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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1988-10-26] British Columbia. Supreme Court Oct 26, 1988

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 9033  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 October 26, 1988  2 Vancouver, B.C.  3  4 (PROCEEDINGS RECONVENED AT 9:15 a.m.)  5  6 THE REGISTRAR:  Order in court.  In the Supreme Court of British  7 Columbia, Vancouver, this Wednesday, October 26th,  8 1988, in the matter of Delgamuukw versus Her Majesty  9 the Queen at bar, my lord.  10 I caution the witness, you are still under oath.  11 THE WITNESS:  Thank you.  12 THE COURT:  I'm sorry that I don't keep my calendar and my  13 memory together in the same place, and I regret to say  14 that I have to adjourn for a few minutes at quarter to  15 ten as well for a matter that I can deal with -- that  16 I have to deal with at quarter to ten, but it will  17 take less than 15 minutes.  18 MR. RUSH:  Thank you.  My lord, I wish to proceed with the notes  19 that were the subject matter of discussion yesterday  20 afternoon.  21 THE COURT:  All right.  I don't have them, do I?  22 MR. RUSH:  No, you don't.  2 3 THE COURT:  Thank you.  24  2 5 RE-EXAMINATION CONT. BY MR. RUSH:  26 Q   Now Mr. Sterritt, I would just like you to keep the  27 blue binder there and I'm showing you handwritten  28 notes which are numbered in the upper right-hand  29 corner, numbers 21 to -- through to 36.  Do you  30 recognize these?  31 A   Yes, I do.  32 Q   Are these in your handwriting?  33 A   Yes, they are.  34 Q   And there are dates, I believe, on these notes.  Well,  35 I don't see a date on the first note, Mr. Sterritt.  36 Can you tell his lordship when the notes were written?  37 A   They were written either on the same day or on  38 subsequent days to the notes that were numbered 1 to  39 20, which we couldn't determine whether it was  40 September the 28th, 1986 or September 23rd, 1986.  41 Q   All right.  I just ask you to look at page 26, if you  42 will?  43 A   Yes.  44 Q   And there is a name on the left-hand side, William  45 Charlie, and a date September 24th, 1986.  Does that  46 help determine the date?  47 A   Yes.  That would be -- make the notes from 1 to 25 9034  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR.  MR. RUSH  MR.  being the 23rd of September, 1986.  Q   Okay.  Just ask you to look at the first page which in  the upper left-hand corner says "Tape 3", and then it  says "at 7:30 p.m.".  Again, down on the left-hand  side there is a name, William Charlie, and can you  indicate to the court whether what follows is  attributed to -- notes attributed to William George?  A   Yes, they are.  GOLDIE:  My lord, I wonder if my friend is prepared to  indicate the basis upon which this examination is  proceeding?  Well, I thought I had done so yesterday and I thought  that was the point of the argument yesterday, but  the -- the basis upon which the examination is  proceeding is to fill out -- or to give all of the  notes and to include all of the discussion that Mr.  Sterritt recorded at the time of the interviews on  September the 23rd and 24th, I believe, and about  which Mr. Goldie cross-examined in relation to notes 1  to 20, and these are the balance of the notes, notes  21 to 36, and that's the basis for the  cross-examination -- excuse me, the re-examination.  GOLDIE:  If the submission is that these notes are  connected, then the objection should have been taken  on my cross-examination.  If my friend wishes to  submit that these are connected and that the other  notes are unintelligible or require to be placed in  the same context as these, that -- the time for that  should have been during my cross-examination.  In my  submission, my friend is not entitled to put these  forward at this time unless he says on their plain  reading, without the need of any assistance from the  witness, other than the identification, they are  connected and part of a context.  And if that's your  lordship's ruling, that does not entitle them to  examine on the notes.  MR. RUSH:  Well, I thought your lordship had disposed of this  yesterday, and the argument I made yesterday was that  they were connected, they were part of a sequence of 1  to 36 and you made your ruling on that.  COURT:  Is my ruling here?  GOLDIE:  Yes, it is.  It's page 8972, my lord.  COURT:  I'm sorry?  GOLDIE:  Page 8972 of volume 142.  COURT:  I thought I made my ruling late in the day.  GOLDIE:  Well —  RUSH:  You did.  It's at 9024, my lord, and I recognize it  THE  MR.  THE  MR.  THE  MR.  MR. 9035  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 by the dubitante that you made reference to at line  2 ten.  I'm sorry, that's not it.  It starts at 24, line  3 24 on 9023.  4 THE COURT:  9 023?  5 MR. RUSH:  9023, line 24.  6 MR. GOLDIE:  Well, the reason that I referred to the matter was  7 that I understood that your lordship indicated that if  8 my friend proceeded upon an examination in chief which  9 was what he was doing, that the matter would be open  10 to me to cross-examine on that.  Your lordship said at  11 the top of the page:  "-- this is your witness, and  12 he's under, in effect, examination in chief."  And I  13 took it from that that your lordship was not giving my  14 friend the right to examine him unless I had the right  15 to cross-examine him.  16 THE COURT:  Well, I'm not sure, Mr. Goldie.  I really — what I  17 really intended to say, and I thought I had said it,  18 was that I think I should allow Mr. Rush to re-examine  19 notwithstanding the fact that he had touched upon this  20 subject in chief, because of the possible dual issue  21 problem that I mentioned.  And it was my intention to  22 rule that Mr. Rush could re-examine, but I then went  23 on to say that I thought in the usual course of  24 events, on re-examination he would only be entitled to  25 use the notes if the witness required them to refresh  26 his memory.  Then you, Mr. Goldie, said at line 7 of  27 page 9024, that:  28  29 "In for a penny, in for a pound.  If it would keep  30 things short, if he put the notes to him and we  31 knew what they were."  32  33 That being so, it seems to me that unless you  34 withdraw that concession -- I think it is a  35 concession, or it seemed to be, I suppose -- Mr. Rush  36 at this point is entitled to ask the witness  37 nonleading questions about matters in his notes.  38 MR. GOLDIE:  Well, I'm not going to withdraw the concession.  I  39 was influenced by the fact that your lordship said  40 this is an examination in chief, and it seemed to me  41 that it would inevitably lead to the notes if the  42 witness was asked, "What is your recollection," and  43 gave a recollection and that exhausted his  44 recollection, and then my friend would then go to, "Do  45 you not recall such and such," and then inevitably we  46 would get to the notes.  47 THE COURT:  I can understand why you might have that view, Mr. 9036  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR.  THE  Goldie, because of what I mentioned at lines one and  two when I mentioned to Mr. Rush, "this is your  witness, and he's under, in effect, examination in  chief."  That is, the rules for examination -- for  re-examination are the same as they are for  examination-in-chief.  I wasn't intending to reopen  Mr. Rush's examination-in-chief, he didn't ask me to  do that, and my view is that he is now re-examining.  GOLDIE:  Well, if that is your lordship's ruling, I will not  withdraw the concession.  COURT:  Yes, all right.  Then it seems to me, Mr. Rush, that  you are free to re-examine the witness as you would  under the ordinary rules of re-examination, although  your friend has said that he won't object if the notes  are filed.  MR.  RUSH:  Q  A  THE  THE  MR.  A  Q  COURT:  WITNESS  RUSH:  Q  Yes, I understand that, I understand that.  Mr. Sterritt, I wanted to direct your attention  to page 26, please.  The upper right-hand corner, it's  dated September 24th, 1986, and then the left side  it's William Charlie.  Can you tell me whether or not  what follows are notes that you took of a discussion  with William Charlie?  Yes.  From page 26 to page 29 are notes of discussions  with William Charlie.  All right.  And again, I would refer you to page 30 in  the left side, there is a name, Peter Abraham.  Now,  is what follows notes that you took during the course  of a discussion with Mr. Abraham?  Yes.  From pages 30 to 33.  All right.  Abraham's first name is Peter?  Sorry,  Yes.  Mr.  MR.  MR.  THE  THE  And page 34, there is on the left side, notes of the  name of Joe Bob?  A   Yes.  From page 34 to page 36.  Q   Now, Mr. Sterritt, I wanted to ask you, you replied to  a question that was put to you by Mr. Goldie about  William Charlie, and you indicated that his father,  namely William Charlie's father, was Bear Lake  Charlie, and you replied to that, "Yes."  GOLDIE:  Do you have the transcript reference?  RUSH:  I don't.  I'm going by my notes.  COURT:  Let's be sure that is accepted.  Is it that William  Charlie was the son of Bear Lake Charlie?  WITNESS:  Yes. 9037  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 MR. RUSH:  2 Q   And I just -- I want to refer you to page 27, Mr.  3 Sterritt.  And is there a reference on page 27 to Bear  4 Lake Charlie?  5 A   Yes, there is.  There is just below what looks like  6 the first paragraph on the page, there is a horizontal  7 line and the vertical line dividing the page into two  8 parts, and on the right-hand side is the initials FA  9 for father.  10 Q   Yes?  11 A  And then under that is the name Bear Lake Charlie, and  12 that would refer to the father of William Charlie.  13 Q   All right.  And on the left-hand side there are the  14 words MO?  15 A   Yes.  16 Q   Does that stand for mother?  17 A   Yes.  18 Q   And is the mother the name there, Selena Jim?  19 A   Yes.  20 Q   And does -- does it indicate anywhere there what her  21 house is?  22 A   Yes.  Going down about 4 lines, there is an indication  23 of -- there is written Wilp Spookw, W-I-L-P space  24 S-P-O-O-K-W.  That means the House of Spookw.  25 Q   Is that a Gitksan house?  26 A   Yes, it is.  27 THE COURT:  Wilp means house?  28 THE WITNESS:  Yes, it does.  29 MR. RUSH:  Thank you.  That's all I wish to ask Mr. Sterritt.  I  30 would like those to be filed as the next exhibit.  31 THE COURT:  All right.  Can those pages be added as part of tab  32 23 but with the special notation that tab 23 from  33 pages 21 to 36 have been added during this  34 re-examination under the terms that I've described?  35 MR. RUSH:  Yes.  Perhaps there is some separate way of  36 identifying them so --  37 MR. GOLDIE:  I think they ought to be marked as a separate  38 exhibit, my lord.  39 THE COURT:  All right.  40 MR. GOLDIE:  They are not tendered by me.  41 THE COURT:  Yes.  42 MR. RUSH:  I'm content with that.  43 THE COURT:  All right.  They can be the next exhibit then.  44 THE REGISTRAR:  The next exhibit number is 776.  45  46 (EXHIBIT 776 - Continuation of Notes of Mr. Sterritt  47 at Tab 23, pages 21 to 36) 903?  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 MR. RUSH:  2 Q   Thank you very much.  3 Now, I'm going to be referring Mr. Sterritt to  4 some passages that had -- his attention was directed  5 to in the large blue binder.  I would first like to  6 ask him about tab 1, first divider -- I'm sorry, I'm  7 not going to ask him about that.  It will be the  8 second divider at tab 1.  Do you have that, Mr.  9 Sterritt, it's the notes of a trip to Kalum Valley,  10 January 23rd, 1988?  11 A   Yes, I do.  12 THE COURT:  Where?  13 MR. RUSH:  It's the second divider, my lord.  14 THE COURT:  In tab 1?  15 MR. RUSH:  In tab 1, yes.  16 THE COURT:  Yes.  That's 774-1B, capital B.  17 MR. RUSH:  18 Q   All right.  At the second line from the bottom on the  19 face page, Mr. Sterritt, there are the words that  20 appear to be "Aaxswit is Yal's," A-A-X-S-W-I-T is  21 Yal's.  22 A   Yes.  23 Q   What is the reference Aaxswit?  24 A   That's the —  25 Q   What does that refer to?  26 A   That refers to the mountain area on the south side of  27 Sidan Creek, which is west of Kitwangak.  28 Q   Is there another spelling for that or is there a  29 different spelling that -- that you know it by?  30 A   That's the same area that we discussed last week  31 and -- I think two weeks ago.  Pardon me, two weeks  32 ago, which also was spelled A-A-X-S-G-W-I-T, I think,  33 that is the same mountain area.  34 THE COURT:  How did you spell it the second time, A-A-X?  35 THE WITNESS:  A-A-X-S-G-W-I-T, as I recall.  3 6 MR. RUSH:  37 Q   All right.  And during the course of the reading in of  38 certain discovery questions, a question was read to  39 you which is at page 431 of volume 4, which is  40 question 1904, and at that time, the question that was  41 put was this:  42  43 1904  Q  "Is there an English name for that?  44 A  Xsiskahawakat An Lex Maawxs on the map  45 would be part of the Stenstrom River  46 (indicating) and the mountain Aaxswit is  47 Yal's and there is a creek, Jee' Iss and 9039  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  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. RUSH:  Q  A  Q  A  Q  A  THE COURT  MR. RUSH:  Q  A  Q  A  this is -- and there is a couple of small  areas on the other side, but basically  that would be Yal's territory."  Now, I may have got the --  What was the question again, please, Mr.  question number?  Rush, the  The question was 1904.  Now, Mr. Sterritt, I'm just referring you to that  Xsiskahawakat and I'm asking you in particular to look  at the reference there and the mountain Aaxswit is  Yal's.  Do you see that?  Yes, I do.  Now, what can you say about the reference in that  question and the reference in the notes of January  23rd, 1988, trip to Kalum Valley where there is a  reference to "Aaxswit is Yal's"?  Well, to place this, the sketch on the page for number  one dated January 23rd, 1988, is looking west from Art  Matthew Junior's house in Kitwangak.  And while we  were doing that, he and his father pointed out  Aaxswit, the mountain, A-A-X-S-W-I-T.  That mountain  is the same mountain referred to in the -- in the  sentence read from the examination for discovery.  All right.  For the reporter, the places that were referred to  were Xsiskahawakat, X-S-I-S-K-A-H-A-W-A-K-A-T, and  An Lex Maawxs, A-N, L-E-X, M-A-A-W-X-S, and that's the  Stenstrom Creek, S-T-E-N-S-T-R-O-M.  All right.  The next reference, my lord, is again at  tab 1, and this is the fifth divider, really just have  to count forward, and it is the March 9th, 1976 note  in reference to a territory Geel.  :  That's Exhibit 774-1F.  Thank you.  You were asked about the reference there,  Mr. Sterritt, "used to belong to Stikine, a lot of  names are Stikine."  And my question is, are you aware  of the time reference that is contemplated by that  statement?  That is a long time ago, hundreds of years.  And how do you know that?  From the history that was told to me by Martha Brown  where she described that this happened in the -- that  the Xsiisxw, X-S-I-I-S-X-W, that took place, happened  in the time of the childhood of a former Kliiyem lax 9040  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  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.  COURT  RUSH:  Q  A  THE  THE  THE  MR.  THE  MR.  THE  A  COURT:  WITNESS:  haa known as Paul Kliiyem lax haa, and he was born at  the turn of the century of 1800, sometime after that.  It was in the time of his childhood.  All right, thank you.  The next entry I would like to refer to Mr.  Sterritt is on my count the 9th divider, it is with  reference to Philip Turner 14/03/88.  :  That's 1J.  Thank you, my lord.  Now, you were asked a question  about this, Mr. Sterritt, and my note is that you said  that he, meaning Philip Turner, is talking in the  past, and my question is what -- again, what is the  time frame that you understood Mr. Turner to be  talking about?  A long time ago and I would say in the term of  hundreds of years.  Now, the next reference is at -- Mr. Sterritt, just  before I leave that --  I can't find where that is in the tab, I didn't --  :  Oh, it's —  Is it tab 9?  COURT:  Tab 9, yes.  RUSH:  No, it's not tab 9, it's the divider.  COURT:  No, tab 1, and if you go —  RUSH:  I'm just talking dividers here.  COURT:  The third tab from the back, the third divider from  the back.  Wait a minute, Mr. Rush, are we looking at  the same thing?  There are two -- one says Philip  Turner and the other says Philip Turner and 4 other  names.  Which one are we looking at?  MR. RUSH:  My lord, if I can take us back to the previous entry,  this is the Philip Turner dated 14/03/88, and as you  pointed out, it's J.  That's J, yes.  Now, just before I leave that, Mr. Sterritt, you've  indicated what you understood the time period to be  talked about by Mr. Turner, and my -- my question is,  is this -- how did you understand that?  Is that  something that Mr. Turner advised you about or did you  know it from another source?  A   Because of the reference to Luut Geiss, that's  L-U-U-T, G-E-I-S-S, which is also part of the Nekt,  N-E-K-T, history, which led to the fortifications at  Dawdjap, D-A-W-D-J-A-P, which is called Battle Hill —  MR. GOLDIE:  My lord, I repeat my objection, my lord, to this  THE  MR.  COURT  RUSH:  Q 9041  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 witness giving history.  He stated on his  2 cross-examination and on his examination for discovery  3 that he was ignorant of history.  4 MR. RUSH:  5 Q   Well, that again is a point of -- bone of contention  6 between my learned friend and I, but neither do I want  7 the witness to go into the explanation that he is  8 giving.  9 Mr. Sterritt, if you can -- my question simply  10 was, how is it that you came to understand the time  11 frame that you indicated and --  12 A   Because of that reference, which indicates events  13 about two or 300 years ago.  14 Q   All right.  15 THE COURT:  Is Philip Turner alive or dead?  16 THE WITNESS:  Alive.  17 MR. RUSH:  18 Q   All right.  Now, Mr. Sterritt, if you'll just advance  19 in the dividers, not the tabs, and this is two  20 dividers forward, on January the 19th, 1987, there is  21 a further entry reference to Philip Turner.  Do you  22 have that?  23 THE COURT:  That's 1L.  24 MR. RUSH:  Thank you, my lord.  I don't have any of these marked  25 as yet in my binder.  26 THE WITNESS:  Yes.  2 7 MR. RUSH:  28 Q   Now, you were shown pages which are numbered 608, 610  29 and 613 and 615, and you indicated in -- when you were  30 questioned about this, that the references to which  31 you were directed by Mr. Goldie were references about  32 which Mr. Turner was talking, and you used again a  33 term "a long time ago."  Now, the first question I  34 have to ask you is how do you know it's a long time  35 ago by the references that you were shown, and those  36 references were on page 3 -- or 610 in the lower  37 right-hand corner, a reference to Pacific re Lelt, and  38 then on the next page, 613, to the top of the page,  39 and then to page 8 at the top of the page?  40 A   Because those migrations took place a long time ago in  41 terms -- and -- several hundred years, in terms of  42 several hundred years or more.  43 Q   All right.  I guess I should ask you what indicates  44 there is a discussion of a migration here?  45 A  Well, it's when Lelt migrated from Kisgegas which was  46 also about the time that the Nekt migrations took  47 place, N-E-K-T. 9042  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 Q   All right.  And do you recall what was recorded  2 between pages three and six -- do you have an  3 independent recollection, Mr. Sterritt, of this?  4 A   No, I don't.  5 Q   All right, thank you.  6 Mr. Sterritt, if you'll direct your attention now,  7 please, to tab 2, and this is the second divider at  8 tab 2.  9 THE COURT:  I think, Mr. Rush, it might be best if we take the  10 adjournment now.  11 MR. RUSH:  Thank you.  12 THE REGISTRAR:  Order in court.  Court will recess.  13  14 (PROCEEDINGS ADJOURNED AT 9:45 a.m.)  15 (PROCEEDINGS RECONVENED AT 10:00 a.m.)  16  17 THE COURT:  Thank you, Mr. Rush.  18 MR. RUSH:  19 Q   My lord, I next refer the witness to an entry of  20 January 31st, 1979, tab 2, and this is the -- looks to  21 be the last divider of tab 2, and I believe that's G.  22 Mr. Sterritt, your attention was drawn to the  23 first, about, seven lines of this entry by Mr. Goldie.  24 And in part, and at the top of this entry, you say --  25 or you wrote in recording Mr. Gunanoot's statements,  26 "He mentioned his family was camped near Spatsizi."  27 What did you understand Mr. Gunanoot to be referring  28 to when he referred to his family?  29 A   He was at that time, David was very young and he was  30 with his mother and father and brothers and sisters.  31 Q   His father being Simon?  32 A   Simon Gunanoot, yes.  33 Q   And his mother being?  34 A   Sara.  35 Q   Thank you.  Refer Mr. Sterritt now, my lord, to tab 7,  36 first entry.  Now, my lord, Mr. Sterritt was referred  37 to one page of this entry and I intend to put the  38 remaining one, two, three pages to Mr. Sterritt in  39 order to fill out the entry.  40 Now, Mr. Sterritt, you -- firstly, let me ask you,  41 do you have any independent recollection of this  42 interview?  43 A   I don't know what you mean by "independent  44 recollection".  45 Q   Well, apart from this document, can you remember back  46 to this interview with Mr. Stephen Robinson on  47 December 31st, 1981? 9043  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 A   Yes.  That -- to the extent that Steve was -- Steve  2 Robinson was talking about Spookw, S-P-O-O-K-W,  3 Spookw's relationship to Yagosip in connection with  4 the territories of Spookw and Yagosip.  5 Q   Okay.  And you said in response to Mr. Goldie that you  6 couldn't recall, in reference to the item number three  7 at the bottom right-hand corner of the first page of  8 that entry, you said that -- and my note is, "I can't  9 recall if this is what Steve Robinson said or whether  10 I wrote it down."  And I took that to mean, "or I  11 wrote it down", as your own.  Do you recall in looking  12 at the whole of the entry, notes one, two and three,  13 do you have any other recollection by reference to  14 notes one and two?  15 A  Well, in terms of note number two, this reference, "If  16 the family gets too big," then it's in shorthand  17 there, "but can move out and establish own house.  18 Example, Yagosip, Y-A-G-O-S-I-P, could do this and  19 take other family too."  And then says, "This would  20 not break up the land."  And then in terms of the land  21 of Spookw and Yagosip it would not break up the land  22 between them.  There is -- there is land of Spookw  23 and -- but that would not mean that the land, if  24 Yagosip set up another house, would not be taken away  25 from Spookw, but Yagosip looks after the land, Yagosip  26 looks after the treasure chest.  27 Q   My question to you is can you -- by reference to  28 numbers one and two of the note, do you recall if it  29 was your note and your words or Mr. Steve Robinson's  30 in relation to number three?  Does that help you any?  31 A   The only thing that I can go by is that the printing  32 seems to be different there than the rest and I don't  33 know whether there is a reason for that.  It's my  34 printing, whether that's my note or whether Steve has  35 said that to me at the time, but I mean I know that  36 Spookw has land and there is this complex -- I don't  37 know if it's complex, but this other situation of  38 Yagosip looking after the treasure chest.  39 Q   All right, thank you.  40 A  When I say the printing looks different, whether it  41 was done there -- done then or just after, I can't  42 remember, but it looks different than the other and  43 that's all I can say.  44 Q   All right, thank you.  Would you please refer now to  45 tab 8 and this is the fourth divider in sequence under  46 tab 8, and it's a reference to an interview with Mr.  47 David Gunanoot, January the 11th, 1983. 9044  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  That's 8D.  1  THE COURT  2  MR. RUSH:  3  Q  4  5  A  6  Q  7  8  9  10  11  A  12  Q  13  14  15  A  16  Q  17  18  A  19  Q  20  21  A  22  23  24  25  26  Q  27  28  A  29  Q  30  31  32  33  34  35  36  37  38  39  MR. GOLDI  40  41  MR. RUSH:  42  Q  43  44  A  45  Q  46  A  47  Q  Thank you.  Now, you were asked -- do you have that,  Mr. Sterritt?  That's 11?  Yes.  All right, now, you were -- your attention was  directed to two pages in this entry, one at the bottom  of page 73, the second to last sentence on that entry  which says, "Peter Brown is hlaam and he is from  Kuldo."  Do you see that?  Yes, I do.  All right.  And then over to the next page, on page  74, "DG also said PB's father owned all along left  side of Legate Creek."  Do you see that reference?  Yes.  All right.  My question is, is "PB's father" referring  to Peter Brown's father?  Yes.  And who do you understand Peter Brown's father to  be -- to have been?  As I recall, Peter Brown's father is the brother of  Edith MacDougall's father.  In other words, a member  of the House of Gwiiweehl, G-W-I-I-W-E-E-H-L, and  that's the relationship of Niistahuuk,  N-I-I-S-T-A-H-U-U-K.  All right.  So you say that Peter Brown's father is a  member of the House of Gwiiweehl?  Yes.  All right, thank you.  