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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1988-11-09] British Columbia. Supreme Court Nov 9, 1988

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 9403  Proceedings  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  MR.  THE  THE  MR.  THE  MR.  THE  MR.  THE  NOVEMBER 9, 198 8.  VANCOUVER, B.C.  REGISTRAR: Order in Court.  In the Supreme Court of British  Columbia, Vancouver, this Wednesday, November 9, 1988.  In the matter of Delgamuukw versus Her Majesty the  Queen at bar, My Lord.  GRANT:  The next witness is Dr. David Hatler.  Before I  request Mr. Hatler to --  COURT: H-a-t-t-1-e-r?  WITNESS: One t.  GRANT:  H-a-t-1-e-r.  I had understood I had overlooked  advising Your Lordship of a schedule that counsel have  generally agreed on with respect to this -- the  remainder of this sitting, this three week sitting.  And that is that we anticipate, by agreement of  counsel, that Dr. Hatler's evidence will be completed  by the end of tomorrow, that is examination and  cross-examination, and the next witness will be a  Sybolle Haeussler.  And Sybolle Haeussler's evidence  will commence on Monday and complete on Tuesday.  It  is anticipated by counsel on all sides that her  evidence would take no longer than two days.  That is  the entirety of the scheduling that we had blocked for  expert witnesses for this three week session.  So we  anticipated that at the end of Tuesday we would then  adjourn to November 28th, which is when we were going  to proceed with cross-examination of witnesses in  Smithers for a two-week period, and I believe Your  Lordship was available for a two-week continual  period.  COURT:  Yes.  GRANT:  And both my friends are aware of the scheduling, and  I just received a response back from the provincial  defendants regarding changes to the out of court  scheduling of those witnesses, but if we can keep to  the schedule, I can say of those cross-examinations it  would be 28 witnesses that would be completed within  the two weeks, so the week and-a-half for preparation  is -- will be fully utilized by counsel.  COURT:  All right.  Well, I —  GRANT:  But I am —  COURT:  That's the stage where I feel that I don't have much  control over what happens in these matters.  I say  that I much prefer that we sat everyday and got this  beast wrestled to the ground, but with the  difficulties counsel have, if that's what they say 9404  Proceedings  1 what has to be done, well then, I don't think there is  2 much point fulminating contrary-wise.  3 MR. GRANT: I am sorry, My Lord, I, of course, wasn't here on  4 Monday, and I had intended to raise that with you  5 yesterday morning.  We, of course, originally  6 anticipated using both weeks.  This two-week period  7 was for Dr. Daly, and that's where, as you may recall,  8 Mr. Goldie and Mr. Rush had a discussion with you, and  9 there was confusion on both sides that Dr. Daly -- the  10 defendants were unable to assure that they would  11 complete him, which would leave him under cross for  12 some months, because of his unavailability.  So then  13 we've had to readjust, and that's what we have  14 corresponded counsel concerning.  15 THE COURT:  All right.  Is it possible to obtain any kind of an  16 estimate of when the plaintiffs' case might be  17 finished, assuming this scheduling that you are  18 talking about now?  19 MR. GRANT:  Counsel have been discussing it, and if we can  20 complete these cross-examinations, I believe that we  21 are looking at the completion of the plaintiffs' case  22 mid-March.  And I think that I advised Mr. Justice  23 Macdonell, when he asked a similar question, of late  24 February or March.  And I am speaking now from memory,  25 My Lord.  I wouldn't want to be sworn to it or bound  26 by it, but I think that's what we ballparked right now  27 from my recollection.  28 THE COURT:  Will the defendants be ready to proceed with the  29 defence when the plaintiffs are finished their case?  30 MR. WILLMS:  The defendants will be ready to proceed whenever  31 the plaintiffs finish.  32 THE COURT:  So we might finish the evidence in the first six  33 months of next year?  34 MR. WILLMS:  Assuming March, my understanding -- my  35 understanding, My Lord, is two to four months for Her  36 Majesty's defence.  37 THE COURT:  So that's tight.  38 MR. WILLMS:  So it would be tight.  39 MS. KOENIGSBERG:  I think we still anticipate a maximum of two  40 months, and we think we are looking at six weeks.  We  41 had anticipated that we would be finished the evidence  42 next fall.  43 THE COURT: Next?  44 MS. KOENIGSBERG:  Fall.  45 THE COURT:  Yes.  Would counsel be ready to proceed with  4 6 argument immediately, or would they want a few months  47 in between? 9405  Proceedings  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR. GRANT  THE COURT  MR. GRANT  THE COURT  MR. GRANT  THE COURT  I believe that our position would be that we would  like some time in between.  Have counsel discussed amongst themselves whether  there should be any particular form of argument, such  as an outline, a written outline supplemented by oral  argument or anything of that --  That hasn't been discussed.  I think that the  plaintiffs -- we anticipate that the argument will be  certainly in writing on something of this magnitude,  but we certainly haven't discussed it.  All right.  Well, as I have said before, I am in the  role of captive here.  I don't have any choice what  you decide to do.  What about the -- I was going to  say the transpiration, I'll say the transportation of  exhibits and things like that to Smithers?  Will there  be anything required in that nature?  Well, of course in a way it's particularly -- it's  in the defendants' hands. This is cross-examination  on a series of witnesses, so --  Well, perhaps the defendants can give some thought  to that question.  Some planning will have to go into  the movement of very much material.  If it's not  extensive, it can be done quite conveniently, but we  are going to have a few days after the completion of  the evidence.  Well, there will be a week and-a-half,  but counsel should perhaps be giving some thought to  that question.  All right.  Want to proceed, Mr.  Grant.  DAVID FRANCIS HATLER, a witness  called on behalf of the  Plaintiffs, having been duly  sworn, testifies as follows:  THE REGISTRAR:  Would you state your name for the record,  please, and spell your last name.  THE WITNESS:   David Francis Hatler, H-a-t-1-e-r.  THE REGISTRAR:  Thank you.  You may be seated.  MR. GRANT:  My Lord, this witness, as with the next witness,  will -- are tendered for the purpose of proving  certain of the maps in the map atlas, and this witness  is a biologist whose -- I am tendering him with  respect to his opinions as to the range and  distribution -- the range and distribution of the  following nine species within a study area, which area  includes the area in the claim and the surrounding 9406  D.F. Hatler (for Plaintiffs)  In chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. GRANT  region:  Caribou --  : I'm sorry?  :  He is qualified -- I am tendering him as an expert  to give opinion evidence as to the range and  distribution, and I should say and Zoogeograpy, which  is Z-o-o-geography, of the following nine species:  caribou, mountain goat, moose, mule deer, hoary  marmot, spelled h-o-a-r-y, beaver, snowshoe hare,  black bear and grizzly bear, and ultimately that maps  11 through to 19 show the range and distribution of  those.  I have -- I am not going to tender this as an  exhibit right now, but I will be referring to the  bibliography in terms of his qualifications, and so  I'll produce copies of his summary opinion report  which was delivered to my friends in February, 1987.  I should just advise my friends of certain changes  to that, that were typographical errors.  They are  already corrected on your copy.  Maybe I can advise  them outside of court -- I don't think they are of any  great importance -- at the break.  EXAMINATION IN CHIEF BY MR. GRANT:  Q  A  MR. GRANT  THE COURT  MR. GRANT  Q  Dr. Hatler, you -- can you give me a summary of your  academic qualifications as a biologist?  Yes.  I have a Bachelor's Degree and Master's Degree  in Wildlife Management from the University of Alaska,  that was in 1964 and 1967, and then a PhD in Biology  from the University of British Columbia, completed in  1976.  I have a -- just before proceeding, I have a  document book which incorporates -- actually five  volumes of this document book which incorporates a  sampling of the references referred to by Dr. Hatler  in his report.  I am certainly not going to refer to  all of those references, and certain copies of them  are being brought up right now, the extra copies.  I  am only referring now to the C.V., which is at Tab 1  and which my friends both have.  And I'll provide the  exhibit copy in a moment as soon as it comes into the  courtroom.  Tab 1 has the C.V. of --  Thank you.  Now, Dr. Hatler, I am going to refer you to my copy of  this Tab 1 of this black document book, volume 1 of  the Hatler documents, and is that your curriculum  vitae? 9407  D.F. Hatler (for Plaintiffs)  In chief by Mr. Grant  1 A   Yes, it is.  2 Q   And you have reviewed it and it is accurate?  3 A   Yes.  4 Q   Okay.  Generally I will ask that after my friends have  5 had an opportunity of looking at the index, I will be  6 asking that the entire volume be marked as an exhibit,  7 but possibly this C.V., because it's a different  8 category than the others, should be marked as the next  9 exhibit bracket one.  10 THE COURT:  No objection to marking this?  11 MR. WILLMS:  No, objection, My Lord.  12 THE COURT:  The next exhibit number is?  13 THE REGISTRAR:  Be 794-1.  14 THE COURT:  Will be the C.V.?  15 MR. GRANT:  That will be the C.V.  16  17 (EXHIBIT NO. 794-1 - CURRICULUM VITAE OF DR.  18 HATLER)  19  20 THE REGISTRAR: Thank you.  21 MR. GRANT:  22 Q   Now, I am just going to refer to your exhibit.  You  23 were born in Havre, Montana in the U.S.A. in 1941?  24 A   Yes.  25 Q   And you have already described your degrees you have  2 6 received.  And you are -- you have been involved in  27 1962 in the biological field, is that right?  28 A   That's correct, in the formal biological field.  I've  29 been an amateur ever since I was old enough to look  30 outside.  31 Q   Okay.  And I am just going to highlight some of the  32 points of your C.V.  In 1971 and 1972 you contracted  33 with the Canadian Wildlife Service to do an inventory  34 of land and sea mammals of Pacific Rim National Park  35 on Vancouver Island?  36 A   That's correct, yes.  37 Q   And did that -- can you just summarize what that --  38 what experience you gained there which has assisted  39 you as a biologist and in the work you have  40 subsequently done?  41 A   From 1968 through to 1973 I was living in that area  42 conducting my PhD studies on wild mink in the area,  43 and as is my habit, I maintain records on all the  44 birds and mammals that I encountered during that time  45 period, so that I had an extensive series of  46 observations already for this -- for the contract work  47 that you have referred to.  I did some additional 9408  D.F. Hatler (for Plaintiffs)  In chief by Mr. Grant  1 field studies throughout the proposed park area,  2 Pacific Rim park area, and then referred to the  3 existing literature, such as it was, on the appearance  4 of mammals in that area, and I did the bird study in  5 the same time period.  I don't know if you referred to  6 that.  7 Q   Were you doing your thesis at that time?  8 A   I was doing the thesis work, yes, the field work.  9 Q   The field work for your thesis?  10 A   That's right.  11 Q   And from 1974 to 1979 you were -- in the period of  12 1972 to 1974 you worked with the Canadian Wildlife  13 Service and did an inventory of birds.  That was  14 subsequent to your inventory of land and sea mammals,  15 is that correct?  16 A   That's right.  17 Q   And then '73 to '74 you worked with Envirocon and you  18 participated in assessment of impacts of B.C. Rail on  19 hunting, trapping and fishing in the Stuart-Trembleur  20 area?  21 A   That's right.  22 Q   Just to focus, can you -- was the Stuart-Trembleur  23 area included in what I will refer to as the study  24 area, that is the study area you dealt with before the  25 report you prepared here?  26 A   Yes.  27 Q   And then from 1974 to 1979 you worked as the Regional  28 Wildlife Biologist for the B.C. Fish and Wildlife  29 Branch, that's the B.C. of Environment as they call it  30 now, in Smithers for the Skeena region?  31 A   That's right.  32 Q   Now, can you explain what area you covered, you were  33 responsible for as the Regional Wildlife Biologist,  34 and what your job was, what you did?  35 A   Yes, the area of the Skeena region is essentially the  36 north-west quarter of the province.  The boundary in  37 the east is a little bit obscure.  It's an  38 administrative boundary that doesn't conform to any  39 actual ecological or topographical boundaries, but it  40 includes all of the present study area, and to the  41 south about half of Tweedsmuir Park, includes all of  42 the Queen Charlotte Islands and all of the  43 north-western quarter of the province up to the Yukon  44 border.  45 Q   Okay.  Could I have -- could you show him Exhibit 358,  4 6 map 11.  47 A   You get locked in with this one. 9409  D.F. Hatler (for Plaintiffs)  In chief by Mr. Grant  1  Q  2  THE REGIS1  3  MR. GRANT  4  Q  5  A  6  Q  7  8  9  A  10  Q  11  12  13  A  14  Q  15  16  17  A  18  Q  19  A  20  Q  21  22  23  THE COURT  24  MR. GRANT  25  Q  26  27  A  28  29  30  31  32  Q  33  34  35  36  A  37  38  39  40  41  42  43  44  45  46  47  This is the handy desk size at last.  PRAR: That map has been marked.  :  As 358-11.  For the moment do you recognize this map?  Yes, I do.  And just if you look at maps 12, 13, 14, 15, 16, 17,  18 -- sorry, 18 and 19.  Do you recognize all of those  maps?  Yes, I do.  Were you involved in the gathering of the data and the  material which is set out on those maps regarding  range and distribution of those species?  Yes, I was.  Okay.  Now, I'll come back to that, but I just want to  ask you with reference to map -- well, all of those  maps.  Do they show the same area geographically?  On each map?  Yes.  Yes.  Okay.  Is that area that is shown on map 358-11, is  that all within the Skeena region, aside from -- I  know there is part of the Alaska panhandle in there.  :  Skeena region for the --  For Fish and Wildlife that you were responsible for as  a Regional Wildlife Biologist.  There is probably a very small area to the east which  would be in the adjacent region Omineca piece, and  there is a small area to the south which is in the  adjacent area to the south, the Caribou, but the vast  majority of it is within the Skeena region.  Now, in your curriculum vitae you say that you were  responsible for continuing inventory management and  research of all wildlife species and uses over the  northwestern quarter of the province.  That's correct.  That's within the Skeena region and  that's the -- essentially the terms of reference of  the Wildlife Biologist responsible for -- in a  practical sense everything with fur and feathers, but  increasingly there is emphasis on even the herptiles,  reptiles and amphibians.  So technically I would have  been responsible for those as well, although there  wasn't any formal studies or anything in that time.  So that aspect of population, biology and of, again,  of uses that -- the management related to uses in an  advisory capacity on habitat effects and habitat needs  for those species with the habitat biologist were part 9410  D.F. Hatler (for Plaintiffs)  In chief by Mr. Grant  1 of the responsibilities.  2 Q   Did you in your work for inventory management and  3 research, did you deal with each and every one of the  4 species that are set out on maps 11 through 19, and if  5 not, can you say which ones you did deal with?  6 A   The species that are real front and centre in the  7 management scheme are the ungulates, moose, caribou,  8 deer and goats were certainly part of the continuing  9 work, and both species of bears.  There has been some  10 emphasis on furbearers, so that beavers were certainly  11 important, and there was some research that went on in  12 the area while I was the Regional Biologist.  Snowshoe  13 hares and marmots are both sort of taken for granted  14 throughout the area.  There wasn't really any formal  15 studies or any inventory throughout that time period  16 as part of the job, although I have a personal  17 interest in both of those species, so I always paid  18 attention to them.  19 Q   How long have you lived in the Smithers area?  That's  2 0 where you live now?  21 A   That's right.  Since 1974.  22 Q   Okay.  Can you just explain for the court which of  23 these species that you are talking about are  24 ungulates?  Which are you referring to?  25 A   Okay.  I could probably give a little bit of a  26 demonstration on that.  The ungulate refers to the  27 feet of the creature.  We have animals that are  28 plantigrade.  Their feet are -- their toes and feet  29 are flat on the ground.  Plantigrade species would be  30 bears and human.  Then there are digitgrade species  31 that walk on their fingers, so-to-speak, and an  32 example would be the coyote and the wolves and such.  33 And then there is the next group of species which walk  34 on their toenails or their finger nails, and those are  35 the ungulates, the unguligrade species, so hoofed  36 animals is what we are talking about when we are  37 talking about ungulates, and those are the caribou,  38 deer, moose and mountain goat among the species within  39 the terms of reference here.  40 Q   Could you spell that for Madam Reporter, the  41 unguligrade.  42 A   U-n-g-u-1-i-g-r-a-d-e.  43 Q   Now, did you do any inventory and any studies of range  44 and distribution of these species while employed with  45 the Fish and Wildlife branch, or did you participate  46 in —  47 A   The — 9411  D.F. Hatler (for Plaintiffs)  In chief by Mr. Grant  1 Q   -- in any such studies?  2 A   The job requires a continuing effort to know what the  3 distribution is of the species.  Part of my job is to  4 establish regulations for each of the management  5 units, and so it's paramount to know if the species is  6 in the management unit, and then roughly what  7 abundance.  So that was a continuing part of the chore  8 for -- certainly for the ungulates, and theoretically  9 also for the bears, but the job is not quite as  10 simple.  11 Q   Why not?  12 A  Most of the assessments, the inventories for the  13 ungulates, with the exception of mountain goats, which  14 are white and which show up in the mountains in the  15 summertime very well, the other species are  16 inventoried primarily in the winter-time, when you  17 have the advantage of being able to see tracks.  But  18 the bears are asleep during the winter-time and very  19 inconspicuous during the summertime during their  20 active periods, so it's difficult to assess their  21 numbers.  22 Q   While you were the Regional Wildlife Biologist did you  23 ever give expert evidence in court?  24 A   Yes, I did.  25 Q   And what -- to what purpose?  What opinion evidence  26 were you asked to give?  27 A   In most cases it was identification of species or  28 species parts and/or the sex and age of the species.  29 Q   Sex and age?  30 A   Yes.  31 Q   Okay.  And since 1979 — in 1979, 1980 you were  32 involved as the resource management instructor at  33 Northwest College?  34 A   That's right.  35 Q   And you were involved in feasibility studies on the  36 resource management programme, and also you did the  37 summer training programme on wilderness guiding  38 skills?  39 A   That's right.  40 Q   Are you a guide yourself?  41 A   No, I'm not.  I have been involved with the guiding  42 industry primarily through that instructor's course.  43 It was something that -- some of the outfitters and --  44 had recognized the need for, and in my contacts with  45 them over the years in my job as a biologist I often  46 said, well, don't you think that some of these people  47 that did your hiring are not adequately trained, and 9412  D.F. Hatler (for Plaintiffs)  In chief by Mr. Grant  1 they all agreed that there were certainly some things  2 that could be improved in their overall programmes,  3 and -- so that was one of the opportunities that I saw  4 at the college there, for a technical programme in  5 that area had some -- had local merit.  