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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1989-03-30] British Columbia. Supreme Court Mar 30, 1989

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 13912  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  Vancouver, B.C.  March 30, 1989  THE REGISTRAR:  Order in court.  In the Supreme Court of British  Columbia, this Thursday, March 30, 1989.  Calling the  matter of Delgamuukw versus Her Majesty the Queen at  bar.  I caution the witness you are still under oath.  THE COURT:  Mr. Grant.  MR. GOLDIE:  My lord, I have no objections to -- with respect to  appendix three which my friend had tendered at the  close of the hearing yesterday.  That's in volume 2?  THE COURT  MR. GRANT  Q  A  Q  A  A  Q  A  Q  A  Q  A  Q  A  Two.  Now, maybe I could -- before I -- I did tender it  yesterday and it came to my attention that it should  be connected to another part.  You have volume 2 in  front of you, I believe.  Can you refer to tab 2, page  138, which is at the beginning of chapter five of the  FMS report?  Yes.  Now, does this chapter, chapter five, which is  entitled the "History and Current Status of Skeena  Salmon Stocks", does it have any connection with -- in  terms of subject area, with an appendix three which we  were discussing yesterday, which is the historical  catches and escapements of sockeye, chinook and coho  salmon in the Skeena River system?  Chapter five is a review of the same sorts of data as  contained in the appendix you are referring to.  Okay.  And it's, of course, is in 1985, and appendix  three was July 1987?  That's right.  And chapter five, as well as sockeye, chinook and  coho, also deals with pink salmon and steelhead?  That's right.  And they are not covered in appendix three?  That's right.  And did you have further data to rely on in the  preparation of appendix three than you had when you  prepared chapter five?  Yeah, I did.  And that was the Argue material?  The additional material was material contained in  Argue 1985 as cited yesterday, I think.  And in  addition, the escapement data compiled by the  Department of Fisheries and Oceans that I relied on in 13913  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1 chapter five, were updated between the completion of  2 this chapter five and the appendix three, and appendix  3 three reflects the corrected and updated escapement  4 material.  More years and some revisions of details of  5 figures.  In addition, the more recent material  6 contains target escapements which were not available  7 in 1985.  There were no target escapements available  8 to me in 1985.  9 Q   Okay.  Now, with respect to chapter five, why did you  10 conduct that analysis of the history and current  11 status of Skeena salmon stocks; what was the purpose  12 of it?  13 A   The Skeena salmon stocks are the resource that the  14 Gitksan and Wet'suwet'en fisheries depend upon.  15 Q   Yes?  16 A  And it seems obvious that the status of those stocks,  17 including their numbers and their overall health, if  18 you will, is relevant, and their history is likewise  19 relevant to the history of the fishery.  20 MR. GRANT:  Okay.  My lord, I had asked that appendix three be  21 marked as the next exhibit, and I think that was -- I  22 think the number that was proposed was Exhibit 973?  2 3 THE COURT:  Yes.  24 MR. GRANT:  And I would ask that it be marked in light of Mr.  25 Goldie's comments this morning.  26 THE COURT:  Yes.  That will be Exhibit 973.  27  28 (EXHIBIT 973 - Appendix Three)  29  30 MR. GRANT:  And I would ask -- and I am in the court's hands on  31 this -- that chapter five, pages 138 through to page  32 178, the "History and Current Status of Skeena Salmon  33 Stocks" be marked either as Exhibit 973 (1) or Exhibit  34 974.  35 THE COURT:  You are talking now about the fish management study?  36 MR. GRANT:  Yes.  Chapter five of that study.  37 Now, we had marked chapter three except for the  38 first few pages as Exhibit 972, and I am in the  39 court's hands as to the easiest way to handle it.  In  40 light of your ruling, there is only certain parts of  41 this I'm going -- that I will be proposing to tender.  42 THE COURT:  What do counsel for the defence say?  43 MR. GOLDIE:  Well, I think my friend should do a little better  44 than what he is proposing to do, my lord.  The witness  45 gave evidence at length yesterday based upon the  46 latest available information.  He has told us that he  47 is -- a number of things have occurred between the 13914  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  THE  COURT  17  MR.  GRANT  18  19  THE  COURT  20  MR.  GRANT  21  22  23  24  25  26  27  28  29  THE  COURT  30  31  MR.  GRANT  32  THE  COURT  33  34  35  36  37  MR.  GRANT  38  39  40  THE  COURT  41  MR.  GRANT  42  Q  43  44  45  46  47  THE  COURT  time he prepared chapter five and the time he  prepared -- of the 1985 report, and the time that he  prepared appendix three, which was what he was  addressing his evidence to.  Now, I think it's incumbent upon my friend, if he  wishes to tender any part of chapter five, to  delineate those which we are to rely upon which -- and  which aren't covered or brought up to date.  Otherwise, we have two documents, one of which is  supposed to be an update of the other, and we  aren't -- we are left to our own devices to determine  which is the evidence to be relied upon by the court.  I object to the marking of the chapter in its  present form and on the basis that my friend has put  it forward.  What's in it that is additional to 973?  The entire section on the pink salmon, the entire  section on the steelhead.  They are not in Exhibit 973?  No, they are not.  And what Exhibit 973 is, is a  supplement to the discussion in chapter five, and  that's set out at the second sentence:  "These data supersede similar data presented in  that report and are intended as a supplement to  the discussion therein."  It's clear --  Well, I'm -- I am not familiar with this, but I'm  looking at it and I notice that --  It may be.  -- that paragraph 5.23 on page 158 -- sorry, 5.33  deals with sockeye, and -- but when you get to 5.4 on  page 161 you are into chinook.  Is there any reason  why the sockeye material should go in?  It's been  updated in the exhibit.  Okay, I'll canvass this point -- I'll cover this  point briefly with the witness in terms of the  sockeye.  Yes, all right.  Just, Mr. Morrell, the section of chapter five on --  sections of chapter five on sockeye, chinook and I'm  looking -- I'm referring to IV of the index, my lord,  which makes it easier for you to follow the sections  at the beginning of tab 2.  All right. 13915  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  Submission by Mr. Goldie  1 MR. GRANT:  2 Q   Section 5.3 on sockeye, section 5.4 on chinook, and  3 section 5.6 on coho, have those been completed --  4 replaced by the data in Exhibit 973?  5 A   Exhibit 973 which is the appendix to --  6 Q   Appendix three, the historical --  7 A   — to the 1987 work?  8 Q   Yes.  9 A   Is basically a presentation of data with explan --  10 with brief explanatory notes.  The text in this  11 chapter five of the FMS report is -- goes into more  12 detail.  The narrative is more complex and adds  13 background material that is not available in the  14 appendix.  15 Q   And the material you gathered for chapter five, you  16 have cited references in the bibliography to the FMS  17 report on which you've relied, the cited references?  18 A   That's right.  19 Q   And they are citations within the narrative in chapter  20 five?  21 A   That's right.  22 Q   And so with respect to those three sections; sockeye,  23 chinook, and coho, there is a more detailed narrative  24 of them in chapter five, but Exhibit 973 provides  25 supplemental data that you obtained afterwards?  26 A   That's right.  27 Q   Okay.  Does Exhibit 973 -- did the supplemental data  28 in Exhibit 973 alter your opinions or conclusions in  29 the narratives of chapter five?  30 MR. GOLDIE:  Well, my lord, he gave his opinions on that all day  31 yesterday.  Are we to pay any attention to the  32 evidence which was given yesterday or are we to look  33 at this document today?  Surely the question is, is  34 there anything in this material that you wish to adopt  35 for the purposes of the evidence that you have given  36 in this court?  37 THE COURT:  Which he hasn't already said, I suppose.  38 MR. GOLDIE:  Exactly.  We took notes, we listened carefully to  39 everything that was said yesterday, and I understood  40 the witness was telling us about the current and the  41 historical status of the sockeye and coho and  42 everything else that was connected with them.  Now, if  43 he wants to say, "My evidence today with respect to  44 the pink is what is found in these pages," I accept  45 that, on the assumption that he has got nothing to  46 add, there is nothing that changes or brings up to  47 date or modifies in any way.  But otherwise, we have 13916  M. Morrell (for Plaintiffs)  Submission by Mr. Grant  1 got something that was written in 1985 which we are  2 told is supplemental to something written in 1987.  3 MR. GRANT  4 THE COURT  5 MR. GRANT  6 THE COURT  No, that's not --  Other way around.  It's the other way around.  We have something written in 1985 supplemented by  7 something in 1987.  8 MR. GOLDIE:  But the question my friend put to the witness  9 was -- it put it the other way around.  10 MR. GRANT:  Well, I don't think I did.  11 THE COURT:  Well, Mr. Grant, why do you need this — these —  12 the witness has covered sockeye yesterday.  13 MR. GRANT:  The witness has covered sockeye --  14 THE COURT:  Now, why do we need 5.3 to be put it?  It's out of  15 date -- it's not up to date, and he has told us what  16 he wants us to know about sockeye.  17 MR. GRANT:  The data in it — the data in it is updated by  18 Exhibit 973, my lord, the narrative of it is not.  19 What I am -- the purpose of putting in this particular  20 chapter which is based upon data that this witness has  21 obtained from federal sources, is to -- is the  22 background -- is the completion of the background of  23 the status of Skeena salmon stocks.  And the reason I  24 am asking to tender it as an exhibit, this -- this  25 material, my lord, has, of course, been in the hands  26 of the defendants for two years.  But the reason that  27 I put this, as well as appendix three, is that -- is  28 to -- is -- I'll be very frank -- is to shorten  29 down -- I don't want to go back into each of those  30 distinctions.  It's apparent when we look at  31 exhibit -- Exhibit 973 is supplemental to chapter five  32 which provides the narration for Exhibit 973 -- the  33 narrative with respect to each of these stocks for  34 Exhibit 973, and they formulate part of the opinions  35 of this witness.  That's the reason why I want to put  36 it in.  37 THE COURT:  Well, the easy thing would be to throw up our hands  38 and say, "Let's put in chapter five from page 138 to  39 178."  But I'm not sure that that's the right way to  40 proceed, Mr. Grant, especially when there is an  41 objection.  I guess one can't help but long for the  42 days when witnesses went into the box and told us what  43 their evidence was and they were cross-examined and  44 departed.  Now they come in and they give us a lot of  45 evidence and now we are into the third day for this  46 witness, and now you want to put in --  47 MR. MACAULAY:  My lord, this isn't the same evidence.  This 13917  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. Morrell (for Plaintiffs)  Submission by Mr. Macaulay  Ruling by the Court  isn't the same evidence, and I -- if your lordship  would turn to page 160, that's an illustration of what  I mean.  The last paragraph on page 160.  We heard  nothing of this yesterday, or not that I can recall  anyhow, unless I missed it.  THE COURT:  Well it may be that —  MR. MACAULAY:  It's — there is a question of relevance that  arises here.  160, he says:  "The danger of allowing salmon production to  become concentrated in a few stocks is the classic  risk of putting all your eggs in one basket.  When  assets are concentrated, a single disaster can  have more severe effects than if the assets are  more widely distributed.  For example, if the 1951  Babine slide occurred today, it would affect 96%  of Skeena sockeye rather than the 75% affected at  the time.  A disease outbreak at one of the  enhancement facilities would have similar  magnified effects; the current epidemic of  infectious --"  And I won't try to pronounce that word.  "-- necrosis (IHN) at the Fulton River spawning  channels is precisely this type of problem."  Now, that's evident of the sort of thing  yesterday, and what relevance does it have?  Of course  what the witness is trying to say is the D.F.O.  management system has certain defects and here is one  of them.  They are concentrating on that particular  run of sockeye and that's a bad thing -- or at least I  assume that that's the only point he is trying to make  there, and that's not relevant.  Also, it's not --  nothing -- none of that was in evidence yesterday.  MR. GRANT:  Well, that's the point, my lord, is that I am not —  I can go through, and if that's what my friends are  suggesting, go through this step by step, the more  detailed narrative and deal with it.  But I -- I did  not particularly see the point of doing that with this  witness on direct examination when my friends may well  have questions about his opinions in this chapter on  cross.  With respect, I say it does not come within  the ambit of the area that was challenged yesterday in  terms of all of these appendices.  THE COURT:  Well, there is no answer to this, Mr. Grant.  Your 1391?  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. Morrell (for Plaintiffs)  Ruling by the Court  In chief by Mr. Grant  friends object, they say either that the material in  this chapter is -- has been supplanted or the witness  has already given the evidence, or as Mr. Macaulay  just said, some of it is irrelevant.  And it seems to  me that I cannot just holus-bolus put it in as  evidence in the case.  I think we are driven to you  adducing the evidence from the witness as you think is  appropriate, and as we go along, if it is convenient  with respect to particular parts of it to put in pages  in evidence rather than have the witness remouth the  words, then I hope that we would proceed that way.  But I do not think that I can make a blanket ruling  that that would accommodate what may well be valid  objections, and I think you are going to have to  approach it on a piecemeal basis, and as long as your  friends are maintaining their objection.  Well, I'll come back to it in that case, my lord.  Thank you.  MR. GRANT  THE COURT  MR. GRANT  Q  To that particular section.  Now, I would like to just refer you briefly,  again to map 20, Exhibit 358-20, which you described  yesterday and explained yesterday.  As a result of the  date that is presented on this map, what conclusions  have you come to with respect to the Gitksan and  Wet'suwet'en fisheries?  A   Certainly that they are well situated to utilize the  major sockeye resource of the region.  In general,  that they are -- their resource base that supports the  Gitksan and Wet'suwet'en fisheries is of regional  significance:  the largest sockeye run in the region,  a regionally significant chinook run as well as an  important coho run into the -- I'm referring now to  the upper Skeena pie chart.  Q   Um-hmm.  A  And I'm talking both of target escapements as an  indication of capability of the system as well as  current escapements.  Q   Um-hmm.  If you -- yesterday you explained about the  contrast between the enhanced Babine sockeye runs and  the other sockeye runs?  A   Yes.  Q   Would the sockeye on the upper Skeena be significant  if you did not have the enhanced Babine sockeye?  A   In terms of present escapement -- if you subtracted  the enhanced stocks from the current escapement, the  actual escapement would be considerably reduced.  But 13919  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  MR.  COURT  GRANT  Q  the escapement to the unenhanced stocks is still  certainly of regional significance.  In terms of capability, that is as measured by  target escapements, the unenhanced stocks are quite  definitely regionally outstanding, and although the  Babine stocks are the most important ones in the  system, even if you look at the -- all unenhanced  stocks outside of the Babine system, you are still  looking at a capability of -- in the neighbourhood of  150,000 spawners per year, which is still a large  number of sockeye.  Okay.  Now, I would like to -- I would like to go to  map 22 which is what I commenced to put in front of  you yesterday.  I'm sorry, map 23, my lord.  Now, this  map 23 -- first of all, I just like to point out a few  things on the map 23, if I may.  On the bottom you  have stocks available in the Skeena estuary.  Do you  see that, my lord, that's the bottom graph.  :  Yes.  MR.  THE  THE  THE  THE  MR.  THE  MR.  Slightly to the right.  And there is a reference to S8  there.  Is that to the Lakelse system spawners?  Yes, it is.  Okay.  And the other spawners, you show the S -- for  example, the Zymoetz or Copper River spawners, you  have S7 under there, so should -- under Lakelse system  spawners just to the right of that, my lord, there  should that be an S8?  That's right.  Okay.  Do you have that, my lord?  Yes.  I haven't yet figured out -- is it the pink as  opposed to the red?  I haven't figured out what the  difference is from yesterday.  WITNESS:  Pink is sockeye, red is chinook.  COURT:  Pink is sockeye and red is chinook.  All right.  WITNESS:  Yes.  GRANT:  Sorry, my lord, I was just going to make these few  corrections and then explain the map.  All right.  A  Q  A  GRANT  COURT  COURT  GRANT  Q  A  And then there is -- under the red again, "Stocks  available in the Skeena estuary", there is an S8 at  the bottom.  Now that -- there should be a slight  arrow over to that small square beside the S7 square;  is that right?  That's right.  A lead line similar to the one beside  S5, just above that. 13920  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR.  THE  MR.  THE  MR.  THE  MR.  THE  MR.  THE  MR.  THE  THE  THE  MR.  GRANT:  Do you have that, my lord?  COURT:  Yes.  GRANT:  That's in the chinook graph.  COURT:  Yes.  GRANT:  Q   And then there is a black line -- there is a black  line underneath the sockeye graph, again on the same  one it has Bl then a line and B2 and then another  black line, and underneath that third black line  should it have B3?  A   Referring to that large block, yes, in that large  block.  COURT:  Where should B3 be?  GRANT:  Under this, my lord.  COURT:  I found the Bl and two.  GRANT:  Well, you see these lines are divisions, there  should be a B3 in that line.  In this segment?  In that segment, yes.  Yes.  And B3 means what?  It's an identifier for the Babine stocks.  Babine, yes.  COURT  GRANT  COURT  WITNESS  COURT:  GRANT:  Q  Now, maybe you can just quickly explain the graphical  description on this map.  Can you just explain what  these bar graphs indicate?  A   Okay.  There is two different kinds of bar graphs on  the map:  wide bars and narrow bars.  This is  explained in the upper right in the legend.  The wide  bars refer to the different spawning stocks that, in  the course of their migration, are available at  different points in the main river systems of the  territory as they migrate from the sea to their  spawning grounds.  Q   That would be, for example, the bars above "Stocks  available in the Skeena estuary" that he was referring  to?  A   That's right, that's right.  Q   Okay.  A  All of the labels of those bars begin with the words  "stocks available".  Q   Okay.  What about the narrow bars?  A   The narrow bars are all associated with subdivisions  of the major watersheds to which they belong, indicate  the production of each tributary system in terms of  sockeye and chinook.  The numbers that are represented  by the graphs in all cases are the target escapements 13921  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1 of the stocks involved, which as we've been doing,  2 have been taking as an indicator of the capability of  3 the systems to produce fish.  4 Q   That -- just if I may pause for a moment.  The fact  5 that you take target escapements as an indicator of  6 the capability of production of fish, is that accepted  7 within fisheries science by other authors?  8 A   On the basis of personal communications with Paul  9 Sprout, the definition of target escapement is keyed  10 to the capability of the systems to handle spawning  11 escapement.  12 Q   Okay.  And he is an official at the Department of  13 Fisheries and Oceans?  14 A  At the time that I spoke to him he was the north coast  15 division chief or the acting north coast division  16 chief.  17 MR. GOLDIE:  I had understood the evidence yesterday, my lord,  18 that target escapement was a child of the Department  19 of Fisheries.  20 THE WITNESS:  That's who I am speaking of.  Paul Sprout is an  21 employee of the Department of Fisheries.  22 MR. GOLDIE:  My friend's question was, of course, much broader,  23 about authors generally.  24 THE WITNESS:  Oh.  25 THE COURT:  Well, if you look at the — at the wide sockeye  26 graph for stocks available in the Skeena estuary at  27 the top, there is a figure 91,060.  Is that the total?  28 THE WITNESS:  981.  29 THE COURT:  981, yes.  Is that the total of sockeye that are  30 available in -- at different points in the system, or  31 is that what's left over?  Is this an escapement  32 figure?  33 THE WITNESS:  The numbers come from target escapements.  34 Essentially, these broad bars indicate the sum of the  35 target escapements of all stocks that spawn upstream  36 of that section of the river system.  37 So, the river -- to say that these are the stocks  38 available in the estuary is not quite correct as the  39 footnote indicates.  This -- these stocks are indeed  40 available in the estuary.  In addition to these  41 stocks, there are other stocks available in the  42 estuary that have -- that by the time you have -- they  43 have ascended the Skeena to the point where this graph  44 begins, those stocks have already branched off, as,  45 for example, sockeye stocks spawning in the Gitnadoix  46 River or chinook salmon spawning in the Ecstall.  So  47 in answer to your question -- 13922  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1 THE COURT:  I'm just troubled by your statement:  "The wide bars  2 represent the different spawning stocks available at  3 different points in the territory."  I don't know what  4 you mean in the sense that are they -- are they stocks  5 that are eligible or available at certain places to  6 escape?  7 THE WITNESS:  I'll clarify that.  8 THE COURT:  Yes.  9 THE WITNESS:  The stock groups indicated by the labels within  10 each bar are, indeed, in every year available at the  11 points indicated in the main river system.  12 THE COURT:  Available to be caught?  13 THE WITNESS:  Yes.  They pass through that system and they are  14 susceptible to being caught.  15 THE COURT:  But they escape?  16 THE WITNESS:  The — let's distinguish between the names of the  17 stock, the identification of the stock groups and the  18 quantity of fish, the size of the stocks, okay.  So in  19 terms of the identity of the stocks, those -- those  20 spawning stocks, those populations, whatever the  21 number of fish that is returning to those -- those  22 spawning populations, must pass through the sections  23 of the main stem rivers that are indicated.  In terms  24 of their -- the area that they occupy on these bar  25 graphs, that area is proportional to the target  26 escapement of those stocks, which is an index of their  27 productive capacity.  If every stock -- if every stock  28 were returning at the capacity of its spawning ground  29 only, with no surplus, then these bar graphs would  30 represent the size of the total run of fish and the  31 strength of each of the component stocks ascending the  32 river.  33 THE COURT:  I am not following this, I'm sorry.  I'm having  34 great difficulty grasping the concept of this number,  35 981,000.  And I understood you to say that that was --  36 that was a targeted escapement?  37 THE WITNES:  It's the sum of the target escapements -- or the  38 escapement goals you could call them.  39 THE COURT:  Yes.  For all the stocks available?  40 THE WITNESS:  For all of the spawning stocks of sockeye that  41 spawn above this point on the -- in the Skeena system.  42 THE COURT:  So there is another large volume that are expecting  43 to be -- that are expected to be caught is there?  Or  44 does your escapement come out of this 981,000?  4 5 MR. GRANT:  46 Q   I think what his lordship is raising is the question  47 of what's the distinction between the 981,000, and the 13923  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1 total number -- the total number of fish going through  2 the system from that spot up to wherever, including  3 those that would be caught.  Does the 981,000 include  4 those that would be caught or is it excluding it?  5 A   Right.  The 981,000 is not intended to indicate the  6 size of a run in a particular year.  In fact, to give  7 an index of that, the inset graph in the upper left  8 shows actual figures as estimated by the Department of  9 Fisheries and Oceans for escapement in particular  10 years.  The point of expressing -- expressing --  11 giving a quantitative expression of each of the  12 spawning stocks in these bar graphs, is to (1), give  13 an indication of their relative numerical strength as  14 measured by the capability of existing habitat to  15 produce fish; and also on a -- if we can imagine a  16 time or postulate a situation in which all stocks are  17 healthy and producing at capacity, this is what the  18 spawning escapement up the river would look like.  In  19 a given year, the total return might actually exceed  20 the total spawning escapement.  21 THE COURT:  Yes.  22 THE WITNESS:  And that excess could be taken in a fishery or it  23 might arrive on the spawning grounds, and your actual  24 escapement might be higher than the escapement target  25 or the capacity of the spawning grounds.  26 THE COURT:  I'm sorry, Mr. Grant, I'm just not following this,  27 and I'm sure it's my fault, but I'm just not grasping  28 the concept.  Your 981,060, is that what you target to  29 get to Babine Lake?  3 0 MR. GRANT:  Yeah.  31 THE WITNESS:  Among other places.  32 THE COURT:  And is the catch that comes out of this run in any  33 particular year to be deducted from that amount?  Do  34 you postulate that some of that 981,000 will be  35 caught -- will be taken in the river, or are you --  36 are you projecting that that many will get into Babine  37 Lake and spawn?  38 THE WITNESS:  Um-hmm, I understand your question.  I'll try to  39 think of a right answer.  The graphs are not intended  40 to indicate an actual run.  Escapement, by definition,  41 is the fish that spawn.  42 THE COURT:  That spawn, yes.  43 THE WITNESS:  And a target escapement is the number of fish that  44 would spawn in each stock if everything were ideal.  45 THE COURT:  So this graph postulates or assumes 981,000 of  46 sockeye that pass through the Skeena estuary will  47 actually reach the spawning grounds in Babine Lake? 13924  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1 THE WITNESS:  That's not the intent of the graph.  If — if  2 981,000 odd sockeye did pass this point on the Skeena  3 River around Terrace in a given year, and if they were  4 distributed among the different spawning populations  5 as the subdivisions of the bar indicate, then each  6 spawning stock -- and if there were -- there were no  7 fish taken in the river system above this point, then  8 each spawning stock will receive its target  9 escapement.  10 MR. GRANT:  11 Q   Are you -- does that indicate that target escapement,  12 the capability of each of those spawning areas as to  13 the capability vis-a-vis habitat and other conditions,  14 of how many fish could spawn there?  15 A   Yes.  There is a definition of target escapement in  16 the upper left of the graph.  It's the optimal number  17 of spawners for a specific stock on the basis of  18 available habitat and/or stock productivity.  19 THE COURT:  Let me try once more, Mr. Morrell.  20 THE WITNESS:  Please do.  21 THE COURT:  You are estimating or you are targeting 981,060 in  22 the Skeena estuary.  You are targeting a lesser  23 number, I think it's 905,700 in the mid Skeena, and a  24 still lesser number of 867,350 in the Babine system.  25 Is it anticipated -- are those two other bar graphs,  26 are they included in the 981?  27 THE WITNESS:  That's right.  And the reason the numbers change  28 is that if you look closely at the sub-blocks of --  29 that compose the wide bars.  3 0 THE COURT:  Yes.  31 THE WITNESS:  As you ascend the river system, different stocks  32 drop out -- branch off from the main stem as they  33 ascend their spawning grounds.  For example, look at  34 the S6 block of sockeye.  They proceeded up the -- up  35 the Skeena to the mouth of the Kitsumkalum River, they  36 would then turn north up the Kitsumkalum system and  37 spawn in the Kitsumkalum system.  They would no longer  38 be in the main stem Skeena by the time you arrived at  39 the mid-Skeena.  4 0 THE COURT:  Yes.  41 THE WITNESS:  Likewise, in comparing the lower bar graph  42 labelled "Skeena Estuary" with the mid-Skeena one, you  43 see that other stocks are missing, S6, S7, S5, S4.  S4  44 represents the fish that have branched off into the  45 Bulkley system.  4 6 THE COURT:  All right.  47 THE WITNESS:  The Babine sockeye are present in the Terrace 13925  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1 area, present in the mid-Skeena.  2 THE COURT:  Um-hmm?  3 THE WITNESS:  And of course turn into the Babine system and are  4 represented on the Babine system graph but not on the  5 upper Skeena graph.  6 THE COURT:  Yes.  All right.  Thank you.  I think I understand  7 it now.  8 MR. GOLDIE:  You are saying not in the upper Skeena?  