Now, I direct Mr. Sterritt's attention, please, to  tab -- we are looking at tabs now, Mr. Sterritt, tab  13, and this is an undated reference, and your  attention was directed in cross-examination to the  bottom right-hand portion of this page where you are  recording comments made by Mr. Thomas Wright, and it  says, and I'm quoting, "Said Kathleen Jackson also  Xsigwin Gyilaa and Samuel," and I can't make out the  name.  Can you tell us what that name is?  EI:  I think it's "owns".  You said "also", I think it's  "owns".  I'm sorry, yes, thank you.  "Said Kathleen Jackson  owns Xsigwin Gyilaa and Samuel"?  Brown, B-R-O-W-N.  All right.  And who is Samuel Brown?  He was O'yee, 0-'-Y-E-E, from the House of Nii Kyap.  All right.  Now, am I pronouncing that word under 9045  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1 Kathleen Jackson's name correctly?  2 A   Yes.  That's — yes, Xsigwin Gyilaa, X-S-I-G-W-I-N,  3 space, G-Y-I-L-A-A.  4 Q   Then it says, "T-H-O-S," which I take to be Thomas; is  5 that correct, it's the next line?  6 A   Yes.  7 Q   And then the next word, FA, is that father?  8 A   Yes.  9 Q   Owns Gwiis Xsigwin Gyilaa?  10 A   Yes.  11 Q   And can you tell his lordship who Thomas -- Thomas,  12 and I take that to be Thomas Wright's father?  13 A   Yes.  14 Q   Who is Thomas Wright's father?  15 A   I think his name was Albert Wright.  He was Lax Seel,  16 L-A-X space S-E-E-L.  17 THE COURT:  I don't think that last long word was spelt for  18 Madam Reporter.  19 MR. RUSH:  20 Q   G-W-I-I-S, new word, X-S-I-G-W-I-N, new word  21 G-Y-I-L-A-A.  22 Okay.  Now, do you recall the House of Albert  23 Wright?  24 A   It's either Miluulak or Wii minosik.  25 Q   Okay.  Now, Mr. Sterritt, if you'll please turn to tab  26 22, your attention was drawn to the 5th page in this  27 tabulation, which is a map of Wilson Duff.  Do you  28 have it?  2 9 A   Yes, I do.  30 Q   Now, what do you understand from this map to be the  31 outer boundary of what is described as "Gitksan  32 villages and territories" on the face of this map?  33 A   That's the work that Wilson Duff had done to that  34 point.  35 Q   Okay.  What I mean to say is, when you say "work",  36 what do you understand the outer boundary to be?  Is  37 there an outer boundary shown on this map?  38 A   Yes.  Heavier dashed line.  39 Q   Okay.  And your attention was drawn to W2 within this  40 heavier dashed line, and you were referred to the next  41 page which contained a legend of some sorts, and W2  42 was referred to as being -- referring to Malee  43 Niislaganaws and ak-gwendasqu.  There are other  44 references there to Wl, W2, W4, W5, Fl, two, three and  45 four.  Can you tell his lordship what those references  46 are to?  47 A   Just for the reporter, first of all, the spelling 9046  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  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  MR.  there for Malee is M-A-L-E-E, Niislaganaws,  N-I-I-S-L-A-G-A-N-A-W-S, ak-gwendasqu, A-K, dash,  G-W-E-N-D-A-S-Q-U.  Okay.  The references of the letter and the  number, Wl, Wilson Duff identified each of these  houses by the wolf one, wolf two, wolf three, wolf  four.  And under the frog tribe, Fl, F2, F3, and F4,  so that's wolf one and frog one, et cetera.  Q   All right.  There is a W5 there as well?  A  And a W5, yes.  Q   All right.  Now, where are these -- these are house --  house references, are they?  A   Yes.  Q   So Wl, as you've indicated yesterday in reference to  W2, refers to houses?  A   Yes.  Q   And likewise, all the way down with those references?  A   Yes.  Q   All right.  And are those houses referable to any  particular village?  A   The village of Kitwancool.  COURT:  Kitwancool is related to -- or assigned to -- which  houses are assigned to Kitwancool?  All of those.  All of them?  All of them are houses --  All of the F and W?  Yes.  Are from -- are houses of Kitwancool.  All right.  WITNESS  COURT:  WITNESS  COURT:  WITNESS  COURT:  RUSH:  Q  And to your knowledge, was there any other coded  reference with respect to this map of Mr. Wilson  Duff's, apart from that which appears on the page  after the map?  A   There is a -- in 1957 or '58, Wilson Duff worked with  Mrs. Cox and the hereditary chiefs at Kitwancool and  that resulted in a publication by the Provincial  Museum of B.C. called the Histories, Territories and  Laws of Kitwancool, and that's where those  designations come from.  Q   Just referring you to the code again, W5, what is the  reference there?  A   Txaw waaku, that was -- Txaw waaku is now James  Morrison. Here it's spelled, T-X-A-W space W-A-A-K-U,  but I think James Morrison's name is spelt probably in  the proceedings here T-X-A-W-O-K.  Q   Okay, thank you.  Now, I refer you to tab 24. 9047  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  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.  THE  MR.  COURT:  Sorry, you gave a date a moment ago?  WITNESS:  Yes.  In 1958.  COURT:  '58, thank you.  And that was the date of the  publication of the history?  WITNESS:  Yes.  It's a bulletin by the Provincial Museum of  B.C.  COURT:  Yes, thank you.  GOLDIE:  It's filed as an exhibit, my lord.  COURT:  RUSH:  Q  Yes, thank you.  Now, Mr. Sterritt, if you would please turn to tab 24  and you identified the notes contained at this tab as  being in your handwriting, and I would like to direct  the witness' attention, my lord, to the second entry  which is from the notebooks of Neil Sterritt dated  November 11th, '82, to February 13th, 1983, with an  eight encircled.  And in particular, the reference  that's at page 102, that is to say, the second full  page.  And Mr. Sterritt, on the right-hand side of  page 102, about a third of the way down there is a  statement:  "Gordon Robinson will take the name  Txawok."  Do you know Gordon Robinson?  A   Yes.  Q   This particular entry appears to be dated January  16th, 1983, if you just go back one page?  A   Yes.  Q   To your knowledge, did Gordon Robinson take the name  of Txawok?  A   No, he did not.  Q   Will you go over one more page, please?  A   Yes.  Q   And at the bottom of the page on the right-hand side  is an entry under the date of January 17th, 1983,  where it says:  "James also criticized me for not attending Smoke,  Memorial, and suggested that I should go to family  when death occurs."  Where it refers to "attending Smoke, Memorial,"  are those two separate events or are they the same  event?  A   Those are two separate feasts that are held leading up  to the funeral feast of a deceased.  Q   And in this particular entry, I direct you next to the  next page which refers on the right-hand side, Eddy  Russell feast, Txawok, date January 17th, 1983."  Is 9048  N.J. Sterritt (for Plaintiffs)  Cross-exam by Mr. Goldie  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR.  THE  MR.  THE  MR.  THE  MR.  that entry, the beginning page, and a subsequent page  following 107, 108, do they relate to the funeral  feast of Eddy Russell?  A   Yes, they do.  Seems to me there should be more pages  after 108, but —  MR. RUSH:  All right, thank you.  That's — my lord, the  reference that was made to the Histories, Territories  and Laws of the Kitwancool, it's Exhibit 448.  THE COURT:  Thank you.  Can you refer me back to where that  was -- where that map was we had a minute ago?  RUSH:  Yes.  That was tab 22, page 5.  COURT:  Thank you.  And the exhibit number again was?  RUSH:  448, my lord.  COURT:  Thank you.  RUSH:  That completes the redirect.  COURT:  All right, thank you.  GOLDIE:  My lord, I have a document which was produced on  Friday, plaintiffs' number 5802.  If my friend is  prepared to agree that the author is Mr. Sterritt, may  I file that as an exhibit at a later point?  I just  have the one copy now.  RUSH:  Yes, I can agree to that.  COURT:  Yes, all right.  All right then, Mr. Sterritt.  You predicted you  would be two weeks in the box and it's been nearly  four months.  Keeping up with our usual pace.  Thank  you, you are excused.  WITNESS:  I thought these people said, "Well, Neil, you are  in the home stretch," and the emphasis was on the word  stretch.  COURT:  Thank you.  GOLDIE:  That's to do with the 7th inning.  RUSH:  Perhaps we can stand down for a few minutes as Miss  Mandell will be leading the next witness, and if you  can allow a few minutes?  COURT:  How long do you think you will be?  RUSH:  I think we should perhaps take seven minutes.  REGISTRAR:  Order in court.  Court will recess.  (PROCEEDINGS ADJOURNED AT 10:25 a.m.)  I hereby certify the foregoing to be  a true and accurate transcript of the  proceedings herein transcribed to the  best of my skill and ability.  MR.  THE  THE  THE  MR.  THE  THE  MR.  THE  Toni Kerekes, O.R., R.P.R.  9049 9049  Proceedings  Cross-exam by Mr. Goldie  1 (PROCEEDINGS RECOMMENCED AFTER SHORT RECESS)  2  3 THE REGISTRAR:  Order in court.  Ready to proceed, My Lord.  4 THE COURT:  Ms. Mandell, I have decided to make a declaration  5 that this is a bad day.  I find that I have to -- I  6 have an appointment with some staff people at the  7 usual adjournment time at 11:15.  Have to take another  8 adjournment then.  I'm sorry.  9 MS. MANDELL:  I would like to introduce a David Paterson.  He  10 will be assisting with respect to this witness.  11 THE COURT:  Thank you.  He is welcome, of course.  David —  12 MS. MANDELL:  Paterson.  13 THE COURT:  Thank you.  14 MS. MANDELL:  P-a-t-e-r-s-o-n.  And I am also handing up to you  15 a witness brief for Dr. Rolf Mathewes.  16 MR. WILLMS:  I object.  17 THE COURT: What took you so long, Mr. Willms?  18 MR. WILLMS:  My Lord, what — I have spoken to Ms. Mandell just  19 as she handed it to me before court reconvened here,  20 and advised her that based on my discussions with Mr.  21 Rush and my written communications with Mr. Rush that  22 it was my understanding that there was going to be no  23 attempt to mark as an exhibit what is contained in Tab  24 2 of that witness brief, which is this witness's  25 written report, and the exchange of communications  26 between myself and between Mr. Rush concluded with Mr.  27 Rush advising that the witness was going to give  28 evidence, viva voce evidence, that the report was not  29 going to be tendered as an exhibit.  Now, for that  30 reason, and the reason why we were discussing it was  31 we wanted to save court time, if the report was going  32 to be tendered, to have any objections aired in  33 advance, and then carry on.  Now, I am frankly  34 surprised that this morning my friend Ms. Mandell  35 wants to tender that document.  And she told me she  36 wants to tender it as an exhibit, not as a brief, but  37 as an exhibit, which includes Tab 2 which is the  38 report.  Now, I briefly looked at it.  Tab 1 and all  39 the other tabs look fine as an exhibit, but tab 2 is  4 0 the written report.  I have got an argument on that  41 report as to why portions of it are inadmissible.  I  42 advised Mr. Rush of that in advance, and before that  43 report is put before any witness I would like to argue  44 the admissibility of the extracts which I objected to  45 and advised my friends of.  46 THE COURT:  The report, I take it, was served within the  47 required time? 9050  Proceedings  Cross-exam by Mr. Goldie  1 MS. MANDELL:  Yes.  2 THE COURT:  The objection is to the contents of the report?  3 MR. WILLMS:  Yes, it is, My Lord.  4 MS. MANDELL:  It was served February 2nd, 1987, my lord.  The  5 debate between Mr. Rush and Mr. Willms had to do with  6 whether or not we were filing the report and relying  7 upon it and using -- producing the witness for  8 cross-examination alone, or whether we would be  9 calling viva voce evidence, and we elected to call  10 viva voce evidence, and albeit putting the report to  11 the witness, it was something that he did, and asking  12 him to identify it and using it as a guide for the  13 evidence.  And if my friend is right that certain  14 portions of it are objectionable, then those portions  15 can be struck at the end of the day.  16 MR. WILLMS:  My Lord, the letter that I wrote to Mr. Rush said  17 "confirming a conversation".  18 THE COURT:  Sorry, the date?  19 MR. WILLMS:  The date of the letter is August 9.  What happened  20 was these reports, notice was given in -- on June 28th  21 by Mr. Grant notice was given that the reports would  22 be tendered under section 10 of the Evidence Act.  2 3 THE COURT: That's 1987?  24 MR. WILLMS:  That's 1988.  So on June 28th, 1988 Mr. Grant gave  25 us notice that the reports -- he wanted to tender the  26 reports under Section 10.  We then wrote back on July  27 8th, 1988 and advised that in respect of each of the  28 reports, and there were seven reports that were  29 referred to in Mr. Grant's letter there, that there  30 were objectionable extracts in each of the reports  31 that -- and for that ground we said we would object to  32 the admissibility of the report in its present form.  33 What happened next was I had a conversation with Mr.  34 Rush and wrote him a letter on August the 9th where I  35 said to him, you indicated in the conversation that  36 you were considering tendering the authors of the  37 report under Section 11 rather than tendering their  38 reports under Section 10.  And then you suggested that  39 this approach may obviate the necessity of arguing  40 admissibility prior to calling the witness, which is  41 what we were focusing on, My Lord, attempting to argue  42 the issue of admissibility before the witness got  43 here, so the witness wouldn't be hanging around  44 wasting time.  45 Mr. Rush wrote back to me on August the 26th  46 confirming the conversation of August 25th, and then  47 saying this: 9051  Proceedings  Cross-exam by Mr. Goldie  1 "With respect to the expert opinion reports of  2 Haeussler, Ray, Mathewes, Chilton, Gottesfeld,  3 Hatler and Albright, we intend to lead these  4 reports pursuant to Section 11 of the B.C.  5 Evidence Act."  6  7 And what I took from that, My Lord, especially in  8 light of Mr. Justice Bouck's decision in Pederson and  9 Degelder, that they were going to tender the viva voce  10 evidence of the witness with such extracts of the  11 report, like tables, the facts upon which the opinion  12 was based, the tables for the report.  Those could be  13 tendered, those are quite proper, but that there would  14 be no attempt to tender the whole report.  15 Now, as I understand it, what my friend wants to do  16 here is not only file the whole report, but in  17 addition lead the viva voce evidence as well.  Now,  18 that's what I objected to.  There are portions of this  19 report which are objectionable, and if my friend wants  20 that report marked as an exhibit in this proceeding,  21 then I object and am willing at any time to argue the  22 admissibility of the sections that I object to.  23 THE COURT:  And what you're saying, Ms. Mandell, is that you  24 want to call the witness and do what?  25 MS. MANDELL:  Put the report to him as something which he did  26 and have him identify it as his work, tender the  27 report as an exhibit, question the witness with  28 respect to the report, and have him adopt or  29 distinguish certain parts of it, if he chooses.  My  30 friend can cross-examine on that, and if there is any  31 portions of the report which at the end of the day my  32 friend is right, really are objectionable and ought  33 not to be introduced into evidence for hearsay  34 problems or otherwise, then we'll strike those  35 sections.  36 THE COURT:  Why shouldn't — if there is something that's found  37 to be inadmissible, why shouldn't we determine that  38 first?  39 MS. MANDELL:  I don't —  40 THE COURT:  Why should it be in at all?  41 MS. MANDELL:  I think that the witness can identify it as his  42 work, and it can go in as a document identified by the  43 witness.  44 THE COURT:  Well, all he can identify — all he can usefully  45 identify is something that's admissible, and if it's  46 not admissible, it's irrelevant to have it identified  47 in his -- as his work. 9052  Proceedings  Cross-exam by Mr. Goldie  1 MS. MANDELL:  Well, I —  2 THE COURT:  You see, the problem, of course, and this is all the  3 lawyers' fault in this province, they have it so mixed  4 up with the experts' reports that the the courts have  5 become very, very reluctant and very, very hesitant  6 about expert reports.  Now, this is a different class  7 of case, but the judges are frankly just as alarmed at  8 the way the bar are using expert reports.  Now, as I  9 say, this is a different class of case, but the only  10 protection we have is to say thou shalt not call the  11 same evidence twice.  If you put it in a report, you  12 put the report in, you can't call the evidence again  13 viva voce.  Now, how do we solve that?  14 MS. MANDELL:  Well, My Lord, I think that the evidence is only  15 going to be called once.  In this instance the report  16 will be identified by the witness as a document  17 prepared by him.  He'll be led through the report and  18 the sections which he can adopt without reference to  19 further questions will be adopted by him, and it's  20 only an aid to the witness giving evidence that that  21 procedure take place.  Where there is anything in his  22 report which the witness requires to further explain  23 or my friend wishes to cross-examine upon, that will  24 be the subject of the examination and the  25 cross-examination, and if at the end of the day there  26 is parts of the report -- I don't believe, My Lord,  27 and this is part of the problem, I don't really  28 believe that there is much with respect to this  29 witness's report, at least, that -- that once my  30 friend hears the direct examination will be struck.  31 Now, if I'm wrong, so be it, but it seems that this is  32 a facilitating methodology to try and allow the Court  33 the benefit of the witnesses -- the witness having  34 turned the phrase and created the description in a  35 concise way, he can adopt that in evidence in a minute  36 and get on with what is to be directed in terms of his  37 evidence.  I mean, we don't have to put in the report.  38 THE COURT:  But if the report is in, if it's found admitted or  39 found to be inadmissible, there is no reason for the  40 witness in the box to even refer to it.  It's already  41 in.  42 MS. MANDELL:  Although that's not the end of the day in terms of  43 his evidence.  44 THE COURT:  I rather thought from what you described that you  45 have him go through the report and say I adopt that, I  46 adopt that, I adopt that.  47 MS. MANDELL:  That is how I intended to do it, and have him 9053  Proceedings  Cross-exam by Mr. Goldie  1 explain other things and so forth.  I mean, some of it  2 is -- some of it's straightforward and easily  3 understood, and other of it is more complicated, and  4 hopefully going to be qualified as an expert and can  5 assist the Court in interpreting various sections of  6 it.  7 Now, I think that the procedure suggested by my  8 friend is -- first of all the first time we heard  9 about it.  If his vision of this whole thing is that  10 we adduce graphs and not the report, and he thought  11 this was well understood between counsel, perhaps he  12 should have said it before 10 to 11:00 this morning.  13 But in any event it seems that at this stage we have a  14 fairly, I say, straightforward way of going at the  15 evidence.  We can put it in and get it finished and  16 have all the facts tested upon, and everyone knows  17 what we are talking about.  My friends had notice in  18 1987 of this.  It's hard to at this point imagine  19 how -- by my friend's suggestion, things can only be  20 more complicated.  Rather than to put in the report  21 about the description of certain pollen analysis  22 samples and so forth, we are having the expert having  23 to now explain it in his own words without the aid of  24 something which has already summarized it, and I don't  25 see the advantage to any of us of that process.  26 THE COURT:  My inclination, Ms. Mandell, is to fall back on  27 principle and say that if you want to put something in  28 evidence to which your friend objects, that we should  29 determine before it goes into evidence whether it is  30 admissible.  31 MS. MANDELL:  Perhaps what we should do, My Lord, in order to  32 facilitate it, is to mark the report for  33 identification.  We'll lead our evidence, my friend  34 will object to it, and we can have argument with  35 respect to its full admissibility at the end of the  36 day.  37 THE COURT: Do you have anything to offer in this regard, Ms.  38 Koenigsberg?  39 MS. KOENIGSBERG: No, My Lord.  I'm afraid my interpretation of  40 the law of how one should go about this is in  41 accordance with my friend, Mr. Willms, and I had  42 assumed that we would proceed differently, as Mr.  43 Willms -- as Mr. Willms did.  I have a great deal of  44 difficulty with why we would put something in and then  45 argue about its admissibility later.  It seems to be  46 backwards.  47 THE COURT:  All right.  Well, I think what I ought to do is 9054  R. W. Mathewes (for Plaintiffs)  In chief by Ms. Mandell  1 proceed as Ms. Mandell suggests to the point where Mr.  2 Willms makes an objection of the substantive kind he  3 is talking about, and at that point determine the  4 question of whether or not the document is admissible  5 and what parts are admissible and what parts are not.  6 I don't think we should leave the argument on  7 admissibility 'til the end of the evidence.  I agree  8 with Ms. Koenigsberg that seems to be backwards.  9 MR. WILLMS:  I guess the only thing we are afraid of, and I have  10 advised my friends, including the pages that I have  11 objected to, and there isn't much in this report.  12 There is three or four pages and paragraphs that I  13 have objected to.  But I am afraid that we will go  14 through the report leading evidence not objectionable,  15 and then flip over the part that I've -- but then the  16 document is there.  17 THE COURT:  Well, I'm not going to have it marked at all until I  18 have had the argument on admissibility.  19 MS. MANDELL:  Thank you very much.  I would like to call Dr.  20 Rolf Mathewes to the stand.  21  22 ROLF WALTER MATHEWES, a witness  23 called on behalf of the  24 plaintiffs, having been duly  25 sworn, testifies as follows:  26  27 THE REGISTRAR:  State your name for the record, please, and  28 spell your last name.  29 THE WITNESS:   Dr. Rolf Walter Mathewes, M-a-t-h-e-w-e-s.  30 THE REGISTRAR:   Thank you.  You may be seated sir.  31 MS. MANDELL:  My Lord, I am seeking to tender Dr. Mathewes as an  32 expert in the field of paleobotany, and in particular  33 pollen analysis and environmental reconstruction.  We  34 will be seeking to have him give expert opinion  35 evidence as to, first of all, the postglacial  36 environmental changes around Seeley Lake, and secondly  37 of the vegitation and climatic history within parts of  38 the claims area.  39 My Lord, I would like to ask the witness and Your  40 Lordship to turn to Tab 1 of the witness brief.  41  42 EXAMINATION IN CHIEF BY MS. MANDELL:  43  44 Q   Dr. Mathewes, do you recognize the document which is  45 contained in Tab 1?  46 A   Yes, it's my curriculum vitae that I submitted to you.  47 Q   And this document was prepared by you? 9055  R. W. Mathewes (for Plaintiffs)  In chief by Ms. Mandell  1 A   Yes, it was.  2 MS. MANDELL:   All right.  I would like it to be marked as an  3 exhibit please.  4 MR. WILLMS:  Well, how do we do that?  It's in one big book.  5 THE COURT:  Oh, well that's not too difficult.  We can always  6 tear documents out of books.  7 MR. WILLMS:  All right.  8 THE COURT:  We can't strike things from the record, but we can  9 sure tear things apart.  Is there any objection to --  10 MR. WILLMS:  I have no objection to the curriculum vitae, My  11 Lord.  12 THE COURT:  The curriculum vitae will be the next exhibit.  13 Exhibit number?  14 THE REGISTRAR:  The next number will be 777, My Lord.  15  16 (EXHIBIT 777 - TAB 1 - DR. MATHEWES'  17 CURRICULUM VITAE)  18  19 MS. MANDELL:  20 Q   I would like to ask you to turn to the first page of  21 the curriculum vitae, and you have indicated that you  22 had a PhD from the University of British Columbia in  23 botany; is that correct?  24 A   Yes, that's correct.  25 Q   And what was your dissertation concerning?  26 A  My dissertation dealt with the postglacial vegetation  27 history and climatic history of the Marion Lake area  28 and the lower Fraser Valley.  29 Q   And at page 2 of your curriculum vitae at the bottom,  30 the last sentence there is -- there is there indicated  31 under awards "excellence in teaching awards, Simon  32 Fraser University, February, 1987".  You received an  33 award for excellence in teaching?  34 A   Yes, I did.  35 Q   And if you could --  36 THE COURT:  Did that say excellence?  37 THE WITNESS:   It should be excellence.  There are a number of  38 typographical errors.  3 9 THE COURT:  Thank you.  4 0 MS. MANDELL:  41 Q   And if you could turn to page 15 of your vitae.  You  42 there indicate some of the courses which you are at  43 present teaching or you have taught, and I would ask  44 you now with respect to the courses listed -- I am  45 going to indicate certain of these courses to you and  46 ask whether or not the areas which you cover in your  47 course subject pertains to the area where you will be 9056  R. W. Mathewes (for Plaintiffs)  In chief by Ms. Mandell  1 asked to give in expert opinion evidence today.  I'll  2 begin by the second item down on the list:  3 "Course 473  Special topics, paleoecology and  4 palynology."  5 A   Palynology.  Yes, that certainly is relevant.  