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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1988-05-11] British Columbia. Supreme Court May 11, 1988

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 6049  1 Vancouver B.C,  2 May 11, 1988.  3  4 (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT)  5  6 THE REGISTRAR:  Calling Delgamuukw and Her Majesty the Queen.  7  8 SOLOMON MARSDEN, resumed:  9 ALICE SAMPSON, Interpreter, resumed:  10  11 THE REGISTRAR:  I caution both the witness and the interpreter  12 you are still under oath.  13 MR. GRANT:  Yes, my lord.  Before Mr. Macaulay proceeds, there  14 is just one point I wanted to make out of yesterday's  15 examination and I refer to page 899 when Exhibit  16 24A --  17 THE COURT:  Page?  18 MR. GRANT:    — came in.  Page 899 of Volume 14.  This is with  19 respect to that Exhibit 24, the trapline map.  20 THE COURT:  Oh, yes, all right.  21 MR. GRANT:  And there was an argument at that point about  22 admissibility, and your lordship said at line 12  23 regarding this map:  24  25 "Well, the note I made of her evidence -- "  26  27 This was the evidence of Mary Johnson,  28  29 " -- was that I agreed that the large map, Exhibit  30 24A, correctly shows the area of trapline  31 06302021.  That's as far as it goes at the moment  32 and that's rebuttable.  There's nothing  33 conclusive about it."  34  35 And then you comment:  36  37 "It seems to me we're wasting a great deal of time  38 on matters over which there should be no dispute  39 at all.  But I hope we don't have that sort of-- "  40  41 And then Mr. Goldie interjected.  All I am saying is  42 that that was my understanding as well, that 24A was  43 only put in for the identification made at that time.  44 I just wanted to --  45 THE COURT:  Yes.  All right.  46 MR. GRANT:  So that is why I had forgotten and thought it was an  47 exhibit for identification and in fact it had been -- 6050  1  THE  COURT  2  3  MR.  GRANT  4  THE  COURT  5  6  7  8  CROSS-EXA  9  Q  10  11  A  12  Q  13  14  A  15  Q  16  A  17  Q  18  A  19  Q  20  21  A  22  Q  23  24  A  25  Q  26  27  A  28  Q  29  30  A  31  32  Q  33  34  A  35  Q  36  37  A  38  Q  39  40  A  41  Q  42  43  A  44  Q  45  46  MR.  GRANT  47  MR.  MACAU  :  Yes.  It was in for the limited purpose you  mentioned.  :  Yes.  :  All right.  Thank you.  Mr. Macaulay.  Perhaps we  should recognize the occasion that today is our first  anniversary of the trial.  Mr. Macaulay.  EXAMINATION BY MR. MACAULAY:  You were a commercial fisherman on the coast for many  years?  Yes.  And you started fishing when you were about 14 years  old?  14 years old.  Did you go with your father --  What's that?  -- to the coast the first time you went?  Yes, I went with my father when I first started.  And your father had been to the coast many years  before you first went with him?  Yes, he has been fishing for awhile.  And were you using sailing skiffs when you first  started fishing on the coast?  No.  You had outboard motors at that time when you first  started when you were 14?  Sailboat.  Sailboat.  When you went to the coast with your  father, did your mother go to the coast also?  Yes, she did go with him and they did work in the  cannery.  And you had brothers or sisters, did you?  Brothers  and sisters?  Yes.  And when they were young, did they go to the coast  with your mother and father and yourself?  Yes, we all went with our parents.  And when you went to the coast, did you take the  railroad from Gitwangak?  Yes, we used the train.  When you were young, when you were 14 years old there  was no road from Gitwangak to the coast, was there?  No.  The road was built during the war, the Second World  War, the road to the coast?  From? 6051  1 Q   From Kitwanga?  2 A   Yes.  3 Q   And during the war the Japanese fishermen were removed  4 from THE fishing on the coast?  5 MR. GRANT:  My lord, I just wonder what the relevance of this  6 question is to this litigation.  I am not -- I am not  7 talking about the scope of the area, but the question  8 of Japanese fishermen and their removal seems further  9 afield than we have yet gone in this case.  10 MR. MACAULAY:  We have already gone, my lord, with another  11 witness.  12 THE COURT:  We did?  13 MR. GRANT:  I probably didn't have the pleasure of being  14 present.  15 THE COURT:  I had the pleasure of being here but I have  16 forgotten.  17 MR. GRANT:  I don't know if there has been an objection raised.  18 I stand on the objection now if there has been no  19 ruling on it.  20 MR. MACAULAY:  It had an effect on the number and scope the  21 Indian fishery on the coast.  22 THE COURT:  All right.  Well, I don't think it's of any  23 relevance for -- in its narrowest terms, but if you  24 are satisfied that it's leading to something that will  25 be relevant, you made proceed.  26 MR. MACAULAY:  Thank you, my lord.  I will repeat the question.  27 THE COURT:  All right.  2 8 MR. MACAULAY:  29 Q   During the war before the 1942 season, fishing season,  30 the Japanese fishermen who had been on the coast were  31 no longer there?  32 A   The Japanese were against the Canadians, so this is  33 the reason why they did this.  34 Q   And one of the results was that more Gitksan were  35 needed to fish on the coast?  36 A   Yes.  37 Q   There were many families from Gitwancool who fished on  38 the coast during the 1940s?  39 A   Yes.  40 Q   And the season usually was from June till August?  41 MR. GRANT:  On the coast?  42 MR. MACAULAY:  43 Q   Yes.  The coast.  44 A   Yes.  45 Q   Before -- just before you stopped fishing in 1976, did  4 6 you have your own boat?  47       A   Yes, I bought my own boat and I became sick and this 6052  1 is why I quit.  This was in 1976.  2 Q   When you had your own boat, did you have a crew on the  3 boat or did you fish by your yourself on the coast?  4 A   I fished by myself.  5 Q   Did you ever miss a fishing season on the coast  6 between the age of 14 and the year 1976?  7 A   No.  No, I never missed a year.  8 Q   After you were married, did your wife come with you to  9 the coast when you went to fish on the coast?  10 A   Yes.  She always did come with me and we lived at a  11 lot of places; Cassiar, Porcher Island and Carlyle.  12 Q   Did your wife -- when you were out fishing, did your  13 wife ever work at the cannery, one of the canneries?  14 A   Yes.  She worked in the cannery.  15 Q   How old were you when you started cutting cedar poles?  16 A   I don't know how old I was, but I know it was in 1950.  17 1950.  18 Q   Yes.  And when you started cutting cedar poles, where  19 were you cutting them?  20 A  We started at Kitwancool Lake and we started here.  It  21 is my own territory.  22 Q   How many years after 1950 did you cut cedar poles?  23 A   I started in 1950 and I finished in 1969.  24 Q   And during all those years, did you always cut poles  25 around the Kitwancool Lake?  26 A   Yes.  27 THE COURT:  I am sorry, Mr. Macaulay, I may have not have heard  28 you correctly.  Did the witness say that he was  29 cutting poles at Kitwancool Lake?  30 MR. MACAULAY:  On his own territory in Kitwancool Lake.  31 THE COURT:  Yes.  And was your question now Kitwancool or  32 Gitsegukla?  33 MR. MACAULAY:  Kitwancool.  34 THE COURT:  Kitwancool.  Thank you.  35 MR. MACAULAY:  I wouldn't try to play a trick like that on the  36 witness.  37 THE COURT:  You played a trick on me, Mr. Macaulay.  The answer  38 was that he always cut poles around Kitwancool Lake.  3 9 MR. MACAULAY:  Kitwancool Lake.  4 0 THE COURT:  Yes.  Thank you.  41 MR. GRANT:  On his territory on Kitwancool Lake.  42 MR. MACAULAY:  On his territory.  43 Q   Was there a -- did you cut poles in the same season  44 every year or did it vary depending on the year?  45 A   I worked for Bell Pole and I -- that is how long I  46 worked and I never -- I quit for any length of time  47 were for a year. 6053  1  Q  2  3  A  4  5  6  7  Q  8  A  9  10  Q  11  12  A  13  Q  14  15  A  16  17  18  Q  19  A  20  Q  21  22  A  23  24  25  26  Q  27  A  28  Q  29  30  A  31  Q  32  A  33  Q  34  A  35  Q  36  37  A  38  Q  39  40  41  A  42  43  Q  44  A  45  Q  46  47  A  Well, you didn't cut poles during the commercial  fishing season?  We usually do our logging in the wintertime, because  we don't have any bigger equipment to use to haul the  poles.  We usually use horses.  And I usually quit for  the length of time I'm down the coast working.  Did you work for Hanson's?  It was -- this was before I got the contract for  myself and I worked for Hanson and others.  Well, then you worked for Hanson and others for awhile  and then you became an independent contractor?  Yes.  When you were an independent contractor, did you have  men working for you?  Yes.  A lot of people worked for me and they -- the  people change every year and I don't exactly remember  who all they were.  But you had a payroll?  Yes.  And you had to deduct income tax from the pay that you  gave your employees?  