening on  their territory.  Well, Mr. Joseph, tell me when you or any preceding  Gisdaywa to your personal knowledge opposesed the  logging that has been going on in that territory since  the 1950's?  My uncle Thomas George used that area in the fifties,  and he travelled there on foot.  And at the time he  was trapping his area wasn't -- the area that he --  that he was using wasn't logged out yet at the time  that he went into that area.  Yes.  But since that time it has been really cut out.  At  the time my uncle was doing the trapping in the  fifties there was no clear cut.  It was selected  logging.  Selected logging?  Selective.  And he could still trap the area.  Yes.  But the line that he trapped --  Excuse me.  Is the witness through answering this  question?  :  I assumed he was, but if he hasn't please continue.  Well, the reason I say there was no selective logging  yet at the time was the animals' trails were still  visable and the boundaries were still visable, and for  that so he just let the logging go on.  But he got --  he was quite concerned in the sixties, late sixties  when clear cutting started.  That's when he really  spoke out against that.  Did he speak out in such a way that he went to jail?  No.  And you haven't?  No, I haven't been.  :  Now, I sent over to my friends some photographs,  and I'd like to ask Mr. Joseph if he can identify the  subject matter of these photographs for me.  Well, before you put them to the witness, you sent me  photocopies of the photographs.  :  I'm sorry. 2203  1 MR. RUSH:  And I'd like to see the photographs themselves.  2 THE COURT:  I think then this might be a convenient time to  3 adjourn, and we'll resume at two o'clock, please.  4 THE REGISTRAR:  Order in court.  Courts adjourned until 2:00  5 p.m..  6  7 (PROCEEDINGS ADJOURNED)  8  9 I hereby certify the foregoing to be  10 a true and accurate transcript of the  11 proceedings herein to the best of my  12 skill and ability.  13  14  15  16 Peri McHale, Official Reporter  17 UNITED REPORTING SERVICE LTD.  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 2204  1 (PROCEEDINGS RESUMED PURSUANT TO LUNCHEON ADJOURNMENT)  2  3 THE REGISTRAR:  Calling Delgamuukw against the Queen.  4 THE COURT:  Mr. Goldie.  5 MR. GOLDIE:  My lord, my friend Mr. Grant indicated that a  6 letter dated September 3 had been sent to us with the  7 copy of the notes of Alfred Joseph and the photocopies  8 of photos taken at the Feast in Burns Lake on April 4.  9 I had no recollection of it and none of my colleagues  10 here had.  We got back to the office and we found that  11 indeed we had received it but for some reason, which I  12 can only guess at, it had not been taken proper note  13 of.  I think, and I am speculating here, it was filed  14 with a copy of Mr. Grant's letter to the Justice  15 Research Centre which we somehow seem to have gotten  16 at the same time.  In any event, my point is that I  17 must apologize to my friend for not including it in  18 what I read to your lordship.  The only comment I make  19 is that is not a complete response of requests or the  20 direction of July 31.  But I want to make it clear  21 that if I had known of it I would have included it in  22 the material I read to your lordship.  23 THE COURT:  Thank you.  Mr. Grant.  24 MR. GRANT:  Yes, my lord, and I have advised my friend, my lord,  25 with respect to the only other outstanding matter  26 which is on route, or I may say there is two items  27 that are on route here from Hazelton, and so I  28 believe -- I believe the matters will be resolved by  29 tomorrow morning, I hope, or by tomorrow noon.  30 THE COURT:  All right.  Thank you.  31  32 CROSS-EXAMINATION BY MR. GOLDIE (Cont'd):  33 Q   Mr. Joseph, before we the continue, I wonder if you  34 would be good enough to assist me in telling me the  35 difference between the House name Kaiyexweniits --  36 A   Yes.  37 Q   -- and Gisdaywa?  38 A   Gisdaywa is the name of the chief of Kaiyexweniits.  39 Q   I see.  The reason -- I should tell you why I sought  40 your assistance is that the statement of claim says,  41 and I quote from paragraph two:  42  43 "The plaintiff, Gisdaywa, is the hereditary chief  44 of the House of Gisdaywa and is bringing this  45 action on behalf of himself and the members of the  46 House of Gisdaywa."  47 1  2  3  4  A  5  6  Q  7  8  9  A  10  Q  11  12  13  14  15  16  17  18  19  20  A  21  Q  22  23  24  25  26  A  27  28  29  30  31  32  33  Q  34  35  A  36  Q  37  A  38  39  Q  40  41  42  A  43  44  Q  45  46  47  A  2205  That's the end of paragraph two of the further amended  statement of claim.  I take it that that should more  properly have been Kaiyexweniits rather than Gisdaywa?  It is to indicate that Gisdaywa is head of the House  of Kaiyexweniits.  I see.  Well, if it doesn't cause confusion, I would  like to continue to use Gisdaywa referring both to  yourself and to the House.  Yes.  However, I think I understand the explanation you have  given me.  Thank you.  Now, just before the luncheon  adjournment I had gone through with you some of the  activities which are carried on in the territory  today.  And with respect -- with respect to each of  those and setting to one side the question of trapping  which I am going to deal with separately, with respect  to each of those, I think you had agreed with me that  the non-Indians who are carrying on those activities  have done so without your permission?  Yes.  Would you agree with me that in respect of those  activities you, that is to say Gisdaywa, do not  exercise jurisdiction over the territory, nor have you  exercised ownership of the resources of the territory,  again omitting the question of trapping?  I think I have exercised the rights to the territory  by -- through -- through the Feast system, by taking  the resources from the trapping as my grandfather and  uncles did, saying that some of the material, meat and  monies that have come from this resource is here in  this Feast House, and the berries that come from there  are all taken from the land of Gisdaywa.  And of course the Feast system is one that is within  your own community?  Yes.  It doesn't include non-natives?  Yes.  It's in our -- within the Wet'suwet'en  territory.  Yes.  Within that territory.  It doesn't include  non-natives.  You agree with that statement, do you  not?  There are spouses of natives that occasionally come  into the Feast House.  But we are not talking about the ranchers or the  loggers or the people who operate the mine or anything  like that, are we?  No. the Feast  2206  1 Q   Now —  2 MR. RUSH:  Just a moment.  Is Mr. Joseph finished the answer to  3 the question before you asked whether or not  4 was within his community?  I just --  5 MR. GOLDIE:  Well, I am sorry, I thought he had.  But I repeat,  6 if there is any suggestion that I interrupted his  7 answer I invite him to complete it.  8 MR. RUSH:  I just want to be sure that that is so.  Mr. Joseph,  9 did you complete your answer, your earlier answer?  10 A  Well, he asked if non-natives were in the Feast system  11 and I said to him that we do have non-natives  12 participate, non-natives that are married to our  13 people can come in and take part in the Feast.  14 MR. GOLDIE:  15 Q   Yes.  And I think you had agreed with me that that  16 category of people, namely non-natives married to  17 natives, did not include any of the people who are  18 carrying on the activities that we discussed this  19 morning in the territory of Gisdaywa?  We had agreed  20 on that, had we not?  21 A   The non-natives?  22 Q   The category of people that you just referred to,  23 namely non-natives who are married to natives --  24 A   Yes.  25 Q   -- do sometimes come into the Feast, to your knowledge  26 there is nobody in that group who carries on logging,  27 mining, ranching, the building of roads in your  28 territory?  29 A   I think there is some that are involved in the  30 resources -- removal of the resources of our  31 territory.  32 Q   And indeed you think there may be some Indians who are  33 involved in, say for instance in logging?  34 A   There are some.  35 Q   Yes.  Are they members of your House?  36 A   Yes.  37 Q   Can you tell me who they are?  38 A   One of my nephews, Fred Tom is one of the fallers.  39 Q   And he works for who, Hagman Brothers?  4 0 A   No.  No.  41 Q   Which one?  42 A   He works around Hazelton.  43 Q   Oh, I see.  