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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1989-09-11] British Columbia. Supreme Court Sep 11, 1989

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 19402  Proceedings  1 Vancouver, B.C.  2 September 11th, 1989  3  4 (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT)  5  6 THE REGISTRAR:  In the Supreme Court of British Columbia, this  7 11th day of September, 1989.  In the matter of  8 Delgamuukw versus Her Majesty the Queen, at bar, my  9 lord.  10 MR. PLANT  11 THE COURT  12 MR. PLANT  13 THE COURT  My lord.  Good morning, Mr. Plant.  Welcome back.  Thank you.  I'm glad to be back.  I'm sure.  14 MR. GUENTHER:  My lord, I should introduce myself for the  15 record.  Stan Guenther, appearing for the plaintiffs  16 with Mr. Adams today.  Rather fresh bloodedly, I  17 suppose.  18 THE COURT:  Thank you, Mr. Guenther.  You and Mr. Plant are both  19 welcome.  Mr. Plant.  20 MR. PLANT:  My lord, I will be responsible for calling the next  21 eight witnesses, all of whom have sworn affidavits as  22 custodians of the source material on which the  23 alienations mapping project was based.  I have  24 prepared a book which contains copies of these  25 eight -- the eight affidavits that I will be  26 proceeding through over the course of the next three  27 days.  And the balance of the affidavits, depending on  28 how the week progresses, I hope to be able to have  29 marked as full exhibits.  If I might somehow hand  30 that —  Certainly.  -- Book up to your lordship.  Thank you.  I'd like also at this -- if I might also at this  35 point hand up to your lordship copies of the  36 supporting documentation.  37 THE COURT:  Thank you.  38 MR. PLANT:  For what we in the course of the alienations  39 project, as it is sometimes called, have referred to  40 as maps 18 through 23.  If your lordship will look for  41 a moment at the black binder that I've handed up.  42 There is an index at the front, and the index in the  43 left-hand column has in what I expect will be the  44 order in which they are called the names of the eight  45 affiants and then the remaining affiants.  In the  46 second column from the left is the exhibit number and  47 the so-called map number that they will be speaking  31 THE COURT  32 MR. PLANT  33 THE COURT  34 MR. PLANT 19403  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  MR.  THE  MR.  THE  MR.  COURT  PLANT  COURT  PLANT  COURT  PLANT  THE  MR.  COURT  PLANT  about and then an inscription.  These are exhibits -- 48A is an exhibit at trial?  Yes.  Exhibit for identification.  I 'm sorry.  48 --  The number Exhibit 48A is an exhibit for  identification.  Yes.  All right.  That's the same for all of them.  And that is the same, I believe, for all of them.  That is to say that unless I'm making a mistake as to  one or two the exhibit numbers in that column on both  pages refer to exhibits for identification only.  Yes.  I'm advised by my colleague that Exhibit 55C has been  marked already for all purposes.  That's the third  item from the bottom, the map respecting -- with  respect to guide and outfitters boundaries.  We won't  get to that for probably a day or so.  In the third column is a description of the  subject matter of the map and the supporting  documentation.  In the fourth column is a  description -- well, really just the identification of  the exhibit number, again an exhibit for  identification number of the source documentation that  accompanies each of the maps.  And the column under  tab is self-explanatory.  The affidavits should  correspond to the tab numbers in your book.  Finally,  the blank column for exhibits which I hope to be  filling as the week goes on.  If I could then take  your lordship to tab 1 of this binder, unless your  lordship has any questions.  No.  Thank you.  The first affidavit is of Mr. R.G. Harding.  In  order to make some sense of Mr. Harding's evidence I'd  ask your lordship to have at hand the affidavit at tab  1, the series of maps and overlays which we have  called from time to time the six quadrant series, and  if my recollection is correct these are the maps here.  If I could trouble your lordship.  I'm not sure if  your lordship will be referred to them at great  length, but there they are.  And, lastly, the books  which are identified in the index in connection with  Mr. Harding's affidavit.  And I expect that your  lordship already has those books in front of you.  The  book that I will be referring to first in time is the  book which is Exhibit 48B for Identification and  should be entitled map 18 volume -- source  documentation volume 1 timber sales.  Now, if that is  the book in the top of the pile then so far so good. 19404  Proceedings  1 THE COURT:  Yes.  2 MR. PLANT:  And at that point, my lord, I just remind your  3 lordship that the aim of this project was to, and is,  4 to show the boundaries and the locations of various  5 tenures and administrative areas as at October 23rd,  6 1984, the date the action was commenced by the  7 plaintiffs.  8 I then ask to call Mr. Harding to the stand.  Mr.  9 Harding, would you come forward.  10 THE COURT:  Mr. Adams.  11 MR. ADAMS:  My lord, this is something that may take the witness  12 to clear up, but it may not.  The exhibit numbers that  13 are listed both in the affidavit and in my friend's  14 index to the black binder he's handed up this morning  15 don't appear to correspond to the exhibit numbers  16 marked on the plastic overlays.  And I have no -- no  17 idea why that is so, but it appears to be so.  And my  18 friend may be able to help with that.  19 MR. PLANT:  If I could trouble your lordship for a moment to  20 have a look again at the maps that your lordship's  21 been handed, because they are the only set with the  22 exhibit numbers on them.  Well, at the moment, my  23 lord, I apologize for this little interlude, but I  24 don't see my friend's problem.  Perhaps it might be  25 convenient rather than take up your lordship's time  26 with this if we do it during the break, assuming we  27 can get that far without the problem becoming  28 insurmountable.  But the fact is that in respect of  29 your lordship's copies, the overlay series themselves,  30 each of the plastic overlays has been stamped with an  31 exhibit number and so far as I can tell the exhibit  32 number given to the various overlays do correspond  33 with my index, but I certainly -- I'm certainly open  34 to correction on that.  There is this complication, if  35 it is a complication, we're dealing with seven  36 different types of information here.  And I think if I  37 give you back the maps and ask your lordship to look  38 at the first series of maps the first document your  39 lordship has there is identified as quadrant six and  40 there should be a number of plastic overlays on top of  41 a base map.  And what happened was that the land claim  42 area was divided into six quadrants of geographical  43 areas.  The various tenure information was equally  44 broken down into six quadrants.  Your lordship has  45 quadrant six.  There should be a number of overlays.  46 In this case overlay number one, overlay number two,  47 overlay number three, four -- there is nothing for 19405  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  Proceedings  R.G. Hardings (for Province)  In chief by Mr. Plant  four, but there is an overlay for five, six and seven.  And on your lordship's copy each of those sheets  should have some exhibit stamps on them.  The black line is the external boundary of the claim  area?  The black line on the base map is intended to  represent the external boundary of the claim area as  in the first Statement of Claim.  Yeah.  All right.  Based on the metes and bounds description contained  in the first Statement of Claim.  Perhaps at this point I could call Mr. Harding to  the stand.  Yes.  Mr. Harding, could you come forward, please.  REGISTRAR:  Will you stand in the witness box, please, sir.  Take the Bible in your right hand.  ROBERT GERALD HARDING, a witness  called on behalf of the Province,  having first been duly sworn,  testified as follows:  THE REGISTRAR:  Would you state your full name, and spell your  last name, please, sir.  A   Robert Gerald Harding.  H-A-R-D-I-N-G.  THE REGISTRAR:  Thank you, sir.  Please be seated.  EXAMINATION IN CHIEF BY MR. PLANT:  Q   Mr. Harding, are you the manager timber tenures of the  Timber Harvesting Branch of the Ministry of Forests of  the Government of British Columbia?  A   Yes.  Q   I'm going to place before you a black binder which  contains a number of documents.  And at tab 1 of that  document -- of that binder is what purports to be your  affidavit.  Would you turn to the sixth page of that  document, please.  Now, recognizing what you have in  front of you as a photocopy, is that a photocopy of  your signature above your name on the right-hand side  at the bottom?  A   Yes.  MR. PLANT:  My lord, I tender this as the next exhibit on the  understanding that the original will be available, and  when we make the original available that it could be  marked at that time.  My understanding is that will  become Exhibit 1125.  I rely on Ms. Sigurdson for that 19406  R.G. Harding (for Province)  In chief by Mr. Plant  1 information, my lord.  I don't claim to have it in my  2 head.  3 THE COURT:  I believe that's right, isn't it?  4 THE REGISTRAR:  Yes, I believe that's right also.  5 THE COURT:  All right.  6  7 (EXHIBIT 1125:  Affidavit of Mr. R.G. Harding)  8  9    MR. PLANT:  10 Q   Mr. Harding, are the statements in this affidavit  11 true?  12 A   Yes.  13 Q   I do have one or two questions that I'm going to ask  14 you to get some familiarity with the format that we  15 follow, or has been followed here.  But, firstly, for  16 how long have you been employed by the Ministry of  17 Forests?  18 A   It will be 30 years in June.  19 Q   Could you briefly describe what the responsibilities  20 are of the Timber Harvesting Branch of the Ministry of  21 Forests?  22 A   The responsibilities of the branch or my  23 responsibilities?  24 Q   Well, let's deal with the responsibilities of the  25 branch.  26 A   To administer the disposition of timber in the  27 province.  28 Q   And your particular responsibilities?  29 A   Development of legislation, policy and procedures to  30 guide that administration, as well as the disposition  31 of major forest licenses.  32 Q   What records does the Timber Harvesting Branch keep in  33 relation to forest tenure?  34 A  Mapping information and filing information on the  35 various tenures issued.  36 Q   Does the branch keep copies of license documents?  37 A   Yes.  Originals, yes.  38 Q   And any other documents?  39 A   Status reports, any reports or information regarding  40 legal aspects of the -- of the licenses.  41 Q   Thank you.  Now, if I could ask you to turn to  42 paragraph 2 of your affidavit.  Then if I could ask to  43 have you look at the documents in the book, the first  44 book of map 18, which is Exhibit 48B, which your  45 lordship should have.  And I'm going to have to share  46 my copy with you, Mr. Harding.  Now, the first map,  47 the so-called map 18, is stated as dealing with timber 19407  R.G. Harding (for Province)  In chief by Mr. Plant  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. ADAMS  MR. PLANT  THE COURT  MR. ADAMS  THE COURT  MR. PLANT  supply areas.  And if your lordship has tab A, the  third page of the book.  Mr. Harding, could you explain briefly what timber  supply areas are, tree farm licenses and the  relationship between them?  :  My lord, I haven't objected to this point, but my  understanding was that this witness was being tendered  to be cross-examined on an affidavit.  We don't have a  summary of evidence beyond what's in the affidavit and  materials.  We don't have any notice that it was  proposed to call him independently of his affidavit.  I'm not sure on what basis my friend is proceeding to  treat him as a witness at large.  :  Well, I'm asking him some questions to try and just  elaborate or give flush to a number of the statements  that are already in the materials.  Simply a question  of familiarizing your lordship with the material  that's before you.  I don't propose to go through it  at great length, and really that's it.  :  Well, I'm not sure, Mr. Adams, that there's any  fixed rule that provides a witness being tendered for  cross-examination can't be examined in chief unless  there's a breach of some other prohibition against  admissibility.  You've mentioned one, if he gets into  opinion evidence of which notice hasn't been given it  will be objectionable, and there may be others.  But  if, as Mr. Plant says, he's merely attempting to  explain some matters that are raised in the material  that is expected to be tendered in cross-examination  it seems to me that the legal consequences is to limit  the right of re-examination rather than prevent him  doing what counsel wants to do at this stage.  Have  I -- have I simplified the problem too greatly?  :  No.  And I have no great difficulty with where my  friend has gone so far.  Certainly the practice on  cross-examination of the plaintiffs' territorial  witnesses on their affidavits was simply to tender  them, and the cross-examinations were the start of the  proceedings, and there was in many cases  re-examination after that.  :  Yes.  Well, I can only say that I tend to think that  on those territorial examinations the party tendering  them could have asked some preliminary questions.  :  And, of course, in many cases the witnesses who were  examined at great length on commission also had  affidavits produced by my friends.  So in the case of  Mr. Stanley Williams I think he went several days in 1940?  R.G. Harding (for Province)  In chief by Mr. Plant  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:  Q  A  A  Q  A  chief in which my friends calling -- Mr. Grant  examined the witness at considerable length on the  affidavit -- on the territorial affidavit.  I think you can proceed.  You've been warned about  your possible compromising of your right of  re-examination.  With that, Mr. Harding, could you, please, briefly  describe what timber supply areas are, tree farm  licenses and, as I say, the relationship between them?  Well, the province is too big to plan and regulate the  management of resources in its entire size so it's  divided and subdivided into a number of more  manageable units for planning and regulation.  There  are approximately 69 of these units in the province,  and approximately half of those are called timber  supply areas.  And in those units the Ministry of  Forests is responsible for the strategic planning and  the regulation of harvest.  In the other -- in  approximately the other half of those units the  responsibility for strategic planning has been given  to a forest company over again a fixed geographical  area, and those are termed tree farm licenses.  The  ministry still regulates the activities within those  management units, but the responsibility for strategic  planning, inventory, those kind of things are retained  with the licensee, with the holder of the tree farm  license.  They're both managed on a sustained yield  unit basis.  The primary difference is that one is a  forest company and the other the responsibility is  with the Ministry of Forests for strategic planning.  Thank you.  I then wanted to turn your attention to  paragraph B -- to sub B of your affidavit which deals  with map 19.  And map 19 is described in your  affidavit as "Historic Sites and Collins Overland  Telegraph Trail", being overlay seven of the six  quadrant map series, trial Exhibit 49.  Does the  Timber Harvesting Branch, Mr. Harding, keep records of  such matters such as historic sites and trails?  We keep records of historic sites and trails in  provincial forests, plus any other information we get  from other agencies such as the Ministry of Crown  Lands.  Why -- why does the branch keep such records?  We have to have the information, because when we  status areas within provincial forests to authorize  harvesting we have to know if there is any potential 19409  R.G. Harding (for Province)  In chief by Mr. Plant  1  2  Q  3  4  A  5  6  Q  7  8  9  10  A  11  12  13  14  15  Q  16  17  18  19  20  21  22  23  24  25  26  27  28  29  A  30  Q  31  32  A  33  Q  34  35  A  36  MR.  PLANT  37  38  39  40  41  THE  COURT  42  MR.  PLANT  43  THE  COURT  44  MR.  PLANT  45  Q  46  47  A  conflicts with other uses.  Within provincial forests do historic sites and trails  have any official status?  Yes.  They will be covered by either a tenure under  the Forest Act or a map designation.  If I could then just direct your attention down to on  page two of your affidavit paragraph 2(d), map 21,  "Public Sustained Yield Units".  What is or was a  public sustained yield unit?  It was a planning and regulatory unit just like the  current timber supply area is except it was replaced  by the timber supply area.  It's still on our maps and  records, but it is not used as the primary planning  and regulatory unit any more.  Now, I'd then like to jump ahead, if I might, to  paragraph 4 of your affidavit, which says in part:  "I also supervised the preparation of certain  booklets relating to the above noted maps as  follows:"  And then there's a list.  And, my lord, I think  there to be an error in the description of the first  book.  Paragraph 4(a), map 18, volume 1 should  continue timber supply areas, not timber sales.  And, Mr. Harding, did you personally prepare  either of the maps which we've made reference to, or  the books that we've referred to?  No.  Are there persons employed by the Ministry of Forests  whose business it is to prepare maps of forest tenure?  Yes.  And were the maps in the overlay series prepared by  such persons?  Yes.  :  If I could turn next to paragraph 7, eight and nine.  I don't have any questions for Mr. Harding here, but  I'd ask your lordship to -- in reference to paragraph  7 find the certificate which should be the second page  of Exhibit 48B.  Second page of --  Second page -- first page being the title page.  Yes.  And there is a letter.  Can you identify the signature  there, Mr. Harding?  Bill Clifford. 19410  R.G. Harding (for Province)  In chief by Mr. Plant  Discussion  1 Q   And is he the Bill Clifford that's identified in  2 paragraph 7 and other paragraphs of your affidavit?  3 A   That's correct.  