The deduction of income tax was done by Hanson and  Bell Pole Company and I was -- the only thing I  deducted was from the payroll was their grocery  supplies.  Did you operate a store at Kitwancool?  Because of my hard work this is why we had the store.  And did you and your wife operate the store your  yourselves?  Yes.  Is that store still in operation?  No.  Did you sell it to somebody else?  We closed it down because we didn't have any workers.  Do members of the Kitwancool band work at the Gitwanga  mill today?  Yes, they work.  And can you tell us about how many members of the  Kitwancool band work at the Gitwanga mill or  Gitwangak?  Not very much.  There is about five people and I don't  know the length of time they are working there.  Do you know Richard Benson?  Yes, I know him.  Richard Benson spent his childhood at or near  Gitwancool?  They lived in Kitwanga. 6054  1  Q  2  A  3  4  5  Q  6  7  A  8  9  Q  10  11  12  13  A  14  15  16  Q  17  18  19  20  21 THE  COURT  Was Richard Benson's father's a chief at Gitwancool?  They made their home in -- yes, he was a chief.  They  made their home in Gitwangak and this is where they  lived.  But he was a -- was Richard Benson's father a head  chief of a house at Gitwancool?  This has been a long time and I am not quite clear on  that.  Now, Richard Benson has given evidence that he stopped  trapping after the 1951 season because of the fur  prices at that time.  Did you stop trapping after the  1951 season?  Yes, that's about the time. We all see that the fur  market was really going down and most of us trappers  did this.  When you were a commercial fisherman did you fish  mostly in area four?  Yes, I fished in area four for a  number of years and then I got a gas boat and I fished  at five, six, seven, area five, six, seven, and then  in 1955 I came and I fished over here.  :  I am sorry, the end of that answer --  22 MR. MACAULAY:  Over here.  23 A   Here.  24 THE COURT:  Did you say when?  25 A   1955.  26 MR. MACAULAY:  1955.  27 THE COURT:  In 1955 fished over —  2 8 MR. MACAULAY:  Over here.  I'll ask the witness.  2 9 THE COURT:  All right.  Thank you.  3 0 MR. MACAULAY:  When you say "over here," you mean near Vancouver in  the Fraser River?  Yes.  A commercial fisherman has to have the ability to read  marine charts?  This is what they say today, recently. But in the  olden days we didn't do that. We don't have to do  that.  Did you learn from your father the areas of the  coastline that you needed to know in order to fish  commercially?  Yes, that was the main reason why they took me along  with them when I was a young boy and they -- he showed  me everything and this is why I know how it was.  Are there any members of the Kitwancool band who go  fishing commercially today?  Yes, there must be about six commercial fishermen in  31  Q  32  33  A  34  Q  35  36  A  37  38  39  Q  40  41  42  A  43  44  45  Q  46  47  A 6055  1 the Village of Kitwancool that fish today.  2 Q   The members of the Gitwancool houses who moved to  3 Kincolith years ago, are they still Gitksan?  4 A   Did you say are they counted as house members or --?  5 Q   Yes.  6 A   Or are --  7 THE COURT:  The question was are they still Gitksan.  8 MR. MACAULAY:  9 Q   Are they still Gitksan?  10 A   No.  If they have been transferred to another village,  11 if they have left the village behind and not returned,  12 then they are not.  But if they -- every time there is  13 a Feast or anything going on at the village and they  14 come back and then they are counted as Gitksan.  15 Q   When people left Gitwancool to go to Kincolith, was  16 that when you were very young?  17 A   I was quite young when this happened.  I was just told  18 about it and I never seen this.  19 Q   Now, the people who went to Kincolith, did that  2 0 include some women?  21 A   This is -- what happened, this is what I was told that  22 the whole family would leave.  They never left one  23 brother or sister behind, but the whole family left  24 the village and there must have been about a hundred  25 of them at that time.  2 6 Q   Now, the small children of mothers who came from  27 Gitwancool houses who never -- have never returned to  28 Gitwancool and have died in Nishga country, have they  29 lost their membership in Gitwancool houses?  30 A   It is very clear what you are trying to ask me or show  31 me and it is very clear to me what happened here.  32 When there is a death in the village, they moved into.  33 This is where the -- where the work is done.  They  34 bury their dead in that village where they moved to.  35 Q   Well, what I'm trying to find out, Mr. Marsden, is if  36 the grandchildren of those people must be alive today  37 whose mothers were Gitksan and whose grandmothers were  38 Gitksan.  Are those grandchildren today who live in  39 Nishga country, are they Gitksan?  40 A   In the beginning when the people left Kitwancool they  41 left for a reason and they never thought about the  42 house members or their houses.  They just took off and  43 left.  And today what happens, the younger generation  44 wanted to find out where they are from and so they  45 find out and they know where they are from.  And at  4 6 times you would meet up with some of them and they  47 would tell you -- they tell you who they are and who 6056  1 their mother was.  2 Q   And those young people, if they come back to a Feast  3 at Gitwancool held by a house in Gitwancool, do they  4 become members of that house if their mothers and  5 their grandmothers were members of that house?  6 A   Yes, there is -- they have always been people talking  7 to these people that have moved away because they know  8 that they are still members of that -- of the house,  9 and they have always tried to talk to these people  10 that have moved and asking them to move back to their  11 village.  Because when they are talking about the land  12 claims, they want all the Kitwancool Indians that have  13 lived there and stand together for the land claims.  14 And if they -- we know which houses they belong to and  15 if they come, then they are in that house.  16 Q   But if they don't come back, they are not in that  17 house?  18 A  We could not say that they do not belong in this  19 house.  It is always their house and we are always  20 expecting them to come back.  21 Q   What is the present population of the Gitwancool?  22 A   It's about four or 500.  23 Q   There are four or 500 people living in the village?  24 A   Yes.  Yes.  That's how many in the village.  25 Q   Now, you mentioned earlier in your evidence the long  26 house.  Every wilp had a long house, didn't it?  27 A   Yes.  28 Q   And I am showing the witness, my lord, the exhibit, if  29 I could see the original Exhibit 448.  And what I will  30 be doing, my lord, is opening the cover up to show him  31 the full photograph.  I am showing you Exhibit 448.  32 You have seen this yesterday and the day before.  And  33 there is a photograph showing Gitwancool as it used to  34 be?  35 A   Yes.  36 Q   And you remember Gitwancool when it looked like that?  37 A   Yes.  I was just a little boy when I seen this.  38 Q   And there are many poles there?  39 A   Yes.  40 Q   The photograph also shows the houses -- two of the  41 houses built over the places where chiefs were  42 cremated?  43 A   Yes.  44 Q   And even today there are some old houses of that kind  45 showing --  46 MR. GRANT:  Grave house.  47 MR. MACAULAY:  Well, my friend suggests the name grave house. 6057  1 In fact as I understand it, my lord, it was the house  2 over the place where the chief was cremated and the  3 witness agreed with that.  4 MR. GRANT:  No.  I was just trying to grapple with the word.  5 MR. MACAULAY:  6 Q   Even today there are the remains of some of those  7 houses at Gitwancool?  8 A   This is not used.  This here is not used as a  9 graveyard today.  10 Q   No.  But even today if you go to Gitwancool, you see  11 some of the remains of the old houses that were placed  12 over the cremation spot?  13 A   I don't know if there is any left of those houses  14 there.  They are all gone.  15 Q   The poles were raised by head chiefs after they took  16 their name?  17 A   Yes.  18 Q   And each chief had his own pole, each head chief had  19 his own?  20 A   Yes.  The poles that are in front of the houses of the  21 chiefs are theirs.  22 THE INTERPRETER:  Like he's pointed out these two here.  2 3 MR. MACAULAY:  24 Q   You are pointing to two poles.  25 MR. GRANT:  Second and third from the right.  Left on the front  26 cover of Exhibit 448.  2 7 MR. MACAULAY:  28 Q   Are those poles of your house?  29 A   Uh-huh.  Yeah.  This is the way it is.  This is  30 Xamlaxyeltxw's house and this is Gwashlam's.  31 MR. MACAULAY:   Just a minute, Madam Interpreter.  There is a  32 centre division of that photograph.  It happens to be  33 the spine of the book.  34 THE COURT:  Yes.  35 MR. MACAULAY:  And the interpreter and the witness before her of  36 course shows on the right-hand side of the spine a  37 house and then on the left-hand side, immediate  38 left-hand side of the spine a house in connection with  39 that answer.  