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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1988-05-31] British Columbia. Supreme Court May 31, 1988

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 6687  1 31 May 1988  2 Vancouver, B.C.  3  4 (PROCEEDINGS RESUMED PURSUANT TO AN ADJOURNMENT)  5  6 THE REGISTRAR:  Order in court.  In the Supreme Court of British  7 Columbia, this Tuesday, May 31, 1988.  Calling  8 Delgamuukw versus Her Majesty the Queen at bar.  I  9 caution the witness you are still under oath.  10 THE COURT:  Mr. Grant.  I make this the hundredth day of  11 evidence in this case.  An auspicious occasion  12 should be noticed.  13 MR. GRANT:  My lord, given that I was standing up here on the  14 first day, that's a share in the --  15 THE COURT:  I think we were both here, Mr. Grant.  16  17 EXAMINATION IN CHIEF CONTINUED BY MR. GRANT:  18 Q    Just a moment, my lord.  Sorry, my lord.  There is  19 just one document I wanted to refer the witness to.  20 Yesterday, Mr. Williams, you talked about your role  21 as the -- since you have taken on a name as a chief  22 in your house.  And one of the things you referred  23 to was the passage of names.  I'd like to refer you  24 to tab number 2 in your document book and if you  25 could just pull out that list.  I would ask if you  26 recognize that document and how it came to be  27 created?  28 A    Yes, I do.  It was -- it was typed by my sister and  29 I made the notes on -- the handwritten notes on it.  30 Q    Okay.  And does this show names, Gitksan names, in  31 your house and the meaning of those names?  32 A    That's correct.  33 Q    And the holders of some of those names were typed in  34 as well?  35 A    That's correct.  36 Q    Now, at the bottom of the first page, there is your  37 handwritten notation to be named at Malii's feast at  38 Kitwancool, March 12, 1987, and there is a star  39 which is alongside four names on the first page, and  40 a number of other names as we go through.  Did you  41 make that notation and handwrite those names in?  42 A    That's correct.  43 Q    And were those names passed to those people at March  44 12, 1987?  45 A    That's correct.  46 Q    Can you explain to the court the process by which  47 these people were chosen to have these names and, if 66?  1 you were involved in that process, what your  2 involvement was?  3 A    We had a meeting about a week prior to the feast and  4 there was a meeting of all of our house members.  5 There was about 30 people that -- we had dinner at  6 my mother's place and all these people were present.  7 THE COURT:  All these people were present?  8 THE WITNESS:  Yes, all these people were present and we wanted  9 to make sure -- ensure that we did our planning for  10 the March 12 feast, what we were going to be doing,  11 and it was an opportunity for us to name some of the  12 individuals; and for instance, the first two there,  13 Tony Morgan and Pauline Morgan, they were named at  14 that feast.  And the process for naming individuals  15 is in the feast hall.  You present -- for instance,  16 Tony Morgan, you present him publicly.  You make him  17 standing right in front of everybody and say, "This  18 is Tony Morgan, he is going to have the name -- the  19 name is Mii Kila, and his Wilksiwitxw on his  20 father's side would christen him.  There is usually  21 about between five to ten people on his father's  22 side would christen him and our term that we use for  23 that is Ee'esxw.  24 MR. GRANT:  Do you have a spelling for that, please?  25 THE SPELLER:  E-e stop e-s-x-w.  26 THE COURT:  That means what, again, please?  27 THE SPELLER:  Christen.  That's when the people — when the  28 person who they ask calls the name out.  29 THE COURT:  All right, thank you.  3 0 MR. GRANT:  31 Q    Go ahead.  32 A    When an individual calls back the name, that  33 particular individual on the father's side is paid  34 usually a dollar or two dollars and that happens  35 throughout the whole -- the other individuals, like  36 Pauline Morgan, Rena Benson, Doreen -- Dorinda  37 Sherry, and the other two pages as well.  38 Q    Okay.  39 A    The same process happens.  40 Q    Well, from your reasons would it -- is it correct to  41 say that the Wilksiwitxw of the person who's getting  42 the name must be present at the feast when that  43 person gets the name?  44 A    That's correct.  That's why we meet at least a week  45 prior to ensure who's going to be calling back the  46 names and ensure that their father's side is present  47 when -- at that particular feast. 6689  1  Q  2  3  4  5  6  7  8  A  9  Q  10  11  12  A  13  Q  14  15  A  16  17  18  19  20  21  22  23  24  25  26  27  28  Q  29  30  31  32  33  34  A  35  36  Q  37  A  38  39  40  41  42  43  4 4 MR.  GRANT:  45  4 6 THE  SPELLER  4 7 MR.  GRANT:  Okay.  Just wanted to clarify one other point.  You  mentioned in explaining who was present at the  meeting the week before who all of the persons here  were.  Now, were you referring to all of the people  listed or are -- on the first three pages, or are  you referring to those people who were going to be  given names?  Those people who were going to be given names.  Now, I'd just like to ask you, were all of these  people whose names are given stars names at the  March 12, 1987 feast?  That's correct.  And what was the occasion of that feast?  Why was  Malii holding that feast?  It was shortly after Bob Wright died and we had  commissioned Buddy Williams, I believe, to construct  a fence and he had completed that particular task,  and it was for us to hold another feast where we  would pay him for the duties that he had performed  for us.  And the reason why these -- why we wanted  to ensure that the names are given out to this  particular feast is to show the public at that  particular feast that these individuals belong to  the House of Malii and that they are members of  that -- the House of Malii and that it ensures that  our house is alive and it's -- our elders and our  chiefs call it, it brightens up the house.  Now, just to give an example of those people who  would have to be there aside from Malii's own house,  I just ask if you could tell the court who are the  Wilksiwitxw; for example, for Tony, Pauline Rena and  Dorinda, those people on the first page who were  given names at these --  Tony Morgan's father is Barney Morgan.  He is a Frog  from Kitwancool.  Which house?  And the same for Rena Benson, Dorinda Sherry.  They  are from the house of Tony Morgan is from -- his  father is from the House of Luuxoon.  Rena Benson  is -- her father is from the House of Gunuu and the  same thing with Dorinda Sherry, her father is from  the House of Gunuu.  Pauline Morgan, her father is  from the House of Lelt.  Could you just give numbers for the Luuxoon, Gunuu,  and Lelt?  Luuxoon is 45; Gunuu is 13; and Lelt is 40. 6690  1  Q  2  3  4  5  6  7  A  8  9  Q  10  A  11  12  Q  13  14  15  16  17  18  19  A  20  21  22  23  24  25  26  27  28  Q  29  30  A  31  Q  32  33  34  35  A  36  37  38  39  40  41  42  43  44  45  46  47  Going over to the second page and there is a  reference to persons given names, were Clyde  Williams, Wilfred Williams, Perry Good, Gerald Brown  and Jackie Williams.  Would you indicate which --  who was the Wilksiwitxw for Clyde, Wilfred and  Jackie Williams?  Those three individuals you just named are my  brothers and they are Wilksiwitxw is Gwis Gyen.  And what about Perry Good?  Perry Good, his father is Godfrey Good and his  Wilksiwitxw is from the House of Gunuu.  Now, in your answer earlier you just had explained  that the people -- one reason to put up the feast is  you wanted to show the public that the members of  the house were alive.  When you say you wanted to  show the public, were you referring to the Gitksan  or -- the Gitksan and the non-Gitksan?  Who do you  mean by the public?  Well, basically both sectors, you know, the Gitksan,  when we give names, it clearly identifies who these  individuals are and clearly identifies which house  they belong to; it clearly identifies which  territory they are connected to, and it gives them  certain rights to use the territory, and it's good  for the public as well, the general public of  knowing who they are; that they have Indian names;  that our culture is still alive and doing well.  Now, at this feast in March of '87, you already held  the name Ax Gwin Desxw at that time?  That's correct.  And what was your role or what was your -- what did  you have to do in terms of the process of the naming  of these people as one of the chiefs in Malii's  house?  What did you actually do at the feast?  I ensured that the, you know, that the certain  procedures were followed in the feast.  I made sure  that the feast was started on time; that the guests  were properly fed after -- after the meal; that  the -- we do the -- we do the collection of money  amongst ourselves.  That is counted up and expenses  are deducted from there and ensure that leftover  money is distributed to the guests in the feasthall;  and ensure that as soon as that is completed that  individuals are ready with their -- with the list of  their father's side who are going to christen them,  and make sure that these people stand up in public.  There is somebody beside them, that makes it public 6691  1 and that, and the procedure is followed and make  2 sure that that goes well; and we follow the law on  3 it.  4 Q    And were these names recognized by these people's  5 Wilksiwitxw and by the guest chiefs at the end of  6 that feast?  7 A    Yes, it was.  8 Q    And was it the process of the passing of these names  9 on approved by those guest chiefs as being in  10 compliance with the Gitksan Law?  11 A    That's correct.  12 MR. GRANT:  I'd like to move to another area of your evidence.  13 I'd -- before I do that, I'd like that document to  14 be marked as the next exhibit, please?  15 THE REGISTRAR:  Exhibit 565 tab 2, my lord.  16  17 (EXHIBIT 565 TAB 2 - Document 4 - Four pages Handwritten  18 notes by G. Williams.  Names in House of Malii and  19 meanings)  20  21 MR. GRANT:  My lord, if I could just  — I intended to raise  22 this first thing this morning but if could just  23 indicate to the court so madam registrar may be able  24 to make logistical reference.  There is a very brief  25 video that I would be asking the court to view as  26 part of this witness' evidence tomorrow morning if  27 there is an ability to do that.  I know there were  28 set-ups made -- other arrangements.  I don't know if  29 there has been such arrangements made here.  I know  30 there was --  31 THE COURT:  I don't know if we have one in the building or one  32 that's brought in for every occasions but madam  33 registrar --  34 THE REGISTRAR:  Counsel has to do it through administration.  35 Whoever wants it in has to order it through the  36 administration.  37 MR. GRANT:  I will make the arrangements.  I just wish to advise  38 the court and my friends.  39 MR. PLANT:  Is there going to be any opportunity for me to see  40 this video which obviously is the first I have ever  41 heard of it?  42 MR. GRANT:  It was listed yesterday and I think it is one of the  43 documents you have requested, I am not sure.  I  44 haven't checked the document list.  45 MR. PLANT:  That doesn't answer my question, because the usual  46 practise is that there is some delay between our  47 requests and -- or I should say the usual 6692  1 experience.  I just wondered whether there would be  2 any opportunity for me to see it.  3 THE COURT:  Have you an extra tape that you could give your  4 friend?  5 MR. GRANT:  The reason I raised this is because I wanted to  6 clarify this morning, they wished to have a copy of  7 it and I will make arrangements for that and I will  8 try to do it, make a copy as soon as possible.  Of  9 course he can have a look at it ahead of time.  10 That's only logical.  I am not certain if it is one  11 of the documents he's requested.  12 MR. PLANT:  Actually it is not.  I am advised by my colleague  13 that it is not on the list of the requests that we  14 made.  I wonder if I might ask if my friend has any  15 other documents which he is planning to introduce  16 through this witness.  None of the documents in his  17 book yesterday were on any document list prior to  18 yesterday and it would be of some assistance to me  19 to know now if there are any further documents which  20 my friend intends to put to this witness that would  21 at least give me some opportunity to see them ahead  22 of time.  23 MR. GRANT:  Yes, there are, and they are all listed, and I think  24 they are all requested.  And the reason why they  25 weren't included in the document book was logistics  26 of getting the document book prepared and I am  27 hoping to have them before noon so my friend will be  28 able to have a chance to see them.  I was hoping to  29 have them ready this morning.  They are just not  30 ready yet.  It was copied for all the books.  31 Yesterday, you referred to Mr. Williams' evidence  32 about that you were -- became a chief councillor in  33 1985, and you have also explained about the training  34 you have been given as a Gitksan person and taking  35 on the name Ax Gwin Desxw.  Can you explain to the  36 court if there is any relationship between your  37 training and -- your training as a Gitksan, and your  38 decision to run as chief councillor for the band in  39 1985?  4 0        A    Well, I fully know who I am, I know which house I  41 belong, and I know where my territory is.  I know  42 who my members are.  I am from the Kitwancool  43 Village community.  That's foremost in my mind all  44 the time.  My wife and my children, my grandfather  45 is -- originates and lives in Gitwangak.  That's  46 where their house is, and their names come from, I  47 am quite aware of that.  And the reason why I 6693  1 decided that I should run for chief councillor is so  2 I could at least help their community, and my  3 grandfather and I have known a lot of the chiefs and  4 some of the younger people in that community for a  5 long time and I just wanted to help them in some of  6 the struggles they have had.  As to my role as a  7 chief and a chief councillor, my traditional history  8 and teaching and education is foremost in my mind  9 when I perform the duties of chief councillor.  I  10 have to respect the chiefs, the true chiefs, the  11 Gitwangak, the Eagles, the Gitwangak Wolves, the  12 Gitwangak Frogs.  I respect their authority and  13 their advice and that's very clear in my mind.  14 Q    Now, can you explain what you have done, and I am  15 talking now initially now in a general way, the  16 terms of what priorities or what concerns you had  17 when you came in in 1985 and what you have done in  18 the course of the three years you were chief  19 councillor or what you have worked -- what you have  20 been involved in in the village?  21 A    Well, I first became elected in May of 1985.  There  22 was vast amounts of problems in the community and  23 past councils probably struggled through a lot of  24 them and seem to try and take on too many issues.  25 They were very complex and they were -- it was a  26 struggle of -- and there was a sense of lack of  27 achievement and successes in some of the issues and  2 8 problems the community had.  When we -- within a  29 month after being elected, we went to — we had our  30 own council planning meeting and just to orient  31 other members of the council and our first  32 initiative was to -- was to hold a public meeting  33 and that's what we have done in June of '85.  We  34 have held a public meeting where one of the things  35 that we really emphasized and a personal thing for  36 me was to ensure that a majority of members of the  37 community come to the public meetings and especially  38 the elders and the chiefs of that community, try  39 really good effort to get them out to the public  40 meetings and have discussions, and to have input  41 into where the community will go.  And at this  42 initial meeting in June of '85, basically what we  43 said to the community is, you know, what's the  44 problem, and, tell us what the problem is.  Tell us  45 what you see as the problem.  And what we did was  46 got a flip chart and listed all the problems the  47 community had, and I believe there was about 110 6694  1 problems and issues that the community identified.  2 And, from that, we broke up into different groups,  3 and prior to that, was that we categorized the  4 different problems; whether there were education or  5 economic development or housing or aboriginal rights  6 of our people, categorized those so they are all in  7 different columns.  And then we broke up into  8 different groups and ensured that there was at least  9 four groups that discussed the different issues.  10 There may be 20 in -- say for an example, economic,  11 there may be 20 issues, and the thing that we said  12 to different groups in the community hall was, what  13 is the most important issue that you want to see  14 done in the community and give us your priority?  15 What does -- and does one item deal with ten other  16 items in that column and, if it does, then maybe  17 that's the priority that you should tell us, and  18 that's a process that we initially began.  And after  19 that, they came back to re-assemble and said, you  20 know, we appointed a speaker per group and they said  21 this is why we see it as a priority.  Then we all  22 discussed it and debated it and what the message  23 that we threw back to the group was, we cannot deal  24 with all the problems that you have in the  25 community.  What we would like is for you to tell us  26 the three most priority areas that you want us to  27 do.  28 It is our belief that as a council that we should  29 work on only three items -- priority items.  That  30 way we can divert all our energy into three  31 priorities only and nothing else for a year, and  32 that's the tone that we have -- and the relationship  33 that we have had with the community was only three  34 items of priority for the community and so that the  35 staff, that the council, and the community knows  36 what the council is doing, what they expect, and it  37 is a measuring stick for the council and for the  38 whole community and for the chiefs of that community  39 to monitor what their council is doing.  So the  40 initial year, housing was a very important issue for  41 the community.  CNR was a very foremost -- the first  42 priority, and then housing, and if I remember  43 correctly, it was the Treatment Centre that was the  44 foremost priority.  That was in '85.  45 THE COURT:  The treatment centre for what?  46 THE WITNESS:  Third priority.  47 THE COURT:  In treatment for what, for general health or — 6695  1  THE  WITNESS  2  3  MR.  GRANT:  4  Q  5  6  A  7  8  THE  COURT:  9  THE  WITNESS  10  11  12  13  14  MR.  GRANT:  15  Q  16  17  18  A  19  Q  20  21  A  22  23  Q  24  25  A  26  Q  27  A  28  Q  29  A  30  31  Q  32  A  33  34  35  36  Q  37  38  A  39  40  41  42  Q  43  44  45  46  47  :  It is a residential drug and alcohol treatment  centre.  And did you pursue those three priorities in the  first year, 1985, 1986?  Yes, we did.  The major one was the CNR.  The major  effort was put into that.  What was the problem with the CNR?  :  The CNR had come in around -- the Grant Trunk  Pacific at that time came in about 1909, and bisect  with the community and there was disputes of land  where it -- and there was -- it was never ever  settled.  I will return to that in the evidence, my lord.  When you came into office in 1985, did Gitwangak  have a community hall?  No, they didn't.  And they have since acquired one or you have been  involved in the construction of a community hall?  Yes.  That was -- yeah, I was quite involved in that  one.  Was that a priority in the 1986 or the second year  of your --  I believe it was in 1985 as well.  Did you maintain priorities in 1986?  Yes, we did.  And what were those priorities?  The priority was the -- was the fishing by-law and  housing, and I can't remember the third one.  And what about in 1987, last year?  Housing continued to be one of the priorities,  continuing on.  