He is up near the Hazelton area?  44 A   Yeah.  45 Q   Are any members of your House employed in the logging  46 industry that's presently on the -- in the territory  47 of Gisdaywa? 1  A  2  Q  3  4  5  6  7  8  A  9  Q  10  11  A  12  Q  13  14  A  15  Q  16  A  17  18  Q  19  A  20  Q  21  22  23  A  24  Q  25  26  27  A  28  Q  29  A  30  Q  31  A  32  33  Q  34  A  35  Q  36  A  37  Q  38  39  A  40  41  Q  42  43  A  44  45  Q  46  47  A  2207  Not that I know of.  Now, I was going to show you some photographs.  I have  handed you a blue bound book entitled "Book of  Photographs re Alfred Joseph," and under tab one there  is a photograph, the central feature of which is a  sign of the Ministry of Forests.  Have you seen that  sign?  Yes, I think I have.  And just behind that sign in the middle ground is a  body of water?  Yes.  I am instructed that's the Morice River, is that  correct?  Yes.  I think it's the Morice River.  And do you have a recollection of where that sign is?  It could be at Bii wenii C'eek or before we get to Bii  wenii C'eek on Morice River road.  Yes.  The Morice River forest road?  Yes.  Yes.  And that's -- I am not sure whether you can read  the wording on the sign, but it refers to a  significant forest fire, does it not?  Yes.  And in the background there is a hill covered with  standing, burnt timber, and you've seen that, have  you?  Yes.  Were you aware of forest fire on your territory?  Yes.  Do you know when it occurred?  It occurred in the spring and I was at a Feast at  the -- on the Gitksan territory when it happened.  Were you at a Feast on the territory?  Yes.  In the Gitksan territory?  Yes.  Did you or any member of your House assist the forest  service in fighting that fire?  I wasn't there when they recruited people to fight the  fire.  What about members of your House, were any of them  called in by the forest service to fight fire?  They were all on the western part of the territory at  the time.  I see.  Did any of them when they heard of the fire go  down to assist the forest service in putting it out?  Not that I know of. 2208  1 Q That fire was on May 29, 1983, was it not?  2 A Yes.  3 Q And it continued for two days?  4 A Yes.  5 Q And was a major fire?  6 A Yes.  7 Q And it was extinguished by the efforts of the forest  8 service of the Province of British Columbia?  9 A Yes.  10 THE COURT:  How long did you say the fire was, Mr. Goldie?  11 MR. GOLDIE:  Well, it continued for at least two days.  12 Q Under tab 2, Mr. Joseph, I am instructed that that is  13 on the Morice River forest road and it shows  what to  14 your understanding?  15 A It shows logging.  16 Q And is that a scene that either you have seen or that  17 you are familiar with?  18 A Yes.  19 Q Now, the Morice River forest road is east of Owen  20 Lake?  21 A Morice River would be west.  22 Q West?  23 A Yes.  24 Q Now, we are going down -- my understanding is that we  25 are proceeding south from the junction of the Morice  26 River and the Owen Creek, which is the outlet of Owen  27 Lake?  28 A You are going south?  29 Q Yes.  30 A You will be going towards Owen Lake?  31 Q Yes.  32 A And Francis Lake?  33 Q Yes.  34 A Yes.  35 Q And —  36 A But you are not going towards the Morice Lake.  37 Q No.  That sign that we looked at before was going  38 towards Morice Lake, wasn't it?  39 A Yes.  40 Q But this road continues on down or a branch of it I am  41 instructed continues on down and is it -- is it not --  42 or let me put it another way.  There is a public road  43 that is to the west of Owen Lake proceeding south?  44 A Yes.  45 Q And is there not a forest access road on the other  46 side of Owen Lake which goes through the Felix George  47 Indian reserve? 2209  Yes.  And is -- I am instructed that that is this particular  road.  In any event, without being too particular  about the -- about the location, that's a scene that  you are familiar with on the territory?  Yes.  All right.  Well, now let's look at the next one.  That has a sign in the foreground, Owen Flats  Recreation Site, B.C. Forest Service, and in the  background there is a body of water.  I am instructed  that that's Owen Creek which is at the north end  flowing north towards the Morice River.  Have you seen  that area that is identified in the photograph as the  Owen Flats Recreation Site?  Yes.  Have you used it for recreation purposes?  I haven't used it for recreation purposes.  But that's what its purpose is at the present time?  Yes.  That is the site you are speaking of is where my  uncle had his cabin and he had his fishery at the  outflow of Owen Creek.  That's your Uncle Thomas?  Yes.  And that was when he lived down in that area?  Yes.  When did he move out of that area?  He moved out of that area sometime in the early '70s  when he was getting quite old.  He died in 1974?  Yes.  :  Did you say this was the north end of Owen Lake.  3:  Yes.  It's the -- well, it's not quite the lake  itself.  The water has by that time --  34 THE COURT:  It's the creek near the north end of Owen Lake?  35 MR. GOLDIE:  Yes.  36 THE COURT:  Yes.  Thank you.  37 MR. GOLDIE:  Your lordship will see that it's almost across from  38 the Indian reserve.  3 9 THE COURT:  Yes.  40 MR. GOLDIE:  Now, the next one under tab four.  41 MR. RUSH:  Sorry, is that something that I should know about it  42 too or has the witness testified that it's across from  43 the Indian reserve?  44 THE COURT: The witness just agreed with that.  45 MR. RUSH: I see.  46 THE COURT: At least I took it that he did.  4 7 MR. GRANT: No.  1  A  2  Q  3  4  5  6  A  7  Q  8  9  10  11  12  13  14  15  A  16  Q  17  A  18  Q  19  A  20  21  22  Q  23  A  24  Q  25  A  26  Q  27  A  28  29  Q  30  A  31 THE (  COU]  32 MR. (  GOL]  33 2210  1 MR. GOLDIE:  Well, I will put the question.  2 THE COURT:  I thought I heard him agree.  3 MR. GOLDIE:  4 Q   Mr. Joseph, that site which you have seen is not -- if  5 it's not right across from Felix George Indian  6 reserve, it's -- the Indian reserve is just slightly  7 to the south of it, is it not?  8 A   The Indian reserve at the time my uncle lived there  9 was right up to the lake and the outflow of Owen  10 Creek.  11 Q   So it would -- it would be across the body of water  12 that we are looking at in that photograph, is that  13 right?  14 A   This is on the east side of the Owen Creek, is it?  15 Q   Where the photographer is standing.  16 A   Yes.  Yes.  17 Q   Yes.  I am instructed that's the case.  18 A  And that's the side Felix George reserve is.  19 Q   All right.  Well, this is very close then to the  20 reserve?  21 A   Close or it is on the reserve.  22 Q   Well, all right.  I will come to that.  Now, under tab  23 four, that's Owen Lake -- that purports to be a  24 photograph of the Owen Lake resort.  You have seen  25 that resort?  26 A   Yes.  27 Q   In fact, you have referred to it in your evidence?  28 A   Yes.  29 Q   It is right on Owen Lake?  30 A   Yes.  31 Q   Which side?  32 A   On the east bank of Owen Lake.  33 Q   And would that be then south of the Felix George  34 Indian reserve?  35 A   It could be right on the reserve.  36 Q   Well, is it your evidence that there is a resort on  37 the Felix George Indian reserve?  38 A   I was told that there was parts of the reserve that  39 were leased out and we made submissions to the D.I.A.  40 saying that Felix George reserve belonged to  41 Hagwilget, because our grandfather was Felix George  42 and his sons were still on the reserve that lived  43 there and we wanted to move some of the people over  44 there.  But when we made the submission to the D.I.A.  45 we were told that they couldn't find it.  They didn't  4 6 know what we were talking about.  47 Q   Well, that -- in fact that reserve is set aside for 1  2  3  A  4  Q  5  A  6  7  Q  8  ]  9  A  10  Q  11  12  A   ]  13  Q  14  15  MR.  RUSH:  16  MR.  GOLDIE  17  MR.  RUSH:  18  THE  COURT:  19  MR.  GOLDIE  20  21  THE  COURT:  22  23  24  25  MR.  GOLDIE  26  Q   1  27  28  1  29  A  30  31  32  33  Q  34  A  35  Q  36  A  37  Q  38  A  39  Q  40  41  A  42  Q  43  A  44  Q  45  A  46  Q  47  A  2211  the -- presently set aside for the use and benefit of  the Broman Lake band, is that not correct?  That's what we were told by the D.I.A.  Yes.  That is -- that happened when the D.I.A. moved their  boundaries west.  You mean from one -- the boundary of one agency was  moved west?  Yes.  Was moved to the west.  The leasing of lots on the Indian reserve was done by  the Broman Lake band, was it not?  