Excuse  9 me --  10 MR. GRANT:  11 Q   Yeah, I'm going to come to it.  12 I think there is another graph that my friend --  13 there is -- with respect to these stocks available  14 graph, you have the one at the -- just below Terrace  15 that you have been referring to?  16 A   Yes.  17 Q   And then the next graph, if you follow the main stem,  18 would be what's called "Stocks available in the  19 mid-Skeena"?  20 A   That's right.  21 Q   And it has those deletions that you referred to from  22 between the two?  23 A   Yes.  24 Q   And then you have -- the next one is a much smaller  25 one because it's after the Babine, and that's "Stocks  26 available in the upper Skeena", it's just to the upper  27 right of "Stocks available in the mid-Skeena" graph;  28 is that right?  29 A   That's all true for sockeye.  The proportions are  30 different for chinook, of course, they are a totally  31 different stock structure.  32 Q   Yes.  But the two graphs -- both species --  33 A   The principle is the same.  34 Q   The species are categorized in the same way?  35 A   Yes.  36 Q   So now -- then you talked about the narrow graphs and  37 that is such as you've talked about, just to the  38 right, the Kitsumkalum spawners, S6, as an example;  39 the Lakelse system spawners as an example; and the  40 Copper River spawners, S7, as example?  41 A   That's right.  42 Q   Now, so the purpose of -- can you just clarify the  43 purpose of why you utilized, in depicting this, the  44 target escapement on this map, what were you -- what  45 are you showing here with this?  46 A   I want to indicate the importance of different  47 production areas in the system in terms of their 13926  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1 capacity to produce salmon.  And I want to illustrate  2 the finer structure of the Skeena and Nass salmon  3 runs.  On the last map we aggregated all of the -- all  4 of the stocks of all species spawning in rather large  5 geographical areas and just spoke of a total sockeye  6 run, for example, to the upper Skeena.  This is a way  7 of dissecting that more finely.  Since the aggregate  8 run of fish ascending the Skeena is made up of many  9 separate populations that follow their own dynamics,  10 that have -- that spawn and rear in different  11 locations, that have different requirements and whose  12 status, in fact, varies markedly from stock to stock  13 and independently of each other.  14 Q   Okay.  Now, can you just follow through that with  15 either the sockeye or the chinook as to how that  16 shows?  17 A   Okay.  18 Q   And the significance of -- if you want to follow any  19 particular stock as an example.  20 A   Okay.  Let's look at chinook.  Starting at the bottom  21 centre of the graph with the bars labelled "Stocks  22 available in the Skeena estuary".  2 3 Q   Um-hmm?  24 A   You'll see that there are several stocks occupying a  25 rather large area on the graph as well as smaller  26 stock aggregates.  This reflects the varying  27 contribution of different tributary systems to the  28 total Skeena run.  29 Ascending the river -- I should note, first of  30 all, that there is one large chinook production area  31 downstream of the area shown on the map, that is the  32 Ecstall River which enters the Skeena estuary.  33 As you ascend the river there is a major spawning  34 stock using the Kitsumkalum system that branches off  35 just below Terrace.  Smaller chinook stocks use the  36 Lakelse and Copper River systems.  All -- all of the  37 stock aggregate shown in the estuary bar are available  38 to fishers in the main stem at all points above the  39 confluence with the Copper River, and clear up into  40 the Gitksan and Wet'suwet'en area, until you reach the  41 Kitwanga River where the small Kitwanga stock leaves  42 the system.  43 Q   And that's S5 on the bar graph, the wide bar graph,  44 and it's reflected at Kitwancool River?  45 A   That's right.  4 6 Q   Um-hmm?  47 A   Continuing to follow the Skeena upstream, no major 13927  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1 changes in available stocks of chinook.  There is a  2 small stock that uses the Kitsegukla River.  No major  3 changes until you reach the confluence of the Bulkley  4 which is the place where a large stock, the Bulkley-  5 Morice spawners leave the system.  They, in their  6 turn, ascend the Bulkley River, and the majority of  7 them spawn in the outlet of Morice Lake.  8 Q   And that's shown by the target escapement of 18,100 at  9 the mouth of the Bulkley, that's the Bulkley-Morice  10 system spawners.  Of that 15,200 are Morice system  11 spawners shown at the head of the Morice Lake on the  12 map?  13 A  Again, I should emphasize that the numbers represent  14 the ideal number -- the optimal number of spawners to  15 the spawning grounds.  16 Q   The capability of the system?  17 A   That's right, that's right.  The actual escapements  18 are a different story, and those are covered in the  19 appendix three that we've been talking about.  20 Q   Okay.  Go ahead.  21 A   Okay.  So back to the main stem Skeena at the  22 confluence of the Bulkley at Hazelton.  From this  23 point on, a summary of the stocks available at that  24 point is shown in the wide bars, again, indicating the  25 stocks available in mid-Skeena, just to the left of  26 Hazelton, Gitanmaax, on the map.  27 Q   And those would reflect the stocks available upstream  28 of the mouth of the Bulkley River and downstream on  29 the mouth of the Kispiox River on the Skeena?  30 A   That's right, that's right.  31 Q   Go ahead.  32 THE COURT:  Probably a foolish question, but apart from the  33 Morice River?  34 THE WITNESS:  Yes.  35 THE COURT:  I'm sorry, the Morice River system, what explains  36 the difference between the escapement at the estuary  37 for chinook of 93,000 and 34,000 in the mid-Skeena?  38 THE WITNESS:  The difference is all of the stocks that have left  39 the main stem downstream of Hazelton, that is the  40 Kalum system spawners, the Lakelse system spawners,  41 the Copper River spawners.  42 THE COURT:  They look pretty minuscule?  43 THE WITNESS: 20,000 to the Kalum.  4 4 THE COURT:  Yes?  45 THE WITNESS:  3,000 to the Copper.  Approximately a thousand  46 each to Kitwanga and Lakelse, 21, 22, 25.  47 THE COURT:  The other is 60,000? 1392?  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. Morrell (for Plaintiffs)  In chief by Mr. Grant  THE  THE  THE  THE  MR.  WITNESS:  Pardon me?  COURT:  We've got to get rid of 60,000.  WITNESS:  We have got 25,000 there and 33,000 up the  Bulkley.  That's 25, 58.  I'm talking about the chinook.  COURT:  GRANT:  Q  A  Q  No.  18,000 to the Bulkley.  Whoops, sorry.  18, 21, 22, 42, 43.  Would that figure of 34,000 include the Kispiox system  Come at it from the  spawners or not?  According to the labelling it does,  That's 10,000?  Should include the Bear, yes.  other direction.  What stocks are available there?  13,600 in the Bear, 1,000 in Slamgeesh, Babine is  another 10,000.  Well, the Bear system would still be available in  the mid-Skeena, wouldn't they?  WITNES:  Yes.  COURT:  They would have to come up the 34,000?  WITNESS:  That's right.  They are indicated by that SI block  COURT:  Yes.  WITNESS:  Okay.  We have got the Babine system there.  COURT:  Well, it may well add up —  WITNESS:  It should.  I hope it does.  COURT:  It should balance.  All right.  Well, let's go on.  WITNESS:  Adding -- if you add the stocks available in  tributaries above that point, it does seem to add to  34,000.  I can't immediately --  COURT:  Yes, all right.  WITNESS:  -- arrive at it by subtraction from the --  COURT:  Can you tell me, is there some place where -- I  haven't found it yet, where you see what each of these  symbols means, like, Bl, 2, 3 and S?  WITNESS:  If you look at tributary systems, each of them  should have a number below it.  COURT:  I see.  So you've got to go to the map, there is no  legend for that?  WITNESS  COURT  GRANT  COURT  WITNESS  COURT:  WITNESS  A  Q  A  THE COURT  THE  THE  THE  THE  THE  THE  THE  THE  THE  THE  THE  THE  THE  THE  THE  THE  MR.  THE  THE  THE  THE  THE  That's right.  All right.  But the B —  B means Babine, does it?  Yes.  What's -- B3 is wild stocks,  The two enhanced systems -  right, the Fulton River spawners and Pinkut.  COURT:  Fulton B2 and Pinkut is Bl.  Yes, I see.  All right.  What's B2 and Bl?  if you look to the 13929  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1 And does it have any S's?  2 THE WITNESS:  S's are other tributaries of the Skeena.  Simply  3 to distinguish them from the Nass system.  4 MR. GRANT:  Yes.  And the N's on it are the Nass system.  5 THE COURT:  Yes, all right.  The Bear stocks have to go up the  6 upper Skeena to its confluence with the Sustut?  7 THE WITNESS:  That's right.  8 THE COURT:  To get to the Bear?  9 THE WITNESS:  That's right.  It's spawning primarily in the  10 outlet of Bear Lake.  11 THE COURT:  Yes.  12 THE WITNESS:  Incidentally, you could refer to the legend — or  13 actually, you can see the pink highlighting of various  14 tributaries.  Those indicate actual known spawning  15 grounds.  16 THE COURT:  Yes, yes.  17 THE WITNESS:  Both ones with large capacity and ones with much  18 smaller.  19 THE COURT:  Yes.  All right, thank you.  2 0 MR. GRANT:  21 Q   And the dots there refer to generalized locations of  22 fishing sites?  23 A   That's right.  24 MR. GOLDIE:  Well, my lord, I'm objecting to that.  25 THE COURT:  All right.  26 MR. GRANT:  Just if my friend may clarify what he is objecting  27 to with respect to that.  Why?  28 MR. GOLDIE:  I am objecting to the depiction on this map by this  29 witness of the location of fishing sites.  30 THE COURT:  Well, that would depend on whether the witness has  31 actually --  32 MR. GOLDIE:  Yes.  33 THE COURT:  — seen them.  34 MR. GOLDIE:  We have heard no evidence from the witness.  35 MR. GRANT:  I haven't come to his evidence on that point, if  36 that's what my friend is raising.  37 MR. GOLDIE:  Precisely.  38 MR. GRANT:  And I plan to come to it.  It's an entire other map  39 of fishing sites, my lord, that I'll be dealing with.  4 0 THE COURT:  Yes.  41 MR. GRANT:  42 Q   This -- and what does this map show to you with  43 respect -- the depictions of target escapements from  44 that, what conclusions have -- can you make with  45 respect to the Gitksan and Wet'suwet'en fishery?  46 A   That's kind of a two-part question.  What -- what the  47 map indicates is, as I said initially, the stock 13930  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1 structure of salmon production in the system.  Another  2 way of looking at it is the way the various spawning  3 runs are distributed through the tributaries of the  4 system.  Particularly with respect to chinook, it's --  5 it's clear that the production capacity of the system  6 is diversely distributed through the system and that  7 reflects in a general way, subject to stock status,  8 the state of the runs today or the state of the runs  9 at any moment in history.  The sockeye graphs, of  10 course, show the same thing.  11 So what it shows you about the fishery is the  12 reasons why the fishing effort is distributed as it  13 is.  It explains a lot of the behaviour of the fishers  14 through the season, and historically as well as, for  15 example, if -- if you add to this information on the  16 timing of the migrations of the different stocks, each  17 of which is following its own timetable, it would  18 explain, for example, not only why Moricetown Canyon  19 on the Bulkley is an important spring salmon, chinook  20 salmon fishing area, it would also explain why people  21 from the Fraser system and from the Babine system  22 might come there to get spring salmon earlier in the  23 year when those fish are not available in their  24 systems.  If you look at the Kispiox River, it would  25 explain to you why people might fish chinooks in the  26 Kispiox River itself early in the season and then  27 switch to fishing grounds on the Skeena later in the  28 year to take advantage of the Babine sockeye passing  2 9 through.  3 0 Q   Um-hmm.  31 A  Also, in terms of sockeye and timing, it -- it  32 explains why people from Babine Lake would come to  33 Moricetown or Hagwilget early in the season to take  34 advantage of the early runs, not only of chinook  35 salmon but also of sockeye, to the -- to the Bulkley  36 system.  In summary, it relates to the distribution of  37 fishing grounds and fishing effort within a particular  38 season over the territories.  39 THE COURT:  Have I got this right, that the bar graphs depict  40 what is targeted to be uncaught?  41 THE WITNESS:  That's right.  42 THE COURT:  Yes, all right.  43 THE WITNESS:  That's right.  And if I may add, just to make that  44 connection.  4 5 THE COURT:  All right,  46 THE WITNESS:  What that — the way that target is arrived at is  47 that that is taken as the optimal number of spawners 13931  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  THE  THE COURT  THE  THE  THE  THE  MR.  in that system, and that is an index of the productive  capacity of the system.  COURT:  Is that target fixed with relation to what it --  what is thought will be required in order to maintain  the present levels or to enhance levels or what?  WITNESS:  It's the escapement that would optimally utilize  those systems by comparing actual escapement figures  to those targets.  You have an index of how that stock  is doing relative to its potential.  Yes, all right.  If the catch was down in any  particular year, I suppose the tendency would be to  increase the target for escapement?  WITNESS:  The target would stay the same.  The effort would  be to bring the actual escapement closer to the  target.  COURT:  I see.  WITNESS:  As we saw in looking at those -- the graphs of  actual escapement and target escapement in appendix  three yesterday, most of the stocks of most species in  the system are currently operating considerably below  the target escapement levels.  No attempt is made to counter estimate the number of  young salmon heading out to sea, is there?  WITNESS:  That's done in the Babine system.  That's a useful  piece of information.  It's done routinely in the  Babine system.  The Babine counting fence operation is  used both to count adults going up and smolts going  out, and also, in fact, they count the fry moving  between the Babine River and the lake.  All right, thank you.  THE COURT  THE  COURT  GRANT  Q  A  Q  A  Q  A  Q  A  Q  You were describing this -- certain -- that this  distribution of capability would explain some  behaviour of fishers.  Did you observe behaviour of  Gitksan and Wet'suwet'en fishermen in terms of their  utilization of different areas of the river systems?  Yes.  And did you observe those kinds of things that you've  just described?  Yes.  And did you observe people from the Babine, for  example, at Moricetown, or from the Fraser system?  Not my knowledge.  I didn't know, personally, very  many people from Babine.  People from the Burns Lake area?  Same thing, same answer.  Okay.  Now, does this tell you anything about 13932  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1 behaviour at Kisgagas, this --  2 A   It certainly indicates why Kisgagas is a good place to  3 fish for salmon.  You have in these years in the  4 neighbourhood of a million, sometimes two million  5 sockeye going through a very narrow canyon with  6 turbulent water, many little resting places off to the  7 side where the fish are very available.  8 Q   Now, I just want to make a contrast to compare the  9 actual escapements and the target escapements, or the  10 capability of the systems.  On the far right graph,  11 you have "Skeena River system escapements, annual  12 variation in escapements".  Do you see that?  13 A   The inset at the upper left?  14 Q   Yes, the inset, I'm sorry, at the upper left.  And  15 there is a very thin dark line near the top of that,  16 almost like a capping?  17 A   You are looking at the annual escapements for the  18 Skeena system?  19 Q   Yes.  20 A   Yes.  21 Q   And that's legended that below that is the Babine  22 system escapement and above that is other Skeena  23 systems?  24 A   That's right.  25 Q   Is the majority of that Babine system escapement as  26 reflected in Exhibit 973, the enhanced stocks that go  27 to Fulton River and Pinkut?  28 A   The breakdown is as it's indicated in that appendix.  29 I think that more than 50 percent of the actual  30 escapement is going to the enhanced systems, yes.  31 Q   And the Pinkut system is Bl on the map and the Fulton  32 River is B2?  33 A   That's right.  34 Q   And those are the two enhanced stocks?  35 A   Yes.  36 Q   But when you look at these stocks available in the  37 Babine system after it diverges off from the Skeena,  38 you have Bl, B2 and B3, and you have the largest part  39 of that graph is B3, Babine wild stock?  40 A   That's right.  41 Q   Okay.  42 A   Yes.  43 Q   Now what -- can you explain that distinction?  44 A   It's the difference between capability and present  45 status.  The -- in terms of capability, wild stocks  46 are considerably in excess of the enhanced stocks.  In  47 terms of actual returns, the situation is reversed. 13933  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  Submission by Mr. Goldie  1 There is higher returns to the enhanced stocks than to  2 the wild stocks.  3 Q   Just a moment.  Oh.  Now, I introduced this just from  4 the legend that there is dots on this map which  5 reflect fishing site locations.  Do you -- were you  6 responsible for locating those dots on the map?  7 A   I was a collaborator in the production of another map  8 from which these dots were taken.  My responsibility  9 in that collaboration was to verify the locations  10 of -- marked for the various fishing sites.  So in a  11 step-wise way, yes, I located the dots on this map.  12 Q   Now, these are referred to as generalized locations,  13 and the other map, I believe it's map 22, it is more  14 detailed than this with respect to fishing site  15 locations?  16 A   There are changes of scale, particularly in places  17 where many fishing sites are concentrated, so you can  18 see more detail.  19 Q   Okay.  Now, how did you come to the conclusion as to  20 the location of these fishing sites on this map?  21 MR. GOLDIE:  Well, he told us, my lord.  He got them from  22 another map.  23 MR. GRANT:  No, he didn't tell us that, Mr. Goldie.  What — how  24 did you determine where fishing sites were located  25 within the Gitksan and Wet'suwet'en area?  26 MR. GOLDIE:  Well, I — my lord, I take objection to this  27 because we had a lot of evidence about the location of  28 various sites from witnesses who purported to have  29 either used them or to have claimed a family  30 connection with them.  Now, unless the witness is  31 taking that evidence and using it to create these maps  32 or collaborate in the creation of these maps, we are  33 getting information from a witness who is relying upon  34 the statements of others.  And we are into the same  35 area that Mr. Sterritt got himself into of hearsay and  36 in some cases double hearsay.  37 THE COURT:  Well, the problem, of course, is that he has seen  38 some of them being used as fishing sites and he has  39 learned about other ones from --  40 MR. GOLDIE:  That's correct.  41 THE COURT:  — from external sources.  42 MR. GOLDIE:  And if he is going to say each one of those — "At  43 each one of those dots I saw people fishing," that's  44 one thing.  But what I'm concerned about and I've  45 looked through some of the material that has been  46 supplied to us, there is a great deal of controversy  47 at times, there is a great deal of conjecture by the 13934  M. Morrell (for Plaintiffs)  Submission by Mr. Goldie  1 informants, not by Mr. Morrell, but by the people upon  2 whom he relies.  And to give the semblance of  3 certainty to what these dots imply, is not a correct  4 depiction of the underlying material.  5 THE COURT:  Well, are we not close to the St. John's principle,  6 Mr. Goldie?  We have got an expert in fisheries who is  7 preparing a comprehensive report -- or is giving  8 evidence in the comprehensive sense, and he knows  9 about some fishing sites from personal observation and  10 he has learned about others from inquiries.  11 MR. GOLDIE:  Yes.  12 THE COURT:  Is that so far different from the appraiser goes out  13 and finds out what people bought and paid -- what  14 people got or paid for properties without calling each  15 one of them individually?  16 MR. GOLDIE:  The St. John's principle allows the appraiser to  17 give an estimate of value.  18 THE COURT:  Yes.  That opinion —  19 MR. GOLDIE:  Mr. Morrell has done that to the extent of saying,  20 for instance, "Kisgagas is a logical place for people  21 to fish."  22 THE COURT:  Yup.  23 MR. GOLDIE:  I take —  24 THE COURT:  There's a number of dots up there, is there?  25 MR. GOLDIE:  There are a number of dots up there.  So the fact  26 that there are fishing sites there is within the  27 appraiser's knowledge, that is to say, I expect to  28 find fishing sites there, I expect to find people  29 fishing there.  3 0 THE COURT:  Yes.  31 MR. GOLDIE:  But to say that as is indicated in the other map --  32 from which I understand these dots have been taken --  33 to say that that belongs to Mr. X goes beyond.  34 THE COURT:  I am not sure that he is purporting to say now who  35 owns these fishing sites.  36 MR. GOLDIE:  Well, it is in the next map.  37 THE COURT:  Well, we may come to that.  38 MR. GOLDIE:  Yes.  39 MR. GRANT:  And that's certainly not coming from this witness.  40 The next map is a collaboration.  41 THE COURT  42 MR. GRANT  4 3    THE COURT  I think Mr. Goldie might have another name for it.  I'll leave that to Mr. Goldie, my lord.  Why, Mr. Grant, do you have to have this witness  44 identify these fishing sites?  Can't he serve your  45 purpose by saying, "I have seen fishing sites up and  46 down the length and breadth of all these rivers and I  47 expect there are a great many of them." 13935  M. Morrell (for Plaintiffs)  Submission by Mr. Grant  1  MR.  GRANT  2  THE  COURT  3  4  MR.  GRANT  5  6  7  8  9  10  11  12  13  THE  COURT  14  MR.  GRANT  15  THE  COURT  16  17  MR.  GRANT  18  19  20  THE  COURT  21  MR.  GRANT  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  THE  COURT  42  43  MR.  GRANT  44  45  46  47  Because it's more than suspect.  He can say, "I've seen a great many and I suspect  there are many others."  He has analyzed the fishery, my lord.  It's like  saying -- to take the analogy of the coastal  fishery -- to say that "I know boats fish on the east  coast of the Queen Charlotte Islands and I suspect  they fish on the west coast."  But a fisheries  manager, a fisheries scientist can give opinions as to  where people fish.  It's an important -- I concur to  this extent, my lord:  There is evidence -- there  is --  Olive Johnson I think it was.  Olive Ryan.  Olive Ryan gave detailed evidence of hundreds of  them.  Olive Ryan and Stanley Williams described all of the  fishing sites downstream of Andimaul to the edge of  the territory.  That is the lower Skeena area.  Yes.  Madeline Alfred described a number of fishing sites  at Moricetown Canyon.  I believe it was, if I remember  correctly, James Morrison who described a number of  fishing sites at Kisgagas.  But in order to appreciate  the nature of the system, the location of fishing  sites is relevant in forming his opinions.  Now, I say  that the St. John's principle applies in that what he  is giving is an opinion that this map, as other maps,  is an opinion, and it's an opinion with respect to a  number of features.  This map -- it's not the central  feature of this map is the location of fishing sites,  but the placement of the -- the location of the  fishing sites as depicted here, assists in seeing how  that relates to the capacity of certain -- of certain  stream beds.  And with all due respect, if -- nobody  can give opinion evidence as to the location.  And I  would submit my friend is also wrong because of  course -- but that would come up with another witness  in terms of the ownership of those sites, that is who  owns those sites.  Well, is this witness going to be asked to identify  the alleged or purported owners of these sites?  No.  On the next map, the names of the sites -- the  locations of the sites, the names of the sites and the  house chiefs who claim ownership of those sites is  depicted.  What this witness will do with respect to  that map, his aspect of knowledge and work with that 13936  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. Morrell (for Plaintiffs)  Submission by Mr. Grant  Ruling by the Court  map, was with respect to the locations of those sites.  Another witness will be tendered who will refer to  their opinion with respect to the names of those  sites.  And with respect to the ownership of those  sites, most of that evidence is already before you  through the evidence of the chiefs, aside from a few  areas of the river.  And I submit that that other  witness will be capable of giving opinion evidence  with respect to that.  THE COURT:  Well, as this map, in my view, is otherwise  admissible, it seems to me that it is not departing  dangerously or -- I was going to say dangerously at  all, but I'll just say dangerously -- from the  principle, to allow the witness to say that, "I have  seen fishing at a number of the sites depicted by  black dots on this map."  And if you want him to  identify which ones and your friends want you to go  through that tedious process, then I would see no  objection -- no possible objection to him doing that.  I think that the -- as far as he can go with respect  to the rest of the map is to say that, "I was partly  involved," or, "I was in charge of the preparation of  this map and I have shown on there with black dots  where other people have told me there are fishing  sites."  Surely he can't go beyond that.  MR. GRANT:  Well, what I will do — what I would prefer to do,  because this -- these dots were derived from the other  map which he was involved in and it's easier to deal  with them in that context of that map.  And then I'll  connect it back to these dots.  THE COURT:  All right.  Well, I'll look forward to hearing you  do that when we return in a few minutes.  THE REGISTRAR:  Order in court.  This court will recess  (PROCEEDINGS ADJOURNED AT 11:15 a.m.)  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.  Toni Kerekes,  O.R., R.P.R.  United Reporting Service Ltd. 13937  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. Morrell (for Plaintiffs)  In chief by Mr. Grant  Ruling by the Court  (PROCEEDINGS RECONVENED PURSUANT TO THE MORNING BREAK)  THE  MR.  MR.  REGISTRAR  GRANT:  Q  Order in court.  A  Q  A  Q  A  Q  A  Q  A  Q  A  Q  A  GRANT  THE COURT  MR.  GRANT:  Q  A  Yes, my lord.  Before proceeding to tender this map,  my lord, Map 23, I'm going to go back, Mr. Morrell, to  some of your -- to your techniques, and are you  familiar with a body of interviews known as land  claims and fish management study interviews?  Yes.  And I'm just showing you Exhibit 948 and 949.  These  are land claims interviews of Wet'suwet'en witnesses,  my lord, tendered in the evidence of Dr. Antonia  Mills.  You can just look at the cover -- the index  there, which is a cover letter of Mr. Rush.  You've  had a chance to look at those -- to look at that index  and scan those interviews?  Yes.  And they are interviews that you relied on and  referred to?  I've reviewed these interviews, yes.  Yes.  Read many of the transcripts.  Okay.  And the same with Exhibit 94 9, which are  further interviews of Wet'suwet'en witnesses?  Yes.  Okay.  Did you refer to -- did you read those  interviews and rely on them in the formulation of some  of your opinions with respect to the nature of the  Gitksan and Wet'suwet'en fishery?  Yes, I did, I reviewed them.  I'm sorry, I should say with respect to the nature of  the Wet'suwet'en fishery because those are  Wet'suwet'en witnesses.  Yes.  I'd like to show you Volume 3 of the document book,  which is a volume of interviews with Gitksan  witnesses.  Thank you, Madam Registrar.  This is something different from Dr. Mills' two  volumes of interviews?  Yes, this is with respect to Gitksan witnesses, my  lord.  First of all, is it correct to say that tabs 1  through to 12 and tab 14 are your notes of interviews  you had with those people?  That's right. 1393?  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  Ruling by the Court  And the subsequent tabs are interviews of the same  nature as those in Exhibit 948 and 949, in other  words, interviews that were done with Gitksan  witnesses that formed part of the body of the land  claims interviews?  That's right, if you're lumping them all as land  claims interviews.  At one point there was a  distinction between land claims interviews and fish  management study interviews.  Okay.  1 to 12 and 14 are Wet'suwet'en, are they?  No, no.  I'm sorry, my lord.  1 to 12 and 14 are  interview notes of Mr. Morrell himself.  All right.  Mr. Morrell's what?  Mr. Morrell himself.  Well, this is in this Volume 3, yes.  Yes.  Interviews that he conducted?  Yes.  I'm referring here to Volume 3, my lord.  I'm just looking at them.  No, they're not all  Wet'suwet'en.  No, they're not all Wet'suwet'en.  No.  All right.  All right.  And what are the  balance?  The balance of them, and I'll go from tab 15 through  to tab 29, are land claims fish management interviews  that you referred to, you read and relied on with  respect to information relating to the Gitksan  fishery --  That's right.  -- is that right?  And if you can just go to tab 13 because it's a  little bit different.  Tab 13 is a transcription of an  interview of Rufus Good, who is a deceased person; is  that right?  That's right.  Rufus is deceased.  And it was an interview that he  gave to Mary Johnson in 1973 regarding the making of a  t'in or dam?  Fish weir I would call it.  Fish weir.  And you relied on that transcription of  interview as well --  Yes.  -- for information?  Now, this set of Gitksan interviews from tab 15  1  Q  2  3  4  5  6  A  7  8  9  10  MR.  GRANT:  11  THE  COURT:  12  MR.  GRANT:  13  14  THE  COURT:  15  MR.  GOLDIE  16  MR.  