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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1988-05-10] British Columbia. Supreme Court May 10, 1988

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 5982  S. Marsden (for Plaintiffs)  Cross-exam by Mr. Goldie  1 Vancouver, B.C.  2 May 10, 198 8  3  4 (PROCEEDINGS RECONVENED AT 9:00 a.m.)  5  6 THE REGISTRAR:  Order in court.  In the Supreme Court of British  7 Columbia, this Tuesday, May 10, 1988, calling  8 Delgamuukw versus Her Majesty the Queen.  9  10 SOLOMON MARSDEN, resumed:  11 ALICE SAMPSON, Interpreter, resumed:  12  13 THE REGISTRAR:  I caution the witness and the interpreter you  14 are both still under oath.  15 THE COURT:  Mr. Goldie.  16  17 CROSS-EXAMINATION BY MR. GOLDIE, Continued:  18 Q   Mr. Marsden, I think you told Mr. Grant that you were  19 asked by the Kitwanga and the Gitsequkla to give  20 evidence here?  21 A   Yes.  22 Q   And the Kitwancool wish -- or hope that the Gitksan  23 will win this lawsuit, this court action; is that not  24 the case?  25 THE INTERPRETER:  Did you say Kitwanga or Kitwancool?  26 MR. GOLDIE:  27 Q   Kitwancool.  28 A   Yes.  29 Q   And you agreed to come and help the Gitksan in the  30 court action?  31 A   Yes.  32 Q   Some years ago the Kitwancool were aware that the  33 Nisga'a were bringing a court action in connection  34 with their land claims.  Do you recall that?  35 A   Yes, I remember.  36 Q   And the Kitwancool, in order to help the Nisga'a, did  37 not speak out when the Nisga'a claimed in the court  38 case, lands which the Kitwancool said they owned; is  39 that correct?  40 A   Yes.  41 Q   And in Exhibit 439 which is the Kitwancool  42 Comprehensive Land Claim, I find at page 22, and I'm  43 going to read it to you.  Perhaps you might tell him  44 what I'm going to do.  It's at the bottom of page 22  45 and I quote:  46  47 "For some years now the Nishga Tribal Council 5983  S. Marsden (for Plaintiffs)  Cross-exam by Mr. Goldie  1 has claimed that their people lay ownership  2 to the land which drains into the Nass River, from  3 the watershed which divides the Skeena and the  4 Nass drainage."  5  6 Now just pausing there, does that refer to the Kiteen  7 River area?  8 A   Yes.  9 Q   Thank you.  And at page 29, there is a photograph  10 which is entitled:  "Boundary with the Nishga marked  11 at Gyehl 'din (Kiteen River), 1976."  And you were one  12 of the people there; is that correct?  13 A   No.  This Gyehl 'din is not the boundary.  Git Xsi  14 ts'uuts'xwt is the boundaries.  15 THE INTERPRETER:  He says he doesn't know — it's a few miles  16 from Gyehl 'din.  17 MR. GOLDIE:  I see.  Mr. Marsden, what was the purpose of put-  18 ting up the marker which is shown in that photograph?  19 MR. GRANT:  You are referring to the sign?  20 MR. GOLDIE:  21 Q   I'm referring to the sign, that's correct.  22 A   The Kitwancool put the sign up.  23 Q   All right.  But is the sign — I thought Mr. Marsden  24 told us that the sign did not -- was not the boundary?  25 A   Yes.  26 THE INTERPRETER:  But he wanted to know who put the sign up.  27 A   Did the Kitwancool?  28 MR. GOLDIE:  At Kitwancool.  All right, now, what is the purpose  29 of the sign?  30 MR. GRANT:  Just the witness, I believe, asked a question as to  31 whether they put the sign up, and I'm not -- seems to  32 be some confusion.  33 MR. GOLDIE:  The question for Mr. Marsden is what is the purpose  34 of this, what was the purpose of putting the sign up.  35 THE INTERPRETER:  He asked who put the sign up.  36 MR. GOLDIE:  37 Q   And the answer is the Kitwancool put the sign up.  38 A   Yes.  This -- I was there when they put that up.  It's  39 not at Gyehl 'din, it's at Git Xsi ts'uuts'xwt.  40 Q   It's not what?  41 A   It's not at Gyehl 'din, it's at Git Xsi ts'uuts'xwt.  42 Q   All right, thank you.  Now I'm returning to page 22  43 and the Kitwancool land claim statement at this point  44 goes on to say, and I quote:  45  46 "The Kitwancool, cautious to prevent any injury to  47 the Nishga case which went before the Supreme 5984  S. Marsden (for Plaintiffs)  Cross-exam by Mr. Goldie  1 Court of this country, did not speak out."  2  3 And that is correct, is it not, Mr. Marsden, that the  4 Kitwancool did not speak out when the Nisga'a went  5 before the Supreme Court of the country?  6 A   Yes, yes.  That's what it was said, because there is a  7 way to settle this.  The Nisga'a have their way to  8 settle this and we have our ways to settle this, and  9 we did not want to get involved while their land  10 claims was going on.  11 Q   And —  12 A   The Kitwancool people did not let their territory go  13 just because they never spoke out, it's just that they  14 have respect for these people while they are in front  15 of the courts.  16 Q   Yeah.  And what was it that the Nisga'a, according to  17 Mr. Marsden's understanding, were seeking in the  18 courts?  19 A   The Nisga'a people want it made clear that they  20 were -- that they owned the territory that they were  21 claiming.  22 Q   And is that -- is that the same thing that the Gitksan  23 is seeking here?  24 A   Yes, it is.  25 Q   Same thing that the Nisga'a were looking for in the  26 Calder case?  27 A   Yes.  28 Q   Have the Kitwancool agreed not to speak out about land  29 that they claim which is claimed by the Gitksan in  30 this case?  31 A   I -- I could not answer that question because I am a  32 Gitksan, and -- and the reason why I am here is  33 because the chiefs chose me to be here.  34 Q   Well, did not the Kitwancool claim part of the Bowser  35 Lake area?  36 A   The Bowser Lake does not include the claim of the  37 Kitwancool.  It's right at the bottom end of Bowser  38 Lake.  39 Q   You mean the claim comes up to Bowser Lake, is that  40 what you are saying?  41 A   Yes.  42 Q   Yeah.  Well, did not the Kitwancool agree that they  43 would not make any claim in this lawsuit or in this  44 court action to any land near Bowser Lake?  45 THE INTERPRETER:  Just a minute, could you repeat that question  46 again.  47 MR. GOLDIE:  Yes, yes.  Have not the Kitwancool agreed that they 5985  S. Marsden (for Plaintiffs)  Cross-exam by Mr. Goldie  1 have no claim near Bowser Lake?  Haven't they agreed  2 with the Gitksan that they will make no claim in the  3 Bowser Lake area?  4 MR. GRANT:  Well, I just wonder, my friend has asked two  5 questions.  One is that they have no claim there and  6 the other is that they make no claim there.  It's an  7 important distinction.  8 MR. GOLDIE:  9 Q   Have they not -- I'll reframe my question.  Have they  10 not agreed with the Gitksan that they will make no  11 claim to the Bowser Lake area or anywhere near the  12 Bowser Lake area?  13 A   Okay.  No.  There was no -- we know where our  14 territories are.  15 Q   Um-hmm.  16 A  And what I want to say now is we have talked enough  17 about the territory of the Kitwancool, and I am here  18 to talk about the laws, I am not here to talk about  19 the chiefs' territories.  20 Q   Well that may be so, Mr. Marsden, but I have one  21 further question for you.  Did not the Gitksan agree  22 that the territory of Kitwanga Yal belong to  23 Kitwancool and --  24 THE INTERPRETER:  What is it?  25 MR. GOLDIE:  26 Q   Well, let's break that down.  Mr. Marsden, yesterday  27 you talked about Yal of Kitwanga.  Do you remember  28 that?  29 A   Yes.  30 Q   And is not the territory that once belonged to  31 Kitwanga or Yal, now part of the Kitwancool territory?  32 A   No.  The fishing site of Ska Hooxsit is close to  33 Kitwanga.  34 Q   And the territory Antgal Bakw which we mentioned is  35 with Kitwanga?  36 A   Territories.  37 Q   All right.  Now yesterday, Mr. Marsden, you said that  38 the tribal council had been appointed by the chiefs to  39 speak in the court case.  Do you remember that?  40 A   Yes.  41 Q   There was no tribal council in the old days, was  42 there?  43 A   No.  44 Q   When did the tribal council -- or when was the tribal  45 council appointed by the chiefs?  4 6 A   I don't remember the exact date when the tribal  47 council started. 5986  S. Marsden (for Plaintiffs)  Cross-exam by Mr. Goldie  1  Q  2  3  A  4  Q  5  6  A  7  Q  8  THE  COURT:  9  MR.  GOLDIE  10  THE  COURT:  11  MR.  GOLDIE  12  THE  COURT:  13  MR.  GRANT:  14  THE  COURT:  15  16  17  MR.  GRANT:  18  THE  COURT:  19  MR.  GRANT:  20  THE  COURT:  21  MR.  GRANT:  22  23  THE  COURT:  24  MR.  GRANT:  25  THE  COURT:  26  MR.  GOLDIE  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  MR.  GRANT:  42  MR.  GOLDIE  43  Q  44  45  46  THE  WITNES  47  Q  Mr. Marsden, were you a member of the tribal council  when it -- when it was appointed by the chiefs?  No.  Were you one of the chiefs that appointed the tribal  council to speak for the Gitksan in this case?  The Kitwancool didn't join this tribal council.  I see.  I'm sorry?  :  The Kitwancool did not join this tribal council.  I thought -- well.  :  Is that correct?  I shouldn't argue the evidence.  I'm sorry?  Well, all the documents I have seen have listed the  tribes or the villages represented by the tribal  council as including Kitwancool.  I don't think so.  You don't?  All right.  No, My Lord.  I think that may have been --  I thought it was one of the seven villages.  No.  There is eight villages and Kitwancool is the  eighth village.  Kitwancool is not a member?  No.  All right, thank you.  :  Mr. Marsden, there came into our hands a few days  ago, a sheet headed "Land Claims Legality," published  by the Interior News, Smithers, December 3rd, 1986,  and it consists of three pages with a stamp at the  bottom, Peter Williams, Hon. L.L.D., and there is a  map attached to it, and then there is another  typewritten page with a letter to the Editor of  Interior News, September 30th, 1987, and there is a  stamp, Peter Williams, and what looks like a  signature, Peter Williams, and it is said to be  presented at a meeting to certain -- presented "in  support of Kitwancool high chiefs orders to stop all  logging, April blank 1988."  Now I'll put that in  front of you and hand that to His Lordship, please.  Mr. Marsden, I refer you to --  Do you have one for the interpreter?  Yes.  I refer you to the last page.  Is that the  signature of Mr. Peter Williams, the president of the  Kitwancool?  S:  Yeah, that's right, that's his signature  And did the high chiefs of Kitwancool ask Mr. Williams 5987  S. Marsden (for Plaintiffs)  Cross-exam by Mr. Goldie  1 to inform Westar Timber Company, Bell Pole Company,  2 Hobenshield Bros., Orenda Forest Products, to stop all  3 logging in Kitwancool territories pending the Gitksan-  4 Wet'suwet'en case?  5 THE INTERPRETER:  Orenda Products?  6 MR. GOLDIE:  7 Q   I think it's Forest Products but it's not clear.  8 A   Yes.  When Peter send these notices out to the  9 companies, the chiefs got together and had a meeting.  10 He wasn't alone in this.  11 Q   No.  And was Mr. Marsden one of the chiefs?  12 A   Yes.  13 Q   Did the chiefs then authorize Mr. Williams to send  14 these notices?  And by "these notices" I mean all of  15 the notices that are attached -- that are in that  16 document I gave you?  17 THE INTERPRETER:  To the companies?  18 MR. GOLDIE:  19 Q   Yeah?  20 A   Yes.  21 Q   Yes.  And attached -- or part of these documents is a  22 map that is called "Kitwancool Territory".  Do you  23 recognize that map, Mr. Marsden?  24 A   Yes, I know this is the Kitwancool map.  25 Q   Do you know who drew it?  26 A   The company -- one of the companies sent us these  27 maps, this map, and Peter took a look at it and he  28 send it back.  29 Q   Well, is this not the map, then, of the Kitwancool  30 territory or is it?  31 A   Yes, it is.  32 MR. GOLDIE:  All right.  My Lord, may we have that marked.  33 THE COURT:  Yes.  That's Exhibit 449.  34 THE REGISTRAR:  Exhibit 449.  35  36 (EXHIBIT 449 - Five Page Document entitled "Land  37 Claims Legalities", Published by The Interior News,  38 December 3, 1986)  39  40 MR. GOLDIE:  41 Q   Mr. Marsden, have you ever heard of a map -- an old  42 map made by Mr. Sam Douse?  43 A   Yes.  He is one of the persons that -- that was trying  44 to outline the territory of the Kitwancool.  45 Q   At page 29 of Exhibit 439 there is a photograph of a  46 map of the Kitwancool territories stated to be 1918,  47 "Drawn by Samuel Douse of Kitwancool, photographed by 59?  S. Marsden (for Plaintiffs)  Cross-exam by Mr. Goldie  1 Louis Shotridge.  Courtesy of the University Museum,  2 University of Pennsylvania."  Mr. Marsden, have you  3 ever seen the original of Mr. Sam Douse's map?  4 A   No, I didn't see it.  5 Q   But you know there is such a map?  6 A   Yes.  He -- he was making the maps for the territory  7 of the chiefs.  8 Q   Mr. Sam Douse was?  9 A   Yes.  10 Q   Yeah, all right.  I want to show you a photograph.  11 I'm going to show -- My Lord, I've handed up a book of  12 documents and under tab 1 is the facing -- the  13 frontispiece and pages 49 and 50 of a publication  14 called The Museum Journal published by the University  15 Museum of the University of Pennsylvania.  And under  16 tab 2 are pages 117 to 148 of an article which is a  17 continuation of the first.  And then under tab 3 is a  18 photograph which my instructions are, is the same  19 document as in Exhibit 439 at page 29.  And I'm going  20 to show the witness a photograph of the photograph as  21 obtained from the University Museum, University of  22 Pennsylvania.  Perhaps His Lordship could see that for  23 a minute.  24 Now, Mr. Marsden, this is a photograph of the map  25 that is at the top of page 29 of Exhibit 439, and my  26 question is, have you ever seen a map like that?  27 A   No.  I think that was Samuel Douse.  28 Q   You think -- yes.  29 THE WITNESS:  But the actual piece of paper is not around.  30 Q   Is that correct?  31 THE WITNESS:  Yes.  32 Q   Now looking at this map, is it possible for you to  33 identify on it, any of the features -- and by features  34 I mean can you tell from that map where Kitwancool is?  35 THE WITNESS:  No, I can't.  There seems to be writing there and  36 I can't see what's on it.  37 Q   No.  It's too small?  38 THE WITNESS:  Too small.  39 MR. GOLDIE:  Right, thank you.  40 My Lord, the statement in Exhibit 439 is a -- at  41 page 29, "Drawn by Samuel Douse of Kitwancool,  42 photographed by Louis Shotridge.  Courtesy of the  43 University Museum, University of Pennsylvania," and  44 then goes on to make some identification and says,  45 "The northern portion of the Kitwancool territory has  46 been cut off in this particular photograph."  And I am  47 going to refer Your Lordship to tab 2 at page 139. 5989  S. Marsden (for Plaintiffs)  Cross-exam by Mr. Goldie  1  MR.  GRANT:  2  MR.  GOLDIE  3  MR.  GRANT:  4  MR.  GOLDIE  5  MR.  GRANT:  6  7  8  MR.  GOLDIE  9  MR.  GRANT:  10  MR.  GOLDIE  11  12  1  13  14  MR.  GRANT:  15  16  THE  COURT:  17  18  MR.  GRANT:  19  20  THE  COURT:  21  MR.  GRANT:  22  1  23  24  MR.  GOLDIE  25  26  27  28  29  30  31  32  ]  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  Is that listed?  :  Which?  Tab 2 of that document?  :  No, this is one I asked to admit.  I haven't seen these documents before, tab 2 or 3,  they weren't in the documents that I reviewed in your  notice to admit.  :  I see.  They weren't included in that list.  :  My friend states he hasn't seen this.  I was under  the impression that this was included in the group of  documents as submitted to him with a notice to admit.  In any event --  I just asked if they had been listed and I haven't  seen any of these documents before.  This isn't the sort of thing that would be listed in  the list of documents, would it?  Well the photograph is one of the things that I  was --  Well, I'm not --  I'm not taking a position yet, I was just trying to  determine from my friend if they had been listed and  he indicated they had.  :  Well, it's not a document that is in the  plaintiffs' possession or control in any sense -- or  the defendant's, in any sense of the -- as being  relevant to the case.  At least the case being put  forward by the plaintiffs.  What I am anxious to do,  given the evidence of Mr. Marsden, is to indicate as  best we can, the origin of this particular map.  And  at page 139, Mr. Shotridge who is a Tlinget Indian who  made a visit to the Skeena villages in 1918, refers to  Kitwancool and states at the bottom of the page:  "The indifference of this community toward the  immediate change of primitive habits for the  modern ways which are so prominent among the coast  tribes, may have been occasioned, according to the  general feeling, by an agitation with regard to  title to lands of the province.  Some of the older  men talked over this land question to me and on  one occasion one of the leaders showed me a map,  cleverly drawn with pen and black ink on a sheet  of wrapping paper, indicating the tract of land  which the chief claimed had been theirs from time  immemorial.  He stated that his ancestors had  fought hard to retain this possession, and that 5990  S. Marsden (for Plaintiffs)  Cross-exam by Mr. Goldie  1 every member of the group is taught at childhood  2 to hold on to it.  I could not obtain the drawing  3 which I thought would offer a good sample of an  4 Indian idea of map making but I photographed it."  5  6 The whole point of this, My Lord, is that so far  7 as Mr. Shotridge was concerned, that was -- he was  8 told that was a map of the ancestral territory of the  9 Kitwancool.  And my question to Mr. Marsden is so far  10 as you know, Mr. Marsden, did Sam Douse's map indicate  11 the whole of the Kitwancool territory?  