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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1988-11-08] British Columbia. Supreme Court Nov 8, 1988

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 9335  Submissions by Ms. Mandell  1 8 November 1988  2 Vancouver, B.C.  3  4 (PROCEEDINGS RESUMED PURSUANT TO AN ADJOURNMENT)  5  6 THE REGISTRAR:  Order in court.  In the Supreme Court of British  7 Columbia; this Tuesday, November 8, 1988.  In the  8 matter of Delgamuukw versus Her Majesty the Queen at  9 bar, my lord.  10 THE COURT:  Well, do counsel have anything further to say about  11 what I said last night?  12 MS. MANDELL:  My lord, if I could in brief.  I think that the  13 suggestion which you raised is helpful and I wanted,  14 though, to ask you to consider with respect to three  15 other points.  The first is a point which was  16 identified by my friend, Mr. Willms, yesterday and  17 that is the definition of strategy and, on that  18 point, I urge your lordship to consider the Bogosian  19 case where there -- instead of the definition being  20 left to strategy, it was succinctly put as documents  21 prepared by attorneys containing solely their mental  22 impressions and thought processes relating to the  23 legal theories of a complex case.  24 THE COURT:  Well, the problem with it, I find, with those kinds  25 of definitions is that the documents you have to  26 deal with never fit the definition; they have --  27 nothing never deals solely with something.  There is  28 always something else put in.  29 MS. MANDELL:  That's right, and that's why your concept of  30 blacked out I think is probably the way to go where  31 there will be some judgment call on the part of  32 counsel as to edit out the portions of it that seem  33 primarily concerned with strategy.  Although, on  34 that point, I'd ask your lordship to consider that  35 where the documents are to be blacked out, it's my  36 submission that there should be, if possible, some  37 certainty with counsel that once the judgment call  38 has been taken by counsel in this case that there is  39 prima facie an assumption that there has been there  40 a claim for privilege made and, if then there is to  41 be a disclosure through the methods that you seek  42 that there be a burden of proof established in the  43 formula which in my submission ought to shift to  44 those seeking disclosure to show that the document  45 is necessary for credibility or reliability.  And on  46 the burden of proof, I just would like to draw your  47 lordship's attention in the Steeves case which is 9336  Submissions by Ms. Mandell  1 found at tab 8 of our submission at page 74, where I  2 think in that case Mr. Justice Ruttan --  3 THE COURT:  Bouck.  4 MS. MANDELL:  I am sorry, Mr. Justice Bouck says there that he  5 resolves some of this difficulty by the burden of  6 proof method:  7  8 "Where a court must decide whether a particular  9 piece of evidence is caught by the  10 solicitor/client rule of privilege, the law  11 places the onus upon the party resisting  12 disclosure.  However, in my view when it comes  13 to deciding the statement of an ordinary  14 witness is privileged, the burden of proof  15 should be on the party demanding its discovery  16 rather than on the party resisting.  What tips  17 the scale in his direction for me is the  18 desirability that each side should  19 conscientiously prepare its own case.  In that  20 way, there is more likelihood the truth will  21 unfold."  22  23 And that was followed by United Services Funds case  24 which is found at tab 12 in our authorities.  And if  25 I could just comment generally.  The reason why I  26 was inclined to urge upon your lordship the firmness  27 that there be a prima facie case of privilege  28 established and then a burden of proof shift if  29 there is to be a disclosure by the court is that I  30 feel that the burden should still remain with  31 counsel to do this job, and where counsel can't  32 agree or where, because of the difficulties that one  33 counsel may be having in trying to get to the root  34 of the credibility issue through ordinary means or  35 another counsel may have reasons of their own for  36 resisting certain statements, where the situation  37 comes to the line, then and only then in my view  38 should the court be asked to intercede.  But I don't  39 think that it's a full solution to the problem to  40 say, well, we are going to set up a method where  41 inevitably the court is going to intercede in each  42 and every black out because that's the prescribed  43 method and the party that's seeking disclosure would  44 have nothing to lose but to force to see whether or  45 not there is anything there which can be of use.  46 And so I say there should be some certainty that  47 counsel can go on and that in points of difficulty, 9337  Submissions by Mr. Willms  1 then of course I think your formulation that the  2 court intercede in the way you suggest is a good  3 one.  4 THE COURT:  All right.  Well, yes.  All right, thank you.  Mr.  5 Willms.  I am sorry, one other thing.  You are  6 not -- you are not suggesting that I shouldn't  7 follow Mr. Justice Finch's judgment?  8 MS. MANDELL:  Not as I interpret Mr. Justice Finch.  9 THE COURT:  Yes, all right.  10 MR. WILLMS:  As I indicated yesterday, my lord, the phrase  11 strategic information was of some concern and what I  12 suggest, bearing in mind the steps that your  13 lordship proposed, was that if strategic information  14 means any part of the presentation of the  15 plaintiff's case where the information is not  16 related to the substance of the report or the  17 substance of the evidence, then that's strategic  18 information.  And I should -- and I use the word  19 substance because that's what Mr. Justice Finch used  20 in Phillips Barratt, and by substance, what I  21 suggest, my lord, is that that's the scope of the  22 report or the evidence and the expertise underlying  23 that.  When I say scope, that would catch what's  24 actually in the report but also it would catch  25 what's been taken out of the report, but it would  26 be -- the focus of the inquiry would be on the  27 substance of the report and not on the general  28 advice and the backing and the forthing, so the  29 starting point would be looking at, all right, does  30 this information bear on the substance of the report  31 or the substance of the expert's evidence and  32 substance.  33 THE COURT:  Or credibility.  34 MR. WILLMS:  Or credibility, but I am —  35 THE COURT:  Of course strategy would hardly bear on credibility.  36 MR. WILLMS:  Yes, on credibility.  The credibility issues, my  37 lord, would probably not be caught within that  38 strategic information.  In terms of onus -- my  39 friend suggested the Steeves v. Rapanos case, there  40 is some onus on us to show it shouldn't be  41 privileged.  We will -- we can't see it.  Steeves  42 and Rapanos was a case where a pretrial application  43 was made to see a witness' statement, and one thing  44 that troubled his lordship was the fact that the  45 witness was available to the parties seeking  46 production of the statement and that it's in that  47 context that Mr. Justice Bouck said that I am going 933?  Submissions by Mr. Willms  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  to tip the scales in those circumstances in favour  of putting the burden on the party seeking the  document rather than the other way around.  Well,  here, of course, the experts aren't normal  witnesses.  We can't go phone the expert up, sit  down with him, interview him.  The expert is cloaked  with my friend's work product privilege and is not  like an ordinary witness in which there is no  property.  So what I suggest, as I suggested yesterday, that  my friends -- and this is in particular with respect  to the listing proposal that we discussed and agreed  before the break. So long as my friends maintain a  claim for privilege, they should identify in respect  of that claim what it is. We have now got two lists  from my friends and all that the list says is  privileged in parenthesis.  THE COURT:  Does it identify the document —  MR. WILLMS:  It identifies the document.  It says Overstall to  Hatler, a date, and then privileged.  Now, there is  no way for us to -- I mean, there is nothing I can  say.  If I was making a submission to your lordship  about why that isn't privileged, because I don't  know what the claim -- if the claim is for fees, for  example, which my friend yesterday conceded may be  relevant, then the claim would disappear.  So what I  am suggesting is that the onus does still remain  with my friends that they should assert the  strategic information; in other words, not what it  is but that there is strategic information.  THE COURT:  Categorize it.  MR. WILLMS:  Categorize it, and also assert that it is unrelated  to the substance of the report or the substance of  the evidence.  Would you agree that if that is done, if it is  categorized, then the onus should shift to the  parties seeking to get behind the privilege, the  prima facie privilege?  Well, if the category is set out with -- I would  say this, my lord:  That once that has done the  obligation, and I am speaking only for myself here,  but I am agreeable to assuming the obligation to  advise my friends of the reasons why I say that it  should be disclosed, and advancing arguments in that  respect.  THE COURT:  Yes.  All right, thank you.  Miss Koenigsberg?  MS. KOENIGSBERG:  I don't think I find myself in disagreement  THE COURT:  MR. WILLMS: 9339  Submissions by Ms. Koenigsberg  1 with either of my friends this morning.  I would  2 simply emphasize that in the resolution of what I  3 can call the very difficult cases that you have  4 posed and that we are dealing with in part again  5 this morning that it is the jurisdiction of common  6 sense of the trial judge which, in my submission,  7 must not only be reserved but must be given wide  8 latitude and, as an illustration in dealing with  9 just this last point that we have been talking  10 about, it is -- it seems fairly clear that if one  11 party advancing the claim of privilege sufficiently  12 identifies the area for the claim of privilege, then  13 they have in fact advanced the argument on behalf of  14 the privilege and discharged that onus, but it  15 always of course is subject to whether there has  16 been sufficient disclosure that the other side can't  17 adequately respond.  18 THE COURT:  All right, thank you.  Well, I have struggled with  19 this problem overnight and I have been greatly  20 assisted by counsel's submissions.  And as a  21 practical matter, I think I will proceed more or  22 less as I described yesterday but I propose to  23 compose a written judgment in this area because it  24 is a matter of great concern to your profession  25 generally.  The difficulty with that is that this is  26 an unusual, indeed extraordinary, case, and I am not  27 yet convinced that whatever I decide here will  28 necessarily be of useful general application to  29 ordinary litigation, but that's a matter that I am  30 still wrestling with.  31 I am going to adopt the practise that has been  32 disclosed to me with respect to the 15 items in Miss  33 Mandell's collection of documents for which  34 privilege is claimed, and I think that as a  35 practical matter the only way to resolve  36 difficulties is for me to look at the documents and  37 make a decision on them.  I hope that, by the  38 comments I will make in the 15 items that were  39 ventilated yesterday, that counsel will be able to  40 dispose of most of the difficulties that will arise  41 and, if not, they may reasonably expect that I will  42 try to apply the principles that I am going to  43 attempt to establish by the conclusions I reach with  44 respect to these 15 items.  I think that I am going  45 to do my best to conform to the principles  46 established by Mr. Justice Finch but, at the same  47 time, wherever possible, consistent with fairness 9340  Proceedings  1 and the integrity of the trial process to preserve  2 the historic privilege which attaches to a  3 solicitor's brief.  There is no duty that a -- that  4 the privilege must give way to the search for truth  5 within reasonable bound and indeed it is fundamental  6 to Mr. Justice Finch's judgment that the privilege  7 can no longer be regarded as absolute, but I am  8 going to preserve wherever I can what the  9 American -- our American friends call the work  10 product of solicitors.  All of which I hope will be  11 made more clear when I am able to give counsel my  12 reasons which will not be for a couple of days  13 because, unfortunately, I am committed to matters  14 this evening and tomorrow evening and I am going to  15 be here in court all day.  But certainly counsel can  16 expect to have my judgment early next week.  17 In the mean time, I think we should proceed if we  18 can on the basis of the practise that was followed  19 with respect to the 15 items that are in Miss  20 Mandell's collection.  To that extent, however, it  21 seems to me that I am now in a position where I must  22 have more assistance from counsel; for example, tab  23 10, I think I must now look at it.  It was offered  24 to me yesterday but I declined to do so, I declined  25 to look at it, because I did not want to see  26 something that hadn't been shown to opposing  27 counsel, but I think that we are at the intractable  28 interface, the privilege has been claimed, Mr.  29 Willms says, I can't say whether it's properly  30 privileged or not because I have never seen it, and  31 I think the only answer is for me to look at it and  32 make a decision.  I don't have a problem with tab 11  33 or I don't think I do but -- or tab 12 because  34 nothing seems to be blacked out; is that correct,  35 Miss Mandell?  36 MS. MANDELL:  You have a problem with tab 11 but not tab 12,  37 13 --  38 THE COURT:  What is the problem I have -- no, there is a problem  39 with tab 11, but I can deal with it.  40 MS. MANDELL:  I think you can.  You've got all the same kind of  41 information.  42 THE COURT:  I have got both copies.  43 MS. MANDELL:  No, you don't.  44 THE COURT:  I don't have the clear copy.  45 MS. MANDELL:  No.  46 THE COURT:  You are quite right.  So I need that tab as well.  47 MS. MANDELL:  And I believe that you need tab 15. 9341  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:  MS. MANDELL  THE COURT:  Well, tell me first, tab 13 is unedited.  MS. MANDELL:  That's right.  THE COURT:  And your friend has it?  MS. MANDELL:  Yes.  THE COURT:  All right.  And tab 13, I am not sure what it is  here for.  MS. MANDELL:  Well, if I could just say this, that tab 13, 14  and 12, these letters were all sent and there is no  claim of privilege with respect to them.  I was  going to use them in my argument to illustrate the  kinds of places that although it is slightly outside  the -- perhaps considered outside the area of the  subject matter that in any event we consider that it  was enough to disclose it, but not for your  lordship's decision.  Then I do not have a clean copy of tab 15, but I was  told that the blacked-out area or portion relates to  financial matters and do you maintain a claim of  privilege?  We don't claim privilege.  The only other is a  letter of December 20 which I have a copy of, your  lordship, where I advised my friend we claim  privilege and it is with respect to -- there is no  tab here with it.  It's really very much a part of  the same objection which you will be dealing with  with the Pojar memorandum which was taken from  tab -- tab 10, so I will hand up that letter to your  lordship at the same time.  THE COURT:  All right.  If I could have those, I will do my best  to complete a judgment as quickly as I can, but I  regret the intrusions but it is too late to deal  with it now.  So I will deal with it as quickly as I  can.  If it is of any assistance to counsel, I think  I can say also that, if I didn't mention this  before, I am going to try and confine myself to --  to considering documents that have come to the  attention of or have been in or are in possession of  the witness.  I have thought overnight of counsel's  musings about the report, and it seems to me that if  they did not reach the witness then I ought not to  get into them, and I will try to make that clear.  It is easy as I have said to conjure up scenarios  that might leave one to a train of inquiry that  would logically say that it must be disclosed.  Example I gave was if the lawyer was to write to his  associate, this report is excellent, it is a good  thing he doesn't know about X or Y, I think that's a 9342  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  professional matter that is beyond the scope of the  present investigation and I don't see how it affects  the content or the credibility of the witness if it  was never made known to him.  To that extent, I  apologize for this rambling description of what I  hoped sometime to say may be of some assistance.  All right.  Are we able to proceed?  MR. GRANT:  Yes, my lord.  Maybe possibly, though, I have — I  have not anticipated -- of course pre-anticipated  your ruling of the argument which I wasn't here on,  but I do have some disclosures to make with my  friends, I have some material to bring into the  court for this next witness, and possibly if we  could have a five minute break so we can get  organized.  THE COURT:  All right.  I will go to my chambers and madam  registrar can phone me when you are ready to  proceed.  THE REGISTRAR:  Order in court.  Court will recess.  (BRIEF ADJOURNMENT  10:27 A.M. TO 10:49 A.M.)  THE REGISTRAR:  Order in court.  THE COURT:  I am sorry to have to advise that this is another  day when I have a meeting scheduled at 11:15 so I am  sorry to get started and have to break again.  MS. MANDELL:  Thank you for bearing with us -- with me, my lord,  in terms of discussion.  THE REGISTRAR:  Stand and take the bible in your right hand,  please.  