GRANT:  17  MR.  GOLDIE  18  MR.  GRANT:  19  THE  COURT:  20  MR.  GRANT:  21  THE  COURT:  22  23  MR.  GRANT:  24  THE  COURT:  25  26  MR.  GRANT:  27  Q  28  29  30  31  32  A  33  Q  34  35  36  37  38  A  39  Q  40  41  42  A  43  Q  44  45  A  46  Q  47 13939  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  Ruling by the Court  through to 29 is not all of the land claims fish  management interviews?  That's right, there are more.  :  But you relied on these, but you read --  3:  Excuse me.  I would ask my friend not to lead on  this point.  Did you read others than these ones?  Yes.  Okay.  Did you read -- did you read a selected portion  of them or all of them?  I read all of the interviews that had been conducted  with Gitksan and Wet'suwet'en informants by people  working with me on the fish management study and by  land claims researchers in preparation -- I read all  those interviews in preparation of the FMS report.  I  reviewed all of those interviews again in preparation  of my opinion report for -- for this case.  And you -- your first note at tab 1 is an interview  with Alfred Joseph in May, 1981?  This is early on in  your work.  Just looking at the index.  Yes.  Now, the balance of those interviews are dated in  1980 -- when I say the balance of the interviews here,  my lord, I'm referring to tabs 2 through to 11.  Those  occurred in 1986.  This would be after the FMS report?  That's right.  But before your summary opinion prepared for this  case?  That's right.  And were those interviews conducted for the purpose of  research -- further research for the summary opinion?  That's right.  Okay.  And the -- tab 12 is a -- is a discussion in  1984 with Solomon Marsden, so that's one that occurred  before the FMS report?  As I recall, that was part of the process of -- of  writing the FMS report.  Okay.  And the last one with Stanley Nikal in 1987.  That was a telephone discussion with him prior to --  after the completion of your opinion report, but prior  to the completion of all the appendices to that  report?  Let me check the date.  It's tab 14.  That's right.  I was working on the appendices up  until July, '87.  1  2  3  A  4  MR. GRANT  5  MR. GOLDI  6  7  MR. GRANT  8  Q  9  A  10  Q  11  12  A  13  14  15  16  17  18  19  Q  20  21  22  A  23  Q  24  25  26  27  A  28  Q  29  30  A  31  Q  32  33  A  34  Q  35  36  37  A  38  39  Q  40  41  42  43  44  A  45  Q  46  A  47 13940  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  Ruling by the Court  1 Q   And that was part of that work?  2 A  My recollection of that particular interview is that I  3 was phoning the Moricetown Band office about something  4 else.  Stanley Nikal, who I believe was chief  5 councillor at that time -- I guess I was talking to  6 him about something else -- he volunteered this  7 information or the conversation went to that, I made a  8 note of it and filed it, and that's how it got here.  9 Q   Okay.  Now, is this method of -- when you're studying  10 a fishery management system, is this part of the  11 methodology that fishery scientists use?  12 A   Interviewing --  13 Q   That is, interviewing.  14 A   Interviewing people, interviewing participants in the  15 fishery, yes.  Interviewing people involved in the  16 management of fishery, yes.  Also administrators --  17 people involved in all aspects of the fishery.  18 MR. GRANT:  And why did you rely on the earlier interviews in  19 Exhibits 948, 949 and the later ones, tabs 14 and  20 following?  21 MR. GOLDIE:  Has he said those are the ones he relied upon?  I  22 thought he had not made that distinction.  2 3 MR. GRANT:  24 Q   I stand -- I'll -- why did you review those  25 interviews?  26 A   It was research leading towards the FMS report and  27 towards preparation of my opinion report.  28 Q   And did you rely on those?  29 A   Yes.  30 Q   As a basis for part of your conclusions?  31 A   That's right.  I -- I'd say I relied on these in part  32 in forming my conclusions.  The word order was a  33 little different the way you used it.  34 MR. GRANT:  My lord, I'd like to tender this document, Volume  35 3 --  36 MR. GOLDIE:  I object.  37 MR. GRANT:  -- as part of the methodology, the background  38 material of the methodology of the witness, and I'm  39 tendering it for that purpose.  40 MR. GOLDIE:  I object, my lord.  The report itself has not been  41 marked.  We do not know whether these interviews go to  42 matters which have been disallowed.  It is irrelevant.  43 The witness has stated, "I rely upon them."  He's  44 relied upon other things.  He's relied upon what the  45 Department of Fisheries & Oceans told him target  46 estimates mean.  It adds nothing, unless in cross-  47 examination some particular challenge is made to it, 13941  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  Ruling by the Court  1 to determine -- to have these marked as exhibits.  2 THE COURT:  Mr. Macaulay.  3 MR. MACAULAY:  I don't see how they could be admitted in chief  4 through this witness.  What purpose do they serve?  He  5 can't -- are they being tendered for the truth of the  6 contents, for instance?  He can't say Mr. Smith told  7 me A, B, and C and here's my note of it and here is  8 the -- here is my note and I want it marked.  That's  9 not evidence.  That's hearsay, clearly hearsay.  10 THE COURT:  Mr. Grant said that he was tendering them as  11 evidence of the methodology of the witness in  12 preparation of his report, but I think I could read  13 from that in preparation of his evidence.  14 MR. MACAULAY:  Yes.  There's no reference in the report to these  15 interviews that I can recall, in the report itself.  16 THE COURT:  Let's take it that they are tendered as evidence  17 demonstrating not the truth of what's in them but the  18 methodology that the witness followed in the  19 preparation of his evidence.  2 0 MR. MACAULAY:  Well —  21 MR. GRANT:  Yes, I stand corrected on that point, my lord.  22 MR. MACAULAY:  The index can serve that purpose.  He can hand up  23 a list to your lordship saying here are the people I  24 spoke to, and here are the people whose reports I  25 read, and they all had -- said things concerning  26 fisheries to me, and that's the kind of thing I relied  27 on.  28 THE COURT:  All right.  Well, I'll ask you, Mr. Macaulay, and  29 then Mr. Goldie to respond to this:  What's the  30 difference between this and the practice that we  31 followed with so many of these expert witnesses where  32 they were asked about the material they relied upon in  33 preparing themselves to write a report or, as I think  34 is interchangeable, to give evidence and in those  35 cases, without objection, the other writings have all  36 been marked as exhibits, both in chief and in cross-  37 examination?  I have to say that I do not think these  38 documents can be admitted as proof of the truth of the  39 facts within them, and I don't see at the moment what  40 great amount of help, if any, they're going to be to  41 the plaintiff, but Mr. Grant wants them admitted on a  42 very specialized basis that he has stated, and my  43 question is:  What's the difference between what he's  44 asking now and what we've been doing with so many  45 other witnesses?  46 MR. MACAULAY:  These are by and large — well, they're all  47 statements by plaintiffs, by interested parties. 13942  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  Ruling by the Court  1 Every single one of those is a plaintiff or was a  2 plaintiff in the case of a few who have died.  They  3 are self-serving statements that have been relied on  4 by the witness.  In fact, it's the sort of thing you'd  5 expect the witness to be fully questioned on in cross-  6 examination, relying on that kind of material.  Not  7 just this witness, any expert witness.  I don't recall  8 ever -- ever having heard, in any other case I  9 appeared on as counsel, heard of, with the exception  10 of medical witnesses who give evidence as to what the  11 plaintiff told them on an examination, of this kind of  12 material being put in.  13 THE COURT:  Thank you.  Mr. Goldie.  14 MR. GOLDIE:  My principal concern -- well, first I should say  15 that, of course, they and hundreds like them are  16 available for use in cross-examination, and we have  17 many, many more.  My concern is with respect -- with  18 respect to the selection and the basis for the  19 selection.  If this is supposed to be -- support the  20 methodology, the witness has described the  21 methodology, and if he wants to have a sample, then I  22 would say one of the kind that he interviewed with  23 directly and one of the kind that he relied upon  24 others would provide that.  I -- I have not had an  25 opportunity of looking at these particular ones to  26 determine whether this selection has got some purpose  27 to it.  If it's methodology, one alone would do.  28 THE COURT:  What's the difference between this and the two big  29 books of statements that were admitted during the  30 evidence of Antonia Mills?  I don't remember if it was  31 in chief or in cross.  32 MR. GRANT:  It was in chief, my lord.  33 MR. GOLDIE:  I can't assist your lordship on that.  We can look  34 in the transcript and see what the circumstance was.  35 THE COURT:  I think it was without objection, as best I recall.  3 6 MR. MACAULAY:  I wasn't in court during that examination.  37 MS. MANDEL:  Well, my lord, that leaves you and I, and it was  38 without objection.  39 THE COURT:  I think it was without objection.  40 MR. MACAULAY:  Well, there is an objection now.  That's one of  41 the differences.  If it's only to show methodology,  42 the witness has described what he's looked at.  And a  43 nominal roll -- we've only got a few.  I think it  44 would be better to have him give a nominal roll.  45 MR. GRANT:  Well —  46 THE COURT:  Mr. Grant, I think what I'm going to do is I'm going  47 to have it marked as an exhibit for identification, 13943  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  Ruling by the Court  1 and I'll ask counsel if they want to review what was  2 done in some of the other situations and see if  3 there's a pattern.  I don't think that the course of  4 your examination will be hindered by that course,  5 particularly as I have no doubt that in any event the  6 documents cannot be admitted to prove specific facts  7 that may be stated in them, particularly, I suppose,  8 locations of fishing sites, which is what I assume is  9 the subject matter of the inquiry.  10 MR. GRANT:  Well, it goes to — yes.  I would just say that I  11 would ask your lordship's indulgence that if my  12 friends don't re-raise it, that then they would --  13 unless they re-raise it, that they be marked.  There's  14 no distinction between the documents from tab 15 on in  15 this book and Exhibit 948 and 949.  The distinction  16 between tabs 1 to 14, with the exception of number 13,  17 is that those are the interview notes of Mr. Morrell  18 himself, which is a different category, and, of  19 course, Dr. Antonia Mills could speak to that.  20 MR. MACAULAY:  I notice one of these —  21 MR. GRANT:  Hers were also put in -- her notes were also put in.  22 MR. MACAULAY:  One of these is an interview -- I just turned to  23 tab 3 at random.  It's an interview by Morrell and  24 Richard Daly, so it's not just Morrell.  25 MR. GRANT:  Yes, and Richard — there were notes of Richard  26 Daly -- Dr. Daly of this interview as well, and those  27 notes were disclosed to my friends.  28 THE COURT:  Well, I don't think I'll make a special order.  I  29 think I'll just have it marked as the next exhibit,  30 which I think is 974, for identification, and when  31 counsel are ready to argue the matter again, they can  32 do so.  As I say, I will have to be persuaded on two  33 points.  The first one is are they admissible at all,  34 and if so, for what purpose.  This will be 974 for  35 identification.  36 THE REGISTRAR:  And each tab marked, my lord, as 974 dash?  37 THE COURT:  No, the book with the 29 tabs can be the next  38 exhibit.  They don't need to be separately marked.  39 THE REGISTRAR:  Very good.  40  41 (EXHIBIT 974 FOR IDENTIFICATION - Document Book 3, 29  42 tabs, Interviews re Fish)  43  44 MR. GRANT:  The similar situation of course happened with Dr.  45 Daly, my lord, that interviews of a similar nature  46 were put in evidence as part of his methodology, and  47 also early witnesses, expert witnesses. 13944  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  Ruling by the Court  1 THE COURT  2 MR. GRANT  3 THE COURT  Yes, I believe that's so.  Yes, I think it's been the practice.  It's my recollection it was so much longer ago than  4 Dr. Mills.  5 MR. GRANT:  Now, Mr. Morrell, did you — I'd like to show you  6 the next map, which is Map 22.  7 THE REGISTRAR:  You haven't marked that map yet, Mr. Grant.  8 MR. GRANT:  I know.  9 THE REGISTRAR:  Okay.  10 MR. GRANT:  I'll come back to marking the other map in light of  11 Mr. Goldie's comments, my lord.  12 MR. GOLDIE:  I have others.  13 MR. GRANT:  14 Q   Oh, one thing, just if we could.  With respect to Map  15 23, is -- the narrative at the top, is that your  16 opinion?  Is that -- was that yours?  17 A   I wrote that, and it's my opinion.  18 MR. GOLDIE:  I object to certain parts of that narrative, my  19 lord.  20 THE COURT:  We're still on Map 23?  21 MR. GOLDIE:  We're -- I thought my friend asked the question  22 with respect to 22.  23 MR. GRANT:  No, it's with respect to Map 23.  24 MR. GOLDIE:  Well, I have an objection to the narrative at  25 tab — of Map 23.  26 THE COURT:  Yes, all right.  What's the objection, Mr. Goldie?  27 MR. GOLDIE:  The -- there is reference to plans for the future  28 management of the resource.  2 9 THE COURT:  Where do we see that?  Let me find it.  30 MR. GOLDIE:  We're talking about 23?  31 THE COURT:  Yes.  32 MR. GOLDIE:  Yes.  All right.  The second — the first column,  33 last paragraph:  34  35 "Stock-specific management would be much  36 more feasible if coastal harvest were  37 reduced enough to prevent overharvest of the  38 less productive stocks,"  39  40 and so on for the balance of that paragraph.  That, in  41 my submission, falls within your lordship's ruling  42 that a discussion of what the Department of Fisheries  43 does is irrelevant.  44 MR. GRANT:  Well —  45 MR. GOLDIE:  I am objecting to the references to the Gitksan and  46 Wet'suwet'en fishing grounds to the extent they  47 indicate ownership of fishing sites because in my 13945  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. Morrell (for Plaintiffs)  In chief by Mr. Grant  Ruling by the Court  submission these are argumentative and usurp the  function of the court.  And, of course, we have a  standing objection to the black outline on the map as  purporting to represent ownership.  THE COURT:  All right.  MR. GOLDIE:  And I should include in my comment about the  irrelevance of the observations about the way in which  the fishery is managed -- it is the second to last  paragraph in the first column, which starts off with  the words:  "At present most of the salmon harvest is  taken in coastal commercial fisheries..."  Last sentence:  "This makes stock-specific management  virtually impossible and practically ensures  overharvest of weaker stocks."  That may be the witness' opinion, but it's irrelevant  to this litigation.  Well, my lord, I --  I should hear from Mr. Macaulay first.  Certainly.  Yes.  Mr. Macaulay.  MR. MACAULAY:  I think Mr. Goldie has specified the objection I  have already made to the -- to this map on the  question of relevance.  It is not relevant to this  action whether -- what target escapements are, and  that's really what the map shows.  Target escapements,  my lord -- I mean escapements are theoretical figures  developed by the manager of the Skeena fishery, who is  the senior officer of the department stationed in  Prince Rupert, on the advice of his staff.  It plays  no part in this action.  It will not assist -- it will  not advance the case by one millimetre.  It neither  assists the plaintiffs in establishing their rights,  nor does it assist your lordship in understanding any  relevant thing about the fishery in the area claimed.  There may be some bits of information that are  marginally useful, but the map is intended to show  apparently quite a -- a very high proportion of the  total fish come from Babine Lake, which is outside the  area claimed.  That, of course, is an important thing  for the manager of a fishery to consider.  Now, none  of the plaintiffs have ever said that they consider  MR. GRANT  THE COURT  MR. GRANT  THE COURT 13946  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  Ruling by the Court  1 anything like that, though the hereditary chiefs, and  2 your lordship has heard for months, none of them  3 addressed and you wouldn't expect them to address  4 questions of how various stocks are to be handled in  5 some scientific way.  Now, Mr. Morrell, as a fish  6 biologist, would naturally be interested in that  7 subject, but it's a subject that's got nothing to do  8 with what we have to litigate here, the plaintiffs'  9 claim, or with the defences raised, the defences  10 raised by the Attorney-General of Canada.   It just  11 doesn't mean anything.  Those aren't actual fish.  12 These are -- those 981,060 fish that start at the  13 bottom of the map are not fish that are actually  14 swimming up the river.  They are a target, and there  15 is a pious hope that some day that many fish will swim  16 up the river free and clear of all encumbrance, that  17 is, leaving aside the fish that may be caught by  18 the various bands and by the sports fishermen.  19 THE COURT:  Well, is it not an admission on the part of the  20 Federal Crown that they expect at least that many  21 fish?  22 MR. MACAULAY:  No.  No, it isn't an admission.  They hope some  23 day to have that many fish.  24 THE COURT:  Well, an admission of a projection.  2 5 MR. MACAULAY:  Well, we'll be glad to admit that they're  26 projections and give your lordship the figures.  2 7 THE COURT:  Yes.  28 MR. MACAULAY:  We don't quarrel with the figures particularly.  29 Those are the figures.  But it's not relevant to this  30 action.  It's relevant to the question of management  31 of the whole Skeena watershed fishery.  That's what --  32 that's the question that this addresses.  33 THE COURT:  Well, I think I take a slightly broader view of the  34 matter than your submission would indicate, Mr.  35 Macaulay.  It seems to me that the evidence that I'm  36 hearing from this witness is relevant, at least that I  37 have heard thus far is relevant, to the general  38 question of the culture of the plaintiffs.  They have  39 made it abundantly plain in their evidence that salmon  40 is a very substantial tangible and intangible part of  41 their culture, and for that reason I don't have any  42 difficulty with the evidence of the bar graphs and the  43 numbers associated with them that I have heard,  44 because even though they do not relate to actual  45 numbers of fish swimming up the various rivers, they  46 indicate a reasonable prospect that there are a great  47 many more than those numbers coming into the estuary 13947  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  Ruling by the Court  1 reflecting an outflow from or through the territory at  2 an earlier time, and they give some indication of the  3 magnitude of the resource, and so I don't have any  4 trouble with the relevance of these numbers, and I  5 haven't heard a serious objection from the defendants  6 about that.  I am now faced with objections to  7 specific language that relates to salmon management or  8 the management of this resource, and I have to say,  9 Mr. Grant, although I haven't heard you on this yet,  10 that I am troubled about what relevance that has in  11 view of the ruling I made yesterday, and I have to  12 try, awkward as it sometimes is, to bring some modicum  13 of consistency to the admissibility of evidence.  What  14 difference does it make to you to know -- for me to  15 have before me in evidence Mr. Morrell's very, very  16 general criticism of the present system of salmon  17 management?  I've heard some evidence that's very  18 complimentary to it.  19 MR. GRANT:  Well, it's not — that's right.  20 THE COURT:  At least to the results.  I wouldn't expect that  21 anyone would ever agree entirely with everything  22 that's done.  That's not the way the world works any  23 more.  But what does it really matter to you whether I  24 have that particular observation before me or not?  25 MR. GRANT:  As I said yesterday, my lord, is that the focus of  26 this witness' evidence is on the nature of the Gitksan  27 and Wet'suwet'en fisheries management.  The witness in  28 his statement says on the paragraph that starts at the  29 bottom of the first column and the end at the top of  30 the second:  31  32 "The Gitksan and Wet'suwet'en fishing grounds  33 on the Skeena mainstem and tributaries are  34 well located for this type of selective  35 harvest."  36  37 That's a conclusion that he has arrived at, and he  38 explains in the earlier paragraph about the  39 escapement.  Now, target escapement here, he has  40 explained we're talking about capability.  So what  41 he's -- this is one -- this is one of -- one base  42 amongst many bases as to how the witness concludes --  43 why he concludes the Gitksan and Wet'suwet'en fishing  44 grounds on the Skeena mainstem and tributaries are  45 well located for this type of selective harvest, and  46 he shows that through the diversion of the  47 different -- the capabilities of the different 13948  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  Ruling by the Court  1 systems.  The witness in talking about the feasibility  2 of stock-specific management if coastal harvest were  3 reduced enough to prevent overharvest of less  4 productive stocks, and if remaining harvestable  5 surplus of stronger stocks were taken in inland  6 fisheries, where opportunities exist to harvest strong  7 stocks without endangering weak ones, that statement  8 is an explanation in -- and a partial explanation of  9 the conclusion he comes to, which is very relevant to  10 his evidence, which is that the -- it's not a question  11 that DFO is bad and someone else is good.  That's not  12 what we're talking about here.  We're talking about  13 fisheries management, and the witness is going to give  14 opinion evidence as to the nature of the Gitksan and  15 Wet'suwet'en fisheries management, and this data here  16 is one of many bases upon which he forms his  17 conclusions.  And he is making the contrast as to  18 the -- the -- when you talk about the Gitksan and  19 Wet'suwet'en fishery management, how it works, the  20 question of whether or not it's easier or more  21 difficult, assists you in understanding how it works,  22 and we're talking about the Gitksan and Wet'suwet'en  23 fishery management.  There is no question, and I think  24 it's been clear, that there's another aspect of  25 fisheries management on the Skeena River system, which  26 is the fisheries management of the Department of  27 Fisheries & Oceans, which is a mixed stock fishery  28 focused at the coast.  The witness could have  29 contrasted it with some other -- could contrast it  30 with some other fishery somewhere else, but in order  31 for him to explain it in the context of what is known,  32 he is referring to that stock specific to the coastal  33 harvest.  34 And the other point is, my lord, is that from the  35 data you've already seen and other data that I'll come  36 to in terms of other fisheries is what's relevant, and  37 I believe that you did not rule against this, was the  38 impact of the coastal fishery on the Gitksan and  39 Wet'suwet'en only to the point of on the management of  40 that system.  And it would be, I would say, naive in  41 the extreme for the witness to ignore in his analysis  42 of the Gitksan and Wet'suwet'en fishery a fishery that  43 takes up well over -- well over half of the available  44 stock that -- that's being used by both of these --  45 these fisheries, that is, the Gitksan-Wet'suwet'en on  46 the one hand and the coastal, for example, on the  47 other. 13949  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. Morrell (for Plaintiffs)  In chief by Mr. Grant  Ruling by the Court  THE COURT:  Well, I must say, Mr. Grant, I think we're spinning  our wheels over something that doesn't help you and  doesn't hurt the defendants in any serious way.  I  don't need all this evidence to satisfy me that when  you live on the banks of a river where at least  981,000 salmon are expected to go by that you're well  located in order to catch some of them.  It's like the  old case of the R.C.M.P. when the lady was lying in  the middle of the floor with her throat slit and  there's blood all over the floor that they brought an  R.C.M.P. officer from Saskatchewan to prove that it  was probably human blood.  I mean, aren't we just  beating the obvious to death here?  MR. GRANT:  Well, this is what concerns me.  Well, my lord, I'm  not -- I didn't intend to spend a great deal of time  on what I saw was the obvious.  I want this witness to  talk about the management -- the fisheries management  system.  However --  THE COURT:  That's where you have trouble with your friends,  because it's largely terminological.  Your friends  don't agree that it is management.  They say it's the  ordinary course of life.  It's the use of the word  "management" I think that's causing all the trouble.  MR. GRANT:  Well, I mean —  THE COURT:  You see, I'm not sure that it matters whether the  Gitksan managed the fish or not -- or the fishery.  MR. GRANT:  Well, I think —  THE COURT:  What difference does it make?  They're there, and  they catch them.  MR. GRANT:  But I submit, my lord, that it is relevant for you  to understand the Gitksan fishery, whether they do  manage them.  It's one thing if they -- if they're  there and they catch them and that's all that there is  to be said, and I agree in that case there's no need  for a whole body of this evidence, but the very point  that the plaintiffs are endeavouring to demonstrate  and that this witness can give opinion evidence with  respect to is that there is a management system which  goes to the issues of the nature --  THE COURT:  Why don't you lead that evidence from the witness,  and why don't we forget about these three or four  little sentences here that we're having all this  trouble over, and let's get the evidence in the way  that isn't objectionable, as this is, and then decide?  I'm going to reserve on the objection.  I'm not going  to strike this out at the moment.  I'm not going to  mark the map.  But why don't you -- why don't you 13950  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. Morrell (for Plaintiffs)  In chief by Mr. Grant  Ruling by the Court  call -- why don't you adduce the evidence that you  want on what you call management, and I'll hear your  friends' objections as we go along.  My present view  is that salmon have an important role to play in the  life of the Gitksan and the Wet'suwet'en.  I haven't  any doubt about that.  The argument, it seems to me,  is one of -- is management, as lawyers would say, de  facto and management de jure is probably the only  distinction between them, but that may be over-  simplistic?  Of course, the question of management de jure I  think is -- in the sense that that is a component of  jurisdiction is a question for your lordship, and  that's -- but it's the existence of the management  within the system, and the evidence of that --  I'm not going to admit these statements at the  present time.  I think you ought to get on with the  evidence you want to adduce from the witness, and  we'll see how -- let's see how we get along.  I will come back to it and come back to Map 22 as  well later, my lord.  My lord, what I intended to do was to refer to  certain parts of the opinion at tab 1 as a method of  expediting or covering areas of evidence with respect  to the management.  This is in Volume 2?  It's Volume 2, tab 1, page 4.  Now, at the very  bottom of that page, the second last line, you state  that Gitksan and Wet'suwet'en --  Well, my lord, I have objected to this.  What's  this got to do with Mr. Morrell's ability to tell your  lordship what he saw?  Why is it necessary to talk  about Gitksan and Wet'suwet'en traditional laws  continue today to regulate the Indian fisheries?  Why  can't he tell us what it is that he saw on the river?  That's a good question, Mr. Grant.  He's an expert witness.  He's not just giving his  observations.  Yes.  But, you see, you've got us into the position  where you've put forward a report, it's been objected  to, and I have ruled against it.  I have not ruled  against your calling the evidence, but when you go  back to the report, you immediately set the alarm  bells ringing because you're seeking to put in  indirectly what I have ruled you cannot put in.  It  seems to me that in view of the very adversarial  position we're in right at this moment that the best  THE COURT  MR. GRANT  MR. GOLDIE:  THE COURT  MR. GRANT  THE COURT 13951  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. Morrell (for Plaintiffs)  In chief by Mr. Grant  Ruling by the Court  thing to do is to ask the witness for his evidence.  MR.  GRANT:  Q  I'll approach it another way, my lord, in light of  what was just said.  Mr. Morrell, I'd like to ask you as a fishery  scientist is the analysis of the regulatory regimes  part of the study of fisheries science?  Yes.  Okay.  Did you conduct such an analysis of the Gitksan  and Wet'suwet'en fishery?  Yes.  Can you explain how you did that, what you -- what you  did to determine and conclude the nature of the  Gitksan and Wet'suwet'en regulatory regime?  In the course of monitoring the fishery I made many  observations of the fishing as it was conducted on the  river.  That was between 1979 and 1985?  Five years of field work as previously detailed.  Okay.  In addition, in preparation of various reports I  reviewed interviews with Gitksan and Wet'suwet'en  people knowledgeable about the fishery, involved in --  in fishing and fisheries administration.  I made maps  of where people fished.  I looked at maps made by  other people of where people fished.  