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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1988-05-04] British Columbia. Supreme Court May 4, 1988

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 5751  1 May 4, 198 8  2 Vancouver, B.C.  3  4 THE COURT:  I'd like to inform counsel that I have received a  5 communication from some gentleman who -- or a copy of  6 a communication from a gentleman who may be a  7 plaintiff in this action.  Show it to Mr. Adams and  8 other counsel.  I don't propose to take any -- to make  9 any response to that matter, but I think counsel  10 should know I have received it.  11 Where is your witness, Mr. Mackenzie?  12 THE REGISTRAR:  Delgamuukw versus Her Majesty the Queen.  13 Sadie Howard, Courtroom 53, please.  14  15 VERNON SMITH:  Resumed  16  17 THE COURT:  Mr. Mackenzie?  18 THE REGISTRAR:  I caution the witness and the interpreter  19 they're both still under oath.  20 MR. MACKENZIE:  My lord, there's one point of clarification  21 arising from yesterday.  Your lordship will recall  22 that we had an argument, and your lordship came to  23 some -- came to a decision about the Kitwancool  24 comprehensive claim, 12 pages of which are now Exhibit  25 439.  My lord, that document appears under the  26 defendant's list of documents as number 1303 and a  27 copy of it was sent to Mr. Rush on April 7, 1987.  28 Pages 1 to 12 were included at that time as well as --  29 THE COURT:  I'm sorry.  Page 1 to —  30 MR. MACKENZIE:  1 to 12, which your lordship has agreed to have  31 entered as Exhibit 439.  32 THE COURT:  Yes.  33 MR. MACKENZIE:  My lord, the document as it appears in — on the  34 list of documents, number 1303 is in a slightly  35 different format.  It's on  36 eight-and-a-half-by-fourteen-inch paper, but it  37 contains the same material.  So just completing that  38 comment, my lord, pages 1 to 12 were included.  The  39 table of contents for the research submission, which  40 is page 13 in this -- in the volume which we have been  41 discussing here in Court was included.  Chapter one,  42 the oral tradition, that's at -- pages 14 to 20 were  43 included.  Chapter two, Kitwancool territorial rights  44 and boundaries, pages 21 to 32 was included.  Appendix  45 A, which commenced at page 53, page 59 was included,  46 and there was another two-page document entitled  47 "Interpretation of Phrases Incorporated in the 5752  1 Kitwancool Statement of Rights", signed by Peter  2 Williams, was included in that package.  My lord, this  3 came from a -- apparently came from a file in the  4 provincial government, but it -- that was the extent  5 of the material that was found and listed, and so to  6 the extent that your lordship ruled that the research  7 submissions were not appropriate to being submitted as  8 an exhibit, chapter one and chapter two and appendix A  9 were produced and listed over a year ago.  10 THE COURT:  Well, did I not rule that the research submission  11 could be used for the purposes of cross-examination to  12 the extent that it related to overlapping boundaries?  13 MR. MACKENZIE:  Your lordship ruled that with respect to chapter  14 two, Kitwancool territorial rights and boundaries --  15 THE COURT:  Yes.  16 MR. MACKENZIE:  My submission, my lord, will be that chapter one  17 insofar as it was disclosed some time ago and insofar  18 as it really is part of the document --  19 THE COURT:  Well, why is the oral tradition of the Kitwancool  20 people relative to this case?  21 MR. MACKENZIE:  Well, my lord, in my submission it — it  22 relates -- Mr. Smith spoke about it in his testimony.  23 Well, actually he spoke about the establishment of the  24 Kitwancool Reserve.  The oral tradition presumably  25 relates to the territories, including in the territory  26 overlap and Meziaden Lake territory, which was the  27 subject of Mr. Morrison's evidence.  Your lordship  28 will recall that Mr. Morrison spoke about his  29 traplines at Meziaden.  Really that's the subject of  30 the oral tradition, that territory about where he has  31 his traplines.  32 THE COURT:  Well, I — I would like to think that I could rule  33 on admissibility on the basis of statements of counsel  34 without having to read the document.  I don't mind  35 reading it if it's necessary to do so, but it  36 shouldn't be necessary to read it to see whether it  37 can have any relevance.  At the moment I'm not  38 convinced that there is any relevance to the oral  39 tradition as described by this document.  It may be  40 that a careful analysis of the evidence might disclose  41 that.  That hasn't caught my attention from the  42 evidence as it unfolded, but do I need to be troubled  43 or assisted by evidence about your opposition of the  44 Kitwancool chiefs?  I suppose they are Gitksan.  There  45 may be some osmotic effect.  I don't know.  What is it  46 that -- can you assist me in the practical way?  Why  47 do you -- can you state -- I would understand if 5753  1 counsel prefer not to state why you want something to  2 be part of the evidence in the case.  3 MR. MACKENZIE:  Well, my lord, as I have alluded to from  4 yesterday, we're concerned about the fact that there  5 is an overlap apparently disclosed in the documents  6 and we're also concerned with the fact that the  7 Kitwancool people are not participating in this  8 litigation.  To all intents and purposes they appear  9 to be exactly as all the other Gitksan people.  Their  10 material shows that -- shows their background.  It  11 shows that their claim to the territories, which may  12 overlap the Gitksan-Wet'suwet'en claim, are not a  13 recent fabrication but have been long standing, and it  14 may also show that for their own reasons the  15 Kitwancool people are not participating in this, their  16 own reasons related to their history.  17 THE COURT:  That surely doesn't show up in this document, does  18 it?  19 MR. MACKENZIE:  The oral traditions.  Well, my lord —  20 THE COURT:  Can you describe why they're not participating?  21 MR. MACKENZIE:  No.  It doesn't refer to that, my lord,  22 specifically.  It just gives the background of their  23 oral history and their wars with the Stikine people  24 and the development of the -- sorry -- the extension  25 of Kitwancool territory to take over Meziaden Lake.  26 That really is similar, in my submission, to the  27 process that took place with the Gitksan-Wet'suwet'en  28 people.  29 THE COURT:  Do you plan to cross-examine the witness on this  30 part if it's admitted, or do you just want to use the  31 presence of the witness in the box as a vehicle for  32 getting this written material into evidence?  33 MR. MACKENZIE:  That's primarily the reason I want to get it in,  34 my lord.  35 THE COURT:  Under what?  To cross-examine?  36 MR. MACKENZIE:  No.  To have the witness identify this as — as  37 part of the comprehensive claim material that's put in  38 and as representing the oral traditions of the  39 Kitwancool.  4 0 THE COURT:  All right.  Mr. Macaulay or Mr. Frey?  41 MR. MACAULAY:  I have no submissions to make except this, my  42 lord:  If a document, as this appears to be now, has  43 been produced long ago and this witness says, yes, I  44 am familiar with that document, I've got a copy, and  45 I've got custody of a copy in my capacity or access to  46 a copy in my capacity as the chief counsellor of  47 Kitwancool, then unless there's some serious question 5754  Ruling  1 of relevance, I don't see why it shouldn't be marked.  2 I haven't read that part.  I can't make any submission  3 about it as to -- no doubt we have a copy.  This may  4 be the opportunity for me to explain something.  No  5 doubt we have a copy.  That is, the government of  6 Canada has a copy, but we had not listed Kitwancool  7 people generally on the assumption that it wasn't  8 relevant to the issues before your lordship.  I'm  9 starting to change my mind as -- as a number of the  10 Kitwancool chiefs and others come to give evidence,  11 but I hope we won't be -- won't be required to  12 disclose all these documents that relate to  13 Kitwancool.  Very considerable documents we're talking  14 about.  15 THE COURT:  Thank you.  Mr. Adams?  16 MR. ADAMS:  My lord, the first point is that the plaintiffs are  17 not trying to prove the Kitwancool territories.  The  18 second point is this witness is not a Kitwancool  19 chief.  There have been Kitwancool and will be  20 Kitwancool chiefs called to assist from knowledge they  21 have that will help to prove the plaintiff's claims.  22 I conceded yesterday that evidence tending to show an  23 overlap could be relevant and to that extent this  24 document might be relevant.  There is a very large  25 volume of material that is tangentially relevant to  26 Kitwancool and a Kitwancool claim, and I understand  27 from a discussion with my friend, Mr. Macaulay,  28 yesterday that this stuff comes in by the box load and  29 at this stage if it says Kitwancool, it's shunted  30 aside to be dealt with later or not at all.  It seems  31 to me if this document is relevant, that all that  32 material that is relevant to the Kitwancool claim  33 becomes relevant, and we are faced with the task of  34 listing and dealing with all that material and all the  35 evidence that may arise from it.  And that's really  36 the only submission I have.  37 THE COURT:  Well, I did not allow chapter one to be used because  38 notice, I thought, had not been given.  It now turns  39 out that it has been given.  And that ground of  40 objection is, therefore, removed and reluctant as I am  41 to expand in any way the issues that might have to be  42 litigated here, it does seem to me that the  43 documentation relating to the oral tradition of the  44 Gitksan is relevant and therefore admissible for and  45 against both -- or all parties.  The Kitwancool  46 people, I am given to understand by evidence, are  47 Gitksan and therefore evidence about their oral 5755  Ruling  Cross-exam by Mr. Mackenzie  1 tradition, which is part of this case, seems to me to  2 be relevant and therefore admissible.  3 I have already ruled that those parts of chapter  4 two which deal with overlaps and territorial rights  5 and boundaries may be used in cross-examination.  I  6 don't think the document should be admitted.  That is,  7 chapter two shouldn't be admitted generally, because I  8 am certainly not concerned about Kitwancool  9 territorial rights and boundaries except to the extent  10 that they overlap, and I don't think I'm interested in  11 the legal sense in the establishment of Kitwancool  12 Indian reserves, and, therefore, it seems to me that  13 the only amendment I should make from my ruling  14 yesterday because of the changed circumstances is to  15 order that chapter one of the oral tradition may also  16 be admitted into evidence.  I don't think I wish to go  17 any further than that.  So I would amend my ruling of  18 admissibility accordingly by including now also pages  19 14 to 20.  20 THE REGISTRAR:  As Exhibit 439, my lord?  21 THE COURT:  As part of — what was the number?  22 THE REGISTRAR:  439.  2 3 THE COURT:  Yes.  24 THE REGISTRAR:  Pages 14 to 20?  2 5 THE COURT:  Yes.  26 (EXHIBIT 439:  Kitwancool Comprehensive Claim, pages  27 14 to 20)  28 THE COURT:  Mr. Mackenzie?  29 MR. MACKENZIE:  Thank you, my lord.  My lord, we just finished  30 dealing with one of the territories yesterday.  That  31 was Territory V at Kitwanga.  And I want to direct  32 the -- Mr. Smith's attention to the next territory,  33 which is across the river from Andimaul.  That's Map  34 W, Exhibit 427.  May I have the exhibit, please?  35 THE REGISTRAR:  The white book?  36 MR. MACKENZIE:  Both the plaintiffs' and the white book.  37 CROSS-EXAMINATION BY MR. MACKENZIE CONTINUED:  38 Q   Now, this territory also is owned by Calvin Hyzims,  39 isn't it, Mr. Smith?  40 A   Yes.  41 Q   And as we said, his house is the House of Simadiiks,  42 which is number 58.  Now, on your examination for  43 discovery you said that you recall saying that Peter  44 Turley or Giila'wa, number nine, owns that territory;  45 that Peter Turley's territory curved around and went  46 to the river across from Andimaul.  Do you remember  47 saying that?  Do you recall saying that? 5756  1  A  2  Q  3  4  A  5  Q  6  7  8  A  9  Q  10  11  12  13  14  15  16  17  18  19  20  21  A  22  Q  23  A  24  Q  25  26  27  28  29  30  31  32  33  34  35  36  37  38  A  39  Q  40  41  42  A  43  Q  44  45  46  47  Cross-exam by Mr. Mackenzie  I didn't catch where you were coming from.  We're speaking about the territory across from  Andimaul?  Yes.  And I'm just saying that when you were examined for  discovery, you said that Peter Turley owned that  territory, didn't you?  Do you recall that?  I couldn't recall that I said that, no.  Well, in your examination for discovery at question  590 you were referring to Giila'wa.  That's Peter  Turley's territory.  And I'm going to read Mr. Rush's  questions to you starting at page 589:  Q   "You have made some other reference in  your evidence given to Mr. Plant about  the territory Giila'wa and D'ewelasxw."  And that's number 63, which is Allen Johnson, isn't  it?  Yes.  And Giila'wa is Peter Turley, isn't it?  Yes.  Q   "And can you just tell us whereabouts  that territory's located?  I think you  said it was across from Gitwangak?  A   Yes.  Q   Can you tell us -- can you just tell us  where that is located?  A   It's on the south side, according to the  map, the south side on the Price Creek  side."  So you're starting to talk here about Giila'wa's  territory on Price Creek, which is Map X, Exhibit 428,  correct?  Yes.  And then you say it's about a quarter of a mile below  that and goes up to Winsa Geets, and that appears on  Map X, the Price Creek territory, doesn't it?  Yes.  And that is on the north side of the Three Sisters,  goes to Winsa Geets.  That's W-i-n-s-a, new word,  G-e-e-t-s, and goes behind -- goes behind Antgideekw,  A-n-t-g-i-d-e-e-k-w, and that's shown on Exhibit 428,  isn't it? 5757  1  A  2  Q  3  4  A  5  Q  6  7  8  9  10  A  11  Q  12  A  13  Q  14  15  A  16  Q  17  18  19  20  21  A  22  Q  23  A  24  Q  25  A  26  Q  27  A  28  Q  29  30  31  32  A  33  Q  34  35  36  A  37  Q  38  39  40  A  41  Q  42  A  43  Q  44  A  45  Q  46  47  Cross-exam by Mr. Mackenzie  Yes.  Goes behind the mountains on the -- on the side of  Giila'wa and runs behind -- can you pronounce that?  Anx Maiy Litsxw.  That's A-n-x, new word, M-a-i-y, new word,  L-i-t-s-x-w.  And that's a hill which doesn't show on  Exhibit 428, but it's just to the northeast of the  boundaries of the Price Creek territory, isn't it?  It's just up here, just northwest?  Yes.  Northeast, right?  Yes.  It's across the river from Gitwangak as well, isn't  it?  Yes.  So you said it goes down on the other side of that  mountain and it runs into conjunction with Simadiik's  territory on the north side of Andimaul, and there you  say that it -- it goes into the Skeena just across the  river from Andimaul, don't you?  Yes.  So you were asked those questions?  Yes.  And you gave those answers?  Yes.  And those answers were true?  Yes.  So you'll agree with me that at that time you said  that this territory, which we've looked at across from  Andimaul on Exhibit 427, you said that was owned by  Peter Turley, didn't you?  Yes.  And when you answered your interrogatories, you didn't  mention that territory that we're looking at now,  Territory W, did you?  No.  Because you were being asked about -- or at least you  said -- you answered about the territories owned by  Sakum Higookw, didn't you?  Yes.  And this wasn't one of them, was it?  No.  Do you know who holds the trapline in that territory?  No.  I don't know.  Now, moving over to Price Creek territory, which we  just discussed, that's the Map X which is Exhibit 428.  And you've testified that Peter Turley owns that 575?  Cross-exam by Mr. Mackenzie  1 territory, correct?  Right?  2 A   Yes.  3 Q   Can you agree with me that Allen Johnson also claims  4 that territory?  5 A   Yes.  6 Q   So the House of Giila'wa, number nine, and the House  7 of D'ewelasxw, number 63, that's Allen Johnson and  8 Peter Turley's house, both claim those territories?  9 A   Yes.  10 THE COURT:  When you say both territories, you mean the  11 territory on Exhibit 428?  12 MR. MACKENZIE:  I'm sorry, my lord.  Both claim the territory on  13 Exhibit 428.  14 THE COURT:  Thank you.  15 MR. MACKENZIE:  16 Q   You understood me to be asking that question?  