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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1989-03-28] British Columbia. Supreme Court Mar 28, 1989

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 13730  Submissions  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.  VANCOUVER, B.C.  March 28, 1989  REGISTRAR:  Order in court.  In the Supreme Court of British  Columbia, Vancouver, this Tuesday, March 28th, 1989.  Calling Delgamuukw versus Her Majesty the Queen at  bar.  COURT:  Mr. Rush.  RUSH:  My lord, I would like to address you on the question  of the scheduling issue.  You may recall that we  deferred until this morning the issue of scheduling  the month of June.  We -- the plaintiffs are not in a  position at this point to schedule the case for the  month of June or schedule after that point.  There is  a present financial difficulty with the plaintiffs'  funding of the case, and the present financial  standing at this point does not allow us to schedule  our case after the end of May.  And we will require  that the case be stood down at that time from the  plaintiffs' perspective and we'll make a submission to  you later on, and that will be the submission that we  will make to the court unless the present financial  circumstances of the plaintiffs change for the better.  The schedule for the month of May, as I advised your  lordship, is the following:  We I think have already  scheduled the first week of May, that's a down week.  COURT:  Yes.  RUSH:  And May the 8th, I think I advised your lordship that  Susan Marsden, Miss Marsden will be testifying for the  period of one week in that -- in the month, and I've  advised my learned friends that for the week of May  the 15th, Dr. Robert Galois will testify, and again  we've scheduled one week for his evidence, and in the  week of May the 23rd, which is the last full week of  May, the evidence of Dr. Barbara Lane will be  tendered.  THE COURT:  I don't know why I have always assumed, I hope  incorrectly, that Dr. Lane may be more than a one-week  witness, or can she be done in one week?  RUSH:  We're proposing that she be done in one week.  COURT:  I see, all right.  RUSH:  Basically we have, for the most part, proposed that  the direct and cross for each of the plaintiffs'  experts be a week in duration.  I think for the most  part my friends have agreed with our timetabling on  that, so that is our present schedule.  I can advise  your lordship that were circumstances otherwise  THE  MR.  MR.  THE  MR. 13731  Submissions  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 COURT  MR. RUSH:  THE COURT  MR. RUSH:  THE COURT  financially we would not have finished the plaintiffs'  case at the end of the month of May, that the -- we  would, however, have finished by the end of the month  of June.  Now, I can only advise your lordship, you  asked some time ago that we advise you as much in  advance as we ourselves were aware of our  circumstances, and I can tell you that two months  advance notice is I think what was as much as we could  give your lordship and the court in this respect, but  obviously circumstances change, and in respect of our  application with regard to standing the case down, we  will give your lordship as much notice as we can, but  I think as things stand presently we're not in a  financial position from the plaintiffs' point of view  of continuing after the end of the month of May.  Well, Mr. Rush, can I just ask you this:  I haven't  kept track, but I think in late last year or early  this year I think you told me you had about 12  witnesses.  Yes.  Doesn't this almost exhaust that?  Almost, yes, yes.  We're examining as to calling one  further expert witness, possibly two, but we haven't  finalized a view of that, and we will always need to  call one, possibly two further lay witnesses, and I  have advised my friends about that.  One will deal  with certain genealogies, and we're proposing to do  that by way of affidavit.  All right.  Well, I -- I have to leave the question  of the plaintiffs' financial difficulties to others.  I can only say, as I've said before, that I would find  it, I think intolerable is not too strong a word to  use, for the shutting down of this case so close to  the end of the plaintiffs' case and at a time when we  have been -- at a time after we have been struggling  so hard to move this case along.  And while it's a  personal matter, it's very difficult for me to find  other gainful employment during down time because I  can no longer sit alone, and because of the fact that  we had assumed that we would be sitting to complete  the plaintiffs' case in June and that we would even be  sitting in July so as to be sure of the completion of  the defendant's case by the end of the year, and in  that respect I cancelled a long looked forward to trip  to Europe, and I think insignificant as that is, it's  part of the total picture that the failure of the  plaintiffs to be able to proceed will be most 13732  Submissions  1 unfortunate, I think intolerable is not too strong a  2 word.  So I hope whoever has to deal with these  3 problems will keep those unhappy words in mind.  I  4 think it should be recorded that the court is anxious  5 to have this case completed for many many reasons, not  6 the least of which that other cases are lined up  7 behind it, and their progress depends in part on this  8 one, so I fervently hope that satisfactory  9 arrangements can be made and that it will not be  10 necessary to adjourn this trial for any reason.  11 Subject to that, I don't think there's much more I can  12 properly say.  All right, we have another problem this  13 morning, do we not?  14 MR. GOLDIE:  Well, I was just going to say with respect to this  15 scheduling, my lord, I will be asking my friends to  16 consider whether the week of May 15th could be taken  17 as a week off and have Dr. Galois in the four-day week  18 of the 23rd and Dr. Lane in the five-day week  19 following.  The reason I say that, my lord, is that an  20 appeal in the Supreme Court of Canada which was to be  21 heard in January was postponed and will be heard in  22 the week of May 15th, and it's been set for four days.  23 I do not think -- and the other reason is I do not  24 think that Dr. Barbara Lane can be completed in four  25 days.  2 6    THE COURT:  Well, have you —  27 MR. GOLDIE:  I haven't approached my friends on this.  I just  28 want to inform your lordship that I will be doing so.  29 THE COURT:  All right.  I won't ask your friends to respond to  30 that at this time.  All right.  There was a problem  31 raised last week about the identification of defence  32 witnesses, Mr. Goldie.  33 MR. RUSH:  I think I raised the issue of the expert witnesses as  34 yet advised of by the defendants, and although this  35 issue was directed at the Provincial defendant, I  36 directed it at both defendants.  Basically having been  37 advised by Mr. Goldie last week that the defendants,  38 at least the Provincial defendant, intended to call  39 further expert evidence, I made a proposal with regard  40 to disclosure of that -- of their summaries or  41 opinions, which in sum was that we be given 120 days  42 notice of those opinions and experts' summaries.  I  43 also, my lord, would ask that if my friends are now  44 aware of who those experts are and their  45 qualifications, that we should be advised of them  46 immediately.  And we're also, I think I mentioned that  47 obviously I think this is attended upon the disclosure 13733  Submissions  1 of opinion or summary, that there be document  2 reference disclosures in the course of disclosing  3 opinions.  4 THE COURT:  Will you respond to that, Mr. Goldie?  5 MR. GOLDIE:  Well, my lord, there's a possibility of one more  6 expert.  The reason that I say possibility is that it  7 was a matter that Mr. Robertson was looking after, and  8 I have to -- I'm in the process of reviewing the  9 memoranda that he had prepared with respect to that.  10 The decision had not been taken before his death  11 because the potential witness had himself suffered a  12 death in his family and had been unavailable for  13 several months.  The -- with respect to documents, my  14 friends have the summaries of all of the other experts  15 that we intend calling, and there is -- if there isn't  16 a bibleography of their references, all of the  17 references -- all of the documents, so far as my  18 knowledge goes, have been disclosed, but if my friends  19 are asking me -- I'm not sure what my friends are  20 asking me beyond that.  21 THE COURT:  I think they want to fix or have some certainty in  22 the timeliness of the disclosure of the identity and  23 the burden of the evidence to be given by any experts  24 that you're going to -- that are going to be called.  25 MR. GOLDIE:  Well, I had intended to observe the 60-day rule,  26 there's no doubt about that.  The idea of now  27 extending to 120 has, so far as I can see, no  28 reasonable purpose to it, especially having regard to  29 the advice we received this morning, the plaintiffs  30 may not proceed beyond the end of May.  31 MR. RUSH:  Well, I think my friend has not understood or I've  32 not made clear, probably the latter, what it is I'm  33 asking for.  I think the 60-day rule about disclosures  34 of who the witnesses are and when they will be called  35 for present -- presently disclosed expert opinions  36 should remain in place for the defendants, as it has  37 for the plaintiffs, but my request is in respect of an  38 expert opinion that we have not had any notice of to  39 this point, and it's that type of opinion, and when my  40 friend says there may be one more, that we wish  41 120-day notice for, and if there are documents that  42 are fresh documents contained or referenced in that  43 report or opinion, then I think those should be  44 disclosed at the same time.  So I'm trying to  45 distinguish between those two types of opinions and  46 their disclosure times.  47 THE COURT:  Well, this witness, this mystery witness wouldn't be 13734  Submissions  1 called early in your case, would it be, Mr. Goldie?  2 MR. GOLDIE:  I don't think so.  He's really — if he's called at  3 all, it is because we have come to the conclusion that  4 one of the other experts may not be competent to speak  5 in a very limited area.  6 THE COURT:  Yeah.  7 MR. GOLDIE:  But I don't wish to go any further than that  8 because I'm still in the course of reviewing Mr.  9 Robertson's memoranda and coming to a conclusion on  10 that point.  11 THE COURT:  Well, in view of the length of notice that has been  12 given, the reports of the plaintiffs' experts, I must  13 say I tend to favour 120 days, but I don't think it  14 is -- we're at the 120-day threshold or even close to  15 it yet, and I think perhaps the matter should be  16 deferred for a few weeks and perhaps Mr. Goldie will  17 then have made a decision on whether this witness  18 should be called, and then we'll speak to it again.  I  19 think the matter should be spoken to again.  Is two  20 weeks away too near, Mr. Goldie?  21 MR. GOLDIE:  No.  There are other reasons why I'm going to have  22 to make that decision fairly soon.  23 THE COURT:  Yes, all right.  24 MR. GOLDIE:  And I anticipate making it within the two weeks.  25 THE COURT:  Well, I think the matter should be raised again say  26 around the start of Mr. George's evidence, which I  27 think starts on April 17th.  Can the matter be spoken  28 to again then?  All right, thank you.  29 MR. GOLDIE:  My lord, unless my friends have something further,  30 I wish to seek a direction from your lordship with  31 respect to a Notice to Admit before Mr. -- the next  32 witness is heard.  It -- this has to do with a Notice  33 to Admit which was dated July 26th, 1988, and the  34 background of it arises out of the discussion that was  35 held on -- on July the 4th, 1988, and I have handed up  36 a volume of documents to your lordship, and the  37 transcript is the extract from -- the transcript is  38 found under tab 1.  Now, the background of the  39 discussion was an application by my client for an  40 order with respect to band documents, and in the  41 course of that discussion there was reference made to  42 fishing licences, food fishing licences given to  43 the -- given out by the Government of Canada.  The  44 discussion got around to the point of the disclosure  45 of those in the -- in the custody of the plaintiffs,  46 and at page 7558 Mr. Grant said at line 28:  47 13735  Submissions  1 "Just one point, and that is on the food fishing  2 permit, my lord.  If food fishing permit system is  3 a system that applies to Indians.  If my friends  4 disclose all food fishing permits that are issued  5 out of the Hazelton District Office which covers  6 in its entirety the area within the claim, that is  7 not all the claim area but the Hazelton area  8 office covers pretty well all of its area within  9 there.  I suspect that without the aid of  10 genealogies, they would be able to pretty sure  11 that 95 and 99 percent of them are the Gitksan and  12 Wet'suwet'en."  13  14 That is to say those who have been granted licences  15 are the Gitksan and Wet'suwet'en.  16  17 "They have a different problem out of the Smithers  18 office but not out of the Hazelton office."  19  20 My friend's point there being that these matters would  21 be available to the defendants if they made these  22 searches.  And after this discussion the -- Mr.  23 Macaulay on the next page said, he was responding to a  24 question how soon disclosure of those permits could be  25 made, he said at line 5:  26  27 "It was done a year ago approximately, my lord.  We  28 have listed hundreds and hundreds of food fishing  2 9                  permits.  We have the copies, we have the carbons,  30 the originals are in the hands of the permitees,  31 and I doubt very much if a permitee keeps them,  32 individual persons, and not necessarily Gitksan."  33  34 And then he said that they had gone to a great deal of  35 trouble to provide the disclosure and the list that  36 had been done, and then at line 31 your lordship said:  37  38 "All right.  Well, I am going to adjourn this party  39 application to some date towards the end of July  40 when the matter could be spoken again and, Mr.  41 Goldie, I think you can take immediate steps,  42 based on what Mr. Macaulay has said and if you  43 haven't got what you think you need from the  44 plaintiffs by that time, then I may have to make  45 an Order that I would prefer not to make."  46  47 Now, of course the defendants were precluded from 13736  Submissions  1 approaching any of the plaintiffs personally, as we  2 had been warned that would be regarded as improper.  3 The Notice to Admit that arose out of that is under  4 tab 2, and it was served on I think July the 26th or a  5 couple -- within a couple of days.  It's dated July  6 the 26th, and it was a Notice to Admit facts, not  7 documents.  And the facts that were sought to be  8 admitted are set out and starting at page 2:  9  10 "Except for those who are people in the Houses of  11 the Kitwancool Chiefs as alleged in paragraph 52  12 of the Amended Statement of Claim:  13  14 1.  That each of the persons named in items 5095  15 to 5118 inclusive in the 8th Supplementary List  16 of Documents of the Defendant The Attorney General  17 of Canada, dated May 11, 1987 was, on or about the  18 date stated, issued with an Indian Food Licence  19 similar in its printed parts to, or to a like  20 effect to, Exhibit 588."  21  22 Now, my lord, Exhibit 588 is under tab 3, and it is,  23 as your lordship will see, a form with a number and  24 headed "Indian Food Licence".  There's a name, and  25 under "Fee" there is printed the word "Nil", and then  26 the printed words:  27  28 "Being an Indian is hereby licenced to fish for  29 fish to be used for food for himself and his  30 family in the waters of."  31  32 And then that is to be filled in, by method, and that  33 is to be filled in, for species, and that is to be  34 filled in.  Then there's a provision for the time that  35 the licence is valid and at the place where it is  36 issued at and the person issuing it.  And then there  37 is a provision for the information with respect to the  38 licensee, and there's a signature of the applicant  39 immediately following the words, and I quote:  40  41 "I certify that I am an Indian registered under the  42 Indian Act."  43  44 Now, that -- it was the fact that it was sought to be  45 admitted was that certain people, and I'll come to the  46 lists themselves, were:  47 13737  Submissions  1 "Issued with an Indian Food Licence similar in its  2 printed parts to, or to a like effect to Exhibit  3 588; is or —"  4  5 And then continuing:  6  7 "is or was a Gitksan or Wet'suwet'en person."  8  9 And then pausing there, that is to take into  10 consideration the fact that there may have been some  11 deaths.  And continuing:  12  13 "And if living on October 23rd, 1984, is or was a  14 named Plaintiff or is or was represented by a  15 named Plaintiff."  16  17 Now, each of paragraphs 2, 3, 4, 5, 6, 7, and 8 are  18 similar in referring to different parts of the Federal  19 Defendant's list of documents.  There is a variation  20 because some of the licences are issued in the names  21 of bands, and I'll come to that shortly.  Now, if I  22 could ask your lordship to turn to page -- or tab 4,  23 this is the list to which paragraph 1 of the Notice to  24 Admit refers, and the list is substantially in excess  25 of this, and the selection has been made because this  26 appears to be from the inspection relating to people  27 who are or were plaintiffs in this action.  For  28 instance, on the first page, document 5098 is a copy  29 of an Indian Food Fishing Licence issued to Chris  30 Skultz, I think that should be Skulsh.  5099, August  31 the 1st, 1980 copy of Indian Food Fishing Licence  32 issued to Peter Muldoe, a name that has been heard a  33 number of times, and of course he has given evidence  34 here.  5100, copy of Indian Food Fishing Licence  35 issued to Stephen Robinson.  And over the page, Ernest  36 Hyzims, Herb Wesley, Jeffery Harris, George Turner,  37 and so on.  My lord, I could go through each of the  38 other document lists or excerpts under -- tab 5 is the  39 documents that were disclosed on the 10th  40 Supplementary List, under tab 6 there was one name  41 that appeared to be relevant, under tab 7 there was a  42 very considerable list of people.  And there is  43 repetition, the same names appear on a number of  44 occasions.  On page 2 under tab 7 the name Robert  45 Jackson, for instance, appears, and Peter Muldoe on  46 the next page, Robert Jackson, James Morrison, Stanley  47 Williams, Chris -- on page 15, Chris Skulsh, Walter 1373?  Submissions  1 Wilson is the third name there, and so on, until we  2 get to tab 9.  There your lordship will see that the  3 licences were issued to Kitsegukla Band members,  4 Kitwanga Band Council, Gitwangak Band, Gitwangak Band  5 members, Kispiox Band, and the Notice to Admit is  6 worded with respect to those, so as to take into  7 account the names which are disclosed on the list.  8 And under tab 10 we have licence issued to the  9 Kitsegukla Band, the Moricetown Band, Hagwilget Band,  10 the Glen Vowell Band, and the same thing, there are --  11 that continues.  Now, the first position that my  12 friend took is indicated in his letter under tab 12,  13 and he said first that he could not begin to answer  14 the Notice within the time required, and of course I  15 recognized that.  And then my friend took the position  16 that the Rule 31(3) requires a copy of a document to  17 be attached to the Notice when delivered.  I responded  18 to that under tab 13 by saying that with respect to  19 the points that he raised, the Notice sent you is  20 confined to admission of fact and did not require  21 admission of documents:  22  23 "Rule 31(1) speaks of notices to admit documents or  24 facts and while Form 21 assumes both are required  25 a Notice may, as did the Notice in respect of  26 fishing permits, refer to facts alone.  27 Under the old rules separate notices were required  28 in respect of documents and facts.  The new rule,  29 which allows a Notice to refer to both, does not  30 alter the fact that each is a separate matter and  31 Form 21 recognizes this."  32  33 I say:  34  35 "Rule 31(3) applies only to a Notice to Admit  3 6 documents."  37  38 That's the rule that requires a copy of the document  39 to be attached.  And then I concluded by asking my  40 friend to reconsider his letter -- his position, I  41 should say.  And he did so in his letter of August the  42 4th, and he was good enough to characterize my  43 argument with respect to rule 31(3) is interesting but  44 he did not agree with it.  And the -- then he goes on  45 to say:  46  47 "Your Notice to Admit requests wide-ranging and 13739  Submissions  1 detailed admissions as to facts.  We would be  2 greatly assisted to have the documents from which  3 the admissions are being sought.  I suspect that  4 you have pulled these documents from Canada's  5 Supplementary Lists and therefore have easy access  6 to them.  It is more convenient for you to provide  7 me with copies of your documents than for me to  8 duplicate the effort of searching, culling and  9 copying the documents from Canada's List."  10  11 And I replied to that in a letter under tab 15 on the  12 5th of August, and I say:  13  14 "You suggest, or rather suspect, that we have  15 copies of the fishing permits listed in Canada's  16 Lists.  We do not and I have no present intention  17 of obtaining copies.  18 The admission I seek is that your clients were  19 issued with permits in form similar to a court  20 exhibit.  I would not think it necessary that the  21 copies in Canada's hands be inspected for the  22 purposes of such an admission."  23  2 4 And so on.  And I say:  25  26 "If the admission set out in my Notice to Admit  27 continues to create difficulties, perhaps you  2 8 would be good enough to let me know the terms of  29 an admission you would be prepared to make."  30  31 And then my friend said in his letter of August the  32 10th:  33  34 "I will have to review the copies of the fishing  35 permits listed on Canada's lists in order to  36 respond to your Notice to Admit.  When I have done  37 so, I will get back to you about your request and  38 whether there are other terms of an admission we  39 would be prepared to make."  40  41 And then I wrote asking my friends -- under tab 17 I  42 wrote in September asking him if he could clarify his  43 position, and then he responded to that on September  44 9th saying he was continuing to review it.  And on  45 February 21st of this year I asked my friend to let me  46 have his final position, and that was followed by some  47 correspondence on March 16th.  I said: 13740  Submissions  1 "If I do not have your final position in this  2 matter by Monday, March 20th, I will ask that Mr.  3 Morrell be stood down until this matter has been  4 resolved by the judge."  