4 MR. PLANT:  And your lordship will see that there are references  5 in this letter to the documents which are the bulk of  6 the documentation in the balance of this book and in  7 the other books.  Where appropriate there are similar  8 letters or certificates of Mr. Clifford.  9 Those are all my questions of you, Mr. Harding.  10 THE COURT:  All right.  Thank you.  Mr. Adams.  11 MR. ADAMS:  My lord, before I commence my cross-examination I  12 might deal quickly with one matter that may shorten  13 the cross-examination.  I had asked my friend on  14 Friday afternoon for figures relating to harvest,  15 timber harvest in the Kispiox timber supply area for  16 1988, and his initial answer was the figures were not  17 only unavailable but they're irrelevant.  He tells me  18 this morning they are available.  He will make them  19 available.  He still says they are irrelevant.  I  20 would seek clarification from my friend then, or the  21 court, that the province is not seeking to rely and is  22 not entitled to rely on its activities related to  23 timber tenures or other subjects covered by the  24 alienations maps and documents post October, 1984, and  25 I should say, so I accept the figure is irrelevant and  26 I won't pursue the question.  27 MR. PLANT:  Maybe I should put it this way, my lord, if my  28 friend has a question he puts to the witness -- well,  29 I don't know.  I better not presume too much on my  30 long absence and just take consultation for a minute,  31 if I may, my lord.  32 THE COURT:  Yes.  33 MR. PLANT:  My concern is this, my lord, so far as I can recall  34 the position of the province is that what your  35 lordship has to determine is effective as of October  36 23rd, 1984 what was the position of the status of  37 various tenures in administrative boundaries as of  38 that date.  On that basis I'm inclined to say that  39 what happens after that is irrelevant.  However, I  40 have in mind the fact that during the course of their  41 examinations in chief of the plaintiffs' lay  42 witnesses, which I have some vague recollection of,  43 the plaintiffs did adduce evidence of activity  44 relating to tenure post 1984, and that there was also  45 some cross-examination on those matters.  That leaves  46 me in a state of some uncertainty as to what the  47 position should be in relation to my friend's 19411  R.G. Harding (for Province)  Discussion  1 question.  I prefer to take the matter under  2 advisement, but I also don't want to delay the  3 cross-examination for that reason.  As my friend has  4 indicated I was able this morning, where I was not  5 late Friday afternoon, to get the figure that he wants  6 in respect of the harvest within the Kispiox timber  7 supply area for 1988.  When I say I was able to get  8 that I was able to impose on Mr. Harding to make the  9 necessary inquiries to obtain that figure.  And I can  10 provide that figure to my friend, and perhaps if I  11 could see where he goes with it then I will say I can  12 hold back for a minute and maybe we won't come to a  13 point where I have concern beyond that.  14 THE COURT:  All right.  But while you gentleman are thinking  15 about this I can tell you that this problem arose, as  16 I recall, in connection with a demonstration or a  17 protest against the railroad in I think the evidence  18 of Mr. Art Matthews, Jr. and it was -- I ruled then  19 that that sort of thing would not be relevant because  20 it's something that could be contrived, is the word  21 that springs to mind and doesn't carry quite the  22 connotation I had in mind, but it could be something  23 that was undertaken for the purpose of creating  24 evidence.  I'm not sure.  And I leave open for  25 counsels' assistance and further consideration the  26 question of the possible relevance of an ongoing  27 process that was underway at the time of the issuing  28 of the writ, and which continues more or less in the  29 same way, or at least for the same purposes.  Now, I  30 don't know if that's of any assistance to counsel, but  31 it does seem to me that there is a difference, or  32 there may be a difference between something that  33 happens in a free standing sort of way or as a result  34 of a new initiative after the start of the action on  35 the one hand, and something that's been ongoing for  36 many years on the other hand.  I merely throw that out  37 for whatever response counsel wish to make to that.  38 MR. PLANT:  I was wondering if I could impose on your lordship  39 to this extent by saying it would be of considerable  40 assistance to me if I had some idea of my friend's  41 views on the relevance of this information, because  42 then I could figure out what it's all about.  As it  43 follows from what I have said that if my friend wants  44 the figure for 1984 then subject to its availability,  45 and the reasonableness of the request that it appears  46 to be relevant information.  47 MR. ADAMS:  Well, my lord, it would be my friend's and his 19412  R.G. Harding (for Province)  Discussion  1  2  3  4  5  6  7  8  9  10  11  MR.  PLANT  12  MR.  ADAMS  13  MR.  PLANT  14  15  16  17  18  19  20  THE  COURT  21  22  23  MR.  PLANT  24  25  26  MR.  ADAMS  27  28  29  30  THE  COURT  31  32  MR.  ADAMS  33  34  35  36  37  38  39  40  THE  COURT  41  42  MR.  ADAMS  43  44  45  46  47  THE  COURT  colleagues argument, if anything, that would make the  information relevant.  What I'm anxious not to do is  have a witness go by who is in a position apparently,  given his position, to provide this kind of  information, have it later argued that the information  is relevant and then have it inaccessible.  So my  suggestion for bypassing the difficulty would be that  if my friend will undertake to provide some  information of this character then it can be left for  a later argument --  Well, I can assist my friend.  -- Whether or not it's relevant.  I can assist my friend on one point.  I'll never use  the figure for the harvest from the Kispiox timber  supply area for 1988 in cubic metres as the situation  stands now.  If he wants to make it relevant then or  somehow it is part of his case then obviously my  position may change, but as things stand right now  it's no part of my case.  The precise volume is no part of your case, or the  the extraction or continuation of wood is no part of  your case?  The figure for harvest from the Kispiox timber  supply area for the year 1988, which is the  information that my friend has asked for.  My lord, I'm not sure whether I got an answer to my  request for an undertaking to supply information if it  should become relevant on an argument raised by my  friend.  Well, your friend says he wouldn't be making such an  argument.  Yes.  And what makes me cautious is what I looked  for initially was some assurance that no argument  would be based on tenures or activities post '84, and  my friend isn't able to supply that, and therefore I'm  in the same difficulty I was before that.  Here is the  witness who presumably has access to this information.  If I complete a cross-examination and he's gone I  can't have him back again.  I don't even wish --  I'm not sure that's right, Mr. Adams.  If something  needs to be done the witness can be brought back.  All right.  Then I'd seek to proceed on that basis,  that should information become relevant on an argument  raised by either of the defendants it would be open to  the plaintiffs to recall this or another suitable  witness.  I have to put it little more stringently than that. 19413  R.G. Harding (for Province)  Discussion  Cross-exam by Mr. Adams  1 It's open for the plaintiffs to seek leave if  2 something goes on and if he needs to be called on it.  3 Anything that's a matter of record and is easily  4 obtainable with reasonable ease is something, I think,  5 I would probably order that it should be -- it should  6 be obtained either by way of a transmittal by counsel  7 or by having the witness back.  I wouldn't want to  8 write any blank cheques at this moment about how many  9 witnesses may be called back and for what purpose.  10 MR. ADAMS:  Yes.  I'm content to proceed on that basis, my lord.  11 THE COURT:  Good.  All right.  Thank you.  12  13 CROSS-EXAMINATION BY MR. ADAMS:  14 Q   Mr. Harding, you indicated you had been with the  15 Ministry of Forests in the area of 30 years?  16 A   Yes.  17 Q   Was that your entire career as a civil servant?  18 A   Yes.  19 Q   And how long have you been manager of timber tenures,  20 Timber Harvesting Branch in the Ministry of Forests?  21 A  Approximately a year and a half.  22 Q   And what was the nature of your responsibilities --  23 what was your title before that?  24 A   I was manager of wood lot licenses in Indian Affairs.  25 Q   And for what period was that your title?  26 A   I'm not entirely sure when I started.  I believe it  27 was around 1984.  I'm not sure of that.  28 Q   And what were the responsibilities attached to being  29 the manager wood lot licenses in Indian Affairs?  30 A   Developing legislation and policies and procedures for  31 wood lot licenses, and being the contact person in the  32 ministry for matters relating to Indian Affairs.  33 Q   Contact person for whom?  34 A   For the ministry.  35 Q   I'm sorry.  On the other end of things.  Who  36 contacting the ministry?  37 A   Native people contacting the ministry or -- yeah,  38 primarily that.  39 Q   In general or confined to wood lot licenses?  40 A   In general.  41 Q   Okay.  And perhaps from that perspective you can  42 confirm for me that the ministry takes the view as a  43 matter of discharge of its responsibilities that it  44 has no business dealing with questions of aboriginal  45 title?  46 A  We consider that to be outside of our jurisdiction.  47 Q   Outside of the Ministry of Forests' jurisdiction?  Is 19414  R.G. Harding (for Province)  Cross-exam by Mr. Adams  1  2  A  3  Q  4  5  MR.  PLANT  6  MR.  ADAMS  7  8  9  THE  COURT  10  11  12  13  MR.  ADAMS  14  Q  15  16  17  MR.  PLANT  18  19  THE  COURT  20  21  22  MR.  PLANT  23  24  25  26  27  28  29  30  31  THE  COURT  32  33  34  MR.  ADAMS  35  36  37  THE  COURT  38  A  39  40  41  42  MR.  ADAMS  43  Q  44  45  46  47  A  that yes?  Yes.  And why is that from the point of view of the  ministry's view of how it runs its operation?  :  I object to that question as framed.  :  I'd be assisted by knowing what's objectionable  about it.  I'm not asking him to interpret the law.  I'm asking the ministry's view of its responsibility.  :  I think that's relevant.  I'm not sure it's going to  be all that helpful.  It may have some very funny  reasons or very valid ones, but it is  cross-examination.  Are you able to say, Mr. Harding, why it is that the  ministry considers matters of aboriginal title outside  its jurisdiction?  :  I still don't see what conceivable relevance this  has .  :  Oh, well, I'm not sure either, Mr. Plant.  I'm not  at this stage concerned by the matter going too far  afield.  :  I only have this concern, my lord, if we are going  to have a succession of eight witnesses over the next  three days give their views of ministry policies of  aboriginal title the next few days is going to be a  little longer than that.  I'm fully cognizant of the  fact that the cross-examination may go beyond the four  corners of the material deposed to in the affidavit,  but this is still subject to the criteria of relevance  which I urge your lordship to consider.  :  Well, because I allow the witness to be asked the  question does not mean I would allow it to be asked of  every witness.  :  My lord, this witness has indicated that he had a  particular responsibility in this area and that's what  leads to the question.  :  Yes.  You may answer the question.  It's a matter of policy.  Just because of the nature  of the matter I just accepted that as policy.  I could  give you -- I could guess at why, but there wouldn't  be any point in that.  And from that I take it that the ministry's  administration of timber tenures in its view of its  responsibilities is in a separate track altogether  from questions of aboriginal title?  That's correct. 19415  R.G. Harding (for Province)  Cross-exam by Mr. Adams  1 Q   Has that been true as long as you have been in a  2 position to know in the ministry?  3 A   Yes.  4 Q   And when would that be?  5 A  Again, I couldn't give you an exact date.  A good date  6 would be when I started in my previous position, which  7 was, I think, around 1984.  8 Q   And I gather that among your present duties are acting  9 in some circumstances, at least, as a public  10 spokesperson for the Ministry of Forests?  11 A   Yes.  12 Q   That is as recently as Friday you're at least quoted  13 in the paper as answering press questions about  14 ministry activities?  15 A   Yes.  I haven't seen that, but I remember answering  16 the questions.  17 Q   Do you have any specific training in mapping?  18 A   No.  No specific training.  19 Q   I take it though that you have some experience in  20 dealing with maps?  21 A   Yes.  22 Q   What's the nature of that experience?  23 A  We deal with maps all the time in the ministry.  And  24 ever since I've been in it we've been working with  25 maps, preparing maps or reading maps.  It's impossible  26 to avoid.  27 Q   You're not yourself a cartographer though, are you?  2 8 A   No.  29 Q   And are you responsible for any duties within the  30 ministry involving drawing maps?  31 A   Not directly.  32 Q   And I take it from the contents of your affidavits and  33 your answers to my friend Mr. Plant this morning that  34 you are broadly familiar with the records kept by the  35 Ministry of Forests?  36 A   Yes.  37 Q   And you're in a position to know which records are  38 kept by the ministry and which are not?  39 A   Yes.  40 Q   And I take it further you're in a position to explain  41 the contents of ministry documents and maps?  42 A   Yes.  43 Q   Now, I wonder if you could look at your affidavit  44 which is at tab 1 and on the first page at paragraph  45 one.  And there you say in the second sentence:  46  47 "I supervised preparation of certain maps for 19416  R.G. Harding (for Province)  Cross-exam by Mr. Adams  1 presentation at the trial of the within  2 proceeding."  3  4 Are those the plastic overlay maps on the six  5 quadrant system?  6 A   That's correct.  7 Q   And were you -- did you supervise the preparation of  8 any other maps in connection with this court case?  9 A   No.  Those were primarily the ones.  10 Q   And who was actually responsible for drawing those  11 plastic overlay maps?  I understand the base map was a  12 given, but as far as drawing the overlays.  13 A   Bill Clifford was responsible for having that done  14 within -- with his -- within the drafting staff of the  15 ministry of the Timber Harvesting Branch.  16 Q   And I take it beyond that you don't know who actually  17 put the lines on the map?  18 A   The draftsman.  They probably each -- there was  19 probably more than one involved.  20 Q   Now, do you recall getting some directions in  21 connection with your work on forest tenures for this  22 case?  Do you recall communicating with Mr. Frey --  23 this would be in late 1985 -- as to what it was you  24 were being asked to do as part of your alienations  25 project?  26 A   Yes.  27 Q   Okay.  And do you further recall Mr. Frey asking you  28 in November of 1985 to have plotted on a map the  29 boundary -- the boundaries of timber tenures in effect  30 between 1858 and 1871?  31 A   Yes.  32 Q   And did you do that?  33 A   No.  34 Q   Why not?  35 A  We weren't in business until 1912.  36 Q   Did you plot them as of 1912?  37 A  We plotted them as of October 23rd, 1984.  38 Q   And not otherwise?  39 A   No.  40 Q   And that, I take it, was not your decision, but simply  41 something you were instructed to do?  42 A   That's correct.  43 Q   Was the instruction to plot them earlier ever revoked  44 or was it ever further discussed?  45 A   Yes, it was discussed.  And, I believe, it was  46 discussed for sure, and I believe it was agreed that  47 because of the situation, because we essentially had 19417  R.G. Harding (for Province)  Cross-exam by Mr. Adams  1  2  3  Q  4  5  6  A  7  Q  8  A  9  Q  10  11  12  A  13  Q  14  A  15  Q  16  17  18  A  19  20  Q  21  A  22  Q  23  A  24  Q  25  26  27  28  MR.  PLANT  29  MR.  ADAMS  30  31  32  33  MR.  PLANT  34  35  36  37  MR.  ADAMS  38  39  40  41  42  MR.  PLANT  43  44  45  MR.  ADAMS  46  Q  47  no records for that time that we wouldn't worry about  it.  And I take it you're not in a position today to  explain what the status of forest tenures was even as  of 1912 when the ministry was first in business?  Me personally?  Yes.  No.  Now, you say that you did plot tenures as of October,  1984.  Is that the effective date of the maps, the  plastic overlay series?  Yes.  Those tenures were plotted as of October, 1984?  Yes.  Who is Mr. Brian Rendell?  If it helps, he's referred  to in paragraph 2, and some other paragraphs of your  affidavit.  Paragraph 5.  He's a gentleman I talked to in my dealings with the  Attorney General, Ministry of Attorney General.  He's from the Ministry of the Attorney General?  I'm not sure of that.  He's not from your ministry?  No.  Now, you say in paragraph 2 of your affidavit that Mr.  Rendell told you that a series of maps particularized  in paragraphs A through F were prepared in the manner  described by Donald McKinnon in his affidavit?  :  No, that's not what he's deposing to there.  :  Well, I'm simply reading the affidavit of this  witness, my lord.  It says prepared in the manner  described by Donald I.A. McKinnon in his affidavit  sworn May 6 and filed --  :  Yes.  The first time you had the word were.  You're  not reading that clause.  The clause that reads with  the word prepared is a descriptive clause, not some  other kind of clause.  :  Well, my lord, frankly, I don't understand my  friend's difficulty.  I'm reading from this witness'  affidavit and asking him, first of all, to confirm  that's what he says, and I may have some questions  about that.  :  Well, that's fine.  I don't mean to object to that,  my lord.  My concern was that my friend wasn't reading  the affidavit correctly.  :  All right.  Perhaps you could look at paragraph 2 and read it to  yourself.  Now, was the manner of preparation of the 1941?  R.G. Harding (for Province)  Cross-exam by Mr. Adams  1 maps something that you knew about yourself or  2 something that Mr. Rendell told you about?  