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Delgamuukw Trial Transcripts
British Columbia. Supreme Court
In the Supreme Court of British Columbia, between: Delgamuukw, also known as Albert Tait, suing on his own behalf and on behalf of all the members of the House of Delgamuukw, and others, plaintiffs, and Her Majesty the Queen in right of the Province of British Columbia and the Attorney General of Canada, defendants: proceedings at trial.
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506 1 MAY 25, 1987 2 SMITHERS, B.C. 3 4 THE REGISTRAR: Order in court. In the Supreme Court of British 5 Columbia this 25th day of May 1987. Delgam Uukw and 6 others and Her Majesty the Queen. 7 THE COURT: Before you begin, Mr. Plant, I mentioned the Grand 8 Trunk Railway case the other day. Perhaps you could 9 give that, Madam Registrar, to Mr. Grant and when he 10 and his side have looked at it they can pass it onto 11 the other counsel if they're interested in it. It has 12 some useful wisdom about examination in chief and 13 leading questions and things of that type. 14 MR. GRANT: Thank you, My Lord. 15 THE COURT: Mr. Plant? 16 MR. PLANT: Thank you, My Lord. 17 THE REGISTRAR: Witness, I remind you you're still under oath. 18 19 CROSS-EXAMINATION CONT. BY MR. PLANT: Mrs. McKenzie, you testified on Thursday that you lived on the Gitanmaax Indian Reserve, you recall that? Yes. And that is where the Gitanmaax, the members of the Gitanmaax Indian band live, is it not? Yes. And does the Gitanmaax band have any other reserves? Would you rephrase that? Well, I'll ask it again and I'm only asking to your knowledge. To your knowledge, do -- does the Gitanmaax band have any other parcels of land apart from the village of Gitanmaax? Yes. That are set aside for the members of that band? Yes. Do you know where they are? Well, there's -- I've never been to a council meeting where they set reserves of the band of Gitanmaax. So this is not a subject that you know anything about? No. Do you know the approximate population of the Gitanmaax reserve? I'm afraid I don't. Can you tell me if there's electric light on the reserve? Yes. Is there electric power on the reserve? 20 Q 21 22 23 A 24 Q 25 26 A 27 Q 28 A 29 Q 30 31 32 33 A 34 Q 35 A 36 Q 37 A 38 39 Q 40 A 41 Q 42 43 A 44 Q 45 46 A 47 Q 1 A 2 Q 3 A 4 Q 5 A 6 Q 7 8 A 9 Q 10 A 11 Q 12 13 A 14 Q 15 A 16 Q 17 18 A 19 Q 20 A 21 Q 22 23 A 24 Q 25 26 A 27 Q 28 29 30 A 31 Q 32 33 A 34 Q 35 A 36 Q 37 A 38 Q 39 40 A 41 Q 42 A 43 Q 44 A 45 Q 46 47 507 Well, there's lines going through the reserve, yes. And there's a road that goes through the reserve? Yes. And it connects to the highway up at New Hazelton? Yes. Do the members of the Gitanmaax band own automobiles and trucks? Yes. Do you know where the reserve gets its water from? It comes from an area four miles out of Gitanmaax. Does it come from a stream or a river that you know of? A stream. But you don't know the name of it? No, I don't. Do you know if the band has a water licence for the use of that water? I'm afraid not. You don't know? No, I don't know. Do any of the children on the reserve attend school in Hazelton? Yes, they do. And are you a registered member of the Gitanmaax Indian band? Yes. Now, I wanted to ask you a few questions about the Feast for the late Ellen Johnson who held the name Anhloo'o? Yes. And I have that as A-n, new word, capital H-l-o-o-'-o. Was Ellen Johnson a high chief of the Gitksan? Yes. What -- and she was in Luus's House? Yes. Did she ever have her own House? She's always been in Luus House. Luus is L-u-u-s. And that name is now held by Dorothy Weget? Yes. That's the name of Anhloo'o? Yes. And Dorothy Weget sometimes goes by the name Clara? Yes. When she became -- when Mrs. Weget became Anhloo'o, as I understand it, she took over the names and the songs and the territory of Anhloo'o; is that correct? 508 1 A Yes. 2 Q Where's that territory; do you know? 3 A It will be on Luus's territory. 4 Q So it's part of Luus's territory? 5 A Yes, because she's from Luus's House. 6 Q Do you know if she has her own part of the territory? 7 A She's one of the chiefs in Luus's House so she's a 8 sub-chief and a wing. 9 Q And does that mean that she has a right to use all of 10 Luus's territory? 11 A Yes. That depends on Luus himself because that's his 12 House and his territory. 13 Q And he makes the decisions? 14 A Yes. 15 Q So she doesn't have her own right to any part of that 16 territory? 17 A No, that's not so. She's -- she has rights in Luus's 18 House. 19 Q But the rights depend on what Luus says? 20 A Yes. Luus being the head chief of that house and 21 Anhloo'o is a sub-chief in Luus's House so she has the 22 authority. Luus has more authority, but she has a 23 right of that territory and whatever Luus has. 24 Q Does she have a right to that territory even if Luus 25 says no? 26 A Yes. She has the right. She has the right to be on 27 Luus's territory. 28 Q Does she have the right even without Luus's permission 29 or does the right depend on having Luus's permission? 30 A We have to get together in a meeting when anyone from 31 a House would, like Anhloo'o there, probably she'd 32 want to go on the territory or her children and if 33 they have a fishing place out there she'd go there if 34 she wants to go there. A meeting has to be formed 35 between her and Luus because they're the only two 36 there, and of course Luus would give her the 37 permission. 38 Q And do I understand your evidence correctly that there 39 is no special part of Luus's territory that belongs to 40 Anhloo'o? 41 A Anhloo'o's territory is with Luus. 42 Q Are they the same territory? 43 A I'm not -- I can't say yes, I can't say no. I don't 4 4 know. 45 Q Is it that you don't know or that you don't want to 46 speak for Luus? 47 A Well, I don't want to say anything out of place in 509 1 this courtroom. I want to say the truth always. 2 Q And it's for Luus to say what his territory is? 3 A Yes. Yes. He's one of the plaintiffs I know, so it's 4 up to him to speak of that. 5 THE COURT: Well, I don't think that's right, Mr. Plant, with 6 respect to the witness. If a witness has knowledge 7 they must answer. Now, if she doesn't know of course 8 it's another matter, but I don't think that I can allow the private rules of the plaintiffs to displace the ordinary law. If a witness has knowledge, he must answer, provided of course the question is relevant. PLANT: Well, with respect I agree with that, My Lord. I'm not certain if my friends agree with that proposition. COURT: Well, I'd be glad to hear from them if they do not. Mr. Grant? GRANT: Well, My Lord, with respect to the question of what happened, as I understood the answer of the witness, the witness said "I don't know.". COURT: No, I don't think she said that. She was offered that. She was given that opportunity. GRANT: No. No. Before she was given that opportunity she was asked "Is Luus's territory the same as Anhloo'o's?", and she said "I don't know." Then she was asked "You don't know or you don't wish to speak for Luus?". She was then given this other option -- Well — - so I'd -- -- that may be right. And there's no harm in canvassing it again, but I think that we should come to some determination of this legal question at some time and it's arisen before in interlocutory proceedings and it's arisen again now, and I don't think that we should beat around the bush about it. I think we should grasp the nettle and deal with the question. Witnesses cannot in my view, in my present view at least, subject to always what counsel persuade me, say "Well I don't think that I should answer that. Someone else should answer it." That's not the test that I think should be applied. GRANT: Well, what I'm concerned about, My Lord, is that in the circumstances here the tests are being set up by my learned friend artificially because my understanding of the answer was that the witness didn't know. COURT: You may be right. My recollection doesn't go back that far in the evidence, but Mr. Plant has put the question to her again and she has declined really to 9 10 11 12 MR. 13 14 THE 15 16 MR. 17 18 19 THE 20 21 MR. 22 23 24 25 2 6 THE MR. THE 27 28 29 30 31 32 33 34 35 36 37 38 39 4 0 MR. 41 42 43 44 45 THE 46 47 COURT GRANT COURT 1 2 3 4 MR. GRANT 5 THE COURT 6 7 MR. GRANT 8 9 10 THE COURT 11 12 MR. GRANT 13 14 MR. PLANT 15 Q 16 17 A 18 Q 19 20 A 21 Q 22 A 23 Q 24 A 25 Q 26 A 27 Q 28 A 29 Q 30 31 32 A 33 Q 34 35 A 36 37 Q 38 A 39 Q 40 41 A 42 Q 43 44 A 45 Q 46 47 510 answer on the grounds that Luus should speak for his territory, and I think with respect that's somewhat simplistic. : Well, with respect, that was a leading question. : Oh, Mr. Grant, we don't need to debate the matter endlessly. : All I'm saying is that it was put to her "Should Luus answer the question?" and she gave an answer then, in other words, it was suggested to her -- -- : That was part of it, but only part of it. Let's deal with the question again and get it straight. : Yes, I think it's a question of whether she knows or doesn't know first. Mrs. McKenzie, Luus sits right beside you at the Feast table -- Yes. -- doesn't he? And he is very close to you in your House isn't he? He's part of your wil'nat'ahl? Yes. And Anhloo'o is also part of your wil'nat'ahl? Yes. Do you know where Luus's territory is? No. You don't have any idea? No, I don't. Do you know where Anhloo'o's territory is? No. And do you know if Anhloo'o has any separate rights to a separate parcel of territory within Luus's territory? No. For how many years has Jeffery Harris held the name Luus? When his brother Chris Harris, the late Chris Harris, died, and he was the one that had the name of Luus. And was that ten years ago or so? About seven or eight years. And you've sat beside Jeffery Harris senior at the Feast Hall ever since then? Yes. And before that you've sat beside Chris Harris for many years didn't you? Yes. And did you ever during that time discuss with Chris Harris or Jeffery Harris senior the location of the territory of the House of Luus? 1 A 2 Q 3 4 5 A 6 Q 7 8 A 9 10 Q 11 12 13 14 A 15 MR. PLANT 16 17 THE COURT 18 MR. PLANT 19 Q 20 21 22 23 A 24 Q 25 26 A 27 Q 28 29 30 A 31 Q 32 33 34 35 A 36 Q 37 A 38 Q 39 40 41 42 A 43 Q 44 45 46 A 47 511 No. I don't discuss that with them at a Feasting. And did you ever attend a Feast at which either of those two gentlemen described the location of their territory of their House? No. Do you discuss matters of territory outside the Feast Hall? We have to discuss it firstly by our own wil'nat'ahl, then it goes to the Feasting House. Outside the Feasting House, have you ever had discussions with Jeffery Harris senior or Chris Harris while they were Luus, while they held that name, about the territory of Luus? No. : I'd ask that Exhibit 3 for identification be put before the witness? : Go ahead, Mr. Plant. This is the collection of Feast books, for want of a better term, isn't it? There's three different books contained within this booklet that's been marked as Exhibit 3 aren't there? Yes. You remember going through them and seeing the first and then the second and then the third book? Yes. And the third book, it may not be a book, but the third part of Exhibit 3 consisted of notes made by Neil Sterritt junior, do you remember that? Yes. And the first page of those notes is a page that has the words "Dorothy Weget Feast, November 9, 1985, page 1" at the top, and that's about six or seven pages from the end of the book, do you see that? Yes. Do you have that page in front of you? Is this the one here? Yes. Now, I believe your evidence is that in recent years it's been a practise to record contributions at Feasts and to record these contributions in a book which we call the Feast book; is that correct? Yes. Would you characterize these notes here of Mr. Sterritt as being a Feast book like that or are they something different? In a Feast House we have a person to write these recordings out, but they are other chiefs, even myself 1 2 3 4 5 6 7 8 9 Q 10 11 12 A 13 Q 14 15 A 16 17 18 19 20 21 22 Q 23 A 24 Q 25 A 26 27 28 29 30 31 Q 32 A 33 Q 34 35 36 37 A 38 Q 39 40 A 41 Q 42 A 43 44 45 Q 46 A 47 512 sometime when I'm in a Feasting House, I take notes like Mr. Sterritt has done here without being asked, but we -- we want to have it in, especially in my book, but then there maybe -- sometimes there are things that are missed out on books so anybody that has a copy would compare and this is what Mr. Sterritt has done at that Feasting. He goes, and he wasn't asked to do it, but he just for him doing it himself. He made these notes for his own purposes and later they may become part of the written record of that Feast? Would you rephrase that? Well, you said he wasn't asked to make these notes, so they're not the official record of the Feast are they? Not with Mr. Sterritt's, but we have a person that write these out like at the Feasting of the Headstone, the Feasting of the Burial Feast, I did say that Audrey Morrison was the one that wrote all what was happening and what contributions and at this Headstone Feasting Mrs. Sarah Hindle was the person that got to write these things out. She made the official record? Yes. And Mr. Sterritt's notes are something else? Yes. Well, the reason why they -- a lot of us had to have -- Mrs. Hindle is not familiar with putting these on recording because she doesn't come to the Feasting, but she had to be asked by Mrs. Weget because she's -- when Mrs. Weget was wilxsi witxw, so she has a duty there. She's not very knowledgeable about these things? No. Would you turn to the last page, please, the page that has the number 13 in the upper right-hand corner? It's the very last page of the book. Do you see that page? Do you have that page before you? Yes. And do you see the entry there "To Tribal Council $895"? Yes. What is the Tribal Council? It's a form that we just name it to the Tribal Council for people to come together with authorities and we form this council. And what sorts of things does it do? We -- as the Gitksan, we'd like to have a map stand up for our territory. 