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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1988-02-17] British Columbia. Supreme Court Feb 17, 1988

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 3635  1 Vancouver, B.C.  2 February 17th, 1988.  3  4 (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT)  5  6 THE REGISTRAR:  In the Supreme Court of British Columbia.  This  7 Wednesday, the 17th Day of February, 1988.  Calling  8 Delgamuuwk versus Her Majesty the Queen.  9  10 I caution you, Mr. Michell, you're still under  11 oath.  12 MR. GOLDIE:  Mr. Rush was here a moment ago.  13 MS. KOENIGSBERG:  I suspect he just went out to get his gown.  14 THE COURT:  Here he comes.  Mr. Rush is rushing back.  15 MR. RUSH:  Sorry, my lord.  16 THE COURT:  It's all right.  Thank you, Mr. Rush.  Yes, please,  17 whenever you're ready.  18 MR. RUSH:  Thank you.  Madam Registrar, would you please place  19 Exhibit 184 before Mr. Michell.  Thank you.  20  21 DAN MICHELL, Resumed:  22  23 EXAMINATION IN CHIEF BY MR. RUSH CONTINUED:  Mr. Michell, I'm now going to ask you about the  territory of Namox at Neel dzii teezdlii ben.  Goosley  Lake.  Have you been to the Namox territory --  Yes.  -- There?  And does the territory at Neel dzii  teezdlii ben belong to the house of Namox?  Yes.  And how frequently do you go to that territory?  I go there very regular like.  Okay.  Did you and Chief Namox, Lucy William, give  Alfred Mitchell permission to speak about the  territory and boundaries of Namox at Goosley?  Yes.  And you heard his testimony in court?  Yes.  And you read his affidavit?  Yes.  And is what Mr. Alfred Mitchell said about the  boundaries correct?  Yes, it is.  EL:  Well, I know what would have happened if I had  45 asked that question, my lord.  4 6 THE COURT:  Your friend would have objected.  47 MR. GOLDIE:  Yes.  24  Q  25  26  27  A  28  Q  29  30  A  31  Q  32  A  33  Q  34  35  36  A  37  Q  38  A  39  Q  40  A  41  Q  42  43  A  4 4 MR.  GOL] 1  THE  COURT  2  3  4  5  6  MR.  RUSH:  7  8  9  10  11  MR.  GOLDI  12  13  14  15  MR.  RUSH:  16  THE  COURT  17  MR.  RUSH:  18  19  Q  20  21  22  23  A  24  Q  25  26  A  27  Q  28  29  30  THE  COURT  31  MR.  RUSH:  32  Q  33  34  A  35  Q  36  37  38  A  39  40  Q  41  42  A  43  44  Q  45  A  46  47  Q  3636  :  Well, I think that what Mr. Rush is not asking the  witness to do is to verify the credibility of Mr.  Alfred but to indicate the witness' concurrence with  what he said.  At least, I expect that's what you  intended by your question.  That's correct.  It is.  I don't intend to go around  the boundaries again, and it -- this may have been  awkward, but nevertheless I think the expeditious way  to deal with the boundaries of the Namox territory  with this witness.  E:  I agree it's compendious.  The question that was  put to the witness was have you read the affidavit and  have you heard the testimony, and I'd like the two  distinguished.  Very well.  :  Yes.  Could you place before Mr. Michell Exhibit number 1  of the red book which is Exhibit 185.  I'm just showing you Exhibit number 1 of the red book,  Mr. Michell.  It's Exhibit number 185.  It is the  affidavit of Alfred Mitchell.  Have you read that  affidavit?  Yes.  All right.  And you've heard Mr. Mitchell's testimony  in court?  Yes.  And I want to direct your attention to Exhibit 184,  which is the sketch map of the Goosley territory.  It  may be underneath that red book.  :  He has it.  Now, Mr. Michell, you've had an opportunity of  reviewing that sketch map, have you?  Yes.  And do the boundary lines that are illustrated on this  sketch map reasonably correspond to the boundaries of  the Namox territory?  Yes, from my understanding when they pointed out these  territory to me it looks about right for me.  And when you say when they pointed out the territory  to me who do you mean?  Like all the elders like Lucy Namox and Alfred  himself, Pat Namox.  Okay.  And even at home my mother described these mountains  to us .  That's your mother Emma? 1  A  2  Q  3  4  A  5  Q  6  A  7  Q  8  9  10  A  11  Q  12  A  13  Q  14  A  15  Q  16  A  17  Q  18  19  A  20  Q  21  A  22  Q  23  A  24  25  Q  26  27  28  29  A  30  31  32 MR.  GOLDIE  33 MR.  RUSH:  34  Q  35  A  36  37  Q  38  i  39  A  40  41  Q  42  43  A   '  44  45  46  Q  47  3637  Yes.  And were you instructed about the boundary by anyone  else?  Yes.  Years ago by my grandfather Alfred Namox.  He previously held the name of Namox, did he not?  Yes.  Okay.  Now, Mr. Michell, do you recall answering  questions on an interrogatory on behalf of Chief  Namox, Lucy William?  On what question?  The interrogatory.  Yes.  Do you recall that?  Yes.  And do you recall there was a map attached to that?  Yes.  And have you had an opportunity of reviewing that map  in relation to Exhibit 184?  You mean comparison with this?  Yes.  Yes.  And is Exhibit 184 correct?  Yeah, this is -- seems to be a little more accurate  than the other one.  Okay.  And when you answered the questions on the  interrogatories in relation to the boundary at Namox  and appended the draft map what did you understand to  be the case about the boundaries in the draft map?  The draft map, to my belief, it was just an  approximation.  That it wasn't a final draft or  anything.  It was just sort of a --  :  I'm sorry.  What was that last word?  It wasn't a final draft, but then you trailed off.  But, you know, like to my mind I wasn't satisfied  fully with it.  Did you do -- did you have discussions with other  members of your house after?  Yeah.  After I talk to the knowledgeable people about  where the boundaries were.  And who were some of those knowledgeable people that  you then inquired with?  Well, it's Lucy, Namox, Lucy William, and my mother  Emma Michell, and Alfred Mitchell, and John Namox, and  Pat Namox.  All right.  John and Pat Namox are the sons of Alfred  Namox? 1  A  2  Q  3 THE  COURT  4  A  5 MR.  RUSH:  6  Q  7  8  A  9  Q  10  A  11  Q  12  A  13  Q  14  15  16  17  18  19  A  20  21  22  23  24  25  26  Q  27  A  28  Q  29  30  31  A  32  Q  33  34  A  35  Q  36  37  38  A  39  Q  40  A  41  42  43  44  Q  45  46  47  3638  Yes.  Thank you.  :  They are your uncles then, are they?  Yes, my lord.  And when you refer to Lucy you mean Lucy Holland or  Lucy William?  Yes.  Because there is a Lucy Namox, isn't there?  Yes.  And Lucy Namox is married to Pat Namox?  Yes.  All right.  Thank you.  Now, I want to ask you, Mr.  Michell, about the authority of the house of Namox to  make decisions in respect of the territory.  How do  you and the other members of your house make decisions  about the territory in respect of its use or in  respect of what happens there?  Well, it's an ongoing thing with all our clan, and  especially the ones that hold the names, the chief  names.  We get together and we all have meetings and  discuss what's -- what we're gonna do.  Like for the  use of it, and how it's going to be arranged, who's  gonna look after each area of the territory, and how  it's to be used.  And who -- who is permitted to use the territory?  All of our house member, the Tsayu clan.  And are there other people who are not Tsayu house  members but are given permission to use it by the  house?  Yes.  And are the decisions about who is given permission to  use the territory, are those decisions of the house?  Yes.  And can you tell me how are decisions reached among  the house members and the chiefs of the house?  How do  you arrive at a decision?  Well, we usually decide that at the feast hall.  Okay.  Where we can speak about it openly at the feast hall  with other chiefs listening in as witnesses.  And  there that final decisions are made to whatever is  gonna happen.  Within members of your own house, the house of Namox,  when you meet with other Namox chiefs are the  decisions that are taken by these chiefs, are they by  a consensus or by a majority vote?  How do you 1  2  A  3  4  5  Q  6  7  A  8  Q  9  10  A  11  12  Q  13  A  14  15  Q  16  17  A  18  Q  19  20  A  21  Q  22  A  23  Q  24  25  26  A  27  28  29  Q  30  31  A  32  Q  33  34  A  35  36  Q  37  38  39  A  40  41  42  43  44  Q  45  46  47  A  3639  proceed?  At times it's depending on how important the --  whatever needs to be decided upon it would be majority  or the consensus.  Okay.  And that depends on the nature of the decision,  doesn't it?  Yes.  Okay.  Are more important decisions decided in one way  or another?  How are more important decisions taken?  Well, then we really have to contact the head.  The  head chief has to be present.  And in that case is that consensus decision making?  Yes.  At times, you know, the head chief would appoint  another one next to herself.  Okay.  In this court action the head chief has  appointed you to speak for Namox, is that right?  Yes.  And is it because Lucy, I think you indicated  yesterday, was old?  Yes.  And she's not very well?  Yes.  Okay.  And do you recall when it was that Lucy Holland  or Lucy William was given the name, or received the  name of Namox?  I couldn't remember the year and the date, but I  believe that she held that name for the last 30 years  or so now.  Okay.  And does she have difficulty in getting around,  in moving about?  Yes.  For about last five years it seems.  And was it indicated to you when you were young that  you would be a likely successor to the name of Namox?  Yes.  My grandfather Alfred Namox mentioned that to me  when they first took me out on the territory.  Okay.  And at some of the feasts that are held by the  Wet'suwet'en people are you designated to speak for  Namox at the feasts?  Yes.  There are times when like these two head chiefs  Kweese and Namox had appointed me to speak on their  behalf, but other times it would be someone else like  Victor Jim, Misaloos, or Amos Naziel, Mutt, would  speak on behalf of Kweese.  Are there occasions on which when there are duties of  the chief outside of Moricetown that you are asked to  speak on behalf of --  Yes. 1  Q  2  3  4  A  5  Q  6  7  8  A  9  Q  10  A  11 THE  COURT  12  A  13 MR.  RUSH:  14  Q  15  16  17  18  A  19  20  21  22  23  24  25  26  27  28  Q  29  30  31  A  32  Q  33  34  A  35  36  Q  37  38  39  40  41  A  42  43  44  45  Q  46  A  47  3640  -- Namox?  And I take it from what you have said there  are also occasions when you are asked to speak on  behalf of Kweese or Florence Hall?  Yes.  Okay.  And was the All Clans Feast in Moricetown on  April the 6th of 1986 one of those occasions on which  you were asked to speak on behalf of Namox?  Yes.  Okay.  At that time I spoke for both Kweese and Namox.  :  I'm sorry.  At that time I was to speak for Kweese and Namox both.  Now, I just want to ask you if you can recall when the  decision was taken that you should speak for Namox in  the court case.  Can you just tell his lordship how  the decision was taken on that particular occasion?  Yeah.  At first when it was decided by our clan to  be -- to go into this court case, first of all I  believe that Kweese would represent both houses, Namox  and Kweese herself, but as they continued to have  meetings they decided that both house should be  represented separately.  And at that time Namox felt  that she would speak for herself with interpreter, but  later felt she was not well enough to do it so it was  decided by all our clans that I should go instead of  her and speak in her place.  All right.  Now, was the decision -- were the  decisions that were taken by your clan, Tsayu, and the  two houses, were these then announced at a feast?  Yes.  It's always announced.  And can you just tell us, Mr. Michell, why it's  important to announce it at the feast?  Well, so that we'd have other chiefs knowing what  we're doing.  Now, I wanted to ask you again about decisions that  are made in the house of Namox.  If there is an  emergency such as an unexpected death of a member of  the house can you tell me what the members of your  house do in order to make a decision to deal with it?  Well, they put up a small feast, and they don't really  go into all the food and stuff like that, but they  have a smoke feast where they invite all the chiefs  in.  And then are -- what happens there?  That's where they decide how they gonna take care of  whatever business at hand then. 1  Q  2  A  3  4  Q  5  6  A  7  Q  8  9  10  A  11  12  13  Q  14  15  A  16  Q  17  18  19  A  20  21  22  Q  23  24  25  A  26  Q  27  28  A  29  30  31  32  Q  33  34  35  36  37  A  38  39  40  41  42  Q  43  44  45  46  47  3641  Okay.  That's when they make decision of how to go about to  take care of business.  Are the chiefs, the sub chiefs of Namox, are they  always involved in these decisions?  They all have to get together.  Are the chiefs from -- from Kweese, are they ever  consulted about the decisions, or from other clans is  there advice that you take about these decisions?  Yes.  In feast hall Kweese and Namox work very close  together.  They would work as just one, not a separate  house when they are in the feast hall.  Okay.  So that when you host a feast the Tsayu clan  works as one?  Yes.  Okay. What about decisions that are made in respect  of Namox's territory, do you work as one there or do  you work separately?  Well, they sort of work together on it. You know,  they realize that they too are responsible for two  territories, Kweese and Namox.  Do the chiefs of Namox make the decisions about the  Namox territory and the Kweese chiefs make decisions  about the Kweese territory?  No, they don't.  How do decisions about territory get made in relation  to Namox's territory?  Well, like when I say they work together in that  manner for the territory Namox is the final head chief  that makes decision.  Kweese would give her advice in  order to work with her.  I see.  Now, on decisions which are major decisions,  if I may put it that way, is it -- must all the  members of the house be together or must there be  certain chiefs present for those decisions to be  taken?  Well, everybody gets involved.  You know, even those  members that have no hereditary chief names, they are  all involved.  Those that have names are the  responsible people to carry out whatever business that  comes about.  Okay.  Now, I'm going to ask you specifically, Mr.  Michell, about decisions concerning the management of  the Namox territory.  Do you and members of the house  of Namox make management and conservation decisions  about the Namox territory at Goosley and in respect of  its resources too? 3642  1 A   Yes.  2 Q   Okay.  And —  3 A   Like now for example that I am left in charge of it  4 and the chief -- our chief knows my ability to look  5 after the territory, so when I manage the territory I  6 do it without having to run back to her all the time,  7 that she would have confidence in me to take care of  8 it.  And then we sort of divide the responsibility as  9 has always been done in our area.  We have that where  10 it's called -- on the north side it's called Tsee zuul  11 ts'ak, and the south side is Neel dzii teezdlii they  12 call it.  So in the past in my experience Alfred Namox  13 used to look after the Neel dzii teezdlii side.  14 MR. GOLDIE:  Is that the north?  15 A   That's the south.  And the north side, what I  16 remember, Alfred Mitchell and big Tommy Mitchell, his  17 dad.  18 THE COURT:  I'm sorry.  Alfred Mitchell?  19 A   Yes.  And big Tommy Mitchell, his dad.  20 THE COURT:  Yes.  They looked after the north side?  21 A   They look after Tsee zuul ts'ak side.  22 MR. RUSH:  23 Q   Tsee zuul ts'ak side is the north side?  24 A   Yes.  25 MR. GOLDIE:  Is there a number for that?  26 THE SPELLER:  556.  And Neel dzii teezdlii is 542.  27 THE COURT:  Sorry?  28 MR. RUSH:  542.  2 9 THE COURT:  Thank you.  30 A  And later when Alec Tiljoe took over he looked after  31 the Neel dzii teezdlii side, and same manner Alfred  32 Mitchell and late brother George Michell looked after  33 the north side.  That's what I remember.  34 MR. RUSH:  35 Q   And Alec Tiljoe held the name of Namox?  36 A   Yes.  37 Q   So there was a division of responsibility for the  38 Namox territory?  39 A   Yeah.  It's big territory so they divide the  40 responsibility to look after.  41 Q   Now, in terms of today is the territory similarly  42 divided in terms of responsibility for utilizing the  43 resources in the territory?  44 A   Yes.  45 Q   And what -- what's the division today?  46 A  Well, I myself I look after the Neel dzii teezdlii  47 side, the south side, and Alfred Mitchell and Victor 3643  1 Jim are assigned to look after the Tsee zuul ts'ak  2 side.  3 Q   Okay.  Now, was there a meeting among house members  4 about who should look after the north side and the  5 south side in recent times?  I don't mean in -- before  6 the time that you're just now talking about, Alec  7 Tiljoe's time or Alfred Namox time, but recently?  