5  6 I might say, my lord, that the whole purpose of this  7 is directed towards Mr. Morrell's cross-examination.  8 And then on tab 21 my friend's letter of March the  9 21st, when he takes his -- the position that I gather  10 this is his final position.  He says:  11  12 "We are unable to make the admissions which you  13 request in your Notice to Admit of July 26, 1988.  14 We are unable to admit that the documents were  15 'issued' to the persons enumerated in the listed  16 numbers of the Federal Defendant's Supplementary  17 Document Lists.  In some cases the persons are  18 deceased or cannot be identified.  In other cases  19 the persons cannot confirm or say anything about  20 the 'issuance' of the food fishing licence."  21  22 And then he states that as to the scheduling, the  23 request has no bearing on the scheduling.  I have  24 indicated to your lordship the importance of the  25 documents.  They are primarily of significance with  26 respect to Mr. Morrell's cross-examination because he  27 purports to testify with respect to the regulation of  28 Indian Fisheries.  From his evidence it would not  29 appear that he has taken into consideration the nature  30 of the regulation evidence by these permits.  The  31 ruling or direction which I seek from your lordship is  32 that there be a presumption of fact, rebuttable, that  33 a food fishing permit in form similar to Exhibit 588  34 was issued to each of the persons, bands named or  35 identified in the Notice to Admit, that such permits  36 were issued on the application of the persons or bands  37 named or identified, and that such individual persons  38 named or identified were or are plaintiffs.  Now, I  39 should modify that with respect to the band councils,  40 they're not plaintiffs, the individuals.  Now, this,  41 my lord, is a presumption of fact, it -- I point out  42 to your lordship that it was stated by my friend, Mr.  43 Grant, on the 4th of July in the transcript reference  44 under tab 1, he said:  45  46 "I suspect that without the aid of genealogies,  47 they would be able to be pretty sure that 95 and 13741  Submissions  1 99 percent of them are either Gitksan or  2 Wet'suwet'en."  3  4 That's at line 36, 38.  With that and with the  5 evidence that is the inferences to be drawn from the  6 names that are stated, that the -- it is, in my  7 submission, within your lordship's discretion to make  8 the ruling I request.  I have a couple of references  9 to Phipson and Sopinka.  First, Phipson, my lord, on  10 page 1046, the learned author says in the first line  11 under the heading "Presumptions":  12  13 "Presumptions are devices whereby the courts are  14 entitled to pronounce on an issue notwithstanding  15 that there is no evidence or insufficient evidence  16 about it.  They take effect by way of allocating  17 the burden of proof in relation to that issue to  18 one party or the other."  19  20 Then on page 1047, the top of the page, "Presumptions  21 of Fact":  22  23 "Strictly speaking, the term 'presumption of fact'  24 is a misnomer. It describes the readiness of the  25 courts to draw certain inferences from common  26 human experience.  In reality it is no more than a  27 slightly grandiose term for the ordinary process  28 of judicial reasoning about facts.  It remains  29 a term of importance largely because the law  30 relating to presumption is intolerably confused,  31 and one source of that confusion has been the  32 failure of the judges to differentiate clearly the  33 inferences of fact which the law requires them to  34 draw (true presumptions) from those which common  35 sense impels them to draw (presumptions  36 of fact)."  37  38 Sopinka deals with the consequences of that in a  39 little more -- in a little more detailed way.  At page  40 375 the learned author states:  41  42 "Presumptions of law are a consequence 'annexed  43 by law to particular facts'.   A presumption of  44 fact is 'an inference which the mind naturally and  45 logically draws from given facts, irrespective of  46 their legal effect'."  47 13742  Submissions  1 And then he goes on to talk about presumptions of fact  2 at page 377:  3  4 "When facts adduced raise a presumption of fact  5 they give rise to a permissive inference which the  6 trier of fact may, but not need, draw.  Inasmuch  7 as it is the usual function of the trier of fact  8 to draw inferences from other facts, one may  9 wonder why certain facts or a combination thereof  10 should be accorded special treatment."  11  12 And then he goes on to discuss that, and the last  13 paragraph on page 378:  14  15 "The term 'presumption of fact' is used in many  16 instances in which it is desired merely to shift  17 the secondary burden to a particular party.  When  18 used in this sense, it means that the facts are  19 such that a certain inference should, but need  20 not, be logically drawn."  21  22 Now, in my submission the appropriate way of dealing  23 with this is that there should be a ruling from your  24 lordship that there is a presumption of fact in the  25 manner that I have described.  Now, that is  26 presumptions of fact are always rebuttable.  And my  27 friends are at liberty to demonstrate that the people  28 who are listed there are either not Gitksan or  29 Wet'suwet'en, although my friend Mr. Grant has stated  30 that 95 or 99 percent of them are, and that they have  31 been issued in accordance with the terms of Exhibit  32 588.  33 THE COURT:  Mr. Goldie, doesn't that legal device described both  34 by Phipson and Sopinka relate to the mental processes  35 that go on, or the treatment that he is given after or  36 to facts that are established in evidence?  37 MR. GOLDIE:  Well, the facts —  38 THE COURT:  Wouldn't you have to have these food permits in  39 evidence before I could indulge myself in that kind of  4 0 presumptive game?  41 MR. GOLDIE:  Not in my submission, my lord.  The form is in  42 evidence now.  The fact which is sought to be admitted  43 is that similar forms were issued to the people listed  44 by the Government of Canada as in respect of which  45 they have the copies of the licence.  The licence  46 itself is in the possession of the licencee, and of  47 course if one was to get those in evidence one would 13743  Submissions  1 have to either subpoena all of the potential or  2 punitive licensees or to find some other way of  3 gaining an admission, but the admission that is sought  4 and the one that I say is properly the subject matter  5 of a presumption is that similar licences were  6 listed -- were issued to all of the people that are  7 listed.  8 THE COURT:  Well, on page 377, Mr. Sopinka said this:  9  10 "When facts adduced raise a presumption of fact  11 they give rise to a permissive inference."  12  13 Et cetera.  He starts out by saying "When facts  14 adduced raise a presumption".  Seems to me that this  15 process that you're -- for which you're contending  16 arises after the facts are adduced, and putting them  17 in the production lists of the Attorney General of  18 Canada doesn't quite reach that level.  19 MR. GOLDIE:  Well, I rely —  2 0    THE COURT:  Can you not put them in?  21 MR. GOLDIE:  I beg your pardon, my lord.  22 THE COURT:  If you were to put them in evidence, if you could,  23 then I don't rule on that, because I've heard Mr. Rush  24 say a number of times he doesn't think these are  25 business records, but if, for example, they were  26 business records and you could put them in, then I  27 would have no difficulty with your proposition.  28 MR. GOLDIE:  Well, I rely upon this, my lord, and Phipson at  29 page 1047, the author said:  30  31 "Strictly speaking, the term 'presumption of fact'  32 is a misnomer.  It describes the readiness of the  33 courts to draw certain inferences from common  34 human experience."  35  36 Now, there is evidence of the regulation by the  37 Department of Fisheries of the food fishing activities  38 of native Indians, and as I say, Exhibit 588 was --  39 has been proven.  And I say in reality -- the learned  40 author goes on to say:  41  42 "In reality it is no more than a slightly grandiose  43 term for the ordinary process of judicial  44 reasoning about facts."  45  46 Now, the fact that -- your lordship, that there is a  47 regulation by the Department of Fisheries and Oceans 13744  Submissions  1 of -- called food fishing, and secondly, that there is  2 a permit in hand, and thirdly that the Government of  3 Canada has stated that it has documents in its  4 possession which are Food Fishing Permits.  The  5 inference that I ask your lordship to draw is that  6 those -- the originals of those permits were issued to  7 the people listed, and that is a rebuttable  8 presumption.  It shifts the burden to the person  9 within whose knowledge that presumption can be  10 rebutted.  11 THE COURT:  Well, I — presently advised, Mr. Goldie, I would be  12 with you if those copies of permits were in evidence.  13 MR. GOLDIE:  Well, I can certainly -- I can certainly obtain  14 copies of the copies, because the Government of Canada  15 does not have the originals in evidence.  16 THE COURT:  No.  17 MR. GOLDIE:  Or does not have the originals in its possession.  18 But I can certainly obtain copies, and I can file  19 those copies.  20 THE COURT:  But on what basis are they admissible?  21 MR. GOLDIE:  Well, there's no doubt in my mind that they are  22 business records.  23 THE COURT:  Well, it seems to me that's the argument that I have  24 to have, because I think I recall Mr. Rush quickly as  25 having indicated it more than once that he did -- he  26 doesn't think they are business records.  27 MR. GOLDIE:  Well, they are the —  28 THE COURT:  Or admissible, or on some other basis.  It seems to  29 me that there's -- is there a presumption which may be  30 admissible of regularity.  I seem to recall something  31 sometime about a presumption of regularity with regard  32 to estate documents or this sort of thing.  If there's  33 some basis of admissibility of the documents are in,  34 then they may well rank rebuttal presumption in the  35 absence of anything else that they were issued to the  36 plaintiffs.  Certainly the names are -- many of the  37 names are familiar.  38 MR. GOLDIE:  That of course is one of the things that I rely  39 upon in applying what Phipson calls common human  40 experience or judicial common sense.  41 THE COURT:  Yes.  I'm quite prepared to apply the common sense,  42 or what's left of it, to evidence, but I am not  43 presently pursuaded that I can apply my particular  44 brand of common sense to the list of documents of the  45 Attorney General of Canada.  46 MR. GOLDIE:  Well —  47 MR. RUSH:  The -- your lordship will appreciate the concern that 13745  Submissions  1 I have is that the whole purpose of this lengthy  2 exercise was to -- are was to enable Mr. Morrell to be  3 cross-examined on the food fishing regulation, and  4 part of the cross-examination of course depends upon  5 the quantity of licences that are issued.  It's not  6 much good having evidence of just one licence, but I  7 am -- I would ask your lordship if your lordship is  8 concerned only with the fact that the -- that there  9 are no documents available which answer the  10 description given the Government of Canada's list --  11 THE COURT:  I'm prepared to accept the facts that those  12 documents exist, just because they're in the list.  I  13 don't think I can accept the fact that they're in  14 evidence.  15 MR. GOLDIE:  No, no, I appreciate that, I appreciate that,  16 because the Notice to Admit was not to bring into the  17 courtroom the copies.  The Notice to Admit was that  18 the originals had been issued, and the inference that  19 I -- that I had asked that be drawn was of course one  20 that the plaintiffs who are in the possession of the  21 information could rebut, but I am quite happy to make  22 arrangements to have a copy of all of the documents  23 listed by the -- by the Federal defendant to be filed,  24 but I would like to be in a position to -- subject to  25 your lordship's ruling on the question of  26 admissibility, and I'm prepared to deal with that when  27 we get the documents or before.  28 THE COURT:  Well, I'm -- at the moment you haven't persuaded me,  29 Mr. Goldie, that I can just now make a declaration,  30 that of rebuttal of presumption.  I think you've got  31 to get those documents into evidence in some way, and  32 if you're able to do that I haven't heard Mr.  33 Rush's -- but then it may be that depending on what  34 else happens I would make that presumption.  I don't  35 think I can commit myself to that at the movement.  I  36 don't think I can do anything until the documents are  37 in evidence.  38 MR. GOLDIE:  But I do want to emphasize that the Notice to Admit  39 did not require the documents to be placed in  4 0 evidence.  41 THE COURT:  And I think that if the — if there had been a  42 positive response to the Notice to Admit, this  43 probably would be solved, and in fact, that's the  44 reason for that rule to be there.  I don't think that  45 the search for truth can be defeated in most cases by  46 failure to admit a fact if it's capable of being  47 proven in some other way.  It's to shortcut the 13746  Submissions  1 necessity for that proof that we have admissions of  2 facts and admissions of documents.  I think in view of  3 the failure of the plaintiffs to respond positively to  4 the Notice, then I think you're in the position of  5 having to prove the documents, unfortunate as that may  6 be.  7 MR. GOLDIE:  Well, I -- as I say -- I do want to emphasize that  8 I had no interest in proving the copies which are in  9 the hands of the Government of Canada.  10 THE COURT:  I think referring to that now —  11 MR. GOLDIE:  I had hoped that your lordship's statement that  12 the -- that you haven't got what you think you need  13 from the plaintiffs, and my submission had been that  14 it is documents from the custody of the plaintiffs  15 that I want.  16 THE COURT:  Yes.  17 MR. GOLDIE:  Or acknowledgement that the documents had been  18 issued, then you would make an order that you would  19 prefer not to make.  Well, I accept your lordship's  20 statements that you prefer not to make the order I'm  21 asking for, but it doesn't really meet the  22 requirements of the case to simply call in the  23 Government of Canada and argue about the admissibility  24 of the copies.  But I've made my submission, my lord.  25 THE COURT:  I might make the point by way of the presumption  26 process, which is, as I've said and you have said, is  27 probably rebuttable, but I don't at the moment see how  28 I can assist you with respect to documents that aren't  29 before me.  I think -- I think I phrased it well the  30 other day when I said to you the other day I've -- the  31 other day being in July of 1988, where I think we're  32 down to measuring very fine grains of sands here, and  33 I also mentioned and noticed that I had forgotten all  34 about it, I mentioned the story yesterday of the rugby  35 players, it would be better if we went on with the  36 game than to worry about the rules, but I don't  37 think -- I don't think I can -- as I said before, I  38 don't think I can suspend the rules.  39 MR. GOLDIE:  Well, I had thought, of course, my submission was  40 based not on your lordship suspending the rules but on  41 your lordship accepting and using a device for  42 shifting the burden of proof, that's all it is.  4 3 However, I've made my submission, my lord.  44 THE COURT:  Yes, all right.  I don't think I can help you at the  45 moment.  Is there anything you need to add to this,  46 Mr. Rush?  I don't need to hear you in reply to Mr.  47 Goldie's submission, it doesn't seem to me to be a 13747  Submissions  1 formal matter to --  2 MR. RUSH:  I think it's much more than a formal matter, my lord,  3 and I don't think it's just a matter of counting  4 grains of sand or shifting them, I think it's a matter  5 of that the plaintiffs being able to, in most  6 instances, to make the admissions that are sought as  7 admissions of fact, and that was the point of the  8 response of -- my final response to my learned friend,  9 and where we are not in that position we simply cannot  10 make the admission.  There are 1,885 separate permits  11 that are involved with up to three to five -- up to  12 three or in some cases five separate fact admissions  13 on each one.  14 THE COURT:  Well, I accept -- I see that, but it does seem to me  15 that it would not be beyond reasonable for the  16 plaintiffs to admit that if the Attorney General of  17 Canada has in its possession a copy of a licence  18 issued to Pete Muldoe, that that licence was issued to  19 a Gitksan person --  20 MR. RUSH:  Oh, yes, my lord.  The point about Pete Muldoe is of  21 course, if my friends, concerned as they are about  22 these admissions, there have been a number of Gitksan  23 and Wet'suwet'en people that have both been called as  24 witnesses and cross-examined on territorial affidavits  25 where for the -- for many of them those permits were  26 put to those witnesses and many of them they weren't.  27 The opportunity was certainly there for my friend to  28 determine whether or not those facts could be  29 admitted.  Now, I should advise your lordship that  30 we're taking steps, I've asked from the Federal  31 Government the copies of the band documents, because I  32 think that they are in a different category, and  33 we're -- if I haven't received those copies, but if  34 I -- if and when I did I would -- I think I can look  35 at those separately, but I -- I was hoping I would be  36 able to get them before today.  That being the case, I  37 say, my lord, that with regard to the types of  38 admissions that are being sought in respect of the  39 vast number of individuals and separate permits, that  40 the admissions simply cannot be made in as  41 straightforward way as my friend would think.  I want  42 to point out as well that with regard to what would  43 allow your lordship to make a presumption, I think  44 your evaluation of the existing fact base to make  45 those presumptions is correct in the sense that my  46 friend cannot demonstrate to the court that similar  47 original forms were issued to other plaintiffs. 1374E  Submissions  1 That's not a fact in the case.  My friend cannot  2 demonstrate that the licence is in the hands of the  3 licensee; that's not a fact in the case.  And I say  4 that you can't then jump from the absence of those  5 facts to the presumption that similar licences of the  6 kind that is exhibited containing the facts that are  7 sought to be admitted in the Notice, that those  8 similar facts should be presumed in respect of the  9 licences.  And I say that your lordship's  10 determination, or at least your tentative  11 determination on that is correct.  But that's really  12 all I have to say.  13 THE COURT:  All right.  Well, I think at sometime counsel have  14 promised me we're going to have an argument about  15 business records, and there may be other -- there may  16 be other categories of admissibility.  It's been said  17 various classifications of categories are never  18 closed, and this may be one of them, but in the  19 existing concepts of the law there may be avenues that  20 have to be explored, and until that happens I don't  21 think I can do anything about the problem Mr. Goldie  22 faces.  Certainly I have never understood that the  23 court has any authority to coerce a party into making  24 any admissions at all if the system's functioning on  25 the assumption that the court does not have that  26 authority, and I think it's probably best that it  27 should not.  All right.  Shall we proceed with the  28 witness.  29 MR. MACAULAY:  My lord, before we proceed with the witness, I  30 have to tell your lordship I have submissions to make  31 on the relevancy of most of the witness' evidence, not  32 just part, and I'm in your lordship's hands whether  33 that submission should be made before the witness is  34 sworn, after he's sworn, before his evidence is led as  35 to his qualifications or after.  36 THE COURT:  I think if there's going to be a contest that it's  37 best that the witness be called and we see what he's  38 qualified to give evidence about.  39 MR. MACAULAY:  This has nothing to do with qualifications, my  40 lord, this is relevance.  We may have submissions to  41 make on qualifications, but if certain chapters of his  42 report are not relevant, then no point in making  43 submissions on his qualifications or lack of  44 qualifications in dealing with those chapters.  45 MR. GRANT:  My lord, if I may speak here, I will be leading Mr.  46 Morrell's evidence.  This is a similar issue I think  47 you faced with Dr. Daly, if you recall, in which we 13749  Submissions  1 went through Dr. Daly's qualifications, and the first  2 question that Mr. Willms asked, he raised whether or  3 not with the qualifications and relevance, and in that  4 case Mr. Willms and Miss Koenigsberg said "Well, we  5 have concerns about the relevance of some of his  6 evidence", and that was that very large report.  I  7 think the appropriate practise, and the practise that  8 I assumed, because my friend did have the courtesy of  9 giving me notice of some of his concerns about  10 relevance, is the approach of having the witness  11 called, qualified, seeing what his areas of expertise  12 are, and dealing -- there's no -- I don't believe from  13 what either my friends have said that there's any  14 question that there is parts of his report that are  15 relevant and parts of his evidence that are relevant,  16 but there are parts that they dispute relevance, and  17 in the context of both his qualifications and the  18 context of the evidence that the court will make that  19 ruling, and I submit that that's the appropriate  20 procedure to follow.  21 THE COURT:  Does your objection, Mr. Macaulay, go to the whole  22 of his evidence or just a part?  23 MR. MACAULAY:  Most of it, what, 90 percent.  24 THE COURT:  Well, I don't think there's anything magical about  25 calling the witness and having him qualified if his  26 qualifications are not in dispute.  I think the  27 question of relevance can be determined on the basis  28 of statements of counsel, so I'm in two minds about  29 the way to proceed.  You would like to do it first,  30 would you, Mr. Macaulay?  31 MR. MACAULAY:  Well, it seems to me that we narrow the area of  32 inquiry into qualifications if we dispose of the  33 relevance issue in this case.  34 THE COURT:  All right.  And you, Mr. Grant, want to get into the  35 evidence and wait for an objection, do you?  36 MR. GRANT:  Well —  37 MR. MACAULAY:  I wouldn't think two sentences.  38 MR. GRANT:  That would be different, my lord.  