I can't remember the other two but I  know housing has always been ongoing as one of the  priorities.  And in this past year or in this year 1988, what  priorities have you had?  Housing.  The construction of a new school was the  foremost priority, and our own police force was the  second priority, and housing has continued to be one  of the priorities.  Now, I will return to those priorities and what you  have done with respect to them, but I'd just like to  ask you generally about -- or if you could give some  more detail about the relationship that you have  developed in your term as an elected chief of  Gitwangak, the hereditary chiefs, the Gitwangak, 6696  1  2  A  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  Q  20  21  22  23  A  24  25  26  27  28  Q  29  30  A  31  MR.  GRANT:  32  THE  COURT:  33  MR.  GRANT:  34  35  THE  COURT:  36  MR.  GRANT:  37  MR.  GRANT:  38  39  THE  SPELLER  40  THE  COURT:  41  MR.  GRANT:  42  THE  SPELLER  43  THE  COURT:  44  THE  SPELLER  45  THE  COURT:  46  47  THE  SPELLER  that is, those chiefs who are from Gitwangak?  Basically the band council has relationships with  the Department of Indian Affairs.  It is mainly a  financial relationship with the Department of Indian  Affairs.  That's one relationship that we have been  very conscious about.  The other one is for the  general band membership.  Then there is the foremost  in our minds, is the hereditary chiefs and the  elders, and there is two levels to that relationship  there.  One is that the Gitwangak chiefs are  foremost.  There is the Eagle, there is the -- and  the Wolf, and there is the Frogs that are right  above, and then there is the Fireweed from  Kitsegukla below them and there is -- below the  Gitwangak chiefs, there is the Kitwancool chiefs  like Malii lives in Gitwangak and other chiefs like  myself.  Then the band council is below those --  that -- our hereditary chiefs and elders.  Now, you have said there is two tiers of  relationship of hereditary chiefs and referred to  the Gitwangak chiefs.  Can you give some examples of  who you are referring to there?  I am referring to the Eagles, Sakum Hiigookx,  T'ewelasxw, Giila'wa.  For the Wolf, there is Axtii  Hiikw, Tenimgyet.  For the Frogs, there is Wii  Hlengwax, Lelt, Haalus, Luulak, Dax jok.  Those are  the only others of Gitwangak.  Sorry, just for a moment.  You said for the Frogs,  Wii Hlengwax, Lelt, Haalus?  Luulak and Dax jok.  Do you want the numbers for these?  Yes.  Could you give the numbers for the three Eagles,  Sakum Hiigookx and T'ewelasxw  and Giila'wa.  Nine.  That's on the plaintiff's list.  And Axtii Hiisw and Tenimgyet, could you give the  numbers?  :  Txtii Hiisw is not on there.  Wii Hlengwax is 76.  I am sorry, these are the Wolves.  I am sorry.  :  Wii Hlengwax is 76, Lelt is 40.  That's Frog.  :  Axtii Hiikw is Wolf, A-x-t-i-i.  Yes.  I am just putting numbers.  What are the Wolf  numbers only?  :  There is no number for Axtii Hiikw on here. 6697  1  MR.  GRANT:  2  THE  SPELLER  3  THE  COURT:  4  THE  SPELLER  5  MR.  GRANT:  6  THE  SPELLER  7  THE  COURT:  8  MR.  GRANT:  9  10  THE  SPELLER  11  MR.  GRANT:  12  THE  SPELLER  13  MR.  GRANT:  14  Q  15  A  16  THE  SPELLER  17  MR.  GRANT:  18  Q  19  20  A  21  Q  22  23  24  25  26  A  27  THE  COURT:  28  THE  WITNESS  29  MR.  GRANT:  30  THE  SPELLER  31  MR.  GRANT:  32  THE  SPELLER  33  MR.  FREY:  34  THE  COURT:  35  MR.  GRANT:  36  Q  37  A  38  Q  39  A  40  Q  41  42  43  44  45  46  A  47  Q  What is Tenimgyet's number?  :  76.  And the Frog number?  :  4 0 and 41.  That's Lelt and Haalus.  :  Mm-hmm.  There were two others.  And Luulak and Dax jok?  Lelt is 40, Luulak is 41,  Haalus is --  :  25.  And Axtii Hiikw.  :  Axtii Hiikw is 477 in the word list.  And what is that last name that you --  Dax jok.  :  D-a-x space j-o-k.  And these are the Gitwangak chiefs that you are  referring to?  That's correct.  And you referred to Kitsegukla chiefs and Kitwancool  chiefs and you referred to Malii from Kitwancool.  When you talk about the Kitsegukla Gisgaast, can you  refer to some chiefs that are on that level of the  relationships?  There is Gwis gyen, Ksaux.  Sorry, Ksaux?  :  Ray Morgan.  Do you have a spelling for that?  :  I got a different one in here, just part of it.  Do you have the spelling?  :  Ksaux, K-s-a-u-x.  I am sorry, my lord.  Can I get that one, again?  K-s-a-u-x.  That's Ray Morgan?  That's correct.  What house is he from?  Guxsan.  Now, maybe just to -- as a trigger to explain how  you worked with the chiefs, you were involved --  well, since you were in the band council as a chief  there was some dispute with the provincial defendant  in this action relating to the Cedarvale Road.  Do  you recall that?  That's correct.  Now, can you explain the background around that and 669?  1 the relationship between yourself -- the band  2 council and the hereditary chiefs in that dispute  3 and how that was initiated?  4 A    There was major plans of opening up the -- what has  5 been called the West Skeena Logging.  It is an area  6 that's west of -- west of the village of Gitwangak.  7 It is a big area that has not been logged.  It is  8 very -- there is no roads to it and there is big  9 discussion of how they are wanting to open it up and  10 log it, and there was also logging plans around  11 Wilson Creek in that area and the chiefs are -- have  12 been quite concerned about it because it is their  13 territory in that area.  They have land and they  14 have vast amounts of resources in that area, and we  15 had a track of land called the Cedarvale Road which  16 is about five miles long that had never been legally  17 transferred to the province so what we did was  18 listen to what the -- our chiefs were saying and it  19 was mainly either we could shut down the road or do  20 something else, but mainly the plan was to try and  21 say that the -- this track of road about five miles  22 long had never been legally transferred; therefore,  23 we initiated a court action to try and block that  24 vast amount of logging plans in that area and mainly  25 listened to the chiefs at that time and was mainly a  26 tactic on our part to do that and defend their  27 interests in that area.  28 Q    When you say this five mile stretch of road that  29 hadn't been transferred to the province, can you  30 clarify what you mean?  Was it -- where was it  31 located in relation to Gitwangak?  32 A    It's located on the north side of the Skeena.  It  33 basically runs along the Skeena and it is on reserve  34 lands.  35 Q    Now, just to locate the court -- I just wonder if  36 you could just refer and indicate to the court  37 generally with reference to Exhibit 5 where you are  38 talking about this road was and where you are  39 talking about the West Skeena Logging that the  40 chiefs were concerned about?  41 A    The West Skeena Logging plans are all this area in  42 here, this whole area in here.  That has never been  43 touched yet and the other issue that the chiefs  44 discussed was around Tenimgyet's territory here from  45 Wilson Creek and that road is on the north side from  46 the main community to the outside of the reserve.  47 Q    And is that road that goes through the reserve there 6699  1  2  3  A  4  Q  5  6  A  7  8  Q  9  10  A  11  MR.  GRANT  12  MR.  PLANT  13  MR.  GRANT  14  Q  15  16  A  17  18  19  MR.  PLANT  20  21  22  23  THE  COURT  24  25  26  27  MR.  GRANT  28  29  30  31  32  33  34  35  36  THE  COURT  37  MR.  GRANT  38  39  40  MR.  PLANT  41  42  43  44  45  46  47  the only road access at this time on that side of  the river to the area they are looking for logging?  That's correct.  And so what did you do or what did the band do as a  result of that?  We developed a Statement of Claim and that's since  been filed in the courts.  And that's with respect to the road, whether the  province has a right to the road?  That's correct.  One of the other areas that you mentioned --  Sorry, excuse me.  When was this, please?  Well, yes, when did you make that decision to do  that in relation to when you became chief?  I can't remember correctly but it may be early in  '85, I can't remember.  It was around 1985  somewhere.  I made that comment, my lord, because I have made  certain objections in the past to the irrelevance of  this kind of evidence.  I repeat that objection but  I understand that the evidence will be heard.  Well, I am in counsel's hands.  I am not sure  whether it's going to be relevant or not.  I have  little difficulty seeing how a Statement of Claim in  another lawsuit is going to be of much assistance.  No, I am not -- and I am not producing the Statement  of Claim in the other lawsuit.  All I am asking the  witness, my lord, is that as you are I am sure well  aware, there is an issue about elected councils  versus hereditary chiefs in this issue and I was  using this as an example for him to explain -- how  to explain to clarify to the court how that  relationship worked.  That's what I -- that's the  example.  I am not intending --  All right.  I think that actually the provincial defendants may  have filed that Statement of Claim.  They filed or  listed, not filed it, listed it.  I am not sure.  I just want to be sure that my general theory of  objection is under -- is put here.  The plaintiffs  launched this lawsuit in October 1984.  With  respect, nothing that they can do -- nothing that  they have done since October of '84 in my submission  assists their case.  Actions may have been taken by  third parties or themselves, may assist the defence  in that case, but the fact that the Gitwangak band 6700  1 took some steps on the instructions as I take it of  2 the hereditary chiefs after a lawsuit — after this  3 lawsuit is commenced is not going to, in my  4 submission, at the end of the day assist the  5 plaintiffs.  But I am not asking for your lordship  6 to rule on the admissibility of the evidence because  7 it falls under the category of evidence where I have  8 taken similar objection in the past, and your  9 lordship has heard that evidence and I can't  10 distinguish that evidence from this.  11 THE COURT:  No.  All right, thank you.  12 MR. GRANT:  13 Q    I don't think there is any need to argue it, my  14 lord, at this point in time.  15 Now, one of the priorities that you did refer to,  16 and again, I'd just like to briefly allude to it at  17 this point, was with respect to the Fishery or the  18 Fishery by-law.  Can you explain to the court again,  19 and I am asking you this, to explain the  20 relationship between the band council and the  21 hereditary chiefs; whether the hereditary chiefs  22 were involved at all in that process and how you  23 came about to make that a priority?  24 A    I have been very clear with respect to Fishery, that  25 the Fishery is beyond the scope and any authority  26 with respect to the band council.  We have had a  27 very -- a very frustrating history with the  2 8 government agencies that I have -- that I have had  29 to deal with Fishery, major profiles have came in  30 around 1977 with undercover operations, and people  31 have been set up and been charged and nets been  32 taken, and it is really frustrating and makes you  33 very angry to see the treatment of our people,  34 especially when we have done this for years and  35 years that without even any interruption that we  36 have taken the salmon and we have used it.  We have  37 our own conservation laws of how we respect the  38 salmon, and yet, all of a sudden this major force  39 comes in and I have listened to the chiefs and our  40 elders that have been harrassed by government  41 departments with respect to Fishery and it makes  42 me —  43 THE COURT:  Mr. Grant, how can I really be helped by the  44 subjective feelings of the witness?  I have no doubt  45 he is expressing true beliefs but how can it be  46 helpful to me?  47 MR. GRANT:  Well — 6701  1  THE  COURT  2  3  4  MR.  PLANT  5  THE  COURT  6  7  MR.  GRANT  8  THE  COURT  9  10  MR.  GRANT  11  THE  COURT  12  MR.  GRANT  13  14  15  16  17  18  19  20  21  22  23  24  THE  COURT  25  26  27  28  29  MR.  GRANT  30  31  32  33  34  35  36  THE  COURT  37  38  39  40  41  42  43  44  45  46  47  To give effect to what he is saying would require me  to investigate the whole basis for and bona fides of  all the things that he is complaining about.  Well —  And it seems to me I am just starting down an  endless road, am I not?  No, my lord.  No.  We all have feelings and we feel strongly about  things.  But what's important --  I have to deal with facts.  Yes, and what's important here and what the  witness -- what I am asking the witness, what the  witness is introducing is explaining the basis as to  what was done and the relationship with the chiefs  and the band council and that is an issue that is  really been put centrally before you about this  theory, and I say a theory of the defendants that  these hereditary chiefs, it is all very nice and  good, but now they have all been replaced by band  councils.  Now, you have a person who was a chief  councillor and I am asking him to explain to you  what that relationship is.  I'd be happy to hear what the relationship is, but  why do I have to be left hanging in the air about  the bona fides or otherwise about these accusations  and counter accusations?  It seems to me they don't  lead us anywhere.  It is only to the point the question is -- is that  there has -- that the conduct, the activity of this  witness and of the hereditary chiefs isn't something  that as I would submit the defendants may well want  to say hangs somewhere in the air.  It is based on  the history of what they have been dealing with and  what's --  Maybe it is just that I am being exposed to too much  subjective evidence, Mr. Grant, and because it  really isn't something I feel that I can do much  about.  I am almost a captive audience to hear one  side of the story that isn't strictly relevant.  The  relationship and the dealings with the band council  by all means, but to colour it with these subjective  accusations which may be well founded for all I  know, I don't have any way of making that kind of a  valued judgment and I feel that I must try to  contain the evidence within some reasonable bound.  I think we are going beyond it at the moment. 6702  1 MR. GRANT:  Well, the only point I wish to press, my lord, is  2 that I think that it is really very relevant for you  3 to know that it is one thing to say the chiefs or  4 this chief councillor did X.  That's the fact.  But  5 it is another thing to say, well, why did you do X,  6 and that's the only point to which I think the  7 evidence is relevant is, why did you do it.  If you  8 are only left with you did X, there could be any  9 number of reasons, but it is, why did you do it.  10 THE COURT:  Then there have to be even more reasons.  Lawsuits  11 are tried every day by dealing with X.  We don't  12 have to go into subjective motivations and subtle  13 senses of frustration and anger I am hearing about  14 now which I can understand, I can sympathize with, I  15 wish they didn't happen, but this doesn't get me  16 anywhere.  17 MR. PLANT:  There is a small problem and that is that this is  18 already the subject of a separate action which -- in  19 which this witness has filed an enormous affidavit  20 material.  Application for an injunction went before  21 one of your judges of this court, gone on to the  22 Supreme Court of Canada.  Why this has to be  23 re-litigated in this context is also a matter that I  24 suggest to your lordship should take into account in  25 deciding whether or not to hear any more of this.  26 THE COURT:  Well, I am not going to stop you, Mr. Grant, but I  27 have to tell you that I don't think I need the  28 subjective feelings that I am being exposed to now.  29 MR. GRANT:  I appreciate your comments and I will conduct the  30 witness accordingly.  31 MR. PLANT:  I do have this one very practical concern.  It is to  understand that the soul purpose for which this  evidence is being adduced is to set a context for  instructions or the relationship between this  witness as a band council chief and the hereditary  chiefs of his village; in other words, that this is  not being adduced for the purpose of establishing  the truth of the facts which have led to the  witness' actions because, if that is, then that will  require me to call all of the Fishery officers and  to litigate in effect all of the issues --  And given the subjective basis for -- that operate  on their minds to cause them to do what they did.  PLANT:  Yes.  COURT:  That does put into great very sharp focus the  difficulties I am having with the present evidence,  Mr. Grant.  What do you say about your friend's  32  33  34  35  36  37  38  39  40  41  42 THE COURT:  43  4 4 MR.  45 THE  46  47 6703  1 suggestion about the limited purpose of the evidence  2 you are now adducing?  3 MR. GRANT:  Well, my lord, with all due respect, it is my view  4 that what is good for the goose is good for the  5 gander here, and that this witness is — I am not  6 asking this witness to describe events that have  7 been told to him, I am asking him to describe what  8 has happened.  He will be giving evidence of  9 specific events that have happened in the course of  10 his evidence relating to the Fishery.  He is now  11 dealing with it in the context of the relationship  12 between the elected chiefs and the hereditary  13 chiefs.  This issue of the Fishery, my lord, is an  14 issue that's been brought into very, very sharp  15 focus by both the Federal Defendants and the  16 Province.  Every single witness that I can recall  17 have been asked all about whenever they have been  18 fishing and getting licences at the coast and all  19 these things.  I mean, the reality of what is going  20 on and the importance of the Fishery to these people  21 is an issue that all parties know is a crucial and  22 important issue in this case.  We are not  23 re-litigating the issue of the injunction  24 application of a by-law before the Supreme Court of  25 Canada.  In fact, that document and by-law was  26 tendered by the Provincial Defendant and not us.  27 They have tendered that document and the evidence of  28 Art Matthews and I am asking him for the foundation  29 as to why this witness was a chief councillor at the  30 time --  31 THE COURT:  The defence have been confining themselves to X,  32 have they not, as you described it?  33 MR. GRANT:  Well, where it's -- yes, where it suits.  Where it  34 suits, yes.  I mean, I don't think -- when you see  35 the opinion evidence, for example, and other types  36 of things, I mean they go way beyond X into the  37 theories of all these things, and that will come out  38 in due course, I mean, but right now they can  39 crystallize and say, oh, this by-law exists and  40 that's all you should look at.  Well, I think it is  41 important that you know why that -- what happened  42 and why, and you have before you probably one of the  43 best witnesses you have yet to explain that because  44 he was directly involved in the process.  45 THE COURT:  Well, I am a prisoner here as you know, Mr. Grant.  46 I have no choice.  I have the greatest misgivings  47 about the use of subjective beliefs of the 6704  1 witnesses.  I don't know any way to control the  2 matter except to rely upon the responsibility and  3 good sense of counsel and, other than that, I think  4 I have to allow you to proceed.  5 MR. GRANT:  Well, I am not -- and I appreciate your comments,  6 and I am not endeavouring to elucidate the  7 subjective opinion of this witness, I am intending  8 and the objective is to elucidate the facts for you  9 to consider and I appreciate your comments.  10 THE COURT:  Mr. Frey?  11 MR. FREY:  The only point I wish to make, my lord, is that the  12 Attorney General of Canada has asked many times, did  13 you get a permit or licence.  We have never asked,  14 how did you feel about paying for that permit or  15 licence.  That question has never been put.  16 THE COURT:  Well, I know.  Go ahead, Mr. Grant.  17 MR. GRANT:  18 Q    Mr. Williams, you have heard the comments of the  19 court and what I'd like to ask you is if you can  2 0 explain what happened -- what has happened and what  21 facts have happened that led up to your involvement  22 with the chiefs in terms of the Fishery.  