513 1 Q 2 A 3 4 5 Q 6 7 8 A 9 10 Q 11 12 13 14 A 15 Q 16 17 A 18 19 20 21 22 23 24 25 26 Q 27 28 A 29 MR. GRANT 30 MR. PLANT 31 THE COURT 32 MR. GRANT 33 THE COURT 34 MR. GRANT 35 THE COURT 36 MR. GRANT 37 38 39 40 41 42 43 THE COURT 44 45 46 47 MR. GRANT Is that all? Well there's -- the chiefs get together to discuss their territories and so this is why we formed this Tribal Council. When the chiefs get together to discuss the territories, is that a Feast or is it something else? Is it just a meeting of the Tribal Council? It's the meeting of each head chief that they -- we want our territories recorded on maps. Is there anything else that the chiefs do at those meetings? Before I ask that, I should ask this. You're a head chief. Have you attended meetings of the Tribal Council? Yes, I have. And what other matters are discussed then, if any, besides the making of maps? Well, with the meetings that the head chiefs have, we -- we had to get together and discuss this thing so we had to -- we know we have to form this so that all chiefs express what they have and the Feasting they did and their territory, their fishing grounds, the hunting and trapping grounds. We discussed all this so when we couldn't go any further then this -- we had this court case set. They -- the head chiefs decided that we had to put this through court. And was this decision made by the Tribal Council or was it made at a Feast? It was made -- we have -- Just one moment. Excuse me, or both? Mr. Grant? Yes. My friend is setting up two options -- Yes. -- of any number of options. Yes. He's saying was it A or B, not leaving the option that it could have been C or D. I would like him -- I object to the form of the question. He's asking whether it was a decision by a certain group or whether it was a decision at a Feast. He's putting two of a number of options. If he wants to know who made the decision then he can ask. Well, with respect Mr. Grant, it's cross-examination. He could have put it to the witness "It was this.", and hoped that she might agree or hope that she might disagree. Okay. He can put it to her each at a time, but by 1 2 3 THE COURT 4 5 6 7 8 9 10 11 12 13 MR. PLANT 14 Q 15 16 17 A 18 19 20 21 Q 22 A 23 24 25 26 27 28 Q 29 30 A 31 Q 32 A 33 Q 34 35 36 A 37 Q 38 A 39 Q 40 A 41 Q 42 43 A 44 Q 45 46 A 47 514 asking it in the two alternatives I object to the form of the question. : No, I'm sorry, Mr. Grant, in cross-examination I think that counsel's entitled to put that question that way and if neither of the alternatives are right, presumably the witness will answer that neither is right. I don't think that cross-examining counsel can be restricted in the way you've suggested. I think the question is proper the way it's put and if there's a problem in it, it can be straightened out in re-examination. Go ahead, Mr. Plant. My question was, was the decision to start this action made by the chiefs of the Tribal Council or at a Feast? With a meetings that these chief -- we get together and it's -- it's an all clan thing because they -- so we had to form this Tribal Council and we have conventions every year. Was the decision made at one of these conventions? This is when all the Kitwanga, Kitsegukla, Gitanmaax, Kispiox, Glen Vowell people would attend and all the head chiefs have to attend this convention and this is when all decisions are made by the head chiefs of what they want and so it has to go to the Tribal Council. It's name the Tribal Council. Is it the Tribal Council then that makes the decisions? No, the chief does. The chiefs make the decisions? Yes, they -- we make the decisions. And speaking again of the decision to commence this case, was that decision made by the chiefs at a convention of the Tribal Council? Yes. How long has this Tribal Council been around? We had our ninth convention in November. So about nine years? Yes, the ninth one. Was there a Tribal Council before the present Tribal Council? No. No. And the present Tribal Council, do you know what the name of it is? It's -- the name of the Tribal Council? It's Gitksan and Wet'suwet'en Tribal Council. 515 1 Q And looking again at page 13 of -- which is the last 2 page of Exhibit 3, there's a note there "To Tribal 3 Council $895". Do you know what that note means? 4 A Ellen Johnson, the late Ellen Johnson, and her 5 daughter, Mrs. Weget, were very much involved in the 6 Tribal Council and this court was set that -- we set 7 this court out, so when she died what was -- what 8 money was left in the pan at that time, the Lax Gibuu 9 people at that time, so we asked Anhloo'o what was 10 left in the money would go towards the court case and 11 this was the amount that was given to -- for the court 12 case. 13 Q Now, I want to go back in time for a minute. You've 14 told us that there was a Feast in 1942 when you took 15 the name Kwamoon? 16 A Yes. 17 Q And as I recall your evidence you said that Robert 18 Wilson, Tom Campbell and perhaps your mother, got 19 together and thought it was time for you to take the 2 0 chief's name. Do you remember that? 21 A Yes. 22 Q What was the name that Robert Wilson held at that 2 3 time? 24 A Wii'mogulsxw. 25 Q And your evidence was -- oh, that's number 78, excuse 26 me. Your evidence was that he was the head chief of 27 the Lax Gibuu at Kispiox at that time, do you recall 28 that? 29 A Yes. 30 Q And that was true wasn't it? 31 A Yes. 32 MR. PLANT: And who is the head chief of the Kispiox-Lax Gibuu 33 now? 34 THE COURT: At Kispiox? 35 MR. PLANT: 36 Q Yes, at Kispiox? 37 A Kliiyem lax haa. 38 Q And so is it fair to say that these positions of head 39 chiefs change over time? 40 A Yes. 41 Q And really -- well, rather than say it that way, to 42 some extent does it depend on the person who is 43 holding the name? Some people are stronger than 44 others? 45 A Yes. 46 Q And is that why Kliiyem lax haa is now the head chief 47 as opposed to whoever it is who holds the name that 516 1 Robert Wilson once had. 2 A With that like when I quoted that Robert Wilson, 3 Wii'mogulsxw was the head chief, and in our ways in 4 the Feast House that we probably -- Kliiyem lax haa is 5 the head chief of Lax Gibuu and Kispiox, but that 6 person may be a new chief and not very knowledgeable 7 of what is happening. So the next chief alongside, 8 and that's Wii'mogulsxw, and he's an older person at 9 that time, so the people of the Lax Gibuu look to him 10 at that time as for him to have the authority, more 11 authority of the Lax Gibuus. They things change 12 sometime. It just depends on who -- who the person 13 that has the chief name. 14 Q It depends on who that person is? 15 A Yes. 16 Q And sometimes it depends on how old they are? 17 A Yes. 18 Q And things like that? 19 A Yes. Like the older people had more knowledge and 20 they would be the one to speak to the other head 21 chiefs and if there's a Feasting of the Lax Gibuu, 22 that same person again would do the speaking for the 23 Lax Gibuu people. 24 Q And would that person also make the decisions about 25 the House? 26 A Yes, because Wii'mogulsxw and Kliiyem lax haa are all 27 wil'nat'ahl. 28 Q And when Robert Wilson held that name, was he the 29 person who made the decisions for -- on behalf of that 30 wil'nat'ahl? 31 A Which wil'nat'ahl? 32 Q Well, the wil'nat'ahl that he, as Wii'mogulsxw, and 33 Kliiyem lax haa are part of? Who made the decisions 34 on behalf of Robert Wilson and Kliiyem lax haa back in 35 1942? 36 A Robert Wilson did. 37 Q Because he was the older -- 38 A Yes, he was the older person. 39 MR. PLANT: I have some questions about three other names that 40 you gave us during the course of your evidence in 41 chief. The first is Sim git gigeenik or geenik, and 42 I'll spell it and then perhaps someone else can have a 43 go at trying to pronounce it. It's not on the 44 glossary and the spelling that I have from the 45 transcript at page 335 of Volume 5 -- perhaps the 46 interpreter could assist in the pronunciation? 47 THE INTERPRETER: Sim git gigeenik, S-i-m, g-i-t, 1 2 MR. PLANT 3 Q 4 A 5 Q 6 A 7 Q 8 9 10 11 A 12 Q 13 14 15 A 16 Q 17 A 18 19 Q 20 A 21 Q 22 A 23 Q 24 A 25 26 Q 27 28 A 29 Q 30 31 A 32 Q 33 A 34 Q 35 36 A 37 THE COURT 38 THE WITNE 39 40 41 42 4 3 MR. PLANT 44 Q 45 A 46 Q 47 A 517 g-i-g-e-e-n-i-k. Is that name -- -- do you recall that name? Yes. Who holds that name now? Robert Jackson senior. Robert Jackson senior. The second name is Jacob Robinson. You testified about Jacob Robinson as a man who died on his trap line one winter probably sometime in the 1940's. Do you remember that story? Yes. And your evidence also was that he was an elderly man who trapped about nine miles out of Gitanmaax village, do you remember that? Yes. Did he have a Gitksan name? He has one, a chief name, but at this moment I can't recall it. Do you remember what clan? Yes. He was of the Lax See'l Clan. Do you know what House? No. Do you know who holds his name now, if anyone? The answer I'll have to say to that is no. I don't know if anyone holds the name. Do you know if Robert -- Jacob Robinson was trapping on his territory when he died out on the trap line? Would you rephrase that again? Do you know -- you spoke about Jacob Robinson's trap line? Yes. About nine miles out of Gitanmaax village? Yes. Do you know if that trap line was part of his territory? No. No. : I'm sorry, you don't know or he wasn't? 3S: Well, why I say no that I don't know if it is the Lax See'l trap line or the Lax Gibuu because he's married to a lady of Lax Gibuu clan and with a man and wife they can trap on either the wife or the husband's trap line. Do you know who his wife was? Yes. Who was it? Lucy. 1 Q 2 A 3 Q 4 A 5 Q 6 7 A 8 Q 9 10 11 12 13 14 A 15 Q 16 A 17 Q 18 A 19 Q 20 21 A 22 Q 23 A 24 Q 25 A 26 Q 27 A 28 Q 29 30 A 31 Q 32 A 33 Q 34 35 A 36 Q 37 38 A 39 Q 40 41 A 42 Q 43 44 A 45 Q 46 A 47 Q 518 Lucy Robinson? Yes. Was she a chief in the Lax Gibuu -- She's one of the -- of Spookw's House. You don't know if the place where he was belongs to the Lax See'l or the Lax Gibuu? That's right. The third name I'd like to ask you about is a name that was once held by Andrew Wilson, Ax dii tsex, and I'm sure I'm not pronouncing it well or properly. The only spelling I have is A-x, new word, capital D-i-i, new word, t-s-e-e-x. Do you remember what name Andrew Wilson held? Ax dii tsex. Thank you. And was he the chief of a House? Yes. And what clan is that House? The Lax See'l Clan. And do you know what the name of the House was, was it Ax dii tsex? No, I don't. You don't know the name of the House? The House, no. And what village was the House from? Gitanmaax. Do you know if that House has territory? Yes. Actually, you've said Gitanmaax. Could it possibly have been Kitwanga? No. You're pretty sure it was Gitanmaax? Yes. Yes. Do you know where the territory is, the territory of that House I mean? No, I don't. Was that name held by Jeffery Morgan after Andrew Wilson? No, not -- I never heard it. Do you know who held the name -- well, I should ask this. Is Andrew Wilson still alive? No. And do you know who has held that name after Andrew Wilson's death? Bruce Johnson from Kispiox. He owns that name today? Yes. You know if he is the chief of a House? 