40 MR. GRANT:  And the house on the right-hand side was  41 Xamlaxyeltxw's and the house on the left-hand side of  42 the spine was Gwashlam's.  4 3 MR. MACAULAY:  44 Q   Gwashlam?  45 A  And these were the two chiefs of the village, the head  46 of the Frog Clan and the head of the Wolf Clan.  On  47 your right-hand side this is Xamlaxyeltxw's house. 605?  1 This is Wutaxhayetsxw's house.  2 Q   That's next to — ?  3 A   To Xamlaxyeltxw's house.  And next to Wutaxhayetsxw's,  4 next to Wutaxhayetsxw is Gaakhl's house and that's the  5 Frog Clan.  6 MR. GRANT:  That's all the houses on the front cover, my lord.  7 MR. MACAULAY:  8 Q   Three houses, my lord.  9 A  And on the other side is Gwashlam of the Wolf Clan.  10 There is Gwashlam and next to Gwashlam there is Malii  11 and next to Malii, Haits'imsxw's.  12 MR. GRANT:  And those are going from the centre of the spine to  13 the left.  14 THE COURT:  On the back of the book.  15 MR. GRANT:  Which are the three houses on the back of the book.  16 MR. MACAULAY:  Yes.  17 Q   Each chief had his own design for a pole.  In other  18 words, if a chief, when he took his name, he didn't  19 just copy the pole of the man he succeeded.  He had  20 his own design, is that right?  21 A   It is the exact copy of the former chief.  It is not  22 the decision of the new chief just to put any old  23 thing on the pole.  It is the exact copy of the former  24 chief's pole.  25 Q   But doesn't each chief put at the bottom of the pole  26 the badge or emblem of his father's side?  27 A   Yes.  When a new chief is going to raise a pole, he  28 puts his father's Ayuks at the bottom of the pole.  29 But when after this chief dies and a new pole is  30 raised and a new chief is chosen, then they take the  31 bottom off and then -- when they raise this pole they  32 would put another one, that's the Ayuks of that  33 person's father.  34 Q   Your predecessor was Mr. Albert Douse in your house?  35 A   Yes.  36 Q   And on his pole the crest or Ayuks of his father who  37 was carved?  38 A   There is the law.  You can use this, this law and  39 not -- if you want to you could do this and I  4 0 didn't -- I didn't put -- I didn't do this when I  41 raised the pole.  This pole was erected by Albert  42 Douse and in one here that is standing, he moved it  43 here.  44 MR. GRANT:  Just for the record, which one are you pointing to?  45 A   This.  46 MR. GRANT:  That's the second one from the left on the front  47 cover of Exhibit 448. 6059  1 MR. MACAULAY:  2 Q   And is your pole exactly the same as that?  3 A   There are two poles there.  Albert Douse erected the  4 pole that is known as Ha' niilaahl gaak and I raised  5 the pole that is known as Gyedim gan alaa.  6 Q   Are they both exactly the same, those two poles?  7 A   No.  8 MR. GRANT:  Can I get the second name of the second pole from  9 Miss Howard?  10 A   This -- that pole of which is known as Ha' niilaahl  11 gaak is the pole that was raised in Gitangasx when  12 Sindihl came over for Gitangasx.  That other pole is  13 known as Gyedim gan alaa.  It is the pole where there  14 are people sitting around, where there is a smoke hole  15 on top.  They are sitting around the fire.  This is  16 the one that's known as Gyedim gan alaa.  17 MR. GRANT:  Can I get that spelling.  18 THE TRANSLATOR:  G-y-e-d-i-m space g-a-n space a-l-a-a.  19 THE COURT:  A-l-a-a?  2 0 A  A-a.  21 MR. MACAULAY:  22 Q   There are many more poles at Gitwancool than there are  23 at Gitsegukla today?  24 A   I am not too sure if there is more in Kitwancool than  25 Gitsegukla.  26 Q   There are more poles in Kitwancool than at Gitwangak?  27 A   Yes.  It seems that way.  28 Q   There are head chiefs at Gitwangak who have never  29 raised a pole?  30 A  Maybe Stanley has explained this what had happened  31 that the religion entered the Village of Gitwanga and  32 the religious people lived -- they separated from the  33 Indians that did not believe.  And this is what  34 happened and this is -- maybe this is one of the  35 reasons why there is not that many poles standing in  36 Gitwangak.  37 Q   There are many chiefs alive today in Gitsegukla who  38 have never raised poles?  39 A   Yes.  40 Q   The chief's name is first called out when he raises  41 his pole?  42 A   Yes.  Guxsan put a pole up.  43 Q   And Hanamuxw is now raising the pole?  44 A   Yes, she will.  45 Q   Hanamuxw's predecessor was Jeffery Johnson?  46 A   Yes.  4 7 Q   You knew him? 6060  1  A  2  Q  3  A  4  5  6  Q  7  A  8  Q  9  A  10  11  12  Q  13  14  A  15  16  17  18  19  Q  20  21  A  22  23  24  Q  25  26  A  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  Yes, I know him.  That he was the head chief of a Gitsegukla house?  Yes.  He was one of the chiefs in Gitsegukla and  Guxsan is the first and then Gwis gyen and then  Hanamuxw.  But Hanamuxw is a separate house for the others?  Yes.  And Jeffery Johnson lived at Gitanmaax?  Jeffery was always living in his own village,  Gitsegukla.  It's just when he married, this is when  he moved to Gitanmaax.  There are other head chiefs alive today who live  outside their own village?  Yes, this happens and they live in their father's  village.  Take me, for instance.  My children live in  my village, but they actually belong to Guxsan's  house.  They belong in Guxsan's house which is in  Gitsegukla and this is what happens.  The long house was where the head chief and his family  lived in the old days?  Yes.  They always did have a long house and they had  names for it and the name of our long house is Tsim an  luu sgeexs which was Sindihl's house before.  And in the same long house lived sub-chiefs of the  house to the left and to the right?  I want to tell you an adaawk while concerning the long  houses what happened.  It will only take about five  minutes.  In the beginning of time when a man becomes  a chief what the law he has to follow is that he  sleeps the back centre of the long house and what he  does is he takes a name and he's responsible for the  house members and we don't write anything down.  We  don't write -- there was no writing done in those  days.  So what happens is as soon as the chief wakes  up early in the morning, he gets up and he starts  telling the history to the people from the beginning  of time and then he starts telling the adaawk, what  adaawk they had in that house and then he tells his  other house members what to do and how they should do  it.  And this was the law of the Gitksan people.  It  gets passed on from generation to generation.  And the  hard work of the chiefs in the ancient times was to  pass the adaawk and the history from generation to  generation and their hard work reached us.  This is  why we know our adaawk and our history.  Because this  is what the chief did back then passing from  generation to generation.  I was quite young when I 6061  1 seen these long houses.  But I don't remember hearing  2 anybody talking, because I was too young then.  But I  3 seen these houses.  This is all I can say for the long  4 houses.  5 Q   The long house, the old long house had no windows,  6 just a door in front?  7 A   No.  8 THE COURT:  Could we get the spelling of that long house,  9 please, Mr. Macaulay.  There was a long house had a  10 long name.  11 MR. MACAULAY:  I think Mrs. Howard got that.  12 THE TRANSLATOR:   Tsim an luu sgeexs.  T-s-i-m —  13 THE COURT:  T-s-i-m.  14 THE TRANSLATOR:  Space a-n space 1-u-u space s-g underline.  15 THE COURT:  S-g.  16 THE TRANSLATOR:  E-e-x.  17 THE COURT:  X.  What does that name mean, please?  18 THE TRANSLATOR:  Tsim an luu sgeex.  19 THE COURT:  Yes.  20 THE TRANSLATOR:  That's where the water runs through the house.  21 THE COURT:  Oh, I see.  22 MR. GRANT:  He explained it at the beginning of his direct  23 evidence, my lord.  It's the same name.  24 THE COURT:  Yes.  All right.  Thank you.  25 A   I forgot to mention what the long houses are really  26 called.  It is called Wii luu ski yuuhlxamtxw, which  27 means where the -- where the history of the people  28 are.  2 9 MR. MACAULAY:  30 Q   And normally all the house members, the members of the  31 wilp lived in that house?  32 A   Yes.  33 Q   And when a house put on a Feast it was held in the  34 house?  35 A   Yes, this is what they used for the Feast.  36 THE COURT:  I am sorry, Mr. Macaulay, but there was another name  37 given for the long house which I don't think we have,  38 please.  39 THE TRANSLATOR:  Wii luu ski yuuhlxamtxw, W-i-1 space 1-u-u  40 space s-k-i space y-u-u-h-1-x.  41 THE COURT:  H.  42 THE TRANSLATOR:  L.  43 THE COURT:  H-l-x.  44 THE TRANSLATOR:  Underlined a-m-t-x-w.  4 5 THE COURT:  Thank you.  46 MR. MACAULAY:  And the witness gave the meaning of that also.  47 THE COURT:  Yes.  Where the history of the people are. 6062  1 MR. MACAULAY:  Right.  2 Q   Now, when the salmon started running the chiefs  3 organized the building of a barricade or fence on the  4 river, is that right?  