12 MR. GRANT:  Well with respect, My Lord, he hadn't seen the map  13 before, he said he hasn't seen it, and the statement  14 is, "the tract of land which the chief claimed had  15 been theirs from time immemorial."  Was that the  16 Kitwancool or was that Samuel Douse's house?  Who  17 knows?  And the witness has looked at the photograph  18 and can't recognize the places on the photograph of  19 the map.  20 THE COURT:  He said he thought that was Sam Douse's map, isn't  21 that what he said?  22 MR. GRANT:  He said he thought it was Sam Douse's map, but when  23 he looks at it he can't recognize anything on the map.  24 MR. GOLDIE:  No, I beg your pardon, he said he could not -- he  25 said there was writing but it was too small.  And --  26 MR. GRANT:  Well maybe if he can recognize something other than  27 the writing.  But he has said --  28 THE COURT:  Well I think it's — I think it's proper  29 cross-examination, Mr. Grant.  I just don't think that  30 I can stop Mr. Goldie.  31 MR. GRANT:  Well, I would just ask if what has just been read to  32 the court could be translated to the witness so that  33 he knows.  34 THE COURT:  I'm not sure it should be, Mr. Grant, it's for  35 cross-examination.  36 MR. GRANT:  All I'm saying -- yes, but in the normal course, in  37 the normal course the witness is sitting here and he  38 would hear and understand what is being said.  39 THE COURT:  With respect, he should have heard what is being  40 said.  This is cross-examination.  41 MR. GRANT:  He heard what was said, whether he understands what  42 was said is a different question  43 THE COURT:  I think the witness was completely alive to what's  44 happening and I don't think there is any risk of the  45 witness' understanding, and if there is I haven't seen  46 any sign of it up to now.  The witness said he thinks  47 this is Sam Douse's map, I think he can then be asked 5991  S. Marsden (for Plaintiffs)  Cross-exam by Mr. Goldie  1 about it.  2 MR. GOLDIE:  3 Q   Mr. Marsden, do you understand Sam Douse's map to show  4 the Kitwancool territories as they were in 1918?  5 A   I did not see this map.  6 Q   Yes.  What do you understand --  7 MR. GRANT:  Let him answer.  He started -- the witness was  8 saying something just before.  9 MR. GOLDIE:  My question is, what do you understand --  10 MR. GRANT:  Well, My Lord, the witness was in the middle of  11 saying something further.  Could you let him finish.  12 MR. GOLDIE:  Excuse me, he had finished answering my question.  13 THE COURT:  Let's start over again.  Start over again, please,  14 Mr. Goldie.  15 MR. GOLDIE:  16 Q   Mr. Marsden, the question I asked you was do you  17 understand Sam Douse's map to show the territories of  18 the Kitwancool, and you answered, "I have not seen --  19 or I had not seen Mr. Douse's map."  Am I correct in  20 that?  21 A   I did not see this map.  And when I did not see this  22 map, I cannot answer your questions.  23 Q   All right.  Do you —  24 A  Well, before I came here we had a meeting with the  25 Kitwancool chiefs, and the meeting was that if I went  26 to court I was to talk about the Gitksan law, and we  27 made an agreement.  The Kitwancool and the chiefs let  2 8 me come here and they did not want me to mention the  29 Kitwancool territories, and this is the reason why I  30 am here, to talk about the laws.  31 Q   Well, Mr. Grant asked you about the Kitwancool  32 territories, why didn't you tell the judge at that  33 time that you did not want to talk about them?  34 A   This is the reason:  I could talk about my own  35 territory and when I mention my territory this is  36 where the basis, the foundation of my strength comes  37 from.  So in order to show the court that I do have  38 strength with the other Gitksan people, with the  39 territories, I have to describe my land, my territory  40 where my power is and my authority is.  41 MR. GOLDIE:  Good.  Well we'll talk a little more about your  42 territories then.  43 My Lord, I would like to tender as an exhibit the  44 extracts from The Museum Journal under tab 1 and 2 and  45 the photograph under tab 3.  And I'm tendering the  46 magazine extracts not for the truth of the matters  47 stated therein, but as part of the context of the 5992  S. Marsden (for Plaintiffs)  Cross-exam by Mr. Goldie  1  2  3  4  5  MR.  GRANT:  6  7  8  9  10  11  MR.  GOLDIE  12  13  14  15  16  THE  COURT:  17  MR.  GOLDIE  18  THE  COURT:  19  MR.  GOLDIE  20  21  MR.  GRANT:  22  MR.  GOLDIE  23  24  MR.  GRANT:  25  26  THE  COURT:  27  MR.  GRANT:  28  THE  COURT:  29  30  MR.  GOLDIE  31  32  33  34  35  36  37  38  39  THE  COURT:  40  41  42  43  44  45  46  47  MR.  GOLDIE  photograph which the witness has identified as Sam  Douse's map, or his believe that it is Sam Douse's  map, and I will be tendering the photograph itself as  a separate exhibit.  My Lord, I just wonder, as I haven't had a chance to  read this article at all, I wonder if my friend could  inform the court and myself if the reference he made  on page 139 and 140, if that's the only reference in  the article to the map, or if there are other  references within the context of the article?  :  As far as I'm aware that's the only reference to  the map.  And the only other connection between the  article and Exhibit 439 is a photograph that is in 439  which is also taken by Mr. Shotridge at page 19, My  Lord.  Page 19 of tab 1?  :  19 of Exhibit 439.  Oh, yes  :  And that photograph is found following page 131  under tab 2 of the document book.  My Lord, I just wonder if --  :  But as far as I'm aware that's the only other  connection between that and 439.  My Lord, I would just like an opportunity to look at  the article --  Yes, all right.  -- before I take a position.  I may not oppose it.  All right.  Well, I think we will -- what are you  tendering now, Mr. Goldie?  :  Well, I'm tendering the -- what is under tab 1,  because that identifies Mr. Shotridge and it's just --  it is just the beginning of his series of articles.  Then under tab 2, I am tendering pages 117 to 148,  that contains the portion of his article which deals  with the Skeena.  I am tendering of that, only pages  139 to 140 for the truth of the statements therein  contained, and that is, so far as I am aware, refers  to the photograph alone.  All right.  Well to keep things in sequence, I'm  going to -- I'm not going to have them marked but I'm  going to reserve numbers 450 and 451, and you can  speak to the matter again, Mr. Grant, when you get a  chance to look at the documents.  It doesn't seem to  me to be necessary to have two different exhibit  numbers for pages 139 to 140 as well as 117 to 148;  the greater includes the lesser, I think.  :  No.  It's the -- the purpose for which it is 5993  S. Marsden (for Plaintiffs)  Cross-exam by Mr. Goldie  1 tendered will be stated in the transcript.  2 THE COURT:  All right.  Well I'll reserve those two numbers and  3 you may speak to it again whenever it is convenient,  4 Mr. Grant.  5 MR. GOLDIE:  To complete that package is the photograph which is  6 under tab 3, but the original photograph in the sense  7 of being a photograph of a photograph, I am tendering  8 separately.  9 THE COURT:  Yes, all right.  Any problem with that, Mr. Grant?  10 MR. GRANT:  I'm not — no.  Given the linkage I am not  11 concerned.  12 THE COURT:  That can be Exhibit 452.  It seems to me that it's  13 admissible as explanatory of the photograph which is  14 an exhibit, it's a better copy of the photograph of  15 Exhibit 439 anyway.  16 MR. GRANT:  Yes, I agree.  17 THE COURT:  So that will be Exhibit 452.  18 THE REGISTRAR:  Original?  19 THE COURT:  Yes.  20 MR. GOLDIE:  Yes.  21 THE REGISTRAR:  Exhibit 452.  22  23 (EXHIBIT 452 - Tab 3 of Blue Book, Photograph Copy of  24 Map from University of Pennsylvania)  25  26 MR. GOLDIE:  27 Q   Mr. Marsden, you explained to Mr. Grant how the  28 territory around Meziadin Lake was acquired in two  29 wars with the Stikine people.  Do you remember that?  30 A   Yes.  31 Q   Before those wars, that area belonged to the Stikine  32 people; is that correct?  33 A   Yes.  34 Q   And they are not Gitksan?  35 A   No.  36 Q   How long ago did those wars take place?  37 A   It's clear to me that it's -- it's recent, because  38 what they used, this was -- they used guns and the  39 guns -- usually the Hudson's Bay Company was the  40 first -- the first company that brought guns to the  41 territories and these people had guns.  42 Q   So it was —  43 A  And it was -- it's clear to me that it is just been  44 recently.  45 Q   Yeah.  Recently meaning any time since the Hudson's  46 Bay came into the area?  47 A   Yes.  Yes, this is -- they were the ones that brought 5994  S. Marsden (for Plaintiffs)  Cross-exam by Mr. Goldie  1 the guns to the Stikine territory, and this is how  2 come the Stikines used these guns.  3 Q   Um-hmm.  Before the Kitwancool acquired the Meziadin  4 Lake territory by war, how far north did the  5 Kitwancool territories extend?  6 A   It went as far as my territory and I am not too sure  7 about Gwashlam's territory.  8 Q   Well, Gwashlam's territory is further -- is beyond Mr.  9 Marsden's territory?  10 A   Xsi masxwit.  11 Q   Pardon me?  12 A   Xsi masxwit is the name of Gwashlam's territory.  13 Q   Right.  And that is the territory around Meziadin  14 Lake?  15 A   Yes.  16 Q   Yes.  What is the boundary between your territory and  17 Gwashlam's?  18 A   Gwashlam's territory is on the other side of the Nass  19 River where Xsi masxwit goes into the Nass River.  20 Mine is on this side of the Nass River from  21 Gwashlam's.  22 THE COURT:  So the Nass is the boundary, is it?  23 THE WITNESS:  Yes.  24 MR. GOLDIE:  Um-hmm.  All right, thank you.  25 THE COURT:  Could we interrupt you for a moment, please, Mr.  26 Goldie, to speak to the list.  27  28 (OTHER MATTERS SPOKEN TO)  29  30 THE COURT:  Mr. Goldie.  31 THE REGISTRAR:  Recalling Solomon Marsden to the stand.  32 MR. GOLDIE:  33 Q   Mr. Marsden, I believe you were present at a feast or  34 meeting with the Nisga'a in October 27th, 1984, at  35 which there were a large number of Gitksan and a large  36 number of Nisga'a and the feast was held to resolve  37 the overlap problem.  Do you remember that?  38 THE COURT:  Where was the meeting, Mr. Goldie?  39 MR. GOLDIE:  I think the meeting was at Canyon City.  40 THE WITNESS:  Canyon City, yup.  41 MR. GOLDIE:  42 Q   Canyon City?  43 THE WITNESS:  Um-hmm.  44 Q   And you were there?  45 A   Um-hmm, yes.  46 Q   Now before this, the Kitwancool and the -- and the  47 tribal council had been working on the -- on the 5995  S. Marsden (for Plaintiffs)  Cross-exam by Mr. Goldie  1 Nisga'a -- working together on the Nisga'a overlap; is  2 that correct,  3 THE WITNESS:  Um-hmm.  4 Q   Under tab 4 is a letter dated March 30th, 1983, from  5 Mr. Sterrit.  You know Mr. Neil Sterrit Jr., do you?  6 THE WITNESS:  Yes.  7 Q   And he was the president of the Gitksan-Wet'suwet'en  8 Tribal Council?  9 THE WITNESS:  Yes.  10 Q   And on March 30th, 1983, he wrote to Mr. Peter  11 Williams, President of Kitwancool, and he said --  12 MR. GRANT:  Could the interpreter have it, the exhibit.  13 MR. GOLDIE:  Yes, I'll put this in front of her.  14 THE REGISTRAR:  I'll give her this one, Mr. Goldie.  15 MR. GOLDIE:  16 Q   All right, thank you.  17 He said in the first paragraph, and I'll ask Mrs.  18 Sampson to translate this:  19  20 "As you will recall, at a meeting in Gitwangak on  21 January 18, 1983, the high chiefs asked the  22 researchers in the Land Claims Office to put  23 together supporting evidence for the Gitksan  24 claim."  25  26 Could you read that, please?  27 A   Yes, I know that.  28 Q   Yes.  And Mr. -- the high chiefs instructed the land  29 researchers to put together maps and a tape recording  30 and photographs.  Do you recall that?  31 A   Yes.  32 Q   And Mr. Sterrit said, "That to do this we must meet  33 with the Kitwancool high chiefs."  Was there such a  34 meeting?  35 A   I forgot whether they did this or not.  36 Q   All right.  But you -- were you aware that Mr. Sterrit  37 wrote this letter to Mr. Williams?  38 A   Yes, I know.  39 MR. GOLDIE:  Yeah, all right.  I would ask that that be marked,  4 0 My Lord.  41 THE COURT:  Any objection?  42 MR. GRANT:  Well in light of the fact that Mr. Sterrit —  43 ultimately it will come in, so.  44 THE COURT:  All right, thank you.  453.  45 THE REGISTRAR:  453.  46 MR. GOLDIE:  Thank you.  47 5996  S. Marsden (for Plaintiffs)  Cross-exam by Mr. Goldie  1 (EXHIBIT 453 - Tab 4 of Blue Book, Letter dd. March  2 30, 1983, from Neil Sterrit to Peter Williams)  3  4 MR. GOLDIE:  5 Q   Now I want to go to the meeting at Canyon City which  6 occurred on October 27th, 1984, and this was the  7 meeting at which the Nisga'a told their adaawk.  8 A   Their adaawk was about a person known as Txemsim and  9 this is what they call their adaawk.  It is a common  10 story amongst the -- all the people and they are --  11 they were trying to bring this up as an adaawk and say  12 that the, the waters along the Nass -- or the land  13 along the Nass and the waters that run into the Nass  14 is all theirs, and they tried to connect it with the  15 story of Txemsim.  And this is a common story among  16 the people.  17 Q   The Nisga'a people?  18 A   The Gitksan people and Txemsim know it's a common  19 story and it's not an adaawk.  They did not -- they  20 did not tell any adaawks of their land, how they  21 acquired this land.  They had no adaawk connecting to  22 any of their lands that they were claiming.  23 Q   All right, thank you.  24 THE COURT:  Could I have the spelling of that name, please.  25 THE TRANSLATOR:  Txemsim?  2 6 THE COURT:  Yes.  27 THE TRANSLATOR: T —  2 8 THE COURT: "T"?  29 THE TRANSLATOR: T-X underlined E-M-S-I-M.  3 0 THE COURT:  Thank you.  31 MR. GOLDIE:  32 Q   Now Mr. Neil Sterrit Jr. was at that meeting?  33 A   Yes.  34 Q   And he made notes of that meeting, or are you aware of  35 that?  36 A   I think he wrote them down.  I'm not too sure.  37 Q   All right.  I'm going to ask you, Mrs. Sampson, to  38 turn to tab 5 of the document book.  39 THE COURT:  Before you do that, Mr. Goldie, can you tell me just  40 in a word, the Calder case refers to a claim of the  41 Nisga'a, and in that case has been about a thousand  42 square miles.  Can you tell me approximately where  43 that thousand square miles was?  44 MR. GOLDIE:  Yes.  Very roughly, to the north-west of the  45 Gitksan and Kitwancool.  46 THE COURT:  North-west?  47 MR. GOLDIE:  Yes.  Or west by north. 5997  S. Marsden (for Plaintiffs)  Cross-exam by Mr. Goldie  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  MR.  THE  MR.  THE  MR.  THE  MR.  THE  MR.  THE  MR.  COURT:  Well looking at the map that we've been looking at  more than any other map insofar as the Kitwancool are  concerned, which is -- which is Exhibit 383, it's tab  1 in the white book.  GOLDIE:  Yes.  That's —  COURT:  That's the Nass coming up from the bottom left  corner is it not?  GOLDIE:  Yes, that's correct.  COURT:  Yes, all right.  GOLDIE:  And the -- the overlap includes virtually  everything on the west bank of the Nass including the  Meziadin.  COURT:  I see, all right.  GOLDIE:  And the -- so far as it affects the Gitksan, it  includes the Bowser Lake area.  COURT:  All right.  And the thousand square miles they talk  about in the Calder case, is that the area they are  talking about?  GOLDIE:  I believe so.  The origin of the Nisga'a claim as I  understand it, is an area that was shown on a map  attached to a 1913 petition, and I don't have a map  here.  There was a reference made to it in Mr.  Sterrit's examination for discovery, and there is a  federal government publication which shows the  overlap, and Mr. Macaulay may be able to be more  precise than I am.  I would have thought that that little area -- when I  say little area, the area you talk about there, the  west bank of the Nass, would be roughly in excess of a  thousand miles if it proceeds any direction to the  west.  Well that's right, My Lord.  There is a couple of  things there that are being crossed.  There is, of  course, the Nisga'a claim to the federal government  which is one item, there is a Nisga'a claim in the  Calder case which, my recollection, and I think that  it is appropriate to have the description from Calder  if you are --  Sometime I'm sure we will get to that.  We'll get to that.  But my recollection is that it  does not include a large part of what is on the map  that you've referred to.  In fact, there was a  deletion and a reduction of the territory that the  Nisga'a claimed in the Calder case from what my friend  has referred to as the 1913 petition.  At the left boarder of this map, Exhibit 383, we  must -- that must be 75 to a hundred miles to the  THE COURT  MR. GRANT  COURT  GRANT  THE COURT 599?  S. Marsden (for Plaintiffs)  Cross-exam by Mr. Goldie  1 coast, not --  2 MR. GOLDIE:  Oh, well the Portland Canal comes up quite sharply  3 in the upper left-hand side there.  4 THE COURT:  I see, all right.  Well, that's possible.  Is there  5 a -- does their claim stop at the head lands of the  6 Portland Canal.  7 MR. GOLDIE:  I have here the 1913 petition.  8 THE COURT:  Yes.  9 MR. GRANT:  But as I say, that was -- the claim in Calder was  10 different than in the petition itself.  I think there  11 may be evidence of that difference.  12 MR. GOLDIE:  Oh, I'm sure the boundaries have changed.  13 THE COURT:  Yes.  14 MR. GOLDIE:  But I'll read to Your Lordship the 1913 petition  15 description, and certain -- certain topographic  16 features are going to come to Your Lordship's  17 attention.  