1 A 2 Q 3 4 5 6 7 A 8 Q 9 10 11 12 A 13 Q 14 A 15 Q 16 A 17 18 MR. PLANT 19 20 21 THE COURT 22 MR. PLANT 23 Q 24 25 26 27 A 28 Q 29 30 A 31 Q 32 33 A 34 35 36 Q 37 38 A 39 Q 40 A 41 Q 42 A 43 Q 44 45 A 46 Q 47 A 519 Yes. He has his own House at Ax dii tsex's. Now, Mrs. McKenzie, I'd like to ask you some questions about the adaawk and I'd like to start by referring you to that part of the adaawk which tells the history of the House of Gyolugyet, and you've told us that last week do you remember? Yes. And you've said that -- at the beginning you said that you would try and make it brief and I -- my first question is have you ever heard someone tell the entire adaawk of the history of Gyolugyet? No. In recent time you mean? No, in your entire life? My entire life? Yes. Would you rephrase that question again? I'm getting -- : Sure. Have you -- first of all, have you ever heard all of the adaawk of the House of Gyolugyet, the history of the House? : In one sitting you mean or in one telling? Yes. I was going to originally ask about in one sitting, but first of all I want to find out if you heard it -- if you think you heard all of it, not just at one sitting, but at any number of sittings? Yes, I have. Now, have you ever heard the adaawk of the House of Gyolugyet told all in one sitting, all at one time? No. So it's something that gets -- has been told to you on a number of occasions? Yes. And at times there are things added to what is happening on the territory or the people of my wil'nat'ahl. When you say things are added to the adaawk, do you mean recent events? No. They could be events that happened a long time ago? Yes. Yes. How do they get added to the adaawk? It's reported in the Feasting. And would this be reported by someone other than the chief of the House of Gyolugyet? No. It would be a member of the House? Yes. 1 Q 2 3 A 4 Q 5 A 6 Q 7 8 9 A 10 11 12 13 14 Q 15 16 17 A 18 Q 19 20 21 A 22 23 24 25 26 Q 27 A 28 Q 29 30 A 31 32 33 34 35 36 37 Q 38 39 A 40 Q 41 42 43 A 44 Q 45 A 46 Q 47 A 520 And they would be adding some part to the adaawk that you hadn't heard before? Yes. And that's how you learned about the adaawk? Yes. When you told us the history last week, you said -- well, you said you would be brief, so what you told us was really just a summary wasn't it? I said -- the way I meant it when I said brief is what I recollect of what I'm -- I was told of the adaawk because the adaawk, what I'm trying to put forth has happened many years ago, like hundreds or even thousands of years, the adaawk of Gyolugyet. That's right. But I'm trying to find out now how you learned it and so you've told me that you learned -- you keep learning parts of it, is that true? Yes. And who would be the people who would add to your knowledge of the adaawk, and I'm speaking now of any recent times within the last 10 or 15 years? The late Delgam Uukw, Albert Tait, was the person that I -- because he's a lot older than I am, and he's -- he knows a lot of our adaawk because his father was the late Luus, so he's travelled with his father in the territory. And he -- he told you about the adaawk of Gyolugyet? What's happened on the territory, yes. I see. What about the events that occurred a long time ago? How did you learn about those events? Every Gitksan, every chief now young or old, we have the adaawks that are told, repeated to us through oral way, and the -- the chief have to repeat these things more often because it's oral. It's not written or anything so in the Feasting or sometimes a head chief would gather all his wil'nat'ahl and this is when these events are told to the wil'nat'ahl. And for you this process began when you were a small girl? Yes. And did it continue after you had grown into a woman, the process of learning I'm talking now, about learning the history of the old times? Yes. And did that go on after you became a woman? Yes. And does it go on today? Yes. 1 Q 2 3 A 4 5 6 7 8 9 10 11 Q 12 13 A 14 Q 15 16 A 17 18 19 20 21 22 23 24 25 26 27 28 29 Q 30 A 31 Q 32 33 A 34 Q 35 A 36 Q 37 A 38 39 Q 40 A 41 Q 42 A 43 Q 44 45 A 46 Q 47 521 Now, who is it that teaches you now about the old times in the house of Gyolugyet? Delgam Uukw died just in January and he's the one person that relates all of this to me. He even comes to my house and we talk about it and he -- he felt that pretty soon he won't be able to help me in getting the adaawk straight so he -- any time -- any chance he has he comes to me or I go to him when I'm not certain because our adaawks have to be right in every way. And so sometimes you would go to Albert Tait with questions? Yes. What kinds of questions? Can you give me an example of a question? Well, sometimes it's a question of territory, like I have to because I've never been there, but I'm very familiar of the creeks that run on the territory, so I have to get this from him and now that we're able to put this on paper so I -- I've a book that I've started and it's not only this book I'm doing, is whenever I have go to a Feasting I write down what is said and the -- what is contributed so that I recall these things when a Feasting is put on again or if the matter is disputed by different people I have -- I read it in this book that I made up from myself and my own use. No one ever -- even my children don't have a chance to read it because I'm still working on it. Do you have that book at home in Gitanmaax? Yes. Would you bring it with you tomorrow please to court so that I could have a look at it? No, I'm afraid not. Well, I'll make sure that you get it back. No. It's not permitted that I can have it? No. No. If my children can't read it, I don't think I'll let anybody read it. Why is that? Because it's just the way I feel. So is it a diary? Just about a diary. Have you written things in there about the territory of Gyolugyet? Yes, in small detail. And you've learned about that territory by talking to people like Albert Tait haven't you? 522 1 A 2 Q 3 4 A 5 Q 6 7 8 A 9 Q 10 11 A 12 13 14 15 Q 16 A 17 18 Q 19 A 20 Q 21 A 22 MR. PLANT 23 24 25 26 27 28 29 THE COURT 30 31 MR. PLANT 32 THE COURT 33 34 35 36 MR. PLANT 37 THE COURT 38 MR. PLANT 39 THE COURT 40 41 42 43 44 MR. PLANT 45 THE COURT 46 THE REGIS 47 Rephrase that again? Well you've learned about the territory of the House of Gyolugyet by talking to people like Albert Tait? Yes. And if you had a conversation with Albert Tait about the territory, would you make a note of that in your book? Yes. And that's how you would learn more about your territory, isn't it, is through those conversations? I ask these question what I was told, see, and I have to get it besides my grandmother and mother. I have to go to a different chief and ask them "Well what do you know about this?", what is said to me. Why do you have to go to another chief? Well, to confirm what my grandmother and my mother taught me. Albert Tait's not in the House of Gyolugyet? No. He's from another clan isn't he? Yes. : My Lord, I'd like to break now and I wonder if I might proceed by asking if my learned friend could perhaps speak with the witness over the break to discuss the production of this book? I do want to see it and it seems to me that on the basis of the evidence that has been led so far about it it's entirely relevant and entirely producible. : Well, the witness is under cross-examination and your -- : I appreciate that. : And your friends wouldn't normally be speaking to her about her evidence. I take it what you're saying -- what you're inviting your friends to do is to discuss this question with her? And this question only. Yes. I want to avoid having to make a demand. Yes. Well, your friends have heard what you say. They'll decide for themselves whether they think they should speak to you about this matter or not. All right. We'll adjourn. Do counsel want to come back at two o'clock -- I'm sorry at 1:30? That's satisfactory. 1:30. Thank you. RAR: Order in court, this court stands adjourned until 1:30. 523 1 2 3 4 5 6 7 8 9 (PROCEEDINGS ADJOURNED FOR LUNCH RECESS) 10 11 12 I hereby certify the foregoing to be 13 a true and accurate transcript of the 14 proceedings transcribed to the best 15 of my skill and ability. 16 17 18 Tanita S. French 19 Official Reporter 20 xh2 Mary McKenzie (for Plaintiffs) 21 (PROCEEDINGS RECONVENED AT 1:30 p.m.) 22 23 THE REGISTRAR: Order in court. Witness, I remind you you are 24 still under oath. 25 THE COURT: Mr. Plant. 2 6 MR. PLANT: 27 Q Mrs. McKenzie, I'll ask you again if you will be 28 producing the book that you described this morning for 29 my inspection tomorrow. Will you be making that 30 book -- I ask you to make that book available to me? 31 A Right now I'll say to you I will not produce it. It's 32 my personal property and it -- it doesn't only -- it's 33 got nothing to do with this court case because it's a 34 family -- like the funerals of my family, weddings of 35 my family, people that ask me to visit them in 36 hospitals, and they ask me to write little notes, 37 that's my -- all my personal property, so I say firmly 38 I will not produce it. 39 MR. PLANT: My Lord, I therefore apply for an order that the 40 document be produced for my inspection, and I 41 obviously restrict my application to those parts of 42 the document which contain relevant evidence, and not 43 including those parts of the document that contain 44 purely personal information and has nothing to do with 45 the issues in the case, including those issues raised 46 by the witness in her examination in chief and 47 cross-examination. 524 1 THE COURT 2 3 MR. PLANT 4 5 6 THE COURT 7 8 MR. GRANT 9 10 THE COURT 11 12 MR. GRANT 13 THE COURT 14 15 MR. GRANT 16 MR. PLANT 17 Q 18 19 20 21 A 22 Q 23 24 A 25 Q 26 A 27 28 Q 29 30 A 31 Q 32 33 34 A 35 36 Q 37 38 A 39 Q 40 A 41 Q 42 43 A 44 45 Q 46 47 THE COURT : How long do you expect your cross-examination to continue, Mr. Plant? : I -- at this point, I anticipate I'll be the balance of the afternoon and perhaps carry over sometime tomorrow morning. : All right. Are you ready to deal with this problem now, Mr. Grant, or do you want to deal with it later? : My Lord, maybe we can put this discussion off till later on in the afternoon. : Yes, all right. We'll deal with it before the end of the day. : Yes. After the -- after the break -- a break. : Yes. Well, whenever it's convenient, you let us know. : Yes. Very good, My Lord. Mrs. McKenzie, you testified about the adaawk of the House of Gyolugyet, and the history of the days at Gitangasx, the Village of Wild Rice, remember that? Yes. And your evidence was that that village was located near Bear Lake, you remember that? Yes. Where exactly was the village located? All the information that was told to me was it was near Bear Lake up in the north. That's the extent of the description that you were given? Yes. Have you heard others -- other chiefs and other Gitksan people speak at Feasts about Gitangasx, the village of Wild Rice? They discuss it when an adaawk is repeated in a Feast House, and that's the only time I hear of it. That's because the history of Gitangasx is part of the adaawk of the chiefs, isn't it? Yes. Of some of the chiefs? Some of the chiefs, yes. And have you heard some of those adaawks in the Feast Hall that talk of Gitangasx. Well, when it comes to the feasting of the Lax Gibuu, they've mentioned the village Gitangasx. My Lord, the spelling I have for that is G-I-T-A-N, new word, G-A-S-X. : Thank you. 525 1 MR. PLANT: 2 Q 3 4 5 A 6 Q 7 8 9 A 10 Q 11 12 A 13 Q 14 A 15 Q 16 17 18 19 A 20 Q 21 22 23 A 24 Q 25 26 A 27 28 Q 29 30 31 A 32 Q 33 34 A 35 Q 36 37 38 A 39 Q 40 41 A 42 Q 43 44 A 45 Q 46 A 47 Q Have others in the Lax Gibuu clan described the location of the village of Gitangasx at the -- when they are telling the adaawk in the Feast Hall? Would you rephrase that again, please? Have you heard other chiefs discuss or describe the location of the village of Gitangasx in the Feast Hall? Yes. And have you heard other chiefs talk about that village as being located in other places? No. Is it always near Bear Lake? Yes. That's the extent of your recollection, isn't it, whenever you've heard it discussed in the Feast Hall, it's always been a village that's located somewhere near Bear Lake? Yes. When you told us about that village, you said that, as I recall your evidence, the village was attacked by the Tsitsawit? Yes. And my spelling of that is T-S-I-T-S-A-W-I-T. Those are not Gitksan people, are they? Well, they are the Indians of the north, but no, they are not Gitksan. And this attack, or these attacks, if there were more than one, were they because the Tsitsawit people wanted land? Yes. And so the battle that you described in your telling of the adaawk, was a battle over land, wasn't it? Yes. And later, you told us about how the warrior Suu wii gos knocked down a giant human figure out of a tree; do you remember telling us that? Yes. What does the adaawk say about this figure, how does the adaawk describe him? He is described as our crest. Does the adaawk describe the -- the giant human being? Does he -- does the adaawk say how tall he is? No. It has only been said that he was a huge being. A huge being? Yes. Not necessarily a human being? 