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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1989-09-12] British Columbia. Supreme Court Sep 12, 1989

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 19420  Proceedings  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  MS.  THE  MR.  THE  MR.  THE  MR.  SEPTEMBER 12, 1989  VANCOUVER, B.C.  REGISTRAR:  Order in Court.  In the Supreme Court of British  Columbia, this 12th day of September, 1989.  The  matter of Delgamuukw versus Her Majesty the Queen at  bar, My Lord.  COURT:  Ms. Russell.  RUSSELL: My Lord, Mr. Macaulay has asked me to make a couple  of comments this morning.  The Federal defendant is  very concerned with this argument on the Morrell  report, chapter 4 of the Morrell report, since Your  Lordship held in the first instance that certain parts  would not be marked under their lack of relevance to  the case.  We are now in the position, we are  preparing our own case, of course, and the expert's  report which we submit will be cut substantially,  depending on what parts of the Morrell report remain  excluded.  But we gather, since Mr. Grant intends to  re-argue this point, we would like to know as soon as  possible when it can be done, and have it set down  shortly.  We have so notified the plaintiffs on this  point.  The other matter that Mr. Macaulay asked that I  raise was that a date be set fairly shortly for the  business records' argument, since, of course, much of  our case will be based on the submission of those  kinds of documents. We'll have many submissions to  make on that ourselves, and would like to know when  that can be set down.  Thank you.  COURT:  All right.  Well, what do counsel say about that?  Are you able to speak for the plaintiffs, Mr. Adams?  ADAMS:  Yes, My Lord.  As far as the Morrell argument, I am  not in a position to say when it could be, and I am  not even aware of what Mr. Grant's intentions are, but  subject to his availability, there is no difficulty  with having the argument at a convenient time.  COURT:  Is he in town?  ADAMS: No, he's in a trial in Smithers, I believe, at least  four days of this week. But I can certainly reach him  today and report back.  COURT:  All right.  ADAMS:  As far as the business records' argument, that can  be at any convenient time, because I am responsible  for that.  But my understanding is that it depends on  an election by the plaintiffs as to whether to call  further trapline people, and as soon as that election 19421  Proceedings  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. ADAMS  THE COURT  MR. ADAMS  THE COURT  MR. PLANT  is made, which is to be by the end of this week, and  we know the date, if any, for that witness or  witnesses, then it seems to me we could schedule the  business records' argument.  And I have no difficulty  with that being as soon as possible, once that  question of calling further witnesses is set.  :  Am I hearing something that I should have in mind,  but I have forgotten, the plaintiffs calling more  trapline evidence?  Was that a matter that was  reserved as a possibility?  Have I heard of that  before?  :  What that -- there were further certificates of  conservation officers, and this came out of last week,  when Mr. Grant and myself were in court for the  plaintiffs, and Mr. Willms for the provincial  defendants offered to make available a number of  further witnesses who had delivered certificates.  :  I see.  Yes.  All right.  :  And the arrangement was that Mr. Grant was to let my  friends know by the end of this week whether he wished  to cross-examine any or all of those further  witnesses.  :  I recall now.  Yes.  All right.  :  I have some concerns with the second of these  housekeeping matters.  Because, I take it, from what  my friend Mr. Adams said yesterday, that he concedes  there would be some relationship between this  so-called business records' argument, which pertains  only, as I understand it, to the admissibility of  certain documents put to Mr. Brody during  cross-examination.  That, on the one hand, and on the  other the admissibility of the alienations project.  Now, as part of our scheduling my friend has known it  to be such for a long time that this week would be  devoted to the proof of the alienations project.  I  am, as Your Lordship is aware, I was ready yesterday.  I am ready today.  And I would most grievously want to  deal with this simple matter of translating these  exhibits for identification into exhibits proper some  time during this week, during the course of the week  set aside for that purpose.  Now, as I understand it, we have witnesses  scheduled for next week, matters that will start to  roll, including people who come from out of town to  give testimony.  It's important that we get things  done in the timetable that has been accepted to be as  devoted to such matters when they arise. 19422  Proceedings  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. PLANT  THE COURT  A, I am not persuaded by the argument the two  matters are linked; and B, even if there was some  relationship between them, then I suggest that if my  friends wished to exercise a right to cross-examine  some custodian of documents up north, then they should  make that election known today, not the end of the  week.  And in any event, My Lord, even if there was  some nexus conceptually between these things, why  can't the argument proceed in the absence of the  evidence of this custodian?  In fact it will be of  some assistance to my friend, because the argument  which he says is related will then yield from Your  Lordship some statement of principle which will be  applicable to the particular case of the district  officer custodian.  It may even alleviate the need to  call that individual.  :  Well, what have you scheduled for this week, Mr.  Plant?  How do you see the rest of the week being used  up now?  :  Well, I see the rest of the week being used up in  this way.  I have four more witnesses to call, who  will be giving evidence in respect of their  affidavits.  Three today, one tomorrow morning.  There  are a number of other affidavits, which I propose to  tender, and as I say, I would also like to have the  whole bundle marked.  Now, once that's done, Mr. Goldie is planning to  attend to lead historical documents that have been  described in certain letters to my friends.  And based  on a very rough estimate which my friend, Mr.  Guenther, I think, gave me yesterday, which I  certainly don't hold him to, he expects that the  cross-examination of the three witnesses set for today  will be finished by noon.  Should that be the case, I  have Mr. Goldie on-call, as it were, to be here this  afternoon to begin the process of reading the  documents, which would then occupy the balance of  Wednesday and Thursday.  That, I am now reminded by  Ms. Sigurdson, takes us to Friday.  And Friday has  been set aside again for some time for what I think  are called housekeeping matters.  A number of aspects  of the plaintiffs' case which remain outstanding when  they closed their case, some other points that require  argument.  So Friday was going to be set aside for  this housekeeping stuff anyway.  :  Yes.  All right.  MS. RUSSELL: I just add our comments to those of the Province, 19423  Proceedings  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. ADAMS  and that is that if the issue of business records is  now crystallized, we don't understand why it can't be  argued shortly.  THE COURT:  Well, is it reasonable and feasible to set it for  Friday morning?  MR. PLANT:  I would be happy to argue it Friday morning.  MS. RUSSELL:  Fine.  Thank you, My Lord.  THE COURT:  Mr. Adams?  MR. ADAMS:  My only comment is that the basis on which the  schedule is set up and on which that argument was  deferred was that it was appropriate for it to follow  any further cross-examinations on trapline materials.  And it is possible that something will arise from  that, that should be included as part of that  argument, and on that basis I am still seeking to have  it in the course that appeared to have been agreed  upon last week.  Well, it doesn't seem to me, Mr. Adams, that we are  going to use this week.  We are going to be down for  part of the week if we don't get on with it, aren't  we?  Well, My Lord, I don't think there is any difficulty  with filling Friday with what has been described as  housekeeping for the plaintiffs.  As far as the  balance of this week, there remains a difficulty, in  that Mr. Willms had indicated last week that -- well,  first of all we had indicated that there was some  difficulty in making available appropriate counsel to  deal with the arguments Mr. Goldie wanted to deal  with.  Mr. Willms comment was well, tell us who it is,  and we'll accommodate his schedule.  My friends have  now been advised that, I believe, Mr. Rush is  responsible for those documents, and he is available  as of Thursday morning, but not tomorrow, and yet, if  I understand my friend correctly, Mr. Goldie will come  anyway and do that tomorrow.  THE COURT:  He said this afternoon.  MR. ADAMS:  Or even this afternoon.  So my submission there will  be that Mr. Rush's schedule wasn't accommodated at  all, and it was simply announced that this begin.  And  we are in the same difficulty, that we can't have Mr.  Rush in court before Thursday morning.  MR. PLANT:  I am advised that there has been no suggestion that  Mr. Rush was unavailable Wednesday.  