18  19 "Commencing at a stone situate on the south shore  20 of Kinnamox or Quinamass Bay and marking the  21 boundary line between the territory of the said  22 Nishga Nation and Tribe and that of the Tsimpshean  23 Nation or Tribe of Indians, running thence  24 easterly along said boundary line to the height of  25 land lying between the Nass River and the Skeena  2 6 River —"  27  2 8 THE COURT:  I see.  29 MR. GOLDIE:  30 "-- thence in a line following the height of land  31 surrounding the valley of the Nass River and its  32 tributaries to and including the height of land  33 surrounding the north-west end of Mitseah or  34 Meziadin Lake, thence in a straight line to the  35 northerly end of Portland Canal, thence southerly  36 along the international boundary to the centre  37 line of the passage between Pearse Island and  38 Wales Island, thence south easterly along said  39 centre line to the centre line of Portland Inlet,  40 thence north-easterly along said centre line to  41 the point at which the same is intersected by the  42 centre line of Kinnamox or Quinamass Bay."  43  44 And so on.  That gives Your Lordship --  45 THE COURT:  Yes, all right.  One other thing, then, in the  46 centre of this Exhibit 383 there are what I take by  47 black outlining to be two small lakes. 5999  S. Marsden (for Plaintiffs)  Cross-exam by Mr. Goldie  1 MR. GOLDIE:  Yes.  2 THE COURT:  Would that at that latitude be the height of land  3 between the Skeena and the Nass?  4 MR. GOLDIE:  I -- my guess is it's very close to it, that there  5 is a drainage.  6 THE COURT:  The Kispiox looks to be a river — looks to be to  7 the east running down to the Skeena.  8 MR. GOLDIE:  Yes.  9 THE COURT:  And there is a small lake — river from that  10 westerly lake running down to the Nass.  It seems to  11 me that would have to be the height of land between.  12 MR. GOLDIE:  Yes.  13 THE COURT:  All right, thank you.  14 MR. GOLDIE:  15 Q   Would you open the blue book under tab 5, please, to  16 the first page of Mr. Sterrit's notes, yes.  Now, what  17 I'm going to do is make a brief reference to the --  18 what each speaker said, and ask Mr. Marsden if he  19 recalls that after the opening ceremony, Mr. Jimmy  20 Gosnell spoke for the Nisga'a?  21 A   Yes.  22 Q   And he said amongst other things, "The overlap is not  23 serious"?  24 A   Yes.  25 Q   And he said, "Gitksan live in all our villages and the  26 Nisga'a live in Gitksan villages"?  27 A   Yes.  I guess they are referring to the Gitksans that  2 8 have moved with them, and what they think is that they  29 would -- just because there were some Gitksans living  30 with them that they -- they are going to claim the  31 Gitksan's territory, some of the territories.  But  32 this is not so with the Gitksan law.  Once when a  33 person leaves the village, he could not take the --  34 anything from the house, and also, he would not take  35 the pole so he would not take the territory.  When he  36 leaves, he leaves all this behind.  When he leaves, he  37 moves to another village.  And because where the  38 totem-pole is is where the power of the chief lies,  39 and —  40 Q   Yes?  41 A   -- and all the totem-poles are still in Gitsequkla and  42 the house are still in Gitsequkla and they could not  43 take these.  44 Q   But I -- Mr. Marsden, you told us in response to  45 questions from Mr. Grant that those people who moved  46 away were still Gitksan?  47 A   This is the case with some of the people.  If you have 6000  S. Marsden (for Plaintiffs)  Cross-exam by Mr. Goldie  1 deserted your village, you leave it, you don't come  2 back and you don't own anything there.  But with some  3 of the people it's different, they keep coming back,  4 many coming back to attend the feast, to do their work  5 in the village, and they don't forget which house they  6 belong to.  7 Q   Um-hmm.  So the Gitksan law is that if somebody is  8 living with the Nisga'a but returns to feasts in the  9 Gitksan villages, he or she remains Gitksan?  10 A   Yes.  11 Q   And the Nisga'a who live in the Gitksan villages, do  12 they become Gitksan or do they remain Nisga'a?  13 A   They do the same thing too, they return home when  14 there is a big feast put on by their house.  15 Q   But if they don't return home, do they become Gitksan?  16 A  We could not say this, we could not -- once they  17 belong to a house they are in a house.  18 Q   Yes.  Would you turn over to page 2, please, Mrs.  19 Sampson.  Do you remember Mr. Charlie Swanson  20 speaking?  21 A   No.  22 Q   Do you remember a Nisga'a speaker saying, "We are all  23 related, I have two sisters in Gitanmaaxs"?  24 A   No, I didn't hear that.  25 Q   Don't remember that, all right.  And there was a  26 gift -- there were gifts given at the feast?  27 A   They gave money to Neil Sterrit for the expenses.  28 Q   And then, Mrs. Sampson, if you turn to page 4.  Do you  29 remember Mr. Chester Moore telling the story of  30 Meziadin, Nisga'a story of Meziadin?  31 A   No, I didn't hear.  They didn't tell any adaawks and  32 they wouldn't let Kitwancool people listen to their  33 adaawks.  34 Q   Do you not remember Nisga'a people telling a story of  35 why the Thaltan gave Meziadin to the Nisga'a?  36 A   No.  37 Q   No, all right.  And then was -- did Mr. Richard Guno,  38 Chief of Nisga'a, speak?  Can you state his chief's  39 name.  Is that -- is that a Nisga'a chief?  40 A   They just put that name on, they just recently put the  41 name on Richard Guno, K'amxsiwaa.  That's -- but he  42 knows he is from the house of Guxsan.  43 Q   Well, was he -- was he Nisga'a?  44 A   He was brought up with the Nisga'as.  His father is a  45 Nisga'a but his mother is a Gitksan.  46 Q   And that is a Gitksan name, a chief name in the  47 Gitksan? 6001  S. Marsden (for Plaintiffs)  Cross-exam by Mr. Goldie  1  A  2  3  Q  4  5  A  6  Q  7  A  8  9  Q  10  A  11  Q  12  MR. GRANT  13  14  THE INTER  15  MR. GOLDI  16  Q  17  A  18  19  Q  20  21  A  22  Q  23  A  24  Q  25  A  26  27  28  Q  29  30  31  A  32  33  34  35  36  37  Q  38  39  A  40  41  42  Q  43  A  44  45  Q  46  47  If -- the name is -- belongs to the Nisga'a people.  He was adopted into the house.  All right.  And did he not tell a story about the  territory around the Meziadin?  I don't remember.  Do you remember him speaking about Michael Bright?  I think I know the situation here.  That Michael is  from Lax Gibuu and Richard is Gisk'aast.  Fireweed?  Fireweed.  Yeah.  Well, Michael Bright —  :  Was the witness explaining -- in the middle of an  explanation I think?  URETER:  Yes.  All right, let him finish.  Richard could not say anything about what Michael  Bright is doing.  Michael Bright was from Kitwancool and went to live on  the coast?  Yes.  He is from the house of Gwashlam.  Yes.  In?  In Kitwancool.  And did he return to Kitwancool to attend feasts?  No.  And these are the people that want to claim the  territory of the Kitwancool.  They put it in with the  Nisga'a claim.  And Mr. Richard Guno was saying that he had rights  because he was beside Mr. Michael Bright; was that  what Mr. Guno was saying?  Even if they say this they can't do nothing, because  Richard is from the house in Gitsequkla and Michael is  from Kitwancool, and they could not stand side-by-side  because one is from Gitsequkla and one is from  Kitwancool, and they don't have the power to make any  decisions about anything.  And as far as Mr. Marsden is concerned, they have no  rights in Kitwancool territory?  They have left the country of Kitwancool and they  cannot return back and speak to anything that is  happening.  Thank you.  But they were speaking at this feast?  Yes, they did speak here, but we -- we did not  recognize them.  Yes.  And there was a speaker from Nisga'a who was  from the house of Duukw.  Look at page 13, please, Mr.  Marsden, D-U-U-K-W.  Mr. Marsden, is that a Nisga'a 6002  S. Marsden (for Plaintiffs)  Cross-exam by Mr. Goldie  house?  A   I never heard this name before and I don't know it.  Q   You don't recognize it, all right.  Do you recall a  speaker saying that his uncle told him that it was a  two-day journey to his territory from Git lax damix?  That name is on page 13 on the right-hand side, second  paragraph.  GRANT:  My Lord, my friend's question as I understood it was  that -- he asked if the speaker said it was a two-day  journey to his uncle's territory from Git lax damix,  and the notation doesn't refer to where it is, the  two-day journey to that is to his uncle's territory.  It just says there was a two-day journey from Git lax  damix.  GOLDIE:  Q   The question I asked was do you recall the speaker  saying that?  A   This may be right, but who said this?  Q   Well, the speaker is identified by Mr. Sterrit merely  as Chris, apparently from the house of Duukw?  A   Yes.  Somebody said this, but I didn't really know who  was saying this.  Q   But it was a Nisga'a?  A   Yes.  COURT:  Well, doesn't it appear from the top of the right-  hand column, page 13, that he was talking about a  location that may be abbreviated but it starts --  looks like G-I?  GOLDIE:  G-I-H-L, D-I-N.  COURT:  Yes.  GOLDIE:  Could you pronounce that word for Mr. Marsden and  ask him if he recognizes it.  Gihl d'in?  INTERPRETER:  Where is that at?  GOLDIE:  Page 13, the right-hand column, line three.  INTERPRETER:  Gihl d'in.  GOLDIE:  Which is it?  TRANSLATOR:  Gihl d'in.  COURT:  How do you spell that, please?  TRANSLATOR:  G-I-H-L.  COURT:  G-I-H-L.  TRANSLATOR:  Space D stop I-N.  COURT:  Yes.  GOLDIE:  Q   All right.  Does Mr. Marsden identify that name and if  so can he tell us where it is?  A   I know Gihl d'in.  This is the territory of  Wutaxhayetsxw.  1  2  3  4  5  6  7  8  MR.  9  10  11  12  13  14  15  MR.  16  17  18  19  20  21  22  23  24  25  THE  26  27  28  29  MR.  30  THE  31  MR.  32  33  THE  34  MR.  35  THE  36  MR.  37  THE  38  THE  39  THE  40  THE  41  THE  42  THE  43  MR.  44  45  46  47 6003  S. Marsden (for Plaintiffs)  Cross-exam by Mr. Goldie  1 Q   Of Kitwancool?  2 A   Yes.  3 Q   What —  4 A   It is -- it is close to the boundary of the Nisga'a  5 and the Kitwancool people.  6 Q   What clan is that chief?  7 A   Frog.  8 Q   Mr. Marsden's clan, yes.  9 THE COURT:  The third line from the bottom suggested it might be  10 a river  11 MR. GOLDIE:  12 Q   The source, yes.  What is Gihl d'in?  13 A   It's the name of the territory and also the water.  14 Q   Is it a river or a creek or a lake?  15 A   Yes, it's a river.  16 Q   Is there an English name for it?  17 THE WITNESS:  Kiteen.  18 A   Kiteen.  19 Q   Kiteen, thank you.  20 A   The white people couldn't say Gihl d'in so they say  21 Kiteen.  22 Q   Very, very wise.  So this Nisga'a was stating that his  23 house owned a territory on the Kiteen which is owned  24 by a member of your clan?  25 A   It's Kitwancool's.  The Nisga'as got no business with  26 this.  27 Q   All right, thank you.  Did the -- did the Nisga'a  28 speak in their own tongue?  29 A   Yes, they use it.  30 Q   Were -- was that translated?  31 MR. GRANT:  You are referring to the meeting?  32 MR. GOLDIE:  33 Q   Yes.  34 A   Yes, they did.  They used these speakers and  35 through -- they would talk into the speakers and it go  36 through the earphones of the translator and she would  37 speak through the -- to the people, translate to the  38 people what is being said.  39 Q   And when the Kitwancool and Gitksan spoke, they spoke  40 in their own tongue?  41 A   Yes.  They did use their own language but we  42 understand what the Nisga'a was saying, and they  43 understand what we were saying.  44 Q   The two languages are quite similar, are they?  45 THE WITNESS:  Um-hmm.  46 Q   Yeah.  Now, was the last Nisga'a speaker Mr. Frank  47 Calder? 6004  S. Marsden (for Plaintiffs)  Cross-exam by Mr. Goldie  1 A   Yes, I remember what was going on at that meeting, but  2 the -- we are talking about territories now and I am  3 here for -- to explain the laws and we are talking  4 about territories.  5 Q   Well, I want to come to what Mr. -- what the  6 Kitwancool people said at this meeting, and I want to  7 have Mr. —  8 A   I am getting tired and I do not want to talk about the  9 territories, and I think I am not going to answer any  10 more if it's being asked of me.  11 MR. GOLDIE:  All right.  Well, suppose we have an adjournment?  12 THE COURT:  Yes, all right.  13 THE REGISTRAR:  Order in court.  Court will recess.  14  15 (PROCEEDINGS ADJOURNED AT 10:55 a.m.)  16  17 I hereby certify the foregoing to be  18 a true and accurate transcript of the  19 proceedings herein transcribed to the  20 best of my skill and ability.  21  22  23  24  2 5    26 Toni Kerekes,  27 O.R., R.P.R.  28 United Reporting Service Ltd.  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 (PROCEEDINGS RECONVENED PURSUANT TO RECESS) 6005  Submission by Mr. Goldie  Submission by Mr. Grant  1  2 THE REGISTRAR: Order in court.  Ready to proceed, My Lord.  3 THE COURT:  Goldie.  4 MR. GOLDIE:  My Lord, I wonder if I might explain to the witness  5 that I am asking these questions only because of  6 evidence that was given in response to Mr. Grant's  7 questions.  I don't want to leave the impression with  8 the witness that I'm doing something that I shouldn't  9 be doing.  10 THE COURT:  Well, I don't know.  Is it necessary, Mr. Grant?  11 MR. GRANT:  Well, if Mr. Goldie wants to say that, I have no  12 problem.  My problem, and I want to advise the court  13 and Mr. Goldie that, with respect to questioning this  14 witness relating to Kitwancool territories that are  15 not subject to this action at all and are not -- do  16 not impact in the sense that they're part of some  17 overlap with this territory, other than the witness'  18 own territory which he described, and I would submit  19 that that is not relevant.  If there's questions of  20 Nisga'a claims that impact on the clan territory  21 subject of this action or of Kitwancool claims that  22 impact on the subject matter of this action, I -- of  23 course I'm not saying that sort of questioning is not  24 relevant, but to go on and on about the Kitwancool and  25 the Nisga'a's problems which are both outside this  26 claim territory and have no bearing on the issues  27 before the court I submit is not relevant, and I --  2 8 THE COURT:  Well, I —  29 MR. GRANT:  I say that in advance because I understand my friend  30 may be asking more questions about it, although  31 there's things he may be asking about relating to  32 other statements that are in these notes.  I've just  33 had a chance to review these notes again now over the  34 break, so I say that I would object to relevance on  35 those areas.  36 THE COURT:  Well, I've noticed that on television they seem to  37 be able to divide things up and are able to speak with  38 great confidence as to precisely what's relevant and  39 what isn't, but I must say I'm completely at sea as to  40 what possibly can be relevant in most of this  41 evidence, but it's here and I have to deal with it.  I  42 don't think the witness was qualified as an expert in  43 Gitksan law.  I don't think that much of his evidence,  44 strictly speaking, may have been admissible at all.  45 It was heard without objection.  There's certainly  46 areas where the overlap is involved and there are  47 areas which may reflect upon the overlap, and I'm not 6006  Submission by Mr. Grant  Ruling by the Court  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR. GRANT  THE  MR.  THE  MR.  COURT  GRANT  COURT  GRANT  THE COURT  MR.  THE  MR.  THE  GRANT  COURT  GRANT  COURT  able to sort out at this stage, and I'm not sure I'll  ever be able to sort out even at the end of the trial,  what is strictly relevant and what isn't, but I can't  at this moment give effect to your submission Mr.  Grant that I should try to draw a clean line between  what relates strictly to overlap and what doesn't.  I  don't know whether it relates to overlap or not.  Well, there is a clean line as to what relates to  overlap and of course Mr. Goldie has raised it, and  that is that there's the Nisga'a -- the defendants  state that the Nisga'a have some -- are making some  claims within this area that's the subject of this  claim, and similarily -- well, I shouldn't say, but I  understand from some of Mr. Goldie's questioning that  he may be trying to determine or questioning relating  to Kitwancool in the same situation.  What I'm saying  is, My Lord, is that really all the witness is trying  to say is that the Kitwancool chiefs are not in this  court action, their territory is not a subject matter  before the court, and that's where I think the  confusion lies.  Oh, there's much more confusion than that Mr. Grant.  Well, I think, yes, I think --  A good deal more.  -- there is another confusion which is that he was  allowed by certain persons to agree to be a witness,  but they asked me --  Well, it's counsel's responsibility that he's a  witness, no one else's.  It's only counsel's  responsibility that he's a witness.  I can't look  beyond that.  I agree.  But I'm —  All I'm saying --  I'm not going to rule that something cannot be  relevant at this stage in the examination of this  witness.  He's here.  He's in the box.  If we were in  the feast hall we'd play according to his rules, in  this courtroom we've got to play according to what I  conceive the rules likely are.  And I tell you that I  cannot sort out at this stage what is relevant and  what is so irrelevant that it should not be admitted.  If it relates to territories, that's what this case is  all about, if he's a Gitksan.  I'm not going to try  and weigh these matters on very fine scales.  