6 Q   Since 1980 right up to date you were actually  7 proprietor of a consulting business under the name of  8 Wildeor?  9 A   Right.  10 Q   And you have been involved in several contracts and  11 studies, of which the one you prepared a report for  12 the Gitksan chiefs was just one of many?  13 A   That's right.  14 Q   Have you been involved in doing contract work for the  15 Government of British Columbia?  16 A   Yes, I have.  17 Q   Are you presently involved in some work?  18 A   I am just completing one now, yes.  19 Q   What is that study?  20 A   It's a -- it's called a management strategy for  21 wolverines.  I have been doing some of the furbearer  22 management guideline and management strategy reports  23 in recent -- in the last year or so.  It involves a  24 detailed review of existing information, and a  25 synthesis of that information in an attempt to extract  26 from that a plan for management of species.  27 Q   And is that -- is that the type of work you did for  28 the Gitksan chiefs on this study?  29 A  Very similar, in the sense that it's primarily a paper  30 proj ect, yes.  31 Q   And can you describe what you did to -- in terms of  32 the research for this data gathering that you -- for  33 the Gitksan?  34 A   Basically it was assembling to the extent possible in  35 the time available all of the existing information  36 that related to the history of these species in B.C.,  37 and in some cases that also meant looking at some of  38 the information from outside of B.C., because, of  39 course, political boundaries are not animal  40 boundaries, so -- and again synthesizing from the  41 existing information a picture of the history and  42 distribution of these species.  43 Q   Could you give the report to Mr. Hatler.  The coil  44 bound report.  And is this the report that you  45 prepared with reference to the data collection which  46 was then transferred onto these maps?  47 A   Yes. 9413  D.F. Hatler (for Plaintiffs)  In chief by Mr. Grant  1 Q   And I am just going to refer you to -- starting at  2 page 79 and going through to page 92 of this report.  3 I believe there are 170 citations there.  Did you  4 review all of those citations in the preparation of  5 this report?  6 A   I reviewed more than that.  Those were the ones that I  7 found useful to the extent that I could cite them  8 somewhere in the report, yes.  9 Q   Okay.  And you have seen the index to the -- to these  10 documents and reviewed the binders, the five volumes  11 of material in your document book, and there is 59  12 documents there, one of which is your C.V., so there  13 is 58 documents there.  Is that a sampling -- are all  14 of those documents out of that bibliography?  15 A   Yes, they are.  16 Q   It is a sampling out of the material that you relied  17 on?  18 A   That's right.  19 Q   Just to be clear, even if a document is not -- if the  20 a document is referred to in your bibliography, but  21 not in these volumes, that does not mean that it's not  22 important, it just means that you provided a sampling  23 of the documentation that you referred to?  24 A   I think most of the ones that are in that sampling are  25 ones that were referred to many times, although for  26 some species, although a reference might have been  27 referred to only once, that doesn't mean it was an  28 important reference.  29 Q   Okay.  Now, I would like to go back to your curriculum  30 vitae and refer you to -- apparently in May of '80 to  31 March of '81 you did a wolf-caribou study for the B.C.  32 Fish and Wildlife Branch.  What were you involved in  33 there, and did that research have any bearing or  34 assistance on the work you have done in this study?  35 A   That work was actually started when I was within the  36 branch, and it was prompted by observations and  37 suggestions amongst some biologists that the caribou  38 population were being severely surpressed by wolf  39 predation.  The study itself involved two different  40 study areas, one in the horse ranch range, which is  41 north-west of Cassiar -- north-east of Cassiar, sorry,  42 and within the adjacent Peace sub-region, and that  43 area was designated as the control area, not in the  44 scientific sense of control, but in the sense of  45 removing some wolves and monitoring the caribou  46 population response.  The area that I was monitoring  47 was the level mountain range north of Telegraph Creek, 9414  D.F. Hatler (for Plaintiffs)  In chief by Mr. Grant  1 and in that area no wolf control was done.  It was --  2 the biological control in the sense that we just  3 monitored the numbers there.  So that it was actually  4 the beginning of my experience, intensive experience  5 with caribou.  6 Q   And does that area that you studied, is it referred to  7 on that 358-11?  8 A   Yes, it's on that map.  9 Q   And did you -- were you -- were you involved on the  10 ground, then, in that study, if I may say it that way?  11 A   Yes, I spent the caribou calving season, which extends  12 from about the 1st of June to the 10th of June as an  13 average.  I usually spend a week to 10 days around  14 that time actually camped on the mountain top for two  15 or three years there, and also there were extensive  16 aerial surveys during that time period and also during  17 the winter for both the species mentioned, caribou and  18 wolves, but also moose, because they are the primary  19 predatory species for the wolves in the area.  20 Q   Maybe I should ask you to go back and including the  21 time you were a Regional Wildlife Biologist.  How  22 often would you have travelled the area of the Skeena  23 region in terms of wildlife observation, say, in a  24 given year in the years 1974 to '79?  25 A  Well, it's -- that's a difficult question to answer,  26 because it's fairly sporadic.  In general, given the  27 size of the area, there was never an adequate budget  28 to cover it, and so that I would take every  29 opportunity, but probably actual field time, inventory  30 time was less than 10 percent of the total.  31 Q   But you would travel to parts of the territory each  32 year?  33 A   That's right.  And over the time period of five years  34 I certainly covered most of the area that's depicted  35 on this map.  At least some areas many times and in  36 the time since I have been there I have been in  37 portions of the area far more.  38 Q   Okay.  And that -- that's -- I was going to ask,  39 outside of work have you travelled on the territory?  4 0 What have you done?  41 A   In —  42 Q   In terms of observation of wildlife and --  43 A   In recent years, in association with my research  44 position with Spatsizi Association for Biological  45 Research group, partially funded by the provincial  46 government, but by other sources as well, I have had a  47 radio tracking study of caribou going up in the 9415  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  D.F. Hatler (for Plaintiffs)  In chief by Mr. Grant  Spatsizi park area.  Primarily starting in 1980, and  the bulk of the work was completed in 1987, and over  that time period many aerial survey, radio track  surveys between Smithers and that area, so --  Q   You indicate -- that's number four actually on your  C.V. on page three, and that is the one that you have  referred to.  This is the example you are referring  to?  A   That's right.  Q   In number seven -- I'm sorry, number five in your C.V.  you refer to a developmental impact study on  furbearers and traplines.  Did this study involve any  research involving snowshoe hares and beavers?  A   Yes, it did.  It wasn't intensive work, but it was --  both of those species were featured.  MR. GRANT:  Sorry, My Lord, sometimes an interlude is helpful.  Thank you for your patience.  I understand from my  friend that Exhibit 358-11 through 19 can be now  marked as exhibits, and I believe Madam Registrar's  system is that they will be marked 358-11, et cetera,  as they are numbered.  THE REGISTRAR:  358, map 11, was marked for ID March the 17th.  That's the only one in that series that was marked.  MR. GRANT:  I think can be marked as an exhibit proper, and all  of the others can be marked as exhibits proper.  THE REGISTRAR:  Very good.  THE COURT:  So map 11 will be — or maps 11 to 19 will be what?  THE REGISTRAR: 358-11, 358-12 to 19.  (EXHIBIT 358-11 - MAP 11  (EXHIBIT 358-12 - MAP 12  (EXHIBIT 358-13 - MAP 13  (EXHIBIT 358-14 - MAP 14  DEER)  (EXHIBIT 358-15 - MAP 15  (EXHIBIT 358-16 - MAP 16  (EXHIBIT 358-17 - MAP 17  (EXHIBIT 358-18 - MAP 18  (EXHIIBT 358-19 - MAP 19  CARIBOU RANGE)  MOUNTAIN GOAT)  MOOSE RANGE)  MULE/BLACKTAIL  HOARY MARMOT)  BEAVER)  SNOWSHOE HARE)  BLACK BEAR)  GRIZZLY BEAR) 9416  D.F. Hatler (for Plaintiffs)  In chief by Mr. Grant  1  2 MR. WILLMS:  And, My Lord, I just want to — there is the  3 boundary again, the same comments that I made  4 yesterday on the boundary.  And the other thing is  5 there is a discussion on each one about records.  The  6 witness's reviewed records.  He has referred to a  7 record and said McKenzie noted this and McKenzie noted  8 that, and I don't want it to be taken, because there  9 is another witness coming along, that we agree that  10 records can always go in.  But this witness hasn't  11 expressed any opinions about the records, he's just  12 said McKenzie in his journal saw a black bear here  13 or --  14 THE COURT:  I have noted that.  15 MR. WILLMS:  And I have noted that on my —  16 THE COURT:  Yes.  Well, that's the proper function of an expert,  17 is it not?  18 MR. WILLMS:  I am just foreshadowing another witness.  19 THE COURT:  Yes.  20 MR. WILLMS:  I don't want to be seen to be giving away something  21 in advance.  22 THE COURT:  I understand.  23 MR. GRANT:  I don't want to necessarily take an adjournment, but  24 I am sort of wondering, and it was just now that I  25 realized, and I would like to chat with my friends,  26 because I think that now I don't have to go through  27 what I would have normally done in qualifications.  I  28 do think I have to focus on a couple of areas, but  29 maybe if Your Lordship would bear with me.  30 THE COURT:  Yes.  All right.  31 MR. GRANT:  I didn't really expect it.  32 THE COURT:  I will be in my Chambers and I can be called when  33 you are ready.  34  35 (PROCEEDINGS ADJOURNED FOR MID-MORNING RECESS)  36  37  38 I HEREBY CERTIFY THE FOREGOING TO  39 BE A TRUE AND ACCURATE TRANSCRIPT  40 OF THE PROCEEDINGS HEREIN TO THE  41 BEST OF MY SKILL AND ABILITY.  42  43  4 4 LORI OXLEY  45 OFFICIAL REPORTER  4 6 UNITED REPORTING SERVICE LTD.  4 7 (PROCEEDINGS RESUMED AT 11:25) 9417  D.F. Hatler (for Plaintiffs)  In chief by Mr. Grant  1  2 THE REGISTRAR: Order in court.  3 THE COURT:  Mr. Grant.  4 MR. GRANT:  Yes.  Thank you, my lord.  I'm going to foreshorten  5 my direct examination on the qualifications very much,  6 and in fact my direct examination probably in total.  7 Dr. Hatler, I'd like to refer you to Volume 1 of the  8 document book and tab 2 which is entitled  9 "Zoogeography".  It appears to be a text by  10 Darlington, an excerpt from that text, and Roman  11 numeral 8 which is in the preface I believe.  12 THE COURT:  Zoogeography, I suppose, is where animals live, is  13 it?  14 MR. GRANT:  15 Q   Well, maybe you can explain what zoogeography is.  I  16 think it's a little different than that, although can  17 you explain what zoogeography is?  18 A   Yes.  Basically it's the study of the distribution of  19 animals, but it also has in context not just where  20 they are, but where they came from and how they got  21 there; some of the explanatory details of that  22 distribution.  23 Q   So if you talked about, for example, your maps are  24 labelled "Range and distribution of caribou", would  25 zoogeography include range and distribution and  26 something else?  27 A   Range and distribution is the description of the way  28 things are or were in whatever the specified time  29 period is, whereas zoogeography again is just more of  30 an analysis of how that came to be.  So it's not --  31 it's not part of the mapping, but it's part of the  32 description of how that distribution came to be.  33 Q   Okay.  Well, just referring to the preface of -- I  34 take it Professor Darlington and his text on  35 zoogeography is an accepted text in the field of  36 biology on zoogeography; is that right?  37 A   It would probably be described as a classic in the  38 field.  It was the first major, major text, and was  39 the text that I used when I took a course in  40 zoogeography in university.  41 Q   And it's a standard reference for biologists I gather?  42 A   It would be referred to in most -- in most  43 commentaries on zoogeography I'm sure.  Yes.  44 Q   And just to be clear, is that you -- in your report  45 it's entitled "History and Zoogeography of Some  46 Selected Mammals", so your report is more -- it does  47 include zoogeography? 9418  D.F. Hatler (for Plaintiffs)  In chief by Mr. Grant  1 A   That's correct.  2 Q   Yes.  Now, on Roman numeral 8 he says "Zoogeography is  3 concerned with a multitude of facts..." -- it's "About  4 methods and words", my lord, on Roman numeral 8 of the  5 preface.  "Zoogeography is concerned with a multitude  6 of facts of its own and it draws also on ecology,  7 evolution, and geology." Do you agree with that?  8 A   Yes.  9 Q   Now, what did you draw on -- I'm sorry, I go to the  10 next paragraph first and it says that -- he then  11 describes how he has to set limits and -- in that  12 paragraph, and then he goes on.  13  14 "This has been true of my treatment of the  15 literature, too.  The literature that bears  16 on zoogeography includes not only primarily  17 zoogeographical items but also all that is  18 published on the classification, habits, and  19 history of all the animals concerned, and  20 much that is published as general geography,  21 climatology, ecology, and evolution.  I have  22 set no single standard and no deadline for  23 search of all this literature, but have  24 tried to give references sufficient to each  25 case, sometimes just one recent reference to  26 provide readers with an entry to other  27 literature."  28  29 Now, aside from that last sentence where he talks  30 about what he has done, do you agree with that  31 statement?  32 A   That's -- that's basically what I did.  33 Q   You did the same thing?  34 A   That's correct.  35 Q   Okay.  Can you tell me some of -- he refers here to,  36 for example, he said general geography, climatology,  37 ecology and evolution of much of it is published in  38 that.  Can you give me some of the examples of some of  39 the fields that you looked at in your study of the  40 zoogeography of the mammals in northern British  41 Columbia for this report?  42 A  Well, all of those that he mentions --  43 Q   Yes?  44 A   -- were certainly featured in my report, and also his  45 reference to the history of the species, whatever  46 historical information that I could get on the species  47 was included. 9419  D.F. Hatler (for Plaintiffs)  In chief by Mr. Grant  1 Q   Okay.  Now, for historical information on the species,  2 what kinds of sources did you go to?  And I --  3 A   There were published information on palaeontology, and  4 archaeology, and even some more or less anecdotal  5 historical information from journals of explorers and  6 that type of thing.  7 Q   You can go to the bibliography at page 82 -- I think  8 it's 79 of your report, which you have in front of  9 you, and can you just give an example of some of the  10 historical sources you used in palaeontology?  Just --  11 you can give just any one as an example.  12 A  Well, Kurten and Anderson would be a major source  13 and --  14 Q   Okay.  And in archaeology?  15 A   There were only three references for the general study  16 area, that seemed to pertain to the general study  17 area, on this first page here.  Allaire was one of  18 those examples.  19 Q   Okay.  And that's "the cultural sequence at Gitaus" in  20 '79?  21 A   Right.  22 Q   And also, and this is in the index too, Volume 3, but  23 it's in Volume 1.  Some of the material that you put  24 in this sampling includes Hester and Nelson "Studies  25 in Bella Bella prehistory"?  2 6 A   Right.  27 Q   And Roberts and Magne, M-a-g-n-e, "Athabascan and  28 earlier archaeology at Big Eagle Lake" in 1984?  29 A   Yeah, those were the three I believe that I --  30 Q   That you relied on?  31 A   That I had access to that were within that area of  32 interest.  33 Q   And as a biologist and a person who's done this kind  34 of work before, is that accepted within the biological  35 field to use archaological data?  36 A   There are some problems with the use of archaological  37 data and basically that bears on the question of  38 whether or not the item that is recovered in the dig  39 originated in that area or originated elsewhere.  So  40 that there's always that possibility that you're not  41 getting an accurate representation, and it would not  42 be good practise to base your entire case on  43 archaological records if you're talking about animal  44 distribution because actually it's human distribution  45 that you're talking about when you're talking about  46 archaeology.  However, as one of several sources and  47 again in this area there were so few sources 9420  D.F. Hatler (for Plaintiffs)  In chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR. GRANT  THE COURT  MR. GRANT  Q  A  A  Q  available, that it seemed worthwhile to me to explore  as many of the historical records as possible and,  although I haven't relied extensively on any of the  findings that were available from the archaological  sources, I've included them if they were consistent  with the other information.  :   Okay.  Can you refer to page 42 of your report?  You have the report do you?  :  Yes.  This is your report on mule deer, which is map 14, and  the second full paragraph there talking -- starts:  "Mule and/or coast deer have appeared  commonly at archaological sites in the study  area, indicating a long history both of  occurrence and use. In the lower Skeena  River area, deer remains were found only in  the most recent strata, dated at 1400-2400  years Before Present and were uncommon  (Allaire 1979), but at Bella Bella deer  constituted the predominant faunal remains  and were found in deposits dated 7800 years  Before Present or older.  (Hester and Nelson  1978).  Deer remains were also common, if  not predominant, in the various pre-20th  century sites examined in the Chilcotin area  (Roberts and Magne,1984)"  Now, is that the kind of -- is that an example of  how you used archaological data?  Yes, that's a good example because in the case of deer  we have the other information which indicates that the  deer have a longer history in the area, that they're  more common, have always been more common on the coast  than in the interior within this general study area,  and these findings are consistent with the other  information and they're therefore worth citing as more  of the back-up for that conclusion, although again if  that was the only information I had, I'm sure I  wouldn't have relied on it to any great extent.  Right.  And these three reports were published  reports?  They're in the public domain?  That's correct.  Yes.  Now, the third -- I think that you said in terms of  history, the third area that you referred to, you said  palaeontology -- oh, yes, the fur trade, and I'd like 9421  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  D.F. Hatler (for Plaintiffs)  In chief by Mr. Grant  A  MR. GRANT  THE  MR.  COURT  GRANT  Q  you to just refer to the bibliography, or if you don't  have to, that's fine, but just advise the court of an  example of early explorers that you relied on for  data?  Early explorers or -- there was the Hudson Bay Society  account of Samuel Black's journey into the north-west,  which is a major source, and other accounts of  Alexander Mackenzie's travels and Simon Fraser's  travels.  :   And I'd like to refer you to Exhibit 358 - 13.  This is the map of moose occurrence.  Now, there is  two types of numbers which are coded.  There's red  dating and, in an oval, and there's black.  To the  left of the map, my lord, if you see in the area of  the Stikine River just north of the black outline?  :  Yes.  A  THE  THE  Okay.  There's the date 1824 and can you indicate to  the court, just using that as an example, what is that  referring to?  Okay.  There are actually three of the 1824 references  shown there on this eastern section of the map.  