17 A   Yes.  18 MR. MACKENZIE:  And can you agree with me that — that the  19 boundaries shown on your map, Exhibit 428, are  20 different from Peter Turley's map, which is attached  21 to his interrogatory, which is Exhibit 433?  22 MR. ADAMS:  My lord, if the witness is going to be asked to  23 compare boundaries on maps, perhaps he could have both  24 maps in front of him.  25 THE COURT:  If he needs them, yes, if he needs them.  26 MR. ADAMS:  Well, my friend's question is assuming perfect  27 recall of a map, which I don't even know whether it  28 was shown to the witness yesterday, but it certainly  29 hasn't been shown today and isn't in front of him now.  30 MR. MACKENZIE:  31 Q   Okay.  Do you know from your own knowledge that the --  32 the southern boundary on Exhibit 428 is different from  33 the southern boundary that Peter Turley gave in his  34 first map with his interrogatory?  35 A   I haven't seen Peter Turley's map.  36 Q   You don't know anything about that boundary, do you?  37 A   No.  38 Q   But as far as you're concerned, the boundaries have  39 remained the same for your lifetime and long before  40 the arrival of the European people; is that correct?  41 A   Yes.  42 Q   But that's what you believe.  But you really can't  43 testify from your own knowledge about the southern  44 boundary of the Price Creek territory, can you?  45 A   No.  46 Q   Now, you'll agree with me also that the Kitwanga  47 Indian Reserve Number 1 crosses the river and also is 5759  Cross-exam by Mr. Mackenzie  1  2  3  4  5  6  7 MR.  8 MR.  9  10  11  12  13  14  15  16  17  18  19  20  21 MR.  22  23  24  25  2 6 THE  2 7 MR.  28  2 9 THE  3 0 MR.  31 THE  32  33 THE  34 MR.  35  36 THE  37 MR.  38  39  4 0 THE  41  42 MR.  43  44  4 5 MR.  46  47  located partly in this territory, Price Creek?  A   I got lost again.  Q   Yes.  This territory we're looking at, Exhibit 28,  also includes part of the Kitwanga Indian Reserve  Number 1?  A   Yes.  ADAMS:  428, isn't it?  MACKENZIE:  Q   428, yes.  And, of course, Highway 16 runs through the  northern part of that Price Creek territory, doesn't  it?  A   Yes.  Q   Now, the registered trapline in this territory is  608T047, and that's registered in the name of Pauline  Morgan.  Now, Pauline Morgan, do you know her?  Yes.  not on your genealogy, is she?  A  Q  A  Q  A  She's  No.  She's  No.  not in the eagle clan, is she?  MACKENZIE:  It's — I made a mistake in the number.  It's  609T047.  The registration for that trapline dated  February 24, 1959 is one of the documents admitted in  this case, my lord, so I would request that that be  submitted as the next exhibit.  COURT:  Do you have it?  MACKENZIE:  Yes.  I have a copy of it here, my lord.  I'll  have an original brought in at the break.  COURT:  All right.  MACKENZIE:  I only then have a photocopy from Canada's file.  COURT:  If it's admitted, it can be marked as the  chronological number now.  What number is it?  REGISTRAR:  Next number will be 440, my lord.  MACKENZIE:  It's an application for registration of a  trapline.  COURT:  In the name of Pauline Morgan.  MACKENZIE:  And it's signed by Allen P. Johnson and Mrs.  J-o-h-n-s-o-n.  And it's dated  Pauline Morgan.  That's  February 24, 1959.  COURT:  So it's in two names, Pauline Morgan and Allen  Johnson?  MACKENZIE:  Yes, my lord.  (EXHIBIT 440:  Application for registration of  trapline dated February 24, 1959)  MACKENZIE:  The exhibit I've handed up is a photocopy of the  front page and the reverse of that application.  I beg  your pardon.  It doesn't seem to be there.  We just 5760  Cross-exam by Mr. Mackenzie  1 have in this collection the front page of that  2 application.  3 MR. MACAULAY:  If that's one of our documents, my lord, we have  4 the back copy of it.  We'll produce it as soon as we  5 can.  6 THE COURT:  I don't think it is one of your documents.  7 MR. MACKENZIE:  Yes.  It's from Canada's documents.  8 THE COURT:  I thought it was trapline registration.  9 MR. MACKENZIE:  It is, but the Indian Affairs' trapline files  10 often have -- it's like Chargex.  You have a green  11 copy for this person and a yellow copy for that.  12 THE COURT:  I see.  13 MR. MACAULAY:  And that's how the trapline registrations work  14 too, as I understand it.  We have in a sense an  15 original sometimes --  16 THE COURT:  I see.  17 MR. MACAULAY:  — often.  18 THE COURT:  All right.  19 MR. MACKENZIE:  It's from Canada's Document 4599.  So, my lord,  20 we'll make arrangements to get a good copy of that to  21 Madam Registrar.  22 THE COURT:  Thank you.  23 MR. ADAMS:  I'm sorry.  What was the exhibit number assigned?  24 THE REGISTRAR:  440.  2 5 MR. ADAMS:  Thank you.  JZIE:  Now, there's another trapline on that territory.  It's  0609T057, talking about the Price Creek territory, and  it's in the name of Thomas Harris and Company.  Now,  you know Thomas Harris?  Yes.  And he's a member of the wolf clan?  As far as I know he was a member of the eagle clan.  I  didn't know he was a member of a wolf clan.  Does his name appear in your genealogy?  I believe so.  Okay.  And he lives in Kitwanga?  Yes.  Can you agree with me that for many years, at least  since 1939, that trapline has been trapped by members  of the frog clan before Thomas Harris?  No.  I wasn't aware of that.  Do you know his wife, Victoria Harris?  I don't know his -- I don't know her white man's name;  just know her by her other name, Indian name.  Okay.  I'm going to suggest to you that Victoria  Harris was a member of the frog clan, and her name  2 6 MR.  MAC]  27  Q  28  29  30  31  A  32  Q  33  A  34  35  Q  36  A  37  Q  38  A  39  Q  40  41  42  A  43  Q  44  A  45  46  Q  47 5761  Cross-exam by Mr. Mackenzie  1 doesn't appear in your genealogy.  Can you agree with  2 that?  3 A   Yes.  4 Q   I'm also going to suggest to you that Thomas Harris  5 doesn't appear on your genealogy.  Okay.  Now, Thomas  6 Harris' name appears on page 12 of the genealogy which  7 is at Tab 13 in the white book.  And I'm showing that  8 to you here.  You can agree with that?  See that  9 there?  10 A   Yes.  11 Q   And that's the page that we know was omitted from the  12 Exhibit 425.  Do you remember that?  13 A   Yes.  14 Q   So it's not -- his name is not on the genealogy,  15 Exhibit 425, is it?  16 A   You better look through that.  17 Q   Well, you agreed with me earlier that page 12 was  18 omitted from the Exhibit 425.  Do you remember that?  19 A   Yes.  Yes.  20 Q   So can you agree with me, therefore, that Thomas  21 Harris does not appear in your genealogy, Exhibit 425?  22 A   Yes.  23 Q   Now, just before we got onto that topic, I just wanted  24 to ask you, were you aware that the frog clan people,  25 Wallace Laknits and Victoria Harris, his daughter,  26 were trapping that line before Tom Harris?  27 A   No.  I wasn't aware of that.  28 THE COURT:  L-a-c-k-n-i-t-s?  29 MR. MACKENZIE:  Wallace Laknits has various spellings in the  30 trapline documents, my lord, but one spelling is  31 L-a-k-n-i-t-s.  32 THE COURT:  Thank you.  33 MR. MACKENZIE:  34 Q   I want to move on quickly to the Ritchie territory,  35 which is Territory Y shown on Exhibit 429.  Now, this  36 is the area that you say is owned by Sakum Higookw,  37 isn't it?  38 A   Yes.  39 Q   And you said that your family used to fish at Ritchie,  40 correct?  41 A   Yes.  42 Q   Used to be a fishing site there?  43 A   Yes.  44 Q   And you left that when you were 15 and moved across  45 the river, right?  46 A   Yes.  47 Q   You haven't been back to Ritchie for the fishing site 5762  Cross-exam by Mr. Mackenzie  1 since that time, have you?  2 A   I've been in and out of there, but I haven't been  3 staying there like I used to.  4 Q   There's no road down to Ritchie, is there?  5 A   No.  6 Q   And can you agree with me that on your interrogatory  7 you didn't show any territory owned by Sakum Higookw  8 west of the Skeena River at Ritchie?  9 A   No.  I guess not.  10 Q   The only area you showed was the Gwax Tseelixit, which  11 was Area Z on Exhibit 429, correct?  12 A   Yes.  13 MR. MACKENZIE:  And I'll just ask you some questions about  14 what's happening in that territory now.  Is there some  15 private lots on that territory, private properties?  16 THE COURT:  Is that on the west side of the river?  17 MR. MACKENZIE:  18 Q   Yes, my lord.  Map Y on the west side of Ritchie.  19 Some farms there?  20 A   Yes.  21 Q   And the railway, of course, goes through there,  22 doesn't it?  23 A   Yes.  24 Q   Is there a station still at Ritchie?  25 A   Yes.  A small little -- looks like about 12 by 12.  26 Q   Okay.  The person who has the registered trapline  27 there is -- is trapline 615T013, and his name appears  28 to be Rudy Hirshe, H-i-r-s-h-e, from Terrace.  Do you  2 9 know him?  30 A   No.  31 Q   And before him there was another gentleman, Serge,  32 S-e-r-g-e, Drouin, D-r-o-u-i-n.  Do you know him?  33 A   No.  34 Q   Do you know if they're white people?  I'm sorry.  You  35 don't know who they are?  Well, the person who had the  36 line from 1943 was Tom Thompson.  And you know him,  37 don't you?  38 A   Yes.  39 Q   Yes.  He's a farmer at Cedarvale, isn't he?  40 A   Yes.  41 Q   And did you know he had a trapline down in the Ritchie  42 territory?  43 A   No.  44 Q   So I take it you'll agree with me that you're not  45 really familiar with any trapping activities in that  46 territory?  47 A   No. 5763  Cross-exam by Mr. Mackenzie  I didn't phrase the question very well.  But you don't  know about the territories?  You don't know about the  trapping in that territory?  No.  Not until after David was deceased.  You're talking about David Wells now?  Yes.  And you're saying that you were aware that  something -- you were aware of some of the activity  before David passed away?  Yes.  And now you're speaking about David Wells' trapline,  aren't you?  Yes.  Which he handed on to his daughter, Doris Morrison,  correct?  That's what I heard, yes.  And we've discussed that and I'll be getting to that  when we talk about the next territory down.  Now,  you're not aware of how far back these -- to the west  the territorial boundaries go in this Ritchie  territory, are you?  No, I wasn't.  :  When you say that you left this fishing of this  territory at age 15 and crossed the river, did you go  25 from -- from Z to Y or from Y to Z?  26 THE WITNESS:  From Y to Z.  27 MR. MACKENZIE:  You went over to Z because there was good access from  the highway, correct?  Yes.  Was it also because that was already an Indian  reserve?  Yes.  I didn't know that it was an Indian reserve  until recently, but we moved across because it was  easier for us.  And just talking about that, is it -- we mentioned  other reserves in our questions.  Do you want to  abolish that reserve as well?  Yes.  We're talking about Area Z, my lord.  So is it fair to say -- I take it from your answer  it's fair to say that you don't use the territory  behind or west of Ritchie for trapping, certainly?  No.  And you don't -- you also don't use it for fishing  these days?  There's a good fishing spot on the west side of the  1  Q  2  3  4  A  5  Q  6  A  7  Q  8  9  10  A  11  Q  12  13  A  14  Q  15  16  A  17  Q  18  19  20  21  22  A  23 THE  COURT  24  28  Q  29  30  A  31  Q  32  33  A  34  35  36  Q  37  38  39  A  40  Q  41  42  43  44  A  45  Q  46  47  A 5764  Cross-exam by Mr. Mackenzie  1 highway.  They use the boat across.  That's where we  2 have our net most of the time.  3 Q   Across from Area Z?  4 A   Yes.  5 Q   Now, I just wanted to ask you very briefly.  You said  6 that Area Z is already an Indian reserve, correct?  7 A   Yes.  8 Q   And you can fish for food there any time you want as  9 long as you comply with the Fisheries Act regulations,  10 correct?  11 A   Yes.  12 Q   And going on to Fiddler Creek, which is Territory T,  13 Map T, that's Exhibit 430, in your testimony you said  14 that that's a Sakum Higookw territory, didn't you?  15 A   Yes.  16 Q   And you also said on your examination for discovery  17 that you look after that territory, didn't you?  18 A   Yes.  19 Q   When you gave your interrogatory map, that's the  20 territory that you said was your territory, wasn't it?  21 A   Yes.  22 Q   But in fact you'll agree with me now it's Allen  23 Johnson's territory, isn't it?  24 A   That is when we come into the Court, it's like going  25 onto the battle field and we have to combine together  26 to -- into one.  That's why my name appears in all of  27 the maps.  2 8 Q   And you don't have any idea how far west the  29 boundaries of that territory go, do you?  30 A   No.  Just -- I was there when I was fairly small and I  31 don't know how far it goes.  I'm still learning as I  32 go along.  33 MR. MACKENZIE:  And you also are not familiar with the — the  34 location shown on Exhibit 430, Winna, W-i-n-n-a,  35 Wedda, W-e-d-d-a, on Exhibit 430.  That's the second  36 name on the legend.  You've never been there, have  37 you?  38 MR. ADAMS:  That's two questions.  One was are you familiar and  39 one was have you been there.  40 MR. MACKENZIE:  41 Q   Sorry.  You don't know about that, do you?  42 A   I -- my memory's very vague.  I don't know how far in  43 we went when we went up to see the beaver dam.  44 Q   You can't recall whether you were ever at that  45 location?  46 A   I was around the vicinity, but I don't know if I went  4 7 up to Wina Wadda. 5765  Cross-exam by Mr. Mackenzie  1 Q   You were about eight years old when you were last in  2 that territory, correct?  3 A   Yes.  4 THE COURT:  It's a mountain, is it, or is it a stream?  5 MR. MACKENZIE:  It doesn't appear from the — it doesn't appear  6 directly from the map, my lord.  7 THE COURT:  Wina Wadda?  8 THE WITNESS:  Wina Wadda.  9 THE COURT:  Is it a mountain or a stream?  10 THE WITNESS:  It's a stream.  11 MR. MACKENZIE:  12 Q   The meaning of that word is where two streams meet; is  13 that correct?  14 A   Yes.  15 Q   So that name really describes a location that could be  16 on any territory where two streams meet, correct?  Do  17 you agree with me?  18 A   Yes.  19 Q   I'm going to read some questions from your examination  20 for discovery.  Question 460:  21  22  23 Q   "So now that you know where it is". . .  24  25 My lord, perhaps to get the context, I should start at  26 question 454.  27  28  29 Q   "I have a few questions arising out of  30 the interrogatories.  For convenience  31 let us look at a map for a second.  32 There is a place on this map.  33 (indicating)  We are now --  34 MR. PLANT:  Which is Schedule C —  35 MR. RUSH.  Yes.  36 MR. PLANT:  — to the interrogatories,  37 marked Exhibit 1.  38 Q   And approximately in the geographic  39 centre, very proximately in the  40 geographic centre of the territory of  41 Sakum Higookw, there is a place  42 identified with an asterisk.  Could you  43 pronounce the word that appears there?  44 (indicating)  4 5 A   No."  46  47 Question 457: 5766  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  A  27  Q  28  A  29  Q  30  A  31  Q  32  33  A  34  Q  35  A  36  Q  37  A  38  Q  39  A  40  Q  41  A  42  Q  43  44  A  45  Q  46  47  Cross-exam by Mr. Mackenzie  Q   "Wina Wadda?  A   Yeah.  Q   Is that word familiar to you?  A   Not to me, no.  Q   Is that place familiar to you?  That is  to say a place which is considerably  below several miles anywhere -- anyway  upstream on the creek identified as  Luu miin sugwin, L-u-u, new word,  m-i-i-n, new word, s-u-g-w-i-n, or  something to that effect?  A   Luu miin sugwin, that's the same name.  That is pretty close to the start of  that creek.  (indicating)  Q   So now that you know where it is  approximately, are you able to tell me  what that might be?  (indicating)  A   Could be a camp, hunting camp.  Q   But you do not know?  A   No."  Were you asked those questions?  Yes.  Did you give those answers?  Yes.  Were those answers true?  Yes.  Do you know about mineral exploration in that  territory?  No.  I don't know.  Any old mines up there you know about?  No.  That's where Doris Morrison's trapline is, isn't it?  I believe so, yes.  It's north of Fiddler Creek, isn't it?  Yes.  It goes up to Lome Creek; do you know that?  I don't know how far it goes up to.  Do you remember David Wells' trapline went up north of  Fiddler Creek up to Lome Creek?  Yes.  The trapline number is 615T008.  It's registered in  the name of Doris Morrison and company.  