I think  we have to -- we're into this, and I think we have to  endure it and I think we should get on with it.  Go 6007  S. Marsden (for Plaintiffs)  Cross-exam by Mr. Goldie  1 ahead, Mr. Goldie, you make whatever statements you  2 want to the witness.  I don't think it's necessary,  3 but —  4  5 CROSS-EXAMINATION BY MR. GOLDIE CONT.:  6 Q   All right.  I do want to point out to Your Lordship  7 that there were a couple of what might best be termed  8 mild objections taken at the outset to some of this  9 evidence, and Your Lordship had my friend's assurance  10 that it was relevant.  Now, when I hear a question as  11 was put to the witness, "Now, in your lifetime have  12 Nisga'a people used the resources of your territory to  13 your knowledge?", what am I to make of that?  And what  14 I'm making of it is the relationship between the two  15 people which appears now to have been put in issue.  16 Maybe in the fullness of time it will appear to  17 dwindle into nothingness, or as the astronomers if not  18 the astrologers would say, a black hole.  19 Now, Mr. Marsden, I don't want to tire you and I'm  20 sure you will tell me when you are tired, and the only  21 reason I'm asking you these questions is that they  22 appear to relate to the evidence that you gave in  23 answer to my friend Mr. Grant's questions.  Now, we  24 were talking about the Canyon City feast, and I'm  25 almost finished with that.  I want to ask you this:  26 Gwashlam spoke for the Kitwancool and that is Mr.  27 Robert Good -- no, who's Gwashlam?  2 8 A  Abel Campbell.  29 MR. GOLDIE:   Abel Campbell, yes, thank you.  30 THE COURT:  The first name?  31 MR. GOLDIE:  32 Q   A-b-e-1, My Lord.  33 Do you remember him speaking?  34 A   Yes, I remember.  35 Q   And then you followed him, did you not?  36 A   Yes.  37 MR. GOLDIE:   And you said that you were -- did you -- this is  38 at page 17 I want to read to you.  This is at the  39 right-hand column at the bottom of the page, and I  40 quote:  "I want to tell you the law of the chiefs of  41 our forefathers.  If somebody, even a high chief  42 abandons his village, a village where his..." I can't  43 make out that word, "...are, another man takes his  44 place."  45 THE COURT:  "...a village where his stories are, another man  46 takes his place."  47 MR. GOLDIE:  Stories, yes.  Do you remember saying something 600?  S. Marsden (for Plaintiffs)  Cross-exam by Mr. Goldie  1 like that in Gitksan?  2 MR. GRANT:  Madam Interpreter could take the exhibit, if she  3 wishes, to sit down while she's doing it.  4 THE INTERPRETER: How far did you read onto this one?  5 MR. GOLDIE:  Just down to the end of "another man takes his  6 place."  The top of the left-hand column on page 18.  7 THE INTERPRETER: Oh, I'm reading the wrong one.  8 MR. GOLDIE:  Let's —  9 THE INTERPRETER: Okay.  I was reading on the right-hand side,  10 like "I want to tell you the laws."  11 MR. GOLDIE:  Yes.  And then it follows up here.  12 THE INTERPRETER: Here.  I was reading this one.  13 MR. GOLDIE:  14 Q   Okay.  15 A   Yes.  16 Q   Yes.  Thank you.  And I'm not going to read everything  17 that you said, but you finished by calling upon Chief  18 Guu gwih'l gyoo, Mr. Peter Williams, that's at the  19 bottom of the right-hand side of page 18?  20 A   Yes.  21 Q   And you said "Peter, we will back you.  You will  22 conclude the ways of our forefathers."?  23 A   Yes.  24 Q   And then Mr. Williams spoke and he spoke about the  25 Royal Commission in 1915?  26 A   Yes.  27 Q   And he referred to the reason why the Meziadin Lake  28 belonged to Kitwancool because of the blood which was  29 there, the blood of the Kitwancool in the lake?  30 A   Yes.  This was the foundation for us to make it clear  31 to the Nisga'a people to see that this land was given,  32 the Meziadin area was given to us because there was  33 the blood of our people spilled there.  34 Q   Yes.  And after he had gone through this, he said, and  35 I quote:  "This is why Kitwancool owns Meziadin and  36 Bowser Lake is part of Kitwancool and Gitksan own part  37 of Bowser." That's —  38 A   Yes.  We said this and we were referring to the  39 boundary goes to Bowser Lake.  The Bowser Lake is not  40 in our territory.  41 Q   Not even part of it?  42 A   No.  43 Q   And then Mr. Williams listed the people who would lose  44 territory if the Nisga'a were right and he called it  45 aggression not overlap; isn't that right?  46 A   Yes, that's what he said.  47 Q   And he then referred to the court case and, the 6009  S. Marsden (for Plaintiffs)  Cross-exam by Mr. Goldie  1 Nisga'a court case, and said that he -- that the  2 Kitwancool did not want to hurt them while before the  3 courts.  Do you remember that?  4 A   Yes.  5 Q   And he said to the people there, "You, the Nisga'a,  6 told the courts, the Supreme Court and the Court of  7 Appeal, that no people disputed you, but here to his  8 right and left are people disputing you.  The high  9 chiefs of the Kitwancool and Skeena are disputing  10 you."  11 I'm quoting, Mrs. Sampson, from the bottom of the  12 right-hand column on page 21 to the top of page 22,  13 left-hand column.  14 A   Yes.  15 Q   And after Mr. Williams concluded, there were some  16 Gitksan -- other Gitksan witnesses and Mr. Stanley  17 Williams, Gwis Gyen, spoke did he not?  18 A   Yes.  19 Q   Now, Mr. Williams is the person that you referred to  20 yesterday as being highly respected by the chiefs of  21 the Gitksan?  22 A   Yes.  23 MR. GOLDIE:   And you were present when Mr. Stanley Williams  24 gave his evidence on commission a little while ago?  25 MR. GRANT:  That was for part of it you mean.  26 MR. GOLDIE:  27 Q   I'm just asking him.  28 Were you present when Mr. Williams gave his  29 evidence?  30 A   Yes.  31 Q   Now, is it right that Mr. Williams knows more about  32 the territories than any other chief?  33 A   They just recognize him as an expert on the  34 territories of Gitsegukla and Gitwingax.  35 Q   Just those two village territories.  With respect to  36 those two he knows more about those territories than  37 any other person -- any other chief?  38 A   The chiefs told Stanley where the territories are.  39 THE COURT:  What were the two villages?  40 MR. GOLDIE:  Gitwingax and Gitsegukla.  My Lord, I'd ask that  41 those notes which are numbered from pages 1 to 23 with  42 the title page "Notebooks of Neil Sterritt", this is  43 an extract from those notebooks which in turn are part  44 of the plaintiffs' production, document 3920, be  45 marked as the next exhibit.  46 MR. GRANT:  My Lord, I object to these going in as an exhibit  47 now.  I have not had an -- I have just received this, 6010  S. Marsden (for Plaintiffs)  Cross-exam by Mr. Goldie  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  of course, this document book this morning, and I --  of course I've seen these notebooks before.  I didn't  know if they were -- my friend hasn't entered them up  to this stage, although the notebooks haven't been  referred to, this witness of course has adopted  certain statements that have been read to him and  that's all in the evidence and that's what we have.  That evidence is established now.  My friends will  have an opportunity of course with Mr. Sterritt at  which time --  THE COURT:  Mr. Sterritt's a plaintiff isn't he?  MR. GRANT:  Mr. Sterritt is a -- he's a represented member of a  house.  THE COURT:  Yes.  Could your friend not just call upon you to  produce it and put it in as a document in handwriting  of one of the plaintiffs?  MR. GRANT:  Well, there's probably several -- since there are  several -- over several thousand plaintiffs in the  terms of the represented, he's not a named plaintiff,  but what I'm saying is that I -- I mean if this  document had -- if I'd had this last night I would  have had an opportunity to review it with Mr.  Sterritt.  I don't know if this is complete or not. I  don't know if he's --  THE COURT:  I don't think there's any problem in you having time  to look at it, subject to what Mr. Goldie says.  It  seems to me that it's probably admissible, separately  entirely from whatever the witness has said about it.  MR. GRANT:  Well, I'm saying that there may be a time that it  will be admitted.  THE COURT:  Well, to put it another way, I don't think that its  admissibility depends upon the evidence given by this  witness, but I'm sure Mr. Goldie won't object if you  want some time to look at it and consider your  position.  MR. GRANT:  Okay.  I'd ask that this not go in as an exhibit  now.  THE COURT:  We'll reserve it a number so it goes in in sequence,  but the number will be?  THE REGISTRAR: 454.  THE COURT:  454.  That's all of tab 5 wasn't it, Mr. Goldie?  MR. GOLDIE:  Yes, that's the whole of what's under tab 5.  THE COURT:  The number's been reserved.  All right.  MR. GOLDIE:  Mr. Marsden, is it not possible that this  territory, and I'm now talking about the Meziadin Lake  territory, was used by Kitwancool, Stikine, and  Nisga'a? 6011  S. Marsden (for Plaintiffs)  Cross-exam by Mr. Goldie  1 MR. GRANT:  When?  2 MR. GOLDIE:  3 Q   Any time.  All three have used the territory?  4 A   In the beginning it belonged to the Stikine people.  5 Q   Yes?  6 A   But after they had war with the Kitwancool people, it  7 was given over to the Kitwancool people by the Stikine  8 people.  9 Q   All right.  Now, you testified, and I'm referring to  10 page 5875 of Volume 92, you testified that your  11 territories are about 55 miles away from Kitwancool  12 Lake.  Do you remember that?  13 A   Yes.  14 Q   And you said that was mile 55 on the highway or the  15 road miles are 70, and you said that when you were  16 young you used horses to get supplies up there.  Do  17 you remember that?  18 A   Yes.  19 Q   And you were there when you were young from about the  20 end of October until May?  21 A   Yes.  22 Q   Now, that was to trap was it not?  23 A   Yes, trapping and also for survival to get the  24 whatever kind of meat we could get.  25 Q   Well, before you had horses you wouldn't go that far  26 away, would you, to hunt?  27 A  We never depended on the horses that much.  We could  28 go there by ourselves.  We could carry about a hundred  2 9 pound pack and go there and in the wintertime we would  30 use dog sleds.  31 Q   But when you went there in the wintertime you trapped  32 furs to trade and you hunted meat to eat; is that  33 right?  34 A   Yes, that's what we did.  35 Q   And the hunting was so that you could survive out in  36 the bush during the wintertime?  37 A   Yes.  38 Q   Now, the furs that you traded were for the white man's  39 goods such as guns?  40 A   Yes.  41 Q   And before the white man came the furs were used for  42 clothing?  43 A   Yes.  This is not the only thing we used the furs for.  44 We had trading outlets to the different nations down  45 the coast.  We would trade them with their food for  46 furs or our meat for their seafood.  47 Q   This was with the T'simxsan? 6012  S. Marsden (for Plaintiffs)  Cross-exam by Mr. Goldie  1 A   Some of them were T'simxsan.  2 Q   And long before there were white men in your -- in the  3 part of the world in which you lived, the white man's  4 goods came up from the sea by trading with the  5 T'simxsan?  6 A   Yes.  7 Q   Mr. Marsden, how long have the Kitwancool -- how long  8 have the people of the Kitwancool village been  9 concerned about land claims?  10 A   I will just tell a part of it.  I can't go into the  11 territories.  12 Q   No.  That's right.  13 A   In the beginning when there was too much people at  14 Gitangasx --  15 Q   Where?  16 A   Gitangasx.  17 Q   Could I have the spelling for that, please?  18 THE TRANSLATOR:   G-i-t-a-n-g, underlined, a-s-x underlined.  19 A   There was too many people at Gitangasx so they left  20 Gitangasx and they travelled towards where Kitwancool  21 is now.  22 Q   Yes?  23 A   The area.  And this is when they first claimed their  24 land, and this is where the land claims started when  25 they first claimed that land.  That was in the ancient  2 6 times.  27 Q   Right.  28 A   Before the flood.  2 9 Q   Now, in much more recent times the Kitwancool have  30 filed many petitions with government?  31 A   Yes.  32 Q   And they were advised -- and they believed that their  33 petitions were in the courts as early as 1908; is that  34 within your knowledge?  35 A   Peter Williams told me some of the things about the  36 land, land claims.  Maybe it is 1908.  This is when I  37 was born and I don't have any knowledge of this.  38 Q   All right.  Any knowledge you have about the time as  39 early as that you got from other people?  40 A   Yes.  41 Q   And the Kitwancool have a land researcher who's  42 looking into their claims?  43 A   Yes.  44 MR. GOLDIE:   And is the — are the sections of Exhibit 439,  45 which begin at page 33, chapter 3, headed "The  46 Establishment of Kitwancool Indian Reserves", is that  47 the work of the land researcher? 6013  Submissions by counsel  1  MR.  GRANT:  2  3  4  5  6  7  8  9  10  MR.  GOLDIE  11  12  13  14  THE  COURT:  15  16  MR.  GRANT:  17  MR.  GOLDIE  18  THE  COURT:  19  MR.  GOLDIE  20  21  22  THE  COURT:  23  MR.  GRANT:  24  THE  COURT:  25  MR.  GOLDIE  26  MR.  GRANT:  27  28  29  30  31  32  33  34  35  36  MR.  GOLDIE  37  38  39  40  41  42  43  44  45  46  47  My Lord, with respect to this, my recollection of  the ruling with respect to this was that that was not  considered relevant and the court ruled not -- that  that was not going to be part of the exhibit, "The  Establishment of the Kitwancool Reserve", and that's  why I've left -- I did not examine this witness at all  on that area, was I understood from the ruling the  court made last week with respect to Vernon Smith was  not relevant to the proceedings herein.  :  Well, that was a ruling that was made with respect  to Mr. Smith and all I'm asking him is the origin of a  section and a document, part of which is now an  exhibit.  Well, I think the only part of this that's an  exhibit is pages 1 to 12, and 14 to 20 is it not?  Yes.  :  That's presently so.  Yes.  :  But I have examined the witness with respect to a  number of other pages on that.  The photographs at  page 2 9 I've examined him on.  Who presented this document?  The provincial defendant and --  In cross-examination of Mr. Smith?  :  Yes.  That's right.  And it was ruled that the chapter 3,  "The Establishment of Kitwancool Indian Reserves" was  not relevant and for that reason I didn't broach that  subject with this witness at all. And I submit, with  respect, that the fact that it -- that was a ruling  with respect to Vernon Smith, if it's not relevant,  it's not relevant, and we can't start with a new  witness and say well, now it is relevant.  So I submit  that any questioning on chapter 3 should not be  allowed.  :  It may not have been relevant with respect to Mr.  Vernon Smith, who is a named plaintiff.  This witness  has been called by the plaintiffs presumably because  he has some information of value to their case.  I'm  entitled to explore with him his background and the  connection that he has with land claims.  Eventually  submissions are going to be made to Your Lordship  about the reliability of evidence that has been  developed, if I may use that word, in a context of  land claims.  And the Kitwancool have been active in  presenting their claims.  I have another basis for wanting it in, and that 6014  Ruling by the Court  S. Marsden (for Plaintiffs)  Cross-exam by Mr. Goldie  1 of course is the fact that the claims that are  2 advanced by the Kitwancool were joined in by other  3 members of the plaintiffs and there may come a time  4 when it becomes of importance to argue before Your  5 Lordship the delay in asserting their claims in this  6 court.  7 THE COURT: Well, I think that for the purposes of — for present  8 purposes, without admitting the document as proof of  9 the truth of anything stated in it, it is probably  10 something for the provincial defendant to establish,  11 if it can, through cross-examination of the knowledge  12 of a witness, what the source of the document is, that  13 is, who prepared it and when.  But I don't think until  14 I've heard a full argument on the matters Mr. Goldie  15 has just threatened me on that I should admit it as  16 evidence in the case except perhaps for  17 identification.  If it's shown that this witness knows  18 what the source of that is, I think that that is not  19 in any way inconsistent with what I have previously  20 ruled.  So you may proceed with that line of  21 questioning with the witness, Mr. Goldie.  22 MR. GOLDIE:  Yes.  My only purpose at the present time is to  23 establish the source of chapter 3.  2 4 THE COURT:  Yes.  25 MR. GOLDIE:  And I had suggested to you, Mr. Marsden, that it  26 was the work of your land researcher?  27 THE COURT:  I don't know if the witness knows what you're  28 talking about.  29 MR. GOLDIE:  All right.  Perhaps I should go back.  30 THE COURT:  Put the document before you, if you would, if it  31 would help.  32 MR. GOLDIE:  33 Q   In the claim that was submitted to the federal  34 government there is a chapter 3 marked "The  35 Establishment of the Kitwancool Indian Reserves" and  36 do you know who wrote that?  37 A   He doesn't know who.  38 Q   Is there a researcher employed by the Kitwancool whose  39 name is Mae Derrick?  40 A   Yes.  Mae Derrick is the researcher, but I did not see  41 this completed.  42 Q   I see.  43 A   I wasn't there when this was completed.  44 Q   Did you see parts of it when she was working on it, if  45 she worked on it?  4 6 A   No.  47 Q   No.  