3 A   I may have known about it at the time, but I don't --  4 doesn't come back to me now.  5 Q   Are you aware of what the manner described by Mr.  6 McKinnon in May, 1987 was?  7 A   No, it doesn't.  I can't recollect it now.  This is  8 something I was told.  9 Q   Have you had any dealings with Mr. McKinnon in the  10 course of the preparation of these materials --  11 A   Yes.  12 Q   -- That are referred to?  13 A   Yes.  14 Q   Yes.  What was the nature of those dealings?  15 A  Meeting one or perhaps more meetings to discuss the  16 nature of the information.  17 Q   Now, I have a filed copy of Mr. McKinnon's May 6th,  18 1987 affidavit, and I just want to read you a  19 paragraph from that.  In paragraph 2 he says this:  20  21 "Under my supervision and direction  22 draftspersons and land surveyors have prepared  23 and caused to be prepared 12 sets of the  24 following maps based on maps and information  25 provided to me by employees of the defendant,  26 Her Majesty the Queen in Right of the Province  27 of British Columbia."  28  29 And there follows in that paragraph a list of  30 maps, and they include maps 18 through 23 displaying  31 apparently timber supply areas, historic sites,  32 provincial forests, public sustained yield units, tree  33 farm licenses and forest chart areas.  What I'm a  34 little uncertain of is the relationship between that  35 statement about the preparation of these overlay maps  36 and your statement in your affidavit and elsewhere  37 about the manner and preparation.  Maybe you could  38 just explain the process by which these plastic  39 overlay maps were created so far as you have knowledge  4 0 of them?  41 A  All right.  In 1986 — early in 1986 Bill Clifford and  42 his people went to our records, our mapping records  43 and our file records, determined which tenures were in  44 effect as of that date, October 23rd, '84, and in  45 doing so had to toss out ones that had been on record,  46 but had been deleted prior to that date, and had to  47 toss out ones that were -- came into effect after that 19419  R.G. Harding (for Province)  Cross-exam by Mr. Adams  1 date.  So essentially he took a snapshot of our  2 records as of October 23rd, 1984, put that information  3 on maps, and got the -- and went into the files and  4 recorded the file information in those booklets.  And  5 then I believe Mr. McKinnon was given copies of that  6 information and he did whatever he did with it.  7 Q   And you say that the actual plastic overlay maps that  8 are in front of the court today were prepared by whom;  9 by your ministry or by Public Works?  10 A   By our people.  We did the original.  Public Works may  11 have duplicated them.  I can't remember.  I believe we  12 did the original.  It's quite a long time ago now.  I  13 believe we only did one set.  14 Q   And did you have any part in passing those on to Mr.  15 McKinnon?  16 A   Yes.  17 Q   What was that?  18 A   Just proving that they were the information required  19 according to the parameters given.  2 0 Q   What was your understanding of what Mr. McKinnon was  21 to do with them?  22 A   I can remember discussing it with him, and I can  23 remember someone from his office coming to -- to talk  24 about it, but I can't -- I can't honestly remember  25 what he was going to do with it.  My assumption is he  26 was going to duplicate them, but I'm not sure at this  27 point.  I just can't recollect.  28 Q   But, in any case, your evidence is that the material  29 we have in front of us on those plastic overlays today  30 came out of your --  31 A   That's correct.  32 Q   Your ministry, the actual document?  33 A   Yes.  34 Q   Okay.  Now, you referred a moment ago, and you refer  35 in the certificates which are exhibits to your  36 affidavit, to the parameters requested and set.  And  37 the certificates go on to say "By N. Prelypchan".  38 What were those parameters?  39 A  Well, the date of October 23rd, 1984 was the primary  40 perimeter.  Our records as of that date would be  41 mapped and put in tabular form.  Actually the request  42 for tabular form came later.  The original request was  43 for map information as of that date.  44 Q   And was Mr. Prelypchan also the source of the  45 boundaries of the land claim area that are  46 superimposed on the base map?  47 A   Yes. 19420  R.G. Harding (for Province)  Cross-exam by Mr. Adams  1 Q   And you've said with reference to paragraph 4 of your  2 affidavit that you supervised the preparation of  3 certain booklets which we have today as these gray  4 bound booklets; is that correct?  5 A   Yes.  6 Q   And who actually did the preparation of those  7 booklets?  8 A   Bill Clifford did most of the work on that.  9 Q   And what was the nature and extent of your supervision  10 of him?  11 A   Essentially just day-to-day discussions as to format  12 and content and final review.  13 Q   And was he responsible or were you responsible for  14 choosing the material that went into them?  15 A  We -- we both had an understanding of what information  16 was required, and then it was up to him to dig that  17 information out.  18 Q   And when you say he had to dig that out he dug it out  19 of ministry files?  20 A   Yes.  21 Q   And do I take it that when you look at an example of  22 the overlays, this is quadrant six, and for example it  23 has an orange line on it that is identified on the map  24 as Collins Overland Telegraph Trail, that that  25 reflects information on file in the ministry?  26 A   Yes.  27 Q   And are you able to say what information on file in  28 the ministry supports that particular designation,  29 that depiction of the Collins Overland Telegraph  30 Trail?  31 A   I'm not sure what you mean there.  32 Q   Well, what I have on this quadrant six is an orange  33 line on the map.  Can you see that from where you're  34 sitting?  Right here.  35 A   Yes.  36 Q   And it's identified in the key as overlay seven  37 historic trails.  My question is what information on  38 file in the ministry enabled someone to plot that line  39 on that map?  40 A   I'm not sure about that.  It may have been on the base  41 map originally.  I'm not sure if that is covered by  42 tenure under the Forest Act or whether it's covered by  43 tenure under the Land Act.  It's probably under the  44 Land Act, in which case the information was either  45 already on the base map or it was given to us.  46 Q   And you don't know which of those, if either?  47 A   No.  It would be one or the other. 19421  R.G. Harding (for Province)  Cross-exam by Mr. Adams  1  Q  2  3  4  5  A  6  Q  7  8  A  9  Q  10  A  11  12  Q  13  A  14  Q  15  16  A  17  18  Q  19  20  21  A  22  Q  23  24  25  26  27  A  28  29  MR.  ADAMS  30  31  MR.  PLANT  32  33  MR.  ADAMS  34  Q  35  36  37  38  A  39  Q  40  41  A  42  43  44  45  Q  46  MR.  PLANT  47  MR.  ADAMS  In any case, it's so, isn't it, that your affidavit  does not refer to any supporting documentation for the  trails and historic sites that appear on overlay  seven?  Yes.  And I take it further then that you have no way of  knowing whether that's accurately depicted or not?  Whether the trail is accurately depicted?  Yes.  Oh, I think -- do I have a way of knowing right this  very minute?  Yes.  No.  And you didn't have a way of knowing when you swore  your affidavit?  No.  I didn't double-check with the -- with the map to  see if it was in fact along the same lines.  And you didn't know that either when you signed the  certificates that are attached as exhibits to your  affidavit?  I guess that's right.  Now, at least some of the key items for historic sites  say -- some say historic trails, some say historic  sites.  And on my examination of the maps, and perhaps  you can confirm this, there is nothing other than  trails depicted on them?  I don't recollect whether there's anything other than  trails or not.  :  My friend suggests that no -- my lord, I'm happy to  be corrected.  :  I retract that statement.  I thought Fort Stager was  on the map and I don't see it.  Now, I think you had mentioned earlier answering Mr.  Plant's questions that historic sites at least insofar  as they're in provincial forests are of interest to  your ministry?  Yes.  Okay.  How do those historic sites come to be  designated?  If they are covered by a tenure under the Forest Act  they are -- that's -- we issue whatever -- tenure  normally has a special use permit.  Once that's issued  that's transferred on to our maps and records.  Now --  :  I'm not sure he was finished.  :  That's fine. 19422  R.G. Harding (for Province)  Cross-exam by Mr. Adams  1  Q  2  A  3  Q  4  5  6  7  A  8  9  10  11  Q  12  A  13  THE  COURT  14  15  A  16  MR.  ADAMS  17  18  THE  COURT  19  MR.  ADAMS  20  THE  COURT  21  MR.  ADAMS  22  Q  23  24  25  26  A  27  Q  28  29  30  A  31  Q  32  33  34  A  35  Q  36  37  A  38  39  40  Q  41  A  42  Q  43  44  45  A  46  47  Q  If you have more to say please go ahead.  Maybe you want to reword the question.  I just wanted to start back one step further.  You  said if they're covered by tenure under the Forest  Act.  What I was after is how do they get to be  covered by tenure under the Forest Act?  Oh, requests or applications are made by a group.  It  could be another agency, it could be a society, it  could be any number of sources making application or  suggesting that areas be designated as heritage sites.  Are heritage sites the same as historic sites?  Yes.  For all intents and purposes.  Isn't the only one on this map the Collins Overland  Telegraph Trail?  It's the only one I see.  It's the only one I remember.  I think the Yukon Telegraph Trail and what are  identified as Indian grease trails are also marked.  I'm just looking at this first one.  Yes.  It may be on another quadrant.  All right.  Thank you.  And to your knowledge are there any other historic or  heritage sites which are covered by tenures under the  Forest Act within the land claims territory that are  not shown on these maps?  Give me that question again?  Apart from the trails that are shown are there within  the land claim area other sites, historic or heritage  sites, which are covered by tenures, forest tenures?  I -- I -- not to my knowledge.  What about archeological sites?  First of all, are  archeological sites within the category of heritage or  historic sites?  Yes.  And you're not aware of any such sites within the land  claim territory?  I'm not familiar enough with the area to be able to  say.  You're talking about sites that are there, but  aren't officially identified?  Well, or that are.  I still can't -- can't say.  But I understand you to say that sometimes in some  areas archeological sites are identified and are  covered by forest tenures; is that correct?  Normally not by forest tenures.  Normally they're  covered by map notations.  And what does a map notation consist of? 19423  R.G. Harding (for Province)  Cross-exam by Mr. Adams  1 A   It's a line drawn on a map bounding the area which  2 allows us to recognize it as there in the statusing  3 process to ensure that provision is made for  4 protection, or at least consideration before the land  5 is alienated for other uses.  6 Q   Okay.  I wonder if I could ask you to look at quadrant  7 three.  I'll just bring it over and show it to you.  8 And that has an orange line on it, and beside it the  9 notation "Indian Grease Trail Nass River to Kuldo,  10 Kispiox and Kitwanga" and then a number.  Are you able  11 to tell me what that number means?  12 A   I believe that's the Crown land file number.  13 Q   And the Crown land file that corresponds to that  14 number is not in any of the supporting documentation  15 that you identify in your affidavit?  16 A   No, I guess not.  17 Q   Do you know either from looking at the map or  18 otherwise anything about how that grease trail came to  19 be designated as an historic trail?  2 0 A   No, I don't know.  21 Q   Do you know anything about that grease trail at all?  22 A  Very, very little.  Just general knowledge.  And not  23 in that particular area.  Farther south.  24 Q   Let me ask you, if you would, to look at paragraph 13  25 on page five of your affidavit.  And there you refer  26 to one of Mr. Clifford's certificates, an example of  27 which we saw earlier this morning.  And you confirm in  28 paragraph 13 the copies -- that the entries are made  29 in the usual and ordinary course of the ministry's  30 business, and such document -- I take it there should  31 be an S there -- were not created for the purposes of  32 this litigation; is that correct?  33 A   That's correct.  34 Q   Okay.  When I look at Mr. Clifford's certificate in  35 Exhibit 53B, which is the book that is labelled "Map  36 23" -- maybe I'll just show that to you.  This is map  37 23 and it's Exhibit 53B.  He says there -- he  38 certifies there that the contents of part C are true  39 copies of documents kept on record, et cetera.  4 0 A  M'hm.  41 Q   Okay.  And when I go to tab C under tab 1 the first  42 document I see is something headed "Chart Information  43 Gitksan Land Claim"?  44 A  M'hm.  45 Q   You'd agree with me that that document, at least, was  46 created for the purposes of the litigation?  47 A   That particular page, yes.  I guess it was, yes. 19424  R.G. Harding (for Province)  Cross-exam by Mr. Adams  1 Q   Yes.  And to that extent, at least, paragraph 13 of  2 your affidavit is in error, is it not?  3 A  Well, I interpret it to mean that the information  4 itself was not prepared other than in the normal  5 ministry business.  Obviously the new page that the  6 information is on was prepared for that purpose,  7 however, the information in it was not.  8 Q   Yes.  And that would be true, would it not also, of  9 the first page of tab 2, which is a similar document,  10 and tab 3 and tab 4?  11 A   Yeah.  The information was taken out of our day-to-day  12 records and put on this paper, that's correct.  13 Q   Okay.  Now, what was it that enabled you to be able to  14 present the information in that fashion?  That is, how  15 did you go about relating the information as to  16 tenures and licenses and numbers and the holders of  17 licenses to the land claim?  18 A   Relating it to the land claim?  19 Q   Yes.  That is, you've said this information except for  20 the heading on this page was part of the records of  21 the ministry --  22 A   Right.  23 Q   -- Independent of the land claim.  My question was how  24 did you get them together?  How did you know which  25 records to put under a heading, in this case, "Chart  26 Information Gitksan Land Claim"?  27 A  We went to the external boundary of the claim area and  28 then went to our records and everything that was in  29 place as of the particular date required was recorded  30 and transposed on to those pages.  31 THE COURT:  Is it convenient to take the morning adjournment,  32 Mr. Adams?  33 MR. ADAMS:  Yes, my lord.  34 THE COURT:  All right.  Thank you.  35 THE REGISTRAR:  Order in court.  Court stands adjourned for a  36 short recess.  37  3 8 (PROCEEDINGS ADJOURNED)  39  40 I hereby certify the foregoing to be  41 a true and accurate transcript of the  42 proceedings herein to the best of my  43 skill and ability.  44  45 Peri McHale, Official Reporter  4 6 UNITED REPORTING SERVICE LTD.  47 19425  R. G. Harding (for Province)  Cross-exam by Mr. Adams  Discussion  :  Mr. Adams, could I just ask the purpose, of trying  to keep in context, surely it isn't disputed by the  plaintiffs that the province has intruded  substantially into the regulation of this territory?  :  That I think depends, my lord, on what you  understand by regulation of the territory.  :  I mean by that that they have issued all these  licences, they have made these grants, for one purpose  or another, that they have done surveys and  established roads and built them and all those sorts  of things, surely that's not in issue?  :  No, in fact to some degree it's complained of.  :  Yes.  What is the purpose of this exercise?  The  plaintiffs want to put before me, as I understand it,  that the province has undertaken all these activities.  It doesn't seem to me to be tenable to suggest  otherwise.  And so I am trying to ascertain, for the  purpose of understanding, any of the nuances that  might come out of the evidence, why there is this need  to adduce all this evidence in, what I might  euphemistically call, long form.  :  I thought I was being so quick.  : Well, you are, commendably, but we are still facing  several days of this and I am at a loss to understand  what it's all about.  :  My lord, first of all, I doubt that we are facing  several days of it.  Our expectation is that this is  the longest of eight witnesses or whatever there will  be.  :  Why are we having eight witnesses?  : The province in its wisdom chose eight witnesses to  attest to these various documents.  :  But there has been investigation of this issue over  the course of the trial since it first came up in, I  think it was in May of 1987.  I am -- I guess I am  complaining that there hasn't been some accomodation  reached that would make evidence of this kind  unnecessary.  Surely the question of whether a map or  a document is right or wrong or correct or inaccurate  or something like that, is of no consequence, surely.  No legal consequence.  :  I can't speak, my lord, as to why the province  thought it was necessary to prove these things in any  fashion in this much detail, but that is what they  have set out to do and I have two submissions.  The  first is that that having been decided upon by the  provincial defendant, the plaintiffs are entitled to  1  THE  COURT  2  3  4  5  MR.  ADAMS  6  7  THE  COURT  8  9  10  11  12  MR.  ADAMS  13  THE  COURT  14  15  16  17  18  19  20  21  22  MR.  ADAMS  23  THE  COURT  24  25  26  MR.  ADAMS  27  28  29  30  THE  COURT  31  MR.  ADAMS  32  33  THE  COURT  34  35  36  37  38  39  40  41  42  MR.  ADAMS  43  44  45  46  47 19426  R. G. Harding (for Province)  Cross-exam by Mr. Adams  Discussion  1 test that evidence; and, secondly, that witnesses for  2 that purpose, having been called, the plaintiffs are  3 entitled to cross-examine them at large on the case.  4 THE COURT:  I don't think there is any doubt about both of those  5 propositions, the only question is the wisdom of it at  6 all.  