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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1989-11-23] British Columbia. Supreme Court Nov 23, 1989

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 22703  Proceedings  1 Vancouver, B.C.  2 November 23rd, 1989  3  4 (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT)  5  6 THE REGISTRAR:  In the Supreme Court of British Columbia, this  7 23rd day of November, 1989.  In the matter of  8 Delgamuukw versus Her Majesty the Queen at bar, my  9 lord.  10 MR. PLANT:  My lord —  11 THE COURT:  Mr. Plant, may I mention something else before you  12 begin.  Madam registrar's brought to my attention the  13 question of the 70 odd exhibits of Mr. Boys'  14 commission evidence, and unless counsel can persuade  15 me otherwise I see no reason why this book into which  16 the exhibits, the original exhibits, have been placed  17 should not be marked as the exhibit number that was  18 given with a capital E.  And then -- I'm sorry.  That  19 the index should not be just Exhibit 1213E and the  20 exhibits be given the tab number that they had in this  21 book without each exhibit being separately marked.  22 MS. KOENIGSBERG:  I'm sorry.  23 THE COURT:  What I'm really suggesting is I see no reason why  24 each individual exhibit be separately marked if we  25 mark the index.  Is that agreeable?  2 6 MR. GRANT:  Yes.  27 MS. KOENIGSBERG:  Yes.  28  29 (EXHIBIT 1213E:  Index plus Exhibits (1-70) marked on  30 commission evidence of Boys)  31  32 THE COURT:  All right.  Mr. Plant.  33 MR. PLANT:  My first, I hope brief, question of clarification  34 arises out of your lordship's ruling with respect to  35 those documents -- those documents that is -- that are  36 contained in that binder that were marked during the  37 examination -- the cross-examination of Mr. Boys.  38 Now, I reread what your lordship said about those  39 documents in your lordship's ruling late yesterday  4 0 afternoon.  The documents which we tendered to Mr.  41 Boys and were identified and proved through our  42 cross-examination of Mr. Boys on commission are also  43 the documents in part two of Exhibit 1202, the  44 provincial general documents binder.  Upon reading  45 your lordship's comments with respect to these  46 documents in your lordship's ruling yesterday I'm  47 uncertain as to whether the admissibility of those 22704  Proceedings  1 documents is subject to your lordship's ruling on Mr.  2 Boys' evidence as a whole or whether those documents  3 are simply, well, not subject to that.  In practical  4 terms we want these documents to be admissible against  5 the plaintiffs if they should be, and I simply require  6 your lordship's clarification that it was the  7 intention of your lordship in removing the stigma of  8 identification from part two of Exhibit 1202 you were  9 intending that those documents be admissible at large  10 in the case.  11 THE COURT:  Well, those documents are admissible at large in the  12 case as part of exhibit number whatever it was.  1202,  13 was it?  14 MR. PLANT:  Yes.  In the provincial document binder.  15 THE COURT:  They're evidence anyway.  They are also evidence in  16 the case as part of Exhibit 1213E as against the -- as  17 against Canada, and they are also evidence in the case  18 as against the plaintiff insofar as they fall within  19 the ruling I made yesterday.  20 MR. PLANT:  That does assist me, my lord.  21 THE COURT:  It assists Ms. Sigurdson, I think.  I don't know if  22 I can make it any -- any more plain.  I've never  23 looked at the documents.  And there may be reasons why  24 what I have said is awkward, but without knowing more  25 about them I'm not able to help you any further than  26 that.  27 MR. PLANT:  What your lordship has said is of considerable  28 assistance.  29 There is a second aspect of clarification arising  30 out of your lordship's ruling with respect to the  31 cross-examination of Mr. Boys.  32 MR. GUENTHER:  I don't mean to interrupt.  I take it my friend  33 is moving on to another point and I had a comment  34 about your honour's reply.  35 The only thing I have difficulty with is the  36 comment that those particular documents are admissible  37 in the case at large against the plaintiffs as part of  38 Exhibit 1202.  You may recall to the extent those  39 documents were in 1202 they were dependent on being  40 identified by Mr. Boys in his cross-examination by Mr.  41 Mackenzie.  And I would be happy only if the latter  42 comment that your lordship made applied to those  43 documents, that is they are admissible as against the  44 plaintiffs to the extent they fall within yesterday's  45 ruling.  46 MR. PLANT:  That does not assist me.  That's exactly the  47 issue -- 22705  Proceedings  1  THE  COURT  2  3  4  5  6  7  8  MR.  PLANT  9  10  11  THE  COURT  12  MR.  PLANT  13  14  15  16  17  18  19  20  21  22  23  24  25  THE  COURT  26  27  28  29  30  31  32  33  34  35  36  37  MR.  PLANT  38  39  40  41  42  43  44  45  46  THE  COURT  47  MR.  PLANT  :  Well, Mr. Guenther has just raised a question I did  not have in mind.  I don't remember the discussion  when 1202 was admitted.  I did not recall.  Mr.  Guenther has now reminded me.  He's not reminding me,  he's telling me that there was some qualification  attached to the -- to that part of Exhibit 1202.  Does  that accord with other counsel's recollection?  :  What Mr. Guenther is telling you, my lord, is that  there is some qualification about the documents in  part two of 1202.  :  Yes.  :  That I do not accept.  I say Mr. Boys identified  those documents.  Having done so the fact is that they  are otherwise admissible as ancient documents and  business records, and in 1202 they are admissible now  in the case at large full stop.  Your lordship then  went on to say that insofar as the documents go those  documents are also in Exhibit 1213, and in that  context they may be subject to your lordship's ruling  about Mr. Boys' cross-examination.  And I'm happy with  that.  What my friend is seeking, if I can put it this  way, is to taint 1202 by 1213.  I do not accept that.  And if that is an issue I would wish the opportunity  to make submissions on it.  :  Well, I think what counsel are going to have to do  is make a list of those documents in 1202, the second  part, that were identified or qualified for  admissibility as ancient documents or business records  by Mr. Boys and then I think we'll have to have an  argument about whether they are in evidence generally  or whether they are not in evidence as part of 1202,  and if they're not then they are only evidence -- they  are only in to the qualified extent that has been  already described with respect to 1213E.  So I don't  think I can -- I can resolve this dichotomy without  document by document investigation.  :  I notice my friend Ms. Koenigsberg wishes to say  something, but I did have something to say that  followed on what your lordship just said, and that is  in a sense that drives us back, or it drives me back,  at any rate, to another area where I required some  clarification from your lordship arising out of your  lordship's ruling yesterday.  And I suppose I could  put it this way, most simply what is sauce for the  goose must be sauce for the gander.  :  I've never known what that means.  :  I don't either, but it sounded good.  The point 22706  Proceedings  1 though is this, if I can put it in an intelligible  2 way, we have been, as I take your lordship's ruling,  3 obstructed from relying on any evidence given by Mr.  4 Boys in cross-examination as against the plaintiffs.  5 I say that the same stricture applies with respect to  6 any evidence given by Mr. Boys that pertains to the  7 plaintiffs' case, most particularly any evidence given  8 by Mr. Boys on cross-examination.  And here is where  9 this problem comes, my lord, and I'm going to have --  10 just take a brief detour back to volume 149 of the  11 transcript, November 10, 1988.  Mr. Grant at page 9478  12 said during the course of a discussion initiated by  13 your lordship on the sittings that would take place in  14 Smithers for the cross-examination of custodial  15 affidavits, Mr. Grant said at the bottom of 9478:  16  17 "I've been asked by Mr. Rush to have, I believe  18 it's the overlay maps right up to 9-A, the  19 large maps, removed from the court, those  20 exhibits taken from the court, and the three  21 trapline maps that I believe Mr. Goldie put in  22 as exhibits are those linen maps.  If they  23 could be taken because of for the commission  24 evidence of Mr. Boys on cross-examination."  25  26 So what the plaintiffs wanted was to cross-examine  27 Mr. Boys.  And they did cross-examine Mr. Boys on  28 traplines.  There's no issue as between the plaintiffs  29 and Canada on traplines.  The issue on traplines is as  30 between the plaintiffs and the Province.  So the  31 plaintiffs are saying we want these exhibits because  32 we want to cross-examine Mr. Boys, a witness who has  33 material and relevant knowledge on this case.  We want  34 to cross-examine him on our defence or our response to  35 the Province's allegations against us and to help us  36 assert our claim against the Province.  And yet the  37 effect of your lordship's ruling is that we can not  38 ask any questions of Mr. Boys, or precisely those  39 questions which we did ask of Mr. Boys on those very  40 issues are inadmissible.  And if that isn't something  41 close to a practical absurdity I would have trouble  42 identifying one that is.  If there is a practical way  43 of dealing with it -- if your lordship says the ruling  44 I made stands then I say for consistency all the  45 evidence which Mr. Rush obtained on cross-examination  46 which goes to the case as between the plaintiffs and  47 the Province ought similarly to be ruled irrelevant 22707  Proceedings  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR.  THE  PLANT  COURT  MR. PLANT  THE  MR.  THE  MR.  THE  COURT  PLANT  COURT  PLANT  COURT  otherwise there is, I say, such unfairness that it --  well, it deserves to be noted that there is in my  respectful submission substantial unfairness to the  Province.  I don't think I agree with you, Mr. Plant.  But  maybe it's because I don't understand your proposition  fully.  But I think I do.  In the view I have when a  party calls a witness his evidence becomes evidence in  the case for and against all parties.  When Canada  called Mr. Boys his evidence became evidence in the  case in chief, and to the extent that  cross-examination was permissible the same applied in  the cross-examination.  The only difference we have  here is that there was conducted because it was on  commission and not in an environment where a ruling  could be obtained a cross-examination which I have now  found to be one which would have -- should have been  limited in its scope.  And it's only the evidence  that -- that was obtained in the course of that  limited cross-examination or that part of the  cross-examination that is inadmissible.  Whatever the  Province extracted from Mr. Boys during that  cross-examination, which I have found to have been a  cross-examination which should not have been  conducted, is not evidence in this case at all.  But  that witness having been called by the plaintiff --  By Canada.  By Canada the plaintiff was entitled to  cross-examine that witness, and anything that counsel  adduced from Mr. Boys in the course of that  permissible cross-examination is evidence at large in  the case.  If I understand your lordship A is entitled to be --  entitled to examine a witness in respect of issues  dealing with the case of B and C.  C is then entitled  to cross-examine that witness at large, but B, my  client, is basically frozen out of the --  Yes.  -- Process.  Well, you put it in a colourful way, Mr. Plant.  Well, the fact is that's exactly what happens.  That's because as I see it your client didn't have a  right of cross-examination at that time and the  evidence ought not to have been adduced, and I have  attempted to limit its admissibility.  I don't -- we  do not have the American system where  cross-examination is limited to those things that are 2270E  Proceedings  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR. PLANT  THE COURT  MR. PLANT  THE COURT  MR. PLANT  raised in chief.  Once a witness is called at the  trial anyone has the right to cross-examine, and can  cross-examine at large.  All I'm attempting to rule in  this situation is that to the extent your  cross-examination was conducted on issues that -- on  issues with respect to which you and Canada are not  adverse the plaintiff should not be bound.  This is  approaching metaphysics, but that's the best I can do  with it.  Right.  I suppose there is the further difficulty  that in other situations we might have the opportunity  to correct that problem by calling the witness as our  own witness.  Yes.  That is a sensible solution.  Well, I actually don't  want to put it that far.  I don't think it's a  sensible solution, but it's an available alternative.  It would mean, for example, in a trial the witness  could come forward once and then weeks or months later  come forward again.  I question though whether that  is --  If you called that witness you couldn't lead him.  Well, my lord, if that's the problem the answer is  simple.  Weight, not admissibility.  I would urge your  lordship most strenuously in this case of all cases  where evidence from start to finish has been led of  elderly people in Smithers and Victoria, in  Chilliwack, that if that is your lordship's concern I  would urge your lordship to reconsider the matter.  I'm happy with the proposition that where the evidence  is so tainted by it having been led in the manner that  it was led that it perhaps ought to be accorded no  weight and we can deal with that in final argument, as  we are going to have to deal with a great volume of  evidence led by the plaintiffs which was truly led.  But the more practical difficulty here is that these  witnesses were called on commission because they were  elderly, because they were failing, and my  recollection is that Mr. Giraud had cancer and so from  a practical point of view this was our chance, the  only chance, to get the evidence from those two  individuals.  And -- but as I have your lordship's  point the -- in those situations although the evidence  is clearly material and clearly bears on the issues as  affecting the Province we don't have the opportunity  to ask questions of the witness.  And I believe I have  your lordship on that point. 22709  Proceedings  Submission by Mr. Guenther  1 THE COURT:  Well, litigation should not be a roller-coaster  2 ride.  I think that there are good grounds to  3 reconsider many of the things that have been done in  4 this trial, and somebody will have a chance to  5 discharge that enjoyable function.  I don't think I  6 should be cutting the pieces and changing my mind and  7 going back and forth.  If you want to apply for leave  8 to take Mr. Boys' evidence in commission or reopen  9 your case to call him that would be another matter,  10 but I don't think I want to disturb what I decided  11 yesterday.  I don't think we should be having second  12 thoughts about all these things.  It's difficult  13 enough to keep it moving as it is.  I'm not going  14 to -- I'm going to stubbornly decline the opportunity  15 to reconsider what I said yesterday.  16 May I say that it will not be possible to have the  17 team picture taken tomorrow.  There are other  18 difficulties have arisen and something else will have  19 to be worked out at another date.  20 Ms. Koenigsberg, are you ready to proceed?  21 MS. KOENIGSBERG:  I believe my friend Mr. Guenther has some  22 submissions he wants to make on the Giraud matter.  23 THE COURT:  All right.  24 MS. KOENIGSBERG:  And then I think we are to deal with the  25 matter of custody on business records.  2 6 THE COURT:  Yes.  27 MR. GUENTHER:  My lord, I'll be brief.  It's in essence a  28 similar point, of course, to the submission that I  29 made with respect to Mr. Boys.  I simply wanted to  30 draw some distinctions as between Mr. Boys' evidence  31 and Mr. Giraud's.  There was an issue raised as to  32 there being a point of conflict as between the parties  33 defendant with respect to some of the evidence  34 cross-examined from Mr. Boys that does not exist in  35 Mr. Giraud's commission evidence.  And my submission  36 here is that the cross-examination evidence by Mr.  37 Mackenzie of Mr. Giraud should not be permitted at  38 all.  I say that for these reasons:  Mr. Giraud was a  39 type of witness similar to that which you heard  40 yesterday from Mr. Turnbull and Mr. Woloshyn.  That is  41 he was a fishery officer, and much of the evidence was  42 a similar type of evidence except from an earlier  43 period of time.  He testified in chief also as to some  44 traplines, but the bulk of his evidence was with  45 respect to his experience as a fishery officer about  4 6 mid century, this century.  And there were some annual  47 reports put to him.  He talked about patrol areas, he 22710  Submission by Mr. Guenther  1 talked about Indian food fish licenses and conditions  2 placed thereon, on closures and fishing methods.  He  3 talked about enforcement of the fishery.  He talked  4 about winter fishing by the Indian people.  He talked  5 about stream blockages.  He talked about some of his  6 experiences in enforcing the sport fishery,  7 introducing catch statistics, and spoke to the  8 question of involvement of some of the Indian people  9 in the commercial industry.  His cross-examination by  10 Mr. Mackenzie raised nothing other than that which was  11 covered in chief by Ms. Koenigsberg and basically  12 focused in two areas.  That is his experiences with  13 trapping and to a very limited extent some of his  14 experiences in working for a mining company in the  15 early years.  There can be no dispute, in my  16 submission, that there was nothing raised in the  17 cross-examination of Mr. Mackenzie that went to any  18 issue that exists here as between the parties  19 defendant, and could in any way said to be adverse.  I  20 reiterate the comment I made yesterday, the simple  21 fact that there are elements of interest in different  22 ways to the Province and to Canada does not point to  23 adversity, but simply to, as one of my friends put it  24 yesterday, a division of tasks on the parts of the  25 parties defendant which points out only the  26 commonality of their positions.  And I add only this  27 point, that I have reviewed the cross-examination on  28 commission by Mr. Rush of Mr. Giraud, and if it could  29 be said with respect to Mr. Rush's cross-examination  30 of Mr. Boys that it referred to Mr. Mackenzie's  31 cross-examination, the same cannot be said of Mr.  32 Rush's cross-examination of Mr. Giraud except as to  33 one reference at the very last part of his  34 cross-examination where he said:  35  36 "Mr. Giraud, let me ask you one other question.  37 You told Mr. Mackenzie yesterday that you did  38 not observe conservation ethics amongst the  39 Indians.  What did you mean by that?"  40  41 So what I am submitting here is that none of the  42 qualifications that my friends urged upon your  43 lordship that led to whatever subsequently might be  44 done with Mr. Boys exist in the cross-examination of  45 Mr. Giraud.  And simply put, the cross-examination --  46 what should go in from the commission of Mr. Giraud is  47 his examination in chief by Ms. Koenigsberg and his 22711  Submission 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  MS.  THE  MR.  THE  MR.  cross-examination by Mr. Rush.  COURT:  Perhaps you should go next, Ms. Koenigsberg.  KOENIGSBERG:  I was going to say to your lordship that I  don't think I have anything to say that I didn't  already say.  COURT:  Thank you.  Mr. Plant.  PLANT:  All I would add to what I've already said -- well,  perhaps I should say this, I assume that your  lordship's reluctance to reconsider yesterday's ruling  would include a reluctance not to apply the principle  laid down by that ruling to this occasion, so I won't  re-argue the merits other than to say that with  respect to Mr. Mackenzie's 20 or so page  cross-examination conducted in Chilliwack over the  course of a four day commission at which Mr. Mackenzie  attended, in the course of that cross-examination Mr.  Mackenzie asks very few of the leading questions that  my friend was so concerned about in the  cross-examination of Mr. Boys.  And I could read your  lordship pages.  In fact, I could read your lordship  whole pages where there is no -- there are no leading  questions asked by Mr. Mackenzie.  I won't do that.  But I will seek clarification from your lordship on  one point, and that is that when Mr. Guenther says the  only part that should go in of this cross-examination  is the -- of this transcript is the examination in  chief by Ms. Koenigsberg and the cross-examination by  Mr. Rush that he will not be relying to his benefit on  any portions of Mr. Mackenzie's cross-examination  should there be any that he could take for that  purpose.  In other words, it's just plain out.  It's  gone.  Yes.  You don't suggest that there is any  cross-examination by Mr. Mackenzie on live issues  between Canada and the Province?  Oh, I do most strongly suggest that, my lord.  What  the position of Canada is in this case will not be  known for certain until the end of the day.  And I  made that argument yesterday.  And I will be very  surprised if at the end of the day Canada takes a  position on the main issues in this case which is  similar to either that of the plaintiff or --  COURT:  For this purpose it has to be adverse on the  pleadings.  PLANT: Well, I don't think the pleadings are very helpful.  May I say this though that will assist your lordship.  If your lordship is concerned with the counterclaim  THE COURT  MR. PLANT 22712  Submission by Mr. Plant  Ruling by the Court  Proceedings  issue, the question of who is responsible for dealing  with the plaintiff's claim, then I concede that Mr.  Mackenzie's cross-examination doesn't have the same  elements that it did in the case of Mr. Boys.  Mr.  Mackenzie's cross-examination is dedicated to such  contentious matters as where Mr. Boys worked, where  Mr. Giraud worked at the Red Rose Mine, where he  trapped on the Yukon telegraph line, and other issues  of that sort.  COURT:  Yes.  I think that the best I can do with these  insoluble problems is to rule the same as I did  yesterday.  I think in view of what I've heard that  Mr. Mackenzie's cross-examination should be treated as  not evidence in the case for any purpose except as  between the Province and Canada.  All right.  Everyone being agreed with that let's  proceed to the next question.  KOENIGSBERG:  I was just going -- procedurally I'm not quite  sure about tendering the transcripts.  Perhaps --  COURT:  They're all in.  KOENIGSBERG:  Well, Mr. Giraud's isn't.  And I take it —  COURT:  Oh.  Oh, I thought it was.  I guess I just reserved  the number.  KOENIGSBERG:  If it goes in can we apply the ruling for the  purposes of understanding what parts are in and what  parts out?  COURT:  Yes.  KOENIGSBERG:  So I will tender Mr. Giraud's —  COURT:  1214A, B, C and D.  KOENIGSBERG:  Yes.  I believe I identified them yesterday.  Perhaps for the record it might be clearer if I do it  again.  