I assume  23 from what you said in terms of the priorities that  24 one of the priorities during your term of office was  25 the fishing by-law.  And if you could just explain  2 6 why that became a priority and what involvement the  27 chiefs had and why they were concerned about it if  2 8 they did have any involvement in it?  29 A    Well, I think it is difficult to try and explain how  30 the by-law was finally developed without telling the  31 bit about what the events have happened and what I  32 have just said are facts of what we have to go  33 through, and I could rattle on about the more facts  34 of that but I don't want to do that and we are so  35 helpless; we are helpless people when the force  36 comes on top of us, but the by-law was developed to  37 develop our own law in the reserve itself for at  38 least protecting what we have enjoyed for years and  39 that in recognizing that the chiefs have authority  40 over the Fishery.  If you read the by-law, it  41 suggests that the chiefs will have an Advisory  42 Board; they will have the control over the Fishery,  43 will support fishermen, and it was an extensive  44 process to get the by-law finally accepted by the  45 Minister of Indian Affairs.  46 MR. GRANT:  And was the by-law -- was a Gitwangak fishing by-law  47 accepted by the Minister of Indian Affairs? 6705  1  MR.  PLANT  2  3  MR.  GRANT  4  5  MR.  PLANT  6  MR.  GRANT  7  MR.  PLANT  8  9  10  THE  COURT  11  12  MR.  FREY:  13  THE  COURT  14  MR.  FREY:  15  MR.  GRANT  16  Q  17  18  19  20  A  21  22  Q  23  A  24  Q  25  26  A  27  Q  28  A  29  Q  30  31  A  32  MR.  GRANT  33  THE  COURT  34  35  MR.  GRANT  36  THE  COURT  37  38  MR.  GRANT  39  40  41  42  43  44  THE  COURT  45  MR.  GRANT  46  THE  COURT  47  MR.  GRANT  What is the relevance of that to the context of the  relationship between the chiefs and the --  This is a document that's been introduced by the  Provincial Defendant, my lord.  What document is that?  The Fishery by-law.  I thought you were suggesting that some  correspondence with the Federal Minister had been  introduced.  I think the question was, has the by-law been  approved by the Minister.  It should be phrased not disallowed.  I suppose there may be a difference, is there?  That is my understanding of the mechanism.  Yes, I know the mechanism very well, my lord.  Was  this by-law -- well, let me ask you this:  Were  fishing by-laws of the Gitwangak band disallowed by  the Minister in the past?  Probably only three occasions and the fourth  occasion it was -- it was allowed to go through.  And when was that fourth occasion?  It was on April 3, 1986, I believe.  And when were the earlier occasions when it was  disallowed?  It was about a year previous, around '85.  And was there one disallowed in 1983?  Yes, there was.  And were you involved in negotiating the passage or  the non-disallowance of those by-laws?  Yes, I was.  Now --  Did the by-laws purport to have any operation  outside the territorial confines of the reserves?  The -- no, but there is a history of that as well.  I am just trying to get a framework in my mind.  I  haven't read it for some time.  No, it talks about reserve waters.  In fact, my  lord, the Federal Crown is right now challenging  that it can't apply to any waters effectively that's  before the courts, so that -- but it applies to  reserve waters which as you will find is the rivers  going through --  Yes, right.  But that's in -- charges are laid as a result.  Fine, thank you. 6706  1 Q    Have you been involved in developing revenue making  2 projects in Gitwangak?  3 A    Yes, we have.  4 Q    And can you just give some examples of those, and I  5 am just at this point focusing on the relationship  6 of the chiefs, so I will come back to it in more  7 detail later?  8 A    The one -- the major one with the chiefs is the  9 bingo, gaming on reserve, gaming.  10 Q    And what was their involvement in the decisions with  11 respect to the bingo on reserve or gaming on  12 reserve?  13 A    They are the ones that have full control over the  14 licensing and ensuring that different community  15 groups have a licence, and it is totally within  16 their -- in their control.  17 Q    Now, you had described earlier that you had a  18 meeting with -- soon after you came into office and  19 as chief councillor in which you had set out a  20 number of priorities, and about how many people from  21 the community participated in that meeting?  22 A    Well, the meetings that we have had, we have had at  23 least 90 at every meeting we have had, and we try  24 and have at least three to four meetings a year.  25 Q    Now, what is the role of the Gitwangak chiefs, that  26 is, the hereditary chiefs that you have already  27 referred to?  What role do they play in the meeting  28 and how does it -- what's their involvement as  29 compared with say any other member of the band?  30 A    When you have about 90 people public meeting that  31 there is younger people in that meeting, there are  32 other members, chiefs, from -- like I said earlier,  33 from Kitwancool or Kitsegukla that are present at  34 that meeting and it is also very visible in my mind  35 that there is what I described earlier, the Eagles,  36 the Frog and the Wolf present at those meetings and  37 after I try and ensure that proper packages are  38 developed for those general meetings, I make every  39 effort to try and explain as much as I can in  40 English and in Gitksan and provide documentation,  41 letters or reports that we have done and organize  42 them so it is understandable to everybody at those  43 meetings and we generally discuss -- primarily what  44 we do is discuss the priority.  That's what we  45 discuss with the community and I, for myself  46 personally, I try and look at the elders, their  47 direction mostly.  And particularly, the chiefs of 6707  1  2  3  4  5  Q  6  A  7  Q  8  9  10  A  11  12  13  14  15  16  17  Q  18  19  20  A  21  Q  22  A  23  Q  24  25  A  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  Q  47  A  the community of Gitwangak and, I mean, the Eagle  and the Frog and Wolf.  I try and get a sense of  what they are saying or how they react to different  issues that we discuss.  Do they speak at these meetings?  Sometimes they do, yes, and sometimes they don't.  And do they -- do you consult with these chiefs,  these Eagles, Wolf and Frog chiefs outside of the  meetings since you have been chief councillor?  Oh, yeah, I discuss it -- I consult with them.  I  live right in the community and I go and visit -- go  and visit them or if I see them somewhere in the  community, we usually chat about and, by questioning  something in my own mind, I will ask them for advice  and see how the band is -- what the band is -- which  direction they will go.  Was there a proposal that you were involved in  preparing to set up a cold beer and wine store in  the village?  Yes, there was.  And did that proposal go through?  No, it didn't.  Can you explain the background as to what you did to  prepare it and then why it did not go through?  What we tried to do was to try and generate money  without relying on the Provincial Government or the  Federal Government, try and make our own money and,  through forms of taxation and we looked at various  opportunities existing in the community, and from  gasoline tax to sawmill tax, tobacco, we also looked  at beer and wine.  And beer and wine had, because of  the loophole in the Indian Act where if Indians  purchased under Section 87 of the Indian Act, we  wouldn't pay the $7 on a case of beer but what we  wanted to do was push the Province back of that $7  tax and we would occupy with maybe a $5 or $6 tax  and that would come back to the community.  That's  the proposal that we looked at.  We developed a  little package, cold beer store with coolers and was  beer and wine.  We presented that to the community  and that was -- that was overruled.  They said there  is no way that you'll be able to build that here or  even discuss it any further because of the negative  effects that alcohol has on the community.  So that  whole project was just shelved.  Who was it that overruled it?  Mainly the elders and the chiefs of that community. 670?  1  2  3  Q  4  5  6  A  7  8  9  10  11  Q  12  13  A  14  Q  15  16  A  17  Q  18  A  19  20  21  THE  COURT:  22  MR.  GRANT:  23  24  THE  COURT:  25  THE  SPELLER  26  THE  COURT:  27  MR.  GRANT:  28  Q  29  30  31  32  33  A  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR.  GRANT:  They are quite strong and sent a strong signal to  the council.  When you developed -- when you built your new hall,  was there any policies with respect to your hall  which the chiefs insisted upon?  Any time that they needed for meetings, they would  have access to it that there was a preferred rate of  rental to them and, if there was any feast that they  wanted, the feast would supersede any other activity  that may have been planned for that hall.  And you were -- there was a Fishery at a fishing  site known as Ankii iss in 1986?  That's right.  And that happened after the issuance of an  injunction relating to the Fishery by-law?  That's correct.  Who initiated that Fishery at Ankii iss?  That mainly came from a big feast that happened in  Gitwangak and I believe it was the 27th of June,  1986.  What's the location again, please?  Ankii iss, A-n-k-i-i one word i-s-s the second word;  is that right?  Thank you.  It is 1168.  Thank you.  It is on the map, Exhibit 30 or 31, my lord.  And  you said that that was initiated at this meeting.  Who was the initiators?  What parties — what I am  asking here, was it the band council, was it the  hereditary chiefs, or was it some combination?  No, it was never the band council.  Everything came  from the high chiefs and I said earlier that the  band council don't have anything to do with the  Fishery.  It's -- the chiefs own the Fishery and  that's their responsibility but the major issue that  particular feast was the injunction and the  insistence of the implications of the injunction and  the big issue was -- and solid message from all the  chiefs was that you cannot take a permit from the  Department of Fishery because later on in years to  come they always had this theory that, you know, you  don't have your rights anymore; you have taken  permits, and you have lost your rights to the  Fishery.  My lord, I am moving into another area.  It may be a 6709  1 good time to break.  2 THE COURT:  All right, thank you.  3 THE REGISTRAR:  Order in court.  Court will recess.  4  5 (PROCEEDINGS ADJOURNED AT 11:13 A.M.)  6  7 I hereby certify the foregoing to be  8 a true and accurate transcript of the  9 proceedings herein, transcribed to the  10 best of my skill and ability.  11  12  13  14  15  16 TANNIS DEFOE, Official Reporter  17 United Reporting Service Ltd.  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  4 7        (PROCEEDINGS RESUMED PURSUANT TO A SHORT ADJOURNMENT) 6710  G. Williams (for plaintiff)  Submissions by counsel  1 THE REGISTRAR:  Order in court.  2 MR. PLANT:  My lord —  3 THE COURT:  Are there bells ringing outside or has this case  4 just been going on too long for me?  There were  5 bells ringing lower down, but no fire bells ringing  6 out there?  7 THE REGISTRAR:  No.  8 THE COURT:  Well, let's pretend they're not ringing.  9 MR. GRANT:  Maybe they don't care about this courtroom.  I hope  10 not.  11 My lord, I have bells ringing in my ears for  12 another reason.  I wish to advise the Court that at  13 the break Mr. Plant's colleague served this witness  14 on the stand with a subpoena to produce documents  15 tomorrow morning, all documents in his possession.  16 I want to say this because I take extreme exception  17 to this process.  Mr. Plant asked this morning about  18 the rest of the documents in the document book.  I  19 said in good faith they were getting copied.  I was  20 going to deliver all of them to him.  I think it's  21 quite unnecessary, my lord, while the witness is on  22 the stand, for a subpoena to be given to him about  23 documents in his possession, and I would ask that my  24 friend, if he's got concerns, he correspond with  25 counsel.  26 MR. PLANT:  My lord, if I may, I have a submission to make with  27 respect to some of the evidence which your lordship  28 heard this morning, and this is a submission that  29 your lordship has heard before but in a different  30 context.  31 I heard with interest this witness say that at the  32 three or four meetings he held annually while he was  33 chief counsellor of the Gitwangak Band while some 19  34 or so persons were in attendance, he took great care  35 to ensure that proper packages were developed for  36 those meetings.  Documents were prepared in the  37 forms of letters, reports, so everybody could  38 understand what was going on in English, Gitksan and  39 so on.  40 I heard the witness give evidence concerning a  41 proposal to set up a cold beer and wine store in  42 respect of which the band council or this witness  43 developed a, quote, "package", unquote.  44 I heard this witness give evidence with respect to  45 the community hall in Gitwangak and the policies  46 that exist with respect to the use of that hall.  47 It would surprise me, indeed, if those policies 6711  G. Williams (for plaintiff)  Submissions by counsel  1 are not expressed in writing.  I have had disclosure  2 of none of those documents or any similar documents.  3 What I did get was this, my lord:  On Tuesday of  4 last week I received a summary of Mr. Williams'  5 evidence.  I remind your lordship that to the best  6 of my understanding, Mr. Williams is not a  7 plaintiff, either named or represented as such in  8 this action, and, therefore, while -- while -- and,  9 therefore, my friend, Mr. Grant, does not act for  10 him in this case.  11 The summary of evidence says in part and I quote:  12  13 "He will describe his role as an elected  14 chief counsellor of Gitwangak Band and the  15 relationship between the Gitwangak Band  16 and the hereditary chiefs of Gitwangak.  17 He will refer to some of the events that  18 occurred in Gitwangak over the last few  19 years while he was the chief counsellor."  20  21 I pause to -- to observe the obvious, my lord, namely  22 that Mr. Williams is probably a person most  23 knowledgeable concerning those events that have  24 occurred while he was the chief counsellor.  25 And I continue:  26  27 "He will explain, quote, 'devolution',  28 unquote, and the relationship between  29 devolution and the hereditary chiefs."  30  31 I read my friend's summary of evidence.  I sent him a  32 letter on the 26th of May as follows:  33  34  35 "In view of the subjects described in your  36 summary of evidence of Glen Williams, I  37 ask you to ensure that all documents  38 relating to Mr. Williams' election as  39 chief counsellor of the Gitwangak Band,  40 his performance of his duties as chief  41 counsellor and all activities of the  42 Gitwangak Band under his leadership are  43 disclosed.  Further, if any documents  44 exist concerning the subjects described in  45 the second sentence of the second  46 paragraph"...  47 6712  G. Williams (for plaintiff)  Submissions by counsel  1 I pause there.  That refers to the events that  2 occurred in Gitwangak.  3  4  5 "... and the final paragraph of your summary  6 of evidence"...  7  8  9 And that's the devolution paragraph.  10  11 "... which are not already disclosed, I ask  12 for their immediate disclosure."  13  14  15 Mr. Grant replied to me as follows:  16  17 "I wish to advise that as has always been  18 agreed by counsel on this case, I am  19 regularly reviewing documents for  20 relevance."  21  22  23 Oh, excuse me.  The last paragraph of my letter was:  24  25 "I reserve the right to object to any  26 questions on these subjects if full  27 disclosure has not been made."  28  29 Mr. Grant replied as follows:  30  31 "I wish to advise that as has always been  32 agreed by counsel on this case, I am  33 regularly reviewing documents for  34 relevance."  35  36  37 I take no issue with that, my lord.  38  39 "Your letters request for, quote, 'all  40 documents relating to Mr. Williams'  41 election as chief counsellor of the  42 Gitwangak Band, his performance of his  43 duties as chief counsellor and all  44 activities of the Gitwangak Band under his  45 leadership', unquote, is vague, general  46 and impossible to respond to.  However, I  47 can assure you that I am engaged in the 6713  G. Williams (for plaintiff)  Submissions by counsel  1 search of documents and anticipate  2 producing a supplementary list of  3 documents which shall refer to relevant  4 documents relating to those matters."  5  6  7 Mr. Grant continues:  8  9 "I am curious as to how you are going to  10 object to questions on these topics if  11 there is, quote, 'not full disclosure',  12 unquote, and how you will be able to  13 determine whether or not there is full  14 disclosure.  If you have some independent  15 means of acquiring these documents, it is  16 obviously not necessary for me to disclose  17 them."  18  19 I pause to observe, my lord, that that is not my  20 understanding of the obligations under the rules of  21 Court.  22 And Mr. Grant concludes:  23  24  25 "Of course, you will be able to examine Mr.  26 Williams with respect to this topic to the  27 extent that it is relevant to the issues  28 in the case."  29  30  31 My lord, we're travelling down an awfully dark  32 road, or at least I am, and I know that there are  33 trees on either side of the road, but I don't know  34 where the road is going, although, in my submission,  35 this road takes the plaintiffs nowhere that can  36 possibly be of any assistance to you.  But what I do  37 know is that I don't have a flashlight to see the  38 trees, and my friend isn't even giving me the  39 batteries.  40 Now, this may sound like a complaint and I am  41 complaining, but I go further than that, my lord.  I  42 ask you to say -- to rule in the circumstances that  43 the evidence which you have heard concerning this  44 witness' performance of his duties as chief  45 counsellor be ruled inadmissible.  Those are my  46 submissions.  47 THE COURT:  Mr. Frey? 6714  G. Williams (for plaintiff)  Submissions by counsel  1 MR. FREY:  I have no submissions, my lord.  2 THE COURT:  Mr. Grant?  3 MR. GRANT:  Well, of course I ask that you not rule that  4 evidence inadmissible.  As I indicated, and as will  5 become apparent, this witness has been involved in  6 the devolution -- quote, unquote, 'devolution'  7 process, which there was some evidence of, and he  8 will explain that as well as his role as chief  9 counsellor.  10 As I explained this morning, as I explained to my  11 learned friend in my letter, the potential plethora  12 of documents and papers that I have to review are  13 innumerable and I'm doing that.  I'm doing that  14 intensively, and I've been doing it ever since,  15 doing it with respect to this witness.  Short of  16 getting a U-haul and bringing down the filing  17 cabinets of the Gitwangak Band Office, I think the  18 best approach has been to try to disclose.  19 Now, my friend refers, for example, to something  20 about a proposal on a, quote, "beer and wine store".  21 There's absolutely no problem, if there's something  22 in writing on that point, to put it forward.  I  23 personally don't think that that proposal is  24 relevant.  25 MR. PLANT:  Well, why has my friend introduced evidence on it?  26 I'm totally guided by my friend's determination of  27 what is relevant.  I didn't ask to hear evidence  28 about a cold beer and wine store.  29 MR. GRANT:  If my friend would let me finish.  I take the view,  30 my lord, in the course in what I was elucidating  31 from the witness was the decision making of the  32 chiefs vis-a-vis the band council, and he referred  33 to that that as an example.  There are documents  34 related to the programmes and to the development of  35 the band council and documents relating to  36 devolution.  And as I've indicated, I did not call  37 over at the break because I was meeting with the  38 witness, but I anticipate that I'm going to produce  39 the balance of those and before noon or at noon, and  4 0 they're the relevant documents that I have reviewed.  