8 A   Yes.  9 Q   Could you just tell us how the decision was taken that  10 Alfred and Victor should look after the north part and  11 you would look after the south?  12 A   Yeah.  We talked it over with all our chiefs and we  13 decided that that's how it was done before our time  14 and so we felt that was the right way to go about it.  15 That's how we set it up again.  We continue it on how  16 it was taken care of.  17 Q   And is this division in place today?  18 A   Yes.  19 Q   Okay.  Now, are there other people that work with you  20 on the south side?  21 A   Yes.  You see, like all the members are entitled to  22 use the whole area, the whole territory.  The division  23 I talk about for the chiefs is just the  24 responsibility.  I can go on the north side, and so  25 Alfred and Victor they can go and trap on the south  26 side any time.  It's just the responsibility that  27 is -- that they look after that area.  They are in  28 charge of it.  29 Q   All right.  Does Pat Namox, is he permitted to work or  30 go to the territory?  31 A   Yes.  32 Q   And what part of the territory does he go to normally?  33 A   He usually go with me in the south side.  34 Q   He works in the south side?  35 A   Yes.  36 Q   Okay.  And he -- he is Gus ga bagh?  37 A   Gus ga bagh.  38 Q   Thank you.  And he's -- he's Laksilyu?  39 A   Yes.  40 Q   So he doesn't have a right to be there.  He's  41 permitted by the house members to be there?  42 A   He's permitted.  43 Q   Right.  44 THE COURT:  Is there a number for that?  45 THE SPELLER:  411.  4 6 THE COURT:  Thank you.  47 Q   And does Lucy, when she is able, Lucy Holland William, 1  2  A  3  Q  4  5  6  A  7  Q  8  A  9  Q  0  A  1  Q  2  3  A  4  Q  5  6  A  3644  does she go to the south side at all?  Yes.  And Susan Alfred is one of the chiefs as well.  Does  she go to the south side, or which side does she use,  or does she use and go to the territory on occasion?  Like I say, she can use both sides.  Okay.  Now, Sarah Tait -- you know Sarah?  Yes.  She is the sister of Pat Namox?  Yes.  And Sarah, is she permitted as well to use the  territory?  Yes.  Okay.  And do you know Sarah Tait's name to be Wee ha  lyat?  Yes.  Wee ha lyat.  17 THE SPELLER:  Wee ha lyat.  Wee ha lyat, W-E-E-H-A-L-Y-A-T.  18 MR. RUSH:  Thank you, Mr. Mitchell.  19 THE COURT:  She would be Laksilyu as well?  2 0 MR. RUSH:  Yes.  21 A   Yes.  22 Q   And, Mr. Michell, I understand that both Pat Namox and  23 Sarah Tait are both from the house of Kwen beegh Yex?  24 A   Yeah.  I believe so.  25 Q   And Sarah is Alfred Namox's daughter?  26 A   Yes.  27 Q   Yes.  Thank you.  28 THE COURT:  Do we have a number or spelling for --  29 THE SPELLER:  413.  30 THE COURT:  Sorry.  415?  31 THE SPELLER:  413.  32 THE COURT:  413.  Okay.  33 MR. RUSH:  34 Q   All right.  Now, Mr. Michell, the — are non-Tsayu  35 members permitted to use the territory, or to be on  36 the territory with the permission of the house, the  37 chief or the chiefs of the house?  38 A   Yes, they are allowed with permission.  39 Q   And in giving permission to do so is this in any way a  40 violation of a Wet'suwet'en law, or does this have  41 anything to do with the changing of a Wet'suwet'en  42 law?  43 A   No.  It's not changing of the Wet'suwet'en law.  44 Usually -- or like my children would be allowed to go  45 there as Neg'edeld'es, but they don't inherit the  46 territory like on the mother's side.  47 Q   Yes.  Now, I understand that there is berry picking, 1  2  A  3  Q  4  A  5  Q  6  A  7  Q  8  A  9  MR.  RUSH:  10  11  Q  12  13  14  A  15  Q  16  17  A  18  Q  19  20  A  21  Q  22  23  A  24  Q  25  26  A  27  MR.  RUSH:  28  29  30  31  32  THE  COURT  33  MR.  RUSH:  34  35  Q  36  37  A  38  Q  39  A  40  Q  41  42  A  43  44  MR.  GOLDI  45  A  46  MR.  RUSH:  47  Q  3645  to your knowledge, on parts of the territory?  Yes.  There's two that I know of there.  Yes.  One is for huckleberries on the south side.  And that would be the south side --  Of the lake.  -- Of Goosley Lake?  Yes.  Neel dzii teezdlii.  Thank you.  Maybe I could just ask you if you would  place Exhibit 184 before Mr. Michell again.  Thank you  Now, I'm just showing you Exhibit 184 again, Mr.  Michell.  Can you say at which end of Goosley Lake the  huckleberry picking occurs?  Just along here.  You're pointing to the southeast end of the lake.  And  you said there was another kind of --  Blueberries.  Which is straight across from that.  Straight across from that point.  So it would be the  northeast side, would it?  Yes.  Now, have you hunted bear or moose in the late summer  or early fall on the territory?  Yeah.  Mostly every year I go out there in the fall.  And do members of your house go out and hunt for bear  or for moose in those periods?  Yes, they do.  I just want to show you, Mr. Michell -- could you  place before Mr. Michell the exhibit book, please.  And I'd ask you to turn to tab 3.  This is the black  exhibit book for Mr. Michell.  Yes.  Now, my lord, I  have the positive of this photograph.  :  Yes.  My copy's not bad.  I can make it out.  What I'll do is hand this up to your lordship so you  have a copy.  Now, Mr. Michell, I just wonder if you can identify  the two people in the photograph?  First the woman.  That's Lucy William Namox.  Yes.  Yes.  And the man?  Sylvester William, her husband.  Late husband.  All right.  And can you say about when this photograph  was taken?  Either during late July or August.  First week of  August.  E:  '87?  Yes.  Last --  Was it last year? 1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  2 4 MR.  25  26  27  2 8 THE  2 9 MR.  30  31 THE  32  33  34  35 THE  36  37  38  39  4 0 MR.  41  42 THE  4 3 MR.  44 THE  45  4 6 THE  47  3646  A   Yes.  Q   Okay.  And you see what appears to be a bear in the  back of the truck.  Is that what it appears to be?  A   Yes, it is a bear.  Q   You took this photograph, didn't you?  A   Yes, I did.  Q   Okay.  And was the bear shot on the territory?  A   Yes.  Q   And was it shot there -- who was it shot by?  A   Sylvester Williams shot that bear.  Q   Okay.  And Sylvester is the husband of, or was the  husband of Lucy?  A   Yes.  Q   And he had rights to be there as a result of that,  didn't he?  A   Yes.  Q   All right.  And where -- where was -- the truck that's  parked here, where was that located?  A   It's parked right beside the cabin.  It's on the right  hand side of the cabin.  Q   Okay.  The truck is on the right hand side of the  cabin, is that right?  A   Yes, from where I took the picture.  RUSH:  Now, my lord, what I'd like to do is give you the  better copy and I'll -- either it can go into the  exhibit copy and maybe you can just exchange that for  the photocopy that's here.  REGISTRAR:  You want this as an exhibit?  RUSH:  Yes, I would like that to be the next exhibit,  please.  REGISTRAR:  Exhibit 253, tab 3.  (EXHIBIT 253:  Photograph)  COURT:  I think, Mr. Rush, if you don't mind I just like to  look at it and keep all the exhibits together.  The  bear doesn't appear very clear in the photocopy, but I  have no doubts from looking at the picture, and if the  witness tells me, that it is indeed a bear.  RUSH:  I'll take this out.  What's the number of the  photograph?  REGISTRAR:  That will be 253, tab 3.  RUSH:  Thank you.  Okay.  COURT:  How did you get the bear in the truck, Mr. Michell?  A   Pardon?  COURT:  How did you get the bear up into the truck?  A   Had to pull him up. 3647  1 THE COURT:  Not by yourself, I hope.  2 A   No.  I got strong wife.  3 THE COURT:  This is a silly question, but I assume the bear's  4 dead?  5 A   Yeah.  6 MR. RUSH:  7 Q   Now, Mr. Michell, how do you and the other members of  8 your house consider the resources on the territory?  9 What do you consider it --  10 MR. GOLDIE:  Could we confine it to the witness at this point.  11 MR. RUSH:  Very well.  12 Q   How is it that you consider the access to the  13 resources that you have?  14 A  Meaning like what resource?  15 Q   I'm thinking of the bear, for example, and moose, and  16 other fur bearing animals, or even the berries and  17 roots.  What is -- perhaps I should rephrase it.  What  18 do you consider your authority to regulate these  19 resources to be?  20 A  Well, it's always been that way in the past.  It was  21 handed down to us by our forefathers.  And we are  22 brought up in those territory which we know that we  23 belong to the land and the land belong to us.  That's  24 one way of putting it.  And all the resource in it  25 that we are entitled to it.  And that is the reason  26 why we are always taught to respect the land and  27 everything that's in it.  28 Q   Is there a phrase that you use that describes the  29 resources and your --  30 A   Yes.  You see like even from experience I learn from  31 our forefathers that we are created by our creator,  32 and the land that we live on was created by the  33 creator.  And he provided for us the resources that's  34 on the land, and we look after it.  And we look after  35 the resources, as I would explain it, like it would be  36 like money in the bank with the white man.  He don't  37 clean it out and get it empty.  He always took care of  38 it and just use so much of it and leave the rest for  39 like safe keeping.  You look after it, eh.  You don't  40 kill off all the moose or all the other animals.  You  41 always took just what you need off the land.  And the  42 same thing with the berry patches.  They really  43 protect that.  I believe they were told that the girls  44 in the clan before they come of age, I don't know  45 exactly what year, 11 or 13, when that happens they're  46 not allowed to go into the berry patches otherwise,  47 you know, berry patches wouldn't produce any more 1  2  3  4  5  6  7  Q  8  9  THE  COURT  10  11  12  13  14  MR.  RUSH:  15  THE  COURT  16  17  MR.  RUSH:  18  19  Q  20  21  22  THE  COURT  23  24  25  26  A  27  MR.  RUSH:  28  THE  COURT  29  30  A  31  THE  COURT  32  33  34  35  MR.  RUSH:  36  Q  37  38  39  A  40  Q  41  42  A  43  Q  44  45  46  47  A  3648  berries for the future.  This is what I meant by  that's what I was told by our grandparents.  That's  how they really look after it, and they really believe  it.  And same thing for the animals too, you know,  when at that age they don't -- they're not allowed to  eat fresh meat that is killed on the territory.  Who are the main people who look after the resources  and harvest the resources?  :  I'm sorry, Mr. Rush, before you ask that.  I think  the witness gave us a word that wasn't spelled or  identified and which I didn't pick up, that I  understood him to be saying this word expressed the  sense or entitlement that he has just described.  Well, the expression money in the bank is --  :  No.  No.  It was considerably before that now.  I  think he said we call it and I left it blank.  I don't -- I didn't hear -- I didn't hear the word  myself.  Do you remember using a Wet'suwet'en word, Mr.  Michell, that stated the authority of the chiefs of  the house or yourself in respect of the territory?  :  It was more -- it was -- I understood it was more a  word that described the relationship between the  people and the land.  Now, I thought there was such a  word used, but I may have missed it.  Was it that part I said that we are part of the land?  Yes.  :  Yes.  Was there a word you used that describes that  relationship?  Well, see like I said that --  :  No, I don't want you to restate it.  It may be that  I thought you were using a word and I just didn't hear  you accurately.  The transcript will turn up the  words.  I'm sorry to interrupt.  Very well.  Mr. Michell, I want to ask you about who the main  people are who look after the resources or who harvest  the resources on the Namox territory today?  Tsayu.  And you have indicated that you are one of the people  who go there and trap?  Yes.  And who are some of the other people.  I know that  some people perhaps use the territory more than other  people, and at different times.  Can you say who today  is looking after the resources?  Well, today we got Billy Mitchell, my cousin.  Alfred 1  2  3  4  Q  5  6  A  7  8  9  10  11  12  13  14  Q  15  A  16  17  18  Q  19  A  20  21  22  23  Q  24  A  25  Q  26  27  A  28  Q  29  30  A  31  Q  32  A  33  Q  34  35  A  36  Q  37  A  38  39  40  Q  41  A  42  43  44  45  46  47  3649  Mitchell's brother.  He's out there trapping every  winter for the last few years.  And he's out there  trapping right now.  And is he in a part of the territory to which you have  directed him?  Yeah.  He's been trapping on the north side since  before Christmas.  When I was back home last -- about  two weeks ago and I went and seen him to find out how  he was doing, and he only got nine martens so far that  time.  That is discounting the bigger animals.  He got  some squirrels and weasel.  Don't count them.  So I  told him to move back to the south side and see how  he's gonna make out in that area.  And you understand he's trapping there?  Yeah.  When -- in the last time I went home again he  came to see me again and he told me that on south side  they can only set about six traps to each trapline.  Is that a few number?  Yes.  Before I know there used to be 35 to 40 traps in  those -- on that side of the mountain, Tsee Delk'en,  but it's all been logged off now.  All those areas  used to set traplines is all cleaned up.  That's on the south side, isn't it?  Yes.  And does the logging affect the ability to set a  larger number of traps?  Yes.  You said that you were out there about — you were out  to the territory about two weeks ago?  Yes.  Did you go to a cabin that was there?  Yeah.  Is that the cabin -- is that your cabin and the cabin  of the house members?  Yes.  Okay.  I went there and Billy was going to move in there so  we went in there and we discovered the cabin was  broken into.  Is that --  While I was fixing the lock in that cabin and I didn't  see these two people approach the house, the cabin,  but I just happened to spot them when they were  leaving.  And I went out to find out who they were.  And I called after them and ask them what -- what they  were doing there.  And they came -- walked back to the  cabin.  And I figured he had a uniform, top uniform, 3650  1 the younger guy.  I thought he was from fish and  2 wildlife so, you know, I start to joke with him  3 because they always when they impose their regulation  4 on us and they watch us closely all the time.  I  5 thought they were investigating us again so I start to  6 tell him, so you got your lawyers with you this time I  7 said to him, because I see a person dressed in suit  8 and top coat was with him.  Of course they walk about  9 thousand miles from the road.  10 Q   Thousand miles you said.  11 A  A thousand yards -- a thousand feet from the road  12 where it's not plowed.  Just got snowshoes trail and  13 snowmobile trail, but they walked in there.  And after  14 I said that, and then I didn't read what was on his  15 shoulder there.  It was somebody from the forestry.  16 And then I introduce myself, and I shook hand with  17 them, and I asked them who they were.  And the young  18 guy told me he was with the forestry and he's out of  19 Smithers.  But the guy I recognized was Mr. Mackenzie,  20 the lawyer from here.  I recognize him so I ask him  21 who he was.  He gave me the name.  And I ask him where  22 he's from, who he's working for, and he told me he was  23 out of Smithers too.  But I didn't agree with him and  24 I told him you're out of Vancouver.  Then he changed  25 his mind and said "Well, at least I left Smithers this  2 6 morning anyway", he said.  And are you involved with  27 Equity Mine I ask him, and he said, "Well, I'm working  2 8 for the government."  That's all he told me.  That was  29 it.  He just walked away, and I explained it that  30 cabin was broken into.  And I told that forestry guy  31 that every time the logging takes place, you know,  32 they never notify me at all.  Not even in letters or  33 anything.  And he wrote it down.  And like they always  34 say that they will let people know when they gonna do  35 the logging in trapline areas so could get the person  36 to take his trap out, or something, but in our case  37 it's never been done.  38 Q   Mr. Michell —  3 9 A   Not to me anyway.  40 Q   Has your cabin been broken into on more than one  41 occasion?  42 A   Yes.  Several times.  43 Q   Have you -- have you ever been able to determine who's  44 broken into your cabin?  45 A   No.  46 MR. RUSH:  Could you place Exhibit 208, which is tab 8 in the  47 red book, photograph book from Mr. Alfred Mitchell 3651  1 before Mr. Michell.  I think it's right here, Madam  2 Registrar.  Maybe it would be just as easy for me to  3 get it.  Thank you.  4 Q Now, the cabin that you've been referring to, Mr.  5 Michell, is that the cabin that is shown in Exhibit  6 208?  