MR. ADAMS:  There was simply no enquiry, no communication.  MR. PLANT:  Well, this is a matter of some importance.  As far  as I am aware, there has been timely notification of 19424  Proceedings  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. PLANT  MR. ADAMS  THE COURT  MR.  THE  ADAMS  COURT  MR.  THE  MR.  THE  MR.  PLANT  COURT  PLANT  COURT  PLANT  the way in which we intended to prove our case.  Frankly, if I may so with respect, it's not our  problem that there seems to be some negotiation as to  who appears when.  As of last week the plaintiffs  hadn't even decided which lawyer was going to be given  the task of sitting here listening to the historical  information.  And I am anxious not to have down time.  I am anxious to use the time which has been set aside,  recognizing, in particular, that we have estimated for  Your Lordship the completion of the Province's case  by, I believe, something like the end of October.  October 23rd.  Well, the end of the third week, presumably, of  sitting in October.  Well, if that's the case, then I  am anxious that we do what we can to achieve that  goal.  Well, My Lord, if I can speak to that briefly.  What  was said in Volume 262 at page 19400 by Mr. Willms in  this connection was that:  "If it's another counsel, and what would be most  helpful if we knew who it was, we will make  sure that we organize when we do present it  with that counsel's schedule.  Maybe my friend  could tell me which counsel will deal with it  and then we'll know."  What followed from that is advice that Mr. Rush  would have to deal with those documents, which we  didn't know anything about until the end of last week.  Well, then, will it bring matters to some state of  certainty if we fix the argument on the matter Mr.  Goldie wants to pursue for Thursday morning?  That would be fine.  Is Mr. Goldie available then?  If counsel can't work  these things out, I am in a position where the  defendants can call it in whichever order they want  to.  I would like to see as much accommodation as  possible, but if it can't be worked out, then the  party calling evidence is entitled to proceed as it  wishes.  I am not sure what Your Lordship's proposal was.  Thursday morning.  For what?  For these historical documents.  So Mr. Goldie would not appear until Thursday  morning? 19425  Proceedings  1  THE  COURT  2  3  4  MR.  PLANT  5  6  7  THE  COURT  8  MR.  PLANT  9  10  11  12  13  14  15  16  17  THE  COURT  18  19  MR.  PLANT  20  21  THE  COURT  22  23  MR.  PLANT  24  25  MR.  ADAMS  26  27  28  29  THE  COURT  30  31  32  33  34  MR.  PLANT  35  36  37  38  39  40  41  42  43  44  45  46  47  : Well, if that's the part he is going to be looking  after, and that's the part Mr. Rush would be looking  after.  If that's convenient.  :  At the moment, My Lord, that means in all likelihood  that we wouldn't be sitting this afternoon or after  about 11 o'clock tomorrow morning.  : Is there nothing else that can be done?  :  Well, I assume that my friend will raise the same  objection as he has -- My Lord, the objection with  respect to the underlying documents for this is that  Mr. Grant is going to be making some motion or  something to that effect.  That was what I understood  yesterday, and he is not here.  Now we are hearing  that we can't produce or read in another kind of  evidence because Mr. Rush isn't available.  Well, at  the moment --  : What about the housekeeping matters that Mr. Adams  is suggesting could take most of Friday?  : Well, I am at a loss at the moment for inspiration  as to how we can fill the time that's available.  :  Well, I just suggested what about these housekeeping  matters the plaintiffs are talking about.  :  I'm sorry, I'll listen with interest to my friend on  that point.  :  Those of them I can speak to, My Lord, we will be  pressed to be ready on Friday.  I should say, My Lord,  that we are not off schedule.  We are simply finishing  things.  :  It doesn't seem to me -- well, will we be on  schedule if we have the argument Thursday morning, and  if the plaintiffs clean up their various -- clean up  their case -- that sounds almost critical -- clean up  these matters on Friday?  :  We'll be on schedule if by the end of Friday all of  this is proven had been tendered, if Mr. Goldie has  had an opportunity to read documents for a day, if all  of the matters set for Friday, the plaintiffs'  outstanding matters, which we are making time  available in our case to allow them to finish their  unfinished business, if those are dealt with, and I  think that that's it.  If we can call the next witness  on Monday.  And we should have this argument on business  records.  But frankly if the argument on the  alienations project is finished, then my friends can  conduct their cross-examination, and if they can find  some opportune moment to make whatever particular 19426  Proceedings  1 submission they have to make about that particular  2 cross-examination, then we are happy to see if  3 arrangements to that effect can be made.  That doesn't  4 have to be made by Friday.  5 MS. RUSSELL: My Lord, we will accommodate as best we can.  We  6 would like to have it done and out of the way.  7 THE COURT:  I am disposed to suggest, Ms. Russell, that we clear  8 these other matters away, and if necessary we have the  9 business record argument at 4 o'clock some afternoon  10 next week.  11 MS. RUSSELL: That's fine.  12 THE COURT:  Well, its been wisely said that there is worse  13 things that can be done than judges sitting in their  14 Chambers twiddling their thumbs, and if that has to be  15 the situation, and if we are not falling off schedule,  16 then that's the way we will proceed.  Mr. Goldie's  17 historical argument or tendering of documents will  18 proceed Thursday, and the plaintiffs will have Friday  19 for --  20 MS. RUSSELL: If I might also ask if we could have a date from  21 the plaintiffs, a date for the Morrell argument, if  22 it's going to take place.  2 3 THE COURT:  Yes.  24 MR. PLANT:  And I am not sure whether -- I am still confused  25 about this so-called business records' argument as  26 distinct from this.  Your Lordship's contemplation is  27 that we will be dealing with the admissibility of the  28 alienations project materials some time Friday as part  29 of the matters then?  30 THE COURT:  Yes.  Well, you will have your share of — your  31 opportunity to see if you can clean up the alienations  32 project as well, if it's still outstanding at that  33 time.  It will be, of course.  34 MR. PLANT  35 THE COURT  3 6 MR. PLANT  It will be as matters stand, yes.  All right.  Thank you.  There being no other business, My Lord, my next  37 witness will be Mr. Derek Thompson.  He will speak to  38 two maps in the series.  The maps have numbers within  39 the series of maps 8 and 26.  Map 8 is the Parks' map.  40 Map 26 is a map of one ecological reserve.  Mr.  41 Thompson's affidavit is Tab no. 5 in the black binder  42 of alienations affidavits.  That reminds me, My Lord.  43 I have an updated index -- an updated index for Your  44 Lordship's copy and one for my friends.  And I'll put  45 that in.  46 THE COURT:  Well, the affidavit can be Exhibit 1129, and I'll  47 just substitute it for the index. 19427  D. Thompson (for Province)  In chief by Mr. Plant  1 MR. PLANT:  I'll provide Your Lordship with an updated index --  2 a further updated index tomorrow morning.  And I can  3 provide the Registrar with the original of the  4 affidavit.  5 THE REGISTRAR:  Exhibit 1129.  6  7 (EXHIBIT NO. 1129 - AFFIDAVIT OF DEREK  8 THOMPSON)  9  10 MR. PLANT:  And I would call Mr. Thompson to the stand please.  11 Perhaps I could ask whether trial Exhibits 45B and 55B  12 for Identification, are they before Your Lordship?  13 Your Lordship already has them.  They are the  14 supporting documents for maps 8 and 26.  Map 8, the  15 Parks' map itself is trial Exhibit 45A.  The  16 ecological reserve map is trial Exhibit 55A for  17 Identification.  18  19 DEREK THOMPSON, a witness called on  20 behalf of the defendants, having been  21 duly sworn, testifies as follows:  22  23 THE REGISTRAR:  Would you state your full name for us, sir.  24 THE WITNESS:   Derek Thompson.  25 THE REGISTRAR:  Please be seated.  26  27 EXAMINATION IN CHIEF BY MR. PLANT:  28  29 Q   Are you the director of the Planning and Conservation  30 Branch of the Ministry of Parks?  31 A   That's correct.  32 Q   And if I could ask you to look at Exhibit 1129 for a  33 moment, which -- I'll just give you the photocopy  34 here.  35 A   Okay.  36 Q   If you could turn to page 4.  Is that a photocopy of  37 your signature there above your name?  38 A   That's correct.  39 Q   Are the statements in this affidavit true?  40 A   To the best of my knowledge, yes, they are true.  41 Q   Mr. Thompson, I understand that you have worked for  42 what is now the Ministry of Parks since 1973?  43 A   That's correct.  44 Q   Could you briefly describe your duties as director of  45 the Planning and Conservation Services Branch, with  46 particular reference to the record-keeping aspect of  47 that branch's work. 1942?  D. Thompson (for Province)  Cross-exam by Mr. Guenther  1 A   I am responsible for the creation of all new  2 provincial parks and all new ecological reserves, for  3 the proposal of those.  I am responsible for the  4 management planning for all of the parks in the  5 system.  