Q   Did those include maps made by Glen Williams and Alec  Morgan?  A   Yes.  THE COURT:  I'm sorry, who were those?  MR. GRANT:  Glen Williams and Alec Morgan.  THE COURT:  Yes.  THE WITNESS:  I conducted interviews myself specifically to --  to learn about aspects of the fishery management  system of the Gitksan and the Wet'suwet'en.  I believe  that's a -- those are certainly sources that I used in  forming my opinion.  A  Q  A  Q  A  Q  A  Q  A  MR.  GRANT:  Q  Okay.  Now, what did you conclude about the regulatory  aspects of the Gitksan and Wet'suwet'en system?  A   I concluded that access to the fishery was -- was very  tightly regulated, that --  THE COURT:  When you say access to the system, you mean access  to the fish?  THE WITNESS:  Access to the fishing sites, the places where fish  could be taken.  It was clear to me from early in my  field work that fishers were not distributed randomly 13952  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  Ruling by the Court  1 over the river, that people were not fishing wherever  2 there was a place to put a net in, that the same  3 individuals and families fished at the same locations  4 repeatedly.  There is a pattern.  5 MR. GRANT:  6 Q   You said fishers were not at the same location?  You  7 said fishers were not --  8 A   Fishers.  9 Q   Yeah.  Okay.  No, I just wanted to be sure I heard you  10 right.  11 A   Yeah.  12 Q   Go ahead.  13 A   In the course of that work people talked to me a good  14 deal about what they were doing, how they understood  15 what they were doing, why they were doing what they  16 were doing.  In the course of discussions like that  17 people explained to me that there were laws regarding  18 how the fish should be handled, for instance, that  19 fish taken should be -- should be utilized, that parts  20 of the fish that couldn't be utilized should be  21 disposed of in a prescribed manner, that there was a  22 relationship between the way people treated the fish  23 and the future well-being of the fish populations, in  24 other words, that fish are to be treated properly if  25 they are to continue to return.  The way this was most  26 frequently expressed to me was, "We respect the fish."  27 People talked to me about the -- the responsibilities  28 of chiefs in -- in regulating access to the fishing  29 grounds.  In other words, people would say to me we  30 don't just -- we don't just -- for example, "We don't  31 just fish anywhere.  I'm fishing here because I own it  32 or because I have permission of the person who owns  33 it," "it" being the fishing ground.  It was explained  34 to me that the -- that the chiefs responsible for the  35 fishing grounds were responsible for protection of --  36 of the fish at other times in their life cycle, that  37 the people responsible for territories in the  38 tributary systems where the fish spawn were  39 responsible for maintaining the quality of the  40 spawning grounds that the fish used, the areas where  41 the young fish reared.  Those are all examples of  42 laws, elements of the -- of the regulatory system that  43 I became aware of.  44 MR. GOLDIE:  Excuse me, I take it what the witness is saying,  45 those are all examples of what he was told?  46 THE COURT:  Yes.  That's what I'm hearing so far.  4 7    MR. GRANT: 13953  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  Ruling by the Court  1 Q   Did you observe?  2 A   Yes.  3 Q   Go ahead.  4 A   Is it for me to speak to that?  5 Q   No, no, don't.  6 A   Okay.  7 Q   Don't.  Did you observe the applicability or the  8 application of these laws yourself, and I'll go to  9 each of them?  10 A   In many cases I did.  11 Q   Okay.  Did you observe that fish that were taken were  12 utilized?  13 A   Yes.  14 Q   Did you observe the treatment of fish after they were  15 taken, that is, both the methods of preservation and  16 the manner of preservation?  17 A   The processing, the handling of offal, yes.  18 Q   And how was -- how did you observe offal being  19 treated?  20 A   I've seen people -- Johnny Wilson, in particular, he  21 could drive to his fishing ground, to his fishing site  22 at Four Mile Canyon.  He hauled his fish in wash tubs.  23 The fish that he had caught he took away from the  24 fishing site in wash tubs.  He returned.  When he came  25 down to the fishing site coming from his home,  26 presumably where his smokehouse was, he would return  27 with waste parts of the fish in the wash tubs, and  28 those -- the offal was returned to the river.  2 9 Q   Have you --  30 A   Okay.  31 Q   Okay.  Have you observed -- is that -- have you  32 observed the -- you said you were told fish are to be  33 treated properly if they are to return.  Have you  34 observed examples of that?  35 A   The disposing of unused parts is part of the proper  36 treatment.  37 Q   Okay.  38 A   There are other ceremonial aspects of treating the  39 fish with respect that I have -- that I've heard about  40 and I've -- I would say that I have observed as well.  41 Q   Okay.  Now, just a moment.  There has been evidence  42 given in this case of a first salmon ceremony.  Is  43 that -- have you observed -- you're familiar with --  44 you've been told about the first salmon ceremony?  45 A   Yes.  46 Q   Have you observed any examples of the first salmon  47 ceremony personally or a modern rendition of it? 13954  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  Ruling by the Court  1 A   Yes.  In the spring and summer of 1980 I lived in  2 Perry Sampson's house at Glen Vowel1, Sikadoak.  While  3 I was there in early spring one day Walter Wilson,  4 who's Perry's brother-in-law, arrived.  5 Q   He's married to Perry's sister; is that right?  6 A   That's right.  7 Q   Go ahead.  8 A   He arrived with -- with some salmon steaks, some cut-  9 up portions of spring salmon, chinook salmon.  There  10 was enough for all of the members of the family and  11 me.  We -- there was a festive atmosphere.  Everyone  12 was -- was happy.  Walter was warmly thanked, and  13 there was discussion of this being the first spring  14 salmon that we had -- that we had had to eat that  15 year.  16 Q   What time of year was it in relation to the fish  17 runs?  18 A   It was early in the season.  Walter Wilson habitually  19 fishes early when there are very few fish running,  20 catches are low.  He's -- most of his catch is chinook  21 salmon at that time, and that's what he's fishing for.  22 Q   And do you know where he fishes?  23 A   He -- he fishes at various places.  At that time of  24 year he fishes on the -- the left bank.  In this case  25 it would be the east side of the Skeena, downstream of  26 Hazelton by about a mile or two, at a location where  27 the early run of chinook salmon that ascends the  28 Bulkley is available.  At other times of the year he  29 fishes in the Skeena mainstem above Hazelton or in the  30 Bulkley River proper.  31 Q   Okay.  And on Map 22 you located or marked on Map 22,  32 the fishing site map, where that location is?  33 A   I believe it's on that map, yes.  34 Q   Yes.  Okay.  I'll come back to that.  35 A   Okay.  36 Q   Was there anything distinctive about Walter Wilson  37 bringing these salmon steaks at this time and other  38 occasions when you've seen fish given out?  39 A   Normally -- other occasions that I have observed fish  40 given they are given whole, generally not dressed.  41 It's unusual for cut-up fish to be given.  That's not  42 the normal way of giving someone fish.  43 Q   Now, is the -- you had indicated that you were told of  44 ceremonies.  Were you referring to the first salmon  45 ceremony?  46 A   That's right.  47 MR. GRANT:  Now, you've also said that you were told about the 13955  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  Ruling by the Court  chief is responsible  THE COURT  MR. GRANT  THE COURT  Should we resume this at two o'clock,  Oh, yes, my lord.  All right.  Thank you.  Mr. Grant?  THE REGISTRAR:  Order in court.  Court will adjourn until 2:00.  (PROCEEDINGS ADJOURNED AT 12:30 P.M.)  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  I hereby certify the foregoing to be  a true and accurate transcript of the  proceedings herein to the best of my  skill and ability.  Leanna Smith  Official Reporter  United Reporting Service Ltd. 13956  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. MORRELL (for Plaintiffs)  In chief by Mr. Grant  Ruling by the Court  (PROCEEDINGS RECONVENED AT 2:  00 p.m.)  THE REGISTRAR:  Order in court.  THE COURT:  At -- during the luncheon adjournment I was  authorized by the Minister of Justice to inform the  judges of these courts that Chief Justice McLachlin  today has been appointed to the Supreme Court of  Canada.  And having been authorized to tell the court,  I'm sure I'm authorized to tell counsel, if they don't  already know.  GOLDIE:  Convey to her ladyship our best wishes and  congratulations.  COURT:  Certainly, Mr. Goldie.  GRANT:  Yes, on behalf of both counsel.  COURT:  Thank you.  All right.  Shall we get back to the  real world.  Mr. Grant.  MR.  THE  MR.  THE  MR.  MR.  MR.  MR.  MR.  GRANT:  Q   Before the luncheon break, Mr. Morrell, you referred  to an incident regarding Walter Wilson, Djogaslee, one  of the Gitksan chiefs; that's right?  A   That's right.  Q   And an incident where he gave salmon to Perry Sampson,  his brother-in-law, at the time of the first spring  salmon run.  You described that Mr. Wilson fished in  different locations, and I'm just going back to  something you were talking about earlier this morning  where there are strategies of fishermen, Gitksan and  Wet'suwet'en fishermen, using different sites.  And I  would like to refer you to, for this purpose, to map  22 which is the fishing sites map, just so that his  lordship will have an appreciation at this point of  where you were referring to that Mr. Wilson goes for  the spring salmon fishing that he fishes at.  GOLDIE:  The map suggests the answer, my lord.  Can't he be  asked where he goes without referring to the map?  GRANT:  Well, the map doesn't suggest the answer.  It has  numerous sites and many sites under the name  Dj ogaslee.  GOLDIE:  Of course.  That's my very point.  GRANT:  Q   Well, before you go on, maybe what you can do is  describe where it is?  A   I described the location earlier.  Q   And that was downstream of Hazelton on the left bank?  A   On the left bank.  Q   And the left back is facing downstream?  A   That's right. 13957  M. MORRELL (for Plaintiffs)  In chief by Mr. Grant  Ruling by the Court  1 Q   Okay.  Is it marked -- is that site marked on this  2 map?  3 A   Yes.  4 Q   Can you indicate it to the court?  5 A   It's on the -- at that point I guess it's the south  6 bank of the Skeena opposite a small lake on the map.  7 There is a label with a line pointing at the dot  8 representing the site and the name associated with  9 that is Anoodim Saxwhl Giist.  10 Q   A-N-O-O-D-I-M, S-A-X-W-H-L, G-I-I-S-T.  Now, do you —  11 does Mr. Wilson at different times -- I believe you  12 indicated he goes to other sites or other areas of the  13 river to fish?  14 A   That's right.  15 Q   And where are they located, if you can just describe  16 to the court geographically, first of all?  17 A   Okay.  I've observed Mr. Wilson also fishing in the  18 Four Mile Canyon area and in the Bulkley River proper,  19 near the Gitanmaax Reserve, also near the mouth of  20 Mission Creek -- it's called in English -- a creek  21 entering the Bulkley from the south in the  22 neighbourhood of south Hazelton.  23 Q   Okay.  Now, the Four Mile Canyon sites -- first of  24 all, when -- in terms of fish runs, what timing does  25 he utilize to go from this one that you've marked --  26 or the one that you indicated downstream of Hazelton  27 on the Skeena, to these other sites?  28 A   In all the years of my field work in which I've  29 observed Walter Wilson fishing, he begins his fishing  30 in early May at the Skeena site downstream of  31 Hazelton.  32 Q   Yes?  33 A   Later --  34 Q   What species are running at that time?  35 A   Chinook is the target species at that time of year.  36 There are also, over winter, steelhead in the winter.  37 Q   Okay.  38 A   Later in the season during the sockeye run, I have  39 observed him fishing in the Four Mile Canyon area,  40 both in -- on the left bank in a very large eddy below  41 the narrow part of the canyon in the vicinity -- in  42 the area known generally, to my understanding, as  43 Gwinwilaat.  44 Q   Okay.  Can you just refer on the map -- there is a  45 detail on the map of Four Mile Canyon sites.  Four  46 Mile Canyon is upstream of -- it's on the Skeena River  47 upstream of Hazelton and downstream -- just below Glen 1395?  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. MORRELL (for Plaintiffs)  In chief by Mr. Grant  Ruling by the Court  Vowell or Sikadoak; is that right?  A   That's right.  Q   That's the geographic location?  A   It's the canyon where the Kispiox Road crosses the  Skeena.  Q   Okay.  That's not the suspension bridge?  No.  It's not the suspension bridge?  No.  Yes.  The first bridge going to Kispiox, my lord.  Yes.  THE COURT:  THE WITNESS  THE COURT:  THE WITNESS  THE COURT  GRANT  COURT  GRANT  Q  MR.  THE  MR.  MR.  THE  MR.  THE  MR.  MR.  Okay.  You have the detail there, the detail of that  map.  Can you just indicate where he fishes in that  Four Mile Canyon area?  A   Okay.  If you locate the highway bridge at the narrow  part of the canyon, move downstream, that is to  your -- to your right on the map, following the left  bank of the river you pass one, two, three, then the  fourth fishing site indicated by an open circle there,  is labelled Gwinwilaat.  Q   G-W-I-N-W-I-L-A-A-T.  It's all one word, for the  record.  A  And to my understanding, that name refers to a large  area from the point indicated by the open circle on  the map, on down around the -- you can see that the  river widens abruptly at that point.  That's what I  meant by the bottom end of Four Mile Canyon.  Still  following the left bank around -- just below the "N"  in the name Nikat'een there is a little point.  That  sort of forms an eddy within the eddy, and Walter  Wilson has set a net there during the sockeye season.  THE COURT:  I haven't figured out what the difference is between  red and black ink.  Black ink is the names of sites.  Oh, and red is the owner.  And red ink is the names of the house that owns the  site.  Yes.  Or  GRANT  COURT  GRANT  COURT:  GOLDIE  GRANT:  Q  Yes, thank you.  is alleged to own the site.  Yeah.  And this is -- this terminology, of course, is  similar to what was dealt with with Dr. Daly, in terms  of the Gitksan system.  It's, of course, not  precluding the court's decision, of course. 13959  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. MORRELL (for Plaintiffs)  In chief by Mr. Grant  Ruling by the Court  Maybe you can just put an X where you are  referring to there on the exhibit in the Four Mile  Canyon.  Highlight as to where his -- you've seen him?  A   I'll put the X at the precise location where I've seen  the net.  Q   Yes, that's right.  A   I'm putting the X on the end of the point to which the  nets attached.  You followed that point -- the location, my lord?  Yes.  MR. GRANT  THE COURT  MR. GRANT  Q  Now, from a fisheries management point of view, in  terms of how a fishery is used, is there any  significance between his selection of these two  locations at these two times of the year?  A   Yes.  Q   Can you explain that?  A   Early in the season there is an early run of chinook  salmon proceeding up the Bulkley River to spawning  grounds in the upper part of the Bulkley system.  To  get to those spawning grounds those fish have to come  up the Skeena to the confluence of the Bulkley and  then they ascend the Bulkley, so they are available to  nets below Hazelton but not above Hazelton.  People  fishing for chinook salmon early in the season, there  is an active early season fishery for chinook below  the Bulkley in which Walter Wilson was participating  at the time of the incident I was recounting,  similarly at Kitsegukla.  Fish from those fisheries  are distributed throughout the territory from  Kitsegukla to Moricetown, from Kitsegukla and the  sites just below Hazelton into the upper Skeena  villages.  Later in the season, when the sockeye run begins,  the bulk of the sockeye run is proceeding to Babine  Lake, and therefore there is little difference in the  availability of sockeye below Hazelton and above  Hazelton in the Skeena.  Also, by then the water has  dropped somewhat and fishing conditions at the site  below Hazelton are not -- it's not such a good place  to fish at that time and Gwinwilaat becomes a superior  site, both in terms of fishing ability and  availability of fish.  Q   So this is an example of a fisherman's strategy that  you've -- that you've been describing earlier?  A   That's right.  Q   Now, I just wanted to go back to what you were talking 13960  M. MORRELL (for Plaintiffs)  In chief by Mr. Grant  Ruling by the Court  1 about earlier today -- I mean just before lunch which  2 was these laws, and I was -- one of the laws that you  3 indicated you had been told about was that access to  4 fishing sites is strictly controlled?  5 A   Yes.  6 Q   And I wondered if you made any observations of how  7 that occurred?  I should say observations of the  8 control of access to fishing sites?  9 A   Okay.  I believe it was in 1980 when I was conducting  10 field work on the upper Skeena and I was the only  11 staff member of the fish management study.  During the  12 sockeye run, that would place it in July, probably, a  13 fisherman named Robert Mowatt, belongs to the House of  14 Woosimlaxha.  15 THE COURT:  I think Madam Reporter will need a spelling for  16 that.  17 MR. GRANT:  18 Q   Yes.  Woosimlaxha, W-O-O-S-I-M-L-A-X-H-A.  Go ahead.  19 A  Maybe I'll tell the story first and then we can get  2 0 the names.  21 Q   Well, she needs it as we go.  22 A   Yes, I understand that.  I'll try to avoid the names.  23 I'll use English names.  24 Robert Mowatt installed a net pole just  25 downstream of the place where Agnes Travers and her  26 husband Gordon Travers fished regularly.  Effectively,  27 they were -- the place where Robert Mowatt put his  28 net, effectively cut off fish that would have been  29 headed for the Travers' net just upstream.  In  30 fisherman's parlance, he corked them.  Agnes Travers,  31 who is related to Ellen Woods, spoke to me.  I  32 happened to be there when she first observed this net  33 in place.  She was quite angry and told me she was  34 going to speak to Ellen Woods about it.  Ellen Woods  35 is the mother of James Woods Junior who at present  36 holds the name of Nikat'een, N-I-C-A-', I believe,  37 T-E-E-N.  38 The next time I visited the site, Robert Mowatt's  39 net wasn't there; the pole was still there.  The pole  40 stayed throughout the season.  I observed Robert  41 Mowatt fishing in other places but I never again saw  42 him fishing in that site.  43 Q   Okay.  44 A  And I assume that he was told not to fish there.  45 Q   Nikat'een is N-I-K-A-T-'-E-E-N.  46 Did you observe protection of the habitat?  47 This -- I'm referring to where you say that a chief is 13961  M. MORRELL (for Plaintiffs)  In chief by Mr. Grant  Ruling by the Court  1 responsible for fishing grounds, where at different  2 times -- where fish go at different times in their  3 life other than the harvest time, so I presume you are  4 talking about, for example, spawning grounds within  5 the chief's territory?  6 A   That's right.  7 Q   Yes.  All right.  Did you observe actions of Gitksan  8 and Wet'suwet'en in protection of the habitat?  9 A   Yes.  I believe it -- I'm not sure if it was fall or  10 spring.  There was a proposal by the B.C. Forest  11 Service to extend the Kispiox Valley Road, the portion  12 of the road identified as the Kispiox Forest Access  13 Road, I believe, from where it then ended in the upper  14 Kispiox Valley further along the Kispiox River into  15 the vicinity of Stephens Creek in order to log a patch  16 of mature spruce that was threatened by beetle  17 infestation.  18 Q   Okay.  What's the significance, from a fisheries'  19 point of view, of Stephens Creek watershed?  20 A   The vicinity of -- Stephens Creek is the principal  21 sockeye spawning tributary of the Kispiox River, also  22 the main stem Kispiox in that vicinity is used for  23 spawning by chinook salmon, by coho, also by  24 steelhead.  It's used for rearing by all three of  25 those species.  So four species of salmon -- three  26 species of salmon plus steelhead trout all used that  27 area.  28 Q   Okay.  29 A  And being just beyond the extent of the road it's also  30 essentially the beginning of the wilderness portion of  31 the headwaters of the Kispiox River.  32 Q   Okay.  Without describing all of the details of it,  33 what I would like you to say -- explain, is what did  34 you observe the chiefs -- or chief or chiefs do --  35 A   Okay.  36 Q   -- with respect to that, that has a bearing on the  37 protection of the habitat?  38 A   Okay.  A number of the chiefs at Kispiox were alarmed  39 about the prospect of the road being extended.  I was  40 informed about it, made a visit to the site, looked at  41 the road construction as it had gone to that point.  42 It looked quite bad and dangerous to me; it was over  43 unstable terrain.  This was just confirming what I had  44 been told.  The upshot of the matter was that the  45 chiefs, through the tribal council, asked for a  46 meeting with the ranking representative of the B.C.  47 Forest Service in the area to register their concern, 13962  M. MORRELL (for Plaintiffs)  In chief by Mr. Grant  Ruling by the Court  1 and the result of that meeting was that the road plans  2 were abandoned; the project didn't go ahead.  3 Q   Just one question on what you said.  You said that you  4 thought you observed and you saw it was quite  5 dangerous.  What do you mean?  You mean the road was  6 dangerous or --  7 MR. GOLDIE:  That's what he said.  8 A   Dangerous to the fish.  Threatened the fish habitat,  9 in my view.  I might add that the logging -- that the  10 layout of the logging shows --which I snowshoed with a  11 friend -- there was snow on the ground -- I can't  12 remember if it was spring or fall.  I think it  13 probably was early spring.  I went through the area,  14 the logging layout was in low-lying swampy ground  15 immediately adjacent to the river, crisscrossed with  16 side channels.  High quality coho rearing habitat.  17 The main stem of the Kispiox at that point is small  18 and is quality spawning and rearing habitat for  19 chinook and steelhead.  20 Q   Now, I would like to ask you, in terms of the  21 administration of the fishing sites, you've stated or  22 given evidence that the sites -- there is a concept of  23 ownership of the sites controlled through the chiefs?  24 A   Yes.  25 Q   Now, did you see -- did you observe how people who  26 were active in the fishery behaved, that indicated  27 that to you, in terms of their selection of sites,  28 choice of places where they fished?  29 A   It's inescapable that different people fish at the  30 same -- at different spots, and that people are not  31 simply fishing at the best fishing location closest to  32 their home, for example.  People will -- people who  33 live near a good fishing site will travel many miles  34 to get to the place where they actually fish.  35 Q   Can you give some examples of that, that you observed?  36 A   George Wesley, who lived at Glen Vowell, would travel  37 down to Four Mile Canyon where he could cross the  38 river -- cross the river, proceed up the opposite side  39 of the Skeena on the Salmon River Road until he got to  40 the place where he fished on the upper part of the  41 Skeena, well above Kispiox Village.  Perhaps I can  42 indicate that on the map.  43 Q   Yes, please do so.  44 A   The village of Glen Vowell would be —  45 Q   It's labelled as Sikadoak?  46 A   I'm looking -- okay, I'm looking at the Skeena and  47 Kispiox River inset.  There is a creek that enters the 13963  M. MORRELL (for Plaintiffs)  In chief by Mr. Grant  Ruling by the Court  1 Skeena from the west just downstream from the site  2 labelled Gitwilgaliibax.  3 Q   G-I-T-W-I-L-G-A-L-I-I-B-A-X.  And it's the stream  4 that's right across from the "S" of Skeena on that  5 inset that you are referring to?  6 A   That's right.  7 Q   Okay.  That's the location of Glen Vowell?  8 A   Yes.  9 Q   Now, where would he have fished then?  10 A   His fishing grounds were on the opposite side of the  11 Skeena, that is, on the left bank, upstream.  The  12 precise location, I'm not -- I don't know these sites  13 by their Gitksan names.  The place that he fished is  14 near a spot referred to -- the local landmark is  15 called Slow Down Cabins, and they are in the  16 neighbourhood of -- there is an asterisk on the left  17 bank, near the word Xsan, X-S-A-N, and Slow Down  18 Cabins are somewhere in the vicinity of the -- of that  19 asterisk but on the opposite side.  20 THE COURT:  Aren't those asterisks on the right side?  21 THE WITNESS:  The asterisk is on the right bank.  22 THE COURT:  Yes.  23 THE WITNESS:  The place where George Wesley fished was on the  24 left bank.  25 THE COURT:  All right.  26 MR. GOLDIE:  Could he mark that.  2 7 MR. GRANT:  28 Q   Maybe you can mark that with a number -- or with a "G"  29 on the map, just where he -- approximately --  30 A   I'm marking a general location.  31 Q   Okay.  32 A   I'm assuming that his actual fishing place was one of  33 the -- one of the marked dots, I'm not sure whether  34 it's the upstream series or Gwinats'al.  The general  35 location I'm indicating is here.  36 Q   But that is -- may be one of the sites referred to as  37 Gutwinuxs or Antgulilibiksxw which are further  38 upstream on that same shore?  39 A   In fact, I believe that it is one of those same sites.  40 The reason I picked that location is it's near the  41 asterisk.  All I'm trying to indicate by this is that  42 he travelled a long distance to fish at the place  43 where he fished.  44 Q   Now, are there fishing sites -- good fishing sites  45 closer to George Wesley's -- where he lives?  46 A   Yes.  The open circle on the right bank immediately  47 upstream is a good fishing site. 13964  M. MORRELL (for Plaintiffs)  In chief by Mr. Grant  Ruling by the Court  1 Q   That's the one that -- at Gitwilgaliibax?  2 A   Referred to earlier, yes.  3 Q   G-I-T-W-I-L-G-A-L-L-I-B-A-X.  4 A  Also, in addition, on his way to the place where he  5 actually fished, he goes right by Four Mile Canyon  6 which there are several excellent fishing sites.  7 Q   Are there examples of other persons who travel some  8 distance to fishing sites, although there are good  9 fishing sites close to where they live?  10 A   There are many, many examples.  11 Q   Do you know Lloyd Muldoe?  12 A   Yes.  13 Q   Of Kispiox?  14 A   Yes.  15 Q   Okay.  Where does he fish -- he lives in Kispiox?  16 A   That's right.  17 Q   And where does he fish?  18 A   He fishes on the same side of the river as Kispiox,  19 upstream at the site labelled -- it would be  20 Anabiisxw, A-N-A-B-I-I-S-X-W.  21 Q   It's on -- it's on the --  22 A   On the right bank.  23 Q   Right bank, and it's on the inset although the label  24 is on the left bank with an arrow across?  25 A   That's right.  26 Q   Okay.  Have you found that, my lord?  And are there  27 fishing sites closer to where he lives than that?  28 A   Yes, there are fishing sites shown on the map that are  29 closer to the Kispiox Village which is at the  30 confluence of the Kispiox and the Skeena River.  31 Q   Now, this map that you've been referring to is a map  32 of fishing sites which was early -- is this the map  33 that you were referring to that the dot -- some of the  34 dots were transposed onto map 23 as to location --  35 generalized location of fishing sites?  36 A   That's right.  37 Q   Okay.  And did you participate in the preparation of  3 8 this map?  39 A   Yes, I did.  40 Q   The script at the top of this map was not written by  41 yourself?  42 A   That's right.  43 Q   Now, what involvement did you have in the preparation  4 4 of this map, map 22?  45 A   I was involved at many stages in collection of the  46 data that led to this map.  47 Q   Okay. 13965  M. MORRELL (for Plaintiffs)  In chief by Mr. Grant  Ruling by the Court  1 A   Let me start that at a low level of detail and ask me  2 further if you want more information.  Together with  3 Susan Marsden, I -- the two of us examined a large  4 quantity of data about fishing site locations,  5 ownership, history, and prepared drafts on topographic  6 maps primarily, sometimes on other maps, showing  7 locations, Indian names, and ownership of fishing  8 sites.  My particular contribution was to help Susan  9 assign map locations to sites identified in interviews  10 or other -- transcripts of interviews or other written  11 material, whose primary focus was the names and the  12 ownership of the sites.  I came to it with the maps  13 that I had made and that people working under me on  14 the fish management study had developed of the places  15 where people fished on the river in the contemporary  16 Indian fishery, and with my knowledge that I had  17 developed in the course of fishery -- of fishery  18 monitoring work on the contemporary fishery of the  19 rivers of the area.  20 Q   Can I just interject?  21 A   Yes.  22 Q   With respect to your monitoring of the contemporary  23 fishery on the river?  24 A   Yes.  25 Q   Did you cover the Skeena River within the territory  26 through personal observation at one time or another in  27 your monitoring?  28 A  Most of it, yup.  29 Q   Okay.  Aside from Kuldoe which is in the New Kuldoe  30 sites which are in the lower left-hand corner, did you  31 encompass or view all of these sites on the Skeena  32 River that are referred to on this map, either by  33 being at those sites at one time or another?  34 A   I've certainly -- let me tell you the parts of the  35 river that I've covered -- that I'm familiar with.  36 Q   Okay.  37 A  And where I have observed fishing, where I've mapped  38 fishing sites.  