May have been.  Well, isn't the Broman Lake band the only band that  can lease land on that reserve at the present time?  That's a legal question.  :  Well, it's what his understanding is.  All right.  He can't go beyond that.  :  Does your lordship rule against me on that  question?  No, no.  I don't think so.  I don't think I can do  that until I hear what the evidence is.  It's not  clear at the moment what he has agreed to and what he  hasn't agreed to.  :  No.  I agree.  Mr. Joseph, is it your present understanding that the  Broman Lake band is the only band that can lease or  deal with that reserve?  Like I have said, it's always been in Babine agency  until they moved their boundaries west, and when that  happened Hagwilget -- it moved out of our agency, so  the D.I.A. gave it to a new band.  And that was Broman Lake?  Broman Lake.  Yes.  And that's the situation today, is it not?  Yes.  Yes.  But we have an interest in this reserve.  Well, you have said to the Department of Indian  Affairs —  Yes.  -- that you have an interest in it --  Yes.  -- because you believe it belongs --  Yes.  -- to the Hagwilget band?  Yes. 1  Q  2  3  4  5  A  6  Q  7  8  A  9  Q  10  A  11  Q  12  13  A  14  Q  15  16  A  17  Q  18  19  A  20  Q  21  22  A  23  Q  24  A  25  Q  26  A  27  Q  28  29  A  30  Q  31  A  32  Q  33  A  34  Q  35  A  36  Q  37  38  39  40  41  42  A  43  Q  44  A  45  Q  46  A  47  2212  Yes.  Thank you.  But while you are not sure, if I  understand your evidence, whether the resort is on the  reserve, you know where the resort is in terms of Owen  Lake and your territory, don't you?  Yes.  All right.  Tab five, do you recognize the mountain in  the background?  Yes.  That's Nadina Mountain, is it?  Yes.  And the body of water in the middle foreground is Owen  Lake?  Yes.  And therefore the photograph would have been taken  from the east side of Owen Lake looking west?  Yes.  And you have told his lordship that Nadina Mountain is  in the territory of Gisdaywa?  Yes.  Now, looking at photograph under tab six, have you  driven on that road?  Yes.  Can you tell his lordship where that is?  It's on the south side of Nadina Mountain.  Yes.  It's near Duck Lake, is it not?  Yes.  And there is a good deal of logging activity down  there?  Yes.  And most of the logs go to mills in Houston?  I think, yes, some of them go to Burns Lake too.  And some to Burns Lake?  Yes.  In both those mills native people are employed?  Yes.  Now, I asked you a few minutes ago about native  peoples being involved in activities on the territory  which were carried on without your permission, and can  you tell me if there are today any House members,  members of your House carrying on, with or without  your permission, ranching activities in the territory?  Ranching did you say?  Yes.  Not ranching.  How would you describe it?  There are people from my House that are on there  hunting, fishing or trapping. 2213  1 Q   So as far as hunting is concerned, anybody that gets a  2 hunting licence can hunt on Crown land in the  3 territory at the present time, is that right?  4 A   They are hunting there without my permission.  5 Q   And are any members of your House employed by the  6 Department of Public Works or the Forest Industry  7 Service or by any of the logging companies in road  8 building activities in the territory?  9 A   In the Gisdaywa territory?  10 Q   In Gisdaywa territory, yes.  11 A   Not that I know of.  12 Q   And any members of your House working in the mine  13 that's there or engaged in prospecting or --  14 A   No.  15 MR. GOLDIE:   Thank you.  My lord, I would like to tender those  16 photographs as an exhibit.  17 THE COURT:  Yes.  That can be the next exhibit.  18 THE REGISTRAR:  Exhibit 77.  19  20 (EXHIBIT 77:  Photographs)  21  22 THE COURT:  Mr. Goldie, I am sorry, but I missed one answer of  23 the witness a moment ago.  You asked him if there was  24 anyone -- if anyone with a licence could hunt on Crown  25 land and the witness replied that anyone hunting there  26 in that capacity is without his permission?  27 MR. GOLDIE:  Yes.  28 THE COURT:  And you also asked him, but I missed something in  29 between, you asked him are there any member of his  30 House was working in mining or prospecting and he said  31 no.  There was something in between.  32 MR. GOLDIE:  It would be road building, my lord.  33 THE COURT:  Was it that no members of your House is working on  34 road building on the territory, Mr. Joseph?  35 A   No.  36 THE COURT:  That's what you said?  37 A   Yes.  38 THE COURT:  All right.  Thank you.  39 MR. GOLDIE:  40 Q   Now, I want you to help me in one other question about  41 the nature of the claim that is being made.  Are you  42 claiming damages for the logging and the mining and  43 the road building and the ranching and the resort or  44 recreational enterprises or businesses that are being  45 carried on in the territory without your permission?  46 A   Yes.  47 Q   And by damages you understand that by that I mean 2214  1 money compensation?  2 A  Money compensation.  3 Q   Money, yes, for doing these things without your  4 permission?  5 A   The nature of my claim is that I am doing this because  6 of the statements or things that I have read outside  7 of our claim and response that we got.  We were told  8 that we didn't have any rights; we didn't have a  9 language, we didn't have -- we weren't recognized as  10 owners of this territory that my ancestors have always  11 lived on.  So we made a -- this claim.  We wanted to  12 talk with the government who -- Provincial, Federal,  13 but when we had a convention we all went to  14 conventions, invited any interested party to come and  15 talk to us.  We have had responses from the Federal  16 Government when they were asked, invited, but I have  17 never seen a person from the Provincial Government  18 come and see us.  19 Q   Well, I understand that you have explained to the  20 court why you are bringing this lawsuit, but --  21 MR. RUSH:  I don't think he was finished his answer.  22 MR. GOLDIE:  Well, I thought he was.  I wouldn't have asked him  23 the question if I hadn't thought that.  24 MR. RUSH:  Did you finish your answer, Mr. Joseph?  25 A   No, no.  I -- the claim I am talking about, you ask if  26 I protected -- if our people had protected the land.  27 We were camped at Owen Creek back in 1983 and as we  28 were camped there an elder was with us and it was a  29 cold morning and he related to me how we used the  30 territory, how we used the resource of the land.  And  31 while we were talking there was a logging truck going  32 by every two or three minutes and that interrupted  33 him, so he had to stop.  So he finally said to me,  34 "Those logging trucks going by there and the trees you  35 see on the back of that truck, " he asked me, "who --  36 who protected that when they were small trees?"  He  37 asked me, "Who protected that?"  And I didn't know.  38 So he said, "Gyologyet protected those young trees  39 when they first started to grow up because he was  40 using the territory.  He didn't want to see any  41 burns."  42 MR. GOLDIE:  43 Q   This is Gyologyet.  And what -- did he have an English  44 name at that time?  45 A   He -- at the time those trees were grown with  46 sapplings Gyologyet was Big Seymour.  47 Q   Yes. 2215  1 A   He said that Gyologyet protected those trees.  That's  2 why those trees are going by here now.  There was no  3 B.C. forest service.  There was no Fish and Wildlife  4 he said.  There was no D.I.A. at the time.  So that is  5 why I say that we owned the territory.  We owned the  6 resources that are on it, because of our ancestors  7 protected those resources before the coming of the  8 government or any Federal or Provincial Government.  9 Q   Have you completed your answer?  10 A   Yes.  11 Q   Yes.  Now, I want to go back to the question that I  12 put to you, and that is relating to damages, and you  13 told me yes, you were claiming damages for the uses  14 that were taking place in the territory without your  15 permission.  And I wanted to make sure that you and I  16 were talking about the same thing when I used the word  17 damages.  