Seems to me the plaintiffs decided in their  7 wisdom that they were going to put in the evidence of  8 a lot of lay witnesses and, to a lesser extent, the  9 federal Attorney-General challenged some of it, and  10 explored it, and that sort of thing, and now the  11 province wants to say, well, here is the extent that  12 we want to establish for the regulation or intrusion  13 or whatever you want to call it, that they have  14 embarked upon within the territory and while you  15 certainly have every right to challenge it, I am not  16 sure I understand the nature of the challenge.  Surely  17 you're north saying that they haven't been issuing all  18 these licences and supervising logging to the extent  19 that logging is supervised, you are not challenging  20 that these roads have been dedicated and built and  21 that sort of thing, which is the extent the plaintiffs  22 want to prove, and as I say I think every one of the  23 parties have the right to do this, but I simply don't  24 understand why.  If the plaintiffs want to put this  25 material before me, it seems to me it's going to come  26 down to some very, very severe summarizing at the end  27 of the day on both sides.  2 8    MR. ADAMS:  Yes.  29 THE COURT:  And the consequences that flow from it, the details  30 that must be significant in the final resolution of  31 this case.  But I wanted to bring this to your  32 attention, not for the purpose of ruling you can't  33 proceed, I think you are entitled to, certainly up to  34 this point I wouldn't stop you, but I want you to  35 understand that I don't really have a grasp of what  36 the purpose of it all is.  I know why the plaintiffs  37 want to put the material before me, so that they can  38 extract out of it some arguments, and I am sure that  39 when those arguments are made you will be answering  40 them not on the basis that there is a document that is  41 missing a notation or there is a document that  42 mis-describes a stream or river or internal boundary  43 or some thing, but on broad principle.  Therefore, I  44 am not sure why this material isn't in some way being  45 admitted and put away until argument.  But that's just  4 6 a question that I have in my mind that I thought I  47 should share with you. 19427  R. G. Harding (for Province)  Cross-exam by Mr. Adams  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. ADAMS  THE COURT  I am not really in a position to respond further  than I have, my lord.  It may be that there are  arguments to be made at the end of the day on both the  significance of the creation of all these kinds of  tenures and maps.  Indeed, but I am having some trouble believing that  it's going to be contended that they haven't been  created, that these things haven't been done.  But you  do what you think you have to do and I will sit her  and listen as I have to listen.  ROBERT GERALD HARDING, Resumed:  CROSS-EXAMINATION BY MR. ADAMS:  (Continued)  MR.  ADAMS  Q  A  Q  A  Q  MR. PLANT  THE COURT  MR. PLANT  THE COURT  MR. ADAMS  Q  A  Q  Mr. Harding, I wonder if you could look at paragraph  14 of your affidavit on page five, please.  Do you  have that?  Yes.  And there you say:  "Confirm further that the maps  listed in paragraph two..."  And when I see paragraph  two I see a list of the overlays, one through five and  seven?  Yes.  Correct   "... accurately depict the various forest  service tenures and information that the maps purport  to depict as derived from the sources of information  described."  And the sources of information described are the  documents contained in the gray books; is that  correct?  My friend hasn't read the paragraph correctly,  but —  You mean he left out of the last four words.  Well, there is an interpolation at the end of the  first line, which my friend omitted to read the  interpolation.  "Subject to limitations of scale and format."  Yes.  And nothing in the question will turn on the  interpolation, but I apologize, it's there.  My question is simply this, Mr. Harding, did you  compare the material contained in the gray books,  including the maps, with the plastic overlays?  Yes, I have.  You have gone through each of the many maps in those 1942?  R. G. Harding (for Province)  Cross-exam by Mr. Adams  1 gray books and compared them with the overlays?  2 A   Not in total.  3 Q   Not in total?  4 A   No.  5 Q   How did you sample them?  6 A   Just on an ad hoc basis.  7 Q   And are you able to say what proportion of the actual  8 documents you might have compared with the overlays?  9 A   No, it would just be a pure guess.  I am not sure.  10 Q   So is it correct to say that to the extent that you  11 didn't make that comparison, it's not correct to  12 confirm, as you do in paragraph 14, that they are  13 accurate depictions, because you don't know?  14 A  Well, I am relying to some extent on the -- on Mr.  15 Clifford and the people who put it together, that's  16 true.  17 Q   And as far as you understand Mr. Clifford in turn is  18 relying on other people?  19 A   He checked everything, I believe.  20 Q   Yes?  21 A   Yes.  22 Q   Now, I wonder if you could explain something for me,  23 and that is on my understanding of these things, there  24 is a progression from at least the stage that an area  25 is designated as Crown land up to the point where  26 timber is actually harvested on it, and I wonder,  27 first of all, if that's correct and if it is, I will  28 go on from there.  2 9 A   Could you give me that one more time?  30 Q   Yes.  My understanding is that on Crown land there is  31 a progression of steps, some of them identified as  32 tenure and some of them may be called something else,  33 which gradually leads to, first permission to cut and  34 then actual logging on land so, for example, at some  35 point an area is designated as a provincial forest and  36 at some point after that, and I may be skipping  37 stages, it's chartered and then at some point after  38 that there is a cutting permit and then after that  39 there is logging?  40 A   It depends on the tenure and it doesn't have to be  41 provincial forest.  It could be non-provincial forest  42 or provincial forest.  But this process you are  43 looking for depends on the kind of tenure.  So if you  44 want to pick a specific tenure, I can tell you what  45 the process is.  46 Q   All right.  Let's do that for -- you describe timber  47 supply areas as a form of tenure? 19429  R. G. Harding (for Province)  Cross-exam by Mr. Adams  1 A   No.  2 Q   All right.  A tree farm licence is a form of tenure?  3 A   Yes.  4 Q   Could you explain the process for a tree farm licence?  5 A  A tree farm licence is either applied for or the  6 minister on his own initiative invites applications  7 for a tree farm licence.  It's advertised, the  8 applications are evaluated, there is a public hearing,  9 the decision on the licence is made, if the licence is  10 awarded, a manageable working plan has to be prepared  11 and approved, a licence is then issued, a five year  12 development plan has to be prepared and approved,  13 site -- what I call pre-harvest silviculture  14 descriptions have to be prepared and approved from  15 each cutting area under the licence and then finally,  16 when all that is done, cutting authority is issued in  17 the form of cutting permits.  The statusing of the  18 tree farm licence area is a standard part of the  19 process early on before the applications are even  20 considered.  21 Q   Okay.  How does a timber supply area come to be  22 designated?  23 A   It is designated by the minister.  24 Q   And there are a variety of tenures, are there, that  25 might be within a timber supply area?  26 A   Yes.  27 Q   Do all of those tenures, as they lead towards actual  28 logging, follow, if not the same process, a similar  29 process to the one that you have described here, that  30 is there is a licence requirement, there has to be a  31 development plan and eventually there are cutting  32 permits?  33 A   They don't all require development plans and they  34 don't all require cutting permits.  35 Q   Okay.  Where are those not required?  36 A   Not required in the timber sale licence, minor, and of  37 course they are not required in the minor in the  38 miscellaneous tenures.  39 Q   Okay.  Would it be fair to say that the vast majority  40 of the territory covered by the plastic overlays is  41 subject to the process that you have described?  42 A   Not tree farm licences, but forest licences which  43 basically are similar in process.  44 Q   Yes.  And is the establishment of a chart area a  45 feature of the general process?  46 A   Of forest licences and timber sale licences major but  47 not tree farm licences. 19430  R. G. Harding (for Province)  Cross-exam by Mr. Adams  1 Q   And when a chart area has been established -- perhaps  2 you could first explain what that is, what's a chart  3 area?  4 A  When a forest licence or a timber sale licence major  5 is issued, it's authority to harvest a certain amount  6 of timber annually.  But it is, when it's issued, it  7 applies to the entire supply area, which is a very  8 large area.  So within that a company is requested to  9 identify its primary area of interest for operations  10 and they do that by applying for a chart area, which  11 is just an administrative boundary around the area of  12 interest.  That comes into the ministry and we status  13 it to make sure that it's available for harvesting and  14 that there are no conflicts or, if there are, we  15 ensure that there are measures put into any cutting  16 authority to take those potential conflicts into  17 consideration.  So it's essentially an area that's  18 cleared and statused to allow the holder of a major  19 forest licence or timber sale licence major or forest  20 licence to make application for a cutting permit.  21 Q   And I am going to attempt to summarize that by asking  22 you to agree that it is -- a chart area is an  23 administrative boundary around an area issued to a  24 forest company?  25 A   Yes.  26 Q   And I take it that I can't tell by looking at the  27 chart areas depicted on the plastic overlays whether  28 or where there has been actual logging activity?  29 A   That's correct.  30 Q   Can you also confirm for me that there is no  31 information on the maps or in the source documents  32 that would tell me for what areas cutting permits have  33 been issued?  34 A   That's correct.  In some cases, in the case of timber  35 sale licences minor, they are in fact the cutting  36 authority.  They are the same as a cutting permit  37 under a major licence.  So to that extent where you  38 see the boundaries of a timber sale licence minor,  39 that is the cutting authority.  You can't tell whether  40 it's been logged or not, but that is the area of  41 cutting authority.  42 Q   And that's, generally speaking, permission to log, is  43 it?  44 A   That is -- that's correct, yes.  It's subject to a  45 logging plan.  46 Q   That is even for TSL minor, that is cutting authority  47 but there still has to be a logging plan; is that 19431  R. G. Harding (for Province)  Cross-exam by Mr. Adams  1  2  A  3  Q  4  5  6  A  7  Q  8  9  10  11  12  13  14  A  15  16  Q  17  A  18  Q  19  20  21  MR. PLANT  22  MR. ADAMS  23  24  THE COURT  25  MR. ADAMS  26  Q  27  A  28  Q  29  30  A  31  Q  32  33  34  35  36  37  38  39  40  41  42  43  44  A  45  46  47  Q  correct?  Yes.  And I can't tell from the plastic overlays or from the  document books where there are logging plans in  effect?  That's true.  Now, in the materials you may recall there are copies  of tree farm licences 1 and 41, I believe, and I don't  want to restrict my question to that, but with those  as examples, I take it that you're not in a position  to say, from your own knowledge, to what extent the  terms of those licences and other licences issued by  your ministry are adhered to by the licensees?  To the extent that the terms of the licences are  adhered to?  Yes.  No, I can't comment on that.  Now, I'd like to ask you to look at Exhibit 52B, which  is one of the gray books, and I will bring it to you.  My lord, I am at tab C --  :  This is the Tree Farm Licences book?  :  Yes.  It's designated map 22.  And at tab C and sub  tab 2 at page 105.  :  125?  :  105, my lord.  Do you have that?  Hm-hmm.  I want to draw your attention to clause 5.04 and this  is Tree Farm Licence 41?  Yes.  Okay.  And there it says:  "Where the regional manager  considers that timber harvesting or related operations  that are proposed to be carried out under a cutting  permit or road permit are likely to cause damage to  the improvements or chattels of the lawful occupier or  lawful user of Crown land, the licensee may be  required in the cutting permit or road permit, (a) to  prevent the damage from occurring; (b) to pay  reasonable compensation to the user or occupier as to  damage that occurs."  There is a further clause that isn't material to my  question.  What I want to ask you, first of all, is  that a standard clause in a Tree Farm Licence?  It's a standard clause in any of our agreements where  there is a distinct possibility that damage to some  value could occur.  And is that clause inserted as a matter of ministry 19432  R. G. Harding (for Province)  Cross-exam by Mr. Adams  1  2  A  3  4  5  6  Q  7  8  9  10  A  11  Q  12  13  14  15  16  A  17  18  Q  19  20  21  22  23  MR.  PLANT  24  25  MR.  ADAMS  26  27  MR.  PLANT  28  29  30  THE  COURT  31  32  33  34  MR.  PLANT  35  36  37  38  39  THE  COURT  40  41  A  42  43  44  45  THE  COURT  46  A  47  THE  COURT  policy?  Yes, it is.  It's normally -- yes, it is.  It -- quite  often it goes in the cutting permit document as  opposed to the licensing document and a deposit is  required to cover that.  And I think what follows is that the requirement for  the payment of the deposit and if the licensee doesn't  do it, the Crown does and deducts it from the deposit;  is that correct?  Yes.  Now, given that that is inserted as a matter of  ministry policy, I wonder if you could explain for me  just what ministry policy guides that?  Why is it that  the licences require the licensees to compensate other  occupiers or users?  Give me that one again?  I was just reading something  here.  You have said that that's a standard clause, not just  in tree farm licences but in other tenures, and that  it's put there as a matter of ministry policy, and my  question simply is what's the ministry policy that  informs that?  :  The question specifically is there a ministry policy  that informs the insertion of that clause?  :  That's that has been answered.  The question is,  what's the policy?  :  The policy, what's the motivation behind the policy,  and I don't see the relevance of that information, my  lord.  :  Well, it seems to me we are becoming somewhat  semantical.  You are saying what is the policy, he is  saying it's standard, we put it in all the time, the  policy, I would think --  :  If there is a statement of the policy and the  witness is aware of it, I don't have any trouble with  that.  If the question is what lies behind that, why  does the ministry care about these things, I don't see  how that has any part to play in this litigation.  :  Well, is it common ground that the policy is to put  it in?  Is that so?  If there are improvements that could be damaged as a  result of the logging operation, it's standard  procedure to put a clause like this in the cutting  permit document normally.  :  Improvements or chattels?  Yes.  :  Of the lawful occupier.  Where you do you want to go 19433  R. G. Harding (for Province)  Cross-exam by Mr. Adams  1  2  MR.  ADAMS  3  THE  COURT  4  A  5  MR.  PLANT  6  7  8  MR.  ADAMS  9  10  THE  COURT  11  12  13  14  MR.  ADAMS  15  16  THE  COURT  17  A  18  19  20  MR.  ADAMS  21  Q  22  23  A  24  25  26  Q  27  28  29  A  30  31  32  33  34  35  36  37  38  39  40  41  Q  42  43  A  44  45  Q  46  47  now, Mr. Adams?  :  My further question is why is that the policy?  :  Why do you have that policy?  It's to ensure that, I suppose --  :  I think it maybe should be established whether or  not Mr. Harding knows these things.  Mr. Harding may  participate in the making of policy, he may know.  :  Well, he has testified that he participates in the  policy development and administration.  :  Of course policy in this sense can be a euphemism  for a practice, can't it?  Sometimes we do things over  and over again that it becomes elevated into a policy,  but really all we are doing is repeating ourselves.  :  If that's the answer, that's the answer.  I am  interested in what the witness can tell us about it.  :  All right.  I think it's, as you say, your lordship, I don't think  you would find it probably in written policy but it is  a standard practice that the ministry adheres to.  And you supposed it was to ensure something, and what  is that?  My assumption would be that it is to ensure that the  money is there available, the additional deposit is  available for use should the damage occur.  And in your capacity as manager of woodlot licences  and Indian affairs, have you had occasion to apply  that policy to native Indians?  You see, in my position as woodlot licence manager and  native affairs, I wasn't in the routine day-to-day  issuance of documents, woodlot licences only, this  wasn't a standard clause.  In fact this contract was  issued in 1980 and I believe now it's not a standard  clause in the licence document for new TFLs, I believe  this kind of thing is handled in the cutting permit  document itself.  But to respond to your question, I  was out of the main stream of issuance and disposition  of timber tenures so I really didn't get involved in  the content of the various licences with respect to  natives or non-natives.  Okay.  Are you aware of whether the policy is or was  applied to trapping cabins?  Yes, I believe it was.  If they were legally -- if  they were -- if they were legitimate.  Does the ministry have a policy that you're aware of  as far as its dealings with such cabins where they are  not considered to be legitimate? 19434  R. G. Harding (for Province)  Cross-exam by Mr. Adams  1  A  2  Q  3  4  5  6  7  8  A  9  10  11  Q  12  13  14  A  15  16  Q  17  18  19  20  21  22  23  A  24  25  26  27  Q  28  MR. PLANT  29  MR. ADAMS  30  Q  31  A  32  Q  33  34  A  35  Q  36  37  A  38  39  Q  40  A  41  42  43  44  45  Q  46  47  Sorry, say that one again?  Your previous answer was that there -- the  compensation policy would apply to trappers' cabins  that were considered to be legitimate.  