41 But that's the best I can do.  I mean, for my friend  42 to say now -- I don't know whether I'm touching a  43 very sharp nerve or what, but for my friend to say  44 now to rule inadmissible the evidence of this  45 witness when the very issue of elected councils  46 vis-a-vis hereditary chiefs is an issue that's been  47 raised four-square by the defendants, I'd say, is a 6715  G. Williams (for plaintiff)  Submissions by counsel  1 little bit difficult, if not somewhat outrageous,  2 but I'm not in a situation here of endeavouring  3 to -- to send my friend down some dark midnight  4 road.  What I am trying to do is to elucidate the  5 evidence for the case relating to taking this  6 witness as an example and his history, how the  7 hereditary chiefs interact with the band council.  8 That's very, very relevant.  And there will be  9 evidence about what he's done as the chief  10 counsellor in more detail, which we will come to.  11 And, you know, it --  12 THE COURT:  Well, I want to avoid getting into counsel's brief  13 and it may be -- and I don't expect counsel to  14 respond.  It may be that there was no prior  15 knowledge that the witness was going to refer to the  16 package as he prepared for the meeting.  But now  17 that he's mentioned them, it seems to me that they  18 probably should be disclosed.  It seems to me  19 that — that I  20 should assume -- these assumptions are frequently  21 made, but the system is intended to be offered so  22 that counsel knows what the witness is going to say.  23 And there should be production that is at least  24 commensurate with that.  I think a subpoena to  25 produce all documents relating to the witness'  26 stewardship as counsellor or chief counsellor is  27 cast in a net far too wide, but I certainly think  28 that counsel are entitled to have produced those  29 documents that relate specifically to what the  30 witness gives evidence about.  And -- and I have to  31 say that probably they should have been produced  32 before the witness went in the box and indeed  33 sometime prior to the time the witness went in the  34 box, but we're past that now and there's no point  35 indulging in regrets on that score.  But I think,  36 Mr. Grant, that the witness should make arrangements  37 to have produced the documents that relate to those  38 matters upon which he's given evidence.  39 MR. GRANT:  I agree, and I have no difficulty with that at all,  4 0 my lord.  41 THE COURT:  Both those matters to which he has referred and  42 those to which he will refer to in the balance of  43 his evidence in chief.  Go ahead, please.  44 MR. GRANT:  I just wish to say that I will canvass as well with  45 him before the end as to other anticipated  46 documents.  It's sometimes difficult to determine  47 all the potential documents that may be alluded to. 6716  G. Williams (for plaintiff)  In chief by Mr. Grant  1 THE COURT:  Thank you.  2 MR. GRANT:  3 Q   Just before the adjournment, Mr. Williams, you did  4 describe these meetings and -- and you've also  5 described the priorities.  Can you explain why or  6 whether the issue that's actually before the Court  7 in this case, the issue of the chief's ownership and  8 jurisdiction over their territories, if that was  9 considered as a priority at these meetings between  10 the chiefs and the band council and why it was not  11 on your list of your top three priorities?  12 A  Well, that's an ongoing process already.  You know,  13 the tribal council -- and there's already another  14 form of how the ownership and jurisdiction is --  15 there's a process for that already, and, you know,  16 we're conscious of that as from the band council.  17 We're quite aware of what the activity is happening  18 there.  What we try and work out with the chiefs  19 locally is to try and get in to protect some of the  20 specifics of our rights, try and develop some things  21 that will not be -- that doesn't -- that it's not  22 eroded, is lost.  23 Q   Now, you mentioned before the break about, as an  24 example, the beer and wine store and the decision of  25 the chiefs there.  Can you explain?  How did that  26 happen in the context of the meeting?  How did they  27 express -- how did they overrule the decision?  In  28 other words, who spoke?  And I gather from these  29 meetings -- you say there's 90 or 100 people.  That  30 includes chiefs and also regular people from the  31 village; is that right?  32 A   Yeah.  That's correct.  33 Q   And can you explain how they interreact, that is the  34 chiefs and the nonchiefs in the village, in the  35 decision making?  36 A   Generally what happens is that -- is that there's a  37 fair bit of discussion on certain issues.  There's a  38 fair bit of discussion and different individuals,  39 whether they're young or older, make -- make their  40 views known publicly, and in some cases where things  41 are very difficult, the chiefs will listen and if  42 things are not going properly, it's -- they will  43 speak the last -- they're the last ones to speak,  44 and it generally overrules what the younger people  45 are saying.  And even the council, they're the  46 ones -- if they say the final word, nobody else  47 speaks after that, and that's finished.  They have 6717  G. Williams (for plaintiff)  In chief by Mr. Grant  1 the final word on it.  2 Q   So it's not -- in the meetings the decision isn't  3 generally by, like, a majority vote of all the  4 people present, for example?  5 A   No.  It's -- in some cases it's the chiefs that have  6 the final -- the final say, and a lot of younger  7 people and middle age people really respect that.  8 That's -- you can't -- we've been trained, you know.  9 You can't rebut or challenge what an elder or high  10 chief is saying.  11 Q   Now, I'd like to move into an area, a specific area in  12 which you've been involved, and, in fact, you've  13 indicated that it's been a priority of the band  14 since you've been the chief counsellor, and that is  15 the area of housing.  Now, could you explain to the  16 Court the history of -- or what you came across when  17 you became chief counsellor in terms of the housing  18 concerns and Gitwangak and the history of that?  19 A   There is approximately -- you know, the housing  20 situation wasn't documented properly.  By that what  21 I mean is visually see some documents as to what the  22 need is.  That's what we began to do, is to analyse  23 that.  And there was a great need for — for  24 additional houses, and I think at that time I  25 believe our need was for 60 new homes, and there was  26 about approximately nearly -- in fact, probably most  27 of the houses that existed at that time needed  28 greater repair, renovations, and -- and it was for  29 us to try and look at ways to try and — to try and  30 get additional houses, to -- and to repair the ones  31 that needed to be repaired.  And the -- at a meeting  32 we had, we explained that situation.  The direction  33 was given that we should try and -- try and get 60  34 houses.  And that's what we began to do, to look at  35 programmes that are in existence with CMHC.  We  36 looked at social housing, the social housing  37 programme.  That was the new programme that is out,  38 was made available to Indian communities.  39 Q   Is that a programme of the Department of Indian  40 Affairs or CMHC?  41 A   CMHC.  It forced us to look in that area, because what  42 we get is approximately $120,000 a year, consisting  43 of four subsidies of about $30,000 a subsidy.  Yet  44 we needed 60 houses, and you can only build four.  45 And even with the four, you can't build a house in  46 the north for that.  A house is approximately  47 $60,000, and with the need that we had and little 671?  G. Williams (for plaintiff)  In chief by Mr. Grant  1 bit of money that we had, we were forced to look at  2 other programmes.  And there's all the other issues  3 that affect housing, the subdivision development,  4 water, and those were all taken into perspective.  5 But we were denied any access to -- to the social  6 housing programme because of a default that occurred  7 for the construction of approximately 22 homes in  8 about 1975 to 1977.  Those were -- it was -- in that  9 time period there was a new programme called AHOP.  10 That represents assisted homeowners programme.  That  11 was made available to reserves at that time.  And  12 these -- this programme was all individual loans.  13 And the amount of the loan at that time was  14 approximately $747,000.  15 THE COURT:  That's for the band?  16 THE WITNESS:  Yes.  For 22 houses.  There were individual loans  17 with a ministerial guarantee on it.  18 MR. GRANT:  19 Q   Can you explain?  Who was the loan to?  20 A   The loan was to individuals.  21 Q   Individual band members?  22 A   Individual band members.  23 Q   And what do you mean by "ministerial guarantee"?  24 A   The Minister of Indian Affairs guarantees to CMHC  25 that -- that the loans will be repaid from the  26 band's trust fund.  27 Q   And how does the band have -- what does its trust fund  2 8 come from?  29 A   The trust fund comes from -- the trust funds are lease  30 revenues, gravel sales, timber sales or whatever.  31 Q   So where the band earns money from the reserves?  32 A   That's correct.  33 Q   Sorry.  Go ahead.  34 A  All those loans had been defaulted in about 1981.  The  35 Department of Indian Affairs insisted the band had  36 to repay that $747,000 prior to any access to any  37 programmes, and they even threatened at one time to  38 cut off the $120,000 until the whole amount was  39 repaid.  And they took out $23,000 out of the band's  40 trust funds as well.  That was the only amount they  41 got.  42 Q   How much was it?  43 A   Twenty-three thousand dollars.  And we began  44 negotiations in about February of 1986 to try and  45 work out an arrangement of how that issue could be  46 resolved.  We were finally able to agree to some  47 terms in August of 1986 or '87.  It may have been in 6719  G. Williams (for plaintiff)  In chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  THE  MR.  COURT:  WITNESS  GRANT:  Q  August of '87.  But basically our agreement was to  repay half of the 747,000 by giving up one housing  subsidy a year.  That's from the $120,000.  Because  of the way our position in those negotiations were,  that if we're going to deal with this situation of  repayment, then we should look at all the need, the  22 houses plus the renovations.  That's how we  approached the problem with the department.  And the  final -- what our position has always been is that  because CMHC and the department didn't implement the  programme properly so individuals in 1975 clearly  understood the mortgage arrangements, they had to  accept part of the blame and they could pay off half  of it, the balance.  But they have never since  accepted that.  We've only agreed on half of it and  we've since repaid approximately $70,000 back to the  government.  And there's still an ongoing process of  how to resolve the balance of the $747,000.  Well, the government hasn't accepted the 50 percent?  :  No, they haven't.  You said that the reason that was is that because the  government did not implement the programme properly.  If I could just move back to your work history, you  were the band social worker during part of that time  or shortly thereafter in 1977 or 78; is that right?  A   Yes, I was .  MR. GRANT:  And from your observations at that time, can you  explain what you mean when you say they didn't  implement it properly?  MR. PLANT:  I'm curious as to how the explanation will assist  the resolution of the issue of the relationship  between the chiefs and the band council.  THE COURT:  Again, Mr. Grant, are there not possibly two sides  to this story?  Is it going to be helpful to only  get one of them?  MR. GRANT:  It's not a question of two sides to the story.  I'm  asking him about facts.  I'm asking the witness  about the facts as to what happened.  I mean, he  said that the programme was not implemented  properly, and I agree that that could be taken as a  subjective statement, but what I'm asking the  witness is what happened.  THE COURT:  Does it matter whether it was implemented  properly --  MR. GRANT:  Well —  THE COURT:  — in the context of this lawsuit?  Of course it 6720  G. Williams (for plaintiff)  In chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  MR.  GRANT  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  THE  COURT  33  MR.  GRANT  34  35  THE  COURT  36  MR.  PLANT  37  38  39  THE  COURT  40  MR.  PLANT  41  THE  COURT  42  MR.  PLANT  43  MR.  GRANT  44  Q  45  46  47  A  matters in another context, but it seems to me that  what I know now is enough of a framework.  I know  that there's an allegation that the programme wasn't  implemented properly and this shouldn't be a  responsibility of the band, but the reality is that  it's being treated as a responsibility of the band,  and do I need to know any more than that unless I'm  going to -- unless I'm going to pronounce on this  question of whether the programme was — was carried  out properly, in which case I've got to investigate  that whole question.  Surely no one wants me to do  that.  What I want --no.  I don't want you to do that.  What I want you to -- what I want you to have a  picture of in dealing with the issues in this  litigation is the efforts made by the Gitksan and  the Wet'suwet'en within existing programmes, which  are, I would say, raised by the defendants to --  within existing programmes to accomplish their ends,  and if you bear with me, my lord, within the  evidence of this witness itself, the linkages  between these things and the issues in this case  will become apparent, and that it's important  that -- the efforts of the Gitksan and the  Wet'suwet'en within the contemporary context.  There's, of course, a conceptualization or a thesis  of, you know, that everything is changed and that  the aboriginal rights are something that's old.  What I'm asking this witness of is of what has  happened much more recently and the connections  between that.  Well, if —  Maybe I can broach it with another question which  will resolve your concern.  All right.  I'd like to know the paragraph in the pleadings that  this evidence goes to, and it may be that there is a  paragraph that it goes to.  If there is --  At the moment I'm having trouble finding it.  I think it's in your defence.  It's certainly not in the statement of claim.  Prior to the implementation of this 1975-1977  programme, can you explain what was the housing --  how housing was dealt with in Gitwangak?  It was mainly -- mainly used -- they mainly used the 6721  G. Williams (for plaintiff)  In chief by Mr. Grant  1 housing subsidies that they had that was available  2 to them at that time and used labour dollars to try  3 and finish off -- construct and finish off a house,  4 and generally the houses are never completed and  5 probably never completed to standard.  6 Q   And what was the educational level of people in the  7 Gitwangak Band who were -- who were -- who were the  8 individuals involved in these loans?  What was the  9 average educational level?  That is, what level of  10 education of people in the band completed in that  11 period of time, '75-'77?  12 A   I don't think they had finished high school, a good  13 majority of them.  14 Q   Do you know why there was a default of all of these  15 loans between 1975-1977 and 1985-'86 when you were  16 negotiating?  17 A   The concept of mortgages only was introduced at that  18 time, mortgages for houses on reserve.  That was a  19 new concept to the community, particularly for  20 houses.  And the way the land tenure is on the  21 reserve, not even an individual living on a parcel  22 of land owns a house, owns the land or a house.  You  23 cannot mortgage your house.  You cannot mortgage  24 your property.  It's of very little value to -- to  25 any bank.  Plus the interest rate was quite high at  26 that time and mortgage payments for houses was --  27 was a very new concept to the people living on the  28 reserves at that time.  29 Q   Has the band council taken efforts to recover on these  30 loans from the individual homeowners or the  31 individual band members since -- since the defaults?  32 A   No, we haven't.  33 Q   Can you explain why not?  34 A   Because the -- the balance of the 747,000 hasn't fully  35 been agreed to as to how -- as to how that  36 arrangement could be worked out and how does that  37 relate to the individuals living in those -- in  38 those homes, how the final settlement would relate  39 to what kind of arrangements the council and the  40 individuals living in those homes.  41 THE COURT:  I'm sorry.  What's happened to the homes?  42 THE WITNESS:  They're still there.  People are still living in  43 there.  44 THE COURT:  Completed or incomplete?  45 THE WITNESS:  Some of them are completed and some of them are in  46 great need of repair.  47 THE COURT:  And are any payments being made of any kind? 6722  G. Williams (for plaintiff)  In chief by Mr. Grant  1 THE WITNESS:  No.  There hasn't been.  2 MR. GRANT:  3 Q   If you resolve the amount, the 50 percent, with the  4 federal government, if you had done that while you  5 were the chief counsellor, would you have initiated  6 actions for either eviction of these people from the  7 homes or for recovery of the monies from them?  8 A   You have to look at the different alternatives and  9 options that could be available.  Eviction is  10 impossible because where else are people going to  11 go?  12 Q   Prior to entering into the agreement to pay back the  13 department 35,000 a year out of the housing subsidy,  14 did you have any consultations with the people of  15 the community and/or with the hereditary chiefs of  16 Gitwangak regarding that?  17 A   Yes, we did.  18 Q   And what happened at that consultation and who was it  19 with?  20 A   It was mainly with the community meeting again, and we  21 presented all the problems that we had.  22 THE COURT:  Who was this meeting with?  23 THE WITNESS:  The community, a general meeting with the  2 4 community.  25 THE COURT:  But not — not with CMHC or the Department of Indian  26 Affairs or anything like that?  27 THE WITNESS:  No.  2 8 THE COURT:  No.  Thank you.  29 THE WITNESS:  We presented what we had available to us, what  30 information we had, and we presented that to the  31 community, and it was agreed.  If they didn't agree,  32 then we wouldn't have entered into an agreement with  33 the department.  34 MR. GRANT:  35 Q   Was there debate among the hereditary chiefs as to  36 whether or not you should have done this, you should  37 do this, at the time of that meeting?  38 A   Housing is really a great debate because of the need  39 and, yes, there was a great debate, especially in  40 respect to getting into a social housing programme.  41 I can recall those meetings very well.  That there  42 have been extensive debate and at times there were  43 some reluctance, particularly with some of our  44 chiefs, and what we did again is, well, if you  45 people have any good ideas of how you want to deal  46 with your housing need, then let us know.  But we  47 said to them, "Look it, this is the fact, that you 6723  G. Williams (for plaintiff)  In chief by Mr. Grant  1 need this many houses.  You only have $120,000 a  2 year from the government.  You can only build four  3 houses and you probably will never be able to build  4 four houses.  This is the way that we want to see  5 how to resolve the 747,000.  This is a way to get  6 more houses on the social housing programme."  We  7 put that back out to them and they have another  8 round of debate and then they finally agreed that we  9 should -- that was the only option that we had.  10 THE COURT:  Did the community agree to the 50 percent?  11 THE WITNESS:  Yes, they did.  12 MR. GRANT:  13 Q   And when you said that they agreed, are you referring  14 to all of the people -- all of the people in the  15 community or are you referring more specifically to  16 the hereditary chiefs of Gitwangak?  