5 A   Yes.  6 Q   And did both clans, that is the Frog Clan and the Wolf  7 Clan, work together on those fences?  8 A   Yes.  It's practically the whole village uses this  9 catching the fish known as T'in and they would have  10 fish traps attached to this and when they have enough  11 fish they would open the fence.  12 Q   The gate?  13 A   The gate.  And they would -- when one house has enough  14 then another house would start on this.  15 Q   And there were two main fishing sites near the  16 village, one near Moonlit Creek and the other just at  17 the entrance to the lake?  18 A   Yes.  The one at Moonlight Creek belonged to Wiixa and  19 the one up the lake belonged to Xamlaxyeltxw.  And  20 there was one that the village was using near  21 Kitwancool.  22 Q   Yes.  And the fishing was done under the direct  23 supervision of the head chiefs?  24 A   Yes, that's the way it is.  25 Q   And the head chiefs worked together so that each house  26 in turn would have a chance at catching the fish they  27 needed for the winter?  28 A   Yes.  29 Q   And the fish were cured or dried in the smokehouses  30 near the fishing sites?  31 A   Yes.  32 Q   And each house had a smokehouse, did it, its own  33 smokehouse?  34 A   Yes.  35 Q   And no nets were used in the river because it's too  36 shallow for nets?  37 A   No.  They didn't use the nets.  38 THE COURT:  What river are we talking about here, Mr. Macaulay?  39 MR. MACAULAY:  It's the Gitwanga River, my lord.  Moonlit Creek  40 branches off and then of course it flows into the lake  41 that's sometimes called Kitwancool and other maps it's  42 called Gitwanga Lake.  43 THE COURT:  Is it Moonlit or Moonlight Creek?  44 MR. MACAULAY:  Well, Moonlit is on the map I last saw, but some  45 of them call it Moon Creek and the witness has  46 referred to Moonlight Creek, but I don't think there  47 is much doubt that there is a Y in the river there. 6063  1 THE COURT:  Not Moonlight Bay.  2 MR. MACAULAY:  Not Moonlight Bay.  3 THE COURT:  Should we adjourn, Mr. Macaulay.  4 MR. MACAULAY:  Yes.  I don't know if I should apologize for  5 being a little longer, but this witness knows a great  6 deal about the matters he's been giving evidence on  7 and I am very reluctant -- in fact, I shouldn't  8 interrupt him.  9 THE COURT:  We all have to be somewhere every second of our  10 life, Mr. Macaulay.  We might as well be here.  Should  11 we adjourn until 2 o'clock.  12 MR. GRANT:  I just wonder if my friend has any sense of  13 finishing.  14 MR. MACAULAY:  I hope that in a half an hour I should be  15 finished, my lord.  16 THE COURT:  Thank you.  17  18 (PROCEEDINGS ADJOURNED PURSUANT TO LUNCHEON RECESS)  19  20 I hereby certify the foregoing to be  21 a true and accurate transcript of the  22 proceedings herein to the best of my  23 skill and ability.  24  25  26  27  28 Laara Yardley,  29 Official Reporter,  30 United Reporting Service Ltd.  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  4 7 (PROCEEDINGS RESUMED AT 2:00) 6064  S. Marsden (For Plaintiffs)  cross-exam by Mr. Macaulay  1  2 THE REGISTRAR:  Order in court.  3 THE COURT:  Mr. Macaulay.  4 MR. MACAULAY:  5 Q   Chief Marsden, when trapping was done when you were a  6 boy did you go out in family units, that is a father  7 and mother and children and other relatives?  8 A   There was always people going out on the territories,  9 but sometimes the whole family would go out on the  10 territories.  11 Q   Well, did you go out with your father and mother and  12 your brothers and sisters to the territories all  13 together?  14 A   Yes.  We did this.  15 Q   And were you -- was it in your time, that is when you  16 were young, that groundhog skins were used to  17 distribute at the feasts to the guests?  18 A   No.  It wasn't in my time, and I didn't see this.  19 Q   When you were a boy was -- were furs used for clothing  20 for members of the house?  21 A   No.  22 Q   And were furs in your time, when you were young, were  23 furs still being traded for goods instead of being  24 sold to it -- for cash?  25 A  When I was a young boy at that time, and when the --  26 what they told me was when they first traded with the  27 white people with their furs they -- for a mug, a tin  28 mug, they would trade that for a lynx, and for one  29 lynx they would give them a coffee mug, and today in  30 our language we call that hlabil weex is the name of  31 that mug.  That's what we call it today, because  32 hlabil weex means "against the lynx".  33 Q   But when you were trapping yourself did you do trading  34 like that for trade goods, or did you always sell your  35 furs for cash?  36 A   Before my time this was trade for goods, but in my  37 lifetime when I started trading it was traded for  38 money, because there was people that were from -- that  39 were there to buy it.  What happened, when the first  40 white man came here they started trading with our  41 furs.  If a person, an Indian person wanted a gun they  42 would hold the gun up and they would pile the furs  43 until it reached to the top of the gun, and this was  44 when they gave them the gun for the furs that were  45 piled up, and this was from the Hudson Bay Company.  46 Q   Did the head chiefs go out to the hunting grounds with  47 their families and relatives? 6065  S. Marsden (For Plaintiffs)  cross-exam by Mr. Macaulay  1 A   Yes.  This is what happens.  2 Q   And every hunting ground had a pole that represented  3 it, or the other way around, every pole had a hunting  4 ground associated with it?  5 MR. GRANT:  Just before the witness answers, my Lord, that -- I  6 would like my friend to frame it one way or the other,  7 because one may be true and the other may be false,  8 I'm not exactly sure how the witness -- every pole may  9 have a hunting ground but every hunting ground may not  10 have hunting ground -- a pole.  11 MR. MACAULAY:  I don't know how that would work. We'll take it  12 one at a time.  13 THE COURT:  Thank you.  14 MR. MACAULAY:  Does every pole have a hunting ground attached to it?  Yes.  The pole represents the -- the power and  ownership of the territory.  The totems — totem poles  that you see standing have these, and they're not just  standing there for nothing.  Now, you mentioned in your evidence earlier that you  at least on one occasion caught a -- or found there  was a trespasser on your hunting grounds and that you  took his traps; do you remember that evidence?  Yes.  It's the -- it's our law, the Gitksan law,  that's why I did it.  And was the trespasser a Gitksan or a non-Indian or a  Nishga?  The Gitksan person could not go onto any other  territory except his own, and it's the same -- and  it's the same with the white people, we won't let them  go on our territory.  But in this case the man whose traps you took, was  that a Gitksan or a white man or a Nishga?  He's one of the people from Kitwancool.  Now, there used to be 10 or 12 long houses at  Kitwancool when you were young?  Yes.  And in -- when the Kitwancool went to war they were  led by the head chiefs, were they?  The people of Kitwancool were taken by surprise.  Their village was taken by surprise and they did not  know that the -- these people were going to come and  slaughter them.  Now, when the Kitwancool then went -- pursued the  Ts'its'aawit, didn't they?  Yes.  There was this young man, that man that was  going to marry a young girl from Kitwancool, and he  15  Q  16  A  17  18  19  20  Q  21  22  23  24  A  25  26  Q  27  28  A  29  30  31  32  Q  33  34  A  35  Q  36  37  A  38  Q  39  40  A  41  42  43  44  Q  45  46  A  47 6066  1  2  3  4  Q  5  6  7  8  9  10  11  Q  12  13  A  14  15  Q  16  17  18  A  19  Q  20  21  A  22  Q  23  24  A  25  Q  26  27  A  28  Q  29  30  A  31  32  33  34  35  Q  36  37  A  38  39  40  41  42  Q  43  44  A  45  46  47  Q  S. Marsden (For Plaintiffs)  cross-exam by Mr. Macaulay  went back to Gitsegukla to pick up his belongings, and  he was coming back and he found the young girl that he  was going to marry, he found her dead on the ice.  But when the Kitwancool and their allies recovered  from this slaughter, they pursued the Ts'its'aawit,  they went after them.  The young man went and told the  people of Gitsegukla what had happened, and in turn  they brought them together and they were going to be  paid, which is known as Ghle t'sek ga', to help the  Kitwancool people to fight the Ts'its'aawit.  When the Kitwancool people fought the Ts'its'aawit  they were led by their chiefs?  Not only the Miin Simoogit, but the stronger people,  the braves, which they round up to go to war.  Now, after that war with the Ts'its'aawit the  Kitwancool then stayed in their own territories and  finished and hunted and trapped?  Yes.  And they did not go into Tsimxsan lands or into Nishga  territories?  No.  There was a -- there were a series of trails leading  from the village to places like Kispiox?  Yes, there is.  And trading was done along those trails between  villages?  Yes.  Did the Kitwancool go to the Nass River to take  oolichan fish?  Yes.  