Those  are all sightings as recorded in the journal of Samuel  Black and they're shown on this map because they are  all outside of the range that was believed to have  been -- what was believed to have been the range of  the moose up to at least 1860.  If you look at the --  on the north end of the map there's the cross-hatching  there which indicates what previously had been thought  to have been the limits of the moose range, that the  moose were north of there but not south of there, at  about 1860.  The -- so all of these records written in  red are data points which are outside of what had been  the previous assumption for the range at that time.  You mean it was thought there was no moose south of  Teslum Lake?  WITNESS:   That's right.  COURT:  In 1860?  WITNESS:   Yeah.  That was the previous interpretation from  the information that had been available to people  prior to that time.  COURT:  But what did Samuel Black discover in 1824?  WITNESS:   He saw tracks at Thuttade Lake and talked to the  natives there who told him that they occasionally saw  a moose, but not very often.  He saw a cow with two  calves on the Stikine River near the Pitman  confluence.  THE COURT  THE  THE  THE 9422  D.F. Hatler (for Plaintiffs)  In chief by Mr. Grant  1 THE COURT:  Yes?  2 THE WITNESS:   And I believe there were tracks again up in the  3 Turnagain.  4 THE COURT:  I see.  All right.  5 MR. GRANT:  6 Q   And well, maybe because you've raised it now, is that  7 that cross-hatching, is that reflective of Dr. -- I  8 think it was Dr. Hatter's thesis, not --  9 A   That's right.  10 Q   H-a-t-t-e-r.  Which was done in 1950?  11 A   1950 was when he published his thesis.  12 Q   And who is he or was he at that time?  13 A   He was the first biologist for the B.C. Fish and  14 Wildlife Branch and later the director of the branch  15 for many years.  16 Q   And you worked with him while you were working for the  17 department?  18 A   He was the director when I was the regional biologist.  19 That's right.  And it's worth pointing out that this  20 reference with the 1824 locations, that was published  21 in 1955, that Hudson Bay record, so it wasn't  22 available to Jim Hatter when he did his work  23 previously.  24 Q   So that at the time that he published his thesis or at  25 the time he did his thesis then, he didn't have the  26 Black's data which you subsequently have obtained?  27 A   That's right, and some of the other information as  28 well.  It's the nature of science that there's really  29 never a final word on anything and one always has to  30 be ready to change one's mind when new information  31 becomes available, and the change existing -- well,  32 boundaries and so forth on distribution maps, is a  33 common thing.  I should probably point out that  34 distribution of animals really is, when you have a map  35 of distribution, you have a map of an interaction  36 between the animals and people.  Unless you had  37 somebody there who was available to record the fact  38 and who recognized the fact it was worth recording,  39 you may in fact end up with a conclusion that there is  40 no occurrence in an area where there actually is.  41 And during my travels through northern B.C. I have  42 documented occurrences that weren't known before, for  43 a number of birds particularly, but there's a lot of  44 unexplored, from a biological point of view, a lot of  45 unexplored country in the rugged northern half of  46 British Columbia and discoveries to be made yet.  47 Q   If you -- I believe one of the historical persons that 9423  D.F. Hatler (for Plaintiffs)  In chief by Mr. Grant  1 you relied on was a fellow who -- I can't remember his  2 name offhand.  He was a fellow who was -- I don't know  3 if he was lost, but I think you indicated --  4 A   Gardiner?  5 Q   Gardiner.  6 A   Yes.  7 Q   And you've referred -- you've cited his work and he  8 was a person who travelled from the Nass through to  9 Hazelton I believe?  10 A   Yeah, this was just a chance occurrence of my getting  11 a copy of his journal which documented his travel from  12 I think Telegraph Creek to Hazelton all on foot and  13 the positive information that he provided; in other  14 words, he shot marmots and he shot a bear and he shot  15 a porcupine and he shot some beavers.  He was quite  16 interested in animals because he was hungry the whole  17 trip and so that --  18 Q   What year was that, the trip?  19 A   That was in 1875 I believe.  20 Q   Yes.  Okay.  21 A   But I have no way of knowing how much experience he  22 had and whether or not his hungriness was due to  23 incompetence or due to the fact that there really  24 wasn't much there, so that I can't really draw much in  25 the way of conclusions for the sparcity of wildlife in  26 the area to the extent that he seemed to suggest, but  27 I could document occurrences of say marmots and  28 beavers and porcupines in that area at that time from  29 those records.  30 MR. GRANT:   Okay.  Those are all my questions on  31 qualifications, my lord.  I understand that one area  32 that my friend -- I'm not certain what my friend's  33 position is.  I know the Federal Crown takes the  34 position that he is qualified to give opinion.  35 They're not going to cross-examine.  36 MR. WILLMS:  37 Q   I just have one question.  In any of your work prior  38 to this work have you used archaological data?  39 A   Can I look at my resume?  40 THE COURT:  When you say "archaeological data", do you mean  41 fossil remains?  42 MR. WILLMS:  43 Q   Yes, I mean --  44 A   Not necessarily fossil remains.  45 THE COURT:  Including fossil remains?  46 MR. WILLMS:  47 Q   Including fossil remains, such as you used here, the 9424  D.F. Hatler (for Plaintiffs)  Cross on quals by Mr. Willms  Ruling by the Court  1 dig at Gitaus, G-i-t-a-u-s?  2 A   I probably have not used it in the same way, although  3 I've been aware of it.  This was perhaps the first  4 project where the bit of extra information that it  5 could provide seemed useful.  6 Q   But you can't recall --  7 A   Yeah, none of my other studies have really delved into  8 the past as much as that one did.  9 Q   And I think you said about the archaological data you  10 only used it when it was confirmatory; is that --  11 A   Consistent --  12 Q   Consistent with --  13 A   -- with other information that I had.  That's right.  14 Q   And does that mean that the archaological evidence  15 that you've referred to really isn't -- I mean it  16 doesn't add anything to your report?  Your report  17 would be the same without it?  18 A   I would say that's probably true.  Yes.  19 MR. WILLMS: I don't have any further questions.  20 THE COURT:  I'm sorry, I didn't get exactly the starting of the  21 question.  22 MR. WILLMS: The start of my question was, would his report have  23 been the same without the archaological data.  24 THE COURT: Yes.  And he said probably not?  25 MR. WILLMS: He said "Yes".  2 6 THE COURT:  It would —  27 THE WITNESS:   Yes.  2 8 THE COURT:  It would not be the same?  29 THE WITNESS:   It would.  30 THE COURT:  It would be the same?  31 THE WITNESS:   It would be the same.  The archaological  32 information hasn't altered any of my conclusions.  All  33 it has done is supported them.  34 THE COURT:  Thank you.  35 MR. WILLMS: The prime — no, I'll just leave that now.  That's  36 all.  37 THE COURT:  Koenigsberg?  38 MS. KOENIGSBERG: I have no questions. I've accepted his  39 qualifications.  4 0 THE COURT:  All right.  All right.  Mr. Willms, do you want to  41 make your submission on qualifications?  42 MR. WILLMS: Well, in light of the fact that the archaological  43 data is really here nor there, I don't have any  44 submission.  I accept that he is -- can give opinion  45 evidence on the range and distribution of these  46 mammals and their zoogeography.  47 THE COURT:  Yes.  All right.  All right.  Well, then I suppose I 9425  D.F. Hatler (for Plaintiffs)  In chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  have to make a formal ruling.  He's qualified to give  opinion evidence in the areas for which he's been  qualified.  MR.  MR.  MR.  THE  THE  THE  THE  THE  THE  THE  MR.  GRANT  Q  Thank you, my lord.  And I believe that zoogeography  includes the history of selected mammals as well?  A   Pardon me?  GRANT:   You've described the title as "History and  Zoogeography".  I just wanted you to be qualified in  the area of the history of those selected mammals, but  I think that's included in zoogeography.  WILLMS:  Well, as I understand it, he's read records and, as  he said in his evidence, if he notes that somebody  noted a marmot there, then there was a marmot there.  COURT:  Yes.  Is a hoary marmot the same as what we used to  call a whistling marmot?  WITNESS:   Yes.  COURT:  Same thing.  They whistle in the north as well as  they do in the Rockies?  WITNESS:   Yes, they're mostly alpine species.  COURT:  You find them at higher elevations, do you?  WITNESS:   Primarily, yes.  There are some lowland  occurrences that I know about, but --  All right.  Thank you.  COURT  GRANT  Q  A  Q  A  A  I'm going to refer you to your report, that is, to the  written report as opposed to the maps, firstly, and  deal with a few points, and I'm going to of course  not -- I'm not going through the report, my lord.  I'm  going to propose to tender it, but there's some  questions my friend has raised and I want to deal with  them so that -- can you refer to page 1 of your  report, the introduction?  And part 1.2, it says: "The  specific area of interest, as defined in the project  terms of reference, comprises much of northwestern  B.C. (see Figure 1)", which is right after it.  Now,  is -- just to be clear, the study area, is it the same  as is on 358 - 13, the map that's in front of you?  I believe that there's less to the east than --  It goes a little further east?  Yeah, I would say that this -- that my original  mapping and that block on page 2 are -- it does extend  farther east than these maps show.  Now, you say then that it is a very diverse area  topographically, and you rely on Holland, and also you  know the area yourself?  That's correct. 9426  D.F. Hatler (for Plaintiffs)  In chief by Mr. Grant  1 Q   And then you say "and vegetatively".  2 A   Uh-huh.  3 Q   And then you refer to Haeussler, and that's Sybolle  4 Haeussler who's an expert being tendered by the  5 plaintiffs in this action that you've referred to  6 there.  How do you know that it is a diverse -- do you  7 know, independently of Sybolle Haeussler's report,  8 about the diversification of the area vegetatively?  9 A   Yes, I certainly do.  10 Q   Can you explain how you know that?  11 A  Well, from a variety of sources, including personal  12 experience over much of the area, and I am -- as a  13 biologist, I have to know the components of the  14 habitats and really usually when you're defining a  15 habitat, you're defining it by its vegetation  16 characteristics and successional stage of the  17 vegetation and the dominant features of the  18 vegetation, and so on, so I know the vegetation very  19 well.  This reference to Haeussler was a reference of  20 convenience.  The base map which she used was the base  21 map of the biogeoclimatic zones of British Columbia  22 produced by the research branch of the forest service,  23 B.C. Ministry of Forests.  24 Q   And you've seen those yourself?  25 A  And -- that's right, but at a different scale.  It was  26 more to the scale that was within the terms of  27 reference of this, so that -- although I have a copy  28 of the provincial biogeoclimatic zone maps that I  29 often had to refer to to find locations because of the  30 difference in scale.  I used that regularly in my work  31 so --  32 Q   So you know that as a fact --  33 A   That's right.  34 Q   -- yourself?  Okay.  I'd like to refer you to page 39  35 of your report and the very last line and it goes over  36 to page 40.  And it states there:  "Native Indians are  37 known to have managed vegetation with the use of fire  38 prior to European contact.", and you say "See  39 (Hauessler 1985)".  Is that an assumption -- is that a  40 fact that you were told that you've assumed or is that  41 a fact that you know independently?  42 A   No, I don't have firsthand knowledge of that.  That  43 was -- I was relying on what I've been told for  44 that -- for that particular conclusion.  45 Q   Okay.  And then the sentence goes on.  "...and in view  46 of the considerable budget and bureaucracy which is  47 presently required in the province for fire 9427  D.F. Hatler (for Plaintiffs)  In chief by Mr. Grant  1 suppression, it is difficult to believe that forests  2 would not have burned previously if they were amenable  3 to burning."  4 Now, do you have independent knowledge of the  5 budget and bureaucracy presently required in the  6 province for fire suppression, indeed, were you  7 involved in fire suppression in the Skeena region  8 while you were -- as a wildlife biologist?  9 A   The whole issue of fire is one that's has been a  10 continuing source of discontent between Ministry of  11 Forests and Ministry of Environment.  Biologists,  12 knowing full well that fires produce new and vital  13 habitats for wildlife; foresters, knowing that it may  14 cut into the revenue base provided by timber.  So  15 there is this conflict that's -- that's a part of the  16 system.  17 And I've long been aware of the value of fire in  18 producing habitat for a number of different kinds of  19 species, and I also have long been aware of the  20 amazing amount of effort and money that will be poured  21 into putting out fires in areas where there isn't any  22 commercial timber, very little accessible timber, far  23 more money to put out the fires than has ever been  24 spent on wildlife management in the province, so it's  25 been a source of some disturbance to me, you know,  26 that —  27 Q   Professionally and while you were at the regional  28 wildlife branch?  29 A   That's correct.  There have been talks in -- probably  30 within the last decade and I think it started when I  31 was within the branch between Ministry of Forests and  32 Ministry of Environment about using fire selectively  33 in some area called controlled burns to provide  34 wildlife habitat and some of those have gotten away,  35 and in other places there has been talk of letting  36 fires burn if they start and I was called in a few  37 places to confirm that some areas might be such places  38 where we might as well let it burn.  So I have been  39 involved in this continuing discussion about the role  40 of fire in wildlife management.  41 Q   And so you're aware about the efforts for fire  42 suppression within the Skeena region?  43 A   Uh-huh.  44 Q   As you state there, and the explanation you've given  45 that the conflict between fire suppression and  46 wildlife management, and the last comment that is in  47 that paragraph, is that your conclusion, based on the 942?  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  D.F. Hatler (for Plaintiffs)  In chief by Mr. Grant  Submission by Mr. Willms  facts that you know?  A   Yes, that's all mine.  That has nothing to do with --  that's why the reference is in the middle of the  sentence and not at the end.  Q   So the only assumption you're making is the first part  before the reference to Hauessler?  That's right.  Can you turn to page 55, please?  Fifty-five?  A  MR. GRANT  THE COURT  MR. GRANT  Q  Fifty-five.  Yes, my lord.  And again I'm going to the  very top sentence.  And you state there:  "Beavers were known to have been part of the  local economies of the Gitksan and  Wet'suwet'en in the middle Skeena-Babine  area at least as early as the 1820 "s."  And you refer to -- that's Dr. Skip Ray or Dr.  Arthur Ray's report of 1985, he did the report you're  referring to.  He did research into the Hudson's Bay  archives, that's what you're referring to.  Independent of Dr. Ray's report, are you aware of the  economic utilization of beavers by the Gitksan?  MR. WILLMS: I object, my lord.  This is something that is  bordering on the anthropological.  I don't know what  this has got to do with wildlife management.  The  history and distribution or whether or not the beavers  were there, this witness has reviewed journals and can  say that the beavers were there, but whether or not  there is an economy at the time is something that is  far beyond anything my friend has tendered this  witness for.  He hasn't tendered him to say that  there's an economy in the moose right now or in the  caribou right now or in any of these animals, just  their range, their distribution, and their  zoogeography, and I object to that.  THE COURT: The specific question was, was there an economy in  part in beavers in when?  MR. GRANT:  In the earlier periods is he aware of the economy.  THE COURT:  Before 18 —  MR. GRANT:  In the 1820's or later.  Well, let me ask you this:  THE COURT:  Well, the doctor said that zoogeography is concerned  with the -- with how animals got to where they are and  where they came from and where they are.  If there's a  time dating of beavers in this area, then I see no  reason why it wouldn't fall within the discipline of 9429  D.F. Hatler (for Plaintiffs)  In chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR.  GRANT:  Q  A  Q  A  MR. GRANT  zoogeography, but I don't think the doctor's done any  study in that and whether he is -- just isn't  reporting what other people have said.  I think you'd  have to develop it more specifically before I could  rule on the objection, Mr. Grant.  Yes, I'm sorry, my lord, I anticipated that, and I  started to ask a question because I think that maybe  my question was poorly framed.  Dr. Hatler, in the studies that you have done, I  think your curriculum vitae refers to upwards of 40  studies since 1980, have you done studies on the  economy of specific species, that is, the economics,  the economic utility of species or have you looked at  that?  Basically that's an underlying and growing aspect of  wildlife management in the sense that in order to  protect wildlife, to manage wildlife, you have to  compete with other resource uses, as I've just  described in the case of the fire and its relationship  to wildlife, and competition always has to be in the  form of an economic argument, so the economics is very  much a part of wildlife management.  Quite aside from  that, my major interest among wildlife has always been  the furbearers, which are probably the most obviously  commerce-related wildlife that we have.  So -- and  I've long been interested in that historical period  when -- and in the fact that the development of  northern B.C., that the pioneering of northern B.C. by  the Europeans, was not in search of real estate or  timber resources or mines, they were looking for  beavers.  That was the economics and that was the --  that was the direction that they were focusing on.  So this particular statement really, again, it was  a reference of convenience I guess.  That was a  specific instance, but I'm well aware of the Hudson  Bay records which span about two centuries of these  records of the harvest of these animals.  The  reference by Anderson --  He's an early fur trader?  He was one of the Hudson Bay factors referred to the  use of beaver in several of the posts that he was  involved in, including New Caledonia and some of these  areas, so that it's not a -- yeah, I guess I don't  need to say anything more than that.  :   Did Anderson refer to whether the beavers were part  of any of the Indian economies? 9430  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  Submission by Mr. Willms  Submission by Mr. Grant  Ruling by the Court  MR. WILLMS:  I object, my lord.  MR. GRANT:  Well, my lord, I say that the question is — I'm  only asking -- he's referred to Anderson.  He's  referring to him.  My friend is saying well, he can  stop when he says if Anderson said, for example, there  were beavers brought in, but if he says there were  beavers brought in by Gitksan, he can't refer to that.  And I think that my friend is splitting hairs, I would  submit.  I'm only asking if Anderson made reference to  whether they were utilized by the Gitksan or anyone  else.  THE COURT:  Your objection is that that witness would have to  indulge in speculation or surmise who traded these  beaver pelts.  MR. WILLMS: Especially since, my lord, and perhaps -- I don't  know if the witness knows this, but there's no  reference to Gitksan or Wet'suwet'en in these early  journals.  The references are to I think Carrier.  The  references are to other names, but not Gitksan and  Wet'suwet'en to start with, but secondly, I thought my  friend is framing this as sort of a small -- an Indian  economy rather than a fur trade economy with the  Europeans.  