COURT:  It's August 18th, August 19th, September 16th and  September 10th?  KOENIGSBERG:  September 15th and 16th.  COURT:  My 16 looks like a 10.  KOENIGSBERG:  Yes.  COURT:  And are there exhibits?  KOENIGSBERG:  Yes, there are.  There are 46 exhibits.  COURT:  All right.  The index will be 1214E.  REGISTRAR:  Yes, my lord.  COURT:  And each exhibit will be given a 1214E number with  the appropriate tab number as well, but they need not,  as in the case of Mr. Boys, be separately marked as  exhibits.  REGISTRAR:  Thank you, my lord.  1  2  3  4  5  6  7  8  9  10  THE  11  12  13  14  15  16  17  18  MS.  19  20  THE  21  MS.  22  THE  23  24  MS.  25  26  27  THE  28  MS.  29  THE  30  MS.  31  32  33  THE  34  35  MS.  36  THE  37  MS.  38  THE  39  MS.  40  THE  41  THE  42  THE  43  44  45  46  THE  47 22713  Proceedings  Submission by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  (EXHIBIT 1214A: Deposition Evidence-Giraud-Aug.18/87)  (EXHIBIT 1214B: Deposition Evidence-Giraud-Aug.19/87)  (EXHIBIT 1214C: Deposition Evidence-Giraud-Sept.15/87)  (EXHIBIT 1214D: Deposition Evidence-Giraud-Sept.16/87)  (EXHIBIT 1214E: Index plus exhibits (1-46) marked on  depostion evidence of Giraud)  THE COURT:  Yes.  MS. KOENIGSBERG:  The matter in which the matter arose yesterday  with regard to an argument that's developed with  regard to the admissibility of, in this case,  fisheries records.  I think it might be easiest if my  friend Mr. Grant makes his submissions.  He indicated  to me -- I believe he may have indicated to the court  that he might truncate his submissions.  I'm not quite  sure what it is I need to respond to.  MR. GRANT:  I agree.  THE COURT:  Mr. Grant.  MR. GRANT:  Firstly, my lord, I asked my friend when she was  going to tender these, and she indicated after Mr.  Palmer.  So what I think the best way to approach this  is with respect to my objection with respect to the  Turnbull and Woloshyn ones which my friend has already  tendered in the sense that she's identified them.  And  I've reviewed --  THE COURT:  I'm sorry.  I'm not following this.  I thought they  were marked as exhibits and they're in evidence.  MR. GRANT:  No.  These have not been tendered.  This is the  fisheries report collection volumes one to three.  THE COURT:  I thought you were talking about —  MR. GRANT:  Loring.  THE COURT:  I thought you were talking about Boys' and  Woloshyn's.  MS. KOENIGSBERG:  I think we better straighten this out.  Yes,  volumes one through three were put forward containing  more records than those which could be proved by Mr.  Turnbull and Mr. Woloshyn.  The issue arose with  regard to documents being identified, described by Mr.  Turnbull actually.  THE COURT:  Oh, I see.  All right.  MS. KOENIGSBERG:  And those documents, in my view, are in and  were properly identified, but the issue arose with  regard to a particular document which pre-dated Mr. 22714  Submission by Mr. Grant  1 Turnbull's personal knowledge.  2 MR. GRANT:  You may recall I examined Mr. Turnbull and Mr.  3 Woloshyn yesterday, particularly Mr. Turnbull, on  4 those documents from 1931 to 1959 which were  5 identified by him as coming out of the Smithers file,  6 my lord.  7 THE COURT:  Yes.  8 MR. GRANT:  And I raised the question with him as to the lack of  9 knowledge about authenticity, accuracy, when it went  10 into the file, et cetera.  The reason I wanted to put  11 this matter over to this morning -- and I raised with  12 my friend two issues out of that collection.  I can  13 deal with these issues here.  Regarding the Turnbull  14 and Woloshyn documents, those identified by them, was  15 the question of the custody of those documents which  16 your lordship expressed some reservations when I  17 examined the witness.  I think my evidence on that  18 point was quite brief and I just said I wish to lay an  19 evidentiary foundation.  And in light of your  20 lordship's comments yesterday and in light of a  21 re-review of the business records rulings and  22 historical documents rulings you have made I am not  23 going to -- I am going to make some submissions with  24 respect to the admissibility of these documents in  25 part, not all of them, but some of them.  But I'm not  26 objecting -- I have concluded that my friend can get  27 the documents in three ways in this collection;  28 archival documents, business records or documents  29 written by the witness in the stand.  And I've  30 concluded that on the basis of that that even if my  31 friend has some problems thus far that she could  32 remedy those problems through additional evidence.  33 And that there's no utility in calling that additional  34 evidence.  So I am not arguing here that these  35 documents are -- cannot be put in that way.  But what  36 I am arguing very strongly, and what I want my friend  37 before going much further to set out, is the relevance  38 of a large, large portion of these documents.  And the  39 relevance of -- of major components of them.  And I'd  40 like to just take you to an example which my friend  41 has already dealt with which is at tab 143 of volume  42 three.  43 Now, there is some small part of this tab which I  44 concede is relevant.  There's evidence of a commercial  45 fishery at Babine Lake.  And as Mr. Macaulay  46 eloquently said in his opening, of course, the Babine  47 band and the Babine Lake is not within the area of the 22715  Submission by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  claim.  But your lordship in dealing with Mr. Morrell  and the Helgesen evidence found that there certainly  was a connection.  Mr. Goldie made exactly the same  objection at that time and your lordship overruled  that objection.  And so in that context to the extent  there's some marginal relevance I'm not going to  stress that, but then what we get into, my lord, is  part 2B, sports fishery, which is page one, two, three  and half-way down page four.  And I raised this, or  alluded to this yesterday.  I alluded to this  yesterday in the context of --  THE COURT:  I'm sorry, Mr. Grant.  I don't think I have the  right exhibit.  KOENIGSBERG:  It's volume three, my lord.  MS.  MR.  THE  MR.  THE  THE  MR.  GRANT  COURT  GRANT  COURT  COURT  GRANT  THE  MR.  COURT  GRANT  Volume three of Fisheries Report Collection.  I knew I didn't have the right one.  Tab 143.  Yes.  All right.  So what I was pointing to when you were starting at  the bottom of the first page and going through page  two, three and half-way down page four you have a very  nice discussion about the sports fishery.  This is  exactly the kind of evidence that was so strenuously  objected to as a reason why Mr. Morrell's report  should not go in.  The fact is there are sports  fishermen there.  My friends have led that through Mr.  Turnbull.  Fine.  That's the end of the discussion.  They don't have to get into all of this detail.  Then  they go into the Indian food fisheries in this  sub-district.  And that's half of page four and half  of page five.  Then we have -- and that's -- I don't  object to the relevance of that.  Then we have pages  five, six, seven and eight having spawning summaries.  And with all due respect, I say that is marginally --  it's -- I don't see the relevance of it at all.  What about all the maps the plaintiffs adduced about  all the spawning areas?  Well, these are spawning escapements to Babine  River.  And there may be some in one specific year,  1976.  I'm not as concerned about this evidence, this  particular portion of it, but in the context of the  entire report, these annual reports, my lord -- I  mean, what we face is we face let's dump everything in  and reserve on relevance and some day when Canada  argues they might raise this.  And I'm very concerned  about that approach, because we've scheduled the legal 22716  Submission by Mr. Grant  1 argument and we've scheduled the base and we are going  2 to deal with the substance.  We are not going to deal  3 with this kind of relevancy argument I hope over and  4 over again.  But, in any event, I have your point on  5 that.  And I think that there is some marginal  6 relevance to that, for 197 -- or 1980 or there.  7 There's then weather and water levels, and then we  8 have environmental multiple water use.  And we go on,  9 and the example is pages 11 through to 13 is an almost  10 weekly diary of Alcan and Kemano II.  And in some of  11 the reports there's news clippings of Alcan closing,  12 statements of Mr. Miltonburger, an employee of Alcan,  13 talking about bleeding hearts now that Alcan is shut  14 down, and it's just totally irrelevant and it should  15 be edited out.  I mean, it just -- my friend should  16 get to what they want in these reports.  And I find  17 this particularly problematic with the Turnbull  18 reports.  19 We go on, my lord, after that to report on 22K and  20 10K and a report on that.  Then we go on to page 14  21 industrial development, Equity Silver, Copper Hill,  22 Smithers Building Supplies, Babine Lake Forest  23 Products, a commentary on the Smithers golf course,  24 the Hudson's Bay Mountain ski complex, the Dairyland  25 Milk plant, Provincial Government Fish & Wildlife  26 reorganization.  27 THE COURT:  You can rule out the Smithers golf course, because I  28 don't play golf.  29 MS. KOENIGSBERG:  Your lordship surely could take judicial  30 notice that other people do.  31 THE COURT:  Well, I've never understood why.  32 MR. GRANT:  My lord, I concur with you on that.  And Provincial  33 Fish & Wildlife reorganization, the future industrial  34 growth.  My friends made something of obstructions and  35 diversions, and there may be some relevance there  36 although I haven't figured out what it is to their  37 case.  It's certainly not something obvious in their  38 pleadings, but I believe that.  Then we have the food  39 fishery, trends in the fishing industry.  We have four  40 lines on page 17, we finally come to something that  41 may have marginal relevance, and then there's a  42 discussion of enforcement.  To the extent it applies  43 to the Indian fishery that may have some relevance.  44 Now, that's the kind of thing you find throughout  45 the authored reports of Mr. Turnbull.  If you go to  46 the next one you can just look at the table of  47 contents and you see that from pages ten to 20 of a 23 22717  Submission by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. GRANT  THE COURT  MR. GRANT  page report is environmental and multiple water use,  and 12 to 18 is Kemano and a summary of all these --  second-hand summary of all these news clippings.  :  I see the force of your submission, Mr. Grant, but  is the game worth the candle, as Montaigne so  eloquently asked rhetorically.  Is there any need to  go through the process you describe with scissors and  paste and mutilate the relevancies out of these  documents.  What's the cost benefit ratio here?  :  Well, the cost benefit -- I'm focusing on the  Turnbull documents.  I don't think this applies to the  Woloshyn reports.  And I'm prepared to leave the  matter with respect to the other reports.  But I think  Mr. Plant, for once I agree with something that Mr.  Plant said this morning very ably, and that is that he  says that it's hard to determine what the federal case  is here.  And Ms. Koenigsberg agreed with me yesterday  that well over 90 percent of these reports may not  even be relevant.  Well, my lord, there is a prejudice  to the plaintiffs here.  I mean, what is the  relevance?  I mean, we don't know now if they say  well, wait until argument and you can argue relevance  and we can argue relevance.  What are we supposed to  do with this stuff?  Assume there's no relevance and  wait for our few days of reply to argue relevance.  I  mean, that is an absurd approach to this.  This is not  an overwhelming task.  We're talking about the reports  over the course of six years of Mr. Turnbull that I'm  focusing on.   If my friends say that there is  something in there they should say this is it.  They  should stand up now and say to your lordship this is  what is relevant.  I have a great deal of difficulty  with the entire federal case in terms of relevance --  in terms of relevance of some of the evidence they  propose to call, but this is a classic example of it.  Now, you're going to get, my lord, on the assurance of  my friend before the end of next week we are going to  have many more black volumes before your lordship, and  I mean, it's -- it's trial by paper terror in some  sense.  I mean --  :  There's all kinds of terror, Mr. Grant.  I don't  think anybody should be pointing fingers at anybody  else.  We've all indulged ourselves in that in this  case.  : I agree. But the thing is -- I say one thing about  the Province, at least the Province came out in their  pleadings and said this is what we say, and we know 2271E  Submission by Mr.  Submission by Ms.  Grant  Koenigsberg  1 what the Province's issue is with us.  It's pretty  2 clear.  The Federal Crown in their pleadings, my lord,  3 has done nothing more than deny.  They have not -- the  4 other day for the first time, and we will object to  5 evidence about this 'cause it's not raised in their  6 pleadings at all, the Province argues extinguishment,  7 diminishment, abandonment and acquiescence in their  8 pleadings.  The Federal Crown does not argue a single  9 one of them.  The very first time we found out about  10 that was when Mr. Macaulay in his opening raised it.  11 That's when we first found about it.  And it's not in  12 the federal pleadings.  And there has to be some  13 control with respect to that.  14 THE COURT:  Isn't there authority that says if there are  15 pleadings raising the issue in the case then the  16 pleadings are available to all parties?  17 MR. GRANT:  Well, my submission, my lord, is that in February of  18 1988 Mr. Macaulay took the plaintiffs to extreme task  19 and your lordship made directions that if the  20 plaintiffs were going to raise some of the issues,  21 which I say the Federal Crown is now raising in their  22 evidence, that the plaintiffs have to amend.  And I  23 conceded and agreed with your lordship the point that  24 you raised at that time with respect to that -- to  25 that issue.  But what I'm saying here, my lord, is do  26 we have to have six reports that over half of them  27 relate to the Kemano issue?  I mean, it's not at all  28 relevant and it should be excluded at this point.  29 MS. KOENIGSBERG:  My lord —  30 MR. GRANT:  We should cut back.  31 MS. KOENIGSBERG:  I told my friend this before I'm quite happy  32 to take it out.  If I had edited these things before I  33 proffered them into evidence I think my friend would  34 have been up on a different point.  35 THE COURT:  You're agreeable then to  —  36 MS. KOENIGSBERG:  If my friend really thinks that this is —  37 they're going to cripple his case I'm happy to take  38 out the environmental impact ones.  He cross-examined  39 on it.  I wondered why, but he cross-examined on the  40 Equity Mines pollution situation.  Mr. -- no question,  41 Mr. Turnbull has a literary turn of mind and is quite  42 full in his reports.  Much of it is not relevant from  43 the federal -- Federal Government's point of view.  44 And the reason that they were not edited in the first  45 place was that I thought we would meet more objections  46 for handing white out reports to my friend than if I  47 put it all in and we dealt with the obvious relevant 22719  Submission by Ms,  Proceedings  Koenigsberg  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR. GRANT  THE COURT  MR. GRANT  THE COURT  MR. GRANT  THE COURT  material.  But if it really is of major concern to  him, yes, we will take Terry Turnbull's reports and  take out all the environmental stuff, and anything  else that my friend thinks shouldn't go in that we  didn't lead evidence on.  Now --  :  I don't say it cripples my case, but I find even --  if my friend takes that proviso away that I'm pleased  that resolves this issue.  And in terms of the  tendering of the balance of them I think I'll wait  until my friend tenders them, and that we don't have  to argue.  But I wanted to say that my friend was  concerned about the custodial issue yesterday and I  wanted to consider it overnight and I think that there  are ways that these can be proven under the guise of  your lordship's rulings even if my friend hasn't done  it, and there's no point in going through those.  :  Thank you.  Well, subject to editing, and that will  be a matter for counsel to work out between them, and  come back to me if necessary, that issue seems to be  resolved.  And you agree then these books of documents  may be marked now?  : Well, I think my friend actually wanted me to raise  the issue now but she wants to tender the evidence of  Mr. Palmer before she tenders them and that's  satisfactory. I will correspond with my friend about  any other editing in terms of relevance, but I think I  highlighted one of the major examples and we can work  that out.  :  All right.  Mr. Grant, will you give consideration  to the question I just raised, that is if the  plaintiff were to sue A and B say in contract and they  defend separately and one pleads -- one defendant  pleads no consideration and the other doesn't, it's  always been my understanding that consideration being  an issue in the case by reason of the pleading of one  defendant that it's a defence available to both  defendants even though the second one did not plead  it.  Now, I don't recall an authority directly on  point, but that's based -- the base upon which I have  always understood litigation to be conducted that the  issues in the case are determined by the pleadings and  if the defence available to one is raised by another  then it's available to both of them.  :  Well, yes, I appreciate you raising it, because I  think it will come up in the course of the federal  case.  :  Pleadings are supposed to be facts not issues of law 22720  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  anyway, and I just raise that now because of your  statement that you're going to be arguing this in due  course, and I thought I would let you know that I have  a mind that is troubled by some pre-existing ideas on  it.  You might disabuse me of that.  MR. GRANT:  The only other point, of course, in the analogies,  of course, the plaintiffs -- and that was the issue on  February of '88 and is the issue we've been operating  up to now.  The plaintiffs, of course, have not sued  this second defendant.  THE COURT:  Yes, I understand that.  MR. GRANT:  Anyway, but I would like an opportunity to consider  that before we make those arguments.  THE COURT:  All right.  Thank you.  Well, we are making great  progress, Ms. Koenigsberg.  MR. PLANT:  I was just wondering, my lord, given my friend's  generosity with respect to the custodial issues in the  Turnbull's reports if he would be prepared now to make  the some admission in relation to the documents in  part two of Exhibit 1202, the Boys' commission  documents.  That's the only issue that could possibly  arise in respect of their admissibility now, and  frankly it would speed things along, save us all a few  late nights at the office if we could just dispose of  that one now too.  THE COURT:  I'm sure Mr. Grant will give that every  consideration.  MR. GRANT:  I'll give it every consideration, my lord.  THE COURT:  Thank you.  Ms. Koenigsberg.  MS. KOENIGSBERG:  My lord, I wonder if just I might address very  briefly my friend having raised this issue of the  Federal Crown's pleadings and what that entitles us to  lead evidence on and what it doesn't, because in  addition to the issue that your lordship raised, and  it's certainly always been my understanding of the  conduct of litigation, that issues raised unless  otherwise precluded are at large.  In my submission,  our pleadings, a denial of a specific assertion, means  that facts will be led and adduced in relation to that  denial.  So, for instance, if my friend asserts  ownership and jurisdiction or governance of the  territories under its own laws for the harvesting and  conserving of all the resources in it when the Federal  Crown, as it did on its pleadings, denies such thing,  in my submission it is at liberty and, in fact, bound  to adduce all evidence which it thinks is relevant to  that assertion pro and con.  Having led the evidence 22721  Proceedings  1 and having determined what the evidence is it is then  2 a matter of law as to whether it amounts to an  3 argument on the law, as to whether it amounts to  4 extinguishment, abandonment or whatever we are not  5 bound to plead the law.  And in my submission whether  6 even if the Province had not pleaded generally  7 extinguishment or abandonment we would be entitled to  8 lead evidence under the rubric of the denial of the  9 assertion made by the plaintiffs and then argue what  10 they amounted to in the end.  And I would certainly be  11 advancing that to your lordship in any event, but I  12 can't see, in fact, what the purpose is of leading  13 facts in relation to denials if you can't argue what  14 it means.  There are, of course, specific things you  15 have to --  16 THE COURT:  Well, there is a problem with your general  17 proposition, is there not?  I can understand what  18 you're saying in the sense that if the plaintiff says  19 we have occupied this land from time immemorial and  20 they embark upon the proof of it, they embark upon the  21 proof of occupation.  22 MS. KOENIGSBERG:  Yes.  23 THE COURT:  Then that fact has been pleaded and you can call  24 evidence to disprove it.  25 MS. KOENIGSBERG:  Yes.  26 THE COURT:  But you would not be entitled to call evidence of  27 facts not proved in somebody's defence -- in  28 somebody's pleading.  29 MS. KOENIGSBERG:  For instance, my lord, take the instance of  30 fisheries.  I suppose this is going to come up and I  31 may as well mention it now.  Take the instance of  32 fisheries, my friend pleaded specifically in their  33 Statement of Claim, and I think it's 57 or 63.  Well,  34 57 is a good one.  That's the one.  35  36 "Without restricting the generality of  37 paragraph 56, it's since time immemorial the  38 plaintiffs and their ancestors have:  39 (b) Harvested, managed and conserved the  40 resources within the territory, governed  41 themselves according to their laws, governed  42 the territory according to their laws,  43 spiritual beliefs and practices, maintained  44 their institutions and exercised their  45 authority over the territory through the  46 institutions."  47 22722  Proceedings  1 They then set out a complete list which has to  2 include the fishery.  And on their evidence included  3 the fishery.  And then in 58 say:  4  5 "The plaintiffs continue to own and exercise  6 jurisdiction over the territory to the present  7 time."  8  9 The Federal Government, reluctant bridegroom that  10 it is, comes forward and says not that we don't just  11 admit, we deny that.  We deny it, because we know that  12 there's a Fisheries Act, and we know that we regulate  13 the fishery, and that that impacts on the way of life,  14 and we lead evidence with regard to that.  15 Now, so far I don't think that there can be much  16 quarrel with our entitlement to lead that evidence.  17 What do we do with it?  Are we then not -- if we don't  18 say it in our pleadings and once we get to the end of  19 all this evidence it amounts to extinguishment,  20 abandonment, whatever the facts might suggest, are we  21 precluded from arguing it.  