I appreciate what  39 my friend's objection is on relevance, but for you to  40 make that -- and I agree that the objection -- the  41 question of relevance is something to be argued, but  42 the context in which that evidence is; in other words,  43 within the range of his qualifications and what he is  44 saying in his opinion, I submit, are important for you  45 to know to make that ruling on relevance, and I don't  46 necessarily say that means the entirety of his  47 evidence, but put it in this context of the area of 13750  Submissions  1 expertise, which is fisheries management and fisheries  2 science, I quite frankly don't think that my friends  3 and I are that far apart.  I say that --  4 THE COURT:  You accept that you want the evidence in and he says  5 I shouldn't hear it.  6 MR. GOLDIE:  Very slight difference.  7 MR. GRANT:  No, in — I think my friend — I think my friend has  8 a concern about the characterization of the witness'  9 evidence, which if correct sustains his view, that is  10 he says this relevance is going to make in points, and  11 that point is not relevant, and I don't disagree with  12 my friend.  If the evidence is going in to make that  13 point, it's not relevant, but the evidence is not  14 going in for the purpose my friend is supposing.  15 THE COURT:  All right.  Mr. Goldie, do you want to contribute to  16 this?  17 MR. GOLDIE:  Well, I will support Mr. Macaulay with respect to  18 what I understand to be his principal objection.  As  19 well, I have certain objections based on  20 qualifications, so that I can make my submissions at  21 any time.  22 THE COURT:  All right.  Well, if there's going to be an argument  23 about qualifications, I think I'll proceed in the way  24 suggested by Mr. Grant, and I'll deal with the matter  25 as soon as we get to the question of qualifications.  26 I must say that I think these matters very often can  27 be dealt with in the way of statements of counsel, and  28 I have in mind Mr. -- I think it was Chief Justice  29 Gayle(?), who said in Regina versus Deitrich that we  30 waste too much time at criminal trials on voir dires,  31 we should determine the admissibility on the basis of  32 statements of counsel.  And I think that's a  33 commendable practise, but we haven't followed it in  34 this case, and for that reason I'll deal with the  35 question of qualifications first.  You feel free to  36 object whenever you think your position is at risk,  37 Mr. Macaulay.  All right.  38 MR. MACAULAY:  Oh, yes.  3 9 THE COURT:  Thank you.  40 MR. GRANT:  Call Mr. Mike Morrell to the stand.  41  42 MICHAEL R. MORRELL, a witness herein  43 called on behalf of the Plaintiffs,  44 having been duly sworn, testified as  45 follows:  46  47 THE REGISTRAR:  Please state your name for the record, please, 13751  Submissions  1 and spell your last name?  2 A  Michael R. Morrell, M-O-R-R-E-L-L.  3 THE REGISTRAR:  Thank you, you may be seated.  4 MR. GRANT:  My lord, before asking the questions I will —  5 regarding qualifications of Mr. Morrell, I will -- I  6 am endeavouring to qualify Mr. Morrell in the field of  7 fisheries science as a fisheries scientist qualified  8 to give opinion evidence on the nature of the  9 contemporary and historical fisheries of the Gitksan  10 and Wet'suwet'en, including the Gitksan and  11 Wet'suwet'en management of those fisheries.  Also, to  12 give opinions on those fisheries, that is the Gitksan  13 and Wet'suwet'en fisheries, in the context of the  14 history and current status of all fisheries affecting  15 Skeena stocks, that is the Skeena fisheries stocks,  16 and the status of all Skeena fishery stocks.  Thirdly,  17 the relationship of Skeena stocks to other stocks in  18 the region as defined in map 20 of the map atlas.  19 Fourthly —  20 THE COURT:  That big one that I had here?  21 MR. GRANT:  It is the large map atlas.  I don't believe you have  22 map 20 yet.  23 THE COURT:  Oh, all right.  24 MR. GRANT:  It will be tendered through this witness.  Three  25 maps will be tendered through this witness actually.  26 Fourthly, the location of Gitksan and Wet'suwet'en  27 fishing sites as reflected in map 22.  Fifthly, the  28 impact of fisheries management of the Department of  29 Fisheries and Oceans on the Gitksan and Wet'suwet'en  30 fisheries, historically and up to the present.  31 THE COURT:  Could you let me have that one again, please, impact  32 of fisheries management of the Department of Fisheries  33 and Oceans upon --  34 MR. GRANT:  Gitksan and Wet'suwet'en fisheries, historically and  35 up to the present.  36 MR. GOLDIE:  My lord, I wonder if my friend might clarify a  37 phrase.  He used the phrase "Gitksan and Wet'suwet'en  38 fisheries".  I assume he's talking about the run of  39 fish in the Skeena and Bulkley Rivers and tributaries.  40 MR. GRANT:  I commenced using that term, the contemporary and  41 historical fisheries of the Gitksan and Wet'suwet'en,  42 including the Gitksan and Wet'suwet'en management of  43 those fisheries.  These are the fisheries of the  44 Gitksan and Wet'suwet'en people within the territory,  45 the claimed territory.  46 MR. GOLDIE:  As alleged, I mean that's an issue for your  47 lordship. 13752  M.R. Morrell (for Plaintiffs)  In chief on qualifications  by Mr. Grant  Oh, yes, it's within the claim territories.  The claim territories, yes.  All right.  My lord, I have a document book which includes the  C.V., curriculum Vitae of Mr. Morrell.  Can you turn  to tab 1 -- oh, possibly, my lord, just for ease, this  one -- an exhibit number could be reserved for this  book and then we'll mark them by tab number.  I'm not  certain what the next number is.  fRAR:  The next exhibit number will be 971.  )N IN CHIEF BY MR. GRANT:  Exhibit 971.  Can you turn to tab 1, Mr. Morrell?  I'm there.  You -- you were born in Chicago, Illinois on May 4th,  1942?  Yes.  And this document that is set out at tab 1 is a  curriculum -- is your Curriculum Vitae?  That's right.  And you obtained a Bachelor of Arts in biology in  1968?  That's right.  From Stanford University?  That's right.  Now, in -- you took -- what courses did you take in  that -- in obtaining your Bachelor of Arts which would  be relevant to your subsequent work with the Gitksan  and Wet'suwet'en people?  Well, in some sense my whole education is relevant to  it.  In terms of work leading to my biology degree,  it's a core curriculum of basic biology courses, basic  botany, zoology, anatomy, physiology, that sort of  thing, genetics, becoming more specific to fisheries.  Science tasks would be courses in ecology, statistics,  basic statistics course, and a biometrics course.  I  spent a summer session at Stanford's Marine  Institution, Hopkins Marine Station at Pacific Grove,  taking intensive course work in marine invertebrate  biology and icthyology.  What is icthyology?  Icthyology, the study of fishes.  Okay.  And what is biometrics?  Biometrics is statistics as applied to biological  problems.  Did you --  Statistical analysis.  1  THE  COURT  2  MR.  GRANT  3  THE  COURT  4  MR.  GRANT  5  6  7  8  9  10  THE  REGIS  11  12  EXAMINATI  13  Q  14  A  15  Q  16  17  A  18  Q  19  20  A  21  Q  22  23  A  24  Q  25  A  26  Q  27  28  29  30  A  31  32  33  34  35  36  37  38  39  40  41  Q  42  A  43  Q  44  A  45  46  Q  47  A 13753  M.R. Morrell (for Plaintiffs)  In chief on qualifications  by Mr. Grant  1 Q   Did you use statistical analysis with your subsequent  2 work with the Gitksan and Wet'suwet'en?  3 A   Yes.  In analysing harvest, monitoring data in  4 particular, but in many other ways.  5 Q   And did you take any courses at -- I'm sorry -- at the  6 University of Washington?  It's not reflected here,  7 but if I may go back to the Stanford degree -- Yes?  8 A   It seems to me that in Canada there is a distinction  9 drawn between a Bachelor of Science and a Bachelor of  10 Arts that may or may not be drawn by Stanford now.  At  11 the time that I was attending Stanford all degrees in  12 biology were Bachelor of Art degrees.  It doesn't  13 suggest that it's anything less than anything  14 different from a Bachelor of Science degree in a  15 Canadian university.  16 Q   What did you do at Monterey at the Marine Station at  17 Pacific Grove; that's at Monterey?  18 A   Pacific Grove, right adjacent to Monterey.  19 Q   Yes?  20 A   Normally the institution is a research and -- research  21 facility with permanent staff and professors and  22 graduate students.  In the summertime they give  23 advanced undergraduate courses, at which time regular  24 students from Stanford, as well as people, many of  25 them teachers from outside the system, come to do  26 these summer courses.  The summer courses consist of  27 intense field, laboratory and lecture courses in the  28 subject matter of the course.  What I did when I was  29 there was spend most of my waking hours at the -- at  30 the station or in the field collecting, making  31 observations of marine life, doing lab work, listening  32 to lectures regarding both marine invertebrates of the  33 area and fishes.  34 Q   And you took a course at the University of Washington,  35 or a series of courses there subsequently?  36 A   Yeah.  After I received my -- there was some  37 intervening years in there when I was in Chile in the  38 Marine Corps.  I was there for three and a half years.  39 On my return I did a small amount of work remaining  40 from my undergraduate degree at Stanford, applied for  41 graduate work at University of British Columbia and  42 University of Washington in fisheries.  At the  43 university I was accepted at both places.  I couldn't  44 begin work, it was not possible to begin work at  45 U.B.C. until September.  I finished my degree at  46 Stanford in approximately March 1968, and University  47 of Washington is on the quarter system, as well as 13754  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  M.R. Morrell (for Plaintiffs)  In chief on qualifications  by Mr. Grant  Stanford, so I did the spring quarter at the  University of Washington in preparation for enrollment  in their graduate programme at the School of  Fisheries.  My intention was not only to use the time  but also to get a taste of that institution.  And  during the time that I was there I also made trips to  U.B.C, and ultimately decided to attend U.B.C.  So  while I was spending that one quarter in University of  Washington, I did course work in fisheries biology, a  graduate course in fisheries biology, an advanced  undergraduate course in biometrics, another statistics  course.  I can't immediately recall the other course  work I did, there were a couple of courses I did.  Q   Did you take courses under Dr. Chapman at the  University of Washington?  A   Yes.  Q   Who was he?  A   He is a statistician, well known in fisheries circles.  His major published work has to do with the management  of fur seal populations in the North Pacific and the  statistics involved in that.  Can we take the morning break, Mr. Grant?  Yes, certainly.  Thank you.  THE COURT  MR. GRANT  THE COURT  THE REGISTRAR:  Order in court.  (PROCEEDINGS ADJOURNED AT 11:15)  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  Graham D. Parker  Official Reporter  United Reporting Service Ltd. 13755  M. R. Morrell (for Plaintiffs)  In chief on qualifications  by Mr. Grant  1 (PROCEEDINGS RECONVENED PURSUANT TO ADJOURNMENT)  2  3 THE REGISTRAR: Order in court.  4 THE COURT:  Grant.  5 MR. GRANT:  6 Q   Thank you.  I believe when we left at the break you  7 were talking about transferring to U.B.C. where you  8 did your Masters of Science in Zoology at the  9 Institute of Animal Resource Ecology?  10 A   That's right.  11 MR. GRANT:   And why did you make the decision to go to U.B.C.  12 to the Institute of Animal Resource Ecology as opposed  13 to the University of Washington?  14 MR. GOLDIE:  I'll concede that that was the right decision.  15 THE WITNESS: Shall I answer the question or —  16 MR. GRANT:  Go ahead.  Mr. Goldie's just trying to get a  17 presumption of fact here.  18 MR. GOLDIE:  He's about to rebut it.  19 MR. GRANT:  20 Q   I'll save that for the more important ones.  21 A   I put them both on my short list because they were  22 institutions with good reputations in teaching  23 fisheries science.  Many of the people working for  24 fisheries agencies of both the United States and  25 Canada have been to one or the other of those.  I made  26 my choice between them on the basis of my personal  27 experience at University of Washington, my experience  28 of University of British Columbia on visiting it,  29 seeing the library, speaking to people at the  30 institute, and also on advice that I received from  31 people working in the field.  I recall that Dr. Sette  32 with whom I worked at the U.S. Fish and Wildlife  33 Service --  34 Q   How do you spell that?  35 A   S-e-t-t-e.  -- suggested that, in a very diplomatic  36 way, that in his view University of B.C. expected more  37 of its graduate students than University of  38 Washington.  39 Q   Now, the Institute of Animal Resource Ecology at  40 U.B.C, that was -- at the time that you went there  41 and may still be -- was a semi-autonomous unit within  42 the Department of Zoology; is that right?  43 A   That's right.  The exact administrative arrangements  44 I'm not clear about.  Many of the professors of the  45 institute also held positions in the Department of  46 Zoology.  47 Q   And Peter Larkin was the head of it at that time? 13756  M. R. Morrell (for Plaintiffs)  In chief on qualifications  by Mr. Grant  1 A  When I got there Dr. Larkin, Dr. Peter Larkin, who's  2 now the Dean of Graduate Studies at U.B.C, was the  3 head of the Institute of Animal Resource Ecology.  If  4 I can backtrack a bit in history, it was originally  5 established as the Institute of Fisheries under the  6 directorship of Norman J. Wilimovsky, who was my  7 research supervisor in my time there.  Its focus then  8 was explicitly fishery biology, which is an applied  9 branch of ecology, population biology.  At some time  10 shortly before my arrival there, the -- a number of  11 members of the institute wanted to broaden its scope  12 somewhat to include other aspects of applied  13 population biology.  That was a trend that continued  14 through the time that I was there.  Many of the staff  15 are best known as fishery scientists.  That would  16 certainly be Dr. Wilimovsky, Dr. Larkin, Dr. Carl  17 Walters, who joined the institute during my time  18 there, Dr. J. D. McPhail.  However others, notably I  19 guess Dr. C. S. Holling, who was director of the  20 institute subsequent to Dr. Larkin's term, Dr. Holling  21 sort of epitomizes another element within the  22 institute, favouring a broader view of population  23 biology, population ecology.  His interest was -- he  24 started as a forest entomologist, another kind of  25 applied ecologist, acquired lots of experience in  26 mathematical modelling and became interested in human  27 ecology and was one of the spokespeople for a  28 broadening of the scope of the institute of bringing  29 in of economists, other social scientists, to try to  30 apply the techniques of population biology developed  31 in studies of animal populations to human populations,  32 and thereby crossing some academic boundaries and  33 widening the scope of the institute into the social  34 sciences.  35 Q   Was that occurring while you were doing your graduate  36 work there?  37 A   That's right.  38 Q   Now, did you take any courses while at U.B.C. in  39 economics --  40 A   That's right.  41 Q   -- that related to your subsequent work?  42 A   Yes.  In my -- I did -- the requirements of the  43 Masters Science degree from the institute involved  44 course work and production of a thesis.  I did I  45 believe all my course work in my first year there, and  46 courses included fisheries biology -- no, I did an  47 ichthyology course there, fisheries biology, a 13757  M. R. Morrell (for Plaintiffs)  In chief on qualifications  by Mr. Grant  1 graduate ecology seminar, and also in my first year I  2 did a fourth year undergraduate course in the  3 economics department in resource ecology. In my second  4 year I did a graduate ichthyology course in the  5 institute.  6 Q   Now, what do you -- there's two terms I'd like you to  7 explain, one that you said that Dr. Holling was  8 involved in, and that was human ecology, what do you  9 mean by human ecology?  What is that?  10 A   I gave a start on that definition earlier.  I can  11 repeat that, and perhaps you want to ask questions  12 leading to an amplification of that.  It's an  13 application of the techniques and concepts developed  14 in ecology of animal populations to human populations.  15 And that -- that in a sense develops a frontier  16 between biology and social sciences, so that  17 economics, perhaps sociology, psychology,  18 anthropology, are brought to bear on problems having  19 to do with human populations and their behaviour, as  20 animal populations.  21 Q   You then mention an economics course, and I think if I  22 have my note right it was in resource ecology?  23 A   Resource economics.  24 Q   I'm sorry, resource economics.  What did that course  25 entail and what did you do in that course?  26 A   First I was required to do a crash directed reading  27 course in basic economic theory, and then the actual  28 course work of resource economics dealt with economic  29 aspects of resource management, forest management,  30 fishery management.  As I recall, those were the two  31 main areas from which examples were drawn, and the  32 focus was certainly -- the reason for that focus has  33 to do with the course taking place in British Columbia  34 I'm sure.  35 Q   Okay.  And that was a fourth year undergraduate  36 course?  37 A   That's right.  38 Q   And did you do papers in that course in -- with  39 respect to fisheries?  40 A   That's right.  41 Q   What was that on?  42 A  My term paper for that course was an analysis of the  43 federal government, I suppose at that time the  44 Department of Fisheries, in any case, the predecessor  45 of the present Department of Fisheries and Oceans',  46 policy of license limitation and its relation to --  47 license limitation as a response to problems lumped 13758  M. R. Morrell (for Plaintiffs)  In chief on qualifications  by Mr. Grant  1 under the heading of the common property problem in  2 fisheries management, and the problems associated with  3 fisheries and other resources that are considered in  4 some systems as being available to anyone with the  5 wherewithal to harvest them.  And that leads to  6 certain classic problems, which possibly we'll get  7 into later.  8 Q   And you made observations of that kind of problem  9 before you took this course while you were in Chile,  10 for example?  11 A   Oh, yes, common property problems are endemic to many  12 fisheries throughout the world.  13 Q   I'll come back to that point and you can explain it.  14 You did a Masters thesis that you've -- at U.B.C. on  15 "Microcosm experiments with laboratory populations of  16 guppies and their implication for fisheries  17 management", and I'm reading from your curriculum  18 vitae.  Can you explain what that thesis was about?  19 A   Okay.  Incidentally, that's the topic, not the title  20 of the thesis.  21 Q   Right.  22 A   I don't recall the title, but it went more  23 specifically to the subject matter.  It was a study of  24 reproductive response of female guppies to competition  25 with other guppies for food or to food stress you  26 could say.  What I was studying was a phenomenon that  27 had been observed by others in wild and laboratory  28 populations wherein a population of organisms  29 effectively adopts a different strategy of  30 apportionment of the energy that they dedicate to  31 reproduction, in response to changing conditions of  32 competition or population density.  33 What I found was that female guppies that were  34 stressed for food, as would happen in a high  35 population situation, produced fewer but larger young  36 than female guppies raised in a more favourable  37 environment which would simulate low population  38 density, low competition, generally good -- good  39 conditions from the point of view of the population  40 members.  Under the lower population, better  41 conditions, the guppies produced more numerous but  42 smaller young with the same amount of effort; all  43 other things being equal.  44 Q   Okay.  45 A   The application of that to fisheries management is  46 that one of the fundamental concepts of fishery  47 biology and indeed population biology in general, is 13759  M. R. Morrell (for Plaintiffs)  In chief on qualifications  by Mr. Grant  1 that many of the characteristics of populations vary  2 according to the density of populations, in effect,  3 the size of the populations, and this variability  4 happens in such a way that populations tend towards  5 stable numbers.  In other words, as in the example of  6 reproductive rate which is specifically what I was  7 looking at, at high population levels reproductive  8 rates tend to drop.  As population is lowered,  9 reproductive rates increase.  In other words, a  10 reproductive rate responds to changes in density, as  11 if -- so as to make the population tend towards a  12 stable equilibrium position.  13 The importance of this for fisheries biology is  14 that as you reduce a population of fish by harvesting  15 it, you can expect the reproductive rate of that  16 population to increase in the same way that the  17 guppies produced more numerous young at -- under  18 conditions of lower competition, smaller populations.  19 Since lower populations reproduce at a higher rate,  20 they produce more young in excess of the requirements  21 to maintain the population stable at that level than  22 they would at a higher population level, and the  23 result of that is that there's a higher sustainable  24 yield at a lower population density.  It appears  25 paradoxical perhaps at first sight.  2 6 Q   Just a moment.  27 A   I'd like to make one more comment to perhaps clarify  28 that apparent paradox.  29 Q   Yes.  30 A  A definition of sustainable yield would be the yield  31 that that can be taken from a population without  32 causing a long term change in population size.  You  33 take a harvest, clearly that reduces the population in  34 the short-term, but the population by reproduction  35 quickly replaces that difference, and so that yield is  36 available to be taken in the next unit of time, the  37 next year or the next generation.  38 Q   And when you're talking about a lower competition  39 you're talking about on, for example, with salmon, the  4 0 spawning grounds, lower competition amongst the  41 species, not a competition of harvesters?  42 A   No.  43 Q   Yes.  Now, this is demonstrated -- is this  44 demonstrated by standard -- a standard graphic  45 analysis?  46 A   Sure.  At the centre of fisheries management theory is  47 this idea that lower populations reproduce at a higher 13760  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. GRANT:  THE COURT  MR. GRANT  M. R. Morrell (for Plaintiffs)  In chief on qualifications  by Mr. Grant  rate than higher populations.  