RODNEY CHILTON, a witness called  on behalf of the Plaintiffs,  having been duly sworn, testifies  as follows:  THE REGISTRAR:  Would you state your full name for the record  and spell it, please?  Rodney Chilton, C-h-i-1-t-o-n.  Sit down, please, Mr. Chilton, if you wish.  Thank you.  My lord, before commencing to qualify this witness,  I would like to set out the opinion I propose to  tender him to give.  Mr. Chilton is a climatologist,  and I am tendering him to give an opinion on the  relative rate of evapotranspiration.  Evapotrans --  THE WITNESS  THE COURT:  THE WITNESS  MR. GRANT:  THE COURT: 9343  R. Chilton (for Plaintiffs)  In chief by Mr. Grant  on qualifications  1  MR.  GRANT  2  THE  COURT  3  MR.  GRANT  4  THE  COURT  5  MR.  GRANT  6  THE  COURT  7  MR.  GRANT  8  9  10  THE  REGISTR  11  MR.  GRANT:  12  13  14  THE  COURT  15  MR.  GRANT  16  THE  COURT  17  18  EXAMINATION  19  Q  20  21  22  23  24  25  26  27  28  29  A  30  Q  31  32  A  33  Q  34  35  A  36  Q  37  38  A  39  40  Q  41  A  42  43  44  45  46  47  -- piration.  E-v-a-p --  I am sorry, just a minute.  E-v-a-p-o --  -- t-r-a-n-s-p-i-r-a-t-i-o-n.  I am sorry , p-i-r-a-t --  -- i-o-n  Yes.  Of berries over the territory which is shown in the  map atlas of the plaintiffs, I think it is  exhibit --  \R:      It's marked for I.D. 358.  Exhibit 358 for Identification and map 21 of that  atlas which madam registrar had arranged to have  available.  Map 21.  Yes, dealing with map 21.  Thank you.  IN CHIEF BY MR. GRANT:  Now, I have and possibly -- I have tendered to the  court a document book, it is a short document book,  which experts -- excerpts from evidence are included  as I will be making reference to them, and I will  deal with each document in it as a separate exhibit.  And possibly that green book, the witness copy -- or  the exhibit copy, could be put in front of the  witness and, at tab 1, my lord, is the curriculum  vitae for Mr. Chilton.  Do you want to look at tab  1?  Yes.  And you have had an opportunity before taking the  stand today to review this curriculum vitae?  Yes, I have.  And that curriculum vitae is your curriculum vitae  and sets out your qualifications?  Yes, it does.  Now, what I would like to ask you is if you can  explain to the court what a climatologist is?  Well, a climatologist studies past, future and  present climate or weather.  Yes.  And the part of climatology that I am involved with  is an applied climatology, and that relates to  man's -- the effect of climate on man, like  agricultural concerns and forestry.  They look at  things that are quite sensitive to things like frost  and heat units and the effect on crops, that sort of  thing. 9344  R. Chilton (for Plaintiffs)  In chief by Mr. Grant  on qualifications  1  Q  2  3  4  5  A  6  7  8  9  10  11  12  13  14  THE  COURT:  15  16  THE  WITNESS  17  THE  COURT:  18  THE  WITNESS  19  20  21  THE  COURT:  22  THE  WITNESS  23  MR.  GRANT:  24  Q  25  A  26  27  28  29  THE  COURT:  30  THE  WITNESS  31  32  33  34  35  36  MR.  GRANT:  37  Q  38  39  40  41  A  42  Q  43  44  45  A  46  Q  47  For example now, outside of the research you did for  this court case, are you involved in any specific  project that exemplifies what you are describing as  a climatologist?  Well, presently, I am looking at the kiwifruit in  British Columbia and we are trying to assess where  they can best be grown.  One such area is the  Saanich Peninsula and because that crop is a  subtropical crop, they are very susceptible to  winter damage and freeze free periods, so those two  elements we have examined in quite great detail to  try and find out where we can define the areas where  they can best be grown.  I thought it was settled they could best be grown in  Chilliwack?  :  You saw that on the news, did you?  I have some of them in my refrigerator at home.  :  Yes, that's pretty well the eastern limit of  kiwifruit.  They won't grow anywhere further in the  interior than that because it gets too cold.  Surprised it grows there.  :  Yes, marginal area actually.  Are you involved in that project in Chilliwack now?  Not in Chilliwack per se, but we have weather  stations there and we are monitoring the response of  kiwifruit to the weather.  There is five acres  there.  Is it successful in Saanich?  :  In Saanich it is, yes.  We haven't had losses  there like the Fraser Valley has been quite  devastated by 1985 winter.  There was over 50  percent loss of kiwifruit in that winter.  That was  a very early extreme event but that's the kind of  thing they are concerned about growing them here.  I'd like to refer you to your own work experience,  and you have a bachelor of science degree in  geography with a specialty in climatology from the  University of Victoria?  Yes, that's correct.  Which you obtained in 1971.  And in -- before that  you have a meteorology technician diploma from  Atmospheric Environment Service (Canada) 1966?  That's correct.  Now, in the course of your research for this  project -- when I refer to this project, the work 9345  R. Chilton (for Plaintiffs)  In chief by Mr. Grant  on qualifications  that you are doing that you are giving evidence  about today, did you use data from the Atmospheric  Environment Service?  Yes, we did.  Are you familiar with how that data is gathered from  your work -- from your diploma at that time?  Yes, I am.  Yes.  Can you explain what -- how Atmospheric Environment  Service data is gathered and given, for example, in  the area you covered?  Yes.  Atmospheric Environment Service data is  usually collected at airports and also by volunteers  and usually they collect temperature and  precipitation information, and they are usually  long-term stations.  Within the region -- study  region, the Smithers Airport is a good example of a  station that collects Atmospheric Environment  Service data.  And have you in the past yourself been involved in  collecting that type of data?  Yes, I was in the training course, and also with the  Provincial Government we had weather stations  throughout the province that we visited and  collected the charts and compiled the information  and then analysed the information.  Can you say anything about the quality of  Atmospheric Environment Service or A.E.S. data in  the climatology field?  Well, it is excellent where they have stations, it  is just that within British Columbia because it is  such a very topography, we often need additional  stations, but they have very high standards of  information that they collect.  And over what range -- time range is that data  collected say within the study area that you are  involved in this project?  Well, records go back to the 1930s certainly, and  prior to that a little bit, I think, too.  And did you use provincial data that you have just  referred to?  Yes.  Is this A.E.S data, is that federal or provincial?  :  That's federal data, yes.  And what type of provincial data did you use and  what do you know about how that data is gathered?  Well, that datea is much more extensive throughout  1  2  3  4  A  5  Q  6  7  A  8  Q  9  10  11  A  12  13  14  15  16  17  18  19  Q  20  21  A  22  23  24  25  26  Q  27  28  29  A  30  31  32  33  34  Q  35  36  37  A  38  39  Q  40  41  A  42  THE COURT:  43  THE WITNESS  44  MR. GRANT:  45  Q  46  47  A 9346  R. Chilton (for Plaintiffs)  In chief by Mr. Grant  on qualifications  this region.  They usually collect temperature and  precipitation elements at all of their stations, and  they put a far number -- far greater number of  stations out in a region for a short period of time  and then the data is compared to the Atmospheric  Environment Service data to come up with long-term  averages based on three to four year climate  networks.  Okay.  Could I have Exhibit 358 map 21 put in front  of the witness, please.  Your lordship may wish  to —  We are looking at map 21?  Yes.  This is the map.  Now, you have seen this map  before?  Yes, I have.  And on that map, does it show either A.E.S stations  or provincial stations or both?  It shows both.  Okay.  Can you just give an example for his lordship  so that he can understand what you are referring to  here?  Okay.  Near --  An example of each?  Okay.  All right.  We have got the key here  indicated the little squares.  Little black squares?  :  Little black squares are Provincial Government  stations, so that would be a Provincial Government  station right there.  And the triangles are the  Environment Canada, Atmospherice Environment  Stations, and there is one near New Hazelton, right  there.  This one here Hazelton, Temlaham, is that a federal  station?  That is as well, yes.  You can see it there anyhow,  put your fingerprint.  So there is quite good --  These are unmanned stations, are they?  :  That's right, yes.  All of them or are some of then manned?  :  Well, the airport stations have an operator there  at all times to look at the data every hour actually  and the -- some of the other stations are volunteer  stations and they are just operated by someone out  of his home.  He may just look at the station once a  day.  1  2  3  4  5  6  7  8  9  MR.  GRANT:  10  11  12  THE  COURT:  13  MR.  GRANT:  14  Q  15  16  A  17  Q  18  19  A  20  Q  21  22  23  A  24  Q  25  A  26  27  THE  COURT:  28  THE  WITNESS  29  30  31  32  33  34  MR.  GRANT:  35  Q  36  37  A  38  39  THE  COURT:  40  THE  WITNESS  41  THE  COURT:  42  THE  WITNESS  43  44  45  46  47 9347  R. Chilton (for Plaintiffs)  In chief by Mr. Grant  on qualifications  1  THE  COURT:  2  THE  WITNESS  3  4  5  THE  COURT:  6  THE  WITNESS  7  8  9  MR.  GRANT:  10  Q  11  12  A  13  14  Q  15  16  17  A  18  Q  19  20  21  22  23  A  24  25  26  27  28  29  Q  30  31  A  32  Q  33  A  34  Q  35  36  A  37  Q  38  39  40  41  42  43  A  44  Q  45  46  A  47  Yes.  :  Our stations are left for a month at a time and  then we have a technician that used to come in and  change the stations every month.  Change the location of the station?  :  No, change the data or remove the chart and put a  new chart on and take that chart back to Victoria.  Then it will be compiled.  When you are referring to our stations, is that the  provincial station?  Yes, that's when I was with the Provincial  Government.  And that's what I was getting to.  You worked with  the Provincial Government, Ministry of Environment,  as a climatologist for ten years from 1971 to 1981?  That's right, yes.  And your C.V. suggests that your duties included,  and they refer to two items, the coordination of  climate data requests from other government  agencies, industry and the public.  Can you  summarize what you did in that job?  Yes.  Well, we had requests for climate information.  Often it required analysis, so I'd go into the data  files and extract data that applied to that  particular problem and often I had to calculate  averages and extremes for those particular users,  and then distribute the information back to them.  In the course of that, would you be using data such  as the data you used on this project?  Yes.  The study of the various drawings?  Yes.  You were involved in the Southeast Kootenay climate  network's scientific research?  That's right, yes.  Now, this -- the commentary on Exhibit 358 (21), if  I can call it that, which was the map 21, the  commentary refers to potential evapotranspiration.  Now, can you explain -- did you work with potential  evapotranspiration mapping in the Southeast Kootenay  climate scientific research?  Yes, we did.  Can you explain what you -- why you did and what you  were doing there?  Well, an important part of the Provincial Government  programme is to assess and map the climate 934?  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. Chilton (for Plaintiffs)  In chief by Mr. Grant  on qualifications  capability for agriculture in different regions and  an important part of that is to assess the moisture  deficit within regions and, as a part of that, you  have to estimate the potential evapotranspiration  within that region, and you take the difference  between that and the rainfall to come up with the  moisture deficit.  It is very critical in  agriculture to determine how much irrigation is  required, et cetera, and --  THE COURT:  What is the — every man's definition of  evapotranspiration?  THE WITNESS:  Well, evapotranspiration can be defined as the  amount of evaporation from a soil surface and the  amount of transpiration from plants.  An evaporation  of course is just where the atmosphere changes  liquid or solid like ice or water to water vapour.  That's what evaporation is.  THE COURT:  I got as far as you measuring the amount of  evaporation from soil surface.  THE WITNESS:  Yes, and transpiration from plants.  THE COURT:  What do you mean by transpiration?  THE WITNESS:  Well, a plant during the day releases moisture in  response to solar radiation and temperature,  transpire much as we do I guess in a sense.  So  that's the transpiration part of that.  And I was  dealing here with potential evapotranspiration.  MR. GRANT:  That's the next question.  I wanted to ask you  what -- can you explain what potential  evapotranspiration is?  Is that potential?  THE COURT  MR. GRANT  Q  A  Potential, yes.  Yes.  Potential evapotranspiration assumes that  moisture is unlimited in its supply so you always  have a source of water to evaporate, so that's  what -- that's all that means.  Q    And then what -- so you assume that there is an  unlimited supply of liquid to evaporate?  A    To evaporate, that's correct.  Q    And what do you come up with then as a result of  that?  I mean, what's the --  A    In —  Q    I mean, is that potential evapotranspiration a  theoretical concept?  A    It is -- it can be addressed in different ways.  There is formulas to estimate the amount and also  there has been studies done on actual -- the actual 9349  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. Chilton (for Plaintiffs)  In chief by Mr. Grant  on qualifications  evapotranspiration, but that's very sight specific  and can only be done once or twice in a region.  Q    Have you had an opportunity before today to read the  commentary on the top of map 21?  A    Yes, I have.  Q    And is that commentary a summary of your -- of your  opinion?  A    Yes, it is.  Q    And you agree with it with a few exceptions relating  to some typographical errors which I will refer you  to?  A    Yes, I do. Yes .  MR. GRANT:  The second paragraph of that, the derivation of the  drawing index --  MR. WILLMS:  My lord, I wonder whether my friend is finished the  qualifications because I do have some questions on  qualifications for this witness.  It sounds like he  is getting into the opinion of the witness and has  passed beyond qualifications.  MR.  GRANT:  Q  A  Q  A  Q  A  Q  I am not finished the qualifications.  I am going to  the very point which was raised about  evapotranspiration on this map and I will certainly  give my friend a chance to cross-examine on  qualifications before I go to the opinions.  The  term potential -- you see that paragraph, it starts,  the term:  "Potential evapotranspiration",  And goes on:  "...may be defined as the amount of moisture  that, if available, would be removed from a  given land surface by evapotranspiration"?  Yes.  Do you agree with that?  Yes.  And is that an accepted definition amongst  climatologists?  Yes, it is.  Okay.  Then it says:  "Evapotranspiration is defined as the combined  loss of water from a soil surface and by  transpiration of plants." And that's what you just  A  Yes.  Q  And then:  9350  R. Chilton (for Plaintiffs)  In chief by Mr. Grant  on qualifications  1  2 And that's what you just described?  3  4  5  6 "Potential evapotranspiration (P.E.) then may  7 be regarded as a representative figure as the  8 drawing potential of the atmosphere."  9  10 Is that right?  11 A    Yes, that's correct.  12 Q    Is that what you were involved in in the Southeast  13 Kootenay climate networks research?  14 A   As a part of that.  15 Q    As part of that project?  16 A    Part of that project.  17 Q    Did you map potential evapotranspiration in the  18 Southeast Kootenays?  19 A   Actually, we didn't get to that stage, no.  20 Q    But you -- you gathered the data that could then  21 have been mapped?  22 A    Yes.  23 Q    Now, I have in your -- or you have in your C.V.  24 focused on two examples of what you have done with  25 the Provincial Government for the ten years you  26 worked with them.  Was there any other work you did  27 with the Provincial Government in that ten-year  28 period which -- which experience you relied upon in  29 the preparation of this -- of your work in this  30 case?  31 A    Well, generally you get a base of expertise when you  32 are working in an area and more specifically I  33 mapped potential evapotranspiration for the capital  34 regional district, that's throughout the Saanich  35 Peninsula, greater Victoria region, and I referred  36 to that in one of my reports.  37 Q    I am sorry, you referred to -- you referred to that  38 later in your C.V?  39 A    Yes, that's right.  40 Q    And then your work experience is that you were  41 contracted with the Grape Growers' Association?  42 A    Yes.  43 Q    And in that, you were doing climatological mapping  44 for them?  45 A    Yes, that's correct.  46 Q    And from 1983 to the present, you are now a  47 consultant and, amongst other things, you assisted 9351  R. Chilton (for Plaintiffs)  In chief by Mr. Grant  on qualifications  Dr. Mauro Coligado and Mr. Robert Marsh in  developing air pollution models?  That's correct.  Have you, in the work you have done in this case,  have you relied on Dr. Coligado's -- any material or  any of his work?  Yes, yes, I have.  And I won't go into it at the moment, but I just  refer you to tab 3 of your document book there, if  you could go to tab 3?  Yes.  Can you explain what that document is?  Yes.  This is the scientific documentation for the  computer programme that I used to determine the  potential evapotranspiration figures for the  Northwest British Columbia, within the study area.  Within -- in this work for this case?  