17 A   It was -- again, the way public meetings are held is  18 that you have a lot of younger people that will try  19 and influence or have good discussion over certain  20 issues, and particularly in housing, and what we try  21 and do is try and get direction from -- from the --  22 from the community meeting.  And sometimes it's  23 not -- it's either going to go one way or the other  24 way, whether it's yes or no, but when the final  25 crunch comes, it's the elders and the chiefs of the  26 community that make that decision, and the younger  27 people will not challenge the decision of the -- of  28 the elders and the chiefs of that community.  29 Q   And that's what happened regarding this housing  30 decision?  31 A   That's what happened.  32 THE COURT:  Well, Mr. Williams, how are you going to -- how are  33 you going to provide housing for the community and  34 pay back 50 percent of the $750,000 at the same  35 time?  36 THE WITNESS:  What we do is get involved in a -- what's called a  37 social housing programme.  38 THE COURT:  I see.  So if you made your 50 percent deal, you  39 were qualified for some other programme?  40 THE WITNESS:  Yes.  And we've built 22 houses so far on that  41 programme.  42 THE COURT:  Well, I'm sorry.  Then I'm missing something.  4 3 MR. GRANT:  44 Q   I think because it's the same number.  45 When you say you built 22 houses with that  46 programme, this is after you made the agreement for  47 50 percent repayment.  Did you then make -- enter 6724  G. Williams (for plaintiff)  In chief by Mr. Grant  1 into further agreements for further social housing  2 in the last few years?  3 A   Yes.  I ensured that it was part of the agreement.  4 THE COURT:  I thought you told me that the government had not  5 accepted the 50 percent deal?  6 THE WITNESS:  They accepted the repayment plan, but we agreed as  7 part of ongoing negotiations that we would resolve  8 that but meanwhile let us have another 22 new units.  9 THE COURT:  This is so that — so the 50 percent deal was  10 accepted?  11 THE WITNESS:  Yes, it was.  12 THE COURT:  All right.  Thank you.  13 MR. GRANT:  I think I should clarify the point.  14 THE COURT:  Well, I have it.  That's all right.  I think I have  15 it now.  16 MR. GRANT:  17 Q   The agreement -- could you just tell us the status of  18 the agreement between you and the government now  19 regarding the 747,000 plus the additional social  20 housing?  What was agreed to what would happen?  21 A   The major points that we had in the agreement was that  22 half of the repayment of the 747, return our trust  23 funds, provide us 22 social housing units by a  24 certain date, and the other point to the agreement  25 was assist in accessing the renovations programme.  26 Those were the major points.  27 THE COURT:  But your nonsocial housing subsidy is now reduced by  28 $30,000 a year?  29 THE WITNESS:  Yes, it is.  3 0 MR. GRANT:  31 Q   35,000.  32 A   35,000.  33 THE COURT:  Thirty-five.  Thank you.  34 MR. GRANT:  35 Q   While I'm on this, could you tell the Court what is --  36 what is today's need within the community for  37 housing units?  That is the immediate need today,  38 not for something that will be obsolete in two or  39 three years but right now?  40 A   Thirty-five more new houses for band members prior to  41 C31 impact.  42 Q   Okay.  Can you explain to the Court what you mean by  43 "C31 impact" and what you referred to?  44 A   The C31 is a bill by the federal government that  45 reinstates nonstatus Indians.  That's what Bill C31  46 is.  It puts them back on the band list again, and  47 they are status Indians. 6725  1  2  3  4  5  6  7  8 MR.  9 THE  10 THE  11 MR.  12  13  14  15  16  17  18 MR.  19  20  21  22 MR.  2 3 MR.  2 4 MR.  25  26  2 7 MR.  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  G. Williams (for plaintiff)  In chief by Mr. Grant  Q   Now, once those persons are reinstated onto the band  list, what impact does that have on the housing need  in your community?  A  We will require additional housing units for those C31  families returning back to the community, and I  believe for this year I think there's approximately  11 that we have targeted for it, but --  And those 11 --  I'm sorry.  Eleven members or eleven houses?  Eleven houses.  GRANT:  COURT:  WITNESS  GRANT:  Q  And those 11 houses, do those reflect Bill C31 people  who have moved back to the reserve?  A   Yes, or planning for 1988.  Q   So your total housing need with that will be 46  housing units?  A   That's correct.  GRANT:  And in terms of your housing this year, how many --  and including the social housing that you have  planned for this year, how many housing units are  you going to be able to construct this year?  PLANT:  Who is "you" in that context?  GRANT:  The Gitwangak Band.  PLANT:  Of which -- as I understand it, this witness is no  longer a member, or I may have an incorrect note  from the evidence.  GRANT:  Q   He's a member of the band.  He's no longer the chief  counsellor.  A   Four has been planned right now.  Q   I'll refer to this further later, but is this --  you -- you have been involved in the devolution of  Indian Affairs to the bands in the Gitksan-Carrier  District over the last two years?  A   Yes, I have.  Q   And are you aware of the condition -- that is the  housing needs of other communities in the  Gitksan-Carrier -- the other bands in the  Gitksan-Carrier District as far as their functions  in that devolution?  A   Yes, I am.  Q   And is the needs that you described and the actual  ability to only construct four houses, is that  typical or atypical in the sense is that unique to  Gitwangak or is it typical of the other communities  as well, having similar needs?  A   It's typical amongst the other communities as well. 6726  1  Q  2  3  4  5  A  6  7  8  9  10  Q  11  A  12  13  14  15  16  Q  17  A  18  19  20  Q  21  22  A  23  Q  24  25  26  27  28  29  A  30  31  32  33  34  35  36  37  Q  38  A  39  Q  40  41  42  43  44  45  46  47  G. Williams (for plaintiff)  In chief by Mr. Grant  Well, what I'd like to ask you is what happens on the  reserve when you say you have a present need of 46  houses and you can only build four?  Where do these  other people live?  Well, some of them live -- there's usually one -- some  houses there's usually about four -- four families  to a house, and I know of some houses in our  community where up to 15 are living in a  three-bedroom unit.  Fifteen people?  Yeah.  And some of them are living with their parents,  living with their grandmothers.  Mainly with their  parents or their grandparents, just -- some of them  live in the nonlndian community adjacent to our  community.  Is that the community known as Gitwangak Valley?  That's right, yeah. They live right in, like I said  earlier, with other members of their families, and  some cases there's up to 15 people in the house.  So the effect of this is that there's overcrowding in  many of these houses?  Yes, there is.  You've described yesterday your work history and even  before being chief counsellor you were the band's  social worker and an acting band manager.  What have  you observed as to the effect of -- of this housing  shortage on the community?  What is the social  effect on the people in the community?  It -- some of the things you're -- a lot of bitterness  towards the band council.  There's family disputes  where you have two or three families living in one  house.  It's really difficult because you want --  there's usually fights that occur or disputes that  occur there, and some situations it leads to alcohol  abuse.  And those were some of the -- some of the  problems that arise from overcrowding.  And you've seen that yourself?  Yes, I have.  I'd like to move to another area, Mr. Williams, and  that is something you alluded to when you talked  about the priorities of the band.  And this is the  relationship with CN.  And I believe when his  lordship asked you, you explained very summarily  what the basis of that was.  Can you explain what  the concerns were, what concerns the hereditary  chiefs expressed to you in 1985 when you came in  regarding CN and what had been going on before that? 6727  G. Williams (for plaintiff)  In chief by Mr. Grant  1 What had led up to that that you know of?  2 A   Previous to 1985 there was approximately six years of  3 negotiations with CNR.  We had -- the community  4 had -- was given a grant from the Primate Worlds  5 Relief Development Fund for $10,000 to research  6 the -- to research documents that pertain to the  7 transaction that occurred around 1909-1910 of how  8 the Grand Trunk Pacific Railway, now the CNR,  9 acquired an industrial park and a right of way  10 straight through the community of Gitwangak.  The  11 opinion was brought forward to the community and  12 suggested that the band's case was fairly strong  13 that the transaction was not proper.  Individuals  14 were not -- there was not permission by the  15 community, and that the whole transaction was  16 illegal and that the band still owned the right of  17 way and the industrial park.  18 Q   Can you just explain for the Court what you mean when  19 you talk about the right of way and the industrial  20 park?  21 A   The whole lands that were transferred to -- to CNR now  22 amounts to approximately 99 acres, I believe.  23 That's the right of way, the main line of CNR.  In  24 addition to that, there's approximately 29 acres of  25 industrial park right alongside the -- the right of  26 way where a sawmill is located on now, the old  27 Hudson Bay Store was located, and there was other  28 tenants on that property.  29 Q   Is that the Weststar Sawmill?  30 A   That's correct.  31 Q   I'm sorry.  Go ahead.  32 A  And as I was saying, the negotiations had took place  33 after the opinion was -- was presented, and there  34 was no -- the negotiations were not getting  35 anywhere.  The only achievement that the  36 negotiations had was that CN agreed not to build a  37 band for a water line that went underneath the right  38 of way.  That was about $45 a year or something.  39 That was the only agreement that was resolved from  40 the six years of negotiations.  And -- and the  41 community, particularly the elders and the chiefs of  42 the community, still continued to tell the story of  43 how the initial taking of the right of way took  44 place, and they felt very clearly that it was the --  45 it wasn't done properly, and they still had this  46 legal opinion that said that it was theirs still,  47 and the negotiations had broken down and they still 672?  G. Williams (for plaintiff)  In chief by Mr. Grant  1 wanted to try and resolve it, but CN kept dragging  2 their feet and delaying further negotiations and --  3 MR. PLANT:  Again, my lord, we're dealing with an area where  4 there may be two sides to a coin, and in this case  5 the other side's not even a party to this  6 litigation.  It makes it difficult to know how --  7 there's been no disclosure of any documents by the  8 plaintiffs on this subject other than the one  9 document, which purports to be an agreement, and  10 there are pleadings in an action commenced by the  11 bands against CNR that are floating around, but this  12 is -- I fail to see how the fact, whether agreed to  13 or otherwise, that CN dragging their feet is going  14 to have any bearing on any issue in this litigation,  15 with respect.  16 THE COURT:  Well, I tend to agree with you, Mr. Plant, except  17 that what I think Mr. Grant is doing is -- or what I  18 anticipate him doing is setting the stage for some  19 questions that might be relevant.  20 MR. GRANT:  That's correct.  21 THE COURT:  Perhaps we're getting more detail than we need.  You  22 can come quickly to the point, can't you?  23 MR. GRANT:  Yes.  I believe the witness is just explaining what  24 he was faced with in May of '85.  25 THE COURT:  All right.  2 6 MR. GRANT:  27 Q   Can you just proceed and explain what happened?  2 8 A  And people were quite hyper in the community about  29 this, the lack of negotiations, and they agreed that  30 CN cannot do any other development or improvement  31 within our community or on the reserves, and they  32 had planned a bridge -- new bridge at one of the  33 reserves at Wilson Creek.  34 Q   Is that the Wilson Creek that's Tenimgyet's territory?  35 A   That's correct.  36 Q   They planned a bridge there they moved in their  37 construction crew, and we went down there and told  38 them, "You can't have anymore improvements on the  39 reserves until you resolve the right of way issue".  40 And there was a bit of a confrontation there, but  41 there was an agreement that came out of that, and  42 there was another meeting that was planned for  43 August, '85.  That occurred.  That didn't have any  44 results at that time.  And again the negotiations  45 were delayed and they were given a deadline of end  46 of November, 1985.  And that's when the protesting  47 took place in respect to -- in respect to the 6729  G. Williams (for plaintiff)  In chief by Mr. Grant  1 removal of employees from -- from the community, and  2 the slow down of the trains occurred at that time.  3 The injunction was sought by CN.  And at December,  4 1985 -- about December 15th, 1985 an agreement was  5 reached with CN where CN transferred back the  6 industrial park to the band and in the process was  7 agreed to litigate the right of way issue and some  8 of the concerns of the band at that time with  9 respect to revenue from the past leases, but added  10 to all this at that time was the increased traffic  11 of -- of the coal trains, the whistles, the speed.  12 Those were all -- those were addressed also in the  13 agreement of December, 1985.  14 THE COURT:  We'll have to adjourn now, Mr. Grant.  Two o'clock,  15 please.  16 THE REGISTRAR:  Order in court.  Court will adjourn until two.  17  18 (PROCEEDINGS ADJOURNED)  19  20  21 I hereby certify the foregoing to be  22 a true and accurate transcript of the  23 proceedings transcribed to the best  24 of my skill and ability.  25  26  27  28 Kathie Tanaka, Official Reporter  2 9 UNITED REPORTING SERVICE LTD.  30  31  32 1 (PROCEEDINGS RESUMED PURSUANT TO A LUNCHEON  ADJOURNMENT  2 AT 2 : 0 0 P . M. )  3  4 THE REGISTRAR:  Order in court.  Delgamuukw versus Her Majesty  5 the Queen at bar, my lord.  6 MR. GRANT:  7 Q    Yes.  Just before proceeding in the area I was  8 dealing with, I have two photographs here, Mr.  9 Williams, and I ask if you recognize those photos?  10 A    Yes, I do.  11 Q    Can you tell the court what they are of?  12 A    They are the Frog poles and that's the Frog poles  13 that are situated in Kitwangak.  14 MR. GRANT:  Is this —  15 THE COURT:  Situated where?  16 THE WITNESS:  In Kitwangak.  17 MR. GRANT:  18 Q    Is this the pole in the centre of the — there is  19 one picture with three poles in it and one picture  20 with one pole in it.  Is the pole in the centre of the three poles, is that the pole that you were  referring to yesterday?  Yes , it was.  And the other -- the picture with the one pole, that  is a close up of the same pole?  That's correct.  And you can see clearly on those photographs the  canoe that you were referring to?  Yes.  And the three heads in the canoe with the tongue  connection?  Yes.  Okay.  I'd ask that these two photographs be marked  as the next two exhibits or, alternatively, they  could be connected to -- well, they can just go in  as the next two exhibits.  Yes, all right.  The two and a half poles will be  38 the first exhibit.  39 THE REGISTRAR:  That will be Exhibit 566.  40  41 (EXHIBIT 566 - PHOTOGRAPH)  42  43 THE COURT:  And the other one, 567.  44 THE REGISTRAR:  And the single pole, 567.  45  46 (EXHIBIT 567 - PHOTOGRAPH)  47  21  22  23  A  24  Q  25  26  A  27  Q  28  29  A  30  Q  31  32  A  33  MR.  GRANT  34  35  36  37  THE  COURT 6730  1  MR.  GRANT:  2  3  4  THE  COURT:  5  MR.  GRANT:  6  Q  7  8  9  10  11  12  13  A  14  Q  15  A  16  MR.  GRANT:  17  18  THE  REGISTR  19  20  21  22  23  MR.  GRANT:  24  THE  REGISTR  25  THE  COURT:  26  MR.  GRANT:  27  Q  28  29  30  31  32  33  A  34  35  THE  COURT:  36  THE  WITNESS  37  MR.  GRANT:  38  Q  39  40  A  41  Q  42  A  43  Q  44  45  46  A  47  G. Williams (for Plaintiffs)  In chief by Mr. Grant  And I would ask if I would take them at the break at  the end of the day and make copies for my friends,  photocopies.  Okay, thank you.  Now, before the noon break, Mr. Williams, you were  talking about the CN events.  Now, you did refer to  the Wilson Creek incident and I would ask if you  could refer to tab 7 of your document book?  And if  you recognize that document which is dated June 28,  1985, entitled -- it appears to be an agreement  between CNR and the Gitwangak Band of Indians?  Yes, I do.  On the final page, is that your signature?  That's correct.  I ask that that be marked as the next exhibit, my  lord?  \R:      Exhibit 568, and that's tab 7.  (EXHIBIT 568 TAB 7 - AGREEMENT BETWEEN CNR AND  GITWANGAK)  Yes, it is tab 7, yes.  KR:      Thank you.  Are you going to be referring to it?  Yes, I will.  Now, the sixth "whereas", the second  from the bottom, refers to that this agreement is  entered into without prejudice and the present  dispute between the parties relating to lands in and  around Gitwangak Indian Reserve Number One.  What is  the dispute that that is referring to?  That's referring to the 99 acres that I talked about  earlier, the right of way and the industrial park.  At Wilson Creek?  :  No, on the Gitwangak Reserve, the main reserve.  Now, this agreement itself, does it relate to the  construction of the bridge at Wilson Creek?  Yes, it does.  And the protection of the Fishery at Wilson Creek?  That's correct.  And I'd ask you to refer to page 3 of the agreement  paragraph 10(a) and can you explain to the court why  you negotiated that term in the agreement?  There had been occasions where fishing sites have  been destroyed by the railway company here, CNR, and 6731  G. Williams (for Plaintiffs)  In chief by Mr. Grant  1 that was -- that was put in to ensure that the  2 traditional fishing sites of the hereditary chiefs  3 are protected and proper notice is given to if there  4 is any construction to happen along the river.  5 Q    Now, aside from the -- what you have described  6 before lunch, and I would summarize it as two  7 things:  What had happened in 1985 when you became  8 chief councillor was firstly, there was a breakdown  9 or at least the chiefs felt that there was a  10 breakdown in negotiations and this led to some  11 frustration.  The negotiations had been going on for  12 six years.  Secondly, you refer to this construction  13 of this bridge at Wilson Creek.  Was there anything  14 else that CN was doing or any change in the  15 situation with CN in 1985 that caused concern to the  16 chiefs as well in terms of the traffic or in terms  17 of the conditions?  18 A    Well, it was about that time period 1985 that the  19 coal trains were starting to run.  There was more  20 trains than we had ever seen before.  There was a  21 lot of noise created from trains going by at very  22 high speeds; the whistling was really distractive,  23 not during the day, but it -- especially all night  24 as well.  During the night times there is the  25 whistling and there was the vibration of the ground  26 right near the railway, and also the CN maintenance  27 crews that were living right along the right of way  28 in the village were creating some nuisance to the  29 community and parties and alcohol, and the young  30 girls would be going to the trailers and partying,  31 and those -- all those things had happened.  32 Q    You indicated that there was vibration of the ground  33 near the train.  How close would there be houses,  34 that is, houses of people in the village to the  35 railroad tracks?  36 A    There is houses that are as close as within one  37 hundred feet from the main line and there are houses  38 that are at least 300 feet from the main line.  39 Q    Now, did this increase traffic have an effect on  40 those houses in terms of the people living in them?  41 A    The noise and also the vibration was quite evident  42 in some of those houses.  43 Q    Now, I believe you indicated that after the entry  44 into the agreements which is Exhibit 568 in June of  45 1985, there were further meetings in August of 1985  46 with CN.  