1 A 2 Q 3 4 A 5 Q 6 7 8 A 9 Q 10 A 11 Q 12 13 A 14 15 16 Q 17 18 A 19 20 Q 21 22 A 23 Q 24 25 26 27 A 28 Q 29 A 30 Q 31 32 A 33 Q 34 A 35 Q 36 A 37 Q 38 A 39 Q 40 41 A 42 Q 43 44 45 A 46 Q 47 A 526 Not necessarily a human being. You've told us about the battle with the shadows, the battle at the shores of the lake? Yes. And who were these people? Or first of all, let me ask you this: Were these shadows in the trees were they people or were they some other kind of being? They were people in the trees. Were they people who had special supernatural powers? No. What -- do you know, does the adaawk say who those people were? They were a group of people that have come from the north to do battle with the people that came across them. But does the adaawk say, does the adaawk call these people Tsitsawit also? No. At Gitangasx there were Tsitsawits there, the story -- the adaawk goes. But the people in the trees were just people from the north? Yes. Now you told us that Suu wii gos, and I should say my spelling of that which may not be correct is S-U-U-W-I-G-O-S. You told us that the warrior Suu wii gos left Gitangasx and he came down to Old Kuldo? Yes. Why did he leave Gitangasx, does the adaawk say? Well he -- he was looking for territory. Does the adaawk say whether or not Suu wii gos had territory up at Gitangasx? Yes. And did he? Well, that's what the adaawk said that he did. And so he left Gitangasx to look for a new territory? Yes. And he found Old Kuldo? Yes. Was he the first person to find Old Kuldo according to the adaawk? According to the adaawk, yes. Now, as I understand it there was a village called Old Kuldo and then there was a village called New Kuldo; is that correct? Yes. Are they two separate places? Yes. 1 Q 2 3 4 5 A 6 Q 7 A 8 9 10 11 12 13 Q 14 15 A 16 Q 17 A 18 Q 19 A 20 Q 21 A 22 Q 23 A 24 Q 25 26 A 27 28 29 30 Q 31 32 A 33 Q 34 35 36 A 37 Q 38 39 40 41 A 42 43 44 Q 45 A 46 47 527 And so did the families, the family of Gyolugyet or the House of Gyolugyet, did it leave Old Kuldo and go to the place called New Kuldo? Does the adaawk speak about that? Yes. What does the adaawk say about that, about that move? That adaawk -- I'll say this to you, that I can't say in this court of what I don't know. I have to be truthful of what I say. So I know there are plaintiffs of my wil'nat'ahl, aren't very sure of this, so I hate to say how the Old Kuldo and the New Kuldo formed. Well, does the adaawk of Gyolugyet speak about Gyolugyet moving to New Kuldo? Yes. What does it say? Well, it says that they moved there. Does it say why they moved? Well, that I'm not clear. Who taught you this part of the adaawk? My Grandmother. Was this when you were a little girl? Yes. Up until when she died in 1942. So she told you this from time to time, or I think your words were that it's an everyday thing? It's an everyday thing at a meal table, but there are times that she would -- she would be more -- more concerned about me knowing about these storys, about these adaawk. So she would make a special point sometimes of telling you that? Yes. Now, after living in New Kuldo, if that's the way I can describe it, your family came to Kispiox; is that correct? Yes. And why did people leave New Kuldo to come to Kispiox? When I say people, I'm sorry, I'm not being very precise. Why did your family, the House of Gyolugyet move from Kuldo to Kispiox? Because other clans were moving into Kispiox like the Lax See'l, Giskaast, from Kuldo, and some of the Lax Gibuu people that were leaving Kuldo. Do you know why they were leaving Kuldo? With my -- with my wil'nat'ahl -- see if the Lax Gibuus were just left at Old Kuldo, there is no point in that, because like I said before, that we can't 1 2 3 4 Q 5 A 6 Q 7 A 8 9 Q 10 A 11 Q 12 13 14 A 15 16 Q 17 18 A 19 20 21 22 23 Q 24 A 25 Q 26 A 27 Q 28 29 A 30 31 32 33 34 35 Q 36 A 37 Q 38 A 39 40 41 42 THE COURT 43 A 44 45 THE COURT 46 47 528 intermarry into our own clan. And this is the one House in the wil'na t'ahl, so this is the reason why they have -- had decided to move as well to Kispiox. Was there a problem finding food up in Kuldo? There probably might have been. Does the adaawk say anything about that? Yes. There was the depth of the snow sometimes, would have something to do with that. Make it hard to find food? Yes. And so what -- does the adaawk say that the chiefs moved down to Kispiox because they thought it would be easier to find food? They moved down because they have to have other clans with them. And they were following the clans, is that your evidence? Yes, yes. Because with Lax Gibuu we can't have things arranged by themselves, they have to have other clans to give them support sometimes, or -- or work with them. They have to -- all three clans have to work together. So the Lax Gibuu couldn't be alone in Kuldo? No, they couldn't. Do you know why the other clans left Kuldo? No. And does the adaawk of Gyolugyet say anything about that? Well I would say this, they -- there is -- there is a reason why people had to move from one village to another. Now this is all in the adaawk, but as the years, the hundreds of years that this thing has happened, a lot of things are cut short in adaawks sometimes. In some Houses, not all. They are forgotten? They are not forgotten. What do you mean by "cut short"? When -- when you are all by your -- your clan is by itself or even two, there is a lot of Feasting that is not complete, and there is only one clan that's not in there with them to work with them, the head chiefs. : Is that the Eagle Clan? The Fireweed Clan and the Lax See'l Clan and the Wolf Clan. : I'm not sure I understand that, Mr. Plant, perhaps I can clear it up. You said, Mrs. McKenzie, that one of the clans "is not there working with them." What did 1 2 A 3 4 THE COURT 5 A 6 7 8 9 10 MR. PLANT 11 Q 12 13 A 14 Q 15 16 A 17 Q 18 A 19 20 Q 21 A 22 Q 23 A 24 Q 25 26 27 A 28 Q 29 A 30 Q 31 32 33 A 34 Q 35 36 37 A 38 Q 39 40 41 A 42 Q 43 A 44 Q 45 A 46 Q 47 529 you mean by that? Well, when Lax Gibuu is by themselves they got no clan like the Lax See'l and the Fireweed. : I see, I understand. And that any problems that the Lax Gibuu would have amongst themself if they live by themselves, who would they look to or what chiefs would they ask to solve their problems? They have to work with the Lax See'l and the Giskaast. Is it true, Mrs. McKenzie, that the reason people left Kuldo was because they were starving? No. So a shortage of food really didn't have anything to do with that? No. Then why did people move to Kispiox from Kuldo? Like I said, there was only the Lax Gibuu was left in the village. What about the other clans, why did they move? The other clans had moved. Why did they move? That I can't answer that, because I don't know. Have you ever been at a Feast when any of the history of the move from Kuldo to Kispiox by the other clans has been discussed or told in the adaawk? Not recently. How about when you were a young person? No. Have you ever been at a Feast when that part of the adaawk of the other House of the other clans has been told? No. So you've never heard the story of why the other clans decided to leave Kuldo, New Kuldo and come to Kispiox? Would you like me to ask that again? Yes. So you've never heard the story in the Feast Hall about why the other clans left Kuldo and came to Kispiox? No. You've never heard it? No. Have you heard it outside the Feast Hall? No. Does the adaawk of Gyolugyet describe the location of Gyolugyet's territory when the -- when Gyolugyet lived 530 1 2 A 3 Q 4 5 A 6 7 Q 8 9 A 10 Q 11 A 12 Q 13 14 A 15 Q 16 A 17 Q 18 19 A 20 Q 21 22 A 23 24 25 26 Q 27 28 29 A 30 Q 31 A 32 33 Q 34 35 A 36 Q 37 A 38 39 THE COURT 40 A 41 THE COURT 42 MR. PLANT 43 Q 44 45 A 46 47 at Gitangasx? When they were in Gitangasx, I would say they have. What does the adaawk say about the location of the territory at Gitangasx? The story of adaawk I hear, is when the people move -- lived in Kuldo. So you don't know what the adaawk says about the territory of Gyolugyet at Gitangasx; is that correct? Yes. Because Gitangasx is no longer a village. But you were told about Gitangasx by your Grandmother? Yes. There had been a village at Gitangasx. Did she tell you about the territory of the chiefs who went there? No, no. That's not part of the adaawk? No. What about at Kuldo, is the territory of Gyolugyet part of the adaawk of the time at Kuldo? Yes. And what does the adaawk say about that, about that territory at that time? Well, the adaawk goes what Suu wii gos, the warrior, did, how he formed the Kuldo Village, and all the three clans and who had moved down there, like from Gitangasx. Does the adaawk talk about the territory that Suu wii gos and the House of Gyolugyet had when they were at Kuldo? Yes. What does it say about that? Well, it does say that -- what houses they had built at Kuldo and territory that goes with adaawk. What does the adaawk say about the territory of Gyolugyet? Well, it just says where the territory is. What does it say about where the territory is? Well it tells the directions of where it is, somewhere in the north-west of Kuldo. : Sorry, north-west of? Of Kuldo. : Of Kuldo. Does it say anything more than that about the location of the territory? I just can't describe to you right now, because it -- it involves a lot of names and a lot of the different places in the territory. But in this Feasting, people 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Q 16 17 18 A 19 20 Q 21 22 A 23 Q 24 25 26 A 27 Q 28 A 29 Q 30 A 31 32 Q 33 A 34 Q 35 A 36 Q 37 A 38 39 Q 40 41 42 A 43 Q 44 A 45 Q 46 47 A 531 have the feeling that they could mention these places, these names, and these territories and how -- what other chiefs and their Houses, what territory they have. It's easily explained in the Feasting House, and it's open and it's -- I have a lot to say. But the feeling of the people here other than Gitksan don't have the very inner feeling of what they -- Gitksan people have in their minds. There is a lot of strength in the power in it that I can't very well express in this court, because it's -- we are people at Gitksan, we have different feelings of a lot of things that the non-Indians have, and it's a little difficult for me to put this expression out and this feeling, this power that we have. When your Grandmother told you the adaawk when she was still alive, did she describe the territory that Gyolugyet had at Kuldo? Yes. She mentioned them by the creeks and the mountains. And are those the creeks and the mountains that you told us about a few days ago in your evidence? Yes. I want to ask you for a minute about another story, and it's the story of the painted goat. Do you know that story? The painted goat? The painted goat of Stikyooden, it's an old story? Yes. It's about T'am Lax amit, do you know that story? I've -- I've read a book of T'am Lax amit, that's all I can say about it. You haven't heard the story told at a Feast? Yes. You have heard that story told? I've heard it. Who told that story? Well it's -- it's told by the people that own that territory. Well, think about the last time you heard that story told at the Feast, at a Feasting. Can you remember that? No, I haven't. Have you ever heard the story told at a Feast? Yes. And who was the -- name some of the people who have told that story, or just one person? Tell you the truth, I can't recall the person. 532 1 Q Is that story part of the adaawk? 2 THE COURT: Which adaawk? 3 MR. PLANT: 4 Q Well, the adaawk of the House of the chief who tells 5 it? 6 A Yes. 7 Q Is it part of the adaawk of the House of Gyolugyet? 8 A No. 9 Q Is it part of the adaawk of all the Gitksan people or 10 just of some of the Houses and clans? 11 A The adaawks always belong to head chief and a House, 12 and they're responsible of them telling it themselves. 13 Q So the adaawk, the story of the painted goat, belongs 14 to a House or chief? 15 A Yes. 16 Q You used the word during your examination-in-chief 17 that I would like to ask you about, and the word looks 18 something like antimahlasxw, and I'm going to spell 19 it, A-N-T-I-M-A-H-L-A-S-X-W. 20 THE INTERPRETER: A-N-T-I — 21 MR. PLANT: M-A-H-L-A-S-X-W. 22 THE INTERPRETER: Antimahlasxw. 2 3 MR. PLANT: 24 Q Now that you've heard the word pronounced correctly, 25 does that word remind you of something that you 26 described in your evidence? 27 A Yes. 28 Q What does that word mean? 29 A Antimahlasxw is the word of -- used in -- is a story. 30 Q Is it something different from the adaawk? 31 A Yes. 32 Q Is it part of the adaawk? 33 A Just depends on what story. The adaawk is one word 34 that is used when adaawk is to be told to the members 35 of a House, that's when the adaawk is used, or in a 36 Feasting. 37 Q Well, is -- and I'm sorry I can't pronounce it, 38 antilmahlasxw, is that sometimes part of the adaawk? 39 A Antilmahlasxw is -- sometimes it is a part of the 40 adaawk when it's told by one person. 