Yes, that's correct.  And the very last page of that  document in tab 3 is the one that I was concerned  with and that was --  The second last page, would it be?  No.  The last page is references.  Oh, sorry, second last page, yes.  Page 17.  Mm-hmm.  Tab 3.  Tab 3 of document book, page 17, in the upper  right-hand corner.  Calculation and equasions.  Oh, yes.  Is that the equasion that you utilized in developing  the potential evapotranspiration for the food drying  index map?  Yes.  And could you explain who Dr. Coligado is and what  his --  Yes.  He is an agrometeorologist with the Provincial  Government, Ministry of Environment; he is a doctor,  and that's his specialty, is agrometeorology.  Did you work with him while you were with --  employed by the Provincial Government?  Yes, I did.  And also afterwards in this consulting --  I have talked to him about certain problems, yes.  Then I am going back to tab 1, and you described --  you have already referred to page 1 at the bottom,  your work with Agriculture Canada, the Ministry of  1  2  3  A  4  Q  5  6  7  A  8  Q  9  10  11  A  12  Q  13  A  14  15  16  17  Q  18  A  19  20  21  Q  22  A  23  Q  24  A  25  MR.  GRANT  26  THE  COURT  27  MR.  GRANT  28  29  THE  COURT  30  MR.  GRANT  31  Q  32  33  34  A  35  Q  36  37  A  38  39  40  Q  41  42  A  43  Q  44  A  45  Q  46  47 9352  R. Chilton (for Plaintiffs)  In chief by Mr. Grant  on qualifications  1 Agriculture and the Kiwifruit Growers.  That's what  2 you were just describing --  3 A    Yes.  4 Q    That's one of the projects you are working on?  5 A    Yes.  6 Q    And (d), under that, is the development of the food  7 drying index for the Gitksan and Wet'suwet'en  8 hereditary chiefs?  9 A    Yes, that's correct.  10 Q    I'd like you to refer to the subjects of the  11 publications while at university.  Do any of those  12 publications -- did they involve research which gave  13 you experience that was utilized in this project?  14 A    No.  15 Q    Okay.  I'd like to go down to the publications while  16 employed with the Government of British Columbia and  17 particularly under 2(a) Climatic Study -- I take it  18 the settlement suitability studies did not involve  19 research that gave you experience that you could use  20 in this work?  21 A    No.  Well, the (c) — 1(c).  22 Q    The South Kootenay?  23 A    Yes.  That was a part we -- I estimated the  24 potential evapotranspiration figures for that.  25 Q    When did you do that work in the Southeast  26 Kootenays?  27 A    When?  2 8 Q    Yes, when.  It was while you were employed by the  2 9 government.  30 A    Yes, that's right.  31 Q    But do you recall about what years?  32 A    It was just before I left the government, it was  33 1979 or '80, I believe.  34 Q    And then under the Climatic Studies, (a), you have  35 already referred to this summary for the greater  36 Victoria region and you map potential  37 evapotranspiration for the capital region; is that  38 correct?  39 A    Yes.  40 Q    Who did you do that work for?  41 A    Well, it was for the capital regional district.  42 Q    Yes.  43 A    They requested that the Ministry of Environment do  44 that work for them.  It was a whole portfolio of  45 different experts just giving an overview of the --  46 well, the potential for the greater Victoria region  47 in terms of ungulates and agriculture and a part of 9353  R. Chilton (for Plaintiffs)  In chief by Mr. Grant  on qualifications  that is the climate of the region as well, and  that's the part I was involved in.  And (b) and (c) on the bottom of that page, did that  involve any work that relates to the type of work  you did with the Gitksan chiefs or for the Gitksan  chiefs?  No.  Okay.  Page 4,  1  2  3  Q  4  5  6  7  A  8  MR. GRANT  9  THE COURT  10  MR. GRANT  11  Q  12  13  14  15  16  A  17  18  19  Q  20  A  21  22  23  24  25  26  Q  27  A  28  29  Q  30  A  31  Q  32  33  A  34  Q  35  36  A  37  Q  38  39  40  A  41  Q  42  43  44  A  45  Q  46  47  Going to page 4,  I am sorry, my lord, page 3, yes.  At the very top,  you were involved in a climate summary for  Templeton, McDonald and Grassy Creeks, three  watersheds in West and East Kootenays.  Is that part  of the work you describe as the Kootenay project?  Well, it is an off-shoot of the information we  collected in that region but it isn't part of the  project as set out initially.  Okay.  What did you do in that project?  I have trouble recalling this.  I assessed the  temperature and precipitation throughout these three  watersheds and provided the information to Greg  Utzig.  It was a written report actually.  I can't  remember that much more about that particular  proj ect.  When was that?  It was very early on in my career with the  government.  Career with the government?  Yes.  It was about 1973, I believe.  What about the climatology of the Gulf Islands Trust  area?  Do you recall about when you did that?  That was about the same time.  Early on.  And did that involve potential evapotranspiration as  part of that research?  Not that I can recall, no.  And then you have Agriculture Publications.  Were  these prepared, that is, (a) and (b), were they  prepared while you were with the government?  Yes, that's correct.  And (b) deals with springtime minimum temperature  patterns in the Smithers region of the Bulkley  Valley?  Yes.  What did you do that for and did you use data -- did  you use any of the same data that you used for this  proj ect? 9354  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. Chilton (for Plaintiffs)  In chief by Mr. Grant  on qualifications  Not actually, no.  freeze potential  Smithers region,  A    Not actually, no.  We were trying to assess the  or the freeze risk within the  and I collected the information  using a mobile temperature probe, that's suspended  on the front of a vehicle.  It is just a thermometer  and you go along and measure the temperature as you  go and you compare that information back to a base  station, like Smithers Airport, for example.  Now, what I'd like to ask you is if you -- you have  explained what evapotranspiration is and I'd like to  ask you if you are familiar with other studies of  potential evapotranspiration and if that was part of  the research that you have done?  Yes, I am familiar with other studies, yes.  Can you give some examples of some of those other  studies which you are familiar?  The Baier/Robertson approach is something with which  I am familiar.  Okay.  That's -- can you refer to tab 2 of your  book?  Yes.  And is that the Baier/Robertson --  Yes, that's right.  MR. GRANT:  My lord, I know your schedule and the time.  Maybe  we should break.  I wonder if tab 1 could be marked  as the next exhibit.  MR. WILLMS:  No objection.  THE COURT:  Yes, all right.  A  Q  A  A  Q  A  GRANT:  THE REGISTRAR:  Exhibit 790.  (EXHIBIT 790 - CURRICULUM VITAE OF RODNEY CHILTON)  THE COURT:  All right.  We will take the morning adjournment now  then, thank you.  THE REGISTRAR:  Order in court.  Court will recess.  (ADJOURNMENT AT 11:17. A.M.)  I hereby certify the foregoing to be  a true and accurate transcript of the  proceedings herein, transcribed to the  best of my skill and ability.  TANNIS DEFOE, Official Reporter  United Reporting Service Ltd. 9355  R. Chilton (For Plaintiffs)  In Chief by Mr. Grant  On Qualifications  Mr. Grant.  1  THE COURT  2  MR. GRANT  3  Q  4  5  A  6  Q  7  8  A  9  Q  10  11  12  13  A  14  Q  15  16  17  18  19  20  A  21  22  Q  23  24  25  26  A  27  28  29  30  Q  31  A  32  Q  33  34  A  35  36  Q  37  38  A  39  Q  40  41  A  42  Q  43  A  44  Q  45  46  A  47  I would like you to refer to tab number two in your  document book?  Yes.  And that's the Baier Robertson report that you have  referred to?  Yes, that's correct.  I note that it's dated February of 1965, that's --  that -- their research in terms of estimation of  latent evaporation from simple weather operations is  still accepted in the climatological field?  Yes, it is.  And -- I am still dealing with qualifications, my  lord.  Can you -- did you utilize their procedure for  other work you have done in the past and for the  work you have done for the Gitksan and Wet'suwet'en  chiefs?  I haven't used this particular formula in other work  but I have used it for the Gitksan-Wet'suwet'en.  Now, can you explain what Baier and Robertson, what  they stand for in the field in terms of what -- why  are they important contributors to this field, to  your field of expertise?  These particular researchers or working in the field  of evaporation, they are experts in this area.  And  they have developed formulas to estimate  evaporation.  All right.  And that's what this report was about?  Yes.  And they are -- they did work in -- for the federal  department of agriculture?  Yes, that's right.  That's Agriculture Canada now,  yes .  Can you turn to page 281 of that report which has a  chart on it?  Yes.  Now, you already referred to tab 3, Dr. Coligado's  formula?  Yes.  And you know Dr. Coligado and have worked with him?  Yes.  Did Dr. Coligado's formula -- does it have anything to  do with the Baier and Robertson formula?  Well, Dr. Coligado modified the Baier and Robertson  formula to suit British Columbia conditions, British 9356  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  A  MS.  R. Chilton (For Plaintiffs)  In Chief by Mr. Grant  On Qualifications  Columbia being so varied in topography and having  the large Pacific Ocean next to it makes it not the  same type of climate as you experience on the  prairies and eastern Canada where this formula was  derived.  The Baier Robertson formula?  The Baier Robertson formula was derived for the  prairie provinces and eastern Canada.  Using the chart on page 281, can you explain how Dr.  Coligado modified the Baier Robertson formula to  apply to British Columbia.  Yes.  KOENIGSBERG:  Excuse me, I don't mean to interrupt my  friend, but I, on behalf of the Attorney-General of  Canada, don't have difficulty with this witness's  qualifications in relation to climatology, in  relation to the application of evapotranspiration,  my concern to be allayed is in the area of food  chemistry on or relationships of different kinds of  foods, which we haven't heard about yet.  So that I  don't require that my friend take us through what  does sound to me like the body of the report in  order to qualify the witness.  I accept him as a  climatologist.  THE COURT:  And as an expert in evapotranspiration?  MS. KOENIGSBERG:  As an expert in the application of the formula  of evapotranspiration of Baier and Robertson.  My lord, I agree with what my friend says, it's the  food drying part of it that it will be my  submission, if I have an opportunity cross-examine  on qualifications, that this witness is not  qualified to give any evidence on.  It wouldn't seem, Mr. Grant, that you need to  trouble us with the qualifications of the witness on  climatology and evapotranspiration.  I don't know  where you think that takes you but --  I am not going to go further --  Do you propose to go further than that with this  witness?  Well, yes, of course what I asked was that he would  give opinions on the relative rate of  evapotranspiration of berries, and the territories  shown on map 21 and my friends refer to the fact  that they are concerned about it with respect to  food drying, and I will go to that point now with  his qualifications.  THE COURT: All right.  MR. WILLMS:  THE COURT:  MR. GRANT:  THE COURT:  MR. GRANT: 9357  R. Chilton (For Plaintiffs)  In Chief by Mr. Grant  On Qualifications  Now, referring you to map 21, Exhibit 258, it's titled  A Food Drying Index.  Now, can you explain what  potential evapotranspiration, and the study you have  done on that, has to do with food drying and what  relationship, if any, there is to that?  My lord, that is the opinion that my friend could  lead if he established any background in this  witness in food drying.  And so this goes beyond  qualifying the witness, this is asking him the  ultimate question.  Well, I am in a Catch-22, my lord, because the point  is if there is no relationship between potential  evapotranspiration and how it affects berries, then  my friend may have a point.  But, of course, they  agree that he is a climatologist and can talk about  potential evapotranspiration but my understanding of  his evidence is that you can't talk about potential  evapotranspiration if you don't have something such  as plants to deal with.  You don't talk about it  as --  I thought, I may be jumping to conclusions -- which  something all judges do, the only exercise we get  sometimes -- is that evapotranspiration is how a  plant gives off moisture.  I don't think plants give  off moisture through berries, do they?  Well, berries are plants.  The berry is the fruit of the plant, isn't it?  I  mean, the plants breathe through the leaves, not  through the berries, or do they?  When you are talking about potential  evapotranspiration -- maybe I can raise it through  another way.  Are you familiar with the work of Dyer and Brown?  Yes, I am.  And who are Dyer and Brown?  They are two researchers who have developed a hay  drying model.  Were they climatologists?  I am not certain, actually.  Now, in their work about hay drying, what -- when you  say they developed a hay drying model, did that have  anything to do with potential evapotranspiration?  Yes, it did.  Can you explain how they used that in determining a  hay drying model?  They have done field work to assess the response of  1  MR.  GRANT:  2  Q  3  4  5  6  7  MR.  WILLMS  8  9  10  11  12  MR.  GRANT:  13  14  15  16  17  18  19  20  21  22  THE  COURT:  23  24  25  26  27  MR.  GRANT:  28  THE  COURT:  29  30  31  MR.  GRANT:  32  33  34  Q  35  A  36  Q  37  A  38  39  Q  40  A  41  Q  42  43  44  A  45  Q  46  47  A 9358  R. Chilton (For Plaintiffs)  In Chief by Mr. Grant  On Qualifications  1 hay when it's cut, and clover.  2 Q   This is after it's cut?  3 A  After it's cut.  To environmental conditions, weather  4 parameters, such as potential evapotranspiration.  5 Q   And have you -- are you familiar with their report on  6 that?  7 A   Yes, I am.  8 Q   And in developing your analysis of the drying of  9 berries in the study area, did you utilize a similar  10 method as Dyer and Brown?  11 A   Yes, I did.  12 Q   Are you familiar with any research done with respect  13 to drying of grapes into raisins?  14 A   Yes.  I am familiar with some work done in California.  15 Q   All right.  And can you explain what type of work was  16 done in that study?  17 A   The researchers there looked at growing degree days.  18 MS. KOENIGSBERG:  I wonder if we could have that study  19 identified.  20 MR. GRANT:  I am going to get to that.  Just a minute.  21 Q   Do you recall the names of the researchers on that?  22 A   I believe one of the researcher's names was Kolb,  23 K-O-L-B, I believe.  I haven't referred to it in my  24 report, no.  Because I didn't utilize that  25 information.  2 6 Q   We will come to that in a moment.  Anyway, what did  27 they do?  28 A   They looked at what is called the growing degree day  29 and determined the time it takes to dry grapes into  30 raisins.  31 Q   What do they use, what kind of a day?  32 A  A growing degree day.  33 Q   What is that?  34 A  A growing degree day is -- I will have to think,  35 estimated based upon mean temperature during the  36 growing season.  For grapes, for example, it's ten  37 degrees Celsius, so you have a mean temperature of  38 ten degrees Celsius and when you reach that you  39 begin accumulating growing degrees days so if you  40 have one day when it was 12 degrees in temperature,  41 you would have two growing degree days.  And they  42 done the same thing after the grape's been picked,  43 when they are looking at grapes being dried into  44 raisins and they estimated the length of time it  45 would take to dry raisins based on this growing  46 degree day concept.  47 Q   You looked at, in preparation for the research you did 9359  R. Chilton (For Plaintiffs)  In Chief by Mr. Grant  On Qualifications  1 in the study area, you looked at both Dyer and Brown  2 and the Kolb's study on grapes?  3 A   Yes, I did.  4 Q   Did you utilize both of those studies or --  5 A   No, I just used Dyer and Brown's work.  6 Q   Why did you select that, their approach, over the Kolb  7 approach on grapes?  8 A  Well, the Kolb approach just assumes one parameter as  9 an input, and that's temperature.  And when you're  10 looking at mean temperature and you are comparing a  11 coastal climate to an interior climate, you may have  12 the same mean temperature on the coast as in the  13 interior but the drying potential of the atmosphere  14 is far greater in the interior than it is on the  15 coast.  For example, Prince Rupert may have an  16 overnight temperature of eight or nine degrees  17 Celsius in the summer and a high temperature of 16  18 or so and that would give you a mean temperature of  19 about 12 and a half to 13 whereas in the interior  2 0 you would have a much greater range in temperature  21 and that's in response to the atmosphere being much  22 dryer.  But your mean temperature would be the same  23 as the coastal conditions.  24 Q   So the Kolb only utilized the mean temperature?  25 A   Yes.  26 Q   If you had used that approach, you may have had a  27 distorted concept of potential evapotranspiration,  28 because you were dealing with a coastal and interior  2 9 environment in your study?  30 A   That's correct.  31 Q   Now, what variables -- I think that's the term you  32 used -- did Dyer and Brown use in the hay drying  33 study?  34 A   They have looked at rainfall, dew, and solar  35 radiation, which is the sun's energy, to come up  36 with a model to predict the length of time it takes  37 to dry hay.  38 Q   And what variables did you utilize?  39 A  Within this study region I used temperature, the  40 maximum temperature, that is, and the range in  41 temperature, and that's essentially the annual, and  42 also the I had estimates of solar energy at the top  43 of the atmosphere that takes into account the day  44 length  in various latitudes.  