All right.  Do you remember the troubles with the 6015  S. Marsden (for Plaintiffs)  Cross-exam by Mr. Goldie  Submissions by counsel  1 surveyors in the 1920's when you were a very young  2 man?  3 A   Yes, I remember.  4 MR. GOLDIE:   Yes.  And the Kitwancool at that time turned the  5 surveyors back, they didn't want them surveying land  6 in the Kitwancool Valley; is that right?  7 MR. GRANT:  My Lord, I just want to say that now we're going  8 into the creation of the Kitwancool Reserve, and I  9 submit that there is no relevance to the subject  10 matters before the court of the creation of a reserve  11 outside the territory with respect to the Kitwancool,  12 and that was my understanding of why chapter 3 was  13 excluded in your earlier ruling and it was not  14 canvassed with this witness on direct for that very  15 reason.  And it wasn't a question that it was not  16 relevant to Vernon Smith, it was not relevant to the  17 case.  18 MR. GOLDIE:  Well, I'm not interested in the establishment of  19 the reserves, My Lord, I'm interested in the actions  20 and attitudes of the Kitwancool and the other  21 plaintiffs with respect to the surveyors for any  22 reason, not just reserves, surveyors generally.  23 MR. GRANT:  Well, the attitude of the plaintiffs with respect to  24 surveyors I don't -- I don't oppose.  That's clearly  25 relevant.  It's -- the question though is not the  26 plaintiffs, it's the Kitwancool who are clearly not  27 plaintiffs in the action.  28 MR. GOLDIE:  Well, we have a bit of a problem because my friend  29 puts forward this witness as a Gitksan, and at some  30 point I'll be saying the knowledge of the Kitwancool  31 is the knowledge of the Gitksan and vice versa.  But I  32 submit, My Lord, that I haven't got to the point of  33 talking about reserves, and I'm not talking about  34 reserves, I'm talking about surveyors.  35 THE COURT:  Apart from reserves, how does it help the trial with  36 these issues to know, if such was the case, that the  37 Kitwancool people obstructed or prevented surveyors  38 from going on the grounds?  39 MR. GOLDIE:  Because it led to a number of the incidents, some  40 of which were referred to in the opening by my  41 friends.  42 THE COURT:  I haven't got that committed to current memory, Mr.  43 Goldie, what he said in that.  44 MR. GOLDIE:  One was the burning of houses at Kitsegukla and by  45 white man and the arrival of a gun boat and the  46 varying attitudes that people had with respect to  47 whose -- the varying attitudes that the people had 6016  Submissions by counsel  1 with respect to the purposes of that meeting and the  2 suggestion was made in the opening that this was  3 regarded as just a feast whereas in point of fact the  4 evidence, my friend jocularly called it the Victoria  5 colonist evidence, was that it was sent up there to  6 overawe the natives at the time.  7 THE COURT:  Assuming that happened at Kitsegukla —  8 MR. GRANT:  Forty years earlier, My Lord.  9 THE COURT:  -- what bearing does that have on the Kitwancool  10 prevention, if I can call it that?  11 MR. GOLDIE:  Well, the — it's all part of the same thing.  It  12 is the question of jurisdiction within this valley.  13 Now, my friend has led this evidence to say these  14 people are all the same.  The fact that they're --  15 Kitwancool aren't plaintiffs in this particular  16 instance is irrelevant.  They are, according to this  17 witness, the same cultural group.  And the Exhibit  18 1303, if my memory serves me correctly, is the funding  19 application of the Tribal Council and it talks about  20 all of these things as one; the evidence before the  21 Royal Commission, which has been referred to, the  22 attitude that these people have held that they retain  23 jurisdiction and have never relinquished it, and that  24 the -- Mr. Marsden has personal knowledge of the  25 resistance of the Kitwancool to surveyors, the same.  26 I'm going to put questions to him with respect to the  27 B.C. Special Fund.  All of these things are opened up  28 by virtue of the witness saying "We're Gitksan."  29 THE COURT:  All right.  Thank you.  I'm sorry, Mr. Grant, Mr.  30 Macaulay?  31 MR. MACAULAY: I have no submissions.  32 THE COURT:  All right.  Thank you.  Mr. Grant?  33 MR. GRANT:  Well, My Lord, with respect, when my friend says  34 it's all part of the same, it isn't.  The Skeena  35 uprising was in 1888.  The events he's now talking  36 about are 1927.  But time isn't the only distinction,  37 and paragraph 51 or 52 of the statement of claim  38 expressly excludes this chief and his house members as  39 a number of other chiefs and house members from this  40 action and their territory.  The events he's now  41 dealing with are events that occurred outside the  42 claims territory.  The documents that we are now  43 talking about, if this is -- my friend says this is  44 all relevant, and as Mr. Macaulay has referred to in  45 the past, is a whole volume of documents relating to  46 the Kitwancool area which have not thus far been  47 elucidated in evidence.  There's crime reports, 6017  Submissions by counsel  1 there's all kinds of things which all make interesting  2 reading, but I don't know if it's going to have that  3 much of a bearing on the case.  And I would submit  4 that there is some point at which there should be some  5 kind of confines, and I appreciate the liberality with  6 which the court has viewed that.  I appreciate that  7 that's what has been done, but once again we're now  8 moving into the whole question of Kitwancool and what  9 happened there, which all may be very interesting, but  10 entirely irrelevant to what we're dealing with here.  11 My friend is not asking this witness about what Guxsan  12 did or what happened at Kitsegukla, he's asking about  13 what the Kitwancool did.  And he hasn't, with all due  14 respect, established at all that the people involved  15 in the surveyors are Kitwanga or other Gitksan who are  16 ancestors of the plaintiffs, and I submit that they  17 are not.  18 THE COURT:  All right.  Where do you say this obstruction of the  19 surveyors took place, Mr. Goldie, in the 1920's,  20 whereabouts?  21 MR. GOLDIE:  In at least one case it took place on the road  22 between Kitwanga and Kitwancool.  23 MR. GOLDIE:  I made a reference to Exhibit 23.  I'm in error in  24 that regard, My Lord.  It's Exhibit 384, tab 8.  25 THE COURT: Well, Mr. Goldie, I have serious reservations about  26 the relevance of this evidence, but I think that I  27 will allow you to adduce it, subject to the objection.  28 I'm not sure that I should try and rule in these  29 things at this time.  The one, with respect,  30 persuasive argument that I want to consider is the  31 fact that the witness was put forward on the basis  32 that the laws and presumably the culture of the  33 Kitwancool are the same as that of the Gitksan, and  34 that was part of Mr. Grant's introduction to the  35 evidence of this witness and the basis for the  36 admissibility of much of the evidence he gave.  And if  37 they are, I assume for the moment that they are, the  38 same cultural people, as I think they probably are,  39 then their conduct in the management or in the defence  40 or the care of their lands may bear or may form a  41 basis for an inference in the same way the way the  42 Kitwancool people carry out the Gitksan laws may be  43 the basis for an inference as to how the Gitksan also  44 carry out or observe their laws, and for that reason  45 and subject to any objection I'm going to allow the  46 evidence to be adduced.  But, as I say, I have some  47 serious reservation about how useful it would be to 601?  S. Marsden (for Plaintiffs)  Cross-exam by Mr. Goldie  1 know that the Kitwancool didn't let some surveyors in  2 in 1920.  I'm not sure that that's going to be much of  3 a foundation for an inference, but together with other  4 evidence it just might, and for that reason I'll allow  5 the evidence to be called.  6 MR. GOLDIE:  Thank you, My Lord.  I did want to correct the  7 reference I made to that 1303.  It would be  8 misleading.  9 THE COURT:  The correct number is what?  10 MR. GOLDIE:  Is Exhibit 384, tab 8.  11 THE COURT: Yes.  All right.  12 MR. GOLDIE:  And that's the exhibit, My Lord, that includes the  13 Kitwancool in the Gitksan villages.  It refers to the  14 village as represented by the Tribal Council as  15 Hagwilget, Moricetown, Kitwancool, Kitwanga,  16 Kitsegukla, Gitanmaax, Sika doak, Glen Vowell and  17 Kispiox.  18 THE COURT:  Who by the way is Sika doak?  19 MR. GOLDIE:  Sika doak is Glen Vowell.  2 0 THE COURT:  Oh, that's Glen Vowell.  21 MR. GOLDIE:  Yes.  22 THE COURT:  All right.  23 MR. GOLDIE:  24 Q   And in that document Glen Vowell's in brackets, which  25 I can't pronounce very well.  26 Now, I think you told us, Mr. Marsden, that you  27 remembered the resistance to the surveyors and do you  28 recall -- did you know the late Mr. Albert Williams  29 who was the second president of the Kitwancool?  30 A   Yes, I remember him.  31 Q   And did Mr. Williams ever tell you of the claims put  32 forward by the Kitwancool based on the Royal  33 Proclamation of 1763?  34 THE INTERPRETER: What was the year?  35 Q   1763.  36 A   No.  No.  They never mentioned this to me and Peter  37 Williams never mentioned it to me either.  38 Q   You're not aware of a document that was posted up in  39 the Kitwancool territory headed "Indian protest  40 against white settlers coming into the Kitwancool  41 Valley"?  Do you ever remember a document that had  42 those words on it in English, a resolution of the  43 Kitwancool Indians?  44 THE INTERPRETER: Could you repeat that question again, the first  45 part?  46 Q   Do you have any knowledge of a resolution of the  47 Kitwancool Indians which was posted up in the village 6019  S. Marsden (for Plaintiffs)  Cross-exam by Mr. Goldie  1  2  3  A  4  MR.  GOLDIE  5  6  7  THE  COURT:  8  MR.  GOLDIE  9  10  11  12  13  14  15  16  MR.  GRANT:  17  18  THE  COURT:  19  MR.  GRANT:  20  21  22  MR.  GOLDIE  23  24  MR.  GRANT:  25  26  THE  COURT:  27  MR.  GOLDIE  28  Q  29  A  30  31  32  33  MR.  GOLDIE  34  35  MR.  GRANT:  36  37  38  THE  COURT:  39  MR.  GRANT:  40  41  MR.  GOLDIE  42  Q  43  44  A   '  45  46  47  Q  and elsewhere headed "Indian protest against white  settlers coming into the Kitwancool Valley."?  No.  :   All right.  Thank you.  Now, I'm going to ask you  some questions about your trap line and under tab 7 of  that book in front of you is a map.  Do you want the bottom half or the top half?  :  It runs right from the bottom up to the top.  It's  number 0615T029, My Lord.  Mr. Marsden, I'm instructed that the area that is  identified with the number 0615T029 is what is  commonly known as the Kitwancool Band trap line, and  it runs right up from the lowest most southerly point  being just below Kitwanga Lake right up past to the  Bell-Irving River.  My Lord, it's my understanding that the majority, if  not all of this, is outside of the claimed territory.  Of the plaintiffs' claimed territory?  The territory that's the subject of the court  action, and I would object to the relevance of the  questions with respect to it.  :  I don't think that all is.  In fact -- and that's  what I want to ask him about.  Oh, if you're dealing with that, some part may be  within that.  All right.  Go ahead.  Is that the trap line of the Kitwancool Band?  That is the area of the territory of the Kitwancool,  but it's not correct.  It's not correct what the game  warden has done here.  This is not right.  Look at  this .  :   You're pointing to a place about half-way about in  the middle of the licence?  The narrow place north of Derrick Creek where it's  narrowed down is where the witness was pointing, My  Lord, to.  Yes.  All right.  Sort of a neck in the territory in the trap line  registration.  Now, this trap line is in fact about three or four  trap lines put together is it not?  We know we registered trap lines, but this is not --  it's not correct.  The game warden doesn't know the  area and it's not correct.  Well, you may not agree then with that particular map, 6020  S. Marsden (for Plaintiffs)  Cross-exam by Mr. Goldie  1 but the Kitwancool Band has a registered trap line  2 doesn't it?  3 A   Yes.  It is in the territories of the Kitwancool and  4 it's also in that book about the Kitwancool laws.  5 Q   But unlike any other of the Gitksan this trap line is  6 in the name of the head chiefs of the Kitwancool for  7 the whole of the Kitwancool Band?  8 A   Yes.  9 MR. GOLDIE:   Right.  Now, in the upper right-hand corner of  10 that trap line to the right of what is marked as the  11 Nass River, and I'm pointing to an area which has on  12 it 0615T029 right up in the right-hand corner, My  13 Lord.  14 THE COURT:  Yes.  15 MR. GOLDIE:  Otherwise identified by having the letter 69 just  16 below the trap line number.  17 THE COURT:  Yes.  18 MR. GOLDIE:  And it has a couple of timber licences 4096P and  19 4120P, et cetera.  Isn't that in the territory of  20 Djogaslee, one of the named plaintiffs?  Can you help  21 me?  22 THE TRANSLATOR: How do you spell that?  23 MR. GOLDIE:  D-j-o-g-a-s-1-e-e.  24 THE TRANSLATOR: Djogaslee.  25 MR. GOLDIE:  Djogaslee.  26 MR. GRANT:  Just for the record, I think what Mr. Goldie's  27 referring to is an area that's to the east of a river  28 there.  There's a river.  29 THE COURT:  Yes, the Nass River, so it says.  30 MR. GRANT:  Oh, yes.  Yes.  31 THE COURT:  Yes.  32 MR. GRANT:  To the east of the Nass River then.  33 MR. GOLDIE:  Isn't that —  34 THE INTERPRETER: Which part are you talking about, this side?  35 MR. GRANT:  This is the Nass River there.  36 THE INTERPRETER: Uh-huh. And this side is —  37 MR. GRANT:  And for the witness, My Lord, it's to the west of  38 Shaladamus Creek which is on the map too.  39 THE COURT:  I think, Mr. Goldie, we might adjourn now and you  40 can see if he can inform himself of the map --  41 MR. GOLDIE:  I'm just going to —  42 THE COURT:  -- with the purpose of possibly answering the  43 question.  All right.  Thank you.  44 THE REGISTRAR: Order in court.  45 THE COURT:  We'll adjourn until two o'clock.  Thank you.  46 THE REGISTRAR: Court will adjourn until two.  47 6021  S. Marsden (for Plaintiffs)  Cross-exam by Mr. Goldie  1 (PROCEEDINGS ADJOURNED AT 12:30)  2  3 I hereby certify the foregoing to be  4 a true and accurate transcript of the  5 proceedings herein transcribed to the  6 best of my skill and ability.  7  9 Tanita S. French  10 Official Reporter  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  6022  47 (PROCEEDINGS RECONVENED AT 2:00 p.m.) 6022  S. Marsden (for Plaintiffs)  Cross-exam by Mr. Goldie  1  2 THE REGISTRAR:  Order in court.  On Delgamuukw versus Her  3 Majesty the Queen at bar.  4 THE COURT:  Before you start, Mr. Goldie, I think I should  5 acknowledge my thanks and the thanks of all of us for  6 the thoughtfulness of our reporters and for the  7 diligent service they have rendered to us,  8 particularly in influencing us with a birthday cake in  9 celebration of the first year of this trial.  10 MR. GRANT:  The focus on first, My Lord, gives me some cause for  11 concern.  12 MR. GOLDIE:  One of them suggested to me that they were the only  13 people who have derived direct benefits.  14 THE COURT:  Certainly doing better than the rest of us as I'm  15 sure.  Oh, and I have a card from them which I don't  16 think needs to be marked as an exhibit.  Thank you,  17 again.  18 MR. GOLDIE:  Mr. Marsden, before the lunchbreak I pointed out an  19 area to you of the Kitwancool band trapline, which I  20 suggested to you was within the territory of Walter  21 Wilson, a Gitksan plaintiff in this action.  Is that  22 your understanding?  23 MR. GRANT:  Before -- I just wanted to correct something, My  24 Lord, that I had said and that the court suggested  25 which was that this was to the east of the Nass River.  26 In fact, My Lord, the river that flows to the west of  27 the area referred to in the north-east part of this  28 map is the Bell-Irving River, and so this is to the  29 east of the Bell-Irving River and to the north of the  30 Nass River which flows along in an east-west  31 direction.  32 THE COURT:  Wait until I find that.  33 MR. GOLDIE:  Can Your Lordship go to the top right-hand corner  34 of the licence, the words --  35 THE COURT:  Yes.  36 MR. GOLDIE:  And the -- the river that is running north and  37 south in that top right-hand corner is the  38 Bell-Irving, and the river that is running -- that  39 provides the running east and west is the Nass.  4 0 THE COURT:  Are you sure?  41 MR. GRANT:  Yes.  My Lord you can see it on the other map.  42 MR. GOLDIE:  This is Exhibit 24-A, My Lord.  0613T029 is  43 outlined like that.  4 4 THE COURT:  Yes.  45 MR. GOLDIE:  The area we are talking about is in there.  This is  46 the Bell-Irving.  47 THE COURT:  If you follow that river — 6023  S. Marsden (for Plaintiffs)  Cross-exam by Mr. Goldie  1  MR.  2  MR.  3  4  MR.  5  THE  6  7  THE  8  9  MR.  10  11  12  13  14  15  MR.  16  17  THE  18  19  MR.  20  21  THE  22  23  MR.  24  MR.  25  THE  26  27  28  MR.  29  THE  30  MR.  31  32  33  34  35  36  37  MR.  38  MR.  39  MR.  40  41  MR.  42  43  44  45  THE  46  MR.  47  GRANT:  It joins the Nass.  GOLDIE:  The confluence of the Bell-Irving and the Nass is  right.  GRANT:  And the Nass continues that way.  COURT:  Oh, the Nass continues easterly.  Yes, yes, all  right.  Thank you.  COURT:  Well, I'm sorry to be difficult, gentlemen, but the  map also shows --  GRANT:  Can we have a translation of the evidence, please?  