If all that this witness is saying here is  that there was a fur trade economy with the Europeans  and he knows about it, that's fine, but to go into the  specifics as he's gone here, I think we should wait  for Dr. Ray and Dr. Ray's report to see what Dr. Ray  says in his report or in his evidence.  Well, Mr. Grant, perhaps you can explore it with the  witness, but if he can't do any more than say that  this is literature which supports -- well, literature  and historical data which supports the existence of a  fur trade, then your friend's objection is well taken.  If his investigation study takes him beyond that, then  I don't see why you shouldn't be allowed to adduce the  evidence.  But I'm not sure whether he can go beyond  that or not.  I'm not sure if he knows who did the  trading.  Well, of course, and that's the point -- I was  starting to lead into that.  You go ahead and explore it and see what he can tell  us .  THE COURT  MR. GRANT  THE COURT  MR.  GRANT:  Q  Dr. Hatler, what -- in your historical review for this  study and your historical review that you've done for  other work, and specifically with respect to beaver,  you have done specific studies respecting beaver 9431  D.F. Hatler (for Plaintiffs)  In chief by Mr. Grant  1 management; is that right?  2 A   Yes.  3 Q   And can you explain what that study is that you did  4 regarding beaver management?  5 A   It was one of the furbearer management guide-line  6 series that I mentioned earlier and I prepared a  7 management guide-line based on a review of existing  8 literature, which was 300 plus references, 360  9 references or something, for the province last year.  10 Q   Yes.  And that included references to historical  11 literature?  12 A   That's right.  13 Q   And did it include an analysis of the economics, the  14 historical use of beaver in northern British Columbia?  15 A   It was not specific to northern B.C..  It was --  16 Q   It was province-wide?  17 A   There was some indication of the economic aspects and  18 attributes of the species for the province as a whole,  19 but it wasn't pinpointed to any areas.  20 Q   Have you seen in your literature review, both for this  21 study and for that study and other work that you've  22 done, evidence of the economic use of beaver for the  23 fur trade?  24 A   Yes.  25 Q   And the statement that you just made earlier that that  26 was a principal reason for people coming into northern  27 British Columbia is based on your review of the  28 historical material?  29 A   That's right.  30 Q   Have you, in the course of your review, seen  31 references to Gitksan and Wet'suwet'en's use of  32 beaver?  33 A   Only the one that's referred to here and, you know, I  34 have to submit on that that I -- that's -- that's an  35 assumption based on that reference and the fact that  36 beavers were being sold by native people to all of  37 those posts in that area.  You know, I didn't find it  38 strained my credibility, but I certainly don't have  39 any direct reference other than this one to those  40 specific --  41 Q   To Dr. Ray's reference --  42 A   That's right.  43 Q   -- as to the names of the Gitksan and Wet'suwet'en?  44 A   That's right.  45 Q   But you do have other evidence that beaver were sold  46 by native people to the fur-trading posts in the area?  47 A   Yes. 9432  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  D.F. Hatler (for Plaintiffs)  In chief by Mr. Grant  MR.  Q   Okay.  Okay  A   Fifty-eight?  GRANT:   Yes, at the bottom  THE  MR.  MS.  THE  THE  MR.  THE  MR.  I'd like to refer you to page 5?  And that reference there:  "Farther south in the study area, as noted  earlier, beavers were known to be important  in the local economy of Skeena-Babine  Indians as early as the 1820"s."  And that -- that again is based on Dr. Ray's -- ar  assumption you based on Dr. Ray's report as you've  described.  At this point, my lord, with the explanations  given by Dr. Hatler, I propose to tender as the next  exhibit his report "History and Zoogeography of Some  Selected Mammals in Northern British Columbia".  COURT:  Any objection?  WILLMS:  No objection, my lord.  KOENIGSBERG: No objection, my lord.  COURT: Yes.  All right.  Next exhibit.  REGISTRAR: Exhibit 795.  My lord.  GRANT:  Sorry, that's exhibit 795?  REGISTRAR: 795.  (EXHIBIT 795: Report of Dr. Hatler entitled "History  and Zoogeography of Some Selected Mammals in Northern  British Columbia"  GRANT:  Q  A  Q  A  Q  A  Q  A  Q  Dr. Hatler, do you adopt the opinion -- the opinions  and facts in this report as your own?  Yes.  And you've utilized those assumptions that you have  just briefly referred to this morning --  Yes.  -- as part of the foundation for those facts and  opinions?  And would it be correct to say that when  you, just looking at the table of contents, that in  analyzing the map, the maps I should say, the maps  should be looked at in conjunction with this report?  Yes.  On the top of the maps is what appears to be a  summary.  Is that a -- you've reviewed those summaries  on each of the maps?  Yes, I have.  And are those summaries summaries of parts of your  report? 9433  D.F. Hatler (for Plaintiffs)  In chief by Mr. Grant  1  A  2  Q  3  4  A  5  6  7  8  Q  9  10  11  12  13  14  15  16  17  A  18  Q  19  20  21  22  A  23  Q  24  25  A  26  MR.  GRANT  27  28  29  THE  COURT  30  MR.  GRANT  31  THE  COURT  32  MR.  GRANT  33  Q  34  A  35  36  37  38  39  40  41  42  43  44  45  46  47  Yes.  But you would rely on the report in its totality as  opposed to the summary as being more --  Yes.  I find that, given the constraints of space,  certainly for some of the species that summary that  shows on the top is quite scanty and I wouldn't want  to see it standing alone.  Okay.  Okay.  Now, the next thing I would like to do  is to have you look at -- I'd just like you to review  with -- briefly with me these maps.  We'll start with  map 11.  Now, can you -- and I'm going to deal with it in  conjunction with your report madam registrar's  returning to you, and on page -- this map sets out the  range and distribution of caribou from 1860 to the  present; is that right?  That's right.  Based on your research.  And your report refers to  references of the presence of caribou from as far back  as 20 to 30,000 years ago during the -- what's called  the Wisconsin glaciation?  Uh-huh.  And you actually covered in your report that  zoogeography from that period on up; is that right?  Yes.  Now, can you just explain for his lordship just --  there's a reference in that map, a starred location,  Mount Deecius, and it's just --  I have it.  -- east of Babine Lake.  Yes, I have it.  Can you explain what that reference is on the map?  Okay.  This was an area that was described by one of  the B.C. land surveyors.  It was an area where -- it  seemed to be an area of where there were many shed  caribou antlers, suggesting that it was probably an  early winter range, based on my observations  elsewhere.  I now know -- or I know very well that  it's an area that's not used by caribou at that time  of year now and hasn't been for quite a number of  years.  That observer had also gotten some personal  communication information from some of the natives in  the area confirming that there had been caribou there  in the past, but not, you know, not in the 1920's or  thereafter.  So that's one of the bits of information  that helps confirm the former presence of caribou in 9434  D.F. Hatler (for Plaintiffs)  In chief by Mr. Grant  1 an area where there now are not.  2 Q   And you refer to that reference in your report; is  3 that right?  4 A   That's one of them.  Yes.  5 MR. GRANT:   Then there's another reference near Usk to  6 archaological remains 3500 years BP.  That's "Before  7 the Present" I gather.  Can you explain that reference  8 being put on the map?  9 THE COURT:  Where is this one again?  10 MR. GRANT:  I'm sorry, if you look just down and below the black  11 line along the Skeena River you see Usk and there's --  12 just north of Terrace which is in the green --  13 THE COURT:  Oh, yes.  I see it.  14 MR. GRANT:  15 Q   And it's another black label.  16 Can you explain what that reference is referring  17 to?  18 A   It's just a record of the finding of caribou remains  19 in one of -- in that particular dig.  It is within  20 that range of absence but former occurrence, but no  21 major significance I wouldn't say.  22 THE COURT:  How long was the last Ice Age in duration?  23 THE WITNESS:   In duration?  2 4 THE COURT:  Yes.  25 THE WITNESS:   I'm not sure how long it was in duration.  I've  26 been focusing more on when it quit.  27 THE COURT:  Well, we were told the other day that it's 10 to  28 11,000 years ago when the ice receded.  29 THE WITNESS:   That's right.  Yes.  30 THE COURT:  This says 1300 — 13,500 years ago.  31 MR. GRANT:  I'm sorry, my lord —  32 THE COURT:  Isn't that what it says at Usk?  33 MR. GRANT:  34 Q   Thirty-five hundred years ago.  35 A   Thirty-five hundred years ago.  36 THE COURT:  Oh, is it?  37 MR. GRANT:  There's brackets there, my lord.  The bracket could  38 be --  39 THE COURT:  Well, that makes a difference.  40 THE WITNESS:   Yes.  41 MR. GRANT:  Can you refer to page 11 of your report, and that --  42 is the black column the glacial periods or the white?  43 THE COURT:  What page, please?  44 MR. GRANT:  Page 11 of his report.  This will assist in the  45 answer to the question you just raised.  46 THE COURT:  No, I don't need to know it now.  4 7 MR. GRANT: 9435  D.F. Hatler (for Plaintiffs)  In chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  Q   Okay.  A   The black is the glacier and the white is the  interglacial.  Q   Okay.  Now, the principal time period that you're  talking about in terms of these species that you're  dealing with, can you explain where that fits onto the  chart?  A   Yeah, it's below the chart.  Q   It's underneath the chart.  So it would be post --  A   This chart just shows some of these Pleistocene and  pre-Pleistocene time periods that are part of the very  ancient palaeontological history of the species, but  arbitrarily since I assumed that nobody would disagree  that there weren't any animals in those areas that  were a mile under ice, that the end of the last ice  period was a good starting point for discussing the  zoogeography of the species in this area.  THE COURT: So ice is black —  MR. GRANT:  Uh-huh.  THE COURT:  — in this chart?  THE WITNESS:   Yes.  THE COURT:  Well, this suggests that — well, what is zero?  THE WITNESS:   Zero is the end of the Pleistocene, the receding  of the ice, which was in the neighbourhood of 9 to  13,000 years ago in this part of B.C. or depending  on --  You can see it's in age in millions of years before  the present on that left hand column, so we're less  than a million years before the present.  Well, that would indicate that the last Ice Age was  about --  A couple hundred thousand years.  Yes, 250,000 years.  That's what it looks like on that scale.  Yes.  All right.  MR. GRANT  THE COURT  THE  THE  THE  THE  MR.  WITNESS  COURT:  WITNESS  COURT:  GRANT:  Q  And you've taken that from Kurten and Anderson who are  accepted in the field?  A   Yes.  Q   And just to explain that, there's a reference under  "Land Mammal Ages" to "Blancan, Irvingtonian", and  "Rancholabrean".  Is that -- are those ages -- those  refer to when different species of land mammals were  present?  I mean, those are eras or epochs for  biologists?  A   Based on the fossil evidence, these periods are kind  of categorized as periods when major groups appeared. 9436  D.F. Hatler (for Plaintiffs)  In chief by Mr. Grant  1  Q  2  A  3  4  5  Q  6  A  7  8  THE COURT  9  10  11  THE WITNE  12  13  THE COURT  14  MR. GRANT  15  Q  16  17  A  18  Q  19  A  20  21  Q  22  A  23  Q  24  A  25  Q  26  27  A  28  Q  29  30  31  32  33  A  34  35  36  37  38  39  Q  40  A  41  Q  42  A  43  44  45  46  47  Okay.  And I've referred to them occasionally in the text, so  it seemed like it was worthwhile to have this scale  here, but it's not --  Right.  Again, because most of the focus is after this period,  it's not a major focus here.  :  Why are these dividing lines not horizontal, to  indicate there's a doubt about when the age -- the era  started?  3S:   I suspect that's the case.  It's difficult to  date them precisely.  :  Yes.  All right.  And are the species we're dealing with, would they  have arisen in the Rancholabrean period?  No, not all of them.  Some of them would?  The deer, for instance, were there in the  Irvingtonian.  Okay.  So it's -- and so were the hares, as I recall.  And you refer to that in your report itself?  Yes.  In the early part of your report in each species you  talk about their history?  Yes, that's right.  Okay.  Going back to the map, just below the Iskut  River and above the Bell-Irving you see there's a  reference to fossil antlers 3,700 years before  present, and you have noted those.  Is that again  archaological data?  That's based on an antler that was discovered during,  I guess, glaciology research or something in that  area.  I know that some members of the Fish and  Wildlife branch were quite excited about it, but  personally, as you see, I didn't alter the boundaries  to include that.  Knowing caribou as I do --  Oh, the boundaries of the range you're talking about?  Pardon me?  The boundaries of the range?  That's right.  The boundaries of the range.  It didn't  alter my interpretation of the range, and the reason  for that is because particularly young male caribou  can -- I wouldn't be surprised to see one anywhere  where it would be possible for them to be.  They  wander great distances so that I haven't seen that 9437  D.F. Hatler (for Plaintiffs)  In chief by Mr. Grant  1 antler and I don't know what the sex of the animal was  2 or the age, but caribou are great wanderers and can be  3 anywhere and one observation doesn't help that much.  4 In many of the --  5 Q   Could I just interrupt you there?  6 A   Yes.  7 Q   When you say they're great wanderers, caribou  8 generally travel in herds I gather, but can  9 individuals --  10 A   Seasonally.  11 Q   Seasonally.  12 A   But there are times of year when they're quite  13 solitary as well.  14 Q   I see.  And individuals can wander off from an area  15 that's —  16 A  An individual or a small group.  That's right.  17 Q   Okay.  18 A  A shed antler, again depending on the age of the  19 animal, the antlers are shed usually as early as  20 November for an old mature male to as late as January  21 or February for a younger male, and caribou females  22 have antlers and mostly their antlers are shed just  23 prior to or during the calving period, so that's into  2 4 May and June.  25 Q   Okay.  Of these three specific references on this map,  26 which is the most significant to you to show presence?  27 A   Of which?  28 Q   Of these three references we've just referred to,  29 these stars and locations of antler finds?  30 A  Well, I guess probably of those three, the indication  31 of large numbers of antlers at Mount Deecius would be  32 the one that would be the most useful as an indicator  33 of regular use.  34 Q   Okay.  Can you just explain how the colour coding  35 works for his lordship on this map and what it  36 signifies?  37 A   Okay.  For all of the ungulates and also for the bears  38 I guess, the primary boundaries for the maps that --  39 for existing distribution, and in this -- in the case  40 of the caribou that would include the common to  41 abundant category and the present category, those were  42 drawn from some preliminary management plans produced  43 by the Province, Ministry of Environment.  The --  44 Q   Excuse me, were you involved in the preparation of  45 those maps?  46 A   Yes, I was.  The way they were put together was with  47 one fellow that worked for the -- well, at that time 943?  D.F. Hatler (for Plaintiffs)  In chief by Mr. Grant  1 they called him the resource analysis branch, but they  2 change their name about every third week so I'm not  3 sure what they're called any more, but they're in the  4 mapping and assessment section of the Ministry of  5 Environment, and the fellow's name is Dan Blower and  6 it was his job to produce the distribution and  7 abundance maps for the major species that they were  8 preparing the management plans for and he did that by  9 consulting the regional wildlife biologist.  So most  10 of the -- most of the information for this area would  11 have either have come from me or would have been  12 reviewed by me prior to being finalized.  13 Q   Okay.  14 A   Having said that, I may have altered some of the  15 boundaries slightly in this mapping based on more  16 recent information that I had or on habitat  17 characteristics, so it's -- it may not be precise and  18 especially because there are differences in scale, the  19 maps that I'm talking about from the provincial  2 0 management plans are quite small and include the whole  21 province.  So it's --  22 Q   Well, the darkest brown, this is where the caribou are  23 most abundant today?  24 A   Presently, yes.  25 Q   And then the middle shade of brown is where they are  26 present but not necessarily abundant?  27 A   That's right.  2 8 Q   Today.  And then —  29 A   For caribou it's -- again it's difficult because of  30 the movement patterns of the -- of the species and all  31 the different herds are not fully known, and  32 particularly in all seasons.  So there may be areas on  33 here where caribou regularly occur in a season when  34 they're not easily seen and when they're most commonly  35 in small numbers and that would be in summer, early  36 summer.  They may be --  37 Q   You mean it's outside the coloured region?  38 A   That's right.  39 Q   For example, north of Kisgegas it appears that there's  40 no -- you've got it completely clear of caribou.  41 That's that -- if you use the black outline as an  42 example, it's sort of a jutting green or a -- with no  43 colouration?  44 A   Yeah, that was an area that I would expect some  45 caribou occurrence, but don't have any information to  46 suggest it there.  Probably it's not correct to not  47 include it in the former occurrence, but again, I 9439  D.F. Hatler (for Plaintiffs)  In chief by Mr. Grant  1 didn't have any information to the contrary so that I  2 didn't.  It is an area of -- it's very wet and it  3 certainly isn't a wintering area.  If anything, there  4 would probably be some use by females for calving  5 during the summertime, the early summer, but they  6 would then move out of that area for sure later in the  7 year.  It's deep snow and very severe rugged country.  8 Q   In the course of your research for this project you  9 didn't interview Gitksan or Wet'suwet'en elders or  10 persons about their observations of presence did you?  11 A   No, I didn't.  12 Q   And did you -- were you given information as to where  13 Gitksan or Wet'suwet'en elders said that large numbers  14 or any numbers of these species were available prior  15 to doing your research?  16 A   No.  17 Q   Or were you given some suggestions as to the areas  18 where there was some evidence that you should focus on  19 that there wasn't presence, you should spend time with  20 that?  21 A   No.  22 Q   So you did this entirely independent of the evidence  23 given in this case or evidence from Gitksan and  24 Wet'suwet'en elders?  25 A   Yes.  I -- you know, I felt that it was important to  26 use the existing mapping as the base.  27 Q   Yes.  28 A  And then to look for any information that would --  29 that would be of a credible nature that could alter  30 those patterns, and for the ungulates, you know, other  31 than some of the -- adding some more historical  32 information for the moose, for instance, there wasn't  33 really much that was new.  34 Q   Now, in terms of the -- let me just give you a  35 hypothesis, and I'm not -- if a Gitksan chief, for  36 example, who went out to an area and trapped and  37 hunted in a specific area every year for the last 25  38 years, and I'm saying this hypothetically with respect  39 to caribou, and he saw caribou north of Kisgegas in  40 the area that you've marked as green, would you  41 dispute that that -- that evidence of caribou  42 presence?  43 A  Would I dispute it?  44 Q   Yes.  45 A   If it was regular and it could be confirmed, there  46 would be no problem of altering boundaries.  47 Q   Right. 