41 Q Is there — 42 A A story. 43 Q Yes? 44 A When it gives an illustration and it's taking from the 45 adaawk or the illustration of the story that's been 46 told. 47 Q So you could tell a story from -- or a part of the 1 2 A 3 Q 4 A 5 Q 6 7 A 8 Q 9 10 A 11 Q 12 13 A 14 15 16 17 Q 18 19 A 20 Q 21 A 22 Q 23 24 A 25 Q 26 27 28 29 A 30 Q 31 A 32 Q 33 A 34 Q 35 36 A 37 Q 38 39 40 41 42 A 43 44 45 46 47 Q 533 adaawk? Yes. In such a way that it would become antilmahlasxw? Yes. Is it used to teach people, Gitksan people right from wrong, is it used like that? Yes. And so is it a story that has a moral or some point to it that is supposed to help people understand? Yes. Is it part of the history of the House though, sitting alone, would it be part of the history of a House? Yes. And with the story that's told it involves -- sometimes it involves some, not just for the one House, sort of involves in your father's house as well when you tell antilmahlasxw. Does the chief of a house have rights to certain antilmahlasxw, or are they shared by everybody? Antilmahlasxw is formed in every house. Are they different in every house? Yes. And sometimes this antilmahlasxw will include part of the adaawk where it will take part of the adaawk? Yes. So just changing the subject slightly now, the adaawk includes more than just the history of the House, doesn't it? Does that mean it includes the boundaries of the territory? Yes. And that includes songs, names, crests? Yes. Nax Nok? Yes. Does the adaawk refer to everything that happens at a Feast? Yes. And you -- I think it may have been in your evidence, but when this case, this court case that we are involved in right now, when it's talked about at a Feast, it will become part of the adaawk too, won't it? Yes. It will be part because all the head chiefs of each House are present and involved in this court case, and it has to be the part of every House that -- who are the plaintiffs here, the witnesses, that has to go on the adaawk of the House. If there is a meeting of the chiefs that takes place 1 2 3 4 5 A 6 Q 7 8 9 10 A 11 Q 12 13 14 A 15 Q 16 17 18 A 19 Q 20 21 22 A 23 Q 24 25 26 A 27 Q 28 29 30 31 32 A 33 Q 34 35 36 37 38 39 A 40 Q 41 42 A 43 Q 44 45 A 46 Q 47 A 534 outside of the Feast Hall, and say they gather together to decide something important, will that be also -- will that become part of the adaawks of the various chiefs? Yes. Now you testified on Thursday about a potlatch which -- or rather a Feast, sorry, which John Smith held while you were away in residential school in about 1930; do you remember that? Yes. And as I recall, you said that that Feast became part of the adaawk of all of the Houses that took part, all of the Houses and clans? Yes. And -- and as I recall, you testified that telling this story was an important part of the training of the younger people? Yes. And the story that you told, it's about a Feast and about how the white man's laws tried to stop the Feast, isn't it? Yes. And so in part, this -- the story of this Feast, this adaawk of this Feast is about holding onto traditions that the white man was trying to take away, isn't it? Yes. And does the adaawk of Gyolugyet say that the white man has been in the territory for a long time? Does the adaawk refer to the fact that the white man has been in the territory for a long time and I'm speaking now of the territory of the Gitksan people? Yeah. Would you rephrase that question again, please? Yes. When your Grandmother told you the adaawk when you were a girl and then later a woman before she died, did she describe the history of the white man, that is to say, the first contact with white men and what white men had done in the territory? Was that part of what she taught you? I still can't understand the question. Well, there have been white people in this territory, in the Gitksan land since before you were born? Yeah. And the Gitksan people are concerned about taking -- the white man taking their territory, aren't they? Yes. And is that something that gets discussed at Feasts? In recent time it's been discussed, but we -- long 1 2 3 4 Q 5 6 7 8 9 A 10 11 12 Q 13 14 15 16 A 17 Q 18 19 A 20 21 22 23 24 25 26 Q 27 A 28 29 Q 30 31 A 32 Q 33 34 35 A 36 Q 37 38 A 39 Q 40 41 A 42 Q 43 44 A 45 Q 46 47 A 535 before in my grandmother and her mother and grandparents, it's never been discussed because that's way before any white man came. That makes sense to me. How about after the white man came? Say -- think back to some of the Feasts that you went to when you were a young girl. Did the chiefs speak there to what the white man was doing to their land? At the Feasting I went to when I was quite small, they never mentioned any -- any white people on their grounds yet. Did John Smith tell you that -- when he talked about that Feast that he held in 1930, that was held partly as a gesture because of the white man's law, wasn't it? Yes. And did he tell you whether or not that was something they talked about at the Feast? Like I said before, there had been meetings amongst all the head chiefs for some time and discussing how they going to -- and the white people would recognize the Feasting, because they wanted to ban it -- well, they have banned it, and these meetings went on for some time, for years, and -- and at this particular meeting they decided that they should have a Feasting. To protect their territory and their rights? Yes. And the banning of the Feast, because the feasting goes along with the territory. Is it fair to say that one of the reasons the adaawk of the territory is told is to protect the territory? Yes. And when the Gitksan chiefs tell the adaawk of their territory, they are really saying that this is Gitksan land not white man's land, aren't they? Yes. And the other chiefs who are sitting there at the Feasts, they agree? Yes. And this has been the case, hasn't it, for as long as you've been going to Feasts? Yes. And you've heard the adaawk of Gyolugyet's territory told at Feasts? Yes. And you in fact yourself have told the adaawk at Gyolugyet's territory at the Feasts, haven't you? Yes. 1 Q 2 3 A 4 5 Q 6 A 7 Q 8 9 10 A 11 Q 12 13 14 A 15 Q 16 17 A 18 19 20 21 Q 22 23 A 24 Q 25 26 A 27 Q 28 29 A 30 Q 31 32 33 34 A 35 Q 36 37 38 39 A 40 Q 41 42 43 44 A 45 Q 46 47 536 Under the law of your House, who is the proper person to tell the adaawk of Gyolugyet's territory? In Gyolugyet's house, the head chief of the House of Gyolugyet. And that's yourself? Yes. And would you consider that you are quite knowledgeable concerning the boundaries of the territory of Gyolugyet? Yes. And you were able to identify them on a map that is in the courtroom today, you were able to point them out on a map last week, weren't you? Yes. Have the boundaries of that territory changed during your lifetime? What was related to me by my Grandmother, and I took that. But since people been using registration there has been overlap in a couple of sections on the territory. Well, did your Grandmother tell you about any boundary, any changes to the boundaries of the territory? No. And have the boundaries of the territory of Gyolugyet changed because of trap line registrations? No, it hasn't. But there are some people that have trap lines that overlap? Yes. Now, when you -- we referred last week briefly to the interrogatories, and I would like to put them before you again. Would you please turn to question 58, it's on page 15. Do you see it? Um-hmm. And the question reads: "Does your House claim ownership of, or jurisdiction over, any particular territory?" And the answer you gave is: "Yes." And that's true, isn't it? Yes. And then in question 59, the question 59 (c) reads: "If so, what are the boundaries of your House's territory?" And part of that is on page 16, you see that? Yes. And the answer you gave is: "The approximate boundaries of my territory are included in the map which is set out in Schedule B, except for my fishing 537 1 2 A 3 Q 4 5 6 7 8 9 A 10 Q 11 12 13 14 15 16 17 A 18 Q 19 20 21 MR. GRANT 22 23 24 25 THE COURT 26 MR. PLANT 27 28 29 30 THE COURT 31 MR. PLANT 32 Q 33 34 35 36 A 37 Q 38 39 40 A 41 Q 42 43 A 44 Q 45 46 47 A sites." Do you see that? Yes. And then in question (d), "Since when has your House owned or claimed jurisdiction over this territory?" And you gave the following answer: "The territory has belonged to our House as long as Gitksan society has existed on the Skeena River. This was long before the arrival of the white man." Do you see that? Yes. And then subquestion (e): "Have there been any changes in the boundaries of your House's territory since the date of first contact between the Gitksan and representatives of any European nations?" And the answer that you gave is: "Our territory has always been the same." And those answers were true when you gave them, weren't they? Yes. Now, why is it that you say in 59(c) that the boundaries set out in Schedule B, apart from fishing sites, are only approximate? : My Lord, I note that the reference in 59(c) is to Schedule B, and I think to be fair to the witness, that in answering that question my friend should put the exhibit Schedule B to her. : Any problem with that, Mr. Plant? : Well I am going to put it to her momentarily. My first concern is with the issue of timing, and I want to establish firstly -- and I don't need to do it by that question -- : All right. -- something about dates. Mrs. McKenzie, you swore the answers to those interrogatories on the 23rd day of January, 1987. Do you see that, on the second page? Yes. And you don't have any trouble with that date, you accept that date as being the date that the interrogatories were sworn? No. What was the question again? Well, you accept that date as being the date that you signed this affidavit, don't you? Yes. Was your knowledge of the boundaries of the territory of the House of Gyolugyet somewhat incomplete in January of 1987? Would you ask that question again? 53E 1 Q 2 A 3 Q 4 5 A 6 Q 7 8 A 9 Q 10 A 11 Q 12 A 13 14 Q 15 A 16 Q 17 A 18 THE COURT 19 MR. GRANT 20 THE COURT 21 MR. PLANT 22 Q 23 A 24 Q 25 A 26 27 Q 28 A 29 Q 30 31 32 A 33 Q 34 35 36 37 38 39 THE INTER 40 A 41 MR. PLANT 42 Q 43 44 A 45 46 Q 47 Sure. When you swore those interrogatories -- Yes? -- did you know where the boundaries of the territory of the House of Gyolugyet were? Yes. Have you learned anymore about them since January 1987? Yes. How have you learned that? What was that question again? Well, what have you learned about the boundaries? Well, I learned that there was overlap, couple of places. Do you remember where those places were? Yes. Can you tell me? One was on the -- on Djogaslee. May I have the spelling of that, please? Number five on the list. Thank you. Do any others come to your mind right now? The other is -- Blackwater is the last name. David Blackwater? I'm not too sure which one of the Blackwaters, but on the map I know where it is. All right, we'll come back to that then. Any others? No, that's all. Now in your evidence last week, Mrs. McKenzie, you described some creeks in Gyolugyet's territory. Do you remember that? Yes. And my note of your evidence, and I'm going to be referring to Exhibit 6 for identification here, is that the creeks that you referred to were firstly the creek that is given the number 91 on Exhibit 6, and I wonder if the interpreter could assist in the pronunciation of that? PRETER: Xsagan Gaksda. Xsagan Gaksda. Kuldo Creek, isn't it? Can I only know that's Xsagan And that's also known as you confirm that? No, I can't confirm that. Gaksda. All right. And the next creek that you told us about was number 93, Xsa'an Lo'op, Shanalope Creek? 