And am I correct in my understanding that  18 damages means to you money compensation or money in  19 compensation for these unpermitted uses?  20 A  As for money, I think when we talk of compensation, we  21 are thinking land.  22 Q   Well, I don't want to be at cross purposes with you,  23 but I refer to the statement of claim declaration  24 number 12 on page 15 is a declaration that "the  25 plaintiffs are entitled to damages from the defendant  26 Province for the wrongful appropriation and use of the  27 territory by the defendant Province or by its  28 servants, agents or contractors without the  29 plaintiffs' consent."  Now, do I understand you now to  30 say that you are not seeking money, you are seeking  31 land?  32 A   Yes.  33 Q   And when you were asked in the interrogatory:  34  35 "What is your personal knowledge of:  36 (a), the loss and damage suffered by you, the  37 members of your House and their ancestors as  38 alleged in paragraph 75 of the further amended  39 statement of claim,"  40  41 you said "see answers to question 103."  And having  42 read that you then go on to say:  43  44 "A full accounting of the loss and damage suffered  45 by myself, the members of my House and their  46 ancestors has not yet been completed.  This  47 involves a detailed analysis of all incursions 2216  1 within the territory of my House by non-House  2 members without my consent and under the purported  3 authority of the government of British Columbia."  4  5 Now, is it -- am I now to take it from your evidence  6 that that accounting will result in a claim for land.  7 MR. RUSH:  Before my friend pursues that, I think it is only  8 fair to the witness that the reference to paragraph  9 103 be also included in the question, because the  10 reference from paragraph 105A is to 103 and then there  11 is an additional answer to that.  So it seems that  12 both should be read to the witness.  13 MR. GOLDIE:  Well, I am happy to do so, but I don't think it's  14 relevant to the question of whether the damages are  15 money damages or land.  16 MR. RUSH:  Well, I only say that because the question -- the  17 answer to the question includes 103, and I think that  18 it was in the mind of the witness when he answered 105  19 that 103 be considered as well, so it seems to me that  20 it's a composite and not severable as my friend may  21 suggest.  22 MR. GOLDIE:  Well, I am —  23 THE COURT:  Well, if it's in the mind of the witness he is a way  24 ahead of me, because I have never seen this document.  25 I don't know what it says.  26 MR. GOLDIE:  Well, 103 is:  27  28 "What is your personal knowledge of:  29 (a), the damage as a result of restrictions on  30 rights suffered by you, the members of your House  31 or their ancestors."  32  33 And the answer is:  34  35 "The members of my House and my ancestors have  36 suffered culturally and socially by the severe  37 imposition of the laws of the Province of British  38 Columbia on our system and way of life."  39  40 If I may pause there for a minute, Mr. Joseph.  Did  41 you -- are these your words?  42 A   If it's talking of losses, yes.  43 Q   And you said that you and your ancestors have suffered  44 culturally and socially, is that correct?  45 A   Yes.  46 Q   What did you mean by that, please?  47 A  Well, we -- there are times when our people made 1  2  3  4  5  6  7  8  Q  9  10  A  11  12  Q  13  14  15  A  16  17  18  Q  19  A  20  21  22  Q  23  A  24  25  26  27  28  Q  29  30  31  A  32  33  Q  34  A  35  Q  36  37  A  38  Q  39  A  40  Q  41  42  43  44  A  45  Q  46  47  A  2217  submissions and for staying on their territory, their  land but were refused, and when people moved onto  their lands, they -- when they objected to that or  tried to raise an argument, they were fined.  And then  there was areas of culture where we had our regalia  and old articles that were used in ceremony were all  burnt.  That was done by your people as a result of  encouragement by your church, was it not?  The church, yes, is the one that asked the people to  do it.  Well, all I want to know at the present time is  whether you want land to compensate for that or  whether you want money or whether you want both?  Well, we -- the loss of our land is uppermost in the  minds of all the chiefs that I've had contact with and  what I've heard in the past in the Feast halls.  Yes.  That is the only thing that elders like Woos and  former Gisdaywa talked of was the land that we have  lost.  Yes.  And they saw the amount of wealth that was leaving the  area, so first thing they wanted was to settle the  land question.  After that, if there was monetary  settlements may result -- may come out of this land.  The question is what I have always heard.  All right.  Thank you.  And assuming there is a  monetary settlement that may come out, who would  participate in that?  It would be the House chiefs and the House, members of  the House, members of the House and of the clan.  I am talking now about the territory of Gisdaywa.  Yes.  And is the members of the House, those are the members  of the House --  Yes.  -- as they are now?  Yes.  And are the members of the House and the clan as shown  on the genealogy, which is part of Exhibit 62, is that  who we are talking about as the members of the House  and the clan?  Yes.  Now, if somebody's name isn't on that they wouldn't  get any of the money, is that right?  I can't say that someone whose name isn't on there 2218  1 will get the money, because there is the future, the  2 children that are coming that we think of.  We -- I  3 myself may not be around when that happens.  So I  4 can't say that someone's name is not on there is not  5 going to get any compensation.  6 Q   But the person who sees to it that the name does get  7 on here in the future would be either you or the  8 Gisdaywa of the day?  9 A   Yes.  10 Q   Now, in your evidence yesterday you asked us to  11 include in the -- in this genealogy the name of  12 Marianne Alec, do you remember that?  13 A   Yes.  14 Q   Why did you wish us to do that?  15 A   Because she had the name of Unlogh who was member of  16 Kaiyexweniits.  17 Q   How did she get left off then?  18 A  At the time of the -- when we are making -- people who  19 are making up that genealogy chart, she was living in  20 another territory.  21 Q   I see.  But she has returned now?  22 A   She returns whenever there is a Feast on.  23 Q   Now, there are a number of symbols here that are  24 marked N.I.  That indicates a husband or a wife who is  25 not an Indian?  26 A   Yes.  27 Q   And so long as their's is N.I. they won't get any part  28 of the money, is that right?  29 A   That would be up to the House chiefs.  3 0 Q   At the time?  31 A  At the time.  Yes.  32 Q   Either you or the Gisdaywa of the day?  33 A   Yes.  34 MR. RUSH:  Well, my lord, I think that the particular  35 individuals that are referred to by my friend should  36 be put to the witness, not in a general category of  37 persons N.I.  There are persons categorized as N.I.,  38 as he puts it, who are not on the House but who are on  39 the chart.  And if my friend has something specific I  40 think he should put it to the witness.  41 THE COURT:   Well, was there not an interrogatory for this  42 witness as for some earlier ones, Mr. Goldie, that  43 specified who were members of the House?  44 MR. GOLDIE:  Yes, we did.  And the two don't coincide.  45 THE COURT:  Because the genealogy, as I understand it, would  46 only include the -- well, I am sorry, the House list  47 would only include those who followed the linear 2219  1 descent, whereas the genealogy would show the  2 intruders by marriage, would it not?  3 MR. GOLDIE:  Well, it's not clear to me whether that's the —  4 let me put it this way.  It's not clear to me that  5 that is the invariable rule.  For instance, I  6 expressed my confusion yesterday over who was being  7 referred to by grandfather.  This chart doesn't  8 indicate what I now understand to be the case that  9 there was a cross-cousin marriage.  But that no doubt  10 will be -- will be illuminated at greater lengths  11 presumably by the author of the chart.  12 THE COURT:  All right.  13 MR. GOLDIE:  14 Q   Now, so far as deciding who will receive money, I  15 think you have answered my question on that, but I now  16 want to go to another part of your answer which I  17 understood was with respect to land, and you told me a  18 few minutes ago that the concern of the elders was the  19 land they have lost?  20 A   Yes.  21 Q   Now, what land in Gisdaywa has been lost?  22 A   Gisdaywa lived at the mouth of Owen Creek as his home  23 place or he had a camp there were he went every winter  24 and spring to trap for beaver.  