And as part of that duty I and my staff are  6 responsible to keep in headquarters in Victoria the  7 records on the land holdings and the tenures in the  8 park system and the ecological reserve system as well.  9 Q   I understand that prior to April of this year you held  10 the post of manager of the Planning and -- manager of  11 Planning and Ecological Reserves?  12 A   That's correct.  13 Q   Could you briefly describe what is a ecological  14 reserve?  15 A  An ecological reserve is an area that's been set aside  16 for its scientific value as a benchmark, a gene pool  17 for the future, and to provide opportunities for  18 scientific research.  19 Q   Just to put the evidence that is depicted on maps 8  20 and 26 in some context.  How many ecological reserves  21 are there now in British Columbia?  22 A   There are 123 as of this week.  23 Q   And how many parks are there?  24 A   There are 385.  25 Q   Thank you very much, Mr. Thompson.  I have no other  26 questions for you.  27  28    CROSS-EXAMINATION BY BY MR. GUENTHER:  29  30 Q   Sir, you're familiar with the process whereby an  31 ecological reserve in particular is established?  32 A   Yes, I believe so, yes.  33 Q   And included in the materials in the supporting  34 documentation, Exhibit 55B, are documents that relate  35 to an ecological reserve at Morice River.  That's the  36 one that is established and existing within the land  37 claim territory; is that correct?  38 A   That's correct.  39 Q   And there are also documents with respect to another  40 seven; is that correct?  41 A   You are referring to --  42 Q   Yes, the page and contents --  43 A   On the contents page, yes, that's correct.  44 Q   All right.  Now, with respect to those -- the one that  45 is established, the ecological reserve established  46 that exists within the land claim area, I take it that  47 that was proposed in 1974.  And I am referring here to 19429  D. Thompson (for Province)  Cross-exam by Mr. Guenther  1 Tab 1 after Tab B of that volume.  2 A   Okay.  3 Q   Second page.  4 A   It's the page which -- the page which has "1" in the  5 right-hand corner, report 204.  6 Q   Page 3 in the middle of the page?  7 A   Yes.  8 Q   And the next page is page 4, which I take it was the  9 information that amounted to an application to set  10 this aside as an ecological reserve; is that correct?  11 A   It's not correct to say that it's an application.  It  12 is the material that was used in the programmes  13 assessed there, the International Biological  14 Programme.  15 Q   All right.  Who in fact suggested that this reserve be  16 established?  17 A   I am sorry, I don't have that information.  18 Q   All right.  The International Biological Programme  19 that's documented throughout, what is that programme?  20 A   The International Biological Programme is a programme  21 of which Canada is a joint signatory, which in 1971  22 undertook inventories throughout Canada and throughout  23 British Columbia.  24 Q   For what purpose?  25 A   To identify sites of ecological value.  26 Q   Would you look at page 1 at Tab 1, page 3 numbered in  27 the middle top of the page.  That's signed by Mr.  28 Krajina, who appears to be involved in all of these  29 proposed reserves.  And that document is headed  30 application, correct?  31 A   Yes.  32 Q   And is Mr. Krajina holding a position with the  33 International Biological Programme?  34 A   I wouldn't say that he holds a position.  35 Q   Can you explain --  36 A   I understand to hold a position.  37 Q   Can you explain what his role in this was?  38 A   Yes.  Dr. Krajina is an internationally renowned  39 biologist who was a professor at U.B.C, and who was  40 instrumental in the public proposal to have the  41 province become involved in the International  42 Biological Programme.  43 Q   All right.  It appears to me, and correct me if I'm  44 wrong, that he was involved in the fieldwork, if I can  45 put it that way, with respect to both the one  46 established ecological reserve and the seven proposed  47 that are documented here; is that correct? 19430  D. Thompson (for Province)  Cross-exam by Mr. Guenther  1 A   I believe so.  2 Q   And it appears that his fieldwork occurred mostly in  3 1973 and 1974, correct?  If you look at the second  4 page of each tab, there is a date that a check sheet  5 was completed in any event.  6 A   Yes, I would say -- I don't know when his fieldwork  7 was, but when he filled out the form was in '74  8 certainly.  9 Q   That certainly would be when he reported in a way?  10 A   Yes.  11 Q   And the ecological reserve at Morice River which was  12 established, was so established in 1977; is that  13 correct?  14 A   I believe so.  Forgive me if I am not instantly --  15 Q   Sorry, look at Tab 9 of that book.  There is an  16 Order-in-Council.  17 A   Yes, 1977.  18 Q   All right.  And no action has been taken by the  19 government with respect to designation of the other  20 seven sites listed; is that correct?  21 A   That's correct.  22 Q   And the map and the documentation produced tell us  23 nothing -- provide no information as to what  24 activities may or may not have occurred in that  25 designated ecological reserve since designation; is  26 that correct?  27 A   The map you referred to --  28 Q   Yes.  29 A   That's correct.  30 Q   The Exhibit 55A.  You were involved in your position  31 in the creation -- in the creation process with  32 respect to Provincial Parks; is that correct?  33 A   That's correct.  34 Q   How does that process work, in general?  35 A   In general.  Well, in general -- have to summarize it  36 tersely and not be bureaucratic.  The areas of the  37 Province that have Provincial Parks value will be  38 surveyed by a staff, by members of the public, as we  39 have seen with ecological reserves.  40 Q   I don't want to stop you, but just to take you back a  41 step, I think.  How are areas indicated that might be  42 potential?  Before --  43 A   Okay.  As we do it now, we recognize that the province  44 has -- is made up of some 57, what we call natural  45 landscapes, which are breakdowns of the geologic, the  46 biologic, the climatic variety of British Columbia,  47 and the government has identified that there would be 19431  D. Thompson (for Province)  Cross-exam by Mr. Guenther  1 parks in each of these landscapes.  I have also  2 identified that there are natural features of  3 provincial conservation and recreation value, which of  4 themselves are of such significance that we should be  5 protecting places like the Adams River fish run,  6 Helmeken Falls.  We also identified that there are  7 recreational roles that the province follows, in terms  8 of providing travel corridor opportunities,  9 destination recreation opportunities and regional  10 recreation opportunities to serve specific markets.  11 So we are looking in those what we call five goal  12 areas for parks and province.  13 And our staff, from their experience from previous  14 history from so many sources, know of many of the  15 areas that have significance for these areas.  So they  16 would complete studies of the area, following  17 direction derived from myself and the Assistant Deputy  18 Minister, and prepare for the Minister to take to the  19 cabinet committee the boundary proposals and an  20 Order-in-Council for passage to create the park.  21 Q   What involvement does the Ministry then have in parks  22 that are established?  Let me go back one question.  23 Parks are designated as such as in different class; is  24 that correct?  25 A   That's correct.  26 Q   They are not -- these are not strictly speaking  27 alienations of the property, they are simply  28 designations which then provide your Ministry with  29 authority to regulate those areas; is that fair to  30 say?  31 A   Yes.  32 Q   All right.  Once designated, I take it that your  33 Ministry will not have a great deal of on the ground  34 involvement in some areas of these parks; is that fair  35 to say?  36 A   Yes —  37 Q   If we look, for instance, at Tweedsmuir Park, that's a  38 fairly rugged area in place in which there will not be  39 much activity on the part of either anyone from your  40 Ministry or generally members of the public; is that  41 correct?  42 A   I believe that's correct.  43 Q   And if you refer to some of the areas as shown on the  44 map, Exhibit 45A.  You're familiar with that map, I  45 take it?  46 A   Yes, this is 45A here.  47 Q   And referring you to the document book, map 8.  Do you 19432  D. Thompson (for Province)  Cross-exam by Mr. Guenther  1 have that in front of you?  Sorry, I have taken you to  2 another one.  Exhibit 45B.  I will refer you to Tab B,  3 which contains page 3.  That's a listing of eight park  4 areas for which there are supporting documents  5 included, and as well in addition to those eight there  6 is a mapping of the Spatsizi Plateau Park included in  7 these documents.  Let me just ask you about a number  8 of those.  The Spatsizi map, I believe, is at Tab D at  9 the end of that book.  10 A  All right.  11 Q   The Spatsizi Plateau Park in fact falls almost  12 entirely outside of the land claim area; is that  13 correct?  14 A   That's correct.  15 Q   And in fact of the other parts listed, two of the  16 largest ones -- well, the two largest -- in fact for  17 the most part fall outside of the land claim area.  I  18 am referring to Tatlatui and Tweedsmuir.  