* Day 10: Monday, July 22 * Day 13: Thursday, July 25 * Day 11: Tuesday, July 23 * Day 14: Friday, July 26 * Day 12: Wednesday, July 24
Dale then pointed out on the aerial photograph the spillway (dam) at the western end of the lake. He admitted that he never looked into the history of the dam, nor had he ever looked for the old, original Gustafsen homestead. He always assumed that the wire fence was the eastern edge of Lot 114. "I never had any reason to think otherwise," he stated.
Dale denied Don Campbell's suggestion that it was a show of aggressive force bringing along cowboys to give the trespass notice. Dale thought it was a show of "passive" force and claimed it was only to ensure their safety that they brought out all the cowboys again the next day.
Defendant Shelagh Franklin questioned Dale about the meeting at Gustafsen Lake on June 17, 1995. He didn't remember a camp member asking for a peaceful solution, but remembered someone from the Cariboo Council suggesting it. He remembered his sister saying that the law had been broken and remembered Jonesy's response that it wasn't the Indian people that were breaking it. He remembered the 1763 Royal Proclamation being mentioned often and that the land had never been ceded, but didn't know how that applied in this situation. He admitted that the people at the camp didn't have a problem with him or his father - they had a problem with how the land was taken from them in the first place.
He didn't remember hearing about the Duty of Disallowance and what it meant. He didn't remember anyone offering to have their lawyer explain these laws to them. He never looked into these laws nor does he think his father ever did. He remembered them saying that the Indian Act was fraudulent and that they didn't recognize the elected band members because they were paid by the white government. Franklin reminded James that Lord Dufferin had said "before we touch a single acre we make treaties with the Chiefs". Dale's response was that the meeting was between the Cariboo Tribal Council and the people at the camp and that the James' were only witnesses.
Lee Mazurenko, the Crown's tenth witness, then took the stand. He was an employee of Lyle James' Circle S ranch during the spring of 1995 when he noticed a new fence built near an old wooden fence on the property. On June 13, 1995 he was asked to assist in serving a "subpoena" of eviction. He went with three other ranch hands to the intersection of the Forestry and Lakeshore Roads - Lyle and Don James were already there and the others arrived later. He didn't see any police and he didn't bring any special equipment or firearms. They proceeded to the camp, but Percy wasn't there so they "visited for a few hours". He looked at a native's new truck and spoke to the people from Alberta because he's from Calgary. He recalled Scott Bernard playing "with his new toy. It was a bullwhip and he was trying to crack it but he (heh heh) ended up hurting himself a few times." Mazurenko saw the stove being loaded on a truck, but he wasn't involved. He testified that he didn't hear any harsh words or see anything unpleasant during the time before Percy arrived. When Percy arrived, Lyle asked the cowboys to join him as he read the notice. Mazurenko stood by Lyle and then saw Don place the notice on "a medicine pole with feathers on it." He heard Percy's lady say this is Indian land and then the cowboys left.
Lyle James took them to 100 Mile House and bought them supper, then they went home. He never returned to the Sundance grounds after that. He was asked by Lyle James the next day to come in and clean up the area, but was intercepted by the RCMP. Following the standoff he went with another ranch hand to clean up the site.
Lee Mazurenko testified that it took him four days to pick up garbage and fill in the well and post holes, (but he didn't mention that the police had just ripped the area apart for their investigation.) Later, some other cowboys came with machinery to fill in the other holes. Lyle told them to leave the Arbor alone, so they did. On the fourth day, they burned all the garbage (they even had a fire permit!)
Under cross-examination by Harry Rankin, Mazurenko admitted that they also burned the cabin with the garbage. He testified that he went up to that area in the spring of 1995 three times and moved 160 to 180 head of cattle with a helper. He said that the reason he couldn't move the cattle through the gate was because he was told to stay out of there - not because the gate impeded him.