7 A Yes.  8 Q That's your house's cabin, is it?  9 A Yes.  10 Q And I just want you to compare the photograph in  11 Exhibit 208 and the photograph that we have marked.  12 THE REGISTRAR:  It's 253.  13 MR. RUSH:  253.  14 Q Were they taken at the same time?  15 A Yes.  This is a different angle.  16 Q Okay.  17 MR. GOLDIE:  The bear is still there.  18 MR. RUSH:  The bear is still there.  19 Q Now, Mr. Michell, you mentioned that you had made a  20 decision about where Billy Mitchell was going to trap.  21 That he was -- you'd asked him to move from the north  22 side down to the south side and trap on the south  23 side?  24 A Yes.  25 Q And when -- when was that decision taken by you?  26 A About two weeks ago, the first time I went back.  27 Q About two weeks ago.  Was that the last time that you  28 were on your territory?  29 A Yes.  30 Q And have you been in Vancouver since that time?  31 A Yes.  32 Q Okay.  And normally how frequently would you go out to  33 your territory say over the winter?  34 A Well, if Billy's out there I normally just check with  35 him how he's doing.  36 Q And if Billy weren't out there how often would you go  37 out?  38 A That would be during the summer months.  39 Q Okay.  40 A I try to get out there every weekend.  41 Q Now, Billy is trapping for what kind of animal now?  42 A Well, can be marten.  43 Q Marten?  44 A Other fur bearing animals.  45 Q Now, you indicated that you trapped yourself, and your  46 trapping occurs in the spring and the summer?  47 A Yeah.  I go there springtime for beaver trapping. 1  Q  2  3  4  A  5  Q  6  A  7  8  9  10  11  12  13  14  15  16  17  18  Q  19  A  20  Q  21  22  A  23  Q  24  25  A  26  Q  27  A  28  Q  29  30  A  31  32  33  34  35  36  37  38  39  40  41  42  Q  43  A  44  45  46  47  3652  Okay.  And are there management and conservation  decisions that you take in respect of your trapping  for beaver?  Yes.  What's that?  What do you do?  Well, we look after it by experience that's been  handed down to us by our grandfathers and our father.  And I spoke on it before, like I refer to it as money  in the bank.  We know by the size of the beaver house.  And if there is a smaller house then we know that  there is maybe four beaver in there.  And the way we  are taught to trap them is that we have to set traps  further away normally, and the beaver dam below the  house is -- that's where you catch the bigger ones.  If you set it too close to the beaver house you  normally catch the small one, that's what they say, so  we don't do that.  You don't do that?  No.  And I think you told us as well that you yourself  hunted in the summer months in July and August?  Yeah.  And you're aware of the lottery system used by the  provincial wildlife department --  Yes.  -- For hunting?  Do you participate in the lottery?  No.  When do you hunt, is that before or after the lottery,  or do you --  Before.  But I usually stay out there in the cabin.  That's when I usually take my vacation.  Take my work  and I stay out there.  A year ago last fall I didn't  go out 'cause I was sick, and I was in hospital during  that time.  Year ago I watch how the hunters been  hunting in our territory.  The first two weeks, you  know, they -- nobody kill anything.  And the third  week that I was there I went home on Saturday morning,  I went back to the cabin for weekend, I went home and  I notice it's about three moose and two deer taken.  That just in one day by the pick-ups that's going by  our cabin, and --  Do you know if these were Indian or non-Indian?  Non-Indians that's got limited entry.  And there are  so many of them out in that area at that time.  And  I've noticed later on when I drive around all those  areas where it's been clear cut, you know, you can see  where there has been moose killed.  The remains of it. 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.  A  GOLDI  RUSH:  A  COURT  RUSH:  Q  A  Q  A  Q  A  Q  A  Q  A  Q  A  Q  A  3653  And some of them they leave the skin and the legs  still there.  So then everytime the moose comes out in  the clearing it's already got shot 'cause all those  clear cut area opening is all occupied by hunters that  are going out for the moose to come out.  You indicated that -- was it last year that you used  the cabin for your vacation?  Yes.  E:  He said he was sick last year.  No.  The year before.  Year before.  :  I have a note he said he didn't go out there last  fall because I was sick.  Well, maybe we should clear it up.  Did you mean last year, 1987, or did you mean a year  ago  9  was out there.  What year were you sick, do you recall?  So it was last year that --  '86 I  Yes.  '87.  '87.  Yeah.  Okay.  But you were -- you were out to take these  photographs of Lucy and Sylvester in 1987?  Yes.  Well, after I went out there about a week later  I had surgery.  That's how I was sick.  I see.  Thank you.  Kept me from doing much for time.  Yes.  Is the cabin of the house of Namox that you've  shown us in Exhibit 208, is that cabin used by other  members of your house for recreational purposes?  Yes.  My mother and all of my sisters and nephews.  And do you know what people do when they -- when they  go there for recreational purposes?  Well, they just like being out there.  They enjoy  outdoor living.  Especially the older folks.  Once I  took -- I went out there with Sylvester and his wife  Lucy, they went there, and late Peter Alfred and his  wife Madeline and all their family.  They all gathered  up there on the weekend 'cause Peter Alfred was Alfred  Namox's son too.  He was from his first wife.  That's  Pat, kind of step-brother to him.  They were out  there, you know, just enjoy territory.  Of course, you  know, when they raise up in the territory they feel  they're part of it and they just want to spend time up  there, you know, without getting anything out of it,  but they just want to be out there.  And when you say without wanting to get anything out 1  2  3  A  4  5  Q  6  7  A  8  Q  9  10  A  11  Q  12  13  A  14  Q  15  A  16  17  18  19  Q  20  A  21  22  23  Q  24  25  A  26  27  28  29  30  31  32  33  34 THE  COURT  35  A  36 THE  COURT  37  A  38 THE  COURT  39  A  4 0 MR.  RUSH:  41  Q  42  43  44  A  45  46  47  Q  3654  of it you mean without doing any harvesting of the  resources?  No.  Without taking anything from the land they still  want to be out there.  How old were you, Mr. Michell, when you first went to  the Namox territory?  I might have been about 11 or 12 years old.  Is that sometime around the early forties; '42, '43,  in there?  Somewhere around '43.  And you remember going out to the territory in that  time?  Yes.  And who did you go out with?  That's when I went out with my parents.  My mother,  Emma Michell, and little Tommy Michell, my dad.  They  had along my little sister Beatrice who was just a  baby.  Was Alfred Namox --  Alfred Namox and his wife Josephine Namox, and my  grandfather and grandmother.  And Pat Namox went along  with them that time.  And what was happening at that time?  What were you  doing and what were your parents doing?  Well, they went out there to trap before Christmas.  They stayed out there from late October until  Christmas time.  And that's when my grandfather and  grandmother used to tell me story about the past, and  sort of teaching me, you know, about how to respect  the animals and the territory.  And they took me along  on their traplines on occasion.  And they showed me  how to set traps and snares.  Snares were for the wolf  and fox.  :  For the wolf and the fox?  Yes.  :  Yes.  Or pardon me, coyote and fox.  :  Coyote.  Never seen wolf get caught in a snare yet.  It's a bit too wily for that.  When you were there at  that time when you were 11 or 12 do you remember where  you stayed?  Yeah.  It was a cabin that belonged to a settler.  I  believe he calls John Ericson was the name that had  the cabin before.  Did he abandon it? 1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16 THE  17 THE  18 THE  19 THE  2 0 THE  21 MR.  22 THE  2 3 MR.  24  25 THE  2 6 MR.  27  28  29  30  31 MR.  32  33 THE  34 MR.  35  36  37 THE  3 8 MR.  39  4 0 THE  41 MR.  42 THE  43  4 4 MR.  45 THE  4 6 THE  47  3655  A   Yeah, he left it there.  And my grandfather knew this  guy pretty well while he lived there.  He was -- my  grandfather was still trapping in the area when this  guy lived there.  And after he left I don't know what  the arrangement was, but I know my grandfather was  using that cabin.  Q   Okay.  Do you remember -- do you remember what part of  the territory that cabin was located in?  Yes.  It's below Neel dzii teezdlii ben, Sam Goosley,  about a mile and a half down that -- following that  creek.  Okay.  You call that Tloogh Tee Teet.  They call it Tloogh Tee Teet?  Tloogh Tee Teet.  COURT:  Could we have the spelling of that, please.  SPELLER:  567.  COURT:  I'm sorry?  SPELLER:  567.  COURT:  Shall we take the morning adjournment, Mr. Rush?  RUSH:  My lord —  COURT:  Yes.  All right.  Go ahead.  RUSH:  Just let me complete this one line of questioning, if  I may.  Yes.  A  Q  A  Q  A  COURT  RUSH:  Q  A  RUSH:  COURT  RUSH:  I just want to ask you, Mr. Michell, if Tloogh Tee  Teet -- just look at Exhibit 184.  Is that located  where the 1 or an I is located?  It's right about here.  Okay.  My lord, he's pointing about a millimetre or  two to the right of the 1.  Right.  Which is, as you'll see, between the N and the 4 on  184 to the southwest of Goosley Lake.  Do you see  that?  It's a small maroon 1 or I.  COURT:  Southwest or southeast?  RUSH:  Southwest.  It's difficult to make out, but it's  right here.  COURT:  All right.  Yes, I have a 1 there.  RUSH:  It's maybe to the west, but slightly to the south.  COURT:  All right.  I was looking at the other one down  there.  Southeast one.  All right.  RUSH:  Thank you.  COURT:  Thank you.  REGISTRAR:  Order in court.  Court will recess. 3656  1 (PROCEEDINGS ADJOURNED)  2  3 I hereby certify the foregoing to be  4 a true and accurate transcript of the  5 proceedings herein to the best of my  6 skill and ability.  7  9 Peri McHale, Official Reporter  10 UNITED REPORTING SERVICE LTD.  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 1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  THE  MR.  3657  (PROCEEDINGS RESUMED PURSUANT TO A SHORT ADJOURNMENT)  REGISTRAR:  Order in court.  MR.  THE  MR.  COURT:  RUSH:  Q  A  Q  A  Q  A  Q  A  Q  A  RUSH  SPELLER  RUSH:  Q  Mr. Rush.  Mr. Michell, you said that your parents and your  grandparents told you about the territory when you  were first out there as a young boy, age 11 or 12.  How did you learn about the places on the territory?  Well, they usually tell me about those mountains that  are on the boundaries and some places where they have  their traplines, they have names.  I can remember some  of them.  Were you taken to parts of the territory by your --  Yeah.  By my father and my mother.  They went as far  as Leeyin Diint'ai.  They travel alongside the lake  from Tloogh Tee Teet onto -- and we camped once before  we got to the cabin, trapping cabin.  By the way, it's  located in Leeyin Diint'ai.  Where is the trapping cabin at Leeyin Diint'ai?  It's east of Sam Goosley by the creek.  Is it approximately where the number 2 is located on  Exhibit 184?  Yes.  Is that Alec Tiljoe's cabin?  Yes.  Leeyin Diint'ai.  I've got that, 565.  Tloogh Tee Teet, 567.  A  Q  A  Q  A  Q  A  Q  A  Q  A  A  Now, Alec Tiljoe's cabin, is that still standing?  No.  And did you -- were you told about the places in the  northern side of the territory?  Yes.  And were these places told to you by your parents and  grandparents?  Yes.  And what places were you told about in the north?  Well, they call Tsee zuul ts'ak.  That's a lake, is it?  They call the lake up there Tsee zuul ts'ak ben.  And is that located where the black "F" is located on  the Exhibit 184?  Yes.  I didn't go there at that time, but I went in  there later with Alfred Mitchell.  And were you told about -- there's a name on the map,  Cenexw Dzel ts'aay?  Cenexw Dzel ts'aay. 3658  1 Q   Were you told about that too?  2 A   Yes.  They told me that was our boundary.  3 THE SPELLER:  552, Cenexw Dzel ts'aay.  4 MR. RUSH:  5 Q   That name was located on the north-east boundary of  6 the Namox territory?  7 A   Yes.  8 Q   Now, you told us, Mr. Michell, that you were  9 instructed and trained about the territory by your  10 parents and grandparents.  Are you yourself training  11 your nephews and nieces?  12 A   Yes.  13 Q   And other members of the house?  14 A   Yes.  15 Q   And can you just say who it is that you're instructing  16 about the territory and what you're telling them?  17 First, who are you telling?  18 A  Victor Jim, my nephew, and his brother, Peter Jim  19 Junior, and my sisters, mostly every one of them that  2 0 want to come out there with us.  21 Q   Okay.  And are you telling them about the territory?  22 A   Yes.  23 Q   And what else are you telling them when they come out?  24 A  Well, we pass on our experience to them, like how to  25 manage the resource, such as moose hunting and beaver  2 6 hunting.  27 Q   Do you tell them about the --  28 A  We tell them how we don't kill off all the animal at  29 one time.  We always use our own judgment, like, to  30 conserve what's there.  For example, my sons too, they  31 go out with me, Roger and Brian.  Once we went  32 hunting.  It was Alfred Mitchell, myself and Brian  33 Michell, my son.  We went hunting west end of the lake  34 where we know the moose usually come out towards the  35 evening or early in the morning.  When we got to end  36 of that lake, Alfred went hunting towards north.  He  37 walked in a bush to hunt, and me and my son, we stayed  38 by the lake.  While we waited there, one moose came  39 out with the calf, so we didn't bother shooting it.  40 We just let it be, because it had a calf.  It was a  41 cow moose.  And I was watching how they were behaving  42 and I just hide there.  It made some kind of a noise  43 to the calf there and they wanted to go swim across  44 the lake there, narrow part, and the little one just  45 keep going back to the site where he came from and  46 pretty soon that cow moose just give him a push and  47 somehow it making some kind of noise to it and they 1  2  3  4  5  6  7  8  9  10  11  12  Q  13  14  15  16  A  17  Q  18  A  19  Q  20  A  21  22  23  Q  24  25  A  26  Q  27  A  28  29  30  31  32  33  34  Q  35  A  36  37  38  39  40  41  42  43  Q  44  A  45  Q  46  A  47  Q  3659  both swam across to the other side.  And while they  were at the other side there, I could hear Alfred  walking back from his hunt.  I could hear him through  the bush.  I stood up and watch out for him.  As soon  as he came out in the open, he seen these moose, eh.  I seen them.  Seems like he aimed his gun, so I  hollered at him.  I told him, "Alfred, it's cow moose.  It's got a calf".  And he hollered back, "I was just  looking at them with my scope".  He knew that.  He  wasn't going to shoot them too.  That's how we teach  our children when they're with us.  Mr. Michell, I asked you about when you first went out  to the territory and you talked about the period the  early forties.  Did you go out again when you were a  little older with your father in about '47, '48?  Yes.  And was Alec Tiljoe there at that time?  Yes, he was, that cabin again in Tloogh Tee Teet.  And you were out with your father and --  My father, yes.  He knew the territory too.  He been  out there with my grandfather before, my father and my  mother.  Okay.  And later were you -- after '47, '48 were you  back?  At that time, you know --  Sorry.  -- we went and checked out all the areas where there's  beaver houses and there didn't seem to be any  worthwhile hunting, so we decided to go back at the  certain date.  We stayed there for a while and Alec  decided to go back with us at the same time.  I guess  they arranged that they all going to meet at Neenlii  Wek'ut boundary.  That's the boundary between Namox and Kanoots Madeek?  Kanoots.  At that time they arranged it so that we met  Peter Alfred, late Peter Alfred, late George Naziel,  and Peter Jim was with them and they met there at  Neenlii.  When we walking back, first of all, I guess  they told them that they going to need some signs on  the trail for them, that they going down to Neenlii,  so we follow them down there and that's where they  met.  And then did you --  And from there we all went home.  Together?  Together.  Were you -- were you back again to the territory with 1  2  3  A  4  Q  5  A  6  Q  7  8  A  9  10  11  12  13  14  15  Q  16  A  17  18  19  20  21  Q  22  23  A  24  Q  25  26  27  A  28  29  Q  30  A  31  32  Q  33  34  35  A  36  Q  37  38  A  39  40  Q  41  42  A  43  Q  44  45  A  46  Q  47  3660  Alfred Mitchell and Thomas Naziel in the early  fifties?  Yes.  