I am not going to be referring to that  47 document again, my lord.  Can you tell us what 6732  G. Williams (for Plaintiffs)  In chief by Mr. Grant  1 happened after August of 1985?  2 A    There was really nothing that occurred after August  3 1985.  There was a notice that was given to the  4 Railway that we wanted to get some negotiations  5 going that was ignored.  Near the end of November,  6 there was a cut-off date that we said that we are  7 not going to talk to the Railway and that's when the  8 protest occurred with the Railway was at the end of  9 December -- November 1985.  10 Q    And was there any action taken with respect to the  11 trailers of CN?  12 A    They were locked up because the opinion was that the  13 lands belonged to Gitwangak and notices were given  14 to the employees and the trailers were padlocked and  15 they were not allowed to re-enter, and they were  16 later removed after we entered into an agreement  17 with CN.  18 Q    And did that agreement -- was that the agreement in  19 which the industrial parklands exchanged hands?  20 A    That's correct.  21 Q    Now, before entering into that agreement, was there  22 any monetary compensation offer made by CN near the  23 end of 1985 and what transpired after that?  Did it  24 have any effect on subsequent events?  25 A    Yes, it did.  26 Q    What was the -- can you explain?  27 A    CN had offered an amount of $25,000 for a nuisance  28 clause to a final agreement that really insulted the  29 entire community and that's what really triggered  30 the protest that evening, and the slowing down of  31 the trains that evening that -- no trains were  32 allowed to come through the community.  People were  33 just, you know, they were very angry and it led to  34 the injunction coming down on a Saturday afternoon.  35 Q    Well, what happened that night?  36 A   A paper barricade was erected on the -- right on the  37 main line and, as the paper barricade was going up,  38 there was a big coal train that came around the  39 corner.  He had slowed down and he slowed down and  40 he -- and he went through the paper barricade and he  41 just took off right through the community.  And that  42 even made people more angry at that time.  43 Q    Were any more trains coming through that night?  44 A    CN was contacted and told -- was told that there --  45 we didn't want any more trains coming through the  4 6 community that evening and they didn't.  47 Q    And this was on a Friday, was that right? 6733  G. Williams (for Plaintiffs)  In chief by Mr. Grant  1  A  2  Q  3  4  A  5  Q  6  7  A  8  9  10  11  12  13  14  15  16  17  Q  18  19  A  20  Q  21  A  22  23  24  Q  25  26  A  27  Q  28  29  A  30  MR.  PLANT  31  32  33  34  MR.  GRANT  35  36  37  38  MR.  PLANT  39  40  41  THE  COURT  42  43  MR.  GRANT  44  45  46  47  THE  COURT  On a Friday night.  And the next day an injunction was issued out of  this court against --  That's correct.  -- band members?  And what happened after the  injunction was issued?  That -- the injunction, we heard about it at about  2:00 that afternoon on the Saturday.  We briefly  assembled for a meeting at the band office and we  discussed the implications of the injunction.  It  was agreed that there would be a feast that evening  and there was such a feast where different chiefs  from the village and Gitwangak and Kitwancool and  Kitsegukla was all at that feast and a report was  made to them and what the injunction was had meant  and what the implications of it would be.  Just one moment.  When you say the chiefs, were  these the elected chiefs or the hereditary chiefs?  The hereditary chiefs.  Go on.  And they insisted that we still have -- try and  attempt to get CN to the negotiating table and that  was the major instructions at that time.  And that did transpire that you ended up negotiating  with CN?  That's correct.  And an agreement was entered into within one --  within a week after that?  That's correct.  Perhaps -- I mean, I am not sure who's giving this  evidence here.  Sounds like my friend is leading in  an area which again I have no knowledge of, and  perhaps my friend could refrain from leading.  I am surprised.  I have no problem.  Mr. Plant  referred to this agreement to me in a conversation  in court so I thought he was fully aware of this  area of evidence.  That I do admit but I am aware of the existence of a  subsequent document which may or may not be the  document that's being referred to.  How does it have anything to do with the case, Mr.  Grant?  It has to do, my lord, with -- once again, it has to  do with the efforts of this person and the  communications in terms of resolving problems under  the existing systems that are in place.  I am not interested in what people can resolve under 6734  G. Williams (for Plaintiffs)  In chief by Mr. Grant  1 private negotiations or under threats or under  2 anything else.  They may have any number of reasons  3 why they make these agreements.  I am dealing with  4 legal rights that are here, you are here to enforce,  5 and where other people have agreed to had no  6 evidentiary weight or value.  7 MR. GRANT:  It is not a question -- what it is is in terms of  8 your dealings, I agree you are dealing with legal  9 rights.  You are dealing with collective legal  10 rights of Gitksan and Wet'suwet'en people.  11 THE COURT:  What they can negotiate has got nothing to do with  12 that.  13 MR. GRANT:  I agree.  What in fact they negotiate is not the  14 point.  The question is what directions the  15 chiefs -- the hereditary chiefs have given in order  16 to how to resolve their problems, how they have  17 endeavoured to utilize all means -- all existing  18 means within the constraints of non-recognition by  19 both defendants to resolve the outstanding problems.  20 That's what this is.  21 THE COURT:  I don't know how it is connected at all, Mr. Grant.  22 I am sorry, I am trying to find a way through all  23 this to make it useful, but you have said or the  24 witness has said that they had a feast and the  25 chiefs said negotiate and they negotiated.  Isn't  26 that the end of it?  How can I put any weight on  27 what the results were without fully investigating  28 why people make compromises, if it was a compromise,  29 or whether it amounted to a recognition of an  30 absolute right or whether it was a buy-out or what  31 it was?  How can I use this information?  32 MR. GRANT:  I am not introducing the agreement with respect to  33 that.  The only agreement I have introduced relevant  34 is the agreement with relevance to fishing sites  35 which I submit is relevant.  But all -- the issue of  36 course before you is that the hereditary chiefs  37 claim right of jurisdiction over the territory and  38 what this witness is describing is how they have  39 entered to exercise that jurisdiction within the  40 existing realities or the existing problems that  41 they are confronted with, and that's what -- that's  42 what I am endeavouring to elicit through this  43 witness with respect to this incident.  If it is of  44 any consolation, I wasn't going to pursue any  45 further the exemplary -- the example of CN, but I  46 mean, I submit, my lord, that it is very important  47 for you to see how the hereditary chiefs have 6735  G. Williams (for Plaintiffs)  In chief by Mr. Grant  1  2 THE COURT:  3  4  5  6  7 MR. GRANT:  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT:  MR. PLANT:  THE  MR.  COURT:  GRANT:  MR. PLANT:  THE COURT:  MR.  THE  MR.  PLANT:  COURT:  GRANT:  Q  endeavoured --  All I got from this is that they had a meeting at  the feast, they put up this barricade and the  railway went through it, had a meeting; the chiefs  said negotiate.  That seems to me that's all I have  got.  And they negotiated with CN and persons like Mr.  Williams carried out those instructions.  Well, I am sorry, Mr. Grant, it may be that I am  wrong and this has great evidentiary value and for  that reason I think I should allow you to lead the  evidence, but I am having serious difficulty seeing  how it is one step beyond already what I have  described.  Well, my lord, in view of that ruling, it then  brings us to the fact that my friend has just led  from this witness evidence of another document and  if that is relevant somehow then surely I ought to  be able to see the document.  If the fact that there  was a meeting was relevant, then maybe there was a  notice about that meeting.  Maybe I should be  entitled to see that.  Not maybe, I should be able  to see that.  Is there any problem showing Mr. Plant the document?  No, none whatsoever.  Mr. Plant indicated yesterday  he had already seen the document.  I thought he  already had it.  Mr. Grant, with great respect, I never suggested  that I had that document.  I said I was not allowed  that document.  I said I had been allowed to see it  but had not been given that document.  I don't know why there should be all this  difficulty.  I can't understand this.  Still haven't  seemed to sort out who hasn't seen the documents.  I  can't understand this.  I had better explain for your lordship.  I don't think I should hear an explanation.  I think  we ought to be getting on with some evidence.  Please carry on, Mr. Grant.  Thank you, my lord.  I'd like to move you to an area  with respect to one of the other priorities you took  on and that's a priority with respect to an alcohol  treatment centre, and are you familiar with the Wilp  Si'satxw House of Purification Society?  That's  spelled W-i-l-p first word, second word  S-i-'-s-a-t-x-w? 6736  G. Williams (for Plaintiffs)  In chief by Mr. Grant  1  A  2  THE  COURT  3  MR.  GRANT  4  THE  COURT  5  MR.  GRANT  6  Q  7  8  9  A  10  11  12  13  14  Q  15  A  16  17  Q  18  A  19  Q  20  21  A  22  Q  23  24  A  25  Q  26  27  28  29  30  31  A  32  Q  33  34  35  A  36  37  38  39  MR.  GRANT  40  41  42  43  44  MR.  PLANT  45  46  47  Yes, I am.  I am sorry, Wilp Si'satxw Purification --  House of Purification Society.  Thank you.  And can you explain what that is and your -- you are  presently on the board of directors of that  organization?  Yes, I am.  The purpose of the society is mainly to  construct a 16-bed residential treatment centre in  the community of Gitwangak, and that construction  started in the fall of 1987 and is still under  construction.  And where is it located specifically?  It is located approximately three miles west of the  community of Gitwangak on the Cedarvale Road.  And is it on reserve?  It is on reserve lands.  And has the Gitwangak Band, while you have been a  chief, supported the development of this project?  Yes, we have.  And were you involved in arranging for its location  on Gitwangak reserve?  Yes.  I'd ask you to refer to tab 8 of your document book.  Now, tab 8, my lord, it is actually one document but  it is in two envelopes just because of size.  And  are you aware of this report in which was a  feasibility study prepared in 1984 for an alcohol  treatment centre?  Yes, I am aware of it.  And can you explain why this report was prepared?  What was the purpose of having the report like this  done?  The report was done mainly to try and gather  information in the local area to substantiate a  construction of the 16-bed treatment centre in the  north-west of B.C.  Now, is there, in the approach of treatment of  alcohol treatment in this treatment centre, is there  anything different from existing proposals for  alcohol treatment that have been made in other  treatment centres?  This centre doesn't exist as yet so this is a  proposed difference in or difference in proposed  treatment?  Is that -- the note I made of the  earlier evidence was that the building was still 6737  G. Williams (for Plaintiffs)  In chief by Mr. Grant  1 being built so I just wasn't sure about --  2 MR. GRANT:  3 Q    I will lay some groundwork.  When is it anticipated  4 the building will be completed and the programme  5 will be commenced?  6 A    The building should be completed within the month.  7 The main structure of the building has been  8 completed.  Its first intake of clients will be in  9 September of 1988.  10 Q    And as a board member are you aware of the  11 philosophy of the programme that is planned to be  12 used for this treatment?  13 A    Yes, I am.  14 Q    Can you explain the approach that you intend to  15 have?  16 A    The programme design and the philosophy for the  17 whole treatment programme is going to be based on  18 the Gitksan and the Wet'suwet'en value system, the  19 different counselling techniques of the Gitksan and  20 Wet'suwet'en, and how they approach problems and  21 that's basically a good part of the programme design  22 itself.  23 Q    I'd just like to refer you to certain portions of  24 the report itself.  And have you reviewed these  25 parts of the report commencing on page 8 which deal  26 with the scope of the alcohol and drug problem and  27 then analyse alcohol consumption and alcohol and the  28 law on page 9 together with certain charts?  Have  29 you had an opportunity to look at that before today?  30 A    I have looked at it approximately last September, I  31 believe, I have looked at it.  32 MR. GRANT:  I'd ask you to refer to page 13 and I am going to  33 ask you to comment on certain comments made there.  34 Based on your experience as a band social worker,  35 band manager and your experience in your own  36 community over your life in all of your -- page 13.  37 MR. PLANT:  I am at a loss as to how that can be done.  The  38 report is not proven.  Not sure that I can object to  39 this witness giving evidence about his own  40 experiences as a social worker with alcohol, the  41 alcohol problem that may or may not exist in his  42 village, but now what's proposing -- what my friend  43 is proposing to do is to lead evidence by means of a  44 report that has not yet been proven and to ask this  45 witness to comment on it.  46 THE COURT:  Is it provable under the Evidence Act as 14 days  47 notice when given and that sort of thing? 673?  G. Williams (for Plaintiffs)  In chief by Mr. Grant  1  MR.  GRANT  2  3  MR.  PLANT  4  5  6  THE  COURT  7  8  9  MR.  PLANT  10  THE  COURT  11  MR.  PLANT  12  THE  COURT  13  14  15  16  17  18  MR.  GRANT  19  THE  COURT  20  21  22  23  MR.  GRANT  24  THE  COURT  25  MR.  GRANT  26  27  28  29  THE  COURT  30  31  32  33  34  MR.  GRANT  35  36  THE  COURT  37  MR.  GRANT  38  THE  COURT  39  MR.  GRANT  40  Q  41  42  43  44  45  46  A  47  Notice has not been given because it only came to my  attention in less than 14 days.  Of course whether it came to Mr. Grant's attention  is irrelevant.  We have the witness' evidence that  the report existed in 1984.  I am concerned about whether it might not be  admissible as opinion evidence really by producing  it and Mr. Grant says notice hasn't been given.  No.  So the document is in evidence.  There is no statement of qualifications.  Well, aren't you in a position, Mr. Grant, of, as it  were, of leading the witness by putting statements  to the chief and not really asking him for his  evidence or asking if he agrees with what somebody  else has written?  Isn't that reserved for  cross-examination?  Well —  I don't know if this is self-serving or what it is.  I have never seen it before either, but this line of  examination is usually referred -- is usually  confined to cross-examination.  Well, I am intending to put to him certain data.  Isn't that both leading and hearsay?  Well, no.  My question to him would be what his  knowledge as within his community.  I don't really  have to put any of the data to him and I will remove  that.  Tell me without reference to this document what the  alcohol problem is in his community.  Does he need  the document at all?  You don't need to be an expert  in the community to say what the problems are with  alcohol in the community.  Why do you need this?  Well, I will lead it -- I will introduce it in that  manner.  Pardon?  I will proceed in that manner.  Thank you.  Can you comment on yourself as to why the need was  felt to develop the Wilp Si'satxw House of  Purification and from your own experience and  observations within the community and your knowledge  of the other communities in the  Gitksan/Wet'suwet'en?  The only treatment centre that had been used prior  to the construction of this one was the one in Round 6739  1  2  3  4  5  6  7  8  9  10  Q  11  12  A  13  14  Q  15  16  17  18  A  19  20  21  Q  22  23  24  25  A  26  Q  27  28  A  29  30  31  Q  32  A  33  34  35  36  37  38  39  40  41  42  43  44  45  Q  46  47  A  G. Williams (for Plaintiffs)  In chief by Mr. Grant  Lake near Vernon and they have their own design  relevant to their own culture down there.  But there  is that alcohol problem in -- not only in our  community but in other communities and individuals  from our area are sent away, and we want to try and  incorporate it in the treatment centre our own  philosophies and our own values of how we want to  treat alcohol problems and using the value system  that we have.  What does -- where did the name Wilp Si'satxw come  from?  Wilp Si'satxw is a Gitksan word meaning  purification, to clean yourself.  With respect to the project itself, is there -- just  one moment, my lord.  From your work with the people  in your community, can you explain why there is  alcohol problems within your community?  Probably a number of reasons.  Probably economic  reasons, housing condition, the education, the lack  of education.  Those are probably three main areas.  Is it the view of yourself and the others involved  in this that it is the -- that this treatment centre  is a long-term solution or is it viewed as an  interim solution for the alcohol problems?  I would say interim.  And why do you say that?  What do you see as the  long-term solution?  A lot of our problems with educational problems,  economic problems, housing problems and maybe there  is other problems.  Does --  If we are given -- if we had our own land base back  what we are making a statement in this court with,  if we had that, the chiefs and their house would be  responsible for providing housing to their own  people in their house and dealing with other  problems and ensuring that their house members are  dealt with and not to be suffering from social and  housing problems that we have today.  Their  resources for them would be there.  They would have  a good economic return from their territories which  is rightfully theirs.  That's the solution that we  invision.  That's the solution that the chiefs  discuss extensively.  And did they discuss that solution in relation to  the alcohol problems as well?  Yes, they do. 6740  G. Williams (for Plaintiffs)  In chief by Mr. Grant  1 Q    I'd like to move into another area of evidence as to  2 another aspect of what you have been doing with the  3 band and that's with respect to endeavouring to get  4 revenue -- get a revenue base within the constraints  5 that exist, and you alluded in your evidence to the  6 development of taxation and have you been involved  7 in the development of tobacco taxation in your  8 community?  9 A    Yes, we have.  10 Q    Can you explain to the court why you -- what the  11 process was and why you initiated it and what's  12 happened?  13 A   A majority of funding that is received by band  14 councils is subject to a lot of policies and  15 regulations and limitations of how you expend funds,  16 and the majority of that funding comes from the  17 Department of Indian Affairs and they have stringent  18 regulations and policies over them.  And you cannot  19 use it for different areas but what we want to do  2 0 was to try and generate revenue on our own that we  21 can have the freedom to spend it, to borrow money  22 against it.  Those were some of the things.  We  23 wanted the freedom to be able to do that and that's  24 what we have done with the -- with taxation, was  25 looked at all the available taxes that were imposed  26 in the community in respect to gasoline, to all  27 these other areas, and tobacco seemed like it was  28 the best one that we could pursue, and the province  29 encloses approximately seven dollars and some odd  30 cents on a carton of cigarettes.  It costs about  31 $21.  