There are many  mathematical representations of this that underly  population analysis to determine the proper rate of  harvest, or the association among a given rate of  harvest, a given population size, and a given  sustainable yield.  One such model is one associated  with the name of W. E. Ricker who has worked for the  Fisheries Research Board of Canada and later the  Department of Fisheries and Oceans -- all the same  institution, but changing names -- for many many  years.  He's presented many papers in the -- in this  general field as in others.  The general field is  called stock and recruitment analysis, and I've  presented an example of that in one of the appendices  of my opinion report, appendix 4 I believe.  Okay.  Just a moment.  My lord, just so that the  reference can be referred to, and I will be asking to  reserve the next number for this, Volume 2 of the  Morrell document book consists --  Tab 2?  Volume 2, which I'm just going to tender, consists  of the January 31st, '87 Morrell opinion, and together  with that the six appendices.  And I'm not -- I just  want to refer the witness to this Ricker curve in  appendix 4, which is at tab 5.  And my friends have  got all of these now, so I did not -- they were  already delivered to my friends, so I haven't  reproduced them needlessly once again, but that's what  it consists of.  Okay.  I'd ask that the next number be reserved for it, and  it will be -- it is Volume 2 of the Morrell document  book, but it is the Morrell opinion together with six  appendices.  Now, I'd ask --  So that's 972 will be the —  THE REGISTRAR: The book, and then the tabs can be dashed.  MR. GRANT:  Q   I'd ask if you could refer to appendix 4, and because  the opinion is at tab 1, my lord, appendix 4 is  actually at tab 5. And what I'd like you to do, just  to assist in your explanation to his lordship what  you're referring to, is just to refer to the graph and  explain -- I think it's at A4.1 after page 3; is that  right?  Okay.  Is that the right table in that?  Yes, that's the basic model.  THE COURT  MR. GRANT  THE COURT:  A  Q  A 13761  M. R. Morrell (for Plaintiffs)  In chief on qualifications  by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR. GRANT  THE COURT  MR. GRANT  THE COURT  MR. GRANT  Q  You have that?  The Ricker stock recruit model.  Whereabouts?  It's right after page 3, my lord, and it's  sideways --  Yes, I have it.  Thank you.  Ricker stock recruit model.  There is a series of  tables, but this is the first one.  Can you just  explain for his lordship what that is about or  represents?  This is one of the models that Ricker  uses and is accepted in fisheries management?  A   That's right.  The reference is included in the  appendix here.  Along the horizontal axis -- along the  horizontal axis is represented the size of a  population of spawners.  I'll talk about this in terms  of salmon biology.  It could apply to any sort of fish  population.  The units are arbitrary.  On the vertical  axis is indicated the mature progeny that result from  the spawning of the spawner population.  The  relationship between the size of the spawning  population on the horizontal axis and their ultimate  mature returning progeny is indicated by the broken  line that goes in a concave downwards curve.  The  solid line running at a 45-degree angle, it's not  actually in this case a 45-degree angle, but the solid  line running at an angle rising to the right across  the graph, is simply a reference point plotted such  that one unit on the horizontal axis corresponds to  one unit on the vertical axis on that line.  In other  words that is the relationship between spawning  population and returning progeny that ensures that the  spawning population is just replacing itself.  THE COURT:  The mature progeny is mature returning progeny is  it?  THE WITNESS:   That's right.  The next generation of spawners  before fisheries take place.  THE COURT:  How do you ever know that?  THE WITNESS:   Pardon me?  THE COURT: How do you ever know what the result is before  fisheries take place, or are you just --  THE WITNESS:   It's often very difficult to measure that in  practise.  THE COURT:  Is this a projection?  THE WITNESS:   It's possible to collect data on it.  The ideal  situation would be a completely enclosed population,  as in a population of a lake species, where you can  measure not only -- you can estimate not only the 13762  M. R. Morrell (for Plaintiffs)  In chief on qualifications  by Mr. Grant  1 spawning population, but also by keeping catch records  2 you can -- you can measure the part of the population  3 that is taken as harvest.  4 THE COURT:  I see.  5 THE WITNESS:   In a salmon population it's rather more  6 difficult, but attempts have been made to do it.  7 There has been one done on the Skeena fisheries and  8 there's a reference to that in one of my reports here.  9 THE COURT:  All right.  10 THE WITNESS:   The exercise in general is to identify those  11 returning progeny that are taken in the fisheries, and  12 there are various techniques for doing this.  The  13 nature of the relationship though is clear on the  14 basis of theory.  There are several points on the  15 curve that you know to be true a priori.  Notably at  16 the beginning of the curve when there's zero spawners,  17 you know you have zero mature progeny.  It's also  18 intuitively obvious that as the numbers of spawners  19 goes up, the number of progeny increases, and it is  20 further confirmed by experience and observation of the  21 real world that populations do not expand indefinitely  22 and, therefore, as the number of spawners increases,  23 at some point the numbers of progeny reproduced per  24 spawning adult must decrease.  And so you know that in  25 a -- in general, the curve is going to have this  2 6 concave downwards form.  27 And if we know those three things, which are  28 reasonable assumptions, then we can -- then we can  29 postulate that there must be an equilibrium level of  30 population represented by a spawner population of 1.0  31 towards the right of the horizontal axis at which the  32 spawning population just replaces itself.  At smaller  33 populations, the spawning population produces a total  34 return of progeny that is considerably in excess of  35 the spawning population, and that difference  36 between -- represented graphically here, between the  37 replacement line and the dotted line, is what's called  38 the harvestable surplus or the sustainable yield.  3 9 MR. GRANT:  4 0 Q   Go ahead.  41 A   Okay.  And to repeat the definition of that, that  42 yield can be taken, and by taking that harvest you  43 reduce the relatively large returning progeny  44 population to a level equivalent to the parent  45 spawning population, and by definition then you have a  46 sustainable yield.  47 That's represented in another way on the next page 13763  M. R. Morrell (for Plaintiffs)  In chief on qualifications  by Mr. Grant  1 where with the same horizontal axis what's graphed is  2 just that, sustainable yield, and you get a  3 dome-shaped curve.  The exact location and shape of  4 this curve, of course, is going to vary from  5 population to population in the real world, but by the  6 same line of reasoning that applies to the first  7 graph, we can argue a priori that the curve should  8 have a dome shape and that there should be a maximum  9 sustainable yield at some intermediate population  10 level less than the largish equilibrium population  11 that we would expect to be achieved if there were no  12 fishery at all.  And further reduction in the spawning  13 population below the point that produces the maximum  14 in this dome, would result in smaller sustainable  15 yields.  16 Q   Okay.  What I'd like to do is to move you from that --  17 A   Okay.  18 Q   -- to another concept which is alluded to so far this  19 morning, and that is three terms.  When I introduced  20 your qualifications, I introduced you as a fisheries  21 scientist.  When you talk about your thesis topic,  22 which you've just explained, and the Ricker curve, you  23 talk about fisheries management.  24 A   Okay.  25 Q   And you've also alluded to fisheries biology.  Can you  26 explain those terms or their interconnection, if any?  27 What you mean by those terms?  28 A   List the terms for me again, please?  29 Q   Fisheries management, fisheries biology, and fisheries  30 science?  31 A   Okay.  They overlap.  Let's say fishery science is the  32 broadest, and I would define that as the study of fish  33 populations and the humans that harvest them. I think  34 I'd leave it simple as that.  Fisheries management  35 then would be the body of knowledge associated with  36 setting policy regulations otherwise manipulating both  37 the fish populations and the harvesters in an effort  38 to achieve a socially desirable result.  Fisheries  39 biology taken literally could be seen to be a study of  40 the fish populations -- well, not even that.  Let me  41 complete that thought.  Could be taken literally to be  42 just a study of the fish populations, except for the  43 term fishery which implies the interaction between the  44 human and the fish populations.  So, as I say, the  45 three terms overlap a good deal and are used to some  46 degree interchangeably.  They certainly all relate to  47 the same body of knowledge. 13764  M. R. Morrell (for Plaintiffs)  In chief on qualifications  by Mr. Grant  1 Q   Now, in the course of study of any of those three, or  2 let us say fisheries science, does that involve, as a  3 person with your background, or fisheries manager let  4 us say -- I'm sorry.  Does the study of fisheries  5 science involve the study of the humans who harvest  6 the fishery or utilize the fishery?  7 A   Yes.  8 Q   Okay.  Now, in the context of fisheries managers, do  9 they -- are they involved in the study of the  10 phenomenon of the harvesters as well as the fish  11 stocks?  12 A   Certainly.  13 Q   Okay.  14 A  As I mentioned in the definition, a fisheries manager  15 is attempting to influence both the fish populations  16 and the harvesters so as to achieve a desired result  17 at the simplest level having to do with producing a  18 desired mix of, in a given year, of harvest and a  19 residual unharvested population to produce future  20 harvests.  21 Q   Okay.  Now, I'd like to, having had that introduction  22 of those concepts, I'd like to go to your relevant  23 work experience from your curriculum vitae, and you  24 start out -- the first relevant work experience you  25 refer to is a fisheries technician with the California  26 Department of Fish and Game involving field studies of  27 marine sport fish between 1960 and 1964.  This was  28 work you did while you were at Stanford; is that  29 right?  30 A   That's right.  31 Q   Now, can you explain what work you did there that was  32 relevant to your subsequent work with the Gitksan and  33 Wet'suwet'en and what experience you've had?  34 A   Okay.  I was working for the California Department of  35 Fish and Game on a long-term study of sport fisheries,  36 marine sport fisheries.  My work on that project  37 involved travelling to the coast, sampling catches of  38 sport fishermen by various methods, travelling to the  39 places where people fished from the shore or from  40 docks, and interviewing fishermen making various  41 measurements of their catch identifying the catch,  42 weighing it, et cetera.  I also rode sport charter  43 boats for a twofold purpose.  In part I was capturing  44 and tagging the same fish that they were -- that they  45 were fishing for, and also in the course of that I  46 would sample their catches, make the same sorts of  47 measurements that I did in the shore sampling, and the 13765  M. R. Morrell (for Plaintiffs)  In chief on qualifications  by Mr. Grant  other sort of work I did would be to wait at fishing  docks where sport fishermen landed with their catches,  meet the sport fishermen, obtain their permission to  view their catch, identify it, and make the  measurements that I had to make.  Okay.  That's the field data collection part of it.  In  addition, I did work involving compilation of data --  Okay.  I'll come to that in a moment.  Okay.  Okay.  Now, in the course of your field data collection, did  you collect data as to fishers' strategies?  I collected data on fishing effort, that is, the  locations which they fished, the amount of time they  spent fishing, the sort of gear they were using.  That's the data collection aspect.  The relevance of  those data was to assist in estimation of the total  catch, and also particular -- and also from those data  one could make inferences -- from those data and  related information that wasn't collected as data, but  that came as a result of associating with the  fishermen and being in the field, to make inferences  regarding the strategy of the fishers.  For example, in the charter boat fishery there  were trade-offs between distance travelled, cost to  the operator, what they charged the people who were  paying for the charter, and the return that they could  expect, the catch that they could expect.  In general,  more distant grounds, cost more to get to, both to the  operators and to the fishermen, and produce better  catches.  Other locations would be associated with  catches of different species, for example.  Okay.  Now, that aspect of the data, does that have  anything to do with fisheries science?  Certainly.  Can you explain it?  Okay.  The —  :  Mr. Grant, I'm sorry, but I'm not sure where this is  going, but is this evidence preliminary to a  discussion of the current fishery policies of the  Department of Oceans and Fisheries or something like  that?  Well, there's --  I don't think I should hear it if it is.  This, of course, is with respect to the California  Fish and Game Branch.  Well, I know, but I assume that it's got some  1  2  3  4  5  6  Q  7  A  8  9  Q  10  A  11  Q  12  13  A  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  Q  34  35  A  36  Q  37  A  38  THE  COURT  39  40  41  42  43  MR.  GRANT  44  THE  COURT  45  MR.  GRANT  46  47  THE  COURT 13766  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. GRANT  THE COURT  MR. GRANT  THE COURT:  MR. GRANT:  M. R. Morrell (for Plaintiffs)  In chief on qualifications  by Mr. Grant  preliminary relevance to what we're going to get to.  Yes.  And —  This is what I would broach it on.  My lord,  there's --  I'm not here to pass on the policies of the  Department of Oceans and Fisheries.  And I -- and it is my position that the evidence of  this witness is not to give you -- to give you a  factual basis to pass on the policies of the  Department of Fisheries and Oceans, and that's where I  say that the -- the intent of this evidence is not to  do that, but this evidence here isn't even related to  that, my lord.  My friends have a couple of objections  that at least they've alluded to in correspondence or  referred to in correspondence, and there's another  that is unrelated, and that is this witness' research  with the Gitksan and the Wet'suwet'en in terms of the  Gitksan and Wet'suwet'en management of the fishery.  That evidence is relevant as to the very issues set  out in the statement of claim.  Well, I think that I can understand the relevance of  that.  I don't want to jump into this particular body  of water prematurely, but it seems to me that we're a  long way afield.  Well, my lord, if I could just clarify for your  lordship further, I -- the challenge that my friends  make to that, as I understand it, is not a challenge  of relevance, but they're saying that this witness is  not qualified to give opinions as to the  methodologies, as to the fisheries management or the  management of the fisheries by the Gitksan and  Wet'suwet'en, where this witness has obviously relied  upon, for example, interviewing techniques that he's  done or persons under his direction have done, and  this kind of thing.  And they're saying that their  objection is this witness is not an anthropologist.  And I'm not suggesting for a moment that this witness  is an anthropologist, but in the field of fisheries  science, I'm exploring what's recognized and accepted  in that field in terms of research methodology, and it  is more than counting fish.  And that's the focus of  this evidence, and it's not focused on the policies of  DFO.  That's the focus of this on qualifications  because I saw that, at least from the correspondence  from my friends, and what they have said thus far,  that that was one of their approaches, their challenge  THE COURT:  MR. GRANT: 13767  Discussion  1 to his qualifications and certain aspects of his  2 report.  3 THE COURT:  Well, all right.  I won't do more than I've done up  4 to now to alert you to my concern about the indication  5 that I see developing here, and I hope I'm wrong in  6 that.  I'll allow you to proceed, but soon we have to  7 come to the question of relevance of the evidence to  8 the issues in this case.  9 MR. MACAULAY:  My lord, I'm going to submit that the whole  10 report is dedicated to the proposition that DFO has  11 mismanaged the fishery and that it ought to be turned  12 over to the Gitksan and Wet'suwet'en.  That's what the  13 report is about.  And I have a reference on almost  14 every page of the report to that effect.  And that's  15 why I wanted to make my submission on relevance.  My  16 submission is mainly on relevance, not on  17 qualifications.  I may have some submissions on  18 qualifications.  19 THE COURT:  Well, I understand that, Mr. Macaulay.  20 MR. MACAULAY:  And your lordship has picked up right away on the  21 basis on which I make my submission.  22 THE COURT:  Well, I did it all the way from the coast of  23 California, Mr. Macaulay.  24 I'll allow you to proceed, Mr. Grant, keeping in  25 mind what I've said and what your friend has said.  26 MR. MACAULAY:   I don't say we're prejudiced by hearing this,  27 it's just that it's wasting time.  28 THE COURT:  Well, that may be. It seems to me, Mr. Grant, that  29 it would be perfectly competent for the witness, and I  30 know these things can't be packaged as tidily as I'm  31 suggesting, it would be perfectly competent for the  32 witness to be telling me what the Gitksan and the  33 Wet'suwet'en have done and either historically or in  34 the modern era of managing or contributing to the  35 management of the fishery, but it would not be  36 relevant for the witness to tell me all the wrong or  37 bad or questionable things that the Department of  38 Ocean and Fisheries have done.  That may be too  39 simplistic, but that's rather as I see the issues in  40 this case.  But I'll be glad to hear what you have to  41 say as the matter develops.  42 MR. GRANT:  Well, maybe Mr. Macaulay has changed his position,  43 and I'm the last to want to spend more time on  44 qualifications than necessary, but as of March 9th Mr.  45 Macaulay said, or through the voice -- yes, it was  46 signed on his behalf, that:  47 1376?  Discussion  1 "We will also object to those portions  2 of the report and the appendices which  3 purport to offer anthropological opinions."  4  5 And then he says, an example of the type of  6 statement that we object to is obtained at page 4:  7  8 "'Indian fishing has always been regulated by  9 customs and laws deeply imbedded in the  10 Indian cultural tradition deriving from  11 generations of experience of the  12 relationship between fish and people.'"  13  14 Now, what this witness -- this witness has studied  15 the Gitksan and Wet'suwet'en fishery.  He studied the  16 Gitksan and Wet'suwet'en management of the fishery  17 historically and in the present.  It's one of the  18 areas of his qualification.  If Mr. Macaulay is saying  19 that he does not object to that now, then I don't have  20 to pursue this area of qualification at all.  21 THE COURT:  Oh, I think he still says that that is beyond the —  22 well, no, I don't think he -- I'm not sure what his  23 position would be with respect to that.  He says now  24 that -- he says that it's not relevant, but he doesn't  25 say even now it goes to qualifications.  It's Mr.  26 Goldie who's concerned about qualifications.  27 MR. GOLDIE:  Well, to take the example that my friend is using,  2 8 we've had primary evidence on what the laws of the  29 Gitksan are.  We shouldn't hear it through the lips of  30 this witness.  He has no qualifications with respect  31 to the laws of the Gitksan or the customs of the  32 Gitksan.  We've -- I have a binder of references which  33 the lay witnesses, who are in a position to talk about  34 such things, have talked about them.  35 THE COURT:  Well, I think that we run the risk of misleading  36 ourselves when we start labelling things.  If you're  37 talking about the laws and the customs, he may not be  38 competent, but if you're talking about fishing  39 practises, he may be.  40 MR. GOLDIE: Well, I don't have any objection to him describing  41 what happens, but to attach to what he sees something  42 which has happened for millenia, is objectionable.  43 THE COURT:  Well, this may be another example of the different  44 solitudes that we're concerned with.  What I might  45 call practises may amount in Gitksan terminology to  46 law or custom.  They may be the same thing.  47 MR. GOLDIE: They may well be, but that has been described by 13769  Discussion  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  witnesses who have asserted "We are the people who  obey those laws."  THE COURT:  I see we have a problem, but let's carry on.  MR. MACAULAY:  Before we carry on, my lord, I think I'm entitled  to quote from a letter that my friend quoted from  partway through.  I begin my letter by saying:  "Specifically we object to those portions of  the report and the appendices which  challenge the existence of Canada's  jurisdiction over fisheries and criticize  the management policies of the Department of  Fisheries and Oceans."  And then I refer in my quote to your lordship's  reasons for judgment of February 18th, 1988.  And then  I go on at the second page of the letter, half-way  down the second page, to deal with the matters that  would come properly under the heading of  qualifications.  I don't see how that involves a  change of position. That's my letter of March 9, 1989.  :  Yes.  Well, there were two objections, and my  friend's made clear the first one he's standing on.  He made that very clear this morning, and I understand  that.  :  Yes.  All right.  :  And, of course, I think I've directed you to this  very point of the position that I take which is that  the relevance of this, of any evidence about DFO  fisheries management, is the impact of that management  on the Gitksan and Wet'suwet'en fisheries.  That's  all; historically, and in the present.  In other  words, does it still exist?  Does it exist in a  modified form, does it not exist, are certainly issues  that your lordship is going to have to rule on, the  ownership and the jurisdiction or the management of  the fishery itself.  : Well —  :  But I think, as the evidence will come out, the  witness has done other work which bears on what my  friend says about alternatives, but that's not --  :  Well, let me just lay on you a concern I have.  Let  us assume that the impact is such that the Gitksan and  Wet'suwet'en are all starving, or that they've had to  completely change their diet from a fish-based economy  to something quite different.  How would that affect  the question of ownership and jurisdiction?  MR. GRANT  THE COURT  MR. GRANT  THE COURT  MR. GRANT  THE COURT 13770  Discussion  1 MR. GRANT:  Well, I'm now speaking from memory and was quoted  2 speaking off the top of my head earlier this morning  3 so I'm reluctant to do it, but, as I recall, there's  4 an issue of "abandonment", for example, raised by the  5 defendants, and the question of the importance of the  6 fishery today to the Gitksan and Wet'suwet'en  7 certainly is evidence of the continued operation of  8 their fishery.  It's not -- it's not the only  9 evidence, and I'm certainly not suggesting it would  10 be, but that evidence would be relevant for your  11 lordship in concluding whether the Gitksan and  12 Wet'suwet'en fishery and the ownership and operation  13 of that fishery still exists.  14 THE COURT:  Well, you see, I have abundant evidence, I guess I  15 shouldn't call anything abundant because it may turn  16 out to be insufficient, but at the moment I have a  17 body of evidence which -- from the last witness, who  18 said that when Mr. Brown arrived at Fort Babine in  19 1822 or 1823 he found fish economies, and I'd be  20 surprised if anyone challenges that then or now, but  21 let's accept for the moment that that was the case at  22 the time of contact.  2 3    MR. GRANT:  Yes.  24 THE COURT:  How does the mismanagement of the fishery, if such  25 it should be, from that time until this, affect the  26 question of ownership and jurisdiction?  27 MR. GRANT:  Well, that's where I say my friends are -- my  28 friends, of course, have framed that term, the  29 mismanagement or -- of the fishery.  It's not a  30 question here of the management or proper or improper  31 management of the fishery by DFO.  I'm not saying  32 that -- that's certainly not germane, and I concur  33 with your lordship on that.  What is germane is the  34 impact of the conduct of DFO on the Gitksan and  35 Wet'suwet'en, given that you have Dr. Ray saying that  36 in 19 -- at the time of contact, you have evidence now  37 that at the time of contact you had fish economies.  38 Do you have fish economies today?  Are those fish  39 economies -- are they within -- are they being  40 operated and managed by the Gitksan and the  41 Wet'suwet'en, or by the Department of Fisheries and  42 Oceans, or a mixture of both, and what are the rights  43 of the Gitksan and Wet'suwet'en to their fishery as of  44 the date of the issuance of the writ?  And in looking  45 at that, what is the scope of their management, and in  46 looking at the scope of their management, you can't --  47 we cannot take this in isolation, DFO's fisheries 13771  Discussion  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 COURT:  management.  DFO exists.  It's existed for some time,  and its impact on the fishery is there.  I mean, Mr.  Goldie's request this morning and his concern about  food fish permits accentuates the very issue that  clearly that that is an issue raised by the defendants  and it's an issue that I say we can deal with.  But  it's not -- ultimately at the end of the day you may  find or you may not find that fisheries managed  properly or improperly, and I concur that's not the  issue for this witness, but my friends I think are  misled because the appendix 1 is a report prepared by  Mr. Morrell which he was going to refer to on the  Gitksan and Wet'suwet'en fishery in the Skeena River  system in which he does look at alternatives, and that  the mandate of that report was different than the  mandate of his evidence, but there's material in that  report that he will be referring to and relying on  here.  All right.  Well, as I say, I'm not going to stop  you, Mr. Grant, not at the moment, but I'm becoming  uneasy about the magnitude of the problem that we have  with this witness which I think is much more severe  than we've had with others.  Let's see how we get  along.  Okay.  Do you think there's any point in diving back into  evidence or should we --  Maybe we can break, my lord.  We're going to be breaking in four minutes anyway.  I think we'll adjourn now.  THE REGISTRAR: Order in court. This court will adjourn until  two.  (PROCEEDINGS ADJOURNED FOR LUNCHEON RECESS)  I hereby certify the foregoing to  be a true and accurate transcript  of the proceedings herein to the  best of my skill and ability.  Tanita S. French  Official Reporter  MR. GRANT  THE COURT  MR. GRANT  THE COURT 13772  Discussion  1  2  3  4  5  6 (PROCEEDINGS RESUMED AT 2:00)  7  8 THE REGISTRAR:  Order in court.  9 THE COURT:  Mr. Grant.  10 MR. GRANT:  11 Q   Thank you.  Just to bring us up to where we are, my  12 lord, just regarding this work with where we left off,  13 Mr. Morrell, was the work with the California  14 Department of Fish and Game, and as I understand your  15 evidence in that work which -- that work spanned five  16 years?  17 A   Right.  18 Q   And it -- included in that work you had contact with  19 fishermen and interviewed fishermen?  20 A   That's right.  21 MR. GOLDIE:  I think he said sports fishermen.  22 MR. GRANT:  23 Q   Yes.  It was sports fishermen that was involved in  24 that study, yes?  25 A   Right.  26 Q   And you were involved in catch and data collection?  27 A   That's right.  28 Q   You were involved in the tabulation of data?  29 A   Yes.  30 Q   And you were involved in analysis of total catch  31 estimates?  32 A   I was involved in some steps of that process.  33 Q   Yes, okay.  And during the course of that work with  34 the sports fishermen did you learn about methodology  35 of approaching sports fishermen when you were doing  36 that type of data gathering?  37 A   It was one of the key things I learned about in the  38 course of that work.  I was wearing something of a  39 uniform with a shoulder patch identifying me as  40 representative of California Department of Fish and  41 Game, and that to most fishermen means game warden,  42 and so their initial response when I show up is "Maybe  43 I've done something wrong, I'm being investigated",  44 and so my initial task was to reassure them that I was  45 collecting data on their catch, I was interested in a  46 description of what they were actually doing.  I  47 wasn't passing judgment on whether it was legal or 13773  M.R. Morrell (for Plaintiffs)  In chief on qualifications  by Mr. Grant  1 illegal, but I was collecting research data, and that  2 what I was interested in was the actuality of what  3 they were doing and that I was not threatening them in  4 any way.  5 Q   Now, I would like to move to the second relevant work  6 experience.  You were a fishery technician with the  7 U.S. Fish and Wildlife Service of the Bureau of  8 Commercial Fisheries.  And in that work you were  9 involved in analyses of historical catch, among other  10 things; is that right?  11 A   That's right.  12 Q   And was this involving what types of -- you were  13 involved with the commercial fishery in this work?  14 A   That's right.  15 MR. GRANT:  Can you just summarize the relevant aspects of that  16 work and why you say that's relevant to your  17 subsequent research?  18 MR. GOLDIE:  Perhaps, my lord, when my friend says "relevant to  19 your subsequent research", I realize he's trying to be  20 accommodating, but I think the witness should just  21 tell us what he did rather than endeavouring to pass a  22 judgment on what is relevant or what isn't relevant.  23 MR. GRANT:  Well, this is under the heading on this Curriculum  24 Vitae of "Relevant work experience".  His Curriculum  25 Vitae was prepared for this, he may have done many  26 things.  27 THE COURT:  All right.  I think we will have to take Mr.  28 Goldie's observation as a proper one, not for the  29 purpose of expediting the evidence, it will have to be  30 understood that you're not asking the witness to pass  31 on the rational relevance of anything, but merely  32 directing his attention to the subject matter of the  33 report.  34 MR. GRANT:  That's right, the work that is relevant to the  35 subject matter of his report.  3 6 THE COURT:  Yes.  37 A  Would you repeat the question for me, please.  3 8 MR. GRANT:  39 Q   Okay, I'll probably rephrase it.  Which -- can you  40 explain that work in the context of what you have  41 subsequently done in the preparation of the report for  42 this court, relevant experience you obtained?  43 A   Okay.  The setting is a small laboratory on the  44 Stanford campus of the U.S. Bureau of Commercial  45 Fisheries, an agency of the U.S. Federal Government.  46 Dr. O.E. Sette, S-E-T-T-E, quite a renowned fishery  47 scientist, was head of the lab, and in many ways the 13774  M.R. Morrell (for Plaintiffs)  In chief on qualifications  by Mr. Grant  1 lab was created to support him in his thinking, his  2 research.  The project of his that I was involved in  3 was an analysis of long-term catch records of the  4 Alaska herring fishery, the Alaska commercial herring  5 fishery from three separate areas, and he was tackling  6 the -- a classic problem in much of fisheries science  7 of trying to distinguish between actual abundance of a  8 fish population and its availability or catchability  9 to the fleet.  When you're dealing with catch  10 statistics the results of the interaction between the  11 fishers, their technical capability, the weather and  12 the abundance of the fish, abundance of fish is only  13 one of many factors that influences the level of  14 catch, and so he was developing an original analysis  15 to attempt to grapple with this problem.  I was the  16 person handling the data, the long data series from  17 three different places.  As I recall, the earliest  18 catch statistics were from 1919, and I was doing the  19 work in 1962, so we're talking maybe 40 years of catch  20 data.  21 Q   Um-hum.  And did you deal with that data from that  22 40-year time span as part of your work?  23 A   That was my job, to -- at that time computers were not  24 widely used in fishery research, they were used in  25 some quarters, and Dr. Sette's lab was beginning to  26 computerize some aspects of their work, but I was  27 doing many of the operations that today would be done  28 by a computer on a desk calculator.  I was doing  29 repetitive calculations with a great mass of data,  30 generating lots of paper and having large bookkeeping  31 and filing problems.  32 Q   Well, did you do similar work in your research of the  33 Gitksan and Wet'suwet'en fishery, albeit in different  34 ways?  35 A   There were certainly similarities in the volume of  36 data.  The gathering of data from disparate sources,  37 having to think about the nature of the problem, and  38 apply statistical and mathematical techniques that  39 were appropriate to the task at hand given the  40 limitations of the available data.  41 Q   Was this -- would this work you did there be part of  42 what's known as applied mathematics in terms of or  43 with respect to the statistical data?  44 A   Sure.  45 Q   I would like to go to the next work you did relating  46 to this area, and that is your work with the Peace  47 Corps in Chile, and you describe it as biological and 13775  M.R. Morrell (for Plaintiffs)  In chief on qualifications  by Mr. Grant  1 organizing work with fishing cooperatives, and that  2 was from 1964 until 1967.  Now, can you just explain  3 in brief to the court what you did when you were in  4 that work that has a bearing on your subsequent work  5 with the Gitksan and Wet'suwet'en?  6 A   The most important part of that job for the work we're  7 talking about here was the first two years when I  8 lived in a small coastal fishing village, well off of  9 the main highway, working with fishing people, living  10 in a remote area, operating in a commercial fishery,  11 but quite marginal to the main-stream economy and  12 society of the country.  They were in transition  13 between very low technology, a very low technology  14 approach to fishing, that is they -- until a few years  15 before my arrival they had not had motorized vessels,  16 they had not had synthetic twines and ropes, operated  17 with largely home-made fishing gear.  At the time that  18 I arrived they were in their second or third year of  19 using larger motorized vessels, fishing more gear,  20 they had capability of operating farther from their  21 home port in rough weather than they had before.  22 Q   What -- this fishery was a commercial fishery?  23 A   That's right.  24 Q   And these -- the people in this village that you were  25 working with and this fishing cooperative, were they  26 dealing with what is known in the fisheries parlance  27 as a common property fishery?  28 A   It was a common property fishery, as are most  29 fisheries of the world, I would say.  That is, no one  30 of the fishermen, no group of the fishermen had  31 anything like ownership rights to the fish until they  32 were captured, and the fish belonged to whoever could  33 capture them.  That leads to some very vexing problems  34 in terms of fisheries economics and also in terms of  35 fish population management.  36 Q   Just one moment, please.  Now, in terms of your work  37 with the people there, you said this was in a remote  38 area.  You've already described about your research  39 methods with the California Fish and Game branch with  40 the sports fishermen.  Did you develop, in terms of  41 communication with people in terms of your study of  42 what was going on, similar research methods in terms  43 of interview contact and this type of thing?  44 A   Um-hum.  I was originally assigned to that fishing  45 cooperative because of my background in fisheries.  I  46 don't think the Peace Corps really had a very clear  47 idea of what was required under the circumstances. 13776  M.R. Morrell (for Plaintiffs)  In chief on qualifications  by Mr. Grant  1 The problems that people were having did not relate a  2 great deal to management of the fishery.  Their  3 problems had much more to do with marketing and  4 dealing with the consequences of the common property  5 problem.  I, out of my own interest and because I was  6 living in the village and wanted to understand what  7 was going on, went fishing with the fishermen, paid  8 attention to how they fished, tried to understand why  9 they did what they did, made the decisions that they  10 were making.  My focus in that was the principal focus  11 of the cooperative, which was dealing with the  12 marketing problems that they were dealing with.  The  13 situation they were in before the cooperative was  14 that -- that they were -- they were forced to sell  15 their catch to the few people in the village that had  16 motorized vessels, and could take the catch a two-hour  17 trip up a river to the nearest road access.  It wasn't  18 practical for the fishermen to take it up the river  19 themselves, and so they sold in the village.  The  20 cooperative was an attempt to skip over the middle men  21 in the village with the motorized vessels by giving  22 the fishermen a way to market their fish directly  23 through the town called Baldevia(phonetics), which was  24 at the road.  25 Q   Now, from your observations and work there for two  26 years, were there any analogies that you drew from  27 that experience and from the situation those fishermen  28 were in in Chile and your observations of the Gitksan  29 and Wet'suwet'en fishery?  30 A   I got there at an opportune time to see the  31 development of the difficulties associated with the  32 common property problem.  The fishermen had, with  33 acquisition of motorized vessels and more efficient  34 fishing gear, increased their catching power a good  35 deal.  In the marketing situation that they were in  36 catching more fish didn't necessarily mean that they  37 made more money, because they were competing with each  38 other to sell to the few buyers.  So to a certain  39 extent the more they caught the lower the price was.  40 Also, they were having to make more money in order to  41 pay off their new vessels and gear.  A consequence of  42 that was that they ranged further afield, they put  43 more pressure on the stocks, they had to invest more  44 time, effort and money in making their catches.  It  45 was a classic tragedy of the common situation, that's  46 the short term for it.  That is, they -- each of --  47 each of the fishermen was competing with all of the 13777  M.R. Morrell (for Plaintiffs)  In chief on qualifications  by Mr. Grant  1 others to increase his share of a limited resource,  2 and the only way he could practically do that was to  3 catch as much as he could as fast as he could, even  4 though this didn't work at all in his long-term  5 interest in that it tended to deplete at least the  6 most accessible stocks, and even in the short term it  7 didn't work as well as it might in individual  8 fishermen's self-interest in that they were competing  9 with each other to market their catch.  10 Q   What was the analogy of that description you said with  11 the Gitksan and Wet'suwet'en, with your study of the  12 Gitksan and Wet'suwet'en and Skeena fishery?  13 A   Okay —  14 MR. GOLDIE:  Well, I object to that, my lord.  He was asked what  15 are the analogies.  He's described a series of events  16 when there is an analogy for your lordship to  17 describe.  18 THE COURT:  I lost what the specific question was to which the  19 objection was taken.  20 MR. GRANT:  Well, I had asked him what was the analogies between  21 what he learned there with respect to the Gitksan and  22 Wet'suwet'en, and of course I'm focusing here on  23 experience as part of his qualifications, my lord, and  24 the witness -- I do agree with Mr. Goldie, the witness  25 described a number of things that happened there.  Now  26 I'm trying -- I want to bring him back to that point  27 and say what analogy are you -- what -- and maybe I  28 framed the question not as good a way as I could, but  29 I want to know what the relationship -- how that  30 assisted him with respect to his work with the Gitksan  31 and Wet'suwet'en in preparing this opinion that's  32 before your lordship.  33 THE COURT:  Well, I'm — I must say, I have great difficulty  34 ruling on a matter of this kind.  It doesn't seem to  35 me to bear much relation to the issues in this case,  36 and it only would be justified as part of the  37 qualification of the witness, I suppose.  38 MR. GRANT:  That's all I'm going to.  And my lord, the reason I  39 asked the last question was because of what you have  40 just said, and I agree it's not obvious as to why  41 that -- how that would assist the witness with respect  42 to his work and preparation of this opinion.  If it  43 was obvious I wouldn't have asked the last question,  44 but I don't think it is obvious, and that's why I wish  45 the witness to --  46 THE COURT:  No.  It certainly isn't obvious.  I'm trying my best  47 to find a way in which I can say it's permissible.  At 13778  M.R. Morrell (for Plaintiffs)  In chief on qualifications  by Mr. Grant  1 the moment I'm stuck.  2 MR. GOLDIE:  There is no way, my lord.  The witness has given  3 the factual description of what he did.  4 THE COURT:  Yes.  5 MR. GOLDIE:  It's a matter of argument now as to whether there  6 is anything that he has stated which is applicable to  7 evidence which he is yet to give, but asking him to  8 state what the analogy is is precisely the -- it will  9 be precisely the outcome of any submission that's  10 made.  11 MR. GRANT:  Well, maybe I can rephrase the question, because I  12 think the analogy is where my friend is jumping -- is  13 finding --  14 THE COURT:  Thank you.  15 MR. GRANT:  16 Q   How did those observations that you have just  17 described in respect to your experience in your work  18 in Chile, how did they assist you in your -- as far as  19 your experience and background in respect of your  20 preparation in your research of the Gitksan and  21 Wet'suwet'en?  22 A   The existence of the cooperative, the organization of  23 the cooperative was an attempt on the part of the  24 fishermen to minimize the extent to which they were  25 competing with each other and willy-nilly be driven to  26 work against their own long-term self-interest.  The  27 non-Indian fisheries on Skeena stocks are common  28 property fisheries, as were the fisheries that I was  29 working with in Chile without the cooperative.  The  30 Gitksan and Wet'suwet'en systems contain many elements  31 within them that help avoid many of the problems  32 endemic in a common property situation.  33 Q   You describe in your Curriculum Vitae that you did  34 work as a teaching assistant in 1968 to 1970, and in  35 that work you taught a second-year course, biology  36 course for biology majors; is that right?  37 A   That's right.  38 Q   And in -- as part you were a laboratory instructor for  39 that course and you reviewed the primary biology work,  40 once again of course in preparation in teaching of  41 that course?  42 A   That's right.  That's a part-time job of the sort that  43 the university makes available to graduate students to  44 provide them with some money and provide the  45 undergraduates with some teaching assistance.  46 Q   Now, both your work with Dr. Krebs as a research  47 assistant in field studies of the Great Blue Heron, 13779  M.R. Morrell (for Plaintiffs)  In chief on qualifications  by Mr. Grant  1 and your work as a biologist with Templeton  2 Engineering involving field studies of waterfowl  3 reproduction and migration in the Mackenzie Delta gave  4 you further experience in terms of field work and data  5 collection, albeit not with fish, but with the birds?  6 A   That's right.  And the -- the Mackenzie Delta work  7 also involved analysis of field data and preparation  8 of the report, so it is getting me deeper into  9 exposing me to more steps in the process of conducting  10 a biological study.  11 Q   And then you did work as a biologist for the B.C.  12 Provincial Museum in 1974, and in this work you were  13 involved in an inventory of the birds in the Bulkley  14 Valley region, and was this your first direct contact  15 with the area or portion of the area under -- that you  16 subsequently studied for the Gitksan and Wet'suwet'en?  17 A   It was the first time I had been to the central  18 interior of B.C.  This work, as stated in the C.V.,  19 was centred on the Bulkley Valley region.  It extended  20 into the Kispiox Valley west on the Skeena as far as  21 Terrace, south and east into the Lakes District, east  22 to Babine Lake, covered much of the Wet'suwet'en and  23 the Gitksan country.  