Now, you've  spoken about David Wells, and you obtained information 5767  Cross-exam by Mr. Mackenzie  1 from him about the territories, didn't you?  2 A   Yes.  3 Q   Now, are you also aware of the dispute between him and  4 the other members of the eagle clan when he registered  5 the trapline in his own name?  6 A   No.  I wasn't aware of it.  7 Q   Okay.  I'm instructed that this dispute continued from  8 the time David Wells registered the trapline right  9 through to the 1940's, and the other members of the  10 eagle clan opposed David Wells' ownership of that  11 trapline.  Do you know anything about that?  12 A   No.  13 Q   Now, you know that David Wells passed the trapline on  14 to his daughter as a wedding gift in 1949?  15 A   No.  I wasn't aware of it.  16 Q   And you don't know anything about current trapping  17 activity on that line?  18 A   No.  19 MR. MACKENZIE:  We have an admitted document relating to that  20 trapline.  It's an application for cancellation of  21 registered trapline.  That apparently is the -- I'll  22 just describe that document:  Application for  23 cancellation of registered trapline, signature in the  24 name of David Wells dated May 31, 1949.  And this is  25 from Canada's documents number 4603, Doris Morrison  26 File.  And, my lord, I submit that as the next exhibit  27 with a note that we'll arrange with Canada to get a  28 clear copy from their files of that document.  29 THE COURT:  All right.  Exhibit 441.  30 THE REGISTRAR:  441.  31 (EXHIBIT 441:  Application for cancellation of  32 registered trapline dated May 31, 1949)  33 THE COURT:  Can I be assisted, please?  Looking at this map,  34 Exhibit T, can counsel point out Fiddler Creek to me,  35 please?  36 MR. MACKENZIE:  It should go right through the centre of that  37 territory, my lord.  38 THE COURT:  Is it where the arrow is pointed to?  39 MR. MACKENZIE:  Yes, my lord, the lower arrow.  4 0 THE COURT:  Xsu Cwin K'aat.  41 MR. MACKENZIE:  That's correct.  That's Fiddler Creek.  And it  42 flows right down into the southwest portion of that  43 territory.  44 THE COURT:  All right.  Yes.  I have it.  45 MR. MACKENZIE:  Did your lordship get the location of Lome  46 Creek?  47 THE COURT:  Yes.  I see it. 576?  Cross-exam by Mr. Mackenzie  1 MR. MACKENZIE:  L-o-r-n-e.  2 THE COURT:  It's a little easier to see.  Thank you.  3 MR. MACKENZIE:  And the other trapline in that area — I saw  4 your lordship had the trapline overlay which was in  5 the binder pocket.  It's a useful aide-memoire to show  6 generally where these traplines are related to the  7 territories.  Does your lordship recall from other  8 witnesses?  This is an aide-memoire which is composed  9 of Exhibit 24A for identification and Exhibit 5 for  10 identification, and so there's some difference, of  11 course, between Exhibit 5 and the maps.  They're  12 actually put in evidence by the witnesses.  Your  13 lordship can get a general idea of where these  14 traplines go, and we're now speaking about the area in  15 the southwest on this excerpt from Exhibit 5 labelled  16 Sakum Higookw just down the southwest --  17 THE COURT:  Yes.  I see it, that one which is 0609T047.  18 MR. MACKENZIE:  That's over in this.  That also — that shows in  19 the Price Creek territory.  20 THE COURT:  Price Creek territory.  21 MR. MACKENZIE:  Yes.  And can your lordship see that up the  22 river?  23 THE COURT:  Well, I hadn't found the river on this map.  24 MR. MACKENZIE:  You won't see the river exactly, but all the  25 boundaries seem to follow the river, my lord.  2 6 THE COURT:  Yes.  27 MR. MACKENZIE:  If your lordship is looking for that 047  28 trapline, if your lordship would go up to the --  29 THE COURT:  To the next black line will be the river, will it?  30 MR. MACKENZIE:  Yes.  Generally speaking, if your lordship will  31 go up to the centre of that Exhibit 5 excerpt, you'll  32 see a large Sakum Higookw, Simadiiks territory.  33 That's Gitwangak.  34 THE COURT:  That's north of the river.  35 MR. MACKENZIE:  36 Q   And, finally, the other trapline in that area is  37 615T004.  It is apparently owned now by Mr. Michael  38 Scott of Terrace.  Do you know him?  39 A   No.  40 Q   And before that it was owned by Mr. Rema, R-e-m-a.  Do  41 you know him?  42 A   No.  43 Q   And before that by Ruth Hayward, H-a-y-w-a-r-d, from  44 Kitwanga.  Do you know her?  45 A   No.  46 Q   Now, you said -- just changing the subject briefly,  47 you said that you were a member of the tribal council? 5769  1  A  2  Q  3  4  A  5  Q  6  7  A  8  Q  9  10  A  11  Q  12  A  13  Q  14  15  16  A  17  Q  18  A  19  Q  20  21  22  23  A  24  Q  25  26  27  A  28  Q  29  30  31  32  A  33  Q  34  35  36  37  A  38  Q  39  40  A  41  Q  42  43  A  44  Q  45  46  47  Cross-exam by Mr. Mackenzie  As a hereditary chief, yes.  You -- what you mean by that is that you're a member  of the Tribal Council Association; is that correct?  Yes.  You've never been a director of the tribal council,  have you?  What do you mean by "a director"?  You've never been a member of the board of directors  of the Gitksan-Wet'suwet'en Tribal Council --  No.  -- Association?  No.  Did you attend the 1980 convention of the  Gitksan-Carrier Tribal Council Association in  Hazelton?  Yes.  That was a -- you recall being there?  Yes.  For one day, I guess.  And you recall that at that meeting the hereditary  chiefs expressed their concerns that they were not  being heard in the policy making on the tribal  council?  Yes.  And you recall at that time the hereditary chiefs  expressed their concerns and they wanted a larger  voice in tribal council affairs?  Yes.  Now, can you agree with me that at that meeting there  was a resolution passed saying that the hereditary  chiefs would thenceforth have a larger voice in the  tribal council activities?  Yes.  Now, Mr. Smith, I'm instructed that in 1978 the people  at the Kitwanga Band Council decided to break away  from the Gitksan-Carrier Tribal Council.  Are you  aware of that?  Yes.  Yes.  You were a Gitksan -- a Gitwangak hereditary  chief at that time, weren't you?  Yes.  And the band council wanted to pursue its land claim  settlement on a unilateral basis; do you recall that?  Yes.  And the representatives of the Kitwanga Band Council  made arrangements to meet with the federal government  and the opposite native claims in Vancouver in June  16 -- I'm sorry -- in June of that year, 1978.  Do you 5770  1  2  A  3  Q  4  A  5  Q  6  7  A  8  Q  9  10  11  A  12  Q  13  A  14  Q  15  16  A  17  Q  18  19  20  A  21  Q  22  A  23  Q  24  A  25  Q  26  A  27  Q  28  A  29  Q  30  31  32  A  33  Q  34  35  36  A  37  Q  38  39  A  40  Q  41  42  43  A  44  Q  45  46  47  A  Cross-exam by Mr. Mackenzie  recall that?  Yes.  And did that meeting take place?  I wasn't there.  I don't know if it did or not.  And as a hereditary chief you were directing the band  council in those decisions?  Yes.  Yes.  And you were directing the band council in its  discussions and negotiations with the federal  government at that time?  Yes.  You were talking about the Kitwanga Band Council?  Yes.  I take it that eventually the Gitwangak Band Council  did not follow that course of action?  No.  And was it the -- was the band council intending to  submit -- or was the proposal to submit a land claim  for the eagle clan territories?  Yes.  Any other territories?  The frog, Ganada territory.  Frog territory?  Yes.  And the wolf.  And the wolf territory?  Yes.  Related to the Gitwangak?  Yes.  Now, you've spoken about your duties as the chief  counsellor at Kitwancool in your testimony, haven't  you?  Yes.  And you've also spoken about the charge that was  brought against you in 1978 for an offence under the  Wildlife Act, correct?  Yes.  And after that date you became very familiar with the  provisions of the Wildlife Act, didn't you?  Yes.  And you were particularly familiar with the provisions  relating to the issuance of sustenance permits,  weren't you?  Yes.  And you were familiar with the -- because of that you  were familiar generally with the hunting seasons under  the Wildlife Act?  Yes. 5771  Cross-exam by Mr. Mackenzie  1 Q   You were also a hunter, weren't you?  2 A   Yes.  3 Q   And you hunted since you were a boy?  4 A   Yes.  5 Q   And you hunt moose?  6 A   Yes.  7 Q   Generally you do your hunting of moose in the  8 Kitwancool territories?  9 A   Yes.  10 Q   And as chief counsellor of Kitwancool Band Council you  11 have recommended on several occasions that the Fish  12 and Wildlife Branch issue sustenance permits to  13 Kitwancool band members, haven't you?  14 A   Yes.  15 Q   And just to refer you briefly to the document at Tab  16 11, that's your signature on that document at Tab 11?  17 A   Yes.  18 Q   And that's a letter dated January 18, 1980.  As a  19 Gitwangak hereditary chief, you're aware that similar  20 letters are issued by the Gitwangak Band Council?  21 A   Yes.  22 Q   And that members of the Gitwangak Band also receive  23 sustenance permits similar to that?  24 A   Yes.  25 MR. MACKENZIE:  My lord, I submit that as the next exhibit.  2 6 THE COURT:  Yes.  27 THE REGISTRAR:  Letter.  28 MR. MACKENZIE:  Letter of January 18, 1980 from Vernon Smith,  29 chief counsellor, to Fish and Wildlife.  30 THE REGISTRAR:  Exhibit 442, Tab 11 of the white book.  31 (EXHIBIT 442:  Tab 11, Letter dated January 18, 1980)  32 THE COURT:  Shall we take the morning adjournment, Mr.  33 Mackenzie?  34 MR. MACKENZIE:  Thank you, my lord.  35 THE REGISTRAR:  Order in court.  Court will recess.  36  37 (PROCEEDINGS ADJOURNED)  38  39 I hereby certify the foregoing to be  40 a true and accurate transcript of the  41 proceedings transcribed to the best  42 of my skill and ability.  43  44  45  46 Kathie Tanaka, Official Reporter  47 UNITED REPORTING SERVICE LTD. 5772  Cross-exam by Mr. Mackenzie  1  2  3  4  5  6  7  8 THE  9 THE  10 MR.  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  THE  THE  MR.  (PROCEEDINGS RESUMED PURSUANT TO MORNING RECESS)  REGISTRAR:  Ready to proceed, my lord.  COURT:  Mr. Mackenzie.  MACKENZIE:  My lord, there are several documents related to  traplines for the territories discussed in Mr. Smith's  evidence and my proposal, and I discussed this with my  friends, is that I put those admitted documents  together in a package, have them agree that those are  the documents, they are agreed, and hand it to Madam  Registrar to be marked as an exhibit tomorrow.  COURT:  All right.  MACKENZIE:  With sub numbers relating to each documents and  we will have a list, a table of contents so that Madam  Registrar will follow that.  COURT:  All right.  Is it convenient to give them an exhibit  number now so we will keep in chronological order?  MACKENZIE:  I would submit, subject to my friends' comments,  the next exhibit be reserved, next exhibit be reserved  for those admitted documents.  REGISTRAR:  Exhibit 443.  COURT:  They can be subdivided by dash one, two, three etc.  or A, B, C, however you work it out with your learned  friends.  My lord, I may just say that we -- Mr. Mackenzie's  comments are correct.  I ask that we have an  opportunity to review them so that --  Of course.  -- before he files them I think, so the timing of  filing will be based on that.  Thank you.  MR. GRANT  COURT:  GRANT:  THE COURT  CROSS-EXAMINATION BY MR. MACKENZIE (Continued):  Q   I have some questions I wish to refer to your  examination for discovery, Mr. Smith, and putting a  copy of the examination in front of you.  Question 42,  Now, if you could follow along with this, Mr. Smith,  if I just go through these.  COURT:  Question 42?  MACKENZIE:  42, my lord.  Q   It's on page 4.  Question:  THE  MR. 5773  V. Smith (for the Plaintiffs)  Cross-exam by Mr. Mackenzie  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  3 6 MR  37  38  39  40  41  42  43  44  45  46  47  THE  A  Q  A  Q  A  Q  "Q     And how was it that your house almost  disappeared?  A     It's, oh, way back in the history when the  Lax skiik came in with -- who are invaders."  Were you asked that question?  Yes.  And did you give that answer?  Probably, yes.  Yes.  Was the answer true?  Yes.  Question 87 at page nine:  "Q  A  Q  A  Q  A  A  And how old is David Milton approximately?  Seventy; maybe a little more.  Is he -- well, what is the house that he  belongs to?  (NO ANSWER)  Without taxing your memory let me ask you  this, it may be an easier question.  Is he  an Eagle?  No.  And do you speak with him from  time-to-time to learn more of the ways of  Sakum Higookw and laws and traditions of  Sakum Higookw?  Yes. "  Were you asked those questions?  A   Yes.  Q   And did you give those answers?  A   Yes.  Q   Are the answers true?  A Yes.  COURT:  Is he alive?  A Yes.  MACKENZIE:  Q   Question 131:  "Q Does the house of Sakum Higookw have an  adaawk?  A Adaawk.  Q Adaawk?  A I believe it has.  Q Do you know it?  A Just a little.  Q And have you ever told it at a Feast?  A No, no." 5774  V. Smith (for the Plaintiffs)  Cross-exam by Mr. Mackenzie  1  2 THE COURT:  "Have you ever heard it told at a Feast."  3 MR. MACKENZIE:  I beg your pardon, my lord.  Well, my lord,  4 question 134 is:  5  6 "Q     And have you ever told it at a Feast?  7 A No, no.  8 Q Have you ever heard it told at a Feast?  9 A No."  10  11 Does your lordship have that reference?  12 THE COURT:  Yes.  13 MR. MACKENZIE:  Were you asked those questions?  Yes.  And did you give those answers?  Yes.  Were the answers true?  Yes.  Question 168:  "Q     It is not that important to have the date."  And here you are speaking about a meeting that you had  had previously, aren't you?  Yes.  And Mr. Rush:  "I could not remember the date anyway.  A     I met with Stuart and Katie and Glen  Williams in the band office and they want  some clarification on the, some of the parts  on the map.  And I told Calvin -- "  That's Calvin Hyzims, correct?  Yes.  "      -- to see, get ahold of David Milton, in  which case he did, and on finally, finally  had a meeting last night in the Kitwangak  office in regards to, in regards to the map  that we showed him."  And you were dealing with your interrogatories map  there, weren't you?  Yes.  14  Q  15  A  16  Q  17  A  18  Q  19  A  20  Q  21  22  23  24  25  26  A  27  Q  28  29  30  31  32  33  34  35  36  A  37  Q  38  39  40  41  42  43  44  45  46  47  A 5775  1  Q  2  3  A  4  Q  5  A  6  Q  7  A  8  Q  9  10  11  12  13  14  15  16  17  18  19  20  21  22  A  23  Q  24  A  25  Q  26  A  27  Q  28  29  30  31  32  33  34  35  A  36  Q  37  38  39  40  41  42  A  43  Q  44  A  45  Q  46  A  47  Q  V. Smith (for the Plaintiffs)  Cross-exam by Mr. Mackenzie  That's Exhibit 436 at the trial.  Were you asked those  questions?  Yes.  Did you give those answers?  Yes.  And was the answer true?  Yes.  Question 173:  "Q And Glen Williams is the chief of the  Gitwangak band?  A Chief counsellor.  Q Chief counsellor?  A Yes.  Q Is he a hereditary chief?  A Kitwancool.  Q He is a hereditary chief in Kitwancool?  A Yes."  And just stopping there.  Were you asked those  questions?  Yes.  And did you give those answers?  Yes.  And were those answers true?  Yes.  Question 183:  "Q     Can you remember the last time that you  discussed the use of your house's territory  with any of the members of your house?  A     Just Calvin — "  And that's Calvin Hyzims?  Yes.  "      -- he, he goes and visits, he goes, rides  around with Lax Behlit and Andimahl."  Were you asked that question?  Yes.  Did you give that answer?  Yes.  Was the answer true?  Yes.  Question 242 and 243: 5776  V. Smith (for the Plaintiffs)  Cross-exam by Mr. Mackenzie  1  2 "Q     Now, looking at schedule (A), can you tell  3 me if -- "  4  5 Question 242, my lord.  6  7 "      -- can you tell me if any of the people on  8 schedule (A) were people that you consulted  9 prior to your decision at the meeting in  10 Gitanmaax to join that lawsuit?"  11  12 Now, pausing there, you were speaking about the list  13 of house members in your interrogatories, weren't you?  14 A   Yes.  15 Q   Schedule (A), that's Exhibit 432 at trial.  16 THE COURT:  4 32?  17 MR. MACKENZIE:  Yes, my lord.  18 THE COURT:  Thank you.  19 MR. MACKENZIE:  20 Q  21 "A     I consulted with my mother; I phoned her and  22 I told her what is happening.  23 Q     Yes, anyone else?  24 A     No, no."  25  26 Were you asked those questions?  27 A Yes.  28 Q Did you give those answers?  