My question,  which may depend on your view of what's legitimate,  was there a policy in dealing with cabins which were  considered to be not legitimate?  I think if a cabin, for example, was built in trespass  on Crown lands, there would be some question as to  whether we would apply that clause.  Are you aware of instances in which cabins that the  ministry considered built in trespass on Crown lands  were destroyed by the ministry or under its direction?  No, I don't recollect any.  It may have happened but I  don't recollect any.  Okay.  I wanted to show you some documents, and I  don't have a lot to say about them, I just want to  know if you can identify them for me.  Now, I wonder if you can first confirm my  understanding which is that certainly the bulk of the  land claims area is included in what was, at least in  1944 and earlier, the Prince Rupert Forest District?  You know, before I could confirm that, really confirm  it, I would have to see the two on a map.  You know,  off the top of my head I would be reluctant to confirm  that.  Forest districts aren't depicted on the overlay maps?  :  In 1944, no, they are not.  Or at any time?  At any time?  Yes.  That is, are forest districts depicted on the  overlays?  I believe they are, unless they are on the base map.  Maybe what I can do is show you the base map and see  if you can point me to the forest district boundary.  No, they aren't on there.  They conform closely, I  believe, with the TSA boundaries.  So if I take together the areas bounded in green --  That should be fairly close to districts.  But, you  know, I -- before I really confirmed that for sure, I  would prefer to get a map of the districts and, you  know, do it that way.  And there is no way I could do  it for 1944.  I understand that.  Are you aware of any change since  that time in the boundaries of the Prince Rupert  Forest District? 19435  R. G. Harding (for Province)  Cross-exam by Mr. Adams  1  A  2  Q  3  A  4  5  Q  6  7  8  9  A  10  11  Q  12  13  14  15  16  17  A  18  MR.  PLANT  19  20  21  22  23  24  25  26  MR.  ADAMS  27  28  29  30  31  32  THE  COURT  33  A  34  MR.  ADAMS  35  Q  36  37  38  A  39  40  Q  41  42  A  43  44  MR.  ADAMS  45  46  47  Since 1944?  Yes.  I think there have been some but, you know, I am not  really conversant with them.  All I am suggesting to you is that, broadly speaking,  what is now the land claims territory is within the  Prince Rupert Interior Forest District; is that a fair  statement?  You know, I really don't have a good picture of that  right now.  It would be easy enough to confirm.  Okay.  Are you able to confirm for me that the  document I have shown you, which is entitled "Prince  Rupert Forest District, Annual Report, 1944  Operation", is an extract from a document kept by the  Ministry of Forests and produced by the Ministry of  Forests?  Well, I can't --  :  Perhaps he could -- I don't want to interrupt this  entertaining examination, but to ask this witness to  identify one page from a document that it could be ten  pages long, it could be 100, it's not an original,  just a photocopy, it's stapled to something which  purports to be a title page.  Obviously the question  is susceptible of answer but it's pretty thin  susceptibility, if I may say so.  :  My lord, first of all I am instructed that's what  this is; and, secondly, the witness has given some  fairly extensive evidence in documentry form about  photocopies of things that are said to be kept by the  Ministry of Forests.  And my question is simply  whether he is able to identify this as one of them.  :  He can answer that, if you can.  I really can't, you know.  I just can't confirm that.  You, in your 30 years with the Ministry of Forests,  have not had occasion to look at annual reports of  this kind?  Oh, yes.  Not this old, but, yeah.  The format has  totally changed now.  And you're not, I take it, able to identify this as  such a report from 1944?  I can't with any assuredness, quite honestly.  I mean,  it looks like it could be.  I would if I could.  :  My lord, I wonder if I could proceed in this way, I  would propose to provide my friends with copies of  these, and I have a series of these reports covering  1930 to 1944, and have them confirm, since the witness 19436  R. G. Harding (for Province)  Cross-exam by Mr. Adams  1  2  3  4  5  THE  COURT  6  7  MR.  PLANT  8  9  10  11  12  MR.  ADAMS  13  MR.  PLANT  14  15  16  17  18  19  20  21  THE  COURT  22  23  24  25  MR.  ADAMS  26  THE  COURT  27  28  MR.  ADAMS  29  30  31  THE  COURT  32  33  MR.  ADAMS  34  THE  COURT  35  MR.  ADAMS  36  Q  37  38  A  39  Q  40  A  41  Q  42  43  A  44  MR.  ADAMS  45  THE  COURT  46  47  MS.  RUSSE  indicates that this is something that he is in a  position to confirm, but not here and not today, if  they are accepted as genuine then they could go in.  I  don't have any questions from him arising out of them.  Yes, I think that's -- well, subject to what Mr.  Plant says.  If I understand my friend, he is saying that he is  going to be delivering me copies of these similar  documents and he is going to be asking that they be  tendered in some way or another, but not through  further examination?  Not through this witness.  Well, subject to my review of the documents, they  appear on the face of it could be over 30 years old  and within the terms of your lordship's ruling, I do  have a question I would like to take consultation  with, as to whether it's appropriate that my friend  prove his case at this point or not.  Other than that,  I don't think there is any problem with my friend's  request.  All right.  Do you want to mark it for  identification, Mr. Adams, or just want to put the  whole question aside and give your friends the  documents and ask them to confirm their authenticity?  I think I will proceed that way, my lord.  All right.  Thank you.  I am a little puzzled by the  fact that it isn't signed.  Some are and some aren't in the form they have been  made available to me.  I gather they came out of  ministry offices in that form.  All right.  There is wisdom in the old rule that the  court holds the originals.  I wouldn't like to see it in this case.  That would save us a lot of time.  Mr. Harding, do you know anything about what is called  the Kitwancool Territorial Reserve?  Very little.  Practically nothing.  Practically nothing?  Hm-hmm.  Do you know whether it's something that your ministry  keeps documents in connection with?  I don't know that.  :  Those are all my questions of this witness, my lord.  :  Thank you.  Ms. Russell, are you seeking leave to  cross-examine?  jL:  No, my lord, I have no questions. 19437  R. G. Harding (for Province)  Cross-exam by Mr. Adams  1  THE  COURT  2  MR.  PLANT  3  THE  COURT  4  5  6  7  MR.  PLANT  8  9  10  11  12  13  THE  COURT  14  MR.  PLANT  15  16  17  18  19  20  21  22  THE  COURT  23  24  MR.  PLANT  25  26  27  28  29  30  31  32  33  34  35  36  THE  COURT  37  MR.  PLANT  38  39  40  THE  COURT  41  MR.  PLANT  42  THE  COURT  43  44  45  46  47  Any re-examination, Mr. Plant.  I have no re-examination, my lord.  That you, Mr. Harding  (Witness aside)  What I would I like to do at this point, however, is  to tender the various documents that are referred to  in Mr. Harding's affidavit as exhibits proper.  I may  say, firstly, that during the morning adjournment we  obtained the original of Mr. Harding's affidavit and I  have provided that to madam registrar.  So you want the original out of the Exhibit 1125?  The affidavit to be Exhibit 1125, my lord.  As to  the balance of the requests, what I wanted to do is  tender all of this material and what that means in  practical terms is that since all of it already has  exhibit numbers, I am proposing that the "for  identification" aspect of the exhibit number be  removed and that the documents be tendered as exhibits  for all purposes.  What does that include?  Is there a compendium of  the numbers you are seeking to have marked?  Yes, in the index of the black binder of the  affidavits will be a reference to the exhibit numbers  in respect of the overlay that deals with timber  supply areas, which is overlay one of the six quadrant  map series, the map itself is Exhibit 48A, the source  documentation in three volumes is respectively,  Exhibits 48B, C and D.  As to map 19, the historic  sites and Collins Overland Telegraph Trail, that's  quadrant 7 on the quadrant series, and my notation on  the exhibit on this index is that that has been given  the Exhibit number 49A.  But that I believe to be  incorrect.  That should be Exhibit 49, simpliciter.  For identification?  And on your lordship's copies of the overlay series,  overlay seven is given the number, Exhibit 49.  The  next in sequence.  Is it 49 or 49 for identification now?  Currently 49 for identification.  Are you asking that all these numbers on the index  to this black binder, starting with 48A and ending on  the first page with 54A and going on the second page  from 24A to 46A, and on the third page down to 35 -- I  am sorry, down to 55C, be now marked as exhibits for  identification? 19438  R. G. Harding (for Province)  Cross-exam by Mr. Adams  1  MR.  PLANT  2  3  4  5  6  THE  COURT  7  8  MR.  PLANT  9  10  THE  COURT  11  MR.  PLANT  12  13  14  THE  COURT  15  MR.  PLANT  16  17  18  19  THE  COURT  20  MR.  PLANT  21  22  23  THE  COURT  24  MR.  ADAMS  25  26  27  28  29  30  31  32  33  34  35  36  THE  COURT  37  MR.  PLANT  38  39  40  41  42  43  44  45  46  47  :  No, I am only directing this request to the material  which is the subject matter of Mr. Harding's  affidavit, which would mean exhibit for identification  48A, B, C, D, 49, 50A. and 50B., 51A and 51B, 52A and  52B and 53A and 53B.  :  I think I am going to have to ask you to recite that  again, Mr. Plant.  :  I am trying to read from the index.  48A, B, C and  D.  :  Yes.  :  49, 50A and B, 51A, 51B, 52A, 52B, 53A, 53B, that  comprises the six quadrant series of maps of overlays  together with their supporting documentation.  :  All right.  :  Excuse me, with the exception of overlay six.  I am  sorry for that complication, my lord, overlay six is  concerned with grazing permits and there is a separate  affidavit for that.  :  Except --  :  As to overlay number six, which is Exhibit 54A for  identification, and the source documentation for that  map, which is Exhibit 54B for identification.  :  All right.  Thank you.  Mr. Adams?  :  My lord, in my submission the marking of these could  and should be deferred until you have heard the  pending argument on the admissibility of business or  government and public documents, which you recall is  left over from the trapline maps.  The arrangement, as  I recall, was that Mr. Grant was to advise my friends  by the end of this week whether he proposed to examine  further witnesses and the marking of those materials  was deferred until that argument was heard and, in my  submission, the same should be done in this case.  No  problem with marking the affidavit, which has been  done before.  :  The affidavit is already Exhibit 1125.  :  48A and B had been marked, my lord.  That is my  advice, my lord.  That is not, in my submission, a  tenable objection to the process at this time.  And I  am only going to summarize the last two-and-a-half  years of history in about two sentences.  Your  lordship made an order responding to our Notice of  Motion, the order was that we could prove this  material by affidavit provided that we provided for  our friends affiants of the custodians of the source  material and that we made the affiants of those  affidavits available for cross-examination.  That we 19439  R. G. Harding (for Province)  Cross-exam by Mr. Adams  1 have done in respect of this material which I have  2 described to your lordship, the material which is the  3 subject of Mr. Harding's affidavit, and that is all we  4 have to do.  And at that point, it's my submission  5 that the material goes in.  6 MR. ADAMS:  Well, my lord, all I am submitting is that rather  7 than have eight separate arguments about identical  8 kinds of materials as we go through the witnesses,  9 that we do this at the end of the series of witnesses  10 and since there is a further outstanding argument on  11 similar issues, we simply deal with them together as a  12 matter of convenience.  13 THE COURT:  All right.  Well, I think I will accede to Mr.  14 Adams' suggestion.  I am mystified by what's going on  15 here, I don't understand it, and rather that bog down  16 further, I think perhaps I better give myself the  17 opportunity to be better informed.  These things seem  18 to me to be so unnecessary to be proven this way.  I  19 don't understand why we are having all this trouble.  20 MR. PLANT:  If if I may say, my lord, if your lordship is  21 mystified, so am I.  Why doesn't my friend say what's  22 the problem with this stuff?  23 THE COURT:  Because I don't understand that, Mr. Plant —  24 MR. PLANT:  In order that I can take steps now, I have to take  25 steps now to clarify any problem there is.  There  26 isn't a problem, your lordship has made an order, made  27 that order in May or June of 1987, all that we have  28 done is complied with the terms of that order.  Your  29 lordship has, in pursuant of the terms of that order,  30 last week accepted that the trapline material is to be  31 marked.  My friend says that there is some other  32 argument out there in the wings about business  33 records.  Well, I don't know what that argument is and  34 I don't know what it has to do with this.  35 THE COURT:  Because of your good fortune in not being here last  36 week.  37 MR. PLANT:  It may well be.  I may have missed something that is  38 intricate to this and, if so, fair enough.  39 THE COURT:  I don't see any need to rush into marking them now,  40 there may be something that will be brought to my  41 attention that I don't see at the moment and I don't  42 think there is any magic about it.  The order was made  43 a long time ago as you have suggested, there seems to  44 have been compliance with the terms but your friends  45 want to deal with a number of these matters at once  46 and I see no harm in deferring that until every last  47 stone has been turned.  We will deal with them at the 19440  R. G. Harding (for Province)  Cross-exam by Mr. Adams  1 end, when you have finished what, it seems to me, to  2 be an unnecessary exercise.  But that may be  3 presumption on my part.  Let's carry on and see what  4 else we have to do.  5 MR. PLANT:  At this point, my lord, I would be calling the next  6 witness.  I wonder if it's appropriate that we defer  7 that.  8 THE COURT:  Yes, we will look forward to hearing that after  9 lunch.  10  11 (Proceedings adjourned for lunch)  12  13  14  15  16 I hereby certify the foregoing to be  17 a true and accurate transcript of the  18 proceedings herein to the best of my  19 skill and ability.  20  21  22  23  24  25 Wilf Roy  26 Official Reporter  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 19441  Proceedings  Cross-exam by Mr. Adams  1 (PROCEEDINGS RESUMED PURSUANT TO LUNCHEON RECESS)  2  3 THE COURT:  Mr. Plant.  4 MR. PLANT:  My lord, if I may.  Before we broke for lunch when I  5 tendered the forestry maps and supporting  6 documentation we had a discussion about my attempt to  7 do so.  I was in ignorance of what had transpired last  8 week, and that ignorance contributed to my own sense  9 of mystery as to what was going on.  I now find that  10 in reviewing the transcript for Thursday of last week,  11 which is volume 262 at page 19376 and 77 that Mr.  12 Willms after the evidence of Messrs. Steventon and  13 Marshall had been completed tendered both the trapline  14 map and the supporting document binder and Mr. Grant  15 had no objection to either being marked.  So in that  16 respect my sense of mystification has been alleviated,  17 but I continue to be in the dark as to exactly what  18 the reason is why we can't mark the forestry  19 information now.  20 However, the next item of business is the highways  21 map.  And I'm going to be calling William C. Bedford  22 in a minute, but if I could take your lordship firstly  23 through the material at tab 2 of the binder, the black  24 binder of affidavits, your lordship should find Mr.  25 Bedford's affidavit.  The exhibit numbers of the  26 material that he has referred to in his affidavit are  27 set out at the first page of the alienations  28 affidavits binder.  The highways map has a nominal  29 designation of map six.  It has been marked Exhibit  30 43A for Identification.  The source documentation,  31 which is one binder only, is Exhibit 43B.  I've asked  32 that the map -- or had the map put up there.  Perhaps  33 I could ask Madam Registrar to pass to your lordship  34 the booklet.  35 THE COURT:  Thank you.  36 MR. PLANT:  And in one respect, my lord, I would like to explain  37 how the map and the book work together.  And if I  38 could ask your lordship to turn to page 11, the page  39 numbered 11 at the top of the supporting  40 documentation, your lordship will see there a list of  41 roads and highways entitled "Key to Routes Shown on  42 Gitksan Land Claim Map".  Now, to give your lordship  43 an idea of what is involved here on map six or Exhibit  44 43A there are in addition to the coloured lines a  45 series of circles with numbers in them and the numbers  46 correspond to the numbers that your lordship has in  47 the two page list, pages 11 and 12 in the supporting 19442  Proceedings  Cross-exam by Mr.  Adams  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  THE  COURT  23  24  25  26  MR.  PLANT  27  THE  COURT  28  29  MR.  PLANT  30  31  32  33  34  35  36  37  38  THE  COURT  39  40  MR.  PLANT  41  42  THE  COURT  43  MR.  PLANT  44  45  THE  COURT  46  47  MR.  PLANT  documentation.  The preceding pages in the booklet  refer to the source documentation from which this map  was prepared.  Now, there is -- having done that there  is one area in which the information on Exhibit 43A  requires clarification.  At the bottom of the map  there are two roads numbered 17 and 18 which appear on  the North Shore of Ootsa Lake.  They are coloured in  such a way that if you follow the legend for dates of  construction, which appears on the map, the date  attribution for the entirety of those roads is 1910 to  1920.  In one respect that is in error.  When Ootsa  Lake was flooded as a result of the Alcan project I'm  advised that the lake -- the road as it then was right  at the shore of the lake, according to information now  available, and so the road was first to go.  