I just about reached this when they were still  getting the -- when they were still trading.  I  remembered my grandfather going over to — down  towards the Nass and making some -- drying some  oolichans, which is known as wilosim'as.  And people from Kitwancool went in March or April  every year to the Nass to get oolichans?  Only the people that could make it down there, that  could walk down there, and it's the same with the  people from Kispiox and the Wet'suwet'en people, they  did the same thing too, they walked to the Nass to get  some -- to trade.  And those people came back with boxes full of oolichan  grease?  Yes.  This was the only thing that was used for the  container for the oolichan grease, was the bent box,  which is -- which was known as Galenk.  And oolichans and oolichan grease were an important 6067  S. Marsden (For Plaintiffs)  cross-exam by Mr. Macaulay  1 part of the diet of the Kitwancool people?  2 A   Yes.  It was important.  3 Q   Now, today there is nobody who lives in a long house  4 at Kitwancool?  5 A   No.  Nobody uses it now.  6 Q   When you married, you and your wife lived in a single  7 family home?  8 A   Yes.  9 Q   And the feasts are held at a community hall?  10 A   Yes.  11 Q   Nobody walks to the Nass to take oolichans or bring  12 back oolichan grease?  13 A   Today the Nishga people come over to our villages and  14 sell the oolichans or the grease and they sell it here  15 and we give them how much, whatever they want.  16 Q   The Nishga drive over to Kitwancool?  17 A   Yes.  18 Q   And they sell the oolichans or oolichan grease for  19 cash?  20 A   Yes.  21 MR. MACAULAY:  There are no fences or barricades on the river at  22 the fishing spots anymore?  23 MR. GRANT:  Kitwanga River?  2 4 MR. MACAULAY:  25 Q   The Kitwanga River?  26 A  What are you talking about?  27 Q   Well, you gave evidence this morning that there used  28 to be barricades or fences built across the river at  29 the time the salmon started running, and that each  30 house -- each wilp would take its turn taking fish as  31 they went through the gate.  I'm asking you if  32 that's -- if -- how long it has been since there has  33 been a fence or barricade in the river?  34 THE WITNESS:  Well, not today.  35 Q   Not today?  There hasn't been the barricade or fence  36 for 50 years?  37 THE WITNESS:  I think so, yeah.  38 MR. MACAULAY:  Now, hunting — I'm not talking about trapping  39 now, but hunting in the -- outside the Indian reserves  40 in the Kitwancool area, hunting is open to everyone  41 with a hunting licence?  42 MR. GRANT:  Just a moment.  My Lord, I think that's a question  43 of law, isn't it.  It's a question of -- well, first  44 of all I think it's wrong, I think the -- because the  45 question of wildlife, I think that's something for  46 argument and for law.  The Wildlife Act says what it  47 says.  If that's — 606?  S. Marsden (For Plaintiffs)  cross-exam by Mr. Macaulay  1 THE COURT:  That's a legal matter, it certainly is, but as a  2 factual matter it's a matter that can be examined  3 on -- the witness may have some knowledge from what  4 he's seen and perceives and observes on the territory.  5 I think it's reasonable.  6 MR. MACAULAY:  I'm not asking the witness about the provisions  7 of the Act, my Lord.  8 THE COURT:  No.  9 MR. MACAULAY:  10 Q   I don't think he understood it that way.  But I'll  11 rephrase the question.  White people and people who  12 are not -- Indian people who are not Gitksan hunt game  13 during the hunting season, deer and that kind of game,  14 in the Kitwancool area outside the reserves?  15 A  When the permits apply to our people it is not right,  16 because it's not -- it's not our law, it is law of the  17 white people to sell -- the government sell the  18 permits to anyone in order to show to the game warden  19 when he is there.  20 Q   You see hunters with their guns hunting deer in the  21 Kitwancool area during hunting season?  22 A  What the white people there that have -- that do have  23 permits, hunting permits, what they do is they would  24 just kill the animal and they would just take the  25 horns and they would leave the rest lying around.  26 Q   You have seen that?  27 A   Yes.  I've seen it.  28 Q   And that's on Kitwancool territory?  29 A   Yes.  30 Q   The children between the ages of about 6 and 16 from  31 Kitwancool, they go to school?  32 A   Yes.  33 Q   And they go to school from about September until the  34 end of May or beginning of June?  35 A   Yes.  36 Q   And they go to school at -- some of them go to school  37 at Gitwangax?  38 A   Yes.  39 Q   And is there a school at Kitwancool?  40 A   Yes.  The higher grades go to either Gitwangax or  41 Hazelton.  42 Q   There is no cremation ceremony for head chiefs now?  43 A   No.  44 Q   And people from Kitwancool, that is members of  45 Kitwancool houses, travel all over British Columbia  46 for -- today?  47 A   Yes. 6069  1  Q  2  A  3  Q  4  A  5  Q  6  A  7  Q  8  A  9  Q  10  11  A  12  Q  13  A  14  Q  15  A  16  Q  17  18  19  20  A  21  Q  22  23  24  A  25  Q  26  27  A  28  29  30  Q  31  32  33  A  34  Q  35  A  36  Q  37  38  A  39  Q  40  41  A  42  Q  43  44  45  A  46  Q  47  S. Marsden (For Plaintiffs)  cross-exam by Mr. Macaulay  And some work in sawmills?  Yes.  And some have jobs maintaining highways?  Yes.  And some are school teachers?  Yes.  And others are health workers?  Yes.  And some still cut poles and do other kinds of  logging?  Yes.  Logging, they're logging.  And there are some who work on the railway?  Not anymore.  They used to, used to work on the railway?  Yes.  Now, before the white man came, the house and its head  chief and other chiefs were self-sufficient in that  they were able to get their own food on the territory  and distribute it?  Yes.  And the only time in the old days that members of a  Kitwancool house went outside the territory for food  was when they went to the Nass at the oolichan season?  Yes.  And the common people relied on the chiefs of their  houses for their survival?  It's correct in a sense, but it -- the young who are  strong are the people that help out and help the chief  for looking after the house members.  But the young strong people are the ones the chiefs  used in order to get a good supply of food in for the  house for the winter?  Yes.  And those young people obeyed their chiefs?  Yes.  And the chiefs always or almost always came from the  noble families, family or families in the house?  Yes.  And it was a great misfortune if a woman of a noble  family married a person with no name?  Yes.  And if anybody -- any member of the house was foolish  enough to marry someone from his own clan, he could be  put to death?  Yes.  It's the law, it's our law.  And if anyone was foolish enough to trespass on  another house's territory, the members of that house 6070  1  2  A  3  Q  4  5  6  7  A  S. Marsden (For Plaintiffs)  cross-exam by Mr. Macaulay  could put him to death?  Yes, by law.  And all the laws and the system that you have  described in the last few days were intended to  preserve that system from disintegration and from  harm?  Yes.  We follow all our laws, but the ones that  8 concern killing is the ones that has altered because  9 of the interference with the white man's law.  This  10 has altered, and this is what happened today.  11 MR. MACAULAY:  Thank you, chief, those are my questions.  12 THE COURT:  Thank you.  Mr. Grant.  13 MR. GRANT:  Thank you, my Lord.  In answer to this last series  14 of questions by Mr. Macaulay, he asked you about a  15 large number of the laws and you summarized some of  16 them, and your last answer was that "We follow all our  17 laws".  Are the Gitksan laws that you have described  18 still alive or functioning today?  19 MR. MACAULAY:  My Lord, with the greatest respect, this witness  20 was called to give evidence about Gitksan laws, and my  21 cross-examination was designed to deal with those  22 Gitksan laws.  I don't think that this is a proper  23 subject and a subject at all for re-examination.  The  24 witness has given days of evidence about Gitksan law  25 and how it's affected today and the extent to which it  26 is affected and the extent to which it may not be in  27 effect today and what the reasons are.  28 THE COURT:  Miss Sigurdson, do you have any submissions?  29 MS. SIGURDSON:  No, my Lord.  30 THE COURT:  Mr. Grant, what is open to you for re-examination?  31 MR. GRANT:  Well, my friend stopped at a certain point, and he  32 explained -- the witness just explained about the laws  33 concerning killing.  My friend listed a whole bunch of  34 laws and stated at the end "You agree that all the  35 laws are here to prevent disintegration of the system,  36 and my question arises out of that.  Are these laws  37 alive today.  38 THE COURT:  Isn't that the burden of his evidence in chief?  39 MR. GRANT:  Well, yes.  I won't -- I mean my submission is that  40 it does arise out of these last series of questions.  