29 A Yes.  30 Q The answers true?  31 A Yes.  32 Q Question 289:  33  34 "Q     Now, did you participate in the preparation  35 of this map?"  36  37 And there you were discussing the map attached to  38 interrogatories, weren't you?  39 A   Yes.  40 Q   And that's Exhibit 436 in this trial.  41  42 "A     No, no, I, after it is done I looked at it  43 and it reflects what I have learnt in the  44 past.  45 Q     When was the first time that you saw it?  46 A     Last spring, last spring I think.  47 Q     Did you have conversations with people other 5777  V. Smith (for the Plaintiffs)  Cross-exam by Mr. Mackenzie  1 than lawyers concerning the preparation of  2 this map?  3 A Yes, yeah, I talked to Stanley and --  4 Q That is Stanley Williams?  5 A Yes.  6 Q Yes.  7 A And my mother.  8 Q What was the purpose of those conversations?  9 A To ask from what I, from what I remembered.  10 I told them what I remembered and my  11 grandfather told me and they said, they told  12 me not to worry about it because the other  13 chiefs will agree to what they are doing,  14 since I didn't really get a chance to go  15 around with them in later years, I was still  16 a teenager when he passed away.  17 Q Both —  18 A I mean David Wells passed away."  19  20 Were you asked those questions?  21 A   Yes.  22 Q   Did you give those answers?  23 A   Yes.  24 Q   Were the answers true?  25 A   Yes.  26 Q   Question 373 at page 49.  This is question 373 and  27 374.  Question 372 will give the context:  28  29 "Q We have identified a few other people  30 according to our evidence this morning that  31 should be on this list.  32 A Yeah."  33  34 And you're talking about the list of house members  35 which was Schedule (A) to your interrogatory, wasn't  36 it?  37 A   Yes.  38 Q   That was Exhibit 432.  39  40 "Q Would there be others based on the fact that  41 Doris Morrison is here; for example, does  42 Doris Morrison have children or nephews and  43 nieces that should be on this list?  44 A I, I don't know in regards to adoption.  I  45 don't know whether the children will be  46 included in that.  47 Q Is that because you do not know what the law 577?  V. Smith (for the Plaintiffs)  Cross-exam by Mr. Mackenzie  1 is or because you do not know what its  2 application will be in this case?  3 A Her, her dad told us that he adopted her  4 into the clan, but he never explained to us  5 what, what will become of the children."  6  7 Were you asked those questions?  8 A   Yes.  9 Q   Did you give those answers?  10 A   Yes.  11 Q   The answers true?  12 A   Yes.  13 Q   Question 449 to 453:  14  15 "Q Have you ever discussed any common boundary  16 issues with people from Kitsum Kalum?  17 A No, no, just a small piece closer to D'am  18 Xsi Tax end in just a small little area here  19 that is in question (indicating).  So,  20 it is not a major issue."  21  22 Now, what you -- just stopping there.  What you were  23 talking about was a lake in the southern part of the  24 Fiddler Creek territory, weren't you?  25 A   Yes.  26 Q   And that is map T, which is Exhibit 430.  The lake is  27 not shown very clearly on map T, but it's shown on  28 Exhibit 436, which is the map attached to your  29 interrogatories, correct?  I am just going to show  30 that to you so we know what we're speaking about.  We  31 are looking at Exhibit 436 and I am pointing out to  32 you the lake that we just referred to.  Do you see  33 that?  34 A   Yes.  35 THE COURT:  This is it?  36 A   Yes.  37 MR. MACKENZIE:  38 Q   And the white or the English name is Bonser,  39 B-o-n-s-e-r, Lake, is that correct?  40 A   Yes.  41 MR. MACKENZIE:  Does your lordship get that?  42 THE COURT:  Yes.  Thank you.  43 MR. MACKENZIE:  44 Q   Now, continuing with question 450:  45  46 "Q And have you had discussions with respect to  47 that small little area? 5779  V. Smith (for the Plaintiffs)  Cross-exam by Mr. Mackenzie  1 A     No, not directly with me.  2 Q     And do you know who has had discussions with  3 Kitsum Kalum people concerning that small  4 little area just below D'am Xsi Tax?"  5  6 That's the name we just mentioned.  7  8 "A     I think the researchers from the Tribal  9 Council have had some discussions with them.  10 That's how I know this small piece here  11 (indicating) is in question."  12  13 Now, at that reference you were pointing to the land  14 just south of the lake we've mentioned?  15 A   Yes.  16 Q   Right?  And that's in the south -- south-eastern part  17 of the territory at Fiddler Creek, correct?  18 A   Yes.  19 Q   That's territory T, Exhibit 430.  Were you asked those  20 questions?  21 A Yes.  22 Q Did you give those answers?  23 A Yes.  24 Q The answers true?  25 A Yes.  26 MR. MACKENZIE:  That completes the questions from the  27 examination for discovery, my lord, and completes my  28 cross-examination.  2 9 THE COURT:  Thank you.  Mr. Macaulay.  30  31 CROSS-EXAMINATION BY MR. MACAULAY:  Mr. Smith, the members of the Eagle Clan in Gitksan  country are to be found only at Gitwangak, is that  right?  Yes.  But there are many, many members of the Eagle Clan in  the Tsimshain nation?  Yes.  And as you understand your clan's history, the Eagles  at Gitwangak are descendants of Tsimshain who came to  settle there?  Yes.  And did they come with Chief Lagaic, one of the great  chiefs of the Eagle Clan, or one of the Chief Lagaics?  The name, I don't remember the name.  The name Lagaic doesn't mean anything to you?  No.  32  Q  33  34  35  A  36  Q  37  38  A  39  Q  40  41  42  A  43  Q  44  45  A  46  Q  47  A 5780  V. Smith (for the Plaintiffs)  Cross-exam by Mr. Macaulay  1 THE COURT:  Do you have a spelling for it?  2 MR. MACAULAY:  L-a-g-a-i-c is usually the way it's spelled.  3 Q   Had you heard that Lagaic used to come up every year  4 up the Skeena to trade with the Gitksan villages?  5 A   No, never heard.  6 Q   Had you ever heard that the Lagaic burnt most of the  7 villages except for Kitwancool in the 19th century?  8 A   No, never heard.  9 Q   When -- so far as you know when did the Eagle people  10 come to the -- into the Gitksan area?  11 A   I was never told that when they come in.  12 Q   Now, perhaps the witness can be shown Exhibit 425, my  13 lord.  That's the genealogical chart of May 2, 1988.  14 And also 431, which is the genealogical chart of  15 January 21, 1988.  And, witness, I will be asking you  16 questions about both those charts and you can have  17 them in front of you.  18 THE COURT:  Do we know what tab it is?  19 MR. MACAULAY:  Tab —  2 0 THE COURT:  I have it.  21 MR. MACAULAY:  — 13.  22 THE COURT:  Yes.  Thank you.  2 3 MR. MACAULAY:  In the white book.  24 Q   Now, let's start with the old genealogy that's 431.  25 The earlier genealogy, the January one.  Pages one to  26 six show one, a group, all of them connected by blood  27 relationships, is that right?  28 A   Yes.  29 Q   And the connection between the people shown on pages  30 one and two and the people shown on the other four  31 pages three, four, five and six is a connection  32 between Alice Bright, page one, and some unnamed  33 people on page three, is that right?  34 A   Yes.  35 Q   But -- now, do you know who on page three who Anna isl  36 A   No.  37 Q   What connection does she have with Elsie Simadiiks?  38 A  Must be her daughter, I guess.  39 Q   But it's not shown in the same way as daughters are  40 shown in the rest of the chart, is it, the broken  41 line, in other words?  42 A   No.  43 Q   And then how about moving up, what connection is Anna  44 were that lady who -- at the top of the chart on page  45 three whose name isn't recorded?  46 A   Could be her mother.  47 Q   Could be? 5781  1  A  2  Q  3  A  4  Q  5  6  7  8  9  A  10  Q  11  12  13  14  15  16  17  18  A  19  Q  20  21  A  22  Q  23  A  24  Q  25  A  26  Q  27  A  28  Q  29  30  31  A  32  Q  33  A  34  Q  35  36  A  37  Q  38  A  39  Q  40  A  41  Q  42  A  43  Q  44  45  46  A  47  Q  V. Smith (for the Plaintiffs)  Cross-exam by Mr. Macaulay  Yes.  But you don't know?  No.  So the connection between pages one and two, that is  the Alice Bright family and the descendants of Elsie  Simadiiks isn't connected through people who are --  whose identities are known, the connection isn't  through people whose names are known?  We are still lost.  We will run at it another way.  Elsie Simadiiks'  ancestors, who did you -- how did you reach these  conclusions shown on page three?  There was Elsie  Simadiiks and there is a line and there is Anna and  there is a line and then there is another symbol for a  female ancestor.  How was that developed by your clan  in the form it is now showing some kind of  relationship?  Because it's how far back we could trace the clan.  Well, what's the connection between Alice Bright and  that person who has no name?  It could be her sister.  And who told you that?  Just my own assumption.  That's your own assumption?  Yes.  And you told that to Heather Harris, did you?  Yes.  And -- all right.  That person who could be Alice  Bright's sister, how did you draw the connection  between that person and somebody named Anna?  Could be her daughter, Alice Bright's niece.  Well, it could be, but --  Yes.  -- what information have you got that led you to that  conclusion, that Anna was Alice Bright's niece?  I'm lost.  Did you ever speak to Elsie Simadiiks?  No.  No.  Is she dead?  Yes.  And when did she die?  I don't know.  Did you ever speak about this chart to Esther Brown  Milton -- says Esther Brown Milton who married Ernest  Hyzims?  I have spoken to her, yes, but he's deceased now.  You didn't speak to her about this subject? 5782  V. Smith (for the Plaintiffs)  Cross-exam by Mr. Macaulay  1 A   No.  2 MR. ADAMS:  Is it the subject of the chart or is the subject the  3 relationship to the people.  4 MR. MACAULAY:  Well —  5 MR. ADAMS:  Well, that is two questions.  6 MR. MACAULAY  I don't think it is, my lord.  It's the same  7 question.  8 THE COURT:  The witness can answer either question, is what you  9 are saying?  10 MR. MACAULAY:  Yes.  11 Q   Did Esther Brown Milton give you any information that  12 you relied on in dealing with this genealogical chart?  13 A   No.  14 Q   Now, turning to pages in the old chart, that is  15 Exhibit 431, 10 to 15.  I'm sorry.  Seven and eight.  16 Seven and eight.  The old chart seven and eight.  That  17 shows the descendants of Soloman Harris, doesn't it?  18 A   Yes.  19 Q   But in the new chart at pages 10 to 15, the new one,  20 Soloman Harris' family, descendants, are connected to  21 another group, is that right, pages on the new chart  22 10 to 15.  They are connected now to the descendants  23 of Miriam Brown?  24 A   Can you show me where you are?  25 Q   Well, you -- yes.  You got the new chart.  And page  26 ten and page eleven -- no.  That's the old one.  Here,  27 the new chart.  The new chart, page ten shows again  28 the descendants of Soloman Harris and page eleven  29 continues to show them and page 12 continues to show  30 them, but on page 13 -- no.  Page 14 there are  31 decendants of Miriam Brown who are added on to that  32 family group, isn't that right?  33 A   Yes.  34 Q   And well, what led to the adding of the — those  35 people, the descendants through Mr. and Mrs. Brown to  36 the Soloman Harris family, Miriam Brown?  What was it  37 that you found out between January and May that led  38 you to tack them onto the Soloman Harris descendants?  39 A   Soloman Harris' wife was a Lax Skiik but nobody could  40 recall her name.  41 Q   Yes.  But she would be in a different house.  Soloman  42 Harris was an Eagle, wasn't he?  43 A   No.  44 Q   He was not an Eagle?  45 A   No.  46 Q   I see.  Okay.  So that the Eagle ancestors is Soloman  47 Harris' wife? 5783  1  A  2  Q  3  4  5  6  7  8  9  10  11  12  A  13  Q  14  15  A  16  Q  17  A  18  Q  19  A  20  Q  21  A  22  Q  23  A  24  Q  25  26  2 7 MR.  MAC]  2 8 MR.  MACi  29  Q  30  31  32  A  33  Q  34  A  35  Q  36  A  37  Q  38  A  39  Q  40  41  A  42  Q  43  A  44  Q  45  46  A  47  Q  V. Smith (for the Plaintiffs)  Cross-exam by Mr. Macaulay  Yes.  Right.  Well, that shows on the old and the new chart.  That's not my question.  There is a line that goes out  there just below Soloman Harris' wife on page ten and  that line continues along the top of page eleven with  no names on it and continues along the top of page 12  with no names and it continues along the top of page  13 with no names directly connected with it.  And the  then it -- on page 14 it shows a connection with  Miriam Brown.  Now, what information led you to  connect the wife of Soloman Harris with Miriam Brown?  That's her daughter.  And what -- how did you get that information in the  last few months?  Where did you get it from?  Peter Turley was doing some research on that.  Peter Turley was?  Giila' wa, yes.  And he told you about it, did he?  Yes.  And did he show you documents?  No.  Did he tell you how he found that out?  No.  And now, on the old genealogy, you go to the old  genealogy again.  The one the witness is looking at  hasn't got numbered pages, I don't think.  JZIE:  The numbers are at the top.  LAY:  Are they at the top?  Right.  Page 12 of the old genealogy.  You have to look at the  top of them Mr. Mackenzie tells me.  Page 12, that  shows the decendants of Alexander Fowler?  Yes.  And Alexander Fowler shows Giila' wa?  Yes.  That was an important Eagle name?  Yes.  And his nephew Abraham Fowler is also Giila' wa?  Yes.  And then he adopted two boys or men, Robert Harris and  Tom Harris?  Yes.  And they were both Giila' wa?  Yes.  So that was an important lineage or family in the  Eagles, wasn't it?  Yes.  Are there any descendants today from those people 5784  V. Smith (for the Plaintiffs)  Cross-exam by Mr. Macaulay  1 shown there, the Alexander Fowler group?  2 A   I don't think so.  3 Q   Why is it that those people who were major figures in  4 the Eagles, why is it they were dropped from the  5 genealogy and the new version, that is the May 2  6 version?  7 A   I don't know.  8 Q   It wasn't at your request or on your instructions?  9 A   No.  10 Q   Heather Harris did that for reasons you don't know?  11 A   No.  Could be -- must have been misplaced.  I don't  12 know what happened.  13 Q   And then if you look at the old genealogy, another  14 family group is shown at pages nine to eleven.  Nine,  15 ten, eleven is another group of descendants of  16 Sgayeen?  17 A   Sgayeen.  18 Q   Sgayeen.  Page ten shows Sgayeen as the oldest -- the  19 ancestor of all those people of all those pages, isn't  20 it?  21 A   Yes.  22 Q   That was your mother's -- your mother had that name  23 later, much later on?  24 A   Yes.  25 Q   And that's another separate lineage in the Eagle Clan?  26 THE COURT:  I am not sure the witness knows what lineage means,  27 Mr. Macaulay.  2 8 MR. MACAULAY:  2 9 Q   Well, it's another family group with a common  30 ancestor?  31 A   Yes.  32 Q   But they are not related by blood with Alice Bright's  33 descendants or Soloman Harris' descendants, not that  34 you know of?  35 A   No.  36 Q   Or with Alexander Fowler's descendants?  37 A   No.  38 Q   Okay.  My lord, those are those same, the Sgayeen  39 family group is shown in the new chart at pages seven  40 to nine.  41 THE COURT:  Page seven and nine?  42 MR. MACKAULAY:  Yes, my lord.  4 3 THE COURT:  Thank you.  4 4 MR. MACAULAY:  45 Q   Now, the Peter Brown -- I am sorry, Miriam Brown  46 descendants.  Peter is the husband.  The Miriam Brown  47 descendants, those are the ones who were attached onto 5785  1  2  3  4  A  5  Q  6  A  7  Q  8  9  10  11  A  12  Q  13  14  A  15  Q  16  A  17  Q  18  A  19  Q  20  21  22  23  A  24 THE  COURT  25  26  A  27 THE  COURT  28  A  2 9 THE  COURT  30  A  31  32  33 THE  COURT  34  35  36  A  37 MR.  MACAU  38  Q  39  A  40  Q  41  A  42  Q  43  A  44  45  Q  46  A  47  Q  V. Smith (for the Plaintiffs)  Cross-exam by Mr. Macaulay  Soloman Harris family.  On the old genealogy they were  shown as a separate group, weren't they, without  connections with other families?  I got to see the chart first.  It's -- okay.  The old chart pages 12 and 13.  Which one is the old chart?  This is the old.  On page 12 you have the Alexander  Fowler group in the left-hand corner and then the rest  of page 12 and page 13 show the Miriam Brown  descendants, is that right?  Yes.  And then at page 16 of the new one you have another  separate family descendant from Andrew Derrick?  Yes.  But they didn't show on the old chart?  No.  Now, when did you find out about them?  We just overlooked them.  