They were not interested in taking off their  32 $7 tax on this carton until we forced them to.  We  33 developed our arguments how we would pursue that.  34 We met with the minister, Steven Rogers, at that  35 time and told him our idea of how we wanted to be  36 independent and make our own money and told him that  37 we were tired of being labeled as living off the  38 Canadian taxpayers and we want to make our own  39 money, and that's what we have done.  We have  40 secured an agreement with the province and had a  41 quota of about 15,000 cartons a year and we  42 developed our own by-law for the community where we  43 occupied the vacated tax of the province and imposed  44 a tax of approximately $5.15 and we developed an  45 Indian taxpayer.  They pay that $5 a tax to our  4 6 community and what the agreement with the province  47 is is that the band council acts as a wholesaler and 6741  G. Williams (for Plaintiffs)  In chief by Mr. Grant  1 retailers in the community buy from our tobacco  2 wholesale company and we collect the $5 tax and we  3 are only allowed to sell to status Indians and not  4 to non-status or non-Indians.  5 Q    Why did you have to enter into an agreement with the  6 province to do this?  7 A    Because the province controls all the tobacco  8 products in the province of B.C.  9 Q    I'd ask you to refer to tab number 9 of the document  10 book?  And after the cover letter of April 14, 1988,  11 I'd ask you to refer to page 6 of the document and  12 look at the document underneath.  I am sorry, there  13 is an affidavit and is that your affidavit on the  14 second -- second page?  15 A    Yes, it is.  16 Q    And that's your signature on the bottom of that?  17 A    Yes, it is.  18 Q    On the second last page, is that your signature  19 above chief councillor?  20 A    Yes, it is.  21 Q    And is this the tobacco tax by-law that you referred  22 to in your evidence?  23 A    That's correct.  24 MR. GRANT:  I ask that this be marked as an exhibit?  25 THE REGISTRAR:  What is it?  The whole thing?  26 MR. GRANT:  Yes.  It is a certification letter of April 14, 1988  27 together with the affidavit of Glen Williams and the  28 Gitwangak Indian Band tax by-law 1987.  29 THE REGISTRAR:  And the date of the affidavit?  30 MR. GRANT:  October 30, 1987, and it is at tab 9.  31 THE COURT:  568?  32 THE REGISTRAR:  No, 569, my lord.  Tab 7 is 568.  33  34 (EXHIBIT 569 TAB 9- LETTER DATED APRIL 14, 1988,  35 AFFIDAVIT OF G. WILLIAMS, GITWANGAK INDIAN BAND TAX  3 6 BY-LAW 1987)  37  3 8 MR. GRANT:  39 Q    Now, after entering into the agreement with the  40 province, why did you initiate this by-law?  41 A    To ensure that we have a law in the community that  42 we can collect the taxes off it and hopefully to see  43 whether we could borrow money against our revenue  44 without having the Department of Indian Affairs  45 being involved in guarantees.  46 Q    And does -- is that one up to the -- prior to May 9  47 when you resigned as chief councillor, were you 6742  G. Williams (for Plaintiffs)  In chief by Mr. Grant  1 involved in investigating and borrowing money for  2 for the Gitwangak on the basis of the by-law?  3 A    Yes, we were.  We are attempting to borrow between  4 150,000 to $200,000 to try and build our own school  5 without having to rely too much on government money.  6 Q    Now, was there any opposition or any efforts to  7 cancel this agreement by outsiders or persons  8 outside of the Gitwangak community?  9 A    There was protests by neighbouring business people  10 in the Gitwangak valley.  They initiated a protest.  11 They contacted the M.L.A. in the area.  The taxation  12 people in Victoria got all excited and they cut back  13 our quota in January of 1988.  14 THE COURT:  Quota for what?  15 THE WITNESS:  Our initial quota was approximately 15,000 cartons  16 a year and they have cut that back.  17 MR. GRANT:  18 Q    What is it cut back to?  19 A    I don't exactly know how many cartons they have cut  20 it back.  21 Q    Were the hereditary chiefs of Gitwangak involved  22 prior to the execution of the agreement or the  23 passage of the by-law in the decisions to go ahead  24 with its project?  25 A    That was discussed to the public meeting.  All these  2 6 by-laws and the agreement with the province was  27 given at public meetings.  28 Q    Now, you referred to earlier this morning as to  29 another revenue -- another effort to obtain revenues  30 with respect to, I believe, bingos.  Has the  31 Gitwangak band been involved in a development of a  32 revenue project through lotteries or bingos?  33 A    Yes, on bingos.  That's one of the better revenue  34 generators for the community is bingo.  We have made  35 some money on bingos.  It was used to do our  36 community hall and we have had some encounters with  37 the province and with the R.C.M.P., so it's been  38 developed now, the bingo in the community, and  39 it's -- don't have anything to do with the band  40 council.  It's the high chiefs that -- that's  41 their -- under their control to regulate bingo and  42 hopefully get involved with scratch and win, or on  43 649, casinos, and horse racing, and those are some  44 areas that are in discussions and they regulate  45 that, the band council doesn't regulate that, and it  46 is again making money and not depending on the  47 province or the Federal Government or for money to 6743  1  2  Q  3  4  5  A  6  7  8  9  10  Q  11  12  13  A  14  15  16  Q  17  18  19  Q  20  21  22  Q  23  A  24  25  Q  26  27  28  29  A  30  31  32  33  Q  34  A  35  Q  36  37  A  38  Q  39  40  41  A  42  43  44  45  46  47  G. Williams (for Plaintiffs)  In chief by Mr. Grant  improve the community.  Why is it that the question of lotteries or bingos  is, you say, run by the hereditary chiefs?  Is there  any historical reasons for that?  Because the province alleges that they have the  authority over bingo and they insist that we get  permits and it complicates things again.  As soon as  you take their permit, they say you have given up  your rights as well.  In Adaawk or in part of your teaching, is there any  teaching about gambling as traditionally part of the  Gitksan system?  Yes, there is gambling.  One of our high chief's  name is The Gambler.  That's Guxsan from Fireweed  from Kitsegukla.  Did you develop a by-law or did you tender a by-law  to the Department of Indian Affairs with respect to  bingos?  We developed a by-law underneath the Indian Act but  we knew it wasn't going to get anywhere so we never  sent it in.  Why did you know it wasn't going to get anywhere?  Because the Hagwilget Band originally tried and they  were denied their bingo by-law.  Did you meet with any representatives of Indian  Affairs and explain your project or your planning  with respect to having your own gambling outlets for  fund raising for the community?  I have discussed it with the Assistant Deputy  Minister for Economic Development with Indian  Affairs.  We have had some discussions on that prior  to him leaving the Department.  What was his name?  His name was Don Allan.  When did you first have the first bingo authorized  by the hereditary chiefs?  April of 1987.  And was there any meeting or discussion either by  the band council or the hereditary chiefs in advance  of that?  Yes, there was.  There was -- we were threatened by  the R.C.M.P. that they were going to come in and --  on the Sunday after that Saturday night -- Saturday  evening that we met, we were threatened that we were  going to be charged and they were going to shut down  the bingo and forced us to meet with our chiefs and  they issued a licence to operate that bingo that 6744  G. Williams (for Plaintiffs)  In chief by Mr. Grant  1 next day.  2 Q    Who issued the licence?  3 A    Tenimgyet.  4 Q    That's one of the hereditary chiefs?  5 A    That's correct.  6 THE COURT:  I am sorry, he issued the licence or a licence was  7 issued to him?  8 THE WITNESS:  Tenimgyet issued the licence.  9 MR. GRANT:  10 Q    Did anything occur out of that bingo with respect to  11 the threats of the police?  12 A    In October of 1987, the sergeant from Hazelton  13 located me in Hazelton and he gave me a summons and  14 I have been charged under the Criminal Code for  15 operating an illegal bingo.  16 Q    What's happened with that charge?  17 A    I appeared in October of 1987.  I made an election  18 for a judge and jury.  I later on discovered that I  19 was denied that right and we're now proceeding to  20 try and get the judge and jury, and their  21 preliminary arguments that are taking place before  22 actual trial.  23 Q    So it hasn't gone to trial yet?  24 A    It hasn't gone to trial.  25 Q    Since April 1987, have there been further lotteries  26 held or bingos held in Gitwangak under the authority  27 of the chiefs?  28 A    Yes, there have.  29 Q    And when was the last one?  30 A    I recall the one on the 22 of May, 1988, whereby the  31 Education Committee wanted to, because we didn't  32 really want government money for our new school,  33 they operated the bingo on May 22.  There was 25,000  34 in total prizes and jackpot was a brand new car,  35 1988 Topaz with insurance.  That was the jackpot.  36 That attracted people, and the revenue made it that  37 day was 22,500 and that just helped to pay for the  38 designs of our school.  39 Q    I'd like to ask you to move into that area.  Well,  40 before I do that, you had indicated that this bingo  41 in 1987 was authorized by Tenimgyet.  What about the  42 Eagle -- the Tenimgyet is one of the leading Wolf  43 chiefs of your village of Gitwangak; is that right?  44 A    That's right.  45 Q    What about the chiefs of the Eagle and Frog Clan of  46 your village?  Have they been actively involved in  47 the bingo or approving the bingos that have been 6745  G. Williams (for Plaintiffs)  In chief by Mr. Grant  1 going on?  2 A    Yes, they have.  3 Q    And if a group such as the education group wants to  4 hold a bingo in your community, who do they go to?  5 A    They go to the hereditary chiefs.  6 Q    I'd like to move into another area of one of the  7 things that you have described and you have just  8 referred to as a priority earlier and that is  9 education.  Can you explain -- you describe -- you  10 yourself went to the Gitwangak Indian Day School in  11 the 1960's.  Can you describe what happened to that  12 school and what's the status of education within  13 your community since then; that is, where do the  14 children go to school?  15 A    I went to the Indian Day School between '61 to  16 around '68.  That Indian Day School continued to  17 about 1979.  The community agreed during that time  18 about 1977 that they would amalgamate with the  19 provincial school that's located in Gitwangak Valley  20 and that has happened.  They have been going there  21 ever since and, as of September 1987, the community  22 has taken over, brought down grades 1 to 3 back down  23 to the community and our intentions were to rent  24 portables for the school.  We were unable to do that  25 because of time constraints just before September of  26 1987, so what we did was re-renovated our former  27 band office and converted into a school for grades 1  28 to 3, and that was a temporary facility, and we are  29 now in the process of raising money ourselves to try  30 and build our own school, and the school's about  31 approximately half a million dollars, and we want to  32 borrow money on our own based from our tax, tobacco  33 taxes, and fund raising in the community with the  34 bingo and the walk-a-thons and raffles.  We will  35 build our own school from that.  36 Q    Did you apply to the Department of Indian Affairs  37 for funding for your school and for this new school  38 you are talking about?  39 A    We had made request to the Department but the  40 Department has about a ten year waiting list for  41 other schools in the province that are way ahead of  42 us, and they told us that at least ten years you'll  43 have to wait before you can get your own schools, so  44 that's what we have had -- had the response from the  45 Department with.  4 6 Q    Why was it decided that you wanted to have your own  47 school back in your own community? 6746  G. Williams (for Plaintiffs)  In chief by Mr. Grant  1 A    Mainly to try and improve our own education, to be  2 in control of our own children's education, to  3 implement some of our own culture, the language, and  4 to be in control of it, and just to mainly be in  5 control and have some of our culture implemented  6 into the school.  7 Q    And what did you do in terms of setting up an  8 operational school in September of '87?  I  9 understand you don't have a school building?  10 A    No.  We used our former band office to convert it  11 into a two classroom school.  12 Q    Do you have teachers employed now by --  13 A    Yes, we do.  We have two teachers.  14 MR. GRANT:  Would this be a convenient time to break?  15 THE COURT:  Thank you.  16 THE REGISTRAR:  Order in court.  Court will recess.  17  18 (ADJOURNMENT AT 3:00 P.M.)  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 6747  G. Williams (for Plaintiffs)  In chief by Mr. Grant  1  2  3  4  5 I hereby certify the foregoing to be  6 a true and accurate transcript of the  7 proceedings herein, transcribed to the  8 best of my skill and ability.  9  10  11  12  13  14 TANNIS DEFOE, Official Reporter  15 United Reporting Service Ltd.  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 6748  G. Williams (for plaintiffs)  In chief by Mr. Grant  1 (PROCEEDINGS RESUMED PURSUANT TO A SHORT ADJOURNMENT)  2 THE REGISTRAR:  Order in Court.  3 THE COURT:  Mr. Grant.  4 MR. GRANT:  5 Q   The logistical difficulties have been resolved, and I  6 have provided the clerk with the additional tabs and  7 provided them to my friends, some additional  8 documents and a new index for your book, which goes  9 from Tabs 10 through to Tab 21.  10 I'd ask you to refer, Mr. Williams, now to Tab  11 Number 21 first.  It's the very last document in the  12 book.  Take that out of there.  And have you seen  13 this document before and are you familiar with how  14 it was created?  15 A   Yes.  I'm familiar with the document.  16 Q   And who created this document?  17 A   This document was created by Alice Harris, the drug  18 and alcohol worker for the Gitwangak Band, and was  19 based on monthly reports from the R.C.M.P.  20 detachment in Hazelton.  They issue a monthly report  21 to the band.  The first two pages, I believe, are a  22 summary of all the incidents that occurred in 1987,  23 the year of 1987, and the next two pages are a  24 summary of the reports, again based on the R.C.M.P.  25 monthly reports to the band from January to April,  26 1988.  27 Q   On the second page after the breakdown of these, it  28 indicates that there's a statement that total hours  29 spent policing the reserve by R.C.M.P. during the  30 year 1987 were 326, equalling thirteen and a half  31 days; is that correct?  32 A   That's correct, based on their information.  33 Q   Based on the information provided by the R.C.M.P.?  34 A   That's correct.  35 Q   And as chief counsellor of the band, you became  36 apprised of that information and had an opportunity  37 to review it?  38 A   Yes.  39 Q   And then it states that 90 percent of the offences  40 were alcohol and drug related.  And is that true for  41 1987?  42 A   Yes.  43 MR. GRANT:  Okay.  44 THE COURT:  Does this mean -- this doesn't mean convictions?  45 THE WITNESS:  No, it doesn't.  It just means reports.  46 MR. GRANT:  At the top of the first page it's referred to as a  47 summary of offences committed and/or reported. 6749  G. Williams (for plaintiffs)  In chief by Mr. Grant  1 THE  2 MR.  3  4  5  6  7  8  9  10 MR.  11  12 MR.  COURT:  GRANT:  Q  A  GRANT  PLANT  13  14  15  16  17  18  19  20  21  22  2 3 THE COURT  24  25  26  27  28  29  3 0 MR  Yes.  And is this -- as a board member of the Wilp Sisatxw  Society, you were familiar with the circumstances  around the other bands, the other Gitksan and  Wet'suwet'en bands, that is their -- the -- the  crime rates generally and the proportion that are  drug and alcohol related?  Not to this extent.  I'd ask that this document be marked as the next  exhibit.  I haven't seen the R.C.M.P. summaries on which  it's -- this document's based, and until I do, I  think I have to ask that the document be marked as  an exhibit for identification only, because it is  hearsay.  And as I understand this witness'  evidence, he has done no more than confirm that this  is a summary of the information contained on those  reports.  I may be able, once I've seen the reports,  to confirm that the summary is accurate, but at the  moment I would ask that the document be marked for  identification only.  Well, it falls far short of proof, doesn't it, Mr.  Grant?  It's hearsay, in the first place, and,  secondly, it's vague and uncertain.  I don't know  whether reported offences are equal to offences or  not.  But your friend may not object if he sees the  underlying documents.  Do you object to having it  marked for identification?  31  32  33  34  35  36  37 MR.  38  39  4 0 THE  41 THE  42  43  44 THE  45  4 6 THE  47 THE  GRANT  Q  I just wish to ask a question for clarification.  You say the R.C.M.P. prepare monthly reports.  Are  they in writing or are they verbal reports?  A   It's a form letter and they usually have -- it's a  form letter and they usually have comments right on  the bottom.  That's given to the band once a month.  GRANT:  On that basis I have no objection to producing those  and them going in as an exhibit for identification  at this point.  COURT:  Yes.  All right.  REGISTRAR:  570 for identification, Tab 21.  (EXHIBIT 570 FOR IDENTIFICATION:  Tab 21, summary of  offences committed/reported to by R.C.M.P.)  COURT:  What is the population of the community that would  be covered by these activities?  WITNESS:  The on-reserve population is approximately 460.  COURT:  Do you understand these incidents are confined to 6750  G. Williams (for plaintiffs)  In chief by Mr. Grant  1 the reserve?  2 THE WITNESS:  Yes, they are.  3 MR. PLANT:  I didn't hear your lordship's question.  The  4 incidents are on the reserve?  5 THE COURT:  Are on the reserve, is what the witness is saying.  6 All right.  Thank you.  7 MR. GRANT:  8 Q   My lord, I just will catch up a little bit here and  9 refer the witness to Tab 10 of the document book.  10 Just take that out.  And do you recognize that  11 document?  12 A   Yes, I do.  13 Q   And is that your signature at the top of the third  14 page at above chief counsellor?  15 A   That's correct.  16 Q   And is this -- can you explain to the Court what this  17 document is?  18 A   It's an agreement between the Gitwangak Indian Band  19 and the Minister of Finance, and it's an agreement  20 that we have in respect to the -- to the sale and  21 control of cigarettes on the -- on the reserve.  22 Q   And this is the agreement that you entered into in  23 order to get access to cigarettes for wholsaling on  24 the reserve?  25 A   That's correct.  26 MR. GRANT:  Okay.  I'd ask that that be marked as an exhibit.  27 THE REGISTRAR:  Is there a date?  28 MR. GRANT:  It should be entitled a tobacco purchase agreement  29 of July 24th, 1987 between the Gitwangak Indian  30 Reserve and the Minister of Finance and Corporate  31 Relations.  32 THE COURT:  Any objection?  571.  33 THE REGISTRAR:  571, Tab 10.  34 (EXHIBIT 571:  Tab 10, Tobacco sales agreement dated  35 July 24, 1987)  3 6 MR. GRANT:  37 Q   Then I'd ask you to turn to Tab 11.  I'd refer you to  38 Tab 11.  Can you -- do you recognize that document?  39 It's a one-page document.  4 0       A   Yes, I do.  41 Q   And can you explain what that is?  42 A   That's a -- a bingo permit that was issued for bingo  43 on April 11th, 1987 to the Gitwangak Hall Committee  44 and issued by Tenimgyet, Art Mathews Junior.  45 Q   Is that the permit that you referred to earlier this  46 afternoon in your evidence?  47 A   That's correct. 6751  G. Williams (for plaintiffs)  In chief by Mr. Grant  1 Q   Or a copy of the permit?  2 A   That's correct.  3 MR. GRANT:  I'd ask that that be marked as the next exhibit.  4 THE COURT:  572.  5 THE REGISTRAR:  572.  