That  6 was a special topics course given before this course  7 became a regular offering at the university, and it's  8 now essentially numbered at Biscience 434 further down  9 the list, paleocology and palynology.  10 Q   And how is the topic covered in that course pertaining  11 to the area of expertise that you are going to be  12 giving expert opinion on today?  13 A  Well, the term palynology to begin with is a special  14 sub-discipline within the general area of paleobotany,  15 the study of fossil plants, plants of the past using  16 their fossil remains.  Palynology specifically refers  17 to the study of microscopic pollen grains and spores,  18 which are in fact the most abundant fossil remains of  19 plants throughout the geological record, and are  20 widely used in palaeoenvironmental reconstruction,  21 particularly the last few millions years.  22 THE COURT:  What does paleo mean?  23 THE WITNESS:  Paleo?  Referring to the past.  24 THE COURT: All right.  25 THE WITNESS:   So paleoecology in a broader sense includes any  26 kind of reconstruction of the ecology or the  27 relationships between physical environments and  28 organisms of the past.  2 9    MS. MANDELL:  30 Q   And paleobotany, is that the same?  31 A  Well, paleobotany is more an umbrella term that covers  32 any kind of study of fossil plants.  Palynology would  33 be especially within that dealing with microscopic  34 plant remains, rather than larger remains such as  35 seeds or leaves.  36 Q   When you speak about pollen analysis, what is pollen  37 analysis and how is that part of paleobotany?  38 A   Pollen analysis, again to be more specific, is the  39 quantitative reconstruction of numbers of pollen  40 grains and spores that have been identified in the  41 past, where you are trying to interpret not simply the  42 presence of a particular plant in the past fossil  43 record, but you are trying to quantify changes in  44 terms of numbers.  So you count statistic --  45 significantly large quantities of pollen grains and  46 spores, and that generally is called pollen analysis  47 when you are analyzing large numbers. 9057  R. W. Mathewes (for Plaintiffs)  In chief by Ms. Mandell  1 Q   And is that a factor in environmental reconstruction?  2 A  Very much so.  It's one of the widely used and widely  3 recognized techniques for reconstructing.  4 Particularly vegetation history from which other kinds  5 of information can also be inferred.  6 Q   And when you are reconstructing environments based  7 upon pollen analysis, is there some significance about  8 the quantity of pollen which you aren't capable of  9 counting with respect to various samplings which you  10 take?  11 A  Well, yes, because the kinds of sediments that include  12 this fossil pollen and spores from which they are  13 extracted vary in the degree to which pollen grains  14 are preserved.  Some sediments preserve pollen grains  15 relatively poorly, some preserve them very well, such  16 as lake sediments and acid peat bogs, so --  17 THE COURT:  You have to forgive us, but this is all new to us.  18 We haven't heard these terms before.  19 THE WITNESS:  Okay.  I'll try to go more slowly, Your Honour.  20 THE COURT:  Slow down quite considerably I think.  21 THE WITNESS: Okay.  The point is not all deposits are as useful  22 as others in conducting pollen analysis studies, and  23 clearly lake sediments are generally preferred for  24 people working in the last few thousand years in order  25 to do the most detailed kind of reconstruction.  Peat  26 bogs are another kind of deposit that are also widely  27 used and have a long literature and history explaining  28 their use and interpretation.  2 9    MS. MANDELL:  30 Q   And in the cores which you have identified so far,  31 473, 434, and I take it 434, which is found at the  32 bottom of the list, do you teach the method of pollen  33 analysis as well as the environmental reconstruction?  34 A   Yes, I do.  The two parts of the title refer to the  35 fact that I deal, one, with the methodology of pollen  36 analysis and palynology, which also includes the  37 identification of pollen grains and spores.  38 Palynology is again a wider term that deals with not  39 just the counting identification of pollen grains of  40 the past, but may also deal with identifying modern  41 pollen grains, so that we can compare them to ones we  42 find in the past in order to be able to establish  43 whether we are dealing with the same organisms or not.  44 Q   All right.  Am I correct, then, that the reason that  45 the -- that the purpose of your science is to attempt  46 to reconstruct environments of the past?  47 A   Correct.  That is the overall main goal of the type of 905?  R. W. Mathewes (for Plaintiffs)  In chief by Ms. Mandell  1 research that I engaged in.  2 Q   All right.  I would like to turn you to page three of  3 your curriculum vitae  4 THE COURT:  What page?  5 MS. MANDELL:  Page three.  6 THE COURT:  Okay.  7 MS. MANDELL:  8 Q   And there the third from the bottom item, which is  9 under research funding, you identify:  10  11 "Late quaternary vegetation dynamics and climatic  12 change in coastal British Columbia."  13  14 And that there was money paid to you in 1987 and  15 '88.  My question to you is whether or not it's common  16 within your work that climate changes are a major  17 factor in the analysis which you bring to bear upon  18 the environmental reconstruction.  19 A   Should correct the title, the term late quaternary.  20 Quaternary is a term that refers to a geological  21 period, approximately the last two million years,  22 which would be colloquially referred to as the ice  23 ages.  So yes.  In fact one of the main uses for which  24 pollen analysis has historically been used is to help  25 interpret climatic changes, and this grant which I was  26 awarded by the Natural Sciences and Engineering  27 Research Counsel of Canada specifically addresses  28 questions of trying to reconstruct both the vegetation  29 changes and from that climatic changes in coastal  30 British Columbia.  31 Q   And the last item under environment of the same page,  32 drought history of a lake in Alberta.  Is this also a  33 grant with respect to studying climate?  34 A   Yes, it is.  This is a grant I obtained from the  35 Atmospheric Environment Service, Environment of  36 Canada, for assistance of a doctoral student of mine,  37 who is working under my direction, who is trying to  38 use techniques of pollen analysis and paleoecology to  39 try and reconstruct the severity and frequency of  40 drought in the southern Canadian prairies.  41 Q   If I could ask you to turn to page 5, the fourth item  42 from the bottom of the page.  We are talking here  43 about your invited talks, and you mention in May of  44 1983 there was a talk presented by you entitled  45 Paleobotanical Evidence of Climatic Changes in British  46 Columbia during Late-glacial and Holocene time.  Was  47 that talk also concerning issues involving climatic 9059  R. W. Mathewes (for Plaintiffs)  In chief by Ms. Mandell  1 changes?  2 A   Yes, it clearly is, based on the title.  I have been a  3 member of the -- an invited member of the Canadian  4 Committee on Climatic Changes and Man, which meets  5 annually in Ottawa in order to discuss and work with  6 other people working on climatic change in Canada,  7 possible consequences of future climatic exchanges  8 that are currently in -- very much under discussion in  9 Canada.  10 Q   All right.  11 THE COURT:  What's a holocene time?  12 THE WITNESS:   Holocene is another geological term which refers  13 to the last ten thousand years.  Holocene is  14 equivalent to the last ten thousand years.  15 THE COURT:  That's h-o-l-o-c-e-n-e.  16 THE WITNESS:  Yes, it is.  17 MS. MANDELL:  If I could turn you now to page 8 under your  18 record of professional distinction in 1986.  The  19 second item from the bottom of that column you  20 indicate that you were then the president of the  21 Canadian Association of Palynologists --  22 A   Palynologists.  23 Q   Palynologists.  Why do the palynologists assemble in  24 an association?  25 A  Well, like many other professionals, they have common  26 interests, and palynologists include people not only  27 in universities like myself, but include a number of  28 people in industry, particularly the oil industry  29 where fossil pollen are used in again reconstructing  30 past environments in the distant geological past in  31 relation to formation of oil deposits and  32 interpretation of climates.  Even in much older time  33 periods.  And therefore the Canadian association was  34 formed in order to allow for the greater interchange  35 of information and current developments in the field  36 among Canadian active researchers in this area.  37 Q   And if you could turn to page 9 under university  38 committees.  You have identified as the first item,  39 that for 1976 to the present you have been an  40 associate member of the Department of Archaeology.  41 Could you explain why you maintain membership in the  42 Department of Archaeology?  43 A  Well, I took up my university post at Simon Fraser in  44 1975, and soon after I established my laboratory there  45 I was invited by the chairman of the Archaeology  4 6 Department to become a member of their group simply  47 because archaeologists are frequent users of the kinds 9060  R. W. Mathewes (for Plaintiffs)  In chief by Ms. Mandell  1 of environmental reconstructions that palynologists  2 generate.  In other words, both the vegetation changes  3 that pollen analysis can tell us about and the  4 climatic changes that can be inferred from the  5 vegetation changes are of interest to those  6 researchers working on human history problems and  7 archaeological records.  8 Q   Is your field, then, inter-disciplinary?  9 A  Very much so.  I would have to say that my science or  10 my specialty is very inter-disciplinary.  In fact you  11 would find people with my research interest, in terms  12 of pollen analysis and climatic change not only in  13 biology departments such as myself, but you will find  14 them in geography departments, you can find them in  15 anthropology departments, you can find them in a  16 number of earth sciences and geology departments  17 simply because the kinds of information is very  18 inter-disciplinary and requires the integration of  19 data and information from a variety of sources.  20 Q   And have you, for example, in the course of your  21 training had any specific training or experience with  22 respect to geology?  23 A   Yes.  Well, I did my undergraduate training at Simon  24 Fraser University, where I received a Bachelor's  25 degree.  Simon Fraser does not have a geology  26 department as such, but there are courses such as  27 geomorphology, climatology, physical geography,  28 quaternary geology, which are given by the geography  29 department, but by people with geolgical training.  So  30 I have had courses at Simon Fraser in the physical  31 geography geomorphology area, and while doing my  32 graduate training at the University of British  33 Columbia, I also took graduate level courses in fields  34 which relied to some extent on geology and soil  35 science.  In fact, I took a soil science course in the  36 soil science department at U.B.C. while I was a  37 graduate student there.  38 Q   And in the course of your york, for example, were you  39 ever exposed to the reading of air, photographs or  40 other of the tools that geologists often use?  41 A   Yes.  I haven't had a formal course in air photograph  42 interpretation as such, but when I returned from  43 Cambridge in 1974 to -- before taking up my post at  44 the university, I worked for a year in industry as an  45 environmental consultant, and during the course of  46 that year basically used air photos to interpret  47 continuously.  So I have had a lot of experience with 9061  R. W. Mathewes (for Plaintiffs)  In chief by Ms. Mandell  1 it, but no formal courses as such.  2 Q   I would like to turn you to pages 16 to 18 where you  3 there make reference to your publications, and I am  4 going to direct you to some, not all of the  5 publications which you've written, and ask you to  6 identify whether with respect to those that I am going  7 to direct you to, the area that you were writing about  8 in that publication pertains to the area of expertise  9 which we are seeking to qualify you today.  The first  10 is number 3 on the list.  11 A   Yes.  12 Q   And if you could explain what the -- whether or not  13 there is a relationship between the material covered  14 in that publication and the area of your experience  15 today.  16 A  Very much so.  This paper and number 4 both are papers  17 that were derived from work I did during my PhD thesis  18 at the University of British Columbia.  And number 3,  19 a palynological study of postglacial vegetation  20 changes in the University Research Forest.  I'm sorry,  21 these are written down.  To make it brief, yes, it's  22 very relevant.  I basically conducted pollen analysis  23 studies on a lake core, in fact in two lake cores.  24 One, Marion Lake, and one at Surprise Lake near Haney  25 here in the lower mainland, and in the course of that  26 certainly described the vegetation history and made  27 references to climatic changes.  2 8 Q   Okay.  And number 8.  29 A   Number 8.  Number 8 was a paper that resulted from  30 research which I conducted at Cambridge University in  31 1974, and it deals with the forest history of northern  32 Scotland, and in this paper again I deal with pollen  33 analysis and plant macrofossil analysis, which is the  34 analysis of seeds, leaves, woods and larger remains as  35 well as pollen in interpreting both the forest history  36 of this area in the Scottish highlands and again  37 making references to climatic changes over the  38 postglacial period from that data.  39 MS. MANDELL:   Thank you.  My Lord, is this an appropriate time  40 to break?  41 THE COURT: Yes.  Do you have another copy that Madam Reporter  42 could use?  43 MS. MANDELL:  Yes.  44  45 (PROCEEDINGS ADJOURNED FOR A SHORT RECESS)  4 6 (PROCEEDINGS RECOMMENCED)  47 9062  R. W. Mathewes (for Plaintiffs)  In chief by Ms. Mandell  1 MS. MANDELL:  My Lord, I am on page 17 of the curriculum vitae.  2 Q   Dr. Mathewes, number 14 of the list of publication.  3 Can you explain whether that material relates to the  4 subject matter of your evidence today?  5 A   Yes, it does.  It in fact takes the data from the 1973  6 paper you cited originaly, number 3, and with the  7 assistance of Dr. Linda Haeussler we used the pollen  8 counts from that paper to try and reconstruct climate,  9 more specifically in terms of temperature and  10 precipitation using a computer programme that Dr.  11 Haeussler had developed.  Therefore it relates in the  12 sense that there are attempts to refine some of these  13 paleoclimatic interpretations using pollen analysis  14 data, and this is one of the approaches that can be  15 used.  16 Q   All right.  And item number 19 of that same list.  17 A   Yes, it certainly relates.  My current research  18 projects focus primarily on the Queen Charlotte  19 Islands at present just to the west of the Hazelton  20 area, and this paper published in Science deals with  21 radiocarbon dates and plant macrofossil evidence  22 instead of pollen.  Again seeds and larger remains  23 which we use to try and interpret some of these  24 controversial questions about the glaciation of the  25 Queen Charlotte Islands and the possibility of a  26 biological refugium there.  So it relates in the sense  27 that we are looking at vegetation changes of the past  28 and climate in relation to glaciation.  29 Q   All right.  And number 23 of your list?  30 A   Number 23 certainly also is important.  This deals  31 with the study of the history of one single tree  32 species in British Columbia, red cedar, incorporating  33 largely pollen analysis evidence from a number of  34 sites in the northwest and correlating those with  35 known archaeological information compiled by Dr.  36 Richard Hebda from the Royal Provincial Museum.  In  37 that sense again it deals primarily with vegetation  38 change over time, in terms of this one species, and  39 the possible interaction of that species with native  40 populations.  41 Q   And is it common in your methodology to gather known  42 archaeological information as the assumption upon  43 which you will begin to study the environmental  44 construction of an area?  45 A  Well, it's not a prerequisite in any sense.  Some  46 areas have a particular archaeological problem that  47 might be interesting that I might be aware of.  In 9063  R. W. Mathewes (for Plaintiffs)  In chief by Ms. Mandell  1 that sense I would try to get what archaeological  2 information there was that might relate to this site,  3 but it is certainly not in every case.  Sometimes the  4 prime emphasis is strictly to look at forest change or  5 climate history.  The archaeology may be rather  6 peripheral, and I wouldn't spend a lot of time trying  7 to find out what was known to the archaeology.  8 Q   And number 27 on your list.  9 A   This is a review paper which summarizes up to about  10 1984.  Various lines of paleobotanical evidence from  11 my own work and the work of others in the published  12 literature, which tries to compile for southern  13 British Columbia what the fossil record of plants,  14 both pollen and macro remains, can tell us about  15 climate changes in southern British Columbia over  16 approximately the last 12,000 years.  17 Q   If I can stop you there and ask you whether or not in  18 the analysis which you do and have reported upon in  19 that paper, is fire frequency a factor which you  20 consider in the environmental reconstructive analysis?  21 A  Very much so.  In order to reconstruct fire history,  22 specifically you have to adopt a very different  23 methodology, but in terms of the importance of fire,  24 it's something that I always have to be aware of and  25 interpret, simply because as the forest composition  26 changes with time, fire is always a possibility for a  27 driving force that cause that change to occur.  28 Therefore we have to be aware of the ecological  29 requirements of the trees that we find in the fossil  30 record; in other words, to see if some are good  31 indicators of high fire frequency or conversely  32 other -- the presence of other trees might indicate  33 that forest fire frequency was relatively low.  So in  34 broad terms forest fires are always considered in the  35 reconstruction of this kind, although a specific  36 forest fire history using charcoal demands a different  37 analytical approach altogether.  38 Q   And lastly I turn you to 31 of the same list and ask  39 you whether or not there is any relevance of that  40 publication to the evidence which you might be giving.  41 A   Yes.  This paper again recently published relates --  42 this is -- actually now published in the Canadian  43 Journal of Botany.  No longer in press, as stated  44 here.  This paper is a continuation of my research  45 interests in the U.B.C. research forest at Haney,  46 where I did my original PhD work, because it has  47 become sort of a northern hemisphere reference site 9064  R. W. Mathewes (for Plaintiffs)  In chief by Ms. Mandell  1 for almost intercontinental correlations of  2 information about the impact of climate change and  3 other effects on vegetation.  So I have been  4 continuing work there, and with Mr. Wainman, who did  5 his master's degree under my direction, we  6 reconstructed the history of Marion Lake area over the  7 last 12,000 years using this time not pollen but only  8 macrofossils, in other words, seeds, leaf bits and  9 larger articles, and compared that record with the one  10 discerned strictly from the pollen analysis and found  11 out they corresponded.  12 THE COURT:  Seeds are macro —  13 THE WITNESS:   Yes.  Generally if you can see them clearly with  14 the naked eye without a lens, you refer to them as  15 macro lens.  16 MS. MANDELL:  My Lord, those are my questions with respect to  17 his qualifications as an expert.  18 THE COURT: Mr. Willms.  19 MR. WILLMS:  I have this difficulty, My Lord.  My friend said  20 that she was tendering this witness to give opinion  21 evidence on first of all postglacial environmental  22 changes near Seeley Lake, and secondly, climatic and  23 vegitative history in the claims area.  24 MS. MANDELL:  Within parts of the claims area.  25 MR. WILLMS:  Or parts of the claims area.  I have no difficulty  26 with this witness giving opinion evidence in that  27 area, and if that's all that he is being tendered for,  28 we can actually argue the admissibility of the text of  29 the report right now, because he isn't being tendered  30 in areas in which the written report goes beyond that.  31 So I would have cross-examination if my friend was  32 tendering this witness to give the opinions that I  33 have objected to, but it doesn't appear that she is,  34 and perhaps we could just white those parts of the  35 report out right now, because based on what she is  36 tendering him for, I don't have any objection to the  37 opinion evidence.  38 THE COURT:  All right.  Well, you people have the advantage, I  39 believe, because you have read the document under  40 discussion.  I haven't.  And I think what I will do,  41 subject to what Ms. Koenigsberg gives, rule that the  42 witness is qualified to give the opinion evidence in  43 the areas described by Ms. Mandell, and as I gathered  44 from the shaking of her head when you were speaking,  45 Mr. Willms, she doesn't agree that it's convenient to  46 dissect the report at this time, and for that reason I  47 am going to allow the matter to proceed until we get 9065  R. W. Mathewes (for Plaintiffs)  In chief by Ms. Mandell  1 to something substantive that you think you should  2 object to.  Do you have anything to add, Ms.  3 Koenigsberg?  4 MS. KOENIGSBERG:  No, and I have no difficulties with his  5 qualifications and the area that he is being tendered.  6 THE COURT:  Thank you.  7 MS. MANDELL:  Thank you.  My Lord, I, by way of explanation,  8 should advise Your Lordship that the purpose for our  9 calling this expert is related to evidence already  10 before Your Lordship.  The witness is not giving  11 evidence about the adaawk, but if you will -- Your  12 Lordship will recall in the evidence of Mary Johnson  13 found at volume 11, page 667 to --  14 THE COURT: Volume 11, page?  15 MS. MANDELL:  Page 667 to 669.  Mary Johnson at that time told  16 the adaawk of the men of Mediik, and you will recall  17 that she spoke about a -- in part in the adaawk at  18 least about a giant grizzly bear, a giant forest  19 coming down the valley of a creek, and that the forest  20 was torn apart and there was trees uprooted.  I am  21 paraphrasing her adaawk.  And that the bear glared at  22 T'am Lax amit, which she spoke about, and then moved  23 down the bank and entered the water.  24 And later she spoke about young women who were  25 gathering berries by the lake, and that eventually  2 6 when the men arrived at the lake they found where the  27 women had been berry picking, and the lake had risen  28 considerably, and they felt that their sisters were  29 drowned, and she identified that lake as Seeley Lake.  30 Now, Your Lordship will be able to refer back to the  31 adaawk, and there will be other accounts of it told  32 later in the -- or referred to Your Lordship according  33 to the written records of the adaawk, but it's on the  34 basis of this adaawk that Seeley Lake will be  35 described by Dr. Mathewes.  36 It's for this purpose that we are tendering the  37 evidence.  It's not going to be apparent to you  38 otherwise, without my explanation as to why we are  39 doing environmental reconstruction at that location or  40 at all within the claims area.  41 THE COURT:  You are right.  I would not have guessed.  42 MS. MANDELL: I didn't think so.  43 THE COURT:  But I am troubled by your reference to volume 11.  44 We surely didn't get to Mary Johnson in the first 11  45 days of the trial, did we?  4 6 MS. MANDELL:  Apparently we did.  47 THE COURT:  I am sure Mrs. MacKenzie was in the box longer than 9066  R. W. Mathewes (for Plaintiffs)  In chief by Ms. Mandell  1 11 days.  2 MS. MANDELL:  We only think that.  3 THE COURT:  Go ahead.  4 MS. MANDELL:  5 Q   Dr. Mathewes, I would like you to turn to Tab 8 of the  6 witness brief, and there, if you could turn to the  7 last page of that document, I would ask you whether or  8 not you can identify your signature as having signed  9 this agreement for consultant services identified in  10 that tab.  11 A   Yes, that is my signature.  12 MS. MANDELL:   I would ask that this agreement be tendered as  13 the next exhibit.  14 THE COURT:  Any objection?  15 MR. WILLMS:  I don't have any objection, My Lord.  16 THE COURT:  All right.  Next exhibit.  17 THE REGISTRAR:  Be Exhibit 778.  18  19 (EXHIBIT 778 - TAB 8 - AGREEMENT FOR  20 CONSULTANT SERVICES - NOVEMBER 5, 1985)  21  22 MS. MANDELL:  23 Q   Now, at paragraph 2 of the agreement you there were  24 asked and you agreed to take on certain tasks.  Are  25 the tasks, which are set out at paragraph 2 of that  26 agreement, what in fact you then sought to perform?  27 A   Yes, that was my original intent, especially under  28 part A.  That was ultimately altered somewhat, in  29 light of what I found at Seeley Lake, but certainly  30 that was my intention.  