Thomas Naziel was married to your sister, Bernadette?  Yes.  Do you remember how long you were out with Alfred  Mitchell and Thomas Naziel on that occasion?  We stayed out there for about a month.  At that time  we walked in.  It'll be over 30 miles' walk in  snow-shoes right from Houston on.  There was still  heavy snow at the time in the spring, and from -- we  did the same thing.  We camped at Tloogh Tee Teet for  a while.  We went up to Niss tsee Diizdlee Kwe, the  boundary.  That's on the east side of the territory?  Yes.  That's where Alfred showed us the -- a big tree,  that the bark was peeled off and there was writing on  it in -- in Indian writing.  We don't understand what  it says.  There was writing on it.  And Alfred told us  that was the boundary.  Was that the time when Alec Tiljoe was the chief who  held the name Namox?  Yes.  And after that time that you were out with Alfred  Mitchell and Thomas Naziel, did you go out every so  often with your family after that time?  At that time, after that, even at that time Alec  Tiljoe looked after the territory.  Okay.  Along with Alfred Mitchell looking after the north  side.  Okay.  And when you went out to the territory, was it  namely in the springtime that you went for the beaver  trapping?  Yes.  And did you take turns going out or did you go out  every year?  Well, whoever decides to go out usually go out there  and trap.  Alec Tiljoe passed on in the early seventies, I  understand; is that right?  Yes.  And when -- when Alec passed on, how frequently after  that time did you go out to the Goosely territory?  I go out there very regular after that.  Now, the -- are the resources that you have taken from  the territory, are these used by you and other house 1  2  A  3  Q  4  5  6  7  A  8  Q  9  A  10  Q  11  12  A  13  14  15  16  Q  17  18  A  19  Q  20  A  21  22  23  Q  24  A  25  Q  26  27  A  28  29  30  31  32  33  Q  34  A  35  Q  36  37  A  38  Q  39  A  40  Q  41  A  42  Q  43  44  A  45  Q  46  47  A  3661  members at your feasts, feasts hosted by Tsayu?  Yes.  And I understand that an example of a feast where  resources have been used was the feast for -- that  Lucy Holland, Namox, put up for the gravestone of her  brother, Donald Mitchell?  Yes.  That was in 1978, was it?  Somewhere around there.  And since that time has -- have meats and resources  been saved and used at Tsayu-sponsored feasts?  Yes.  Well, for that example there, you know, that --  we had the older cabin at the same site where we got  the new cabin.  That's where Lucy and Sylvester stayed  while they hunted for beaver.  Is that -- is that where number 3 is marked on Exhibit  184?  Yes.  Okay.  I went in there at that time and did some hunting for  them for beaver.  Everything I hunted I give it to  Lucy for the feast.  Now, the Neel dzii teezdlii territory.  Yes.  Goosely territory.  Why is this Namox's territory, Mr.  Michell?  Well, it's been handed down from generation to  generation.  Everytime, you know, like, another head  chief passes on, then it -- the successor has to bank  up material and meat for the feast, get ready for the  feast to take over the name.  It usually takes about  three feasts, I think, before it's completed.  Now, the crest of the -- of Namox is the beaver crest?  Yes.  And does the crest indicate the history of the House  of Namox?  Yes.  And there's also a -- the eagle crest --  Yes.  -- for the house; is that right?  Yes.  And do you understand that the crests of the house of  Namox originated with the Kweese raid on Kitimat?  That's what I was told.  And the -- and those crests have been handed down over  the generations?  Yes. 3662  1 Q   Now, are there steps which you have taken to manage  2 and protect your land in the time that you've held the  3 name of Wigetimstochol and even before, I suppose?  4 Are there things that you have done to protect your  5 land?  6 A   Yes.  By being out there.  First of all, you know, we  7 go in there.  We know, like with Wet'suwet'en people,  8 there are other Indians who might come into our  9 territories, so we watch out for that and they too  10 know that they are not supposed to go in there without  11 permission.  And then whenever there are nonlndians  12 come into the territories, we always go to them and  13 let them know -- let them know that is our territory  14 and we tell them that we occupy it all the time, like  15 going in there.  Even if we don't live there  16 permanently, we still go out there.  And anybody who  17 settles -- like, there's one settlement where Tloogh  18 Tee Teet is now.  Somebody moved in there.  I couldn't  19 recall what year it was, four or five years ago when  20 he first moved in there, and me -- and Pat Namox was  21 with me and our children were with us and we went in  22 there.  He had this no trespass sign on there on the  23 road.  So we left our vehicle there and we walked in  24 and met with this man and we told him that it was our  25 territory and we normally walk through the area and we  26 used to occupy that cabin that he's taken over.  And  27 we told him that, you know, and then he change his  28 mind about us going through his property.  He said as  29 long as he know that it's us, he said we could walk  30 through his property, and the reason why he had no  31 trespass sign was that he said his tools have been  32 stolen while he's building a house there.  That was  33 what he told us anyway.  But after he completed his  34 house, I believe he still had no trespass sign there.  35 It says "Keep out".  And we ask him what was his  36 reason for moving out there, where there don't seem to  37 be any civilization there, and he told us that it was  38 for his wife's health reason that -- for a climate  39 condition or something that he chose to be out there.  40 That's what he told us at the time.  But since then  41 somebody else has taken over the place again from what  42 I heard, but I never met this guy yet.  43 Q   Did you and Alfred Mitchell pass through this -- the  44 place where he had his no trespassing signs?  45 A   Yeah.  It's right on the turn-off on the main road to  46 access.  47 Q   Did you -- you're, of course, aware of Equity Silver 3663  1 Mine's territory?  2 A   Yes.  3 Q   Did you have any occasion to draw to the attention of  4 Equity Silver Mines and their personnel your concerns  5 about the territory?  6 A  Well, my mother keep writing them a letter about the  7 concern of our people, and at one time there was an  8 acid spill there.  9 THE COURT:  I'm sorry.  What type of spill?  10 THE WITNESS:  Acid.  11 THE COURT:  Thank you.  12 THE WITNESS:  So we were quite concerned about what was  happening at the time, because that creek coming from  that area, from that mine area, that was the creek we  use for drinking water.  It flows right beside our  cabin.  I'll just ask you to stop there, Mr. Michell.  Are you  able to find that creek on Exhibit 184?  Does it show  there?  This is the one.  If I indicate to you that the "X" on 184 has been  identified as the place of Equity Silver Mines and  number 3 is the place of your cabin --  Yes.  I believe this is the creek that flows onto the  creek over here and then flows into Neel dzii Ben.  This creek?  Yes.  Mr. Michell is pointing to the line just below the two  triangles, one filled in triangle and the other one an  open one, and identifies that as the creek that he's  made mention of.  And what did you -- what did you do  about your concerns?  Me and Alfred, we went up into Equity Mine and went  into their office.  Do you remember when that was, Mr. Michell, what year?  It's 19 -- this happened in 1982, late in the fall.  All right.  That spring we went into the office and we went to  trap beaver that spring.  The spring of '82, is it?  EL:  '83.  43 THE WITNESS:  '82.  4 4 MR. RUSH:  45 Q   It was the spring of '82?  46 A   Yes.  This happened in the -- late in the fall of '81,  47 so this hunting season for beaver was in the  13  14  15  16  17 MR.  RUSH  18  Q  19  20  21  A  22  Q  23  24  25  A  26  27  Q  28  A  29  Q  30  31  32  33  34  A  35  36  Q  37  A  38  Q  39  A  40  41 MR.  RUSH  42 MR.  GOLD 3664  1 springtime.  2 Q   All right.  So you and Alfred -- is that Alfred  3 Mitchell?  4 A   Yes.  Alfred Mitchell.  5 Q   You went to the mine?  6 A   Yes.  To meet with the personnel or anybody that was  7 in charge there, but they were not there, just the  8 office clerks or whoever they were.  The girls were  9 there.  And we left a message there, the reason why we  10 wanted to meet with them.  We were concerned that  11 beaver we take out might be contaminated from that  12 acid spill that flows into that lake and that creek  13 where we do our hunting for beaver.  So we told them  14 that was the reason why we wanted to meet with them.  15 And after we went home that time, next morning I get a  16 phone call from Doug Pearce from fish and wildlife  17 branch in Smithers.  And the information that he got  18 from the mine was that we told them that we found dead  19 beavers in the lake, in the creeks, which wasn't the  20 case.  We did not say that.  And I explained to Doug  21 Pearce our concerns too, that we -- when we do our  22 hunting, we eat that meat, you know, beaver.  We use  23 that for food.  We was afraid that it was contaminated  24 by that acid spill.  We want to be sure if it was safe  25 to take the meat for food that particular season.  2 6 That was the reason why we want to meet with them, but  27 we didn't get to meet.  28 Q   Did you have any concern about the water itself and  29 the —  30 A   Yes.  31 Q   -- ability to drink, your ability to drink it?  32 A   Yes.  Since then I usually take water with me from  33 home everytime I go in there, and even today Billy  34 still doing that, bring water from Houston.  35 Q   Is it still a present concern for you about the -- the  36 acid spill?  37 A   Yes, it is.  38 Q   And why is that?  39 A   Because you don't know when they -- when they say they  40 put other chemical in such as lime to neutralize that  41 acid, you still don't know what effect it will do to  42 human being after you consume that over the years, so  43 that's the reason why we can't take a chance.  That  44 might affect our health later in the years.  45 MR. RUSH:  Mr. Michell, have you been contacted, or to your  46 knowledge anyone in your house been contacted by  47 Equity Silver Mines or any government official? 3665  1 MR. GOLDIE:  Well, let's keep them separate, please.  2 MR. RUSH:  3 Q   Yes.  By Equity Silver Mines concerning the concerns  4 that you've raised about --  5 A   No.  6 MR. GOLDIE:  Well, I thought he just testified about somebody  7 from fish and wildlife.  8 MR. RUSH:  9 Q   Well, you asked me to keep them separate.  10 Now, apart from Mr. -- your contact with Mr. Doug  11 Pearce of fish and wildlife, has any other  12 representative of the government, the environmental  13 branch of the government or any branch of the  14 government contacted you regarding your concerns?  15 A  Well, at that time Doug Pearce, the only one that  16 responded to us, told me to -- any beaver that I  17 catch, to freeze it right away and bring it to them so  18 that they can send it away for testing or something.  19 And that particular year it's been really cold that  20 winter and the weather itself didn't warm up too good  21 that spring.  The ice was still frozen in the area  22 when the -- after May the 24th.  That ice was still  23 there until June.  We didn't do any hunting.  We  24 didn't get a chance to do any hunting for the beaver.  25 Q   Mr. Michell, are you familiar with a concern that's  26 been expressed about acid mine drainage?  27 A   Yes.  28 Q   What do you understand that to be in relation to  29 Equity Silver Mines?  30 A  Well, you see, to my understanding, they say that the  31 mine is only going to be there, by reading the papers  32 and Interior News, to maybe 1991 or something like  33 that, I believe, that I read one time.  What's going  34 to happen after they left that mine?  You know,  35 usually all that acid and stuff like that, you know,  36 that remains there.  They might cover it up when they  37 leave, but any case, you know, that never goes away.  38 It's there and it's going to leak out, seep out.  It's  39 going to continue to be there.  That is our concern.  40 Q   And in this respect do you also have a concern about  41 the water of Goosely Lake and the fish in Goosely  42 Lake?  43 A   Yes.  44 Q   Mr. Michell, you mentioned that your concerns were, I  45 guess -- that your knowledge, rather, about what was  4 6 happening was due to what you read in the newspapers;  47 is that right? 1  A  2  Q  3  4  5  6  A  7  8  Q  9  A  10  11  Q  12  13  A  14  MR.  GOLDI  15  MR.  RUSH:  16  MR.  GOLDI  17  18  THE  COURT  19  20  21  MR.  GOLDI  22  MR.  RUSH:  23  THE  COURT  24  25  MR.  RUSH:  26  Q  27  28  29  A  30  MR.  RUSH:  31  THE  COURT  32  33  MR.  RUSH:  34  Q  35  36  37  38  39  A  40  Q  41  42  A  43  Q  44  45  A  46  Q  47  A  3666  Yes.  And were you aware of a recent newspaper article in  the Vancouver Sun on February the 12th, 1988, which  addressed the question of the acid mine drainage at  Equity Silver Mines?  Yes.  That exactly just brings out what our concern  was .  And did this article heighten your concern?  No.  It just verifies that that's what's happening up  there.  Perhaps I should rephrase it.  When you read the  article, were you more concerned?  Yes.  I am more concerned.  E:  He just finished saying no.  I think he didn't understand the question.  E:  He answered very clearly.  He said it clarifies our  concerns.  :  He said it didn't heighten his concerns, just  clarified it.  I'm sorry.  Did he say clarified or  verified?  E:  I thought he said clarified.  I thought he said clarified, but I also --  :  I wrote verified, but I'll take your word for it.  You can put it again, Mr. Rush.  Thank you.  As a result, Mr. Michell, of your having  read the article in the Vancouver Sun, did you have  more concerns about the acid mine drainage?  Yes.  Now, I'm going to ask you a --  :  I'm sorry, Mr. Rush.  Was the article Thursday or  Friday?  It was Friday, February the 12th, 1988.  I'd like to ask you some questions about another  subject now, Mr. Michell.  You are registered with the  provincial government trapline in the area of the Neel  Dzii Teezdlii?  Yes.  And you're registered with a company of other  individuals?  Yes.  And those other persons are on the registered  trapline, are they Alfred Mitchell?  Yes.  Victor Jim?  Yes. 1  Q  2  A  3  Q  4  A  5  Q  6  7  A  8  Q  9  A  10  Q  11  12  13  14  15  16  17  18  19  A  20  Q  21  22  A  23 THE  COURT  2 4 MR.  RUSH:  25  Q  26  27  28  29  A  30  31  32  Q  33  34  35  36  A  37  Q  38  A  39  Q  40  41  A  42  Q  43  44  A  45  46  Q  47  3667  And Susie Alfred?  Yes.  And Sarah Tait?  Yes.  And is Gloria Mitchell and Lillian Michell also on  your registered trapline?  Yes.  And Patrick Namox?  Yes.  Now, you -- there has been entered as an exhibit here  Exhibit 245, my lord, which is part of Tab 17 of the  black binder that was submitted by the provincial  defendant in its cross-examination of Mr. Alfred  Mitchell.  Yes.  I think that's it.  Thank you.  I'm just showing you now Exhibit 245.  This is an  application for a registration of a trapline and you  see that the applicant's signature, there's the name  Dan Michell.  Is that your signature?  Yes.  All right.  The people that are registered there as a  group, are any of those persons deceased?  Yes.  Pauline Naziel.  :  I'm sorry?  Pauline Naziel.  Mr. Michell, when you signed as the applicant  here, what did you believe that you were registering  when you signed this?  First it is for transferring the registration over to  me, and to my belief is that to protect that territory  from somebody else taking it.  Now, the list of people that are registered as a group  or a company, are they the only ones that are  permitted to trap on your registered traplines, so far  as you're concerned?  No.  Who else may go there?  All the Tsayu clan and their children.  And are people who are not Tsayu clan members  permitted by your house to trap there?  Yes.  And these are ones whom you wish to permit to trap  there; is that right?  Yeah.  It would be the husband of the Tsayu clan or,  like, for example, my sons can go there by permission.  And Billy Mitchell's name is not here on this list,  but he is permitted by you to trap there? 3668  1 A   Yes.  2 Q   Mr. Michell, you'll notice on the left-hand side of  3 the lower portion of Exhibit 245, it says that  4 "Formally the trapline of Alec -- or Tiljoe Alec and  5 Company, Moricetown, B.C." and then below that it  6 says, "Alec Tiljoe is deceased.  Emma Michell was made  7 head man.  Line is being transferred to Daniel Michell  8 and Company as per band council resolution January 21,  9 1976".  