6 (EXHIBIT 572:  Tab 11, Bingo permit dated April 11,  7 1987)  8 MR. GRANT:  I would ask you to refer to Tab 13 and to Tab 12.  9 You can pull out both documents at the same time.  10 And I'd ask you if you recognize those documents.  11 MR. PLANT:  Before the witness does that, my lord, it may be  12 clear on the record already, but I wanted to observe  13 that Tab 11 was one of the documents disclosed by  14 the plaintiffs for the first time on the list that  15 was delivered yesterday.  The point is simply to  16 define the time of production in relation to the  17 fact that Mr. Mathews Junior was called as a witness  18 some time ago.  19 THE COURT:  All right.  Thank you.  2 0 MR. GRANT:  21 Q   Tab 14.  I'm asking him — I had Tab 12 and 13.  I  22 refer you to a document entitled "Band Council  23 Resolution" in Tab 13.  Do you recognize that  24 document?  25 A   Yes.  26 Q   And you've seen that before?  27 A   I've seen it before, yes.  28 Q   And in -- with reference to your evidence relating to  29 bylaw, or relating to bingo, can you comment on --  30 was this one of the documents you were referring to  31 this afternoon?  32 A   Yes.  33 Q   And that is -- I'd ask you to refer then to Tab 12,  34 which is a -- the first document is an April 27th,  35 1984 letter to the Hagwilget Band Council from Mr.  36 Robert Bruce.  And underneath it is an April 24th,  37 1984 letter.  Underneath that is a disallowance  38 dated April 12th, 1984 from the M.A.J. LeFontaine.  39 And underneath that is an April 12th, 1984 letter to  40 the Deputy Minister of Indian and Northern Affairs  41 from Mr. Goodwin.  Are you familiar with those  42 documents, or have you seen copies of those  43 documents before?  44 A   Yes.  45 Q   And do those -- are those -- based on your knowledge  46 of those documents, did that have anything to do  47 with your decision not to pass a bingo bylaw for 6752  G. Williams (for plaintiffs)  In chief by Mr. Grant  A  Q  A  GRANT:  Gitwangak?  Yes.  Can you explain, please?  They weren't going to be passed, so we didn't bother  sending it in, because we had -- we had seen some of  these documents before.  I'd ask that Tab 14 be marked as the next -- I'm  sorry.  I keep saying 14.  Tab 13 be marked as the  next exhibit.  REGISTRAR:  Band council resolution.  Do you have a date?  GRANT:  It's 1984, undated, 1984.  COURT:  Mr. Plant?  PLANT:  Well, it does appear to me to be a band council  resolution.  It's a draft or intended band council  resolution.  That's my --  GRANT:  I agree with draft.  PLANT:  -- from the fact that there aren't any signatures on  the last page.  COURT:  You're talking now about Tab 14?  PLANT:  Tab 13, my lord.  COURT:  Tab 13 is a -- is there a resolution in there?  PLANT:  Tab 13 in my book is a three-page band council  resolution of the Hagwilget Band.  COURT:  Well, that's Tab 13 in my book.  GRANT:  That's right.  COURT:  Yes.  All right.  You want that as —  REGISTRAR:  573.  COURT:  Yes.  573.  (EXHIBIT 573: Tab 13, draft band council resolution,  undated, 1984)  Tab 12, which is the cover letter of April 27th,  1984 from Robert Bruce to Dora Kenni, together with  the enclosures I referred to on the record, all to  be marked as the next exhibit.  That will be 574.  REGISTRAR:  574.  (EXHIBIT 574: Tab 12, letter dated April 27, 1984 and  enclosures)  GRANT:  Now, I'd like to refer you to Tab Number 14.  THE COURT:  Yes.  All right.  I'm going to have to take a very  short adjournment just for a moment, please.  THE REGISTRAR:  Order in court.  (PROCEEDINGS RESUMED PURSUANT TO A SHORT ADJOURNMENT)  THE COURT:  Thank you.  Tab 14.  4 5 MR. GRANT:  46 Q   My lord, what I think I will do, because it's a bit  47 lengthier document, is I will wait till the morning  1  2  3  4  5  6  7 MR.  8  9  10 THE  11 MR.  12 THE  13 MR.  14  15  16 MR.  17 MR.  18  19 THE  2 0 MR.  21 THE  22 MR.  23  24 THE  2 5 MR.  2 6 THE  27 THE  2 8 THE  29  30  31 MR.  32  33  34  35 THE  36 THE  37  38  3 9 MR.  40  41  42  43  44  GRANT:  COURT: 6753  G. Williams (for plaintiffs)  In chief by Mr. Grant  1 so my friend has an opportunity to look at it.  2 There may be some debate over it and he can take a  3 look at it.  4 I'd like to return to your evidence and ask you  5 about Battle Hill.  And this is the place known as  6 the T'a'ootsip, which is close to Gitwangak?  7 A   That's correct.  8 Q   And was there any negotiations between the government  9 and the Gitwangak hereditary chiefs relating to  10 plans for that hill?  11 A   Yes.  12 MR. PLANT:  Is this during the course of the witness' tenure as  13 chief counsel?  14 MR. GRANT:  I'll come to that.  15 MR. PLANT:  Well, I'm concerned.  16 MR. GRANT:  17 Q   He said yes, and I'm going to come to the next point,  18 when.  Can you give just me a moment, Mr. Plant?  19 A   Yes.  20 Q   Can you tell me when that was and if you were involved  21 in it?  22 A   I can't remember exactly when it happened, but it  23 could have happened prior to my being chief  24 counsellor.  25 Q   Okay.  Were you involved as an acting band manager or  26 in your work with the band in those discussions?  2 7 A   Yes, I was.  28 Q   Can you explain what happened, what it's about?  29 A   I was involved with the archeological dig that  30 occurred at Battle Hill.  I was consulted by -- I  31 believe his name was George McDonald from the Museum  32 of Man out of Ottawa, I believe.  They came to  33 Battle Hill.  I believe it was around 1981,  34 somewhere around that period.  They excavated all of  35 the -- the whole hill.  They documented where the  36 fort was.  They documented where the -- the houses  37 were on top of the hill, where the palisade was.  38 They also documented at least 60 food pits at the  39 base of the hill.  And they found different fire  40 pits and different food items that -- bones, what  41 types of food was eaten at that time.  42 MR. PLANT:  I'm afraid I have to object.  I do so on the  43 assumption that this witness was not himself a party  44 to the dig.  At the moment we have his evidence that  45 he was involved, but I don't know if that evidence  46 supports the conclusion that he was actually there  47 on the ground or if what he's saying now is hearsay. 6754  G. Williams (for plaintiffs)  In chief by Mr. Grant  1 MR. GRANT:  2  Q  3  A  4  Q  5  6  A  7  Q  8  A  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  Q  34  35  36  A  37  38  39  40  41  Q  42  43  44  45  46  47  A  Did you see what was found?  Yes, I did.  And were you involved and were you present at times  while they were doing the excavation?  Yes, I was.  Can you proceed?  And the dig was done, and they took all the evidence  and they made a report back to the band, a fairly  thick report of trying to date the occupation, and  they also collected the stories from the different  elders, basically the same stories that I told  yesterday about -- about the canoe on the totem  pole.  They did the whole research document on that.  They -- Parks Canada was mainly in charge of that.  They have now erected signs -- one sign there.  They  have built steps down to the hill and they have  built another set of steps on top of the hill so the  tourists can come and see what the hill looks like.  They also had plans to publish a book about the --  the adaawk of that Battle Hill.  They also had plans  to erect signs and at least -- I believe it is  around 10 different signs right at the parking area  before you get to the hill itself.  And it was  mainly in English and in French.  And I had  discussed it with the chief that owned that -- the  Adaawk, Herbert Birk.  His name is Wii Hlengwax.  And he wasn't very -- he wasn't too in agreement  with -- with what the plans were.  And -- and the  plans to erect signs was -- and to do publications  of books about his Adaawk was never undertaken by  Parks Canada.  Did you advise him or did you -- were you present when  Herbert Birk, Wii Hlengwax, told him that he was  opposed to that?  I informed Herbert Birk of what was being planned and  he then advised Parks Canada what -- what his own  plans were.  That was his story.  That belonged to  his house and he didn't want books being published  about his own Adaawk.  I'd like to move into another area of your evidence,  Mr. Williams, and that is I'd like to ask you about  your own experience as a Gitksan person growing up  in Gitwangak with the fishery.  And can you tell us  when you first -- well, first of all, do you fish  yourself in the Skeena River today?  Yes, I do. 6755  G. Williams (for plaintiffs)  In chief by Mr. Grant  1 Q   And how long have you done that?  2 A   Ever since I was around seven, eight years old that I  3 started fishing with my grandfather and another  4 elder in the community.  There's two types of  5 fishing:  Just to set net.  That's when you leave  6 your net in the water overnight and for a period of  7 time.  The other method is through drift netting.  8 That's when you take a boat out and you drift along  9 the shore.  I went out with my grandfather, and he  10 was blind at the time, and some of my other  11 relations; that we helped him and he taught us how  12 to -- how to fish.  And also went out with Jim  13 Fowler, who taught me how to -- how to -- how to  14 drift net.  15 Q   Did you fish with Silos Innes?  16 A   Yes.  That's the other elder that I went fishing with.  17 Q   And he is now deceased?  18 A   That's correct.  19 Q   And your grandfather, who was blind, you're referring  20 here to Lelt or Fred Johnson?  21 A   Fred Johnson.  22 Q   I'm sorry.  Lelt -- when I say Lelt or Fred Johnson,  23 it's the same person?  24 A   That's right.  25 Q   Did you ever fish at a fishing site of Hanamuxw?  26 A  When my mother was in the hospital in around 1960, I  27 used to -- I stayed with my -- Gordon Johnson, and  28 his wife is from Hanamuxw's house, and we used to go  29 and check their -- go with them to check their net  30 at Kitsegukla near a fishing hole called Anda'ap.  31 Q   And that Gordon Johnson, who you stayed with, that's  32 the present Malii?  33 A   That's right.  34 Q   Today do you use certain or specific fishing sites?  35 A   I use my -- my grandfather's fishing site, who he has  36 located at around Boulder Creek.  That's  37 approximately seven miles west of Gitwangak.  I use  38 that fishing hole with his permission, and he's told  39 me that -- that I should use it as well.  He wanted  40 me to use it too and to show that he still owns it  41 and that nobody else uses it.  He gives me  42 permission.  I -- every year that -- I've done that  43 for the last three years, to use it at a fishing  44 hole called Gwin Elkw.  45 MR. GRANT:  Do you have a spelling or a number for that, Miss  4 6 Howard?  47 THE SPELLER:  G-w-i-n  E-l-k-w. 6756  G. Williams (for plaintiffs)  In chief by Mr. Grant  1 THE COURT:  Thank you.  GRANT:  That's one word, Miss Howard?  SPELLER:  There's a space between the G-w-i-n.  GRANT:  Q   Now, can you describe where that is located as to  which side of the Skeena River that site is located  and where it is located in relation to the Boulder  Creek -- mouth of the Boulder Creek and Skeena  River?  A   It's located on the east side of the Skeena and it's  on the side of Highway 16 and it's about 300 feet  above, up river from the mouth of Boulder Creek.  Q   And that site belongs to Lelt?  A   Yes.  Q   And can you explain why -- first of all, why does  Lelt, Fred Johnson, not use that?  A   Because my grandfather's around 96 years old now.  He's blind and he's in the hospital.  And I'm his  grandson.  And he wants to ensure that -- that  there's somebody there present and it's visible that  somebody is using it and somebody's not going to go  there and just claim it or use it without his  consent.  Q   Is there a Gitksan term for this -- this authorization  of having somebody use it to ensure that it's -- to  protect it, I guess?  A   There's a word called lilixs, meaning take care of it.  GRANT:  Do you have a number or spelling for that?  SPELLER:  L-i-1-i-x-s.  GRANT:  Q   Now, was anyone else -- was there any concern that --  was anyone else attempting to use this site that led  to your grandfather's concern?  A   There had been nets in there before without his  consent.  Q   And in the last three years that you've used it, has  anybody else tried to use that site?  A   No.  Q   Before you were using the site, was there somebody  from Lelt's house or someone related to him that was  using it?  A   Yes, there was.  There was a cabin on the side of  Highway 16 just below the bridge, highway bridge  there.  There's a cabin there.  And my grandfather's  relative from -- that was living in Glen Vowel used  to camp there every summer, and he used the sites  there.  And I -- his last name was Sampare.  That's  2  MR.  3  THE  4  MR.  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  MR.  29  THE  30  MR.  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 6757  G. Williams (for plaintiffs)  In chief by Mr. Grant  1  2  Q  3  A  4  THE  COURT  5  MR.  GRANT  6  THE  COURT  7  MR.  GRANT  8  THE  COURT  9  MR.  GRANT  10  Q  11  12  A  13  14  15  16  Q  17  A  18  Q  19  A  20  Q  21  A  22  Q  23  A  24  Q  25  26  27  A  28  29  30  31  32  33  34  35  36  Q  37  38  39  A  40  41  42  43  44  45  46  47  the only one I can remember.  Was that Willy Sampare?  That's right.  Willy Sampare.  How do you spell Sampare?  S-a-m, as in Michael, p-a-r-e.  All one word?  Yes.  Thank you.  What do you do when you -- first, what do you do when  you -- with the first catch that you get?  I make sure I give it to the chief who owns that --  that particular fishing site, and if my grandfather  is in the hospital, I give it to either Luulak or  Dax jok.  And is Luulak related to your grandfather Lelt?  Yes.  They are in the same house?  Yes.  And she is a chief in that house?  Yes.  And Dax jok is a chief in that house as well?  Yes.  After you provide -- given the first fish to Lelt or  another chief in his house, who else do you provide  fish to?  All my grandfather's grandchildren, my grandfather's  children, my own relatives, some of the elders in  the village.  Some people that they're in need of  salmon, I give them some fish as well, but most of  the fish that I catch there, we smoke them and we  half dry them and prepare our -- prepare for the  winter, and we can some.  We freeze some and salt  it, and we distribute that as well to some of our  family.  Okay.  When do you start fishing in the year?  What  time of the year do you start and what do you fish  for first?  I fish in April, a bit in April.  Probably the  beginning of April I go and catch some steelhead,  just enough to -- to have a taste of steelhead and  enough for our own family and other people in the  community, the older people in the community, the  elders that -- just have a taste of salmon for the  year.  I don't go for more than three weeks in  April.  Then I stop for about two weeks and then  beginning of May I try and go after spring salmon. 675?  1  2  3  4  5  6  7  8  9  10  Q  11  12  A  13  14  15  Q  16  A  17  Q  18  A  19  20  Q  21  22  23  24  A  25  Q  26  27  28  A  29  Q  30  31  A  32  Q  33  34  35  A  36  37  38  39  40  41  Q  42  A  43  44  45  46  47  G. Williams (for plaintiffs)  In chief by Mr. Grant  And we just get enough spring salmon to smoke and  make some half dried.  Then I usually finish.  Once  I have enough spring salmon, I usually finish and  don't go after anymore.  That usually happens around  the 1st of July, ends there.  Then I don't go  fishing until the last week of July to the second  week of August to get the second run of sockeye.  And that's -- and I finish there.  I don't go  fishing after that.  Is there any species that run after that, after the  sockeye, the second sockeye run?  There's -- the pinks start coming in the middle of  August.  The coho start coming in the middle of  August and the chums, but we don't use those.  And do you have a smokehouse yourself?  Yes.  I have a smokehouse.  And who prepares the fish that you catch?  My mother and my wife, and they do all the processing  in the smokehouse.  Now, you've described around -- or fishing times that  you use.  You're aware of the Department of  Fisheries and Oceans and permit systems that they  have implemented on the Skeena River system?  Yes.  And you're aware that sometimes those are for two days  a week or three days a week, different times usually  in a calendar week?  Yes.  Do you -- have you ever taken a permit for fishing in  the Skeena River?  No, I haven't.  And do you follow the Department of Fisheries' system  in terms of their time for closures, these two days  a week and three days a week systems they have?  No.  I don't really follow them.  I don't -- don't  really follow them.  I -- just when I need it.  If  my smokehouse is full, I -- if I don't need it, then  I'll pull my net and just when I need it and I have  the time, I'll go out and get fish, but, no, I don't  really follow it.  Why not?  Because we have our own system of consent.  My  grandfather gave me consent to use the site.  We  have our own laws and legal system that gives me  that right, and if I start going and getting  permits, people will be telling me that I've lost my  rights the moment I take a permit, and I don't want 6759  G. Williams (for plaintiffs)  In chief by Mr. Grant  1 to do that.  I've been trained.  I've been taught.  2 We have our own system and you have to maintain your  3 own laws, and I can't simply go and take a permit.  4 I can't do that.  5 Q   Do you ever trade your fish that you catch for other  6 goods?  7 A   I sometimes trade with seafood from -- from the people  8 down in Rupert.  I trade for -- sometimes for  9 oolichan grease for people in the Nass; just  10 exchange food with seaweed or hearing eggs.  11 Q   What happens when you're away, like now, and you're in  12 Court here, and from what you've described, this  13 would be a time of year when you would be fishing?  14 A   I have lots of relatives that I ensure that -- that --  15 that my -- my net is taken care of and my boat is  16 taken care of.  Usually the T'ewelasxw or Alan  17 Johnson would look after it.  It's -- he's related  18 to me and it's my grandfather's stepson.  He'll look  19 after it, or my brothers.  20 MR. GRANT:  Do you have a number for that?  21 THE SPELLER:  63, plaintiff's list.  22 MR. GRANT:  23 Q   I'd just ask if you could look at Tab 15 of the  24 document book, Mr. Williams.  My lord, my copy is  25 not stapled and -- that one isn't.  Oh, it is  26 stapled.  The exhibit is.  Do you recognize that  27 document?  It's an affidavit dated February 20th,  28 1986.  And attached to that affidavit as Exhibit A  29 is what purports to be a Gitksan-Wet'suwet'en  30 fishery bylaw dated February 19th, 1986?  31 A   Yes.  I do recognize it.  32 Q   And is that your signature on the affidavit?  33 A   Yes, it is.  34 Q   And on the third -- page 12 of the bylaw, is that your  35 signature under "chief counsellor"?  36 A   Yes, it is.  37 MR. GRANT:  I'd ask that that document be marked as the next  38 exhibit.  And I say that with some -- I think it may  39 already be listed.  I'm just not certain, my lord.  4 0 THE COURT:  All right.  Well, it can have the next number.  41 THE REGISTRAR:  575.  That's the affidavit, February 20th, and  42 the fishery bylaw, February 19th.  4 3 THE COURT:  Yes.  44 THE REGISTRAR:  Thank you.  575, my lord.  45 (EXHIBIT 575:  Tab 15, affidavit of Glen Williams  46 dated February 20, 1986 and Fishery bylaw dated  47 February 19, 1986) 6760  G. Williams (for plaintiffs)  In chief by Mr. Grant  1 MR. GRANT:  Tab 15.  My lord, I was going to be moving into  2 another area.  It may be appropriate for the  3 adjournment.  4 THE COURT:  Yes.  We'll adjourn.  Thank you.  5 THE REGISTRAR:  Order in court.  Court will adjourn until 10:00  6 a.m. tomorrow.  7  8  9 (PROCEEDINGS ADJOURNED UNTIL JUNE 1, 1988 AT 10:00 A.M.)  10  11  12  13  14  15  16  17  18  19 I hereby certify the foregoing to be  20 a true and accurate transcript of the  21 proceedings transcribed to the best  22 of my skill and ability.  23  24  25  26 Kathie Tanaka, Official Reporter  27 UNITED REPORTING SERVICE LTD.  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47


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