31 Q   And I'll get into the alterations shortly, but I would  32 ask you why did you agree to take on this work?  33 A  Well, the whole claims area in the Seeley Lake region  34 is an area for which we have no information, no  35 current information at all on postglacial vegetation  36 and forest development, and since my main research  37 programme at the university over the last -- since  38 1975 has been to work on the whole problem of  39 postglacial vegetation change, forest development and  40 associated environmental changes, I just saw this as  41 an opportunity to basically get funding to do some  42 work that will add to my overall research programme.  43 Q   All right.  And you mentioned that there was some  44 changes later with respect to what you did do that  45 aren't spelled out in this paragraph.  Could you  46 explain either what you did do or what you didn't do,  47 as reflected from paragraph two? 9067  R. W. Mathewes (for Plaintiffs)  In chief by Ms. Mandell  1 A   Paragraph two, part A.  The main purpose again was to  2 take two sediment cores from Seeley Lake, and the way  3 it is stated here is that I was going to use one core  4 for pollen analysis, and the other one for macrofossil  5 analysis, because the intent was here to look for  6 water level changes.  So I required a shallow water  7 core near the edges that might tell me something about  8 water level changes, and a deep water core, which is  9 the optimum one for pollen analysis.  As it turned out  10 ultimately, when I took the deep water core I found  11 the presentation of a clay band, an unusual clay band,  12 which struck me as indicating some sort of a  13 disturbance in the lake sediment, which I thought at  14 that time might be a damming event or a rise in water  15 level in Seeley Lake.  So I ultimately focused my  16 macrofossil analysis on the same core in which I did  17 the pollen analysis.  18 Q   All right.  Thank you.  And as a result of your work  19 did you produce a report to the Tribal Council?  20 A   Yes, I did.  21 Q   And if you could turn to Tab 2 of the brief, I would  22 ask you to identify whether or not this is the report  23 that you produced.  24 THE COURT:  Before you get to that, do I understand that you  25 only took one core?  26 THE WITNESS:   No.  No.  I took two cores, but in terms of the  27 time, much of the work in the laboratory is very time  28 consuming, and I switched doing the macrofossil work  29 to the same core in which I did the pollen, and didn't  30 do anything with the shallow water core beyond dating  31 it and looking at its stratigraphy or its layering of  32 sediments.  33 THE COURT:  All right.  Thank you.  34 MS. MANDELL:  35 Q   If you could then turn to Tab 2.  This is the report  36 that you prepared for the Tribal Council in response  37 to your contract, is that correct?  38 A   Yes, it is.  39 Q   And if you could turn to page 1 and page 2 of the  40 report where there you set out your major objectives  41 of the study.  And if I could read them:  42  43 "To provide a general description of the  44 postglacial history of vegetation and climate  45 for the study region using palaeobotanical  4 6 data."  47 906?  R. W. Mathewes (for Plaintiffs)  In chief by Ms. Mandell  1 Was that one of your objectives?  2 A   Yes, in broad terms it was, although I realize that  3 the amount of information would be very limited to  4 that.  5 Q   And if you could turn over to Figure 1.  Does the map  6 there where you've -- somebody has drawn a handwritten  7 line, does the area within the circle of that line  8 encompass the study region that you considered?  9 A   Yes, this area was based on a map that Richard  10 Overstall had given me to outline the approximate area  11 of the area of interest, so I transferred it to this  12 map.  13 Q   All right.  And I notice that on the map there is  14 actually five separate arrows identifying the first  15 study area -- first of all what do the arrows  16 represent?  17 A   The arrows point to the approximate locations of peat  18 bogs or lakes that have been studied either by myself  19 or by others in the published literature from which I  20 could use comparative data.  21 Q   All right.  And if you could turn first to the three  22 areas identified outside the study region, Atlin area,  23 Port Hardy and Marion Lake.  Why did you select to  24 identify those areas within your study?  25 A   These particular ones are radiocarbon-dated, and one  26 of the main problems with much of the older available  27 literature is that the dating of the actual events  28 recorded in the pollen data is not very good, because  29 radiocarbon-dating has only become widely applied in  30 the last few decades to cores of this type.  Therefore  31 I selected sites which one covered the whole  32 postglacial period, as far as we can determine it, and  33 that also had a level of modern pollen analysis  34 applied to them, and that also had radiocarbon dates  35 to allow us to find a time chronology better than for  36 most other sites.  37 Q   And for the purposes of your analysis, why were you  38 concerned with site areas outside the study area?  39 A  Well, since one of the areas I was to look at was  40 climatic change, the best way to look for evidence of  41 broad skill climate change is, of course, not to look  42 at just one site.  Climate by definition covers large  43 geographical areas, and by looking at a broad number  44 of sites, particularly along the coast where the work  45 had been done, I was hoping to find parallel events in  46 different sites which might indicate that climate was  47 an operative factor in the changes we saw. 9069  R. W. Mathewes (for Plaintiffs)  In chief by Ms. Mandell  1 Q   And if you could look at your two study sites within  2 the study region.  Did you do -- actually I think  3 I'll -- I think I'll -- with reference to this  4 question, turn you to pages two again of your report.  5 And in the third line of the first full paragraph on  6 page 2 you say:  7  8 "Both sites are in areas known to be of  9 archaeological significance, so that the data  10 might be readily compared with archaeological  11 and ethnographic information."  12  13 My question to you --  14 MR. WILLMS:  I object to that statement, My Lord, and the reason  15 why I object to that statement is that this person has  16 not been qualified as an archaeologist.  This person  17 has not been qualified as an anthropologist.  He's not  18 qualified to say what is significant or what is  19 insignificant in the world of anthropology, and my  20 friend didn't tender him for that.  21 MS. MANDELL:  I still don't tender him for that.  I want to find  22 out if this is a fact he relied upon or an assumption,  23 or whether or not it's within his area of knowledge.  24 MR. WILLMS:  If he wants to change that to say "I assume that  25 both sites are ..."  26 MS. MANDELL:  Let me ask the question.  27 MR. WILLMS:  It's an objection that I have got, My Lord, and  28 it's a written document that my friend is seeking to  29 tender here.  30 MS. MANDELL:  My Lord, my question was going to be --  31 THE COURT:  Ms. Mandell, I think we ought to just turn the  32 decimal level down substantially.  We are at the early  33 stage of this, and I think we have to be a little more  34 understanding.  I think that we have to stop  35 interrupting each other.  Let's start again.  Would  36 you be good enough, Mr. Willms, to restate your  37 objection.  38 MR. WILLMS:  My Lord, my objection there is that that is a  39 statement of fact.  Both areas -- both sites are in  40 areas known to be of archaeological significance, so  41 that the data might be readily compared with  42 archaeological and ethnographic information.  There is  43 no evidence from any other witness, no archaeologists  44 yet that this witness can be relying on here to say  45 that both sites, especially Rasberry Bog, is known to  46 be of archaeological significance, nor that  47 ethnographic information has any relevance to the 9070  R. W. Mathewes (for Plaintiffs)  In chief by Ms. Mandell  1 archaeology of the two sites, and as long as that was  2 stated as an assumption, rather than a statement, I  3 have no difficulty with it, but it's made as a  4 statement, as an allegation of fact that both areas  5 are archaeologically significant for apparently both  6 archaeological and ethnographic reasons.  7 Now, this witness, as I said earlier, has not been  8 qualified as an anthropologist, he's not been  9 qualified as an archaeologist.  My friend seeks to  10 tender him in respect to climate change and  11 environment, and that's beyond what she sought to  12 tender him in, and that is my objection.  13 THE COURT:  All right.  Before you reply, Ms. Mandell, Ms.  14 Koenigsberg?  15 MS. KOENIGSBERG:  I have nothing to add.  16 MS. MANDELL:  My Lord, I am going to ask him whether or not this  17 is an assumption that he is making, and he can advise  18 us accordingly.  19 THE COURT:  All right.  That may solve the problem.  2 0 MS. MANDELL:  21 Q   With respect to this sentence on page 2, did you  22 assume that these sites are known to be of  23 archaeological significance?  24 A   Yes, based on discussions with Dr. Fladmark at Simon  25 Fraser University and discussions with -- at the  26 Hazelton workshop with archaeologists or people  27 working on the archaeological history of this area.  28 And I just assumed that there was some archaeological  29 interest in the Seeley Lake area.  30 Q   All right.  And who is Dr. Fladmark?  31 A   Dr. Fladmark is a professor of archaeology at Simon  32 Fraser University who in fact gave me the materials he  33 collected at Rasberry Bog near Mount Edziza in order  34 so I could conduct a pollen analysis on them, because  35 he wanted to use that information for his  36 archaeological purposes in that area.  37 Q   And if I could turn you to page four of your report,  38 the last paragraph.  Did you also assume that Rasberry  39 Pass was an important native trade route for obsidian,  40 and was also part of the historic telegraph trail  41 connecting the Klondike goldfields with British  42 Columbia --  43 THE COURT:  Sorry, where are you?  44 MS. MANDELL:  I'm at page four at the bottom.  45 THE COURT: All right.  46 THE WITNESS:  Yes.  That is based also on a draft of a  47 publication that Fladmark gave me at that time based 9071  R. W. Mathewes (for Plaintiffs)  In chief by Ms. Mandell  1 on what preliminary evidence he had found in this  2 area.  That report was later published and is cited in  3 the references as Fladmark (1986).  4 THE COURT:   What does obsidian mean?  5 THE WITNESS:   Obsidian is volcanic glass, a very fine grain  6 glassy volcanic rock that is very good for making  7 arrowheads, spearheads and other types of  8 archaeological tools.  9 THE COURT: Okay.  10 MS. MANDELL:  11 Q   If I could now turn you back to page 2 and identify  12 whether or not the second objective of your study set  13 out there is accurate:  14  15 To determine if evidence of past landslide  16 activities could be found and dated in the  17 sediments of Seeley Lake near Hazelton, and to  18 provide the first data on vegetation and  19 climatic history for the Hazelton variant of  20 the interior cedar-hemlock biogeoclimatic  21 zone, using pollen and plant macrofossil  22 analysis of Seeley Lake sediments."  23  24 A   Yes, that was my objective.  25 Q   All right.  26 THE COURT: Did you carry that out?  27 THE WITNESS:  Yes, I did.  2 8 MS. MANDELL:  29 Q   All right.  I am going to turn you now to page three  30 of your report under literature review.  You mention  31 in the first full paragraph under literature review  32 that you -- that you consulted certain sources to  33 complete the available data regarding  34 radiocarbon-dating pollen diagrams and postglacial  35 climatic history for the study area, and thereafter  36 you mention the investigations of Anderson (1970),  37 Miller and Anderson (1974), Banner and Pojar (1983),  38 Hebda (1983), yourself (1985), Hebda again for 1982  39 and Craig of 1981.  Were there any other writers, to  40 your knowledge, who had made reference with respect to  41 the study area to the matters that you were seeking to  42 research?  43 A   The only other sources I could find were some  44 publications published by H.P. Hansen in the 1940's  45 and 50's, before radiocarbon-dating was as widely  46 used, and the techniques used at that time were also  47 very rudimentary by modern standards.  And there are 9072  R. W. Mathewes (for Plaintiffs)  In chief by Ms. Mandell  1 some reports which I believe would indicate some  2 evidence of vegetation change east of Prince George or  3 along the Alaska Highway marginally in the eastern  4 part of the region, but I found they were just not of  5 a standard that I could compare to the modern data.  6 Q   And what was the purpose for your conducting this  7 review of the literature?  8 A  Again basically just to find out what changes that I  9 might find in Seeley Lake or Rasberry Bog might be  10 correlated with changes elsewhere.  In other words,  11 again looking for the possibility that climatic  12 changes might show up that I could speak to with  13 respect to my second objective of reconstructing in  14 Seeley Lake area environment.  15 Q   All right.  Now, I am going to turn first to Seeley  16 Lake and the activities and studies which you did  17 there.  And for that, if I could ask you to turn to  18 page 12 of your report.  In the first paragraph of  19 page 13, which starts at the bottom of page 12 and  20 then throughout page 13 and to the beginning of page  21 14, there you are describing the environmental setting  22 of Seeley Lake, and I would like you to identify  23 whether you were there yourself or whether you are  24 relying upon others description of the environment for  25 the information which you set out.  26 A   No, clearly I was at Seeley Lake on several occasions.  27 Once to take cores and twice simply just in passing,  28 where I stopped to take photographs and look at the  29 terrain.  30 Q   All right.  And at the top of page 13 you make  31 reference there to the climate around Seeley Lake and  32 the zones, and there you refer to Haeussler, a 1983  33 publication.  Is it common for you in the work you do  34 to refer to any of the literature regarding what's  35 been written about climate in an area that you are  36 studying?  37 A  Very much so.  Because climate is a major determining  38 factor of the vegetation composition, whether forest  39 or otherwise, and therefore climate is always part of  40 the background information, as required for the study  41 area.  In order to be able to interpret what changes  42 might have occurred, you really have to be aware what  43 the current conditions are, and certainly climate is  44 an important aspect of the current conditions.  45 Q   And from your review of the literature were there any  46 sources that disagreed with Haeussler in the  47 description of climate of that area? 9073  R. W. Mathewes (for Plaintiffs)  In chief by Ms. Mandell  1 A   No.  I relied on Haeussler et al, which at that  2 time -- 1983, which at that time was an unpublished  3 manuscript, which has subsequently been published, and  4 because it related directly to the area in question I  5 didn't seek to look at other sources.  This source  6 seemed to be the best most up-to-date compilation of  7 available information.  8 THE COURT:  What in your terminology is a variant?  9 THE WITNESS:   Well, it's not my terminology, but a Hazelton  10 variant, as described in -- by the foresters, it's a  11 sub-region where the vegetation composition is  12 distinctly different from the main biogeoclimatic zone  13 that dominates the area, so it suggests that the  14 vegetation and probably the climate is somewhat  15 different than for the bulk of the surrounding area.  16 MS. MANDELL:  All right.  17 THE COURT:  Just a moment.  Just let me see if I understand  18 that.  So this other scholar, Haeussler, has  19 established, if I can use that word, a Hazelton  20 variant?  21 THE WITNESS:  I believe that Haeussler, together with a number  22 of others -- it's et al.  I think there are a number  23 of authors on that publication from the B.C. Ministry  24 of Forests in part, and they have established this  25 Hazelton variant as a distinctive type of vegetation  26 in that area.  27 THE COURT:  Is ICHg3 another designation for the Hazelton  28 variant?  29 THE WITNESS:   Yes, it is.  It is a shorthand form.  ICH refers  30 to interior cedar hemlock, and the G3 is their own  31 designation for this particular variant.  32 THE COURT:  What does the "I" stand for?  33 THE WITNESS: Interior.  34 THE COURT:  Cedar, hemlock, G3.  And how big an area is the  35 Hazelton variant?  36 THE WITNESS:   I couldn't say in terms of area.  It's a  37 relatively restricted area around -- centered around  38 Hazelton at the lower elevations.  39 THE COURT:  All right.  Thank you.  4 0 MS. MANDELL:  41 Q   At page 14 at the first full paragraph you talk about  42 an extensive marsh has developed along the shallow  43 south side of Seeley Lake.  Did you observe that  44 marsh?  45 A   Yes, in the course of taking the cores of the lake  46 bottom mud that I used for pollen analysis, I ran a  47 transect across the lake to measure water depth and to 9074  R. W. Mathewes (for Plaintiffs)  In chief by Ms. Mandell  1 look at the vegetation there, and actually took my  2 boats right into the marsh, and that is the site where  3 I took a core later on.  4 Q   All right.  And if you could turn back to Figure 3,  5 which is on the page just before page thirteen.  Could  6 you first of all identify what Figure 3 represents.  7 THE COURT:  I haven't found Figure 3 yet.  8 MS. MANDELL:  It's between pages thirteen and fourteen.  9 THE COURT:  All right.  Yes, thank you.  10 THE WITNESS:  Figure 3 is based in part on a tracing from an  11 aerial photograph of the actual disposition of marsh  12 and the outlines of Seeley Lake itself.  The debris  13 flow indicated -- the position of this debris flow is  14 taken from a map supplied to me by Dr. Gottesfeld  15 early on in the investigations, and that led me to in  16 fact to doing this work on Seeley Lake to see if this  17 particular debris flow could have influenced the water  18 levels in Seeley Lake in the past.  19 MS. MANDELL:  20 Q   And is this map of Figure 3 identical to the map  21 provided to you by Dr. Gottesfeld, or have you added  22 anything to it?  23 A   No, it's not identical at all.  I have just outlined  24 the debris flow in very general terms.  His map was  25 much more detailed than mine.  And the actual  26 disposition of the marsh and the position of the  27 coring sites, of course, are things that I added  28 myself.  29 Q   All right.  Now, you mention at page 14, and I am  30 reading from the paragraph which begins:  31  32 "An extensive marsh ..."  33  34 You say:  35  36 "This debris flow ..."  37  38 And you are referring to the debris flow that you  39 just showed us on Figure 3.  40  41 "... which emanated from the Chicago Creek  42 watershed, damned Seeley Creek and backed up  43 its waters into the lake.  In doing so, it  44 also flooded adjacent forests, thus creating a  45 wooded swamp environment."  46  47 And you refer to: 9075  R. W. Mathewes (for Plaintiffs)  In chief by Ms. Mandell  1  2 "Investigations by Allan Gottesfeld have dated  3 this damming event at 3580 plus or minus 150  4 before present years ago."  5  6 Is that correct?  7 A   Yes.  8 Q   Was this information -- and when I am saying this  9 information, I am referring to all of the passages  10 which I have just read to you.  Was that provided to  11 you, that information, by Dr. Gottesfeld?  12 A   Not the whole passage.  The descriptions of marshes  13 and marshland complex I saw myself on the photographs  14 and while I was in the field, but the reference to the  15 debris flow and the damming of Seeley Creek is based  16 on what I learned from Dr. Gottesfeld.  I am assuming  17 that he was correct in identifying that as a  18 landslide.  19 THE COURT: What does Beta 13636 mean?  20 THE WITNESS: This number, Your Lordship, is a radiocarbon-date,  21 and the standard convention when reporting it is to  22 give the actual age and years before present with the  23 era, and in brackets Beta refers to the laboratory  24 that actually did the dating of the sample.  So this  25 is Beta sample number 13636, and this is generally  26 quoted to identify every data as being unique in the  27 literature, if something like this were to be  28 published.  29 Q   Did you assume the fact of the landslide as told to  30 you by Dr. Gottesfeld as correct?  31 A   Yes.  I had my own air photographs, and I certainly  32 could see that there was a large lobe, a fan deposit  33 which appeared to me to have diverted the creek.  34 That's clearly visible on their photographs, but  35 whether that was particularly related to any single  36 event, I really couldn't say.  But clearly there was  37 evidence of something coming down from the Chicago  38 Creek watershed forming a fan, and it appears to have  39 dammed the drainage from Seeley Lake.  40 Q   And apart from your personally checking out air  41 photographs with respect to the fact of the landslide,  42 did you do anything else to satisfy yourself that  43 there was a landslide deposit there prior to your  44 actually doing the sample in the lake?  45 A   No.  Beyond the air photo interpretation and just  46 stopping on the road and looking at the site, and I  47 couldn't assume that this was one landslide event. 9076  R. W. Mathewes (for Plaintiffs)  In chief by Ms. Mandell  1 That's certainly not the intent here.  There is a  2 large fan which could well have accumulated over long  3 periods of time, so I didn't know at that time that  4 this might represent one event or a long period of  5 accumulation.  All I could see that there was a fact  6 of a fan there and that it appeared to have blocked  7 the drainage of Seeley Lake.  8 Q   Prior to the discussion and the sampling you did and  9 the results of it, I would like to ask you whether or  10 not you did anything or didn't do anything which you  11 ordinarily would have done to test your -- test your  12 point as a result of your having been told by Dr.  13 Gottesfeld that there was a damming event according to  14 him at 3580 before present years ago.  15 A   I think, yes, I would say the event I referred to  16 earlier where I switched my original proposal to doing  17 a macrofossil analysis on one core and a pollen  18 analysis on another core, when I had taken the cores  19 and saw that there was a distinctive clay band in the  20 deep water core in Seeley Lake, I assumed that this  21 could well have been an event of damming, and that  22 this might represent the event that Dr. Gottesfeld was  23 referring to in his report.  So therefore I switched  24 my emphasis to try and analyze that core in detail in  25 order to see if I could get any more information that  26 would allow me to discern whether this clay band in  27 Seeley Lake might in fact be the damming event that  28 Dr. Gottesfeld had already identified.  29 Q   All right.  I wonder if you could explain to the court  30 in simple terms that which you have set out at page 14  31 to 17 of your report, and that is exactly when you  32 went to see Seeley Lake, what did you do?  What was  33 your methodology there?  34 A   Okay.  I will be as brief as I can.  Basically what is  35 required for this analysis is a core of the lake  36 sediments, and in this case I was looking for two  37 cores of lake sediment.  One near the edge of the lake  38 where water fluctuations might be detectable by some  39 means, and another core from the deepest part of the  40 lake near the outlet area, which I would use for my  41 pollen analysis.  And it's generally acknowledged in  42 my field that deep water lake deposits are the best  43 source to get a continuous record of pollen and  44 therefore of the vegetation history around that site.  45 So the first physical thing that was done, beyond a  46 general reconnaissance of the area, was to get some  47 boats, inflate boats and take my coring equipment, 9077  R. W. Mathewes (for Plaintiffs)  In chief by Ms. Mandell  1 which is a sampler known as a Livingston Sampler  2 standard instrument.  We would take these boats out on  3 the lake.  And first I would sound across the lake,  4 which I did using a sounding marker and a chain to get  5 a profile of the depth across the lake.  At the  6 deepest point of that transect I would have chosen a  7 coring site, and that is where core A was taken in the  8 deepest part under approximately 2.45 meters of water.  9 THE COURT:  2. —  10 THE WITNESS:  45.  Also 2 and-a-half meters of the water.  That  11 was the deepest point I could find in this area near  12 the outlet.  So I obtained that core.  Now, the core  13 is taken by starting at the top of the mud at the  14 bottom of the lake, pushing a coring instrument down  15 on rods that we are holding in the boat, lowering down  16 to the sort of mud water interface, then this tube is  17 pushed down, which takes a core an approximate one  18 meter length.  So I would push it down to get the  19 first meter.  That would be hauled up into the boat,  20 extracted and saved by wrapping in foil and stored in  21 a box that wouldn't be disturbed.  Then you would go  22 down the same hole, which is marked by having a large  23 diameter aluminium casing in the sediment.  