45 THE COURT:  I am sorry, solar energy at what?  46 A  At the top of the atmosphere, at the top of the  47 earth's atmosphere. 9360  R. Chilton (For Plaintiffs)  In Chief by Mr. Grant  On Qualif  1  MR.  GRANT  2  Q  3  A  4  Q  5  6  THE  COURT  7  A  8  THE  COURT  9  A  10  MR.  GRANT  11  Q  12  A  13  14  THE  COURT  15  A  16  THE  COURT  17  A  18  19  20  THE  COURT  21  22  A  23  THE  COURT  24  25  A  26  27  28  29  THE  COURT  30  MR.  GRANT  31  Q  32  33  A  34  Q  35  36  37  A  38  39  Q  40  A  41  Q  42  43  A  44  Q  45  46  A  47  At different latitudes?  For different latitudes, that's right.  And I would like you to go back to page 281 of tab 2  of your document book.  :  What is solar energy measured in?  I am sorry?  :  What is solar energy measured in?  That's the amount of energy received from the sun.  Is there a unit of measurement that you could call it?  They use Langleys and calories, those are the terms of  measure.  :  Calories?  Calories, yes.  :  What's Langley?  Per centimetre squared.  Now you're going to ask me --  I knew you were going to ask me that.  I can't  define a Langley but that's the unit --  :  What's the difference between solar energy and  temperature?  Well, that's a very good question.  :  I didn't intend to be a good question.  Just a lucky  guess on my part.  There is a one to one relationship between the amount  of energy received from the sun and the temperature  of the earth.  So they are very closely-related.  One's in response to the other.  :  All right.  Now, I would like you to go back to the chart and  there I would like you to refer to method one.  Yes.  Now it says meteorlogical variables that Baier and  Robertson used, and there is maximum range and Q.  0., what is that is Q. 0.?  That's the energy received at the top of the  atmosphere that I talked about earlier.  So you utilized those variables that they had?  Yes.  Now, at the very bottom, there is five, six variables  utilized under method eight?  Yes.  Why did you not use method eight as opposed to method  one?  I didn't use method eight because I didn't have the  input of those parameters.  The wind wasn't 9361  R. Chilton (For Plaintiffs)  In Chief by Mr. Grant  On Qualifications  1 measured, vapour pressure deficit, which is E. W.  2 minus E. A., I believe, I can't read it here very  3 well, and also Q. S. wasn't available, which is the  4 solar energy at the earth's surface.  5 Q   Now, did Dr. Coligado's formula which you utilized,  6 does it -- well, which -- looking at this chart,  7 first of all, which of these two -- of these methods  8 is the most accurate in terms of your standard of  9 error?  10 A  Method eight is more accurate.  11 Q   Now, does Dr. Coligado's work and the equation you  12 referred to in tab 3, does it -- did it assist you  13 in increasing the accuracy of method one?  14 A   Yes.  15 Q   And can you just explain how that happened, how that  16 worked, without getting into the formula itself?  17 A   No, I won't get into that.  Dr. Coligado did what is  18 called a regression, which compares method one  19 results to method eight for stations, weather  20 stations that have the information.  Like airports  21 collect all of this information so he could compare  22 the two formulas.  And he came up then with a  23 prediction, based on this regression, that could  24 modify equation one to give him results that were in  25 keeping with method eight.  26 Q   And so the use of Dr. Coligado's equation gave you  27 greater accuracy in terms of the potential  28 evapotranspiration?  29 A   That's right.  30 Q   I just want to go back to Dyer and Brown and you say  31 they used rainfall, dew and solar radiation?  32 A   Yes.  33 Q   But you adopted, my understanding is you adopted a  34 similar approach to the issue, the question before  35 you, about potential evapotranspiration for berry  36 drying, but used maximum temperature range of  37 temperature and solar energy?  38 A   Yes.  39 Q   At the top of the atmosphere?  40 A   Yes.  41 Q   Now, how did your variables  -- it appears that your  42 variables are different than their variables, and  43 how did you account for that in terms of your  44 research?  45 THE COURT:  I am sorry, Mr. Grant, I am not following this  46 because I don't see where Dyer and Brown have in  47 their — 9362  R. Chilton (For Plaintiffs)  In Chief by Mr. Grant  On Qualifications  1  MR.  GRANT  2  THE  COURT  3  4  MR.  GRANT  5  6  7  8  9  10  11  12  13  14  15  THE  COURT  16  17  MR.  GRANT  18  THE  COURT  19  20  MR.  GRANT  21  Q  22  23  24  A  25  Q  26  A  27  Q  28  29  30  31  32  A  33  Q  34  35  A  36  Q  37  38  39  A  40  Q  41  42  A  43  Q  44  A  45  46  47  :  This is Byer and Robertson.  :  Sorry, where those scholars have used rainfall and  dew in either methods one, four or eight?  :  No, I am sorry, my lord, it was probably me jumping  and I was -- I had the witness explain Byer and  Robertson which deals with latent evaporation, and  Dr. Coligado in his equation at tab 3 deals with how  method one can be accurately related to method  eight.  The witness has explained that.  Now I was  moving to not Baier and Robertson but Dyer and  Brown, they are the people who did the hay drying  work and their report is not within the document  book but it is cited in his report.   I mean  disclosed.  : I am confusing Dyer with Baier. How do you spell  Dyer, by the way?  :  D-Y-E-R.  :  Sorry, you will have to state the question again  then.  Mr. Chilton, you explained that Dyer and Brown when  they were measuring the drying of hay, used three  variables, meteorlogical variables?  Yes.  Rainfall, dew, and solar radiation?  Yes.  You have explained that you, in doing a similar study  in the preparation of map 21, utilized three  variables:  Maximum temperature, range of  temperature, and solar energy at the top of the  earth's atmosphere?  Yes.  And that follows method one of Baier and Robertson  that you have just explained?  Yes.  And it also takes in to contract Dr. Coligado's  equation to make that more accurate as in method  eight?  Yes.  Why did you use different variables than Dyer and  Brown?  Hm-hmm.  Firstly.  Okay, firstly.  Well, I disregarded the rainfall and  dew elements because we are dealing with drying  berries in a covered rack.  So those two elements  didn't come into play within my assessment.  And 9363  R. Chilton (For Plaintiffs)  In Chief by Mr. Grant  On Qualifications  1 these three elements that are listed in Baier and  2 Robertson's equation one are just the same sort  3 of -- in a sense they are saying that this is the  4 solar radiation input, that's what those three  5 elements represent, because there is a link with  6 temperature to solar radiation, there is that direct  7 relationship of temperature to solar radiation, so  8 that that's reflected in those three elements.  9 Q   And you -- okay.  When you said that the berry drying  10 wasn't covered, under cover didn't deal with  11 rainfall, this was an assumption that you were  12 informed about?  13 A   Yes, that's right.  14 Q   And you were operating on the basis of that  15 assumption?  16 A   Yes.  17 Q   Just one other thing, I would like you to refer  18 briefly to tab 5, and this is a transcript of a --  19 four page transcript of an interview relating to the  20 drying or making berry cakes at Kispiox in the  21 1920s, and were you provided with this transcript so  22 that you could understand how berry drying occurred  23 for the purposes of establishing how to -- how to  24 best determine the way of analyzing berry drying?  2 5 A   Yes, I was.  26 Q   Okay.  Now I would like to refer you to tab 4, and you  27 have had an opportunity yesterday to review this  28 transcript, this is the transcript of Olive Ryan's  29 evidence, pages 138 through to page 141 in this  30 action, you have had an opportunity just yesterday  31 to review this evidence?  32 A   Yes.  33 Q   And of course you didn't review it before you did your  34 report?  35 A   No, I didn't, no.  36 Q   And tab 6?  37 A   The same applies to tab 6.  38 Q   The same applies, you just had an opportunity to  39 review it?  40 A   Yes.  41 Q   And in reviewing that evidence of berry drying from  42 those -- from what you read as to the description of  43 Mrs. Ryan and Mr. Joseph, did that change your --  44 did that information have any effect on what you  45 determine in terms of potential evapotranspiration  46 for berry drying?  47 A   No, it did not. 9364  R. Chilton (For Plaintiffs)  In Chief by Mr. Grant  On Qualifications  1 Q   Okay.  I would like you to answer Mr. Willms' and Ms.  2 Koenigsberg's questions relating to your  3 qualifications.  4 A   Yes.  5  6    CROSS-EXAMINATION ON QUALIFICATIONS BY MR. WILMS:  7  8 MR. WILLMS:  9 Q   Do you have any habitual familiarity with the biology  10 of food plants of northwestern British Columbia?  11 A   No.  12 Q   Do you have any habitual familiarity with the biology  13 of other food sources of northwestern British  14 Columbia?  15 A   I am aware of some of that work.  I have seen some  16 publications on what the native people ate and so  17 on.  18 Q   I am talking about the biology of the actual food  19 source.  cell structure, things like that?  20 A   I have taken a certain amount of biology courses at  21 university so I am familiar with how cells and  22 plants work.  23 Q   Have you done any studies or research on drying food  24 plants?  25 A   No, I have not.  26 Q   Have you done any studies or research on drying animal  27 food products, like fish?  28 A   No, I haven't done any research in that area.  29 Q   Before preparing the map that is map 21, had you  30 prepared any food drying indexes before?  31 A   No.  32 Q   The basis for your report is an assumption that  33 berries and salmon, for example, dry the same way  34 that hay dries; is that right?  35 A   Yes, that's correct.  36 Q   But you have no way of knowing whether that's true or  37 not?  38 A  Well, I do.  Water vapour responds in the same way for  39 all elements of the earth and once a berry's removed  40 from a plant or hay's been cut the water vapour is  41 released to the atmosphere by weather conditions.  42 And we assume that the atmosphere is consistent in  43 its effect upon that water.  44 Q   What I am really asking you is not how the water --  45 how much water gets out of it, I think that's what  46 you are talking about, isn't it, how much water can  47 get out of whatever is being dried? 9365  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  Cross-exam by Mr. Willms  In Chief by Mr. Grant  On Qualifications  A   Yes.  Q   My question is, do you have any personal knowledge of  whether hay dries in the same manner as berries dry,  specific to the plant?  No, that work -- I don't think there has been any work  done in that area.  With respect to salmon, because salmon are mentioned  as well?  Yes.  Do you have any personal knowledge of whether salmon  dries in the same manner as hay dries?  No, I can't say that.  MR. WILLMS:  Those are all the questions I have, my lord.  THE COURT:  Ms. Koenigsberg?  CROSS EXAMINATION BY MS. KOENIGSBERG:  A  A  Q  A  MS.  THE  MS.  THE  THE  THE  KOENIGSBERG:  Q   I just have one further question, Mr. Chilton, have  you done any studies like the study that Dyer and  Brown did in the field?  No, I have not.  That is the hay, that's the hay people, are they?  Yes.  KOENIGSBERG:  Maybe I should make that clear.  Q   Applying a formula for potential evapotranspiration to  a foodstuff or any plant or animal in the field?  No, I have not.  What did you assume, that the berries would be in  trays, inside a building?  That's right, yes, I did.  Out of the wind?  Yes, but exposed to the atmosphere.  Like, I had  pictured or been told that these drying racks have a  roof of leaves but they are open on the sides so  that the --  So that is wind would flow through?  So that the wind can come through, yes.  And of course  they are responding to the temperature conditions  and the humidity in the air as well.  All the people at the garden shop tell me that wind  is as important a factor in deciding how much water  your plants need as temperature is.  It's fairly important, but research has indicated that  about 80 percent of the evaporation occurs in  response to radiation or temperature whereas only  about 14 percent occurs in response to wind.  But  it's still significant.  A  COURT  A  A  COURT  A  COURT  A  COURT  A  THE COURT  A 9366  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  A  MR. GRANT:  THE COURT:  A  Cross-exam by Ms. Koenigsberg  In Chief by Mr. Grant  On Qualifications  THE COURT:  Do you think my gardener at the at the garden shop  people are misleading me?  To a degree.  Mr. Chilton may be available to go there with you,  my lord.  And what is it that you are attempting to determine,  the length of time it takes a berry to dry so that  it has no moisture left in it or partially free of  moisture or what?  Well, I wasn't given any guidelines in that regard, I  was just told to come up with an idea for the region  of the drying potential and how much you might  expect in an average summer.  This map indicates the  regions where more drying of berries or what have  you, or any part of the environment, occurs.  What is it the greenest green are the best drying  areas?  Yes, the yellow green is the areas where there is the  most evapotranspiration.  That's in the river valleys mainly, is it?  Yes, and in the lee of the coast mountains.  And also  up in the plateau country on the far right, right  hand top corner is plateau country there.  That's well north of the claim area?  Yes, just slightly northwest.  No, my lord. This is an east and west orientation  so --  Or northeast.  It's -- that would be south, actually southeast.  And I should just say, my lord, that this -- that  the  black line proximates the claim area.  THE COURT:  A  THE COURT:  A  THE COURT  A  GRANT  MR.  MR.  A  GRANT:  THE COURT  MR. GRANT  THE COURT  A  THE COURT  A  THE COURT  MR. GRANT  THE COURT  MR. GRANT  THE COURT  A  THE COURT  Yes.  But  Yes.  it's not necessarily identical to map 9-A.  Well, for practical purposes within the claim  area it's the Bulkley River Valley?  Yes.  What is this area to the west, that's --  The Nass, is that the Nass?  I am looking way down south.  I can't read that word.  Is it Suskwa?  Yes.  The Morice River going up to the --  Yes.  And portions of the Suskwa and Skeena rivers  and up around Meziadin Lake are the drying areas  that you say are the better ones for the claim area?  Yes, that's correct.  And they are generally lower elevations? 9367  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:  A  THE COURT:  A  THE COURT:  MR. WILLMS:  Cross-exam by Ms. Koenigsberg  In Chief by Mr. Grant  On Qualifications  A   Yes, they are.  They are valley bottoms and again in  the lee of mountains where your climate becomes  dryer.  Yes.  Why wouldn't the Babine Valley be a good  drying area?  That Babine area is a little higher in elevation,  generally, up around Babine Lake and so on?  No, in the Babine River area -- sorry -- yes, the  Babine and the Sustut, and Upper Skeena areas are  not shown to be as good drying areas?  Not as good because it's slightly higher in elevation  and the  Temperatures are cooler.  All right.  Thank you.  Well, I will have to hear  counsel -- how do you want to do this, gentlemen,  you're challenging the qualifications of the  witness, are you, Mr. Willms?  My lord, the challenge is the food drying index and  the relationship to berries, and I, in the  cross-  examination, the witness admitted that he doesn't  have any habitual familiarity with the biology of  food plants in the area and any habitual familiarity  with the biology of food sources, that he has never  done this kind of project before this time, that he  has never mapped a similar map before this time,  it's the first time, and it's all based on the  assumption that food dries the same way as hay,  which I think, if you think about it logically, if  you have dried any food or cooked anything, it  doesn't make any sense.  And in my submission,  whereas he might be able to draw a map saying here  is what the Baier and Robertson formula shows here,  here and here, and he is not qualified to say where  the best places to dry food are in northwestern  British Columbia or, in my submission, anywhere.  Ms . Koenigsberg?  KOENIGSBERG:  I have to concur with my friend.  I have no  objections to this witness's qualifications if he  was going to talk about the relative rate of  evapotranspiration in the abstract, in this area.  I  accept that he properly, although I haven't had an  opportunity to actually check it yet, properly  accumulated the climatological data and that he  applied an appropriate formula for the purposes of  determining, if I can put it this way, the moisture  in the air.  But in relation to food drying, in particular  berries or fish, in my submission, he has no  THE COURT  MS 936?  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  Cross-exam by Ms. Koenigsberg  In Chief by Mr. Grant  On Qualifications  qualifications and has done no work and knows of no  work that was done upon which he, in my submission,  could only assist the court in evaluating the  climatological events and I certainly concur with my  friend that he it certainly doesn't lend itself to  my intuition that hay in a field dries in the same  way as berries under a cover.  And so, I can't  suggest to the court that it's just so obvious that  we ought to let it go.  In my submission, he is not  qualified to give the opinion that he has been  tendered for.  What I am not sure about, Mr. Grant, is whether or  not the witness has shown in his different colour  codes anything different from rates of  evapotranspiration.  Evapotranspiration?  Yes.  