And in my submission we  22 are not.  23 THE COURT:  I think in a perfect world it might have been  24 convenient if you had denied that they managed the  25 fishery and went on and said, but we do manage the  26 fishery.  That is a separate fact from the one that  27 they -- that the plaintiffs have alleged.  I don't  28 know -- at the moment hasn't the Province pleaded  29 that, that Canada manages the fishery?  If you hadn't,  30 I don't recall.  31 MS. KOENIGSBERG:  I don't know.  I can't remember if that's one  32 of the specifics.  It certainly would be embraced.  33 THE COURT:  Certainly you have joined issue with the plaintiffs  34 on their management of the fisheries.  35 MS. KOENIGSBERG:  That's right.  36 THE COURT:  And you can call evidence to show that they did not  37 manage the fishery.  And subject to varying  38 submissions, I would have the view that the course of  39 this trial is such that the question of who managed  40 the fishery jointly or co-operatively is an issue in  41 this trial, but if we are talking about the perfect  42 pleading world then it may have been better to have  43 pleaded that you manage the fishery.  I haven't  44 studied the pleadings, and I'm not sure yet what -- at  45 the moment, but I certainly think that you have the  46 benefit from the point of view of what is relevant and  47 on what issues evidence may be adduced of your -- of 22723  Proceedings  1 the pleadings of your co-defendant.  2 MS. KOENIGSBERG:  Yes, I agree with that.  I suppose for another  3 day if we come down to the absolute niceties of this  4 we'll be dealing with it.  5 MR. GRANT:  Yeah.  Mr. Guenther was going to deal with this  6 argument.  He would like to advise you of something on  7 that point now.  8 MR. GUENTHER:  My lord, I'm sorry.  I wanted to focus the issue  9 so it's not left ambiguous.  Aside from the question  10 of the ability of a defendant to ride on the pleadings  11 of a co-defendant, which -- and I've been looking into  12 this issue somewhat.  I was not alive to it.  But  13 aside from that with respect to the comments just made  14 by my friend Ms. Koenigsberg it's one thing as the  15 discussion just focused upon to say that denial allows  16 a defendant to plead certain -- to prove certain facts  17 that would tend to contradict.  It is another to say  18 that that allows proof of a different fact, which is  19 what my friend starts to point to and that is the  20 federal management.  But that may not be as large a  21 concern to the plaintiffs as the further point that  22 was implied or suggested, and that is that aside from  23 the question of reliance on the Province's pleadings  24 that Canada can argue extinguishment which was raised  25 in the opening, because as has been pointed out in a  26 number of cases that deal with aboriginal rights,  27 extinguishment, and presumably diminishment or  28 abandonment, are conclusions of law that rest on very  29 particular facts.  None of those facts have been  30 pleaded by Canada.  Some of those facts have been  31 specifically pleaded by the Province.  And I submit  32 that that was not a pleading that was unnecessary.  33 That was an absolutely necessary pleading, because the  34 facts particularized, in here I'm referring to the  35 things like existence of statutory regimes and  36 particularly the actions of certain servants of the  37 Crown in pursuance of those schemes are facts that the  38 Province says justifies those conclusions.  I would  39 suggest and argue when the point becomes necessary  40 that Canada aside from the Province's pleadings is not  41 at all entitled to argue for instance the  42 extinguishment having pleaded no facts upon which they  43 could rest that assertion.  Not a fact pleaded in  44 their pleadings affirmatively upon which the court  45 could conclude extinguishment, diminishment or  46 abandonment.  And I would characterize that sort of  47 defense as an affirmative type of defense and must of 22724  Proceedings  R.N. Palmer (for Canada)  1 necessity be relied upon particular facts pleaded.  2 And that's -- that's why I wanted to rise to focus  3 that particular aspect, because if Canada cannot rely  4 on the Province who has pleaded such things then  5 ultimately we would argue that Canada cannot argue  6 that point.  7 THE COURT:  Well, I think that depends, as I think I've already  8 said, on whether the coat-tail sitting room is  9 available or not.  I always thought it was, but I'm  10 persuaded otherwise, and I will look forward to  11 hearing from counsel on that fascinating issue.  12 MR. GUENTHER:  Thank you, my lord.  13 MS. KOENIGSBERG:  My friends shouldn't take too much comfort in  14 the notion that we might have had to plead it, because  15 I think there's also a well established rule in this  16 court, in all courts, that pleadings can always be  17 amended right up to the last minute to conform with  18 the facts.  19 THE COURT:  Oh, we have the broadest possible powers of  2 0 amendment.  I'm sometimes reluctant to employ them,  21 but the course of the trial is, of course, an  22 important issue -- important factor to decide whether  23 to exercise that jurisdiction.  24 All right.  Where are we now?  25 MS. KOENIGSBERG:  I'm ready to call Mr. Palmer.  2 6 THE COURT:  All right.  Thank you.  27  28 THE REGISTRAR:  Will you stand, please, sir and take the Bible  29 in your right hand.  30  31 RODNEY NORMAN PALMER, a witness  32 called on behalf of the defendant  33 Canada, having first been duly sworn,  34 testified as follows:  35  36 THE REGISTRAR:  Would you state your full name and spell your  37 last name, please.  38 A   Rodney Norman Palmer.  P-A-L-M-E-R.  39 THE REGISTRAR:  Thank you, sir.  40 MS. KOENIGSBERG:  The Attorney General of Canada is tendering  41 Mr. Palmer, who's a fisheries biologist by education,  42 to describe and give opinions on the following topics;  43 one, the life histories of relevant fish species in  44 the claim area.  Two, the recorded history of the  45 Indian fishery in the claim area, and its regulation  46 from the regulator's point of view, that is as it  47 emerges from fisheries documentation.  Three, a brief 22725  R.N. Palmer (for Canada)  In chief by Ms. Koenigsberg  On Qualifications  1 history of the Indian participation in the commercial  2 fishery from the same point of view.  3 THE COURT:  In the participation —  4 MS. KOENIGSBERG:  Indian participation in the commercial  5 fishery.  6 THE COURT:  Does that mean commercial fishing generally or in  7 the territory?  8 MS. KOENIGSBERG:  In the territory.  No.  I'm sorry.  Generally.  9 It is not in the territory.  I should say the claim  10 area Indians participation in the commercial fishery.  11 THE COURT:  Oh.  12 MS. KOENIGSBERG:  And I will just put Mr. Palmers resume in  13 front of him and provide a copy for your lordship.  14  15 EXAMINATION IN CHIEF BY MS. KOENIGSBERG ON QUALIFICATIONS:  16 Q   Mr. Palmer, you received your BA in zoology and  17 biology from UBC?  18 A   Yes, that's correct.  19 Q   In 1957?  20 A   Yes.  21 Q   And since -- well, actually while you were a student  22 beginning in 1954 until 1986 you have been an employee  23 of the Department of Fisheries and Oceans?  24 A   That's correct.  25 Q   And you retired in 1986?  26 A   Yes.  27 Q   And beginning with your student days you were employed  28 between the years of 1957 and '71 as a fish biologist?  29 A   Yes, that's correct.  After my student -- after my  30 time as a student I -- beginning in '57 I worked as a  31 biologist.  32 Q   Okay.  And as a student you worked on fish biology  33 projects?  34 A   Yes, that's correct.  35 Q   As a student.  And you held positions with the  36 department off and on from '57 through '71 at both the  37 junior and senior biologist level?  38 A   Yes.  39 Q   Beginning in approximately 1971 you began to focus on  40 management of the fisheries as a junior and then  41 senior manager?  42 A   Yes, that's correct.  43 Q   And you became, for instance, in 1980 director of  44 policy, planning and development for the department  45 for the Pacific region?  46 A   Yes.  47 Q   And does the Pacific region take in British Columbia? 22726  R.N. Palmer (for Canada)  In chief by Ms. Koenigsberg  On Qualifications  1 A   Yes.  And the Yukon.  2 Q   And while working in a variety of capacities for  3 fisheries in senior management have you been involved  4 in the development of policy and programmes to  5 implement fisheries jurisdiction under fisheries  6 regulations?  7 A   Yes, I have.  8 Q   Have you worked in each of the sub-district offices in  9 the claim area?  10 A   Yes.  I've worked in the sub-districts, and worked in  11 and out of the offices that were run by the fishery  12 officers.  13 Q   And while you were working out of them were those  14 offices in Terrace and Smithers?  15 A   Yes.  16 Q   And were you stationed in Prince Rupert at one time?  17 A   Yes, I was.  I was resident in Prince Rupert in 1958  18 and 1959, and for years before and after that I was a  19 transient in and out of Prince Rupert and area very  20 regularly.  21 Q   And is Prince Rupert the district office to which the  22 sub-districts within the claim area report?  23 A   Yes.  24 Q   And did you hold a position which would have put you  25 in the position of being reported to by the  26 sub-district offices?  27 MR. GRANT:  When is my friend referring to?  The witness said he  28 was in Prince Rupert '58, '59.  Is that the time she's  29 referring to or when he was --  30 MS. KOENIGSBERG:  I'll ask the question.  Hold on.  31 Q   Can you tell us when you were there in, I guess we  32 could call it a supervisory capacity?  33 A   That was from 1971 through '76.  I was first at the  34 division chief level responsible for the area that  35 included the -- those two sub-districts, and following  36 that for a period of about two years I was at the next  37 level management with broader responsibilities, but it  38 still included those two sub-districts.  39 Q   While employed as a senior manager have you as part of  40 your various duties looked at reporting procedures and  41 made recommendations and suggestions as to how they  42 might be improved or maintained?  43 A   Yes.  As a manager beginning in '71 I regularly  44 received copies of reports in the field and gave  45 direction on what they should contain and how they  46 should be held and distributed.  47 Q   Now, I'd like to focus, if we can, a bit on your 22727  R.N. Palmer (for Canada)  In chief by Ms. Koenigsberg  On Qualifications  1 specific experience in the claim area or adjacent  2 areas.  Where within the claim area have you worked?  3 And can you tell us when.  And let's begin with 1954.  4 A   Okay.  My first involvement in the claim area was in  5 1954.  Excuse me.  I worked for about six weeks on the  6 Bulkley River at Hagwilget.  7 Q   And that was when you were a student?  8 A   That's when I was a student.  I was assistant on a  9 field party.  10 Q   Okay.  And in 1956?  11 A   In 1956 I did some work on the Nass River mostly  12 outside the claim area at Meziadin and on the Tseax  13 River, but very close to the boundary of the claim  14 area, and involving to some degree stocks that would  15 involve the claim.  16 Q   All right.  And then between 1957 -- excuse me, 1957  17 to 1966?  18 A   Okay.  During the period 1957, '59 my major project  19 was on the Nass River watershed.  I was doing surveys  20 throughout the watershed with both outside the claim  21 and within the claim on the system such as the  22 Meziaden.  I was on Bowser Lake, Damdochax, the  23 Kwinageese system.  On some occasions I was elsewhere;  24 Morice Lake, Babine Lake, but to a limited extent.  25 Beginning in 1960, for between about 1960 and 1965 or  26 six I did surveys on the -- on the Bulkley River  27 system including Moricetown, Morice Lake and river,  28 the Nanika River, and I did some work at Babine.  I  29 also continued with some work on the Nass River and  30 some on other parts of the Skeena.  31 THE COURT:  Is it a convenient to take the morning adjournment?  32 MS. KOENIGSBERG:  Yes.  33 THE COURT:  Thank you.  34 THE REGISTRAR:  Order in court.  Court stands adjourned for a  35 short recess:  36  37 (PROCEEDINGS ADJOURNED)  38  39 I hereby certify the foregoing to be  40 a true and accurate transcript of the  41 proceedings herein to the best of my  42 skill and ability.  43  44  45  46 Peri McHale, Official Reporter  47 UNITED REPORTING SERVICE LTD. 22728  R. N. Palmer (for Canada)  In chief by Ms. Koenigsberg  on qualifications  1 (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Ms. Koenigsberg.  5 MS. KOENIGSBERG:  My lord, I think we were somewhere in the  6 1960s in the claim area.  7 THE COURT:  Yes.  8 MS. KOENIGSBERG:  9 Q   When we broke for the morning adjournment, I think you  10 were telling us about work that you did in the sixties  11 in the claim area.  You had mentioned work on the  12 Bulkley River and in Moricetown?  13 A   Yes.  14 Q   And can you continue with that?  15 A   I think I had about covered that.  I had -- from 1960  16 to '66 I was working as a field biologist and had  17 projects in and around the claim area which included  18 the Bulkley River, Moricetown, Morice Lake, Nanika  19 River.  Some work at Babine.  Some work on the Skeena.  20 And some work again on the headwaters of the Nass  21 system.  22 Q   And during that time period when you were working in  23 the claim area, would you have been working out of,  24 from time to time, the subdistrict offices?  25 A   Yes.  26 Q   And then in the 1970s were you again in the claim  27 area?  28 A   Yes.  In 1971 I was appointed as the chief of the  29 North Coastal Division which gave me responsibility  30 for management of fisheries in -- the fishery  31 statistical areas.  One of the five which included the  32 Nass River fishery and Nass River watershed, the  33 Skeena River fishery and the Skeena watershed and some  34 coastal areas south of Prince Rupert.  35 Q   Okay.  And would you go into the claim area from time  36 to time?  37 A   Yes.  I can't exactly recall how frequently, but part  38 of my job would be to go to places like Smithers and  39 Terrace, meet with fishery officers, observe.  I flew  40 the country quite often and stopped in various places.  41 Q   All right.  And when you talk about the Terrace area  42 in relation to -- or Terrace office in relation to the  43 claim area, is that where the fisheries office with --  44 with the administrative jurisdiction that went into  45 the claim area which is now taken over by the Hazelton  46 office?  47 A   That's correct. 22729  R. N. Palmer (for Canada)  In chief by Ms. Koenigsberg  on qualifications  1 Q   Is that where that is located?  2 A   Yes.  3 Q   Now, when you were in the offices in the claim area,  4 did you get to know the personnel or the fisheries  5 officers?  6 A   Yes.  7 Q   And when was your first exposure, if I could put it  8 that way, to the fisheries officers' reports?  9 A   I believe my first exposure was when I was doing field  10 surveys back in 1957 as a regular part of a fisheries  11 management study of that nature which in those days  12 was largely exploratory.  We were investigating fish  13 stocks within -- at that time within mostly the Nass  14 River.  And then a little later on the Bulkley system.  15 A routine part of that is to read the available  16 information on the systems.  That would include  17 reading some technical reports, but it also meant  18 going to what was available to us in the way of old  19 fishery officer reports, sometimes the reports of the  20 department.  And I can recall reading reports that  21 were put out by the provincial -- the commissioner of  22 fisheries, for example.  23 Q   And later on in your career were you the recipient of  24 reports, that is in the hierarchy did fisheries  25 officers from the claim area report directly to you?  26 A   Fishery officers within the claim area reported  27 directly to a supervisor in Prince Rupert who would --  2 8              who reported to me.  And he would routinely forward to  29 me the copies of certainly annual reports, and  30 frequently weekly reports.  I made it a habit as a  31 manager at that time to review as much as possible the  32 weekly reports of the field officers because it kept  33 me aware of and sensitive to what was going on.  34 Q   Now, if we just look very briefly at your C.V., and we  35 turn over to page 3 because that's the beginning of  36 your career as a biologist.  We see that in 1958, '59  37 you were a district biologist?  38 A   Yes.  39 Q   And you were working in Prince Rupert at that time?  40 A   That's correct.  41 Q   And then you moved on to become management biologist  42 for the Resource Development Branch?  43 A   Yes.  44 Q   And there you were again concerned with fish stocks  45 and fisheries in the claim area?  46 A   Yes.  Both within the claim area and in other parts of  47 the province.  But in the summer salmon season I was 22730  R. N. Palmer (for Canada)  In chief by Ms. Koenigsberg  on qualifications  1 primarily involved in and around the claim area at  2 that time.  3 Q   And then ultimately we see in '71, '74 at the top of  4 the page that you then became chief of the North  5 Coastal Division, Northern Operations?  6 A   Yes.  7 Q   And you've described what you did in that respect.  8 And you continued in a management function with the  9 types of duties that are described here.  And I won't  10 say culminating completely, but seeming to culminate  11 in about 1980 when you became director of policy,  12 planning and programme development?  13 A   That is certainly correct from '74 to '76 where for  14 about two years I was assigned to the job of manager  15 of Northern Operations which basically encompassed the  16 northern half of B.C. and the Yukon.  And it was a  17 somewhat more broader based job than my former  18 position of chief of division.  But from '76 to '78 I  19 was in a headquarters -- regional headquarters  20 administrative role.  I ran -- I managed the internal  21 systems of the department and was not really very  22 involved with the management of the fishery during  23 that period.  24 Then in 1978 to '80 I moved back into my  25 profession more again.  I became -- I went into a  26 senior biology position as the chief of the Management  27 Biology Support Unit where I was the senior biologist  28 of a group of 30 odd biologists and technicians who  29 were now doing the kind of job that I used to do in  30 the sixties .  31 Q   Okay.  In this position when you were concerning  32 yourself with policy, was it part of your function to  33 go back in time to go over old reports and that sort  34 of thing in your planning for new policies and --  35 MR. GRANT:  I would ask if my friend could direct the witness to  36 the area she is asking about.  I ask her not to lead  37 in this area.  I would like to hear what he says and  38 not my friend.  39 MS. KOENIGSBERG:  40 Q   Sure.  Could you describe what was involved in your  41 planning functions and your policy implementation  42 functions, particularily with regard to 1980, '82?  43 But if there is another period of time in which you  44 did that and which you were concerning yourself with  45 managing how the, for instance, reporting procedures?  46 A  Well, during that '80 to '82 period I was involved  47 primarily in the overall planning for the region.  I 22731  R. N. Palmer (for Canada)  In chief by Ms. Koenigsberg  on qualifications  1 didn't get too involved in specific planning for  2 various fisheries.  There would certainly be some  3 reference to old reports.  I would doubt that very  4 frequently at the field office -- at the fishery  5 officer level.  But reports of the department and that  6 sort of thing.  It was more planning at a higher level  7 of the umbrella management policy for the department.  8 Q   Okay.  Now, when you undertook the project of this  9 report, of the report that we are going to seek to put  10 before the court, what was the specific project that  11 you were given?  12 A   I was asked to do a report outlining the -- basically  13 the history of the management of the fishery in --  14 fisheries relevant to the claim area, as I understand  15 it, in 1986 when I started.  That included examination  16 of the commercial fishery and to some small degree the  17 recreational fishery but with emphasis on actual  18 fisheries within the claim.  But it also -- I  19 understood it to include a study of the review of the  20 salmon and steelhead stocks in fall.  I basically  21 understood we wanted a summary report of what we knew  22 about the stocks and their management harvest or  23 regulation on harvest.  And, in particular, the  24 history of the regulation of the fishery.  25 MS. KOENIGSBERG:  Those are all my questions on qualifications,  2 6 my lord.  2 7 THE COURT  2 8 MR. GRANT  2 9 THE COURT  3 0 MR. PLANT  31 THE COURT  Thank you.  Mr. Grant.  Yes.  I'm sorry, perhaps I should ask Mr. Plant first.  I have no questions, my lord.  Thank you.  Mr. Grant.  32  33 CROSS-EXAMINATION BY MR. GRANT:  34 Q   Were you given a letter of retainment or a letter  35 instructing you as to what to do with your report?  36 A   No.  37 Q   How were you instructed?  38 A   I was instructed through meetings with counsel.  39 Q   With Ms. Koenigsberg and --  4 0 A  And Mr. Macaulay.  41 Q   Okay.  Mr. Palmer, I take it that in 1957 zoology was  42 in the arts faculty rather than the science faculty?  43 A  At that time it was called the Faculty of Arts and  44 Science.  But the University of B.C. only issued a  45 B.A. degree at that time.  At some point after I  46 graduated they went to the two degrees, the B.A. and  47 the B.Sc? 22732  R. N. Palmer (for Canada)  Cross-exam by Mr. Grant  on qualifications  1 Q   Well, you have not had any further academic experience  2 or qualifications with respect to biology after 1957,  3 have you?  I'm just referring to your resume?  4 A  As of — as of 1957 I had my B.A. in biology.  But I  5 also had a few, and I can't say exactly how many, but  6 at least two or three additional biology, zoology  7 courses beyond what I required for the degree.  I was  8 at U B.C. for four years following one year at what  9 they call senior matriculation in those days in  10 Kamloops.  I made a decision to go into biology after  11 my first year.  And I had to take some -- some pre --  12 excuse me, prerequisites --  13 Q   Okay.  14 A   -- in the second year which meant I got an extra year  15 which allowed me to take more courses.  16 Q   Okay.  17 A   Yes.  18 Q   I don't think you understood my question.  19 A   I'm sorry.  20 Q   What I asked you was after you got your B.A. you did  21 no further academic work in biology.  That is you  22 didn't do any postgraduate work in biology or zoology?  23 A   No, not beyond review of the literature that I worked  24 with.  25 Q   Well, you didn't do --  2 6 A   No.  27 Q   -- any academic --  2 8 A   No.  29 Q   -- work at a university or college?  30 A   No, none.  31 Q   And as I understand it, from even before you completed  32 your B.A. in biology you have worked continually for  33 the Federal defendant's Department of Fisheries &  34 Oceans or its predecessor?  35 A   Yes.  36 Q   You have done no independent work or worked for no  37 other independent third party?  