And then in brackets it says, "TL1/76".  Now,  10 I want to ask you about the statement there as per the  11 band council resolution January 21st, 1976.  Can you  12 explain what relationship that has, if any, to the  13 transfer of the trapline, the transfer of the  14 registered trapline?  15 A   You mean the band council resolution?  16 Q   Yes.  The reference to the band council resolution,  17 what does that mean?  18 A  Well, as far as I can remember back, being the chief  19 and even before that when Johnny Mack was the chief, I  20 remember one incident when Louie Joseph was selling a  21 trapline that belonged to his late father, it was  22 registered into, and he was a member of his father's  23 trapline.  When his father passed away, he made a deal  24 with one nonlndian by the name of -- Forsythe was his  25 last name.  I forgot his first name.  26 MR. GOLDIE:  What's his name?  27 THE WITNESS:  Forsythe.  I believe he gave him some money in  28 payment of that trapline, but when the company found  29 out, like, the game warden, Les Cox, would not  30 transfer that into that nonlndian's name before he  31 made sure that this is what the people wanted, so he  32 notified the band council.  33 MR. RUSH:  34 Q   That is Les Cox did?  35 A   Les Cox.  36 Q   He was the fish and wildlife officer for a number of  37 years in Smithers?  38 A   Yes.  And when the people found out, the Laksilyu  39 clan, they put up a meeting where they invited Les Cox  40 in too and all the family of Louie Joseph, all his  41 sisters and his mother.  As a result of that meeting,  42 they put a stop to that sale of trapline, and that's  43 when I first seen that they use band council  44 resolution to accompany any transfer of trapline.  And  45 I believe that was just to prevent something like that  46 from happening.  You know, the hereditary chief  47 usually make a decision in a feast hall.  They talk 3669  1 about what's going to happen.  They let all the other  2 chiefs know when the transfer's going to take place.  3 When everybody agree, nobody disagrees with it, then  4 they accompany it with the band council resolution  5 before transfer takes place.  6 Q   So do the hereditary chiefs after the discussion in  7 the feast give instructions to the band counsellors  8 to —  9 A   To the band counsellor, yes.  10 Q   -- to pass the resolution?  11 A   Yes.  12 Q   And the example that you've been talking about in  13 respect of -- is it Louie Joseph?  14 A   Yes.  15 MR. RUSH:  I want to ask you to look at Tab 4 of the black  16 binder that's in front of you.  And there's an exhibit  17 under Tab 4 called 223.  I'd just ask you to look at  18 the first document under 223.  I'm sorry.  Your first  19 document is different from my first document in my  20 book.  I'm just going to ask you to look at the fourth  21 document in the line.  And I'm not sure, my lord,  22 whether or not it's the same fourth document that you  2 3 have.  24 THE COURT:  It's got a —  25 MR. RUSH:  It's in relation to —  2 6 THE COURT:  — document's number.  27 MR. RUSH:  It relates to the -- specifically to the Louie Joseph  28 and Company, George Joseph line.  It's dated January  29 18th, 1975.  30 THE COURT:  Does it have a document's number at the top?  31 MR. RUSH:  It does, but it's difficult to read.  It's XRTL14/75.  32 THE COURT:  Oh, under Tab 4.  I'm sorry.  Yes.  I think I have  33 it.  Yes.  I have it.  Thank you.  It's Exhibit 223.  34 MR. RUSH:  Yes, it is, but there are four documents under 223.  35 THE COURT:  Oh, all right.  3 6 MR. RUSH:  37 Q   And I'm only referring to one of them at the moment.  38 It's the one in relation to the Louie Joseph and  3 9           Company.  40 Now, Mr. Michell, is that the band council  41 resolution that you have just made reference to that  42 was passed --  43  44       Q   -- following the instructions of the hereditary  45  46  47 MR. RUSH:  Was that -- I'm not sure whether that actual document  A  Yes.  Q  -- following  chiefs?  A  Yes.  RUSH:  Was that -- 3670  1 was included in Exhibit 223.  2 THE REGISTRAR:  Yes.  All four.  3 MR. RUSH:  All four.  4 THE COURT:  All four were.  5 MR. RUSH:  Thank you.  6 THE COURT:  Maybe in view of what's happened, we should mark  7 them 223A, B, C and D.  8 MR. RUSH:  We should be sure which ones are which because  9 they -- my lord, the -- the numbering or the  10 sequencing in this volume is different, so it may be  11 that they're all different.  The one that I have is --  12 the first one is --  13 THE REGISTRAR:  223, the first date is June the 7th, 1982.  14 THE COURT:  Yes.  That will be A.  15 (EXHIBIT 223A:  Band council resolution dated June 7,  16 1982)  17 THE REGISTRAR:  Second date is September 10th, '79.  18 THE COURT:  That will be B.  19 (EXHIBIT 223B:  Band council resolution dated  20 September 10, 1979)  21 THE REGISTRAR:  Third date is September 10th, '79.  22 THE COURT:  Yes.  That will be C.  And that one, is the number  23 at the top 97/08/99?  24 THE REGISTRAR:  Yes.  25 (EXHIBIT 223C:  Band council resolution dated  26 September 10, 1979)  27 THE REGISTRAR:  And the last one is January the 18th, 1975.  28 THE COURT:  The one that we were just looking at identified as  29 223D?  30 THE REGISTRAR:  Yes.  31 (EXHIBIT 223D:  Band council resolution dated January  32 18, 1975)  33 THE COURT:  All right.  Shall we adjourn, Mr. Rush?  34 THE REGISTRAR:  Order in court.  Court is adjourned until two.  35  3 6 (PROCEEDINGS ADJOURNED)  37  38 I hereby certify the foregoing to be  39 a true and accurate transcript of the  40 proceedings transcribed to the best  41 of my skill and ability.  42  43  44  45 Kathie Tanaka, Official Reporter  4 6 UNITED REPORTING SERVICE LTD.  47 3671  1 (PROCEEDINGS RESUMED PURSUANT TO LUNCHEON RECESS)  2  3 THE COURT:  Mr. Rush.  4 MR. RUSH:  Thank you.  5 Q   Mr. Michell, before you I've placed Exhibit 223A, B, C  6 and D, and prior to the luncheon break I had asked you  7 about Exhibit 223D involving the band council  8 resolution for Louis Joseph and Company, and you've  9 told us about that.  And I want you to look at the  10 other band council resolutions.  If you look at 223A  11 this involves the Alexander Dennis and Company  12 trapline.  Was this -- was this BCR or band council  13 resolution passed pursuant to directions from the  14 hereditary chiefs?  15 A   Yes.  16 Q   And did -- did this BCR in this form, did that reflect  17 the transfer of the trapping rights according to the  18 mater line or mater linear line or the traditional  19 trapping rights?  20 A   Yes.  21 Q   I'd ask you to look at 223B which involves the Matthew  22 Sam and Company trapline.  Was that band council  23 resolution also passed pursuant to instructions from  24 the hereditary chiefs?  25 A   Yes.  26 Q   And did this also conform to the traditional trapping  27 system?  28 A   Yes.  29 Q   And Exhibit 223C, which is the next in line, the Louie  30 Tommy and Company trapline, was this passed pursuant  31 to instructions from hereditary chiefs?  32 A   Yes.  33 Q   And did that also conform to the trapping of the  34 traditional system?  35 A   Yes.  36 MR. GOLDIE:  Well, excuse me.  By that does my friend mean the  37 mater lineal line?  38 MR. RUSH:  I think so.  39 Q   We understand that, do we, Mr. Michell, that when I  40 say traditional according to the mater lineal line?  41 A   From our proper inheritance on the mother's side it  42 comes.  43 Q   Now, I want to go back to the application for  44 registration of a trapline that is found in Exhibit  45 245, or at tab 17 of the same book.  Just move  46 forward, Mr. Michell.  Take you to tab 17.  Now, you  47 see the bottom left hand corner the reference to the 3672  1 fact that the transfer to Daniel Michell and Company  2 as per band council resolution.  Was that band council  3 resolution passed pursuant to the instructions of  4 hereditary chiefs of Namox in the clan of Tsayu?  5 A   Yes.  6 Q   And did this too conform to the passing of the  7 trapping area in accordance with the mother's line?  8 A   Yes.  9 Q   Now, Mr. Michell, were you -- these band council  10 resolutions, to your knowledge, are such documents  11 used today?  12 A   For the last two years that I was in council I don't  13 remember of any requests was made to us for band  14 council resolution.  15 Q   Who requested these of you when these band council  16 resolutions were provided?  Who made those early  17 requests?  18 A   I believe the fish and wildlife wanted that company  19 transfer of registered trapline.  20 Q   Did they require it?  21 A   I do not know how it came to be, but when I got  22 elected, and even before I got elected I seen them  23 doing it that way.  24 Q   The fish and wildlife wanted this though, did they?  25 A   Yeah.  26 MR. GOLDIE:  I think he said they wanted something about the  2 7 company.  28 THE COURT:  Yes, he said that.  2 9 MR. RUSH:  30 Q   Do you know, Mr. Michell, if they wanted the band  31 council resolution to accompany is what I thought he  32 said.  Accompany.  33 MR. GOLDIE:  No.  34 A  Anyway --  35 THE COURT:  Shall we have it read back?  36 MR. RUSH:  I'm happy to have it read back.  37 THE COURT:  What have you got, madam reporter?  38  3 9 (REPORTER READS BACK)  40  41 MR. RUSH:  Well, that answer doesn't make any sense if it isn't  42 accompany.  43 MR. GOLDIE:  It made perfect sense to me, because the initial  44 discussion was with respect to a company.  45 THE COURT:  Yes.  That's how this question was introduced.  4 6 MR. RUSH:  47       Q   You've heard the discussion, Mr. Michell, what did you 3673  1 mean by what was just said?  2 A   I meant that these BCR is required to go along with  3 the transfer that's being made.  4 Q   To go along with it?  5 A  Along with it.  That's what I meant by company.  6 Q   All right.  Mr. Michell, thank you.  I'm not going to  7 refer you to those further.  I want to ask you -- yes.  8 Thank you.  I want to ask you again about the Namox  9 territory at Neel dzii teezdlii, Goosley Lake.  Can  10 you tell his lordship what the effect has been, if  11 any, on your rights of access or to use of your  12 territory as a result of the logging on that  13 territory?  14 A   Did you say the rights of access or --  15 Q   All right.  Can you tell me what the effect of the  16 logging has been on the territory of Namox at Goosley  17 Lake?  18 A   Yes.  Years ago when my grandfather Alfred Namox did  19 his hunting and trapping in the area, you compare that  20 to today when Billy Mitchell is trapping in the area,  21 whereas Alfred Namox usually gets somewhere in the  22 neighbourhood of hundred marten and other fur bearing  23 animal, and today Billy can only come up with nine.  24 And I remember back when Alec Tiljoe took over.  25 That's when they really started logging in that area  26 on Neel dzii teezdlii side, south side.  And he was  27 unable to trap that area because of the logging.  And  28 all through that time he tried to go out and trap, but  29 he was not successful.  And he's been complaining  30 about it.  At that time if you complain to anyone you  31 have to go through Indian agent in our district in  32 order to get to the government 'cause they usually  33 write up letters for the individual such as the  34 chiefs, the hereditary chiefs, and people that live in  35 the villages.  On their behalf the Indian agent used  36 to write letters for them.  So they have to write  37 letter to him to complain about these matters like  38 logging.  39 Q   Do you know how long ago it was that Alfred Namox took  4 0 upwards of a hundred beaver?  41 MR. GOLDIE:  Or was it marten?  42 MR. RUSH:  Yes, that's right, it was marten.  43 MR. GOLDIE:  I think it was marten —  44 MR. RUSH:  Yes, it was marten.  45 MR. GOLDIE:  Marten and other fur bearing animals.  4 6 MR. RUSH:  47 Q   Well, Mr. Michell, let's -- when you referred to the 3674  1 hundred of the Alfred Mitchell, or excuse me, Alfred  2 Namox, were you referring just to marten or were you  3 referring to marten and other animals?  4 A Well, he usually gets a hundred marten and then got  5 other fur bearing animals besides  6 Q Was there additional fur bearing animals?  7 A Yes.  8 Q Do you know what the number would have been of the  9 other animals?  10 A I don't know, because they don't -- when they come and  11 report back -- you know, like in the feast hall they  12 would mention how many they got.  They don't really  13 mention all the other fur bearing animals.  They  14 usually use the marten or the beaver.  15 Q How long ago was that?  16 A It was in between early forties and maybe late thirty.  17 Q I'm going to ask you about another area now, Mr.  18 Michell.  Your wife is Catherine?  19 A Yes.  20 Q And she is in the house of Knedebeas?  21 A Yes.  22 Q And have you gone to your wife's territory with her?  23 A Yes.  24 Q And is this the Knedebeas territory that's generally  25 located at Poplar Lake?  26 A Yes.  27 Q Okay.  And does Poplar Lake, do you know what name  2 8 that goes by on government maps?  29 A Well, in our language they call it Tac'ets'ol'een.  30 THE SPELLER:  325.  31 MR. RUSH:  32 Q And have you also been with your wife to a lake called  33 Pack Lake?  34 A Yes.  35 Q Which is in the -- is that also in the Knedebeas  36 territory?  37 A Yes.  38 Q What is the name of that lake in Wet'suwet'en?  39 A Xel ben.  40 THE SPELLER:  363.  41 MR. RUSH:  42 Q Have you been with your wife at either Poplar Lake or  43 Pack Lake and harvested any of the animals there?  44 A Yes.  45 Q And what have you harvested?  46 A Well, in there all I hunted is beaver in spring, and  47 moose, bear, deer.  I usually go fishing for lake fish 3675  1 like white fish, char and trout.  2 Q Were you on that Knedebeas territory with your wife's  3 permission?  4 A Yes.  5 Q And have you been there with other members of the  6 Knedebeas house?  7 A Yes.  8 Q Who are they?  9 A My wife's grandmother Christine Holland.  10 Q Did she hold the name of Knedebeas herself?  11 A Yes.  One of her son, Ben Holland.  And my wife's  12 cousin Sam Seymour, and my father-in-law Sylvester  13 William.  14 Q Have you been out there with Namox?  Have you been  15 there with Lucy Holland?  16 A Yes.  Sylvester, he was told to look after the area,  17 same as Alfred Mitchell, for his children like my  18 wife, and all the rest of the children like Helen,  19 Doris, Warner and Gerry.  20 Q That's Warner Williams, isn't it?  21 A Yes.  22 Q And Gerry?  23 A Gerry Williams.  24 Q Was this indicated at a feast?  25 A Yes.  26 Q Was that by Christine Holland?  27 A By Christine Holland.  28 Q And Warner Williams, is he -- what name does he go by?  29 A Noostel.  30 Q That's in the house of Knedebeas?  31 A Yes.  32 Q And Sam Seymour, do you know which house Sam is in?  33 A Yes.  He's brother of the present Knedebeas, Sarah  34 Layton.  35 THE COURT:  I didn't get Warner Williams.  36 MR. RUSH: Noostel.  I believe N-O-0 —  37 THE SPELLER:  188.  3 8 THE COURT:  18 8.  Thank you.  3 9 MR. RUSH:  40 Q So Sam would be a Knedebeas as well?  Sam Seymour.  41 A Same house, yes.  42 Q Yes.  Thank you.  Now, Mr. Michell, I'd like to place  43 before you the red photograph binder, and I'll ask you  44 to look at tab 21 of this binder which is marked as  45 Exhibit 221.  And do you recognize the people in this  46 photograph?  47 A Yes. 1  MR.  RUSH:  2  THE  COURT  3  MR.  RUSH:  4  Q  5  A  6  Q  7  A  8  Q  9  A  10  Q  11  A  12  Q  13  A  14  15  Q  16  A  17  18  THE  COURT  19  A  20  21  THE  COURT  22  A  23  24  25  MR.  RUSH:  26  Q  27  A  28  Q  29  30  31  32  33  34  A  35  Q  36  A  37  38  Q  39  40  A  41  Q  42  A  43  Q  44  45  A  46  Q  47  A  3676  The Polaroid shot is in the witness' copy, my lord.  :  Yes.  All right.  It's dated May 1980.  Who are the people there?  Sylvester and Lucy.  Lucy?  Williams.  Lucy Williams is Namox, and that's Sylvester Williams?  Yes.  And they're standing in front of a cabin?  Yes.  And can you say where that cabin was located?  Yes.  It's -- I don't know.  I never tried a compass  in that area, or anything but --  Perhaps it's just the lake.  It's just the lake.  It's on -- could be on the north  side 'cause it's --  :  I'm sorry.  Could be on the north.  As I said, I'm not too sure  because I don't --  :  Of what lake, please?  It's Poplar Lake.  It's Tac'ets'ol'een.  And right  near the end -- the end of the lake there is the  outflow of the lake.  Have you seen that cabin?  Yes.  Okay.  Now, I'd like to refer you to tab 4 of the  black photograph or document book that was introduced.  I just ask you if you can recognize in this copy  there's a photocopy, but in my copy there is an  original.  Do you recognize what is shown in that  photograph?  Yes.  What is that?  That is the remains of that cabin that was sitting on  before it burned down.  It's kind of a float thing.  