One aspect of this job -- well,  24 two aspects of it, in this case I was given a very  25 broad mandate by the Provincial Museum to go to the  26 field, design a study to survey the bird fauna of the  27 area, they gave me a truck and an assistant and I was  28 on my own for the summer collecting the data,  29 travelling the region, brought the data back, designed  30 and executed the computer analysis, and prepared the  31 information for write-up as part of a larger resource  32 inventory of the area.  33 Q   Um-hum?  34 A   In the course of this work, too, I had my first  35 personal contact with Wet'suwet'en people.  I met Roy  36 Morris at the -- at the Nadina River end of Francois  37 Lake, where he was on a beaver hunt.  He helped me get  38 my vehicle unstuck and also we chatted awhile, and he  39 showed me his net fishing in the lake and gave me some  40 of his catch.  That was the first time I had eaten  41 burbot or ling.  42 Q   Burbot?  43 A   Yes.  44 Q   Thank you.  And you observed him net fishing in the  45 lake?  46 A   I saw his net and I saw his catch.  47 Q   Yes.  And in 1975 you did work as a biologist for 13780  M.R. Morrell (for Plaintiffs)  In chief on qualifications  by Mr. Grant  1 L.G.L. Ltd., and this was with field studies in the  2 Beaufort Sea waterbird migration?  3 A   That's right.  4 Q   And on this occasion you were involved in the design,  5 execution, and analysis and reported with respect to  6 your field data?  7 A   That's right.  I was part of a five-person team  8 conducting a study on contract with Canadian Wildlife  9 Service as part of the larger Beaufort Sea study, and  10 it led to two of the publications in the publication  11 list.  12 Q   Just turn over to that, that's the next page.  Would  13 you just indicate, are those the first two?  14 A   The first two of which I am co-author.  15 Q   It's on page 3 of the C.V., my lord.  Then in 1977,  16 '78 you were involved with the biologist with the  17 Telkwa Foundation involved in environmental research  18 and education.  And once again here you did the  19 teaching of course in biology and environmental  20 courses?  21 A   I did a wide variety of things.  I wouldn't call any  22 of them courses; a lot of visits to schools, work with  23 other community organizations, everything fit under  24 the heading of environmental education.  I did many  25 different things, nature walks, guest lectures at  26 college courses, slide shows for highschools, a wide  27 variety of things.  28 Q   And then you did -- in '78-'79 you did work as a  29 biology instructor at Northwest College, including the  30 design and instruction of university level courses?  31 A   That's right.  I taught a first-year biology course at  32 the Smithers Campus of Northwest Community College,  33 which has its central base in Terrace.  34 Q   And then from 1979 until 1987 you worked for the  35 Gitksan and Wet'suwet'en Tribal Council as a  36 biologist, and you were involved in the design and  37 direction of investigation of Indian fisheries on the  38 Upper Skeena River?  39 A   That's right.  40 Q   And that study culminated in the 1985 Fish Management  41 Study report which is appendix 2 to your opinion  42 report; is that right?  43 A   I think it's appendix 1.  44 Q   Or appendix 1?  45 A   Otherwise, yes.  46 Q   Now, I would like to just turn you to volume 2 of your  47 document book, that is your opinion, and turn you to 13781  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  A  Q  A  Q  A  Q  A  Q  A  M.R. Morrell (for Plaintiffs)  In chief on qualifications  by Mr. Grant  tab 1, which is the opinion itself, page 2 and 3, and  I'm referring to this, my lord, as a short-cut with  respect to expansion on that last area of the  Curriculum Vitae.  On the top of page 2 you explain  what you did, and page 2 and 3 summarizes what you did  or were asked to do by the Tribal Council; is that  right?  It's at -- I'm sorry, it's at tab 1.  Oh, okay.  Tab 1, page 2?  Page 2.  Yes.  Now, and you were -- now, as part of this work in 1981  did you take -- were you involved in a training  programme which dealt with interview techniques?  Yes.  The spring of 1981.  Can you explain who taught that course and what it was  focused on and what you learned from it?  Okay.  I'll give a little bit of background on it.  That was when three Gitksan and Wet'suwet'en staff  joined the Fish Management Study, which at that point  had been underway for two years.  Um-hum?  Also at that time the Gitksan-Wet'suwet'en land claims  office was assembling a separate historical research  team, which also had -- was just beginning historical  interview field work, so the Tribal Council set up a  training course for the -- primarily for the Gitksan  and Wet'suwet'en staff of these two projects.  As  supervisor of one of these groups of people I attended  the course as well.  The course was four weeks long,  it involved a week of lectures, seminars by George  MacDonald from National Museum of Humanity, I guess  it's called now, in Ottawa.  He's an anthropologist,  Ethnologist, archaeologist, I believe.  Q   Yes, who else taught you?  A  Another week was taught by Dr. Harvey Feit from McGill  University, an anthropologist who has worked  extensively with the James Bay Cree.  THE COURT:  I'm having trouble with all this, Mr. Grant.  It's  interesting, but I just can't believe we need this  kind of detail to get on with this case.  MR. GRANT:  Well, my lord, the — that's why I raised the  question.  THE COURT:  Either the witness knows something about fisheries,  and if so he can give an opinion on fisheries, and no  doubt he knows something about fisheries, but the  details of the courses that he's taken, the courses  that he's given, who else gave courses seems to me 13782  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  M.R. Morrell (for Plaintiffs)  In chief on qualifications  by Mr. Grant  goes way beyond anything that's necessary.  MR. GRANT: Well, I wish I would -- all I am raising, my lord,  is evidence of why -- of the experience and training  the witnesses had with respect to this area.  THE COURT:  There's no end to the amount of evidence that could  be led on this sort of thing with most experts if it  was necessary, but it isn't found to be necessary.  MR. GRANT:  But -- well, that's why I raised the question, and I  didn't read all of Mr. Macaulay's letter, because I  understood quite clearly that his first objection he  was maintaining and made it very clear he was  maintaining.  The second objection is different.  The  second objection is that this witness' expertise  through interviewing of Gitksan and Wet'suwet'en  people with respect to the fisheries management system  should not be allowed in.  THE COURT:  Mr. Grant, if it takes the better part of a day to  qualify a witness, it almost demonstrates that there's  something wrong with the evidence.  Either this  witness can give some qualified evidence or he can't.  I just -- I'm sorry, but I just can't see what help it  is to know all these things that you have been telling  me for the last half hour.  MR. GRANT:  Well, my lord, it's the — as I say, it's only if  the witness is -- I mean we've faced this with other  witnesses as well, and at the beginning of  qualifications there is a broad attack on  qualifications, by the end of it the attack seems to  be minimized.  I would like nothing more than to spend  half an hour on qualifications of the witness, because  I would like to get into the substance of his  evidence, but given the discussion that was had this  morning, I submit that his experience and his training  with respect to interviewing techniques and what's  learned is important to lead if my friends are  objecting to that base of his --  THE COURT:  I think we'll come to that if they decide to  cross-examine, but -- and you can probably be entitled  to reexamine, but the way this is going I mean I think  it's almost as if we're interviewing the witness for a  job, and I'm sure he doesn't want a job.  I'm sorry,  I'm having real trouble with it.  If I could just have a moment.  Yes.  MR. GRANT  THE COURT  MR. GRANT  Q  Mr. Morrell, in fisheries science is interviewing part  of the methodology accepted in the field to study 13783  M.R. Morrell (for Plaintiffs)  In chief on qualifications  by Mr. Grant  1 fisheries science and fisheries management?  2 A   Certainly.  3 Q   In terms of your -- you have reviewed page 2 and 3 of  4 your summary report, you've had an opportunity to look  5 over those?  6 A   Yes.  7 Q   And that is a background as to what you did, albeit a  8 summary of what you did in the eight years that you  9 worked with the Gitksan and Wet'suwet'en?  10 A   That's right.  11 Q   Your fish management study, which is at appendix 1 of  12 volume 2, dealt with, amongst -- actually, I should  13 just refer his lordship to that, it's at tab 2, dealt  14 with in the introduction a summary of what -- this is  15 the first four pages of what you were -- the  16 background of that work?  17 A   That's right.  18 Q   And that work in the fish management study was,  19 amongst other things, to analyse an alternative to the  20 present fisheries management regime?  21 A   That's right.  22 Q   You've prepared subsequent to that this report?  23 A   Excuse me.  24 Q   Go ahead.  25 A  An alternative to the present fishing management  26 regime, that's what I'm picking up on.  The mandate  27 was to recommend a management regime for the Gitksan  28 and Wet'suwet'en fisheries based on Gitksan and  29 Wet'suwet'en management that could co-exist or  30 coordinate with the management by other agencies, the  31 Department of Fisheries and Oceans, for example, in  32 Alaska, and other agencies of other fisheries on  33 Skeena stocks.  34 Q   And as part of that research, in order to do that you  35 had to, as well as studying the fishery, that is the  36 fish runs, et cetera, and the impact of other  37 fisheries on those runs, you studied the Gitksan and  38 Wet'suwet'en management regime itself?  39 A   That's right.  As well as the management regimes  40 operating in other fisheries that affected the same  41 stocks.  So I also had to study the Department of  42 Fisheries and Oceans management regime.  43 Q   And that's reflected in the 1985 Fish Management  44 Study, which is in appendix 1 to your opinion report?  45 A   That's right.  46 Q   And in preparing -- and then subsequent to that you  47 prepared the opinion report, which is at tab 1 of 13784  M.R. Morrell (for Plaintiffs)  In chief on qualifications  by Mr. Grant  1 volume 2, that's the one that was done in January of  2 1987?  3 A   That's right.  4 Q   And that was prepared for evidence for this court?  5 A   That's right.  6 Q   Just going back to your Curriculum Vitae, under  7 "Expert Witness", it's correct that you've given  8 expert evidence on three occasions in the Provincial  9 Court of British Columbia, twice with respect to the  10 Skeena system and once with respect to the Fraser  11 River system; is that right?  12 A   That's right.  13 Q   And you've given evidence in the County Court of  14 British Columbia in 1980?  15 A   Yes.  16 Q   And that was all expert evidence?  17 A   That's right.  18 Q   And you're a member of the American Fisheries Society?  19 A   Yes.  20 Q   Now, just going to your publications; as well as the  21 first two publications, you were a co-author of the  22 Submission of the Gitksan and Wet'suwet'en to the  23 Royal Commission on Pacific Fisheries Policy known as  24 the Pearse Commission?  25 A   That's right.  26 Q   And the fourth item down on the publications is the  27 1985 Fish Management Study?  2 8 A   No.  29 Q   I'm sorry, that's a Submission to the House of Commons  30 Standing Committee that you prepared?  31 A   On Fisheries and Forestry, that's right.  32 Q   And you were co-author of that?  33 A   That's right.  34 Q   And the fifth item, I'm sorry, is appendix 1?  35 A   That's right.  36 Q   And as well as that you did a data report from -- in  37 1985, an update of part of the Fish Management Study?  38 A   It was another year of similar activities with  39 different staff monitoring the fishery for 1985, and  40 there was a separate report written for that.  41 Q   And you also did a presentation on co-management to a  42 group at the University of British Columbia?  43 A   That's right.  I was invited to do a paper to -- I  44 don't have the exact reference on the -- at the top of  45 my mind.  I can tell you approximately that it was a  46 conference on co-management organized by Evelyn  47 Pinkerton of the School of Planning at the University 13785  M.R. Morrell (for Plaintiffs)  In chief on qualifications  by Mr. Grant  1 of B.C.  It brought together professionals in social  2 sciences and in biology and other aspects of fisheries  3 management to discuss problems of fisheries  4 management.  I participated in a symposium on native  5 fisheries.  The title of my paper was something to the  6 effect of "The Struggle To Integrate State and Indian  7 Management in the Salmon Fisheries of the Skeena  8 River".  I can provide the exact reference.  The  9 publication arising out of that conference is now in  10 press.  It's going to be published by University of  11 B.C. Press, I believe.  12 Q   Now, if you, in studying a fishery management system,  13 whatever fisheries management system a fishery  14 scientist studies, what other areas of literature do  15 you review within your field, aside from fisheries?  I  16 mean is it legitimate within your field to study other  17 areas outside of your field of expertise in analysing  18 other fisheries management schemes?  19 A  As in any research endeavour, you go where the  20 information is.  I'm a little confused by the  21 question.  Literature or other sources relating to  22 management institutions, administrative structures,  23 behaviour, human behaviour that is.  24 Q   Do —  25 A  Management decision-making, all sorts of things are  26 relevant.  27 Q   Do fishery scientists refer to historical documents?  28 A   Yes.  29 Q   And that's accepted within your field?  30 A   Yes.  31 Q   Is there other areas that fishery scientists, in  32 studying fishery management regimes, other fields that  33 they look to in analysis of fishery management  34 systems?  35 A   Certainly.  It's - fisheries science is  36 interdisciplinary study in terms of traditional narrow  37 academic disciplines, and so you can operate in the  38 areas that other people might call psychology, or  39 anthropology, or economics, or history or planning, a  40 whole computer science, mathematics, statistics, a  41 whole series of fields are relevant, it just depends  42 on the job at hand.  43 Q   And did you go to any of those other fields in your  44 study?  45 A   Um-hum.  In terms of literature, there are  46 bibliographies associated with my various reports, and  47 they will include the sources that may be considered 13786  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  M.R. Morrell (for Plaintiffs)  In chief on qualifications  by Mr. Grant  primarily historical, primarily anthropological,  archival, mathematical, economic.  There are other  sources of information that are not literature that  are also relevant.  Q   Um-hum?  A  As, for example, the body of interviews with Gitksan  and Wet'suwet'en people that have been collected by  the Gitksan and Wet'suwet'en Tribal Council over the  years, interviews with officials of the Department of  Fisheries and Oceans, with the Provincial Fish and  Wildlife Branch, other people who are involved in  different aspects of the various fisheries and the  management of fish stocks in the area of interest.  Q   And did you go to all of those sources?  A   Yes.  Q   And is that an acceptable part of fisheries science?  A   Yes.  MR. GRANT:  Thank you.  Those are all my questions on  qualifications.  THE COURT:  Mr. Macaulay, you indicated you didn't have any  quarrel with the qualifications of the witness.  MR. MACAULAY:  I didn't say that, my lord.  My friend, Mr.  Grant, related the second part of my letter.  But my  main submission will concern relevance rather than  qualifications.  I think my friend, Mr. Goldie,  probably will deal with qualifications.  THE COURT:  All right.  MR. MACAULAY:  I may have something to add to that, but it's  relevance that I'm emphasizing.  THE COURT:  Are you content that Mr. Goldie should cross-examine  first then?  MR. MACAULAY:  Yes, my lord.  THE COURT:  Yes, all right, Mr. Goldie.  CROSS-EXAMINATION BY MR. GOLDIE:  Q   Mr. Morrell, just a few questions about some of the  answers you gave to Mr. Grant.  I think you told his  lordship that when you were at the Institute of Animal  Resource Ecology you gave a term paper dealing with  the policy of licence limitation and response to the  problem of common property?  A   That was a term paper in the course in resource  economics that I did, yes.  Q   Yes?  A   It wasn't part of the institute curriculum, it was  outside the institute.  Q   It was part of your qualification for your degree? 13787  M.R. Morrell (for Plaintiffs)  Cross-exam on qualifications  by Mr. Goldie  1 A   That's right.  It was accepted as course work towards  2 my degree.  3 Q   The licence limitation that you referred to, it is the  4 limitation with respect to ocean fisheries, licences  5 of boats and individuals engaging in ocean fisheries?  6 A   That's right.  7 Q   Yes.  8 A   Specifically the salmon fisheries of B.C.  9 Q   Yes.  Ocean, which are ocean fisheries so far as the  10 licensing of boats and limitations on licences is  11 concerned, is it not?  12 A   That's right.  13 Q   Yes.  14 A   Ocean and estuary, but that's a minor point.  15 Q   Yes.  Well, no, I accept your correction.  16 A   Um-hum.  17 Q   But what is the definition of an estuary?  18 A   The mouth of a river.  19 Q   Yes.  Where the tidal effect is felt, is it not?  20 A   Fair enough.  21 MR. GOLDIE:  Yes.  22 THE COURT:  How far up the Skeena does that extend?  23 A   To the vicinity of Terrace.  24 THE COURT:  Yes, all right.  25 MR. GOLDIE:  26 Q   Your Master's Degree at U.B.C. was in zoology, and I  27 take it was not a study of fisheries management?  28 A  My degrees from the Department of Zoology that has to  29 do with the institutional relations between the  30 Department of Zoology and the institution where I  31 worked.  The institute is in some sense part of the  32 Department of Zoology.  They don't give their own  33 degrees.  My thesis dealt with fishery management, it  34 was directed towards fishery management.  I worked  35 with a specialist in -- my research supervisor was a  36 specialist in fishery management and ichthyology.  37 Q  What is a guppy?  38 A  A guppy is a tropical fish, a small tropical fish.  39 The ones that I worked with are native to the island  40 of Trinidad in the Caribbean.  41 Q   Yes.  Your thesis, was not it a study of the  42 interaction of guppies with human beings, was it?  43 A   No.  44 Q   It was a laboratory study and the application of a  45 principal?  46 A   That's right.  The class of studies is called  47 microcosm studies where you create an environment in 13788  M.R. Morrell (for Plaintiffs)  Cross-exam on qualifications  by Mr. Goldie  1 the laboratory that is designed to simulate or mimic  2 aspects of the larger outside world.  3 Q   Yes.  And what you were seeking to simulate was food  4 stress?  5 A   Food stress and competition, the effects of high  6 population density on fish populations.  7 Q   Without regard to any particular area in the world, it  8 was just to create that condition?  9 A   That's right.  A theoretical problem.  10 Q   Right, I understand.  Now, you gave some evidence with  11 respect to the Ricker stock recruit model?  12 A   That's right.  13 Q   That was something which embodied a principal that you  14 were testing in your work for your thesis; is that not  15 correct?  16 A  My thesis work related to that.  17 Q   Yes?  18 A   The phenomenon of density dependent reproduction.  19 Q   And in the -- in these graphs which you showed to his  20 lordship, is that assumed -- is it assumed that the  21 food supply expands to meet the expanding population?  22 A   Not at all.  23 Q   Is that an assumption that is made?  24 A   Not at all.  The idea is that food or some other  25 resource or constellation of resource stays constant  26 as the population expands, and thus limits it.  27 Q   That was the thrust of my question, is that there is  28 an assumed constant at work in that relationship  29 depicted in the graph?  30 A  All right, yes.  31 Q   Now, you talked about your work experience in the --  32 in California.  I understand that that was primarily a  33 summer or part-time job?  34 A   Summer and part time during school.  35 Q   Yes, all right.  And that was under supervision?  36 A   That's right.  37 Q   And —  38 A   Excuse me.  The field work I did on my own, but I  39 reported to someone who suggested where I should do my  40 field work and gave me direction.  41 Q   When I say "under supervision", I mean that what you  42 went and collected by yourself you were asked to  43 collect by your supervisor?  44 A   That's right.  45 Q   Yes.  And you weren't telling the sports fishermen  46 what to do, you were simply observing what they did?  47 A   Exactly. 13789  M.R. Morrell (for Plaintiffs)  Cross-exam on qualifications  by Mr. Goldie  1 Q   Then in 1962, '63 you were a fish technician, and your  2 particular interest was in the analysis of historical  3 catch of the herring fishery of Alaska?  4 A   That's right.  5 Q   That is an ocean fishery?  6 A   That's right.  7 Q   And the research was directed towards the question of  8 catchability?  9 A  An attempt to distinguish between the technical term  10 is your class strength, actual abundance of different  11 ages of herring, to distinguish between that and their  12 availability to the fishery, trying to pull  13 information on both of those aspects out of catch  14 statistics.  15 Q   Apart from the experience that you gained in analysing  16 data, that aspect of the ocean fishery had nothing --  17 has no relevance to the studies that you made of the  18 river fishery in the Skeena and Bulkley Valleys?  19 A   I wouldn't say that it has no relevance.  There are  20 similarities running through all fishery studies, all  21 scientific studies in fact.  22 Q   Well, the similarities that exist between all  23 scientific studies is an attempt to arrive by  24 objective means at the answers to questions?  25 A   I would take that as a -- I would specify further the  26 objective means I would put in systematic, I would  27 include description of methodology, I would include  28 specifications about data and data handling, that's  29 the ballpark, yes.  30 Q   By objective means, I meant something that could be  31 duplicated by somebody else using the same --  32 A   That's one of the principal criteria, yes.  33 Q   Yes.  And then in 1964-1967 you spent sometime in  34 Chile, and you said the first two years were the most  35 important?  