Parts of  that road along the North Shore of the lake were later  rebuilt in the 1950s.  The road as shown on the map is  shown in its correct location.  That is to say in the  location it was in as of October 23rd, 1984.  But, as  I say, for a few stretches of some miles the date  attribution is incorrect.  I suppose when I drove from Smithers to a lake past  Chapman Lake and coming out at a place where I can  never remember whether it's called Smithers Landing or  Skeena Landing.  I think it's Smithers Landing, my lord.  That would be a logging road, I should think.  Would  it show on this map?  It may have been.  And, as I say, I know the road  your lordship's referring to.  There is a road  identified as such which appears to follow roughly  that route.  It may be that while the road -- some  part of that road is in the -- under the  administration of the Ministry of Forests that it has  at some point during its life had money spent on it by  the Ministry of Highways, which as I recall is the  triggering event that constitutes --  Number 22 here is Babine Road.  Where is that?  I'm  sure that's a different road.  The road number 22 on the map leads from Burns Lake  and goes north to Babine Lake.  All right.  But arrives quite a bit further south from Smithers  Landing on the lake.  How about the road that winds through the lovely  Kispiox Valley and ends up at Kisgegas?  That's the Babine slide forest service road. 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  W.C Bedford (for Province)  In chief by Mr. Plant  THE COURT:  Yeah.  Is it on here?  MR. PLANT:  Except to the extent that some part of it may be  highways.  And looking at it it's not, so the answer  is no.  THE COURT:  Yes.  All right.  MR. PLANT:  Oh, and forest service roads are on another map, my  lord, map 35, which will be the subject of evidence  later in the week.  THE COURT:  All right.  MR. PLANT:  And at this point I would like to call William C.  Bedford, please.  THE REGISTRAR:  Will you stand in the witness box, please, sir  and take the Bible in your right hand.  WILLIAM CHARLES BEDFORD, a witness  called on behalf of the Province,  having first been duly sworn,  testified as follows:  THE REGISTRAR:  Would you state your full name and spell your  last name, please, sir?  A  William Charles Bedford.  B-E-D-F-O-R-D.  THE REGISTRAR:  Thank you, sir.  EXAMINATION IN CHIEF BY MR. PLANT:  Q   Mr. Bedford, were you the director  Branch of the Ministry of Transport  of the Government of British Columb  A   I am.  Q   I'd ask you to turn to the affidavi  of the black binder which is in fro  I will change that request and ask  original document, which I have pla  ask if you can identify your signat  of this affidavit?  A   That's correct.  On the right-hand  Q   Are the statements in this affidavi  A   Yes, they are.  MR. PLANT:  I tender this as the next exhibit  do have the original.  And I unders  Exhibit 1126.  THE COURT:  Yes.  of the Properties  ation and Highways  ia?  t which is at tab 2  nt of you.  In fact  you to turn to the  ced before you, and  ure on page three  side.  t true?  my lord.  And I  tand that will be  MR.  (EXHIBIT 1126:  Affidavit of Mr. W.C. Bedford)  PLANT:  Q   Mr. Bedford, I have one or two questions to ask you 19444  W.C. Bedford (for Province)  In chief by Mr. Plant  1 arising out of your affidavit.  In paragraph one you  2 say that you've been the director of the Properties  3 Branch since August, 1988.  For how long have you been  4 employed by the Ministry of Transportation and  5 Highways?  6 A   Two years.  7 Q   Prior to that, roughly speaking, how long have you  8 worked as a provincial civil servant?  9 A  Approximately 15 years.  10 Q   Could you explain briefly the responsibility --  11 responsibilities of the Properties Branch of the  12 Ministry of Transportation and Highways?  13 A   The key responsibilities of the Properties Branch is  14 to acquire, manage and to dispose of land acquired for  15 highway purposes.  16 Q   In carrying out these responsibilities does the branch  17 have record keeping responsibilities?  18 A   Extensively.  19 Q   And these responsibilities are carried out by branch  20 personnel?  21 A   That's correct.  22 Q   And are you responsible for these individuals?  23 A   Overall, yes, I am.  24 Q   Now, in paragraph numbered three of your affidavit,  25 which is on page two, there's reference to Richard  26 Hadley who's described as a research clerk in the  27 Property Services Branch of the ministry.  Does Mr.  28 Hadley have duties in relation to highway tenure and  29 such matters?  30 A   Yes.  That's one of his principal responsibilities is  31 to conduct the historical research with respect to  32 public roads.  33 Q   Now, I'm going to refer briefly to a document you  34 don't have in front of you, Mr. Bedford, but it's  35 Exhibit I to an affidavit of Norman J. Prelypchan of  36 the 6th of May, 1987.  And my friend Mr. Adams made  37 reference to a document from this affidavit earlier  38 today.  This exhibit is a letter from myself to  39 Stewart Rush of April 13, 1987.  Paragraph 2 on page  40 two of that letter reads as follows:  41  42 "Map six depicts major roads only.  It does not  43 depict existing non-regulated land use by the  44 Ministry of Highways, nor does it depict minor  45 roads..."  46  47 That's M-I-N-O-R. 19445  W.C. Bedford (for Province)  In chief by Mr. Plant  Cross-exam by Mr. Guenther  1 "Or roads administered by the Ministry of Lands  2 and Forests."  3  4 In preparing for your examination today, Mr.  5 Bedford, did you have occasion to consult with Mr.  6 Hadley?  7 A   Yes, I did.  8 Q   Could you advise his lordship as to the sort of roads  9 which are not on Exhibit 43A, the highways map?  10 A   Namely those roads that are not in the domain -- that  11 have been created by statute or expenditure of public  12 money under the Transporation and Highways Act or  13 Highways Act, those roads being recreational roads,  14 forestry roads, mining roads, et cetera.  15 Q   Are there any limitations of scale, any factors to  16 which the limitations of scale have had a part to play  17 in here?  18 A  Most definitely, yes.  19 Q   Could you explain what those are?  20 A  Well, just the scale itself in terms of the -- trying  21 to depict minor roads, public roads that is, the scale  22 itself doesn't allow to do that.  In some cases  23 they're so short that the scale itself doesn't render  24 itself to it.  25 Q   Can you provide examples for his lordship of what I  26 might in this letter have inelegantly described as  27 existing non-regulated land use, that is to say land  28 use by your ministry?  29 A  Well, in addition to the -- what is considered to be  30 as public roads as depicted in map six there are other  31 uses that the ministry enjoys with respect to  32 adjoining properties such as gravel pits, areas that  33 are used for the storage of equipment, maintenance  34 yards, offices of the ministry, things of that order.  35 MR. PLANT:  Thank you.  I have no further questions.  36  37 CROSS-EXAMINATION BY MR. GUENTHER:  38 Q   Sir, let me understand what is not or what was not  39 intended to be depicted on the map were the minor  40 roads that you referred to, and also roads that fall  41 under other departments' jurisdiction; is that  42 correct?  43 A   That's correct.  44 Q   Like forest service roads?  45 A   Correct.  46 Q   So there is no intersection here between this map and  47 the mapping of forest service roads as far as you 19446  W.C. Bedford (for Province)  Cross-exam by Mr. Guenther  1 know?  2 A   Not to my knowledge.  3 Q   And what is it that would trigger the jurisdiction of  4 your ministry over say a pre-existing forest service  5 road.  What makes a forest service road into a public  6 road under the domain of your ministry?  7 A   Namely by transfer of ownership or by agreement  8 between ourselves and the Ministry of Forests to  9 undertake the maintenance and expenditure of funds  10 from highways on that particular road.  11 Q   Mr. Hadley now works for you; is that correct?  12 A   That is correct.  13 Q   At the time the map six was prepared that was prior to  14 the time that you were supervisor of Mr. Hadley; is  15 that correct?  16 A   Correct.  17 Q   You were advised by Mr. Hadley that he first of all  18 was responsible for the materials that were pulled  19 together in the supporting documentation; is that  20 correct?  21 A   That is correct.  22 Q   And he also on your advice from him I take it was not  23 the actual drafter of the map; is that correct?  24 A  Mr. Hadley prepared a map which was submitted to the  25 attorney general's office.  2 6 Q   M'hm.  27 A  And then for overall presentation purposes, I  28 understand, this exhibit here was created.  29 Q   From a map that was actually prepared by Mr. Hadley?  30 A   That is correct.  31 Q   Now, did Mr. Hadley actually make the map is my  32 question, the original map?  33 A   The org —  34 Q   Not the one here, but the one that came out of your  35 department?  36 A   That is correct.  37 Q   Is he a map drafter as well?  38 A   No, not per se.  39 Q   Did he have other people prepare the map?  4 0 A   Not to my knowledge.  41 Q   All right.  And have you compared this map to the  42 supporting documents?  43 A   I've asked Mr. -- I've asked Mr. Hadley in terms of  44 the accuracy and he says this is an accurate portrayal  45 of the information provided.  46 Q   Now, the documents that are referred to in Exhibit  47 43B, which is the book of supporting materials, I take 19447  W.C. Bedford (for Province)  Cross-exam by Mr. Guenther  1 it you've looked at that book recently?  2 A   It's been several weeks.  3 Q   All right.  Well, let me ask you some general  4 questions.  First of all, that book lists supporting  5 documents; correct?  6 A   Correct.  7 Q   Those supporting documents, for instance, described at  8 tab B of that book, pages three through ten?  9 A   Yes.  10 Q   And the following tab C, D, E and F, I take it,  11 reflect only a couple of those documents; is that  12 correct?  13 A   Could you repeat that, please?  14 Q   Well, the following documents reproduced in that  15 book --  16 A  M'hm.  17 Q   -- Are not all of the source documents, they're only a  18 couple of the source documents in fact?  19 A   I would assume that to be correct, yes.  20 Q   Was there a reason for that that you're aware of?  21 A   Not aware of.  22 Q   That only several of the documents listed were  23 reproduced?  24 A   I'm not familiar with the request from counsel in  25 terms of what information was to be provided.  26 Obviously couldn't be exhaustive.  27 Q   Do you know what directions Mr. Hadley was presented  28 with originally at all?  29 A   Not at the time, no.  30 Q   Do you know whether the intention of this Mr. Hadley's  31 involvement was to produce a mapping of the roadways  32 that you've described as of 1984 or --  33 A   That is the general instruction, yes.  34 Q   You understand that from Mr. Hadley; is that right?  35 A   Yes.  36 Q   Some of the roadways depicted on the map although  37 major roadways are not heavily travelled roadways, I  38 take it, some in the northern area of that territory;  39 is that correct?  40 A   Correct.  41 Q   And the documentation presented here in support does  42 not inform as to the activity on the roadways listed;  43 is that correct?  That is of 1984.  44 THE COURT:  In traffic or —  45 MR. GUENTHER:  Yes.  46 Q   Let's deal with use in fact by the public.  The  47 documentation nor the map does not indicate that; is 19448  W.C. Bedford (for Province)  Cross-exam by Mr. Guenther  1 that correct?  2 A  Maybe you could reword that question.  3 Q   The mapping shows various routes constructed at  4 various times; is that correct?  5 A   That's correct.  6 Q   But the mapping -- neither the mapping nor the  7 documents in support -- in the supporting document  8 book, Exhibit 43B, actually indicate the degree of use  9 by the public; is that correct?  10 A   You mean by degree of use in terms of traffic counts,  11 daily trips, the level of service that is provided by  12 those particular routes, yeah, I would say the answer  13 is no.  14 Q   Some of the roadways mapped in fact were not being  15 maintained by the department as of 1984; is that also  16 correct?  17 A  Mainly because they fell out of disuse, yes.  18 Q   Yes.  The map itself does not indicate that?  19 A   No.  The map -- the map depicts -- is a pictorial  20 presentation from the historical information that we  21 have at our disposal what were considered public roads  22 at various periods of time throughout the past  23 century.  24 Q   The predecessors to the current ministry were named  25 various names, starting with the Department of Lands  26 and Works in 1873; is that correct?  27 A   I'm not sure of the dates, but, yes, it has evolved  28 over essentially three stages, I believe.  29 Q   My question is this, are you aware of -- was 1873 in  30 fact the first date that there was a ministry that was  31 responsible for transportation in the province, I  32 suppose?  33 A   I'm not sure.  I believe it was 1908 when we first  34 became a formal ministry otherwise prior to that it  35 was Public Works.  I'm not a history of the Ministry  36 of Highways or historian.  37 Q   Let me ask you about a couple of documents in that  38 document book that's in front of you there starting at  39 page 11.  At pages 11 and 12 tab B are listing of the  40 routes that are apparently shown on the map; is that  41 correct?  42 A   Just a moment, please.  What was the question?  43 Q   Those pages list the routes that are apparently  44 depicted on the map; correct?  45 A   That is correct.  4 6 Q   And pages 13 through 15 comprise a document that adds  47 some footnotes to a number of those routes; is that 19449  W.C. Bedford (for Province)  Cross-exam by Mr. Guenther  1 correct?  2 A   Correct.  3 Q   Who prepared that document, pages 13 to 15?  4 A   To my understanding Mr. Hadley.  5 Q   And that reflects some of his understanding of the  6 historical status of some of these roadways?  7 A   Yes.  8 Q   And have you reviewed documents to indicate that those  9 statements are correct?  10 A   I asked Mr. Hadley -- because of the timing of my  11 involvement in the preparation of this material and in  12 the presentation and in view of the fact that I had  13 signed an affidavit I asked Mr. Hadley to demonstrate  14 to me with respect to two specific examples that I  15 choose how he in fact collected information, and to  16 present that information to me, and which he did.  17 Q   Two examples of two --  18 A   That's correct.  19 Q   Are you familiar either from the information received  2 0 from Mr. Hadley or from your own knowledge or from any  21 other source as to the early history or the early --  22 yeah, the early history of involvement of the province  23 in terms of roadways in this -- in the area depicted  24 in map six?  25 A   Do I —  26 Q   Are you familiar with the early history?  27 A   No, I'm not.  28 Q   You're not at all?  29 A   No, other than just a general knowledge of B.C..  30 Q   Are you familiar, or do you know whether some of the  31 early routes in the territory were in fact Indian  32 trails of various sorts themselves?  33 A   No.  34 Q   Does your department or your branch keep records as to  35 the early history of roadways?  36 A   Not in the sense of accumulating the information for  37 strictly historical purposes, but basically as part of  38 its ongoing record keeping.  Where in fact public  39 funds have been expended on a particular road, yes,  40 there is a record.  41 Q   Are there records on file, for whatever purpose, with  42 your ministry that would indicate more general early  43 history of some of the roadways that are depicted or  44 that exist in the area?  45 A   Yes.  And where there is any question or there needs  46 to be verification there are other sources, some of  47 which have been listed in the material that's been 19450  W.C. Bedford (for Province)  Cross-exam by Mr. Guenther  1 presented to the court here.  Namely, public archives  2 is one source.  3 Q   But your state of knowledge is simply a general  4 history of that sort of thing?  5 A   That is correct.  6 Q   Prior to August of 1988 then you were with the  7 Ministry of Highways for -- Transportation and  8 Highways for the prior two years?  9 A   I beg your pardon?  Sorry.  10 Q   Prior to your commencement in the role as director of  11 the Properties Branch you were with the Ministry of  12 Highways for two years prior?  13 A   No.  One year prior to that.  I've been in total two  14 years with the ministry.  15 Q   Prior to that you were in the civil service in what  16 capacity?  17 A   I was with the ministry for one year in the capacity  18 of director of construction.  Do you want to go  19 further?  20 Q   Yes.  What ministry were you involved with prior to  21 that?  22 A   Prior to joining Ministry of Highways I was with the  23 B.C. Public Purchasing Commission.  24 Q   All right.  Did you have any prior involvement with  25 the Ministry of Transportation and Highways prior  26 to —  27 A   Joining it?  28 Q   Yes.  2 9 A   No.  30 Q   Does your department, to your knowledge, now have any  31 policy formulated with respect to the construction of  32 roadways on Indian reserves?  33 A   Policy?  34 Q   Yes.  35 A   Specific policy written to deal with Indian reserves?  36 Q   Yes.  37 A   No.  38 Q   I note that one of the documents produced in that  39 exhibit book, and if you will turn to tab F which is a  40 grouping of maps, the second map or the third map, I  41 suppose, is a depiction of roads through the Hazelton  42 Indian Reserve number one.  I'm sorry.  It's the third  43 one of the -- of that tab.  44 A  Which map are you referring to?  45 Q   It's the third one.  It's the one after the one you  4 6 have.  4 7    MR. PLANT:  Which tab? 19451  W.C. Bedford (for Province)  Cross-exam by Mr. Guenther  1 MR. GUENTHER:  It's tab F of that book.  Yes, I think that's it.  2 A   Bear with me.  Don't ask me to refold this.  Yes.  3 Q   That map purports to show roadways through the  4 Hazelton Indian Reserve as of 1927, I believe; is that  5 correct?  6 A   I beg your pardon?  7 Q   That apparently shows roadways through the Hazelton  8 Indian reserve number one at about 1927.  