And he also had a  25 place at the outflow of Owen Lake.  2 6 Q   At what?  27 A   Outflow of Owen Lake.  And there is -- the use of that  28 lake now is restricted now because of all the houses  29 around, the resorts, the mining activity that's  30 happening, and my grandfather's house at Owen -- at  31 the mouth of Owen Creek is no longer there.  There is  32 a sign there.  It's a big hole in the ground and it is  33 used as a dump site by Parks branch, I think.  So it's  34 right on the house site where this hole is.  I was  35 looking for a place when we went over there looking  36 for a place to camp and let -- to show where -- my  37 children where my grandfather had a house, but then  38 when I seen this I couldn't bring them up.  I seen the  39 dump, the hole in the ground filled with garbage.  40 Q   This is your grandfather Joseph Nahloochs, is it?  41 A   Yes.  42 Q   Not your grandfather Felix George?  43 A   No.  Nahloochs, yes.  44 Q   Now just going back to your answer with respect to  45 your uncle for a moment.  I understood you to identify  46 on what is now Exhibit 76 that the words "George  47 ranch" — 1  A  2  Q  3  A  4  Q  5  A  6  Q  7  A  8  Q  9  A  10  Q  11  A  12  Q  13  A  14  MR.  GOLDIE  15  THE  COURT:  16  MR.  GOLDIE  17  THE  COURT:  18  ]  19  20  21  22  MR.  RUSH:  23  MR.  GOLDIE  24  THE  COURT:  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  2220  Yes.  -- indicated the place where your uncle lived?  Yes.  Is that correct?  That's where Thomas lived, Thomas George, yes.  Yes.  Yes.  He didn't live at the outflow of Owen Creek?  No.  My grandfather --  All right.  Gisdaywa did.  And your grandfather died when?  About 1946.  :   Yes.  Thank you.  Is this a convenient time to adjourn, Mr. Goldie?  :  Yes, my lord.  I notice, and I can understand, that some of the  members working on the press may be having trouble  hearing the evidence.  If counsel don't mind I  wouldn't mind if they sat in the jury box if that was  helpful to them.  Would that be an inconvenience?  I don't have any problem.  :  I don't have any objection.  All right.  Thank you.  (PROCEEDINGS ADJOURNED PURSUANT TO AFTERNOON  ADJOURNMENT)  I hereby certify the foregoing to be  a true and accurate transcript of the  proceedings herein to the best of my  skill and ability.  Laara Yardley,  Official Reporter,  United Reporting Service Ltd. 2221  1 (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT)  2  3 MR. GOLDIE:  My lord, with respect to your last suggestion about  4 the location of the press, looking around the  5 courtroom it seems that that table back there is  6 completely empty and that might be a better place to  7 go rather than the jury box, which the comings and  8 goings in the jury box always attract the nervous  9 attention of counsel.  10 MR. RUSH:  Some counsel.  11 MR. GOLDIE:  Well, you probably have better success with juries  12 than I do.  13 THE COURT:  Or with the press.  14 MR. GOLDIE:  Yes, I agree with that.  15 THE COURT:  Well, all right.  Let's try the last — no, the  16 first.  17 MR. GOLDIE:  Right here it seems to me would be --  18 THE COURT:  For now, but I'm having a lot of trouble hearing the  19 witness.  Even from this direction there is  20 difficulty.  We'll see how we go from there.  21 MR. GOLDIE:  Well, yes.  We'll see how we get along.  22  23 CROSS-EXAMINATION BY MR. GOLDIE CONTINUED:  24 Q   Mr. Joseph, I want to go back to a couple of answers  25 you gave prior to the adjournment, and that is with  26 respect to your Uncle Thomas and losing his land.  And  27 I have suggested to you that the land that you had  28 identified as being where he -- where he lived on  29 Exhibit 76, I think you said the words that are  30 lettered in -- pencilled in, George Ranch, would be  31 about where he had his -- his residence.  Am I right  32 in that?  33 A   Yeah.  He lived there.  34 Q   Yes.  Now, is that the land that you're talking about  35 that he lost?  36 A   I think when he talk about lost -- when he talks about  37 lost in the feast he's talking about his use, our use  38 of the whole territory.  Ever since the coming of  39 industries there is our areas that he can't use.  40 There are areas of employment that he can't use.  And  41 right now it's getting to be more the whole territory  42 where you see these locks and the gates, no trespass  43 signs everywhere.  That's the loss we're talking  44 about.  We have no freedom to go into these places.  45 Even the hunting or trapping areas have signs up.  46 Q   Well, Mr. Joseph, I thought that you had said that  47 your Uncle Thomas George had lost property? 1  A  2  3  Q  4  5  6  A  7  8  9  10  11  12  13  Q  14  15  16  A  17  Q  18  19  20  A  21  Q  22  23  24  25  A  26  27  Q  28  29  30  31  32  A  33  Q  34  A  35  36  37  38  Q  39  40  A  41  42  Q  43  44  45  A  46  47  Q  2222  He had property up around George Lake you're talking  about?  Yeah.  But is that what we are talking about, or are  you talking about the present day when there are  padlocks on roads leading to mines or are we --  Well, that happened even in his day, so that's where  we talk of lost.  He can't use territories because of  logging.  He can't use territories because of mining  and ranching.  And then in some areas he wants to go  in and make some employment as a guide.  He can't do  that.  Someone else has a guiding license for his  territory.  Now, you also talked about a site which now, as I  understood your evidence, constituted a forest dump or  something like that?  Yes.  Yes.  And, of course, there is a resort that we have seen in  the photographs, and recreational areas, and things of  that order?  Yes.  Just taking those in the sequence, reverse sequence,  the recreational areas are, of course, open to  everybody, isn't that correct, including you and the  members of your house?  You mean it's open for me to go and plant a garden or  build a house?  No.  I said the recreational areas are open to anybody  for the purpose that they have been set aside, namely  a recreational purpose; camping, picnics.  Any  resident in British Columbia can go up there and have  a picnic; isn't that right?  Yes.  Including you and the members of your house?  It is for that purpose it's put there, but then my  uncle also had cabin sites on there for his -- and  fish sites and fish weirs or traps right there, but he  cannot do that with the recreational facility there.  And the restriction that that imposes is imposed upon  every other resident of the province, isn't it?  If it's a restriction to my uncle and myself we  consider that a loss.  But it is also a loss to every other person who goes  up into that area if he can't fish from a particular  place or build a cabin in a particular place?  How does he -- how does this white person lose when he  just come in and has never had anything to do with it?  Well, Thomas -- well, I'll come back to that, because 1  2  3  4  5  6  7  A  8  Q  9  A  10  Q  11  12  A  13  14  15  16  17  Q  18  A  19  Q  20  21  22  23  24  A  25  26  Q  27  28  29  A  30  Q  31  32  33  34  35  A  36  37  38  39  40  Q  41  42  43  44  A  45  46  Q  47  2223  I want to -- to discuss further your -- the area that  your Uncle Thomas lived in.  But would you -- would  you agree with me, please, that the recreational area  is open to the use of you and the members of your  house in the same way as any other resident of the  province?  To spend a weekend?  Yes.  But then I'd have to pay to stay there.  Well, if you pay that's what every other resident has  to pay; isn't that right?  Well, my -- we never did anything like that.  We used  every piece of land that we've had, and it was open to  any visitor that came to see you, visit you.  And  that's the way we always use our territory, if there's  a visitor, good, he can stay.  What you're saying is is that with your permission?  With my permission, yes.  Yes.  But what I'm asking you to agree with me is that  without anybody's permission you can go to a  recreational forest site whether it's on your  territory or whether it's on somebody else's territory  and use it for the purpose of recreation, can't you?  Well, when you talk about recreation purposes it could  mean the whole of my territory.  Well, I'm just talking about that particular site that  you identified for me in the photographs that we  looked at a few minutes ago.  