I would go  24 down the same hole and take the next meter down and  25 follow this process until I ended up at the bottom of  26 the lake where I couldn't penetrate any further, which  27 in this case turned out to be a gravel layer that this  28 hand-operated sampler just wouldn't penetrate.  So the  29 complete core from the top to the bottom would be  30 recovered, wrapped and stored and ultimate transport  31 back to laboratory.  32 THE COURT:  How many meters or portion of meters of core did you  33 recover?  34 THE WITNESS:   I think those are laid out in one of the later  35 figures, the details.  It's just over four meters.  I  36 could refer you to Figure 6, perhaps.  The main core  37 was four and-a-half meters down.  Four and-a-half  38 meters of mud.  There are some technical terms for it,  39 but in effect it's a mud, and that ended up in clay at  40 the very base.  41 THE COURT: Okay.  42 THE WITNESS: In fact Figure 4 would be the best one, Your  43 Honour.  It shows the two cores and the depth.  The  44 first core labelled core A in Figure 4 was just around  45 four and-a-half meters or four hundred and fifty  46 centimeters deep, and the core B, which was taken at a  47 different locality in shallower water right in a 907?  R. W. Mathewes (for Plaintiffs)  In chief by Ms. Mandell  1 cattail marsh at the edge of the lake, that core was  2 somewhat longer, just under 5 meters in length.  And  3 those were then inspected as they were pushed out of  4 this sampling tube.  And as I extracted core A, in the  5 second segment down there was this clear band which I  6 have labelled in Figure 4 as clay one.  These  7 sediments labelled here as fine gyttja, which is a  8 Swedish term for a dark lake mud.  These fine gyttjas  9 were interspered with this clay band, which is very  10 distinctive and easily visible, and led me to believe  11 that this might be due to a damming event or some  12 other disturbance in the watershed of Seeley Lake.  13 And I found a second clay band, which wasn't as  14 prominent or as distinctive, marked clay two in Figure  15 4 at around 380 centimeters down in the core.  16 MS. MANDELL:  My Lord, perhaps I could ask you to turn to the  17 photographs which are between pages 18 and 19 of the  18 report which you have.  19 Q   I think that Dr. Mathewes is referring to the clay  20 bands that are identified in those photographs.  Is  21 that correct, doctor?  22 A   Yes, I am.  23 Q   And when you saw the clay band that's indicated there,  24 what did that band indicate to you?  25 A  Well, such bands do occur in lake sediments, and they  26 usually indicate some form of disturbance.  It's a --  27 usually an in-washing of mineral matter.  The lighter  28 colour is due to portions of silt and clay which are  29 lighter in colour than the dark organic residues.  30 Therefore this suggested input of mineral matter would  31 suggest some sort of disturbance in the immediate  32 watershed.  That's reflected in the bottom sediments  33 accumulating on the lake.  34 Q   And did you do any tests to attempt to determine your  35 best guess as to what that disturbance actually had  36 been?  37 A   Yes.  Although I sampled -- perhaps I am mixing  38 things.  But I would have sampled this whole core A,  39 which is shown in Figure 5 here or these coloured  40 photographs.  This whole core was sampled for pollen  41 analysis, and you can see, My Lord, in both  42 photographs there is a hole in the core which had been  43 where I would have extracted a small plug of one cubic  44 centimeter of this mud that I would be ultimately  45 using for pollen analysis, and you see three holes  46 around clay one and one hole at the clay two boundary.  47 If fact I was sampling the whole core at ten 9079  R. W. Mathewes (for Plaintiffs)  In chief by Ms. Mandell  1 centimeter intervals, every ten centimeters from the  2 top to the bottom, but at clay one I also took a  3 sample right out of the clay and immediately below the  4 clay and immediately above the clay, just to see if I  5 could detect any change in the pollen or in the  6 macrofossils around this band which might lead me to  7 some reason as to why this clay band is here, and what  8 the disturbance might have been that caused it.  9 Q   And did you also take a sample for the purpose of  10 carbon-dating it?  11 A   Yes.  Simply because this clay band, I suspected,  12 based on this depth in the core, might be close to  13 around 3500 years, which was Allan Gottesfeld's date  14 on the debris flow.  This was clearly a locality that  15 I should date, in order to see if the time for this  16 event was the same as the time of Dr. Gottesfeld's  17 event.  So -- so basically, yes, I did take a segment  18 around clay one, including most of this clay band, and  19 submitted it to Beta analytic for radiocarbon-dating  20 to determine the age of that particular event.  21 Q   So in summary you applied carbon-dating testing,  22 macrofossil analysis and pollen analysis to attempt to  23 determine what the cause of this disturbance was?  24 A   Yes.  Correct.  25 Q   If I could turn you to tab four of this brief.  There  26 set out are first a letter from Murray Tamers to  27 yourself of February 21st, where he encloses the  28 results of the sediment samples which are set out in  29 the page following the letter.  Could you identify  30 whether tab four is the results given to you by Beta  31 analytic indicating the carbon-dating of the sample  32 that you have just described?  33 A   Yes, this is the report I received from Beta analytic  34 with regard to Seeley Lake samples that I submitted to  35 them.  36 MS. MANDELL:   I ask that that be marked as the next exhibit.  37 MR. WILLMS:  No objection, My Lord.  38 THE REGISTRAR:  The letter and the report?  39 MS. MANDELL:  Yes.  40 THE REGISTRAR:  Tab four be exhibit number 779.  41  42 (EXHIBIT 799 - LETTER FEBRUARY 21, 1986 FROM  43 BETA ANALYTICAL INC. WITH REPORT OF RADIO  4 4 CARBON ANALYSIS)  45  4 6 THE COURT:  Thank you.  47 MS. MANDELL: 9080  R. W. Mathewes (for Plaintiffs)  In chief by Ms. Mandell  1 Q   And could you turn to the second sheet in that tab and  2 explain to the Court what conclusion you draw with  3 respect to the age of the clay band sampling that you  4 submitted to the radio -- to be radiocarbon-dated?  5 A   The clay band that was shown in Figure 5, the upper  6 clay band marked clay one, that sample is in the  7 middle of that list labelled Seeley Lake core one, 141  8 to 146, which is the centimeters of the depth in the  9 core.  And I might advise the Court that the whole  10 segment of core would have been cut and submitted and  11 destroyed and burned in order to develop this sample,  12 so nothing would remain of that.  And that age that  13 was reported was 3,380 plus or minus 90 years before  14 the present, which is what "BP" means, which is taken  15 by international convention to mean 1950.  And that --  16 THE COURT: Present is 1950?  17 THE WITNESS:  According to the standard scheme, yes.  And the  18 second clay band which I -- because it also suggested  19 some sort of a disturbance, I also radiocarbon-dated,  20 and that one is the second from the top of the list,  21 Seeley Lake core one, 385 to 390.  And it was dated at  22 6,330 plus or minus 160 years before the present.  23 THE COURT:  I'm sorry?  24 THE WITNESS:   Second from the top labelled Beta.  25 THE COURT:  Oh, yes.  Your photograph shows 385 to 386.  26 THE WITNESS:  385 to 386.  27 THE COURT:  Does that correspond?  28 THE WITNESS:  That would correspond with that.  2 9 THE COURT:  All right.  30 MS. MANDELL:  And if you could turn now back to Figure 4 of your  31 report, which is found at page -- between pages 16 and  32 17.  33 THE WITNESS:  Before I do that, I should probably advise Your  34 Honour that the difference in depth here is that the  35 clay band was found in only a portion of that sample.  36 The problem is with standard radiocarbon-dating like  37 this, you need a reasonably large amount of sample in  38 order to date.  Therefore you can't date simply just  39 the clay, because it's very low in organic matter, you  40 also have to date some of the organic matter around  41 it.  And this is why the depths don't correspond.  42 THE COURT:  All right.  Turning to where, Ms. Mandell?  43 MS. MANDELL:  I'm sorry?  44 THE COURT:  Where are you turning to?  45 MS. MANDELL:  Figure 4.  It's between pages 16 and 17.  4 6 THE COURT:  Yes.  Thank you.  47 MS. MANDELL: 9081  R. W. Mathewes (for Plaintiffs)  In chief by Ms. Mandell  1 Q   Could you explain to the Court what Figure 4  2 represents?  3 A   Figure 4 represents a summary of the depth and the  4 radiocarbon-dates and the sediment stratigraphy or  5 layering for the two cores I took at Seeley Lake  6 labelled core A in the middle of the lake and core B  7 at the edge of the lake in the marsh.  8 Q   And the picture, the photograph that you had  9 identified earlier, showing the clay band, is that  10 reflected at the place where you have marked clay one  11 3380 plus or minus 90 Beta 15474, 3726 calender years?  12 A   Yes, that is the same clay band shown in the colour  13 photograph earlier.  And that just shows the  14 relationship of the radiocarbon-date to the clay band.  15 Q   All right.  Now, you also applied macrofossil and  16 pollen analysis to the testing of this area, and if  17 you could advise, based upon these tests, do you  18 favour a conclusion as to what caused the disturbance  19 in Seeley Lake?  20 A   Yes, there are a number of possibilities for such clay  21 bands in the lake, but looking at all the evidence  22 that I could find, I would feel very strongly that  23 this clay band was formed by a sudden rise in water  24 level at the time of around 3,380 years ago, which  25 caused mineral matter to be washed into the lake and  26 deposited as part of clay one.  27 Q   And is that sudden rise of water level disturbance  28 consistent with a landslide?  29 A   It would be consistent with a landslide damming the  30 outlet, certainly.  31 Q   All right.  If you could turn to Figure 6, which is  32 found at -- between pages 20 and 21.  33 A   Yes.  34 Q   Can you identify for the Court the evidence that you  35 relied upon as reflected in Figure 6 to form the  36 conclusion that there had been a sudden water level  37 disturbance consistent with the landslide?  38 A  As you can see, clay one is marked by a dotted line in  39 the top of this diagram.  This diagram represents  40 macrofossils that were screened out of the sediment  41 sections, and the whole core A was screened to extract  42 any seeds or larger fragments out of it, and those  43 were identified and counted.  And there is a very  44 abrupt shift in a number of materials that came up in  45 the screens right above clay one; in other words,  46 right after its deposition.  And I might draw your  47 attention to the bars labelled Betulaceae seeds.  Now, 9082  R. W. Mathewes (for Plaintiffs)  In chief by Ms. Mandell  1 Betulaceae is the family which includes birch and  2 alder, and most of these are probably birch seeds, but  3 many of the diagnostic features are poorly preserved.  4 They have very thin wings which tend to break off.  5 And also next to it the curve marked Betula seeds.  6 Betula is a Latin name for birch.  And right above  7 this clay one band is the largest peak of birch seeds  8 in the whole core, with the exception of the very base  9 of the core in the early stages around 9,000 years  10 ago.  There is the largest concentration of birch  11 seeds found right on top of clay one, including  12 Betulaceae as well, which includes both alder and  13 birch seeds, but mostly almost all birch, but they are  14 labelled Betulaceae because I couldn't definitely say  15 that they were birch as opposed to alder.  But both of  16 these are trees that would grow around the lake shore,  17 and suggest to me that this influx of seeds right on  18 top of this clay band suggests that a water level rise  19 could have washed these seeds from the forest floors  20 at the edges and deposited them in the lake.  21 The same is true to a lesser extent of the column  22 marked Cyperaceae seeds.  Cyperaceae is the Latin name  23 for the sedge family.  Sedges are grass-like plants  24 common of --  25 THE COURT: Oh, I'm sorry.  This is all core A, is it?  26 THE WITNESS:   It's all core A.  This is a listing showing all  27 the different --  2 8 THE COURT:  What do you call upland plants?  29 THE WITNESS:  Upland plants, these are plants that would not be  30 growing in the water or -- so these are upland forest  31 species.  32 THE COURT:  Yes.  33 THE WITNESS:  So although birch seeds grow close to the waters  34 edge, they are growing on land.  35 THE COURT:  Yes.  36 THE WITNESS:   The wetland aquatic plants are those that are  37 growing in the marsh or in the open water itself.  So  38 simply the increase associated with clay one of upland  39 seeds, it is suggested that something was washing  40 these seeds in from the edge of the lake, which would  41 be consistent with a sudden rise in water level.  42 The Cyperaceae seeds, which are part of this wetland  43 component, these are normally plants that grow in  44 shallow lake edges and marshes, and there is a small  45 increase in sedge seeds, although I wouldn't put too  4 6 much emphasis on that one.  47 But probably most important, in terms of distinctly 9083  R. W. Mathewes (for Plaintiffs)  In chief by Ms. Mandell  1 different event than for the rest of the core, would  2 be on the extreme right-hand side, the column marked  3 Ceratophylium, leaf remains.  Ceratophylium is a genus  4 commonly called coontails.  It's an aquatic floating  5 plant that floats in shallow waters just under the  6 surface, and in terms of the macrofossil remains that  7 came out on the screens, I had no remains of  8 Ceratophylium at all until clay band one was  9 deposited, and then immediately thereafter there was a  10 huge concentration of this plant remains that were  11 suddenly present at the coring site.  And beyond  12 Ceratophylium remains on the right-hand side, the  13 total amount of organic plant residue that was  14 recovered from the screens is vastly greater right  15 above clay one than anywhere else in the core.  In  16 other words, there is a large accumulation.  I have  17 marked in here 120 millilitres.  So out of  18 approximately 200 millilitres of sample, 120  19 millilitres of that would be just plant remains, a  20 very much higher proportion than for any other point  21 in the core.  This suggests that something was  22 bringing a lot of plant debris and detritus into the  23 lake, which settled to the bottom, and that again is  24 consistent with a landslide disturbance of the water.  25 THE COURT:  All right.  Should we adjourn 'til two o'clock?  2 6    MS. MANDELL:  Yes, My Lord.  27  2 8 (PROCEEDINGS ADJOURNED FOR THE LUNCHEON  29 RECESS)  30  31  32 I HEREBY CERTIFY THE FOREGOING TO  33 BE A TRUE AND ACCURATE TRANSCRIPT  34 OF THE PROCEEDINGS HEREIN TO THE  35 BEST OF MY SKILL AND ABILITY.  36  37    3 8 LORI OXLEY  39 OFFICIAL REPORTER  4 0 UNITED REPORTING SERVICE LTD.  41  42  43  44  45  46  47 9084  R. W. Mathewes (for Plaintiffs)  In chief by Ms. Mandell  1 (PROCEEDINGS RECONVENED AT 2:00 p.m.)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Ms. Mandell.  5 MS. MANDELL:  Thank you.  We were still on figure 6, my lord.  6 THE COURT:  Yes.  7 MS. MANDELL:  8 Q   Dr. Mathewes, you were explaining the evidence that  9 you were able to advise us, which was reflected on  10 this figure, which allowed you to form the opinion  11 that you favoured your conclusion regarding the clay  12 band was as a result of this sudden water level rise,  13 inconsistent with the landslide.  And I'm asking you  14 whether or not you've finished identifying for the  15 court the evidence which is reflected on this figure?  16 A   I think the important information regarding the clay  17 band origin is dealt with.  I could discuss other  18 aspects if your lordship would like me to, but --  19 THE COURT:  Why are the bar graphs on the two right-hand columns  20 of figure 6 white and the others black, is there some  21 significance to that?  22 THE WITNESS:  Well, the one on the right because it's just  23 unidentifiable debris, really, I've marked it in that  24 way.  And the ceratophylium leaf remains simply to  25 identify.  All the other ones are qualitative.  26 THE COURT:  Now those terms, you are throwing them off as if we  27 know about them and the court reporter doesn't know  28 how to spell them.  29 THE WITNESS:  I'm sorry, your honour.  30 THE COURT:  And you just can't expect that much from us.  We've  31 been speaking Gitksan here for the last while, we  32 can't change that quickly.  33 THE WITNESS:  Well, the easiest answer is that for the column  34 marked "ceratophylium Leaf Remains", I've only  35 categorized the abundances in a qualitative way as  36 rare, common and abundant, whereas all the other ones,  37 shown in black, are in fact, actual, numerical values.  38 So to set them apart, I've not blackened them in.  And  39 the right-hand column marked "Screened Residue", I  40 could have blackened it in, but in thinking back, the  41 reason is probably because the large peak above the  42 clay band, I had to put in a number because it's such  43 a large value.  I didn't want to make the graph too  44 large, so I left it blank so I could write the number  45 120 in there.  46 THE COURT:  And what does rare, common and abundant mean?  Does  47 it mean that rare was found only at the levels shown 9085  R. W. Mathewes (for Plaintiffs)  In chief by Ms. Mandell  1 for rare?  2 THE WITNESS:  Yes.  And abundant would be those — the three  3 levels immediately above the dotted clay band were all  4 rated as abundant in a qualitative way.  The next one  5 up was marked common and the next one up was rare, and  6 from that point on there wasn't any.  7 THE COURT:  Yes.  8 MS. MANDELL:  9 Q   Based upon the showings that you were able to identify  10 in figure 6, do you have any opinion as to whether or  11 not this disturbance could have happened in either the  12 summer or the winter months?  13 A   I hadn't really thought about that before, but if I  14 were to --  15 MR. WILLMS:  Well, I object because I was searching my mind, my  16 lord, to see whether that was in here anywhere and  17 it's not, obviously, so I object.  No notice.  18 THE COURT:  Oh, I'm not sure that's something we should worry  19 about, is it, Mr. Willms?  Surely the purpose of the  20 Evidence Act is to give notice not of every word that  21 is going to be said but of the opinions that are going  22 to be expressed and the subject matter about opinions  23 to be expressed.  24 MR. WILLMS:  My lord, the difficulty is simply this:  I don't  25 know whether that difference is significant or not.  26 If it's significant, I haven't prepared to deal with  27 the significance of it.  If it's not significant, it's  28 irrelevant.  It's not in the opinion, so whether it  29 happened in the summer or the winter, if it's relevant  30 and significant, it should have been in the opinion,  31 and if it isn't relevant and significant, it's  32 inadmissible.  33 THE COURT:  Well that's treating this as a terribly antiseptic  34 and clinical investigation of the most minute kind,  35 isn't it?  The witness is telling us what he found and  36 then surely the question of whether it's capable of  37 any further explanation is -- ought not to be  38 precluded merely because it wasn't formally a matter  39 of specific notice, should it?  If what you -- if your  40 objection is well-founded Mr. Willms, it would seem to  41 me that the -- there would be no reason for the  42 distinction between a copy of the report and a  43 summary.  Surely, the fact that you can use a summary  44 instead of a report suggests that we are not to be  45 bound absolutely strictly to every -- strictly just to  46 the very words that are in the report and nothing  47 else. 9086  R. W. Mathewes (for Plaintiffs)  In chief by Ms. Mandell  1 MR. WILLMS:  Well, I just —  2 THE COURT:  And counsel, we might as well have untrained lawyers  3 or untrained persons as lawyers if we can't react to  4 the slightest unanticipated piece of evidence.  Where  5 is the skill in advocacy going?  There isn't any.  You  6 just become a functionary.  Surely, that is not the  7 role of counsel.  8 MR. WILLMS:  Well my lord, perhaps I'm operating at a bit of a  9 disadvantage, because the procedure we used in Emil  10 Anderson was simply the procedure -- and I know this  11 is a different trial, my lord, and there are different  12 rulings which I may not be aware of in respect of how  13 the evidence --  14 THE COURT:  This is the first expert witness we've had — no,  15 the second witness.  16 MR. WILLMS:  So if I'm unaware of that, I apologize.  17 THE COURT:  It's not a matter of being unaware and it's not a  18 matter of this trial or that trial, it seems to me  19 that was never the intention of the Evidence Act, that  20 the court would be so closely circumscribed that what  21 can be said by a witness in the box is open to  22 cross-examination, and if you are taken by surprise  23 and you need time to prepare for that, well then  24 that's a matter that could be -- surely, could be  25 dealt with separately.  But I don't think that that is  26 such a departure from the information contained in the  27 report that I should give -- that I should accede to  28 the objection.  2 9 MS. MANDELL:  30 Q   The question then stands whether or not, as a result  31 of the evidence that you were able to gather and set  32 out in figure 6, if you have any opinion as to whether  33 or not the disturbance could have occurred in the  34 summer or the winter months?  35 A   I would normally like to give something like that a  36 little more thought, but one thing does strike me.  37 When I visited Seeley Lake in the winter, January of  38 '86 -- I took some photographs at that time -- the  39 lake to me appeared to be frozen over, and in light of  40 the fact that one of the salient features of figure 6  41 is this large increase of ceratophylium leaf remains  42 above the clay layer, that's an aquatic plant that  43 lives submerged.  If the lake was frozen over, it's  44 hard for me to see how the rise in water level could  45 in any way disturb those, break them up and cause them  46 to float out into the middle of the lake.  So based on  47 that, I would probably take it that this event 9087  R. W. Mathewes (for Plaintiffs)  In chief by Ms. Mandell  1 occurred while the lake was not frozen over.  I don't  2 think I could specify any more than that.  3 THE COURT:  I don't follow that.  If the plants grow and float  4 under the surface?  5 THE WITNESS:  Um-hmm.  And the surface of the lake has ice cover  6 on it and something causes the water level to rise  7 above the ice level, perhaps things that are  8 underneath the existing ice cover aren't going to be  9 disturbed because you have a protective layer, i.e.,  10 an ice sheet which is separating the rising water from  11 the underlying water to some extent.  12 THE COURT:  Well, I would have thought that these things, if  13 they grow under the surface of the lake --  14 THE WITNESS:  Um-hmm.  15 THE COURT:  -- whether it's frozen or not, they are going --  16 they are not going to be deposited on the bottom  17 because the level of the lake rose, are they?  18 THE WITNESS:  Well, in the event that, for example if there was  19 a sudden damming of an outlet creek and the water  20 level suddenly rose when the lake was not frozen over,  21 I could see that the rising effect itself could churn  22 up, especially the shallow margins of the lake which  23 is where these plants generally grow, in the shallow  24 waters at the edges.  25 THE COURT:  It's possible, then, that it was the churning up of  26 the water that caused the remains to become separated  27 from their stems and to fall to the bottom?  28 THE WITNESS:  Or currents.  The plants are brittle —  29 practically can be described as being very brittle, so  30 if you get currents, any unusual kind, then the plants  31 will fragment and break up.  32 THE COURT:  That means they would be carried away, doesn't it?  33 THE WITNESS:  Depending which way the current was flowing.  The  34 fact is that they are brittle, they would simply be  35 stirred up from wherever they were growing and the  36 fragments then, instead of being confined to the edges  37 of the lake and the shallows, would ultimately find  38 their way out into the middle of the lake and settle  39 out, which is one explanation that I can think of for  4 0 the sudden --  41 THE COURT:  What level of confidence would you have in the  42 opinion as to the time of year when this event is  43 supposed to have occurred?  44 THE WITNESS:  Well, it's strictly a guess on my part.  I would  45 have to go and look at some literature and see what is  46 known about the effects of ice and the rising water  47 levels in the wintertime.  I would have to check the 90?  R. W. Mathewes (for Plaintiffs)  In chief by Ms. Mandell  1 literature.  2 THE COURT:  All right, thank you.  3 MS. MANDELL:  4 Q   Thank you.  Could you turn to figure 7.  Can you  5 identify what evidence is shown by figure 7 which  6 caused you to favour the conclusion that the sudden  7 water level disturbance is consistent with the  8 landslide?  9 A   Okay.  Well, figure 7 is a summary --  10 THE COURT:  Okay.  When you say "landslide", are you talking now  11 about the landslide in Chicago Creek that backed the  12 water up into the creek?  13 MS. MANDELL:  Yes.  14 THE COURT:  Yes, all right.  