39 Q   Okay.  40 A  And when I say "mapped fishing sites", I mean  41 primarily mapped places where people are fishing in  42 the contemporary Indian fishery.  43 Q   Okay.  44 A   I've covered the river continuously from a place  45 called Pinenut Creek, which is a creek entering from  46 the left bank of the Skeena above Kispiox, just  47 upstream of the site labelled Anskaiis, 13966  M. MORRELL (for Plaintiffs)  In chief by Mr. Grant  Ruling by the Court  A-N-S-K-A-I-I-S.  That's on the inset?  On the inset.  Yes?  Let's see if I can find it on the other.  It's all right.  Just use the inset, that's fine.  Okay.  From that point, I've travelled --  Sorry.  It's a site on the left bank attributed to Wii  'mugulsxw?  Yes.  My lord, and the creek that's just upstream of that  site.  :  Yes.  Okay.  I've travelled many times in the course of the 1985  monitoring on each of the river boat surveys from that  creek down the Skeena past Hazelton -- I'll just  follow the Skeena at this point -- continuing down  past Kitsegukla, Kitwanga, further down the Skeena to  a place called, on the topographic maps, Klootch  Canyon, which I believe corresponds to the most  downstream dot -- black dot on the Skeena on this map,  the one labelled --  Xsugwink'aat'?  Yes.  :  X-S-U-G-W-I-N-K, underlined, 'A-A-T-'.  Thank you, my lord.  That's an area of the Skeena that I've covered  continuously by river boat.  In addition to the river  boat trips, I've visited many fishing sites in that  area via land access, driving in on foot.  On the  Bulkley River I've been by river boat on these same  surveys, although not on every one due to river  conditions, from the confluence of the Bulkley and the  Skeena up to the Hagwilget Bridge near the point  labelled Tsekya, T-S-E-K-Y-A, on the map.  That's the  suspension bridge.  In addition --  Just --  Okay.  That's where -- and on this map that's where there is  a fairly tight grouping of dots of fishing locations?  That's right.  Shown there?  And there is some asterisks indicating archaeological  evidence.  1  2  Q  3  A  4  Q  5  A  6  Q  7  A  8  Q  9  10  A  11  Q  12  13  THE COURT  14  MR. GRANT  15  Q  16  A  17  18  19  20  21  22  23  24  25  Q  26  A  27  THE COURT  28  MR. GRANT  29  Q  30  A  31  32  33  34  35  36  37  38  39  40  Q  41  A  42  Q  43  44  A  45  Q  46  A  47 13967  M. MORRELL (for Plaintiffs)  In chief by Mr. Grant  Ruling by the Court  1 Q   Okay.  2 A   In addition, using land access, I have visited many of  3 the other fishing sites on the Bulkley River upstream  4 of Tsekya, between Tsekya or Hagwilget and Moricetown.  5 Q   That's labelled -- Moricetown is labelled Kyahwiget on  6 this map, my lord.  7 THE COURT:  Yes.  8 MR. GRANT:  9 Q   K-Y-A-H-W-I-G-E-T.  10 A   In all of these travels, my specific concern has been  11 to identify contemporary fishing grounds and map them  12 and collect data on contemporary fishing.  13 Let's see.  In addition to the areas named,  14 I've -- back to the Skeena, starting, let's say, at  15 the -- at the Pinenut Creek where I indicated that was  16 my most upstream travel by river boat, there is a road  17 along the left bank of the Skeena at that point that  18 ultimately takes you to Kisgagas and beyond.  I've  19 travelled that road and gone on foot to many of the  20 fishing sites indicated on the map.  21 Q   Can I just ask, there are fishing sites upstream of  22 Pinenut on both the right and the left bank?  23 A   That's right.  24 Q   You indicated the roads on the left bank?  25 A   Yes.  26 Q   Have you observed the fishing sites on the right bank  27 from the opposite bank?  28 A   I've observed the right bank from the left bank.  I  29 can't recall ever seeing a net in any of those sites.  30 Q   On the right bank?  31 A   That's right, on the right bank.  32 Q   Go ahead.  33 A   In addition, I've flown that area once, specifically  34 looking for nets fishing the river, so I have seen the  35 river from -- I can't remember exactly where we  36 started the survey.  Certainly from the confluence of  37 the Kispiox River on up to the confluence of the  38 Babine River.  On the Babine River I've been to  39 Kisgagas.  On many occasions I've observed fishing  40 there, I've participated in mapping of the fishing  41 sites there, I've collected data on fishing in  42 Kisgagas.  4 3 Q   Um-hmm.  44 A   On the Babine River, David Green took me to the  45 ancient village site of Anlagasemdeex.  46 Q   That's labelled on the map as well, isn't it, right --  47 it's below Kisgagas? 13968  M. MORRELL (for Plaintiffs)  In chief by Mr. Grant  Ruling by the Court  1 A   That's right.  2 Q   Okay.  It's A-N-L-A-G, underlined, A-S-E-M-D-E-E-X,  3 underlined.  I'm sorry, Mr. Morrell.  4 A   Okay.  5 Q   Go ahead.  6 A   I haven't observed any contemporary fishing on the  7 Kispiox River.  I made one field trip to the lower  8 part of the Kispiox River with Russell Stephens and  9 Albert Tait, the former Delgamuukw.  10 Q   Did Albert Tait point out any fishing sites in that  11 area to you?  12 A   Yes, he did.  Including Agwat'in, an old weir  13 location.  14 Q   That's -- it's marked on the inset map on the Kispiox  15 River, A-G-W-A-T-'-I-N?  16 A   Yes?  17 Q   Okay.  18 A   I don't recall whether I mentioned Moricetown Canyon.  19 Q   You haven't yet.  20 A   Okay.  I've spent many hours sitting at Moricetown  21 Canyon observing the fishing.  I'm quite familiar with  22 the layout of the canyon, both above and below the  23 present Telkwa High Road Bridge.  I've observed the  24 gill nets fishing at the downstream end of the canyon,  25 I've also been at the canyon with a group of elders on  26 a visit, the purpose of which was to identify and name  27 the existing and old fishing sites at the canyon.  28 Q   What about the Hagwilget Canyon itself, you did say  29 you travelled up that far on the Bulkley?  30 A   Yes.  I've also been in there by land many times.  31 I've interviewed Alfred Joseph, spoken with Alfred  32 Joseph at the canyon.  He has indicated to me fishing  33 sites at the canyon that were used before the rock was  34 blasted.  And subsequently, I have walked down to the  35 canyon myself and noted the locations on the map -- on  36 a map and measured distances between sites, et cetera.  37 I've also monitored contemporary fishing in that area,  38 both above and below the actual canyon.  39 Q   Okay.  And there is an inset for Kitsegukla as well.  40 That's within the area, of course, that you indicated  41 you commuted many times by river boat.  Did you  42 observe the fishery and the fishing sites at  43 Kitsegukla?  44 A   Yes.  Both by river boat and by land.  I've stood at  45 many of the fishing sites there.  46 Q   And is there an indication in the Wet'suwet'en area of  47 fishing sites at MacDonald Lake?  Did you travel to 13969  M. MORRELL (for Plaintiffs)  In chief by Mr. Grant  Ruling by the Court  1 MacDonald Lake?  2 A   I have been at MacDonald Lake and in the chain of  3 lakes of which it's a part, Aldrich Lake or Loon Lake  4 and Dennis Lake.  The purpose of my trip was not to  5 observe fishing sites but I am familiar with --  6 familiar with the country.  7 Q   You indicated that you -- for example, Hagwilget  8 Canyon you marked out -- recorded the sites of fishing  9 sites on a map.  Did you use any coding in your  10 mapping, that is, when you were doing this work in  11 terms of location of fishing sites?  12 A   Let's separate the questions.  In -- I took notes when  13 I was making the measurements at Hagwilget.  14 Q   Yes?  15 A   That was -- in terms of all of the work that I did on  16 the fishery, that was quite minor, a matter of a day  17 or two.  In the course of my field work on the  18 contemporary fishery, it was very important to know  19 precisely where all of the fishing sites were and who  20 fished there so as to correlate, for example,  21 observations of net fishing when no one was around,  22 with interview information at which -- for example, I  23 would visit Lloyd Muldoe at his house and ask him when  24 he put his net in and what he had been catching and  25 what his plans were.  So in the course of that work, I  26 and other members of the fish management study,  27 systematically mapped all of the fishing sites that we  28 discovered and coded them with a number code, keyed to  29 locations and people who fished there.  30 Q   Why didn't you use the names, these Gitksan or  31 Wet'suwet'en names?  Why did you use numbers instead?  32 A  Well, numbers are convenient for data handling, for  33 putting into a computer.  At the time that I started,  34 I was overwhelmed by the complexity of the language  35 and was not even as comfortable with it as I am now  36 Numbers were the first thing that I thought of.  37 Q   And with respect to the -- I think I've already asked  38 you this, but with respect to the dots on map 23, you  39 transposed dots of general location to fishing sites  40 from this map to map 23?  41 A   The dots were transposed.  The person who did it was  42 the cartographer who made the map.  43 Q   Yes.  But you directed that -- you directed the  44 creation of --  45 A  We were in consultation while he was making the map,  46 yes.  47 Q   Okay.  In your opinion, do the dots indicating fishing 7 THE COURT  8 MR. GRANT  9 THE COURT  13970  M. MORRELL (for Plaintiffs)  In chief by Mr. Grant  Ruling by the Court  1 sites on this map in all of those areas that you  2 covered, reflect the location of those fishing sites  3 that you have observed?  4 MR. GOLDIE:  Well, is my friend's question this:  "Is this an  5 accurate depiction of contemporary fishing sites?"  Is  6 that what the question is?  I'm not sure.  No.  You had the personal observation in the question  10 which Mr. Goldie didn't include in his summary.  11 MR. GRANT:  12 Q   Okay.  Maybe I better go back a step.  13 What, in your opinion, did these dots on this map  14 represent?  15 A   They are a representation of what they say they are,  16 general fishing site locations of the Gitksan and  17 Wet'suwet'en.  18 MR. GOLDIE:  Well, the question, though, my lord, is as he  19 observed them, i.e., contemporary fishing sites.  20 THE COURT:  Well, I am not sure that he can say or not.  Mr.  21 Morrell, you can say that you -- that they represent  22 fishing sites that you have observed in some cases and  23 which you have been told about in others.  24 THE WITNESS:  I think that would be fair.  And then we could get  25 down to cases on each one.  2 6 THE COURT:  Yes.  2 7 MR. GRANT:  28 Q   Okay.  Were you responsible for the locating of these  29 dots on this map?  30 A   That's right.  31 Q   Okay.  32 MR. GOLDIE:  Well —  33 THE COURT:  You mean you were responsible for directing the  34 cartographer where to put the dots?  35 THE WITNESS:  Together with Susan Marsden —  3 6 THE COURT:  Yes.  37 THE WITNESS:  — I produced a draft map from which the  38 cartographer produced this map.  3 9 MR. GRANT:  40 Q   And your task in the production of the draft map was  41 the locations?  42 A   To be sure that the locations were correct, yes.  43 Q   Okay.  44 THE COURT:  Well, gentlemen, I think we can dance around this  45 for a long time.  It seems to me that we ought to  46 recognize that there is a problem arising out of the  47 number of different fishing sites, some of which the 13971  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. MORRELL (for Plaintiffs)  Ruling by the Court  Submission by Mr. Grant  witness can personally verify and some of which are  there because he was told about them.  And I am  disposed to have them marked, the maps, both of them  marked as exhibits; number 23 without the legend,  which has been so vigorously opposed.  MR. GRANT:  You mean without the commentary, my lord?  THE COURT:  Yes, without the commentary.  MR. GRANT:  I would hope the legend —  THE COURT:  The editorial content, not the legend.  The  editorial content.  For what -- for the limited evidentiary value  that it has.  It has some evidentiary value because he  has said that he has seen many of these sites that  were in use.  He does not pretend to have seen them  all.  But other witnesses have described a lot of  these locations and this is a far easier map to follow  than the one that Olive Ryan used, for example.  And I am disposed to apply the old principle to  you, Mr. Grant, and say that it might be admitted cum  periculum, as the old pleaders used to say, that is at  your peril; it does not prove everything you want it  to prove.  It does not make admissible what is  inadmissible because of the hearsay rule to which, in  this case, there may not be any exceptions, and you  will have to take your chances on that.  But I don't  think the witness -- the evidence of the witness  permits the matter to be taken any further than that,  anyway.  And if counsel wants to use this in argument,  then they will have to use those parts of it that are  admissible and they will have to be content with the  fact that anything on the map that is not admissible  cannot be used.  But I do not see any other way around  the management problem we have if we do not do it that  way.  But I will naturally be glad to hear what  counsel say.  Firstly, what do you say, Mr. Grant?  MR. GRANT:  Well, first of all, I want to clarify.  I think you  said map 23 but you are obviously referring to map 22.  THE COURT:  No.  I said both of them.  MR. GRANT:  Oh, both of them.  THE COURT:  Because one is just a mirror image with respect  to -- where the fish sites are concerned, and that's  why I said 23 without the editorial content.  MR. GRANT:  Right, okay.  MR. MACAULAY:  What about the editorial content on this one, my  lord?  THE COURT:  We haven't got to that one yet. 13972  M. MORRELL (for Plaintiffs)  Submission by Mr. Grant  1  MR.  GRANT  2  MR.  MACAU  3  THE  COURT  4  MR.  GRANT  5  6  7  8  9  THE  COURT  10  11  12  13  MR.  GRANT  14  15  THE  COURT  16  MR.  GRANT  17  18  19  20  21  22  23  24  25  THE  COURT  26  27  28  MR.  GRANT  29  THE  COURT  30  MR.  GRANT  31  32  THE  COURT  33  MR.  GRANT  34  35  36  37  38  39  THE  COURT  40  MR.  GRANT  41  42  THE  COURT  43  44  45  46  47  MR.  GRANT  We haven't got it to, and I hope --  AY:  It's worse.  Well, better or worse, as the course may be.  My friends both know, and I can advise your  lordship, that Miss Marsden will be called and any --  whether I tender or ask that the editorial content or  part of it be included, I'll leave for that time.  I  may not ask for any of it to be.  For the moment then, subject to -- because of that  and whatever any other comments your friends have, the  editorial comment on map 22 will not be admitted  either.  That's right.  I am not asking -- seeking to have it  admitted.  It's not the writing of this witness.  All right.  The -- obviously, the intent is to make ease of  reference through one map a reflection of -- for  example, you've heard evidence from a number of  different people about fishing sites and that may be  admitted because of what those witnesses have given  evidence of.  The reference to Mr. Tait, the former  Delgamuukw who died before this action came to trial,  there may be -- I may make a submission on that with  respect to those sites.  Well, that's -- that's open to you any time.  Now --  or if there is any point in it now, I don't think  there is.  I don't think there is.  Unless you argue it.  I may have to lay some evidentiary foundation for  that.  All right.  And I think that the knowledge of the witness with  respect to those areas where he has described the  sites, that evidence, it's based on -- that the map  should go in on that basis.  So I have not that much  difficulty with it, except I may want to be more  precise as to those sites he has observed.  Well, that's a matter that you --  But I may be able to do that quite briefly at the  conclusion of my direct.  Well, I would like to suggest that overnight he make  a list of those that he has personally observed, and  that's an arduous task, but it's something that can be  done in a couple of hours and we can save ourselves a  lot of difficulty here.  Yes.  I would prefer doing it that way, for shortcut 13973  M. MORRELL (for Plaintiffs)  Submission by Mr. Grant  1 of court time rather than spending the time in court.  2 THE COURT:  What do you say to that, Mr. Goldie?  3 MR. GOLDIE:  I'm quite content with what your lordship is  4 proposing.  5 MR. MACAULAY:  Yes, my lord.  6 THE COURT:  All right.  Well then, map 22, for the time being,  7 without the editorial comment, will be the next  8 exhibit which is 974.  9 THE REGISTRAR:  Are they not going in on the map series?  10 THE COURT:  Quite right.  It will be 358-22 without the  11 editorial comment.  All right, thank you.  We'll take  12 the afternoon adjournment, please.  13  14 (EXHIBIT 358-22 - Map 22 without Editorial Comment)  15  16    THE REGISTRAR:  Order in court.  Court recesses.  17  18 (PROCEEDINGS ADJOURNED AT 3:00 p.m.)  19  20 I hereby certify the foregoing to be  21 a true and accurate transcript of the  22 proceedings herein transcribed to the  23 best of my skill and ability.  24  25  26  27  28 Toni Kerekes,  29 O.R., R.P.R.  30 United Reporting Service Ltd.  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 13974  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1 (PROCEEDINGS RECONVENED PURSUANT TO THE AFTERNOON BREAK)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Mr. Grant.  5 MR. GRANT:  6 Q   Thank you.  All right.  I'd just like to refer you to  7 Exhibit 358-22.  That's the map you were looking at  8 earlier.  That map appears to indicate a number of  9 canyon locations where there's a concentration of  10 fisheries.  Is that fair to say, that there are  11 certain canyon locations where there's concentration  12 within the area?  13 A   There are canyons at various locations indicated on  14 this map, and those tend to be places where fishing --  15 where the dots indicating fishing sites concentrate.  16 Q   Why are canyon -- why from a fishery scientist's point  17 of view are canyons preferred locations for fisheries?  18 MR. GOLDIE:  Good place to catch fish.  19 A   I'm sorry, I'm having -- I have trouble hearing your  20 question with background noise.  21 MR. GOLDIE:  I'll concede a canyon is a good place to catch  22 fish.  2 3 MR. GRANT:  24 Q   My friend has taken us through the first step, that  25 canyons are good places to catch fish.  From a fishery  26 scientist's point of view can you explain why canyons  27 are good places to catch fish?  28 A   The water is turbulent, the fish are more likely to be  29 accessible from shore, the fish use eddy currents that  30 are created along the shore, the heavy current causes  31 them to seek out calm turbulent resting spots in  32 irregularities in the wall of the canyon.  These  33 canyons often provide niches, handy places for people  34 to stand where they can easily manipulate fishing  35 gear.  Frequently, at some water stages, fish may be  36 delayed in -- in passing through a canyon because of  37 the velocity of the water, the difficulty of passage.  38 In such cases they collect at -- at particular points  39 where they're concentrated, and they're -- they're at  40 high density and relatively easy to catch.  41 Q   Now, talking about fisheries management systems in  42 general, in a general fisheries management system, Mr.  43 Morrell, are there certain features of a system of any  44 fisheries management system, components that a  45 fisheries manager looks at?  46 A   Typically someone managing a fishery needs power to  47 regulate harvest in many ways:  the beginning and 13975  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1 ending of fishing times, the sort of gear employed,  2 which individuals have access to the fishery.  In  3 addition, a manager may well be involved in protection  4 of fish habitat.  Often part of a management strategy  5 is allocation of the -- of the product of the fishery.  6 Q   And these are features one would find, for example, in  7 the regulation by the Federal Government of the  8 coastal commercial fishery?  9 A   Yes.  10 Q   Did you find similar features in your observations?  11 That is, these features you've described, did you find  12 such features in the Gitksan and Wet'suwet'en fishery?  13 A  All of those powers reside in the -- in the hereditary  14 chiefs within the Gitksan and Wet'suwet'en system.  15 Q   Okay.  You've already described through one example  16 the habitat protection aspect?  17 A   Yes.  18 Q   And then you were talking about regulation of the  19 harvest, and you said, for example, that under  20 regulation of harvest you referred to the beginning  21 and end of fishing times?  22 A   Um hum.  23 Q   Did you observe within the Gitksan and Wet'suwet'en  24 fishery management how that -- if that was carried  25 out?  26 A  What one observes is that there is a temporal pattern  27 to the fishing.  That's the observation.  My  28 understanding is that the -- the chiefs themselves or  29 the designates of house chiefs direct fishing  30 operations, and that would include saying when one is  31 to start fishing.  For example, I know that Lloyd  32 Muldoe receives instructions from his mother, Lottie  33 Muldoe, as to when to fish, when to stop fishing,  34 whether to fish on one side or the other of the river  35 in a chinook salmon site or a sockeye site, that sort  36 of thing.  37 Q   And do you know if Lottie Muldoe is a chief in her  38 house?  39 A   Certainly she's a ranking member.  I'm not aware of  40 her -- of her name or position.  I know that she's a  41 powerful person.  42 Q   You also said that part of the regulation of harvest  43 involves the gear type employed.  Did you see examples  44 of that with respect to the Gitksan and  45 Wet'suwet'en -- or Wet'suwet'en?  46 A  Again, I see changes in the gear at different -- at  47 different seasons, a change from large mesh spring 13976  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR.  MR.  MR.  salmon net to smaller mesh sockeye net or coho net, a  switch from -- these are terms that the people use.  Sockeye net refers to a mesh size of about five and a  quarter inches, coho net is about six inches, and  spring salmon net is seven inches and up.  People will  switch from a spring net early in the season to a  sockeye net during the peak of the sockeye run and  then perhaps to a coho net if they wish to continue  fishing into the -- the period when sockeye and pink  salmon are mixed together in an effort to select the  larger sockeye over the smaller pink.  I assume that  these changes are done at the behest of the chiefs and  that the chiefs may --  GOLDIE:  Excuse me, my lord, I object to an assumption of  that kind.  GRANT:  Q  but you observed  you observed  A  Q  A  Q  A  Q  A  Yes.  I'm not -  these changes?  That's right.  Okay.  In a systematic way.  Okay.  I observed that there was a pattern to them.  Okay.  With respect to the Moricetown Canyon, was  there a change in utilization of gear there at  different times of the season?  The gaff fishing predominated during the spring salmon  run in July.  There was a tendency to switch away from  gaffs and to -- to other gear during -- during the  pink salmon run, and also there's a considerable  overlap between the spring salmon run and the -- and  the sockeye run in the Bulkley.  People targeting on  sockeye were more inclined to use dip-nets than people  targeting on spring salmon who preferred gaffs.  You also indicated a part of the fisheries  management regime is allocation of the product of the  fishery.  Did you see evidence of allocation of the  product of the fishery?  GOLDIE:  I'm sorry, just to assist me, is my friend talking  about the marketing of the product?  Is that what  we're talking about?  MR. GRANT  MR.  GRANT:  Q  A  Q  No, I'm talking about the -- well, yes, I have your  point.  I'll -- I was using your explanation, Mr.  Morrell —  Yes.  -- in which you referred to the allocation of the 13977  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1 product of the fishery, and here you're talking about  2 the catch, the fish catch, is that right, the  3 allocation of catch?  4 A   That's right, or the product of the smokehouse, the  5 final elaborated product, the smoked fish or the  6 canned fish or the frozen fish, however it's  7 processed.  8 Q   Okay.  Did you see evidence of the allocation of the  9 final product?  10 A   I observed that fish from a particular fishing site  11 were distributed throughout the family doing the  12 fishing at that -- at that site.  13 Q   Are you talking there about family as a nuclear family  14 or as house members?  15 A   House members, extended family.  16 Q   Now, can you give an example of that with respect to  17 some persons which you've observed?  18 A   Um hum.  I suppose the first-person observation of  19 this would -- would be seeing the fish change hands,  20 and I don't always see that.  I have a general idea of  21 where different people get their fish.  I know that  22 Beverly Anderson gets fish through Lottie Muldoe, to  23 whom she's related.  I know that she cooperates in  24 processing fish with Lottie and that she receives some  25 of the product of Lottie's smokehouse.  26 Q   You visited smokehouses yourself as part of your  27 observations?  28 A   Yes.  29 Q   Now, in light of all of your observations, your  30 experience, and your research with respect to the  31 Gitksan and Wet'suwet'en fishery, what are your  32 conclusions as to the Gitksan and Wet'suwet'en fishery  33 management today?  34 A   That there is a management system, that it functions,  35 that it orders the -- the Indian fishery within the  36 Gitksan and Wet'suwet'en area, that the system of  37 fishing-ground ownership is widely known and -- and  38 respected, in the main observed.  39 Q   Now, as part of your analysis did you study the  40 history of the Gitksan and Wet'suwet'en fishery and  41 earlier methods of fishing?  42 A   Yes.  43 Q   Can you just explain briefly for his lordship how you  44 studied -- what you -- how you learned about the  45 earlier fishery of the Gitksan and Wet'suwet'en?  46 A   By talking to people, by asking -- asking about their  47 memories and their -- their knowledge of the fishery 1397?  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR. GRANT  THE  MR.  MR.  MR.  MR.  THE  MR.  before I arrived on the scene and early in their life  and before their life.  In addition, the interviews to  to which I've referred earlier are full of that sort  of information.  It was one of the things that the  interviewers were -- it's one of the sorts of  information that the interviewers were specifically  seeking.  One of the interviews, I think it's at tab 13 of  Exhibit 9 —  REGISTRAR:  974 for Identification.  GRANT:  Q   -- 974 for Identification, was an interview with --  between -- by Mary Johnson with Rufus Good.  Rufus  Good died before you commenced your work in the area;  is that right?  A   I didn't know Rufus Good personally.  I understand  that he's deceased.  I never met him.  Q   Now, in that interview there's a reference to the  making of a t'in or river dam?  A   Yes.  GOLDIE:  What is the basis for tendering this?  GRANT:  Well, I'm — what I'm — this — I've already —  this is in the exhibit for identification.  It's part  of the methodology.  I haven't asked the question with  respect to it, and I'm not asking to have it -- at  this point I'm not -- I don't see the point of arguing  if it comes within an exception at this point, my  lord.  I just want to deal with the methodology.  Well, the methodology for what though, for building  dams?  No. Methodology of a witness in terms of what his  base was. I was going to ask the witness if this is  an example of what he --  He's told us that he looked at all these, he took  some of these interviews himself, and he looked at  other ones, looked at the others, hasn't he?  Yes.  What more is there to say about them?  About this -- well, I can -- I can leave that.  I  was just going to refer to this example, my lord,  of --  You know, on the first line it almost leads me to  think that we ought not to be taking time on it.  It  says, "The people had offered a prize for the best  story teller."  GOLDIE:  Well —  COURT:  That leads to —  THE COURT  MR. GRANT  THE COURT  GRANT  COURT  GRANT  THE COURT  MR.  THE 13979  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  GRANT:  Well, I think that I can go further than that.  GOLDIE:  Perhaps my friend is suggesting we're having the  present-day equivalent of that.  Well, I notice they're making a movie about my old  friend Baron Munchausen, so it certainly always comes  back to the beginning, doesn't it?  No, I don't think  so, Mr. Grant.  MR.  MR.  THE COURT  MR.  GRANT  Q  did you look at photographs of t'in  Did you observe  or weirs?  A   I've seen a photograph of a weir in the Kitwancool  River, yes.  Q   Okay.  And Albert Tait described a weir -- a  location -- pointed out a location to you of a weir in  the Kispiox River?  A   That's right.  Q   Which is marked on Exhibit 358-22?  A   Yes.  Q   And to your knowledge were weirs used in other parts  of the Gitksan and Wet'suwet'en area?  A   Yes.  MR. GOLDIE:  Excuse me, my lord.  He says to my knowledge.  Does  that mean he has personal knowledge of a weir or is he  talking about the same sort of thing we've heard  before, i.e. stories by other people, photographs?  I'm unaware that there is any weir in the -- in the --  in this Skeena River system that has been in existence  in the period that Mr. Morrell has been on the river.  If that's what he's talking about, I'm very interested  in it.  THE COURT:  Perhaps you can find out what we are talking about  here, Mr. Grant.  MR. GRANT:  Yes.  Well, I can advise the Court that I'm talking  here about -- I introduced this area.  I'm talking  about the history of utilization of different fishing  methods in the past as part of the study of the  Gitksan and Wet'suwet'en fishery.  And certainly this  witness, I would submit, my lord, would be entitled to  rely on historical and other material in terms of  researching the history of the fishery and the nature  of the fishery and the changes of the fishery.  I'm  talking about the Gitksan and Wet'suwet'en fishery.  THE COURT:  Well, we're back to a problem that we visited in the  past.  