A   This is not right.  The game warden put this on here  which is not right.  The Meziadin is over here and  that's where the territory goes this way, the  Kitwancool territory goes this way not towards  Bell-Irving.  GRANT:  She is indicating this way to the west, towards  Meziadin Lake.  COURT:  This looks like the Irving if that's the  Bell-Irving.  GRANT:  No.  That's Irving Creek but the Bell-Irving goes up  this way, My Lord.  COURT:  I see, all right.  This is Irving Creek and that's  Bell-Irving River, is it?  GOLDIE:  Yes.  GRANT:  Yes.  COURT:  All right.  Is Mr. Marsden confusing the boundary of  the Kitwancool territory for the boundary of the  trapline licence?  GOLDIE:  I don't think so, but I'll clarify that, My Lord.  COURT:  All right.  GOLDIE:  Q   Mr. Marsden, does the solid black line which I am  following with my finger outline the Kitwancool band  trapline territory in the north?  And it starts right  there and goes up like this.  A   That's the trapline starting here but it doesn't go up  to -- up here, it doesn't go up there.  GRANT:  Indicating the north-east.  GOLDIE:  Please let me finish.  GRANT:  Well I just want it for the record where he is  pointing.  GOLDIE:  Yes, I'm going to do that.  Please don't interrupt  again.  All right.  Now you've pointed, Mrs. Sampson, to  the top right-hand corner --  INTERPRETER:  Yes.  GOLDIE:  -- of the trapline and you are saying that is  not -- and Mr. Marsden has stated that is not included 6024  S. Marsden (for Plaintiffs)  Cross-exam by Mr. Goldie  1 in the trapline; is that correct?  2 THE INTERPRETER:  Yes, that's what he is saying.  3 MR. GOLDIE:  4 Q   Thank you.  What is the boundary of the trapline,  5 according to Mr. Marsden's recollection?  And if we  6 could get a pen and ask him just to trace it on that  7 map.  8 A   It's -- it is in one of those -- on the maps that you  9 showed me from Kitwancool, one of the Kitwancool  10 books.  You can look at that.  11 Q   If you would give me the original exhibit which is the  12 histories of the Kitwancool, it's the yellow one  13 that's just underneath there, Madam Registrar -- or  14 the orange one I should say.  15 THE REGISTRAR:  448.  16 MR. GOLDIE:  17 Q   Thank you.  18 Is this what you refer to, Mr. Marsden, that is  19 The Histories, Territories and Laws of the Kitwancool,  20 and it is the map and the frontispiece?  21 A   This is the approximate boundary here.  It's the  22 approximate and that's -- that's what the Kitwancool  23 people were asking the game warden to have these  24 territories put down as traplines for protection.  25 Q   They wished to have their territory registered as a  26 trapline for protection?  27 A   Um-hmm, yes.  28 Q   All right.  But Mr. Marsden, on the map which is in  29 Exhibit 448, doesn't the approximate line enclose even  30 more territory of Walter Wilson's than the present  31 trapline map which is in front of you?  32 A   If it is on this map then it's the game warden's  33 fault, because these lines here are not -- are not  34 really correct, they are approximate and --  35 Q   Yes?  36 A  And if it includes that, well that's the reason.  And  37 even here it's not right.  Over here where there  38 should be a river or a creek known as Xsi masxwit, it  39 goes past that straight line and it goes this far.  4 0 Q   All right.  41 A  And it's not shown here.  42 Q   All right.  Maybe I can say one more thing.  Firstly,  43 that this map is not the game warden's map, it is --  44 the straight lines are those put on by Mr. Wilson  45 Duff.  4 6    THE WITNESS:  Um-hmm.  47 Q   And now I'm going to show you the map that we looked 6025  S. Marsden (for Plaintiffs)  Cross-exam by Mr. Goldie  1 at this morning which is attached to Exhibit 449.  2 Now, is that more like the trapline boundary that you  3 say should be --  4 MR. GRANT:  Just indicate where the Xsi Txemsem is.  5 A   If this territory -- this is a map made according to  6 the words, they have not travelled on that land, they  7 were made according to the descriptions of the chief.  8 And if -- it is not our fault if this map is wrong.  9 And if Wilson's -- Walter Wilson's territory happened  10 to be in here, well then we are sorry for that,  11 because Walter has an adaawk on his territory.  It  12 shows that he owns a territory when there is an adaawk  13 there.  14 MR. GOLDIE:  All right, thank you.  15 MR. GRANT:  Indicating north-east.  16 MR. GOLDIE:  17 Q   The witness was referring to the map of Exhibit 449.  18 And for my purposes, My Lord, it is sufficient if I  19 have just this one further question, and that is,  20 would you trap or any member of your house trap on  21 territory within your trapline but which included  22 Walter Wilson's territory?  23 A   No.  This is not of the frog clan's territory, it  24 belongs to the wolf territory, and I really don't know  25 if -- if this is the case.  26 Q   All right, thank you.  I'm going to come back to the  27 question of trespass a little later.  28 The -- I think I asked you this question before  29 lunch, however, the Kitwancool band trapline is --  30 consists of a number of individual traplines, both  31 wolf and frog; is that not correct?  32 A   Yes, yes.  The reason why they made the -- they say  33 they call this territory the -- they have a trapline  34 registration is because they want to make it clear to  35 the people that this is their own territory and that  36 is the -- the wolf clan and the frog clan of  37 Kitwancool.  38 Q   Yes.  I'll come back to that in a little while, but  39 the -- I want to ask you some questions about Fred  40 Johnson.  Do you remember we -- I asked you if you  41 knew Fred Johnson, Lelt, and you said yes, and he --  42 he was with you at the Pole Cutting Ceremony of Joan  43 Ryan, and he is a frog from Kitwanga; is that correct,  44 Fred Johnson?  45 A   Yes.  46 Q   And his wife was a wolf from Kitwancool?  47 A   Yes. 6026  S. Marsden (for Plaintiffs)  Cross-exam by Mr. Goldie  1 Q   Is her name Mary?  2 THE WITNESS:  Maggie.  3 Q   Maggie, right.  Do you remember a man by the name of  4 William Baynon coming to Kitwanga and Kitwancool in  5 1953?  6 A   No.  7 Q   All right.  The -- now Mr. Fred Johnson's father was a  8 high chief in the wolf clan at Kitwancool?  9 THE WITNESS:  Wilitsxw.  10 Q   Wilitsxw?  11 THE WITNESS:  Yeah.  12 Q   And the present holder of that name is John Robinson?  13 THE WITNESS:  That's right.  14 Q   Yes.  And Fred Johnson gave evidence on commission  15 here, it's Exhibit 69-A, My Lord, and he talked about  16 the boundaries of the Kitwancool and the claims around  17 Meziadin Lake.  He would have the right to tell those  18 stories of the Kitwancool because his father was a  19 Kitwancool chief?  20 A   Yes.  He has this right because he was -- he was  21 brought up around that area and he spent so much time  22 with his father.  23 Q   Yes.  24 A  And he has the right to point out the boundaries and  25 the names of the places to other people.  26 Q   And he would have the right to tell how the holder of  27 the name, his father's name owned territory?  28 A   Yes.  29 Q   Now, he told -- he told a story about a trial before  30 the Indian agent, Mr. McCullough, and it was about who  31 owned the territory.  Have you ever heard of Mr.  32 McCullough?  33 A   No.  34 Q   Well, I'm going to read to you what Mr. Johnson said  35 at page 1-66.  36 THE COURT:  Where are you reading from?  37 MR. GOLDIE:  One dash sixty-six of Exhibit 69-A.  38 THE COURT:  Oh yes, all right.  39 MR. GOLDIE:  4 0 Q   And this is Mr. Rush:  41  42 Q  "Did 'Wiilitsxw —"  43  44 How does one pronounce that name?  45  46 THE TRANSLATOR:  'Wiilitsxw.  47 MR. GOLDIE: 6027  S. Marsden (for Plaintiffs)  Cross-exam by Mr. Goldie  1 Q Q  "— 'Wiilitsxw tell the Nisga' about  2 this?  3 A  Yes, they summonsed my father.  Council  4 from the Nisga', Master McCullough, he  5 was the Indian agent.  6 Q  How did they summons your father?  7 A  They wrote on blue paper and there was  8 blood on the paper.  This is the law.  9 They talked Gitksanemx.  That's when the  10 court started.  11 Q  Did the Nisga' want your father's land?  12 A  Yes, they tried to claim it.  13 Q  Is that why they summoned him over the  14 Nass?  15 A  Yes, he was arrested by the council.  16 (In English)  Indian agent was the  17 judge and judged him.  18 Q  What happened over there?  19 A  They had court.  My father spoke.  This  20 was the land that was given by the  21 Stikine, and he sang the song.  My father  22 brought the wing that he got from the  23 Stikine and he showed it, and the Indian  24 agent took it.  The Indian agent said  25 this is what happens during the war, on  26 the battle fields.  This is what happens  27 in the battle fields, this is the sign,  28 this is the symbol of battle.  That is  29 why 'Wiilitsxw owns the territory."  30  31 Now, I'm not going to ask Mrs. Sampson to  32 translate all of that, but would you translate from  33 lines 23 to 30 and tell him that that's what Mr.  34 Marsden — tell Mr. Marsden that's what Mr. Johnson  35 said about court before the Indian agent?  36 A   Yes, this is what they do when there is a battle.  37 Q   Yes.  And had he heard that the title of the wolf clan  38 was confirmed by the Indian agent, Mr. McCullough  39 or —  40 MR. GRANT:  You are asking Mr. Marsden?  41 MR. GOLDIE:  42 Q   Yes.  Had he heard that the title of the wolf clan was  43 confirmed by the Indian agent?  44 A   Yes.  It -- the territory belongs to the wolf clan.  45 Q   But has he heard -- had he heard about the trial  46 before the Indian agent?  47 A   I did not -- I did not hear about this but I know that 602?  S. Marsden (for Plaintiffs)  Cross-exam by Mr. Goldie  1 territory belongs to the wolf clan.  2 Q   Yes, right.  Now I have another question to ask you  3 about the people who have moved away and who claim  4 rights.  Would you tell Mr. Marsden that's what I'm  5 going to ask him?  6 A   Yes, this is what I said earlier today.  7 Q   Yes.  8 A   That the people that have moved from Kitwancool are  9 the people that claim -- it's not really the Nisga'a  10 people that are claiming the Kitwancool land, it's the  11 people that have moved down there from Kitwancool that  12 is claiming this land.  13 Q   I want -- Mr. Marsden, is there -- is there a family  14 where members of your clan, Ganada, who moved over to  15 Stewart at the head of the Portland Canal?  16 A   I -- I don't -- if it did I would have known about it.  17 Q   If they attend feasts at Kitwancool, their rights in  18 the territory of Kitwancool are protected; is that  19 correct?  20 A   They do not come every time their chief puts a feast,  21 but they do come.  And then -- and now what has been  22 said about Stewart, whether relatives were living  23 there, I did not hear about this before, I don't know  24 any wolf clan or any frog clan from Stewart.  25 Q   All right.  I just want to get one other point clear,  26 and that is that the Kitwancool protect their  27 territory against those who have moved away and who  28 have lost their rights, by having the trapline  29 registered in the name of the band?  30 A  When the Kitwancool people did this it was for the  31 protection of their land, not -- they weren't even  32 thinking of things like this, about pushing people out  33 of their land that have rights to their land -- to  34 this land, they weren't -- they never even thought of  35 that.  36 MR. GOLDIE:  No, all right.  Well I'll come back to that in a  37 minute, then.  38 My Lord, I wonder if we might have the large  39 enlargement of the trapline area that was under tab 7  40 of the document book marked separately.  41 MR. GRANT:  Well, My Lord, with respect to this, I — I don't  42 think this is part of Exhibit 24-A, I don't think the  43 witness has really identified this document.  That is  44 he has made reference -- there is places on the map  45 that he has referred to but it hasn't been identified.  46 In fact, he has disputed the boundary lines on it and  47 I would object to it being admitted because I don't 6029  S. Marsden (for Plaintiffs)  Cross-exam by Mr. Goldie  1 think it has been proven.  2 MR. GOLDIE:  Well, it's simply an enlargement of what is on 24-A  3 and those are my instructions and I am merely  4 suggesting that it --  5 THE COURT:  Is 24-A an exhibit or for identification?  6 MR. GRANT:  For identification.  7 MR. GOLDIE:  No, it's an exhibit.  8 MR. GRANT:  It's for identification.  It's all part of the  9 alienations which --  10 MR. GOLDIE:  My understanding —  11 THE REGISTRAR:  Exhibit 24-A is an exhibit, large map of  12 registered trapline.  13 MR. GRANT:  My understanding was it was only for identification.  14 THE COURT:  Well, all right.  This will be — if counsel tell me  15 this is merely an enlargement of something that is  16 already an exhibit it may itself be an exhibit.  But  17 it's subject to the privities of the evidence.  18 MR. GOLDIE:  Oh, absolutely, absolutely.  19 THE COURT:  All right.  So we will call this 24-B?  2 0 MR. GRANT:  No.  21 MR. GOLDIE:  No, there is a whole series of —  22 THE COURT:  All right, we will give it its own number.  23 THE REGISTRAR:  455.  24  25 (EXHIBIT 455 - Tab 7 in Blue Book, Enlarged Trapline  2 6 Map)  27  28 THE COURT:  And of course, Mr. Goldie, it doesn't prove any of  29 the other trapline boundaries that weren't discussed  30 in the evidence.  31 MR. GOLDIE:  No.  32 MR. GRANT:  24-A, as I recall, was marked as an exhibit proper  33 for a very limited purpose which was there was some  34 place names that were referred to in June 8th of last  35 year.  36 THE COURT:  All right.  37 MR. GOLDIE:  More than that.  38 THE COURT:  24-A, all right.  And this is tab what?  39 MR. GOLDIE:  It's tab 7 of the document book.  4 0 THE COURT:  Yes.  41 MR. GOLDIE:  Now, My Lord, I want to refer to the documents  42 under tab 6.  4 3 THE COURT:  I can put the map away?  44 MR. GOLDIE:  Yes, thank you.  45 THE COURT:  Tab 6?  46 MR. GOLDIE:  Yes.  My Lord, the documents under that tab are the  47 contents and total without any attempt to 6030  S. Marsden (for Plaintiffs)  Cross-exam by Mr. Goldie  1 discriminate, of the office file of the Kitwancool  2 band trapline number 615T029, it's the defendant's  3 production number 1845.  4 THE COURT:  In whose office?  5 MR. GOLDIE:  In the office of the Provincial Ministry of  6 Environment, Hazelton District.  And my friend has  7 admitted the authenticity of it.  8 MR. GRANT:  Well, my friend may be mistaken.  9 MR. GOLDIE:  Better read this again.  10 MR. GRANT:  Yes.  There was a — within this large body of  11 material is an application for registration of a  12 trapline in the name of the Kitwancool band.  And as I  13 have indicated -- well I shouldn't say it's within  14 this document because the listing my friends gave of  15 the documents to admit did not include their number  16 18 -- sorry, yes, there it is, it does have 1845, and  17 it's referred to as a file from 1946 to 1979.  18 Now, we've taken a position, My Lord, that with  19 respect to any application registrations that are  20 signed and the originals are available, especially  21 when they have these overlap type of clippings on them  22 as you have seen in the past, we would admit those.  23 The balance of this file, My Lord, I would object to.  24 It's -- it's not necessarily business records, it's  25 a -- it's flotsam and jetsom and anything else that  26 happens to get into the file from whatever source, and  27 we would object to the admissibility of the bulk of  28 this file.  If my friend is seeking to put in -- here  29 it is, I think I have it at the end.  30 THE COURT:  The application dated 16th of August, '51?  31 MR. GRANT:  Just a moment, My Lord.  It's dated — well —  32 THE COURT:  Name of the Kitwancool Indian band?  33 MR. GRANT:  Yes.  The application is dated —  34 THE COURT:  At the back?  35 MR. GRANT:  In the name of the Kitwancool band.  3 6 THE COURT:  Yeah.  37 MR. GRANT:  Yes.  I'm just looking for that.  We  38 that document, the one that's signed.  39 is more than one copy and there is --  40 THE COURT:  Well the signature — I can't read the signature of  41 the applicant.  42 MR. GOLDIE:  My Lord, perhaps I can assist my friend.  The — I  43 will be referring to certain documents and I think  44 they can be proved at this point, and I'll be making a  45 submission with respect to the balance later.  I have  46 the original documents here:  1845-71 is a document  47 that is signed by Walter S. Douse, and I take it  have admitted  I think there 6031  S. Marsden (for Plaintiffs)  Cross-exam by Mr. Goldie  1 that's what my friend is referring to, and there are  2 lists attached to it and that leads to the application  3 of 74.  I shouldn't say leads to the application, it  4 is preceded by an application dated February 28th,  5 1935.  I have the registration in the name of the  6 Kitwancool Indian band and I don't think that was done  7 at the time, I think it became Walter S. Douse and  8 Company.  9 THE COURT:  What date did you say, 1935?  10 MR. GOLDIE:  Yes.  That was 187 — 1845-74.  11 MR. GRANT:  I presume that's the page number?  12 THE COURT:  I don't see a number on it.  13 MR. GOLDIE:  Well, in your book of documents, My Lord, the  14 numbers have been attached in sequence.  1845-74, the  15 number is right in the middle of the page, it's an  16 application for registration of a trapline in the name  17 of Kitwancool Indian Band, and over the page is the  18 reverse of that.  19 THE COURT:  Yes.  20 MR. GOLDIE:  And that was 1935.  21 THE COURT:  Yes, I have that.  