And they are a separate group; they are a  self-contained unit in the sense that they haven't got  any blood relationship that you know of with other  Eagle families?  Yes.  :  Well, I have some trouble with that.  Pearl Derrick  must have been an Eagle?  Yes.  :  So her mother must have been an Eagle?  Yes.  :  Why is her mother not shown on the genealogy?  She is from -- I think from what I understand she's  from Port Simpson and was adopted into our clan when  she arrived in Kitwanga.  :  Do you think that Pearl Derrick was, as she became  when she was married was adopted into the Gitwangak  Eagle Clan?  Yes.  uAY:  Were you at the Feast --  No.  -- when she was adopted?  No.  When was the Feast held when she was adopted?  I wasn't -- I don't think I was born yet.  Well, maybe  I was, but I was too young to remember.  And she was an Eagle from the coast?  Yes.  And the result is that her descendants are members of 5786  1  2  A  3  Q  4  5  A  6  Q  7  8  THE  COURT  9  MR.  MACAU  10  Q  11  A  12  Q  13  A  14  Q  15  16  17  18  A  19  Q  20  21  A  22  Q  23  24  A  25  Q  26  27  A  28  Q  29  30  31  A  32  Q  33  34  A  35  Q  36  A  37  THE  COURT  38  39  A  40  THE  COURT  41  A  42  THE  COURT  43  A  44  MR.  MACAU  45  Q  46  A  47  THE  COURT  V. Smith (for the Plaintiffs)  Cross-exam by Mr. Macaulay  the Eagle Clan?  Yes.  And they are entitled to all the rights and privileges  that Eagles have that Gitwangak Eagles have?  Yes.  I notice that Sonny Derrick -- I am still on page 16,  the Pearl Derrick descendants, my lord.  :  Yes.  uAY:  Sonny Derrick has an Eagle name?  Yes.  Is that a chief's name?  Not the chief's name, no.  Now, on the -- on page one of the new chart, Jimmy  Tait who you mentioned often is shown without any  connection with the Alice Bright family, is that  right?  Yes.  You don't know what, if any, blood relationship he has  with any other Eagle, is that right?  No.  And at page 13 of the new chart George Moore is shown,  is that right?  Yes.  And he has one of the important names in the Eagle  house?  Yes.  Clan, I mean.  Yes.  But you don't know what, if any,  blood relationship he has with any other Gitwangak  Eagle?  No.  Now, Jimmy Tait and George Moore were very important  men in Gitwangak, weren't they?  George Moore was, yes.  George Moore was?  Yes.  :  What, did George Moore die?  No, I am sorry.  He  hasn't died.  He is still alive?  No.  He's dead.  :  He's dead now?  Yes.  :  When did he die?  Around 195 0 sometime.  uAY:  Did you ever meet him?  Yes.  :  So his mother would have to be an Eagle? 5787  V. Smith (for the Plaintiffs)  Cross-exam by Mr. Macaulay  1 A   Yes.  2 THE COURT:  Did you know his mother?  3 A   No.  4 MR. MACAULAY:  5 Q   Now, Alexander Fowler, we looked at that name.  He is  6 shown as Giila' wa.  Was he also Sakum Higookw?  7 A   I don't know.  8 Q   Did he also have a name Qauk or Qauk?  9 A   Qauk.  10 Q   Qauk?  11 A   I don't know.  12 Q   Qauk was an important name in the Eagles, wasn't it?  13 A   It's a short version of Sakum Higookw.  14 THE COURT:  We had that spelling yesterday, Mr. Macaulay, but I  15 don't remember.  It's Q-u-a --  16 MR. MACAULAY:  It appears in various versions.  Q-u-a-k is one  17 that I may put to the witness.  18 Q   Now, I don't think I understood your answer.  Was that  19 an important name in the Eagles?  20 A   Yes.  21 THE COURT:  You said it was the same rank as his own name.  22 MR. ADAMS:  My lord, I understood him to say it was a short  23 version of Sakum Higookw.  24 THE COURT:  I am sorry.  25 A   Yes.  Yes.  2 6 MR. MACAULAY:  27 Q   Is that —  28 A   Yes.  29 Q   So if Abraham Fowler was Qauk, then he was Sakum  30 Higookw?  31 A   Yes.  32 Q   David Wells was Sakum Higookw?  33 A   Yes.  34 Q   And did he succeed to that name after Abraham Fowler  35 died?  36 A   Yes.  37 Q   And did he have any other name, David Wells?  38 A   Liginiihla.  3 9       Q   He had two names?  40 A   Yes.  41 Q   And they were both important names?  42 A   Yes.  43 Q   At one time there were two different houses, weren't  44 there?  Sakum Higookw and Liginiihla?  45 A   Yes.  46 MR. MACAULAY:  I think your lordship has the spelling for  47 Liginiihla. 57?  V. Smith (for the Plaintiffs)  Cross-exam by Mr. Macaulay  1 THE COURT:  I don't think so.  2 MR. MACAULAY:  It's shown on —  3 THE COURT:  I just have L-e-g-1-a-c, a one-word name.  4 MR. MACAULAY:  No.  That's Lagaic.  5 THE COURT:  Oh, that's a different one.  6 MR. MACAULAY:  Yes.  That's a different one.  It's on page one  7 of 425, the new chart.  It's shown on one of this  8 witness' name.  He's shown Sakum Higookw and also  9 Liginiihla.  10 THE COURT:  I have it, thank you.  11 MR. MACAULAY:  Now, the evidence is that those two names were  12 enjoyed by David Wells.  13 Q   At one time the family to which David Wells belonged  14 had most of the important names, didn't it?  15 A   Yes.  16 Q   It had the name Sakum Higookw?  17 A   Yes.  18 Q   And Liginiihla?  19 A   Yes.  2 0 Q   And Simadiik?  21 A   Yes.  22 Q   And Sgayeen?  23 A   Sgayeen, yes.  24 Q   And now they have none?  25 A   No.  26 Q   Now David Wells was a very important man in the Eagle  27 Clan too, was he?  28 A   Yes.  29 Q   Must have been.  Was he the leader of the Eagle Clan  30 when he was alive?  31 A   Yes.  32 Q   And there was a dispute between David Wells and George  33 Moore about a trapline, wasn't there, at Fiddler  34 Creek?  35 A   I wasn't aware of that until yesterday or today.  36 Q   You had never heard anything about?  37 A   No.  38 Q   That —  39 A   No.  40 Q   -- in the Feast or in Gitwangak or talking to your  41 relatives?  42 A   No.  43 Q   You hadn't heard that this dispute continued all  44 through the 1930s and the 1940s?  45 A   No, I never heard.  46 Q   But Wells gave his Fiddler Creek trapline to his  47 daughter? 5789  1  A  2  Q  3  A  4  Q  5  6  A  7  Q  8  A  9  Q  10  11  A  12  Q  13  A  14  15  Q  16  17  18  19  A  20  Q  21  22  A  23  Q  24  A  25  Q  26  A  27  Q  28  A  29  Q  30  A  31  Q  32  33  A  34  Q  35  A  36  Q  37  38  A  39  Q  40  A  41 MR.  MACAU  42  43 THE  COURT  4 4 MR.  ADAMS  45  46  47  V. Smith (for the Plaintiffs)  Cross-exam by Mr. Macaulay  Through the will, yes.  Through a will?  Yes.  Yes.  And his daughter is Dora Morrison or Doris  Morrison?  Doris Morrison.  Doris Morrison?  Yes.  And she is registered -- the registered holder of that  trapline now?  From what I understand, yes.  Yes.  You've seen the will?  I've seen it only once.  That was by the lawyer's  office.  We will show it to you.  I am showing the witness a  form of a will, my lord.  Do you recognize the  signature on that document?  It says David and then  there is an indecipherable name, Wells?  I don't recognize it.  No.  It's supposed to be witnessed by a Daphne Patsy.  Do you know who she is?  Yes.  Is she still alive?  Yes.  And also by Vera Whale; do you know who she is?  Yes.  Is she still alive?  I believe so.  Is this the document you saw in the lawyer's office?  Yes.  And it says, apart from the typed portion of it, "My  name is Liginiihla"?  Yes.  That's his way of spelling Liginiihla?  Yes.  And "the chieftainship of the Eagle tribe and all my  property to my daughter," you see that?  Yes.  Did Doris Morrison take the name Liginiihla?  Not through the Feast that I know of.  jAY:   Perhaps, my lord, this could be marked for  identification.  :  Mr. Adams ?  :  My lord, the only basis for this going in as far as  I understand is that the witness was shown this  document in a lawyer's office, and I am that lawyer,  in preparation.  He had never seen it before then and 5790  V. Smith (for the Plaintiffs)  Cross-exam by Mr. Macaulay  1 I understand his evidence is that he hadn't seen it  2 before that.  He doesn't recognize the signatures.  He  3 knows of the existence of the people who have names as  4 witnesses, but he wasn't asked if he could recognize  5 those signatures.  I don't see any basis for admitting  6 it as an exhibit for identification or otherwise.  7 MR. MACAULAY:  He said he has done more than that.  He has  8 already given evidence that David Wells had the name  9 Liginiihla.  He knows the witnesses who were alive.  10 THE COURT:  Are you planning to prove the will, Mr. Macaulay?  11 MR. MACAULAY:  Yes, my lord.  12 THE COURT:  Mr. Mackenzie?  13 MR. MACKENZIE:  I have no submission on this, my lord.  14 THE COURT:  Well, I think if Mr. Macaulay is planning to prove  15 the document, I think it can be marked for  16 identification, so we know what we are talking about.  17 At the most at the moment he has got it in Mr. Adams'  18 office.  That's as far as he takes it.  What number,  19 please?  20 THE REGISTRAR:  The number would be 444.  21 MR. MACAULAY:  For identification only.  22 THE REGISTRAR:  For I.D.  23 THE COURT:  It's 444.  24 THE REGISTRAR:  Yes, my lord.  25  26 (EXHIBIT 444 FOR IDENTIFICATION: Will of David Wells)  27  28 THE COURT:  Is this a convenient time to adjourn, Mr. Macaulay?  29 MR. MACAULAY:  Oh, yes.  All right.  30 THE COURT:  All right.  2 o'clock, please.  31  32 (PROCEEDINGS ADJOURNED PURSUANT TO LUNCHEON RECESS)  33  34  35 I hereby certify the foregoing to be  36 a true and accurate transcript of the  37 proceedings herein to the best of my  38 skill and ability.  39  40  41  42 Laara Yardley,  43 Official Reporter,  44 United Reporting Service Ltd.  45  46  47 5791  V. Smith (for the Plaintiffs)  Cross-exam by Mr. Macaulay  1  2  3  4  5 (PROCEEDINGS RESUMED PURSUANT TO A LUNCH ADJOURNMENT)  6 THE REGISTRAR:  Order in court.  Delgamuukw versus Her Majesty  7 the Queen at bar, my lord.  8 MR. MACAULAY:  9 Q   Now, my information is, Mr. Smith, that David Wells  10 died on February 11th, 1970.  Does that sound about  11 right?  12 A   Yes.  13 Q   My instructions are also that Doris registered the  14 trapline, that is David Wells' trapline, on Fiddler  15 Creek.  She had done that by December, 1950.  And in  16 that connection I'll show you an application.  I'm  17 showing the witness a photocopy of an application, my  18 lord, from our file 4603.  That's the front and back,  19 my lord, of the document I'm showing the witness.  And  2 0 it's on the usual government form, and it's the  21 application by Doris L. Morrison.  The date there  22 appears to be the 7th of November, '49, actually, and  23 there's a description, "Commencing on the south bank  24 of Fiddler Creek", et cetera.  Do you know why that  25 transfer would have been made to Doris Morrison in her  26 father's lifetime?  2 7 A   No.  I don't know why.  28 Q   And you don't recognize her signature, I guess, do  29 you?  30 A   No.  31 Q   We propose to prove that document, my lord, but if  32 there's any objection by my friends, I won't seek to  33 have it marked even for identification.  34 Had you heard that the trapline was given by David  35 Wells to his daughter when she married?  36 A   I have heard, yes.  37 Q   You heard that?  38 A   Yes.  39 Q   And you don't know when she married?  4 0 A   No.  41 THE COURT:  Who did you hear it from?  42 THE WITNESS:  I couldn't recall who I heard it from.  I heard it  4 3 anyway.  44 THE COURT:  Hardly evidence, is it, Mr. Macaulay?  4 5 MR. MACAULAY:  I beg your pardon?  4 6 THE COURT:  Hardly evidence.  47 MR. MACAULAY:  This is the chief who has given us a good deal of 5792  V. Smith (for plaintiffs)  Cross-exam by Mr. Macaulay  1 evidence about this family that he gathered from here  2 and there, including the genealogies.  3 THE COURT:  Well, I've been taking some of that with some  4 hesitation and self-reposed reservations.  It seems to  5 me that if it came, for example, from David Wells, it  6 could be an admission against interest and would be  7 admissible, but if it's just unidentified village  8 gossip, then it seems to me it's of no evidentiary  9 value at all.  10 MR. MACAULAY:  11 Q   Do you recognize David Wells' handwriting?  12 A   No.  13 Q   And now I'm going to show the witness another  14 document, my lord.  It's part of our file 8354.  It's  15 a -- one of these ARDA applications.  Your lordship  16 has seen these before.  Now, the witness -- this is a  17 ARDA application regarding this same trapline.  The  18 last page shows a map, and there's Fiddler Creek, and  19 this is the David Wells' trapline.  It looks like  20 that, does it?  21 A   Yes.  22 Q   It's an application for assistance made — signed by  23 Doris L. Morrison at Kitwanga, November 10th, 1985.  24 Not so long ago.  Did you know about this application?  25 A   No.  26 Q   The application -- you know Doris Morrison, do you?  27 A   Yes.  28 Q   And she says that the cabin -- her father's cabin had  29 been broken into in the application and the equipment  30 had been stolen.  Had you heard that that cabin had  31 been broken into and the trapping equipment stolen?  32 A   I heard the cabin was broken into, but I don't know  33 about the equipment.  34 Q   And —  35 A   It's usually stolen if it's broken into.  36 Q   She said also that she spent eight years as a teacher  37 of handicapped students at the Kitwanga School.  Is  38 that -- do you know that, that she has done that?  39 A   Yes.  40 Q   And that she did food ordering for restaurants in  41 northern B.C.  Do you know that she did that?  42 A   Yes.  43 Q   Do you recognize her handwriting?  44 A   No.  45 Q   And the trapline application here is made in the name  46 of Liginiihla Trapping Company.  Do you see that?  47 A   Yes. 5793  V. Smith (for plaintiffs)  Cross-exam by Mr. Macaulay  1 Q   That was one of -- that was her father's name, wasn't  2 it?  3 A   Yes.  4 Q   Doesn't she take the position that she -- she is  5 Liginiihla?  6 A   Yes.  7 Q   She does?  And does she attend the feast?  8 A  Very rarely I see her at the feast.  9 THE COURT:  I'm sorry, Mr. Macaulay.  I didn't get whether she's  10 taken the name or she's just claimed the name.  11 THE WITNESS:  I think she just claimed the name.  It's a  12 proper -- it's a common law for the father to adopt  13 the daughter into the house if he sees the -- the clan  14 weakening.  15 MR. MACAULAY:  16 Q   Did he adopt his daughter into the house?  17 A   Yes.  18 Q   Was there a feast when he adopted his daughter into  19 the house?  20 A   I wasn't at the feast if he did adopt her in the  21 feast.  22 Q   Did he tell you, that is David Wells, that he adopted  23 her into the house?  24 A   Yes.  25 Q   And she still maintains that she is Liginiihla?  26 A   Yes.  27 MR. MACAULAY:  My lord, I'm going to ask that this document be  28 marked for identification.  We propose to prove that  2 9 one.  30 THE COURT:  Well, all right.  It doesn't advance it any distance  31 at all to have it marked as an exhibit for  32 identification, but if you're proposing to prove it,  33 you may have it marked.  34 MR. MACAULAY:  Thank you.  35 THE REGISTRAR:  It will be 445 for I.D.  36 (EXHIBIT 445 FOR IDENTIFICATION:  Application for  37 assistance made November 10, 1985)  3 8 MR. MACAULAY:  39 Q   Now, I'm showing you a -- a document that you gave  40 evidence about on your examination in -- in chief, I  41 believe.  This is the -- oh, I'm sorry.  It's not your  42 examination.  It's Exhibit 345 though.  It's a seating  43 plan, my lord, of the head table at Gitwangak and  44 hosted by the Ganada Lax Seel clan, and it shows the  45 seating of the eagles to the -- as you face the  46 audience, to the left of Art Mathews Junior, who's in  47 the centre position.  You've seen that before? 5794  V. Smith (for plaintiffs)  Cross-exam by Mr. Macaulay  have you got 345, my  1 A Yes.  2 MR. MACAULAY:  And the — that shows  3 lord?  4 THE COURT:  Yes.  5 MR. MACAULAY:  6 Q That shows that Liginiihla's place is empty; is that  7 right?  That's what the document shows?  8 A Yes.  9 Q And at the feast is there a chair placed in that  10 position next to you to your left?  11 A Yes.  12 Q And it's empty?  13 A If there's hardly anybody at the feast.  If anybody  14 shows up, then it's filled in.  15 Q You mean somebody sits in that chair?  16 A Yes.  17 Q Who sits there usually?  18 A Calvin usually sits beside me, but he's way on the end  19 on this one.  20 Q Well, yes.  He's Simadiiks, isn't he?  21 A Yes.  It depends on who's doing the seating and the  22 feast, but I usually sit beside the head chief of the  23 wolf clan, who is Axti Hiikw.  24 Q That's Henry Tait?  25 A Yes.  26 Q And who sits next to you?  27 A One of the leading chiefs, whether it's D'elewlasxw,  28 Sgayeen or Simadiiks.  