19 A   For the most part those park areas lie outside of the  20 land claim area.  21 Q   And with respect to the Babine Mountain recreation  22 area in particular, can you describe the area, the  23 terrain of that particular recreation area?  24 A  Well, yes, it's situated close to Smithers, and when  25 you are in Smithers and you are looking north, on the  26 left-hand side you see Hudson Bay Mountain, which  27 rises as a severe peak.  On the right on the other  28 hand is the Babine.  And the Babines are largely --  29 the boundary composes largely the higher elevation  30 land in there, and got some broad open alpine meadow  31 areas, steep precipitous cliffs.  Quite a dangerous  32 area, for example, snowmobiling, numerous accidents in  33 there over the years.  The area generally represents  34 that mountain system in the park system.  35 Q   Were you involved in the process whereby  36 recommendation was made that -- to have that area  37 designated a recreation area?  38 A   No, I wasn't personally.  39 Q   Are you familiar with the reasons why your Ministry  40 recommended that that area be so designated?  41 A   Yes.  42 Q   What are those reasons?  43 A   In the late 1970's local groups wanted to see better  44 management of motorized all-terrain vehicle use in the  45 area, and a series of government studies by various  46 ministries concluded, with a recommendation to  47 cabinet, that one of the best ways to undertake 19433  D. Thompson (for Province)  Cross-exam by Mr. Guenther  1 management of the area would be to designate it as a  2 recreation area, to recognize that all-terrain vehicle  3 use, and also to recognize the pre-existence of  4 mineral claims in the area.  5 Q   And that recreation area of some -- in excess of  6 32,000 hectares was established in 1984; is that  7 correct?  8 A   That's —  9 Q   I am referring now to Tab 4.  10 A   Correct.  April the 5th, 1984.  11 Q   Does your Ministry maintain records of any historic  12 Indian sites in any of the parks?  13 A   Do you mean do we maintain records of archaeologic  14 sites?  15 Q   That's one aspect in particular.  If you can answer  16 that.  17 A  Where the -- our other Ministry of Municipal Affairs  18 Heritage and Culture have completed inventories and  19 have identified areas, we will have a copy of those in  20 our files, yes.  21 Q   Are there any such sites in the land claim area?  Do  22 you know?  23 A   Off the top of my head I am sure that there must be,  24 but I know specifically of none.  25 Q   The Ministry of Parks undertakes to, in some of the  26 parks and recreation areas, undertakes to inform the  27 public users of those parks of some of the history of  28 the area, I take it?  29 A   That's correct.  30 Q   Does it -- to your knowledge does any of that involve  31 advice as to any Indian involvement historically in  32 the areas?  33 A   In these particular parks?  34 Q   In any particular parks in the province.  35 A   Oh, certainly in many parks.  36 Q   Can you describe some of that?  37 A  Well —  38 Q   That you are aware of.  39 A   It's so extensive.  4 0 Q   By way of example.  41 A  As an example.  You really are testing me.  Shuswap  42 Lake Park in the interior we have an exhibit that  43 talks about the early occupancy of the lake, Kulee Pit  44 House.  Now you are going to test me how to spell it.  45 K-U-L, I think, E-E.  But I may be wrong.  Anyway, a  46 pit house and exhibit similar to the one that's in the  47 Provincial Museum. 19434  D. Thompson (for Province)  Cross-exam by Mr. Guenther  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  MS.  MR.  THE  THE  MR.  Q   Is there any similar projects or examples within the  land claim territory that you are aware of?  A   Not that I am absolutely sure of, no.  Q   You have worked for the Parks and predecessors since  1973, I think you indicated?  A   Yes.  Q   And prior to that?  A   I was at university.  Q   Since 1973 when -- since you have been involved in the  Ministry and predecessors, have you been aware of any  particular areas, and I particularly refer you to the  land claim area here, that have been reserved or set  aside in any way in respect of potential land claim  settlements or negotiations?  A   None that I am aware of, no.  Q   You have -- do you have any knowledge of something  called the Kitwancool territorial reserve?  A   No.  Q   You have never heard of that?  A   I don't believe so.  Q   Just a quick question remaining.  Mr. Moffatt on your  understanding prepared the map that led to the  preparation of the exhibit tendered here, 45A?  A   That's correct.  Q   And were you involved in instructing Mr. Moffatt?  A   No, Mr. Moffatt was not working for me at that time.  Q   Were you involved at that time in the direction that  led to the production of the map and the collection of  the materials?  A   No.  Q   Are you aware of who it was in the Ministry who  directed the preparation of the map -- directed and  supervised preparation of the map and the supporting  documents?  At that time Mr. Moffatt was my, if you like,  predecessor in position, and his supervisor at that  time was Mr. Jake Masselink.  Thank you.  Those are my questions.  Thank you.  Ms. Russell?  I have no questions.  Thank you, My Lord.  I have no re-examination, My Lord.  Thank you, Mr. Thompson.  You are excused, if you  wish.  WITNESS:  Thank you, My Lord.  PLANT: On the basis of Mr. Thompson's evidence, I would,  but for my friend's blanket objection, be tendering  what is now exhibits -- what are now Exhibits 45A for  A  PLANT:  COURT:  RUSSELL:  PLANT:  COURT: 19435  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. PLANT  D.R. Halladay (for Province)  In chief by Mr. Plant  Identification, 45B for Identification, 55A and 55B  for Identification as exhibits proper.  All right.  Thank you.  The next witness will be Raymond Halladay, My Lord,  H-A-L-L-A-D-A-Y.  His affidavit appears at Tab 6 of  the black binder of affidavits.  Perhaps I could give  Madam Registrar the original of that affidavit, which  would become Exhibit 1130.  THE REGISTRAR:  Yes.  THE COURT:  Yes.  (EXHIBIT NO. 1130 - AFFIDAVIT OF MR. HALLADAY)  MR. PLANT  THE COURT  MR. PLANT  And Mr. Halladay will be giving evidence with  respect to guide and outfitters' boundaries.  The map  for that is Exhibit 55C for Identification.  Also  called it map 13.  And the source documentation is  Exhibit 55D for Identification.  Does Your Lordship  have a copy of the guiding outfitters' source  documentation book?  Yes.  I would call Mr. Halladay to the stand please.  DELBERT RAYMOND HALLADAY, a witness  called on behalf of the Province,  having been duly sworn, testifies as  follows:  THE REGISTRAR:  Would you state your full name please, sir.  THE WITNESS:  My name is Delbert Raymond Halladay.  THE REGISTRAR:  Thank you, sir.  Please be seated.  EXAMINATION IN CHIEF BY MR. PLANT:  Q   Mr. Halladay, are you the Deputy Director of the  Wildlife Branch of the Ministry of Environment of the  government of British Columbia?  A   I am.  Q   Could I ask you to turn to Tab 6 of the black binder  of documents, the affidavit, and you see there your  name on the first page.  And if you could turn,  please, to page 3.  Recognizing that this is a  photocopy, is that your signature above your name in  the lower right-hand corner?  A   It is.  Q   And are the statements in this affidavit true, Mr.  Halladay? 19436  D.R. Halladay (for Province)  Cross-exam by Mr. Guenther  1  A  2  Q  3  4  5  A  6  Q  7  8  A  9  Q  10  11  12  13  14  15  16  THE  COURT  17  MR.  PLANT  18  19  20  21  THE  COURT  22  MR.  PLANT  23  Q  24  25  26  27  A  28  Q  29  30  31  THE  COURT  32  MR.  guent:  33  34  CROSS-EXA  35  36  Q  37  38  39  A  40  41  42  43  44  Q  45  46  47  A  They are.  I understand, sir, that you have been employed by the  Wildlife Branch since 1970, and as Deputy Director  since 1984?  That is correct.  I understand that before that you worked for some time  for the Canadian Wildlife Service?  I did.  I do have one or two specific questions about your  affidavit.  And in particular I could ask Your  Lordship to read paragraph three.  I'll read it for  the record.  "I have been informed by Mr.  ..."  :  You don't need to read it in, Mr. Plant.  :  Thank you.  It's really the last sentence where Mr.  Halladay deposes that Mr. Bone reported to him at that  time that his duties included the preparation of guide  outfitter territory maps.  :  Yes.  In addition to preparing such maps, Mr. Halladay, did  Mr. Bone also have duties in relation to preparing  metes and bounds descriptions of guide outfitter  territories?  He did.  Well, I may have overestimated the number of questions  I have to ask you.  Those are all the questions I  have.  :  Thank you.  Mr. Guenther.  IER:  Thank you, My Lord.  Generally, Mr. Halladay, for what periods of time are  guide outfitters' licences and certificates issued  for?  A guide outfitter's licence is an annual licence.  Guide outfitter certificates have varied as to the  term of them, depending on the statute provisions.  We  have recently enacted a new provision allowing for a  ten year term.  All right.  You're familiar, I take it, with the guide  outfitter territories delineated on that -- on the map  referred to, map 13?  I am. 19437  D.R. Halladay (for Province)  Cross-exam by Mr. Guenther  1 Q   What's the general term issued with respect to those  2 certificates?  It's a range.  Maybe if you could just  3 indicate the range.  