539 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. MR. THE MR. A Yes. Q Remember telling us about that? A Yes. Q And then the next creek, number 92, I can't pronounce that. Perhaps the interpreter could assist? INTERPRETER: Xsan Gehl Tsuuts? A Xsan Gehl Tsuuts. INTERPRETER: Xsan Gehl Tsuuts. PLANT: Q You remember that as being part of your territory? A Yes. Q And the next creek is Xsi laa damus, it's number 98, and the English name is Shaladamus or Shaladamus. Do you recall that, Mrs. McKenzie, or would you like assistance from the interpreter? I have to hear it. Sure. Shaladamus. Shaladamus, yes. A PLANT INTERPRETER: A Oh, yes PLANT: Q A Q A Q A Q A Q A Q A Q A And the next creek I have a note of is number 99, Xsa'n Yam? Yes. And is that on your territory also? Yes. And that's number 99. The next creek I have a note of is Win Skahl Guuhl? Win Skahl Guuhl. That's number 100, and your evidence was that that's on your territory? Yes. Then you told us about a place called Da'm Ansa Anguas, and I may not be pronouncing it right, it's number 104, and that's the place that was very roughly described as a camp site. Do you remember telling us about that? Yes. And you told us about a mountain Andap Matx? Andap Matx, yes. And that's number 101 on Exhibit 6. Now I have, therefore, a list of six creeks or rivers, a place known as a camp site, and a mountain being your territory. Do you know -- are these all of the place names that your Grandmother told you when she described the territory of the house of Gyolugyet to you? Yes. 1 Q 2 3 A 4 5 Q 6 7 A 8 Q 9 A 10 Q 11 A 12 Q 13 14 A 15 Q 16 17 A 18 Q 19 A 20 21 22 23 Q 24 A 25 26 Q 27 28 29 A 30 Q 31 A 32 Q 33 A 34 35 36 Q 37 38 A 39 40 41 Q 42 A 43 Q 44 45 A 46 47 540 Are there any other place names that come to your mind now? There is a creek there that I mentioned I had it registered, Xsihl Guugan. Number 94. Do you know the English name of that creek? No. Have you ever heard it described as Taylor River? No. Any other places? That's all the creeks that I have mentioned. What -- and those names are all Indian adaawk, aren't they? Yes. What does the adaawk say about the boundaries of the territory? Of these creeks? Well, of the boundaries of the territory of Gyolugyet? In the territory of Gyolugyet, the older chiefs travels through that way, and these creeks are sort of a territorial, a holder of one chief, like a Madiik had Xsa'an Lo'op -- Ninety-three. -- and same way with the others like Hlo'oxs and Kwamoon. And when the adaawk describes their territories, the territories of these chiefs, Kwamoon, Madiik, Gyolugyet and Hlo'oxs -- Yes. -- does it describe them by referring to the creek? Yes. Does it describe them in any other way? Sometimes the creeks are a boundary of a territory or a lake probably. I must say not properly, but a lake is sometimes taken as a boundary on a territory. Are there any creeks in your territory that are described in the adaawk as boundaries? When you call out the names of these creeks in our adaawk, we exactly know who -- what chief's territory is in that whole territory. And then for Madiik, for example, it's Xsa'an Lo'op? Um-hmm, yes. And what else, is there any other description of the territory of Madiik other than the creek? In -- when adaawk like of all these chiefs that we mentioned, like Madiik, Hlo'oxs, Kwamoon and Gyolugyet, there is a big vast of territory. And 541 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 MR. THE Hlo'oxs, as mentioned in that -- well out of the five, they -- on the territory, they have creeks or a post that they know the territory. But in the wil'nat'ahl, in some wil'nat'ahl, they have their own posts for their boundary. But in Gyolugyet's territory, it's a vast territory, so the five of us hold that territory, and it's allowed that wil'nat'ahl will trap and hunt on this territory. Because each House -- each chief of each house have their ways of their wil'nat'ahl, they place them in sections, some of them, and this is how the territory is used. Q Does the adaawk say anything about the Nass River as being part of your territory? A That's -- well, the Nass River is on the territory but we -- the Nass River is not mentioned as a holder of the Gyolugyet. Q So the Nass -- A And the river might have flowed through the territory, and that's called the Nass River. Q But it doesn't belong to Gyolugyet? A No. Q And does the territory of Gyolugyet, it's -- it extends on the north side of the Nass River, doesn't it? A Yes. Q And on the south? A Yes. Q Do you know how big the territory is, the territory of all of the five chiefs in Gyolugyet you described earlier? A I'll say no to that, because it's never been mentioned to me the acreage or the mileage or the whatever. But I do know that it's a big territory. Q So if I were to suggest to you that it's approximately half a million acres, you wouldn't really know one way or another? No, I wouldn't. Well now I would like to look at the map that's attached to your interrogatories. And before I do that, My Lord, we started earlier, I'm in your hands, and the court reporter seems to be all right. : I was going to go till quarter to three, but we can stop now if this is a more convenient time. PLANT: Perhaps it is. We'll be unfolding paper. A Q THE COURT REGISTRAR: Order in court. (PROCEEDINGS ADJOURNED AT 2:35 p.m.) 542 I hereby certify the foregoing to be a true and accurate transcript of the proceedings herein transcribed to the best of my skill and ability. 9 10 11 12 13 14 15 16 17 18 THE 19 THE 2 0 MR. 21 22 23 THE 2 4 MR. 25 26 27 THE 2 8 MR. 2 9 THE 3 0 MR. 31 32 THE 33 MR. 34 35 THE 36 37 MR. 38 THE 3 9 MR. 40 41 42 43 44 45 46 47 Toni Kerekes, O.R., R.P.R. United Reporting Service Ltd. (PROCEEDINGS CONTINUED PURSUANT TO AFTERNOON RECESS) REGISTRAR: Order in cou COURT: Mr. Plant? I don't know if it just advise you Mr with the witness - All right. -- and was not awa reconvened. I'd b now. Thank you. My Lord — Yes, Mr. Grant? Yes. I apologize witness the issue Yes? -- before and aft minutes late. Do you want to d do it later? Well, I haven't All right. Go a rt. RUSH: COURT: RUSH: COURT GRANT COURT GRANT COURT: GRANT: COURT: 's convenient to -- My Lord, I can . Grant is just having another word re of the fact that we had e happy to just advise him of that GRANT COURT PLANT Q Mrs. McKenzie, did extend to the west territory to your A Not to my knowledg Q Do you know which territory which li boundary of the Gi that map in the vi , I was just discussing with the that was raised -- er lunch, that's why I was a few eal with that now or do you want to completed my discussion, head, Mr. Plant, please? the territory of Gyolugyet ever ern boundary of the Gitksan knowledge? e. group of Indian people claim the es to the west of the western tksan territory as it appears on cinity of your territory? In other 543 1 2 3 4 5 6 A 7 Q 8 A 9 Q 10 A 11 Q 12 A 13 Q 14 15 A 16 Q 17 A 18 Q 19 A 20 Q 21 22 A 23 MR. PLANT 24 25 MR. GRANT 26 27 THE COURT 28 MR. GRANT 29 THE COURT 30 31 THE WITNE 32 MR. PLANT 33 THE COURT 34 35 MR. PLANT 36 Q 37 38 39 A 40 Q 41 A 42 43 44 Q 45 A 46 Q 47 words, if you go west from Gyolugyet's territory, look on the map if it would help, but as I see the map there are some chiefs of other clans and I think they may be Lax See'l chiefs who have some territory on the west of your territory? Yes. Delgam Uukw is one? Yes. And Djogaslee? Yes. Walter Wilson? Yes. And to the west of their territory you know which Indian people claim that land? Well, to my knowledge I'll say no to that. Is it Nishga territory? I've heard of them discussing it. You know that they make a claim to that territory? No. Do you know that the Nishga people make a claim that includes part of the territory of Gyolugyet? No. : I suggest to you that they do make that claim. Are you in a position to confirm or deny it? : Sorry, My Lord, confirm or deny what, that they make the claim? Yes. Or that the claim is true? That they make the claim is the way the question was put. 3S: What was that question again? : Perhaps Madame Reporter -- : No, no. Mr. Plant, no, no, that's the worst thing you ask a reporter to do, just put the question again. Are you aware of the fact that the Nishga people make the claim to the territory of the House of Gyolugyet? Are you able to say that? Do you know of that? No, I can't. Do you know anything about the Nishga people? I've heard about it in meetings that they have down in Terrace or at -- on the Nass River, that's all I've heard about it. You've heard Nishga people talk about their claim? Oh, yes. In 1983 did you attend a Feast in Kitwanga at which the Gitksan and Nishga chiefs were present? 1 A 2 Q 3 A 4 Q 5 6 7 A 8 Q 9 A 10 Q 11 A 12 Q 13 A 14 Q 15 16 A 17 Q 18 19 20 21 22 23 A 24 Q 25 A 26 27 Q 28 A 29 Q 30 A 31 32 Q 33 34 35 A 36 Q 37 A 38 39 40 Q 41 A 42 Q 43 A 44 Q 45 A 46 Q 47 544 No. You did not attend any such Feast? No. I did not attend that in '83. Did you attend a Feast in Terrace or a meeting in Terrace where there were Gitksan chiefs and Nishga chiefs present? Yes. I was invited to that. And was that a Feast or a meeting? Just a meeting. And did you tell your adaawk at that meeting? No. You did not? No. I suggest to you that you did. Do you recall whether you did or not? Is your memory certain on that point? May I ask what the meeting was at and what date? I'm afraid I don't know, I just know that there was a meeting within the last couple of years in Terrace and it was a meeting to -- -- between the Nishga and the Gitksan chiefs. Perhaps we'll start this way. Can you recall a meeting with Gitksan and Nishga chiefs in Terrace? Yes. Do you recall when that meeting was? No, I don't, but I remember being at the Terrace Banquet Room. Was it within the last couple of years? Yes. What was the purpose of the meeting to your knowledge? It was the purpose of Nishga claiming an overlapping of the territory of the -- some of the Gitksan chiefs. And so what was the meeting held for, I mean, you've said that there's a fact that you know of that there was -- there's an overlap or a claim? Yes. So why was the meeting held? The Nishga -- what I picked up from the meeting was that the Nishga tried to claim the territory of -- two territories of a chief of Gitksan. Including your territory? No. Was the meeting held to discuss this? About the claim and the overlap? Yes. Yes, that's the reason the meeting was for. And did you go to this meeting to tell the adaawk of your House's territory? 1 A 2 3 4 Q 5 6 A 7 8 9 Q 10 11 A 12 Q 13 A 14 Q 15 A 16 Q 17 18 A 19 Q 20 A 21 22 Q 23 24 A 25 Q 26 A 27 Q 28 A 29 30 Q 31 A 32 Q 33 34 A 35 Q 36 37 A 38 39 40 Q 41 42 A 43 Q 44 45 46 47 A 545 No, I was invited just to take part in the discussions, I mean, the -- of what was to be said and has said about the Nishga and Gitksan. And what was said at this meeting, can you summarize the discussions that took place at this meeting? The only thing I can say about it that there was -- what all was said on both parties there wasn't anything settled. Did you describe the territory of your House when you had the discussions at this meeting? No. I was not on the part where -- I wasn't asked. You weren't asked to say anything? No. Did you say anything? No. Did some of the chiefs at this meeting, some of the Gitksan chiefs, tell their adaawk? Yes. Who were those chiefs? Robert Stevens, Wii minosik. That's all I can remember. Did the late Albert Tait tell the adaawk of Delgam Uukw? Well he spoke -- he spoke first for the Gitksan. Did he describe the boundaries of his territory? Yes. He described boundaries of -- Boundaries of his territory? Yes, and of the other territories that he's familiar with. Does that include your territory? No. Did Walter Wilson tell about the territory of Dj ogaslee? No, I don't recall. Do you recall any of the other chiefs that spoke for the Gitksan apart from Albert Tait and Robert Stevens? Well, apart from those two that I really listened to, and there was quite a dispute about the whole territory. The Nishga people didn't agree with what the Gitksan chiefs were saying? Yes. Now, this was at a meeting in Terrace. Have there been any other meetings that you have attended that you recall at this time where the issue of the Nishga claim was discussed? No, that was the only time I went. 1 Q 2 A 3 Q 4 5 A 6 7 Q 8 9 10 11 12 A 13 14 15 16 17 18 19 Q 20 A 21 Q 22 A 23 24 Q 25 26 27 A 28 29 30 31 32 Q 33 34 A 35 Q 36 37 A 38 Q 39 40 A 41 Q 42 43 A 44 4 5 MR. PLA1 46 47 546 And as of today there still is an overlap isn't there? Yes. Is there a traditional way that the Gitksan people show that a dispute over land has been settled? Would you rephrase that so I can really get the question? Well, putting your -- put in your mind the idea of a dispute between two chiefs over territory and say that dispute is solved. Is there something that happens when a dispute is settled, something to do with sprinkling eagle down on the various people? Yes, there has to be a Feasting for that and whatever clan they're in it's the -- say if it's Lax Gibuu people are disputing on this and the head chief have to try -- will settle it for them, and if the family agrees to what the settlement of the high chief will put out to them, then a Feasting is put on for the -- these two people. And then is eagle down used in the Feast? Yes. Are there other ways of showing the settlement? Showing of eagle down is the most important thing of showing that, a settlement. And according to the Gitksan law, that would be the way that you would show the settlement with the Nishga isn't it, if there was one? If it's ever settled, and the people have to get together and the Nishga and the Gitksan and they -- they may -- both parties may have to put on a Feasting about the settlement. That's when the eagle down will be used. But so far it hasn't -- the dispute hasn't been settled has it? No, it hasn't, as far as I know. Now, I've asked you some questions earlier about Chris Harris, the late Chris Harris, who held the name Luus? Yes. And do you know if Chris