29 Q So either Allen Johnson or Peter Turley or Calvin  30 Hyzims sits next to you?  31 A Yes.  32 Q Now, what is Liginiihla's territory?  33 A It's —  34 Q What was Liginiihla's territory before the -- all the  35 houses joined together?  36 A It's the same as Sakum Higookw's territory.  37 Q Was it always that way?  38 A Not way in the back -- not way in the back of the  39 history.  40 Q No.  Well, a long time ago Sakum Higookw and  41 Liginiihla had separate territories?  42 A Yes.  43 Q And whose territory was Fiddler Creek a long time ago?  44 Was it Sakum Higookw or Liginiihla?  45 A Liginiihla.  46 Q Liginiihla.  And that's the territory that Doris  47 Morrison claims as her own? 5795  V. Smith (for plaintiffs)  Cross-exam by Mr. Macaulay  1 A   Yes.  2 Q   But your position is that it's yours?  3 A   Yes.  4 Q   Have you asked her or members of her family to stop  5 trapping on that territory?  6 A   No.  7 Q   Now, going back to any claim George Moore might make  8 to Fiddler Creek, his title -- what was his title,  9 George Moore?  10 A   D'elewlasxw.  11 Q   And who did he succeed to?  Who was his predecessor  12 with that name?  13 A   I don't know.  14 THE COURT:  May I have a number for that name, please?  15 MR. MACAULAY:  It's —  16 THE REGISTRAR:  I think it's 63.  17 MR. MACAULAY:  It's on that seating plan, my lord.  18 THE REGISTRAR:  63.  19 THE COURT:  Thank you.  20 MR. MACAULAY:  It's Allen Johnson at the moment.  Sometimes  21 instead of a T it's a D.  22 THE COURT:  Yes.  2 3 MR. MACAULAY:  24 Q   But that's the name.  And the evidence has been that  25 Allen Johnson has that.  That's right, is it?  Allen  26 Johnson has that name?  27 A   Yes.  2 8       Q   I think you've given evidence you didn't know that  29 George Moore claimed Fiddler Creek, but if he did, he  30 would be claiming somebody else's territory?  31 A   Yes.  32 Q   And as between him and David Wells, it would be David  33 Wells would be entitled to that territory?  34 A   Yes.  35 MR. MACAULAY:  Now, Price Creek.  I'm turning now to Price  36 Creek, my lord.  37 THE COURT:  Thank you.  38 MR. MACAULAY:  Perhaps the witness could be shown Exhibit 434.  39 That's Stanley Williams' affidavit.  And I'm going to  40 draw his attention to paragraph 165.  41 THE REGISTRAR:  It's Tab 10 of the white book, my lord.  42 THE COURT:  Thank you.  43 MR. MACAULAY:  Tab 10 of the white book.  It's more like a small  44 book than an affidavit, my lord.  45 THE COURT:  It looks like a family law case.  4 6 MR. MACAULAY:  47       Q   165.  There's that paragraph.  Page 40, my lord, 5796  1  2  3  4  A  5  Q  6  7  A  8  Q  9  A  10  Q  11  12  13  A  14  Q  15  A  16  Q  17  18  A  19  Q  20  21  A  22  Q  23  A  24  Q  25  A  26  Q  27  28  A  29  MR.  ADAMS  30  31  MR.  MACAU  32  33  34  35  36  37  38  39  MR.  ADAMS  40  MR.  MACAU  41  42  43  MR.  ADAMS  44  45  46  THE  COURT  47  MR.  ADAMS  V. Smith (for plaintiffs)  Cross-exam by Mr. Macaulay  paragraph 165.  Now, that territory described there is Price  Creek, is it, X'su gwin yookhl?  Yes.  And according to that affidavit, Stanley Williams says  that he swears that it belongs to Simadiiks?  Yes.  Do you agree with that?  Yes.  But it's registered now in the name of Allen Johnson,  isn't it, the trapline on that territory, and Pauline  Morgan?  Probably, yes.  Beg your pardon?  Yes.  Yes, it is.  And he -- his name, of course, is not  Simadiiks?  No.  He is the -- or was till you combined forces a short  time ago.  He was D'elewlasxw?  Yes.  Did you know that it was registered by Abraham Fowler?  No.  You never heard that?  No.  Well, if it was, then it would have been registered in  the name of Sakum Higookw; isn't that right?  Yes.  :  My lord, I'm not exactly sure what the question was  and what the answer yes is to.  jAY:  I'll tell you.  I asked the witness if he knew  Abraham Fowler.  The witness already gave evidence  that Abraham Fowler was Sakum Higookw, one of the  major chiefs and ancestors of the eagle.  I asked the  witness if he knew that that Price Creek trapline had  been registered -- the trapline on the Price Creek  territory had been registered by Abraham Fowler,  and --  :  And he said no.  jAY:  He said he didn't know, so then I then asked him  if it was, it would have at that point been Sakum  Higookw's territory, and he agreed it would be.  :  The question was if it was, it would have been  registered in the name of Sakum Higookw.  That's what  I have as the question.  :  Yes.  The witness agreed to it.  :  That's why I didn't understand the question, my 5797  V. Smith (for plaintiffs)  Cross-exam by Mr. Macaulay  1 lord.  2 MR. MACAULAY:  3 Q   Well, if Abraham Fowler was registered on that  4 trapline, then -- at Price Creek, then in those days  5 when he was registered on that trapline, it would have  6 been Sakum Higookw's territory; is that right?  7 A   If he was holding the name Sakum Higookw.  8 Q   If Abraham Fowler was holding that name?  9 A   Yes.  10 Q   I thought you agreed with me earlier that he was  11 holding that name?  12 A   I wasn't thinking that.  You're going too fast for me.  13 Q   Okay.  Well, I don't want to do that.  Abraham Fowler  14 once held the name Sakum Higookw?  15 A   I don't know who Abraham Fowler is.  I've got to look  16 at the genealogy.  17 MR. MACAULAY:  Page — look at the old genealogy.  That's the  18 white book.  19 THE COURT:  Yes.  Tab 13.  2 0 MR. MACAULAY:  21 Q   Tab 13.  Tab 13, page 12.  There is an Abraham Fowler  22 there, the nephew of Alexander Fowler.  23 A   That genealogy says that he's Giila'wa, not Sakum  24 Higookw.  25 Q   I know it says that.  I asked you the question when we  26 were looking at that, and I asked you whether Abraham  27 Fowler also had the title Sakum Higookw, and I thought  28 you said, yes, you had heard that, that he had the  29 title Sakum Higookw, and that David Wells was his  30 successor.  Now, if I misunderstood you, this is the  31 time to clear it up.  32 A   I couldn't recall you saying that he was Sakum  33 Higookw.  34 Q   Okay.  Well, fair enough.  Let's start it again, or  35 start it for the first time if you're right.  Abraham  36 Fowler -- was Abraham Fowler at one time in his life  37 Sakum Higookw, or Qauk?  38 A   Qauk.  I couldn't go back that far.  39 Q   You don't know whether he was or not?  4 0 A   No.  41 Q   I'm going to show the witness a letter to see if he  42 agrees.  It's a letter from our file 4572.  And I'm  43 not going to propose that it be marked.  I'm just  44 putting the contents to the witness.  This is a letter  45 from the government files.  It's addressed to a Mr.  46 Cooper in Hazelton, who was then the Indian agent.  47 It's dated September 30th, 1966, and it's signed 579?  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  A  20  Q  21  A  22  Q  23  A  24  Q  25  A  26  Q  27  A  28  Q  29  30  A  31  Q  32  33  34  35  36  A  37  Q  38  A  39  Q  40  41  A  42  43  Q  44  45  46  47  V. Smith (for plaintiffs)  Cross-exam by Mr. Macaulay  Richard Fowler.  And in it he says -- and he's talking  about the registration of trapline across Kitwanga, as  he calls it, and gives a history of that trapline.  And at the bottom of the first page he says:  "Because said trapline areas was originally  under the name of Chief Alexander Fowler,  deceased, who is the blood brother of my  father Chief Abraham Fowler, Qauk, also  deceased, my late father worked together at  all times over the whole trapline area."  And it goes on.  And then on page 2 there's again a  reference to Abraham Fowler, Qauk, and a lot of  mention of Mr. Thomas Harris and how he shouldn't be  on the trapline.  Does that recall to you anything  you've heard in the feast hall concerning Abraham  Fowler and his name?  No.  Not at all?  No.  Do you know who Richard Fowler is?  Yes.  Is he still alive?  No.  Was that Abraham Fowler's son, Richard?  I didn't get to know his father.  You mean the Richard Fowler you knew you didn't know  who his father was?  No.  Did you hear about a meeting at the feast hall of your  house or of your clan, a feast of your house or your  clan?  Did you hear of a meeting that took place in  1938 at Kitwanga concerning a dispute about the  Shandilla Lakes?  No.  Do you know where the Shandilla Lakes are?  It's in D'elewlasxw.  There are four little lakes right across from  Gitwangak?  Not right across.  It's about two -- two or three  kilometres upstream from Kitwanga.  And now the dispute -- my instructions are the dispute  had to do with the area that's shown as a trapline  here on this aide-memoire, as the province calls it.  I'm showing the witness this document.  And it's a  little trapline numbered 609T057.  There's the Skeena 5799  1  2  3  4  A  5  Q  6  7  A  8  Q  9  A  10  Q  11  12  A  13  Q  14  A  15  Q  16  17  18  A  19  Q  20  A  21  Q  22  23  A  24  25  Q  26  27  28  A  29  Q  30  31  32  A  33  Q  34  35  A  36  Q  37  38  A  39  Q  40  41  A  42  Q  43  44  45  A  46  Q  47  V. Smith (for plaintiffs)  Cross-exam by Mr. Macaulay  River just above it.  Now, you haven't heard of any  meeting of the eagles and other residents of Gitwangak  in 1938 about that, concerning it?  No.  And did you -- have you ever heard that a chief Jim  Laknits got the registration of that trapline --  No.  -- around the Shandilla Lakes?  No.  Had you heard that George Moore had a trapline south  of the Shandilla Lakes?  No.  I never heard.  You didn't know that?  No.  Now, there's a trapline.  I think you mentioned this  already.  There's a trapline registered in the name of  Pauline Morgan and Allen Johnson?  Yes.  You know where that trapline is?  I have an idea where it is, yes.  That's what I'm talking about.  You never heard that  George Moore once had that trapline?  Yes.  Allen told me that George Moore willed that  trapline to him.  Right.  Now, whose is that in -- does that go with the  name -- that trapline go with the name that Allen  Johnson has?  Yes.  So if it goes with that name, George Moore would have  been in the right area?  That was -- he had that name  before Allen Johnson?  Yes.  But if it had been registered by Abraham Fowler, that  wouldn't be the right name, would it?  I suppose so, yes.  You show him as Giila'wa on your -- Abraham Fowler you  show as Giila'wa on your genealogy?  Yes.  In those days each house, as you say, had its own  territory?  Yes.  And according to the law you couldn't shift  territories around from one house to another except in  most unusual circumstances?  Yes.  The only time a trapline was shifted from one house to  another is when compensation was being paid, say, for 5800  V. Smith (for plaintiffs)  Cross-exam by Mr. Macaulay  1 a killing or something like that?  2 A Yes.  3 Q Do you know why Pauline Morgan was registered along  4 with Allen Johnson on that trapline?  5 A George Moore claimed that she was his niece.  6 Q Yes.  And what house is she?  7 A She's in wolf clan.  8 Q Wolf clan?  9 A Yes.  10 Q Now, do you know Victoria or Maryann Harris?  It's the  11 same person apparently?  12 A It's the same person, yes.  13 Q And her father was a chief at Gitwangak?  14 A I don't know her father.  15 Q Jim Laknits or Wallace Laknits?  16 A I don't know.  17 Q That doesn't mean anything to you?  Okay.  And did you  18 know her husband, Thomas Harris?  19 A Yes.  2 0 Q And he was a trapper?  21 A Yes.  22 Q And he trapped around the Shandilla Lakes, Shandilla  23 Creek?  24 A Yes.  25 Q But that's eagle territory, isn't it?  26 A From what I understand, yes.  27 Q Yes.  And did Andrew -- did you know Andrew Derrick?  28 A The young one or the deceased one?  29 Q Well, someone old enough to write a letter to the  30 Indian agent in 1954.  Would that be the old one?  31 A The deceased one, yes.  32 Q Did you know him?  33 A Yes.  34 Q Did he ever tell you that he had tried to get onto  35 that trapline around the Shandilla Lakes?  36 A No.  37 Q Now, Maryann Harris or Victoria Harris died in, what,  38 1960?  39 A Yes.  Somewhere around there.  4 0 Q Somewhere around there?  And did you know that the  41 trapline was transferred then to Tom Harris?  42 A When Victoria died?  43 Q Yes.  44 A They died about the same time in the car accident.  45 Q You mean they both died together?  46 A Yes.  A few days apart.  47 THE COURT:  How long? 5801  V. Smith (for plaintiffs)  Cross-exam by Mr. Macaulay  1 THE WITNESS:  A few days apart.  I don't know how long apart it  2 is.  3 MR. MACAULAY:  4 Q I see.  How about Gerald Harris?  Do you know him?  5 A Yes.  That's their —  6 Q Son?  7 A Son, yes.  8 Q Is he registered on that trapline now around the  9 Shandilla Lakes?  10 A I wouldn't know.  11 Q He may be?  12 A He may be.  13 Q But if he is, he's trapping on eagle territory, is he?  14 A Yes.  That's his privilege if -- it's a son's  15 privilege to trap on their father's land or make  16 sustenance, food sustenance on the father's land.  17 Q The father meaning Tom Harris?  18 A Yes.  19 Q But he wasn't an eagle?  20 A He was an eagle.  21 Q He was?  22 A Yes.  23 Q Oh.  He was an eagle?  24 A Yes.  It's Giila'wa.  25 Q Is that the one who was adopted?  26 A I don't know if he was adopted into an eagle or not,  27 but he was holding the Giila'wa's name.  28 Q Whose territory -- in the eagle group of families,  29 whose territory is that Shandilla Lake?  30 A When I was young, I understand it to be an eagle  31 territory, but --  32 Q But inside the eagle clan, which one of the names did  33 that territory belong to?  34 A In X'su gwin yookhl, Price Creek territory.  35 Q It belonged to the Price Creek territory?  36 A Yes.  37 Q So that would be Allen Johnson?  38 A Yes.  39 Q That's who should be there?  40 A Yes.  41 Q But you -- you don't know if Allen Johnson or any  42 member of his family or house ever trapped there?  43 A No.  Allen tried to trap last -- I think he's been  44 trapping almost every winter, but last winter he said  45 there's nothing there.  46 Q Around the Shandilla Lakes?  47 A I don't know where, but it's across Kitwanga. 5802  V. Smith (for plaintiffs)  Cross-exam by Mr. Macaulay  1 Q   I'm talking around the Shandilla Lakes, the trapline  2 around Shandilla Lakes?  3 A   I don't know where he's trapping, but he's trapping  4 across Gitwangak.  I don't know the location he's  5 trapping.  I didn't ask him.  6 Q   He's registered on a trapline that's south of the  7 Shandilla Lakes?  8 A   Yes.  9 THE COURT:  Can I have the spelling for Shandilla, please?  10 MR. MACAULAY:  I have S-h-a-n-t-i-1-l-a, my lord.  There's a  11 creek by that name and there are lakes by that name.  12 THE COURT:  Thank you.  I've heard of Chantilly Lace, not  13 Shandilla Lakes.  14 MR. MACAULAY:  My friend, Mr. Adams, says there's a D instead of  15 T on Exhibit 428.  16 THE COURT:  Thank you.  17 MR. MACAULAY:  18 Q   It's towards the north end of that area.  Are you  19 familiar with the Gitksan-Wet'suwet'en Government  20 Commission?  21 A   Yes.  22 Q   And you're active in that connection because you are  23 the chief counsellor of the Kitwancool Band?  24 A   Yes.  25 Q   And that commission is taking over D.I.A. functions?  26 A   Yes.  27 Q   So that the administration of funds and the  28 supervision of the works for which the funds are used  29 will be in the hands of the commission instead of the  30 agent at Hazelton?  31 A   Yes.  32 Q   And that's been going on for about a year, year and a  33 half?  34 A   Yes.  35 Q   What has been taken over at Kitwancool as a result of  36 that new development?  37 A   I don't understand your question.  38 Q   Well, has the commission actually done something in  39 Kitwancool?  40 A  Well, it's basically the same operation as the  41 Department of Indian affairs.  They distribute the  42 funding to each village, and we get our share as  43 Kitwancool.  44 Q   Are you on the commission, a member of the commission?  45 A   Yes.  46 Q   So you have a hand in distributing the funds?  47 A   Yes.  I have my share in distributing the funds, yes. 5803  1  Q  2  3  4  A  5  Q  6  A  7  Q  8  A  9  Q  10  A  11  Q  12  A  13  Q  14  15  A  16  Q  17  A  18  Q  19  A  20  Q  21  A  22  23  24  Q  25  A  26  Q  27  A  28  Q  29  30  A  31  32  Q  33  34  35  A  36  Q  37  38  A  39  Q  40  41  42  A  43  Q  44  45  A  46  Q  47  V. Smith (for plaintiffs)  Cross-exam by Mr. Macaulay  And then in your capacity -- what, you deliver those  funds to the bank manager, or do you have a bank  manager at Kitwancool?  