41 THE COURT:  Well, I'm sure it does, but it also duplicates  42 almost precisely his evidence in chief.  He told you  43 in chief all the laws that you asked him about, and it  44 seems to me that either there's nothing new in this or  45 you would be splitting your case.  I don't think  46 you're splitting your case, I don't think there's  47 anything new in it. 6071  Discussion  1  MR.  GRANT  2  3  4  5  6  THE  COURT  7  8  9  10  11  MR.  GRANT  12  13  THE  COURT  14  15  16  17  18  MR.  GRANT  19  20  21  22  23  24  THE  COURT  25  26  MR.  GRANT  27  THE  COURT  28  29  MR.  GRANT  30  THE  COURT  31  MR.  GRANT  32  33  34  THE  COURT  35  36  MR.  GRANT  37  THE  COURT  38  39  40  41  42  43  44  45  MR.  GRANT  46  47  Well, there is something new in it.  That is the  last question by my friend, Mr. Macaulay.  He said  "Were all the laws kept to prevent the  disintegration".  Maybe if I rephrase the question I  can raise it, I mean that was not raised on direct.  But the rules relating to re-examination surely are  broader than that, Mr. Grant.  They're not designed to  permit those kinds of nice distinctions, surely.  If  you've touched on the subject matter in chief, doesn't  that preclude re-examination?  I have the tenor of your thought, my Lord.  I'm not  going to press on the point.  I'm partly in a defensive mode anyway, Mr. Grant.  It seems to me if there was ever a case where there  should not be re-examination is when the subject  matter -- the re-examination was the burden of the  evidence in chief.  You were asked by Mr. Goldie about understanding  English and speaking English when you were on the bus  in Prince Rupert, when you drove a bus.  Have you been  able to understand the exchanges between the lawyers  and the judge in English that have occurred while  you've given evidence where they were not translated?  I don't know how he can answer that question, Mr.  Grant.  Well, I think if he understood them in English --  What if he didn't understand them, how could he  answer your question?  Well, he can say he didn't understand them.  I see, okay.  This is raised now because there seemed to be some  invitation about his understanding of the language and  the use of translation.  Does it really matter, given his evidence almost  entirely through interpreters?  Well, I'm concerned  If he had even a perfect understanding of English  would it really matter?  His evidence is what he has  given, the very few questions he answered in English,  which weren't more than three or four, and his  evidence is through the interpreter, that's his  evidence, and it doesn't really matter at this point  whether he has a perfect or less than perfect or  totally imperfect understanding of English.  I'd feel a lot more confident if this wasn't raised  in the very beginning of cross-examination and I  anticipated that my friends might well raise that 6072  S. Marsden (For Plaintiffs)  Re-in chief by Mr. Grant  1 there's some credibility or some weight.  2 THE COURT:  I am — I don't think I am allowed to take that into  3 account in determining the credibility.  I used to  4 think it was a factor, but I think the law now is  5 clear that people are entitled to give their evidence  6 in the language in which they're comfortable, and as  7 that's a right that they have and no inference can be  8 drawn.  I have no doubt that the witness understands a  9 lot of what is said, whether he understands it  10 perfectly is a matter of no consequence.  Anyone who  11 lives in this country picks up a smattering so they  12 can understand what is being said, but that doesn't  13 preclude them from giving the evidence in their own  14 language.  As I say, I don't think it matters now at  15 this point, even if this witness had a perfect  16 knowledge of the language.  17 MR. GRANT:  I just want to establish that that of course is not  18 the case.  19 THE COURT:  I'm sure it's not perfect.  2 0 MR. GRANT:  And —  21 MR. MACAULAY:  I am assuming, my Lord, that since the counsel  22 provided an interpreter that the witness' command of  23 English is not perfect enough to give the evidence the  24 way he wants to give it in English.  25 THE COURT:  That's what we have upon the -- reference upon which  26 we have to base our inferences.  27 MR. GRANT:  Yes.  I can assure the —  28 THE COURT:  I can assure you I'm not proposing -- as presently  29 advised I'm sure not going to change my mind about any  30 adverse inferences against Mr. Marsden based upon his  31 understanding or lack of understanding of the English  32 language.  I think it's a neutral factor at this  33 point.  34  35 RE-EXAMINATION BY MR. GRANT:  36 Q   You were asked by Mr. Goldie about at the time that  37 you were given the chief's name Xamlaxyeltxw that  38 there were some Gitsegukla and Gitwangax chiefs who  39 did not agree that you should take the name.  You  40 answered that Kitwancool chiefs said you should  41 take -- agreed that you should take that name.  Which  42 Kitwancool chief or chiefs approved your taking of  43 that name?  44 A  When my Uncle Albert Douse died I was working down the  45 coast, I was fishing, and I got a message from my --  4 6 from Sindihl.  He wanted me to come down and to get  47           that name.  We did go back to -- we returned back to 6073  S. Marsden (For Plaintiffs)  Re-in chief by Mr. Grant  1  2  3  4  5  6  7 MR.  8 THE  9 MR.  10 THE  11 MR.  12  13  14  15  16  17 MR.  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33 THE  34 MR.  35  36  37  38  39  40  41  42  43  44  45 THE  46  47  Kitwancool and we had a feast, and I received the  name, and we -- I am of the Frog clan, and our Niidil  was the Wolf clan, and once the Niidil speaks  everything is recognized, and after the Niidil speak  there was nothing to be said about the name that was  given to me.  GRANT:  Do you have a number for Niidil?  TRANSLATOR:  353.  GRANT:  353, my Lord.  COURT:  Thank you.  GRANT:  Q   And who is your Niidil that you're referring to?  A   Gwashlam and the rest of the Wolf clan.  Q   And Gwashlam and the Wolf clan agree that you take the  name?  A   Yes.  GRANT:  I'm going to refer to tab 5 of the provincial  defendant's document book at page 17.  I don't -- the  exhibit doesn't have to be given to Madam Interpreter,  I will just make reference to one quote on page 17  of -- this is the notes of Mr. Sterritt of the Canyon  City meeting, Chief Xamlaxyeltxw, and he makes  reference to yourself speaking, and the bottom right  hand column of page 17 it says a statement is  attributed to you, which I believe Mr. Goldie put to  you:  "I want to tell you the law of the chiefs  of our forefathers."  Why were you the one to tell the law of the chiefs of  the forefathers at that meeting?  INTERPRETER:  What was that statement, Peter, please?  GRANT:  Q   The statement made was:  "I want to tell you the laws of the chiefs of our  forefathers."  A   This law which we're referring to is the law that says  this is our law, the Gitksan law.  It says when a  person has left his house he will not take any  possessions, the Ayuks, the Nax nok, or the hunting  grounds.  COURT:  Mr. Grant, it's obvious now that the witness has not  understood your question, and I'll -- he's now telling  you what he said on that occasion.  Your question was 6074  S. Marsden (For Plaintiffs)  Re-in chief by Mr. Grant  1 why were you the one to tell them what the law was.  2 MR. GRANT:  3 Q   Yes.  4 A   The only thing he could take was the name that he has.  5 Q   Okay.  Why were you -- of all of the Gitksan chiefs  6 that were there, why were you the one who told the law  7 at this meeting?  8 A   Because there was young people present there and they  9 might not realize about this law that I — that --  10 they don't know the law as much as I do.  I know the  11 laws of our people, and I -- they chose me because  12 they knew I knew the laws of the Gitksan people, and I  13 was to talk to these young people that were present.  14 THE COURT:  I will have to take the adjournment, Mr. Grant,  15 please.  16 MR. GRANT:  Okay.  17  18 (PROCEEDINGS ADJOURNED AT 3:00)  19  20 I hereby certify the foregoing to be  21 a true and accurate transcript of the  22 proceedings herein transcribed to the  23 best of my skill and ability  24  25  26  27  28 Graham D. Parker  29 Official Reporter  30 United Reporting Service Ltd.  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  x  4 7 (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT) 6075  S. Marsden (For Plaintiffs)  Re-exam by Mr. Grant  1  2 THE COURT:  Mr. Grant.  3 MR. GRANT:  Thank you, my lord.  4  5 RE-EXAMINATION BY MR. GRANT, Continued:  6 Q   Chief Xamlaxyeltxw, I'd like to refer you to Exhibit  7 448, which was put in by the Provincial defendant.  8 The Histories, Territories and Laws of the Kitwancool.  9 Have you ever read that book?  10 A   I didn't go to school and I couldn't read all that  11 much.  