As Harry Rankin said about the events of June 13, 1995, "now we've gone through this a number of times". Mazurenko's recollection of that day was fairly consistent with previous testimony. The only interesting new testimony was that he never ran into any police officers, before, during or after that afternoon. Sheldon Tate continued to cross-examine Mazurenko about his role in cleaning up the site. On June 14th Lyle James told him, "We'll go today and we'll clean up out there". Mazurenko thought that cleaning up meant cleaning up the site and that it didn't include burning the cabin. Mazurenko revealed more of his character when he answered Don Campbell's questions about his use of the phrase "medicine pole" to describe what others had called a spear. Lee said that he recognized it as spiritually important because he grew up with natives. "As a kid I was always dressed in buckskins and my family would trade with the natives." He said he spoke to a man at the camp about the Sundance because "he's interested in all cultures." He heard warnings about not touching the pole and when Don placed the notice on it, someone said he'd be cursed. (Two days later Lyle James was in the hospital with pneumonia.) When he learned there was someone fasting and waiting for a vision, he told others that there shouldn't be noise in the area. He said that if there was any intention to use violence, he would have quit his job right there and that when they served the eviction notice, he believed it was a court order "legitimatizing" it. Mazurenko made an interesting statement that in the summertime, Crown land is leased for the cows to pasture in, but in the fall the cows have to be returned to deeded land to allow Crown pastures to recover. He stated that Lot 114 was an area used only to pass the cattle through for the summer grazing onto the Crown land east of that Lot. (In other words, the ranch doesn't want the cows on deeded land, such as Lot 114, during the summer.) He also admitted that the boundaries in the area are dictated by fences and roads, not by survey markers.
There were no more questions for Mazurenko after lunch, so the Crown brought in its next witness (#11), Cpl. Douglas John Hicks, 22 years on the force. Crown Counsel Jennifer Fawcus established that Cpl. Hicks met with Lyle James at 12:30 p.m. on June 13, 1995 at the intersection of the Forestry and Lakeshore Roads. Hicks said that he was shown an eviction notice and James said he was going to serve it to Percy in the camp. James wanted the police to go in, but Hicks said if the police went in, it would look very "confrontational".
He suggested that James take a couple of hands with him to serve it and then see what happens. He also told James to get a civil injunction, but James said it was too expensive to get a court order. James was upset, but spoke calmly. He showed Hicks the newly erected fence and the "no trespassing" signs. Hicks had been in that area four months earlier and the fence wasn't there then.
He said he kept the numbers down while looking at the fence and signs so that it wouldn't look like they were going in there to evict. After inspecting the fence, Hicks suggested that James serve the notice, then call him that night and let him know how it went. Hicks saw no firearms or heavy equipment with the group.
On June 14, 1995, at 11:30 to 11:45 a.m., he attended again to the area because of a complaint and ran into Lyle James at the same intersection as the day before. He told James that he was heading in to investigate a complaint and asked James not to go in. Hicks then went in along the lake shore to tell 3 or 4 groups of campers to leave for their own safety, then drove slowly up the field using the P.A. asking for Percy Rosette. He saw a man by a structure stand up and return to the Sundance area. Hicks then turned around and drove around to the other side of the camp (east side). A male and a female, described as "native Canadian", approached his car, but he couldn't identify either person. They wouldn't speak to Hicks, but Officer Wood spoke to them in a "foreign language". Another man walked up behind the truck who he recognized as being the man he saw earlier from the other side of the camp and whom Hicks identified in the courtroom as Percy. He and Wood left after fifteen minutes, then bumped into Lyle James at the intersection and asked him to stay away from the area for a couple of days until Hicks could get more instruction from his superiors. Lyle agreed. Hicks spoke to Dale James later on June 14th, but didn't return back to the area for further investigation.
Harry Rankin then cross-examined Cpl. Hicks by referring to Hicks' notes and "continuation reports" of June 13 and 14. "He said he couldn't afford the $25,000 to $30,000 lawyer fees an injunction would cost to evict someone off his own land", Hicks had reported. Rankin then read on that "It was pointed out to James that we sympathized with him, however, we didn't agree with his confrontational approach and that if someone gets hurt, the consequences will be his responsibility. It's his property and the police can't legally stop him from evicting the natives. ... it should be noted that this situation does have a potential for violence."
Hicks said that his notes are still his thoughts on the matter and Rankin replied that "it appears that history has borne you out", referring to the ensuing standoff. On June 13th, Hicks met with Lyle James for half an hour, noting in his continuation report that James had assembled twelve ranch hands and that they "intended to go to the site, serve the document and rip everything down." Hicks was "180 degrees opposed" to this course of action, but he was also aware that James "wasn't prepared to back down this time and that he has tried everything to work things out with the natives. The barb-wire fence and posted signs have gone too far. ... Enough is enough." When Rankin suggested that it would have been more sensible to "leave the gang behind" and bring in only two or three witnesses, since it was "provocative action in those circumstances", Hicks replied that is "wasn't in line with what I recommended". Hicks admitted there was a potential for danger if James didn't follow his advice and that he didn't want anyone getting hurt because of rash action. The next day, Hicks reported that "James is still intending on taking his men in to destroy the camp."