Well, my friends urge some form of logic which  contradicts what the witness said on cross-  examination, because it's not -- the witness isn't  saying that if you put hay in a field or berries in  a field, that they will dry at the same period of  time, or if you put hay in the field and you put  berries in the field, under a roof with open -- an  opening, that one will take one day and the other  will take five days.  If my friends are saying  that's what he can't say, I have no problem with  that.  What he is saying is that climatologically,  when you take a plant species, or any substance with  water in it, and you put it in the environment to  dry, you can use the potential evapotranspiration,  as has been done with grapes and with hay, and as he  has done with berries, and you can determine the  rate of drying in relationship, not to another  species of plant, but in relationship to another  geographical location and that's all he is doing.  He is saying, if you put berries anywhere in this  area, what you can do is, you can find,  climatologically, the best place in relation to  another place in this area where they would dry.  And that's all -- that's why it's a food drying  index in terms of rate of drying.  And that's what  he is qualified to say.  And he explained quite  simply to Mr. Willms that water vapour responds in  the same way in all elements and in all substances.  And what evapotranspiration is, as he explained in  the beginning of his qualifications, is the 9369  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:  Cross-exam by Ms. Koenigsberg  In Chief by Mr. Grant  On Qualifications  transpiration of water and, of course,  evapotranspiration is the evaporation of water, and  if you think of it, if we want to talk of it in  terms of logic, what is drying, drying of something  by atmospheric means -- and we are not talking about  cooking here, we are talking about drying -- there  is an element, I agree, in the evidence, that the  berries are pre-processed but then there is a drying  process. And that' all we are talking about  When you say pre-processed, they have been picked  and stripped of leaves and put in trays, is that  what you mean?  The evidence of Ms. Ryan, what happens they are  picked, they are stripped of their leaves, they are  put in a -- there is a wood box that they are put  in, which has had hot rocks in it, the rocks are  taken out, the berries go in there for blanching,  one might say, and then they are put on these drying  racks.  And of course all that we are talking about  here is -- and that her evidence is that it takes a  couple of days, her evidence was that it took two  days that they had to be dried.  And all he is  showing in a geographic and a topographic method, if  you are going to take berries and say where should  we dry berries, should I go to Prince Rupert or  should I go to Hazelton, then this map shows it  would be better to go to Hazelton to dry berries.  I suppose Mr. Chilton would be saying that the same  thing would apply if you were drying hay, you would  say that these yellow green areas are the best for  drying hay, are they?  Yes, that's correct.  Bananas, apples and anything else?  If you want to do say that, yes.  Salmon.  Salmon may be different from --  Well, no, it's water in an element and it's --  I know but there is a skin on salmon that's  different from the skin on a berry, is the skin on a  berry different from the structure of a stock of  hay?  Well, in the business of climatology, we have to  assume that potential evapotranspiration is reacting  in the same way through all elements and all plants  on this earth or we couldn't do estimations.  You  would have to take into account every different kind  of tree and every different kind of landscape there  THE COURT:  A  THE COURT  A  MR. GRANT  THE COURT  A  THE COURT  A 9370  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:  A  THE COURT  MR. GRANT  A  MR. GRANT:  Cross-exam by Ms. Koenigsberg  In Chief by Mr. Grant  On Qualifications  is on earth and we don't do that.  We give a  geographical, we look at it geographically and we  approach it assuming that the reaction of water  vapour is the same.  Are you really showing us by this map diagram, map  21, where the best areas are in this part of  northwestern British Columbia for drying hay?  Well, it could apply to anything being dried.  The best places to dry anything?  Right.  Yes, that's right.  That's why I have called if a  drying index, I haven't said in this index which  areas are excellent or poor, I have just said most  suitable to least suitable, and I think we can say  that based on this research.  The only point I think with respect to the berries  of course he was asked in terms of the terms of  reference he was asked with respect to berries, and  of course it was in analyzing the best method  approach, in terms of it could be a drying index for  other species.  I think the question of the  thickness of the skin and things like that that all  those would affect the length of time for a  particular thing to dry but what's important here is  geographically where would be the best drying area  if you use the same species.  My friend is saying  it's a big thing if it's hay or if it's berries  that's not relevant.  What's relevant is  geographically where are the best drying areas.  To dry anything?  To dry anything.  If my friends wanted to do an  analysis of hay drying, for some reason, in their  evidence, I am sure they would be welcome to utilize  this map and say, well, it shows we can dry hay  better in Hazelton than in Prince Rupert. But that's  not relevant.  I suppose also, Mr. Chilton, that if a hard working  Indian woman wanted to dry her kids' clothes, on an  outside line, the best place to dry them would be in  these yellow-green areas?  Yes, I could say that.  I don't feel uncomfortable  with this at all, because I was looking at a berry  here and a berry there, I wasn't looking at an  orange here and an apple there.  I am looking at one  element and I think we can compare elements when we  are looking at the response of that element to the  atmosphere.  THE COURT  MR. GRANT  THE COURT:  A 9371  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. WILLMS:  THE COURT:  MR. WILLMS:  if this  is .  THE COURT:  Cross-exam by Ms. Koenigsberg  In Chief by Mr. Grant  On Qualifications  THE COURT:  All right.  Any reply, Mr. Willms?  My lord, I think that your lordship put it,  is an index for hay drying, that's what this  He says it's an index for drying anything.  Well, the problem is, is that it's an index -- we  know that hay dries, somebody did a study on that,  we don't know whether or not if you fill a plastic  ball up with water and seal the plastic ball and put  it out in the sun, it will dry, and somewhere in  between may be the berries, with the skin, and fish.  So, in my submission is related to the word food  drying index.  If he wants to call it a drying  index, that things with water in them, that can dry,  without human intervention, dry better here, that's  fine.  But that's not what I understand my friends  are tendering this evidence for.  Ms . Koenigsberg?  MS. KOENIGSBERG:  I have to agree again.  As I said, I have no  difficulty if we want to call this a drying index.  That this, if this witness can tell us that there  are differences in this area geographically in  relation to the moisture content of the air, and I  am over- simplifying but essentially that's how I  understand it, and any inferences that can be drawn  to what kind of food you can dry more easily, and  the importance of that, of the climate to the method  by which you dry it, I think this witness is not  qualified and I am afraid that all of those  assumptions are in this report.  They are  particularly in the legend of the map 21, that is  that we are talking about different, very different  environments for drying than a field and we are  talking about fish and we are talking about berries.  We aren't talking about hay, unless we go to how we  arrived at the formula to look at berries.  My lord, it may be of assistance, my friend says,  you know, putting a plastic ball, but Ms. Ryan at  page 1140, at page four, describes this exact thing  and it's in evidence, and my review of the evidence  was this evidence was not contradicted on  cross-examination.  Question, line 28.  "Q   And you describe that the leaves are spread out  when the berries are dried.   how long was  that?  A  Well, that's when the berries were dried, you  know, and put on another rack over it and turn  MR. GRANT: 9372  In about two  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  Cross-exam by Ms. Koenigsberg  In Chief by Mr. Grant  On Qualifications  them around, and they did it.  days they will dry.  Q   Was there a way you could keep the berries from  burning while they are on the rocks?  A  Well, the rocks cool off as soon as they put in  with the berries."  Now, what she describes there, basically, is drying  on racks and that's been evidence in this case and  up to this point, there has been -- I don't think  there was any challenge to the fact that they did  that.  And there is ample evidence that the Gitksan  did that not for five years but for a long time.  But -- so, what Mr. Chilton was asked to do was to  determine where the best areas geographically within  this entire zone were for drying of berries, but  obviously from what he has explained to you, if we  had asked his opinion regarding the drying of hay or  any other species it would be the same.  But it's an  environmental and climatological map and I am not --  I take the view that with respect to the drying of  salmon, I am not pressing that because I think that  there is some different evidence as to the  methodology of drying salmon where it's based on  Mrs. Chilton's assumptions, that's why I focused  with respect to the berries.  THE COURT:  Well, I don't propose — I am sorry.  MS. KOENIGSBERG:  Sorry to bounce up again, my lord, but I think  if Mr. Grant is tendering this on the basis of Ms.  Ryan's evidence, it becomes important to assess what  did Mr. Chilton assume?  And what he assumed was  that the berries were covered and as a result of  assuming that, he changed the variables in the hay  drying study to accomodate that and removed the  effect, in -- mathematically, I assume, of rainfall  and dew.  Now for whatever else one might concern  oneself with, it might have also been taken into  account, he certainly adjusted the diagram to  accomodate a very different environment.  THE COURT:  Well, did you -- you did assume that the berries  were drying under cover?  A   Yes, I did.  THE COURT:  And does that constitute an alteration of variable  in the -- from the hay drying study?  A   It simplifies it because you have removed two  elements.  All I took from the Dyer and Brown work  was that hay dries in a linear fashion, that was the  basis of all I gathered from their work.  And when 9373  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  Cross-exam by Ms. Koenigsberg  In Chief by Mr. Grant  On Qualifications  you have a covered rack, you're still exposed to all  the climate elements that are in the air.  But it's  removing the input of rainfall and dew so that  simplifies things, you don't have to take those  things into account.  THE COURT:  Doesn't the question of something drying in sunlight  as opposed to shade make a difference?  A   No, that's what we talked about a little earlier, we  talked about the link between temperature and solar  radiation.  There is that direct relationship  between the two.  That's why Baier and Robertson  have been able to estimate evapotranspiration just  based on to get the temperature as you see in  formula one there, in the table there, that's all  temperature-related parameters.  THE COURT:  Doesn't it make a difference if it's in the shade?  Ice dries more quickly in the sun than the shade,  why wouldn't berries?  A  Well, it does, but I don't think that's the point.  Because this work is comparing covered racks  throughout the region and we are looking at that  throughout the whole of the region.  THE COURT:  I guess my problem is the same as Ms. Koenigsberg  raised, where do you get out of the hay drying model  into this one, one's in the sun and one's in the  shade.  MS. KOENIGSBERG:  I think Mr. Chilton also assumed that there  was a fire under the berries, which I would assume  affects the temperature?  A   I did for the first couple of days, I assumed that  they dried the berries initially by fire but they  utilized the atmosphere to dry the berries after  that.  That was in our discussions initially, that  the atmosphere was an in integral part of the  drying.  THE COURT:  Well, Mr. Grant, I don't think that I need an expert  to tell me that organic material exposed to the  atmosphere will dry.  I think that it falls within  the province of an expert to tell me what the best  drying areas are.  I have some difficulty seeing how  it can, how that can be related to any qualitative  question involved in drying and berries or fish --  you have abandoned fish.  I think that if the  evidence goes in, it can only go in on the limited  basis that it would show where, within the claims  area, one would get the best drying results for  berries of similar water content. 9374  Cross-exam by Ms. Koenigsberg  In Chief by Mr. Grant  On Qualifications  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  MR. GRANT  THE COURT  MR. GRANT:  THE COURT:  THE  MR.  THE  MR.  THE  MR.  Yes.  And take it no further than that.  Yes.  Except I would say that it shows where within  the area covered by map 21.  Yes.  Not just within the claims area.  Within map 21 area, yes.  That was the relative --  I think, for that limited purpose, the work's been  done, the witness is here and I think that I should  receive the evidence for that limited purpose.  Should I do that now or at 2 o'clock?  Probably at 2 o'clock, my lord.  Thank you.  All right.  (PROCEEDINGS ADJOURNED FOR LUNCH)  I hereby certify the foregoing to be  a true and accurate transcript of the  proceedings herein.  Wilf Roy  Official Reporter xh2 R. Chilton (for  Plaintiffs)  (PROCEEDINGS RESUMED PURSUANT TO AN ADJOURNMENT)  REGISTRAR:  Order in court.  GRANT:  My lord, before we go very far, and Mr. Willms cures  himself behind the map -- or Mr. Chilton, I mean.  Before we go very far, I wonder if -- Ms.  Koenigsberg, just before the break, talked to me  about a proposal relating to admissions that may  foreshorten necessity to lead certain evidence of  this witness at this stage.  COURT:  We have already got it all mapped, haven't we?  GRANT:  One way or the other.  If you want to wait for  another 20 minutes, we can finish or possibly take a  10 minute break and have the admissions.  COURT:  Whatever counsel prefer.  GRANT:  I have not had a chance to speak with Mr. Willms  concerning this and he just raised some things with  me that he would like me to sort out, and I wonder  if we could stand down now.  I will be in my chambers and madam registrar can  call me when we are ready.  REGISTRAR:  Order in court.  Court will recess.  THE COURT  THE 9375  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  Cross-exam by Ms. Koenigsberg  Discussion  On Qualifications  (BRIEF ADJOURNMENT  2:02 P.M. TO 2:22 P.M.)  THE REGISTRAR:  Order in court.  THE COURT:  Mr. Grant.  MR. GRANT:  Yes.  As with all these things, I am still here  leading this evidence so --  THE COURT:  All right.  MR. GRANT:  We made our efforts and I think that there is some  shortening accomplished.  THE COURT:  Something ventured, nothing gained.  MR. GRANT:  My lord, just to comment on your comments before the  lunch break, in terms of the qualification is  that -- that as you have suggested, that this map  358 (21) and the opinion of this witness that I am  seeking his qualification would be to give opinions  on the relative rate of evapotranspiration and as  you said of the same species of berry, for example,  throughout the area and that may be that there is  different types of berries, and if he took any one  of those and their relative rates of  evapotranspiration.  THE COURT:  Yes, as long as you are comparing similar berries to  each other.  MR. GRANT:  That's right, or similar fish to each other.  THE COURT:  Similar anything.  Similar anything to each other.  EXAMINATION IN CHIEF BY MR. GRANT:  Q    Right.  Now, I'd like to have you look at Exhibit  358 (21) and you have indicated before that you have  reviewed the copy, the summary at the top?  A    Yes.  MR. GRANT:  Now, I just wanted to advise the court, and you can  correct me if I am wrong, on the third column the  second paragraph under Baier-Robertson formula, and  it states:  "The formula first calculates latent  evapotranspiration."  And I have been advised by you, Mr. Chilton, that  that it should read, "latent evaporation."  It was a transcription error.  THE COURT:  Where is that?  MR. GRANT:  That's on — it is in map 21, the third column,  under the Baier-Robertson, the second full  paragraph, the formula first calculates latent 9376  Cross-exam by Ms. Koenigsberg  In chief by Mr. Grant  On Qualifications  evaporation.  Oh, yes.  1  2  THE  COURT  3  MR.  GRANT  4  Q  5  6  A  7  Q  8  9  10  11  12  A  13  THE  COURT  14  MR.  GRANT  15  16  THE  COURT  17  MR.  GRANT  18  Q  19  20  21  22  A  23  MR.  GRANT  24  25  26  THE  COURT  27  MR.  GRANT  28  29  THE  COURT  30  MR.  GRANT  31  Q  32  A  33  Q  34  35  36  A  37  Q  38  39  40  A  41  Q  42  A  43  44  45  46  47  Q  And then the formula -- and that's correct, Mr.  Chilton?  Yes, that's correct.  And the formula is LE equals, and it should be  bracket minus (-87.03) end bracket.  And again, you  use the correct formula but this was a matter of  error in the transposition onto this document; is  that correct?  Yes, that's right.  You mean the minus sign should be in brackets?  The entire thing.  It should be LE equals (-87.03)  end bracket.  All right, plus 0.928.  That's right.  Then on the same line it should be  bracket (temperature range), plus it should be plus  0.0486, so that that decimal point should be moved  over one figure to the left; is that correct?  