Well, what do you say about the  22 original document, Mr. Grant, do you have any problem  23 with that document?  24 MR. GRANT:  No.  I now see -- this document, the original  25 document, my friend has just shown me three and he has  26 explained that this document 1845-74, we admitted  27 that, that can go in without any objection.  28 THE COURT:  All right.  That will be Exhibit 456.  29 THE REGISTRAR:  Exhibit 456.  30  31 (EXHIBIT 456 - Tab 6 of Blue Book, Trapline  32 Registration of Kitwancool Indian Band dd. February  33 28, 1935)  34  35 MR. GRANT:  And my friend wishes 1845-71?  36 MR. GOLDIE:  Yes.  37 MR. GRANT:  We are not objecting to that, subject to the issue  38 of relevance, My Lord, but I think that can be argued  39 later.  40 THE COURT:  What's the date of the second one?  41 MR. GOLDIE:  The second one, My Lord, is an application dated  42 September 24th, 1951.  43 THE COURT:  All right.  That will be Exhibit 457.  44 THE REGISTRAR:  457.  45  46  47 (EXHIBIT 457 - Tab 6 of Blue Book, Trapline 6032  S. Marsden (for Plaintiffs)  Cross-exam by Mr. Goldie  1 Registration of Walter S. Douse and Company dd.  2 September 24, 1951)  3  4 MR. GOLDIE:  And 1845-73 is the cancellation of the Kitwancool  5 Indian band registration to be renamed as the Walter  6 S. Douse and Company trapline.  I take it my friend  7 doesn't have an objection to that?  8 MR. GRANT:  No, it's a business record, I don't object to that,  9 My Lord, subject to relevance, of course.  10 THE COURT:  All right.  Cancellation will be Exhibit 458.  11 THE REGISTRAR:  458.  12  13 (EXHIBIT 458 - Tab 6 of Blue Book, Cancellation of  14 Trapline Registration of Kitwancool Indian Band dd.  15 August 16, 1951)  16  17 THE COURT:  The date of the cancellation, please?  18 MR. GOLDIE:  Is the 28th — I'm sorry, the 16th of August, 1951.  19 So the sequence is the registration in the name of  20 the band in 1935, cancellation of that in August '51,  21 followed by a registration in the name of Walter S.  22 Douse and Company on the 18th of August, 1951.  23 MR. GRANT:  I would ask that the originals be filed, please.  24 MR. GOLDIE:  Yes.  25 MR. GRANT:  Those are copies.  26 MR. GOLDIE:  I tender the application of February 28th, 1935 as  27 the Exhibit 456.  2 8 THE COURT:  Yes, thank you.  29 THE REGISTRAR:  456.  30 MR. GOLDIE:  I tender the registration in the name of Walter S.  31 Douse and Company of 18th of August, 1951, as Exhibit  32 457.  That's 1845-71.  33 THE REGISTRAR:  Okay.  34 MR. GOLDIE:  And the cancellation of the band registration dated  35 16th of August, '51 as 458.  36 THE REGISTRAR:  458, thank you.  37 MR. GOLDIE:  Mr. Marsden —  38 THE COURT:  There is another document though, Mr. Goldie, is  39 there not, September 24th, 1951?  40 MR. GOLDIE:  Yes, My Lord.  That's —  41 THE COURT:  Where is it?  Maybe not —  42 THE REGISTRAR:  September 24th, '51 is Exhibit 457.  43 THE COURT:  Well, we called it that originally but I don't think  44 that that's what it was called when Mr. Goldie  45 tendered the actual documents.  I thought I saw one  46 here.  47 MR. GOLDIE:  Yes.  But I think it is now Exhibit 457, My Lord. 6033  S. Marsden (for Plaintiffs)  Cross-exam by Mr. Goldie  1 THE COURT:  All right.  2 MR. GOLDIE:  September 24th, 1951.  3 THE COURT:  All right.  4 MR. GOLDIE:  Oh, I think I see where the problem arises.  If I  5 may see 457 for a minute.  6 THE COURT:  Are there two dates on 457?  7 MR. GOLDIE:  Yes, there are.  The date of the 18th of August,  8 1951 is on the face of Exhibit 457 and it is the date  9 of the application.  10 THE COURT:  All right.  11 MR. GOLDIE:  Then on the reverse of that and the reverse is  12 partly on the page following 1845-71.  13 THE COURT:  All right.  14 MR. GOLDIE:  Your Lordship will see the date September 24th,  15 1951, and that appears to be the date on which the  16 approval was -- some of them were given.  17 THE COURT:  Yes.  18 MR. GOLDIE:  And then the attachment is 1845-72.  19 THE COURT:  All right.  20 MR. GOLDIE:  Perhaps you might show that to His Lordship so that  21 he can see that.  22 THE COURT:  All right, thank you.  23 MR. GOLDIE:  They are all under tab 6.  24 THE REGISTRAR:  Tab 6, okay.  25 MR. GOLDIE:  26 Q   Mr. Marsden, the registrations that we've been talking  27 about indicate members of a company, and these were  28 the people who were entitled to trap on that line, as  29 I understand it, and I'm going to ask you to look at  30 page 1845-72.  Now look at the first column.  Walter  31 Douse was a member of what clan?  32 A   The wolf clan.  33 Q   All right.  And Frank Benson?  34 A   Fireweed.  35 Q   And Abel Campbell I think you told us was wolf.  36 THE WITNESS:  Yes.  37 Q   Sarah Campbell, wolf?  38 THE WITNESS:  Wolf.  39 Q   Ernest Derrick?  40 THE WITNESS:  Ganada.  41 A   Frog.  42 Q   Rebecca Derrick, John Derrick, Peter Derrick, Lucy  43 Derrick, Walter Derrick, Mary Derrick, Elva Derrick,  44 Vera Derrick, are all frog?  45 THE WITNESS:  Lax Gibuu.  4 6 Q   Oh.  47 THE WITNESS:  John Robert is Lax Gibuu. 6034  S. Marsden (for Plaintiffs)  Cross-exam by Mr. Goldie  1 THE INTERPRETER:  Connie Derrick.  2 THE WITNESS:  Oh yeah, fireweed.  3 THE INTERPRETER:  Connie Derrick is fireweed.  4 Q   Fireweed.  5 A   Frog, Peter J. Derrick.  Lucy is the wolf clan, Walter  6 Derrick is in the wolf clan.  7 Q   Yes?  8 A  Mary Derrick is in the frog clan.  9 Q   Yes?  10 A   Elva Vera Derrick is the frog clan.  Vera Mary Derrick  11 is frog clan.  12 Q   All right.  We needn't go any further, but these were  13 all people in Kitwancool who were -- had the power to  14 trap within the band trapline?  15 A   These are the people that are -- that have their names  16 down here, they are the people that registered the  17 trapline.  18 Q   Yeah.  And they are as we have seen, from both wolf  19 and frog and some fireweed?  20 A   Yes.  21 Q   And do you know of any other trapline of the Gitksan  22 where the members registered are of three different  23 clans?  24 THE INTERPRETER:  Are we talking about Kitwancool or —  25 Q   The Gitksan, generally?  26 A   Here the reason why we have three clans on registered  27 traplines here is because the -- the Gisk'aast married  28 into the woman's house and which is called  29 yuugwilatxw, and this is why the Gisk'aast is on here.  30 Q   That's the fireweed?  31 A   Yes.  32 Q   Because -- well let me put this question then:  This  33 registration with all of these people on it from three  34 clans, the fireweed because they married into the  35 woman's clan, is not found anywhere else in the  36 Gitksan to your knowledge?  37 A   I do not know about this.  38 Q   All right.  Now, would you look at document 1845-64 in  39 there.  Now this is a letter from the Indian agent,  40 Mr. Mallinson to the game warden in 1946.  Do you  41 remember a Mr. Mallinson as the Indian agent?  42 A   No.  43 Q   That's a long time ago.  Anyway, he reports or he says  44 that:  45  46 "Douglas Marsden, Indian of the Kitwancool Band  47 advises me that the trapline covered by the above 6035  S. Marsden (for Plaintiffs)  Cross-exam by Mr. Goldie  1 named registration under the name of Fred and  2 Rufus Good should really be in the following  3 mentioned order of names:"  4  5 And then he sets out some names.  Douglas Marsden was  6 your father, was he?  7 THE WITNESS:  Yes.  8 Q   And he was a high chief?  9 THE WITNESS:  Yes.  10 Q   What was his chief's name?  11 THE WITNESS:  Malii.  12 Q   Malii.  And that is wolf?  13 THE WITNESS:  Wolf.  14 Q   Yes, thank you.  And would -- would Douglas Marsden  15 have the power to say who should be on the trapline?  16 A   Yes.  17 Q   Thank you.  Now 1845-63, one page back, it's a letter  18 dated May 16th, 1946 from Mr. Mallinson to Mr. Martin,  19 the game warden, and he says that he is informed by  20 Peter Mark of the Gitsegukla Band.  Do you remember a  21 Peter Mark?  22 A   Yes, I know him.  23 Q   And he reported that Peter Williams of Kitwancool is a  24 member of his trapline company.  Peter Williams is  25 fireweed?  26 THE WITNESS:  Yes.  27 Q   And do you know if Peter Mark of Gitsequkla, do you  2 8 remember whether he was fireweed?  29 THE WITNESS:  Yes.  30 Q   Yeah.  Now, if that is so, if Mr. Williams was --  31 should have been recorded in Gitsequkla, is it right  32 that he should not be on the Kitwancool band?  33 MR. GRANT:  The trapline registration?  34 MR. GOLDIE:  35 Q   Trapline registration, yes?  36 A   Yes, he has the right here because he married the  37 woman from Xamlaxyeltxw's house and he has the rights  38 to go on that territory as Yuugwilatxw.  39 Q   All right.  40 THE COURT:  Is it convenient to adjourn, Mr. Goldie?  41 MR. GOLDIE:  Yes, all right My Lord, thank you.  42 THE COURT:  All right.  Take the afternoon adjournment, please.  43 THE REGISTRAR:  Order in court.  Court will adjourn.  44  45  46  47 (PROCEEDINGS ADJOURNED AT 3:00 p.m.) 6036  S. Marsden (for Plaintiffs)  Cross-exam by Mr. Goldie  1  2  3 I hereby certify the foregoing to be  4 a true and accurate transcript of the  5 proceedings herein transcribed to the  6 best of my skill and ability.  7  8  9  10    11 Toni Kerekes,  12 O.R., R.P.R.  13 United Reporting Service Ltd.  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  4 6 (PROCEEDINGS RECONVENED AT 3:20)  47 6037  S. Marsden (for Plaintiffs)  Cross-exam by Mr. Goldie  1 THE REGISTRAR: Order in court.  2 THE COURT:  Goldie.  3 MR. GOLDIE:  4 Q   My Lord, perhaps I can condense one or two things  5 here.  6 When Mr. Walter Douse died the line was then  7 registered in the names of the four head chiefs  8 including yourself; is that right?  9 A   Yes, that's right.  10 Q   And at that time an up-to-date list of the members of  11 the Kitwancool who were entitled to trap was given to  12 the game warden; is that right?  13 THE WITNESS: Uh-huh.  14 Q   Thank you.  From time to time did not the high chiefs  15 consult the game warden with respect to correcting and  16 changing the trap lines?  17 A   Yes.  This did happen and at one time we called one of  18 the game wardens to come and meet with us because  19 there was a trap line that was not correct and we did  2 0 invite him but he didn't show up.  21 Q   But you had meetings with the game warden?  22 A   Yes.  Yes.  We do call him when we want to, but at  23 times they come and meet with us.  24 Q   Yes?  25 A   To talk to the people.  26 MR. GOLDIE:   If you'd look under tab 6, page 1845 - 56.  My  27 Lord, that's a copy of what purports to be a  28 resolution addressed to the Indian Affairs Branch,  29 Babine Indian Agency, requesting that registration be  30 in the name of the four chiefs.  Unless my friend  31 wants me to, I don't propose going through that with  32 the witness, but I'd ask whether my friend has any  33 objection to that being marked.  34 MR. GRANT:  Well, I guess my only point, My Lord, is that what  35 is the relevance of all of this?  We're now talking  36 about the Kitwancool trap line that is outside of this  37 territory.  I mean we're expanding and expanding the  38 scope of the evidence.  39 THE COURT:  Well, you see it comes back to the problem mentioned  40 a while ago that you tendered this witness as a person  41 who could speak about the Gitksan affairs, the Gitksan  42 sociology, if I can call it that, and suggestions were  43 made that what applied to the Kitwancool applied to  44 the Gitksan.  45 MR. GRANT:  Well, he said the laws were the same, the Gitksan  46 laws were the same, but we're talking here about a  47 territory, a trap line registration, outside of the 603?  Discussion  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR.  THE  MR.  THE  GRANT  COURT  GRANT  COURT  claim area.  THE COURT:  But one of the laws of the Gitksan, as I have  understood this case, was that territories followed  the matrilineal line.  Yes.  And I don't know if this leads to some different  conclusion, but it might.  Well, if that's —  How can I say now that there won't be a foundation  for an inference here somewhere?  I don't know if  there will or not, but I expect that I'll hear an  argument somewhere that this casts some doubt or  suspicion upon the certainty of the Gitksan laws as  they have been explained, not by just this witness,  but by other witnesses.  That's why I'm captive, the  same as you are Mr. Grant.  I don't know where we're  going.  I have to assume that Mr. Goldie thinks that  he knows where he's going and we may all be surprised,  or some of us.  GOLDIE:  Including me.  COURT:  I wish I could, but I don't think I can stop him.  GOLDIE:  It also has -- well, I'm not going to make any  further submissions on that.  COURT:  Well, what are you —  GOLDIE:  I'm asking my friend if there's any -- if he will  accept or admit that that document is what it purports  to be as signed by Peter Williams and stating that the  registration is to be in the name of these four  people.  What I'm seeking to do, My Lord, is to  establish that the registration in the name of the  four people is at the request of them.  COURT:  Which is not in the matrilineal line I should think.  GOLDIE:  Well, that's right, among other things.  COURT:  Just a moment, please, we're waiting for Mr. Grant  now.  Well, I think now my friend is saying what he  intends to do, and I think if that's what he intends  to do, he should ask this witness that, if that's what  this is.  This is a letter purportedly signed by Peter  Williams to the Indian Affairs Branch.  The document  speaks for itself in terms of what it says.  It says  what it says.  THE COURT:  There's nothing the witness can add to that unless  you're requiring Mr. Goldie to identify the  signature -- or sorry, the witness to identify the  signatures.  MR. GRANT:  Well, I have not gone through this document with the  MR.  THE  MR.  THE  MR.  THE  MR.  THE  MR. GRANT 6039  Discussion  1 witness or Mr. Williams, but it appears to me that it  2 looks similar to another document that he identified  3 the signature of and I'm not --  4 THE COURT:  I think you owe us a yes or a no, Mr. Grant.  5 MR. GRANT:  Well, if he's only concerned about whether that  6 document appears to be a letter from Mr. Williams, I'm  7 not going to object to it going in.  8 THE COURT:  All right.  9 MR. GRANT:  It's not a resolution as my friend categorizes it,  10 it appears to me to be a letter.  11 THE COURT:  It looks more like a letter of request.  12 MR. GOLDIE:  Yes.  13 THE COURT:  All right.  14 THE REGISTRAR:  What's the date on it?  15 MR. GOLDIE:  This is dated the 26th of February, 1965, and I'd  16 ask that that be the next exhibit, My Lord.  17 THE REGISTRAR: Exhibit 459.  18  19 (EXHIBIT 459: Tab 6 of blue book, Letter dated  20 February 26, 1965)  21  22 MR. GOLDIE:  It's page 1845 - 56 under tab 6.  23 MR. GRANT:  And just for the record, My Lord, I reserve the  24 right on relevance to argue that in due course.  25 THE COURT:  Oh, yes, certainly.  26 MR. GOLDIE:  Yes.  27 Now, I want to refer you to page 1845 - 14.  Now,  28 this is a letter dated March the 25th, 1970, to the  2 9 Game Branch of the Provincial Government with copies  30 to Mr. MacFarlane of the Indian Affairs branch signed  31 by Mr. Williams, and again I'd ask my friend if he  32 accepts that document or admits the authenticity of  33 that document.  34 MR. GRANT:  Regarding this document, My Lord, I would suggest if  35 my friend wishes to put it in that it be marked for  36 identification at this time.  I'd like to review this  37 document and determine -- obviously it's a more  38 extensive document than the other one.  I have not had  39 an opportunity to do this with the person who appears  40 to be the author of this document.  41 THE COURT:  Well, there's no point in marking it for  42 identification.  43 MR. GOLDIE:  No.  I —  44 THE COURT:  You can reserve on your agreement and speak to your  45 friend about it in due course.  46 MR. GOLDIE:  Well, my friend then is not accepting the document  47 at the present time? 6040  S. Marsden (for Plaintiffs)  Cross-exam by Mr. Goldie  1 THE COURT:  Yes.  2 MR. GOLDIE:  3 Q   Mr. Marsden, I'm showing you the original of this  4 letter which is at page 1845 - 14.  Can you identify  5 Mr. Peter Williams' signature?  6 THE WITNESS:   Yeah, that's right.  7 Q   And do you recall a meeting with Mr. MacFarlane and  8 Mr. Smythe to discuss correcting trap line  9 registrations, and this was in 1965?  10 MR. GRANT:  1970.  11 MR. GOLDIE:  12 Q   I'm sorry, 1970 is correct.  13 A   I wasn't at the meeting.  I wasn't there at that time,  14 but they did have a meeting.  15 Q   And later did you see a copy or did Mr. Williams  16 inform you of what happened at the meeting?  17 A   I don't think so.  18 Q   Let me ask you this:  Do you remember being told that  19 Mr. Williams had requested that separate registrations  2 0 in the name of Michael Inspring Bright and Mr. Adams  21 be cancelled because they had not come to the  22 Kitwancool Capital about taking out that registration?  23 A   No.  24 Q   You don't remember that.  Do you remember Mr. Williams  25 telling you or you discussing with Mr. Williams that a  26 registration in the name of Claytons, Sydney, Peter,  27 John and Douglas Clayton, must be cancelled because it  28 was within your territory?  2 9          A   No.  30 Q   Do you recall being advised that the registration of  31 Sam and James Hyzims must be cancelled because it was  32 on Chief Gwashlam's territory?  33 A   No.  34 MR. GOLDIE:   My Lord, I'm going to make a — I would tender  35 this strictly on the basis of the identification of  36 the signature and I would make a submission at a later  37 date with respect to the purpose for which it may be  38 received.  