15 A   Perhaps, by way of introduction, I should explain that  16 a pollen diagram is a summary of all the pollen counts  17 done on all the samples from the bottom of the core to  18 the top.  And as is shown here against an age scale,  19 which is based on the radiocarbon dates which allow us  20 to place this on a years-before-present scale.  This  21 particular diagram dealing -- deals only with micro-  22 fossils, in other words, microscopic plant remains.  23 And at the level indicated on the right-hand side by  24 clay 1, which is the same position of the clay 1 as on  25 figure 6, there is -- it's indicated there  26 ceratophylium spines, this is the same plant, the  27 aquatic plant.  2 8 THE COURT:  Just a moment.  Where do we find ceratophylium?  29 THE WITNESS:  On the extreme right-hand side, the last curve  30 before aquatic.  Ceratophylium spines.  There is a  31 little black bar which starts right at the beginning  32 of the top of clay 1, indicated on the right-hand  33 side.  34 MS. KOENIGSBERG:  Under aquatic plants, my lord.  35 THE COURT:  Oh yes.  36 THE WITNESS:  The right-hand side of the diagram.  37 THE COURT:  C-E-R-A-T-O-P-H-Y-L-L-U-M?  38 THE WITNESS:  Correct.  39 THE COURT:  Spines?  40 THE WITNESS:  That's the one.  41 THE COURT:  Yes.  42 THE WITNESS:  This is the same plant of which I found lots of  43 macroscopic or large whole remains in the other  44 analysis.  And these plants produce tiny hard spines  45 on the tips of their leaves and these preserve in  46 these lake muds as well.  So this is the only curve  47 that doesn't indicate something that is a pollen or a 9089  R. W. Mathewes (for Plaintiffs)  In chief by Ms. Mandell  1 spore, it shows the ceratophylium spines.  2 And in accordance with the macroscopic remains  3 from figure 6, the spines of this plant are also  4 present in peak abundances immediately above clay 1.  5 There are some other occurrences below and above which  6 indicates that the plant has been in the lake before  7 and after, it wasn't there only during clay 1, but the  8 peak of these remains of this plant are clearly on top  9 of clay 1.  10 THE COURT:  Sorry, I don't understand this one.  What are zones  11 1, 2 and 3?  12 THE WITNESS:  Okay.  The zones indicate periods that I would  13 deem as periods when there were changes occurring in  14 the history of the vegetation of this area.  Now each  15 of these columns labelled by their Latin names, trees  16 and other plants and so on, the curve represents the  17 percent.  18 THE COURT:  Sorry, I don't see any curves, that's the trouble.  19 THE WITNESS:  Okay.  20 THE COURT:  Am I looking at the right one, figure 7?  21 THE WITNESS:  Figure 7.  22 THE COURT:  Where are the curves?  23 THE WITNESS:  If you look at Pinus contorta — can you find the  24 third column over, talking about columns?  25 THE COURT:  P-I-N-U-S, C-O-N-T-O-R-T-A?  26 THE WITNESS:  Commonly known as lodgepole pine.  If you follow  27 down from zero with the top of the age scale down to  28 the bottom of that core just below 9000, each of those  29 horizontal bars indicates the sample at which the pine  30 pollen reached a certain percentage.  So at the very  31 bottom, just before 9000, the percentage scale shown  32 on the bottom of these indicates that there is  33 approximately 50 percent slightly less pine pollen of  34 the total.  So of all the pollen identified in the  35 microscope for the very bottom sample, about 50  36 percent of those were pine -- lodgepole pine pollen,  37 Pinus contorta.  38 And if you follow this curve up from the oldest up  39 to the present day -- I'm referring to the curve as  40 the line formed by the ends of those horizontal  41 bars -- you can see that in zone 1, pine pollen is  42 reasonably consistent around 40 percent, in that  43 order.  And then in zone 2, the pine pollen curve  44 declines somewhat, becomes smaller to a lower  45 percentage.  And in zone 3, especially near the top,  46 the pine pollen values increase again.  So each of  47 these curves reflects the changing abundance of the 9090  R. W. Mathewes (for Plaintiffs)  In chief by Ms. Mandell  1 pollen types for each of the identified plant types  2 listed across the top.  3 THE COURT:  Yes?  4 THE WITNESS:  And the zones are my assessment of where the most  5 significant changes in that 9000 year period have  6 occurred.  7 THE COURT:  Therefore, if I were to draw in on your figure 7 the  8 actual lengths of the core, it would be horizontal  9 across the top?  10 THE WITNESS:  The length of the core?  11 THE COURT:  Yes?  12 THE WITNESS:  No.  The length of the core would be vertical  13 following the age scale, because the core --  14 THE COURT:  On which scale?  15 THE WITNESS:  The age scale on the extreme left.  Because zero  16 is the present -- that's zero before the present, that  17 would be the present day.  9000 at the bottom would be  18 9000 years ago.  So the core, in fact, is the same as  19 the age scale, because the bottom of the core is the  20 oldest, the present surface of the lake mud is the  21 present day.  22 THE COURT:  That's why I would have put the core horizontal  23 across the top.  24 THE WITNESS:  This is a convention -- pollen diagrams are, by  25 convention, formed in this way with the age or the  26 depth scale on the Y axis and the types of plant  27 abundances scaled on the X axis.  28 So what this is, in fact, is it's a summary of  29 pollen input changes to Seeley Lake beginning at 9000  30 years ago and following those horizontal bars all the  31 way up to approximately the present day, and it shows  32 the relative abundance changes of pollen types of the  33 different plants listed there.  34 THE COURT:  What does 5x exaggeration mean?  35 THE WITNESS:  Oh, it's five times, five times exaggeration.  36 THE COURT:  All right.  37 THE WITNESS:  It's that open line outside.  It's to make rare  38 pollen types, those that have very rare percentage  39 which would hardly show on this scale, to make them  40 visible, so the actual value is exaggerated five  41 times.  42 THE COURT:  I still don't understand why your core is vertical.  43 THE WITNESS:  That is the convention.  44 THE COURT:  Because the core is newest at the top and oldest at  45 the bottom?  46 THE WITNESS:  Right.  And in fact, this is the way it would have  47 been taken in the lake.  If you were to go out to 9091  R. W. Mathewes (for Plaintiffs)  In chief by Ms. Mandell  1 Seeley Lake and drop a drain pipe or tube down to the  2 bottom until you couldn't get it down to the lake  3 bottom any further, the material at the bottom of the  4 core would be the oldest and the material at the  5 present water mud interface would be, in effect, the  6 present day.  And in fact, it records the pollen of  7 the plants that are presently growing around Seeley  8 Lake.  9 So in fact, the age of the depth curve is very  10 much like a vertical core that you would take from the  11 mud at the bottom of a lake.  So to me, that is very  12 consistent and that is the standard form for  13 presenting a pollen diagram.  14 THE COURT:  But you have Pinus contorta —  15 THE WITNESS:  Yes.  16 THE COURT:  — throughout the whole length of the age scale?  17 THE WITNESS:  That's right.  Which indicates that Pinus contorta  18 was present from the time this lake formed some time  19 before 9000 years ago, it was present from that time  20 on right to the present day and it still grows around  21 the lake.  22 THE COURT:  Well I'm sorry, but I'm just being obtuse, but if I  23 put your core vertical --  24 THE WITNESS:  Yes.  25 THE COURT:  Then I'm only finding Pinus contorta at the very  26 young end of the age scale, I'm not finding any Pinus  27 contorta at the bottom which would be the oldest.  28 THE WITNESS:  Yes, it is there.  29 THE COURT:  Pinus contorta, you have it down again at the  30 bottom?  31 THE WITNESS:  Yes.  Each of those horizontal bars, you see the  32 horizontal bars, the ends of those are joined up to  33 form a curve, but the horizontal bars are the actual  34 percentage values for lodgepole pine at all the  35 different sampling depths.  36 THE COURT:  Yes, I understand that.  37 THE WITNESS:  And in fact, if you read the actual curve, the  38 ends of those horizontal bars, as I mentioned, zone 1,  39 the average value for pine would be 40 percent if you  40 look at that scale.  41 THE COURT:  I'm just concerned that either I'm being very obtuse  42 or I'm not understanding you.  43 MS. MANDELL:  My lord —  44 THE COURT:  And I'm not worried about the former but I am about  45 the latter.  46 MS. MANDELL:  My lord, may I ask whether you are viewing figure  47 7 or figure 8?  That figure is on the left. 9092  R. W. Mathewes (for Plaintiffs)  In chief by Ms. Mandell  1 THE COURT:  Figure 7.  Why don't I come over there.  2 THE WITNESS:  Yes, you are on the correct figure.  3 THE COURT:  Yes.  And if I — if that's your core —  4 THE WITNESS:  Yes.  5 THE COURT:  -- and here is age zero and here the age -- how many  6 thousands of years, 9000 years?  7 THE WITNESS:  Yes.  8 THE COURT:  And I have it like that.  9 THE WITNESS:  We are going back in time.  10 THE COURT:  Yes.  Well then I'm only going to have Pinus  11 contorta.  Where am I going to find Pinus contorta?  12 THE WITNESS:  Right here is the one — and if you scaled this up  13 this would be 40 percent near the top.  The value or  14 highest values are down here.  Here is a Pinus  15 contorta value to almost 50 percent here, and here the  16 Pinus contorta values go to there, these horizontal  17 bars.  18 THE COURT:  Yes.  19 THE WITNESS:  So that would only be about, if you look at this  20 scale, only about 20 percent.  This one here refers to  21 about 50 percent and up top it's --  22 THE COURT:  At what age?  23 THE WITNESS:  Well, here, if you go across, this is 3000, about  24 3500 years ago.  25 THE COURT:  All right.  26 THE WITNESS:  So 7000 years ago lodgepole pine had a value  27 somewhere there, almost a little lower than it is down  28 here.  29 THE COURT:  What you are saying, I should put the core this way.  30 THE WITNESS:  No, no.  31 THE COURT:  That's what I asked you and you said you put it  32 vertical.  33 THE WITNESS:  Vertical, that's right.  34 THE COURT:  Well I —  35 THE WITNESS:  What's perhaps confusing is that these are all the  36 pollen types that I've identified and each of them has  37 their own percentage, they are all represented as a  38 fraction of a hundred percent.  3 9 THE COURT:  Yes.  40 THE WITNESS:  So each has its own column.  And in fact, if you  41 add all these different values up, at the end they  42 should add up to a hundred percent.  43 THE COURT:  All right.  Your vertical is like that?  44 THE WITNESS:  Right, that's my vertical.  45 THE COURT:  That's my vertical.  I call that horizontal.  46 All right, thank you.  47 THE WITNESS:  I do it with respect to the printing:  if they 9093  R. W. Mathewes (for Plaintiffs)  In chief by Ms. Mandell  1 print something right-side up it's vertical.  2 THE COURT:  I'm looking at a book that was put together in the  3 English fashion.  4 MS. MANDELL:  I'm sorry.  5 THE COURT:  All right, thank you.  6 THE WITNESS:  Your honour, it takes a whole semester of study to  7 get all this across, it's very hard to do it in an  8 afternoon.  9 THE COURT:  I have had enough, thank you.  10 MS. MANDELL:  11 Q   Is there anything further from figure 7 that you  12 wanted to draw to our attention?  13 A   Yes.  There is one point I would like to make with  14 respect to the possibility of there having been a  15 landslide around the deposition of clay 1, and if you  16 follow the clay 1 level across the diagram and look at  17 the curve marked Alnus, which is about the middle of  18 the trees.  Alnus is alder pollen.  19 THE COURT:  That's A-L-N-U-S.  20 A  A-L-N-U-S.  And if you look — follow the clay 1  21 boundary horizon there across, there is a peak value.  22 The highest value of alder in the whole curve over the  23 last 9000 years is the sample immediately above the  24 clay 1 level.  In fact, I've highlighted on this  25 diagram as being a somewhat thicker horizontal bar as  26 the level of the clay.  There is one horizontal bar  27 which is little heavier which is the clay band.  28 The next sample up from that, if you look at  29 the -- the percentage column is the actual highest  30 value of alder pollen for -- the highest percentage of  31 alder pollen for the whole 9000 year record is in the  32 sample immediately above that dark horizontal bar  33 which refers to clay 1.  Now, the possible  34 significance of that is -- is that alder -- at least  35 one species of alder is typically a plant that grows  36 on talus slopes and sort of rocky debris flows which  37 landslides generate.  And it's possible, although I  38 couldn't conclusively say that, that this peak valley  39 of alder pollen might in some way reflect the fact  40 that there was some fresh alluvial material that had  41 come down in the area.  And alder pollen -- alder  42 plants had colonized this rubble surface, and their  43 pollen, because they are wind pollinated and the  44 pollen is blown around very well as recorded in Seeley  45 Lake, and it's perhaps not random that the highest  46 value in the whole core is in the sample immediately  47 above the one suggestive of a landslide event. 9094  R. W. Mathewes (for Plaintiffs)  In chief by Ms. Mandell  1 So that is some supplementary information which is  2 certainly, again, consistent with the idea that there  3 was a landslide around the time of the clay 1  4 deposition.  5 MS. MANDELL:  6 Q   With respect to the aquatic plants at the -- set out  7 in the pollen percentage diagram, are there any  8 conclusions besides that which you've already  9 established and explained to us, that -- that any part  10 of the story that's told by the presence of those  11 aquatic plants at that place made in the graph?  12 A   Yes, there is one more thing I should mention.  13 Again, there is a number of possible explanations  14 for why the ceratophylium which we discussed earlier,  15 spines, are most abundant above the clay layer.  One  16 of these could be this question we were discussing  17 about the possibility of the plants breaking up from  18 the shallow waters and moving into the middle of the  19 lake.  And another possibility is that the clay  20 itself, or this mineral matter washed in to form this  21 clay band 1, had a fertilizing effect on the lake.  In  22 other words, that these -- these mineral nutrients in  23 the lake actually caused the aquatic plants to grow  24 better and faster and produce more pollen.  And the  25 possible increase of ceratophylium at this point could  26 be due to a fertilizing effect as opposed to just  27 simply brittle breaking up due to the current.  And  28 that one evidence that might relate to this is the  29 curve under aquatic plants marked Potamogeton, which  30 is the Latin.  31 THE COURT: P-O-T-A-M-O-G-E-T-O-N.  32 A   Correct.  Commonly known as pondweeds.  And pondweeds  33 are aquatic plants, and again, if you look at the  34 pollen curve for pondweed, although the values are  35 small, they don't produce a lot of pollen, if you look  36 at the -- at the curves above the clay band, I've  37 blackened them in, those are the highest values,  38 again, for the whole record of the core from 9000 day  39 to the present, where the pondweed pollen is most  40 abundant.  Which I'm not sure what it means, but it  41 could suggest that pondweeds were able to flourish and  42 flower more profusely than before, which might be a  43 fertilizing effect due to this clay washing into the  44 lake.  45 I think that is about all relating directly to the  46 clay band.  47 MS. MANDELL: 9095  R. W. Mathewes (for Plaintiffs)  In chief by Ms. Mandell  1 Q   All right.  Could the clay band have indicated any  2 other kind of disturbance than a sudden rise of water  3 levels consistent with the landslide?  4 A   Yes.  Clay band or deposits of clay are actually very  5 common in a lot of lakes, particularly in the very  6 early phases of formation.  Soon after the ice age  7 ends and the ice melts, there is a lot of loose  8 material which isn't well-anchored by plants growing  9 around the lake.  And in those early stages of the  10 lake formation it's very common to see mineral matter  11 being flushed into lakes in quite large quantities  12 producing often very extensive bands of clay, silt,  13 sand and other inorganic material.  14 But once that vegetation cover around the lake  15 has consolidated and formed a root map with the soil  16 around the lake, you tend to see a decline of organic  17 matter input and you get an organic-rich settlement  18 which tends to have relatively little of this clay  19 material.  So really, anything which disrupts the  20 soils or the -- basically, the soils around the lake,  21 could cause erosion to produce mineral matter which  22 will wash into the lake.  23 For example, the common cause would be in a lake  24 that had a large stream feeding into it, that if there  25 was a heavy storm event, a flood or something that  26 would wash away a lot of the banks of the inflowing  27 creek and a lot of the mineral soil would be washed  28 into the lake, and that would be reflected as a band  29 of clay, silt or sand, and be marked in such a way.  30 Another possibility would be forest fires.  Forest  31 fires also, by destroying the forest cover at the edge  32 of a lake, could again make the soil amenable to  33 erosion, and that would -- could also cause the input  34 of mineral matter into a lake which could leave a  35 distinct marker band.  And there are possibly other  36 explanations which are probably less strong, but I  37 would think fire and if there there was a stream  38 feeding in, a heavy storm event could produce a  39 pattern similar to that.  40 Q   And based upon your investigation, what is your  41 opinion as to the likelihood that this clay band was  42 caused from the flooding from any input stream?  43 A  Well, in order to check the possibility that a fire  44 was responsible for producing this influx of clay, I  45 did look at charcoal particles which were present, in  46 fact, throughout the lake in the pollen preparations,  47 and there is no enhancement of charcoal either before, 9096  R. W. Mathewes (for Plaintiffs)  In chief by Ms. Mandell  1 during, or after the formation of clay 1, which would  2 suggest that a massive fire had somehow burned the  3 forest cover and therefore caused erosion of mineral  4 matter into the lake.  So based on the absence of  5 charcoal, a fire doesn't seem very likely.  6 Q   Okay, that's the fire possibility.  What about the  7 flooding from some input stream?  8 A  Well, as far as I can determine, there is no  9 significant input stream into Seeley Lake.  The  10 topographic maps don't show it, the air photos don't  11 show any stream input, and if there was a stream that  12 was continually affecting a lake like this over  13 periods of thousands of years and amenable to erosion  14 and storm events, storm events occur reasonably --  15 with reasonably high frequency, then I would expect to  16 see a series of clay bands, each corresponding to a  17 storm event.  The fact that, in fact, there are only  18 two clay bands in the whole 9000 year history of this  19 lake suggests -- at least the upper one which is the  20 most distinctive one -- a somewhat unusual event and  21 wouldn't be accounted for by normal occurrences such  22 as periodic rain storms and so on.  23 THE COURT:  What's the elevation of Seeley Lake above the  24 Skeena?  25 THE WITNESS:  Sorry, above which?  2 6 THE COURT:  The Skeena.  27 THE WITNESS:  Above the Skeena?  Gosh, I don't know.  I think  28 it's an elevation of around 400 metres but it's -- I  29 really couldn't say, I haven't measured it.  But it's  30 certainly well above the floodplain of the Skeena.  31 THE COURT:  On a 200 year cycle or longer?  32 THE WITNESS:  Well, I couldn't say, your honour, I'm not a  33 hydrologist.  34 THE COURT:  All right.  35 MS. MANDELL:  36 Q   You mentioned that there may be other possible  37 explanations besides flooding or a forest fire or a  38 landslide.  Are there any other plausible explanations  39 from your point of view that were either considered or  40 considered and rejected by you?  41 A   Oh, in terms of considering, I considered the  42 possibility that beavers perhaps had damaged the  43 outlet creek at various times and caused it to back  44 up.  And again, beavers have been around, presumably,  45 this area throughout the whole history, and if beavers  46 were there throughout the whole history, whatever they  47 were doing should be part of the normal pattern.  What 9097  R. W. Mathewes (for Plaintiffs)  In chief by Ms. Mandell  1 we are seeing in that clay 1 is something that is  2 clearly unusual for a period of several thousand  3 years.  Not a regular occurrence.  And in fact, I  4 still have never been able to decide myself what the  5 second lower clay band actually represents.  The  6 evidence is not clear, it doesn't show the same  7 pattern as the upper clay band.  It may in fact also  8 represent some kind of an earlier blockage of the  9 creek system, but I haven't been able to form a solid  10 opinion about the lower one.  11 Q   All right.  Now, you had another purpose in conducting  12 this study as you earlier identified, and that was to  13 do, to the best of your capability, a postglacial  14 history of vegetation and climate for this study  15 region, using the methods that you do.  16 THE COURT:  I'm sorry, Ms. Mandell, just before you leave that.  17 Where would you put the second clay band on this  18 figure 7?  19 THE WITNESS:  Oh, on figure 7?  I didn't mark it on there but it  20 is on figure 4.  If you like to see it in relation to  21 the radiocarbon dates, it's plotted on there with its  22 date of 6330, and I haven't marked it on the other  23 one.  24 THE COURT:  6330?  25 THE WITNESS:  That was the radiocarbon data associated with the  26 clay band 2.  It certainly is nowhere near the  27 original estimate of Dr. Gottesfeld for the Chicago  28 Creek landslide.  29 THE COURT:  All right.  Sorry, Ms. Mandell.  Well, while we are  30 at it, is there anything consistent or inconsistent  31 about the pollen findings immediately before and after  32 clay 2 as related to clay 1?  33 THE WITNESS:  I looked for changes to suggest that this might  34 also be an event of similar nature and I couldn't find  35 anything that I would suggest is a significant change.  36 It appears to have been a much less significant event  37 than the clay 1, either -- both in the pollen and in  38 the macrofossils, although in the macrofossils there  39 is an indication that there is more birch seeds coming  40 in, if I recollect correctly.  41 THE COURT:  Clay 1 or clay 2?  42 THE WITNESS:  Clay 2.  If you go back to figure 6, clay 2 is  43 also marked on figure 6 with the radiocarbon date.  44 And again, there is a brief increase in betula cone  45 scales which is the last column to the right in upland  46 plants which are the actual seed cone fragments of  47 birch.  And they are abundant below clay 2, and above 909?  R. W. Mathewes (for Plaintiffs)  In chief by Ms. Mandell  1 clay 2 there is a -- there is a significant peak of  2 birch scales although there are no clear birch seeds.  3 But there is a suggestion there that something  4 was also washing birch remains into the lake, but in  5 the absence of any other good indications of a rapid  6 change such as the ceratophylium remains and so on,  7 and there is, in the pollen record, no clear indica-  8 tion as there is with clay 1 of anything unusual  9 happening, I've just not formed an opinion with regard  10 to clay 2.  11 THE COURT:  All right, thank you.  12 MS. MANDELL:  13 Q   Perhaps we can finish with the analysis of the Seeley  14 Lake sampling by referring you to your second purpose  15 in doing this sampling as you indicated, which was to  16 provide the first data on vegetation and climatic  17 history for the Hazelton variant, using pollen and  18 plant macrofossil analysis.  And if I could ask you,  19 with reference to figures 7 and 8, to summarize what  20 conclusions, if any, you were able to draw indicating  21 the kind of history that you were looking for with  22 respect to that objective?  23 A   Perhaps I should also explain why there is figure 7  24 and 8 there.  It should be pointed out, perhaps, that  25 these rely on exactly the same pollen counts.  These  26 are the same data but presented in two different ways.  27 Figure 7 which we have been discussing is a pollen  28 percentage diagram, again, where the curves represent  29 the relative abundances of the different pollen types  30 throughout the record.  Figure 8 is referred to as a  31 pollen influx diagram which is another standard  32 technique where you can establish an age scale of  33 representing the pollen data as actual pollen  34 estimates of annual influx to a lake bottom.  And the  35 scale at the bottom is in pollen grains per square  36 centimetre per year, so it's a very different  37 representation of the same data.  The reason this was  38 presented is that a pollen influx diagram, unlike a  39 pollen percentage diagram, each of the curves is  40 totally independent of all the other curves.  You can  41 appreciate that in a pollen percentage diagram where  42 you are calculating, everything has a percentage of a  43 hundred percent.  