Yes, that's correct.  And on the next line there are two brackets where it  says P.E. (adj) equals, and then there is a bracket,  88.4 plus .66 and those two brackets --  There is no brackets on my line.  On the fourth column.  PE equals 88.4 plus .66,  there should be no brackets between those figures.  All right.  That's correct, Mr. Chilton?  Yes, that's correct.  And I would just have you make those markings on  that document on the exhibit or the document that's  in the exhibit book?  Okay.  Thank you.  And now, can you explain what you were  asked to do and what you did do and what assumptions  you based your work on to do this mapping?  Yes.  The beginning of the work?  I was asked to come up with a map of the drying  potential in the northwest part of British Columbia  and I looked at it in a few different ways and  finally came up with the technique of potential  evapotranspiration as my tool to do this.  Okay.  And in the preparation, were you given -- did 9377  Cross-exam by Ms. Koenigsberg  In chief by Mr. Grant  On Qualifications  1 you -- were you referred to any specific elements  2 that you were analysing the drying for?  3 A    Well, in the original contract it was stated that  4 they were interested in fish and berries.  5 Q    Did that have any impact on the methodology that you  6 used that they were looking at fish and berries?  7 A    No.  8 Q    Okay.  Now, in the second line it says that the  9 drying index used on the map -- I am sorry, this is  10 the first paragraph of the map, my lord:  11  12 "The drying index used on the map was prepared  13 to assess the capability of the atmosphere to  14 dry fish and berries in the open air or in a  15 smokehouse."  16  17 Now, if that said the drying index used on the map  18 was prepared to assess the capability of the  19 atmosphere to dry organic elements through the --  20 through estimates of potential evapotranspiration,  21 would that be equally -- an equally correct  22 statement with respect to what you were doing?  23 A    Yes, it would.  24 Q    And so the specific elements that the Gitksan were  25 interested in didn't have a bearing on the  2 6                development of this map?  27 A    No.  28 Q    Now, can you explain to his lordship, and first of  29 all in this region that you're established, was this  30 region the area that you were instructed to prepare  31 the map for?  32 A    Originally it was a larger area.  It extended  33 somewhat beyond these borders.  34 Q    To the east?  35 A    Mostly to the east, that's right.  36 Q    Which would be the area covered now by this  37 summaration at the top?  38 A    Yes, that's correct, and the original mapping was  39 done at different -- on a different scale of map as  40 well.  41 Q    And what scale was that?  42 A    It was one to five hundred thousand miles.  43 Q    And the maps that are at the back of the room, there  44 are five base maps and seven overlays, were those  45 maps prepared by yourself?  46 A    Yes, they were.  47 Q    And the data from them was transferred onto this 9378  Cross-exam by Ms. Koenigsberg  In chief by Mr. Grant  On Qualifications  1 map?  2 A    Yes.  3 Q    By somebody else?  4 A    Yes.  5 Q    And you reviewed this map to ensure that it  6 corresponded?  7 A    Yes, I reviewed the map.  8 Q    Would it make a difference in your report in terms  9 of this mapping if you, for example, instead of  10 talking about berries drying as you described this  11 morning which you understood, you are talking about  12 fish, salmon, that was being dried in a smokehouse  13 and it was being dried in a smokehouse throughout  14 this area or in smokehouses throughout this area in  15 the same method, would that have an affect on or  16 change the drying index?  17 A    No.  As long as the smokehouse was open to the  18 elements from the side that the atmosphere was or  19 wind and so on was permitted to pass through the  20 smokehouse, it wouldn't change it.  21 Q    Okay.  I'd like you to look at the photographs on  22 358 (21) in the upper right-hand corner?  23 A    Yes.  24 Q    You see there, those buildings.  If I said to you  25 that that was a photograph of a smokehouse, a fish  26 smokehouse, and that was the type of smokehouse that  27 was being used, would that affect your opinion with  28 respect to the drying index for fish, and I must say  29 that when you look at the photograph on the left you  30 can see that there are cracks between boards but  31 there are boards and there is a doorway?  32 A   As long as those cracks are of sufficient size -- I  33 can't see too much from this one.  I assumed they  34 were more open than that actually, but seeing there  35 is cracks, you tell me there is cracks, I think it  36 would be valid to have my index where that -- I  37 can't tell from the picture, though.  38 Q    No, I understand and fair enough.  This picture was  39 not -- these two pictures were not pictures that you  40 utilized in preparing your data?  41 A    No, not at all, no.  42 Q    Now, in the third paragraph of the summary there is  43 reference made to the field drying of hay, and then  44 there is a statement:  45  46 "It is assumed that fish and berries dry in a  47 similar linear manner." 9379  Cross-exam by Ms. Koenigsberg  In chief by Mr. Grant  On Qualifications  1  2 Is that your statement?  3 A    Yes, it is.  4 Q    Okay.  Why do you assume that fish and berries dry  5 in a similar linear manner?  6 A    I am assuming that water vapour, once it is  7 available to the atmosphere, would respond in the  8 same way no matter if it is hay or a berry that's  9 been picked.  10 Q    What do you mean by a linear manner?  11 A    Well, the response would be consistent with say  12 temperature.  There would be a one to one  13 relationship of temperature to evaporation, for  14 example, and there wouldn't be an exponential curve,  15 it wouldn't drop off at a certain temperature; it  16 would just continue to rise at a certain rate.  17 Q    Is that assumption -- is that an assumption that you  18 made -- is that an assumption that climatologists  19 use?  20 A    Yes.  We have to assume that elements are going to  21 respond in a similar fashion or we wouldn't be able  22 to map things like -- such as potential  23 evapotranspiration and it's mapped on a world-wide  24 scale for different landscapes.  25 Q    I see.  And is that a type of an assumption that  26 would be used in the type of work that you referred  27 to earlier you did, for example, with respect to  28 while you were with the province with respect to  29 agricultural areas?  30 A    Yes.  31 Q    You would use the same assumptions?  32 A    Yes.  33 Q    Now, just listen carefully, Mr. Chilton.  Let us say  34 that I showed you something that -- a report by some  35 other climatologist who had studied -- had and  36 determined that fish and berries do not dry in a  37 similar -- in a linear manner, okay, and you -- and  38 since you did this report you had additional  39 information that show -- show that that was not the  40 case, would that affect your mapping of the drying  41 index, the food drying index?  42 A    Could you repeat that question again, please?  43 Q    If something came to your attention, and I am not  44 saying there is, let us say if it came to your  45 attention since you did the report in 1987, that  46 fish and berries do not dry in a linear manner,  47 would that affect your food drying index? 9380  Cross-exam by Ms. Koenigsberg  In chief by Mr. Grant  On Qualifications  1 A    No, because we are looking at relative terms.  2 What's true of this area is -- you can compare it  3 over this region.  It doesn't matter if the response  4 is linear or not.  The figures are such that --  5 well, there is response to the atmosphere, and it  6 doesn't matter if it is linear or not.  7 Q    So there is a relationship and, if it is a linear  8 relationship, then this would apply and, if it's  9 some other relationship, then the same food drying  10 relationship would apply geographically?  11 A    Yes, that's true.  12 Q    Now, you have indicated this morning that the  13 rainfall and dew functions were disregarded --  14 A    Yes.  15 Q    -- in your calculations.  And is that based on the  16 assumptions that you were given that the food drying  17 was done in smokehouses or on covered drying racks?  18 A    Yes.  19 Q    Now, would this food drying index, this map 21,  20 still apply if berry drying -- if you subsequently  21 learned that berry drying occurred not under cover?  22 A    Yes.  23 Q    Why?  24 A   As long as you are comparing the berries in the open  25 throughout the region, it would apply.  26 Q    As long as the methodology of drying is the same?  27 A    Yes.  28 Q    Now, the statement near the end, the last paragraph  29 of the summary is that:  30  31 "The drying index is based on estimates of  32 evapotranspiration for the July to September  33 period and is derived from present day climate  34 statistics.  Although the overall climate may  35 have changed through time the most suited food  36 drying sites are expected to have remained the  37 same.  This is because the region's topography  38 is considered to be the principal climate  39 controlling factor."  40  41 Is that your statement?  42 A    Yes, it is.  43 Q    That paragraph?  44 A    Yes.  45 Q    And can you explain why topography is the principal  46 climate controlling factor?  47 A    Yes, because our weather systems move from west to 9381  Cross-exam by Ms. Koenigsberg  In chief by Mr. Grant  On Qualifications  1 east in the northern hemisphere and we have a block  2 of mountains and it's always existed since -- well,  3 at least since the glaciation, and this removes  4 moisture from the atmosphere as it passes over the  5 mountains, so you have this region in the lee of the  6 coast mountains that tends to be dryer and the area  7 on the windward slopes that tends to be wetter, so  8 it is the westerlies that are in concert with the  9 topography -- with the prime governing factor for  10 the climate of the region.  11 Q    Now, looking at this map, you've used a scale which  12 is at the top that goes from the least climatic  13 suitabilities for drying to the most, and it is less  14 than 125 milimetres to greater than 175 milimetres;  15 is that right?  16 A    Yes, that's correct.  17 Q    And you established that scale -- that scale could  18 be different if you were dealing with a different  19 area; is that right?  20 A    Yes, that was an arbitrary choice.  21 Q    Okay.  But the purpose of establishing this scale  22 was to show the relative drying potential?  23 A    Yes, that's right.  24 Q    Can you explain to his lordship what would be the  25 distinction between an area, let us take the middle  26 area of where you go from 125 to 150 milimetres, and  27 the bottom area where it is greater than 175  28 milimetres.  Is there a significant difference in  29 drying when you see that kind of relationship on  30 potential evapotranspiration?  31 A    That's fairly significant, especially over smaller  32 regions.  It wouldn't be so great in a region this  33 large but when you are dealing with valleys and  34 having a trend, then it becomes significant, yeah.  35 Q    What about in the less than 125 milimetres or  36 greater than 175 milimetres?  37 A    That's a significant difference.  38 Q    Okay.  Now, can you comment -- this was -- does this  39 map with that scale show the better -- the areas  40 that are more climatically suitable for drying?  41 A    Yes, it does.  42 Q    And those that are least suitable for drying?  43 A    Yes.  44 Q    Since you have done this report, has there been any  45 other data that has come to your attention that  46 makes -- that would make you alter the map -- this  47 mapping? 9382  Cross-exam by Ms. Koenigsberg  In chief by Mr. Grant  On Qualifications  No.  1  A  2  Q  3  4  5  A  6  Q  7  8  9  10  A  11  Q  12  13  A  14  Q  15  16  17  18  A  19  Q  20  21  A  22  Q  23  24  A  25  MR.  GRANT:  26  27  THE  COURT:  28  THE  COURT:  29  THE  WITNESS  30  THE  COURT:  31  THE  WITNESS  32  33  34  35  36  37  38  39  40  41  MR.  GRANT:  42  Q  43  44  45  46  A  47  Q  If you took, for example, the area near Prince  Rupert at Port Edward on the map, it is near the  bottom of the map.  Yes.  And you compared that, the area that's marked in  blue, and compared that with the area say at Kispiox  which is up the Skeena River and is in the brightest  green colour?  Mm-hmm.  Is that a significant difference in the drying  capability between those two areas?  Yes.  There is in -- for that period, yes.  Based on your opinion, is it correct, and this  mapping which you have done that the areas most  suitable for drying in this chart area would include  the upper Skeena Valley from Gitwangak to Hazelton?  Yes.  It would include the valley bottomlands from  northwest of Smithers through to Burns Lake?  Yes.  And it would include the Bell-Irving River drainage  base and south of Nangunsa Pass (phonetic)?  Yes, that's right.  You have that, I believe, my lord.  That's up in the  Meziadin area.  Yes, I see it.  And the small area around New Alvansh?  :  Yes, that's right.  Why would that be?  :  Well, these figures are -- that you can see nearby  the figures for -- could you pronounce that for me?  Seasrinnish, is it, are very close to 175.  And so  that really doesn't -- because my choice is  arbitrary on my designations, that area just appears  to pop up because there is just that one station  there that's above 175 milimetres.  These aren't  significantly lower but you have to make a choice  when you're dealing with classes like that.  In that  region there.  And I notice that on the scales on the map, and they  are quite small, they are quite small, that you have  numbering underneath these names, like at Nass Camp  is at 180 and at that place Seasrinnish is 163?  Yes.  What are those numbers reflective of? 9383  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  Cross-exam by Ms. Koenigsberg  In chief by Mr. Grant  On Qualifications  A That's the potential evapotra  using my -- the Baier-Roberts  Coligado adjustment for the p  on average.  It is an average  MR. GRANT:  I'd like to have marked as th  the document book which is th  material, and the -- and tab  material.  REGISTRAR:  The date?  nspiration that occurs  on formula of the  eriod July to September  figure.  e next exhibit tab 2 of  e Baier-Robertson  3 which is the Coligado  THE  MR.  stimation of Latent  er Observations,  5.  Coligado is May  climate statistics  THE  MR.  THE  THE  GRANT:  Baier-Robertson is entitled E  Evaporation from Simple Weath  article dated February 2, 196  1979, Ministry of Environment  particulars.  COURT:  Any objection?  WILLMS:  No, my lord.  COURT:  All right.  Tab 2 will be the next exhibit  REGISTRAR:  791.  (EXHIBIT 791 - TAB 2, ESTIMATION OF LATENT  EVAPORATION FROM SIMPLE WEATHER OBSERVATIONS)  THE COURT:  All right.  And tab 3 will be 7 92.  THE REGISTRAR:  Thank you.  792.  (EXHIBIT 792  TAB 3, DR. COLIGADO'S CALCULATIONS  FOR EVAPOTRANSPIRATION)  MR. GRANT:  Q  A  MR. GRANT:  THE COURT:  MR. GRANT:  And I would like to -- you indicated, if you refer  to tab 5, this was the information that was given to  you in advance of your work so that you understood  the basis upon which you understood how berry drying  occurred?  Yes.  I would ask that this be marked an exhibit for  identification at this time.  I concede it can't be  an exhibit proper, I am sure my friend would object  if I tried to.  793 for Identification.  (EXHIBIT 793 FOR I.D. - TRANSCRIPT OF MAKING BERRY  CAKES AT KISPIOX IN THE 1920s - N.J. STERRITT, N.B.  STERRITT DATED JAN. 2 6 AND 29, 198 6)  It is a February -- January 26 and 29, 1986  interview by M.J. Sterritt with Percy Sterritt 9384  Cross-exam by Ms. Koenigsberg  In chief by Mr. Grant  On Qualifications  1 entitled Making Berry Cakes In Kispiox in the 1920s.  2 THE COURT:  All right.  3 MR. GRANT:  4 Q    The other two tabs are documents -- are transcripts.  5 Can you explain to me why you -- I believe you refer  6 to in your -- in the summary that you dealt with,  7 the July to September period.  Why did you choose  8 that period for berry drying?  A    Well, that was the period that was indicated to me  that I should address.  Q    Okay.  So that was one of the parameters that you  were given in the course of preparation?  A    Yes.  MR. GRANT:  At this point, my lord, I would ask that map 21 be  marked as an exhibit, 358 (21).  THE REGISTRAR:  358 is for I.D.  MR. GRANT:  358 is only for I.D.  THE REGISTRAR:  All the maps that have been marked have been  marked for I.D.  THE COURT:  This one can be 358, it can be marked by itself.  MR. GRANT:  By itself.  THE REGISTRAR:  As an exhibit proper.  MR. GRANT:  This witness and a series of witnesses will be  dealing with all of these maps now.  MR. WILLMS:  My lord —  MR. GRANT:  I anticipate some of my friend's concerns.  I have  no objection to the disregarding or the crossing out  of the word "food" on the heading Food Drying Index,  the word "food" in the third line from the bottom in  the paragraph, the last paragraph.  THE COURT:  Where does it say -- oh, yes, Food Drying Index,  yes, sorry.  MR. GRANT:  Yes, on the right-hand side, and under Source  Chilton, Climatic Evidence, and I would take out the  climatic evidence of good drying areas in  northwestern British Columbia as a result of  discussions with my friend.  And maybe I should just  deal -- and with the corrections as my friend has  referred to, I have asked Mr. Chilton about this  change of wording in the first paragraph and would  ask the court to disregard the -- to alter the first  paragraph accordingly for the record, in any event,  that it would read:  "The drying index used on the map was prepared  to assess the capability of the atmosphere to  dry organic elements through the estimation of  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 9385  Cross-exam by Ms. Koenigsberg  In chief by Mr. Grant  On Qualifications  potential evapotranspiration."  