I wouldn't have thought that the exception for  historical information allowed a non-historian expert  in a particular discipline to just come and tell me  what some other people told him if he had made a 13980  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1  2  3  4  5  6  7  MR.  GRANT  8  9  10  11  12  13  14  15  16  THE  COURT  17  18  19  MR.  GRANT  20  THE  COURT  21  22  MR.  GRANT  23  Q  24  25  26  A  27  Q  28  A  29  30  31  32  33  Q  34  35  A  36  37  38  39  Q  40  A  41  Q  42  43  A  44  Q  45  46  A  47  search of the published literature or he had done  something more than -- than comply or qualify for  exclusion under the hearsay rule.  That wouldn't seem  to me to be enough.  What are you saying, that because  he's an expert in fisheries that he can tell me what  other people had told him happened in earlier days?  :  No, I'm saying that in terms of -- as my friend  suggested earlier -- yesterday, during the argument on  qualifications, the issue was raised as to that when  talking about the historical nature of the fishery  that only an anthropologist could talk about it, and  I -- I understood your lordship's ruling that given  his expertise in fishery science, which is -- which  he's described as an interdisciplinary area, that he  could rely on other historical works and other data.  :  Well, I think other historical works I would think  might qualify, but not just somebody told me  something.  :  No, I have your point on that, my lord, and I --  :  Well, all right.  See how far you can advance it  down that road.  Did you review as part of your research historical  material relating to the Gitksan and to the  Wet'suwet'en?  I've looked at published historical sources, yes.  Okay.  Can you give some examples of those?  Annual reports of both federal and provincial  fisheries agencies for the period of record.  I have  reviewed sources cited in -- in my opinion report.  One that I can think of is known as the Conway  diaries.  Just one moment.  Tab 2, page 62 and 63.  This is the  cited material that you're referring to?  I've also looked at the -- the writings of William  Brown from -- who was an employee of the Hudson Bay  Company at Stuart Lake, and he also spent time at  Babine Lake.  Yes.  What were you referring me to in this book?  Tab 1, page 62 and 63 is literature cited in your  summary opinion report?  Yeah.  And the second reference there is to the Conway diary.  Is that what you were referring to?  That's right.  I have another historical reference  from a report of Lou Ghelly, an employee of the 13981  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1 federal department of fisheries in which he refers to  2 an historical account of a camp of the Collins  3 Overland Telegraph, I believe.  4 Q   Yes.  And if you look at tab --  5 A   Yes.  6 Q   I'm sorry, did I interrupt you?  7 A   Yes.  Well, an account of fishing gear that I recall  8 from the -- the government sources that I -- that I  9 cited earlier from the annual federal fisheries  10 reports.  There's an account by fisheries overseer  11 Helgeson, who visited the fisheries at Babine Lake, in  12 the Babine River.  13 Q   Okay.  That was in the 1906 annual report.  And then  14 if you turn to tab 2, page 213 through to page 216 --  15 A   Yes.  16 Q   -- are these citations that include historical  17 references you relied upon, and you can just take a  18 moment to --  19 A  When you say historical references, you're -- where do  20 historical accounts of fish catches, for example, fall  21 in this?  There's lots of historical statistical data.  22 Q   Okay.  First of all, this 213 to 216 is material you  23 relied upon in forming your opinions to give evidence  24 for the court?  25 A   That's right.  26 Q   Okay.  Secondly, I was asking you about historical  27 material that you referred to in your study of the  28 history of the Gitksan and Wet'suwet'en fishery.  2 9 A   Um hum.  30 Q   And you've given us some of those or you've given  31 us -- you've described some, and I just wanted you to  32 quickly review that to see if there are any others  33 that you relied on with respect to the history of the  34 Gitksan and Wet'suwet'en fishery.  35 A   No, I don't see sources here in addition to the ones  36 that I've already mentioned.  37 Q   Volume 1, please, tab 4.  You have tab 4?  38 A   Yes.  39 Q   And is this one of the historical references to which  40 you have referred?  41 A   This is the account of Mr. Helgeson of his trip to  42 Babine Lake and the Bulkley River.  43 Q   Yes.  And in this he makes some description of certain  44 events that occurred and his observations of weirs; is  45 that right?  46 A  Weirs on the Babine River.  He also visited Moricetown  47 Canyon and the Copper River, the Hazelton area. 13982  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1  THE  COURT:  2  MR.  GRANT:  3  THE  COURT:  4  MR.  GRANT:  5  6  THE  COURT:  7  MR.  GRANT:  8  Q  9  10  11  A  12  13  Q  14  15  A  16  Q  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  MR.  GOLDIE  46  47  A  What are these, sessional papers for 1906?  Yes.  Thank you.  It's the annual report that comes out of the  sessional papers.  Thank you.  And just could you refer to where he refers to the  Moricetown Canyon, which part of the report you're --  is that the bottom of page 209?  That's right.  I see the heading "Bulkley river," and,  yes, that's where he begins to talk about Moricetown.  And then at the bottom "Canyon and Falls."  Is that  reference to Moricetown?  Yes.  And he states:  "On examining the canyon I found it about 250  yards long, the narrowest part 1 foot wide,  and from the numerous paths, stagings,  ladders, etc., I could judge that the  canyon during the fishing season was lined  with Indians, hooking and catching salmon by  every conceivable contrivance.  They even  shove out a long pole with a rope through  the end of it, from one side to a crevice on  the other side, bend on the trap or basket,  haul it to the other side, lower it down,  and when a sufficient quantity of salmon  enter, they haul it back; every salmon that  comes up that foaming boiling cauldron, goes  into the little eddies for rest, and every  eddy is filled with contrivances for his  capture, but if indeed some of the fish are  lucky enough to escape the multitude of  hooks and traps in the canyon a worse fate  awaits them at the falls immediately above,  where they are in low water during fishing  season by all accounts, 14 feet high."  Now, just that part of it, and I'm going to go on to  the rest, do you know what -- do you recognize what  he's describing there or is it so coloured that it's  impossible for you to figure it out?  :  Since he relied upon it, I assume he understands  it.  I recognize the canyon. 13983  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1 Q   Do you recognize the method that he's talking about  2 there in the first part?  3 A   I can relate it to what I've seen, yes.  4 Q   And what is he talking about there?  Is he talking  5 about the use of fish traps or --  6 A   Yes, he's talking about fish traps.  He appears to be  7 talking about gaffing as well.  8 MR. GRANT:  Yes.  9 THE COURT:  How effective do you think that notice was that he  10 posted?  11 MR. GOLDIE:  Certainly it scared off the fly fishermen.  12 THE COURT:  He says there's no sportsmen in the vicinity.  It's  13 a terrible indictment of the community.  14 THE WITNESS:  The various traps and baskets that he describes on  15 page 210 --  16 MR. GRANT:  17 Q   Yes.  18 A   -- sound to me like the -- the sorts of fishing  19 apparatus that I've had described to me in interviews.  20 Q   You've seen --  21 A   He's not very specific.  22 Q   You've seen photographs of fishing traps in  23 Moricetown?  24 A   That's right.  25 Q   And baskets -- basket traps?  26 A   That's right.  Both at Moricetown and Hagwilget  27 Canyon.  In addition to the photographs that I've seen  28 from -- of weirs at the Kitwancool River.  29 Q   Now, my lord -- oh, first of all, I referred you to  30 pages 62 and 63 of your summary opinion report, the  31 area covered literature cited, as well as the  32 literature-cited section, pages 213 to 216, of the FMS  33 report, and you relied on the literature cited for  34 your opinions -- you relied on the literature cited in  35 your opinion report for the preparation of your  36 opinion evidence?  37 A   Yes, that's the literature -- the literature that I  38 cited in that report.  I certainly consulted other  39 literature but didn't specifically cite it.  40 MR. GRANT:  Okay.  I'd ask that those two excerpts, that is,  41 page 62 and 63 of tab 1 and page 213 to 216 of tab 2,  42 Volume 2, be marked as the next exhibit, my lord.  43 THE COURT:  Any objection?  44 MR. GOLDIE:  No.  45 THE COURT:  No.  All right.  Perhaps you could give me those  46 again, please, Mr. Grant.  4 7 MR. GRANT:  Yes, Volume 2. 13984  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. Morrell (for Plaintiffs)  In chief by Mr. Grant  THE COURT  MR. GRANT  THE COURT  THE  THE  MR.  THE  MR.  MR.  Yes.  Tab 1, pages 62 and 63.  All right.  That will be exhibit  THE REGISTRAR:  The next exhibit is 975, my lord.  (EXHIBIT 975 - Tab 1 - Plaintiffs' Book 2, pages 62-63  inclusive, Literature Cited - M. Morrell)  THE COURT  MR. GRANT  THE COURT  MR. GRANT  THE COURT  MR. GRANT  THE COURT  975.  All right.  And then Volume 1.  And Volume 2.  Volume 2.  Tab 2.  Yes.  Pages 213 through to 216 inclusive.  Right.  976.  THE REGISTRAR:  Exhibit 976.  (EXHIBIT 976 - Tab 2 - Plaintiffs' Book 2, pages 213-216  inclusive, Literature Cited - M. Morrell)  MR. GRANT  MR.  And I would ask that the -- I tender tab 4 of  document 1, the Helgeson report from the sessional  papers.  I am tendering it as a document -- one of the  historical documents referred to by the witness.  I'm  not tendering it for the truth of its contents.  COURT:  Yes.  COURT:  All right.  That's tab — that's Volume 1, tab 4.  GOLDIE:  Well, my lord, I think my friend's reservation has  gone by the boards in view of the answer the witness  gave.  He accepted the truth of the statements there.  COURT:  Well, that's his privilege, isn't it?  I don't think  that changes things, does it?  GOLDIE:  Well, it's just that he's adopted it.  it comes down to.  Well, I don't think the witness has --  haven't put this entire document to him, nor I don't  think he has adopted the document.  Well, the part that he has looked at, the Bulkley  River and the Canyon and Falls portion, are going to  be Exhibit 977.  You say for -- not for the truth but  to show some of the material upon which the witness  has relied, and Mr. Goldie apparently wants it in for  the truth, do you, Mr. Goldie?  You say it should go  in the for the truth because it's been adopted by the  witness?  GOLDIE:  Well, as I understood the witness, he said I -- in  effect he said I accept this as an accurate statement,  GRANT:  That's what  I certainly  THE COURT 13985  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. Morrell (for Plaintiffs)  In chief by Mr. Grant  and as such that describes a fishing method which I  believe is comparable to what I've seen. That's as  far as it goes.  THE COURT:  Yes.  MR. MACAULAY:  My lord, he mentioned not only the Babine and  Moricetown, but Copper River as well, that he had read  them.  I don't say that he's taking -- adopting the  paragraph on the Copper River.  THE COURT:  All right.  Thank you.  THE REGISTRAR:  977, my lord.  THE COURT:  Yes, 977.  THE REGISTRAR:  Thank you.  (EXHIBIT 977 - Tab 4 - Plaintiffs' Book 1, Helgeson  Report - Sessional Papers 1906)  MR. GRANT:  My lord, as I'm just having a bit of a pause on  documents, in terms of a question raised this morning  with respect to Chapter 5 of tab 2, I would be content  the -- this is the chapter entitled "History and  Current Status of Skeena Salmon Stocks."  Since in  Exhibit 973 there is no reference to pink salmon and  steelhead, and the witness described this morning that  they were described in Chapter 5, I would ask that  section 5.5, which would be pages 169 through to 170  or 171, that is the section on pink salmon, and  section 5.7, the section on steelhead, be marked  either as Exhibit 973-1 or as the next exhibit, and I  only suggest 973-1 as they complete the picture with  respect to the Skeena salmon stocks.  It's not covered  in Exhibit 973.  THE COURT:  Mr. Goldie?  MR. GOLDIE:  I'd like to have an opportunity of looking at that,  my lord.  THE COURT:  All right.  All right.  Well, you're applying in  that regard, Mr. Grant, and I'll deal with the matter  when Mr. Goldie has had a chance to look at it.  MR. GRANT: That's satisfactory. I just wished to clarify with  your lordship what the position was that I was taking  regarding that.  THE COURT:  Yes.  All right.  I think we'll take a short  adjournment now.  Mr. Grant, how long do you think  you'll be?  MR. GRANT:  On direct?  THE COURT:  Yes.  MR. GRANT:  Well, subject to — I was —  THE COURT:  Well, you don't need to tell me now.  You might 13986  M. Morrell (for Plaintiffs)  In chief by Mr. Grant  1 speak to your friends.  If you reach a conclusion,  2 tell me when we come back.  I'm proceeding on the  3 assumption that we're going to be until 6:30 tonight,  4 and I'll be happy to do so if that's what counsel  5 think we ought to do with a view to finishing  6 comfortably tomorrow.  All right.  Thank you.  7 THE REGISTRAR:  Order in court.  Court will recess  8  9 (PROCEEDINGS ADJOURNED AT 4:00 P.M.)  10  11 I hereby certify the foregoing to be  12 a true and accurate transcript of the  13 proceedings herein to the best of my  14 skill and ability.  15  16  17    18 Leanna Smith  19 Official Reporter  20 United Reporting Service Ltd.  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 13987  M. Morrell (for Plaintiffs)  In Chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR.  THE  MR.  THE  MR.  THE  MR.  THE  MR.  THE  MR.  THE  THE  MR.  THE  MR.  THE  MR.  THE  MR.  THE  MR.  THE  MR.  THE  MR.  THE  MR.  THE  MR.  THE  MR.  THE  (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT)  GOLDIE:  My lord, I have no objection to pages 169 and 171.  COURT:  All right.  That will be —  GOLDIE:  171 and pages —  COURT:  Is that paragraph 5.5?  GOLDIE:  Yes.  COURT:  All right.  GOLDIE:  And paragraph 5.7.  COURT:  All right.  Paragraph 5.5 will be Exhibit 978.  GOLDIE:  All right.  COURT:  All right.  GRANT:  Together with the accompanying tables, my lord.  There are diagrams or tables with that.  COURT:  All right.  Just a minute.  I will mark that.  Yes,  all right.  REGISTRAR:  Give me the page numbers.  GRANT:  That would be pages -- Section 5.5, Book 2, tab 2,  pages 169.  COURT:  And part of 17 0.  GRANT:  And part of pages -- pages 169 to 171, top two lines  of 171 together with figures 5.8.  COURT:  Just a moment.  I'm sorry.  GRANT:  Oh, I'm sorry.  No, no, no.  COURT:  5.5 —  GRANT:  No.  I'm —  COURT:  Yes, there is the only one table, is there?  GRANT:  No, I think not, my lord.  5.8 —  COURT:  Paragraph —.  Oh, I guess —  GRANT:  It's all on pink salmon tables.  COURT:  Yes, all right.  GRANT:  Which would be figures 5.8, 5.9, 5.10, 5.11, 5.12  and 5.13.  COURT:  So it goes up to and including page 171.  GRANT:  Yes.  COURT:  All right.  Thank you.  And then paragraph 5.7?  GRANT:  578, that last one?  COURT:  Yes.  GRANT:  Or 97 8, I mean.  REGISTRAR:  97?  THE COURT  THE COURT  MR. GRANT  (EXHIBIT 978: Tab 2 - Plaintiffs' Book 2, pgs. 169-171  inclusive, includes tables, figures)  The next one is 979 and that's paragraph 5.7.  Starting at page 174?  Yes.  Page 174, 175.  It would include table 5.5 and 139?  M. Morrell (for Plaintiffs)  In Chief by Mr. Grant  1 figure 5.17 and page -- and table 5.6, figure 5.18 and  2 it would conclude on page 178.  3 THE REGISTRAR:  175 to 178.  4 MR. GRANT  5 THE COURT  6 MR. GRANT  Yes.  Together with accompanying tables.  All right.  Thank you.  And that's Exhibit — ?  7    THE REGISTRAR:  That will be 979.  8  9 (EXHIBIT 979: Tab 2, Plaintiffs' Book 2 pgs. 174-178  10 inclusive, includes tables, figures)  11  12 MR. GRANT:  And Exhibit 978 and 979 will be used in conjunction  13 with Exhibit 973 for the record, my lord.  14 THE COURT:  All right.  15  16 EXAMINATION IN CHIEF BY MR. GRANT (Cont'd):  17 Q   Mr. Morrell, I was asking you about your research with  18 respect to pre -- to historical Gitksan and  19 Wet'suwet'en fishing technology.  And have you come --  20 as a result of your research, have you come to any  21 conclusions as to the general -- the type of fishing  22 gear and the implications for the type of fishing gear  23 on the fishery, the Gitksan and Wet'suwet'en fishery?  24 I am talking about historical.  25 A  Most of the gear types used in the fishery captured  26 fish but didn't kill them outright.  And that afforded  27 fishers the opportunity to select the fish that they  28 wanted and release others without harming them.  That  29 is one of the -- one of the underlying characteristics  30 of much of the gear that I have learned about.  31 Q   You've talked earlier about I believe with respect to  32 gillnets of mobile gear and fixed gear?  33 A   Yes.  34 Q   That is set nets.  With respect to the earlier gear,  35 is it -- did it come within one or the other of those  36 groupings?  37 A   It's fixed.  Fixed gear station in one place and the  38 fish go to the other one, mobile gear station, chases  39 the fish.  40 Q   Does that have an impact on the fishery management?  41 A   Sure.  It makes it easier to predict where the gear is  42 going to be.  It doesn't move.  43 Q   And do different gears have different -- does it  44 depend on the type of gear as to whether or not high  45 or low density of fish are required for catch?  46 A   Each gear type has its own characteristics, its own  47 fishing characteristics, its own situation where 13989  M. Morrell (for Plaintiffs)  In Chief by Mr. Grant  1 it's -- it's useful.  Much of the gear used in  2 aboriginal fisheries on the Skeena was tended by --  3 constantly tended by an individual and fish were taken  4 one at a time.  Contrivances like dip nets, for  5 example, would be of this sort.  And gear like that  6 requires high densities of fish for fishing to be  7 worthwhile.  Gear that fishes passively, if you will,  8 fishes by itself like a weir or a gillnet can be  9 profitable to fish, can be worth someone's while to  10 fish at lower densities, although other factors come  11 into play here.  12 Q   Okay.  Now, I'd like to just move you to another  13 topic.  I believe you have given evidence on this in  14 the time you were examined on your qualifications, but  15 have you observed the utilization of fish from the  16 Gitksan and Wet'suwet'en areas for trade or for sale  17 by Gitksan and Wet'suwet'en?  18 A   I have observed sale.  I have observed trade.  I'm  19 aware from living in the community and from  20 associating with fishermen that there is a good deal  21 of sale and trade that goes on.  22 Q   Is that one aspect of the Gitksan and Wet'suwet'en  23 fishery?  24 A   Yes.  25 Q   Okay.  Is that relevant for fish -- for an analysis of  26 the fishery management system?  27 A   Yes.  The disposition of the catch is of interest.  28 Q   Okay.  In your historical analysis did you determine  29 whether or not the utilization of fish by the Gitksan  30 and Wet'suwet'en for sale or trade was a component of  31 the fishery?  32 A   For their sale and trade was a component of the  33 Gitksan fishery?  I have trouble hearing when there is  34 background noise.  35 Q   Did you from your analysis of the historical material,  36 did you come to any conclusions as to whether or not  37 the utilization of fish for trade was a feature of the  38 early Gitksan and Wet'suwet'en fishery?  39 A  My conclusion is that it was.  40 Q   Are there any speciality products of salmon or of the  41 fish, fishery of the Gitksan or the Wet'suwet'en from  42 your observations that are prized outside of the area?  43 MR. GOLDIE:  We are talking now of what he has personal  44 knowledge of?  4 5    MR. GRANT:  46 Q   Yes.  I am talking about his observation.  47 A   The smoked or dried fish from different areas is 13990  M. Morrell (for Plaintiffs)  In Chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  Q  13  A  14  15  THE  COURT  16  A  17  THE  COURT  18  A  19  20  21  THE  COURT  22  23  A  24  THE  COURT  25  26  A  27  28  THE  COURT  29  MR.  GRANT  30  Q  31  32  A  33  34  35  36  37  Q  38  39  40  41  MR.  GOLDI  42  43  MR.  GRANT  44  THE  COURT  45  MR.  GRANT  46  Q  47  THE  COURT  distinctive.  Connoisseurs can recognize fish from  different places.  The boneless thin strips of salmon  produced in both the Wet'suwet'en and the Gitksan area  especially from chinook salmon are highly prized both  within the area and outside.  When I visited the Nass  oolachan fishery, one of the people I was with, a  fisherman from Moricetown, Adam Gagnon, brought a big  bag of stripped smoked from spring salmon from  Moricetown and they didn't last very long in the camp.  They were quickly consumed.  They were of great  interest to everyone.  And they were shared with the Nishga people there?  The Nishga.  Yes.  They were taken as a present for  the Nishga and they were appreciated.  :  When did they start calling them chinook?  A lot of people still call them springs.  :  Yes.  Chinook is sort of the international biologist's name  for them.  Spring is still I'd say the most commonly  used name in B.C.  :  They are commonly referred to as spring, though, are  they still?  Oh, yes.  :  Well, how long has chinook been in vogue as a  descriptive term for these large spring salmon?  I -- I really don't know the history of it.  I have  seen it in books as long as I have been studying fish.  :  All right.  Thank you.  Chinook is a terminology that biologists use when they  write about the species?  That's right.  In conversation I am constantly torn as  to whether I should refer to them as chinook or  spring, according to whom I'm talking to.  I do know  that many people are becoming bilingual in that  respect.  Now, in the historical records that you researched,  did you conclude that fish were used for trade at the  time of contact between Gitksan-Wet'suwet'en and  non-Indians?  'Ģ1:  My lord, I haven't seen any of his -- of his  references that refer to contact.  Okay.  Have you found --  You have referred --  Sorry, go ahead. 13991  M. Morrell (for Plaintiffs)  In Chief by Mr. Grant  1  MR.  GRANT  2  THE  COURT  3  MR.  GRANT  4  Q  5  A  6  Q  7  A  8  Q  9  A  10  Q  11  12  13  14  A  15  16  17  18  19  20  21  22  THE  COURT  23  24  A  25  26  27  THE  COURT  28  29  MR.  GRANT  30  Q  31  32  33  A  34  35  36  37  Q  38  39  A  40  Q  41  A  42  Q  43  44  A  45  46  47  Q  I always like you to go ahead, my lord.  You might object.  You have referred to the Brown diary?  Yes.  And that was around in the 1820s?  Early 1820s.  1822 I believe.  Okay.  It began.  It's a journal.  It's a journal.  And have you -- does the Brown diary  refer to the utilization of fish for trade among the  Gitksan and Wet'suwet'en on the one hand and the  Hudson's Bay Company?  I recall many references in the Brown diary to the  fisheries at Babine Lake and to Hudson Bay purchases  and movement of salmon at Babine Lake.  He also  visited Kisgegas and Moricetown, I believe, and made  references to the fisheries there.  I simply can't  recall off-hand whether he discussed trade at  Moricetown and Kisgegas.  That is within the Gitksan  and Wet'suwet'en areas.  :  Well, he established a tariff of so many fish equals  one belt, one beaver, did he not?  I believe there are references to that in the  journals.  I understand that was the practice.  I am  not sure whether Brown talks about it.  :  I remember seeing it somewhere way back about last  week.  :  I appreciate your consistent presence, my lord.  You were present during the presentation to the Royal  Commission on fishery, the Peter -- Dr. Peter Pearse  Commission made by the Gitksan and Wet'suwet'en?  I was present at both sessions of the hearing in  Kispiox.  I was one of the presenters of the  Gitksan-Wet'suwet'en brief and I assisted in the  preparation of that brief.  Okay.  And was trade in more recent times described at  those hearings?  Yes.  By Gitksan?  Yes.  Okay.  And that was with respect to the Grand Trunk  Pacific Railway?  Peter Williams of Kitwancool discussed supply of the  construction camps of the Grand Trunk Pacific Railway  along the Skeena by -- with fish by Indian fishermen.  I'd like to refer you -- 13992  M. Morrell (for Plaintiffs)  In Chief by Mr. Grant  1  A  2  3  Q  4  A  5  Q  6  7  8  THE COURT  9  MR. GRANT  10  THE COURT  11  MR. GRANT  12  Q  13  14  15  16  A  17  18  19  Q  20  21  A  22  Q  23  24  25  26  27  A  28  29  30  31  32  Q  33  34  35  A  36  37  38  39  Q  40  41  42  43  44  45  A  46  47  Q  Excuse me.  That was sale of fish by the Indian  fishermen to the camps.  Okay.  And that was around 1910, 1914?  1908 to 1914 I believe was the period of construction.  I'd like to refer you to tab 3 of Book 2.  And I  should say, my lord, I will be referring to it in a  moment.  I will lead up to it.  I am sorry, Volume 2?  Yes.  Tab?  Tab 3.  Now, you've described yesterday, you were referring to  Exhibit 973 and the early -- the state of the fishery,  the Skeena fishery from the time of 1877 to 1910, 1920  and the increasing productivity.  That exhibit is the graphs of historical catch and  escapement that I produced from arguing from DFO's  statistics?  Yes.  It's tab 4 of the volume you have there.  You  can just take that.  Yes.  Now -- and you indicated -- you described how that  indicated to you that at the time of the commercial  fishery that the fish runs were -- that they were in  good condition, and those aren't your words, but I  think that was the tenor of your evidence?  The pattern shown for the catch statistics of the  coastal fishery for sockeye, chinook and coho was all  typical of fishery beginning to exploit an unexploited  or lightly exploited highly harvested stock, that is  where the stocks are abundant.  Do you recall from your review of the Brown diaries  whether or not he makes reference to the state of the  Babine fishery, that is the quantity of fish?  He refers to it as being a reliable fishery of the  abundance of fish from one year to the next being  large and steady, particularly with reference to the  runs in the Stuart system.  Okay.  Now, did you come to any conclusions as to the  status of the fishery of the -- on the Skeena River  prior to the -- between those two times, that is while  the -- between the time of Brown's record and the time  of the -- of the commencement of the commercial  fishery?  Yes.  I concluded that probably stocks were healthy  and abundant and stable throughout that period.  Okay.  And in part you -- can you explain how you came 13993  M. Morrell (for Plaintiffs)  In Chief by Mr. Grant  Submissions by Mr. Goldie  1 to that conclusion and what different methods you  2 utilized?  3 A   Okay.  I -- on the basis of what data are available  4 on -- on the stocks and on the stocks of fish, the  5 populations of fish and on the populations of people,  6 plus inferences about how the fish populations and the  7 human population interacted, that is how the harvest  8 worked, I built a simple mathematical model of -- of  9 the fishery before the existence of the industrial  10 fishery and ran this -- ran this computer model, this  11 computer simulation model varying some of the -- some  12 of the important conditions of the model to cover a  13 range of possible scenarios in an effort to see which  14 scenarios were consistent with data that we could  15 observe and -- and whether such scenarios resulted in  16 a workable stable system.  17 Q   Okay.  Do you describe the formulating of that model  18 in this paper a simple model of the precontact salmon  19 fisheries of the Skeena River system?  20 A   That's right.  21 Q   And this is your paper describing that model?  22 A   That's right.  23 Q   Okay.  Now -- I am sorry.  24 MR. GOLDIE:  Are you going to tender this?  25 MR. GRANT:  Well, not at this stage I am not.  I am going to ask  26 him some questions.  27 MR. GOLDIE:  Ever?  28 MR. GRANT:  Yes, I am.  29 MR. GOLDIE:  Well, I should state my objection.  They may be  30 very easily disposed of.  31 MR. GRANT:  Uh-huh.  32 MR. GOLDIE:  When I read the material and I touched on this in  33 my original objections, it appears that this model is  34 as it states on page one:  35  36 "a first approximation of what the pre-Contact  37 fish/human interaction may have looked like.  At  38 this stage the model should not be considered an  39 accurate representation of historical reality."  40  41 And then page four:  42  43 "It is assumed, for simplification, -- "  44  45 The first paragraph,  46  47 " -- that the total salmon requirements are met by 13994  M. Morrell (for Plaintiffs)  In Chief by Mr. Grant  Submissions by Mr. Goldie  1 sockeye and chinook only; so this proportion  2 simply divides the total requirements into a  3 sockeye portion and a chinook portion."  4  5 THE COURT:  Where was that, Mr. Goldie?  6 MR. GOLDIE:  That was on page four, my lord, the first  7 paragraph.  One of the assumptions that is being met  8 there.  There were two -- only two species were taken.  9 Sockeye and then no doubt known as spring.  10 THE COURT:  Yes.  11 MR. GOLDIE:  Page five there is an assumption made, first  12 paragraph under "Human population" and then after  13 setting forth the results statistically, I notice  14 under "Bulkley/Morice System" —  15 MR. GRANT:  What page?  16 MR. GOLDIE:  Page ten.  The last sentence of the first  17 paragraph:  18  19 "Since the actual sockeye and chinook populations  20 of this system were healthy at contact and  21 remained so through the 1940s, it is likely that  22 something is wrong with the assumptions of the  2 3 model."  24  25 Now, I could go through and pick up a number of other  26 matters, but the point is that this is a speculation  27 which there is nothing wrong with speculation as such  28 if it is necessary, but I do not know what the  29 relevance is of this admittedly first approximation.  