4 A   It does vary, and I'm not certain of the term in that  5 case.  6 Q   All right.  7 A   If you are referring to the period of 1984, which I  8 believe is the date, October of '84.  9 Q   I am just referring to a number of the guide outfitter  10 certificates which are contained at the numbered tabs  11 in the document book entitled map 13.  I wonder  12 whether my friend's assistance --  13 MR. PLANT:  And what in particular?  14 MR. GUENTHER:  Well, in particular to Tab 1 of that document  15 book is the guide outfitter's certificate issued to  16 Mr. Blackwell, and that Mr. Halladay apparently issued  17 in 1975.  Is that correct?  18 MR. PLANT:  I see.  19 MR. GUENTHER:  20 Q   On the indenture -- this indenture --  21 A   Uh-huh.  22 Q   And it was for a period ending March 31, 1987.  Is  23 that correct?  And the number I am referring to, three  24 paragraphs down, prior to the general conditions and  25 application.  26 A   Yes.  27 Q   That would be a 12 year term?  28 A   Yes.  29 Q   And is that -- and the next one at Tab 2.  Apparently  30 the date of issue is 1980 for a term ending March 31,  31 1987; is that correct?  32 A   That is correct.  33 Q   Is that -- that would be a term of about seven years?  34 Is that a common range, seven to twelve years for the  35 issue of guide outfitter certificates?  36 A   I believe the statute position at the time was about  37 eleven years, but yes, that's typical of some of the  3 8 terms.  39 Q   And are you familiar with the prior history of these  40 particular guide outfitter boundaries?  41 A   In general terms.  42 Q   Can you advise the Court, please, in general how these  43 particular guide outfitter areas were developed?  44 A   I can't in this particular case tell you how these  45 were developed, but in general terms I can make  46 reference to how they are developed province-wide.  47 Q   Could you do that please. 1943?  D.R. Halladay (for Province)  Cross-exam by Mr. Guenther  1 A   There's been an evolution in the development of guide  2 areas in this province, and beginning with some use as  3 guiding areas in the -- I believe it was in the 1920's  4 was the first recorded formalized guiding activity,  5 and up through and including the fifties and sixties  6 these areas were more progressively formalized, so  7 that there in fact were clear boundaries depicting  8 them more and more as the country was taken up with  9 guiding activity.  In some earlier times individual  10 guides had very large areas.  As time went on  11 additional guides were given authority to guide in an  12 area.  They had imperfect boundaries between their  13 individual areas.  Still other guides were added to  14 the scene, or as those individual guides wished it,  15 formality was added to the boundaries, and they  16 were -- generally they were mapped, and the map was  17 prepared as part of the file on the guide area.  18 Q   I take it you referred to the 1920's as being the  19 first activities of the Province in actively  20 regulating or commencing to regulate the guide  21 outfitting business?  22 A  My recall is that it was about that time that they  23 began to regulate.  2 4 Q   And —  25 A   It may have pre-dated that by some time, but I am not  26 certain of the time.  27 Q   And I take it, from your evidence, that that  28 regulation became more formal generally through the  29 decades following, particularly into the 1950's and  30 sixties; is that correct?  31 A   That is correct.  32 Q   I take it the real intensification of that occurring  33 in the fifties and sixties?  34 A   Yes.  35 Q   And that process then led to the current boundaries  36 and the current regulatory regime; is that fair to  37 say?  38 A   In general, yes.  39 Q   How is it determined who will be issued a guide  40 outfitter's certificate?  41 A   There is an application by an individual.  The  42 individual has to qualify as a guide outfitter.  Part  43 of that qualification is his period of time as an  44 assistant guide, which is two years.  In addition to  45 that we require that he take an examination to show  46 his proficiency in being aware of the regulations that  47 relate to the guiding activity, including those 19439  D.R. Halladay (for Province)  Cross-exam by Mr. Guenther  1 relating to hunting.  And if he has obtained a pass  2 mark in the examination, he can be granted a licence.  3 Q   What —  4 A   If he applies for a certificate, he can then as well,  5 once licenced, be granted a certificate.  6 Q   What's determined as to whom a certificate is issued  7 in a particular area?  8 A   The licensed guide outfitter is the one who can apply  9 for a certificate, and the only one.  10 Q   And what determines who will be licensed in a  11 particular area then?  12 A  Again the person who has applied, if it's a new area,  13 and that is it's not a transfer of an area from a  14 previous guide -- my comments previously were largely  15 relating to a transfer situation -- but if it's a new  16 area, we now tender the certificate or the guide area  17 for auction, and then the successful bidder, if he is  18 qualified to be a guide outfitter under the provisions  19 of the Wildlife Act, he can be granted the licence,  20 and then he can apply for the area to be certificated  21 to him.  22 Q   And once a guide outfitter holds a certificate for a  23 particular area, then even if there is a termination  24 date, as there is on the guide outfitter's  25 certificates, your Ministry used that person as being  26 the person who would be re-licensed if application is  27 made by that person upon termination of their current  28 guide outfitter's certificate; is that correct?  29 A   If he was regarded as having adequately complied with  30 the provisions of his licence and certificate, yes.  31 Q   If regarded as having not grossly breached any  32 conditions, such as to disqualify?  33 A   That is correct.  34 Q   And the regime of regulation by your Ministry of these  35 people is conducted in what manner?  How do you  36 determine what a particular guide outfitter is doing  37 in a particular area?  38 A  A guide outfitter is required by law to pay a royalty  39 on the game animals that he has harvested under his  40 licence, or that his clients have harvested.  41 Q   So what you're saying is that the monitoring of the  42 activities of the guide outfitters by your Ministry is  43 conducted by review of the reports that those guide  44 outfitters are required by statute to submit to the  45 Ministry; is that correct?  46 A   In general, yes.  47 Q   And the regime of regulation of the guide outfitters 19440  D.R. Halladay (for Province)  Cross-exam by Mr. Guenther  1 certainly is not intended to cover any activity other  2 than guiding for hire; is that correct?  3 A   That's correct, basically, yes.  4 Q   I take it, going back to a reference that you made  5 about the issuance of guide outfitters' certificates  6 and licences, that the boundaries of some of the areas  7 will change from time to time?  8 A   Yes.  9 Q   But I take it -- well, tell us, if you can, are there  10 what you would refer to as new areas within the land  11 claims territory?  12 A   I am not certain that there are new areas or  13 unallocated areas.  I believe that's what you are  14 referring to.  There may be.  15 Q   Does there -- is there any -- in your experience is  16 there competition of any sort for the issuance of a  17 guide outfitter certificate for an area not a new  18 area?  19 A   If there is, it would mean qualified persons coming to  20 the existing guide and indicating to that existing  21 licensed guide that they both had more than two, if  22 there were more than two, had an interest in that  23 area, would be interested in buying his business  24 assets and seeking permission from the Crown to have  25 the area transferred to them.  2 6 Q   All right.  27 A   That might be competition.  28 Q   All right.  What I am getting at, and I take it you  29 would agree then, that once a guide outfitter is  30 licensed and a certificate issued for a particular  31 area with boundaries, then that person, subject to not  32 being re-issued a certificate because of breaches, is  33 the -- is considered to be the owner of that guide  34 outfitter -- and I use owner in a general sense, as  35 entitled to renewal?  36 A   He has the privilege to guide in the area.  We regard  37 him as having the opportunity to renew.  38 Q   And the boundaries, once fixed, will not be altered,  39 unless with the consent or through consultation with  40 the guide outfitter's territory involved; is that  41 correct?  42 A  We try to achieve any boundary shifts through  43 consultation.  There is provision, however, for the  44 regional manager to change a boundary, if he finds  45 necessary to do so, with or without the permission of  46 the licensee.  47 Q   Under what circumstances? 19441  D.R. Halladay (for Province)  Cross-exam by Mr. Guenther  1 A   It would probably be a very significant need  2 associated with the conservation of the resource.  It  3 perhaps could as well be the imposition of another  4 tenure on the land, such as a mine development area or  5 such, but even that is quite rare.  It has to be quite  6 an exceptional circumstance for such an amendment.  7 Q   And do you know when the particular guide outfitter  8 territory boundaries shown on the map here were in  9 fact developed?  