36 A   Yes.  37 Q   And I think you said that the emphasis was on fishery  38 management -- I'm sorry, on marketing?  39 A   That's right.  40 Q   Yes?  41 A  Marketing and community organization, I would say.  42 Q   Yes.  This was a commercial fishery?  43 A   That's right.  44 Q   And an ocean fishery?  45 A   Ocean and estuary again.  46 Q   Yes?  47 A  Many different species involved. 13790  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  A  A  Q  A  M.R. Morrell (for Plaintiffs)  Cross-exam on qualifications  by Mr. Goldie  Q   Just so that we're clear, there is no estuarian  fishery on the Skeena within the lands claim area, is  there?  There's no estuary within the Gitksan and Wet'suwet'en  area, right.  No.  And therefore, and it also follows there's no  ocean fishery there?  That's right.  Yes.  And indeed, there is no recognized commercial  fishery there?  It's widely recognized in the community.  There is a  commercial fishery in the area, yes.  Q   Carried on by the Gitksan and Wet'suwet'en?  A   Yes.  GOLDIE:  Yes.  Against the law?  GRANT:  That's the issue for the court, isn't it, with  respect.  That's the very issue.  MACAULAY:  It's not an issue before this court, my lord.  GRANT:  Well, with respect, the scope of the Gitksan and  Wet'suwet'en management --  Only ultimately you say if you're successful in your  action for ownership and jurisdiction, the present  laws relating to the fisheries might be struck down.  The issue of -- the issue of whether or not that is  or is not against the law is an issue that may well  come within the ambit of this court in terms of the  scope of the Gitksan and ownership and jurisdiction if  the court makes that finding.  Well, I think Mr. Goldie's question is clearly  directed towards the existing Statute Law of  Canada-British Columbia, was it not?  Whether those  laws are ultimately held to be valid or invalid is  possibly an issue at this trial, but accepting or  adopting conventional constitutional practises, I  would have to treat an existing Statute of Canada as  being valid until I conclude that they are invalid,  and surely none of us are under any misapprehension  what Mr. Goldie means when he said fishing and  described it as against the law or contrary to the law  is a descriptive term, is it not?  I'm not sure that  there is before me a pleading under which I can strike  down the legislation or Constitutional basis, there  might be, but at the moment I'm not sure if -- well,  what I'm stating is the question of whether it's  against the law or within the scope of Section 35 is  not the question, it's a question of law, that's my  friend's -- that's the objection.  It's a question of  MR  MR  MR  MR  THE COURT:  MR. GRANT:  THE COURT: 13791  M.R. Morrell (for Plaintiffs)  Cross-exam on qualifications  by Mr. Goldie  law he's asking the witness here.  Well, if -- if  Gitksan or Wet'suwet'en person put a net across the  Skeena or the Babine then in the claim territory, took  fish out of it and sold it, they would be presumably  prosecuted and if convicted they would be punished by  some court of competent jurisdiction.  Surely that's  all Mr. Goldie means by his question, didn't you, Mr.  Goldie?  Yes. It's just a question of fact. What is this  witness, his understanding of the commercial fishery  to which he referred. It's -- I'm suggesting to him  that it is, to his knowledge, an illegal one.  Illegal as being contrary to existing law?  :  Yes.  Of Canada not yet declared to be invalid.  :  That's correct.  Yes.  I think on that basis you can go ahead.  That's your understanding, isn't it, Mr. Morrell?  I see the question as a complex one.  I think there  are a number of laws involved here.  There's the  Fisheries Act, there are band bylaws, and there is  Gitksan-Wet'suwet'en traditional law.  And they say  different things regarding a commercial fishery in the  Gitksan-Wet'suwet'en territory.  But to your knowledge, it is illegal under the laws of  Canada?  Under the Fisheries Act.  Yes?  I am aware there's a section of the Fisheries Act that  limits what Indians can do with fish that they catch  in the fisheries.  Yes?  Yes.  So that's -- the commercial fishery of which you speak  of is illegal in that sense?  Under the Fisheries Act?  Yes?  The only qualification I would put on that is that  I -- I realize that I'm not meant to venture into  areas of law here, but I understand there's a conflict  between the Fisheries Act and the band's bylaws which  has been passed by several of the Gitksan-Wet'suwet'en  band which authorize fishing in the areas to which the  band bylaws apply.  What areas, to your understanding, do those band  bylaws apply?  1  2  1  3  4  5  6  7  8  1  9  MR.  GOLDIE  10  11  12  13  THE  COURT:  14  MR.  GOLDIE  15  THE  COURT:  16  MR.  GOLDIE  17  THE  COURT:  18  MR.  GOLDIE  19  Q  20  A  21  22  23  1  24  1  25  1  26  Q  27  i  28  A  29  Q  30  A  31  32  33  Q  34  A  35  Q  36  37  A  38  Q  39  A  40  41  42  43  44  45  46  Q  47 13792  M.R. Morrell (for Plaintiffs)  Cross-exam on qualifications  by Mr. Goldie  1 A   I understand they apply to the areas designated as  2 reserved within the Gitksan-Wet'suwet'en territory.  3 Q   And from your time spent, that's a small part of the  4 so-called land claims area?  5 A   Of the traditional territory of the Gitksan and  6 Wet'suwet'en.  7 Q   Yes.  The land claims area; isn't that correct?  8 A   That's another term for it.  I'm out of the habit of  9 using that term.  10 Q   Yes.  You're accustomed to using the terms you hear in  11 the Tribal Council?  12 A   That's right.  13 Q   Yes.  14 A  And the terms that the chiefs use as well.  15 Q   Yes.  Now, the -- the report that you've done, that  16 too was under supervision, the report, the 1985  17 report?  18 A   In a broad sense I received a mandate at the beginning  19 of it, yes, and direction.  In fact, the mandate was  20 developed in a step-wise process.  My initial contact  21 with the Tribal Council was with Neil Sterritt, who  22 was the land claims director at the time.  He was my  23 immediate supervisor.  In conversation with him I  24 developed an idea of the sort of study that was  25 required, I wrote up a short proposal, which I then  26 presented to a committee of hereditary chiefs who made  27 up what was called the Land Claims Advisory Committee,  28 presented the proposal to them, discussed it, revised  29 it, and in that sort of a process we developed the  30 proposal which was my guideline in doing the fish  31 management study.  After that it was -- I had a great  32 deal of freedom in deciding how to implement the  33 mandate, how to achieve the objectives that they gave  34 me.  35 Q   Well, the statement that you make on page 2 of your  36 introduction --  37 A   2?  38 Q   2?  39 A   The opinion report or the fish management study?  40 Q   The 1987 report says, and I quote:  41  42 "My first assignment with the Tribal Council was to  43 design and carry out a comprehensive study of the  44 Gitksan and Wet'suwet'en salmon fisheries under  45 the direction of hereditary and elected leadership  46 of the Gitksan and Wet'suwet'en."  47 13793  M.R. Morrell (for Plaintiffs)  Cross-exam on qualifications  by Mr. Goldie  1 Is that a true statement or is it not?  2 A   It's a true statement in the sense that I just  3 explained, that there was a proposal worked out with  4 them beginning with an initiative taken by Neil  5 Sterritt, then land claims director.  Work that time  6 was working under the direction of the elected  7 leadership, Bill Blackwater at the time that I went to  8 work there, and the proposal was further elaborated in  9 discussions with hereditary chiefs.  10 THE COURT:  Can we take the afternoon adjournment, Mr. Goldie?  11 MR. GOLDIE:  That's fine, thank you, my lord.  12 THE COURT:  Thank you.  13 THE REGISTRAR:  Order in court.  Court will recess.  14  15 (PROCEEDINGS ADJOURNED AT 3:05)  16  17 I hereby certify the foregoing to be  18 a true and accurate transcript of the  19 proceedings herein transcribed to the  20 best of my skill and ability  21  22  23  24  25 Graham D. Parker  26 Official Reporter  27 United Reporting Service Ltd.  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 13794  M. R. Morrell (for Plaintiffs)  Cross-exam on qualifications  by Mr. Goldie  1 (PROCEEDINGS RECONVENED PURSUANT TO AFTERNOON RECESS)  2  3 THE REGISTRAR: Order in court.  4 THE COURT:  Goldie.  5 MR. GOLDIE:  6 Q   Thank you, my lord.  7 Mr. Morrell, I take it that when you arrived in  8 the Bulkley Valley you had not undertaken any study of  9 the Skeena River fisheries, and when I say Skeena  10 River fisheries I'm talking not of the ocean or tidal  11 fisheries, but the river fisheries?  12 A  And the time period you're talking about is 1974 when  13 I was there on my --  14 Q   At the time that you arrived in the Bulkley Valley,  15 yes.  16 A   I arrived there once to work.  I arrived there another  17 time to live.  The first time I was ever there was in  18 1974 when I was working for the B.C. Provincial  19 Museum.  2 0 Q   Right.  21 A   I was not studying any fisheries at that time.  22 Q   And then you went to live there in 1976?  23 A   That's right.  24 Q   And at that time I take it that you had made then no  25 study of the Skeena River fisheries, and I'm talking  26 about the river fisheries?  27 A   That's right.  I went there to live because I wanted  28 to live in that place.  29 Q   Yes.  Or the history of the Gitksan people?  30 A   That's right.  31 Q   Or the history of the Carrier or Wet'suwet'en people?  32 A   That's right.  33 Q   They called themselves Carrier at that time, did they  34 not?  35 A   It was the Gitksan-Carrier Tribal Council when I first  36 arrived, yes.  37 Q   Or that you had any knowledge of any archaeological  38 research in the Skeena-Bulkley River areas?  39 A  When I was there in 1974 it was part of a team effort,  40 a resource inventory of the area, and some of my  41 colleagues on that study were archaeologists, were  42 doing an archaeological survey, so in the course of  43 that I had some exposure to it.  It wasn't my  44 principal concern.  45 Q   Some of it rubbed off on you in conversation?  46 A   That's right.  47 Q   Yes. 13795  M. R. Morrell (for Plaintiffs)  Cross-exam on qualifications  by Mr. Goldie  1 A   Incidentally, there was a fishery study going on as  2 part of that too, a fishery inventory.  3 Q   But that wasn't anything that you were concerned with?  4 A   It was not my principal work.  I was staying at the  5 same place, crossing paths with those people, hitching  6 rides on their airplanes, sharing their camps.  7 Q   But I think you told his lordship that your  8 responsibility was with respect to a bird inventory?  9 A   That's right.  10 Q   And your previous two assignments had been related to  11 birds?  12 A   That sounds right.  Yes.  13 Q   Yes.  Nor had you made any -- had any knowledge of any  14 anthropological studies of the Tsimshian peoples or  15 their laws and customs?  16 A   I'm sort of scouring my memory.  I certainly had not  17 made any large scale study.  I may have had some  18 knowledge of it.  19 Q   Or any anthropological studies of the Athapaskan  20 peoples of the Bulkley River Valley or their laws and  21 customs?  22 A   That's right.  23 Q   And wouldn't you agree with me that that was also the  24 state of your knowledge when you were hired by the  25 Tribal Council to undertake the study that we referred  26 to a couple of minutes ago, a comprehensive study of  27 the Gitksan and Wet'suwet'en salmon fisheries?  28 A   By that time I had been living in the valley for -- in  29 the Bulkley Valley for something like three years, and  30 I had -- I had paid attention to the activities of the  31 Tribal Council and of the various bands in the area.  32 I'm interested in people and in cultures and so I'm  33 sure I had some knowledge by then.  34 Q   Uh-huh.  What you read in the newspapers?  35 A   I may have read some papers as well.  36 Q   Well, I wonder if Exhibit 763 could be put before the  37 witness?  This is the Gitksan-Carrier Tribal Council  38 newsletter of February, 1982, and if you could just  39 turn to page 6, there's a page there in the middle of  40 which is a list of names and above that list of names  41 the word "Land Claims Office"?  42 A   Uh-huh.  43 Q   And on the right-hand side there's the name "Mike  44 Morrell - Biologist"?  45 A   Yes.  46 Q   Is that an accurate description of your --  47 A   People referred to me as the staff biologist, staff 13796  M. R. Morrell (for Plaintiffs)  Cross-exam on qualifications  by Mr. Goldie  1 fishery biologist, biologist, fishery person.  2 Q   Right.  And over on the next page there's a column on  3 the right-hand side column headed "Mike Morrell - Fish  4 Biologist"?  5 A   Yes.  6 Q   And in the last paragraph:  7  8 "In the first summer, Mike worked with  9 fishermen between Gitanmaax, Kispiox and  10 Moricetown to collect accurate information  11 on salmon catches."  12  13 That's the first summer of your employment?  14 A   Right.  15 Q   And what year would that be?  16 A   1979 I believe.  17 Q   Right.  And then there purports to be a quotation:  18  19 "Until I started this job all I knew about  20 Indian fishing was what I read in the  21 papers."  22  23 Stopping there.  24 A   Uh-huh.  25 Q   Is that an accurate statement?  26 A   Substantially accurate.  27 Q   Yes. My understanding is that the source of your  28 information of the contemporary Indian fishery were  29 members of the various Gitksan and Wet'suwet'en  30 villages.  31 A  My source of information about the contemporary  32 fishery?  33 Q   Yes.  That's right.  34 A  A good deal of it was personal observation of the  35 fishery during field work --  36 Q   Yes.  37 A   -- on the river.  38 Q   But — yes?  39 A   Sometimes I was by myself.  Sometimes I was talking to  40 Gitksan and Wet'suwet'en people.  41 Q   And — yes?  42 A   I had finished.  43 Q   Yes.  All right.  And at other times the information  44 was gathered by the staff members that you referred to  45 earlier?  46 A   The first two years of the study, the 1979 and 1980  47 field seasons I was operating -- I was the only person 13797  M. R. Morrell (for Plaintiffs)  Cross-exam on qualifications  by Mr. Goldie  1 on the fish management study.  2 Q   But thereafter --  3 A   In 1981, four Gitksan and Wet'suwet'en staff members  4 were hired, and from that point -- well, the next two  5 years of the study, they did most of the field work.  6 Q   Yes.  And they provided you with the data that you  7 have used in the course of describing the contemporary  8 Gitksan fishery?  9 A   That's right.  10 Q   All right.  11 A   I did collect data during those latter years as well,  12 but I had much more administrative responsibility at  13 that point.  14 Q   Well, for instance, in the documents received with Mr.  15 Grant's letter of March the 22nd, the first -- the  16 first 16 interviews appear all have been conducted by  17 a M. Goertzen and Alex Morgan, or by M. Goertzen  18 himself or herself?  19 A   Can you refer me to what you're looking at?  20 Q   Yes.  I'll get you the letter itself from the  21 documents.  I'm going to show you -- we've arranged  22 these in the order that we received them, and this  23 was -- these were delivered to us on March the 22nd,  24 and the description, you can check that if you wish.  25 The documents themselves are under the tab numbers.  2 6 A   Uh-huh.  27 Q   But those all indicate that they were conducted by  28 people other than yourself?  I'm not being critical of  29 you, Mr. Morrell, I just want you to --  30 A   I'm just reviewing the list.  31 Q   Yes.  32 A   Right.  You're talking about the first 16?  Just the  33 first page?  34 Q   Yes, just that first page.  And these were the people  35 that were instructed at this course that you took that  36 you described to my friend?  37 A   No.  Myrtle Goertzen was -- let me start back.  Alex  38 Morgan was working for the Tribal Council in  39 connection with a court case that was referred to  40 around the Tribal Council as the profit a prendre case  41 or the "pap" case, preparing maps of fishing grounds,  42 fishing sites, on reserves.  During part of this  43 project Alex Morgan was assisted by staff of the fish  44 management study, however, during the fishing season,  45 beginning around May, those staff were needed for  46 field work in connection with the contemporary fishery  47 and so other people were hired to work with Alex.  So 13798  M. R. Morrell (for Plaintiffs)  Cross-exam on qualifications  by Mr. Goldie  1 the regular staff of the fish management study were  2 the ones who went through the training programme.  3 Myrtle Goertzen was another person from the community.  4 Q   Yes.  And, in any event, there were people who were on  5 Mr. Scott Clark's staff, as you were?  6 A   Scott Clark was research director at that time I  7 believe.  8 Q   Yes.  9 A   Yes.  10 Q   And so your answer to my question is yes, they were  11 employed -- they were under Mr. Clark, as you were?  12 A   He was the supervisor of all research.  Yes.  13 Q   Yes. All right.  Now, I do not understand that you  14 claim any particular expertise as an historian?  15 A  Maybe you could give me examples of what you mean.  16 I'm not sure what I'm restricting myself to by  17 saying --  18 Q   My understanding is you don't claim to be an  19 historian?  20 A   Yes, I'm not an academic historian.  21 Q   Nor do you claim to be an anthropologist?  22 A   That's right.  That's not my profession.  23 Q   And anything you have done that falls under the  24 heading of either history or anthropology has either  25 been provided you by others or checked by others?  26 A   I'm having trouble with the narrow definitions of data  27 of information in the world.  In my work with the  28 Gitksan and Wet'suwet'en I have dealt with information  29 that could be called historical information, that  30 could be called anthropological information.  I feel  31 that I'm competent to deal with it, and I feel that in  32 the context of fishery science and fishery management  33 it's material that I'm professionally competent to  34 deal with and adds to my expertise about the matters  35 we're discussing here.  I don't want to restrict  36 myself by saying that anything that happened before a  37 certain date is a matter for an historian to look at  38 and I'm not competent to deal with it.  39 Q   No, but your expertise that you claim with respect to  40 such material comes from the years that you spent with  41 it, not from any academic qualifications?  42 A   That sounds fair to me.  43 Q   Yes.  And I'm talking both anthropology and history?  44 A  Again, the categorization of information as falling  45 into one of those categories, as opposed to say  46 fishery science, is a tricky one, and I'm not wanting  47 to be compartmentalized like that. 13799  M. R. Morrell (for Plaintiffs)  Cross-exam on qualifications  by Mr. Goldie  1 Q   But you have asserted, have you not, that so far as  2 your techniques are concerned you're satisfied with  3 them because they were reviewed and they were done  4 under the direction of Mr. Scott Clark who's an  5 academic anthropologist?  6 A   I can see that lending credibility to them as social  7 science research.  8 Q   Yes, but that's what you asserted when you were  9 questioned about your qualifications in the case of  10 Regina vs.  Wilson at Smithers.  Do you not recall  11 that?  12 A   I recall discussing that.  Yes.  13 Q   Yes.  And you said that, and I'm referring to page 12  14 of the transcript, the question at line 19:  15  16 "Q   But you do not -- you are not yourself --  17 you do not yourself have a background to say  18 whether or not your techniques would stand  19 up to accepted anthropological research  20 practises or accepted historiographical  21 research practises, do you?  22 A   Um, as far as I know, the -- the techniques  23 are sound and they were done under the  24 direction of the Land Claims Research  25 Director at the time, Scott Clark, who's an  26 academic anthropologist from Carlton."  27  2 8 Do you remember --  29 A   That's a two-part answer.  30 Q   Yes.  31 A   But as far as I can see, as an intelligent informed  32 person, the techniques are sound and, in addition to  33 that, they have a certain stamp of approval by someone  34 who has an academic background in the field.  35 Q   And the question was put to you "And he was working  36 for the Tribal Council also?"  And you stated  37 "Directing the research." You remember that question  38 and answer?  39 A   His title was --  40 Q   Yes.  41 A   -- research director.  42 Q   And the next question:  43  44 "Q   Directing research.  These researches that  45 you have made were done entirely while you  46 were in the employ of the Tribal Council; is  47 that correct?" 13800  M. R. Morrell (for Plaintiffs)  Cross-exam on qualifications  by Mr. Goldie  1  2 And you said:  3  4 "A   That's right."  5  6 That's correct?  7 A   That's right.  That's what I said.  8 MR. GOLDIE:   All right.  9 THE COURT:  What is that you're reading from, Mr. Goldie?  10 MR. GOLDIE:  The transcript of a prosecution in the provincial  11 court at Smithers.  12 THE COURT:  Yes.  Thank you.  13 MR. GOLDIE:  14 Q   Regina vs. Walter Wilson, June the 1st, 1987.  15 Do you speak either Gitksan or Wet'suwet'en?  16 A   No, I can't carry on a conversation.  I know some  17 words.  18 Q   Are you a member of a Gitksan house?  19 A   No.  20 Q   Or of a Wet'suwet'en clan or house?  21 A   No.  22 Q   I suggested to you that the source of much of your  23 historical information and anthropological information  24 was other members of the research staff, for instance,  25 Susan Marsden provided you with information that  26 you've used?  27 A   Some information, yes, she did.  For example, she did  28 a report on Gitksan sites on the Kispiox River.  We  29 collaborated on that for fishing ground research.  30 Q   Is that the report that in Volume number 1 is under  31 tab 5?  32 A   That's right.  33 Q   Yes.  She actually produced that, did she not?  34 A   Yes.  35 Q   Yes.  All right.  And would I be correct in my  36 understanding that the tabulation of material of the  37 contemporary fishery is yours and that is what you've  38 used in your statistical series?  39 A   The tabulation of the material on the contemporary  40 fishery?  41 Q   Yes.  42 A  Are you referring to catch data --  43 Q   Yes.  44 A   -- and things of that nature?  45 Q   Yes.  46 A   I collected some of the data myself, other parts of  47 the data were collected by different people who were 13801  M. R. Morrell (for Plaintiffs)  Cross-exam on qualifications  by Mr. Goldie  working on the project.  The computer analysis was  done under my direction.  I did some of it on my own,  and others were done by other staff members of the  proj ect.  But when it comes to the narrative with respect to  the -- both the contemporary fishery and the  traditional fishery, you have relied upon information  which you've been given by others?  