38 A   Not in fisheries.  39 Q   With respect to any of the areas of which your report  40 purports to cover?  41 A   No.  42 Q   In 1954 you said that you were in Hagwilget.  It  43 wasn't clear to me from your resume, but be that as it  44 may, you were there as a summer student '54 to '56,  45 May to September.  I gather you were only there in  46 that one year for six weeks.  Was that with respect to  47 the project for the blasting of the rocks at Hagwilget 22733  R. N. Palmer (for Canada)  Cross-exam by Mr. Grant  on qualifications  1 Canyon?  2 A   It was a project to -- it was certainly well before  3 the removal of the rocks.  It was a project to assess  4 the extent of the obstruction of migration at that  5 point.  There was no decision about removal at that  6 point.  7 Q   It was a --  8 A   It was —  9 Q   You were doing a study to determine whether or not the  10 rocks were an obstruction and should be blown away?  11 A   Yes, that's right.  12 Q   And do you recall what your recommendations were?  13 A   I was a student assistant on the party.  I made no  14 recommendations.  15 Q   You didn't write any of them?  16 A   No.  I wrote nothing in the report.  17 Q   Okay.  Now, then you say in 1956 you were at Meziadin.  18 I didn't take it where else you were.  You were on the  19 Nass.  That's outside the claim area?  20 A   Yes.  21 Q   You didn't do any work at that period of time on the  22 Bulkley or Skeena watersheds?  23 A   Not 1956, no.  24 Q   Okay.  Or the Babine watershed?  25 A   No.  26 Q   So you didn't do any work in 1956 in the claim area?  27 A   No.  On the Nass, but outside the claim area.  28 Q   Okay.  Was that on the commercial -- with respect to  29 the commercial coastal Nass fishery, or inland Nass  30 fishery?  31 A   It was a study of the fish stocks.  It was --  32 Q   Well, where did you conduct it, on the coast?  33 A   No, in the inland area.  34 Q   In the spawning area?  35 A   Yes.  On the migration routes and on the spawning  36 grounds.  37 Q   Okay.  1960 to '68 — I'm sorry, 1958, '59 you were  38 the resident biologist in Prince Rupert.  Would it not  39 be fair to say that at that time while you were up  40 there that the primary function of the resident  41 biologist was with respect to the coastal commercial  42 fishery?  That was the most important component of  43 your work at that time?  44 A  Actually, at that time it wasn't.  The group I  45 belonged to the Resource Development Branch or Fish  46 Culture Branch, it had different names at different  47 times, was primarily involved at that time in stock 22734  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  Q  A  MS.  R. N. Palmer (for Canada)  Cross-exam by Mr. Grant  on qualifications  assessments.  And in some parts of the region on --  they were beginning to do impact assessments on  habitat on things like hydro electric developments and  obstructions to migration, that sort of thing.  We  were not, and I certainly wasn't participating in  providing advice towards management of the commercial  fishery.  That came at a later stage or at a later  time.  I was doing -- in '58, '59 I was occasionally  sent on inspections of streams or whatever by the  district supervisor who wanted my opinion on habitat  impact or on the condition of the fish run.  But the  bulk of my effort during that time was spent on  surveys that we had underway on the Nass at that time.  Okay.  Where we were attempting to dilineate the fish  population and the distribution and abundance.  Q   But you knew at that time that the importance of  determining the abundance of those fish runs was for  the purposes of management of the commercial coastal  fishery which is where the highest number of fish were  taken at that time. You would agree with that?  KOENIGSBERG:  Excuse me, I think we are on qualifications  here.  MR. GRANT:  Yes, we are.  MS. KOENIGSBERG:  I don't know if my friend has some concern  about the commercial fishery in some other way.  But I  really don't see what relevance it is to his  qualifications.  I am going to repeat what my friend has just said  when we come into what the qualification or why she is  tendering this witness on the commercial fishery.  I  want to know what he -- he is a district biologist for  a year.  I just want to know what the focus is.  Now  I've got it clear that he is on the Nass.  I want to  know what aspect of the fishery he is analyzing.  Well, all right.  Qualifications --  cross-examinations on qualifications never used to  take more than five minutes.  We seem to be able to  spend considerably longer at it.  I don't think my cross-examination will be too long.  Thank you.  You can go ahead.  A lot of this material, my lord, is not apparent in  the C.V., that's all.  Q   So with respect to this, you agree with what I said  that the purpose of your study was with respect to  advising on stocks?  A   Not ultimately.  The reason why the Nass survey got  MR. GRANT:  THE COURT:  MR. GRANT  THE COURT  MR. GRANT 22735  R. N. Palmer (for Canada)  Cross-exam by Mr. Grant  on qualifications  1 underway in 1957 and ran through '57, '59, there were  2 two reasons.  One was an assessment of an obstruction  3 at Meziadin Falls which could link back to improving  4 production, and therefore affect the commercial  5 fishery.  But the other very important reason was that  6 the Nass had been proposed for hydro electric  7 development at that time.  8 Q   Okay.  9 A  And the department was pressed to -- it was an  10 expensive survey, but it was pressed to move in.  11 Q   Okay.  12 A  At a later date obviously the data we gathered began  13 to be used in planning for regulation of the Nass  14 fishery.  But not at the time that I was initially  15 involved.  That was not the intent.  16 Q   By the Nass fishery, you mean the commercial coastal  17 fishery arising out of the Nass fish, that's what you  18 are referring to?  19 A   Yes.  Or presumably it may have involved the Indian  20 food fishery on the Nass.  21 Q   Okay.  One of the -- so would -- if I summarize what I  22 understand your experience has been with the  23 department, Mr. Palmer, would it be fair to say that  24 as far as your biology experience it is focused on  25 studies of the fish runs and impediments or causes of  26 increases or decreases in those fish runs, that's  27 really what you've been studying in your biology  28 aspect?  And I am not trying to be unfair to you.  2 9 A   No.  30 Q   That's what I understand from your evidence.  If I am  31 mischaracterizing it, you can correct me.  32 A   The one addition would be that -- the one addition  33 that I can think of was that I was also involved in  34 stock enhancement which is a spin-off.  Using like  35 hatcheries or spawning channels to improve or increase  36 the production of fish.  37 Q   And that was later on -- was that later on in your  38 career?  39 A  Well, I worked at -- we operated a sockeye had  40 hatchery on the Nanika River roughly between 1960.  It  41 may have even been started in '59 to about '65, '66.  42 That was part of my -- of the work I did on the Nass  43 or on the Bulkley system.  4 4 Q   And —  45 A  And I had some limited involvement with the early  46 planning for the spawning channels in Babine which  47 were built beginning in the sixties. 22736  R. N. Palmer (for Canada)  Cross-exam by Mr. Grant  on qualifications  1 Q   Okay.  So from around 1971 when you become North Coast  2 Division -- chief of the North Coast Division you  3 indicated that you were managing the multi-discipline  4 team of 40 person years.  And you dealt with  5 management and regulation of fisheries in the north  6 coastal area.  And this would be, you say, fishery  7 statistical areas one to five.  These are the coastal  8 fishery areas, aren't they?  9 A   Yes.  10 Q   And that would be the primary aspect of the people  11 working under you?  That would be -- over half of the  12 work would have been with respect to the coastal  13 commercial fishery, I assume.  If it's like it is  14 today, that's what I understand.  15 A  Well, a substantial part of it would be, yes.  16 Q   And you indicated of course in the course of your work  17 you went down to Smithers and Terrace.  You don't know  18 how often you went to the Smithers or Terrace offices?  19 A   During the '71 to '74 period?  20 Q   Yeah.  You said you can't recall.  21 A   No.  22 Q   And you would get reports from officers from Smithers  23 and Terrace?  24 A   Yes.  25 Q   As a chief.  But you didn't do much hands-on work in  26 the area in '71 to '76, that is in the -- in the  27 Skeena, Bulkley or the land claim -- the territory the  28 Gitksan or Wet'suwet'en are claiming in this action?  29 A   No.  I wasn't doing field surveys or patrol, no.  30 Q   So basically your primary involvement in the area  31 would be going down and meeting with officers that  32 were working under you?  33 A   Yes.  Or on occasion going to a particular location to  34 inspect some happening or some problem in the area.  35 For example, the -- during the construction of the  36 rail line along the Bear Lake, for example.  I can  37 recall that as one trip going into -- for an on-site  38 inspection and an overflight of the right of way.  39 Q   That would be quite rare in that five-year period for  40 you to do that in the land claim area?  41 A  Well, I would make trips like that perhaps a few times  42 a year.  43 Q   Okay.  Well, you've described Bear Lake.  Do you  44 remember anywhere else that you went in the land claim  45 area for an on-site inspection?  46 A  Well, I was certainly into Babine several times, that  47 is outside the land claim. 22737  R. N. Palmer (for Canada)  Cross-exam by Mr. Grant  on qualifications  1 Q   Yeah.  2 A   But coming out of Prince Rupert we would perhaps go by  3 air and fly the Skeena, that type of thing.  4 Q   But would you fly on private government jets?  5 A  Well —  6 Q   Or on commercial flights?  7 A  Well, hardly jets, but on charter aircraft.  Charter  8 aircraft, not scheduled flights.  9 Q   Mh'm.  And you stopped, I gather, your biology work  10 really after '68, or after '71, I should say.  You  11 were more into the policy -- immersed in the senior  12 management, middle and senior management of the  13 department, is that fair to say?  14 A  Well, from -- after '66 I worked until '71 I worked --  15 I continued to work as a biologist.  And, in  16 particular, on stock assessments relevant to  17 management of the fishery.  And at that time as a more  18 senior biologist I was making recommendations on the  19 regulation of those fisheries.  Then beginning in 1971  20 I basically no longer worked as a biologist.  21 Q   Right.  22 A   I was working as a broader manager regulating  23 fisheries.  24 Q   And as a senior biologist you were working in  25 Vancouver, I gather?  26 A   Yes.  27 Q   And you have continued to work in Vancouver since --  28 well, the '71 to '74 period you were based in Prince  29 George -- or Prince Rupert, I should say, were you?  30 A  When?  31 Q   '71 to '74?  32 A  Well, actually, I was resident in Vancouver but I wore  33 out my shoes commuting to Prince Rupert and elsewhere.  34 Q   So basically except for your '58 to '59 experience in  35 Prince Rupert you have been based in Vancouver in your  36 jobs?  37 A   Yes.  38 Q   And one of the tasks that you were asked to do for  39 this report related to analyzing the fishery's early  40 fishery reports and early historical records relating  41 to fishery in the land claim area?  42 A  Mh'm.  43 Q   I understand you gave that evidence.  That's the first  44 time you have done that kind of analysis, isn't it, of  45 the fishery in the land claims area?  46 A   I have certainly read those early reports.  The early  47 reports of the department and of the B.C. Commissioner 22738  R. N. Palmer (for Canada)  Cross-exam by Mr. Grant  on qualifications  1 of Fisheries and some fields reports for various  2 fisheries including the Nass.  3 Q   When?  4 A   Part of which is in the land claim area.  5 Q   When?  6 A  And -- when did I read those?  Beginning in the 1950s  7 when I was doing the stock assessment studies.  8 Q   Oh, I see, for that assessment?  9 A   Yes.  I see that as a normal part of that type of  10 study where you are trying to learn about the stocks,  11 learn about the biology in an area to assess what  12 is --  13 Q   Mh'm.  14 A   -- already been known --  15 Q   Mh'm.  16 A   -- and been done.  17 Q   But you refer in your report, for example, William  18 Brown.  You have never really looked at these  19 non-departmental files before with respect to the  20 fishery in the claims area, have you?  21 A  Are you referring now to the Hudson's Bay records?  22 Q   The Hudson's Bay records, yes.  Or did you have  23 earlier dealings with those?  24 A   I never had direct access to the actual Hudson's Bay  25 records.  What I had access to was summaries of  26 information extracted by other fisheries workers on  27 references to fish.  For example, the ones of Brown  28 and perhaps Charles Ross, the Fort Babine journals.  2 9 Q   Mh'm.  30 A   There were extractions made, I believe, in the sixties  31 of references in those journals to numbers of salmon  32 and movements of fish which I read some years ago.  I  33 can't tell you exactly when I read it, but --  34 Q   But you can't recall if those references you are  35 referring to were references that related to the land  36 claim area or outside of the land claim area, can you?  37 You didn't —  38 A  Well, there were references to the Hudson's Bay's  39 observations at Babine.  40 Q   Okay.  41 A   They —  42 Q   For what purpose were you looking at those?  43 A   I would say that I received a copy of those -- of the  44 extracts.  And I read them as part of my general  45 knowledge of the fish stocks of the Skeena.  I was --  46 it was done by a colleague who worked at the  47 biological station in Nanaimo which is the research 22739  Submissions by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  Q  A  Q  A  Q  A  A  A  MR. GRANT  THE COURT  MR. GRANT  arm of the department.  Who was that?  Mr. Aro.  Have you done any analysis of Indian participation in  the commercial fishery prior to being asked to do this  for this report?  I don't recall doing any analysis of my own.  But I  was -- as a manager I was aware of studies and the  department's interest and concern about the subject.  And I was generally aware of what was -- of the  purposes of assistance programmes such as I.F.A.P. and  so on, and the reasons why these programmes were  brought in.  But, no, I did no studies per se of my  own.  So this is really the first time you've done any  analysis of that?  Yes.  And I would say that what I did was summarize  the results of work of people who are more expert in  that area than I am.  Right.  And, in fact, with respect to the historical  material what you did was you have summarized what you  have read; is that right?  That's what you did in  terms of looking at the --  My understanding of it is I applied my knowledge of  fisheries to the historical records and summarized  what happened as I understood it.  Summarized what happened based on what the historical  records said?  Yes.  :  Those are my questions on qualifications, my lord.  :  Thank you.  Mr. Grant, are you going to go first?  :  Well, there are two arms of this, my lord.  I do not  object to this witness -- I think it goes to the fact  that this witness is really an employee of the federal  defendant is just a question that goes to weight.  I  do not dispute that this witness is a fisheries  biologist qualified to describe the life history of  relevant species in the area.  There is no question  about that.  With respect to the second arm, I think that this  witness is qualified to talk about the recorded  history of Indian fishery and regulations from  fisheries documents.  But I want to come back to that  in a moment.  And the third area, the history of  Indian participation in the commercial fishery from  the fisheries' point of view, I think, my lord, that 22740  Submissions by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. GRANT  THE COURT  MR. GRANT  even within the broad, broad, broad spectrum that you  have let in latitude of expert witnesses, this witness  I think quite honestly and forthrightly has said that  he has basically summarized what people who know  better about it have done.  Well, with respect to  that, I say that this witness is not qualified to talk  about that.  But maybe that argument is subsumed by what I wish  to say about the second and third areas which -- which  is this, my lord -- or the third area.  I should say  the third area.  The history of Indian participation  in the commercial fishery from the fisheries' point of  view has absolutely no relevance in this case.  What about the question of managing the resources?  Managing the resources?  The plaintiff —  Well, the commercial fishery is outside the claim  area.  This is the fact that -- that Indian people  from the claim area go down to the coast and are  engaged in the commercial fishery.  There is one area  of evidence that the province has raised and made an  issue of, and that is the question of fisheries  permits which they -- and I incorporate -- they  incorporate through Mr. Laurie Gordon's affidavit and  through that issue, that area.  And that may be as  it -- that may stand or fall as it is.  But, my lord, this is exactly the problem that has  been raised by the issue.  And when it came to that  area of Mr. Morrell's reports in which he discussed  area four, area five, all of the coastal commercial  fishery, the Alaska fishery, how it impacted on the  fish in the claim area your lordship was very, very  clear on that point in terms of -- in terms of the  relevance.  He said, well, it deals with the abundance  of fish.  And there was fish up to -- and he says why  do we have to go -- you said, why do you have to go  beyond that?  If that applies to the fish, with all  due respect it applies to the Gitksan and  Wet'suwet'en.  There were Gitksan and Wet'suwet'en that went and  fished at the coast.  The evidence of that will stand  or fall on the fishing permits.  This witness can say  nothing about that.  Mr. Gordon is in a better  position than this witness to say anything about that,  and the Federal Crown has decided they are not calling  Mr. Gordon.  The province has called him through his  affidavit.  The history of Indian participation in the 22741  Submissions by Mr. Grant  1 commercial fishery from the fisheries -- from the  2 fishery point of view, and that's the other point  3 which taints this evidence in this respect is, is not  4 an expert to give some form of objective -- objective  5 point of view.  This is the regulator's point of view  6 overtly.  7 Now, what relevance does it have as to the  8 regulator's point of view?  If it is relevant, and I  9 say it doesn't come out of the pleadings of the  10 Federal Crown.  And exactly what Mr. Guenther was  11 raising with you that the Federal Crown has not made  12 that affirmative fact that not only the Gitksan have  13 given up their jurisdiction because they have gone to  14 the coast to fish, at which point we could have asked  15 for particulars.  But, of course, we were precluded  16 from it because they just denied.  17 The situation is that that particular area is  18 entirely irrelevant to this case.  There is no point  19 with respect, my lord, and nothing will stand or fall  20 on the fact of the history of Indian participation in  21 the commercial fishery.  And I ask that this witness  22 be restricted from giving opinion evidence.  Opinion  23 evidence, if we may call it that.  It is second-hand  24 opinion evidence.  But even if -- and I say that that  25 is one of the frailties.  And the second frailty is  26 the question of relevance.  27 This is, with respect, I think it is quite late in  28 the day for my friends to now suggest as they did  29 earlier, well, if we had to plead on the facts we  30 could plead them on an Amended Statement of Defence as  31 Ms. Koenigsberg said.  But as the pleadings stand,  32 there is absolutely no relevance to this.  And if  33 there was relevance to this from the province's point  34 of view, the province could have called a witness for  35 that.  But this issue I say doesn't -- it is  36 completely outside the claim area.  37 I did not object to Mr. Turnbull and Mr.  38 Woloshyn's evidence of Indian people fishing in the  39 claim area of the scope of the Indian fishery and  4 0 methods, and we have heard lots of that evidence.  And  41 this witness may say something about that as well,  42 that is not the area.  But when we start talking about  43 a second-hand opinion of brief history of Indian  44 participation of the Indians in the commercial fishery  45 from the fisheries officer's of view I say that is  46 quite irrelevant.  And the witness should not be  47 qualified to give evidence on that area based on the 22742  Submissions by Mr. Plant  Submission by Ms. Koenigsberg  1 lack of qualification, but certainly on relevance.  2 THE COURT:  Mr. Plant.  3 MR. PLANT:  I don't know whether your lordship should hear me  4 now or after.  5 THE COURT:  Yes.  I think Ms. Koenigsberg should have the last  6 chance.  7 MR. PLANT:  I only wish to speak briefly to the issue of  8 relevance, my lord.  Paragraph 57 in the plaintiffs'  9 Statement of Claim the plaintiffs claim that they have  10 from time immemorial and subsequent pleadings say they  11 continue to live within the territory, harvest,  12 manage, conserve resources within the territory and so  13 on, maintain institutions within the territory.  The  14 Federal Government now proposes to call a witness who  15 will say, they do things outside the territory.  The  16 inference that may arise, my lord, is that the  17 plaintiffs do not do within the territory what they  18 claim to do because they are so busy or have been so  19 busy down at the coast participating in the commercial  20 fishery.  And I say that this evidence is entirely  21 relevant.  22 THE COURT:  Ms. Koenigsberg.  I don't need to hear you on the  23 first two points.  Your friend has conceded them.  It  24 is this question of the brief history of claim of the  25 Indians participating in the commercial fishery which  26 I gather leads outside the claim territory or inside  27 the claim territory?  28 MS. KOENIGSBERG:  It deals with the persons from within the  29 claim territory, but when they are outside the  30 territory.  31 THE COURT:  Just outside?  32 MS. KOENIGSBERG:  Just outside.  33 THE COURT:  All right.  34 MS. KOENIGSBERG:  Your lordship has heard evidence on this  35 subject.  This isn't new or raised only by the federal  36 defendant.  It's in two parts, essentially.  One is a  37 description of the participation of the canneries  38 which your lordship has heard about in a different  39 context.  This is simply bringing together that  40 information from the fisheries documents.  And then  41 the continued participation from time to time, and  42 then in a rather continuous way it seems from the  43 documents to the participation that your lordship has  44 heard about of the Gitksan and Wet'suwet'en people in  45 N.F.C. where they have a large number of boats and  46 participate as commercial fishermen.  Full stop,  47 that's what that part is.  