I could make out the words, but I couldn't make  12 out some of the words that I see.  13 Q   Mr. Goldie asked you or referred to part of it where  14 it states on page five of Exhibit 448 that the  15 manuscript -- this was -- typewritten manuscript was  16 prepared in a typewritten form and submitted to the  17 Kitwancool for their approval.  Did you read or did  18 anyone read to you the manuscript of this book before  19 it was published?  2 0 A   No.  21 Q   You were asked by Mr. Goldie if -- you referred to the  22 fact that there were only two clans in Kitwancool.  23 The Ganada, or the Frog Clan, and the Lax Gibuu, or  24 Wolf Clan.  And you were asked about the other  25 villages, whether there were other clans in the  26 other -- how many -- whether there were only two clans  27 in other villages.  How many clans are there in  28 Kitsegukla?  29 A   The clans in Kitwancool are the Frog and the Wolf  30 Clan.  And the clans in --  31 THE COURT:  I'm sorry.  32 MR. GRANT:  Kitwancool.  33 THE COURT:   Wasn't the question Kitsegukla?  34 A  And the clans in Kitsegukla are the Frog and the  35 Fireweed.  3 6 MR. GRANT:  37 Q   What clans are in Kispiox?  38 A   I'm not sure.  39 Q   Mr. Goldie asked you about the role of the president  40 and you said that the president is the spokesperson  41 and the person, quote, "to protect the laws."  What do  42 you mean when you say the president?  I'm referring  43 here to Peter Williams, the present president.  But  44 the office of president.  What do you mean when you  45 say the president is to protect these laws?  46 A   Peter is just a representative for our people and he  47 does the decisions of the chief.  He's not there to 6076  1  2  3  4  Q  5  6  A  7  Q  8  9  10  11  A  12  Q  13  14  15  16  17  18  A  19  20  Q  21  22  23  24  25  26  27  28  29  A  30  Q  31  32  A  33  34  35  Q  36  A  37  Q  38  39  40  41  42  43  44  45  46  A  47  S. Marsden (For Plaintiffs)  Re-exam by Mr. Grant  protect the law.  He follows the decisions of the  chief and he's there because of the correspondence  with the other people.  That's why he's there.  When you say the correspondence with other people, who  do you mean?  To the government people.  Now, you were asked about Fred Johnson and you were  asked if he came from Kitwancool.  Was Fred Johnson's  mother in a house from Kitwancool or a house from  Gitwangak?  Yes, from Gitwangak.  They are from Gitwangak.  In explanation -- in an answer to a question by Mr.  Goldie you described that some Kitwancool have moved  to Kispiox and Gitwangak.  Are those people from  Kitwancool houses who have moved from Kispiox and  Gitwangak or are they still members of those  Kitwancool houses?  The Gitksan law could not change this -- they always  belong in the house where they came from.  I'd refer you to Exhibit 449 and in particular to the  map that's attached to that exhibit, and this, just so  you recall what this is, was a letter of 1986 with  attachments from Peter Williams.  And it had a map  attached which was a map of the territory.  The very  top -- and it's labeled Kitwancool Territory.  At the  very top of this map is Bowser Lake.  Then there is  this name called Gisa amaldit.  Do you recognize that  name, if properly pronounced by Miss Sampson?  I know the name, but I have never been there yet.  Do you know where that place is in relation to the  Kitwancool boundary?  Ambrose Derrick always talk about this.  This is  theirs towards near the Mezziadin, towards the  Mezziadin.  And is Ambrose Derrick of the Wolf Clan?  Yes.  They use this through Amnigwootxw.  Now, my question is -- just a moment.  My question is  that Mr. Goldie asked you if the Kitwancool territory,  quote, comes up to the bottom end of Bowser Lake and  from looking at that map it appears that the  Kitwancool boundary is at the Bell-Irving River below  where Bowser Lake flows out.  Do you know if -- can  you clarify whether that is correct, that the  Kitwancool boundary does not go all the way to Bowser  Lake?  It does not go right to Bowser Lake.  It goes close to  Bowser Lake, but it doesn't go right to — it's on 6077  S. Marsden (For Plaintiffs)  Re-exam by Mr. Grant  1 that -- this -- the left side of that river.  2 Q   And which river are you referring to?  Do you know the  3 name of it?  4 A   No.  5 Q   You were asked questions by both Mr. Goldie and Mr.  6 Macaulay about the Ts'its'aawit wars at Mezziadin, and  7 Mr. Goldie asked you if at the time of those wars if  8 guns were used or I believe you explained that guns  9 were used.  Was there only one war with the  10 Ts'its'aawit in Mezziadin or was there more than one  11 war with the Ts'its'aawit in Mezziadin?  12 MS. SIGURDSON:  Excuse me.  Perhaps my friend could put that in  13 the context the question.  I believe Mr. Goldie set up  14 the time frame.  It was the war referred to in the  15 adaawk.  And if there is confusion about that - and I  16 say there isn't confusion - in the answer that needs  17 to be cleared up, unless Mr. Grant can point to some  18 confusion in that context I would object to the  19 question.  20 MR. GRANT:  Well, with respect, my lord, I haven't got the  21 transcript reference, but there was a question about  22 the war with the Ts'its'aawit.  23 THE COURT:  The question was simply was there more than one war.  24 MR. GRANT:  That's right.  The question asked was the war with  25 the Ts'its'aawit referred to in the adaawk, was that  2 6 after the white man came.  And my question to the  27 witness, quite simply, does the adaawk tell about one  28 war or was there more than one war described in the  2 9 adaawk.  30 THE COURT:  Why don't you just leave it as firstly was there  31 more than one war and then go on from there.  32 MR. GRANT:  Thank you, my lord.  33 Q   Was there more than one war with the Ts'its'aawit?  34 A   I was told only of one war.  One war.  And this was  35 what I was told.  Just with that one war between the  36 Ts'its'aawit people.  But there are times when there  37 was people killing each other on the territories.  38 Q   Will you -- I am referring now to the Canyon City  39 meeting and you were asked about what the Nishga said  40 and I believe your answer was this is what they call  41 them, adaawk, it is a common story, Txemsim among all  42 the people.  What do you call the Tsimxsan story?  Is  43 it an adaawk or is it something else in Gitksan?  44 THE INTERPRETER:   I think he misunderstood my question, but he  45 said that that was just the common story that  46 everybody knew and they don't look at it as an adaawk.  47 They look at it as a common story known amongst all 607?  Marsden (For Plaintiffs)  Re-exam by Mr. Grant  1  2 MR.  3  4  5 MR.  6 THE  7 MR.  8 THE  9 MR.  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  2 6 THE  2 7 MR.  2 8 THE  2 9 MR.  30  31 THE  32 MR.  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  GRANT  Q  A  GRANT  COURT  GRANT  COURT  GRANT  Q  A  COURT  GRANT  COURT  GRANT  COURT  GRANT  Q  the people.  Is there a name in Gitksan for that type of story?  It is called Ant dii malasxw.  It is not an adaawk.  Do you have that word?  It's on the list.  We got that from Miss Mckenzie.  Ant dii malasxw, I think we did actually.  Yes.  You referred to Michael Bright at that meeting as  being from Gwashlam's house and then you said he  didn't return to Kitwancool to attend Feasts.  If  Michael Bright came to Kitwancool to one of the  Feasts, for example, of Gwashlam's own Feast, under  Gitksan law could he be allowed to use Gwashlam's  territory?  They left Kitwancool when I was just a little boy and  Michael has not returned to Kitwancool.  But even  this -- this happened.  He could -- even though this  happened, he could still go on Gwashlam's territory.  I'd refer to document 1845-64 which is part of tab 6,  my lord, of the blue document book and it was a letter  to which -- I don't believe it was put in as an  exhibit yet, but it was a letter to which Mr. Goldie  did refer.  it at tab six?  What page is  64.  Thank you.  It's 1845-64,  It's a letter dated May 11, 1946 at  the bottom.  Yes.  Do you have it, my lord?  Mr. Goldie asked you about your father, Douglas  Marsden, writing to the game warden or communicating,  and this letter was between the Indian Affairs branch  and the game warden about who should be on a trapline.  And I just want to ask you about these names that are  referred to here.  One of the things that is said here  is that Douglas Marsden stated that Fred and Rufus  Good - here it's a trapline, but it's referred to as a  trapline registration - should really be in the  following order.  And I am going to give you these  names which Madam Interpreter may want in front of her  so she can remember them.  Amos Williams, bracket  Head; Douglas Marsden; Fred Good; Rufus Good; Gordon  Johnson; Stirling Johnson and Robert Bright.  Can you  tell his lordship why your father would want those -- 6079  S. Marsden (For Plaintiffs)  Re-exam by Mr. Grant  1 that to be the order of the people on the territory?  2 MS. SIGURDSON:  Excuse me.  My lord, I object.  The only  3 question asked by Mr. Goldie was whether Douglas  4 Marsden had the power to change the names or add names  5 to the register.  