10 A   I can say that the -- as indicated in the affidavit,  11 and as indicated by Mr. Bone, that the boundaries are  12 accurate as of that date shown.  13 Q   Yes.  14 A   But as to when those boundaries may have been set  15 originally, I cannot confirm.  I don't know.  That  16 would require a search of the records on my part.  17 MR. GUENTHER:  Sorry, My Lord.  If I might just have a moment.  18 Okay.  Those are my questions, My Lord.  19 THE COURT:  Ms. Russell?  20 MS. RUSSELL: I have no questions, My Lord.  21 MR. PLANT  22 THE COURT  2 3 MR. PLANT  2 4 THE COURT  2 5 MR. PLANT  I have no re-examination, My Lord.  All right.  Thank you.  Thank you, Mr. Halladay.  Thank you, Mr. Halladay.  What are you tendering?  My Lord, but for my friend's blanket objection at  26 this juncture, I would tender Exhibit 55C, which has  27 in part been marked for limited purposes during the  28 evidence of Igor Steciw.  And I won't attempt to spell  29 his last name.  I would tender it as an exhibit for  30 all purposes.  And likewise I would tender the source  31 documentation, Exhibit 55D, which is presently an  32 exhibit for identification, as an exhibit for all  33 purposes.  34 THE COURT:  All right.  Thank you.  You have one more witness,  35 Mr. Plant?  3 6    MR. PLANT:  I do, My Lord.  37    THE COURT:  Would it be more convenient to adjourn now?  3 8    MR. PLANT:  Yes, My Lord.  39    THE COURT:  All right.  We will take the morning adjournment  4 0 now.  41 THE REGISTRAR:  Order in court.  Court stands adjourned for a  42 short recess.  43  44 (PROCEEDINGS ADJOURNED FOR A BRIEF RECESS)  45  46  47 19442  Proceedings  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  I HEREBY CERTIFY THE FOREGOING TO BE  A TRUE AND ACCURATE TRANSCRIPT OF THE  PROCEEDINGS HEREIN TO THE BEST OF MY  SKILL AND ABILITY.  LORI OXLEY  OFFICIAL REPORTER  UNITED REPORTING SERVICE LTD. 19443  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  Proceedings  P.J. Downs (for Province)  In chief by Mr. Plant  (PROCEEDINGS RECONVENED AT 11:30 A.M.)  THE REGISTRAR  THE COURT  MR. PLANT  THE COURT  Order in court.  Mr. Plant.  My lord, my next witness will be Mr. Peter Downs.  Before I call him, I have, in relation to his  evidence, the map.  Mr. Downs will be speaking to the  question of forest service roads and sites, and if  your lordship turns to tab 7 of the black binder of  alienations affidavits, the bottom of the first page  under the reference -- or associated with that is the  Exhibit No. 55-E for identification for the map.  My  lord, that number was reserved but the exhibit  itself -- or the map itself has not been marked until  now, and I would ask that it be marked as Exhibit 55-E  for identification.  All right.  (EXHIBIT 55-E FOR IDENTIFICATION  Service Roads and Sites)  Map of Forest  MR.  PLANT:  And with respect to the source documentation of  which there is one volume, I've got the volume here,  it's also unmarked and it should be Exhibit 55-F for  identification.  THE COURT:  All right.  THE REGISTRAR:  That's E and F for identification.  (EXHIBIT 55-F FOR IDENTIFICATION - Source Material)  MR. PLANT:  I also have Mr. Downs' affidavit which I ask to be  marked.  THE COURT:  Yes, all right.  That will be Exhibit 1131.  THE REGISTRAR:  Yes, my lord.  (EXHIBIT 1131 - Affidavit of Mr. Downs dd. July 28,  1989)  MR. PLANT:  I now ask Mr. Downs to come to the stand, please.  PETER HAMILTON DOWNS, a witness  called on behalf of the Province,  having first been duly sworn,  testifies as follows:  THE REGISTRAR:  Would you state your full name, please?  THE WITNESS:  Peter Hamilton Downs. 19444  P.H. Downs (for Province)  In chief by Mr. Plant  1    THE REGISTRAR:  Thank you, sir.  Please be seated.  2  3 EXAMINATION IN CHIEF BY MR. PLANT:  4 Q   Mr. Downs, are you the manager of the Property  5 Services Section of the Timber Harvesting Branch of  6 the Ministry of Forests?  7 A   I am.  8 Q   Could I ask you, please, sir, to turn to the document  9 at tab 7 in the binder in front of you.  That purports  10 to be a photocopy of your affidavit.  Could you turn  11 to page 3 of that document and confirm for me that  12 that's a photocopy of your signature above your name?  13 A   Yes, that is.  14 Q   And are the statements in this affidavit true?  15 A   To the best of my knowledge, yes.  16 Q   Mr. Downs, I have one or two questions for you.  17 I understand that, under various titles, you've  18 held what is in substance your present position since  19 about 1975?  20 A   That is correct.  21 Q   And I understand that as far as -- well, I'll put it  22 this way:  Directing your attention to the map of  23 forest service roads and sites and the supporting  24 documentation.  Was this material prepared by you  25 personally or by people working under your  26 supervision?  27 A   By people working under my supervision.  28 Q   Can you just briefly indicate for his lordship what a  29 forest service road is?  30 A  Well, a forest service road is defined under the  31 definitions in the Forest Act, but it could be said to  32 be a road built on Crown land with appropriations from  33 the Ministry's funds.  34 Q   By "Ministry" you mean the Ministry of Forests?  35 A  Ministry of Forests, sorry, yes.  36 Q   And approximately how many such roads are there in  37 British Columbia?  38 A   2500 or something.  39 Q   Could you -- well, perhaps I could just pause for a  40 moment and ask your lordship to refer to the booklet  41 which is now Exhibit 55-F for identification.  And  42 page 5 and page 6, Mr. Downs, if I could just ask you  43 to confirm that this is a list of the forest service  44 roads within the land claim area that are depicted on  4 5 the map?  46 A   That is correct.  47 Q   And if I could turn your attention to page 7 and then 19445  P.H. Downs (for Province)  In chief by Mr. Plant  Cross-exam by Mr. Guenther  page 8.  What is listed here?  Those are the list of forest service sites.  What, generally speaking, is a forest service site?  Well, forest service sites are acquired for the  Ministry's -- for purposes consistent with the Forest  Act.  Should I elaborate on that?  Well, if you could give some examples of the kinds of  things that --  Well, we would look at sites for protection to observe  when fires start, and repeater sites for communication  establishments, patrol cabins -- although they are not  needed very often now -- administration sites, seed  orchards, nurseries, marine bases, suppression camps.  That's fine, thank you.  Air tanker bases.  On pages seven and eight where there is a capital L  and a stroke and then a capital 0 --  That means lookout abbreviation.  Approximately how many of these such sites are there  in British Columbia?  Approximately a thousand throughout the province.  Now, if you carry on in the book, following tab C-l  and thereafter to the end of the book, I understand  these are samples of files taken from your Ministry's  files?  That is correct.  Does the Ministry keep similar files for all forest  service roads and sites?  Yes, it does.  :  Those are all my questions of you, Mr. Downs.  :  Thank you.  Mr. Guenther.  EXAMINATION BY MR. GUENTHER:  Thank you, my lord.  Sir, the information shown on the map is as of May  the 6th, 1987; is that correct?  That is correct.  And was the status of these roads and sites different  in 1987 than in October 1984?  Was there any change in  status of any of these roads and sites?  Well, there may have been some roads added from 1984  to 1987.  I am not too sure.  We may have acquired  sites in the period of '84 to '87, but I am not sure  which ones.  The documents reproduced after tab C of that book that  my friend referred you to, relate to -- correct me if  I'm wrong, but my reading of them is that they relate  1  2  A  3  Q  4  A  5  6  7  Q  8  9  A  10  11  12  13  14  Q  15  A  16  Q  17  18  A  19  Q  20  21  A  22  Q  23  24  25  26  A  27  Q  28  29  A  30  MR. PLANT  31  THE COURT  32  33  CROSS-EXA  34  Q  35  36  37  A  38  Q  39  40  41  A  42  43  44  45  Q  46  47 19446  P.H. Downs (for Province)  Cross-exam by Mr. Guenther  1 to one of the forest service roads, being the Binta  2 Lake forest service road, being one of the 34 listed  3 in the list of roads; is that correct?  4 A   That is right.  5 Q   And that is at tabs 1, 2, 3 and 4; is that correct?  6 A   That is correct.  7 Q   All those relate to that one forest service road?  8 A   Right.  9 Q   And at tab 5 are documents that relate to only one of  10 the forest service sites being the -- I take it the  11 Telkwa administration site?  12 A   That is right.  13 Q   The Telkwa administration site, I take it to be a  14 permanent administration office; is that correct?  15 A   It was.  I think it has now been sold off in the time  16 period.  17 Q   In which time period?  18 A   Probably since '87 to '89.  19 Q   With respect to the forest service roads that are  20 mapped as lying within the land claim area, are you  21 familiar with any of the history of those roadways?  22 A   Not really, no.  23 Q   All right.  Are you knowledgeable at all about whether  24 those particular forest service roads were constructed  25 over old roadways or old trails at all?  26 A   Not really, no.  27 Q   Are you familiar with whether it is -- not the  28 policy -- but the practical and convenient method for  29 constructing such roads to follow a pre-existing trail  30 where one exists?  31 A   That's quite possible, yes.  32 Q   Possible but you don't know, I take it, from your  33 answers?  