Let me ask  9 you this?  10 A  According to the legend map it says roads showing  11 through Hazelton Indian Reserve, but in terms of the  12 actual date we indicate it's filed here as April 1928,  13 yes.  14 Q   Let me ask you this, do you have any knowledge as to  15 the current status of those roadways?  16 A   No, I don't.  17 Q   Do you have any knowledge as to -- do you have any  18 knowledge as to the obtaining of consent by your  19 department from -- I'll ask you about Indian bands in  20 particular as to the construction of any roadways or  21 bridges over Indian lands, over Indian reserve lands  22 in particular?  23 A   Do I have what?  24 Q   Any knowledge of any consent being sought or obtained  25 by your department for the construction of any  26 roadways or bridges through Indian reserves?  27 A  Any consent?  28 MR. PLANT:  Throughout the whole province?  29 MR. GUENTHER:  No.  Throughout the territory, the land claims  30 area.  31 A   Oh, I'm sure as work has either in the form of new  32 construction or addressing improvements, widening,  33 whatever that we've obviously had to deal with various  34 bands in the area, and but -- just like we have to  35 deal with a municipality or regional district or  36 whatever.  It's procedurally the same.  37 Q   Is it the policy of your department -- let me ask you  38 as of late 1984, was it -- no, I better ask you as of  39 now given your history of the department.  Is it the  40 policy of the ministry at this time not to seek to  41 expropriate any lands on Indian reserves for the  42 purpose of road construction?  43 A  We can not exercise -- expropriate on reserve lands,  44 no.  Crown.  Federal.  45 Q   By policy or by statute?  46 A   By statute.  The Expropriation Act is provincial  47 legislation.  These are Crown lands. 19452  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  W.C. Bedford (for Province)  Cross-exam by Mr. Guenther  Proceedings  Q   Are you aware of situations in the past, or do you  have knowledge of any situations in the past where the  province has moved to expropriate lands on Indian  reserves for roadway construction?  A   I think the proper term would be resumption.  Not to  my knowledge.  It's been exercised very few times.  Q   By what ministry were you employed in the early '70s?  A   By what ministry?  Q   Yes.  A   Early '70s would have been the Ministry of Recreation  and Conservation which subsequently became the  Ministry of Environment.  Q   Does your ministry now for any purpose keep records of  any designated archeological sites for the purpose of  avoiding the same in the construction of roadways?  A   Not to my knowledge, other than we do have obviously  on file various base maps which would depict that  information, but it's not -- it's not an extraordinary  item that we feel -- keep special maintenance of.  MR. GUENTHER:  Those are my questions, my lord.  THE COURT:  Ms. Russell?  MS. RUSSELL:  No questions, my lord.  MR. PLANT:  I have no re-examination, my lord.  THE COURT:  Thank you.  Thank you, Mr. Bedford.  MR. PLANT:  Thank you very much.  A   Thank you.  (WITNESS ASIDE)  THE COURT:  What are you seeking to tender, Mr. Plant?  MR. PLANT:  Yes, that's right.  Just so that the record makes  some sense I'll clarify one more time the two exhibit  numbers which are presently marked for identification  only, but which having regard to the evidence of the  witness will be sought to be tendered for all purposes  are Exhibits 43A and 43B.  THE COURT:  All right.  I'll defer that until we have —  MR. PLANT:  Excuse me, my lord?  THE COURT:  I'll defer on that application to have those  exhibits marked pending the anticipated argument.  MR. PLANT:  Well, my friends may have a different position.  I  would prefer to tender them now, but if this falls  under the umbrella of some blanket objection I don't  know about, or we have already discussed then it will  have to be deferred until later.  MR. GUENTHER:  Yes.  We would prefer to defer it, my lord.  In  fact, if it's of any assistance, I suspect we'll be 19453  Proceedings  T.H. Hall (for Province)  1 able to clarify our position tomorrow morning.  2 THE COURT:  All right.  Thank you.  3 MR. PLANT:  My lord, the next witness I intend to call is Thomas  4 Hall.  And if I could set the stage for that by asking  5 your lordship to turn to the black binder of  6 affidavits.  The third item down in the left-hand  7 column of the index refers to the affidavit of Thomas  8 Hall dated August 8, 1989.  And his affidavit speaks  9 to the map which within the alienations project is  10 referred to as map seven, the forest recreations site  11 map, but has an exhibit number for identification at  12 this time of 44A.  There is also in respect of this  13 map a book of source documentation numbered Exhibit  14 44B for Identification.  And Mr. Hall's affidavit  15 appears at tab 3 of the binder.  You're tendering Mr. Hall for cross-examination?  Excuse me, my lord?  Are you tendering Mr. Hall for cross-examination?  I will have one or two questions.  Then his affidavit can be the next exhibit, 1127.  Yes.  I have the original for Madam Registrar.  All right.  16 THE COURT  17 MR. PLANT  18 THE COURT  19 MR. PLANT  2 0 THE COURT  21 MR. PLANT  22 THE COURT  23 THE REGISTRAR:  Thank you.  24  25 (EXHIBIT 1127:  Affidavit of Dr. T.H. Hall)  26  27 MR. PLANT:  Perhaps I could impose on Madam Registrar after  28 that's done to obtain the book 44B out of the box for  29 us.  30 THE REGISTRAR:  Just a moment.  31 MR. PLANT:  And I don't think there will be any further need for  32 the other books which have already been placed before  33 your lordship.  However, I am now concerned with  34 forest recreation sites, and I would like to call  35 Thomas Hall to the stand, please.  36 THE REGISTRAR:  Stand, please, sir, and take the Bible in your  37 right hand.  38  39 THOMAS HAMMOND HALL, a witness called  40 on behalf of the Province, having  41 first been duly sworn, testified as  42 follows:  43  44 THE REGISTRAR:  Would you state your full name, and spell your  45 last name, please, sir.  4 6 A   Thomas Hammond Hall.  H-A-L-L.  47 THE REGISTRAR:  Thank you, sir.  Please be seated. 19454  T.H. Hall (for Province)  In chief by Mr. Plant  1 EXAMINATION IN CHIEF BY MR. PLANT:  2 Q   Dr. Hall, are you the manager of the recreation  3 section of the Integrated Resources Branch of the  4 Ministry of Forests?  5 A   Yes.  6 Q   I ask you to -- I ask Madam Registrar if I might have  7 a copy or the original of Dr. Hall's affidavit just to  8 confirm that this is your signature that appears on  9 page three of the Exhibit number 1127.  Is that your  10 signature?  11 A   Yes, it is.  12 Q   Thank you.  And if I could ask you to turn to page  13 three in the black binder which also has your  14 affidavit.  Dr. Hall, I understand that you've worked  15 as a forester in British Columbia since about 1978?  16 A   Yes.  17 Q   And that you've held your present position since May,  18 1987.  In that position you're the manager of the  19 office which has staff responsibility for management  20 of forest service recreation sites in British  21 Columbia?  22 A   Right.  23 Q   Could you please explain for his lordship what a  24 forest recreation site is briefly.  25 A  A forest recreation site is an area where there's a  26 concentration of a public recreational use of a  27 nature, kind or level which would require the forest  28 service to take some management action such as  29 building some facilities like outhouses and what not.  30 Q   If I could ask you to have a look briefly at this  31 booklet entitled "Map seven Forest Recreation Sites"  32 and direct your attention to tab A of the booklet  33 under section 104(1) of the Forest Act.  It reads in  34 part:  "The chief forester may designate Crown land as  35 a recreation site."  I have omitted some of the words  36 there.  37 Dr. Hall, from your perspective, whose department  38 manages these things, does a site have to become -- be  39 designated before it becomes a forest recreation site?  40 A   For our management purposes I would say no in that  41 there is usually an evolution of public recreational  42 use in a given area.  And, as I said before, as that  43 use evolves there's a variety of actions that can take  44 place in response to that.  45 Q   Is one of the actions the assignation of a file number  46 to the site?  47 A   Yes.  At some point we would open up a file in our 19455  T.H. Hall (for Province)  In chief by Mr. Plant  1 records with a specific number that would refer to  2 that area or to that site.  3 Q   That is one of the steps in the progression, as it  4 were?  5 A   Yes.  6 Q   At tab B of the map seven supporting documentation  7 book in the second column of the list that begins on  8 that page there are some file numbers.  They all have  9 the prefix 900.  Does every location of recreational  10 use within provincial forests have a 900 level file  11 number?  12 A  Any area which had a use evolved to the point that we  13 wanted to keep track of it we would open a file of  14 this kind, and that would serve to keep information  15 about the site.  16 Q   Is every 900 file forest recreation site, if I can  17 call it that, designated within the meaning of the  18 section of the act that we earlier referred to?  19 A   No.  20 Q   But nonetheless from your perspective as manager is it  21 a forest recreation site?  22 A   Yes.  The only reason or purpose for designating a  23 site under the Forests Act, as you read out, was to  24 then enable us to enforce some rules and regulations  25 on the nature of the use of that site.  26 Q   Does your ministry have certain obligations in respect  27 of forest service sites?  Forest recreation sites.  28 Excuse me.  29 A   Our ministry has general responsibilities for  30 recreation resources within provincial forests of  31 which recreation sites, facilities would be a part of  32 those resources.  33 Q   Is the 900 file series part of the record keeping that  34 exists in relation to forest service recreation sites?  35 A   Yes, it is.  36 Q   Now, I do have one or two questions about the map.  37 Perhaps I could turn you first to Exhibit A to your  38 affidavit, again at tab 3 of the binder of affidavits.  39 And that, my lord, is in the black binder of  40 affidavits, tab 3, Exhibit 8 of Dr. Hall's affidavit.  41 And there is what purports to be a letter signed by  42 Debby McGill, M-C-G-I-L-L.  Was the map, which is the  43 map of forest recreation sites, prepared before you  44 were appointed to your present position?  45 A   Yes.  46 Q   Did Ms. McGill have duties in relation to map making  47 within your department? 19456  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  T.H. Hall (for Province)  In chief by Mr. Plant  Cross-exam by Mr. Guenther  A   Not so much map making, but she would prepare the  reference material about recreation sites.  Q Did that include any aspect of map making?  A   Of the so-called Exhibit A's that would locate on a  map.  Q   When you refer to the so-called Exhibit A's are you  referring to documents of the sort set out at tab C of  the map seven supporting documentation book?  A   Yes.  These Exhibit A's would typically be prepared by  local staff and sent to Mrs. McGill who would then  review them, correct them, and whatever involvement  with that.  Q   Did she continue to have such duties after you were  appointed to your present position?  A   For a short time.  Q   And were you satisfied with the work she did in this  respect?  A   Yes.  Q   Did her departure from employment, which is referred  to in paragraph numbered three of your affidavit, did  that have anything to do with the quality of her work?  MR.  A  PLANT:  No.  My lord, I have no further questions in direct  examination.  THE COURT:  Thank you.  MR. GUENTHER:  Thank you, my lord.  Just a few questions.  CROSS-EXAMINATION BY MR. GUENTHER:  Q   Sir, the Exhibit A's that you referred to contained at  tab C of Exhibit 44B, that booklet, for what purpose  are those prepared?  A   To identify the location.  Q   Yes.  And who would prepare those documents?  A  As I said, they would be prepared by local staff in  the district offices and sent to region, and in turn  to Victoria where both ourselves and other branches  would look at them, neaten them up, et cetera.  And  they're prepared for the purpose of locating the area  you're talking about, and also to see if there's any  other ownerships, or what not --  Q   All right.  A   -- Associated with the areas.  Q   Sorry.  The date contained on those, the upper  right-hand corner of those documents, would be the  date of preparation of those documents?  A   I would think so.  Q   And would those documents be prepared for the purpose 19457  T.H. Hall (for Province)  Cross-exam by Mr. Guenther  1 of designation or simply for the purpose that you  2 described about monitoring these areas, or both?  3 A  Well, both.  4 Q   The progression of things.  Is the preparation of an  5 Exhibit A of this sort then, one of these one page  6 documents, rather like the first step in the  7 ministry's involvement in a particular area as a  8 recreational site?  In the general sense you use that  9 term.  10 A   It's not always the first step, but it's a step along  11 the way.  12 Q   Close to the first?  13 A   It varies.  14 Q   You see the reason I ask is that I was interested in  15 finding out from you whether any of these documents  16 indicate an actual designation date under the act.  17 Let me go back one step.  I'm sorry.  Of the 46 sites  18 that are evidenced by the documents at tab C of this  19 volume and on the map are those all designated sites  20 under the act?  21 A   I don't know.  22 Q   You don't know?  23 A   I don't have any knowledge of --  24 Q   All right.  And I take it then you wouldn't know of  25 those that may be so designated when they were  26 designated; is that correct?  27 A   I could find out, but I don't know right now.  28 Q   You see I take it that your understanding of the  29 purposes or the intention in terms of Ms. McGill's  30 preparatory work in preparing the material that  31 supports that map that the intention was to establish  32 a mapping of forest recreation sites as of October,  33 1984; correct?  34 A   Yes.  35 Q   A number of the documents have dates on Exhibit A's in  36 1985, for instance?  37 A   Yes.  38 Q   Why would they be included?  39 A  Well, because if the site had a -- had a project  40 record number and was in the files I would assume that  41 would have been what was her criterion for selecting  42 those 46 sites.  A file can be opened on the site and  43 it can then be some years later until an Exhibit A  44 were prepared for it.  45 Q   Are you knowledgeable about the history of these  46 sites?  47 A   No. 1945?  T.H. Hall (for Province)  Cross-exam by Mr. Guenther  1 Q   Have you reviewed the particular files that are  2 referenced in this document book?  3 A   I have -- the 46 entries there?  4 Q   Yes.  5 A  Are entries of files that we keep on record.  6 Q   Yes.  Well, I take it that that means you checked to  7 see whether there were files existent for those 46  8 sites; is that correct?  9 A   I did not check that these were --  10 Q   Debby McGill did that on your understanding; is that  11 correct?  12 A   I was notified by Mr. Kamill Apt she did that.  13 Q   Mr. Apt told you that Ms. McGill searched through the  14 files and checked and produced these documents;  15 correct?  16 A   Yes.  17 Q   You have not checked any of the documents personally  18 yourself?  19 A   Not personally, no.  2 0 Q   Have you checked the map to make sure that the  21 locations reflect actual sites?  22 A   I was notified that that map had been prepared based  23 on this work.  24 Q   All right.  If I referred you to any one of the 46  25 sites and asked you when the first involvement of the  26 ministry was in terms of identifying that either as a  27 potential or actual forest recreation site I take it  28 you could not answer?  29 A   Not here.  I would have to go to the file itself and  30 look at the material.  31 Q   Is it your understanding of the responsibilities or  32 your responsibilities that the process of designation  33 of these areas as forest recreation sites to insulate  34 these particular areas from logging activity at all?  35 A   That would be perhaps one reason.  The primary reason  36 is to, as I said, enable us to enforce rules and  37 regulations on a recreational use of those sites.  38 Q   What kinds of rules and regulations are there?  39 A   No firearms, don't make too much noise, et cetera.  40 Q   I take it that you would agree with me that the  41 situation of the sites on the map and the supporting  42 documentation do not give any information as to the --  43 either the extent of public activity on those sites or  44 the extent of the activity of any of the employees of  45 the ministry on those sites; is that correct?  46 A   This information is not information about use.  47 Q   Do you know when the ministry first started 19459  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  T.H. Hall (for Province)  Cross-exam by Mr. Guenther  Re-exam by Mr. Plant  designating such sites as forest recreation sites?  A   The powers to designation came from the Forests Act in  1978.  At what point the first site got designated I  wouldn't know.  MR. GUENTHER:  Those are my questions, my lord.  THE COURT:  Ms. Russell?  MS. RUSSELL:  No, my lord.  MR. PLANT:  I do have one question on re-examination.  I should  wait to see if Ms. Russell has her usual submission.  THE COURT:  She doesn't.  MS. RUSSELL:  I have no questions.  RE-EXAMINATION BY MR. PLANT:  Q   Dr. Hall, approximately how many forest recreation  sites are there in British Columbia?  GUENTHER:  Objection, my lord.  That surely is a question my  friend should have asked when tendering the witness.  He skirted around the issue by asking the witness  about the process whereby these sites may come to  designation.  Well, it's really a matter of putting his evidence  into perspective.  I don't think that the evidence is  likely to be terribly contentious.  However, I'm in  your lordship's hands.  I think that there was a suggestion, or there might  have been a suggestion, I didn't get it in reading the  transcript later, that perhaps the witness should have  been asked -- might be explained, because it might put  his evidence in perspective if there is that number.  