30 If I put all of these things together, I am still left  31 with the question -- when I say all of these things,  32 all of the parts of the documents that were originally  33 presented, I am still left with the question that I  34 can find nothing here that is of assistance in  35 determining the issues in the lawsuit.  Clearly, there  36 were salmon in the Skeena at any time that has been  37 talked about so far in this lawsuit.  With the  38 possible exception of millennium.  But I cannot find  39 out what the -- I cannot relate this to the issues.  40 And since it is so speculative, where is your lordship  41 assisted beyond the assumption which we are all  42 prepared to accept from Mr. Morrell, that the fish  43 were healthy, abundant and stable, although there is a  44 question about stability?  45 THE COURT:  Well, he says here sockeye and chinook populations  46 of the system were healthy at contact and remained so  47 throughout the 1940s.  Is that your view? 13995  M. Morrell (for Plaintiffs)  In Chief by Mr. Grant  Submissions by Mr. Grant  1 A   Yes.  I beg your pardon.  I don't know where you are  2 reading from.  3 THE COURT:  Well, that's the top paragraph on page ten.  The  4 last sentence in the top paragraph.  I am not worried  5 about whether there was something wrong with the  6 assumptions.  Is it your view that the actual sockeye  7 and chinook populations of this system were healthy at  8 contact and remained so throughout the 1940s?  9 A   Yes.  10 THE COURT:  And you take 1800 approximately as the time of  11 contact?  12 A  Various dates are used.  I think of it as later than  13 that.  14 THE COURT:  Yes.  Well, where does this — where does this  15 analysis take us then beyond the fact that there was  16 healthy abundant stocks from the time of contact at  17 least up to 1940?  18 A   That contact, I should note, applies to the  19 Bulkley/Morice system in terms of the healthy stocks.  20 Many of the comments of Mr. Goldie are addressed in  21 the text of the paper.  The purpose of a simple  22 modelling exercise like this is as much to test the  23 assumptions of the model as to try to describe  24 reality.  By itself it tells us little.  But since it  25 does produce some conclusions that are not obvious at  26 first examination of the assumptions, and those  27 conclusions can be tested against independent data, if  28 you can string together bits of data, plausible  29 connections between them and mathematical descriptions  30 of processes, and come up with conclusions that match  31 independent measurements of reality, that gives you  32 some measure of the validity of the assumptions that  33 you have made.  And it's a way of extending your  34 knowledge of a system into an area where you can't  35 make observations.  36 THE COURT:  Mr. Grant, to what issue is this evidence directed?  37 MR. GRANT:  Well, it's directed to the very issue that your  38 lordship raised with the witness.  It's directed to  39 the issue -- and this issue was raised -- alluded to  40 by Mr. Macaulay yesterday or the other day in  41 cross-examination, I believe it was in argument  42 yesterday morning, about some implication that the  43 state of the fishery, although described, that is the  44 healthy nature of the stocks at the time of Brown  45 being described as healthy, that there is -- and this  46 witness now has described that from his opinion and  47 conclusions is that 1877 they were healthy, that there 13996  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. Morrell (for Plaintiffs)  In Chief by Mr. Grant  Submissions by Mr. Grant  may not be -- they may not have been healthy  consistently throughout that period of time.  This  model -- and the witness -- as the witness indicated,  this model has a series of assumptions in it.  It is  only a model and standing alone it is not certainly  not conclusive.  What it is is the witness relies on  historical material, the witness has relied on early  catch data material.  The witness has relied on other  methods of research.  This is another technique the  witness has used as a scientist in testing in  assisting in whether or not his conclusion is  reasonable, and what he has done.  What conclusion?  The conclusion that the Bulkley -- or not the  Bulkley, the conclusion that the stocks were healthy  from the time of contact or up to -- up to this --  1940s.  In the Bulkley/Skeena -- the Bulkley system in the  1940s and I think you refer -- the witness refers to  it with respect to the Skeena system.  Well, if I  recall correctly.  Does the same apply to the Skeena?  Does the same  apply to the Skeena?  Healthy is a relative term.  Certainly stocks began to  decline before 1940 of stocks of all commercially  fished species.  Well, Mr. Grant, I know this is old-fashioned, but  why don't you just put that proposition to the  witness?  Ask him if he has attempted to prove those  conclusions by a model and if so with what result and  leave it to your friends to attack the model if they  want to.  The only thing is, is that I was tendering --  intending to tender the document.  I know.  But why when you have the evidence?  Well, I have the conclusion, but I anticipate my  friends may well argue at end of the day that you must  disregard that conclusion because you don't have the  evidence of the model.  Well, if they want the model they will ask for it.  They haven't asked for it and it's been proven in  chief, isn't that the end of it?  I mean, there is all  sorts of ways of doing this, but you know, there is  the easy way and the hard way and the long way and the  short way and your way and my way and all kinds of  other ways.  But I really don't know why we have to  get into an evidentiary or admissibility dispute over  THE COURT  MR. GRANT  THE COURT  MR. GRANT  THE COURT:  A  THE COURT:  MR. GRANT:  THE COURT:  MR. GRANT:  THE COURT: 13997  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. Morrell (for Plaintiffs)  In Chief by Mr. Grant  Submissions by Mr. Grant  something that isn't, it seems to me, necessary.  MR. GRANT:  Well — well, my lord —  THE COURT:  I am not — I am not — I am not sure whether Mr.  Goldie even disputes the conclusion.  GOLDIE:  The only conclusion that I am apt to dispute is the  word "stable" and this model simply assumes stability.  Well, my concern, my lord, is that my friends -- the  witness may give the conclusion, but my friends may  say that there was no evidentiary base for that  conclusion.  Well, if they are going to say that, they are going  to make the model admissible probably.  If you are suggesting that -- well, I am not certain  that they are bound to say that until the end of the  day --  MR  MR  GRANT:  THE COURT:  MR. GRANT:  THE COURT  MR. GRANT  No.  -- when we get to final argument, at which point it  will be rather late to put the model in.  I want to --  I want to --  THE COURT:  I don't know why you want it in if you can get the  evidence from the witness.  MR. GRANT:  Well, I can have the witness describle the model and  describe the results.  THE COURT:  You don't have to do that.  He can say these are my  conclusions, I have tested them with models and I am  satisfied they are right.  If your friends want to  attack that, they can open up the model and then we  get into it.  But I will be surprised if they do that  and I will be surprised if we find it necessary to get  into it at all.  MR. GRANT:  Well, I may have misread Mr. Macaulay yesterday and  maybe he can -- I am not certain --  MR. MACAULAY:  I am mystified at all this, my lord.  I don't  think it's relevant.  I may have said that things like  that are not relevant.  I say it again.  This goes to  fish management by DFO.  THE COURT:  I am not even sure it goes to that.  I think what  the witness or Mr. Grant wants me to have evidence on  is that there was a healthy, stable supply sufficient  for the needs of the people from the time of contact  to sometime in 1940 for the Bulkley system and a  little earlier than that for the Skeena system.  And  that's all I -- as I see it that's all he is trying to  get before me.  The witness can say I have studied the  matter and that's my conclusion.  If you people don't  think that's relevant you will leave it alone.  If you  want to attack it, well, then, it may be that the 1399?  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. Morrell (for Plaintiffs)  In Chief by Mr. Grant  model will -- he'll have to go into the model to  defend his opinion and it will become admissible.  MACAULAY:  I just can't remember.  Mr. Grant keeps  referring to something I have said.  I can't recall  that.  COURT:  Well, I can't either.  MACAULAY:  I am trying to reconstruct what I would have  said.  So why don't you just get the evidence from the  witness and we will see if need --  I have your leanings on this, my lord.  Thank you.  MR.  THE  MR.  THE COURT  MR.  THE  MR.  GRANT  COURT  GRANT  Q  A  Q  A  Q  A  Q  A  Q  A  Mr. Morrell, with respect to the state of the stock,  and I am talking here about the Skeena, that reference  was as you indicated under the heading of  Bulkley/Morice System, but with respect to the Skeena  stock within the Gitksan and Wet'suwet'en area, what  conclusion did you arrive at regarding the state of  that stock from the time of contact until the middle  of this century?  My conclusion is that in all probability the salmon  stocks of the Skeena system were adequate to supply  the needs of the aboriginal peoples of the system that  were feeding them, that were eating them, that were  fishing them in the pre-contact period and immediately  post contact and into the -- up to at least the period  when the stocks began to decline in response to  over-fishing by the commercial fisheries of the coast.  That would be, depending on the stocks, from 1910,  1930 period?  That neighbourhood.  The early decades of this  century.  Okay.  And you tested -- you relied on -- in support  of that opinion, you developed a model as part of  that?  That's part of it, yes.  Okay.  You have already referred to Brown.  You have  referred to the commercial fishery.  You have referred  to model.  Is there anything else that you relied on  in support of that conclusion?  I relied on the interviews with Gitksan and  Wet'suwet'en people that have been referred to  already.  Okay.  My view is that if there had been serious stock  failures in the last century or so, or if there had 13999  M. Morrell (for Plaintiffs)  In Chief by Mr. Grant  1 been chronic depletion of the runs of the sort that we  2 see today, that the people interviewed would be aware  3 of it and would have mentioned it.  Certainly there  4 are numerous references in the interviews to the run  5 failure at Moricetown as a result of the slide at  6 Hagwilget Canyon which took place in the early 1800s.  7 1820 is the generally established used date for that.  8 It seems to me very likely that if there had been  9 similar catastrophic failures or chronic under-supply  10 of fish, that people would be talking about it.  11 Q   Okay.  So other than that failure at Moricetown as a  12 result of the slide, that's the only indication you've  13 had of any such catastrophic failure?  14 A   Other references all refer to events that appear to  15 have taken place in quite distant times.  There are  16 adaawk references to failures.  17 MR. GRANT:   Okay.  I am sorry, my lord, if I could just have a  18 moment.  19 THE COURT:  Yes.  2 0    MR. GRANT:  21 Q   Among the historical material that you have reviewed,  22 are you familiar with any material by Mr. Green, a  23 surveyor?  24 A   I have seen maps and field notes of Mr. Green.  25 Q   And he was a surveyor of the Kispiox and Upper Skeena  26 area?  27 A   He worked in both those areas in -- I am not sure of  28 the date, 1911, 1912, something like that.  29 Q   And he mapped fishing sites in that area?  30 A   Yes.  31 Q   And you've looked at those fishing sites, you've  32 looked at those maps?  33 A   Yes.  34 Q   Thank you.  Now, you have described -- I would like to  35 move into another area.  You have described or  36 referred already to the commencement of the commercial  37 fishery on the mouth of the Skeena River in the period  38 1877?  39 A   Yes.  40 Q   And what I would like to ask you is this:  What are  41 the principal changes that have affected the Gitksan  42 and Wet'suwet'en fisheries since the advent of the  43 coastal industrial fisheries and non -- and the  44 regulation of that and the regulation of those  45 fisheries?  Do you want me to rephrase that?  46 A   I am just trying to get a grip on how to start in on  47 it. 14000  M. Morrell (for Plaintiffs)  In Chief by Mr. Grant  Submissions by Mr. Goldie  1 Q   Okay.  2 A   In the very earliest days when the fishery was just  3 commencing, no doubt it had little affect on the  4 Gitksan and Wet'suwet'en fishery.  As it grew, within  5 a few decades it -- it was -- it would have been  6 competing seriously with the inland fisheries for the  7 available fish.  And certainly by the present day the  8 coastal catch is much larger than the inland catch.  9 Q   Is that the coastal commercial catch?  10 A   That's right.  So the coastal fishery was intercepting  11 fish that otherwise would have reached the Gitksan and  12 Wet'suwet'en fishing grounds.  So it was reducing the  13 numbers of fish available to the Gitksan and  14 Wet'suwet'en fisheries.  By the time over-fishing  15 began to occur, that is varying from species to  16 species as we have discussed but in the early decades  17 of this century, a new problem came into play which  18 was the chronic depletion of various spawning stocks  19 within the system.  The less productive stocks tend to  20 be over-fished and depleted in this -- the mixed stock  21 type of fishery as we have at the coast.  That  22 certainly appears to have happened in the Skeena  23 system from among all species.  The result of that is  24 that fishing grounds on many of the tributary systems  25 were left with very little resource base and the  26 Gitksan and Wet'suwet'en fisheries increasingly had  27 to -- have had to rely on the reduced number of stocks  28 that were still capable of maintaining themselves  29 under the increased fishing pressure represented by  30 the coastal fisheries.  So those are all effects  31 mediated through the effect of the coastal fishery on  32 the stocks themselves.  33 Q   And you have concluded those effects from your  34 observations and your research with respect to the  35 Gitksan and Wet'suwet'en fisheries?  36 A   That's right.  37 MR. GOLDIE:  I don't know that he's concluded it from any  38 observations he's given evidence on, my lord.  39 THE COURT:  I am not sure what his conclusions are.  I think  40 what he is telling me is that the consequences of the  41 industrial fishery on the coast has created a shortage  42 of salmon but I am not sure that's what he is saying.  43 MR. GOLDIE:  I took him to say that no effect on the early days  44 within a few decades, would have been competing, would  45 have reduced fish in certain stocks and there would  46 have been an increased reliance on others.  That's all  47 I have got out of it. 14001  M. Morrell (for Plaintiffs)  In Chief by Mr. Grant  Submissions by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. GRANT  Q  Yes.  You understand what his lordship understands your  conclusion being is that from what you have just  described.  What conclusions have you reached with  respect to the effect of the coastal commercial  fishery on the Gitksan and Wet'suwet'en fishery?  A   The coastal --  MR. GOLDIE:  Excuse me, my lord, but what does it matter?  The  claim is for ownership and jurisdiction over the  fishery today or at least when the writ was issued.  That's what the claim is for.  MR. GRANT:  Well, it raises the issue, my lord, as to -- and I  concur it raises the issue of when the crucial time is  with respect to whenever the rights of the plaintiffs  crystalize, if one may say that.  I don't want to say  that in a pejorative way.  But whether or not -- and  this is clearly an issue as to whether or not that  will be at the time of contact, at the time of the  issuance of the writ, or some intervening time with  respect to the impact of the fishery.  THE COURT:  Well, what is your answer to Mr. Goldie's rhetorical  question:  What difference does it make?  We have it  now that there was no problem with volume at the time  of contact and for some years afterwards.  Then there  started to be an industrial fishery and over a period  of time fish stocks depleted and some suggestion that  some stocks are now coming back.  But the plaintiffs'  rights arise as -- assuming they arise as of the date  of contact you are covered.  If they arise or if the  date of the writ is significant, and I think it is,  then your rights are whatever they were at that  moment, are they not?  And so --  MR. GRANT:  So —  THE COURT:  -- let's assume there is no fish at the moment or  there is an abundance of fish.  Is it any different?  MR. GRANT:  And that point, that conclusion as to the impact of  the commercial fishing on the abundance of fish, I  understand that your lordship says, and that's not  what I was asking the witness.  I was asking if there  was any other effects other than the abundance -- the  affect on the abundance of fish, and I am talking not  just on the fishery as to quantity of fish but on the  fisheries management, the Gitksan-Wet'suwet'en  management system.  THE COURT:  Well, I suppose your friend's questions can apply to  that as well.  What difference does that make either? 14002  M. Morrell (for Plaintiffs)  In Chief by Mr. Grant  Submissions by Mr. Grant  1 If they manage the fish as he's described throughout  2 the period, they are managing a lesser supply or a  3 larger supply, but --  4 MR. GRANT  5 THE COURT  6 MR. GRANT  Well, my question --  I mean I am of --  The only effect is the supply of fish, which I  7 understand your lordship has.  If that's the only  8 effect, then I wanted the witness to say that.  But if  9 there is other effects on the Gitksan and Wet'suwet'en  10 fishery, I mean that I'm -- other than quantity of  11 fish, that the witness should be able -- he has  12 concluded there is other effects on the Gitksan and  13 Wet'suwet'en fishery, that he should explain what they  14 are.  15 THE COURT:  Well, I am not sure that I grasped -- I am not sure  16 you did --  17 MR. GRANT:  I may not have phrased it —  18 THE COURT:  — ask the question of other — other effects or  19 other impacts than a shortage of fish.  If you want to  20 pursue that at the moment, I don't have any objection  21 to it and at the moment I'm just uncertain and I think  22 perhaps you ought to ask that question.  I don't think  23 you have yet.  But I don't --  24 MR. MACAULAY:  My lord, the witness has not said that there is a  25 shortage of fish.  2 6 THE COURT:  Oh, no.  27 MR. MACAULAY:  But he is only talking about stocks of fish.  28 THE COURT:  That's all he said up to now.  2 9 MR. MACAULAY:  Which —  30 THE COURT:  Some stocks became —  31 MR. MACAULAY:  Some stocks —  32 THE COURT:  Greater reliance on other stocks.  33 MR. MACAULAY:  Some tributaries had less fish.  34 THE COURT:  Yes.  35 MR. MACAULAY:  Presumably.  36 THE COURT:  I think we are in real trouble here, Mr. Grant.  37 Only you can get us out of it by asking another  38 question.  39 MR. GRANT:  I would be happy to.  40 Q   From what you described yesterday and this afternoon,  41 the effect of the commencement of the commercial  42 coastal fishery was impacted -- had an effect on  43 the -- did it have an effect on the quantity of fish  44 in the Gitksan and Wet'suwet'en area?  45 A   Yes.  46 Q   Okay.  And just to clarify that, did it have an effect  47 on the overall quantity or on specific stocks? 14003  M. Morrell (for Plaintiffs)  In Chief by Mr. Grant  Submissions by Mr. Grant  1 A  Well, both.  Fish that are caught on the coast don't  2 arrive inland.  3 Q   Yes.  4 A   So that's -- that's an obvious fact.  So within any  5 season, the greater the coastal catch the fewer the  6 fish are available inland.  Another effect of the  7 coastal fishery has been the long-term depletion in  8 most stocks in the system.  That effectively has made  9 fishing impossible or unrewarding in several of the  10 tributary systems.  That decline of those stocks.  11 Q   Can you give an example of tributary systems within  12 the Gitksan and Wet'suwet'en area where -- that that  13 reflects on?  14 A   Chinook salmon on the Kispiox River, sockeye salmon in  15 the Bulkley River.  I'm not saying that all of these  16 declines are explicitly attributable to the fishery.  17 However, the widespread nature of the phenomenon and  18 the key incidence with the fishery is quite  19 significant.  They have to be looked at on a stock by  20 stock basis.  Sockeye salmon in the Bear/Sustut  21 system.  There is perhaps not a need to enumerate all  22 of the -- all of the stocks for which there are data  23 available to show that the average returns in recent  24 years are less than the target escapements or the  25 capacity of the system.  Those data are contained  26 within evidence that's already been tendered and  27 discussed.  What I have cited are some examples.  28 Q   Okay.  Aside from that impact on the stocks within the  29 Gitksan and Wet'suwet'en fishery and the quantity of  30 fish within the fisheries --  31 A   Yes.  32 Q   -- are there any other impacts that you have concluded  33 as a result of the commercial coastal fishery?  34 A   To the extent that the Federal regulation of both  35 coastal and inland Indian fisheries is a result of the  36 commercial fishery at the coast, the attempts by the  37 Federal Government to regulate the fishery have  38 certainly impacted the Indian fishery.  So in that  39 causal link I think is there.  Whether it should be  40 listed as an impact of the coastal fishery or some  41 other thing, certainly Federal regulations and Federal  42 enforcement activities in the Gitksan and Wet'suwet'en  43 area have had an impact on the fishery.  44 Q   Okay.  You may anticipate the next question which I  45 have, which is:  Have you come to any conclusions as  46 to the impact -- first of all, before I go to that,  47 what relevance as a fishery scientist, what is the 14004  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. Morrell (for Plaintiffs)  In Chief by Mr. Grant  Submissions by Mr. Goldie  relevance to you of analysing the commercial coastal  fisheries and their impact on the fishery that you are  studying, that is the Gitksan and Wet'suwet'en  fishery?  A   In order to understand the fishery you have to  understand the fish populations and the harvestors.  The fish populations are affected by the coastal  fisheries and thus the Indian fisheries are affected  by the coastal fisheries.  Q   What I'd like to ask you, you commenced to lead into  that, and that is, did you study the effect of the  regulation by Canada of both the ocean and the Gitksan  and Wet'suwet'en fishery as part of your study of the  Gitksan and Wet'suwet'en fishery?  MR. GOLDIE: Well, suppose he did? There is no issue directed  towards the regulation of the fishery by the Federal  Government.  THE COURT:  Well, there is no issue of that, but it seems to me  that the consequences may have a bearing.  I am not  sure what the bearing is on the issues.  If as a  result of for any reason -- well, all right.  Let me  put it to you this way, Mr. Grant:  Let's assume that  for unknown reasons, which for the purposes of this  discussion are not relevant, if Canada decides -- has  decided to severely limit the amount of the inland --  the take of the inland fishery, let's assume that, I  think that's what your people have been telling me for  some time anyway.  I heard about the prosecution of  Mr. Art Matthews Sr. and things like that.  What issue  does that go to?  What difference does it make?  MR. GRANT:  Well, what — as I —  THE COURT:  I mean keeping in mind we know that there was fish  at the time of contact and they were abundant up to a  certain time.  Let's assume that the regulation has  caused them now to be very unabundant.  As Mr. Goldie  says, what difference does that make?  MR. GRANT:  Okay.  I am moving into another area, my lord, and  the -- to the extent that the regulation and the fact  that the Federal policy is a policy that allows a  large commercial coastal fishery that affects  quantity, I am not talking about that.  What I'm -- or  I am not seeking to adduce that.  The witness has  explained the effect of the commercial coastal fishery  on the inland fishery in that regard.  What I'm  seeking to adduce is the effect of the regulation or  effort at regulation by Canada on the  Gitksan-Wet'suwet'en fishery regime, and I am saying 14005  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:  M. Morrell (for Plaintiffs)  In Chief by Mr. Grant  Submissions by Mr. Grant  regime or fishery management scheme or the fishery  system.  This witness has studied the fishery  management system of the Gitksan and Wet'suwet'en and  what effect in terms of -- it's a factor like any  other factor.  If for example -- if for example, there  was a slide -- there was the slide at Hagwilget at  1820.  There is a slide at the Babine in 1851.  There  is a slide just downstream of Lagate Creek that  blocked all of the fish from the Gitksan-Wet'suwet'en  area.  That would be an impact.  And in order for him  to give opinions as to the Gitksan and Wet'suwet'en  fishery, it would be relevant for him, I would say, to  say what is the -- what affect did that have.  In  other words, what did the people do at that time.  Well, that would be so if the purpose of this trial  was determined and it was to determine the welfare of  the Gitksan and Wet'suwet'en people.  Particularly  with regard to fish for food.  But that's not the  purpose or inquiry.  I am having trouble -- to be very  frank, I am having trouble to see what this has to do  with the case at all.  The more we go, the more I am  struggling to try and find the issue.  Well, my lord, if you take the fishery management of  the Gitksan and Wet'suwet'en as a paradigm of the  management -- I shouldn't use that word, my lord.  I don't know what it means.  Model I think.  A model.  If you take that as a model, that's why I  immediately -- it's the time of day, my lord, that I  move into words like that.  But if I -- if you take it  as a model for the Gitksan and Wet'suwet'en's exercise  of jurisdiction, and I am talking here about the de  facto, what actually occurs, what has occurred, what  is occurring.  You have been telling me that.  I have heard all of  that.  And if you take that as a model and then there is --  there is -- as I say, if there was a slide down at the  mouth of Lagate Creek that blocked all of fish, say in  1950 or 1970 --  Yes.  -- then that certainly would be relevant, or in 1877  for that matter, that would be relevant I would say in  terms of his explanation of the -- of the fishery  management system.  Because if he didn't take that  into account, that slide that blocked all the fish,  then his -- his analysis of the fishery management  would be -- would be to some degree fanciful if there  MR. GRANT:  THE COURT  MR. GRANT  THE COURT:  MR. GRANT:  THE COURT  MR. GRANT 14006  M. Morrell (for Plaintiffs)  In Chief by Mr. Grant  Submissions by Mr. Grant  1 were, let's say, no fish came up for ten years.  2 THE COURT:  He would be managing a nil resource, so he wouldn't  3 be managing at all.  But if that happens or if it did  4 happen, I don't see how it affects the legal rights of  5 any of these parties as between themselves.  6 MR. GRANT  7 THE COURT  8 MR. GRANT  Well —  Interse, as the lawyers would say.  Well, the legal rights that -- what I am saying is  9 that in looking at the exercise of the fishery  10 management of the Gitksan and Wet'suwet'en and as you  11 have indicated and as I have indicated -- I mean our  12 position may well be -- our position will not be the  13 same as the defendants, but the defendants give a  14 whole range of time of extinguishment and as a key --  15 key time of extinguishment from the defendants' point  16 of view with respect to the fishery would be the time  17 of the implementation of the Fisheries Act and the  18 regulations governing the fishery.  Now, I am not  19 conceding that point, but in order for you -- you may  20 be -- that's an issue that you are going to have to  21 decide and what I -- given that fact occurred just  22 like a slide at Hagwilget occurred, that it's relevant  23 for the witness to explain the impact, his conclusion,  24 is the impact on that, on the Gitksan and Wet'suwet'en  25 fishery.  26 THE COURT:  At the moment I don't see what difference it makes.  27 So there is a slide.  So the resource is reduced and  28 if the slide is cleared the resource is increased  29 again.  But it doesn't seem to me that that makes any  30 difference except in qualitative -- quantitative  31 sense, rather, of the question of management.  You  32 take management to be one of the indicia of  33 jurisdiction or sovereignty or ownership or whatever  34 you want -- whatever word you want to put on it.  He  35 has told me about the management.  Let's assume for  36 the purpose of discussion that management is a given.  37 What difference does it make whether the stocks are  38 depleted for external reasons or they are increased  39 for other reasons?  If the management is there, then  40 you have proven what you need to prove for that part  41 of your case.  But I don't see where -- I don't see  42 where it makes any difference whether there is more  43 fish or less fish if you have got management.  44 MR. GRANT:  I — and I am —  45 THE COURT: Sounds like court services. All they worry about is  4 6 management. They don't worry about how we get through  47 the trials.  But it's a perennial inter-disciplinary 14007  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:  M. Morrell (for Plaintiffs)  In Chief by Mr. Grant  Submissions by Mr. Grant  problem.  But I don't see what difference it makes how  many are -- how many fish there are.  I am not asking the witness at this point how many  fish there are.  Where this objection commenced is I  asked him about -- if he studied as part of the -- his  study the fishery management the impact of the  regulation of the fishery by Canada.  