Harris ever went out on your territory? Not that I can recall. Would you have considered him knowledgeable about the House of Gyolugyet and the territory of that House? Yes, he would because he's in Luus's House and he was Luus at that time. : Well I'd like to put before you a map which was marked as Exhibit 20 on the examination for discovery of Neil Sterritt in this case. Do you have the 547 1 2 3 4 MR. GRANT 5 6 7 8 9 10 11 THE COURT 12 13 MR. PLANT 14 15 16 17 THE COURT 18 MR. PLANT 19 20 21 22 THE COURT 23 24 25 26 27 28 29 30 MR. PLANT 31 THE COURT 32 33 34 MR. PLANT 35 THE COURT 36 MR. PLANT 37 THE COURT 38 39 40 41 42 MR. PLANT 43 44 45 THE COURT 46 MR. PLANT 47 Q original? I'd ask that the original with the exhibit stamp be produced if my friends have it with them here today? I spoke with Mr. Plant's associate Mr. MacKenzie and he compared the original and a copy and was satisfied that the copy they had was an accurate copy. And the original is a Mylar, My Lord, and I understood from Mr. MacKenzie that it was not necessary to have the original over, that he'd inspected those two and it wasn't necessary, that was my understanding. All right. But tell me what are you going to do with this, Mr. Plant? Well, I want to ask the witness if she's seen it before and I have certain questions concerning the territory that's -- the boundaries of the territory that are depicted on the map. Depicted by someone else? That's my understanding, yes, and not just the late Chris Harris, my understanding is that the map in question is a map prepared by Mr. Sterritt taken from a map prepared by the late Chris Harris. Well, I've seldom seen much profit come out of having one witness being asked to comment on the evidence or statements of others. I'm not anxious to stop you, it's just that I'm not -- I'm equally anxious to make sure that this doesn't become an every day occurrence and we end up spending countless hours with witnesses describing what they think about what someone else says. Yes. The -- if I can just have a moment? Yes. See Mr. Plant if you have conflicting claims for the territory, can you not put that in as part of your case when the time comes? That's my present -- Yes. -- inclination. Because it really doesn't advance the situation for the witness to verify the conflicting claims, unless it's necessary for your purposes to establish the conflict and then ask her something that only she can answer or that she can most conveniently answer. Well, I have the concern about, you know, something coming back to haunt me at the end of the day if I haven't put it. We all get that concern. Yes, And I think I have a solution for it in this 1 2 3 4 5 A 6 Q 7 A 8 Q 9 10 A 11 Q 12 A 13 Q 14 A 15 Q 16 17 18 A 19 Q 20 A 21 22 23 Q 24 A 25 26 27 Q 28 A 29 30 31 Q 32 A 33 34 Q 35 A 36 37 Q 38 39 A 40 Q 41 42 A 43 Q 44 A 45 Q 46 47 548 case, but if I could just have one more moment. I need not pursue that, My Lord. Mrs. McKenzie, your mother was Esther Holland who was formerly Esther Green? Yes. Was she ever known as Esther Madiik? No. Is there a woman who was known as Esther Madiik that you know of? Yes. And was that David Gunanoot's wife? Yes. She's not the same person as your mother is she? No. No. Now, I do have a few questions about trap lines, Mrs. McKenzie. You've testified that Wallace Danes registered a creek Win skahl Guuhl in your territory? Yes. That's number 100. Do you know where that is? Well, as I said, I've never been over the territory but my husband has, and the way I know where it is now when these maps were put together. Is that because you were shown it on the maps? Not when -- I meant to say that I knew before the maps about the location of where Win skahl Guuhl is, where it is . And where is it to your knowledge? It's up -- I'm no person to give details of locations on -- on -- but if it's shown to me on the map I'll point it out. Would you be able -- sorry, I don't mean to interrupt. But according to my husband he explained just where it is . And is it up north in your part of the territory? Yes, it's probably I'll say right in the centre of the territory. And do you know where -- I'm sorry, do you know when Wallace Danes registered that trap line? No, I did not know. Do you know if it was before or after you became Gyolugyet? Yes, long before -- long after. Long after? Yes. When Wallace Danes registered the trap line, did he ask your permission then if he could use that property? 1 A 2 Q 3 4 A 5 Q 6 7 A 8 Q 9 10 11 A 12 Q 13 14 A 15 16 17 18 Q 19 20 A 21 Q 22 A 23 Q 24 25 A 26 27 Q 28 29 A 30 Q 31 32 A 33 Q 34 A 35 36 37 Q 38 39 A 40 Q 41 42 A 43 Q 44 A 45 46 47 549 No, he didn't. Does he have the right to register that trap line without your permission? No, he doesn't. Do you know if the boundaries of his trap line have changed in the last few years? No. Do you recall whether or not Wallace Danes gave some of your trap line -- I'm sorry, some of his trap line to you and Violet Brown? Rephrase that again? I'm suggesting to you that Wallace Danes gave some of his trapping territory to you and to Violet Brown? I don't see why he should because that territory belongs to Violet and I in Gyolugyet's territory and the only reason why he's there and he registered it, that's where his father Joe Danes trapped. You don't have any knowledge though of whether he's done that or not? No. Have you ever seen a map of Wallace Danes' trap line? No. How do you know that it lies within your territory, that is, the territory of Gyolugyet? When the -- when the name Win skahl Guuhl is mentioned, that's in my Gyolugyet's territory. And you would hear the name mentioned at the Feast House? Yes. Has Wallace Danes mentioned that name at the Feast House? No, he's never once that I know of. Where have you heard the name mentioned? Well, it's mentioned the same time as like my grandmother and Albert Tait would mention these places like the creeks, and Win skahl Guuhl is one of them. How do you know that Wallace Danes has his trap line on that creek? Would you rephrase that again? How do you know that Wallace Danes has a trap line on Win skahl Guuhl? A registered trap line you mean? Yes. I was informed by Violet Brown in 19 -- in the 1970's because she went into the Wildlife office here in Smithers and they took a map for her because her boys -- her sons had intentions of going to the -- 1 2 3 4 5 6 Q 7 A 8 9 Q 10 11 A 12 Q 13 A 14 MR. PLANT 15 MR. GRANT 16 THE COURT 17 18 19 MR. PLANT 20 21 THE COURT 22 MR. PLANT 23 Q 24 25 26 A 27 28 29 30 31 32 33 34 35 36 Q 37 38 39 A 40 Q 41 A 42 Q 43 A 44 Q 45 A 46 Q 47 A 550 going to our territory for beaver trapping and they father Abel Brown was to go with them. So they went to the Wildlife office to see about this map, that's when they told her that Wallace Danes had registered Win skahl Guuhl and -- Did she go -- I'm sorry? We didn't -- both her and I didn't know anything about it until that time. Did she go to the game warden's office or Wildlife office to -- beg your pardon? Yes. Go ahead. Did she go there to find out where the trap line was? Where the? Where the registered trap line was? Whose? I thought we were talking about Wallace Danes' registered trap line, it's the only one that's been mentioned I think. : Actually my friend has identified an ambiguity in my question. : All right. Tell me again, please, Mrs. McKenzie, why Violet Brown went to the game warden's office or the Wildlife office as you call it? Yes, she -- she went there because her husband and her son -- her sons were to go out to this trap line, our territory, like Woos's territory and Gyolugyet's territory, so they went there to ask for a map of the territory, whose territory they have to go through. This is why they went to the office to ask for a map, and that's when they told her of the registration because she mentioned the name Win skahl Guuhl and that's when they showed her that Wallace Danes had registered that place. Thank you. You testified that Richard Benson was given permission by your mother to trap on Gyolugyet's territory? Yes. He is in the House of Luus? Yes. How old a man would he be? In his late 70's today. Is he still alive? Yes, he's still alive. Is he a chief? Yes. 1 Q 2 3 A 4 5 6 Q 7 A 8 9 10 11 Q 12 13 A 14 Q 15 16 A 17 Q 18 A 19 20 21 Q 22 23 A 24 Q 25 26 27 A 28 Q 29 30 A 31 Q 32 33 A 34 35 Q 36 37 A 38 39 Q 40 A 41 Q 42 A 43 44 Q 45 46 47 A 551 Does he have a place at the table, down the side of your table, at the Feast Hall where Luus sits? He -- although he's from Luus's House, but our wil'nat'ahl is Amagyet and Wii elaast, so he sits with these two chiefs on Kispiox-Lax Gibuu table. Why does he sit there? Because we were all wil'nat'ahl, that's what we call the wil'nat'ahl, like there's Wii elaast, our wil'nat'ahl, Amagyet, and Luus and Gyolugyet, the four. So it's not necessary that he sit with his House of Luus? That's right. Have you ever discussed the permission that your mother gave with Richard Benson? No, because he doesn't do any more trapping. Has it been a long time since he did any trapping? Well, yeah, but to my mother he was the one that give that permission and -- but he's never come to me for to ask me if he could go and trap there. Has he ever come to you to tell you about the trapping on that trap line? No. Your mother has a trap line, or rather your mother who's now deceased had a trap line registered in her name didn't she? Yes. And that trap line is still registered in her name to your knowledge? Yes. To my knowledge. Do you know where that trap line is, Mrs. McKenzie, your mother's trap line? I have an idea where it is. It's on the creek of Xsa'an Lo'op is what the registered paper says. Have you ever seen a map of that trap line territory, just the registered trap line? Only once when -- just after her death in the 60's that came from the office in here in Smithers. The map came? Yes, just the map of Xsa'an Lo'op. Did the map show the boundaries of the trap line? Just where the boundary of Xsa'an Lo'op, in that territory, in that section. Now, I'm instructed that that trap line actually goes out west to the western edge of the Gitksan territory. Are you aware of that? No. 1 Q 2 3 A 4 Q 5 6 A 7 Q 8 A 9 MR. PLANT 10 11 12 13 THE COURT 14 MR. PLANT 15 Q 16 17 18 19 A 20 Q 21 22 23 24 A 25 Q 26 A 27 Q 28 29 30 31 32 A 33 Q 34 35 A 36 Q 37 38 A 39 Q 40 41 A 42 Q 43 44 A 45 MR. PLANT 46 47 THE COURT 552 I suggest that your mother's trap line crosses into Delgam Uukw's territory, are you aware of that? No. And there's a trap line registered in your name isn't there? Yes. But you've never trapped there yourself? No, never been there. : I'm producing a document that is a photocopy of two sides of an application form. It's an application for registration of a trap line. I have a copy for Your Lordship. : Thank you. Now, Mrs. McKenzie, at the bottom of the first part of that form there is a name in handwriting which appears to be your name, do you see that? It's about half-way down the page. Yes. And is that your signature? Actually, I think you may be looking at the wrong place, I was thinking here where it says "Signature of applicant" and then there is a name "Mrs. Mary McKenzie" in handwriting? Yes. Does that look like your signature? Yes, that's my signature there. Do you remember signing this form, as I say, it's a photocopy and I put the front and the back on one piece of paper here for convenience. Do you remember signing the original application form? Yes. And the date there is the 30th day of September 1950 at Hazelton? Yes. And that was the date that you applied to register your trap line? Yes. And that trap line was formerly part of Joseph Danes' trap line wasn't it? Would you rephrase that question? Did Joseph Danes have that trap line registered before you to your knowledge? No, not to my knowledge. : My Lord, I'd ask that this be marked as the next exhibit? : Any objection? All right. Yes. That will be the 553 1 next exhibit. 2 MR. PLANT: Would it be convenient — I'll mark Mrs. McKenzie's 3 copy. 4 THE COURT: All right. What number, please? 5 THE REGISTRAR: Ten. 6 THE COURT: Thank you. Exhibit 10. 7 8 (EXHIBIT 10: PHOTOCOPY OF APPLICATION FORM DATED SEPT. 9 30, 1950, SIGNED BY M. MCKENZIE) 10 11 THE WITNESS: I'll just hold onto this and see where my 12 signatures are here. These two are not the same as 13 mine there, those two signatures. 14 MR. PLANT: 15 Q You've referred to the fact that on the right-hand 16 side down near the bottom your name appears in handwriting a couple of times and that's not your signature there? No, that's not my signature, but the one on top here is mine. And that's right beside the words "Signature of applicant"? Yes. 24 THE COURT: What does this length of trap line say, Mr. Plant? 25 It looks like approximately 351 miles. I'm sure 26 that's not right, is it? 27 MR. PLANT: I think is says thirty-five and then a fraction 28 miles around. 