It is, in fact, it takes 22743  Submissions by Mr. Plant  Submission by Ms. Koenigsberg  1 from page 50 to 53 and recites the facts.  I think one  2 would be hard pressed to find an opinion, although one  3 could make find a conclusion.  4 I will deal with my friend's remarks on the two  5 grounds that I understood them to be advanced.  First  6 that Mr. Palmer is not sufficiently expert on the  7 coastal fishery or the commercial fishery.  And with  8 the greatest of respect, I think that his resume and  9 his evidence with regard to it demonstrates that he  10 was involved in the management of that fishery for  11 approximately 20 years.  And as it would have impacted  12 both from fishery stock or fish -- fish assessment and  13 from the management point of view, he certainly told  14 Mr. Grant in evidence that he was aware of it  15 generally and dealt with it generally.  So I would  16 submit that in terms of his expertise to go through  17 the documents with which he is familiar and extract  18 from them the relevant information, he is expert.  19 Secondly, my friend suggests that it is not  2 0 relevant.  And although I might not put it quite the  21 way my friend Mr. Plant put it, I would say that my  22 friends have not, in fact, pleaded or at least it's  23 been an interesting question as to whether my friends  24 have actually pleaded in their Statement of Claim use  25 and occupation.  It would be somewhat difficult to  26 respond in a defence on use and occupation, but in our  27 submission your lordship has made it abundantly clear  28 that it is your fondest hope that that is included as  29 part of their claim.  30 The use and occupation evidence is that which the  31 federal defendant wishes to address primarily.  And in  32 our submission it is relevant what the Indian people  33 have been doing in terms of their use and their  34 occupation of the resource areas within the territory  35 to know where they have been and what they have been  36 doing.  And in my submission it is relevant on that  37 ground.  And it certainly formed part of the  38 cross-examination of Mr. Daly when he gave exstensive  39 evidence about exactly what they were doing and where  40 they were doing it, and the economic implications and  41 what their economy was based on, et cetera.  42 So although this evidence as it comes forward in  43 the report of Mr. Palmer is short, brief, and in my  44 submission factual, simply noting the participation  45 and in some of its extent it does go -- it does assist  46 in at least bringing together that evidence and  47 focusing.  In my submission he is qualified and that 22744  Reply by Mr. Grant  1 part of his report should be -- or his expertise on  2 that should be accepted.  3 THE COURT:  Thank you.  Any reply, Mr. Grant?  4 MR. GRANT:  Just briefly, my lord, and that is that I never  5 suggested that Mr. Palmer wasn't qualified to talk  6 about the commercial fishery.  I agree he has talked  7 about that.  But what he said is that in terms of the  8 participation of the plaintiffs in the commercial  9 fishery he has relied on what some other people have  10 written, people better expert than himself.  11 I think my friend probably -- she certainly  12 clarifies something for me that this is not -- it is  13 not opinion in this section, it is fact.  And it is  14 coming from the mouth of -- really in that sense maybe  15 this is not a person whose qualification is totally  16 unnecessary because there is no opinions in this  17 particular section.  18 But having said that, my lord, Mr. Macaulay raised  19 this many times during Mr. Morrell's evidence.  I was  20 allowed to get into that area --  21 THE COURT:  I don't think there is any proper comparison to Mr.  22 Morrell.  Mr. Morrell was challenging the -- the  23 quality of federal management and asserting a legal  24 management in the Indians which I didn't think was  25 relevant.  I don't think this is -- I don't think this  26 is the same issue.  27 MR. GRANT:  But Mr. Morrell was asked questions about the  28 coastal commercial fishery, and he was stopped from  29 giving any evidence on that.  And the issue is the  30 coastal commercial fishery is outside the land claim  31 area.  32 THE COURT:  Yes.  But I don't understand the witness is going to  33 talk to me about the coastal fishery as such.  He is  34 going to be talking about plaintiffs' participation in  35 that fishery which is quite a different thing.  As I  36 see it, I don't think it is a comparison with Mr.  37 Morrell.  It's a question of relevance.  And as I see  38 it, it seems to me to go more to the sociological  39 questions than it does to the fisheries question.  But  40 it has a strong fisheries component.  This part of the  41 evidence has a strong fisheries component.  And if Mr.  42 Palmer was going to be telling me how well regulated  43 the offshore coastal fishery is managed or something  44 like that I think I would agree with you that it would  45 be irrelevant.  But I don't understand that to be what  46 he is going to say.  I, of course, haven't seen the  47 report. 22745  Reply by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR.  THE  GRANT:  COURT:  MR.  THE  MR.  GRANT  COURT  GRANT  THE  MR.  COURT  GRANT  THE COURT  MR. PLANT  No.  Though I am at the usual disadvantage.  I think I  say this, Mr. Grant, that while I haven't got much  doubt about it, I have some.  And I think what I  propose to do, subject to anything else that you might  suggest, is to reserve on this question to hear the  evidence and then decide the question of relevance.  Because I tend to think that it has sociological value  more than fisheries value.  But it relates to the  sociological questions with a strong fisheries  component from a fisheries -- it deals with the  fisheries side of the sociological question, let me  put it that way, or the fisheries part of that larger  question.  And that's why it seems to me that it might  be useful, more useful if it comes from a fishery  person than if it comes from a so-called consultant  who is spending their life looking into other people's  business and telling me how much they know about  somebody else's business, if I can put it that way.  We have a fishery person telling us about fisherman,  and that is usually better than the combination that  we usually get.  Well, what we have is a biologist --  Well, he spent 30 years in the fisheries --  Yes, I agree.  And he certainly knows lots about  policy of the department.  But it is a departmental  official telling you his -- the regulator's point of  view of their involvement, as my friend has said.  But  what I am concerned about is this, my lord, is that  Mr. Morrell did not in his report -- well, his report  isn't in.  Well, goodly parts of his report are in.  Some  parts.  Some parts of his report.  But in his report or  evidence Mr. Morrell did not focus at all in his  evidence -- because we saw, rightly so, that this was  not a relevant issue.  My friends here say, well --  and Mr. Plant has made the point, and I think he has  done through through the licenses.  You have got  Gitksan going into the coast.  But I don't think the licenses are exhaustive. I  don't think that one could say the licenses are the  whole story.  They are not, my lord.  There is lots of evidence of  cross-examination of the plaintiffs' witnesses and  commission and trial -- sorry, at commission and at  trial about them, their families, their fathers, their 22746  Reply by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  mothers going down to the coast, all responsive to the  concern that I already identified.  It's not just the  permits.  THE COURT:  No.  I think I should hear the evidence subject to  the objection, Mr. Grant.  MR. GRANT  THE COURT  MR. GRANT  Okay.  Should we do that at 2 o'clock?  Yes.  THE REGISTRAR:  Order in court.  Court stands adjourned until 2  o'clock.  (PROCEEDINGS ADJOURNED UNTIL 2:00)  I hereby certify the foregoing to  be a true and accurate transcript  of the proceedings herein to the  best of my skill and ability.  LISA FRANKO, OFFICIAL REPORTER  UNITED REPORTING SERVICE LTD. 22747  R.N. Palmer (for Canada)  In chief by Ms. Koenigsberg  Submission by Mr. Guenther  1 (PROCEEDINGS RESUMED PURSUANT TO LUNCHEON RECESS)  2  3 THE COURT:  Ms. Koenigsberg.  4 MS. KOENIGSBERG:  Thank you, my lord.  I think first I put Mr.  5 Palmer's resume or curriculum vitae in front of him  6 and he's now identified it.  Could that be marked as  7 the next exhibit.  8 THE COURT:  Yes.  9 THE REGISTRAR:  1215.  10 THE COURT:  1215?  11 THE REGISTRAR:  Yes, my lord.  12 THE COURT:  Thank you.  13  14 (EXHIBIT 1215:  Resume of Rodney Norman Palmer)  15  16 EXAMINATION IN CHIEF BY MS. KOENIGSBERG:  17 Q   Mr. Palmer, I'm showing you a report, and I'd ask you  18 to look at that report.  And is this a report that you  19 prepared for these proceedings?  20 A   Yes, it is.  21 Q   And it's entitled "History and Regulation of the  22 Fisheries of the Gitksan Wet'suwet'en Land Claim  2 3              Area"?  24 A   Yes.  25 MS. KOENIGSBERG:  I'd like to tender that report, my lord.  26 THE COURT:  All right.  Well, we'll give it a number 1216.  We  27 won't mark it yet.  28 MR. GUENTHER:  My lord, I have an objection to the introduction  29 of the bulk of that report, and I would like to  30 address that by submission now before --  31 THE COURT:  Yes, all right.  32 MR. GUENTHER:  The evidence is heard.  I waited until it was  33 tendered so your lordship could follow some of the  34 submission.  I'm sorry.  35 THE COURT:  Thank you.  36 MR. GUENTHER:  Let me simply summarize the submission before I  37 take your lordship to some of the contents.  The  38 report itself contains for the largest part simple  39 summarization of documents that have been or are being  40 tendered by Canada without opinion attached to that,  41 particularly in the area of the Department of  42 Fisheries' reports.  There's also a large part of the  43 report that summarizes legislation and regulation that  44 contains some comment of what we would submit is an  45 objectionable sort.  That is comment on the purpose of  46 legislation, for instance.  There are some  47 objectionable comments with respect to policies of the 2274?  Submission by Mr. Guenther  1 department.  And in large part the bulk of the report  2 constitutes nothing more or less than what might be  3 characterized as legal argument.  That is placing bits  4 of evidence before your lordship for the purpose of  5 advancing a point that is not an opinion tendered by  6 the witness.  7 And if I might refer to the report.  It commences  8 with an introduction at page one.  And pages two  9 through five contain comments concerning various  10 stocks of fish.  No objection is taken to that.  11 Clearly it falls within an area of expertise and it  12 may be of some relevance.  But at page six starts a  13 summary of what's headed the "Early History of  14 Regulation".  It commences with a comment about laws  15 regulating fisheries in the absence thereof, comments  16 on early Fisheries Acts.  In the second paragraph  17 comments about fishery regulations, and then makes  18 comment about that regulation as being specific  19 prohibition against the use of nets, that it was very  20 restrictive, et cetera.  And this -- I'll pause there  21 for a moment to say there are a number of instances of  22 that sort in the report which amount to, in my  23 submission, nothing more or less than what amounts to  24 legal argument.  That is it's our submission that it  25 is not for a witness to comment on legislation or  26 regulation that is clearly relegated to the area of  27 legal argument where regulations and legislation are  28 put before the court and counsel comment on what the  29 purpose or effect or content of that sort of  30 regulation or legislation amounts to.  So that's the  31 commencement of the report.  32 And then at the bottom of page six, the last  33 paragraph, there's a comment about Mr. Anderson and  34 the citation from a letter written by Mr. Anderson  35 which is quoted, and on to page seven to the middle of  36 page seven.  And then a reference in the quote from  37 another -- the report in 1978 authored by Mr. Anderson  38 towards the bottom of page seven.  This is a simple  39 reporting of what are the contents or partial contents  40 of documents without opinion attached thereto.  And I  41 pause to say that that is another example of what the  42 bulk of this report contains.  43 THE COURT:  Are these documents in evidence?  44 MR. GUENTHER:  These are documents contained in the three  45 volumes that -- I'm sorry.  Have they now been marked?  46 THE COURT:  No, not yet.  47 MR. GUENTHER:  That are being tendered. 22749  Submission by Mr. Guenther  1 THE COURT:  Yes.  I gather that.  2 MS. KOENIGSBERG:  I don't know if this one's in or not, but some  3 of them are.  4 MR. GUENTHER:  Well, presumably when there's a reference to  5 Anderson's report, to the minister for the year 1878,  6 and the report of the Inspector of Fisheries for  7 British Columbia for 19 -- I'm sorry, 1877, and a  8 simple citation from those that is not within the  9 arena of expert opinion.  That is as I have always  10 understood an expert is necessary only where there is  11 something to be offered of assistance to the court  12 that the court cannot, in essence, handle itself.  13 Which is not so with respect to documents.  This court  14 is as capable of reading these documents as this  15 witness.  There is nothing offered that goes beyond  16 the contents of the documents.  That is true of very  17 much of this report.  18 There is then at the bottom of page seven a  19 comment about the lack of regulation of the fishery,  20 and then a reference to 1888 regulations which  21 prohibited salmon fishing by means of nets, and then a  22 quotation from the regulations themselves.  23 Again, at page eight a reference to 1894  24 regulations and a reference to them being more  25 explicit, which may or may not be true, but certainly  26 is not necessary to come from an expert.  The bulk of  27 bottom of page eight is another reference to the  28 content of regulations.  2 9 At the top of page nine the comment as to when  30 those regulations were in effect, and a comment as to  31 when the department began to regulate the Indian  32 fisheries.  That falls into the same area.  With  33 respect to that point my submission is that all of  34 that from the top of page six then including the top  35 paragraph on page nine are objectionable.  I then skip  36 two paragraphs on page nine which are comments that  37 are -- do seem to fall from a particular area of  38 knowledge that may be held by the witness.  At just  39 below the midpoint of page nine there is a reference  40 to a report and a simple quote from that report.  41 Again, the bottom of page nine a reference to  42 Williams' report of 1904, and a reference to appending  43 of an account.  44 And then a reference to a copy of Helgesen's  45 account at the top of page ten, and which is appended  46 as appendix A to this report.  And a reference to that  47 report, and then a simple summary of the contents of 22750  Submission by Mr. Guenther  1 the report without other comment.  That summarization  2 of Helgesen's words starts at the top of page ten and,  3 in effect, carries on through page ten, through to the  4 bottom paragraph on page ten.  5 I do not ask that the bottom paragraph be subject  6 to the same objection, because it seems to fall into  7 an area of permissibility, and in that some of the  8 witness' fisheries expertise may be involved in the  9 comment as to whether Helgesen's observations were  10 correct or not.  11 However, starting again at the first full  12 paragraph on 11, again that paragraph is a simple  13 recounting of what Helegesen said.  Then a reference  14 to the Hudson's Bay company journals at the bottom of  15 page 11 without additional comment only quoting from  16 those journals.  17 The same is true for the two quotes on page 12.  18 That is a simple quote from those journals and other  19 documents.  20 And at page 13 starting just below the midpoint  21 there's a continuation of what Helegesen says without  22 additional opinion or comment.  Helegesen reported on  23 extensive sale of salmon.  He recommended, he also  24 reported, and then at the bottom of the page Helegesen  25 wrote to MP Sloan.  26 And then there's a simple quotation at the top of  27 page 14 of that letter.  Same in the middle of 14, a  2 8 quote from the memorandum to the minister.  Bottom of  29 page 14 a simple summarization of a document, document  30 number 678, and then another quote or summary of what  31 Helegesen reported.  32 Again on 15 two quotes from Helegesen and Norrie.  33 Earlier reports.  At the bottom of 15 a quote from a  34 later report without additional comment.  And when I  35 say without a comment or opinion I'm referring here to  36 your lordship's earlier rulings on the scope of  37 historical opinion.  And as I understand that ruling  38 your lordship ruled that it may be permissible for an  39 expert witness to offer additional commentary in the  40 way of context or identification of actors.  There is  41 none of that in the areas to which I am objecting  42 here.  43 Again, at 16 a simple quote from Helgesen's  44 report.  The next paragraph below that the quote is  45 another simple summary of what Helegesen said.  The  46 same is true of the bottom of page 16.  47 At page 17 the first full paragraph is a simple 22751  Submission by Mr. Guenther  1 summary of what appears in an annual report.  The same  2 is true of the next paragraph which is a simple  3 summary of three separate documents without additional  4 comment.  The bottom of page 17 at a paragraph which  5 amounts to nothing more than a summary from the letter  6 of Mr. Venning.  7 Again, at page 18 another quote from that letter  8 without additional comment.  A reference to another  9 document, two other documents in the last two  10 paragraphs without anything more.  A quote from a  11 document.  12 On page 19, at the middle of 19 appears this  13 passage:  14  15 "As a result of the recommendations of that  16 Commission"  17  18 Referring to the British Columbia Fisheries  19 Commission.  20  21 "new regulations were passed for the Province  22 of British Columbia."  23  24 That is objectionable in my submission on the  25 basis of it being an opinion as to the purpose of  26 legislation, which I submit is not permissible.  There  27 are certain rules of law that relate to construction  28 of legislation and regulation including purpose there  29 for.  30 THE COURT:  That would be not objectionable if the first line  31 were struck, "As a result of recommendation of that  32 Commission"?  33 MR. GUENTHER:  As to that objection, but then it would be a  34 simple recounting of a piece of legislation which is  35 not within the realm of expert evidence.  So it's not  36 necessary as it's not of assistance.  The court is as  37 qualified to read letters, if not more so, than any  38 person in the position of this witness.  39 The last full paragraph on 19 is also an opinion  40 of law.  At the bottom of page 19 on to the top of 20  41 may be partially an opinion of law, but again it's  42 just recounting of a regulation that the court can  43 well read itself.  44 Again a comment at page 20 in the middle paragraph  45 of removal of restriction by legislation.  The next  46 paragraph is a simple summary of what fisheries  47 officers reported.  The bottom paragraph a simple 22752  Submission by Mr. Guenther  1 quotation from another report.  2 The same is true at the top of page 21, a simple  3 quotation without additional comment.  The next  4 paragraph on 21 after the quote is a simple summary of  5 another report by fishery overseer Norrie.  Again the  6 bottom of page 21 a simple quote from a report by  7 Norrie.  8 The same is true of the first paragraph at the top  9 of page 22, which is a summary of what Norrie's report  10 says.  Then a reference to the Sessional Papers for  11 the years 1910 to 1915, but again simple summarization  12 of that information without additional comment.  The  13 same is true of the next paragraph, and then there is  14 a simple quotation of a portion of a regulation.  15 At the top of page 23, or starting on 23 is a  16 simple quotation of further legislation carrying on to  17 page 24.  And the last paragraph on page 24 is simply  18 an opinion about the effect of that legislation.  That  19 entire body to that page amounts to nothing more or  20 less than what is offered under the guise of expert  21 opinion in an area which requires no expertise further  22 than what the court already possesses.  23 The same objections ought to be maintained with  24 respect -- with respect to the following material.  25 Starting at page 25 is the summary of various fishing  26 sites and methods.  The first paragraph which  27 introduces that section confirms that it is based on  28 reports and correspondence in the document files,,  29 again noting that appendix A is a copy of one -- what  30 one of Fishery Officer Helgesen's reports.  And the  31 bottom of that paragraph confirms this is simply a  32 review of available information.  The first paragraph  33 in the -- on -- at the bottom of page 25 is a simple  34 summary of information from reports.  35 The same is true at the top of page 26, including  36 a simple quotation from a report of Officer Helegesen.  37 The bottom paragraph on page 26 simply says this that,  38 fishing activity recorded in reports, that Norrie  39 reported a certain thing.  Again that in 1920 Norrie  40 made a further report and the summary of what it says,  41 that carries on over to 27.  A summary of what  42 McDonell said.  Two comments from 1924 to 1932  43 reports.  This is simply extracting information from  44 documents which ought to say no more or less than what  45 they say and do not require an expert to extract the  46 information.  The same is true of the middle paragraph  47 on 27 which simply extracts or summarizes something 22753  Submission by Mr. Guenther  1 contained in Norrie's annual reports.  At the bottom  2 of page 27 again simple extraction of comments or  3 summaries of comments for -- from reports.  Referring  4 again to Norrie reporting certain things and  5 indicating certain things.  Almost every sentence  6 commences with a reference to a document.  And the  7 word reported that would or indicated that.  8 The top of page 28 again Norrie reported in 1919.  9 The next paragraph on 28 Officer McDonell reported  10 that fishing activity had increased.  He indicated  11 that hard times had driven the Indians to their  12 traplines.  He also reported in recent years only a  13 couple of families used the site.  These are all  14 questions of argument, surely, my lord.  Nothing  15 offered that could fall into that area that  16 authorities could indicate an area of assistance to  17 the court.  18 THE COURT:  What's the difference between this and what Mr.  19 Morrison did?  20 MR. GUENTHER:  Well, as I understand it, and I understand not  21 only Mr. Morrison, but others.  22 THE COURT:  And others, yes.  23 MR. GUENTHER:  Were offering assistance from their areas of  24 expertise that put certain documents into context  25 historically that assisted in terms of identifying the  26 authors or the recipients and the context in which  27 that occurred, and identifying those authors and  28 recipients in terms of understanding their -- their  29 situations or motivations as to writing certain  30 things.  