When you say the remains of the cabin, is that the  same cabin that's shown in Exhibit 221?  Yes, that's the one.  And who is the person that's in that photograph?  It's Catherine Michell, my wife.  Okay.  And do you recall when that photograph was  taken?  Last year was '77.  I believe it was '76.  That would be '86?  '86.  Pardon me.  I'm ten years behind. 3677  1 MR. RUSH:  Does your lordship want to see the --  2 THE COURT:  Oh, I think it's all right.  Yes — well, yes.  3 Perhaps I should.  Yes.  Thank you.  4 MR. RUSH:  Thank you.  I'm going to place the original print in  5 the witness copy, my lord, and I'm going to ask that  6 be marked as the next exhibit, please.  7 THE REGISTRAR:  Exhibit 254, tab 4.  8  9 (EXHIBIT 254:  Photograph)  10  11 MR. RUSH:  12 Q   Mr. Michell, do you have any knowledge as to how that  13 cabin burned?  14 A  Well, that summer -- like my father-in-law and Lucy,  15 his wife, they trap in that area every winter.  They  16 looked after the territory.  But during the summer  17 they still go back up into the territory just to live  18 out there 'cause they enjoy being out there, and they  19 do fishing in summertime too in the lake.  And they  20 keep all their gears in there for trapping and  21 fishing.  And they usually keep that cabin locked.  22 And it got broken into it maybe couple of times for  23 all these years that it's been sitting there.  Once  24 when it was broken into they had a 20 horsepower  25 outboard motor was taken out of there, and it's never  26 been recovered.  And that last time they went there  27 that's when they discovered that the cabin was gone,  2 8 was burned down.  And they intended to live out there  29 and do some fishing.  When they went back they found  30 that cabin was gone.  31 Q   Do you know when that was?  32 A   It's in 1976 during the summer months.  33 Q   Okay.  You said --  34 THE COURT:  I think '86, isn't it?  35 A   '86.  36 MR. RUSH:  Yes.  Thank you, my lord.  37 A  And they had to go home.  And they told us about it.  38 And later me and the wife went with Sylvester and we  39 went back there to see what had happened.  And that's  40 when I took this picture -- photo.  And we've inquired  41 about it with the forestry, and they deny burning it.  42 This was during the hot summer when the fire closure  43 was on.  Nobody was allowed to do any burning.  So we  44 assumed that it was the forestry that did it because  45 all the area was pretty dry so whoever decided to burn  46 that to prevent forest fire.  I believe they had pump  47 and everything set up before they burn it down, but 3678  1 they deny it.  2 Q   Mr. Michell, were any of the contents of what used to  3 be in the cabin, were any of those found?  4 A   I'm coming to that.  5 Q   I'm sorry.  6 A   'Cause we had a cook stove in there, and a heater, and  7 the place had a metal roof on, and there was some  8 beds, spring beds, and as you can see we don't find  9 any of the remains there.  It's all cleaned up.  If  10 someone else had accidentally burned this the remains  11 could have been there.  12 Q   Did you find any of the contents of it?  13 A   No.  14 Q   All right.  Now, Mr. Michell, I'm going to ask you  15 about another area now.  Thank you.  You were the  16 chief councillor at Moricetown for 12 years?  17 A   Yes.  18 Q   And can you tell the court what types of decisions the  19 band council primarily makes?  20 A  Well, I look at it this way, we don't have much of  21 authority.  Like the band council we get elected under  22 the Indian Act, and when we carry out business in the  23 band level, which means in the village, we usually go  24 by the regulation from Department of Indian Affairs.  25 It doesn't matter what kind of project we undertake we  26 usually go by what the Indian Affairs tell us to do.  27 Mostly the decision that are made are always seem to  28 be made by somebody in Ottawa by the treasury board  29 they tell us.  It always goes down the line from  30 regional and then to our district office and then to  31 us, and we just carry out what they tell us to do.  32 Q   What kinds of decisions are made by the band council  33 of the village?  Could you give us some examples.  I  34 don't —  35 A  Any project we're gonna take on or any kind of a  36 decision usually is brought out at the general meeting  37 by all the band members, interested band members I  38 should say, and there are always some hereditary  39 chiefs in it.  And they sort of give us direction on  40 whatever project that's needed in the village such as  41 use an example, for building a school.  See they  42 wanted a school right in the village rather than our  43 children travelling 20 miles every day to school in  44 Smithers, so it was decided over a five year period  45 before the construction went ahead that that's when  46 they give us this direction and it's up to the band  47 council to work on it along with the band manager. 1  Q  2  3  A  4  Q  5  6  A  7  Q  8  9  A  10  Q  11  12  A  13  Q  14  15  A  16  Q  17  A  18  Q  19  A  20  Q  21  22  A  23  Q  24  A  25  Q  26  27  A  28  Q  29  30  31  A  32  Q  33  34  A  35  Q  36  37  A  38  Q  39  A  40  Q  41  42  A  43  Q  44  A  45  Q  46  A  47  Q  3679  Does the Village of Moricetown maintain a fire  department?  Yes.  And is there a volunteer group of members of the  Village of Moricetown that staff the fire department?  Yes.  And can you tell his lordship does the fire department  also operate an ambulance service?  Yes.  Does that fire -- does your fire department and the  ambulance service serve the village?  Yes.  Does it serve people who are off the village who are  not members of your village?  Outside of reserve too, yes.  Including non-Indian people?  Surrounding area of Moricetown.  Including non-Indian people?  Yes.  Are there hereditary chiefs who sit as the  councillors --  Yes.  — Of the band?  Yes.  Is it -- is it customary for there to be hereditary  chiefs who are councillors or chiefs of the band?  Customary?  Well, for example, you have -- you have been a -- or  you have been a band chief for 12 years, and you are a  hereditary chief?  Yes.  Prior to you I understand it was Johnny Mack who was a  chief councillor.  Was he a hereditary chief?  Yes.  Are there hereditary chiefs, to your knowledge, who  are presently on the band council?  There was always one or two.  Right.  Or more at times.  Okay.  Do you -- can you recall who are the present  members of the council?  My last term I could remember them.  Yes.  All right.  Let's go to your last term.  There was Warner William.  Warner William?  Yes.  And I think you've said that he holds the name of 1  2  Q  3  A  4  A  5  Q  6  A  7  Q  8  A  9  Q  10  A  11  Q  12  A  13  14  Q  15  A  16  Q  17  A  18  Q  19  A  20  Q  21  A  22  Q  23  A  24 THE  COURT  25  A  2 6 MR.  RUSH:  27  Q  28  A  29  Q  30  A  31  Q  32  33  34  35  36  A  37  Q  38  39  40  A  41  Q  42  43  A  44  45  46  47  3680  Noostel.  Yes.  He's in Knedebeas house?  Yes.  Yes?  Doris Michell.  Does Doris hold a hereditary chiefs' name?  Yes.  Do you recall what that is?  Just slips my mind now.  All right.  Who else was on that?  Yes.  She holds a name, but I just couldn't remember  right at the moment.  All right.  Alfred Mitchell.  Okay.  Who else was on there?  Ronnie Mitchell.  Yes.  Victor Jim.  And Victor Jim holds an hereditary chiefs' name?  Yes.  That is Misaloos?  Yes.  Misaloos.  And Antoinette Austin.  :  Sorry?  Antoinette Austin.  And did she hold an hereditary chiefs' name?  Yes.  Do you recall what that is?  No.  Okay.  Now, Mr. Michell, I want to ask you if when you  were chief councillor you were aware of a proposal  which has been called the blanket trapline proposal to  set up a registry of traplines under the Gitksan  Wet'suwet'en Tribal Council?  Yes.  And can you advise whether to your knowledge the  chiefs of Moricetown, the hereditary chiefs of  Moricetown participated in this project?  Yes.  And how did they participate?  What did they do to  your knowledge?  Well, there was several meetings were called in  different villages.  I believe once they were invited  into Hagwilget village, and then there was other time  that I was there too in Kitsegukla village.  And there was -- I can remember one in Moricetown. 1  Q  2  3  A  4  Q  5  6  A  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  Q  34  35  A  36  Q  37  38  39  40  41  A  42 THE  COURT  43  A  44 THE  COURT  45  4 6 MR.  RUSH:  47  A  3681  And were these the meetings -- meetings of chiefs and  house members to discuss the proposal?  Yes.  And can you tell his lordship what the purpose of the  blanket trapline proposal was, as you understood it?  Well, that -- at that time we were -- then we were  informed that the change of legislation was taking  place, and the fish and wildlife branch were -- says  that you have to harvest a fur bearing animal every  year.  If you don't do that within two years that the  fish and wildlife will transfer the trapline to anyone  else that's going to use it.  That was one reason.  And the other reason would be for some areas of the  trap -- registered trapline some of the trapline, the  territory, the owners of the territory feels that, you  know, the map is not accurate in most cases.  See like  our elders, they know their boundaries by mountains  and streams, but when the white people came with their  maps and their surveyors they drew the lines in  conjunction with the numbering that they put on the  maps.  And when they registered those trapline they  have to follow those surveyors' line.  And most of our  hereditary chiefs they didn't agree with those lines,  but they only went along with it because it was --  they figure it's close enough, but they themself know  where their boundary is, so -- 'cause I listening to  their meetings they say if they put the blanket  registration trapline on they would then later on sort  out their boundaries themselves within themselves, and  it would be managed by Gitksan and Wet'suwet'en Tribal  Council, and all the files would be kept in their  office it was decided by the chiefs.  And do you remember the year that the project was  first proposed?  Do you remember when it was?  I believe it was 1983, or something like that.  Okay.  And did -- was part of the project that the  Wet'suwet'en chiefs were to assign their interest in  the registered trapline to the Gitksan Wet'suwet'en  Tribal Council to manage that trapline on their  behalf?  Yes.  :  Who proposed it?  The chiefs.  :  The tribal council or the chiefs apart from the  tribal council?  He said the chiefs.  The hereditary chiefs. 3682  1 THE COURT:  The hereditary chiefs.  2 MR. RUSH:  3 Q   Now, what was the -- I want to show you, Mr. Michell,  4 a document which is at tab 5 of the book.  5 THE REGISTRAR:  Black book.  6 MR. RUSH:  Yes, the black document book.  7 Q   Okay.  I just want to refer you first to the second of  8 the two pages.  This is the document which appears to  9 have your signature on it, is that right?  10 A   Yes.  11 Q   And that's in respect of a trapline registered in the  12 name of Dan Michell?  13 A   Yes.  14 Q   And it says:  15 "I, Dan Michell the holder of the above  16 mentioned registered trapline hereby  17 authorize the transfer of my interests in  18 the registered trapline to the Gitksan  19 Wet'suwet'en Tribal Council Association.  20 For the purposes of this transfer, I agree  21 to the cancellation of the boundaries of my  22 registered trapline from Trapline No.  23 0609T064 Grid 93L/East to a blanket registry  24 held in the name of the Gitksan Wet'suwet'en  25 Tribal Council Association."  26  27 And then signed by yourself.  Was that -- was --  28 does that state what your understanding as to what was  29 to happen?  30 A   Yes.  31 Q   And then the -- will you look at the other page there,  32 the first of the two pages under that tab number five.  33 This is a document that is dated May the 8th, 1984  34 after the one that you signed.  Did you receive a copy  35 of that — of that document, Mr. Michell?  36 A   Yes.  37 Q   Okay.  And did you understand that the persons who had  38 signed this document were the officers of the  39 Gitksan-Carrier Tribal Council at that time?  40 A   Yes.  41 Q   I noticed, Mr. Michell, that under the name of the  42 vice president it's G.W.T.C.A..  Can you -- can you  43 recall whether or not at the time of this letter the  44 tribal council was known as the Gitksan Wet'suwet'en  45 Tribal Council?  That's in May of 1984.  46 A   I didn't get —  47 Q   I'm just wondering, the letterhead says 3683  1 Gitksan-Carrier Tribal Council.  See it at the top?  2 A   Yes.  3 Q   And the authorization is to the Gitksan Wet'suwet'en  4 Tribal Council, and then you'll see the first line of  5 the letter indicates that it's Gitksan Wet'suwet'en  6 Tribal Council.  7 A   Yeah.  8 Q   And was it your understanding that the name had been  9 changed by that time to the Gitksan Wet'suwet'en  10 Tribal Council?  11 A   Yes.  They used to use Gitksan-Carrier before.  The  12 reason --  13 Q   Do you know -- sorry.  14 A   The reason why it's changed was that we were called  15 Wet'suwet'en in the beginning, always been called  16 Wet'suwet'en, and that Carrier -- I guess they call us  17 Carrier, the white people call us Carrier people  18 because of all along the valley there all the way up  19 even to Prince George and east there they're called  20 Carrier at that time.  21 Q   All right.  Now, Mr. Michell, do you know what  22 happened to these documents?  23 MR. GOLDIE:  Well, before you answer that question, my lord, I'm  24 not sure what the relevance of this is.  When I sought  25 to examine, I think it was Mr. Sterritt for discovery  26 on this I was told this wasn't a relevant matter.  27 THE COURT:  On what basis are you putting it forward, or for  28 what purpose, Mr. Rush?  29 MR. RUSH:  Well, I'm putting it forward to demonstrate the  30 efforts taken by the hereditary chiefs to influence  31 and direct their authority in respect of their  32 traditional trapping areas and trapping areas which  33 have been defined for them by the Fish and Wildlife  34 Department as registered trapline -- traplines.  And  35 the relevance of this is to demonstrate the efforts  36 taken in 1984 by them to respond to the system that  37 they were under at the time, and a system that was  38 threatening to have their traplines taken out from  39 under them if it were not for the fact — if they were  40 not trapping within a two year period.  And in my  41 submission what this demonstrates is the response of  42 the hereditary chiefs to what is essentially an act  43 of -- an arbitrary act which goes to their very -- one  44 of the very key features of their livelihood.  That is  45 to say their trapping authority.  And this was the  46 response.  And in my submission you've heard at  47 considerable length about the registered traplines, 3684  1 the registered trapline boundaries, the regulations of  2 the Fish and Wildlife Department in relation to the  3 registered traplines.  We are -- it is suggested again  4 and again that these traplines represent alienations  5 of some form or another, although I think that is a  6 misdesignation.  But I think that what it will be  7 proposed at the end of the day by my learned friend is  8 that here is a demonstration under the fish and  9 wildlife legislation of the exercise of provincial  10 authority through the Fish and Wildlife Act, or the  11 Game Act, its predecessor.  And that this in some way  12 or another was a supplanted or removed the authority  13 of the hereditary chiefs.  And we say that we take  14 issue with that.  And we -- I think there is no  15 understating the clash of two legal approaches, one  16 pre-supposed by the province, and the other by the  17 hereditary chiefs.  And in my submission what this  18 demonstrates is a response by the hereditary chiefs to  19 a situation where they were going to lose their  20 traplines, and I think it's highly relevant in the  21 litigation.  22 THE COURT:  Mr. Goldie.  23 MR. GOLDIE:  Well, if that explanation had been given to me and  24 I had been allowed to continue my examination for  25 discovery I would have continued it.  As far as I'm  26 concerned if that's what my friend's position is I  27 think he ought to be allowed to proceed.  2 8 THE COURT:  So do I.  I think you should have brought an  29 application, Mr. Goldie.  Go ahead, Mr. Rush.  30 MR. GOLDIE:  I should say this, that the reason I didn't was  31 that at the time the position was taken that the  32 Gitksan Wet'suwet'en Tribal Council was not a  33 plaintiff.  34 MR. RUSH:  And that's still the case today.  They're not a  35 plaintiff.  36 MR. GOLDIE:  Well, my friend is saying that they are.  That they  37 cats paw the hereditary chiefs.  That's what he's  38 saying.  