9440  D.F. Hatler (for Plaintiffs)  In chief by Mr. Grant  1 A   Yes.  2 Q   And then there's this band that is -- you've described  3 the lighter brown that is a presence 1860 and later,  4 but not significantly since about 1920, which includes  5 the Mount Deecius site and one of the archaological  6 remains, and it seems to go through the Babine Lake,  7 the Bulkley Valley, and the -- and the middle, if I  8 could say the middle Skeena area, that would be as far  9 west as Terrace.  Can you explain why the caribou --  10 why do you believe the caribou are no longer present  11 in that area from your research?  12 A   In this area I was involved in a previous review study  13 of caribou occurrence in southern and central B.C. and  14 this mapping is based on our findings in that study.  15 It's published by the Ministry of Forests and the  16 Ministry of Environment I guess.  17 Q   Is it one of the -- it's one of the citations in your  18 report?  19 A   One of the citations in the report and also it's in  20 the -- in my CV.  But there were quite a number of  21 historic records for this area, and in addition to  22 that I personally -- or by information from people  23 that I know what they're talking about, can document  24 the occurrence of shed antlers on most of the  25 mountains throughout that area.  I've hunted on most  26 of them myself or hiked in the summertime and it's not  27 uncommon to find antlers throughout this area.  28 Q   Caribou antlers?  29 A   Right. And the fact that there are caribou adjacent --  30 right now there's this little Telkwa group and the  31 Tweedsmuir group that are centres of activity.  32 There's still probably occasional movement out into  33 that area, but it's clear from the kinds of records  34 we've gotten over the past 30 to 40 years that the  35 area that now is regularly used is this area that's  36 marked with a darker shading.  37 Q   Well, can you explain from what you know in your  38 studies of caribou why they would have left or no  39 longer are present in that middle band between north  40 and south?  41 A   It seems to be a feature of caribou distribution that  42 wherever an area has been bisected or disected,  43 however you want to say it, by a major transportation  44 corridor, or in some cases by a major reservoir, a new  45 dam or whatnot, there's been changes in numbers and  46 distribution.  And I'm quite certain that the human  47 factors are involved.  Caribou, because they do herd 9441  D.F. Hatler (for Plaintiffs)  In chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. GRANT  THE COURT  MR. GRANT  Q  up at particular times of the year and because they,  at least traditionally, historically, had these  migration patterns from seasonal-- from and to  seasonal ranges, they could be intercepted at places.  If they crossed a transportation corridor, they could  be intercepted there.  I've always been a little bit perplexed that there  wasn't more information available from such things as  the CN Railway about what did they feed their workers  because it was about the time that they put that  railway through that area that the caribou numbers  started to dwindle, and it seems plausible, but not  documented, that that kind of effect --  Q   Oh, literally what did they feed their workers, that  they may have hunted caribou?  A   That's right.  It would have been an easy source  because they were coming to you and they were coming  in large numbers.  I have heard reports from some of  the old-timers in the area of large numbers of caribou  crossing the Bulkley Valley back in the early part of  the century and they certainly don't do it now and  haven't done it in the last 40 years.  Should we adjourn, Mr. Grant?  Are you in the middle  of something?  I just would complete this map with two questions  and then I could stop.  Yes.  All right.  You refer to the Telkwa -- the Telkwa herd.  That's  the one that's the heavy dark circle just south of  Smithers ; is that right?  A   That's right.  Q   And the Tweedsmuir herd is the larger circle just  south of Francois Lake and Ootsa Lake?  A   Yeah, it's the Tweedsmuir circle herd.  There's more,  as you can see the other shading to the south.  Q   Those three circles or three areas --  A  Are all probably technically Tweedsmuir caribou, but  there seem to be different populations down there  related to the time of year they do the surveys.  Q   And you've mapped along Ootsa Lake and the reservoir  earlier 1952 free-flooding shoreline of that lake  series; is that right, that larger herd seems to be  bordered by the reservior?  A   Yes.  And I think that that's partly a matter of  convenience too.  There is some movement in the  wintertime outside of that area, but primarily that 9442  D.F. Hatler (for Plaintiffs)  In chief by Mr. Grant  1 seems to be the centre of the range in that area.  The  2 boundaries are not rigid by any means.  The caribou  3 are very mobile.  4 MR. GRANT:   Okay.  Thank you.  Those are all my questions.  5 THE COURT:  Thank you.  We'll adjourn until two o'clock, please.  6 THE REGISTRAR: Order in court.  Court will adjourn until two.  7  8 (PROCEEDINGS ADJOURNED TO 2:00 p.m.)  9  10 I hereby certify the foregoing to be  11 a true and accurate transcript of the  12 proceedings herein transcribed to the  13 best of my skill and ability.  14  15    16 Tanita S. French  17 Official Reporter  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     xh2 D.F. Hatler (for Plaintiffs)  47 9443  D.F. Hatler (for Plaintiffs)  In chief by Mr. Grant  1 (PROCEEDINGS RECOMMENCED AFTER LUNCHEON RECESS)  2  3 THE REGISTRAR:  Order in Court.  4 MR. GRANT:  5 Q   I am going to refer the witness now to map number 12.  6 Once again you have identified this as one of the maps  7 that you prepared, and just so that His Lordship is  8 clear of the process, is it correct that what you did  9 was a -- you prepared a map, an overlay system, and  10 then that was transferred by the cartographer Mr.  11 Skoda onto this map series?  12 A   That's right.  13 Q   But you reviewed these maps after he drafted them  14 prior to presentation in court to ensure that he  15 accurately reflected what you were saying?  16 A   Generally speaking, yes, especially with the example  17 of map number 2 and some of the others where you have  18 a lot of very small units within the total, it's hard  19 to be precise on a visual assessment of boundaries at  20 different scales, but I haven't detected any really  21 major problems.  On the mountain goat there is one  22 that I see that's probably an interpretation problem  23 that he had.  24 Q   Okay.  I am going to come to that in a moment.  But  25 you said map 2.  It is map 358-12.  It's the map 12  26 that you are referring to now?  27 A   That's right.  28 Q   Right.  And just before you get to that question, on  29 map 11, Exhibit 358-11, there is no reference to the  30 area along the bottom of the map which would be on the  31 northwest -- to the northwest, which is the Alaska  32 panhandle.  I note on this map that you have actually  33 made some reference to the presence of mountain goats  34 in the Alaska panhandle.  On what basis did you do  35 that?  36 A   I consulted Alaska, an atlas of Alaska wildlife  37 distribution.  There are no caribou in that area.  38 That's why the —  39 Q   So it wasn't an absence of you gathering data?  40 A   That's right.  41 Q   There was no caribou there.  Okay.  Now, you said  42 there was some interpretation there?  43 A   The one that caught my eye, because I referred to it  44 two or three different places in the report, is the  45 low land occurrence of mountain goats in some areas of  46 the province, particularly on the northern part of the  47 province, and a -- probably the best example of that 9444  D.F. Hatler (for Plaintiffs)  In chief by Mr. Grant  1 is the Stikine Canyon, and in that area the mountain  2 goats exist, at any time of the year you can find  3 mountain goats below timber-line in the Stikine  4 Canyon.  And that isn't shown on this map, but I  5 looked at my overlay and it confirms that there is a  6 section of the river there that is shaded.  And he  7 probably assumed, the cartographer that is, because  8 all the rest of the distribution I showed seemed to be  9 related to upland areas, to Alpine areas, that  10 probably my brush stroke had been a little bit too  11 wide in that area.  But there is an occurrence in the  12 Stikine Canyon, all of this area, the tributary that  13 comes into the Stikine -- see if can I find the  14 Klastline.  From the Klastline River on up there are  15 occasional goats in that area.  16 THE COURT:  Which river?  17 THE WITNESS:  The Klastline River is the one that comes just  18 below Mount Meehaus, which is opposite the Tanzilla.  19 This is the Klastline River here.  2 0 MR. GRANT:  21 Q   And where would the goats --  22 A   So the goats are in this area.  Well, most of the  23 goats are in this area there.  24 Q   Can you mark with a circle on the Exhibit 358-12 where  25 you are showing the goats?  26 A   I would just extend the boundary something like that  27 just to include the river.  In most areas that isn't  28 done, and the cartographer probably assumed that that  29 was a mistake on the map.  Actually this is an area  30 where the goats do occur, and there are undoubtedly  31 others that I don't know about.  And the other point  32 to make with the mountain goats distribution is that  33 even though a large area may be shaded as harbouring  34 goats, not every mountain in there will always have  35 goats on it, and there are some areas that goats are  36 rarely found within the broad area of distribution.  37 It's a problem of consistency.  You can't map each  38 mountain at this scale.  39 THE COURT:  Where do you say the Stikine Canyon is?  40 THE WITNESS:  The Stikine Canyon, the grand canyon of the  41 Stikine starts somewhere about in this area and  42 includes all of this section here.  4 3 MR. GRANT:  44 Q   So it's the upper half of that where there are goats,  45 the upper half of the grand canyon of the Stikine --  46 A   Is where the goats are seen most commonly.  I am sure  47 the occasional one gets down into here, but most of 9445  D.F. Hatler (for Plaintiffs)  In chief by Mr. Grant  1 the ones we have here are always in this --  2 THE COURT:  So the Stikine Canyon is east of Telegraph Creek?  3 THE WITNESS:  That's right.  4 THE COURT:  Yes.  Right.  Thank you.  5 THE WITNESS:  Upstream from Telegraph Creek.  6 THE COURT:  Yes.  7 MR. GRANT:  What I am going to do on the exhibit, with my  8 friend's concurrence, is he marked it with a red line.  9 I am just going to put a correction on the boundary,  10 write that on the head, or an arrow and an A pointing  11 to that particular line, because it's a red line on  12 the exhibit.  Okay.  13 THE WITNESS:  The thing to be aware of is the areas that are  14 marked as not having goats won't mean there would  15 never be a goat there.  Goats sometimes make low land  16 travel through between seasonal ranges, and there are  17 accounts of seeing goats out in non-goat habitat, but  18 these are the areas that are most commonly used by the  19 animals.  And again the mapping, the broad mapping is  20 primarily based on the provincial management plan map,  21 and in some cases I have just narrowed some of these  22 smaller ranges.  I have narrowed down based on the  23 fact that there is a lot of low land forest habitat in  24 between that really doesn't have goats.  The  25 provincial maps don't show that distinction because of  26 the scale --  27 Q   Okay.  Do you know where Smoke Mountain is?  28 A   Yes.  29 Q   Is there a goat population there?  30 A   Smoke Mountain is down in the south of Houston, more  31 or less -- it would be down in this area southwest of  32 Nadina Mountain.  I can't show it on there, and I  33 didn't map that one.  I don't -- I didn't check on  34 there, but I mentioned to you the other day that I  35 knew that there was another area where goats have  36 frequently been seen, and apparently there is a small  37 viable population on an area with no Alpine habitat.  38 THE COURT:  Which direction from Nadina Mountain?  39 THE WITNESS:  It's south — no, I'm thinking of a normal map  40 orientation.  It would be southwest.  41 MR. GRANT:  42 Q   Can you put an "X" in the approximate area that you  43 are referring to.  I appreciate it's approximate  44 because of the scale of the map.  45 A   It would be in this area somewhere.  46 THE COURT:  Well, in the green -- in the green area southwest of  47 Nadina? 9446  D.F. Hatler (for Plaintiffs)  In chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE WITNESS:   Right.  MR. GRANT:  Right.  Q   Just mark it approximately.  A   This is the Morice with the Indian name.  Q   Yes.  And this is Morice Lake?  A   Yes.  So this would be -- I guess it must be over  here.  No, it's in this general area here.  Q   Do you want to mark that with an "X" on the exhibit.  A  Well, I hate to mark it with an "X" without knowing  exactly what it is.  If I had another map I could do  it.  Anyways.  Q   That's the approximation?  A   Yes, it's down in that area.  And there have been  reported goats here and there in timbered areas with  appropriate escape terrain, mountain goat escape  terrain, which means cliffs, in the Parrot Lakes area,  which is also in that general area.  So it's not  uncommon to have mountain goats other than in the  mountains and some areas in northern B.C., and it's  hard to map all of those.  I'm sure we don't even know  about all of them.  MR. WILLMS:  I wonder if the witness could explain the source of  the reports.  He has just said reports and everything  else is carefully referenced carefully in his report.  What reports is he talking about?  THE WITNESS:  Mainly these are reports to me as regional  wildlife biologist from loggers in the area who said  we saw goats in such and such a place.  The ones on  Smoke Mountain I actually saw.  I also saw goats on a  cliff face at -- along the Morice River, and had  previously been told about those by fisheries officers  who were flying surveys along the Morice and said "Did  you know there were mountain goats out there", and I  went and checked around and there were.  Q   Can you indicate where that is on the map?  A   Yes, I can show you exactly where that one was.  Q   Maybe you can put a letter B maybe.  The witness has  indicated along the Wedzen Kwe, Morice River just  northwest of -- northwest of Nadina Mountain.  COURT:  Northwest?  GRANT:  Where you see -- right adjacent to the "W" in Wedzen  Kwe.  That's right on the map.  COURT:  That's the Morice River?  GRANT:  Yes.  WITNESS: The point is I haven't mapped all of these again  because of the scale, and it's not clear whether these  goats are in these areas year round or are -- will  THE  MR.  THE  MR.  THE 9447  D.F. Hatler (for Plaintiffs)  In chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  THE  THE  THE  THE  MR.  move back into the areas that I have designated  seasonly.  So that I am just mentioning for the record  that there are places on this map that I don't have  showing populations or a full-time distribution of  mountain goats, where nevertheless we know that  mountain goats occur occasionally.  And those -- and in your report you describe the  history and zoogeography of the mountain goats in this  region?  That's right.  Okay.  I would like to move you to map number thirteen  that you have referred to already.  Dr. Hatler, just one thing I would like to ask you.  Am I to conclude from these maps that many -- just a  moment -- that goats are found in a larger area than  caribou?  WITNESS: Yes.  COURT:  That doesn't say anything about their population, of  course, the concentration of population?  WITNESS:  That's right.  They are more widely distributed in  this area.  I probably should mention that mountain  goats are really a B.C. animal.  I think that the  figure that's given in a major monograph on mountain  goats is that approximately 75 percent or so of the  world's mountain goats occur in British Columbia and  Alaska, and most of those in B.C., and the largest  proportion of the B.C. population is in north-western  B.C.  So we are looking at really the centre of the  world's distribution of mountain goats when we are  talking about north-western British Columbia.  They wouldn't be anywhere near as populous as  caribou, would they?  In total numbers?  Yes.  Yes.  You think they would be.  Yes.  A  Q  THE COURT  THE  THE  THE  THE COURT  WITNESS  COURT:  WITNESS  COURT:  WITNESS  GRANT:  Q  In this region?  A   In that area there would be more mountain goats than  caribou.  Q   Do you recall what -- maybe we should refer to your  report.  But the population estimates of the mountain  estimates of the mountain goats in this area --  A   I have done surveys in the provincial parks for the  Parks Branch, and in the -- within the boundaries of  Spatsizi Park itself we counted something on the order 9448  D.F. Hatler (for Plaintiffs)  In chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  A  Q  A  THE COURT  MR. GRANT  A  Q  A  of 850 mountain goats, and that was a minimum number,  that certainly there is at least a thousand in that  area, which is just a very small proportion of the  total area shaded here for mountain goats.  For  Tatlatui Park, which is just to the south of the  Spatsizi, there would be another 125 odd that were  actually located.  That's again a minimum count.  You  never see them all.  And as I have indicated, I have  seen as many as 70 along the Stikine Canyon in any one  flight.  So most of the area is unsurveyed, but the  total provincial estimate for caribou is probably less  than the number of goats that are in this area.  I  don't have any difficulty with that.  Okay.  On page 28 of your report you indicate in the  second paragraph of page 28 that:  "As noted by Chadwick (1983), at least three-  quarters of the world population of mountain  goats exist in British Columbia and southern  Alaska.  The B.C. Wildlife Branch (FCFW 1979)  estimated that the British Columbia total was  on the order of 45,000 (plus or minus 20%),  of which more than 50% are assignable to the  area of interest here."  Uh-huh.  So there would be -- there would be more than 23  thousand mountain goats in the area --  If that estimate is correct.  I'm not saying I agree  with that estimate.  :  What page is that please?  :  Page 28.  Listing it as the estimate of the day, and that's the  one that's given in the provincial management plan,  but —  You have cautioned at a plus or minus 20 percent of  that in your report.  That wasn't my caution, that was the provincial  management planning caution.  There is really no hard  evidence for that.  It's based on an expansion, which  is all they had available at the time, and that is  assuming that goats are at such and such a density in  the high density areas, and at such and such a density  in the low density areas, and the fact that you can  measure the area of these areas, you multiply the area  by the number of animals per unit area to get an  estimate of total numbers.  That is easily done, and 9449  D.F. Hatler (for Plaintiffs)  In chief by Mr. Grant  1 you can do it at home, but to really make it count you  2 have to do it in the field.  Biologists like kite  3 flying.  It's an outdoor sport.  4 THE COURT:  Doctor, you are telling me something that seems to  5 me to be remarkable, and totally at variance of what I  6 always understood.  That's why I am troubled by what  7 you say, and, of course, I want to make sure that I  8 have your evidence correctly.  Are you saying that  9 there are mountain goats on the islands of the Alaskan  10 panhandle?  11 THE WITNESS:  Yes.  12 THE COURT:  Where it's so wet and so damp and raining all the  13 time?  14 THE WITNESS:  Mountain goats seem to to do better in -- again,  15 throughout all this deep snow, wet coastal forest area  16 where there are suitable Alpine areas -- in the  17 summertime they are very lush, you have a lot of good  18 greenery.  In the winter-time they are very rugged and  19 steep and the snow tends to slide down and fall down.  20 That is the major source of mortality for mountain  21 goats in areas where they really have been studied is  22 avalanche, and their response to aircraft I theorize  23 is actually an innate response to large noises above.  24 They hide when they hear an aircraft, go under ledges.  25 They live in a situation where deep snow and moving  26 snow is a fact of life, but when the snow moves off  27 that exposes the ground again.  They are adapted with  28 a very, very thick coat and behavioural adaptations to  29 get up into that high country where the wind is  30 blowing and the windshield factor is just enormous.  