None of that is offered here.  And that I  31 submit distinguishes this evidence from those areas of  32 evidence to which I think your lordship is referring  33 in terms of the general principle that evidence ought  34 not to be offered through an expert or under the guise  35 of an expert which has the effect of purportedly  36 giving it greater credibility or greater impact when,  37 in fact, the evidence that's recounted is nothing more  38 or less than that which is in the documents that can  39 be put before your lordship.  40 THE COURT:  What distinction — I'm — I think I'm recognizing  41 here is between those parts of Mr. Morrison's evidence  42 and others which put documents in context and which I  43 commented upon in my reasons that -- that it was  44 inevitable that there would be interwoven into their  45 evidence opinions, and that sort of thing, but that  46 the real value of his evidence was -- was in the  47 collection, and that the big books were put in 22754  Submission by Mr. Guenther  1 evidence.  And I presume they're here as well.  And  2 all the witness has done, this witness it seems to me  3 has done up to now is he has -- he has provided an  4 index, useful or unuseful, as the case may be,  5 chronology of what in his view are perhaps more  6 significant than others.  But he's not interpreting  7 them for me except in the occasional case.  And that  8 he'll always fall into that.  I can disregard that.  9 But is this not in all respects the same as what the  10 other witnesses did, because they occasionally slipped  11 into opinion about context.  And I dare say that  12 perhaps this witness will too.  That depends on his  13 evidence.  But what he's really done is provided me  14 with a road-map to go through a lot of documents to  15 the one he has studied the question of, and being  16 involved in fisheries has an understanding of it,  17 points out the ones that might be most significant.  18 It doesn't stop counsel from referring to other ones.  19 Both counsel referring to other ones.  I'm not sure at  20 the moment I find anything objectionable to this.  I  21 don't disagree with anything you've said with what it  22 appears that he has done, but I'm not sure that I find  23 out where the -- what's objectionable about it.  24 MR. GUENTHER:  Well, I think I have your point, my lord.  But I  25 submit there is a distinction between this evidence  26 and those other bodies of expert evidence.  And that  27 is that all this is is what your lordship has  28 indicated, and that is putting before you a road-map  2 9 to find your way through documents which you could  30 read without assistance, or more importantly which  31 could be read by you with the assistance of counsel in  32 argument.  There is nothing more being offered by this  33 witness.  And my understanding of the evidence of the  34 other witnesses was that there was something more that  35 your lordship recognized would require some assistance  36 in terms of context.  37 THE COURT:  Rather interesting things crept into the evidence I  38 have no doubt.  I don't know if Ms. Koenigsberg plans  39 to take the witness through the report or not.  If she  40 doesn't this is what I'm left with.  But that doesn't  41 stop other counsel telling me not to look at other  42 documents.  I'm not limited to these.  At least it's  43 an index.  I think that the value of this, and I think  44 what makes these things admissible is reflection  45 rather than any observations that might have been made  46 out of context.  And I think, for example, Mr.  47 Morrison, as I recall, he didn't have a report, but 22755  Submission by Mr. Guenther  1 his verbal evidence is, I think, indistinguishable  2 from this.  And Dr. Lane, I don't think she had a  3 report, but she went through a large mass of documents  4 and pointed out things that -- passages that she  5 thought were of particular significance.  I'm not sure  6 I see any difference between that and this.  7 MR. GUENTHER:  I understood only that their evidence was  8 somewhat more.  And I take that in part from what I  9 have seen of their evidence and also from your  10 lordship's ruling that allowed that evidence which  11 referenced the requirement of assistance of someone  12 understanding the context in which the document was  13 created.  14 THE COURT:  Well, I think we have that here.  15 MR. GUENTHER:  Well, there appears to be nothing offered in the  16 report in terms of assisting the court in context  17 other than simply --  18 THE COURT:  There is a qualification though.  19 MR. GUENTHER:  But with respect to the report there's nothing  20 that takes it into that realm.  It is a simple legal  21 argument that is -- as in any case that involved  22 documents counsel will extract from them what they  23 would argue is relevant, and perhaps forcefully, and  24 do exactly this, provide this road-map.  If the  25 witness is providing nothing that takes it beyond that  26 which I understood that Mr. Morrison, Dr. Lane and  27 others did, that is saying -- putting the document  28 into the historical facts or into the stream of  29 history in a general sense, or identifying the actors,  30 that's somewhat different.  But if it's only a  31 road-map and only an extraction into two areas,  32 summarization of what a document says without more, or  33 an actual quotation from a document, that I submit is  34 on the other side of the line and does not move the  35 report or the contents of the report into the arena of  36 an area of assistance to the court other than as  37 counsel would argue the case.  38 THE COURT:  What this witness is not doing is what I found to be  39 objectionable in some of the other evidence when we  40 first started down this historical path, was to give  41 historical opinions on what I have called the broad  42 sweep of history.  He's not -- from what I've seen he  43 isn't doing that.  I tend to think, and I say this  44 with all respect, I tend to think this may be a better  45 and more attractive method than even what Mr. Morrison  46 did.  It's so much quicker.  If Ms. Koenigsberg isn't  47 going to take him through it seriatim then I have an 22756  Submission by Mr. Guenther  Ruling by the Court  Submission by Ms. Koenigsberg  1 indication of the important documents which he could  2 have told me about viva voce at much greater length,  3 but I really don't see the difference.  4 MR. GUENTHER:  Well, I won't belabour it, my lord.  5 THE COURT:  I think you conclude that I'm against you, Mr.  6 Guenther.  7 MR. GUENTHER:  I have that feeling.  I also feel somewhat robbed  8 of the subtleties of earlier arguments and rulings  9 that have gone on in this courtroom, or perhaps some  10 of the subtleties or lack thereof of earlier  11 witnesses, but I leave the argument --  12 THE COURT:  All right.  13 MR. GUENTHER:  — Only with this comment, that if it be less  14 objectionable than what other witnesses have done it  15 is in the end nothing more than what Ms. Koenigsberg  16 could do in argument if she called the witness for  17 expertise in researching to say I have done --  18 THE COURT:  Is this —  19 MR. GUENTHER:  And I found these documents, and I went through a  20 lot of documents and this is all I could find.  The  21 end.  But this is -- this is cloaked with something --  22 THE COURT:  Even the other witnesses; Dr. Lane, Dr. Galois and  23 Mr. Morrison, they all put in far more documents than  24 they mentioned in their viva voce evidence.  They just  25 highlighted the important ones, the ones they  26 thought -- I think they had two collections.  They had  27 a physical collection and then they had the  28 intellectual collection.  That is the ones they  29 mentioned as being most significant.  And I really  30 don't notice any difference.  I'm sorry, Mr. Guenther.  31 I'm sorry.  I'm grateful for your assistance, but I'm  32 against you.  33 MR. GUENTHER:  I say on the second point if that be so I  34 certainly accept your ruling.  Of course, there has to  35 be surely some establishment of some expertise in that  36 research process which does not arise from the  37 evidence of this witness so far in my submission.  38 THE COURT:  I'll hear you on that, Ms. Koenigsberg.  39 MS. KOENIGSBERG:  Well, my lord, I would recommend the  40 examination in chief and cross-examination on  41 qualifications if what we are talking about is the  42 expertise of this witness to go and find relevant  43 fisheries documents and determine if they are  44 documents which bear on certain questions, and if they  45 are authentic, and what generally they mean, and how  46 generally they fit together within the context of  47 fisheries regulations and fisheries jurisdiction. 22757  Submission by Ms. Koenigsberg  Ruling by the Court  R.N. Palmer (for Canada)  1 THE COURT:  I'm not sure he can say what they mean, I don't  2 think.  3 MS. KOENIGSBERG:  We try to steer away from that because, of  4 course, that was the area we objected to in my  5 friend's witness was --  6 THE COURT:  I think I'm going to allow you to proceed,  7 particularly in view of what I heard you're going to  8 do, Ms. Koenigsberg.  I think this is as I described a  9 second collection.  I think on that basis it's useful,  10 and I think with respect it's unobjectionable.  11 MS. KOENIGSBERG:  Thank you.  Could we then mark his report as  12 the next exhibit.  13 THE COURT:  We'll reserve the number.  There is a part of it  14 which I haven't come to yet on which I reserved the  15 number.  We'll reserve what will be number 1216.  16 THE REGISTRAR:  Yes, my lord.  17 MS. KOENIGSBERG:  18 Q   Mr. Palmer, if you turn to the page 56 of your report  19 the references are listed.  20 A   Yes.  21 Q   And could you describe how these references or why  22 these references are here, and perhaps include in your  23 description that there are other references that are  24 in the body of the text.  25 A   Okay.  What I referred to as references in section six  26 of the report are what I consider scientific or  27 technical references.  And perhaps from the habit of  28 my profession when I wrote the report I made up a list  29 of references of all the technical reports, scientific  30 reports that I had cited in the report.  In addition  31 to that I used documents such as fishery officer  32 reports, reports of the department, and sessional  33 papers, and so on, that I classed in my mind at least  34 as a different type of document which I cited by list  35 number.  36 MS. KOENIGSBERG:  Okay.  And, my lord, I have put together in a  37 binder the documents, the reference documents which  38 are listed on page 56 and -- yes.  And in that volume  39 are those references as well as additional references  40 which are referred to in the body of the report, but  41 in the front of this volume.  And you may have his CV  42 in the very front.  The next document is an index.  43 THE COURT:  Document references, yes.  44 MS. KOENIGSBERG:  Yes.  And I would just like to take the  45 witness through that.  If we could just have that put  46 in front of the witness so we all know how this works.  47 Your lordship already has the three volumes of 2275?  R.N. Palmer (for Canada)  In chief by Ms. Koenigsberg  1 fisheries reports.  2 Q   And, Mr. Palmer, you've reviewed the documents which  3 are in this volume that I've handed up to you that's  4 called References?  5 A   Yes.  6 Q   And you've reviewed the volumes one through three  7 which are called Fisheries Reports Collection?  8 A   Yes, I have.  9 Q   And does that include all of the documents which you  10 referred to or cited in your report?  11 A   Yes.  12 Q   And in this index in the front we've set out by  13 reference to the report page the A.G. Canada list  14 number.  And you referred to those documents in your  15 report by their list number?  16 A   Yes.  17 Q   And the date and a description of that source?  18 A   Yes.  19 Q   And so this index is an index which includes all four  2 0 volumes.  One that I've just handed up being the  21 references and the three volumes of the fisheries  22 collections documents; is that correct?  23 A   Yes.  24 THE COURT:  And so this most recent volume you've included some,  25 but not all of the documents in the other three  2 6 volumes?  27 MS. KOENIGSBERG:  It doesn't — the book does not include any of  2 8 the documents, but indexes them.  29 THE COURT:  Oh, I see.  Yes.  All right.  30 MS. KOENIGSBERG:  There is a separate index just for the  31 fisheries collections documents in those volumes, but  32 this one is a comprehensive one.  33 MR. GRANT:  I think I understand it as you do.  I don't think,  34 unless my friend could correct me, that this index is  35 all of the three volumes in this index.  36 THE COURT:  Ms. Koenigsberg just said it does.  37 MS. KOENIGSBERG:  I'm certainly instructed it does.  And it's  38 certainly long enough.  And if I'm wrong then we'll  39 correct it, but I believe the attempt was to do that.  4 0 And the newest addition that came out this morning has  41 the cross referencing as best we could do it with the  42 other existing exhibits.  43 THE COURT:  So tabs 1 to 36 of this most recent book is really  44 the bibliography to the report, is it?  45 MS. KOENIGSBERG:  It includes additional documents as well other  46 than just the ones that are on the reference list, but  47 they are all cited. 22759  R.N. Palmer (for Canada)  In chief by Ms. Koenigsberg  1 THE COURT:  Yes.  All right.  It's everything that's cited in  2 the report?  3 MS. KOENIGSBERG:  Yes.  I think maybe I'm going to take another  4 shot at this.  I don't think it's that hard.  5 THE COURT:  All right.  6 MS. KOENIGSBERG:  The four volumes that have now been handed up,  7 the one entitled "R.N. Palmer Documents" and the three  8 volumes handed up yesterday entitled "Fisheries  9 Reports Collection" are all of the references either  10 listed on the reference page or cited in Mr. Palmer's  11 report.  12 Q   Is that correct, Mr. Palmer?  13 A   Yes, that's correct.  And there are other reports in  14 addition.  15 Q   Yes.  That you referred to?  16 A   That I have examined and read, yes.  17 Q   Yes.  18 THE COURT:  And I've got it right, have I, that this volume  19 includes all references cited or referred to in Mr.  20 Palmer's report?  21 MS. KOENIGSBERG:  Yes.  22 THE COURT:  The index however is —  23 MS. KOENIGSBERG:  The index —  24 THE COURT:  The index, is it the same as in the other three  2 5 volumes?  26 MS. KOENIGSBERG:  It's inclusive of those.  27 THE COURT:  So it's those plus what's in here?  2 8 MS. KOENIGSBERG:  Yes, my lord.  29 THE COURT:  Let's take an example.  Number one is Catalog of  30 Salmon Streams.  31 MS. KOENIGSBERG:  Yes.  32 THE COURT:  By Marshall and Manzon.  33 MS. KOENIGSBERG:  Yes.  It is a reference.  34 THE COURT:  So it's item 1 on this index.  35 MS. KOENIGSBERG:  Yes.  It's not included in the three fisheries  36 collection documents.  37 THE COURT:  All right.  Thank you.  38 MS. KOENIGSBERG:  It's — if it helps, my lord, the last volume  39 that I've handed up, which is the index, is inclusive  40 of all four volumes.  41 THE COURT:  Yes.  42 MS. KOENIGSBERG:  But there shouldn't be a repeat —  43 THE COURT:  All right.  44 MS. KOENIGSBERG:  — Of the documents.  45 THE COURT:  All right.  Well, then I think this should be  46 reserved a number, and I think it should be 1216A.  47 MS. KOENIGSBERG:  All right.  And I don't believe that we 22760  R.N. Palmer (for Canada)  In chief by Ms. Koenigsberg  1 tendered the other three volumes except as they  2 pertained -- specific documents were identified or  3 dealt with by Mr. Turnbull and Mr. Woloshyn, and I  4 would ask that the balance of those volumes now form  5 part of this collection and be tendered so they would  6 be B, C, D.  7 THE COURT:  Yes.  8 MS. KOENIGSBERG:  And if it's of any assistance I have one other  9 question that may clarify that matter.  10 THE COURT:  Yes.  11 MS. KOENIGSBERG:  12 Q   Mr. Palmer, the fisheries collection volumes one  13 through three documents include documents authored by  14 Mr. Turnbull and Mr. Woloshyn?  15 A   Yes.  16 Q   And did you review those for the purposes of your  17 report?  18 A   Yes.  19 MS. KOENIGSBERG:  Thank you.  20 THE REGISTRAR:  Are these to be reserved or are they exhibits  21 proper?  22 THE COURT:  I'm waiting to hear from Mr. Grant on that.  23 MR. GRANT:  I'm going to have some concerns with respect to some  24 of the content, but not a lot of it, so I think they  25 should be reserved and dealt with as though the  26 report --  27 THE COURT:  They have already been given numbers.  28 MR. GRANT:  The numbers are reserved, and so we can deal with  2 9 them as we deal with them.  30 THE COURT:  Deal with them in due course.  Ms. Koenigsberg has  31 now tendered them.  32 MS. KOENIGSBERG:  Yes.  33 THE COURT:  Yes.  Thank you.  34 MS. KOENIGSBERG:  Would you just open your report, Mr. Palmer,  35 to the table of contents.  I'm simply going to take  36 you through the table of contents.  And I would ask --  37 just ask his lordship to note that on the table of  38 contents, or in the table of contents number five, the  39 sport fishery, has been removed.  4 0 THE COURT:  Oh.  All right.  41 MS. KOENIGSBERG:  It's not in your copy and so that nobody's  42 confused we should remove it from the table of  43 contents.  44 Q   Mr. Palmer, you dealt firstly in this report with a  45 review, if I can put it that way, of the life  46 histories of relevant fish species.  And is that under  47 topic or point number two in your table of contents? 22761  R.N. Palmer (for Canada)  In chief by Ms. Koenigsberg  Cross-exam by Mr. Grant  1 A   Yes, that's correct.  2 Q   And under number three we see The Indian Fishery.  And  3 it deals with the early history of regulation?  4 A  M'hm.  Yes.  5 Q   And then it deals with specific fishing sites and  6 methods of fishing historically up to the present  7 time?  8 A   Yes, that's correct.  9 Q   Okay.  And you deal with a topic of Indian Food Fish  10 Permits and Licenses?  11 A   Yes.  12 Q   And Close Periods?  13 A   Yes.  14 Q   And Other Regulatory Measures as they impact on Indian  15 fishery.  You then have a section called Participation  16 of Indians in the Commercial Fishery?  17 A   Yes.  18 Q   And that contains your review and summary of that  19 topic?  20 A   Yes.  21 MS. KOENIGSBERG:  Those are all my questions.  22 THE COURT:  Thank you.  Mr. Plant, are you seeking to  23 cross-examine?  24 MR. PLANT:  I have no cross-examination of this witness, my  25 lord.  2 6 THE COURT:  All right.  Thank you.  Mr. Grant.  27  28 CROSS-EXAMINATION BY MR. GRANT:  29 Q   Mr. Palmer, when did you commence your research to  30 prepare this report?  31 A   In late November or early December of 1986.  32 Q   And as I recall your CV were you doing it as an  33 employee at that time of the Department of Fisheries  34 and Oceans?  35 A   No.  I retired from fisheries and oceans at the end of  36 January of 1986.  37 Q   And you've been on full time consultancy work -- let's  38 say you've been consulting with respect to the  39 preparation of this report since November of '86 and  40 the evidence in this case?  41 A   Certainly not full time.  42 Q   I said you have been consulting.  I did start by  43 saying full time and I changed it.  44 A   Oh, yes.  45 Q   Have you had any legal training, Mr. Palmer?  4 6 A   No.  47 Q   Do you know the Endako River? 22762  R.N. Palmer (for Canada)  Cross-exam by Mr. Grant  1 A   I know where it is.  2 Q   Have you ever been there?  3 A   I've crossed it on -- I've crossed it on the highway,  4 but I don't -- I've never done any fisheries work on  5 the Endako.  6 Q   The Endako River, you mean you've crossed it at the  7 outlet of Fraser Lake.  Is that where you're referring  8 to you crossing it on the highway?  9 A   I believe that's the area.  Not having done any field  10 work in the area my memory of it is a little vague,  11 but I know it flows into -- from the direction of the  12 Burns Lake area down into Fraser Lake, and generally  13 it is near the highway at that point.  14 Q   Do you know the Stellako River?  15 A   Not from a fisheries survey point of view.  16 Q   Do you know the Stellako River from any point of view?  17 A   I haven't travelled that way for awhile.  My  18 recollection is that the highway crosses it.  19 Q   The highway crosses the Stellako rather than the  20 Endako River at the outlet of Fraser Lake, doesn't it?  21 A   Yes.  22 Q   The Endako River is part of the Fraser River  23 watershed, isn't it?  24 A   Yes.  25 Q   And in your report at page four you state with respect  26 to chinook salmon, the second paragraph:  27  28 "Although a few chinook salmon were observed in  29 some early years, they have not been seen in  30 the Fraser River watershed portion of the claim  31 area in recent years."  32  33 And you cite in support of that Marshall and  34 Manzon; right?  35 A   Yes.  36 Q   And you refer to 25 fish were observed in some early  37 years?  38 A   Yes.  39 Q   Do you remember what those early years were?  I mean,  40 what time period are you talking about, or are  41 Marshall and Manzon talking about?  42 A   I don't have without reference to the document the  43 exact memory, but --  44 Q   M'hm.  45 A   -- It strikes me that it may have been in the order of  46 ten -- of ten to 20 years previous to 1980.  47 Q   We are talking about post 1950, aren't we? 22763  R.N. Palmer (for Canada)  Cross-exam by Mr. Grant  1  A  2  Q  3  4  5  6  A  7  Q  8  A  9  Q  10  11  12  13  14  A  15  Q  16  A  17  Q  18  19  A  20  Q  21  A  22  Q  23  24  A  25  Q  26  27  THE COURT  28  MR. GRANT  29  THE COURT  30  MR. GRANT  31  Q  32  33  A  34  Q  35  36  37  38  39  40  41  42  43  44  45  46  A  47  Yeah.  Can you turn to tab 1 of your document book.  I think  it's Exhibit 1216A, my lord.  It's tab 1 and it's the  Marshall and Manzon extract.  February, 1980.  This is  the reference upon which you were relying?  Yes.  Is that right?  You have that -- the cover of that?  Yes.  Now, if you go in the second page is the Endako River,  and the third page is the Endako River, and if you go  to page 40 and, in fact, you've reviewed this booklet,  haven't you, this whole binder I think you've  indicated, you've reviewed it?  I've been -- what, this book?  Yes.  Yes.  It has extracts rather than the entire treatises or  documents in many cases.  It's not the whole document?  Not in all cases, no.  Here's an example.  This is part.  Yes.  Okay.  So we go to page 40, which is the fourth page  in.  Do you have that, my lord?  Yes.  And you see Endako River chinook 1959 25, and that's  what you're referring to there, isn't it?  What year?  1959.  The year's in the left-hand column, my lord.  Yes.  That's the number of fish you're referring to in early  years; right?  Yes.  But in 1979 75.  But that contradicts your opinion,  doesn't it, which says that:  "Although a few chinook salmon were observed in  some early years, they have not been seen in  the Fraser River watershed portion of the claim  area in recent years."  I'm suggesting you said it went from 25 fish in  1959 to no fish.  Here you have the learned authors  saying it tripled.  Although it's only 75, but it  tripled.  