39 THE COURT:  All right.  Mr. Macaulay?  40 MR. MACAULAY: I have no submission to make.  41 THE COURT:  Grant?  He has identified the signature.  42 MR. GRANT:  Yes, he's identified the signature.  I think it can  43 be marked for an exhibit for that purpose only.  4 4 THE COURT:  Yes.  459.  45 THE REGISTRAR: 459 was the letter from February 26th.  46 THE COURT:  Oh, yes.  All right.  It will be 460 then.  47 THE REGISTRAR: 460.  And it's the March 25th, 1970 letter? 6041  S. Marsden (for Plaintiffs)  Cross-exam by Mr. Goldie  1 MR. GOLDIE:  Yes.  It comprises pages 1845 - 14 to 16.  2 THE REGISTRAR: Thank you.  3  4 (EXHIBIT 460: Tab 6, blue book, letter dated March 25,  5 1970)  6  7 MR. GRANT:  It's March 25th.  8 MR. GOLDIE:  I'm sorry, what did I say?  March 25th 1970.  Yes.  9 Now, I want to refer you to page 29, 1845 - 29.  10 THE COURT: I'm sorry, what page?  11 MR. GOLDIE:  12 Q   Twenty-nine, My Lord.  13 Now, this is entitled "Brief to the Game Branch  14 Government of British Columbia Game Warden".  It is  15 dated April 19th, 1969, and you identify your  16 signature at the bottom of that document, Mr. Marsden,  17 do you?  18 THE WITNESS: Yes.  19 Q   Was that -- that document appears to be a complaint on  20 the part of you, Abel Campbell, Walter -- and Walter  21 Derrick, that Frank Benson is encroaching upon various  22 trap lines within the Kitwancool blanket trap line, in  23 particular Mr. Abel Campbell's trapping ground.  Do  24 you remember a complaint about Mr. Frank Benson?  25 A   Yes, it is.  2 6 Q   And what you wanted was for the Game Branch to do  27 something about Mr. Frank Benson?  28 A   Yes.  29 Q   In fact, Frank Benson was trespassing wasn't he on  30 Abel Campbell's territory?  31 A   Yes.  32 Q   And Frank Benson was a member of the village of  33 Kitwancool, but he was trapping in the wrong place?  34 A   Yes.  35 Q   And the Game Branch wrote Mr. Benson telling him to  36 trap on that line formerly held by James Weget; is  37 that not correct?  38 THE INTERPRETER: What was the first name of Weget?  39 Q   James Weget.  40 A   Yes.  41 Q   And the letter that the game warden wrote, a copy was  42 sent to Mr. Edgar Good, chief councillor?  Edgar Good  43 was the chief councillor at Kitwancool?  44 THE WITNESS: Yes.  45 Q   And the letter to Mr. Benson is at page 1845 - 28 and  46 he said:  47 6042  S. Marsden (for Plaintiffs)  Cross-exam by Mr. Goldie  1 "I have been advised by the headmen of the  2 Kitwancool Band trap line (Marsden, Good,  3 Derrick, Campbell & Company), that you have  4 been taking beaver from that portion of the  5 line that is rightfully Abel Campbell's.  6 They also stated that you have trespassed on  7 other lines for the purpose of taking  8 beaver.  9 This action you have taken is contrary  10 to the wishes of the headmen of the  11 Kitwancool line, and I wish to advise you to  12 stop this act of trespass on to the grounds  13 of your neighbours.  You are to work that  14 portion of the line formerly held by James  15 Weget to which you now hold trapping rights.  16 This is in accordance with the wishes of the  17 headmen of the blanket trap lane  18 registration.  19 I am advising Edgar Good, Chief  20 Councillor, of this letter and shall request  21 that he take action to see that you stay  22 within the confines of the area that has  23 been allotted to you."  24  25 And the letter to Mr. Good is at page 1845 - 27.  26 MR. GRANT:  Twenty-eight.  27 MR. GOLDIE:  No, 27, and Mr. Smythe wrote to Mr. Good, the chief  28 councillor, that he's received a letter of complaint  29 and that Mr. Benson is a registered member and nothing  30 we can legally do unless he steps outside the area,  31 and they discussed it with Mr. MacFarlane and they --  32 he has written a letter to him and he makes certain  33 suggestions.  34 My Lord, in my submission the document entitled  35 "Brief to the Game Branch" of April 19th, 1969, signed  36 by Mr. Marsden, the letter from Mr. Smythe to Mr.  37 Benson dated May 2nd, 1969, which a copy of which went  38 to the chief councillor, and Mr. Smythe's letter to  39 Mr. Good of May 2nd, 1969, should all be — I tender  40 all three as part of the same transaction and submit  41 that the documents should be marked given a number A,  42 B and C.  43 THE COURT: Mr. Grant?  You don't mind, Mr. Macaulay?  4 4 MR. MACAULAY: I have no objection.  45 THE COURT:  Mr. Grant?  46 MR. GRANT:  I believe of course the witness identified his own  47 signature and the letter to -- he knew about the 6043  S. Marsden (for Plaintiffs)  Cross-exam by Mr. Goldie  1 letter to Frank Benson.  I have no objection to those  2 two.  3 THE COURT:  Well, what's the basis for the admissibility of the  4 letter to Mr. Good, Mr. Goldie?  5 MR. GOLDIE:  It's referred to —  6 THE COURT:  Nobody knows if it was ever received.  7 MR. GOLDIE:  -- in the letter to Benson.  "I am advising Edgar  8 Good, Chief Councillor, of this letter and shall  9 request that he take action to see that you stay  10 within the confines...".  And then Mr. Good's letter,  11 the letter to Mr. Good, has a postscript, "A copy of a  12 letter written to Mr. Benson is enclosed for your  13 records."  14 THE COURT: Well, there's no mention in the letter or any  15 evidence that suggests -- that would even show that it  16 was mailed, does it?  It says that --  17 MR. GOLDIE:  Well, except the witness' knowledge that the letter  18 went to Benson.  19 MR. GRANT:  I'm not objecting to that letter.  20 THE COURT:  Your friend's not objecting to that, it's the one to  21 Mr. Good.  Did you ask the witness about the letter to  22 Mr. Good?  23 MR. GOLDIE:  Beg your pardon, My Lord?  24 THE COURT:  Did you ask the witness about the letter to Mr.  25 Good?  26 MR. GOLDIE:  27 Q   Well, I'll put -- I asked him if he was aware of the  28 letter to Mr. Benson and he said yes, but I can put  29 this question:  Were you, Mr. Marsden, aware that the  30 game warden or the conservation officer, Mr. Smythe,  31 wrote to Mr. Good about Mr. Benson's trespass?  32 A   This must be the time when I was working in Rupert.  33 Q   Well —  34 A  And I don't remember this.  35 Q   Well, you signed the brief on April the 19th, that's  36 the long sheet of paper there --  37 THE INTERPRETER: He's talking about the letter from —  38 Q   From —  39 THE INTERPRETER:   — Smythe.  40 Q   -- Mr. Smythe to Mr. Good, and I'm asking him, was he  41 aware that Mr. Smythe had written to Mr. Good as a  42 result of the brief that Mr. Marsden and Mr. Campbell  43 and Mr. Derrick sent him?  44 A   Yes, I know the situation.  45 MR. GOLDIE:  Well, I don't propose pursuing it any further.  In  46 my submission the documents are all connected.  47 THE COURT:  Yes, I think it can now be marked as 461 B. 6044  S. Marsden (for Plaintiffs)  Cross-exam by Mr. Goldie  1 MR. GOLDIE:  And that would make the brief as Exhibit 461 A.  2 THE COURT:  Yes.  3 MR. GOLDIE:  The letter to Mr. Benson 461 B.  4 THE COURT:  Yes.  5 MR. GOLDIE:  And the letter to Mr. Good 461 C.  6  7 (EXHIBIT 461A: Tab 6, blue book, Brief to Game Branch)  8 (EXHIBIT 461B: Tab 6, blue book, Letter dated May 2,  9 1969 to Frank Benson)  10 (EXHIBIT 461C: Tab 6, blue book,Letter dated May 2,  11 1969 to Mr. Good from Mr. Smythe)  12  13 MR. GOLDIE:   Mr. Marsden —  14 MR. GRANT:  I reserve the right to argue about relevance.  15 THE COURT:  Well, that's always open.  I was once on a murder  16 case where counsel said the evidence of the eye  17 witness was irrelevant.  18 MR. GOLDIE:  19 Q   I hope this is a little more relevant, My Lord.  20 Is it in accordance with Gitksan law that trespass  21 on trap lines are settled by the Fish and Wildlife  22 branch?  23 A   The chiefs do not use the white man's law, but it was  24 their decision to do this, to have this man come in.  25 It was the chiefs' decisions, but this is not the  26 Gitksan law that the game warden would come in, but it  27 was by the decisions of the chiefs and this is why  28 this has happened.  29 Q   And it happened in other places in the Gitksan -- in  30 other villages?  31 A   Yes, this has happened at times when the white man's  32 law interferes with the Gitksan law and this happens.  33 MR. GOLDIE:   My Lord, there are a number of other documents in  34 that file.  I don't propose going through them.  I'm  35 going to ask that the original file from Hazelton  36 containing the original documents, except those which  37 have been marked here, be allotted a number for  38 identification as I wish to argue, as I indicated  39 earlier, I wish to argue a number of the exclusions on  40 a variety of grounds at the end of the lay witnesses.  41 THE COURT:  All right.  Any objection to that, Mr. Grant?  42 MR. GRANT:  I take it Mr. Goldie wishes just to reserve a number  43 now?  4 4 THE COURT:  Yes.  45 MR. GRANT:  Well, I have no objection of course reserving a  46 number.  I'm sure we'll argue that when it goes in  47 later. 6045  S. Marsden (for Plaintiffs)  Cross-exam by Mr. Goldie  1 THE COURT:  All right.  This balance of tab 6 then will be  2 allotted number 462.  3 THE REGISTRAR: 462.  4 MR. GOLDIE:  I want to have the witness identify the letter  5 under tab 8.  6 MR. GRANT:  That letter is admitted.  It's in the notice to  7 admit.  It's not necessary for the witness to identify  8 the signature, if that's what my friend is seeking.  9 It's been identified or admitted.  10 MR. GOLDIE:  All right.  I tender that as an exhibit, My Lord.  11 It's Mr. Marsden's letter of February 12th, 1987, to  12 H.R. Misener Contracting.  13 THE REGISTRAR: Mr. Marsden's letter to H. —  14 MR. GOLDIE:  R. Misener, M-i-s-e-n-e-r, Contracting, of February  15 12th, 1987.  16 THE REGISTRAR: Thank you.  17 MR. GOLDIE:  That's number 462 is it?  18 THE COURT:  4 63.  19 THE REGISTRAR: 463.  20  21 (EXHIBIT 463: Tab 8, blue book, Mr. Marsden's letter  22 to H.R. Misener dated February 12, 1987)  23  24 MR. GOLDIE:  463, yes.  Thank you, My Lord.  The documents under  25 numbers -- under tabs 9 to 18 inclusive, the  26 authenticity of those documents has been admitted --  27 I'm sorry, that's not correct.  The documents under  28 tab 9, tab 10, tab 11 —  29 MR. GRANT:  Tab 10 is not admitted.  30 MR. GOLDIE:  I'm sorry, I thought that was.  31 MR. GRANT:  Just a moment.  32 MR. GOLDIE:  My friend is right.  I'm looking at the wrong date  33 9, 11 -- under tab 14 a copy of a letter to Albert  34 Williams dated May 1st, 1920.  Under tab 15, a copy of  35 Mr. Williams' letter to Mr. Ditchburn of May 7th,  36 1920.  Tab 16 --  37 THE COURT:  May 4th, 1920, is it?  38 MR. GOLDIE:  Beg your pardon, My Lord?  39 THE COURT:  Oh, it's May 7th is it or is it 4th?  40 MR. GOLDIE:  2795 is May 7th, I believe.  41 THE COURT:  And that's 1920?  42 MR. GOLDIE:  Yes.  43 THE COURT:  All right.  44 MR. GOLDIE:  Then Mr. Williams' letter to the Governor General  45 of May 15th, 1920, under tab 16.  The letter of the  46 assistant deputy and secretary to Mr. Albert Williams  47 of May 26th, 1920, under tab 17.  Mr. Collison's 6046  S. Marsden (for Plaintiffs)  Cross-exam by Mr. Goldie  1  2  THE  REGIST  3  MR.  GOLDIE  4  5  6  7  8  9  10  11  THE  COURT:  12  MR.  GOLDIE  13  14  15  THE  COURT:  16  MR.  GOLDIE  17  THE  COURT:  18  MR.  GOLDIE  19  THE  COURT:  20  MR.  GRANT:  21  THE  COURT:  22  MR.  GRANT:  23  24  25  26  27  28  29  30  31  32  33  34  35  MR.  GOLDIE  36  37  38  39  40  THE  COURT:  41  42  43  44  MR.  GOLDIE  45  46  THE  COURT:  47  MR.  GOLDIE  letter of May 31st to Mr. Ditchburn under tab 18.  RAR: May 31st?  :  May 31st, 1920.  Right.  My Lord, what I would propose doing is simply  noting that those have been admitted as to  authenticity and I will be making a submission with  respect to their admission and the purpose for which  they are to be admitted at the time I make the -- my  overall submission on admissibility with respect to  lay witness documents.  All right.  You're not asking them to be marked now?  :  Well, if I asked Your Lordship to mark them now I  would have to deal with each in terms of the purpose  for which it is tendered.  All right.  All right.  :  And if we can simply reserve a block of numbers.  All right.  Well, number 9 will be 464.  :  Yes.  And 18 will be —  My Lord, I'd like to comment on one of them.  Yes?  That is tab 11.  There was a proviso in the notice  to admit in tab 11 because it refers to -- the  document refers to three maps.  There were not three  maps attached with the notice to admit and I was  prepared to admit the document on the basis that  all -- the entire document would go in now.  I  don't -- it appears from this that they don't have  the -- that the document being tendered is not the  entire document, and that's what I wish to -- that's a  proviso in terms of the authenticity because I did not  have the complete document in that there were two maps  referred to, blueprints 2 and 3, not included with the  delivery of the notice to admit.  :  My Lord, these are all archival documents found in  the Archives of the Public -- the Public Archives of  Canada in record group 10, and I have the photocopies  as taken and my instructions are that in that file  there was only the one map.  All right.  With that we're going to depend upon a  matter of law as to whether the archival documents  apparently incomplete in form were admissible or not  admissible is it not?  :  We will be running into this in a number of places  where --  All right.  :  -- the archival records are incomplete, but I can 6047  Proceedings  1 assure Your Lordship and my friend that so far as the  2 archival -- archives are concerned, that's what is  3 there.  4 THE COURT:  Yes.  5 MR. MACAULAY: I've read this letter and looked at the map  6 attached and it seems to me that the letter probably  7 should have referred to a map of three reserves rather  8 than three maps.  It seems to be complete in the sense  9 that when you read the text and you look at the map  10 you see everything that's referred to in the text.  11 THE COURT:  You think — is there a map of three different  12 reserves on one map?  13 MR. MACAULAY: Yes.  14 THE COURT:  Well, that may be a —  15 MR. GRANT:  I think that perhaps may be what happened here.  16 MR. GOLDIE:  I hadn't examined it as closely as my friend.  17 THE COURT: As Sherlock Holmes said to Dr. Watson, that he had  18 seen but not observed, Mr. Macaulay has observed and  19 you've only seen it.  20 MR. GOLDIE:  The dog didn't bark for me.  21 If we could have those reserved then?  22 THE COURT:  Yes, I reserve numbers 464 to 470, but the exhibits  23 have not been marked.  24 MR. GOLDIE:  Yes.  25 THE COURT:  All right.  What have you decided to do, gentlemen?  26 Are you finished, Mr. Goldie?  27 MR. GOLDIE:  Yes, I am, My Lord.  28 THE COURT:  What is your pleasure, Mr. Macaulay and Mr. Grant?  29 MR. MACAULAY: Well, if the interpreter is to be used I'm sure  30 I'll be an hour at least.  31 THE COURT:  Yes.  Do you want to break for a while and come back  32 and finish or do you want to -- I can sit starting at  33 about 11 o'clock tomorrow morning.  34 MR. MACAULAY: I can be here at 11 o'clock tomorrow.  35 MR. GRANT  3 6 THE COURT  37    MR. GRANT  I can be here at 11 o'clock tomorrow morning.  Would you prefer that?  I'm just concerned about if we do break now and then  38 come back that the entire hour may not be useful and  3 9 we have to come back anyway.  4 0    THE COURT:  And you will be a while in re-examination?  41 MR. GRANT:  I won't be extensively long, but I might have  42 something to say.  43 MR. MACAULAY: I don't say I will be an hour, My Lord, but I  44 think that's a reasonable estimate.  45 THE COURT:  Well, the cautious course might well be to start at  46 eleven tomorrow.  Our beloved government is telling us  47 that we have to have trials in French here shortly so 6048  Proceedings  1 I have to go to some meetings about the French  2 language tomorrow morning which I'm going to be a  3 great help to them all I'm sure, but as soon as that's  4 finished -- and I have a pre-trial conference that I  5 have had outstanding for a long time according to an  6 important matter at ten, but I'm sure I'll be finished  7 by eleven and we can finish this comfortably tomorrow  8 then.  9 MR. GRANT: Yes, I believe so.  10 THE COURT:  All right.  Shall we adjourn until eleven?  11 MR. GOLDIE:  My Lord, may I say this, that when Mr. Grant asked  12 me if this week could be used I informed him of my  13 commitments and one of them is an out-of-town meeting  14 tomorrow.  15 THE COURT:  Yes.  16 MR. GOLDIE:  Miss Sigurdson can be here, but I'm concerned about  17 if a controversy arises during the course of  18 re-examination that it be reserved if Miss Sigurdson  19 so requests.  20 THE COURT:  Oh, I'm sure she can handle it can't she Mr. Goldie?  21 MR. GOLDIE:  I have that confidence.  22 THE COURT:  We'll see how we get along.  We'll keep that in mind  23 and if Miss Sigurdson --  24 MR. GRANT:  She's heard many of our debates on redirect.  25 MR. GOLDIE:  Yes, she has, and that's why I'm concerned.  26 THE COURT:  Yes.  Well, if Miss Sigurdson seems to be in  27 distress, I'm sure we'll give some heed to your  28 request.  Eleven o'clock then.  Thank you.  29 THE REGISTRAR: Order in court.  Court will adjourn until 11 a.m.  30  31 (PROCEEDINGS ADJOURNED TO 11:00 a.m. May 11, 1988)  32  33 I hereby certify the foregoing to be  34 a true and accurate transcript of the  35 proceedings transcribed to the best  36 of my skill and ability.  37  3 8    39 Tanita S. French  40 Official Reporter  41  42  43  44  45  46  47


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