Rather than that first paragraph and --  THE COURT:  " dry elements"?  MR. GRANT:  " dry organic elements through the  estimates ..."  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT:  MR. GRANT:  Q  MR.  A  Q  A  GRANT:  MR. WILLMS:  THE COURT:  MR. WILLMS:  THE COURT:  MS. KOENIGS  THE COURT:  THE COURT:  MR. WILLMS:  which is the last four words:  "...of potential evapotranspiration."  All right.  Now, just one other point.  On the very last line on  that first column, the top of the second column, it  says :  "Because most food drying in northwestern B.C.  is done in smokehouses or on covered drying  racks."  That is an assumption that you were operating under,  isn't it?  Yes.  And that -- you were told that and that's why you  disregarded the rainfall and dew function?  Yes.  Okay.  So I state for the record that of course that  statement isn't to establish through this witness  that that was done, it is an assumption.  With those  modifications, I would ask that -- and plus the  corrections I made earlier, I would ask that that be  marked as the next exhibit or Exhibit 358-21.  If I might have a moment.  Thank you, Mr. Grant.  No objection.  All right.  Ms. Koenigsberg.  I am only asking about  the exhibit at the moment.  BERG:  Oh, good.  There were three other things that  played here, my lord.  I have no objection.  Yes, all right.  (EXHIBIT 358-21  FOOD DRYING INDEX)  Are you finished, Mr. Grant?  My lord, I am sorry -- 9386  Cross-exam by Ms. Koenigsberg  In chief by Mr. Grant  On Qualifications  1  MR.  GRANT:  2  MR.  WILLMS  3  4  5  6  7  THE  COURT:  8  9  MR.  WILLMS  10  THE  COURT:  11  12  13  MR.  GRANT:  14  Q  15  16  17  18  A  19  Q  20  21  22  23  24  25  A  26  Q  27  28  29  30  A  31  Q  32  33  34  35  A  36  Q  37  38  A  39  Q  40  A  41  Q  42  43  A  44  Q  45  46  A  47  Q  Oh, my friend --  I hope the stamp is on it.  Just about the lining  on the map.  There is an outline on the map in black  and I don't know what that -- whether that is  submitted to prove anything.  If it is not submitted  to prove anything --  It is only a rough pictoral representing of the  general claims area as far as I am concerned.  As transferred to whoever drew the map.  Yes.  I don't know what mapping he was working from  but it doesn't matter.  It just shows the general  area.  Of course, your series of overlays, I am sure we can  pick one out that will match that, but that's -- Mr.  Chilton, the black outline, you don't -- you have no  knowledge of that black outline?  No, I didn't.  Okay.  And I have just two or three more questions  and then I am finished my direct examination, my  lord.  Did you do this research -- if you had been  doing this research for the Ministry of Environment  answering the same questions, would you have done it  any differently?  No, I wouldn't.  And prior to you commencing the research, were you  informed or advised of any areas that were preferred  by the Gitksan or the Wet'suwet'en for food drying  purposes?  No, I wasn't.  And prior to doing the research, were you shown  something similar to the outline in black on Exhibit  358-21 to show where the specific claims area of the  Gitksan and Wet'suwet'en was?  No, I wasn't.  So you worked equally throughout that entire area  shown on 358-21 without distinction?  Yes, and a larger area even at that.  And a larger area to the east?  That's right.  And that large area to the east is reflected on your  original overlays that were delivered?  Yes.  One other thing on Exhibit 358.  Did you -- does it  show microclimatic and upslope conditions?  Not on this map, no.  Why not? 9387  Cross-exam by Ms. Koenigsberg  In chief by Mr. Grant  On Qualifications  1  A  2  3  4  Q  5  A  6  Q  7  A  8  9  Q  10  A  11  12  13  14  Q  15  16  A  17  Q  18  19  A  20  MR.  GRANT:  21  THE  COURT:  22  23  24  CROSS-EXAM  25  Q  26  27  28  29  30  31  A  32  Q  33  34  35  36  A  37  MS.  KOENIG  38  THE  COURT:  39  MR.  WILLMS  40  THE  COURT:  41  42  43  44  MR.  GRANT:  45  46  47  This scale is far too small.  It couldn't map  microclimatic on this scale or even at one to five  hundred thousand, it couldn't map microclimates.  And what do you mean by microclimate then?  Microclimate is a climate on a very small scale.  Like an example, can you give us?  It can go anywhere from the size of this desk top to  a couple square miles I would call microclimate.  Did you map upslope conditions for drying?  Not within the valley bottoms.  I included the  plateau region which is a little higher elevation  but it isn't upslope per se.  It is again another  area just a little higher up.  Okay.  Did you map areas where there was little or  no climatic data?  No, I did not.  And does this map reflect your opinion as to the  best areas within this region for drying?  For drying, yes, it does.  Thank you.  Those are my questions.  Thank you.  Mr. Willm's or Ms. Koenigsberg, whoever  is going next.  NATION BY MS. KOENIGSBERG:  I think I have only one question in  cross-examination arising from the alterations of --  to the map 21 that my friend has made.  You have  told us, Mr. Chilton, that you have no special  knowledge or expertise in the relative properties of  foods and their rates of drying?  That's correct.  And anything that you have said in your evidence or  that is on map 21 as to the relative rates of drying  of any organic element is an assumption on your  part?  Yes, I have to say that.  3ERG:  Those are all my questions.  Mr. Willms, how long do you think you will be?  I will be longer than a few minutes.  Well, I don't need to take an adjournment today but  perhaps we should do so because madam reporter is  going to be relieved anyway at about this time, so I  suppose we should take an adjournment now.  My lord, before my friend proceeds, I would hope --  not pressing, but I would, as Miss Mandell said, I  anticipated that -- and corresponded with both my  friends that Mr. Chilton would take one day in total 9388  Cross-exam by Ms. Koenigsberg  Cross-exam by Ms. Koenigsberg  On Qualifications  1 and then I have another witness who was flown in for  2 tomorrow and Thursday, and I anticipate my friend  3 had some problems he wanted to associate with me and  4 I would just hope that we may be able to -- I would  5 ask the court's indulgence if it is only a few  6 minutes longer, if we can stay a little bit longer  7 today so we can complete Mr. Chilton so he can leave  8 the area.  9 THE COURT:  There will be no difficulty with me.  We will take  10 as short as possible adjournment then.  11 THE REGISTRAR:  Order in court.  Court will recess.  12  13 (ADJOURNMENT AT 3:00 P.M.)  14  15 I hereby certify the foregoing to be  16 a true and accurate transcript of the  17 proceedings herein, transcribed to the  18 best of my skill and ability.  19  20  21  22 TANNIS DEFOE, 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 9389  R. Chilton (For Plaintiffs)  Cross-exam by Mr. Willms  On Qualifications  1 (PROCEEDINGS PRESUMED FOLLOWING SHORT RECESS)  2  3 CROSS-EXAMINATION BY MR. WILLMS:  4  5 MR. WILLMS:  6 Q   Mr. Chilton, I am showing you a copy of an agreement  7 dated May 24th, 1985.  Is that your consulting  8 agreement with the Tribal Council?  9 A   Yes, it is.  10 MR. WILLMS:   My lord, Exhibit 784-9, please.  11  12 (EXHIBIT 784-9: CONSULTING AGREEMENT WITH TRIBAL  13 COUNCIL DATED MAY 24, 1985)  14  15 MR. WILLMS:  16 Q   And, Mr. Chilton, I am showing you a letter dated July  17 5th, 1985, from Mr. Overstall to yourself.  That's a  18 letter —  19 THE COURT:  The date?  20 MR. WILLMS:  July 5th, 1985.  That's a letter in reference to  21 the subject matter of your investigations here?  22 A   Yes, that's correct.  23 Q   My lord, Exhibit 784-10, please.  24  25 (EXHIBIT 784-10:  LETTER - OVERSTALL TO CHILTON DATED  2 6 JULY 5, 1985)  27  28 MR. WILLMS:  Perhaps if -- I have one question on the exhibit.  29 MR. GRANT:  Which one?  30 MR. WILLMS:  784-10.  31 Q   Mr. Overstall says, in paragraph one, numbered one, at  32 the bottom, that "there may be a problem using  33 measurements such as potential evapotranspiration or  34 degree days in that they only record the amount of  35 energy available and do not take into account the  36 final moisture content of the food being dried or  37 the ambient air humidity."  38 Is that statement true, to the best of your  39 knowledge?  40 A   Richard and I had this discussion and we concluded  41 that it wasn't relevant to what I was doing.  So, it  42 isn't true, no.  43 Q   You see on the next page Mr. Overstall suggests, "It  44 seems to me that with higher ambient humidity more  45 energy would be required to dry the food to a  46 required moisture content."  47 Are you just saying that wasn't relevant at all to 9390  R. Chilton (For Plaintiffs)  Cross-exam by Mr. Willms  On Qualifications  1 what you were considering?  2 A  Well, if that was the case, if there was higher  3 humidity, yes, it would take more energy to dry the  4 food, that's true.  But his little graph at the  5 bottom wasn't pertinent to what I was doing.  6 Q   But the part about air humidity relative to energy is  7 important, isn't it?  8 A   Yes, it is.  9 THE COURT:  But not to the relative drying conditions in various  10 locations?  11 A   Yes, it's taken into account in drying as well.  It's  12 the smallest part of three parameters, but it is a  13 consideration.  14 MR. WILLMS:  I will be coming back to this, my lord, the  15 humidity part.  16 THE COURT:  All right.  If you're going to come back to it.  17 MR. WILLMS:  18 Q   The next document is a memorandum dated January 4th,  19 1986 from Mr. Overstall to yourself, referencing one  20 of your reports.  That is referring to a draft  21 report that you made?  22 A   That is correct, yes.  23 Q   And so you did a draft of your report on -- in August  24 of 1985?  25 A   Yes.  26 Q   Do you still have a copy of that draft?  27 A   No, I don't, actually.  28 Q   Did you destroy it?  29 A   Yes, it was destroyed, that's right.  30 Q   Is that your normal practice when you're doing  31 research to destroy your draft?  32 A   I don't call it destroying, I just updated it.  It was  33 discussed at length and we felt it wasn't relevant  34 any more so we did destroy it.  35 Q   You say we?  36 A   Or I destroyed it.  37 Q   And I would ask that that be Exhibit 784-11, my lord.  38  39 (EXHIBIT 784-11: MEMORANDUM - OVERSTALL TO CHILTON  4 0 DATED JANUARY 4, 1985)  41  42 MR. WILLMS:  43 Q   The next document is a letter from Mr. Overstall to  44 yourself dated January the 7th, 1986, you received  45 that letter?  46 A   Yes, I did.  47 MR. WILLMS:  My lord, might that be Exhibit 784-12? 9391  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. Chilton (For Plaintiffs)  Cross-exam by Mr. Willms  On Qualifications  THE COURT:  Yes.  (EXHIBIT 784-12:  LETTER  DATED JANUARY 7, 198 6)  MR.  OVERSTALL TO CHILTON  A  Q  A  Q  A  Q  A  MR. GRANT  WILLMS:  Q   And you will see in Exhibit 784-12, Mr. Chilton, that  Mr. Overstall has enclosed a draft of your report  that incorporates all the data and opinion that he  feels is required for it to stand up in court?  Yes.  Do you still have a copy of the draft that Mr.  Overstall sent you under cover of this letter?  Yes, I do.  Do you have it with you today?  No, I don't.  That should be in Richard Overstall's  file as well.  He would have copies of all  correspondence.  Well, it's in your file and where is your file right  now?  Well, we were in the process of moving from house to  house and it got -- I have got boxes everywhere and  it's within those boxes.  I have -- Mr. Chilton did provide me with his file  and it doesn't have this document that now is  referred to here, but I must say that I advised Mr.  Chilton and he provided me with what I understood  was his file.  It appears it has this draft that --  it's got separated from that file that he has.  I  just want to advise the court of that because I know  my friend has asked if the file is here.  I have also asked many times for drafts, my lord.  The way I would like to leave it is like this, I  would like to leave a request with the witness for  that draft, and if anything arises out of it, I will  take that matter up when the time comes.  THE COURT:  All right.  MR. WILLMS:  Q   The next letter is a letter of February 19th, 1986  from Mr. Overstall to yourself; you received that?  A   Yes, I did.  MR. WILLMS:  My lord, Exhibit 784-13.  (EXHIBIT 784-13:  LETTER  DATED FEBRUARY 19, 198 6)  MR. WILLMS:  OVERSTALL TO CHILTON 9392  R. Chilton (For Plaintiffs)  Cross-exam by Mr. Willms  On Qualifications  1 MR. WILLMS:  2 Q   Can you explain the concern that Mr. Overstall is  3 discussing in paragraph numbered one about the time  4 period being too broad?  5 A   Just a sec here.  6 I am sorry, is that --  7 Q   It's under food --  8 A   Under food drying.  Just a minute.  9 Q   I take it Mr. Overstall is referring to, when he says  10 "you", is something that you told him?  11 A   Just a second.  I have to refresh my memory here.  12 Oh, yes, well, originally I had expressed to  13 Richard perhaps that the period that I look at  14 might -- it might be more valid to look at a longer  15 term period, May to September, perhaps, rather than  16 July to September.  I was -- I think I was trying to  17 incorporate into my map something about the ripening  18 period as well, and the tendency for them to do so  19 in different regions.  After discussion with him, we  20 decided just to do the July to September as  21 originally outlined.  22 Q   So that your map covers the climate for that three  23 month period?  24 A   Yes, on average, that's right.  25 Q   On average?  26 A   Yes.  27 Q   But if your map only covered that area for maybe  28 September it might be different?  29 A   No, I can't foresee it being any different in  30 patterns, no.  The actual figures, of course, would  31 be different but the patterns would be the same, or  32 almost identical.  33 Q   There are no month-to-month temperature differences  34 from July to September in any of the area that you  35 mapped?  36 A   There is, but relative to each other in that region, a  37 site A to site B, the relationship holds that it's  38 similar in September as it would be in July and  39 August as well.  40 Q   Isn't it cooler in the north in September --  41 A   Yes, it is.  42 Q   Isn't the temperature a lot closer in a period like  43 July?  44 A  Well, we are still in the summer period and there is  45 still these coastal influences that cool the climate  46 near the coast and the inferior is still as warm in  47 September as it was in July and August. 9393  R. Chilton (For Plaintiffs)  Cross-exam by Mr. Willms  On Qualifications  am just thinking of these weather maps that we see  all the time with the cold front coming down from  the north, and I am just wondering whether or not in  July whether the cold front is beyond the area and  in September it's part way down it?  No, generally, it stays north of this region,  certainly.  It wouldn't be October, late October,  where you start getting arctic air masses.  September is still summer in the north Pacific  region.  Was the gist of what you were getting at that if you  were looking at drying berries we should look at the  time period when we dry the berries?  That was my understanding originally, that that's what  I would be doing, yes.  I am showing you finally a letter of May 6th, 1986  from yourself, that's a letter from yourself to Mr.  Overstall.  Yes.  :  Exhibit 784-14, please, my lord.  (EXHIBIT 784-14 LETTER - CHILTON TO OVERSTALL  DATED MAY 6, 198 6)  In that letter you say, in the second paragraph after  the word first, "First, most of the requested  changes to the first draft have been made as  suggested in your edit."  How many drafts of the report did you prepare?  There was just -- I believe there was just the two,  the one that we discussed here and then the final,  except for slight typographical changes.  Well, there was one that you prepared in the summer of  1985?  Yes.  And forwarded to Mr. Overstall?  Yes.  And then Mr. Overstall sent one back to you, that he  had re-typed?  Okay, yes.  Then the final?  Just a moment.  Just a moment.  My friend, I think,  is referring to 784-12.  I don't know if -- and I  don't know why my friend says that he had the  second, that Mr. Overstall's second one he had  re-typed and had sent back.  It just says it  incorporates all the data and opinion and it could  1  Q  2  3  4  5  6  A  7  8  9  10  11  Q  12  13  14  A  15  16  Q  17  18  19  A  20  MR. WILLMS  21  22  23  24  25  Q  26  27  28  29  30  A  31  32  33  Q  34  35  A  36  Q  37  A  38  Q  39  40  A  41  Q  42  MR. GRANT:  43  44  45  46  47 9394  R. Chilton (For Plaintiffs)  Cross-exam by Mr. Willms  On Qualifications  be marginally annotated by hand.  Well, I actually read a little further in the  paragraph than my friend just did.  I read the part  where it says "I also enclose a copy of your  original transcripts so you can compare the two  versions."  That's in Exhibit 784-12.  I am sorry,  maybe I was jumping to conclusions that there was a  separate draft prepared by Mr. Overstall when he  returned it.  Maybe I could just ask the witness  that.  Could you rephrase it or repeat that question now?  You prepared a draft of your report and sent it to Mr.  Overstall?  Yes.  Mr. Overstall sent back your draft with comments on  it, and sent you a typed-up sort of clean report?  You know, my memory is fading on this because I can't  really recall that for sure.  You know, I just can't  recall it.  That's all there is to it.  I believe we  only went through about, with -- through one draft  before the final.  There was small typographical  changes after that.  All right.  Well, you're going to look for that anyway  so --  Yes.  The document that my friend and that you explained in  your evidence is Exhibit 791, the Baier and  Robertson report, this particular paper talks about  four weather elements, talks about solar radiation,  temperature, wind and humidity; is that right?  