The problem I have with the Endako River, as best I  can interpret information on distribution, almost all 22764  R.N. Palmer (for Canada)  Cross-exam by Mr. Grant  1 of the spawning of chinook on Endako were outside the  2 claim area.  3 Q   Well —  4 A  And in my opinion very few of the chinook that spawn  5 in the Endako were actually spawning within the claim  6 area.  I wasn't able to put a number on it.  7 Q   But you can't -- the Endako River flows, as you say,  8 from the area of Burns Lake east of Fraser Lake;  9 right?  But, Mr. Palmer, when you say in my opinion  10 you're relying on Marshall and Manzon?  You're relying  11 on these authors, aren't you?  This is who you cite,  12 Marshall and Manzon; is that right?  13 A   Yes.  And they say chinooks spawn throughout, but  14 mainly 1.6 kilometres below Shovel Creek.  And if I  15 recall Shovel Creek is downstream of -- Shovel Creek  16 is outside the claim area.  17 Q   And this is -- you're referring to page 38 on the  18 Endako?  19 A   That's right, yes.  20 Q   But they say that chinook spawn throughout?  21 A   Yes.  22 Q   So if they say that there must be something spawning  23 above Shovel Creek one would say or they would just  24 say they spawn only below Shovel Creek?  25 A   That's why I identified the Endako as one of the  26 possible areas where chinook spawn, because they do  27 say they spawn throughout, however, they say that  28 mainly below Shovel Creek.  29 Q   For this paragraph in your report you rely on Marshall  30 and Manzon; right?  31 A   Yes.  32 Q   We have established that that Endako River is one of  33 the rivers of the Fraser watershed; right?  34 A   Yes.  35 Q   It's part of the Fraser River watershed portion of the  36 claim area.  You understand that?  37 A   Yes.  3 8 Q   And you say:  39  4 0 "Although a few chinook were observed in some  41 early years, they have not been seen in the  42 Fraser River watershed portion of the claim  43 area in recent years."  44  45 The authors upon whom you rely do not support that  46 proposition, do they?  47 A  With respect to the Endako River? 22765  R.N. Palmer (for Canada)  Cross-exam by Mr. Grant  1  Q  2  A  3  Q  4  A  5  6  Q  7  8  9  10  A  11  Q  12  A  13  Q  14  A  15  THE  COURT  16  MR.  GRANT  17  THE  COURT  18  A  19  THE  COURT  20  A  21  MR.  GRANT  22  Q  23  A  24  Q  25  A  26  27  28  29  Q  30  31  A  32  Q  33  34  35  36  37  38  39  40  41  42  43  A  44  Q  45  46  47  A  That's a mistake on your part, you'd agree with me?  It could be a mistake, yes.  Thank you.  I can't say for sure how many fish may have spawned  above Shovel Creek.  But what we do know is that even if we spread it  throughout it, the proportion between 1959 and 1979,  there was a tripling of the count of chinook in the  Endako watershed in the Endako River --  In one year.  -- According to Manzon?  Yes, in one year.  Yes.  Yeah.  What does NO mean?  N/O sockeye?  Where?  On page 40.  Not observed?  I believe it means none observed.  :  None observed?  Yes.  None observed or not observed?  I believe it means none observed.  What about with where there's a blank in 1970?  That means there were probably no observations.  That  this being a very minor tributary may not in some  years have been expected at the time of chinook -- in  that case sockeye spawning.  Is there a legend to this, an explanation of these  graphs in the text?  It's not in this extract.  There may be.  I'm not sure.  Next paragraph 2.3 pink area.  Pink Salmon.  "There are no pink salmon" --  The last part of your statement.  "There are no pink salmon in those parts of the  claim area lying within the Nass River and  Fraser River watersheds."  Follow me?  Page four.  Yes.  You don't cite any source in support of that  proposition.  You make no reference to any source for  that proposition; correct?  That's correct.  That proposition is based on my 22766  R.N. Palmer (for Canada)  Cross-exam by Mr. Grant  1 general knowledge of salmon stocks in the Fraser.  For  2 example, the -- they aren't found in the -- in the  3 upper reaches of the Fraser.  4 Q   Is there any --  5 A  And on my studies on the Nass we never found them in  6 the claim area portion of the Nass.  7 Q   That was your 1957, '58 study?  8 A   '57, '59.  And anything I've read on -- any fisheries  9 technical reports I've read since.  10 Q   Has there been any update on your 1957, '59 report?  11 A   There's been —  12 Q   With respect to the Nass has there been any further  13 studies?  14 A   There have been studies going on in the Nass off and  15 on for -- since then.  16 Q   Any published?  17 A   Yes, I think so.  18 Q   Any reason you didn't cite them?  19 A   There's a very large technical data base of fisheries.  20 To cite every study that may have gone on in or around  21 the claim area wasn't necessary.  22 Q   I agree.  23 A   I used ones that gave what I considered relevant  24 information.  I have read reports on the Nass.  25 Q   But if you could follow me, Mr. Palmer.  26 A   Yes.  27 Q   I agree there may be lots of technical studies and we  28 don't need them all cited.  I'm not suggesting that.  29 For some reason the federal defendants thought it  30 important that you give an opinion regarding pink  31 salmon in those parts of the claim area lying within  32 the Nass River and Fraser River watersheds, and you  33 say there's many studies post 1959 with respect to  34 that.  You haven't cited or referred to one, and I'm  35 asking you why not.  36 A   I don't consider it necessary to cite reports that say  37 nothing about pink salmon.  The -- I guess my only  38 response is that the knowledge that there are no pink  39 salmon in the Fraser portion of the claim area or the  40 Nass portion of the claim area was to me, at least,  41 common knowledge.  42 Q   So you make that statement based on your common  43 knowledge?  44 A   Yes.  And my reference in the past to fisheries  45 catalogs of spawning distribution, the spawning  46 reports that I referred to in studies I did in  47 relation to this report, but on material that's not 22767  R.N. Palmer (for Canada)  Cross-exam by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  now in this report.  Q   Go to your 6.0, page 56 of your report.  You describe  this as your references of scientific and technical  reports.  That's what you described to Ms. Koenigsberg  when she asked you.  A   Yes.  The ones I actually cited.  Q   Is A.G. Morice, The history of the Northern Interior  of British Columbia, a scientific or technical report  in your view?  A   No.  But it's a published -- bound published report.  Perhaps I should have added that to my description.  Q   Okay.  So that's fair enough.  A   Yes.  Q   I just want to be clear.  A   Yes.  Q   Would it be more correct to say that these are  scientific, technical and published reports upon which  you relied, or did you rely on other published reports  that are not cited here?  A   Not that I can -- not that I can think of.  Q   I just want to understand what this is.  A   Yes.  THE COURT:  Do you want to take the afternoon adjournment, Mr.  Grant?  MR. GRANT:  Certainly, my lord.  THE REGISTRAR:  Order in court.  Court stands adjourned for a  short recess.  (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. 2276?  R. N. Palmer (for Canada)  Cross-exam by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT)  THE REGISTRAR:  Order in court.  MS. KOENIGSBERG:  Mr. Grant has kindly allowed me to do  something I should have done before, and that is to  make two small corrections to the report.  Page 16.  THE COURT:  Yes.  MS. KOENIGSBERG:  Third line where it says document number.  THE COURT:  Yes.  MS. KOENIGSBERG:  That should read — instead of 868 it should  read 686.  THE COURT:  All right.  MS. KOENIGSBERG:  And on page 47 under 1974 to 1977 almost a  third of the way down there.  THE COURT:  Yes.  MS. KOENIGSBERG:  It says:  "No close period".  It should say:  "After no close period.  closure to gaffs - August  19 - September 1."  THE COURT:  Closure to gash?  MS. KOENIGSBERG:  Gaffs, G-A-F-F-S.  THE COURT:  Okay.  And the dates?  MS. KOENIGSBERG:  August 19 through September 1.  THE COURT:  Thank you.  MS. KOENIGSBERG:  Thank you.  THE COURT:  Mr. Grant.  MR. GRANT  THE COURT  MR. GRANT  Q  A  Q  A  Q  A  Q  A  Q  :  Thank you, my lord.  Can you turn to page 6 of your  report.  I'm sorry, I didn't note the number.  What is  that exhibit number, Madam Registrar, the report?  :  1216.  Thank you.  Mr. Palmer, before we get into this, would  it be correct to say that, in fact, your function  regarding this, the history of the Indian regulation  was to research -- you took on a research task of  reading the early literature relating to the history;  is that right?  Yes, some of which I had reviewed in the past.  And some of which you had read in the past?  Yes.  But, of course, you hadn't focused on it like you did  for this report in the past?  That is generally -- yes, that's correct.  That's true, hey?  Yes.  And I think you described that you had read some, for  example, when you did the Nass study, material that 22769  R. N. Palmer (for Canada)  Cross-exam by Mr. Grant  1 would relate to the Nass, obviously?  2 A   Yes.  3 Q   And was there any other time that you were engaged in  4 a specific area of study that -- in which you looked  5 at historical material which would have included some  6 of the historical material you reviewed here?  7 Anything else you did like that Nass study which you  8 looked at historical material that would have touched  9 on the claim area for other purposes?  10 A   I would have looked at some of the historical material  11 when I was working on the Bulkley, Morice system.  12 Primarily looking for any record of -- on the history  13 of the fish stocks, and to some extent on the history  14 of the harvest of those stocks.  And, for example, in  15 the Indian fishery.  16 Q   When did you do that work that you would have looked  17 at historical material?  18 A   That would have been during the sixties, I believe.  19 Q   '64, '66, that time?  20 A   Yes.  21 Q   And would it be fair to say that you, of course, would  22 not have looked at the Hudson's Bay archives at that  2 3 time?  24 A   No, I did not.  25 Q   Or what you would have looked at, or what you did look  26 at would be more along the line of what's entitled --  27 incorporated into not your -- not Exhibit 1216-A the  28 Palmer documents, but the fisheries reports  29 collection.  That's what you would have looked at in  30 terms of the historical documents would be historical  31 fishery reports in the possession of the department;  32 is that right?  33 A   Yes.  That would be the type which includes -- that  34 collection includes some provincial reports also.  35 Q   Which would --  36 A  And I would have, in addition, read historical reports  37 on fish spawning populations.  38 Q   Like what?  Like who other than those ones?  39 A  Well, the fishery officers at least since, say, the  40 twenties, and in the early years it was somewhat  41 sporadic, filed a particular form type report on  42 spawning ground observations.  43 Q   Mh'm.  44 A  And those are on file in DFO.  And in some streams  45 they go back to the twenties.  Others the data base  46 isn't as far back.  But they are specific to spawning.  47 And I didn't have to use them for this review because 22770  R. N. Palmer (for Canada)  Cross-exam by Mr. Grant  1 first off in this report there is -- we don't talk  2 about numbers of spawners very much.  When I worked on  3 the -- what was a larger report in 1987, I referred to  4 spawning records, but I had more compiled sources.  5 The Department of Fisheries & Oceans has now taken  6 these records and put them on computer.  7 Q   Mh'm.  8 A  And earlier than that such as the reports of Marshall  9 and Manson that you talked about earlier.  10 Q   Well, if we could just get back to my question.  The  11 question is, when you did this work on the Bulkley  12 River you would have looked at reports similar to the  13 fishing -- those that are in the fishing reports  14 collection and similar ones, but you looked at that  15 type of report?  16 A   Including the scientific and technical reports that  17 were available.  18 Q   Well, I am talking about the historical material you  19 looked at.  20 A  Well, there is some historical material in scientific  21 reports, too.  22 Q   And you looked at the spawning reports which was  23 another form of report of fishing officers?  24 A   That's right.  25 Q   And all of this material, even if it was provincial  26 fishing reports, was something that was in the  27 department?  You used the departmental files of the  28 historical archive for your report on that?  29 A   The historical reports are in the departmental  30 library.  31 Q   Okay.  That's located in Vancouver?  32 A   Yes.  33 Q   Now, in the middle paragraph on page 6 you say:  34  35 "In fact, the specific prohibition against the  36 use of nets of any kind for salmon in fresh  37 waters was very restrictive in respect to  38 Indian fisheries."  39  40 Now, that's your own opinion as to when you say it's  41 very restrictive?  Do you understand my question?  42 A   Yes.  43 Q   That was your own opinion?  44 A   It was my opinion.  I don't know if it was shared with  45 others, but it was mine.  46 Q   But the only thing you did to come to that opinion was  47 you read the regulation and said, this sounds very 22771  R. N. Palmer (for Canada)  Cross-exam by Mr. Grant  1 restrictive.  And that's why you said it, right?  2 A   I also -- I also know that -- and taking it at this  3 point was it was a provincial regulation that Indian  4 fishermen using their traditional methods use dip nets  5 in many parts of the region.  And I included that in  6 my mind in nets this --  7 Q   In 1878?  8 A   -- perhaps it prevented that.  But it also prevented  9 Indians from adopting the use of gill nets at that  10 time.  I felt it was -- that's perhaps the primary  11 reason that the regulation would not allow them to  12 adopt the use of what were called salmon nets or  13 salmon gill nets in those days in their fishery.  14 Q   But you know from the record that of course Indians at  15 that time were using barricades and baskets, right?  16 A  And other methods.  17 Q   But you're not suggesting that in 1878 Indians were  18 using -- that it is your opinion that Indians were  19 using dip nets in the land claim area, are you?  20 A   There is references.  And it was difficult to  21 perceive, but they will talk about scoop nets, nets  22 that implied to me that they were hand held.  I don't  23 know that they were made out of webbing.  I think they  24 were more baskets of a sort.  But not -- but that they  25 may have been hand held baskets which they would use.  26 Q   Can you look at page 7.  At the bottom you say there:  27  28 "It would appear that under the authority of  29 the Minister's letter of August 8, 1978, the  30 Indian fishery was left unregulated until new  31 regulations were promulgated in 1888."  32  33 This is the bottom paragraph, my lord.  This is after  34 you quote the minister's letter?  35 A   Yes.  36 Q   Well, you have no basis -- know no that the Indian  37 fishery was left unregulated.  We know that, right?  38 That is from your analysis -- you are looking at the  39 regulations, correct?  40 A   Yes.  Taking it again in the context of British  41 Columbia which the -- to which the regulations  42 apply --  43 Q   Look —  44 A   I don't believe that the Indian fishery was regulated  45 prior to 1888.  46 Q   Yes, I understand that.  47 A   Yes. 22772  R. N. Palmer (for Canada)  Cross-exam by Mr. Grant  1 Q   And that's from looking at the regulations applying to  2 B.C., right?  3 A   Yes.  And the fact that the minister --  4 MR. GRANT:  Well, just —  5 MS. KOENIGSBERG:  Excuse me, please don't interrupt the witness.  6 THE WITNESS:  — exempting him.  7 MR. GRANT:  8 Q   Well, I want you to answer my question.  9 A  Well, perhaps I don't understand the question.  10 Q   That's why I want to clarify it for you.  I don't want  11 to get into an altercation.  12 A   Okay.  13 Q   And I just want to focus, if we can.  And I am going  14 to come to what you are raising.  And you say:  15  16 "It would appear that under the authority of  17 the Minister's letter,"  18  19 which suggests that you're stating that the reason why  20 the Indian fishing was left unregulated was because of  21 the authority of the minister's letter.  That's what I  22 read that to say.  That's a fair reading of what you  23 are saying there, right?  24 A   Yes.  I read the minister's letter as giving the  25 inspector of fisheries the authority to leave the  26 Indian fishery unregulated.  27 Q   But whether it was because of this letter, or for any  28 other reason, you don't know.  That's your supposition  29 as to why it was left unregulated?  30 A  Well, I do know that the inspector of fisheries  31 recommended quite -- very strongly that the  32 regulations of 1878 not be applied to Indians.  33 That's —  34 Q   And that's something that is in the letter, of course?  35 A  And that's covered in -- in Mr. Anderson's report  36 of -- in the year 1877.  37 Q   Right.  38 A   He lays down his opinion on how the Indian fishery  39 should be dealt with it at that time.  40 Q   But if you look at page 7.  41 A   Yes.  42 Q   I am trying to follow your logic, okay.  I can read  43 the letters.  44 A   Yes.  45 Q   I understand that.  But Anderson says on document 2956  46 on page 7:  47 22773  R. N. Palmer (for Canada)  Cross-exam by Mr. Grant  1 "I may add, that by the letter of the Minister  2 of the 8th August, I was duly authorized to  3 suspend application in regard to Indians, of  4 the fishery enactments."  5  6 Now, this is in 1878, right?  7 A   Yes.  8 Q   So it appears that there is -- that speaks for itself.  9 We can argue and debate what he meant.  But it  10 certainly seems that Anderson relied on the August 8th  11 letter.  Are you with me?  12 A   Yes.  13 Q   But you say that it would appear because of that  14 letter that it was left unregulated for ten years.  15 But you don't know if it was because of that one  16 statement that it was left unregulated for ten years  17 or for any of a host of other reasons it was left  18 unregulated for ten years, right?  19 A   That's correct.  I can't say for sure that it was on  20 this one authority.  But that was my -- that was my  21 impression.  For ten years I found no further action  22 taken with respect to regulating fishery.  23 Q   And that is from an analysis that you did from the  24 history of those regulations over the ten years, or  25 lack of them?  26 A  And the reports of the inspector.  27 Q   But from looking at the regulations alone you can tell  28 it is unregulated, right?  29 A   Yes.  30 Q   You don't need any reports from inspectors.  Go to  31 page 9.  You refer to Poudrier.  I'm sorry, Williams.  32 No, Poudrier.  The third paragraph down:  33  34 "Although a report" —  35  36 Second sentence.  37  38 "Although a report of an exploration survey in  39 1892" --  40  41 MS. KOENIGSBERG:  The third paragraph down?  42 MR. GRANT:  Third full paragraph down.  43 MS. KOENIGSBERG:  Second paragraph is "prior to that time".  44 THE WITNESS:  I find it, yes.  4 5    MR. GRANT:  46 Q "Although a report of an exploration survey in  47 1892 implied that fishery regulations were being 22774  R. N. Palmer (for Canada)  Cross-exam by Mr. Grant  1 implemented, it is unlikely that any fishery  2 officer had ventured into the area."  3  4 This is the upper Skeena or Nass River areas prior to  5 1904.  You found there was no record.  And then you  6 say --now, again all your -- is it correct to say that  7 the reason why you are saying that is based on the  8 fact that there was no records of fisheries  9 inspections?  That's the basis upon which you  10 hypothesize that there was no fishery officer  11 venturing into the area until 1904?  12 A   Yes.  My interpretation of reading the records was  13 that there had been no entering into the area by  14 fishery officers before 1904.  15 Q   But it is not in this case a case of interpreting the  16 records?  In your case it is as a result of not  17 finding any fishery reports prior to 1904 in this  18 case?  19 A   The inference I get --  20 Q   Of no records?  21 A   No.  The inference I get of reading records prior to  22 that —  23 Q   Yeah.  24 A   -- is that this was the first time that the inspector  25 sent anybody up into that country.  And it is the  26 first year that there was an inspector assigned for  27 the season to Port Essington which was the -- a focal  28 point of the fishery on the Skeena.  Prior to that  29 time there had been a single inspector for B.C. who  30 only --  31 Q   Prior to which time?  32 A   Prior to 1904.  33 Q   Okay.  34 A   There had been a single inspector for B.C. who rather  35 rarely visited the north area.  36 Q   Mh'm.  37 A   It depended on guardians in the estuary.  38 Q   Mh'm.  39 A   Then in 1904 there was a decision taken to split B.C.  40 into districts one and two, with district two being  41 the north.  And a new inspector, Mr. Williams was  42 assigned to Port Essington to be resident during the  43 salmon season.  That raised the level of attention on  44 the fisheries of the Skeena area.  And at that time  45 inspector Williams assigned Mr. Helgesen to go inland  46 and make an inspection.  47 Q   And what you've just said now is all here in your 22775  R. N. Palmer (for Canada)  Cross-exam by Mr. Grant  1 report?  2 A   Yes.  3 Q   This is what you've summarized?  4 A   Yes.  But that's -- what I am trying to respond to --  5 Q   Right.  6 A   -- is how I infer that 1904 was the first year that it  7 was active regulation in the claim area.  8 Q   Well, active attention, active presence?  9 A   Presence.  10 Q   Of any fishery person.  11 A   Yes.  12 Q   In the claim area, right?  13 A   Yes.  14 Q   That's what it was?  15 A   Yes.  16 Q   Okay.  You go to page 10.  And, of course, you refer  17 to Helgesen which either you -- did you decide to put  18 Helgesen as appendix A, was that your decision?  19 A   I -- as I recall, I proposed it.  20 Q   Okay.  21 A   Because I felt that it was the earliest fairly  22 thorough description from the fisheries of the -- of  23 and near the claim area.  24 Q   Okay.  Now, the first full -- before the summary, and  25 that summary is just nothing more than a summary of  26 what he did as recited in his report there.  That's  27 the summary of what Helgesen took the following  28 action, that's what he reports?  29 A   Yes, that's what I extracted as the key actions that  30 he took --  31 Q   Okay.  32 A   -- in that inspection.  33 Q   He says -- you say:  34  35 "Also, Babine River stocks migrate through the  36 claim area and actions taken at Babine would  37 have had a significant impact on levels of fish  38 abundance in the claim area for future years."  39  40 Whose actions are you referring to there?  The actions  41 of the people of the Babine or the actions of  42 Helgesen?  43 A   I would think when I wrote it I was primarily  44 referring to the actions taken by Helgesen.  45 Q   There is no evidence -- there is no evidence that  46 there was any problem with the Babine River stocks  47 prior to 1906, is there?  Or, I'm sorry, 1904? 