The narrative about the contemporary fishery --  Yes.  is based largely on my own experience and data.  And the interviews conducted by others?  Pardon me?  And the interviews conducted by others?  I suppose some of the information in the -- you're  talking about now the narrative portion of the  contemporary fishery section of the 1985 FMS report?  Yes, and the references you make to the narrative  fishery in the report prepared for your opinion here.  To the contemporary fishery?  Yes.  It's based on personal observation, it's based on data  collected by others, and -- well, personal observation  is data collected by myself.  Three sources, personal observation, data collected by  others, and dated collected by yourself?  Yes.  Personal observation and data collected by  myself I don't really distinguish.  Same thing?  Yes.  But when it comes to the so-called traditional --  sorry, the traditional fishery, that is to say, the  fishery which is alleged to have been carried on since  a long time before your arrival in the valley, you've  had to rely entirely upon what others have told you?  About events before I got there, yes.  Yes.  And you have relied upon others to validate the  techniques that you have used in your use of that  information?  I don't see that I rely upon other people to validate  it.  I think the material stands on its own.  I can  defend it.  I can explain it.  Well, you accepted, for instance, what Miss Marsden  told you about her researches?  Yes.  She's a colleague. I have respect for her  ability to do the work.  All right.  Thank you.  That's all I have.  1  2  1  3  4  5  Q  6  7  8  9  A  10  Q  11  A  12  Q  13  A  14  Q  15  A  16  17  18  Q  19  20  A  21  Q  22  A  23  24  25  Q  26  27  A  28  ]  29  Q  30  A  31  Q  32  33  34  35  36  A  37  Q  38  39  40  A  41  42  1  43  Q  44  45  A  46  47    ]  MR. GOLDIE 13802  M. R. Morrell (for Plaintiffs)  Cross-exam on qualifications  by Mr. Macaulay  1    THE COURT:  Thank you.  Mr. Macaulay?  2  3 CROSS-EXAMINATION ON QUALIFICATIONS BY MR. MACAULAY:  4 Q   Now, Mr. Morrell, you have never managed a fishery  5 have you?  6 A   That might be a question of definition.  I'd say no as  7 a first approximation.  8 Q   And now the person who manages the fishery on the  9 Skeena is the Department of Fisheries and Oceans  10 stationed at Prince Rupert?  11 A   No, in my view the -- various people manage the Indian  12 fishery in the Gitksan and Wet'suwet'en territory.  13 Q   Oh, come on now.  14 A   The hereditary chiefs.  15 Q   The fishery is governed by the federal government,  16 isn't it?  17 A  We may be into a question of definition here.  18 Q   No, no, no, no definition.  Who enforces fisheries'  19 regulations on the Skeena River?  20 A   The hereditary chiefs of the Gitksan and Wet'suwet'en  21 do.  22 Q   Is that your answer?  23 A   Fisheries officers of the Department of Fisheries and  24 Oceans do.  Conservation officers of the provincial  25 government also enforce regulations.  There are  26 different sets of regulations.  27 Q   In what way does the provincial government govern the  28 Skeena fishery?  29 A   The provincial government, as I understand it, has a  30 set of regulations governing sport fishing, fishing  31 in -- for resident species in lakes and streams.  32 Q   In lakes?  33 A   They also —  34 Q   Skeena?  35 A   They also have people who study and recommend  36 regulations regarding steelhead trout.  I  37 understand -- I know that there are administrative  38 arrangements between the province and the federal  39 government regarding their regulations about fishing  40 for steelhead, and I know that the federal government,  41 the Department of Fisheries and Oceans, promulgates  42 and enforces regulations regarding salmon fishing.  43 Q   Who decides when the fishing will start and stop on  44 the Skeena?  45 A   This is the same answer.  There are overlapping  46 jurisdictions here.  The Gitksan and Wet'suwet'en  47 hereditary chiefs start and stop fishing on fishing 13803  M. R. Morrell (for Plaintiffs)  Cross-exam on qualifications  by Mr. Macaulay  1 grounds that they control.  The Department of  2 Fisheries and Oceans issues regulations designed to  3 open and close the Indian fishery, and there are also  4 regulations that are provincial that also are designed  5 to regulate fisheries within the area.  6 Q   Let's deal with the salmon fishery on the Skeena.  7 A   Okay.  8 Q   There are closed days; you know that?  9 A   There are days when the Department of Fisheries and  10 Oceans regulations say that no fishing is permitted.  11 Q   Right.  And the Department of Fisheries and Oceans  12 sets that policy by themselves?  13 A  At various times they've done so in consultation with  14 representatives of the bands and of the  15 Gitksan-Wet'suwet'en Tribal Council and of the  16 hereditary chiefs.  17 Q   Who decides?  Who has the final decision on when a day  18 will be a closed day?  19 A   The Department of Fisheries and Oceans, to my  20 knowledge, in negotiations and discussions with the  21 Gitksan-Wet'suwet'en Tribal Council --  22 Q   You're dodging the question.  23 A   -- has always maintained that they have the final say  24 as to --  25 Q   Who has the final say?  26 A   That they, the Department of Fisheries and Oceans, has  27 the final say in determining what regulations will be.  28 Q   Well, based on your studies and observations over all  29 these years, who does have the final say, in your  30 view?  31 A  As far as promulgating the regulations?  32 Q   Yes.  33 A   The Department of Fisheries and Oceans.  34 Q   And —  35 A   That is not to say that those are effective  36 regulations.  Those regulations are widely ignored.  37 Q   They're widely ignored by who?  38 A   Indian fishers fishing under the authority of the  39 hereditary chiefs.  40 Q   Are you telling me that the hereditary chiefs tell the  41 Gitksan or Wet'suwet'en to go and fish whenever the  42 Department of Fisheries regulations provide?  43 A   Essentially.  It's not a matter of saying -- yes, it's  44 saying a chief may say to someone that he or she is  45 authorizing to fish on fishing grounds under the  46 authority of that chief.  You may fish there.  It's  47 possible that sometimes they say this is 13804  M. R. Morrell (for Plaintiffs)  Cross-exam on qualifications  by Mr. Macaulay  1 notwithstanding regulations of the Department of  2 Fisheries and Oceans, or words to that effect.  3 Q   To your knowledge --  4 A   I'd say more often the Department of Fisheries and  5 Oceans would not be mentioned.  6 Q   Well, you're aware from time to time that certain days  7 are closed days according to the Department of  8 Fisheries and Oceans?  9 A   That's right.  10 Q   And you're telling me that the hereditary chiefs are  11 telling the members of their houses to go and fish  12 anyway?  13 A   I'd say it's more that they're not telling them not to  14 and that their permission applies. It's -- they're two  15 independent systems in practise.  16 Q   And then there is a management system that you have  17 observed closely, is there?  18 A   That's right.  19 Q   And that's the hereditary chiefs' system?  20 A   That's right.  21 Q   Have you any experience -- have you observed the  22 Department of Fisheries and Oceans management system?  23 A   Yes.  24 Q   And where did you do that?  25 A  Where?  26 Q   Yes.  In what town or village or place?  27 A   I'm sort of at a loss as to where to start.  I'm  28 certainly aware of regulations promulgated by the  29 Department of Fisheries and Oceans. I'm aware of  30 Department of Fisheries and Oceans fisheries officers  31 patrolling the river in river boats and in trucks.  32 I'm aware that they arrest people, issue them with  33 citations, confiscate nets, burn nets, give  34 instructions to people, and that that is part of the  35 Department of Fisheries and Oceans efforts to manage  36 that fishery.  I'm also aware through conversations  37 with other employees of the Department of Fisheries  38 and Oceans management biologists operating on the  39 Skeena of management systems that they use in managing  40 the tidal commercial fisheries, so that would be  41 another aspect of the management system.  So, yes, I'm  42 aware of many aspects of the Department of Fisheries  43 and Oceans management system.  44 Q   And you gained that knowledge from living in the  45 Bulkley Valley and on the Skeena in the claim area?  46 A   That's right, and also from systematically seeking  47 that information. 13805  M. R. Morrell (for Plaintiffs)  Cross-exam on qualifications  by Mr. Macaulay  1 Q   You've spoken to some members of the staff of the  2 manager of the fisheries?  3 A   I've had ongoing relationships with the biologists and  4 various staff members of the Department of Fisheries  5 and Oceans, yes, including the fisheries officers in  6 the Hazelton area and the Smithers area.  7 MR. MACAULAY:   Who's the manager now of the Skeena fishery?  8 MR. GRANT:  Of the Department of Fisheries?  9 MR. MACAULAY:  The witness knows.  I don't need help from my  10 friend.  The witness knows what I'm talking about.  11 MR. GRANT:  I just want it to be clear on the record.  12 MR. MACAULAY:  Well, the witness is clear.  That's the important  13 thing.  14 THE COURT:  That's surely so, isn't it, Mr. Grant?  15 MR. MACAULAY:  16 Q   Who's the manager of the Skeena fishery, the whole  17 river?  18 A   There's no position with that title that I know about.  19 I'm not being evasive, but there are various people  20 who purport to exercise management authority.  There's  21 conflict in the system.  If you're asking me who is  22 the area supervisor for area 4, I could make a guess.  23 I've been away from the area for a year and a half.  24 The last —  25 Q   But area 4 is on the coast, isn't it?  26 A   That's right.  Could you be more specific about who  27 you mean by the manager?  28 Q   Who's the -- well, you say that there is no one  29 manager.  There are Gitksan managers and there are  30 federal officials who purport to manage; isn't that  31 what you're saying?  32 A   I said that there were at least three separate systems  33 that I can think of, all of whom purport to manage it.  34 Q   Who is the federal person who, to use your word,  35 purports to manage it?  36 A   I'm trying to look at my understanding of the  37 Department of Fisheries and Oceans organization.  38 Perhaps it would be the north coast division chief who  39 would be the person of the Department of Fisheries and  40 Oceans who in their system has authority over the  41 entire Skeena.  The last person I knew who held that  42 position was Paul Sprout.  I'm not sure who holds that  43 position now.  44 Q   And did you deal with him?  45 A   I have spoken to him.  I had more contact with the  46 Skeena management biologist Les Jantz and his  47 predecessor Ron Kalawaki. 13806  M. R. Morrell (for Plaintiffs)  Cross-exam on qualifications  by Mr. Macaulay  1 Q   Those are staff members in the northern division?  2 A   Pardon me?  3 Q   Those are fisheries' staff officers in the northern  4 division advisory?  5 A   That's right.  The title is Skeena management  6 biologist of those last two people.  7 Q   Now, turning to another thing, from whom did you learn  8 about Gitksan laws?  9 A   From quite a number of people.  In my opinion, I rely  10 on interviews conducted by staff of the  11 Gitksan-Wet'suwet'en Tribal Council.  In addition, I  12 rely on my own conversations, on my own conversations  13 with Gitksan and Wet'suwet'en people.  I lived in the  14 community for -- in the Hazelton area for eight years,  15 in the Smithers area for three years previous to that,  16 and I had many contacts with people who had one thing  17 or another to teach me about Gitksan and Wet'suwet'en  18 law.  19 Q   So that it's your own researches that have taught you  20 about the Gitksan law, your direct contact with quite  21 a large number of people?  22 A  And the interviews that I referred to.  23 Q   Well, are you the author of the text on what's known  2 4 as map 22?  25 A   Can you tell me the title of that map or show it to  2 6 me?  27 MR. MACAULAY:   Fishing sites —  28 MR. GRANT:  Show the map to him.  29 THE WITNESS:   That's the fishing site map?  3 0    MR. MACAULAY:  31 Q   Yes.  32 A   I didn't write the text for that one.  33 Q   You did not?  34 A   No.  I was involved in production of the map.  Susan  35 Marsden wrote the text.  I reviewed the text.  36 Q   You reviewed the text?  37 A   Yes, we collaborated on this.  38 Q   Well, it starts with the words.  39  40 "The Gitksan and Wet'suwet'en have complex  41 legal systems which delineate, among other  42 things, the foundation perpetuation and  43 regulation of territorial ownership."  44  45 Are those your words?  46 A   Susan Marsden wrote them.  I reviewed them.  47 Q   And were you her supervisor in that regard? 13807  M. R. Morrell (for Plaintiffs)  Cross-exam on qualifications  by Mr. Macaulay  1 A   No, we were collaborators.  2 Q   And what did you have to say to her about those words  3 when you read those?  4 A  As I recall, I made very few changes, if any, in her  5 original text.  I don't -- I don't have any problem  6 with agreeing with that.  That was the purpose of my  7 reviewing it.  8 Q   You agreed with that?  9 A   Yes.  10 Q   And you base that on your own experience in talking to  11 hereditary chiefs and others?  12 A  And reading the interviews and living in the area,  13 yes.  14 Q   Now, there are two other maps, one is called the  15 salmon map 23, and the other fish map 20, and there's  16 a text on each one?  17 A   Yes.  I wrote the text on both of those.  18 Q   That's your text?  19 A   Yes.  20 Q   And those maps are of a more technical nature than the  21 one that Susan Marsden wrote the text for?  22 A   They're both about fish and statistics.  23 Q   Yes, and that's your field, isn't it?  24 A   Yes, that's part of my field.  25 Q   Well, isn't that your field, your academic training is  26 in biology, fish biology?  27 A   I think it's broader than that.  Fishery science.  I  28 don't want to quibble about terms.  There's a lot of  29 biology in my background.  There are other things as  30 well.  31 Q   Now, did you purport to do research and document the  32 traditional Indian approach to the fisheries and fish  33 populations?  34 A   Yes.  35 Q   Well, isn't that a combination of history and  36 anthropology and without any content of biology at  37 all?  38 A   It's certainly not without biological content.  It  39 contains things that you could call history and  40 anthropology sure.  It's all fishery science as far as  41 I'm concerned.  42 Q   It's all fishery science?  43 A   Yes.  44 Q   So that you don't characterize those as either history  45 or anthropology.  46 A   If you'd read me the exact words again?  47 Q   "Research and document the traditional Indian approach 13808  M. R. Morrell (for Plaintiffs)  Cross-exam on qualifications  by Mr. Macaulay  1 to the fisheries and the fish populations."  2 A   I can see that being material for a number of academic  3 disciplines including fishery biology, including  4 fishery science, including anthropology, including  5 history, and it might well fall into other categories.  6 Q   Did you rely on such authors as Hewes?  7 A   Yes, I've read material by Hewes.  8 Q   Hewes is an anthropologist?  9 A   That's my understanding, that he's an academic.  He's  10 employed in an anthropology department, or has been.  11 Q   Did you deal directly with Mr. Hewes?  12 A   I have spoken to him on the phone I recall, but my  13 main contact with him is through I think one published  14 work.  15 Q   And in what way did you rely on Hewes' work?  16 A   I'd like to see the paper.  I believe that --  17 Q   You have the paper, haven't you?  18 A   Yes.  There's a Hewes and a Kew.  They were both works  19 that I consulted as part of my -- the little  20 mathematical model that I constructed of the  21 precontact fisheries on the Skeena.  22 Q   Right.  23 A   I don't immediately distinguish them in my mind.  24 Q   When you read Hewes did you consult one of your  25 colleagues who's an anthropologist who -- in  26 connection with your reading of Hewes?  27 A   Not that I recall.  My main concern in that, as I  28 recall, was to try to extract from that his  29 conclusions about per capita consumption of fish,  30 probably on the Fraser.  As I say, I may be confusing  31 Hewes' work with Kew's; is that right?  32 Q   You've got it right.  And could you make out from  33 Hewes whether that was dressed fish or gutted fish or  34 what kind of fish it was?  35 A   I really don't recall.  I have -- I have notes that I  36 used in the preparation of that mathematical model in  37 which I laid out my reasoning and the basis for my  38 assumptions in the model so I can retrieve that  39 information.  40 MR. MACAULAY:   Did you express opinions on ownership of the  41 fish in the water in your report?  42 MR. GRANT:  Is my friend referring to the '85 report or this  43 opinion report?  44 MR. MACAULAY:  Either report.  The '85 report is part of the  45 present report and it's folded into it.  There is no  46 difference between his report and the '85 report.  47 MR. GRANT:  Well, there are just two different studies that my 13809  M. R. Morrell (for Plaintiffs)  Cross-exam on qualifications  by Mr. Macaulay  1 friend was involved in.  I agree with my friend -- if  2 my friend is referring to '85, maybe it would assist  3 the witness in clarifying what time frame he's talking  4 about.  5 THE COURT:  Are you able to do that Mr. Macaulay?  6 MR. MACAULAY:  What, the — whether it's the '85 report or the  7 present report, the ownership of fish in the water?  8 THE COURT:  You've asked him if he expressed an opinion on that  9 question.  10 MR. MACAULAY:  I think it's in both, my lord.  11 THE COURT: You can't answer that?  12 MR. MACAULAY:  13 Q   It is in both.  Ownership -- an opinion about  14 ownership of the fish in the water.  15 A   Ownership of the fish in the water?  16 Q   Yes, for before they're caught.  17 A   Before they're caught?  18 Q   Yes.  In the Skeena.  19 A   Uh-huh.  20 MR. MACAULAY:   Well, do you have an opinion on the ownership of  21 fish in the water before they're caught?  22 THE COURT: Are we talking about fish heading out to sea or fish  23 coming back to spawn or --  24 MR. MACAULAY:  They only come one way I think, my lord.  25 THE COURT:  Pardon?  2 6 MR. MACAULAY:  I think they only come one way, don't they, and  27 they spawn and die.  28 THE COURT:  Some fish do, but different fish go in each  29 direction.  3 0 MR. MACAULAY:  31 Q   All right.  Fish coming upriver.  We'll confine it to  32 fish coming upriver.  33 A   I don't recall expressing an opinion on that.  The  34 reports are -- I don't know if they're officially  35 before the court or not.  They're certainly in these  36 binders.  The question of ownership of the fish in the  37 water is a tricky one.  38 Q   Well, you don't recall expressing an opinion about  39 that on that tricky subject?  40 A   I don't recall expressing an opinion as to whether the  41 fish in the water --  42 Q   Belonged to any particular person?  43 A   -- belonged to anyone, yes.  44 Q   And do you recall expressing an opinion on the  45 ownership of fishing stations?  46 A   Certainly that, yes.  47 Q   And on what did you rely, on whom did you rely or what 13810  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  M. R. Morrell (for Plaintiffs)  Cross-exam on qualifications  by Mr. Macaulay  did you rely, in expressing those opinions of  ownership of land?  A   On the statements of the chiefs and any Gitksan and  Wet'suwet'en person that I've talked to about it.  It's a widely held understanding.  Q   Did you draw any distinction between reserve land and  land that is not on reserve in that regard?  No.  That is, in regard to fishing stations?  A  Q  A  Q  A  No.  You don't know of any difference that there might be?  Certainly there are differences as far as the laws of  Canada are concerned.  Q   Yes.  A   I don't believe there's any difference as far as the  Gitksan and Wet'suwet'en laws are concerned.  Q   Did you express opinions in either your 1985 report or  in the report submitted to the court on that subject,  the ownership of fishing stations?  A   That must be in there.  I certainly hold that opinion.  I hold an opinion on that.  Q   You think it probably is in there?  A   Sure.  MR. MACAULAY:   Those are my questions, my lord.  THE COURT:  All right.  Thank you.  Is it convenient to stay and  deal with this question?  We should ask madam reporter  first.  I think I'm getting an indication that madam  reporter would rather do this tomorrow morning.  I'm  not at all critical of that view.  No, I think perhaps  we should adjourn.  I guess we're running substantially behind are we,  Mr. Grant?  MR. GRANT:  Yes, my lord. I had indicated to my friends I had  hoped to be completed the evidence of the witness in a  day and I had been optimistic that it would be less  than half a day than where we are now.  I do  understand, although I wasn't here last week and I  just want a clarification from your lordship, I know  that next week you had indicated you were unavailable  generally.  I had anticipated that if there were  problems you would encourage or you would leave open  the practise of sitting on Saturday to complete the  witness.  THE COURT: Well, I indicated we could sit Saturday and Monday.  MR. GRANT:  That's the clarification I needed.  THE COURT:  If we have to.  MR. GRANT:  If we have to. 13811  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  M. R. Morrell (for Plaintiffs)  Cross-exam on qualifications  by Mr. Macaulay  THE COURT:  I would rather avoid sitting Monday and I'd prefer  to sit longer hours and try and finish on Saturday,  but if we can't, then carry on on Monday.  I would certainly hope that that -- I would prefer  that as well.  All right.  Well, do counsel have any suggestions  about what sort of extra hours we might sit?  Should  we start at 9:30 tomorrow morning for example?  That would be, given that we are adjourning now,  that would be worthwhile I think, my lord.  All right.  And I think we should plan on staying an  extra hour tomorrow afternoon.  That's possible.  And we'll decide that and where we'll -- what we'll  do the next day.  Yes, my lord.  All right.  Thank you.  THE REGISTRAR: Order in court. This court will adjourn until  9:30 tomorrow morning.  (PROCEEDINGS ADJOURNED TO MARCH 29th, 1989)  I hereby certify the foregoing to  be a true and accurate transcript  of the proceedings herein to the  best of my skill and ability.  Tanita S. French  Official Reporter  MR. GRANT:  THE COURT:  MR. GRANT:  THE COURT:  MR. GRANT:  THE COURT:  MR. GRANT:  THE COURT: 13812  M. R. Morrell (for Plaintiffs)  Cross-exam on qualifications  by Mr. Macaulay  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


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