34 A   That's right.  35 Q   And I take it other than that documentation contained  36 in the booklet with respect to the Binta Lake forest  37 service road, that the materials and the map do not  38 provide any information as to the history of any of  39 the other forest service roads listed and mapped; is  40 that correct?  41 A   That is correct.  42 Q   And can you tell us whether the forest service roads  43 that are mapped are mappings of actual roadways or  44 whether the mappings may include rights-of-way held by  45 the Ministry but over which an actual roadway has not  46 been constructed?  47 A   To the best of my knowledge all those roads have been 19447  P.H. Downs (for Province)  Cross-exam by Mr. Guenther  1 constructed.  2 Q   Do you know that to be so?  3 A   Not absolutely positive, no.  4 Q   Have you compared the mapping to the Ministry  5 documents at all yourself?  6 A   I am not quite sure what --  7 Q   Have you compared the mapping of the roads, that is  8 the map now marked as Exhibit 55-E, I believe, which  9 is that large map?  10 A   Yeah.  I did not compare each project road with each  11 file myself, no, I did not.  12 Q   Did you compare any of those roads mapped with any  13 project files?  14 A   I just looked over the Binta.  15 Q   Just the Binta file?  16 A   Right.  17 Q   Which is the one produced in these documents?  18 A   Right.  19 Q   With respect to the forest service sites that are  20 marked, you've indicated that there are a number of  21 different types; one being lookouts.  The lookouts are  22 manned for part of the year only; is that correct?  23 A   That is my understanding.  24 Q   And generally manned by one person?  25 A  Again, that is my understanding that it is one person.  26 Q   Yes.  And the period of the year that that would be  27 manned would be which months?  28 A   During the fire season.  I think it starts May the  29 15th to October the 15th.  30 Q   All right.  The repeater stations that you referred to  31 are unmanned; is that correct?  32 A   That is correct.  33 Q   Once constructed they are there?  34 A   They are automatic, I think.  35 Q   They are automatic.  And the only time that any  36 employees of the Ministry would --  37 A   For maintenance.  38 Q   -- go to those areas is for maintenance or for  39 inspection, I take it; is that correct?  40 A   That's right.  41 Q   The patrol cabins that you mentioned, I only see one  42 on the list, that being at Maurice Lake.  But I take  43 it that that's an unmanned cabin that is there for  44 occasional patrols -- for the use of occasional  45 patrols; is that correct?  46 A   That is my understanding.  I think they are very old.  47 Part of the history of the forest service. 19448  P.H. Downs (for Province)  Cross-exam by Mr. Guenther  Re-exam by Mr. Plant  1 Q   And the suppression camp that is listed on page 8  2 under item number 37, is that -- is that an ongoing  3 staffed operation?  4 A   I don't know.  5 Q   What about the Sunset Lake marine base?  6 A  Again, I'm afraid I don't know.  7 Q   And you indicated that the Telkwa administration site,  8 to your knowledge -- or to the best of your  9 information had been sold off.  Is that also true of  10 the Telkwa nursery?  11 A   I'm getting confused here.  The Telkwa Nursery has  12 definitely been sold off, it's been privatized.  The  13 Telkwa administration site might have transferred over  14 to B.C.B.C.  I'm not quite sure what the status of  15 that is.  16 Q   Just going back to the forest service roadways that  17 are mapped, I take it that you cannot tell us the  18 degree of use of those roadways?  19 A   No.  20 Q   I take it from your general information, however,  21 those roadways, again, would be, to the extent that  22 any of them would be used, would be used during the  23 fire season mostly.  Is that fair to say?  24 A   They would be used primarily for the extraction of  25 timber.  26 Q   I see.  They are also used for --  27 A   For fire protection and silviculture.  28 Q   -- for fire protection?  29 A   Correct.  30 Q   And they are used for the extraction of timber by the  31 timber companies that may hold cutting permits in  32 areas accessed by those roads?  33 A   That is correct.  34 MR. GUENTHER:  Thank you.  Those are my questions, my lord.  35 THE COURT:  Thank you.  Ms. Russell?  36 MS. RUSSELL:  No, thank you.  37 MR. PLANT:  I do have one question on re-examination, my lord.  38  3 9 RE-EXAMINATION BY MR. PLANT:  40 Q   Do members of the public have the right of access to  41 forest service roads, Mr. Downs?  42 A   Yes, they do.  4 3 MR. PLANT  4 4 THE COURT  4 5    MR. PLANT  Thank you very much.  All right.  What are you tendering, Mr. Plant?  I have no further need for the witness, my lord, but  46 subject to my friend's blanket objection, I would be  47 at this juncture tendering Exhibit 55-E for all 19449  Proceedings  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  It was marked,  MR.  THE  MR.  THE  MR.  THE  MR.  THE  MR.  THE  THE  THE  MR.  THE  MR.  THE  MR.  THE  MR.  THE  MR.  THE  PLANT  COURT  PLANT  COURT  PLANT  COURT  PLANT  COURT  PLANT  COURT  WITNESS  COURT  PLANT  COURT  purposes.  Likewise, Exhibit 55-F.  And what did you do about the map?  was it?  No.  We just marked it now for the first time.  All right.  So 55 — the map is 55-C?  The map is 55-E for identification.  Oh.  That number, my lord, was reserved back in May of  1987.  Yes, all right.  And F is this book, is it?  And the book should be 55-F.  Yes.  They are both for identification now then.  Yes.  As a result of my friend's objection.  All right.  Thank you, Mr. Downs, you are excused.  Thank you.  (WITNESS EXCUSED)  And we have nothing more to do today?  No, I do have another item.  All right.  GUENTHER:  I should say, however, that I have indicated to  my friend, my lord, that we will not now require the  COURT  PLANT  COURT  PLANT  COURT  PLANT  witness schedule for tomorrow morning for cross-  examination .  All right.  Thank you.  And as a result of my friend's helpful statement in  that regard, I wish to turn your lordship to page 2 of  the index of the binder of affidavits, and what I want  to do is to tender the affidavits, at least up to tab  16 of that book.  So —  Tab A will be the affidavit of Donald W. Russell and  I would tender that -- expect that to be exhibit  number 1132.  Yes.  And I have the original of that for the Registrar.  REGISTRAR:  Thank you.  (EXHIBIT 1132  17, 1989)  Affidavit of Mr. Russell dd. August  MR. PLANT:  The next item in sequence -- oh, well yes, in  that -- sorry, in connection with the affidavit of  Donald Russell, I would wish to tender for all  purposes the documents which are presently Exhibits  54-A for identification and 54-B.  THE COURT:  All right.  That those will be exhibits now.  MR. PLANT:  Mr. Russell's evidence is in relation to grazing 19450  Proceedings  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  MR. PLANT  THE  THE  MR.  THE  MR.  THE  MR.  THE  MR.  THE  THE  MR.  THE  MR.  COURT:  COURT  PLANT  COURT  PLANT  permits.  COURT:  All right.  REGISTRAR:  Are they exhibits for identification or are they  exhibits proper?  Yes, they become exhibits now.  Mr. Guenther will  let me know if there are any of these that should not  now be marked for -- as exhibits.  They are already marked as exhibits for  identification.  Yes.  REGISTRAR:  Are they to be exhibits proper?  PLANT:  I am going to be making that submission in due  course but the plaintiffs have an objection which  applies to them also.  Yes, all right.  I should say, I am only making reference to them so  that anyone reading the transcript would know that  documents 54-A and 54-B go along with Exhibit No.  1132.  Yes.  Now, for your lordship's assistance, at tab 9 is the  affidavit of Dr. Bandy.  That affidavit is already an  exhibit at trial, it is Exhibit 1114, and your  lordship may wish to make a note -- or your lordship  doesn't have to because I'll provide you with an  updated index.  But Dr. Bandy has been cross-examined  out of court on that affidavit, and the transcript of  his examination will be given the number 1114-A.  I'm  told it has been given that number.  Yes, all right.  And you are tendering -- --  Now there are some more affidavits in the binder.  All right.  No books of documents that go with  Exhibit 1114 or are they already in?  The documents that go with Exhibit 1114 have been  marked as exhibits proper 24-A and 24-B. They were  marked last week.  All right.  Thank you.  Now at tab -- now the next item down the list will  be at tab 10 of the black binder.  This is a second  affidavit sworn by Dr. Bandy, it deals with the  subject of water licences, and I don't have the  original of that affidavit in my binder, but  perhaps --  Well, this one can be marked.  Right. It's part of a series of affidavits which I  am now coming to that were all sworn in 1987 and they  were filed in court sometime ago.  So the original is  COURT  PLANT  COURT  MR. PLANT  COURT  PLANT  COURT  PLANT 19451  Proceedings  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. PLANT  THE COURT  MR. PLANT  THE COURT  MR. PLANT  THE COURT  MR. PLANT  THE COURT  MR. PLANT  THE COURT  already in the court files somewhere.  And what number was it?  And it doesn't have an exhibit number yet.  It doesn't.  Well then, it should be Exhibit 1133.  Yes.  (EXHIBIT 1133  1987)  Affidavit of Dr. Bandy dd. July 13,  All right.  