The recreational areas are controlled by the province.  Yes.  And that applies to every resident of the  province, doesn't it?  The same regulations that apply  to that recreational site apply to every resident of  the province including you and the members of your  house?  I don't think I would agree with that, because I as  Gisdaywa own that territory.  I don't know how you  gonna put restriction or rules on me when I have  control, use and control of that area since before the  coming of the European or white man.  You're complaint is that there have been restrictions  which apply to you and every other resident of the  province placed on certain uses of that property.  That's your complaint, is it?  My complaint is based on what's happened to other  chiefs of the Wet'suwet'en people.  Well, I thought we had -- I thought we had earlier  determined that you are in this lawsuit because you 2224  1 and only you can speak for the property of Gisdaywa,  2 or the territory of Gisdaywa, and that's all that I'm  3 talking about when I'm speaking to you, Mr. Joseph.  4 A   Yes, but if I'm in a feast house there's always  5 others.  I'm there as a guest.  And the chief gets up  6 and say this is what happened to me.  And this is --  7 another chief will say the same thing.  I've suffered  8 the loss of my land.  I have suffered the loss of my  9 house, and my farm, my barns.  And that is known by  10 all Wet'suwet'en.  So when they spoke of their land  11 they always know what has happened to their fellow  12 chiefs, so that is why our people are always thinking  13 that this is what happened to my friend, it could  14 happen to me.  15 Q   I see.  But I take it you're prepared to agree with me  16 that so far as the recreational sites in the territory  17 of Gisdaywa are concerned you and every other resident  18 of the province can use them in the same way today  19 right now?  20 A   But it's still included in my claim.  21 Q   I understand that, but I'm just asking you to agree  22 with me that your use of it is in the same fashion as  23 every other resident of the province?  24 A   But my intended use is different.  25 Q   Well, it may be, but so far as the use for which that  26 recreational site was set aside, every other resident  27 of the province is in the same position as you are?  28 A   No, they're not in the same position that I am.  29 Q   Let me turn it around.  That the restrictions that are  30 placed on you are the same restrictions that are  31 placed on every other resident?  32 A   The restriction put on me is -- the non-resident that  33 comes in there uses that territory, but I'm there  34 using it for another purpose, and I'm -- I can't  35 because of the facilities that are put on there  36 without my permission.  37 Q   Yes.  All right.  The picnic tables --  38 MR. RUSH:  Please let him finish.  39 MR. GOLDIE:  I'm sorry.  40 A  And the -- my house site is gone.  My fishing site is  41 gone.  And if I do put in my fishing gear it will be  42 tampered with.  And I can't use it to catch beaver.  I  43 can't use it to catch muskrat any more because of the  44 recreational facilities that are there.  And I don't  45 see how I could be classed the same as the visitor  4 6 that's there for overnight camping.  47 Q   Well, he can't catch beaver there either, can he? 1  A  2  Q  3  A  4  Q  5  6  7  A  8  9  10  11  12  Q  13  A  14  15  Q  16  17  18  19  20  A  21  Q  22  23  24  25  26  A  27  28  29  30  31  32  33  34  Q  35  A  36  37  Q  38  A  39  Q  40  41  42  43  A  44  45  46  Q  47  2225  Only Gisdaywa catch beaver.  Beg pardon?  Only Gisdaywa catch beaver.  But the restriction you're talking about is not  imposed upon Gisdaywa as such, it's imposed upon  everybody who uses that area?  It's imposed on everybody, but Gisdaywa can use area  for trapping, but then again the same Provincial  Government can give someone else license to go in  there and do the very thing I am doing which has  happened to me.  That is to say use it as a recreational area?  No.  With other traplines being established on  Gisdaywa's territory is what I'm talking about.  Well, the traplines that you described in your  evidence -- in the evidence that you gave when Mr.  Rush was asking you questions, the traplines that you  and your uncle, the company operate, nobody else can  trap in there, can they?  No.  So there are places in the territory where you have  the exclusive right to trap, and that's by reason of  the fact that the Provincial Government in granting  the registration will ensure that other people keep  out.  Isn't that just the way things are today?  The only thing that is wrong there is that the  provincial -- there is Parks Branch that established  something there, but then there are different agencies  there that put in another set of restrictions; the  forestry, the fishing, wildlife, and the mining  companies, private companies.  So the restrictions  that are there, the no trespass sign that's sitting  there is a restriction to Gisdaywa.  M'hm.  And if I trespass there it says you will be  prosecuted.  But you haven't been subjected to that yet?  Not yet.  And indeed if I understand your evidence correctly you  haven't protested or taken any steps with respect to  the building of roads or mining or ranching or  anything of that sort?  The roads that they built up until the fifties were  there already, they just been widened for access to  these areas, ranches.  All right.  You state that you have permitted your  cousins -- I understood by your evidence in chief that 1  2  A  3  Q  4  5  A  6  Q  7  8  A  9  Q  10  A  11  Q  12  A  13  Q  14  15  A  16  Q  17  A  18  19  20  21  22  23  Q  24  25  A  26  27  28  29  Q  30  31  A  32  Q  33  A  34  Q  35  A  36  Q  37  38  A  39  Q  40  41  42  43  44  A  45  Q  46  47  2226  you're talking about Andrew and Leonard George?  Yes.  To use your territory.  And that is for trapping  purposes.  Am I right in that?  Yes.  That trapline is the -- is the property of the George  family, is it not?  Of the Thomas George, yes.  Of the Thomas George?  Yes.  It's the descendants of your Uncle Thomas?  Thomas' brothers, yes.  Do Leonard and Andrew trap where you tell them to  trap?  Yes.  And when do you tell them where to trap?  They can trap in any area that -- where there is no  one using the area, and as long as they don't keep  going back to the same place every year.  They'd have  to leave an area for awhile and move to another one,  but they always said -- told me or my uncle where  they're at trapping it.  Well, they trap according to where they think they  will get the best returns, don't they?  They trap where -- an area where they not use  repeatedly.  They can't go into an area and just stay  there year after year.  They would have to keep moving  to replenish an area.  The reason why they keep moving is that if they stayed  there their trapping returns would go down?  Yes.  Wouldn't they?  Yes.  And they trap there because of the money?  Yes.  And they do -- and this is all within their registered  trapline, they move around within that area?  Yes.  Yes.  And within that area in order to make it a commercial  success they keep the trails clear and they make sure  that the access that they need in the wintertime is  available to them.  They do all of those things as a  matter of course, don't they?  Yes.  By the way, what do they use to get into their  trapping area in the wintertime nowadays, do they use  a snowmobile? 2227  1 A   Yes.  2 Q   Are they the only people who have your -- well, now  3 you've -- I may have to ask you to assist me to get my  4 notes correct here with respect to the evidence you  5 gave yesterday, but I'd like to know whether any of  6 these people have your permission to trap, and I think  7 you may have given us some of these names, James  8 George?  9 A   Yes.  10 Q   Dwayne Lund?  I don't recall hearing his name.  11 A   No, I never heard that name.  12 Q   You don't.  That's a new name to you?  13 A   Yes.  14 Q   All right.  Christine Holland?  15 A   Christine, she's deceased, yes.  16 Q   She's deceased?  17 A   Yes.  18 Q   Did she have your permission to trap?  19 A   Yes.  20 Q   Ronald George, I think you told his lordship that you  21 knew about him?  22 A   Yes.  23 Q   And I think the -- you've answered this question, but  24 you cannot speak for the chief of any other territory.  25 That is to say whether he has given permission to  26 others to trap, or anything like that.  