Yes.  You do have one?  Yes.  That's a full-time employee, isn't it?  Yes.  And who supervises the bank manager?  The counsellors.  You're a counsellor?  Yes.  As chief counsellor do you have to sit on all the  committees of the band council?  Yes.  You're on the education committee?  Yes.  And on the public works committee?  Yes.  My portfolio is education in my council.  I see.  But we added another counsellor last month, so I'm  looking after -- I sit in all the other councils'  portfolio meetings.  You have full-time employees under your direction?  Yes.  How many for education?  About three of them.  And are there -- does the band have other full-time  employees apart from those three?  Yes.  The band manager and secretary and social  worker.  Who directs them?  The social worker, for instance.  Who directs the social worker, supervises the social  worker?  Edgar Good.  That's his portfolio, health and welfare.  He is the counsellor who has -- who is in charge of  that aspect of it, is he?  Yes.  There are no records kept by -- there weren't any  records kept until the last two or three years by the  eagle clan?  No.  Nobody sat down and made a list of everybody in the  eagle clan before this lawsuit started?  No.  And did anybody make a written record of the speeches  at the feast? 5804  1  A  2  3  Q  4  A  5  Q  6  7  8  A  9  Q  10  A  11  Q  12  A  13  Q  14  15  16  17  A  18  Q  19  20  21  22  23  A  24  Q  25  A  26  Q  27  A  28  29  Q  30  A  31  Q  32  33  A  34  Q  35  36  A  37  Q  38  A  39  Q  40  A  41  Q  42  43  A  44  Q  45  46  A  47  Q  V. Smith (for plaintiffs)  Cross-exam by Mr. Macaulay  No.  We -- we had one and everything burnt in my  trailer.  You mean you had a record of several feasts?  Yes.  I see.  A man named -- there was a record made of a  feast for Silos Inness.  Did you ever hear of Silos  Inness?  Yes.  He was from Kitwanga?  Yes.  In fact, he was a T'simshian who moved to Kitwanga?  T'simshian, yes, from Kitkatla, I believe he's from.  Well, there's an anthropologist named Adams who says  he was at that feast and made some notes, which he  printed later and your name appears.  Unless -- there  isn't another Vernon Smith in the eagles, is there?  I don't think so.  And then there's a reference to you taking a name,  although you weren't there.  You weren't present at  that feast.  You were -- do you remember that -- do  you remember that you were -- you took a name when you  were about 21 years old?  I was told by my mother, yes.  She spoke for you at the feast?  Yes.  And what name was that?  I don't know if it was Sgadaaxeek.  I think it was  Sgadaaxeek.  It wasn't a major chief's name?  I don't think so, no.  Now, you haven't had a feast yet as Chief Sakum  Higookw?  No.  Is there a particular territory that goes with that  name?  Yes.  Which one is that?  The one in Price Creek -- not Price Creek, Ritchie.  Ritchie?  Yes.  And is there a particular territory that goes with  Liginiihla?  Yes.  Price Creek.  Now, Price Creek, of course, is -- that's where Allen  Johnson is now?  Yes.  And in theory your territory then as Sakum Higookw 5805  V. Smith (for plaintiffs)  Cross-exam by Mr. Macaulay  1 would be Ritchie?  2 A   Yes.  3 Q   And who is the registered trapline holder at Ritchie?  4 A   I wouldn't know.  5 MR. MACAULAY:  My lord, I don't think I'll have anymore  6 questions for the witness, but if I could ask your  7 lordship's indulgence for the adjournment now if  8 there's going to be one.  9 THE COURT:  Yes.  All right.  10 THE REGISTRAR:  Order in court.  Court will adjourn.  11  12 (PROCEEDINGS ADJOURNED)  13  14  15 I hereby certify the foregoing to be  16 a true and accurate transcript of the  17 proceedings transcribed to the best  18 of my skill and ability.  19  20  21  22 Kathie Tanaka, Official Reporter  23 UNITED REPORTING SERVICE LTD.  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 5806  Proceedings  1  2  3  4  5  6  7 (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT)  8  9 THE REGISTRAR:  Ready to proceed, my lord.  10 THE COURT:  Mr. Macaulay.  11  12 CROSS-EXAMINATION BY MR. MACAULAY, Continued:  13 Q   When was the Feast at which Tom Harris was adopted  14 under the Eagle Clan?  15 A   I wouldn't know.  16 Q   You mentioned that he was adopted.  How did you learn  17 that?  18 A   I was told by my mother.  19 Q   Okay.  Anyone else tell you?  2 0       A   No.  21 Q   And did you have a Feast or was there a Feast at which  22 you took the name Ligiinihla?  23 A  When David Wells died, on the funeral expense.  24 Q   Didn't that name go to Mr. Mulwain?  25 A   No.  Mr. Mulwain took Sakum Higookw.  2 6       Q   At the same time?  27 A   Yes.  That same night.  28 MR. MACAULAY:  Those are my questions of this witness.  2 9 THE COURT:  Thank you.  I am sorry, Mr. Mulwain's name was?  3 0       A  Alfred.  31 THE COURT:  Alfred.  Yes.  Thank you.  Mr. Adams?  32 MR. ADAMS:  My lord, just before I start, I have advised my  33 friends over the lunch break and should advise the  34 court that the genealogy filed on the 2nd of May  35 according to my instructions was missing a page which  36 accounts for the missing group of people and I have  37 provided both of my friends with a copy of that page  38 17 from the genealogy which was --  39 THE REGISTRAR:  Exhibit 425.  Which was Exhibit 425, thank you.  So there should be a page added.  There should be a page added and I have copies of  43 that for the court and for the Registrar.  And I am  44 further advised that it is identical to the  45 configuration of the same names which shows on the  46 January 21 genealogy, which is Exhibit 431, and  47 appears on page 12 of Exhibit 431.  4 0 MR. ADAMS  41 THE COURT  42 MR. ADAMS 5807  V. Smith (for the Plaintiffs)  Cross-exam by Mr. Macaulay  1 THE COURT:  Could those be stapled together, please.  Mr. Adams,  2 before you go any further, are you able to give an  3 estimate of how long your re-examination will be?  4 MR. ADAMS:  A few minutes.  5 THE COURT:  Oh, all right.  6 MR. ADAMS:  Perhaps 15 minutes.  7 THE COURT:  All right.  8 MR. MACKENZIE:  Well, my lord I don't understand really what  9 happened there.  The witness has identified Exhibit  10 425 and said it's complete and has been cross-examined  11 on that.  And now a page is put in.  I don't know  12 under what basis or criterion or status that page has  13 been put in.  And does my friend want to put that in  14 as another exhibit and is that part of his  15 re-examination or is he handing it up generally as an  16 aide-memoire?  What's the point of this?  17 THE COURT:  Well, I took it to mean from what he said that he  18 had spoken to you gentlemen and was adding it as an  19 omission from the document that had been left out and  20 that there was at least tacit an agreement that it  21 should be added to the document.  If that's not so, no  22 harm has been done.  I should hear what counsel have  23 to say about that.  24 MR. MACKENZIE:  Well, we have not admitted that.  I agree Mr.  25 Grant told me that he was going to do this and we  26 understood that this had been -- at least I understood  27 it would be done during the re-examination.  28 THE COURT:  Well, it just was.  But I would — I accept what Mr.  29 Adams says, that it was left out inadvertently.  If  30 you wish to cross-examine further on it, then I think  31 perhaps you should do it before Mr. Adams re-examines.  32 MR. MACKENZIE:  Well, my lord, as your lordship may recall there  33 was cross-examination on this page and an explanation  34 was given for it not being in the --  35 THE COURT:  I don't recall that.  Not with the precision with  36 which you have just stated it.  I don't dispute what  37 you say, but --  38 MR. MACKENZIE:  Well, my lord, if I can give your lordship the  39 reference to that cross-examination was at volume 90  40 page 5690 line 46 over to page 5691.  41 THE COURT:  Yes.  42 MR. MACKENZIE:  And the reference that I made earlier, my lord,  43 was in that volume at page 5685 line 44 where in chief  44 Mr. —  45 THE COURT:  I am sorry, what page?  46 MR. MACKENZIE:  I am sorry, that's cross-examination.  4 7 THE COURT:  Yes. 5808  Proceedings  1 MR. MACKENZIE:  That's cross-examination at line 44 where Mr.  2 Smith said that he -- or he agreed that this exhibit  3 correctly represented all members of the house and  4 clan.  And in chief, of course, Mr. Adams asked him  5 what -- at volume 89 page 5628 asked him whether this  6 was a correct compilation of the genealogy containing  7 the revision and whether he had a chance to review and  8 Mr. Smith of course agreed to that.  So in submission,  9 my lord, what I would suggest is that in view of this  10 examination in chief and cross-examination that this  11 page should be a separate exhibit if Mr. Adams feels  12 that he wants to put it in in re-examination.  I can't  13 deny that it's the subject for re-examination because  14 I cross-examined on it.  And so -- and if I have  15 further questions on cross-examination in my  16 submission that should follow what Mr. Adams'  17 re-examination is relating to this page.  I don't know  18 what he has to say about it now.  19 THE COURT:  Mr. Macaulay.  20 MR. MACAULAY:  I received page 17 at 2 o'clock.  I am not  21 surprised to see it.  The witness agreed with me, too,  22 that the -- it had been deleted from the second  23 edition.  2 4 THE COURT:  Yes.  25 MR. MACAULAY:   My recollection is he said it was a mistake.  26 MR. ADAMS:  That's my recollection as well, my lord.  27 MR. MACAULAY:  Which doesn't — I have forgotten about the  28 earlier answer.  I have -- I have no objection to it  29 being included in this exhibit provided, of course, in  30 re-examination the witness confirms with what my  31 friend has said.  32 THE COURT:  Well, I am not sure what all the problem is.  I  33 gathered that what Mr. Adams said, although I don't  34 have his words committed to memory, was that this page  35 had been left out.  That is a mistake had been made.  36 If that's not accepted, then I think Mr. MacKenzie's  37 position may be sound that it should be a subject of  38 re-examination and Mr. Mackenzie can have leave to  39 cross-examine.  If that's the way you wish it to be,  40 then, Mr. Mackenzie, I don't see any reason why we  41 shouldn't put it that way.  I think -- I think that  42 you are entitled to preserve your position that this  43 is not a mistake, if that is your position.  So you  44 may go ahead, Mr. Adams, and proceed that way.  45  46 RE-EXAMINATION BY MR. ADAMS:  47 Q   Mr. Smith, I want to show you a page of a genealogy 5809  V. Smith (for the Plaintiffs)  Re-exam by Mr. Adams  1 which is marked 17 in the lower right-hand corner and  2 you'll see a number of names appearing on that and one  3 of them is Tom Harris.  Do you know who Tom Harris is?  4 A   Yes.  5 Q   And did Tom Harris hold the name Giila'wa?  6 A   Yes.  7 Q   And is Tom Harris a member of the Eagle Clan?  8 A   Yes.  9 Q   And if Tom Harris were living today would he be a  10 member of the house of Sakum Higookw?  11 A   Yes.  12 Q   Mr. Smith, do you recall approximately two weeks ago a  13 meeting with me and Allen Johnson in Hazelton?  14 A   Yes.  15 Q   And do you recall reviewing the January 21 genealogy  16 which is tab 13 in my friends' books and Exhibit 431?  17 That was the genealogy dated January 21.  Do you  18 recall reviewing that genealogy at that time?  19 A   Yes.  20 Q   And do you recall making corrections to that genealogy  21 at that time which I took down?  22 A   Yes.  23 Q   And did you further consult some knowledgeable people  24 in your house about questions relating to that  25 genealogy?  26 A   Yes.  27 Q   And did those include your mother?  28 A   Yes.  29 Q   And did you report to me the results of those  30 investigations?  31 A   Yes.  32 Q   And to your knowledge between your review of that  33 January 21 genealogy and the production of the  34 genealogy dated May 2 did you have any contact of any  35 kind with Heather Harris?  36 A   Not after -- not after the first genealogy was  37 printed.  38 MR. ADAMS:  My lord, I would ask then that that page 17 be  39 marked as an addendum, if my friend prefers, to the  40 Exhibit 425.  41 THE COURT:  Yes.  It will be 425A.  42 THE REGISTRAR:  425A.  43  44 (EXHIBIT 425A:  Addendum to Exhibit 425, Page 17)  45  4 6 MR. ADAMS:  47 Q   Now, Mr. Smith, could I ask you to look at tab 13 of 5810  V. Smith (for the Plaintiffs)  Re-exam by Mr. Adams  1  2  3  4  5  A  6  THE  COURT  7  8  9  10  MR.  ADAMS  11  12  13  THE  COURT  14  MR.  ADAMS  15  16  THE  COURT  17  MR.  ADAMS  18  Q  19  20  21  22  A  23  THE  COURT  24  25  MR.  ADAMS  26  THE  COURT  27  MR.  ADAMS  28  Q  29  30  31  32  33  34  35  36  A  37  Q  38  39  A  40  Q  41  A  42  Q  43  44  45  A  46  Q  47  A  that binder, Exhibit 431.  And in particular look at  page 12.  Is that in front of you?  Now, that was the  January 21 genealogy.  Did you at any time make a  decision to remove those people from the genealogy?  No.  There are some changes.  Has Ada -- she hasn't  changed her status.  One she has a dot in the centre  and the other she doesn't.  The dot indicates a person  being deceased, does it not?  Yes.  And it appears to me that the people who are  deceased are -- that in fact is all of those people  are now shown as deceased.  That's the only change.  Oh, I see.  Yes.  All right.  In fact, some were shown as deceased on the original  version, but were not dotted.  All right.  Oh, yes, I see that.  All right.  Mr. Smith, to your knowledge are all of the people  shown on the page 17, the loose page, the page that  was marked as 425A, to your knowledge are those people  deceased?  Yes.  Can counsel remind me what the broken line means  again?  Adoption, my lord.  Adoption, yes.  Now, Mr. Smith, you were asked about the answers to  interrogatories of Peter Turley, that is Giila'wa, and  that's at tab five of my friends' book and it became  Exhibit 433.  I'd just like to show you page 36 of  that which is marked at the top Schedule A Giila' wa  house members.  Now, about halfway down that list  you'll see the name of Allen Johnson and opposite him  the place Gitwangak.  Do you see that?  Yes.  And is Allen Johnson a member of the house of Sakum  Higookw?  Yes.  And does Allen Johnson hold the name D'ewelasxw?  Yes.  And the second name from the bottom you will see the  name Priscilla Smith and opposite the place  Kitwancool?  Yes.  Is that your mother's name?  Yes. 5811  1  Q  2  A  3  Q  4  A  5  Q  6  A  7  THE  COURT  8  A  9  MR.  ADAMS  10  11  12  Q  13  14  A  15  Q  16  17  A  18  Q  19  20  21  MR.  macke:  22  23  THE  COURT  24  25  26  27  28  MR.  ADAMS  29  30  31  THE  COURT  32  33  34  MR.  ADAMS  35  36  THE  COURT  37  MR.  ADAMS  38  39  THE  COURT  40  MR.  ADAMS  41  42  THE  COURT  43  MR.  ADAMS  44  45  46  MR.  macke:  47  V. Smith (for the Plaintiffs)  Re-exam by Mr. Adams  And is she a member of the house of Sakum Higookw?  Yes.  And she holds the name Sgayeen?  Yes.  Supposed to be an S between the I and the C.  You are saying that her name is misspelled there?  Yes.  :  How should it be spelled?  P-r-i-s-c-i-1-l-a.  :  I think, my lord, we have been as guilty as anyone  else with mangling the situation.  I think it appears  on the genealogy as P-e-r.  And your mother, Priscilla Smith, was she ever a  member of the house of Giila' wa?  No.  And is Allen Johnson ever a member of the house of  Giila' wa?  No.  Now, I'd like to refer you, as you were a number of  times by Mr. Mackenzie, to your examination for  discovery.  JZIE:  I think I am going to object to any reference to  examination for discovery, my lord.  :  Well, the practice, Mr. Adams, as I have -- as I  understand it, is that you may ask him to look at  other connected parts, but for you to examine your  witness on his discovery is a form of leading, if not  offensive in other grounds.  :  My lord, all I am seeking to do is asking him about  a very intimately connected part which was not read in  by my friend.  :  Isn't it really a matter for you as counsel for me  to look at that and see if I find it so connected I  should put it into evidence?  :  I am happy to do that, my lord. And that's the  extent of my questions.  :  All right.  What are you referring to?  :  I am at question 460 on page 60 of the discovery  transcript.  :  460, yes.  What are you asking me to look at?  :  The questions following beginning with 462.  