And in that connection, it will be my submission  that Exhibits 38-A through G, all of which are water  licence maps or supporting documentation, and all of  which are currently exhibits for identification --  Yes.  -- that they should be marked as exhibits proper,  and that is subject to my friend's objection at the  moment.  The next item in the list is an affidavit of  Donald A. Duffy and this affidavit speaks to the map  number three which deals with areas designated for  recreation use and enjoyment of the public.  This  affidavit was also filed in 1987 and so it's -- the  original is in the court file and I ask that it be  given --  1134.  -- the exhibit number 1134.  Yes.  (EXHIBIT 1134  1987)  Affidavit of Mr. Duffy dd. July 13,  MR. PLANT:  THE COURT  MR. PLANT  In that connection, I would seek to tender as  exhibits proper the exhibits which are currently  numbered for identification, 36-A, 36-B and 36-C  All right.  Now, I should say that my friends had cross-examined  Dr. Bandy on the water licences affidavit.  They have  also cross-examined Mr. Duffy on this affidavit and I  assumed that they will want to tender the transcripts  of those cross-examinations.  Well, they can do that now or when the exhibits are  finally marked, with such indication.  GUENTHER:  Yes, my lord, we do wish to tender them, and  perhaps we could reserve the numbers because we don't  have them with us.  THE COURT:  Well, they will be given a sequence.  I think the  THE COURT:  MR. 19452  Proceedings  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.  THE  MR.  THE  MR.  THE  MR.  THE  MR.  THE  MR.  THE  affidavits would be given the same exhibit number as  the affidavit with a prefix or a suffix.  GUENTHER:  Thank you.  PLANT:  I am told that there may almost be something like a  practice in this regard, so that Dr. Bandy's affidavit  which is now Exhibit 1133 might have a transcript  number 1133-A.  Yes.  But Mr. Guenther won't want to do that  until -- perhaps won't want to do that until he sees  whether these documents go in, or maybe he wants to  put it in anyway.  He hasn't got them here anyway so  there is no point trying to decide how that will be  done.  That's fine.  I prefer to reserve the decision on that, my  MR.  MR.  THE COURT  PLANT  GUENTHER:  lord  COURT:  PLANT:  COURT  PLANT  THE COURT  Yes, thank you.  It's simply a question of what number they will get  and I'm happy to leave that.  All right.  The next item then will be the item at tab 12 of the  black binder of alienations custodial affidavits, and  that is another affidavit of Donald Duffy filed in  July of 1987.  It deals with the subject of surveyed  district lots which is map 12 in the alienations  series, and I would ask that that be given the exhibit  number 1135.  Yes.  (EXHIBIT 1135  1987)  Affidavit of Mr. Duffy dd. July 13,  MR. PLANT  COURT  PLANT  COURT  PLANT  COURT  PLANT  COURT  In connection with that affidavit, I would seek to  tender the map and supporting documentation which are  now marked for identification as exhibits 39-A, 39-B  and 39-C  I would seek to tender those as exhibits  proper subject, of course, to my friend's objection.  All right.  The next item is a further affidavit of Donald  Duffy, but before I proceed to that, I should say that  my friends have cross-examined Dr. Duffy on all three  of the affidavits which are referred to on this index.  Yes.  And there is one transcript in respect of all three.  Yes.  So dealing --  This affidavit will be 1136. 19453  Proceedings  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. PLANT:  The school district boundaries affidavit at tab 13  should be 1136, my lord.  THE COURT:  Yes.  MR. PLANT  THE  MR.  MR.  THE  MR.  MR.  COURT  PLANT  THE COURT  PLANT  COURT  PLANT  THE COURT  (EXHIBIT 1136  1989)  Affidavit of Mr. Duffy dd. August 14,  The exhibit numbers are 47-A-l, 47-A-2, and 47-B.  What I've said before applies to them.  Then at tab 14, Mr. Clancy's affidavit which deals  with mineral, placer and coal tenures, may that be  1137?  Yes.  I'm sorry, it deals with what?  Mineral, placer and coal tenures.  There are a  number --  I'm sorry, I didn't get a note of what tab 13, Mr.  Duffy -- I think you said -- later you mentioned it  had something to do with school districts?  Yes.  School district boundaries.  All right.  Then Mr. Clancy's affidavit at tab 14, mineral,  placer and coal tenures, the map itself is marked as  Exhibit 37-A for identification and then there is a  variety of source documentation.  I'll just read the  numbers as they are given on the index.  37-B, 37-C,  37-C-l, 37-D, 37-E, and 37-F.  Mr. Clancy has been  cross-examined out of court on his affidavit.  His  affidavit was filed in 1987, the originals should be  in the court file already.  All right.  That will be, 1137.  (EXHIBIT 1137  1987)  Affidavit of Mr. Clancy dd. July 6,  MR. PLANT:  Now at tab 15 of the book of affidavits I have the  affidavit of Robert May.  I have the original of that  affidavit.  That's one of the affidavits on which my  friends have waived their right of cross-examination.  THE COURT:  That will be 1138.  MR. PLANT:  Very good, my lord.  (EXHIBIT 113?  1989)  Affidavit of Mr. May dd. August  PLANT:  And that affidavit speaks only to the source  documentation booklet marked Exhibit 47-B for  identification which is concerned with school district 19454  Proceedings  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  boundaries.  And the next affidavit is the affidavit of Harry  Goldberg, and I have the original of that affidavit  which is tab 16 of the book.  THE COURT:  1139.  (EXHIBIT 1139  1989)  Affidavit of Mr. Goldberg dd. July 2?  MR. PLANT  THE COURT  MR. PLANT  THE COURT  :  Mr. Goldberg's affidavit deals with the electoral  districts map and source documentation.  The map is  Exhibit 46-A for identification and the source  documentation is Exhibit 46-B for identification.  My  friends have waived their right of cross-examination  of Mr. Goldberg.  The affidavit of Mr. McKinnon filed May 6th,  1987, is in the court file and I won't recite the many  exhibit numbers that it speaks to.  Mr. McKinnon, as  you may recall, was the person in charge of taking the  Ministry return maps and producing the series of maps  for courtroom use.  :  Yes.  :  I would ask that his affidavit be given the number  1140.  :  Yes.  (EXHIBIT 1140 - Affidavit of Mr. McKinnon dd. May 6,  1987)  Which maps did  He is  THE COURT:  I'm sorry that I — you've lost me.  he prepare?  MR. PLANT:  Mr. McKinnon works for Public Service Canada  a --  MR. MACKENZIE:  Department.  MS. RUSSELL:  Department of Public Works.  MR. PLANT:  Department of Public Works, thank you.  THE COURT:  Yes.  MR. PLANT:  His job was to take the original maps prepared by  each of the provincial ministries and then to prepare  a set of 12 maps for courtroom use.  So he took  whatever it was that had been prepared by the  Ministry, and in some cases reproduced them and  mounted them on foam-cork backing, and in other cases  added some colour and that sort of thing.  THE COURT:  All right.  MR. PLANT:  I think the phrase that he uses in his affidavit is  "technical assistance".  In any rate, that's what he 19455  Proceedings  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  did.  Lastly, there is a further affidavit, a  supplementary affidavit of Mr. McKinnon dated July  27th, 1989.  I have that affidavit here and I would  ask that it be given exhibit number 1141.  :  Yes.  (EXHIBIT 1141 - Supplemental Affidavit of Mr.  dd. July 27, 1989)  McKinnon  MR. PLANT  THE COURT  MR. PLANT  THE  MR.  THE  MR.  COURT  PLANT  COURT  PLANT  THE  MR.  THE  MR.  THE  THE  There he sets out the process whereby the court  copies of two further maps were prepared, the maps for  guide and outfitters' boundaries and forest service  roads.  But again, it's the issue of technical  assistance.  These maps to which Mr. McKinnon deposes, they are  all included in other clutches of exhibits, are they?  Yes.  The -- well, the maps which Mr. McKinnon  deposes to are all the original from which he worked,  and are all -- have all -- all being the subject of  the other affidavits.  Yes, all right.  If I might just take a moment to ask my colleagues  what mistakes I've made.  Yes, thank you.  My lord, it may be of some assistance if I hand up  to Madam Registrar copies of one or two of the  affidavits that are in the court file.  But perhaps  rather than take time to do that now, we will do that  at another juncture.  I did want to be sure that I had mentioned that  Mr. Clancy, the mineral, placer and coal tenures  person was cross-examined on his affidavit.  And I  think that that's all that I have to do in that  connection right now.  Yes, all right.  I have no other business at the moment, my lord.  Thank you.  And you won't need to reconvene  tomorrow, but we will resume on Thursday morning.  Very good.  All right.  Thank you.  REGISTRAR:  Order in court.  Court stands adjourned until  ten o'clock on Thursday.  COURT  PLANT  COURT  PLANT  COURT 19456  Proceedings  1 (PROCEEDINGS ADJOURNED AT 12:10 P.M.)  2  3  4 I hereby certify the foregoing to be  5 a true and accurate transcript of the  6 proceedings herein transcribed to the  7 best of my skill and ability.  8  9  10    11 Toni Kerekes, O.R.  12 United Reporting Service Ltd.  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47


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