You're  27 restricted to telling us who traps on your territory  28 and with -- whether he does it with or without your  29 permission; is that right?  30 A   No.  He has to have my permission to trap on my  31 territory.  32 Q   Yes, I understand it, but my question is that you  33 speak only with respect to your territory.  You can't  34 give permission to somebody to trap on another chief's  35 territory?  36 A   No.  I'd have to seek his permission.  37 Q   I think I'll ask you, Mr. Joseph, to identify, and  38 I'll tender as evidence, the interrogatory response to  39 some of the questions relating to the members of your  40 house.  And I'll ask Miss Sigurdson to put in front of  41 you that part of the affidavit of response consisting  42 of the response and questions two, three, 24, 29, 30,  43 31, 32, 33, 34.  Now, you have -- does your lordship  44 have —  45 THE COURT:  Yes.  Thank you.  46 MR. GOLDIE:  47 Q   Now, first, Mr. Joseph, on page two you identify that 2228  1 as your signature?  2 A   Yes.  3 Q   And you recall that these constitute part of the  4 responses to the interrogatories, and the second  5 interrogatory sworn December 19th, 1986 after Mr.  6 Justice Locke made an order with respect to certain of  7 the questions.  And the answers you gave were true at  8 the time you gave them?  9 A   Yes.  10 Q   And are they true at the present time?  11 A   Yes.  12 MR. RUSH:  Well, perhaps each question should be gone through in  13 respect of them.  14 MR. GOLDIE:  All right.  15 Q   Question two, there's no doubt about your place of  16 birth and its present name?  17 A   Yes.  18 Q   And the places that you were -- that you have lived  19 since birth?  20 A   Yes.  21 Q   And then we come to question 24.  Is that a correct  22 statement of the members of your house whom you  23 recalled at the time, and their place of residence and  24 age?  25 A   Yes.  26 Q   Now, just addressing the question that his lordship  27 made in relation to the genealogy, do all of these  28 names appear on the genealogy, to your knowledge?  29 MR. RUSH:  I think the witness should be shown the genealogy.  30 MR. GOLDIE:  Sure.  31 THE COURT:  Is it necessary for the witness to make these kind  32 of comparisons for us?  33 MR. GOLDIE:  Perhaps I can go directly to this question.  34 THE COURT:  Yes.  35 MR. GOLDIE:  36 Q   Which are we to go to in terms of who the house  37 members are, the answer to the interrogatory or the  38 genealogy?  39 MR. RUSH:  I think that that too may require a comparison of the  4 0 two documents.  41 MR. GOLDIE:  Well, does it?  42 THE COURT:  Well, you say, Mr. Goldie, they're not the same?  43 MR. GOLDIE:  Well, for instance, if your lordship would look at  44 item 6, the question 24, Ron George is not on that,  45 although he's on the genealogy.  Mary Ann Alec has  46 been added to the genealogy.  She's not on this list.  47 Now, I don't want to be unfair.  The answer to 2229  1 question 24 was qualified.  It was whom I recall at  2 this time.  3 THE COURT:  Yes.  4 MR. GOLDIE:  5 Q   Now, if we were to simply set the interrogatory  6 response to one side that's fine.  I'm happy with  7 that.  But if we're to use the genealogy, in what way  8 can we use the genealogy to identify members of the  9 house?  And you will recall his lordship made the  10 comment that the genealogy seems to have some  11 intrusions by marriage.  I don't want to belabour the  12 point, but what I'm obviously interested in getting at  13 is an authoritative identification of the house  14 members.  Do you follow me?  15 A   Yes.  16 Q   What is your advice to me?  17 A  Well, one thing I will say this is that genealogy  18 chart of the house of Kaiyexweniits is always changing  19 because the numbers in that house, there's additions  20 and deletions.  21 Q   Well, that's inherent, or that's something that is a  22 problem, but as of the date we received this  23 genealogy, which was the 12th of June, tell us how we  24 would extract from that the members of your house, if  25 that's what we can do with it?  26 A   There's a change made in the genealogy at the feast on  27 October the 10th, 1987.  There was additions.  And I  28 see a name on my interrogatory there that's no longer  29 there.  30 Q   Well, let's just take one thing at a time.  You say  31 there was somebody who was added to the house in  32 October?  33 A   Yes.  Yes.  34 Q   Adopted?  35 A   Yes.  36 Q   And who was that?  37 A  Abraham Kenny.  38 Q   And you identified him the other day, did you not?  39 A   Yes.  40 Q   Yes.  Now, who has been struck off the strength of the  41 house?  42 A   It's a lady that returned to her original house.  43 Q   And who was that, please?  44 A   Ida Austin.  45 Q   And what house does she belong to now?  46 A   She always belonged to the house of Spookw, but she  47 was put on Gisdaywa's list for a few years. 2230  1 Q   Well, all right.  Then let us see if we can shorten  2 this up.  With Ida Austin being taken off the  3 interrogatory list and with Victor Senee -- Kenny --  4 MR. RUSH:  Abraham.  5 MR. GOLDIE:  Abraham.  Sorry.  6 Q   Added to it, is that an accurate indication of the  7 members of your house, that being the interrogatory  8 response to question 24?  9 MR. RUSH:  Again, I hate to press this point, but I think it's  10 fair to the witness where two documents are being  11 referred to and you're directing his attention to one  12 of them that the other be put to him so that he can  13 look at both of them.  14 MR. GOLDIE:  Well, why don't we do it this way.  I'll ask the  15 witness to do it overnight.  16 THE COURT:  I think that's probably a safer procedure, because  17 I'm not sure the witness can be expected in the  18 witness box to look at the genealogy and quickly keep  19 in mind all the factors that had to be taken into  20 account.  The genealogy is two pages and includes many  21 people who are long, long since deceased.  22 MR. GOLDIE:  23 Q   All right.  Well, Mr. Joseph, do you understand what  24 we're requesting you to do?  25 A   Yes.  2 6       Q   And what I hope you'll be able to do for us tomorrow  27 is to tell us who the members of your house are.  And  28 if you want to select the date of the 2nd of June,  29 which was the date of the genealogy, or if you want to  30 select the date of the 19th of December, 1986, which  31 was the date of the interrogatory, and add to it it  32 doesn't really matter.  We just want a common base to  33 start with.  34 THE COURT:  The suggestion is that the membership of the house  35 is as shown in question 24 of the interrogatories plus  36 Abraham Kenny minus Ida Austin.  37 MR. GOLDIE:  That's the suggestion I'm putting to the witness.  38 THE COURT:  All right.  39 MR. GOLDIE:  However, in the meantime I want that -- those  40 questions and answers in that part of the  41 interrogatory tendered as an exhibit, my lord.  42 THE COURT:  Yes.  All right.  That will be the next exhibit.  43 THE REGISTRAR:  Number 78.  44  45 (EXHIBIT 78:  Excerpt of Interrogatory)  46  47 2231  1 MR. GOLDIE:  Now, I want to go back to the question of roads for a  few minutes.  And I think we're both agreed that there  are public roads in the territory of Gisdaywa and --  that's correct, is it not, there are public roads  there?  Yes.  And public roads, by that I mean roads that are kept  up by the province and on which anyone is free to  travel?  Forestry roads and private roads.  Yes.  But when I say public roads I'm referring to  those that can be used by anybody.  M'hm.  I think some of their roads you're talking  about can't be used by anybody.  I suspect you're right.  There are probably access  roads which are available for use only with the  permission of the logging company.  M'hm.  But there is a main road that goes through the  territory, runs down west to Owen Lake and goes south,  which is a road that anybody can use.  It's a public  road?  Yes.  And it's maintained by the province?  Yes, I think so.  Have you seen graders on the road?  Yes.  And that public use includes not only Wet'suwet'en  people but people of the Carrier-Sekani?  Yes.  And a number of these public roads have existed from  before your time.  When I say your time I mean the  time that you became Gisdaywa?  I think as far as I know the only roads in 1935 were  the road from Houston to Owen Lake and on to Francis  Lake.  Wasn't there a road called the Buck Flats Road from  Houston to Wistaria through the Parrot Lakes?  