If, for example, suddenly pine were  44 to increase in the area and produce a lot more pine  45 pollen and the pine pollen percentage increased,  46 because you are calculating it as a percentage of a  47 hundred, all other things by definition have to 9099  R. W. Mathewes (for Plaintiffs)  In chief by Ms. Mandell  1 decrease.  Therefore, you can get fluctuations in a  2 pollen percentage diagram which reflect vegetation  3 changes, but they may be due more to changes in other  4 species than in the species that you may be discussing  5 at the time.  6 The pollen influx diagram shows all curves as  7 independent.  No curve change in one species will  8 affect another.  And to make a long story short, the  9 two diagrams basically show the same patterns, the  10 same trends, the same types of vegetation changes,  11 although the scales are obviously different.  But the  12 same zonation could be applied to them because the  13 changes are apparent in both types of diagrams.  14 If I were to draw out a major conclusion with  15 regards to the zones, in other words, the major long-  16 term changes that are indicated in both of these  17 diagrams -- I'm going to speak mostly to figure 7  18 which we discussed already -- what was somewhat  19 surprising to me about this diagram is that there  20 weren't more substantial changes.  It's more common  21 for me to find in the very early stages of a lake that  22 you get a vegetation type very different from what you  23 get in the present day.  At Seeley Lake, although  24 there are changes reflected in zones 1, 2 and 3, the  25 changes are of a relatively minor nature.  There are  26 no really striking changes where one species suddenly  27 dominates and then maybe disappears.  Virtually all  28 the species with the exception of a few are present in  29 the early part of the record and continue through to  30 the top of the record, at the present day, and just  31 simply fluctuate in between.  But the major changes  32 are with respect to zone 1.  I would say this early  33 phase has a fairly consistent representation of pine  34 and relatively low values of certain coastal elements.  35 And particularly in terms of coastal elements, I would  36 draw your attention to the vertical curve marked Tsuga  37 heterophylla, which is western hemlock.  38 THE COURT:  Just a moment, I'll find that.  39 THE WITNESS:  In trees, approximately just to the left of the  40 middle there are two species represented, Tsuga  41 heterophylla.  42 THE COURT:  That's T-S-U-G-A?  43 THE WITNESS:  Yes.  44 THE COURT:  H-E-T-E-R-O-P-H-Y-L-L-A?  45 THE WITNESS:  Correct.  Tsuga heterophylla which is a typical  46 tree of the wetter coast area but is present around  47 Seeley Lake, this -- the pollen of this species was 9100  R. W. Mathewes (for Plaintiffs)  In chief by Ms. Mandell  1 relatively scarce in the early stages and it increases  2 more or less continuously throughout, say, the last  3 five to 6000 years, which may indicate that as more  4 hemlock pollen is being produced, that there is more  5 hemlock in the local forest, which might suggest that  6 it had become somewhat wetter climatically compared to  7 the earlier periods when lodgepole pine was more  8 common and hemlock was less common.  9 One other curve that I did focus on if my report  10 under trees is marked Cupressaceae,  11 C-U-P-R-E-S-S-A-C-E-A-E, and this is a difficult —  12 THE COURT:  How are you spelling that one?  13 THE WITNESS:  C-U-P-R-E-S-S-A-C-E-A-E.  14 THE COURT:  Yes.  15 A   Cupressaceae is a problem for possible pollen analysis  16 because the whole family -- this is a family  17 designation which includes red and yellow cedar,  18 juniper, various species of those.  So by finding  19 pollen grains of this family you can't say whether  20 they came from red cedar or yellow cedar or from  21 juniper, but there is a distinctive change in this  22 curve.  It's very scarce throughout zones 1 and 2, but  23 increases quite dramatically at the beginning of zone  24 3 near the top and is consistently present, and in  25 fact reaches its highest values in the surface  26 sediments of Seeley Lake, the present day.  27 This suggestion, perhaps, together with the Tsuga  28 heterophylla or the western hemlock that there has  29 been an increasing coastal influence over the last  30 3000 years in this area, because these -- these groups  31 have expanded and I'm assuming here that the  32 Cupressaceae is most likely representing pollen of  33 western red cedar which presently grows around the  34 shores of Seeley Lake and is there right now.  35 The other reasons zone 3, zone 2 boundary is  36 there at around 3000 years ago is that after 3000  37 years ago, approximately, the Pinus contorta curve,  38 third one from the left, or lodgepole pine curve,  39 again increases as it -- to levels even somewhat  40 higher than most of zone 1 in the early stages.  So  41 there appears to be an increase, again, in lodgepole  42 pine in the region around Seeley Lake in zone 3.  43 And lodgepole pine is a problematic tree to deal  44 with.  It's found all over the province, it has a wide  45 range of adaptation in terms of different subspecies  46 that can grow at -- near timberline sites high in the  47 mountains, it grows in the wettest coastal habitats 9101  R. W. Mathewes (for Plaintiffs)  In chief by Ms. Mandell  1 and some of the driest interior habitats.  Therefore,  2 it's a very difficult tree to draw climatic inferences  3 from.  And most likely, this increase in lodgepole  4 pine is normally attributed by plant ecologists and  5 foresters to a change in forest fire frequency,  6 because pine, lodgepole pine particularly, Pinus  7 contorta, is a species that colonizes burns and forest  8 fire burn areas very rapidly, often forming pure  9 stands for short periods of time.  So where Pinus  10 contorta is abundant, there is always the suspicion  11 that fire may have been an important factor in  12 generating continuously large populations of lodgepole  13 pine in an area.  14 THE COURT:  Doctor, looking at figure 8 and referring to Pinus  15 contorta, you just referred to when it's heavier  16 values at the furthest distance in the age scale --  17 THE WITNESS:  Um-hmm, at the bottom of the core.  18 THE COURT:  Bottom of the core?  19 THE WITNESS:  Yes.  20 THE COURT:  You are not -- you don't suggest, or do you, that  21 that represented the condition of the bottom of the  22 lake 9000 years ago, or do you?  23 THE WITNESS:  I'm sorry, I don't understand your question.  24 THE COURT:  Well, are you — it shouldn't be assumed — or do  25 you assume that the bottom of -- that these values for  26 say Pinus contorta as an example, suggests a condition  27 of the lake bottom at the time of the 9000 year level?  28 THE WITNESS:  I'm not sure what you mean by the condition of the  29 lake bottom.  These represent the amounts of pollen  30 that are estimated to have settled to the bottom of  31 Seeley Lake at that time, and the highest values are  32 at the base.  33 And I should perhaps point out in terms of pollen  34 influx diagrams aren't considered perfect.  One of the  35 problems with them, besides establishing the age scale  36 accurately that you need to do in order to get  37 accurate pollen influx data, is that the amount of  38 pollen entering and actually being preserved in the  39 lake bottom depends on the sedimentary conditions.  40 And one thing that is often found in lakes,  41 particularly those that have a fairly steep profile,  42 is that there is an absolutely larger amount of total  43 pollen that you find at the very early parts of a lake  44 than higher up, because very often in the early  45 stages, as the lake bottom is filling in, pollen  46 that's landed on the edges of the lake, because it's  47 very small, light, it is transported by currents and 9102  R. W. Mathewes (for Plaintiffs)  In chief by Ms. Mandell  1 is all focused down in the very deepest part of the  2 lake.  3 THE COURT:  Then you are suggesting that the water level in a  4 lake has risen over these 9000 years by this 4 metres  5 or so, that referenced --  6 THE WITNESS:  No, no, not based on this.  At the core A locality  7 there has always been a lake.  As far as I can  8 determine from the sediments, these sediments were  9 always formed under water.  10 THE COURT:  Yes.  11 THE WITNESS:  Okay.  So at 9000 years ago there would have been  12 a certain amount of pine pollen which would have  13 landed on the lake surface, sunk to the bottom and  14 become buried in the accumulating mud on the bottom,  15 and that is what we are going back now with the  16 microscope, counting and tabulating on these curves.  17 So this actually does represent that there was more  18 pine pollen settling to the bottom of Seeley Lake at  19 9000 than there was, say, at the present day.  20 THE COURT:  Right.  But is it implicit in your investigation,  21 then, that the lake is gradually filling from the  22 bottom by the residue that's settling there?  23 THE WITNESS:  Yes, it is.  24 THE COURT:  At least in this 9000 years?  25 THE WITNESS:  Yes.  26 THE COURT:  The lake bottom has risen, and in absolute terms,  27 about the lengths of your core?  28 THE WITNESS:  Correct.  The lake bottom has risen, exactly.  In  29 fact, what we are looking for is a site where the  30 accumulation of this mud on the bottom of the lake is  31 more or less continuous so you don't have any gaps in  32 this record.  You are quite right, so the four and a  33 half metre core actually represents the deposition at  34 the bottom of the lake of 9000 years of mud.  35 THE COURT:  Yes.  36 THE WITNESS:  Yes.  37 THE COURT:  Thank you.  38 THE WITNESS:  I'm sorry, I thought you were referring to the  39 lake water level instead of the sediment level.  You  40 are quite right.  41 THE COURT:  I suppose they don't have a direct correlation?  42 THE WITNESS:  No.  The water level can stay the same but the  43 bottom can be coming closer to the water level all the  44 time by filling in.  45 THE COURT:  Conversely, as the bottom fills, the lake level  46 could rise as well, correct?  47 THE WITNESS:  Normally, that's not true.  These sediments are 9103  R. W. Mathewes (for Plaintiffs)  In chief by Ms. Mandell  1 water-saturated and as they fill the lake -- I don't  2 think it's like dropping sand in a bathtub.  Actually,  3 I hadn't thought about it in that way.  But  4 generally --  5 THE COURT:  The water supply is constant?  6 THE WITNESS:  Yes.  7 THE COURT:  I suppose you say it would just run off?  8 THE WITNESS:  That's what I would think.  9 THE COURT:  All right.  10 MS. MANDELL:  11 Q   Can you then tell us whether or not cottonwoods or the  12 conifer species may have been present around the lake  13 at approximately the time where the clay band is  14 recorded 3500 years ago?  15 A   Cottonwood?  16 A   Yes.  17 Q   Cottonwood.  No, I can't say cotton as being a species  18 has been around.  Cottonwood is not listed here  19 separately.  It's a member of the genus populus which  20 on figure 7 is the last curve to the right of the  21 tree's diagram.  Populus includes two species, the  22 aspen and the cottonwood.  And populus, unfortunate-  23 ly, is one of those pollen types which has relatively  24 poor preservation.  Even though the tree may be very  25 abundant as it is around Seeley Lake today, it does  26 not leave a very good pollen signature of its presence  27 in the present or necessarily in the past.  And you  28 cannot tell the difference between the pollen of a  29 populus -- you can't get the difference between aspen  30 or cottonwood because the pollen grains look alike.  31 Therefore, all I can say, because poplar pollen has  32 been present throughout the whole record of Seeley  33 Lake, that poplars of some kind and certainly conifers  34 which include most of the tree species listed here,  35 have been present around the lake throughout the whole  36 record, including the time of the clay band.  There is  37 poplar pollen at the clay band above it and below it  38 and conifers of various kinds which include the  39 lodgepole pine and spruce and hemlock and all the  40 other ones we have been talking about.  So if you say  41 conifers and poplars have been present around the lake  42 at a certain time, that's true for the whole record of  43 Seeley Lake.  44 Q   All right.  Now, if I could ask you to turn to figure  45 nine, which is the page following 28.  46 Now, this figure is no longer talking about --  47 itself talking about the -- your Seeley Lake 9104  R. W. Mathewes (for Plaintiffs)  In chief by Ms. Mandell  1 conclusions with respect to the disturbance.  But am I  2 right that this figure is a summary of all of the --  3 all of the various samples which you earlier had  4 identified in figure 1 as samples which you were going  5 to investigate to try and identify the regional  6 climate and vegetation changes over time?  7 A   Yes.  This summarizes the -- my own conclusions from  8 Seeley Lake and Raspberry Bog and conclusions of  9 others recording the history of the Prince Rupert,  10 Queen Charlotte Islands and the Atlin area.  11 Q   And can you advise, before you take us into this  12 figure, whether or not, in your view, your objective  13 was met by the five samples that you were able to  14 analyse, to be able to describe the regional climate  15 and vegetation changes over time?  16 A  Well, no, I couldn't claim that I could adequately  17 describe the vegetation history of this whole area.  18 And we knew this was a limitation at the beginning,  19 there just aren't enough sample sites that have been  20 studied already to make any large scale conclusions,  21 and this is due largely to the fact that we are in a  22 mountinous area where the vegetation and climatic  23 conditions change rather rapidly over both altitude  24 and latitude, and we would need a large -- a much  25 larger number of sites to be able to say definitively  26 what the climatic trends or forest trends were in this  27 area.  All this does is gives us, you know, a  28 comparison as limited as is available with Seeley  29 Lake, just to see if there are any parallels, even at  30 this very limited information base.  31 Q   And even with this limited information base, is there  32 any opinion that you have formed on the basis of it,  33 regarding the trends in regional climate and  34 vegetation change over time?  35 A  Well, if I were to compare it particularly to the area  36 that I know best which is the Queen Charlotte Islands  37 where I have been working for the last six years, and  38 the published literature from Prince Rupert,  39 immediately west of the Hazelton region, those are the  40 closest sites to Seeley Lake.  There is very good  41 evidence, in fact, that approximately over the last  42 3000 years, beginning somewhat earlier, perhaps as  43 early as 5000 years, there has been a long-term trend  44 toward increasing wetness of climatic conditions.  And  45 this is reflected again at Prince Rupert on figure  46 nine, for example, by the upper zone indicated on the  47 diagram being called the cedar-pine zone.  Again, 9105  R. W. Mathewes (for Plaintiffs)  In chief by Ms. Mandell  1 cedar being a tree that grows well in a wet, coastal  2 climate with little frost.  And pine being lodgepole  3 pine which in this case refers to small pine trees  4 growing on peatbogs, the development of peatbogs, the  5 increasing amount of cedar and so on, which is  6 apparent here is also apparent on the Queen Charlotte  7 Islands, and that does suggest that there is a  8 regional trend toward wetter climates sometime during  9 this last 3000 year interval.  10 THE COURT:  I can't read some of the words on this under Seeley  11 Lake.  12 THE WITNESS:  Yes.  13 THE COURT:  The top item under 1000 years ago says pine and  14 what's the next?  15 THE WITNESS:  Hemlock.  Pine-hemlock-cedar.  16 THE COURT:  Thank you.  And then the next zone below that,  17 hemlock-birch-alder?  18 THE WITNESS:  Hemlock-birch-alder.  19 THE COURT:  Yes, all right.  And the third zone, pine and what's  20 that?  21 THE WITNESS:  It didn't photocopy on mine either.  22 MS. MANDELL:  Mine is pine-birch-alder.  23 THE WITNESS:  Pine-birch-alder, correct.  2 4 THE COURT:  Thank you.  25 MS. MANDELL:  All right.  2 6 THE COURT:  Well, can you conclude a general wetting tendency  27 for Seeley Lake on that information?  28 THE WITNESS:  Well, the indication is, and I'm relying here  29 largely on the cedar curve, that this probably does  30 reflect as elsewhere on the coast, an increasing  31 tendency toward a wetter climate in this particular  32 latitude.  But clearly we would need a lot more sites  33 to be able to say that definitively, but the trends  34 are consistent, certainly, in the increase with cedar,  35 with increasing wetness.  36 The pine, on the other hand, is somewhat  37 problematic because again it's not a good indicator of  38 climate.  On the coast it's often associated, as shown  39 in Prince Rupert, with the cedar, because these  40 lodgepole pine trees grow right in the peatbogs which  41 are themselves an indicator of increasing wetness.  42 Around Seeley Lake, it's more complicated to interpret  43 pine, and in fact I would interpret pine more likely  44 to not indicate anything specific about climate, but  45 rely largely on the increasing hemlock and cedar which  46 are coastal -- by and large coastal dominance -- their  47 increases during this time to indicate that a more 9106  R. W. Mathewes (for Plaintiffs)  In chief by Ms. Mandell  1 coastal influence was making itself felt around Seeley  2 Lake in the last three millennia.  3 MS. MANDELL:  Okay.  I have a few remaining questions just with  4 respect to your methodology.  Perhaps, my lord, I'm in  5 your hands, if you wish to adjourn now or --  6 THE COURT:  Yes.  We have a problem about the reporters.  We  7 will adjourn for just a moment, please.  8  9 (PROCEEDINGS ADJOURNED AT 3:15 p.m.)  10 (PROCEEDINGS RECONVENED AT 3:20 p.m.)  11  12 THE REGISTRAR:  Order in court.  13 THE COURT:  Ms. Mandell.  14 MS. MANDELL:  15 Q   Thank you.  16 Dr. Mathewes, do you adopt the assumptions, facts  17 and opinions that have been set out in your report as  18 your evidence today?  19 A   Yes, I do.  There is some minor typographical errors  20 which I wish were cleaned up, but everything  21 substantive I accept.  22 THE COURT:  Are they collected together somewhere?  23 MS. MANDELL:  The typographical errors?  24 THE COURT:  No, the assumptions.  Or are they scattered  25 throughout?  26 MS. MANDELL:  The only assumptions which I'm putting to the  27 witness that I say are assumptions in his report, are  28 the two that we have put to the witness already.  2 9 THE COURT:  Yes, all right.  30 MS. MANDELL:  I would ask now that the report be tendered as an  31 exhibit.  32 MR. WILLMS:  My friend dealt with a number of my objections by  33 changing them from facts to assumptions.  There is a  34 couple that she missed.  The first one is at page 18  35 of the report at tab 2, there is a Gottesfeld  36 discussion.  I take it that there is really no  37 question that that whole paragraph starting with the  38 data on clay 1 where it refers to the debris flow is  39 all based on the assumption that there was a debris  40 flow, that that happened when Dr. Gottesfeld said it  41 happened.  So that it's not -- for example, it hasn't  42 been established that Seeley Creek was dammed yet, for  43 example.  That's for Dr. Gottesfeld, so that's an  44 assumption.  But the -- as my friend pointed out  45 earlier, much of this, wherever Dr. Gottesfeld and the  46 debris flow and the landslide is referred to, it's all  47 based on assumptions from Dr. Gottesfeld, not on the 9107  R. W. Mathewes (for Plaintiffs)  In chief by Ms. Mandell  1 witness' own expertise.  2 THE COURT:  That's correct, isn't it, witness, that you -- you  3 have assumed the correctness of Dr. Gottesfeld's views  4 in that connection, haven't you?  5 THE WITNESS:  Yes.  6 THE COURT:  Yes.  7 MS. MANDELL:  8 Q   If I might just clarify.  9 Is the assumption that you accept that Dr.  10 Gottesfeld dated certain material and that the dates  11 are as he said, and that Dr. Gottesfeld concluded that  12 it was a debris flow.  Those are the assumptions you  13 take as true; is that correct?  14 A   Yes.  15 THE COURT:  Yes all right.  16 MR. WILLMS:  So that — that's the last — I believe that's the  17 last Gottesfeld reference.  18 The last reference that I objected to is on page  19 26, my lord, and there is one sentence there, there is  20 a discussion -- description of increased fire  21 frequency, and then there is this sentence:  22  23 "The indicated increased fire activity along the  24 Skeena Valley may therefore be due either to  25 natural fires or to increased human disturbance."  26  27 To the extent that there may or may not have been  28 human disturbance, that has got to be the  29 archaeological evidence which the witness has already  30 said that he assumed.  He assumed, for example, that  31 Dr. Faldmark, whatever the archaeological evidence is  32 that Dr. Faldmark dug up in Raspberry Bog, and I  33 suppose there may be some archaeological evidence  34 coming with respect to Seeley Lake showing that there  35 is a human -- that there could be human disturbance,  36 but I don't take this witness as being offered as an  37 expert on what causes fires.  38 THE COURT:  I don't think he said that.  39 MR. WILLMS:  And -- well that's -- there is an assumption there,  40 that there is a human presence, my lord.  41 THE COURT:  Yes.  42 MR. WILLMS:  That's an assumption, not a fact or an opinion of  43 the witness.  44 THE COURT:  Yes, all right.  Ms. Koenigsberg?  45 MS. KOENIGSBERG:  I have nothing.  46 THE COURT:  All right.  I see no reason why the tab 2 should not  47 be marked as an exhibit.  So tab 2 will be Exhibit 910?  R. W. Mathewes (for Plaintiffs)  In chief by Ms. Mandell  1 780.  2 THE REGISTRAR:  Exhibit 780.  3  4 (EXHIBIT 780 - Tab 2 of Dr. Mathewes' Book of  5 Documents, Dr. Mathewes' Report)  6  7 MS. MANDELL:  8 Q   Now, with respect to this report, had you produced  9 drafts of this report?  10 A   Yes.  11 Q   And did you keep any copies of the drafts in the  12 course of their production?  13 A   No, I didn't keep them.  14 Q   And are you aware of any person or person's opinion  15 which influenced the changing of this report as  16 between the drafts?  17 A   Yes.  We had discussions with Dr. Jim Pojar of the  18 B.C. Forest Service -- Ministry of Forests, pardon me,  19 and he commented on an earlier draft and made some  20 suggestions as to how, for example, cedar and pine  21 might be differently interpreted than I had in my  22 original draft.  And I did change my opinion to the  23 extent that I emphasized fire somewhat more than I had  24 in my earlier drafts, based on Dr. Pojar's discussion  25 regarding lodgepole pine as being a very important  26 fire species in the area coming in after large burns.  27 And the increase in Seeley Lake in the last 3000  28 years, therefore, was in his opinion, largely  29 attributable to fire rather than to climate change.  30 And I had originally focused on climate change as  31 being sort of the main changing factor, particularly  32 due to the hemlock and cedar curves which suggested a  33 wetting climate.  34 But in response to Jim Pojar's comments, we -- I  35 went back and actually did a subjective charcoal  36 analysis on my pollen slides, because these pollen  37 slides also retain charcoal fragments in the  38 preparation and you can see them under the microscope,  39 and I had originally proposed to do a more indepth  40 charcoal analysis earlier on in my discussions, but  41 that was never authorized.  42 In response to Jim Pojar's comments, then, I went  43 back to the slides and conducted a quick charcoal  44 analysis based on what I could do at the time on my  45 pollen slides.  And based on the evidence there, I did  46 sort of acknowledge a little more strongly that that  47 fire was likely an important factor both at Seeley 9109  R. W. Mathewes (for Plaintiffs)  In chief by Ms. Mandell  1 Lake and at Raspberry Bog.  2 Q   All right.  Did Mr. Pojar's comments have anything to  3 do with the conclusions drawn by you with respect to  4 the clay band?  5 A   I don't believe so.  6 Q   All right.  7 THE COURT:  You are saying that the fact fire was given a more  8 important place in the -- in the vegetation change --  9 THE WITNESS:  Right.  10 THE COURT:  — over climatic changes?  11 THE WITNESS:  Right.  12 MS. MANDELL:  And I'm going to produce and show you a letter  13 that appears to be written by Mr. Pojar, and I'm going  14 to ask whether or not you've seen that letter.  15 MR. WILLMS:  I haven't seen the letter, my lord.  16 MS. MANDELL:  My lord, I've got a copy for my friend.  I was  17 just shown it this morning.  18 A   Yes.  This is a letter dated January 22nd, 1987, that  19 was addressed to myself and a Richard Overstall, and I  20 did receive it around that time.  21 MS. MANDELL:  22 Q   All right.  And is that the letter that you are making  23 reference to that you used as the basis for your  24 further consideration of the fire question?  25 A   Yes, it is.  26 MS. MANDELL:  All right.  I'll ask that that be tendered as an  27 exhibit.  28 MR. WILLMS:  My lord, I don't know whether to object or not,  29 because I just got the letter.  I've been told twice  30 now that I have all of the documents that Dr. Mathewes  31 had, all of them, and that's twice wrong and this is  32 the third time.  I mean documents arise from time to  33 time.  