39 THE COURT:  Well, we'll see.  40 MR. RUSH:  If that can be taken out of my words I would be  41 amazed, but I've been amazed before.  42 MR. GOLDIE:  And you will again.  4 3 MR. RUSH:  No doubt.  44 THE COURT:  Want to mark these?  45 MR. RUSH:  Yes, please.  46 THE REGISTRAR:  There are two documents.  Which ones do you  47 want? 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  3685  MR. RUSH:  I think I'll mark them separately.  If we could mark  the first of the two, April 19th, 1984.  THE REGISTRAR:  Which one is that?  MR. RUSH:  That's the second of the two in order.  I would like  them switched in order.  THE REGISTRAR:  That will be Exhibit 255, tab 5, and Exhibit  255A.  MR. RUSH:  Yes, please.  Thank you.  THE REGISTRAR:  And 255B the May 8th, '84.  (EXHIBIT 255A:  Letter dated April 19, 1984)  (EXHIBIT 255B:  Letter dated May 8, 1984)  THE COURT:  Yes.  All right.  What do you think, Mr. Rush, is  this perhaps a better time to adjourn than in the  middle of your next question?  MR. RUSH:  Yes, I think it might be.  THE COURT:  All right.  MR. RUSH:  Thank you.  THE REGISTRAR:  Order in court.  Court is adjourned.  (PROCEEDINGS ADJOURNED)  I hereby certify the foregoing to be  a true and accurate transcript of the  proceedings herein to the best of my  skill and ability.  Peri McHale, Official Reporter  UNITED REPORTING SERVICE LTD. 1  2  THE  regist:  3  THE  COURT:  4  MR.  RUSH:  5  Q  1  6  7  8  9  A  10  Q  11  A  12  Q  13  14  A  15  Q  16  1  17  A  18  19  20  21  22  23  24  25  i  26  Q  27  28  A  29  Q  30  31  A   '  32  Q  33  A  34  MR.  GOLDIE  35  MR.  RUSH:  36  37  38  MR.  GOLDIE  39  40  41  42  43  MR.  RUSH:  44  THE  COURT:  45  46  47  MR.  GOLDIE  3697  (PROCEEDINGS RESUMED PURSUANT TO A SHORT ADJOURNMENT)  RAR:  Order in court.  Mr. Rush.  Mr. Michell, before signing Exhibit 255A that's in  front of you, were there any meetings of the members  of your house, the House of Namox, regarding the  blanket trapline proposal?  Yes.  And was there discussion about the proposal?  Yes.  And were you authorized to sign the document here on  behalf of your house?  Yes.  And do you have knowledge about whether or not other  Wet'suwet'en chiefs sign similar documents?  Yes.  Like, each representative, each clan, you know,  they usually go back to their head chiefs and -- who  are not present at times, you know, several meetings.  At times, you know, even when they're present, some of  them don't really understand.  Then we explain it to  them, what it's all about, and then, in turn, they  tell us, you know, in their own mind how to go about  it and then we -- that's how we arrive at the  decision.  Do you know whether or not these documents were sent  to the fish and wildlife office?  Yes.  Do you know if there was a response by any officer of  the fish and wildlife office?  Well, not directly to us.  Pardon me?  Not directly to us.  :  Well, is my friend going to pursue that?  I can only go -- pursue it as far as the witness'  knowledge and if he doesn't know about a response, I  can't go any further.  :  He said not directly to us, but he has also  identified the tribal council as the hereditary  chiefs.  I used the words "cat's paw" a few minutes  ago, to which my friend objected, but I'll use the  word "agent".  I —  I think that it is at least at worst a matter for  cross-examination, Mr. Goldie.  I don't think your  friend is required to pursue it.  :  No.  It's just going to extend the 3696  1  2  THE  COURT  3  MR.  RUSH:  4  Q  5  6  7  8  9  10  A  11  Q  12  13  14  15  A  16  Q  17  18  19  A  20  Q  21  A  22  Q  23  A  24  Q  25  26  A  27  Q  28  29  30  31  A  32  MS.  KOENI  33  34  35  36  37  38  39  40  41  42  43  44  45  THE  COURT  46  47  MR.  RUSH:  cross-examination, obviously.  :  All right.  I had been trying to avoid that and out of  consideration for that.  Mr. -- Mr. Michell, do you know whether or not  there was a response to the tribal council or any of  the chiefs who make up the tribal council to the  proposal of the -- for the blanket trapline?  Well, to my knowledge, I think it's been turned down.  All right.  Thank you.  Mr. Michell, I'm going to ask  you about another subject now.  Do you have knowledge  of a fishing site in the Moricetown Canyon that  belongs to the House of Namox?  Yes.  And were you -- do you have knowledge about the --  about that fishing site prior to the building of the  fish ladders which are in the Moricetown Canyon?  That means before --  Yes.  -- fish ladder?  Yes.  Yes.  And in order to build the fish ladder, was blasting  required of rocks in the canyon?  Yes.  Okay.  Now, were you -- or do you have knowledge of  the response of other chiefs or people in the village  of Moricetown to the blasting of the rocks in the  building of the ladders in the Moricetown Canyon?  What is --  L4SBERG:  Before my friend pursues this, maybe this is  an appropriate time to suggest if this line is  directed to the jurisdiction of the federal government  as opposed to what has been loosely referred to as the  limits of the jurisdiction of the federal  government -- we seem to be going at damage caused by  or unlawful or inappropriate acts of the -- of  fisheries.  In my submission, that's not covered by  the pleadings and my friends ought to seek to amend  their pleadings if they want to adduce this kind of  evidence.  It did come up when we were in Smithers and  I think it sort of wandered off with regard to  fisheries at that time.  :  What is the purpose of this evidence, Mr. Rush?  What is it aimed at?  Well, may I first say that in response to my learned 3699  1 friend, that Mr. Macaulay just the other day, I think  2 it was last Friday, conceded that the question of the  3 fishery was -- was an issue in the trial, and I mean  4 if my friend is now saying that it isn't an issue in  5 the trial, then I see that as somewhat of a  6 contradiction between what her colleague said last  7 Friday and the present position.  8 MS. KOENIGSBERG:  Well, lest my friend worry that I'm going to  9 contradict Mr. Macaulay, I certainly don't seek to do  10 that.  I think Mr. Macaulay and I would both agree if  11 my friend is leading this evidence such that he is  12 going to be arguing that it goes to the jurisdiction  13 of the federal government as opposed to any limits  14 which he might argue are placed on the jurisdiction of  15 fisheries, then, in my submission, the pleadings do  16 not cover that, and because of the way he's going at  17 this evidence, I think it raises the reasonable  18 suspicion that it is not directed at whether fisheries  19 is exercising their jurisdiction in one way or  20 another, but whether they have jurisdiction.  21 THE COURT:  Well, I -- I wonder if this touches the question we  22 talked about on Friday.  That is whether there's any  23 challenge in this action at all to federal presence in  24 the territory.  I hope to be able to deliver some  25 reasons for judgment tomorrow that -- that deal with  26 that question, and I have reached the conclusion that  27 the pleadings as they stand do not challenge federal  28 jurisdiction within the territory, but I don't think  29 that that's a problem that we have to be too concerned  30 with now.  We've heard this on a number of occasions  31 from other witnesses and the pleadings may be amended,  32 so it seems to me that we're going to hear this  33 evidence, I suspect, in one form or another.  I  34 confess I'm not sure what it relates to.  I'm not even  35 sure I understand the dichotomy counsel just described  36 here this afternoon.  Are you talking about limits of  37 jurisdiction?  38 MS. KOENIGSBERG:  Well, my lord, it actually is rather  39 confusing, but what I understand the issue to be, when  40 Mr. Macaulay said we understood after delivery of an  41 expert report that fisheries -- that the limits of  42 fisheries' jurisdiction were being put in issue, not  43 whether fisheries has jurisdiction, but, for instance,  44 when we're to use the sparrow analogy, it does not  45 challenge that fisheries has jurisdiction or that  46 decision doesn't stand for the proposition that  47 fisheries does not have jurisdiction over fishing, but 3700  1 rather are they exericising their jurisdiction within  2 certain limits.  3 THE COURT:  Is there activity within the jurisdiction?  4 MS. KOENIGSBERG:  Yes.  5 THE COURT:  All right.  6 MS. KOENIGSBERG:  Now, I, frankly, don't believe my friends have  7 even raised that issue on the pleadings, but we  8 couldn't say that we weren't aware that they were  9 raising the issue, whether they had properly raised it  10 on the pleadings or not.  When we get into the issue,  11 any other issue -- in our submission, we had no idea  12 until Friday the extent to which our friends are  13 purporting to put in their case as it seems to be  14 directed against the federal government, railways,  15 airports or the activities of Indian affairs in  16 administering their jurisdiction under the Indian Act.  17 That seems, from what my friends say, to be an issue.  18 It is not raised in the pleadings.  Now, when we're  19 dealing with evidence again which doesn't seem to be  20 going to conservation but the reaction of the  21 plaintiffs to the exercise of fisheries' jurisdiction,  22 it seems to me that -- and it doesn't seem to be  23 directed to conservation or anything else.  It raises  24 the issue again and, in my submission, the only way we  25 can deal with whether the pleadings are going to be  26 amended and we can have this issue squarely out and  27 know the case that we have to meet, we have really no  28 choice but to object as this evidence goes in, and if  29 my friends want to go ahead and lead this evidence,  30 then, in my submission, they should amend their  31 pleadings to be able to do so, and if they're not  32 going to amend their pleadings, this evidence ought  33 not to continue to clutter up the record.  34 THE COURT:  Mr. Rush, what are you saying about these fish  35 ladders?  That they're improperly there and should be  36 removed or that they've had an adverse effect on  37 fishing or what?  38 MR. RUSH:  Well, I think we've tried to bring forward evidence  39 that said a number of things.  Certainly one of them  40 isn't that they're there and they should be removed,  41 although I haven't canvassed that with my clients.  42 Maybe they'd like to see them removed.  But I do think  43 that there has been a -- a number of serious adverse  44 impacts of the building of the fish ladders.  These  45 adverse impacts are advanced to the Moricetown people  46 as benefits and so are said to be under the  47 jurisdiction of the federal fishery power, and of no 3701  1 doubt it will be argued that -- and I think there's a  2 distinction here without a difference.  Federal  3 fisheries will say they can do anything in respect of  4 the fisheries.  They would say they could put a dam  5 there.  And I say, with respect, that building a fish  6 ladder for the people at Moricetown was akin to  7 putting a dam there.  8 THE COURT:  Well, I'm not sure if it was put there for the  9 benefit of the people at Moricetown either.  I really  10 don't know what it was put there for, but it might  11 have been to enhance the salmon stocks for coastal  12 fishing for all I know.  That may have been the --  13 that may have been the purpose.  I'm not sure we're  14 going to investigate that issue.  Maybe we are.  15 MR. RUSH:  Well, I think, my lord, that you've heard some  16 evidence about the impact on the way of life.  What I  17 think is important in respect of the evidence is that  18 there is a way of life that's led by the Wet'suwet'en  19 people.  2 0 THE COURT:  Yes.  21 MR. RUSH:  And one of the ways of life is that fishing sites  22 were separately owned by the houses and the chiefs in  23 respect of the Moricetown Canyon, and that that -- the  24 blasting of the ladders or the rocks and the creation  25 of the ladders has had a serious impact on the ability  26 of the chiefs in the exercise of their way of life, in  27 the exercise of their authority in respect of their  28 own community and in respect of their fishing  29 community, which is essential to their way of life in  30 terms of the way that they can carry out their fishing  31 today.  And you will -- I think that it's a very  32 serious question for the people at Moricetown to deal  33 with the -- their regulation of their fishery and,  34 therefore, the exercise of their jurisdiction in  35 respect of the fishery, and I think that because of  36 the distinctions drawn in the -- in terms of  37 jurisdictional powers, it doesn't mean to say that in  38 respect of those jurisdictional powers that the  39 Wet'suwet'en people exercise their life in along the  40 boundary lines, if you will, of those jurisdictional  41 powers.  In fact, the people have an integrated and  42 holistic way of life and I say that you can't cut out  43 the way that people fish and exercise their authority  44 over their fishing sites from their authority in their  45 house, from their authority in respect of their land,  46 and I say that it is very important for your lordship  47 to hear the adverse effects upon the people, their way 3702  1 of life of such major interruptions, such as the  2 blasting of the Hagwilget rock and as the blasting of  3 the rocks in the Moricetown Canyon.  4 THE COURT:  I'm not going to stop you, Mr. Rush, because you've  5 said enough to satisfy me that there may well be a --  6 and even on the pleadings as they stand now, a  7 relevance to this evidence in the areas you've just  8 described.  I think that it's safe to leave for future  9 consideration the extent of the usefulness or  10 applicability or even admissibility of the evidence  11 that -- that I've been hearing you mention, these fish  12 ladders.  At the moment it's my view that the facts of  13 the ladders being present is a neutral fact except to  14 the extent that you've just described.  That is the  15 impact that it has on Wet'suwet'en life.  I am not at  16 the moment convinced, simply because I haven't pursued  17 it very far, whether a change of that kind, as  18 recently as 1950's, would mean all that much in this  19 case, but this isn't the time to make a decision.  20 Those matters are pretty much in my mind at least.  I  21 think you may proceed.  I think we're going to have to  22 spend some more time on this very subtle area.  I look  23 forward to hearing from counsel further after.  24 MS. KOENIGSBERG:  Just so I can understand your lordship so we  25 can have maybe a bit of direction as to when this  26 might be raised again --  27 THE COURT:  Oh, you can bring it up any time,  28 MS. KOENIGSBERG:  My friend, as I understand it, is saying one  29 way or another that the jurisdiction of fisheries is  30 being challenged and that while this evidence may go  31 to argue the social structure, if you will, or the  32 economic structure, traditional structure of the -- of  33 the plaintiffs, it also is for the purpose of  34 establishing that the federal government does not have  35 lawful jurisdiction over fisheries in the claim area.  36 If that is the case, I have to simply say that the  37 evidence should not be going in on the present  38 pleadings and we'll have to object each time until  39 there is an amendment so that we have some way of  40 dealing with what the issues are as against the  41 federal government.  42 THE COURT:  I have concluded that the evidence is admissible on  43 the basis just described by Mr. Rush.  I think that's  44 all that's necessary for the evidence to -- to be  45 heard.  The effect of it is another matter and I'll --  46 I'll no doubt hear from you in due course during the  47 trial or during argument whether that evidence can be 1  2  3  4  5  6  7  8  9  10 MS.  11  12  13  14  15  16 THE  17  18 MS.  19  20  21 THE  22  2 3 MS.  2 4 MR.  25  26  27  28  2 9 MR.  30 THE  31  32  33 MR.  34  35  36  37  38  39  40  41  42  43  44  45  46  47  3703  used for any other purpose.  I'm admitting it now for  a limited purpose.  That's what Mr. Rush has  described.  But I don't think you're under any  misapprehension, Miss Koenigsberg, about the position  of the plaintiffs.  Mr. Grant made that abundantly  clear on Friday, that the plaintiffs are saying that  the jurisdiction of the chiefs supersedes the federal  power in the territory in relation to fishing and  transportation.  That's what I understood him to say.  KOENIGSBERG:  Yes.  And I did understand him to say that,  and I think I understood your lordship also to say  that at the end of the day you would be unable to make  such a declaration even if the evidence were to  somehow convince you that was the case because it was  not on the pleadings.  COURT:  If I indicated that — I don't think I went that  far.  I think I'm going that far in my writing.  KOENIGSBERG:  That was my understanding.  