Hicks testified that he had favoured a civil action because he felt that an attempt to apply Section 42 of the criminal code might not have succeeded as long as the natives believed they were in the right.
Rankin referred Hicks to that section of the criminal code by stating that "I know an officer wouldn't know the whole code. Lawyers don't even know all the sections in Criminal Code. That's why we have judges." The judge shot back "that's also why we have appeal courts too" and the jury and lawyers had a good laugh.
Sheldon Tate established that Hicks was aware of the dispute going on for a few years since he was at the 100 Mile House Detachment in 1993 when Staff Sgt. Lindsay was still there. In February, 1995, Lindsay's replacement, Staff Sgt. Sarich, said that they wouldn't move on the issue unless a court order was acquired.
Hicks admitted that while the courts had to resolve the differences and that only with a court order could the police assist, he also knew James wasn't moving on this. He had assumed that James would serve the notice and was hopeful that he would do so peacefully. Hicks was surprised by how many ranch hands were with James, and although he believed James was going to use good judgement, he never checked the vehicles for weapons nor spoke to the people in the camp. He later admitted upon cross-examination from Don Campbell that cracking a bullwhip was "probably not a good idea" and that he would have discouraged the ranchers from bringing weapons depending on their intent. Tate wanted to know that "if there was a history of violence in the area between both parties", why did Hicks leave? and he replied, "Because I wasn't ready to jump into the middle of something".
Hicks admitted that you can't go into a dwelling to remove suspected stolen goods. He was aware of something being stolen, but when Hicks later called James at his residence, he was only told that the notice had been served but wasn't successful - James never mentioned the removal of the door and stove or that he didn't honour Hicks' requests from the 13th to go in with only a couple of men. On June 14th, Hicks told James to stay out and although Lyle was still frustrated, he complied. On the 15th, Hicks spoke with Staff Sgt. Porter and then wasn't involved anymore after that.
George Wool suggested to Hicks that the RCMP want to be seen as being neutral, but Hicks replied no - he was more sympathetic to James because "people were squatting on his property." He only wanted to appear to the encampment that they were going in there in an orderly fashion, even though, in his mind, he believed the land belonged to James and the people there were squatters. Although Staff Sgt. Lindsay was aware of the situation, Hicks didn't remember Lindsay ever intending to evict the "squatters". Hicks knew that native officers could do things that he couldn't, especially since a common complaint is that the RCMP side with the white establishment. Wool shed doubt on Hicks' memory about the vehicle he was driving on June 13, 1995. Hicks was quite certain that it was an unmarked car. Wool asked for the video taken by Dale James to be played and as it blasted white noise, Wool quipped, "That's even louder than my voice." Hicks and the jury then saw that he was driving a marked police car that day and Wool suggested that someone from the camp seeing this would surmise that the RCMP are in the area.
Hicks didn't know of anyone going out to do a land survey in the contested area, but he "had no call to" check for any survey markers because the proof would have to come out in court. Although Hicks knew there would be a survey needed to prove whose land it was, he didn't suggest to James that he get a survey done.
The judge thought Wool was finished and indicated to Don Campbell to proceed, but Wool wasn't finished. The judge quickly commented that "it was just wishful thinking" and Wool finished his cross-examination. He asked that Hicks' report be put forward as an exhibit, but Jennifer Fawcus didn't think it was necessary and the judge agreed with her. Hicks had a big smile on his face when Wool finally said that he had no further questions.
Defendant Shelagh Franklin had Hicks admit that he believed the property belonged to Lyle James "because he said so." Hicks had never heard of the inherent rights of the natives, nor of the Duty of Disallowance. He knew the Shuswap had no treaty with Canada and had heard that the Sundancers didn't believe the RCMP had jurisdiction. Shelagh suggested to Hicks that "You have no proof that James was in fact squatting on Shuswap land" and Hicks replied "No".
* Day 10: Monday, July 22 * Day 13: Thursday, July 25 * Day 11: Tuesday, July 23 * Day 14: Friday, July 26 * Day 12: Wednesday, July 24