29 THE COURT: I see. All right. That sounds more reasonable. 3 0 MR. PLANT: 31 Q Now, this form was signed by you after you became Gyolugyet wasn't it? Yes. And looking again at the top half of the form, beside the typed words "P.O. Address" the words "Hazelton, B.C." appear, do you see those words? Yes. Uh-huh. Do you see them? Yes. And that was where you lived in 1950 wasn't it? Yes. And then below that it says "trapper and housewife" as your occupation? Yes, it says on here. That's not quite correct though is it? No, it isn't. It should be just housewife. And then on the other side in the other column there's 17 18 19 A 20 21 Q 22 23 A 32 33 A 34 Q 35 36 37 A 38 Q 39 A 40 Q 41 A 42 Q 43 44 A 45 Q 46 A 47 Q 554 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 MR. 17 18 19 2 0 THE 21 22 MR. 23 THE 24 2 5 MR. 26 27 28 2 9 THE 30 31 MR. 32 THE 33 34 35 36 37 THE 38 THE 3 9 MR. 40 41 42 43 44 45 46 47 in printing the words "Number of years applicant has trapped line" appears. Do you see that? A Yes. Q And the figure there is "7", do you see that figure? A Yes. Q And that's not correct is it? A "Number of years applicant has trapped". Has trapped the lines supposed to be is it? Q Yes. Well, the words "Number of years applicant has trapped line" speak for themselves don't they? A Yes. Q And the figure "7" there is incorrect, isn't it? A Yes, it is. Q Because you hadn't ever trapped that line? A No. PLANT: My Lord, I have no further questions subject to any questions that might arise out of a review of the book which I have asked to be produced and I'm in Your Lordship's hands as to how we should proceed. COURT: All right. Well I think we should first find out if your learned friend's have any re-examination. PLANT: I wonder if Mr. Macauley has any questions? COURT: Of course, I beg your pardon. I'm sorry, Mr. Macauley, you've been so quiet I forgot about you. MACAULEY: I have a few questions, but I suggest that this matter of the book that has arisen in Mr. Plant's cross-examination be disposed of before I carry on in my cross-examination. COURT: Well, shall we adjourn for a few minutes while you continue your discussion, Mr. Grant? Yes. GRANT: REGISTRAR: Order in court. (PROCEEDINGS ADJOURNED FOR A SHORT RECESS) (PROCEEDINGS RECONVENED PURSUANT TO ADJOURNMENT) REGISTRAR: Order in court. COURT: Mr. Grant? GRANT: Yes, My Lord, you've heard the evidence of the witness with respect to this document, this book. The witness has expressed fairly strongly her feeling of the privacy of the document and I'd ask you to take that into account in your consideration of the request by Mr. Plant. I'd also ask you to take into account the fact that this witness is, on her own evidence and -- is a chief. She has refused to produce the document to Mr. Plant in open court in the presence of 555 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 4 0 MR 41 42 43 44 45 46 47 THE COURT PLANT other chiefs. Within the Gitksan tradition itself it would be extremely embarrassing for her to reverse her position on that to Mr. Plant on his demand. I am concerned, without a review of the document, as to whether the relevance of the document is -- outweighs the concerns of the personal nature of the document and the personal privacy of this witness. I would ask you firstly, my first position is not to direct that this document be produced in light of all that you have heard, in the matter as to the respect that the witness is really asking for with respect to these -- to her private perusals. If you are inclined to order production of this document or any part of it, I would ask that any direction you make would be that those parts of the documents that are relevant would be disclosed after review by myself as counsel, and I would review them for relevance. And I want to say that this is not unprecedented. It's the normal course in the conduct of this case in all of the documents by all parties when relevance is being determined by counsel, and that any of those parts, such as the conversation with Mr. Tait that was the matter referred to, would be able to be reviewed by myself and then disclosed at that time to other opposite counsel. I am concerned about the forcefulness with which the witness felt about this document and the fact that it's a document that she has not even disclosed to her own children, that it not be allowed in such a -- to go in, although my friend has not yet indicated and he may not even wish to have the document go in evidence, he'd just wish to inspect it. I appreciate that, and I would ask you to keep those thoughts -- to keep those thoughts in mind because it's a matter I think of the question of the policy of protecting this witness' personal property in a sense from open inspection. : Thank you, Mr. Macauley or Mr. Plant do you want to add anything? : My Lord, the witness during her examination disclosed for the first time the existence of a document that contains or may contain highly relevant information. I am sensitive to the -- to her concern, but the evidence in the document, and who can say at this point other than on the basis of her own description of its contents, but it appears to me, and I suggest from that description, that the document may 556 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 THE MR. be highly relevant and in that case the public interest in its disclosure outweighs the personal interest with respect of the witness. I am prepared to accept my friend's -- and more than prepared to accept my friend's term that he review the document and produce only that part or those parts which are relevant, but the ambit of relevance in this case in any event is so broad. Your Lordship has heard evidence over the past week and a half or so of Feasts, of funerals, of marriages, of burials. Those are the things which the witness says that she's recorded in her book. Your Lordship has heard evidence of the description of territories, and her ability to describe the territories and the location of her House's territory are central issues in this case, and without having seen the document I'm unable to say whether it will add to the determination of those issues, but on the basis of the evidence and the examination so far it certainly seems inevitable that it is going to contain some useful information. So I repeat -- in effect, I stand on the application and the request that the document be produced subject to my friend's term, if you will, that he be the arbiter in the first instance, as it were, of relevance. COURT: Thank you. Mr. Macauley? MACAULEY: I have no submission to make other than that. COURT: Thank you. Anything you want to say in reply, Mr. Grant? Well my friend -- my only concern is that my friend says that the document may be highly relevant and somehow he has some skill that I don't yet have because that of course is what -- that is where I'm -- I can't put to you, My Lord, whether the relevance outweighs the policy. If -- Well, there's no policy involved that I can see. I'm sorry, if the relevance of the document outweighs the question of that person's private interest, but that is the extent to which the -- whether the document is one per cent or five per cent or ten per cent, or a hundred per cent is relevant, that of course I don't yet know and I don't think any of us do. That was the only point I wish to raise. All right. Well, thank you gentlemen. I don't think I have any leeway here at all, and I think it's necessary to put this troublesome matter in its proper perspective. THE MR. THE MR. GRANT COURT GRANT THE COURT 557 1 Firstly, the witness is not just a witness called 2 for the plaintiffs, she is a plaintiff herself. 3 Secondly, the rules of court which the plaintiffs have 4 themselves invoked are very clear that all documents 5 which may be relevant must be disclosed before trial. 6 There has in fact been a massive disclosure of 7 documents going both ways. It seems to me to be 8 unarguable that this document, as described by the 9 witness, is a document that ought to have been 10 disclosed as possibly being relevant. It may have 11 been that it could have been a claim where privilege 12 could have been advanced for it, but if it contains 13 notations about the territory claimed in this action, 14 then it seems to me to be incongruous to say the least 15 for the plaintiff to say "I have made some notes about 16 the claim I am making, but I don't want to disclose 17 them." 18 It seems to me that, subject to counsel looking at 19 the document and it being different from what has been 20 described, that the document ought to have been 21 disclosed before trial. That being so, it seems to me 22 that I have no choice but to order that the document 23 be produced, certainly to Mr. Grant in the first 24 instance so that he can examine it, and if there is 25 something more to it than the witness described or 26 something different from what the witness described, 27 then it may well be that it's not relevant at all. 28 But if, as she says, it includes notations that she 29 made about the territory and what other plaintiffs 30 have told her about the territory, then I would have 31 serious difficulty constructing a scenario that did 32 not include some relevance for the document. And my 33 judgment therefore is, and this is an easy question to 34 answer, is that according to the rules of the court 35 the document is producible in the first instance to 36 counsel and we'll see what happens after that. 37 I think that this is a convenient place to mention 38 that when parties bring an action of this kind 39 invoking the jurisdiction of the court, it goes 40 without saying that they must comply with the rules of 41 court. These rules aren't made up for this case, but 42 are a settled practise that apply to all cases. And 43 as long ago as the 1870's it was decided that the test 44 for production is whether a document may be relevant. 45 If there is any possibility that it may be relevant, 46 unless some claim for privilege can be advanced, then 47 clearly the document must be produced. And as Mrs. 558 McKenzie asked me to respect her position as a chief, she having made this statement in court, she has to respect my position as a Justice. I have to apply the law and I don't think that the position she takes is one that leaves me any alternative but to make the order that I've made. All right. We will adjourn then until tomorrow morning. What time do counsel suggest we should begin? : 10:00 a.m. I would propose, My Lord. : Yes. Anything else tonight, gentlemen? Oh, the matter that I had the Registrar distribute -- Mr. Sterritt's applying again to be added. Do counsel have a suggestion when that might be dealt with? My Lord, I notice that the document is fashioned as an appeal. : Yes, I know. And it is under the style of cause of the court. : Yes. : I might have something to say about that. I haven't perused the document in its fullest. Perhaps that could be dealt with tomorrow? : Well, I'm tempted just to say that it should be brought in the Court of Appeal, but I'm here and Mr. Sterritt is presumably here and the Court of Appeal's a long way away, so it seems to me that the convenient thing might be to hear him. Would say 9:30 on Wednesday be a convenient time? Yes, it would be. : We have to have time to get notice to him so he'll know when it is. All right. The only other thing I want to mention, do counsel want to have a dialogued discussion or argument about the hearsay rule and when do they think they'll be ready for that? : Do that maybe on Thursday morning might be an appropriate time. Is that convenient Mr. Plant and Mr. Macauley? I'm sorry, did my friend say Thursday? Yes. Yes. That's convenient. Yes. All right. Let's adjourn. Ten o'clock tomorrow morning. Thank you. 43 THE REGISTRAR: This court stands adjourned until May 26, 1987 44 at 10:00 o'clock. 45 46 (PROCEEDINGS ADJOURNED TO MAY 26, 1987, at 10:00 A.M.) 47 1 2 3 4 5 6 7 8 9 10 MR. GRANT 11 THE COURT 12 13 14 15 MR. RUSH: 16 17 THE COURT 18 MR. RUSH: 19 THE COURT 20 MR. PLANT 21 22 23 THE COURT 24 25 26 27 28 29 MR. RUSH: 30 THE COURT 31 32 33 34 35 MR. GRANT 36 37 THE COURT 38 MR. PLANT 39 THE COURT 40 MR. PLANT 41 THE COURT 42 559 I hereby certify the foregoing to be a true and accurate transcript of the proceedings transcribed to the best of my skill and ability. Tanita S. French Official Reporter
Trial proceedings
British Columbia
KEB529.5.L3 B757
English
Uukw, Delgam, 1937-
Indigenous peoples--Canada
Oral history
Wet'suwet'en First Nation
Vancouver : University of British Columbia Library
Vancouver : United Reporting Service Ltd.
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[Proceedings of the Supreme Court of British Columbia 1987-05-25]
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