22776  R. N. Palmer (for Canada)  Cross-exam by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MS.  MR.  MS.  A   I would say that there was no evidence of stock  abundance levels.  There were concerns of various  people expressed as to the impact to the various  fisheries and concern for the future.  But I think it  is correct to say that the -- because the abundance  have not been studied up river or anything else there  was no -- it was really very little information to go  on.  But it was --  Q   We have Helgesen's information that when he was there  in the summer of 1904 there were fish going up the  rivers, right?  He records fish going up the rivers,  right?  A   Yes.  That doesn't —  Q   And he finds fish --  KOENIGSBERG:  Excuse me.  GRANT:  And he finds fish —  KOENIGSBERG:  Is Mr. Grant going to conduct both the  question and the answer or let the witness answer?  Well, he might let the witness answer.  I'll let the witness give an answer.  Won't you, Mr. Grant?  THE COURT  MR. GRANT  THE COURT  MR. GRANT  Q  A  Q  A  Q  A  Q  A  Q  A  Q  I'll let the witness give an answer, sure, once in a  while.  What he reports is there are fish going up the  streams.  What is less clear in many cases is how  many.  And he -- he describes generally which streams  he sees fish going up.  And he also refers to his  understanding that the -- that the barricades were  probably installed after the migration had begun.  And  from my understanding of the stocks of the Babine,  the -- most of the systems that he was talking about  are -- tend to be fairly early timing runs.  And I  can't say from the record how many got through before  the barricades may have been put in place.  You know the biolo --  But he was there and he expressed concern.  You know the biology of fish?  Yes.  You know that fish go in cycles?  You know that,  right?  Salmon.  I'm not sure what you mean by cycles.  If you are going to have salmon return in a given year  depending on what species, you know that would go down  from the inland to the ocean.  Yes.  Within two or four years. 22777  R. N. Palmer (for Canada)  Cross-exam by Mr. Grant  1  A  2  Q  3  A  4  Q  5  A  6  Q  7  A  8  Q  9  10  11  12  A  13  14  Q  15  16  17  A  18  Q  19  THE COURT  20  THE WITNE  21  MR. GRANT  22  Q  23  24  A  25  Q  26  27  A  28  Q  29  30  31  32  A  33  Q  34  35  36  37  A  38  39  Q  40  A  41  Q  42  A  43  Q  44  A  45  Q  46  A  47  THE COURT  Okay.  Right?  That's what I mean by a cycle.  Okay, now --  You understand that?  I understand what salmon cycles are.  Okay, let me --  Yes.  -- proceed.  If there were fish going up in 1904,  salmon, does it not tell us something knowing about  salmon biology that those fish had to have been going  down in some previous year?  It certainly tells us that there had been parent  escapements in previous years, yes.  Right.  And the parent escapements in previous years  were the result of parents coming back up from those  previous years and spawning; is that correct?  Yes.  It tell us that.  :  That's what parent escapement is, isn't it?  3S:  Yes.  And the parent escapement go in cycles and then the  next year following, depending on the species?  Yes.  So we do know that prior to 1904 there was fish runs  on the Babine in which there was parent escapement?  Yes.  And there is no indication from the historical record  that barricades or anything else completely stopped  any of the fish runs on the Babine prior to 1904?  You  can't -- there is no evidence of that, correct?  In terms of stop for a season, yes, that's correct.  Can you go -- maybe madam registrar could give you  Exhibit 1209(2) Loring documents.  And that would be  tab 94.  Before you look at it, have you ever looked  at the Loring reports?  Not in the total collection.  I have had a very few  referred to me.  Okay.  Go to tab 94.  Yes.  Go to the last page.  I am at the last page.  Page 5 of tab 94.  Yes.  Have you got that?  Yes.  :  Perhaps the witness should understand that this is 2277?  R. N. Palmer (for Canada)  Cross-exam by Mr. Grant  1  2  MR.  GRANT  3  Q  4  5  A  6  MR.  GRANT  7  8  THE  COURT  9  10  MR.  GRANT  11  THE  COURT  12  MR.  GRANT  13  14  THE  COURT  15  MR.  GRANT  16  17  18  THE  COURT  19  MR.  GRANT  20  THE  COURT  21  MR.  GRANT  22  23  24  25  THE  COURT  26  MR.  GRANT  27  THE  COURT  28  MR.  GRANT  29  30  31  32  33  34  35  36  37  THE  COURT  38  MR.  GRANT  39  40  41  42  43  44  45  46  MS.  KOENI  47  189?  Oh, yes, thank you, my lord.  Yes, this is February  11, 1898 Babine Agency.  Mh'm.  And this is a report of Loring at Lach-al-sap,  L-A-C-H — A-L — S-A-P.  Which we know from evidence heard earlier is on the  Skeena how many miles above Hazelton?  34.  34 miles above Hazelton.  I'm sorry, wait a minute.  I just want to be sure  that that's.  Well, it may not matter.  It is some miles north --  Yes, it says to the east of here.  34 miles east of  Hazelton.  Lach-al-sap.  I'm sorry, Lach-al-sap is  Moricetown.  Okay.  Yes.  So we are on the Bulkley now.  And I'm not sure if Dr. Galois gave this evidence,  but I think when you look at these mileages, my lord,  you have to give a grain of salt.  34 miles of Loring  is --  Salt in the Bulkley River, surely not.  A large dose of salt for mileages, in any event.  All right.  Let's go to page 5. He is talking about the  fishery, okay. And he says in the second last  paragraph:  "The baskets being placed in no instance  entirely obstruct the passage of the fish as  such can not be made efficient any distance  from shore.  I often chance" --  To see them.  "To see them filled and found a fish going  under, over and by the flanks of them.  And the  general supposition that they shut off their  passage is a matter more of the imagination  than" --  "a matter more of the imagination" --  5SBERG:  The greater and lesser.  Is this the greater  and lesser quote? 22779  R. N. Palmer (for Canada)  Cross-exam by Mr. Grant  1  MR.  PLANT  2  3  MR.  GRANT  4  5  6  7  8  9  10  MR.  PLANT  11  12  13  MR.  GRANT  14  THE  COURT  15  MR.  GRANT  16  Q  17  18  19  A  20  21  22  23  24  25  Q  26  A  27  Q  28  29  30  31  32  33  A  34  Q  35  36  37  A  38  Q  39  A  40  41  42  43  44  45  46  47  "A matter whereof the imagination plays the  greater..."  Yes.  "And observation the lesser part in my  opinion."  Thank you, Mr. Plant.  I hope I can cross-examine Mr.  Plant on his interpretation.  If I get to cross-examine Mr. Grant on his  interpretation of Dr. Galois' evidence about Mr.  Loring's mileage abilities.  We will do it both out of court, my lord.  Yes, please do.  We won't use up any more time.  In any event, had this  passage been directed to your attention at any time?  Had you ever seen it before?  I am trying to put this in the context of the total  letter, whether it is one of the few I read.  The  passage has some familiarity in it.  I think it may be  one that talks about fishing systems and methods in  some other areas.  Now, do I understand that this  passage is about Moricetown?  Yes.  Yes.  But you're aware that -- from the reading of the  historical documents that there was a strong lobby --  prior to Helgesen's trip up the Babine, there was a  strong lobby of the commercial canners to end the  barricades on the upper river.  You know that, don't  you?  Yes, there was lobbying.  And that there is a -- and, of course, Helgesen did  take the action as you've summarized to destroy the  barricades?  Yes.  Right?  One point, I don't believe when he is referring to  Moricetown that he is talking about barricades.  He is  talking about what are common -- frequently in the  records called basket traps that are set into --  Moricetown being a fall with an obstruction, my  understanding of the various descriptions that I have  read is that these are fitted into the current and at  the points where the fish are trying to migrate  through.  They are not fences, per se or weirs across 22780  R. N. Palmer (for Canada)  Cross-exam by Mr. Grant  1 the river.  2 Q   Right.  3 A   That would probably be physically impossible in the  4 canyon.  5 Q   Yes.  But you know --  6 A   That is not the same as the barricade that is  7 described on the Babine River.  8 Q   But let me suggest this to you.  9 A   Yes.  10 Q   The fish at Moricetown Canyon, a canyon to which you  11 are familiar from your earlier work?  12 A   Yes.  13 Q   The fish go up the side away from the rushing water,  14 that's how they get up the canyon, right?  15 A   Largely, but not entirely.  16 Q   Largely.  17 A  And in the case of some species such as chinook they  18 are more likely to use the deeper water at the centre  19 because they are so much stronger.  They have less  20 need to stick to the back eddies and so on.  21 Q   But an efficient use of basket traps in the Moricetown  22 Canyon could have largely the same effect as a  23 barricade across the river because you could block the  24 passage of the fish along their routes along the side  25 of the canyon wall.  You don't agree -- you agree with  26 that, don't you?  27 A   Not entirely.  I think you could be more successful  28 barricading -- or blocking migration with a barricade  29 than you would with any kind of marginal traps that  30 don't encompass the entire channel.  Reading his  31 description, I would not be surprised to have him  32 observe that fish go under and around the basket trap  33 while obviously some go in it.  34 Q   But where he says that "the blockage is" -- as Mr.  35 Plant helped me read, "the greater part of imagination  36 than observation".  You are aware that Loring  37 obviously was -- he knew that there was lobbying going  38 on even as early as 1898 to stop the upper river  39 barricades from the coastal canneries, right?  40 A  Well, I can't be sure that Loring knew that.  41 Q   But —  42 A   Loring implies that -- that somebody or some people  43 are questioning Indian fishing methods.  44 Q   And I agree —  45 A   But once again, I say that these traps aren't  46 barricades as I understand barricades.  But they are a  47 fishing method that was in use at the time. 22781  R. N. Palmer (for Canada)  Cross-exam by Mr. Grant  1 Q   A fishing method that was subsequently prohibited by  2 Helgesen and the fishery department?  3 A  And then reinstated --  4 Q   Right?  5 A   -- at a later date.  6 Q   Was it prohibited or not at that time?  7 A  At 1904 it was prohibited.  8 Q   Yeah, at Moricetown?  9 A   Yes.  10 Q   And I agree what you say about Loring.  You can't tell  11 what Loring knew.  But if Loring was aware from -- if  12 you look from your examination of the historical  13 record the lobbying to stop the upper river barricades  14 was going on as early as 1908, wasn't it?  15 A   I can't say that for sure.  But it wouldn't surprise  16 me if it was.  17 Q   Okay.  18 A  Are we finished with this document?  19 Q   Sorry, which one?  2 0 A   The Loring document?  21 Q   Yes, you can take that off your lap, sir.  If go to  22 page 14.  In 14 you refer to Prince's memorandum of  23 1905.  Page 14.  Do you have it?  24 A   Yes, I have it.  25 Q   And Prince says in 1905:  26  27 "The abuse of the Skeena is greater for two  28 reasons:  29 1)  Indians formerly fish for food, but now  30 sale."  31  32 Let's stop there.  Prince gives no basis for that  33 conclusion or that statement, does he, in his 1905  34 statement, that:  35  36 "Indians formerly fished for food, but now for  37 sale"?  38  39 A   I would conclude that he was passing on to his  40 minister the -- the -- he was passing on to his  41 minister information that he received in reports from  42 Hel -- that came up from Helgesen through the system.  43 Q   Helgesen was only there in 1904, that was the first  44 time, right?  45 A  Well, he wrote this in 19 --  46 Q   Was Helgesen there in 1904?  47 A   He was there in 1904. 22782  R. N. Palmer (for Canada)  Cross-exam by Mr. Grant  1 Q   That was the first time?  2 A   Yes.  3 Q   That is June of 1905?  4 A   Yes.  5 Q   So this question of "Indians only fishing for food,  6 but now for sale" would be from the Helgesen's first  7 visit to the area, right?  8 A   Yes.  That was reflecting Helgesen's observations that  9 there were increasing numbers of people in the area  10 that were buying fish for food for the work they were  11 doing while they were working and living in the area.  12 Q   Okay.  But of course you know that --  13 A   But —  14 Q   You know that this is an error, don't you?  Because  15 from your historical review you looked at the Hudson's  16 Bay material?  17 A   I know that the Indians of Babine sold -- sold or  18 traded for fish at least since the 1820s.  19 Q   Right.  So that although this quote is here Prince is  20 mistaken in this quote.  Unless he is talking about  21 some unknown time before the 1820s, it is not correct,  22 is it?  23 A  Well, he is not totally correct in that he missed the  24 fact that the Hudson's Bay -- that Indians at least at  25 Babine had been selling to the Hudson's Bay.  What I  26 think he was trying to reflect was the fact that  27 this -- that the market was rapidly widening  28 reflecting Helgesen's report in which he said formerly  29 there were only a few Hudson's Bay people in the area  30 and, in effect, that's all they could sell to.  But  31 now there are -- there are explorers and miners and  32 telegraph people and so on.  And I think what Prince  33 was trying to do was to reflect what Helgesen had told  34 him.  And perhaps --  35 Q   Well —  36 A   He was in error in that he didn't add that --  37 acknowledge that they had been selling to the Hudson's  38 Bay.  That's if -- he missed that point in reporting  39 to the minister.  40 Q   Well —  41 A  And that's —  42 Q   Well, I -- I don't -- it doesn't matter to me what  43 Prince --  44 A   Yeah.  45 Q   -- had in his mind.  4 6 A   Yeah.  47 Q   This is a statement in your report. 22783  R. N. Palmer (for Canada)  Cross-exam by Mr. Grant  1 A   Yes.  2 Q   Where you quote Prince.  And I am saying that that  3 statement is not correct of Prince's.  And you agree  4 it is not correct?  5 A   It is not correct to the extent that, yes, they sold  6 to the Hudson's Bay.  7 Q   And from your research you also know that fish was  8 used by those people for trade with other Indians  9 groups, didn't you?  Or did you not look at that  10 aspect of it?  11 A   That I have heard and read in passing.  12 Q   But that wasn't --  13 A   I didn't -- I don't -- I can't say for sure that I  14 found that within the fisheries documents.  15 Q   Okay.  Page 16.  Just a moment.  This is the paragraph  16 beginning:  17  18 "Despite the successful elimination of barricades  19 and traps in 1905, difficulties once again arose  20 in 1906."  21  22 Now, in support of that, are you relying on the  23 document -- the annual report on the upper Skeena from  24 1906, number 640 that is cited on page 17?  I am not  25 sure where you are getting that information.  But I  26 think that's where you are referring to.  27 A   Yeah.  I think that was my -- that was my primary  28 source.  29 Q   That was your primary source?  30 A   Because it summarized the events.  31 Q   That's fine.  Go to page 19.  Here you are talking  32 about the B.C. Fisheries Commission report of  33 1905-1907?  34 A   Yes.  35 Q   And then you say in the last paragraph:  36  37 "The statements of the Commission of 1905-1907  38 and the regulations subsequently adopted would  39 appear to have absolved the Minister of Marine  40 and Fisheries of any ongoing requirement to  41 permit the sale of Indian caught fish at  42 Babine."  43  44 You see that statement there, page 19 at the bottom?  45 A   Yes.  46 Q   You are not suggesting that any legal obligation on  47 the minister was absolved from that.  That is not what 22784  R. N. Palmer (for Canada)  Cross-exam by Mr. Grant  1 you are trying to say there, is it?  2 A   No.  What I am trying to say is that in the statement  3 the minister made he said that -- that he was going to  4 allow the trade and sale to go on, subject to the  5 decisions of that Commission which was now underway.  6 And that he would -- that my understanding of it was  7 that when the recommendations of the Commission were  8 received he would -- he would act -- he would follow  9 the recommendations.  The Commission subsequently  10 recommended that the sale of food fish not be  11 permitted in British Columbia.  12 Q   You know the discussion of those barricade agreements,  13 there is a reference to them.  They have often been  14 referred to as the barricade agreements even though  15 there isn't a formal agreement in the long form that  16 we look at?  17 A   Yes.  18 Q   You know that.  But all I'm asking you is you are not  19 suggesting here -- I just want to be clear?  20 A   Okay.  21 Q   You are not suggesting a legal opinion as to whether  22 the minister had an obligation or not, are you, a  23 continuing obligation?  24 A   No, I wouldn't —  25 Q   Okay, that's fine.  26 A   I wouldn't call it a legal opinion.  I'm not --  27 Q   You're just reporting on the record?  28 A   Yes.  And the way I interpreted his statement made at  29 the time of the -- that the -- I will use the term  30 agreement with me was that he would allow the sale to  31 continue until that Commission made its  32 recommendations and then he would follow them.  That's  33 how I interpreted it.  I don't think that's a legal --  34 Q   Go to page 20.  You say:  35  36 "In the years immediately following the Babine  37 barricade agreement the fisheries officers  38 reported general compliance to the regulations  39 in the upper Skeena area."  40  41 Is the proposition that you are setting out there, is  42 it what is followed, for example, in the 1907 season  43 and then on 21, 1908, is this just -- is that just  44 sort of an introduction to that section, or is there  45 something else that I am missing?  That's what I read  46 it as.  I just want to be clear that I understand it.  47 A   No, that's the way I meant it. 22785  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  R. N. Palmer (for Canada)  Cross-exam by Mr. Grant  Q   That's fine.  A   These are citing some particular examples that  illustrate that point.  Q   So that point is just an introduction to those -- to  those references; is that right?  A   Just allow me to go back a minute, please.  My  observation was that -- that based on reading the  reports that there was general compliance to the  regulations.  All I had to go on in this observation  was what the officers reported.  Q   Right.  And of course these officers had a motivation  to report that things were going well, didn't they?  COURT:  I'm sorry, things were going well or going on?  GRANT:  Going well.  COURT:  Yes, thank you.  WITNESS:  Well, I don't entirely agree with that in the  sense that they also reported when they had -- there  are events do you know through the years where they  have reported difficulties.  THE  MR.  THE  THE  MR.  GRANT  Q  A  Okay.  And actions having to be taken.  I don't want to  suggest that they weren't giving the facts as they saw  them and believed them.  THE COURT:  Shall we adjourn, Mr. Grant?  MR. GRANT:  Yes, my lord.  THE COURT:  How are we doing, Ms. Koenigsberg, with your case?  MS. KOENIGSBERG:  Well, unfortunately it rests upon — or  fortunately it rests upon Mr. Grant's shoulders right  now.  We're on target as far as I can tell.  I think  Mr. Grant -- I am not quite sure how long he thinks he  will be tomorrow.  THE COURT:  Yes.  MS. KOENIGSBERG:  But assuming that he is not going to take all  day tomorrow, there are some collections of documents  that we could deal with, and they may or may not  provoke discussion.  THE COURT:  Yes.  MS. KOENIGSBERG:  Which will take up some time.  THE COURT:  Right.  MS. KOENIGSBERG:  If we don't have any difficulty with that, it  may be that we will finish early tomorrow.  We don't  have another witness until Monday.  THE COURT:  I see.  So you don't think we need to sit on  Saturday?  MS. KOENIGSBERG:  Well, I will leave that to Mr. Grant.  It  doesn't look like it to me. 22786  R. N. Palmer (for Canada)  Cross-exam by Mr. Grant  1 MR. GRANT:  I don't think we have to sit on Saturday, but we do  2 want -- I can advise your lordship of the situation.  3 I don't anticipate that I will be too much longer with  4 the witness.  I certainly will finish him some time in  5 the morning.  6 THE COURT:  All right.  7 MR. GRANT:  I will certainly finish him and it may well be  8 before the break.  But I am concerned about what my  9 friend has suggested.  My friend has a large body of  10 historical documents in the manner of what Mr. Goldie  11 did.  Mr. Goldie provided the documents to us  12 generally a week or so in advance or an index.  And I  13 have requested Mr. Rush and Mr. Guenther and I have  14 all requested at various times an index to these  15 historical documents of the Federal Crown.  And we  16 have not got anything yet.  17 And I am assuming they are all listed on the 12 --  18 within the 12 or 15 thousand documents that my friends  19 have listed.  But it is not a very easy -- it's not  20 a -- I don't think it is very manageable from our  21 side.  We don't want to stand up and object or stand  22 up and stop, but for my friends to finally get them  23 together in the morning and then just say, okay, now  24 we want to tender these exhibits.  I don't want to be  25 in the situation I was in with Mr. Loring's documents.  26 I would like to be able to say, fine, even an index  27 would help.  We have nothing.  28 THE COURT:  Well, if they are tendered tomorrow you can have the  29 weekend to look at them, can you not?  3 0 MR. GRANT:  Yes.  31 THE COURT:  But then I wouldn't be able to — I don't know  32 whether I would have a submission or not.  Certainly  33 if they were tendered and not marked as an exhibit,  34 that's right, we could deal with them in that way.  35 That is a difficulty.  My friend also has some  36 other -- I will discuss with my friend the other  37 things she wishes to raise and if she could advise me  38 then we will be ready to proceed.  There are other  39 documents about federal alienations that my friend  40 wants to tender and we will him determine which those  41 are and be organized for that.  42 THE COURT:  Yes.  43 MR. GRANT:  But I see -- and my friend also informed me a few  44 days ago or yesterday that one of their witnesses they  45 don't intend to call.  And I think that that -- I  46 certainly don't think leaving one witness for them to  47 call in court, although there are out-of-court 22787  R. N. Palmer (for Canada)  Cross-exam by Mr. Grant  1 witnesses, I think that there is no necessity in those  2 circumstances to go on Saturday.  3 THE COURT:  You can't finish your case in four days next week,  4 can you, Ms. Koenigsberg?  5 MS. KOENIGSBERG:  I certainly don't know why not.  6 THE COURT:  Oh, all right.  Well, we will look forward to that.  7 All right.  10 o'clock.  8 THE REGISTRAR:  Order in court.  This court stands adjourned  9 until 10 o'clock tomorrow.  10        (PROCEEDINGS ADJOURNED UNTIL NOVEMBER 24, 1989 AT 10 O'CLOCK)  11  12  13  14  15 I hereby certify the foregoing to  16 be a true and accurate transcript  17 of the proceedings herein to the  18 best of my skill and ability.  19  20  21    22 LISA FRANKO, OFFICIAL REPORTER  23 UNITED REPORTING SERVICE LTD.  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47

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