I think  my friend read up to the end of 461.  :  Yes, he did.  :  And then from 462 on to the end of 466 on the next  page, in my submission that's the continuation of the  discussion.  JZIE:  My lord, I wasn't paying attention.  That was  462 to what? 5812  V. Smith (for the Plaintiffs)  Re-exam by Mr. Adams  MR.  THE  MR.  1 THE COURT:  4 66.  MACKENZIE:  Yes.  My lord, if your lordship will recall I  referred to this on the cross-examination rather than  when I was reading out the passages.  COURT:  Yes.  MACKENZIE:  But I don't have any objection.  I think this  represents what I asked Mr. Smith on his  cross-examination about the meaning of that name.  I think it's sufficiently connected and it should be  part of the evidence at trial.  Not as part of the  defendants' case put in by reason of -- opened up by  reason of the discovery, but just evidence in the  case.  ADAMS:  May that be read in, my lord?  COURT:  It's not necessary to read in.  I have noted it as  part of the evidence and it should form part of the  record of the trial.  (Questions 462 to 466 of V. Smith's Examination for  Discovery forms part of the trial)  ADAMS:  Q   Mr. Smith, you have been asked a number of questions  relating to Sakum Higookw, D'ewelasxw, Simadiiks and  Giila' wa.  Is there any distinction today about the  membership of the houses of Sakum Higookw, D'ewelasxw,  Simadiiks and Giila'wa?  MACKENZIE:  Well, my lord, my submission I object to that  question.  My submission this matter -- these matters  were all covered fully in examination in chief.  The  witness said they are all members of the house.  He  agreed with that in cross-examination and then he went  and changed -- he gave other evidence and it's been  completely canvassed on examination in chief in my  submission, my lord.  MACAULAY:  I support that objection.  That's — I think  that's not proper re-examination, my lord.  It was  dealt with in chief.  COURT:  Was it not dealt with in chief, Mr. Adams?  ADAMS:  Well, the unclear thing that I'm pointing to, my  lord, is the time at which various -- that various  42 answers related to as far as the composition of the  43 house or houses, and all I'm seeking to clarify is  44 what the present position is.  45 MR. MACAULAY:  But that very thing that was led in chief, my  46 lord.  47 THE COURT:  No.  I think it was opened up in chief, Mr. Adams,  9 THE COURT  10  11  12  13  14 MR.  15 THE  16  17  18  19  20  21  22 MR.  23  24  25  26  27  2 8 MR.  29  30  31  32  33  34  35  3 6 MR.  37  38  39 THE  4 0 MR.  41 5813  1  2 MR.  ADAMS  3  Q  4  5  6  7  8  9  10  11  12  13  A  14  Q  15  16  17  18  19  A  20  Q  21  22  A  V. Smith (for the Plaintiffs)  Re-exam by Mr. Adams  and that being so it's not proper re-examination.  Mr. Smith, Mr. Mackenzie asked you about territory on  Exhibit 3 -- sorry, 428, and that's one of the maps  that you referred to in your evidence.  That's the Xsu  gwin yookhl territory.  And I think he asked you  whether Peter Turley owned that territory and you said  that he did, and then he asked you to agree that Allen  Johnson also claims that territory and you agreed that  he did.  My question is simply:  Are you aware of a  conflict between the houses of D'ewelasxw and Giila'  wa with respect to the ownership of that territory?  Yes, I am aware.  You were asked a number of questions about Doris  Morrison.  And you were asked this afternoon I think  or this morning whether she attends Feasts and you  said rarely.  Have you ever at a Feast seen Doris  Morrison seated as Ligiinihla?  No.  Have you ever seen her at a Feast addressed by that  name?  No.  23 THE COURT:  What was the name again?  24 MR. ADAMS:  Ligiinihla.  Do you have a spelling for that,  25 please?  26 THE TRANSLATOR:  It's L-i-g-i-i-n-i-h-1-a.  2 7 THE COURT:  Thank you.  :  My lord, the diagram, Exhibit 348, is a Feast  seating.  It was until recently under your binder.  :  Yes, I have it.  Now, you were asked some questions about -- I believe  by Mr. Macaulay that opposite your name is the name  Sakum Higookw and words in brackets Lax skiik and  below that Ligiinihla and next to that Lax skiik.  Sakum Higookw and Ligiinihla are both names that you  hold?  At the moment, yes.  And is there at present one seat for both those names?  Yes.  Mr. Macaulay asked you about the area around Shandilla  Lakes and he asked you about Gerald Harris, Tommy  Harris' son, trapping on that territory.  And you said  that it was the son's privilege to get sustenance from  his father's land.  My question is:  Does Gerry Harris  have your permission to trap on that territory?  He never asked permission.  28  MR.  ADAMS  29  30  THE  COURT  31  MR.  ADAMS  32  Q  33  34  35  36  37  38  A  39  Q  40  A  41  Q  42  43  44  45  46  47  A 5814  V. Smith (for the Plaintiffs)  Re-exam by Mr. Adams  1 MR. ADAMS:  Those are all my questions, my lord.  2 THE COURT:  All right.  Thank you, Mr. Smith.  You are excused.  3 MR. MACKENZIE:  Well, my lord —  4 THE COURT:  Oh, I am sorry.  5 MR. MACKENZIE:  Hold on for a minute.  6 THE COURT:  Yes.  7 MR. MACKENZIE:  If I may, my lord.  8 THE COURT:  You have need to cross-examine.  9  10 CROSS-EXAMINATION BY MR. MACKENZIE, Continued:  11 Q   Now, Mr. Smith, you recall that you told me that Peter  12 Turley or you agreed with me that Peter Turley was  13 Giila' wa today?  14 A   Yes.  15 Q   Yes.  And you have also agreed with me that he is the  16 chief in the house of Giila' wa?  17 A   Yes.  18 Q   And he is not in the house of Sakum Higookw.  You  19 recall me saying that?  20 A   Yes.  21 Q   Well, that applies to Tom Harris, doesn't it; he's in  22 the house of Giila' wa, wasn't he, before his death?  23 A   Yes.  24 Q   He wasn't in the house of Sakum Higookw, was he?  25 A   No.  26 Q   Now, referring to Exhibit 425A which is page 17.  27 There doesn't appear to be a copy here for the witness  28 but I will just put this one.  Do you have a copy of  29 exhibit --  30 THE REGISTRAR:  Should be in that blue book.  31 MR. MACKENZIE:  425A.  Yes.  32 Q   Now, when is the first time that you saw the -- you  33 saw this page 17?  That was just now, wasn't it?  34 Exhibit 425A?  35 A   Yes.  36 Q   Yes.  And you testified that -- I am sorry, just so  37 that it's clear, your testimony is that the first time  38 you have seen this Exhibit 425A was when Mr. Adams  39 handed it to you this afternoon, correct?  40 A  When I think it's Macaulay that showed it to me first.  41 Q   Well, I see.  You think Mr. Macaulay showed this to  42 you?  43 A   I think so, yes.  44 Q   I see.  4 5 MR. MACAULAY:  I —  46 MR. MACKENZIE:  I don't think Mr. Macaulay —  47 MR. MACAULAY:  I have no recollection of doing that, my lord. 5815  1  A  2 MR.  macke:  3  Q  4  A  5  6  7  Q  8  9  10  A  11  Q  12  13  A  14  Q  15  16  17  A  18  19  Q  2 0 THE  COURT  21  22  23  2 4 MR.  macke:  25  Q  26  27  28  29  A  30  Q  31  A  32  Q  33  34  35  A  36  Q  37  38  39  A  40  Q  41  42  A  43  Q  44  45  A  46  Q  47  V. Smith (for the Plaintiffs)  Cross-exam by Mr. Mackenzie  I beg your pardon?  I really thought he did, because I told him my  response was it must have been dropped out of the  report that was handed in.  Well, now, you understand that this page was not in  Exhibit 425, your genealogy that you identified.  Do  you understand that?  Yes.  And so it was not in the exhibit when you identified  it on Monday, do you understand that?  Yes.  So can you agree with me that the first time you've  seen this page 17, Exhibit 425A, was this afternoon  when Mr. Adams handed it to you, is that correct?  If Mr. Macaulay didn't, I guess this is the first  time.  Yes.  :  I think the witness is entitled to be reminded,  which I think is the case what Mr. Macaulay and others  showed him was page 12 of the older genealogy which is  Exhibit 431.  JZIE:  Yes, my lord, I agree.  Both Mr. Macaulay and I asked you about this Exhibit  431.  Do you remember Mr. Macaulay and I directed your  attention to page 12 of exhibit, the old genealogy  from January?  Yes.  Yes.  You recall that now?  Yes.  Yes.  So you'll agree with me that the first time you saw  this revised page 17 was this afternoon when Mr. Adams  handed it to you?  Yes.  Yes.  Yes.  Very good.  And it's true also, isn't it, that  the first time you saw the revised Exhibit 425 or the  new genealogy of May 2 was on Monday?  Yes.  Yes.  And you first saw it when you were in court  Monday morning?  Yes.  You hadn't had an opportunity at that time to check  the revisions, did you?  No.  No.  So you weren't really sure whether all the  revisions were correct or not, were you? 5816  1  A  2  Q  3  4  5  A  6  Q  7  V. Smith (for the Plaintiffs)  Cross-exam by Mr. Mackenzie  No.  No.  And in fact, when you identified Exhibit 425 as  correctly showing all the members of the clan, you  weren't certain of that, were you?  Not at that time, no.  And I also ask you to agree with me that at this  moment you are not certain whether there are other  8 pages missing from this genealogy?  9 A   I haven't had time to study it, so I am not too  10 certain.  11 MR. MACKENZIE:   Yes.  No further questions, my lord.  12 THE COURT:  All right.  Thank you, Mr. Smith.  You are excused  13 now.  Thank you.  14  15 (WITNESS ASIDE)  16  17 THE COURT:  Can counsel tell me whether I should have the  18 exhibits that were -- that we have here now for  19 assistance with our next witness?  20 MR. MACKENZIE:  Yes, my lord, Mr. Goldie will be taking the next  21 witness.  But since I have just dealt with this  22 witness and the exhibits, perhaps I could speak  23 briefly before Mr. Goldie responds.  I think at  24 least —  25 THE COURT:  It's just a question of whether I take them away or  26 not.  I can very conveniently leave them here.  27 MR. MACKENZIE:  I think some of the exhibits will be relevant.  2 8 THE COURT:  Yes.  I will leave them here.  All right.  Do you  29 want to start the motion now, gentlemen, or do you  30 want to start tomorrow?  31 MR. GOLDIE:  Well, perhaps there are a couple of housekeeping  32 matters that we can deal with if not right now, I  33 could give notice of concerns I have.  34 THE COURT:  Yes.  35 MR. GOLDIE:  The first relates to the schedule.  The next  36 witness is Mr. Marsden followed by Mr. Muldoe.  As of  37 this morning we didn't have a summary from Mr. Muldoe  38 and we don't have any indication of what witnesses are  39 to follow after that.  I think it would be helpful if  40 my friend could address that question tomorrow  41 morning.  The other matter before I begin the motions  42 is a minor one but I think I should deal with it.  43 Your lordship may recall, or then again you may not,  44 that during the evidence of Mr. Dan Michell he made  45 reference to the burning of a cabin on Poplar Lake and  46 he left the impression, at least so far as I was  47 concerned, that the forestry service had been 5817  Discussion  1 responsible for that.  The transcript reference is  2 volume 60, page 3677.  3 THE COURT:  3 677.  4 MR. GOLDIE:  Yes.  And he had identified a photograph and there  5 were two photographs.  One of his wife in front of a  6 cabin and the second of his wife examining the remains  7 of a cabin which had been burned.  And at line 12 he  8 was asked this question:  "Mr. Michell, do you have  9 any knowledge as to how that cabin burned?"  And then  10 he gives an answer which related to it having been  11 broken into at some time.  And then he goes on at line  12 37:  13 "And they told us about it.  And later me and the  14 wife went with Sylvester and we went back there to  15 see what had happened.  And that's when I took  16 this picture -- photo.  And we've inquired about  17 it with the forestry, and they deny burning it.  18 This was during the hot summer when the fire  19 closure was on.  Nobody was allowed to do any  20 burning.  So we assumed that it was the forestry  21 that did it because all the area was pretty dry so  22 whoever decided to burn that to prevent forest  23 fire.  I believe they had pump and everything set  24 up before they burn it down, but they deny it."  25  2 6 Now, I had some inquires made about that and I am  27 happy to say that the forestry service did not burn it  28 down.  In fact, a fire ranger reported the fire and  2 9 late in the evening before and when they went down the  30 next morning the cabin had been burned down.  Some six  31 days later another cabin was burned and this time the  32 forestry service arrived before two people in a truck  33 had left.  They were later charged with burning a  34 second cabin and they pleaded guilty.  And the private  35 opinion of the forestry service is that they were also  36 responsible for the first burning.  But be that as it  37 may I think I owe it to my clients, forestry service,  38 to make it clear that that service was not responsible  39 for that burning.  40 Now, my lord, the other housekeeping matter, I  41 take it we are not going to deal with, possibly not a  42 housekeeping matter, but it is the application of Mr.  43 James Sterritt and if he is not here I can go on with  44 the next one.  45 THE COURT:  Yes.  All right.  Well, I don't propose to deal with  46 Mr. Sterritt's application.  He has been given notice.  47 He hasn't arrived.  I have watched the crowd 581?  Discussion  1 carefully.  None of them appear to be Mr. Sterritt  2 that I know.  So that will just be left as where it  3 now rests and we will see if it's activated again.  4 All right.  Mr. Grant?  5 MR. GRANT  6 THE COURT  7 MR. GRANT  Yes, I just wish to speak to this last matter.  Do you really have to? Do you really have to?  All I wish to say is that Mr. Rush was dealing in  8 correspondence with Mr. Goldie concerning this and I  9 just wish to say that I have no comment on it now.  I  10 understood there was ongoing correspondence between  11 them and if there is any further information I will  12 pass it on.  But I presume Mr. Goldie is not  13 introducing evidence and we have had evidence that the  14 government does burn the cabin --  15 MR. GOLDIE:  Mr. Grant, they did not burn this cabin.  16 THE COURT:  There is no evidence that they did.  No.  Well, I understood that's what I thought is  that they denied it.  The evidence was they denied  burning it.  Apart from the denial, there is no evidence that  they did.  I don't think that that was --  IE:  My lord, I should also say that to the best of  my recollection there was no admissible evidence that  they burned cabin of Mrs. Kenny's.  I haven't heard any evidence and I would rather not  get into it if I can avoid it.  Mr. Goldie, I have  another matter at four o'clock.  Is there any point in  starting it with only eight minutes to go?  Not unless --  Given that he has given me six tabs, I at least have  to read this.  33 THE COURT:  I don't think see much point in starting this Mr.  34 Goldie.  You can open it if you wish.  35 MR. GOLDIE:  It will be closed pretty shortly if your lordship  36 has something else at four.  37 THE COURT:  I do at four.  All right.  We will adjourn then  38 until 10 o'clock tomorrow morning.  I gather you are  39 going to be more than this week with the next witness.  40 Are we going to next week?  41 MR. GRANT:  I anticipate of course my friends -- I believe I  42 informed, and I am going from memory, I informed Mr.  43 Goldie and Mr. Macaulay that I anticipate his direct  44 will be one and a half to two days.  I think I  45 anticipate right now it will be one and a half days,  46 so that will mean that the cross-examination -- the  47 objective as I understand all counsel are agreed that  17  MR.  GRANT:  18  19  20  THE  COURT:  21  22  MR.  GRANT:  23  MR.  MACKEN  24  25  26  THE  COURT:  27  28  29  30  MR.  GOLDIE  31  MR.  GRANT:  32 5819  Discussion  1 if we would go until the end of next Tuesday.  I  2 understand Mr. Goldie has other commitments after that  3 and that's the same problem that we have.  So --  4 THE COURT:  All right.  It's understood then we won't be sitting  5 Wednesday, Thursday and Friday of next week.  6 MR. ADAMS:  That's my understanding.  7 THE COURT:  All right.  We will adjourn then.  Thank you.  8  9 (PROCEEDINGS ADJOURNED UNTIL THURSDAY, MAY 5, 1988 AT  10 10:00 A.M.)  11  12 I hereby certify the foregoing to be  13 a true and accurate transcript of the  14 proceedings herein to the best of my  15 skill and ability.  16  17  18 Laara Yardley,  19 Official Reporter,  20 United Reporting Service Ltd.  21  22


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