31 But the wind blows, the snow clear and they have  32 access to vegetation in the winter-time.  33 THE COURT:  But you don't show them in the areas of highest  34 mountain -- in some of the areas of highest mountain  35 in the areas shown in map 12.  For example, the  36 mountain areas just to the west of the northwest  37 corner of the claim territory there is a large Alpine  38 area there, and further north there is another large  39 Alpine area.  You don't show goats in there at all.  40 THE WITNESS: This isn't to say there would be the odd one  41 crossing up through there, but mostly they are below  42 the area which is largely ice fields and newly emerged  43 ground from underneath the receding snow fields.  So I  44 wouldn't say that you would never see a mountain goat  45 in that area, but -- and this actual mapping, if the  46 green is accurate and there is green vegetation in  47 there, then there is goats there.  If my map would 9450  D.F. Hatler (for Plaintiffs)  In chief by Mr. Grant  1 probably -- was based on the assumption that the snow  2 fields were permanent, and I have excluded the snow  3 fields, but I haven't necessarily excluded the  4 immediate surroundings, if there is any green material  5 on them at all.  The goats are right up against the  6 ice still, and they probably have been since the it  7 started to recede --  8 THE COURT:  Are these the same species of goats that we have in  9 the Rockies?  10 THE WITNESS:  Yes, there is only one species, and only one  11 species according to the Taxonomic studies that have  12 been done.  They assume they haven't been around all  13 that long and haven't been isolated long enough to  14 diversify to any extent.  They have done some pretty  15 good studies on large series of skulls, which is what  16 you usually use, hard materials when you are trying to  17 distinguish between different varieties, and the  18 Rockies and the Cascades the northern goats are all  19 the same.  20 THE COURT: I suppose I am troubled that I have never, except in  21 the Rockies, I have never even seen a mountain goat in  22 British Columbia, but you say they are in greater  23 abundance than caribou.  24 THE WITNESS:  Yes, overall.  You won't see a group of 500 goats  25 as you will with caribou.  2 6 THE COURT:  No.  27 THE WITNESS:  But the largest group I have seen is ninety of  28 mountain goats, and that was on a mountain within the  29 study here not far north of Smithers.  3 0 MR. GRANT:  31 Q   Which mountain?  32 A   It's Netalzul.  So if you looked --  33 Q   Is that where the Bulkley River is there?  The word  34 the Bulkley River on the map.  Just above that word is  35 a brown area.  Would that be the Netalzul boundary by  36 the -- above the word New Hazelton?  37 A   It's actually the headwaters of the Suskwa there, the  38 one between the Suskwa and the Babine.  39 Q   Okay.  40 THE COURT:  Are there figures kept of how many goats are taken  41 hunting each year?  42 THE WITNESS:  Yes.  43 THE COURT:  How many are taken in British Columbia each year?  44 THE WITNESS:  I don't have the figures right at the top of my  45 head, but it's --  46 THE COURT:  I would say it's very rare.  47 THE WITNESS:  It's measured in hundreds, not thousands. 9451  D.F. Hatler (for Plaintiffs)  In chief by Mr. Grant  1 THE COURT:  Yes.  2 THE WITNESS:  But that's kind of by design too.  There are quite  3 restricted regulations.  Goats are quite vulnerable to  4 hunting.  Once you get up in the mountain, goats are  5 quite easy to see generally.  They are white against  6 usually a dark background at the time of the year that  7 you hunt them, and their behaviour, as long as they  8 are on a cliff they feel safe.  They are evolved to  9 escape things that run after them, but not things that  10 fly after them, like bullets, so the regulations help  11 keep that kill down.  But the other thing that helps  12 is the nature of the country itself, and they are in  13 very rugged surroundings, so hard to get to.  14 THE COURT:  Well, you shattered another illusion I had, doctor.  15 Thank you.  I had a pet one time at Lake Louise.  He  16 came to see me every night.  I thought he was the only  17 one in the whole Rockies, the only one I ever saw.  18 THE WITNESS:  No, it's quite surprising the number of goats that  19 do appear in some of the areas that -- well, like the  20 northern coast range, just enormous numbers of  21 mountain goats, and I just completed a survey in the  22 Haines Triangle area, which is Tatshenshini River  23 country, and I saw several hundred mountain goats in  24 one day.  25 THE COURT:  All right.  Thank you.  26 MR. GRANT:  I am tempted to -- given that series of questions,  27 one of the volumes deals with the background material  28 on the mountain goat.  29 THE COURT:  If it's here, no doubt I will come across it.  30 THE WITNESS:  The monograph that I referred to by Chadwick is  31 actually written in a popular format, and it's a very  32 very good book, an excellent book on mountain goat.  33 MR. GRANT:  34 Q   I would like to refer you to map thirteen.  Just one  35 point I was going to ask you about.  On all of these  36 is this black line, and this black line was put on by  37 the cartographer; is that right?  38 A   Everything was put on these maps by the cartographer.  39 Q   On your draft the black line was also put on?  40 A   Yes.  And I put those on because I just had a blank  41 piece of acetate overlay and sometimes -- I didn't  42 always do everything in one sitting, so I had to go  43 back and and start mapping from the same place, so  44 that was just a reference point.  It was on the base  45 vegetation map.  46 Q   That was a draft map prepared by Sybolle Haeussler?  47 A   That's right. 9452  D.F. Hatler (for Plaintiffs)  In chief by Mr. Grant  1 Q   And you were using your overlay on that, so you used  2 it in point of conjunction --  3 A   That's right.  4 Q   Now, it appears here that your -- in some sense that  5 this map is almost a negative of the map we have just  6 been looking at, that is the mountain goat, and this  7 relates to the -- where moose are common and where  8 they are present in low density, and then of course  9 you have the limits of distribution as estimated by  10 Hatter in 1950, which you have also referred us to.  11 Can you comment, then, on the black dating that you  12 have put in on this map by reference to one or two of  13 those dates, and what significance, if any, that has  14 to you in terms of distribution, range and  15 zoogeography.  16 A   In the southern portion of the study area it's -- all  17 of the evidence indicates that moose were -- if not  18 absent, exceedingly scarce, and actually I believe  19 that they were largely absent from the southern part  20 of that -- from the southern half of this map up until  21 the the latter part of the 19th century and the early  22 part of this century, and those black dates indicate  23 some of the first recorded sightings for the locations  24 that they are shown.  I have discussed in the report  25 the fact that a first sighting again is an  26 intersection between a human observer and an animal,  27 and not necessarily the first occurrence of the  28 animal.  So they might have been in these areas for a  29 matter of years before somebody saw one, but the  30 records, as assembled mostly by Jim Hatter and a  31 fellow by the name of Munroe, these were the first  32 sightings known for the -- these areas, and it did  33 show this pattern of the so-called invasion of moose  34 into southern and central British Columbia from the  35 north, and the trend was southward and westward.  36 Q   Would you call it an invasion?  37 A  Well, the term is relative, and it was used because it  38 happened over a relatively short time period within  39 the period of time when people could see the  40 difference.  Realize that suddenly there are moose  41 here when there weren't, and now there are more here  42 and some down there where there weren't, so there was  43 this spread.  But it was by the normal population  44 processes that were described by Darlington, and I  45 referred to in the early part of the report.  It's a  46 question of animals getting favourable habitat,  47 reproducing with the population numbers increasing, 9453  D.F. Hatler (for Plaintiffs)  In chief by Mr. Grant  1 because reproduction exceeds death.  That's what  2 happens -- that's how you get an increase, and with  3 the dispersal of this increase in population reaching  4 out to these new areas and the new areas being  5 suitable because of some changes in habitats.  6 Q   Do you have any explanation as to why that dispersal  7 happened in this short period of time of moose I am  8 talking about?  9 A  With the information that was available to me and  10 having for the first time the ability to reach some of  11 the sources on climate patterns and so forth, and  12 become familiar actually for the first time with the  13 period of time called the neoglacial, that very cold  14 period that extended for maybe a century or two prior  15 to the mid 1800s, it seems likely that that climatic  16 influence was a major effect in preventing the spread  17 of populations prior to that time and --  18 Q   What would be -- why would the climate cooling have an  19 effect on the moose population spread?  20 A   You will see it on a small scale today even.  You have  21 severe winters when there is no population increase  22 and when you actually may have a decline in numbers,  23 and what we may well have had at that time was a  24 series, a long series of very poor winters and  25 presumably wet, cold summers which were not conducive  26 to production of calves or good forage, so that's the  27 kind of thing that would have happened.  Clearly when  28 you start doing autopsies and not having bodies, you  29 have to -- you are a bit out on a limb.  But this has  30 been something that has puzzled biologists for quite  31 awhile, trying to explain the sudden emergence of  32 moose into this area, and most have agreed it was a  33 change in habitat, and knowing how moose respond in  34 particular to the changes brought on by burning.  I  35 mentioned fire earlier.  36 Q   Yes.  37 A   That removing the climatic cover and replacing it with  38 aspen and various other shrubs that moose use and  39 thrive on, that's when you get these dramatic  40 increases in moose numbers, and it was undoubtedly  41 involved in the expansion of moose in this area.  The  42 thing that didn't quite add up for me was again given  43 the fact that it seems to be so hard for the forest  44 service to prevent these areas from burning now, and  45 they maintain all of these fire look-outs and they  46 maintain a tanker base at Smithers and Deas Lake and  47 various other places, that why suddenly would it burn 9454  D.F. Hatler (for Plaintiffs)  In chief by Mr. Grant  1 when it -- and why didn't it before.  The most likely  2 explanation is that the climate suddenly made enough  3 of a change so that it became dryer, that is became  4 dryer and more conducive to burning.  So that seemed  5 like a logical explanation.  I would be prepared to  6 accept other explanations.  All I can say is it's  7 consistent with the facts.  I'm not saying that's  8 necessarily the way it is.  The other thing that  9 helped me feel stronger about that was the pattern of  10 the deer distribution, which we will be talking about  11 probably in a few minutes, but it corresponds.  And  12 here we have two species of all the species involved  13 in the study, and those are the two species most  14 sensitive to snow conditions, deep snow.  15 THE COURT:  You say most sensitive.  What do you mean?  16 THE WITNESS:  The ones that winter seem to affect more than the  17 others.  In the case of --  18 THE COURT:  They don't thrive in deep snow?  19 THE WITNESS:  They don't thrive, and winter is a period of time  20 when they are just barely subsisting in most cases,  21 unless you have a mild winter like we have had for the  22 last two to three years, but in a bad winter you will  23 have animals dying, and the following year you will  24 have animals failing to produce young, because they  25 are undernourished and so on.  Deer are not at all  26 adapted to deep snow or to severe winter situations.  27 Moose are much better adapted and not as good as, say,  28 caribou and goats.  It's all relative.  29 Q   You refer in your report, and it's cited at the top  30 there in the last column of map thirteen at the top  31 line, you talk about in your summary the dispersal of  32 the moose, and then you say that:  33  34 "... is generally thought to have been due  35 primarily to habitat modifications associated  36 with European settlement and prospecting  37 activities.  However, climatic factors may  38 have been the major force delaying the post  39 Ice Age dispersal.  Winters associated with  40 the Little Ice Age which extended into the  41 mid-1800s may have been too severe to allow  42 expansion and population growth from the  43 nothern centers, while summer conditions may  44 not have been conducive to forest fires or to  45 good food plant production.  The amelioration  46 of the climate, which has persisted to the  47 present probably enabled the observed 9455  D.F. Hatler (for Plaintiffs)  In chief by Mr. Grant  1 expansion to commence."  2  3 So just to be clear, you differ with this -- this is  4 what you say at the beginning is generally thought,  5 that is the European settlement and prospecting  6 activities?  7 A   I don't know the extent of the burning that was  8 associate with that.  I think that there may well have  9 been some effect if this was -- if there was major  10 large scale burning as a result of that activity, but  11 again while these are -- that is consistent with the  12 idea that it was that kind of habitat change.  What I  13 had trouble understanding was why didn't it happen  14 before people came along to burn these habitat.  Why  15 didn't they burn themselves?  I don't have again the  16 figures right with me, but talking to one of the  17 officers of the forest service in Smithers, was he was  18 telling me he had one of these new machines that  19 measures lightning strikes and plots them on maps so  20 they can check these out and get something like 200  21 lightning strikes a day in the summertime, and with  22 that -- has that changed.  You know, that's a climatic  23 effect as well.  So it doesn't make sense to me that  24 it wouldn't have burned before, with or without man,  25 and if it had burned, it would have been conducive to  26 supporting moose.  27 Q   And since you have done the report have you talked  28 with others in your field about this?  2 9 A   Some, yes.  30 Q   And do other -- other biologists?  31 A   By and large I wasn't -- I was kind of inclined to lay  32 low on it, because there was a confidentiality aspect  33 of that, since it was going to be used in the case.  34 It wasn't really a public report sort of thing.  But I  35 always had in my mind I wanted to explore it more once  36 everything was a little freer.  37 Q   What I am saying to you is have you talked to other  38 biologists about the concept that climatic habitats  39 could have been the cause for the moose -- climatic  40 change could have been the cause for the moose --  41 A   I have talked to one fellow who was my boss in  42 Smithers actually.  He was the regional director, but  43 he was -- he had come from a biologist's background  44 himself.  45 Q   What was his name?  46 A   David Spalding.  47 Q   Yes. 9456  D.F. Hatler (for Plaintiffs)  In chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  THE  THE  THE  THE  THE  THE  THE  THE  THE  THE  MR.  A  And found out just by chance that he had been involved  in writing a chapter for a wildlife '87 book that was  put out by, I believe, the provincial government, and  had gotten interested in some of this historical stuff  and spent some time in the archives and assembling  some of his own information on occurrence of ungulates  in historic times, and he was quite amazed, as was I.  We came to a similar conclusion without either of us  knowing that the other had been doing it.  So that's  really the only person that I talked to to any great  extent.  Q   And that is relating to the climatic effect?  A   Yes.  Q   Can you go to map 14 now.  COURT:  Before you leave, so I get a picture of it, what do  you say about the population of moose in the province?  WITNESS:  You mean in terms —  COURT:  In relation to caribou and goats.  WITNESS:  More.  COURT:  More than?  WITNESS:  By quite a few.  COURT:  All right.  WITNESS:  Measured in a couple of hundred thousand anyway.  COURT: Is it true the moose population in the province is  increasing?  WITNESS:  My guess is over the last few years, given the  mild winters and fairly restrictive hunting  regulations and some of the predator control  programmes and everything it must be.  Certainly in  the areas that I have been focusing my -- most of my  activities in, I would say that it is certainly not  decreasing.  All right.  Go ahead Mr. Grant.  COURT  GRANT  Q  A  Q  A  Q  A  Just one thing.  I just wanted to ask you this.  If  what you indicate if that if an area is burned, for  example, there is a forest fire, that the resulting  vegetation coming in after the burn is improved  habitat for moose, for example, is that right?  Uh-huh.  If an area like the Bulkley Valley was burned and then  it was used for fields, would that habitat be useful  for --  No, it's the forest cover that we are talking about.  It would have to be the wild vegetation that assist  the moose population?  Yes.  And there are -- something that I have often 9457  D.F. Hatler (for Plaintiffs)  In chief by Mr. Grant  1 wondered about and have puzzled about is the fact that  2 a logging clear-cut, which will produce some of the  3 same kinds of shrub that a fire will, will not be as  4 supportive of moose as the fire itself.  Partly that  5 seems to be that you have large numbers of standing  6 snags in most of the really good burns that kind of  7 act as psychological cover for the moose.  They are  8 really in the open when they are in a clear-cut,  9 whereas they are not so much in the open when they are  10 in an area with lots of standing snags and, you know,  11 the shrubbery is probably a little richer as well,  12 because you have all of that mineral content from the  13 fire that goes back into the soil.  So it's a  14 fertilizer effect as well.  But it would be nice if  15 logging could emulate fires somehow.  They probably  16 could with smaller clear-cuts.  17 Q   So the clear-cutting -- the impact of the  18 clear-cutting in the area that you were regional  19 wildlife biologist, this area here, has not increased  20 moose habitat or enhanced --  21 A   It has increased some habitat.  It has often decreased  22 overall habitat, because it has also removed some of  23 the winter habitat.  Probably agriculture has taken  24 more of the winter habitat in the immediate Smithers  25 area than forestry, but that's the lowest common  26 denominator for moose habitat is the amount of winter  27 range.  In the summer range there is no limitation.  28 They can range out wide areas.  They are not  29 restricted in their mobility, and, you know, they can  30 do fine, but in the winter-time there are critical  31 areas that -- in the hardest part of the winter and in  32 the worst winters they will always end up in those  33 places, and those are the places that almost always  34 are valley bottom situations, and in B.C., which is a  35 mountainous country, the valley bottoms are also the  36 areas that the people use.  37 Q   And that's why you show them as most common in the  38 valley bottoms on map thirteen?  39 A   That's right.  Those are the areas that are the focal  40 points for moose occurrence and distribution, and  41 those are the major systems that you will find them on  42 in the winter-time.  43 Q   Just as an aside, the photograph there of the moose  44 and on map 12 of the mountain goat and map 11 of the  45 caribou, those are your photographs?  46 A   Yes.  47 Q   You have taken those photographs in the wild? 945?  D.F. Hatler (for Plaintiffs)  In chief by Mr. Grant  1 A   Yes.  2 Q   We'll refer to map 14, please, which you said was  3 connected, I think, because in the sense -- this is  4 the map, Exhibit 358-14, is the mule and black-tailed  5 deer, and this map shows their distribution, and it's  6 correct and the summary is correct, although  7 abbreviated synoposis of your report?  8 A   That's right.  