I haven't considered this document, but it's  34 hearsay, it looked --  35 THE COURT:  Are you objecting to it?  36 MR. WILLMS:  I'm objecting to it, my lord, and I can't fully  37 argue the objection at this moment because I haven't  38 read the letter.  39 MS. MANDELL:  My lord, I won't put it in.  4 0 THE COURT:  All right.  41 MS. MANDELL:  If you could turn to tab 5 of the book.  42 THE COURT:  I'm sorry, how do you spell Pojar?  43 THE WITNESS:  P-O-J-A-R.  44 THE COURT:  It's Dr. Pojar, Dr. Jim Pojar?  45 THE WITNESS:  Correct.  4 6 THE COURT:  Okay.  47 MS. MANDELL: 9110  R. W. Mathewes (for Plaintiffs)  In chief by Ms. Mandell  1 Q   And tab 5, is this the further analysis you did with  2 respect to the fire data?  3 A   Yes.  This is a chart outlining a very subjective  4 preliminary assessment of the relative amounts of  5 charcoal as I perceive them on one day of analysis for  6 Seeley Lake and the Raspberry Bog profile, and I've  7 only scored it in two categories.  In order to do it  8 more scientifically, I would have to carefully measure  9 all the charcoal fragments I found and quantitatively  10 represent them.  There wasn't time to do all that, so  11 all I've done is access them visually either as being  12 only occasional or rare, and two crosses meaning that  13 they are quite common, without any assumption on how  14 common.  And I only looked at size fragments of  15 charcoal that were greater than 25 micrometres -- a  16 micrometre being a thousandth of a metre -- so these  17 are quite small microscopic particles.  But it's quite  18 standard practice to analyse charcoal by counting the  19 total area of such fragments on a particular slide.  20 And the analysis -- the preliminary analysis was quite  21 clear, in fact, based on the large number of double  22 cross entries above the 0 to 95 centimetres in the  23 core.  Sort of in approximately the last 3000 years,  24 which does suggest that the more recent sediments near  25 the top of the Seeley Lake core have more charcoal in  26 them for whatever reason than this suggests, that  27 perhaps fires were more frequent in the area and that  28 could well account for the increase, again, in the  29 lodgepole pine which I wouldn't have expected to  30 increase there at this low elevation in regard to  31 climatic change.  32 MS. MANDELL:  I would ask that tab 5 be marked the next exhibit.  33 MR. WILLMS:  No objection, my lord.  34 THE COURT:  All right, thank you.  35 THE REGISTRAR:  Exhibit 781 is tab 5.  36  37 (EXHIBIT 781 - Tab 5 of Dr. Mathewes' Book of  38 Documents)  39  40 MS. MANDELL:  Thank you.  Those are all of my questions with  41 this witness.  42 THE COURT:  Thank you.  43 MS. MANDELL:  44 Q   Oh, I'm sorry.  Sorry, I've got one other series of  45 questions.  46 When you received Dr. Gottesfeld's work, you said  47 that you then conducted your own investigation with 9111  R. W. Mathewes (for Plaintiffs)  In chief by Ms. Mandell  1 respect to the viewing of aerial photos to see if you  2 could yourself identify a landslide activity in the  3 area.  And I would like to produce and show to you  4 three aerial photographs and I would ask you whether  5 or not these are the photographs which you used to  6 identify whether there was a landslide area visible to  7 you?  8 A  Well, these are definitely my photographs, but the  9 prime purpose of getting the photographs, initially,  10 was also to accurately map the marsh deposits around  11 Seeley Lake, and I also made sure that they included  12 the Chicago Creek fan area which I looked at  13 stereoscopically, and it did appear to me that there  14 was clearly a bulge of material that had come out of  15 Chicago Creek and appeared to have deflected the  16 drainage of the waters out of Seeley Lake.  I didn't  17 do anything beyond just driving around the area  18 looking at this, perfunctorily, but just to satisfy  19 myself that there was some evidence of a possible  20 blockage of this drainage.  21 Q   I wonder if you could, with reference to photograph  22 138 of the series, with your red pen that you've got  23 in your hand, could you mark where the alluvial fan is  24 which you saw from the air and the potential blocked  25 drainage system?  26 A  Well, I can only do this very generally, because to do  27 this properly I would have to have a stereoscope in  28 order to see it in three dimensions.  On a flat scale  29 like this you can't see the contours well enough to do  30 that.  You can certainly see it's in this general area  31 here, but the actual outlines you would have to do  32 stereoscopically.  33 THE COURT:  You've marked it in red, have you?  34 MS. MANDELL:  Yes.  With a red triangle.  35 A   Just a general fan surface, but certainly not the  36 detailed contours.  37 Q   And you did the stereoscopic analysis as well?  38 A   Yes.  39 MS. MANDELL:  All right.  I ask that those photographs be marked  40 as exhibits.  41 THE COURT:  Any objection?  42 MR. WILLMS:  I don't have any objection.  43 THE COURT:  Ms. Koenigsberg?  All right, 782, A, B and C.  44 THE REGISTRAR:  782.  45 THE COURT:  A will be the one marked in red and the B and C in  46 order.  47 MS. MANDELL:  And you can indicate that with respect to the 9112  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  R. W. Mathewes (for Plaintiffs)  In chief by Ms. Mandell  Cross-exam by Mr. Willms  book, I've got a spare tab there, tab 6, and perhaps  you can just --  THE COURT:  All right, tab 6.  (EXHIBIT 782 - Tab 6 of Mr. Mathewes' Book of  Documents, 3 Aerial Photographs)  THE  MS.  THE  MS.  THE  MS.  THE  MS.  MR.  THE  THE  COURT:  What do you want to do with tab 7 and 8, Ms.  Mandell?  MANDELL:  I think my friend wishes to refer to it, tab 8.  If not, then I'll pull it.  COURT:  You can extract anything that's not used.  MANDELL:  My lord, I'll pull out seven and —  REGISTRAR:  Eight is marked.  MANDELL:  Eight is marked as an exhibit.  REGISTRAR:  Yes, eight is 778.  MANDELL:  So I think we've done all the tabs.  Three we  haven't identified.  I might advise your lordship that  in the report, reference is made to this figure but it  wasn't included in the report, so we retrieved it  later and this is what it is.  I think this really is  just part and parcel of two, only it's a missing  diagram.  WILLMS:  I don't have any objection to it being marked  separately or with the report.  COURT:  All right.  It can be the next exhibit, 783.  REGISTRAR:  783 is tab 3.  (EXHIBIT 783  Documents)  Tab 3 of Mr. Mathewes' Book of  MS. MANDELL:  Thank you.  THE COURT:  All right, thank you.  Mr. Willms, are you next?  If I might have a moment, my lord,  as an exhibit?  Tab 4 is 779, it's the letter.  MR. WILLMS:  THE COURT:  Was tab 4 marked  THE REGISTRAR:  Yes, my lord.  THE COURT:  Yes, thank you.  CROSS-EXAMINATION BY MR. WILLMS:  Q   Dr. Mathewes, have you brought your complete file on  this report with you to court today?  A   Yes, I have.  Q   And it's either with you or with your counsel?  A   Yes.  Q   Thank you.  Or with the counsel for the plaintiffs,  I'm sorry.  Now, you said that one of the objectives  of your study was to provide a general description of 9113  R. W. Mathewes (for Plaintiffs)  Cross-exam by Mr. Willms  1 the postglacial history of vegetation and climate for  2 the study region?  3 A   Um-hmm.  4 Q   Is that correct?  5 A   I believe so.  6 Q   And the other objective, if I can shorten it, is to  7 determine if evidence of past landslide activity could  8 be found and dated in Seeley Lake near Hazelton?  9 A   Yes.  10 Q   Before you wrote your report, there was also an  11 exchange of correspondence between you and a Mr.  12 Richard Overstall about the scope of the task that you  13 would fulfil?  14 A   Yes.  15 Q   All right.  And part of that initial task that you  16 were to fulfil -- and I'm speaking pre the contract  17 that's already been marked -- was in part to provide  18 detailed corroboration of oral history.  Is that part  19 of the task that you were asked?  20 A   Not specifically as a task.  If something turned up  21 during my investigation that would support an oral  22 history -- I certainly heard of an oral history of a  23 landslide in that area -- and if it could aid that  24 interpretation in some way, of course they would be  25 happy to have it.  And I was certainly aware that the  26 Medeek legend and landslide in Seeley Lake was an  27 object of interest by the band.  28 Q   I'm showing you a document that your counsel disclosed  29 dated July 11th, 1985, which is entitled "Summary  30 Proposal for Paleoenvironmental Research for the  31 Gitksan-Wet'suwet'en Tribal Council"?  32 A   Yes.  33 Q   Is that the document that you prepared and sent to Mr.  34 Overstall?  35 A   Yes, it is.  36 MR. WILLMS:  All right.  Could that be — now, my lord, if I  37 might, and I hope that this is a more convenient way  38 to do it, I have brought empty binders with no tabs --  39 no documents in them, and I was going to add to the  40 binder tab by tab and update the index daily.  41 THE COURT:  Yes.  42 MR. WILLMS:  And I propose that I mark the binder as an exhibit  43 number and then from then on, refer to the tabs as  44 exhibit whatever the number is, tab blank, and then  45 all of the expert cross-examination documents would be  46 easily available.  47 THE COURT:  Not just for this witness? 9114  R. W. Mathewes (for Plaintiffs)  Cross-exam by Mr. Willms  WILLMS:  Not just for this witness.  I was intending to  carry on with Dr. Gottesfeld with this exhibit until  it was filled up and then bring another one and then  have it grey so that it would be easily demarcated.  I've spoken to both of my friends and they thought  that it might be a good idea.  COURT:  Well, if there is no objection, you are welcome to  proceed that way.  WILLMS:  Well, if I might, my lord, I have one binder which  I would like to be marked as the next exhibit, another  for your lordship.  COURT:  Thank you.  WILLMS:  And I propose the next number is 784.  COURT:  Yes.  WILLMS:  I propose that the binder be marked as Exhibit 784  and that the first document at tab 1 in the binder be  the Summary for Paleoenvironmental Research prepared  by Dr. Mathewes on July 11th, 1985.  COURT:  That will be 784, tab 1.  REGISTRAR:  Do you want that as a separate exhibit or 784-1?  WILLMS:  If we can call it 784-1 or tab 1.  REGISTRAR:  Okay.  COURT:  Dash one is fine, that indicates the tab number.  The book itself will eventually become Exhibit 784.  (EXHIBIT 784 - Grey Binder containing Plaintiffs'  Experts Cross-Examination Documents)  (EXHIBIT 784-1 - Tab 1 of Grey Binder, Summary  Proposal for Paleoenvironmental Research prepared by  Dr. Mathewes dd. July 11, 1985)  WILLMS:  Q   Dr. Mathewes, if you turn to the first page of that,  you describe task 1, general description of the  postglacial vegetation and climate of the study  region?  A   Um-hmm.  Q   That was your first task; is that correct?  A   This is my proposal task.  Q   Yes, all right.  And then on the second page, your  proposal task 2 is detailed corroboration of oral  history?  A   Right.  I'm using Mr. Overstall's language.  I had  various telephone conversations with Mr. Overstall and  he asked me to prepare this quickly in order to  outline some research that might be done in this area,  1  MR.  2  3  4  5  6  7  THE  8  9  MR.  10  11  12  THE  13  MR.  14  THE  15  MR.  16  17  18  19  THE  20  THE  21  MR.  22  THE  23  THE  24  25  26  27  28  29  30  31  32  33  MR.  34  35  36  37  38  39  40  41  42  43  44  45  46  47 9115  R. W. Mathewes (for Plaintiffs)  Cross-exam by Mr. Willms  1 and he was clearly interested in detailed  2 corroboration of oral history but that was not my  3 particular interest.  I'm using his wording, because  4 he asked me to prepare the proposal.  5 Q   Now, you still have Exhibit 780 in front of you.  6 A  Which is 780?  7 Q   780 is tab 2 of the witness brief, it's your report.  8 A   Okay.  Yes, I do.  9 Q   And if you can turn to figure 4 which is between pages  10 16 and 17?  11 A   Yes.  12 Q   You did three radiocarbon dates on the core at the  13 edge of the marsh, and those dates ranged from 7550  14 before the present to 2640 before the present to 750  15 before the present?  16 A   Correct.  17 Q   All right.  And with respect to -- and you've already  18 described the other dates on core A.  In respect of  19 both cores, the sediments become older as the core  20 deepens?  21 A   Correct.  22 Q   And what you were looking for was evidence of a  23 disturbance due to a rapid rise in water level around  24 3500 B.P.?  25 A   Yes, that was my intent.  26 Q   All right.  That's what you were looking for?  27 A   Yes.  28 Q   And one of the things that would be evidence of a  29 disturbance would be the presence of silt or clay  30 which might be derived from soil erosion by rising  31 water levels?  32 A   In a deep water basin, yes.  In the shallow waters  33 where you would expect the erosion to take place, I --  34 it could or could not be present.  It wouldn't  35 necessarily have to be there in the shallow edges.  36 Q   All right.  Another possibility for evidence of a  37 disturbance might be evidence of terrestrial plant  38 remains washing into the lake?  39 A   Yes.  40 Q   And a further possibility would be an increase of  41 aquatic plant productivity?  42 A   Yes.  43 Q   Now just looking at core B, the detritus at 2640  44 before the present?  4 5 A   Um-hmm.  46 Q   Might be evidence of a disturbance due to a rapid rise  47 in water; is that correct? 9116  R. W. Mathewes (for Plaintiffs)  Cross-exam by Mr. Willms  1 THE COURT:  Sorry, what are you looking at?  2 MR. WILLMS:  3 Q   I'm looking at core B.  4 A   Yes.  5 Q   There is detritus, D-E-T-R-I-T-U-S.  I'm on figure 4  6 still, my lord, and if you look, the carbon dates are  7 down the right-hand side and at 2640 plus or minus 80  8 there is detritus identified, and my question was,  9 could that detritus be evidence of a disturbance due  10 to a rapid rise in water level?  11 A   It's possible, but unlikely.  I looked at the detritus  12 zones carefully, and detritus in the broad sense of  13 being plant fragments, they tend to accumulate at the  14 edges in the shallows of a lake anyway.  Therefore,  15 coarser material is always going to be present in the  16 shallow water of a lake.  And what I was looking for  17 was some really striking event that was different from  18 the other material that was clear evidence of a rise  19 in water level.  The detritus level could represent  20 that but not necessarily, because detritus is very  21 common in the shallows of lakes anyway.  22 Q   In fact, detritus is very common on the shores of  23 lakes; isn't that correct?  24 A   Yes.  Particularly lakes that have water running in  25 them that's carrying a lot of wood and such in.  26 Q   That's right.  And so if you found coarse gyttja over-  27 lying detritus, that might indicate that the detritus  28 is at or about where an old lake level was?  29 A   It's a possibility, yes.  30 Q   So the lake could have risen since that point and that  31 detritus, it could have been evidence of a rapid rise  32 in water?  33 A   Could have been, yes.  34 Q   Now, so that's the 2640.  What about the 750, the  35 peat.  Could the sandy peat at 750 years before the  36 present be as a result of a disturbance due to a rapid  37 rise in water level?  38 A   Yes, it could.  It could also be a draw down in water  39 level or a lowering of water level, but the input of  40 sand indicates some sort of disturbance.  41 Q   So, what you can say from figure 4, is that there may  42 have been a disturbance due to a rapid rise in water  43 at 3380 before the present, that's in core A?  44 A   Core A, yes.  45 Q   There may have been a disturbance due to a rapid rise  46 in water at 2640 before the present?  47 A   Could have been, but less strongly than in core A. 9117  R. W. Mathewes (for Plaintiffs)  Cross-exam by Mr. Willms  1 Q   And there may even have been a disturbance due to a  2 rapid rise in water level at 750 years before the  3 present?  4 A   Possibly.  5 Q   And if you just turn to figure 6 which is between  6 pages 20 and 21.  7 THE COURT:  What, figure 6?  8 MR. WILLMS:  9 Q   Figure 6, my lord, between pages 20 and 21.  This  10 relates to core A.  11 A   Yes.  12 Q   Where is the comparable figure for core B?  13 A   I didn't conduct the macrofossil analysis on core B.  14 Q   You said in your evidence in chief, and I think you  15 were referring to --  16 A   I'm sorry, I don't know what "in chief" means.  17 Q   You said in your earlier evidence, I'm sorry.  You  18 said in your earlier evidence, and I think you were  19 referring to figure 7, maybe it was figure 8, it was  20 either figure 8 or figure 7, but you said that the --  21 the increase in alnus --  22 A   Yes.  23 Q   -- after clay 1 is consistent with an increased growth  24 of a -- is that an alder?  25 A   Of alder.  26 Q   Of alder?  27 A   Yes.  28 Q   Which grows, as I think you said, on a debris slope or  29 something like that?  30 A   Disturbed areas.  31 Q   All right.  And that alnus at clay 1, could that be  32 indicative of a landslide to the south or the west of  33 Seeley Lake?  34 A   It would de -- yes.  The geographic area I don't think  35 would matter too much.  It would have to be in the  36 area of Seeley Lake somewhere.  37 Q   Because it's wind-blown pollen?  38 A   Right.  39 Q   And so long as you are within the wind-blowing  40 distance, that's the relevant fact, isn't it?  41 A   Right, um-hmm.  42 Q   The clay 1 results that you've described, you say that  43 they could be -- they are consistent with a landslide  44 blocking the lake?  45 A   Something blocking the drainage, yes.  46 Q   They could be consistent with the landslide into part  47 of the lake, couldn't it? 911?  R. W. Mathewes (for Plaintiffs)  Cross-exam by Mr. Willms  1 A   If there was such an event, yes.  2 Q   They could be consistent with, for example, the Skeena  3 River flooding to the level of Seeley Lake?  4 A   I doubt that.  If a river of the magnitude of the  5 Skeena were to be high enough to get up to that  6 elevation, we would see a much greater degree of  7 disturbance.  I mean a flooded end of a river of that  8 magnitude is either going to bring whole trees or logs  9 or scour the sediments out.  It would be a very strong  10 signature if that was the case.  I rather doubt that  11 that was the case.  12 Q   But it's possible?  13 A   I don't even know if it's possible.  I would have to  14 check the elevation of Seeley Lake relevant to the  15 known levels of the river which I haven't studied.  16 Q   And depending on that, it may or may not be possible?  17 A   I guess it's a remote possibility, yes.  18 Q   Could the clay 1 results have been caused by a  19 landslide into a tributary of Seeley Lake?  20 A  A tributary?  I don't know of any tributaries.  21 Tributaries I refer to as streams or permanently  22 flowing rivers into Seeley Lake.  23 Q   Yes.  The water that gets into Seeley Lake --  24 A   Yes.  25 Q   -- gets there from somewhere?  2 6 A   Right.  27 Q   Could the landslide have affected the water that is  28 going into Seeley Lake and caused what you saw at clay  29 1?  30 A   Yes, I think that's possible.  31 Q   Isn't it the case that really what you can say with  32 confidence from what your investigations have turned  33 up, is that there was a rapid water rise and there are  34 a number of things that might have caused that?  35 A   That was my initial supposition, yes.  36 Q   Yes.  And the deposit could have been caused by any  37 one of the things that I've just mentioned?  38 A  As a possibility, although I certainly favour one  39 explanation over the others.  40 Q   You know that landslides are very common in this area?  41 A   Yes.  42 Q   In your correspondence with Mr. Overstall before you  43 signed your contract, did you ever discuss looking for  44 paleoenvironmental evidence of the great snow fall?  45 A   Yes.  After discussing various lines of evidence with  46 Mr. Overstall, I just attended a meeting in Ottawa on  47 the Canadian Committee for Climatic Change and Man, 9119  R. W. Mathewes (for Plaintiffs)  Cross-exam by Mr. Willms  1 who was preparing a special symposium, I believe,  2 last -- this year, on the year without a summer.  And  3 I've always been interested in climatic information,  4 so I thought if they could get a tree-ring person or  5 something to look for evidence of that event in the  6 east, it might be interesting.  7 Q   All right.  And in fact, you suggested that to Mr.  8 Overstall, and that's at Exhibit 784-1 on page 2.  And  9 I'm speaking under task 2, the paragraph -- the second  10 paragraph under 2.0?  11 A   Um-hmm.  12 Q   And was that one of the things that you were initially  13 asked to consider doing paleoenvironmental research in  14 respect of?  15 A   No.  I think this is something I based on, my having  16 attended these meetings, because it was of relatively  17 recent origin and I thought it was something that they  18 would be interested in knowing about and could use to  19 check their oral histories, perhaps.  20 Q   All right.  So it wasn't -- it was your idea not  21 anyone else's?  22 A   I believe so, yes, I think it was my idea.  23 Q   All right.  In any event, you weren't asked to do  24 that?  25 A   No.  26 Q   What was the little ice age?  27 A   The little ice age is a geological term which refers  28 to a period beginning around five to 6000 years ago,  29 well after the main ice age had ended, when there is  30 evidence in various parts of western North America of  31 glacier activity starting again in the higher mountain  32 areas.  And different authors have used different  33 definitions for exactly what the neoglacial or the  34 little ice age is.  Some people talk only of events  35 since about the year 1400, other people talk about the  36 neoglacial ice age as representing several thousands  37 of years.  I don't think there is a clear consensus  38 exactly on how that term should be applied, but it  39 definitely refers to relatively recent, in the order  40 of a few thousand years, resurgence of glacial  41 activity, particularly in North America.  42 Q   All right.  And is that something that you are able to  43 detect in your paleoenvironmental research?  44 A   Yes.  In fact, evidence of climates becoming wetter  45 and/or colder is often reflected in the pollen  46 diagrams that are constructed for various areas.  47 Effects such as the growth of peatbogs where 9120  R. W. Mathewes (for Plaintiffs)  Cross-exam by Mr. Willms  1 previously there weren't any growing on level terrain  2 indicates that the conditions for peatbog growth have  3 improved, which is generally an indication of  4 increased wetness and perhaps cooling.  5 And I've just directed a masters degree student in  6 Simon Fraser University who completed a thesis on  7 muskeg growth in the Queen Charlotte Islands which  8 confirmed very nicely, and we are hoping to publish it  9 soon, that there was clearly an expansion of the peat  10 lands on the Queen Charlottes during the period that's  11 generally referred to as the little ice age, within  12 the last 5000 years.  13 Q   And in fact, perhaps, leading up to as late as 1850,  14 mid-1800s?  15 A   Yes.  16 Q   Now, you've already had your contract referred to you  17 in the scope of the work that you were to do.  You  18 sent a draft of your report on April 2nd, 1986, to Mr.  19 Overstall?  20 A   Yes.  21 MR. WILLMS:  Now, my lord, on this point, my friend -- I now  22 have an exchange of correspondence from my friend  23 which is not blacked out.  My friend has an objection  24 that she wants to maintain, but doesn't mind if the  25 document goes in.  The problem is I haven't  26 photocopied a clean copy of both of these documents.  27 MS. MANDELL:  Maybe I can speak for myself.  28 We delivered on April -- we delivered the April  29 2nd letter to my friend blacked out.  The black-outs  30 represented material that we thought was either  31 irrelevant or privileged.  I'm prepared, because I  32 don't want to delay this witness, and I don't think  33 the point is only one that this witness is going to  34 have to deal with, to permit my friend the full text  35 of the letter for the purposes of his cross-  36 examination, subject to us being able to argue these  37 points when the matter is to be argued with respect to  38 Dr. Gottesfeld or the other people.  39 So with that in mind, I don't mind the court  40 seeing the letters both blacked out and also in its  41 original form, but I don't -- I don't take the  42 position that the privilege is waived and that the  43 letter can be introduced as evidence.  44 THE COURT:  All right.  45 MR. WILLMS:  My lord, that brings me to this, and since it's  46 almost four o'clock and I'm not going to finish in  47 three minutes, I suggest we adjourn now so that I can 9121  R. W. Mathewes (for Plaintiffs)  Cross-exam by Mr. Willms  1 replace the blacked out copies that I was going to  2 file in evidence with the clean copies and then carry  3 on at ten tomorrow.  4 THE COURT:  All right.  Ten o'clock tomorrow morning, please.  5 THE REGISTRAR:  Order in court.  Court will adjourn.  6  7  8  9 (PROCEEDINGS ADJOURNED AT 4:00 p.m.)  10  11 I hereby certify the foregoing to be  12 a true and accurate transcript of the  13 proceedings herein transcribed to the  14 best of my skill and ability.  15  16  17  18  19    20 Toni Kerekes,  21 O.R., R.P.R.  22 United Reporting Service Ltd.  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47

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