It wouldn't be a decisive factor in the case, I'm  sure, but I'll allow you to ask that question.  MR  MR. PLANT:  THE COURT:  MR.  PLANT:  Q  A  MR. PLANT  THE COURT  The question was, Dr. Hall, whether you knew how many  forest recreation sites there were in the Province of  British Columbia?  We have project record files for about 1,200.  Thank you very much.  All right.  Thank you.  You're excused, doctor.  We'll take the afternoon adjournment.  (WITNESS ASIDE)  MR. PLANT:  Thank you, my lord.  THE REGISTRAR:  Order in court.  Court stands adjourned for a  short recess. 19460  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  (PROCEEDINGS ADJOURNED)  I hereby certify the foregoing to be  a true and accurate transcript of the  proceedings herein to the best of my  skill and ability.  Peri McHale, Official Reporter  UNITED REPORTING SERVICE LTD. 19461  N. A. McCrimmon (For Province)  In Chief by Mr. Plant  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  (PROCEEDINGS RESUMED FOLLOWING SHORT RECESS)  :  Mr. Plant?  :  My lord, the next witness that I propose to call  would be Norman A. McCrimmon.  I should say first that  I would have tendered the forest recreation sites map  and booklet as exhibits proper but for my friend's  blanket objection.  And so your lordship has a  reference, those are exhibits for identification 44A  and 44B.  Now, turning to Mr. McCrimmon, he has sworn one  affidavit dated July 28, 1989, but it speaks to two  maps and references to them are made in the index page  of the black binder of alienations affidavits.  One  map, which is called Fire Protection Areas or map 1,  is presently Exhibit 40A for identification and the  source documentation booklet is Exhibit 40B.  The second map, map 4, is the map of municipalities  within the land claims area.  The map itself is  presently 41A for identification and there are two  volumes of source documentation, Exhibits 41B and 41C  respectively.  And, obviously, it's my intention to tender Mr.  McCrimmon's affidavit for the purpose of removing the  "for identification" qualification from the  description.  I have the original of Mr. McCrimmon's  affidavit here.  Perhaps I could ask that that be  marked as Exhibit 1128.  (EXHIBIT 1128:  AFFIDAVIT OF NORMAN A. McCRIMMON DATED  JULY 28, 198 9)  MR. PLANT:  I would then ask Mr. McCrimmon to come forward,  please.  NORMAN A. McCRIMMON a witness  called on behalf of the  provincial defendant, after  first being duly sworn,  testified as follows:  THE REGISTRAR:  Would you state your full name and spell your  last name, please?  THE WITNESS:   Norman Alec McCrimmon, M-C capital C-R-I-M-M-O-N.  EXAMINATION IN CHIEF BY MR. PLANT: 19462  N. A. McCrimmon (For Province)  In Chief by Mr. Plant  1  ]  MR. PLANT  2  Q  3  4  5  6  A  7  Q  8  9  10  11  A  12  Q  13  14  15  A  16  Q  17  18  19  A  20  Q  21  22  23  A  24  25  26  27  Q  28  29  A  30  31  32  33  Q  34  35  36  A  37  38  39  40  41  42  Q  43  44  45  46  47  Mr. McCrimmon, are you the director of the municipal  administrative services branch of the Ministry of  Municipal Affairs, recreation and culture, of the  Government of British Columbia?  I am.  I ask that Exhibit 1128 be placed before the witness.  I am producing this affidavit document to you, Mr.  McCrimmon, is that your signature on page four above  your typed name?  It is.  And are the statements in this affidavit -- I should  rephrase that, were the statements in this affidavit  true as of the date you swore them?  They were.  I understand, Mr. McCrimmon, that you have been  employed by municipal affairs as a department or  ministry for some 20 years?  Yes.  Could you please briefly describe the work of the  municipal administrative service branch, that is, the  branch to which you are the director?  This branch is responsible for assisting  municipalities and regional districts to meet their  responsibilities and to provide services given to them  by the Municipal Act and other statutes.  Could you explain in particular the record keeping  responsibilities of the branch?  The branch keeps the central Municipal Affairs  Ministry records, not the recreational and culture  records, but the ministry, the old Municipal Affairs  records.  Could you give his lordship an indication, an example  of the types of records that are contemplated by that  statement?  Yes, letters patent incorporating municipalities,  regional districts, bylaws of all village  municipalities, borrowing bylaws of all  municipalities, records providing for the  establishment of specified areas of regional  districts.  Thank you.  I wish to direct your attention first to  the subject matter of map 1, which is entitled Fire  Improvement Areas.  When I say map 1, I am referring  to Exhibit 40A for identification.  Fire Protection  Areas may be the name of the map.  Now, Mr. McCrimmon, I understand that there have 19463  N. A. McCrimmon (For Province)  In Chief by Mr. Plant  1 been some recent changes in the governing legislation  2 in this area but I ask you to direct your mind to the  3 time before that, that is to say, the period 1984 to  4 1987, where these various documents were pulled  5 together.  And I want, in that connection, to ask you  6 to explain one or two things.  First, if I look here  7 at the map 40A, there is an area in red, the middle of  8 three areas so coloured on the map, entitled Lake  9 Kathlyn Improvement District.  Mr. McCrimmon, could  10 you tell the court what an improvement district is?  11 A   It's a quasi-municipal corporation which is created to  12 provide one or more services to a rural area in the  13 province.  14 Q   Now, the second item I would like to ask you about  15 relates to Burns Lake Specified Area, what is or was a  16 specified area?  17 A  A specified area is a single service area created for  18 the persons, property owners, residents within that  19 area for a particular service, in this case, fire  20 protection.  21 Q   And the third area on this map is entitled South  22 Hazelton Water Works District, is that an improvement  23 district or a specified area?  24 A   Improvement district.  25 Q   Now, I do want to direct your attention more  26 specifically to the Burns Lake specified area, which  27 is in the lower right hand corner of Exhibit 40A.  Mr.  28 McCrimmon, do you recall that last week, or  29 thereabouts, I contacted your office to request that  30 steps be taken to check this information?  31 A   Yes.  32 Q   And can you report on the results of your inquiries  33 with respect to the Burns Lake Specified Area, please?  34 A   Yes, we found that the area delineated on the map  35 there was one-half district lot larger than it should  36 have been, specifically, District Lot 1895 should only  37 include the east half within the boundaries of the  38 specified area.  39 Q   Now, as I read the area coloured in red, in the Burns  40 Lake specified area, it appears to include all of a  41 district lot numbered 1895?  42 A   That's correct.  43 Q   And is that —  44 A   That is not correct.  45 Q   That is not correct.  It should only be the east half?  46 A   That is correct, yes.  47 Q   Now, in that connection I am going to ask you to look 19464  N. A. McCrimmon (For Province)  In Chief by Mr. Plant  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  Q  A  A  Q  A  Q  A  Q  A  Q  A  at the booklet that accompanies map one, which is  Exhibit 40B for identification, and under tab B-l, at  page one -- or, I am sorry, page 3, the page numbered  three -- your lordship should have that in the pile on  your extreme right?  I do have it?  Thank you.  It's the book entitled Map 1, Fire Protection Areas.  Oh, yes.  If your lordship could turn to Tab B-l at page 3.  And this is entitled regional district of Bulkley-  Nechako, bylaw number 171.  Can you tell his lordship  what this document is?  That particular document amended the boundaries of the  particular specified area which was created in 1969  and it was subsequently amended through that  particular bylaw.  If I could turn to page five under that tab, Schedule  "A" bylaw number 171 set out thereafter.  In the  penultimate line of that page, the words "the east  half of" have been crossed out.  Can you explain the  circumstances around that?  Yes, there is a discrepancy between the metes and  bounds description which is shown here and the map and  in 1987 it was determined that on checking with the  regional district, the whole of the District Lot 1895  was to be included within the boundaries of the  specified areas as originally established and that --  hence the notation.  So the notation was made at that time?  That's right.  And has it been subsequently discovered that that's --  that step taken by your office was incorrect, if I  could put it that way?  That is right.  And so the bylaw, as it ought to read, should include  the words "the east half of"?  That's right.  Now, if I could direct your attention to a paragraph  numbered four in your affidavit, which is at tab 4 of  the black binder of affidavits.  There is reference  there to Mr. Bryan, he spells his name B-R-Y-A-N,  Green, who is identified as a technician, municipal  administrative services branch.  Could you explain  briefly what Mr. Green's duties and responsibilities  are?  Yes, Mr. Green's essential responsibility is to write  metes and bounds descriptions for letters patent and 19465  N. A. McCrimmon (For Province)  Cross-exam by Mr. Guenther  1  2  3  4  5  Q  6  7  A  8  9  Q  10  A  11  MR.  PLANT  12  13  CROSS-EXA  14  15  MR.  guent:  16  17  A  18  19  20  21  22  Q  23  24  A  25  26  27  Q  28  29  30  A  31  Q  32  33  A  34  Q  35  A  36  Q  37  38  A  39  Q  40  41  A  42  Q  43  44  45  46  47  A  specified areas where required and, upon doing that,  and having the description advertised in the B. C.  Gazette where required, he prepares subsequent maps  for all these jurisdictions.  For what period of time, roughly speaking, has Mr.  Green been employed at such duties by the ministry?  Approximately ten to 15 years.  I am not positive  exactly.  Excuse me?  Ten to 15 years.  :  My lord, I have no further questions.  IER:  Sir, what's the difference between a regional  district and a municipality?  A regional district incorporates all of the non-  municipal areas within a particular jurisdiction.  There are 29 in the province and they have electoral  area directors which represent various groups within  each regional district.  Generally, a fire protection area would fall outside  of a municipality, always?  Yes.  Municipalities can have specified areas of their  own but mostly they do not have fire protection areas  specified.  And, generally speaking, where there is a municipality  that municipality will provide for fire protection  within the bounds of the municipality, correct?  Yes.  Save and except with respect to Indian services; is  that correct?  Yes, unless by contract.  By contract with who?  With the municipality.  That is that the Indian reserve or the Department of  Indian Affairs has a contract with the municipality?  Yes.  Even if that Indian reserve falls within the  municipality; is that correct?  Yes.  And in fact there are areas within the land claims  territory, for instance, at Hagwilget Reserve, that  fall within the municipality or the -- sorry -- within  the Municipality of the District of New Hazelton, are  you familiar with that area at all?  No. 19466  N. A. McCrimmon (For Province)  Cross-exam by Mr. Guenther  1 Q   Not at all?  2 A   No.  3 Q   You are not familiar with the Hagwilget Reserve?  4 A   No.  5 Q   An incorporated municipality, generally, if one looks  6 at the boundaries, one will find that the boundaries  7 are developed with a view to expansion in the future,  8 is that fair to say?  9 A   Yes.  10 Q   And those boundaries will reflect an area that will  11 include, generally, a pocket or pockets of more  12 concentrated population as well as outlying rural  13 areas, is that fair to say?  14 A   Yes.  15 Q   And the development of fire protection areas in  16 particular, as indicated on map number 1, for  17 instance, do not imply that there is any actual fire  18 protection service being provided; is that correct?  19 A   I would say that it does apply, if there is a  20 specified area for fire protection then fire  21 protection is provided.  22 Q   If you look at Exhibit 40B, which is the document book  23 entitled Map 1, Fire Protection Areas.  At tab C of  24 that document is a memorandum from Mr. Callan to Mr.  25 Fry, do you see that?  Do you know anything about that  2 6              memorandum?  27 A   No, I don't.  28 Q   About its preparation or who directed that or  29 instructed its production?  30 A   I don't, no.  31 Q   Do you know who Mr. Callan is?  32 A   Oh, yes.  33 Q   Who is that?  34 A  Mr. Callan is the previous executive director of the  35 branch that I am now director.  36 Q   What I was referring to is in paragraph 2 with respect  37 to the Lake Kathlyn Improvement District with  38 authority to provide fire protection, Mr. Callan  39 indicates that there is no record to show that the  40 service is actually being provided?  41 A   By way of the improvement district you're saying?  42 Q   Yes.  43 A  Well, we do not administer improvement districts in my  44 branch.  They are administered in another branch so I  45 have no knowledge of that.  46 Q   Do you supervise Mr. Green?  47 A   Yes, I do. 19467  N. A. McCrimmon (For Province)  Cross-exam by Mr. Guenther  1 Q   And he advises you that he prepared the documents in  2 the book that you were just referred to, Exhibit 40B?  3 A   Yes.  4 Q   And I take it that he obtained the documents with  5 respect to the Lake Kathlyn Improvement District from  6 the other branch; is that correct?  7 A   Yes.  8 Q   Same ministry?  9 A   Yes.  10 Q   Short of the memorandum from Mr. Callan, of which you  11 have no information, the documents and the map with  12 respect to the fire protection areas do not, then, I  13 take it, inform anyone or the reader as to what  14 activities are actually ongoing in those particular  15 areas, is that fair to say?  16 A   No, I think they do provide, they do advise of what  17 activities they are undertaking, otherwise there would  18 be no purpose for them.  19 Q   That's what I am getting at, the map, this particular  20 map 1 apparently shows -- is headed Fire Protection  21 Areas and apparently was produced for the purpose of  22 showing the existence of fire protection areas as of  23 1984; is that correct?  24 A   That's correct.  25 Q   And it shows three fire protection areas?  26 A  Which -- are you talking of all improvement districts  27 or are you mixing improvement districts with specified  28 areas?  Because there is a difference.  29 Q   I understand what you're saying, sir, but these three  30 areas I understood were designated on this map as  31 being fire protection areas or having fire protection  32 functions and there being three of them outside of  33 incorporated municipalities within the land claims  34 territories, correct?  35 A   Yes.  36 Q   Of the three, there is at least an indication in your  37 own documents, there is no record to show that there  38 is any service being provided in the Lake Kathlyn  39 Improvement District?  40 A   It may have more than fire protection as an object.  41 Q   But the documents themselves do not tell us anything  42 other than that which the memorandum says as to actual  43 activity in the area; is that correct?  44 A   That's correct, by name, yes.  45 Q   The documents as well tell us nothing about the actual  46 activity ongoing in the South Hazelton Waterworks  47 District, isn't that correct? 1946?  N. A. McCrimmon (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  A   That's correct.  Q   Nor with respect to the Burns Lake specified area,  isn't that correct?  A   That's correct.  Q   Do you know who actually produced the map that led to  the production of map 1 or map 4?  A   Our branch or Mr. Green.  Q   Did he actually draw the maps, do you know?  A   Yes.  MR. GUENTHER:  Thank you.  Those of my questions.  THE COURT:  Ms. Russell?  MS. RUSSELL:  I have no questions.  THE COURT  MR. PLANT  THE COURT  MR. PLANT  Mr. Plant?  I have no questions on re-examination, my lord.  That you, Mr. McCrimmon.  You are excused.  (Witness aside)  For sake of clarity, I should state that it was my  intention at this juncture to tender Exhibits 40A,  40B, 41A, 41B, and 41C.  THE COURT:  All for identification now?  MR. PLANT:  They are marked for identification now and I wish to  have them marked as exhibits proper.  THE COURT:  You wish to defer that, Mr. Guenther?  MR. GUENTHER: Yes, my lord.  THE COURT:  All right.  MR. PLANT:  I had also anticipated that we would spend some time  today actually marking maps and exhibits.  As a  result, I find that although it's not yet 4 o'clock, I  have exhausted my supply of witnesses for the day.  THE COURT:  All right.  MR. PLANT:  If it might be convenient to adjourn?  THE COURT:  All right.  How many more of these witnesses do you  have?  MR. PLANT:  There are four more witnesses, as presently  scheduled three will be testifying tomorrow and one  first thing Tuesday morning --  THE COURT:  Wednesday morning?  Tomorrow is Tuesday.  MR. PLANT:  Wednesday morning.  Excuse me.  I had asked my  friend for some indication of how long he would be, I  haven't yet received any, so I would like to -- well,  I don't know when I am going to be able to reorganize  the schedule of the four that remain but that's where  we are at.  THE COURT:  All right.  10 o'clock tomorrow.  MR. GUENTHER: My lord, I was just going to say that I would 19469  N. A. McCrimmon (For Province)  Cross-exam by Mr. Guenther  1 suspect that we could get through all of the four  2 remaining tomorrow and probably the bulk in the  3 morning, I think.  4 MR. PLANT:  These witnesses are coming from the north and they  5 are coming from Smithers.  I will do my best to make  6 those arrangements tomorrow.  7 THE COURT:  All right.  Thank you.  8  9 (PROCEEDINGS ADJOURNED UNTIL 10 O'CLOCK A. M.,  10 TUESDAY, SEPTEMBER 12, 1989)  11  12  13  14  15 I hereby certify the foregoing to be  16 a true and accurate transcript of the  17 proceedings herein to the best of my  18 skill and ability.  19  20  21  22  23  24 Wilf Roy  25 Official Reporter  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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