9 Q   And the common is again the dark brown, and those that  10 are present are the light brown, where they are  11 present, and the non-coloured area shows that there  12 is -- there are not -- it's where they are not present  13 for the further north?  14 A   That's right.  15 Q   And then you had a line, this dotted double red line  16 which you indicate is approximately 1860 distribution?  17 A   Uh-huh.  18 Q   Can you explain this in terms of the movement of  19 the -- and when you say mule, black-tailed deer, are  20 we talking about one species here?  21 A   Yes, it is one species, and they -- the term species  22 is usually reserved for an assemblage of organisms  23 that will interbreed.  In this case the black-tailed  24 deer is a sub-species of them, but black-tails and  25 mule deers will and do interbreed.  For instance,  26 around Hope you will find mule deer, black-tailed deer  27 and hybrids.  That's --  28 Q   That's why you have combined it in the study?  29 A   That's right.  But out on the extreme western part of  30 the distribution they are all black-tails.  31 Q   Uh-huh.  32 A   Out on the coastal islands and on the immediate coast  33 and farther inland they are pretty well all mule deer,  34 so it's an east/west phenomenon, and the distinction  35 between the two races are sub-species.  36 Q   Will —  37 A   This distribution that is shown here, based on the  38 information that I had, this line seemed to indicate  39 the northward extent of deer range at that time period  40 that was the terms of reference in the 1860s.  Again I  41 would expect some movement back and forth across the  42 line.  It wasn't an invisible shield or anything, but  43 that seems to be where the functional viable  44 population is, were all south of that.  And it was at  45 about the same time, maybe slightly earlier than the  46 movement of moose into this area, that the deer also  47 appeared in that area, and -- 9459  D.F. Hatler (for Plaintiffs)  In chief by Mr. Grant  1 Q   The moose coming from the north?  2 A   The moose coming from the north, the deer coming from  3 the south.  And the deer, though, had been closer for  4 centuries.  They always -- all those records seem to  5 indicate that they had been here for a long, long  6 time, been on the coast, and they had been fairly  7 close in comparison to the moose range, to the area  8 that -- to the study area that we are talking about  9 here, and they just didn't increase their range for a  10 long period of time, and then suddenly they did it  11 quite dramatically, and there is even these little  12 local populations much farther north here all the way  13 up to the Yukon border.  They are existing in a pretty  14 precarious state in most of these farther north  15 distributions.  They are subject to major declines in  16 any one really severe winter.  17 Q   Now, you are talking about now --  18 A   Now and always, yes.  19 Q   Yes.  20 A  Mule deer are not -- they are not browsers to the same  21 extent that moose are.  Browsing, as opposed to  22 grazing.  Browsing is when you are feeding on  23 shrubbing material, woody material, eating branches  24 off of shrubs and branches off of trees.  Deer will do  25 that, but they also do a lot of grazing.  They eat off  26 the ground, and the ground becomes inaccessible with  27 the deep snow conditions, so that they are not as  28 flexible in surviving that kind of a situation.  Plus  29 their mobility is hindered when they are in the deep  30 snow.  It's very energy draining to get from place to  31 place in the winter-time, so they are going to lose on  32 that.  And then they are also very vulnerable to  33 predators if they are not mobile.  So there are really  34 sensitive indicators of winter severity conditions,  35 and they have to have -- in all of these areas where I  36 know that they exist north of the continuous  37 distribution there are peculiarities of the local  38 situation that -- and particularly in the Stikine  39 drainage you have these very, very dry hillsides south  40 facing, fairly steep that shed snow very readily, so  41 they can't make it in there, but they are never going  42 to increase and fill this gap with deers, unless the  43 environment and the climate changes a lot more than it  44 has so far.  I guess maybe the greenhouse effect will  45 do it for them.  46 Q   This is the -- and in this case the mule deer one  47 where you use both the historical, the written 9460  D.F. Hatler (for Plaintiffs)  In chief by Mr. Grant  1 historical records and the archaeological records,  2 which corroborated, and the early biological material  3 that you referred to?  4 A   That's right.  5 THE COURT:  I'm not sure that I understand your double line with  6 arrows.  7 THE WITNESS: The arrows point in the direction of the 1860 and  8 previous distribution.  So that everything opposite  9 the direction of the arrows has filled in since that  10 time period.  And again their occurrences were about  11 the same time in the early 1900s, when they started to  12 be seen up in the Bulkley Valley, for instance, 1910,  13 somewhere in around there.  14 THE COURT:  So the areas on the opposite side of the arrows  15 are --  16 THE WITNESS:  Is relatively newly colonized.  17 THE COURT:  Post 1860.  So to the north and the east of the  18 line?  19 THE WITNESS:  That's right.  And the evidence is that they had  20 been all along the coast for a very long period,  21 because they were able to colonize all these islands  22 as well.  Probably when the -- there was a lot less  23 water in those channels than now, when it was all tied  24 up in the glaciation, although deer are quite good  25 swimmers.  26 MR. GRANT:  Prepared to go to the next map, My Lord, unless you  27 had some --  2 8 THE COURT:  No.  29 THE WITNESS:  Could I just summarize on that, to call attention  30 again to the combined picture that I get from the  31 moose and the deer.  Again that they were able both at  32 about the same time to make these expansions into a  33 part of the area where they hadn't been previously,  34 and both of them would respond to such things as fire  35 enhanced habitats, and again it seemed to suggest to  36 me that something like the cooling effect of that  37 neoglacial may well have been the thing that was  38 holding them back for so long within our recorded  39 history.  4 0 MR. GRANT:  41 Q   And just to be clear, these are the only two species,  42 the deer and the moose, of all of the ones you studied  43 in this study in which that migration occurred, that  44 coincidence occurred?  45 A  Well, that's right.  And that's because they have  46 similar -- somewhat similar ecological requirements.  47 Q   And the caribou, there was a change in the caribou's 9461  D.F. Hatler (for Plaintiffs)  In chief by Mr. Grant  1 habitat, but you are not connecting that as  2 necessarily caused by the same factors?  3 A   No.  Although it's possible.  Caribou are kind of  4 listed as a snow loving species, and it may be that as  5 things got dryer and warmer they got less suitable.  6 There also may have been competition of some form or  7 another with the moose, or the moose may have brought  8 in parasites.  There are lots of possible interactions  9 between the moose and the deer that may have affected  10 the caribou distribution somewhat.  The moose and the  11 deer, the two that I have homed in with respect to the  12 climatic effects.  13 Q   The next map is the map of the hoary marmot, and again  14 you use the same colouration of the dark brown being  15 common to abundant and the lighter brown being  16 present, mostly low density.  Now, you may correct me  17 if I'm wrong, but it appears that you do include on  18 this map, or included on this map are mountain ranges  19 where there are no marmot shown or mountainous areas,  20 such as north of Deas Lake and Cassiar as an example.  21 Is that right, or is that --  22 A  Mostly it's no information.  And I think I have  23 referred to -- I think that I kept that in the  24 summary, that -- yes, the last paragraph.  This isn't  25 a species that -- its never been a game species, so  26 never been a priority species for management.  It's --  27 it is a species that I have always been quite  28 interested in, just because it -- I don't know, I  29 guess it's the Alpine situation which I enjoy being in  30 anyway, but their life history is quite fascinating.  31 An animal that spends at least half and maybe almost  32 two-thirds of its life sleeping.  It's kind of an  33 interesting creature to start with.  I guess I envy  34 him sometimes.  But they are adapted to live in these  35 very hostile surroundings, and they do it by spending  36 most of the hostile periods under the snow, which is  37 quite a good insulating blanket.  In the summer a lot  38 of these Alpine areas are quite green and lush and  39 hospitable, so that it's a good nitch to have.  40 I have also been interested in them as prey species  41 for some of the furbearers.  Wolverines use them quite  42 a bit for instance.  I didn't mention that in this,  43 but I have recently in my reading of wolverines  44 realized putting all the information together that  45 they commonly use ground squirrels and marmots as food  46 for grizzly bears.  I have seen grizzly beers digging  47 out marmots quite a few times.  That relationship is 9462  D.F. Hatler (for Plaintiffs)  In chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR.  interesting.  Grizzly bears obviously spending --  expending more energy to get a marmot than they are  going to get from it.  Q   Do you in your historical research, particularly with  respect to Sam Black, does he refer to marmots as an  important food source, a food source of the Indian  people that he travelled amongst?  WILLMS:  I object.  That's going over the line that I  suggested earlier.  He can say that they were there,  but what -- the rest of it is interpretation, and I am  sure we will hear from the anthropologists or any of  the other experts on that.  I am not asking him to interpret what Black said.  I  am asking him if Mr. Black said that the marmots were  used as a food source.  You are asking whether the literature discloses  that.  You mean Sam Black the early explorer?  Yes.  I suppose he could do no more than tell what  somebody else said.  WILLMS:  That's the point, My Lord, and maybe Mr. Black is  entirely reliable and there is nothing we can do about  it.  COURT:  Can't prove the truth of it, but he can tell us  what's in the literature.  WILLMS:  He can say that somebody said that, I suppose.  COURT:  That's all it says.  WILLMS:  I don't know where that -- in respect of relevance  in respect of what this --  It doesn't take us anywhere, except it's a possible  source of reference for us to look at if we wants to  find out what Mr. Black said, and if it's published --  That's the point, My Lord, and that's why I have  this whole body of material, including all of the  historical sources ready to file, and I am able to  file it, and I don't have to ask the witness.  My  friend suggested that -- this witness has a 82 page  synopsis, that he refers to it directly in his report,  and I just wanted to bring that matter to the Court's  attention.  Has Mr. Black reported in published works on the use  made on hoary marmots?  WITNESS:  He referred to it in the journal, and the journal  was assembled by a fellow by the name of Rich, and its  been cited as such there.  COURT:  As food source?  WITNESS:  He had some native travelling with him and they  MR. GRANT  THE COURT  MR. GRANT  THE COURT  MR.  THE  MR.  THE  MR.  THE COURT  MR. GRANT  THE COURT  THE  THE  THE 9463  D.F. Hatler (for Plaintiffs)  In chief by Mr. Grant  1 were using it then.  2 THE COURT:  As a food source?  3 THE WITNESS:  That's right.  4 THE COURT:  Well, that proves that's what Mr. Black says.  We  5 have heard a lot from native Indian witnesses about  6 groundhogs as catch that they seem to place some  7 importance on.  When they are talking about  8 groundhogs, would they be talking about marmots, or  9 are they talking about something different?  10 THE WITNESS:  I wouldn't be able to answer that for sure.  The  11 other species that occurs in the northern part of the  12 province would be the artic ground squirrel, and  13 that's a possibility, but the artic ground squirrel  14 doesn't occur to any great extent south of the Stikine  15 system, so that there are none -- I think any  16 reference to a groundhog in the southern half of the  17 area here would probably be hoary marmots.  18 MR. GRANT:   I just refer you, My Lord, that on the maps they  19 have the Indian name as well as the non-Indian name,  20 and the groundhog was referred to by the Gitksan as  21 gwiikw, and of course I am not asking this witness if  22 gwiikw is the Gitksan word for hoary marmot, but just  23 point out to Your Lordship that my understanding is  24 that that is the case, that what he is talking about  25 is the hoary marmot.  Gitksan would refer to it as  26 gwiikw or, as you say, groundhog they often call it.  27 THE COURT:  All right.  Convenient to take the afternoon  2 8 adjournment?  29 MR. GRANT:  Certainly.  30 THE REGISTRAR: Order in Court.  31  32 (PROCEEDINGS ADJOURNED FOR A SHORT RECESS)  33  34 I HEREBY CERTIFY THE FOREGOING TO  35 BE A TRUE AND ACCURATE TRANSCRIPT  36 OF THE PROCEEDINGS HEREIN TO THE  37 BEST OF MY SKILL AND ABILITY.  38  39  4 0 LORI OXLEY  41 OFFICIAL REPORTER  42 UNITED REPORTING SERVICE LTD.  43  44  45  46 (PROCEEDINGS RESUMED AT 3:25 p.m.)  47 9464  D.F. Hatler (for Plaintiffs)  In chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  THE  MR.  MR.  THE  MR.  A  GRANT  COURT  GRANT  Q  REGISTRAR: Order in court.  COURT:  Grant.  GRANT:  Q   The research you did with respect to the hoary marmot,  as you've described, is -- was relatively new research  because there's -- but you did canvass all of the  published authorities that you knew were available  with respect to it; is that right?  That's right.  I'm going to go over to map number 16, and I also  confirmed, my lord, that just on that point of the  hoary marmot, that Detnii, the Wet'suwet'en word, is  the word for what's commonly known as groundhog.  Yes.  Thank you.  I'm on the wrong map.  Just a moment.  Now, can you explain with respect to the -- this  map again shows the distribution of beaver in the --  in the study area, with the dark showing where they're  common to abundant, and the lighter brown showing  where they're present but mostly low density, and it  appears that of course they follow the river, the  valley bottoms and water sheds; is that right?  That's right.  One caution on this is that any -- just  virtually anywhere where there's water, there's a  possibility of finding a beaver at least trying to  make a go of it for a short time.  I've seen beavers  on headwaters of streams even above the woody  vegetation as though they were hoping something more  was going to be a little farther up and they were  going to wait for it or something, but what I've shown  here are the areas where the really viable populations  are and -- with the information available and based  largely on the vegetation components of these valleys.  Beavers do not do well on streams that are lined  primarily with coniferous cover. There's got to be  deciduous vegetation.  They certainly favour poplars.  They will use alder and birch, but don't ever seem to  really get large numbers in areas where those are the  only deciduous shrubs available.  They primarily use  poplars, especially the quaking aspen and willow, and  a variety of other green plant foods like lily-pads,  and they'll even go onshore in the summertime and eat  fireweed and grasses and things like that.  I'd like to refer you to a part of the map at I  think it says Meszah Peak.  It's on the left-hand  side.  It's this large green peak.  A  MR. GRANT 9465  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  D.F. Hatler (for Plaintiffs)  In chief by Mr. Grant  THE  MR.  COURT  GRANT  Q  A  What's it called?  Meszah, M-e-s-z-a-h, and it's --  That's the height of land.  Those are the peaks on  what is known as the Level Mountain Range.  Okay.  And have you travelled there yourself?  I earlier mentioned my studies on caribou on Level  Mountain and that was where I was camped for those  during the caribou calving season in those years that  I mentioned.  I'm sorry, but my tired old eyes can't read that,  nor can my glasses.  Can you spell that for me?  WITNESS:   M-e-s-z-a-h.  COURT:  Thank you.  GRANT:  Q  A  Q  A  THE COURT  THE  THE  MR.  Peak, and it's known as the Level Mountain?  That's just one of the peaks and it's -- it may be the  only named peak in the Level Mountain Range.  Q   And did you see beavers in that area outside of the  area that's marked in brown on the map?  A   There were -- there was evidence of beaver activity,  at least old beaver activity, on most of the streams  in that area, but again, these were areas that were  not highly suited for beaver and there was one small  colony on the north-west side of the valley. That's  the only one that I ever saw that was active, but  there were signs of old dams and old lodges on many of  the streams up on the Level Mountain Plateau.  MR. GRANT:   Can you just put an "X" in the area of the active  colony just to approximate it with an "X" in red?  That's just for the record.  THE COURT:  And you said that's where the active colony was or  the remains or signs of an active colony were?  THE WITNESS:   Yes, there was a small colony there at the time  that I was there in the late 70's. I remember it  because I was quite surprised to see it.  THE COURT:  But no beavers present at that time?  THE WITNESS:   I think that there was at that time.  THE COURT:  You didn't see them?  THE WITNESS:   But they didn't have any prospects for long-term  prosperity there, that's for sure.  They probably  weren't there the next year.  MR.  GRANT:  Q  And you know often you see a beaver lodge or the signs  of a beaver lodge that looks like it's been -- it no  longer is inhabited.  Would this only occur as a  result of say trapping? 9466  D.F. Hatler (for Plaintiffs)  In chief by Mr. Grant  1 A   The beaver colonies have a very distinct life cycle.  2 The colony itself, and it depends a little bit on the  3 vegetation or the state of the vegetation when they  4 start, but assuming that a pair of beavers moves into  5 and establishes a colony in an area of say untouched  6 poplar -- I'm going to back up for just a minute.  7 This is the pattern that in a colony of beavers you  8 will -- you'll usually have two or three generations  9 of beavers occupying that colony.  You have an adult  10 pair and you'll have their young of the previous year,  11 usually not numbering more than four, and you may have  12 then a second generation from that year, the kits, the  13 sub-adults, and the adults, totalling maybe at the  14 most 10 to 12 animals.  That's sort of a large colony.  15 Often you'll only have two generations, the adults and  16 the kits from the previous year.  But it's common for  17 the young ones, for the sub-adults, to disperse out to  18 other areas, probably social pressures or maybe  19 teenagers, they just want to go.  I don't know.  But  20 the young ones are the dispersal of population and  21 they're the ones that you see setting up housekeeping  22 in places where they shouldn't be.  Those ones don't  23 survive.  24 Some of them find a good area like a nice virgin  25 poplar stand somewhere that perhaps there were beavers  26 there 50 years ago, but they're not now.  They will  27 establish a colony, they'll raise young, and go  28 through that same pattern of usually there being two  29 or three generations there at any one time, but they,  30 by their activities, use up their habitat.  Their dams  31 tend to back up the water, flood out the poplars  32 before they get a chance to eat it all.  They will cut  33 down a bunch of poplars and not be able to haul it all  34 back to the lodge.  They store -- they store the  35 cuttings for winter.  So that an unexploited  36 population of beavers, if there's no predation by  37 humans or elsewhere, will still die out on its own  38 because their -- their pattern of using their habitat  39 tends towards overexploitation.  So it's common to  40 see, even in areas where there are no people, to see  41 dead colonies; old colony sites.  42 Many of the meadows that you see, the grasslands  43 and sedge land meadows that you see, interspersed  44 throughout the forested areas are actually old beaver  45 colony sites.  The dam is still in place, if you look  46 carefully.  The beavers died out.  