A small trail at the time in the thirties.  By small trail would it be right to say that it was a  rough public road?  The only one I knew at that time was the one from --  from Houston to Owen Creek, and up through Owen Lake  and then to Francis Lake is the only one that I knew  at the time.  I see the phrase the Buck Flats Road doesn't mean  2  Q  3  4  5  6  7  A  8  Q  9  10  11  A  12  Q  13  14  A  15  16  Q  17  18  19  A  20  Q  21  22  23  24  A  25  Q  26  A  27  Q  28  A  29  Q  30  31  A  32  Q  33  34  35  A  36  37  38  Q  39  40  A  41  Q  42  43  A  44  45  46  47  Q 1  2  A  3  Q  4  A  5  Q  6  A  7  Q  8  A  9  Q  10 THE  COURT  11  A  12  13 THE  COURT  14 MR.  GOLDI  15  Q  16  17  A  18  Q  19  A  20  Q  21  A  22  Q  23  24  25  A  26  Q  27  28  29  A  30  Q  31  32  A  33  Q  34  A  35  Q  36  A  37  Q  38  A  39  Q  40  A  41  Q  42  43  44  45  46  A  47  Q  2232  anything to you?  No.  You know where the Buck Flats are?  Yes.  Yes.  And Parrot Lakes form part of the --  Yes.  What you've identified?  Yes.  As points on the boundary?  :  Was that lake Francis Lake?  Francis Lake was the road from Owen Lake to Francis  Lake.  :  Yes.  It would be sometimes called by the name Francois  Lake?  Yes.  Where is Wistaria?  Do you know where Wistaria is?  Wistaria is on the shore of Francois Lake.  You can get to it through the Owen Lake road?  Yes.  Yes.  And, in fact, that road is the usual means by which  the ranchers and the people who live around that  neighbourhood get out to Houston, is that not correct?  Yes.  Yes.  Now, we've been talking about forest recreation sites,  and there are three of them in the Gisdaywa territory,  are there not?  I think the ones that I know of is only two.  I see.  Well, there's one where you say your  grandfather --  Yes.  -- Joseph Nahloochs' camp was?  Yes.  There's another one at Owen Lake?  At the outflow only.  And isn't there a third on the Morice River?  Further up?  Further up, yes.  I don't recall.  I see.  Well, I'm going to ask Miss Sigurdson to see  if you can identify on the -- on the map which is  Exhibit 44A, my lord.  Firstly, let's see if the  witness can map spot himself.  Hold it on the table  here.  Can you find Owen -- the Owen Lake Road?  Here.  Yes.  And isn't the green spot with the numeral three 1  2  3  A  4  Q  5  A  6  Q  7  8  A  9  Q  0  A  1  MR.  GOLDIE  2  3  4  THE  COURT:  5  6  7  MR.  RUSH:  2233  above it the one that is one of the forest recreation  sites that you're familiar with?  Yes.  What about number four?  Yes.  Yes.  And on Morice River number two is that outside  your territory?  Yes, I think it is.  But you identify the other two?  Yes.  All right. Thank you. I think that entitles, my  lord, to tender that as an exhibit as 44A, which has  been marked for identification.  Well, to the limited extent that it's been  identified, yes, I think that's probably so.  That  will be Exhibit 44.  What's the number?  18 MR. GOLDIE:  44A.  19 THE COURT:  It was 44A.  It will now be 44.  20 MR. RUSH:  Thank you.  (EXHIBIT 44A:  Map)  Are you aware of an ecological reserve in the  territory claimed by Gisdaywa?  That's Exhibit 55A.  The map that Miss Sigurdson is holding up has a red  patch on it just above the confluence of the Morice  and Bulkley Rivers; is that right?  Yes.  I think Mr. Joseph agrees that that's what the map  shows.  But the next question is, Mr. Joseph, do you  know of an area in -- at about that point on the east  side of the Bulkley River, or of the Morice River, I  should say, that is set apart as an ecological reserve  by the Province of British Columbia?  East side of the Bulkley?  Yes.  East side of the Morice?  This shows the west side.  I'm sorry.  You're quite right.  The west side?  That area around Morice Canyon?  I believe that's correct.  Are you aware of something  that has been set aside by the province in that area?  I know there was a bridge going into there, but I  didn't know that there was an ecological reserve.  Have you heard the phrase ecological reserve before?  No.  21  22  23  2 4 MR.  GOL]  25  Q  26  27  28  29  30  A  31  Q  32  33  34  35  36  37  A  38  Q  39  A  40  Q  41  A  42  Q  43  44  A  45  46  Q  47  A 2234  1 THE COURT:  Is it possible to locate that on Exhibit 62?  2 MR. GOLDIE:  Does your lordship have Exhibit 62, the junction of  3 where the Morice River turns --  4 THE COURT:  Well —  5 MR. GOLDIE:  — North?  Yes, it is north.  6 THE COURT:  The map in Exhibit 62 doesn't — only has some  7 English names.  8 MR. GOLDIE:  Well —  9 THE COURT:  I can't remember now what these names mean.  10 MR. GOLDIE:  Fortunately one of the English names is Morice  11 River.  That's the main water course.  Does your  12 lordship have the -- we are going to have this problem  13 once more -- the north compass point pointing up?  14 THE COURT:  Well, I can, yes.  15 MR. GOLDIE:  It's easier if that's done.  16 THE COURT:  Yes.  17 MR. GOLDIE:  Now, with that pointing up in the mid part of  18 the -- of the claims area is a water course, and over  19 on the left side it's got Morice River running  20 parallel to it.  21 THE COURT:  Yes.  22 MR. GOLDIE:  If your lordship would follow that along it takes  23 quite a sharp turn.  24 THE COURT:  To the north.  25 MR. GOLDIE:  And goes north.  And if there's a little bow in  26 it -- in its procession north, and it sweeps for a few  27 yards west again and then resumes its course, and it's  28 in that area that the ecological reserve is.  29 THE COURT:  But that's surely not the confluence of the Morice  30 and the Bulkley Rivers, is it?  31 MR. GOLDIE:  No.  I was wrong in that.  I was talking about it  32 was just north of the confluence of the Owen Creek.  33 THE COURT:  Yes.  34 MR. GOLDIE:  And the Morice.  35 THE COURT:  All right.  I have that.  And that's near a location  36 that's marked on the map as  37 T-S-W-E-G-H-E-N-I-I-N-L-I-I, I think.  38 MR. GOLDIE:  Yes.  The ecological reserve is a little south of  39 that.  4 0 THE COURT:  Yes.  But you don't know anything about an  41 ecological reserve?  42 A   No.  43 THE COURT:  But you know there's a bridge going in there?  44 A   Yes.  45 MR. GOLDIE:  46 Q   Now —  47 THE COURT:  What do you think, Mr. Goldie, are you enjoying 2235  1 yourself sufficiently you want to continue, or do you  2 think this is a convenient place to adjourn?  3 MR. GOLDIE:  I'll swallow my disappointment, my lord, until  4 tomorrow morning.  5 THE COURT:  I'd be glad to sit longer, but they have scheduled a  6 pretrial conference for me.  7 MR. GOLDIE:  Your lordship will bear in mind that we commence  8 tomorrow morning at 10:30.  9 THE COURT:  We'll make up the time in the afternoon.  10 MR. GOLDIE:  One of my colleagues has drawn to my attention when  11 I asked that Exhibit 44A be marked it should retain  12 that number as an exhibit because 44B is a booklet and  13 that will come along.  It's been marked for  14 identification.  It will come along later.  15 THE COURT:  All right.  Then the exhibit can remain as 44A.  16 MR. GOLDIE:  Yes.  17 THE COURT:  Without the —  18 MR. GOLDIE:  Identification.  19 THE COURT:  — Condescending — all right.  One thing I wanted  20 to ask the witness, it's very general, if he can tell  21 me how far would you estimate it is in miles from  22 Houston -- to the Village of Houston and Tommy's cabin  23 site?  24 A   To the cabin site?  2 5 THE COURT:  Yes.  26 A  About eight miles.  27 THE COURT:  And from Houston, Tommy's cabin site and to the  28 north end of Owen Lake, how far would you say that is?  2 9       A   It's over 2 0 miles.  22 or 2 3 miles.  30 THE COURT:  From Houston, Tommy's cabin to north end —  31 A   Yes.  32 THE COURT:  20 to 22 miles.  There must be something wrong with  33 this map if that's so, because they look to be much  34 closer and the same distance on the map, but that may  35 be a cartography problem.  All right.  Thank you then.  36 We'll adjourn until 10:30 tomorrow.  37 THE REGISTRAR:  Order in court.  Court stands adjourned until  38 10:30 tomorrow morning.  39  40   (PROCEEDINGS ADJOURNED UNTIL JANUARY 6, 1988 AT 10:30 a.m.)  41  42  43  44  45  46  47 2236  1 I hereby certify the foregoing to be  2 a true and accurate transcript of the  3 proceedings herein to the best of my  4 skill and ability.  5  6  7 Peri McHale, Official Reporter  8 UNITED REPORTING SERVICE LTD.  9  10  11


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