So I guess I'm  slightly nonplussed as to the meaning of the pleadings  in this particular action.  COURT:  Well, I'm sure you'll be able to control yourself  for the rest of the afternoon.  KOENIGSBERG:  I'll try to get plussed.  RUSH:  Q   Now, Mr. Michell, as a result of the blasting of the  rocks in the Moricetown Canyon, was there an impact on  Namox's fishing site in the canyon?  A   Yes, there was.  RUSH:  What was that?  COURT:  I'm sorry.  Your questions related to the impact of  blasting.  I think you meant to go on to include the  construction of the ladder, did you not, or did you?  RUSH:  Q  A  Q  A  Well, I can frame it up as a conjunctive.  Mr. Michell, I'll just rephrase my question.  In  terms of the impact of the blasting of the rocks and  the building of the fish ladders, has there been an  impact on Namox's fishing site in the Moricetown  Canyon?  Yes.  Can you just tell us what that has been?  Well, before the fish ladder, Namox fishing site  called Ooyuk'een.  We used to fish there for spring  salmon.  And after the fishing ladder was put in, it's  not -- that fish ladder was not erected right over the  fishing site, but the blasting fill up the hole where  they used to catch fish and that fishing site is not 3704  1 usable anymore after that.  2 Q   Were there other fishing sites at the canyon, so far  3 as you know, that were impacted by the blasting of the  4 rock and the building of the ladders, other fishing  5 sites of other chiefs?  6 A   Yes.  7 Q   Now, prior to the blasting, do you -- are you aware of  8 the response of the people at the village of  9 Moricetown to the proposal to blast the rocks and  10 build a fish ladder?  11 A   Yes.  There was quite a few meetings before that fish  12 ladder was put in by the people of Moricetown and  13 Hagwilget, and at that time I believe that was Harold  14 Morgan or somebody from Kitwanga was the man that was  15 speaking on behalf of the Moricetown people.  16 THE COURT:  Was that Carl Morgan?  17 THE WITNESS:  Harold.  18 MR. RUSH:  19 Q   The late Harold Morgan?  20 A  Maybe I got the name wrong, but that's what I  21 remembered.  And the Indian Nation was always  22 involved.  23 Q   Now —  24 A  And they would tell our people that it would be a  25 benefit to them, and they put it to them like they  26 would put in a fish trap at the end of the fish ladder  27 or something; that they would have more access to the  28 fish when they needed it, and they will even put in  29 walk-in freezers for them.  But people still didn't go  30 along with it.  They still think that in the future  31 there wouldn't be as much fish as there used to be on  32 account of the fish ladder.  But then again they  33 promised them that they would bring in a carload of  34 fish if they have to to the village if the people  35 don't get as many salmon as they used to.  I believe  36 all along the people knew.  The way they protested is  37 that God had created this canyon in order to regulate  38 it, or the salmon is regulated according to God's  39 plan, they say, these old people.  See, like, before  40 that fish ladder was put in, as far back as I can  41 remember, you can see all those streams from Sus Kwe  42 all the way up to the Moricetown Fall.  There was  43 creeks that coming in into the Bulkley.  In the fall  44 you used to see them just full of coho salmon spawning  45 in those creeks.  But after that fish ladder was put  46 in, you see there is no more fish into those streams.  47 There's none in them.  They're all filled up with 3705  1 leaves, whereas when it was a spawning bed, you see  2 all the sand on the bottom just full of fishes.  So I  3 guess the old folks knew that that's what would  4 happen, so they really oppose that on that basis.  And  5 we seen the result after, because I know the old  6 people.  Like, the old ladies from Hagwilget is one of  7 my grandmother, Rosalie Austin.  He spoke up and said  8 in our own language, he said, "Don't blast that rock  9 because God put it there for a reason".  And like I  10 said, I've complained a lot of times myself too  11 against the completion of Kemano Dam.  I spoke in that  12 meeting for our people and I told them that the  13 government keep fooling around with nature.  Pretty  14 soon they're going to destroy everything, whereas we  15 say that God created everything and he had a plan for  16 everything, but the government thinks they're going to  17 change it and make it different.  Anything artificial  18 don't work.  19 Q   Mr. Michell, from your own experience can you -- can  20 you say whether there has been a reduction on the  21 number of -- or strength of the runs, the number of  22 fishing or strength of the runs that pass through the  23 Moricetown Canyon since the building of the fish  24 ladder?  25 A   Yes.  Quite a bit.  One thing it did do, like, all  26 those fishing sites were destroyed.  That's how our  27 hereditary chief had their -- sort of regulate the  28 fishing in the area.  They controlled it.  But it's  29 not there anymore now.  30 Q   Are the hereditary chiefs regulating the use of the  31 fishery at the Moricetown Canyon today?  32 A   In a way they've -- they had meetings about this by  33 telling us at the meetings their concerns about how to  34 regulate the fishing, because of some of the families  35 don't get any salmon, whereas just a few people  36 usually catch salmon and most of the families don't  37 get any, and that was brought up.  So they made the  38 recommendation, the chiefs themselves, that we put  39 someone in charge; that they should try to give some  40 salmons to all the elders in the community and try to  41 sell all the salmon that's caught there.  42 Q   Are there certain people who are designated fishermen  43 to fish for the elders?  44 A  Well, it was decided that people only under the age --  45 like, no one under the age of 16 should be allowed to  46 fish.  47 Q   This was the chiefs that decided this? 3706  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17 THE  18  19  20  21 THE  22  23  24 THE  25  2 6 THE  27  2 8 THE  2 9 THE  30 THE  31 MR.  32  33  34  35  36  37  38  39  40  41  42 MR.  43  44 THE  4 5 MR.  4 6 THE  4 7 MR.  A  Q  A  Yes,  Yes,  Because it was too dangerous for the younger one to go  fishing there, and so only the able-bodied person to  do the fishing.  Like, even myself now, I'm too old  for that, fishing there, fishing site.  Q   Did you -- did you get fish in the last fishing  season?  A   Yes.  Q   From whom did you get your fish?  A   I got some from Roy Morris and my -- one of my  nephews.  Peter Jim Junior gave us some.  Q   Do you know if Roy Morris and Adam Gagnon were fishing  for fish for the elders?  A  Well, I know they fish, but I don't know who they give  the fish to.  I don't keep track of that.  COURT:  Excuse me.  I take it that you didn't -- you can't  answer Mr. Rush's question that Roy Morris and Adam  Gagnon fished for elders.  You just know they fished  for some other people, do you?  WITNESS:  Yeah.  They said they did, but I didn't — I  didn't witness them giving it to a certain person, but  I know they did fish for some elders.  COURT:  Do you know if it was for elders or was it just for  others?  WITNESS:  Well, a lot of elders were thanking them after in  the feast hall.  COURT:  I see.  WITNESS:  Getting fish from them.  COURT:  Thank you.  RUSH:  Q   Are there -- are there meetings of the people who fish  in the canyon and the chiefs during the fishing season  concerning the fishery?  A   Yes.  Q   Was there an attempt by the hereditary chiefs to  regulate the fishery through a by-law?  A   Yes.  Q   And are you able to say when that occurred?  Do you  know what the date of that was?  A   Could have been 1983.  RUSH:  All right.  Now, I'd like to refer you, Mr. Michell,  to the black document book.  COURT:  Big one or small one?  RUSH:  The large one.  COURT:  Thank you.  RUSH: 3707  1 Q   It's the one the provincial defendant used in the  2 evidence of Mr. Mitchell.  I'll just refer you to Tab  3 19 of this book and at Tab 19 is Exhibit 248, which is  4 a by-law for the preservation, management,  5 conservation and use of fish on reserve and  6 traditional lands, rivers and waterways of the  7 Moricetown band.  Do you recognize that document, Mr.  8 Michell?  It's a document of several pages.  9 A   Yes.  10 Q   I think if you look to the back of this, your  11 signature is shown there as a signator to the band  12 council resolution passed on the 28th day of February,  13 1983.  And if you'll -- that is your signature, isn't  14 it?  15 A   Yes.  16 Q   And will you just look at the recitation clause?  17 There's the three whereas clauses at the beginning of  18 the by-law.  Now, Mr. Michell, were there meetings of  19 the chiefs and members of the houses in respect of  20 this by-law?  21 A   Yes.  22 MR. RUSH:  And can you say to his lordship, or explain to his  23 lordship what the purpose of the by-law was to be?  24 MR. GOLDIE:  Isn't it self-evident?  25 MR. RUSH:  Go ahead, Mr. Michell.  26 MR. GOLDIE:  Well, is it necessary for a witness to tell your  27 lordship what a resolution -- what its purpose is?  28 Surely it's self-evident, unless my friend tells us  29 that it's colourable and has another purpose that is  30 hidden.  31 MR. RUSH:  Well, I think the witness can explain what he  32 understands to be the purpose of the by-law.  33 THE COURT:  Well, as usual, both parties are right.  The  34 document speaks for itself unless it doesn't state its  35 purpose.  On the other hand, in order to lead into the  36 evidence of a witness, it may be useful to ask him a  37 general question of that kind.  I suppose what you're  38 asking the witness is what was the evil the by-law was  39 aimed at curing.  40 MR. RUSH:  Yes.  I'm happy to put it that way.  41 THE COURT:  You don't have to put it that way.  42 MR. RUSH:  I think we should know.  43 THE COURT:  I don't think we should embark upon a construction  44 of the document.  45 MR. RUSH:  I'm not asking to do that.  It's a very  46 straightforward question, my lord.  It might be that  47 there were additional purposes in the mind of this 3708  1 witness.  It may be there were fewer.  It may be that  2 he can reflect on the house's -- his house's view of  3 the document.  I don't think it -- I think it is also  4 aimed at in terms of --  5 THE COURT:  Well, I've read the preamble.  They say it all,  6 don't they?  7 MR. RUSH:  8 Q   All right.  Now, Mr. Michell, what happened with this  9 document after it was passed?  10 A  Well, we worked on it for I don't know how many years,  11 but after it was passed by the Minister of Indian  12 Affairs, David Crombie.  In the first place, the  13 by-law was intended that we take and exercise our  14 aboriginal rights, the jurisdiction over our resources  15 that we take from the canyon, which is salmon.  We  16 want to regulate that -- you know, like, our people  17 wanted it that way, like the way it was before,  18 because every meeting they talk about -- and they all  19 agree that when the pink salmon runs, some of them  20 fish by net.  They will take their nets out, and those  21 that use gaff hooks, they would not use the gaff hook  22 when the pink salmon was running.  They use dip nets.  2 3 And —  24 THE COURT:  What Mr. Rush asked is what happened to this by-law?  25 THE WITNESS:  But I'm explaining what was the purpose of it  26 first in case you didn't really understand our point  2 7           of view.  2 8 THE COURT:  Yes.  All right.  Go ahead.  29 THE WITNESS:  And at that same time, I believe Adam Gagnon made  the fish way for the -- above the ladder, at the upper  end of the ladder where when the fishermen catches  pink salmon in the dip net, it would release it right  in that little fish way without harming that pink  salmon.  That was part of the project too.  And it was  our intention of just start regulate our own fishing  site again, and it was after a group of people start  protesting against it, and I think the attorney  general supported their injunction and our by-law  didn't work out the way we want it to.  I just wanted to ask you, Mr. Michell, before the  by-law was passed or before the meetings occur about  the by-law, were there any Moricetown fishermen  charged with offences under the Fisheries Act?  Yes.  Were -- was that a concern to you?  Yes.  Because in those days, you know, like, the  30  31  32  33  34  35  36  37  38  39  4 0 MR.  RUSH  41  Q  42  43  44  45  A  46  Q  47  A 1  2  3  4  5  Q  6  7  A  8  Q  9  10  A  11  12  13  14  15  16  17  18  19  20  21  22  Q  23  24  A  25  Q  26  27  28  A  29  Q  30  31  A  32  Q  33  A  34  Q  35  36  A  37 THE  COURT  38  3 9 MR.  RUSH:  4 0 THE  COURT  41 MR.  RUSH:  42  Q  43  44  45  46  47  3709  Department of Fisheries, they really imposing more  restriction on our people each year.  One summer I  believe there was about 18 charges laid against our  Indian people in the area.  Was the by-law related to those charges and the  enforcement by the fisheries officer?  In what way do you --  Well, was the by-law intended to avoid the charges  under the Fisheries Act?  Yes.  It was -- in a way we set it up that we would  have control like -- I mean regulation which the fish  and -- fisheries department has.  When they got their  law into the villages there, and people, they don't  agree with their regulation, so they go against it.  They fight against it.  And it makes it harder even  for them to have any control over any regulation.  So  our people, the chiefs tell us that we ourselves will  have a better control and our own people will listen  to us than listening to the Department of Fisheries  and their regulation.  This is what was discussed at  the meetings.  The by-law was passed along with three other bylaws of  Gitksan bands; is that correct?  Yes.  And these were not disallowed by the Minister of  Indian Affairs, David Crombie; is that your  recollection?  Yes.  And then an injunction was obtained against the  bylaws; do you recall that?  Yes.  And that has been appealed, has it?  Yes.  And is the appeal, to your knowledge, pending before  the Supreme Court of Canada?  Yes.  :  Does the injunction relate to the by-law of the  Moricetown band or --  Yes.  :  All of them?  All four of them.  Mr. Michell, can you say whether or not prior to  the Minister of Indian Affairs, David Crombie,  allowing the by-law, were there previous by-laws which  were not allowed by the Minister of Indian Affairs,  previous drafts of by-laws which were not allowed? 3710  1 A   Different from this one?  2 Q   Yes.  3 A   You're talking about by-laws --  4 Q   I mean, I should -- similar by-laws that were in  5 respect of the regulation and preservation and  6 conservation of fish at Moricetown.  Let me put it  7 this way:  Similar in kind but not the exact same one  8 that was subsequently allowed.  Do you know if  9 various -- if different drafts went to the minister  10 and were disallowed?  11 A   For the same purpose as --  12 Q   Yes.  13 A   It was -- changes was recommended in the by-law, and  14 there has been changes made before it was passed by  15 the minister.  16 MR. RUSH:  Do you remember the year it was passed?  17 THE COURT:  This one?  18 MR. RUSH:  No.  The year the by-law was passed.  19 THE COURT:  Passed by the then council but disallowed.  20 MR. RUSH:  Passed by the then council and passed by the then  21 minister.  22 THE COURT:  Oh.  I thought — sorry.  I thought you said the  23 previous ones were -- were disallowed.  24 MR. RUSH:  Yes.  But, my lord, I think the evidence is that the  25 one in 1983 that's exhibited here was one of those  26 that was disallowed.  That's my understanding.  27 THE COURT:  Oh, well, I'm sorry.  I didn't understand that.  I  28 understood this one was -- I understood this one was  29 not disallowed.  I have a note, Mr. Rush, three other  30 Gitksan bands passed by-laws, four altogether, not  31 disallowed.  Is that wrong?  32 MR. RUSH:  No.  That is not wrong, but I'm advised that the  33 precise form of the by-law that was allowed is not in  34 exactly the form that is here in Exhibit -- Tab 19,  35 but if your lordship will allow me the evening to  36 clarify that, it might be easier tomorrow morning  37 through the evidence.  38 THE COURT:  All right.  Thank you.  Ten o'clock.  39 THE REGISTRAR:  Order in court.  Court will adjourn until ten.  40  41  42 (PROCEEDINGS ADJOURNED UNTIL FEBRUARY 18, 1988 at 10:00 A.M.)  43  44  45  46  47 3711  1  2  3  4  5  6  7  8  9  10 I hereby certify the foregoing to be  11 a true and accurate transcript of the  12 proceedings transcribed to the best  13 of my skill and ability.  14  15  16  17 Kathie Tanaka, Official Reporter  18 UNITED REPORTING SERVICE LTD.  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47

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