Silt and everything  47 coming down the stream gradually filled it in and then 9467  D.F. Hatler (for Plaintiffs)  In chief by Mr. Grant  1 it's come into a wet meadow site and they provide a  2 break in the normal -- what other vegetation would be  3 there, so that they actually provide habitat for a lot  4 of other species at various stages of the colony even  5 at the dead colony site.  6 Q   There is some indication in the historical material  7 that -- of opinions by, for example, the B.C. Land  8 Surveyors, that batch of material that you referred  9 to, that -- in fact on page 59 you say that:  "Moncton  10 said the beavers had been present formerly, but he  11 believed that they had been 'ruthlessly trapped to the  12 point of extinction.'"  13 Is there any -- and then you've indicated that  14 there were restrictions on beaver trapping at  15 different times.  Does this have anything to do with  16 this life cycle that you're talking about and the  17 knowledge at that time of that life cycle?  18 A  Well, I don't know what -- I don't think it was fully  19 taken into consideration.  There also is the certainty  20 that beavers, by their conspicuous activities around  21 their site, the dam, and the lodge, and the cuttings  22 are quite conspicuous, so a person trapping can find  23 that location.  And they're not mental giants either,  24 so that you can usually catch most of them as well,  25 if you want to do that.  So that there is that  26 precedent.  It can happen, but I think that in many  27 cases it has been assumed that that's the only thing  28 that will end the colony's life and I just was making  29 that point that that's not true; that it has a limited  30 life regardless, and in fact if it is trapped without  31 being trapped to extinction, it will last longer than  32 if it is allowed to just do its own thing.  33 Q   And you conclude with respect to the beaver that  34 "There's no reason to suspect...", and I'm quoting  35 from page 60 of your report.  36  37 "There is no reason to suspect that the  38 distribution of beavers at European contact  39 differed substantially from that today, i.e.  40 in suitable habitats."  41  42 This is shown on the map and that's your opinion  43 regarding their distribution?  44 A   That's right.  And that's maintained by that dispersal  45 tendency which -- there just seems to be beaver  46 showing up in new areas all the time.  There's always  47 a surplus of floaters out there that are looking for 946?  D.F. Hatler (for Plaintiffs)  In chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  A  THE COURT  MR. GRANT  Q  A  Q  A  suitable areas and, as I said, often temporarily  setting up lodges or whatnot in areas where they can't  really survive.  I'd like you to refer to map 17, and this is the  snowshoe hare, known in Gitksan as gax, g-a-x, and  once again you use the same colour coding on this map,  dark brown being common and the other being present,  mostly low density.  Now, with respect to the snowshoe hare, can you  explain anything about -- peculiar or different about  its cycle in terms of how it -- I guess you'd say on  its ecology, in terms of how it survives and how it  produces?  The major feature of snowshoe hare biology is the  10-year population cycle which has been well  documented.  It doesn't mean that it rigidly is stuck  to exactly a 10-year frequency, but on the average  it's around 10 years -- sometimes it's eight,  sometimes it's nine -- where the population builds up  to high numbers, then crashes fairly abruptly to very  low numbers and then builds up again.  The prevailing  hypothesis on the cause is that it's a nutrition  related thing that essentially the hares eat  themselves out of house and home and then must crash.  And it takes a while for the system to build back up  again.  The difficulty in assessing records of hare  occurrence and absence lies in the fact that when they  are at low numbers, they can be very very low and very  inconspicuous, so that trying to interpret the  difference between absence and just low density can be  very difficult.  Mostly the areas that I've indicated  as high density are in the particular kind of general  vegetation cover that I know hares are abundant in and  that the boreal forest, which is most of this area to  the north, corresponds to the boundaries of boreal  forests and defined primarily by forest service  research people.  :  I'm sorry, that word?  Boreal.  Boreal forest.  B-o-r-e-a-1.  What is meant by boreal forest?  It's a descriptive term and it refers to a particular  composition of trees, primarily the spruces and  poplars, but the actual application of the term boreal  I -- it refers to that northern forest, that 9469  D.F. Hatler (for Plaintiffs)  In chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  Q  A  MR.  THE  THE  THE  THE  THE  THE  THE  THE  THE  THE  A  GRANT  COURT  THE  MR.  THE  particular component of forest.  Which has those species that you're talking about,  that type of species?  Yes, those are some of the featured species, but  there's a whole combination of topographical and  climatic and vegetation components.  Then the other one to the south is primarily in  the Cariboo aspen, douglas fir type biogeoclimatic  zone, where again you have a mixture of deciduous and  conifer types rather than a strict primarily conifer  cover.  The hares don't seem to do as well in areas  that are primarily conifer.  So it's those mixed  forest types where they do best.  When you say the area to the south, that's the area  that surrounds Babine Lake?  That's right.  Yes.  Okay.  You said caribou.  In that context you mean caribou  animal country, you didn't mean the Cariboo geographic  region?  WITNESS:   I was talking about the -- that biogeoclimatic  zone is Cariboo, b-o-o, and it refers to that part of  the province, the Cariboo --  COURT:  Oh, I see.  WITNESS: — area.  Yes.  COURT:  I thought you were a little north of the Cariboo  there.  WITNESS:   It is.  COURT:  I wouldn't have —  WITNESS:   It is, but that biogeoclimatic zone extends up  into that area.  COURT:  I see.  You would call —  WITNESS:   And there are some -- and this is also part of  the sub-boreal spruce, which is similar to the boreal.  You're correct that the Cariboo aspen probably stops  around Francois Lake or a little bit farther north  than that.  But you've got this area extending up well north of  the Takla Lake.  You would still call that --  WITNESS:   That's sub-boreal spruce in there.  COURT:  But would you call it part of the Cariboo climatic  zone?  WITNESS:   No.  No.  GRANT:  Q   And it encompasses the Bear Lake area as well?  A   Yes.  COURT:  Does it?  Let's see.  THE COURT  THE  THE 9470  D.F. Hatler (for Plaintiffs)  In chief by Mr. Grant  1 MR. GRANT  2 THE COURT  3 MR. GRANT  4 THE COURT  Now, what is the economics --  Yes.  Sorry, my lord?  Well, I missed -- I'm not sure that I'm -- I have  5 precisely what the -- what the doctor is saying.  6 Looking at the map you've got an abundant area around  7 Babine Lake?  8 THE WITNESS:   Uh-huh.  9 THE COURT:  To the south there's another abundant area which  10 seems to be bisected in a north/south access by the  11 Chilcotin River?  12 THE WITNESS:   Uh-huh.  13 THE COURT: Was it that southernmost area that you referred to as  14 the Cariboo climatic zone?  15 THE WITNESS:  The southernmost area would be in that Cariboo  16 zone, but it also extends up into the Francois Lake  17 area, perhaps discontinuously.  I'd maybe have to look  18 at the vegetation map to be sure why I mapped it  19 exactly like that, but it was based on the vegetation  20 components and I suspect that a lot of this area  21 around the Chilcotin country there is uniform, fairly  22 old pine, and it's not as rich as the more mixed  23 types.  24 THE COURT:  All right.  Thank you.  25 THE WITNESS:   It's a large pine forest.  2 6 MR. GRANT:  27 Q   What is the economics of the snowshoe hare, in other  28 words, is it -- for wildlife management is it a  29 certain economically important species?  30 A  As I may have indicated earlier, it's not a priority  31 species in the sense that anybody has really paid much  32 attention to it, other than it's been of some interest  33 to Ministry of Forests because they tend to eat some  34 of the small conifers that are planted, particularly  35 young pines and young firs there.  Their depredations  36 on those have caused some concerns so there's been  37 some studies to try to figure out what to do about  38 that and -- but from the standpoint of the wildlife  39 manager, the snowshoe hare is kind of the base of the  40 food chain for many of the most important furbearers,  41 lynx and fisher being two good examples.  The lynx  42 itself has a classic cycle which follows that of the  43 hare and it's been a source of interest to  44 particularly biomathematical type people for many  45 years.  46 Q   So this snowshoe hare, when you say in terms of  47 economics it's not a priority of wildlife managers, 9471  D.F. Hatler (for Plaintiffs)  In chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  Q  A  THE COURT  MR. GRANT  Q  you mean from the perspective of the priorities of,  for example, the Fish and Wildlife Branch or --  A   Yes, it hasn't been because there's so many other  species that were clearly more in demand and more  vulnerable and more manageable.  The cycle of the hare  happens regardless of what you do.  Q   What anyone does.  A   But in my lynx -- lynx reports I urged that more  consideration to hare biology be given.  If they're  really interested in managing lynx, they have -- they  can't do that without managing hares.  Q   Was there reference --  A  Without considering hares.  Q   Was there reference to utilization of snowshoe hares  in the historical material that you referred to?  A   References to utilization?  Q   To use of the snowshoe hare for food?  A   Yes.  I know that there were a few.  You know, it's a  common species to -- when they're at high numbers,  they're quite easy to snare, and that's been a common  practise for people in the bush everywhere throughout  history, but when they're not abundant, you might as  well forget it.  Have you snared snowshoe hares yourself?  Yes.  Hasn't everyone?  I'll refer you to the next map, which is map 18 and  it's a map of the black bear.  Now, this map and map  19 both certainly encompass -- either common to  abundant or presently, mostly low density covers the  entire area.  Can you explain why, unlike some of the  other maps, you have effectively blanketed the study  region for the bear?  A  Well, that is an accurate depiction of their  distribution.  They occur everywhere.  Individual  bears have very large ranges relative to many other  species and quite distinct ranges so that if you  over -- there's probably no areas within the map area  that doesn't belong to some bear somewhere.  That's  basically what we're talking about here and --  Q   That they have a territorial occupation zone?  A   Yes.  Q   And this would apply to both the black bear and the  grizzly bear?  A   Yes.  Q   Now, in your report, Exhibit 795, you deal with both 9472  D.F. Hatler (for Plaintiffs)  In chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  A  Q  A  Q  A  Q  A  Q  A  MR. GRANT  THE COURT  MR. GRANT  Q  the black bears and the grizzly bears together, and in  your mapping of course you deal with them separately.  Can you explain why you deal with them together in  your report?  There were a couple of reasons.  One was that some --  some of the sources that I referred to, some of the  historic sources, talked about bears without  specifying which species.  Some of the sources implied  that they thought they were seeing one species when  they might have been seeing another, but -- so that  there was that problem, but primarily it was because  in discussing the similarities and the differences of  the two, it's best to discuss them together.  And if you --  It just was the most practical way of doing it and  efficient way of doing it.  And you've done studies of the black bear?  I studied black bears for my master's degree.  Now, I'd like to show you Exhibit 349, which madam  registrar has a pull-out, and I will connect it for  you.  Now, this is a map of -- that's been introduced  through another witness of certain of the territories,  but to locate you it's in this western jutting out  approximately and, as I say, this black line on  Exhibit 358 - 18 is an approximation of the territory  being dealt with here.  But this is a jutting out of  that area, and it includes at the far left of the  Exhibit 349 a name called Dam Gitaxsol.  That name --  that lake is the lake that you see just underneath  that corner, the north-west corner of that western jut  of the territory called Sand Lake.  Do you know --  have you heard of Sand Lake which is north of Kitsum  Kalum Lake?  Yes, near Kitsum Kalum, yes, I know the area.  And then Kitsum Kalum Lake is down here on the bottom?  I see.  Just so you can locate yourself.  That's Kitsum Kalum?  Yes. And Sand Lake is there.  Now, evidence was given if you can -- with respect  to Dam Gitaxsol about in this area and there's a  dotted line in here and you see a place called --  there's triangles, like one is -- there's the name  Cedarvale and there's a trail that goes up and there's  a triangle there where the "L" is on Exhibit 349, and  that there were bear dens, and that gisak loot, and 9473  D.F. Hatler (for Plaintiffs)  In chief by Mr. Grant  1 going down that there were bear dens in this area.  2 Now, can you -- from your experience in the field,  3 would that be -- and knowing the terrain, is that  4 consistent with areas that grizzly bears or that bears  5 would inhabit?  6 A   Did you say they are grizzly bears or black bears?  7 Q   I'm sorry, I'm not going to say which one because I  8 can't recall and I don't want to mislead you, but  9 there were bear dens is what I was --  10 A   Generally speaking, grizzly bears are -- more  11 frequently will den in high elevation areas, or at  12 least, maybe I should say it this way, they are more  13 likely to be seen if they're in high elevation areas.  14 I'm aware of some cases where grizzly bears were found  15 denning under trees and under the hollows under trees,  16 the same places that often you'll find black bears, so  17 that both will den in similar situations, but I  18 wouldn't be able to tell you which this would likely  19 be.  It could be either.  20 Q   But —  21 A   But there's no reason, you know, obviously there have  22 to be dens throughout the area for the number of bears  23 that are involved.  24 Q   Okay.  Maybe that's the other question I should ask  25 you is what, and given the wide range you have here,  26 do you have any sense of the number of bears that  27 would be or that -- studies that you've done, or of  28 the number of bears that would be in this region of a  29 grizzly bear or black bear?  30 A   Not on a -- not on the whole scale area.  I can tell  31 you one number that I remember is because there was a  32 bit of a controversy at one time when I was the  33 regional biologist, that people felt that because  34 grizzly were rare there should be no hunting allowed  35 right in the vicinity of Smithers, for instance, and  36 the two or three management units there, management  37 unit 69, which is a huge area, and so on, there  38 were -- there was an average of about one or two taken  39 a year, but just by reports and my own observations of  40 different individual bears, I could document a minimum  41 of 19 within a 20-mile radius of Smithers, grizzly  42 bears.  43 Q   Grizzly bears.  44 A   So that that's just the number that we knew about and  45 that we knew were different, saw with three cubs and a  46 dark boar, and this kind of thing, by -- by reports of  47 colour combinations and sizes you could kind of 9474  D.F. Hatler (for Plaintiffs)  In chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  MR.  THE  MR.  estimate that number of -- minimum number of  individuals.  And I frequently in the summertime go  bear watching out around home where I live east of  Smithers.  There is some areas there that we just go  out in the evening and visit some of the raspberry  patches and just watch the bears.  And there's one  area that -- my local name for it is "Eight Bear Hill"  for the reason that there were eight bears there one  night.  So there are a fairly large number.  Would those be blacks or grizzlies?  Those were black bears.  And that's in the area -- you live in the area of  Quick, which is shown on the map, don't you?  That  would be --  That's right.  Area of -- I'm sorry?  It's called Quick, my lord, just there's Smithers  and then there's Quick if you see on the highway line.  Yes.  Just south of the highway.  Can you refer over to the last map, 19 --  I'm sorry, before you leave that, what can you  suggest, if it's known, about the bear population of  this area, whether it's static, increasing,  decreasing, or what, if it's known?  WITNESS:   There's not really a good basis for saying, but I  certainly wouldn't say it's decreasing.  Stable or  increasing.  Q  A  Q  A  COURT:  GRANT:  COURT:  GRANT:  THE COURT  THE  MR.  GRANT:  Q  A  Have you -- you talked about, for example, with the  increased forestry and logging, what the effect of  that is in terms of habitat for moose.  What about  that for bears?  Does that impact on bear habitat  adversely or beneficially or is it neutral?  Generally speaking, I think it benefits black bears.  That's been my observation, that they do not have very  many food sources in the coniferous forest itself, and  most logging occurs in the conifers.  With the removal  of the conifer cover you get -- you get an increase of  some of the green vegetation such as horse-tails,  Equisetum, and dandelions, both of which they eat a  lot of in the early part of the summertime.  And you  also get an increase in berries, particularly  raspberries, and if it -- well, later on in some areas  you will get huckleberries, but primarily raspberries  and rosehips grow well in these logging clear-cuts,  and the black bears do quite well on those.  They're 9475  D.F. Hatler (for Plaintiffs)  In chief by Mr. Grant  1 not -- we're not concerned about winter habitat for  2 bears because they go find their own place and go to  3 bed, so that basically it's good for them and they  4 never are -- usually don't get all that far from  5 cover.  They're forest bears and so they do use the  6 openings, but they, at least in daylight, tend to be  7 near the edge and not terribly vulnerable to hunting.  8 Certainly with the numbers that are around, you can do  9 well on bears, but a lot of them do slip away into the  10 woods is what I'm saying, and the food production in  11 the clear-cuts is good.  12 On the question of population trends I guess,  13 referring to black bears particularly, right in some  14 local areas last year I'm sure that there was a  15 decline and that was because there seemed to have been  16 a berry failure and the bears congregated to food  17 sources such as oat fields around Smithers and  18 Hazelton and some of those areas and many were shot by  19 land-owners, large numbers.  So there was this  20 congregating effect to a fall food shortage, but --  21 and I've seen that this year too.  My bear watching  22 has not been nearly as fruitful in past summers, but  23 they'll come back fairly quickly.  They've done that  24 in the past as well.  Just a local phenomenon.  25 THE COURT:  What caused the berry failure?  Is it known?  26 THE WITNESS:   I think it was fairly cold spring conditions  27 that -- there was a couple of freezes when the berries  28 were in flower and that can -- can lead to a pretty  29 bad year for particularly the huckleberries.  30 THE COURT:  Thank you.  Mr. Grant, do you want to finish map 19  31 or --  32 MR. GRANT:  Well, maybe, given the time, rather than just trying  33 to squeeze it in a few minutes, I'll just deal with it  34 tomorrow morning.  It's obvious that we're going to be  35 here tomorrow in any event.  36 THE COURT:  All right.  Then we will adjourn until ten o'clock.  37 THE REGISTRAR: Order in court. Court will adjourn until ten a.m.  38  39  40  41  42  43  44  45  46  47 (PROCEEDINGS ADJOURNED TO 10:00 a.m. NOVEMBER 10, 1988) 9476  D.F. Hatler (for Plaintiffs)  In chief by Mr. Grant  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  I hereby certify the foregoing to  be a true and accurate transcript  of the proceedings herein to the  best of my skill and ability.  Tanita S. French


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