That is the  regulation of the Gitksan-Wet'suwet'en fishery.  In  other words how -- what conclusions did he arrive at  as to the inter-meshing or non inter-meshing of that  with the Gitksan and Wet'suwet'en and the thesis that  you -- that may be pressed upon you to consider that  whatever fishery is left.  Not quantity.  I am talking  about whatever fishery, jurisdiction over the fishery  is left, it's what's left in 1984.  Yes.  On the assumption that that is argued, then it's  relevant to hear what this witness' conclusions are  with respect to that.  Well, if you asked him that, I am not sure I would  have an objection. But I don't think that's what you  have been asking him. What you have been asking him  is what was the effect of the enlargement or increase  in the coastal fishery and what effect did that have  on Wet'suwet'en. And I don't see what difference it  makes.  Oh, no.  I am sorry, my lord.  The question was -- I  was moving into another area and you may have missed  it.  I may well have done.  All right.  Let's start again  by having you ask the question.  But I think we will  take a short adjournment.  (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT)  THE COURT:  All right.  Mr. Grant, as you were saying when you  were so rudely interrupted.  Mr. Grant, I really can't  find any relevance to this.  I have searched my mind  about it and I can't find much relevance about it.  Persuade me.  MR. GRANT:  Okay.  The relevance, I submit, is the impact, if  any, of the regulation by the DFO on the Gitksan and  Wet'suwet'en management system.  That regulation, the  impact of that at the time of the issuance of the writ  is the relevance.  Has it -- is there a management  system of the Gitksan and Wet'suwet'en fishery and  left is a figment of what was there or something else.  MR. GRANT:  THE COURT: 14008  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. Morrell (for Plaintiffs)  In Chief by Mr. Grant  Submissions by Mr. Grant  The reason that that is relevant is because in the --  in this --  THE COURT:  Mr. Grant, at the moment I am prepared to concede  that.  The particulars of the management system may be  relevant and the changes in the management may be  relevant.  But for the life of me I can't see what  difference it makes why there are changes in that  system or what causes them.  We are talking now about  management as an indicia of sovereignty or of  ownership.  MR. GRANT:  Jurisdiction.  THE COURT:  Title or jurisdiction or something.  MR. GRANT:  Yes.  THE COURT:  Why the — why the — why they change it or — I  mean I wouldn't stop the witness from saying well,  there was a decrease in the supply of or in the number  of fish and therefore this change happened or that  change happened.  But why the number of fish changed  seems to me to be quite irrelevant.  And that was  really the basis for my initial ruling.  And it seems  to me we are coming back to that.  MR. GRANT:  No.  Well, I'm away from the quantity of fish, my  lord.  THE COURT:  As I say, why does it make any difference or how  does it make any difference why they changed the  management system?  Surely the test is was there a  management system and what were its particulars or  features.  MR. GRANT:  And is there a management system as at the time of  the issuance of the writ.  THE COURT:  Yes.  MR. GRANT:  And that's what I am trying to —  THE COURT:  Yes.  And I thought that's what the witness told me  about this morning.  He said that they fished in the  same place.  They only take what they want.  They  organize their fishing so that they are after certain  stocks and species at certain times and certain places  and that sort of thing and I think you have said all  that.  Or the witness has said all that.  And if you  want to say something -- to have the witness say  something more about that, I am -- I haven't got any  objection at the moment that would stop you from  adducing that evidence.  But I don't think it matters  that the management changes, if any, were caused by  regulation or over-fishing in the coast or rock slides  in the canyon or whatever they were.  If you want to  postulate that there were changes necessary because of 14009  M. Morrell (for Plaintiffs)  In Chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR. GRANT  THE COURT  MR. GRANT  THE COURT  MR. GRANT  Q  A  a reduced or a changed number of fish, then of course  that's just a matter of immediate history and there is  no harm in saying that's why the change was made.  But  the real question is what was the nature of the  management system that was in place.  You have said  something -- you have said what it has been  historically and generally and if you want to  concentrate on what it was at the date of issuance of  the writ or anything of that kind, at the moment I am  of the view that you should not be allowed to do it,  but I don't think it matters why the terrible Feds  brought all this about or why they didn't, if such was  the case.  Oh, I am not concerned about why the Federal  Government made the regulations at all.  And that's  not what I am --  All right.  Why don't you get us out of this trouble  again by asking another question.  I will endeavor to do so.  All right.  Thank you.  As a result of your research, have you concluded that  the Gitksan and Wet'suwet'en management system that  you have described, have you -- how it has been  affected since the implementation of regulation by the  Federal Government?  The regulations that the Federal Government lays down  regarding Indian fishing in the Gitksan/Wet'suwet'en  area create a conflict situation for the fisheries and  for the chiefs from the point of view of a fisher.  He  has or she has two different authorities saying what  the regulations are and the regulations are in  conflict.  There are sanctions that may be applied to  him by both authorities.  That's caused -- that has  brought about some changes in the system.  Notably  there have been changes in the gear used in the  fishery.  Much of the live capture gear has been made  illegal by the Fisheries Act and the fisheries  officers have been able to enforce that.  That is  weirs and traps are no longer widely used in the  territory.  The Federal regulations require Indian  fishermen to get a permit to fish.  Many fishers do  take out these permits.  They cost them nothing and if  they don't, they stand to have their gear confiscated  or perhaps be cited and drawn into a court situation  where they may be fined or otherwise punished.  These  food fishing permits tell fishermen that they may fish 14010  M. Morrell (for Plaintiffs)  In Chief by Mr. Grant  1 anywhere they like in a wide area.  The chiefs tell  2 them you must fish at specific locations.  With very  3 few exceptions, the fishers fish where the chiefs say  4 that they must fish and don't avail themselves of the  5 opportunity to fish elsewhere that the permit offers  6 them.  The Federal regulations may require them to not  7 fish at particular times.  In many cases such as  8 closures during the pink salmon runs which have  9 been -- there have been regulations to that effect in  10 the time that I've studied the fishery.  The efforts  11 during the pink salmon run tends to drop whether there  12 is a closure or not, because people are not interested  13 in catching pink salmon.  14 Q   During the period of time you were studying the  15 fishery in some years there were closures, in other  16 years there were not?  17 A   That's right.  18 Q   So you could make a comparison?  19 A   That's right.  20 Q   Okay.  Go ahead.  21 A   On the other hand, some people found it necessary to  22 fish during the pink salmon run if they hadn't been  23 able to secure their sockeye supply, for example, or  24 if they were interested in fishing for coho which were  25 present at the same time.  I've observed on many  26 occasions that people will fish during periods when  27 the Department of Fisheries regulations say that the  28 fishery is closed.  Likewise, the Federal regulations  29 prohibit fishing in certain areas and certain  30 tributary systems.  For example, the winter fishery  31 for steelhead in the Kispiox River is illegal under  32 the regulation, under government regulations.  I am  33 not sure whether in this case we are talking about  34 Federal or Provincial.  People continued to utilize  35 that fishery.  They have permission to from the  36 chiefs.  They don't have permission from the  37 government agencies and they fish.  To sum up, to some  38 extent people do comply with the Federal regulations.  39 In my view the Indian system, the Gitksan and  40 Wet'suwet'en systems continue to be the dominant force  41 governing behaviour of fishermen on the Skeena.  42 People are placed in conflict situations.  In some  43 cases it may be more convenient for them to obey the  44 government regulations, the Federal or Provincial  45 regulations than not to.  At times there is no  46 substantial conflict for them.  47 Q   Can you give an example of where there is no 14011  M. Morrell (for Plaintiffs)  In Chief by Mr. Grant  Submissions by Mr. Grant  1 substantial conflict?  2 A   I am trying to think who it was.  I think it was Ernie  3 Hyzims.  Certainly it was one of the fishermen who is  4 a chief who showed me a food fishing licence issued in  5 his name.  I asked him why he had that.  I knew there  6 had been discussion among the chiefs talking about  7 the —  8 Q   Go ahead.  Why did he have them?  9 A   He said, "Oh, the fishery officer came by my house and  10 gave me this licence and I took it."  He said, "I  11 could fish seven days a week in the Skeena.  I don't  12 want to fish seven days a week in the Skeena."  But it  13 didn't keep him from doing anything that he wanted to  14 do.  It was not a problem for him to take the licence.  15 Q   You gave evidence earlier about sale and trade of fish  16 today?  17 A   Yes.  18 Q   And Mr. Macaulay, I believe, referred to regulation --  19 in any event, it's common that there is a regulation  20 prohibiting sale of Indian-caught fish that is under  21 the Federal Fisheries regulations.  Have you --  22 A   Sale and trade continue in the area.  People that need  23 fish are able to get fish.  That is non-Indians.  24 Indians who don't fish.  Anybody who is connected to  25 the Indian community who needs fish can get fish.  26 Q   During the course of your study, did you ever observe  27 a live trap method of fishing?  28 A  Well, dip netting might fall into that category.  Also  29 Adam Gagnon built a trap with modern materials but  30 based on Wet'suwet'en design, to fish at Moricetown  31 Canyon in an attempt to capture pink salmon and get  32 them out of the way of the fishery that was going on  33 directed at coho and steelhead which were in the area.  34 Q   Okay.  Do you recall what year that was?  Or it was  35 during one of the years that you were studying the  36 fishery and you observed it?  37 A   Yes.  I can figure it out.  It was probably 1982.  I  38 can't immediately recall.  I would say it would be one  39 of the years between 1979 and 1982.  Probably not  40 1979.  I am not sure of the exact years.  41 Q   In that period?  42 A   Yes.  43 MR. GRANT:   My lord, I would propose at this time — I know  44 it's -- I know you have given me a larger quota than  45 ten to six, but I would propose to stop now.  I have  46 completed -- substantially completed my  47 direct-examination.  I would like to review it.  There 14012  M. Morrell (for Plaintiffs)  In Chief by Mr. Grant  Submissions by Mr. Goldie  1 is one matter I must talk with Mr. Rush concerning  2 another witness which he was dealing with.  And I  3 would propose, subject to your lordship's scheduling,  4 that if we commenced at 9:30 tomorrow, I don't think I  5 would even be half an hour, but I just want to review  6 my material.  I am substantial -- pretty well  7 completed all of my examination.  8 THE COURT:  Well, I will make a deal with you, Mr. Rush — or  9 Mr. Grant.  How about quarter to ten?  There are some  10 matters that I have to attend to.  11 MR. GRANT:  That's perfectly satisfactory.  12 MR. GOLDIE:  Could you add to that a term, my lord?  No longer  13 than 20 minutes?  14 MR. GRANT:  Well, I said half an hour, so —  15 THE COURT:  Yes.  Well, I always believe what counsel tell me  16 and Mr. Grant says he'll be no more than half an hour.  17 Will that permit us to finish tomorrow?  18 MR. MACAULAY:  I hope so, my lord.  I don't expect to be all day  19 and I understand Mr. Goldie doesn't have an extensive  20 cross-examination.  21 THE COURT:  All right.  Well —  22 MR. MACAULAY:  That depends.  23 THE COURT:  Should we talk now about sitting late tomorrow night  24 so that we do?  25 MR. GOLDIE:  I would like to know what it is my friend is going  26 to talk about tomorrow.  If he tries to -- I shouldn't  27 say if he tries to.  If it occurs to him that it is  28 necessary for his case to bring up some of the matters  29 which haven't been touched on, it's -- it could -- we  30 could be here for some time.  31 THE COURT:  Well, I am sure that may be right.  I'll have to  32 leave to counsel to do whatever they think they have  33 to do tomorrow.  I don't think we should push on.  I  34 would prefer to finish tonight, but I think that if  35 there is a reasonable prospect we can finish tomorrow,  36 then counsel want to stop now, the hour is late and I  37 think that the course of wisdom is to adjourn.  38 Can we start at quarter to ten?  39 MR. GRANT:  That's satisfactory.  40 MR. GOLDIE:  There is one point that we might take some time at.  41 Just a couple of minutes, my lord.  42 MR. GRANT:  May the witness stand down?  43 THE COURT:  Oh, yes.  44 MR. GOLDIE:  Oh, yes.  45 THE COURT:  Thank you.  You are finished for today.  46  47 (WITNESS STOOD DOWN) 14013  Submissions by Mr. Goldie  1 MR. GOLDIE:  The question was raised about the way in which  2 Exhibits 948 and 949 were dealt with.  And I've  3 thought I had here, my lord, the transcript reference.  4 THE COURT:  94 8?  5 MR. GOLDIE:  Weren't those the documents that were marked at Dr.  6 Mills' —  7 THE COURT:  Oh.  Oh, yes.  Yes.  All right.  8 MR. GOLDIE:  And your lordship -- and I am going to refer to  9 Volume 199 of the transcript.  10 THE COURT:  They were admitted for a limited purpose, the note I  11 have.  12 MR. GOLDIE:  Yes, that is correct.  And I think it's important  13 that the context of why they were admitted and for  14 what purpose they are admitted is known to your  15 lordship, because it bears on the admission of a  16 selection of interview notes that my friend tendered.  17 THE COURT:  That's 974 for identification.  18 MR. GOLDIE:  974 for identification.  19 THE COURT:  Yes.  20 MR. GOLDIE:  The background is this, as I understand it:  Mr.  21 Rush tendered a volume of documents consisting of  22 interviews, 948 and 949, as being matters referred to  23 by Dr. Mills.  The discussion arose because a letter  24 had been sent to Mr. Mackenzie saying these are the  25 interviews that Dr. Mills has relied upon and they  26 were different than the ones that were in the book.  27 After the discussion went back and forth your lordship  28 at page 13084 said this:  29  30 "I'm not sure that there's any difference in  31 principle here between what's happening or what  32 Mr. Rush wants to happen, and what would be the  33 case if a witness were to say I relied upon all  34 the books on anthropology in the Smithsonian  35 Library."  36  37 And then at line 33:  38  39 "For that reason it's my judgment, which I think  40 is consistent with what has happened at this  41 trial, to allow counsel to put before the court in  42 convenient form a broader collection of the  43 material or the underlying material upon which the  44 witness says she relies".  45  46 Now, in that case it was finally established that  47 everything that Dr. Mills relied upon in arriving at 14014  Submissions by Mr. Goldie  1 her interpretation and her opinion was then filed to  2 be used in exactly the same way as if she pulled a  3 text off the shelf and said, "Here's a book that I  4 have relied upon."  The only objection that I take to  5 what my friend is proposing is that he is not putting  6 before the court everything which the witness has  7 relied upon.  It's a selection.  If he wishes to put  8 before the court in exactly the same terms as your  9 lordship stated with respect to these documents 948  10 and 949, then I have no objection to it.  But my  11 objection stands with respect to taking a selection  12 and saying these are some of the ones that you relied  13 upon.  14 THE COURT:  Was that — that was in Dr. Mills' evidence in  15 chief, wasn't it?  16 MR. GOLDIE:  Yes, it was, my lord.  17 THE COURT:  Well, let me challenge your premise for a moment,  18 Mr. Goldie.  I am not sure that notwithstanding the  19 restraint I showed in the example I used that  20 everything Dr. Mills relied upon was put in evidence.  21 I think it may be that -- well, I don't even think  22 everything in the bibliography was put in.  23 MR. GOLDIE:  No, no.  That's true.  24 THE COURT:  Are you saying that everything that was included in  25 the body of interview evidence was --  26 MR. GOLDIE:  Yes.  27 THE COURT:  — was in?  28 MR. GOLDIE:  Yes.  The discussion arose because Mr. Mackenzie  29 said well, I wrote you letters saying what is it that  30 Dr. Mills relies upon, and I got this letter back with  31 some 18 interviews referred to, and there was some  32 discussion about that.  And then Miss Koenigsberg  33 said -- suggested you should have notified Mr.  34 Mackenzie of these.  And the court at page 13081:  35  36 "Well, would it be accurate to put the question  37 the other way, and that is are you asking whether  38 this now -- this collection now includes some that  39 have been transcribed, but not previously  40 furnished to you, because obviously she hasn't got  41 any transcripts there that haven't been  42 transcribed."  43  44 Then there was a discussion about that.  And Mr. Rush  45 said:  46  47 "My understanding is that are some here that were 14015  Submissions by Mr. Goldie  1 not duplicated in this disclosure   Now,  2 what I've tried to do is for the disclosures, or  3 at the least the ones that have already been  4 separately exhibited and have been separately  5 disclosed are contained in volume 2.  6 THE COURT:  Are you saying, Mr. Rush, that  7 everything that is in the two volumes before the  8 witness now was disclosed either on November 10th  9 or November 15th, 1987?"  10  11 And Mr. Rush:  12  13 "Subject to three pages and seven pages which were  14 disclosed on February the 28th.  15 THE COURT: All right."  16  17 THE COURT:  All right.  Well, Mr. Goldie, Mr. Rush, if he were  18 here, might take exception to this, but no doubt he'll  19 read these words in due course and I'll be glad to  20 hear him.  But my sense of all this is that  21 notwithstanding the marking of those two Exhibits, 948  22 and 949, for the limited -- for a limited purpose is  23 that it was useful to mark them so that if they were  24 to be referred to in cross-examination, they would be  25 readily available.  26 MR. GOLDIE:  Yes.  27 THE COURT:  But apart from that, if they weren't used in  28 cross-examination, the plaintiff couldn't use them in  29 argument to prove the facts stated in them, but the  30 defendants could use them to show that within the body  31 of material upon which she relied there is material  32 that didn't support the conclusions that she reached  33 and upon which she said -- I am sorry, and in respect  34 of which she said she had relied upon this material.  35 And I would think the same thing would happen here is  36 that if it's convenient to have these exhibits for  37 cross-examination of this witness, they are here, they  38 are marked, they are collected together and they are  39 conveniently located and there can't be any dispute  40 between counsel, but what it is that the witness said  41 he relied upon and what he didn't, but that that's as  42 far as they go.  They can't be used to prove the truth  43 of what's in them.  But later on in argument -- well,  44 I am sorry, I may have misstated too narrowly a moment  45 ago.  In argument the plaintiff could not use them to  46 prove the truth of the facts stated in them, but the  47 plaintiff could use them to show that the conclusions 14016  Submissions by Mr. Goldie  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  were based upon at least rationally foundationed upon  the material that's there and the defendant could do  the opposite, can say she said that she said X and she  said the reason she arrived at that conclusion was  because of the material she relied upon and here it is  and it doesn't support that.  And from an intellectual  or a rational point of view both counsel could use the  material that's in to show that the opinion is at  least consistent with the underlying material, the  conclusion or the opinion is consistent with the  underlying material, but they still don't prove the  facts that are stated in them.  MR. GOLDIE:  Well, there may be some -- your lordship put this  question to Mr. Rush.  He said at page 13083:  "In addition to that, in my submission, you're  entitled to see it by that reference where I  choose, or where I think it's significant for you  to see the body of underlying material to which he  has made reference."  THE COURT:  MR. GOLDIE:  Yes.  "THE COURT:  You mean in argument?  MR. RUSH:  Well, now in the course of the examination  and as well in argument, yes."  THE COURT:  Well, I wouldn't preclude the right on some occasion  to look at the material during the course of the  examination, but it didn't arise and it's not likely  to arise here.  But if it did happen, I wouldn't think  I would be precluded from doing so, especially if  counsel asked me to.  But when we get to argument it  seems to me that it goes no further than what I have  said.  Counsel can show that the conclusions were  rationally foundationed to by some material or it  wasn't.  Logically, intellectually, rationally  consistent.  It doesn't prove the underlying facts.  MR. GOLDIE:  Well, I have never taken it as proving the  underlying facts.  THE COURT:  I am sure that's right.  MR. GOLDIE:  But I am troubled by the proposition that a  selection can be put forward, and not the whole, for  the limited purpose that you are referring to.  It  leaves the defendant with the proposition that do we  now match those that have been put forward with others 14017  Submissions by Mr. Grant  1  2  THE  COURT:  3  4  5  MR.  GOLDIE  6  THE  COURT:  7  MR.  GOLDIE  8  9  THE  COURT:  10  MR.  GOLDIE  11  12  13  14  15  16  17  THE  COURT:  18  19  20  MR.  GOLDIE  21  THE  COURT:  22  MR.  GRANT:  23  THE  COURT:  24  MR.  GRANT:  25  26  27  28  29  30  31  32  33  THE  COURT:  34  35  MR.  GRANT:  36  THE  COURT:  37  MR.  GRANT:  38  39  40  41  42  43  44  45  46  47  THE  COURT:  which contradict that or are we content to --  Well, it seems to me it's competent for you to put  to the witness you say you relied on these, did you  also rely on these other ones.  :  Well —  But —  :  Over here the books that came in of documents on  March 22 and March 23, they —  Being the documents relied upon by Mr. Morrell?  :  Yes.  Yes.  And that's completely separate from the  body of land claim interviews which we've been talking  about so far.  I am going to rest my position that it  is, I think, improper for a party to put forward as  the supporting material in evidence even for a limited  purpose unless he puts forward the whole of that  material and I am content to leave it on that basis.  And to comply with that, the plaintiff would have to  put in as part of this exhibit those five or six  volumes?  :  Yes.  Yes.  Well, Mr. Grant?  My lord, that isn't even all of it.  Pardon?  I'll happily concede that isn't even all of it.  Because what happened was is, as is the practice, a  listing was made, correspondence sent to both counsel  for the defendants saying here is what Mr. Morrell  relies on.  Here is a listing of files.  And if my  friends are serious about that I can assure you, my  lord, it's not five volumes.  It's three filing  cabinets.  And I am not -- I don't think that that  helps us one iota.  What are these five or six or one, two, three,  four --  What happened was is that the defendant --  Six volumes.  The Federal defendants requested some documents.  I  don't know whether there was communication or not, but  they -- there was a split.  They said we would like  this and the Provincial defendants said we would like  this.  And these letters came to me.  And so then the  documents were -- the documents include also some maps  that were not able to be duplicated.  The originals  were sent and that kind of thing.  So what was sent to  the Provincial defendants is again a selection and  it's their choice of selection.  That's right, yes.  All right.  Well, then, what is 14018  Submissions 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.  THE  GRANT  COURT  MR. GRANT  THE  MR.  THE  MR.  THE  COURT  GRANT  COURT  GRANT  COURT  MR. GRANT  THE  MR.  THE  MR.  COURT  GRANT  COURT  GRANT  the basis for the selection of the --  The lands claim interviews?  limited documents that are here in Exhibit 974  for identification?  Okay.  What that contains is all of the interview  notes of Mr. Morrell.  Yes.  As I have described.  His interviews plus -- yes.  All right.  Yes.  Plus  a transcript interview of Rufus Good deceased in 1973.  That's right.  And a number of interviews from number 15 to 2 9  conducted by other persons.  Those latter -- except for the Rufus Good interview  and the Morrell interviews, those latter interviews  are similar to Exhibit 948 and 949.  My understanding  and advice from Mr. Rush is that what he did in  Exhibit 948 and 949 is put in all of the land claims  interviews of the Wet'suwet'en.  Mr. Morrell relied on  those and refers to them.  Well, do you --  Also all of these -- I am sorry, my lord?  Go ahead.  Regarding the Gitksan land claims interviews that  are in that, they are the ones that appeared to be  pertinent, particularly pertinent with respect to the  fishery.  In other words, there is land claims  interviews that Mr. Morrell read and may have one or  two lines about a fishery in them.  Didn't seem to me  that it was -- didn't seem in discussion with Mr.  Morrell that they were that important.  Although he  certainly referred to them and he relied on them.  So  what I endeavored to do was to not to select -- and  I -- subject to what Mr. Rush has to say and I  haven't -- I don't have -- I haven't reviewed that  portion of the transcript that my friend was referring  to or I don't have it here to refer to, but subject to  what he says I understand the purpose is as you have  indicated.  If my friend is saying well, the other  Gitksan land claims interviews and fish management  study interviews upon which the witness has relied  should be incorporated in that volume, and in that  case then it's -- then they don't object and I -- I  don't really disagree with that.  I don't really -- I  don't want to spend a lot of time arguing over that,  because I don't think that that makes a lot of  difference aside from the question of photocopying and 14019  Submissions by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR.  THE  GRANT  COURT  MR.  THE  GRANT  COURT  MR. GRANT  THE COURT  MR. GRANT  THE COURT  adding another thicker binder.  All right.  Well, I am now -- I don't want to extend  this search for difficulty unreasonably, but I now see  another difficulty and that is if the defendants do  and mentioned a moment ago as something they might do,  that is put to the witness you say that you relied  upon these documents, but did you also rely upon these  other ones, that they may be making those other ones  admissible as truth of the facts stated and of course  they wouldn't do that.  And that does support Mr.  Goldie's argument that you ought not to be able to put  in a selection.  Well —  But I haven't really thought that through carefully  and that may be a ghost that I am worried about.  Mr.  Goldie will be in a better position to decide whether  there is a risk in that.  But if there is a risk in  that, well, it seems to support the idea that you  can't put in a collection.  But --  I don't think --  You answered that by saying you don't care, you will  put in the whole thing if that's what Mr. Goldie  wants.  The land claim interviews was what we were  discussing and that those ones referred to in the  course of the witness refers to published material and  other material.  I am not intending to put all of that  in.  I suppose I can -- I suppose I can achieve  substantial fairness here by allowing Mr. Goldie to  supplement your collection by a collection of his own  on the same basis.  Well, yes, I think so.  I mean I think that the  defendants -- you've left it open on many occasions.  The defendants, of course, have these disclosure of  documents so that they do that in any event, my lord.  Yes, all right.  I think we should all think about  it over night and review this fancy dialogue at some  convenient time tomorrow.  And when I say I think that  to achieve substantial fairness, that Mr. Goldie  should be allowed, and of course Mr. Macaulay too, if  he wishes, to put in a supplemental material to  supplement the collection, but I would think that he  could put in on the same basis therefore that it's  there for the purpose of affirming or refuting the  rationality of the conclusions and not as proof of the  facts stated.  Make an exception if I'm trying to 14020  Submissions by Mr. Grant  1 achieve some balance and fairness.  But whether that  2 is a discretion I have is a matter that counsel can  3 advise me on.  All right.  Quarter to ten, please.  4  5 (PROCEEDINGS ADJOURNED UNTIL FRIDAY, MARCH 31, 1989 AT  6 9:45 A.M.)  7  8  9  10 I hereby certify the foregoing to be  11 a true and accurate transcript of the  12 proceedings herein to the best of my  13 skill and ability.  14  15  16  17 Laara Yardley,  18 Official Reporter,  19 United Reporting Service Ltd.  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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