Maybe you could repeat that too, please?  Does the witness have that in front of him?  I have got the Baier and Robertson.  It's at tab 2.  Where does that refer to that?  Did you say Roman four?  Pardon?  Did you say Roman four?  It's Exhibit 791 and the four elements that I am  suggesting that are referred to in here are solar  radiation --  Where are you reading from, Mr. Willms?  The bottom of page one, and the paragraph  comparisons.  Oh, yes.  And at Summerland, B. C?  Yes.  1  2  MR.  WILLMS  3  4  5  6  7  8  9  10  11  A  12  Q  13  14  A  15  Q  16  17  A  18  19  20  21  22  23  Q  24  25  A  26  Q  27  28  29  30  31  A  32  MR.  GRANT:  33  A  34  MR.  GRANT:  35  A  36  THE  COURT:  37  MR.  WILLMS  38  THE  COURT:  39  MR.  WILLMS  40  41  42  THE  COURT:  43  MR.  WILLMS  44  45  A  46  Q  47  A 9395  R. Chilton (For Plaintiffs)  Cross-exam by Mr. Willms  On Qualifications  1 Q   And four weather elements, solar radiation,  2 temperature, wind and humidity?  3 A   Yes.  4 Q   And if you look -- and there is a list over on page  5 278, you can go through that list and see, for  6 example, that items two and three are temperature?  7 A   Yes.  8 Q   Items five, seven, eight and nine are solar radiation?  9 A   Yes.  10 Q   Item four is wind?  11 A   Yes.  12 Q   And item six is humidity?  13 A   That's correct.  14 Q   So those are the four elements that go into --  15 A   Yes, that's right.  16 Q   And one of the very important factors, and this is  17 over on page 283, under discussion, just starting  18 from the top of the page down to the third line, "It  19 was found that on average, over all stations and  20 years, variations in solar energy alone accounted  21 for 50 percent of the variations in..." and that's  22 "latent evaporation", isn't, it, E. L.?  23 A   Yes.  24 Q   Your formula, the formula that you used is primarily a  25 function of temperature, isn't it?  26 A   Yes, it is, but it's been modified the way I explained  27 this morning by Dr. Coligado's technique.  28 Q   But you have used one of the Baier and Robertson  29 formulas modified by Dr. Coligado?  30 A   That's right.  31 Q   The formula that you used is the formula that deals  32 with temperature and solar energy at the top of the  33 atmosphere or -- is that right?  34 A   Yes.  35 Q   Now, on map 21, which is -- there are two photographs  36 and my friend referred you to those two photographs  37 in the upper right hand corner?  38 A   Yes.  39 Q   Will solar energy account for 50 percent of the  40 variations of latent evaporation in that smokehouse?  41 A  Assuming that it's open to the elements the way I was  42 assured it was, it would, yes.  43 Q   Well, let's assume that it's open to the elements just  44 the way it looks?  45 A   I can see the door and cracks in the wall, and it  46 looks to be an opening here, yes.  47 Q   So, your evidence is that solar radiation will make a 9396  R. Chilton (For Plaintiffs)  Cross-exam by Mr. Willms  On Qualifications  1 difference in that smokehouse?  2 A   Yes, because temperature is tied to solar radiation.  3 Q   Temperature is tied to solar radiation, where the  4 solar radiation has a -- and there is two effects,  5 there is the solar radiation effect in the upper  6 atmosphere; is that correct?  7 A   That's used, that particular parameter, just to  8 indicate the length of daylight or the amount of  9 energy that's available at different latitudes.  10 That's why that parameter is used.  So when you go  11 north in the summer you get the greater receipt of  12 energy, the potential is there.  You see what I am  13 saying?  14 Q   What I am trying to get at is that direct solar  15 radiation depends on whether there is a barrier  16 between the sun and the item that the radiation is  17 falling on?  18 A   It does to a degree, but because I have indicated  19 earlier that temperature's intimately tied to solar  20 radiation, that there is that relationship that we  21 can express, because even if a standard Stevenson  22 screen, which is -- it's a weather box, they don't  23 put their thermometers out exposed to the sun, they  24 are in a slatted box and the temperature responds to  25 the solar radiation, but it's inside a box and it's  26 shaded, and it's slatted, so there is air movement  27 through, much as I assume is occurring in  28 smokehouses.  29 Q   Is it -- sorry, are you finished?  30 A   I had.  31 Q   Isn't it the case that primary drying factors in that  32 smokehouse are going to be the temperature and the  33 humidity in the smokehouse?  34 A   Yes, but that's in direct response to the outside  35 atmosphere.  36 Q   Well, it may be and it may not be, you don't know  37 that, do you?  38 A  Well, if it's open it would be and there is wind  39 permitted through the structure.  40 Q   Well, would it make a difference if there was a low  41 fire in the smokehouse?  42 A   I can't see that it would.  Not directly, no.  43 Q   Well, wouldn't that fire heat the smokehouse?  44 A   It does in an immediate area, but I was led to believe  45 that that isn't important after a day or two.  They  46 depend upon the atmosphere after the fires are used  47 for the initial drying.  So you're right, it 9397  R. Chilton (For Plaintiffs)  Cross-exam by Mr. Willms  On Qualifications  1 probably does in the first day or two but they still  2 depend on the atmosphere to dry the berries and the  3 fish.  4 Q   What I am suggesting is if there is a low fire in that  5 smokehouse that raises the temperature of the  6 smokehouse higher than the outside hair, the drying  7 capability inside is going to be better than  8 outside, is that right?  9 A   It should be, yes.  10 Q   If the humidity in the smokehouse is lower than the  11 humidity outside the smokehouse, then the drying  12 capability inside will be better than outside?  13 A  As long as the fire is on.  14 Q   Yes, I am assuming a fire.  I think there is something  15 about fires in there.  16 A  All right, for that period of time, yes.  17 Q   Just on the hay study, where was the hay dried, in the  18 open air?  19 A   Yes, it was.  20 Q   Exposed to all the elements?  21 A   Yes.  22 THE COURT:  Of course if the hay got partially dried and then  23 you had a rainstorm, it would get wet?  24 A   Yes.  25 THE COURT:  And you would have to repeat some of the process?  26 A   That's right.  They depend on a couple of days for  27 a no rain situation.  Here, of course, we are  28 talking about a covered area, that's why the  29 rainfall wasn't considered.  30 MR. WILLMS:  31 Q   You have, and this is referring to the description on  32 the top of the exhibit, if I can find it -- it's the  33 last column on the right-hand side, just immediately  34 to the left of the photograph, and you say there,  35 "Although the overall climate may have changed  36 through time the most suited drying sites are  37 expected to have remained the same.  This is because  38 the region's topography is considered to be the  39 principal climate controlling factor."  40 Did the Little Ice Age have an important effect on  41 the climate in this area?  42 A   I am not certain on that because I haven't seen very  43 much work in that -- for that period.  That was  44 during the 1500, 1600 period.  In Europe, of course,  45 it affected Europe but I can't say for sure.  46 Q   So, can I put it this way, you haven't considered the  47 effect of the Little Ice Age in this report? 9398  R. Chilton (For Plaintiffs)  Cross-exam by Mr. Willms  On Qualifications  1 A   Not directly.  But we still had the mountains and we  2 still had the air flow from the west generally, so  3 that the response of the climate in the lee of the  4 mountains is going to be relatively the same.  5 Q   But, the whole formula that you used is temperature-  6 dependent, it's temperature-related, isn't it?  7 A   That's correct.  8 Q   So that if the temperature is lower then the potential  9 evapotranspiration is lower?  10 A   Yes.  But the areas within that region are still going  11 to be relatively better than the area around  12 Hazelton, for example, than they are around--  13 further north, around the Babine, for example.  14 Q   So that at any particular time as a snapshot in time,  15 this may be a relative example of potential  16 evapotranspiration?  17 A   Yes, for snapshot, I would say that.  18 Q   But in terms of comparing today with 1850, you just  19 don't know?  20 A  We can't say for certain but I could would still say  21 the relative pattern will be the same but I can't  22 say for certain.  Because there wasn't any  23 meteorology instruments in that region.  You have to  24 go on other information.  25 Q   And I am working with your formula here of P. E., if  26 the climate was cooler and if the climate was wetter  27 100 years ago, the P. E. would be different  2 8 everywhere?  29 A   It would be relatively lower everywhere.  30 Q   That's right?  31 A   Yes.  32 Q   And the ability to dry anything in that would depend  33 on P. E. and the length of time it takes to dry  34 something?  35 A   Yes.  36 Q   And the P. E. would be lower, assuming it was  37 cooler --  38 A   If we assume that.  39 Q   -- or wetter, 100 years ago?  40 A   If that's assumed.  But I am still saying the relative  41 pattern is going to be the same.  42 Q   I understand that.  But I suppose what I am getting at  43 is that there may be certain fruits that will never  44 dry in the rain forests of the west coast of  45 Vancouver Island?  46 A   Certainly.  47 Q   No matter how long you leave the fruit out? 9399  R. Chilton (For Plaintiffs)  Cross-exam by Mr. Willms  On Qualifications  1 A   That's probably true, yes.  2 Q   And if the climate is different 100 years ago, that  3 may affect the -- not the ability of the atmosphere,  4 it will affect the ability of the atmosphere to take  5 up water; is that correct?  6 A   Yes.  7 Q   But it may also affect the relative ability to dry  8 anything?  9 A   Yes, yes.  10 MR. WILLMS:  I don't have any further questions, my lord.  11 THE COURT:  Mr. Grant?  12  13 RE-EXAMINATION BY MR. GRANT:  14  15 MR. GRANT:  16 Q   I believe you have been given a series of material.  I  17 only want to refer you to one, and that is the  18 Exhibit 784-10.  That's a July '85 letter.  19 THE COURT:  The one from Mr. Overstall with the graph on the  20 bottom.  21 THE REGISTRAR:  I am sorry.  Yes.  22 MR. GRANT:  23 Q   Now, you were asked about this and I just want to  24 refer you to the first page above that, you were  25 asked about that comment under number one, you said  26 that it was determined that it was not relevant.  27 Can you explain why you determined it was not  28 relevant for your report?  29 A   Yes, I will have to think about that, Peter, just for  30 a second.  I can't remember how the discussion went  31 after with Richard.  32 I will just read this again and refresh my memory.  33 MR. GRANT:  Go ahead and read it, yes.  34 A  Well, while I was doing this I assumed again, and  35 referring to the map, that the response of organic  36 elements as we have decided is linear and not as  37 Richard indicates in a curvalinear fashion.  He has  38 indicated that as the moisture changes within an  39 element, the response changes.  That was what that  40 discussion was about.  So, we -- our -- I more or  41 less decided to go with it the way it is appearing  42 now.  43 Q   Is that consistent with Coligado's equation in terms  44 of it being linear?  45 A   No, that's the Dyer and Brown.  4 6 Q   Dyer and Brown?  47 A   Yes. 9400  R. Chilton (For Plaintiffs)  Re-exam by Mr. Grant  On Qualifications  I am sorry.  Yes.  Going to the second page of that same document, you  were asked about that second -- the comment at the  top, "It seems to me that with higher ambient  humidity more energy would be required to dry the  food to a required moisture content."  Yes.  Did you determine that that was relevant?  That's true, because the coast is an indication of  that, where you have higher humidities on average,  it does -- it would require a greater length of time  to dry something.  And did you take that into account in your  calculations in your analysis, using the Baier and  Robertson and Coligado?  Yes, that's what that attempts to do, because you are  looking at the range of temperature and the maximum  temperature.  That's a reflection of whether the  climate is a continental or a coastal-type climate.  And Baier-Robertson, in their method eight, takes into  account humidity?  Yes.  Could I look at that just for a second?  Yes, it's at tab 2, page 281.  Yes, that's the vapour pressure deficit, that's the  last term in that column.  And the Coligado equation you have already indicated  enables you to use the variables in method one but  to bring them into the range of category eight,  thereby bringing in the humidity factor?  Yes, that's right.  Now, you were also asked about if the humidity in the  smokehouse, referring to the picture and photograph,  if the humidity in the smokehouse was lowered by a  fire in the smokehouse and it was different, this  would have an impact on the drying in the smokehouse  as opposed to outside.  Mr. Willms raised that with  you?  Yes, I remember, yes.  So long as the smokehouses that were used all were  using the same method of drying, that is with a low  fire plus openness to the outside atmosphere, would  that -- the fact of that low fire in the smokehouse  have an effect on the 358-21?  Well, when you are comparing the same structure, no,  they are not.  :  Assuming the same fuel?  1  Q  2  A  3  Q  4  5  6  7  8  A  9  Q  10  A  11  12  13  14  Q  15  16  17  A  18  19  20  21  Q  22  23  A  24  Q  25  A  26  27  Q  28  29  30  31  A  32  Q  33  34  35  36  37  38  39  A  40  Q  41  42  43  44  45  A  46  47  THE COURT 9401  R. Chilton (For Plaintiffs)  Re-exam by Mr. Grant  On Qualifications  Yes, true.  1  A  2  MR.  GRANT  3  Q  4  5  6  7  A  8  Q  9  10  A  11  Q  12  13  14  15  A  16  Q  17  18  19  A  20  Q  21  22  23  24  25  26  A  27  28  THE  COURT  29  30  A  31  32  THE  COURT  33  A  34  35  36  37  THE  COURT  38  A  39  THE  COURT  40  41  A  42  43  44  45  46  47  Now, you were asked as well about the Little Ice Age  and if the Little Ice Age applied to this area, if  it covered this area, the Little Ice Age is a period  of time when there was a cooling?  A cooling of the climate, yes, that's right.  And you are familiar with the Little Ice Age  references, this is a term, you have read on that?  Yes.  But if the Little Ice Age applied to this area, the  region, would that affect the relative drying  throughout the region, that is, the relationship  between, say, Hazelton and Prince Rupert?  No, it would not.  It would lower the drying capability throughout the  region but there would still be preferred areas for  drying?  Yes, that's true.  Do you know how cold -- I am going back to the Little  Ice Age concept -- how cold or humid would it have  to get in the region before there would be  absolutely no drying?  My friend gave you an analogy  of the rain forests of Vancouver Island, as a  theoretical option.  Yes, that's a difficult question to answer.  I don't  think I could answer that, to be honest.  : Cold enough that the moisture would just freeze in  the product?  Yes, but during the Little Ice Age the temperatures  were only a couple of degrees Celsius lower.  :  At some elevations?  No, this is in Europe.  I am citing European.  There  is little very little, if any, information for this  region in the Little Ice Age.  We don't even know if  it affected this region.  :  We know that if affected the Rockies?  Not that I am aware of.  :  You haven't seen the Colford Glaciers that were  taken in 1816 and taken today?  That could be in response to just more precipitation.  It doesn't have to be that it was colder.  If you  get the field -- these glaciers, they are going to  move, and it doesn't -- it could just be wetter.  It  doesn't have to be colder.  I am not aware of any  great degree of work that's been done in that area  here.  I know the glaciers have responded and they 9402  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. Chilton (For Plaintiffs)  Re-exam by Mr. Grant  On Qualifications  are moving back.  THE COURT: They are moving back.  A   Yes, but most of the work has been done in Europe  because they have a far longer record and we don't  seem to correspond in our climate to the European  situation.  It seems when they get very cold  winters, we have very warm winters, it's the way the  atmosphere seems to be set up.  THE COURT:  You say you don't know whether the Little Ice Age,  as it's called, had any effect on this area at all?  A   No, I don't.  There has certainly been warmer periods  and colder periods.  Back 12,000 years ago there was  a colder period right after the glaciers retreated  and a warmer period around 7,000 years ago.  But  most of the work it looks at pollen samples and so  on and they don't consider that time frame.  Thank you, Mr. Chilton.  Mr. Chilton, just two things.  When you use the term  linear, do you mean that it dries evenly?  Yes, as a --  There is no drying curve?  That's right.  It's a direct one to one relationship,  just dries in a straight -- a straight line is  assumed.  All right.  And can you tell me, what are Mr.  Overstall's scientific and professional  qualifications?  A   I don't know.  I think he is a geologist.  Could we  address the question to Peter?  THE COURT:  No.  A   I believe he is a geologist.  THE COURT:  Thank you.  Should we adjourn?  MR. GRANT:  That would be appropriate.  MR. GRANT  THE COURT  A  THE COURT  A  THE COURT:  Thank you.  (PROCEEDINGS ADJOURNED UNTIL 10 O'CLOCK A. M.  WEDNESDAY, NOVEMBER 9, 198 8)  I hereby certify the foregoing to be  a true and accurate transcript of the  proceedings herein to the best of my  skill and ability. 9403  R. Chilton (For Plaintiffs)  Re-exam by Mr. Grant  On Qualifications  Wilf Roy  Official Reporter  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47


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