There is no further question on that  6 document.  7 MR. GRANT:  It's part of the documents -- an enormous number of  8 these documents that came in as part of their  9 defendants' documents, my lord, and he is proposing to  10 tender these as exhibits.  Some issue was made out of  11 the fact that the witness' father would have done  12 this.  I want him to have an opportunity to explain  13 why that was done.  And in fact I think it was even  14 imputed at some time that this may or may not follow  15 the matrilineal line and I would like to have the  16 opportunity to explain that.  17 THE COURT:  I think there is considerable force in the  18 objection, but in as much as the document might become  19 an exhibit, I think I will allow you to ask the  20 question subject to the objection.  21 MR. GRANT:  Thank you, my lord.  22 THE COURT:  I do not think Mr. Goldie opened up the whole area  23 for re-examination, if as Miss Sigurdson says all he  24 asked was does Mr. Douglas Marsden have the power to  25 change the names on the registration.  But --  26 MR. GRANT:  But this is —  27 THE COURT:  These documents may become exhibits.  I am going to  28 allow you to ask the question subject to the  29 objection.  30 MR. GRANT:  Thank you, my lord.  31 Q   Madam Interpreter, can you follow the question now,  32 which is that I referred to the names on the first  33 column and I'm asking why your father would have  34 requested that the order of the people on the  35 territory which was registered under the name of Fred  36 and Rufus Good be in that order?  37 A   Those are the members of a house and they are all in  38 one house.  39 Q   In which house?  40 A  Malii's house.  41 Q   I would refer you to the names Ambrose Derrick; John  42 Derrick; Eli Grey; Sam Sampare; Fred Sampare; George  43 Sampare; Ambrose Sampare; Jimmy Morgan and Aldolphus  44 Morgan with a reference to the John Derrick trapline.  45 Can you say why your father recommended that those  46 people all be put in that order on that territory?  47 A   That is the same Wii' na t'ahl in the house of 6080  1  2  Q  3  4  5  6  THE  COURT  7  8  9  MR.  GRANT  10  THE  COURT  11  12  MR.  GRANT  13  Q  14  15  16  17  18  19  20  21  A  22  23  Q  24  A  25  Q  26  27  28  29  A  30  31  32  Q  33  34  35  36  37  38  39  40  41  42  A  43  44  45  46  47  MR.  GRANT  S. Marsden (For Plaintiffs)  Re-exam by Mr. Grant  Luuxoon.  And finally there was a reference to Albert Douse,  your father's -- oh, I am sorry, your uncle's trapline  and it says there with reference to the names John R.  Derrick, Albert Douse --  :  Surely you don't need to read them all, Mr. Grant.  Can't you ask the question under some generalized  form?  I have to adjourn at four o'clock, Mr. Grant.  :  I am almost through, my lord.  :  All right.  Well, you read them all and the  interpreter reads them all again and really --  Well, I will ask -- if you just listen to these names  and ask if these are in the same house:  John R.  Derrick; Albert Douse; Soloman Good; Godfrey Fred  Good; Barney Good; Robert Good; Daniel James Good;  Ivan Good; Edgar Evan Good; Joseph S. Derrick and E.  Jonathan Derrick.  Why would those people all be on  one trapline?  And without saying the names again if  you could just ask him the question.  They are the members of one house.  That's the same  thing as the rest.  And which house?  Xamlaxyelt's house.  You were asked by Mr. Goldie about hunting on the  territory and whether you hunted for meat to use in  the winter.  Did you also bring meat back from the  territory to the village?  That is most important part to us that we bring back  whatever we get from the territory; we don't waste it  and leave it behind.  I'd refer to Exhibit 461A and it's not necessary to  pull it out at this stage.  And this was a letter that  was talking about Walter Douse, after the death of  Walter Douse that the blanket trapline was put in the  name of Abel Campbell, Gwashlam; Walter Derrick;  Solomon Marsden; and Robert Good.  Can you explain why  the blanket trapline was put in the names of those  four people, that is Abel Campbell, Walter Derrick  Solomon Marsden, yourself, and Robert Good after the  death of Walter Douse?  When the -- when our people first picked up the  registration, trapline registration, the chiefs picked  the caretakers of the territories and Walter Douse was  a caretaker and after he died I was chosen to be a  caretaker.  :   My reference, just for the record, should have been 6081  Marsden (For Plaintiffs)  Re-exam by Mr. Grant  THE  MR.  THE  MR.  COURT  GRANT  COURT  GRANT  Q  to Exhibit 459, my lord, not 461A.  459?  Yes.  Thank you.  9  10  11  12  13  14  15  16 MS.  17  18  19  20  21 MR.  22  23  24  25  2 6 THE  2 7 MR.  2 8 THE  2 9 MR.  30  31 THE  32  33 MR.  34  35  36  37 MR.  38  39 THE  4 0 MR.  41 MR.  42 MR.  4 3 MR.  44  45  46  47  And as well as yourself and Robert Good, you have  already explained that you are.  Is Walter Derrick,  was he a chief of the Wolf Clan?  A   Yes.  Q   Mr. Goldie referred you to some correspondence to the  game warden relating to Frank Benson.  When that issue  arose about Frank Benson in around 1969, was that  raised in the Feast hall?  When it was the issue about  Frank Benson going on your trapping ground without and  he should not have.  SIGURDSON:  Excuse me.  Could my friend advise how that  arises out of cross-examination?  The question was  directed did the parties go to see the game warden.  I  don't think the Feast came into the question in any  way.  GRANT:  Well, these are exhibits, my lord, which refer to  this.  For the first time it's raised on  cross-examination.  I just am asking one question  which is was it raised in Feast hall as well.  I mean  for --  COURT:  But then you are going to ask what was said.  GRANT:  No, I am not going to ask what was said.  COURT:  All right.  GRANT:  I just want to know if it was raised in the Feast  hall.  I am going to allow it.  COURT  A  GRANT  Q  No.  Did -- Mr. Macaulay this morning asked you about  whether you stopped trapping after 1951 because of fur  prices.  Did you resume trapping on your territory?  MACAULAY:  My lord -- my lord, the witness in chief gave  evidence on that, when he resumed trapping --  COURT:  That he —  MACAULAY:  — at the very beginning.  GRANT:  Do you -- do you have a reference for that?  MACAULAY:  He said two or three years ago.  GRANT:  Yes.  Yes.  All right.  I won't —.  Q   You were asked by Mr. Macaulay and you described with  reference to the photograph on the front and back  cover of Exhibit 448 these poles and you indicated  that Albert Douse had raised a pole and you had raised 6082  1  2  3  A  4  Q  5  6  7  8  9  A  10  Q  11  12  13  14  15  16  A  17  18  19  MR.  GRANT  20  THE  COURT  21  22  A  23  THE  COURT  24  A  25  THE  COURT  26  27  A  28  THE  COURT  29  30  31  32  33  THE  COURT  34  35  36  MR.  GRANT  37  38  39  THE  COURT  40  41  MR.  GRANT  42  THE  COURT  43  44  45  46  47  S. Marsden (For Plaintiffs)  Re-exam by Mr. Grant  a pole.  Is Albert Douse's pole, that is the pole he  raised, still standing?  Yes, it's still there.  You were asked about the long house and you described  how chiefs -- in answer to Mr. Macaulay how the chiefs  explained the adaawk in the long house.  Were the laws  taught in the long house in the same way as the  adaawk?  Yes.  You were asked -- okay.  You were asked about the  oolichans and the Nishgas now come to your village and  sell oolichans, and there is a road from Kitwancool to  the Nass you described.  Is that road that's between  the Kitwancool and the Nass, does that follow the same  route as the old trails to the Nass?  No.  The grease trail is at a different place.  It's  not that same road that they use today before the  automobile came.  Those are all my questions on redirect, my lord.  Thank you. Mr. Marsden, I only have one matter to  ask you. When did you drive a bus in Prince Rupert?  1969.  And for how long?  Three years.  And that was when the fishing season was -- between  fishing seasons or had you retired by then?  I was still fishing.  I see. All right. Thank you, Mr. Marsden, you're  excused.  (WITNESS ASIDE)  Can counsel indicate whether it would be useful to  keep these papers for the next witness or should they  be put away?  I believe not.  I don't believe that the Vernnon  Smith documents are necessary, but possibly the  Solomon Marsden may be.  All right.  So we adjourn then until Monday morning  next.  Yes, my lord.  Yes, all right.  I wish you all a pleasant two days  off.  Thank you.  (PROCEEDINGS ADJOURNED UNTIL MONDAY, MAY 16, 1988 AT  10:00 A.M.) 6083  S. Marsden (For Plaintiffs)  Re-exam by Mr. Grant  1 I hereby certify the foregoing to be  2 a true and accurate transcript of the  3 proceedings herein to the best of my  4 skill and ability.  5  6  7  8 Laara Yardley,  9 Official Reporter,  10 United Reporting Service Ltd.  11  12  13  14  15

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